EXHIBIT 4.3
(1995 10-K)
EXECUTION COPY
MULTICURRENCY CREDIT AGREEMENT
dated as of August 22, 1995
among
APPLIED POWER INC.,
APPLIED POWER FINANCE S.A.,
VARIOUS FINANCIAL INSTITUTIONS,
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Agent
Arranged by
BA SECURITIES, INC.
TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS AND INTERPRETATION . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Other Interpretive Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1.3 Accounting Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1.4 Currency Equivalents Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE II THE CREDITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.1 Amounts and Terms of Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.2 Loan Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.3 Procedure for Committed Borrowing . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.4 Conversion and Continuation Elections for Committed Borrowings . . . . . . . . . . . . . 22
2.5 Utilization of Revolving Commitments in Offshore Currencies. . . . . . . . . . . . . . . 24
2.6 Bid Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.7 Procedure for Bid Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.8 Voluntary Termination or Reduction of Commitments . . . . . . . . . . . . . . . . . . . 30
2.9 Optional Prepayments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.10 Currency Exchange Fluctuations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.11 Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.12 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.13 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
2.14 Computation of Fees and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.15 Payments by the Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
2.16 Payments by the Banks to the Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2.17 Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.1 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.2 Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
3.3 Increased Costs and Reduction of Return . . . . . . . . . . . . . . . . . . . . . . . . 37
3.4 Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
3.5 Inability to Determine Rates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.6 Certificates of Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3.7 Substitution of Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
3.8 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE IV CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.1 Conditions of Initial Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
4.2 Conditions to All Borrowings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE V REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.1 Organization, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.2 Authorization; No Conflict . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.3 Validity and Binding Nature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
5.4 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
(i)
5.5 No Material Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
5.6 Litigation and Contingent Liabilities . . . . . . . . . . . . . . . . . . . . . . . 43
5.7 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.8 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.9 Pension and Welfare Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.10 Regulated Industry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.11 Regulations G, U and X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
5.12 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.13 Environmental and Safety Matters . . . . . . . . . . . . . . . . . . . . . . . . . . 45
5.14 Compliance with Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.15 Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.16 Ownership of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.17 Ownership of Properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.18 Patents, Trademarks, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
5.19 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
ARTICLE VI COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
6.1 Reports, Certificates and Other Information . . . . . . . . . . . . . . . . . . . . 47
6.2 Books, Records and Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.3 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.4 Compliance with Law; Payment of Taxes and Liabilities . . . . . . . . . . . . . . . 49
6.5 Maintenance of Existence, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
6.6 Financial Ratios and Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.7 Mergers, Consolidations, Purchases and Sales . . . . . . . . . . . . . . . . . . . . 50
6.8 Commercial Paper Lines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.9 Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
6.10 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.11 Maintenance of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.12 Employee Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
6.13 Business Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.14 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.15 Unconditional Purchase Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 53
6.16 Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.17 Transactions with Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6.18 The Company's and Subsidiaries' Stock . . . . . . . . . . . . . . . . . . . . . . . 54
6.19 Negative Pledges; Subsidiary Payments . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE VII EVENTS OF DEFAULT AND THEIR EFFECT . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7.2 Effect of Event of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE VIII THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
8.1 Appointment and Authorization; Agent . . . . . . . . . . . . . . . . . . . . . . . . 57
8.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
8.3 Liability of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
8.4 Reliance by Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
8.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.6 Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
8.7 Indemnification of Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
8.8 BAI in Individual Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
(ii)
8.9 Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
8.10 Withholding Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE IX GUARANTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
9.1 Guarantee from Borrowers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
9.2 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
9.3 Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
9.4 No Impairment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
9.5 Waiver of Resort . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.6 Reinstatement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.7 Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.8 Subrogation, Waivers, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
9.9 Delay, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.1 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
10.3 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.4 Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
10.5 Borrower Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.6 Payments Set Aside . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
10.7 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
10.8 Assignments, Participations, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 69
10.9 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.10 Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
10.11 Notification of Addresses, Lending Offices, Etc. . . . . . . . . . . . . . . . . . . . 72
10.12 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.13 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.14 No Third Parties Benefited . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.15 Governing Law and Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
10.16 Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.17 Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
10.18 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
(iii)
SCHEDULES and EXHIBITS
Schedule 1.1 Disclosure Schedule
Item 5.6 Litigation
Item 5.8 Subsidiaries
Item 5.13 Environmental Matters
Item 5.18 Patents, Trademarks
Item 5.19 Insurance
Item 6.9 Liens
Schedule 1.2 Pricing Grid
Schedule 2.1 Commitments
Schedule 10.2 Lending Offices, Addresses for Notices
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinions of Borrowers' Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F-1 Form of Bid Note
Exhibit F-2 Form of Committed Note
Exhibit G Form of Legal Opinion of Agent's Counsel
Exhibit H Form of Invitation for Competitive Bids
Exhibit I Form of Competitive Bid Request
Exhibit J Form of Competitive Bid
(iv)
MULTICURRENCY CREDIT AGREEMENT
THIS MULTICURRENCY CREDIT AGREEMENT (this "Agreement") dated as of
August 22, 1995 is among APPLIED POWER INC., a Wisconsin corporation (the
"Company"), APPLIED POWER FINANCE S.A., a French corporation ("APSA"), the
financial institutions listed on the signature pages hereof (together with
their respective successors and assigns, collectively the "Bank" and
individually each a "Bank"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION as agent for the Banks.
ARTICLE I
CERTAIN DEFINITIONS AND INTERPRETATION
1.1 Defined Terms. When used herein the following terms have the
following meanings (such meanings to be applicable to both the singular and
plural forms of the terms defined):
"Absolute Rate" has the meaning specified in Section
2.7(c).
"Absolute Rate Bid Loan" means a Bid Loan that bears
interest at a rate determined with reference to the Absolute Rate.
"Affiliate" means, with respect to any Person, any other
Person which, directly or indirectly, controls, is controlled by or
is under common control with such Person. For purposes of this
definition, "control" (together with the correlative meanings of
"controlled by" and "under common control with") means possession,
directly or indirectly, of the power (a) to vote 5% or more of the
securities (on a fully diluted basis) having ordinary voting power for
the directors or managing general partners (or their equivalent) of
such Person or (b) to direct or cause the direction of the
management or policies of such Person, whether through the ownership
of voting securities, by contract or otherwise.
"Agent" means BofA in its capacity as agent for the Banks
hereunder, and any successor agent arising under Section 8.9.
"Agent-Related Persons" means BofA and any successor
agent arising under Section 8.9, together with their respective
Affiliates (including, in the case of BofA, the Arranger), and the
officers, directors, employees, agents and attorneys-in-fact of such
Persons and Affiliates.
"Agent's Payment Office" means (a) in respect of
payments in Dollars, the address for payments set forth on Schedule
10.02 or such other address as the Agent may from time to time
specify in accordance with Section 10.2, and, (b) in the case of
payments in any Offshore Currency, such address as the Agent may from
time to time specify in accordance with Section 10.2.
"Agreed Alternative Currency" has the meaning specified
in Section 2.5(e).
"Agreement" means this Multicurrency Credit Agreement.
"Applicable Currency" means, as to any particular
payment or Loan, Dollars or the Offshore Currency in which it is
denominated or is payable.
"Applicable Margin" means, with respect to Offshore
Rate Loans, the rate set forth opposite "Offshore Margin" on the
Pricing Grid for the applicable Pricing Level.
"Applicable Non-Use Fee Rate" means the rate set forth
opposite "Non-Use Fee" on the Pricing Grid for the applicable
Pricing Level.
"APSA" - see the Preamble.
"Arranger" means BA Securities, Inc., a Delaware
corporation.
"Assignee" - has the meaning specified in Section 10.8.
"Assignment and Acceptance Agreement" - see Section 10.8.
"Attorney Costs" means and includes all reasonable fees
and disbursements of any law firm or other external counsel, the
reasonable allocated cost of internal legal services and all
reasonable disbursements of internal counsel.
"Authorized Officer" means, relative to each Borrower,
those of its officers whose signatures and incumbency shall have
been certified to the Banks pursuant to Section 4.1(b).
"BAI" means Bank of America Illinois and, in the case
of Bid Loans, Bank of America Illinois or its designated Affiliate
making such Bid Loans.
2
"Banking Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in New York City,
Chicago or San Francisco are authorized or required by law to close
and (a) with respect to disbursements and payments in Dollars, a day
on which dealings are carried on in the applicable offshore Dollar
interbank market, and (b) with respect to any disbursements and
payments in and calculations pertaining to any Offshore Currency
Loan, a day on which commercial banks are open for foreign exchange
business in London, England, and on which dealings in the relevant
Offshore Currency are carried on in the applicable offshore foreign
exchange interbank market in which disbursement of or payment in such
Offshore Currency will be made or received hereunder.
"Base Rate" means, for any day, the higher of: (a)
0.50% per annum above the latest Federal Funds Rate; and (b) the
rate of interest in effect for such day as publicly announced from
time to time by BofA in San Francisco, California, as its "reference
rate." (The "reference rate" is a rate set by BofA based upon
various factors including BofA's costs and desired return, general
economic conditions and other factors, and is used as a reference
point for pricing some loans, which may be priced at, above, or below
such announced rate.) Any change in the reference rate
announced by BofA shall take effect at the opening of business on the
day specified in the public announcement of such change.
"Base Rate Loan" means a Committed Loan that bears
interest based on the Base Rate.
"Bid Borrowing" means a Borrowing hereunder consisting
of one or more Bid Loans made to the Company on the same day by one
or more Banks.
"Bid Loan" means a Loan by a Bank to the Company under
Section 2.6.
"Bid Loan Bank" means, in respect of any Bid Loan, the
Bank making such Bid Loan to the Company.
"Bid Note" means, a promissory note of the Company,
substantially in the form of Exhibit F-1, duly completed, evidencing
Bid Loans made to the Company, as such Note may be replaced, amended
or otherwise modified from time to time.
"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
3
"Borrower" means the Company and/or APSA, as applicable.
Borrowing means a borrowing hereunder consisting of
Loans of the same Type made to a Borrower on the same day by the
Banks or (in the case of Bid Borrowings) under Article II, and may be
a Committed Borrowing or a Bid Borrowing and, other than in the case
of Base Rate Loans, having the same Interest Period.
"Borrowing Date" means any date on which a Borrowing
occurs under Section 2.3.
"Business Day" means any day other than a Saturday,
Sunday or other day on which commercial banks in New York City,
Chicago or San Francisco are authorized or required by law to close
and, if the applicable Business Day relates to any Offshore Rate
Loan, means a Banking Day.
"Canadian Dollars" means lawful money of Canada.
"Capital Adequacy Regulation" means any guideline,
request or directive of any central bank or other Governmental
Authority, or any other law, rule or regulation, whether or not
having the force of law, in each case, regarding capital adequacy of
any bank or of any corporation controlling a bank.
"Capital Lease" means, with respect to any Person, any
lease of (or other agreement conveying the right to use) any real or
personal property which, in conformity with GAAP, is accounted for as
a capital lease on the balance sheet of such Person.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended.
"Closing Date" means the date on which all conditions
precedent set forth in Section 4.1 are satisfied or waived by all
Banks (or, in the case of Section 4.1(g), waived by the Person
entitled to receive such payment).
"Code" means the Internal Revenue Code of 1986.
"Commitment", as to each Bank, has the meaning specified
in Section 2.1.
"Committed Borrowing" means a Borrowing hereunder
consisting of Committed Loans made on the same day by the Banks
ratably according to their
4
respective Pro Rata Shares and, in the case of Offshore Rate Loans,
having the same Interest Periods.
"Committed Loan" means a Loan by a Bank to a Borrower
under Section 2.1, and may be an Offshore Rate Loan or a Base Rate
Loan (each, a "Type" of Committed Loan).
"Committed Note" means a promissory note of a
Borrower substantially in the form of Exhibit F-2, duly
completed, evidencing Committed Loans to such Borrower, as such Note
may be replaced, amended or otherwise modified from time to time.
"Company" - see the Preamble.
"Competitive Bid Request" has the meaning specified in
Section 2.7(a).
"Compliance Certificate" means a certificate
substantially in the form of Exhibit C.
"Computation Period" means any period of four consecutive
Fiscal Quarters ending on the last day of a Fiscal Quarter.
"Consolidated Interest Expense" means, for any
period, the consolidated interest expense of the Company and
its Subsidiaries for such period, as determined in accordance with
GAAP and in any event including, without duplication, all
commissions, discounts and other fees and charges owed with respect
to letters of credit and banker's acceptances, net costs under
interest rate protection agreements and the portion of any Capital
Leases allocable to consolidated interest expense.
"Consolidated Net Income" means, for any period, all
amounts which, in conformity with GAAP, would be included under net
income on a consolidated income statement of the Company and its
Subsidiaries for such period.
"Contractual Obligation" means, relative to the Company
or any Subsidiary, any provision of any security issued by the
Company or such Subsidiary or of any Instrument or undertaking to
which the Company or such Subsidiary is a party or by which it or any
of its property is bound.
"Controlled Group" means all members of a controlled
group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together
5
with the Company or APSA, are treated as a single employer under
Section 414(b) or 414(c) of the Code or Section 4001 of ERISA.
"Conversion/Continuation Date" means any date on which,
under Section 2.4, a Borrower (a) converts Committed Loans of one
Type to another Type, or (b) continues as Committed Loans of the
same Type, but with a new Interest Period, Committed Loans having
Interest Periods expiring on such date.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, whether or not
evidenced by bonds, debentures, notes or similar instruments, (b)
all obligations of such Person as lessee under Capital Leases which
have been recorded as liabilities on a balance sheet of such Person,
(c) all obligations of such Person to pay the deferred purchase
price of property or services (other than current accounts payable in
the ordinary course of business), (d) all indebtedness secured by a
Lien on the property of such Person, whether or not such
indebtedness shall have been assumed by such Person (it being
understood that if such Person has not assumed or otherwise become
personally liable for any such indebtedness, the amount of the Debt
of such Person in connection therewith shall be limited to the lesser
of the face amount of such indebtedness or the fair market value of
all property of such Person securing such indebtedness), (e) all
obligations, contingent or otherwise, with respect to the face
amount of all letters of credit (whether or not drawn) and banker's
acceptances issued for the account of such Person, (f) all
obligations of such Person in respect of Swap Contracts, (g) all
Suretyship Liabilities of such Person and (h) all Debt (as defined
above) of any partnership in which such Person is a general
partner. The amount of the Debt of any Person in respect of Swap
Contracts shall be deemed to be the unrealized net loss position of
such Person thereunder (determined for each counterparty individually,
but netted for all Swap Contracts maintained with such counterparty).
"Debt to Capital Ratio" means the ratio of (a) Funded
Debt to (b) Total Capital.
"Default" means any event which if it continues uncured
will, with lapse of time or notice or lapse of time and notice,
constitute an Event of Default.
"Determination Date" has the meaning specified in Section
2.5(a).
6
"Deutsche Mark" means lawful money of the Federal Republic of
Germany.
"Disclosure Schedule" means the Disclosure Schedule attached
hereto as Schedule 1.01.
"Dollar Equivalent" means, at any time, (a) as to any amount
denominated in Dollars, the amount thereof at such time, and (b) as
to any amount denominated in an Offshore Currency, the equivalent
amount in Dollars as determined by the Agent at such time on the
basis of the Spot Rate for the purchase of Dollars with such
Offshore Currency on the most recent Determination Date provided for
in Section 2.5(a).
"Dollar(s)" and the sign "$" mean lawful money of the United
States of America.
"Domestic Subsidiary" means a Subsidiary that is created or
organized in or under the law of the United States, any State
thereof or the Commonwealth of Puerto Rico.
"Eligible Assignee" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and
having a combined capital and surplus of at least $100,000,000; (b)
a commercial bank organized under the laws of any other country
which is a member of the Organization for Economic Cooperation and
Development, or a political subdivision of any such country, and
having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located
in the United States; and (c) a Person that is primarily engaged in
the business of commercial banking and that is (i) a Subsidiary of a
Bank, (ii) a Subsidiary of a Person of which a Bank is a Subsidiary,
or (iii) a Person of which a Bank is a Subsidiary.
"Environmental Laws" means all applicable federal, state or
local statutes, laws, ordinances, codes, rules, regulations and
guidelines (including consent decrees and administrative orders)
relating to public health and safety and protection of the
environment.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import,
together with the regulations thereunder, in each case as in effect
from time to time. References to sections of ERISA also refer to
any successor sections.
"Eurodollar Reserve Percentage" has the meaning specified in
the definition of "Offshore Rate".
7
"Event of Default" means any of the events described in
Section 7.1.
"Existing Credit Agreements" means the Credit Agreement dated
as of August 22, 1994, as amended, among the Borrowers, various
financial institutions and Bank of America Illinois (formerly
Continental Bank), as Agent.
"Federal Funds Rate" means, for any day, the rate set forth
in the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York (including any such successor, "H.15(519)") on the preceding
Business Day opposite the caption "Federal Funds (Effective)"; or,
if for any relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Agent of the rates for the
last transaction in overnight Federal funds arranged prior to 9:00
a.m. (New York City time) on that day by each of three leading
brokers of Federal funds transactions in New York City selected by the
Agent.
"Fee Letter" has the meaning specified in Section 2.13(a).
"Fiscal Quarter" means any fiscal quarter of a Fiscal Year.
"Fiscal Year" means the fiscal year of the Company and its
Subsidiaries, which period shall be the 12-month period ending on
August 31 of each year.
"Fixed Charge Coverage Ratio" means, for any Computation
Period, the ratio of
(a) the sum of
(i) Consolidated Net Income for such period,
plus
(ii) the aggregate amount deducted in respect of
federal, state, local and foreign income
taxes in determining such Consolidated Net
Income,
plus
(iii) Consolidated Interest Expense for such period,
8
plus
(iv) the aggregate amount deducted in respect
of leases that were not Capital Leases
in determining such Consolidated Net
Income,
to
(b) the sum of
(i) Consolidated Interest Expense for such period,
plus
(ii) the aggregate amount deducted in respect
of leases that were not Capital Leases
in determining such Consolidated Net Income.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"French Francs" means lawful money of the Republic of France.
"FX Trading Office" means the Foreign Exchange Trading
Center #5193, San Francisco, California, of BofA, or such other of
BofA's offices as BofA may designate from time to time.
"Funded Debt" of any Person at any date of determination
means the sum of all Debt described in clauses (a) and (b) of the
definition of "Debt".
"Further Taxes" means any and all present or future
taxes, levies, assessments, imposts, duties, deductions, fees,
withholdings or similar charges (including, without limitation, net
income taxes and franchise taxes), and all liabilities with respect
thereto, imposed by any jurisdiction on account of Taxes or Other
Taxes payable or paid pursuant to Section 3.1.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board (or agencies with similar
functions of comparable stature and authority within the U.S.
accounting profession), which except as provided in Section 1.3 are
9
applicable to the circumstances as of the date of determination.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guilders" means lawful money of the Netherlands.
"Hazardous Material" means
(a) any "hazardous substance", as defined by
CERCLA;
(b) any "hazardous waste", as defined by the
Resource Conservation and Recovery Act;
(c) any crude oil, petroleum product or
fraction thereof (excluding gasoline and oil in motor vehicles,
small amounts of cleaners and similar items used in the ordinary
course of business); or
(d) any pollutant or contaminant or hazardous,
dangerous or toxic chemical, material or substance within
the meaning of any Environmental Law.
"Impermissible Change in Control" means at any time,
(a) the failure of the Company to own, free and
clear of all Liens or other encumbrances, 99% of the issued
and outstanding shares of capital stock of APSA; or
(b) any Person or group of Persons acting in
concert (other than the "core shareholders" of the
Company identified in Item 1 on the Disclosure Schedule)
which are unacceptable to the Required Banks obtained
control of more than 50% of the issued and outstanding shares
of capital stock of the Company having the power to elect a
majority of directors of the Company.
"Indemnified Liabilities" has the meaning specified in Section
10.5.
10
"Indemnified Person" has the meaning specified in Section 10.5.
"Instrument" means any contract, agreement, letter of
credit, indenture, mortgage, document or writing (whether by formal
agreement, letter or otherwise) under which any obligation is
evidenced, assumed or undertaken, or any Lien (or right or
interest therein) is granted or perfected.
"Interest Payment Date" means, as to any Loan other than a
Base Rate Loan, the last day of each Interest Period applicable to
such Loan and, as to any Base Rate Loan, the last Business Day of
each February, May, August and November and each date such Committed
Loan is converted into another Type of Committed Loan, provided,
however, that (a) if any Interest Period for an Offshore Rate Loan
exceeds three months, the date that falls three months after the
beginning of such Interest Period and after each Interest Payment
Date thereafter is also an Interest Payment Date, and (b) as to any
Bid Loan, such intervening dates prior to the maturity thereof as may
be specified by the Company and agreed to by the applicable Bid Loan
Bank in the applicable Competitive Bid shall also be Interest Payment
Dates.
"Interest Period" means, (a) as to any Offshore Rate Loan,
the period commencing on the Borrowing Date of such Loan, or (in the
case of any Offshore Rate Loan in Dollars) on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one,
two, three or, if available for the requested Applicable Currency,
six months thereafter as selected by the Borrower in its Notice of
Borrowing, Notice of Conversion/Continuation or Competitive Bid
Request, as the case may be and (b) as to any Absolute Rate Bid
Loan, a period of not less than 7 days and not more than 183 days as
selected by the Company in the applicable Competitive Bid Request;
provided that:
(i) if any Interest Period would otherwise end
on a day that is not a Business Day, that Interest Period
shall be extended to the following Business Day unless, in
the case of an Offshore Rate Loan, the result of such
extension would be to carry such Interest Period into
another calendar month, in which event such Interest
Period shall end on the preceding Business Day;
(ii) any Interest Period pertaining to an Offshore
Rate Loan that begins on the last Business Day
11
of a calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business
Day of the calendar month at the end of such Interest Period;
and
(iii) no Interest Period for any Loan shall extend
beyond the Termination Date.
"Investment" means, with respect to any Person:
(a) any loan or advance made by such Person to any
other Person; and
(b) any capital contribution made by such Person
to, or ownership or similar interest held by such Person
in, any other Person.
The amount of any Investment shall be the original principal
or capital amount thereof less all returns of principal or equity
thereon (and without adjustment by reason of the financial
condition of such other Person) and shall, if made by the transfer
or exchange of property other than cash, be deemed to have been made
in an original principal or capital amount equal to the fair market
value of such property.
"Invitation for Competitive Bids" means a solicitation for
Competitive Bids, substantially in the form of Exhibit H.
"Italian Lira" means the lawful currency of the Republic of
Italy.
"Lending Office" means, as to any Bank, the office or
offices of such Bank specified as its "Lending Office" or "Domestic
Lending Office" or "Offshore Lending Office", as the case may be, on
Schedule 10.2, or such other office or offices as such Bank may from
time to time notify the Company and the Agent.
"Lien" means, when used with respect to any Person, any
interest of any other Person in any real or personal property, asset
or other right owned or being purchased or acquired by such Person
which secures payment or performance of any obligation and shall
include any mortgage, lien, encumbrance, charge or other security
interest of any kind, whether arising by contract, as a matter of
law, by judicial process or otherwise.
12
"Loan" means an extension of credit by a Bank or to the
Company under Article II, and may be a Committed Loan or a Bid Loan.
"Loan Documents" means this Agreement, any Notes, the Fee
Letter and all other documents delivered to the Agent or any Bank in
connection herewith.
"Margin Stock" means any "margin stock" as defined in
Regulation U of the Board of Governors of the Federal Reserve System.
"Material Adverse Effect" means a material adverse effect
on (a) the financial condition, operations, business, assets or
prospects of the Company and its Subsidiaries taken as a whole or
(b) the ability of the Company or APSA to timely and fully perform
any of its payment or other material obligations under this Agreement
or any Note.
"Minimum Tranche" means, in respect of Committed Loans
comprising part of the same Borrowing, or to be converted or
continued under Section 2.4, (a) in the case of Base Rate Loans,
$4,000,000 or any multiple of $1,000,000 in excess thereof, and (b)
in the case of Offshore Rate Loans, the Dollar Equivalent amount of
$4,000,000 or any multiple of 1,000,000 units of the Applicable
Currency in excess thereof.
"Notes" means, collectively, the Bid Notes and the Committed
Notes; and Note means any individual Bid Note or Committed Note.
"Notice of Borrowing" means a notice in substantially the form
of Exhibit A.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit B.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document,
owing by the Company to any Bank, the Agent, or any Indemnified
Person, whether direct or indirect (including those acquired by
assignment), absolute or contingent, due or to become due, now
existing or hereafter arising.
"Offshore Currency" means Guilders, Sterling, Deutsche
Marks, Yen, French Francs, Italian Lira, and Swiss Francs and, with
respect to the Company only, Canadian Dollars.
13
"Offshore Currency Loan" means any Offshore Rate Loan
denominated in an Offshore Currency.
"Offshore Rate" means, for any Interest Period, with respect
to Offshore Rate Loans comprising part of the same Borrowing, the
rate of interest per annum (rounded upward to the next 1/16th of 1%)
determined by the Agent as follows:
Offshore Rate = IBOR
------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any
Interest Period the maximum reserve percentage (expressed
as a decimal, rounded upward to the next 1/100th of 1%)
in effect on such day (whether or not applicable to any
Bank) under regulations issued from time to time by the FRB
for determining the maximum reserve requirement (including
any emergency, supplemental or other marginal reserve
requirement) with respect to Eurocurrency funding
(currently referred to as "Eurocurrency liabilities"); and
"IBOR" means the rate of interest per annum determined by
the Agent as the rate at which U.S. Dollar (or other
Applicable Currency as requested) deposits in the
approximate amount of BAI's Offshore Rate Loan for such
Interest Period would be offered by BofA's Grand Cayman
Branch, Grand Cayman B.W.I. (or such other office as may be
designated for such purpose by BofA), to major banks in the
offshore U.S. Dollar (or other Applicable Currency as
requested) interbank market at their request at
approximately 11:00 a.m. (New York City time) two Business
Days prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to all
Offshore Rate Loans then outstanding as of the effective date of any
change in the Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Committed Loan that bears
interest based on the Offshore Rate, and may be an Offshore Currency
Loan or a Loan denominated in Dollars.
"Organic Document" means, relative to each of the
Borrowers, its certificate of incorporation, its by-laws, any
other constituent documents and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its capital
stock.
14
"Other Taxes" means any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or
similar levies which arise from any payment made hereunder or from
the execution, delivery, performance, enforcement or registration
of, or otherwise with respect to, this Agreement or any other Loan
Documents.
"Overnight Rate" means, for any day, the rate of interest per
annum at which overnight deposits in the Applicable Currency, in an
amount approximately equal to the amount with respect to which such
rate is being determined, would be offered for such day by BofA's
London Branch to major banks in the London or other applicable
offshore interbank market.
"Participant" has the meaning specified in Section 10.8(d).
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means a "pension plan", as such term is defined
in section 3(2) of ERISA, which is subject to title IV of ERISA
(other than a multiemployer plan as defined in section 4001(a)(3)
of ERISA), and to which the Company or any corporation, trade or
business that is, along with the Company, a member of a Controlled
Group may have any liability, including any liability by reason of
having been a substantial employer within the meaning of section
4063 of ERISA at any time during the preceding five years, or by
reason of being deemed to be a contributing sponsor under section 4069
of ERISA.
"Permitted Receivables Securitization" means any receivables
purchase agreement entered into by the Company (as such agreement may
be amended, modified, or refinanced) provided all such agreements do
not result in the sale or securitization of receivables in excess of
$50,000,000.
"Person" means any natural person, corporation, partnership,
trust, incorporated or unincorporated association, joint venture,
joint stock company, government (or an agency or political
subdivision thereof) or other entity, whether acting in an
individual, fiduciary or other capacity.
"Pricing Grid" means the Pricing Grid set forth on Schedule
1.02.
15
"Pricing Level" means the Pricing Level on the Pricing Grid
which is applicable from time to time in accordance with Section
2.12.
"Pro Rata Share" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) at such time of such Bank's Commitment divided by the
combined Commitments of all Banks.
"Release" means a "release", as such term is defined in CERCLA.
"Required Banks" means Banks having an aggregate Pro Rata
Share of the Commitments of 55% or more; provided that after the
Commitments have been irrevocably terminated (through lapse of time,
pursuant to Section 7.2 or otherwise), " Required Banks" shall mean
one or more Banks having an aggregate of 55% or more of the sum of the
principal amount of all outstanding Loans.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a Governmental Authority, in each case applicable
to or binding upon the Person or any of its property or to which the
Person or any of its property is subject.
"Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C. Section 690, et seq., as in
effect from time to time.
"Same Day Funds" means (a) with respect to disbursements
and payments in Dollars, immediately available funds, and (b) with
respect to disbursements and payments in an Offshore Currency,
same day or other funds as may be determined by the Agent to be
customary in the place of disbursement or payment for the settlement
of international banking transactions in the relevant Offshore
Currency.
"SEC" means the Securities and Exchange Commission.
"Shareholders' Equity" means, at any date of determination,
all amounts which would be included under shareholders' equity on a
consolidated balance sheet of the Company and its Subsidiaries or APSA
and its Subsidiaries, as the case may be.
"Spot Rate" for a currency means the rate quoted by BofA as
the spot rate for the purchase by BofA of such currency with
another currency through its FX Trading Office at approximately 8:00
a.m. (San Francisco time) on the date
16
two Banking Days prior to the date as of which the foreign exchange
computation is made.
"Sterling" means lawful money of the United Kingdom.
"Subsidiary" means, with respect to any Person, any
corporation of which such Person and/or its other Subsidiaries
own, directly or indirectly, such number of outstanding shares as
have more than 50% of the ordinary voting power for the election
of directors. Unless the context otherwise requires, each reference
to Subsidiaries herein shall be a reference to Subsidiaries of the
Company.
"Suretyship Liability" means any agreement, undertaking or
other contractual arrangement by which any Person guarantees,
endorses or otherwise becomes or is contingently liable upon (by
direct or indirect agreement, contingent or otherwise, to provide
funds for payment, to supply funds to or otherwise to invest in
a debtor, or otherwise to assure a creditor against loss) any
indebtedness, obligation or other liability (including accounts
payable) of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment
of dividends or other distributions upon the shares of any other
Person. The amount of any Person's obligation under any Suretyship
Liability shall (subject to any limitation set forth therein) be
deemed to be the principal amount of the indebtedness, obligation or
other liability guaranteed thereby.
"Swap Contract" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis
swap, forward rate transaction, commodity swap, commodity option,
equity or equity index swap or option, bond, note or bill option,
interest rate option, forward foreign exchange transaction, cap,
collar or floor transaction, currency swap, cross-currency rate swap,
swaption, currency option or any other, similar transaction
(including any option to enter into any of the foregoing) or any
combination of the foregoing, and, unless the context otherwise
clearly requires, any master agreement relating to or governing
any or all of the foregoing.
"Swiss Francs" means lawful money of Switzerland.
"Tangible Net Assets" means, as of any date, the
consolidated total assets of the Company and its Subsidiaries minus
all intangible assets of the Company and its Subsidiaries, as each
would be shown on a consolidated balance sheet of the Company and
its Subsidiaries prepared in accordance with GAAP as of that date.
17
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or
similar charges, and all liabilities with respect thereto,
excluding, in the case of each Bank and the Agent, respectively,
taxes imposed on or measured by its net income by the jurisdiction
(or any political subdivision thereof) under the laws of which such
Bank or the Agent, as the case may be, is organized or maintains a
lending office.
"Termination Date" means the earlier to occur of (a) August
22, 2000, or (b) the date on which the Commitments terminate
pursuant to Section 7.2 or are reduced to zero pursuant to Section
2.8.
"Total Capital" at any date of determination means the sum of
(a) Funded Debt,
plus
(b) all federal, state, local and foreign income
taxes carried as deferred income taxes in accordance with
GAAP on the consolidated balance sheet of the Company and its
Subsidiaries,
plus
(c) Shareholders' Equity of the Company and its
Subsidiaries.
"United States" or "U.S." means the United States of
America, its 50 States, the District of Columbia and the Commonwealth
of Puerto Rico.
"Welfare Plan" means a "welfare plan", as such term is defined
in section 3(1) of ERISA.
"Yen" means lawful money of Japan.
1.2 Other Interpretive Provisions. (a) The meanings of defined
terms are equally applicable to the singular and plural forms of the defined
terms.
(b) The words "hereof", "herein", "hereunder" and
similar words refer to this Agreement as a whole and not to any
particular provision of this Agreement; and Section, Schedule and Exhibit
references are to this Agreement unless otherwise specified.
18
(c) (i) The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices
and other writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(iii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from
and including"; the words "to" and "until" each mean "to but
excluding", and the word "through" means "to and including."
(d) Unless otherwise expressly provided herein, (i)
references to agreements (including this Agreement) and other contractual
instruments shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document, and (ii)
references to any statute or regulation are to be construed as including all
statutory and regulatory provisions consolidating, amending, replacing,
supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(f) This Agreement and other Loan Documents may use several
different limitations, tests or measurements to regulate the same or similar
matters. All such limitations, tests and measurements are cumulative and
shall each be performed in accordance with their terms. Unless otherwise
expressly provided, any reference to any action of the Agent or the Banks
by way of consent, approval or waiver shall be deemed modified by the phrase
"in its/their sole discretion."
(g) This Agreement and the other Loan Documents are the
result of negotiations among and have been reviewed by counsel to the Agent,
the Borrowers and the other parties, and are the products of all parties.
Accordingly, they shall not be construed against the Banks or the Agent
merely because of the Agent's or Banks' involvement in their preparation.
1.3 Accounting Principles. References to financial statements
include notes thereto in accordance with GAAP; and accounting terms used but
not defined herein shall be construed in accordance with GAAP, and whenever
the character or amount of any asset or liability or item of income or
expense is required to be determined, or any consolidation or other
accounting computation is required to be made, for purposes hereof, such
19
determination or computation shall be made in accordance with GAAP;
provided that such determinations and computations with respect to
financial covenants and ratios hereunder shall be made in accordance with GAAP
as in effect on the date hereof.
1.4 Currency Equivalents Generally. For all purposes of this
Agreement (but not for purposes of the preparation of any financial
statements delivered pursuant hereto), the equivalent in any Offshore Currency
or other currency of an amount in Dollars, and the equivalent in Dollars of an
amount in any Offshore Currency or other currency, shall be determined at the
Spot Rate.
ARTICLE II
THE CREDITS
2.1 Amounts and Terms of Commitments. Each Bank severally agrees,
on the terms and conditions set forth herein, to make loans to the Borrowers
(each such loan, a "Committed Loan") from time to time on any Business Day
during the period from the Closing Date to the Termination Date, in an
aggregate principal Dollar Equivalent amount not to exceed at any time
outstanding the amount set forth opposite the Bank's name in Schedule 2.1
under the heading "Commitment" (such amount as the same may be reduced
pursuant to Section 2.8 or as a result of one or more assignments pursuant
to Section 10.8, the Bank's "Commitment"); provided, however, that, after
giving effect to any Borrowing of Committed Loans, the aggregate principal
Dollar Equivalent amount of all outstanding Loans shall not exceed the
combined Commitments; provided, further, that in no event shall the
aggregate principal Dollar Equivalent of all outstanding Committed Loans
of APSA exceed the lesser of (x) $40,000,000 and (y) the combined
Commitments. Within the limits of each Bank's Commitment, and subject to
the other terms and conditions hereof, the Borrowers may borrow under this
Section 2.1, prepay pursuant to Section 2.9 and reborrow pursuant to this
Section 2.1.
2.2 Loan Accounts.
The Committed Loans made by each Bank shall be evidenced by
a Committed Note from each Borrower payable to the order of such Bank. The
Bid Loans made by each Bank shall be evidenced by a Bid Note from the Company
payable to the order of such Bank. Each Bank shall record in its records, or
at its option on the Schedule attached to its Committed Note or Bid Note, as
the case may be, all such Committed Loans or Bid Loans, as the case may be,
and any repayment in whole or part thereof. The loan accounts or records or
schedules, as the case may be, maintained by the Agent and each Bank shall be
rebuttable presumptive evidence of the amount of the Loans made by the Banks
20
to each Borrower and the interest and payments thereon. Any failure so to
record or any error in doing so shall not, however, limit or otherwise
affect the obligation of the Borrowers hereunder to pay any amount owing with
respect to the Loans.
2.3 Procedure for Committed Borrowing.
(a) Each Committed Borrowing shall be made upon a
Borrower's irrevocable written notice delivered to the Agent in the form of a
Notice of Borrowing (which notice must be received by the Agent prior to 8:00
a.m. (San Francisco time) (i) two Business Days prior to the requested
Borrowing Date, in the case of Offshore Rate Loans denominated in Dollars;
and (ii) three Business Days prior to the requested Borrowing Date, in the
case of Offshore Currency Loans and (iii) on the requested Borrowing Date, in
the case of Base Rate Loans, specifying:
(A) the amount of the Committed Borrowing,
which shall be in an aggregate amount not less than the
Minimum Tranche;
(B) the requested Borrowing Date, which
shall be a Business Day;
(C) the Type of Loans comprising the
Committed Borrowing;
(D) the duration of the Interest Period
applicable to such Committed Loans included in such notice.
If the Notice of Borrowing fails to specify the duration of
the Interest Period for any Committed Borrowing comprised of
Offshore Rate Loans, such Interest Period shall be one month;
and
(E) in the case of a Borrowing comprised of
Offshore Currency Loans, the Applicable Currency;
provided, however, that with respect to the Borrowing to be made on the
Closing Date, the Notice of Borrowing for Offshore Rate Loans and an
appropriate indemnification letter shall be delivered to the Agent not later
than 8:00 a.m. (San Francisco time) three Business Days before the Closing
Date.
(b) The Dollar Equivalent amount of any Borrowing in
an Offshore Currency will be determined by the Agent for such Borrowing
on the Determination Date therefor in accordance with Section 2.5(a). Upon
receipt of the Notice of Borrowing, the Agent will promptly notify each
Bank thereof and of the amount of such Bank's Pro Rata Share of the
Borrowing. In the case of a Borrowing comprised of Offshore Currency Loans,
such notice will provide the approximate amount of each Bank's Pro Rata Share
of
21
the Borrowing, and the Agent will, upon the determination of Dollar Equivalent
amount of the Borrowing as specified in the Notice of Borrowing, promptly
notify each Bank of the exact amount of such Bank's Pro Rata Share of the
Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share
of each Borrowing available to the Agent for the account of the Company at
the Agent's Payment Office on the Borrowing Date requested by the Borrower
in Same Day Funds and in the requested currency (i) in the case of a
Borrowing comprised of Loans in Dollars, by 11:00 a.m. (San Francisco
time), (ii) in the case of a Borrowing comprised of Offshore Currency
Loans, by such time as the Agent may determine to be necessary for such funds
to be credited on such date in accordance with normal banking practices in the
place of payment. The proceeds of all such Loans will then be made available
to the Borrower by the Agent by wire transfer in accordance with written
instructions provided to the Agent by the Borrower of like funds as received
by the Agent; provided that the Agent shall disburse such funds as it has
received from the Banks to the Borrower (x) in the case of Loans denominated
in Dollars, no later then 1:00 p.m. (San Francisco time) and (y) in the case
of Offshore Currency Loans, no later than two hours after the funding
deadline specified by the Agent under clause (ii) above.
(d) After giving effect to any Committed Borrowing,
there may not be more than eight different Interest Periods
in effect in respect of all Committed Loans and Bid Loans
together then outstanding.
2.4 Conversion and Continuation Elections for Committed Borrowings.
(a) The Borrowers may, upon irrevocable written notice to
the Agent in accordance with Section 2.4(b):
(i) elect, as of any Business Day, in the case of
Base Rate Loans, or as of the last day of the applicable Interest
Period, in the case of any other Type of Committed Loans
denominated in Dollars, to convert any such Committed Loans (or any
part thereof in an amount not less than the Minimum Tranche) into
Committed Loans in Dollars of any other Type; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Committed Loans having Interest
Periods expiring on such day (or any part thereof in an amount not
less than the Minimum Tranche);
provided, that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Committed Borrowing is reduced, by
22
payment, prepayment, or conversion of part thereof to be less than
$4,000,000, such Offshore Rate Loans shall automatically convert into Base
Rate Loans, and on and after such date the right of the Borrowers to continue
such Committed Loans as, and convert such Committed Loans into, Offshore Rate
Loans shall terminate.
(b) The Borrowers shall deliver a Notice of
Conversion/Continuation to be received by the Agent not later than 8:00 a.m.
(San Francisco time) at least (i) two Business Days in advance of the
Conversion/Continuation Date, if the Committed Loans are to be converted into
or continued as Offshore Rate Loans denominated in Dollars; (ii) three
Business Days in advance of the Conversion/Continuation Date, if the
Committed Loans are to be converted into or continued as Offshore Currency
Loans; and (iii) on the Conversion/Continuation Date, if the Loans
denominated in Dollars are to be converted into Base Rate Loans, specifying:
(A) the proposed Conversion/Continuation
Date;
(B) the aggregate amount of Committed
Loans to be converted or continued;
(C) the Type of Committed Loans
resulting from the proposed conversion or continuation;
(D) other than in the case of
conversions into Base Rate Loans, the duration of the
requested Interest Period; and
(E) if applicable, the Applicable
Currency.
(c) If upon the expiration of any Interest Period
applicable to Offshore Rate Loans in Dollars, the Borrowers have failed to
select timely a new Interest Period to be applicable to such Offshore Rate
Loans, as the case may be, or if any Default or Event of Default then exists,
the Borrowers shall be deemed to have elected to convert such Offshore Rate
Loans into Base Rate Loans denominated in Dollars effective as of the
expiration date of such Interest Period. If the Borrowers have failed to
select a new Interest Period to be applicable to Offshore Currency Loans prior
to the third Business Day in advance of the expiration date of the current
Interest Period applicable thereto as provided in Section 2.4(b), or if any
Default or Event of Default shall then exist, subject to the provisions of
Section 2.5(d), the Borrowers shall be deemed to have elected to pay such
Offshore Currency Loans and borrow Base Rate Loans denominated in Dollars.
23
(d) The Agent will promptly notify each Bank of its
receipt of a Notice of Conversion/Continuation, or, if no timely notice is
provided by the Company, the Agent will promptly notify each Bank of the
details of any automatic conversion. All conversions and continuations
shall be made ratably according to the respective outstanding principal
amounts of the Committed Loans with respect to which the notice was given held
by each Bank.
(e) Unless the Required Banks otherwise agree, during
the existence of a Default or Event of Default, the Borrowers may not elect
to have a Committed Loan in Dollars converted into or continued as an Offshore
Rate Loan or an Offshore Currency Loan.
(f) After giving effect to any conversion or
continuation of Committed Loans, there may not be more than eight different
Interest Periods in effect in respect of all Committed Loans and Bid Loans
together then outstanding.
2.5 Utilization of Revolving Commitments in Offshore Currencies.
(a) The Agent will determine the Dollar Equivalent amount
with respect to any (i) Borrowing comprised of Offshore Currency Loans as of
the requested Borrowing Date and as of any requested continuation date, (ii)
outstanding Offshore Currency Loans as of the last Banking Day of each
month, and, during the occurrence and continuation of an Event of Default,
such other dates as may be requested by the Required Banks (but in no event
more frequently than once a week) (each such date under clauses (i) and (ii) a
"Determination Date").
(b) In the case of a proposed Borrowing comprised of
Offshore Currency Loans, the Banks shall be under no obligation to make
Offshore Currency Loans in the requested Offshore Currency as part of such
Borrowing if the Agent has received notice from the Required Banks by 12:30
p.m. (San Francisco time) three Business Days prior to the day of such
Borrowing that deposits in the relevant Offshore Currency (in the applicable
amounts) are not being offered to such Banks in the interbank eurocurrency
market for such Interest Period in which event the Agent will give notice to
the Borrower no later than 1:30 p.m. (San Francisco time) on the third
Business Day prior to the requested date of such Borrowing that the Borrowing
in the requested Offshore Currency is not then available, and notice thereof
also will be given promptly by the Agent to the Banks. If the Agent shall
have so notified the Borrower that any such Borrowing in a requested Offshore
Currency is not then available, the Notice of Borrowing relating to such
requested Borrowing
24
shall be deemed to be withdrawn, the Borrowing requested therein shall not
occur and the Agent will promptly so notify each Bank.
(c) In the case of a proposed continuation of Offshore
Currency Loans for an additional Interest Period pursuant to Section 2.4, the
Banks shall be under no obligation to continue such Offshore Currency Loans if
the Agent has received notice from the Required Banks by 12:30 p.m. (San
Francisco time) three Business Days prior to the day of such continuation that
deposits in the relevant Offshore Currency (in the applicable amounts) are
not being offered to such Banks in the interbank eurocurrency market for such
Interest Period in which event the Agent will give notice to the Borrower not
later than 1:30 p.m. (San Francisco time) on the third Business Day prior to
the requested date of such continuation that the continuation of such
Offshore Currency Loans in the relevant Offshore Currency is not then
available, and notice thereof also will be given promptly by the Agent to the
Banks. If the Agent shall have so notified the Borrower that any such
continuation of Offshore Currency Loans is not then available, any Notice of
Continuation with respect thereto shall be deemed withdrawn and such
Offshore Currency Loans shall be repaid on the last day of the Interest Period
with respect to any such Offshore Currency Loans.
(d) Notwithstanding anything herein to the contrary,
during the existence of a Default or an Event of Default, unless the Required
Banks otherwise agree, all outstanding Offshore Currency Loans shall be
redenominated and converted into Base Rate Loans in Dollars on the last day of
the Interest Period applicable to any such Offshore Currency Loans.
(e) The Borrowers shall be entitled to request that
Committed Loans hereunder also be permitted to be made in any other lawful
currency constituting a eurocurrency (other than Dollars), in addition to the
eurocurrencies specified in the definition of "Offshore Currency" herein,
that in the opinion of the Agent and the Banks is at such time freely
traded in the offshore interbank foreign exchange markets and is freely
transferable and freely convertible into Dollars (an "Agreed Alternative
Currency"). The Borrower shall deliver to the Agent any request for
designation of an Agreed Alternative Currency in accordance with Section 10.2,
to be received by the Agent not later than 10:00 a.m. (San Francisco time) at
least ten Business Days in advance of the date of any Borrowing hereunder
proposed to be made in such Agreed Alternative Currency. Upon receipt of any
such request the Agent will promptly notify the Banks thereof, and each Bank
will respond to such request within two Business Days of receipt thereof.
Each Bank may grant or accept such request in its sole discretion. The
Agent will promptly notify the Borrowers of the acceptance or rejection of any
such
25
request and, if accepted, the time requirements for requesting Borrowings in
such Agreed Alternative Currency.
2.6 Bid Borrowings. In addition to Committed Borrowings pursuant to
Section 2.3, each Bank severally agrees that the Company may, as set forth in
Section 2.7, from time to time request the Banks prior to the Termination
Date to submit offers to make Bid Loans in Dollars to the Company; provided,
however, that the Banks may, but shall have no obligation to, submit such
offers and the Company may, but shall have no obligation to, accept any such
offers and, if such offers are accepted by the Company, to make such Bid
Loans; and provided, further, that at no time shall (a) the outstanding
aggregate principal amount of all Bid Loans made by all Banks, plus the
outstanding aggregate principal amount of all Committed Loans made by all
Banks exceed the combined Commitments; or (b) the number of Interest Periods
for Bid Loans then outstanding plus the number of Interest Periods for
Committed Loans then outstanding exceed eight. APSA shall not be entitled to
request Bid Loans and the Company shall only be entitled to request Bid Loans
in Dollars.
2.7 Procedure for Bid Borrowings.
(a) When the Company wishes to request the Banks to submit
offers to make Bid Loans hereunder, it shall transmit to the Agent by
telephone call followed promptly by facsimile transmission a notice in
substantially the form of Exhibit I (a "Competitive Bid Request") so as to be
received no later than 8:00 a.m. (San Francisco time) one Business Day prior to
the date of a proposed Bid Borrowing, specifying:
(i) the date of such Bid Borrowing, which shall be a
Business Day;
(ii) the aggregate amount of such Bid Borrowing,
which shall be a minimum amount of $5,000,000 or in multiples of
$1,000,000 in excess thereof; and
(iii) the duration of the Interest Period
applicable thereto, subject to the provisions of the definition of
"Interest Period" herein.
Subject to Section 2.7(c), the Company may not request Competitive Bids for
more than three Interest Periods in a single Competitive Bid Request and
may not request Competitive Bids more than once in any period of five Business
Days.
(b) Upon receipt of a Competitive Bid Request, the Agent
will promptly send to the Banks by facsimile transmission an Invitation for
Competitive Bids, which shall constitute an
26
invitation by the Company to each Bank to submit Competitive Bids offering to
make the Bid Loans to which such Competitive Bid Request relates in accordance
with this Section 2.7.
(c) (i) Each Bank may at its discretion submit a
Competitive Bid containing an offer or offers to make Bid Loans in
response to any Invitation for Competitive Bids. Each Competitive
Bid must comply with the requirements of this Section 2.7(c) and
must be submitted to the Agent by facsimile transmission at the
Agent's office for notices set forth on the signature pages hereto
not later than 6:30 a.m. (San Francisco time) on the proposed
date of Borrowing; provided that Competitive Bids submitted by BAI
(or any Affiliate of BAI) in the capacity of a Bank may be
submitted, and may only be submitted, if BAI or such Affiliate
notifies the Agent of the terms of the offer or offers contained
therein not later than 6:15 a.m. (San Francisco time) on the proposed
date of Borrowing.
(ii) Each Competitive Bid shall be in substantially
the form of Exhibit J, specifying therein:
(A) the proposed date of Borrowing;
(B) the principal amount of each Bid
Loan for which such Competitive Bid is being made, which
principal amount (x) may be equal to, greater than or less
than the Commitment of the quoting Bank, (y) must be
$5,000,000 or in multiples of $1,000,000 in excess thereof,
and (z) may not exceed the principal amount of Bid Loans for
which Competitive Bids were requested;
(C) the rate of interest per annum
expressed in multiples of 1/1000th of one basis point
(the "Absolute Rate") offered for each such Bid Loan; and
(D) the identity of the quoting Bank.
A Competitive Bid may contain up to three separate offers by the
quoting Bank with respect to each Interest Period specified in the
related Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
27
(A) is not substantially in conformity
with Exhibit H or does not specify all of the information
required by Section 2.7(c)(ii);
(B) contains qualifying, conditional or
similar language;
(C) proposes terms other than or in
addition to those set forth in the applicable Invitation
for Competitive Bids; or
(D) arrives after the time set forth in
Section 2.7(c)(i).
(d) Promptly on receipt and not later than 7:00 a.m. (San
Francisco time) on the proposed date of Borrowing of an Absolute Rate Bid
Loan, the Agent will notify the Company of the terms (i) of any Competitive
Bid submitted by a Bank that is in accordance with Section 2.7(c), and (ii) of
any Competitive Bid that amends, modifies or is otherwise inconsistent with a
previous Competitive Bid submitted by such Bank with respect to the same
Competitive Bid Request. Any such subsequent Competitive Bid shall be
disregarded by the Agent unless such subsequent Competitive Bid is submitted
solely to correct a manifest error in such former Competitive Bid and only if
received within the times set forth in Section 2.7(c). The Agent's notice to
the Company shall specify (1) the aggregate principal amount of Bid Loans for
which offers have been received for each Interest Period specified in the
related Competitive Bid Request; and (2) the respective principal amounts
and Absolute Rates so offered. Subject only to the provisions of Sections
3.2, 3.5 and 4.2 hereof and the provisions of this Section 2.7(d), any
Competitive Bid shall be irrevocable except with the written consent of the
Agent given on the written instructions of the Company.
(e) Not later than 7:30 a.m. (San Francisco time) on the
proposed date of Borrowing, the Company shall notify the Agent of its
acceptance or non-acceptance of the offers so notified to it pursuant to
Section 2.7(d). The Company shall be under no obligation to accept any
offer and may choose to reject all offers. In the case of acceptance, such
notice shall specify the aggregate principal amount of offers for each
Interest Period that is accepted. The Company may accept any Competitive Bid
in whole or in part; provided that:
(i) the aggregate principal amount of each Bid
Borrowing may not exceed the applicable amount set forth in the
related Competitive Bid Request;
28
(ii) the principal amount of each Bid Borrowing
must be $5,000,000 or in any multiple of $1,000,000 in excess
thereof;
(iii) acceptance of offers may only be made on
the basis of ascending Absolute Rates within each Interest Period;
and
(iv) the Company may not accept any offer that is
described in Section 2.7(c)(iii) or that otherwise fails to comply
with the requirements of this Agreement.
(f) If offers are made by two or more Banks with the same
Absolute Rates for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Bid Loans in respect of which such offers are accepted
shall be allocated by the Agent among such Banks as nearly as possible (in
such multiples, not less than $1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. Determination
by the Agent of the amounts of Bid Loans shall be conclusive in the absence of
manifest error.
(g) (i) The Agent will promptly notify each Bank having
submitted a Competitive Bid if its offer has been accepted and, if
its offer has been accepted, of the amount of the Bid Loan or Bid
Loans to be made by it on the date of the Bid Borrowing.
(ii) Each Bank, which has received notice pursuant
to Section 2.7(g)(i) that its Competitive Bid has been accepted,
shall make the amounts of such Bid Loans available to the Agent
for the account of the Company at the Agent's Payment Office, by
11:00 a.m. (San Francisco time) on such date of Bid Borrowing, in
funds immediately available to the Agent for the account of the
Company at the Agent's Payment Office.
(iii) Promptly following each Bid Borrowing,
the Agent shall notify each Bank of the ranges of bids submitted
and the highest and lowest Bids accepted for each Interest Period
requested by the Company and the aggregate amount borrowed pursuant to
such Bid Borrowing.
(h) If, on or prior to the proposed date of Borrowing, the
Commitments have not been terminated and if, on such proposed date of Borrowing
all applicable conditions to funding referenced in Sections 3.2, 3.5 and 4.2
hereof are satisfied, the Banks whose offers the Company has accepted will
fund each Bid Loan so
29
accepted. Nothing in this Section 2.7 shall be construed as a right of first
offer in favor of the Banks or to otherwise limit the ability of the Company
to request and accept credit facilities from any Person (including any of the
Banks), provided that no Default or Event of Default would otherwise arise or
exist as a result of the Company executing, delivering or performing under such
credit facilities.
2.8 Voluntary Termination or Reduction of Commitments. The Company
may, upon not less than five Business Days' prior notice to the Agent,
terminate the Commitments, or permanently reduce the Commitments by an
aggregate minimum Dollar Equivalent amount of $5,000,000 or any Dollar
Equivalent multiple of $1,000,000 in excess thereof; unless, after giving
effect thereto and to any prepayments of Loans made on the effective date
thereof, the then-outstanding principal Dollar Equivalent amount of the
Loans would exceed the amount of the combined Commitments then in effect.
Once reduced in accordance with this Section, the Commitments may not be
increased. Any reduction of the Commitments shall be applied to each Bank
according to its Pro Rata Share.
2.9 Optional Prepayments.
(a) Subject to Section 3.4, the Borrowers may, at any time
or from time to time, by giving the Agent irrevocable notice not later than
(1) 8:30 a.m. (San Francisco time) on the date of the proposed prepayment, in
the case of Base Rate Loans and (ii) 8:30 a.m. (San Francisco time) two
Business Days prior to the proposed payment date, in the case of Offshore
Rate Loans, ratably prepay Committed Loans in whole or in part, in minimum
Dollar Equivalent amounts of $4,000,000 or any multiple of $1,000,000 in
excess thereof. Such notice of prepayment shall specify the date and amount
of such prepayment and the Type(s) of Committed Loans to be prepaid and the
Applicable Currency. The Agent will promptly notify each Bank of its receipt
of any such notice, and of such Bank's Pro Rata Share of such prepayment.
If such notice is given by a Borrower, such Borrower shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein, together with accrued interest to each
such date on the amount prepaid and any amounts required pursuant to Section
3.4.
(b) Bid Loans may not be voluntarily prepaid.
2.10 Currency Exchange Fluctuations. If on any Determination
Date the Agent shall have determined that the aggregate Dollar Equivalent
principal amount of all Loans then outstanding exceeds the combined
Commitments of the Banks by more than $500,000, due to a change in applicable
rates of exchange between Dollars and Offshore Currencies, then the Agent shall
30
give notice to the Borrowers that a prepayment is required under this Section,
and the Borrowers agree thereupon to make prepayments of Loans such that,
after giving effect to such prepayment the aggregate Dollar Equivalent amount
of all Loans does not exceed the combined Commitments. Prepayments of Loans
under this Section 2.10 shall be applied (and, to the extent necessary, made
in the Applicable Currency) to repay first, Base Rate Loans and second,
Offshore Rate Loans. Any prepayment of an Offshore Rate Loan shall be subject
to the provisions of Section 3.4.
2.11 Repayment.
(a) The Borrowers shall repay to the Banks on the
Termination Date the aggregate principal amount of all Committed Loans
outstanding on such date.
(b) The Company shall repay each Bid Loan on the last day
of the relevant Interest Period.
2.12 Interest.
(a) Each Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at a
rate per annum equal to the Offshore Rate plus the Applicable Margin or the
Base Rate, as the case may be (and subject to the Borrower's right to convert
to other Types of Loans under Section 2.4). Each Bid Loan shall bear
interest on the outstanding principal amount thereof from the relevant
Borrowing Date at a rate per annum equal to the Absolute Rate.
(b) Interest on each Loan shall be paid in arrears on
each Interest Payment Date. Interest shall also be paid on the date of any
prepayment of Committed Loans under Section 2.8, 2.9 or 2.10 for the
portion of the Loans so prepaid and upon payment (including prepayment) in
full thereof and, during the existence of any Event of Default, interest shall
be paid on demand of the Agent at the request or with the consent of the
Required Banks.
(c) Any change in the Applicable Margin or Applicable
Non-Use Fee Rate resulting from a change in the Pricing Level in accordance
with the Pricing Grid shall be effective 60 days (or, in the case of the
last Fiscal Quarter of any Fiscal Year, 90 days, respectively) after the
end of each Fiscal Quarter based on the Debt to Capital Ratio as of the
last day of such Fiscal Quarter; it being understood that if the Company
fails to deliver the financial statements required by Section 6.1(a) or
6.1(b) on the 60th day (or, if applicable, the 90th day) after any Fiscal
Quarter, commencing on such 60th or 90th day, as applicable, until the
date such financial statements are delivered, the Pricing Level in effect
shall be in Pricing Level VI.
31
(d) After maturity of any Loan (whether by acceleration or
otherwise), such Loan shall bear interest on the unpaid principal amount
thereof at a rate per annum equal to (i) for any Base Rate Loan the sum of
two percent (2%) plus the Base Rate from time to time in effect; and (ii)
for any Offshore Rate Loan, the sum of three percent (3%) plus the rate of
interest in effect thereon at the time of such default until the end of the
Interest Period applicable thereto and, thereafter, if such Loan is
denominated in Dollars, at a rate per annum equal to the sum of two percent
(2%) plus the Base Rate from time to time in effect or, if such Loan is
denominated in another Applicable Currency, at a rate per annum equal to the
sum of the Applicable Margin for Offshore Rate Loans plus three percent (3%)
plus the rate of interest per annum as determined by the Agent (rounded
upwards, if necessary to the nearest whole multiple of one-sixteenth of one
percent (1/16%) at which overnight or weekend deposits of the Applicable
Currency (or, if such amount due remains unpaid more than three Business Days,
then for such other period of time not longer than one month as the Agent
may elect in its absolute discretion) for delivery in immediately available
and freely transferrable funds would be offered by the Agent to major banks
in the interbank market upon request of such major banks for the applicable
period as determined above and in an amount comparable to the unpaid principal
amount of any such Offshore Rate Loan or, if the Agent is not placing
deposits in such Applicable Currency in the interbank market, then the
Agent's cost of funds in such Applicable Currency for such period).
2.13 Fees.
(a) Arrangement, Agency Fees. The Company shall pay an
arrangement fee to the Arranger for the Arranger's own account, and shall pay
an agency fee to the Agent for the Agent's own account, as required by the
letter agreement ("Fee Letter") between the Company, the Arranger and the
Agent dated July 18, 1995.
(b) Non-Use Fees. The Company shall pay to the Agent for
the account of each Bank a non-use fee on the average daily unused portion of
such Bank's Commitment, computed on a quarterly basis in arrears on the last
Business Day of each February, May, August and November commencing November 30,
1995 based upon the daily utilization for that quarter as calculated by the
Agent, equal to the Applicable Non-Use Fee Rate. Such non-use fee shall
accrue from the Closing Date to the Termination Date and shall be due and
payable quarterly in arrears on the last Business Day of each February, May,
August and November commencing on August 30, 1995 through the Termination Date,
with the final payment to be made on the Termination Date. For purposes of
calculating the non-use fee, Bid Loans shall not be deemed usage of the
Commitments. The non-use fees provided in this Section 2.13(b)
32
shall accrue at all times after the above-mentioned commencement date,
including at any time during which one or more conditions in Article IV are
not met.
2.14 Computation of Fees and Interest.
(a) All computations of fees and interest shall be
made on the basis of a 360-day year and actual days elapsed (which results
in more interest being paid than if computed on the basis of a 365-day year).
Interest and fees shall accrue during each period during which interest or
such fees are computed from the first day thereof to the last day thereof.
(b) For purposes of determining utilization of each Bank's
Commitment in order to calculate the non-use fee due under Section 2.13(b), the
amount of any outstanding Offshore Currency Loan on any date shall be
determined based upon the Dollar Equivalent amount as of the most recent
Determination Date with respect to such Offshore Currency Loan.
(c) Each determination of an interest rate or a Dollar
Equivalent amount by the Agent shall be conclusive and binding on the Company
and the Banks in the absence of manifest error.
2.15 Payments by the Borrower.
(a) All payments to be made by the Borrower shall be made
without set-off, recoupment or counterclaim. Except as otherwise expressly
provided herein, all payments by the Borrower shall be made to the Agent for
the account of the Banks at the Agent's Payment Office, and, with respect to
principal of, interest on, and any other amounts relating to, any Offshore
Currency Loan, shall be made in the Offshore Currency in which such Loan is
denominated or payable, and, with respect to all other amounts payable
hereunder, shall be made in Dollars. Such payments shall be made in Same
Day Funds, and (i) in the case of Offshore Currency payments, no later
than such time on the dates specified herein as may be determined by the
Agent to be necessary for such payment to be credited on such date in
accordance with normal banking procedures in the place of payment, and (ii)
in the case of any Dollar payments, no later than 11:00 a.m. (San Francisco
time) on the date specified herein. The Agent will promptly distribute to
each Bank its Pro Rata Share (or other applicable share as expressly
provided herein) of such principal, interest, fees or other amounts, in like
funds as received. Any payment which is received by the Agent later than
11:00 a.m. (San Francisco time), or later than the time specified by the
Agent as provided in clause (i) above (in the case of Offshore Currency
payments), shall be deemed to have been received on the following Business
Day and any applicable interest or fee shall continue to accrue.
33
(b) Subject to the provisions set forth in the
definition of "Interest Period" herein, whenever any payment is due on a day
other than a Business Day, such payment shall be made on the following
Business Day, and such extension of time shall in such case be included in
the computation of interest or fees, as the case may be.
(c) Unless the Agent receives notice from the Borrower
prior to the date on which any payment is due to the Banks that the Borrower
will not make such payment in full as and when required, the Agent may assume
that the Borrower has made such payment in full to the Agent on such date in
immediately available funds and the Agent may (but shall not be so
required), in reliance upon such assumption, distribute to each Bank on such
due date an amount equal to the amount then due such Bank. If and to the
extent the Borrower has not made such payment in full to the Agent, each Bank
shall repay to the Agent on demand such amount distributed to such Bank,
together with interest thereon at the Federal Funds Rate for each day from the
date such amount is distributed to such Bank until the date repaid.
2.16 Payments by the Banks to the Agent.
(a) Unless the Agent receives notice from a Bank on or
prior to the Closing Date or, with respect to any Borrowing after the Closing
Date, at least one Business Day prior to the date of such Committed
Borrowing, that such Bank will not make available as and when required
hereunder to the Agent for the account of the Borrower the amount of that
Bank's Pro Rata Share of the Committed Borrowing, the Agent may assume that
each Bank has made such amount available to the Agent in immediately
available funds on the Borrowing Date and the Agent may (but shall not be so
required), in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent any Bank shall not
have made its full amount available to the Agent in immediately available
funds and the Agent in such circumstances has made available to the
Borrower such amount, that Bank shall on the Business Day following such
Borrowing Date make such amount available to the Agent, together with
interest at the Federal Funds Rate for each day during such period. A
notice of the Agent submitted to any Bank with respect to amounts owing under
this Section 2.16(a) shall be conclusive, absent manifest error. If such
amount is so made available, such payment to the Agent shall constitute such
Bank's Loan on the date of Borrowing for all purposes of this Agreement. If
such amount is not made available to the Agent on the Business Day following
the Borrowing Date, the Agent will notify the Borrower of such failure to
fund and, upon demand by the Agent, the Borrower shall pay such amount to the
Agent for the Agent's account, together with interest thereon for each day
elapsed since the date of such Committed Borrowing, at a rate per annum
34
equal to the interest rate applicable at the time to the Committed Loans
comprising such Committed Borrowing.
(b) The failure of any Bank to make any Committed Loan
on any Borrowing Date shall not relieve any other Bank of any obligation
hereunder to make a Committed Loan on such Borrowing Date, but no Bank shall
be responsible for the failure of any other Bank to make the Committed Loan
to be made by such other Bank on any Borrowing Date.
2.17 Sharing of Payments, Etc. If, other than as expressly
provided elsewhere herein, any Bank shall obtain on account of the
Committed Loans made by it any payment (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) in excess of its
Pro Rata Share, such Bank shall immediately (a) notify the Agent of such fact,
and (b) purchase from the other Banks such participations in the Committed
Loans made by them as shall be necessary to cause such purchasing Bank to share
the excess payment pro rata with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from the
purchasing Bank, such purchase shall to that extent be rescinded and each
other Bank shall repay to the purchasing Bank the purchase price paid therefor,
together with an amount equal to such paying Bank's ratable share (according
to the proportion of (i) the amount of such paying Bank's required repayment
to (ii) the total amount so recovered from the purchasing Bank) of any
interest or other amount paid or payable by the purchasing Bank in respect of
the total amount so recovered. The Borrowers agree that any Bank so
purchasing a participation from another Bank may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off, but subject to Section 10.10) with respect to such participation as
fully as if such Bank were the direct creditor of such Borrower in the amount
of such participation. The Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Banks following
any such purchases or repayments.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1 Taxes.
(a) Any and all payments by the Borrowers to each Bank or
the Agent under this Agreement and any other Loan Document shall be made free
and clear of, and without deduction or withholding for, any Taxes. In
addition, the Borrowers shall pay all Other Taxes and Further Taxes.
35
(b) If the Company shall be required by law to deduct or
withhold any Taxes, Other Taxes or Further Taxes from or in respect of any sum
payable hereunder to any Bank or the Agent, then:
(i) the sum payable shall be increased as
necessary so that, after making all required deductions and
withholdings (including deductions and withholdings applicable to
additional sums payable under this Section) such Bank or the Agent,
as the case may be, receives and retains an amount equal to the sum
it would have received and retained had no such deductions or
withholdings been made;
(ii) the Borrowers shall make such deductions and
withholdings;
(iii) the Borrowers shall pay the full amount
deducted or withheld to the relevant taxing authority or other
authority in accordance with applicable law; and
(iv) the Borrowers shall also pay to each Bank or
the Agent for the account of such Bank, at the time interest is
paid, Further Taxes in an amount that the respective Bank specifies
as necessary to preserve the after-tax yield the Bank would have
received if such Taxes, Other Taxes or Further Taxes had not been
imposed.
(c) Each Borrower agrees to indemnify and hold harmless each
Bank and the Agent for the full amount of (i) Taxes, (ii) Other Taxes, and
(iii) Further Taxes in the amount that the respective Bank reasonably
specifies as necessary to preserve the after-tax yield the Bank would have
received if such Taxes, Other Taxes or Further Taxes had not been imposed,
and any liability (including penalties, interest, additions to tax and
expenses) arising therefrom or with respect thereto, whether or not such
Taxes, Other Taxes or Further Taxes were correctly or legally asserted.
Payment under this indemnification shall be made within 30 days after the
date the Bank or the Agent makes written demand therefor.
(d) Within 30 days after the date of any payment by the
Borrowers of Taxes, Other Taxes or Further Taxes, the Borrowers shall furnish
to each Bank or the Agent the original or a certified copy of a receipt
evidencing payment thereof, or other evidence of payment satisfactory to such
Bank or the Agent.
(e) If a Borrower is required to pay additional amounts to
any Bank or the Agent pursuant to Section 3.1(b) or (c) then such Bank shall
use reasonable efforts (consistent with legal and regulatory restrictions) to
change the jurisdiction of
36
its Lending Office so as to eliminate any such additional payment by the
Borrowers which may thereafter accrue, if such change in the sole judgment
of such Bank is not otherwise disadvantageous to such Bank.
3.2 Illegality.
(a) If any Bank determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any Bank or its applicable Lending Office
to make Offshore Rate Loans (including Offshore Rate Loans in any Applicable
Currency), then, on notice thereof by the Bank to the Borrowers through the
Agent, any obligation of that Bank to make Offshore Rate Loans shall be
suspended until the Bank notifies the Agent and the Borrowers that the
circumstances giving rise to such determination no longer exist.
(b) If a Bank determines that it is unlawful to maintain
any Offshore Rate Loan, the Borrowers shall, upon its receipt of notice of
such fact and demand from such Bank (with a copy to the Agent), prepay
in full such Offshore Rate Loans of that Bank then outstanding, together
with interest accrued thereon and amounts required under Section 3.4,
either on the last day of the Interest Period thereof, if the Bank may
lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if the Bank may not lawfully continue to maintain such Offshore
Rate Loan. If a Borrower is required to so prepay any Offshore Rate Loan,
then concurrently with such prepayment, such Borrower shall borrow from the
affected Bank, in the amount of such repayment, a Base Rate Loan.
(c) If the obligation of any Bank to make or maintain
Offshore Rate Loans has been so terminated or suspended, the Company may
elect, by giving notice to the Bank through the Agent that all Loans which
would otherwise be made by the Bank as Offshore Rate Loans shall be instead
Base Rate Loans.
(d) Before giving any notice to the Agent under this
Section, the affected Bank shall designate a different Lending Office with
respect to its Offshore Rate Loans if such designation will avoid the need for
giving such notice or making such demand and will not, in the judgment of the
Bank, be illegal or otherwise disadvantageous to the Bank.
3.3 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i) the
introduction of or any change in or in the interpretation of any
37
law or regulation after the Closing Date or (ii) the compliance by that Bank
with any guideline or request from any central bank or other Governmental
Authority after the Closing Date (whether or not having the force of law),
there shall be any increase in the cost to such Bank of agreeing to make or
making, funding or maintaining any Offshore Rate Loans, then the Borrowers
shall be liable for, and shall from time to time, within 10 days after
demand (with a copy of such demand to be sent to the Agent), pay to the
Agent for the account of such Bank, additional amounts as are sufficient to
compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the
introduction after the Closing Date of any Capital Adequacy Regulation, (ii)
any change after the Closing Date in any Capital Adequacy Regulation, (iii)
any change after the Closing Date in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or
(iv) compliance by the Bank (or its Lending Office) or any corporation
controlling the Bank with any Capital Adequacy Regulation adopted after the
Closing Date, affects or would affect the amount of capital required or
expected to be maintained by the Bank or any corporation controlling the Bank
and (taking into consideration such Bank's or such corporation's policies with
respect to capital adequacy and such Bank's desired return on capital)
determines that the amount of such capital is increased as a consequence of
its Commitment, loans, credits or obligations under this Agreement, then, upon
demand of such Bank to the Borrowers through the Agent, the Borrowers shall
pay to the Bank, from time to time as specified by the Bank, additional amounts
sufficient to compensate the Bank for such increase.
3.4 Funding Losses. The Borrowers shall reimburse each Bank and
hold each Bank harmless from any loss or expense which the Bank may sustain
or incur as a consequence of:
(a) the failure of the Borrowers to make on a timely basis
any payment of principal of any Offshore Rate Loan;
(b) the failure of the Borrowers to borrow, continue or
convert a Committed Loan after the Borrowers have given (or is deemed to have
given) a Notice of Borrowing or a Notice of Conversion/Continuation;
(c) the failure of the Borrowers to make any prepayment of
any Committed Loan in accordance with any notice delivered under Section 2.8;
(d) the prepayment (including pursuant to Section 2.8, 2.9 or
2.10) or other payment (including after acceleration
38
thereof) of any Offshore Rate Loan or Absolute Rate Bid Loan on a day that is
not the last day of the relevant Interest Period; or
(e) the automatic conversion under Section 2.4 of any
Offshore Rate Loan to a Base Rate Loan on a day that is not the last day of
the relevant Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate Loans or
from fees payable to terminate the deposits from which such funds were
obtained.
3.5 Inability to Determine Rates. If the Required Banks determine
that for any reason adequate and reasonable means do not exist for determining
the Offshore Rate for any requested Interest Period with respect to a
proposed Offshore Rate Loan, or that the Offshore Rate for any requested
Interest Period with respect to a proposed Offshore Rate Loan does not
adequately and fairly reflect the cost to such Banks of funding such Loan,
the Agent will promptly so notify the Company and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Loans hereunder
shall be suspended until the Agent upon the instruction of the Required
Banks revokes such notice in writing. Upon receipt of such notice, the
Borrowers may revoke any Notice of Borrowing or Notice of
Conversion/Continuation then submitted by it. If the Borrowers do not revoke
such Notice, the Banks shall make, convert or continue the Committed Loans,
as proposed by the Borrowers, in the amount specified in the applicable
notice submitted by the Borrowers, but such Committed Loans shall be made,
converted or continued as Base Rate Loans instead of Offshore Rate Loans. In
the case of any Offshore Currency Loans, the Borrowing or continuation shall
be in an aggregate amount equal to the Dollar Equivalent amount of the
originally requested Borrowing or continuation in the Offshore Currency, and
to that end any outstanding Offshore Currency Loans which are the subject of
any continuation shall be redenominated and converted into Base Rate Loans in
Dollars with effect from the last day of the Interest Period with respect to
any such Offshore Currency Loans.
3.6 Certificates of Banks. Any Bank claiming reimbursement or
compensation under this Article III shall deliver to the Borrowers (with a
copy to the Agent) a certificate setting forth in reasonable detail the amount
payable to the Bank hereunder and such certificate shall be conclusive and
binding on the Borrowers in the absence of manifest error. In determining
the amount payable to the Bank pursuant to this Article III, each Bank shall
act reasonably and in good faith and will, to the extent the increased costs
or reductions in amounts received or receivable relate to such Bank's loans in
general (including the Loans) and are not specifically attributable to the
Loans and other amounts
39
due hereunder, use averaging and attribution methods which are reasonable and
which cover all loans similar to the Loans made by such Bank.
3.7 Substitution of Banks. Upon the receipt by the either
Borrower from any Bank (an "Affected Bank") of a claim for compensation under
Section 3.1, 3.2 or 3.3, the Company may: (i) request the Affected Bank to
cooperate with the Company in its efforts to obtain a replacement bank or
financial institution satisfactory to the Company to acquire and assume all
or a ratable part of all of such Affected Bank's Loans and Commitment (a
"Replacement Bank"); (ii) request one more of the other Banks to acquire and
assume all or part of such Affected Bank's Loans and Commitment; or (iii)
designate a Replacement Bank. Any such designation of a Replacement Bank
under clause (i) or (iii) shall be subject to the prior written consent of the
Agent (which consent shall not be unreasonably withheld).
3.8 Survival. The agreements and obligations of the Borrowers in
this Article III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Conditions of Initial Loans. The obligation of each Bank to make
its initial Committed Loan hereunder, and to receive through the Agent the
initial Competitive Bid Request, is subject to the condition that the Agent
have received on or before the Closing Date all of the following, in form and
substance satisfactory to the Agent, and in sufficient copies for each Bank:
(a) Credit Agreement. This Agreement executed by each party
hereto.
(b) Notes. A Bid Note of the Company payable to the
order of each Bank and one Committed Note of each Borrower payable to the
order of each Bank.
(c) Resolutions. Certified copies of resolutions of the
Board of Directors of each Borrower authorizing or ratifying the execution,
delivery and performance by such Borrower of this Agreement and the other
documents provided for in this Agreement to be executed by such Borrower.
(d) Incumbency and Signatures. A certificate of the
Secretary or an Assistant Secretary of each Borrower certifying the names of
the officer or officers of each Borrower authorized
40
to sign this Agreement and the other documents provided for in this
Agreement to be executed by such Borrower, together with a sample of the true
signature of each such officer (it being understood that the Agent and each
Bank may conclusively rely on such certificate until formally advised by a
like certificate of any changes therein).
(e) Opinion of Counsel for the Company. The opinion of
Quarles & Brady, counsel for the Company, and Salans Hertzfeld & Heilbronn,
counsel for APSA, in the form of Exhibit D.
(f) Opinion of Counsel for the Agent. The opinion of Mayer,
Brown & Platt, counsel for the Agent, in the form of Exhibit G.
(g) Termination of Existing Credit Agreement. Evidence,
reasonably satisfactory to the Agent, that all "Commitments" under and as
defined in the Existing Credit Agreements have been terminated and all
obligations of the Company thereunder have been, or concurrently with the
making of the initial Loans will be, paid in full.
(h) Other Documents. Such other approvals, opinions,
documents or materials as the Agent or any Bank may request.
4.2 Conditions to All Borrowings. The obligation of each Bank to
make any Committed Loan to be made by it and the obligation of any Bank to
make any Bid Loan as to which the Company has accepted the relevant
Competitive Bid (including its initial Loan) is subject to the satisfaction
of the following conditions precedent on the relevant Borrowing Date:
(a) Notice of Borrowing. As to any Committed Loan, the
Agent shall have received (with, in the case of the initial Loan only, a
copy for each Bank) a Notice of Borrowing.
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V (excluding, except in the case of
the initial Loan hereunder, Sections 5.6 and 5.8) shall be true and correct
on and as of such Borrowing Date with the same effect as if made on and as of
such Borrowing Date.
(c) No Existing Default. No Default or Event of Default
shall exist or shall result from such Borrowing.
Each Notice of Borrowing and Competitive Bid Request submitted by the Company
hereunder shall constitute a representation and warranty by the Company
hereunder, as of the date of each such notice or request and as of each
Borrowing Date that the conditions in Section 4.2 are satisfied.
41
ARTICLE V
REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make Loans
hereunder, each Borrower represents and warrants to the Agent and the Banks as
follows:
5.1 Organization, etc. Each of the Company and each Subsidiary
is a corporation duly incorporated, validly existing and in good standing
(or similar concept under applicable state law) under the laws of the
jurisdiction of its incorporation. Each of the Company and each Subsidiary is
duly qualified to do business, and is in good standing, in all other
jurisdictions where failure to so qualify would have a Material Adverse
Effect. Each of the Company and each Subsidiary has all requisite corporate
power to own or lease the properties used in its business and to carry on its
business as now being conducted. Each of the Borrowers has full power and
authority as proposed to be conducted, and to execute and deliver this
Agreement and the other Loan Documents and to engage in the transactions
contemplated by this Agreement.
5.2 Authorization; No Conflict. The execution and delivery of this
Agreement, the borrowings hereunder, the execution and delivery of the other
Loan Documents, and the performance by the Company of its obligations under
this Agreement and the other Loan Documents are within each of the Borrower's
corporate powers, have been duly authorized by all necessary corporate action,
have received all necessary governmental and regulatory approval, and do not
and will not contravene or conflict with, or result in the creation or
imposition of a lien under, any provision of law or of the charter or
by-laws of such Borrower or of any agreement, instrument, order or decree
that is binding upon such Borrower or any Subsidiary.
5.3 Validity and Binding Nature. This Agreement and each other Loan
Document constitute the legal, valid, and binding obligations of each Borrower
enforceable against such Borrower in accordance with their respective
terms, except to the extent enforceability thereof is limited by
bankruptcy, insolvency or other laws relating to, or affecting the
enforcement of, creditors' rights in general, and by general principles of
equity.
5.4 Financial Statements.
(a) All balance sheets, all statements of earnings,
stockholders' equity and cash flow, and all other financial information which
have been furnished by or on behalf of APSA and the Company to the Bank,
including (i) the audited consolidated
42
balance sheet at August 31, 1994 and the related audited consolidated
statements of earnings, stockholders' equity and cash flow, for the Fiscal
Year then ended, of the Company and its Subsidiaries, certified by Deloitte
& Touche, (ii) the unaudited consolidated balance sheet dated May 31, 1995
and the related unaudited consolidated statements of earnings and cash flow,
for the Fiscal Quarter then ended, of the Company and its Subsidiaries, as
appearing in the report of the Company on Form 10-Q for such Fiscal Quarter
filed by the Company with the U.S. Securities and Exchange Commission, (iii)
the unaudited consolidated balance sheet at August 31, 1994 and related
consolidated statements of earnings and shareholders equity of APSA and its
Subsidiaries and (iv) the unaudited consolidated balance sheet dated May 31,
1995 for APSA and its Subsidiaries, have been prepared in accordance with
GAAP consistently applied, except where not applicable thereto or as
otherwise disclosed therein, throughout the periods involved and present
fairly (subject to normal year-end adjustments, if applicable) the financial
condition of the Company and its Subsidiaries or APSA and Subsidiaries, as
the case may be, as at the dates thereof and the results of their operations
for the periods then ended. The Company and its Subsidiaries did not have
as of such dates any material contingent liability or liabilities for taxes,
long-term leases or unusual forward or long-term commitments which are not
reflected in the financial statements described above, and which, in
accordance with GAAP, should have been reflected in such financial statements.
(b) With respect to any representation and warranty which is
deemed to be made after the date hereof by APSA or the Company, the balance
sheet and statements of earnings, shareholders' equity and cash flow, which as
of such date shall most recently have been furnished by or on behalf of APSA
or the Company to the Banks for the purposes of or in connection with this
Agreement shall have been prepared in accordance with GAAP consistently
applied (except as disclosed therein), and shall present fairly the
consolidated financial condition of the corporations covered thereby as at
the dates thereof for the periods then ended, subject, in the case of
quarterly financial statements, to normal year-end audit adjustments.
5.5 No Material Adverse Change. Since August 31, 1994, no event
has occurred or condition has arisen that has had or is reasonably likely to
have a Material Adverse Effect.
5.6 Litigation and Contingent Liabilities. To the best of each
Borrower's knowledge, no litigation (including, without limitation, derivative
actions), arbitration proceedings or governmental or regulatory proceedings
are pending or threatened against either Borrower that would, if adversely
determined, be reasonably likely to have a Material Adverse Effect, except as
43
set forth in Item 5.6 of the Disclosure Schedule. Other than any liability
incident to such litigation or proceedings, the Company does not have any
material contingent liabilities not provided for or disclosed in the financial
statements referred to in Section 5.4.
5.7 Liens. None of the assets of the Company or any Subsidiary is
subject to any Lien, except as permitted by Section 6.9.
5.8 Subsidiaries. Item 5.08 of the Disclosure Schedule correctly
sets forth the corporate name, jurisdiction of incorporation and ownership of
each Subsidiary of the Company. Such Subsidiaries and each corporation
becoming a Subsidiary of the Company after the date hereof is and will be a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and each Subsidiary of the Company
is and will be duly qualified to do business in each other jurisdiction where
failure to so qualify would have a Material Adverse Effect.
5.9 Pension and Welfare Plans. During the twelve-consecutive-month
period prior to the date of the execution and delivery of this Agreement or
the making of any Loan hereunder, no steps have been taken to terminate any
Pension Plan, and no contribution failure has occurred with respect to any
Pension Plan sufficient to give rise to a lien under Section 302(f) of ERISA.
No condition exists or event or transaction has occurred with respect to any
Pension Plan which could result in the incurrence by the Borrowers of any
material liability, fine or penalty. Except as disclosed in footnote M of
the Company's 1994 annual report, the Borrowers have no contingent liability
with respect to any post-retirement benefit under a Welfare Plan, other than
liability for continuation coverage described in Part 6 of subtitle B of title
I of ERISA.
5.10 Regulated Industry. Neither the Company nor any Subsidiary is
(a) an "investment company" or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as
amended, or (b) a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
5.11 Regulations G, U and X. Neither the Company nor any Subsidiary
is engaged principally, or as one of its important activities, in the
business of extending credit for the purpose of purchasing or carrying
Margin Stock, and no proceeds of any Loan will be used for the purpose,
whether immediate, incidental
44
or ultimate, of purchasing or carrying any Margin Stock or maintaining or
extending credit to others for such purpose.
5.12 Taxes. Each of the Company and each Subsidiary has filed all
federal and all other material tax returns and reports required
by law to have been filed by it and has paid all taxes and
governmental charges thereby shown to be owing, except any such
taxes or charges which are being diligently contested in good
faith by appropriate proceedings and for which adequate reserves
shall have been set aside on its books.
5.13 Environmental and Safety Matters. The Company and each
Subsidiary is in substantial compliance with all federal, state and local laws,
ordinances and regulations relating to safety and industrial hygiene or to
environmental condition, including, without limitation, all Environmental Laws
in jurisdictions in which the Company or any Subsidiary owns or operates, or
has owned or operated, a facility or site, or arranges or has arranged for
disposal or treatment of Hazardous Material, accepts or has accepted for
transport any Hazardous Material or holds or has held any interest in real
property or otherwise, except as disclosed on Item 5.13 of the Disclosure
Schedule, and, except as disclosed in items 2 and 3 of Item 5.13 of the
Disclosure Schedule, none of the matters disclosed on such Schedule has had or
is reasonably likely to have a Material Adverse Effect. No demand, claim,
notice, suit, suit in equity, action, administrative action, investigation
or inquiry, whether brought by any governmental authority, private person or
entity or otherwise, arising under, relating to or in connection with any
Environmental Laws is pending or, to the best of the Borrowers' knowledge,
after due investigation, threatened against the Company or any of its
Subsidiaries, any real property in which the Company or any such Subsidiary
holds or has held an interest or any past or present operation of the Company
or any Subsidiary, except as disclosed on Item 5.13 of the Disclosure
Schedule, and, except as disclosed in items 2 and 3 of Item 5.13 of the
Disclosure Schedule, none of the matters disclosed on such Schedule has had or
is reasonably likely to have a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries (i) is, to the best of the Borrower's knowledge,
after due investigation, the subject of any federal or state investigation
evaluating whether any remedial action is needed to respond to a Release of
any Hazardous Material into the environment, (ii) has received any notice of
any Hazardous Material in or upon any of its properties in violation of any
Environmental Laws, or (iii) knows of any basis for any such investigation,
notice or violation, except as disclosed on Item 5.13 of the Disclosure
Schedule, and, except as disclosed in items 2 and 3 of Item 5.13 of the
Disclosure Schedule, none of the matters disclosed on such Schedule has had or
is reasonably likely to have a Material Adverse Effect. No Release, threatened
Release or disposal of
45
Hazardous Material is occurring or has occurred on, under or to any real
property in which the Company or any of its Subsidiaries holds any interest
or performs any of its operations in violation of any Environmental Law except
as disclosed on Item 5.13 of the Disclosure Schedule, and, except as disclosed
in items 2 and 3 of Item 5.13 of the Disclosure Schedule, none of the matters
disclosed on such Schedule has had or is reasonably likely to have a Material
Adverse Effect.
5.14 Compliance with Law. Except as otherwise disclosed in the
Disclosure Schedule, each of the Company and each Subsidiary is in compliance
with all statutes, judicial and administrative orders, permits and
governmental rules and regulations which are material to its business or the
non-compliance with which has had or is reasonably likely to have a Material
Adverse Effect.
5.15 Information. All information heretofore or contemporaneously
herewith furnished by the Borrowers or any Subsidiary to any Bank for purposes
of or in connection with this Agreement and the transactions contemplated hereby
is, and all information hereafter furnished by or on behalf of the Borrower or
any Subsidiary to any Bank pursuant hereto or in connection herewith will be,
true and accurate in every material respect on the date as of which such
information is dated or certified, and such information, taken as a whole, does
not and will not omit to state any material fact necessary to make such
information, taken as a whole, not misleading.
5.16 Ownership of Shares. Not less than ninety-nine percent (99%) of
the issued and outstanding shares of capital stock of APSA are owned by the
Company.
5.17 Ownership of Properties. Each of the Company and each
Subsidiary owns good and marketable title to or holds valid leasehold
interests in all of its material properties and assets, real and personal, of
any nature whatsoever, free and clear of all Liens except as permitted
pursuant to Section 6.9 and none of them are in default beyond the
expiration of any applicable grace period of any material obligation under any
leases creating any of their leasehold interests in real property, and none of
such property is subject to any Lien except as permitted pursuant to Section
6.9.
5.18 Patents, Trademarks, etc. Each of the Company and each
Subsidiary owns or licenses and possesses all such patents, patent rights,
trademarks, trademark rights, trade names, trade name rights, service
marks, service mark rights and copyrights as the Company considers
necessary for the conduct of the businesses of the Company and such
Subsidiaries as now conducted without, individually or in the aggregate, any
infringement upon rights of other persons which would be reasonably likely to
have a Materi-
46
ally Adverse Effect, except as may be disclosed in Item 5.18 of the Disclosure
Schedule.
5.19 Insurance. The Company and its Subsidiaries maintain with
responsible insurance companies insurance (including insurance against claims
and liabilities arising out of the manufacture or distribution of any products)
with respect to their properties and businesses against such casualties and
contingencies and of such types and in such amounts as is customary in the
case of similar businesses, except as may be disclosed in Item 5.19 of the
Disclosure Schedule.
ARTICLE VI
COVENANTS
Until the expiration or termination of the Commitments, and
thereafter until all obligations of the Borrowers hereunder are paid in
full, each Borrower agrees that, unless at any time the Required Banks shall
otherwise expressly consent in writing, it will:
6.1 Reports, Certificates and Other Information. Furnish to the
Agent and each Bank:
(a) Audit Report. Promptly when available and in any event
within 90 days after the close of each Fiscal Year,
(i) in the case of the Company a copy of the annual audit
report of the Company and its Subsidiaries for such Fiscal Year,
including therein consolidated balance sheets of the Company and its
Subsidiaries as of the end of such Fiscal Year and consolidated
statements of earnings and cash flow of the Company and its
Subsidiaries for such Fiscal Year certified, without qualification
as to going concern or scope, by independent auditors of recognized
national standing selected by the Company and reasonably acceptable
to the Required Banks, (ii) in the case of APSA, unaudited
consolidated balance sheet at the close of such Fiscal Year and
related consolidated statements of earnings and shareholders equity
for such Fiscal Year, of APSA and its Subsidiaries certified by the
chief financial officer or the Treasurer of APSA, and (iii) in
the case of the Company, an unaudited consolidating balance sheet
and statements of earnings and cashflow of such Fiscal Year, with
comparable information at the close of and for the prior Fiscal Year.
(b) Interim Reports. Promptly when available and in any
event within 60 days after the end of each Fiscal Quarter (except the last
Fiscal Quarter of each Fiscal Year),
47
consolidated balance sheets of the Company and its Subsidiaries and APSA
and its Subsidiaries as of the end of such Fiscal Quarter, consolidated
statements of earnings and (only in the case of the Company) a consolidated
statement of cash flow for such Fiscal Quarter and for the period beginning
with the first day of such Fiscal Year and ending on the last day of such
Fiscal Quarter of the Company or APSA, as the case may be, and its respective
Subsidiaries, with comparable information at the close of and for the
corresponding Fiscal Quarter of the prior Fiscal Year and for the
corresponding portion of such prior Fiscal Year, together with a certificate
of the chief financial officer or the Treasurer of the Company or APSA, as
the case may be, to the effect that such financial statements fairly present
the financial condition and results of operations of the Company and its
Subsidiaries as of the date and periods indicated (subject to normal year-end
adjustments).
(c) Compliance Certificate. Concurrently with each set of
financial statements delivered pursuant to Section 6.1(a) and 6.1(b), a
Compliance Certificate executed by the chief financial officer or the Treasurer
of the Company.
(d) Reports to SEC. Promptly upon the filing or sending
thereof, a copy of any annual, periodic or special report or registration
statement (inclusive of exhibits thereto) filed by the Company or any
Subsidiary with the SEC or any securities exchange.
(e) Notice of Default, Litigation and ERISA Matters.
Immediately upon becoming aware of any of the following, written notice
describing the same and the steps being taken by the Company or the Subsidiary
affected thereby with respect thereto: (i) the occurrence of an Event of
Default or a Default; (ii) any litigation, arbitration or governmental
investigation or proceeding not previously disclosed by the Company to the
Banks which has been instituted or, to the knowledge of the Company, is
threatened against the Company or any Subsidiary or to which any of the
properties of any thereof is subject which, if adversely determined, is
reasonably likely to have a Material Adverse Effect; (iii) the institution of
any steps by the Company, any of its Subsidiaries or any other Person to
terminate any Pension Plan, or the failure to make a required contribution to
any Pension Plan if such failure is sufficient to give rise to a lien under
Section 302(f) of ERISA, or the taking of any action with respect to a
Pension Plan which could result in the requirement that the Company furnish a
bond or other security to the PBGC or such Pension Plan, or the occurrence of
any event with respect to any Pension Plan which could result in the
incurrence by the Company of any material liability, fine or penalty, or any
material increase in the contingent liability of the Company with respect to
any post-retirement Welfare Plan benefit; and (iv) any
48
other event or occurrence which has had or is reasonably likely to have a
Material Adverse Effect.
(f) Other Information. From time to time such other
information concerning the Company and its Subsidiaries as any Bank or the
Agent may reasonably request.
6.2 Books, Records and Inspections. Keep, and cause each
Subsidiary to keep, its books and records reflecting all of its business
affairs and transactions in accordance with sound business practices
sufficient to allow the preparation of financial statements in accordance with
GAAP; and permit, and cause each Subsidiary to permit, any Bank or the Agent
or any representative thereof, at reasonable times and on reasonable notice,
to visit any or all of its offices, to discuss its financial matters with its
officers and its independent auditors (and the Company hereby authorizes
such independent auditors to discuss such financial matters with any Bank
or the Agent or any representative thereof), and to examine (and, at the
Company's or such Subsidiary's expense, make copies of) any of its books or
other corporate records.
6.3 Insurance. Maintain, and cause each Subsidiary to
maintain, with responsible and financially-sound insurance companies or
associations, insurance in such amounts and covering such risks as is usually
maintained by companies engaged in similar businesses and owning similar
properties similarly situated, except as disclosed in Item 5.19 of the
Disclosure Schedule.
6.4 Compliance with Law; Payment of Taxes and Liabilities. (a)
Comply, and cause each Subsidiary to comply, in all material respects with
all applicable laws, rules, regulations and orders; and (b) pay, and cause
each Subsidiary to pay, prior to delinquency, all taxes and other governmental
charges against it or any of its property, provided, however, that the
foregoing shall not require the Company or any Subsidiary to pay any such
tax or charge so long as it shall contest the validity thereof in good faith
by appropriate proceedings and shall set aside on its books adequate reserves
with respect thereto.
6.5 Maintenance of Existence, etc. Maintain and preserve, and
(subject to Section 6.7) cause each Subsidiary to maintain and preserve,
(a) its existence and good standing in the jurisdiction of its
organization and (b) its foreign qualification in each other jurisdiction
where the nature of its business makes such qualification necessary
(except in those instances in which the failure to be qualified or in good
standing will not have a Material Adverse Effect).
49
6.6 Financial Ratios and Restrictions.
(a) Minimum Shareholders Equity. Not permit at any time (i)
Shareholders Equity for the Company to be less than the sum of $91,000,000
plus 25% of Consolidated Net Income for each Fiscal Quarter ending on or
after February 28, 1995 (excluding any Fiscal Quarter in which there is a
loss) and (ii) Shareholders Equity for APSA to be less than $1.
(b) Fixed Charge Coverage Ratio. Not permit the Fixed Charge
Coverage Ratio to be less than 1.5:1.0.
(c) Debt to Capital Ratio. Not permit at any time the Debt
to Capital Ratio to exceed 58%.
6.7 Mergers, Consolidations, Purchases and Sales. Not, and not
permit any Subsidiary to, be a party to any merger or consolidation, or
purchase or otherwise acquire all or a substantial portion of the business or,
assets of, or any stock of any class of, or any partnership or joint venture
interest in, any other Person, or, except in the ordinary course of its
business, sell, transfer, convey or lease all or a substantial part of its
assets, or sell or assign with or without recourse any receivables, except for:
(a) any such merger or consolidation, sale, transfer,
conveyance, lease or assignment of or by any Subsidiary into, with
or to the Company or into, with or to any wholly-owned Subsidiary;
(b) any such purchase or other acquisition by the Company or
APSA of the assets or stock of any wholly-owned Subsidiary;
(c) (i) the Permitted Receivables Securitization and (ii) any
sale, transfer, conveyance or lease of any asset provided that (x)
the aggregate book value (disregarding any write-downs of such book
value other than ordinary depreciation and amortization) of all
assets disposed of pursuant to this clause (c)(ii) in any Fiscal Year
do not exceed 15% of Tangible Net Assets (measured as of the last day
of the most recently ended Fiscal Year) and (y) no Event of Default or
Default exists or would result therefrom; or
(d) any acquisition if (i) (A) such acquisition is an
acquisition of assets, or (B) such acquisition is by merger and the
Company or a wholly-owned Subsidiary is the surviving Corporation, or
(C) after such acquisition the Company (if it is the acquiring
entity) or a Subsidiary owns (x) at least a majority of the
securities of each class having ordinary voting power of, or a
majority of the
50
ownership interest in, the acquired Person or (y) more than 10%
but less than a majority of the securities of each class having
ordinary voting power of, or more than 10% but less than a majority
of the ownership interest in, the acquired Person and, immediately
after giving effect to any acquisition described in this subclause
(y), the aggregate book value of all such minority Investments in
the equity securities or other ownership interests of other Persons
by the Company and its Subsidiaries does not exceed 20% of the
Tangible Net Assets of the Company and its Subsidiaries, (ii) no
Event of Default or Default exists or would result therefrom and (iii)
prior to the consummation of such acquisition, the Company provides
to each Bank notice of such acquisition and, if the purchase price of
such acquisition is $5,000,000 or more, a certificate of the chief
financial officer or the treasurer of the Company (attaching
computations to demonstrate compliance with all financial covenants
hereunder) stating that such acquisition complies with this Section
6.7 and that any other conditions under this Agreement relating to
such acquisition have been satisfied.
6.8 Commercial Paper Lines. Not, and not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist or otherwise
become or be liable in respect of any Debt with respect to unsecured
commercial paper except to the extent the Company or such Subsidiary has
unused unsecured lines of credit backing up such commercial paper.
6.9 Liens. Not, and not permit any Subsidiary to, create or
permit to exist any Lien on any of its real or personal properties, assets
or rights of whatsoever nature, whether now owned or hereafter acquired, except
(a) Liens for taxes or other governmental charges not at the time delinquent
or thereafter payable without penalty or being contested in good faith by
appropriate proceedings and, in each case, for which it maintains adequate
reserves; (b) Liens arising in the ordinary course of business (such as
(i) Liens of carriers, warehousemen, mechanics and materialmen and other
similar Liens imposed by law and (ii) Liens incurred in connection with
worker's compensation, unemployment compensation and other types of social
security (excluding Liens arising under ERISA) or in connection with surety
and appeal bonds, bids, performance bonds and similar obligations) for sums
not overdue or being contested in good faith by appropriate proceedings and
not involving any deposits or advances or borrowed money or the deferred
purchase price of property or services, and, in each case, for which it
maintains adequate reserves; (c) Liens identified on Item 6.09 of the
Disclosure Schedule; (d) Liens in connection with Capital Leases (to the
extent permitted hereunder); (e) any Lien arising in connection with the
acquisition of fixed assets (whether real or
51
personal property) after the date hereof, and attaching only to the property
being acquired, provided that the principal amount of the Debt secured by
each such Lien shall not exceed the purchase price of the applicable fixed
asset and the aggregate amount of all Debt secured by such Liens shall not
at any time exceed $3,000,000; (f) attachments, judgments and other similar
Liens, for sums not exceeding $2,000,000, arising in connection with court
proceedings, provided the execution or other enforcement of such Liens is
effectively stayed and the claims secured thereby are being actively
contested in good faith and by appropriate proceedings; (g) other Liens
incidental to the conduct of the business of the Company or a Subsidiary or
the ownership of its property or assets, including easements, rights of way,
restrictions, minor defects or irregularities in title and other similar Liens,
which Liens were not incurred in connection with the borrowing of money and do
not, in any case or in the aggregate, interfere in any material respect with
the ordinary conduct of the business of the Company or any Subsidiary; (h)
building restrictions, zoning laws and other statutes, laws, rules,
regulations, ordinances and restrictions, and any amendments thereto, now or
at any time hereafter adopted by any governmental authority having
jurisdiction; (i) any Lien existing on any asset of any corporation which
becomes a Subsidiary of the Company after the date hereof, which Lien was not
created in contemplation of such event, provided that (x) Liens on current
assets of such corporation shall be discharged within 120 days after such
corporation becomes a Subsidiary of the Company and (y) the aggregate amount
of Debt secured by all such Liens does not at any time exceed $5,000,000; and
(k) other Liens securing obligations not at any time exceeding $6,000,000.
6.10 Use of Proceeds. Use the proceeds of the Loans for general
corporate purposes; and not use or permit any proceeds of any Loan to be used,
either directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of (a) "purchasing or carrying" any Margin Stock within the meaning
of Regulation U of the Board of Governors of the Federal Reserve System, as
amended from time to time, or (b) purchasing or otherwise acquiring any
stock of any Person if such Person (or its board of directors) has (i) announced
that it will oppose such purchase or other acquisition or (ii) commenced any
litigation which alleges that such purchase or other acquisition violates, or
will violate, any applicable law.
6.11 Maintenance of Property. Maintain, and cause each Subsidiary to
maintain, its properties which are material to the conduct of its business in
good working order and condition (ordinary wear and tear excepted).
6.12 Employee Benefit Plans. Maintain, and cause each Subsidiary to
maintain, each Pension Plan in compliance in all
52
material respects with all applicable Requirements of Law and regulations.
6.13 Business Activities. Not make any substantial change in the nature
of the business of the Company and its Subsidiaries, taken as a whole, from
that engaged in on the date of this Agreement.
6.14 Environmental Matters.
(a) Environmental Obligations. (i) Comply, and cause each
Subsidiary to comply, in a reasonable manner with any applicable Federal or
state judicial or administrative order requiring the performance at any real
property owned, operated, or leased by the Company or any Subsidiary of
activities in response to any Release or threatened Release of any Hazardous
Material, except for the period of time that the Company or such Subsidiary is
diligently in good faith contesting such order; (ii) use and operate, and
cause each Subsidiary to use and operate, all of its facilities and
properties in material compliance with all Environmental Laws; (iii) keep,
and cause each Subsidiary to keep, all necessary permits, approvals,
certificates, licenses and other authorizations relating to environmental
matters in effect and remain in material compliance therewith; (iv) handle,
and cause each Subsidiary to handle, all Hazardous Materials in material
compliance with all applicable Environmental Laws; and (v) not, and not permit
any Subsidiary to, commence disposal of any Hazardous Material into or onto
any real property owned, operated or leased by the Company or any Subsidiary
nor allow any Lien imposed pursuant to any Environmental Law to attach to any
such real property.
(b) Environmental Information. Within 60 days of receipt
thereof, notify the Agent of the receipt by the Company or any Subsidiary of
any written claim, demand, proceeding, action or notice of liability by any
Person arising out of or relating to the Release or threatened Release of any
Hazardous Material, except for any release or threatened release with respect
to which the maximum liability of the Company and its Subsidiaries is
reasonably expected to be less than $750,000; and within 60 days of any
Release, threatened Release, or disposal of any Hazardous Material reported
to any governmental regulatory authority at any real property owned,
operated or leased by the Company or any Subsidiary notify the Agent of
such release, threat of release or disposal, except for any release,
threat of release or disposal with respect to which the maximum liability of
the Company and its Subsidiaries is reasonably expected to be less than
$750,000.
6.15 Unconditional Purchase Obligations. Not, and not permit any
Subsidiary to, enter into or be a party to any
53
contract for the purchase of materials, supplies or other property or services,
if such contract requires that payment be made by it regardless of whether or
not delivery is ever made of such materials, supplies or other property or
services.
6.16 Inconsistent Agreements. Not, and not permit any Subsidiary to,
enter into any agreement containing any provision which would be violated or
breached by any borrowing by the Borrower hereunder or by the performance
by the Company or any Subsidiary of any of its obligations hereunder.
6.17 Transactions with Affiliates. Not, and not permit any Subsidiary
to, enter into or permit to exist any transaction, arrangement or contract with
any of its Affiliates (other than the Company or any wholly-owned Subsidiary) or
any officer or director of the Company or any Affiliate which is on terms less
favorable than would be available from a Person which is not an Affiliate.
Nothing in this Section 6.18 shall prohibit any transaction expressly permitted
by Section 6.11.
6.18 The Company's and Subsidiaries' Stock. The Company will not,
nor will it permit any of its Subsidiaries to, purchase or otherwise
acquire any shares of capital stock of the Company; and, except pursuant to
transactions permitted by Sections 6.7 not take any action, or permit any of
its Subsidiaries to take any action, which will, so long as any shares of
capital stock or indebtedness of any corporation which is a Subsidiary at the
date of this Agreement are owned by the Company or any Subsidiary, result
in a decrease in the percentage of the outstanding shares in capital stock of
such corporation owned at the date of this Agreement by the Company and
Subsidiaries.
6.19 Negative Pledges; Subsidiary Payments. The Company will not, nor
will it permit any Subsidiary to, enter into any agreement (excluding this
Agreement) (a) prohibiting the creation or assumption of any Lien upon their
respective properties, revenues, or assets, whether now owned or hereafter
acquired; (b) which would restrict the ability of any Subsidiary to pay or
make dividends or distributions in cash or kind, to make loans, advances or
other payments of whatsoever nature, or to make transfers or distributions of
all or any part of its assets, in each case to the Company or to any
corporation as to which such Subsidiary is a Subsidiary; or (c) which would
require the consent or waiver of any third party to any amendment to this
Agreement or any other Loan Document.
54
ARTICLE VII
EVENTS OF DEFAULT AND THEIR EFFECT
7.1 Events of Default. Each of the following shall constitute an Event
of Default under this Agreement:
(a) Non-Payment of Loans, etc. Default in the payment
when due of the principal of any Loan; or default, and continuance thereof
for five Business Days, in the payment when due of any interest on any Loan
or any fees or other amounts payable by the Borrowers hereunder.
(b) Non-Payment of Other Indebtedness for Borrowed Money.
Default in the payment when due (subject to any applicable grace period),
whether by acceleration or otherwise, of any other Debt of, or guaranteed by,
the Company or any Subsidiary in excess in the aggregate of $2,000,000; or
default in the performance or observance of any obligation or condition with
respect to any such other indebtedness in excess in the aggregate of
$2,000,000 if the effect of such default is to accelerate the maturity of any
such indebtedness or to permit the holder or holders thereof, or any trustee
or agent for such holders, to cause such indebtedness to become due and
payable prior to its expressed maturity.
(c) Warranties. Any warranty made by either Borrower herein
is breached, or is false or misleading, in any material respect, or any
schedule, certificate, financial statement, report, notice or other writing
furnished by the Borrowers to the Agent or any Bank is false or misleading in
any material respect on the date as of which the facts therein set forth are
stated or certified.
(d) Bankruptcy, Insolvency, etc. The Company or any
Subsidiary becomes insolvent (it being understood that a Subsidiary shall
not be deemed to be insolvent solely because it has negative net worth) or
generally fails to pay, or admits in writing its inability to pay, debts as
they become due; or the Company or any Subsidiary applies for, consents to
or acquiesces in the appointment of a trustee, receiver or other custodian
for the Company or such Subsidiary or any property thereof, or makes a
general assignment for the benefit of creditors; or, in the absence of such
application, consent or acquiescence, a trustee, receiver or other custodian is
appointed for the Company or any Subsidiary or for a substantial part of
its property and is not discharged within 30 days; or any bankruptcy,
reorganization, debt arrangement or other case or proceeding under any
bankruptcy or insolvency law, or any dissolution or liquidation proceeding
(except the voluntary dissolution, not under any bankruptcy or
55
insolvency law, of a Subsidiary), is commenced in respect of the Company or
any Subsidiary, and, if such case or proceeding is not commenced by the
Company or such Subsidiary, it is consented to or acquiesced in by the
Company or such Subsidiary or remains for 30 days undismissed; or the Company
or any Subsidiary takes any corporate action to authorize, or in furtherance
of, any of the foregoing.
(e) Non-Compliance with Certain Covenants. Failure by the
Borrowers to comply with or to perform any provision of Section 6.6 through
6.10, 6.16, 6.18 or 6.19.
(f) Non-Compliance with Other Provisions of this
Agreement. Failure by the Borrowers to comply with or to perform any
provision of this Agreement (if such failure does not constitute an Event of
Default under any of the other provisions of this Section 7.1), and
continuance of such failure for 30 days after notice thereof to the Company
from the Agent or any Bank.
(g) Pension Plans. (i) Institution of any steps by the
Company or any other Person to terminate a Pension Plan if as a result of
such termination the Company could be required to make a contribution to such
Pension Plan, or could incur a liability or obligation to such Pension Plan,
in excess of $1,000,000, or (ii) a contribution failure occurs with respect to
any Pension Plan sufficient to give rise to a Lien under section 302(f) of
ERISA.
(h) Judgments. Final judgments which exceed an aggregate
of $2,000,000 (excluding any portion thereof which is covered by insurance
maintained with a responsible insurance company which has accepted a tender
of defense and indemnification without reservation of rights) shall be
rendered against the Company or any Subsidiary and shall not have been
discharged or vacated or had execution thereof stayed pending appeal within 30
days after entry or filing of such judgments.
(i) Change of Control. An Impermissible Change of Control
shall occur.
(j) Material Adverse Effect. Any event shall occur which,
in the opinion of the Required Banks, has had or is reasonably likely to have
a Material Adverse Effect.
(k) Guarantee. The obligations of either Borrower under
Article IX shall cease to be in full force and effect or either Borrower
shall contest in any manner the validity, binding nature or enforceability of
Article IX with respect to itself or the other Borrower.
56
7.2 Effect of Event of Default. If any Event of Default
described in Section 7.1(d) shall occur, the Commitments (if they have not
theretofore terminated) shall immediately terminate and all Loans and all
interest and other amounts due hereunder shall become immediately due and
payable, all without presentment, demand or notice of any kind (all of which
are hereby expressly waived by the Borrowers); and, in the case of any other
Event of Default, the Agent may with the consent of the Required Banks, and
shall upon written request of the Required Banks, declare the Commitments (if
they have not theretofore terminated) to be terminated and/or all Loans and
all interest and other amounts due hereunder to be due and payable,
whereupon the Commitments (if they have not theretofore terminated) shall
immediately terminate and/or all Loans and all interest and other amounts due
hereunder shall become immediately due and payable, all without presentment,
demand or notice of any kind (all of which are hereby expressly waived by the
Borrowers). The Agent shall promptly advise the Company and each Bank of any
such declaration, but failure to do so shall not impair the effect of such
declaration. Notwithstanding the foregoing, the effect as an Event of
Default of any event described in Section 7.1(a) or Section 7.1(d) may be
waived by the written concurrence of all of the Banks, and the effect as an
Event of Default of any other event described in Section 7.1 may be waived by
the written concurrence of the Required Banks.
ARTICLE VIII
THE AGENT
8.1 Appointment and Authorization; Agent. Each Bank hereby
irrevocably (subject to Section 8.9) appoints, designates and authorizes the
Agent to take such action on its behalf under the provisions of this Agreement
and each other Loan Document and to exercise such powers and perform such
duties as are expressly delegated to it by the terms of this Agreement or
any other Loan Document, together with such powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or in any other Loan Document, the Agent shall
not have any duties or responsibilities, except those expressly set forth
herein, nor shall the Agent have or be deemed to have any fiduciary
relationship with any Bank, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the Agent.
Without limiting the generality of the foregoing sentence, the use of the term
"agent" in this Agreement with reference to the Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is used merely as
a matter of market custom,
57
and is intended to create or reflect only an administrative relationship
between independent contracting parties.
8.2 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
8.3 Liability of Agent. None of the Agent-Related Persons shall (i)
be liable for any action taken or omitted to be taken by any of them under or
in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any of the
Banks for any recital, statement, representation or warranty made by the
Company or any Subsidiary or Affiliate of the Company, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or any
other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document,
or for any failure of the Borrowers or any other party to any Loan Document
to perform its obligations hereunder or thereunder. No Agent-Related Person
shall be under any obligation to any Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the properties,
books or records of the Company or any of the Company's Subsidiaries or
Affiliates.
8.4 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the Company), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall
first receive such advice or concurrence of the Required Banks as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by the Banks against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any
58
such action. The Agent shall in all cases be fully protected in acting, or
in refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of the Required Banks and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all of the Banks.
(b) For purposes of determining compliance with the
conditions specified in Section 4.1, each Bank that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by the Agent to such
Bank for consent, approval, acceptance or satisfaction, or required thereunder
to be consented to or approved by or acceptable or satisfactory to the Bank.
8.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Agent for the account of the Banks, unless the
Agent shall have received written notice from a Bank or the Company referring
to this Agreement, describing such Default or Event of Default and stating
that such notice is a "notice of default". The Agent will notify the Banks
of its receipt of any such notice. The Agent shall take such action with
respect to such Default or Event of Default as may be requested by the
Required Banks in accordance with Article VII; provided, however, that unless
and until the Agent has received any such request, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action,
with respect to such Default or Event of Default as it shall deem advisable
or in the best interest of the Banks.
8.6 Credit Decision. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and that
no act by the Agent hereinafter taken, including any review of the affairs
of the Company and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Bank.
Each Bank represents to the Agent that it has, independently and without
reliance upon any Agent-Related Person and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, prospects, operations, property, financial
and other condition and creditworthiness of the Company and its Subsidiaries,
and all applicable bank regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement
and to extend credit to the Borrowers hereunder. Each Bank also represents
that it will, independently and without reliance upon any Agent-Related Person
and based on such documents and
59
information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers. Except for notices, reports and other
documents expressly herein required to be furnished to the Banks by the
Agent, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of the
Borrowers which may come into the possession of any of the Agent-Related
Persons.
8.7 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand
the Agent-Related Persons (to the extent not reimbursed by or on behalf of
the Borrowers and without limiting the obligation of the Borrowers to do so),
pro rata, from and against any and all Indemnified Liabilities; provided,
however, that no Bank shall be liable for the payment to the Agent-Related
Persons of any portion of such Indemnified Liabilities resulting solely from
such Person's gross negligence or willful misconduct. Without limitation of
the foregoing, each Bank shall reimburse the Agent upon demand for its ratable
share of any costs or out-of-pocket expenses (including Attorney Costs)
incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that the Agent is not reimbursed for such expenses by or on behalf of the
Borrowers. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Agent.
8.8 BAI in Individual Capacity. BAI and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory, underwriting or other business with the Company and
its Subsidiaries and Affiliates as though BofA were not the Agent hereunder and
without notice to or consent of the Banks. The Banks acknowledge that,
pursuant to such activities, BAI or its Affiliates may receive information
regarding the Company or its Affiliates (including information that may be
subject to confidentiality obligations in favor of the Company or such
Subsidiary) and acknowledge that neither BAI nor the Agent shall be under
any obligation to provide such information to them. With respect to its
Loans, BAI shall have the same rights and powers under this
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Agreement as any other Bank and may exercise the same as though BAI were not
the Agent.
8.9 Successor Agent. The Agent may, and at the request of the
Required Banks shall, resign as Agent upon 30 days' notice to the Banks. If
the Agent resigns under this Agreement, the Required Banks shall appoint from
among the Banks a successor agent for the Banks. If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the
Agent may appoint, after consulting with the Banks and the Company, a
successor agent from among the Banks. Upon the acceptance of its
appointment as successor agent hereunder, such successor agent shall succeed
to all the rights, powers and duties of the retiring Agent and the term
"Agent" shall mean such successor agent and the retiring Agent's
appointment, powers and duties as Agent shall be terminated. After any
retiring Agent's resignation hereunder as Agent, the provisions of this
Article VIII and Sections 8.4 and 8.5 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor agent has accepted appointment as Agent by the
date which is 30 days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of the Agent hereunder until
such time, if any, as the Required Banks appoint a successor agent as
provided for above.
8.10 Withholding Tax.
(a) If any Bank is a "foreign corporation, partnership or
trust" within the meaning of the Code and such Bank claims exemption from, or a
reduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code,
such Bank agrees with and in favor of the Agent, to deliver to the Agent:
(i) if such Bank claims an exemption from, or
a reduction of, withholding tax under a United States tax treaty, two
properly completed and executed copies of IRS Forms 1001 before the
payment of any interest in the first calendar year and before the
payment of any interest in each third succeeding calendar year during
which interest may be paid under this Agreement;
(ii) if such Bank claims that interest paid
under this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States trade or
business of such Bank, two properly completed and executed copies of
IRS Form 4224 before the payment of any interest is due in the first
taxable year of such Bank and in each succeeding taxable year of
such Bank during which interest may be paid under this Agreement; and
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(iii) such other form or forms as may be
required under the Code or other laws of the United States as a
condition to exemption from, or reduction of, United States
withholding tax.
Such Bank agrees to promptly notify the Agent of any change
in circumstances which would modify or render invalid any claimed exemption or
reduction.
(b) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form 1001
and such Bank sells, assigns, grants a participation in, or otherwise
transfers all or part of the Obligations of either Borrower to such Bank, such
Bank agrees to notify the Agent of the percentage amount in which it is no
longer the beneficial owner of Obligations of either Borrower to such Bank.
To the extent of such percentage amount, the Agent will treat such Bank's IRS
Form 1001 as no longer valid.
(c) If any Bank claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells, assigns, grants
a participation in, or otherwise transfers all or part of the Obligations of
either Borrower to such Bank, such Bank agrees to undertake sole responsibility
for complying with the withholding tax requirements imposed by Sections 1441
and 1442 of the Code.
(d) If any Bank is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any interest payment
to such Bank an amount equivalent to the applicable withholding tax after
taking into account such reduction. However, if the forms or other
documentation required by Section 8.10(a) are not delivered to the Agent, then
the Agent may withhold from any interest payment to such Bank not providing
such forms or other documentation an amount equivalent to the applicable
withholding tax imposed by Sections 1441 and 1442 of the Code, without
reduction.
(e) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered, was not properly executed,
or because such Bank failed to notify the Agent of a change in circumstances
which rendered the exemption from, or reduction of, withholding tax
ineffective, or for any other reason) such Bank shall indemnify the Agent
fully for all amounts paid, directly or indirectly, by the Agent as tax or
otherwise, including penalties and interest, and including any taxes imposed
by any jurisdiction on the amounts payable to the Agent under this Section,
together with all costs and expenses (including Attorney Costs). The
obligation of the
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Banks under this Section 8.10(e) shall survive the payment of all Obligations
and the resignation or replacement of the Agent.
ARTICLE IX
GUARANTEE
9.1 Guarantee from Borrowers. In order to induce the Banks to agree
to make Loans to individual Borrowers under this Agreement, each Borrower
hereby unconditionally and irrevocably guarantees, as primary obligor and not
merely as surety) to and for the benefit of the Banks and the Agent the due
and punctual payment of all Obligations, including, without limitation, the
Bid Loans and the Committed Loans (the "Guaranteed Indebtedness").
9.2 Expenses. Each Borrower irrevocably and unconditionally agrees
to pay any and all expenses, including reasonable attorneys' fees and
disbursements, incurred by any of the Banks or the Agent in enforcing its or
their rights under or in connection with this Section 9.
9.3 Waivers. Each Borrower agrees that the Guaranteed Indebtedness
may be extended or renewed, in whole or in part, without notice to or further
assent from it and without impairing its obligations under this Section 9.
Each Borrower hereby waives (a) presentation to, demand of payment from, and
protest and notice of protest to such Borrower concerning the Guaranteed
Indebtedness, (b) protest for nonpayment of principal of or interest on the
Guaranteed Indebtedness and (c) all other notices to which it might otherwise
be entitled as guarantor of the Guaranteed Indebtedness.
9.4 No Impairment. The obligations of each Borrower under this
Section 9 shall not be impaired by reason of any claim or waiver, release,
surrender or compromise with respect to any other Borrower, and shall not
be subject to any defense or set-off by reason of the unenforceability, in
whole or in part, of the Guaranteed Indebtedness or any provision of this
Agreement with respect to any other Borrower. The obligations of each
Borrower hereunder with respect to its guaranty of the obligations of each
other Borrower hereunder shall not be impaired by (a) any lack of validity or
enforceability of this Agreement or any other Loan Document with respect to
any other Borrower, (b) the failure of any of the Banks or the Agent to
assert any claim or demand or to enforce any right or remedy against any
other Borrower or any other Person hereunder or under the other Loan
Documents or with respect to this Agreement or the other Loan Documents, (c)
any extension or renewal, in whole or in part, of this Agreement or any other
Loan Documents, (d) any
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rescission, waiver, release, compromise, amendment or modification of, or any
consent to departure from, any of the terms or provisions of this Agreement or
the other Loan Documents or any agreement, (e) any failure by any Person in
the performance of any obligation with respect to this Agreement or any other
Loan Documents, (f) any act by the Agent or any Bank to obtain or retain a
Lien upon or a security interest in any property to secure any Guaranteed
Indebtedness, or to release any security for any of the Guaranteed
Indebtedness, (g) any exchange, release or nonperfection of any Lien, (h) any
bankruptcy of a Borrower or any other Person, or (i) any other act or
omission which may or might in any manner vary the risk of a Borrower, or
which would otherwise operate as a discharge of or other defense available to a
Borrower, as a matter of law.
9.5 Waiver of Resort. Each Borrower agrees that this Section 9
constitutes a guaranty of payment and not merely of collection and waives
any right to require that any resort be had by the Agent or any of the
Banks to any security held by it for the payment of the Guaranteed
Indebtedness or to any balance or any deposit account or credit on the books
of the Agent or any Bank in favor of any Borrower or any of their
Subsidiaries.
9.6 Reinstatement. Each Borrower agrees that this Section 9 shall
continue to be effective or be reinstated, as the case may be, if at any
time any part of any payment of principal of, or interest on, the Guaranteed
Indebtedness is stayed, rescinded or must otherwise be returned by any Bank
or the Agents upon the bankruptcy or reorganization of any Borrower or any
other Person.
9.7 Payment. Upon the failure of any Borrower to pay any of the
Guaranteed Indebtedness when and as the same shall become due, whether at
maturity, by acceleration or otherwise, each Borrower hereby promises to, and
will, immediately on demand by any Bank or the Agent, pay or cause to be paid
to the Banks or the Agent, as the case may be, an amount equal to the full
amount of the Guaranteed Indebtedness then due. All such payments shall be in
the currency in which the Guaranteed Indebtedness is denominated.
9.8 Subrogation, Waivers, etc. Each Borrower hereby agrees that,
until such time as all of the Obligations shall have been finally paid in
full in cash and performed in full, all Commitments shall have terminated,
and this guarantee shall have been discontinued as to all Borrowers, no
payment made by or on account of any Borrower pursuant to this Section 9
shall entitle the other Borrower, by subrogation or otherwise, to any payment
by such Borrower or from or out of any property of such Borrower, and
neither of the Borrowers shall exercise any right or remedy against any
other Borrower or any property of the other Borrower by reason of any
performance by any Borrower of its obligations
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under this Section 9, including any claim or other rights which it may now or
hereafter acquire against the other Borrower that arise from the existence,
payment, performance or enforcement of the guarantee under this Section 9,
including any right of subrogation, reimbursement, exoneration, contribution,
indemnification, any right to participate in any claim or remedy of the
Banks or the Agent, as the case may be, against such Borrower or any
collateral now or hereafter pledged to the Banks, the Agent or any other
Person acting on behalf of the Banks by such Borrower, whether or not such
claim, remedy or right arises in equity, at law or under contract, directly
or indirectly, is for cash or other property or arises by set-off or in any
other manner (as payment or security on account of such claim or other
rights). If any amount shall be paid to any Borrower in violation of the
preceding sentence and the Obligations shall not then have been paid in full,
all Commitments shall not have terminated, such amount shall be deemed to have
been paid to such Borrower for the benefit of, and held in trust for the
benefit of, the Banks or the Agent, as applicable, and shall forthwith be
paid to the Banks or the Agent, as applicable. Each Borrower acknowledges
that it has received and will receive direct and indirect benefits from the
financing arrangements contemplated by this Agreement and the other Loan
Documents and that the forbearance set forth in this Section 9.8 is knowingly
granted in contemplation of such benefits.
9.9 Delay, etc. No delay on the part of any of the Banks or
either of the Agent in exercising any rights under this Section 9 or failure
to exercise the same shall operate as a waiver of such rights. No notice to
or demand on any Borrower shall be deemed to be a waiver of any obligation of
any Borrower or the right of the Banks or the Agent to take further action
without notice or demand as provided herein, nor in any event shall any
modification or waiver of the provisions of this Section 9 be effective
unless such modification or waiver is in writing and signed by the Banks, the
Agent and each Borrower. Any such waiver shall apply only to the specific
instance for which it is given.
ARTICLE X
MISCELLANEOUS
10.1 Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent with respect to
any departure by either Borrower therefrom, shall be effective unless the same
shall be in writing and signed by the Required Banks (or by the Agent at the
written request of the Required Banks) and the Borrowers and acknowledged by the
Agent, and then any such waiver or consent shall be effective only in the
specific instance and for the specific
65
purpose for which given; provided, however, that no such waiver, amendment, or
consent shall, unless in writing and signed by all the Banks and the Borrowers
and acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank (or
reinstate any Commitment terminated pursuant to Section 7.2);
(b) postpone or delay any date fixed by this Agreement or
any other Loan Document for any payment of principal, interest, fees or other
amounts due to the Banks (or any of them) hereunder or under any other Loan
Document;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or (subject to clause (ii) below) any fees or
other amounts payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the
Banks or any of them to take any action hereunder;
(e) release either Guarantor; or
(f) amend this Section, or Section 2.17, Article IX or any
provision herein providing for consent or other action by all Banks;
and, provided further, that (i) no amendment, waiver or consent shall, unless
in writing and signed by the Agent in addition to the Required Banks or all
the Banks, as the case may be, affect the rights or duties of the Agent under
this Agreement or any other Loan Document, and (ii) the Fee Letters may be
amended, or rights or privileges thereunder waived, in a writing executed by
the parties thereto.
10.2 Notices.
(a) All notices, requests, consents, approvals, waivers and
other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission, provided that any
matter transmitted by a Borrower by facsimile (i) shall be immediately
confirmed by a telephone call to the recipient at the number specified on
Schedule 10.2, and (ii) shall be followed promptly by delivery of a hard copy
original thereof) and mailed, faxed or delivered, to the address or facsimile
number specified for notices on Schedule 10.2; or, as directed to the Company
or the Agent, to such other address as shall be designated by such party in a
written notice to the other parties, and as directed to any other party, at
such other
66
address as shall be designated by such party in a written notice to the Company
and the Agent.
(b) All such notices, requests and communications shall,
when transmitted by overnight delivery, or faxed, be effective when delivered
for overnight (next-day) delivery, or transmitted in legible form by
facsimile machine, respectively, or if mailed, upon the third Business Day
after the date deposited into the U.S. mail, or if delivered, upon delivery;
except that notices pursuant to Article II or VIII shall not be effective
until actually received by the Agent.
(c) Any agreement of the Agent and the Banks herein to
receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrowers. The Agent and the Banks
shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by the Borrowers to give such notice and the Agent and the
Banks shall not have any liability to the Borrowers or other Person on
account of any action taken or not taken by the Agent or the Banks in
reliance upon such telephonic or facsimile notice. The obligation of the
Borrowers to repay the Loans shall not be affected in any way or to any
extent by any failure by the Agent and the Banks to receive written
confirmation of any telephonic or facsimile notice or the receipt by the
Agent and the Banks of a confirmation which is at variance with the terms
understood by the Agent and the Banks to be contained in the telephonic or
facsimile notice.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege hereunder
preclude any other or further exercise thereof or the exercise of any other
right, remedy, power or privilege.
10.4 Costs and Expenses. Each Borrower shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Agent) within
five Business Days after demand (subject to Section 4.1(g)) for all reasonable
costs and expenses incurred by BofA (including in its capacity as Agent) in
connection with the development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or modification to (in
each case, whether or not consummated), this Agreement, any Loan Document and
any other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby,
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including reasonable Attorney Costs incurred by BofA (including in its capacity
as Agent) with respect thereto; and
(b) pay or reimburse the Agent, the Arranger and each Bank
within five Business Days after demand (subject to Section 4.1(f)) for all
reasonable costs and expenses (including Attorney Costs) incurred by them in
connection with the enforcement, attempted enforcement, or preservation of any
rights or remedies under this Agreement or any other Loan Document during
the existence of an Event of Default or after acceleration of the Loans
(including in connection with any "workout" or restructuring regarding the
Loans, and including in any Insolvency Proceeding or appellate proceeding).
10.5 Borrower Indemnification. Whether or not the transactions
contemplated hereby are consummated, each Borrower shall indemnify, defend and
hold the Agent-Related Persons, and each Bank and each of its respective
officers, directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of the
Agent or replacement of any Bank) be imposed on, incurred by or asserted
against any such Person in any way relating to or arising out of this
Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with
respect to any investigation, litigation or proceeding (including any
insolvency proceeding or appellate proceeding) related to or arising out of
this Agreement or the Loans or the use of the proceeds thereof, or related to
any Offshore Currency Transactions entered into in connection herewith,
whether or not any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided, that the Company
shall have no obligation hereunder to any Indemnified Person with respect to
Indemnified Liabilities resulting from the gross negligence or willful
misconduct of such Indemnified Person. The agreements in this Section shall
survive payment of all other Obligations.
10.6 Payments Set Aside. To the extent that a Borrower makes a payment
to the Agent or the Banks, or the Agent or the Banks exercise their right of
set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Agent or such Bank in its discretion) to be repaid to a
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trustee, receiver or any other party, in connection with any Insolvency
Proceeding or otherwise, then (a) to the extent of such recovery the
obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such set-off had not occurred, and (b) each Bank severally agrees to
pay to the Agent upon demand its pro rata share of any amount so recovered
from or repaid by the Agent.
10.7 Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that neither Borrower may assign or
transfer any of its rights or obligations under this Agreement without the
prior written consent of the Agent and each Bank.
10.8 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of the Company at
all times other than during the existence of an Event of Default and the
Agent, which consents shall not be unreasonably withheld, at any time assign
and delegate to one or more Eligible Assignees (provided that no written
consent of the Company or the Agent shall be required in connection with any
assignment and delegation by a Bank to an Eligible Assignee that is an
Affiliate of such Bank) (each an "Assignee") all, or any ratable part of all,
of the Loans, the Commitments and the other rights and obligations of such
Bank hereunder, in a minimum amount of $5,000,000; provided, however, that
the Borrowers and the Agent may continue to deal solely and directly with
such Bank in connection with the interest so assigned to an Assignee until (i)
written notice of such assignment, together with payment instructions,
addresses and related information with respect to the Assignee, shall have
been given to the Borrowers and the Agent by such Bank and the Assignee;
(ii) such Bank and its Assignee shall have delivered to the Company and the
Agent an Assignment and Acceptance in the form of Exhibit E ("Assignment and
Acceptance") and (iii) the assignor Bank or Assignee has paid to the Agent a
processing fee in the amount of $3,000.
(b) From and after the date that the Agent notifies the
assignor Bank that it has received (and provided its consent with respect to)
an executed Assignment and Acceptance and payment of the above-referenced
processing fee, (i) the Assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, shall have the rights and
obligations of a Bank under the Loan Documents, and (ii) the assignor Bank
shall, to the extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its
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rights and be released from its obligations under the Loan Documents.
(c) Immediately upon each Assignee's making its processing
fee payment under the Assignment and Acceptance, this Agreement shall be
deemed to be amended to the extent, but only to the extent, necessary to
reflect the addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each Assignee shall
reduce such Commitments of the assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company (a
"Participant") participating interests in any Loans, the Commitment of that
Bank and the other interests of that Bank (the "Originating Bank") hereunder
and under the other Loan Documents; provided, however, that (i) the
Originating Bank's obligations under this Agreement shall remain unchanged,
(ii) the Originating Bank shall remain solely responsible for the performance
of such obligations, (iii) the Borrower and the Agent shall continue to deal
solely and directly with the Originating Bank in connection with the
Originating Bank's rights and obligations under this Agreement and the other
Loan Documents, and (iv) no Bank shall transfer or grant any participating
interest under which the Participant has rights to approve any amendment to,
or any consent or waiver with respect to, this Agreement or any other Loan
Document, except to the extent such amendment, consent or waiver would require
unanimous consent of the Banks as described in the first proviso to Section
10.1. In the case of any such participation, the Participant shall be
entitled to the benefit of Sections 3.1, 3.3 and 10.5 as though it were also
a Bank hereunder provided that all amounts payable by the Borrowers
hereunder shall be determined as if such Originating Bank had not sold such
participation. If amounts outstanding under this Agreement are due and
unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be
deemed to have the right of set-off in respect of its participating
interest in amounts owing under this Agreement to the same extent as if the
amount of its participating interest were owing directly to it as a Bank
under this Agreement.
(e) Notwithstanding any other provision in this Agreement,
any Bank may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement in favor of any
Federal Reserve Bank in accordance with Regulation A of the FRB or U.S.
Treasury Regulation 31 CFR Section 203.14, and such Federal Reserve Bank may
enforce such pledge or security interest in any manner permitted under
applicable law.
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10.9 Confidentiality. Each Bank agrees to take and to cause its
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all information identified as "confidential"
or "secret" by the Company and provided to it by the Company or any
Subsidiary, or by the Agent on such Company's or Subsidiary's behalf, under
this Agreement or any other Loan Document, and neither it nor any of its
Affiliates shall use any such information other than in connection with or in
enforcement of this Agreement and the other Loan Documents or in connection
with other business now or hereafter existing or contemplated with the Company
or any Subsidiary; except to the extent such information (i) was or becomes
generally available to the public other than as a result of disclosure by the
Bank, or (ii) was or becomes available on a non-confidential basis from a
source other than the Company, provided that such source is not bound by a
confidentiality agreement with the Company known to the Bank; provided,
however, that any Bank may disclose such information (A) at the request or
pursuant to any requirement of any Governmental Authority to which the Bank is
subject or in connection with an examination of such Bank by any such
authority; (B) pursuant to subpoena or other court process; (C) when required
to do so in accordance with the provisions of any applicable requirement of
law; (D) to the extent reasonably required in connection with any litigation
or proceeding to which the Agent, any Bank, or their respective Affiliates
may be party; (E) to the extent reasonably required in connection with the
exercise of any remedy hereunder or under any other Loan Document; (F) to
such Bank's independent auditors and other professional advisors; (G) to any
Participant or Assignee, actual or potential, provided that such Person agrees
in writing to keep such information confidential to the same extent required
of the Banks hereunder; (H) as to any Bank or its Affiliate, as expressly
permitted under the terms of any other document or agreement regarding
confidentiality to which the Company or any Subsidiary is party or is deemed
party with such Bank or such Affiliate; and (I) to its Affiliates.
10.10 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Bank is authorized at any time and from time to time,
without prior notice to either Borrower, any such notice being waived by each
Borrower to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at any
time held by, and other indebtedness at any time owing by, such Bank to or for
the credit or the account of each Borrower against any and all Obligations
owing to such Bank, now or hereafter existing, irrespective of whether or not
the Agent or such Bank shall have made demand under this Agreement or any
Loan Document and although such Obligations may be contingent or unmatured.
Each Bank agrees promptly to notify the Company and
71
the Agent after any such set-off and application made by such Bank;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application.
10.11 Notification of Addresses, Lending Offices, Etc. Each Bank shall
notify the Agent in writing of any changes in the address to which notices to
the Bank should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
10.12 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.13 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
10.14 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Borrowers, the Banks, the
Agent and the Agent-Related Persons, and their permitted successors and
assigns, and no other Person shall be a direct or indirect legal beneficiary
of, or have any direct or indirect cause of action or claim in connection
with, this Agreement or any of the other Loan Documents.
10.15 Governing Law and Jurisdiction.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF ILLINOIS; PROVIDED THAT THE AGENT
AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF ILLINOIS OR OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS,
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWERS, THE
AGENT AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE BORROWERS, THE
AGENT, AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION
OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
DOCUMENT RELATED
72
HERETO. THE BORROWERS, THE AGENT, AND THE BANKS EACH WAIVE PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER
MEANS PERMITTED BY ILLINOIS LAW.
10.16 Waiver of Jury Trial. THE BORROWERS, THE BANKS, AND THE AGENT
EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR
ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
THE BORROWERS, THE BANKS, AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR
CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT
TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS
OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.17 Judgment. If, for the purposes of obtaining judgment in any
court, it is necessary to convert a sum due hereunder or any other Loan
Document in one currency into another currency, the rate of exchange used
shall be that at which in accordance with normal banking procedures the Agent
could purchase the first currency with such other currency on the Business Day
preceding that on which final judgment is given. The obligation of the
Borrowers in respect of any such sum due from it to the Agent hereunder or under
the other Loan Documents shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is denominated in
accordance with the applicable provisions of this Agreement (the "Agreement
Currency"), be discharged only to the extent that on the Business Day following
receipt by the Agent of any sum adjudged to be so due in the Judgment Currency,
the Agent may in accordance with normal banking procedures purchase the
Agreement Currency with the Judgment Currency. If the amount of the Agreement
Currency so purchased is less than the sum originally due to the Agent in the
Agreement Currency, the Company agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Agent or the Person to whom
such obligation was owing against such loss. If the amount of the Agreement
currency so purchased is greater than the sum originally due to the Agent in
such currency, the Agent agrees to return the amount of any excess to the
Company (or to any other Person who may be entitled thereto under applicable
law).
73
10.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Banks and the Agent, and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
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Delivered at Chicago, Illinois as of the day and year first above
written.
APPLIED POWER INC.
By: /s/ Douglas R. Dorszynski
----------------------------
Title: Treasurer
---------
APPLIED POWER FINANCE S.A.
By: /s/ Douglas R. Dorszynski
-----------------------------
Title: Authorized Agent
--------------------------
S-1
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Agent
By: /s/ Matthew A. Gabel
----------------------------
Title: Vice President
-------------------------
S-2
BANK OF AMERICA ILLINOIS
By: /s/ M.H. Claggett
----------------------------
Title: Vice President
-------------------------
S-3
ABN AMRO BANK N.V.
By: /s/ R. Michiel Schwartz
----------------------------
Title: Vice President
-------------------------
By: /s/ David C. Sagers
----------------------------
Title: Vice President
-------------------------
S-4
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Richard T. Janders
----------------------------
Title: Assistant Vice President
-------------------------
S-5
HARRIS TRUST AND SAVINGS BANK
By: /s/ Andrew A. Peterson
----------------------------
Title: Vice President
-------------------------
S-6
SOCIETE GENERALE
By: /s/ Susan Hummel
------------------------------
Title: Assistant Vice President
---------------------------
By: /s/ Joseph Philbin
------------------------------
Title: Vice President Team Leader
--------------------------
S-7
THE SANWA BANK, LIMITED, CHICAGO BRANCH
By: /s/ Kenneth C. Eichwald
---------------------------------
Title: Vice President and Manager
------------------------------
S-8
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Tina S. Marshall
---------------------------------
Title: Managing Director
------------------------------
S-9
BANK ONE, MILWAUKEE, N.A.
By: /s/ Ronald J. Carey
----------------------------
Title: Vice President
-------------------------
S-10