REVOLVING CREDIT
AGREEMENT
Dated as of July 18, 2000
between
HELIX TECHNOLOGY CORPORATION
and
FLEET NATIONAL BANK
TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION.................................1
1.1. Definitions..................................................1
1.2. Rules of Interpretation......................................16
2. THE REVOLVING CREDIT FACILITY...........................................17
2.1. Commitment to Lend...........................................17
2.2. Commitment Fee...............................................17
2.3. Reduction of Total Commitment................................17
2.4. The Revolving Credit Notes...................................18
2.5. Interest on Revolving Credit Loans...........................18
2.6. Requests for Revolving Credit Loans..........................18
2.7. Conversion Options...........................................19
2.7.1. Conversion to Different Type of Revolving
Credit Loan.......................................19
2.7.2. Continuation of Type of Revolving Credit Loan.....19
2.7.3. LIBOR Rate Loans..................................19
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.................................20
3.1. Maturity.....................................................20
3.2. Mandatory Repayments of Revolving Credit Loans...............20
3.2.1. Revolving Credit Loans Exceed Commitment..........20
3.2.2. Asset Sales.......................................20
3.3. Optional Repayments of Revolving Credit Loans................20
4. LETTERS OF CREDIT.......................................................21
4.1. Letter of Credit Commitments.................................21
4.1.1. Commitment to Issue Letters of Credit.............21
4.1.2. Letter of Credit Applications.....................21
4.1.3. Terms of Letters of Credit........................21
4.2. Reimbursement Obligation of the Borrower.....................21
4.3. Letter of Credit Payments....................................22
4.4. Obligations Absolute.........................................22
4.5. Reliance by Issuer...........................................23
4.6. Letter of Credit Fee.........................................23
4.7. Reimbursements Funded by Revolving Credit Loans..............23
5. CERTAIN GENERAL PROVISIONS..............................................23
5.1. Closing Fee..................................................23
5.2. Funds for Payments...........................................23
5.2.1. Payments to Bank..................................23
5.2.2. No Offset, etc....................................24
5.3. Computations.................................................24
5.4. Inability to Determine LIBOR Rate............................24
5.5. Illegality...................................................25
5.6. Additional Costs, etc........................................25
5.7. Capital Adequacy.............................................26
5.8. Certificate..................................................27
5.9. Indemnity....................................................27
5.10. Interest After Default......................................27
5.10.1. Overdue Amounts..................................27
5.10.2. Amounts Not Overdue..............................27
6. REPRESENTATIONS AND WARRANTIES..........................................28
6.1. Corporate Authority..........................................28
6.1.1. Incorporation; Good Standing......................28
6.1.2. Authorization.....................................28
6.1.3. Enforceability....................................28
6.2. Governmental Approvals.......................................28
6.3. Title to Properties; Leases..................................29
6.4. Financial Statements; Projections and Solvency...............29
6.4.1. Fiscal Year.......................................29
6.4.2. Financial Statements..............................29
6.4.3. Projections.......................................29
6.4.4. Solvency..........................................30
6.5. No Material Changes, etc.....................................30
6.6. Franchises, Patents, Copyrights, etc.........................30
6.7. Litigation...................................................30
6.8. No Materially Adverse Contracts, etc.........................30
6.9. Compliance with Other Instruments, Laws, etc.................31
6.10. Tax Status..................................................31
6.11. No Event of Default.........................................31
6.12. Holding Company and Investment Company Acts.................31
6.13. Absence of Financing Statements, etc........................31
6.14. Certain Transactions........................................31
6.15. Employee Benefit Plans......................................32
6.15.1. In General.......................................32
6.15.2. Terminability of Welfare Plans...................32
6.15.3. Guaranteed Pension Plans.........................32
6.15.4. Multiemployer Plans..............................33
6.16. Use of Proceeds.............................................33
6.16.1. General..........................................33
6.16.2. Regulations U and X..............................33
6.16.3. Ineligible Securities............................33
6.17. Environmental Compliance....................................33
6.18. Subsidiaries, etc...........................................35
6.19. Chief Executive Office......................................35
6.20. Capitalization Documents....................................36
6.21. Insurance...................................................36
6.22. Disclosure..................................................36
7. AFFIRMATIVE COVENANTS OF THE BORROWER...................................36
7.1. Punctual Payment.............................................36
7.2. Maintenance of Office........................................36
7.3. Records and Accounts.........................................37
7.4. Financial Statements, Certificates and Information...........37
7.5. Notices......................................................38
7.5.1. Defaults..........................................38
7.5.2. Environmental Events..............................38
7.5.3. Notification of Claim against Property............39
7.5.4. Notice of Litigation and Judgments................39
7.6. Corporate Existence; Maintenance of Properties...............39
7.7. Insurance....................................................40
7.8. Taxes........................................................40
7.9. Inspection of Properties and Books, etc......................40
7.9.1. General...........................................40
7.9.2. Appraisals........................................40
7.9.3. Communications with Accountants...................41
7.10. Compliance with Laws, Contracts, Licenses, and Permits......41
7.11. Employee Benefit Plans......................................41
7.12. Use of Proceeds.............................................41
7.13. Replacement Instruments.....................................42
7.14. New Guarantors..............................................42
7.15. Further Assurances..........................................42
7.16. Ownership of Guarantors.....................................42
7.17. Inactive Subsidiaries.......................................42
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER..............................43
8.1. Restrictions on Indebtedness.................................43
8.2. Restrictions on Liens........................................44
8.3. Restrictions on Investments..................................46
8.4. Restricted Payments..........................................47
8.5. Merger, Consolidation and Disposition of Assets..............48
8.5.1. Mergers and Acquisitions..........................48
8.5.2. Disposition of Assets.............................49
8.6. Sale and Leaseback...........................................49
8.7. Compliance with Environmental Laws...........................49
8.8. Employee Benefit Plans.......................................49
8.9. Business Activities..........................................50
8.10. Fiscal Year.................................................50
8.11. Transactions with Affiliates................................50
8.12. Upstream Limitations........................................50
8.13. Inconsistent Agreements.....................................51
8.14. Modification of Capitalization Documents....................51
8.15. Negative Pledge.............................................51
9. FINANCIAL COVENANTS OF THE BORROWER.....................................51
9.1. Leverage Ratio...............................................51
9.2. Quick Ratio..................................................51
9.3. Profitable Operations........................................51
10. CLOSING CONDITIONS.....................................................52
10.1. Loan Documents..............................................52
10.2. Certified Copies of Charter Documents.......................52
10.3. Corporate Action............................................52
10.4. Incumbency Certificate......................................52
10.5. UCC Search Results.........................................52
10.6. Certificates of Insurance...................................52
10.7. Opinion of Counsel..........................................53
10.8. Payment of Fees.............................................53
10.9. No Material Adverse Change..................................53
10.10. Compliance Certificate.....................................53
10.11. Proceedings and Documents..................................53
11. CONDITIONS TO ALL BORROWINGS...........................................53
11.1. Representations True; No Event of Default...................53
11.2. No Legal Impediment.........................................54
11.3. Governmental Regulation.....................................54
12. EVENTS OF DEFAULT; ACCELERATION; ETC...................................54
12.1. Events of Default and Acceleration..........................54
12.2. Termination of Commitments..................................57
12.3. Remedies....................................................57
13. SETOFF.................................................................58
14. EXPENSES AND INDEMNIFICATION...........................................58
14.1. Expenses....................................................58
14.2. Indemnification.............................................58
14.3. Survival....................................................59
15. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION..........................59
15.1. Confidentiality.............................................59
15.2. Prior Notification..........................................60
15.3. Other.......................................................60
16. SURVIVAL OF COVENANTS, ETC.............................................60
17. ASSIGNMENT AND PARTICIPATION...........................................60
17.1. Assignment by Bank..........................................60
17.2. Participation by Bank.......................................61
17.3. Assignment by Borrower......................................62
18. NOTICES, ETC...........................................................62
19. GOVERNING LAW..........................................................62
20. HEADINGS...............................................................63
21. COUNTERPARTS...........................................................63
22. ENTIRE AGREEMENT, ETC..................................................63
23. WAIVER OF JURY TRIAL...................................................63
24. CONSENTS, AMENDMENTS, WAIVERS, ETC.....................................64
25. USURY..................................................................64
26. SEVERABILITY...........................................................64
Exhibits and Schedules
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Loan Request
Exhibit C Form of Compliance Certificate
Exhibit D Investment Policy
Schedule 6.1.1 Foreign Qualification Exceptions
Schedule 6.3 Title to Properties
Schedule 6.7 Litigation
Schedule 6.17 Environmental Compliance
Schedule 6.18 Subsidiaries, Joint Ventures
Schedule 6.21 Insurance
Schedule 8.1 Indebtedness
Schedule 8.2 Liens
Schedule 8.3 Investments
Schedule 8.15 Restrictions on Granting Liens
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of July 18, 2000, by and
among HELIX TECHNOLOGY CORPORATION (the "Borrower"), a Delaware corporation
having its principal place of business at 9 Hampshire Street, Mansfield,
Massachusetts 02048, and FLEET NATIONAL BANK, a national banking association
(the "Bank").
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions.
The following terms shall have the meanings set forth in this
Section 1 or elsewhere in the provisions of this Credit Agreement referred to
below:
Accounts Receivable. All rights of the Borrower or any of its
Subsidiaries to payment for goods sold, leased or otherwise marketed in the
ordinary course of business and all rights of the Borrower or any of its
Subsidiaries to payment for services rendered in the ordinary course of business
and all sums of money or other proceeds due thereon pursuant to transactions
with account debtors, except for that portion of the sum of money or other
proceeds due thereon that relate to sales, use or property taxes in conjunction
with such transactions, recorded on books of account in accordance with
generally accepted accounting principles.
Adjustment Date. The first day of the month immediately following
the month in which a Compliance Certificate is to be delivered by the Borrower
pursuant to Section 7.4(c).
Affiliate. Any Person that would be considered to be an affiliate of
the Borrower under Rule 144(a) of the Rules and Regulations of the Securities
and Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
Applicable Margin. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable margin set
forth below with respect to the Borrower's Leverage Ratio, as determined at the
end of the fiscal quarter of the Borrower and its Subsidiaries ended immediately
prior to the applicable Rate Adjustment Period.
Base Rate LIBOR Rate Credit Commitment
Level Leverage Ratio Loans Loans Fees Fees
------- ----------------------- --------- ----------- -------- -----------
I Greater than 0.75:1.00 0.50% 1.50% 1.50% 0.500%
------- ----------------------- --------- ----------- -------- -----------
II Equal to or less than 0.25% 1.25% 1.25% 0.375%
0.75:1.00 but greater
than 0.50:1.00
------- ----------------------- --------- ----------- -------- -----------
III Less than or equal to 0.25% 1.25% 1.25% 0.300%
0.50:1.00
------- ----------------------- --------- ----------- -------- -----------
Notwithstanding the foregoing, if the Borrower fails to deliver any
Compliance Certificate pursuant to Section 7.4(c) hereof then, for the period
commencing on the Adjustment Date to occur subsequent to such failure through
the date immediately following the date on which such Compliance Certificate is
delivered, the Applicable Margin shall be the highest Applicable Margin set
forth above.
Asset Sale. Any one or series of related transactions in which any
Person conveys, sells, transfers or otherwise disposes of, directly or
indirectly, any of its properties, businesses or assets (including the sale or
issuance of capital stock of any Subsidiary other than to the Borrower or any
Subsidiary) whether owned on the Closing Date or thereafter acquired, excluding,
however, in each case, any Excluded Disposition.
Balance Sheet Date. December 31, 1999.
Bank. As defined in the preamble hereto.
Bank's Office. The Bank's office located at 100 Federal Street, Boston,
Massachusetts 02110, or at such other location as the Bank may designate from
time to time.
Bank's Special Counsel. Bingham Dana LLP or such other counsel as may
be approved by the Bank.
Base Rate. The higher of (a) the variable annual rate of interest so
designated from time to time by the Bank as its "prime rate," such rate being a
reference rate and not necessarily representing the lowest or best rate being
charged to any customer, and (b) one-half of one percent (1/2%) above the
Federal Funds Effective Rate. For the purposes of this definition, "Federal
Funds Effective Rate" shall mean for any day, the rate per annum equal to 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 for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Bank from three
funds brokers of recognized standing selected by the Bank. Changes in the Base
Rate resulting from any changes in Bank's "prime rate" shall take place
immediately without notice or demand of any kind.
Base Rate Loans. Revolving Credit Loans bearing interest calculated by
reference to the Base Rate.
Borrower. As defined in the preamble hereto.
Business Day. Any day on which banking institutions in Boston,
Massachusetts, are open for the transaction of banking business and, in the case
of LIBOR Rate Loans, also a day which is a LIBOR Business Day.
Capitalization Documents. Collectively, the formation documents
(including, without limitation, any certificate of incorporation and by-laws) of
the Borrower and its Subsidiaries.
Capitalized Leases. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with generally accepted accounting
principles.
Cash Equivalents. As to the Borrower and its Subsidiaries, any
investment made in accordance with the Investment Policy.
CERCLA. See Section 6.17(a).
Closing Date. The first date on which the conditions set forth in
Section 10 have been satisfied and any Revolving Credit Loans are available to
be made or any Letter of Credit is available to be issued hereunder.
Code. The Internal Revenue Code of 1986.
Commitment. The obligation of the Bank to make Revolving Credit Loans
to, and to issue, extend and renew Letters of Credit for the account of, the
Borrower up to an aggregate outstanding principal amount of $25,000,000, as such
amount may be reduced from time to time or terminated hereunder.
Commitment Fee Rate. The applicable rate per annum set forth in the
chart contained in the definition of "Applicable Margin" under the heading
"Commitment Fees".
Compliance Certificate. See Section 7.4(c).
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with generally accepted accounting
principles.
Consolidated Current Liabilities. All liabilities and other
Indebtedness of the Borrower and its Subsidiaries on a consolidated basis
maturing on demand or within one (1) year from the date as of which Consolidated
Current Liabilities are to be determined, and such other liabilities as may
properly be classified as current liabilities in accordance with generally
accepted accounting principles other than Indebtedness of the type described in
clause (i) of the definition of the term "Indebtedness" and including all
outstanding Revolving Credit Loans, Unpaid Reimbursement Obligations and the
Maximum Drawing Amount of all issued and outstanding Letters of Credit, whether
or not so classified but excluding therefrom any liabilities agreed to in
writing by the Bank and the Borrower from time to time, provided for purposes of
calculating liabilities of the Borrower under Revolving Credit Loans for any
date of determination,
the amount shall be the average daily outstanding amount of Revolving Credit
Loans for the immediately preceding ninety (90) days from such date of
determination.
Consolidated Intangible Assets. The total book value of all assets of
the Borrower and its Subsidiaries (determined on a consolidated basis in
accordance with generally accepted accounting principles) properly classified as
intangible under generally accepted accounting principles, including such items
as good will, the purchase price of acquired assets in excess of the fair market
value thereof, trademarks, trade names, services marks, brand names, copyrights,
patents and licenses, and rights with respect to the foregoing.
Consolidated PreTax Income. For any period, consolidated income of the
Borrower and its Subsidiaries before taxes, as reported by the Borrower in
accordance with generally accepted accounting principles; provided that
following a Permitted Acquisition, the Consolidated PreTax Income for the fiscal
quarter in which such Permitted Acquisition occurred and each of the three
fiscal quarters immediately following such Permitted Acquisition shall be
calculated with reference to the audited historical financial results of the
Person so acquired (or, to the extent such financial results are unaudited, such
unaudited results shall have been prepared in a manner which is acceptable to
the Bank) and the Borrower and its Subsidiaries for the applicable period after
giving effect on a pro forma basis to such Permitted Acquisition and assuming
that such Permitted Acquisition had been consummated at the beginning of such
period with such adjustments which are attributable to the change in ownership
and/or management resulting from such Permitted Acquisition as are acceptable to
the Bank.
Consolidated Quick Assets. All cash, Cash Equivalents and Accounts
Receivable of the Borrower and its Subsidiaries on a consolidated basis that, in
accordance with generally accepted accounting principles, are properly
classified as current assets, provided that Accounts Receivable shall be taken
at their face value less reserves determined to be sufficient in accordance with
generally accepted accounting principles.
Consolidated Tangible Net Worth. (a) At any time of determination when
the amount of Consolidated Intangible Assets is equal to or less than
$1,000,000, the excess of Consolidated Total Assets over Consolidated Total
Liabilities.
(b) At any time of determination when the amount of Consolidated
Intangible Assets is greater than $1,000,000, the excess of Consolidated Total
Assets over Consolidated Total Liabilities, and less, without duplication, the
sum of:
(i) the amount of Consolidated Intangible Assets; plus
(ii) all amounts representing any write-up in the book value
of any assets of the Borrower or its Subsidiaries resulting from a
revaluation thereof subsequent to the Balance Sheet Date, excluding (A)
adjustments to translate foreign assets and liabilities for changes in
foreign exchange rates made in accordance with Financial Accounting
Standards Board Statement No. 52 and (B)
write-ups of assets acquiredin any Permitted Acquisition made in
connection with such Permitted Acquisition (but not any subsequent
revaluations thereof); plus
(iii) to the extent otherwise includable in the computation of
Consolidated Tangible Net Worth, any equity subscriptions receivable.
Consolidated Total Assets. The sum of (a) all assets ("consolidated
balance sheet assets") of the Borrower and its Subsidiaries determined on a
consolidated basis in accordance with generally accepted accounting principles,
plus (b) without duplication, all assets leased by the Borrower or any
Subsidiary as lessee under any Synthetic Lease to the extent that such assets
would have been consolidated balance sheet assets had the Synthetic Lease been
treated for accounting purposes as a Capitalized Lease, plus (c) without
duplication, all sold receivables referred to in clause (g) of the definition of
the term "Indebtedness" to the extent that such receivables would have been
consolidated balance sheet assets had they not been sold.
Consolidated Total Liabilities. All liabilities of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles and classified as such on the consolidated
balance sheet of the Borrower and its Subsidiaries and all other Indebtedness of
the Borrower and its Subsidiaries, whether or not so classified other than
Indebtedness of the type described in clause (i) of the definition of the term
"Indebtedness".
Conversion Request. A notice given by the Borrower to the Bank of
the Borrower's election to convert or continue a Revolving Credit Loan in
accordance with Section 2.7.
Credit Agreement. This Revolving Credit Agreement, including the
Schedules and Exhibits hereto.
Default. See Section 12.1.
Distribution. The declaration or payment of any dividend on or in
respect of any shares of any class of capital stock of the Borrower; the
purchase, redemption, or other retirement of any shares of any class of capital
stock of the Borrower, directly or indirectly through a Subsidiary of the
Borrower or otherwise; the return of capital by the Borrower to its shareholders
as such; or any other distribution on or in respect of any shares of any class
of capital stock of the Borrower, in each case other than dividends payable
solely in shares of common stock of the Borrower.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Lending Office. Initially, the office of the Bank designated
as such by notice to the Borrower; thereafter, such other office of the Bank, if
any, located within the United States that will be making or maintaining Base
Rate Loans.
Domestic Subsidiary. Any Subsidiary of the Borrower other than a
Foreign Subsidiary.
Drawdown Date. The date on which any Revolving Credit Loan is made or
is to be made, and the date on which any Revolving Credit Loan is converted or
continued in accordance with Section 2.7.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Guaranteed Pension Plan or a Multiemployer Plan.
Environmental Laws. See Section 6.17(a).
EPA. See Section 6.17(b).
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder.
Eurocurrency Reserve Rate. For any day with respect to a LIBOR Rate
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
Event of Default. See Section 12.1.
Excluded Disposition. Any of the following: (a) the acquisition or
lease of or the sale, lease or other disposition of assets in the ordinary
course of business consistent with past practices, (b) the sale or other
disposition of obsolete or worn-out property, (c) the sale, lease or other
disposition of assets by the Borrower to any Guarantor, by any Guarantor to the
Borrower or by any Guarantor to any other Guarantor, (d) the sale, lease or
other disposition of assets by any Subsidiary of the Borrower which is not a
Guarantor to any other Subsidiary of the Borrower which is not a Guarantor, (e)
the sale or discount without recourse of Accounts Receivable arising in the
ordinary course of business in connection with the compromise or collection
thereof and not in connection with any financing transaction, provided, that, in
the case of any Foreign Subsidiary, this clause (e) shall also include any sale
or discount of Accounts Receivable made with recourse to such Subsidiary if
effected in the ordinary course of business and if such sale
or discount is consistent with customary practices in such Foreign Subsidiary's
country of business and such sale or discount is otherwise permitted under this
Credit Agreement, (f) licenses of patents, trademarks and other intellectual
property rights granted by the Borrower or any of its Subsidiaries in the
ordinary course of business, (g) the subsequent sale or other disposition in the
ordinary course of business of any Investment permitted by Section 8.3(a), (h)
to the extent it would be considered an Asset Sale, any Restricted Payment
permitted by Section 8.4, (i) leases or subleases of assets of the Borrower or
any Subsidiary granted to third parties by the Borrower or any of its
Subsidiaries in the ordinary course of business, and (j) so long as no Default
or Event of Default shall have occurred and be continuing, the conveyance, sale,
lease, transfer or other disposition of any properties or assets (other than as
set forth in clauses (a) through (i) of this definition) resulting in no more
than $3,000,000 in aggregate proceeds in any fiscal year. For avoidance of
doubt, the Borrower and the Bank agree that only the proceeds referred to in
clause (j) hereof which are in excess of $3,000,000 shall constitute the
proceeds of Asset Sales; the Borrower shall be entitled to retain the initial
$3,000,000 of such proceeds , whether such proceeds are a result of one
transaction or a series of transactions.
Foreign Subsidiary. Any Subsidiary of the Borrower organized in a
jurisdiction other than the United States of America, any state thereof, or the
District of Columbia.
Generally accepted accounting principles. (a) When used in
Section 9, whether directly or indirectly through reference to a capitalized
term used therein, means (i) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(ii) to the extent consistent with such principles, the accounting practice of
the Borrower reflected in its financial statements for the year ended on the
Balance Sheet Date, and (b) when used in general, other than as provided above,
means principles that are (i) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (ii) consistently applied with past financial
statements of the Borrower adopting the same principles, provided that in each
case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guarantors. Collectively, each wholly-owned Domestic Subsidiary of the
Borrower existing on the Closing Date other than the Inactive Subsidiaries and
each other Person which is required to be or become a guarantor from time to
time pursuant to Section 7.14 hereof. Each such Person shall be a party to the
Guaranty.
Guaranty. Collectively, each Guaranty, dated or to be dated on or prior
to the Closing Date or such later date as is required by Section 7.14 hereof,
made by each Guarantor in favor of the Bank pursuant to which each wholly-owned,
Domestic Subsidiary of the Borrower (other than the Inactive Subsidiaries)
guaranties to the Bank the payment and performance of the Obligations and in
form and substance satisfactory to the Bank.
Hazardous Substances. See Section 6.17(b).
Inactive Subsidiaries. Collectively, CTI Nuclear Inc., an Ohio
corporation, Strathmore Corporation, an Ohio corporation and Cyrogenics
Technology Inc., a Delaware corporation.
Indebtedness. As to any Person and, subject to clause (G) of the final
paragraph of this definition, whether recourse is secured by or is otherwise
available against all or only a portion of the assets of such Person and whether
or not contingent, but without duplication:
(a) every obligation of such Person for money borrowed,
(b) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or
businesses,
(c) every reimbursement obligation of such Person with respect
to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person,
(d) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including securities
repurchase agreements but excluding trade accounts payable or accrued
expenses arising in the ordinary course of business which are not more
than thirty (30) days overdue or which are being contested in good
faith),
(e) every obligation of such Person under any Capitalized
Lease,
(f) every obligation of such Person under any lease (a
"synthetic lease") treated as an operating lease under generally
accepted accounting principles and as a loan or financing for U.S.
income tax purposes,
(g) all sales by such Person of (i) accounts or general
intangibles for money due or to become due, (ii) chattel paper,
instruments or documents creating or evidencing a right to payment of
money or (iii) other receivables (collectively "receivables"), whether
pursuant to a purchase facility or otherwise, other than (x) in
connection with the disposition of the business operations of such
Person relating thereto or a disposition of defaulted receivables for
collection and not as a financing arrangement, and together with any
obligation of such Person to pay any discount, interest, fees,
indemnities, penalties,
recourse, expenses or other amounts in connection therewith or
(y) a disposition of receivables, with or without recourse, by a
Foreign Subsidiary in the ordinary course of business to the extent
such disposition is consistent with customary practices in such
Foreign Subsidiary's country of business,
(h) every obligation of such Person (an "equity related
purchase obligation") to purchase, redeem, retire or otherwise acquire
for value any shares of capital stock of any class issued by such
Person, any warrants, options or other rights to acquire any such
shares, or any rights measured by the value of such shares, warrants,
options or other rights, provided that any equity related purchase
obligation arising when the Borrower reduces the number of stock
options of an employee at the time such employee exercises its stock
options pursuant to any Stock Option Plan and agrees to subsequently
pay the employee's taxes resulting from such exercise shall not be
deemed an equity related purchase obligation until such time as the
Borrower makes such reduction, and excluding, however, in each case,
(i) any obligation of such Person to purchase, redeem, retire or
otherwise acquire any of the foregoing from present or former officers,
directors or employees of such Person upon the death, disability or
termination of employment of any such officer, director or employee
pursuant to any of the Stock Option Plans and (ii) any equity related
purchase obligations which do not require any purchases, redemptions,
retirement or other acquisition for value prior to the date on which
all Revolving Credit Loans have been indefeasibly repaid in full in
cash, all issued and outstanding Letters of Credit have been terminated
or returned to the Bank and cancelled and the Commitment has been
permanently reduced to zero,
(i) every obligation of such Person under any forward
contract, futures contract, swap, option or other financing agreement
or arrangement (including, without limitation, caps, floors, collars
and similar agreements), the value of which is dependent upon interest
rates, currency exchange rates, commodities or other indices (a
"derivative contract"),
(j) every obligation in respect of Indebtedness of any other
entity (including any partnership in which such Person is a general
partner) to the extent that such Person is liable therefor as a result
of such Person's ownership interest in or other relationship with such
entity, except to the extent that the terms of such Indebtedness
provide that such Person is not liable therefor and such terms are
enforceable under applicable law,
(k) every obligation, contingent or otherwise, of such Person
guarantying, or having the economic effect of guarantying or otherwise
acting as surety for, any obligation of a type described in any of
clauses (a) through (k) (the "primary obligation") of another Person
(the "primary obligor"), in any manner, whether directly or indirectly,
and including, without limitation, any obligation of such Person (i) to
purchase or pay (or advance or supply funds for the purchase of) any
security for the payment of such primary obligation, (ii) to purchase
property, securities or services for the purpose of assuring the
payment
of such primary obligation, or (iii) to maintain working
capital, equity capital or other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to
pay such primary obligation; provided, however, that endorsements of
instruments for deposit or collection in the ordinary course of
business shall be excluded from this clause (k) and shall in no event
be deemed to constitute "Indebtedness" for purposes of this Credit
Agreement.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (A) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with generally accepted
accounting principles, (B) any Capitalized Lease shall be the principal
component of the net present value (calculated using a discount rate equal to
the interest rate implicit in such transaction) of the aggregate of the rentals
obligation under such Capitalized Lease payable over the term thereof that is
not subject to termination by the lessee, (C) any sale of receivables shall be
the amount of unrecovered capital or principal investment of the purchaser
(other than the Borrower or any of its wholly-owned Subsidiaries) thereof,
excluding amounts representative of yield or interest earned on such investment,
(D) any synthetic lease shall be the stipulated loss value, termination value or
other equivalent amount, (E) any derivative contract shall be the maximum amount
of any termination or loss payment required to be paid by such Person if such
derivative contract were, at the time of determination, to be terminated by
reason of any event of default or early termination event thereunder, whether or
not such event of default or early termination event has in fact occurred, (F)
any equity related purchase obligation shall be the maximum fixed redemption or
purchase price thereof inclusive of any accrued and unpaid dividends to be
comprised in such redemption or purchase price and (G) any Indebtedness as to
which recourse is secured by or is otherwise available against only a portion of
the assets of a Person shall be deemed to be limited to the lesser of the fair
market value of such portion of such assets and the principal amount
outstanding, if such Person has not assumed or become liable for the payment of
such Indebtedness.
Ineligible Securities. Securities which may not be underwritten or
dealt in by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as amended.
Interest Payment Date. (a) As to any Base Rate Loan, the last day of
the calendar quarter with respect to interest accrued during such calendar
quarter, including, without limitation, the calendar quarter which includes the
Drawdown Date of such Base Rate Loan; and (b) as to any LIBOR Rate Loan in
respect of which the Interest Period is (i) 3 months or less, the last day of
such Interest Period and (ii) more than 3 months, the date that is 3 months from
the first day of such Interest Period and, in addition, the last day of such
Interest Period.
Interest Period. With respect to each Revolving Credit Loan, (a)
initially, the period commencing on the Drawdown Date of such Revolving Credit
Loan and ending on the last day of one of the periods set forth below, as
selected by the Borrower in a Loan Request or as otherwise required by the terms
of this Credit Agreement (i) for any
Base Rate Loan, the last day of the calendar quarter; and (ii) for any LIBOR
Rate Loan, 1, 2, 3 or 6 months; and (b) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to such Revolving
Credit Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(A) if any Interest Period with respect to a LIBOR Rate Loan
would otherwise end on a day that is not a LIBOR Business Day, that
Interest Period shall be extended to the next succeeding LIBOR 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 LIBOR Business Day;
(B) if any Interest Period with respect to a Base Rate Loan
would end on a day that is not a Business Day, that Interest Period
shall end on the next succeeding Business Day;
(C) if the Borrower shall fail to give notice as provided in
Section 2.7, the Borrower shall be deemed to have requested a
conversion of the affected LIBOR Rate Loan to a Base Rate Loan and the
continuance of all Base Rate Loans as Base Rate Loans on the last
day of the then current Interest Period with respect thereto;
(D) any Interest Period relating to any LIBOR Rate Loan that
begins on the last LIBOR 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 LIBOR
Business Day of a calendar month; and
(E) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date.
International Standby Practices. With respect to any standby Letter of
Credit, International Standby Practices (ISP98), International Chamber of
Commerce Publication No. 590, or any successor code of standby letter of credit
practices among banks adopted by the Bank in the ordinary course of its business
as a standby letter of credit issuer and in effect at the time of issuance of
such Letter of Credit.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) by any Person (i) for the acquisition of stock or
Indebtedness of any other Person, (ii) for loans, advances, capital
contributions or transfers of property to any other Person, but excluding any
such loan or advance arising in connection with the sale of inventory or
supplies or the provision of services by such Person in the ordinary course of
business, or (iii) in respect of any guaranties (or other commitments as
described under clause (k) of the definition of "Indebtedness") of the
obligations of any Person, but excluding endorsements of instruments for deposit
or collection in the
ordinary course of business. In determining the aggregate amount of Investments
outstanding at any particular time: (a) the amount of any Investment represented
by a guaranty shall, subject to any limitations on the guarantor's liability
expressly set forth in such guaranty, be taken at an amount equal to the
principal amount of the obligations guaranteed and still outstanding; (b) there
shall be deducted in respect of each such Investment any amount received as a
return of capital (but only by repurchase, redemption, retirement, repayment,
liquidating dividend or liquidating distribution); (c) there shall not be
deducted in respect of any Investment nor shall there be added to any Investment
any amounts received as earnings on such Investment, whether as dividends,
interest or otherwise; and (d) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof and there shall not be
added to the aggregate amount of Investments any increase in the value thereof.
For the avoidance of doubt, Capital Expenditures made by the Borrower or any
Subsidiary shall not be considered an Investment for purposes of this Credit
Agreement.
Investment Policy. The investment policy of the Borrower and its
Subsidiaries in effect as of the date hereof as set forth on Exhibit D hereto.
Japanese Joint Venture. Ulvac Cryogenics, Inc., a joint venture
between the Borrower and Ulvac Corporation of Chigasaki, Japan.
Joint Venture. A corporation, partnership, limited liability company,
joint venture or other similar legal arrangement (whether created by contract or
conducted through a separate legal entity) now or hereafter formed by the
Borrower or any of its Subsidiaries with another Person (other than the Borrower
or a Subsidiary of the Borrower) in order to conduct a common enterprise with
such Person. In no event will any Subsidiary of the Borrower be deemed to be a
Joint Venture for purposes of this Credit Agreement.
Letter of Credit. See Section 4.1.1.
Letter of Credit Application. See Section 4.1.1.
Letter of Credit Fee. See Section 4.6.
Letter of Credit Fee Rate. The applicable rate per annum set forth in
the chart contained in the definition of "Applicable Margin" under the heading
"Letter of Credit Fees".
Leverage Ratio. As of any date of determination, the ratio of (a)
Consolidated Total Liabilities of the Borrower and its Subsidiaries outstanding
on such date to (b) Consolidated Tangible Net Worth of the Borrower and its
Subsidiaries as of such date.
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Bank in its sole
discretion acting in good faith.
LIBOR Lending Office. Initially, the office of the Bank designated as
such by notice to the Borrower; thereafter, such other office of the Bank, if
any, that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate Loan,
the rate of interest equal to (i) the rate determined by the Bank at which
Dollar deposits for such Interest Period are offered based on information
presented on Telerate Page 3750 as of 11:00 a.m. London time on the second LIBOR
Business Day prior to the first day of such Interest Period, divided by (ii) a
number equal to 1.00 minus the Eurocurrency Reserve Rate, if applicable.
LIBOR Rate Loans. Revolving Credit Loans bearing interest calculated by
reference to the LIBOR Rate.
Loan Documents. This Credit Agreement, the Revolving Credit Note,
the Letter of Credit Applications and the Letters of Credit.
Loan Request. See Section 2.6.
Material Adverse Effect. A material adverse effect on (a) the business,
properties, condition (financial or otherwise), assets, operations or income of
the Borrower and the Guarantors, taken as a whole, (b) the ability of the
Borrower and the Guarantors taken as a whole, to perform any of their respective
Obligations under the Loan Documents or (c) the validity, binding effect or
enforceability of this Credit Agreement or any of the other Loan Documents.
Maturity Date. July 18, 2003[April __, 2003].
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Multiemployer Plan. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
Net Cash Sale Proceeds. The net cash proceeds received by a Person in
respect of any Asset Sale, less the sum of (a) all reasonable out-of-pocket
fees, commissions and other reasonable and customary expenses actually incurred
in connection with such Asset Sale, including the amount of income, franchise,
sales and other applicable taxes required to be paid by such Person in
connection with such Asset Sale, and (b) the aggregate amount of cash so
received by such Person which is required to be used to retire or repay (in
whole or in part) any Indebtedness (other than under the Loan Documents) of such
Person permitted by this Credit Agreement that was secured by a lien or security
interest permitted by this Credit Agreement with respect to such assets
transferred and which is required to be repaid in whole or in part in connection
with such Asset Sale.
Obligations. All indebtedness, obligations and liabilities of any of
the Borrower and its Subsidiaries to the Bank, individually or collectively,
existing on the date of this Credit Agreement or arising thereafter, direct or
indirect, joint or several, absolute or contingent, matured or unmatured,
liquidated or unliquidated, secured or unsecured, arising by contract, operation
of law or otherwise, in each case, arising or incurred under this Credit
Agreement or any of the other Loan Documents or in respect of any of the Loans
made or Reimbursement Obligations incurred or the Revolving Credit Note, Letter
of Credit Application, Letter of Credit or other instruments at any time
evidencing any thereof.
Outstanding. With respect to the Revolving Credit Loans, the
aggregate unpaid principal thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by Section
4002 of ERISA and any successor entity or entities having similar
responsibilities.
Permitted Acquisition. See Section 8.5.1.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 8.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Principal Officers. The Chief Executive Officer of the Borrower and/or
the Chief Financial Officer of the Borrower, and, to the extent at any time both
such positions are vacant, then all the officers of the Borrower.
RCRA. See Section 6.17(a).
Real Estate. All real property at any time owned or leased (as
lessee or sublessee) by the Borrower or any of its Subsidiaries.
Record. The grid attached to a Revolving Credit Note, or the
continuation of such grid, or any other similar record, including computer
records, maintained by the Bank with respect to any Revolving Credit Loan
referred to in such Revolving Credit Note.
Reimbursement Obligation. The Borrower's obligation to reimburse the
Bank on account of any drawing under any Letter of Credit as provided in Section
4.2.
Restricted Payment. In relation to the Borrower and its Subsidiaries,
any (a) Distribution, or (b) payment or prepayment by the Borrower or its
Subsidiaries to the Borrower's or any Subsidiary's shareholders (or other equity
holders) exceeding, in the aggregate, $250,000 and (i) consisting of management,
consulting or similar fees other than those fees incurred in the ordinary course
of business consistent with past practices
and fees charged for a fair exchange of services or sale or other disposition of
goods in the ordinary course of business for fair and reasonable value, (ii)
consisting of any fees or other payments made outside the ordinary course of
business or (iii) made to such Person in its capacity as shareholder other than
for a fair exchange of services or sale or other disposition of goods in the
ordinary course of business for fair and reasonable value or (c) payment or
prepayment by the Borrower or its Subsidiaries to any Affiliate of the Borrower
or any Subsidiary, excluding payments made by the Borrower or a Subsidiary of
the Borrower to a Foreign Subsidiary or by a Foreign Subsidiary to the Borrower
or a Subsidiary which is not otherwise prohibited by this Credit Agreement and
made as a result of the Borrower's or such Subsidiary's ordinary course dealings
with Foreign Subsidiaries conducted in a manner consistent with past practices
(or, with respect to Foreign Subsidiaries created or acquired after the Closing
Date, consistent with the Borrower's foreign operations as of the Closing Date).
Revolving Credit Loans. Revolving credit loans made or to be made by
the Bank to the Borrower pursuant to Section 2.
Revolving Credit Note Record. A Record with respect to a Revolving
Credit Note.
Revolving Credit Note. See Section 2.4.
SARA. See Section 6.17(a).
Section 20 Subsidiary. A Subsidiary of the bank holding company
controlling the Bank, which Subsidiary has been granted authority by the Federal
Reserve Board to underwrite and deal in certain Ineligible Securities.
S&P. Standard & Poor's Ratings Group.
Stock Option Plans. Collectively, the Borrower's Employee Stock Option
Plan dated as of April 24, 1996, and the Borrower's 1996 Stock Option Plan for
Non-Employee Directors dated as of April 24, 1996, each in the form delivered to
the Bank on or prior to the Closing Date and as amended from time to time.
Subsidiary. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes) of the outstanding Voting Stock.
Synthetic Lease. As defined in clause (f) of the definition of
"Indebtedness".
Temporary Lien. See Section 8.2(xi).
Type. As to any Revolving Credit Loan, its nature as a Base Rate Loan
or a LIBOR Rate Loan.
Uniform Customs. With respect to any Letter of Credit, the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of
Commerce Publication No. 500 or any successor version thereto adopted by the
Bank in the ordinary course of its business as a letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for
which the Borrower does not reimburse the Bank on the date specified in, and in
accordance with, Section 4.2.
Voting Stock. Stock or similar interests, of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from
time to time in accordance with its terms and the terms of this Credit
Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles
applied on a consistent basis by the accounting entity to which they
refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts, have
the meanings assigned to them therein, with the term "instrument" being
that defined under Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "Section" refers to that section
of this Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Credit Agreement as a whole and not to
any particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation
of periods of time from a specified date to a later specified date, the
word "from" means "from and including," the words "to" and "until" each
mean "to but excluding," and the word "through" means "to and
including."
(k) This Credit Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the
same or similar matters. All such limitations, tests and measurements
are, however, cumulative and are to be performed in accordance with the
terms thereof.
(l) This Credit Agreement and the other Loan Documents are the
result of negotiation among, and have been reviewed by counsel to,
among others, the Bank and the Borrower and are the product of
discussions and negotiations among all parties. Accordingly, this
Credit Agreement and the other Loan Documents are not intended to be
construed against the Bank merely on account of the Bank's involvement
in the preparation of such documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. Commitment to Lend.
Subject to the terms and conditions set forth in this Credit Agreement,
the Bank severally agrees to lend to the Borrower and the Borrower may borrow,
repay, and reborrow from time to time from the Closing Date up to but not
including the Maturity Date upon notice by the Borrower to the Bank given in
accordance with Section 2.6, such sums as are requested by the Borrower up to a
maximum aggregate amount outstanding (after giving effect to all amounts
requested) at any one time equal to the Commitment minus the sum of the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations. Each request for a
Revolving Credit Loan hereunder shall constitute a representation and warranty
by the Borrower that the conditions set forth in Section 10 and Section 11, in
the case of the initial Revolving Credit Loans to be made on the Closing Date,
and Section 11, in the case of all other Revolving Credit Loans, have been
satisfied on the date of such request.
2.2. Commitment Fee.
The Borrower agrees to pay to the Bank a commitment fee calculated at
the rate of the Commitment Fee Rate per annum on the average daily amount during
each calendar quarter or portion thereof from the date hereof to the Maturity
Date by which the Commitment minus the sum of the Maximum Drawing Amount and all
Unpaid Reimbursement Obligations exceeds the outstanding amount of Revolving
Credit Loans during such calendar quarter. The commitment fee shall be payable
quarterly in arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter commencing on the first such date
following the date hereof, with a final payment on the Maturity Date or any
earlier date on which the Commitment shall terminate.
2.3. Reduction of Total Commitment.
The Borrower shall have the right at any time and from time to time
upon five (5) Business Days prior written notice to the Bank to reduce by
$500,000 or an integral multiple thereof or terminate entirely the Commitment.
Upon the effective date of any such reduction or termination, the
Borrower shall pay to the Bank the full amount of any commitment fee then
accrued on the amount of the reduction. No reduction or termination of the
Commitment may be reinstated.
2.4. The Revolving Credit Notes.
The Revolving Credit Loans shall be evidenced by a promissory note of
the Borrower in substantially the form of Exhibit A hereto (the "Revolving
Credit Note"), dated as of the Closing Date and completed with appropriate
insertions. The Revolving Credit Note shall be payable to the order of the Bank
in a principal amount equal to the Bank's Commitment or, if less, the
outstanding amount of all Revolving Credit Loans made by the Bank, plus interest
accrued thereon, as set forth below. The Borrower irrevocably authorizes the
Bank to make or cause to be made, at or about the time of the Drawdown Date of
any Revolving Credit Loan or at the time of receipt of any payment of principal
on the Bank's Revolving Credit Note, an appropriate notation on the Bank's
Revolving Credit Note Record reflecting the making of such Revolving Credit Loan
or (as the case may be) the receipt of such payment. The outstanding amount of
the Revolving Credit Loans set forth on the Bank's Revolving Credit Note Record
shall be prima facie evidence of the principal amount thereof owing and unpaid
to the Bank, but the failure to record, or any error in so recording, any such
amount on the Bank's Revolving Credit Note Record shall not limit or otherwise
affect the obligations of the Borrower hereunder or under the Revolving Credit
Note to make payments of principal of or interest on the Revolving Credit Note
when due.
2.5. Interest on Revolving Credit Loans.
Except as otherwise provided in Section 5.10,
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per annum equal to
the Base Rate plus the Applicable Margin.
(b) Each LIBOR Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per annum equal to
the LIBOR Rate determined for such Interest Period plus the Applicable
Margin.
(c) The Borrower promises to pay interest on each Revolving
Credit Loan in arrears on each Interest Payment Date with respect
thereto.
2.6. Requests for Revolving Credit Loans.
The Borrower shall give to the Bank written notice in the form of
Exhibit B hereto (or telephonic notice confirmed in a writing in the form of
Exhibit B hereto) of each Revolving Credit Loan requested hereunder (a "Loan
Request") no later than (a) 12:00 noon (Boston time) on the proposed Drawdown
Date of any Base Rate Loan and (b) three (3) LIBOR Business Days prior to the
proposed Drawdown Date of any LIBOR Rate Loan. Each such notice shall specify
(i) the principal amount of the Revolving Credit Loan requested, (ii) the
proposed Drawdown Date of such Revolving Credit Loan, (ii) the Interest Period
for such Revolving Credit Loan and (iv) the Type of such Revolving Credit Loan
and shall be signed by both the President and Chief Financial Officer of the
Borrower. Each Loan
Request shall be irrevocable and binding on the Borrower and shall obligate the
Borrower to accept the Revolving Credit Loan requested from the Bank on the
proposed Drawdown Date. Each Loan Request shall be in a minimum aggregate amount
of $100,000 or an integral multiple thereof.
2.7. Conversion Options.
2.7.1. Conversion to Different Type of Revolving Credit Loan.
The Borrower may elect from time to time to convert any
outstanding Revolving Credit Loan to a Revolving Credit Loan of another
Type, provided that (a) with respect to any such conversion of a
Revolving Credit Loan to a Base Rate Loan, the Borrower shall give the
Bank at least one (1) Business Day prior written notice of such
election; (b) with respect to any such conversion of a Base Rate Loan
to a LIBOR Rate Loan, the Borrower shall give the Bank at least three
(3) LIBOR Business Days prior written notice of such election; (c) with
respect to any such conversion of a LIBOR Rate Loan into a Revolving
Credit Loan of another Type, such conversion shall only be made on the
last day of the Interest Period with respect thereto and (d) no
Revolving Credit Loan may be converted into a LIBOR Rate Loan when any
Default or Event of Default has occurred and is continuing. On the date
on which such conversion is being made the Bank shall take such action
as is necessary to transfer such Revolving Credit Loans to its Domestic
Lending Office or its LIBOR Lending Office, as the case may be. All or
any part of outstanding Revolving Credit Loans of any Type may be
converted into a Revolving Credit Loan of another Type as provided
herein, provided that any partial conversion shall be in an aggregate
principal amount of $1,000,000 or a whole multiple thereof. Each
Conversion Request relating to the conversion of a Revolving Credit
Loan to a LIBOR Rate Loan shall be irrevocable by the Borrower.
2.7.2. Continuation of Type of Revolving Credit Loan.
Any Revolving Credit Loan of any Type may be continued as a
Revolving Credit Loan of the same Type upon the expiration of an
Interest Period with respect thereto by compliance by the Borrower with
the notice provisions contained in Section 2.7.1; provided that no
LIBOR Rate Loan may be continued as such when any Default or Event of
Default has occurred and is continuing, but shall be automatically
converted to a Base Rate Loan on the last day of the first Interest
Period relating thereto ending during the continuance of any Default or
Event of Default of which officers of the Bank active upon the
Borrower's account have actual knowledge. In the event that the
Borrower fails to provide any such notice with respect to the
continuation of any LIBOR Rate Loan as such, then such LIBOR Rate Loan
shall be automatically converted to a Base Rate Loan on the last day
of the first Interest Period relating thereto during which the Borrower
has failed to give such notice.
2.7.3. LIBOR Rate Loans.
Any conversion to or from LIBOR Rate Loans shall be in such
amounts and be made pursuant to such elections so that, after giving
effect thereto, the aggregate principal amount of all LIBOR Rate Loans
having the same Interest Period shall not be less than $1,000,000 or a
whole multiple of $500,000. In no event shall the Borrower have more
than five (5) LIBOR Rate Loans outstanding at any one time.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. Maturity.
The Borrower promises to pay on the Maturity Date, and there shall
become absolutely due and payable on the Maturity Date, all of the Revolving
Credit Loans outstanding on such date, together with any and all accrued and
unpaid interest thereon.
3.2. Mandatory Repayments of Revolving Credit Loans.
3.2.1. Revolving Credit Loans Exceed Commitment.
If at any time the sum of the outstanding amount of the
Revolving Credit Loans, the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the Commitment then the Borrower
shall immediately pay the amount of such excess to the Bank for
application: first, to any Unpaid Reimbursement Obligations; second, to
the Revolving Credit Loans; and third, to provide to the Bank cash
collateral for Reimbursement Obligations as contemplated by Section
4.2(b) and (c).
3.2.2. Asset Sales.
No later than two (2) Business Days after the receipt by the
Borrower or any of its Subsidiaries of Net Cash Sale Proceeds from
Asset Sales, the Borrower shall pay to the Bank an amount equal to one
hundred percent (100%) of such Net Cash Sale Proceeds, to be applied to
reduce the outstanding amount of the Revolving Credit Loans and to
permanently reduce the Commitment by such amount; provided that the
Borrower may in its sole discretion elect, pursuant to a written notice
given by the Borrower to the Bank describing such election, to postpone
any mandatory prepayment otherwise required to be made by the Borrower
pursuant to this Section 3.2.2 (any such prepayments, until the
time actually made, being "Postponed Payments") until such time as the
aggregate amount of Postponed Payments equals $100,000.
3.3. Optional Repayments of Revolving Credit Loans.
The Borrower shall have the right, at its election, to repay the
outstanding amount of the Revolving Credit Loans, as a whole or in part, at any
time without penalty or premium, except for any amounts payable by the Borrower
under Section 5.9 in respect of any payment of a LIBOR Rate Loan on any day
other than the last day of the applicable Interest Period. The Borrower shall
give the Bank, no later than 12:00 noon, Boston time, at least one (1) Business
Day prior written notice of any proposed prepayment pursuant to this Section 3.3
of Base Rate Loans, and three (3) LIBOR Business Days notice of any proposed
prepayment pursuant to this Section 3.3 of LIBOR Rate Loans, in each case
specifying the proposed date of prepayment of Revolving Credit Loans and the
principal amount to be prepaid. Each such partial prepayment of the Revolving
Credit Loans shall be in an integral multiple of $100,000, shall be accompanied
by the payment of accrued interest on the principal prepaid to the
date of prepayment and shall be applied, in the absence of instruction by the
Borrower, first to the principal of Base Rate Loans and then to the principal of
LIBOR Rate Loans.
4. LETTERS OF CREDIT.
4.1. Letter of Credit Commitments.
4.1.1. Commitment to Issue Letters of Credit.
Subject to the terms and conditions hereof and the execution
and delivery by the Borrower of a letter of credit application on the
Bank's customary form (a "Letter of Credit Application"), the Bank in
reliance upon the representations and warranties of the Borrower
contained herein, agrees to issue, extend and renew for the account of
the Borrower or any Subsidiary thereof one or more standby or
documentary letters of credit (individually, a "Letter of Credit"), in
such form as may be requested from time to time by the Borrower or any
Subsidiary thereof and agreed to by the Bank; provided, however, that,
after giving effect to such request, (a) the sum of the aggregate
Maximum Drawing Amount and all Unpaid Reimbursement Obligations shall
not exceed $10,000,000 at any one time and (b) the sum of (i) the
Maximum Drawing Amount on all Letters of Credit, (ii) all Unpaid
Reimbursement Obligations, and (iii) the amount of all Revolving Credit
Loans outstanding shall not exceed the Commitment.
4.1.2. Letter of Credit Applications.
Each Letter of Credit Application shall be completed to the
satisfaction of the Bank. In the event that any provision of any Letter
of Credit Application shall be inconsistent with any provision of this
Credit Agreement, then the provisions of this Credit Agreement shall,
to the extent of any such inconsistency, govern.
4.1.3. Terms of Letters of Credit.
Each Letter of Credit issued, extended or renewed hereunder
shall, among other things, (a) provide for the payment of sight drafts
for honor thereunder when presented in accordance with the terms
thereof and when accompanied by the documents described therein, and
(b) have an expiry date no later than the earlier of (i) one (1) year
from the date of issuance of such Letter of Credit and (ii) the date
which is seven (7) days (or, if the Letter of Credit is confirmed by a
confirmer or otherwise provides for one or more nominated persons,
thirty (30) days) prior to the Maturity Date. Each Letter of Credit so
issued, extended or renewed shall be subject to the Uniform Customs or,
in the case of a standby Letter of Credit, either the Uniform Customs
or the International Standby Practices.
4.2. Reimbursement Obligation of the Borrower.
In order to induce the Bank to issue, extend and renew each Letter of
Credit, the Borrower hereby agrees to reimburse or pay to the Bank with respect
to each Letter of Credit issued, extended or renewed by the Bank hereunder,
(a) except as otherwise expressly provided in Section 4.2(b)
and (c) and Section 4.7, on each date that any draft presented under
such Letter of Credit is honored by
the Bank, or the Bank otherwise makes a payment with respect thereto,
(i) the amount paid by the Bank under or with respect to such Letter
of Credit, and (ii) the amount of any taxes (other than taxes on
the net income of the Bank or any of its Affiliates), fees,
charges or other costs and expenses whatsoever incurred by the Bank
in connection with any payment made by the Bank under, or with
respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Commitment
to an amount less than the Maximum Drawing Amount, an amount equal to
such difference, which amount shall be held by the Bank as cash
collateral for all Reimbursement Obligations, and
(c) upon the termination of the Commitment, or the
acceleration of the Reimbursement Obligations with respect to all
Letters of Credit in accordance with Section 12, an amount equal to the
then Maximum Drawing Amount on all Letters of Credit, which amount
shall be held by the Bank as cash collateral for all Reimbursement
Obligations.
Each such payment shall be made to the Bank at the Bank's Office in immediately
available funds. Interest on any and all amounts remaining unpaid by the
Borrower under this Section 4.2 at any time from the date such amounts become
due and payable (whether as stated in this Section 4.2, by acceleration or
otherwise) until payment in full (whether before or after judgment) shall be
payable to the Bank on demand at the rate specified in Section 5.10 for overdue
principal on the Revolving Credit Loans.
4.3. Letter of Credit Payments.
If any draft shall be presented or other demand for payment shall be
made under any Letter of Credit, the Bank shall notify the Borrower of the date
and amount of the draft presented or demand for payment and of the date and time
when it expects to pay such draft or honor such demand for payment. The
responsibility of the Bank to the Borrower shall be only to determine that the
documents (including each draft) delivered under each Letter of Credit in
connection with such presentment shall be in conformity in all material respects
with such Letter of Credit.
4.4. Obligations Absolute.
The Borrower's obligations under this Section 4 shall be absolute and
unconditional under any and all circumstances and irrespective of the occurrence
of any Default or Event of Default or any condition precedent whatsoever or any
setoff, counterclaim or defense to payment which the Borrower may have or have
had against the Bank or any beneficiary of a Letter of Credit. The Borrower
further agrees with the Bank that the Bank shall not be responsible for, and the
Borrower's Reimbursement Obligations under Section 4.2 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, fraudulent or forged, or any dispute between or among
the Borrower, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrower against the beneficiary of any
Letter of Credit or any such transferee. The Bank 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.
The Borrower agrees that any action taken or omitted by the Bank under or in
connection with each Letter of Credit and the related drafts and documents, if
done in good faith and in the absence of gross negligence and willful
misconduct, shall be binding upon the Borrower and shall not result in any
liability on the part of the Bank to the Borrower. Notwithstanding anything to
the contrary contained in this Section 4.4, the Borrower shall retain any and
all rights it may have against the Bank for any liability incurred by the
Borrower arising out of the gross negligence or willful misconduct of the Bank
in respect of any Letter of Credit or any payment made or not made by the Bank
thereunder.
4.5. Reliance by Issuer.
To the extent not inconsistent with Section 4.4, the Bank shall be
entitled to rely, and shall be fully protected in relying upon, any Letter of
Credit, draft, writing, resolution, notice, consent, certificate, affidavit,
letter, cablegram, telegram, telecopy, telex or teletype message, statement,
order or other document 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, independent accountants and other experts selected
by the Bank.
4.6. Letter of Credit Fee.
The Borrower shall, on the date of issuance or any extension or renewal
of any Letter of Credit pay a fee (in each case, a "Letter of Credit Fee") to
the Bank in respect of each Letter of Credit in an amount equal to the Letter of
Credit Fee Rate per annum of the face amount of such Letter of Credit. In
respect of each Letter of Credit, the Borrower shall also pay to the Bank at
such other time or times as such charges are customarily made by the Bank, the
Bank's reasonable and customary issuance, amendment, negotiation or document
examination and other administrative fees as in effect from time to time.
4.7. Reimbursements Funded by Revolving Credit Loans.
In the event that the Borrower fails to reimburse the Bank for any
drawing presented under a Letter of Credit and honored by the Bank by the time
required under Section 4.2, the Borrower shall be deemed to have given to the
Bank a timely Loan Request for a Base Rate Loan in accordance with Section 2.6
and, subject to the satisfaction of the conditions specified in Section 11, the
Bank shall make such a Revolving Credit Loan in the amount of such drawing
honored by the Bank under such Letter of Credit and shall apply the proceeds of
such Revolving Credit Loan directly to reimburse itself for the amount thereof.
5. CERTAIN GENERAL PROVISIONS.
5.1. Closing Fee.
The Borrower agrees to pay to the Bank on the Closing Date a closing
fee in the amount of $50,000.00.
5.2. Funds for Payments.
5.2.1. Payments to Bank.
All payments of principal, interest, Reimbursement
Obligations, commitment fees, Letter of Credit Fees and any other
amounts due hereunder or under any of the other Loan Documents shall
be made on the due date thereof to the Bank in Dollars at the Bank's
Office or at such other place that the Bank may from time to time
designate, in each case at or about 11:00 a.m. (Boston, Massachusetts,
time or other local time at the place of payment) and in immediately
available funds.
5.2.2. No Offset, etc.
All payments by the Borrower hereunder and under any of the
other Loan Documents shall be made without recoupment, setoff or
counterclaim and free and clear of and without deduction for any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless the
Borrower is compelled by law to make such deduction or withholding. If
any such obligation is imposed upon the Borrower with respect to any
amount payable by it hereunder or under any of the other Loan
Documents, the Borrower will pay to the Bank on the date on which such
amount is due and payable hereunder or under such other Loan Document,
such additional amount in Dollars as shall be necessary to enable the
Bank to receive the same net amount which the Bank would have received
on such due date had no such obligation been imposed upon the Borrower.
The Borrower will deliver promptly to the Bank certificates or other
valid vouchers for all taxes or other charges deducted from or paid
with respect to payments made by the Borrower hereunder or under such
other Loan Document.
5.3. Computations.
All computations of interest on Base Rate Loans shall be based on a
365-day year and paid for the actual number of days elapsed. All computations of
interest on LIBOR Rate Loans, and of commitment fees or Letter of Credit Fees
shall be based on a 360-day year and paid for the actual number of days elapsed.
Except as otherwise provided in the definition of the term "Interest Period"
with respect to LIBOR Rate Loans, whenever a payment hereunder or under any of
the other Loan Documents becomes due on a day that is not a Business Day, the
due date for such payment shall be extended to the next succeeding Business Day,
and interest shall accrue during such extension. The outstanding amount of the
Revolving Credit Loans as reflected on the Revolving Credit Note Record from
time to time shall be considered correct and binding on the Borrower unless
within five (5) Business Days after receipt of any notice by the Bank of such
outstanding amount, the Bank shall notify the Borrower to the contrary.
5.4. Inability to Determine LIBOR Rate.
In the event, prior to the commencement of any Interest Period relating
to any LIBOR Rate Loan, the Bank shall determine that adequate and reasonable
methods do not exist for ascertaining the LIBOR Rate that would otherwise
determine the rate of interest to be applicable to any LIBOR Rate Loan during
any Interest Period, the Bank shall forthwith give notice of such determination
(which shall be conclusive and binding on the Borrower) to the Borrower. In such
event (a) any Loan Request or Conversion Request with respect to LIBOR Rate
Loans shall be automatically withdrawn and shall be deemed a request for Base
Rate Loans, (b) each LIBOR Rate Loan will automatically, on the last day of the
then current Interest Period relating thereto, become a Base Rate Loan, and (c)
the obligations of the Bank to make LIBOR Rate Loans shall be suspended until
the Bank determines that the circumstances giving rise to such suspension no
longer exist, whereupon the Bank shall so notify the Borrower.
5.5. Illegality.
Notwithstanding any other provisions herein, if the adoption of any
future law, regulation, treaty or directive or any change in the interpretation
or application of any present or future law, regulation, treaty or directive
shall make it unlawful for the Bank to make or maintain LIBOR Rate Loans, the
Bank shall forthwith give notice of such circumstances to the Borrower and
thereupon (a) the commitment of the Bank to make LIBOR Rate Loans or convert
Revolving Credit Loans of another Type to LIBOR Rate Loans shall forthwith be
suspended and (b) the Bank's Revolving Credit Loans then outstanding as LIBOR
Rate Loans, if any, shall be converted automatically to Base Rate Loans on the
last day of each Interest Period applicable to such LIBOR Rate Loans or within
such earlier period as may be required by law. The Borrower hereby agrees
promptly to pay the Bank, upon demand by the Bank, any additional amounts
payable by the Borrower under Section 5.9 in respect of any costs incurred by
the Bank in making any conversion in accordance with this Section 5.5, including
any interest or fees payable by the Bank to lenders of funds obtained by it in
order to make or maintain its LIBOR Rate Loans hereunder.
5.6. Additional Costs, etc.
If any change in any present, or the adoption of any future, applicable
law, which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to the Bank by any central bank or other fiscal, monetary or
other authority (whether or not having the force of law), shall:
(a) subject the Bank to any tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature with respect to this Credit
Agreement, the other Loan Documents, any Letters of Credit, the Bank's
Commitment or the Revolving Credit Loans (other than taxes based upon
or measured by the income or profits of the Bank), or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to the Bank of the
principal of or the interest on any Revolving Credit Loans or any other
amounts payable to the Bank under this Credit Agreement or any of the
other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement)
any special deposit, reserve, assessment, liquidity, capital adequacy
or other similar requirements (whether or not having the force of law)
against assets held by, or deposits in or for the account of, or loans
by, or letters of credit issued by, or commitments of an office of any
Bank, or
(d) impose on the Bank any other conditions or requirements
with respect to this Credit Agreement, the other Loan Documents, any
Letters of Credit, the Revolving Credit Loans, the Bank's Commitment,
or any class of loans, letters of credit or commitments of which any of
the Revolving Credit Loans or the Bank's Commitment forms a part, and
the result of any of the foregoing is
(i) to increase the cost to any Bank of making,
funding, issuing, renewing, extending or maintaining any of
the Revolving Credit Loans or the Bank's Commitment or any
Letter of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to the Bank
hereunder on account of the Bank's Commitment, any Letter of
Credit or any of the Revolving Credit Loans, or
(iii) to require the Bank to make any payment or to
forego any interest or Reimbursement Obligation or other sum
payable hereunder, the amount of which payment or foregone
interest or Reimbursement Obligation or other sum is
calculated by reference to the gross amount of any sum
receivable or deemed received by the Bank from the Borrower
hereunder,
then, and in each such case, the Borrower will within ten (10) days after the
Borrower's receipt of the certificate contemplated by Section 5.8 below (it
being understood that such a certificate may be delivered at any time and from
time to time and as often as the occasion therefor may arise under this Section
5.6), pay to the Bank such additional amounts as will be sufficient to
compensate the Bank for such additional cost, reduction, payment or foregone
interest or Reimbursement Obligation or other sum; provided, however, that the
Borrower shall not be required to compensate the Bank pursuant to this Section
5.6 for any such additional cost, reduction, payment or foregone interest or
Reimbursement Obligation or other sum incurred more than six months prior to the
date the Bank notifies the Borrower of the event giving rise to the Bank's claim
for compensation under this Section 5.6.
5.7. Capital Adequacy.
If after the date hereof the Bank reasonably determines that (a) the
adoption of or change in any law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) regarding
capital requirements for banks or bank holding companies or any change in the
interpretation or application thereof by a court or governmental authority with
appropriate jurisdiction, or (b) compliance by the Bank or any corporation
controlling the Bank with any law, governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law) of any such
entity regarding capital adequacy, has the effect of reducing the return on the
Bank's commitment with respect to any Revolving Credit Loans to a level below
that which the Bank could have achieved but for such adoption, change or
compliance (taking into consideration the Bank's then existing policies with
respect to capital adequacy and assuming full utilization of such entity's
capital) by any
amount deemed by the Bank to be material, then the Bank may notify the Borrower
of such fact. To the extent that the amount of such reduction in the return on
capital is not reflected in the Base Rate, the Borrower agrees to pay the Bank
the amount of such reduction in the return on capital as and when such reduction
is determined within ten (10) days after presentation by the Bank of a
certificate in accordance with Section 5.8 hereof provided, however, that the
Borrower shall not be required to compensate the Bank pursuant to this Section
5.7 for any reduction incurred more than six months prior to the date the Bank
notifies the Borrower of the event giving rise to the Bank's claim for
compensation under this Section 5.7. The Bank shall allocate such cost increases
among its customers in good faith and on an equitable basis.
5.8. Certificate.
A certificate setting forth any additional amounts payable pursuant to
Sections 5.6 or 5.7 and a brief explanation of such amounts which are due, shall
be submitted by the Bank to the Borrower and, when submitted by the Bank to the
Borrower, shall be conclusive, absent manifest error, that such amounts are due
and owing so long as it reflects a reasonable basis for the calculation of the
amounts set forth therein and does not contain any manifest error.
5.9. Indemnity.
The Borrower agrees to indemnify the Bank and to hold the Bank harmless
from and against any loss, cost or expense that the Bank may sustain or incur as
a consequence of (a) default by the Borrower in payment of the principal amount
of or any interest on any LIBOR Rate Loans as and when due and payable,
including any such loss or expense arising from interest or fees payable by the
Bank to lenders of funds obtained by it in order to maintain its LIBOR Rate
Loans, (b) default by the Borrower in making a borrowing of or conversion to a
LIBOR Rate Loan after the Borrower has given (or is deemed to have given) a Loan
Request or a Conversion Request relating thereto in accordance with Section 2.6
or Section 2.7 or (c) the making of any payment of a LIBOR Rate Loan or the
making of any conversion of any such LIBOR Rate Loan to a Base Rate Loan on a
day that is not the last day of the applicable Interest Period with respect
thereto, including interest or fees payable by the Bank to lenders of funds
obtained by it in order to maintain any such Revolving Credit Loans.
5.10. Interest After Default.
5.10.1. Overdue Amounts.
Overdue principal and (to the extent permitted by applicable
law) interest on the Revolving Credit Loans and all other overdue
amounts payable hereunder or under any of the other Loan Documents
shall bear interest at a rate per annum equal to two percent (2%) above
the Base Rate until such amount shall be paid in full (after as well as
before judgment) and shall be payable on demand.
5.10.2. Amounts Not Overdue.
During the continuance of an Event of Default the principal of
the Revolving Credit Loans not overdue shall, until such Event of
Default has been cured or remedied or such Event of Default has been
waived by the Bank pursuant to Section 24, bear interest at a rate per
annum equal to the greater of (a) two percent (2%) above the rate of
interest otherwise applicable
to such Revolving Credit Loans pursuant to Section 2.5and (b) the rate
of interest applicable to overdue principal pursuant to Section 5.10.1.
6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Bank as follows:
6.1. Corporate Authority.
6.1.1. Incorporation; Good Standing.
Each of the Borrower and its Subsidiaries (a) is a corporation
duly organized, validly existing and in good standing under the laws of
its state of incorporation, (b) has all requisite corporate power to
own its property and conduct its business as now conducted and as
presently contemplated, and (c) except as set forth on Schedule 6.1.1,
is in good standing as a foreign corporation and is duly authorized to
do business in each jurisdiction where such qualification is necessary
except where a failure to be so qualified or authorized would not have
a Material Adverse Effect.
6.1.2. Authorization.
The execution, delivery and performance of this Credit
Agreement and the other Loan Documents to which the Borrower or any of
its Subsidiaries is or is to become a party and the transactions
contemplated hereby and thereby (a) are within the corporate authority
of such Person, (b) have been duly authorized by all necessary
corporate proceedings, (c) do not conflict with or result in any breach
or contravention of any provision of law, statute, rule or regulation
to which the Borrower or any of its Subsidiaries is subject or any
judgment, order, writ, injunction, license or permit applicable to the
Borrower or any of its Subsidiaries, except for any conflict, breach or
contravention which could not reasonably be expected to have a Material
Adverse Effect, (d) do not conflict with any provision of the corporate
charter or bylaws of the Borrower or any of its Subsidiaries and (e) do
not conflict with any provision of any agreement or other instrument
binding upon, the Borrower or any of its Subsidiaries, except for any
conflict which could not reasonably be expected to have a Material
Adverse Effect.
6.1.3. Enforceability.
The execution and delivery of this Credit Agreement and the
other Loan Documents to which the Borrower or any of its Subsidiaries
is or is to become a party will result in valid and legally binding
obligations of such Person enforceable against it in accordance with
the respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief
is subject to the discretion of the court before which any proceeding
therefor may be brought.
6.2. Governmental Approvals.
The execution, delivery and performance by the Borrower and any of its
Subsidiaries of this Credit Agreement and the other Loan
Documents to which the Borrower or any of its Subsidiaries is or is to become a
party and the transactions contemplated hereby and thereby do not require the
approval or consent of, or filing with, any governmental agency or authority
other than those already obtained.
6.3. Title to Properties; Leases.
Except as indicated on Schedule 6.3 hereto, the Borrower and its
Subsidiaries own all of the assets material to their business (except for minor
defects in title that do not interfere with their ability to conduct their
business as currently conducted) shown to be owned in the consolidated balance
sheet of the Borrower referred to in Section 6.4.2 as at the Balance Sheet Date
or acquired since that date (except property and assets sold or otherwise
disposed of in the ordinary course of business since the Balance Sheet Date),
subject to no rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.
6.4. Financial Statements; Projections and Solvency.
6.4.1. Fiscal Year.
The Borrower and each of its Subsidiaries has a fiscal year
which is the twelve months ending on December 31 of each calendar year.
6.4.2. Financial Statements.
There has been furnished to the Bank a consolidated balance
sheet of the Borrower and its Subsidiaries as at the Balance Sheet
Date, and a consolidated statement of income of the Borrower and its
Subsidiaries for the fiscal year then ended, certified by
PricewaterhouseCoopers LLP. Such balance sheet and statement of income
have been prepared in accordance with generally accepted accounting
principles and fairly present, in all material respects, the financial
condition of the Borrower as at the close of business on the date
thereof and the results of operations for the fiscal year then ended.
There are no contingent liabilities of the Borrower or any of its
Subsidiaries as of such date involving material amounts, known to the
officers of the Borrower, which were not disclosed in such balance
sheet and the notes related thereto.
6.4.3. Projections.
The projections of the annual operating budgets of the
Borrower and its Subsidiaries on a consolidated basis, balance sheets
and cash flow statements for the 2000 to 2002 fiscal years have been
delivered to the Bank. To the knowledge of the Borrower or any of its
Subsidiaries, no facts exist as of the date hereof that (individually
or in the aggregate) would result in any material adverse change in any
of such projections. The projections have been prepared by the Borrower
in good faith and are based upon estimates and assumptions believed by
the Borrower to be reasonable at the time made. Notwithstanding
anything herein to the contrary, the Bank understands that such
projections as they relate to future events are not to be viewed as
fact and that actual results during the period or periods covered
thereby may differ from the projected results set forth therein and the
Borrower makes no representation as to the ability of the Borrower or
any of its Subsidiaries to achieve the results set forth in any
projections.
6.4.4. Solvency.
The Borrower, individually, and the Borrower and its
Subsidiaries, on a consolidated basis, both before and after giving
effect to the transactions contemplated by this Credit Agreement and
the other Loan Documents (a) are solvent; (b) have assets having a fair
value in excess of their liabilities; (c) have assets having a fair
value in excess of the amount required to pay their liabilities on
existing debts as such debts become due and payable; and (d) have, and
expect to continue to have, access to adequate capital for the conduct
of their business and the ability to pay their debts from time to time
incurred in connection with the operation of their business as such
debts mature.
6.5. No Material Changes, etc.
Since the Balance Sheet Date there has occurred no materially adverse
change in the financial condition or business of the Borrower and its
Subsidiaries, taken as a whole, as shown on or reflected in the consolidated
balance sheet of the Borrower and its Subsidiaries as at the Balance Sheet Date,
or the consolidated statement of income for the fiscal year then ended, other
than changes that have not had any Material Adverse Effect. Since the Balance
Sheet Date, the Borrower has not made any Distribution other than the dividends
paid by the Borrower on March 15, 2000 and May 15, 2000.
6.6. Franchises, Patents, Copyrights, etc.
Except as set forth on Schedule 6.7 hereto, each of the Borrower and
its Subsidiaries possesses or has the right to use all franchises, patents,
copyrights, trademarks, trade names, licenses and permits, and rights in respect
of the foregoing, adequate for the conduct of its business substantially as now
conducted , except where the failure to so possess or have the right to use
could not be reasonably expected to have a Material Adverse Effect, and, to the
best of the Borrower's knowledge, no claim that the Borrower or any Subsidiary
is engaged in any activity that infringes upon the intellectual property rights
of any other Person is pending, except for any such claim which could not
reasonably be expected to have a Material Adverse Effect.
6.7. Litigation.
Except as set forth in Schedule 6.7 hereto, there are no actions,
suits, proceedings or investigations of any kind pending or, to the knowledge of
the Borrower, threatened against the Borrower or any of its Subsidiaries before
any court, tribunal or administrative agency or board as to which there is a
reasonable possibility of an adverse determination and that, if adversely
determined, could reasonably be expected to have a Material Adverse Effect, or
which question the validity of this Credit Agreement or any of the other Loan
Documents, or any action taken or to be taken pursuant hereto or thereto.
6.8. No Materially Adverse Contracts, etc.
Neither the Borrower nor any of its Subsidiaries is subject to any
charter, corporate or other legal restriction, or any judgment, decree, order,
rule or regulation that has or is expected, in the reasonable judgment of the
Borrower's Principal Officers, in the future to have a Material Adverse Effect.
Neither the Borrower nor any of its Subsidiaries is a party to any contract or
agreement that has or is expected, in the judgment of the Borrower's Principal
Officers, to have a Material Adverse Effect.
6.9. Compliance with Other Instruments, Laws, etc.
Neither the Borrower nor any of its Subsidiaries is in violation of any
provision of its charter documents, bylaws, or any agreement or instrument to
which it may be subject or by which it or any of its properties may be bound or
any decree, order, judgment, statute, license, rule or regulation, in any of the
foregoing cases in a manner that could reasonably be expected to have a Material
Adverse Effect.
6.10. Tax Status.
The Borrower and its Subsidiaries (a) have made or filed all federal
and material state income and all other material tax returns, reports and
declarations required by any jurisdiction to which any of them is subject, (b)
have paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings diligently
conducted and except as could not reasonably be expected to have a Material
Adverse Effect, and (c) have set aside on their books provisions reasonably
adequate for the payment of all taxes for periods subsequent to the periods to
which such returns, reports or declarations apply. There are no unpaid taxes in
any material amount claimed to be due by the taxing authority of any
jurisdiction, and the Principal Officers of the Borrower know of no basis for
any such claim, except for those being contested in good faith and by
appropriate proceedings diligently conducted and except as could not reasonably
be expected to have a Material Adverse Effect.
6.11. No Event of Default.
No Default or Event of Default has occurred and is continuing.
6.12. Holding Company and Investment Company Acts.
Neither the Borrower nor any of its Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935; nor is it an "investment company", or an "affiliated
company" or a "principal underwriter" of an "investment company", as such terms
are defined in the Investment Company Act of 1940.
6.13. Absence of Financing Statements, etc.
Except with respect to Permitted Liens, there is no financing
statement, security agreement, chattel mortgage, real estate mortgage or other
document filed or recorded with any filing records, registry or other public
office, that purports to cover, affect or give notice of any present or possible
future lien on, or security interest in, any assets or property of the Borrower
or any of its Subsidiaries or any rights relating thereto.
6.14. Certain Transactions.
Except for (a) ordinary course dealings with Foreign Subsidiaries
conducted in a manner consistent with past practices (or with respect to Foreign
Subsidiaries acquired or created after the Closing Date, conducted in a manner
consistent with current foreign operations), (b) transactions between the
Borrower and a Guarantor or between Guarantors and (c) arm's length transactions
pursuant to which the Borrower or any of its Subsidiaries makes payments in the
ordinary course of business upon terms no less favorable than the Borrower or
such Subsidiary could obtain from third parties, (i) none of the officers,
directors, or employees of the Borrower
or any of its Subsidiaries is presently a party to any transaction with the
Borrower or any of its Subsidiaries (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Borrower, any
corporation, partnership, trust or other entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee or partner and (ii) no Affiliate of the Borrower or any Subsidiary is
presently a party to any transaction with the Borrower or any of its
Subsidiaries, including any contract, agreement or other arrangement providing
for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from such
Affiliate or, to the actual knowledge of the Principals Officers of the
Borrower, any corporation, partnership, trust or other entity in which such
Affiliate has a substantial interest.
6.15. Employee Benefit Plans.
6.15.1. In General.
Each Employee Benefit Plan and each Guaranteed Pension Plan
has been maintained and operated in compliance in all material respects
with the provisions of ERISA and, to the extent applicable, the Code,
including but not limited to the provisions thereunder respecting
prohibited transactions and the bonding of fiduciaries and other
persons handling plan funds as required by Section 412 of ERISA except
to the extent that failure not to comply could not reasonably be
expected to have a Material Adverse Effect. The Borrower has
heretofore delivered to the Bank the most recently completed annual
report, Form 5500, with all required attachments, and actuarial
statement required to be submitted under Section 103(d) of ERISA,
with respect to each Guaranteed Pension Plan.
6.15.2. Terminability of Welfare Plans.
No Employee Benefit Plan, which is an employee welfare benefit
plan within the meaning of Section 3(1) or Section 3(2)(B) of ERISA,
provides benefit coverage subsequent to termination of employment,
except as required by Title I, Part 6 of ERISA or the applicable state
insurance laws. The Borrower may terminate each such Plan at any time
(or at any time subsequent to the expiration of any applicable
bargaining agreement) in the discretion of the Borrower without
liability to any Person other than for claims arising prior to
termination.
6.15.3. Guaranteed Pension Plans.
Each contribution required to be made to a Guaranteed Pension
Plan, whether required to be made to avoid the incurrence of an
accumulated funding deficiency, the notice or lien provisions of
Section 302(f) of ERISA, or otherwise, has been timely made except to
the extent that failure not to comply could not reasonably be expected
to have a Material Adverse Effect. Except to the extent that failure
not to comply could not reasonably be expected to have a Material
Adverse Effect, no waiver of an accumulated funding deficiency or
extension of amortization periods has been received with respect to any
Guaranteed Pension Plan, and neither the Borrower
nor any ERISA Affiliate is obligated to or has posted
security in connection with an amendment to a Guaranteed Pension
Plan pursuant to Section 307 of ERISA or Section
401(a)(29) of the Code. No liability to the PBGC (other than required
insurance premiums, all of which have been paid) has been incurred
by the Borrower or any ERISA Affiliate with respect to any Guaranteed
Pension Plan and there has not been any ERISA Reportable Event (other
than an ERISA Reportable Event as to which the requirement of 30 days
notice has been waived), or any other event or condition which
presents a material risk of termination of any Guaranteed Pension
Plan by the PBGC. Based on the latest valuation of each Guaranteed
Pension Plan (which in each case occurred within twelve months of the
date of this representation), and on the actuarial methods and
assumptions employed for that valuation, the aggregate benefit
liabilities of all such Guaranteed Pension Plans within the meaning of
Section 4001 of ERISA did not exceed the aggregate value of the assets
of all such Guaranteed Pension Plans, disregarding for this purpose the
benefit liabilities and assets of any Guaranteed Pension Plan with
assets in excess of benefit liabilities.
6.15.4. Multiemployer Plans.
Neither the Borrower nor any ERISA Affiliate has incurred any
material liability (including secondary liability) to any Multiemployer
Plan as a result of a complete or partial withdrawal from such
Multiemployer Plan under Section 4201 of ERISA or as a result of a sale
of assets described in Section 4204 of ERISA. Neither the Borrower
nor any ERISA Affiliate has been notified that any Multiemployer Plan
is in reorganization or insolvent under and within the meaning of
Section 4241 or Section 4245 of ERISA or is at risk of entering
reorganization or becoming insolvent, or that any Multiemployer Plan
intends to terminate or has been terminated under Section 4041A of
ERISA.
6.16. Use of Proceeds.
6.16.1. General.
The proceeds of the Revolving Credit Loans shall be used to
finance all or any portion of capital expenditures and/or Permitted
Acquisitions, and for working capital and general corporate purposes.
The Borrower will obtain Letters of Credit solely for working capital
and general corporate purposes.
6.16.2. Regulations U and X.
No portion of any Revolving Credit Loan is to be used, and no
portion of any Letter of Credit is to be obtained, for the purpose of
purchasing or carrying any "margin security" or "margin stock" as such
terms are used in Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224.
6.16.3. Ineligible Securities.
No portion of the proceeds of any Revolving Credit Loans is to
be used, and no portion of any Letter of Credit is to be obtained, for
the purpose of knowingly purchasing, or providing credit support for
the purchase of, during the underwriting or placement period or within
30 days thereafter, any Ineligible Securities underwritten or privately
placed by a Section 20 Subsidiary.
6.17. Environmental Compliance.
The Borrower has, with respect to the Real Estate owned by the Borrower
or any of its Subsidiaries (the "Owned Real Estate"), taken all reasonably
appropriate steps to investigate the past and present condition and usage of the
Owned Real Estate and the operations conducted thereon and, based upon such
diligent investigation, has made the determinations contained in this Section
6.17 with respect to the Owned Real Estate. With respect to the Real Estate
leased by the Borrower or any of its Subsidiaries (the "Leased Real Estate"),
the Borrower has not made any independent investigation and makes the
representations and warranties contained in this ss.6.17 based solely on its
actual knowledge.
(a) Except as set forth on Schedule 6.17, none of the
Borrower, its Subsidiaries or, to the best of the Borrower's knowledge,
any operator of the Real Estate or any operations thereon is in
violation, or written alleged violation, of any judgment, decree,
order, law, license, rule or regulation pertaining to environmental
matters, including without limitation, those arising under the Resource
Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended ("CERCLA"),
the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the
Federal Clean Water Act, the Federal Clean Air Act, the Toxic
Substances Control Act, or any state or local statute, regulation,
ordinance, order or decree relating to health, safety or the
environment (hereinafter "Environmental Laws"), which violation could
reasonably be expected to have a Material Adverse Effect.
(b) Except as set forth on Schedule 6.17, neither the Borrower
nor any of its Subsidiaries has received notice from any third party
including, without limitation, any federal, state or local governmental
authority, (i) that any one of them has been identified by the United
States Environmental Protection Agency ("EPA") as a potentially
responsible party under CERCLA with respect to a site listed on the
National Priorities List, 40 C.F.R. Part 300 Appendix B; (ii) that any
hazardous waste, as defined by 42 U.S.C. Section 6903(5), any
hazardous substances as defined by 42 U.S.C. Section 9601(14), any
pollutant or contaminant as defined by 42 U.S.C. Section 9601(33)
and any toxic substances, oil or hazardous materials or other chemicals
or substances regulated by any Environmental Laws ("Hazardous
Substances") which any one of them has generated, transported or
disposed of has been found at any site at which a federal, state or
local agency or other third party has conducted or has ordered that
the Borrower or any of its Subsidiaries conduct a remedial
investigation, removal or other response action pursuant to any
Environmental Law; or (iii) that it is or shall be a named party to
any claim, action, cause of action, complaint, or legal or
administrative proceeding (in each case, contingent or otherwise)
arising out of any third party's incurrence of costs, expenses, losses
or damages of any kind whatsoever in connection with the release of
Hazardous Substances.
(c) except as set forth on Schedule 6.17 attached hereto and
except for such matters as could not reasonably be expected to have a
Material Adverse
Effect: (i) no portion of the Real Estate has been
used for the handling, processing, storage or disposal of Hazardous
Substances except in accordance with applicable Environmental Laws;
and, to the best of the Borrower's knowledge, no underground tank or
other underground storage receptacle for Hazardous Substances is
located on any portion of the Real Estate; (ii) in the course of any
activities conducted by the Borrower, its Subsidiaries or, to the best
of the Borrower's knowledge, operators of its properties, no Hazardous
Substances have been generated or are being used on the Real Estate
except in accordance with applicable Environmental Laws; (iii) there
have been no releases (i.e. any past or present releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, disposing or dumping) of Hazardous Substances on, upon, into
or from the properties of the Borrower or its Subsidiaries, which
releases would have a material adverse effect on the value of any of
the Real Estate or adjacent properties or the environment; (iv) to the
best of the Borrower's knowledge, there have been no releases on, upon,
from or into any real property in the vicinity of any of the Real
Estate which, through soil or groundwater contamination, may have come
to be located on, and which would have a material adverse effect on the
value of, the Real Estate; and (v) in addition, any Hazardous
Substances that have been generated on any of the Real Estate have been
transported offsite only by carriers having an identification number
issued by the EPA, to the best of the Borrower's knowledge have been
treated or disposed of only by treatment or disposal facilities
maintaining valid permits as required under applicable Environmental
Laws, which transporters and facilities have been and are, to the best
of the Borrower's knowledge, operating in compliance with such permits
and applicable Environmental Laws; and
(d) none of the Borrower and its Subsidiaries or any of the
Real Estate is subject to any applicable environmental law requiring
the performance of Hazardous Substances site assessments, or the
removal or remediation of Hazardous Substances, or the giving of notice
to any governmental agency or the recording or delivery to other
Persons of an environmental disclosure document or statement by virtue
of the transactions set forth herein and contemplated hereby with
respect to which failure to comply could reasonably be expected to have
a Material Adverse Effect.
6.18. Subsidiaries, etc.
Schedule 6.18, as such schedule may be updated from time to time
pursuant to Section 7.14 or by the Borrower in its Compliance Certificate
delivered pursuant to Section 7.4(c), sets forth a true and complete list of all
Subsidiaries and Joint Ventures of the Borrower and its Subsidiaries.
6.19. Chief Executive Office.
The Borrower's chief executive office is at 9 Hampshire Street,
Mansfield, Massachusetts 02048, at which location its books and records are
kept. Each Guarantor's chief executive office is as set forth in the Guaranty to
which it is a party.
6.20. Capitalization Documents.
The Borrower and each Guarantor has delivered to the Bank true and
complete copies of all of the Capitalization Documents and neither the Borrower
nor any Guarantor has amended any such documents in any material respects,
except as may have been disclosed to and consented to by the Bank and except for
any amendment which does not adversely affect the interest of the Bank in
respect of the Obligations or any amendment permitted by Section 8.14.
6.21. Insurance.
The Borrower and each of the Guarantors maintains with financially
sound and reputable insurers insurance with respect to its properties and
businesses against such casualties and contingencies as is customarily
maintained by companies in the same or similar lines of business in the same or
similar locations, with the details of such coverage being more fully described
on Schedule 6.21 hereto.
6.22. Disclosure.
None of this Credit Agreement or any of the other Loan Documents
contains any untrue statement of a material fact or omits to state a material
fact (known to the Borrower or any of its Subsidiaries in the case of any
document or information not furnished by it or any of its Subsidiaries)
necessary in order to make the statements herein or therein, in light of the
circumstances under which they were made, not misleading in any material
respect. There is no fact known to the Borrower or any of its Subsidiaries which
materially adversely affects the business, assets, financial condition or
prospects of the Borrower and its Subsidiaries, taken as a whole, or which is
reasonably likely in the future to have a Material Adverse Effect, which, in
either case, has not been disclosed herein or in the other Loan Documents or in
a report, financial statement, exhibit, schedule or other writing furnished to
the Bank in connection with the transactions contemplated hereby or thereby.
7. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Revolving Credit
Loan, Unpaid Reimbursement Obligation, Letter of Credit or Revolving Credit Note
is outstanding or the Bank has any obligation to make any Revolving Credit Loans
or to issue, extend or renew any Letters of Credit:
7.1. Punctual Payment.
The Borrower will duly and punctually pay or cause to be paid the
principal and interest on the Revolving Credit Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the commitment fees and all other
amounts provided for in this Credit Agreement and the other Loan Documents to
which the Borrower or any of its Subsidiaries is a party, all in accordance with
the terms of this Credit Agreement and such other Loan Documents (but subject to
any applicable grace periods).
7.2. Maintenance of Office.
The Borrower will maintain its chief executive office in 9 Hampshire
Street, Mansfield, Massachusetts 02048, or at such other place in the United
States of America as the Borrower shall designate upon written notice to the
Bank, where notices, presentations and demands to or upon the Borrower in
respect of the Loan Documents to which the Borrower is a party may be given or
made.
7.3. Records and Accounts.
The Borrower will (a) keep, and cause each of its Subsidiaries to keep,
true and accurate records and books of account in which full, true and correct
entries will be made in accordance with generally accepted accounting
principles, (b) maintain adequate accounts and reserves for all taxes (including
income taxes), depreciation, depletion, obsolescence and amortization of its
properties and the properties of its Subsidiaries, contingencies, and other
reserves, and (c) at all times engage PricewaterhouseCoopers LLP or other
independent certified public accountants satisfactory to the Bank as the
independent certified public accountants of the Borrower and its Subsidiaries
and will not permit more than thirty (30) days to elapse between the cessation
of such firm's (or any successor firm's) engagement as the independent certified
public accountants of the Borrower and its Subsidiaries and the appointment in
such capacity of a successor firm as shall be satisfactory to the Bank.
7.4. Financial Statements, Certificates and Information.
The Borrower will deliver to the Bank:
(a) as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries, as at
the end of such year, and the related consolidated statement of income
and consolidated statement of cash flow for such year, each setting
forth in comparative form the figures for the previous fiscal year and
all such consolidated statements to be in reasonable detail, prepared
in accordance with generally accepted accounting principles, and
certified without qualification by PricewaterhouseCoopers LLP or by
other independent certified public accountants satisfactory to the
Bank, together with a written statement from such accountants to the
effect that they have read a copy of the covenants set forth in Section
9 of this Credit Agreement and definitions relating thereto, and that,
in making the examination necessary to said certification, they have
obtained no knowledge of any Default or Event of Default, or, if such
accountants shall have obtained knowledge of any then existing Default
or Event of Default they shall disclose in such statement any such
Default or Event of Default; provided that such accountants shall not
be liable to the Bank for failure to obtain knowledge of any Default or
Event of Default;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of
the Borrower, copies of the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries, as at the end of such quarter, and the
related consolidated statement of income and consolidated statement of
cash flow for the portion of the Borrower's fiscal year then elapsed,
all in reasonable detail and prepared in accordance with generally
accepted accounting principles, together with a certification by the
principal financial or accounting officer of the Borrower that the
information contained in such financial statements fairly presents, in
all material respects, the financial position of the Borrower and its
Subsidiaries on the date thereof (subject to year-end adjustments in
conformity with rules for interim financial reporting);
(c) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement
certified by the principal financial or accounting officer of the
Borrower in substantially the form of Exhibit C hereto and setting
forth in reasonable detail computations evidencing compliance with the
covenants contained in Section 9 and (if applicable) reconciliations to
reflect changes in generally accepted accounting principles since the
Balance Sheet Date and updating Schedule 6.18 to reflect the creation
or acquisition of any new Subsidiaries or any new Joint Ventures
permitted under this Credit Agreement;
(d) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the Securities
and Exchange Commission or sent to the stockholders of the Borrower;
(e) from time to time upon the reasonable request of the Bank
(but in no event more frequently than twice during any fiscal year,
unless an Event of Default shall have occurred and is continuing),
projections of the Borrower and its Subsidiaries updating those
projections delivered to the Bank and referred to in Section 6.4.3 or,
if applicable, updating any later such projections delivered in
response to a request pursuant to this Section 7.4(e); and
(f) from time to time such other financial data and
information (including accountants' management letters) as the Bank may
reasonably request.
7.5. Notices.
7.5.1. Defaults.
The Borrower will promptly notify the Bank in writing of the
occurrence of any Default or Event of Default. If any Person shall give
any notice in writing or exercise any legal remedies to the knowledge
of any Principal Officer of the Borrower or any Subsidiary in respect
of a claimed default (whether or not constituting an Event of Default)
under this Credit Agreement or any other note, evidence of
indebtedness, indenture or other monetary obligation to which or with
respect to which the Borrower or any of its Subsidiaries is a party or
obligor, whether as principal, guarantor, surety or otherwise, in each
case, in an individual principal amount of $1,000,000 or more, the
Borrower shall forthwith give written notice thereof to the Bank,
describing the notice or action and the nature of the claimed default.
7.5.2. Environmental Events.
The Borrower will promptly give notice to the Bank (a) of any
violation of any Environmental Law that the Borrower or any of its
Subsidiaries reports in writing or is reportable by such Person in
writing (or for which any written report supplemental to any oral
report is made) to any federal, state or local environmental agency
except for any violations which could not reasonably be expected to
have a Material Adverse Effect and (b) promptly after becoming aware
thereof, of any inquiry, proceeding, investigation, or other action,
including a notice from any agency of potential
environmental liability, of any federal, state or local environmental
agency or board, relating to Real Estate, except for any such
inquiry, proceeding, investigation or other action or notice which
could not reasonably be expected to have a Material Adverse Effect.
7.5.3. Notification of Claim against Property.
The Borrower will, promptly after becoming aware thereof,
notify the Bank in writing of any setoff or any claims (including, with
respect to the Real Estate, environmental claims that have been
asserted in writing) to which any of the Borrower's property is
subject, to the extent that any such setoff or claims could reasonably
be expected to have a Material Adverse Effect.
7.5.4. Notice of Litigation and Judgments.
The Borrower will, and will cause each of its Subsidiaries to,
give notice to the Bank in writing promptly after of becoming aware of
any litigation or proceedings threatened in writing or any pending
litigation and proceedings affecting the Borrower or any of its
Subsidiaries or to which the Borrower or any of its Subsidiaries is or
becomes a party involving an uninsured claim against the Borrower or
any of its Subsidiaries that could reasonably be expected to have a
Material Adverse Effect, which notice shall state the nature and status
of such litigation or proceedings, provided, as to any pending
litigation matter existing on the Closing Date or subsequently noticed
to the Bank, the Borrower and its Subsidiaries shall only be required
to provide the Bank with any updates on the status of such matters if
there occurs any material adverse change in the status of such matters.
The Borrower will, and will cause each of its Subsidiaries to, give
notice to the Bank, in writing, in form and detail satisfactory to the
Bank promptly after any judgment not covered by insurance, final or
otherwise, is rendered against the Borrower or any of its Subsidiaries
in an amount in excess of $1,000,000.
7.6. Corporate Existence; Maintenance of Properties.
The Borrower will do or cause to be done all things necessary to
preserve and keep in full force and effect (a) its corporate existence, and (b)
the rights and franchises material to its business and those of businesses of
its Subsidiaries and will not, and will not cause or permit any of its
Subsidiaries to, convert to a limited liability company except, solely with
respect to Subsidiaries which are not Guarantors, to the extent that any such
conversion would not be materially disadvantageous to the Bank or the Borrower,
such Subsidiary may be converted to a limited liability company. It (i) will
cause all of its properties and those of its Subsidiaries used or useful in the
conduct of its business or the business of its Subsidiaries to be maintained and
kept in good condition, repair and working order, ordinary wear and tear
excepted, and supplied with all necessary equipment, except to the extent that
the failure to do so could not reasonably be expected to have a Material Adverse
Effect, (ii) will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Borrower may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times, except to
the extent that the failure to do so could not reasonably be expected to have a
Material Adverse Effect, and (iii) will, and
will cause each of its Subsidiaries to, continue to engage primarily in the
businesses now conducted by them and in related or similar businesses; provided
that nothing in this Section 7.6 shall prevent the Borrower from discontinuing
the operation and maintenance of any of its properties or any of those of its
Subsidiaries if such discontinuance is, in the judgment of the Borrower,
desirable in the conduct of its or their business and that do not in the
aggregate materially adversely affect the business of the Borrower and its
Subsidiaries on a consolidated basis.
7.7. Insurance.
The Borrower will, and will cause each of its Subsidiaries to, maintain
with financially sound and reputable insurers insurance with respect to its
properties and business against such casualties and contingencies and in such
amounts as shall be in accordance with the general practices of businesses
engaged in similar activities in similar geographic area.
7.8. Taxes.
The Borrower will, and will cause each of its Subsidiaries to, duly pay
and discharge, or cause to be paid and discharged, before the same shall become
overdue, all material taxes, assessments and other governmental charges imposed
upon it and its real properties, sales and activities, or any part thereof, or
upon the income or profits therefrom, as well as all material claims for labor,
materials, or supplies that if unpaid might by law become a lien or charge upon
any of its property; provided that any such tax, assessment, charge, levy or
claim need not be paid if the validity or amount thereof shall currently be
contested in good faith by appropriate proceedings diligently conducted and if
the Borrower or such Subsidiary shall have set aside on its books adequate
reserves with respect thereto; and provided further that the Borrower and each
Subsidiary of the Borrower will pay all such taxes, assessments, charges, levies
or claims forthwith upon the commencement of proceedings to foreclose any lien
that may have attached as security therefor, except to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
7.9. Inspection of Properties and Books, etc.
7.9.1. General.
The Borrower shall permit the Bank through itself or any of
the Bank's designated representatives, to visit and inspect any of the
properties of the Borrower or any of its Subsidiaries, to examine the
books of account of the Borrower and its Subsidiaries (and to make
copies thereof and extracts therefrom), and to discuss the affairs,
finances and accounts of the Borrower and its Subsidiaries with, and to
be advised as to the same by, its and their officers, all at such
reasonable times and intervals as the Bank may reasonably request and,
unless an Event of Default shall have occurred and be continuing, upon
reasonable prior notice.
7.9.2. Appraisals.
No more frequently than once each calendar year, or more
frequently as determined by the Bank if an Event of Default shall have
occurred and be continuing, upon the request of the Bank, the Borrower
will obtain and deliver to the Bank appraisal reports in form and
substance and from appraisers satisfactory to the Bank, stating (i) the
then current fair market, orderly liquidation and forced liquidation
values of all or any portion of the
equipment or real estate owned by the Borrower or any of its
Subsidiaries and (ii) the then current business value of each of the
Borrower and its Subsidiaries. All such appraisals shall be conducted
and made at the expense of the Borrower.
7.9.3. Communications with Accountants.
At the request of the Bank, the Borrower shall deliver a
letter addressed to the Borrower's independent certified public
accountants instructing them that, in the presence of the Borrower, the
Bank may communicate with such accountants and authorizing such
accountants to disclose to the Bank any and all financial statements
and other supporting financial documents and schedules including copies
of any management letter with respect to the business, financial
condition and other affairs of the Borrower or any of its Subsidiaries.
7.10. Compliance with Laws, Contracts, Licenses, and Permits.
The Borrower will, and will cause each of its Subsidiaries to, comply
in all material respects with (a) the applicable laws and regulations wherever
its business is conducted, including all Environmental Laws, except as could not
reasonably be expected to have a Material Adverse Effect, (b) the provisions of
its charter documents and by-laws, (c) all agreements and instruments by which
it or any of its properties may be bound except as could not reasonably be
expected to have a Material Adverse Effect and (d) all applicable decrees,
orders, and judgments except as could not reasonably be expected to have a
Material Adverse Effect. If any authorization, consent, approval, permit or
license from any officer, agency or instrumentality of any government shall
become necessary or required in order that the Borrower or any of its
Subsidiaries may fulfill any of its obligations hereunder or any of the other
Loan Documents to which the Borrower or such Subsidiary is a party, the Borrower
will promptly upon becoming aware thereof notify the Bank of such necessity or
requirement and, at the request of the Bank, will, or (as the case may be) will
cause such Subsidiary to, immediately take or cause to be taken all reasonable
steps within the power of the Borrower or such Subsidiary to obtain such
authorization, consent, approval, permit or license and furnish the Bank with
evidence thereof.
7.11. Employee Benefit Plans.
The Borrower will (a) promptly upon filing the same with the Department
of Labor or Internal Revenue Service upon request of the Bank, furnish to the
Bank a copy of the most recent actuarial statement required to be submitted
under Section 103(d) of ERISA and Annual Report, Form 5500, with all required
attachments, in respect of each Guaranteed Pension Plan and (b) promptly upon
receipt or dispatch, furnish to the Bank any notice, report or demand sent or
received in respect of a Guaranteed Pension Plan under Sections 302, 4041, 4042,
4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a Multiemployer Plan,
under Sections 4041A, 4202, 4219, 4242, or 4245 of ERISA.
7.12. Use of Proceeds.
The Borrower will use the proceeds of the Revolving Credit Loans solely
to finance all or any portion of capital expenditures and/or Permitted
Acquisitions, and for working capital and general corporate purposes. The
Borrower will obtain Letters of Credit solely for working capital and general
corporate purposes.
7.13. Replacement Instruments.
Upon receipt of an affidavit of loss and indemnity of an officer of the
Bank as to the loss, theft, destruction or mutilation of any Revolving Credit
Note in form and substance mutually satisfactory to the Bank and the Borrower,
and, in the case of any such loss, theft, destruction or mutilation, upon
cancellation of such Revolving Credit Note,
the Borrower shall issue, in lieu thereof, a replacement Revolving
Credit Note in the same principal amount thereof and otherwise of like tenor.
7.14. New Guarantors.
The Borrower will cause each wholly-owned Domestic Subsidiary of the
Borrower (other than the Inactive Subsidiaries) created, acquired or otherwise
existing, on or after the Closing Date to promptly become a Guarantor and shall
cause such Subsidiary to execute and deliver to the Bank a Guaranty, together
with, at the request of the Bank, (a) legal opinions similar to those delivered
by the Borrower's counsel to the Bank on the Closing Date and otherwise in form
and substance satisfactory to the Bank opining as to the authorization, validity
and enforceability of such Guaranty, (b) copies of such Subsidiary's charter,
by-laws or other similar organizational documents and (c) copies of such
resolutions and certificates of such Subsidiary as to the authorization of such
Guaranty. The Bank will update Schedule 6.18 to reflect the addition of such
Subsidiary.
7.15. Further Assurances.
The Borrower will, and will cause each of its Subsidiaries to,
cooperate with the Bank and execute such further instruments and documents as
the Bank shall reasonably request to carry out to its reasonable satisfaction
the transactions contemplated by this Credit Agreement and the other Loan
Documents.
7.16. Ownership of Guarantors.
The Borrower will at all times legally and beneficially own, directly
or indirectly, all of the issued and outstanding shares of capital stock of or
other ownership interests in each Guarantor, except for any shares of capital
stock or other ownership interests required to be issued to qualify directors
under applicable law and except to the extent the Borrower and/or one or more
Guarantors enters into a merger, consolidation or other transaction permitted by
Section 8.5.
7.17. Inactive Subsidiaries.
In the event that at any time an Inactive Subsidiary owns assets having
a total book value in excess of $25,000 or commences any business activity other
than in connection with its own dissolution, the Borrower will cause such
Inactive Subsidiary to promptly become a Guarantor and shall cause such Inactive
Subsidiary to execute and deliver to the Bank a Guaranty, together with, at the
request of the Bank, (a) legal opinions similar to those delivered by the
Borrower's counsel to the Bank on the Closing Date and otherwise in form and
substance satisfactory to the Bank opining as to the authorization, validity and
enforceability of such Guaranty, (b) copies of such Inactive Subsidiary's
charter, by-laws or other similar organizational documents and (c) copies of
such resolutions and certificates of such Inactive Subsidiary as to the
authorization of such Guaranty.
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Revolving Credit
Loan, Unpaid Reimbursement Obligation, Letter of Credit or Revolving Credit Note
is outstanding or the Bank has any obligation to make any Revolving Credit Loans
or to issue, extend or renew any Letters of Credit:
8.1. Restrictions on Indebtedness.
The Borrower will not, and will not permit any of its Subsidiaries to,
create, incur, assume, guarantee or be or remain liable, contingently or
otherwise, with respect to any Indebtedness other than:
(a) Indebtedness to the Bank arising under any of the Loan
Documents;
(b) warranties of products or services, in each case incurred
in the ordinary course of business;
(c) Indebtedness incurred in connection with the acquisition
after the date hereof of any real or personal property by the Borrower
or such Subsidiary or under any Capitalized Lease entered into after
the date hereof, provided that the aggregate principal amount of such
Indebtedness of the Borrower and its Subsidiaries shall not exceed the
aggregate amount of $1,000,000 at any one time;
(d) Indebtedness existing on the date hereof and listed and
described on Schedule 8.1 hereto and any extension, renewal, refunding
or refinancing of such Indebtedness that does not increase the
principal amount of such Indebtedness outstanding on the date hereof;
(e) Indebtedness of a Guarantor to the Borrower or any other
Guarantor or of the Borrower to any Guarantor;
(f) Indebtedness of the Borrower or any of its Subsidiaries
in respect of derivative contracts entered into in the ordinary course
of business and not for speculative purposes;
(g) Indebtedness of any Person that becomes a Subsidiary of
the Borrower after the date hereof pursuant to a Permitted Acquisition
so long as (i) such Indebtedness existed at the time of such Permitted
Acquisition and was not created in anticipation thereof and (ii) the
aggregate outstanding principal amount of Indebtedness incurred
pursuant to this Section 8.1(g) does not exceed $1,000,000 at any one
time outstanding;
(h) Indebtedness of the Borrower arising as a result of the
Borrower's reduction of the number of stock options of an employee at
the time of such employee's exercise of its stock options pursuant to
any Stock Option Plan and the Borrower's agreement to subsequently pay
the employee's taxes resulting
from such exercise provided that such tax payments are not overdue for
more than thirty (30) days;
(i) Indebtedness of the Borrower or any of its Subsidiaries
arising from such Person's guaranty of lease payments of a Foreign
Subsidiary provided that such guaranty is made in the ordinary course
of business consistent with past practices (or with respect to Foreign
Subsidiaries acquired or created after the Closing Date, consistent
with the Borrower's foreign operations as of the Closing Date);
(j) unsecured guaranties or other contingent obligations or
commitments of the Borrower or any of the Guarantors as set forth in
clause (k) of the definition of the term "Indebtedness" in respect of
Indebtedness of the Borrower or any of the Guarantors to the extent
such Indebtedness is otherwise permitted under this Section 8.1; and
(k) additional Indebtedness (whether similar or dissimilar to
other Indebtedness in this Section 8.1) of the Borrower or any
Subsidiary (excluding Inactive Subsidiaries) in an aggregate principal
amount not to exceed $2,000,000 at any one time outstanding.
8.2. Restrictions on Liens.
The Borrower will not, and will not permit any of its Subsidiaries to,
(a) create or incur or suffer to be created or incurred or to exist any lien,
encumbrance, mortgage, pledge, charge, restriction or other security interest of
any kind upon any of its property or assets of any character whether now owned
or hereafter acquired, or upon the income or profits therefrom; (b) transfer any
of such property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; (c) acquire, or
agree or have an option to acquire, any property or assets upon conditional sale
or other title retention or purchase money security agreement, device or
arrangement; (d) suffer to exist for a period of more than thirty (30) days
after the same shall have been incurred any Indebtedness or claim or demand
against it that if unpaid might by law or upon bankruptcy or insolvency, or
otherwise, be given any priority whatsoever over its general creditors; or (e)
sell, assign, pledge or otherwise transfer any "receivables" as defined in
clause (g) of the definition of the term "Indebtedness," with or without
recourse; provided that the Borrower or any of its Subsidiaries may create or
incur or suffer to be created or incurred or to exist:
(i) liens in favor of the Borrower on all or part of the
assets of Subsidiaries of the Borrower securing Indebtedness owing
by Subsidiaries of the Borrower to the Borrower;
(ii) liens to secure taxes, assessments and other government
charges in respect of obligations not more than thirty (30) days
overdue or which are being contested in good faith and by appropriate
proceedings diligently conducted and with respect to which adequate
reserves have been established and are being maintained in accordance
with generally accepted accounting
principles or liens on properties to secure claims for
labor, material or supplies in respect of obligations
not more than thirty (30) days overdue or which are being contested in
good faith and by appropriate proceedings diligently conducted and with
respect to which adequate reserves have been established and are being
maintained in accordance with generally accepted accounting principles;
(iii) deposits or pledges made in connection with, or to
secure payment of, workmen's compensation, unemployment insurance, old
age pensions or other social security obligations;
(iv) liens on properties in respect of judgments or awards
not constituting an Event of Default under Section 12.1(i), but only so
long as execution is not levied thereunder;
(v) liens of carriers, warehousemen, mechanics and
materialmen, and other like liens on properties in existence less than
120 days from the date of creation thereof in respect of obligations
not more than twenty (20) days overdue or which are being contested in
good faith and by appropriate proceedings diligently conducted and with
respect to which adequate reserves have been established and are being
maintained in accordance with generally accepted accounting principles;
(vi) encumbrances on Real Estate consisting of easements,
rights of way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases to which the Borrower or a
Subsidiary of the Borrower is a party, and other minor liens or
encumbrances none of which in the opinion of the Borrower interferes
materially with the use of the property affected in the ordinary
conduct of the business of the Borrower and its Subsidiaries, which
defects do not individually or in the aggregate have a Material Adverse
Effect;
(vii) liens existing on the date hereof and listed on
Schedule 8.2 hereto;
(viii) purchase money security interests in or purchase money
mortgages on real or personal property acquired after the date hereof
to secure purchase money Indebtedness of the type and amount permitted
by Section 8.1(c), incurred in connection with the acquisition of
such property, which security interests or mortgages cover only the
real or personal property so acquired and liens on personal property
arising under Capitalized Leases entered into after the date hereof
securing Capitalized Leases of the type and amount permitted by
Section 8.1(c) and covering only the personal property so leased;
(ix) liens to secure the performance of surety and appeal
bonds, performance bonds and similar obligations and liens arising from
a seller's title retention provisions with respect to goods and
services acquired in the ordinary course of business, in each case so
long as proceedings to commence foreclosure in respect of any such lien
shall not have commenced;
(x) statutory liens of landlords on security deposits,
statutory liens of banks and rights of set-off and other liens imposed
by law, in each case incurred in the ordinary course of business;
(xi) liens on assets of a Subsidiary of the Borrower acquired
after the Closing Date pursuant to a Permitted Acquisition, which
security interests cover only the assets so acquired, securing
Indebtedness permitted by Section 8.1 hereof provided (1) such
security interests were not created in contemplation of such
Permitted Acquisition; (2) such security interests are terminated and
discharged to the satisfaction of the Bank within ninety (90) days
of the date such Permitted Acquisition is consummated; and (3) within
ten (10) Business Days after the date of consummation of such
Permitted Acquisition the Borrower shall have provided to the Bank a
description of any liens or security interests existing as to such
Subsidiary on such date together with a certification that arrangements
are being made to terminate all security interests and liens within
the time period permitted by subparagraph (2) hereof (such liens and
security interests being hereinafter referred to as the "Temporary
Liens");
(xii) a disposition, without recourse, of defaulted
receivables for collection and not as a financing arrangement or a
disposition of receivables, with or without recourse, by a Foreign
Subsidiary in the ordinary course of business to the extent such
disposition is consistent with customary practices in such Foreign
Subsidiary's country of business; and
(xiii) to the extent any term of any license or lease entered
into in the ordinary course of business would be considered a
restriction upon property, such license or lease, provided neither the
Borrower nor any Subsidiary has granted any lien or other security
interest to any other Person in connection therewith.
8.3. Restrictions on Investments.
The Borrower will not, and will not permit any of its Subsidiaries to,
make or permit to exist or to remain outstanding any Investment except
Investments in:
(a) Investments permitted by the Investment Policy as of
the date when any such Investment is made;
(b) Investments existing on the date hereof and listed on
Schedule 8.3 hereto and any renewals, amendments or replacements
thereof which do not increase the amount thereof;
(c) Investments with respect to Indebtedness permitted
by Section 8.1(e) so long as such entities remain Guarantors hereunder;
(d) Investments consisting of the Guaranty or other
guarantees expressly permitted by Section 8.1;
(e) (i) Investments consisting of loans and advances to
employees for moving, entertainment, travel and other similar expenses
in the ordinary course of business not to exceed $500,000 in the
aggregate at any time outstanding and (ii) Investments made in
connection with employees' compensation packages consisting of advances
to employees for moving, entertainment, travel and other similar
expenses in the ordinary course of business consistent with past
practices;
(f) Investments made after the date hereof in connection with
Permitted Acquisitions;
(g) the Borrower and its Subsidiaries (i) may make additional
Investments in their respective Domestic Subsidiaries (excluding
Inactive Subsidiaries) which are not Guarantors (whether such
Subsidiaries are now existing or hereafter created or acquired) in an
aggregate amount not to exceed $50,000 at any one time outstanding,
(ii) may make Investments in their respective Foreign Subsidiaries as
the initial capitalization of such Foreign Subsidiary in an aggregate
amount not to exceed $250,000 for any Foreign Subsidiary and
$10,000,000 in the aggregate for all Investments in all Foreign
Subsidiaries during the term of this Credit Agreement, and (iii) may
make additional Investments in their respective Foreign Subsidiaries
(whether such Subsidiaries are now existing or hereafter created or
acquired) in an aggregate amount not to exceed $500,000 in any fiscal
year;
(h) the Borrower and its Subsidiaries may continue to own
their existing Investments in the Japanese Joint Venture as of the
date of this Credit Agreement;
(i) Investments consisting of loans and advances to officers,
directors or employees of the Borrower or any of its Subsidiaries or
their immediate family members or relatives thereof, or trusts or
partnerships for the benefit of any of the foregoing, to finance the
acquisition of common stock of the Borrower in an aggregate amount not
to exceed $500,000 at any one time outstanding;
(j) Investments by the Borrower or any Guarantor in the
Borrower or a Guarantor so long as, with respect to any Investment in a
Guarantor, such Person remains a Subsidiary of the Borrower and a
Guarantor hereunder; and
(k) Investments by the Borrower made after the date hereof in
joint ventures or other minority interests in Persons (other than
Investments referred to elsewhere in this Section 8.3) in an aggregate
amount not to exceed $10,000,000 in any fiscal year less the aggregate
amount expended by the Borrower in such fiscal year for Permitted
Acquisitions.
8.4. Restricted Payments.
Neither the Borrower nor any of its Subsidiaries will make any
Restricted Payments; provided, however (a) so long as no Default or Event of
Default has occurred and is continuing or would exist as a result thereof, the
Borrower or any Subsidiary shall be permitted to make Restricted Payments, (b)
any Subsidiary of
the Borrower shall be permitted to make Restricted Payments to the Borrower or
any Guarantor and shall be permitted to make Distributions to its shareholders,
partners and other equity holders so long as such Distributions are declared and
paid ratably to the shareholders, partners and other equity holders of such
Subsidiary and (c) the Borrower shall be permitted to make Restricted Payments
to any Guarantor and any Guarantor shall be permitted to make Restricted
Payments to the Borrower or any other Guarantor.
8.5. Merger, Consolidation and Disposition of Assets.
8.5.1. Mergers and Acquisitions.
The Borrower will not, and will not permit any of its
Subsidiaries to, become a party to any merger or consolidation, or
effect any acquisition of capital stock of any other Person in a manner
that causes such Person to become a Subsidiary of the Borrower or any
acquisition of all or substantially all of the assets of any Person or
any division or business except (a) the merger or consolidation of one
or more of the Subsidiaries of the Borrower with and into the Borrower;
(b) the merger or consolidation of two or more Subsidiaries of the
Borrower; or (c) any merger or asset or stock acquisition by the
Borrower or any of its Subsidiaries with or of Persons in the same or
similar line of business as the Borrower, (a "Permitted Acquisition")
where (1) the Borrower has provided the Bank with written notice of
such Permitted Acquisition within ten (10) Business Days after the
consummation thereof, which notice shall include a reasonably detailed
description of such Permitted Acquisition; (2) the business to be
acquired would not subject the Bank to any additional regulatory or
third party approvals in connection with the exercise of its rights and
remedies under this Credit Agreement or any other Loan Document; (3) no
contingent liabilities will be incurred or assumed in connection with
such Permitted Acquisition which could reasonably be expected to have a
Material Adverse Effect, and any Indebtedness incurred or assumed in
connection with such Permitted Acquisition shall have been permitted to
be incurred or assumed pursuant to Section 8.1 hereof; (4) after the
consummation of the Permitted Acquisition, to the extent such
acquisition was a stock acquisition, either (A) the Person so acquired
is merged with and into the Borrower or its Subsidiary, with the
Borrower or such Subsidiary, as the case may be, being the survivor of
such merger (but only to the extent such Subsidiary is a Guarantor) or
(B) to the extent such Person is not merged with and into the Borrower
or a Subsidiary, such Person shall become a Guarantor hereunder to the
extent such Person is a wholly-owned, Domestic Subsidiary; (5) the
aggregate amount of the purchase price for all Permitted Acquisitions
(or series of related acquisitions) shall not exceed $10,000,000 in any
fiscal year less the aggregate amount of Investments made by the
Borrower in such fiscal year pursuant to Section 8.3(k); (6) the board
of directors and the shareholders (if required by applicable law), or
the equivalent, of each of the Borrower and the Person to be acquired
has approved such merger, consolidation or acquisition and such
Permitted Acquisition is not considered "hostile"; (7) no Default or
Event of Default then exists or would result after giving effect
to the Permitted Acquisition; and (8) within ten (10) Business Days
after the date of consummation of such Permitted Acquisition, the
Borrower shall have provided to the Bank a description of each
Temporary Lien together with a certification that arrangements are
being made to terminate all such Temporary Liens within the time
period permitted by Section 8.2(xi)(2).
8.5.2. Disposition of Assets.
The Borrower will not, and will not permit any of its
Subsidiaries to, become a party to or agree to or effect any
disposition of assets, other than (a) Excluded Dispositions and (b)
Asset Sales, the Net Cash Sale Proceeds of which are applied pursuant
to the terms of Section 3.2.2; provided, (i) no Default or Event of
Default has occurred and is continuing at the time of such Asset Sale;
(ii) the fair market value of all assets sold in any fiscal year
pursuant to Asset Sales does not exceed, in the aggregate, $1,000,000;
(iii) the Person selling such asset receives 100% of the purchase price
in cash; and (iv) the purchase price received by such Person in
connection with any Asset Sale is not less than the fair market value
of the property being sold in the good faith opinion of such Person.
8.6. Sale and Leaseback.
The Borrower will not, and will not permit any of its Subsidiaries to,
enter into any arrangement, directly or indirectly, whereby the Borrower or any
Subsidiary of the Borrower shall sell or transfer any property owned by it in
order then or thereafter to lease such property or lease other property that the
Borrower or any Subsidiary of the Borrower intends to use for substantially the
same purpose as the property being sold or transferred.
8.7. Compliance with Environmental Laws.
The Borrower will not, and will not permit any of its Subsidiaries to,
(a) use any of the Real Estate or any portion thereof for the handling,
processing, storage or disposal of Hazardous Substances, (b) cause or permit to
be located on any of the Real Estate any underground tank or other underground
storage receptacle for Hazardous Substances, (c) generate any Hazardous
Substances on any of the Real Estate, (d) conduct any activity at any Real
Estate or use any Real Estate in any manner so as to cause a release (i.e.
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing or dumping) or threatened release of
Hazardous Substances on, upon or into the Real Estate or (e) otherwise conduct
any activity at any Real Estate or use any Real Estate in any manner that would
violate any Environmental Law or bring such Real Estate in violation of any
Environmental Law, in each case in any manner that would have a Material Adverse
Effect.
8.8. Employee Benefit Plans.
Neither the Borrower nor any ERISA Affiliate will, except as could not
reasonably be expected to have a Material Adverse Effect,:
(a) engage in any "prohibited transaction" within the
meaning of Section 406 of ERISA or Section 4975 of the Code which could
result in a material liability for the Borrower or any of its
Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in Section
302 of ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of the Borrower or any of its Subsidiaries pursuant to Section
302(f) or Section 4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances
requiring the posting of security pursuant to Section 307 of
ERISA or Section 401(a)(29) of the Code; or
(e) permit or take any action which would result in the
aggregate benefit liabilities (with the meaning of Section 4001 of
ERISA) of all Guaranteed Pension Plans exceeding the value of the
aggregate assets of such Plans, disregarding for this purpose the
benefit liabilities and assets of any such Plan with assets in
excess of benefit liabilities.
8.9. Business Activities.
The Borrower will not, and will not permit any of its Subsidiaries to,
be primarily engaged directly or indirectly (whether through Subsidiaries or
otherwise) in any type of business other than the businesses conducted by them
on the Closing Date and in related or similar businesses.
8.10. Fiscal Year.
The Borrower will not, and will not permit any of it Subsidiaries to,
change the date of the end of its fiscal year from that set forth in
Section 6.4.1.
8.11. Transactions with Affiliates.
Except for (a) those transactions set forth on Schedule 6.14, (b)
ordinary course dealings with Foreign Subsidiaries conducted in a manner
consistent with past practices (or with respect to Foreign Subsidiaries acquired
or created after the Closing Date, conducted in a manner consistent with the
Borrower's foreign operations as of the Closing Date), and (c) transactions
between the Borrower and a Guarantor or between Guarantors, the Borrower will
not, and will not permit any of its Subsidiaries to, engage in any transaction
with any Affiliate (other than for services as employees, officers and
directors), including any contract, agreement or other arrangement providing for
the furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any such
Affiliate on terms more favorable to such Person than would have been obtainable
on an arm's-length basis in the ordinary course of business.
8.12. Upstream Limitations.
The Borrower will not, and will not permit any of its Subsidiaries to,
enter into any agreement, contract or arrangement (other than the Credit
Agreement and the other Loan Documents) restricting the ability of any
Subsidiary to pay or make dividends or distributions in cash or kind to the
Borrower, to make loans, advances or other payments of whatsoever nature to the
Borrower, or to make transfers or distributions of all or any part of its assets
to the Borrower, provided that (a) the foregoing will not apply to restrictions
or conditions imposed by law and (b) the foregoing, insofar as it relates to
restrictions on transfers, will not apply to customary anti-assignment
provisions in leases, licensing agreements and other non-financing contracts
entered into by the Borrower or such Subsidiary in the ordinary course of its
business or to restrictions or conditions imposed by agreements with Persons
prohibiting any such restriction on transfer on assets in which such Person has
a security interest which is permitted by Section 8.2
8.13. Inconsistent Agreements.
The Borrower will not, and will not permit any of its Subsidiaries to,
enter into any agreement containing any provision which would be violated or
breached by the performance by the Borrower or any of its Subsidiaries of their
respective obligations hereunder or under any of the Loan Documents, the
violation of which could reasonably be expected to have a Material Adverse
Effect.
8.14. Modification of Capitalization Documents.
The Borrower will not, nor will it permit any of its Subsidiaries to,
consent to or agree to any material amendment, supplement or other modification
to the Capitalization Documents without the prior written consent of the Bank
except for any such amendment, supplement or modification which would not have
any adverse effect on the Bank's rights under the Loan Documents or the
Borrower's or any of its Subsidiaries' obligations under the Loan Documents or
which is being effected in connection with any transaction permitted by
Section 8.5.1.
8.15. Negative Pledge.
Except as set forth on Schedule 8.15, the Borrower will not, and will
not permit any of its Subsidiaries to, enter into any agreement (excluding this
Credit Agreement and the other Loan Documents and any document evidencing
Indebtedness of a Subsidiary of the Borrower acquired in a Permitted
Acquisition, but only so long as the Temporary Lien is permitted to exist)
prohibiting the creation or assumption of any lien upon its properties, revenues
or assets or those of any of its Subsidiaries, whether now owned or hereafter
acquired other than (a) agreements with Persons prohibiting any such lien on
assets in which such Person has a security interest which is permitted by
Section 8.2, (b) restrictions or conditions imposed by law and (c)
customary anti-assignment provisions in leases, licensing agreements
and other non-financing contracts entered into by the Borrower or such
Subsidiary in the ordinary course of its business.
9. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Revolving Credit
Loan, Unpaid Reimbursement Obligation, Letter of Credit or Revolving Credit Note
is outstanding or the Bank has any obligation to make any Revolving Credit Loans
or to issue, extend or renew any Letters of Credit:
9.1. Leverage Ratio.
The Borrower will not permit the Leverage Ratio to exceed 1.00:1.00 as
of the last day of any quarter of any fiscal year of the Borrower.
9.2. Quick Ratio.
The Borrower will not permit the ratio of Consolidated Quick Assets to
Consolidated Current Liabilities to be less than 1.25:1.00 at any time.
9.3. Profitable Operations.
The Borrower will not permit the sum of (without duplication) (a)
Consolidated PreTax Income plus (b) total interest expense paid or accrued for
such period (including payments consisting of interest in respect of any
Capitalized Lease or any Synthetic Lease and including commitment fees, agency
fees, facility fees, balance deficiency fees and similar fees or expenses in
connection with the borrowing of money), plus (c) all extraordinary nonrecurring
non-cash items of expense and minus (d) all extraordinary nonrecurring items of
income for any four consecutive fiscal quarters (treated as a single accounting
period) to be less than $10,000,000.00.
10. CLOSING CONDITIONS.
The obligations of the Bank to make the initial Revolving Credit Loans
and to issue any initial Letters of Credit shall be subject to the satisfaction
of the following conditions precedent:
10.1. Loan Documents.
Each of the Loan Documents shall have been duly executed and delivered
by the respective parties thereto, shall be in full force and effect and shall
be in form and substance satisfactory to the Bank. The Bank shall have received
a fully executed copy of each such document.
10.2. Certified Copies of Charter Documents.
The Bank shall have received from the Borrower and each of the
Guarantors a copy, certified by a duly authorized officer of such Person to be
true and complete on the Closing Date, of each of (i) its charter or other
incorporation documents as in effect on such date of certification, and (ii) its
by-laws as in effect on such date.
10.3. Corporate Action.
All corporate action necessary for the valid execution, delivery and
performance by the Borrower and each of the Guarantors of this Credit Agreement
and the other Loan Documents to which it is or is to become a party shall have
been duly and effectively taken, and evidence thereof satisfactory to the Bank
shall have been provided to the Bank.
10.4. Incumbency Certificate.
The Bank shall have received from the Borrower and each of the
Guarantors an incumbency certificate, dated as of the Closing Date, signed by a
duly authorized officer of the Borrower or such Guarantor, and giving the name
and bearing a specimen signature of each individual who shall be authorized: (a)
to sign, in the name and on behalf of each of the Borrower or such Guarantor,
each of the Loan Documents to which the Borrower or such Guarantor is or is to
become a party; (b) in the case of the Borrower, to make Loan Requests and
Conversion Requests and to apply for Letters of Credit; and (c) to give notices
and to take other action on its behalf under the Loan Documents.
10.5. UCC Search Results.
The Bank shall have received the results of UCC searches indicating no
liens other than Permitted Liens and otherwise in form and substance
satisfactory to the Bank.
10.6. Certificates of Insurance.
The Bank shall have received a certificate of insurance from an
independent insurance broker dated as of the Closing Date, identifying insurers,
types of insurance, insurance limits, and policy terms.
10.7. Opinion of Counsel.
The Bank shall have received a favorable legal opinion addressed to the
Bank, dated as of the Closing Date, in form and substance satisfactory to the
Bank from Palmer & Dodge LLP, counsel to the Borrower and its Subsidiaries,
which counsel may rely on opinions of local counsel.
10.8. Payment of Fees.
The Borrower shall have paid to the Bank the closing fee pursuant to
Section 5.1 and all other fees due and payable hereunder.
10.9. No Material Adverse Change.
The Bank shall be satisfied that there shall have occurred no material
adverse change in the business, operations, assets, properties or condition
(financial or otherwise) of the Borrower, individually, or the Borrower and its
Subsidiaries, taken as a whole, since the Balance Sheet Date.
10.10. Compliance Certificate.
The Bank shall have received from the Borrower a Compliance Certificate
setting forth the Borrower's Leverage Ratio as of March 31, 2000.
10.11. Proceedings and Documents.
All proceedings in connection with the transactions contemplated by
this Credit Agreement, the other Loan Documents and all other documents incident
thereto shall be satisfactory in substance and in form to the Bank and the
Bank's Special Counsel, and the Bank and such counsel shall have received all
information and such counterpart originals or certified or other copies of such
documents as the Bank may reasonably request.
11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Bank to make any Revolving Credit Loan and to
issue, extend or renew any Letter of Credit, in each case whether on or after
the Closing Date, shall also be subject to the satisfaction of the following
conditions precedent:
11.1. Representations True; No Event of Default.
Each of the representations and warranties of any of the Borrower and
its Subsidiaries contained in this Credit Agreement, the other Loan Documents or
in any document or instrument delivered by the Borrower or any of its
Subsidiaries pursuant to or in connection with this Credit Agreement shall be
true in all material respects as of the date as of which they were made and
shall also be true in all material respects at and as of the time of the making
of such Revolving Credit Loan or the issuance, extension or renewal of such
Letter of Credit, with the same effect as if made at and as of that time (except
to the extent of changes resulting from transactions contemplated or permitted
by this Credit Agreement and the other Loan Documents and changes occurring in
the ordinary course of business that singly or in the aggregate are not
materially adverse to the business, properties, condition (financial or
otherwise), assets, operations or income of the Borrower and the Guarantors,
taken as a whole, and to the extent that such representations and warranties
relate expressly to an earlier date) and no Default or Event of Default shall
have occurred and be continuing. Each Loan Request and each request for the
issuance, extension or renewal of a Letter of Credit submitted by the Borrower
to the Bank shall constitute a certification by the Borrower as to this
Section 11.1 as of
the date the related Revolving Credit Loan is made or Letter of Credit is
issued, renewed or extended.
11.2. No Legal Impediment.
No change shall have occurred in any law or regulations thereunder or
interpretations thereof that in the reasonable opinion of the Bank would make it
illegal for the Bank to make such Revolving Credit Loan or to issue, extend or
renew such Letter of Credit.
11.3. Governmental Regulation.
The Bank shall have received such statements in substance and form
reasonably satisfactory to the Bank as the Bank shall require for the purpose of
compliance with any applicable regulations of the Comptroller of the Currency or
the Board of Governors of the Federal Reserve System.
12. EVENTS OF DEFAULT; ACCELERATION; ETC.
12.1. Events of Default and Acceleration.
If any of the following events ("Events of Default" or, if the giving
of notice or the lapse of time or both is required, then, prior to such notice
or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the
Revolving Credit Loans or any Reimbursement Obligation when the same
shall become due and payable, whether at the stated date of maturity or
any accelerated date of maturity or at any other date fixed for
payment;
(b) the Borrower shall fail to pay any interest on the
Revolving Credit Loans, the commitment fee, any Letter of Credit Fee or
other sums due hereunder or under any of the other Loan Documents,
within three (3) days after the date when the same shall become due and
payable, whether at the stated date of maturity or any accelerated date
of maturity or at any other date fixed for payment;
(c) the Borrower shall fail to comply with any of its
covenants contained in Sections 7.1, 7.4(a), (b) and (c), 7.5.1,
7.6 (a), 7.12, 7.14 or 7.16, 8 or 9;
(d) (i) the Borrower shall fail to comply with any of its
covenants contained in Section 7.4 (other than those specified
elsewhere in this Section 12.1) within five (5) days after written
notice of such failure has been given to the Borrower by the Bank or
(ii) the Borrower or any Guarantor shall fail to perform any term,
covenant or agreement contained herein or in any of the other Loan
Documents (other than those specified elsewhere in this Section
12.1) to which it is a party for twenty (20) days after written notice
of such failure has been given to the Borrower by the Bank;
(e) any representation or warranty of the Borrower or any of
its Subsidiaries in this Credit Agreement or any of the other Loan
Documents or in any other document or instrument delivered pursuant to
or in connection with
this Credit Agreement shall prove to have been false in any material
respect upon the date when made or deemed to have been made or
repeated;
(f) the Borrower or any of its Subsidiaries shall (i) fail to
pay at maturity, or within any applicable period of grace, any
obligation for borrowed money or credit received or in respect of any
Capitalized Leases, in each case, in an individual principal amount of
$1,000,000 or more, or (ii) fail to observe or perform any material
term, covenant or agreement contained in any agreement by which it is
bound, evidencing or securing borrowed money or credit received or in
respect of any Capitalized Leases in an amount equal to or greater than
the individual principal amount specified in clause (i) above for such
period of time as would permit (assuming the giving of appropriate
notice if required) the holder or holders thereof or of any obligations
issued thereunder to accelerate the maturity thereof, or any such
holder or holders shall rescind or shall have a right to rescind the
purchase of any such obligations;
(g) the Borrower or any of its Subsidiaries shall make a
general assignment for the benefit of creditors, or admit in writing
its inability to pay or generally fail to pay its debts as they mature
or become due, or shall petition or apply for the appointment of a
trustee or other custodian, liquidator or receiver of the Borrower or
any of its Subsidiaries or of any substantial part of the assets of the
Borrower or any of its Subsidiaries or shall commence any case or other
proceeding relating to the Borrower or any of its Subsidiaries under
any bankruptcy, reorganization, arrangement, insolvency, readjustment
of debt, dissolution or liquidation or similar law of any jurisdiction,
now or hereafter in effect, or shall take any action to authorize or in
furtherance of any of the foregoing, or if any such petition or
application shall be filed or any such case or other proceeding shall
be commenced against the Borrower or any of its Subsidiaries and the
Borrower or any of its Subsidiaries shall indicate in writing its
approval thereof, consent thereto or acquiescence therein or such
petition or application shall not have been dismissed within sixty (60)
days following the filing thereof;
(h) a decree or order is entered by a court of competent
jurisdiction appointing any such trustee, custodian, liquidator or
receiver of the Borrower or any of its Subsidiaries or any substantial
part of the assets of the Borrower or any of its Subsidiaries or
adjudicating the Borrower or any of its Subsidiaries bankrupt or
insolvent, or approving a petition in any such case or other
proceeding, or a decree or order for relief is entered in respect of
the Borrower or any Subsidiary of the Borrower in an involuntary case
under federal bankruptcy laws as now or hereafter constituted;
(i) a final judgment or judgments for the payment of money in
excess of $1,000,000 in the aggregate (exclusive of judgment amounts
covered by insurance) shall be rendered by one or more courts,
administrative tribunals or other bodies having jurisdiction against
the Borrower or any of its Subsidiaries and the same shall not be
discharged (or provision shall not be made for such
discharge) or vacated, or a stay of execution thereof shall not be
procured, within thirty (30) days from the date of entry thereof and
the Borrower or the relevant Subsidiary shall not, within said period
of thirty (30) days, or such longer period during which execution of
the same shall have been stayed, appeal therefrom and cause the
execution thereof to be stayed during such appeal;
(j) if any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded, in each case otherwise than in
accordance with the terms thereof or hereof or with the express prior
written agreement, consent or approval of the Bank, or any action at
law, suit or in equity or other legal proceeding to cancel, revoke or
rescind any of the Loan Documents shall be commenced by or on behalf of
the Borrower or any of its Subsidiaries party thereto or any of their
respective stockholders, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan Documents is illegal, invalid
or unenforceable in accordance with the terms thereof;
(k) the Borrower or any ERISA Affiliate incurs any liability
to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA
in an aggregate amount exceeding $500,000, or the Borrower or any ERISA
Affiliate is assessed withdrawal liability pursuant to Title IV of
ERISA by a Multiemployer Plan requiring aggregate annual payments
exceeding $500,000, or any of the following occurs with respect to a
Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to
make a required installment or other payment (within the meaning of
Section 302(f)(1) of ERISA), provided that it could reasonably be
expected that such event (A) could be expected to result in liability
of the Borrower or any of its Subsidiaries to the PBGC or such
Guaranteed Pension Plan in an aggregate amount exceeding $500,000 and
(B) could constitute grounds for the termination of such Guaranteed
Pension Plan by the PBGC, for the appointment by the appropriate
United States District Court of a trustee to administer such
Guaranteed Pension Plan or for the imposition of a lien in favor of
such Guaranteed Pension Plan; or (ii) the appointment by a United
States District Court of a trustee to administer such Guaranteed
Pension Plan; or (iii) the institution by the PBGC of proceedings
to terminate such Guaranteed Pension Plan;
(l) the Borrower or any of its Subsidiaries shall be enjoined,
restrained or in any way prevented by the order of any court or any
administrative or regulatory agency from conducting any material part
of its business, the Borrower or such Subsidiary shall have complied
with such order and such order shall continue in effect for more than
thirty (30) days and, with respect to a Subsidiary of the Borrower
only, such order could reasonably be expected to result in a Material
Adverse Effect; or
(m) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall have acquired
beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under said
Act) of 25% or more of the outstanding shares of common stock of the
Borrower or, during any period of twelve consecutive calendar months,
individuals who were directors of the Borrower on the first day of such
period (together with any new directors whose election by such board of
directors or whose nomination for reelection by the shareholders of the
Borrower was approved by a vote of a majority of the directors of the
Borrower then still in office who where either directors on the first
day of such period or whose election or nomination for election was
previously so approved) shall cease to constitute a majority of the
board of directors of the Borrower;
then, and in any such event, so long as the same may be continuing, the Bank may
by notice in writing to the Borrower declare all amounts owing with respect to
this Credit Agreement, the Revolving Credit Note and the other Loan Documents
and all Reimbursement Obligations to be, and they shall thereupon forthwith
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by the
Borrower; provided that in the event of any Event of Default specified in
Sections 12.1(g) or 12.1(h), all such amounts shall become immediately due and
payable automatically and without any requirement of notice from the Bank.
12.2. Termination of Commitments.
If any one or more of the Events of Default specified in Section
12.1(g) or Section 12.1(h) shall occur, any unused portion of the credit
hereunder shall forthwith terminate and the Bank shall be relieved of all
further obligations to make Revolving Credit Loans to the Borrower and to issue,
extend or renew Letters of Credit. If any other Event of Default shall have
occurred and be continuing, the Bank may by notice to the Borrower, terminate
the unused portion of the credit hereunder, and upon such notice being given
such unused portion of the credit hereunder shall terminate immediately and the
Bank shall be relieved of all further obligations to make Revolving Credit Loans
and to issue, extend or renew Letters of Credit. No termination of the credit
hereunder shall relieve the Borrower or any of its Subsidiaries of any of the
Obligations.
12.3. Remedies.
In case any one or more of the Events of Default shall have occurred
and be continuing, and whether or not the Bank shall have accelerated the
maturity of the Revolving Credit Loans pursuant to Section 12.1, the Bank, if
owed any amount with respect to the Revolving Credit Loans or the Reimbursement
Obligations, may proceed to protect and enforce its rights by suit in equity,
action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Credit Agreement and
the other Loan Documents or any instrument pursuant to which the Obligations to
the Bank are evidenced, including as permitted by applicable law the obtaining
of the ex parte appointment of a receiver, and, if such amount shall have become
due, by declaration or otherwise, proceed to enforce the payment thereof or any
other legal or equitable right of the Bank. No remedy herein conferred upon the
Bank or the holder of any Revolving Credit Note is intended to be
exclusive of any other remedy and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or any other provision of law.
13. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Default under Section 12.1(b) or any Event of Default, any deposits credited
by or due from the Bank to the Borrower may be applied to or set off by the Bank
against the payment of Obligations of the Borrower to the Bank without notice to
the Borrower, which is hereby expressly waived by the Borrower.
14. EXPENSES AND INDEMNIFICATION.
14.1. Expenses.
The Borrower agrees to pay (a) the reasonable costs of producing and
reproducing this Credit Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (b) any taxes (including any
interest and penalties in respect thereto) payable by the Bank (other than taxes
based upon the Bank's net income) on or with respect to the transactions
contemplated by this Credit Agreement (the Borrower hereby agreeing to indemnify
the Bank with respect thereto), (c) the reasonable fees, expenses and
disbursements of the Bank's Special Counsel or any local counsel to the Bank
incurred in connection with the preparation, execution and delivery of the Loan
Documents and other instruments mentioned herein, (d) the reasonable fees,
expenses and disbursements of the Bank's Special Counsel or any local counsel to
the Bank incurred in connection with the administration or interpretation of the
Loan Documents and other instruments mentioned herein, each closing hereunder,
any amendments, modifications, approvals, consents or waivers hereto or
hereunder, or the cancellation of any Loan Document upon payment in full in cash
of all of the Obligations or pursuant to any terms of such Loan Document for
providing for such cancellation, (e) the fees, expenses and disbursements of the
Bank or any of its affiliates incurred by the Bank or such affiliate in
connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein, (f) all reasonable
out-of-pocket expenses (including without limitation reasonable attorneys' fees
and costs, which attorneys may be employees of the Bank, and reasonable
consulting, accounting, appraisal, investment banking and similar professional
fees and charges) incurred by the Bank in connection with (i) the enforcement of
or preservation of rights under any of the Loan Documents against the Borrower
or any of its Subsidiaries or the administration thereof after the occurrence of
a Default or Event of Default and (ii) any litigation, proceeding or dispute
arising hereunder or under any of the other Loan Documents, in any way related
to the Bank's relationship with the Borrower or any of its Subsidiaries and (g)
without duplication of any amount paid by the Borrower under clause (c), (d) or
(e) above, all reasonable fees, expenses and disbursements of the Bank incurred
in connection with UCC searches.
14.2. Indemnification.
The Borrower agrees to indemnify and hold harmless the Bank and its
affiliates from and against any and all claims, actions and suits whether
groundless or otherwise, and from and against any and all liabilities, losses,
damages and expenses of every nature and character arising out of this Credit
Agreement or any of the other Loan Documents or the transactions contemplated
hereby including, without limitation, (a) any actual or proposed use by the
Borrower or any of its Subsidiaries of the proceeds of any of the Revolving
Credit Loans or Letters of Credit, (b) the Borrower or any of its Subsidiaries
entering into or performing this Credit Agreement or any of the other Loan
Documents or (c) with respect to the Borrower and its Subsidiaries and their
respective properties and assets, the violation of any Environmental Law, the
presence, disposal, escape, seepage, leakage, spillage, discharge, emission,
release or threatened release of any Hazardous Substances or any action, suit,
proceeding or investigation brought or threatened with respect to any Hazardous
Substances (including, but not limited to, claims with respect to wrongful
death, personal injury or damage to property), in each case including, without
limitation, the reasonable fees and disbursements of counsel and allocated costs
of internal counsel incurred in connection with any such investigation,
litigation or other proceeding; provided, however, that such indemnity shall
not, as to any indemnitee be available to the extent such claims, actions,
suits, liabilities, losses, damages or expenses have resulted from the gross
negligence or willful misconduct of such indemnitee. In litigation, or the
preparation therefor, the Bank and its affiliates shall be entitled to select
their own counsel and, in addition to the foregoing indemnity, the Borrower
agrees to pay promptly the reasonable fees and expenses of such counsel. If, and
to the extent that the obligations of the Borrower under this Section 14.2 are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment in satisfaction of such obligations which is
permissible under applicable law.
14.3. Survival.
The covenants contained in this Section 14 shall survive payment
or satisfaction in full of all other Obligations.
15. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
15.1. Confidentiality.
The Bank agrees, on behalf of itself and each of its affiliates,
directors, officers, employees and representatives, to use reasonable
precautions to keep confidential, in accordance with their customary procedures
for handling confidential information of the same nature and in accordance with
safe and sound banking practices, any non-public information supplied to it by
the Borrower or any of its Subsidiaries pursuant to this Credit Agreement,
provided that nothing herein shall limit the disclosure of any such information
(a) after such information shall have become public other than through a
violation of this Section 15, (b) to the extent required by statute, rule,
regulation or judicial process, (c) to counsel for the Bank, (d) to bank
examiners or any other regulatory authority having jurisdiction over the Bank,
or to auditors or accountants, (e) to the Bank or any affiliate of the Bank to
the extent reasonably required in connection with the transactions contemplated
by this Credit Agreement, (f) in connection with any litigation to which the
Bank or any affiliate of the Bank is a party in which the Bank has been required
or, in the opinion of its legal counsel, deems it necessary or advisable to
produce such information, or in connection with the enforcement of rights or
remedies hereunder or under any other Loan Document, or (g) to any assignee or
participant (or prospective assignee or participant)
so long as such assignee or participant agrees (i) to treat in confidence
such information unless such information otherwise becomes public
knowledge, (ii) not to disclose such information to a third party, except
as required by law or legal process and (iii) not to make use of such
information for purposes of transactions unrelated to such contemplated
assignment or participation.
15.2. Prior Notification.
Unless specifically prohibited by applicable law or court order, the
Bank shall, prior to disclosure thereof, notify the Borrower of any request for
disclosure of any such non-public information by any governmental agency or
representative thereof (other than any such request in connection with an
examination of the financial condition of the Bank by such governmental agency)
or pursuant to legal process.
15.3. Other.
In no event shall the Bank be obligated or required to return any
materials furnished to it by the Borrower or any of its Subsidiaries. The
obligations of the Bank under this Section 15 shall supersede and replace the
obligations of the Bank under any confidentiality letter in respect of this
financing signed and delivered by the Bank to the Borrower prior to the date
hereof and shall be binding upon any assignee of, or purchaser of any
participation in, any interest in any of the Revolving Credit Loans or
Reimbursement Obligations from the Bank.
16. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein,
in the Revolving Credit Notes, in any of the other Loan Documents or in any
documents or other papers delivered by or on behalf of the Borrower or any of
its Subsidiaries pursuant hereto shall be deemed to have been relied upon by the
Bank, notwithstanding any investigation heretofore or hereafter made by any of
them, and shall survive the making by the Bank of any of the Revolving Credit
Loans and the issuance, extension or renewal of any Letters of Credit, as herein
contemplated, and shall continue in full force and effect so long as any Letter
of Credit or any amount due under this Credit Agreement or the Revolving Credit
Notes or any of the other Loan Documents remains outstanding or the Bank has any
obligation to make any Revolving Credit Loans or to issue, extend or renew any
Letter of Credit. The obligations of the Borrower under Section 14 of this
Credit Agreement shall survive the termination of this Credit Agreement. All
statements contained in any certificate or other paper delivered to the Bank at
any time by or on behalf of the Borrower or any of its Subsidiaries pursuant
hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by the Borrower or such Subsidiary
hereunder.
17. ASSIGNMENT AND PARTICIPATION.
17.1. Assignment by Bank.
The Bank may at any time or from time to time assign all or any portion
of its rights and obligations hereunder and under the other Loan Documents to
one or more banks or other financial institutions (each an "Assignee") but only
with the prior written consent of the Borrower, such consent not to be
unreasonably withheld, provided that the Borrower's consent shall not be
required in
the case of any assignment effected while an Event of Default shall have
occurred and be continuing and the Borrower agrees that it shall execute, or
cause to be executed, such documents, including without limitation, amendments
to this Credit Agreement and to any other documents, instruments and agreements
executed in connection herewith as the Bank shall deem necessary to effect the
foregoing. In addition, at the request of the Bank and any such Assignee, the
Borrower shall issue one or more new promissory notes, as applicable, to any
such Assignee and, if the Bank has retained any of its rights and obligations
hereunder following such assignment, to the Bank, which new promissory notes
shall be issued in replacement of, but not in discharge of, the liability
evidenced by the promissory note held by the Bank prior to such assignment and
shall reflect the amount of the respective commitments and loans held by such
Assignee and the Bank after giving effect to such assignment. Upon the Banks'
receipt of any consent from the Borrower required under this Section 17.1, the
execution and delivery of appropriate assignment documentation, amendments and
any other documentation required by the Bank in connection with such assignment,
and the payment by Assignee of the purchase price agreed to by the Bank and such
Assignee, such Assignee shall be a party to this Credit Agreement and shall have
all of the rights and obligations of a bank hereunder (and under any and all
other guaranties, documents, instruments and agreements executed in connection
herewith) to the extent that such rights and obligations have been assigned by
the Bank pursuant to the assignment documentation between the Bank and such
Assignee, and the Bank shall be released from its obligations hereunder and
thereunder to a corresponding extent. Anything contained in this Section 17.1 to
the contrary notwithstanding, the Bank may at any time pledge all or any portion
of its interest and rights under this Credit Agreement (including all or any
portion of its Revolving Credit Note) to any of the twelve Federal Reserve Banks
organized under Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No
such pledge or the enforcement thereof shall release the Bank from its
obligations hereunder or under any of the other Loan Documents.
17.2. Participation by Bank.
The Bank shall have the right at any time or from time to time, and
without the consent of the Borrower, to sell participations to one or more banks
or other financial institutions (a "Participant") in all or any portion of its
rights and obligations hereunder; provided that (a) the Bank's obligations under
this Credit Agreement and the other Loan Documents shall remain unchanged, (b)
the Bank shall remain solely responsible to the Borrower for the performance of
such obligations and (c) the Borrower shall continue to deal directly and solely
with the Bank in connection with the Bank's rights and obligations under this
Credit Agreement and the other Loan Documents. Any agreement or instrument
pursuant to which the Bank sells a participation shall provide that the Bank
shall retain the sole right to enforce this Credit Agreement and the other Loan
Documents and to approve any amendment, modification or waiver of any provision
of this Credit Agreement, provided that such agreement or instrument may provide
that the Bank will not, without the consent of the Participant, agree to any
amendment, modification or waiver which would (i) extend the term or increase
the Commitment of the Bank, if the effect of such increase would be to increase
the aggregate principal amount of participations which the Participant is
required to purchase from the Bank under such agreement or instrument evidencing
such participations, (ii) reduce the principal amount of any Revolving Credit
Loan in
which the Participant has purchased a participation or the amount which the
Borrower is required to reimburse the Bank hereunder in respect of any drawing
under a Letter of Credit in which the Participant has purchased a participation
or reduce the rate of interest thereon, (iii) reduce the amount of any
commitment fees or Letter of Credit Fees to which the Participant is entitled or
(iv) extend any regularly scheduled payment date for principal or interest. The
Bank may furnish any information concerning the Borrower in its possession from
time to time to prospective participants, provided that the Bank shall require
any prospective participant to agree in writing to maintain the confidentiality
of such information on the terms set forth in Section 15.
17.3. Assignment by Borrower.
The Borrower shall not assign or transfer any of its rights or
obligations under any of the Loan Documents without the prior written consent of
the Bank.
18. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Revolving Credit Notes or any Letter of Credit
Applications shall be in writing and shall be delivered in hand, mailed by
United States registered or certified first class mail, postage prepaid, sent by
overnight courier, or sent by telecopy or facsimile and confirmed by delivery
via courier or postal service, addressed as follows:
(a) if to the Borrower, at 9 Hampshire Street, Mansfield,
Massachusetts 02048, Attention: Michael El-Hillow, Chief Financial
Officer, or at such other address for notice as the Borrower shall last
have furnished in writing to the Person giving the notice; and
(b) if to the Bank, at 100 Federal Street, Boston,
Massachusetts 02110, USA, Attention: Debra E. DelVecchio, Vice
President, or such other address for notice as the Bank shall last have
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
19. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
SAID COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS
OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS
OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND
CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS
IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED
IN SECTION 18. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT
IS BROUGHT IN AN INCONVENIENT COURT.
20. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
21. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each of which
when executed and delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Credit Agreement it shall not
be necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.
22. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in Section 24.
23. WAIVER OF JURY TRIAL.
Each of the Borrower and the Bank hereby waives its right to a jury
trial with respect to any action or claim arising out of any dispute in
connection with this Credit Agreement, the Revolving Credit Notes or any of the
other Loan Documents, any rights or obligations hereunder or thereunder or the
performance of such rights and obligations. Except as prohibited by law, the
Borrower hereby waives any right it may have to claim or recover in any
litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Borrower (a) certifies that no representative, agent or
attorney of the Bank has represented, expressly or otherwise, that the Bank
would not, in the event of litigation, seek to enforce the foregoing waivers and
(b) acknowledges that the Bank has been induced to enter into this Credit
Agreement, the other Loan Documents to which it is a party by, among other
things, the waivers and certifications contained herein.
24. CONSENTS, AMENDMENTS, WAIVERS, ETC.
This Agreement may not be amended or waived except by a written
instrument signed by the Borrower and the Bank. No waiver shall extend to or
affect any obligation not expressly waived or impair any right consequent
thereon. No course of dealing or delay or omission on the part of the Bank in
exercising any right shall operate as a waiver thereof or otherwise be
prejudicial thereto. No notice to or demand upon the Borrower shall entitle the
Borrower to other or further notice or demand in similar or other circumstances.
25. USURY.
All agreements between the Borrower and the Bank are hereby expressly
limited so that in no contingency or event whatsoever, whether by reason of
acceleration of the maturity of the Revolving Credit Note or otherwise, shall
the amount paid or agreed to be paid to the Bank for the use or the forbearance
of the Indebtedness represented by the Revolving Credit Note exceed the maximum
permissible under applicable law. In this regard, it is expressly agreed that it
is the intent of the Borrower and the Bank, in the execution, delivery and
acceptance of the Revolving Credit Note, to contract in strict compliance with
the laws of the Commonwealth of Massachusetts. If, under any circumstances
whatsoever, performance or fulfillment of any provision of the Revolving Credit
Note or any of the other Loan Documents at the time such provision is to be
performed or fulfilled shall involve exceeding the limit of validity prescribed
by applicable law, then the obligation so to be performed or fulfilled shall be
reduced automatically to the limits of such validity, and if under any
circumstances whatsoever the Bank should ever receive as interest an amount
which would exceed the highest lawful rate, such amount which would be excessive
interest shall be applied to the reduction of the principal balance evidenced by
the Revolving Credit Note and not to the payment of interest. The provisions of
this Section 25 shall control every other provision of this Credit Agreement and
the Revolving Credit Note.
26. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
HELIX TECHNOLOGY CORPORATION
By: /s/Michael El-Hillow
-------------------------------------------------
Name: Michael El-Hillow
Title: Vice President and Chief Financial Officer
FLEET NATIONAL BANK
By: /s/Debra L. DelVecchio
-------------------------------------------------
Name: Debra L. DelVecchio
Title: Vice President