iv
BOS-BUS:347608.7
REVOLVING CREDIT AGREEMENT
dated as of January 22, 1997
by and among
MILLIPORE CORPORATION (the "Borrower")
and
THE FIRST NATIONAL BANK OF BOSTON ("FNBB"),
ABN AMRO BANK N.V. ("ABN"),
and the other financial institutions which become
a party to this agreement
(Collectively, the "Banks")
and
FNBB, as the Administrative Agent
(the "Administrative Agent") and
ABN, as the Documentation Agent
(the "Documentation Agent")
(Collectively, the "Agents")
1. DEFINITIONS AND RULES OF INTERPRETATION. 1
1.1. Definitions. 1
1.2. Rules of Interpretation. 14
2. THE SYNDICATED FACILITY. 15
2.1. Commitment to Lend Syndicated Loans. 15
2.2. Facility Fee. 15
2.3. Reduction of Total Commitment; Increase of
Total Commitment. 16
2.4. The Syndicated Notes. 16
2.5. Interest on Syndicated Loans. 17
2.6. Requests for Syndicated Loans. 17
2.7. Election of Eurodollar Rate; Notice of
Election; Interest Periods; Minimum Amounts. 18
2.8. Funds for Syndicated Credit Loans. 19
2.9. Maturity of the Syndicated Loans and
Reimbursement Obligations. 20
2.10. Optional Prepayments or Repayments of
Syndicated Loans. 20
3. LETTERS OF CREDIT. 20
3.1. Letter of Credit Commitments. 20
3.2. Reimbursement Obligation of the Borrower. 21
3.3. Obligations Absolute. 22
3.4. Reliance by the Administrative Agent. 22
3.5. Letter of Credit Fee. 23
4. COMPETITIVE BID LOANS. 23
4.1. The Competitive Bid Option. 23
4.2. Competitive Bid Notes. 23
4.3. Competitive Bid Quote Request; Invitation for
Competitive Bid Quotes. 24
4.4. Alternative Manner of Procedure. 25
4.5. Submission and Contents of Competitive Bid
Quotes. 25
4.6. Notice to Borrower. 27
4.7. Acceptance and Notice by Borrower and
Administrative Agent. 27
4.8. Allocation by Administrative Agent. 28
4.9. Funding of Competitive Bid Loans. 28
4.10. Funding Losses. 28
4.11. Repayment of Competitive Bid Loans;
Interest. 29
5. Provisions Relating to All Loans and letters of
credit. 29
5.1. Payments. 29
5.2. Mandatory Repayments of the Loans. 32
5.3. Computations. 32
5.4. Illegality; Inability to Determine Eurodollar
Rate. 32
5.5. Additional Costs, Etc. 33
5.6. Capital Adequacy. 35
5.7. Certificate. 35
5.8. Eurodollar and Competitive Bid Indemnity. 35
5.9. Interest on Overdue Amounts. 36
5.10. Interest Limitation. 36
5.11. Reasonable Efforts to Mitigate. 36
5.12. Replacement of Banks. 37
5.13. Advances by Administrative Agent. 38
6. REPRESENTATIONS AND WARRANTIES. 38
6.1. Corporate Authority. 38
6.2. Governmental Approvals. 39
6.3. Title to Properties; Leases. 39
6.4. Financial Statements; Solvency. 40
6.5. No Material Changes, Etc. 40
6.6. Franchises, Patents, Copyrights, Etc. 41
6.7. Litigation. 41
6.8. Compliance With Other Instruments, Laws,
Etc. 42
6.9. Tax Status. 42
6.10. No Event of Default. 42
6.11. Holding Company and Investment Company
Acts. 42
6.12. Absence of Financing Statements, Etc. 43
6.13. Employee Benefit Plans. 43
6.14. Environmental Compliance. 44
6.15. True Copies of Charter and Other
Documents. 45
6.16. Disclosure. 46
6.17. Permits and Governmental Authority. 46
6.18. Purchase of Tylan Shares. 46
7. AFFIRMATIVE COVENANTS OF THE BORROWER. 46
7.1. Punctual Payment. 46
7.2. Maintenance of Office. 47
7.3. Records and Accounts. 47
7.4. Financial Statements, Certificates and
Information. 47
7.5. Corporate Existence and Conduct of
Business. 48
7.6. Maintenance of Properties. 49
7.7. Insurance. 49
7.8. Taxes. 49
7.9. Inspection of Properties, Books and
Contracts. 50
7.10. Compliance with Laws, Contracts, Licenses
and Permits; Maintenance of Material Licenses and
Permits. 50
7.11. Environmental Indemnification. 51
7.12. Further Assurances. 51
7.13. Notice of Potential Claims or Litigation. 51
7.14. Notice of Certain Events Concerning
Insurance. 51
7.15. Notice of Default. 51
7.16. Use of Proceeds. 52
7.17. Certain Transactions. 52
7.18. Amendment to Note Purchase Agreement. 52
7.19. The Tylan Merger. 52
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. 53
8.1. Restrictions on Liens. 53
8.2. Restrictions on Investments. 55
8.3. Merger, Consolidation, and Disposition of
Assets. 55
8.4. Restricted Distributions and Redemptions. 56
8.5. Employee Benefit Plans. 57
9. FINANCIAL COVENANTS OF THE BORROWER. 58
9.1. Funded Debt to EBITDA Ratio. 58
9.2. Interest Coverage Ratio. 58
10. CONDITIONS TO EFFECTIVENESS. 58
10.1. Corporate Action. 58
10.2. Loan Documents, Etc. 59
10.3. Certified Copies of Charter Documents. 59
10.4. Incumbency Certificate. 59
10.5. Certificates of Insurance. 59
10.6. Opinions of Counsel. 59
10.7. Existing Debt. 59
10.8. Satisfactory Financial Condition. 59
10.9. Lien Searches. 60
10.10. Fees. 60
11. CONDITIONS TO LOANS. 60
11.1. Representations True. 60
11.2. Performance; No Event of Default. 60
11.3. No Legal Impediment. 60
11.4. Governmental Regulation. 61
11.5. Proceedings and Documents. 61
12. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF
COMMITMENT. 61
12.1. Events of Default and Acceleration. 61
12.2. Termination of Commitments. 64
12.3. Remedies. 64
13. SETOFF. 65
14. EXPENSES. 65
15. THE AGENTS. 66
15.1. Appointment, Powers and Immunities. 66
15.2. Actions By Administrative Agent. 67
15.3. Indemnification. 67
15.4. Reimbursement. 67
15.5. Documents. 68
15.6. Non-Reliance on Agents and Other Banks. 68
15.7. Resignation of Administrative Agent. 69
15.8. Action by the Banks, Consents, Amendments,
Waivers, Etc. 69
15.9. Holders of Notes. 70
15.10. Administrative Agent's Fee. 70
16. INDEMNIFICATION. 70
17. SURVIVAL OF COVENANTS, ETC. 71
18. ASSIGNMENT AND PARTICIPATION. 71
19. PARTIES IN INTEREST. 73
20. NOTICES, ETC. 73
21. MISCELLANEOUS. 73
22. CONSENTS, ETC. 74
23. PARI PASSU TREATMENT. 74
24. CONFIDENTIALITY. 74
25. WAIVER OF JURY TRIAL. 75
26. GOVERNING LAW. 75
27. SEVERABILITY. 76
28. FINAL AGREEMENT. 76
Exhibits
Exhibit A Form of Syndicated Note
Exhibit B Form of Competitive Bid Note
Exhibit C-1 Form of Syndicated Loan Request
Exhibit C-2 Form of Letter of Credit Request
Exhibit D Form of Compliance Certificate
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Competitive Bid Quote Request
Exhibit G Form of Invitation for Competitive Bid
Quotes
Exhibit H Form of Competitive Bid Quote
Exhibit I Form of Notice of Acceptance of
Competitive Bid Quote(s)
Schedules
Schedule 1 Banks; Commitment Percentages
Schedule 6.7 Litigation
Schedule 6.13(c) Guaranteed Pension Plans
Schedule 6.14 Environmental Compliance
Schedule 8.1(a) Existing Liens
Schedule 8.2(d) Existing Investments
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of the 22nd
day of January, 1997, by and among (a) MILLIPORE
CORPORATION, a Massachusetts corporation having its
principal place of business at 80 Ashby Road, Bedford, MA
01730-2271 (the "Borrower"), (b) THE FIRST NATIONAL BANK OF
BOSTON, a national banking association with its head office
at 100 Federal Street, Boston, Massachusetts 02110 ("FNBB"),
ABN AMRO BANK N.V., with its Boston branch at One Post
Office Square, Boston, Massachusetts 02109 ("ABN"), and the
other lending institutions which become parties hereto
(collectively with FNBB and ABN, the "Banks") and (c) THE
FIRST NATIONAL BANK OF BOSTON, as administrative agent for
the Banks (the "Administrative Agent") and ABN AMRO BANK
N.V., as documentation agent for the Banks (the
"Documentation Agent," and collectively with the
Administrative Agent, the "Agents").
DEFINITIONS AND RULES OF INTERPRETATION.
Definitions.
The following terms shall have the meanings set forth
in this 1 or elsewhere in the provisions of this Agreement
referred to below:
Absolute Competitive Bid Loan(s). See 4.3(a).
Accountants. See 7.4(a).
Administrative Agent. See Preamble.
Affected Bank. See 5.12.
Agents. See Preamble.
Agreement. This Revolving Credit Agreement, including
the Schedules and Exhibits hereto, as from time to time
amended and supplemented in accordance with the terms
hereof.
Amicon. Amicon, a recently acquired business of the
Borrower.
Amicon Acquisition. The acquisition of the Amicon
business from W.R. Grace & Co. - Conn. pursuant to the
Purchase and Sale Agreement dated November 18, 1996
Applicable Eurodollar Rate. The applicable rate per
annum of interest on the Eurodollar Loans shall be the
Eurodollar Rate plus the Applicable Margin as set forth in
the Pricing Table.
Applicable Facility Rate. The applicable rate per
annum with respect to the Facility Fee shall be as set forth
in the Pricing Table.
Applicable L/C Rate. The applicable rate per annum on
the Maximum Drawing Amount shall be as set forth in the
Pricing Table.
Applicable Margin. The Applicable Margin on Eurodollar
Loans shall be as set forth in the Pricing Table.
Applicable Requirements. See 7.10.
Assignment and Acceptance. See 18.
Balance Sheet Date. December 31, 1995.
Banks. See Preamble.
Base Rate. The higher of (a) the annual rate of
interest announced from time to time by the Administrative
Agent at its Head Office as its "base rate" (it being
understood that such rate is a reference rate and not
necessarily the lowest rate of interest charged by the
Administrative Agent) or (b) one-half percent (0.50%) above
the Overnight Federal Funds Effective Rate.
Base Rate Loans. Syndicated Loans bearing interest
calculated by reference to the Base Rate.
Borrower. See Preamble.
Bridge Loan. The Bridge Loan Agreement dated as of
December 31, 1996, by and between the Borrower and FNBB.
Business Day. Any day, other than a Saturday, Sunday
or any day on which banking institutions in either Boston,
Massachusetts or New York, New York are authorized by law to
close, and, when used in connection with a Eurodollar Loan,
a Eurodollar Business Day.
Capital Assets. Fixed assets, both tangible (such as
land, buildings, fixtures, machinery and equipment) and
intangible (such as patents, copyrights, trademarks,
franchises and good will); provided that Capital Assets
shall not include any item customarily charged directly to
expense or depreciated over a useful life of twelve (12)
months or less in accordance with generally accepted
accounting principles.
Capital Expenditures. Amounts paid or indebtedness
incurred by the Borrower or any of its Subsidiaries in
connection with the purchase or lease by the Borrower or any
of its Subsidiaries of Capital Assets that would be required
to be capitalized and shown on the balance sheet of such
Person in accordance with generally accepted accounting
principles.
Capitalized Leases. Leases under which the Borrower or
any of its Subsidiaries (including Tylan and 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 GAAP.
CERCLA. See 6.14(a).
Certified or certified. With respect to the financial
statements of any Person, such statements as audited by a
firm of independent auditors, whose report expresses the
opinion, without qualification, that such financial
statements present fairly the financial position of such
Person.
CFO or the CAO. See 7.4(b).
Closing Date. The date on which the conditions
precedent set forth in 10 hereof are satisfied.
Code. The Internal Revenue Code of 1986, as amended
and in effect from time to time.
Commitment. With respect to each Bank, the amount
determined by multiplying such Bank's Commitment Percentage
by the aggregate amount of the Total Commitment specified in
2.1 hereof, as the same may be reduced from time to time.
Commitment Percentage. With respect to each Bank, the
percentage set forth on Schedule 1.
Competitive Bid Loan(s). A borrowing hereunder
consisting of one or more loans made by any of the
participating Banks whose offer to make a Competitive Bid
Loan as part of such borrowing has been accepted by the
Borrower under the auction bidding procedure described in 4
hereof.
Competitive Bid Margin. See 4.5(b)(iv).
Competitive Bid Notes. See 4.2(a).
Competitive Bid Quote. An offer by a Bank to make a
Competitive Bid Loan in accordance with 4.5 hereof.
Competitive Bid Quote Request. See 4.3.
Competitive Bid Rate. See 4.5(b)(v).
Compliance Certificate. See 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 GAAP.
Consolidated Earnings Before Interest, Taxes,
Depreciation and Amortization or EBITDA. For any period,
Consolidated Net Income (or Deficit) plus (a) Consolidated
Total Interest Expense, (b) income taxes, (c) depreciation
expense, (d) amortization expense, (e) non-cash expenses,
not to exceed $70,000,000, in connection with the Amicon
Acquisition taken as a special charge in the quarter ending
December 31, 1996, (f) non-cash expenses, not to exceed
$120,000,000, in connection with the Tylan Tender Offer or
Tylan Merger which will be taken as a special charge in the
quarter ending March 31, 1997, and (g) other non-recurring
charges in connection with the Amicon Acquisition and the
Tylan Merger, not to exceed $25,000,000 in the aggregate,
which will be taken as a special charge in the quarter
ending March 31, 1997, to the extent that each was deducted
in determining Consolidated Net Income (or Deficit),
provided that, for purposes of calculating the financial
covenants pursuant to 9, the portion of EBITDA derived from
Subsidiaries acquired since the date of the most recent
financial statements delivered to the Banks pursuant to 7.4
hereof shall be included in the calculation of EBITDA if (i)
the financial statements of such acquired Subsidiaries have
been audited for the period sought to be included by an
independent accounting firm satisfactory to the
Administrative Agent or (ii) the Administrative Agent
consents to such inclusion, such consent not to be
unreasonably withheld.
Consolidated Net Income (or Deficit). The consolidated
net income (or deficit) of the Borrower and its Subsidiaries
on a consolidated basis, after deduction of all expenses,
taxes, and other proper charges, determined in accordance
with GAAP.
Consolidated Net Worth. The excess of Consolidated
Total Assets over Consolidated Total Liabilities, less, to
the extent otherwise includable in the computations of
Consolidated Net Worth, any subscriptions receivable.
Consolidated Tangible Assets. All assets of the
Borrower and its Subsidiaries determined on a consolidated
basis in accordance with GAAP, less the sum of:
(a) the total book value of all assets of the
Borrower and its Subsidiaries properly classified as
intangible assets under generally accepted accounting
principles, including such items as goodwill, the
purchase price of acquired assets in excess of the fair
market value thereof, trademarks, trade names, service
marks, customer lists, brand names, copyrights, patents
and licenses, and rights with respect to the foregoing;
plus
(b) 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.
Consolidated Total Assets. All assets of the Borrower
and its Subsidiaries determined on a consolidated basis in
accordance with generally accepted accounting principles.
Consolidated Total Interest Expense. For any period,
the aggregate amount of interest expense required by GAAP to
be paid or accrued during such period on all Indebtedness of
the Borrower and its Subsidiaries outstanding during all or
any part of such period, including capitalized interest
expense for such period.
Consolidated Total Liabilities. All liabilities of the
Borrower and its Subsidiaries determined on a consolidated
basis in accordance with generally accepted accounting
principles and all Indebtedness of the Borrower and its
Subsidiaries, whether or not so classified.
Default. See 12.
Defaulting Bank. See 5.12.
Disposal. See "Release."
Distribution. The declaration or payment of any
dividend or distribution on or in respect of any shares of
any class of capital stock, any partnership interests or any
membership interests of any Person, other than dividends or
other distributions payable solely in shares of common
stock, partnership interests or membership units of such
Person, as the case may be; the purchase, redemption, or
other retirement of any shares of any class of capital
stock, partnership interests or membership units of such
Person, directly or indirectly through a Subsidiary or
otherwise; the return of equity capital by any Person to its
shareholders, partners or members as such; or any other
distribution on or in respect of any shares of any class of
capital stock, partnership interest or membership unit of
such Person.
Documentation Agent. See Preamble.
Dollars or $. Dollars in lawful currency of the United
States of America.
Drawdown Date. The date on which any Loan is made or
is to be made.
EBITDA. See definition for Consolidated Earnings
Before Interest, Taxes, Depreciation and Amortization.
Eligible Foreign Bank. (a) Any commercial bank
organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and
Development (the "OECD"), or a political subdivision of any
such country, provided that such bank is acting through a
branch or agency located in the country in which it is
organized or another country which is also a member of the
OECD; or (b) the central bank of any country which is a
member of the OECD.
Employee Benefit Plan. Any employee benefit plan
within the meaning of 3(3) of ERISA maintained or
contributed to by the Borrower, any of its Subsidiaries, or
any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. See 6.14(a).
EPA. See 6.14(b).
ERISA. The Employee Retirement Income Security Act of
1974, as amended and in effect from time to time.
ERISA Affiliate. Any Person which is treated as a
single employer with the Borrower or any of its Subsidiaries
under 414 of the Code.
ERISA Reportable Event. A reportable event with
respect to a Guaranteed Pension Plan within the meaning of
4043 of ERISA and the regulations promulgated thereunder as
to which the requirement of notice has not been waived.
Eurocurrency Reserve Rate. For any day with respect to
a Eurodollar Loan, the maximum rate (expressed as a decimal)
at which the Administrative Agent 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.
Eurodollar 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
Administrative Agent in its sole discretion acting in good
faith.
Eurodollar Interest Determination Date. For any
Interest Period, the date two (2) Eurodollar Business Days
prior to the first day of such Interest Period.
Eurodollar Loans. Syndicated Loans bearing interest
calculated by reference to the Eurodollar Rate.
Eurodollar Offered Rate. The rate per annum at which
deposits of Dollars are offered to the Administrative Agent
by prime banks in whatever Eurodollar interbank market may
be selected by the Administrative Agent, in its sole
discretion, acting in good faith, at or about 11:00 a.m.
local time in such interbank market, on the Eurodollar
Interest Determination Date for a period equal to the period
of such Interest Period in an amount substantially equal to
the principal amount requested to be loaned at or converted
to a rate based on the Eurodollar Rate.
Eurodollar Rate. With respect to Syndicated Loans, the
rate per annum, rounded upwards to the nearest 1/16 of 1%,
determined by the Administrative Agent with respect to an
Interest Period, in accordance with the following formula:
Eurodollar Rate = Eurodollar Offered Rate
1-Reserve Rate
Event of Default. See 12.
Facility Fee. See 2.2.
Funded Debt. Consolidated Indebtedness of the Borrower
and its Subsidiaries for borrowed money and purchase money
Indebtedness, and guarantees of such debt, recorded on the
Consolidated balance sheet, including the amount of any
Indebtedness for Capitalized Leases which corresponds to
principal and for Permitted Receivables Transactions
determined on a consolidated basis in accordance with GAAP.
generally accepted accounting principles, or GAAP. (i)
When used in 9, whether directly or indirectly through
reference to a capitalized term used therein, means (A)
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 (B) 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 (ii) when used in
general, other than as provided above, means principles that
are (A) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its
predecessors, as in effect from time to time, and (B)
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 with respect to the use of such principles (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 3(2) of ERISA maintained or
contributed to by the Borrower, its Subsidiaries 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.
Hazardous Substances. See 6.14(b).
Head Office. The Administrative Agent's head office
located at 100 Federal Street, Boston, MA 02110 or at such
other location as the Administrative Agent may designate
from time to time.
Income Taxes. See 5.5(a).
Indebtedness. All obligations, contingent and
otherwise, that in accordance with generally accepted
accounting principles should be classified upon the
obligor's balance sheet as liabilities, or to which
reference should be made by footnotes thereto, including in
any event and whether or not so classified: (i) all debt
and similar monetary obligations, whether direct or
indirect; (ii) all liabilities secured by any mortgage,
pledge, security interest, lien, charge, or other
encumbrance existing on property owned or acquired subject
thereto, whether or not the liability secured thereby shall
have been assumed; and (iii) all guarantees, endorsements
and other contingent obligations whether direct or indirect
in respect of indebtedness of others, including any
obligation to supply funds to or in any manner to invest in,
directly or indirectly, the debtor, to purchase
indebtedness, or to assure the owner of indebtedness against
loss, through an agreement to purchase goods, supplies, or
services for the purpose of enabling the debtor to make
payment of the indebtedness held by such owner or otherwise,
and the obligations to reimburse the issuer in respect of
any letters of credit.
Interest Period. With respect to each Loan (a)
initially, the period commencing on the Drawdown Date of
such Loan and ending on the last day of one of the periods
set forth below, as selected by the Borrower in accordance
with this Agreement (i) for any Base Rate Loan, the last day
of the quarter (or shorter specified time); (ii) for any
Eurodollar Loan, 1, 2, 3, or 6 months; (iii) for any
Absolute Competitive Bid Loan, from 7 through 180 days; and
(iv) for any LIBOR Competitive Bid Loan, 1, 2, 3, 4, 5, or 6
months; and (b) thereafter, each period commencing on the
last day of the next preceding Interest Period applicable to
such Loan and ending on the last day of one of the periods
set forth above, as selected by the Borrower in accordance
with this Agreement; provided that any Interest Period which
would otherwise end on a day which is not a Business Day
shall be deemed to end on the next succeeding Business Day;
provided further that for any Interest Period for any
Eurodollar Loan or LIBOR Competitive Bid Loan if such next
succeeding Business Day falls in the next succeeding
calendar month, it shall be deemed to end on the next
preceding Business Day; and provided further that no
Interest Period shall extend beyond the Maturity Date.
Investments. All expenditures made and all liabilities
incurred (contingently or otherwise) for the acquisition of
stock or Indebtedness of, or for loans, advances, capital
contributions or transfers of property to, or in respect of
any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In
determining the aggregate amount of Investments outstanding
at any particular time: (i) the amount of any Investment
represented by a guaranty shall be taken at not less than
the principal amount of the obligations guaranteed and still
outstanding; (ii) there shall be included as an Investment
all interest accrued with respect to Indebtedness
constituting an Investment unless and until such interest is
paid; (iii) 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);
(iv) there shall not be deducted in respect of any
Investment any amounts received as earnings on such
Investment, whether as dividends, interest or otherwise,
except that accrued interest included as provided in the
foregoing clause (ii) may be deducted when paid; and
(v) there shall not be deducted from the aggregate amount of
Investments any decrease in the value thereof.
Invitation for Competitive Bid Quotes. See 4.3(b).
Issuance Fee. See 3.5.
Letter of Credit Applications. Letter of Credit
Applications in such form as may be agreed upon by the
Borrower and the Administrative Agent from time to time
which are entered into pursuant to 3 hereof as such Letter
of Credit Applications are amended, varied or supplemented
from time to time; provided, however, in the event of any
conflict or inconsistency between the terms of any Letter of
Credit Application and this Agreement, the terms of this
Agreement shall control.
Letter of Credit Fee. See 3.5.
Letter of Credit Participation. See 3.1(b).
Letter of Credit Request. See 3.1(a).
Letters of Credit. Standby Letters of Credit issued or
to be issued by the Administrative Agent under 3 hereof for
the account of the Borrower.
LIBOR Competitive Bid Loan(s). See 4.3(a).
LIBOR Rate. For any Interest Period with respect to a
LIBOR Competitive Bid Loan, (a) the rate of interest equal
to the rate determined by the Administrative Agent 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) two (2) Eurodollar Business Days prior to
the first day of such Interest Period, or (b) if such rate
is not shown at such place, the rate of interest equal to
(i) the arithmetic average of the rates per annum for each
Agent at which such Agent's Eurodollar Lending Office is
offered Dollar deposits two (2) Eurodollar Business Days
prior to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar operations
of such Eurodollar Lending Office are customarily conducted,
for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount
comparable to the amount of the Eurodollar Rate Loan of such
Agent to which such Interest Period applies, divided by (ii)
a number equal to 1.00 minus the Eurocurrency Reserve Rate,
if applicable (rounded upwards to the nearest 1/16 of one
percent).
Loan Documents. This Agreement, the Notes, the Letter
of Credit Applications, the Letters of Credit, and any
documents, instruments or agreements executed in connection
with any of the foregoing, each as amended, modified,
supplemented, or replaced from time to time.
Loans. Collectively, the Syndicated Loans to be made
by the Banks to the Borrower pursuant to 2 and the
Competitive Bid Loans made by Banks selected pursuant to 4.
Majority Banks. The Banks holding fifty-one percent
(51%) of the Total Commitment; provided that in the event
that the Total Commitment has been terminated, the Majority
Banks shall be the Banks holding fifty-one percent (51%) of
the outstanding principal amount of the Loans on such date.
Maturity Date. January 22, 2002.
Maximum Drawing Amount. The maximum aggregate amount
from time to time that the beneficiaries may draw under
outstanding Letters of Credit.
MCTG. MCTG Acquisition Corp., a Delaware corporation
and a wholly owned Subsidiary of the Borrower.
Moody's. Moody's Investors Service, Inc.
Multiemployer Plan. Any multiemployer plan within the
meaning of 3(37) of ERISA maintained or contributed to by
the Borrower, any Subsidiary, or any ERISA Affiliate.
New Lending Office. See 5.1(d).
Non-U.S. Bank. See 5.1(c).
Note Purchase Agreement. That certain note purchase
and exchange agreement, dated March 3, 1994, as amended and
in effect from time to time, between the Borrower and
Metropolitan Life Insurance Company.
Notes. The Competitive Bid Notes and the Syndicated
Notes.
Notice of Acceptance of Competitive Bid Quote(s). See
4.7.
Obligations. All indebtedness, obligations and
liabilities of the Borrower to any of the Banks and the
Administrative Agent arising or incurred under this
Agreement or any of the other Loan Documents or in respect
of any of the Loans made or Reimbursement Obligations
incurred or the Letters of Credit, the Notes, or any other
instrument at any time evidencing any thereof, individually
or collectively, existing on the date of this 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.
Overnight Federal Funds Effective Rate. The overnight
federal funds effective rate as published by the Board of
Governors of the Federal Reserve System, as in effect from
time to time.
PBGC. The Pension Benefit Guaranty Corporation created
by 4002 of ERISA and any successor entity or entities
having similar responsibilities.
Permitted Investments. See 8.2.
Permitted Liens. See 8.1.
Permitted Receivables Transaction. Any sale or sales
of, and/or securitization of, any accounts receivable of the
Borrower and/or any of its Subsidiaries (the "Receivables")
pursuant to which the Borrower and its Subsidiaries realize
aggregate net proceeds of not more than $100,000,000 at any
one time outstanding, including, without limitation, any
revolving purchase(s) of Receivables where the maximum
aggregate uncollected purchase price (exclusive of any
deferred purchase price) for such Receivables at any time
outstanding does not exceed $100,000,000.
Person. Any individual, corporation, partnership,
limited liability company, trust, unincorporated
association, business, or other legal entity, and any
government or any governmental agency or political
subdivision thereof.
Pricing Table:
Applicabl Applicabl Applicabl
e e e
Level Senior Public Debt Facility L/C Rate Margin
Rating Rate (per (per
(per annum) annum)
annum)
1 BBB+/Baa1 0.1000% 0.1800% 0.1800%
2 BBB/Baa2 0.1250% 0.2250% 0.2250%
3 BBB-/Baa3 0.1500% 0.3000% 0.3000%
4 BB+/Ba1 0.2250% 0.4250% 0.4250%
5 BB/Ba2 or unrated 0.2500% 0.6500% 0.6500%
The applicable rates or margin charged on any day shall be
determined by the Senior Public Debt Rating in effect as of
that day.
RCRA. See 6.14(a).
Real Property. All real property heretofore, now, or
hereafter owned, operated, or leased by the Borrower or any
of its Subsidiaries.
Reference Period. The period of four consecutive
fiscal quarters (or such shorter period of one, two, or
three consecutive fiscal quarters as has elapsed since
December 31, 1996).
Reimbursement Obligation. The Borrower's obligation to
reimburse the Administrative Agent and the Banks on account
of any drawing under any Letter of Credit as provided in
3.2.
Release. Shall have the meaning specified in the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. 9601 et seq. ("CERCLA")
and the term "Disposal" (or "Disposed") shall have the
meaning specified in the Resource Conservation and Recovery
Act of 1976, 42 U.S.C. 6901 et seq. ("RCRA") and
regulations promulgated thereunder; provided that, in the
event either CERCLA or RCRA is amended so as to broaden the
meaning of any term defined thereby, such broader meaning
shall apply as of the effective date of such amendment and
provided further, to the extent that the laws of a state
wherein the property lies establish a meaning for "Release"
or "Disposal" which is broader than specified in either
CERCLA or RCRA, such broader meaning shall apply.
Replacement Bank. See 5.12.
Replacement Notice. See 5.12.
Reserve Rate. The highest rate, expressed as a
decimal, at which the Administrative Agent would be required
to maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any subsequent
or similar regulation relating to such reserve requirements)
against "Eurocurrency Liabilities" (as such term is defined
in Regulation D), or against any other category of
liabilities which might be incurred by the Administrative
Agent to fund Loans bearing interest based on the Eurodollar
Rate, if such liabilities were outstanding.
Senior Public Debt Rating. The rating of the
Borrower's public unsecured long-term senior debt, without
third party credit enhancement, issued by Moody's and/or
Standard & Poor's provided that in the event that both
Moody's and Standard & Poor's have issued such ratings, the
Senior Public Debt Rating will be the lower of the two
ratings.
Standard & Poor's. Standard & Poor's Ratings Group, a
division of McGraw Hill, Inc.
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 of the outstanding
capital stock or other interest entitled to vote generally.
Syndicated Loan Request. See 2.6.
Syndicated Loans. Loans advanced pursuant to 2.1.
Syndicated Notes. See 2.4.
Total Commitment. See 2.1.
Tylan. Tylan General, Inc., a Delaware corporation.
Tylan Merger. The merger of MCTG with and into Tylan
pursuant to the Tylan Merger Agreement, with Tylan being the
surviving corporation and a Subsidiary of the Borrower.
Tylan Merger Agreement. The Agreement and Plan of
Merger dated as of December 16, 1996 among Tylan, the
Borrower and MCTG.
Tylan Merger Date. The date as of which the
transactions contemplated by the Tylan Merger Agreement are
consummated.
Tylan Revolving Credit Agreement. The revolving credit
agreement between Tylan and Comerica.
Tylan Shares. See definition of Tylan Tender Offer.
Tylan Tender Offer. The Offer to Purchase, dated
December 20, 1996, made by MCTG, to purchase all of the
outstanding shares of common stock, together with all
associated Series A Junior Participating Preferred Stock
Purchase Rights of Tylan (collectively, the "Tylan Shares").
Rules of Interpretation.
(a) A reference to any document or agreement
(including this 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 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 capitalized but 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.
(h) Reference to a particular "" refers to that
section of this Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and
words of like import shall refer to this Agreement as a
whole and not to any particular section or subdivision
of this Agreement.
THE SYNDICATED FACILITY.
Commitment to Lend Syndicated Loans.
Subject to the terms and conditions set forth in this
Agreement, each of the Banks severally agrees to lend to the
Borrower and the Borrower may borrow, repay, and reborrow
from time to time between the Closing Date and the Maturity
Date, upon notice by the Borrower to the Administrative
Agent given in accordance with this 2, such Bank's
Commitment Percentage of the Syndicated Loans as are
requested by the Borrower; provided that the sum of the
outstanding principal amount of the Syndicated Loans and the
Maximum Drawing Amount of outstanding Letters of Credit
shall not exceed a maximum aggregate amount outstanding of
(i) $450,000,000, as such amount may be reduced pursuant to
2.3 hereof (the "Total Commitment") minus (ii) the
aggregate amount of Competitive Bid Loans outstanding at
such time. Each request for a Syndicated Loan or Letter of
Credit hereunder shall constitute a representation and
warranty by the Borrower that the conditions set forth in
10 and 11, as the case may be, have been satisfied on the
date of such request. Any unpaid Reimbursement Obligation
with respect to any Letter of Credit shall be a Base Rate
Loan hereunder.
Facility Fee.
The Borrower agrees to pay to the Administrative Agent
for the account of the Banks a fee (the "Facility Fee")
equal to the Applicable Facility Rate multiplied by the
Total Commitment for the number of days the facility is
outstanding. The Facility Fee shall be payable quarterly in
arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter commencing on
April 1, 1997 with a final payment on the Maturity Date (or
on the date of termination in full of the Total Commitment,
if earlier). The Facility Fee shall be distributed pro rata
among the Banks in accordance with each Bank's Commitment
Percentage.
Reduction of Total Commitment; Increase of Total
Commitment.
(a) The Borrower shall have the right at any time
and from time to time upon seven (7) Business Days'
prior written notice to the Administrative Agent to
reduce by $10,000,000 or larger multiples of $5,000,000
or terminate entirely the Total Commitment, whereupon
the Commitment of each Bank shall be reduced pro rata
in accordance with such Bank's Commitment Percentage of
the amount specified in such notice or, as the case may
be, terminated. The Administrative Agent will notify
the Banks promptly after receiving any notice delivered
by the Borrower pursuant to this 2.3. Notwithstanding
the foregoing, at no time may the Total Commitment be
reduced to an amount less than the sum of (i) the
Maximum Drawing Amount of all Letters of Credit and
(ii) all Loans then outstanding.
(b) No reduction or termination of the Total
Commitment once made may be revoked; the portion of the
Total Commitment reduced or terminated may not be
reinstated; and amounts in respect of such reduced or
terminated portion may not be reborrowed.
(c) In the event that the Note Purchase Agreement
is not amended on or before February 20, 1997, the
Borrower may request that the Total Commitment be
increased by $50,000,000 hereunder, which increase is
subject to the approval of the Administrative Agent;
provided, however, that in the event that such an
increase is approved, (i) any Bank which is a party to
this Agreement prior to such increase shall not be
required to increase its Commitment hereunder and
(ii) such Bank's Commitment Percentage shall be
correspondingly decreased to reflect such increase in
the Total Commitment.
The Syndicated Notes.
The Syndicated Loans shall be evidenced by separate
promissory notes of the Borrower in substantially the form
of Exhibit A hereto (each, a "Syndicated Note"), dated as of
the Closing Date (or syndication date, if later) and
completed with appropriate insertions. One Syndicated Note
shall be payable to the order of each Bank in an amount
equal to such Bank's Commitment, and shall represent the
obligation of the Borrower to pay such Bank such principal
amounts or, if less, the outstanding principal amount of all
Syndicated Loans made by such Bank, plus interest accrued
thereon, as set forth below. The Borrower irrevocably
authorizes each Bank to make or cause to be made, in
connection with a Drawdown Date of any Syndicated Loan or at
the time of receipt of any payment of principal on such
Bank's Syndicated Note, an appropriate notation on such
Bank's records or on the schedule attached to such Bank's
Syndicated Note or a continuation of such schedule attached
thereto reflecting the making of the Syndicated Loan or the
receipt of such payment (as the case may be) and may, prior
to any transfer of its Syndicated Note, endorse on the
reverse side thereof the outstanding principal amount of
Syndicated Loans evidenced thereby. The outstanding amount
of the Syndicated Loans set forth on such Bank's records
shall be prima facie evidence of the principal amount
thereof owing and unpaid to such Bank, but the failure to
record, or any error in so recording, any such amount shall
not limit or otherwise affect the obligations of the
Borrower hereunder or under the Syndicated Notes to make
payments of principal of or interest on any Syndicated Note
when due.
Interest on Syndicated Loans.
The outstanding principal amount of the Syndicated
Loans shall bear interest at the rate per annum equal to the
Base Rate on Base Rate Loans or the Applicable Eurodollar
Rate on Eurodollar Loans. Interest shall be payable (a)
quarterly in arrears on the first Business Day of the next
succeeding quarter, commencing April 1, 1997, on Base Rate
Loans, (b) on the last day of the applicable Interest
Period, and if such Interest Period is longer than three (3)
months, also on the last day of the third month following
the commencement of such Interest Period, on Eurodollar
Loans, and (c) on the Maturity Date for all Loans.
Requests for Syndicated Loans.
The Borrower shall give to the Administrative Agent
written notice in the form of Exhibit C-1 hereto (or
telephonic notice confirmed in writing or a facsimile in the
form of Exhibit C-1 hereto) of each Syndicated Loan
requested hereunder (a "Syndicated Loan Request") not later
than (a) 11:00 a.m. (Boston time) on the proposed Drawdown
Date of any Base Rate Loan, or (b) 11:00 a.m. (Boston time)
three (3) Eurodollar Business Days prior to the proposed
Drawdown Date of any Eurodollar Loan. Each such notice
shall specify (A) the principal amount of the Syndicated
Loan requested, (B) the proposed Drawdown Date of such
Syndicated Loan, (C) whether such Syndicated Loan requested
is to be a Base Rate Loan or a Eurodollar Loan and (D) the
Interest Period for such Syndicated Loan, if a Eurodollar
Loan. Each Syndicated Loan requested shall be in a minimum
amount of $10,000,000. Each such request shall specify the
principal amount of the Syndicated Loan requested and shall
reflect the Maximum Drawing Amount of all Letters of Credit
outstanding and the amount of Loans outstanding (including
Competitive Bid Loans). Syndicated Loan requests made
hereunder shall be irrevocable and binding on the Borrower,
and shall obligate the Borrower to accept the Syndicated
Loan requested from the Banks on the proposed Drawdown Date.
Each of the representations and warranties made by the
Borrower to the Banks or the Administrative Agent in this
Agreement or any other Loan Document shall be true and
correct in all material respects when made and shall, for
all purposes of this Agreement, be deemed to be repeated on
and as of the date of the submission of a Syndicated Loan
Request or Letter of Credit Request and on and as of the
Drawdown Date of such Syndicated Loan or the date of
issuance of such Letter of Credit (except to the extent
(i) of changes resulting from transactions contemplated or
permitted by this Agreement and the other Loan Documents,
(ii) of changes occurring in the ordinary course of business
that singly or in the aggregate are not materially adverse
to the business, assets or financial condition of the
Borrower and its Subsidiaries as a whole, or (iii) that such
representations and warranties expressly relate only to an
earlier date). The Administrative Agent shall promptly
notify each Bank of each Syndicated Loan Request received by
the Administrative Agent.
Election of Eurodollar Rate; Notice of Election;
Interest Periods; Minimum Amounts.
(a) At the Borrower's option, so long as no
Default or Event of Default has occurred and is then
continuing, the Borrower may (i) elect to convert any
Base Rate Loan or a portion thereof to a Eurodollar
Loan, (ii) at the time of any Syndicated Loan Request,
specify that such requested Syndicated Loan shall be a
Eurodollar Loan, or (iii) upon expiration of the
applicable Interest Period, elect to maintain an
existing Eurodollar Loan as such, provided that the
Borrower gives notice to the Administrative Agent
pursuant to 2.7(b) hereof. Upon determining any
Eurodollar Rate, the Administrative Agent shall
forthwith provide notice thereof to the Borrower and
each Bank, and each such notice to the Borrower shall
be considered prima facie correct and binding, absent
manifest error.
(b) Three (3) Eurodollar Business Days prior to
the making of any Eurodollar Loan or the conversion of
any Base Rate Loan to a Eurodollar Loan, or, in the
case of an outstanding Eurodollar Loan, the expiration
date of the applicable Interest Period, the Borrower
shall give written, telex or facsimile notice received
by the Administrative Agent not later than 11:00 a.m.
(Boston time) of its election pursuant to 2.7(a).
Each such notice delivered to the Administrative Agent
shall specify the aggregate principal amount of the
Syndicated Loans to be borrowed or maintained as or
converted to Eurodollar Loans and the requested
duration of the Interest Period that will be applicable
to such Eurodollar Loan, and shall be irrevocable and
binding upon the Borrower. If the Borrower shall fail
to give the Administrative Agent notice of its election
hereunder together with all of the other information
required by this 2.7(b) with respect to any Syndicated
Loan, whether at the end of an Interest Period or
otherwise, such Syndicated Loan shall be deemed a Base
Rate Loan. The Administrative Agent shall promptly
notify each Bank in writing (or by telephone confirmed
in writing or by facsimile) of such election.
(c) Notwithstanding anything herein to the
contrary, the Borrower may not specify an Interest
Period that would extend beyond the Maturity Date.
(d) No conversion of Syndicated Loans pursuant to
this 2.7 may result in Eurodollar Loans that are less
than $10,000,000. In no event shall the Borrower have
more than ten (10) different maturities of borrowings
of Eurodollar Loans outstanding at any time.
(e) Subject to the terms and conditions of 5.8
hereof, if any affected Bank demands compensation under
5.5(c) or (d) with respect to any Eurodollar Loan, the
Borrower may at any time, upon at least three (3)
Business Days' prior written notice to the
Administrative Agent elect to convert such Eurodollar
Loan into a Base Rate Loan (on which interest and
principal shall be payable contemporaneously with the
related Eurodollar Loans of the other Banks).
Thereafter, and until such time as the affected Bank
notifies the Borrower that the circumstances giving
rise to the demand for compensation under 5.5(c) or
(d) no longer exist, all requests for Eurodollar Loans
from such affected Bank shall be deemed to be requests
for Base Rate Loans, regardless of whether the Borrower
has requested a Eurodollar Loan from the other Banks.
Once the affected Bank notifies the Borrower that such
circumstances no longer exist, the Borrower may elect
that the principal amount of each such Bank's Loans
again bear interest as Eurodollar Loans beginning on
the first day of the next succeeding Interest Period
applicable to the related Eurodollar Loans of the other
Banks.
Funds for Syndicated Credit Loans.
Not later than 1:00 p.m. (Boston time) on the proposed
Drawdown Date of any Syndicated Loan, each of the Banks will
make available to the Administrative Agent, at its Head
Office, in immediately available funds, the amount of such
Bank's Commitment Percentage of the amount of the requested
Syndicated Loan. Upon receipt from each Bank of such amount,
and upon receipt of the documents required by 10 or 11, as
the case may be, and the satisfaction of the other
conditions set forth therein, to the extent applicable, the
Administrative Agent will make available to the Borrower the
aggregate amount of such Syndicated Loans made available to
the Administrative Agent by the Banks. The failure or
refusal of any Bank to make available to the Administrative
Agent at the aforesaid time and place on any Drawdown Date
the amount of its Commitment Percentage of the requested
Syndicated Loan shall not relieve any other Bank from its
several obligations hereunder to make available to the
Administrative Agent the amount of such Bank's Commitment
Percentage of any requested Syndicated Loan.
Maturity of the Syndicated Loans and Reimbursement
Obligations.
The Syndicated Loans shall be due and payable on the
Maturity Date. The Borrower promises to pay on the Maturity
Date all Syndicated Loans and all unpaid Reimbursement
Obligations outstanding on such date, together with any and
all accrued and unpaid interest thereon and any fees and
other amounts owing hereunder.
Optional Prepayments or Repayments of Syndicated
Loans.
Subject to the terms and conditions of 5.8, the
Borrower shall have the right, at its election, to repay or
prepay the outstanding amount of the Syndicated Loans, as a
whole or in part, at any time without penalty or premium.
The Borrower shall give the Administrative Agent, no later
than 11:00 a.m. (Boston time) one (1) Business Day prior to
the proposed date of prepayment or repayment, written notice
(or telephonic notice confirmed in writing or by facsimile)
of any proposed prepayment or repayment pursuant to this
2.10, specifying the proposed date of prepayment or
repayment of Loans and the principal amount to be paid. The
Administrative Agent shall promptly notify each Bank by
written notice (or telephonic notice confirmed in writing or
by facsimile) of such payment.
LETTERS OF CREDIT.
Letter of Credit Commitments.
(a) Subject to the terms and conditions hereof
and the receipt of a letter of credit request in
substantially the form of Exhibit C-2 hereto (a "Letter
of Credit Request") by the Administrative Agent
reflecting the Maximum Drawing Amount of all Letters of
Credit (including the requested Letter of Credit) and a
Letter of Credit Application, the Administrative Agent,
on behalf of the Banks and in reliance upon the
representations and warranties of the Borrower
contained herein and the agreement of the Banks
contained in 3.1(b) hereof, agrees to issue letters of
credit, in such form as may be requested from time to
time by the Borrower and agreed to by the
Administrative Agent; provided, however, that,
(i) after giving effect to such request, the aggregate
Maximum Drawing Amount of all letters of credit issued
at any time under this 3.1(a) (the "Letters of
Credit") shall not exceed the lesser of
(A) $50,000,000, or (B) the Total Commitment minus the
outstanding amount of the Loans, and (ii) no Letter of
Credit shall have an expiration date later than the
earlier of (x) twelve (12) months after the date of
issuance (which may incorporate automatic renewals for
periods of up to twelve (12) months), or (y) fourteen
(14) Business Days prior to the Maturity Date.
(b) Each Bank severally agrees that it shall be
absolutely liable, without regard to the occurrence of
any Default or Event of Default, the termination of the
Total Commitment pursuant to 12.2, or any other
condition precedent whatsoever, to the extent of such
Bank's Commitment Percentage thereof, to reimburse the
Administrative Agent on demand for the amount of each
draft paid by the Administrative Agent under each
Letter of Credit to the extent that such amount is not
reimbursed by the Borrower pursuant to 3.2 (such
agreement for a Bank being called herein the "Letter of
Credit Participation" of such Bank). Each Bank agrees
that its obligation to reimburse the Administrative
Agent pursuant to this 3.1(b) shall not be affected in
any way by any circumstance other than the gross
negligence or willful misconduct of the Administrative
Agent.
(c) Each such reimbursement payment made by a
Bank to the Administrative Agent shall be treated as
the purchase by such Bank of a participating interest
in the Borrower's Reimbursement Obligation under 3.2
in an amount equal to such payment. Each Bank shall
share in accordance with its participating interest in
any interest which accrues pursuant to 3.2.
Reimbursement Obligation of the Borrower.
In order to induce the Administrative Agent to issue,
extend and renew each Letter of Credit, the Borrower hereby
agrees to reimburse or pay to the Administrative Agent, with
respect to each Letter of Credit issued, extended or renewed
by the Administrative Agent hereunder, as follows:
(a) if any draft presented under any Letter of
Credit is honored by the Administrative Agent or the
Administrative Agent otherwise makes payment with
respect thereto, the sum of (i) the amount paid by the
Administrative Agent under or with respect to such
Letter of Credit, and (ii) the amount of any taxes,
fees, charges or other costs and expenses whatsoever
incurred by the Administrative Agent in connection with
any payment made by the Administrative Agent under, or
with respect to, such Letter of Credit, provided
however, if the Borrower does not reimburse the
Administrative Agent on the Drawdown Date, such amount
shall become automatically a Syndicated Loan which is a
Base Rate Loan advanced hereunder in an amount equal to
such sum; and
(b) upon the Maturity Date or the acceleration of
the Reimbursement Obligations with respect to all
Letters of Credit in accordance with 12, an amount
equal to the then Maximum Drawing Amount of all
outstanding Letters of Credit shall be paid by the
Borrower to the Administrative Agent to be held as cash
collateral for all Reimbursement Obligations.
Obligations Absolute.
The Borrower's obligations under this 3 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 Administrative
Agent, any Bank or any beneficiary of a Letter of Credit.
The Borrower further agrees with the Administrative Agent
and the Banks that the Administrative Agent and the Banks
(i) shall not be responsible for, and the Borrower's
Reimbursement Obligations under 3.2 shall not be affected
by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such
documents should appear on their face to conform to the
requirements of the Letter of Credit but in fact prove to be
in any or all respects invalid, fraudulent or forged (unless
due to the willful misconduct of the Administrative Agent or
any other Banks), or any dispute between or among the
Borrower and 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, and (ii) shall not
be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice,
however transmitted, in connection with any Letter of Credit
except to the extent of their own willful misconduct. The
Borrower agrees that any action taken or omitted by the
Administrative Agent or any Bank in good faith under or in
connection with each Letter of Credit and the related drafts
and documents shall be binding upon the Borrower and shall
not result in any liability on the part of the
Administrative Agent or any Bank (or their respective
affiliates) to the Borrower. Nothing herein shall
constitute a waiver by the Borrower of any of its rights
against any beneficiary of a Letter of Credit.
Reliance by the Administrative Agent.
To the extent not inconsistent with 3.3, the
Administrative Agent 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, facsimile, telex or
teletype message, statement, order or other document
believed by it in good faith 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
Administrative Agent.
Letter of Credit Fee.
The Borrower shall pay a fee (the "Letter of Credit
Fee") equal to the Applicable L/C Rate for the number of
days outstanding on the Maximum Drawing Amount of Letters of
Credit issued hereunder to the Administrative Agent for the
account of the Banks, to be shared pro-rata by each of the
Banks in accordance with their respective Commitment
Percentages. The Letter of Credit Fee shall be payable
quarterly in arrears on the first day of each calendar
quarter for the quarter just ended, commencing April 1,
1997, and on the Maturity Date. In addition, the Borrower
shall pay an issuing fee (the "Issuance Fee") equal to
0.125% per annum on the Maximum Drawing Amount of Letters of
Credit issued hereunder to the Administrative Agent for its
account, plus its customary issuance fee, payable in
accordance with customary practice. The Issuance Fee shall
be payable quarterly in arrears on the first day of each
calendar quarter for the quarter just ended, commencing
April 1, 1997, and on the Maturity Date.
COMPETITIVE BID LOANS.
The Competitive Bid Option.
In addition to the Syndicated Loans made pursuant to 2
hereof, the Borrower may request Competitive Bid Loans
pursuant to the terms of this 4. The Banks may, but shall
have no obligation to, make such offers and the Borrower
may, but shall have no obligation to, accept such offers in
the manner set forth in this 4. Notwithstanding any other
provision herein to the contrary, at no time shall the
aggregate outstanding principal amount of Competitive Bid
Loans outstanding at any time exceed the sum of the Total
Commitment minus the aggregate outstanding principal amount
of Syndicated Loans minus the Maximum Drawing Amount of
Letters of Credit outstanding at such time. No Bank's
funding of Competitive Bid Loans shall reduce such Bank's
obligation to lend its Commitment Percentage of the
available Total Commitment.
Competitive Bid Notes.
(a) The obligation of the Borrower to repay the
outstanding principal amount of any and all Competitive
Bid Loans, plus interest at the applicable Competitive
Bid Rate accrued thereon, shall be evidenced by the
promissory notes of the Borrower in substantially the
form of Exhibit B hereto (each, a "Competitive Bid
Note"), dated as of the Closing Date (or the
syndication date, if later) and completed with
appropriate insertions. One Competitive Bid Note shall
be payable to the order of each Bank in an amount equal
to $450,000,000, and representing the obligation of the
Borrower to pay such Bank such principal amounts or, if
less, the outstanding principal amount of any and all
Competitive Bid Loans made by such Bank, plus interest
at the applicable Competitive Bid Rate or Competitive
Bid Margin accrued thereon, as set forth herein.
(b) The Borrower irrevocably authorizes (i) each
Bank to make or cause to be made, in connection with a
Drawdown Date of any Competitive Bid Loan or at the
time of receipt of any payment of principal on such
Bank's Competitive Bid Note in the case of a
Competitive Bid Note, an appropriate notation on such
Bank's records or on the schedule attached to such
Bank's Competitive Bid Note or a continuation of such
schedule attached thereto, reflecting the making of the
Competitive Bid Loan or the receipt of such payment (as
the case may be) and may, prior to any transfer of a
Competitive Bid Note, endorse on the reverse side
thereof the outstanding principal amount of Competitive
Bid Loans evidenced thereby. The outstanding amount of
the Competitive Bid Loans set forth on such Bank's
records shall be prima facie evidence of the principal
amount thereof owing and unpaid to such Bank, but the
failure to record, or any error in so recording, any
such amount shall not limit or otherwise affect the
obligations of the Borrower hereunder to make payments
of principal of or interest on any Competitive Bid Loan
when due.
Competitive Bid Quote Request; Invitation for
Competitive Bid Quotes.
(a) When the Borrower wishes to request offers to
make Competitive Bid Loans under this 4, it shall
transmit to the Administrative Agent by telex or
facsimile a Competitive Bid Quote Request substantially
in the form of Exhibit F hereto (a "Competitive Bid
Quote Request") so as to be received no later than 1:00
p.m. (Boston time) (x) five (5) Eurodollar Business
Days prior to the requested Drawdown Date in the case
of a LIBOR Competitive Bid Loan (a "LIBOR Competitive
Bid Loan") or (y) one (1) Business Day prior to the
requested Drawdown Date in the case of an Absolute
Competitive Bid Loan (an "Absolute Competitive Bid
Loan"), specifying:
(i) the requested Drawdown Date (which must
be a Eurodollar Business Day in the case of a
LIBOR Competitive Bid Loan or a Business Day in
the case of an Absolute Competitive Bid Loan);
(ii) the aggregate amount of such Competitive
Bid Loans, which shall be $10,000,000 or larger
multiples of $1,000,000;
(iii) the duration of the Interest Period(s)
applicable thereto, subject to the provisions of
the definition of Interest Period; and
(iv) whether the Competitive Bid Quotes
requested are LIBOR Competitive Bid Loans or
Absolute Competitive Bid Loans.
The Borrower may request offers to make Competitive Bid
Loans for more than one Interest Period in a single
Competitive Bid Quote Request. No new Competitive Bid
Quote Request shall be given until the Borrower has
notified the Administrative Agent of its acceptance or
non-acceptance of the Competitive Bid Quotes relating
to any outstanding Competitive Bid Quote Request.
(b) Promptly upon receipt of a Competitive Bid
Quote Request and payment by the Borrower of a $2,000
auction fee to the Administrative Agent for its own
account, the Administrative Agent shall send to the
Banks by telecopy or facsimile transmission an
Invitation for Competitive Bid Quotes substantially in
the form of Exhibit G hereto ("Invitation for
Competitive Bid Quotes"), which shall constitute an
invitation by the Borrower to each Bank to submit
Competitive Bid Quotes in accordance with this 4.
Alternative Manner of Procedure.
If, after receipt by the Administrative Agent and each
of the Banks of a Competitive Bid Quote Request from the
Borrower in accordance with 4.3, the Administrative Agent
or any Bank shall be unable to complete any procedure of the
auction process described in 4.5 through 4.6 (inclusive)
due to the inability of such Person to transmit or receive
communications through the means specified therein, such
Person may rely on telephonic notice for the transmission or
receipt of such communications. In any case where such
Person shall rely on telephone transmission or receipt, any
communication made by telephone shall, as soon as possible
thereafter, be followed by written confirmation thereof.
Submission and Contents of Competitive Bid Quotes.
(a) Each Bank may, but shall be under no
obligation to, submit a Competitive Bid Quote
containing an offer or offers to make Competitive Bid
Loans in response to any Competitive Bid Quote Request.
Each Competitive Bid Quote must comply with the
requirements of this 4.5 and must be submitted to the
Administrative Agent by telex or facsimile transmission
at its offices as specified in or pursuant to 20 not
later than (x) 2:00 p.m. (Boston time) on the fourth
Eurodollar Business Day prior to the proposed Drawdown
Date, in the case of a LIBOR Competitive Bid Loan or
(y) 10:00 a.m. (Boston time) on the proposed Drawdown
Date, in the case of an Absolute Competitive Bid Loan,
provided that Competitive Bid Quotes may be submitted
by the Administrative Agent in its capacity as a Bank
only if it submits its Competitive Bid Quote to the
Borrower not later than (x) one hour prior to the
deadline for the other Banks, in the case of a LIBOR
Competitive Bid Loan or (y) 15 minutes prior to the
deadline for the other Banks, in the case of an
Absolute Competitive Bid Loan. Subject to the
provisions of 10 and 11 hereof, any Competitive Bid
Quote so made shall be irrevocable except with the
written consent of the Administrative Agent given on
the instructions of the Borrower.
(b) Each Competitive Bid Quote shall be in
substantially the form of Exhibit H hereto and shall in
any case specify:
(i) the proposed Drawdown Date;
(ii) the principal amount of the Competitive
Bid Loan for which each proposal is being made,
which principal amount (w) may be greater than or
less than the Commitment of the quoting Bank, (x)
must be $5,000,000 or larger multiples of
$1,000,000, (y) may not exceed the aggregate
principal amount of Competitive Bid Loans for
which offers were requested and (z) may be subject
to an aggregate limitation as to the principal
amount of Competitive Bid Loans for which offers
being made by such quoting Bank may be accepted;
(iii) the Interest Period(s) for which
Competitive Bid Quotes are being submitted;
(iv) in the case of a LIBOR Competitive Bid
Loan, the margin above or below the applicable
LIBOR Rate (the "Competitive Bid Margin") offered
for each such Competitive Bid Loan, expressed as a
percentage (specified to the nearest 1/10,000th of
1%) to be added to or subtracted from such LIBOR
Rate;
(v) in the case of an Absolute Competitive
Bid Loan, the rate of interest per annum
(specified to the nearest 1/10,000th of 1%) (the
"Competitive Bid Rate") offered for each such
Absolute Competitive Bid Loan; and
(vi) the identity of the quoting Bank.
A Competitive Bid Quote may include up to five (5)
separate offers by the quoting Bank with respect to
each Interest Period specified in the related
Invitation for Competitive Bid Quotes.
(c) Any Competitive Bid Quote shall be
disregarded if it:
(i) is not substantially in the form of
Exhibit H hereto;
(ii) contains qualifying, conditional or
similar language;
(iii) proposes terms other than or in
addition to those set forth in the applicable
Invitation for Competitive Bid Quotes; or
(iv) arrives after the time set forth in
4.5(a) hereof.
Notice to Borrower.
The Administrative Agent shall promptly notify the
Borrower of the terms (x) of any Competitive Bid Quote
submitted by a Bank that is in accordance with 4.5 and (y)
of any Competitive Bid Quote that amends, modifies or is
otherwise inconsistent with a previous Competitive Bid Quote
submitted by such Bank with respect to the same Competitive
Bid Quote Request. Any such subsequent Competitive Bid
Quote shall be disregarded by the Administrative Agent
unless such subsequent Competitive Bid Quote is submitted
solely to correct a manifest error in such former
Competitive Bid Quote. The Administrative Agent's notice to
the Borrower shall specify (A) the aggregate principal
amount of Competitive Bid Loans for which offers have been
received for each Interest Period specified in the related
Competitive Bid Quote Request, (B) the respective principal
amounts and Competitive Bid Margins or Competitive Bid
Rates, as the case may be, so offered, and the identity of
the respective Banks submitting such offers, and (C) if
applicable, limitations on the aggregate principal amount of
Competitive Bid Loans for which offers in any single
Competitive Bid Quote may be accepted.
Acceptance and Notice by Borrower and Administrative
Agent.
Not later than 11:00 a.m. (Boston time) on (x) the
third Eurodollar Business Day prior to the proposed Drawdown
Date, in the case of a LIBOR Competitive Bid Loan or (y) the
proposed Drawdown Date, in the case of an Absolute
Competitive Bid Loan, the Borrower shall notify the
Administrative Agent of its acceptance or non-acceptance of
each Competitive Bid Quote in substantially the form of
Exhibit I hereto ("Notice of Acceptance of Competitive Bid
Quote(s)"). The Borrower may accept any Competitive Bid
Quote in whole or in part; provided that:
(i) the aggregate principal amount of each
Competitive Bid Loan may not exceed the applicable
amount set forth in the related Competitive Bid Quote
Request;
(ii) acceptance of offers may only be made on the
basis of ascending Competitive Bid Margins or
Competitive Bid Rates, as the case may be, and
(iii) the Borrower may not accept any offer that
is described in subsection 4.5(c) or that otherwise
fails to comply with the requirements of this
Agreement.
The Administrative Agent shall promptly notify each Bank
which submitted a Competitive Bid Quote of the Borrower's
acceptance or non-acceptance thereof. At the request of any
Bank which submitted a Competitive Bid Quote and with the
consent of the Borrower, the Administrative Agent will
promptly notify all Banks which submitted Competitive Bid
Quotes of (a) the aggregate principal amount of, and (b) the
range of Competitive Bid Rates or Competitive Bid Margins
of, the accepted Competitive Bid Loans for each requested
Interest Period.
Allocation by Administrative Agent.
If offers are made by two or more Banks with the same
Competitive Bid Margin or Competitive Bid Rate, as the case
may be, for a greater aggregate principal amount than the
amount in respect of which offers are accepted for the
related Interest Period, the principal amount of Competitive
Bid Loans in respect of which such offers are accepted shall
be allocated by the Administrative Agent among such Banks as
nearly as possible (in such multiples of $1,000,000, as the
Administrative Agent may deem appropriate) in proportion to
the aggregate principal amounts of such offers.
Determination by the Administrative Agent of the amounts of
Competitive Bid Loans shall be conclusive in the absence of
manifest error.
Funding of Competitive Bid Loans.
If, on or prior to the Drawdown Date of any Competitive
Bid Loan, the Total Commitment has not terminated in full
and if, on such Drawdown Date, the applicable conditions of
10 and 11 hereof are satisfied, the Bank or Banks whose
offers the Borrower has accepted will fund each Competitive
Bid Loan so accepted. Such Bank or Banks will make such
Competitive Bid Loans, by crediting the Administrative Agent
for further credit to the Borrower's specified account with
the Administrative Agent, in immediately available funds not
later than 2:00 p.m. (Boston time) on such Drawdown Date.
Funding Losses.
If, after acceptance of any Competitive Bid Quote
pursuant to 4, the Borrower (i) fails to borrow any
Competitive Bid Loan so accepted on the date specified
therefor, or (ii) repays or prepays the outstanding amount
of the Competitive Bid Loan prior to the last day of the
Interest Period relating thereto, the Borrower shall
indemnify the Bank making such Competitive Bid Quote or
funding such Competitive Bid Loan against any loss or
expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such
Bank to fund or maintain such unborrowed Loans, including,
without limitation compensation as provided in 5.8.
Repayment of Competitive Bid Loans; Interest.
The principal of each Competitive Bid Loan shall become
absolutely due and payable by the Borrower on the last day
of the Interest Period relating thereto, and the Borrower
hereby absolutely and unconditionally promises to pay to the
Administrative Agent for the account of the relevant Banks
at or before 1:00 p.m. (Boston time) on the last day of the
Interest Periods relating thereto the principal amount of
all such Competitive Bid Loans, plus interest thereon at the
applicable Competitive Bid Rates or Competitive Bid Margins,
as the case may be. The Competitive Bid Loans shall bear
interest at the rate per annum specified in the applicable
Competitive Bid Quotes. Interest on the Competitive Bid
Loans shall be payable (a) on the last day of the applicable
Interest Periods, and if any such Interest Period is longer
than three (3) months, also on the last day of the third
month following the commencement of such Interest Period,
and (b) on the Maturity Date for all Loans. Subject to the
terms of this Agreement, the Borrower may make Competitive
Bid Quote Requests with respect to new borrowings of any
amounts so repaid prior to the Maturity Date.
PROVISIONS RELATING TO ALL LOANS AND LETTERS OF
CREDIT.
Payments.
(a) All payments of principal, interest,
Reimbursement Obligations, fees (other than the
Issuance Fee) and any other amounts due hereunder or
under any of the other Loan Documents shall be made to
the Administrative Agent, received at its Head Office
in immediately available funds by 11:00 a.m. (Boston
time) on any due date. If a payment is received by the
Administrative Agent from the Borrower at or before
1:00 p.m. (Boston time) on any Business Day, the
Administrative Agent shall on the same Business Day
transfer in immediately available funds to (1) each of
the Banks, their pro-rata portion of such payment in
accordance with their respective Commitment
Percentages, in the case of payments with respect to
Syndicated Loans, and (2) the appropriate Bank(s), in
the case of payments with respect to Competitive Bid
Loans. If such payment is received by the
Administrative Agent after 1:00 p.m. (Boston time) on
any Business Day, such transfer shall be made by the
Administrative Agent to the Banks on the next Business
Day. In the event that the Administrative Agent fails
to make such transfer to any Bank as set forth above,
the Administrative Agent shall pay to such Bank on
demand an amount equal to the product of (i) the
average, computed for the period referred to in clause
(iii) below, of the weighted average interest rate paid
by such Bank for federal funds acquired by such Bank
during each day included in such period, times (ii) the
amount (A) equal to such Bank's Commitment Percentage
of such payment in the case of payments with respect to
Syndicated Loans, or (B) of such payment to which such
Bank is entitled in the case of payments with respect
to Competitive Bid Loans, times (iii) a fraction, the
numerator of which is the number of days that elapse
from and including the date of payment to and including
the date on which the amount due to such Bank shall
become immediately available to such Bank, and the
denominator of which is 365.
(b) All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made
without setoff or counterclaim (and the Borrower hereby
expressly waives any such rights) 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 Administrative Agent for the
account of the Banks (or as the case may be, the
Administrative Agent) 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 Banks or the Administrative
Agent to receive the same net amount which the Banks or
the Administrative Agent would have received on such
due date had no such obligation been imposed upon the
Borrower. The Borrower will deliver promptly to the
Administrative Agent 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.
(c) Each Bank that is not incorporated or
organized under the laws of the United States of
America or a state thereof or the District of Columbia
(a "Non-U.S. Bank") agrees that, prior to the first
date on which any payment is due to it hereunder, it
will deliver to the Borrower and the Administrative
Agent two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 or successor
applicable form, as the case may be, certifying in each
case that such Non-U.S. Bank is entitled to receive
payments under this Agreement and the Notes payable to
it, without deduction or withholding of any United
States federal income taxes. Each Non-U.S. Bank that
so delivers a Form 1001 or 4224 pursuant to the
preceding sentence further undertakes to deliver to
each of the Borrower and the Administrative Agent two
further copies of Form 1001 or 4224 or successor
applicable form, or other manner of certification, as
the case may be, on or before the date that any such
letter or form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most
recent form previously delivered by it to the Borrower,
and such extensions or renewals thereof as may
reasonably be requested by the Borrower, certifying in
the case of a Form 1001 or 4224 that such Non-U.S. Bank
is entitled to receive payments under this Agreement
and the Notes without deduction or withholding of any
United States federal income taxes, unless in any such
case an event (including, without limitation, any
change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise
be required which renders all such forms inapplicable
or which would prevent such Non-U.S. Bank from duly
completing and delivering any such form with respect to
it and such Non-U.S. Bank advises the Borrower that it
is not capable of receiving payments without any
deduction or withholding of United States federal
income tax.
(d) The Borrower shall not be required to pay any
additional amounts to any Non-U.S. Bank in respect of
United States Federal withholding tax pursuant to
paragraph (b) above to the extent that (i) the
obligation to withhold amounts with respect to United
States Federal withholding tax existed on the date such
Non-U.S. Bank became a party to this Credit Agreement
or, with respect to payments to a different lending
office designated by the Non-U.S. Bank as its
applicable lending office (a "New Lending Office"), the
date such Non-U.S. Bank designated such New Lending
Office with respect to a Loan; provided, however, that
this clause (i) shall not apply to any transferee or
New Lending Office as a result of an assignment,
transfer or designation made at the request of the
Borrower; and provided further, however, that this
clause (i) shall not apply to the extent the indemnity
payment or additional amounts any transferee, or Bank
through a New Lending Office, would be entitled to
receive without regard to this clause (i) do not exceed
the indemnity payment or additional amounts that the
Person making the assignment or transfer to such
transferee, or Bank making the designation of such New
Lending Office, would have been entitled to receive in
the absence of such assignment, transfer or
designation; or (ii) the obligation to pay such
additional amounts would not have arisen but for a
failure by such Non-U.S. Bank to comply with the
provisions of paragraph (c) above.
(e) Notwithstanding the foregoing, each Bank
agrees to use reasonable efforts (consistent with legal
and regulatory restrictions) to change its lending
office to avoid or to minimize any amounts otherwise
payable under paragraph (b) in each case solely if such
change can be made in a manner so that such Bank, in
its sole determination, suffers no legal, economic or
regulatory disadvantage.
Mandatory Repayments of the Loans.
If at any time the outstanding amount of the Loans plus
the Maximum Drawing Amount of all outstanding Letters of
Credit exceeds the Total Commitment whether by reduction of
the Total Commitment or otherwise, then the Borrower shall
immediately pay the amount of such excess to the
Administrative Agent (a) for application to the Loans (for
application first to Syndicated Loans, then to Competitive
Bid Loans, and subject to 5.8), or (b) if no Loans shall be
outstanding, to be held by the Administrative Agent for the
benefit of the Banks as collateral security for such excess
Maximum Drawing Amount; provided, however, that if the
amount of cash collateral held by the Administrative Agent
pursuant to this 5.2 exceeds the Maximum Drawing Amount
required to be collateralized from time to time, the
Administrative Agent shall return such excess to the
Borrower.
Computations.
All computations of interest, Letter of Credit Fees or
other fees shall be based on a 360-day year and paid for the
actual number of days elapsed, except that computations of
the Base Rate shall be based on a 365 day year and paid for
the actual number of days elapsed. 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; provided that for any Interest Period for any
Eurodollar Loan if such next succeeding Business Day falls
in the next succeeding calendar month or after the Maturity
Date, it shall be deemed to end on the next preceding
Business Day.
Illegality; Inability to Determine Eurodollar
Rate.
(a) Notwithstanding any other provision of this
Agreement, if the introduction of, any change in, or
any change in the interpretation of, any law or
regulation applicable to any Bank shall make it
unlawful for any Bank to make or maintain Eurodollar
Loans, such Bank shall forthwith give notice of such
circumstances to the Borrower and the Administrative
Agent and thereupon (i) the commitment of such Bank to
make Eurodollar Loans or convert Base Rate Loans to
Eurodollar Loans shall forthwith be suspended and (ii)
such Bank's outstanding Eurodollar Loans, if any, shall
be converted automatically to Base Rate Loans on the
last day of each Interest Period applicable to such
Eurodollar Loans or such earlier date as may be
required by law. The Borrower hereby agrees promptly
to pay the Administrative Agent for the account of such
Bank, upon demand by such Bank, any additional amounts
necessary to compensate such Bank for any costs
incurred by such Bank in making any conversion in
accordance with this 5.4, including any interest or
fees payable by such Bank to lenders of funds obtained
by it in order to make or maintain its Eurodollar Loans
hereunder.
(b) In the event, prior to the commencement of any
Interest Period relating to any Eurodollar Loan, the
Administrative Agent shall determine or shall be
notified by the Majority Banks that adequate and
reasonable methods do not exist for ascertaining the
Eurodollar Rate that would otherwise be applicable to
any Eurodollar Loan during such Interest Period, the
Administrative Agent shall forthwith give notice of
such determination (which shall be conclusive and
binding on the Borrower and the Banks) to the Borrower
and the Banks. In such event (i) any request for
Eurodollar Loans hereunder or request to convert a Base
Rate Loan to a Eurodollar Loan shall be automatically
withdrawn and shall be deemed a request for a Base Rate
Loan, (ii) each Eurodollar Loan will automatically, on
the last day of the then current Interest Period
thereof, become a Base Rate Loan, and (iii) the
obligations of the Banks to make Eurodollar Loans shall
be suspended until the Administrative Agent or the
Majority Banks (as applicable) determine that the
circumstances giving rise to such suspension no longer
exist, whereupon the Administrative Agent, or the
Administrative Agent upon the instruction of the
Majority Banks, as the case may be, shall so notify the
Borrower and the Banks.
Additional Costs, Etc.
If any change in present applicable law or adoption of
any applicable law after the date hereof (including, in
either case, without limitation, 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 any Bank by any
central bank or other fiscal, monetary or other authority,
whether or not having the force of law) shall:
(a) subject such Bank to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any
nature with respect to this Agreement, the other Loan
Documents, such Bank's Commitment, or the Loans (other
than taxes based upon or measured by the income or
profits of such Bank imposed by the jurisdiction of its
incorporation or organization, or the location of its
lending office, hereinafter referred to as "Income
Taxes"); or
(b) materially change the basis of taxation
(except for changes in Income Taxes) of payments to
such Bank of the principal or of the interest on any
Loans or any other amounts payable to such Bank under
this Agreement or the other Loan Documents; or
(c) except as provided in 5.6 or as otherwise
reflected in the Base Rate, the Eurodollar Rate, or the
Competitive Bid Rate, impose or increase or render
applicable (other than to the extent specifically
provided for elsewhere in this 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
commitments of, an office of any Bank with respect to
this Agreement, the other Loan Documents, the
Commitment, or the Loans; or
(d) impose on such Bank any other conditions or
requirements with respect to this Agreement, the other
Loan Documents, the Loans, such Bank's Commitment, or
any class of loans or commitments of which any of the
Loans or such Bank's Commitment forms a part, and the
result of any of the foregoing is
(i) to increase the cost to such Bank of
making, funding, issuing, renewing, extending or
maintaining the Loans or such Bank's Commitment,
or issuing or participating in Letters of Credit;
(ii) to reduce the amount of principal,
interest or other amount payable to such Bank
hereunder on account of such Bank's Commitment or
the Loans;
(iii) to require such Bank to make any
payment or to forego any interest or other sum
payable hereunder, the amount of which payment or
foregone interest or other sum is calculated by
reference to the gross amount of any sum
receivable or deemed received by such Bank from
the Borrower hereunder,
then, and in each such case, the Borrower will,
upon demand made by such Bank at any time and from time
to time as often as the occasion therefore may arise
(which demand shall be accompanied by a statement
setting forth the basis of such demand which shall be
conclusive absent manifest error), pay such reasonable
additional amounts as will be sufficient to compensate
such Bank for such additional costs, reduction, payment
or foregone interest or other sum.
Capital Adequacy.
If any Bank shall have determined that, after the date
hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change in any
such law, rule, or regulation, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with
the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank
or comparable agency, has or would have the effect of
reducing the rate of return on capital of such Bank (or any
corporation controlling such Bank) as a consequence of such
Bank's obligations hereunder to a level below that which
such Bank (or any corporation controlling such Bank) could
have achieved but for such adoption, change, request or
directive (taking into consideration its policies with
respect to capital adequacy) by an amount deemed by such
Bank to be material, then from time to time, within 15 days
after demand by such Bank, the Borrower shall pay to such
Bank such additional amount or amounts as will, in such
Bank's reasonable determination, fairly compensate such Bank
(or any corporation controlling such Bank) for such
reduction. Each Bank shall allocate such cost increases
among its customers in good faith and on an equitable basis.
Certificate.
A certificate setting forth the additional amounts
payable pursuant to 5.4, 5.5 or 5.6 and a reasonable
explanation of such amounts which are due, submitted by any
Bank to the Borrower, shall be conclusive, absent manifest
error, that such amounts are due and owing.
Eurodollar and Competitive Bid Indemnity.
The Borrower agrees to indemnify each Bank and the
Administrative Agent and to hold them harmless from and
against any reasonable loss, cost or expense that any Bank
and the Administrative Agent may sustain or incur as a
consequence of (a) the default by the Borrower in payment of
the principal amount of or any interest on any Eurodollar
Loans or Competitive Bid Loans as and when due and payable,
including any such loss or expense arising from interest or
fees payable by any Bank or the Administrative Agent to
lenders of funds obtained by it in order to maintain its
Eurodollar Loans or Competitive Bid Loans, (b) the default
by the Borrower in making a borrowing of a Eurodollar Loan
or Competitive Bid Loan or conversion of a Eurodollar Loan
or a prepayment of a Eurodollar or Competitive Bid Loan
other than on an Interest Payment Date after the Borrower
has given (or is deemed to have given) a Syndicated Loan
Request, a notice pursuant to 2.7, a Notice of Acceptance
of Competitive Bid Quote(s), or a notice pursuant to 2.10,
as the case may be, and (c) the making of any payment of a
Eurodollar Loan or Competitive Bid Loan, or the making of
any conversion of any Eurodollar Loan to a Base Rate Loan on
a day that is not the last day of the applicable Interest
Period with respect thereto. Such loss or reasonable
expense shall include an amount equal to the excess, if any,
as reasonably determined by each Bank of (i) its cost of
obtaining the funds for (A) the Eurodollar Loan being paid,
prepaid, converted, not converted, or not borrowed, as the
case may be (based on the Eurodollar Rate), or (B) the
Competitive Bid Loan being paid, prepaid, or not borrowed,
as the case may be (based on the Competitive Bid Rate) for
the period from the date of such payment, prepayment,
conversion, or failure to borrow or convert, as the case
may be, to the last day of the Interest Period for such Loan
(or, in the case of a failure to borrow, the Interest Period
for the Loan which would have commenced on the date of such
failure to borrow) over (ii) the amount of interest (as
reasonably determined by such Bank) that would be realized
by such Bank in reemploying the funds so paid, prepaid,
converted, or not borrowed, converted, or prepaid for such
period or Interest Period, as the case may be, which
determinations shall be conclusive absent manifest error.
Interest on Overdue Amounts.
Overdue principal and (to the extent permitted by
applicable law) interest on the Loans and all other overdue
amounts payable hereunder or under any of the other Loan
Documents shall bear interest compounded monthly and payable
on demand at a rate per annum equal to the Base Rate plus 2%
until such amount shall be paid in full (after as well as
before judgment).
Interest Limitation.
Notwithstanding any other term of this Agreement or the
Notes, any other Loan Document or any other document
referred to herein or therein, the maximum amount of
interest which may be charged to or collected from any
person liable hereunder or under the Notes by any Bank shall
be absolutely limited to, and shall in no event exceed, the
maximum amount of interest which could lawfully be charged
or collected by such Bank under applicable laws (including,
to the extent applicable, the provisions of 5197 of the
Revised Statutes of the United States of America, as
amended, 12 U.S.C. 85, as amended).
Reasonable Efforts to Mitigate.
Each Bank agrees that as promptly as practicable after
it becomes aware of the occurrence of an event or the
existence of a condition that would cause it to be affected
under 5.4, 5.5 or 5.6, such Bank will give notice thereof
to the Borrower, with a copy to the Administrative Agent,
and, to the extent so requested by the Borrower and not
inconsistent with such Bank's internal policies, such Bank
shall use reasonable efforts and take such actions as are
reasonably appropriate if as a result thereof the additional
moneys which would otherwise be required to be paid to such
Bank pursuant to such subsections would be materially
reduced, or the illegality or other adverse circumstances
which would otherwise require a conversion of such Loans or
result in the inability to make such Loans pursuant to such
sections would cease to exist, and in each case if, as
determined by such Bank in its sole discretion, the taking
such actions would not adversely affect such Loans or such
Bank or otherwise be disadvantageous to such Bank.
Replacement of Banks.
If any Bank (an "Affected Bank") (i) makes demand upon
the Borrower for (or if Borrower is otherwise required to
pay) amounts pursuant to 5.5 or 5.6, (ii) is unable to
make or maintain Eurodollar Loans as a result of a condition
described in 5.4 or (iii) defaults in its obligation to
make Loans in accordance with the terms of this Agreement
(such Bank being referred to as a "Defaulting Bank"), the
Borrower may, within 90 days of receipt of such demand,
notice (or the occurrence of such other event causing the
Borrower to be required to pay such compensation or causing
5.4 to be applicable), or default, as the case may be, by
notice (a "Replacement Notice") in writing to the
Administrative Agent and such Affected Bank (A) request the
Affected Bank to cooperate with the Borrower in obtaining a
replacement bank satisfactory to the Administrative Agent
and the Borrower (the "Replacement Bank"); (B) request the
non-Affected Banks to acquire and assume all of the Affected
Bank's Loans and Commitment, as provided herein, but none of
such Banks shall be under an obligation to do so; or (C)
designate a Replacement Bank reasonably satisfactory to the
Administrative Agent. If any satisfactory Replacement Bank
shall be obtained, and/or any of the non-Affected Banks
shall agree to acquire and assume all of the Affected Bank's
Loans and Commitment, then such Affected Bank shall, so long
as no Event of Default shall have occurred and be
continuing, assign, in accordance with 18, all of its
Commitment, Loans, Notes and other rights and obligations
under this Agreement and all other Loan Documents to such
Replacement Bank or non-Affected Banks, as the case may be,
in exchange for payment of the principal amount so assigned
and all interest and fees accrued on the amount so assigned,
plus all other Obligations then due and payable to the
Affected Bank; provided, however, that (i) such assignment
shall be without recourse, representation or warranty and
shall be on terms and conditions reasonably satisfactory to
such Affected Bank and such Replacement Bank and/or non-
Affected Banks, as the case may be, and (ii) prior to any
such assignment, the Borrower shall have paid to such
Affected Bank all amounts properly demanded and unreimbursed
under 5.4, 5.5, 5.6 and 5.8. Upon the effective date of
such assignment, the Borrower shall issue replacement Notes
to such Replacement Bank and/or non-Affected Banks, as the
case may be, and such institution shall become a "Bank" for
all purposes under this Agreement and the other Loan
Documents.
Advances by Administrative Agent.
The Administrative Agent may (unless earlier notified
to the contrary by any Bank by 12:00 noon (Boston time) one
(1) Business Day prior to any Drawdown Date) assume that
each Bank has made available (or will before the end of such
Business Day make available) to the Administrative Agent the
amount of such Bank's Commitment Percentage with respect to
the Syndicated Loan (or, in the case of Competitive Bid
Loans, the amount of such Bank's accepted offers of
Competitive Bid Loans, if any) to be made on such Drawdown
Date, and the Administrative Agent may (but shall not be
required to), in reliance upon such assumption, make
available to the Borrower a corresponding amount. If any
Bank makes such amount available to the Administrative Agent
on a date after such Drawdown Date, such Bank shall pay the
Administrative Agent on demand an amount equal to the
product of (i) the average, computed for the period referred
to in clause (iii) below, of the weighted average annual
interest rate paid by the Administrative Agent for federal
funds acquired by the Administrative Agent during each day
included in such period times (ii) the amount equal to such
Bank's Commitment Percentage of such Syndicated Loan (or, in
the case of a Competitive Bid Loan, the amount of such
Bank's accepted offer of such Competitive Bid Loan, if any),
times (iii) a fraction, the numerator of which is the number
of days that elapse from and including such Drawdown Date to
but not including the date on which the amount equal to such
Bank's Commitment Percentage of such Syndicated Loan, or the
amount of such Bank's accepted offers of such Competitive
Bid Loan, shall become immediately available to the
Administrative Agent, and the denominator of which is 365.
A statement of the Administrative Agent submitted to such
Bank with respect to any amounts owing under this paragraph
shall be prima facie evidence of the amount due and owing to
the Administrative Agent by such Bank. If such amount is
not in fact made available to the Administrative Agent by
such Bank within three (3) Business Days of such Drawdown
Date, the Administrative Agent shall be entitled to debit
the Borrower's accounts to recover such amount from the
Borrower, with interest thereon at the applicable rate per
annum.
REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks that:
Corporate Authority.
(a) Incorporation; Good Standing. The Borrower
and each of its Subsidiaries (i) is a corporation duly
organized, validly existing and in good standing under
the laws of its respective jurisdiction of
incorporation, (ii) has all requisite corporate power
to own its property and conduct its business as now
conducted and as presently contemplated, and (iii) is
in good standing as a foreign corporation and is duly
authorized to do business in each jurisdiction in which
its property or business as presently conducted or
contemplated makes such qualification necessary, except
where a failure to be so qualified would not have a
material adverse effect on the business, assets or
financial condition of the Borrower and its
Subsidiaries as a whole.
(b) Authorization. The execution, delivery and
performance of the Loan Documents and the transactions
contemplated hereby and thereby (i) are within the
corporate authority of the Borrower, (ii) have been
duly authorized by all necessary corporate proceedings
on the part of the Borrower, (iii) 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 Subsidiary is subject or any
judgment, order, writ, injunction, license or permit
applicable to the Borrower or any Subsidiary so as to
materially adversely affect the assets, business or any
activity of the Borrower and its Subsidiaries as a
whole, and (iv) do not conflict with any provision of
the corporate charter or bylaws of the Borrower or any
Subsidiary or any agreement or other instrument binding
upon the Borrower or any of its Subsidiaries.
(c) Enforceability. The execution, delivery and
performance of the Loan Documents by the Borrower will
result in valid and legally binding obligations of the
Borrower 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.
Governmental Approvals.
The execution, delivery and performance of the Loan
Documents by the Borrower and the consummation by the
Borrower of the transactions contemplated hereby and thereby
do not require any approval or consent of, or filing with,
any governmental agency or authority other than those
already obtained and those required after the date hereof in
connection with the Borrower's and its Subsidiaries'
performance of their covenants contained in 7, 8 and 9
hereof.
Title to Properties; Leases.
The Borrower and its Subsidiaries own all of the assets
reflected in the consolidated balance sheet as at the
Balance Sheet Date or acquired since that date (except
property and assets operated under capital leases or sold or
otherwise disposed of in the ordinary course of business
since that date), subject to no mortgages, capitalized
leases, conditional sales agreements, title retention
agreements, liens or other encumbrances except Permitted
Liens.
Financial Statements; Solvency.
(a) There has been furnished to the Banks (i)
audited consolidated financial statements of the
Borrower and its Subsidiaries dated the Balance Sheet
Date, (ii) estimated pro forma financial statements of
the Borrower and its Subsidiaries, and Amicon, dated
January 11, 1997 and (iii) forecasted consolidated
financial statements taking into account the Tylan
Merger dated January 11, 1997. All said balance sheets
and statements of operations have been prepared in
accordance with GAAP (but, in the case of any of such
financial statements which are unaudited, only to the
extent GAAP is applicable to interim unaudited
reports), fairly present the financial condition of the
Borrower and its Subsidiaries or, to the best knowledge
of the Borrower after due inquiry, Tylan and its
Subsidiaries, as the case may be, on a consolidated
basis, as at the close of business on the dates thereof
and the results of operations for the periods then
ended, subject, in the case of unaudited interim
financial statements, to changes resulting from audit
and normal year-end adjustments and to the absence of
complete footnotes. There are no contingent
liabilities of the Borrower and its Subsidiaries, or of
Tylan and its Subsidiaries involving material amounts,
known to the officers of the Borrower, which have not
been disclosed in said balance sheets and the related
notes thereto or otherwise in writing to the Banks.
(b) The Borrower and its Subsidiaries on a
consolidated basis (both before and after giving effect
to the transactions contemplated by this Agreement
including the Tylan Tender Offer and the Tylan Merger)
are and will be solvent (i.e., they have assets having
a fair value in excess of the amount required to pay
their probable liabilities on their existing debts as
they become absolute and matured) and have, and expect
to have, the ability to pay their debts from time to
time incurred in connection therewith as such debts
mature.
No Material Changes, Etc.
Since the Balance Sheet Date, in the case of the
Borrower and its Subsidiaries, and since December 31, 1995,
in the case of Amicon, and, to the best knowledge of the
Borrower after due inquiry, since October 31, 1996, in the
case of Tylan and its Subsidiaries, there have occurred no
material adverse changes in the consolidated financial
condition, business or assets of the Borrower and its
Subsidiaries, or Tylan and its Subsidiaries, taken together,
as shown on or reflected in the consolidated balance sheets
of the Borrower and its Subsidiaries, or Tylan and its
Subsidiaries, as at the respective Balance Sheet Date or
October 31, 1996, as applicable, or the consolidated
statements of income for the period then ended other than
changes in the ordinary course of business which have not
had any material adverse effect either individually or in
the aggregate on the financial condition, business or assets
of the Borrower and its Subsidiaries, or Tylan and its
Subsidiaries, taken together. Since the Balance Sheet Date,
in the case of the Borrower and its Subsidiaries and, to the
best knowledge of the Borrower after due inquiry, since
October 31, 1996 in the case of Tylan and its Subsidiaries,
there have not been any Distributions (including
Distributions made by Tylan) other than as permitted by 8.4
hereof. The parties agree that any charges identified in
sections (e), (f), and (g) in the definition of EBITDA
related to the Amicon Acquisition and the Tylan Merger shall
not be deemed to be material adverse changes.
Franchises, Patents, Copyrights, Etc.
The Borrower and each of its Subsidiaries possesses 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 (other than those the absence
of which would not have a material adverse effect on the
business, operations or financial condition of the Borrower
and its Subsidiaries as a whole) without known conflict with
any rights of others other than a conflict which would not
have a material adverse effect on the financial condition,
business or assets of the Borrower and its Subsidiaries as a
whole.
Litigation.
(a) Except as set forth on Schedule 6.7, there
are no actions, suits, proceedings or investigations of
any kind pending or, to the knowledge of the Borrower
or any of its Subsidiaries, threatened against the
Borrower or any of its Subsidiaries before any court,
tribunal or administrative agency or board which,
either in any case or in the aggregate, could
reasonably be expected to have a material adverse
effect on the financial condition, business, or assets
of the Borrower and its Subsidiaries, considered as a
whole, or materially impair the right of the Borrower
and its Subsidiaries, considered as a whole, to carry
on business substantially as now conducted, or result
in any substantial liability not adequately covered by
insurance, or for which adequate reserves are not
maintained on the consolidated balance sheet or which
question the validity of any of the Loan Documents to
which the Borrower or any of its Subsidiaries is a
party, or any action taken or to be taken pursuant
hereto or thereto.
(b) 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 or any of its Subsidiaries, threatened,
before any court, tribunal or administrative agency or
board which contest the validity of the Tylan Tender
Offer or the Tylan Merger.
Compliance With Other Instruments, Laws, Etc.
Neither the Borrower nor any of its Subsidiaries is (a)
violating any provision of its charter documents or by-laws
or (b) any agreement or instrument by which any of them may
be subject or by which any of them or any of their
properties may be bound or any decree, order, judgment, or
any statute, license, rule or regulation, in a manner which
could (in the case of such agreements or such instruments)
reasonably be expected to result in the imposition of
substantial penalties or materially and adversely affect the
financial condition, business or assets of any of the
Borrower and its Subsidiaries, considered as a whole.
Tax Status.
The Borrower and its Subsidiaries have filed all
federal and state income and all other tax returns, reports
and declarations (or obtained extensions with respect
thereto) required by applicable law to be filed by them
(unless and only to the extent that the Borrower or such
Subsidiary has set aside on its books provisions reasonably
adequate for the payment of all unpaid and unreported taxes
as required by GAAP); and have paid all taxes and other
governmental assessments and charges (other than taxes,
assessments and other governmental charges imposed by
foreign jurisdictions which in the aggregate are not
material to the financial condition, business or assets of
the Borrower or such Subsidiary on an individual basis or of
the Borrower and Subsidiary on a consolidated basis) that
are material in amount, shown or determined to be due on
such returns, reports and declarations, except those being
contested in good faith; and, as required by GAAP, 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.
Except to the extent contested in the manner permitted in
the preceding sentence, there are no unpaid taxes in any
material amount claimed by the taxing authority of any
jurisdiction to be due and owing by the Borrower or any
Subsidiary, nor do the officers of the Borrower or any of
its Subsidiaries know of any basis for any such claim.
No Event of Default.
No Default or Event of Default has occurred and is
continuing.
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 any of them a "registered investment
company", or an "affiliated company" or a "principal
underwriter" of a "registered investment company", as such
terms are defined in the Investment Company Act of 1940, as
amended.
Absence of Financing Statements, Etc.
Except as permitted by 8.1 of this Agreement, there is
no effective financing statement, security agreement,
chattel mortgage, real estate mortgage or other documents
filed or recorded with any filing records, registry, or
other public office, which purports to cover, affect or give
notice of any present or possible future lien on, or
security interests in, any assets or property of the
Borrower or any of its Subsidiaries or right thereunder.
Employee Benefit Plans.
(a) In General. Each Employee Benefit 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.
(b) Terminability of Welfare Plans. Under each
Employee Benefit Plan which is an employee welfare
benefit plan within the meaning of 3(1) or 3(2)(B) of
ERISA, no benefits are due unless the event giving rise
to the benefit entitlement occurs prior to plan
termination (except as required by Title I, part 6 of
ERISA.) The Borrower, each of its Subsidiaries, or
ERISA Affiliate, as appropriate, 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 such Borrower, Subsidiary, or ERISA
Affiliate without material liability to any Person.
(c) Guaranteed Pension Plans. Except as
disclosed in Schedule 6.13(c), neither the Borrower nor
any of its Subsidiaries is a sponsor of, or contributor
to, a Guaranteed Pension Plan.
(d) Multiemployer Plans. None of the Borrower,
any of its Subsidiaries, 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 4201 of ERISA or as a result of a sale of
assets described in 4204 of ERISA. None of the
Borrower, any of its Subsidiaries, or any ERISA
Affiliate has been notified that any Multiemployer Plan
is in reorganization or is insolvent under and within
the meaning of 4241 or 4245 of ERISA or that any
Multiemployer Plan intends to terminate or has been
terminated under 4041A of ERISA.
Environmental Compliance.
Except as set forth on Schedule 6.14:
(a) None of the Borrower, its Subsidiaries, or
any operator of their properties, is in violation, or
alleged violation, of any judgment, decree, order, law,
permit, 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, waste transportation or disposal, or
the environment (the "Environmental Laws"), which
violation would have a material adverse effect on the
business, assets or financial condition of the Borrower
and its Subsidiaries on a consolidated basis.
(b) Except as described on Schedule 6.14, 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.
6903(5), any hazardous substances as defined by 42
U.S.C. 9601(14), any pollutant or contaminant as
defined by 42 U.S.C. 9601(33) and any toxic substance,
oil or hazardous materials or other chemicals or
substances regulated by any Environmental Laws,
excluding household hazardous waste ("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, legal or administrative
proceeding 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) (i) No portion of the Real Property or other
assets of the Borrower or its Subsidiaries has been
used for the handling, processing, storage or disposal
of Hazardous Substances except in accordance with
applicable Environmental Laws, except as would not
reasonably be expected to have a material adverse
effect on the business, assets or financial conditions
of the Borrower and the Subsidiaries on a consolidated
basis; and no underground tank or other underground
storage receptacle for Hazardous Substances is located
on such properties; (ii) in the course of any
activities conducted by the Borrower, its Subsidiaries,
or operators of the Real Property or other assets of
the Borrower and its Subsidiaries, no Hazardous
Substances have been generated or are being used on
such properties except in accordance with applicable
Environmental Laws, except for occurrences that would
not have a material adverse effect on the business,
assets or financial condition of the Borrower and
Subsidiaries on a consolidated basis; (iii) there have
been no unpermitted Releases or threatened Releases of
Hazardous Substances on, upon, into or from the Real
Property or other assets of the Borrower or its
Subsidiaries, which Releases would have a material
adverse effect on the value of such properties; (iv) to
the best of the Borrower's and its Subsidiaries'
knowledge, there have been no Releases on, upon, from
or into any real property in the vicinity of the Real
Property or other assets of the Borrower or its
Subsidiaries which, through soil or groundwater
contamination, may have come to be located on, and
which would reasonably be expected to have a material
adverse effect on the value of, such properties; and
(v) in addition, any Hazardous Substances that have
been generated on the Real Property or other assets of
the Borrower or its Subsidiaries have been transported
offsite only by carriers having an identification
number issued by the EPA, 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 and its
Subsidiaries' knowledge, operating in compliance with
such permits and applicable Environmental Laws.
(d) None of the Real Property or other assets of
the Borrower or its Subsidiaries or any of the stock
(or assets) being acquired with proceeds of Loans is or
shall be subject to any applicable environmental clean-
up responsibility law or environmental restrictive
transfer law or regulation, by virtue of the
transactions set forth herein and contemplated hereby.
True Copies of Charter and Other Documents.
The Borrower has furnished the Administrative Agent
copies, in each case true and complete as of the Closing
Date, of (a) all charter and other incorporation documents
(together with any amendments thereto) and (b) by-laws
(together with any amendments thereto).
Disclosure.
No representation or warranty made by the Borrower in
this Agreement or in any agreement, instrument, document,
certificate, statement or letter furnished to the Banks or
the Administrative Agent by or on behalf of or at the
request of the Borrower in connection with any of the
transactions contemplated by the Loan Documents contains any
untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements
contained therein not misleading in light of the
circumstances in which they are made.
Permits and Governmental Authority.
All permits (other than those the absence of which
would not have a material adverse effect on the business,
operations or financial condition of the Borrower and its
Subsidiaries as a whole) required for current operations of
the Borrower or any of its Subsidiaries have been obtained
and remain in full force and effect and are not subject to
any appeals or further proceedings or to any unsatisfied
conditions that may allow material modification or
revocation. Neither the Borrower nor any of its
Subsidiaries is in violation of any such permits, except for
any violation which would not have a material adverse effect
on the business, operations or financial condition of the
Borrower and its Subsidiaries as a whole.
Purchase of Tylan Shares.
As of the Closing Date, MCTG shall have received
tenders of at least 50% of the Tylan Shares in accordance
with the terms of the Tylan Tender Offer, which Tylan Shares
are to be purchased with the proceeds of the initial Loan
advanced hereunder.
AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower agrees that, so long as any Obligation or
any Letter of Credit is outstanding or the Banks have any
obligation to make Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit
hereunder or the Banks have any obligations to reimburse the
Administrative Agent for advances made under any Letter of
Credit, it shall, and shall cause its Subsidiaries to comply
with the following covenants:
Punctual Payment.
The Borrower will duly and punctually pay or cause to
be paid the principal and interest on the Loans, all
Reimbursement Obligations, fees and other amounts provided
for in this Agreement and the other Loan Documents, all in
accordance with the terms of this Agreement and such other
Loan Documents.
Maintenance of Office.
The Borrower will maintain its chief executive office
at Bedford, Massachusetts, or at such other place in the
United States of America as the Borrower shall designate
upon 30 days' prior written notice to the Administrative
Agent.
Records and Accounts.
The Borrower will, and will 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 GAAP and with the requirements of all
regulatory authorities and maintain adequate accounts and
reserves for all taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of
its properties, all other contingencies, and all other
proper reserves.
Financial Statements, Certificates and
Information.
The Borrower will deliver to the Banks:
(a) as soon as practicable, but, in any event not
later than 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, consolidated statements of cash flows, and the
related consolidated statements of operations, each
setting forth in comparative form the figures for the
previous fiscal year, all such consolidated financial
statements to be in reasonable detail, prepared, in
accordance with GAAP and, with respect to the
consolidated financial statements, certified by Coopers
& Lybrand LLP or by other independent auditors selected
by the Borrower and reasonably satisfactory to the
Banks (the "Accountants");
(b) as soon as practicable, but in any event not
later than 45 days after the end of each of the first
three (3) fiscal quarters of each fiscal year of the
Borrower, copies of the consolidated balance sheet and
statement of operations of the Borrower and its
Subsidiaries as at the end of such quarter, subject to
year end adjustments, and the related consolidated
statement of cash flows, all in reasonable detail and
prepared in accordance with GAAP (to the extent GAAP is
applicable to interim unaudited financial statements)
with a certification by the principal financial or
accounting officer of the Borrower (the "CFO or the
CAO") that the consolidated financial statements are
prepared in accordance with GAAP (to the extent GAAP is
applicable to interim unaudited financial statements)
and fairly present the consolidated financial condition
of the Borrower and its Subsidiaries on a consolidated
basis as at the close of business on the date thereof
and the results of operations for the period then
ended, it being understood that no such statement need
be accompanied by complete footnotes;
(c) simultaneously with the delivery of the
financial statements referred to in (a) and (b) above,
a certificate in the form of Exhibit D hereto (the
"Compliance Certificate") signed by the CFO or the CAO
or corporate treasurer, stating that the Borrower and
its Subsidiaries are in compliance with the covenants
contained in 7, 8 and 9 hereof as of the end of the
applicable period setting forth in reasonable detail
computations evidencing such compliance with respect to
the covenants contained in 9 hereof and that no
Default or Event of Default exists, provided that if
the Borrower shall at the time of issuance of such
Compliance Certificate or at any other time obtain
knowledge of any Default or Event of Default, the
Borrower shall include in such certificate or otherwise
deliver forthwith to the Banks a certificate specifying
the nature and period of existence thereof and what
action the Borrower proposes to take with respect
thereto;
(d) contemporaneously with, or promptly
following, the filing or mailing thereof, copies of all
material of a financial nature filed with the
Securities and Exchange Commission or sent to the
Borrower's stockholders generally;
(e) from time to time such other financial data
and other information as the Banks may reasonably
request; and
(f) on or prior to the effective date, notice of
any change in the Senior Public Debt Rating and the
time at which such rating shall become effective.
The Borrower hereby authorizes each Agent and Bank to
disclose any information obtained pursuant to this Agreement
to all appropriate governmental regulatory authorities where
required by law; provided, however that such Agent or such
Bank shall, to the extent allowable under law, notify the
Borrower at the time any such disclosure is made (except in
the case of disclosures made in the course of bank
regulatory reviews); and provided further that this
authorization shall not be deemed to be a waiver of any
rights to object to the disclosure by the Banks of any such
information which any Borrower has or may have under the
federal Right to Financial Privacy Act of 1978, as in effect
from time to time, except as to matters specifically
permitted therein.
Corporate Existence and Conduct of Business.
The Borrower will, and will cause each Subsidiary to do
or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence,
corporate rights and franchises; and effect and maintain its
foreign qualifications (except where the failure of the
Borrower or any Subsidiary to remain so qualified would not
materially adversely impair the financial condition,
business or assets of the Borrower and its Subsidiaries on a
consolidated basis), licensing, domestication or
authorization except as terminated by its Board of Directors
in the exercise of its reasonable judgment; provided that
such termination would not have a material adverse effect on
the financial condition, business or assets of the Borrower
and its Subsidiaries on a consolidated basis. The Borrower
will, and will cause each Subsidiary to, continue to engage
primarily in the businesses now conducted by it and in
related businesses.
Maintenance of Properties.
The Borrower will and will cause its Subsidiaries to,
cause all material properties used or useful in the conduct
of their businesses to be maintained and kept in good
condition, repair and working order (ordinary wear and tear
excepted) and supplied with all necessary equipment and will
cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as
in the judgment of the Borrower and its Subsidiaries may be
necessary so that the businesses carried on in connection
therewith may be properly and advantageously conducted at
all times; provided, however, that nothing in this section
shall prevent the Borrower or any of its Subsidiaries from
discontinuing the operation and maintenance of any of its
properties if such discontinuance is, in the judgment of
such Borrower or Subsidiary, desirable in the conduct of its
or their business and which does not in the aggregate
materially adversely affect the financial condition,
business or assets of the Borrower and its Subsidiaries on a
consolidated basis.
Insurance.
The Borrower will, and will cause its Subsidiaries to,
maintain with financially sound and reputable insurance
companies funds or underwriters' insurance of the kinds,
covering the risks (other than risks arising out of or in
any way connected with personal liability of any officers
and directors thereof) and in the relative proportionate
amounts usually carried by reasonable and prudent companies
conducting businesses similar to that of the Borrower and
its Subsidiaries, in amounts substantially similar to the
existing coverage policies maintained by the Borrower and
its Subsidiaries, copies of which have been provided to the
Administrative Agent. In addition, the Borrower will
furnish from time to time, upon the Banks' request, a
summary of the insurance coverage of the Borrower and its
Subsidiaries, which summary shall be in form and substance
satisfactory to the Banks and, if requested by any of the
Banks, will furnish to the Administrative Agent and such
Bank copies of the applicable policies.
Taxes.
The Borrower will, and will cause its Subsidiaries to,
duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all taxes, assessments
and other governmental charges (other than taxes,
assessments and other governmental charges imposed by
foreign jurisdictions which in the aggregate are not
material to the business, financial conditions, or assets of
the Borrower and its Subsidiaries on a consolidated basis)
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 claims for labor,
materials, or supplies, which if unpaid might by law become
a lien or charge upon any of its property; provided,
however, 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 and if such Borrower or Subsidiary shall have
set aside on its books adequate reserves with respect
thereto as required by GAAP; and provided, further, that
such Borrower or Subsidiary will pay all such taxes,
assessments, charges, levies or claims forthwith upon the
commencement of proceedings to foreclose any lien which may
have attached as security therefor.
Inspection of Properties, Books and Contracts.
The Borrower will, and will cause its Subsidiaries to,
permit the Agents or any Bank or any of their designated
representatives, upon reasonable notice, to visit and
inspect any of the properties of the Borrower and its
Subsidiaries, to examine the books of account of the
Borrower and its Subsidiaries, or contracts (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,
their officers, all at such times and intervals as may be
reasonably requested.
Compliance with Laws, Contracts, Licenses and
Permits; Maintenance of Material Licenses and Permits.
The Borrower will, and will cause each Subsidiary to,
(i) comply with the provisions of its charter documents and
by-laws; (ii) comply in all material respects with all
agreements and instruments by which it or any of its
properties may be bound; and (iii) comply with all
applicable laws and regulations, decrees, orders, judgments,
licenses and permits ("Applicable Requirements"), except
where noncompliance with such Applicable Requirements would
not reasonably be expected to have a material adverse effect
in the aggregate on the consolidated financial condition,
properties or businesses of the Borrower and its
Subsidiaries. If at any time 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 Subsidiary may
fulfill any of its obligations hereunder, the Borrower will
immediately take or cause to be taken all reasonable steps
within the power of such Borrower or Subsidiary to obtain
such authorization, consent, approval, permit or license and
furnish the Banks with evidence thereof.
Environmental Indemnification.
The Borrower covenants and agrees that it will
indemnify and hold the Banks and the Agents and their
respective affiliates, and each of the representatives,
agents and officers of each of the foregoing, harmless from
and against any and all claims, expense, damage, loss or
liability incurred by the Banks or the Agents (including all
costs of legal representation incurred by the Banks or the
Agents) relating to (a) any Release or threatened Release of
Hazardous Substances on the Real Property; (b) any violation
of any Environmental Laws or Applicable Requirements with
respect to conditions at the Real Property or other assets
of the Borrower or its Subsidiaries, or the operations
conducted thereon; or (c) the investigation or remediation
of offsite locations at which the Borrower, any of its
Subsidiaries, or their predecessors are alleged to have
directly or indirectly Disposed of Hazardous Substances. It
is expressly acknowledged by the Borrower that this covenant
of indemnification shall survive the payment of the Loans
and Reimbursement Obligations and shall inure to the benefit
of the Banks, the Agents and their affiliates, successors
and assigns.
Further Assurances.
The Borrower will cooperate with the Administrative
Agent and execute such further instruments and documents as
the Administrative Agent shall reasonably request to carry
out to the Banks' satisfaction the transactions contemplated
by this Agreement.
Notice of Potential Claims or Litigation.
The Borrower shall deliver to the Banks, within 30 days
of receipt thereof, written notice of the initiation of any
action, claim, complaint, or any other notice of dispute or
potential litigation wherein the potential liability would
be material under the regulations of the United States
Securities and Exchange Commission, together with a copy of
each such notice received by the Borrower or any of its
Subsidiaries.
Notice of Certain Events Concerning Insurance.
The Borrower will provide the Banks with written notice
as to any material cancellation or material adverse change
in any insurance of the Borrower or any of its Subsidiaries
within ten (10) Business Days after the Borrower's and any
of its Subsidiary's receipt of any notice (whether formal or
informal) of such material cancellation or material change
by any of its insurers.
Notice of Default.
The Borrower will promptly notify the Banks in writing
of the occurrence of any Default or Event of Default. If
any Person shall give any notice or take any other action in
respect of a claimed default (whether or not constituting an
Event of Default) under this Agreement or any other note,
evidence of indebtedness, indenture or other obligation
evidencing indebtedness in excess of $5,000,000 as to which
the Borrower or any of its Subsidiaries is a party or
obligor, whether as principal or surety, the Borrower shall
forthwith upon obtaining actual knowledge thereof give
written notice thereof to the Banks, describing the notice
of action and the nature of the claimed default.
Use of Proceeds.
The proceeds of the Loans shall be used for general
corporate and working capital purposes and in connection
with the Tylan Tender Offer, and to refinance existing debt
and letters of credit, including the Bridge Loan and the
Tylan Revolving Credit Agreement. No proceeds of the Loans
shall be used in any way that will violate Regulations G, T,
U or X of the Board of Governors of the Federal Reserve
System.
Certain Transactions.
Except as was disclosed in filings made by the
Borrower, Amicon, or Tylan under the Securities Exchange Act
of 1934 prior to Closing, and except for arm's length
transactions pursuant to which the Borrower or any
Subsidiary makes payments in the ordinary course of business
upon terms no less favorable than the Borrower or such
Subsidiary could obtain from third parties, none of the
officers, directors, or employees of the Borrower or any
Subsidiary are presently or shall be a party to any material
transaction with the Borrower or any Subsidiary (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 or any Subsidiary, 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.
Amendment to Note Purchase Agreement.
On or before February 20, 1997, the Note Purchase
Agreement will be amended, in form and substance
satisfactory to the Administrative Agent, such that the
incurrence of the Obligations hereunder shall not result in
a default or an event of default thereunder. Until such
amendment is effective or the Note Purchase Agreement is
terminated, the Borrower shall ensure that $50,000,000 of
the Total Commitment remains available.
The Tylan Merger.
As soon as practicable, but in no event later than
March 31, 1997, the Tylan Merger shall have been
successfully completed on terms no less favorable to the
Borrower than the terms set forth in the Tylan Merger
Agreement, and evidence thereof satisfactory to the
Administrative Agent, including, without limitation, an
opinion of general counsel to the Borrower as to the
completion of the Tylan Merger, shall have been furnished to
the Administrative Agent.
CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower agrees that, so long as any Obligation or
Letter of Credit is outstanding or the Banks have any
obligation to make Loans or the Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit
hereunder or the Banks have any obligation to reimburse the
Administrative Agent for advances made under any Letter of
Credit, it shall, and shall cause its Subsidiaries to,
comply with the following covenants:
Restrictions on Liens.
The Borrower will not, and will cause its Subsidiaries
not to, 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
property or assets of any character, whether now owned or
hereafter acquired, or upon the income or profits therefrom;
or 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;
or 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; or suffer to exist for a period of more than 30
days after the same shall have been incurred any
Indebtedness or claim or demand against it which if unpaid
might by law or upon bankruptcy or insolvency, or otherwise,
be given any priority whatsoever over its general creditors;
or sell, assign, pledge or otherwise transfer any accounts,
contract rights, general intangibles or chattel paper, with
or without recourse, except as follows (the "Permitted
Liens"):
(a) Liens existing on the Closing Date and listed
on Schedule 8.1(a) hereto;
(b) Liens to secure taxes, assessments and other
government charges in respect of obligations not
overdue;
(c) 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;
(d) Liens of carriers, warehousemen, mechanics
and materialmen, and other like liens, in existence
less than 120 days from the date of creation thereof in
respect of obligations not overdue, provided that such
liens may continue to exist for a period of more than
120 days if the validity or amount thereof shall
currently be contested by the Borrower in good faith by
appropriate proceedings and if the Borrower shall have
set aside on its books adequate reserves with respect
thereto as required by GAAP and provided further that
the Borrower will pay any such claim forthwith upon
commencement of proceedings to foreclose any such lien;
(e) Encumbrances 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 any Subsidiary 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 or any
of its Subsidiaries, which defects do not individually
or in the aggregate have a material adverse effect on
the business of the Borrower or any Subsidiary
individually or of the Borrower and its Subsidiaries on
a consolidated basis;
(f) Liens in respect of judgments or awards which
have been in force for less than the applicable period
for taking an appeal so long as execution is not levied
thereunder or in respect of which the Borrower shall at
the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay
of execution shall have been obtained pending such
appeal or review and in respect of which the Borrower
has maintained adequate reserves;
(g) the rights of lessors under Capitalized
Leases, not to exceed $15,000,000 in the aggregate at
any time;
(h) Liens with respect to receivables transferred
pursuant to Permitted Receivables Transactions, which
Liens are only on the receivables so transferred and
secure only the obligations with respect thereto;
(i) previously existing Liens granted by acquired
Subsidiaries or businesses on the terms and conditions
in effect as of the date of such acquisition, provided
that such Liens shall not have been incurred in
contemplation of such acquisition;
(j) existing Liens in connection with the Tylan
Revolving Credit Agreement, provided that the proceeds
of the Loans advanced hereunder shall be used to
discharge the Indebtedness under the Tylan Revolving
Credit Agreement on or before March 31, 1997; and
(k) other Liens securing Indebtedness of the
Borrower and its Subsidiaries not to exceed $25,000,000
in the aggregate at any time outstanding.
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 the
following ("Permitted Investments"):
(a) marketable direct or guaranteed obligations
of the United States of America or Eligible Foreign
Banks that mature within one (1) year from the date of
purchase by the Borrower;
(b) demand deposits, certificates of deposit,
bankers acceptances and time deposits of United States
banks or Eligible Foreign Banks having total assets in
excess of $1,000,000,000;
(c) securities commonly known as "commercial
paper" issued by a corporation organized and existing
under the laws of the United States of America or any
state thereof that at the time of purchase have been
rated and the ratings for which are not less than "P 1"
if rated by Moody's Investors Services, Inc., and not
less than "A 1" if rated by Standard and Poor's;
(d) Investments existing on the date hereof and
listed on Schedule 8.2(d) hereto;
(e) Investments by the Borrower in Subsidiaries
existing on the Closing Date or as permitted by 8.3
hereof;
(f) 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 $1,000,000 in the aggregate at
any time outstanding; and
(g) Other Investments not to exceed $20,000,000
in the aggregate.
Merger, Consolidation, and Disposition of Assets.
Neither the Borrower nor any Subsidiary shall be a
party to any merger, consolidation or exchange of stock
unless the Borrower shall be the surviving entity with
respect to any such transactions to which the Borrower is a
party or a Subsidiary shall be the surviving entity (and
continue to be a Subsidiary) with respect to any such
transactions to which one or more Subsidiaries is a party
(and the conditions set forth below are satisfied), or
purchase or otherwise acquire all or substantially all of
the assets or stock of any class of, or any partnership or
joint venture interest in, any other Person except as
otherwise provided in this 8.3, or sell, transfer, convey
or lease any assets or group of assets including the sale or
transfer of any property owned by the Borrower or any
Subsidiary in order then or thereafter to lease such
property or lease other property which the Borrower or such
Subsidiary intends to use for substantially the same purpose
as the property being sold or transferred (except
(1) transfers of personal property among Subsidiaries of the
Borrower which are wholly owned by the Borrower and (2) so
long as no Default or Event of Default has occurred and is
continuing, or would result therefrom, sales of assets
between the date hereof and the Maturity Date with an
aggregate value not greater than ten percent (10%) of
Consolidated Tangible Assets, as set forth in the most
recent financial statements delivered to the Banks pursuant
to 7.4 hereof) or sell or assign, with or without recourse,
any receivables (except accounts receivable more than sixty
(60) days past due sold or assigned in the ordinary course
of collecting past due accounts, or pursuant to a Permitted
Receivables Transaction). Notwithstanding the foregoing,
the Borrower and its Subsidiaries may purchase or otherwise
acquire any or all of the assets or stock of any class of,
or joint venture interest in, any Person if the following
conditions have been met: (a) the proposed transaction will
not otherwise create a Default or an Event of Default
hereunder; (b) such entity is in substantially the same
lines, related lines, or supporting lines of business as the
Borrower or its Subsidiaries, provided that the cash
consideration (including liabilities assumed) to be paid by
the Borrower or its Subsidiaries in connection with any such
acquisition (or series of related acquisitions) shall not
exceed ten percent (10%) of Consolidated Tangible Assets and
provided, further, that if the cash consideration (including
liabilities assumed) to be paid by the Borrower or its
Subsidiaries in connection with any such acquisition exceeds
$5,000,000, the Borrower will provide calculations showing
compliance with the covenants set forth in 9 hereof on a
pro forma historical combined basis as if the transaction
occurred on the first day of the period of measurement; and
(c) the board of directors and (if required by applicable
law) the shareholders, or the equivalent thereof, of the
business to be acquired (or the owner thereof) has approved
such acquisition.
Restricted Distributions and Redemptions.
Neither the Borrower nor any of its Subsidiaries will
(a) declare or pay any Distributions, or (b) redeem,
convert, retire or otherwise acquire shares of any class of
its capital stock (other than in connection with a merger
permitted by 8.3 hereof or conversion into another form of
equity of any preferred shares of the Borrower existing as
of the Closing Date pursuant to the terms thereof); provided
that the Borrower and its Subsidiaries, so long as no
Default or Event of Default shall have occurred and be
continuing, or would be created as a result of such
Distribution, may pay cash dividends and redeem, convert,
retire, or otherwise acquire stock in an aggregate amount
not to exceed (i) $50,000,000 plus (ii) for the years ending
December 31, 1997 and December 31, 1998, 50% of positive
Consolidated Net Income, plus (iii) for the years ending
December 31, 1999, December 31, 2000 and December 31, 2001,
75% of positive Consolidated Net Income, provided that no
Distribution would be permitted for the years ending
December 31, 1999, December 31, 2000 and December 31, 2001
if such Distribution would result in a ratio of pro forma
(x) Funded Debt to (y) Consolidated Net Worth plus Funded
Debt in excess of 55% based on the amounts of Funded Debt
and Consolidated Net Worth reported in the most recent
Compliance Certificate, adjusted to give pro forma effect to
such Distribution. Notwithstanding the above, any Subsidiary
may make Distributions to the Borrower and the Borrower
agrees that neither the Borrower nor any Subsidiary will
enter into any agreement restricting Distributions from such
Subsidiary to the Borrower, and warrants that no such
restriction is in effect as of the Closing Date.
Employee Benefit Plans.
None of the Borrower, any of its Subsidiaries, or any
ERISA Affiliate will:
(a) engage in any "prohibited transaction" within
the meaning of 9406 of ERISA or 4975 of the Code which
could result in a material liability for the Borrower
on a consolidated basis; or
(b) permit any Guaranteed Pension Plan to incur
an "accumulated funding deficiency," as such term is
defined in 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 guarantor pursuant to 302(f) or
4068 of ERISA; or
(d) permit or take any action which would result
in the aggregate benefit liabilities (within the
meaning of 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.
The Borrower and its Subsidiaries will (i) promptly
upon filing the same with the Department of Labor or
Internal Revenue Service, furnish to the Banks a copy of the
most recent actuarial statement required to be submitted
under 103(d) of ERISA and Annual Report, Form 5500, with
all required attachments, in respect of each Guaranteed
Pension Plan and (ii) promptly upon receipt or dispatch,
furnish to the Banks any notice, report or demand sent or
received in respect of a Guaranteed Pension Plan under
302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA,
or in respect of a Multiemployer Plan, under 4041A, 4202,
4219, or 4245 of ERISA.
FINANCIAL COVENANTS OF THE BORROWER.
The Borrower agrees that, so long as any Obligation or
Letter of Credit is outstanding or the Banks have any
obligation to make Loans or any Administrative Agent has any
obligation to issue, extend or renew any Letters of Credit
hereunder or the Banks have any obligation to reimburse the
Administrative Agent for advances made under any Letter of
Credit, it shall, and shall cause its Subsidiaries to,
comply with the following covenants:
Funded Debt to EBITDA Ratio.
As of the end of any fiscal quarter of the Borrower,
the ratio of (a) Funded Debt as at the end of such quarter
to (b) EBITDA for the period of four (4) consecutive fiscal
quarters ending on such date shall not exceed the stated
ratio for the periods set forth below:
For the Quarters Ending: Ratio
On or before 12/31/97 3.25:1.00
3/31/98 through 12/31/98 2.75:1.00
Thereafter 2.50:1.00
Interest Coverage Ratio.
As of the end of any fiscal quarter, the ratio of
(a) EBITDA minus Capital Expenditures for the Reference
Period ending on such date to (b) Consolidated Total
Interest Expense for the Reference Period ending on such
date shall not be less than the stated ratio for the periods
set forth below:
For the Quarters Ending: Ratio
3/31/97 and 6/30/97 3.00:1.00
9/30/97 through 12/31/98 3.50:1.00
Thereafter 4.00:1.00
CONDITIONS TO EFFECTIVENESS.
The effectiveness of the Agreement and the obligations
of the Banks to make any Loans and of any Administrative
Agent to issue Letters of Credit on the Closing Date and
otherwise be bound by the terms of this Agreement shall be
subject to the satisfaction of each of the following
conditions precedent which shall occur no later than January
22, 1997:
Corporate Action.
All corporate action necessary for the valid execution,
delivery and performance by the Borrower of the Loan
Documents shall have been duly and effectively taken, and
evidence thereof certified by an authorized officer of the
Borrower and satisfactory to the Administrative Agent shall
have been provided to the Administrative Agent.
Loan Documents, Etc.
Each of the Loan Documents and other documents listed
on the closing agenda shall have been duly and properly
authorized, executed and delivered by the respective parties
thereto and shall be in full force and effect in a form
satisfactory to the Administrative Agent.
Certified Copies of Charter Documents.
The Administrative Agent shall have received from the
Borrower a copy, certified by a duly authorized officer of
such Person to be true and complete on the Closing Date, of
(a) its charter or other incorporation documents as in
effect on such date of certification, and (b) its by-laws as
in effect on such date.
Incumbency Certificate.
The Administrative Agent shall have received an
incumbency certificate, dated as of the Closing Date, signed
by duly authorized officers giving the name and bearing a
specimen signature of each individual who shall be
authorized: (a) to sign the Loan Documents on behalf of the
Borrower (b) to make Syndicated Loan and Letter of Credit
Requests; (d) to make Competitive Bid Quote Requests; and
(d) to give notices and to take other action on the
Borrower's behalf under the Loan Documents.
Certificates of Insurance.
The Administrative Agent shall have received (i) a
certificate of insurance from an independent insurance
broker dated as of the Closing Date, or within 15 days prior
thereto, identifying insurers, types of insurance, insurance
limits, and policy terms, and otherwise describing the
insurance obtained in accordance with the provisions of the
Loan Documents and (ii) copies of all policies evidencing
such insurance (or certificates therefor signed by the
insurer or an agent authorized to bind the insurer).
Opinions of Counsel.
The Administrative Agent shall have received favorable
legal opinions from outside counsel to the Borrower,
addressed to the Administrative Agent, dated the Closing
Date, in form and substance satisfactory to the
Administrative Agent.
Existing Debt.
The Administrative Agent shall have received a payoff
letter with respect to the Bridge Loan indicating the amount
of the loan obligations of the Borrower to be discharged on
or about January 24, 1997.
Satisfactory Financial Condition.
No material adverse change, in the judgment of the
Administrative Agent, shall have occurred in the financial
condition, results of operations, business, properties or
prospects of the Borrower and its Subsidiaries, or Amicon,
or Tylan and its Subsidiaries, taken as a whole, since the
most recent financial statements and projections provided to
the Administrative Agent.
Lien Searches.
The Administrative Agent shall have received the
results of lien searches demonstrating that there are no
liens on the assets of the Borrower or Tylan, other than
Permitted Liens.
Fees.
The Borrower shall have paid to the Administrative
Agent all fees, including legal fees, required to be paid as
of the Closing Date.
CONDITIONS TO LOANS.
The obligations of the Banks to make any Loan and the
obligation of the Administrative Agent to issue, extend, or
renew any Letter of Credit at the time of and subsequent to
the Closing Date is subject to the following conditions
precedent:
Representations True.
Each of the representations and warranties of the
Borrower contained in this Agreement or in any document or
instrument delivered pursuant to or in connection with this
Agreement shall be true as of the date as of which they were
made and shall also be true at and as of the time of the
making of such Loan or the issuance, extension, or renewal
of such Letter of Credit, as applicable, 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 Agreement and changes occurring in the
ordinary course of business which singly or in the aggregate
are not materially adverse to the business, assets or
financial condition of the Borrower and its Subsidiaries as
a whole, and to the extent that such representations and
warranties relate expressly and solely to an earlier date).
Performance; No Event of Default.
The Borrower and its Subsidiaries shall have performed
and complied with all terms and conditions herein required
to be performed or complied with by them prior to or at the
time of the making of any Loan or the issuance, extension or
renewal of any Letter of Credit, and at the time of the
making of any Loan, there shall exist no Default or Event of
Default or condition which would result in a Default or an
Event of Default upon consummation of such Loan or the
issuance, extension, or renewal of such Letter of Credit, as
applicable. Each request by the Borrower for a Loan and
each request for issuance, extension or renewal of a Letter
of Credit shall constitute certification by the Borrower
that the conditions specified in 11.1 and 11.2 will be
duly satisfied on the date of such Loan or Letter of Credit
issuance, extension or renewal.
No Legal Impediment.
No change shall have occurred in any law or regulations
thereunder or interpretations thereof which in the
reasonable opinion of the Banks would make it illegal for
the Banks to make Loans or for the Administrative Agent to
issue, extend or renew Letters of Credit hereunder.
Governmental Regulation.
The Banks shall have received from the Borrower and its
Subsidiaries such statements in substance and form
reasonably satisfactory to the Banks as they 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.
Proceedings and Documents.
All proceedings in connection with the transactions
contemplated by this Agreement and all documents incident
thereto shall have been delivered to the Banks as of the
date of the making of such Loan in substance and in form
satisfactory to the Banks, including without limitation a
Syndicated Loan Request in the form attached hereto as
Exhibit C-1 and a Letter of Credit Request in the form of
Exhibit C-2, and the Banks shall have received all
information and such counterpart originals or certified or
other copies of such documents as the Banks may reasonably
request.
EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF
COMMITMENT.
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 and/or lapse of time,
"Defaults") shall occur:
(a) the Borrower shall fail to pay any principal
of the Loans 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
or fees or other amounts owing hereunder within three
(3) Business Days after the same shall become due and
payable whether at the Maturity Date or any accelerated
date of maturity or at any other date fixed for
payment;
(c) the Borrower shall fail to comply with the
covenants contained in 7, 8 or 9 hereof;
(d) the Borrower shall fail to perform any term,
covenant or agreement contained herein or in any of the
other Loan Documents (other than those specified in
subsections (a), (b), and (c) above) and such failure
shall not be remedied within 30 days after written
notice of such failure shall have been given to the
Borrower by the Administrative Agent or any of the
Banks;
(e) any representation or warranty contained in
this Agreement or in any document or instrument
delivered pursuant to or in connection with this
Agreement shall prove to have been false in any
material respect upon the date when made or repeated;
(f) the Borrower or any of its Subsidiaries shall
fail to pay when due, or within any applicable period
of grace, any Indebtedness in an aggregate amount
greater than $5,000,000, or fail to observe or perform
any material term, covenant or agreement contained in
any one or more agreements by which it is bound,
evidencing or securing any Indebtedness in an aggregate
amount greater than $5,000,000 for such period of time
as would, or would have permitted (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 terminate its
commitment with respect thereto;
(g) the Borrower or any Subsidiary makes an
assignment for the benefit of creditors, or admits in
writing its inability to pay or generally fails to pay
its debts as they mature or become due, or petitions or
applies for the appointment of a trustee or other
custodian, liquidator or receiver of the Borrower or
any Subsidiary or of any substantial part of the assets
of the Borrower or commences any case or other
proceeding relating to the Borrower or any Subsidiary
under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or
liquidation or similar law of any jurisdiction, now or
hereafter in effect, or takes any action to authorize
or in furtherance of any of the foregoing, or if any
such petition or application is filed or any such case
or other proceeding is commenced against the Borrower
or any Subsidiary or the Borrower or any Subsidiary
indicates its approval thereof, consent thereto or
acquiescence therein;
(h) a decree or order is entered appointing any
such trustee, custodian, liquidator or receiver or
adjudicating the Borrower or any Subsidiary 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 in
an involuntary case under federal bankruptcy laws as
now or hereafter constituted, and such decree or order
remains in effect for more than 30 days, whether or not
consecutive;
(i) there shall remain in force, undischarged,
unsatisfied and unstayed, for more than thirty days,
whether or not consecutive, any final judgment against
the Borrower or any Subsidiary which, with other
outstanding final judgments against the Borrower and
its Subsidiaries exceeds in the aggregate $5,000,000
after taking into account any undisputed insurance
coverage;
(j) with respect to any Guaranteed Pension Plan,
an ERISA Reportable Event shall have occurred and the
Banks shall have determined in their reasonable
discretion that such event reasonably could be expected
to result in liability of the Borrower or any
Subsidiary or any Subsidiary to the PBGC or the Plan in
an aggregate amount exceeding $5,000,000 and such event
in the circumstances occurring reasonably could
constitute grounds for the termination of such Plan by
the PBGC or for the appointment by the appropriate
United States District Court of a trustee to administer
such Plan; or a trustee shall have been appointed by
the United States District Court to administer such
Plan; or the PBGC shall have instituted proceedings to
terminate such Plan;
(k) any of the Loan Documents shall be canceled,
terminated, revoked or rescinded otherwise than in
accordance with the terms thereof or with the express
prior written agreement, consent or approval of the
Banks, 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 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; or
(l) 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 20% or more of the outstanding shares of common
voting 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 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 Administrative Agent may, and upon the
request of the Majority Banks shall, by notice in writing to
the Borrower, declare all amounts owing with respect to this
Agreement, the Notes 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, notice of intent to
accelerate, notice of acceleration to the extent permitted
by law 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 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
Administrative Agent or any Bank. Upon demand by the
Majority Banks after the occurrence of any Event of Default,
the Borrower shall immediately provide to the Administrative
Agent cash in an amount equal to the aggregate Maximum
Drawing Amount to be held by the Administrative Agent as
collateral security for the Reimbursement Obligations.
Termination of Commitments.
If any Event of Default pursuant to 12.1(g) or
12.1(h) hereof shall occur, any unused portion of the Total
Commitment hereunder shall forthwith terminate and the Banks
and the Administrative Agent shall be relieved of all
obligations to make Loans to or to issue, extend or renew
Letters of Credit for the account of the Borrower; or if any
other Event of Default shall occur, the Majority Banks may
and, upon the request of the Majority Banks, shall, by
notice to the Borrower, terminate the unused portion of the
Total Commitment hereunder, and, upon such notice being
given, such unused portion of the Total Commitment hereunder
shall terminate immediately and the Banks and the
Administrative Agent shall be relieved of all further
obligations to make Loans to or to issue, extend or renew
Letters of Credit for the account of the Borrower hereunder.
No termination of any portion of the Commitment Percentage
hereunder shall relieve the Borrower of any of its existing
Obligations to the Banks or the Administrative Agent
hereunder or elsewhere.
Remedies.
In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the
Banks shall have accelerated the maturity of the Loans
pursuant to 12.1, each Bank, if owed any amount with
respect to the Loans or the Reimbursement Obligations, with
the consent of the Majority Banks but not otherwise, 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 Agreement and the other Loan Documents or
any instrument pursuant to which the Obligations to such
Bank are evidenced, including, without limitation, 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 legal or equitable right of such
Bank. No remedy herein conferred upon any Bank or the
Administrative Agent or the holder of any 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.
SETOFF.
Regardless of the adequacy of any collateral, during
the continuance of any Event of Default, any deposits or
other sums credited by or due from any of the Banks to the
Borrower and any securities or other property of the
Borrower in the possession of such Bank may be applied to or
set off by such Bank against the payment of Obligations and
any and all other liabilities, direct, or indirect, absolute
or contingent, due or to become due, now existing or
hereafter arising, of the Borrower to such Bank. Each of
the Banks agrees with each other Bank that (i) if an amount
to be set off is to be applied to Indebtedness of the
Borrower to such Bank, other than Indebtedness evidenced by
the Notes held by such Bank, such amount shall be applied
ratably to such other Indebtedness and to the Indebtedness
evidenced by all such Notes held by such Bank, and (ii) if
such Bank shall receive from the Borrower, whether by
voluntary payment, exercise of the right of setoff,
counterclaim, cross action, enforcement of the claim
evidenced by the Notes held by such Bank by proceedings
against the Borrower at law or in equity or by proof thereof
in bankruptcy, reorganization, liquidation, receivership or
similar proceedings, or otherwise, and shall retain and
apply to the payment of the Note or Notes held by such Bank
any amount in excess of its ratable portion of the payments
received by all of the Banks with respect to the Notes held
by all of the Banks, such Bank will make such disposition
and arrangements with the other Banks with respect to such
excess, either by way of distribution, pro tanto assignment
of claims, subrogation or otherwise as shall result in each
Bank receiving in respect of the Notes held by its
proportionate payment as contemplated by this Agreement;
provided that if all or any part of such excess payment is
thereafter recovered from such Bank, such disposition and
arrangements shall be rescinded and the amount restored to
the extent of such recovery, but without interest.
EXPENSES.
Whether or not the transactions contemplated herein
shall be consummated, the Borrower hereby promises to
reimburse the Administrative Agent for all reasonable out-of-
pocket fees and disbursements (including all reasonable
attorneys' fees) incurred or expended in connection with the
preparation, filing or recording, or interpretation of this
Agreement, the other Loan Documents, or any amendment,
modification, approval, consent or waiver hereof or thereof.
The Borrower further promises to reimburse the
Administrative Agent and the Banks for all reasonable out-of-
pocket fees and disbursements (including all reasonable
legal fees and the allocable cost of in-house attorneys'
fees) incurred or expended in connection with the
enforcement of any Obligations or the satisfaction of any
indebtedness of the Borrower hereunder or thereunder, or in
connection with any litigation, proceeding or dispute
hereunder in any way related to the credit hereunder. The
Borrower also promises to pay the Administrative Agent all
reasonable out-of-pocket fees and disbursements incurred or
expended in connection with the Competitive Bid Loan
procedure under 4 hereof, or in connection with the
syndication of the Syndicated Loans hereunder. The Borrower
will pay any taxes (including any interest and penalties in
respect thereof) other than any Bank's or the Administrative
Agent's Income Taxes payable on or with respect to the
transactions contemplated by this Agreement (the Borrower
hereby agreeing to indemnify each Bank and the
Administrative Agent with respect thereto).
THE AGENTS.
Appointment, Powers and Immunities.
Each Bank hereby irrevocably appoints and authorizes
FNBB to act as Administrative Agent hereunder and under the
other Loan Documents, and to exercise such powers as are
reasonably incidental thereto and as are set forth in this
Agreement and the other Loan Documents. The Administrative
Agent hereby acknowledges that it does not have the
authority to negotiate any agreement which would bind the
Banks or agree to any amendment, waiver or modification of
any of the Loan Documents or bind the Banks except as set
forth in this Agreement or the Loan Documents. Except as
provided in this Agreement and in the other Loan Documents,
the Administrative Agent shall take action or refrain from
acting only upon instructions of the Banks. It is agreed
that the duties, rights, privileges and immunities of the
Administrative Agent, in its capacity as issuer of Letters
of Credit hereunder, shall be identical to the duties,
rights, privileges and immunities of the Administrative
Agent as provided in this 15. The Administrative Agent
shall not have any duties or responsibilities or any
fiduciary relationship with any Bank except those expressly
set forth in this Agreement. Neither the Administrative
Agent nor any of its affiliates shall be responsible to the
Banks for any recitals, statements, representations or
warranties made by the Borrower or any other Person whether
contained herein or otherwise or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of
this Agreement, the other Loan Documents or any other
document referred to or provided for herein or therein or
for any failure by the Borrower or any other Person to
perform its obligations hereunder or thereunder or in
respect of the Notes. The Administrative Agent may employ
agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care.
Neither the Administrative Agent nor any of its directors,
officers, employees or agents shall be responsible for any
action taken or omitted to be taken by it or them hereunder
or in connection herewith, except for its or their own gross
negligence or willful misconduct. The Administrative Agent
in its separate capacity as a Bank shall have the same
rights and powers hereunder as any other Bank.
Actions By Administrative Agent.
The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement
as reasonably deemed appropriate unless it shall first have
received the consent of the Banks and shall be indemnified
to its reasonable satisfaction by the Banks against any and
all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected
in acting, or in refraining from acting, under this
Agreement or any of the Loan Documents in accordance with
the instruction of the Banks, and such instruction and any
action taken or failure to act pursuant thereto shall be
binding upon the Banks and all future holders of the Notes
or any Letter of Credit Participation.
Indemnification.
Without limiting the obligations of the Borrower and
its Subsidiaries hereunder or under any other Loan Document,
the Banks agree to indemnify the Agents, ratably in
accordance with their respective Commitment Percentages, for
any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may at
any time be imposed on, incurred by or asserted against the
Agents in any way relating to or arising out of this
Agreement or any other Loan Document or any documents
contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or the
enforcement of any of the terms hereof or thereof or of any
such other documents; provided, that no Bank shall be liable
for any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the Agents (or any
agent thereof), IT BEING THE INTENT OF THE PARTIES HERETO
THAT THE AGENTS SHALL BE INDEMNIFIED FOR THEIR ORDINARY SOLE
OR CONTRIBUTORY NEGLIGENCE.
Reimbursement.
Without limiting the provisions of 5.1(a), 5.13, and
13, the Administrative Agent shall not be obliged to make
available to any Person any sum which the Administrative
Agent is expecting to receive for the account of that Person
until the Administrative Agent has determined that it has
received that sum. The Administrative Agent may, however,
disburse funds prior to determining that the sums which the
Administrative Agent expects to receive have been finally
and unconditionally paid to the Administrative Agent, if the
Administrative Agent wishes to do so. If and to the extent
that the Administrative Agent does disburse funds and it
later becomes apparent that the Administrative Agent did not
then receive a payment in an amount equal to the sum paid
out, then any Person to whom the Administrative Agent made
the funds available shall, on demand from the Administrative
Agent, refund to the Administrative Agent the sum paid to
that Person. If, in the opinion of the Administrative
Agent, the distribution of any amount received by it in such
capacity hereunder or under the Loan Documents might involve
it in liability, it may refrain from making such
distribution until its right to make such distribution shall
have been adjudicated by a court of competent jurisdiction.
If a court of competent jurisdiction shall adjudge that any
amount received and distributed by the Administrative Agent
is to be repaid, each Person to whom any such distribution
shall have been made shall either repay to the
Administrative Agent its proportionate share of the amount
so adjudged to be repaid or shall pay over the same in such
manner and to such Persons as shall be determined by such
court.
Documents.
The Administrative Agent will forward to each Bank,
promptly after receipt thereof, a copy of each notice or
other document furnished to the Administrative Agent for
such Bank hereunder; provided, however, that,
notwithstanding the foregoing, the Administrative Agent may
furnish to the Banks a monthly summary with respect to
Letters of Credit issued hereunder in lieu of copies of the
related Letter of Credit Applications. The Documentation
Agent shall have no responsibility to the Banks with respect
to the documents hereunder.
Non-Reliance on Agents and Other Banks.
Each Bank represents that it has, independently and
without reliance on the Agents or any other Bank, and based
on such documents and information as it has deemed
appropriate, made its own appraisal of the financial
condition and affairs of the Borrower and the decision to
enter into this Agreement and the other Loan Documents and
agrees that it will, independently and without reliance upon
the Agents or any other Bank, and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own appraisals and decisions in taking
or not taking action under this Agreement or any other Loan
Document. Except as herein expressly provided to the
contrary, the Agents shall not be required to keep informed
as to the performance or observance by the Borrower of this
Agreement, the other Loan Documents or any other document
referred to or provided for herein or therein or by any
other Person of any other agreement or to make inquiry of,
or to inspect the properties or books of, any Person.
Except for notices, reports and other documents and
information expressly required to be furnished to the Banks
by the Administrative Agent hereunder, the Agents shall not
have any duty or responsibility to provide any Bank with any
credit or other information concerning any Person which may
come into the possession of the Agents or any of their
affiliates. Each Bank shall have access to all documents
relating to the Administrative Agent's performance of its
duties hereunder at such Bank's request. Unless any Bank
shall promptly object to any action taken by the
Administrative Agent hereunder of which such Bank has actual
knowledge (other than actions which require the prior
consent of such Bank in accordance with the terms hereof or
to which the provisions of 15.8 are applicable and other
than actions which constitute gross negligence or willful
misconduct by the Agents), such Bank shall be presumed to
have approved the same.
Resignation of Administrative Agent.
The Administrative Agent may resign at any time by
giving 60 days' prior written notice thereof to the Banks
and the Borrower. Upon any such resignation, the Banks
(other than the resigning Administrative Agent) shall have
the right to appoint a successor Administrative Agent from
among the Banks. If no successor to such Administrative
Agent shall have been so appointed by the Banks and shall
have accepted such appointment within 30 days after the
retiring Administrative Agent's giving of notice of
resignation, then the retiring Administrative Agent may, on
behalf of the Banks, appoint a successor Administrative
Agent from among the remaining Banks, which shall be a
financial institution having a combined capital and surplus
in excess of $1,000,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent
shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring
Administrative Agent, and the retiring Administrative Agent
shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's
resignation, the provisions of this Agreement shall continue
in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as
Administrative Agent. Any new Administrative Agent
appointed pursuant to this 15.7 shall immediately issue new
Letters of Credit in place of Letters of Credit previously
issued, or if acceptable to the resigning Administrative
Agent, issue letters of credit in favor of the resigning
Administrative Agent as security for the outstanding Letters
of Credit and shall in due course replace all Letters of
Credit previously issued by the resigning Administrative
Agent.
Action by the Banks, Consents, Amendments, Waivers,
Etc.
Any action to be taken (including the giving of notice)
may be taken, any consent or approval required or permitted
by the Agreement or any other Loan Document to be given by
the Banks may be given, any term of this Agreement, any
other Loan Document or any other instrument, document or
agreement related to this Agreement or the other Loan
Documents or mentioned herein or therein may be amended, and
the performance or observance by the Borrower or any other
Person of any of the terms hereof or thereof and any Default
or Event of Default (as defined in any of the above-
referenced documents or instruments) may be waived (either
generally or in a particular instance and either
retroactively or prospectively), only with the written
consent of the Majority Banks; provided, however, that no
such consent or amendment which affects the rights, duties
or liabilities of either Agent shall be effective without
the written consent of such Agent. Notwithstanding the
foregoing, no amendment, waiver or consent shall do any of
the following unless in writing and signed by ALL of the
Banks: (a) increase the principal amount of the Total
Commitment (or subject the Banks to any additional
obligations); (b) reduce the principal of or interest on the
Notes (including, without limitation, interest on overdue
amounts) or any fees payable hereunder; (c) postpone any
date fixed for any payment in respect of principal or
interest (including, without limitation, interest on overdue
amounts) on the Notes, or any fee hereunder; (d) change the
definition of "Majority Banks" or the number of Banks which
shall be required for the Banks or any of them to take any
action under the Loan Documents; (e) amend this 15.8; or
(f) change the Commitment Percentage of any Bank, except as
permitted under 18 hereof.
Holders of Notes.
The Administrative Agent may deem and treat the payee
of any Note or the purchaser of any Letter of Credit
Participation as the absolute owner or purchaser thereof for
all purposes hereof until it shall have been furnished in
writing with a different name by such payee or by a
subsequent holder, assignee or transferee.
Administrative Agent's Fee.
The Borrower shall pay to the Administrative Agent, for
the Administrative Agent's own account, on the Closing Date
and on each anniversary thereof, an annual Administrative
Agent's fee in an amount previously agreed to in that
certain letter agreement, dated December 20, 1996, between
the Borrower and the Administrative Agent.
INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the
Banks and the Agents and their affiliates, as well as the
Banks' and the Agents' and their affiliates' shareholders,
directors, agents, officers, subsidiaries and affiliates,
from and against all damages, losses, settlement payments,
obligations, liabilities, claims, suits, penalties,
assessments, citations, directives, demands, judgments,
actions or causes of action, whether created by statute or
under the common law, and reasonable costs and expenses
incurred, suffered, sustained or required to be paid by an
indemnified party by reason of or resulting from the
transactions contemplated hereby, except any of the
foregoing which result from the gross negligence or willful
misconduct of any indemnified party. In any investigation,
enforcement matter, proceeding or litigation, or the
preparation therefor, the Banks and the Agents 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. In the event
of the commencement of any such proceeding or litigation
against the Banks by third parties, the Borrower shall be
entitled to participate in such proceeding or litigation
with counsel of its choice at its expense, provided that
such counsel shall be reasonably satisfactory to the Banks.
The covenants of this 16 shall survive payment or
satisfaction of payment of amounts owing with respect to any
Note or any other Loan Document, IT BEING THE INTENT OF THE
PARTIES HERETO THAT ALL SUCH INDEMNIFIED PARTIES SHALL BE
INDEMNIFIED FOR THEIR ORDINARY SOLE OR CONTRIBUTORY
NEGLIGENCE.
SURVIVAL OF COVENANTS, ETC.
Unless otherwise stated herein, all covenants,
agreements, representations and warranties made herein, in
the other Loan Documents or in any documents or other papers
delivered by or on behalf of the Borrower pursuant hereto
shall be deemed to have been relied upon by the Banks and
the Agents, notwithstanding any investigation heretofore or
hereafter made by it, and shall survive the making by the
Banks of the Loans and the issuance, extension or renewal of
any Letters of Credit by the Administrative Agent, as herein
contemplated, and shall continue in full force and effect so
long as any amount due under this Agreement, any Obligation,
any Letter of Credit or any Note remains outstanding and
unpaid or any Bank has any obligation to make any Loans or
the Administrative Agent has any obligation to issue,
extend, or renew any Letters of Credit hereunder. All
statements contained in any certificate or other paper
delivered by or on behalf of the Borrower pursuant hereto or
in connection with the transactions contemplated hereby
shall constitute representations and warranties by the
Borrower hereunder.
ASSIGNMENT AND PARTICIPATION.
It is understood and agreed that each Bank shall have
the right to assign at any time all or a portion of its
Commitment Percentage and interests in the risk relating to
the Loans, outstanding Letters of Credit and its Commitment
hereunder in an amount equal to or greater than $10,000,000
(which assignment shall be of an equal percentage of the
Commitment, the Loans and outstanding Letters of Credit
unless otherwise agreed to by the Administrative Agent) to
additional banks or other financial institutions with the
prior written approval of the Administrative Agent and,
unless an Event of Default shall have occurred and be
continuing, the Borrower, which approvals shall not be
unreasonably withheld. Any Bank may at any time, and from
time to time, assign to any branch, lending office, or
affiliate or such Bank all or any part of its rights and
obligations under the Loan Documents by notice to the
Administrative Agent and the Borrower. It is further agreed
that each bank or other financial institution which executes
and delivers to the Administrative Agent and the Borrower
hereunder an Assignment and Acceptance substantially in the
form of Exhibit E hereto (an "Assignment and Acceptance")
together with an assignment fee in the amount of $2,500
payable by the assigning Bank to the Administrative Agent,
shall, on the date specified in such Assignment and
Acceptance, become a party to this Agreement and the other
Loan Documents for all purposes of this Agreement and the
other Loan Documents, and its portion of the Commitment, the
Loans and Letters of Credit shall be as set forth in such
Assignment and Acceptance. The Bank assignor thereunder
shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its
obligations under this Agreement. Upon the execution and
delivery of such Assignment and Acceptance, (a) the Borrower
shall issue to the bank or other financial institution a
Syndicated Note in the amount of such bank's or other
financial institution's Commitment dated the date of the
assignment or such other date as may be specified by the
Administrative Agent, and otherwise completed in
substantially the form of Exhibit A and, to the extent any
assigning Bank has retained a portion of its obligations
hereunder, a replacement Syndicated Note to the assigning
Bank reflecting its assignment; (b) to the extent
applicable, the Borrower shall issue a Competitive Bid Note
in substantially the form of Exhibit B (and a replacement
Competitive Bid Note); (c) the Administrative Agent shall
distribute to the Borrower, the Banks and such assignee bank
or financial institution a schedule reflecting such changes;
and (d) this Agreement shall be appropriately amended to
reflect (i) the status of the assignee bank or financial
institution as a party hereto and (ii) the status and rights
of the Banks hereunder.
Each Bank shall also have the right to grant
participations to one or more banks or other financial
institutions in its Commitment, the Loans and outstanding
Letters of Credit. The documents evidencing any such
participation shall limit such participating bank's or
financial institution's voting rights with respect to the
matters set forth in 15.8 of this Agreement which require
the vote of all Banks.
Notwithstanding the foregoing, no assignment or
participation shall operate to increase the Commitment
hereunder or otherwise alter the substantive terms of this
Agreement, and no Bank which retains a Commitment hereunder
shall have a Commitment of less than $10,000,000 (as such
amount may be reduced upon reductions in the Total
Commitment pursuant to 2.3 hereof) unless the
Administrative Agent and the Borrower shall have consented
to such lesser amount.
Anything contained in this 18 to the contrary
notwithstanding, any Bank may at any time pledge all or any
portion of its interest and rights under this Agreement
(including all or any portion of its Notes) to any of the
twelve Federal Reserve Banks organized under 4 of the
Federal Reserve Act, 12 U.S.C. 341. No such pledge or the
enforcement thereof shall release the pledgor Bank from its
obligations hereunder or under any of the other Loan
Documents.
PARTIES IN INTEREST.
All the terms of this Agreement and the other Loan
Documents shall be binding upon and inure to the benefit of
and be enforceable by the respective successors and assigns
of the parties hereto and thereto; provided that the
Borrower shall not assign or transfer its rights hereunder
without the prior written consent of each of the Banks.
NOTICES, ETC.
Except as otherwise expressly provided in this
Agreement, all notices and other communications made or
required to be given pursuant to this Agreement or the other
Loan Documents shall be in writing and shall be delivered in
hand, mailed by United States first class mail, postage
prepaid, or sent by telegraph, telex or facsimile and
confirmed by letter, addressed as follows:
(a) if to the Borrower, at 80 Ashby Road,
Bedford, MA 01730-2271, Attention: President,
facsimile number (617) 533-3162, with a copy to the
General Counsel of the Borrower at the same address; or
(b) if to FNBB or the Administrative Agent, at
The First National Bank of Boston, 100 Federal Street,
Boston, MA 02110, Attention: Elizabeth C. Everett,
Director, facsimile number: (617) 434-0819;
or such other address for notice as shall have last been
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 (a) if
delivered by hand to a responsible officer of the party to
which it is directed, at the time of the receipt thereof by
such officer, (b) if sent by registered or certified first-
class mail, postage prepaid, five (5) Business Days after
the posting thereof, and (c) if sent by telex, facsimile, or
cable, at the time of the dispatch thereof, if in normal
business hours in the country of receipt, or otherwise at
the opening of business on the following Business Day.
MISCELLANEOUS.
The rights and remedies herein expressed are cumulative
and not exclusive of any other rights which the Banks would
otherwise have. The captions in this Agreement are for
convenience of reference only and shall not define or limit
the provisions hereof. This Agreement and any amendment
hereof may be executed in several counterparts and by each
party on a separate counterpart, each of which when so
executed and delivered shall be an original, but all of
which together shall constitute one instrument. In proving
this 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.
CONSENTS, ETC.
Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated, except as
provided in this 22, subject to the provisions of 15.8.
No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon.
Except as otherwise expressly provided in this Agreement,
any consent or approval required or permitted by this
Agreement to be given by the Banks may be given, and any
term of this Agreement or of any other instrument related
hereto or mentioned herein may be amended, and the
performance or observance by the Borrower of any terms of
this Agreement or such other instrument or the continuance
of any Default or Event of Default may be waived (either
generally or in a particular instance and either
retroactively or prospectively) with, but only with, the
written consent of the Borrower and the Banks. To the
extent permitted by law, no course of dealing or delay or
omission on the part of any of the Banks or the
Administrative Agent 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.
PARI PASSU TREATMENT.
Notwithstanding anything to the contrary set forth
herein, each payment or prepayment of principal and interest
received after the occurrence of an Event of Default
hereunder shall be distributed pari passu among the Banks,
in accordance with the aggregate outstanding principal
amount of the Obligations owing to each Bank divided by the
aggregate outstanding principal amount of all Obligations.
CONFIDENTIALITY.
Each Bank and Agent agrees to hold any confidential
information that it may receive from the Borrower pursuant
to this Agreement or any other Loan Document in confidence,
except for disclosure: (a) to any other Bank or Agent; (b)
to legal counsel and accountants for the Borrower or any
Bank or Agent; (c) to other professional advisors to the
Borrower or any Bank or Agent, provided that the recipient
has delivered to such Bank or Agent, as applicable, a
written confidentiality agreement substantially similar to
this 24; (d) to regulatory officials having jurisdiction
over any Bank or Agent; (e) as required by law or legal
process or in connection with any legal proceeding to which
any Bank or Agent and the Borrower (or any Subsidiary of the
Borrower) are adverse parties; and (f) to another financial
institution in connection with a disposition or proposed
disposition to that financial institution of all or part of
any Bank's or Agent's interests hereunder or a participation
interest in its Syndicated Note or Competitive Bid Note,
provided that the recipient has delivered to such Bank or
Agent, as applicable, a written confidentiality agreement
substantially similar to this 24. Each Bank and Agent
further agrees that it will not use any such confidential
information in any activity or for any purpose other than
the administration of the credit facilities extended to the
Borrower under this Agreement. For purposes of the
foregoing, "confidential information" shall mean any
information respecting the Borrower or its Subsidiaries
reasonably considered to be, is treated as, and is marked
as, confidential by the Borrower, other than (i) information
previously filed with any governmental agency and available
to the public, (ii) information previously published in any
public medium from a source other than, directly or
indirectly, any Bank or Agent, (iii) information already
known by any Bank or Agent or the other party in question
other than as a result of a breach of this Agreement, and
(iv) information previously disclosed by the Borrower or any
Subsidiary to any Person not associated with the Borrower
without a written confidentiality agreement substantially
similar to this 24. Nothing in this Section shall be
construed to create or give rise to any fiduciary duty on
the part of any Bank or Agent to the Borrower or any
Subsidiary.
WAIVER OF JURY TRIAL.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER
HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT, THE 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 ANY
BANK OR THE AGENTS HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT SUCH BANK OR AGENT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B)
ACKNOWLEDGES THAT THE AGENTS AND THE BANKS HAVE BEEN INDUCED
TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BECAUSE OF, AMONG OTHER THINGS, THE BORROWER'S WAIVERS AND
CERTIFICATIONS CONTAINED HEREIN.
GOVERNING LAW.
THIS AGREEMENT AND 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 (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE BORROWER CONSENTS TO THE JURISDICTION
OF ANY OF THE FEDERAL OR STATE COURTS LOCATED IN THE
COMMONWEALTH OF MASSACHUSETTS IN CONNECTION WITH ANY SUIT TO
ENFORCE THE RIGHTS OF THE BANKS OR THE AGENTS UNDER THIS
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
SEVERABILITY.
The provisions of this 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 Agreement in any jurisdiction.
FINAL AGREEMENT.
THIS WRITTEN AGREEMENT AND THE OTHER LOAN DOCUMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS,
OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
IN WITNESS WHEREOF, the undersigned have duly executed
this Agreement under seal as of the date first set forth
above.
MILLIPORE CORPORATION
By:_____________________________
____
Name:
Title:
THE FIRST NATIONAL BANK OF
BOSTON, Individually and as
Administrative Agent
By:_____________________________
______
Name:
Title:
ABN AMRO BANK N.V., Individually
and as Documentation Agent
By:_____________________________
______
Name:
Title:
By:_____________________________
______
Name:
Title:
BOS-BUS:358151
FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
(this "First Amendment") is made and entered into as of
February 11, 1997, by and among (a) MILLIPORE CORPORATION, a
Massachusetts corporation having its principal place of
business at 80 Ashby Road, Bedford, MA 01730 (the
"Borrower"), (b) THE FIRST NATIONAL BANK OF BOSTON, a
national banking association with its head office at 100
Federal Street, Boston, Massachusetts 02110 ("FNBB"), ABN
AMRO BANK N.V., with its Boston branch at One Post Office
Square, Boston, Massachusetts 02109 ("ABN"), and the other
lending institutions party hereto (collectively with FNBB
and ABN, the "Banks") and (c) THE FIRST NATIONAL BANK OF
BOSTON, as administrative agent for the Banks (the
"Administrative Agent") and ABN AMRO BANK N.V., as
documentation agent for the Banks (the "Documentation
Agent," and collectively with the Administrative Agent, the
"Agents").
WHEREAS, the Borrower, FNBB, ABN, and the Agents
entered into a Revolving Credit Agreement dated as of
January 22, 1997 (the "Credit Agreement"), pursuant to which
FNBB and ABN extended credit to the Borrower on the terms
set forth therein;
WHEREAS, FNBB and ABN (collectively, the "Assignor
Banks") wish to assign interests in their Syndicated Loans,
Letter of Credit Participations, Commitments, and other
rights, interests and obligations under the Credit Agreement
to the other financial institutions listed on Schedule 1
attached hereto (collectively, the "Assignee Banks"), and
the Assignee Banks wish to assume such interests and become
parties to the Credit Agreement, all as set forth in this
First Amendment; and
WHEREAS, the parties desire to amend the Credit
Agreement to reflect such assignments and to amend certain
terms of the Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties
agree to amend the Credit Agreement as follows:
Definitions. Capitalized terms used herein
without definition shall have the meanings assigned to such
terms in the Credit Agreement.
Amendment to 1.1. The following definitions in
1.1 of the Credit Agreement are hereby amended to read as
follows:
Drawdown Date. The date on which any Loan is made or
is to be made, or any Loan is converted or continued in
accordance with 2.7.
Permitted Receivables Transaction. Any sale or sales
(including on a revolving basis) of, and/or securitization
of, any accounts receivable of the Borrower and/or any of
its Subsidiaries not to exceed $100,000,000 in the aggregate
at any one time outstanding.
Amendment to 2.3(c). Section 2.3(c) is hereby
amended to read as follows:
(c) In the event that the Note Purchase Agreement is
not amended on or before February 20, 1997, the Borrower may
request that the Total Commitment be increased by
$50,000,000 hereunder, which increase is subject to the
approval of the Administrative Agent; provided, however,
that in the event that such an increase is approved, (i) any
Bank which is a party to this Agreement prior to such
increase shall not be required to increase its Commitment
hereunder, (ii) such Bank's Commitment Percentage shall be
correspondingly decreased to reflect such increase in the
Total Commitment, and (iii) any such increase and the
$50,000,000 of Total Commitment reserved pursuant to 7.18
shall be used to repay the Borrower's obligations under the
Note Purchase Agreement.
Amendment to 3.2(a). Section 3.2(a) is amended
by substituting the phrase, "date of any drawing under any
Letter of Credit" for the phrase, "Drawdown Date" in
subsection (ii) thereof.
Amendment to 11.1. Section 11.1 is amended by
substituting the phrase, "any Drawdown Date" for the phrase,
"the making of such Loan."
Amendment to 12.1(f). Section 12.1(f) is amended
by inserting the phrase, "any obligation in respect of"
immediately prior to the first occurrence of the words, "any
Indebtedness."
Amendment of 18. Section 18 is amended by
deleting the word "Percentage" immediately following the
word "Commitment" in the first sentence thereof.
Waiver of the Requirements of 18. The parties
hereto hereby agree that, to the extent that the actions
taken in connection with the assignments contemplated
hereunder do not comply with certain requirements set forth
in 18, such requirements are hereby waived by all parties,
and the assignments made pursuant to this First Amendment
shall be fully effective to the same extent as if all such
requirements had been fulfilled.
Amendment to Schedule 1 to the Credit Agreement.
Schedule 1 to the Credit Agreement is hereby amended by
deleting such schedule in its entirety and substituting the
Schedule 1 attached hereto in place thereof. The parties
hereto hereby acknowledge and agree that each reference to
Schedule 1 in the Credit Agreement or any other Loan
Document shall henceforth be a reference to Schedule 1
attached hereto or as subsequently amended.
Assignment.
(a) Each Assignor Bank hereby sells and assigns to the
Assignee Banks, and each Assignee Bank hereby purchases and
assumes without recourse to the Assignor Banks, an interest
in and to the rights, benefits, indemnities and obligations
of the Assignor Banks under the Credit Agreement equal to
such Assignee Bank's Commitment Percentage (as set forth on
Schedule 1 hereto) in respect of the Total Commitment and
the Letter of Credit Participations, each as in effect
immediately prior to the Effective Date (as hereinafter
defined).
(b) Each of FNBB and ABN represents and warrants that,
as of the date hereof, (i) ABN's Commitment is $100,000,000,
its Commitment Percentage is 22.2222%, and the aggregate
outstanding principal balance of its Syndicated Loans equals
$60,000,000 and (ii) FNBB's Commitment is $350,000,000, its
Commitment Percentage is 77.7778%, and the aggregate
outstanding principal balance of its Syndicated Loans equals
$210,000,000 (in each case, before giving effect to the
assignments contemplated hereby or any contemplated
assignments which have not yet become effective),
(iii) there are no outstanding Letters of Credit, and (iv)
there are no outstanding Competitive Bid Loans.
(c) Each Assignor Bank (i) represents and warrants
that it is legally authorized to enter into this First
Amendment, but otherwise makes no representation or
warranty, express or implied, and assumes no responsibility
with respect to any statements, warranties or
representations made in or in connection with the Credit
Agreement or any of the other Loan Documents or the
execution (other than on the part of the Assignor Banks),
legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant
thereto, other than that it is the legal and beneficial
owner of the interest being assigned by it hereunder free
and clear of any claim or encumbrance; and (ii) makes no
representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or
any of its Subsidiaries, or the performance or observance by
the Borrower or any of its Subsidiaries or any of their
respective Subsidiaries in respect of any of the Obligations
under the Credit Agreement or any of the other Loan
Documents or any other instrument or document delivered or
executed pursuant thereto.
(d) Each of the Assignee Banks (i) represents and
warrants that (A) it is duly and legally authorized to enter
into this First Amendment, (B) the execution, delivery and
performance of this First Amendment do not conflict with any
provision of law or of the charter or bylaws of such
Assignee Bank, or of any agreement binding on such Assignee
Bank, and (C) all acts, conditions and things required to be
done and performed and to have occurred prior to the
execution, delivery and performance of this First Amendment,
and to render the same the legal, valid and binding
obligation of each of the Assignee Banks, enforceable
against it in accordance with its terms, have been done and
performed and have occurred in due and strict compliance
with all applicable laws; (ii) confirms that it has received
a copy of the Credit Agreement and each of the other Loan
Documents, together with copies of the most recent financial
statements delivered pursuant to 6.4 and 7.4 of the Credit
Agreement and such other documents and information as it has
deemed appropriate to make its own credit analysis and
decision to enter into this First Amendment; (iii) agrees
that it will, independently and without reliance upon any
Assignor Bank, any Agent, or any Bank, and based on such
documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iv)
appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such
powers under the Credit Agreement and the other Loan
Documents as are delegated to the Administrative Agent by
the terms thereof, together with such powers as are
reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are
required to be performed by it as a Bank; and (vi) agrees to
treat in confidence any "confidential information" obtained
by it concerning the Borrower and its Subsidiaries in
accordance with the terms of 24 of the Credit Agreement.
(e) From and after the Effective Date, each of the
Assignee Banks shall be a party to the Credit Agreement,
shall become a "Bank" for all purposes under the Credit
Agreement and the Loan Documents, and shall have the rights
and obligations of a Bank thereunder.
Representations and Warranties. The Borrower
represents and warrants as follows:
(a) The execution and delivery of this First
Amendment, the Replacement Notes (as hereinafter defined),
the Competitive Bid Notes, and the Credit Agreement, as
modified by this First Amendment, and the performance of the
transactions contemplated hereby and thereby (i) are within
the corporate authority of the Borrower, (ii) have been duly
authorized by all necessary corporate proceedings on the
part of the Borrower, (iii) do not conflict with or result
in any material breach or contravention of any provision of
law, statute, rule or regulation to which the Borrower is
subject or any judgment, order, writ, injunction, license or
permit applicable to the Borrower so as to materially
adversely affect the assets, business or any activity of the
Borrower, and (iv) do not conflict with any provision of the
corporate charter or bylaws of the Borrower or any agreement
or other instrument binding upon the Borrower. There have
been no amendments to the charter documents or bylaws of the
Borrower since January 22, 1997.
(b) The execution and delivery of this First
Amendment, the Replacement Notes, the Competitive Bid Notes,
and the Credit Agreement, as modified by this First
Amendment, and the performance of the transactions
contemplated hereby and thereby will result in valid and
legally binding obligations of the Borrower party thereto
enforceable against the Borrower 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.
(c) The execution and delivery by the Borrower of this
First Amendment, the Replacement Notes, the Competitive Bid
Notes, and the Credit Agreement, as modified by this First
Amendment, and the consummation by the Borrower of the
transactions contemplated hereby and thereby do not require
any approval or consent of, or filing with, any governmental
agency or authority other than those already obtained.
(d) The representations and warranties contained in
the Credit Agreement or in any document or instrument
delivered pursuant to or in connection with the Credit
Agreement, the Replacement Notes, the Competitive Bid Notes,
or this First Amendment were true as of the date as of which
they were made and are true at and as of the Effective Date
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 the Credit Agreement and
changes occurring in the ordinary course of business which
singly or in the aggregate are not materially adverse, and
to the extent that such representations and warranties
relate expressly and solely to an earlier date).
(e) The Borrower has performed and complied with all
terms and conditions in the Credit Agreement and this First
Amendment required to be performed or complied with by it
prior to or at the Effective Date, and no Default or Event
of Default or condition which would result in a Default or
Event of Default has occurred and is continuing.
Ratification, etc. Except as expressly amended
hereby, the Credit Agreement, the other Loan Documents and
all documents, instruments and agreements related thereto
are hereby ratified and confirmed in all respects and shall
continue in full force and effect. This First Amendment and
the Credit Agreement shall hereafter be read and construed
together as a single document, and all references in the
Credit Agreement, any other Loan Document or any agreement
or instrument related to the Credit Agreement shall
hereafter refer to the Credit Agreement as amended by this
First Amendment.
GOVERNING LAW. THIS FIRST AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO CONFLICT
OF LAWS) AND SHALL TAKE EFFECT AS A SEALED INSTRUMENT IN
ACCORDANCE WITH SUCH LAWS.
Counterparts. This First Amendment may be
executed in any number of counterparts and by different
parties hereto on separate counterparts, each of which when
so executed and delivered shall be an original, but all of
which counterparts taken together shall be deemed to
constitute one and the same instrument.
Effectiveness. This First Amendment shall become
effective upon the satisfaction of each of the following
conditions (the "Effective Date"):
(a) This First Amendment shall have been executed and
delivered by the respective parties hereto;
(b) The Borrower shall have executed and delivered
(i) to each Assignor Bank a replacement Syndicated Note and
(ii) to each Assignee Bank a Syndicated Note, in each case
in substantially the form of Exhibit A to the Credit
Agreement and in an amount equal to such Bank's Commitment
Percentage (as reflected on Schedule 1 attached hereto)
multiplied by the Total Commitment (collectively, the
"Replacement Notes"), and (iii) to each Assignee Bank so
requesting, a Competitive Bid Note in substantially the form
of Exhibit B to the Credit Agreement;
(c) All corporate action necessary for the valid
execution and delivery by the Borrower of this First
Amendment, the Credit Agreement, as amended by this First
Amendment, the Replacement Notes, and the Competitive Bid
Notes, and the performance of the transactions contemplated
hereby and thereby shall have been taken, and satisfactory
evidence thereof shall have been provided to the
Administrative Agent; and
(d) The Administrative Agent shall have received a
favorable opinion addressed to the Administrative Agent
dated the Effective Date, in form and substance satisfactory
to the Administrative Agent, regarding the authority, the
due and valid execution and delivery, and the enforceability
of this First Amendment, the Replacement Notes, and the
Competitive Bid Notes.
Return of Old Notes. As soon as practicable after
the Effective Date, each Assignor Bank shall return to the
Borrower marked "Substituted" its Syndicated Note issued by
the Borrower to such Assignor Bank on the Closing Date.
IN WITNESS WHEREOF, each of the undersigned has duly
executed this First Amendment under seal as of the date
first set forth above.
THE BORROWER:
MILLIPORE CORPORATION
By:
Name:
Title:
THE BANKS AND AGENTS:
THE FIRST NATIONAL BANK OF
BOSTON, individually and as
Agent
By:
Elizabeth C. Everett
Director
ABN AMRO BANK N.V.
By:
Name:
Title:
By:
Name:
Title:
THE DAI-ICHI KANGYO
BANK, LTD.
By:
Name:
Title:
By:
Name:
Title:
THE SUMITOMO BANK, LIMITED
By:
Name:
Title:
By:
Name:
Title:
THE SAKURA BANK, LIMITED
NEW YORK BRANCH
By:
Name:
Title:
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:
Name:
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
Name:
Title:
By:
Name:
Title:
CREDIT LYONNAIS NEW YORK
BRANCH
By:
Name:
Title:
By:
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
Name:
Title:
By:
Name:
Title:
FLEET NATIONAL BANK
By:
Name:
Title:
By:
Name:
Title:
MELLON BANK, N.A.
By:
Name:
Title:
By:
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY
By:
Name:
Title:
By:
Name:
Title:
CITIZENS BANK OF MASSACHUSETTS
By:
Name:
Title:
By:
Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By:
Name:
Title:
By:
Name:
Title:
THE SANWA BANK, LIMITED
By:
Name:
Title:
By:
Name:
Title:
YASUDA TRUST & BANKING CO.
By:
Name:
Title:
By:
Name:
Title:
SCHEDULE 1
BANKS; COMMITMENT PERCENTAGES
BANK COMMITMENT PERCENTAGE
The First National Bank of
Boston
Domestic and Eurodollar 10.00000000%
Lending Office:
100 Federal Street
Boston, MA 02110
Attention: Elizabeth C.
Everett, Director
Fax Number: (617) 434-0819
ABN Amro Bank N.V.
Domestic and Eurodollar
Lending Office: 10.00000000%
One Post Office Square, 39th
Floor
Boston, MA 02109
Attention: Charles Wahle
Fax Number: (617) 988-7910
The Dai-Ichi Kangyo Bank,
Ltd.
Domestic and Eurodollar 4.44444444%
Lending Office:
One World Trade Center,
Suite 4911
New York, NY 10048
Attention: Tom Fennessey
Fax Number: (212) 524-0579
The Sumitomo Bank, Limited
Domestic and Eurodollar
Lending Office: 4.44444444%
U.S. Corporate Department
277 Park Avenue
New York, NY 10172
Attention: Angelo
Balestrieri
Fax Number: (212) 224-5188
The Sakura Bank, Limited
New York Branch
Domestic and Eurodollar 4.44444444%
Lending Office:
277 Park Avenue, 45th floor
New York, NY 10172
Attention: Shelly Yu
Fax Number: (212) 888-7651
The Chase Manhattan Bank
Domestic and Eurodollar
Lending Office: 8.70370370%
999 Broad Street
Bridgeport, CT 06604
Attention: David Nackley
Fax Number: (203) 382-6314
Bank of Tokyo-Mitsubishi
Trust Company
Domestic and Eurodollar 8.70370370%
Lending Office:
1251 Avenue of the Americas
New York, NY 10020-1104
Attention: Frederick Leone,
Esq.
Fax Number: (212) 782-6420
Credit Lyonnais New York
Branch
Domestic and Eurodollar 6.11111111%
Lending Office:
53 State Street
Boston, MA 02110
Attention: David O'Connell
Fax Number: (617) 723-4803
The Bank of Nova Scotia
Domestic and Eurodollar
Lending Office: 6.11111111%
101 Federal Street, 16th
floor
Boston, MA 02210
Attention: Mike Bradley
Fax Number: (617) 951-2177
Fleet National Bank
Domestic and Eurodollar
Lending Office: 8.70370370%
One Federal Street, MAOFO305
Boston, MA 02211
Attention: Amy Tsokanis
Fax Number: (617) 346-0590
Mellon Bank, N.A.
Domestic and Eurodollar
Lending Office: 4.44444444%
One Boston Place, Aim #024-
006A
Boston, MA 02108
Attention: Rita Long
Fax Number: (617) 722-7994
State Street Bank and Trust
Company
Domestic and Eurodollar 4.44444444%
Lending Office:
225 Franklin Street, M2
Boston, MA 02110
Attention: Fran Rust
Fax Number: (617) 664-3675
Citizens Bank of
Massachusetts
Domestic and Eurodollar 4.44444444%
Lending Office:
55 Summer Street, 4th floor
Boston, MA 02110
Attention: Bruce Bernier
Fax Number: (617) 422-8354
Morgan Guaranty Trust
Company of New York
Domestic and Eurodollar 4.44444444%
Lending Office:
60 Wall Street
New York, NY 10260
Attention: Deborah Brodheim
Fax Number: (212) 648-5018
The Sanwa Bank, Limited
Domestic and Eurodollar
Lending Office: 6.11111111%
Park Avenue Plaza
55 East 52nd Street
New York, NY 10055
Attention: Renko Hara
Fax Number: (212) 754-2368
For credit matters, please
copy correspondence to:
One Financial Center, 2812
Boston, MA 02111
Attention: Dale Edmunds
Fax Number: (617) 350-7212
Yasuda Trust & Banking Co.
Domestic and Eurodollar
Lending Office: 4.44444444%
666 5th Avenue
New York, NY 10103
Attention: Ken Nasto
Fax Number: (212) 373-5796
WAIVER TO
REVOLVING CREDIT AGREEMENT
WAIVER AGREEMENT (this "Waiver Agreement") TO THE
REVOLVING CREDIT AGREEMENT dated as of January 22, 1997, as
amended (the "Credit Agreement") made and entered into as of
February 18, 1997, by and among (a) MILLIPORE CORPORATION, a
Massachusetts corporation having its principal place of
business at 80 Ashby Road, Bedford, MA 01730-2271 (the
"Borrower"), (b) THE FIRST NATIONAL BANK OF BOSTON, a national
banking association with its head office at 100 Federal
Street, Boston, Massachusetts 02110 ("FNBB"), ABN AMRO BANK
N.V., with its Boston branch at One Post Office Square,
Boston, Massachusetts 02109 ("ABN"), and the other lending
institutions party thereto (collectively with FNBB and ABN,
the "Banks") and (c) THE FIRST NATIONAL BANK OF BOSTON, as
administrative agent for the Banks (the "Administrative
Agent") and ABN AMRO BANK N.V., as documentation agent for the
Banks (the "Documentation Agent," and collectively with the
Administrative Agent, the "Agents").
WHEREAS, the Agents and the Banks have agreed to waive
certain provisions of the Credit Agreement on the conditions
and for the period as hereinafter set forth;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. Capitalized terms used herein without
definition shall have the meanings ascribed to them in the
Credit Agreement.
2. Waiver of 7.18 of the Credit Agreement.
(a) Any Event of Default which would otherwise
occur under 7.18 as a result of the Borrower's failure to
amend the Note Purchase Agreement on or before February 20,
1997 is hereby waived, provided that the Note Purchase
Agreement shall be amended on or before March 21, 1997 and
provided further that until such amendment is effective or the
Note Purchase Agreement is terminated, the Borrower shall
ensure that $50,000,000 of the Total Commitment remains
available.
(b) The Agents, the Banks, and the Borrower further
agree that the Borrower may request an increase in the Total
Commitment, subject to the conditions set forth in 2.3(c) of
the Credit Agreement, as amended, in the event that the Note
Purchase Agreement is not amended on or before March 21, 1997.
3. Ratification, etc. Except as expressly waived or
amended hereby, the Credit Agreement, the other Loan Documents
and all documents, instruments and agreements related thereto
are hereby ratified and confirmed in all respects and shall
continue in full force and effect.
4. Counterparts. This Waiver Agreement may be executed
in any number of counterparts and by different parties hereto
on separate counterparts, each of which when so executed and
delivered shall be an original, but all of which counterparts
taken together shall be deemed to constitute one and the same
instrument. Complete sets of counterparts shall be lodged
with the Banks.
5. Effectiveness. This Waiver Agreement shall become
effective upon its execution and delivery by the respective
parties hereto.
IN WITNESS WHEREOF, each of the undersigned have duly
executed this Waiver Agreement under seal as of the date first
set forth above.
THE BORROWER:
MILLIPORE CORPORATION
By:
Jeffrey Rudin, Corporate Vice
President
THE BANKS AND AGENTS:
THE FIRST NATIONAL BANK OF BOSTON,
individually and as Agent
By:
Elizabeth C. Everett, Director
ABN AMRO BANK N.V., individually and
as Documentation Agent
By:
Carol A. Levine, Senior Vice
President
By:
Charles J. Wahle, Vice President
THE DAI-ICHI KANGYO
BANK, LTD.
By:
Thomas M. Fennessey
Assistant Vice President
THE SUMITOMO BANK, LIMITED
By:
John C. Kissinger, Joint General
Manager
THE SAKURA BANK, LIMITED
NEW YORK BRANCH
By:
Yasumasa Kikuchi, Senior Vice
President
THE CHASE MANHATTAN BANK
By:
David M. Nackley, Vice President
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
Patrick D. Bonebrake, Assistant
Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By:
Alain Papiasse, Executive Vice
President
THE BANK OF NOVA SCOTIA
By:
Terry M. Pitcher, Vice President
By:
Michael R. Bradley
Senior Relationship Manager
FLEET NATIONAL BANK
By:
Lisa S. Coney, Senior Vice
President
MELLON BANK, N.A.
By:
Rita C. Long, Vice President
STATE STREET BANK AND TRUST COMPANY
By:
Monica M. Sheehan, Vice President
CITIZENS BANK OF MASSACHUSETTS
By:
Bruce A. Bernier, Vice President
MORGAN GUARANTY TRUST COMPANY OF NEW
YORK
By:
Diana H. Imhof, Vice President
THE SANWA BANK, LIMITED
By:
Yutaka Higashino, Senior Vice
President
YASUDA TRUST & BANKING CO.
By:
Rohn Laudenschlager, Senior Vice
President
CREDITO ITALIANO SPA
By:
Harmon P. Butler, First Vice
President
By:
Saiyed A. Abbas, Assistant Vice
President