Multi-Currency, Multi-Option Credit Agreement - Harman International Industries Inc., Chemical Securities Inc., Nationsbank of North Carolina NA and Chemical Bank
MULTI-CURRENCY, MULTI-OPTION
CREDIT AGREEMENT
among
HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED
The Subsidiary Borrowers and Subsidiary Guarantors
The Several Lenders
from Time to Time Hereto
CHEMICAL SECURITIES, INC.
as Arranger
NATIONSBANK OF NORTH CAROLINA, N.A.,
as Co-Agent
CHEMICAL BANK
as Administrative Agent
Dated as of September 30, 1994
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TABLE OF CONTENTS
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SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . .
2
1.1 Defined Terms . . . . . . . . . . . . . . . . . .
2
1.2 Other Definitional Provisions . . . . . . . . . . 22
SECTION 2. THE COMMITTED RATE LOANS . . . . . . . . . . . . 23
2.1 Committed Rate Loans . . . . . . . . . . . . . . 23
2.2 Procedure for Committed Rate Loan Borrowing . . . 23
2.3 Repayment of Committed Rate Loans; Evidence of
Debt . . . . . . . . . . . . . . . . . . . . 24
2.4 Termination or Reduction of Commitments . . . . . 24
2.5 Optional Prepayments . . . . . . . . . . . . . . . 25
2.6 Conversion and Continuation Options . . . . . . . 25
2.7 Minimum Amounts of Tranches . . . . . . . . . . . 26
2.8 Interest rates and Payment Dates for Committed
Rate Loans . . . . . . . . . . . . . . . . . . 26
2.9 Inability to Determine Interest Rate . . . . . . . 26
SECTION 3. THE COMPETITIVE ADVANCE LOANS . . . . . . . . . . 27
3.1 Competitive Advance Loans . . . . . . . . . . . . 27
3.2 Procedure for Competitive Advance Loan Borrowing . 28
3.3 Repayment of Competitive Advance Loans; Evidence
of Debt . . . . . . . . . . . . . . . . . . . 28
3.4 Prepayments . . . . . . . . . . . . . . . . . . . 28
SECTION 4. THE SWING LINE LOANS . . . . . . . . . . . . . . 29
4.1 Swing Line Loans . . . . . . . . . . . . . . . . . 29
4.2 Procedure for Swing Line Borrowing . . . . . . . . 29
4.3 Repayment of Swing Line Loans; Evidence of Debt . 29
4.4 Allocating Swing Line Loans; Swing Line Loan
Participations . . . . . . . . . . . . . . . . 30
SECTION 5. THE LETTERS OF CREDIT . . . . . . . . . . . . . . 31
5.1 L/C Commitment . . . . . . . . . . . . . . . . . . 31
5.2 Procedure for Issuance of Letters of Credit under
this Agreement . . . . . . . . . . . . . . . . 32
5.3 Fees, Commissions and Other Charges . . . . . . . 33
5.4 L/C Participations . . . . . . . . . . . . . . . . 33
5.5 Reimbursement Obligation of the Borrowers . . . . 34
5.6 Obligations Absolute . . . . . . . . . . . . . . . 35
5.7 Letter of Credit Payments . . . . . . . . . . . . 35
5.8 Application . . . . . . . . . . . . . . . . . . . 36
SECTION 6. CERTAIN PROVISIONS APPLICABLE TO THE LOANS AND
LETTERS OF CREDIT . . . . . . . . . . . . . . 36
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6.1 Facility Fee . . . . . . . . . . . . . . . . . . . 36
6.2 Computation of Interest and Fees . . . . . . . . . 36
6.3 Pro Rata Treatment and Payments . . . . . . . . . 36
6.4 Illegality . . . . . . . . . . . . . . . . . . . . 38
6.5 Requirements of Law . . . . . . . . . . . . . . . 38
6.6 Taxes . . . . . . . . . . . . . . . . . . . . . . 40
6.7 Indemnity . . . . . . . . . . . . . . . . . . . . 42
6.8 Change of Lending Office . . . . . . . . . . . . . 43
6.9 Company Controls on Exposure; Calculation of
Exposure; Prepayment if Exposure exceeds
Commitments . . . . . . . . . . . . . . . . . 44
SECTION 7. REPRESENTATIONS AND WARRANTIES . . . . . . . . . 45
7.1 Financial Condition . . . . . . . . . . . . . . . 45
7.2 No Change . . . . . . . . . . . . . . . . . . . . 45
7.3 Corporate Existence; Compliance with Law . . . . . 46
7.4 Corporate Power; Authorization; Enforceable
Obligations . . . . . . . . . . . . . . . . . 46
7.5 No Legal Bar . . . . . . . . . . . . . . . . . . . 46
7.6 No Material Litigation . . . . . . . . . . . . . . 47
7.7 No Default . . . . . . . . . . . . . . . . . . . . 47
7.8 Ownership of Property; Liens . . . . . . . . . . . 47
7.9 Intellectual Property . . . . . . . . . . . . . . 47
7.10 Taxes . . . . . . . . . . . . . . . . . . . . . . 47
7.11 Federal Regulations . . . . . . . . . . . . . . . 48
7.12 ERISA . . . . . . . . . . . . . . . . . . . . . . 48
7.13 Investment Company Act; Other Regulations . . . . 49
7.14 Subsidiaries . . . . . . . . . . . . . . . . . . . 49
7.15 Purpose of Loans and Letters of Credit . . . . . . 49
7.16 Accuracy and Completeness of Information . . . . . 49
7.17 Environmental Matters . . . . . . . . . . . . . . 49
SECTION 8. CONDITIONS PRECEDENT
8.1 Conditions to Initial Extensions of Credit . . . . 50
8.2 Conditions to Each Extension of Credit . . . . . . 52
SECTION 9. AFFIRMATIVE COVENANTS
9.1 Financial Statements . . . . . . . . . . . . . . . 53
9.2 Certificates; Other Information . . . . . . . . . 53
9.3 Payment of Obligations . . . . . . . . . . . . . . 54
9.4 Conduct of Business and Maintenance of Existence . 55
9.5 Maintenance of Property; Insurance . . . . . . . . 55
9.6 Inspection of Property; Books and Records;
Discussions . . . . . . . . . . . . . . . . . 55
9.7 Notices . . . . . . . . . . . . . . . . . . . . . 55
9.8 Environmental Laws . . . . . . . . . . . . . . . . 56
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SECTION 10. NEGATIVE COVENANTS . . . . . . . . . . . . . . . 57
10.1 Financial Condition Covenants . . . . . . . . . . 57
10.2 Limitation on Indebtedness of Restricted
Subsidiaries . . . . . . . . . . . . . . . . . 57
10.3 Limitation on Liens . . . . . . . . . . . . . . . 58
10.4 Limitation on Fundamental Changes . . . . . . . . 60
10.5 Limitation on Sale of Assets . . . . . . . . . . . 60
10.6 Limitation on Dividends . . . . . . . . . . . . . 61
10.7 Limitation on Investments, Loans and Advances . . 62
10.8 Limitation on Optional Payments of Subordinated
Debt and Modifications of Subordination
Provisions . . . . . . . . . . . . . . . . . . 62
10.9 Limitation on Transactions with Affiliates . . . . 62
10.10 Limitation on Sales and Leasebacks . . . . . . . . 63
10.11 Limitation on Changes in Fiscal Year . . . . . . . 63
10.12 Limitation on Guarantee Obligations in respect
of Indebtedness of Subsidiaries other than
Restricted Subsidiaries . . . . . . . . . . . 63
10.13 Limitation on Subsidiaries other than Restricted
Subsidiaries . . . . . . . . . . . . . . . . . 63
10.14 Limitation on Guarantee Obligations . . . . . . . 63
SECTION 11. GUARANTEES . . . . . . . . . . . . . . . . . . . 63
11.1 Guarantees . . . . . . . . . . . . . . . . . . . . 63
11.2 No Subrogation, Contribution, Reimbursement or
Indemnity . . . . . . . . . . . . . . . . . . 65
11.3 Modification of Obligations . . . . . . . . . . . 66
11.4 Waiver . . . . . . . . . . . . . . . . . . . . . . 66
11.5 Reinstatement . . . . . . . . . . . . . . . . . . 67
11.6 Payment of Obligations . . . . . . . . . . . . . . 68
SECTION 12. EVENTS OF DEFAULT . . . . . . . . . . . . . . . 68
SECTION 13. THE ADMINISTRATIVE AGENT;
THE CO-AGENT AND THE ARRANGER . . . . . . 71
13.1 Appointment . . . . . . . . . . . . . . . . . . . 71
13.2 Delegation of Duties . . . . . . . . . . . . . . . 71
13.3 Exculpatory Provisions . . . . . . . . . . . . . . 71
13.4 Reliance by Administrative Agent . . . . . . . . . 72
13.5 Notice of Default . . . . . . . . . . . . . . . . 72
13.6 Non-Reliance on Administrative Agent and Other
Lenders . . . . . . . . . . . . . . . . . . . 73
13.7 Indemnification . . . . . . . . . . . . . . . . . 73
13.8 Administrative Agent in Its Individual Capacity . 74
13.9 Successor Administrative Agent . . . . . . . . . . 74
13.10 Co-Agent and Arranger . . . . . . . . . . . . . . 75
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SECTION 14. MISCELLANEOUS . . . . . . . . . . . . . . . . . 75
14.1 Amendments and Waivers Generally; Amendments to
Schedules II and III . . . . . . . . . . . . . 75
14.2 Notices . . . . . . . . . . . . . . . . . . . . . 77
14.3 No Waiver; Cumulative Remedies . . . . . . . . . . 78
14.4 Survival of Representations and Warranties . . . . 78
14.5 Payment of Expenses and Taxes . . . . . . . . . . 78
14.6 Successors and Assigns; Participations and
Assignments . . . . . . . . . . . . . . . . . 79
14.7 Adjustments; Set-off . . . . . . . . . . . . . . . 81
14.8 Power of Attorney . . . . . . . . . . . . . . . . 82
14.9 Judgement . . . . . . . . . . . . . . . . . . . . 83
14.10 Counterparts . . . . . . . . . . . . . . . . . . . 83
14.11 Severability . . . . . . . . . . . . . . . . . . . 83
14.12 Integration . . . . . . . . . . . . . . . . . . . 83
14.13 GOVERNING LAW . . . . . . . . . . . . . . . . . . 84
14.14 Submission To Jurisdiction; Waivers . . . . . . . 84
14.15 Acknowledgements . . . . . . . . . . . . . . . . . 84
14.16 WAIVERS OF JURY TRIAL . . . . . . . . . . . . . . 85
14.17 Confidentiality . . . . . . . . . . . . . . . . . 85
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SCHEDULES
Schedule I: Lenders and Commitments
Schedule II: Subsidiary Borrowers and Subsidiary
Guarantors
Schedule III: Swing Line Lenders and Issuing Banks
Schedule IV: Administrative Schedule
Schedule V: Description of Studer Transaction
Schedule VI: Material Debt Instruments
Schedule 7.14: Subsidiaries
Schedule 10.2: Existing Indebtedness and Liens
EXHIBITS
EXHIBIT A: Joinder Agreement
EXHIBIT B: Schedule Agreement
EXHIBIT C: Form of Borrowing Certificate
EXHIBIT D: Assignment and Acceptance
EXHIBIT E-1 Opinion of Jones, Day, Reavis & Pogue
EXHIBIT E-2 Opinion of General Counsel
EXHIBIT E-3 Opinions Relating to Foreign
Subsidiary Borrowers
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MULTI-CURRENCY, MULTI-OPTION CREDIT AGREEMENT, dated as
of September 30, 1994, among:
(i) HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED, a Delaware
corporation (the "Company");
(ii) the DOMESTIC SUBSIDIARY BORROWERS (as hereinafter
defined);
(iii) the FOREIGN SUBSIDIARY BORROWERS (as hereinafter
defined);
(iv) the SUBSIDIARY GUARANTORS (as hereinafter defined);
(v) the several banks and other financial institutions from
time to time parties to this Agreement (each, a "Lender"; and
collectively, the "Lenders");
(vi) CHEMICAL SECURITIES INC., as Arranger (the "Arranger");
(vii) NATIONSBANK OF NORTH CAROLINA, N.A., as Co-Agent (in
such capacity, the "Co-Agent"); and
(viii) CHEMICAL BANK, a New York banking corporation
("Chemical"), as administrative agent for the Lenders
hereunder (and its successors in such capacity, the
"Administrative Agent").
W I T N E S S E T H:
WHEREAS, the Company has requested the Lenders to make
available a credit facility pursuant to which (i) the Company and
the Subsidiary Borrowers (as hereinafter defined) may borrow
revolving credit loans and swing line loans at committed interest
rates, and short-term loans at interest rates determined by a
competitive bidding process to be conducted by the Company or a
Subsidiary Borrower and (ii) one or more Issuing Banks (as
hereinafter defined) will issue letters of credit for the account
of the Company or a Subsidiary Borrower, and each of the Lenders
will acquire a participating interest in each such letter of
credit;
WHEREAS, the Company has requested that the loans made,
and letters of credit issued, under this Agreement be denominated,
at the option of the Company or the relevant Subsidiary Borrower,
as the case may be, in United States Dollars or Available Foreign
Currencies (as hereinafter defined); and
WHEREAS, the Lenders are willing to make such credit
facility available;
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein contained, the parties hereto hereby agree
as follows:
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SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"ABR": for any day, a rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof: "Prime Rate" shall mean the rate of interest
per annum publicly announced from time to time by Chemical as
its prime rate in effect at its principal office in New York
City (the Prime Rate not being intended to be the lowest rate
of interest charged by Chemical in connection with extensions
of credit to debtors); "Base CD Rate" shall mean the sum of
(a) the product of (i) the Three-Month Secondary CD Rate and
(ii) a fraction, the numerator of which is one and the
denominator of which is one minus the C/D Reserve Percentage
and (b) the C/D Assessment Rate; "Three-Month Secondary CD
Rate" shall mean, for any day, the secondary market rate for
three-month certificates of deposit reported as being in
effect on such day (or, if such day shall not be a Business
Day, the next preceding Business Day) by the Board of
Governors of the Federal Reserve System (the "Board") through
the public information telephone line of the Federal Reserve
Bank of New York (which rate will, under the current practices
of the Board, be published in Federal Reserve Statistical
Release H.15(519) during the week following such day), or, if
such rate shall not be so reported on such day or such next
preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major
money center banks in New York City received at approximately
10:00 A.M., New York City time, on such day (or, if such day
shall not be a Business Day, on the next preceding Business
Day) by the Administrative Agent from three New York City
negotiable certificate of deposit dealers of recognized
standing selected by it; and "Federal Funds Effective Rate"
shall mean, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the
Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"ABR Loans": Loans in Dollars bearing interest based
upon the ABR.
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"Administrative Schedule": Schedule IV to this
Agreement, which contains interest rate definitions and
administrative information in respect of each Currency and
each Type of Loan.
"Affiliate": as to any Person, any other Person (other
than a Subsidiary) which, directly or indirectly, is in
control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a
Person means the power, directly or indirectly, either to (a)
vote 10% or more of the securities having ordinary voting
power for the election of directors of such Person or (b)
direct or cause the direction of the management and policies
of such Person, whether by contract or otherwise.
"Agreement": this Multi-Currency, Multi-Option Credit
Agreement, as amended, supplemented or otherwise modified from
time to time.
"Applicable Margin": for each day during each Interest
Period in respect of any Eurocurrency Loan, the margin per
annum set forth below opposite the EBITDA Ratio shown on the
last EBITDA Ratio Certificate delivered pursuant to subsection
9.2(c) prior to such day:
EBITDA Ratio Applicable Margin
Greater than or
equal to 6.5 to 1.0 .20%
Greater than or equal
to 5.5 to 1.0 but lower
than 6.5 to 1.0 .25%
Greater than or equal to
4.25 to 1.0 but lower than
5.5 to 1.0 .30%
Greater than or equal to
3.0 to 1.0 but lower than
4.25 to 1.0 .375%
Lower than 3.0 to 1.0 .50%
; provided, however, that, (i) in the event that no EBITDA
Ratio Certificate has been delivered for a fiscal quarter
prior to the last date on which it can be delivered without
violation of subsection 9.2(c), the Applicable Margin from
such date until such EBITDA Ratio Certificate is actually
delivered shall be that applicable when the EBITDA Ratio is
lower than 3.0 to 1.0 and (ii) in the event that the actual
EBITDA Ratio for any fiscal quarter is subsequently
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determined to be less than that set forth in the EBITDA Ratio
Certificate for such fiscal quarter, the Applicable Margin
shall be recalculated for the applicable period based upon
such actual EBITDA Ratio. Changes in the Applicable Margin,
if any, resulting from the operation of clause (ii) above
shall be given effect through adjustments in subsequent
payments of interest so as to give effect to such Applicable
Margin retroactively to the applicable period.
"Application": in respect of each Letter of Credit
issued by an Issuing Bank, an application, in such form as
such Issuing Bank may specify from time to time, requesting
issuance of such Letter of Credit.
"Assignee": as defined in subsection 14.6(c).
"Assignment and Acceptance": such Assignment and
Acceptance, substantially in the form of Exhibit D, executed
and delivered pursuant to subsection 14.6(c).
"Available Foreign Currencies": Deutsche Marks, Pounds
Sterling, Hong Kong Dollars, Singapore Dollars, Belgian
Francs, French Francs, Austrian Schillings, Danish Kroner,
Japanese Yen, Swiss Francs, and any other available and
freely-convertible foreign currency selected by the Company
and approved by the Administrative Agent in the manner
described in subsection 14.1(b).
"Borrowers": the collective reference to the Company and
the Subsidiary Borrowers.
"Borrowing Date": any Business Day on which a Loan is to
be made at the request of a Borrower under this Agreement.
"Business": as defined in subsection 7.17.
"Business Day": (a) when such term is used in respect of
a day on which a Loan in an Available Foreign Currency is to
be made, a payment is to be made in respect of such Loan or
any other dealing in such Available Foreign Currency is to be
carried out pursuant to this Agreement, such term shall mean
a
London Banking Day which is also a day on which banks are open
for general banking business in the city which is the
principal financial center of the country of such Available
Foreign Currency, (b) when such term is used to describe a day
on which a request is to be made to an Issuing Bank for
issuance of a Letter of Credit or on which a Letter of Credit
is to be issued, such term shall mean a day other than a
Saturday, Sunday or other day on which commercial banks in the
city in which such Issuing Bank's Issuing Office is located
and (c) when such term is used in any other context in this
Agreement, such term shall mean a day other than a Saturday,
Sunday or other day on which
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commercial banks in New York City are authorized or required
by law to close.
"Capital Stock": any and all shares, interests,
participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent
ownership interests in a Person (other than a corporation) and
any and all warrants or options to purchase any of the
foregoing.
"Cash-Equivalents": (a) securities with maturities of
one year or less from the date of acquisition issued or fully
guaranteed or insured by the United States Government or any
agency thereof; (b) marketable general obligations issued by
any state of the United States of America or any political
subdivision of any such state or any public instrumentality
thereof maturing within one year from the date of acquisition
thereof and, at the time of acquisition, having one of the two
highest credit ratings from either Standard & Poor's
Corporation or Moody's Investors Service, Inc.; (c)
certificates of deposit, time deposits, eurodollar time
deposits, overnight bank deposits, bankers' acceptances and
repurchase agreements having maturities of one year or less
from the date of acquisition issued, and money market deposit
accounts issued or offered by any Lender or by any commercial
bank organized under the laws of the United States of America
or any state thereof having combined capital and surplus of
not less than $100,000,000; and (d) commercial paper of an
issuer rated at least A-2 by Standard & Poor's Corporation or
P-2 by Moody's Investors Service, Inc., or carrying an
equivalent rating by a nationally recognized rating agency, if
both of the two named rating agencies cease publishing ratings
of investments, and, in either case, maturing within one year
from the date of acquisition.
"C/D Assessment Rate": for any day, the annual
assessment rate in effect on such day which is payable by a
member of the Bank Insurance Fund maintained by the Federal
Deposit Insurance Corporation (the "FDIC") classified as well-
capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within
the meaning of 12 C.F.R. 327.3(d) (or any successor
provision) to the FDIC (or any successor) for the FDIC's (or
such successor's) insuring time deposits at offices of such
institution in the United States.
"C/D Reserve Percentage": for any day, that percentage
(expressed as a decimal) which is in effect on such day, as
prescribed by the Board of Governors of the Federal Reserve
System (or any successor) (the "Board"), for determining the
maximum reserve requirement for a Depositary Institution (as
defined in Regulation D of the Board) in respect of new
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non-personal time deposits in Dollars having a maturity of 30
days or more.
"Change of Control": an event or series of events by
which (i) any "person" or "group" (as such terms are defined
in Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended), other than the Permitted Investor, is or
becomes the "beneficial owner" (as defined in Rules 13d-3 and
13d-5 under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all shares that any
such Person has the right to acquire without condition, other
than passage of time, whether such right is exercisable
immediately or only after the passage of time), directly or
indirectly, of more than 50% of the total voting power of the
then outstanding Voting Stock of the Company, (ii)(A) the
Company consolidates with or merges into another corporation
or conveys, transfers or leases all or substantially all of
its properties and assets (determined on a consolidated basis
for the Company and its Subsidiaries taken as a whole) to any
Person, or (B) any corporation consolidates with or merges
into the Company or a Subsidiary of the Company in a
transaction in which the outstanding Voting Stock of the
Company is changed into or exchanged for cash, securities or
other property, other than a transaction solely between the
Company and a Subsidiary of the Company or (iii) during any
period of two consecutive years, individuals who at the
beginning of such period constituted the Board of Directors of
the Company (together with any new directors whose election by
such Board of Directors or whose nomination for election by
the shareholders of the Company was approved by a vote of 66
2/3% of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved) cease for
any reason to constitute a majority of the Board of Directors
of the Company then in office; provided, however, that
notwithstanding anything to the contrary in this definition,
transfer of beneficial ownership of shares held by the
Permitted Investor upon the death of the Permitted Investor to
the heirs and devisees of the Permitted Investor shall not
constitute a Change of Control.
"Chemical": Chemical Bank.
"Closing Date": the date on or before October 31, 1994
on which the conditions precedent set forth in subsection 8.1
shall be satisfied.
"Code": the Internal Revenue Code of 1986, as amended
from time to time.
"Commercial Letter of Credit": as defined in subsection
5.1(b).
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"Commitment": as to any Lender, the obligation of such
Lender to make and/or acquire participating interests in Loans
and issue and/or acquire participating interests in Letters of
Credit hereunder in an aggregate Dollar Equivalent Amount at
any one time outstanding not to exceed the amount set forth
opposite such Lender's name on Schedule I, as such amount may
be changed from time to time in accordance with the provisions
of this Agreement.
"Commitment Percentage": as to any Lender at any time,
the percentage which such Lender's Commitment then constitutes
of the aggregate Commitments (or, at any time after the
Commitments shall have expired or terminated, the percentage
which the amount of such Lender's Exposure then outstanding
constitutes of the aggregate amount of the Exposure of all the
Lenders then outstanding).
"Commitment Period": the period from and including the
Closing Date to but not including the Termination Date or such
earlier date on which the Commitments shall terminate as
provided herein.
"Committed Rate Loan": as defined in subsection 2.1; a
Committed Rate Loan bearing interest based upon the ABR shall
be a "Committed Rate ABR Loan", and a Committed Rate Loan
bearing interest based upon the Eurocurrency Rate shall be a
"Committed Rate Eurocurrency Loan".
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company
within the meaning of Section 4001 of ERISA or is part of a
group which includes the Company and which is treated as a
single employer under Section 414(b), (c), (m) or (o) of the
Code.
"Company Obligations": the unpaid principal of and
interest on the Loans made to the Company, all Reimbursement
Obligations in respect of Letters of Credit issued for the
account of the Company and all other obligations and
liabilities of the Company to the Administrative Agent, any
Issuing Bank or any Lender (including, without limitation,
interest accruing after the maturity or earlier acceleration
of the Loans and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Company,
whether or not a claim for post-filing or post petition
interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, now
existing or hereafter incurred, which may arise under, out of,
or in connection with, this Agreement, the Loans, the Letters
of Credit, or any other document made, delivered or given in
connection therewith, in each case whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including,
26
<PAGE>
8
without limitation, all fees and disbursements of counsel to
the Administrative Agent, any Issuing Bank or any Lender) or
otherwise.
"Competitive Advance Loan": as defined in subsection
3.1.
"Consolidated Capitalization": at any date, the sum of
(i) shareholders' equity of the Company and (without
duplication) its consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP, and (ii)
Consolidated Total Debt; provided, that the Studer Preferred
Stock shall not be included in determining shareholders'
equity of the Company and its consolidated Subsidiaries.
"Consolidated EBITDA": for any period, Consolidated Net
Income for such period, plus the amount of taxes, interest,
depreciation and amortization deducted from earnings in
determining such Consolidated Net Income.
"Consolidated Interest Expense": for any period, the
amount of interest expense deducted from earnings of the
Company and its consolidated Subsidiaries in determining
Consolidated Net Income for such period in accordance with
GAAP.
"Consolidated Net Income": for any fiscal period, the
net income of the Company and its Subsidiaries, determined on
a consolidated basis in accordance with GAAP minus Studer
Dividends.
"Consolidated Senior Debt": at any date, Consolidated
Total Debt less the outstanding principal amount of
Subordinated Debt.
"Consolidated Total Assets": at any date, the aggregate
amount of the assets of the Company and its consolidated
Subsidiaries, determined on a consolidated basis in accordance
with GAAP; provided, that the Studer Assets shall not be
included in determining Consolidated Total Assets.
"Consolidated Total Debt": at any date, without
duplication, the aggregate of all Indebtedness (including the
current portion thereof) of the Company and its consolidated
Subsidiaries, determined on a consolidated basis in accordance
with GAAP; provided, that the obligations of the Company and
Studer in respect of the Studer L/C shall not be included in
determining Consolidated Total Debt.
"Contractual Obligation": as to any Person, any
provision of any security issued by such Person or of any
material agreement, instrument or other undertaking to which
<PAGE>
27
<PAGE>
9
such Person is a party or by which it or any of its property
is bound.
"Currencies": the collective reference to Dollars and
the Available Foreign Currencies.
"Default": any event or condition that upon notice, the
lapse of time, or both, would constitute an Event of Default.
"Dividend": the quarterly dividend of $0.04 per share of
Common Stock paid by the Company on August 15, 1994 to each
holder of record as of July 29, 1994.
"Dollar Equivalent Amount": with respect to the amount
of any Available Foreign Currency on any date, the equivalent
amount in Dollars of such amount of Available Foreign
Currency, as determined by the Administrative Agent using the
Exchange Rate.
"Dollars" and "$": dollars in lawful currency of the
United States of America.
"Domestic Subsidiary Borrower": each Subsidiary of the
Company which is organized under the laws of the District of
Columbia or a State of the United States and listed as a
Domestic Subsidiary Borrower on Schedule II.
"EBITDA Ratio": on any date, the ratio of Consolidated
EBITDA to Consolidated Interest Expense for the four
consecutive fiscal quarters of the Company most recently ended
prior to such date.
"EBITDA Ratio Certificate": as defined in subsection
9.2(c).
"Environmental Laws": any and all applicable material,
foreign, Federal, state, local or municipal laws, rules,
orders, regulations, statutes, ordinances, codes, decrees,
enforceable requirements of any Governmental Authority or
other Requirements of Law (including common law) regulating,
relating to or imposing liability or standards of conduct
concerning protection of human health or the environment, as
now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of
1974, as amended from time to time.
"Eurocurrency Loan": any Loan bearing interest based
upon a Eurocurrency Rate.
"Eurocurrency Rate": in respect of each Currency, the
rate determined as the Eurocurrency Rate for such Currency in
the manner set forth in the Administrative Schedule.
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<PAGE> 10
"Event of Default": any of the events specified in
Section 12, provided that any requirement for the giving of
notice, the lapse of time, or both, or any other condition,
has been satisfied.
"Exchange Rate": with respect to any Available Foreign
Currency on any date, the rate at which such Available Foreign
Currency may be exchanged into Dollars, as set forth on such
date on the relevant Reuters currency page at or about 11:00
A.M. London time on such date. In the event that such rate
does not appear on any Reuters currency page, the "Exchange
Rate" with respect to such Available Foreign Currency shall be
determined by reference to such other publicly available
service for displaying exchange rates as may be agreed upon by
the Administrative Agent and the Company or, in the absence of
such agreement, such "Exchange Rate" shall instead be the
Administrative Agent's spot rate of exchange in the interbank
market where its foreign currency exchange operations in
respect of such Available Foreign Currency are then being
conducted, at or about 10:00 A.M., local time, at such date
for the purchase of Dollars with such Available Foreign
Currency, for delivery two Business Days later; provided, that
if at the time of any such determination, no such spot rate
can reasonably be quoted, the Administrative Agent may use any
reasonable method as it deems applicable to determine such
rate, and such determination shall be conclusive absent
manifest error.
"Exposure": at any date, the aggregate Dollar Equivalent
Amount of (a) all Loans then outstanding and (b) all L/C
Obligations then outstanding.
"Extensions of Credit": the collective reference to
Loans made and Letters of Credit issued under this Agreement.
"Facility Fee Rate": for each day during each fiscal
quarter of the Company, the rate per annum set forth below
opposite the EBITDA Ratio shown on the EBITDA Ratio
Certificate required pursuant to subsection 9.2(c) to be
delivered for the immediately preceding fiscal quarter:
EBITDA Ratio Facility Fee Rate
Greater than or
equal to 6.5 to 1.0 .10%
Greater than or equal
to 5.5 to 1.0 but lower
than 6.5 to 1.0 .15%
Greater than or equal to
4.25 to 1.0 but lower than
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<PAGE>
11
5.5 to 1.0 .20%
Greater than or equal to
3.0 to 1.0 but lower than
4.25 to 1.0 .25%
Lower than 3.0 to 1.0 .375%
; provided, however, that, (i) in the event that no EBITDA
Ratio Certificate has been delivered for a fiscal quarter
prior to the last day of the next succeeding fiscal quarter,
the Facility Fee Rate during such next succeeding fiscal
quarter shall be that applicable when the EBITDA Ratio is
lower than 3.0 to 1.0 and (ii) in the event that the actual
EBITDA Ratio for any fiscal quarter is subsequently determined
to be less than that set forth in the EBITDA Ratio Certificate
for such fiscal quarter, the Facility Fee Rate during the
fiscal quarter next succeeding the fiscal quarter in respect
of which such EBITDA Ratio has been determined shall be
determined based upon such actual EBITDA Ratio. Changes in
the Facility Fee Rate, if any, resulting from the operation of
any of clauses (i) or (ii) above for any fiscal quarter shall
be given effect through adjustments in subsequent payments of
facility fee so as to give effect to such Facility Fee Rate
retroactively to the beginning of such fiscal quarter.
"Fee Letter": the letter agreement, dated August 16,
1994, between the Company and Chemical.
"Financing Lease": any lease of property, real or
personal, the obligations of the lessee in respect of which
are required in accordance with GAAP to be capitalized on a
balance sheet of the lessee.
"Foreign Subsidiary Borrower": each Subsidiary of the
Company which is organized under the laws of a jurisdiction
other than the District of Columbia or a State of the United
States and listed as a Foreign Subsidiary Borrower on Schedule
II.
"Foreign Subsidiary Obligations": the unpaid principal of
and interest on the Loans made to the Foreign Subsidiary
Borrowers, all Reimbursement Obligations in respect of Letters
of Credit issued for the account of the Foreign Subsidiary
Borrowers and all other obligations and liabilities of the
Foreign Subsidiary Borrowers to the Administrative Agent, any
Issuing Bank or any Lender (including, without limitation,
interest accruing after the maturity or earlier acceleration
of such Loans and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Foreign
Subsidiary Borrower, whether or not a claim for post-filing or
post petition
30
<PAGE> 12
interest is allowed in such proceeding), whether direct or
indirect, absolute or contingent, due or to become due, now
existing or hereafter incurred, which may arise under, out of,
or in connection with, this Agreement, the Loans, the Letters
of Credit, or any other document made, delivered or given in
connection therewith, in each case whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation,
all fees and disbursements of counsel to the Administrative
Agent, any Issuing Bank or any Lender) or otherwise.
"Funding Office": for each Type of Loan and each
Currency, the Funding Office set forth in respect thereof in
the Administrative Schedule.
"Funding Time": for each Type of Loan and each Currency,
the Funding Time set forth in respect thereof in the
Administrative Schedule.
"GAAP": generally accepted accounting principles in the
United States of America in effect from time to time.
"Governmental Authority": any nation or government, any
state or other political subdivision thereof and any entity
exercising applicable executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Guarantee Obligation": as to any Person (the
"guaranteeing person"), any obligation of (a) the guaranteeing
person or (b) another Person (including, without limitation,
any bank under any letter of credit) to induce the creation of
which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness,
leases, dividends or other obligations (the "primary
obligations") of any other third Person (the "primary
obligor") in any manner, whether directly or indirectly,
including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to
purchase any such primary obligation or any property
constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any
such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain
the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation
of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold
harmless the owner of any such primary obligation against loss
in respect thereof; provided, however, that the term Guarantee
31
<PAGE>
13
Obligation shall not include (x) endorsements of instruments
for deposit or collection in the ordinary course of business
or (y) obligations of the Company or any of its Subsidiaries
under arrangements entered into in the ordinary course of
business whereby the Company or such Subsidiary sells
inventory to other Persons under agreements obligating the
Company or such Subsidiary to repurchase such inventory, at a
price not exceeding the original sale price, upon the
occurrence of certain specified events. The amount of any
Guarantee Obligation of any guaranteeing person shall be
deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of
which such Guarantee Obligation is made and (b) the maximum
amount for which such guaranteeing person may be liable
pursuant to the terms of the instrument embodying such
Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the
amount of such Guarantee Obligation shall be such guaranteeing
person's maximum reasonably anticipated liability in respect
thereof as determined by the Company in good faith.
"Guarantor": each Subsidiary Guarantor and the Company
and each Subsidiary Borrower in its capacity as a guarantor
pursuant to Section 11 of this Agreement.
"Implied Senior Long-Term Debt Rating": in the case
where the Company has no long-term, senior, unsecured, non-
credit enhanced debt that is the subject of a current rating
by either Standard & Poor's Ratings Group or Moody's Investors
Service, Inc., then the Company's implied senior, unsecured,
long-term debt rating, as determined and made publicly-
available from time to time by Standard & Poor's Ratings Group
or Moody's Investors Service, Inc.
"Indebtedness": of any Person at any date, all
indebtedness or obligations of such Person (other than current
trade liabilities incurred in the ordinary course of business
and payable in accordance with customary practices), as
reflected on the balance sheet of such Person prepared in
accordance with GAAP.
"Insolvency": with respect to any Multiemployer Plan,
the condition that such Plan is insolvent within the meaning
of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Payment Date": (a) as to any ABR Loan, the
last day of each March, June, September and December to occur
while such Loan is outstanding, (b) as to any Committed Rate
Eurocurrency Loan having an Interest Period of three months or
less, the last day of such Interest
32
<PAGE> 14
Period, (c) as to any Committed Rate Eurocurrency Loan having
an Interest Period longer than three months, each day which is
three months after the first day of such Interest Period and
the last day of such Interest Period, (d) as to any Swing Line
Loan, the last Business Day of each calendar month during
which such Swing Line Loan is outstanding and the date of
repayment thereof, and (e) as to any Competitive Advance Loan,
the date or dates agreed upon by the relevant Borrower and
Lender at the time the terms of such Competitive Advance Loan
are determined as provided in Section 3.
"Interest Period": with respect to any Committed Rate
Eurocurrency Loan:
(i) initially, the period commencing on the
borrowing, continuation or conversion date, as the case
may be, with respect to such Eurocurrency Loan and ending
one, two, three or six months thereafter, as selected by
the relevant Borrower in its Notice of Borrowing, Notice
of Continuation or Notice of Conversion, as the case may
be, given with respect thereto; and
(ii) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable
to such Eurocurrency Loan and ending one, two, three or
six months thereafter, as selected by the relevant
Borrower by a Notice of Continuation with respect
thereto;
provided that, all of the foregoing provisions relating to
Interest Periods are subject to the following:
(1) if any Interest Period would otherwise end on
a day that is not a Business Day, such Interest Period
shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry
such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately
preceding Business Day;
(2) any Interest Period that would otherwise
extend beyond the Termination Date shall end on the
Termination Date; and
(3) any Interest Period that begins on the last
Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on
the last Business Day of a calendar month.
"Investment Grade": the Company shall be deemed to be
Investment Grade when its long-term, senior, unsecured, non-
33
<PAGE>
15
credit enhanced debt is rated or, when the Company has no
long-term, senior, unsecured, non-credit enhanced debt that is
the subject of a rating, then its Implied Senior Long-Term
Debt Rating is, at least BBB- by Standard & Poor's Ratings
Group or at least Baa3 by Moody's Investors Service, Inc.
"Issuing Bank": each Lender listed as an Issuing Bank in
Schedule III.
"Issuing Office": in respect of each Issuing Bank, the
Issuing Office set forth for such Issuing Bank in Schedule
III.
"Joinder Agreement": each Joinder Agreement,
substantially in the form of Exhibit A, from time to time
executed and delivered hereunder pursuant to subsection 14.1
(b).
"L/C Obligations": at any time, an amount equal to the
sum of (a) the aggregate then undrawn and unexpired amount of
the then outstanding Letters of Credit and (b) the aggregate
amount of drawings under Letters of Credit which have not then
been reimbursed pursuant to subsection 5.5(a).
"L/C Participant": in respect of each Letter of Credit,
each Lender (other than the Issuing Bank in respect of such
Letter of Credit) in its capacity as the holder of a
participating interest in such Letter of Credit.
"Letter of Credit": as defined in subsection 5.1.
"Lien": any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other),
charge or other security interest or any preference, priority
or other security agreement or preferential arrangement of any
kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect
as any of the foregoing).
"Loan": any Committed Rate Loan, Competitive Advance
Loan or Swing Line Loan made by any Lender pursuant to this
Agreement.
"Loan Documents": this Agreement and each Joinder
Agreement.
"Loan Parties": the Borrowers and the Subsidiary
Guarantors.
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<PAGE> 16
"London Banking Day": any day on which banks in London
are open for general banking business, including dealings in
foreign currency and exchange.
"Majority Lenders": at any time, Lenders the Commitment
Percentages of which aggregate more than 50%.
"Material Adverse Effect": a material adverse effect on
(a) the business, operations, property or condition (financial
or otherwise) of the Company and its Subsidiaries taken as a
whole or (b) the validity or enforceability of this or any of
the other Loan Documents or the rights or remedies of the
Administrative Agent or the Lenders hereunder or thereunder.
"Material Debt Instrument": those agreements and other
instruments of Indebtedness listed on Schedule VI, which list
shall include any such instrument under which any Loan Party
is an obligor and under which the outstanding amount and/or
available commitment to extend credit exceeds $10,000,000.
"Materials of Environmental Concern": any gasoline or
petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances,
materials or wastes, defined or regulated as such in or under
any Environmental Law, including, without limitation,
asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
"Multiemployer Plan": a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA.
"Non-Excluded Taxes": as defined in subsection 6.6.
"Notice of Borrowing": with respect to a Loan of any
Type in any Currency, a notice from the Borrower in respect of
such Loan, containing the information in respect of such Loan
and delivered to the Person, in the manner and by the time
specified for a Notice of Borrowing in respect of such
Currency and such Type of Loan in the Administrative Schedule.
"Notice of Competitive Advance Loan": with respect to
each Competitive Advance Loan in any Currency, a notice from
the Lender in respect of such Loan, containing the information
in respect of such Loan and delivered to the Person, in the
manner and by the time specified for a Notice of Competitive
Advance Loan in the Administrative Schedule.
"Notice of Continuation": with respect to a Committed
Rate Loan in any Currency, a notice from the Borrower in
respect of such Loan, containing the information in respect of
such Loan and delivered to the Person, in the manner and
35
<PAGE>
17
by the time specified for a Notice of Continuation in respect
of such Currency in the Administrative Schedule.
"Notice of Conversion": with respect to a Committed Rate
Loan in Dollars which a Borrower wishes to convert from a
Eurocurrency Loan to an ABR Loan, or from an ABR Loan to a
Eurocurrency Loan, as the case may be, a notice from such
Borrower setting forth the amount of such Loan to be
converted, the date of such conversion (which, in the case of
conversions of Eurocurrency Loans to ABR Loans, shall be the
last day of an Interest Period applicable to such Eurocurrency
Loans) and, in the case of conversions of ABR Loans to
Eurocurrency Loans, the length of the initial Interest Period
applicable thereto. Each Notice of Conversion shall be
delivered to the Administrative Agent at its address set forth
in subsection 14.2 and shall be delivered before 11:00 A.M.,
New York City time, one Business Day before the requested
conversion in the case of conversions to ABR Loans, and before
11:00 A.M., New York City time, three Business Days before the
requested conversion in the case of conversions to
Eurocurrency Loans.
"Notice of Swing Line Outstandings": with respect to
each Swing Line Lender, a notice from such Swing Line Lender
containing the information, delivered to the Person, in the
manner and by the time, specified for a Notice of Swing Line
Outstandings in the Administrative Schedule.
"Notice of Swing Line Refunding": with respect to each
Swing Line Lender, a notice from such Swing Line Lender
containing the information, delivered to the Person, in the
manner and by the time, specified for a Notice of Swing Line
Refunding in the Administrative Schedule.
"Obligations": the collective reference to the Company
Obligations and the Subsidiary Obligations.
"Participant": as defined in subsection 14.6(b).
"Payment Office": for each Type of Loan and each
Currency, the Payment Office set forth in respect thereof in
the Administrative Schedule.
"Payment Time": for each Type of Loan and each Currency,
the Payment Time set forth in respect thereof in the
Administrative Schedule.
"PBGC": the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA.
"Permitted Business Acquisitions": acquisitions of all or
substantially all of the assets of, or all of the shares or
other equity interests in, a Person or division or line of
business of a Person engaged in the same business as the
36
<PAGE> 18
Company and its Subsidiaries or in a related business if
immediately after giving effect thereto: (i) no Default or
Event of Default shall have occurred and be continuing after
giving effect to such acquisition, (ii) all transactions
related thereto shall be consummated in accordance with
applicable laws, (iii) 75% of the outstanding capital stock or
other ownership interests of any acquired or newly formed
corporation or other entity must be owned directly by the
Company or a Restricted Subsidiary and such corporation or
entity shall become a Restricted Subsidiary and a Subsidiary
Guarantor hereunder, (iv) in the case of an acquisition of
Capital Stock, the board of directors (or equivalent governing
body) of the target company shall have approved such
transaction, and (v) the Company shall be in compliance, on a
pro forma basis, with the covenants contained in subsection
10.1 recomputed as at the last day of the most recently ended
fiscal quarter of the Company, and the Company shall have
delivered to the Administrative Agent an officers' certificate
to such effect, together with all relevant financial
information for such acquired corporation, entity or assets.
"Permitted Investor": Sidney Harman, Chairman of the
Board of Directors and Chief Executive Officer of the Company
on the date hereof.
"Person": an individual, partnership, corporation,
business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other
entity of whatever nature.
"Plan": at a particular time, any employee benefit plan
which is covered by ERISA and in respect of which the Company
or a Commonly Controlled Entity is (or, if such plan were
terminated at such time, would under Section 4069 of ERISA be
deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Properties": as defined in subsection 7.17.
"Quotation Day": in respect of the determination of the
Eurocurrency Rate for any Interest Period for any Currency,
the day on which quotations would ordinarily be given by prime
banks in the London interbank market (or, if such Currency is
Sterling, in the Paris interbank market) for deposits in such
Currency for delivery on the first day of such Interest
Period; provided, that if quotations would ordinarily be given
on more than one date, the Quotation Day for such Interest
Period shall be the last of such dates. On the date hereof,
the Quotation Day in respect of any Interest Period for any
Currency is customarily the last day prior to the beginning of
such Interest Period which is (i) at least two London Banking
Days prior to the beginning of such Interest Period and (ii)
a
day on which banks are open
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<PAGE> 19
for general banking business in the city which is the
principal financial center of the country of such Currency
(and, in the case of Sterling, in Paris).
"Reference Lenders": Chemical Bank, Societe Generale and
NationsBank.
"Register": as defined in subsection 14.6(d).
"Regulation U": Regulation U of the Board of Governors
of the Federal Reserve System as in effect from time to time.
"Reimbursement Obligation": in respect of each Letter of
Credit, the obligation of the account party thereunder to
reimburse the Issuing Bank for all drawings made thereunder in
accordance with Section 5 and the Application related to such
Letter of Credit.
"Reorganization": with respect to any Multiemployer
Plan, the condition that such plan is in reorganization within
the meaning of Section 4241 of ERISA.
"Reportable Event": any of the events set forth in
Section 4043(b) of ERISA, other than those events as to which
the thirty day notice period is waived under subsections .13,
.14, .16, .18, .19 or .20 of PBGC Reg. 2615.
"Requirement of Law": as to any Person, the Certificate
of Incorporation and By-Laws or other organizational or
governing documents of such Person, and any material law,
treaty, rule or regulation or determination of an arbitrator
or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is
subject.
"Responsible Officer": the chief executive officer, the
president, the chief financial officer or the vice president
for financial or legal affairs of the Company.
"Restricted Subsidiary": any Subsidiary listed in
Schedule II. Each Restricted Subsidiary which is organized
under the laws of any jurisdiction in the United States shall
be a Subsidiary Borrower or a Subsidiary Guarantor.
"Sale and Lease-Back Transaction": as defined in
subsection 10.10.
"Schedule Amendment": each Schedule Amendment,
substantially in the form of Exhibit B, executed and delivered
pursuant to subsection 14.1.
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"Single Employer Plan": any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Standby Letter of Credit": as defined in subsection
5.1(b).
"Studer": Studer Professional Audio AG, a Subsidiary
corporation organized under the laws of Switzerland.
"Studer Assets": the investment assets of Studer
acquired with the proceeds of the Studer Preferred Stock as a
part of the Studer Transaction.
"Studer Dividend": any dividend paid to holders of
Studer Preferred Stock.
"Studer Income": the income to be earned by Studer from
the Studer Assets.
"Studer L/C": the letter of credit to be issued for the
account of Studer to back obligations to pay dividends and
redemption price in respect of the Studer Preferred Stock as
a
part of the Studer Transaction.
"Studer Preferred Stock: the preferred stock to be
issued by Studer as a part of the Studer Transaction.
"Studer Transaction": the transaction or series of
transactions described in Schedule V.
"Subordinated Debt": (a) Indebtedness of the Company
under its 11.20% Senior Subordinated Notes Due December 1,
1998, (b) Indebtedness of the Company under its 12% Senior
Subordinated Notes Due August 1, 2002 and (c) any other
unsecured Indebtedness of the Company no part of the principal
of which is required to be paid (whether by way of mandatory
sinking fund, mandatory redemption or mandatory prepayment or
otherwise) prior to the Termination Date, and the payment of
the principal of and interest on which and any other
obligations of the Company in respect thereof is subordinated
to the prior payment in full of the principal of and interest
(including post-petition interest) on the Loans and all other
Obligations hereunder on terms and conditions that are (i) no
less favorable to the Lenders (as reasonably determined by the
Majority Lenders) than those applicable to the Indebtedness
described in clause (b) above or (ii) otherwise personally
acceptable to the Majority Lenders.
"Subsidiary": as to any Person, a corporation,
partnership or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only
by reason of the happening of a contingency)
39
<PAGE>
21
to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are
at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more
intermediaries, or both, by such Person. Unless otherwise
qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Company.
"Subsidiary Borrower": each Subsidiary of the Company
listed as a Subsidiary Borrower in Schedule II.
"Subsidiary Guarantor": each Subsidiary of the Company
listed as a Subsidiary Guarantor in Schedule II.
"Subsidiary Obligations": the unpaid principal of and
interest on the Loans made to the Subsidiary Borrowers, all
Reimbursement Obligations in respect of Letters of Credit
issued for the account of the Subsidiary Borrowers and all
other obligations and liabilities of the Subsidiary Borrowers
to the Administrative Agent, any Issuing Bank or any Lender
(including, without limitation, interest accruing after the
maturity or earlier acceleration of the Loans and interest
accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like
proceeding, relating to any Subsidiary Borrower, whether or
not a claim for post-filing or post petition interest is
allowed in such proceeding), whether direct or indirect,
absolute or contingent, due or to become due, now existing or
hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, the Loans, the Letters of
Credit, or any other document made, delivered or given in
connection therewith, in each case whether on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation,
all fees and disbursements of counsel to the Administrative
Agent, any Issuing Bank or any Lender) or otherwise.
"Swing Line Currency": in respect of any Borrower, the
Currency set forth for such Borrower in Schedule III.
"Swing Line Lender": in respect of any Borrower and any
Currency, each Lender listed as a Swing Line Lender in respect
of such Borrower and Currency in Schedule III.
"Swing Line Loan": as defined in subsection 4.1.
"Swing Line Rate": in respect of each Swing Line
Currency, the interest rate per annum set forth for such Swing
Line Currency in Schedule III.
"Termination Date": September 30, 1999.
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"Tranche": the collective reference to Committed Rate
Eurocurrency Loans in any Currency the then current Interest
Periods with respect to all of which begin on the same date
and end on the same later date (whether or not such Loans
shall originally have been made on the same day).
"Transferee": as defined in subsection 14.6(f).
"Type": in respect of any Loan, its character as a
Committed Rate Loan, Competitive Advance Loan or Swing Line
Loan, as the case may be.
"Uniform Customs": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, as the same may be amended,
supplemented or otherwise modified from time to time.
"Value": with respect to a Sale and Lease-Back
Transaction, as of any particular time, the amount equal to
the greater of (i) the net proceeds of the sale or transfer of
the property leased pursuant to such Sale and Lease-Back
Transaction or (ii) the fair market value of such property at
the time of entering into such Sale and Lease-Back
Transaction, in either case, divided first by the number of
full years of the term of the lease and then multiplied by the
number of full years of such term remaining at the time of
determination, without regard to any renewal or extension op-
tions contained in the lease.
"Voting Stock": stock of the class or classes pursuant
to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of
the Board of Directors of the Company (irrespective of whether
or not at the time stock of any other class or classes shall
have or might have voting power by reason of the happening of
any contingency).
1.2 Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto.
(b) As used herein and in any certificate or other
document made or delivered pursuant hereto, accounting terms
relating to the Company and its Subsidiaries not defined in
subsection 1.1 and accounting terms partly defined in subsection
1.1, to the extent not defined, shall have the respective meanings
given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to
this Agreement as a whole and not to any particular provision of
this Agreement, and Section, subsection, Schedule and Exhibit
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<PAGE> 23
references are to this Agreement unless otherwise specified.
References to Schedules to this Agreement are references to such
Schedules as the same may from time to time be amended or otherwise
modified in accordance with the terms hereof.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such
terms.
SECTION 2. THE COMMITTED RATE LOANS
2.1 Committed Rate Loans. (a) Subject to the terms
and conditions hereof, each Lender severally agrees to make loans
on a revolving credit basis ("Committed Rate Loans") to any
Borrower from time to time during the Commitment Period; provided,
that no Committed Rate Loan shall be made if, after giving effect
to the making of such Loan and the simultaneous application of the
proceeds thereof, the amount of the Exposure would exceed the
aggregate amount of the Commitments. During the Commitment Period
the Borrowers may use the Commitments by borrowing, prepaying the
Committed Rate Loans in whole or in part, and reborrowing, all in
accordance with the terms and conditions hereof.
(b) The Committed Rate Loans may be made in Dollars or
any Available Foreign Currency and may from time to time be (i)
Committed Rate Eurocurrency Loans, (ii) in the case of Committed
Rate Loans in Dollars only, Committed Rate ABR Loans or (iii) a
combination thereof, as determined by the relevant Borrower and set
forth in the Notice of Borrowing or Notice of Conversion with
respect thereto; provided, that no Committed Rate Eurocurrency Loan
shall be made after the day that is one month prior to the
Termination Date.
2.2 Procedure for Committed Rate Loan Borrowing. Any
Borrower may request the Lenders to make Committed Rate Loans on
any Business Day during the Commitment Period by delivering a
Notice of Borrowing. Each borrowing of Committed Rate Loans shall
be in an amount equal to (a) in the case of ABR Loans, $1,000,000
or a whole multiple thereof (or, if the then aggregate undrawn
amount of the Commitments is less than $1,000,000, such lesser
amount) and (b) in the case of Eurocurrency Loans, (i) if in
Dollars, $2,000,000 or increments of $500,000 thereafter, and (ii)
if in any Available Foreign Currency, an amount in such Available
Foreign Currency of which the Dollar Equivalent Amount is at least
$2,000,000. Upon receipt of any such Notice of Borrowing from a
Borrower, the Administrative Agent shall promptly notify each
Lender thereof. Subject to the terms and conditions hereof, each
Lender will make the amount of its pro rata share of each such
borrowing available to the Administrative Agent for the account of
such Borrower at the Funding Office, and at or prior to the Funding
Time, for the Currency of such Loan in funds immediately available
to the Administrative Agent. Such
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24
borrowing will then be made available to such Borrower at the
Funding Office, in like funds as received by the Administrative
Agent.
2.3 Repayment of Committed Rate Loans; Evidence of Debt.
(a) Each Borrower hereby unconditionally promises to pay to the
Administrative Agent for the account of each Lender on the
Termination Date (or such earlier date on which the Loans become
due and payable pursuant to Section 12), the then unpaid principal
amount of each Committed Rate Loan made by such Lender. Each
Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Committed Rate Loans made to such Borrower
from time to time outstanding from the date hereof until payment in
full thereof at the rates per annum, and on the dates, set forth in
subsection 2.8.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of
each Borrower to such Lender resulting from each Committed Rate
Loan of such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register
pursuant to subsection 14.6(d), and a subaccount therein for each
Lender, in which shall be recorded (i) the amount of each Committed
Rate Loan made hereunder and each Interest Period applicable
thereto, (ii) the amount of any principal or interest due and
payable or to become due and payable from each Borrower to each
Lender under Committed Rate Loans and (iii) the amount of any sum
received by the Administrative Agent from each Borrower in respect
of Committed Rate Loans, and the amount of each Lender's share
thereof.
(d) The entries made in the Register and the accounts of
each Lender maintained pursuant to subsection 2.3(b) shall, to the
extent permitted by applicable law, be prima facie evidence of the
existence and amounts of the obligations of each Borrower therein
recorded; provided, however, that the failure of any Lender or the
Administrative Agent to maintain the Register or any such account,
or any error therein, shall not in any manner affect the obligation
of each Borrower to repay (with applicable interest) the Committed
Rate Loans made to such Borrower by such Lender in accordance with
the terms of this Agreement.
2.4 Termination or Reduction of Commitments. The
Company shall have the right, upon not less than five Business
Days' notice to the Administrative Agent, to terminate the
Commitments or, from time to time, to reduce the amount of the
Commitments. Any such reduction shall be in an amount equal to
$5,000,000 or a whole multiple thereof and shall reduce permanently
the Commitments then in effect.
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2.5 Optional Prepayments. Any Borrower may, at any time
and from time to time, prepay the Committed Rate Loans made to such
Borrower, in whole or in part, without premium or penalty, upon at
least four Business Days' irrevocable notice to the Administrative
Agent, specifying the date and amount of prepayment, the Currency
of the Committed Rate Loans to be prepaid and whether the
prepayment is of Eurocurrency Loans, ABR Loans (in the case of
Committed Rate Loans in Dollars) or a combination thereof, and, if
of a combination thereof, the amount allocable to each. Upon
receipt of any such notice the Administrative Agent shall promptly
notify each Lender thereof. If any such notice is given, the
amount specified in such notice shall be due and payable on the
date specified therein, together with any amounts payable pursuant
to subsection 6.7. Partial prepayments shall be in an aggregate
principal amount of $1,000,000 or a whole multiple thereof.
2.6 Conversion and Continuation Options. (a) By giving
a Notice of Conversion, any Borrower may elect from time to time
(i) to convert such Borrower's Eurocurrency Loans in Dollars to ABR
Loans or (ii) to convert such Borrower's ABR Loans to Eurocurrency
Loans in Dollars; provided, that any such conversion of
Eurocurrency Loans may only be made on the last day of an Interest
Period with respect thereto. Upon receipt of any Notice of
Conversion the Administrative Agent shall promptly notify each
Lender thereof. All or any part of Eurocurrency Loans outstanding
in Dollars or ABR Loans may be converted as provided herein,
provided that (i) no ABR Loan may be converted into a Eurocurrency
Loan when any Event of Default has occurred and is continuing and
the Administrative Agent has or the Majority Lenders have
determined that such a conversion is not appropriate and (ii) no
ABR Loan may be converted into a Eurocurrency Loan after the date
that is one month prior to the Termination Date.
(b) By giving a Notice of Continuation, any Borrower may
continue any of such Borrower's Eurocurrency Loans as Eurocurrency
Loans in the same Currency for additional Interest Periods.
(c) Any Borrower may convert Committed Rate Loans
outstanding in one Currency to Committed Rate Loans of a different
Currency by repaying such Loans in the first Currency and borrowing
Loans of such different Currency in accordance with the applicable
provisions of this Agreement.
(d) If any Borrower shall fail to timely give a Notice
of Continuation or a Notice of Conversion in respect of any of such
Borrower's Eurocurrency Loans with respect to which an Interest
Period is expiring, such Eurocurrency Loans shall become due and
payable on the last day of such expiring Interest Period; provided,
that such Borrower may, in accordance with and subject to the terms
and conditions of this Agreement refinance such
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maturing Eurocurrency Loans on such maturity date with Swing Line
Loans or Competitive Advance Loans.
2.7 Minimum Amounts of Tranches. All borrowings,
conversions and continuations of Committed Rate Loans and all
selections of Interest Periods shall be in such amounts and be made
pursuant to such elections so that, after giving effect thereto,
the aggregate principal amount of the Loans comprising (i) each
Tranche in Dollars shall be not less than $2,000,000 and (ii) each
Tranche in any Available Foreign Currency shall be not less than
the Dollar Equivalent Amount in such Currency of $2,000,000.
2.8 Interest Rates and Payment Dates for Committed Rate
Loans. (a) Each Committed Rate Eurocurrency Loan shall bear
interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurocurrency Rate for such
Interest Period plus the Applicable Margin.
(b) Each Committed Rate ABR Loan shall bear interest at
a rate per annum equal to the ABR.
(c) If all or a portion of (i) the principal amount of
any Committed Rate Loan or (ii) any interest payable thereon shall
not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum which is (x) in the case of overdue principal,
the rate that would otherwise be applicable thereto pursuant to the
foregoing provisions of this subsection plus 2% or (y) in the case
of overdue interest, the rate described in paragraph (b) of this
subsection plus 2%, in each case from the date of such non-payment
until such amount is paid in full (as well after as before
judgment).
(d) Interest on Committed Rate Loans shall be payable in
arrears on each Interest Payment Date; provided, that interest
accruing pursuant to paragraph (c) of this subsection shall be
payable from time to time on demand.
2.9 Inability to Determine Interest Rate. If on or
prior to the Quotation Day for any Interest Period in respect of
any Eurocurrency Loan in any Currency:
(a) the Administrative Agent shall have determined
(which determination shall be conclusive absent manifest
error) that, by reason of circumstances affecting the relevant
market generally, adequate and reasonable means do not exist
for ascertaining the Eurocurrency Rate for such affected
Currency or such affected Interest Period, or
(b) the Administrative Agent shall have received notice
from Lenders having Commitments comprising at least 25% of the
aggregate amount of the Commitments that the Eurocurrency Rate
determined or to be determined for such
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<PAGE> 27
affected Interest Period will not adequately and fairly
reflect the cost to such Lenders (as conclusively certified by
such Lenders) of making or maintaining their affected
Committed Rate Loans during such affected Interest Period,
the Administrative Agent shall give telecopy or telephonic notice
thereof to the Company and the Lenders as soon as practicable
thereafter. If such notice is given (x) any Eurocurrency Loans
requested to be made in such affected Currency on the first day of
such affected Interest Period shall be made as ABR Loans in Dollars
in an Equivalent Amount, (y) any Committed Rate Loans that were to
have been converted on the first day of such affected Interest
Period from ABR Loans, to Eurocurrency Loans in such affected
Currency, shall be continued as ABR Loans and (z) any Eurocurrency
Loans in such affected Currency that were to have been continued as
such shall be converted, on the first day of such Interest Period,
to ABR Loans in Dollars in an Equivalent Amount. Until such notice
has been withdrawn by the Administrative Agent, no further
Eurocurrency Loans in such affected Currency shall be made or
continued as such.
SECTION 3. THE COMPETITIVE ADVANCE LOANS
3.1 Competitive Advance Loans. (a) Subject to the
terms and conditions hereof, any Borrower may, from time to time
during the Commitment Period, request one or more Lenders to offer
bids, and any such Lender may, in its sole discretion, offer such
bids, to make competitive advance loans ("Competitive Advance
Loans") to such Borrower on the terms and conditions set forth in
such bids. Each Competitive Advance Loan shall bear interest at
the rates, payable on the dates, and shall mature on the date,
agreed between such Borrower and Lender at the time such
Competitive Advance Loan is made; provided, that (i) each
Competitive Advance Loan shall mature not earlier than 1 day and
not later than 180 days, after the date such Competitive Advance
Loan is made and (ii) no Competitive Advance Loan shall mature
after the Termination Date. During the Commitment Period the
Borrowers may accept bids from Lenders from time to time for
Competitive Advance Loans, and borrow and repay Competitive Advance
Loans, all in accordance with the terms and conditions hereof;
provided, that no Competitive Advance Loan shall be made if, after
giving effect to the making of such Loan and the simultaneous
application of the proceeds thereof, the aggregate amount of the
Exposure would exceed the aggregate amount of the Commitments.
Subject to the foregoing, any Lender may, in its sole discretion,
make Competitive Advance Loans in an aggregate outstanding amount
exceeding the amount of such Lender's Commitment.
(b) The Competitive Advance Loans may be made in Dollars
or any Available Foreign Currency, as agreed between the Borrower
and Lender in respect thereof at the time such Competitive Advance
Loan is made.
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3.2 Procedure for Competitive Advance Loan Borrowing.
(a) Any Borrower may request one or more Lenders to make bids to
make Committed Rate Loans in such manner and at such time as shall
be agreed by such Borrower and such Lenders. The proceeds of each
Competitive Advance Loan will be made available to the Borrower in
respect thereof in the manner agreed between such Borrower and the
relevant Lender at the time such Competitive Advance Loan is made.
(b) Promptly after any Lender makes a Competitive
Advance Loan (and in any event on the same day) such Lender shall
deliver a Notice of Competitive Advance Loan.
3.3 Repayment of Competitive Advance Loans; Evidence of
Debt. (a) Each Borrower that borrows any Competitive Advance Loan
hereby unconditionally promises to pay to the Lender that made such
Competitive Advance Loan on the maturity date, as agreed by such
Borrower and Lender at the time such Competitive Advance Loan is
made (or such earlier date on which all the Loans become due and
payable pursuant to Section 12), the then unpaid principal amount
of such Competitive Advance Loan. Each Borrower hereby further
agrees to pay interest on the unpaid principal amount of the
Competitive Advance Loans made by any Lender to such Borrower from
time to time outstanding from the date thereof until payment in
full thereof at the rate per annum, and on the dates, agreed by
such Borrower and Lender at the time such Competitive Advance Loan
is made. All payments in respect of Competitive Advance Loans
shall be made by such Borrower to its Competitive Advance Loan
Lender at the address separately agreed to between the Company and
such Competitive Advance Loan Lender.
(b) Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing indebtedness of
each Borrower to such Lender resulting from each Competitive
Advance Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender
from time to time in respect of Competitive Advance Loans. The
entries made in the accounts of each Lender maintained pursuant to
this subsection 3.3(b) shall, to the extent permitted by applicable
law, be prima facie evidence of the existence and amounts of the
obligations of each Borrower therein recorded, absent manifest
error; provided, however, that the failure of any Lender to
maintain any such account, or any error therein, shall not in any
manner affect the obligation of each Borrower to repay (with
applicable interest) the Competitive Advance Loans made to such
Borrower by such Lender in accordance with the terms of this
Agreement.
3.4 Prepayments. Unless otherwise agreed by the Lender
making a Competitive Advance Loan, such Competitive Advance Loan
may not be optionally prepaid prior to the scheduled maturity date
thereof.
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SECTION 4. THE SWING LINE LOANS
4.1 Swing Line Loans. Subject to the terms and
conditions hereof, each Borrower may borrow from such Borrower's
Swing Line Lender swing line loans ("Swing Line Loans") from time
to time during the Commitment Period in Dollars or in the Swing
Line Currency of such Borrower; provided, that no Swing Line Loan
shall be made if, after giving effect to the making of such Loan
and the simultaneous application of the proceeds thereof, (i) the
amount of the Exposure would exceed the aggregate amount of the
Commitments or (ii) (A) the aggregate principal amount of the Swing
Line Loans of any such Borrower outstanding in Dollars would exceed
$2,000,000 or (B) the Dollar Equivalent Amount of aggregate
principal amount of the Swing Line Loans of such Borrower
outstanding in the Swing Line Currency of any such Borrower would
exceed $2,000,000. During the Commitment Period, the Borrowers may
borrow and prepay the Swing Line Loans, in whole or in part, all in
accordance with the terms and conditions hereof.
4.2 Procedure for Swing Line Borrowing. (a) Any
Borrower may borrow Swing Line Loans during the Commitment Period
on any Business Day by giving a Notice of Borrowing in respect of
such Swing Line Loan. Subject to the terms and conditions hereof,
on the Borrowing Date of each Swing Line Loan, the relevant Swing
Line Lender shall make the proceeds thereof available to the
relevant Borrower in immediately available funds in the manner from
time to time agreed by such Borrower and such Swing Line Lender.
(b) On the last Business Day of each week on which a
Swing Line Lender has any outstanding Swing Line Loans, such Lender
shall deliver a Notice to the Administrative Agent of Swing Line
Outstandings. The Administrative Agent will, at the request of any
Swing Line Lender, advise such Swing Line Lender of the Exchange
Rate used by the Administrative Agent in calculating the Dollar
Equivalent Amount of Swing Line Loans of such Swing Line Lender on
any date.
4.3 Repayment of Swing Line Loans; Evidence of Debt.
(a) Each Borrower of Swing Line Loans hereby unconditionally
promises to pay to its Swing Line Lender on the Termination Date
(or such earlier date on which such Swing Line Loans become due and
payable pursuant to subsection 4.4 or on which all the Loans become
due and payable pursuant to Section 12), the then unpaid principal
amount of such Swing Line Loans. Each Borrower of Swing Line Loans
hereby further agrees to pay interest on the unpaid principal
amount of such Swing Line Loans from time to time outstanding from
the date thereof until payment in full thereof at the Swing Line
Rate for the Currency of such Swing Line Loan, payable on the last
Business Day of each calendar month on which such Swing Line Loans
are outstanding. All payments in respect of Swing Line Loans shall
be made by such Borrower of Swing Line Loans to its Swing Line
Lender at the
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address set forth in Schedule III for such Swing Line Lender and
Swing Line Loans in such Currency.
(b) Each Swing Line Lender shall maintain in accordance
with its usual practice an account or accounts evidencing
indebtedness of each Borrower to such Swing Line Lender resulting
from each Swing Line Loan of such Lender from time to time,
including the amounts of principal and interest payable and paid to
such Swing Line Lender from time to time under this Agreement. The
entries made in the accounts of each Swing Line Lender maintained
pursuant to this subsection 4.3(b) shall, to the extent permitted
by applicable law, be prima facie evidence of the existence and
amounts of the obligations of each Borrower therein recorded;
provided, however, that the failure of any Swing Line Lender to
maintain any such account, or any error therein, shall not in any
manner affect the obligation of each Borrower to repay (with
applicable interest) the Swing Line Loans made to such Borrower by
such Swing Line Lender in accordance with the terms of this
Agreement.
4.4 Allocating Swing Line Loans; Swing Line Loan
Participations. (a) If any Event of Default shall occur and be
continuing, any Swing Line Lender may, in its sole and absolute
discretion, direct that the Swing Line Loans owing to it be
refunded, by delivering a Notice of Swing Line Refunding. Upon
receipt of a Notice of Swing Line Refunding the Administrative
Agent shall promptly give notice of the contents thereof to the
Lenders and, unless an Event of Default described in Section 12 (f)
in respect of the Company or the relevant Borrower has occurred, to
the Company and the relevant Borrower. Each such Notice of Swing
Line Refunding shall be deemed to constitute delivery by such
Borrower of a Notice of Borrowing of Committed Rate Eurocurrency
Loans in the amount and Currency of the Swing Line Loans to which
it relates, for an Interest Period of one month's duration.
Subject to the terms and conditions hereof, each Lender (including
each Swing Line Lender in its capacity as a Lender having a
Commitment) hereby agrees to make a Committed Rate Loan to such
Borrower pursuant to Section 2 in an amount equal to such Lender's
Commitment Percentage of the aggregate amount of the Swing Line
Loans to which such Notice of Swing Line Refunding relates. Unless
any of the events described in Section 12(f) in respect of the
Company or such Borrower shall have occurred (in which case the
procedures of subsection 4.4(b) shall apply), each Lender shall
make the amount of such Committed Rate Loan available to the
Administrative Agent at the Funding Office, and at or prior to the
Funding Time, for the Currency of such Loan in funds immediately
available to the Administrative Agent. The proceeds of such
Committed Rate Loans shall be immediately made available to such
Swing Line Lender by the Administrative Agent and applied by such
Swing Line Lender to repay the Swing Line Loans to which such
Notice of Swing Line Refunding related.
(b) If prior to the time a Committed Rate Loan would
have otherwise been made pursuant to subsection 4.4(a), one of
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the events described in Section 12(f) shall have occurred in
respect of the Company or the relevant Borrower, each Lender (other
than the relevant Swing Line Lender) shall, on the date such
Committed Rate Loan would have been made pursuant to the Notice of
Swing Line Refunding referred to in subsection 4.4(a) (the
"Refunding Date"), purchase an undivided participating interest in
the outstanding Swing Line Loans to which such Notice of Swing Line
Refunding related, in an amount equal to (i) such Lender's
Commitment Percentage times (ii) the aggregate principal amount of
such Swing Line Loans then outstanding which were to have been
repaid with Committed Rate Loans (the "Swing Line Participation
Amount"). On the Refunding Date, each Lender shall transfer to
such Swing Line Lender, in immediately available funds, such
Lender's Swing Line Participation Amount, and upon receipt thereof
such Swing Line Lender shall, if requested by any Lender, deliver
to such Lender a participation certificate dated the date of such
Swing Line Lender's receipt of such funds and evidencing such
Lender's ownership of its Swing Line Participation Amount.
(c) Whenever, at any time after any Swing Line Lender
has received from any Lender such Lender's Swing Line Participation
Amount, such Swing Line Lender receives any payment on account of
the related Swing Line Loans, such Swing Line Lender will
distribute to such Lender its Commitment Percentage of such payment
on account of its Swing Line Participation Amount (appropriately
adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was
outstanding and funded); provided, however, that in the event that
such payment received by such Swing Line Lender is required to be
returned, such Lender will return to such Swing Line Lender any
portion thereof previously distributed to it by such Swing Line
Lender.
(d) Each Lender's obligation to make Committed Rate
Loans pursuant to subsection 4.4(a) and to purchase participating
interests pursuant to subsection 4.4(b) shall be absolute and
unconditional and shall not be affected by any circumstance,
including, without limitation, (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have
against any other Lender or any Borrower, or any Borrower may have
against any Lender or any other Person, as the case may be, for any
reason whatsoever; (ii) the occurrence or continuance of a Default
or an Event of Default; (iii) any adverse change in the condition
(financial or otherwise) of the Company or any of its Subsidiaries;
(iv) any breach of this Agreement by any party hereto; or (v) any
other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
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SECTION 5. THE LETTERS OF CREDIT
5.1 L/C Commitment. (a) Subject to the terms and
conditions hereof, each Issuing Bank agrees to issue letters of
credit ("Letters of Credit") for the account of any Borrower on any
Business Day during the Commitment Period in such form as shall be
reasonably acceptable to such Issuing Bank; provided, that no
Letter of Credit shall be issued if, after giving effect thereto
(i) the aggregate amount of the Exposure would exceed the aggregate
amount of the Commitments or (ii) the aggregate amount of the L/C
Obligations would exceed $50,000,000.
(b) Each Letter of Credit shall:
(i) be denominated in Dollars or an Available Foreign
Currency and shall be either (A) a standby letter of credit
issued to support obligations of a Borrower, contingent or
otherwise, to provide credit support for workers'
compensation, other insurance programs and other lawful
corporate purposes (a "Standby Letter of Credit") or (B) a
commercial letter of credit issued in respect of the purchase
of goods and services in the ordinary course of business of
the Company and its Subsidiaries (a "Commercial Letter of
Credit"; together with the Standby Letters of Credit, the
"Letters of Credit") and,
(ii) expire no later than the earlier of (A) 360 days
(in the case of Standby Letters of Credit) or 180 days (in the
case of Commercial Letters of Credit) after its date of
issuance and (B) 5 Business Days prior to the Termination
Date.
(c) Each Letter of Credit shall be subject to the
Uniform Customs and, to the extent not inconsistent therewith, the
laws of the State of New York or, if acceptable to the Majority
Lenders and the relevant account party, the jurisdiction of the
Issuing Office at which such Letter of Credit is issued.
(d) No Issuing Bank shall at any time be obligated to
issue any Letter of Credit hereunder if such issuance would
conflict with, or cause such Issuing Bank or any Lender to exceed
any limits imposed by, any applicable Requirement of Law.
5.2 Procedure for Issuance of Letters of Credit under
this Agreement. Any Borrower may from time to time request that an
Issuing Bank issue a Letter of Credit by delivering to such Issuing
Bank at its Issuing Office an Application therefor, completed to
the satisfaction of the Issuing Bank, and such other certificates,
documents and other papers and information as such Issuing Bank may
reasonably request. Upon receipt by an Issuing Bank of any
Application, such Issuing Bank will process such Application and
the certificates, documents and other papers and information
delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter
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of Credit requested thereby (but in no event shall any Issuing Bank
be required to issue any Letter of Credit earlier than five
Business Days after its receipt of the Application therefor and all
such other certificates, documents and other papers and information
relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed by such
Issuing Bank and such Borrower. Such Issuing Bank shall advise the
Administrative Agent of the terms of such Letter of Credit on the
date of issuance thereof and shall promptly thereafter furnish
copies thereof to the Company and each Lender.
5.3 Fees, Commissions and Other Charges. (a) Each
Borrower for whose account a Letter of Credit is issued hereunder
shall pay to the Administrative Agent, for the account of the
Lenders (including the Issuing Bank) pro rata according to their
Commitment Percentages, a letter of credit commission with respect
to each Letter of Credit, computed at a rate equal to the then
Applicable Margin for Eurocurrency Loans on the daily average
undrawn face amount of such Letter of Credit. Such commissions
shall be payable in arrears on the last Business Day of each March,
June, September and December to occur after the date of issuance of
each Letter of Credit and on the expiration date of such Letter of
Credit and shall be nonrefundable. Each Borrower for whose account
a Letter of Credit is issued hereunder shall also pay to the
Issuing Bank in respect of each Letter of Credit such commission as
shall be agreed from time to time by the Company and such Issuing
Bank.
(b) In addition to the foregoing fees and commissions,
each Borrower for whose account a Letter of Credit is issued
hereunder shall pay or reimburse the Issuing Bank for such normal
and customary costs and expenses as are incurred or charged by such
Issuing Bank in issuing, effecting payment under, amending or
otherwise administering such Letter of Credit.
(c) The Administrative Agent shall, promptly following
its receipt thereof, distribute to the Issuing Bank and the Lenders
all fees and commissions received by the Administrative Agent for
their respective accounts pursuant to this subsection.
5.4 L/C Participations. (a) Each Issuing Bank
irrevocably agrees to grant and hereby grants to each L/C
Participant, and, to induce the Issuing Bank to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from such Issuing
Bank, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk, an undivided interest equal to
such L/C Participant's Commitment Percentage in such Issuing Bank's
obligations and rights under each Letter of Credit issued by such
Issuing Bank hereunder and the amount of each draft paid by such
Issuing Bank thereunder. Each L/C Participant unconditionally and
irrevocably agrees with each Issuing Bank that, if a draft is paid
under any Letter of Credit
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issued by such Issuing Bank for which such Issuing Bank is not
reimbursed in full by the Borrower which is the account party
thereunder in accordance with the terms of this Agreement, such L/C
Participant shall pay to such Issuing Bank upon demand at such
Issuing Bank's Issuing Office an amount equal to such L/C
Participant's Commitment Percentage of the amount of such draft, or
any part thereof, which is not so reimbursed.
(b) If any amount required to be paid by any L/C
Participant to any Issuing Bank pursuant to subsection 5.4(a) in
respect of any unreimbursed portion of any payment made by such
Issuing Bank under any Letter of Credit is not paid to such Issuing
Bank on the date such payment is due from such L/C Participant,
such L/C Participant shall pay to such Issuing Bank on demand an
amount equal to the product of such amount, times (A) in the case
of any such payment obligation denominated in Dollars, the daily
average Federal funds rate, as quoted by such Issuing Bank, or (B)
in the case of any such payment obligation denominated in an
Available Foreign Currency, the rate customary in such Currency for
settlement of similar inter-bank obligations, as quoted by such
Issuing Bank, in each case during the period from and including the
date such payment is required to the date on which such payment is
immediately available to the Issuing Bank, times a fraction the
numerator of which is the number of days that elapse during such
period and the denominator of which is 360. A certificate of an
Issuing Bank submitted to any L/C Participant with respect to any
amounts owing under this subsection shall be conclusive in the
absence of manifest error.
(c) Whenever, at any time after an Issuing Bank has made
payment under any Letter of Credit and has received from any L/C
Participant its pro rata share of such payment in accordance with
subsection 5.4(a) the Issuing Bank receives any payment related to
such Letter of Credit (whether directly from the account party or
otherwise, including by way of set-off or proceeds of collateral
applied thereto by such Issuing Bank), or any payment of interest
on account thereof, such Issuing Bank will distribute to such L/C
Participant its pro rata share thereof; provided, however, that in
the event that any such payment received by such Issuing Bank shall
be required to be returned by the Issuing Bank, such L/C
Participant shall return to such Issuing Bank the portion thereof
previously distributed by such Issuing Bank to it.
5.5 Reimbursement Obligation of the Borrowers.
(a) Each Borrower for whose account a Letter of Credit is
issued hereunder agrees to reimburse the Issuing Bank in respect of
such Letter of Credit on each date on which such Issuing Bank
notifies such Borrower of the date and amount of a draft presented
under such Letter of Credit and paid by such Issuing Bank for the
amount of such draft so paid and any taxes, fees, charges or
other costs or expenses incurred by such Issuing Bank in connection
with such payment. Each such payment shall be made
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to such Issuing Bank at its Issuing Office in the Currency in which
payment of such draft was made and in immediately available funds.
(b) Interest shall be payable on any and all amounts
remaining unpaid by any Borrower under this subsection from the
date such amounts become payable (whether at stated maturity, by
acceleration or otherwise) until payment in full at the rate which
is (i) in the case of such amounts payable in Dollars, 2% above the
ABR from time to time and (ii) in the case of such amounts payable
in any other currency, 2% above the rate reasonably determined by
the Issuing Bank as the cost of funding such overdue amount from
time to time on an overnight basis.
5.6 Obligations Absolute. (a) The obligations of the
Borrowers under this Section 5 shall be absolute and unconditional
under any and all circumstances and irrespective of any set-off,
counterclaim or defense to payment which any Borrower may have or
have had against the Issuing Bank or any beneficiary of a Letter of
Credit.
(b) Each Borrower for whose account a Letter of Credit
is issued hereunder also agrees with the Issuing Bank in respect of
such Letter of Credit that such Issuing Bank shall not be
responsible for, and such Borrower's Reimbursement Obligations
under subsection 5.5(a) shall not be affected by, among other
things, (i) the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact
prove to be invalid, fraudulent or forged, provided, that reliance
upon such documents by such Issuing Bank shall not have constituted
gross negligence or wilful misconduct of such Issuing Bank or (ii)
any dispute between or among such Borrower and any beneficiary of
any Letter of Credit or any other party to which such Letter of
Credit may be transferred or (iii) any claims whatsoever of any
Borrower against any beneficiary of such Letter of Credit or any
such transferee.
(c) The Issuing Banks shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or
delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or
omissions caused by such Issuing Bank's gross negligence or willful
misconduct.
(d) Each Borrower for whose account a Letter of Credit
is issued hereunder agrees that any action taken or omitted by any
Issuing Bank under or in connection with any Letter of Credit or
the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the
standards of care specified in the Uniform Customs, shall be
binding on such Borrower and shall not result in any liability of
such Issuing Bank to such Borrower.
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5.7 Letter of Credit Payments. If any draft shall be
presented for payment to an Issuing Bank under any Letter of
Credit, such Issuing Bank shall promptly notify the account party
of the date and amount thereof. The responsibility of the Issuing
Bank to the account party in connection with any draft presented
for payment under any Letter of Credit shall, in addition to any
payment obligation expressly provided for in such Letter of Credit,
be limited to determining that the documents (including each draft)
delivered under such Letter of Credit in connection with such
presentment are in conformity with such Letter of Credit.
5.8 Application. To the extent that any provision of
any Application related to any Letter of Credit is inconsistent
with the provisions of this Section 5, the provisions of this
Section 5 shall apply.
SECTION 6. CERTAIN PROVISIONS APPLICABLE TO THE LOANS AND
LETTERS OF CREDIT
6.1 Facility Fee. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a facility fee
for the period from and including the Closing Date to, but
excluding, the Termination Date, computed at the Facility Fee Rate
in effect from time to time on the average daily amount of the
Commitment (used and unused) of such Lender during the period for
which payment is made, payable quarterly in arrears on the last day
of each March, June, September and December and on the Termination
Date or such earlier date on which the Commitments shall terminate
as provided herein, commencing on the first of such dates to occur
after the date hereof.
(b) The Company agrees to pay to the Administrative
Agent, for its own account, the administrative agent's fee, to the
Administrative Agent, for the account of the Lenders, the upfront
fee, and to Chemical, for its own account, such other fees, in the
amounts and on the dates set forth in the Fee Letter.
6.2 Computation of Interest and Fees. Facility fees
and, whenever it is calculated on the basis of the Prime Rate,
interest shall be calculated on the basis of a 365- (or 366-, as
the case may be) day year for the actual days elapsed; and,
otherwise, interest and Letter of Credit commissions shall be
calculated on the basis of a 360-day year for the actual days
elapsed. The Administrative Agent shall as soon as practicable
notify the relevant Borrower and the Lenders of each determination
of a Eurocurrency Rate. Any change in the ABR due to a change in
the Prime Rate, the Three-Month Secondary CD Rate or the Federal
Funds Effective Rate shall be effective as of the opening of
business on the effective day of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate,
respectively. The Administrative Agent
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shall as soon as practicable notify the relevant Borrower and the
Lenders of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the
Administrative Agent pursuant to any provision of this Agreement
shall be conclusive and binding on the Borrowers and the Lenders in
the absence of manifest error.
6.3 Pro Rata Treatment and Payments. (a) Each
borrowing by a Borrower of Committed Rate Loans, each payment by
the Borrower on account of any facility fee hereunder and any
reduction of the Commitments of the Lenders shall be made pro rata
according to the respective Commitment Percentages of the Lenders.
Each payment (including each prepayment) by any Borrower on account
of principal of and interest on any Loans shall be made pro rata
according to the respective principal amounts of the Loans of such
Borrower then due and owing to the Lenders. All payments
(including prepayments) to be made by any Borrower hereunder,
whether on account of principal, interest, fees, Reimbursement
Obligations or otherwise, shall be made without set off or
counterclaim. All payments in respect of Committed Rate Loans in
any Currency shall be made in such Currency and in immediately
available funds at the Payment Office, and at or prior to the
Payment Time, for such Type of Loans and such Currency, on the due
date thereof. The Administrative Agent shall distribute to the
Lenders any payments received by the Administrative Agent promptly
upon receipt in like funds as received. If any payment hereunder
becomes due and payable on a day other than a Business Day, such
payment shall be extended to the next succeeding Business Day, and,
with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
(b) Unless the Administrative Agent shall have been
notified in writing by any Lender prior to a Borrowing Date in
respect of Committed Rate Loans that such Lender will not make the
amount that would constitute its Commitment Percentage of such
borrowing available to the Administrative Agent, the Administrative
Agent may assume that such Lender is making such amount available
to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the relevant
Borrower a corresponding amount. If such amount is not made
available to the Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon
at a rate equal to (A) in the case of any such Committed Rate Loans
denominated in Dollars, the daily average Federal funds rate, as
quoted by the Administrative Agent, or (B) in the case of any
Committed Rate Loans denominated in an Available Foreign Currency,
the rate customary in such Currency for settlement of similar
inter-bank obligations, as quoted by the Administrative Agent, in
each case for the period until such Lender makes such amount
immediately available to the
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Administrative Agent. A certificate of the Administrative Agent
submitted to any Lender with respect to any amounts owing under
this subsection shall be conclusive in the absence of manifest
error. If such Lender's Commitment Percentage of such borrowing is
not made available to the Administrative Agent by such Lender
within three Business Days of such Borrowing Date, the
Administrative Agent shall also be entitled to recover such amount
with interest thereon at the rate per annum applicable to Swing
Line Loans in such Currency hereunder, on demand, from the relevant
Borrower.
6.4 Illegality. Notwithstanding any other provision
herein, if the adoption of or any change in any Requirement of Law
or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall
make it unlawful for any Lender to make or maintain Eurocurrency
Loans or Extensions of Credit to one or more Foreign Subsidiary
Borrowers as contemplated by this Agreement, the commitment of such
Lender hereunder to make Eurocurrency Loans, continue Eurocurrency
Loans as such, convert Loans to Eurocurrency Loans and maintain
Extensions of Credit to such Foreign Subsidiary Borrowers shall
forthwith be cancelled to the extent necessary to remedy or prevent
such illegality. Nothing in this subsection 6.4 shall affect the
obligation of the Lenders to make and maintain ABR Loans to the
Company and the Domestic Subsidiary Borrowers and, to the extent
not unlawful, to Foreign Subsidiary Borrowers, notwithstanding that
a Requirement of Law may make it unlawful to make and maintain
Eurocurrency Loans to such Borrowers.
6.5 Requirements of Law. (a) If after the date
hereof the adoption of or any change in any Requirement of Law or
in the interpretation thereof by any Governmental Authority charged
with the administration or interpretation thereof or compliance by
any Lender with any request or directive (whether or not having the
force of law) applicable generally in the jurisdiction of such
Lender to banking institutions of the same type as such Lender:
(i) shall subject any Lender to any tax of any kind
whatsoever with respect to this Agreement, any Eurocurrency
Loan made by it to any Borrower or any Extension of Credit to
any Foreign Subsidiary Borrower, or change the basis of
taxation of payments to such Lender in respect thereof (except
for Non-Excluded Taxes covered by subsection 6.6 and changes
in the rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or other
extensions of credit by, or any other acquisition of
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funds by, any office of such Lender which is not otherwise
included in the determination of the Eurocurrency Rate; or
(iii) shall impose on such Lender any other
condition affecting Eurocurrency Loans made by such Lender to
any Borrower, or Extensions of Credit by such Lender to
Foreign Subsidiary Borrowers
and the result of any of the foregoing is to increase the cost to
such Lender, by an amount which such Lender deems to be material,
of making, converting into, continuing or maintaining Eurocurrency
Loans or making or maintaining Extensions of Credit to Foreign
Subsidiary Borrowers or to reduce any amount receivable hereunder
in respect thereof, and such Lender has no reasonable means (as it
shall determine in its sole discretion) to avoid such costs or
reductions, then, in any such case, the Company shall promptly pay
such Lender following receipt of a certificate of such Lender in
accordance with subsection 6.5(d) such additional amount or amounts
as will compensate such Lender for such increased cost or reduction
suffered.
(b) If any Lender shall have determined that the
adoption of or any change in any Requirement of Law regarding
capital adequacy or in the interpretation thereof by any
Governmental Authority charged with the administration or
interpretation thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive
regarding capital adequacy (whether or not having the force of law)
made subsequent to the date hereof shall have the effect of
reducing the rate of return on such Lender's or such corporation's
capital as a consequence of its obligations hereunder to a level
below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into
consideration such Lender's or such corporation's policies with
respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, the Company shall promptly pay
to such Lender following receipt of a certificate of such Lender in
accordance with subsection 6.5(d) such additional amount or amounts
as will compensate such Lender for any such reduction suffered.
Notwithstanding any other provision in this paragraph (b), no
Lender or Swing Line Lender shall be entitled to demand
compensation pursuant to this paragraph (b) if it shall not then be
the general practice of such Lender or Swing Line Lender, as
applicable, to demand such compensation in similar circumstances
under comparable provisions of other comparable credit agreements.
(c) In addition to, and without duplication of, amounts
which may become payable from time to time pursuant to paragraphs
(a) and (b) of this subsection 6.5, each Borrower agrees to pay to
each Lender which requests compensation under this paragraph (c) by
notice to such Borrower, on the last day of each Interest Period
with respect to any Committed Rate
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Eurocurrency Loan made by such Lender to such Borrower, at any time
when such Lender shall be required to maintain reserves against
"Eurocurrency liabilities" under Regulation D of the Board (or, at
any time when such Lender may be required by the Board or by any
other Governmental Authority, whether within the United States or
in another relevant jurisdiction, to maintain reserves against any
other category of liabilities which includes deposits by reference
to which the Eurocurrency Rate is determined as provided in this
Agreement or against any category of extensions of credit or other
assets of such Lender which includes any such Committed Rate
Eurocurrency Loans), an additional amount (determined by such
Lender's calculation or, if an accurate calculation is
impracticable, reasonable estimate using such reasonable means of
allocation as such Lender shall determine) equal to the actual
costs, if any, incurred by such Lender during such Interest Period
as a result of the applicability of the foregoing reserves to such
Committed Rate Eurocurrency Loans.
(d) A certificate of each Lender or Swing Line Lender
setting forth such amount or amounts as shall be necessary to
compensate such Lender or Swing Line Lender as specified in
paragraph (a), (b) or (c) above, as the case may be, and setting
forth in reasonable detail an explanation of the basis of
requesting such compensation in accordance with paragraph (a) or
(b) above, including calculations in detail comparable to the
detail set forth in Certificates delivered to such Lender in
similar circumstances under comparable provisions of other
comparable credit agreements, shall be delivered to the relevant
Borrower and shall be conclusive absent manifest error. The
relevant Borrower shall pay each Lender or Swing Line Lender the
amount shown as due on any such certificate delivered to it within
10 days after its receipt of the same.
(e) Failure on the part of any Lender or Swing Line
Lender to demand compensation for any increased costs or reduction
in amounts received or receivable or reduction in return on capital
with respect to any period shall not constitute a waiver of such
Lender's or Swing Line Lender's right to demand compensation with
respect to such period or any other period, except that no Lender
or Swing Line Lender shall be entitled to compensation under this
subsection 6.5 for any costs incurred or reduction suffered with
respect to any date unless such Lender or Swing Line Lender, as
applicable, shall have notified the relevant Borrower that it will
demand compensation for such costs or reductions under paragraph
(d) above, not more than six months after the later of (i) such
date and (ii) the date on which such Lender or Swing Line Lender,
as applicable, shall have become aware of such costs or reductions.
The protection of this subsection 6.5 shall be available to each
Lender and Swing Line Lender regardless of any possible contention
of the invalidity or inapplicability of the law, rule, regulation,
guideline or other change or condition that shall have occurred or
been imposed.
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(f) The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
6.6 Taxes. (a) All payments made by any Loan Party
under this Agreement shall be made free and clear of, and without
deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties,
charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise
taxes (imposed in lieu of net income taxes) imposed on the
Administrative Agent or any Lender as a result of a present or
former connection between the Administrative Agent or such Lender
and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or
therein (other than any such connection arising solely from the
Administrative Agent or such Lender having executed, delivered or
performed its obligations or received a payment under, or enforced,
this Agreement) provided, however, that the Lender shall have
complied with the relevant provisions of this subsection 6.6. If
any such non-excluded taxes, levies, imposts, duties, charges, fees
deductions or withholdings ("Non-Excluded Taxes") are required to
be withheld from any amounts payable to the Administrative Agent or
any Lender hereunder, the amounts so payable to the Administrative
Agent or such Lender shall be increased to the extent necessary to
yield to the Administrative Agent or such Lender (after payment of
all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this
Agreement. Whenever any Non-Excluded Taxes are payable by any Loan
Party, as promptly as possible thereafter such Loan Party shall
timely pay such Non-Excluded Taxes and shall send to the
Administrative Agent for its own account or for the account of such
Lender, as the case may be, a certified copy of an original
official receipt received by such Loan Party showing payment
thereof. If such Loan Party fails to pay any Non-Excluded Taxes
when due to the appropriate taxing authority or fails to remit to
the Administrative Agent the required receipts or other required
documentary evidence, such Loan Party shall indemnify the
Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative
Agent or any Lender as a result of any such failure.
Notwithstanding the foregoing, no Loan Party shall be required to
make any payments in respect of Non-Excluded Taxes to any Lender
that has changed the lending office at which it maintains the
Extensions of Credit to which such Non-Excluded Taxes relate (other
than any such change in lending office made by such Lender pursuant
to subsection 6.8 to avoid or minimize the application or effects
of subsection 6.5 or 6.6) in an amount greater than such Loan Party
would have been required to pay pursuant to this subsection 6.6 if
no such change in lending office had occurred. The agreements in
this subsection shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.
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(b) Each Lender that is not incorporated under the laws
of the United States of America or a state thereof shall:
(i) deliver to the Company and the Administrative
Agent (A) two duly completed copies of United States Internal
Revenue Service Form 1001 or 4224, or successor applicable
form, as the case may be, and (B) an Internal Revenue Service
Form W-8 or W-9, or successor applicable form, as the case may
be;
(ii) deliver to the Company and the Administrative
Agent two further copies of any such form or certification on
or before the date that any such form or certification expires
or becomes obsolete and after the occurrence of any event
requiring a change in the most recent form previously
delivered by it to the Company; and
(iii) obtain such extensions of time for filing and
complete such forms or certifications as may reasonably be
requested by the Company or the Administrative Agent;
unless in any such case an event (including, without limitation,
any change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form with
respect to it and such Lender so advises the Company and the
Administrative Agent. Such Lender shall certify (i) in the case of
a Form 1001 or 4224, that it is entitled to receive payments under
this Agreement in respect of Extensions of Credit to the Company
and the Domestic Subsidiary Borrowers without deduction or
withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption
from United States backup withholding tax. Each Person that shall
become a Lender or a Participant pursuant to subsection 14.6 shall,
upon the effectiveness of the related transfer, be required to
provide all of the forms and statements required pursuant to this
subsection, provided that in the case of a Participant such
Participant shall furnish all such required forms and statements to
the Lender from which the related participation shall have been
purchased.
(c) Each Lender further agrees to use reasonable efforts
(consistent with legal and regulatory restrictions) to deliver to
the Foreign Subsidiary Borrowers, promptly upon any request
therefor from time to time, such forms, documents and other
information as may be required by applicable law from time to time
and to file all appropriate forms to obtain a certificate or other
appropriate documents from the appropriate governmental authorities
to establish that payments made in respect of Extensions of Credit
to the Foreign Subsidiary Borrower can be made without (or at a
reduced rate of) withholding of any Non-Excluded Taxes provided,
however, that if such Lender is or becomes unable, by virtue of any
applicable law, rule or
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regulation, to establish such exemption or reduction the Loan
Parties shall nonetheless remain obligated under subsection 6.6(a)
above to pay the amounts described therein and provided, further,
that no Lender shall be required to take any action hereunder which
in the discretion of such Lender would cause such Lender and its
lending office(s) to suffer a material, economic, legal or
regulatory disadvantage.
6.7 Indemnity. Each Borrower agrees to indemnify each
Lender and to hold each Lender harmless from any loss or reasonable
expense which such Lender may sustain or incur as a consequence of
(a) default by such Borrower in making a borrowing of, conversion
into or continuation of a Loan after such Borrower has given a
notice requesting the same in accordance with the provisions of
this Agreement, (b) default by such Borrower in making any
prepayment after such Borrower has given a notice thereof in
accordance with the provisions of this Agreement or (c) the making
by such Borrower of a prepayment of Eurocurrency Loans or
Competitive Advance Loans on a day which is not the last day of an
Interest Period or the maturity date, as the case may be, with
respect thereto. Such loss or reasonable expense shall be equal to
the sum of (a) such Lender's actual costs and expenses incurred
(other than any lost profits) in connection with, or by reason of,
any of the foregoing events and (b) an amount equal to the excess,
if any, as reasonably determined by such Lender of (i) its cost of
obtaining the funds for the Loan being paid, prepaid, converted or
continued (assumed to be the Eurocurrency Rate applicable thereto)
for the period from and including the date for such payment,
prepayment, conversion or continuation to but excluding the last
day of the Interest Period for such Loan over (ii) the amount of
interest (as reasonably determined by such Lender) that would be
realized by such Lender in reemploying the funds so paid, prepaid,
converted or continued for such period or Interest Period, as the
case may be. A certificate of any Lender setting forth any amount
or amounts, including calculations in reasonable detail, that such
Lender is entitled to receive pursuant to this subsection 6.7 shall
be delivered to the Borrower and shall be conclusive absent
manifest error. This covenant shall survive the termination of
this Agreement and the payment of the Loans and all other amounts
payable hereunder.
6.8 Change of Lending Office. (a) Each Lender agrees
that upon the occurrence of any event giving rise to the operation
of subsection 6.4, 6.5 or 6.6, it will use reasonable efforts
(consistent with legal and regulatory restrictions) to file any
certificate or document requested by the Company or designate a
different lending office for Extensions of Credit affected by such
event with the object of avoiding or minimizing the consequences of
such event; provided, that such filing or designation is made on
terms that, in the sole judgment of such Lender, cause such Lender
and its lending office(s) to suffer no material economic, legal or
regulatory disadvantage; and, provided, further, that nothing in
this subsection 6.8 shall
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affect or postpone any of the obligations of any Borrower or the
rights of any Lender pursuant to subsection 6.4, 6.5 or 6.6.
(b) In the event that any Lender shall have delivered a
notice or certificate pursuant to subsections 6.4, 6.5 or 6.8, the
Borrowers shall have the right, but not the obligation, at their
own expense, upon notice to such Lender and the Administrative
Agent, to replace such Lender with an assignee (in accordance with
and subject to the restrictions contained in subsection 14.6)
approved by the Administrative Agent (which approval shall not be
unreasonably withheld), and such Lender hereby agrees to transfer
and assign without recourse (in accordance with and subject to the
restrictions contained in subsection 14.6) all its interests,
rights and obligations under this Agreement to such assignee;
provided, however, that no Lender shall be obligated to make any
such assignment unless (i) such assignment shall not conflict with
any Requirement of Law, (ii) such assignee shall pay to the
affected Lender in immediately available funds on the date of such
assignment the principal of the Loans made by such Lender
hereunder and (iii) the Borrowers shall pay to the affected Lender
in immediately available funds on the date of such assignment the
interest accrued to the date of payment on the Loans made by such
Lender hereunder and all other amounts accrued for such Lender's
account or owed to it hereunder (including any amount that would be
payable to such Lender pursuant to subsection 6.7 if such
assignment were, instead, a prepayment).
6.9 Company Controls on Exposure; Calculation of
Exposure; Prepayment if Exposure exceeds Commitments. (a) The
Company will implement and maintain internal accounting controls to
monitor the borrowings and repayments of Loans by the Company and
the Subsidiary Borrowers and the issuance of and drawings under
Letters of Credit, with the object of preventing any request for an
Extension of Credit that would result in the aggregate amount of
the Exposure being in excess of the Commitments and of promptly
identifying and remedying any circumstance where, by reason of
changes in exchange rates, the aggregate amount of the Exposure
does exceed the Commitments. In the event that at any time the
Company determines that the aggregate amount of the Exposure
exceeds the aggregate amount of the Commitments by more that 5%,
the Company will, as soon as practicable but in any event within
five Business Days of making such determination, make such
repayments or prepayments of Loans as shall be necessary to cause
the aggregate amount of the Exposure to no longer exceed the
Commitments.
(b) The Administrative Agent will calculate the
aggregate amount of the Exposure from time to time, and in any
event not less frequently than once during each calendar week. In
making such calculations, the Administrative Agent will rely on the
information most recently received by it from the Swing Line
Lenders in respect of outstanding Swing Line Loans and from Lenders
in respect of outstanding Competitive Advance Loans.
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Upon making each such calculation, the Administrative Agent will
inform the Company and the Lenders of the results thereof.
(c) In the event that on any date the Administrative
Agent calculates that the aggregate amount of the Exposure exceeds
the aggregate amount of the Commitments by more than 5%, the
Administrative Agent will give notice to such effect to the
Company. Within five Business Days after receipt of any such
notice, the Company will, as soon as practicable but in any event
within five Business Days of receipt of such notice, make such
repayments or prepayments of Loans as shall be necessary to cause
the aggregate amount of the Exposure to no longer exceed the
Commitments.
(d) Any prepayment required to be made pursuant to this
subsection 6.9 shall be accompanied by payment of amounts payable,
if any, pursuant to subsection 6.7 in respect of the amount so
prepaid.
SECTION 7. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to
enter into this Agreement, to make the Loans and to issue and/or
participate in the Letters of Credit, the Company hereby represents
and warrants to the Administrative Agent and each Lender that:
7.1 Financial Condition. The consolidated balance sheet
of the Company and its consolidated Subsidiaries as at June 30,
1994 and the related consolidated statements of income and of cash
flows for the fiscal year ended on such date, reported on by KPMG
Peat Marwick, copies of which have heretofore been furnished to
each Lender, are complete and correct and present fairly the
consolidated financial condition of the Company and its
consolidated Subsidiaries as at such date, and the consolidated
results of their operations and their consolidated cash flows for
the fiscal year then ended. All such financial statements,
including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout
the periods involved (except as approved by such accountants or
Responsible Officer, as the case may be, and as disclosed therein).
Neither the Company nor any of its consolidated Subsidiaries had,
at the date of the most recent balance sheet referred to above, any
material Guarantee Obligation, contingent liability or liability
for taxes, or any long-term lease or unusual forward or long-term
commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction, which is not
reflected in the foregoing statements or in the notes thereto.
During the period from June 30, 1994 to and including the date
hereof there has been no sale, transfer or other disposition by the
Company or any of its consolidated Subsidiaries of any material
part of its business or property and no purchase or other
acquisition of any business or
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property (including any capital stock of any other Person) material
in relation to the consolidated financial condition of the Company
and its consolidated Subsidiaries at June 30, 1994.
7.2 No Change. (a) Since June 30, 1994 there has been
no development or event which has had or is reasonably expected to
have a Material Adverse Effect, and (b) during the period from June
30, 1994 to and including the date hereof no dividends or other
distributions have been declared, paid or made upon the Capital
Stock of the Company nor has any of the Capital Stock of the
Company been redeemed, retired, purchased or otherwise acquired for
value by the Company or any of its Subsidiaries, except for payment
by the Company of the Dividend.
7.3 Corporate Existence; Compliance with Law. Each of
the Company and its Subsidiaries (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its organization, (b) has the corporate power and authority to own
and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently
engaged, (c) is duly qualified as a foreign corporation under the
laws of each jurisdiction where its ownership, lease or operation
of property or the conduct of its business requires such
qualification except to the extent that the failure to so qualify
is not reasonably expected to have a Material Adverse Effect and
(d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith is not reasonably
expected to have a Material Adverse Effect.
7.4 Corporate Power; Authorization; Enforceable
Obligations. The Company and each other Loan Party has the
corporate power and authority to make, deliver and perform the Loan
Documents to which it is a party and to borrow hereunder and has
taken all necessary corporate action to authorize the borrowings on
the terms and conditions of this Agreement and to authorize the
execution, delivery and performance of the Loan Documents to which
it is a party. No consent or authorization of, filing with, notice
to or other act by or in respect of, any Governmental Authority or
any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of the Loan Documents to which the Company or any
Loan Party is a party. This Agreement has been, and each other
Loan Document to which it is a party will be, duly executed and
delivered on behalf of the Company and each Loan Party party hereto
or thereto. This Agreement constitutes, and each other Loan
Document to which it is a party when executed and delivered will
constitute, a valid and binding obligation of the Company or the
Loan Party, as the case may be, party thereto enforceable against
it in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
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7.5 No Legal Bar. The execution, delivery and
performance of the Loan Documents to which the Company or any Loan
Party is a party, the borrowings hereunder and the use of the
proceeds thereof will not (a) violate any Requirement of Law or
Contractual Obligation of the Company or of any of its Subsidiaries
except where any such violation is not reasonably expected to
result in a Material Adverse Effect or (b) result in the creation
or imposition of any Lien on any of its or their respective
properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation except where any such creation or imposition
of any Lien is not reasonably expected to result in a Material
Adverse Effect.
7.6 No Material Litigation. No litigation,
investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to the knowledge of the
Company, threatened by or against the Company or any of its
Subsidiaries or against any of its or their respective properties
or revenues (a) with respect to any of the Loan Documents or any of
the transactions contemplated hereby or thereby, or (b) which is
reasonably expected to have a Material Adverse Effect.
7.7 No Default. Neither the Company nor any of its
Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which could reasonably be
expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing.
7.8 Ownership of Property; Liens. Each of the Company
and its Subsidiaries has good and marketable title to, or valid
leasehold interests in, all its material real property, except for
minor defects in title that do not interfere in any material
respect with its ability to conduct its business as presently
conducted. All such material properties are free and clear of all
Liens, other than Liens permitted by subsection 10.3.
7.9 Intellectual Property. The Company and each of its
Subsidiaries owns, or is licensed to use, all trademarks,
tradenames, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted
except for those failures to own or license which are not
reasonably expected to have a Material Adverse Effect (the
"Intellectual Property"). No claim has been asserted against the
Company or any Subsidiary and is pending by any Person challenging
or questioning the use by the Company or any Subsidiary of any such
Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does the Company know of any valid basis
for any such claim. To the best knowledge of the Company, the use
of such Intellectual Property by the Company and its Subsidiaries
does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, are not reasonably
expected to have a Material Adverse Effect.
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7.10 Taxes. Each of the Company and its Subsidiaries
has filed or caused to be filed all tax returns which, to the
knowledge of the Company, are required to be filed and has paid all
taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other
taxes, fees or other charges imposed on it or any of its property
by any Governmental Authority (other than any amount the validity
of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the Company or its
Subsidiaries, as the case may be) except where such failure to file
or pay is not reasonably expected to result in a Material Adverse
Effect; no tax Lien has been filed in respect of any material
amount of unpaid taxes, and, to the knowledge of the Company, no
claim is being asserted, with respect to any such tax, fee or other
charge except where such claim is not reasonably expected to result
in a Material Adverse Effect.
7.11 Federal Regulations. No part of the proceeds of
any Loans will be used for "purchasing" or "carrying" any "margin
stock" within the respective meanings of each of the quoted terms
under Regulation G or Regulation U of the Board of Governors of the
Federal Reserve System as now and from time to time hereafter in
effect. If requested by any Lender or the Administrative Agent,
the Company will furnish to the Administrative Agent and each
Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1 referred to in said
Regulation G or Regulation U, as the case may be.
7.12 ERISA. Neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section 412
of the Code or Section 302 of ERISA) has occurred during the
five-year period prior to the date on which this representation is
made or deemed made on the date of any Extension of Credit with
respect to any Single Employer Plan or Multiemployer Plan, and each
Plan (such representation in respect of any Multiemployer Plan
being made to the best of the Company's knowledge) has complied in
all material respects with the applicable provisions of ERISA and
the Code. No termination of a Single Employer Plan has occurred,
and no Lien on assets of the Company or any Commonly Controlled
Entity in favor of the PBGC or a Plan has arisen, during such five-
year period. The present value of all accrued benefits under each
Single Employer Plan (based on those assumptions used to fund such
Plans) did not, as of the last annual valuation date prior to the
date on which this representation is made or deemed made on the
date of any Extension of Credit, exceed the value of the assets of
such Plan allocable to such accrued benefits. Neither the Company
nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan, and neither the Company nor
any Commonly Controlled Entity would become subject to any
liability under ERISA if the Company or any such Commonly
Controlled Entity were to withdraw completely from all
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Multiemployer Plans as of the valuation date most closely preceding
the date on which this representation is made or deemed made. To
the best of the Company's knowledge, no such Multiemployer Plan is
in Reorganization or Insolvent. The present value (determined
using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating)
of the liability of the Company and each Commonly Controlled Entity
for post retirement benefits to be provided to their current and
former employees under Plans which are welfare benefit plans (as
defined in Section 3(1) of ERISA) does not, in the aggregate,
exceed the assets under all such Plans allocable to such benefits
by an amount in excess of $5,000,000.
7.13 Investment Company Act; Other Regulations. Neither
the Company nor any Subsidiary Borrower is an "investment company",
or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended. Neither
the Company nor any Subsidiary Borrower is subject to regulation
under any Federal or State statute or regulation (other than
Regulation X of the Board of Governors of the Federal Reserve
System) which limits its ability to incur Indebtedness.
7.14 Subsidiaries. Schedule 7.14 lists all the
Subsidiaries of the Company at the date hereof.
7.15 Purpose of Loans and Letters of Credit. The
proceeds of the Loans and the Letters of Credit shall be used by
the Company and the Subsidiary Borrowers to refinance existing bank
lines and for general corporate purposes including, without
limitation, working capital, letters of credit, repayment,
prepayment or purchase of long-term indebtedness and acquisitions.
7.16 Accuracy and Completeness of Information. All
information heretofore furnished by the Company to the Lenders for
purposes of or in connection with this Agreement, and all such
information hereafter furnished by the Company to any Lender for
purposes of this Agreement, will not, at the time delivered,
contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made or to
be made, in the light of the circumstances under which they were or
will be made, not misleading. Prior to the date hereof, the
Company has disclosed to the Lenders in writing any and all facts
which materially and adversely affect (to the extent the Company
can as of the date hereof reasonably foresee), the business,
operations or financial condition of the Company and its
Subsidiaries taken as a whole, or the ability of the Borrowers to
perform their obligations under this Agreement.
7.17 Environmental Matters. Except to the extent that
all of the following are not reasonably expected to have a Material
Adverse Effect:
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(a) The facilities and properties owned, leased or
operated by the Company or any of its Subsidiaries (the
"Properties") do not contain, and to the knowledge of the
Company during its period of ownership, lease or operation of
the Properties, have not previously contained, any Materials
of Environmental Concern in amounts or concentrations which
(i) constitute a violation of, or (ii) are reasonably expected
to give rise to liability under, any Environmental Law.
(b) The Properties and all operations at the Properties
are in compliance, and have in the last five years been in
compliance, in all material respects with all applicable
Environmental Laws, and there is no contamination at, under or
about the Properties or violation of any Environmental Law
with respect to the Properties or the business operated by the
Company or any of its Subsidiaries (the "Business") which
could materially interfere with the continued operation of the
Properties or materially impair the fair saleable value
thereof.
(c) Neither the Company nor any of its Subsidiaries has
received any written notice of violation, alleged violation,
non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws
with regard to any of the Properties or the Business, nor does
the Company have knowledge or reason to believe that any such
notice will be received or is being threatened.
(d) Materials of Environmental Concern have not been
transported or disposed of from the Properties in violation of
any Environmental Law, nor have any Materials of Environmental
Concern been generated, treated, stored or disposed of at, on
or under any of the Properties in violation of, or in a manner
that could reasonably be expected to give rise to liability
under, any applicable Environmental Law.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of the
Company, threatened, under any Environmental Law to which the
Company or any Subsidiary is or will be named as a party with
respect to the Properties or the Business, nor are there any
consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative
or judicial requirements outstanding under any Environmental
Law with respect to the Properties or the Business.
(f) There has been no release of Materials of
Environmental Concern at or from the Properties, or arising
from or related to the operations of the Company or any
Subsidiary in connection with the Properties or otherwise in
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connection with the Business, in violation of or in amounts or
in a manner that could reasonably be expected to give rise to
liability under Environmental Laws.
SECTION 8. CONDITIONS PRECEDENT
8.1 Conditions to Initial Extensions of Credit. The
agreement of each Lender to make the initial Extension of Credit
requested to be made by it is subject to the satisfaction,
immediately prior to or concurrently with the making of such
Extension of Credit on the Closing Date, of the following
conditions precedent:
(a) Credit Agreement. The Administrative Agent shall
have received this Agreement, executed and delivered by each
Lender and by the Company and each of the other Loan Parties
listed on Schedule II on the Closing Date.
(b) Related Agreements. The Administrative Agent shall
have received, with a copy for each Lender, true and correct
copies, certified as to authenticity by the Company, of any
Material Debt Instrument.
(c) Borrowing Certificate. The Administrative Agent
shall have received, with a counterpart for each Lender, a
certificate of the Company, dated the Closing Date,
substantially in the form of Exhibit C, with appropriate
insertions and attachments, satisfactory in form and substance
to the Administrative Agent, executed by the President or any
Vice President and the Secretary or any Assistant Secretary of
the Company. There shall be attached to such certificate (i)
a copy of the resolutions, in form and substance satisfactory
to the Administrative Agent, of the Board of Directors of the
Company authorizing the execution, delivery and performance of
this Agreement, (ii) a copy of the resolutions, in form and
substance satisfactory to the Administrative Agent, of the
Board of Directors of each of the Domestic Subsidiary
Borrowers and Subsidiary Guarantors listed on Schedule II on
the Closing Date authorizing the execution, delivery and
performance of this Agreement and (iii) specimen signatures of
officers of each Loan Party authorized to execute this
Agreement and related documents as of the date hereof.
(d) Corporate Documents. The Administrative Agent shall
have received, with a counterpart for each Lender, true and
complete copies of the certificate of incorporation and
by-laws of the Company, certified as of the Closing Date as
complete and correct copies thereof by the Secretary or an
Assistant Secretary of the Company.
(e) Consents, Licenses and Approvals. The
Administrative Agent shall have received, with a counterpart
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for each Lender, a certificate of a Responsible Officer of the
Company (i) attaching copies of all consents, authorizations
and filings referred to in subsection 7.4, and (ii) stating
that such consents, licenses and filings are in full force and
effect, and each such consent, authorization and filing shall
be in form and substance satisfactory to the Administrative
Agent.
(f) Fees. The Administrative Agent shall have received
the fees to be received on the Closing Date referred to in
subsection 6.1(b).
(g) Legal Opinions. The Administrative Agent shall have
received, with a counterpart for each Lender, the following
executed legal opinions:
(i) the executed legal opinion of Jones, Day,
Reavis & Pogue, counsel to the Company, the Domestic
Subsidiary Borrowers and the Subsidiary Guarantors,
substantially in the form of Exhibit E-1;
(ii) the executed legal opinion of the general
counsel of the Company, substantially in the form of
Exhibit E-2; and
(iii) the executed legal opinion of counsel to each
Foreign Subsidiary Borrower that is a party to this
Agreement on the Closing Date, covering the matters set
forth in Exhibit E-3, with such modifications therein as
may be appropriate in each relevant jurisdiction.
Each such legal opinion shall cover such other matters
incident to the transactions contemplated by this Agreement as
the Administrative Agent may reasonably require.
8.2 Conditions to Each Extension of Credit. The
agreement of each Lender to make any Extension of Credit requested
to be made by it on any date (including, without limitation, its
initial Extension of Credit) is subject to the satisfaction of the
following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Company in or
pursuant to this Agreement shall be true and correct in all
material respects on and as of such date as if made on and as
of such date.
(b) No Default. No Default or Event of Default shall
have occurred and be continuing on such date or after giving
effect to the Extensions of Credit requested to be made on
such date.
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(c) Additional Matters. All corporate and other
proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by
this Agreement shall be satisfactory in form and substance to
the Administrative Agent.
Each request by a Borrower for an Extension of Credit hereunder
shall constitute a representation and warranty by such Borrower as
of the date on which such Extension of Credit is to be made that
the conditions contained in this subsection have been satisfied.
SECTION 9. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the
Commitments remain in effect or any amount is owing to any Lender
or the Administrative Agent hereunder or under any other Loan
Document, the Company shall and (except in the case of delivery of
financial information, reports and notices) shall cause each of its
Subsidiaries to:
9.1 Financial Statements. Furnish to each Lender:
(a) as soon as available, but in any event within
90 days after the end of each fiscal year of the Company, a
copy of the consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such year and the
related consolidated statements of income and retained
earnings and of cash flows for such year, setting forth in
each case in comparative form the figures for the previous
year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of
the scope of the audit, by KPMG Peat Marwick or other
independent certified public accountants of nationally
recognized standing; and
(b) as soon as available, but in any event not later
than 45 days after the end of each of the first three
quarterly periods of each fiscal year of the Company, the
unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries as at the end of such quarter and
the related unaudited consolidated statements of income and
retained earnings and of cash flows of the Company and its
consolidated Subsidiaries for such quarter and the portion of
the fiscal year through the end of such quarter, setting forth
in each case in comparative form the figures for the previous
year, certified by a Responsible Officer as being fairly
stated in all material respects (subject to normal year-end
audit adjustments);
all such financial statements shall be complete and correct in all
material respects and shall be prepared in reasonable detail and in
accordance with GAAP applied consistently throughout the
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periods reflected therein and with prior periods (except as
approved by such accountants or officer, as the case may be, and
disclosed therein).
9.2 Certificates; Other Information. Furnish to each
Lender:
(a) concurrently with the delivery of the financial
statements referred to in subsection 9.1(a), a certificate of
the independent certified public accountants reporting on such
financial statements stating that in making the examination
necessary therefor no knowledge was obtained of any Default or
Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of the financial
statements referred to in subsections 9.1(a) and (b), a
certificate of a Responsible Officer stating that, to the best
of such Officer's knowledge, the Company during such period
has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this
Agreement and the other Loan Documents to be observed,
performed or satisfied by it, and that such Officer has
obtained no knowledge of any Default or Event of Default
except as specified in such certificate;
(c) within 45 days after the end of each of the first
three fiscal quarters in each fiscal year of the Company, and
within 90 days after the end of each fiscal year of the
Company, a certificate of the principal financial officer of
the Company showing in detail the computations necessary to
calculate the Applicable Margin and Facility Fee Rate (an
"EBITDA Ratio Certificate");
(d) not later than ten Business Days following approval
by the Board of Directors of the Company (and in any event at
least once in each fiscal year), a copy of the Company's final
Business Plan as approved by the Directors;
(e) within five days after the same are sent, copies of
all financial statements and reports which the Company sends
to its stockholders, and within five days after the same are
filed, copies of all financial statements and periodic reports
which the Company may make to, or file with, the Securities
and Exchange Commission or any successor or analogous
Governmental Authority; and
(f) promptly, such additional financial and other
information as any Lender may from time to time reasonably
request (including, but not limited to, annual consolidating
financial statements not later than 150 days after the end of
each fiscal year).
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9.3 Payment of Obligations. Pay, discharge or otherwise
satisfy at or before maturity or before they become delinquent, as
the case may be, all its obligations of whatever nature, except
where the amount or validity thereof is currently being contested
in good faith by appropriate proceedings and reserves in conformity
with GAAP with respect thereto have been provided on the books of
the Company or its Subsidiaries, as the case may be or to the
extent that the failure to so pay, discharge or satisfy would not
be reasonably expected to have a Material Adverse Effect.
9.4 Conduct of Business and Maintenance of Existence.
Continue to engage in business of the same general type as now
conducted by it and preserve, renew and keep in full force and
effect its corporate existence and take all reasonable action to
maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except as otherwise
permitted pursuant to subsection 10.4; comply with all Contractual
Obligations and Requirements of Law except to the extent that
failure to comply therewith could not be reasonably expected to
have a Material Adverse Effect.
9.5 Maintenance of Property; Insurance. Keep all
property useful and necessary in its business in good working order
and condition; maintain with financially sound and reputable
insurance companies insurance on all its property on an "all risk"
basis; and furnish to each Lender, upon written request, full
information as to the insurance carried.
9.6 Inspection of Property; Books and Records;
Discussions. Keep proper books of records and account in which
full, true and correct entries in conformity with GAAP and all
Requirements of Law shall be made of all dealings and transactions
in relation to its business and activities; and permit
representatives of the Lenders to visit and inspect any of its
properties and examine and make abstracts from any of its books and
records at any reasonable time and as often as may reasonably be
desired and to discuss the business, operations, properties and
financial and other condition of the Company and its Subsidiaries
with officers and employees of the Company and its Subsidiaries and
with its independent certified public accountants; provided that
all such visits shall be coordinated by the Lenders with the
Administrative Agent, and by the Administrative Agent with the
Company, in order to minimize disruption of the Company's business.
9.7 Notices. Promptly give notice to the Administrative
Agent and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any
Contractual Obligation of the Company or any of its
Subsidiaries or (ii) litigation, investigation or proceeding
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which may exist at any time between the Company or any of its
Subsidiaries and any Governmental Authority, which could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Company
or any of its Subsidiaries in which the amount involved is
$5,000,000 or more and not covered by insurance or in which
injunctive or similar relief is sought unless the Company has
determined in good faith, after consultation with and based
upon advice of counsel acting for the Company or such
Subsidiary in such litigation or proceeding, that it could not
be reasonably expected that such litigation or proceeding
would result in a final judgment against the Company or such
Subsidiary in an amount greater than $5,000,000;
(d) the following events, as soon as possible and in any
event within 30 days after the Company knows or has reason to
know thereof: (i) the occurrence or expected occurrence of
any Reportable Event with respect to any Single Employer Plan
or Multiemployer Plan, a failure of the Company or a Commonly
Controlled Entity to make any required contribution to a Plan,
the creation of any Lien on the assets of the Company or any
Commonly Controlled Entity in favor of the PBGC or a Plan or
any withdrawal of the Company or a Commonly Controlled Entity
from, or the termination, Reorganization or Insolvency of, any
Multiemployer Plan or (ii) the institution of proceedings or
the taking of any other action by the PBGC or the Company or
any Commonly Controlled Entity or any Multiemployer Plan with
respect to the withdrawal from, or the terminating,
Reorganization or Insolvency of, any Single Employer Plan or
Multiemployer Plan; and
(e) any development or event which could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this subsection shall be accompanied by a
statement of a Responsible Officer setting forth details of the
occurrence referred to therein and stating what action the Company
proposes to take with respect thereto.
9.8 Environmental Laws. (a) Comply with, and ensure
compliance by all tenants and subtenants, if any, with, all
applicable Environmental Laws and obtain and comply in all material
respects with and maintain, and ensure that all tenants and
subtenants obtain and comply in all material respects with and
maintain, any and all licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws
except to the extent that failure to do so could not be reasonably
expected to have a Material Adverse Effect.
(b) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
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required under Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all
Governmental Authorities regarding Environmental Laws except to the
extent that the same (i) are being contested in good faith by
appropriate proceedings and could not be reasonably expected to
have a Material Adverse Effect or (ii) could not be reasonably
expected to have a Material Adverse Effect.
SECTION 10. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the
Commitments remain in effect or any amount is owing to any Lender
or the Administrative Agent hereunder or under any other Loan
Document, the Company shall not, directly or indirectly:
10.1 Financial Condition Covenants.
(a) Consolidated Total Debt to Consolidated
Capitalization. Permit the ratio of Consolidated Total Debt
to Consolidated Capitalization at any time to be greater than
68%.
(b) EBITDA Ratio. Permit the EBITDA Ratio for any
period of four consecutive fiscal quarters to be less than
2.25 to 1.0.
10.2 Limitation on Indebtedness of Restricted
Subsidiaries. Permit any Restricted Subsidiary (other than any
Restricted Subsidiary that is a Domestic Subsidiary Borrower or a
Subsidiary Guarantor) to create, incur, assume or suffer to exist
any Indebtedness, except:
(a) Indebtedness under this Agreement;
(b) Indebtedness outstanding on the date hereof and
listed on Schedule 10.2 (all of which Indebtedness described
in Part II of such Schedule will be repaid within 30 days of
the date of this Agreement);
(c) Indebtedness of a corporation which becomes a
Restricted Subsidiary after the date hereof, provided that (i)
such indebtedness existed at the time such corporation became
a Subsidiary and was not created in anticipation thereof and
(ii) immediately after giving effect to the acquisition of
such corporation by the Company no Default or Event of Default
shall have occurred and be continuing;
(d) Indebtedness secured by any Lien permitted by
subsection 10.3(g);
(e) Indebtedness of the Company's Subsidiary or
Subsidiaries in Denmark in an aggregate principal amount not
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exceeding $2,000,000 (or its equivalent in Danish Kroner) at
any time outstanding;
(f) additional Indebtedness not exceeding $5,000,000 in
aggregate principal amount at any one time outstanding (as to
all such Restricted Subsidiaries (other than any Restricted
Subsidiary that is a Domestic Subsidiary Borrower or a
Subsidiary Guarantor)); and
(g) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part,
of any Indebtedness referred to in the foregoing clauses (b),
(c) and (d) (other than such Indebtedness described in Part II
of Schedule 10.2); provided that no such extension, renewal or
replacement shall result in an increase in such Indebtedness.
10.3 Limitation on Liens. Create, incur, assume or
suffer to exist, or permit any Restricted Subsidiary to create,
incur, assume or suffer to exist, any Lien upon any of its
property, assets or revenues, whether now owned or hereafter
acquired, except for:
(a) Liens for taxes not yet due or which are being
contested in good faith by appropriate proceedings, provided
that adequate reserves with respect thereto are maintained on
the books of the Company or its Restricted Subsidiaries, as
the case may be, in conformity with GAAP (or, in the case of
Foreign Subsidiaries, generally accepted accounting principles
in effect from time to time in their respective jurisdictions
of incorporation);
(b) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business which are not overdue for a period
of more than 60 days or which are being contested in good
faith by appropriate proceedings;
(c) pledges or deposits in connection with workers'
compensation, unemployment insurance and other social security
legislation and deposits securing liability to insurance
carriers under insurance or self-insurance arrangements;
(d) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary
course of business;
(e) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of
business which, in the aggregate, are not substantial in
amount and which do not in any case materially detract from
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the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of the
Company or such Restricted Subsidiary;
(f) Liens in existence on the date hereof listed on
Schedule 10.2, provided that no such Lien is spread to cover
any additional property after the Closing Date and that the
amount of Indebtedness secured thereby is not increased;
(g) Liens securing Indebtedness of the Company or such
Restricted Subsidiaries incurred to finance the acquisition of
fixed or capital assets, provided that (i) such Liens shall be
created substantially simultaneously with the acquisition of
such fixed or capital assets, (ii) such Liens do not at any
time encumber any property other than the property financed by
such Indebtedness, (iii) the amount of Indebtedness secured
thereby is not increased and (iv) the principal amount of
Indebtedness secured by any such Lien shall at no time exceed
the fair value (as determined in good faith by the board of
directors of the Company) of such property at the time it was
acquired;
(h) Liens on the property or assets of a corporation
which becomes a Restricted Subsidiary after the date hereof
securing Indebtedness in existence at the time such
corporation became a Subsidiary, provided that (i) such Liens
existed at the time such corporation became a Subsidiary and
were not created in anticipation thereof, (ii) any such Lien
is not spread to cover any property or assets of such
corporation after the time such corporation becomes a
Subsidiary, and (iii) the amount of Indebtedness secured
thereby is not increased;
(i) Liens on the property or assets of a corporation
existing at the time such corporation is merged or
consolidated with or into the Company or a Restricted
Subsidiary or at the time of a sale of the properties and
assets of such corporation as an entirety or substantially as
an entirety to the Company or a Restricted Subsidiary, and
Liens on property or assets first acquired by the Company or
a
Restricted Subsidiary after the date of this Agreement,
provided that (A) no such Lien shall extend to or cover any
property other than the property initially subject thereto and
improvements thereto, and (B) the Indebtedness secured by each
such Lien is then permitted by this Agreement;
(j) Liens on inventory acquired by the Company or a
Restricted Subsidiary in the ordinary course of business
securing the payment to the seller of such inventory of the
purchase price thereof, provided, that such Liens encumber
only the inventory to which such purchase price relates and
such purchase price is payable in accordance with customary
trade terms;
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(k) Liens arising in connection with trade letters of
credit issued for the account of the Company or a Restricted
Subsidiary securing the reimbursement obligations in respect
of such letters of credit, provided, that such Liens encumber
only the property being acquired through payments made under
such letters of credit or the documents of title and shipping
and insurance documents relating to such property;
(l) Liens on intellectual property acquired by the
Company or a Restricted Subsidiary (such as software) securing
the obligation of the Company or such Restricted Subsidiary to
make royalty or similar payments to the seller of such
intellectual property, provided, that such Liens encumber only
the intellectual property to which such payments relate;
(m) Liens (not otherwise permitted hereunder) which
secure obligations not exceeding (as to the Company and all
Restricted Subsidiaries) $5,000,000;
(n) Liens on the Studer Assets securing the
reimbursement and related obligations of Studer in respect of
the Studer Letter of Credit; and
(o) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part,
of any Lien referred to in the foregoing clauses (f) through
(n), inclusive; provided that (i) no such extension, renewal
or replacement shall result in an increase in the liabilities
secured thereby and (ii) such extension, renewal or
replacement Lien shall be limited to all or a part of the same
property that secured the Lien so extended, renewed or
replaced (plus additions, accessions, replacements and
improvements to such property).
10.4 Limitation on Fundamental Changes. Enter into any
merger, consolidation or amalgamation, or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution), or
convey, sell, lease, assign, transfer or otherwise dispose of, all
or substantially all of its property, business or assets, or make
any material change in its present method of conducting business,
or permit any Restricted Subsidiary to do any of the foregoing,
except:
(a) any Restricted Subsidiary of the Company may be
merged or consolidated with or into the Company (provided that
the Company shall be the continuing or surviving corporation)
or with or into any one or more wholly owned Restricted
Subsidiaries of the Company (provided that the wholly owned
Restricted Subsidiary or Restricted Subsidiaries shall be the
continuing or surviving corporation);
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(b) any Restricted Subsidiary may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Company or any
other wholly owned Restricted Subsidiary of the Company; and
(c) the Company and its Restricted Subsidiaries may
consummate the transactions permitted by subsection 10.5.
10.5 Limitation on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of, or permit any Restricted
Subsidiary to convey, sell, lease, assign, transfer or otherwise
dispose of, any of its respective property, business or assets
(including, without limitation, receivables and leasehold
interests), whether now owned or hereafter acquired, or permit any
Restricted Subsidiary to issue or sell any shares of such
Restricted Subsidiary's Capital Stock to any Person other than the
Company or any wholly owned Restricted Subsidiary, except:
(a) the sale or other disposition of obsolete or worn
out property in the ordinary course of business;
(b) the sale of inventory in the ordinary course of
business;
(c) the sale or discount without recourse of accounts
receivable arising in the ordinary course of business in
connection with the compromise or collection thereof;
(d) the sale or other disposition of any other property
in the ordinary course of business, provided that (i) the
aggregate book value of all assets so sold or disposed of in
any period of twelve consecutive months shall not exceed 15%
of Consolidated Total Assets as at the beginning of such
twelve-month period and (ii) the aggregate book value of all
assets so sold or disposed of between July 1, 1994 and the
date of any determination thereof shall not exceed 25% of
Consolidated Total Assets as at the end of the fiscal year of
the Company most recently ended prior to such date of
determination;
(e) the Company may sell Pyle Industries, Inc. and the
Company or any Restricted Subsidiary may sell or otherwise
dispose of any Subsidiary other than a Restricted Subsidiary;
and
(f) any Restricted Subsidiary may sell, lease, transfer
or otherwise dispose of any or all of its assets (upon
voluntary liquidation or otherwise) to the Company or any
other wholly owned Restricted Subsidiary of the Company.
10.6 Limitation on Dividends. Declare or pay any
dividend (other than dividends payable solely in common stock of
the Company) on, or make any payment on account of, or set apart
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assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any
shares of any class of Capital Stock of the Company or any warrants
or options to purchase any such Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in
obligations of the Company or any Subsidiary, except that, so long
as no Event of Default has occurred and is continuing, or would be
continuing after giving effect thereto, the Company may pay
dividends on its Capital Stock, provided, that the total cash
amount of all such dividends paid between July 1, 1994 and the date
of any determination thereof does not exceed (i) $2,500,000 plus
(ii) 25% of the proceeds received by the Company after September
30, 1994 from the issuance and sale by the Company of its Capital
Stock, plus (iii) 25% of Consolidated Net Income for the period
from July 1, 1994 through the end of the fiscal quarter of the
Company most recently ended prior to the date of such
determination.
10.7 Limitation on Investments, Loans and Advances.
Make any advance, loan, extension of credit or capital contribution
to, or purchase any stock, bonds, notes, debentures or other
securities of or any assets constituting a business unit of, or
make any other investment in, any Person, or permit any Restricted
Subsidiary to do any of the foregoing, except:
(a) extensions of trade credit in the ordinary course of
business;
(b) investments in Cash Equivalents;
(c) Permitted Business Acquisitions;
(d) loans and advances to employees of the Company or
its Subsidiaries for travel, entertainment and relocation
expenses in the ordinary course of business in an aggregate
amount for the Company and its Subsidiaries not to exceed
$1,000,000 at any one time outstanding;
(e) investments by the Company in its Restricted
Subsidiaries and investments by Restricted Subsidiaries in the
Company and in other Restricted Subsidiaries; and
(f) investments by the Company or any Restricted
Subsidiary in any Subsidiary other than a Restricted
Subsidiary so long as after giving effect thereto there is no
violation of subsection 10.13.
10.8 Limitation on Optional Payments of Subordinated
Debt and Modifications of Subordination Provisions. At any time
when the Company is not considered Investment Grade (a) agree to
any amendment or other modification to any Subordinated Debt that
would shorten the maturity thereof, (b) amend the subordination
provisions of any Subordinated Debt or (c) make any optional
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payment or prepayment on or redemption or purchase of any
Subordinated Debt unless, after giving effect to such payment,
prepayment, redemption or purchase, the ratio of Consolidated
Senior Debt to Consolidated Capitalization is not greater than 35%.
10.9 Limitation on Transactions with Affiliates. Enter
into, or permit any Restricted Subsidiary to enter into, any
transaction, including, without limitation, any purchase, sale,
lease or exchange of property or the rendering of any service, with
any Affiliate (other than the Company or another Restricted
Subsidiary), unless such transaction is (a) otherwise permitted
under this Agreement, (b) in the ordinary course of the Company's
or such Restricted Subsidiary's business and (c) upon fair and
reasonable terms no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than it would obtain in
a comparable arm's length transaction with a Person which is not an
Affiliate.
10.10 Limitation on Sales and Leasebacks. Enter into,
or permit any Restricted Subsidiary to enter into, any arrangement
with any Person providing for the leasing by the Company or such
Restricted Subsidiary of real or personal property which is to be
sold or transferred by the Company or such Restricted Subsidiary to
such Person or to any other Person to whom funds have been or are
to be advanced by such Person on the security of such property or
rental obligations of the Company or such Restricted Subsidiary (a
"Sale and Lease-Back Transaction"), except for (i) Sale and Lease-
Back Transactions having an aggregate Value not exceeding
$10,000,000 or (ii) Sale and Lease-Back Transactions in respect of
assets acquired by the Company or a Restricted Subsidiary after
July 1, 1994, provided, that such Sale and Lease-Back Transaction
is consummated within 180 days after the acquisition by the Company
or a Restricted Subsidiary of the asset subject thereto.
10.11 Limitation on Changes in Fiscal Year. Permit the
fiscal year of the Company to end on a day other than June 30.
10.12 Limitation on Guarantee Obligations in respect of
Indebtedness of Subsidiaries other than Restricted Subsidiaries.
Create, incur or permit to exist, or permit any Restricted
Subsidiary to create, incur or permit to exist, any material
Guarantee Obligation in respect of any Indebtedness of any
Subsidiary other than a Restricted Subsidiary.
10.13 Limitation on Subsidiaries other than Restricted
Subsidiaries. Permit at any time more than 10% of consolidated
assets of the Company and its Subsidiaries to be held by any Person
other than the Company and the Restricted Subsidiaries, or permit
for any fiscal year more than the greater of (a) $10,000,000 and
(b) 15% of Consolidated Net Income, to be
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attributable to the earnings of any Person other than the Company
and the Restricted Subsidiaries.
10.14 Limitation on Guarantee Obligations. Permit the
aggregate outstanding amount of Guarantee Obligations of the
Company and its Subsidiaries, determined on a consolidated basis
(other than Guarantee Obligations permitted pursuant to subsection
10.12), to exceed, at any time, $5,000,000.
SECTION 11. GUARANTEES
11.1 Guarantees. (a) In order to induce the
Administrative Agent, the Co-Agent and the Lenders to execute and
deliver this Agreement and to make the Extensions of Credit
hereunder, and in consideration thereof:
(i) The Company hereby unconditionally and
irrevocably guarantees to the Administrative Agent and each
Lender and their respective successors and assigns, the prompt
and complete payment when due (whether at the stated maturity,
by acceleration or otherwise) of the Subsidiary Obligations,
and the Company further agrees to pay any and all reasonable
expenses which may be paid or incurred by the Administrative
Agent or any Lender in collecting any or all of the Subsidiary
Obligations and/or enforcing any rights under this Section 11
or under Subsidiary Obligations.
(ii) Each Domestic Subsidiary Borrower and each
Subsidiary Guarantor hereby unconditionally and irrevocably
guarantees to the Administrative Agent and each Lender and
their respective successors and assigns, the prompt and
complete payment when due (whether at the stated maturity, by
acceleration or otherwise) of the Obligations, and each
Domestic Subsidiary Borrower and each Subsidiary Guarantor
further agrees to pay any and all reasonable expenses which
may be paid or incurred by the Administrative Agent or any
Lender in collecting any or all of the Obligations and/or
enforcing any rights under this Section 11 or under the
Obligations.
(iii) Each Foreign Subsidiary Borrower hereby
unconditionally and irrevocably guarantees to the
Administrative Agent and each Lender and their respective
successors and assigns, the prompt and complete payment when
due (whether at the stated maturity, by acceleration or
otherwise) of the Foreign Subsidiary Obligations, and each
Foreign Subsidiary Borrower further agrees to pay any and all
reasonable expenses which may be paid or incurred by the
Administrative Agent or any Lender in collecting any or all of
the Foreign Subsidiary Obligations and/or enforcing any rights
against such Foreign Subsidiary Borrower under this Section 11
or under the Foreign Subsidiary Obligations.
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(b) Notwithstanding the foregoing, anything herein to
the contrary notwithstanding, the maximum liability of each
Domestic Subsidiary Borrower, Subsidiary Guarantor and Foreign
Subsidiary Borrower under this Section 11 shall in no event exceed
the amount of obligations which such Guarantor can incur under
applicable federal and state laws relating to the insolvency of
debtors, and the maximum liability of each Subsidiary Guarantor
under this Section 11 shall in no event exceed any limitations
imposed by applicable laws of the jurisdiction of organization of
such Subsidiary Guarantor on the amount of obligations which such
Guarantor can guarantee.
(c) Each Guarantor agrees that the Obligations
guaranteed by it pursuant to this Section 11 may at any time and
from time to time exceed the amount determined in accordance with
the foregoing Paragraph (b) of this subsection 11.1 with respect to
such Guarantor or with respect to all of the Guarantors without
impairing the obligations of such Guarantor under this Section 11
or affecting the rights and remedies of the Administrative Agent
and the Lenders hereunder.
(d) No payment or payments made by any Borrower, any of
the Guarantors, any other guarantor or any other Person or received
or collected by the Administrative Agent or any Lender from any
Borrower, any of the Guarantors, any other guarantor or any other
Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of any
Guarantor hereunder which shall, notwithstanding any such payment
or payments other than payments made by such Guarantor in respect
of the Obligations or payments received or collected from such
Guarantor in respect of the Obligations, remain liable for the
Obligations guaranteed by it hereunder up to the amount determined
with respect to such Guarantor in accordance with the foregoing
Paragraph (b) of this subsection 11.1 until the Obligations are
paid in full and the Commitments are terminated.
11.2 No Subrogation, Contribution, Reimbursement or
Indemnity. (a) Notwithstanding anything to the contrary in this
Agreement, the Company hereby irrevocably waives all rights which
may have arisen, or which may arise in the future, in connection
herewith to be subrogated to any of the rights (whether
contractual, under the Bankruptcy Code, including Section 509
thereof, under common law or otherwise) of the Lenders against any
Subsidiary Borrower or against any collateral security or guarantee
or right of offset held by the Administrative Agent or any Lender
for the payment of the Subsidiary Obligations. The Company hereby
further irrevocably waives all contractual, common law, statutory
or other rights of reimbursement, contribution, exoneration or
indemnity (or any similar right) from or against any Subsidiary
Borrower or any other Person which may have arisen in connection
with the guarantees contained in this Section 11.
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(b) So long as the Obligations remain outstanding, if
any amount shall be paid by or on behalf of any Subsidiary Borrower
to the Company on account of any of the rights waived in subsection
11.2, such amount shall be held by the Company in trust, segregated
from other funds of the Company, and shall, forthwith upon receipt
by the Company, be turned over to the Administrative Agent in the
exact form received by the Company (duly indorsed by the Company to
the Administrative Agent, if required), to be applied against the
Obligations, whether matured or unmatured, as provided in
subsection 6.3.
(c) The provisions of this subsection 11.2 shall survive
the termination of the guarantees contained in this Section 11 and
the payment in full of the Obligations and the termination of the
Commitments.
11.3 Modification of Obligations. Each of the
Guarantors hereby consents that, without the necessity of any
reservation of rights against it and without notice to or further
assent by it, any demand made by the Administrative Agent or any
Lender for payment of any of the Obligations guaranteed by such
Guarantor pursuant to this Section 11 may be rescinded by the
Administrative Agent or such Lender and any of such Obligations
continued, and such Obligations, or the liability of any other
party upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or such Lender and this
Agreement (other than the obligations specifically incurred by such
Guarantor as a Borrower or account party hereunder or as a
Guarantor under this Section 11), any Application, any Letter of
Credit, any collateral security document or other guarantee or
document in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the
Administrative Agent or such Lender may deem advisable from time to
time, and any collateral security or guarantee or right of offset
at any time held by the Administrative Agent or any Lender for the
payment of such Obligations may be sold, exchanged, waived,
surrendered or released, all without the necessity of any
reservations of rights against such Guarantor and without notice to
or further assent by such Guarantor (in respect of its guarantee
hereunder) which will remain bound hereunder notwithstanding any
such renewal, extension, supplement, termination, sale, exchange,
waiver, surrender or release. Neither the Administrative Agent nor
any Lender shall have any obligation to protect, secure, perfect or
insure any collateral security document or property subject thereto
at any time held as security for the Obligations. When making any
demand hereunder against a Guarantor or a Borrower, the
Administrative Agent or any Lender may, but shall be under no
obligation to, make a similar demand on any other Guarantor or
Borrower, and any failure by the Administrative Agent or such
Lender to make any such demand or to collect any payments from any
other Borrower or
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Guarantor or any such other guarantor or any release of any other
Guarantor, other Borrower or other guarantor shall not relieve the
Guarantor or the Company of its obligations and liabilities
hereunder, and shall not impair or affect the rights and remedies,
express or implied, or as a matter of law, of the Administrative
Agent or any Lender against such Guarantor or any Borrower. For
purposes of this subsection 10.3, the term "demand" shall include
the commencement and continuance of any legal proceedings.
11.4 Waiver. Each Guarantor hereby waives any and all
notice of the creation, renewal, extension or accrual of any of the
Obligations guaranteed by it pursuant to this Section 11 and notice
of or proof of reliance by the Administrative Agent or any Lender
upon the guarantees contained in this Section 11 or acceptance of
the guarantees contained in this Section 11, and such Obligations,
and any of them, shall conclusively be deemed to have been created,
contracted or incurred in reliance upon the guarantees contained in
this Section 11, and all dealings between the Borrowers or the
Guarantors and the Lenders shall likewise be conclusively presumed
to have been had or consummated in reliance upon the guarantees
contained in this Section 11. Each of the Guarantors hereby waives
diligence, presentment, protest, demand for payment and notice of
default or nonpayment and all other notices to or upon such
Guarantor with respect to the Obligations guaranteed by it pursuant
to this Section 11. This Section 11 shall be construed as
continuing, absolute and unconditional guarantees of payment
without regard to the validity, regularity or enforceability of
this Agreement, any Application, any Letter of Credit, any of the
Obligations, or any collateral security or guarantee therefor or
right of offset with respect thereto at any time or from time to
time held by the Administrative Agent or any Lender and without
regard to any defense, set-off or counterclaim which may at any
time be available to or be asserted by such Guarantor or any
Subsidiary Borrower against the Administrative Agent or any Lender,
or by any other circumstance whatsoever (with or without notice to
or knowledge of any Guarantor or any Subsidiary Borrower) (other
than payment in full of the Obligations) which constitutes, or
might be construed to constitute, an equitable or legal discharge
of any Borrower for the Obligations, or of any Guarantor under the
guarantees contained in this Section 11 in bankruptcy or in any
other instance, and the obligations and liabilities of the
Guarantors and the Borrowers hereunder shall not be conditioned or
contingent upon the pursuit by the Administrative Agent or any
Lender at any time of any right or remedy against any Borrower, any
Guarantor or any other Person which may be or become liable in
respect of all or any part of the Obligations or against any
collateral security or guarantee therefor or right of offset with
respect thereto. The guarantees contained in this Section 11 shall
remain in full force and effect and be binding in accordance with
and to the extent of their terms upon the Guarantors (and any
successors and assigns of either thereof) and shall inure to the
benefit of the Administrative Agent and the
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Lenders and their respective successors and assigns, until (subject
to subsection 11.5) all the Obligations and the obligations of the
Guarantors under this Section 11 shall have been satisfied by
payment in full, notwithstanding that from time to time during the
term of this Agreement the Borrowers may be free from any
Obligations.
11.5 Reinstatement. Each of the guarantees contained in
this Section 11 shall continue to be effective, or be reinstated,
as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored
or returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization
of any Borrower, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar
officer for, any Borrower or any substantial part of its property,
all as though such payments had not been made.
11.6 Payment of Obligations. Each of the Guarantors
hereby guarantees that the Obligations guaranteed by it hereunder
will be paid to the Person entitled thereto pursuant to the terms
of this Agreement at the applicable Payment Office without set-off
or counterclaim.
SECTION 12. EVENTS OF DEFAULT
If any of the following events shall occur and be
continuing:
(a) Any Borrower shall fail to pay any principal of any
Loan or any Reimbursement Obligation when due in accordance
with the terms thereof or hereof; or any Borrower shall fail
to pay any interest on any Loan, or any other amount payable
hereunder, within five days after any such interest or other
amount becomes due in accordance with the terms thereof or
hereof; or
(b) Any representation or warranty made or deemed made
by the Company or any other Loan Party herein or in any other
Loan Document or which is contained in any certificate,
document or financial or other statement furnished by it at
any time under or in connection with this Agreement shall
prove to have been incorrect in any material respect on or as
of the date made or deemed made; or
(c) The Company shall default in the observance or
performance of any agreement contained in Section 10, other
than Section 10.7 and 10.13; or
(d) Any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement
or any other Loan Document (other than as provided
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in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days (in
the case of any such default by the Company) or 30 days after
written notice thereof to such Loan Party (in the case of any
such default by any Loan Party other than the Company); or
(e) The Company or any of its Restricted Subsidiaries
shall (i) default in any payment of principal of or interest
on any Indebtedness (other than the Loans) or in the payment
of any Guarantee Obligation, beyond the period of grace (not
to exceed 30 days), if any, provided in the instrument or
agreement under which such Indebtedness or Guarantee
Obligation was created, if the aggregate amount of the
Indebtedness and/or Guarantee Obligations in respect of which
such default or defaults shall have occurred is at least
$5,000,000; or (ii) default in the observance or performance
of any other agreement or condition relating to any such
Indebtedness or Guarantee Obligation 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 beneficiary or beneficiaries of such Guarantee Obligation
(or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of
notice if required, such Indebtedness to become due prior to
its stated maturity or such Guarantee Obligation to become
payable; or
(f) (i) The Company or any of its Restricted
Subsidiaries shall commence any case, proceeding or other
action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to
have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up,
liquidation, dissolution, composition or other relief with
respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar
official for it or for all or any substantial part of its
assets, or the Company or any of its Restricted Subsidiaries
shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the
Company or any of its Restricted Subsidiaries any case,
proceeding or other action of a nature referred to in clause
(i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Company or any
of its Restricted Subsidiaries any case, proceeding or other
action seeking issuance of a warrant of attachment, execution,
distraint or similar process against
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all or any substantial part of its assets which results in the
entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal
within 60 days from the entry thereof; or (iv) the Company
shall take any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the acts
set forth in clause (i), (ii), or (iii) above; or (v) the
Company shall generally not, or shall be unable to, or shall
admit in writing its inability to, pay its debts as they
become due; or
(g) (i) Any Person shall engage in any "prohibited
transaction" (as defined in Section 406 of ERISA or
Section 4975 of the Code) involving any Plan, (ii) any
"accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any
Plan or any Lien in favor of the PBGC or a Plan shall arise on
the assets of the Company or any Commonly Controlled Entity,
(iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement
of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of
ERISA, (iv) any Single Employer Plan shall terminate for
purposes of Title IV of ERISA, (v) the Company or any Commonly
Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in
connection with a withdrawal from, or the Insolvency or
Reorganization of, a Multiemployer Plan or (vi) any other
event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (vi) above, such
event or condition, together with all other such events or
conditions, if any, could reasonably be expected to have a
Material Adverse Effect; or
(h) One or more final judgments or decrees of a court
shall be entered against the Company or any of its Restricted
Subsidiaries for the payment of money in an aggregate amount
(to the extent not adequately covered by insurance) of
$5,000,000 or more, and all such judgments or decrees shall
not have been vacated, discharged, stayed or bonded pending
appeal within 60 days from the entry thereof; or
(i) Any Change of Control shall occur;
then, and in any such event, (A) if such event is an Event of
Default specified in clause (i) or (ii) of paragraph (f) of this
Section with respect to the Company, automatically the Commitments
shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under
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this Agreement (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents
required thereunder) shall immediately become due and payable, and
(B) if such event is any other Event of Default, either or both of
the following actions may be taken: (i) with the consent of the
Majority Lenders, the Administrative Agent may, or upon the request
of the Majority Lenders, the Administrative Agent shall, by notice
to the Company declare the Commitments to be terminated forthwith,
whereupon the Commitments shall immediately terminate; and (ii)
with the consent of the Majority Lenders, the Administrative Agent
may, or upon the request of the Majority Lenders, the
Administrative Agent shall, by notice to the Company, declare the
Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including, without limitation,
all amounts of L/C Obligations, whether or not the beneficiaries of
the then outstanding Letters of Credit shall have presented the
documents required thereunder) to be due and payable forthwith,
whereupon the same shall immediately become due and payable. After
all Letters of Credit shall have expired or been fully drawn upon,
all Reimbursement Obligations shall have been satisfied and all
other obligations of the Borrowers hereunder shall have been paid
in full, the excess, if any, of the amount so paid by the Company
in respect of outstanding Letters of Credit over the amount
required to satisfy the Reimbursement Obligations in respect
thereof and all other obligations of the Company in respect
thereof, shall be returned to the Company.
Except as expressly provided above in this Section,
presentment, demand, protest and all other notices of any kind are
hereby expressly waived.
SECTION 13. THE ADMINISTRATIVE AGENT;
THE CO-AGENT AND THE ARRANGER
13.1 Appointment. Each Lender hereby irrevocably
designates and appoints the Administrative Agent as the agent of
such Lender under this Agreement and the other Loan Documents, and
each Lender irrevocably authorizes the Administrative Agent, in
such capacity, to take such action on its behalf under the
provisions of this Agreement and the other Loan Documents and to
exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent by the terms of this
Agreement and the other Loan Documents, together with such other
powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist
against the Administrative Agent.
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13.2 Delegation of Duties. The Administrative Agent may
execute any of its duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be
entitled to advice of counsel concerning all matters pertaining to
such duties. 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.
13.3 Exculpatory Provisions. Neither the Administrative
Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or
in connection with this Agreement or any other Loan Document
(except for its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to any of the Lenders
for any recitals, statements, representations or warranties made by
any Loan Party or any officer thereof contained in this Agreement
or any other Loan Document or in any certificate, report, statement
or other document referred to or provided for in, or received by
the Administrative Agent under or in connection with, this
Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of any Loan
Party to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions
of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Loan Party.
13.4 Reliance by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any Note, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without
limitation, counsel to the Company), independent accountants and
other experts selected by the Administrative Agent. The
Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed
with the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Lenders as it
deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from
acting, under this Agreement and the other Loan Documents in
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accordance with a request of the Majority Lenders, and such request
and any action taken or failure to act pursuant thereto shall be
binding upon all the Lenders and all future holders of the Loans.
13.5 Notice of Default. The Administrative Agent shall
not be deemed to have knowledge or notice of the occurrence of any
Default or Event of Default hereunder unless the Administrative
Agent has received notice from a Lender or the Company referring to
this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event
that the Administrative Agent receives such a notice, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the
Majority Lenders; provided that unless and until the Administrative
Agent shall have received such directions, the Administrative Agent
may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the
Lenders.
13.6 Non-Reliance on Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the
Administrative Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the
affairs of any Loan Party, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent that it
has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of
and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan
Parties and made its own decision to make its Loans hereunder and
enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan
Documents, and to make such investigation as it deems necessary to
inform itself as to the business, operations, property, financial
and other condition and creditworthiness of the Borrower. Except
for notices, reports and other documents expressly required to be
furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning
the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of any Loan Party which
may come into the possession of the Administrative Agent or any of
its
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officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
13.7 Indemnification. The Lenders agree to indemnify
the Administrative Agent in its capacity as such (to the extent not
reimbursed by the Borrowers and without limiting the obligation of
the Borrowers to do so), ratably according to their respective
Commitment Percentages in effect on the date on which
indemnification is sought (or, if indemnification is sought after
the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with
their Commitment Percentages immediately prior to such date), from
and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment
of the Loans) be imposed on, incurred by or asserted against the
Administrative Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any
documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or
omitted by the Administrative Agent under or in connection with any
of the foregoing; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Administrative Agent's
gross negligence or willful misconduct. The agreements in this
subsection shall survive the payment of the Loans and all other
amounts payable hereunder.
13.8 Administrative Agent in Its Individual Capacity.
The Administrative Agent and its Affiliates may make loans to,
accept deposits from and generally engage in any kind of business
with the Loan Parties as though the Administrative Agent were not
the Administrative Agent hereunder and under the other Loan
Documents. With respect to the Loans made by it, the
Administrative Agent shall have the same rights and powers under
this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the Administrative Agent,
and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
13.9 Successor Administrative Agent. The Administrative
Agent may resign as Administrative Agent upon 10 days' notice to
the Lenders. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan
Documents, then the Majority Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent
shall, unless an Event of Default shall be outstanding, be approved
by the Company (such approval not to be unreasonably withheld),
whereupon such successor agent shall succeed to the rights, powers
and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such
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successor agent effective upon such appointment and approval, and
the former Administrative Agent's rights, powers and duties as
Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent
or any of the parties to this Agreement or any holders of the
Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 13 shall inure
to its benefit as to any actions taken or omitted to be taken by
it while it was Administrative Agent under this Agreement and the
other Loan Documents.
13.10 Co-Agent and Arranger. The Co-Agent and the
Arranger, in such respective capacities, shall have no duties or
responsibilities, and shall incur no obligations or liabilities,
under this Agreement or the other Loan Documents but shall
nevertheless be entitled to all of the indemnities and other
protections afforded to the Administrative Agent under this Section
13.
SECTION 14. MISCELLANEOUS
14.1 Amendments and Waivers Generally; Amendments to
Schedules II and III. (a) Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions
of this subsection. The Majority Lenders may, or, with the written
consent of the Majority Lenders, the Administrative Agent may, from
time to time, (i) enter into with the Company written amendments,
supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or the
other Loan Documents or changing in any manner the rights of the
Lenders or of the Loan Parties hereunder or thereunder or (ii)
waive, on such terms and conditions as the Majority Lenders or the
Administrative Agent, as the case may be, may specify in such
instrument, any of the requirements of this Agreement or the other
Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall (A) reduce the amount
or extend the scheduled date of maturity of any Loan or of any
installment thereof, or reduce the stated rate of any interest or
fee payable hereunder or extend the scheduled date of any payment
thereof or increase the amount or extend the expiration date of any
Lender's Commitments, in each case without the consent of each
Lender affected thereby, or (B) amend, modify or waive any
provision of this subsection or reduce the percentage specified in
the definition of Majority Lenders, or consent to the assignment or
transfer by any Loan Party of any of its rights and obligations
under this Agreement and the other Loan Documents, or release any
Loan Party from its obligations under Section 11 (other than in
connection with any disposition of such Loan Party permitted by
this Agreement or any deletion of such Loan Party as a Restricted
Subsidiary otherwise permitted by this Agreement), in each case
without the written consent of all
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the Lenders, or (C) amend, modify or waive any provision of Section
13 without the written consent of the then Administrative Agent.
Any such waiver and any such amendment, supplement or modification
shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Administrative Agent and
all future holders of the Loans. In the case of any waiver, the
Loan Parties, the Lenders and the Administrative Agent shall be
restored to their former positions and rights hereunder and under
the other Loan Documents, and any Default or Event of Default
waived shall be deemed to be cured and not continuing; no such
waiver shall extend to any subsequent or other Default or Event of
Default or impair any right consequent thereon.
(b) Schedules II, III and IV may be amended as follows:
(i) Schedule II will be amended to add Subsidiaries
of the Company as additional Domestic Subsidiary Borrowers,
Foreign Subsidiary Borrowers or Subsidiary Guarantors, as the
case may be, upon (A) execution and delivery by the Company,
such additional Domestic Subsidiary Borrowers, Foreign
Subsidiary Borrowers or Subsidiary Guarantors, as the case may
be, and the Administrative Agent and, in the case of any such
amendment adding a Subsidiary as a Subsidiary Borrower only,
the Majority Lenders, of a Joinder Agreement providing for
such to become Domestic Subsidiary Borrowers, Foreign
Subsidiary Borrowers or Subsidiary Guarantors, as the case may
be, and (B) delivery to the Administrative Agent of (1)
corporate resolutions, other corporate documents and legal
opinions in respect of such additional Domestic Subsidiary
Borrowers, Foreign Subsidiary Borrowers or Subsidiary
Guarantors, as the case may be, substantially equivalent to
comparable documents delivered on the Closing Date in respect
of the Domestic Subsidiary Borrowers, Foreign Subsidiary
Borrowers or Subsidiary Guarantors, as the case may be, party
to this Agreement on the Closing Date (provided, that such
legal opinions in respect of Domestic Subsidiary Borrowers and
Subsidiary Guarantors may be delivered by the Company's
General Counsel) and (2) such other documents with respect
thereto as the Administrative Agent shall reasonably request.
Each such Subsidiary so added shall automatically become a
Restricted Subsidiary.
(ii) Schedule II will be amended to remove any
Subsidiary as a Subsidiary Borrower upon execution and
delivery by the Company of a Schedule Amendment providing for
such amendment.
(iii) Schedule III will be amended to designate
other Lenders as additional or replacement Swing Line Lenders
or additional Issuing Banks, and add administrative
information (including the Swing Line Rate definition) with
respect
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thereto, upon execution and delivery by the Company, the
Administrative Agent and such additional or replacement Swing
Line Lender or additional Issuing Bank, as the case may be, of
a Schedule Amendment providing for such amendment. In the
case of any replacement of a Swing Line Lender pursuant to a
Schedule Amendment, the existing Swing Line Lender replaced
pursuant thereto shall cease to be a Swing Line Lender upon
the effectiveness of such Schedule Amendment and the repayment
of all Swing Line Loans owning to such replaced Swing Line
Lender.
(iv) Schedule III will be amended to change
administrative information (including the Swing Line Rate
definition) with respect to Swing Line Lenders or Issuing
Banks, upon execution and delivery by the Company, the
Administrative Agent and such Swing Line Lender or Issuing
Bank, as the case may be, of a Schedule Amendment providing
for such amendment.
(v) Schedule IV will be amended to change
administrative information contained therein (other than any
interest rate definition, Funding Time, Payment Time or notice
time contained therein), upon execution and delivery by the
Company and the Administrative Agent of a Schedule Amendment
providing for such amendment.
(vi) Schedule IV will be amended to conform any
Funding Time, Payment Time or notice time contained therein to
then-prevailing market practices, upon execution and delivery
by the Company, the Majority Lenders and the Administrative
Agent of a Schedule Amendment providing for such amendment.
(vii) Schedule IV will be amended to change any
interest rate definition contained therein or to add
additional Available Foreign Currencies (and related interest
rate definitions and administrative information), upon
execution and delivery by the Company, all the Lenders and the
Administrative Agent of a Schedule Amendment providing for
such amendment.
14.2 Notices. All notices, requests and demands to or
upon the respective parties hereto to be effective shall be in
writing (including by facsimile transmission), and, unless
otherwise expressly provided herein, shall be deemed to have been
duly given or made when delivered, or 5 days after being deposited
in the mail, postage prepaid, or, in the case of telecopy notice,
when received, addressed as follows in the case of the Loan Parties
and the Administrative Agent, and as set forth in Schedule I in the
case of the other parties hereto, or to such other address as may
be hereafter notified by the respective parties hereto:
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Any Loan Party: Harman International
Industries, Incorporated
1101 Pennsylvania Avenue, N.W.
Suite 1010
Washington, D.C. 20004
Attention: Mr. Bernard A. Girod,
President
Fax: (202) 393-3064
The Administrative Agent: Chemical Bank
140 East 45th Street
New York, New York 10017
Attention: James Halka
Fax: 212-622-0854
provided that any Notice of Borrowing, Notice of Competitive
Advance Loan, Notice of Continuation, Notice of Conversion, Notice
of Swing Line Outstandings or Notice of Swing Line Refunding, or
any notice pursuant to subsections 2.4, 2.5 or 5.2 shall not be
effective until received.
14.3 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the
Administrative Agent or any Lender, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall operate
as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
14.4 Survival of Representations and Warranties. All
representations and warranties made hereunder, in the other Loan
Documents and in any document, certificate or statement delivered
pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the
Loans hereunder.
14.5 Payment of Expenses and Taxes. The Company agrees
(a) to pay or reimburse the Administrative Agent for all its
reasonable out-of-pocket costs and expenses incurred in connection
with the development, preparation and execution of, and any
amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of
the transactions contemplated hereby and thereby, including,
without limitation, the reasonable fees and disbursements of
counsel to the Administrative Agent, (b) to pay or reimburse each
Lender and the Administrative Agent for all its costs and expenses
incurred in connection with the enforcement or preservation of any
rights under this Agreement, the other Loan
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Documents and any such other documents, including, without
limitation, the fees and disbursements of counsel to each Lender
and of counsel to the Administrative Agent, (c) to pay, indemnify,
and hold each Lender and the Administrative Agent harmless from,
any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined
to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions
contemplated by, or any amendment, supplement or modification of,
or any waiver or consent under or in respect of, this Agreement,
the other Loan Documents and any such other documents, and (d) to
pay, indemnify, and hold the Administrative Agent and each Lender
(each, an "indemnified person") harmless from and against any and
all liabilities, obligations, losses, damages, judgments,
penalties, costs, expenses or disbursements of any kind or nature
whatsoever arising out of claims, actions, suits or proceedings
brought by third parties with respect to the execution, delivery,
enforcement, performance and administration of this Agreement or
the use of the proceeds of the Extensions of Credit (all the
foregoing, collectively, the "indemnified liabilities"), provided,
that the Company shall have no obligation hereunder to any
indemnified person with respect to indemnified liabilities arising
from (i) the gross negligence or willful misconduct of such
indemnified person or (ii) legal proceedings commenced against such
indemnified person by any security holder or creditor thereof
arising out of and based upon rights afforded any such security
holder or creditor solely in its capacity as such. The agreements
in this subsection shall survive repayment of the Loans and all
other amounts payable hereunder.
14.6 Successors and Assigns; Participations and
Assignments. (a) This Agreement shall be binding upon and inure
to the benefit of the Loan Parties, the Lenders, the Administrative
Agent and their respective successors and assigns, except that no
Loan Party may assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each
Lender.
(b) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law,
at any time sell to one or more banks or other entities
("Participants") participating interests in any Loan owing to such
Lender, any Commitment of such Lender or any other interest of such
Lender hereunder and under the other Loan Documents. In the event
of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the
other parties to this Agreement shall remain unchanged, such Lender
shall remain solely responsible for the performance thereof, such
Lender shall remain the holder of any such Extension of Credit for
all purposes under this Agreement and the other Loan Documents, and
the Borrowers and the Administrative Agent shall continue to deal
solely and directly
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<PAGE> 80
with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. The
Borrowers agree that if amounts outstanding under this Agreement
are due or unpaid, or shall have been declared or shall have become
due and payable upon the occurrence of an Event of Default, each
Participant shall, to the maximum extent permitted by applicable
law, be deemed to have the right of setoff in respect of its
participating interest in amounts owing under this Agreement to the
same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement, provided
that, in purchasing such participating interest, such Participant
shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in subsection 14.7(a) as fully as if
it were a Lender hereunder. The Borrowers also agree that each
Participant shall be entitled to the benefits of subsections 6.5,
6.6 and 6.7 with respect to its participation in the Commitments
and the Loans outstanding from time to time as if it were a Lender;
and provided, further, that no Participant shall be entitled to
receive any greater amount pursuant to any such subsection than the
transferor Lender would have been entitled to receive in respect of
the amount of the participation transferred by such transferor
Lender to such Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable law,
at any time and from time to time assign to any Lender or any
affiliate thereof or, with the consent of the Company and the
Administrative Agent (which in each case shall not be unreasonably
withheld), to an additional bank or financial institution ("an
Assignee") all or any part of its rights and obligations under this
Agreement and the other Loan Documents pursuant to an Assignment
and Acceptance executed by such Assignee, such assigning Lender
(and, in the case of an Assignee that is not then a Lender or an
affiliate thereof, by the Company and the Administrative Agent) and
delivered to the Administrative Agent for its acceptance and
recording in the Register, provided that, in the case of any such
assignment to an additional bank or financial institution, the
aggregate amount of the Commitment being assigned and, if such
assignment is of less than all of the rights and obligations of the
assigning Lender, the aggregate amount of the Commitment remaining
with the assigning Lender are each not less than $5,000,000 (or
such lesser amount as may be agreed to by the Company and the
Administrative Agent). Upon such execution, delivery, acceptance
and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee
thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations of
a Lender hereunder with a Commitment as set forth therein, and (y)
the assigning Lender thereunder shall, to the extent provided in
such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning
Lender's
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<PAGE> 81
rights and obligations under this Agreement, such assigning Lender
shall cease to be a party hereto). Notwithstanding any provision
of this paragraph (c) and paragraph (e) of this subsection, the
consent of the Company shall not be required for any assignment
which occurs at any time when any of the events described in
Section 12(f) shall have occurred and be continuing.
(d) The Administrative Agent shall maintain at the
address of the Administrative Agent referred to in subsection 14.2
a copy of each Assignment and Acceptance delivered to it and a
register (the "Register") for the recordation of the names and
addresses of the Lenders and the Commitments of, and principal
amounts of the Committed Rate Loans owing by each Borrower to, each
Lender from time to time. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Borrowers,
the Administrative Agent and the Lenders shall treat each Person
whose name is recorded in the Register as the owner of a Committed
Rate Loan or other obligation hereunder as the owner thereof for
all purposes of this Agreement and the other Loan Documents,
notwithstanding any notice to the contrary. Any assignment of any
Committed Rate Loan or other obligation hereunder shall be
effective only upon appropriate entries with respect thereto being
made in the Register. 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) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an Assignee (and, in the case
of an Assignee that is not then a Lender or an affiliate thereof,
by the Company and the Administrative Agent) together with payment
to the Administrative Agent of a registration and processing fee of
$2,500, the Administrative Agent shall (i) promptly accept such
Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the
Lenders and the Company.
(f) The Company authorizes each Lender to disclose to
any Participant or Assignee (each, a "Transferee") and any
prospective Transferee, subject to the provisions of subsection
14.17, any and all financial information in such Lender's
possession concerning the Company and its Affiliates which has been
delivered to such Lender by or on behalf of the Company pursuant to
this Agreement or which has been delivered to such Lender by or on
behalf of the Company in connection with such Lender's credit
evaluation of the Company and its Affiliates prior to becoming a
party to this Agreement, provided, that the Lenders shall take such
steps as reasonably necessary to ensure that confidential
information will be treated in a confidential manner as required by
subsection 14.17.
(g) For avoidance of doubt, the parties to this
Agreement acknowledge that the provisions of this subsection
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<PAGE> 82
concerning assignments of Loans relate only to absolute assignments
and that such provisions do not prohibit assignments creating
security interests, including, without limitation, any pledge or
assignment by a Lender of any Loan to any Federal Reserve Bank in
accordance with applicable law.
14.7 Adjustments; Set-off. (a) If any Lender (a
"benefitted Lender") shall at any time receive any payment of all
or part of its Loans or other Obligations then due and owing, or
interest thereon, or receive any collateral in respect thereof
(whether voluntarily or involuntarily, by set-off, pursuant to
events or proceedings of the nature referred to in Section 12(f),
or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such
other Lender's Loans or other Obligations then due and owing, or
interest thereon, such benefitted Lender shall purchase for cash
from the other Lenders a participating interest in such portion of
each such other Lender's Loans or other Obligations, or shall
provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause
such benefitted Lender to share the excess payment or benefits of
such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted
Lender, such purchase shall be rescinded, and the purchase price
and benefits returned, to the extent of such recovery, but without
interest.
(b) In addition to any rights and remedies of the
Lenders provided by law, each Lender shall have the right, without
prior notice to any Borrower, any such notice being expressly
waived by the Borrowers to the extent permitted by applicable law,
upon any amount becoming due and payable by any Borrower hereunder
(whether at the stated maturity, by acceleration or otherwise) to
set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect,
absolute or contingent, matured or unmatured, at any time held or
owing by such Lender or any branch or agency thereof to or for the
credit or the account of such Borrower. Each Lender agrees
promptly to notify such Borrower and the Administrative Agent after
any such set-off and application made by such Lender, provided that
the failure to give such notice shall not affect the validity of
such set-off and application.
14.8 Power of Attorney. Each Subsidiary Borrower and
Subsidiary Guarantor hereby grants to the Company an irrevocable
power of attorney to act as its attorney-in-fact with regard to
matters relating to this Agreement, the Applications and each other
Loan Document, including, without limitation, execution and
delivery of any amendments, supplements, waivers or other
modifications hereto or thereto, receipt of any notices hereunder
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<PAGE> 83
or thereunder and receipt of service of process in connection
herewith or therewith. Each Subsidiary Borrower and Subsidiary
Guarantor hereby explicitly acknowledges that the Administrative
Agent and each Lender has executed and delivered this Agreement and
each other Loan Document to which it is a party, and has performed
its obligations under this Agreement and each other Loan Document
to which it is a party, in reliance upon the irrevocable grant of
such power of attorney pursuant to this subsection 14.8.
14.9 Judgment. (a) If for the purpose of obtaining
judgment in any court it is necessary to convert a sum due
hereunder in one currency into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that
the rate of exchange used shall be that at which in accordance with
normal banking procedures the Administrative Agent could purchase
the first currency with such other currency on the Business Day
preceding the day on which final judgment is given.
(b) The obligation of any Borrower or Guarantor in
respect of any sum due to any Lender or the Administrative Agent
hereunder shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than that in which such sum is
denominated in accordance with the applicable provisions of this
Agreement (the "Agreement Currency"), be discharged only to the
extent that on the Business Day following receipt by such Lender or
the Administrative Agent (as the case may be) of any sum adjudged
to be so due in the Judgment Currency such Lender or the
Administrative Agent (as the case may be) may in accordance with
normal banking procedures purchase the Agreement Currency with the
Judgment Currency; if the amount of the Agreement Currency so
purchased is less than the sum originally due to such Lender or the
Administrative Agent (as the case may be) in the Agreement
Currency, such Borrower or Guarantor (as the case may be) agrees,
as a separate obligation and notwithstanding any such judgment, to
indemnify such Lender or the Administrative Agent (as the case may
be) against such loss, and if the amount of the Agreement Currency
so purchased exceeds the sum originally due to any Lender or the
Administrative Agent (as the case may be), such Lender or the
Administrative Agent (as the case may be) agrees to remit to such
Borrower or Guarantor (as the case may be) such excess.
14.10 Counterparts. This Agreement may be executed by
one or more of the parties to this Agreement on any number of
separate counterparts (including by facsimile transmission), and
all of said counterparts taken together shall be deemed to
constitute one and the same instrument. A set of the copies of
this Agreement signed by all the parties shall be lodged with the
Company and the Administrative Agent.
14.11 Severability. Any provision of this Agreement
which is prohibited or unenforceable in any jurisdiction shall,
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<PAGE> 84
as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in
any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
14.12 Integration. This Agreement and the other Loan
Documents represent the agreement of the Loan Parties, the
Administrative Agent and the Lenders with respect to the subject
matter hereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any
Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
14.13 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK.
14.14 Submission To Jurisdiction; Waivers. Each
Borrower and each Subsidiary Guarantor hereby irrevocably and
unconditionally:
(a) submits for itself and its property in any legal
action or proceeding relating to this Agreement and the other
Loan Documents to which it is a party, or for recognition and
enforcement of any judgement in respect thereof, to the
non-exclusive general jurisdiction of the Courts of the State
of New York, the courts of the United States of America for
the Southern District of New York, and appellate courts from
any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may
now or hereafter have to the venue of any such action or
proceeding in any such court or that such action or proceeding
was brought in an inconvenient court and agrees not to plead
or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by
registered or certified mail (or any substantially similar
form of mail), postage prepaid, to the Company at its address
set forth in subsection 14.2 or at such other address of which
the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law
or shall limit the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law,
any right it may have to claim or recover in any legal
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<PAGE> 85
action or proceeding referred to in this subsection any
special, exemplary, punitive or consequential damages.
14.15 Acknowledgements. Each Borrower and each
Subsidiary Guarantor hereby acknowledges that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan
Documents;
(b) neither the Administrative Agent nor any Lender has
any fiduciary relationship with or duty to such Borrower or
Subsidiary Guarantor arising out of or in connection with this
Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one
hand, and the Borrowers, on the other hand, in connection
herewith or therewith is solely that of debtor and creditor;
and
(c) no joint venture is created hereby or by the other
Loan Documents or otherwise exists by virtue of the
transactions contemplated hereby among the Lenders or among
the Borrowers and the Lenders.
14.16 WAIVERS OF JURY TRIAL. THE BORROWERS, THE
SUBSIDIARY GUARANTORS, THE ADMINISTRATIVE AGENT AND THE LENDERS
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
14.17 Confidentiality. Each Lender agrees to keep
confidential all non-public information provided to it by the
Company pursuant to this Agreement that is designated by the
Borrower in writing as confidential; provided that nothing herein
shall prevent any Lender from disclosing any such information (i)
to the Administrative Agent or any other Lender, (ii) to any
Transferee which receives such information having been made aware
of the confidential nature thereof, (iii) to its employees,
directors, agents, attorneys, accountants and other professional
advisors, (iv) upon the request or demand of any Governmental
Authority having jurisdiction over such Lender, (v) in response to
any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (vi)
which has been publicly disclosed other than in breach of this
Agreement, or (vii) in connection with the exercise of any remedy
hereunder.
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<PAGE> 86
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
HARMAN INTERNATIONAL INDUSTRIES,
INCORPORATED
By: /s/ Sandra B. Robinson
----------------------
Sandra B. Robinson
Vice President - Financial
Operations
CHEMICAL BANK,
as Administrative Agent and
as a Lender
By:
------------------------
Title:
CHEMICAL SECURITIES INC., as
Arranger
By:
-------------------------
Title:
NATIONSBANK OF NORTH CAROLINA, N.A.
as Co-Agent
By:
--------------------------
Title:
105
<PAGE> 83
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
HARMAN INTERNATIONAL INDUSTRIES,
INCORPORATED
By:
----------------------
Sandra B. Robinson
Vice President - Financial
Operations
CHEMICAL BANK,
as Administrative Agent and
as a Lender
By: /s/ Andrew Ackerman
------------------------
Title:
CHEMICAL SECURITIES INC., as
Arranger
By:
-------------------------
Title:
NATIONSBANK OF NORTH CAROLINA, N.A.
as Co-Agent
By:
--------------------------
Title:
106
<PAGE> 83
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
HARMAN INTERNATIONAL INDUSTRIES,
INCORPORATED
By:
----------------------
Sandra B. Robinson
Vice President - Financial
Operations
CHEMICAL BANK,
as Administrative Agent and
as a Lender
By:
------------------------
Title:
CHEMICAL SECURITIES INC., as
Arranger
By: Elizabeth C. Chow
-------------------------
Title: Managing Director
NATIONSBANK OF NORTH CAROLINA, N.A.
as Co-Agent
By:
--------------------------
Title:
107
<PAGE> 83
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above
written.
HARMAN INTERNATIONAL INDUSTRIES,
INCORPORATED
By:
----------------------
Sandra B. Robinson
Vice President - Financial
Operations
CHEMICAL BANK,
as Administrative Agent and
as a Lender
By:
------------------------
Title:
CHEMICAL SECURITIES INC., as
Arranger
By:
-------------------------
Title:
NATIONSBANK OF NORTH CAROLINA, N.A.
as Co-Agent
By: /s/ Sara Parsons
--------------------------
Title: Vice President
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<PAGE> 85
SOCIETE GENERALE
By: /s/ Salvatore Galatioto
--------------------------
Title: Vice President
CITIBANK, N.A.
By:
--------------------------
Title:
BANK OF MONTREAL
By:
--------------------------
Title:
GIROCREDIT BANK
By:
--------------------------
Title:
THE BANK OF NOVA SCOTIA
By:
--------------------------
Title:
MIDLAND BANK PLC
By:
--------------------------
Title:
109
<PAGE> 85
SOCIETE GENERALE
By:
--------------------------
Title:
CITIBANK, N.A.
By: /s/ Barbara A. Cohen
--------------------------
Title: Vice President
BANK OF MONTREAL
By:
--------------------------
Title:
GIROCREDIT BANK
By:
--------------------------
Title:
THE BANK OF NOVA SCOTIA
By:
--------------------------
Title:
MIDLAND BANK PLC
By:
--------------------------
Title:
110
<PAGE> 85
SOCIETE GENERALE
By:
--------------------------
Title:
CITIBANK, N.A.
By:
--------------------------
Title:
BANK OF MONTREAL
By: /s/ Thomas Peer
--------------------------
Title: Director
GIROCREDIT BANK
By:
--------------------------
Title:
THE BANK OF NOVA SCOTIA
By:
--------------------------
Title:
MIDLAND BANK PLC
By:
--------------------------
Title:
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<PAGE> 84
CHEMICAL BANK
By:
--------------------------
Title:
NATIONSBANK OF NORTH CAROLINA,
N.A.
By:
--------------------------
Title:
COMMERZBANK AG, LOS ANGELES BRANCH
By: /s/ Robert Hochhalter /s/ Werner Schmidbauer
-----------------------------------------------
Title: SVP & Manager Vice President
THE HONG KING AND SHANGHAI BANKING
CORPORATION LIMITED
By:
--------------------------
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
--------------------------
Title:
THE MITSUBISHI BANK, LTD.
By:
--------------------------
Title:
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<PAGE> 84
CHEMICAL BANK
By:
--------------------------
Title:
NATIONSBANK OF NORTH CAROLINA,
N.A.
By:
--------------------------
Title:
COMMERZBANK AG, LOS ANGELES BRANCH
By:
----------------------------
Title:
THE HONG KING AND SHANGHAI BANKING
CORPORATION LIMITED
By:
--------------------------
Title:
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Dale R. Mason
--------------------------
Title: Vice President
THE MITSUBISHI BANK, LTD.
By:
--------------------------
Title:
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<PAGE> 84
CHEMICAL BANK
By:
--------------------------
Title:
NATIONSBANK OF NORTH CAROLINA,
N.A.
By:
--------------------------
Title:
COMMERZBANK AG, LOS ANGELES BRANCH
By:
----------------------------
Title:
THE HONG KING AND SHANGHAI BANKING
CORPORATION LIMITED
By:
--------------------------
Title:
PNC BANK, NATIONAL ASSOCIATION
By:
--------------------------
Title:
THE MITSUBISHI BANK, LTD.
By: /s/ Frank H. Madden
--------------------------
Title: Joint General Manager
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<PAGE> 85
SOCIETE GENERALE
By:
--------------------------
Title:
CITIBANK, N.A.
By:
--------------------------
Title:
BANK OF MONTREAL
By:
--------------------------
Title:
GIROCREDIT BANK
By:
--------------------------
Title:
THE BANK OF NOVA SCOTIA
By: /s/ James Trimble
--------------------------
Title: Snr. Rel. Mgr.
MIDLAND BANK PLC
By:
--------------------------
Title:
115
<PAGE> 85
SOCIETE GENERALE
By:
--------------------------
Title:
CITIBANK, N.A.
By:
--------------------------
Title:
BANK OF MONTREAL
By:
--------------------------
Title:
GIROCREDIT BANK
By: /s/ Richard Stone /s/ Sharad Gupta
------------------------------------
Title:
THE BANK OF NOVA SCOTIA
By:
--------------------------
Title:
MIDLAND BANK PLC
By:
--------------------------
Title:
116
<PAGE>
Subsidiary Borrowers in Belgium:
HARMAN BELGIUM NV
By: /s/ Jean Stroobants
-------------------------
Name: Jean Stroobants
Title: Managing Director
117
<PAGE>
Subsidiary Borrowers in Canada:
STUDER CANADA LIMITED
By: /s/ Prodromos Constantinou
---------------------------
Name: Prodromos Constantinou
Title: President
By: /s/ Werner Muggler
----------------------------
Name: Werner Muggler
Title: VP Finance
118
<PAGE>
LYDIG OF SCANDINAVIA A/S
By: /s/ Bernard A. Girod
----------------------------
Name: Bernard A. Girod
Title:
By:
----------------------------
Name: Niels J. Bornhoj
Title:
By:
----------------------------
By: Niels Jespersen
Title:
119
<PAGE>
LYDIG OF SCANDINAVIA A/S
By:
----------------------------
Name: Bernard A. Girod
Title:
By: /s/ Niels J. Bornhoj
----------------------------
Name: Niels J. Bornhoj
Title: President
By: /s/ Niels Jespersen
----------------------------
By: Niels Jespersen
Title: President
120
<PAGE>
Subsidiary Borrowers in France:
AUDAX INDUSTRIES, S.A.
By: /s/ Dominique deGelis
----------------------------
Name: Dominique deGelis
Title: President and Director
General
HARMAN FRANCE, S.A.
By:
----------------------------
Name: Bruno Bertrand
Title: Managing Director
STUDER DIGITEC, S.A.
By:
----------------------------
Name: Phillipe Delacroix
Title: President
121
<PAGE>
Subsidiary Borrowers in France:
AUDAX INDUSTRIES, S.A.
By:
----------------------------
Name: Dominique deGelis
Title: President and Director
General
HARMAN FRANCE, S.A.
By: /s/ Bruno Bertrand
----------------------------
Name: Bruno Bertrand
Title: Managing Director
STUDER DIGITEC, S.A.
By:
----------------------------
Name: Phillipe Delacroix
Title: President
122
<PAGE>
Subsidiary Borrowers in France:
AUDAX INDUSTRIES, S.A.
By:
----------------------------
Name: Dominique deGelis
Title: President and Director
General
HARMAN FRANCE, S.A.
By:
----------------------------
Name: Bruno Bertrand
Title: Managing Director
STUDER DIGITEC, S.A.
By: /s/ Phillipe Delacroix
----------------------------
Name: Phillipe Delacroix
Title: President
123
<PAGE>
Subsidiary Borrowers in Germany:
AKG ACOUSTICS GMBH
By: /s/ Heiner Gropke
----------------------------
Name: Heiner Gropke
Title: General Manager
HARMAN DEUTSCHLAND GMBH
By:
----------------------------
Name: Dr. Klaus Schulz-Hanssen
Title: Managing Director
STUDER DEUTSCHLAND GMBH
By:
----------------------------
Name: Eberhard Kaulbach
Title: Managing Director
124
<PAGE>
Subsidiary Borrowers in Germany:
AKG ACOUSTICS GMBH
By:
----------------------------
Name: Heiner Gropke
Title: General Manager
HARMAN DEUTSCHLAND GMBH
By: /s/ Dr. Klaus Schulz-Hanssen
----------------------------
Name: Dr. Klaus Schulz-Hanssen
Title: Managing Director
STUDER DEUTSCHLAND GMBH
By:
----------------------------
Name: Eberhard Kaulbach
Title: Managing Director
125
<PAGE>
Subsidiary Borrowers in Germany:
AKG ACOUSTICS GMBH
By:
----------------------------
Name: Heiner Gropke
Title: General Manager
HARMAN DEUTSCHLAND GMBH
By:
----------------------------
Name: Dr. Klaus Schulz-Hanssen
Title: Managing Director
STUDER DEUTSCHLAND GMBH
By: /s/ Eberhard Kaulbach
----------------------------
Name: Eberhard Kaulbach
Title: Managing Director
126
<PAGE>
Subsidiary Borrowers in Japan:
HARMAN INTERNATIONAL JAPAN CO.,
LIMITED
By: /s/ Minoru Tokuhara
----------------------------
Name: Minoru Tokuhara
Title:
STUDER JAPAN LTD.
By: /s/ Hiroyuki Ikeuchi
----------------------------
Name: Hiroyuki Ikeuchi
Title: Managing Director
127
<PAGE>
Subsidiary borrowers in Switzerland:
STUDER PROFESSIONAL AUDIO AG
By: /s/ Bruno Hochstrasser
----------------------------
Name: Bruno Hochstrasser
Title: Managing Director
By: /s/ William Palin
----------------------------
Name: William Palin
Title: Controller
By: /s/ Thomas Bogli
----------------------------
Name: Thomas Bogli
Title: Director
128
<PAGE>
Subsidiary Borrowers in the United Kingdom:
BSS AUDIO LTD.
By: /s/ Steve Revill
----------------------------
Name: Steve Revill
Title: Director
HARMAN UK LTD.
By:
----------------------------
Name: William Palin
Title: Director
HARMAN INTERNATIONAL INDUSTRIES LTD.
By:
----------------------------
Name: William Palin
Title: Director
HARMAN MOTIVE LTD.
By:
----------------------------
Name: William Palin
Title: Director
SOUNDCRAFT ELECTRONICS LTD.
By:
----------------------------
Name: William Palin
Title: Director
TURBO SOUND LTD.
By: /s/ Steve Revill
----------------------------
Name: Steve Revill
Title: Director
129
<PAGE>
Subsidiary Borrowers in the United Kingdom:
BSS AUDIO LTD.
By:
----------------------------
Name: Steve Revill
Title: Director
HARMAN UK LTD.
By: /s/ William Palin
----------------------------
Name: William Palin
Title: Director
HARMAN INTERNATIONAL INDUSTRIES LTD.
By: /s/ William Palin
----------------------------
Name: William Palin
Title: Director
HARMAN MOTIVE LTD.
By: /s/ William Palin
----------------------------
Name: William Palin
Title: Director
SOUNDCRAFT ELECTRONICS LTD.
By: /s/ William Palin
----------------------------
Name: William Palin
Title: Director
TURBO SOUND LTD.
By:
----------------------------
Name: Steve Revill
Title: Director
130
<PAGE>
Subsidiary Borrowers in U.S.:
AKG ACOUSTICS, INC.
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Vice President
AUDAX OF AMERICA, INC.
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Vice President, Chief
Financial Officer and
Secretary
DOD ELECTRONICS CORPORATION
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Vice President, Chief
Financial Officer and
Secretary
FOSGATE, INC.
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Vice President, Chief
Financial Officer and
Secretary
131
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HARMAN KARDON, INCORPORATED
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Executive Vice
President, Chief
Financial Officer and
Secretary
HARMAN MOTIVE, INC.
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Vice President, Chief
Financial Officer and
Secretary
HARMAN AUDIO OUTLET, INC.
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Vice President, Chief
Financial Officer and
Secretary
INFINITY SYSTEMS, INC.
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Vice President, Chief
Financial Officer and
Secretary
132
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JBL INCORPORATED
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Vice President, Chief
Financial Officer and
Secretary
LEXICON, INCORPORATED
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Vice President, Chief
Financial Officer and
Secretary
PYLE INDUSTRIES, INC.
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Vice President, Chief
Financial Officer and
Secretary
STUDER EDITECH CORP.
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Vice President
133
<PAGE>
Subsidiary Guarantors:
HARCO PROPERTIES, INC.
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Vice President, Chief
Financial Officer and
Secretary
HARMAN INVESTMENT COMPANY, INC.
By: /s/ Bernard A. Girod
-------------------------
Name: Bernard A. Girod
Title: Vice President, Chief
Financial Officer and
Secretary
134
<PAGE>
SCHEDULE I
LENDERS AND COMMITMENTS
Commitment
Lenders Commitments Percentage
Chemical Bank $50,000,000 25.0%
140 East 45th Street
New York, NY 10017-3162
NationsBank of $40,000,000 20.0%
North Carolina, N.A.
1 Nationbank Plaza
Charlotte, N.C. 28255
Commerzbank AG, Los Angeles $20,000,000 10.0%
Branch
660 So. Figueria Street
#1450
Los Angeles, CA 90017
PNC Bank, National $20,000,000 10.0%
Association
100 South Broad Street
7th floor
Philadelphia, PA 19110
The Mitsubishi Bank, Ltd. $15,000,000 7.5%
225 Liberty Street,
Two World Financial Center
New York, NY 10281-1059
Societe Generale $15,000,000 7.5%
122 Avenue of the Americas
New York, NY 10020
Citibank, N.A. $10,000,000 5.0%
399 Park Avenue
New York, NY 10043
Bank of Montreal $10,000,000 5.0%
115 South LaSalle
Chicago, IL 60603
GiroCredit Bank, $10,000,000 5.0%
A.G. Dir Sparkassen,
Grand Cayman Island
Branch
135
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65 East 55th Street
New York, NY 10022
The Bank of Nova Scotia $10,000,000 5.0%
One Liberty Plaza
36th floor
New York, NY 10006
136
<PAGE>
SCHEDULE II
SUBSIDIARY BORROWERS AND SUBSIDIARY GUARANTORS
I. Domestic Subsidiary Borrowers
Name and Address Jurisdiction of
Incorporation
AKG Acoustics, Inc.
1525 Alvarado Street
San Leandro, CA 94577 Delaware
Audax of America, Inc.
10 Upton Drive
Wilmington, MA 01887 Delaware
DOD Electronics Corporation
8760 S. Sandy Parkway
Sandy, UT 84070 Utah
Fosgate, Inc.
P.O. Box 70
Heber City, UT 84032 Delaware
Harman-Kardon, Incorporated
20630 Nordhoff Street
Chatsworth, CA 91311 Delaware
Harman-Motive, Inc.
1201 South Ohio Street
Martinsville, IN 46151 Delaware
Harman Audio Outlet, Inc.
8500 Balboa Boulevard
Northridge, CA 91329 Delaware
Infinity Systems, Inc.
9409 Owensmouth Avenue
Chatsworth, CA 91311 California
JBL Incorporated
8500 Balboa Boulevard
Northridge, CA 91329 Delaware
Lexicon, Incorporated
100 Beaver Street
Waltham, MA 02154-8425 Massachusetts
137
<PAGE> 2
Pyle Industries, Inc.
P.O. Box 620
501 Center Street
Huntington, IN 46750 Indiana
Studer Editech Corp.
1370 Willow Road, Suite 201
Menlo Park, CA 94025 California
II. Foreign Subsidiary Borrowers
Name and Address Jurisdiction of
Incorporation
Harman Belgium NV
Rue de la Celidee straat 29
B-1080
Brussels, Belgium Kingdom of Belgium
Studer Canada Limited
1947 Leslie Street
Toronto, Ontario
M3B 2M3, Canada Canada
Lydig of Scandinavia A/S
Vesterled 6-8
Postbox 69
DK-6950 Ringkobing
Denmark Denmark
Audax Industries, S.A.
2, route de Tours
72500 Chateau-du-Loir
France France
Harman France, S.A.
33, avenue du Marechal
de Lattre de Tassigny
94127 Fontenay sous Bois Cedex,
France France
Studer Digitec, S.A.
25, avenue de l'Europe
F-78400 Chatou,
France France
AKG Acoustics GmbH
Bodenseestrasse 26-230
D-8000 Munchen 60,
Germany Germany
138
<PAGE> 3
Harman Deutschland GmbH
Hunderstrasse 1
D-74080 Heilbronn
Germany Germany
Studer Deutschland GmbH
Motzener Strasse 6-14A
D-12277 Berlin
Germany Germany
Harman International Japan Co.,
Ltd.
Hinoki Building 1-5
Azabudai 3 Chome
Minato-ku, Tokyo 106, Japan Japan
Studer Japan Ltd.
2-43-7, Uehara, Shibuya-Ku
Tokyo 151, Japan Japan
Studer Professional Audio AG
Althardstrasse 30
CH-8105 Regensdorf
Zurich, Switzerland Switzerland
BSS Audio Ltd.
Unit 5
Merlin Centre
Acrewood Way
St. Albans
Hertfordshire AL4 OJY
England United Kingdom
Harman International
Industries, Limited
Unit 1B Mill Street
Slough
Berkshire S12 5DD
England United Kingdom
Harman Motive Limited
Bennett Street
Bridgend Industrial Estate
Bridgend Mid Glamorgan CF31 3SH
Wales, United Kingdom United Kingdom
Harman UK Limited
Unit IB Mill Street
Slough
Berkshire S12 5DD
England United Kingdom
139
<PAGE> 4
Soundcraft Electronics, Limited
Cranborne House
Cranborne Industrial Estate Cranborne Road
Potters Bar
Hertfordshire EN6 3JN
England United Kingdom
Turbo Sound Ltd.
Star Road
Partridge Green
West Sussex RH13 5EZ
England United Kingdom
III. Subsidiary Guarantors
Name and Address Jurisdiction of
Incorporation
AKG Acoustics, Inc.
1525 Alvarado Street
San Leandro, CA 94577 Delaware
Audax of America, Inc.
10 Upton Drive
Wilmington, MA 01887 Delaware
DOD Electronics Corporation
8760 So. Sandy Parkway
Sandy, UT 84070 Utah
Fosgate, Inc.
P.O. Box 70
Heber City, UT 84032 Delaware
Harman-Kardon, Incorporated
20630 Nordhoff Street
Chatsworth, CA 91311 Delaware
Harman-Motive, Inc.
1201 South Ohio Street
Martinsville, IN 46151 Delaware
Harman Audio Outlet, Inc.
8500 Balboa Boulevard
Northridge, CA 91329 Delaware
Infinity Systems, Inc.
9409 Owensmouth Avenue
Chatsworth, CA 91311 California
140
<PAGE> 5
JBL Incorporated
8500 Balboa Boulevard
Northridge, CA 91329 Delaware
Lexicon, Incorporated
100 Beaver Street
Waltham, MA 02154-8425 Massachusetts
Pyle Industries, Inc.
P.O. Box 620
501 Center Street
Huntington, IN 46750 Indiana
Studer Editech Corp.
1370 Willow Road, Suite 201
Menlo Park, CA 94025 California
Harco Properties, Inc.
8500 Balboa Boulevard
Northridge, CA 91329 Delaware
Harman Investment Company, Inc.
103 Springer Building
3411 Silverside Road
Wilmington, DE 19810 Delaware
IV. Other Restricted Subsidiaries
AKG Akustische Kino-gerat Gmbh Austria
Lembockgasse 21-25, P.O. Box 158
Vienna, A-1230
Austria
AKG Acoustic plc United Kingdom
Vienna Court, lammas road
Godalming
Surrey GU7 1JG
England
Allen & Heath Limited United Kingdom
Kernick Industrial Estate
Penryn
Kornwall TR10 9LU
England
Edge Technology Group Lpd United Kingdom
2 Roseberry Gardens
Ealing, London W13 0HD
England
141
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Precision Devices Limited United Kingdom
Quinpec Court
Barbot Hall Industrial Estate
Rotherham
South Yorkshire S61 4RN
England
Atlantex Music Limited United Kingdom
Unit 2, Borehamwood Industrial Park
Rowley Lane
Borehamwood, Hertfordshire WD6 5PZ
United Kingdom
Bandive Limited United Kingdom
Unit 2, Borehamwood Industrial Park
Rowley Lane
Borehamwood, Hertfordshire WD6 5PZ
United Kingdom
Harman Consumer Europe A/S Denmark
Birkeroed Kongevej 194B
DK-3460 Birkeroed
Denmark
Harman Holding Europe A/S Denmark
Birkeroed Kongevej 194B
DK-3460 Birkeroed
Denmark
Harman International Foreign Guam
Sales Corporation
8500 Balboa Boulevard
Northridge, California 91329
Harman Marketing Europe A/S Denmark
Birkeroed Kongevej 194B
DK-3460 Birkeroed
Denmark
MBI Broadcast Systems Limited United Kingdom
Cranborne House, Cranborne
Industrial Estate
Cranborne Road
Potters Bar
Hertfordshire EN6 3JN
United Kingdom
142
<PAGE> 7
MBI Consulting and United Kingdom
Commissioning Limited
Cranborne House, Cranborne
Industrial Estate
Cranborne Road
Potters Bar
Hertfordshire EN6 3JN
United Kingdom
Quested Monitoring Systems Limited United Kingdom
59 Naltings Place
Bagleys Lane
London, SW6 2BX
United Kingdom
Riverend Limited United Kingdom
Cranborne House, Cranborne Industrial
Estate
Cranborne Road
Potters Bar
Hertfordshire EN6 3JN
United Kingdom
SCJ + AKG Ltd. Japan
Hinok Building 1-5
Azabudai 3 Chome
Minato-ku, Tokyo 106
Japan
Son-Audax Loudspeakers Limited United Kingdom
Unit 2, Borehamwood Industrial Park
Rowley Lane
Borehamwood
Hertfordshire WD6 5PZ
United Kingdom
Soundcraft & Magnetics Limited United Kingdom
Cranborne House, Cranborne Industrial
Estate
Cranborne Road
Potters Bar
Hertfordshire EN6 3JN
United Kingdom
Studer U.K. Limited United Kingdom
Foster House
Maxwell Road, Elstree Way
GB-Borehamwood
Hertfordshire, WD6 1JH
United Kingdom
143
<PAGE> 8
Studer Wien Ges.mbH Austria
Ludwiggasse 4
A-1180 Wien
Austria
Total Audio Concepts Ltd. United Kingdom
Cranborne House, Cranborne
Industrial Estate
Cranborne Road
Potters Bar
Hertfordshire EN6 3JN
United Kingdom
Turbo Sound Rentals Ltd. United Kingdom
Star Road
Partridge Green
West Sussex RH13 5EZ
United Kingdom
Turbo Sound Sales, Ltd. United Kingdom
Star Road
Partridge Green
West Sussex RH13 5EZ
United Kingdom
Turnkey Ltd. United Kingdom
Cranborne House, Cranborne
Industrial Estate
Cranborne Road
Potters Bar
Hertfordshire EN6 3JN
United Kingdom
144
<PAGE>
SCHEDULE III
CERTAIN INFORMATION CONCERNING SWING LINE 2
LOANS AND LETTERS OF CREDIT
I. Issuing Banks and Issuing Offices
Name of Issuing Bank Issuing Office
NationsBank NationsBank of
of North Carolina, N.A. North Carolina, N.A.
One NationsBank Plaza
Charlotte, NC 28255
Attention: William White
Corporate Credit Support
Tel. No: 704-386-7891
Fax No: 704-386-8694
II. Swing Line Loans
Swing Line
Name of Borrower Swing Line Lender Currency
---------------- ----------------- ----------
Studer Canada Limited The Bank of Nova Canadian
Scotia Dollars
Audax Industries, S.A. Societe Generale French
Francs
Harman France, S.A. Societe Generale French
Francs
Studer Digitech, S.A. Societe Generale French
Francs
AKG Acoustics GmbH Chemical Bank Deutsche
Frankfurt Marks
Harman Deutschland GmbH Chemical Bank Deutsche
Frankfurt Marks
Studer Deutschland GmbH Chemical Bank Deutsche
Frankfurt Marks
Harman International The Mitsubishi Yen
Japan Co., Limited Bank, Ltd.
Studer Japan Ltd. The Mitsubishi Yen
Bank, Ltd.
BSS Audio Ltd Chemical Bank Pound
Sterling
145
<PAGE> 2
Harman International Chemical Bank Pound
Industries, Limited Sterling
Harman Motive Limited Chemical Bank Pound
Sterling
Harman UK Limited Chemical Bank Pound
Sterling
Soundcraft Electronics, Chemical Bank Pound
Limited Sterling
Turbo Sound Ltd. Chemical Bank Pound
Sterling
Harman International Chemical Bank U.S.
Industries, Incorporated Dollars
III. Swing Line Lenders--Addresses of Lending Offices
The Bank of Nova Scotia (Canadian Dollars)
Scotia Plaza Branch
40 King Street West
Toronto, Ontario M5H1H1
Canada
Attention: Don Elliott
Chemical Bank (U.S. Dollars)
140 E. 45th Street
New York, NY 10017
Attention: James Halka
Chemical Bank (Sterling)
125 London Wall
London EC2Y 5AJ
United Kingdom
Attention: Pat Wallis
Chemical Bank AG (Deutsche Marks)
Fulmenstrasse 30
Frankfurt 60325
Germany
Attention: Ingeborg Bretana
The Mitsubishi Bank, Limited (Yen)
Roppongi Branch
9-7, Roppongi 4-chome
Minatoku, Tokyo 106
Japan
Societe Generale (French Francs)
146
<PAGE> 3
For Audax Industries, S.A.: Societe Generale
Le Mans
43, Place de la Republique BP35X
72040 Le Mans
Cedex, France
For Harman France, S.A.: Societe Generale
Vincennes
13, Rue de Montrevil
94300 Vincennes
France
IV. Swing Line Rate for each Currency
A. Canadian Dollars: The Swing Line Rate for Swing Line
Loans in Canadian Dollars is the Canadian Prime Rate.
Canadian Prime Rate means the greater of (a) the
variable rate of interest per annum determined by the
Bank of Nova Scotia from time to time as its prime rate
for Canadian dollar loans made by the Bank of Nova
Scotia in Canada from time to time, being a variable
per annum reference rate of interest adjusted
automatically upon change by the Bank of Nova Scotia,
calculated on the basis of year of 365 days and (b) the
sum of (i) the rate per annum for Canadian dollar
banker's acceptance having a term of 30 days that
appears on the Reuters Screen CDOR Page as of 10:00
A.M. (Toronto Time) on the date of determination as
reported by the Bank and (ii) 3/4 of 1% per annum.
B. Dollars: The Swing Line Rate for Swing Line Loans in
Dollars is the ABR.
C. Deutsche Marks: The Swing Line Rate for Deutsche Marks
is the German Prime Rate.
D. French Francs: The Swing Line Rate for French Francs
is the European Interbank Offer Rate plus a spread to
be mutually agreed upon between Societe Generale and
the Company.
E. Sterling: The Swing Line Rate for Sterling is the Base
Rate plus 1/2%.
F. Yen: The Swing Line Rate for Yen is the Japanese Yen
Short Term Prime Rate.
V. Notice of Borrowing for each Swing Line Currency
A. Canadian Dollars
1. Deliver to: The Bank of Nova Scotia
Scotia Plaza Branch
147
<PAGE> 4
40 King Street West
Toronto, Ontario M5H1H1
Canada
Attention: Don Elliott
Telephone No: 416-866-6489
Fax No: 416-866-6489
2. Time:
Not later than 11:00 A.M. on the Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, Borrowing Date payment instructions.
B. Dollars:
1. Deliver to: Chemical Bank
140 E. 45th Street
New York, NY 10017
Attention: James Halka
Telephone No: 212-622-0688
Fax No: 212-622-0002
2. Time:
Not later than 11:00 A.M. on the Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, Borrowing Date, payment instructions.
C. Deutsche Marks:
1. Deliver to: Chemical Bank AG
Fulmenstrasse 30
Frankfurt 60325
Germany
Attention: Ingeborg Bretana
Telephone No:
Fax No: 49 69 7158553
2. Time:
Not later than 9:00 A.M. on the Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, Borrowing Date, payment instructions.
D. French Francs:
1. For Audax Industries, S.A., deliver to:
Societe Generale
Le Mans
43, Place de la Republique BP35X
72040 Le Mans
Cedex, France
2. For Harman France, S.A., deliver to:
148
<PAGE> 5
Societe Generale
Vincennes
13, Rue de Montrevil
94300 Vincennes
France
2. Time:
Not later than 11:00 A.M. on the Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, Borrowing Date, payment instructions.
E. Sterling:
1. Deliver to: Chemical Bank
125 London Wall
London EC2Y 5AJ
United Kingdom
Attention: Pat Wallis
Telephone No:
Fax No: 44 71 777 4757
2. Time:
Not later than 9:00 A.M. on the Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, Borrowing Date, payment instructions.
F. Yen:
1. Deliver to: The Mitsubishi Bank, Limited
Roppongi Branch
9-7, Roppongi 4-chome
Minatoku, Tokyo 106
Japan
Attention:
Telephone: 03-3408-8111
Fax No: 03-3404-3813
2. Time:
Not later than 1:00 P.M. on the Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, Borrowing Date, payment instructions.
149
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SCHEDULE IV
ADMINISTRATIVE SCHEDULE
I. COMMITTED RATE LOANS
A. Interest Rates for Each Currency
Dollars:
1. Committed Rate ABR Loans: ABR
2. Committed Rate Eurocurrency Loans:
for any Interest Period in respect of any Tranche,
the rate for deposits in Dollars for a period
beginning on the first day of such Interest Period
and ending on the last day of such Interest Period
which appears on the Telerate Page 3750 (or, if no
such quotation appears on such Telerate Page, on
the appropriate Reuters Screen) as of 11:00 a.m.,
London time, on the Quotation Day for such
Interest Period.
Austrian Schillings:
Committed Rate Eurocurrency Loans:
for any Interest Period in respect of any Tranche,
the rate for deposits in Dollars for a period
beginning on the first day of such Interest Period
and ending on the last day of such Interest Period
which appears on the Reuters Screen DKNH (or, if
no such quotation appears on such Reuters Screen,
on the appropriate Telerate Page) as of 11:00
a.m., London time, on the Quotation Day for such
Interest Period.
Danish Kroner:
Committed Rate Eurocurrency Loans:
for any Interest Period in respect of any Tranche,
the rate for deposits in Dollars for a period
beginning on the first day of such Interest Period
and ending on the last day of such Interest Period
which appears on the Reuters Screen VIBO (or, if
no such quotation appears on such Reuters Screen,
on the appropriate Telerate Page) as of 11:00
150
<PAGE> 2
a.m., London time, on the Quotation Day for such
Interest Period.
Deutsche Marks:
Committed Rate Eurocurrency Loans:
for any Interest Period in respect of any Tranche,
the rate for deposits in Deutsche Marks for a
period beginning on the first day of such Interest
Period and ending on the last day of such Interest
Period which appears on the Telerate Page 3750
(or, if no such quotation appears on such Telerate
Page, on the appropriate Reuters Screen) as of
11:00 a.m., London time, on the Quotation Day for
such Interest Period.
French Francs:
Committed Rate Eurocurrency Loans:
for any Interest Period in respect of any Tranche,
the rate for deposits in French Francs for a
period beginning on the first day of such Interest
Period and ending on the last day of such Interest
Period which appears on the Telerate Page 3740
(or, if no such quotation appears on such Telerate
Page, on the appropriate Reuters Screen) as of
11:00 a.m., London time, on the Quotation Day for
such Interest Period.
Sterling:
Committed Rate Eurocurrency Loans:
for any Interest Period in respect of any Tranche,
the rate per annum equal to the average (rounded
upward to the nearest 1/16th of 1%) of the
respective rates notified to the Administrative
Agent by each of the Reference Lenders as the rate
at which such Reference Lender is offered deposits
in Sterling in the Paris interbank market at or
about 11:00 A.M., Paris time, on the Quotation Day
for such Interest Period for delivery on the first
day of such Interest Period for the number of days
comprised therein and in an amount comparable to
such Reference Lender's Commitment Percentage of
such Tranche.
151
<PAGE> 3
Swiss Francs:
Committed Rate Eurocurrency Loans:
for any Interest Period in respect of any Tranche,
the rate for deposits in Swiss Francs for a period
beginning on the first day of such Interest Period
and ending on the last day of such Interest Period
which appears on the Telerate Page 3750 (or, if no
such quotation appears on such Telerate Page, on
the appropriate Reuters Screen) as of 11:00 a.m.,
London time, on the Quotation Day for such
Interest Period.
Yen:
Committed Rate Eurocurrency Loans:
for any Interest Period, in respect of any
Tranche, the rate for deposits in Yen for a period
beginning on the first day of such Interest Period
and ending on the last day of such Interest Period
which appears on the Telerate Page 3750 (or, if no
such quotation appears on such Telerate Page, on
the appropriate Reuters Screen) as of 11:00 a.m.,
London time, on the Quotation Day for such
Interest Period.
Hong Kong Dollars:
Committed Rate Eurocurrency Loans:
for any Interest Period in respect of any Tranche,
the rate for deposits in Hong Kong Dollars for a
period beginning on the first day of such Interest
Period and ending on the last day of such Interest
Period which appears on the Reuters Screen HIBO
(or, if no such quotation appears on such Reuters
Screen, on the appropriate Telerate Page) as of
11:00 a.m., London time, on the Quotation Day for
such Interest Period.
Singapore Dollars:
Committed Rate Eurocurrency Loans:
for any Interest Period in respect of any Tranche,
the average (determined by the Administrate Agent)
of the rates for deposits in Singapore Dollars for
a period beginning on the first day of such
Interest Period and ending on the last day of such
Interest Period which appears on the Reuters
152
<PAGE> 4
Screen SIBO (or, if no such quotations appears on
such Reuters Screen, on the appropriate Telerate
Page) as of 11:00 a.m., London time, on the
Quotation Day for such Interest Period.
Belgian Francs:
Committed Rate Eurocurrency Loans:
for any Interest Period in respect of any Tranche,
the rate for deposits in Belgian Francs for a
period beginning on the first day of such Interest
Period and ending on the last day of such Interest
Period which appears on the Reuters Screen BIBO
(or, if no such quotation appears on such Reuters
Screen, on the appropriate Telerate Page) as of
11:00 a.m., London time, on the Quotation Day for
such Interest Period.
B. Funding Office, Funding Time, Payment Office, Payment
Time for Each Currency.
Dollars:
1. Funding Office: Chemical Bank
270 Park Avenue
New York, New York
2. Funding Time: 11:00 A.M., New York time
3. Payment Office: Chemical Bank
270 Park Avenue
New York, New York
4. Payment Time: 12:00 Noon, New York time.
Austrian Schillings:
1. Funding Office:
Account of: Chemical Investment Bank Limited
Account No: 0101 07530/01
CreditAnstalt Bankverein
Vienna
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chemical Investment Bank Limited
Account No: 0101 07530/01
CreditAnstalt Bankverein
Vienna
4. Payment Time: 11:00 A.M., local time.
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Danish Kroner:
1. Funding Office:
Account of: Chemical Investment Bank Limited
Account No: 5000001963
Unibank Populaires
Copenhagen
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chemical Investment Bank Limited
Account No: 5000001963
Unibank Populaires
Copenhagen
4. Payment Time: 11:00 A.M., local time.
Deutsche Marks:
1. Funding Office:
Account of: Chemical Investment Bank Limited
Account No: 0101-080002101
Chemical Bank
Frankfurt
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chemical Investment Bank Limited
Account No: 0101-080002101
Chemical Bank
Frankfurt
4. Payment Time: 11:00 A.M., local time.
French Francs:
1. Funding Office:
Account of: Chemical Investment Bank Limited
Account No: 905 01735
Caisse Centrale des Banques
Paris
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chemical Investment Bank Limited
Account No: 905 01735
Caisse Centrale des Banques
154
<PAGE> 6
Paris
4. Payment Time: 11:00 A.M., local time.
Sterling:
1. Funding Office:
Account of: Chemical Investment Bank Limited
Account No: CHAPS 40 52 06
Chemical Bank
125 London Wall
London EC2Y 5AJ
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chemical Investment Bank Limited
Account No: CHAPS 40 52 06
Chemical Bank
125 London Wall
London EC2Y 5AJ
4. Payment Time: 11:00 A.M., local time.
Swiss Francs:
1. Funding Office:
Account of: Chemical Investment Bank Limited
Account No: PO 120487
Swiss Bank Corporation
Zurich
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chemical Investment Bank Limited
Account No: PO 120487
Swiss Bank Corporation
Zurich
4. Payment Time: 11:00 A.M., local time.
Yen:
1. Funding Office:
Account of: Chemical Investment Bank Limited
Account No: 3401-211623650
Chemical Bank
Tokyo
155
<PAGE> 7
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chemical Investment Bank Limited
Account No: 3401-211623650
Chemical Bank
Tokyo
4. Payment Time: 11:00 A.M., local time.
Hong Kong Dollars:
1. Funding Office:
Account of: Chemical Investment Bank Limited
London
Account No: 0001-039230103
Chemical Bank
Hong Kong
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chemical Investment Bank Limited
Account No: 0001-0392301
Chemical Bank
Hong Kong
4. Payment Time: 11:00 A.M., local time.
Singapore Dollars:
1. Funding Office:
Account of: Chemical Investment Bank Limited
Account No: 101-399-4086
United Overseas Bank Singapore
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chemical Investment Bank Limited
Account No: 101-399-4086
United Overseas Bank Singapore
4. Payment Time: 11:00 A.M., local time.
Belgian Francs:
156
<PAGE> 8
Account of: Chemical Investment Bank Limited
Account No: 5001-541375 550-8862300-82
Banque Paribas Belgique Brussels
2. Funding Time: 11:00 A.M., local time.
3. Payment Office:
Account of: Chemical Investment Bank Limited
Account No: 5001-541375 550-8862300-82
Banque Paribas Belgique Brussels
4. Payment Time: 11:00 A.M., local time.
C. Notice of Borrowing
Dollars:
1. Deliver to: Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: James Halka
Telephone No: 212-622-0688
Fax No: 212-622-0002
2. Time:
(i) ABR Loans--Not later than 11:00 A.M., New
York City time, one Business Day prior to the
Borrowing Date
(ii) Eurocurrency Loans--Not later than 11:00
A.M., New York City time, three Business Days
prior to the Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, whether ABR Loans or Eurocurrency
Loans, amounts of each such type, and Interest
Periods for Eurocurrency Loans.
Austrian Schillings:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day in
respect of such Borrowing Date.
157
<PAGE> 9
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Danish Kroner:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day in
respect of such Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Deutsche Marks:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day in
respect of such Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
French Francs:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
158
<PAGE> 10
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day in
respect of such Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Sterling:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day in
respect of such Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Swiss Francs:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day in
respect of such Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Yen:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
159
<PAGE> 11
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day in
respect of such Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Hong Kong Dollars:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day in
respect of such Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Singapore Dollars:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day in
respect of such Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Belgian Francs:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
160
<PAGE> 12
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day in
respect of such Borrowing Date.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
D. Notice of Continuation:
Dollars:
1. Deliver to: Chemical Bank
270 Park Avenue
New York, New York 10017
Attention: James Halka
Telephone No: 212-622-0688
Fax No: 212-622-0002
2. Time: --Not later than 11:00 A.M., New York City
time, three Business Days prior to the last
day of the current Interest Period.
3. Information Required: Name of Borrower, amount to
be continued and Interest Periods for Eurocurrency
Loans.
Austrian Schillings:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day for
the next Interest Period.
3. Information Required: Name of Borrower, amount to
be continued, and Interest Periods for
Eurocurrency Loans.
Danish Kroner:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
161
<PAGE> 13
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day for
the next Interest Period.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Deutsche Marks:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day for
the next Interest Period.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
French Francs:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day for
the next Interest Period.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Sterling:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
162
<PAGE> 14
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day for
the next Interest Period.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Swiss Francs:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day for
the next Interest Period.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Yen:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day for
the next Interest Period.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Hong Kong Dollars:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
163
<PAGE> 15
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day for
the next Interest Period.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Singapore Dollars:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day for
the next Interest Period.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
Belgian Francs:
1. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
2. Time:
Not later than 11:00 A.M., London time, on the
last Business Day preceding the Quotation Day for
the next Interest Period.
3. Information Required: Name of Borrower, amount to
be borrowed, and Interest Periods for Eurocurrency
Loans.
II. NOTICE OF COMPETITIVE ADVANCE LOAN
A. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
164
<PAGE> 16
B. Delivery time: By close of business in London on date
Competitive Advance Loan is made.
C. Information to be set forth:
Name of Borrower
Amount and Currency of Competitive Advance Loan
Date of Competitive Advance Loan
Maturity Date
III. NOTICE OF SWING LINE OUTSTANDINGS
A. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
B. Delivery time: By close of business in London on the
last Business Day of each week on which
a Swing Line Lender has any outstanding
Swing Line Loans.
C. Information to be set forth:
Name of Borrower
Number of Swing Line Loans
Amount and Currency of each Swing Line Loan
Date of each Swing Line Loan
IV. NOTICE OF SWING LINE REFUNDING
A. Deliver to: Chemical Investment Bank Limited
125 London Wall
London EC2Y 5AJ
Attention: Michael Smith
Telephone No: 44 71 777 4271
Fax No: 44 71 777 4747
B. Information to be set forth:
Name of Borrower
Number of Swing Line Loans
Amount and Currency of each Swing Line Loan
Date of each Swing Line Loan
165
<PAGE>
SCHEDULE V
STUDER TRANSACTION
An investment transaction whereby a Swiss corporate
investor purchases from Studer preferred stock or participation
certificates (the "Preferred Stock") with a face amount of
approximately 200 million Swiss Francs. The Preferred Stock pays
a fixed dividend which is tax free to the Swiss corporate
investor. The proceeds from the sale of the Preferred Stock are
invested by Studer in Swiss or U.S. Government Risk or Triple A
Rated Bonds which generate a fixed rate of return to Studer which
exceeds the fixed dividend by approximately one hundred basis
points. The Preferred Stock is outstanding for a period of five
to seven years. At the end of five to seven years, Harman and/or
Studer agree(s) to purchase the Preferred Stock for 200 million
Swiss Francs. The obligation to purchase the Preferred Stock is
secured by a stand-by letter of credit issued by a bank. The
stand-by letter of credit is secured by the Bonds.
166
<PAGE>
SCHEDULE VI
Harman International Industries, Incorporated
List of Material Debt Instruments
1. Indenture dated August 13, 1992 by and between Harman
International Industries, Incorporated and Security Trust
Company N.A. as Trustee, relating to $70,000,000 principal
amount of 12.0% Senior Subordinated Notes due 2002,
including as an exhibit thereto the form of 12.0% Senior
Subordinated Notes due 2002.
2. Composite conformed copy of the Note Purchase Agreements
dated June 30, 1987 relating to the sale of $25.0 million
principal amount of 10.08% Senior Notes due September 30,
1994 and $17.5 million principal amount of 10.04% Senior
Notes due September 30, 1997, including as exhibits thereto
the form of 10.08% Senior Notes due September 30, 1994 and
10.40% Senior Notes due September 30, 1997.
3. First Amendment to Note Agreement dated June 30, 1987, dated
as of December 14, 1988, relating to the sale of $25.0
million principal amount of 10.08% Series A Senior Notes due
September 30, 1994 and $17.5 million principal amount of
10.40% Series B Senior Notes due September 30, 1997.
4. Second Amendment Agreement to Note Agreements dated June 30,
1987, dated as of November 1, 1993, relating to the sale of
$25 million principal amount of 10.08% Series A Senior Notes
due September 30, 1994 and $17.5 million principal amount of
10.40% Series B Senior Notes due September 30, 1997.
5. Composite conformed copy of the Note Purchase Agreement
dated December 1, 1988 relating to the sale of $45.0 million
principal amount of 11.2% Senior Subordinated Notes due
December 1, 1998, including as an exhibit thereto the form
of 11.2% Senior Subordinated Notes due December 1, 1998.
6. First Amendment Agreement to Note Agreements dated December
1, 1988, dated as of November 1, 1993, relating to the sale
of $45 million principal amount of 11.20% Senior
Subordinated Notes due December 1, 1998.
7. Promissory Note dated September 30, 1993 between Harman
International Industries, Incorporated and PNC Bank, N.A.
167
<PAGE>
SCHEDULE VI (continued)
Harman International Industries, Incorporated
List of Material Debt Instruments
8. Promissory Note dated September 28, 1993 between Harman
International Industries, Incorporated and Citicorp USA,
Inc.
9. Promissory Note dated May 17, 1994 among Harman
International Industries, Incorporated, certain of its
subsidiaries and Chemical Bank.
10. Promissory Note dated September 29, 1994 among Harman
International Industries, Incorporated, certain of its
subsidiaries and NationsBank.
168
<PAGE>
SCHEDULE 7.14
Harman International Industries, Incorporated
List of Subsidiaries
Jurisdiction of
Subsidiary Incorporation
---------- ---------------
AKG Acoustics GmbH Germany
AKG Acoustics, Inc. Delaware
AKG Acoustics India Ltd. India
AKG Acoustics plc United Kingdom
AKG Akustische u. Kino-Gerate
Gesellschaft m.b.H. Republic of Austria
Allen & Heath Limited United Kingdom
Amek Systems and Controls Ltd. United Kingdom
Amek Technology Group Plc United Kingdom
Atlantex Music Limited United Kingdom
Audax Industries, S.A. France
Audax of America, Inc. Delaware
Bandive Limited United Kingdom
BSS Audio Ltd. United Kingdom
DOD Electronics Corporation Utah
Edge Technology Group Ltd. United Kingdom
Entel, Ltd. United Kingdom
Environmental Investments, Ltd. United Kingdom
Epicure Products, Inc. Delaware
Fosgate, Inc. Delaware
Gatehit Limited United Kingdom
Hall Effects Laboratories, Ltd United Kingdom
169
<PAGE>
SCHEDULE 7.14 (page 2 of 4)
Harman International Industries, Incorporated
List of Subsidiaries
Jurisdiction of
Subsidiary Incorporation
---------- ---------------
Harco Properties, Inc. Delaware
Harman Belgium NV Kingdom of Belgium
Harman Consumer Europe A/S Denmark
Harman Deutschland GmbH Germany
Harman France, S.A. France
Harman Holding Europe A/S Denmark
Harman Integrated Design
Group, Incorporated Delaware
Harman International Foreign
Sales Corporation Guam
Harman International Industries Limited United Kingdom
Harman International Japan Co., Limited Japan
Harman Investment Company, Inc. Delaware
Harman-Kardon, Incorporated Delaware
Harman Marketing Europe A/S Denmark
Harman-Motive, Inc. Delaware
Harman Motive Limited United Kingdom
Harman Audio Outlet, Inc. Delaware
Harman UK Limited United Kingdom
Infinity Systems, Inc. California
JBL Incorporated Delaware
JBL TM Corporation Delaware
170
<PAGE>
SCHEDULE 7.14 (page 3 of 4)
Harman International Industries, Incorporated
List of Subsidiaries
Jurisdiction of
Subsidiary Incorporation
---------- ---------------
Lexicon, Incorporated Massachusetts
Lydig of Scandinavia A/S Denmark
MBI Broadcast Systems Limited United Kingdom
MBI Consulting and
Commissioning Limited United Kingdom
Precision Devices, Ltd United Kingdom
Pyle Industries, Inc. Indiana
Quested Monitoring Systems Limited United Kingdom
Riverend Limited United Kingdom
SCJ + AKG Ltd. Japan
Sescord Limited United Kingdom
Son-Audax Loudspeakers Limited United Kingdom
Soundcraft Electronics Limited United Kingdom
Soundcraft Magnetics Limited United Kingdom
Studer Deutschland GMBH Germany
Studer Editech Corp. California
Studer Canada Limited Canada
Studer Japan Ltd. Japan
Studer Professional Audio AG Switzerland
Studer S.E. Asia Pte, Ltd. Singapore
Studer U.K. Limited United Kingdom
Studer Wien Ges.mbh Republic of Austria
171
<PAGE>
SCHEDULE 7.14 (page 4 of 4)
Harman International Industries, Incorporated
List of Subsidiaries
Jurisdiction of
Subsidiary Incorporation
---------- ---------------
Studer Digitec, S.A. France
Total Audio Concepts Ltd. United Kingdom
Turbo Sound Ltd. United Kingdom
Turbo Sound Rentals, Ltd. United Kingdom
Turbo Sound Sales, Ltd. United Kingdom
Turnkey Ltd. United Kingdom
172
<PAGE>
Schedule 10.2
Indebtedness
Part 1
INSTITUTION TYPE BALANCE SECURITY
----------- ------------- ------- --------
EDGE TECHNOLOGIES
LOMBARD NORTH CTRL CAPITAL LEASE $ 59 EQUIPMENT
CREDIT LYONNAIS CAPITAL LEASE 19 EQUIPMENT
STUDER ZURICH
SOCIAL SECURITY SENIOR 1,556 EQUIPMENT
STUDER FRANCE
AUXICOMI CAPITAL LEASE 3,525 LAND & BLDG
ANVAR SENIOR 280 EQUIPMENT
LACOSTE SENIOR 142 EQUIPMENT
INNOVACOM SENIOR 142 EQUIPMENT
WARRANTY DEP SENIOR 5 EQUIPMENT
CREDIT LYONNAIS SENIOR 12 EQUIPMENT
STUDER JAPAN
VARIOUS CAPITAL LEASE 27 EQUIPMENT
HARMAN DEUTSCHLAND
B.W. BANK MORTGAGE 290 LAND/BLDG
HARMAN UK LTD
LOMBARD CAPITAL LEASE 147 EQUIPMENT
AUDAX
CIC SENIOR 244 HII GUARANTEE
AND EQUIPMENT
CCF SENIOR 249 HII GUARANTEE
AND EQUIPMENT
BARCLAYS SENIOR 240 HII GUARANTEE
AND EQUIPMENT
LYDIG
KREDITFORENING DMK MORTGAGE 347 BUILDING
NYKREDIT MORTGAGE 1,160 BUILDING
FIH OTHER 2,579 BLDG & MACH
OVERDRAFT OVERDRAFT 820 HII GUARANTEE
SOUNDCRAFT
LOMBARD NO. CENTRAL CAPITAL LEASE 282 EQUIPMENT
HARMAN MOTIVE LTD
LOMBARD NO. CENTRAL CAPITAL LEASE 546 TOOLING
AKG VIENNA
GIROCREDIT SENIOR DEBT 545 EQUIPMENT
GIROCREDIT NOTES PAYABLE 16,720 N/A
STUDER VIENNA
CREDITANSTALT MORTGAGE 791 BUILDING
AKG UK
CREDITANSTALT MORTGAGE 1,156 BUILDING
-------
TOTAL $31,883
=======
173
<PAGE>
Schedule 10.2
Indebtedness
Part II
HARMAN DEUTSCHLAND
DEUTSCHE BANK $ 1,752
COMMERZBANK 2,387
KREISSPARKASSE 1,970
HARMAN FRANCE
CHEMICAL 1,827
CITIBANK 1,862
BARCLAY'S BANK 86
HARMAN UK LTD
CHEMICAL 2,021
HARMAN ASIA
CHEMICAL 3,038
MITSUBISHI BANK 6,152
HARMAN BELGIUM
SOCIETE GENERALE 485
AUDAX
CHEMICAL 1,361
BANK OF AMERICA 2,826
SOCIETE GENERALE 465
CITICORP 2,826
AKG GERMANY
BAYER, VEREINSBANK 106
STUDER FRANCE
SOCIETE GENERALE 11
BPROP 2
NATIONSBANK 4,614
STUDER CANADA
UBS 1,111
--------
TOTAL $ 34,902
========
174
<PAGE>
Schedule 10.2
Indebtedness - Liens
Part III
INSTITUTION TYPE BALANCE SECURITY
----------- ------------- ------- --------
HII
NEW ENGLAND MUTUAL MORTGAGE $ 6,878 RANCHO BLDG
HARMAN MOTIVE
IB&T (AMERITRUST) MORTGAGE 244 LAND & BLDG
FND RICHMOND BONDS IRB 247 LAND & BLDG
US LEASING CAPITAL LEASE 587 EQUIPMENT
SOCIETY CAPITAL LEASE 509 EQUIPMENT
PYLE
NBD BANK MORTGAGE 970 PROPERTY
VARIOUS CAPITAL LEASE 61 EQUIPMENT
DOD ELECTRONICS
VARIOUS CAPITAL LEASE 382 EQUIPMENT
STATE OF UTAH MORTGAGE 105 BUILDING
JBL
IBM CAPITAL LEASE 79 MACH & EQUIP
ATLANTIC FINANCIAL CAPITAL LEASE 270 SOFTWARE
METLIFE CAPITAL SUBORD DEBT 740 EQUIPMENT
US LEASING CAPITAL LEASE 1,624 EQUIPMENT
BANC ONE CAPITAL LEASE 1,672 EQUIPMENT
INTERBANK CAPITAL LEASE 18 EQUIPMENT
SANWA CAPITAL LEASE 34 EQUIPMENT
JBL
FLEET CREDIT CORP CAPITAL LEASE 763 EQUIPMENT
1ST NATIONAL CAPITAL LEASE 618 EQUIPMENT
LEXICON
GE CAPITAL CAPITAL LEASE 10 EQUIPMENT
AKG VIENNA
GIROCREDIT SENIOR DEBT 545 EQUIPMENT
EDGE TECHNOLOGIES
LOMBARD NORTH CENTRAL CAPITAL LEASE 59 EQUIPMENT
CREDIT LYONNAIS CAPITAL LEASE 19 EQUIPMENT
STUDER ZURICH
SOCIAL SECURITY SENIOR 1,556 EQUIPMENT
STUDER FRANCE
AUXICOMI CAPITAL LEASE 3,525 LAND & BLDG
ANVAR SENIOR 280 EQUIPMENT
LACOSTE SENIOR 142 EQUIPMENT
INNOVACOM SENIOR 142 EQUIPMENT
WARRANTY DEP SENIOR 5 EQUIPMENT
CREDIT LYONNAIS SENIOR 12 EQUIPMENT
STUDER JAPAN
VARIOUS CAPITAL LEASE 27 EQUIPMENT
HARMAN DEUTSCHLAND
B.W. BANK MORTGAGE 290 BLDG & LAND
HARMAN UK LTD
LOMBARD CAPITAL LEASE 147 EQUIPMENT
AUDAX
CIC SENIOR 244 HII GUARANTEE
& EQUIPMENT
CCF SENIOR 249 HII GUARANTEE
& EQUIPMENT
BARCLAYS SENIOR 240 HII GUARANTEE
& EQUIPMENT
LYDIG
KREDITFORENING DMK MORTGAGE 347 BUILDING
NYKREDIT MORTGAGE 1,160 BUILDING
FIH OTHER 2,579 BLDG & MACH
SOUNDCRAFT
LOMBARD NO. CENTRAL CAPITAL LEASE 282 EQUIPMENT
STUDER VIENNA
CREDITANSTALT MORTGAGE 791 BUILDING
AKG UK
CREDITANSTALT MORTGAGE 1,156 BUILDING
HARMAN MOTIVE LTD.
LOMBARD NO. CENTRAL CAPITAL LEASE 546 TOOLING
-------
TOTAL $30,154
=======
175
<PAGE>
EXHIBIT A to
Credit Agreement
JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of the date set forth
below, entered into pursuant to the MULTI-CURRENCY, MULTI-OPTION
CREDIT AGREEMENT, dated as of September 30, 1994 (as amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement"; terms defined therein being used herein as therein
defined), among HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED,
the Subsidiary Borrowers and Subsidiary Guarantors parties
thereto, the Lenders parties thereto, NATIONSBANK OF NORTH
CAROLINA, N. A., as Co-Agent, CHEMICAL SECURITIES INC., as
Arranger and CHEMICAL BANK, as Administrative Agent.
W I T N E S S E T H:
WHEREAS, the parties to this Joinder Agreement wish to
amend Schedule II to the Credit Agreement in the manner
hereinafter set forth; and
WHEREAS, this Joinder Agreement is entered into
pursuant to subsection 14.1 (b) of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, the
parties hereto hereby agree as follows:
1. Each of the undersigned Subsidiaries of the Company
hereby acknowledges that it has received and reviewed a copy (in
execution form) of the Credit Agreement, and agrees to:
(a) join the Credit Agreement as a Subsidiary Borrower or
Subsidiary Guarantor, as indicated with its signature
below;
(b) be bound by all covenants, agreements and
acknowledgements attributable to a Subsidiary Borrower
or Subsidiary Guarantor, as the case may be, in the
Credit Agreement; and
(c) perform all obligations required of it by the Credit
Agreement.
2. Each of the undersigned Subsidiaries of the Company
hereby represents and warrants that the representations and
warranties with respect to it contained in, or made or deemed
made by it in, Section 7 of the Credit Agreement are true and
correct on the date hereof.
176
<PAGE> 2
3. The address and jurisdiction of incorporation of
each undersigned Subsidiary of the Company is set forth in Annex
I to this Joinder Agreement.
4. THIS JOINDER AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the undersigned has caused
this Joinder Agreement to be duly executed and delivered in New
York, New York by its proper and duly authorized officer as of
the date set forth below.
[NAME OF SUBSIDIARY],
Dated:________________ as a Subsidiary [Guarantor]
[Borrower]
By:__________________________
Title:
HARMAN INTERNATIONAL INDUSTRIES,
INCORPORATED
By:_______________________
Title:
ACKNOWLEDGED AND AGREED TO:
CHEMICAL BANK,
as Administrative Agent
By:_______________________
Title:
[NAMES OF LENDERS]
177
<PAGE>
ANNEX I
[Insert administrative information concerning Subsidiaries]
178
<PAGE>
EXHIBIT B to
Credit Agreement
SCHEDULE AMENDMENT
SCHEDULE AMENDMENT, dated as of the date set forth
below, entered into pursuant to the MULTI-CURRENCY, MULTI-OPTION
CREDIT AGREEMENT, dated as of September 30, 1994 (as amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement"; terms defined therein being used herein as therein
defined), among HARMAN INTERNATIONAL INDUSTRIES, INCORPORATED,
the Subsidiary Borrowers and Subsidiary Guarantors parties
thereto, the Lenders parties thereto, NATIONSBANK OF NORTH
CAROLINA, N. A., as Co-Agent, CHEMICAL SECURITIES INC., as
Arranger and CHEMICAL BANK, as Administrative Agent.
W I T N E S S E T H:
WHEREAS, the parties to this Schedule Amendment wish
to amend Schedule III or IV, as specified in Annex I hereto, to
the Credit Agreement in the manner hereinafter set forth; and
WHEREAS, this Schedule Amendment is entered into
pursuant to subsection 14.1 (b) of the Credit Agreement;
NOW, THEREFORE, in consideration of the premises, the
parties hereto hereby agree as follows:
1. Schedule III or IV, as specified in Annex I hereto,
is hereby amended as set forth in Annex I hereto.
2. The Company hereby represents and warrants that,
after giving effect to the amendments effected hereby, the
representations and warranties contained in Section 7 of the
Credit Agreement are true and correct on the date hereof.
3. THIS SCHEDULE AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the undersigned has caused
this Schedule Amendment to be duly executed and delivered in New
179
<PAGE> 2
York, New York by its proper and duly authorized officer as of
the date set forth below.
Dated:_________________
HARMAN INTERNATIONAL INDUSTRIES,
INCORPORATED
By:_______________________
Title:
ACKNOWLEDGED AND AGREED TO:
CHEMICAL BANK,
as Administrative Agent
By:_______________________
Title:
[NAMES OF OTHER PARTIES, IF ANY, REQUIRED PURSUANT TO SUBSECTION
14.1 (b)]
180
<PAGE>
ANNEX I
[Describe amendments]
181
<PAGE>
EXHIBIT C to
Credit Agreement
[FORM OF BORROWING CERTIFICATE]
OFFICERS' CERTIFICATE
Pursuant to subsection 8.1(c) of the Credit Agreement,
dated as of September 30, 1994 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement";
terms defined therein being used herein as therein defined),
among Harman International Industries, Incorporated, a Delaware
corporation (the "Company"), the Subsidiary Borrowers and
Subsidiary Guarantors named therein, the several banks and other
financial institutions from time to time parties thereto (the
"Lenders"), Chemical Securities Inc., as arranger, Nationsbank of
North Carolina, N.A., as co-agent and Chemical Bank, a New York
banking corporation, as administrative agent for the Lenders, the
undersigned, ________________, the [President or any Vice
President] of the Company hereby certifies as follows in the name
of and on behalf of the Company:
1. The representations and warranties of the Company
(i) set forth in the Agreement or (ii) which are contained
in any other Loan Document to which the Company is a party,
are true and correct in all material respects on and as of
the date hereof with the same effect as if made on the date
hereof;
2. No Default or Event of Default has occurred and is
continuing as of the date hereof or after giving effect to
the Loans requested to be made on the date hereof;
3. __________________ is and at all time since
_____________ ___, 19__, has been, the duly elected and
qualified [Assistant] Secretary of the Company and the
signature set forth on the signature line below is such
officer's true and genuine signature;
and the undersigned [Assistant] Secretary of the Company hereby
certifies as follows in the name of and on behalf of the Company:
1. Attached hereto as Exhibit I is a true and
complete copy of resolutions duly adopted by the Board of
Directors of the Company on __________ __, ____; such
resolutions have not in any way been amended, modified,
revoked or rescinded and have been in full force and effect
since their adoption to and including the date hereof and
are now in full force and effect; and such resolutions are
the only corporate proceedings of the Company now in force
182
<PAGE> 2
relating to or affecting the matters referred to in Section
8.1(c)(i) of the Credit Agreement;
2. Attached hereto as Exhibit II is a true and
complete copy of the By-Laws of the Company as in effect at
all times since _________ __, ____ to and including the date
hereof; and attached hereto as Exhibit III is a true and
complete copy of the Certificate of Incorporation of the
Company as in effect at all times since _________ __, ____,
to and including the date hereof; and
3. Attached hereto as Exhibit IV is a true and
complete copy of resolutions duly adopted by the Board of
Directors of the each of the Domestic Subsidiary Borrowers
and Subsidiary Guarantors listed on Schedule II to the
Credit Agreement; such resolutions have not in any way been
amended, modified, revoked or rescinded and have been in
full force and effect since their adoption to and including
the date hereof and are now in full force and effect; and
such resolutions are the only corporate proceedings of each
of the Domestic Subsidiary Borrowers and Subsidiary
Guarantors now in force relating to or affecting the matters
referred to in Section 8.1(c)(ii) of the Credit Agreement;
4. The following persons are now duly elected and
qualified officers of the Company holding the offices
indicated next to their respective names below, and such
officers have held such offices with the Company at all
times since the date indicated next to their respective
titles, to and including the date hereof, and the signatures
appearing opposite their respective names below are the true
and genuine signatures of such officers, and each of such
officers is duly authorized to execute and deliver on behalf
of the Company the Credit Agreement and the other Loan
Documents to which the Company is a party and any
certificate or other document to be delivered by the Company
pursuant to the Credit Agreement or such other Loan
Documents;
Name Office Signature
---- ------ ---------
------------------ --------------- -------------------
------------------ --------------- -------------------
------------------ --------------- -------------------
5. Attached hereto as Exhibit V are specimen
signatures of officers of each Loan Party (other than the
Company) parties to the Credit Agreement on the date hereof
who are duly authorized to execute and deliver on behalf of
such Loan Party, the Credit Agreement.
183
<PAGE> 3
IN WITNESS WHEREOF, the undersigned have executed and
delivered this certificate as of the day and year set forth
below.
Dated: _________ __, 1994
HARMAN INTERNATIONAL INDUSTRIES,
INCORPORATED
--------------------------
Name:
Title: [President or Vice
President]
--------------------------
Name:
Title: [Secretary or
Assistant Secretary]
184
<PAGE>
EXHIBIT D to
Credit Agreement
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement, dated as of
September 30, 1994 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among Harman
International Industries, Incorporated (the "Company"), the
Subsidiary Borrowers and Subsidiary Guarantors named therein, the
several lenders parties thereto (the "Lenders"), Chemical
Securities Inc., as arranger, Nationsbank of North Carolina,
N.A., as co-agent, and Chemical Bank, as administrative agent for
the Lenders (in such capacity, the "Administrative Agent").
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them
in the Credit Agreement.
__________________ (the "Assignor") and ______________
(the "Assignee") agree as follows:
1. The Assignor hereby irrevocably sells and assigns
to the Assignee without recourse to the Assignor, and the
Assignee hereby irrevocably purchases and assumes from the
Assignor without recourse to the Assignor, as of the Effective
Date (as defined below), a ___% interest (the "Assigned
Interest") in and to the Assignor's rights and obligations under
the Credit Agreement, in a principal amount as set forth on
Schedule 1.
2. The Assignor (a) makes no representation or
warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in
connection with the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement, any other Loan
Document or any other instrument or document furnished pursuant
thereto, other than that the Assignor has not created any adverse
claim upon the interest being assigned by it hereunder and that
such interest is free and clear of any such adverse claim; and
(b) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Company, any of its Subsidiaries or any other obligor or the
performance or observance by the Company, any of its Subsidiaries
or any other obligor of any of their respective obligations under
the Credit Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto.
3. The Assignee (a) represents and warrants that it is
legally authorized to enter into this Assignment and Acceptance;
(b) confirms that it has received a copy of the Credit Agreement,
together with copies of the financial statements delivered
pursuant to subsection 7.1 thereof and such other documents and
information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and
185
<PAGE> 2
Acceptance; (c) agrees that it will, independently and without
reliance upon the Assignor, the Administrative Agent or any other
Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Credit
Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (d) appoints and
authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers and discretion under
the Credit Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto as
are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and (e)
agrees that it will be bound by the provisions of the Credit
Agreement and will perform in accordance with its terms all the
obligations which by the terms of the Credit Agreement are
required to be performed by it as a Lender including, if it is
organized under the laws of a jurisdiction outside the United
States, its obligation pursuant to subsection 6.6(b) of the
Credit Agreement.
4. The effective date of this Assignment and
Acceptance shall be ___________ __, 19__ (the "Effective Date").
Following the execution of this Assignment and Acceptance, it
will be delivered to the Administrative Agent for acceptance by
it and recording by the Administrative Agent pursuant to the
Credit Agreement, effective as of the Effective Date (which shall
not, unless otherwise agreed to by the Administrative Agent, be
earlier than five Business Days after the date of such acceptance
and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after
the Effective Date, the Administrative Agent shall make all
payments in respect of the Assigned Interest (including payments
of principal, interest, fees and other amounts) to the Assignee
whether such amounts have accrued prior to the Effective Date or
accrue subsequent to the Effective Date. The Assignor and the
Assignee shall make all appropriate adjustments in payments by
the Administrative Agent for periods prior to the Effective Date
or with respect to the making of this assignment directly between
themselves.
6. From and after the Effective Date, (a) the Assignee
shall be a party to the Credit Agreement and, to the extent
provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and under the other Loan
Documents and shall be bound by the provisions thereof and (b)
the Assignor shall, to the extent provided in this Assignment and
Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
7. This Assignment and Acceptance shall be governed by
and construed in accordance with the laws of the State of New
York.
186
<PAGE> 3
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment and Acceptance to be executed as of the date first
above written by their respective duly authorized officers on
Schedule 1 hereto.
187
<PAGE>
Schedule 1
to Assignment and Acceptance
relating to the Credit Agreement, dated as of September 30, 1994,
among
Harman International Industries, Incorporated (the "Company"),
the Subsidiary Borrowers and Subsidiary Guarantors named therein,
the several lenders parties thereto (the "Lenders"), Chemical
Securities Inc., as arranger, Nationsbank of North Carolina,
N.A., as co-agent, and Chemical Bank, as agent for the Lenders
(in such capacity, the "Administrative Agent")
-----------------------------------------------------------------
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Principal Commitment Percentage
Amount Assigned Assigned **
------------------- ---------------------
$ _______________ ____._________%
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By _________________ By __________________
Name: Name:
Title: Title:
-------------------
** Calculate the Commitment Percentage that is assigned to at
least 15 decimal places and show as a percentage of the
aggregate commitments of all Lenders.
188
<PAGE> 2
Accepted: Consented To:
CHEMICAL BANK, as [HARMAN INTERNATIONAL
Administrative Agent INDUSTRIES, INCORPORATED]
By _________________ By __________________
Name: Name:
Title: Title:
189
<PAGE>
EXHIBIT E-1 to
Credit Agreement
FORM OF OPINION OF JONES, DAY, REAVIS & POGUE AS COUNSEL
TO COMPANY, DOMESTIC SUBSIDIARY BORROWERS AND
DOMESTIC SUBSIDIARY GUARANTORS
___________ ____, 1994
Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
And each of the Lenders parties to the Credit Agreement
referred to below
We have acted as counsel to Harman International
Industries, Incorporated, a Delaware corporation (the "Company"),
the Domestic Subsidiary Borrowers named in Annex A hereto (the
"Domestic Subsidiary Borrowers") and the Subsidiary Guarantors
organized under the laws of the District of Columbia or a State
of the United States and named in Annex B hereto (the "Domestic
Subsidiary Guarantors") in connection with the Credit Agreement,
dated as of September ___, 1994 (the "Credit Agreement"), among
the Company, the Subsidiary Borrowers and Subsidiary Guarantors,
the lenders parties thereto (the "Lenders"), Chemical Securities
Inc., as arranger, Nationsbank of North Carolina, N.A., as co-
agent, and Chemical Bank, as administrative agent for the Lenders
(in such capacity, the "Administrative Agent").
The opinions expressed below are furnished to you
pursuant to subsection 8.1(g)(i) of the Credit Agreement. Unless
otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the
Credit Agreement.
In arriving at the opinions expressed below,
(a) we have examined a copy of the Credit Agreement
executed by the Company and each of the Subsidiary Borrowers and
Subsidiary Guarantors listed on the signature pages thereof;
(b) we have examined such corporate documents and
records of the Company, the Domestic Subsidiary Borrowers and
Domestic Subsidiary Guarantors and such other instruments and
certificates of public officials, officers and representatives of
the Company, the Domestic Subsidiary Borrowers and Domestic
Subsidiary Guarantors and other Persons as we have deemed
necessary or appropriate for the purposes of this opinion.
190
<PAGE>
Chemical Bank, as - 2 - _______________ ___, 1994
Administrative Agent
In arriving at the opinions expressed below, we have
made such investigations of law, in each case as we have deemed
appropriate as a basis for such opinions.
In rendering the opinions expressed below, we have
assumed, with your permission, without independent investigation
or inquiry, (a) the authenticity of all documents submitted to us
as originals, (b) the genuineness of all signatures on all
documents that we examined (other than those of the Company, the
Domestic Subsidiary Borrowers and Domestic Subsidiary Guarantors
and their respective officers) and (c) the conformity to
authentic originals of documents submitted to us as certified,
conformed or photostatic copies.
When our opinions expressed below are stated "to the
best of our knowledge," we have made reasonable and diligent
investigation of the subject matters of such opinions and have no
reason to believe that there exist any facts or other information
that would render such opinions incomplete or incorrect.
Based upon and subject to the foregoing, we are of the
opinion that:
1. Each of the Company, the Domestic Subsidiary
Borrowers and the Domestic Subsidiary Guarantors is duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its organization.
2. Each of the Company, the Domestic Subsidiary
Borrowers and the Domestic Subsidiary Guarantors has the
corporate power and authority, and the legal right, to make,
deliver and perform its obligations under the Credit Agreement
and to borrow under the Credit Agreement. Each of the Company,
the Domestic Subsidiary Borrowers and the Domestic Subsidiary
Guarantors has taken all necessary corporate action to authorize
the borrowings and the guarantees as appropriate on the terms and
conditions of the Credit Agreement and to authorize the
execution, delivery and performance of the Credit Agreement.
3. [Except for consents, authorizations, approvals,
notices and filings described on Schedule 1 attached hereto, all
of which have been obtained, made or waived and are in full force
and effect,] no consent or authorization of, approval by, notice
to, filing with or other act by or in respect of, any
Governmental Authority or any other Person is required in
connection with the borrowings or guarantees under the Credit
Agreement or with the execution, delivery, performance, validity
or enforceability of the Credit Agreement.
191
<PAGE>
Chemical Bank, as - 3 - _______________ ___, 1994
Administrative Agent
4. The Credit Agreement has been duly executed and
delivered on behalf of each of the Company, the Domestic
Subsidiary Borrowers and the Subsidiary Guarantors and
constitutes a legal, valid and binding obligation of the Company,
the Subsidiary Borrowers and the Subsidiary Guarantors,
enforceable against each such party in accordance with its terms.
5. The execution and delivery of the Credit Agreement
by each of the Company, the Domestic Subsidiary Borrowers and the
Domestic Subsidiary Guarantors, the performance by each such
party of its obligations thereunder, the consummation of the
transactions contemplated thereby, the compliance by the Company
and each of its Subsidiaries with any of the provisions thereof,
the borrowings and guarantees under the Credit Agreement and the
use of proceeds thereof, all as provided therein, (a) will not
violate, or constitute a default under, any Requirement of Law
or, to the best of our knowledge, any Contractual Obligations of
the Company, or of any of its Subsidiaries and (b) will not
result in, or require, the creation or imposition of any Lien on
any of its or their respective properties or revenues.
6. Neither the Company nor any Domestic Subsidiary
Borrower or Domestic Subsidiary Guarantor is (a) an "investment
company," or a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of 1940, as
amended, or (b) a "holding company" as defined in, or otherwise
subject to regulation under, the Public Utility Holding Company
Act of 1935. Neither the Company nor any Domestic Subsidiary
Borrower or Domestic Subsidiary Guarantor is subject to
regulation under any Federal or state statute or regulation which
limits its ability to incur Indebtedness.
Our opinion set forth in paragraph 4 is subject to the
effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at
law) and an implied covenant of good faith and fair dealing.
We are members of the bar of the States of New York,
__________, and __________ and we express no opinion as to the
laws of any jurisdiction other than the laws of the States of New
York, __________, __________, the General Corporate Law of the
State of Delaware and the Federal laws of the United States of
America.
192
<PAGE>
Chemical Bank, as - 4 - _______________ ___, 1994
Administrative Agent
[Describe reliance on Foreign Counsel for portion of
paragraph 4 relating to Foreign Subsidiary Borrowers].
Very truly yours,
193
<PAGE>
Schedule 1
CONSENTS, AUTHORIZATIONS, APPROVALS,
NOTICES AND FILINGS
194
<PAGE>
EXHIBIT E-2 to
Credit Agreement
FORM OF OPINION OF GENERAL COUNSEL TO COMPANY
AND ITS SUBSIDIARIES
______________ ____, 1994
Chemical Bank, as Administrative Agent
270 Park Avenue
New York, New York 10017
And each of the Lenders parties to the Credit Agreement
referred to below
I am General Counsel of Harman International
Industries, Incorporated, a Delaware corporation (the "Company"),
and have acted as such in connection with the authorization,
negotiation, execution and delivery of the Credit Agreement,
dated as of September ___, 1994 (the "Credit Agreement"), among
the Company, the Subsidiary Borrowers and Subsidiary Guarantors,
the lenders parties thereto (the "Lenders"), Chemical Securities
Inc., as arranger, Nationsbank of North Carolina, N.A., as co-
agent, and Chemical Bank, as administrative agent for the Lenders
(in such capacity, the "Administrative Agent"). In my capacity
as General Counsel of the Company I am also familiar with certain
matters concerning the Subsidiary Borrowers and the Subsidiary
Guarantors.
The opinions expressed below are furnished to you
pursuant to subsection [8.1( )(ii)] of the Credit Agreement.
Unless otherwise defined herein, terms defined in the Credit
Agreement and used herein shall have the meanings given to them
in the Credit Agreement.
In arriving at the opinions expressed below,
(a) I have examined a copy of the Credit Agreement
executed by the Company and each of the Subsidiary Borrowers and
Subsidiary Guarantors listed on the signature pages thereof;
(b) I have examined such corporate documents and
records of the Company, the Subsidiary Borrowers and Subsidiary
Guarantors and such other instruments and certificates of public
officials, officers and representatives of the Company, the
Subsidiary Borrowers and Subsidiary Guarantors and other Persons
as I have deemed necessary or appropriate for the purposes of
this opinion.
195
<PAGE>
Chemical Bank, as - 2 - _______________ ___, 1994
Administrative Agent
In arriving at the opinions expressed below, I have
made such investigations of law, in each case as I have deemed
appropriate as a basis for such opinions.
In rendering the opinions expressed below, I have
assumed, with your permission, without independent investigation
or inquiry, (a) the authenticity of all documents submitted to me
as originals, (b) the genuineness of all signatures on all
documents that I examined (other than those of the Company, the
Subsidiary Borrowers and Subsidiary Guarantors and their
respective officers) and (c) the conformity to authentic
originals of documents submitted to me as certified, conformed or
photostatic copies.
When my opinions expressed below are stated "to the
best of my knowledge," I have made reasonable and diligent
investigation of the subject matters of such opinions and have no
reason to believe that there exist any facts or other information
that would render such opinions incomplete or incorrect.
Based upon and subject to the foregoing, I am of the
opinion that:
1. Each of the Company, the Domestic Subsidiary
Borrowers and the Subsidiary Guarantors (a) has the corporate
power and authority and the legal right to own and operate its
property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged and (b) is
duly qualified as a foreign corporation and in good standing
under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires
such qualification, except to the extent that the failure to be
so qualified could not, in the aggregate, have a Material Adverse
Effect.
2. [Except for consents, authorizations, approvals,
notices and filings described on Schedule 1 attached hereto, all
of which have been obtained, made or waived and are in full force
and effect,] no consent or authorization of, approval by, notice
to, filing with or other act by or in respect of, any
Governmental Authority or any other Person is required in
connection with the borrowings or guarantees under the Credit
Agreement or with the execution, delivery, or performance of the
Credit Agreement.
3. The execution and delivery of the Credit Agreement
by the Company, the Subsidiary Borrowers and the Subsidiary
Guarantors, the performance by each such party of its obligations
thereunder, the consummation of the transactions contemplated
thereby, the compliance by the Company and each of its
196
<PAGE>
Chemical Bank, as - 3 - _______________ ___, 1994
Administrative Agent
Subsidiaries with any of the provisions thereof, the borrowings
and guarantees under the Credit Agreement and the use of proceeds
thereof, all as provided therein, (a) will not violate any
Contractual Obligations of the Company or of any of its
Subsidiaries and (b) will not result in, or require, the creation
or imposition of any Lien on any of its or their respective
properties or revenues pursuant to any such Contractual
Obligation.
To the best of my knowledge, no litigation,
investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or threatened by or against the
Company or any of its Subsidiaries or against any of its or their
respective properties or revenues (a) with respect to the Credit
Agreement, or (b) which could reasonably be expected to have a
Material Adverse Effect.
To the best of my knowledge, neither the Company nor
any of its Subsidiaries is in default under or with respect to
any Contractual Obligations in any respect which could reasonably
be expected to have a Material Adverse Effect.
I am a member of the bar of the State of ______________
and I express no opinion as to the laws of any jurisdiction other
than the laws of the State of _____________ and the Federal laws
of the United States of America.
Very truly yours,
197
<PAGE>
Schedule 1
CONSENTS, AUTHORIZATIONS, APPROVALS,
NOTICES AND FILINGS
198
<PAGE>
EXHIBIT E-3 to
Credit Agreement
OPINIONS RELATING TO THE
FOREIGN SUBSIDIARY BORROWERS
Opinions for the Foreign Subsidiary Borrowers:
1. The Foreign Subsidiary Borrower is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization (the "Jurisdiction").
2. The Foreign Subsidiary Borrower has the corporate
power and authority, and the legal right, to make, deliver and
perform its obligations under the Credit Agreement and to borrow
under the Credit Agreement. The Foreign Subsidiary Borrower has
taken all necessary corporate action to authorize the performance
of its obligations as a "Foreign Subsidiary Borrower" under the
Credit Agreement and to authorize the execution, delivery and
performance of the Credit Agreement.
3. Except for consents, authorizations, approvals,
notices and filings described on an attached schedule, all of
which have been obtained, made or waived and are in full force
and effect, no consent or authorization of, approval by, notice
to, filing with or other act by or in respect of, any
Governmental Authority or any other Person is required in
connection with the borrowings by the Foreign Subsidiary Borrower
under the Credit Agreement or with the execution, delivery,
performance, validity or enforceability of the Credit Agreement.
4. The Credit Agreement has been duly executed and
delivered on behalf of the Foreign Subsidiary Borrower.
5. The execution and delivery of the Credit Agreement
by the Foreign Subsidiary Borrower, the performance of its
obligations thereunder, the consummation of the transactions
contemplated thereby, the compliance by the Foreign Subsidiary
Borrower with any of the provisions thereof, the borrowings under
the Credit Agreement and the use of proceeds thereof, all as
provided therein, (a) will not violate, or constitute a default
under, any Requirement of Law or any Contractual Obligations of
the Foreign Subsidiary Borrower and (b) will not result in, or
require, the creation or imposition of any Lien on any of its
properties or revenues.
6. There are no taxes imposed by the jurisdiction of
organization of the Foreign Subsidiary Borrower (a) on or by
virtue of the execution, delivery, enforcement or performance of
the Credit Agreement or (b) on any payment to be made by the
Foreign Subsidiary Borrower pursuant to the Credit
199
<PAGE> 2
Agreement other than any Non-Excluded Taxes payable by the
Foreign Subsidiary Borrower as provided in subsection 6.6 of the
Credit Agreement.
7. To ensure the legality, validity, enforceability or
admissibility in evidence of the Credit Agreement, it is not
necessary that the Credit Agreement or any other Loan Documents
or any other document be filed, registered or recorded with, or
executed or notarized before, any court of other authority of the
Jurisdiction or that any registration charge or stamp or similar
tax be paid on or in respect of the Credit Agreement.
8. The Credit Agreement is in proper legal form under
the laws of the Jurisdiction for the enforcement thereof against
the Foreign Subsidiary Borrower under the laws of the
Jurisdiction.
9. In any action or proceeding arising out of or
relating to the Credit Agreement in any court in the
Jurisdiction, such court would recognize and give effect to the
choice of law provisions in the Credit Agreement wherein the
parties thereto agree that the Credit Agreement shall be governed
by, and construed and interpreted in accordance with, the laws of
the State of New York. Such court also would award a judgment in
United States dollars.
10. It is not necessary under the laws of the
Jurisdiction (a) in order to enable the Administrative Agent and
the Lenders or any of them to enforce their respective rights
under the Credit Agreement or (b) by reason of the execution of
the Credit Agreement [or the Joinder Agreement to which the
Foreign Subsidiary Borrower is a party] or the performance of the
Credit Agreement that any of them should be licensed, qualified
or entitled to carry on business in the Jurisdiction.
11. Neither the Administrative Agent nor any of the
Lenders will be deemed to be resident, domiciled, carrying on
business or subject to taxation in the Jurisdiction merely by
reason of the execution of the Credit Agreement [or the Joinder
Agreement to which the Foreign Subsidiary Borrower is a party] or
the performance or enforcement of any thereof. The performance
by the Administrative Agent and the Lenders or any of them of any
action required or permitted under the Credit Agreement will not
violate any law or regulation, or be contrary to the public
policy, of the Jurisdiction.
12. If any judgment of a competent court outside the
Jurisdiction were rendered against the Foreign Subsidiary
Borrower in connection with any action arising out of or relating
to the Credit Agreement, such judgment would be recognized and
could be sued upon in the courts of the Jurisdiction, and such
courts would grant a judgment which would be enforceable against
the Foreign Subsidiary Borrower
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in the Jurisdiction without any retrial unless it is shown that
(a) the foreign court did not have jurisdiction in accordance
with its jurisdictional rules, (b) the party against whom the
judgment of such foreign court was obtained had no notice of the
proceedings or (iii) the judgment of such foreign court was
obtained through collusion or fraud or was based upon clear
mistake of fact or law.
201