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FORM 10-Q
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED DECEMBER 31, 2000
Commission file number 1-5318
KENNAMETAL INC.
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 25-0900168
(State or other jurisdiction (I.R.S. Employer
of incorporation) Identification No.)
WORLD HEADQUARTERS
1600 TECHNOLOGY WAY
P.O. BOX 231
LATROBE, PENNSYLVANIA 15650-0231
(Address of registrant's principal executive offices)
Registrant's telephone number, including area code: (724) 539-5000
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. YES [X] NO [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date:
Title Of Each Class Outstanding at February 1, 2001
- ---------------------------------------- -------------------------------
Capital Stock, par value $1.25 per share 30,451,022
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KENNAMETAL INC.
FORM 10-Q
FOR QUARTER ENDED DECEMBER 31, 2000
TABLE OF CONTENTS
Item No. Page
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PART I. FINANCIAL INFORMATION
1. Financial Statements:
Condensed Consolidated Statements of Income (Unaudited)
Three and six months ended December 31, 2000 and 1999.......................................... 1
Condensed Consolidated Balance Sheets (Unaudited)
December 31, 2000 and June 30, 2000............................................................ 2
Condensed Consolidated Statements of Cash Flows (Unaudited)
Six months ended December 31, 2000 and 1999.................................................... 3
Notes to Condensed Consolidated Financial Statements (Unaudited)............................... 4
2. Management's Discussion and Analysis of Financial Condition and Results of Operations.......... 10
3. Quantitative and Qualitative Disclosures about Market Risk..................................... 17
PART II. OTHER INFORMATION
4. Submission of Matters to a Vote of Security Holders............................................ 18
6. Exhibits and Reports on Form 8-K............................................................... 18
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
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KENNAMETAL INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME (UNAUDITED)
- -------------------------------------------------------------------------------
(in thousands, except per share data)
Three Months Ended Six Months Ended
December 31, December 31,
----------------------------- ------------------------------
2000 1999 2000 1999
---- ---- ---- ----
OPERATIONS
Net sales $440,521 $453,928 $891,226 $896,871
Cost of goods sold 273,583 285,061 555,635 564,675
-------- -------- -------- --------
Gross profit 166,938 168,867 335,591 332,196
Operating expense 121,823 126,702 250,247 249,189
Restructuring and asset impairment charge 812 3,981 2,347 3,981
Amortization of intangibles 6,147 6,597 12,470 13,600
-------- -------- -------- --------
Operating income 38,156 31,587 70,527 65,426
Interest expense 13,400 13,753 26,595 28,280
Other expense, net 1,200 510 2,657 252
-------- -------- -------- --------
Income before provision for income taxes
and minority interest 23,556 17,324 41,275 36,894
Provision for income taxes 9,128 7,709 16,304 16,418
Minority interest 904 1,104 1,506 2,052
-------- -------- -------- --------
Income before extraordinary loss and cumulative
effect of change in accounting principle 13,524 8,511 23,465 18,424
Extraordinary loss on early extinguishment of
debt, net of tax of $178 -- (267) -- (267)
Cumulative effect of change in accounting
principle, net of tax of $399 -- -- (599) --
-------- -------- -------- --------
Net income $ 13,524 $ 8,244 $ 22,866 $ 18,157
======== ======== ======== ========
PER SHARE DATA
Basic earnings per share before extraordinary loss and
cumulative effect of change in accounting principle $ 0.44 $ 0.28 $ 0.77 $ 0.61
Extraordinary loss per share -- (0.01) -- (0.01)
Cumulative effect of change in accounting
principle per share -- -- (0.02) --
-------- -------- -------- --------
Basic earnings per share $ 0.44 $ 0.27 $ 0.75 $ 0.60
======== ======== ======== ========
Diluted earnings per share before extraordinary loss and
cumulative effect of change in accounting principle $ 0.44 $ 0.28 $ 0.77 $ 0.61
Extraordinary loss per share -- (0.01) -- (0.01)
Cumulative effect of change in accounting
principle per share -- -- (0.02) --
-------- -------- -------- --------
Diluted earnings per share $ 0.44 $ 0.27 $ 0.75 $ 0.60
======== ======== ======== ========
Dividends per share $ 0.17 $ 0.17 $ 0.34 $ 0.34
======== ======== ======== ========
Basic weighted average shares outstanding 30,384 30,184 30,543 30,146
======== ======== ======== ========
Diluted weighted average shares outstanding 30,548 30,330 30,639 30,255
======== ======== ======== ========
See accompanying notes to condensed consolidated financial statements.
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KENNAMETAL INC.
CONDENSED CONSOLIDATED BALANCE SHEETS (UNAUDITED)
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(in thousands)
December 31, June 30,
2000 2000
---- ----
ASSETS
Current assets:
Cash and equivalents $ 18,293 $ 22,323
Marketable equity securities available-for-sale 16,006 27,614
Accounts receivable, less allowance for
doubtful accounts of $8,688 and $12,214 203,344 231,917
Inventories 389,460 410,885
Deferred income taxes 52,552 42,911
Other current assets 18,368 13,065
---------- ----------
Total current assets 698,023 748,715
---------- ----------
Property, plant and equipment:
Land and buildings 235,926 230,448
Machinery and equipment 746,032 720,556
Less accumulated depreciation (499,465) (452,220)
----------- ----------
Net property, plant and equipment 482,493 498,784
---------- ----------
Other assets:
Investments in affiliated companies 3,621 2,571
Intangible assets, less accumulated amortization
of $101,363 and $88,458 644,929 661,172
Other 32,486 29,879
---------- ----------
Total other assets 681,036 693,622
---------- ----------
Total assets $1,861,552 $1,941,121
========== ==========
LIABILITIES
Current liabilities:
Current maturities of long-term debt and capital leases $ 3,385 $ 3,855
Notes payable to banks 6,825 57,701
Accounts payable 102,217 118,908
Accrued vacation pay 29,094 28,217
Accrued income taxes 26,968 30,226
Accrued payroll 20,943 20,605
Other current liabilities 94,031 91,800
---------- ----------
Total current liabilities 283,463 351,312
---------- ----------
Long-term debt and capital leases, less current maturities 677,277 637,686
Deferred income taxes 31,261 31,727
Other liabilities 85,773 85,036
---------- ----------
Total liabilities 1,077,774 1,105,761
---------- ----------
Minority interest in consolidated subsidiaries 10,514 55,106
---------- ----------
SHAREOWNERS' EQUITY
Preferred stock, no par value; 5,000 shares authorized; none issued -- --
Capital stock, $1.25 par value; 70,000 shares authorized;
33,419 and 33,200 shares issued 41,773 41,500
Additional paid-in capital 343,796 335,314
Retained earnings 521,228 508,733
Treasury shares, at cost; 3,032 and 2,677 shares held (68,852) (55,236)
Unearned compensation (3,375) (2,814)
Accumulated other comprehensive loss (61,306) (47,243)
----------- ----------
Total shareowners' equity 773,264 780,254
---------- ----------
Total liabilities and shareowners' equity $1,861,552 $1,941,121
========== ==========
See accompanying notes to condensed consolidated financial statements.
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KENNAMETAL INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS (UNAUDITED)
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(in thousands)
Six Months Ended
December 31,
-------------------------------
2000 1999
---- ----
OPERATING ACTIVITIES
Net income $ 22,866 $ 18,157
Adjustments for noncash items:
Depreciation 36,595 37,685
Amortization 12,470 13,600
Restructuring and asset impairment charge 524 2,673
Cumulative effect of change in accounting principle, net of tax 599 --
Loss on early extinguishment of debt, net of tax -- 267
Other 869 3,541
Changes in certain assets and liabilities:
Accounts receivable 27,296 3,586
Proceeds from accounts receivable securitization 600 --
Inventories 17,695 13,894
Accounts payable and accrued liabilities (22,453) 20,335
Other (9,885) (288)
-------- ---------
Net cash flow from operating activities 87,176 113,450
-------- ---------
INVESTING ACTIVITIES
Purchases of property, plant and equipment (22,980) (21,676)
Disposals of property, plant and equipment 844 5,964
Purchase of subsidiary stock (42,628) --
Other (196) 405
-------- ---------
Net cash flow used for investing activities (64,960) (15,307)
-------- ---------
FINANCING ACTIVITIES
Net decrease in notes payable (693) (9,965)
Net increase (decrease) in revolver and other lines of credit (9,100) 39,100
Term debt borrowings 675 336
Term debt repayments (944) (121,629)
Dividend reinvestment and employee benefit and stock plans 9,862 4,549
Cash dividends paid to shareowners (10,371) (10,248)
Purchase of treasury stock (16,494) --
Other (805) (409)
-------- ---------
Net cash flow used for financing activities (27,870) (98,266)
-------- ---------
Effect of exchange rate changes on cash and equivalents 1,624 (27)
-------- ---------
CASH AND EQUIVALENTS
Net decrease in cash and equivalents (4,030) (150)
Cash and equivalents, beginning of year 22,323 17,408
-------- ---------
Cash and equivalents, end of period $ 18,293 $ 17,258
======== =========
SUPPLEMENTAL DISCLOSURES
Interest paid $ 27,741 $ 31,092
Income taxes paid 18,571 7,128
See accompanying notes to condensed consolidated financial statements.
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KENNAMETAL INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
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1. The condensed consolidated financial statements should be read in
conjunction with the Notes to Consolidated Financial Statements
included in the company's 2000 Annual Report. The condensed
consolidated balance sheet as of June 30, 2000 has been derived from
the audited balance sheet included in the company's 2000 Annual Report.
These interim statements are unaudited; however, management believes
that all adjustments necessary for a fair presentation have been made
and all adjustments are normal, recurring adjustments. The results for
the three and six months ended December 31, 2000 and 1999 are not
necessarily indicative of the results to be expected for a full fiscal
year. Unless otherwise specified, any reference to a "year" is to a
fiscal year ended June 30. Certain amounts in the prior years'
consolidated financial statements have been reclassified to conform
with the current year presentation.
2. On July 20, 2000, the company proposed to the Board of Directors of JLK
Direct Distribution Inc., an 83-percent owned subsidiary of the
company, to acquire the outstanding shares of JLK it does not already
own. On September 11, 2000, the company and JLK announced that they
entered into a definitive merger agreement for the company to acquire
all the outstanding minority shares. Pursuant to the agreement, JLK
agreed to commence a cash tender offer for all of its shares of Class A
Common Stock at a price of $8.75 per share. The tender offer commenced
on October 3, 2000 and expired on November 15, 2000 resulting in JLK
reacquiring the 4.3 million shares for $37.5 million. Following JLK's
purchase of shares in the tender offer, the company acquired the
remainder of the minority shares at the same price in a merger. The
company incurred transaction costs of $2.9 million, which were included
in the total cost of the transaction. JLK incurred costs of $2.0
million associated with the transaction, which were expensed as
incurred. The transaction was unanimously approved by the JLK Board of
Directors, including its special committee comprised of independent
directors of the JLK Board.
In July 2000, the company, JLK and the JLK directors (including one
former director) were named as defendants in several putative class
action lawsuits. The lawsuits seek an injunction, rescission, damages,
costs and attorney fees in connection with the company's proposal to
acquire the outstanding stock of JLK not owned by the company.
On November 3, 2000, the parties to the lawsuits entered into a
Memorandum of Understanding (MOU) with respect to a proposed settlement
of the lawsuits. The proposed settlement would provide for complete
releases of the defendants, as well as among other persons their
affiliates and representatives, and would extinguish and enjoin all
claims that have been, could have been or could be asserted by or on
behalf of any member of the class against the defendants which in any
manner relate to the allegations, facts, or other matters raised in the
lawsuits or which otherwise relate in any manner to the agreement, the
offer and the merger. The MOU also provides, among other matters, for
the payment by JLK of up to approximately $0.3 million in attorneys'
fees and expenses to plaintiffs' counsel. No payment is to be made for
liability or damages. The final settlement of the lawsuits, including
the amount of attorneys' fees and expenses to be paid, is subject to
the execution of a definitive stipulation of settlement and to court
approval.
3. Inventories are stated at lower of cost or market. Cost is determined
using the last-in, first-out (LIFO) method for a significant portion of
U.S. inventories and the first-in, first-out (FIFO) or average cost
methods for other inventories. The company used the LIFO method of
valuing its inventories for approximately 47 percent of total
inventories at December 31, 2000. Because inventory valuations under
the LIFO method are based on an annual determination of quantities and
costs as of June 30 of each year, the interim LIFO valuations are based
on management's projections of expected year-end inventory levels and
costs. Therefore, the interim financial results are subject to any
final year-end LIFO inventory adjustments.
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KENNAMETAL INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
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Inventories as of the balance sheet dates consisted of the following
(in thousands):
December 31, June 30,
2000 2000
---- ----
Finished goods $290,585 $306,334
Work in process and powder blends 95,137 96,101
Raw materials and supplies 33,448 35,707
-------- --------
Inventory at current cost 419,170 438,142
Less LIFO valuation (29,710) (27,257)
-------- --------
Total inventories $389,460 $410,885
======== ========
4. The company has been involved in various environmental cleanup and
remediation activities at several of its manufacturing facilities. In
addition, the company is currently named as a potentially responsible
party (PRP) at several Superfund sites in the United States. In
December 1999, the company recorded a remediation reserve of $3.0
million with respect to its involvement in these matters, which was
recorded as a component of operating expense. This represents
management's best estimate of its undiscounted future obligation based
on its evaluations and discussions with outside counsel and independent
consultants, and the current facts and circumstances related to these
matters. The company recorded this liability because certain events
occurred, including sufficient progress made by the government and the
PRPs in the identification of other PRPs and review of potential
remediation solutions, that clarified the level of involvement in these
matters by the company and its relationship to other PRPs. This led the
company to conclude that it was probable that a liability had been
incurred.
In addition to the amount currently reserved, the company may be
subject to loss contingencies related to these matters estimated to be
up to an additional $3.3 million. The company believes that such
undiscounted unreserved losses are reasonably possible but are not
currently considered to be probable of occurrence. The reserved and
unreserved liabilities could change substantially in the near term due
to factors such as the nature and extent of contamination, changes in
remedial requirements, technological changes, discovery of new
information, the financial strength of other PRPs and the
identification of new PRPs.
The company maintains a Corporate Environmental, Health and Safety
(EH&S) Department, as well as an EH&S Policy Committee, to ensure
compliance with environmental regulations and to monitor and oversee
remediation activities. In addition, the company has established an
EH&S administrator at its domestic manufacturing facilities. The
company's financial management team periodically meets with members of
the Corporate EH&S Department and the Corporate Legal Department to
review and evaluate the status of environmental projects and
contingencies. On a quarterly basis, management establishes or adjusts
financial provisions and reserves for environmental contingencies in
accordance with Statement of Financial Accounting Standard (SFAS) No.
5, "Accounting for Contingencies."
5. For purposes of determining the number of dilutive shares outstanding,
weighted average shares outstanding for basic earnings per share
calculations were increased due to the dilutive effect of unexercised
stock options by 164,457 and 145,834 for the three months ended
December 31, 2000 and 1999, respectively and 95,951 and 108,417 for the
six months ended December 31, 2000 and 1999, respectively.
Earnings per share amounts for each quarter are required to be computed
independently and, therefore, may not equal the amount computed for a
six-month period.
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KENNAMETAL INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
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6. Comprehensive income for the three and six months ended December 31,
2000 and 1999 is as follows (in thousands):
Three Months Ended Six Months Ended
December 31, December 31,
------------------------- -------------------------
2000 1999 2000 1999
---- ---- ---- ----
Net income $13,524 $ 8,244 $22,866 $18,157
Cumulative effect of change in accounting
principle, net of tax -- -- 1,571 --
Unrealized loss on derivatives designated and
qualified as cash flow hedges, net of tax (1,838) -- (2,140) --
Reclassification of unrealized gains or losses
on matured derivatives, net of tax (455) -- (513) --
Unrealized loss on marketable equity securities
available-for-sale, net of tax (4,253) (1,328) (5,871) (3,326)
Minimum pension liability adjustment, net of tax (46) 73 1 47
Foreign currency translation adjustments 3,016 (6,968) (7,111) (2,906)
------- ------- ------- -------
Comprehensive income $ 9,948 $ 21 $ 8,803 $11,972
======= ======= ======= =======
The components of accumulated other comprehensive loss consist of the
following (in thousands):
December 31, June 30,
2000 2000
---- ----
Unrealized gain on marketable equity securities
available-for-sale, net of tax $ 2,792 $ 8,663
Unrealized losses on derivatives designated and
qualified as cash flow hedges, net of tax (1,082) --
Minimum pension liability adjustment, net of tax (849) (850)
Foreign currency translation adjustments (62,167) (55,056)
-------- --------
Total accumulated other comprehensive loss $(61,306) $(47,243)
======== ========
7. On July 1, 2000, SFAS No. 133, "Accounting for Derivative Instruments
and Hedging Activities," was adopted resulting in the recording of
current assets of $1.6 million, long-term assets of $1.4 million,
current liabilities of $1.3 million, long-term liabilities of $0.7
million, a decrease in accumulated other comprehensive loss of $1.6
million, net of tax, and a loss from the cumulative effect from the
change in accounting principle of $0.6 million, net of tax.
Forward contracts, purchased options and range forward contracts,
designated as cash flow hedges, hedge anticipated cash flows from
cross-border intercompany sales of product and services. These
contracts mature at various times through October 2001. Gains and
losses realized on these contracts at maturity are recorded in
accumulated other comprehensive loss, net of tax, and are recognized as
a component of other expense, net when the underlying sales of product
or services are recognized into earnings. The company recognized
expense of $0.1 million and $0.2 million, as a component of other
expense, net, for the three and six months ended December 31, 2000,
respectively, related to hedge ineffectiveness. Floating-to-fixed
interest rate swap agreements, designated as cash flow hedges, hedge
the company's floating rate debt and mature at various times through
June 2003. The fair value of these contracts is recorded in the balance
sheet, with the offset to accumulated other comprehensive loss, net of
tax. Forward contracts hedging significant cross-border intercompany
loans are considered other derivatives and therefore, not eligible for
hedge accounting. These contracts are recorded at fair value in the
balance sheet, with the offset to other expense, net. Based upon
foreign exchange and interest rates at December 31, 2000, the company
expects to recognize net current assets of $0.4 million into earnings
in the next 12 months related to all derivative instruments.
In December 2000, the company entered into Euro-denominated forward
contracts to hedge the foreign exchange exposure in the company's net
investment in Euro-based subsidiaries. The company's objective for
entering into these contracts is to reduce its exposure to fluctuations
in accumulated other comprehensive loss due to exchange rate
fluctuations. These forward contracts had a notional amount of EUR
212.0 million and matured in January 2001. At December 31, 2000, the
company recorded the fair value of these contracts, net of tax, of $4.1
million as a reduction of the cumulative translation adjustment.
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KENNAMETAL INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
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8. In the September 2000 quarter, the company's management began to
implement a business improvement plan in the JLK/Industrial Supply
segment. For the three and six months ended December 31, 2000, the
company recorded a restructuring and asset impairment charge of $0.2
million and $1.6 million, respectively, associated with the closure of
eight underperforming satellite locations and $0.5 million and $0.7
million, respectively, for severance for certain individuals. This
includes a $0.3 million noncash writedown of the book value of certain
property, plant and equipment, net of salvage value, that management
determined would no longer be utilized in ongoing operations. The costs
accrued for these plans were based on management estimates using the
latest information available at the time that the accrual was
established. Through December 31, 2000, the costs charged against the
accrual for satellite closures and employee severance were $0.4 million
and $0.4 million, respectively. The company incurred period costs of
$0.1 million related to these initiatives in the December 2000 quarter
which were included in operating expense as incurred. The company
continues to review its business strategies and pursue other
cost-reduction activities in all business segments, some of which
could result in future charges.
In 2000, the company announced plans to close, consolidate or downsize
several plants, warehouses and offices, and associated work force
reductions as part of its overall plan to increase asset utilization
and financial performance, and to reposition the company to become the
premier tooling solutions supplier. The costs charged against the
restructuring accrual for the 2000 programs as of December 31, 2000
were as follows (in thousands):
June 30, Cash December 31,
2000 Expenditures Adjustments 2000
---- ------------ ----------- ----
Employee severance $2,533 $(1,830) $(52) $ 651
Facility rationalizations 3,518 (255) -- 3,263
------ ------- ---- ------
Total $6,051 $(2,085) $(52) $3,914
====== ======= ==== ======
Through December 31, 2000, the company incurred period costs of $0.1
million related to these initiatives which were included in cost of
goods sold as incurred. The adjustment to the accrual for employee
severance is due to a reduction in actual amounts paid to certain
individuals compared to what was initially anticipated. This adjustment
was recorded as a component of restructuring and asset impairment
charge.
In 1999, management implemented restructuring plans including several
programs to reduce costs, improve operations and enhance customer
satisfaction. Accruals for these 1999 programs were $1.3 million at
December 31, 2000. Costs charged against the accrual for the voluntary
early retirement plan and the plant closure through December 31, 2000
were $0.2 million and $0.1 million, respectively.
9. In September 2000, management reorganized the financial reporting of
its operations to focus on global business units consisting of
Metalworking Services & Solutions Group (MSSG), Advanced Materials
Solutions Group (AMSG) and JLK/Industrial Supply, and corporate
functional shared services. The results for all periods presented have
been restated to conform to the new reporting structure. The company's
external sales, intersegment sales and operating income by segment for
the three and six months ended December 31, 2000 and 1999 are as
follows (in thousands):
Three Months Ended Six Months Ended
December 31, December 31,
----------------------------- -----------------------------
2000 1999 2000 1999
---- ---- ---- ----
External sales:
MSSG $244,065 $253,450 $490,881 $495,614
AMSG 83,613 82,936 170,392 167,736
JLK/Industrial Supply 112,843 117,542 229,953 233,521
-------- -------- -------- --------
Total external sales $440,521 $453,928 $891,226 $896,871
======== -------- ======== ========
Intersegment sales:
MSSG $ 25,274 $ 28,567 $ 49,240 $ 70,470
AMSG 6,498 5,624 13,672 12,228
JLK/Industrial Supply 948 2,187 4,289 4,523
-------- -------- -------- --------
Total intersegment sales $ 32,720 $ 36,378 $ 67,201 $ 87,221
======== ======== ======== ========
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KENNAMETAL INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
- --------------------------------------------------------------------------------
Three Months Ended Six Months Ended
December 31, December 31,
------------------------------- ------------------------------
2000 1999 2000 1999
---- ---- ---- ----
Total sales:
MSSG $269,339 $282,017 $540,121 $566,084
AMSG 90,111 88,560 184,064 179,964
JLK/Industrial Supply 113,791 119,729 234,242 238,044
-------- -------- -------- --------
Total sales $473,241 $490,306 $958,427 $984,092
======== ======== ======== ========
Operating income:
MSSG $ 31,014 $ 26,049 $ 58,936 $ 55,306
AMSG 8,735 7,941 19,922 18,564
JLK/Industrial Supply 4,352 7,089 4,904 14,068
Corporate and eliminations (5,945) (9,492) (13,235) (22,512)
-------- -------- -------- --------
Total operating income $ 38,156 $ 31,587 $ 70,527 $ 65,426
======== ======== ======== ========
JLK/Industrial Supply operating income for the three and six months
ended December 31, 2000 was reduced by $0.7 million and $2.3 million,
respectively, related to restructuring and asset impairment charges,
and $0.3 million and $2.0 million, respectively, of costs primarily
related to the tender offer to acquire the outstanding shares of JLK.
MSSG operating income for the three and six months ended December 31,
1999 was reduced by $3.5 million related to asset impairment charges,
and costs associated with employee severance and product and facility
rationalizations. AMSG operating income for the three and six months
ended December 31, 1999 was reduced by $0.4 million related to asset
impairment charges and costs associated with employee severance.
Corporate operating income for the three and six months ended December
31, 1999 was reduced by $3.0 million and $0.2 million related to
environmental remediation costs and costs associated with employee
severance, respectively. MSSG operating income for the six months ended
December 31, 1999 includes a gain of $4.7 million on the sale of
inventory to the JLK/Industrial Supply segment. The elimination of this
gain from consolidated results is included in Corporate and
eliminations.
The company's assets by segment at December 31, 2000 and June 30, 2000
are as follows (in thousands):
December 31, 2000 June 30, 2000
----------------- -------------
Assets:
MSSG $ 940,125 $ 978,188
AMSG 457,796 475,741
JLK/Industrial Supply 293,265 287,682
Corporate 170,366 199,510
---------- ----------
Total assets $1,861,552 $1,941,121
========== ==========
10. In September 2000, SFAS No. 140, "Accounting for Transfers and
Servicing of Financial Assets and Extinguishments of Liabilities - a
replacement of FASB Statement No. 125" was issued. SFAS No. 140 revises
criteria for accounting for asset securitizations, other
financial-asset transfers, and collateral and introduces new
disclosures, but otherwise carries forward most of SFAS No. 125's
provisions without amendment. SFAS No. 140 has an immediate impact
through new disclosure requirements and amendments of the collateral
provisions of SFAS No. 125. These changes must be applied for fiscal
years ending after December 15, 2000. The company is currently
evaluating the effects of SFAS No. 140 and is preparing a plan for
implementation.
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KENNAMETAL INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
- --------------------------------------------------------------------------------
In September 2000, the Emerging Issues Task Force (EITF) finalized EITF
Issue 00-10, "Accounting for Shipping and Handling Fees and Costs", to
address the diversity in the income statement classification of amounts
charged to customers for shipping and handling, as well as for costs
incurred related to shipping and handling. The Issue requires all
amounts billed to a customer in a sale transaction related to shipping
and handling be classified as revenue. The Issue further requires
companies to adopt and disclose a policy on the accounting for shipping
and handling costs. Such costs may not be netted against revenue,
however, disclosure of the amount and classification of these costs is
required. This Issue becomes effective for the June 2001 quarter and
should not affect reported earnings, however, it may result in the
reclassification of amounts in previously reported financial
statements. The company is currently evaluating the effects of this
Issue and is preparing a plan for implementation.
11. On December 20, 2000, the company entered into a EUR 212.0 million
Euro-denominated revolving credit facility (Euro Credit Agreement) to
hedge the foreign exchange exposure in the company's net investment in
Euro-based subsidiaries, to take advantage of Euro-based borrowing
rates that are currently lower than the borrowing rates available to
the company under the Bank Credit Agreement and to diversify the
company's interest rate exposure. Amounts borrowed under the Euro
Credit Agreement are to be used to repay indebtedness under the Bank
Credit Agreement, and to the extent the Bank Credit Agreement is
repaid, for working capital and general corporate purposes. At December
31, 2000, the Euro Credit Agreement bears interest at EURIBOR plus
1.00%, includes a commitment fee of 0.275% of the unused balance and
matures in December 2003.
There were no amounts outstanding under the Euro Credit Agreement at
December 31, 2000. On January 8, 2001, the company borrowed EUR 212.0
million under this facility to meet its obligation under the
Euro-denominated forward contracts. The proceeds from the
Euro-denominated forward contracts of $191.1 million were used to repay
amounts borrowed under the Bank Credit Agreement. Subsequently, the
availability under the Bank Credit Agreement was permanently reduced to
$700.0 million.
The company has designated the foreign exchange exposure under the Euro
Credit Agreement as a hedge of the company's net investment in
Euro-based subsidiaries. The company's objective for this designation
is to reduce its exposure to fluctuations in accumulated other
comprehensive loss due to exchange rate fluctuations. Future changes in
the value of borrowings under the Euro Credit Agreement due to exchange
rate fluctuations will be recorded as a component of cumulative
translation adjustment, net of tax.
9
12
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
- --------------------------------------------------------------------------------
RESULTS OF OPERATIONS
SALES
Sales for the December 2000 quarter were $440.5 million, a decline of three
percent from $453.9 million in the year-ago quarter. Sales increased four
percent excluding unfavorable foreign currency effects of four percent and fewer
workdays in the December 2000 quarter. Sales benefited from broad-based growth
in Europe despite weakening in North American end markets, particularly
automotive.
Sales for the six months ended December 31, 2000 were $891.2 million compared to
$896.9 million in the same period a year ago, a decline of one percent. Sales
increased five percent excluding unfavorable foreign currency effects of three
percent and fewer workdays in the six months ended December 31, 2000. Sales were
affected by the factors mentioned above.
GROSS PROFIT MARGIN
The consolidated gross profit margin for the December 2000 quarter was 37.9
percent, a 70 basis point improvement compared with 37.2 percent in the prior
year. This increase is the result of implementing lean manufacturing techniques,
resulting in ongoing reductions in manufacturing variances coupled with pricing
discipline.
Consolidated gross profit margin was 37.7 percent for the six months ended
December 31, 2000, compared with 37.0 percent in same period a year ago. Period
costs included in gross profit in 2001 and 2000 were $0.1 million related to the
Kingswinford plant downsizing and $2.0 million related to the Solon, Ohio plant
closure, respectively. Excluding these costs, gross profit margin was affected
by the factors mentioned above.
OPERATING EXPENSE
Consolidated operating expense for the December 2000 quarter was $121.8 million,
including $0.3 million of costs primarily related to the tender offer to acquire
the outstanding shares of JLK, compared to $126.7 million in the same period a
year ago. Operating expense for the December 1999 quarter included a $3.0
million charge for environmental remediation costs. Excluding these costs,
operating expense declined two percent due to cost reduction efforts coupled
with productivity programs aimed at reducing the overall cost structure. Despite
the decline, the company incurred costs of approximately $4.0 million on
investments for strategic initiatives, new sales and marketing programs,
productivity programs and the company's e-commerce initiative.
For the six months ended December 31, 2000, operating expense was $250.2
million, including $2.0 million of costs related primarily to the JLK tender
offer, compared to $249.2 million for the same period a year ago, which includes
a $3.0 million charge for environmental remediation costs. Operating expense
increased due to the investment in strategic initiatives, partially offset by
continued cost reduction efforts.
10
13
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (CONTINUED)
- --------------------------------------------------------------------------------
RESTRUCTURING AND ASSET IMPAIRMENT CHARGE
In the September 2000 quarter, the company's management began to implement a
business improvement plan in the JLK/Industrial Supply segment. Management
expects to incur total costs of $15 to $20 million associated with this plan.
For the three and six months ended December 31, 2000, the company recorded a
restructuring and asset impairment charge of $0.2 million and $1.6 million,
respectively, associated with the closure of eight underperforming satellite
locations and $0.5 million and $0.7 million, respectively, for severance for
certain individuals. This includes a $0.3 million noncash writedown of the book
value of certain property, plant and equipment, net of salvage value, that
management determined would no longer be utilized in ongoing operations. The
costs accrued for these plans were based on management estimates using the
latest information available at the time that the accrual was established.
Through December 31, 2000, the costs charged against the accrual for satellite
closures and employee severance were $0.4 million and $0.4 million,
respectively. The company incurred period costs of $0.1 million related to these
initiatives in the December 2000 quarter which were included in operating
expense as incurred. Annualized benefits of $1.0 million are expected to be
realized beginning in the June 2001 quarter. The company continues to review its
business strategies and pursue other cost-reduction activities in all business
segments, some of which could result in future charges.
In 2000, the company announced plans to close, consolidate or downsize several
plants, warehouses and offices, and associated work force reductions as part of
its overall plan to increase asset utilization and financial performance, and to
reposition the company to become the premier tooling solutions supplier. The
costs charged against the restructuring accrual for the 2000 programs as of
December 31, 2000 were as follows (in thousands):
June 30, Cash December 31,
2000 Expenditures Adjustments 2000
---- ------------ ----------- ----
Employee severance $2,533 $(1,830) $(52) $ 651
Facility rationalizations 3,518 (255) -- 3,263
------ ------- ---- ------
Total $6,051 $(2,085) $(52) $3,914
====== ======= ==== ======
Through December 31, 2000, the company incurred period costs of $0.1 million
related to these initiatives which were included in cost of goods sold as
incurred. The adjustment to the accrual for employee severance is due to a
reduction in actual amounts paid to certain individuals compared to what was
initially anticipated. This adjustment was recorded as a component of
restructuring and asset impairment charge.
In 1999, management implemented restructuring plans including several programs
to reduce costs, improve operations and enhance customer satisfaction. Accruals
for these 1999 programs were $1.3 million at December 31, 2000. Costs charged
against the accrual for the voluntary early retirement plan and the plant
closure through December 31, 2000 were $0.2 million and $0.1 million,
respectively.
INTEREST EXPENSE
Interest expense for the December 2000 quarter declined to $13.4 million due to
reduced debt levels, partially offset by higher borrowing rates. Average U.S.
borrowing rates of 7.48 percent were up 89 basis points from a year ago due to
Federal Reserve rate increases.
Interest expense for the six months ended December 31, 2000 declined to $26.6
million due to reduced debt levels, partially offset by higher borrowing rates
as the average U.S. borrowing rate was 7.46 percent in 2001, compared to 6.49
percent for 2000.
OTHER EXPENSE, NET
Other expense for the December 2000 and 1999 quarters included fees of $1.6
million and $1.3 million, respectively, incurred in connection with the accounts
receivable securitization program. In 1999, this was partially offset by gains
from the sale of miscellaneous underutilized assets and dividend income. For the
six months ended December 31, 2000 and 1999, other expense included fees of $3.2
million and $2.5 million, respectively, related to the accounts receivable
securitization program. In the six months ended December 31, 1999, this was
partially offset by a net one-time gain of $1.4 million from the sale of
miscellaneous underutilized assets.
11
14
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (CONTINUED)
- --------------------------------------------------------------------------------
INCOME TAXES
The effective tax rate for the three and six months ended December 31, 2000 was
38.8 percent and 39.5 percent, respectively, compared to an effective tax rate
of 44.5 percent for the comparable periods in the prior year. The effective rate
for the December 2000 quarter reflects the latest full-year income projections
and regulatory changes. The decline in the effective tax rate is attributable to
successful tax planning initiatives in Europe as well as the extension of the
Foreign Sales Corporation tax benefit in the United States.
EXTRAORDINARY LOSS ON EARLY EXTINGUISHMENT OF DEBT
In November 1999, the company repaid its term loan under the Bank Credit
Agreement. This resulted in an acceleration of the write-off of deferred
financing fees of $0.4 million, which has been recorded as an extraordinary item
of $0.3 million, net of tax.
CHANGE IN ACCOUNTING PRINCIPLE
On July 1, 2000, SFAS No. 133 was adopted, resulting in the recording of a loss
from the cumulative effect from the change in accounting principle of $0.6
million, net of tax, or $0.02 per share. The loss primarily relates to the
write-down of previously paid option premiums.
NET INCOME
Net income for the quarter ended December 31, 2000 was $13.5 million, or $0.44
per share, compared to net income of $8.2 million, or $0.27 per share, in the
same quarter last year. Excluding special charges in both quarters, net income
was $14.2 million, or $0.47 per share in the December 2000 quarter, compared to
$12.4 million, or $0.41 per share, in the same quarter last year. The earnings
improvement is attributable to higher gross margins reflecting improved
efficiency from lean manufacturing techniques and price discipline, and a
reduction in the company's effective tax rate. Special charges in the December
2000 quarter of $1.1 million, or $0.03 per share, related to the JLK business
improvement plan and costs associated with the tender offer to acquire the
outstanding shares of JLK. Special charges in the December 1999 quarter were
$7.5 million, or $0.14 per share, related to business improvement programs in
the core businesses, a charge for environmental remediation and an extraordinary
loss on early extinguishment of debt.
Net income for the six months ended December 31, 2000 was $22.9 million, or
$0.75 per share, compared to $18.2 million, or $0.60 per share, in the same
period last year and was affected by the same factors mentioned above.
METALWORKING SERVICES & SOLUTIONS GROUP
Three Months Ended Six Months Ended
December 31, December 31,
---------------------------- ----------------------------
2000 1999 2000 1999
---- ---- ---- ----
External sales $244,065 $253,450 $490,881 $495,614
Intersegment sales 25,274 28,567 49,240 70,470
Operating income 31,014 26,049 58,936 55,306
MSSG sales increased two percent compared to the December 1999 quarter,
excluding unfavorable foreign exchange effects of six percent due to the
stronger U.S. dollar. Most major markets experienced year-over-year growth, with
particular strength in Europe. In North America, sales were down three percent
as gains in the machine tool builder and light engineering markets were more
than offset by a decline in demand in the automotive market, driven by increased
December shutdowns at customer plants. In Europe, sales increased nine percent,
in local currency, due to broad-based growth reflecting strength in the machine
tool and engineering markets. Demand in the European automotive end market
remained strong, though at a diminished rate compared to the prior quarter.
Sales in Asia continued to grow, up three percent compared to a year ago.
12
15
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (CONTINUED)
- --------------------------------------------------------------------------------
Operating income was $31.0 million compared to $26.0 million last year. The
December 1999 quarter results were reduced by $3.5 million related to asset
impairment charges, and costs associated with employee severance and product and
facility rationalizations. Additionally, the company incurred period costs of
$0.6 million in the December 1999 quarter related to the Solon plant closing,
which were included in cost of goods sold as incurred. Excluding these charges,
operating income increased $0.9 million due primarily to improved manufacturing
performance from operational improvement programs and lean manufacturing
techniques.
For the six months ended December 31, 2000, sales increased three percent
compared to the prior year, excluding unfavorable foreign exchange effects of
four percent, due to the same factors mentioned above. Operating income
increased to $58.9 million and was affected by the same factors as mentioned
above. Additionally, the results for the six months ended December 31, 1999
include a gain of $4.7 million on the sale of $12.7 million of inventory to the
JLK/Industrial Supply segment. This purchase by JLK was necessary in order for
JLK to have access to Kennametal's branded inventory subsequent to the new
business system implementation. The company incurred period costs of $0.1
million related to the Kingswinford plant downsizing in the six months ended
December 31, 2000, compared to $2.0 million related to the Solon plant closing
in the six months ended September 30, 1999, both of which were included in cost
of goods sold as incurred.
ADVANCED MATERIALS SOLUTIONS GROUP
Three Months Ended Six Months Ended
December 31, December 31,
--------------------------- ----------------------------
2000 1999 2000 1999
---- ---- ---- ----
External sales $83,613 $82,936 $170,392 $167,736
Intersegment sales 6,498 5,624 13,672 12,228
Operating income 8,735 7,941 19,922 18,564
AMSG sales increased five percent, from the December 1999 quarter, excluding
unfavorable foreign exchange effects of four percent. Continued strength in
electronics, driven by strong demand for computer circuit boards and cellular
phones, and higher demand for products used for oil and gas exploration,
contributed to the growth in sales. This was partially offset by soft demand for
construction tools in North America as highway funds are being spent on
infrastructure programs and new roads.
Operating income increased to $8.7 million compared to $7.9 million a year ago
due to margin improvement in the energy and engineered products businesses from
higher sales levels, partially offset by weakness in the high-margin
construction tool business and operating inefficiencies in the electronics
business due to accelerated growth. AMSG operating income for the three months
ended December 31, 1999 was reduced by $0.4 million related to asset impairment
charges and costs associated with employee severance.
For the six months ended December 31, 2000, AMSG sales increased five percent
excluding unfavorable foreign currency effects of three percent due to the
factors mentioned above. Operating income increased to $19.9 million due to the
factors mentioned above. Additionally, operating income for the six months ended
December 31, 1999 was reduced by the restructuring and asset impairment charges
of $0.4 million as mentioned above.
13
16
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (CONTINUED)
- --------------------------------------------------------------------------------
JLK/INDUSTRIAL SUPPLY
Three Months Ended Six Months Ended
December 31, December 31,
---------------------------- ----------------------------
2000 1999 2000 1999
---- ---- ---- ----
External sales $112,843 $117,542 $229,953 $233,521
Intersegment sales 948 2,187 4,289 4,523
Operating income 4,352 7,089 4,904 14,068
Industrial Supply sales declined three percent, excluding unfavorable foreign
exchange effects of one percent, compared to last year as higher sales through
Full Service Supply (FSS) programs, which contributed two percent to sales
growth, were offset by a decline in sales through the catalog business and
acquired distributors of six percent. The increase in FSS sales is due to the
continued penetration in existing accounts coupled with curtailed growth in the
December 1999 quarter as a result of the implementation of its new business
system. Sales in the catalog business and at the acquired distributors declined
due to reduced demand in the automotive end market, including increased
shutdowns at customer plants.
Operating income was $4.4 million and included a restructuring and asset
impairment charge of $0.7 million, special charges of $0.3 million related to
the tender offer to acquire the outstanding shares of JLK and $0.1 million
related to period costs associated with the satellite closures. Excluding these
charges, operating income of $5.5 million was primarily affected by lower sales
levels, partially offset by higher margins in the catalog business due to a
better product mix and operational improvement. As part of a business
improvement plan, JLK recorded a restructuring and asset impairment charge
associated with the closure of three underperforming satellite locations and
severance for certain individuals.
For the six months ended December 31, 2000, sales declined one percent excluding
unfavorable foreign exchange effects of one percent, due to the factors
mentioned above. Operating income of $4.9 million was reduced by $2.3 million
related to restructuring and asset impairment charges and $2.0 million of costs
primarily related to the tender offer to acquire the outstanding shares of JLK.
Excluding these costs, operating income was reduced due to overall lower gross
margins in the FSS business due to a shift in end markets served, lower sales
levels and higher operating expense due to higher shipping costs incurred to
provide enhanced customer service.
LIQUIDITY AND CAPITAL RESOURCES
The company's cash flow from operations is the primary source of financing for
capital expenditures and internal growth. During the six months ended December
31, 2000, the company generated $87.2 million in cash flow from operations, a
decline of $26.3 million compared to a year ago. The decline resulted primarily
from lower working capital improvements of $24.3 million.
Net cash used for investing activities was $65.0 million, an increase of $49.7
million compared to the prior year. The increase is due primarily to the
purchase of the outstanding shares of JLK for $40.4 million coupled with a $5.1
million reduction in proceeds from the disposal of underutilized assets that
occurred in the six months ended December 31, 1999.
Net cash used for financing activities was $27.9 million, a decline of $70.4
million compared to the prior year. This decline is due to lower debt repayments
of $82.1 million coupled with higher company contributions of capital stock to
U.S. defined contribution pension plans of $5.3 million. This was partially
offset by treasury stock repurchases of $16.5 million. Lower debt repayments are
the result of the purchase of the JLK minority interest, lower cash flow from
operations and the repurchase of treasury stock.
The company generated free operating cash flow (FOCF) of $81.1 million and
$102.0 million for the six months ended December 31, 2000 and 1999,
respectively. The decline in FOCF is primarily due to lower working capital
improvements in the six months ended December 31, 2000.
14
17
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (CONTINUED)
- --------------------------------------------------------------------------------
In October 2000, the company continued its program to repurchase, from time to
time, up to a total of 1.6 million shares of its outstanding capital stock for
investment or other general corporate purposes. This repurchase program was
announced on January 31, 1997. During October 2000, the company purchased
600,000 shares of its capital stock at a total cost of $16.5 million, bringing
the total purchased under the authority of this program to approximately 1.4
million shares. The repurchases were financed principally by cash from
operations and short-term borrowings. Additionally, the Board of Directors
authorized the company to repurchase, from time to time, up to a total of 2.0
million additional shares of its outstanding capital stock. No repurchases have
been made under this new program. Repurchases may be made from time to time in
the open market, in negotiated or other permissible transactions.
On December 20, 2000, the company entered into a EUR 212.0 million
Euro-denominated revolving credit facility (Euro Credit Agreement) to hedge the
foreign exchange exposure in the company's net investment in Euro-based
subsidiaries, to take advantage of Euro-based borrowing rates that are currently
lower than the borrowing rates available to the company under the Bank Credit
Agreement and to diversify the company's interest rate exposure. Amounts
borrowed under the Euro Credit Agreement are to be used to repay indebtedness
under the Bank Credit Agreement, and to the extent the Bank Credit Agreement is
repaid, for working capital and general corporate purposes. At December 31,
2000, the Euro Credit Agreement bears interest at EURIBOR plus 1.00%, includes a
commitment fee of 0.275% of the unused balance and matures in December 2003.
There were no amounts outstanding under the Euro Credit Agreement at December
31, 2000. On January 8, 2001, the company borrowed EUR 212.0 million under this
facility to meet its obligation under the Euro-denominated forward contracts.
The proceeds from the Euro-denominated forward contracts of $191.1 million were
used to repay amounts borrowed under the Bank Credit Agreement. Subsequently,
the availability under the Bank Credit Agreement was permanently reduced to
$700.0 million.
FINANCIAL CONDITION
Total assets were $1,861.6 million at December 31, 2000, a four percent decline
from June 30, 2000. Net working capital was $414.6 million, up four percent from
$397.4 million at June 30, 2000. The ratio of current assets to current
liabilities at December 31, 2000 was 2.5 compared to 2.1 at June 30, 2000.
Primary working capital as a percentage of sales (PWC%) at December 31, 2000 was
28.0 percent, compared to 29.4 percent at June 30, 2000 and 30.9 percent at
December 31, 1999. The improvements in net working capital, the current ratio
and PWC% are primarily due to company sponsored programs to reduce primary
working capital. Additionally, net working capital and the current ratio
benefited from repayment of $50.9 million of short-term notes payable to banks.
The total debt-to-total capital ratio was 46.7 percent at December 31, 2000, an
increase from 45.6 percent at June 30, 2000 and a decline from 48.9 percent at
December 31, 1999. The increase from June 30, 2000 is due to the reduction in
minority interest from the acquisition of the JLK minority shares and the share
repurchase program. The decline from December 31, 1999 is due to the $83.9
million reduction in debt during this twelve-month period, partially offset by
lower minority interest.
15
18
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (CONTINUED)
- --------------------------------------------------------------------------------
ACQUISITION OF JLK MINORITY INTEREST
On July 2000, the company proposed to the Board of Directors of JLK Direct
Distribution Inc., an 83-percent owned subsidiary of the company, to acquire the
outstanding shares of JLK it does not already own. On September 11, 2000, the
company and JLK announced that they entered into a definitive merger agreement
for the company to acquire all the outstanding minority shares. Pursuant to the
agreement, JLK agreed to commence a cash tender offer for all of its shares of
Class A Common Stock at a price of $8.75 per share. The tender offer commenced
on October 3, 2000 and expired on November 15, 2000 resulting in JLK reacquiring
the 4.3 million shares for $37.5 million. Following JLK's purchase of shares in
the tender offer, the company acquired the remainder of the minority shares at
the same price in a merger. The company incurred transaction costs of $2.9
million, which were included in the total cost of the transaction. JLK incurred
costs of $2.0 million associated with the transaction, which were expensed as
incurred. The transaction was unanimously approved by the JLK Board of
Directors, including its special committee comprised of independent directors of
the JLK Board.
In July 2000, the company, JLK and the JLK directors (including one former
director) were named as defendants in several putative class action lawsuits.
The lawsuits seek an injunction, rescission, damages, costs and attorney fees in
connection with the company's proposal to acquire the outstanding stock of JLK
not owned by the company.
On November 3, 2000, the parties to the lawsuits entered into a Memorandum of
Understanding (MOU) with respect to a proposed settlement of the lawsuits. The
proposed settlement would provide for complete releases of the defendants, as
well as among other persons their affiliates and representatives, and would
extinguish and enjoin all claims that have been, could have been or could be
asserted by or on behalf of any member of the class against the defendants which
in any manner relate to the allegations, facts, or other matters raised in the
lawsuits or which otherwise relate in any manner to the agreement, the offer and
the merger. The MOU also provides, among other matters, for the payment by JLK
of up to approximately $0.3 million in attorneys' fees and expenses to
plaintiffs' counsel. No payment is to be made for liability or damages. The
final settlement of the lawsuits, including the amount of attorneys' fees and
expenses to be paid, is subject to the execution of a definitive stipulation of
settlement and to court approval.
STRATEGIC ALTERNATIVES
The company is considering strategic alternatives for two subsidiaries, Strong
Tool Company and Abrasive & Tool Specialties Company, including the possible
divestiture of these businesses or a portion thereof. In 2000, these businesses
represented approximately $90 million in sales. The company is currently not a
party to any written or oral agreement regarding the divestiture of these
businesses.
NEW ACCOUNTING STANDARDS
In September 2000, SFAS No. 140, "Accounting for Transfers and Servicing of
Financial Assets and Extinguishments of Liabilities - a replacement of FASB
Statement No. 125" was issued. SFAS No. 140 revises criteria for accounting for
asset securitizations, other financial-asset transfers, and collateral and
introduces new disclosures, but otherwise carries forward most of SFAS No. 125's
provisions without amendment. SFAS No. 140 has an immediate impact through new
disclosure requirements and amendments of the collateral provisions of SFAS No.
125. These changes must be applied for fiscal years ending after December 15,
2000. The company is currently evaluating the effects of SFAS No. 140 and is
preparing a plan for implementation.
In September 2000, the Emerging Issues Task Force (EITF) finalized EITF Issue
00-10, "Accounting for Shipping and Handling Fees and Costs", to address the
diversity in the income statement classification of amounts charged to customers
for shipping and handling, as well as for costs incurred related to shipping and
handling. The Issue requires all amounts billed to a customer in a sale
transaction related to shipping and handling be classified as revenue. The Issue
further requires companies to adopt and disclose a policy on the accounting for
shipping and handling costs. Such costs may not be netted against revenue,
however, disclosure of the amount and classification of these costs is required.
This Issue becomes effective for the June 2001 quarter and should not affect
reported earnings, however, it may result in the reclassification of amounts in
previously reported financial statements. The company is currently evaluating
the effects of this Issue and is preparing a plan for implementation.
16
19
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (CONTINUED)
- --------------------------------------------------------------------------------
FORWARD-LOOKING STATEMENTS
This Form 10-Q contains "forward-looking statements" as defined by Section 21E
of the Securities Exchange Act of 1934, as amended. Actual results may differ
materially from those expressed or implied in the forward-looking statements.
Factors that could cause actual results to differ materially include, but are
not limited to, the extent that the economic conditions in the United States and
Europe, and to a lesser extent, Asia Pacific are not sustained, risks associated
with integrating businesses, demands on management resources, risks associated
with international markets such as currency exchange rates, competition, and
risks associated with the implementation of restructuring actions and
environmental remediation activities. The company undertakes no obligation to
publicly release any revisions to forward-looking statements to reflect events
or circumstances occurring after the date hereof.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
- --------------------------------------------------------------------------------
In December 2000, the company entered into Euro-denominated forward contracts to
hedge the foreign exchange exposure in the company's net investment in
Euro-based subsidiaries. The company's objective for entering into these
contracts is to reduce its exposure to fluctuations in accumulated other
comprehensive loss due to exchange rate fluctuations. These forward contracts
had a notional amount of EUR 212.0 million and matured in January 2001. At
December 31, 2000, the company recorded the fair value of these contracts, net
of tax, of $4.1 million as a reduction of the cumulative translation adjustment.
On December 20, 2000, the company entered into a EUR 212.0 million
Euro-denominated revolving credit facility (Euro Credit Agreement) to hedge the
foreign exchange exposure in the company's net investment in Euro-based
subsidiaries, to take advantage of Euro-based borrowing rates that are currently
lower than the borrowing rates available to the company under the Bank Credit
Agreement and to diversify the company's interest rate exposure. Amounts
borrowed under the Euro Credit Agreement are to be used to repay indebtedness
under the Bank Credit Agreement, and to the extent the Bank Credit Agreement is
repaid, for working capital and general corporate purposes. At December 31,
2000, the Euro Credit Agreement bears interest at EURIBOR plus 1.00%, includes a
commitment fee of 0.275% of the unused balance and matures in December 2003.
There were no amounts outstanding under the Euro Credit Agreement at December
31, 2000. On January 8, 2001, the company borrowed EUR 212.0 million under this
facility to meet its obligation under the Euro-denominated forward contracts.
The proceeds from the Euro-denominated forward contracts of $191.1 million were
used to repay amounts borrowed under the Bank Credit Agreement. Subsequently,
the availability under the Bank Credit Agreement was permanently reduced to
$700.0 million.
The company has designated the foreign exchange exposure under the Euro Credit
Agreement as a hedge of the company's net investment in Euro-based subsidiaries.
The company's objective for this designation is to reduce its exposure to
fluctuations in accumulated other comprehensive loss due to exchange rate
fluctuations. Future changes in the value of borrowings under the Euro Credit
Agreement due to exchange rate fluctuations will be recorded as a component of
cumulative translation adjustment, net of tax.
There were no additional material changes in the company's exposure to market
risk from June 30, 2000.
17
20
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
- --------------------------------------------------------------------------------
The information set forth in Part II, Item 4 of the company's September 30, 2000
Form 10-Q is incorporated by reference herein.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
- --------------------------------------------------------------------------------
(a) Exhibits
(10) Material Contracts
10.1 Amendment to Credit Agreement with Mellon
Bank, N.A. and various creditors dated as of
December 6, 2000. Filed herewith.
10.2 Credit Agreement with Deutsche Bank AG and
various creditors dated as of December 20,
2000. Filed herewith.
10.3 Guarantee and Suretyship Agreement with
Deutsche Bank AG dated as of December 20,
2000. Filed herewith.
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the quarter ended
December 31, 2000.
18
21
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
KENNAMETAL INC.
Date: February 14, 2001 By: /s/ FRANK P. SIMPKINS
----------------------
Frank P. Simpkins
Corporate Controller and
Chief Accounting Officer
19
1
Exhibit 10.1
AMENDMENT TO TRANSACTION DOCUMENTS
THIS AMENDMENT, dated as of December 6, 2000, by and among
KENNAMETAL INC., a Pennsylvania corporation (the "Borrower"), the Lenders
parties to the Credit Agreement referred to below, and MELLON BANK, N.A., as
Administrative Agent under such Credit Agreement.
RECITALS:
WHEREAS, the Borrower has entered into a Credit Agreement,
dated as of November 17, 1997, by and among the Borrower, the Lenders parties
thereto from time to time, and Mellon Bank, N.A., as Administrative Agent (as
amended by Amendments to Transaction Documents dated as of November 26, 1997,
December 19, 1997, March 19, 1998, December 15, 1998, March 31, 1999, and
October 1, 1999, respectively, the "Credit Agreement");
WHEREAS, the parties hereto desire to amend further the Credit
Agreement as set forth herein; and
WHEREAS, capitalized terms used herein which are defined in
the Credit Agreement are used herein as therein defined; and
WHEREAS, the Borrower expects to enter into a credit facility
providing for revolving credit loans in a principal amount not exceeding EUR
225,000,000 to be provided by a group of lenders for which Deutsche Bank AG New
York Branch will act as agent (the "Euro Credit Facility"), such loans to be
made to the Borrower and to be guaranteed by certain Subsidiaries of the
Borrower.
NOW THEREFORE, the parties hereto, intending to be legally
bound, hereby agree as follows:
SECTION 1. AMENDMENT TO ADD A DEFINITION. Section 1.01 of
Annex A of the Credit Agreement is amended by adding thereto, in appropriate
alphabetical sequence, the following definition:
"Euro Credit Facility" means the Revolving Credit
Agreement, expected to be dated as of a date in
December, 2000, and as amended from time to time,
between the Borrower, the lenders party thereto and
Deutsche Bank AG New York Branch, as agent for such
lenders, providing for revolving credit loans to the
Borrower in a principal amount not exceeding EUR
225,000,000.
SECTION 2. AMENDMENT RELATING TO MANDATORY REDUCTION OF
REVOLVING CREDIT COMMITTED AMOUNTS UPON INCURRENCE OF RECAPTURE INDEBTEDNESS
UNDER THE EURO CREDIT FACILITY. The second sentence of Section 2.07(b)(i) of the
Credit Agreement is hereby
2
amended by adding, immediately before the period at the end of such sentence,
the following proviso:
; and provided, further, that, notwithstanding the
immediately preceding proviso, the Borrower shall be
obligated to make application pursuant to the
foregoing clause (y) upon incurrence of Indebtedness
under the Euro Credit Facility whether or not the
Investment Grade Rating Condition is satisfied on the
relevant Reduction Event Date
The Borrower confirms that Indebtedness of the Borrower under the Euro Credit
Facility will be Recapture Indebtedness for purposes of Section 2.07(b) and,
accordingly, that incurrence of such Indebtedness will be a Reduction Event as
described in Section 2.07(b)(vii). The related Reduction Event Application
Amount will be calculated based on the prevailing market exchange rate at the
time of incurrence of Indebtedness under the Euro Credit Facility.
SECTION 3. AMENDMENT RELATING TO INCREASE IN THE AMOUNT OF
PERMITTED INDEBTEDNESS. Section 7.02(f) of the Credit Agreement is hereby
amended by deleting the figure "$225,000,000" appearing therein and inserting in
lieu thereof the figure"$350,000,000".
SECTION 4. AMENDMENT RELATING TO PERMITTED LIENS. Section 7.03
of the Credit Agreement is hereby amended by deleting the word "and" at the end
of Section 7.03(l), redesignating Section 7.03(m) as Section 7.03(n), and adding
a new Section 7.03(m) as follows:
(m) Liens securing repayment of obligations
under the Euro Credit Facility if, and only if, the
Obligations under this Agreement are equally and
ratably secured by all such Liens pursuant to
security documentation in form reasonably
satisfactory to the Administrative Agent which
documentation provides, among other things, that such
Liens are granted to a single collateral agent acting
for the ratable benefit of both the Lenders and the
Administrative Agent hereunder and the lenders and
the agent under the Euro Credit Facility and that
directions to such collateral agent with respect to
exercise of remedies may be given by lenders holding
more than 50% of the aggregate outstanding principal
amount of obligations under this Agreement and the
Euro Credit Facility at the relevant time.
SECTION 5. AMENDMENT RELATING TO CHANGE IN A PARTICULAR
REQUIREMENT FOR RECAPTURE INDEBTEDNESS. Section 7.02(j) of the Credit Agreement
is hereby amended by deleting the words "Other unsecured Indebtedness" appearing
at the beginning thereof and inserting in lieu thereof the words "Other
unsecured (or, in the case of the Euro Credit Facility, secured only by Liens
permitted by Section 7.03(m) hereof) Indebtedness".
SECTION 6. EFFECTIVENESS AND EFFECT, ETC. This Amendment shall
become effective when both (i) Mellon Bank, N.A., as Administrative Agent, shall
have received counterparts hereof duly executed by the Borrower and the
Administrative Agent and consents
2
3
hereto duly executed by the Required Lenders (as defined in the Credit
Agreement) and (ii) the Euro Credit Facility, containing an exception to its
limitation on liens substantially identical to the amendatory language set forth
in Section 4 above, is executed and delivered by the parties thereto and is in
effect and Mellon Bank, N.A., as Administrative Agent under the Credit
Agreement, shall have received a counterpart of the Euro Credit Facility and a
certificate of the Borrower that the same is in effect. The Credit Agreement, as
previously amended and as further amended hereby, is and shall continue to be,
in full force and effect and is hereby in all respects ratified and confirmed.
Except to the extent expressly set forth herein, the execution, delivery and
effectiveness of this Amendment shall not operate as a waiver of any right,
power or remedy under the Credit Agreement or constitute a waiver of any
provision of the Credit Agreement.
SECTION 7. MISCELLANEOUS. This Amendment may be executed in
any number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which taken together shall constitute but one and the
same document. Section and other headings herein are for reference purposes only
and shall not affect the interpretation of this Amendment in any respect. This
Amendment shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania, without regard to choice of law principles. This
Amendment is a requested amendment within the meaning of Section 10.06(a)(ii) of
the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first written above.
KENNAMETAL INC.
By: /s/ James E. Morrison
--------------------------------
Name: James E. Morrison
Title: Vice President and Treasurer
MELLON BANK, N.A.,
individually and as Administrative Agent
By: /s/ Edward L. McGrath, C.F.A.
--------------------------------
Name: Edward L. McGrath, C.F.A.
Title: First Vice President
3
4
LENDER CONSENT AND ACKNOWLEDGMENT
The undersigned, a "Lender" under that certain Credit
Agreement, dated as of November 17, 1997, by and among Kennametal Inc., a
Pennsylvania corporation (the "Borrower"), the Lenders parties thereto from time
to time, and Mellon Bank, N.A., as Administrative Agent (as amended, the "Credit
Agreement"), hereby (a) acknowledges receipt of a counterpart of the Amendment
to Transaction Documents, dated as of December 6, 2000, by and among the
Borrower, the Lenders parties to the Credit Agreement and Mellon Bank, N.A., as
Administrative Agent, and (b) pursuant to Section 10.03 of the Credit Agreement,
consents and agrees to such Amendment to Transaction Documents and directs the
Administrative Agent to enter into it.
,
-----------------------------------
as Lender
By
--------------------------------
Name:
Title:
Date:
----------------------------
4
1
Exhibit 10.2
================================================================================
CREDIT AGREEMENT
dated as of December 20, 2000
by and among
KENNAMETAL INC.,
as Borrower,
THE LENDERS PARTIES HERETO FROM TIME TO TIME,
and
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent
-----------------
DEUTSCHE BANK SECURITIES INC.,
as Arranger
EUR 212,000,000
================================================================================
2
TABLE OF CONTENTS
SECTION TITLE PAGE
- ------- ----- ----
ARTICLE I
Definitions; Construction..........................................................................1
1.01 Definitions; Construction...........................................................1
ARTICLE II
Amount and Terms of Credit.........................................................................1
2.01 The Facility........................................................................1
2.02 Making of Loans.....................................................................2
2.03 Interest Rates......................................................................3
2.04 Renewal of Funding Period...........................................................4
2.05 Prepayments Generally...............................................................5
2.06 Optional Prepayment of Loans........................................................6
2.07 Mandatory Prepayments and Mandatory Reductions of the Commitments...................6
2.08 Interest Payment Dates..............................................................8
2.09 Pro Rata Treatment, etc.; Payments Generally........................................9
2.10 Additional Compensation in Certain Circumstances....................................9
2.11 Taxes..............................................................................11
2.12 Change of Lending Office...........................................................12
2.13 Substitution of Lender.............................................................12
ARTICLE III
Representations And Warranties....................................................................13
3.01 Corporate Status...................................................................13
3.02 Corporate Power and Authorization..................................................13
3.03 Execution and Binding Effect.......................................................13
3.04 Governmental Approvals and Filings.................................................13
3.05 Absence of Conflicts...............................................................13
3.06 Audited Financial Statements.......................................................14
3.07 Interim Financial Statements.......................................................14
3.08 Absence of Undisclosed Liabilities.................................................14
3.09 Accurate and Complete Disclosure...................................................14
3.10 Solvency...........................................................................15
3.11 Margin Regulations.................................................................15
3.12 Regulatory Restrictions............................................................15
3.13 Litigation.........................................................................15
3.14 Absence of Other Conflicts.........................................................15
3.15 Insurance..........................................................................16
3.16 Title to Property..................................................................16
3.17 Intellectual Property..............................................................16
3.18 Taxes..............................................................................16
3.19 Employee Benefits..................................................................16
3.20 Environmental Matters..............................................................16
3
TABLE OF CONTENTS
SECTION TITLE PAGE
- ------- ----- ----
ARTICLE IV
Conditions ................................................................................17
4.01 Conditions to Extension of Credit on the Closing Date..............................17
4.02 Conditions to Extension of Credit After the Closing Date...........................19
ARTICLE V
Affirmative Covenants.............................................................................20
5.01 Basic Reporting Requirements.......................................................20
5.02 Insurance..........................................................................22
5.03 Payment of Taxes and Other Potential Charges and Priority Claims...................22
5.04 Preservation of Corporate Status...................................................23
5.05 Governmental Approvals and Filings.................................................23
5.06 Maintenance of Properties, Franchises, etc.........................................23
5.07 Avoidance of Other Conflicts.......................................................23
5.08 Financial Accounting Practices.....................................................24
5.09 Use of Proceeds....................................................................24
5.10 Continuation of or Change in Business..............................................24
5.11 Plans and Multiemployer Plans......................................................24
5.12 Subsidiary Guarantors..............................................................25
ARTICLE VI
Negative Covenants................................................................................25
6.01 Financial Covenants................................................................25
6.02 Limitation on Payments on and Maturities of Certain Obligations....................26
6.03 Liens..............................................................................26
6.04 Mergers, etc.......................................................................28
6.05 Dispositions of Properties.........................................................29
6.06 Dealings with Affiliates...........................................................29
6.07 Other Restrictions on Liens, Dividend Restrictions on Subsidiaries, etc...........29
6.08 Other Restrictions on Amendment of the Loan Documents, etc.........................30
6.09 Fiscal Year........................................................................30
ARTICLE VII
Defaults..........................................................................................30
7.01 Events of Default.................................................................30
7.02 Consequences of an Event of Default...............................................33
7.03 Application of Proceeds...........................................................34
-ii-
4
TABLE OF CONTENTS
SECTION TITLE PAGE
- ------- ----- ----
ARTICLE VIII
The Administrative Agent..........................................................................34
8.01 Appointment.......................................................................34
8.02 General Nature of Administrative Agent's Duties...................................35
8.03 Exercise of Powers................................................................35
8.04 General Exculpatory Provisions....................................................36
8.05 Administration by the Administrative Agent........................................36
8.06 Lenders Not Relying on Administrative Agent or Other Lenders......................37
8.07 Indemnification of Administrative Agent by Lenders................................37
8.08 Administrative Agent in its Individual Capacity...................................38
8.09 Holders of Notes..................................................................38
8.10 Successor Administrative Agent....................................................38
8.11 Calculations......................................................................39
8.12 Administrative Agent's Fee........................................................39
8.13 Funding by Administrative Agent...................................................39
ARTICLE IX
Miscellaneous ................................................................................39
9.01 Holidays..........................................................................39
9.02 Records...........................................................................39
9.03 Amendments and Waivers............................................................39
9.04 No Implied Waiver; Cumulative Remedies............................................40
9.05 Notices...........................................................................41
9.06 Expenses; Indemnity...............................................................41
9.07 Severability......................................................................42
9.08 Prior Understandings..............................................................42
9.09 Effectiveness; Duration; Survival.................................................42
9.10 Counterparts......................................................................43
9.11 Limitation on Payments............................................................43
9.12 Set-Off...........................................................................43
9.13 Sharing of Collections............................................................43
9.14 Successors and Assigns; Participations; Assignments...............................44
9.15 Confidentiality...................................................................46
9.16 Payment of Obligations in Euros...................................................46
9.17 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial;
Limitation of Liability...........................................................47
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TABLE OF CONTENTS
SECTION TITLE PAGE
- ------- ----- ----
ANNEX A DEFINITIONS; CONSTRUCTION...................................................... A-1
ANNEX B PRICING GRID................................................................... B-1
COMMITMENT SCHEDULE
Exhibit A Form of Note
Exhibit B Form of Transfer Supplement
Exhibit C Form of Compliance Certificate
Exhibit D Form of Officer's Certificate
Exhibit E Form of Opinion of Buchanan Ingersoll Professional Corporation
Exhibit F Form of Subsidiary Guaranty
Schedule 3.13 Litigation
Schedule 6.03 Liens
-iv-
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CREDIT AGREEMENT
THIS AGREEMENT, dated as of December 20, 2000, by and among
KENNAMETAL INC., a Pennsylvania corporation (the "Borrower"), the Lenders
parties hereto from time to time, and DEUTSCHE BANK AG, NEW YORK BRANCH, as
administrative agent for the Lender Parties hereunder (in such capacity,
together with its successors in such capacity, the "Administrative Agent").
In consideration of the mutual covenants herein contained and
intending to be legally bound, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
1.01 DEFINITIONS; CONSTRUCTION. In addition to other terms
defined elsewhere in this Agreement, as used in this Agreement the terms defined
in Annex A hereto have the meanings given them in such Annex A, and this
Agreement shall be construed in accordance with the provisions of such Annex A.
ARTICLE II
AMOUNT AND TERMS OF CREDIT
2.01 THE FACILITY.
(a) COMMITMENTS. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender,
severally and not jointly, agrees (such agreement being herein called such
Lender's "Commitment") to make loans (the " Loans") to the Borrower at any time
or from time to time on or after the date hereof and to but not including the
Maturity Date. A Lender shall have no obligation to make any Loan to the extent
that such Lender's Loans outstanding at any time would exceed such Lender's
Committed Amount at such time. Each Lender's "Committed Amount" at any time
shall be equal to the amount set forth as its "Initial Committed Amount"
opposite its name in the Commitment Schedule, as such amount may have been
reduced under Section 2.01(e) at such time, and subject to transfer to another
Lender as provided in Section 9.14. The sum of the Committed Amounts of the
Lenders shall not at any time exceed the amount set forth in the Commitment
Schedule opposite the caption "Total Initial Committed Amounts."
(b) NATURE OF CREDIT. Within the limits of time and amount set
forth in this Section 2.01, and subject to the provisions of this Agreement, the
Borrower may borrow, repay and reborrow Loans hereunder.
(c) MATURITY. To the extent not due and payable earlier, the
Loans shall be due and payable on the Maturity Date.
(d) COMMITMENT FEE. The Borrower shall pay to the
Administrative Agent for the account of each Lender a commitment fee (the
"Commitment Fee") for each day from and including the date hereof to but not
including the Maturity Date, which for each day shall be equal to (i) the
Commitment Fee Percentage for such day, times (ii) 1/360, times (iii) the amount
(not less than zero) equal to (A) such Lender's Committed Amount on such day,
minus (B) the sum of the outstanding principal
7
amount of such Lender's Loans on such day. The "Commitment Fee Percentage" for
any day shall mean the applicable percentage set forth in the Pricing Grid based
on the Status Level on such day. Such Commitment Fee shall be due and payable
for the preceding period for which such fee has not been paid on each of the
following dates: (x) each Regular Payment Date, (y) the date of each reduction
of the Committed Amounts (whether optional or mandatory) on the amount so
reduced, and (z) the Maturity Date.
(e) OPTIONAL AND MANDATORY REDUCTION OF THE COMMITTED AMOUNTS.
(A) MANDATORY REDUCTION. The aggregate Committed Amounts shall
be reduced from time to time as required by Section 2.07(b).
(B) OPTIONAL REDUCTION. The Borrower may from time to time
reduce the aggregate Committed Amounts to an aggregate amount (which may be
zero) not less than the sum of the Loans of the Lenders plus the amount of all
Loans of the Lenders not yet outstanding which the Borrower has requested under
Section 2.02.
(C) MECHANICS OF REDUCTION. Each reduction of the Committed
Amounts shall be applied Pro Rata to the Committed Amounts of the Lenders. Each
optional reduction of the Committed Amounts, and each mandatory reduction of the
Committed Amounts of the Lenders pursuant to Section 2.07(b), shall be in an
aggregate amount which is an integral multiple of EUR 1,000,000 and not less
than EUR 2,000,000. Each optional reduction of the Committed Amounts, and each
mandatory reduction of the Committed Amounts pursuant to Section 2.07, shall be
made by providing not less than three Business Days' notice (which notice shall
be irrevocable) to such effect to the Administrative Agent, and any such
reduction in the Committed Amounts shall be effective on the date set forth in
such notice.
(f) NOTES. The obligation of the Borrower to repay the unpaid
principal amount of the Loans made to it by each Lender and to pay interest
thereon shall be evidenced in part by promissory notes of the Borrower, issued
to each Lender, dated the date hereof (the "Notes"), and substantially the form
attached hereto as Exhibit A, payable to the order of such Lender.
2.02 MAKING OF LOANS.
Whenever the Borrower desires that the Lenders make Loans, the
Borrower shall provide Standard Notice to the Administrative Agent setting forth
the following information:
(i) the date, which shall be a Business Day, on which such
proposed Loans are to be made;
(ii) the aggregate principal amount of such proposed Loans,
which shall be the sum of the Funding Segments selected pursuant to clause (iii)
of this Section 2.02, and which, shall be an integral multiple of EUR 500,000
and not less than EUR 5,000,000; and
(iii) with respect to each Funding Segment of such proposed
Loans, the Funding Period to apply to such Funding Segment, selected in
accordance with Section 2.03(c).
Standard Notice having been so provided, the Administrative Agent shall promptly
notify each Lender of the information contained therein and of the amount of
such Lender's Loan. Unless any applicable condition specified in Article IV has
not been satisfied, on the date specified in such Standard Notice each Lender
shall make the proceeds of its Loan available
-2-
8
to the Administrative Agent at the Administrative Agent's Office, no later than
1:00 p.m., New York time, in funds immediately available at such Office. The
Administrative Agent will make the funds so received available to the Borrower
in funds immediately available at the Administrative Agent's Office.
2.03 INTEREST RATES.
(a) BASIS OF BORROWING. The unpaid principal amount of the
Loans shall bear interest for each day until due at a rate per annum (based on a
year of 360 days and actual days elapsed) equal to EURIBOR for such day plus the
Applicable Margin for such day. Subject to the provisions of this Agreement, the
Borrower may select different Funding Segments to apply simultaneously to
different parts of the Loans. Each Funding Period shall apply separately and
without overlap to the Funding Segments covered thereby.
(b) APPLICABLE MARGINS. The "Applicable Margin" for each day
shall mean the applicable percentage set forth in the Pricing Grid based on the
Status Level on such day.
(c) FUNDING PERIODS. At any time when the Borrower shall
request any Loans to be made or renew the Funding Period to apply to any Loans,
the Borrower shall specify one or more funding periods of one, three, six, nine
or twelve months to be applicable to such Loans (each a "Funding Period");
provided that (in each case):
(i) all Loans comprising a Funding Segment shall at all times
have the same Funding Period;
(ii) the initial Funding Period for any Loan shall commence on
the date of borrowing of such Loan and each Funding Period occurring
thereafter in respect of such Loan shall commence on the day on which
the next preceding Funding Period applicable thereto expires;
(iii) if any Funding Period begins on a day for which there is
no numerically corresponding day in the calendar month at the end of
such Funding Period, such Funding Period shall end on the last Business
Day of such calendar month;
(iv) if any Funding Period would otherwise expire on a day
which is not a Business Day, such Funding Period shall expire on the
next succeeding Business Day; provided, however, that if any Funding
Period would otherwise expire on a day which is not a Business Day but
is a day of the month after which no further Business Day occurs in
such month, such Funding Period shall expire on the next preceding
Business Day;
(v) only a one month Funding Period may be selected at any
time when a Potential Default or Event of Default is then in
existence;
(vi) no Funding Period in respect of any Funding Segment shall
be selected which extends beyond the Maturity Date; and
(vii) the aggregate number of Funding Segments of all Loans at
any time shall not exceed six.
(d) TRANSACTIONAL AMOUNTS. Each selection of or renewal of any
Funding Segment, and each payment or prepayment of any Loans, shall be in a
principal amount such that after giving effect thereto the aggregate principal
amount of each
-3-
9
Funding Segment of Loans shall be an integral multiple of EUR 500,000 and not
less than EUR 1,000,000.
(e) EURIBOR UNASCERTAINABLE; IMPRACTICABILITY. If
(i) on any date on which EURIBOR is to be set the
Administrative Agent shall have determined in good faith (which
determination shall be conclusive absent manifest error) that:
(A) adequate and reasonable means do not exist for
ascertaining such EURIBOR,
(B) a contingency has occurred which materially and
adversely affects the interbank Euro market and, in turn,
EURIBOR, or
(C) Lenders having 50% or more of the aggregate
Commitment Percentages have advised the Administrative Agent
that the effective cost to such Lender of funding a proposed
Funding Segment from a Corresponding Source of Funds shall
exceed the EURIBOR applicable to such Funding Segment, or
(ii) at any time any Lender shall have determined in good
faith (which determination shall be conclusive absent manifest error)
that the making, maintenance or funding of any Loan has been made
impracticable or unlawful by compliance by such Lender or its Lending
Office with any Law or guideline or interpretation or administration
thereof by any Governmental Authority charged with the interpretation
or administration thereof or with any request or directive of any such
Governmental Authority (whether or not having the force of law);
then, and in any such event, the Administrative Agent or such Lender, as the
case may be, may notify the Borrower of such determination (and any Lender
giving such notice shall notify the Administrative Agent). Upon such date as
shall be specified in such notice (which shall not be earlier than the date such
notice is given) (x) in the case of any determination of the type described in
clause (i) above, the obligation of each of the Lenders to allow the Borrower to
select or renew a Funding Period shall be suspended and EURIBOR shall thereafter
be established in accordance with the last sentence of the definition thereof
until the Administrative Agent shall have later notified the Borrower (and any
Lender giving such notice shall notify the Administrative Agent) of the
Administrative Agent's or such Lender's determination (which determination shall
be conclusive absent manifest error) that the circumstance giving rise to such
previous determination no longer exists and (y) in the case of any determination
of the type described in clause (ii) above, the Loans of such Lender (the
"Affected Lender") shall become due and payable to such Affected Lender on the
third Business Day following the Borrower's receipt of such written notice of
the occurrence of such determination. If at the time the Administrative Agent or
a Lender makes a determination under clause (i) or (ii) of this Section 2.03(e)
the Borrower previously has notified the Administrative Agent that it wishes to
select or renew the Funding Period with respect to any proposed Loans, but such
Loans have not yet been made or renewed, such notification shall be ineffective
in respect of determinations made pursuant to clause (i) above and the
Administrative Agent shall advise the Borrower of EURIBOR to be applicable to
such Loans in accordance with clause (x) above, and no Affected Lender shall be
required to make or renew any Loan pursuant to such request unless it has
determined in good faith that it no longer constitutes an Affected Lender.
2.04 RENEWAL OF FUNDING PERIOD.
(a) RENEWAL. Subject to Section 2.10(b), the Borrower may
renew the Funding Period as to any Funding Segment of the Loans at the
expiration of any Funding Period corresponding to such Funding Segment.
-4-
10
Whenever the Borrower desires to renew any Funding Period, the Borrower shall
provide to the Administrative Agent Standard Notice setting forth the following
information:
(x) The date, which shall be a Business Day, on which the
proposed renewal is to be made;
(y) The principal amounts selected in accordance with Section
2.03(d) of each Funding Segment to be renewed; and
(z) With respect to each Funding Segment to be renewed, the
Funding Period selected in accordance with Section 2.03(c) to apply to
such Funding Segment.
Standard Notice having been so provided, after the date specified in such
Standard Notice, interest shall be calculated upon the principal amount of such
Loans as so renewed. Interest on the principal amount of any part of such
renewed Loans (whether renewed automatically or otherwise) shall be due and
payable on the renewal date.
(b) FAILURE TO RENEW. Absent due notice from the Borrower of
renewal in the circum-stances described in Section 2.04(a), any Funding Segment
for which such notice is not received shall, subject to the provisions of
Section 2.03(e), be automatically renewed on a one month Funding Period basis on
the last day of the expiring Funding Period with respect to such Funding
Segment.
2.05 PREPAYMENTS GENERALLY.
(a) GENERAL PROCEDURE FOR PREPAYMENTS. Subject to the
provisions of this Agreement, whenever the Borrower desires or is required to
prepay any part of the Loans, it shall provide Standard Notice to the
Administrative Agent setting forth the following information:
(i) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(ii) The total principal amount of such prepayment, which
shall be the sum of the principal amounts selected pursuant to clause
(iii) of this Section 2.05(a), and which shall be an integral multiple
of EUR 500,000 not less than EUR 5,000,000 (unless such prepayment
repays all of the outstanding Loans) and;
(iii) The principal amounts selected in accordance with
Section 2.03(d) of each Funding Segment of the Loans to be prepaid.
Standard Notice having been so provided, on the date specified in such Standard
Notice, the principal amounts specified in such notice, together with interest
on each such principal amount to such date, shall be due and payable.
-5-
11
2.06 OPTIONAL PREPAYMENT OF LOANS. The Borrower shall, subject
to the provisions of Section 2.10(b), have the right at its option from time to
time to prepay Loans in whole or part without premium or penalty. Any such
prepayment shall be made in accordance with Section 2.05.
2.07 MANDATORY PREPAYMENTS AND MANDATORY REDUCTIONS OF THE
COMMITMENTS.
(a) COMMITTED AMOUNTS. If on any day the aggregate outstanding
principal amount of Loans exceeds the aggregate Committed Amounts, the Borrower
shall prepay Loans in an aggregate principal amount not less than the amount of
such excess. Any such prepayments shall be immediately due and payable on such
day, without presentment, demand, protest or notice of any kind. Such
prepayments shall be allocated among the Funding Segments of the Loans as the
Borrower may designate or, absent such designation, as determined by the
Administrative Agent.
(b) REDUCTION EVENTS.
(i) GENERALLY. "Reduction Event" shall mean any of the events
defined as such in Section 2.07(b)(ii), (iii), (iv), (v) or (vi). If a Reduction
Event shall occur, an amount not less than the corresponding Reduction Event
Application Amount shall be applied to reduce the aggregate Committed Amounts;
provided that the Borrower shall not be obligated to make any application
pursuant to this sentence in the event that (x) the Investment Grade Rating
Condition is satisfied on the Reduction Event Date corresponding to such
Reduction Event, or (y) such Reduction Event arising hereunder would not give
rise to a mandatory repayment or commitment reduction under the Existing Credit
Facility assuming Indebtedness or commitments were outstanding under such
facility. Any such reduction of the Committed Amounts shall be made in
accordance with Section 2.01(e)(C), and if such reduction causes the aggregate
outstanding principal amount of Loans of the Lenders to exceed the aggregate
Committed Amounts, the Borrower shall prepay such excess in accordance with
Section 2.07(a), and to the extent possible, the Borrower shall make prepayment
in accordance with Sections 2.05 not later than the effective date of such
reduction so as to avoid such excess. Such reductions of the Committed Amounts
shall be made not later than the Reduction Event Date corresponding to such
Reduction Event, provided, that
(A) if the Reduction Event Application Amount in respect of
such Reduction Event is less than EUR 10,000,000, such prepayment and
reduction shall not be required until the aggregate amount of all
Reduction Event Application Amounts not applied are equal to at least
EUR 10,000,000; and
(B) if application of this Section 2.07(b) would otherwise
require prepayment of any Funding Segment on a day other than the last
day of the corresponding Funding Period, then such prepayment shall,
unless either (1) an Event of Default or Potential Default exists or
(2) the Administrative Agent otherwise notifies the Borrower upon the
instructions of the Required Lenders, be deferred until such last day;
provided, that in no event may prepayments be deferred pursuant to this
clause (B) for longer than 90 days.
The Borrower shall give the Administrative Agent at least three Business Days'
notice of each prepayment or reduction required to be made pursuant to this
Section 2.07(b), and of each event which would give rise to such a prepayment or
reduction but for application of the foregoing clauses (A) or (B).
(ii) ASSET SALES. "Reduction Event" shall include the
following (each, a "Reduction Event Asset Sale"): any sale, lease or other
disposition (including without limitation (x) any such transaction effected by
way of merger or consolidation, and (y) any sale-leaseback transaction whether
or not
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involving a capitalized lease) by the Borrower or any of its Subsidiaries of any
property (including without limitation any capital stock or other equity
interest held by the Borrower or such Subsidiary), but excluding (A) any
disposition to the Borrower or to a Subsidiary of the Borrower, (B) any sale,
transfer or other disposition in the ordinary course of business of inventory or
of obsolete equipment or equipment which has been replaced by upgraded equipment
(it being understood that dispositions of equipment which has become redundant
as a result of the Acquisition or any other acquisition of a business shall not
be deemed to be in the ordinary course), (C) any sale, lease or other
disposition (or series of related sales, leases or other dispositions), other
than an Asset Securitization Transfer, the Net Proceeds of which do not exceed
$5,000,000, (D) any leases of tangible personal property entered into in the
ordinary course of business, (E) any sale, transfer or other disposition of
temporary cash investments in the ordinary course of business, (F) any sale,
transfer or other disposition of any property (other than an Asset
Securitization Transfer) if the Borrower notifies the Administrative Agent
promptly after the receipt of the Net Proceeds thereof that such proceeds will
be used by the Borrower and its Subsidiaries to purchase similar properties
within twelve months after the date of such notice, but only to the extent such
proceeds are actually so used, (G) any disposition in a Reduction Event
described in Section 2.07(b)(iii), (H) any leases or subleases of unoccupied
space, (I) any factoring of trade receivables originated by a Foreign
Subsidiary, provided, that the aggregate amount of all transactions exempted
pursuant to this clause (I) from and after the date hereof shall not exceed
$25,000,000 (or the equivalent in any currency at any time) less the amount of
all such transactions effected since November 17, 1997 and (J) any Asset
Securitization Transfer representing the reinvestment of cash collections from
accounts or notes receivable or interests therein which have been previously the
subject of an Asset Securitization Transfer, but only to the extent of such
reinvestment of cash collections. The "Reduction Event Application Amount"
corresponding to the foregoing Reduction Event shall be the Dollar Equivalent of
100% of the Net Proceeds thereof. The "Reduction Event Date" corresponding to
the foregoing Reduction Event shall be five Business Days after the Borrower or
any of its Subsidiaries receives Net Proceeds from such event.
(iii) EXTRAORDINARY INSURANCE PROCEEDS. "Reduction Event"
shall include the following: receipt of (i) aggregate insurance proceeds in
excess of $5,000,000 in connection with one or more related events by the
Borrower or any of its Subsidiaries under any insurance policy covering losses
with respect to tangible real or personal property or improvements, or (ii) any
award or other compensation in excess of such amount in connection with one or
more related events of condemnation of property (or transfer or disposition in
lieu of condemnation) of the Borrower or any of its Subsidiaries; provided, that
receipt of such proceeds, award or other compensation shall not be considered as
giving rise to a Reduction Event if the Borrower notifies the Administrative
Agent promptly after such receipt thereof that such proceeds, award or other
compensation will be used by the Borrower and its Subsidiaries to repair or
replace the asset so affected within twelve months after the date of such
notice, but only to the extent that such proceeds, award or other compensation
is actually so used. The "Reduction Event Application Amount" corresponding to
the foregoing Reduction Event shall be the Dollar Equivalent of 100% of the Net
Proceeds thereof. The "Reduction Event Date" corresponding to the foregoing
Reduction Event shall be five Business Days after the Borrower or any of its
Subsidiaries receives Net Proceeds from such event.
(iv) EQUITY ISSUANCE. "Reduction Event" shall include the
following: issuance of any equity securities by the Borrower or any of its
Subsidiaries, excluding (A) equity securities issued in consideration for the
acquisition of a business (in each case whether by acquisition of stock or
assets), (B) equity securities issued to the Borrower or any of its
Subsidiaries, (C) directors' qualifying shares, (D) equity securities issued in
the ordinary course of business in connection with director or employee stock
purchase plans and arrangements and other director or employee compensation
arrangements, (E) equity securities issued in the ordinary course of business
under the Borrower's dividend reinvestment and stock purchase plan (but not in
excess of the
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13
volume limitations specified in the prospectus for such plan dated April 29,
1993), and (F) common stock of the Borrower issued in settlement of Purchase
Contracts. The "Reduction Event Application Amount" corresponding to the
foregoing Reduction Event shall be the Dollar Equivalent of 100% of the Net
Proceeds thereof. The "Reduction Event Date" corresponding to the foregoing
Reduction Event shall be five Business Days after the Borrower or any of its
Subsidiaries receive the Net Proceeds from such event.
(v) ISSUANCE OF EQUITY HYBRID SECURITIES AND SETTLEMENT OF
PURCHASE CONTRACTS. "Reduction Event" shall include the following: (i) issuance,
sale or other disposition by the Borrower or any of its Subsidiaries of any
Equity Hybrid Securities, and (ii) settlement of, or other receipt of proceeds
by the Borrower or any of its Subsidiaries in connection with, a Purchase
Contract (whether such settlement or receipt occurs by reason of cash payment by
the holder of such Purchase Contract, receipt of proceeds of remarketing or
other disposition of Equity Hybrid Securities pledged to secure such Purchase
Contracts, receipt of proceeds of cash collateral for Purchase Contract upon
maturity or liquidation thereof, or otherwise), excluding from clause (ii) the
following: (x) the portion of the aggregate proceeds received (in cash or
marketable securities, valued at their fair market value) by the Borrower in
settlement of Purchase Contracts, if any, equal to the amount concurrently paid
by the Borrower or its Subsidiaries to redeem Equity Hybrid Securities in a
redemption permitted under clause (i)(y) of the definition of "Equity Hybrid
Securities" and (y) Equity Hybrid Securities acquired by the Borrower in
satisfaction of the obligation of the owners of such Equity Hybrid Securities
under Purchase Contracts. The "Reduction Event Application Amount" corresponding
to the foregoing Reduction Event shall be the Dollar Equivalent of 100% of the
Net Proceeds thereof. The "Reduction Event Date" corresponding to the foregoing
Reduction Event shall be five Business Days after the Borrower or any of its
Subsidiaries receives Net Proceeds from such event.
(vi) RECAPTURE INDEBTEDNESS. "Reduction Event" shall include
the following: incurrence by the Borrower of any Recapture Indebtedness;
provided, that incurrence of successor Recapture Indebtedness to refinance
predecessor Recapture Indebtedness shall not constitute a Reduction Event to the
extent of the principal amount of the predecessor Recapture Indebtedness so
refinanced. The "Reduction Event Application Amount" corresponding to the
foregoing Reduction Event shall be the Dollar Equivalent of the principal amount
of such Recapture Indebtedness. The "Reduction Event Date" corresponding to the
foregoing Reduction Event shall be five Business Days after the date the
Borrower incurs such Recapture Indebtedness.
(c) Notwithstanding anything to the contrary contained above
in Section 2.07(b), the Reduction Event Application Amount in respect of each
Reduction Event described above in Section 2.07(b) shall be reduced by the
amount, if any, of the Reduction Event Application Amount (as defined in the
Existing Credit Facility) required pursuant to such Reduction Event and actually
applied to either reduce the commitments or repay outstanding loans under the
Existing Credit Facility in accordance with the terms thereof.
2.08 INTEREST PAYMENT DATES. Accrued and unpaid interest on
the Loans shall be due and payable on the last day of the corresponding Funding
Period and, if such Funding Period is longer than three months, also at
intervals of three months after the first day of such Funding Period. In
addition to the foregoing, interest shall be due and payable on such other dates
as may be specified elsewhere in this Agreement and the other Loan Documents.
After any part of the Loans become due and payable (by acceleration or
otherwise), interest on such part of the Loans shall be due and payable on
demand.
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14
2.09 PRO RATA TREATMENT, ETC.; PAYMENTS GENERALLY.
(a) PRO RATA TREATMENT, ETC.. Each borrowing and each renewal
of Funding Periods shall be made, and all payments made in respect of principal
of and interest on Loans and Commitment Fees due from the Borrower hereunder or
under the Notes shall be applied, Pro Rata from and to each Lender, except for
(x) payments of interest involving an Affected Lender as provided in Section
2.03(e), and (y) payments to a Lender subject to a withholding deduction under
Section 2.11(a). The failure of any Lender to make a Loan shall not relieve any
other Lender of its obligation to lend hereunder, but neither the Administrative
Agent nor any Lender shall be responsible for the failure of any other Lender to
make a Loan.
(b) PAYMENTS GENERALLY. All payments and prepayments to be
made by the Borrower in respect of amounts due from the Borrower hereunder or
under any other Loan Document shall be payable in Euros at 1:00 p.m., New York
time, on the day when due without presentment, demand, protest or notice of any
kind, all of which are hereby expressly waived, and an action therefor shall
immediately accrue, without setoff, counterclaim, withholding or other deduction
of any kind or nature (except for payments to a Lender subject to a withholding
deduction under Section 2.11(a)). Except for payments under Sections 2.10(a) or
10.06, such payments shall be made to the Administrative Agent at its Office in
funds immediately available at such Office, and payments under Sections 2.10(a)
or 10.06 shall be made to the applicable Lender at such account as it shall
specify to the Borrower from time to time in funds immediately available at such
account. Any payment received by the Administrative Agent or such Lender after
1:00 p.m., New York time, on any day shall be deemed to have been received on
the next succeeding Business Day. The Administrative Agent shall distribute to
each Lender, for the account of its Lending Office, all such payments received
by the Administrative Agent for the account of such Lender promptly after
receipt by the Administrative Agent.
(c) INTEREST ON OVERDUE AMOUNTS. To the extent permitted by
law, after there shall have become due (by acceleration or otherwise) principal,
interest, fees, indemnity, expenses or any other amounts due from the Borrower
hereunder or under any other Loan Document, such amounts shall bear interest for
each day until paid (before and after judgment), payable on demand, at a rate
per annum (based on a year of 360 days and actual days elapsed) which for each
day shall be equal to 2.00% above the rate otherwise applicable thereto.
2.10 ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES.
(a) INCREASED COSTS OR REDUCED RETURN RESULTING FROM RESERVES,
CAPITAL ADEQUACY REQUIREMENTS, EXPENSES, ETC. If any Law or guideline or
interpretation or application thereof by any Governmental Authority charged with
the interpretation or administration thereof or compliance with any request or
directive of any Governmental Authority (whether or not having the force of law)
adopted on or after the date hereof
(i) imposes, modifies or deems applicable any reserve, special
deposit, insurance assessment or any other requirement against credits
or commitments to extend credit extended by, assets (funded or
contingent) of, deposits with or for the account of, or other
acquisitions of funds by, any Lender Party or its Lending Office (other
than requirements expressly included herein in the determination of
EURIBOR hereunder),
(ii) imposes, modifies or deems applicable any capital
adequacy or similar requirement against assets (funded or contingent)
of, or credits or commitments to extend credit extended by, any Lender
Party or its Lending Office, or applicable to the obligations of any
Lender Party or its Lending Office under or in connection with any Loan
Document, or
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(iii) imposes upon any Lender Party or its Lending Office any
other condition or expense with respect to any Loan Document or its
making, maintenance or funding of any Loan, and the result of any of
the foregoing conditions described in clauses (i) or (ii) above or this
clause (iii) is to increase the cost to, reduce the income receivable
by, or impose any expense (including loss of margin) upon any Lender
Party or its Lending Office or, in the case of clause (ii), any Person
controlling a Lender Party, with respect to any Loan Document or the
making, maintenance or funding of any Loan (or, in the case of any
capital adequacy or similar requirement, to have the effect of reducing
the rate of return on capital of such Lender Party, Lending Office or
controlling Person's capital, taking into consideration the policies of
such Lender Party, Lending Office or controlling Person with respect to
capital adequacy) by an amount which such Lender Party deems to be
material (such Lender Party being deemed for this purpose to have made,
maintained or funded each Funding Segment from a Corresponding Source
of Funds), such Lender Party may from time to time notify the Borrower
of the amount (determined in good faith by such Lender Party) necessary
to compensate such Lender Party, Lending Office or controlling Person
for such increase, reduction or imposition. A certificate of a Lender
Party claiming compensation under this Section 2.10(a) and setting
forth the additional amount to be paid to it and indicating in
reasonable detail the computation thereof shall be conclusive absent
manifest error. In making any such computation such Lender Party may
take into account any special, supplemental or other nonrecurring
items, may apply any reasonable averaging or attribution methods, and
may make such computation prospectively or retrospectively. Such amount
shall be due and payable by the Borrower to such Lender Party ten
Business Days after such certificate is given. The Borrower shall not
be liable under this Section 2.10(a) to any Lender Party to compensate
it or any controlling Person of such Lender Party for any cost,
reduction or imposition incurred or suffered more than 90 days before
receipt by the Borrower of a notice from such Lender Party referring to
the event that gave rise to such cost, reduction or imposition.
(b) FUNDING BREAKAGE. In the event that for any reason (i) the
Borrower fails to borrow or renew any part of any Loan, in each instance after
notice requesting such borrowing or renewal has been given by the Borrower
(whether such failure results from failure to satisfy applicable conditions to
such borrowing or renewal or otherwise), or (ii) any part of any Funding Segment
becomes due (by acceleration or otherwise), or is paid or prepaid (whether or
not such payment or prepayment is mandatory or automatic and whether or not such
payment or prepayment is then due), on a day other than the last day of the
corresponding Funding Period, the Borrower shall indemnify each Lender on demand
(following delivery by such Lender to the Borrower of the certificate referred
to below) against any loss, liability, cost or expense of any kind or nature
which such Lender may sustain or incur in connection with or as a result of such
event. Such indemnification in any event shall include an amount equal to the
excess, if any, of (x) the aggregate amount of interest which would have accrued
on the amount of the Loan not so borrowed or renewed, or which so becomes due,
or which is so paid or prepaid, as the case may be, from and including the date
on which such borrowing or renewal would have been made pursuant to such notice,
or on which such part of such Funding Segment so becomes due, or on which such
part of such Funding Segment is so paid or prepaid, as the case may be, to the
last day of the Funding Period applicable to such amount (or, in the case of a
failure to borrow or renew, the Funding Period that would have been applicable
to such amount but for such failure), in each case at the applicable rate of
interest for such amount provided for herein (excluding, however, the Applicable
Margin included therein, if any), over (y) the aggregate amount of interest (as
determined in good faith by such Lender) which would have accrued to such Lender
on such amount for such period by placing such amount on deposit for such period
with leading banks in the applicable interbank market. A certificate of a Lender
Party claiming compensation under this Section 2.10(b) and setting forth the
additional
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amount to be paid to it and indicating in reasonable detail the computation
thereof shall be conclusive absent manifest error.
2.11 TAXES.
(a) PAYMENT NET OF TAXES. All payments made by the Borrower
under this Agreement or any other Loan Document shall be made free and clear of,
and without reduction or withholding for, any and all present or future taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, and all
liabilities with respect thereto, excluding (x) in the case of each Lender
Party, net income taxes imposed on such Lender Party by the United States, and
net income taxes and franchise taxes imposed on such Lender Party by the
jurisdiction under the laws of which such Lender Party is organized or by any
political subdivision thereof, and (y) in the case of each Lender, net income
taxes and franchise taxes imposed on such Lender by the jurisdiction in which
the Lender's Lending Office is located or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges or withholdings
being hereinafter called "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable under this Agreement or
any Loan Document to any Lender Party, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions (including without
limitation deductions applicable to additional sums payable under this Section
2.11) such Lender Party receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions, and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law.
(b) OTHER TAXES. The Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made under this Agreement or any
other Loan Document or from the execution, delivery of, or otherwise with
respect to , this Agreement or any other Loan Document (hereinafter referred to
as "Other Taxes").
(c) INDEMNITY. The Borrower hereby indemnifies each Lender
Party for the full amount of all Taxes and Other Taxes (including without
limitation any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.11 paid by such Lender Party and any liability
(including without limitation penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Such indemnification shall be made within 15 days
after the date such Lender Party makes demand therefor (which demand shall
identify in reasonable detail the nature and the amount of Taxes and Other Taxes
for which indemnification is being sought).
(d) RECEIPTS, ETC. Within 30 days after the date of any
payment of Taxes or Other Taxes, the Borrower will furnish to the Administrative
Agent the original or a certified copy of a receipt evidencing payment thereof.
(e) SURVIVAL, ETC. Without prejudice to the survival of any
other obligation of the Borrower under this Agreement or the other Loan
Documents, the obligations of the Borrower contained in this Section 2.11 shall
survive the payment in full of all other obligations of the Borrower under this
Agreement and the other Loan Documents, termination of all commitments to extend
credit under the Loan Documents, termination of this Agreement, and all other
events and circumstances whatever. Nothing in this Section 2.11 or otherwise in
this Agreement shall require any Lender Party to disclose to the Borrower any of
its tax returns (or any other information that it deems to be confidential or
proprietary).
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(f) WITHHOLDING TAX EXEMPTION.
(i) PROVISION OF FORMS. Each Lender organized under the laws
of a jurisdiction outside the United States shall, on or prior to the date it
becomes party to this Agreement, and from time to time thereafter if requested
in writing by the Borrower or the Administrative Agent, provide the Borrower and
the Administrative Agent each with an original Internal Revenue Service Form
W-8ECI or W-8BEN, as appropriate, or any successor form prescribed by the
Internal Revenue Service, certifying such Lender's status for purposes of
determining exemption from, or reduced rate applicable to, United States
withholding taxes with respect to such Lender under this Agreement and the other
Loan Documents; provided, that a Lender shall not be obligated to provide any
such form after the date such Lender becomes party to this Agreement if such
Lender is not legally able to do so.
(ii) INDEMNIFICATION LIMITED IN CERTAIN CIRCUMSTANCES. The
Borrower shall not be required to indemnify any Lender, or to pay any additional
amounts to any Lender, in respect of United States withholding taxes (or any
withholding tax imposed by a state of the United States that applies only when
such United States withholding tax is imposed), pursuant to Section 2.11(a) or
2.11(c), to the extent that (A) the obligation to withhold amount with respect
to United States withholding tax existed on the date such Lender became a party
to this Agreement; provided, that this clause (A) shall not apply to a Lender
that became a Lender as a result of an assignment made or other action taken at
the request of the Borrower, or (B) the obligation to make such indemnification
or to pay such additional amount would not have arisen but for a failure of such
Lender to comply with the provisions of Section 2.11(f)(i).
2.12 CHANGE OF LENDING OFFICE. In the event that a Lender
becomes an Affected Lender under Section 2.03(e)(ii), or in the event that a
Lender requests compensation from the Borrower pursuant to Section 2.10(a) or
2.11, then, at the request of the Borrower, such Lender will change the
jurisdiction of its Lending Office if, in the judgment of such Lender, such
change will eliminate or mitigate a similar event which may thereafter accrue
and is not otherwise materially disadvantageous to such Lender.
2.13 SUBSTITUTION OF LENDER. In the event that a Lender
becomes an Affected Lender under Section 2.03(e)(ii), or in the event that a
Lender requests compensation from the Borrower pursuant to Section 2.10(a) or
2.11, then, if the Borrower designates one or more substitute institutions to
purchase the Loans and assume the Commitments of such Lender, such Lender will
at the Borrower's request sell its Loans and assign its rights under this
Agreement to such substitute institutions with reasonable promptness after such
designation in accordance with Section 9.14(c) for a payment equal to the
principal amount of its Loans, plus all accrued and unpaid interest and fees to
but excluding the date of purchase, plus any other amounts accrued or payable to
such Lender under this Agreement to but excluding the date of purchase, plus any
amount that would be payable to such Lender under Section 2.10(b) (as if such
purchase were treated as a prepayment of the outstanding Loans to such Lender),
together with any other loss or expense incurred by it (or by a Participant in
the related Loan or Commitment). Nothing in this Section 2.13 limits the rights
of the Administrative Agent under Section 9.14(c) or any other provision of the
Loan Documents.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower hereby represents and warrants to each Lender
Party as follows:
3.01 CORPORATE STATUS. The Borrower and each Subsidiary of the
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation. The Borrower and each
Subsidiary of the Borrower has corporate power and authority to own its property
and to transact the business in which it is engaged or presently proposes to
engage. The Borrower and each Subsidiary of the Borrower is duly qualified to do
business as a foreign corporation and is in good standing in all jurisdictions
in which the ownership of its properties or the nature of its activities or both
makes such qualification necessary or advisable, except for matters that,
individually or in the aggregate, do not have a Material Adverse Effect.
3.02 CORPORATE POWER AND AUTHORIZATION. The Borrower and each
other Loan Party has corporate power and authority to execute, deliver, perform,
and take all actions contemplated by, each Loan Document to which it is a party,
and all such action has been duly and validly authorized by all necessary
corporate proceedings on its part. Without limitation of the foregoing, the
Borrower has the corporate power and authority to borrow pursuant to the Loan
Documents to the fullest extent permitted hereby and thereby from time to time,
and has taken all necessary corporate action to authorize such borrowings.
3.03 EXECUTION AND BINDING EFFECT. This Agreement and each
other Loan Document to which the Borrower or any other Loan Party is a party and
which is executed and delivered or required to be executed and delivered on or
before the date as of which this representation and warranty is made, or deemed
made, has been duly and validly executed and delivered by the Borrower or such
Loan Party, as the case may be. This Agreement and each such Loan Document
constitutes, and each other Loan Document when executed and delivered by the
Borrower or such Loan Party, as the case may be, will constitute, the legal,
valid and binding obligation of the Borrower or such Loan Party, as the case may
be, enforceable against the Borrower or such Loan Party, as the case may be, in
accordance with its terms.
3.04 GOVERNMENTAL APPROVALS AND FILINGS. No approval, order,
consent, authorization, certificate, license, permit or validation of, or
exemption or other action by, or filing, recording or registration with, or
notice to, any Governmental Authority (collectively, "Governmental Action") is
or will be necessary or reasonably advisable in connection with the execution
and delivery of any Loan Document, consummation of the transactions herein or
therein contemplated, performance of or compliance with the terms and conditions
hereof or thereof or to ensure the legality, validity, binding effect,
enforceability or admissibility in evidence hereof or thereof, except for such
Governmental Actions as have been obtained or made and are in full force and
effect. Each such Governmental Action has been duly obtained or made, as the
case may be, and is in full force and effect. There is no action, suit,
proceeding or investigation pending or (to the Borrower's knowledge after due
inquiry) threatened which seeks or may result in the reversal, rescission,
termination, modification or suspension of any such Governmental Action.
3.05 ABSENCE OF CONFLICTS. Neither the execution and delivery
of any Loan Document, nor consummation of the transactions herein or therein
contemplated, nor performance of or compliance with the terms and conditions
hereof or thereof, does or will
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(a) violate or conflict with any Law, or
(b) violate or conflict with, or constitute a default under,
or result in (or give rise to any right, contingent or otherwise, of
any Person to cause) any termination, cancellation, prepayment or
acceleration of performance of, or result in the creation or imposition
of (or give rise to any obligation, contingent or other, to create or
impose) any Lien upon any property of the Borrower or any Subsidiary of
the Borrower (except for any Lien in favor of the Lender Parties
securing the Obligations) pursuant to, or otherwise result in (or give
rise to any right, contingent or other, of any Person to cause) any
change in any right, power, privilege, duty or obligation of the
Borrower or any Subsidiary of the Borrower under or in connection with,
(i) the articles of incorporation or by-laws (or other constitutional
documents) of the Borrower or any Subsidiary of the Borrower, or (ii)
any agreement or instrument to which the Borrower or any Subsidiary of
the Borrower is a party or by which any of them or any of their
respective properties may be subject or bound,
except, in the case of the foregoing clause (b)(ii), for matters that
individually or in the aggregate, do not have a Material Adverse Effect.
3.06 AUDITED FINANCIAL STATEMENTS. The Borrower has furnished
to each Lender a copy of the consolidated balance sheets of the Borrower and its
consolidated Subsidiaries as of June 30, 2000 and June 30, 1999 and the related
consolidated statements of income, cash flows and changes in shareholders'
equity for the fiscal years then ended, as examined and reported on by Arthur
Andersen LLP, independent certified public accountants for the Borrower, as set
forth in the Borrower's reports on Form 10-K for 2000 and 1999. Such financial
statements (including the notes thereto) present fairly, in all material
respects, the financial condition of the Borrower and its consolidated
Subsidiaries as of the end of each such fiscal year and the results of their
operations, cash flows and changes in stockholders' equity for the fiscal years
then ended, all in conformity with GAAP.
3.07 INTERIM FINANCIAL STATEMENTS. The Borrower has furnished
to each Lender a copy of the interim consolidated balance sheets of the Borrower
and its consolidated Subsidiaries as of the end of the first fiscal quarter of
the fiscal year beginning July 1, 2000 and the related consolidated statements
of income and cash flows for such fiscal quarter, as set forth in the Borrower's
report on Form 10-Q for such fiscal quarter. Such financial statements
(including the notes thereto) present fairly, in all material respects, the
financial condition of the Borrower and its consolidated Subsidiaries as of the
end of such fiscal quarter and the results of their operations and their cash
flows for such fiscal quarter, all in conformity with GAAP, subject to normal
and recurring year-end audit adjustments which are not in the aggregate
material, and except that such financial statements do not contain all of the
footnote disclosures required by GAAP.
3.08 ABSENCE OF UNDISCLOSED LIABILITIES. Neither the Borrower
nor any Subsidiary of the Borrower has any liability or obligation of any nature
(whether absolute, accrued, contingent or other, whether or not due, including
but not limited to forward or long-term commitments or unrealized or anticipated
losses from unfavorable commitments), except (a) liabilities and obligations
disclosed in the financial statements referred to in Sections 3.06 and 3.07, (b)
liabilities and obligations incurred after June 30, 2000 in the ordinary course
of business and consistent with past practices, (c) obligations (including
transaction costs) in connection with this Agreement, and (d) matters that,
individually or in the aggregate, do not have a Material Adverse Effect.
3.09 ACCURATE AND COMPLETE DISCLOSURE. All written information
heretofore, contemporaneously or hereafter provided by or on behalf of the
Borrower or any Subsidiary of the
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Borrower to any Lender Party pursuant to or in connection with any Loan Document
or any transaction contemplated hereby or thereby is or will be (as the case may
be) true and accurate in all material respects on the date as of which such
information is dated (or, if not dated, when received by such Lender Party) and
does not or will not (as the case may be) omit to state any material fact
necessary to make such information not misleading at such time in light of the
circumstances in which it was provided. The Borrower has disclosed to the
Administrative Agent every occurrence or event known to the Borrower which has,
or which could have so far as the Borrower can reasonably foresee, a Material
Adverse Effect (exclusive of political, social or economic events of general
national or global scope).
3.10 SOLVENCY. On the date of each Loan or other extension of
credit under this Agreement and after giving effect to application of the
proceeds thereof in accordance with the terms of the Loan Documents, each Loan
Party and each Significant Subsidiary of the Borrower is and will be Solvent.
3.11 MARGIN REGULATIONS. Neither any extension of credit under
this Agreement nor any use of proceeds of any such extension of credit will
violate or conflict with the Margin Regulations. No part of the proceeds of any
extension of credit under this Agreement will be used for the purpose of buying
or carrying Margin Stock or to extend credit to others for the purpose of buying
or carrying any Margin Stock. Neither the Borrower nor any Subsidiary of the
Borrower is engaged in the business of extending credit to others for the
purpose of buying or carrying Margin Stock. At the time of the making of each
Loan, not more than 25% of the value of the assets of the Borrower and its
Subsidiaries taken as a whole will constitute Margin Stock.
3.12 REGULATORY RESTRICTIONS. Neither the Borrower nor any
Subsidiary of the Borrower 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, (b) a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of either a "holding company"
or a "subsidiary company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended, or (c) subject to any other Law which purports
to restrict or regulate its ability to borrow money or obtain credit.
3.13 LITIGATION. There is no pending or (to the knowledge of
the Borrower after due inquiry) threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or affecting the
Borrower or any Subsidiary of the Borrower, except for (a) matters set forth in
Schedule 3.13, (b) matters described in the financial statements referred to in
Sections 3.06 and 3.07 and (c) matters that if adversely decided, individually
or in the aggregate, would not reasonably be expected to have a Material Adverse
Effect.
3.14 ABSENCE OF OTHER CONFLICTS. Neither the Borrower nor any
Subsidiary of the Borrower is in violation of or conflict with, or is subject to
any contingent liability on account of any violation of or conflict with:
(a) any Law,
(b) its articles of incorporation or by-laws (or other
constitutional documents), or
(c) any agreement or instrument to which it is party or by
which it or any of its properties may be subject or bound,
except for matters that, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect.
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3.15 INSURANCE. The Borrower and each Subsidiary of the
Borrower maintains with financially sound and reputable insurers (not related to
or affiliated with the Borrower or any Subsidiary of the Borrower) insurance
with respect to its properties and business and against at least such
liabilities, casualties and contingencies and in at least such types and amounts
as is customary in the case of corporations engaged in the same or a similar
business or having similar properties similarly situated.
3.16 TITLE TO PROPERTY. The Borrower and each Subsidiary of
the Borrower has good and marketable title to all real property owned or
purported to be owned by it and good title to all other property of whatever
nature owned or purported to be owned by it, in each case necessary or material
to its operations, including but not limited to the property reflected in the
most recent audited balance sheets referred to in Section 3.06 or submitted
pursuant to Section 5.01(a), as the case may be (except as sold or otherwise
disposed of after the date of such balance sheets in transactions which, before
the effective date of this Agreement, were permitted by the Existing Credit
Facility, and after the effective date of this Agreement, are permitted by the
Loan Documents), in each case free and clear of all Liens, other than Permitted
Liens.
3.17 INTELLECTUAL PROPERTY. The Borrower and each Subsidiary
of the Borrower owns, or is licensed or otherwise has the right to use, all the
patents, trademarks, service marks, names (trade, service, fictitious or other),
copyrights, technology (including but not limited to computer programs and
software), know-how, processes, databases and other rights, free from burdensome
restrictions, necessary to own and operate its properties and to carry on its
business as presently conducted and presently planned to be conducted without
conflict with the rights of others, except for matters that, individually or in
the aggregate, do not have a Material Adverse Effect.
3.18 TAXES. All tax and information returns required to be
filed by or on behalf of the Borrower or any Subsidiary of the Borrower have
been properly and timely prepared, executed and filed, except for matters that,
individually or in the aggregate, do not have a Material Adverse Effect. All
taxes, assessments, fees and other governmental charges upon the Borrower or any
Subsidiary of the Borrower or upon any of their respective properties, incomes,
sales or franchises which are due and payable have been paid, other than those
not yet delinquent and payable without premium or penalty, except for matters
that, individually or in the aggregate, do not have a Material Adverse Effect.
The reserves and provisions for taxes on the books of the Borrower and each
Subsidiary of the Borrower for all open years and for its current fiscal period
are adequate in accordance with GAAP. Neither the Borrower nor any Subsidiary of
the Borrower knows of any proposed additional assessment or basis for any
assessment for additional taxes (whether or not reserved against), except for
matters that, individually or in the aggregate, do not have a Material Adverse
Effect.
3.19 EMPLOYEE BENEFITS. Each Plan and, to the knowledge of the
Borrower, each Multiemployer Plan, is in compliance in all material respects
with, and has been administered in all material respects in compliance with, its
terms and the applicable provisions of ERISA, the Code, and each other
applicable state, federal and foreign law. No Pension-Related Event has occurred
and is continuing. Neither the Borrower nor any Controlled Group Member has
incurred any liability to the PBGC, other than liabilities for payment of
periodic PBGC payments
3.20 ENVIRONMENTAL MATTERS. In the ordinary course of its
business, the Borrower reviews the effect of applicable Environmental Laws on
the business, operations and properties of the Borrower and its Subsidiaries, in
the course of which it identifies and evaluates actual and potential
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associated liabilities and costs (including without limitation any capital or
operating expenditures required for clean-up or closure of properties presently
or previously owned or operated, any capital or operating expenditures required
to achieve or maintain compliance with environmental protection standards
imposed by Law or as a condition of any license, permit or contract, any related
constraints on operating activities, including any periodic or permanent
shutdown of any facility, restriction on transportation of any substance or
reduction in the level of or change in the nature of operations and any actual
or potential liabilities to third parties, including employees, and any related
costs and expenses). On the basis of its review, the Borrower has reasonably
concluded that Environmental Laws do not have a Material Adverse Effect.
ARTICLE IV
CONDITIONS
4.01 CONDITIONS TO THE CLOSING DATE. The occurrence of the
Closing Date and the obligation of each Lender to make any Loan on or after the
Closing Date is subject to performance by each of the Loan Parties of their
respective obligations to be performed under the Loan Documents on or before
such date, to satisfaction of any conditions precedent set forth elsewhere in
the Loan Documents and to satisfaction of the following further conditions
precedent:
(a) AGREEMENTS; NOTES. The Administrative Agent shall have
received this Agreement, with a counterpart for each Lender, and Notes duly
executed on behalf of the Borrower and conforming to the requirements of this
Agreement.
(b) SUBSIDIARY GUARANTY. The Administrative Agent shall have
received the Subsidiary Guaranty, duly executed on behalf of each Subsidiary, if
any, which as of the date hereof satisfies the criteria set forth in Section
5.12 for becoming a Subsidiary Guarantor.
(c) CORPORATE PROCEEDINGS. The Administrative Agent shall have
received certificates by the Secretary or Assistant Secretary of each Loan Party
dated as of the Closing Date as to (i) true copies of the articles of
incorporation and by-laws (or other constitutional documents) of each Loan Party
in effect on the Closing Date, (ii) true copies of all corporate action taken by
each Loan Party relative to the Loan Documents, and (iii) the incumbency and
signature of the respective officers of each Loan Party executing the Loan
Documents to which such Loan Party is party, together with satisfactory evidence
of the incumbency of such Secretary or Assistant Secretary. The Administrative
Agent shall have received certificates from the appropriate Secretary of State
or other applicable Governmental Authority, dated not more than 30 days before
the Closing Date, showing the good standing of each Loan Party in its
jurisdiction of incorporation.
(d) NOTICE. Notice with respect to such Loan shall have been
given by the Borrower in accordance with Article II.
(e) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by each Loan Party herein and in each other
Loan Document shall be true and correct in all material respects on and as of
such date as if made on and as of such date, both before and after giving effect
to any Loans requested to be made on the Closing Date.
(f) NO DEFAULT. No Event of Default or Potential Default shall
have occurred and be continuing on the Closing Date or after giving effect to
any Loans requested to be made on the Closing Date.
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(g) NO VIOLATIONS OF LAW. Neither the making nor use of the
Loans shall cause any Lender Party to violate any Law.
(h) NO MATERIAL ADVERSE CHANGE. There shall not have occurred
a material adverse change in the business, operations, condition (financial or
other) or prospects of the Borrower and its Subsidiaries taken as a whole since
June 30, 2000, except as reflected in the financial statements furnished
pursuant to Section 3.07.
(i) LITIGATION. Without limiting the generality of Sections
3.13 and 4.01(e), there shall not be pending or (to the knowledge of the
Borrower after due inquiry, threatened) any action, suit, proceeding or
investigation by or before any Governmental Authority which (i) seeks to
challenge, prevent or declare illegal any transaction contemplated by the Loan
Documents or (ii) could have a material adverse effect on the business,
operations, condition (financial or other) or prospects of the Borrower and its
Subsidiaries taken as a whole.
(j) OFFICERS' CERTIFICATES. The Administrative Agent shall
have received a certificate dated the Closing Date, signed by a Responsible
Officer of the Borrower, in the form attached hereto as Exhibit D and as to such
other matters as the Administrative Agent may request.
(k) LEGAL OPINIONS. The Administrative Agent shall have
received the following opinion, addressed to the Administrative Agent and each
Lender and dated the Closing Date: opinion of Buchanan Ingersoll Professional
Corporation, counsel to the Borrower and its Subsidiaries, in substantially the
form set forth as Exhibit E.
(l) REPAYMENT OF CERTAIN EXISTING INDEBTEDNESS. Substantially
simultaneously with any funding under this Agreement on the Closing Date, the
Borrower shall have used the Dollar Equivalent of the proceeds of the Loans
borrowed hereunder to repay any outstanding principal of loans made pursuant to
the Existing Credit Facility and, to the extent such amount is used to repay
Revolving Credit Loans (as defined in the Existing Credit Facility), the
Revolving Credit Committed Amounts (as defined in the Existing Credit Facility)
shall be permanently reduced in an aggregate amount equal to the principal
amount of such Revolving Credit Loans repaid on such date. To the extent no
loans are outstanding under the Existing Credit Facility, or the aggregate
amount of Loans borrowed hereunder exceed the aggregate principal amount of
loans outstanding under the Existing Credit Facility, the Revolving Credit
Committed Amounts (as defined in the Existing Credit Facility) shall be reduced
by the Dollar Equivalent of the principal amount of such Loans or such excess,
as the case may be.
(m) FEES, EXPENSES, ETC. All fees and other compensation
required to be paid to the Administrative Agent or the Lenders pursuant hereto
or any other agreement on or prior to the Closing Date shall have been paid or
received.
(n) ADDITIONAL MATTERS. All corporate and other proceedings,
and all documents, instruments and other matters in connection with the
transactions contemplated by the Loan Documents, shall be satisfactory in form
and substance to the Administrative Agent. The Administrative Agent shall have
received such other documents, instruments and other items as the Administrative
Agent may reasonably request.
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4.02 CONDITIONS TO EXTENSION OF CREDIT AFTER THE CLOSING DATE.
The obligation of each Lender to make any Loan (other than on the Closing Date)
is subject to performance by each of the Loan Parties of their respective
obligations to be performed under the Loan Documents on or before the date such
Loan is made, to satisfaction of any conditions precedent set forth elsewhere in
the Loan Documents and to satisfaction of the following further conditions
precedent:
(a) BASIC CONDITIONS. The aggregate outstanding principal
amount of Loans after giving effect to the Loans to be incurred on such date
will not exceed the aggregate Committed Amounts.
(b) NOTICE. Notice with respect to such Loan shall have been
given by the Borrower in accordance with Article II.
(c) REPRESENTATIONS AND WARRANTIES. Each of the
representations and warranties made by each Loan Party herein and in each other
Loan Document shall be true and correct in all material respects on and as of
such date as if made on and as of such date, both before and after giving effect
to the Loans requested to be made on such date (except for Sections 3.06 and
3.07, which are made only as of the date of this Agreement).
(d) NO DEFAULT. No Event of Default or Potential Default shall
have occurred and be continuing on such date or after giving effect to the Loans
requested to be made (including any deemed request) on such date.
(e) NO VIOLATIONS OF LAW. Neither the making nor use of the
Loans shall cause any Lender Party to violate any Law.
(f) NO MATERIAL ADVERSE CHANGE. There shall not have occurred
a material adverse change in the business, operations, condition (financial or
other) or prospects of the Borrower and its Subsidiaries taken as a whole since
June 30, 2000, except as reflected in the financial statements furnished
pursuant to Section 3.07.
(g) REPAYMENT OF CERTAIN EXISTING INDEBTEDNESS. With respect
to Loans made after the Closing Date, substantially simultaneously with funding
under this Agreement, the Borrower shall have used the Dollar Equivalent of the
proceeds of the Loans borrowed hereunder to repay any outstanding principal of
loans made pursuant to the Existing Credit Facility and, to the extent such
amount is used to repay Revolving Credit Loans (as defined in the Existing
Credit Facility), the Revolving Credit Committed Amounts (as defined in the
Existing Credit Facility) shall be permanently reduced in an aggregate amount
equal to the principal amount of such Revolving Credit Loans repaid on such
date. To the extent no loans are outstanding under the Existing Credit Facility,
or the aggregate amount of Loans borrowed hereunder exceed the aggregate
principal amount of loans outstanding under the Existing Credit Facility, the
Revolving Credit Committed Amounts (as defined in the Existing Credit Facility)
shall be reduced by the Dollar Equivalent of the principal amount of such Loans
or such excess, as the case may be. Notwithstanding the foregoing provisions of
this clause (g), the aggregate principal amount of loans and commitments under
the Existing Credit Facility required to be repaid or reduced, as the case may
be, pursuant to this clause (g) in respect of any borrowing of Loans hereunder
shall not exceed the amount by which such borrowing causes the aggregate
outstanding principal amount of Loans hereunder at the time of incurrence
thereof to exceed the Repayment Threshold Amount.
Each request (including any deemed request) by the Borrower for any Loan shall
constitute a representation and warranty by the Borrower that the conditions set
forth in this Section 4.02 have been satisfied as of the date of such request.
Failure of the
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Administrative Agent to receive notice from the Borrower to the contrary before
such Loan is made shall constitute a further representation and warranty by the
Borrower that the conditions referred to in this Section 4.02 have been
satisfied as of the date such Loan is made.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower hereby covenants to each Lender Party as follows:
5.01 BASIC REPORTING REQUIREMENTS.
(a) ANNUAL AUDIT REPORTS. As soon as practicable, and in any
event within 120 days after the close of each fiscal year of the Borrower, the
Borrower shall furnish to the Administrative Agent, with a copy for each Lender,
consolidated statements of income, cash flows and changes in stockholders'
equity of the Borrower and its consolidated Subsidiaries for such fiscal year
and a consolidated balance sheet for the Borrower and its consolidated
Subsidiaries as of the close of such year, and notes to each, all in reasonable
detail, prepared on a comparative basis in accordance with GAAP. Such financial
statements shall be accompanied by an opinion of Arthur Andersen LLP or other
independent certified public accountants of recognized national standing
selected by the Borrower and reasonably satisfactory to the Administrative
Agent. Such opinion shall be free of any exception, qualification or explanation
not reasonably acceptable to the Administrative Agent (and in any event shall be
free of any exception, qualification or explanation relating to ability to
continue as a going concern, a limited scope of examination or independence).
Such opinion in any event shall contain a written statement of such accountants
substantially to the effect that (x) such accountants audited such consolidated
financial statements in accordance with generally accepted auditing standards
and (y) in the opinion of such accountants such audited financial statements
present fairly, in all material respects, the financial position of the Borrower
and its consolidated Subsidiaries as of the end of such fiscal year and the
results of their operations and their cash flows and changes in stockholders'
equity for such fiscal year, in conformity with GAAP.
(b) QUARTERLY REPORTS. As soon as practicable, and in any
event within 60 days after the close of each of the first three fiscal quarters
of each fiscal year of the Borrower, the Borrower shall furnish to the
Administrative Agent, with a copy for each Lender, consolidated statements of
income, cash flows and stockholders' equity of the Borrower and its consolidated
Subsidiaries for such fiscal quarter and for the period from the beginning of
such fiscal year to the end of such fiscal quarter, and consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as of the close of such
fiscal quarter, and notes to each, all in reasonable detail, setting forth in
comparative form the corresponding figures for the same periods or as of the
same date during the preceding fiscal year (except for the consolidated balance
sheet, which shall set forth in comparative form the corresponding balance sheet
as of the prior fiscal year end). Such financial statements shall be certified
by a Responsible Officer of the Borrower as presenting fairly, in all material
respects, the financial position of the Borrower and its consolidated
Subsidiaries as of the end of such fiscal quarter and the consolidated results
of their operations and their cash flows and changes in stockholders' equity for
such fiscal quarter, in conformity with GAAP, subject to normal and recurring
year-end audit adjustments.
(c) COMPLIANCE CERTIFICATES. Concurrently with the delivery of
the financial statements referred to in Sections 5.01(a) and 5.01(b), the
Borrower shall deliver, or cause to be delivered, to the Administrative Agent,
with a copy for each Lender, a
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Compliance Certificate in substantially the form set forth as Exhibit C, duly
completed and signed by a Responsible Officer of the Borrower.
(d) CERTAIN OTHER REPORTS AND INFORMATION. Promptly upon the
earlier of the filing thereof or their becoming available for distribution, the
Borrower shall deliver, or cause to be delivered, to the Administrative Agent,
with a copy for each Lender, a copy of (i) all regular or special reports,
registration statements (other than the exhibits thereto and any registrations
statements on Form S-8 or its equivalent) and amendments to the foregoing which
the Borrower or any Subsidiary of the Borrower shall file with the Securities
and Exchange Commission (or any successor thereto), and (ii) all reports, proxy
statements, financial statements and other information distributed by the
Borrower or any Subsidiary of the Borrower to its security holders or the
financial community generally.
(e) FURTHER INFORMATION. The Borrower will promptly furnish,
or cause to be furnished, to the Administrative Agent, with a copy for each
Lender, such other information and in such form as the Administrative Agent or
any Lender may reasonably request from time to time.
(f) NOTICE OF CERTAIN EVENTS. Promptly upon becoming aware of
any of the following, the Borrower shall give the Administrative Agent notice
thereof, together with a written statement of a Responsible Officer of the
Borrower setting forth the details thereof and any action with respect thereto
taken or proposed to be taken by the Borrower, and the Administrative Agent
shall promptly notify each Lender thereof:
(i) Any Event of Default or Potential Default;
(ii) Any material adverse change in the business, operations,
condition (financial or other) or prospects of the Borrower and its
Subsidiaries taken as a whole;
(iii) Any pending or threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or
affecting the Borrower or any Subsidiary of the Borrower, except for
matters which, if adversely decided, individually or in the aggregate,
would not have a Material Adverse Effect;
(iv) Any material violation, breach or default by the Borrower
or any Subsidiary of the Borrower of or under any agreement or
instrument material to the business, operations, condition (financial
or other) or prospects of the Borrower and its Subsidiaries taken as a
whole;
(v) Any Pension-Related Event, other than (w) any Reportable
Event described in subsection (i) of the definition of such term as to
which the 30 day notice requirement to the PBGC is waived under
applicable regulations, and (x) any Pension-Related Event described in
subsection (d) or (f) of the definition thereof which involves a
liability of the Borrower, any Subsidiary of the Borrower or any
Controlled Group Member that has not been fully discharged (or a
contingent or other potential liability that represents a material risk
of becoming an actual liability) of less than $1,000,000 in the
aggregate for all such Persons. Such notice shall be accompanied by the
following: (A) a copy of any notice, request, return, petition or other
document received by the Borrower, any Subsidiary of the Borrower or
any Controlled Group Member from any Person, or which has been or is to
be filed with or provided to any Person (including, without limitation,
the Internal Revenue Service, the Department of Labor, the PBGC or any
Plan participant, beneficiary, alternate payee or employer
representative), in connection with such Pension-Related Event, and (B)
in
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the case of any Pension-Related Event with respect to a Plan, the most
recent Annual Report (5500 Series), with attachments thereto, and if
such Plan is required by applicable Law to have an actuarial valuation
report, the most recent actuarial valuation report, for such Plan; and
(vi) Any Environmental Claim pending or threatened against any
Loan Party or any Subsidiary of any Loan Party or any of their
respective Environmental Affiliates, or any past or present acts,
omissions, events or circumstances (including but not limited to any
dumping, leaching, disposition, removal, abandonment, escape, emission,
discharge or release of any Environmental Concern Material at, on or
under any facility or property now or previously owned, operated or
leased by any Loan Party or any Subsidiary of any Loan Party or any of
their respective Environmental Affiliates) that could form the basis of
such Environmental Claim, which Environmental Claim, if adversely
resolved, individually or in the aggregate, would be likely to have a
Material Adverse Effect.
(g) VISITATION; VERIFICATION. The Borrower shall permit such
Persons as the Administrative Agent or any Lender may designate from time to
time to visit and inspect any of the properties of the Borrower and any
Subsidiary of the Borrower, to examine their respective books and records and
take copies and extracts therefrom and to discuss their respective affairs with
their respective directors, officers, employees and independent accountants, all
upon reasonable notice to the Borrower, at such reasonable times (it being
understood that, so long as no Event of Default or Potential Default has
occurred and is continuing, such times shall be during normal business hours)
and as often as may reasonably be requested by the Administrative Agent or any
Lender; provided that, with respect to any Person who is not an employee of a
Lender, such person shall agree to hold in confidence, in accordance with
Section 9.15, all confidential information about the Borrower or any Subsidiary
of the Borrower obtained by such Person during such visit and inspection. The
Borrower hereby authorizes such officers, employees and independent accountants
to discuss with the Administrative Agent or any Lender the affairs of the
Borrower and its Subsidiaries.
5.02 INSURANCE. The Borrower shall, and shall cause each of
its Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business and against such
liabilities, casualties and contingencies and of such types as is customary in
the case of Persons engaged in the same or a similar business or having similar
properties similarly situated.
5.03 PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND PRIORITY
CLAIMS. The Borrower shall, and shall cause each of its Subsidiaries to, pay and
discharge, or cause to be paid and discharged,
(a) on or prior to the date on which penalties attach thereto,
all taxes, assessments and other governmental charges imposed upon it,
or any of them, or any of its, or any of their, properties;
(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other
like Persons which, if unpaid, might result in the creation of a Lien
upon any such property; and
(c) on or prior to the date when due, all other lawful claims
which, if unpaid, might result in the creation of a Lien upon any such
property or which, if unpaid, might give rise to a claim entitled to
priority over general creditors of the Borrower or such Subsidiary in a
case under Title 11 (Bankruptcy) of the United States Code, as amended,
or under foreign bankruptcy, insolvency or similar Laws;
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provided, that, unless and until foreclosure, distraint, levy, sale or similar
proceedings shall have been commenced, the Borrower or such Subsidiary need not
pay or discharge, or cause the payment or discharge, of any such tax,
assessment, charge or claim above so long as (x) such reserves or other
appropriate provisions as may be required by GAAP shall have been made therefor,
and (y) such failure to pay or discharge would not have a Material Adverse
Effect.
5.04 PRESERVATION OF CORPORATE STATUS. The Borrower shall, and
shall cause each of its Subsidiaries to, maintain its status as a corporation
duly organized, validly existing and, to the extent applicable, in good standing
under the laws of its jurisdiction of organization; provided, that (i) so long
as no Event of Default or Potential Default then exists or would be created
thereby, the Borrower may terminate the corporate existence or permit to lapse
the good standing or existence of any of its Subsidiaries (other than a Loan
Party) if, in the good faith judgment of the appropriate officers of the
Borrower, such termination would not be disadvantageous to the Borrower or the
Lender Parties in any material respect and (ii) the Borrower and its
Subsidiaries which are Loan Parties may enter into transactions permitted by
Section 6.04. The Borrower shall, and shall cause each of its Subsidiaries to,
at all times be duly qualified to do business as a foreign corporation and, to
the extent applicable, in good standing in all jurisdictions in which the
ownership of its properties or the nature of its business or both make such
qualification necessary or advisable, except for matters that, individually or
in the aggregate, do not, and would not be reasonably likely to, have a Material
Adverse Effect.
5.05 GOVERNMENTAL APPROVALS AND FILINGS. The Borrower shall,
and shall cause each of its Subsidiaries to, keep and maintain in full force and
effect all Governmental Actions necessary or reasonably advisable in connection
with execution and delivery of any Loan Document, consummation of the
transactions herein or therein contemplated, performance of or compliance with
the terms and conditions hereof or thereof, or to ensure the legality, validity,
binding effect, enforceability or admissibility in evidence hereof or thereof.
5.06 MAINTENANCE OF PROPERTIES, FRANCHISES, ETC. The Borrower
shall, and shall cause each of its Subsidiaries to, (a) maintain or cause to be
maintained in good repair, working order and condition the properties now or
hereafter owned, leased or otherwise possessed by it and shall make or cause to
be made all needful and proper repairs, renewals, replacements and improvements
thereto so that the business carried on in connection therewith may be properly
and advantageously conducted at all times, except where failure to do so does
not, and would not be reasonably likely to, have a Material Adverse Effect, and
(b) maintain and hold in full force and effect all franchises, licenses,
permits, certificates, authorizations, qualification, accreditations and other
rights, consents and approvals (whether issued, made or given by a Governmental
Authority or otherwise), necessary to own and operate its properties and to
carry on its business as presently conducted and as presently planned to be
conducted, except where failure to do so does not, and would not be reasonably
likely to, have a Material Adverse Effect.
5.07 AVOIDANCE OF OTHER CONFLICTS. The Borrower shall not, and
shall not permit any of its Subsidiaries to, violate or conflict with, be in
violation of or conflict with, or be or remain subject to any liability
(contingent or other) on account of any violation or conflict with
(a) any Law,
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(b) its articles of incorporation or by-laws (or other
constitutional documents), or
(c) any agreement or instrument to which it or any of its
Subsidiaries is a party or by which any of them or any of their
respective properties may be subject or bound,
except for matters that, individually or in the aggregate, do not, and would not
be reasonably likely to, have a Material Adverse Effect.
5.08 FINANCIAL ACCOUNTING PRACTICES. The Borrower shall, and
shall cause each of its Subsidiaries to, make and keep books, records and
accounts which, in reasonable detail, accurately and fairly reflect its
transactions and dispositions of its assets, and maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (a)
transactions are executed in accordance with management's general or specific
authorization, (b) transactions are recorded as necessary (i) to permit
preparation of financial statements in conformity with GAAP and (ii) to maintain
accountability for assets, (c) access to assets is permitted only in accordance
with management's general or specific authorization and (d) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
5.09 USE OF PROCEEDS. The Borrower shall apply the proceeds of
the Loans under this Agreement to refinance Indebtedness of the Borrower
pursuant to the Existing Credit Facility pursuant to the requirements of
Sections 4.01(l) and 4.02(g) and, to the extent in excess thereof, for working
capital and general corporate purposes of the Borrower. The Borrower shall not
use the proceeds of any Loans directly or indirectly for any unlawful purpose,
in any manner inconsistent with or that would violate or conflict with the
Margin Regulations, in any manner inconsistent with Section 3.11, or in any
manner inconsistent with any other provision of the Loan Documents.
5.10 CONTINUATION OF OR CHANGE IN BUSINESS. The Borrower shall
not, and shall not permit any of its Subsidiaries to, engage in any business if,
as a result, the general nature of the business, on a consolidated basis, which
would then be engaged in by the Borrower and its Subsidiaries would be
substantially and significantly changed from the general nature of the business
engaged in by the Borrower and its Subsidiaries on a consolidated basis on the
date of this Agreement, or such business is not reasonably related to the
business of the Borrower and its Subsidiaries on a consolidated basis on the
date of this Agreement. The Borrower shall continue to operate as an operating
company in substantially the manner as at the date hereof, and shall not
transfer to any Subsidiary, in any transaction or set of related transactions,
any material portion of the Borrower's operating assets.
5.11 PLANS AND MULTIEMPLOYER PLANS.
(a) REQUIRED CONTRIBUTIONS. The Borrower shall, and shall
cause each Subsidiary of the Borrower and Controlled Group Members to, make
contributions to each Plan when due in accordance with the minimum funding
requirements under ERISA and the Code applicable to such Plan and pay any
required PBGC premiums as and when due for such Plan.
(b) REQUIRED CONTRIBUTIONS TO MULTIEMPLOYER PLANS. The
Borrower shall, and shall cause each Subsidiary of the Borrower and Controlled
Group Members to, make contributions required to be made by it, or any of them,
to each Multiemployer Plan, if any, when due in accordance with its, or any of
their, obligations under any collective bargaining agreement related to such
Multiemployer Plan or participation agreements applicable to such Multiemployer
Plan, except those contributions the requirement of which are reasonably being
contested by a Controlled Group Member provided that failure
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to make such contested contributions is not a violation of applicable Law and
does not present a material risk of resulting in liability (contingent or other)
to the Borrower or any Subsidiary of the Borrower.
(c) FUNDING. The Borrower shall, and shall cause each of its
Subsidiaries to, make any required contributions to any arrangements for
providing retirement and/or death benefits when due, in accordance with the
terms of the arrangement and any minimum funding requirements which are
applicable to the arrangement from time to time.
5.12 SUBSIDIARY GUARANTORS. The Borrower will cause each
Person which is or becomes a Significant Subsidiary (other than (w) a Subsidiary
which is an Asset Securitization SPE, (x) a Subsidiary which is not organized
under the laws of the United States or a state or political subdivision
jurisdiction thereof and (y) Distribution and its Subsidiaries) to become a
Subsidiary Guarantor as promptly as practicable after (but in any event within
90 days of) the date such Person first satisfies the foregoing criteria, by
causing such Subsidiary to execute and deliver to the Administrative Agent a
supplement to the Subsidiary Guaranty, together with (i) an opinion of counsel
for such Subsidiary (which counsel may be an employee of the Borrower or such
Subsidiary) in substantially the form attached to the Subsidiary Guaranty and
covering such other matters relating to such Subsidiary Guaranty as the
Administrative Agent may reasonably request, and (ii) all documents which the
Administrative Agent may reasonably request relating to the existence of such
Subsidiary, the corporate authority for and the validity of such Subsidiary
Guaranty, and any other matters reasonably determined by the Administrative
Agent to be relevant thereto, all in form and substance reasonably satisfactory
to the Administrative Agent.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower hereby covenants to each Lender Party as follows:
6.01 FINANCIAL COVENANTS.
(a) CONSOLIDATED NET WORTH. On the Closing Date, and as of the
end of each fiscal quarter of the Borrower ending after the Closing Date,
Consolidated Net Worth shall not be less than the amount equal to the sum of (i)
$475,000,000, plus (ii) an amount equal to 50% of Consolidated Net Income for
each fiscal quarter of the Borrower commencing after September 30, 1997 and
ending on or prior to the date of determination, in each case for which
Consolidated Net Income is positive (it being understood that there shall be no
deduction on account of negative Consolidated Net Income for any fiscal quarter
of the Borrower), plus (iii) 100% of the aggregate increase in Consolidated Net
Worth on account of issuance (including without limitation any issuance in
connection with the conversion or exchange of any Indebtedness or other
obligations) after September 30, 1997 of any capital stock of the Borrower or
any of its Subsidiaries.
(b) CONSOLIDATED LEVERAGE RATIO. On the Closing Date, and as
of the end of each fiscal quarter ending after the Closing Date, the
Consolidated Leverage Ratio shall not exceed 3.50:1.00.
(c) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. As of the end of
each fiscal quarter of the Borrower ending after the Closing Date, the
Consolidated Fixed Charge Coverage Ratio shall not be less than 2.20:1.00.
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6.02 LIMITATION ON PAYMENTS ON AND MATURITIES OF
CERTAIN OBLIGATIONS.
(a) EQUITY HYBRID SECURITIES. The Borrower shall not, and
shall not permit any Subsidiary to, directly or indirectly, pay, prepay,
purchase, redeem, retire, defease or acquire, or otherwise make any payment (on
account of principal, interest, premium or otherwise) of, any obligation under
or evidenced by any Equity Hybrid Security, except that the Borrower may
(i) make payments on and purchases of the Equity
Hybrid Securities as and when required to do so by the mandatory terms
of such Equity Hybrid Security, consistent with the definition of that
term in this Agreement; and
(ii) purchase or redeem Equity Hybrid Securities from
time to time, provided that the aggregate principal or face amount of
all such purchases and redemptions of any class or series of Equity
Hybrid Securities shall not exceed 5% of the aggregate principal or
face amount of Equity Hybrid Securities of such class or series
originally issued.
(b) SUBSEQUENTLY INCURRED INDEBTEDNESS. The Borrower shall
not, and shall not permit any Subsidiary to, directly or indirectly, pay,
prepay, purchase, redeem, retire, defease or acquire, or otherwise make any
payment (on account of principal, interest, premium or otherwise) of, any
Indebtedness for borrowed money incurred after the date of this Agreement (other
than the Obligations or Indebtedness incurred pursuant to commitments existing
prior to the date of this Agreement or, in the case of the Existing Credit
Agreement, incurred pursuant to any extensions (but not increases) of the
commitments thereunder), except that the Borrower and any Subsidiary may
directly or indirectly, pay, prepay, purchase, redeem, retire, defease or
acquire, or otherwise make any payment on such Indebtedness in each of the
following instances:
(i) as and when required to do so by the mandatory
terms thereof so long as such mandatory repayment of such
Indebtedness does not conflict with any mandatory repayment of
Loans required pursuant to Section 2.07;
(ii) in connection with any refinancing (including
subsequent refinancings) of such Indebtedness, or of
Indebtedness existing on the date of this Agreement, by
successor Indebtedness which does not increase the principal
amount (including for this purpose, any available committed
amounts) thereof and is permitted to be incurred under this
Agreement;
(iii) at a time when no Event of Default exists and
the Investment Grade Rating Condition is satisfied; and
(iv) owing by such Person to the Borrower or a
Subsidiary of the Borrower.
In addition, unless the Investment Grade Rating Condition is satisfied on the
date of incurrence thereof, no Indebtedness for borrowed money incurred after
the date of this Agreement (other than Indebtedness incurred pursuant to
commitments in effect on the date of this Agreement) shall be Disqualified
Indebtedness.
6.03 LIENS. The Borrower shall not, and shall not permit any
Subsidiary of the Borrower to, at any time create, incur, assume or permit to
exist any Lien on any of its property (now owned or hereafter acquired), or
agree, become or remain
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liable (contingently or otherwise) to do any of the foregoing, except for the
following (collectively, "Permitted Liens"):
(a) Liens in favor of the Lender Parties to secure the
Obligations;
(b) Liens arising from taxes, assessments, charges or claims
described in Sections 5.03(a) and 5.03(b), to the extent permitted to
remain unpaid under such Section 5.03;
(c) Deposits or pledges of cash or securities in the ordinary
course of business to secure (i) workmen's compensation, unemployment
insurance or other social security obligations, (ii) performance of
bids, tenders, trade contracts (other than for payment of money) or
leases, (iii) performance, indemnity, stay, surety or appeal bonds, or
(iv) other obligations of a like nature incurred in the ordinary course
of business;
(d) Judgment liens fully bonded or stayed pending appeal;
(e) Liens by the Borrower or a Subsidiary of the Borrower on
property securing all or part of the purchase price thereof and Liens
(whether or not assumed) existing on property at the time of purchase
thereof by the Borrower or a Subsidiary of the Borrower, provided,
that:
(i) such Lien is created before or substantially
simultaneously with the purchase of such property in the
ordinary course of business by the Borrower or such Subsidiary
(or is a Lien securing successor obligations incurred to
extend or refinance predecessor obligations allowed under this
Section 6.03(e), provided, that in each case the successor
obligation is an obligation of the same Person subject to the
predecessor obligation, is not greater than (and is not
otherwise on terms less advantageous than) the predecessor
obligation, and the Lien securing the successor obligation
does not extend to any property other than that subject to the
Lien securing the predecessor obligation);
(ii) such Lien is confined solely to the property
so purchased, improvements thereto and proceeds thereof;
(iii) the aggregate amount secured by all such
Liens on any particular property at the time purchased by the
Borrower or such Subsidiary, as the case may be, shall not
exceed the lesser of the purchase price of such property or
the Fair Market Value of such property at the time of purchase
thereof ("purchase price" for this purpose including the
amount secured by each such Lien thereon whether or not
assumed); and
(iv) the obligation secured by such Lien is
permitted to be incurred under this Agreement;
(f) Liens existing on the date of this Agreement securing
Indebtedness existing on the date of this Agreement and listed on
Schedule 6.03 (or any Lien securing successor Indebtedness incurred to
extend or refinance predecessor Indebtedness allowed under this Section
6.03(f), provided that in each case the successor Indebtedness is an
obligation of the same Person subject to the predecessor Indebtedness,
is not greater than (and is not otherwise on terms materially less
advantageous than) the predecessor Indebtedness, and the Lien securing
the successor Indebtedness does not extend to any property other than
that subject to the Lien securing the predecessor Indebtedness);
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(g) Rights reserved to the lessor under any capital lease
obligation permitted to be incurred under this Agreement;
(h) Provisions in agreements governing Indebtedness of Foreign
Subsidiaries (or of domestic Subsidiaries relating to borrowings by
foreign divisions thereof), and in guaranties of such Indebtedness by
the Borrower or other Subsidiaries permitted under this Agreement,
whereby the Borrower or a Subsidiary (i) has agreed, upon demand by the
lender of such Indebtedness, either to grant Liens on its property to
secure such Indebtedness or guaranty or to pay or cause to be paid such
Indebtedness, or (ii) has granted Liens on property in the possession
of the lender of such Indebtedness from time to time to secure such
Indebtedness or guaranty; provided, that this clause (h) shall not
permit the Borrower or any Subsidiary (x) actually to grant any Lien
pursuant to the foregoing clause (h)(i), or (y) actually to permit any
Lien to attach to any property described in the foregoing clause
(h)(ii), except, under the foregoing clause (h)(ii), freely
transferable deposits maintained with such lender and other cash
equivalent items deposited with such lender in the ordinary course of
the Borrower's or such Subsidiary's cash management operations and not
for the purpose of securing obligations owed to such lender; and
(i) Liens in favor of the United States Government which arise
in the ordinary course of business resulting from progress payments or
partial payments under United States Government contracts or
subcontracts thereunder;
(j) Liens securing repayment of obligations under the Existing
Credit Facility if, and only if, the Obligations under this Agreement
are equally and ratably secured by all such Liens pursuant to security
documentation in form reasonably satisfactory to the Administrative
Agent, which documentation provides, among other things, that such
Liens are granted for the ratable benefit of both the Lenders and the
Administrative Agent hereunder and the lenders and the agent under the
Existing Credit Facility, and that directions to the Collateral Agent
thereunder with respect to the exercise of remedies may be given by
lenders holding more than 50% of the aggregate outstanding principal
amount of obligations under this Agreement and the Existing Credit
Facility at the relevant time;
(k) Zoning restrictions, easements, minor restrictions on the
use of real property, minor irregularities in title thereto and other
minor Liens that do not secure the payment of money or the performance
of an obligation and that do not in the aggregate materially detract
from the value of a property or asset to, or materially impair its use
in the business of, the Borrower and its Subsidiaries taken as a whole;
(l) Liens (contingent or otherwise) customarily granted in
connection with an Asset Securitization Program; and
(m) Other Liens securing Indebtedness in an aggregate
principal amount at any time outstanding not in excess of $10,000,000.
6.04 MERGERS, ETC. The Borrower shall not, and shall not
permit any Subsidiary which is a Loan Party to, directly or indirectly, merge
with or into or consolidate with any other Person, or agree, become or remain
liable (contingently or otherwise) to do any of the foregoing, except for the
following: (a) the Borrower may merge with another Person so long as the
Borrower is the surviving corporation, and
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(b) a Subsidiary which is a Loan Party may merge with the Borrower so long as
the Borrower is the surviving corporation, or may merge with another Person so
long as such Subsidiary is the surviving corporation.
6.05 DISPOSITIONS OF PROPERTIES. The Borrower and its
consolidated Subsidiaries taken as a whole, shall not convey, sell, lease,
assign, transfer or otherwise dispose of, all or substantially all of their
property, business or assets. Any sale, conveyance, lease, transfer, abandonment
or other disposition of, voluntarily or involuntarily, directly or indirectly,
any property of the Borrower or any Subsidiary of the Borrower, now existing or
hereafter acquired, may be subject to Section 2.07(b)(ii).
6.06 DEALINGS WITH AFFILIATES. The Borrower shall not, and
shall not permit any Subsidiary of the Borrower to, enter into or carry out any
transaction with (including, without limitation, purchase or lease property or
services from, sell or lease property or services to, loan or advance to, or
enter into, permit to remain in existence or amend any contract, agreement or
arrangement with) any Affiliate of the Borrower, directly or indirectly, or
agree, become or remain liable (contingently or otherwise) to do any of the
foregoing, except transactions on an arm's length basis on terms no less
favorable in any material respect to the Borrower or such Subsidiary than could
have been obtained from a third party who was not an Affiliate, except
transactions wherein the Affiliate in question is the Borrower, Distribution,
Hertel or a wholly-owned Subsidiary of any of the foregoing.
6.07 OTHER RESTRICTIONS ON LIENS, DIVIDEND RESTRICTIONS ON
SUBSIDIARIES, ETC. The Borrower shall not, and shall not permit any Subsidiary
to,
(x) enter into, become or remain subject to any agreement or
instrument to which the Borrower or such Subsidiary is a party or by
which any of them or any of their respective properties (now owned or
hereafter acquired) may be subject or bound that would (i) prohibit,
restrict or limit its ability to grant or continue in existence any
Lien upon any of its properties (now owned or hereafter acquired), or
(ii) prohibit, restrict or limit its ability to transfer or dispose of
any of its properties (now owned or hereafter acquired), or require it
to apply the proceeds of any such transfer disposition in a specified
manner, or
(y) in the case of a Subsidiary of the Borrower, be or become
subject to any restriction of any nature (whether arising by agreement,
by its articles of incorporation, by-laws or other constitutional
documents, or otherwise) on its right (i) to declare and pay Stock
Payments or other distributions with respect to shares of capital stock
or other equity interests owned by the Borrower or any Subsidiary of
the Borrower, (ii) to pay any obligations from time to time owed to the
Borrower or any Subsidiary of the Borrower, or (iii) to make loans to
the Borrower or any Subsidiary of the Borrower,
except:
(a) restrictions under the Loan Documents,
(b) restrictions contained in agreements governing
Indebtedness as and to the extent in effect on the date of this
Agreement;
(c) restrictions contained in agreements governing
Indebtedness of a Foreign Subsidiary, provided, that such restriction
applies only to such Foreign Subsidiary and its Subsidiaries;
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(d) with respect to the foregoing clause (x), customary
non-assignment provisions in leases (by the Borrower or such Subsidiary
as lessee), licenses (by the Borrower or such Subsidiary as licensee)
and executory contracts;
(e) with respect to the foregoing clause (x), restrictions on
property subject to a Permitted Lien in favor of the holder of such
Permitted Lien;
(f) customary restrictions imposed on Subsidiaries pursuant to
an agreement for sale of all or substantially all of the equity
interest in or assets of a Subsidiary; provided, that such restriction,
by its terms, terminates on the earlier of the termination of such
agreement or the consummation of such agreement, and is agreed to in
good faith;
(g) with respect to the foregoing clause (x), restrictions
relating to accounts or notes receivable or interests therein or any
related collateral which are the subject of an Asset Securitization
Program, and with respect to the foregoing clause (y), restrictions
imposed on a Subsidiary of the Borrower serving as an Asset
Securitization SPE;
(h) with respect to the foregoing clause (x), restrictions
contained in the agreements governing any Indebtedness for borrowed
money (whether incurred pursuant to a credit agreement, bonds,
debentures, notes or otherwise) incurred after the date hereof, and not
giving rise to any Potential Default or Event of Default, requiring
that any Lien granted as security for the Obligations be granted on a
pari passu basis with the obligations incurred pursuant to such
Indebtedness; and
(i) restrictions of general applicability imposed by law.
6.08 OTHER RESTRICTIONS ON AMENDMENT OF THE LOAN DOCUMENTS,
ETC. The Borrower shall not, and shall not permit any Subsidiary of the Borrower
to, enter into, become or remain subject to any agreement or instrument to which
the Borrower or such Subsidiary is a party or by which any of them or any of
their respective properties (now owned or hereafter acquired) may be subject or
bound that would prohibit or require the consent of any Person to any amendment,
modification or supplement to any of the Loan Documents, except for the Loan
Documents.
6.09 FISCAL YEAR. The Borrower shall maintain a fiscal year
beginning on each July 1 and ending on the following June 30, divided into
fiscal quarters ending on the last day of each March, June, September and
December.
ARTICLE VII
DEFAULTS
7.01 EVENTS OF DEFAULT. An "Event of Default" shall mean the
occurrence or existence of one or more of the following events or conditions
(for any reason, whether voluntary, involuntary or effected or required by Law):
(a) The Borrower shall fail to pay when due principal of any
Loan and such failure shall have continued for two Business Days;
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(b) (i) The Borrower shall fail to pay when due interest on
any Loan or any Commitment Fees and such failure shall have continued
for a period of three Business Days or (ii) any Loan Party shall fail
to pay when due any other amount due under any Loan Document and such
failure shall have continued for a period of five Business Days;
(c) Any representation or warranty made or deemed made by any
Loan Party in or pursuant to any Loan Document or any transaction
contemplated hereby or thereby, or any statement made by any Loan Party
in any financial statement, certificate, report, exhibit or document
furnished by any Loan Party to any Lender Party pursuant to or in
connection with any Loan Document or any transaction contemplated
hereby or thereby, shall prove to have been false or misleading in any
material respect as of the time when made or deemed made (including by
omission of material information necessary to make such representation,
warranty or statement not misleading);
(d) The Borrower shall default in the performance or
observance of any covenant contained in Article VI or any of the
covenants contained in Sections 2.07, 5.01(f)(i), 5.09, 5.10 or 5.12;
(e) Any Loan Party shall default in the performance or
observance of any other covenant, agreement or duty under this
Agreement or any other Loan Document and (i) in the case of a default
under Section 5.01(a), 5.01(b) or 5.01(c), such default shall have
continued for a period of 10 days, and (ii) in the case of any other
default, such default shall have continued for a period of 30 days;
(f) (A) The Borrower or any of its Subsidiaries shall (i)
default in any payment with respect to any Indebtedness (other than the
Obligations) beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created or
(ii) default in the observance or performance of any agreement or
condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf
of such holder or holders) to cause, any such Indebtedness to become
due prior to its stated maturity (or in the case of a swap agreement or
any other hedging or derivatives obligation, to cause such transaction
to be subject to early termination) or (B) any Indebtedness (other than
the Obligations) of the Borrower or any of its Subsidiaries shall be
declared to be due and payable, or shall be required to be prepaid
other than by a regularly scheduled required prepayment or as a
mandatory prepayment (unless such required prepayment or mandatory
prepayment results from a default thereunder or an event of the type
that constitutes an Event of Default), prior to the stated maturity
thereof or (C) any event or condition shall occur which gives any
holder the right to put any Equity Hybrid Security to the issuing trust
or the Borrower (other than a put in accordance with clause (i) of the
definition of "Equity Hybrid Security"); provided that it shall not
constitute an Event of Default pursuant to clause (A), (B) or (C) of
this Section 7.01(f) unless the outstanding principal amount of any one
issue (or series of related issues) of such Indebtedness referred to in
clauses (A) and (B) above (or the early termination payment in the case
of a swap agreement or any other hedging or derivative obligation
referred to in clause (A) above, or the aggregate outstanding principal
or face amount of any Equity Hybrid Security (or set of related Equity
Hybrid Securities) referred to in clause (C) above) exceeds $10,000,000
(or the equivalent thereof in any currency);
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(g)(i) One or more judgments for the payment of money shall
have been entered against the Borrower or any Subsidiary of the
Borrower, which judgment or judgments exceed $25,000,000 in the
aggregate, and such judgment or judgments shall have remained
undischarged and unstayed for a period of 45 consecutive days, or (ii)
one or more writs or warrants of attachment, garnishment, execution,
distraint or similar process exceeding in value the aggregate amount of
$25,000,000 shall have been issued against the Borrower or any
Subsidiary or any of their respective properties and shall have
remained undischarged and unstayed for a period of 45 consecutive days;
(h) Any Governmental Action now or hereafter made by or with
any Governmental Authority in connection with any Loan Document is not
obtained or shall have ceased to be in full force and effect or shall
have been modified or amended or shall have been held to be illegal or
invalid, and such event or condition has or could reasonably be
expected to have a Material Adverse Effect;
(i) Any Lien created or purported to be created for the
benefit of the Lenders and securing the Obligations shall fail to be a
valid, enforceable and perfected Lien for the benefit of the Lenders
securing the Obligations, having the priority required by the Loan
Documents;
(j) Any Loan Document shall cease to be in full force and
effect (except in accordance with the express terms of such Loan
Document), or any Loan Party shall, or shall purport to, terminate
(except in accordance with the terms of such Loan Document), repudiate,
declare voidable or void or otherwise contest, any Loan Document or
term or provision thereof or any obligation or liability of such Loan
Party thereunder;
(k) Any one or more Pension-Related Events referred to in
subsection (b) or (e) of the definition of "Pension-Related Event"
shall have occurred; or any one or more other Pension-Related Events
shall have occurred which, individually or in the aggregate, could
reasonably be expected to have a Material Adverse Effect;
(l)(i) Any Person or group (as such term is used in Sections
13 and 14 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations thereunder) shall have
become the direct or indirect beneficial owner (as defined in Rules
13d-3 and 13d-5 under the Exchange Act) of 30% or more of any class of
voting securities of the Borrower, or (ii) a majority of the Board of
Directors of the Borrower shall be comprised of Persons each of whom
was not nominated and recommended for such position by, or elected to
such position by, a majority of the then-incumbent Board of Directors
of the Borrower;
(m) A proceeding shall have been instituted in respect of the
Borrower or any Subsidiary of the Borrower
(i) seeking to have an order for relief entered in
respect of such Person, or seeking a declaration or entailing
a finding that such Person is insolvent or a similar
declaration or finding, or seeking dissolution, winding-up,
administration, charter revocation or forfeiture, liquidation,
reorganization, arrangement, adjustment, composition or other
similar relief with respect to such Person, its assets or its
debts under any Law relating to bankruptcy, insolvency, relief
of debtors or protection of creditors, termination of legal
entities (other than as permitted by Section 5.04 with respect
to a Subsidiary) or any other similar Law now or hereafter in
effect, or
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(ii) seeking appointment of a receiver,
administrative receiver, trustee, liquidator, assignee,
sequestrator or other custodian for such Person or for all or
any substantial part of its property
and such proceeding shall result in the entry, making or grant of any
such order for relief, declaration, finding, relief or appointment, or
such proceeding shall remain undismissed and unstayed for a period of
60 consecutive days;
(n) The Borrower or any Significant Subsidiary of the Borrower
shall not be Solvent; shall fail to pay, become unable to pay, or state
that it is or will be unable to pay, its debts as they become due;
shall voluntarily suspend transaction of its business; shall make a
general assignment for the benefit of creditors; shall institute (or
fail to controvert in a timely and appropriate manner) a proceeding
described in Section 7.01(m)(i), or (whether or not any such proceeding
has been instituted) shall consent to or acquiesce in any such order
for relief, declaration, finding or relief described therein; shall
institute (or fail to controvert in a timely and appropriate manner) a
proceeding described in Section 7.01(m)(ii), or (whether or not any
such proceeding has been instituted) shall consent to or acquiesce in
any such appointment or to the taking of possession by any such
custodian of all or any substantial part of its or his property; shall
(except as permitted by Section 5.04 with respect to a Subsidiary)
dissolve, wind-up, go into administration or revoke or forfeit its
articles of incorporation (or other constitutional documents); or shall
take any action in furtherance of any of the foregoing; or
(o) the Subsidiary Guaranty or any provision thereof, shall
cease to be in full force or effect as to any Subsidiary Guarantor
(unless such guarantor is no longer a Subsidiary by virtue of a
liquidation, sale, merger or consolidation permitted by this Agreement)
or any Subsidiary Guarantor (or Person acting by or on behalf of such
guarantor) shall deny or disaffirm such guarantor's obligations under
the Subsidiary Guaranty, or any Subsidiary Guarantor shall default in
the due performance or observance of any term, covenant or agreement on
its part to be performed or observed pursuant to the Subsidiary
Guaranty beyond any grace period (if any) provided therefor.
7.02 CONSEQUENCES OF AN EVENT OF DEFAULT.
(a) GENERAL. If (x) an Event of Default specified in
subsections (a) through (l) of Section 7.01 shall have occurred and be
continuing or exist, or (y) an Event of Default specified in Section (m) or (n)
of Section 7.01 shall have occurred and be continuing or exist with respect to a
Subsidiary of the Borrower, then, in addition to all other rights and remedies
any Lender Party may have hereunder or under any other Loan Document, at law, in
equity or otherwise, the Lenders shall be under no further obligation to make
Loans and the Administrative Agent may, and upon the written request of the
Required Lenders shall, by notice to the Borrower, from time to time do any or
all of the following:
(i) Declare the Commitments terminated, whereupon the
Commitments will terminate and any fees hereunder shall be immediately
due and payable without presentment, demand, protest or further notice
of any kind, all of which are hereby waived, and an action therefor
shall immediately accrue; and
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(ii) Declare the unpaid principal amount of the Loans,
interest accrued thereon and all other Obligations to be immediately
due and payable without presentment, demand, protest or further notice
of any kind, all of which are hereby waived, and an action therefor
shall immediately accrue.
(b) BANKRUPTCY AND CERTAIN OTHER EVENTS. If an Event of
Default specified in subsection (m) or (n) of Section 7.01 shall have occurred
and be continuing or exist with respect to the Borrower, then, in addition to
all other rights and remedies which any Lender Party may have hereunder or under
any other Loan Document, at law, in equity or otherwise, the Commitments shall
automatically terminate and the Lenders shall be under no further obligation to
make Loans and the unpaid principal amount of the Loans, interest accrued
thereon and all other Obligations shall become immediately due and payable
without presentment, demand, protest or notice of any kind, all of which are
hereby waived, and an action therefor shall immediately accrue.
7.03 APPLICATION OF PROCEEDS. After the occurrence of an
Event of Default and acceleration of the Loans, all payments received on account
of Obligations shall be applied by the Administrative Agent to payment of the
Obligations in the following order:
First, to payment of that portion of the Obligations
constituting fees, indemnities and other amounts due to the
Administrative Agent in its capacity as such;
Second, to payment of that portion of the Obligations
constituting accrued and unpaid interest on Loans and accrued and
unpaid Commitment Fees, ratably amongst the Lenders in proportion to
the respective amounts described in this clause "Second" due to them;
Third, to payment of that portion of the Obligations
constituting unpaid principal of the Loans, ratably amongst the Lenders
in proportion to the respective amounts described in this clause
"Third" due to them;
Fourth, to payment of all other Obligations, ratably amongst
the Lender Parties in proportion to the respective amounts described in
this clause "Fourth" due to them; and
Finally, the balance, if any, after all of the Obligations
have been indefeasibly paid in full in cash and all Commitments have
terminated to the Borrower or as otherwise required by law.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
8.01 APPOINTMENT. Each Lender Party hereby irrevocably
appoints Deutsche Bank AG, New York Branch to act as Administrative Agent for
the Lender Parties under this Agreement and the other Loan Documents. Each
Lender Party hereby irrevocably authorizes the Administrative Agent to take such
action on behalf of the Lender Parties under the provisions of this Agreement
and the other Loan Documents, and to exercise such powers and to perform such
duties, as are expressly delegated to or required of the Administrative Agent by
the terms hereof or thereof, together with such powers as are reasonably
incidental thereto. Deutsche Bank AG, New York Branch hereby agrees to act as
Administrative Agent on behalf of the Lender Parties on the terms and conditions
set forth in this Agreement and the other Loan Documents, subject to
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its right to resign as provided herein. Each Lender Party hereby irrevocably
authorizes the Administrative Agent to execute and deliver each of the Loan
Documents and to accept delivery of such of the other Loan Documents as may not
require execution by the Administrative Agent. Each Lender Party hereby agrees
that the rights and remedies granted to the Administrative Agent under the Loan
Documents shall be exercised exclusively by the Administrative Agent, and that
no Lender Party shall have any right individually to exercise any such right or
remedy, except to the extent, if any, expressly provided herein or therein.
8.02 GENERAL NATURE OF ADMINISTRATIVE AGENT'S DUTIES.
(a) NO IMPLIED DUTIES. The Administrative Agent shall have no
duties or responsibilities except those expressly set forth in this Agreement
and the other Loan Documents, and no implied duties or responsibilities on the
part of the Administrative Agent shall be read into this Agreement or any Loan
Document or shall otherwise exist.
(b) NOT A FIDUCIARY. The duties and responsibilities of the
Administrative Agent under this Agreement and the other Loan Documents shall be
mechanical and administrative in nature, and the Administrative Agent shall not
have a fiduciary relationship in respect of any Lender Party.
(c) ADMINISTRATIVE AGENT OF LENDER PARTIES. The Administrative
Agent is and shall be solely the Administrative Agent of the Lender Parties. The
Administrative Agent does not assume, and shall not at any time be deemed to
have, any relationship of agency or trust with or for, or any other duty or
responsibility to, the Borrower or any Person other than the Lender Parties. The
provisions of this Article VIII are for the benefit of the Lender Parties (and
the other Persons named in Section 8.07), and the Borrower shall not have any
rights under any of the provisions of this Article VIII.
(d) NO OBLIGATION TO TAKE ACTION. The Administrative Agent
shall be under no obligation to take any action hereunder or under any other
Loan Document if the Administrative Agent believes in good faith that taking
such action may conflict with any Law or any provision of this Agreement or any
other Loan Document, or may require the Administrative Agent to qualify to do
business in any jurisdiction where it is not then so qualified.
8.03 EXERCISE OF POWERS. Subject to the other provisions of
this Agreement and the other Loan Documents, the Administrative Agent shall take
any action of the type specified in this Agreement or any other Loan Document as
being within the Administrative Agent's rights, powers or discretion in
accordance with directions from the Required Lenders (or, to the extent this
Agreement or such Loan Document expressly requires the direction or consent of
some other Person or set of Persons, then instead in accordance with the
directions of such other Person or set of Persons). In the absence of such
directions, the Administrative Agent shall have the authority (but under no
circumstances shall be obligated), in its sole discretion, to take any such
action, except to the extent this Agreement or such Loan Document expressly
requires the direction or consent of the Required Lenders (or some other Person
or set of Persons), in which case the Administrative Agent shall not take such
action absent such direction or consent. Any action or inaction pursuant to such
direction, discretion or consent shall be binding on all the Lender Parties. The
Administrative Agent shall not have any liability to any Person as a result of
(x) the Administrative Agent acting or refraining from acting in accordance with
the directions of the Required Lenders (or other applicable Person or set of
Persons), (y) the Administrative Agent refraining from acting in the absence of
instructions to act from the Required Lenders (or other applicable Person or set
of Persons), whether or not the Administrative Agent has discretionary power to
take such action, or (z) the Administrative Agent taking discretionary action it
is authorized to take under this Section (subject, in the case of this clause
(z), to the provisions of Section 8.04(a)).
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8.04 GENERAL EXCULPATORY PROVISIONS.
(a) GENERAL. The Administrative Agent shall not be liable for
any action taken or omitted to be taken by it under or in connection with this
Agreement or any other Loan Document, unless caused by its own gross negligence
or willful misconduct.
(b) ADMINISTRATIVE AGENT NOT RESPONSIBLE FOR LOAN DOCUMENTS,
ETC. The Administrative Agent shall not be responsible for (i) the execution,
delivery, effectiveness, enforceability, genuineness, validity or adequacy of
this Agreement or any other Loan Document, (ii) any recital, representation,
warranty, document, certificate, report or statement in, provided for in, or
received under or in connection with, this Agreement or any other Loan Document,
(iii) any failure of the Borrower or any Lender to perform any of their
respective obligations under this Agreement or any other Loan Document, (iv) the
existence, validity, enforceability, perfection, recordation, priority, adequacy
or value, now or hereafter, of any Lien or other direct or indirect security
afforded or purported to be afforded by any of the Loan Documents or otherwise
from time to time, or (v) caring for, protecting, insuring, or paying any taxes,
charges or assessments with respect to any collateral.
(c) NO DUTY OF INQUIRY. The Administrative Agent shall not be
under any obligation to ascertain, inquire or give any notice relating to (i)
the performance or observance of any of the terms or conditions of this
Agreement or any other Loan Document on the part of the Borrower, (ii) the
business, operations, condition (financial or other) or prospects of the
Borrower or any other Person, or (iii) except to the extent set forth in Section
8.05(f), the existence of any Event of Default or Potential Default.
(d) NOTICES. The Administrative Agent shall not be under any
obligation, either initially or on a continuing basis, to provide any Lender
Party with any notices, reports or information of any nature, whether in its
possession presently or hereafter, except for such notices, reports and other
information expressly required by this Agreement or any other Loan Document to
be furnished by the Administrative Agent to such Lender Party.
8.05 ADMINISTRATION BY THE ADMINISTRATIVE AGENT.
(a) RELIANCE ON NOTICES. The Administrative Agent may rely
upon any notice or other communication of any nature (written or oral, including
but not limited to telephone conversations, whether or not such notice or other
communication is made in a manner permitted or required by this Agreement or any
Loan Document) purportedly made by or on behalf of the proper party or parties,
and the Administrative Agent shall not have any duty to verify the identity or
authority of any Person giving such notice or other communication.
(b) CONSULTATION. The Administrative Agent may consult with
legal counsel (including, without limitation, in-house counsel for the
Administrative Agent or in-house or other counsel for the Borrower), independent
public accountants and any other experts selected by it from time to time, and
the Administrative Agent shall not be liable for any action taken or omitted to
be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts.
(c) RELIANCE ON CERTIFICATES, ETC. The Administrative Agent
may conclusively rely upon the truth of the statements and the correctness of
the
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opinions expressed in any certificates or opinions furnished to the
Administrative Agent in accordance with the requirements of this Agreement or
any other Loan Document. Whenever the Administrative Agent shall deem it
necessary or desirable that a matter be proved or established with respect to
the Borrower or any Lender Party, such matter may be established by a
certificate of the Borrower or such Lender Party, as the case may be, and the
Administrative Agent may conclusively rely upon such certificate (unless other
evidence with respect to such matter is specifically prescribed in this
Agreement or another Loan Document).
(d) INDEMNITY. The Administrative Agent may fail or refuse to
take any action unless it shall be indemnified to its satisfaction from time to
time against any and all amounts, liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature which may be imposed on, incurred by or asserted against the
Administrative Agent by reason of taking or continuing to take any such action.
(e) PERFORMANCE THROUGH ADMINISTRATIVE AGENTS. The
Administrative Agent may perform any of its duties under this Agreement or any
other Loan Document by or through agents or attorneys-in-fact. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in fact selected by it with reasonable care.
(f) NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have any knowledge or notice of the occurrence of any Event of Default
or Potential Default unless the Administrative Agent has received notice from a
Lender Party or the Borrower referring to this Agreement, describing such Event
of Default or Potential Default, and stating that such notice is a "notice of
default." If the Administrative Agent receives such a notice, the Administrative
Agent shall give prompt notice thereof to each Lender.
8.06 LENDERS NOT RELYING ON ADMINISTRATIVE AGENT OR OTHER
LENDERS. Each Lender Party hereby acknowledges as follows: (a) Neither the
Administrative Agent nor any other Lender Party has made any representations or
warranties to it, and no act taken hereafter by the Administrative Agent or any
other Lender Party shall be deemed to constitute any representation or warranty
by the Administrative Agent or such other Lender Party to it. (b) It has,
independently and without reliance upon the Administrative Agent or any other
Lender Party, and based upon such documents and information as it has deemed
appropriate, made its own credit and legal analysis and decision to enter into
this Agreement and the other Loan Documents. (c) It will, independently and
without reliance upon the Administrative Agent or any other Lender Party, and
based upon such documents and information as it shall deem appropriate at the
time, make its own decisions to take or not take action under or in connection
with this Agreement and the other Loan Documents.
8.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT BY LENDERS. Each
Lender hereby agrees to reimburse and indemnify the Administrative Agent and its
directors, officers, employees and agents (to the extent not reimbursed by the
Borrower and without limitation of the obligations of the Borrower to do so),
Pro Rata, from and against any and all amounts, losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature (including, without limitation, the fees and
disbursements of counsel for the Administrative Agent or such other Person in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not the Administrative Agent or such other
Person shall be designated a party thereto) that may at any time be imposed on,
incurred by or asserted against the Administrative Agent or such other Person as
a result of, or arising out of, or in any way related to or by reason of, this
Agreement, any other Loan Document, any transaction from time
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to time contemplated hereby or thereby, or any transaction financed in whole or
in part or directly or indirectly with the proceeds of any Loan; provided, that
no Lender shall be liable for any portion of such amounts, losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements resulting from the gross negligence or willful misconduct
of the Administrative Agent or such other Person.
8.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. With
respect to its Commitments and the Obligations owing to it, the Administrative
Agent shall have the same rights and powers under this Agreement and each other
Loan Document as any other Lender and may exercise the same as though it were
not the Administrative Agent, and the terms "Lender," "holders of Notes" and
like terms shall include the Administrative Agent in its individual capacity as
such. The Administrative Agent and its affiliates may, without liability to
account, make loans to, accept deposits from, acquire debt or equity interests
in, enter into derivatives transactions with, act as trustee under indentures
of, and engage in any other business or transaction with, the Borrower or any
stockholder, subsidiary or affiliate of the Borrower, as though the
Administrative Agent were not the Administrative Agent hereunder.
8.09 HOLDERS OF NOTES. The Administrative Agent may deem and
treat the Lender which is payee of a Note as the owner and holder of such Note
for all purposes hereof unless and until a Transfer Supplement with respect to
the assignment or transfer thereof shall have been filed with the Administrative
Agent in accordance with Section 9.14. Any authority, direction or consent of
any Person who at the time of giving such authority, direction or consent is
shown in the Register as being a Lender shall be conclusive and binding on each
present and subsequent holder, transferee or assignee of any Note or Notes
payable to such Lender or of any Note or Notes issued in exchange therefor.
8.10 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent
may resign at any time by giving 45 days' prior written notice thereof to the
Lenders and the Borrower. The Administrative Agent may be removed by the
Required Lenders at any time by giving 10 days' prior written notice thereof to
the Administrative Agent, the other Lenders and the Borrower. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Administrative Agent (subject to the Borrower's consent, which will
not be unreasonably withheld or delayed). If no successor Administrative Agent
shall have been so appointed and consented to, and shall have accepted such
appointment, within 30 days after such notice of resignation or removal, then
the retiring Administrative Agent may (but shall not be required to) appoint a
successor Administrative Agent. Each successor Administrative Agent shall be a
commercial bank or trust company organized under the laws of the United States
of America or any State thereof and having a combined capital and surplus of at
least $500,000,000. Upon the acceptance by a successor Administrative Agent of
its appointment as Administrative Agent hereunder, such successor Administrative
Agent shall thereupon succeed to and become vested with all the properties,
rights, powers, privileges and duties of the former Administrative Agent in its
capacity as such, without further act, deed or conveyance. Upon the effective
date of resignation or removal of a retiring Administrative Agent, such
Administrative Agent shall be discharged from its duties as such under this
Agreement and the other Loan Documents, but the provisions of this Agreement
shall inure to its benefit as to any actions taken or omitted by it while it was
Administrative Agent under this Agreement. If and so long as no successor
Administrative Agent shall have been appointed, then any notice or other
communication required or permitted to be given by the Administrative Agent
shall be sufficiently given if given by the Required Lenders, all notices or
other communications required or permitted to be given to the Administrative
Agent shall be given to each Lender, and all payments to be made to the
Administrative Agent shall be made directly to the Borrower or Lender Party for
whose account such payment is made.
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8.11 CALCULATIONS. The Administrative Agent shall not be
liable for any calculation, apportionment or distribution of payments made by it
in good faith. If such calculation, apportionment or distribution is
subsequently determined to have been made in error, the sole recourse of any
Lender Party to whom payment was due but not made shall be to recover from the
other Lender Parties any payment in excess of the amount to which they are
determined to be entitled or, if the amount due was not paid by the Borrower, to
recover such amount from the Borrower.
8.12 ADMINISTRATIVE AGENT'S FEE. The Borrower agrees to pay
to the Administrative Agent, for its individual account, such fees as have been
separately agreed to between the Administrative Agent and the Borrower.
8.13 FUNDING BY ADMINISTRATIVE AGENT. Unless the
Administrative Agent shall have been notified in writing by any Lender not later
than the close of business on the day before the day on which a Loan is
requested by the Borrower to be made that such Lender will not make such Loan,
the Administrative Agent may assume that such Lender will make such Loan, and in
reliance upon such assumption the Administrative Agent may (but in no
circumstances shall be required to) make available to the Borrower a
corresponding amount. If and to the extent that any Lender fails to make such
payment to the Administrative Agent on such date, such Lender shall pay such
amount on demand (or, if such Lender fails to pay such amount on demand, the
Borrower shall pay such amount on demand), together with interest, for the
Administrative Agent's own account, for each day from and including the date of
the Administrative Agent's payment to and including the date of repayment to the
Administrative Agent (before and after judgment) at the following rates per
annum: (x) for each day from and including the date of such payment by the
Administrative Agent to and including the second Business Day thereafter, at the
Federal Funds Effective Rate for such day, and (y) for each day thereafter, at
the rate applicable to such Loans for such day. If a Lender shall repay to the
Administrative Agent the amount made available by the Administrative Agent to
the Borrower, such amount so repaid shall thereafter constitute a Loan by such
Lender for purposes of this Agreement. All payments to the Administrative Agent
under this Section shall be made to the Administrative Agent at its Office in
Euros in funds immediately available at such Office, without set-off,
withholding, counterclaim or other deduction of any nature.
ARTICLE IX
MISCELLANEOUS
9.01 HOLIDAYS. Except as otherwise expressly provided herein
or therein, whenever any payment or action to be made or taken hereunder or
under any other Loan Document shall be stated to be due on a day which is not a
Business Day, such payment or action shall be made or taken on the next
following Business Day and such extension of time shall be included in computing
interest or fees, if any, in connection with such payment or action.
9.02 RECORDS. The unpaid principal amount of the Loans owing
to each Lender, the unpaid interest accrued thereon, the interest rate or rates
applicable to such unpaid principal amount, the duration of such applicability,
each Lender's Committed Amount and the accrued and unpaid fees owing to each
Lender Party shall at all times be ascertained from the records of the
Administrative Agent, which shall be conclusive absent manifest error.
9.03 AMENDMENTS AND WAIVERS. The Administrative Agent and the
Borrower may from time to time amend, modify or supplement the provisions of
this Agreement or any other Loan Document
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for the purpose of amending, adding to, or waiving any provisions or changing in
any manner the rights and duties of the Borrower or any Lender Party. Any such
amendment, modification or supplement made by the Borrower and the
Administrative Agent in accordance with the provisions of this Section 9.03
shall be binding upon the Borrower and each Lender Party. The Administrative
Agent shall enter into such amendments, modifications or supplements from time
to time as directed by the Required Lenders, and only as so directed, provided,
that no such amendment, modification or supplement may be made which will:
(a) Increase the Committed Amount of any Lender over the
amount thereof then in effect without the written consent of each
Lender affected thereby, or extend the Maturity Date without the
written consent of each Lender;
(b) Reduce the principal amount of or extend the time for any
scheduled payment of principal of any Loan without the written consent
of each Lender affected thereby, or reduce the rate of interest or
extend the time for payment of interest borne by any Loan (other than
as a result of waiving the applicability of any increase in interest
rates applicable to overdue amounts), or extend the time for payment of
or reduce the amount of any Commitment Fee, without the written consent
of each Lender affected thereby;
(c) Change the definition of "Required Lenders" or
"Supermajority Lenders", or amend this Section 9.03, without the
written consent of each Lender;
(d) Amend or waive any of the provisions of Article VIII, or
impose additional duties upon the Administrative Agent, or otherwise
affect the rights, interests or obligations of the Administrative
Agent, without the written consent of the Administrative Agent;
(e) Alter the priority of distributions set forth in
Section 7.03, without the written consent of each Lender affected
thereby; or
(f) Release or terminate the Subsidiary Guaranty, without the
written consent of the Supermajority Lenders;
and provided further, that Transfer Supplements may be entered into in the
manner provided in Section 9.14. Any such amendment, modification or supplement
must be in writing, manually signed by or on behalf of the Borrower and the
Lender Party which is party thereto, and shall be effective only to the extent
set forth in such writing. Any Event of Default or Potential Default waived or
consented to in any such amendment, modification or supplement shall be deemed
to be cured and not continuing to the extent and for the period set forth in
such waiver or consent, but no such waiver or consent shall extend to any other
or subsequent Event of Default or Potential Default or impair any right
consequent thereto.
9.04 NO IMPLIED WAIVER; CUMULATIVE REMEDIES. No course of
dealing and no delay or failure of any Lender Party in exercising any right,
power or privilege under this Agreement or any other Loan Document shall affect
any other or future exercise thereof or exercise of any other right, power or
privilege; nor shall any single or partial exercise of any such right, power or
privilege or any abandonment or discontinuance of steps to enforce such a right,
power or privilege preclude any further exercise thereof or of any other right,
power or privilege. The rights and remedies of the Lender Parties under this
Agreement and any other Loan Document are cumulative and not exclusive of any
rights or remedies which any of them would otherwise have hereunder or
thereunder, at law, in equity or otherwise.
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9.05 NOTICES.
(a) GENERAL. Except to the extent otherwise expressly
permitted hereunder or thereunder, all notices, requests, demands, directions
and other communications (collectively "notices") to the Borrower or any Lender
Party under this Agreement or any Loan Document shall be in writing (including
telexes and facsimile transmission) and shall be sent by first-class mail, or by
nationally-recognized overnight courier, or by telex or facsimile transmission
(with confirmation in writing mailed first-class or sent by such an overnight
courier), or by personal delivery. All notices shall be sent to the applicable
party (x) in the case of the Borrower or the Administrative Agent, at the
address stated on the signature pages hereof, (y) in the case of any Lender, at
its address set forth in its Administrative Questionnaire, or (z) in the case of
any party, at such address as it may specify for the purpose by notice to the
Administrative Agent and the Borrower. Any such properly given notice shall be
effective when received.
(b) COPIES TO ADMINISTRATIVE AGENT. Any Lender giving any
notice to the Borrower or any other party to a Loan Document shall
simultaneously send a copy thereof to the Administrative Agent.
(c) RELIANCE. Each Lender Party may rely on any notice
(whether or not such notice is made in a manner permitted or required by this
Agreement or any Loan Document) purportedly made by or on behalf of the
Borrower, and no Lender Party shall have any duty to verify the identity or
authority of any Person giving such notice.
9.06 EXPENSES; INDEMNITY.
(a) EXPENSES. The Borrower agrees to pay or cause to be paid
and to save each Lender Party harmless against liability for the payment of all
reasonable out-of-pocket costs and expenses (including but not limited to
reasonable fees and expenses of outside counsel, including local counsel,
auditors, and all other professional, accounting, evaluation and consulting
costs) from time to time arising from or relating to (i) in the case of the
Administrative Agent, the negotiation, preparation, execution, delivery and
syndication of this Agreement and the other Loan Documents, (ii) in the case of
the Administrative Agent, administration and performance of this Agreement and
the other Loan Documents, and any requested amendments, modifications,
supplements, waivers or consents (whether or not ultimately entered into or
granted) to this Agreement or any Loan Document, and (iii) in the case of each
Lender Party, the enforcement or preservation of rights under this Agreement or
any Loan Document (including but not limited to any such costs or expenses
arising from or relating to (A) the creation, perfection or protection of any
Lien on any collateral, (B) the protection, collection, lease, sale, taking
possession of, preservation of, or realization on, any collateral, including
without limitation advances for taxes, filing fees and the like, (C) collection
or enforcement by any Lender Party of any outstanding Loan or any other amount
owing hereunder or thereunder, and (D) any litigation, proceeding, dispute,
work-out, restructuring or rescheduling related in any way to this Agreement or
the Loan Documents, it being understood, however, that this clause (iii) shall
not entitle a Lender to reimbursement of expenses incurred by such Lender in
exercising rights under Section 5.01(g) unless an Event of Default or Potential
Default has occurred and is continuing).
(b) INDEMNITY. The Borrower hereby agrees to reimburse and
indemnify the Lender Parties, their respective affiliates, and the directors,
officers, employees, attorneys and agents of each of the foregoing (the "Lender
Indemnified Parties"), and each of them, and to hold each of them harmless from
and against, any and all losses, liabilities, claims, damages, expenses,
obligations, penalties, actions, judgments, suits, costs or disbursements of any
kind
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47
or nature whatsoever (including, without limitation, the reasonable fees
and disbursements of outside counsel for such Lender Indemnified Party in
connection with any investigative, administrative or judicial proceeding
commenced or threatened, whether or not such Lender Indemnified Party shall be
designated a party thereto) that may at any time be imposed on, asserted against
or incurred by such Lender Indemnified Party as a result of, or arising out of,
or in any way related to or by reason of this Agreement or any other Loan
Document, any transaction from time to time contemplated hereby or thereby, or
any transaction financed or secured in whole or in part, directly or indirectly,
with the proceeds of any Loan (and without in any way limiting the generality of
the foregoing, including any grant of any Lien on collateral or any exercise by
any Lender Party of any of its rights or remedies under this Agreement or any
other Loan Document); but excluding any portion of such losses, liabilities,
claims, damages, expenses, obligations, penalties, actions, judgments, suits,
costs or disbursements resulting from the gross negligence or willful misconduct
of such Lender Indemnified Party. If and to the extent that the foregoing
obligations of the Borrower under this Section 9.06(b), or any other
indemnification obligation of the Borrower hereunder or under any other Loan
Document, are unenforceable for any reason, the Borrower hereby agrees to make
the maximum contribution to the payment and satisfaction of such obligations
which is permissible under applicable Law.
9.07 SEVERABILITY. The provisions of this Agreement are
intended to be severable. If any provision of this Agreement shall be held
invalid or unenforceable in whole or in part in any jurisdiction such provision
shall, as to such jurisdiction, be ineffective to the extent of such invalidity
or unenforceability without in any manner affecting the validity or
enforceability thereof in any other jurisdiction or the remaining provisions
hereof in any jurisdiction.
9.08 PRIOR UNDERSTANDINGS. This Agreement and the other Loan
Documents supersede all prior and contemporaneous understandings and agreements,
whether written or oral, among the parties hereto and thereto relating to the
transactions provided for herein and therein, including the commitment letter
dated November 15, 2000; provided, however, that the Borrower's obligations to
pay any agreed upon fees in respect of this Agreement and the financing
represented hereby shall survive execution of this Agreement.
9.09 EFFECTIVENESS; DURATION; SURVIVAL.
(a) EFFECTIVENESS. This Agreement shall become effective on
the date that the Administrative Agent shall have received counterparts hereof
signed by each of the parties hereto (or, in the case of any party as to which
an executed counterparty shall not have been received, receipt by the
Administrative Agent of facsimile or other written confirmation from such party
of execution of a counterpart hereof by such party.
(b) DURATION; SURVIVAL. All covenants and agreements of the
Borrower contained in this Agreement shall continue in full force and effect
from and after the date this Agreement becomes effective until all Commitments
have terminated and all Obligations have been indefeasibly paid in full in cash.
Without limitation, all obligations of the Borrower hereunder or under any other
Loan Document to make payments to or indemnify any Lender Party or Lender
Indemnified Party (including but not limited to obligations arising under
Sections 2.10, 2.11 and 9.06) shall survive the payment in full of all other
Obligations, termination of the Borrower's right to borrow hereunder, and all
other events and conditions whatever. In addition, all obligations of each
Lender to make payments to or indemnify the Administrative Agent and Persons
related to the Administrative Agent (including but not limited to obligations
arising under Section 8.07) shall survive the payment in full by the Borrower of
all Obligations, termination of the Borrower's right to borrow hereunder, and
all other
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events and conditions whatever. All representations and warranties of the
Borrower contained herein or in any other Loan Document or made in connection
herewith or therewith shall survive the making of, and shall not be waived by
the execution and delivery, of this Agreement or any other Loan Document, any
investigation by or knowledge of any Lender Party, the making of any Loan or any
other event or condition whatever.
9.10 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument.
9.11 LIMITATION ON PAYMENTS. The parties hereto intend to
conform to all applicable Laws in effect from time to time limiting the maximum
rate of interest that may be charged or collected. Accordingly, notwithstanding
any other provision hereof or of any other Loan Document, the Borrower shall not
be required to make any payment to or for the account of any Lender, and each
Lender shall refund any payment made by the Borrower, to the extent that such
requirement or such failure to refund would violate or conflict with nonwaivable
provisions of applicable Laws limiting the maximum amount of interest which may
be charged or collected by such Lender.
9.12 SET-OFF. The Borrower hereby agrees that if any Loan
Obligation of the Borrower shall be due and payable (by acceleration or
otherwise), each Lender Party shall have the right, without notice to the
Borrower, to set-off against and to appropriate and apply to such Loan
Obligation any obligation of any nature owing to the Borrower by such Lender
Party, including but not limited to all deposits (whether time or demand,
general or special, provisionally credited or finally credited, whether or not
evidenced by a certificate of deposit) now or hereafter maintained by the
Borrower with such Lender Party. Such right shall be absolute and unconditional
in all circumstances and, without limitation, shall exist whether or not such
Lender Party or any other Person shall have given notice or made any demand to
the Borrower or any other Person, whether such obligation owed to the Borrower
is contingent, absolute, matured or unmatured (it being agreed that such Lender
Party may deem such obligation to be then due and payable at the time of such
setoff), and regardless of the existence or adequacy of any collateral, guaranty
or any other security, right or remedy available to any Lender Party or any
other Person. The Borrower hereby agrees that, to the fullest extent permitted
by law, any Participant and any branch, subsidiary or affiliate of any Lender
Party or any Participant shall have the same rights of set-off as a Lender as
provided in this Section 9.12 (regardless of whether such Participant, branch,
subsidiary or affiliate would otherwise be deemed in privity with or a direct
creditor of the Borrower). The rights provided by this Section 9.12 are in
addition to all other rights of set-off and banker's lien and all other rights
and remedies which any Lender Party (or any such Participant, branch, subsidiary
or affiliate) may otherwise have under this Agreement, any other Loan Document,
at law or in equity, or otherwise, and nothing in this Agreement or any Loan
Document shall be deemed a waiver or prohibition of or restriction on the rights
of set-off or bankers' lien of any such Person.
9.13 SHARING OF COLLECTIONS. The Lenders hereby agree among
themselves that if any Lender shall receive (by voluntary payment, realization
upon security, set-off or from any other source) any amount on account of the
Loans, interest thereon, or any other Loan Obligation contemplated by this
Agreement or the other Loan Documents to be made by the Borrower ratably to all
Lenders in greater proportion than any such amount received by any other Lender,
then the Lender receiving such proportionately greater payment shall notify each
other Lender and the Administrative Agent of such receipt, and equitable
adjustment will be made in the manner stated in this Section so that, in effect,
all such excess amounts will be shared ratably among all of the Lenders. The
Lender receiving such excess amount shall purchase (which it shall be deemed to
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49
have done simultaneously upon the receipt of such excess amount) for cash from
the other Lenders a participation in the applicable Obligations owed to such
other Lenders in such amount as shall result in a ratable sharing by all Lenders
of such excess amount (and to such extent the receiving Lender shall be a
Participant). If all or any portion of such excess amount is thereafter
recovered from the Lender making such purchase, such purchase shall be rescinded
and the purchase price restored to the extent of such recovery, together with
interest or other amounts, if any, required by Law to be paid by the Lender
making such purchase. The Borrower hereby consents to and confirms the foregoing
arrangements. Each Participant shall be bound by this Section as fully as if it
were a Lender hereunder.
9.14 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; ASSIGNMENTS.
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights hereunder without the prior written consent of all the Lenders and
the Administrative Agent, and any purported assignment or transfer without such
consent shall be void.
(b) PARTICIPATIONS. Any Lender may, in the ordinary course of
its business and in accordance with applicable Law, at any time sell
participations to one or more commercial banks or other Persons (each a
"Participant") in all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including, without limitation, all or a
portion of its Commitments and the Loans owing to it and any Note held by it);
provided, that
(i) any such Lender's obligations under this Agreement and the
other Loan Documents shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations,
(iii) the parties hereto shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and each of the other Loan Documents,
and
(iv) such Participant shall, by accepting such Participation,
be bound by the provisions of Section 9.13, and
(v) if such Participant is not already a Participant or a
Lender, and if such Participation gives such Participant any voting
rights (other than on matters described in clauses (a) through (f),
inclusive, of Section 9.03), such Participation shall be subject to
consent of the Administrative Agent and the Borrower pursuant to clause
(i) of Section 9.14(c) as if such Participation were an assignment
described therein.
The Borrower agrees that any such Participant shall be entitled to the benefits
of Sections 2.10, 2.11, 9.06 and 9.12 with respect to its participation in the
Commitments and the Loans outstanding from time to time; provided, that no such
Participant shall be entitled to receive any greater amount pursuant to such
Sections than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred to such Participant had
no such transfer occurred.
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(c) ASSIGNMENTS. Any Lender may, in the ordinary course of its
business and in accordance with applicable Law, at any time assign all or a
portion of its rights and obligations as Lender under this Agreement and the
other Loan Documents (including, without limitation, all or any portion of its
Commitments and Loans owing to it and any Note held by it) to any Lender or to
one or more additional commercial banks or other Persons (each a "Purchasing
Lender"); provided, that
(i) any such assignment to a Purchasing Lender which is not a
Lender or an affiliate of the assigning Lender shall be made only with
the consent of the Borrower and the Administrative Agent (in each case
not to be unreasonably withheld or delayed);
(ii) if a Lender makes such an assignment of less than all of
its then remaining rights and obligations under this Agreement and the
other Loan Documents, such transferor Lender shall retain, after such
assignment, a minimum principal amount of EUR 10,000,000 of the
Commitments or Loans then outstanding, and after giving effect to such
assignment the Purchasing Lender shall have a minimum aggregate
principal amount of EUR 10,000,000 of the Commitments or Loans then
outstanding;
(iii) each such assignment shall be of a constant, and not a
varying, percentage of all of the Commitments and Loans of the
transferor Lender, and of all of the transferor Lender's related rights
and obligations under this Agreement and the other Loan Documents; and
(iv) each such assignment shall be made pursuant to a Transfer
Supplement in substantially the form of Exhibit B to this Agreement,
duly completed (a "Transfer Supplement").
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Administrative Agent a duly completed
Transfer Supplement (including any consents required by the foregoing clause
(i)), together with any Note or Notes subject to such assignment, and a
processing and recording fee of $3,500; and, upon receipt thereof, the
Administrative Agent shall accept such Transfer Supplement. Upon receipt of the
Purchase Price Receipt Notice referred to in such Transfer Supplement, the
Administrative Agent shall record such acceptance in the Register. Upon such
execution, delivery, acceptance and recording, from and after the close of
business at the Administrative Agent's Office on the Transfer Effective Date
specified in such Transfer Supplement
(x) the Purchasing Lender shall be a party hereto and, to the
extent provided in such Transfer Supplement, shall have the rights and
obligations of a Lender hereunder, and
(y) the transferor Lender thereunder shall be released from
its obligations under this Agreement to the extent so transferred (and,
in the case of an Transfer Supplement covering all or the remaining
portion of a transferor Lender's rights and obligations under this
Agreement, such transferor Lender shall cease to be a party to this
Agreement) from and after the Transfer Effective Date.
On or prior to the Transfer Effective Date specified in a Transfer Supplement,
the Borrower, at its expense, shall execute and deliver to the Administrative
Agent (for delivery to the Purchasing Lender) new Notes evidencing such
Purchasing Lender's assigned Commitments and Loans and (for delivery to the
transferor Lender) replacement Notes evidencing the Commitments and Loans
retained by the transferor Lender (such Notes to be in exchange for, but not in
payment of, those Notes then held by such transferor Lender). Each such Note
shall be dated the date and be substantially in the form of the predecessor
Note. The Administrative Agent shall mark the predecessor Notes "exchanged" and
deliver them to the Borrower. Accrued interest and accrued fees shall be paid to
the Purchasing Lender at the same time or times provided in the predecessor
Notes and this Agreement.
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(d) REGISTER. The Administrative Agent shall maintain at its
office a copy of each Transfer Supplement delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive absent manifest
error and the Borrower and each Lender Party may treat each person whose name is
recorded in the Register as a Lender hereunder for all purposes of the
Agreement. The Register shall be available for inspection by the Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) FINANCIAL AND OTHER INFORMATION. Subject to Section 9.15,
the Borrower authorizes the Administrative Agent and each Lender to disclose to
any Participant or Purchasing Lender, or prospective Participant or Purchasing
Lender, any and all financial and other information delivered to, received by,
or otherwise in the possession of, such Person from time to time relating to the
Borrower, its Subsidiaries and affiliates, or the matters contemplated by the
Loan Documents. At the request of any Lender, the Borrower, at the Borrower's
expense, shall provide to each prospective transferee the conformed copies of
documents referred to in Section 4 of the form of Transfer Supplement.
(f) SYNDICATION. The Borrower shall, at the reasonable request
of the Administrative Agent from time to time, at the Borrower's expense, use
all reasonable efforts to cooperate with their respective syndication efforts,
including, without limitation, (i) providing information packages from time to
time for delivery to prospective Participants and Purchasing Lenders, at
Borrower's expense, and (ii) causing appropriate officers, representatives and
experts to meet with prospective Participants and Purchasing Lenders from time
to time as reasonably requested by the Administrative Agent.
(g) ASSIGNMENTS TO FEDERAL RESERVE BANK. Any Lender may at any
time assign all or any portion of its rights under this Agreement, including
without limitation any Loans owing to it and any Note held by it, to a Federal
Reserve Bank. No such assignment shall relieve the transferor Lender from any of
its obligations hereunder.
9.15 CONFIDENTIALITY. Each Lender Party agrees to take
reasonable precautions to maintain the confidentiality of information designated
in writing by the Borrower as confidential and provided to it by the Borrower in
connection with this Agreement; provided, that any Lender Party may disclose
such information (i) at the request of any bank regulatory authority or other
Governmental Authority or in connection with an examination of such Lender Party
by any such Governmental Authority, (ii) pursuant to subpoena or other court
process, (iii) to the extent such Lender Party is required (or believes in good
faith, following receipt of advice of counsel, that it is required) to do so in
accordance with any applicable Law, (iv) to such Lender Party's Affiliates,
independent auditors and other professional advisors, (v) in connection with the
enforcement of any of such Lender Party's rights under or in connection with any
Loan Document, (vi) to the extent that such information becomes publicly
available other than by breach of this Agreement, or becomes available to such
Lender Party on a non-confidential basis from a source other than the Borrower,
(vii) to any other Lender Party, and (viii) to any actual or potential
Participant or Purchasing Lender; so long as, in the case of clauses (iv), (vii)
and (viii), such Person has been notified that, by receiving any such
confidential information, it is subject to the foregoing confidentiality
requirements to the same extent as such Lender Party.
9.16 PAYMENT OF OBLIGATIONS IN EUROS. The obligation of the
Borrower to make payment in Euros of the principal of and interest on the Note
and any other amounts due hereunder shall not be discharged or satisfied by any
tender, or any
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52
recovery pursuant to any judgment, which is expressed in or converted into any
currency other than Euros, except to the extent such tender or recovery shall
result in the actual receipt by the Administrative Agent at its Office on behalf
of the Lenders or holders of the Notes of the full amount of Euros expressed to
be payable in respect of the principal of and interest on the Notes and all
other amounts due hereunder. The obligation of the Borrower to make payments in
Euros shall be enforceable as an alternative or additional cause of action for
the purpose of recovery in Euros of the amount, if any, by which such actual
receipt shall fall short of the full amount of Euros expressed to be payable in
respect of the principal of and interest on the Note and any other amounts due
hereunder, and shall not be affected by judgment being obtained for any other
sums due under this Agreement or the Notes.
9.17 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL; LIMITATION OF LIABILITY.
(a) GOVERNING LAW. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS
(EXCEPT TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN
DOCUMENTS) SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES.
(b) CERTAIN WAIVERS. THE BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(I) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING
IN CONNECTION HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED
LITIGATION") MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION SITTING IN THE CITY OF NEW YORK, SUBMITS TO THE
JURISDICTION OF SUCH COURTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW
AGREES THAT IT WILL NOT BRING ANY RELATED LITIGATION IN ANY OTHER FORUM
(BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY LENDER PARTY TO BRING
ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM);
(II) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE
LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT,
WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO
ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES
NOT HAVE JURISDICTION OVER THE BORROWER;
(III) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR
CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE BORROWER AT THE ADDRESS
FOR NOTICES DESCRIBED IN SECTION 9.05, AND CONSENTS AND AGREES THAT
SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT VALID AND EFFECTIVE
SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS
OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW); AND
(IV) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED
LITIGATION.
(c) LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED
BY LAW, NO CLAIM MAY BE MADE BY THE BORROWER AGAINST ANY LENDER PARTY OR ANY
AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF ANY OF THEM FOR ANY
SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF
ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT
OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN
CONNECTION HEREWITH OR THEREWITH (WHETHER FOR BREACH OF CONTRACT, TORT OR ANY
OTHER THEORY OF LIABILITY). THE BORROWER HEREBY WAIVES, RELEASES AND AGREES NOT
TO SUE UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER SUCH CLAIM PRESENTLY EXISTS
OR ARISES HEREAFTER AND WHETHER OR NOT SUCH CLAIM IS KNOWN OR SUSPECTED TO EXIST
IN ITS FAVOR.
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53
IN WITNESS WHEREOF, the parties hereto, by their officers
thereunto duly authorized, have executed and delivered this Agreement as of the
date first above written.
KENNAMETAL INC.
By /s/ James E. Morrison
---------------------------------------
Name: James E. Morrison
Title: Vice President and Treasurer
Address for Notices:
1600 Technology Way
P.O. Box 231
Latrobe, Pennsylvania 15650
Attention: Treasurer
Telephone: 412-539-5180
Facsimile: 412-539-4668
This is a signature page to the Credit Agreement, dated on or about
December 20, 2000, by and among Kennametal Inc., as Borrower, the Lenders party
thereto from time to time, and Deutsche Bank AG, New York Branch, as
Administrative Agent.
54
DEUTSCHE BANK AG, NEW YORK BRANCH,
as Administrative Agent
By /s/ Hans-Josef Thiele
---------------------------------------
Name: Hans-Josef Thiele
Title: Director
By /s/ Joel Makowsky
---------------------------------------
Name: Joel Makowsky
Title: Vice President
Address for Notices:
31 West 52nd Street
New York, New York 10019
Attn: Hans-Josef Thiele
Telephone: (212) 469-8649
Facsimile: (212) 469-2930
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH,
as a Lender
By /s/ Hans-Josef Thiele
---------------------------------------
Name: Hans-Josef Thiele
Title: Director
By /s/ Joel Makowsky
---------------------------------------
Name: Joel Makowsky
Title: Vice President
Address for Notices:
31 West 52nd Street
New York, New York 10019
Attn: Hans-Josef Thiele
Telephone: (212) 469-8649
Facsimile: (212) 469-2930
This is a signature page to the Credit Agreement, dated on or about
December 20, 2000, by and among Kennametal Inc., as Borrower, the Lenders party
thereto from time to time, and Deutsche Bank AG, New York Branch, as
Administrative Agent.
55
MELLON BANK, N.A.
By /s/ Robert J. Reichenbach
---------------------------------------
Name: Robert J. Reichenbach
Title: Assistant Vice President
This is a signature page to the Credit Agreement, dated on or about
December 20, 2000, by and among Kennametal Inc., as Borrower, the Lenders party
thereto from time to time, and Deutsche Bank AG, New York Branch, as
Administrative Agent.
56
PNC BANK, NATIONAL ASSOCIATION
By /s/ Lynn Konoz
---------------------------------------
Name: Lynn Konoz
Title: Vice President
This is a signature page to the Credit Agreement, dated on or about
December 20, 2000, by and among Kennametal Inc., as Borrower, the Lenders party
thereto from time to time, and Deutsche Bank AG, New York Branch, as
Administrative Agent.
57
BANK ONE, MICHIGAN
By /s/ Philip R. Medsger
---------------------------------------
Name: Philip R. Medsger
Title: Vice President
This is a signature page to the Credit Agreement, dated on or about
December 20, 2000, by and among Kennametal Inc., as Borrower, the Lenders party
thereto from time to time, and Deutsche Bank AG, New York Branch, as
Administrative Agent.
58
THE BANK OF NEW YORK
By /s/ Walter C. Parelli
---------------------------------------
Name: Walter C. Parelli
Title: Vice President
This is a signature page to the Credit Agreement, dated on or about
December 20, 2000, by and among Kennametal Inc., as Borrower, the Lenders party
thereto from time to time, and Deutsche Bank AG, New York Branch, as
Administrative Agent.
59
BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By /s/ M. R. Marron
---------------------------------------
Name: M. R. Marron
Title: Vice President and Manager
This is a signature page to the Credit Agreement, dated on or about
December 20, 2000, by and among Kennametal Inc., as Borrower, the Lenders party
thereto from time to time, and Deutsche Bank AG, New York Branch, as
Administrative Agent.
60
DAI-ICHI KANGYO BANK
By /s/ Robert Gallagher
---------------------------------------
Name: Robert Gallagher
Title: Vice President
This is a signature page to the Credit Agreement, dated on or about
December 20, 2000, by and among Kennametal Inc., as Borrower, the Lenders party
thereto from time to time, and Deutsche Bank AG, New York Branch, as
Administrative Agent.
61
BAYERISCHE HYPO- UND VEREINSBANK AG
By /s/ Alexander M. Blodi
---------------------------------------
Name: Alexander M. Blodi
Title: Director
By /s/ Steven Atwell
---------------------------------------
Name: Steven Atwell
Title: Director
This is a signature page to the Credit Agreement, dated on or about
December 20, 2000, by and among Kennametal Inc., as Borrower, the Lenders party
thereto from time to time, and Deutsche Bank AG, New York Branch, as
Administrative Agent.
62
KEYBANK NATIONAL ASSOCIATION
By /s/ Francis W. Lutz, Jr.
---------------------------------------
Name: Francis W. Lutz, Jr.
Title: Portfolio Officer
This is a signature page to the Credit Agreement, dated on or about
December 20, 2000, by and among Kennametal Inc., as Borrower, the Lenders party
thereto from time to time, and Deutsche Bank AG, New York Branch, as
Administrative Agent.
63
ANNEX A
TO
CREDIT AGREEMENT
DEFINITIONS; CONSTRUCTION
1.01 CERTAIN DEFINITIONS. In addition to other words and
terms defined elsewhere in this Agreement, as used in this Agreement the
following words and terms defined have the meanings given them below, unless the
context of this Agreement otherwise clearly requires.
"Administrative Questionnaire" means, with respect to each
Lender, a questionnaire in the form prepared by the Administrative
Agent and submitted by such Lender to the Administrative Agent (with a
copy for the Borrower), duly completed by such Lender.
"Affected Lender" shall have the meaning set forth in
Section 2.03(e).
"Affiliate" of a Person ("X") shall mean any Person which
directly or indirectly controls, or is controlled by, or is under
common control with, X. For purposes of the preceding sentence,
"control" of X means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of
X, whether through the ownership of voting securities, by contract or
otherwise.
"Applicable Margin" shall have the meaning set forth in
Section 2.03(b).
"Asset Securitization Program" means a program of Asset
Securitization Transfers each of which, at the time of such Asset
Securitization Transfer, is either (i) to the Borrower or a
consolidated Subsidiary of the Borrower or (ii) qualifies as a sale
under GAAP for purposes of the consolidated financial statements of the
Borrower.
"Asset Securitization SPE" means a limited-purpose Subsidiary
of the Borrower which serves as a special purpose entity to which the
Borrower or any Subsidiary of the Borrower from time to time makes
Asset Securitization Transfers in connection with an Asset
Securitization Program.
"Asset Securitization Transfer" means a sale, transfer or
other disposition of accounts or notes receivable, or of interests
therein, pursuant to an Asset Securitization Program.
"Assured Obligation" shall have the meaning given that term in
the definition of "Guaranty Equivalent."
"Business Day" shall mean any day other than a Saturday,
Sunday, public holiday under the laws of the State of New York or other
day on which banking institutions are authorized or obligated to close
in the city in which is located the Administrative Agent's Office and
which is also a day for trading by and between banks in the Brussels
interbank Euro market.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, and any successor statute
of similar import, and regulations thereunder, in each case as in
effect from time to time.
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"Closing Date" shall mean the date on which the Borrower, the
Administrative Agent and each of the Lenders shall have signed a copy
hereof (whether the same or different copies) and shall have delivered
the same to the Administrative Agent at its Office (or, in the case of
the Lenders, shall have given to the Administrative Agent telephonic
(confirmed in writing), written or facsimile transmission notice
(actually received) at such Office that the same has been signed and
mailed to it.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to
sections of the Code shall be construed also to refer to any successor
sections.
"Commitment" shall have the meaning set forth in
Section 2.01(a).
"Commitment Fee" shall have the meaning set forth in
Section 2.01(d).
"Commitment Fee Percentage" shall have the meaning set forth
in Section 2.01(d).
"Commitment Percentage" of a Lender at any time shall mean the
ratio of such Lender's Committed Amount to the aggregate Committed
Amounts of each of the Lenders.
"Commitment Schedule" means the schedule attached to this
Agreement identified as such.
"Committed Amount" shall have the meaning set forth in
Section 2.01(a).
"Compliance Certificate" shall mean a certificate in
substantially the form of Exhibit C hereto, duly completed and executed
by a Responsible Officer of the Borrower.
"Consolidated Adjusted Interest Expense" for any period shall
mean the sum of (a) interest expense of the Borrower and its
consolidated Subsidiaries for such period (exclusive of expense (cash
or noncash) on account of nonrecurring fees which the Borrower or its
consolidated Subsidiaries expense as interest expense), plus (b) to the
extent not accounted for as interest expense, accrued dividends,
contract adjustment payments and all similar charges with respect to
Equity Hybrid Securities of the Borrower and its Subsidiaries for such
period, all as determined on a consolidated basis in accordance with
GAAP.
"Consolidated Capital Expenditures" for any period shall mean
the expenditures for purchases of property, plant and equipment of the
Borrower and its consolidated Subsidiaries for such period, determined
on a consolidated basis in accordance with GAAP.
"Consolidated EBITDA" for any period shall mean (a) the sum
for such period of (i) Consolidated Net Income, (ii) interest expense
of the Borrower and its consolidated Subsidiaries (inclusive of expense
(cash or noncash) on account of nonrecurring fees which the Borrower or
its consolidated Subsidiaries expense as interest expense), (iii)
charges against income of the Borrower and its consolidated
Subsidiaries for foreign, federal, state and local income taxes, and
(iv) depreciation and amortization expense of the Borrower and its
consolidated Subsidiaries, minus (b) extraordinary gains (but not any
losses) to the extent included in determining such Consolidated Net
Income, all as determined on a consolidated basis in accordance with
GAAP, plus (c) noncash charges to the extent included in determining
such
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Consolidated Net Income in respect of which no future cash expenditure
is reasonably anticipated.
"Consolidated Fixed Charge Coverage Ratio" as of the last day
of any fiscal quarter shall mean (a) Consolidated EBITDA minus
Consolidated Capital Expenditures, divided by (b) Consolidated Adjusted
Interest Expense, in each case for the four fiscal quarters ending on
such day, considered as a single accounting period. If the any
acquisition of a business occurs during such period, each element of
the Consolidated Fixed Charge Coverage Ratio shall be calculated on a
pro forma basis as if such acquisition had been made, and any
Indebtedness or other obligations issued or incurred in connection
therewith had been issued or incurred, as of the first day of such
period. In making such pro forma calculation of the Consolidated
Adjusted Interest Expense with respect to Indebtedness or other
obligations issued or incurred in connection with such acquisition,
interest expense thereon shall be calculated on the basis of an
interest rate per annum not less than the one-month EURIBOR as of the
last day of such period plus an Applicable Margin determined on the
basis of the Borrower's Consolidated Leverage Ratio as of the last day
of such period. If the Borrower issues capital stock for cash during
such period and promptly applies the net proceeds thereof to reduction
of Indebtedness of the Borrower or its consolidated Subsidiaries,
Consolidated Adjusted Interest Expense for such period shall be
calculated on a pro forma basis as if such reduction of Indebtedness
had been made as of the first day of such period.
"Consolidated Leverage Ratio" as of the last day of any fiscal
quarter shall mean (a) aggregate Indebtedness of the Borrower and its
consolidated Subsidiaries as of such day, divided by (b) Consolidated
EBITDA for the four fiscal quarters ending on such day, considered as a
single accounting period. If any acquisition of a business occurs
during such period, Consolidated EBITDA shall be calculated on a pro
forma basis as if such acquisition had been made as of the first day of
such period. Consolidated Leverage Ratio on the Closing Date shall mean
(x) aggregate Indebtedness of the Borrower and its consolidated
Subsidiaries as of such day, after giving effect to the Indebtedness
incurred on such day, divided by (y) Consolidated EBITDA as of
September 30, 2000, calculated on a pro forma basis as if any
acquisitions of businesses since September 30, 2000 had been made as of
the first day of the period of four fiscal quarters ending on September
30, 2000, considered as a single accounting period.
"Consolidated Net Income" for any period shall mean the net
earnings (or loss) after taxes of the Borrower and its consolidated
Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP.
"Consolidated Net Worth" at any time shall mean the total
amount of shareholders' equity of the Borrower and its consolidated
Subsidiaries at such time, determined on a consolidated basis in
accordance with GAAP; provided, that each item of the following types
shall be deducted, to the extent such item is positive and is otherwise
included therein: (a) any write-ups or other revaluation after the
Closing Date in the book value of any asset owned by the Borrower or
any of its consolidated Subsidiaries (other than write-ups resulting
from the acquisition of assets of a business made within one year after
such acquisition and accounted for by purchase accounting, and
write-ups resulting from the valuation in the ordinary course of
business of investment securities and inventory at the lower of cost or
market), (b) all investments in and loans and advances to (i)
unconsolidated Subsidiaries of the Borrower, and (ii) Persons that are
not Subsidiaries of the Borrower (other than temporary cash equivalent
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investments), (c) treasury stock, and (d) Equity Hybrid Securities and
Disqualified Capital Stock of the Borrower or of any Subsidiary of the
Borrower.
"Controlled Group Member" shall mean each trade or business
(whether or not incorporated) which together with the Borrower or any
Subsidiary of the Borrower is treated as a controlled group or single
employer under Sections 4001(a)(14) or 4001(b)(1) of ERISA or Sections
414(b), (c), (m) or (o) of the Code.
"Corresponding Source of Funds" shall mean, in the case of any
Funding Segment, the proceeds of hypothetical receipts by a Lending
Office or by a Lender through a Lending Office of one or more Euro
deposits in the interbank Euro market at the beginning of the Funding
Period corresponding to such Funding Segment having maturities
approximately equal to such Funding Period and in an aggregate amount
approximately equal to such Lender's Pro Rata share of such Funding
Segment.
"Deemed Guarantor" shall have the meaning given that term in
the definition of the term "Guaranty Equivalent."
"Deemed Obligor" shall have the meaning given that term in the
definition of the term "Guaranty Equivalent."
"Disqualified Capital Stock" shall mean any shares of capital
stock or other equity interest that, other than solely at the option of
the issuer thereof, by their terms (or by the terms of any security
into which they are convertible or exchangeable) are, or upon the
happening of an event or the passage of time would be, required to be
redeemed or repurchased, in whole or in part, or have, or upon the
happening of an event or the passage of time would have, a redemption
or similar payment due on or prior to the Maturity Date.
"Disqualified Indebtedness" shall mean any Indebtedness that,
other than solely at the option of the issuer thereof, by its terms (or
by the terms of any security, instrument or obligation into which it is
convertible or exchangeable), (i) matures in whole or in part on or
prior to the Maturity Date, (ii) is required to be redeemed or
repurchased, in whole or in part, on or prior to the Maturity Date, or
(iii) has a redemption or similar payment, in whole or in part, due on
or prior to the Maturity Date; provided that, notwithstanding the
foregoing, Disqualified Indebtedness shall not in any event include the
following:
(a) intercompany Indebtedness among the Borrower and
any Subsidiary of the Borrower;
(b) Indebtedness assumed by the Borrower or any
Subsidiary in connection with an acquisition of assets or
capital stock of any Person, provided that (x) such
Indebtedness was not incurred in connection with or in
contemplation of such acquisition and (y) such Indebtedness
does not exceed 40% of the aggregate consideration paid by the
Borrower and/or its Subsidiaries in respect of such
acquisition;
(c) Indebtedness of the Borrower or any Subsidiary
pursuant to overdraft lines of credit incurred in the ordinary
course of business or arising from the honoring by a bank or
other financial institution of a check, draft or similar
instrument inadvertently drawn against insufficient funds in
the ordinary course of business;
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(d) Indebtedness of the Borrower or its Subsidiaries
incurred pursuant to any refinancing of Indebtedness or
commitments therefor (or any subsequent refinancing thereof)
existing prior to the date of this Agreement (and any
subsequent refinancing thereof), so long as such refinancing
does not (x) increase the aggregate principal amount or total
commitments of such Indebtedness being refinanced or (y)
shorten the maturity thereof as in effect immediately prior to
giving effect to any such refinancing; and
(e) other Indebtedness of the Borrower or its
Subsidiaries which would otherwise constitute Disqualified
Indebtedness, but which is permitted to be incurred pursuant
to the terms of the Existing Credit Facility at the time of
such incurrence, but assuming, for purposes of this clause
(e), that the final maturity of the Existing Credit Facility
is the later of the actual final maturity thereof and the
Maturity Date.
"Distribution" means JLK Direct Distribution Inc., a
Pennsylvania corporation.
"Dollar," "Dollars" and the symbol "$" shall mean freely
transferable lawful money of the United States of America.
"Dollar Equivalent" of an amount denominated in Euros or
another non-Dollar currency (the "applicable currency") shall mean, at
any time for the determination thereof, the amount of Dollars which
could be purchased with the amount of the applicable currency involved
in such computation at the prevailing market exchange rate therefor on
the date of any determination thereof for purchase on such date. The
"Dollar Equivalent" of an amount denominated in Dollars shall mean the
amount (calculated in accordance with the procedures set forth above in
this definition) of Euros or other applicable non-Dollar currency which
could be purchased with such amount of Dollars.
"Environmental Affiliate": A Person ("Y") shall be an
"Environmental Affiliate" of another Person ("X"), if X has retained or
assumed, or is otherwise liable (contingently or otherwise) for, any
liability (contingent or other) of Y with respect to any Environmental
Claim, whether such retention, assumption or liability on the part of X
arises by agreement, by Law or otherwise.
"Environmental Approvals" shall mean any Governmental Action
pursuant to or required under any Environmental Law.
"Environmental Claim" shall mean, with respect to any Person
("X"), any action, suit, proceeding, investigation, notice, claim,
complaint, demand, request for information or other communication
(written or oral) by any other Person (including but not limited to any
Governmental Authority, citizens' group or present or former employee
of X) alleging, asserting or claiming any actual or potential liability
on the part of X for investigatory costs, cleanup costs, governmental
response costs, natural resources damages, property damages, personal
injuries, fines or penalties, arising out of, based on or resulting
from (a) the presence, or release into the environment, of any
Environmental Concern Materials at any location, whether or not owned
by X, or (b) circumstances forming the basis of any violation or
alleged violation of any Environmental Law.
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"Environmental Concern Materials" shall mean (a) any flammable
substance, explosive, radioactive material, hazardous material,
hazardous waste, toxic substance, solid waste, pollutant, contaminant
or any related material, raw material, substance, product or by-product
of any substance, as the foregoing terms are defined in, or any other
substance regulated by, any Environmental Law (including but not
limited to any "hazardous substance" as defined in CERCLA or any
similar state Law), (b) any toxic chemical from or related to
industrial, commercial or institutional activities, and (c) asbestos,
gasoline, diesel fuel, motor oil, waste and used oil, heating oil and
other petroleum products or compounds, polychlorinated biphenyls, radon
and urea formaldehyde.
"Environmental Law" shall mean any Law, whether now existing
or subsequently enacted or amended, relating to (a) pollution or
protection of the environment, including natural resources, (b)
exposure of Persons, including but not limited to employees, to
Environmental Concern Materials, (c) protection of the public health or
welfare from the effects of products, by-products, wastes, emissions,
discharges or releases of Environmental Concern Materials or (d)
regulation of the manufacture, use or introduction into commerce of
Environmental Concern Materials including their manufacture,
formulation, packaging, labeling, distribution, transportation,
handling, storage or disposal. Without limiting the generality of the
foregoing, "Environmental Law" shall also include any Environmental
Approval and the terms and conditions thereof.
"Equity Hybrid Security" means (a) a beneficial interest
issued by a trust which constitutes a Subsidiary of the Borrower,
substantially all the assets of which trust are unsecured Indebtedness
of the Borrower or proceeds thereof, and all payments of which
Indebtedness are required to be, and are, distributed to the holders of
beneficial interests in such trust, or (b) a note, bond or debenture
issued by, and evidencing unsecured Indebtedness of, the Borrower, or
any combination of one or more of the Equity Hybrid Securities in
clauses (a) and (b); provided, however, that no Equity Hybrid Security
shall by its terms (or by the terms of any security into which it is
convertible or exchangeable) impose (either absolutely or upon the
happening of an event or the passage of time) any payment, prepayment,
redemption, repurchase, put or similar obligation on the Borrower or
any Subsidiary of the Borrower on or prior to the Maturity Date, except
as follows:
(i) The holders of an Equity Hybrid Security may be
given the right to put, convert, exchange or exercise such
Equity Hybrid Security on or before the Maturity Date,
provided that either (x) the consideration payable by the
Borrower or the issuing trust in connection with such put,
conversion, exchange or exercise is common stock of the
Borrower, or (y) the Borrower or the issuing trust shall have
received or shall concurrently receive aggregate net proceeds
(in cash or marketable securities, valued at their fair market
value) from Purchase Contracts issued concurrently with the
issuance of such Equity Hybrid Security at least equal to the
aggregate principal or face amount, as the case may be, of
such Equity Hybrid Security;
(ii) The holders of any Equity Hybrid Security may be
given the right to put such Equity Hybrid Security to the
issuing trust or the Borrower, or to accelerate the maturity
of such Equity Hybrid Security, upon (x) the occurrence of a
change of control or an event of default (as such terms may be
defined in the documentation relating to such Equity Hybrid
Security), so long as such change of control or event of
default also constitutes an Event of Default under
Section 7.01 (other than solely under
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Section 7.01(f), except in the case of an event of default
arising solely from breach of a purely ministerial requirement
imposed by the terms of the Equity Hybrid Security, including
but not limited to such matters as a requirement to maintain a
New York payment office for the Equity Hybrid Securities and
customary representations and warranties made at closing with
respect to the Equity Hybrid Security), or (y) a payment
default with respect to such Equity Hybrid Securities; and
(iii) obligations to make payments other than
payments that reduce the outstanding principal or face amount
of the Equity Hybrid Securities.
As used in this definition, "Purchase Contract" means a contract
between a holder of an Equity Hybrid Security (or a person who
purchased such Purchase Contract on the same date on which an Equity
Hybrid Security was issued, or the assignee or transferee of any such
person) and the Borrower whereby such holder (or such purchaser, or
such assignee or transferee, as the case may be) is obligated to
purchase, and the Borrower is obligated to sell, for an amount in cash
or marketable securities (valued at their fair market value) equal to
the principal or face amount of such Equity Hybrid Security, shares of
common stock of the Borrower.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended, and any successor statute of similar import, and
regulations thereunder, in each case as in effect from time to time.
References to sections of ERISA shall be construed also to refer to any
successor sections.
"EURIBOR" shall mean, in respect of Euros for a Funding
Period, the rate per annum determined by the Administrative Agent at
approximately 11:00 a.m. (Brussels time) on the date which is two
Business Days prior to the beginning of the relevant Funding Period (as
specified in the applicable Standard Notice) by reference to Telerate
Page 248 or Reuters Page EURIBOR-01 and/or any successor pages for
deposits in Euros for a period equal to such Funding Period; provided
that, to the extent that an interest rate is not ascertainable pursuant
to the foregoing provisions of this definition, the "EURIBOR" shall be
the interest rate per annum determined by the Administrative Agent to
be the rate per annum at which deposits in Euros are offered for such
relevant Funding Period to major banks in the Brussels interbank market
by the Administrative Agent at approximately 11:00 a.m. (Brussels time)
on the date which is two Business Days prior to the beginning of such
Funding Period. Notwithstanding anything to the contrary contained
above, in the event the Administrative Agent has made any determination
pursuant to Section 2.03(e)(i) in respect of EURIBOR, EURIBOR
determined pursuant to this definition shall instead be the rate
determined by the Administrative Agent as the all-in-cost of funds for
the Administrative Agent to fund a Funding Segment with maturities
comparable to the Funding Period applicable thereto.
"Euro", "Euros" and "[Euro symbol]" shall mean freely
transferable lawful money of the members from time to time of the
European Monetary Union.
"Event of Default" shall mean any of the Events of Default
described in Section 7.01.
"Existing Credit Facility" means the Credit Agreement, dated
as of November 17, 1997, by and among the Borrower, the lenders party
thereto from time to time, and Mellon Bank, N.A., as Administrative
Agent, as the same may be supplemented, amended, revised, restated,
replaced or refinanced from time to time.
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"Fair Market Value" shall mean, with respect to any asset, the
sale value that would be obtained in an arm's length transaction
between an informed and willing seller under no compulsion to sell and
an informed and willing buyer.
"Federal Funds Effective Rate" for any day shall mean the rate
per annum (rounded upward to the nearest 1/16 of 1%) determined by the
Administrative Agent (which determination shall be conclusive) to be
the rate per annum announced by the Federal Reserve Bank of New York
(or any successor) as being the weighted average of the rates on
overnight Federal funds transactions arranged by Federal funds brokers
on the previous trading day, as computed and announced by such Federal
Reserve Bank (or any successor) in substantially the same manner as
such Federal Reserve Bank computes and announces the weighted average
it refers to as the "Federal Funds Effective Rate" as of the date of
this Agreement; provided, that if such Federal Reserve Bank (or its
successor) does not so announce such rate for such previous trading
day, the "Federal Funds Effective Rate" shall be the average rate
charged to the Administrative Agent on such previous trading day on
such transactions as determined by the Administrative Agent.
"Foreign Subsidiary" means a Subsidiary of the Borrower that
is (a) not incorporated in the United States or a state or political
subdivision thereof and (b) (i) substantially all of whose assets and
properties are located, or substantially all of whose business is
carried on, outside of the United States, or (ii) substantially all of
whose assets consist of Subsidiaries which are Foreign Subsidiaries.
"Funding Period" shall have the meaning set forth in
Section 2.03(c).
"Funding Segment" at any time shall mean the entire principal
amount of Loans to which at the time in question there is applicable a
particular Funding Period beginning on a particular day and ending on a
particular day. (By definition, the outstanding principal amounts of
Loans at all times is composed of an integral number of discrete
Funding Segments, and the sum of the principal amounts of all Funding
Segments of Loans at any time equals the aggregate principal amount of
Loans at such time.)
"GAAP" shall have the meaning given that term in Section 1.03
of this Annex A.
"Governmental Action" shall have the meaning set forth in
Section 3.04.
"Governmental Authority" shall mean any government or
political subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of any government or
political subdivision, or any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic.
"Guaranty Equivalent": A Person (the "Deemed Guarantor") shall
be deemed to be subject to a Guaranty Equivalent in respect of any
obligation (the "Assured Obligation") of another Person (the "Deemed
Obligor") if the Deemed Guarantor directly or indirectly guarantees,
becomes surety for, endorses, assumes, agrees to indemnify the Deemed
Obligor against, or otherwise agrees, becomes or remains liable
(contingently or otherwise) for, such Assured Obligation, in whole or
in part. Without limitation, a Guaranty Equivalent shall be deemed to
exist if a Deemed Guarantor enters into, agrees, becomes or remains
liable (contingently or otherwise), directly or indirectly, to do any
of the following: (a) purchase or
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assume, or to supply funds for the payment, purchase or satisfaction
of, an Assured Obligation, (b) make any loan, advance, capital
contribution or other investment in, or to purchase or lease any
property or services from, a Deemed Obligor (i) to maintain the
solvency of the Deemed Obligor, (ii) to enable the Deemed Obligor to
meet any other financial condition, (iii) to enable the Deemed Obligor
to satisfy any Assured Obligation or to make any Stock Payment or any
other payment, or (iv) to assure the holder of such Assured Obligation
against loss, (c) purchase or lease property or services from the
Deemed Obligor regardless of the non-delivery of or failure to furnish
of such property or services, (d) a transaction having the
characteristics of a take-or-pay or throughput contract, (e) be or
become liable, contingently or otherwise, to reimburse a third party in
respect of a letter of credit, surety bond or other form of credit
support issued for the account of the Deemed Obligor, which letter of
credit, surety bond or other credit support is used or available for
use to supply funds for the satisfaction of an Assured Obligation, or
(f) any other transaction the effect of which is to assure the payment
or performance (or payment of damages or other remedy in the event of
nonpayment or nonperformance) in whole or in part of any Assured
Obligation.
"Hertel" means Kennametal Hertel AG, a German corporation.
"Indebtedness" of a Person shall mean the following (without
duplication): (a) all obligations on account of money borrowed by, or
for or on account of deposits with or advances to, such Person, (b) all
obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, (c) all obligations of such Person for the
deferred purchase price of property or services (except trade accounts
payable arising in the ordinary course of business), (d) all
obligations secured by a Lien on property owned by such Person (whether
or not assumed, and without regard to any limitation of the rights and
remedies of the holder of such Lien to repossession or sale of such
property), (e) all obligations of such Person under leases which are,
or which should in accordance with GAAP be accounted for as,
capitalized leases (without regard to any limitation of the rights and
remedies of the lessor under such capitalized lease to repossession or
sale of such property), (f) the unreimbursed amount of all drawings
under any letter of credit issued for the account of such Person, (g)
all obligations of such Person in respect of acceptances or similar
obligations issued for the account of such Person, (h) the maximum
repurchase price of any Disqualified Capital Stock of such Person, (i)
all Indebtedness of others as to which such Person is the Deemed
Guarantor under a Guaranty Equivalent, and (j) Equity Hybrid
Securities.
"Initial Committed Amount" shall have the meaning set forth in
Section 2.01(a).
"Investment Grade Rating Condition" shall be deemed satisfied
on a particular day if, and only if, on such day, the Borrower's senior
unsecured long-term debt is (x) rated "BBB-" or higher by Standard &
Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc.
(or a comparable rating from a generally recognized successor to such
rating agency) and (y) rated "Baa3" or higher by Moody's Investors
Service, Inc. (or a comparable rating from a generally-recognized
successor to such rating agency); provided that solely in respect of
determinations made pursuant to Section 6.02(b), the Investment Grade
Rating Condition shall be satisfied if either or both of the conditions
described in clauses (x) and (y) above are satisfied on the respective
date of determination.
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"Law" shall mean any law (including common law), constitution,
statute, treaty, convention, regulation, rule, ordinance, order,
injunction, writ, decree or award of any Governmental Authority.
"Lender" shall mean any of the Lenders listed on the signature
pages hereof, subject to the provisions of Section 9.14 pertaining to
Persons becoming or ceasing to be Lenders.
"Lender Indemnified Parties" shall have the meaning given that
term in Section 9.06(b).
"Lender Parties" shall mean the Lenders and the Administrative
Agent.
"Lending Office" means, as to each Lender, its office, branch
or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Lending Office) or such other office, branch or affiliate of such
Lender as it may hereafter designate as its Lending Office by written
notice to the Borrower and the Administrative Agent.
"Lien" shall mean any mortgage, deed of trust, pledge, lien,
security interest, charge or other encumbrance or security arrangement
of any nature whatsoever, including but not limited to any conditional
sale or title retention arrangement, and any assignment, deposit
arrangement or lease intended as, or having the effect of, security.
"Loan Documents" shall mean this Agreement, the Notes, the
Transfer Supplements and the Subsidiary Guaranty.
"Loan Parties" means the Borrower and the Subsidiary
Guarantors.
"Loans" shall have the meaning set forth in Section 2.01(a).
"Margin Regulations" shall mean Regulations G, T, U and X of
the Board of Governors of the Federal Reserve System, and any successor
regulations of similar import, in each case as amended from time to
time.
"Margin Stock" shall have the meaning given that term in any
of the Margin Regulations.
"Material Adverse Effect" shall mean: (a) a material adverse
effect on the business, operations, condition (financial or other) or
prospects of the Borrower and its Subsidiaries taken as a whole, (b) a
material adverse effect on the ability of any Loan Party to perform or
comply with any of the terms and conditions of any Loan Document or (c)
an adverse effect on the legality, validity, binding effect,
enforceability or admissibility into evidence of any Loan Document, or
the ability of any Lender Party to enforce any rights or remedies under
or in connection with any Loan Document.
"Maturity Date" shall mean December 20, 2003.
"Multiemployer Plan" shall mean any employee benefit plan
which is a "multiemployer plan" within the meaning of
Section 4001(a)(3) of ERISA and to which the Borrower, any Subsidiary
of the Borrower or any other Controlled Group Member has or had an
obligation to contribute.
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"Net Proceeds" means, with respect to any Reduction Event, an
amount equal to the gross cash proceeds, plus the Fair Market Value (as
determined in good faith by the Board of Directors of the Borrower) of
any noncash proceeds, received by the Borrower and its Subsidiaries in
respect of such Reduction Event, less (a) any fees, costs and expenses
reasonably incurred by such Person in respect of such Reduction Event
and (b) if such Reduction Event is a Reduction Event Asset Sale (other
than an Asset Securitization Transfer), (i) payments made to retire
obligations (other than to the Borrower and its Subsidiaries) that are
secured by the properties that are the subject of such Reduction Event
Asset Sale, (ii) any taxes actually paid or estimated in good faith by
a senior financial officer of the Borrower (giving effect to the
overall tax position of the Borrower) by such Person in respect of such
Reduction Event Asset Sale, (iii) all payments with respect to
liabilities associated with the property which is the subject of such
Reduction Event Asset Sale, including without limitation trade payable
and other accrued liabilities, (iv) appropriate amounts to be provided
by such by such Person as a reserve in accordance with generally
accepted accounting principles against liabilities associated with such
property and retained by such Person after such Reduction Event Asset
Sale, including without limitation, liabilities under any
indemnification obligations and severance and other employee
termination costs associated with such Reduction Event Asset Sale,
until such time as such amounts are no longer reserved or such reserve
is no longer necessary (at which time any remaining amounts will become
Net Proceeds), and (v) all distributions and other payments required to
be made (or made on a pro rata basis) to minority interest holders in
Subsidiaries of such Person as a result of such Reduction Event Asset
Sale. Notwithstanding the foregoing, the Borrower and its Subsidiaries
may elect to receive notes or other deferred payment obligations
(collectively, "notes") in connection with Reduction Event Asset Sales,
and with respect to such notes recognition of Net Proceeds shall be
deferred to include only cash proceeds as and when received in respect
of such notes (whether as principal, interest or otherwise), but no
more than $15,000,000 aggregate principal amount of all such notes at
any time outstanding shall be eligible for deferral under this
sentence.
"Notes" shall mean the promissory notes of the Borrower
executed and delivered under Section 2.01(f) and any promissory note
issued in substitution therefor pursuant to this Agreement.
"Obligations" shall mean all amounts owing to the
Administrative Agent or any Lender pursuant to the terms of this
Agreement or any other Loan Document.
"Office" when used in connection with the Administrative
Agent, shall mean its office located at 31 West 52nd Street, New York,
New York 10019, Attention: Hans-Josef Thiele, or at such other office
or offices of the Administrative Agent or any branch, subsidiary or
affiliate thereof as may be designated in writing from time to time by
the Administrative Agent to the Borrower.
"Other Taxes" shall have the meaning set forth in
Section 2.11(b).
"Participants" shall have the meaning set forth in
Section 9.14(b).
"PBGC" means the Pension Benefit Guaranty Corporation
established under Title IV of ERISA or any other governmental agency,
department or instrumentality succeeding to the functions of said
corporation.
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"Pension-Related Event" shall mean any of the following events
or conditions:
(a) Any action is taken by any Person (i) to
terminate, or which would result in the termination of, a Plan
pursuant to the distress termination provisions of Section
4041(c) of ERISA or (ii) to have a trustee appointed for a
Plan pursuant to Section 4042 of ERISA;
(b) PBGC notifies any Person of its determination
that an event described in Section 4042 of ERISA has occurred
with respect to a Plan, that a Plan should be terminated, or
that a trustee should be appointed for a Plan;
(c) Any Reportable Event occurs with respect to a
Plan;
(d) Any action (other than becoming obligated to
contribute to a Multiemployer Plan) occurs or is taken which
could result in the Borrower, any Subsidiary of the Borrower
or any Controlled Group Member becoming subject to liability
for a complete or partial withdrawal by any Person from a
Multiemployer Plan (including, without limitation, seller
liability incurred under Section 4204(a)(2) of ERISA), or the
Borrower, any Subsidiary of the Borrower or any Controlled
Group Member receives from any Multiemployer Plan a notice or
demand for payment on account of any such alleged or asserted
liability;
(e) (i) There occurs any failure to meet the minimum
funding standard under Section 302 of ERISA or Section 412 of
the Code with respect to a Plan, or any tax return is filed
showing any tax payable under Section 4971(a) of the Code with
respect to any such failure, or the Borrower, any Subsidiary
of the Borrower or any Controlled Group Member receives a
notice of deficiency from the Internal Revenue Service with
respect to any alleged or asserted such failure, (ii) any
request is made by any Person for a variance from the minimum
funding standard, or an extension of the period for amortizing
unfunded liabilities, with respect to a Plan, or (iii) the
Borrower, any Subsidiary of the Borrower or any Controlled
Group Member fails to pay the PBGC premium with respect to a
Plan when due and it remains unpaid for more than 30 days
thereafter; or
(f) There occurs any "prohibited transaction" within
the meaning of Section 406 of ERISA or Section 4975 of the
Code involving a Plan.
"Permitted Liens" shall have the meaning given that term in
Section 6.03.
"Person" shall mean an individual, corporation, partnership,
trust, limited liability company, unincorporated association, joint
venture, joint-stock company, Governmental Authority or any other
entity.
"Plan" shall mean (a) any employee pension benefit plan within
the meaning of Section 3(2) of ERISA (other than a Multiemployer Plan)
covered by Title IV of ERISA by reason of Section 4021 of ERISA, of
which the Borrower, any Subsidiary of the Borrower or any Controlled
Group Member is or has been within the preceding five years a
"contributing sponsor" within the meaning of Section 4001(a)(13) of
ERISA, or which is or has been within
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the preceding five years maintained for employees of the Borrower, any
Subsidiary of the Borrower or any Controlled Group Member and (b) any
employee pension benefit plan within the meaning of Section 3(2) of
ERISA (other than a Multiemployer Plan) which is subject to the minimum
funding requirements of Section 302 of ERISA or Section 412 of the
Code, of which the Borrower, any Subsidiary of the Borrower or any
Controlled Group Member is or has been within the preceding five years
an employer liable for contributions within the meaning of Section
302(c)(11) of ERISA or Section 412(c)(11) of the Code, or which is or
has been within the preceding five years maintained for employees of
the Borrower, any Subsidiary of the Borrower or any Controlled Group
Member.
"Potential Default" shall mean any event or condition which
with notice, passage of time or a determination by the Administrative
Agent or the Lenders, or any combination of the foregoing, would
constitute an Event of Default.
"Pricing Grid" means the table identified as such in Annex B.
"Pro Rata" shall mean from or to each Lender in proportion to
such Lender's Commitment Percentage.
"Purchase Contract" has the meaning given that term in the
definition of "Equity Hybrid Security."
"Purchasing Lender" shall have the meaning set forth in
Section 9.14(c).
"Recapture Indebtedness" shall mean Indebtedness for borrowed money of
the Borrower and/or its Subsidiaries incurred after the date of this
Agreement other than:
(i) Indebtedness of the Borrower and its Subsidiaries
to the Lender Parties pursuant to this Agreement and the other
Loan Documents;
(ii) Indebtedness of the Borrower pursuant to the
Existing Credit Facility; provided, that the aggregate
principal amount of Indebtedness outstanding under such
Existing Credit Facility not constituting Recapture
Indebtedness, when added to the aggregate face amount of
outstanding and undrawn Letters of Credit (as defined in the
Existing Credit Facility), shall not exceed $900,000,000 at
any time outstanding;
(iii) other Indebtedness of the Borrower or its
Subsidiaries not exceeding $350,000,000 (or the equivalent in
any currency) less the Dollar Equivalent of Indebtedness
hereunder from time to time in aggregate principal amount at
any time outstanding;
(iv) Indebtedness owing to the Borrower or to a
consolidated Subsidiary of the Borrower; and
(v) Indebtedness of the Borrower under Equity Hybrid
Securities, not to exceed $300,000,000 in aggregate principal
or face amount at any time outstanding.
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"Reduction Event," "Reduction Event Application Amount,"
"Reduction Event Date" and "Reduction Event Asset Sale" shall have the
meanings given those terms in Section 2.07(b).
"Register" shall have the meaning set forth in
Section 9.14(d).
"Regular Payment Date" shall mean the last Business Day of
each March, June, September and December of each year.
"Repayment Threshold Amount" shall initially mean $0; provided
that, on each date upon which a mandatory repayment and/or commitment
reduction under the Existing Credit Facility is required pursuant to
Section 4.01(l) or 4.02(g) of this Agreement as a result of the
incurrence of Loans in excess of the Repayment Threshold Amount, the
Repayment Threshold Amount shall be increased (on the date of, and
after giving effect to, the respective mandatory repayment) by the
amount of the mandatory repayment and commitment reduction required
(assuming an unlimited amount of outstanding loans under the Existing
Credit Facility) on such date pursuant to Section 4.01(l) or 4.02(g) as
a result of the respective incurrence of Loans.
"Reportable Event" means (i) a reportable event described in
Section 4043 of ERISA and regulations thereunder, (ii) a withdrawal by
a substantial employer from a Plan to which more than one employer
contributes, as referred to in Section 4063(b) of ERISA, (iii) a
cessation of operations at a facility causing more than 20% of Plan
participants to be separated from employment, as referred to in Section
4062(e) of ERISA, or (iv) a failure to make a required installment or
other payment with respect to a Plan when due in accordance with
Section 412 of the Code or Section 302 of ERISA which causes the total
unpaid balance of missed installments and payments (including unpaid
interest) to exceed $750,000.
"Required Lenders" shall mean Lenders holding in the aggregate
a majority of the aggregate Committed Amounts or, if the Commitments
have terminated, Lenders holding in the aggregate a majority of the
outstanding principal amount of Loans.
"Responsible Officer" of a Person shall mean its President,
Chief Financial Officer, Treasurer or any Vice President
"Significant Subsidiary" shall mean any Subsidiary of the
Borrower (a) which, together with its Subsidiaries (determined on a
consolidated basis), has assets with a book value greater than or equal
to $75,000,000 (or, if less, commencing with the first fiscal quarter
ending after the Closing Date, 5% of the total assets of the Borrower
and its Subsidiaries (determined on a consolidated basis) as of the end
of the most recently completed fiscal quarter for which financial
information is available), or (b) which, together with its Subsidiaries
(determined on a consolidated basis), has net outside sales greater
than or equal to $75,000,000 (or, if less, commencing with the first
fiscal quarter after the Closing Date, 5% of the net outside sales of
the Borrower and its Subsidiaries (determined on a consolidated basis)
for the most recent four fiscal quarters for which financial
information is available), all determined in accordance with GAAP. As
used in the foregoing definition, "net outside sales" means gross sales
to Persons other than the Borrower and its consolidated Subsidiaries,
net of cash discounts, customer returns and allowances.
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"Solvent" means:
(a) with respect to any Person organized under the
Laws of the United States or any state or political
subdivision thereof, that at such time (i) the sum of the
debts and liabilities (including, without limitation,
contingent liabilities) of such Person is not greater than all
of the assets of such Person at a fair valuation, (ii) the
present fair salable value of the assets 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, (iii) such Person has not incurred, will not
incur, does not intend to incur, and does not believe that it
will incur, debts or liabilities (including, without
limitation, contingent liabilities) beyond such person's
ability to pay as such debts and liabilities mature, (iv) such
Person is not engaged in, and is not about to engage in, a
business or a transaction for which such person's property
constitutes or would constitute unreasonably small capital (as
such term is used in any Law referred to in the following
clause (v)), and (v) such Person is not otherwise insolvent as
defined in, or otherwise in a condition which could in any
circumstances then or subsequently render any transfer,
conveyance, obligation or act then made, incurred or performed
by it avoidable or fraudulent pursuant to, any Law that may be
applicable to such Person pertaining to bankruptcy, insolvency
or creditors' rights (including but not limited to the
Bankruptcy Code of 1978, as amended, and, to the extent
applicable to such Person, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act, or any other
applicable Law pertaining to fraudulent conveyances or
fraudulent transfers or preferences);
(b) With respect to any other Person, that at such
time such Person is not insolvent or unable to pay its debts
as they come due as contemplated by any applicable insolvency,
bankruptcy, reorganization, fraudulent conveyance or similar
Law.
"Standard Notice" shall mean an irrevocable notice provided to
the Administrative Agent on a Business Day which is at least three
Business Days in advance of the first day of any selected Funding
Period or any prepayment of any Loan, as the case may be. Standard
Notice must be provided no later than 10:00 a.m., New York time, on the
last day permitted for such notice.
"Status" or "Status Level" shall have the meanings given in
Annex B.
"Stock Payment" by any Person shall mean any dividend,
distribution or payment of any nature (whether in cash, securities, or
other property) on account of or in respect of any shares of the
capital stock or other equity interests (or warrants, options or rights
therefor) of such Person, including but not limited to any payment on
account of the purchase, redemption, retirement, defeasance or
acquisition of any shares of the capital stock or other equity
interests (or warrants, options or rights therefor) of such Person, in
each case regardless of whether required by the terms of such capital
stock or other equity interest (or warrants, options or rights) or any
other agreement or instrument.
"Subsidiary" of a Person at any time shall mean (i) any
corporation of which a majority (by number of shares or number of
votes) of the outstanding shares of capital stock of any class
ordinarily entitled to vote for the election of one or more directors
(regardless of any contingency which does or may suspend or dilute the
voting rights of such class) is at such time owned directly or
indirectly, beneficially or of record, by such Person or one or more
Subsidiaries of such Person, and (ii) any partnership, limited
liability company, trust or other Person of which a
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majority of any class of outstanding equity interest is at such time
owned directly or indirectly, beneficially or of record, by such Person
or one or more Subsidiaries of such Person. As used in this Agreement,
"wholly-owned," and similar terms, in respect of a Subsidiary, means
that the specified Person owns all of each class of outstanding capital
stock and other equity interests of such Subsidiary, beneficially and
of record, directly or through one or more wholly-owned Subsidiaries of
such Person. So long as Finanziaria Ca.Me.S., S.p.A. is not
consolidated with the Borrower for financial reporting purposes, the
Borrower does not have management control over it, and it is not a
wholly-owned Subsidiary of the Borrower, Distribution or Hertel,
neither it nor its Subsidiaries shall be deemed "Subsidiaries" of the
Borrower for purposes of Articles V, VI and VII.
"Subsidiary Guarantors" shall mean the Subsidiaries of the
Borrower from time to time parties to the Subsidiary Guaranty.
"Subsidiary Guaranty" shall mean the Guaranty and Suretyship
Agreement of even date herewith made by the Subsidiary Guarantors
referred to therein in favor of Deutsche Bank AG, New York Branch, as
Administrative Agent, in substantially the form attached hereto as
Exhibit F, as the same may be amended, modified or supplemented from
time to time.
"Supermajority Lenders" shall mean Lenders holding in the
aggregate 75% of the sum of the Committed Amounts or, if the
Commitments have terminated, Lenders holding in the aggregate 75% of
the sum of the outstanding principal amount of Loans.
"Taxes" shall have the meaning set forth in Section 2.11(a).
"Transfer Effective Date" shall have the meaning set forth in
the applicable Transfer Supplement.
"Transfer Supplement" shall have the meaning set forth in
Section 9.14(c).
1.02 CONSTRUCTION. In this Agreement, unless the context
otherwise clearly requires, references to the plural include the singular, the
singular the plural and the part the whole; the neuter case includes the
masculine and feminine cases; and "or" is not exclusive. In this Agreement, any
references to property (or similar terms) include any interest in such property
(or other item referred to); "include," "includes," "including" and similar
terms are not limiting; "hereof," "herein," "hereunder" and similar terms refer
to this Agreement (as amended from time to time) as a whole and not to any
particular provision; and "determination" (and similar terms) by a Lender Party
include good faith estimates (in the case of quantitative determinations) and
good faith beliefs (in the case of qualitative determinations). Section and
other headings in this Agreement, and any table of contents herein, are for
reference only and shall not affect the interpretation of this Agreement in any
respect. Section and other references in this Agreement are to this Agreement
unless otherwise specified. This Agreement has been fully negotiated between the
applicable parties, each party having the benefit of legal counsel of its
selection, and accordingly no doctrine of construction of ambiguities against
the party controlling the drafting shall apply to this Agreement.
1.03 ACCOUNTING PRINCIPLES.
(a) GAAP. As used herein, "GAAP" shall mean generally accepted
accounting principles in the United States, applied on a basis consistent with
the principles used in preparing the
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Borrower's financial statements as of June 30, 1997, and for the fiscal year
then ended, as referred to in Section 3.06.
(b) ACCOUNTING AND FINANCIAL DETERMINATIONS, ETC. Except as
otherwise provided in this Agreement, all computations and determinations as to
accounting or financial matters shall be made, and all financial statements to
be delivered pursuant to this Agreement shall be prepared, in accordance with
GAAP (including principles of consolidation where appropriate), and all
accounting or financial terms shall have the meanings ascribed to such terms by
GAAP.
(c) CHANGES. If and to the extent that the financial
statements generally prepared by the Borrower apply accounting principles other
than GAAP, all financial statements delivered pursuant to this Agreement shall
be accompanied by a certificate of a Responsible Officer reconciling in
reasonable detail such financial statements to GAAP.
[End of Annex A]
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COMMITMENT SCHEDULE
- -------------------------------------------- ------------------------------
NAME OF LENDER INITIAL COMMITTED AMOUNT
- -------------------------------------------- ------------------------------
Deutsche Bank AG, New York Branch and/or
Cayman Islands Branch EUR 25,000,000
- -------------------------------------------- ------------------------------
Mellon Bank, N.A. EUR 25,000,000
- -------------------------------------------- ------------------------------
PNC Bank, National Association EUR 25,000,000
- -------------------------------------------- ------------------------------
Bank One, NA EUR 25,000,000
- -------------------------------------------- ------------------------------
The Bank of New York EUR 17,000,000
- -------------------------------------------- ------------------------------
Bank of Tokyo-Mitsubishi EUR 25,000,000
- -------------------------------------------- ------------------------------
Dai-Ichi Kangyo Bank EUR 25,000,000
- -------------------------------------------- ------------------------------
Hypovereinsbank EUR 25,000,000
- -------------------------------------------- ------------------------------
Keybank National Association EUR 20,000,000
- -------------------------------------------- ------------------------------
- -------------------------------------------- ------------------------------
TOTAL INITIAL COMMITTED AMOUNT EUR 212,000,000
- -------------------------------------------- ------------------------------
[End of Commitment Schedule]
(i)
1
Exhibit 10.3
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
GUARANTY AND SURETYSHIP AGREEMENT
dated as of December 20, 2000
made by
THE SUBSIDIARY GUARANTORS REFERRED TO HEREIN
in favor of
DEUTSCHE BANK AG, NEW YORK BRANCH
as Administrative Agent
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
2
TABLE OF CONTENTS
SECTION TITLE PAGE
c
ARTICLE I DEFINITIONS
1.01 Certain Definitions................................................... 1
ARTICLE II GUARANTY AND SURETYSHIP
2.01 Guaranty and Suretyship............................................... 2
2.02 Obligations Absolute.................................................. 2
2.03 Waiver, etc........................................................... 3
2.04 Reinstatement......................................................... 4
2.05 No Stay............................................................... 4
2.06 Payments.............................................................. 4
2.07 Subrogation, etc...................................................... 4
2.08 Continuing Agreement.................................................. 4
2.09 Limitation on Payments................................................ 4
2.10 Limitation on Obligations............................................. 5
2.11 Taxes................................................................. 5
2.12 Release of Subsidiary Guarantor....................................... 6
ARTICLE III REPRESENTATIONS AND WARRANTIES
3.01 Credit Agreement...................................................... 6
3.02 Representations and Warranties Remade at Each Extension of Credit..... 7
ARTICLE IV COVENANTS
4.01 Covenants Generally................................................... 7
ARTICLE V MISCELLANEOUS
5.01 Amendments, etc....................................................... 7
5.02 No Implied Waiver; Remedies Cumulative................................ 7
5.03 Notices............................................................... 7
5.04 Expenses.............................................................. 7
5.05 Entire Agreement...................................................... 8
5.06 Survival.............................................................. 8
5.07 Counterparts.......................................................... 8
5.08 Setoff................................................................ 8
5.09 Construction.......................................................... 8
5.10 Successors and Assigns................................................ 8
5.11 Joint and Several Obligations......................................... 9
5.12 Credit Agreement...................................................... 9
5.13 Additional Subsidiary Guarantors...................................... 9
5.14 Governing Law; Submission to Jurisdiction; Waiver of Jury Trial;
Limitation of Liability............................................. 9
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3
Annex A Form of Additional Subsidiary Guarantor Supplement
Annex B Form of Opinion of Counsel to Additional Subsidiary Guarantor
-ii-
4
GUARANTY AND SURETYSHIP AGREEMENT
THIS AGREEMENT, dated as of December 20, 2000, made by each of
the Persons executing this Agreement as a Subsidiary Guarantor and each other
Person which from time to time becomes a Subsidiary Guarantor party hereto
(each, a "Subsidiary Guarantor"), in favor of Deutsche Bank AG, New York Branch,
as Administrative Agent for the Lenders party to the Credit Agreement referred
to below (in such capacity, together with its successors, the "Administrative
Agent").
RECITALS:
A. Kennametal Inc., a Pennsylvania corporation (the
"Borrower") has entered into a Credit Agreement of even date herewith with the
Lenders parties thereto from time to time and Deutsche Bank AG, New York Branch,
as Administrative Agent (as amended, modified or supplemented from time to time,
the "Credit Agreement"). Each Subsidiary Guarantor will derive substantial
direct and indirect benefit from the transactions contemplated by the Credit
Agreement, and each Subsidiary Guarantor may receive proceeds of extensions of
credit under the Credit Agreement from time to time.
B. It is a condition precedent to the extension of credit
under the Credit Agreement that the Subsidiary Guarantors execute and deliver
this Agreement. This Agreement, among other things, is made by the Subsidiary
Guarantors to induce the Lender Parties to enter into the Loan Documents and to
induce the Lender Parties to extend credit under the Credit Agreement.
C. Each Subsidiary Guarantor further acknowledges that it has,
independently and without reliance upon the Lender Parties or any representation
by or other information from the Lender Parties, made its own credit analysis
and decision to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises, and
intending to be legally bound, each Subsidiary Guarantor hereby agrees as
follows:
ARTICLE I
DEFINITIONS
1.01. DEFINITIONS. Capitalized terms not otherwise defined
herein shall have the meanings given such terms in the Credit Agreement.
ARTICLE II
GUARANTY AND SURETYSHIP
2.01. GUARANTY AND SURETYSHIP. Each Subsidiary Guarantor
hereby absolutely, unconditionally and irrevocably guarantees and becomes surety
for the full and punctual payment and performance of the Obligations as and when
such payment or performance shall become due (at scheduled maturity, by
acceleration or otherwise) in accordance with the terms of the Loan Documents.
This Agreement is an agreement of suretyship as well as of guaranty, is a
guarantee of payment and performance and not merely of collectibility, and is in
no way conditioned upon any attempt to collect from or proceed against the
Borrower, any other Subsidiary Guarantor or any other Person or any other event
or circumstance. The obligations of each Subsidiary Guarantor under this
Agreement are direct and primary obligations of such Subsidiary Guarantor and
are independent of the Obligations, and a separate action or actions may be
brought against such Subsidiary Guarantor regardless of whether action
5
is brought against the Borrower, any other Subsidiary Guarantor or any other
Person or whether the Borrower, any other Subsidiary Guarantor or any other
Person is joined in any such action or actions.
2.02. OBLIGATIONS ABSOLUTE. Each Subsidiary Guarantor agrees
that the Obligations will be paid and performed strictly in accordance with the
terms of the Loan Documents, regardless of any Law, regulation or order now or
hereafter in effect in any jurisdiction affecting the Obligations, any of the
terms of the Loan Documents or the rights of any Loan Party or any other Person
with respect thereto. The obligations of each Subsidiary Guarantor under this
Agreement shall be absolute, unconditional and irrevocable, irrespective of any
of the following:
(a) any lack of legality, validity, enforceability,
allowability (in a bankruptcy, insolvency, reorganization, dissolution
or similar proceeding, or otherwise), or any avoidance or
subordination, in whole or in part, of any Loan Document or any of the
Obligations;
(b) any change in the amount, nature, time, place or manner of
payment or performance of, or in any other term of, any of the
Obligations (whether or not such change is contemplated by the Loan
Documents as presently constituted, and specifically including any
increase in the Obligations, whether resulting from the extension of
additional credit to the Borrower or otherwise), any execution of any
additional Loan Documents, or any amendment or waiver of or any consent
to departure from any Loan Document;
(c) any taking, exchange, release, impairment or nonperfection
of any collateral, or any taking, release, impairment or amendment or
waiver of or consent to departure from any other guaranty or other
direct or indirect security for any of the Obligations;
(d) any manner of application of any collateral or other
direct or indirect security for any of the Obligations, or proceeds
thereof, to any of the Obligations or to other obligations secured
thereby, or any manner of sale or other disposition of any collateral
for any of the Obligations or any other assets of any Loan Party;
(e) any impairment by any Lender Party or any other Person of
any recourse of such Subsidiary Guarantor against any Loan Party or any
other Person, or any other impairment by any Lender Party or any other
Person of the suretyship status of such Subsidiary Guarantor;
(f) any bankruptcy, insolvency, reorganization, dissolution or
similar proceedings with respect to, or any change, restructuring or
termination of the corporate structure or existence of, any Loan Party,
such Subsidiary Guarantor or any other Person;
(g) any failure of any Lender Party or any other Person to
disclose to such Subsidiary Guarantor any information pertaining to the
business, operations, condition (financial or other) or prospects of
any Loan Party or any other Person, or to give any other notice,
disclosure or demand; or
(h) any other event or circumstance (excluding only the
defense of full, strict and indefeasible payment and performance) that
might otherwise constitute a defense available to, a discharge of, or a
limitation on the obligations of, any Loan Party, such Subsidiary
Guarantor or a guarantor or surety.
2.03. WAIVERS, ETC. Each Subsidiary Guarantor hereby
irrevocably waives any defense to or limitation on its obligations under this
Agreement arising out of or based upon any matter referred
-2-
6
to in Section 2.02. Without limiting the generality of the foregoing, each
Subsidiary Guarantor hereby irrevocably waives each of the following:
(a) all notices, disclosures and demands of any nature which
otherwise might be required from time to time to preserve intact any
rights against such Subsidiary Guarantor, including (i) any notice of
any event or circumstance described in Section 2.02, (ii) any notice
required by any law, regulation or order now or hereafter in effect in
any jurisdiction, (iii) any notice of nonpayment, nonperformance,
dishonor, or protest under any Loan Document or any of the Obligations,
(iv) any notice of the incurrence of any Obligation, (v) any notice of
any default or any failure on the part of any Loan Party or any other
Person to comply with any Loan Document or any of the Obligations or
any direct or indirect security for any of the Obligations, and (vi)
any notice of any information pertaining to the business, operations,
condition (financial or other) or prospects of any Loan Party or any
other Person;
(b) any right to any marshalling of assets, to the filing of
any claim against any Loan Party or any other Person in the event of
any bankruptcy, insolvency, reorganization, dissolution or similar
proceeding, or to the exercise against any Loan Party or any other
Person of any other right or remedy under or in connection with any
Loan Document or any of the Obligations or any direct or indirect
security for any of the Obligations; any requirement of promptness or
diligence on the part of the Lender Parties or any other Person; any
requirement to exhaust any remedies under or in connection with, or to
mitigate the damages resulting from default under, any Loan Document or
any of the Obligations or any direct or indirect security for any of
the Obligations; and any requirement of acceptance of this Agreement,
and any requirement that such Subsidiary Guarantor receive notice of
such acceptance; and
(c) any defense or other right arising by reason of any Law
now or hereafter in effect in any jurisdiction pertaining to election
of remedies (including anti-deficiency laws, "one action" laws or
similar laws), or by reason of any election of remedies or other action
or inaction by the Lender Parties (including commencement or completion
of any judicial proceeding or nonjudicial sale or other action in
respect of any collateral security for any of the Obligations), which
results in denial or impairment of the right of the Lender Parties to
seek a deficiency against any Loan Party any other Person, or which
otherwise discharges or impairs any of the Obligations or any recourse
of such Subsidiary Guarantor against any Loan Party or any other
Person.
2.04. REINSTATEMENT. This Agreement shall continue to be
effective, or be automatically reinstated, as the case may be, if at any time
payment of any of the Obligations is avoided, rescinded or must otherwise be
returned by any Lender Party for any reason, all as though such payment had not
been made.
2.05. NO STAY. Without limiting the generality of any other
provision of this Agreement, if any acceleration of the time for payment or
performance of any Obligation, or any condition to any such acceleration, shall
at any time be stayed, enjoined or prevented for any reason (including stay or
injunction resulting from the pendency against any Loan Party or any other
Person of a bankruptcy, insolvency, reorganization, dissolution or similar
proceeding), each Subsidiary Guarantor agrees that, for purposes of this
Agreement and its obligations hereunder, at the option of the Administrative
Agent, such Obligation shall be deemed to have been accelerated and such
condition to acceleration shall be deemed to have been met.
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2.06. PAYMENTS. All payments to be made by each Subsidiary
Guarantor pursuant to this Agreement (other than payments to a Lender Party
under Section 2.11) shall be made to the Administrative Agent at the time
prescribed for payments of the underlying Obligation in the applicable Loan
Document, without setoff, counterclaim, withholding or other deduction of any
nature. The Administrative Agent shall apply such payments received by it in
accordance with the applicable terms of the Credit Agreement.
2.07. SUBROGATION, ETC. Any rights which any Subsidiary
Guarantor may have or acquire by way of subrogation, reimbursement, restitution,
exoneration, contribution or indemnity, and any similar rights (whether arising
by operation of law, by agreement or otherwise), against the Borrower, any other
Subsidiary Guarantor or any other Person arising from the existence, payment,
performance or enforcement of any of the obligations of such Subsidiary
Guarantor under or in connection with this Agreement, shall be subordinate in
right of payment to the Obligations, and such Subsidiary Guarantor shall not
exercise any such rights until all Obligations and all other obligations under
this Agreement have been paid in cash and performed in full and all commitments
to extend credit under the Loan Documents shall have terminated. If,
notwithstanding the foregoing, any amount shall be received by a Subsidiary
Guarantor on account of any such rights at any time prior to the time at which
all Obligations and all other obligations under this Agreement shall have been
paid in cash and performed in full and all commitments to extend credit under,
the Loan Documents shall have terminated, such amount shall be held by such
Subsidiary Guarantor in trust for the benefit of the Lender Parties, segregated
from other funds held by such Subsidiary Guarantor, and shall be forthwith
delivered to the Administrative Agent in the exact form received by such
Subsidiary Guarantor (with any necessary endorsement), to be applied to the
Obligations, whether matured or unmatured, in accordance with the applicable
terms of the Credit Agreement, or at the option of the Administrative Agent,
held by the Administrative Agent on behalf of the Lender Parties as security for
the Obligations to be disposed of by the Administrative Agent in accordance with
the applicable collateral agency agreement.
2.08. CONTINUING AGREEMENT. This Agreement is a continuing
guaranty and shall continue in full force and effect until all Obligations and
all other amounts payable under this Agreement have been paid in cash and
performed in full, and all commitments to extend credit under, the Loan
Documents have terminated, subject in any event to reinstatement in accordance
with Section 2.04. Without limiting the generality of the foregoing, each
Subsidiary Guarantor hereby irrevocably waives any right to terminate or revoke
this Agreement.
2.09. LIMITATION ON PAYMENTS. The parties hereto intend to
conform to all applicable Laws limiting the maximum rate of interest that may be
charged or collected by the Lender Parties from any Subsidiary Guarantor.
Accordingly, notwithstanding any other provision hereof, a Subsidiary Guarantor
shall not be required to make any payment to or for the account of a Lender
Party, and such Lender Party shall refund any payment made by such Subsidiary
Guarantor, to the extent that such requirement or such failure to refund would
violate or conflict with mandatory and nonwaivable provisions of applicable Law
limiting the maximum amount of interest which may be charged or collected by
such Lender Party from such Subsidiary Guarantor.
2.10. LIMITATION ON OBLIGATIONS. Notwithstanding any other
provision hereof, to the extent that mandatory and nonwaivable provisions of
applicable Law pertaining to fraudulent transfer or fraudulent conveyance
otherwise would render the full amount of the obligations of a Subsidiary
Guarantor under this Agreement avoidable, invalid or unenforceable, the
obligations of such Subsidiary Guarantor under this Agreement shall be limited
to the maximum amount which does not result in such avoidability, invalidity or
unenforceability. In any action, suit or proceeding pertaining to this
Agreement, it is agreed by the parties hereto that the burden of proof, by clear
and convincing evidence,
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shall be on the Person claiming that this Section 2.10 applies to limit any
obligation of such Subsidiary Guarantor under this Agreement, or claiming that
any obligation of such Subsidiary Guarantor under this Agreement is avoidable,
invalid or unenforceable, as to each element of such claim.
2.11. TAXES.
(a) PAYMENTS NET OF TAXES. All payments made by each
Subsidiary Guarantor under this Agreement or any other Loan Document shall be
made free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding (x) in the case of each Lender Party, net income
taxes imposed on such Lender Party by the United States, and net income taxes
and franchise taxes imposed on such Lender Party by the jurisdiction under the
Laws of which such Lender Party is organized or by any political subdivision
thereof, and (y) in the case of each Lender Party, net income taxes and
franchise taxes imposed on such Lender Party by the jurisdiction in which is
located the Lender Party's Lending Office or other office which makes or books a
particular extension of credit or transaction under the Loan Documents or any
political subdivision thereof (all such non-excluded taxes, levies, imposts,
deduction, charges, withholdings and liabilities being referred to as "Taxes").
If any Subsidiary Guarantor shall be required by Law to deduct any Taxes from or
in respect of any sum payable under this Agreement or any other Loan Document to
any Lender Party, (i) the sum payable shall be increased as may be necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section 2.11) such Lender Party receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) such Subsidiary Guarantor shall make such deductions, and (iii) such
Subsidiary Guarantor shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable Law.
(b) OTHER TAXES. Each Subsidiary Guarantor agrees to pay any
present or future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies which arise from any payment made under this
Agreement or any other Loan Document to which it is party or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement or any
other Loan Document to which it is party (hereinafter referred to as "Other
Taxes").
(c) INDEMNITY. Each Subsidiary Guarantor hereby indemnifies
each Lender Party for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.11) paid by such Lender Party and any
liability (including, without limitation, penalties, interest and expenses)
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall be made
within 15 days from the date such Lender Party makes written demand therefor
(which demand shall identify in reasonable detail the nature and the amount of
Taxes and Other Taxes for which indemnification is being sought).
(d) RECEIPTS, ETC. Within 30 days after the date of any
payment of Taxes or Other Taxes, each Subsidiary Guarantor will furnish to the
Administrative Agent the original or a certified copy of a receipt evidencing
payment thereof.
(e) OTHER. Without prejudice to the survival of any other
agreement of any Subsidiary Guarantor hereunder, the obligations of each
Subsidiary Guarantor contained in this Section 2.11 shall survive the payment in
full of all other obligations of the Subsidiary Guarantor under this Agreement
and the other Loan Documents, termination of all commitments to extend credit
under, the Loan Documents, and all other events and circumstances. Nothing in
this Section 2.11 or otherwise in this Agreement shall
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9
require any Lender Party to disclose to any Subsidiary Guarantor any of its tax
returns (or any other information that it deems to be confidential or
proprietary).
2.12. RELEASE OF SUBSIDIARY GUARANTOR. Upon the sale or other
disposition of all of the capital stock of and other equity interests in a
Subsidiary Guarantor to a Person or Persons other than the Borrower or a
Subsidiary of the Borrower, which sale or other disposition is in compliance
with the Loan Documents, the Administrative Agent will, at such Subsidiary
Guarantor's expense, release such Subsidiary Guarantor from its obligations
under this Agreement; provided, however, that (a) at the time of such request
and such release no Event of Default or Potential Default shall have occurred
and be continuing, (b) such Subsidiary Guarantor shall have delivered to the
Administrative Agent, at least five Business Days prior to the date of the
proposed release, a written request for release describing the terms of the sale
or other disposition in reasonable detail, including the price thereof and any
expenses in connection therewith, together with a form for release for execution
by the Administrative Agent and a certification by a Responsible Officer of the
Borrower to the effect that the transaction is in compliance with the Loan
Documents and as to such other matters as the Administrative Agent may in good
faith request, (c) no Lender Party shall have given to the Administrative Agent,
prior to the proposed release, a notice to the effect that the conditions set
forth in this Section 2.12 have not been satisfied and specifically requesting
that the Administrative Agent not effect such release, and (d) the proceeds of
any such sale or other disposition required to be applied in accordance with
Section 2.07 of the Credit Agreement, or any successor provision of similar
import, shall be paid to, or in accordance with the instructions of, the
Administrative Agent in accordance with the Credit Agreement. The obligations of
the Subsidiary Guarantor under Sections 2.11 and 5.04 of this Agreement shall
survive any termination or release hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.01. CREDIT AGREEMENT. The provisions of Article III of the
Credit Agreement are hereby incorporated by reference (together with all related
definitions and cross references), insofar as such provisions relate to a
Subsidiary Guarantor or any Subsidiary of a Subsidiary Guarantor. Each
Subsidiary Guarantor hereby represents and warrants to the Lender Parties as
provided therein.
3.02. REPRESENTATIONS AND WARRANTIES REMADE AT EACH EXTENSION
OF CREDIT. Each request (including any deemed request) by the Borrower for any
extension of credit under any Loan Document shall be deemed to constitute a
representation and warranty by each Subsidiary Guarantor to the Lender Parties
that the representations and warranties made by such Subsidiary Guarantor in
this Article III are true and correct on and as of the date of such request with
the same effect as though made on and as of such date. The absence of notice to
the Administrative Agent from a Subsidiary Guarantor to the contrary before any
extension of credit under any Loan Document shall constitute a further
representation and warranty by such Subsidiary Guarantor to the Lender Parties
that the representations and warranties made by such Subsidiary Guarantor in
this Article III are true and correct on and as of the date of such extension of
credit with the same effect as though made on and as of such date.
ARTICLE IV
COVENANTS
4.01. COVENANTS GENERALLY. Reference is hereby made to the
provisions of Articles V and VI of the Credit Agreement (together with all
related definitions and cross-references). Each
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Subsidiary Guarantor hereby agrees that, to the extent such provisions impose
upon the Borrower a duty to cause any Subsidiary Guarantor to do or refrain
from doing certain acts or things or to meet or refrain from meeting certain
conditions, such Subsidiary Guarantor shall do or refrain from doing such acts
or things, or meet or refrain from meeting such conditions, as the case may be.
ARTICLE V
MISCELLANEOUS
5.01. AMENDMENTS, ETC. No amendment to or waiver of any
provision of this Agreement, and no consent to any departure by any Subsidiary
Guarantor herefrom, shall in any event be effective unless in a writing manually
signed by or on behalf of such Subsidiary Guarantor and the Administrative
Agent. Any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. Such amendments, waivers
and consents shall be made in accordance with, and shall be subject to, Section
9.03 of the Credit Agreement.
5.02. NO IMPLIED WAIVER; REMEDIES CUMULATIVE. No delay or
failure of the Administrative Agent or any other Lender Party in exercising any
right or remedy under this Agreement shall operate as a waiver thereof; nor
shall any single or partial exercise of any such right or remedy preclude any
other or further exercise thereof or the exercise of any other right or remedy.
The rights and remedies of the Administrative Agent or any other Lender Party
under this Agreement are cumulative and not exclusive of any other rights or
remedies available hereunder, under any other agreement, at law, or otherwise.
5.03. NOTICES. Except to the extent, if any, otherwise
expressly provided herein, all notices and other communications (collectively,
"notices") under this Agreement shall be given, shall be effective, and may be
relied upon, in the same way as notices under the Credit Agreement.
5.04. EXPENSES. Each Subsidiary Guarantor agrees to pay upon
demand all reasonable expenses (including reasonable fees and expenses of
counsel) which the Administrative Agent or any other Lender Party may incur from
time to time arising from or relating to the administration of, or exercise,
enforcement or preservation of rights or remedies under, this Agreement.
5.05. ENTIRE AGREEMENT. This Agreement and the other Loan
Documents constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and thereof and supersede all prior and
contemporaneous understandings and agreements.
5.06. SURVIVAL. All representations and warranties of the each
Subsidiary Guarantor contained in or made in connection with this Agreement
shall survive, and shall not be waived by, the execution and delivery of this
Agreement, any investigation by or knowledge of any Lender Party, any extension
of credit, termination of this Agreement, or any other event or circumstance
whatsoever.
5.07. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all such
counterparts shall constitute but one and the same agreement.
5.08. SETOFF. In the event that any obligation of a Subsidiary
Guarantor now or hereafter existing under this Agreement or any other Loan
Document shall have become due and payable, each Lender Party shall have the
right from time to time, without notice to such Subsidiary Guarantor, to set off
against and apply to such due and payable amount any obligation of any nature of
such Lender Party
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to such Subsidiary Guarantor, including all deposits (whether time or demand,
general or special, provisionally or finally credited, however evidenced) now or
hereafter maintained by such Subsidiary Guarantor with such Lender Party. Such
right shall be absolute and unconditional in all circumstances and, without
limitation, shall exist whether such obligation to such Subsidiary Guarantor is
absolute or contingent, matured or unmatured (it being agreed that such Lender
Party may deem such obligation to be then due and payable at the time of such
setoff), regardless of the offices or branches through which the parties are
acting with respect to the offset obligations, and regardless of the existence
or adequacy of any other direct or indirect security or any other right or
remedy available to such Lender Party. Nothing in this Agreement or any other
Loan Document shall be deemed a waiver of or restriction on any right of setoff
or banker's lien available to a Lender Party under this Section 5.08, at law or
otherwise. Each Subsidiary Guarantor hereby agrees that any affiliate of a
Lender Party, and any holder of a participation in any obligation of such
Subsidiary Guarantor under this Agreement, shall have the same rights of setoff
as the Lender Parties as provided in this Section 5.08 (regardless of whether
such affiliate or participant otherwise would be deemed a creditor of such
Subsidiary Guarantor).
5.09. CONSTRUCTION. In this Agreement, unless the context
otherwise clearly requires, references to the plural include the singular, the
singular the plural, and the part the whole; the neuter case includes the
masculine and feminine cases; and "or" is not exclusive. In this Agreement, any
references to property (or similar terms) include any interest in such property
(or other item referred to); "include," "includes," "including" and similar
terms are not limiting; and "hereof," "herein," "hereunder" and similar terms
refer to this Agreement as a whole and not to any particular provision. Section
and other headings in this Agreement, and any table of contents herein, are for
reference purposes only and shall not affect the interpretation of this
Agreement in any respect. Section and other references in this Agreement are to
this Agreement unless otherwise specified. This Agreement has been fully
negotiated between the applicable parties, each party having the benefit of
legal counsel, and accordingly neither any doctrine of construction of
guaranties in favor of the Lender Party, nor any doctrine of construction of
ambiguities against the party controlling the drafting, shall apply to this
Agreement.
5.10. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon each Subsidiary Guarantor and its successors and assigns, and shall inure
to the benefit of and be enforceable by the Administrative Agent and the other
Lender Parties and their respective successors and assigns. Without limitation
of the foregoing, each Lender Party (and any successive assignee or transferee)
from time to time may assign or otherwise transfer all or any portion of its
rights or obligations under the Loan Documents (including all or any portion of
any commitment to extend credit), or any Obligations, to any other Person, and
such Obligations (including any Obligations resulting from extension of credit
by such other Person under or in connection with the Loan Documents) shall be
and remain Obligations entitled to the benefit of this Agreement, and to the
extent of its interest in such Obligations such other Person shall be vested
with all the benefits in respect thereof granted to the Lender Party in this
Agreement or otherwise.
5.11. JOINT AND SEVERAL OBLIGATIONS. The obligations of the
Subsidiary Guarantors hereunder are joint and several obligations of each of
them.
5.12. CREDIT AGREEMENT. This Agreement is a Loan Document
referred to in the Credit Agreement. The provisions of the Credit Agreement are
supplemental to the provisions of this Agreement. Each Subsidiary Guarantor
acknowledges receipt of a copy of the Credit Agreement.
5.13. ADDITIONAL SUBSIDIARY GUARANTORS. Upon execution by a
Person of a supplement in the form of Annex A, such Person shall become party
hereto as an additional Subsidiary Guarantor and shall be subject to and bound
by all of the provisions hereof. The addition of any additional Subsidiary
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Guarantor as a party to this Agreement shall not require the consent of any
other Subsidiary Guarantor. The rights and obligations of each Subsidiary
Guarantor shall remain in full force and effect following the addition of any
additional Subsidiary Guarantor as a party to this Agreement. Such additional
Subsidiary Guarantor shall comply with the provisions of Section 5.12 of the
Credit Agreement and, without limiting the generality of the foregoing, shall
within the time prescribed therein deliver to the Administrative Agent an
opinion of counsel in substantially the form of Annex B, and covering such other
matters as the Administrative Agent may reasonably request.
5.14. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
JURY TRIAL; LIMITATION OF LIABILITY.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
(b) CERTAIN WAIVERS. EACH SUBSIDIARY GUARANTOR HEREBY
IRREVOCABLY AND UNCONDITIONALLY:
(I) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY STATEMENT, COURSE OF
CONDUCT, ACT, OMISSION OR EVENT OCCURRING IN CONNECTION HEREWITH
(COLLECTIVELY, "RELATED LITIGATION") MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN NEW YORK COUNTY, NEW
YORK, SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND TO THE FULLEST
EXTENT PERMITTED BY LAW AGREES THAT IT WILL NOT BRING ANY RELATED
LITIGATION IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE
RIGHT OF ANY LENDER PARTY TO BRING ANY ACTION, SUIT OR PROCEEDING IN
ANY OTHER FORUM);
(II) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE
LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT,
WAIVES ANY CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN
AN INCONVENIENT FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO
ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES
NOT HAVE JURISDICTION OVER SUCH SUBSIDIARY GUARANTOR;
(III) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT
OR OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR
CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO SUCH SUBSIDIARY GUARANTOR AT
THE ADDRESS FOR NOTICES DESCRIBED IN SECTION 9.05 OF THE CREDIT
AGREEMENT, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE
IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL
AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER
MANNER PERMITTED BY LAW); AND
(IV) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED
LITIGATION.
(c) LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED
BY LAW, NO CLAIM MAY BE MADE BY ANY SUBSIDIARY GUARANTOR AGAINST ANY LENDER
PARTY OR ANY AFFILIATE, DIRECTOR, OFFICER, EMPLOYEE, ATTORNEY OR AGENT OF ANY OF
THEM FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN
RESPECT OF ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR ANY STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT
OCCURRING IN CONNECTION HEREWITH OR THEREWITH (WHETHER FOR BREACH OF CONTRACT,
TORT OR ANY OTHER THEORY OF LIABILITY). EACH SUBSIDIARY GUARANTOR HEREBY WAIVES,
RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER SUCH
CLAIM PRESENTLY EXISTS OR ARISES HEREAFTER AND WHETHER OR NOT SUCH CLAIM IS
KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
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[This Space Intentionally Left Blank]
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IN WITNESS WHEREOF, the Subsidiary Guarantors have executed
and delivered this Agreement as of the date first above written.
KENNAMETAL HOLDINGS EUROPE, INC.
as Subsidiary Guarantor
By /s/ David T. Cofer
------------------------------------------
Title: President
Address: 1600 Technology Way
P.O. Box 231
Latrobe, Pennsylvania 15650
Attn: Treasurer
Telephone: (412) 539-5180
Facsimile: (412) 539-4668
GREENFIELD INDUSTRIES, INC.
as Subsidiary Guarantor
By /s/ David T. Cofer
------------------------------------------
Title: Secretary
Address: 1600 Technology Way
P.O. Box 231
Latrobe, Pennsylvania 15650
Attn: Treasurer
Telephone: (412) 539-5180
Facsimile: (412) 539-4668
ROGERS TOOL WORKS, INC.
as Subsidiary Guarantor
By /s/ David T. Cofer
------------------------------------------
Title: Secretary
Address: 1600 Technology Way
P.O. Box 231
Latrobe, Pennsylvania 15650
Attn: Treasurer
Telephone: (412) 539-5180
Facsimile: (412) 539-4668
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ANNEX A
TO
GUARANTY AND SURETYSHIP AGREEMENT
ADDITIONAL SUBSIDIARY GUARANTOR SUPPLEMENT
THIS SUPPLEMENT to the Guaranty and Suretyship Agreement dated
as of December __, 2000 made by the Subsidiary Guarantors referred to therein in
favor of Deutsche Bank AG, New York Branch, as Administrative Agent (such
Guaranty and Suretyship Agreement, as amended, modified or supplemented, being
referred to as the "Subsidiary Guaranty").
RECITALS:
A. Capitalized terms used herein and not otherwise defined
shall have the meanings given them in, or by reference in, the Subsidiary
Guaranty.
B. The Subsidiary Guaranty contemplates that a Person may
become party to the Subsidiary Guaranty as an additional Subsidiary Guarantor.
The Person executing this Supplement as Subsidiary Guarantor below (the
"Additional Subsidiary Guarantor") desires to become party to the Subsidiary
Guaranty as a Subsidiary Guarantor.
NOW, THEREFORE, the Additional Subsidiary Guarantor ,
intending to be legally bound hereby, represents, warrants and covenants to the
Lender Parties and the Loan Parties as follows:
SECTION 1. JOINDER. The Additional Subsidiary Guarantor hereby
becomes party to the Subsidiary Guaranty as a Subsidiary Guarantor thereunder,
and agrees that it shall be subject to and bound by all of the provisions
thereof.
SECTION 2. WARRANTIES, ETC. The Additional Subsidiary
Guarantor hereby represents and warrants to each Lender Party that each of the
representations and warranties set forth in Article III of the Subsidiary
Guaranty is true and correct, insofar as such provisions relate to the
Additional Subsidiary Guarantor or any Subsidiary of the Additional Subsidiary
Guarantor, after giving effect to this Supplement.
SECTION 3. GOVERNING LAW. This Supplement shall be governed
by, construed and enforced in accordance with the laws of the State of New York,
without regard to principles of conflicts of law.
SECTION 4. EXECUTION IN COUNTERPARTS. This Supplement may be
executed by the Additional Subsidiary Guarantor in any number of counterparts,
each of which shall be deemed to be an original, and all such counterparts shall
constitute but one and the same agreement.
16
IN WITNESS WHEREOF, the Additional Subsidiary Guarantor has
duly executed this Supplement.
-------------------------------------
as Subsidiary Guarantor
By
---------------------------------
Name:
Title:
Address:
Attn:
Telephone:
Facsimile:
Date:
-------------------------------
17
ANNEX B
TO
GUARANTY AND SURETYSHIP AGREEMENT
FORM OF OPINION OF COUNSEL TO ADDITIONAL SUBSIDIARY GUARANTOR
[Date]
To Deutsche Bank AG, New York Branch, as Administrative Agent under the
Credit Agreement referred to below and to each of the Lender Parties
from time to time referred to in the Credit Agreement
Ladies and Gentlemen:
We have acted as counsel for [name of Additional Subsidiary
Guarantor] (the "Additional Subsidiary Guarantor") and are rendering this
opinion in connection with (a) the Guaranty and Suretyship Agreement (the
"Subsidiary Guaranty," as further defined below), dated as of December 20, 2000,
made by the Subsidiary Guarantors referred to therein in favor of Deutsche Bank
AG, New York Branch, as Administrative Agent under the Credit Agreement referred
to below, and (b) the Additional Subsidiary Guarantor Supplement (the
"Supplement") executed by the Additional Subsidiary Guarantor, whereby the
Additional Subsidiary Guarantor has joined the Subsidiary Guaranty as a
Subsidiary Guarantor. Terms used herein, but not otherwise defined herein, have
the meaning ascribed thereto in the Subsidiary Guaranty. This opinion is being
delivered to you pursuant to Section 5.12 of the Credit Agreement.
In connection with opinion set forth herein, we have reviewed
originals or copies, identified to my satisfaction, of the following:
(i) the Subsidiary Guaranty, as initially executed and as
amended, modified and supplemented to date (the "Subsidiary Guaranty"),
(ii) the Supplement,
(iii) the Credit Agreement dated as of December 20, 2000 by
and among Kennametal Inc., as Borrower, the Lenders parties thereto
from time to time, and Deutsche Bank AG, New York Branch, as
Administrative Agent, as initially executed and as amended, modified
and supplemented to date (the "Credit Agreement")
(iv) the other Loan Documents (as defined in the Credit
Agreement and the Credit Agreement),
(v) the articles of incorporation and bylaws of the Additional
Subsidiary Guarantor, each as in effect on the date hereof, and
(vi) such other documents, records, certificates and
instruments as we have deemed relevant and necessary as a basis for the
opinions hereinafter expressed.
In our examination, we have assumed the genuineness of all
signatures on original documents, the authenticity of all documents submitted to
us as originals, the conformity to the originals of all copies submitted to us
as certified, conformed or photostatic copies, and the authenticity of the
18
originals of such copies. As to various questions of fact material to this
opinion, we have relied, without independent investigation or verification, upon
statements, representations and certificates of officers and other
representatives of the Additional Subsidiary Guarantor and certificates of
public officials.
Based upon the foregoing, and subject to the qualifications
and assumptions set forth herein, it is our opinion that:
1. The Additional Subsidiary Guarantor is a corporation duly
incorporated, validly existing and in good standing under the laws of [state].
2. The execution, delivery and performance by the Additional
Subsidiary Guarantor of the Supplement and the Subsidiary Guaranty (a) are
within the Additional Subsidiary Guarantor's corporate powers; (b) have been
duly authorized by all necessary corporate action on the part of the Additional
Subsidiary Guarantor; (c) require no action by or in respect of, or filing on
the part of the Additional Subsidiary Guarantor with, any governmental body,
agency or official, in each case, on the part of the Additional Subsidiary
Guarantor; and (d) do not violate or conflict with, or constitute a default by
the Additional Subsidiary Guarantor under, any provision of (i) any applicable
law, regulation, judgment, injunction, order, decree, (ii) the articles of
incorporation or bylaws of the Additional Subsidiary Guarantor, or (iii) any
material agreement or instrument to which the Additional Subsidiary Guarantor or
any of its Subsidiaries is a party or by which any of them or any of their
respective properties may be subject or bound.
3. The Supplement has been duly executed and delivered by the
Additional Subsidiary Guarantor. The Supplement and the Subsidiary Guaranty
constitute the legal, valid and binding obligation of the Additional Subsidiary
Guarantor, enforceable in accordance with their respective terms.
4. The Additional Subsidiary Guarantor is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
The opinions set forth herein are subject to the following
qualifications and limitations:
(a) The enforceability of the Supplement and the Subsidiary
Guaranty may be limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws relating to or affecting the rights
of creditors generally.
(b) The enforceability of the Supplement and the Subsidiary
Guaranty may be limited by general principles of equity including, without
limitation, concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law). In
applying such principles a court, among other things, might not allow a creditor
to accelerate maturity of a debt under certain circumstances including, without
limitations, upon the occurrence of a default deemed immaterial. Such principles
as applied by a court might include a requirement that a creditor act with
reasonableness and in good faith.
(c) The remedy of specific performance and injunctive and
other forms of equitable relief are subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
In rendering the foregoing opinion, we do not express any
opinion as to any laws other than the laws of [the jurisdiction of incorporation
of the Additional Subsidiary Guarantor], the laws of the State of New York, and
the federal laws of the United States of America.
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The opinion expressed herein is based upon the laws in effect
on the date hereof, and we assume no obligation to revise or supplement this
opinion should any such law be changed by legislative action, judicial decision,
or otherwise.
The opinion is being delivered to you solely for your benefit,
and neither this opinion nor any part hereof may be delivered to, or used,
referred to or relied upon, by any other person without our express prior
written consent.
Very truly yours,
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