Exhibit 4.6
(1997 10-K)
MULTICURRENCY CREDIT AGREEMENT
dated as of October 23, 1997
among
APPLIED POWER INC.,
APPLIED POWER EUROPE S.A.,
VARIOUS FINANCIAL INSTITUTIONS,
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Agent
Arranged by
BancAmerica Xxxxxxxxx Xxxxxxxx
TABLE OF CONTENTS
Page
ARTICLE I CERTAIN DEFINITIONS AND INTERPRETATION 1
1.1 Defined Terms 1
1.2 Other Interpretive Provisions 20
1.3 Accounting Principles 21
1.4 Currency Equivalents Generally 21
ARTICLE II THE CREDITS 22
2.1 Amounts and Terms of Commitments 22
2.2 Loan Accounts 22
2.3 Procedure for Committed Borrowing 23
2.4 Conversion and Continuation Elections for
Committed Borrowings 24
2.5 Utilization of Revolving Commitments in Offshore
Currencies. 26
2.6 Bid Borrowings 27
2.7 Procedure for Bid Borrowings 28
2.8 Reduction of Commitments 32
2.9 Prepayments 32
2.10 Currency Exchange Fluctuations 33
2.11 Repayment 33
2.12 Interest 33
2.13 Fees 34
2.14 Computation of Fees and Interest 35
2.15 Payments by the Borrower 35
2.16 Payments by the Banks to the Agent 36
2.17 Sharing of Payments, Etc. 37
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY 38
3.1 Taxes. 38
3.2 Illegality 39
3.3 Increased Costs and Reduction of Return 40
3.4 Funding Losses 41
3.5 Inability to Determine Rates 41
3.6 Certificates of Banks 42
3.7 Substitution of Banks 42
3.8 Survival 42
ARTICLE IV CONDITIONS PRECEDENT 42
4.1 Conditions of Initial Loans 42
4.2 Conditions to All Borrowings 44
(i)
ARTICLE V REPRESENTATIONS AND WARRANTIES 44
5.1 Organization, etc 44
5.2 Authorization; No Conflict 45
5.3 Validity and Binding Nature 45
5.4 Financial Statements 45
5.5 No Material Adverse Change 47
5.6 Litigation and Contingent Liabilities 47
5.7 Liens 47
5.8 Subsidiaries 47
5.9 Pension and Welfare Plans 48
5.10 Regulated Industry 48
5.11 Regulations G, U and X 48
5.12 Taxes 48
5.13 Environmental and Safety Matters 49
5.14 Compliance with Law 49
5.15 Information 50
5.16 Ownership of Shares 50
5.17 Ownership of Properties 50
5.18 Patents, Trademarks, etc 50
5.19 Insurance 50
5.20 Versa Merger Agreement 50
5.21 Solvency 51
ARTICLE VI COVENANTS 51
6.1 Reports, Certificates and Other Information 51
6.2 Books, Records and Inspections 53
6.3 Insurance 53
6.4 Compliance with Law; Payment of Taxes and
Liabilities 53
6.5 Maintenance of Existence, etc. 53
6.6 Financial Ratios and Restrictions 54
6.7 Mergers, Consolidations, Purchases
and Sales 54
6.8 Commercial Paper Lines 55
6.9 Liens 55
6.10 Use of Proceeds 56
6.11 Maintenance of Property 57
6.12 Employee Benefit Plans 57
6.13 Business Activities 57
6.14 Environmental Matters 57
6.15 Unconditional Purchase Obligations 58
6.16 Inconsistent Agreements 58
6.17 Transactions with Affiliates 58
6.18 The Company's and Subsidiaries' Stock 58
6.19 Negative Pledges; Subsidiary Payments 58
6.20 Limitation on Debt 59
6.21 Contingent Obligations 59
(ii)
ARTICLE VII EVENTS OF DEFAULT AND THEIR EFFECT 59
7.1 Events of Default 59
7.2 Effect of Event of Default 61
ARTICLE VIII THE AGENT 61
8.1 Appointment and Authorization; Agent 62
8.2 Delegation of Duties 62
8.3 Liability of Agent 62
8.4 Reliance by Agent 63
8.5 Notice of Default 63
8.6 Credit Decision 64
8.7 Indemnification of Agent 64
8.8 BofA in Individual Capacity 65
8.9 Successor Agent 65
8.10 Withholding Tax 66
ARTICLE IX GUARANTEE 67
9.1 Guarantee from the Company 67
9.2 Expenses 67
9.3 Waivers 67
9.4 No Impairment 68
9.5 Waiver of Resort 68
9.6 Reinstatement 68
9.7 Payment 69
9.8 Subrogation, Waivers, etc. 69
9.9 Delay, etc 69
ARTICLE X MISCELLANEOUS 70
10.1 Amendments and Waivers 70
10.2 Notices 71
10.3 No Waiver; Cumulative Remedies 71
10.4 Costs and Expenses 72
10.5 Borrower Indemnification 72
10.6 Payments Set Aside 73
10.7 Successors and Assigns 73
10.8 Assignments, Participations, etc. 73
10.9 Confidentiality 75
10.10 Set-off 76
10.11 Notification of Addresses, Lending
Offices, Etc. 76
10.12 Counterparts 76
10.13 Severability 76
10.14 No Third Parties Benefited 76
10.15 Governing Law and Jurisdiction 77
(iii)
10.16 Waiver of Jury Trial 77
10.17 Judgment 77
10.18 Entire Agreement 78
(iv)
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-1 Form of Legal Opinions of Borrowers' and Guarantor's U.S.
Counsel
Exhibit D-2 Form of Legal Opinion of APSA's French 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
Exhibit K Form of Guaranty
(v)
MULTICURRENCY CREDIT AGREEMENT
------------------------------
THIS MULTICURRENCY CREDIT AGREEMENT (this "Agreement") dated as of
October 23, 1997 is among APPLIED POWER INC., a Wisconsin corporation (the
"Company"), APPLIED POWER EUROPE S.A., a French corporation ("APSA"), the
financial institutions listed on the signature pages hereof (together with
their respective successors and assigns, collectively the "Banks" and
individually each a "Bank"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION as agent for the Banks.
WHEREAS, the Company, APSA, certain financial institutions and BofA,
as Agent, are parties to a Multicurrency Credit Agreement dated August 22,
1995 as amended by that First Amendment Agreement dated as of August 29, 1996
(the "Existing Credit Agreement");
WHEREAS, the Company has acquired the capital stock of Versa
Technologies, Inc. pursuant to an Agreement and Plan of Merger dated September
2, 1997;
WHEREAS, to fund the acquisition of Versa Technologies, Inc. in part,
the Company has entered into a Credit Agreement dated as of October 3, 1997
with certain financial institutions and BofA as Agent (the "Bridge Credit
Agreement");
WHEREAS, the Company and APSA wish to enter into this Credit Agreement
for the purpose of repaying the indebtedness under the Existing Credit
Agreement and the Bridge Credit Agreement and to provide for working capital,
capital expenditures and other general corporate purposes;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE II
CERTAIN DEFINITIONS AND INTERPRETATION
--------------------------------------
II.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.
"Acquisition" means any transaction or series of
related transactions for the purpose of or resulting directly or indirectly, in
(a) the acquisition of all or substantially all of the assets of a Person, or of
any business or division of a Person, (b) the acquisition of in excess of 50% of
the capital stock, partnership interests, membership interests or equity of any
Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger
or consolidation or any other combination with another Person (other than a
Person that is a Subsidiary) provided that the Company or the Subsidiary is the
surviving entity.
"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 in its capacity as Agent 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 10.2 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
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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. The Applicable Margin as of the Closing Date shall
be 0.525%.
"Applicable Non-Use Fee Rate" means the rate set forth opposite
"Non-Use Fee" on the Pricing Grid for the applicable Pricing Level. The
Applicable Non-Use Fee Rate as of the Closing Date shall be 0.175%.
"APSA" has the meaning specified in the Preamble.
"Arranger" means BancAmerica Xxxxxxxxx Xxxxxxxx (formerly known as
BancAmerica 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).
"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)
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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.
"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 a Bank (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.
"Bridge Credit Agreement" has the meaning specified in the recitals.
"Business Day" means any day other than a Saturday,
4
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.
"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
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" has the same meaning specified in the Preamble.
5
"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 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
6
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.
"Debt to EBITDA Ratio" means as at the end of any Fiscal Quarter, the
ratio of (a) Funded Debt as at such date to (b) EBITDA for the four Fiscal
Quarter period then ending.
"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).
"Deutsche Xxxx" means lawful money of the Federal Republic of Germany.
"Disclosure Schedule" means the Disclosure Schedule attached hereto as
Schedule 1.1.
"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
7
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.
"EBITDA" means, for any Computation Period the sum of (a) Consolidated
Net Income for such period, plus (b) the aggregate amount deducted with
respect to federal, state, local and foreign income taxes in determining such
Consolidated Net Income, plus (c) Consolidated Interest Expense for such
period; plus (d) depreciation and amortization; provided, however, that if the
Company or any of its Subsidiaries shall have made an Acquisition during a
Computation Period, EBITDA shall be calculated as if the Acquisition had been
made on the first day of such Computation Period.
"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.
8
"Eurodollar Reserve Percentage" has the meaning specified in the
definition of "Offshore Rate".
"Event of Default" means any of the events described in Section 7.1.
"Existing Credit Agreement" has the meaning specified in the recitals.
"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,
9
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
10
profession), which except as provided in Section 1.3 are 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.
"Guarantor" means Versa, as guarantor pursuant to the Guaranty.
"Guaranty" means the Guaranty of the Guarantor in substantially the
form of Exhibit K.
"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 which are
unacceptable to the Required Banks have 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
11
the Company.
"Indemnified Liabilities" has the meaning specified in Section 10.5.
"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
12
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 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.
"Irish Punts" means the lawful currency of the Republic of Ireland.
"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
13
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.
"Loan" means an extension of credit by a Bank to the Company or APSA
under Article II, and may be a Committed Loan or (for the Company only) a Bid
Loan.
"Loan Documents" means this Agreement, any Notes, the Fee Letter, the
Guaranty 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, $5,000,000 or any multiple of $1,000,000 in
excess thereof, and (b) in the case of Offshore Rate Loans, the Dollar
Equivalent amount of $5,000,000 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 or
APSA 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
14
arising.
"Offshore Currency" means Guilders, Sterling, Deutsche Marks, Yen,
French Francs, Italian Lira, Swiss Francs and Irish Punts.
"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 = LIBOR
------------------------------------
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
"LIBOR" means the rate of interest per annum determined by the Agent
to be the arithmetic mean (rounded upward to the next 1/16th of 1%) of the
rates of interest per annum notified to the Agent by BofA as the rate of
interest at which deposits in Dollars or other Applicable Currencies in the
approximate amount of the amount of the Loan to be made or continued as, or
converted into, an Offshore Rate Loan by BofA and having a maturity comparable
to such Interest Period would be offered to major banks in the London
interbank market at their request at approximately 11:00 a.m. (London 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.
15
"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.
"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 $80,000,000.
"Person" means any natural person, corporation, partnership, trust,
limited liability company, incorporated or unincorporated association, joint
venture, joint stock company, government (or an agency or political
subdivision
16
thereof) or other entity, whether acting in an individual, fiduciary or other
capacity.
"Pricing Grid" means the Pricing Grid set forth on Schedule 1.2.
"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,
17
as the case may be.
"Solvent" means, as to any Person at any time, that (a) the fair value
of the property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section
101(31) of the Bankruptcy Code and, in the alternative, for purposes of the
Illinois Uniform Fraudulent Transfer Act; (b) the present fair saleable value
of the property of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured; (c) such Person is able to realize upon its
property and pay its debts and other liabilities (including disputed,
contingent and unliquidated liabilities) as they mature in the normal course
of business; (d) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature; and (e) such Person is not engaged in business
or a transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute unreasonably small capital.
"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 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
18
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 xxxx 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.
"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) October 22, 2002,
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
19
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.
"Versa" means Versa Technologies, Inc., a Delaware corporation.
"Versa Acquisition" means the acquisition by the Company of the
capital stock of Versa pursuant to the Versa Merger Agreement.
"Versa Merger Agreement" means the Agreement and Plan of Merger dated
September 2, 1997 by and among the Company, TVPA Corp. and Versa.
"Welfare Plan" means a "welfare plan", as such term is defined in
section 3(1) of ERISA.
"Yen" means lawful money of Japan.
II.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.
(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."
20
(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.
II.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 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.
II.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.
21
ARTICLE III
THE CREDITS
III.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) $80,000,000 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.
III.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
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.
III.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 8:30 a.m. (San
Francisco time) (i) three Business Days prior to the requested Borrowing Date,
in the case of Offshore Rate Loans denominated in Dollars; and (ii) four
22
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 8:30 a.m. (San Francisco time) four 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 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 or APSA, as
the case may be, 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
23
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.
III.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 payment, prepayment, or
conversion of part thereof to be less than $5,000,000, 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 8:30 a.m.
(San Francisco time) at least (i) three 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) four Business
Days in
24
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 fourth 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 .
(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.
25
(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.
III.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 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
26
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
decline such request in its sole discretion; provided that no such Loan shall
be made unless all the Banks consent. The Agent will promptly notify the
Borrowers of the acceptance or rejection of any such request and, if accepted,
the time requirements for requesting Borrowings in such Agreed Alternative
Currency.
III.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
27
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.
III.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 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 BofA
(or any Affiliate of BofA) in the capacity of a Bank may be submitted, and
28
may only be submitted, if BofA 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:
(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
29
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;
(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
30
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 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.
III.8 Reduction of Commitments. (a) 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
31
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.
(b) Mandatory Reduction of Commitments. If as of August 31, 2000,
the Debt to EBITDA Ratio is more than 2.0 to 1.0, the aggregate Commitments
shall be permanently reduced by the amount of $50,000,000. If as of August
31, 2001, the Debt to EBITDA Ratio is more than 2.0 to 1.0, the aggregate
Commitments shall be permanently reduced by $50,000,000. Upon any such
reduction, any outstanding Loans in excess of the reduced Commitments shall be
repaid immediately. Any reduction of the Commitments shall be applied to each
Bank's Commitment according to its Pro Rata Share.
(c) Issuance of Debt. If at the time of the issuance of any Debt
(in excess of $20,000,000 in the aggregate over the amount of Debt outstanding
at the end of the prior Fiscal Year) after the date hereof the Debt to EBITDA
Ratio as of the end of the last Fiscal Quarter shall have been greater than
2.0 to 1.0, the Commitments shall be permanently reduced by the amount of the
net proceeds of such Debt. Any reduction of the Commitments shall be applied
to each Bank according to its Pro Rata Share. Upon any such reduction, any
outstanding Loans in excess of the reduced Commitments shall be repaid
immediately.
III.9 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 (i) 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) three 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 $5,000,000 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.
III.10 Currency Exchange Fluctuations. If on any
32
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 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.
III.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.
III.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
33
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.
(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).
III.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
September 24, 1997.
(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, 1997 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
34
due and payable quarterly in arrears on the last Business Day of each
February, May, August and November commencing on November 30, 1997 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)
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.
III.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.
III.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
35
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.
(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.
III.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
36
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 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.
III.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 IV
TAXES, YIELD PROTECTION AND ILLEGALITY
--------------------------------------
37
IV.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.
(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
38
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 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.
IV.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
39
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.
IV.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 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.
IV.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;
40
(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 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.
IV.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.
IV.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
41
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 due hereunder, use averaging and attribution methods
which are reasonable and which cover all loans similar to the Loans made by
such Bank.
IV.7 Substitution of Banks. Upon the receipt by 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).
IV.8 Survival. The agreements and obligations of the Borrowers in
this Article III shall survive the payment of all other Obligations.
ARTICLE V
CONDITIONS PRECEDENT
--------------------
V.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) Guaranty. The Guaranty executed by the Guarantor.
(d) Resolutions. Certified copies of resolutions of
42
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.
(e) 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 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).
(f) Resolutions - Guarantor. Certified copies of resolutions of the
Board of Directors of the Guarantor authorizing or ratifying the execution,
delivery and performance by the Guarantor of the Guaranty.
(g) Incumbency and Signatures - Guarantor. A certificate of the
Secretary or an Assistant Secretary of the Guarantor certifying the names of
the officer or officers of the Guarantor authorized to sign the Guaranty,
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).
(h) Opinion of Counsel for the Company. The opinion of Xxxxxxx &
Xxxxx, counsel for the Company and the Guarantor, in the form of Exhibit D-1
and Salans Xxxxxxxxx & Heilbronn, counsel for APSA, in the form of Exhibit
D-2.
(i) Opinion of Counsel for the Agent. The opinion of Xxxxx, Xxxxx &
Xxxxx, counsel for the Agent, in the form of Exhibit G.
(j) Termination of Existing Credit Agreement and Bridge Credit
Agreement. Evidence, reasonably satisfactory to the Agent, that all
"Commitments" under and as defined in the Existing Credit Agreement and the
Bridge Credit Agreement 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.
(k) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Bank may request.
V.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
43
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.
ARTICLE VI
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:
VI.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.
VI.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 each Borrower or the Guarantor of its
obligations
44
under this Agreement and the other Loan Documents to which it is a party are
within each of the Borrower's or the Guarantor'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 Guarantor or
of any agreement, instrument, order or decree that is binding upon such
Borrower or any Subsidiary.
VI.3 Validity and Binding Nature. This Agreement and each other Loan
Document to which it is a party 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. The Guaranty constitutes the legal, valid and binding obligation of
the Guarantor enforceable against the Guarantor in accordance with its 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.
VI.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 balance sheet at August 31, 1996 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, LLP (ii) the unaudited consolidated balance
sheet dated May 31, 1997 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, 1996
and related consolidated statements of earnings and shareholders equity of
APSA and its Subsidiaries and (iv) the unaudited consolidated balance sheet
dated May 31, 1997 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
45
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.
(c) To the best of the Company's knowledge, all balance sheets, all
statements of earnings, stockholders' equity and cash flow, and all other
financial information furnished by or on behalf of Versa to the Agent and the
Banks, including (i) the audited consolidated balance sheet at March 31, 1997
and the related audited consolidated statements of earnings, stockholders'
equity and cash flow, for the fiscal year then ended, of Versa and its
Subsidiaries, certified by Deloitte and Touche LLP and (ii) the unaudited
consolidated balance sheet dated June 30, 1997 and the related unaudited
consolidated statements of earnings and cash flow, for the fiscal quarter then
ended, of Versa and its Subsidiaries, as appearing in the report of Versa on
Form 10-Q for such fiscal quarter filed by Versa with the U.S. Securities and
Exchange Commission, 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 Versa and its
Subsidiaries, as at the dates thereof and the results of their operations for
the periods then ended. To the best of the Company's knowledge, Versa 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.
(d) Pro Forma Financial Statement. The pro forma financial
statement and compliance certificate of the Company and its Subsidiaries as of
August 31, 1997, giving effect to the
46
Versa Acquisition fairly presents the financial condition of the Company and
its Subsidiaries as of the date thereof.
VI.5 No Material Adverse Change. No event has occurred or condition
has arisen that has had or is reasonably likely to have a Material Adverse
Effect since August 31, 1996 with respect to the Company and its Subsidiaries
or March 31, 1997 with respect to Versa and its Subsidiaries.
VI.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 the Company or any Subsidiary that would, if
adversely determined, be reasonably likely to have a Material Adverse Effect,
except as set forth in Item 5.6 of the Disclosure Schedule. Other than any
liability incident to such litigation or proceedings, neither the Company nor
any Subsidiary has any contingent liabilities, except as provided for or
disclosed in the financial statements referred to in Section 5.4, which would
if adversely determined be reasonably likely to have a Material Adverse
Effect.
VI.7 Liens. None of the assets of the Company or any Subsidiary is
subject to any Lien, except as permitted by Section 6.9.
VI.8 Subsidiaries. Item 5.8 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.
VI.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 L of the
Company's 1996 annual report, neither the Borrowers nor any of the
Subsidiaries have any 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
47
I of ERISA.
VI.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.
VI.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 or ultimate, of purchasing or carrying any Margin Stock or
maintaining or extending credit to others for such purpose.
VI.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.
VI.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, 3 and 15 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
48
Schedule, and, except as disclosed in items 2, 3 and 15 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, 3 and 15 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 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, 3 and 15 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.
VI.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.
VI.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.
VI.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.
VI.17 Ownership of Properties. Each of the Company and each
Subsidiary owns good and marketable title to or holds
49
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.
VI.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 xxxx 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 Material
Adverse Effect, except as may be disclosed in Item 5.18 of the Disclosure
Schedule.
VI.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.
VI.20 Versa Merger Agreement. The Versa Acquisition has been
consummated pursuant to the terms of the Versa Merger Agreement. The
representations and warranties contained in the Versa Merger Agreement (a true
and correct copy of which Versa Merger Agreement, together with all schedules
and exhibits thereto, has been delivered to the Banks), are true and correct
in all respects except where the failure to be so true and correct could not
reasonably be expected to have a Material Adverse Effect. As of the date of
the Versa Acquisition, (i) the Company had taken all necessary corporate
actions to authorize the Versa Acquisition; and (ii) no representation made by
Versa or the Company in any notices or filings with the shareholders of the
Company or of Versa, with the SEC or any applicable state securities
commissions or with any governmental authority, including, without limitation,
any representations concerning any agreement with, or financing provided by,
the Banks, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order to
make the statements made therein, in light of the circumstances under which
they are made, not misleading as of the time when made or delivered. Any
representation or warranty by the Company under this Section 5.20 as to the
representations and
50
warranties of Versa in the Versa Merger Agreement is made to the best of
the knowledge of the Company.
VI.21 Solvency. Each of the Borrowers and the Guarantor is Solvent.
ARTICLE VII
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:
VII.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), 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
51
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 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.
52
VII.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.
VII.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.
VII.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.
VII.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).
VII.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 $170,000,000
plus 50% of the proceeds (net of issuance costs and underwriters discounts) of
any equity offering of the
53
Company or any Subsidiary after the date hereof and (ii) Shareholders Equity
for APSA to be less than $1.
(b) Fixed Charge Coverage Ratio. Not permit the Fixed Charge
Coverage Ratio of the Company and its Subsidiaries to be less than 1.75:1.0.
(c) Debt to Capital Ratio. Not permit the Debt to Capital Ratio of
the Company and its Subsidiaries to exceed 58% at any time prior to November
29, 2000 or 56% at any time thereafter.
VII.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 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
54
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 $15,000,000 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.
VII.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 or other availability backing up such commercial paper.
VII.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 6.9 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 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
55
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.
VII.10 Use of Proceeds. Use the proceeds of the Loans to repay its
Debt under the Bridge Credit Agreement and the Existing Credit Agreement and
to provide for working capital, capital expenditures and for other 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.
VII.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).
VII.12 Employee Benefit Plans. Maintain, and cause each Subsidiary
to maintain, each Pension Plan in compliance in all
56
material respects with all applicable Requirements of Law and regulations.
VII.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.
VII.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.
VII.15 Unconditional Purchase Obligations. Not, and not permit any
Subsidiary to, enter into or be a party to any
57
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.
VII.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.
VII.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 6.17 shall prohibit
any transaction expressly permitted by Section 6.7.
VII.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 Section 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.
VII.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.
VII.20 Limitation on Subsidiary Debt. The Company shall not permit
the Subsidiaries to create, incur, assume, suffer to exist, or otherwise
become or remain directly or indirectly liable with respect to, any Debt
(other than Debt of APSA under this Agreement or Debt of a Subsidiary to the
Company) in excess
58
at any time outstanding of 22% of the net worth of the Company and the
Subsidiaries on a consolidated basis.
ARTICLE VIII
EVENTS OF DEFAULT AND THEIR EFFECT
----------------------------------
VIII.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 representation or warranty made by either
Borrower or the Guarantor herein or in any Loan Document 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 or the Guarantor 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
59
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 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, 6.19 or 6.20.
(f) Non-Compliance with Other Provisions of this Agreement. Failure
by the Borrowers or the Guarantor to comply with or to perform any provision
of this Agreement or any other Loan Document (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) Guaranty. The obligations of the Company under
60
Article IX or the Guarantor under the Guaranty shall cease to be in full force
and effect or the Company or the Guarantor shall contest in any manner the
validity, binding nature or enforceability of Article IX or the Guaranty.
VIII.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 IX
THE AGENT
---------
IX.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
61
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, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
IX.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.
IX.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.
IX.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
62
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 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.
IX.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.
IX.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
63
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 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.
IX.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 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.
IX.8 BofA in Individual Capacity. BofA 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, BofA or its Affiliates may receive information
regarding the Company or its
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Affiliates (including information that may be subject to confidentiality
obligations in favor of the Company or such Subsidiary) and acknowledge that
neither BofA nor the Agent shall be under any obligation to provide such
information to them. With respect to its Loans, BofA shall have the same
rights and powers under this Agreement as any other Bank and may exercise the
same as though BofA were not the Agent.
IX.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.
IX.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
65
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
(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,
66
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
Banks under this Section 8.10(e) shall survive the payment of all Obligations
and the resignation or replacement of the Agent.
ARTICLE X
GUARANTEE
---------
X.1 Guarantee from the Company. In order to induce the Banks to
agree to make Loans to APSA under this Agreement, the Company 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 of APSA (the "Guaranteed Indebtedness").
X.2 Expenses. The Company 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
rights under or in connection with this Article IX.
X.3 Waivers. The Company 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 Article IX.
The Company hereby waives (a) presentation to, demand of payment from, and
protest and notice of protest 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.
X.4 No Impairment. The obligations of the Company under this Article
IX shall not be impaired by reason of any claim or waiver, release, surrender
or compromise with respect to APSA, 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
APSA. The obligations of the Company hereunder with respect to its guaranty
of the obligations of APSA hereunder shall not be impaired by (a) any lack of
validity or enforceability of this Agreement or any other Loan Document with
respect to APSA, (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 APSA or any
other Person hereunder or under the other Loan Documents or with respect to
this Agreement or the other Loan Documents, (c) any
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extension or renewal, in whole or in part, of this Agreement or any other Loan
Documents, (d) any 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 APSA or any other Person, or (i) any other act or
omission which may or might in any manner vary the risk of APSA, or which
would otherwise operate as a discharge of or other defense available to APSA,
as a matter of law.
X.5 Waiver of Resort. The Company 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 APSA or any of its Subsidiaries.
X.6 Reinstatement. The Company agrees that this Article IX 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 APSA or any other Person.
X.7 Payment. Upon the failure of APSA to pay any of the Guaranteed
Indebtedness when and as the same shall become due, whether at maturity, by
acceleration or otherwise, the Company 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.
X.8 Subrogation, Waivers, etc. The Company 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, no payment made by or on account of
the Company pursuant to this Article IX shall entitle the Company, by
subrogation or otherwise, to any payment by APSA or from or out of any
property of APSA, and the Company shall not exercise any right or remedy
against APSA or any property of APSA by reason of any performance by the
Company of its obligations under this Article IX, including any claim or other
rights which it may now or hereafter acquire against APSA that arise from the
existence,
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payment, performance or enforcement of the guarantee under this Article IX,
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 APSA or any collateral now or
hereafter pledged to the Banks, the Agent or any other Person acting on behalf
of the Banks by APSA, 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 the
Company 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 the Company 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. The
Company 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.
X.9 Delay, etc. No delay on the part of any of the Banks or the
Agent in exercising any rights under this Article IX or failure to exercise
the same shall operate as a waiver of such rights. No notice to or demand on
the Company 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.
ARTICLE XI
MISCELLANEOUS
-------------
XI.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 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
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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 the Guarantor;
(f) release the Company from any of its obligations under Article IV;
or
(g) amend this Section or the definition of "Required Banks" , 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.
XI.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 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
70
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.
XI.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.
XI.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 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, 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 for all reasonable
71
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).
XI.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.
XI.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
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
72
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.
XI.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.
XI.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 the lesser of (i) $5,000,000 or (ii)
the full amount of the Loans, the Commitments and the other rights and
obligations of such Bank; 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
rights and be released from its obligations under the Loan Documents.
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(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 Β§203.14, and such Federal Reserve Bank may enforce such
pledge or security interest in any manner permitted under applicable law.
XI.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
74
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.
XI.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 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.
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XI.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.
XI.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.
XI.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.
XI.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.
XI.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 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.
76
XI.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.
XI.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).
XI.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
77
supersedes all prior or contemporaneous agreements and understandings of such
Persons, verbal or written, relating to the subject matter hereof and thereof.
78
Delivered at Chicago, Illinois as of the day and year first above written.
APPLIED POWER INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------
Title: Vice President and Chief
------------------------
Financial Officer
------------------------
APPLIED POWER EUROPE S.A.
By: /s/ Xxxxxx X. Xxxxxxxxxx
---------------------------
Title: Authorized Representative
--------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Agent
By: /s/ X.X. Xxxxxxxx
----------------------
Title: Vice President
-------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By: /s/ X.X. Xxxxxxxx
----------------------
Title: Vice President
-------------------
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxxx Xxxx
-------------------------
Title: Senior Vice President
-----------------------
FIRST UNION NATIONAL BANK
By: /s/ V.W. Nuellum
---------------------
Title: Vice President
------------------
SOCIETE GENERALE, CHICAGO BRANCH
By: /s/ Xxxxxx X. Xxxxxxx
------------------------
Title: Vice President
---------------------
PNC BANK, NATIONAL ASSOCIATION
By: /s/ X.X. Xxxxxx
-------------------
Title: Vice President
----------------
THE BANK OF TOKYO-MITSUBISHI LTD.
CHICAGO BRANCH
By: /s/ Xxxxxx Xxxxxxxx
----------------------------
Title: Deputy General Manager
------------------------
BANK ONE, WISCONSIN
By: /s/ Xxxxxx Xxxxx
---------------------
Title: Vice President
------------------
BANKBOSTON, N.A.
By: /s/ Xxxxxx X. XxxXxxxxxx
--------------------------
Title: Vice President
-----------------------
FIRST BANK NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxx
-------------------
Title: Vice President
---------------
THE FUJI BANK, LIMITED
By: /s/ Tetsuo Kamatsu
-------------------------
Title: Joint General Manager
----------------------
XXXXXX TRUST AND SAVINGS BANK
By: /s/ Xxxxxx Xxxxxxxx
----------------------
Title: Vice President
--------------------
M&I XXXXXXXX & XXXXXX BANK
By: /s/ Xxxxx X. Xxxxxx
----------------------
Title: Vice President
-------------------
By: /s/ Xxxx Xxxxx
----------------------
Title: Senior Vice President
----------------------
NATIONSBANK, N.A.
By: /s/ Xxxx Xxxxx Xxxxx
----------------------
Title: Vice President
-------------------
THE SANWA BANK LIMITED,
CHICAGO BRANCH
By: /s/ Xxxxxx X. Xxxxxx
----------------------
Title: Vice President
-------------------
SCHEDULE 1.1
Disclosure Schedule
SCHEDULE 1.2
Pricing Grid
--------------------------------------------------------------------------------------------------------------------
Pricing Pricing Pricing Pricing Pricing Pricing
Level I Level II Level III Level IV Level V Level VI
--------------------------------------------------------------------------------------------------------------------
Debt to LESS THAN 30% GREATER THAN OR GREATER THAN OR GREATER THAN GREATER THAN OR GREATER THAN
Capital EQUAL TO 30% BUT EQUAL TO 40% BUT OR EQUAL TO EQUAL TO 50% OR EQUAL TO
Ratio LESS THAN 40% LESS THAN 45% 45% BUT LESS BUT LESS THAN 55%
THAN 50% 55%
--------------------------------------------------------------------------------------------------------------------
Offshore 0.275% 0.350% 0.425% 0.475% 0.525% 0.675%
Margin
--------------------------------------------------------------------------------------------------------------------
Non-Use Fee .100% 0.125% 0.150% 0.175% 0.175% 0.225%
Rate
--------------------------------------------------------------------------------------------------------------------
SCHEDULE 2.1
Commitments and
Pro Rata Shares
Bank Commitment Pro Rata Share
---- ---------- --------------
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION $ 34,125,000 9.75%
THE FIRST NATIONAL BANK
OF CHICAGO $ 29,750,000 8.50%
FIRST UNION NATIONAL BANK $ 29,750,000 8.50%
SOCIETE GENERALE, CHICAGO
BRANCH $ 29,750,000 8.50%
PNC BANK, NATIONAL
ASSOCIATION $ 29,750,000 8.50%
THE BANK OF TOKYO-MITSUBISHI
LTD. CHICAGO BRANCH $ 21,875,000 6.25%
BANK ONE, WISCONSIN $ 21,875,000 6.25%
BANKBOSTON, N.A. $ 21,875,000 6.25%
FIRST BANK NATIONAL
ASSOCIATION $ 21,875,000 6.25%
THE FUJI BANK,LIMITED $ 21,875,000 6.25%
XXXXXX TRUST & SAVINGS BANK $ 21,875,000 6.25%
M&I XXXXXXXX & XXXXXX BANK $ 21,875,000 6.25%
NATIONSBANK, N.A. $ 21,875,000 6.25%
THE SANWA BANK LIMITED,
CHICAGO BRANCH $ 21,875,000 6.25%
------------ ------
TOTAL $350,000,000 100.00%
1
SCHEDULE 10.2
Offshore and Domestic Lending Offices,
Addresses for Notices
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
------------------------------
As Agent
Bank of America National Trust
and Savings Association
Agency Management Services #5596
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of
Conversion/Continuation):
Bank of America National Trust and Savings Association
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: X.X. Xxxxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
AGENT'S PAYMENT OFFICE
----------------------
Bank of America National Trust
and Savings Association
Agency Management Services #5596
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
ABA No. 000-000-000
For Credit to Account No.: 12336-14489
Attn: Xxxxxxxxx Xxxx
Ref: Applied Power Inc.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
------------------------------
As a Bank
Domestic and Offshore Lending Office:
Bank of America National Trust
and Savings Association
000 Xxxx Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of
Conversion/Continuation):
Bank of America National Trust
and Savings Association
000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: X.X. Xxxxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
2
The First National Bank of Chicago
as a Bank
----------------------------------
Domestic and Offshore Lending Office:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The First National Bank of Chicago
London Branch
0 Xxxxxx Xxxxxx
Xxxxxx
XX0 0XX
Attention: Dot X'Xxxxxxxx
Telephone: (00 000) 000-0000
Facsimile: (00 000) 000-0000
Notices (other than Borrowing Notices and Notices
of Conversion/Continuation):
The First National Bank of Chicago
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
3
First Union National Bank
-------------------------
as a Bank
Domestic and Offshore Lending Office:
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices
of Conversion/Continuation):
First Union National Bank
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Societe Generale, Chicago Branch
--------------------------------
as a Bank
Domestic and Offshore Lending Office:
000 X. Xxxxxxx Xx.
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices
of Conversion/Continuation):
Societe Generale, Chicago Branch
000 X. Xxxxxxx Xx.
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
4
PNC Bank, National Association
------------------------------
as a Bank
Domestic and Offshore Lending Office:
PNC Bank, National Association
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Notices (other than Borrowing Notices and Notices
of Conversion/Continuation):
PNC Bank, National Association
000 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx/Xxxx Xxxxxxx
Telephone: (000) 000-0000/000-0000
Facsimile: (000) 000-0000
The Bank of Tokyo-Mitsubishi, Ltd. Chicago Branch
-------------------------------------------------
as a Bank
Domestic and Offshore Lending Office:
The Bank of Tokyo-Mitsubishi Ltd. Chicago Branch
000 X. Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices
of Conversion/Continuation):
The Bank of Tokyo-Mitsubishi Ltd. Chicago Branch
000 X. Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Bank One, Wisconsin
-------------------
as a Bank
Domestic and Offshore Lending Office:
5
Bank One, Wisconsin
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices:
Bank One, Wisconsin
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BankBoston, N.A.
----------------
as a Bank
Domestic and Offshore Lending Office:
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
Lg. Corp. 01-09-05
Xxxxxx, XX 00000
Attention: Xxxxxx X. XxxXxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices
of Conversion/Continuation):
BankBoston, N.A.
000 Xxxxxxx Xxxxxx
Lg. Corp. 01-09-05
Xxxxxx, XX 00000
Attention: Xxxxxx X. XxxXxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
6
First Bank National Association
-------------------------------
as a Bank
Domestic and Offshore Lending Office:
First Bank National Association
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices
of Conversion/Continuation):
First Bank National Association
000 X. Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Fuji Bank, Limited
----------------------
as a Bank
Domestic and Offshore Lending Office:
The Fuji Bank, Limited
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
Notices (other than Borrowing Notices and Notices
of Conversion/Continuation):
The Fuji Bank, Limited
000 Xxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
7
Xxxxxx Trust and Savings Bank
-----------------------------
as a Bank
Domestic and Offshore Lending Office:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices
of Conversion/Continuation):
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx
X.X. Xxx 000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
M&I Xxxxxxxx & Ilsley Bank
--------------------------
as a Bank
Domestic and Offshore Lending Office:
M&I Xxxxxxxx & Xxxxxx Bank
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of
Conversion/Continuation):
M&I Xxxxxxxx & Xxxxxx Bank
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
8
Nations Bank, N.A.
-------------------
as a Bank
Domestic and Offshore Lending Offices:
Nations Bank, N.A.
000 X. Xxxxx Xx.
00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices
of Conversion/Continuation):
Nations Bank, N.A.
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Sanwa Bank, Limited, Chicago Branch
---------------------------------------
as a Bank
Domestic and Offshore Lending Offices
The Sanwa Bank, Limited, Chicago Branch
00 X. Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices
of Conversion/Continuation:
The Sanwa Bank Limited, Chicago Branch
00 X. Xxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
9
EXHIBIT A
NOTICE OF BORROWING
Date: _______________ ,_____
To: Bank of America National Trust and Savings Association as Agent for
the Banks parties to the Multicurrency Credit Agreement dated as of
October 23, 1997 (as extended, renewed, amended or restated from time
to time, the "Credit Agreement") among Applied Power Inc., Applied
Power Europe S.A., and certain Banks which are signatories thereto and
Bank of America National Trust and Savings Association, as Agent
Ladies and Gentlemen:
The undersigned, ___________________________ (the "Borrower"), refers
to the Credit Agreement, the terms defined therein being used herein as
therein defined, and hereby gives you notice irrevocably, pursuant to
Section 2.3 of the Credit Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is
____________ , ____
2. The aggregate amount of the proposed Borrowing is
$_____________________.
3. The Borrowing is to be comprised of $___________ of [Base
Rate] [Offshore Rate] Loans.
4. The duration of the Interest Period for the Offshore Rate
Loans included in the Borrowing shall be [_____ months].
A-1
5. The Applicable Currency is _________________.
The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the proposed
Borrowing, before and after giving effect thereto and to the application of
the proceeds therefrom:
(a) the representations and warranties of the Company contained
in Article V (other than Sections 5.6 and 5.8) of the Credit Agreement
are true and correct as though made on and as of such date;
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed Borrowing.
APPLIED POWER [INC./EUROPE S.A.]
By:
------------------------------
Title:
---------------------------
A-2
EXHIBIT B
NOTICE OF CONVERSION/CONTINUATION/1/
----------------------------------
Date:__________________,____
To: Bank of America National Trust and Savings Association, as Agent for
the Banks parties to the Multicurrency Credit Agreement dated as of
October 23, 1997 (as extended, renewed, amended or restated from time
to time, the "Credit Agreement") among Applied Power Inc., Applied
Power Europe S.A., and certain Banks which are signatories thereto and
Bank of America National Trust and Savings Association, as Agent
Ladies and Gentlemen:
The undersigned, ___________________________ (the "Borrower"), refers
to the Credit Agreement, the terms defined therein being used herein as
therein defined, and hereby gives you notice irrevocably, pursuant to
Section 2.4 of the Credit Agreement, of the [conversion] [continuation] of
the Loans specified herein, that:
1. The Conversion/Continuation Date is ___________ ,_____.
2. The aggregate amount of the Committed Loans to be
[converted] [continued] is [$] _____________.
3. The Committed Loans are to be [converted into] [continued
as] [Dollar Offshore Rate] [Offshore Currency] [Base Rate] Loans.
4. [If applicable:] The duration of the Interest
-----------------
/1/ Offshore Currency Loans may only be continued in the same Offshore
Currency and may not be converted.
B-1
Period for the Loans included in the [conversion] [continuation]
shall be months.
APPLIED POWER [INC./EUROPE S.A.]
By:_____________________________
Title:__________________________
B-2
EXHIBIT C
APPLIED POWER INC.
------------------
COMPLIANCE CERTIFICATE
----------------------
Financial
Statement Date:_____________ ,_____
Reference is made to that certain Multicurrency Credit Agreement dated
as of October 23, 1997 (as extended, renewed, amended or restated from time
to time, the "Credit Agreement") among Applied Power Inc., Applied Power
Europe S.A., and the several financial institutions from time to time
parties to this Credit Agreement (the "Banks") and Bank of America National
Trust and Savings Association, as agent for the Banks (in such capacity, the
"Agent"). Unless otherwise defined herein, capitalized terms used herein
have the respective meanings assigned to them in the Credit Agreement.
The undersigned hereby certifies as of the date hereof that he/she is
the ____________ of the Company, and that, as such, he/she is authorized to
execute and deliver this Certificate to the Banks and the Agent on the
behalf of the Company and its consolidated Subsidiaries, and that:
2. The undersigned has reviewed and is familiar with the terms of
the Credit Agreement and has made, or has caused to be made under his/her
supervision, a detailed review of the transactions and conditions (financial
or otherwise) of the Company during the accounting period covered by the
attached financial statements.
3. To the best of the undersigned's knowledge, the Borrowers,
during such period, have observed, performed or satisfied all of its
covenants and other agreements, and satisfied every condition in the Credit
Agreement to be observed, performed or satisfied by the Borrowers, and the
undersigned has no knowledge of any Default or Event of Default that has
occurred
C-1
and is continuing.
4. The following financial covenant analyses and information set
forth on Schedule 1 attached hereto are true and accurate on and as of the
date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of________________ ,_____ .
APPLIED POWER INC.
By:____________________________
Title:_________________________
C-2
SCHEDULE 1
COMPUTATION SHOWING COMPLIANCE WITH
FINANCIAL RESTRICTIONS AND COVENANTS
For the Fiscal Quarter Ended __________ ,____
MINIMUM SHAREHOLDERS' EQUITY
----------------------------
(A) Shareholder's Equity at Date $________________
Minimum Allowed Shareholders Equity:
Fixed Amount: $ 170,000,000
50% of Net Proceeds of Equity Offerings
since October ___, 1997 _________________
(B) Minimum Allowed Shareholders' Equity $________________
(C) Excess (A) over (B) - Cannot be
less than $0 $
================
(D) APSA Shareholders' Equity -- Cannot
be less than $1 $________________
FIXED CHARGE COVERAGE RATIO (LAST 12 MONTHS)
--------------------------------------------
Net Income $________________
Plus:
Income Tax Expense _________________
Interest Expense _________________
Non-Capitalized Lease Expense _________________
(A) Numerator $________________
Interest Expense $________________
Non-Capitalized Lease Expense _________________
(B) Denominator $________________
(C) Ratio of (A) to (B) _________________
C-1
Minimum Permitted Ratio
=================
DEBT TO CAPITAL RATIO
---------------------
Short-Term Borrowings $________________
Commercial Paper _________________
Current portion - Long-term debt _________________
Long-term debt _________________
(A) Funded Debt $________________
Funded Debt $________________
Deferred Taxes _________________
Shareholders' Equity _________________
(B) Total Capital $
================
(C) Ratio of (A) to (B)
=================
Maximum Permitted Ratio
=================
SECURITIZATIONS/SALES (CURRENT FISCAL YEAR)
-------------------------------------------
Book Value of Assets Sold during
Fiscal Quarter $________________
Book Value of Assets Sold during
previous Fiscal Quarters of such Fiscal Year $________________
Amount Permitted --15% of Tangible
Net Assets $
================
C-2
APPLICABLE MARGIN AND NON-USE FEE CALCULATIONS
FOR THE FISCAL QUARTER ENDED ___________ ,_____
APPLICABLE MARGIN CALCULATION:
------------------------------
Debt to Capital Ratio (from
Compliance Calculation) ____ %
Applicable Margin for Offshore Rate
Loans 0.__ %
NON-USE FEE RATE CALCULATION:
-----------------------------
Debt to Capital Ratio (from
Compliance Calculation) ____ %
Applicable Non-Use Fee Rate 0.__ %
X-0
XXXXXXX X-0
FORM OF OPINIONS OF BORROWERS' COUNSEL
[Letterhead of Xxxxxxx & Xxxxx]
October 23,1997
To the Agent and each of the
Banks party to the
Agreement referred to below
c/o Bank of America National Trust
and Savings Association, as Agent
000 X. XxXxxxx Xx.
Xxxxxxx, XX 00000
Re: Multicurrency Credit Agreement dated as of October 23, 1997
("Agreement") among Applied Power Inc. ("API"), Applied Power
Europe S.A. ("APSA"), Various Financial Institutions listed
therein as Banks ("Banks"), and Bank of America National Trust
and Savings Association, as Agent ("Agent")
Ladies and Gentlemen:
We have acted as counsel to API, APSA and Versa Technologies, Inc.
(the "Guarantor") in connection with (i) the negotiation, execution and
delivery of the Agreement, the Guaranty (the "Guaranty") of the Guarantor
dated the date hereof and the other documents to which they are respectively
parties pursuant to the Agreement ("Loan Documents") and (ii) the borrowing
by API and APSA of the initial Loans. This opinion is being delivered to
you pursuant to Section 4.1(h)of the Agreement. Terms used herein which are
defined in the Agreement shall have the respective meanings set forth in the
Agreement unless otherwise defined herein.
In giving the opinions set forth in this letter, we have (i)
_____________, 1997
Page D-1-2
reviewed each of (a) the Organic Documents, as in effect on the date hereof,
of API and the Guarantor, including, without limitation, the Articles of
Incorporation and the By-Laws of API and the Guarantor, (b) the records of
the corporate proceedings of API and the Guarantor, (c) the Agreement, the
Guaranty and the other Loan Documents and (d) certificates of various state
governmental authorities as to the corporate subsistence or good standing of
API and the Guarantor; and (ii) examined such other documents, records and
questions of law and made such other investigation and review as we have
deemed necessary or appropriate as a basis for the opinions hereinafter
expressed. As to questions of fact material to the opinions expressed
herein and as to the content and form of by-laws, minutes, and resolutions
and other documents or writings, we have relied, to the extent that we have
considered reasonably appropriate, upon factual representations of API's,
APSA's and the Guarantor's management.
We note that various issues are addressed in the legal opinion of
Salans Xxxxxxxxx and Heilbronn separately provided to you, and we express no
opinion with respect to those matters.
With your permission we have assumed without inquiry or other
investigation (i) the full capacity, power and authority of each Person
(other than API and the Guarantor) to execute, deliver and perform the
Agreement and the other Loan Documents, and each document heretofore
executed and delivered or hereafter to be executed and delivered and to do
such other acts heretofore done or hereafter to be done by such Person as
contemplated by the Agreement and the other Loan Documents; (ii) the
legality, validity, binding effect and enforceability as to each Person
(other than API and the Guarantor) of the Agreement and the other Loan
Documents, and each document executed and delivered as contemplated by the
Agreement and the other Loan Documents; (iii) the genuineness of each
signature on all documents that we have examined; (iv) the completeness and
authenticity of each document submitted to us; and (v) the conformity to the
original of each document submitted to us as a copy.
D-1-2
_____________, 1997
Page D-1-3
Based upon and subject to the foregoing, and subject to the
qualifications and exceptions set forth herein, we are of the opinion that:
1. Each of API and the Guarantor (i) is validly existing and
in good standing under the laws of the jurisdiction of its incorporation,
and (ii) has full corporate power and authority and, to the best of our
knowledge without specific investigation, holds all material requisite
governmental licenses, permits and other approvals to own and hold under
lease its property, and to conduct its business substantially as currently
conducted by it. Each of API and the Guarantor has full corporate power and
authority to execute, deliver and perform its obligations under the Loan
Documents to which it is a party and to take all other actions incidental to
any thereof. Effective January 1, 1991 the concept of "good standing" was
deleted from the Wisconsin Business Corporation Law. Accordingly, the
opinion as to "good standing" with respect to API in the first sentence of
this paragraph means "active and current with the Wisconsin Department of
Financial Institutions, the successor to the Wisconsin Secretary of State".
2. The execution and delivery by API and the Guarantor of
each Loan Document executed or to be executed by it to which it is a party
and the performance by API and the Guarantor of all obligations thereunder
and all of its respective other actions incidental to any thereof (i) have
been duly authorized by the Board of Directors of API and the Guarantor,
(ii) do not and will not conflict with, result in any violation of, or
constitute any default under, (A) any provision of any Organic Document or
material Contractual Obligation of which we have knowledge after due inquiry
which is binding on API or the Guarantor, or (B) any applicable Wisconsin,
Delaware corporate or federal law or governmental regulation or, to the best
of our knowledge after due inquiry, any applicable decree, order, writ or
injunction or any court, arbitrator or governmental authority having
jurisdiction over API or the Guarantor or the property, of
D-1-3
_____________, 1997
Page D-1-4
API or the Guarantor, and (iii) will not result in or require the creation
or imposition of any Lien on any of the properties of API or the Guarantor
pursuant to the provisions of any material Contractual Obligation of which
we have knowledge after due inquiry.
3. The execution and delivery by APSA of each Loan Document
executed or to be executed by it and the performance by APSA of all its
obligations thereunder and other actions incidental to any thereof (i) do
not and will not conflict with, result in any violation of, or constitute
any default under any applicable Wisconsin or federal law or governmental
regulation or, to the best of our knowledge after due inquiry, any
applicable decree, order, writ or injunction or any federal or Wisconsin
court, arbitrator or governmental authority having jurisdiction over APSA or
the property of APSA, and (ii) will not result in or require the creation or
imposition of any Lien under federal or Wisconsin law on any of the
properties of APSA pursuant to the provisions of any material Contractual
Obligation of which we have knowledge after due inquiry.
4. Each of API and the Guarantor has duly executed and
delivered the Loan Documents to which it is a party on the date hereof. Each
of the Loan Documents to which it is a party constitutes the legal, valid
and binding obligation of API and the Guarantor enforceable against API or
the Guarantor in accordance with its respective terms. Assuming that APSA
has duly authorized, executed and delivered the Agreement and the Notes to
which it is a party, each of the Agreement and such Notes constitutes the
legal, valid and binding obligation of APSA, enforceable against APSA in
accordance with its respective terms.
5. To the best of our knowledge after due inquiry, except as
disclosed in the Disclosure Schedule, there is no pending or overtly
threatened litigation, action or proceeding affecting either API or any
Subsidiary of API, or any of their respective properties, assets or
revenues, which would have a
D-1-4
_____________, 1997
Page D-1-5
Material Adverse Effect.
6. No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body or
any other Person pursuant to any law or regulation of the United States of
America or the States of Wisconsin or Illinois is required to be obtained or
made by API, APSA or the Guarantor in connection with the due execution,
delivery or performance by each of API, APSA, and the Guarantor of any Loan
Document to which it is or is to be a party, or the borrowing by API or APSA
of Loans on the date hereof, except for authorizations, approvals, actions,
notices or filings which have been duly obtained or made and are in full
force and effect or where the failure to obtain or make any thereof would
not have a Material Adverse Effect.
7. Neither API, APSA nor any Subsidiary of API is an
"investment company" within the meaning of the Investment Company Act of
1940, as amended, or a "holding company," a "subsidiary company" of a
"holding company" or an "affiliate" of a "holding company," within the
meaning of and subject to regulation under the Public Utility Holding
Company Act or 1935, as amended.
8. Neither the execution or delivery by API, APSA or the
Guarantor of any of the Loan Documents to which it is a party, nor the
performance of their respective obligations thereunder, will violate F.R.S.
Board Regulation G, T, U or X.
9. The courts of the State of Wisconsin should, based on
existing decisional law of Wisconsin, give effect to the choice of Illinois
law in Section 10.15 of the Agreement and Section 3.9 of the Guaranty as the
governing law in respect of the Agreement, the Notes and the Guaranty,
except as limited by Wisconsin Statute Section 401.105(2) and assuming that:
(a) there has been no fraud in any transaction involving the Agreement, the
Notes or the Guaranty; (b) the consent of any of the parties to the choice
of Illinois law was not obtained by improper means, such as any
misrepresentation, duress, or undue
D-1-5
_____________, 1997
Page D-1-6
influence, or by mistake; and (c) such application of Illinois law would not
be contrary to any public policy of the State of Wisconsin. Wisconsin
Statute Section 401.105(1) indicates that "when a transaction bears a
reasonable relation to this state and also to another state or nation the
parties may agree that the law either of this state or of such other state
or nation shall govern their rights and duties."
The Wisconsin Supreme Court (the "Court"), in a case addressing
a contractual choice of law, has stated that:
A precise delineation of those policies which are
sufficiently important to warrant overriding a contractual choice of
law stipulation is not possible. In general, however, statutes or
common law which make a particular type of contract enforceable, e.g.,
usury laws, or which make a particular contract provision enforceable,
e.g., laws prohibiting covenants not to compete, or that are designed
to protect a weaker party against the unfair exercise of superior
bargaining power by another party, are likely to embody an important
state public policy.
Xxxx v. National School Studios, Inc., 139 Wis. 2d 635, 643, 407 N.W.2d 883
(1987). In the Xxxx case, the Court refused to honor a contractual choice
of law which would have circumvented the Wisconsin Fair Dealership Law. In
a prior case, Xxxxxx x. Xxxxxxx Financing Corp., 113 Wis. 2d 73, 78, 334
N.W.2d 913 (1983), a Wisconsin court honored the parties' choice of Missouri
law in considering claimed usury law violations. Based solely upon our
investigation of Wisconsin law in connection with this opinion and the
assumptions and qualifications set forth herein, we hereby advise you that
we are currently unaware of any reason why the courts of Wisconsin would
determine that such application of Illinois law would be contrary to any
public policy of the State of Wisconsin.
Our opinions expressed in this letter are subject to:
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_____________, 1997
Page D-1-7
(a) the effect or bankruptcy, insolvency, reorganization, receivership,
fraudulent conveyance, moratorium and other similar federal and state laws
and judicially developed doctrines relevant to any such laws affecting the
rights and remedies of creditors generally; and (b) the effect of general
principles of equity, whether applied by a court of law or equity
(including, without limitation, principles governing the availability of
specific performance, injunctive relief or other equitable remedies or
affording equitable defenses against a party seeking enforcement). Without
limiting the foregoing, we note that a Wisconsin court might impose
obligations of good faith, fair dealing, diligence and reasonableness in
connection with any of the Agreement, the Notes and the Guaranty.
The law covered by the opinions expressed herein is limited to
the federal laws of the United States of America, the present internal laws
of the State of Wisconsin, with respect to the opinions expressed as to the
Guarantor in paragraphs 1 and 2 hereof, the corporate law of the State of
Delaware, and (as qualified below) Illinois. In rendering the opinions
expressed herein with respect to matters of the laws of Illinois, we have
assumed, with your permission, that the present internal laws of Illinois
are identical to the present internal laws of Wisconsin in all respects
material to our opinions. We express no opinion whether that assumption is
correct or reasonable under the circumstances.
This opinion deals only with the specific legal issues that it
explicitly addresses and no opinions shall be implied as to matters not so
addressed.
Our opinions herein are subject to the following additional
qualifications:
(a) Except as specifically set forth herein, no opinion is
rendered as to title of API, APSA or the Guarantor to any
assets, nor as to priority of any mortgage or security
interest.
D-1-7
_____________, 1997
Page D-1-8
(b) This opinion is given as of the date hereof, it is
intended to apply only to those facts and circumstances
which exist as of the date hereof, and we assume no
obligation or responsibility to update or supplement this
opinion to reflect any facts or circumstances which may
hereafter come to our attention, any changes in laws
which may hereafter occur, or to inform the addressee of
any change in circumstances occurring after the date of
this opinion which would alter the opinions rendered
herein.
This opinion letter is intended solely for your benefit and that
of the other Banks who may become parties to the Agreement (including
assignees and participants of such Banks), and may not be relied upon,
referred to or otherwise used by any other Person without our express
written consent, except that Xxxxx, Xxxxx & Xxxxx are authorized to rely on
this letter, in connection with their representation of you, as if this
letter were addressed to them. Subject to the foregoing, this opinion
letter may be relied upon by you only in connection with the transactions
contemplated by the Agreement, and may not be used or relied upon by you or
any other Person for any other purpose whatsoever without in each instance
our prior written consent.
D-1-8
_____________, 1997
Page D-1-9
We note that Xxxxxxx X. Xxxxxx III, a partner of this firm, is
also Secretary of API and the Guarantor, and Secretary, Assistant Secretary
and/or a Director of certain Subsidiaries of API.
Very truly yours,
XXXXXXX & XXXXX
D-1-9
EXHIBIT D-2
[Letterhead of Salans, Xxxxxxxxx & Heilbronn]
_________, 1997
To the Administrative Agent and
each of the Banks party to the
Agreement referred to below
c/o Bank of America National Trust
and Savings Association, as Agent
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Re: Multicurrency Credit Agreement dated as of October 23, 1997 (the
"Agreement") among Applied Power Europe S.A. ("APSA"), Applied
Power Inc. ("API"), various financial institutions (the "Banks")
and Bank of America National Trust and Savings Association, as
Agent (the "Agent")
Ladies and Gentlemen:
We have acted as counsel to APSA in connection with the execution and
delivery of the Agreement and the other Loan Documents to which it is a
party. This opinion is being delivered to you pursuant to Section 4.1(h) of
the Agreement. Terms used herein which are defined in the Agreement shall
have the respective meanings set forth in the Agreement unless otherwise
defined herein.
In giving the opinions set forth in this letter we have (i) reviewed
each of (a) the Organic Documents, as in effect on the date hereof, of APSA,
(b) the records of the corporate proceedings of APSA, and (c) the Agreement
and the Notes; and (ii) examined such questions of law and made such other
investigation and review as we have deemed necessary or
appropriate as a basis for the opinions hereinafter expressed. As to
questions of fact material to the opinions expressed herein and as to the
content and form of by-laws, minutes, and resolutions and other documents or
writings, we have relied, to the extent that we have considered reasonably
appropriate, upon representations of APSA's management.
We have assumed without inquiry or other investigation (i) the conformity
with originals of all documents submitted to us as copies and the
genuineness of all signatures; (ii) the full capacity, power and authority
of each Person (other than APSA) to execute, deliver and perform the
Agreement, and each document heretofore executed and delivered or hereafter
to be executed and delivered and to do such other acts heretofore done or
hereafter to be done by such Person as contemplated by the Agreement; (iii)
the legality, validity, binding effect and enforceability as to each Person
(other than APSA) of the Agreement, and each document executed and delivered
as contemplated by the Agreement; (iv) the genuineness of each signature on
all documents that we have examined; (v) the completeness and authenticity
of each document submitted to us; and (vi) the conformity to the original of
each document submitted to us as a copy.
Based upon and subject to the foregoing, and subject to the
qualifications and exceptions set forth herein, we are of the opinion that:
1. APSA and each of its Subsidiaries, (i) is a corporation duly
organized in France as a societe anonyme, and validly existing under the
laws of the Republic of France ("France"), and (ii) has full corporate power
and authority and, to the best of our knowledge without specified
investigation, holds all material requisite governmental licenses, permits
and other approvals to own and hold under lease its property and to conduct
its business substantially as currently conducted by it. APSA has full
corporate power and authority to execute, deliver and perform its
obligations under the Agreement and to take all other actions incidental to
any thereof.
2. The execution and delivery by APSA of the Agreement and
_____________, 1997
Page D-2-3
the Notes, and the performance by APSA of all its respective obligations
thereunder, and all other actions incidental to any thereof (i) have been
duly authorized by all necessary corporate action, (ii) do not and will not
conflict with, result in any violation of, or constitute any default under,
(A) any provision of any Organic Document or material Contractual Obligation
of which we have knowledge after due inquiry, any applicable decree, order,
writ or jurisdiction over APSA or its property, and (iii) will not result in
or require the creation or imposition of any Lien on any of the properties
of APSA pursuant to the provisions of any material Contractual Obligation of
which we have knowledge after due inquiry. APSA has duly executed and
delivered the Agreement and the Notes.
3. There is no pending or, to the best of our knowledge, threatened
litigation, action or proceeding affecting APSA or any Subsidiary of APSA,
or any of their respective properties, assets or revenues, which may have a
Material Adverse Effect.
4. No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other Person pursuant to any law or regulation of France is required to be
obtained or made by APSA in connection with the due execution, delivery or
performance by APSA of the Agreement, or the borrowing by APSA of Loans on
the date hereof, except for authorizations, approvals, actions, notices or
filings which have been duly obtained or made and are in full force and
effect or where the failure to obtain or make any thereof would not have a
Material Adverse Effect.
5.(a) The choice of law provisions set forth in the Agreement and the
Notes should be recognized by the courts in France ("French Courts");
(b) APSA can xxx and be sued in its own name in French Courts;
(c) under the laws of France, the irrevocable submission of
D-2-3
_____________, 1997
Page D-2-4
APSA to the jurisdiction of federal and state courts in Chicago, Illinois
(each an "Illinois Court" and collectively the "Illinois Courts"), and the
agreement of APSA that the Agreement and the Notes shall be governed by and
construed in accordance with the laws of Illinois, are legal, valid and
binding; and
(d) any judgment obtained in an Illinois Court arising out of or in
relation to the obligations of APSA under the Agreement, the Notes or the
transactions contemplated thereby should be recognized and enforced in
France, subject to obtaining an exequatur of such judgment from a French
court, which should be obtained provided that:
(i) such judgment is final and obtained in compliance with
legal requirements of the jurisdiction of the court rendering such judgment
and in compliance with the Agreement and the transactions contemplated
thereby,
(ii) service of process was made personally,
(iii) such judgment does not contravene French law, French
public policy, international public policy, international treaties binding
upon France or generally accepted principles of international law,
(iv) the applicable procedure under the law of France with
respect to the enforcement of foreign judgments including exequatur is
complied with,
(v) no judgment or action on the same subject between the
parties thereto shall have been initiated or shall be pending in any French
court.
6. In proceedings brought in the French Courts in relation to the
Agreement or the Notes, APSA will not be entitled to claim for itself or any
of its properties (whether real or personal) situated within the
jurisdiction of such French court immunity on any grounds, to the extent
that it could have or thereafter could
D-2-4
_____________, 1997
Page D-2-5
acquire any such immunity, from jurisdiction, suit, execution, attachment or
judgment of any court or from any other legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise).
7. A judgment in a French Court to a claim brought in connection
with the Agreement or the Notes could be rendered in Dollars.
8. Any payment of principal, interest, fees or other amounts by
APSA will not be subject, under applicable French tax laws and regulations,
to any withholding tax or other deduction.
9. To ensure the legality, validity, enforceability or
admissibility in evidence of the Agreement or the Notes, it is not necessary
that the Agreement or the Notes or any other document be previously filed,
registered or recorded with any court or other authority in France or that
any registration charges or stamp or similar tax be paid on or in respect of
the Agreement or the Notes or any other document issued in connection with
the Agreement.
10. After being translated into French by an accredited translator,
the Agreement and the Notes will be in proper legal form under the laws of
France for the enforcement thereof against APSA.
11. It is not necessary under the laws of France (a) in order to
enable the Agent or any Banks to enforce its rights under the Agreement or
the Notes or (b) by reason of the execution, delivery or performance of the
Agreement or the Notes that it should be licensed, qualified or entitled to
carry on business in France.
12. Neither the Agent nor any Bank will be deemed under present
legislation in France to be resident, domiciled or carrying on business in
France by reason only of the execution, delivery, performance or enforcement
of the Agreement or
D-2-5
_____________, 1997
Page D-2-6
the Notes.
13. The obligations of APSA under the Agreement and the Notes are
valid and binding obligations enforceable against it according to their
terms and will at all times rank pari passu with all other unsecured and
unsubordinated obligations of APSA but may be limited by statutory
priorities established by tax, labor, bankruptcy, suspension of payments and
similar laws affecting creditors rights generally.
Attorneys involved in the preparation of its opinion letter are
members of the bar of France, and we express no opinion as to the laws of
any jurisdiction other than the laws of France as in effect on the date
hereof.
This letter is intended solely for your benefit and that of the other
Banks who may become parties to the Agreement including assignees and
participants of such Banks, and may not be relied upon, referred to or
otherwise used by any other Person without our express written consent,
except that Xxxxx, Xxxxx & Xxxxx are authorized to rely on this letter, in
connection with their representation of you, as if this letter were
addressed to them.
Very truly yours,
Salans, Xxxxxxxxx & Heilbronn
EXHIBIT E
[FORM OF] ASSIGNMENT AND ACCEPTANCE AGREEMENT
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
Acceptance") dated as of _____________, is made between
______________________________ (the "Assignor") and
__________________________ (the "Assignee").
RECITALS
--------
WHEREAS, the Assignor is party to that certain Multicurrency
Credit Agreement dated as of October 23, 1997 (as amended, amended and
restated, modified, supplemented or renewed, the "Credit Agreement") among
Applied Power Inc., Applied Power Europe S.A., and the several financial
institutions from time to time party thereto (including the Assignor, the
"Banks"), and Bank of America National Trust and Savings Association, as
agent for the Banks (the "Agent"). Any terms defined in the Credit
Agreement and not defined in this Assignment and Acceptance are used herein
as defined in the Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor
has committed to making Loans (the "Committed Loans") to the Borrowers in an
aggregate amount not to exceed $__________ (the "Commitment");
WHEREAS, [the Assignor has made Committed Loans in the aggregate
principal amount of $__________ to the Company and $______ to APSA] [no
Committed Loans are outstanding under the Credit Agreement];
WHEREAS, the Assignor wishes to assign to the Assignee [part of
the] [all] rights and obligations of the Assignor under the Credit Agreement
in respect of its Commitment, [together with a corresponding portion of each
of its outstanding Committed Loans] in an amount equal to $__________ (the
"Assigned Amount") on the terms and subject to the conditions set forth
herein and the Assignee wishes to accept assignment of such rights and to
E-1
assume such obligations from the Assignor on such terms and subject to such
conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
--------------------------
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes
from the Assignor, without recourse and without representation or warranty
(except as provided in this Assignment and Acceptance) __% (the "Assignee's
Percentage Share") of (A) the Commitment [and the Committed Loans] of the
Assignor and (B) all related rights, benefits, obligations, liabilities and
indemnities of the Assignor under and in connection with the Credit
Agreement and the Loan Documents.
[If appropriate, add paragraph specifying payment to Assignor by
Assignee of outstanding principal of, accrued interest on, and fees with
respect to, Committed Loans assigned.]
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the
obligations of a Bank under the Credit Agreement, including the requirements
concerning confidentiality and the payment of indemnification, with a
Commitment in an amount equal to the Assigned Amount. The Assignee agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement are required to be performed by
it as a Bank. It is the intent of the parties hereto that the Commitment of
the Assignor shall, as of the Effective Date, be reduced by an amount equal
to the Assigned Amount and the Assignor shall relinquish its rights and be
released from its obligations under the Credit Agreement to the extent such
obligations have been assumed by the
E-2
Assignee; provided, however, the Assignor shall not relinquish its rights
under Sections 3.1, 3.3, 10.3 and 10.4 of the Credit Agreement to the extent
such rights relate to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignee's Commitment will be
$__________.
(d) After giving effect to the assignment and assumption set
forth herein, on the Effective Date the Assignor's Commitment will be
$__________.
2. Payments.
---------
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on
the Effective Date in immediately available funds an amount equal to
$__________, representing the Assignee's Pro Rata Share of the principal
amount of all Committed Loans.
(b) The [Assignor] [Assignee] further agrees to pay to the
Agent a processing fee in the amount specified in Section 10.8(a) of the
Credit Agreement.
3. Reallocation of Payments.
-------------------------
Any interest, fees and other payments accrued to the Effective Date
with respect to the Commitment[,] [and] Committed Loans shall be for the
account of the Assignor. Any interest, fees and other payments accrued on
and after the Effective Date with respect to the Assigned Amount shall be
for the account of the Assignee. Each of the Assignor and the Assignee
agrees that it will hold in trust for the other party any interest, fees and
other amounts which it may receive to which the other party is entitled
pursuant to the preceding sentence and pay to the other party any such
amounts which it may receive promptly upon receipt.
4. Independent Credit Decision.
----------------------------
E-3
The Assignee (a) acknowledges that it has received a copy of the
Credit Agreement and the Schedules and Exhibits thereto, together with
copies of the most recent financial statements referred to in Section 6.1(a)
and (b) of the Credit Agreement, and such other documents and information as
it has deemed appropriate to make its own credit and legal analysis and
decision to enter into this Assignment and Acceptance; and (b) agrees that
it will, independently and without reliance upon the Assignor, the Agent or
any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit and legal decisions
in taking or not taking action under the Credit Agreement.
5. Effective Date; Notices.
------------------------
(a) As between the Assignor and the Assignee, the effective
date for this Assignment and Acceptance shall be __________, 199__ (the
"Effective Date"); provided that the following conditions precedent have
been satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Company and the Agent required
for an effective assignment of the Assigned Amount by the Assignor to the
Assignee under Section 10.8(a) of the Credit Agreement shall have been duly
obtained and shall be in full force and effect as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts
due to the Assignor under this Assignment and Acceptance;
[(iv) the Assignee shall have complied with Section 8.10
of the Credit Agreement (if applicable);
(v) the processing fee referred to in Section 2(b)
hereof and in Section 10.8(a) of the Credit Agreement shall have been paid
to the Agent; and
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(vi) the Assignor shall have assigned and the Assignee
shall have assumed a percentage equal to the Assignee's Percentage Share of
the rights and obligations of the Assignor under the Credit Agreement (if
such agreement exists).
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Company and the Agent for
acknowledgment by the Agent, a Notice of Assignment substantially in the
form attached hereto as Schedule 1.
[6. Agent. [INCLUDE ONLY IF ASSIGNOR IS AGENT]
(a) The Assignee hereby appoints and authorizes the Assignor
to take such action as agent on its behalf and to exercise such powers under
the Credit Agreement as are delegated to the Agent by the Banks pursuant to
the terms of the Credit Agreement.
(b) The Assignee shall assume no duties or obligations held by
the Assignor in its capacity as Agent under the Credit Agreement.]
7. Withholding Tax.
----------------
The Assignee (a) represents and warrants to the Bank, the Agent and
the Company that under applicable law and treaties no tax will be required
to be withheld by the Bank with respect to any payments to be made to the
Assignee hereunder, (b) agrees to furnish (if it is organized under the laws
of any jurisdiction other than the United States or any State thereof) to
the Agent and the Company prior to the time that the Agent or Company is
required to make any payment of principal, interest or fees hereunder,
duplicate executed originals of either U.S. Internal Revenue Service Form
4224 or U.S. Internal Revenue Service Form 1001 (wherein the Assignee claims
entitlement to the benefits of a tax treaty that provides for a complete
exemption from U.S. federal income withholding tax on all payments
hereunder) and agrees to provide new Forms 4224 or 1001 upon the expiration
of any previously delivered form or comparable statements in accordance with
applicable U.S. law and regulations and
E-5
amendments thereto, duly executed and completed by the Assignee, and (c)
agrees to comply with all applicable U.S. laws and regulations with regard
to such withholding tax exemption.
8. Representations and Warranties.
-------------------------------
(a) The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it hereunder
and that such interest is free and clear of any Lien or other adverse claim;
(ii) it is duly organized and existing and it has the full power and
authority to take, and has taken, all action necessary to execute and
deliver this Assignment and Acceptance and any other documents required or
permitted to be executed or delivered by it in connection with this
Assignment and Acceptance and to fulfill its obligations hereunder; (iii) no
notices to, or consents, authorizations or approvals of, any Person are
required (other than any already given or obtained) for its due execution,
delivery and performance of this Assignment and Acceptance, and apart from
any agreements or undertakings or filings required by the Credit Agreement,
no further action by, or notice to, or filing with, any Person is required
of it for such execution, delivery or performance; and (iv) this Assignment
and Acceptance has been duly executed and delivered by it and constitutes
the legal, valid and binding obligation of the Assignor, enforceable against
the Assignor in accordance with the terms hereof, subject, as to
enforcement, to bankruptcy, insolvency, moratorium, reorganization and other
laws of general application relating to or affecting creditors' rights and
to general equitable principles.
(b) The Assignor makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of the Credit Agreement or any other instrument or document furnished
pursuant thereto. The Assignor makes no representation or warranty in
connection with, and assumes no responsibility with respect to, the
solvency, financial condition or statements of the Company, or the
performance or observance by the Company, of any of its
E-6
respective obligations under the Credit Agreement or any other instrument or
document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any
already given or obtained) for its due execution, delivery and performance
of this Assignment and Acceptance; and apart from any agreements or
undertakings or filings required by the Credit Agreement, no further action
by, or notice to, or filing with, any Person is required of it for such
execution, delivery or performance; (iii) this Assignment and Acceptance has
been duly executed and delivered by it and constitutes the legal, valid and
binding obligation of the Assignee, enforceable against the Assignee in
accordance with the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors' rights and to general equitable
principles; and (iv) it is an Eligible Assignee.
9. Further Assurances.
-------------------
The Assignor and the Assignee each hereby agree to execute and deliver
such other instruments, and take such other action, as either party may
reasonably request in connection with the transactions contemplated by this
Assignment and Acceptance, including the delivery of any notices or other
documents or instruments to the Company or the Agent, which may be required
in connection with the assignment and assumption contemplated hereby.
10. Miscellaneous.
--------------
(a) Any amendment or waiver of any provision of this
Assignment and Acceptance shall be in writing and signed by the parties
hereto. No failure or delay by either party hereto in
E-7
exercising any right, power or privilege hereunder shall operate as a waiver
thereof and any waiver of any breach of the provisions of this Assignment
and Acceptance shall be without prejudice to any rights with respect to any
other or further breach thereof.
(b) All payments made hereunder shall be made without any
set-off or counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs
and expenses incurred in connection with the negotiation, preparation,
execution and performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any
number of counterparts and all of such counterparts taken together shall be
deemed to constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF ILLINOIS. The Assignor
and the Assignee each irrevocably submits to the non-exclusive jurisdiction
of any State or Federal court sitting in Illinois over any suit, action or
proceeding arising out of or relating to this Assignment and Acceptance and
irrevocably agrees that all claims in respect of such action or proceeding
may be heard and determined in such Illinois State or Federal court. Each
party to this Assignment and Acceptance hereby irrevocably waives, to the
fullest extent it may effectively do so, the defense of an inconvenient
forum to the maintenance of such action or proceeding.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR
IN CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY
RELATED DOCUMENTS AND AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, OR STATEMENTS (WHETHER ORAL OR WRITTEN).
[Other provisions to be added as may be negotiated
E-8
between the Assignor and the Assignee, provided that such provisions are not
inconsistent with the Credit Agreement.]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By:
Title:
By:
Title:
Address:
E-9
[ASSIGNEE]
By:
Title:
By:
Title:
Address:
E-10
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
-----------------------------------
_______________, 19__
Bank of America National Trust
and Savings Association, as Agent
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Agency Management Services #5596
Applied Power Inc.
00000 Xxxx Xxxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
We refer to the Multicurrency Credit Agreement dated as of October 23,
1997 (as amended, amended and restated, modified, supplemented or renewed
from time to time the "Credit Agreement") among Applied Power Inc., Applied
Power Europe S.A., and the Banks referred to therein and Bank of America
National Trust and Savings Association as agent for the Banks (the "Agent").
Terms defined in the Credit Agreement are used herein as therein defined.
1. We hereby give you notice of, and request your consent to, the
assignment by __________________ (the "Assignor") to _______________ (the
"Assignee") of _____% of the right, title and interest of the Assignor in
and to the Credit Agreement (including, without limitation, the right, title
and interest of the Assignor in and to the Commitments of the Assignor[,]
[and] all outstanding Loans made by the Assignor) pursuant to the Assignment
and Acceptance Agreement attached hereto (the "Assignment and Acceptance").
Before giving effect to such assignment the Assignor's Commitment is $
___________[,] [and]
the aggregate amount of its outstanding Loans is $_____________.
2. The Assignee agrees that, upon receiving the consent of the
Agent and, if applicable, Applied Power Inc. to such assignment, the
Assignee will be bound by the terms of the Credit Agreement as fully and to
the same extent as if the Assignee were the Bank originally holding such
interest in the Credit Agreement.
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name: __________________________
Address: _______________________________
_______________________________
_______________________________
Attention: _____________________________
Telephone: (___) _______________________
Telecopier: (___) ______________________
Telex (Answerback): ____________________
(B) Payment Instructions:
Account No.: ___________________________
At: ___________________________
___________________________
___________________________
Reference: ___________________________
Attention: ___________________________
4. You are entitled to rely upon the representations, warranties
and covenants of each of the Assignor and Assignee contained in the
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above
mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By:
Title:
By:
Title:
[NAME OF ASSIGNEE]
By:
Title:
By:
Title:
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
APPLIED POWER INC.
By:_______________________________
Title: __________________________
By:_______________________________
Title: __________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: __________________________
Its: _________________________
EXHIBIT F-1
[FORM OF] BID NOTE
_____________, ______
FOR VALUE RECEIVED, the undersigned, Applied Power Inc. (the
"Borrower"), hereby promises to pay to the order of (the
"Bank") the aggregate unpaid principal amount of all Bid Loans made by the
Bank to the Borrower pursuant to the Multicurrency Credit Agreement, dated
as of October 23, 1997 (such Multicurrency Credit Agreement, as it may be
amended, restated, supplemented or otherwise modified from time to time,
being hereinafter called the "Credit Agreement"), among Applied Power Inc.,
Applied Power Europe S.A., the Bank, the other banks parties thereto, and
Bank of America National Trust and Savings Association, as Agent for the
Banks, on the dates and in the amounts provided in the Credit Agreement. The
Borrower further promises to pay interest on the unpaid principal amount of
the Bid Loans evidenced hereby from time to time at the rates, on the dates,
and otherwise as provided in the Credit Agreement.
The Bank is authorized to endorse the amount and the date on
which each Bid Loan is made, the maturity date therefor and each payment of
principal with respect thereto on the schedules annexed hereto and made a
part hereof, or on continuations thereof which shall be attached hereto and
made a part hereof; provided, that any failure to endorse such information
on such schedule or continuation thereof shall not in any manner affect any
obligation of the Borrower under the Credit Agreement and this Bid Note (the
"Note").
This Note is one of the Notes referred to in, and is entitled to
the benefits of, the Credit Agreement, which Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
F-1-1
Terms defined in the Credit Agreement are used herein with their
defined meanings therein unless otherwise defined herein. This Note shall
be governed by, and construed and interpreted in accordance with, the laws
of the State of Illinois applicable to contracts made and to be performed
entirely within such State.
APPLIED POWER INC.
By:_______________________________
Title:____________________________
F-1-2
Schedule to Bid Note
BID LOANS AND REPAYMENT OF BID LOANS
(3) (4)
(2) Maturity Amount (5)
(1) Amount of Date of of Bid Notation
Date Bid Loan Bid Loan Loan Repaid Made By
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
F-1-3
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
___________ ____________ ___________ ___________ _________
F-1-4
EXHIBIT F-2
[FORM OF] COMMITTED NOTE
$_____________________ _____________,_____
FOR VALUE RECEIVED, the undersigned, [Applied Power Inc./Applied
Power Europe S.A.] (the "Borrower"), hereby promises to pay to the order of
(the "Bank"), the aggregate unpaid principal amount of all Committed Loans
made by the Bank to the Borrower pursuant to the Multicurrency Credit
Agreement, dated as of October 23, 1997 (such Multicurrency Credit
Agreement, as it may be amended, restated, supplemented or otherwise
modified from time to time, being hereinafter called the "Credit
Agreement"), among Applied Power Inc., Applied Power Europe S.A., the Bank,
the other banks parties thereto, and Bank of America National Trust and
Savings Association, as Agent for the Banks, on the dates and in the amounts
provided in the Credit Agreement. The Borrower further promises to pay
interest on the unpaid principal amount of the Committed Loans evidenced
hereby from time to time at the rates, on the dates, and otherwise as
provided in the Credit Agreement.
The Bank is authorized to endorse the amount and the date on
which each Committed Loan is made, the maturity date therefor and each
payment of principal with respect thereto on the schedules annexed hereto
and made a part hereof, or on continuations thereof which shall be attached
hereto and made a part hereof; provided, that any failure to endorse such
information on such schedule or continuation thereof shall not in any manner
affect any obligation of the Borrower under the Credit Agreement and this
Committed Note (the "Note").
This Note is one of the Notes referred to in, and is entitled to
the benefits of, the Credit Agreement, which Credit Agreement, among other
things, contains provisions for acceleration of the maturity hereof upon the
happening of certain stated events and also for prepayments on account of
principal hereof prior to the maturity hereof upon the terms and conditions
F-2-1
therein specified.
F-2-2
Terms defined in the Credit Agreement are used herein with their
defined meanings therein unless otherwise defined herein. This Note shall
be governed by, and construed and interpreted in accordance with, the laws
of the State of Illinois applicable to contracts made and to be performed
entirely within such State.
[APPLIED POWER INC./
APPLIED POWER EUROPE S.A.]
By:_____________________________
Title:__________________________
F-2-3
Schedule A to Committed Note
BASE RATE LOANS AND REPAYMENT OF BASE RATE LOANS
(2) (3) (4)
Amount Maturity Amount of
of Date of Base (5)
(1) Base Base Rate Loan Notation
Date Rate Loan Rate Loan Repaid Made By
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
F-2-4
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
F-2-5
Schedule B to Committed Note
OFFSHORE RATE LOANS AND REPAYMENT OF OFFSHORE RATE LOANS
--------------------------------------------------------
(2) (3) (4)
Amount Maturity Amount of
of Date of Offshore (5)
(1) Offshore Offshore Rate Notation
Date Rate Loan Rate Loan Loan Repaid Made By
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
F-2-6
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
___________ ___________ ___________ _____________ ____________
F-2-7
EXHIBIT G
FORM OF OPINION OF COUNSEL FOR THE AGENT
[Letterhead of Xxxxx, Xxxxx & Xxxxx]
_________, 1997
To each financial institution that is a
party to the Credit Agreement referred
to below
Re: Applied Power Inc.
Ladies and Gentlemen:
We have acted as counsel for Bank of America National Trust and Savings
Association in its capacity as Agent in connection with the preparation,
execution and delivery of the Multicurrency Credit Agreement, dated as of
October 23, 1997 (the "Credit Agreement"), among Applied Power Inc. (the
"Company"), Applied Power Europe S.A. ("APSA") the financial institutions
which are parties thereto (the "Banks"), and Bank of America National Trust
and Savings Association, as agent for the Banks (in such capacity, the
"Agent"). Terms defined in the Credit Agreement are used herein as defined
therein.
In connection herewith, we have examined the following (collectively,
the "Closing Documents"):
(1) counterparts of the Credit Agreement executed by the Company,
APSA, the Agent, and the Banks (or, in the case of certain Banks, facsimile
confirmation that such Banks have executed a counterpart of the Credit
Agreement);
(2) the documents, certificates and opinion of counsel furnished on
October 23, 1997 pursuant to Section 4.1 of the Credit Agreement.
In our examination of the Closing Documents, we have assumed the
genuineness of all signatures, the authority of the persons
G-1
signing each of the Closing Documents, the authenticity of all documents
submitted to us as originals and the conformity to authentic original
documents of all documents submitted to us as certified, conformed or
photostatic copies. We also have assumed that (a) each of the Company and
APSA has duly executed and delivered the Credit Agreement pursuant to due
authorization and (b) the Credit Agreement is the legal, valid and binding
obligation of the Agent and each Bank, enforceable against each such entity
in accordance with its terms.
Based upon the foregoing, and subject to the qualifications set forth
below, we are of the opinion that, under the laws of the State of Illinois:
1. The Credit Agreement constitutes the legal, valid and binding
obligation of the Company and APSA, enforceable against each of the Company
and APSA in accordance with its terms; and
2. The other Closing Documents are substantially responsive to the
requirements of the Credit Agreement.
Our opinion is subject to the following qualifications:
(a) We express no opinion as to the effect of the law of any
jurisdiction other than the State of Illinois wherein any Bank or any Bank's
initial or successor Lending Office may be located, or wherein enforcement
of the Credit Agreement may be sought, which limits the rates of interest
legally chargeable or collectible.
(b) We express no opinion with respect to the rights of any
Participant under Section 10.8(d) of the Credit Agreement.
(c) Our opinion in paragraph (1) above is subject to the effect of any
applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors' rights generally and to the effect of general
principles of equity (regardless of whether considered in a proceeding in
equity or at law), including, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing.
(d) We express no opinion with respect to indemnification or
contribution obligations which contravene public policy.
G-2
We are members of the Bar of the State of Illinois and do not purport
to be experts on, or to express any opinions herein concerning, any law
other than the laws of the State of Illinois.
This opinion is furnished by us as counsel to the Agent in connection
with the Credit Agreement and the transactions contemplated thereby and is
solely for the benefit of the Agent and the Banks, and this opinion may not
be relied upon for any other purpose or by any other Person.
Very truly yours,
XXXXX, XXXXX & XXXXX
G-3
EXHIBIT H
INVITATION FOR COMPETITIVE BIDS
Via Facsimile
To the Banks Listed on Schedule A attached hereto:
Ladies and Gentlemen:
Reference is made to that certain Multicurrency Credit Agreement dated
as of October 23, 1997 (as amended from time to time, the "Credit
Agreement"), among Applied Power Inc., Applied Power Europe S.A., and the
Banks party thereto, and Bank of America National Trust and Savings
Association, as Agent for the Banks (the "Agent"). Capitalized terms used
herein have the meanings specified in the Credit Agreement.
Pursuant to Section 2.7(b) of the Credit Agreement, you are hereby
invited to submit offers to make Bid Loans to the Company based on the
following specifications:
1. Borrowing date: _______________, 199_;
2. Aggregate amount requested by the Company:
$___________________;
3. Interest Period[s]: ____________________, [________________] and
[________________].
All Competitive Bids must be in the form of Exhibit J to the Credit
Agreement and must be received by the Agent no later than 6:30 a.m. (San
Francisco time) on ___________, 199_.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
H-1
By: _____________________________
Title: __________________________
H-2
Schedule A
List of Banks
[Bank]
Facsimile: (___) ___-____
[Bank]
Facsimile: (___) ___-____
[Bank]
Facsimile: (___) ___-____
[Bank]
Facsimile: (___) ___-____
[Bank]
Facsimile: (___) ___-____
H-3
EXHIBIT I
COMPETITIVE BID REQUEST
________________, 199_
Bank of America National Trust
and Savings Association,
as Agent
[1455 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Agency Management Services #5596]
Ladies and Gentlemen:
Reference is made to the Multicurrency Credit Agreement dated as of
October 23, 1997 (as amended from time to time, the "Credit Agreement"), by
and among Applied Power Inc., Applied Power Europe S.A., and the Banks party
thereto, and Bank of America National Trust and Savings Association, as
Agent for the Banks (the "Agent"). Capitalized terms used herein have the
meanings specified in the Credit Agreement.
This is a Competitive Bid Request for Bid Loans pursuant to Section 2.7
of the Credit Agreement as follows:
(i) The Business Day of the proposed Bid Borrowing is ______________,
199_.
(ii) The aggregate amount of the proposed Bid Borrowing is
$___________________.
(iii) The Interest Period[s] for the Bid Loans comprised in the
Borrowing shall be _______________, [_________________] and
[___________________].
APPLIED POWER INC.
I-1
By: _____________________
Title: __________________
I-2
EXHIBIT J
FORM OF COMPETITIVE BID
________________, _____
Bank of America National Trust
and Savings Association,
as Agent
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Agency Management Services #5596
Ladies and Gentlemen:
Reference is made to the Multicurrency Credit Agreement dated as of
October 23, 1997 (as amended from time to time, the "Credit Agreement"), by
and among Applied Power Inc., Applied Power Europe S.A., and the Banks party
thereto, and Bank of America National Trust and Savings Association, as
Agent for the Banks (the "Agent"). Capitalized terms used herein have the
meanings specified in the Credit Agreement.
In response to the Competitive Bid Request of the Company dated
_____________, 199_ and in accordance with Section 2.7(c)(ii) of the Credit
Agreement, the undersigned Bank offers to make [a] Bid Loan[s] thereunder in
the following principal amount[s] at the following interest rates for the
following Interest Period[s]:
Date of Borrowing: ________________, 199_
Aggregate Maximum Bid Amount: $__________________
Principal Principal Principal
Amount $_________ Amount $_________ Amount $_________
Interest: Interest: Interest:
[Absolute [Absolute [Absolute
Rate __%, __%, __%] Rate __%, __%, __%] Rate __%, __%, __%]
J-1
Interest Interest Interest
Period __________ Period __________ Period __________
[By accepting this Bid Loan, the Company agrees that it shall not,
directly or indirectly, use any portion of the proceeds of this Bid Loan (i)
knowingly to purchase Ineligible Securities from the Arranger during any
period in which the Arranger makes a market in such Ineligible Securities,
(ii) knowingly to purchase during the underwriting or placement period
Ineligible Securities being underwritten or privately placed by the
Arranger, or (iii) to make payments of principal placed by the Arranger, or
(iii) to make payments of principal or interest on Ineligible Securities
underwritten or privately placed by the Arranger and issued by or for the
benefit of the Company or any Affiliate of the Company.] [This paragraph is
to be used ONLY by BofA NT&SA, when applicable, upon submission of a
Competitive Bid.]
[NAME OF BANK]
By: _____________________
Title: __________________
J-2
EXHIBIT K
GUARANTY
--------
THIS GUARANTY (this "Guaranty"), dated as of October 23, 1997, made by
Versa Technologies, Inc., a Delaware corporation (the "Guarantor"), in favor
of each of the Lender Parties (as defined below).
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of October 23, 1997
(together with all amendments and other modifications, if any, from time to
time thereafter made thereto, the "Credit Agreement"), among Applied Power
Inc., a Wisconsin corporation (the "Company"), Applied Power Europe S.A., a
French corporation ( APSA; together with the Company, the Borrowers ), the
various commercial lending institutions (individually a "Lender" and
collectively the "Lenders") as are, or may from time to time become, parties
thereto and Bank of America National Trust and Savings Association, as agent
(together with any successor(s) thereto in such capacity, the "Agent") for the
Lenders, the Lenders have extended Commitments to make Loans to the Borrowers;
and
WHEREAS, as a condition precedent to the making of the initial Loans
under the Credit Agreement, the Guarantor is required to execute and deliver
this Guaranty; and
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial direct and indirect
benefits from the Loans made from time to time to the Borrowers by the Lenders
pursuant to the Credit Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of which
is hereby acknowledged, and in order to induce the Lenders to make Loans
(including the initial Loans) to the Borrowers pursuant to the Credit
Agreement, the Guarantor agrees, for the benefit of each Lender Party,
K-1
as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Terms. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable
to the singular and plural forms thereof):
"Agent" is defined in the first recital.
"Borrowers" is defined in the first recital.
"Credit Agreement" is defined in the first recital.
"Guarantor" is defined in the preamble.
"Guaranty" is defined in the preamble.
"Lender" is defined in the first recital.
"Lender Party" means, as the context may require, any Lender or the
Agent and each of its respective successors, transferees and assigns.
"Lenders" is defined in the first recital.
"Taxes" is defined in clause (a) of Section 2.8.
SECTION 1.2 Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms used in this
Guaranty, including its preamble and recitals, have the meanings provided in
the Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1 Guaranty. The Guarantor hereby absolutely, unconditionally
and irrevocably
K-2
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise, of all Obligations of the Borrowers now or hereafter existing under
the Credit Agreement, the Notes and each other Loan Document to which either
Borrower is or may become a party, whether for principal, interest, fees,
expenses or otherwise (including all such amounts which would become due but
for the operation of the automatic stay under Section 362(a) of the United
States Bankruptcy Code, 11 U.S.C. Section 362(a), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C.
Section 502(b) and Section 506(b)), and
(b) indemnifies and holds harmless each Lender Party and each
holder of a Note for any and all costs and expenses (including reasonable
attorneys fees and expenses) incurred by such Lender Party or such holder, as
the case may be, in enforcing any rights under this Guaranty;
provided, however, that the Guarantor shall only be liable under this Guaranty
for the maximum amount of such liability that can be hereby incurred without
rendering this Guaranty, as it relates to the Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and
not for any greater amount. This Guaranty constitutes a guaranty of payment
when due and not of collection, and the Guarantor specifically agrees that it
shall not be necessary or required that any Lender Party or any holder of any
Note exercise any right, assert any claim or demand or enforce any remedy
whatsoever against either Borrower (or any other Person) before or as a
condition to the obligations of the Guarantor hereunder.
SECTION 2.2 Acceleration of Guaranty. The Guarantor agrees that, in the
event of the dissolution or insolvency of the Guarantor, or the inability or
failure of the Guarantor to pay debts as they become due, or an assignment by
the Guarantor for the benefit of creditors, or the commencement of any case or
proceeding in respect of the Guarantor under any bankruptcy, insolvency or
similar laws, and if such event shall occur at a time when any of the
Obligations of the Borrowers may not then be due and payable, the Guarantor
will pay to the Lenders forthwith the full amount which would be payable
hereunder by the Guarantor if all such Obligations were then due and payable.
K-3
SECTION 2.3 Guaranty Absolute, etc. This Guaranty shall in all respects
be a continuing, absolute, unconditional and irrevocable guaranty of payment,
and shall remain in full force and effect until all Obligations of the
Borrowers have been paid in full, all obligations of the Guarantor hereunder
shall have been paid in full and all Commitments shall have terminated. The
Guarantor guarantees that the Obligations of the Borrowers will be paid
strictly in accordance with the terms of the Credit Agreement and each other
Loan Document under which they arise, regardless of any law, regulation or
order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of any Lender Party or any holder of any Note with respect
thereto. The liability of the Guarantor under this Guaranty shall be
absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the
Credit Agreement, any Note or any other Loan Document;
(b) the failure of any Lender Party or any holder of any Note
(i) to assert any claim or demand or to enforce any right or
remedy against either Borrower or any other Person (including any other
guarantor) under the provisions of the Credit Agreement, any Note, any other
Loan Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of, or collateral securing, any Obligations of either Borrower;
(c) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations of either Borrower, or any
other extension, compromise or renewal of any Obligation of either Borrower;
(d) any reduction, limitation, impairment or termination of any
Obligations of either Borrower for any reason, including any claim of waiver,
release, surrender, alteration or compromise, and shall not be subject to (and
the Guarantor hereby waives any right to or claim of) any
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defense or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence affecting,
any Obligations of the Borrowers or otherwise;
(e) any amendment to, rescission, waiver, or other modification
of, or any consent to departure from, any of the terms of the Credit
Agreement, any Note or any other Loan Document;
(f) any addition, exchange, release, surrender or non- perfection
of any collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by any Lender Party
securing any of the Obligations of the Borrowers; or
(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, either Borrower,
any surety or any guarantor.
SECTION 2.4 Reinstatement, etc. The Guarantor agrees that this Guaranty
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded
or must otherwise be restored by any Lender Party or any holder of any Note,
upon the insolvency, bankruptcy or reorganization of either Borrower or
otherwise, all as though such payment had not been made.
SECTION 2.5 Waiver, etc. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of
the Obligations of the Borrowers and this Guaranty and any requirement that
the Agent or any other Lender Party protect, secure, perfect or insure any
security interest or Lien, or any property subject thereto, or exhaust any
right or take any action against either Borrower or any other Person
(including any other guarantor) or entity or any collateral securing the
Obligations of either Borrower.
SECTION 2.6 Subrogation, etc. The Guarantor will not exercise any rights
which it may acquire by reason of any payment made hereunder, whether by way
of rights of subrogation, reimbursement or otherwise, until the prior
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payment, in full and in cash, of all Obligations of the Borrowers. Any amount
paid to the Guarantor on account of any payment made hereunder prior to the
payment in full of all Obligations of the Borrowers shall be held in trust for
the benefit of the Lender Parties and shall immediately be paid to the Agent
and credited and applied against the Obligations of the Borrowers, whether
matured or unmatured, in accordance with the terms of the Credit Agreement;
provided, however, that if
(a) the Guarantor has made payment to the Lender Parties of all
or any part of the Obligations of the Borrowers, and
(b) all Obligations of the Borrowers have been paid in full and
all Commitments have been permanently terminated,
each Lender Party agrees that, at the Guarantor's request, the Agent, on
behalf of the Lender Parties, will execute and deliver to the Guarantor
appropriate documents (without recourse and without representation or
warranty) necessary to evidence the transfer by subrogation to the Guarantor
of an interest in the Obligations of the Borrowers resulting from such payment
by the Guarantor. In furtherance of the foregoing, for so long as any
Obligations or Commitments remain outstanding, the Guarantor shall refrain
from taking any action or commencing any proceeding against the Borrowers (or
their successors or assigns, whether in connection with a bankruptcy
proceeding or otherwise) to recover any amounts in respect of payments made
under this Guaranty to any Lender Party.
SECTION 2.7 Successors, Transferees and Assigns; Transfers of Notes, etc.
This Guaranty shall:
(a) be binding upon the Guarantor, and its successors,
transferees and assigns; and
(b) inure to the benefit of and be enforceable by the Agent and
each other Lender Party.
Without limiting the generality of the foregoing clause (b), any Lender may
assign or otherwise transfer (in whole or in part) any Note or Loan held by it
to any other Person or entity, and such other Person or
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