EXHIBIT 6(a)
Execution Copy
____________________________________________________________
____________________________________________________________
CHEMFAB CORPORATION
CREDIT AGREEMENT
Dated as of October 4, 1996
THE FIRST NATIONAL BANK OF BOSTON
THE BANK OF IRELAND
____________________________________________________________
____________________________________________________________
TABLE OF CONTENTS
1. Definitions; Certain Rules of Construction. . . . . . . . . . . . . . . 1
2. The Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1. Revolving Credit . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.1.1. Revolving Loan . . . . . . . . . . . . . . . . . . . . . . 16
2.1.2. Borrowing Requests . . . . . . . . . . . . . . . . . . . . 16
2.1.3. Revolving Notes . . . . . . . . . . . . . . . . . . . . . . 16
2.2. Term Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2.1. Term Loan . . . . . . . . . . . . . . . . . . . . . . . . . 17
2.2.2. Term Notes . . . . . . . . . . . . . . . . . . . . . . . . 17
2.3. Application of Proceeds . . . . . . . . . . . . . . . . . . . . . 17
2.3.1. The Revolving Loan . . . . . . . . . . . . . . . . . . . . 17
2.3.2. The Term Loan . . . . . . . . . . . . . . . . . . . . . . . 17
2.3.3. Specifically Prohibited Applications . . . . . . . . . . . 17
2.4. Nature of Obligations of Lenders to Extend Credit . . . . . . . . 18
3. Interest; Eurocurrency Pricing Options; Fees; etc. . . . . . . . . . . . 18
3.1. Loan Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 18
3.2. Eurocurrency Pricing Options . . . . . . . . . . . . . . . . . . . 18
3.2.1. Election of Eurocurrency Pricing Options . . . . . . . . . 18
3.2.2. Notice to Lenders and Borrowers. . . . . . . . . . . . . . 19
3.2.3. Selection of Eurocurrency Interest Periods . . . . . . . . 20
3.2.4. Additional Interest . . . . . . . . . . . . . . . . . . . . 20
3.2.5. Violation of Legal Requirements . . . . . . . . . . . . . . 21
3.2.6. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3.2.7. Funding Procedure . . . . . . . . . . . . . . . . . . . . . 21
3.3. Commitment Fee for Revolving Loan . . . . . . . . . . . . . . . . 22
3.4. Capital Adequacy . . . . . . . . . . . . . . . . . . . . . . . . . 22
3.5. Computations of Interest . . . . . . . . . . . . . . . . . . . . . 23
4. Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
4.1. Payment at Maturity . . . . . . . . . . . . . . . . . . . . . . . 23
4.2. Prepayment of Revolving Loan . . . . . . . . . . . . . . . . . . . 23
4.4. Voluntary Prepayments of Revolving Loan . . . . . . . . . . . . . 23
4.5. Reborrowing; Application of Payments . . . . . . . . . . . . . . . 24
5. Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.1. Conditions to Initial Extension of Credit . . . . . . . . . . . . 24
5.1.1. Revolving Notes . . . . . . . . . . . . . . . . . . . . . . 24
5.1.2. Reports and Other Documents. . . . . . . . . . . . . . . . 24
5.1.3. Legal Opinion . . . . . . . . . . . . . . . . . . . . . . . 24
5.2. Conditions to Extending Credit . . . . . . . . . . . . . . . . . . 25
5.2.1. Representations and Warranties; No Default; No Material
Adverse Change . . . . . . . . . . . . . . . . . . . . . . . . 25
5.2.2. Proper Proceedings . . . . . . . . . . . . . . . . . . . . 25
5.2.3. Legality, etc. . . . . . . . . . . . . . . . . . . . . . . 25
5.2.4. General . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6. General Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.1. Taxes and Other Charges . . . . . . . . . . . . . . . . . . . . . 26
6.2. Conduct of Business, etc. . . . . . . . . . . . . . . . . . . . . 26
6.2.1. Types of Business . . . . . . . . . . . . . . . . . . . . . 26
6.2.2. Maintenance of Properties; Compliance with Agreements, etc. 26
6.2.3. Statutory Compliance . . . . . . . . . . . . . . . . . . . 27
6.3. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
6.4. Financial Statements and Reports . . . . . . . . . . . . . . . . . 27
6.4.1. Annual Statements . . . . . . . . . . . . . . . . . . . . . 27
6.4.2. Quarterly Reports . . . . . . . . . . . . . . . . . . . . . 28
6.4.3. Other Reports . . . . . . . . . . . . . . . . . . . . . . . 29
6.4.4. Notice of Litigation; Notice of Defaults . . . . . . . . . 29
6.4.5. ERISA Reports . . . . . . . . . . . . . . . . . . . . . . . 29
6.4.6. Other Information . . . . . . . . . . . . . . . . . . . . . 30
6.5. Certain Financial Tests . . . . . . . . . . . . . . . . . . . . . 30
6.5.1. Debt Service Coverage . . . . . . . . . . . . . . . . . . . 30
6.5.2. Consolidated Net Loss . . . . . . . . . . . . . . . . . . . 31
6.5.3. Consolidated Total Liabilities to Consolidated Tangible Net 31
6.5.4. Consolidated Net Worth . . . . . . . . . . . . . . . . . . 31
6.6. Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.7. Guarantees; Letters of Credit . . . . . . . . . . . . . . . . . . 32
6.8. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.9. Investments and Acquisitions . . . . . . . . . . . . . . . . . . . 33
6.10. Distributions . . . . . . . . . . . . . . . . . . . . . . . . . . 34
6.11. Merger and Dispositions of Assets . . . . . . . . . . . . . . . . 35
6.12. ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
6.13. Transactions with Affiliates . . . . . . . . . . . . . . . . . . 35
6.14. Issuance of Stock by Subsidiaries; Subsidiary Distributions . . . 36
6.14.1. Issuance of Stock by Subsidiaries . . . . . . . . . . . . 36
6.14.2. No Restrictions on Subsidiary Distributions . . . . . . . 36
6.15. Limit on Capital Expenditures . . . . . . . . . . . . . . . . . . 36
7. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . 36
7.1. Organization and Business . . . . . . . . . . . . . . . . . . . . 36
7.1.1. The Borrower . . . . . . . . . . . . . . . . . . . . . . . 36
7.1.2. Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . 36
7.1.3. Qualification . . . . . . . . . . . . . . . . . . . . . . . 37
7.2. Financial Statements and Other Information; Certain Agreements . . 37
7.2.1. Financial Statements and Other Information . . . . . . . . 37
7.2.2. Certain Agreements . . . . . . . . . . . . . . . . . . . . 37
7.3. Changes in Condition . . . . . . . . . . . . . . . . . . . . . . . 38
7.4. Agreements Relating to Financing Debt, Investments, etc. . . . . . 38
7.5. Title to Assets . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.6. Licenses, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.7. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
7.8. Tax Returns . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
7.9. No Legal Obstacle to Agreements . . . . . . . . . . . . . . . . . 39
7.10. Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
7.11. Certain Business Representations . . . . . . . . . . . . . . . . 40
7.11.1. Environmental Compliance . . . . . . . . . . . . . . . . . 40
7.11.2. Burdensome Obligations . . . . . . . . . . . . . . . . . . 41
7.11.3. Future Expenditures . . . . . . . . . . . . . . . . . . . 41
7.12. Pension Plans . . . . . . . . . . . . . . . . . . . . . . . . . . 41
7.13. Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8. Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
8.1. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . 41
8.2. Certain Actions Following an Event of Default . . . . . . . . . . 44
8.2.1. No Obligation to Extend Credit . . . . . . . . . . . . . . 45
8.2.2. Specific Performance; Exercise of Rights . . . . . . . . . 45
8.2.3. Enforcement of Payment; Setoff . . . . . . . . . . . . . . 45
8.2.4. Acceleration . . . . . . . . . . . . . . . . . . . . . . . 45
8.2.5. Cumulative Remedies . . . . . . . . . . . . . . . . . . . . 45
8.3. Annulment of Defaults . . . . . . . . . . . . . . . . . . . . . . 45
8.4. Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9. Expenses; Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.1. Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
9.2. General Indemnity . . . . . . . . . . . . . . . . . . . . . . . . 47
9.3. Indemnity with Respect to Foreign Currency Transactions . . . . . 47
10. Operations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
10.1. Interests in Credits . . . . . . . . . . . . . . . . . . . . . . 48
10.2. Agent's Authority to Act . . . . . . . . . . . . . . . . . . . . 48
10.3. Borrower to Pay Agent, etc . . . . . . . . . . . . . . . . . . . 48
10.4. Lender Operations for Advances, etc . . . . . . . . . . . . . . . 48
10.4.1. Advances . . . . . . . . . . . . . . . . . . . . . . . . . 48
10.4.2. Agent to Allocate Payments . . . . . . . . . . . . . . . . 48
10.5. Sharing of Payments, etc. . . . . . . . . . . . . . . . . . . . . 49
10.6. Amendments, Consents, Waivers, etc . . . . . . . . . . . . . . . 49
10.7. Agent's Resignation . . . . . . . . . . . . . . . . . . . . . . . 49
10.8. Concerning the Agent . . . . . . . . . . . . . . . . . . . . . . 50
10.8.1. Action in Good Faith, etc . . . . . . . . . . . . . . . . 50
10.8.2. No Implied Duties, etc. . . . . . . . . . . . . . . . . . 50
10.8.3. Validity, etc. . . . . . . . . . . . . . . . . . . . . . . 50
10.8.4. Compliance . . . . . . . . . . . . . . . . . . . . . . . . 51
10.8.5. Employment of Agents and Counsel . . . . . . . . . . . . . 51
10.8.6. Reliance on Documents and Counsel . . . . . . . . . . . . 51
10.8.7. Agent's Reimbursement . . . . . . . . . . . . . . . . . . 51
10.9. Rights as a Lender . . . . . . . . . . . . . . . . . . . . . . . 52
10.10. Independent Credit Decision . . . . . . . . . . . . . . . . . . 52
10.11. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . 52
11. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . 53
11.1. Assignments by Lenders . . . . . . . . . . . . . . . . . . . . . 53
11.1.1. Assignees and Assignment Procedures . . . . . . . . . . . 53
11.1.2. Acceptance of Assignment and Assumption . . . . . . . . . 53
11.1.3. Federal Reserve Bank . . . . . . . . . . . . . . . . . . . 54
11.1.4. Further Assurances . . . . . . . . . . . . . . . . . . . . 54
11.2. Credit Participants . . . . . . . . . . . . . . . . . . . . . . . 54
12. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
13. Course of Dealing, Amendments and Waivers . . . . . . . . . . . . . . . 55
14. Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
15. Venue; Service of Process . . . . . . . . . . . . . . . . . . . . . . . 56
17. General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
EXHIBITS
Exhibit 1A - Foreign Currencies
Exhibit 2.1.3 - Form of Revolving Note
Exhibit 2.2.2 - Form of Term Note
Exhibit 5.2.1 - Form of Officer's Certificate
Exhibit 6.4.1 - Form of Annual Officer's Certificate
Exhibit 6.4.2 - Form of Quarterly Officer's Certificate
Exhibit 6.14.2 - Restrictions on Subsidiary Distributions
Exhibit 7.1 - The Borrower and its Subsidiaries
Exhibit 7.4 - Financing Debt, etc.
Exhibit 7.11.1 - Environmental Matters
Exhibit 10.1 - Percentage Interests
CHEMFAB CORPORATION
CREDIT AGREEMENT
This Credit Agreement, dated as of October 4, 1996 (the "Agreement"), is
among Chemfab Corporation, a Delaware corporation, The First National Bank of
Boston, in its capacity as a Lender and as Agent, and The Governor and Company
of the Bank of Ireland, a bank licensed under the Irish Central Bank Acts, 1942
to 1989 (the "Bank of Ireland"). The parties agree as follows:
1. Definitions; Certain Rules of Construction. Except as the context otherwise
explicitly requires, (i) the capitalized term "Section" refers to sections of
this Agreement, (ii) the capitalized term "Exhibit" refers to exhibits to this
Agreement, (iii) references to a particular Section shall include all
subsections thereof and (iv) the word "including" shall be construed as
"including without limitation". Certain capitalized terms are used in this
Agreement as specifically defined in this Section 1 as follows:
"Accumulated Plan Benefit Obligations" means the actuarial present value of
the accumulated plan benefit obligations under any Plan, calculated in a manner
consistent with Statement No. 87 of the Financial Accounting Standards Board.
"Affiliate" means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by or under direct or indirect common control
with such Person, and shall include (i) any officer or director or general
partner of such Person and (ii) any Person of which such Person or any Affiliate
(as defined in clause (i) above) of such Person shall, directly or indirectly,
beneficially own either at least 5% of the outstanding equity securities having
the general power to vote or at least 5% of all equity interests.
"Agent" means The First National Bank of Boston in its capacity as agent
for the Lenders hereunder, as well as its successors and assigns in such
capacity pursuant to Section 10.7.
"Agreed Currency" is defined in Section 9.3.
"Agreement has the meaning provided in the preamble hereto.
"Applicable Rate" means at any date, the sum of:
(a) (i) with respect to each portion of the Loan subject to a
Eurocurrency Pricing Option, the sum of 1.00% plus the Eurocurrency Rate
with respect to such Eurocurrency Pricing Option; and
(ii) with respect to each other portion of the Loan, the Base
Rate;
plus (b) an additional 2% effective on the day the Agent notifies the
Borrower that the interest rates hereunder are increasing as a result of
the occurrence and continuance of an Event of Default until the earlier of
such time as (i) such Event of Default is no longer continuing or (ii) such
Event of Default is deemed no longer to exist, in each case pursuant to
Section 8.3.
"Assignee" has the meaning provided in Section 11.1.1.
"Banking Day" means any day (other than Saturday or Sunday) on which banks
are open to conduct business in Boston, Massachusetts and Dublin, Ireland.
"Bankruptcy Code" means Title 11 of the United States Code (or any
successor statute) and the rules and regulations thereunder, all as from time to
time in effect.
"Bankruptcy Default" means an Event of Default referred to in Section
8.1.9.
"Base Rate" means, on any day, the greater of (i) the rate of interest
announced by the Agent at the Boston Office as its Base Rate or (ii) the sum of
1/2% plus the Federal Funds Rate.
"Borrower" means Chemfab Corporation, a Delaware corporation, and its
successors and assigns.
"Boston Office" means the principal banking office of the Agent in Boston,
Massachusetts.
"Capital Expenditures" means, for any period, amounts added or required to
be added to the fixed assets account on the balance sheet of the Borrower and
its Subsidiaries on a Consolidated basis, prepared in accordance with GAAP, in
respect of (i) the acquisition, construction, improvement or replacement of
land, buildings, machinery, equipment, leaseholds and any other real or personal
property, and (ii) to the extent not included in clause (i) above, expenditures
on account of materials, contract labor and direct labor relating thereto
(excluding expenditures properly expended as repairs and maintenance in
accordance with GAAP).
"Capitalized Lease" means any lease which is required to be capitalized on
the balance sheet of the lessee in accordance with GAAP and Statement Nos. 13
and 97 of the Financial Account Standards Board.
"Capitalized Lease Obligations" means the amount of the liability
reflecting the aggregate discounted amount of future payments under all
Capitalized Leases calculated in accordance with GAAP and Statement Nos. 13 and
97 of the Financial Accounting Standards Board.
"Cash Equivalents" means:
(i) negotiable certificates of deposit, time deposits and bankers'
acceptances issued by any United States financial institution having
capital and surplus and undivided profits aggregating at least $100,000,000
and rated Prime-1 by Moody's Investors Service, Inc. or A-1 by Standard &
Poor's Ratings Group or issued by any Lender;
(ii) short-term corporate obligations rated Prime-1 by Moody's
Investors Service, Inc. or A-1 by Standard & Poor's Ratings Group;
(iii) any direct obligation of the United States of America or any
agency or instrumentality thereof, or of any state or municipality thereof,
(a) which has a remaining maturity at the time of purchase of not more than
one year or (b) which is subject to a repurchase agreement with any Lender
(or any other financial institution referred to in clause (i) above)
exercisable within one year from the time of purchase and (c) which, in the
case of obligations of any state or municipality, is rated AA or better by
Moody's Investors Service, Inc.; and
(iv) any mutual fund or other pooled investment vehicle rated AA or
better by Moody's Investors Service, Inc. which invests only in obligations
described above.
"Chemfab Ireland Entities" means each of Chemfab Overseas Corporation,
Chemfab Holdings, Chemical Fabrics Ireland Limited, Chemfab Europe, Chemfab
Holdings U.K. Limited, Tygaflor Ltd and Fluorocarbon Fabrications Limited.
"Closing Date" means the Initial Closing Date and any subsequent date on
which any extension of credit is made pursuant to Section 2.1.1 or 2.2.1.
"Code" means, collectively, the federal Internal Revenue Code of 1986 (or
any successor statute), and the rules and regulations thereunder, all as from
time to time in effect.
"Computation Covenants" means Sections 6.5, 6.6.11, 6.9.3, 6.9.6, 6.11.1
and 6.15.
"Consolidated" and "Consolidating", when used with reference to any term,
mean that term (or the terms "combined" and "combining", as the case may be, in
the case of partnerships, joint ventures and Affiliates that are not
Subsidiaries) as applied to the accounts of the Borrower (or other specified
Person) and all of its Subsidiaries (or other specified Persons), or such of its
Subsidiaries as may be specified, consolidated (or combined) in accordance with
GAAP and with appropriate deductions for minority interests in Subsidiaries,
whether or not such deductions are required by GAAP.
"Consolidated Fixed Charges" means, for any period, the sum of:
(a) the aggregate amount of interest, including payments in the
nature of interest under Capitalized Leases, accrued by the Borrower and
its Subsidiaries (whether such interest is reflected as an item of expense
or capitalized) in accordance with GAAP on a Consolidated basis, plus
(b) the aggregate amount of all required or mandatory scheduled
payments, prepayments and sinking fund payments with respect to principal
paid or accrued by the Borrower and its Subsidiaries in respect of
Financing Debt.
"Consolidated Tangible Net Worth" means, at any date, the total of:
(a) stockholders' equity of the Borrower and its Subsidiaries
(excluding the effect of any foreign currency translation adjustments)
determined in accordance with GAAP on a Consolidated basis, minus
(b) the amount by which such stockholders' equity has been increased
by the write-up of any asset of the Borrower and its Subsidiaries, minus
(c) assets of the Borrower and its Subsidiaries that are considered
intangible assets under GAAP (including but not limited to customer lists,
goodwill and capitalized research and development costs).
"Consolidated Net Income" means, for any period, the net income (or loss)
of the Borrower and its Subsidiaries determined in accordance with GAAP on a
Consolidated basis; provided, however, that Consolidated Net Income shall not
include:
(a) the income (or loss) of any Person accrued prior to the date such
Person becomes a Subsidiary of the Borrower or is merged into or
consolidated with any Subsidiary of the Borrower;
(b) the income (or loss) of any Person (other than a Subsidiary) in
which the Borrower or any of its Subsidiaries has an ownership interest;
provided, however, that (i) Consolidated Net Income shall include amounts
in respect of the income of such Person when actually received in cash by
the Borrower or such Subsidiary in the form of dividends or similar
Distributions and (ii) Consolidated Net Income shall be reduced by the
aggregate amount of all Investments, regardless of the form thereof, made
by the Borrower or such Subsidiary in such Person for the purpose of
funding any deficit or loss of such Person;
(c) all amounts included in computing such net income (or loss) in
respect of the write-up of any asset or the retirement of any Indebtedness
at less than face value after June 30, 1996;
(d) the income of any Subsidiary of the Borrower to the extent the
payment of such income in the form of Distribution or repayment of
Indebtedness to the Borrower is not permitted, whether on account of any
Charter or By-law restriction, any agreement, instrument, deed or lease or
any law, statute, judgment, decree or governmental order, rule or
regulation applicable to such Subsidiary or otherwise; and
(e) any after-tax gains or losses attributable to returned surplus
assets of any Plan.
"Consolidated Net Loss" means, for any period, the amount, if any, by which
Consolidated Net Income is less than zero (expressed as a positive number).
"Consolidated Net Worth" means, at any date, the total of:
(a) stockholders' equity of the Borrower and its Subsidiaries
(excluding the effect of any foreign currency translation adjustments)
determined in accordance with GAAP on a consolidated basis, minus
(b) the amount by which such stockholders' equity has been increased
by the write-up of any asset of the Borrower and its Subsidiaries.
"Consolidated Operating Cash Flow" means, for any three month period, the
total of:
(a) Consolidated Net Income (without giving effect to any
extraordinary and non-recurring gains or losses) plus
(b) all amounts deducted in computing such Consolidated Net Income in
respect of:
(i) depreciation, amortization and other charges that are not
expected to be paid in cash;
(ii) interest of Financing Debt (including payments in the
nature of interest under Capitalized Leases); and
(iii) taxes based upon or measured by income; minus
(c) (i) cash taxes actually paid by the Borrower and its
Subsidiaries on a Consolidated basis and cash dividends actually paid by
the Borrower; and
(ii) the lesser of (A) $3,000,000 and (B) Capital Expenditures
for such period.
"Consolidated Total Liabilities" means, at any date, all Indebtedness of
the Borrower and its Subsidiaries on a Consolidated basis.
"Control Group Person" means the Borrower, any Subsidiary and any Person
which is a member of the controlled group or under common control with the
Borrower or any Subsidiary within the meaning of sections 414(b) or 414(c) of
the Code or section 4001(a)(14) of ERISA.
"Credit Documents" means
(i) this Agreement; and
(ii) all financial statements, reports, notices, assignments,
certificates or other similar documents delivered to any of the Lenders by
the Borrower in connection herewith or with any of the above;
(iii) any other present or future agreement or instrument from time
to time entered into among the Agent and any of the Lenders, on one hand,
and the Borrower or any Affiliate of the Borrower, on the other hand,
relating to, amending or modifying this Agreement or any other Credit
Document referred to above or which is stated to be a Credit Document, each
as from time to time in effect.
"Credit Obligations" means all present and future liabilities, obligations
and Indebtedness of the Borrower or any of its Affiliates party to a Credit
Document owing to the Lenders or any of them, or to the Agent or any Affiliate
of the Agent, under or in connection with this Agreement or any other Credit
Document, including obligations in respect of principal, interest, commitment
fees, and other fees, charges, indemnities and expenses from time to time owing
hereunder or under any other Credit Document.
"Credit Participant" has the meaning provided in Section 11.2.
"Default" means any Event of Default and any event or condition which with
the passage of time or giving of notice, or both, would become an Event of
Default.
"Distribution" means, with respect to any Person:
(i) the declaration or payment of any dividend, including
dividends payable in shares of capital stock of such Person, on or in
respect of any shares of any class of capital stock of such Person;
(ii) the purchase or redemption of any shares of any class of
capital stock of such Person (or of options, warrants or other rights
for the purchase of such shares), directly, indirectly through a
Subsidiary of such Person or otherwise;
(iii) any other distribution on or in respect of any shares
of any class of equity of or beneficial interest in such Person;
(iv) any payment of principal or interest with respect to, or any
purchase or redemption of, any Indebtedness of such Person which by
its terms is subordinated to the payment of the Credit Obligations;
and
(v) any payment, loan or advance (including any salary,
management fee or other fee, benefit, bonus or any other compensation
in respect of services provided to such Person or any lease payments)
by such Person to, or any other Investment by such Person in, the
holder of any shares of any class of the capital stock of or equity
interest in such Person.
provided, however, that the term "Distribution" shall not include (x) dividends
payable in perpetual common stock of or other similar equity interests in such
specified Person or (y) payments in the ordinary course of business by such
Person in respect of (A) reasonable compensation paid to its employees,
consultants, officers and directors, (B) advances and reimbursements to its
employees, consultants, officers and directors for travel expenses, drawing
accounts and similar expenditures or (C) rent paid to, or accounts payable for
services rendered or goods sold by, non-Affiliates that own capital stock of or
other equity interest in such specified Person.
"Equivalent Amount of United States Funds" means, as of any date, with
respect to a particular amount of Foreign Currency outstanding or to be borrowed
or paid at a particular place, an amount of United States Funds which will
enable the Agent to purchase such amount of Foreign Currency, computed at the
Agent's spot rate on such date at the place in question; provided, however, that
if no rate of exchange exists for effecting such spot purchases, the Equivalent
Amount of United States Funds shall mean the amount of United States Funds
equivalent to the actual cost to the Agent of obtaining the Foreign Currency in
the amount and at the place in question on such date.
"ERISA" means, collectively, the Employee Retirement Income Security Act of
1974 (or any successor statute), and the rules and regulations thereunder, all
as from time to time in effect.
"Eurocurrency" means, with respect to any Lender, deposits of United States
Funds or a Foreign Currency (whether traded pursuant to listed exchange rates on
a recognized inter-bank market or available only on a spot purchase basis) in a
non-United States office or an international banking facility of such Lender.
"Eurocurrency Basic Rate" means, for any Eurocurrency Interest Period, the
sum of (i) the rate of interest at which deposits in the designated Eurocurrency
as to which a Eurocurrency Pricing Option has been elected and which have a term
corresponding to such Eurocurrency Interest Period are offered to the Agent by
first class banks in the inter-bank Eurocurrency market (or if such Eurocurrency
is not available in an inter-bank market, on a spot purchase basis) for delivery
in immediately available funds at a Eurocurrency Office on the first day of such
Eurocurrency Interest Period plus (ii) any foreign exchange hedging costs
incurred by the Agent in connection with such Eurocurrency Pricing Option, each
as determined by the Agent at approximately 10:00 a.m. (Boston time) two Banking
Days prior to the date upon which such Eurocurrency Interest Period is to
commence (which determination by the Agent shall, in the absence of manifest
error, be conclusive).
"Eurocurrency Interest Period" means any period, selected as provided in
Section 3.2.3, of one, two, three or six months, commencing on any Banking Day
and ending on the corresponding date in the subsequent calendar month so
indicated (or, if such subsequent calendar month has no corresponding date, on
the last day of such subsequent calendar month); provided, however, that subject
to Section 3.2.4, if any Eurocurrency Interest Period so selected would
otherwise begin or end on a date which is not a Banking Day, such Eurocurrency
Interest Period shall instead begin or end, as the case may be, on the
immediately preceding or succeeding Banking Day as determined by the Agent in
accordance with the then current banking practice in the inter-bank Eurocurrency
market with respect to Eurocurrency deposits at the applicable Eurocurrency
Office, which determination by the Agent shall, in the absence of manifest
error, be conclusive.
"Eurocurrency Office" means such non-United States office or international
banking facility of any Lender as the Lenders may from time to time select.
"Eurocurrency Pricing Options" means the options granted pursuant to
Section 3.2.1 to have the interest on any portion of the Loan computed on the
basis of a Eurocurrency Rate.
"Eurocurrency Rate" means, for any Eurocurrency Interest Period, the rate,
rounded upward to the nearest 1/100%, obtained by dividing (a) the Eurocurrency
Basic Rate for such Eurocurrency Interest Period by (b) an amount equal to 1
minus the Eurocurrency Reserve Rate; provided, however, that if at any time
during such Eurocurrency Interest Period the Eurocurrency Reserve Rate
applicable to any outstanding Eurocurrency Pricing Option changes, the
Eurocurrency Rate for such Eurocurrency Interest Period shall automatically be
adjusted to reflect such change, effective as of the date of such change.
"Eurocurrency Reserve Rate" means the stated maximum rate (expressed as a
decimal) of all reserves (including any basic, supplemental, marginal or
emergency reserve or any reserve asset), if any, as from time to time in effect,
required by any Legal Requirement to be maintained by any Lender against (a)
"Eurocurrency liabilities" as specified in Regulation D of the Board of
Governors of the Federal Reserve System (or any successor regulation) applicable
to Eurocurrency Pricing Options, (b) any other category of liabilities that
includes Eurocurrency deposits by reference to which the interest rate on
portions of the Loan subject to Eurocurrency Pricing Options is determined, or
(c) the principal amount of or interest on any portion of the Loan subject to a
Eurocurrency Pricing Option.
"Event of Default" has the meaning provided in Section 8.1.
"Executive Officer" means the chief executive officer, chief operating
officer or president of the Borrower (or other specified Person) or any vice
president of the Borrower (or other specified Person) who is not a Financial
Officer.
"Federal Funds Rate" means, for any day, (i) the rate equal to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve Bank arranged by federal funds brokers, as such weighted average
is published for such day (or, if such day is not a Banking Day, for the
immediately preceding Banking Day) by the Federal Reserve Bank of New York or
(ii) if such rate is not so published for such Banking Day, the average of the
quotations for such day on such transactions received by the Agent from three
federal funds brokers of recognized standing selected by the Agent.
"Final Maturity Date" means October 4, 2003.
"Financial Officer" means the chief financial officer, controller or
treasurer of the Borrower (or other specified Person) or a vice president whose
primary responsibility is for the financial affairs of the Borrower (or other
specified Person).
"Financing Debt" means:
(i) Indebtedness for borrowed money;
(ii) Indebtedness evidenced by notes, bonds, debentures or similar
instruments;
(iii) Indebtedness in respect of Capitalized Leases;
(iv) Indebtedness for the deferred purchase price of assets (other
than normal trade accounts payable in the ordinary course of business); and
(v) Indebtedness in respect of mandatory redemption or mandatory
dividends on capital stock (or other equity interests).
"Foreign Currency" means, at any time, with respect to any portion of the
Loan made hereunder to the Borrower, such coin or currency of the country
specified for the Borrower in Exhibit 1A as at the time shall be legal tender
therein for the payment of public and private debts and which is freely
transferable and convertible into United States Funds or any other currency
requested in writing by the Borrower and agreed to by the Lenders; provided that
"Foreign Currency" shall not include the coin or currency of any country in
which the Borrower does not, at the time a Foreign Currency designation is
requested by the Borrower, have any trading activities.
"GAAP" means generally accepted accounting principles, as defined by the
United States Financial Accounting Standards Board, as from time to time in
effect; provided, however, that for purposes of compliance with Section 6 (other
than Section 6.4) and the related definitions, "GAAP" means such principles as
in effect on June 30, 1995 as applied by the Borrower in the preparation of the
financial statements referred to in Section 7.2.1, and consistently followed,
without giving effect to any subsequent changes other than changes consented to
in writing by the Agent.
"Guarantee" means:
(i) any guarantee by a Person of the payment or performance of, or
any contingent obligation by a Person in respect of, any Indebtedness or
other obligation of any obligor other than such Person;
(ii) any other arrangement whereby credit is extended to one obligor
on the basis of any promise or undertaking of another Person (including any
"comfort letter" or "keep well agreement" written by such other Person to a
creditor or prospective creditor) to (a) pay the Indebtedness of such
obligor, (b) purchase an obligation owed by such obligor, (c) pay for the
purchase or lease of assets or services regardless of the actual delivery
thereof or (d) maintain the capital, working capital, solvency or general
financial condition of such obligor, in each case whether or not such
arrangement is disclosed in the balance sheet of such other Person or
referred to in a footnote thereto;
(iii) any liability of a Person as a general partner of a partnership
in respect of Indebtedness or other obligations of such partnership;
(iv) any liability of a Person as a joint venturer of a joint venture
in respect of Indebtedness or other obligations of such joint venture; and
(v) reimbursement obligations with respect to letters of credit,
surety bonds and other financial guarantees;
provided, however, that the term "Guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business.
"Hazardous Material" means, collectively, any pollutant, toxic or hazardous
material or waste, including any "hazardous substance" or "pollutant" or
"contaminant" as defined in section 101(14) of the Comprehensive Environmental
Response, Compensation and Liability Act (or any successor statute) or regulated
as toxic or hazardous under the Resource Conservation and Recovery Act of 1976
or any similar state or local statute or regulation, and the rules and
regulations thereunder, all as from time to time in effect.
"Indebtedness" means all obligations, contingent or otherwise, which in
accordance with GAAP should be classified upon the obligor's balance sheet as
liabilities, but in any event including but not limited to:
(i) liabilities secured by any Lien existing on property owned or
acquired by the obligor or any Subsidiary thereof, whether or not the
liability secured thereby shall have been assumed;
(ii) Capitalized Lease Obligations;
(iii) liabilities in respect of mandatory redemption, repurchase or
dividend obligations with respect to capital stock (or other evidence of
beneficial interest); and
(iv) all Guarantees and endorsements in respect of Indebtedness of
others.
"Indemnitee" has the meaning provided in Section 9.2.
"Initial Closing Date" means October 4, 1996.
"Interest Expense" means, for any period, the aggregate amount of interest,
including payments in the nature of interest under Capitalized Leases, paid by
the Borrower (whether such interest is reflected as an item of expense or
capitalized) on Indebtedness.
"Investment" means, with respect to any Person:
(i) any share of capital stock, evidence of Indebtedness or other
security issued by any other Person;
(ii) any loan, advance or extension of credit to, or contribution to
the capital of, any other Person;
(iii) any Guarantee of the Indebtedness of any other Person;
(iv) any acquisition of all or any part of the business of any other
Person or the assets comprising such business or part thereof;
(v) any commitment or option to make any Investment if the
consideration for such commitment or option exceeds $100,000; and
(vi) any other similar investment.
The investments described in the foregoing clauses (i) through (vi) shall
be included in the term "Investment" whether they are made or acquired by
purchase, exchange, issuance of stock or other securities, merger,
reorganization or any other method; provided, however, that the term
"Investment" shall not include (a) current trade and customer accounts
receivable for goods furnished or services rendered in the ordinary course of
business and payable in accordance with customary trade terms, (b) advances and
prepayments to suppliers for goods and services in the ordinary course of
business, (c) advances to employees for travel expenses, drawing accounts and
similar expenditures, (d) stock or other securities acquired in connection with
the satisfaction or enforcement of Indebtedness or claims due to such Person or
as security for any such Indebtedness or claim, (e) demand deposits in banks or
trust companies or (f) cash Investments of the Borrower in Wholly Owned
Subsidiaries.
"Legal Requirement" means any present or future requirement imposed upon
any of the Lenders by any law, statute, rule, regulation, directive, order,
decree, guideline (or any interpretation thereof by courts or of administrative
bodies) of the United States of America or of Ireland, or any jurisdiction in
which any Eurocurrency Office is located, or by any state or political
subdivision of any of the foregoing, or by any board, governmental or
administrative agency, central bank or monetary authority of the United States
of America or of Ireland, of any jurisdiction in which any Eurocurrency Office
is located, or of any political subdivision of any of the foregoing; and any
such requirement not having the force of law shall be deemed to be a Legal
Requirement if any of the Lenders reasonably believes that compliance therewith
is standard commercial practice.
"Lenders" means The First National Bank of Boston, The Bank of Ireland and
other Persons from time to time owning a Percentage Interest and their
respective successors and assigns, including Assignees under Section 11.1.
"Lending Officer" shall mean Andrew T. Fay or other officers of the Agent
from time to time designated by it in writing to the Borrower.
"Lien" means, with respect to any Person:
(i) any encumbrance, mortgage, pledge, lien, charge or security
interest of any kind upon any property or assets of such Person, whether
now owned or hereafter acquired, or upon the income or profits therefrom;
(ii) any arrangement or agreement which prohibits such Person from
creating encumbrances, mortgages, pledges, liens, charges or security
interests;
(iii) the acquisition of, or the agreement or option to acquire, any
property or assets upon conditional sale or subject to any other title
retention agreement, device or arrangement (including a Capitalized Lease);
and
(iv) the sale, assignment, pledge or transfer for security of any
accounts, general intangibles or chattel paper of such Person, with or
without recourse.
"Loan" means the Revolving Loan and the Term Loan, as applicable.
"Majority Lenders" means such Lenders who together own at least 51% or more
of the Percentage Interests.
"Margin Stock" means "margin stock" within the meaning of Regulations G, T,
U or X (or any successor provisions) of the Board of Governors of the Federal
Reserve System, or any regulations, interpretations or rulings thereunder, all
as from time to time in effect.
"Material Adverse Change" means a material adverse change since June 30,
1996 in the business, assets, financial condition, income or prospects of the
Borrower (on an individual basis) or the Borrower and its Subsidiaries (on a
Consolidated basis), whether as a result of (i) general economic or weather
conditions affecting the industry in which the Borrower or any of its
Subsidiaries is engaged, (ii) difficulties in obtaining supplies and raw
materials, (iii) fire, flood or other natural calamities, (iv) environmental
claims, litigation, remediation or pollution, (v) regulatory changes, judicial
decisions, war or other governmental action, or (vi) any other event or
development, whether or not related to those enumerated above.
"Material Agreements" has the meaning provided in Section 7.2.2.
"Material Plan" means any Plan or Plans, collectively, as to which (i) the
excess of (a) the aggregate Accumulated Plan Benefit Obligations under such Plan
or Plans over (b) the aggregate fair market value of the assets of such Plan or
Plans allocable to such benefits, all determined as of the then most recent
valuation date or dates for such Plan or Plans, is greater than (ii) $500,000.
"Maximum Amount of Revolving Credit" means the lesser of (i) $20,000,000 in
an Equivalent Amount of United States Funds and (ii) such amount (in a minimum
amount of $1,000,000 in an Equivalent Amount of United States Funds and an
integral multiple of $500,000 in an Equivalent Amount of United States Funds)
lesser than the Maximum Amount of Revolving Credit then in effect as specified
by irrevocable notice from the Borrower to the Agent.
"Multiemployer Plan" means any Plan which is a "multiemployer plan" as
defined in section 4001(a)(3) of ERISA.
"Notes" means the Revolving Notes and the Term Notes.
"Payment Currency" is defined in Section 9.3.
"Payment Date" means the last Banking Day of each March, June, September
and December occurring after the Initial Closing Date.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
entity.
"Percentage Interest" has the meaning provided in Section 10.1.
"Permitted Acquisition" is defined in Section 6.9.6.
"Person" means any present or future natural person or any corporation,
association, partnership, joint venture, company, trust, business trust,
organization, business, individual or government or any governmental agency or
political subdivision thereof.
"Plan" means, at any time, any pension or other employee benefit plan
subject to Title IV of ERISA and/or Section 412 of the Code maintained (or to
which contributions have been made) by the Borrower, any of its Subsidiaries or
any Control Group Person within six years prior to such time.
"Revolver Conversion Date" means October 4, 1999.
"Revolving Loan" has the meaning provided in Section 2.1.1.
"Revolving Note" has the meaning provided in Section 2.1.3.
"Securities Act" means, collectively, the federal Securities Act of 1933
(or any successor statute) and the rules and regulations thereunder, all as from
time to time in effect.
"Subsidiary" means any Person of which the Borrower (or other specified
Person) shall at the time, directly or indirectly through one or more of its
Subsidiaries, (i) own at least 50% of the outstanding capital stock or issued
share capital (or other shares of beneficial interest) entitled to vote
generally, (ii) hold at least 50% of the partnership, joint venture or similar
interests or (iii) be a general partner or joint venturer with general
liability.
"Tax" means any present or future tax, levy, duty, impost, deduction,
withholding or other charges of whatever nature at any time required by any
Legal Requirement (a) to be paid by any Lender or (b) to be withheld or deducted
from any payment otherwise required hereby to be made to any Lender, in each
case on or with respect to its obligations hereunder, any payment in respect of
the Credit Obligations not included in the foregoing; provided, however, that
the term "Tax" shall not include taxes imposed upon or measured by the net
income of such Lender (other than withholding taxes).
"Term Loan" has the meaning provided in Section 2.2.1.
"Term Note" has the meaning provided in Section 2.2.2.
"United States Funds" means such coin or currency of the United States of
America as at the time shall be legal tender therein for the payment of public
and private debts.
"Wholly Owned Subsidiary" means any Subsidiary of which all the outstanding
capital stock (or other shares of beneficial interest) entitled to vote
generally (other than directors' qualifying shares) is owned by the Borrower (or
other Specified Person) directly, or indirectly through one or more Wholly Owned
Subsidiaries.
1. The Credit.
2.1 Revolving Credit.
2.1.1. Revolving Loan. Subject to all the terms and conditions of
this Agreement and so long as no Default exists, from time to time on and
after the Initial Closing Date and prior to the Revolver Conversion Date,
the Lenders will, severally in accordance with their respective Percentage
Interests, make Loans to the Borrower in such amounts and in such Foreign
Currency or United States Funds as may be requested by the Borrower in
accordance with Section 2.1.2. The sum of (a) the aggregate principal
amount of Loans made under this Section 2.1.1 at any one time outstanding
shall not at any time exceed the Maximum Amount of Revolving Credit. In no
event will the principal amount of Loans at any one time outstanding made
by any Lender pursuant to this Section 2.1 exceed the dollar amount of such
Lender's Percentage Interest. The aggregate principal amount of the loans
made pursuant to this Section 2.1.1 at any time outstanding is referred to
as the "Revolving Loan."
2.1.2. Borrowing Requests. The Borrower may from time to time
request a Loan under Section 2.1.1 on or after the Initial Closing Date and
prior to the Revolver Conversion Date by providing to the Agent a notice
(which may be given by a telephone call received by a Lending Officer if
promptly confirmed in writing). Such notice must be received not later
than noon (Boston time) on the first Banking Day (third Banking Day if any
portion of the Loan will be subject to a Eurocurrency Pricing Option on the
requested Closing Date) prior to the requested Closing Date for such Loan.
The notice must specify (a) the amount of the requested Loan, which shall
be not less than $100,000 in an Equivalent Amount of United States Funds
and an integral multiple of $100,000 in an Equivalent Amount of United
States Funds (or a similar integral multiple with respect to a Foreign
Currency), (b) whether such Loan will be in United States Funds or a
particular Foreign Currency and (c) the requested Closing Date therefor
(which shall be a Banking Day). Each such loan request by the Borrower
shall be deemed a representation by the Borrower that, immediately before
and immediately after giving effect to such Loan, no Event of Default
exists or shall result therefrom. Upon receipt of such notice prior to
noon (Boston time) on any Banking Day, the Agent shall inform each Lender,
by telephone or otherwise, prior to 5:00 p.m. (Boston time) on such date.
Each such Loan will be made at the Boston Office by depositing the amount
thereof to the general account of the Borrower with the Agent.
2.1.3. Revolving Notes. The Revolving Loan shall be evidenced by
notes in substantially the form of Exhibit 2.1.3 to this Agreement (the
"Revolving Notes") payable by the Borrower to each Lender. Each Lender
shall keep a record of the date and amount of (i) each loan made by such
Lender to the Borrower pursuant to Section 2.1.1 and (ii) each payment of
principal made by the Borrower pursuant to Section 4. Prior to the
transfer of any Revolving Note, the Lender shall endorse on a schedule
thereto appropriate notations evidencing such dates and amounts; provided,
however, that the failure of any Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower under this
Agreement, the Revolving Notes or any other Credit Document.
2.2. Term Credit.
2.2.1. Term Loan. Subject to all the terms and conditions hereof and
so long as no Default exists, on the Revolver Conversion Date the Lenders
will lend to the Borrower as a term loan, in accordance with their
respective Percentage Interests, an aggregate amount equal to the principal
amount of the Revolving Loan outstanding on such date, which shall not in
any event exceed the Maximum Amount of Revolving Credit. The aggregate
principal amount of the loans made pursuant to this Section 2.2.1 at any
time outstanding is referred to as the "Term Loan."
2.2.2. Term Notes. The Term Loan shall be made at the Boston Office
by crediting the amount of such loan to the Revolving Loan against delivery
to the Agent of the Term Notes in substantially the form of Exhibit 2.2.2
(the "Term Notes") payable to the respective Lenders. In connection with
the Term Loan, the Borrower shall furnish to the Agent a certificate in
substantially the form of Exhibit 5.2.1, together with any other documents
required by Section 5. Upon issuance of the Term Notes in accordance with
this Section 2.2, the Revolving Notes shall be deemed to be cancelled, and
shall be returned by the Lenders to the Borrower; provided, however, that
the failure of any Lender to return such Revolving Notes shall not affect
the obligations of the Borrower under this Agreement or any other Credit
Document.
2.3. Application of Proceeds.
2.3.1. The Revolving Loan. Subject to Section 2.3.3, the Borrower
will apply the proceeds of the Revolving Loan for strategic acquisitions,
share repurchases, working capital and other lawful corporate purposes or
expenditures.
2.3.2. The Term Loan. Subject to Section 2.3.3, the Borrower will
apply the proceeds of the Term Loan solely as provided in Section 2.2.2.
2.3.3. Specifically Prohibited Applications; Use of Proceeds. The
Borrower will not, directly or indirectly, apply any part of the proceeds
of any extension of credit made pursuant to this Agreement (i) to purchase
or carry Margin Stock or (ii) to any transaction prohibited by any laws or
regulations applicable to the Lenders.
2.4. Nature of Obligations of Lenders to Extend Credit. The Lenders'
obligations under this Agreement to make the Revolving Loan and Term Loan are
several and are not joint or joint and several. If any Lender shall fail to
perform its obligations to extend such credit, the amount of the commitment of
the Lender so failing to perform may be assumed by the other Lenders, in their
sole discretion, in such proportions as such Lenders may agree among themselves
and the Percentage Interests of each other Lender shall be appropriately
adjusted, but such failure or such assumption and adjustment shall not relieve
the Lenders from any of their obligations to make such extension of credit.
3. Interest; Eurocurrency Pricing Options; Fees; etc.
3.1. Loan Interest. The Loan shall accrue interest at a rate per annum
which shall at all times equal the Applicable Rate. Prior to any stated or
accelerated maturity of the Loan, the Borrower will, on each Payment Date, pay
the accrued and unpaid interest on the portion of the Loan which was not
subject to a Eurocurrency Pricing Option. On the last day of each Eurocurrency
Interest Period or on any earlier termination of any Eurocurrency Pricing
Option, the Borrower will pay the accrued and unpaid interest on the portion of
the Loan which was subject to the Eurocurrency Pricing Option which expired or
terminated on such date. In the case of any Eurocurrency Interest Period longer
than three months, the Borrower will also pay the accrued and unpaid interest on
the portion of the Loan subject to the Eurocurrency Pricing Option having such
Eurocurrency Interest Period at three-month intervals, the first such payment to
be made on the last Banking Day of the three-month period which begins on the
first day of such Eurocurrency Interest Period. On the stated or any
accelerated maturity of the Loan, the Borrower will pay all accrued and unpaid
interest on the Loan, including any accrued and unpaid interest on any portion
of the Loan which is subject to a Eurocurrency Pricing Option. In addition,
the Borrower will on demand pay interest on any overdue installments of
principal and, to the extent not prohibited by applicable law, on any overdue
installments of interest, fees and any other overdue amounts owed under any
Credit Document at a rate per annum equal to the sum of 2% plus the highest
Applicable Rate. All payments of interest on the Loan shall be made to the
Agent for the account of each Lender in accordance with such Lender's Percentage
Interest therein.
3.2. Eurocurrency Pricing Options.
3.2.1. Election of Eurocurrency Pricing Options. Subject to all of
the terms and conditions hereof and so long as no Default exists, the
Borrower may from time to time from after the Initial Closing Date and
prior to the Final Maturity Date, by irrevocable notice to the Agent
actually received not less than three Banking Days prior to the
commencement of the Eurocurrency Interest Period selected in such notice,
elect to have such portion of the Loan as the Borrower may specify in such
notice accrue daily interest during the Eurocurrency Interest Period so
selected at the Applicable Rate computed on the basis of the Eurocurrency
Rate. If the Borrower fails to elect a Eurocurrency Pricing Option for any
portion of the Loan which was previously subject to a Eurocurrency Pricing
Option for which a Foreign Currency designation is in effect, the Borrower
shall automatically be deemed to have elected a Eurocurrency Interest
Period of seven days with respect to such Eurocurrency Pricing Option. If,
on the Revolver Conversion Date, all or any portion of the Revolving Loan
is subject to one or more effective Eurocurrency Pricing Options, then,
unless the Borrower has elected otherwise, each such Eurocurrency Pricing
Option shall apply to an equal percentage of the Term Loan as it previously
constituted of the Revolving Loan until the expiration of the Eurocurrency
Interest Period then in effect with respect to such portion of the Loan.
In addition to the provisions of the preceding paragraph, no such
election shall become effective:
(a) if, prior to the commencement of any such Eurocurrency Interest
Period, any Lender determines that (i) the electing or granting of the
Eurocurrency Pricing Option in question would violate a Legal Requirement,
(ii) Eurocurrency deposits in the applicable currency, in an amount
comparable to the principal amount of the Loan as to which such
Eurocurrency Pricing Option has been elected and which have a term
corresponding to the proposed Eurocurrency Interest Period are not readily
available in the inter-bank Eurocurrency market, (iii) by reason of
circumstances affecting the inter-bank Eurocurrency market, adequate and
reasonable methods do not exist for ascertaining the interest rate
applicable to such deposits for the proposed Eurocurrency Interest Period
or (iv) if the proposed portion of the Loan is in any Foreign Currency,
any change in national or international financial, political or economic
conditions or currency exchange rates or exchange or currency controls
would, in the good faith opinion of such Lender, make it impracticable for
the proposed portion of the Loan to be made in such Foreign Currency; or
(b) if any Lender shall have advised the Agent by telephone or
otherwise at or prior to noon (Boston time) on the second Banking Day prior
to the commencement of such proposed Eurocurrency Interest Period (and
shall have subsequently confirmed in writing) that, after reasonable
efforts to determine the availability of such Eurocurrency deposits, such
Lender reasonably anticipates that Eurocurrency deposits in the applicable
currency, in an amount equal to the Percentage Interest of such Lender in
the portion of the Loan as to which such Eurocurrency Pricing Option has
been elected and which have a term corresponding to the Eurocurrency
Interest Period in question will not be offered in the Eurocurrency market
to such Lender at a rate of interest that does not exceed the anticipated
Eurocurrency Basic Rate.
3.2.2. Notice to Lenders and Borrowers. The Agent will inform each
Lender (by telephone or otherwise), on the same Banking Day if practicable,
of each notice received by it from the Borrower pursuant to Section 3.2.1
and of the Eurocurrency Interest Period specified in such notice. Upon
determination by the Agent of the Eurocurrency Rate for such Eurocurrency
Interest Period or in the event no such election shall become effective,
the Agent will promptly notify the Borrower requesting such Eurocurrency
Pricing Option and each Lender (by telephone or otherwise) of the
Eurocurrency Rate so determined or why such election did not become
effective.
3.2.3. Selection of Eurocurrency Interest Periods. Eurocurrency
Interest Periods shall be selected so that:
(a) the minimum portion of the Loan subject to any Eurocurrency
Pricing Option shall be $250,000 in an Equivalent Amount of United States
Funds and an integral multiple of $250,000 in an Equivalent Amount of
United States Funds (or a similar integral multiple with respect to a
Foreign Currency);
(b) no more than ten Eurocurrency Pricing Options shall be
outstanding at any one time; and
(c) no Eurocurrency Interest Period with respect to any part of the
Loan subject to a Eurocurrency Pricing Option shall expire later than the
Final Maturity Date.
3.2.4. Additional Interest. If any portion of the Loan subject to a
Eurocurrency Pricing Option is repaid, or any Eurocurrency Pricing Option
is terminated for any reason (including acceleration of maturity), on a
date which is prior to the last Banking Day of the Eurocurrency Interest
Period applicable to such Eurocurrency Pricing Option, the Borrower will
pay to the Agent for the account of each Lender in accordance with such
Lender's Percentage Interest in the Loan, in addition to any amounts of
interest otherwise payable hereunder, an amount equal to the present value
(calculated in accordance with this Section 3.2.4) of daily interest that
would have accrued during the unexpired portion of such Eurocurrency
Interest Period on the portion of the Loan so repaid, or as to which a
Eurocurrency Pricing Option was so terminated, at a per annum rate equal to
the excess, if any, of (a) the Eurocurrency Basic Rate applicable to such
Eurocurrency Pricing Option minus (b) the rate of interest readily
obtainable by the Agent upon the purchase of debt securities customarily
issued by the Treasury of the United States of America which have a
maturity date approximating the last Banking Day of such Eurocurrency
Interest Period. The present value of such additional interest shall be
calculated by discounting the daily amount of such interest for each day in
the unexpired portion of such Eurocurrency Interest Period from such day to
the date of such repayment or termination at a per annum interest rate
equal to the interest rate determined pursuant to clause (b) of the
preceding sentence, and by adding all such amounts for all such days during
such period. The determination by the Agent of such amount of interest
shall, in the absence of manifest error, be conclusive. For purposes of
this Section 3.2.4, if any portion of the Loan which was requested by the
Borrower to have been subject to a Eurocurrency Pricing Option is not
outstanding on the first day of the Eurocurrency Interest Period applicable
to such Eurocurrency Pricing Option other than for reasons described in
Section 3.2.1, the Borrower shall be deemed to have terminated such
Eurocurrency Pricing Option and the foregoing provisions of this Section
shall apply.
3.2.5. Violation of Legal Requirements. If any Legal Requirement
shall prevent any Lender from funding or maintaining through the purchase
of deposits in the interbank Eurocurrency market or the domestic
certificate of deposit market, as the case may be, any portion of the Loan
subject to a Eurocurrency Pricing Option or otherwise from giving effect to
such Lender's obligations as contemplated by Section 3.2, (a) the Agent may
by notice to the Borrower terminate all of the affected Eurocurrency
Pricing Options, (b) the portion of the Loan subject to such terminated
Eurocurrency Pricing Options shall immediately bear interest thereafter at
the Applicable Rate computed on the basis of the Base Rate and (c) the
Borrower shall make any payment required by Section 3.2.4.
3.2.6. Taxes. (a) If (i) any Lender shall be subject to any Tax or
(ii) the Borrower shall be required to withhold or deduct any Tax (except
to the extent such requirement arises as a result of the failure of the
Agent or any Lender to comply with Section 3.2.6(b)), the Borrower will on
demand by the Agent or such Lender, accompanied by the certificate referred
to below, pay to the Agent for such Lender's account such additional amount
as is necessary to enable such Lender to receive net of any Tax the full
amount of all payments of principal of, interest on and fees payable
pursuant to a Credit Document. Each Lender agrees that if, after the
payment by the Borrower of any such additional amount, any amount
identifiable as a part of any Tax related thereto is subsequently recovered
or used as a credit by such Lender, such Lender shall reimburse the
Borrower to the extent of the amount so recovered or used. A certificate
of an officer of such Lender setting forth the amount of such Tax or
recovery or use and the basis therefor shall, in the absence of manifest
error, be conclusive.
(b) Each Lender not incorporated under the laws of the United States
of America or any state thereof shall on the date hereof, or, if later, the
date on which such Lender becomes a Lender hereunder, deliver to the
Borrower such certificates, documents or other evidence as the Borrower may
reasonably request as may be necessary to establish, under any law
(including without limitation the Code) which may impose upon the Borrower
an obligation to withhold any portion of the payments made or to be made by
it under this Agreement or the Notes, that payments by the Borrower to such
Lender, or to the Agent for the account of such Lender, are not subject to
withholding. Notwithstanding any provision herein to the contrary, the
Borrower shall have no obligation to pay to the Agent or any Lender any
amount which the Borrower is liable to withhold due solely to the negligent
failure of the Agent or any Lender, as the case may be, to file any
statement of exemption required by the Code or any other such form or
statement which would have the effect of reducing or eliminating any
obligation upon the Borrower to withhold any portion of the payments made
or to be made by it under this Agreement or the Notes.
Without limiting the foregoing, in the event that any Tax is required to be
withheld from any payments by the Borrower to any Assignee (as defined in
Section 11.1.1 below), the amount payable by the Borrower for any period
pursuant to paragraph (a) above shall not in any event exceed the amount that
would have been payable for such period had the payments made by the Borrower
during such period been made instead to the initial Lender hereunder, as the
case may be, from which such Assignee's interest in the Loan shall have
originated.
3.2.7. Funding Procedure. The Lenders may fund any portion of the
Loan subject to a Eurocurrency Pricing Option out of any funds available to
the Lenders. Regardless of the source of the funds actually used by any of
the Lenders to fund any portion of the Loan subject to a Eurocurrency
Pricing Option, however, all amounts payable hereunder, including the
interest rate applicable to any such portion of the Loan and the amounts
payable under Sections 3.2 or 3.4., shall be computed as if each Lender had
actually funded such Lender's Percentage Interest in such portion of the
Loan through the purchase of deposits in such amount of the currency and
type by which the Eurocurrency Basic Rate was determined with a maturity
the same as the applicable Eurocurrency Interest Period relating thereto
and, in the case of a Eurocurrency Pricing Option, through the transfer of
such deposits from an office of the Lender having the same location as the
applicable Eurocurrency Office to one of such Lender's offices in the
United States of America.
3.3. Commitment Fee for Revolving Loan. In consideration of the Lenders'
commitments to make the extensions of credit provided for in Section 2.1, the
Borrower will pay to the Agent for the account of the Lenders in accordance with
their Percentage Interests, on each Payment Date prior to the Revolver
Conversion Date, and on the Revolver Conversion Date, an amount calculated on a
daily basis equal to 0.125% per annum on the amount by which (i) the Maximum
Amount of Revolving Credit exceeded (ii) the average daily Revolving Loan in the
Equivalent Amount of United States Funds during such period.
3.4. Capital Adequacy. If any Lender shall have determined that (a)
compliance by such Lender with any applicable law, governmental rule, regulation
or order regarding capital adequacy of banks or bank holding companies, or any
interpretation or administration thereof by any governmental authority, central
bank or comparable agency charged with interpretation administration thereof,
or compliance by such Lender with any request or directive regarding capital
adequacy (whether or not having the force of law and whether or not failure to
comply therewith would be unlawful) of any such authority, central bank or
comparable agency, or any regulation, directive or request of any authority of
the European Union, has or would have the effect of reducing the rate of return
on such Lender's (or any Person controlling such Lender) capital as a
consequence of such Lender's obligations hereunder to a level below that which
such Lender (or any Person controlling such Lender) could have achieved but for
such compliance (taking into consideration such Lender's policies with respect
to capital adequacy immediately before such compliance and assuming that such
Lender's capital was fully utilized prior to such compliance) by an amount
deemed by such Lender to be material, or (b) any change in any Legal Requirement
after the date hereof shall directly or indirectly (i) reduce the amount of any
sum received or receivable by such Lender with respect to the Loan, (ii) impose
a cost on such Lender that is attributable to the making or maintaining of, or
such Lender's commitment to make, its portion of the Loan, or (iii) require such
Lender to make any payment on or calculated by reference to the gross amount of
any amount received by such Lender under any Credit Document, then, in the case
of clause (a) and (b), the Borrower will on demand by the Agent, accompanied by
the certificate referred to below, pay to the Agent from time to time as
specified by such Lenders as are so affected such additional amounts as shall be
sufficient to compensate such Lenders (or any Person controlling such Lenders)
for such reduced return, reduction, increased cost or payment together with
interest on each such amount from five Banking Days after the date demanded
until payment in full thereof at the rate of interest on overdue installments of
principal provided in Section 3.1. A certificate of any officer of any such
Lender setting forth the amount to be paid to it and the basis for computation
thereof hereunder shall, in the absence of manifest error, be conclusive. In
determining such amount, such Lender may use any reasonable averaging and
attribution methods to allocate any increased costs in good faith on a
reasonably equitable basis.
3.5. Computations of Interest. For purposes of this Agreement, interest
(and any amount expressed as interest) shall be computed on a daily basis and
(a) with respect to any portion of the Loan subject to a Eurocurrency Pricing
Option, on the basis of a 360 day year and (b) with respect to commitment fees
and any other portion of the Loan, on the basis of a 365 or 366 day year, as the
case may be.
4. Payment.
4.1. Payment at Maturity. On the stated or any accelerated maturity of
the Revolving Loan or Term Loan, as the case may be, the Borrower will pay to
the Agent for the account of each Lender for credit to the Revolving Loan or
Term Loan, as the may be, an amount equal to the Indebtedness evidenced by the
applicable Notes then due, together with all accrued and unpaid interest thereon
and all other Credit Obligations then outstanding.
4.2. Prepayment of Revolving Loan. If at any time the Revolving Loan
exceeds the Maximum Amount of Revolving Credit, the Borrower will promptly pay
the amount of such excess to the Agent for the account of each Lender without
premium (except as provided in Section 3.2.4) for credit to the Revolving Notes.
4.3. Fixed Prepayment of Term Loan. On each Payment Date after the
Revolver Conversion Date and prior to the Final Maturity Date, the Borrower will
pay an aggregate of 5% of the Term Loan outstanding on the Revolver Conversion
Date to the Agent as a fixed prepayment of the Term Loan, together with accrued
interest on such amount prepaid, and a final payment on the Final Maturity Date
equal to 25% of the Term Loan outstanding on the Revolver Conversion Date;
provided, that in no event shall the amount of any such payment or prepayment
exceed the amount of the Term Loan outstanding at the time of such payment or
prepayment.
4.4. Voluntary Prepayments of Revolving Loan. In addition to the payment
or prepayments required by Sections 4.1, 4.2 and 4.3, the Borrower may from time
to time prepay all or any portion of the Loan (in a minimum amount of $100,000
in the Equivalent Amount of United States Funds and an integral multiple of
$50,000 in the Equivalent Amount of United States Funds), without premium
(except as provided in Section 3.2.4). With respect to such prepayment, the
Borrower shall give the Agent at least three Banking Days' prior notice of its
intention to prepay, specifying the date of payment, the total principal amount
of the Loan to be paid on such date and the amount of interest to be paid with
such prepayment.
4.5. Reborrowing; Application of Payments. The amounts of the Revolving
Loan prepaid pursuant to Sections 4.2 and 4.4 may be reborrowed from time to
time prior to the Revolver Conversion Date in accordance with Section 2.1. The
amounts of the Term Loan prepaid pursuant to Sections 4.3 or 4.4 may not be
reborrowed. All payments of principal with respect to the Loan hereunder shall
be made to the Agent for the account of each Lender in accordance with the
Lenders' respective Percentage Interests.
4.6. Currency of Payments. Any payment of principal of or interest on any
portion of the Credit Obligations shall be made in the currency in which such
portion of the Credit Obligations is denominated. All payments of fees,
indemnities, expenses and other amounts owing hereunder shall be made in United
States Funds.
5. Conditions.
5.1. Conditions to Initial Extension of Credit. The obligations of the
Lenders to make the initial extension of credit under Section 2 shall be subject
to the satisfaction, on or before the Initial Closing Date, of the conditions
set forth in this Section 5.1 and in Section 5.2.
5.1.1. Revolving Notes. The Borrower shall have executed this
Agreement and the Revolving Notes and delivered them to the Agent for each
Lender.
5.1.2. Reports and Other Documents. The Agent shall have received
the following, each in form and substance satisfactory to the Agent:
(i) the audited Consolidated balance sheet of the Borrower and
its Subsidiaries as at June 30, 1995 and Consolidated statements of
income and changes in shareholders' equity and cash flows of the
Borrower and its Subsidiaries for the fiscal year of the Borrower then
ended.
(ii) the internally prepared Consolidated balance sheet of the
Borrower and its Subsidiaries as at March 31, 1996 and Consolidated
statements of income and changes in shareholders' equity and cash
flows of the Borrower and its Subsidiaries for the fiscal quarter of
the Borrower then ended and for the portion of the fiscal year of the
Borrower then ended.
5.1.3. Legal Opinion. The Lenders shall have received from Bingham,
Dana & Gould LLP, special counsel for the Borrower, their opinion with
respect to the transactions contemplated by the Credit Documents, which
opinion shall be in form and substance satisfactory to the Lenders.
5.2. Conditions to Extending Credit. The obligations of the Lenders to
make any extension of credit pursuant to Section 2 shall be subject to the
satisfaction, on or before the Closing Date for such extension of credit, of the
conditions set forth in this Section 5.2.
5.2.1. Representations and Warranties; No Default; No Material
Adverse Change. The representations and warranties contained in Section 7
shall be true and correct on and as of the Closing Date with the same force
and effect as though originally made on and as of such date; no Default
shall exist on such Closing Date prior to or immediately after giving
effect to the requested extension of credit; as of such Closing Date, no
Material Adverse Change shall have occurred; and the Borrower shall have
furnished to the Agent on the Closing Date a certificate to these effects
(and, with respect to the Initial Closing Date, together with a schedule of
calculations demonstrating, as of the Initial Closing Date, compliance with
the financial tests set forth in Section 6.5), in substantially the form of
Exhibit 5.2.1, signed by an Executive Officer or a Financial Officer.
5.2.2. Proper Proceedings. This Agreement, each other Credit
Document and the transactions contemplated hereby and thereby shall have
been authorized by all necessary proceedings of the Borrower and any of its
Affiliates party thereto. All necessary consents, approvals and
authorizations of any governmental or administrative agency or any other
Person of any of the transactions contemplated hereby or by any other
Credit Document shall have been obtained and shall be in full force and
effect.
5.2.3. Legality, etc. The making of the requested extension of
credit on the Initial Closing Date shall not (i) subject any Lender to any
penalty or special tax, (ii) be prohibited by any law or governmental order
or regulation applicable to any Lender or any Obligor or (iii) violate any
voluntary credit restraint program of the executive branch of the
government of the United States of America, the Board of Governors of the
Federal Reserve System, any request or directive of the Central Bank of
Ireland or any authority of the European Union or any other governmental or
administrative agency so long as any Lender reasonably believes that
compliance therewith is in the best interests of such Lender.
5.2.4. General. All legal and corporate proceedings in connection
with the transactions contemplated by this Agreement and each other Credit
Document shall be satisfactory in form and substance to the Agent, and the
Lenders shall have received copies of all documents, including records of
corporate proceedings, appraisals and opinions of counsel, which any Lender
may have reasonably requested in connection therewith, such documents where
appropriate to be certified by proper corporate or governmental
authorities.
5.3. Conditions on the Revolver Conversion Date. In addition to the
conditions specified in Section 5.2, on the Revolver Conversion Date:
5.3.1. Term Notes. The Borrower shall have executed the Term Notes
pursuant to Section 2.2 and delivered them to the Agent.
6. General Covenants. The Borrower covenants that, until all of the Credit
Obligations shall have been paid in full and until the Lender's commitment to
extend credit under this Agreement and any other Credit Document shall have been
irrevocably terminated, it will comply with such of the following provisions:
6.1. Taxes and Other Charges. The Borrower and its Subsidiaries will duly
pay and discharge, or cause to be paid and discharged, before the same shall
become in arrears (or in conformity with customary trade terms, where
applicable) (i) all taxes, assessments and other governmental charges imposed
upon the Borrower or any of its Subsidiaries and its properties, sales or
activities, or upon the income or profits therefrom, (ii) all claims for labor,
materials or supplies which if unpaid might by law become a Lien upon any of its
property, and (iii) all accounts payable and other Indebtedness incident to its
operations; provided, however, that any such tax, assessment, charge, claim or
Indebtedness need not be paid if the validity or amount thereof shall at the
time be contested in good faith by appropriate proceedings and if the Borrower
shall, in accordance with GAAP, have set aside on its books adequate reserves
with respect thereto.
6.2. Conduct of Business, etc.
6.2.1. Types of Business. The Borrower will, and will cause its
Subsidiaries to, engage in (i) the business engaged in by the Borrower and
its Subsidiaries on the Initial Closing Date and businesses reasonably
related thereto and (ii) businesses engaged in by Persons acquired by, or
whose assets are acquired by, the Borrower or any of its Subsidiaries in a
Permitted Acquisition.
6.2.2. Maintenance of Properties; Compliance with Agreements, etc.
Each of the Borrower and its Subsidiaries will (i) keep its properties in
such repair, working order and condition, and from time to time make such
repairs, replacements, additions and improvements thereto as are necessary
for the efficient operation of their businesses and shall comply at all
times in all material respects with all franchises, licenses, leases and
other material agreements to which it is a party so as to prevent any loss
or forfeiture thereof or thereunder, unless compliance is at the time being
contested in good faith by appropriate proceedings or unless such losses or
forfeitures could not in the aggregate result in any Material Adverse
Change and (ii) do all things necessary to preserve, renew and keep in full
force and effect and in good standing its legal existence and authority
necessary to continue its business; provided, however, that this Section
6.2.2 shall not apply to assets or entities disposed of in transactions
permitted by Section 6.11.
6.2.3. Statutory Compliance. The Borrower and its Subsidiaries will
comply in all material respects with all valid and applicable statutes,
ordinances, zoning and building codes and other rules and regulations of
the United States of America, of the states and territories thereof and
their counties, municipalities and other subdivisions and of any foreign
country or other jurisdictions applicable to the Borrower or any of its
Subsidiaries, except where compliance therewith shall at the time be
contested in good faith by appropriate proceedings or where failure so to
comply could not in the aggregate result in any Material Adverse Change.
6.3. Insurance. The Borrower and its Subsidiaries will maintain at all
times, with financially sound and reputable insurers, insurance with respect to
its properties and business and against such casualties and contingencies in
such types and such amounts as shall be in accordance with sound business
practices and reasonably satisfactory to the Lenders. Such insurance will be
deemed satisfactory so long as each of the Borrower and its Subsidiaries (i)
keeps its physical property insured against fire and extended coverage risks in
amounts and with deductibles equal to those generally maintained by businesses
of similar size engaged in similar activities, (ii) maintains all such workers'
compensation or similar insurance as may be required by law, and (iii)
maintains, in amounts and with deductibles equal to those generally maintained
by businesses of similar size engaged in similar activities, general public
liability insurance against claims for bodily injury, death or property damage
occurring on, in or about the properties of the Borrower and its Subsidiaries,
and product liability insurance.
6.4. Financial Statements and Reports. The Borrower and its Subsidiaries
will maintain a system of accounting in which full and correct entries will be
made of all dealings and transactions in relation to their businesses and
affairs in accordance with GAAP. The fiscal year of the Borrower will end on
June 30 in each year.
6.4.1. Annual Statements. The Borrower will furnish to the Lenders
as soon as available and in any event within 120 days after the end of each
fiscal year, the Borrower's Annual Report on Form 10-K under the Securities
Exchange Act of 1934, as amended for such fiscal year, including
comparative figures for the preceding fiscal year, and accompanied by:
(i) unqualified reports or certificates of Ernst & Young LLP (or
independent certified public accountants of recognized standing
reasonably satisfactory to the Agent), which may be included in the
Form 10-K referred to above, to the effect that they have audited the
financial statements contained therein in accordance with GAAP and
that such financial statements present fairly, in all material
respects, the financial position of the Persons covered thereby at the
dates thereof and the results of their operations for the periods
covered thereby in conformity with GAAP;
(ii) the statement of such accountants that they have caused
this Agreement to be reviewed and that in the course of their audit of
the Borrower and its Subsidiaries nothing has come to their attention
to lead them to believe that any Default hereunder exists and in
particular that they have no knowledge of any Default under Sections
6.5 through 6.15 or, if such is not the case, specifying such Default
or possible Default and the nature thereof, it being understood that
the examination of such accountants cannot be relied upon to give them
knowledge of any such Default except as it relates to accounting or
auditing matters;
(iii) a certificate of the Borrower signed by a Financial
Officer substantially in the form of Exhibit 6.4.1 (a) to the effect
that such officer has caused this Agreement to be reviewed by the
Borrower and has no knowledge of any Default, or if such officer has
such knowledge, specifying such Default and the nature thereof, and
what action the Borrower or, as the case may be, its Subsidiary has
taken, is taking or proposes to take with respect thereto, (b) stating
what changes, if any, have occurred in GAAP since the date of the
financial statements described in Section 7.2.1, and (c) containing a
schedule of computations demonstrating, as of the close of such fiscal
year, compliance with the Computation Covenants; and
(iv) supplements to Exhibits 7.1 and 7.4 showing any changes in
the information set forth in such Exhibits during such fiscal year,
including whether any Subsidiary previously listed as "Dormant" on
Exhibit 7.1 has commenced any business operations.
6.4.2. Quarterly Reports. The Borrower will furnish to the Lenders
as soon as available and, in any event, within 60 days after the end of
each of the first three fiscal quarters of the Borrower, the Borrower's
quarterly report on Form 10-Q under the Securities Exchange Act of 1934, as
amended, accompanied by a certificate of the Borrower signed by a Financial
Officer substantially in the form of Exhibit 6.4.2:
(a) to the effect that such financial statements have been
prepared in accordance with GAAP and present fairly, in all material
respects, the financial position of the Borrower and its Subsidiaries
at the dates thereof and the results of their operations for the
periods covered thereby, subject only to normal year-end audit
adjustments and the addition of footnotes;
(b) to the effect that such officer has caused this Agreement to
be reviewed by the Borrower and has no knowledge of any Default, or if
such officer has such knowledge, specifying such Default and the
nature thereof and what action the Borrower has taken, is taking or
proposes to take with respect thereto, and
(c) containing a schedule of computations by the Borrower
demonstrating, as of the close of such fiscal quarter, compliance with
the Computation Covenants.
6.4.3. Other Reports. The Borrower will furnish to the Lenders:
(i) as soon as practicable but, in any event, within 20 Banking
Days after the issuance thereof, such registration statements, proxy
statements and reports, if any, as may be filed by the Borrower or any
Subsidiary with the Securities and Exchange Commission;
(ii) immediately after receipt, any 30-day letter or any 90-day
letter from the federal Internal Revenue Service asserting tax
deficiencies against the Borrower or any Subsidiary.
6.4.4. Notice of Litigation; Notice of Defaults. The Borrower will
promptly furnish to the Agent written notice of any litigation or any
administrative or arbitration proceeding to which the Borrower or any
Subsidiary may hereafter become a party which may involve any material risk
of any judgment which, after giving effect to any applicable insurance, may
result in a claim of more than $500,000 against the Borrower or any
Subsidiary, whether individually or collectively. Within five Banking Days
after acquiring knowledge thereof, the Borrower will notify the Lenders of
the existence of any Default, specifying the nature thereof and what action
the Borrower has taken, is taking or proposes to take with respect thereto.
6.4.5. ERISA Reports. The Borrower will:
(i) Furnish the Lenders with a copy of any request for a waiver
of the funding standards or an extension of the amortization period
required by sections 303 and 304 of ERISA or section 412 of the Code,
promptly after any Control Group Person submits such request to the
Department of Labor or the Internal Revenue Service;
(ii) Notify the Lenders of any reportable event (as defined in
section 4043 of ERISA), unless the notice requirement with respect
thereto has been waived by regulation, promptly after any Control
Group Person learns of such reportable event; and furnish the Lenders
with a copy of the notice of such reportable event required to be
filed with the PBGC, promptly after such notice is required to be
given;
(iii) Furnish the Lenders with a copy of any notice received by
any Control Group Person that the PBGC has instituted or intends to
institute proceedings under section 4042 of ERISA to terminate any
Plan, or that any Multiemployer Plan is insolvent or in reorganization
status under Title IV of ERISA, promptly after receipt of such notice;
(iv) Notify the Lenders of the possibility of the termination of
any Plan by its administrator pursuant to section 4041 of ERISA, as
soon as any Control Group Person learns of such possibility and in any
event prior to such termination; and furnish the Lenders with a copy
of any notice to the PBGC that a Plan is to be terminated, promptly
after any Control Group Person files a copy of such notice; and
(v) Notify the Lenders of the intention of the Borrower or any
Control Group Person to withdraw, in whole or in part, from any
Multiemployer Plan, prior to such withdrawal, and, upon any Lender's
request from time to time, of the extent of the liability, if any, of
such Person as a result of such withdrawal, to the best of such
Person's knowledge at such time.
6.4.6. Other Information. From time to time upon request of any
authorized officer of the Lenders, the Borrower will furnish to the Lenders
such other information regarding the business, affairs and condition,
financial or otherwise, of the Borrower and its Subsidiaries as such
officer may reasonably request, including copies of all licenses,
agreements, contracts, leases and instruments to which the Borrower or its
Subsidiaries is party. Upon a Default, the Lenders' authorized officers
and representatives shall have the right during normal business hours to
examine the books and records of the Borrower or its Subsidiaries, to make
copies, notes and abstracts therefrom and to make an independent
examination of its books and records, for the purpose of verifying the
accuracy of the reports delivered by any of the Borrower and its
Subsidiaries pursuant to this Section 6.4 or otherwise and ascertaining
compliance with this Agreement or any other Credit Document.
6.5. Certain Financial Tests.
6.5.1. Debt Service Coverage. On the last day of each fiscal quarter
of the Borrower, Consolidated Operating Cash Flow for the four quarter
period then ending shall equal or exceed 150% of Consolidated Fixed Charges
for such period.
6.5.2. Consolidated Net Loss. As of the last day of each month,
Consolidated Net Loss for the consecutive six month period then ending
shall not equal or exceed 5% of Consolidated Tangible Net Worth (measured
as of the first day of such six month period).
6.5.3. Consolidated Total Liabilities to Consolidated Tangible Net
Worth. Consolidated Total Liabilities shall at all times be less than 150%
of Consolidated Tangible Net Worth.
6.5.4. Consolidated Net Worth. Consolidated Net Worth shall at all
times equal or exceed $45,000,000; provided, however, that on the last day
of each fiscal year of the Borrower, beginning with the fiscal year ending
on June 30, 1997, such dollar amount shall be increased by an amount equal
to 50% of Consolidated Net Income (only if in excess of zero) for the
fiscal year then ended.
6.6. Indebtedness. The Borrower and its Subsidiaries will not create,
incur, assume or otherwise become or remain liable with respect to any
Indebtedness except the following:
6.6.1. Indebtedness in respect of the Credit Obligations.
6.6.2. Current liabilities, other than for Financing Debt and
operating leases, incurred in the ordinary course of business; provided,
however, that all such Indebtedness, including without limitation trade
payables, shall be paid in accordance with Section 6.1.
6.6.3. To the extent that payment thereof shall not at the time be
required by Section 6.1, Indebtedness in respect of taxes, assessments,
governmental charges and claims for labor, materials and supplies.
6.6.4. Indebtedness secured by Liens of carriers, warehousemen,
mechanics and landlords permitted by Sections 6.8.5 and 6.8.6.
6.6.5. Indebtedness in respect of judgments or awards (i) which have
been in force for less than the applicable appeal period, so long as
execution is not levied, or (ii) in respect of which the Borrower or its
Subsidiaries shall at the time in good faith be prosecuting an appeal or
proceedings for review, so long as execution thereof shall have been stayed
pending such appeal or review.
6.6.6. Indebtedness with respect to deferred compensation in the
ordinary course of business and Indebtedness with respect to employee
benefit programs (including liabilities in respect of deferred
compensation, pension or severance benefits, early termination benefits,
disability benefits, vacation benefits and tuition benefits) incurred in
the ordinary course of business.
6.6.7. Indebtedness in respect of customer advances and deposits,
deferred income, deferred taxes and other deferred credits arising in the
ordinary course of business.
6.6.8. Indebtedness in respect of inter-company loans and advances
among the Borrower and its Subsidiaries which are not prohibited by Section
6.9.
6.6.9. Indebtedness relating to deferred gains and deferred taxes
existing as of the Initial Closing Date or arising in connection with sale
of assets permitted under Section 6.12.
6.6.10. Indebtedness in respect of obligations outstanding on the
Initial Closing Date and described on Exhibit 7.4, and any renewals
thereof, but not any increase in the amount thereof.
6.6.11. Indebtedness in respect of a line of credit made available to
the Borrower in an aggregate amount outstanding not to exceed $1,000,000 at
any one time.
6.6.12. Indebtedness in respect of (a) overdraft facilities made
available to the Chemfab Ireland Entities in an aggregate outstanding
amount not to exceed 500,000 Punts at any one time and (b) a foreign
exchange line of credit made available to Chemfab Europe in an aggregate
outstanding amount not to exceed 300,000 Punts at any one time.
6.6.13. Other Indebtedness, not to exceed an aggregate amount of
$3,000,000 (including Indebtedness in respect of Guarantees and Capitalized
Lease Obligations or secured by purchase money security interests referred
to on Exhibit 7.4) in the Equivalent Amount of United States Funds at any
one time outstanding.
6.7. Guarantees; Letters of Credit. The Borrower and its Subsidiaries
will not become or remain liable with respect to any Guarantee, including
reimbursement obligations under letters of credit and other financing guarantees
by third parties, except in connection with Indebtedness permitted under any of
Sections 6.6.11 through 6.6.13.
6.8. Liens. The Borrower and its Subsidiaries will not (a) create, incur
or enter into, or (b) suffer to be created or incurred or to exist, any Lien
(including any arrangement or agreement which prohibits it from creating any
Lien), except the following:
6.8.1. Liens included in any Credit Document.
6.8.2. Liens to secure taxes, assessments and other governmental
charges, to the extent that payment thereof shall not at the time be
required by Section 6.1.
6.8.3. Deposits or pledges made (i) in connection with, or to secure
payment of, workers' compensation, unemployment insurance, old age pensions
or other social security, (ii) in connection with casualty insurance
maintained in accordance with Section 6.3, (iii) to secure the performance
of bids, tenders, contracts (other than contracts relating to Financing
Debt) or leases, (iv) to secure statutory obligations or surety or appeal
bonds, (v) to secure indemnity, performance or other similar bonds in the
ordinary course of business or (vi) in connection with contests to the
extent that payment thereof shall not at that time be required by Section
6.1.
6.8.4. Liens in respect of judgments or awards, to the extent that
such judgments or awards are permitted by Section 6.6.5.
6.8.5. Liens of carriers, warehousemen, mechanics and similar Liens
or deposits to secure the release thereof.
6.8.6. Encumbrances in the nature of (i) zoning restrictions, (ii)
easements, (iii) restrictions of record on the use of real property and
(iv) landlords' and lessors' Liens on rented premises, which in each case
do not materially detract from the value of the encumbered property or
impair the use thereof in the business of the Borrower.
6.8.7. Capitalized Lease Obligations incurred after the Initial
Closing Date and purchase money security interests in or purchase money
mortgages on real or personal property acquired after the Initial Closing
Date to secure purchase money Indebtedness to the extent permitted by
Section 6.6 incurred in connection with the acquisition of such property,
which security interests or mortgages cover only the real or personal
property so acquired and proceeds thereof and reasonable attachments and
accessories thereto.
6.8.8. Other existing Liens and Capitalized Lease Obligations
described on Exhibit 7.4 on the property secured by such Liens or the
subject of such Capitalized Lease as of the Initial Closing Date and any
renewals thereof, but not any increase in the amount thereof.
6.9. Investments and Acquisitions. The Borrower and its Subsidiaries will
not have outstanding, acquire, commit itself to acquire or hold any Investment
(including any Investment consisting of the acquisition of any business) except
for the following:
6.9.1. Investments in Cash Equivalents.
6.9.2. Trade or customer accounts or notes receivable for inventory
sold or leased or services rendered in the ordinary course of business.
6.9.3. Loans or advances to employees, agents and consultants in the
ordinary course of business, including, but not limited to, travel, payroll
and other expenses incurred in the ordinary course of business, not to
exceed $750,000 in the Equivalent Amount of United States Funds at any one
time.
6.9.4. Capital Expenditures to the extent permitted by Section 6.15.
6.9.5. Investments described on Exhibit 7.4.
6.9.6. So long as immediately before and after giving effect thereto
no Default exists, acquisitions by the Borrower of businesses or assets,
whether by acquisition of stock, assets or by merger; provided, however,
that (a) the Borrower will provide at least 30 days notice to the Lenders
prior to such acquisition; (b) if the aggregate consideration paid by the
Borrower with respect to such acquisition is greater than $5,000,000 in the
Equivalent Amount of United States Funds, then, in addition to the
requirements of subsection (a) of this Section, the Borrower shall
demonstrate, based on a calculation methodology reasonably satisfactory to
the Agent and certified by a Financial Officer of the Borrower, prospective
compliance on a Consolidated basis by the Borrower and its Subsidiaries and
the company or entity acquired pursuant to the relevant acquisition with
Section 6.5 for the twelve month period beginning on the date of such
acquisition; and (c) if the aggregate consideration paid by the Borrower
with respect to such acquisition is greater than $10,000,000 in the
Equivalent Amount of United States Funds, then, in addition to the
requirements of subsections (a) and (b) of this Section, the business or
assets so acquired shall, in the opinion of the Lenders, be engaged in
activities engaged in by the Borrower and its Subsidiaries on the Initial
Closing Date and businesses reasonably related thereto. Acquisitions by
the Borrower pursuant to and in compliance with this Section 6.9.6 are
referred to as "Permitted Acquisitions".
6.9.7. Investments by the Borrower in the equity interests of Nitto
Chemfab Co., Ltd. not owned by the Borrower as of the date of this
Agreement.
6.10. Distributions. The Borrower and its Subsidiaries shall not make any
Distribution except for the following:
6.10.1. Subsidiaries of the Borrower may make Distributions to the
Borrower or any Wholly Owned Subsidiary of the Borrower.
6.10.2. So long as immediately before and after giving effect
thereto, no Default exists, each of the Borrower and its Subsidiaries may
declare and pay dividends to its stockholders.
6.10.3. So long as immediately before and after giving effect
thereto, no Default exists, the Borrower may purchase, redeem or otherwise
retire any shares of any class of capital stock or other equity interests
of the Borrower.
6.11. Merger and Dispositions of Assets. The Borrower and its
Subsidiaries will not become a party to any merger or consolidation and will not
sell, sell and lease back, lease, sublease or otherwise dispose of any of its
assets; provided, however, that so long as immediately prior to and after giving
effect thereto there shall exist no Default:
6.11.1. The Borrower and its Subsidiaries may sell or otherwise
dispose of (i) inventory in the ordinary course of business, (ii) tangible
assets to be replaced in the ordinary course of business by other assets of
equal or greater value and (iii) tangible assets no longer used or useful
in the business of the Borrower; provided, however, that the aggregate fair
market value (or book value, if greater) of the assets sold or disposed of
pursuant to this clause (iii) shall not in any fiscal year exceed 10% of
the Borrower's Consolidated total assets determined in accordance with GAAP
on a Consolidated basis as of the first day of such fiscal year; and
provided, further, that in no event shall the Borrower or any of its
Subsidiaries be permitted to sell or otherwise dispose of any equity
interests in any Subsidiary other than pursuant to a transfer to the
Borrower or a Wholly Owned Subsidiary of the Borrower.
6.11.2. The Borrower may engage in acquisitions permitted by Section
6.9.
6.12. ERISA. Each of the Borrower and its Subsidiaries will meet, and
will cause all Control Group Persons to meet, all minimum funding requirements
applicable to them with respect to any Plan pursuant to section 302 of ERISA or
section 412 of the Code, without giving effect to any waivers of such
requirements or extensions of the related amortization periods which may be
granted. Each of the Borrower and its Subsidiaries will comply, and will cause
all Control Group Persons to comply, in all material respects, with the
provisions of ERISA and the Code applicable to each Plan. At no time shall the
Accumulated Plan Benefit Obligations under any Plan that is not a Multiemployer
Plan exceed the fair market value of the assets of such Plan allocable to such
benefits by more than $2,000,000.
6.13. Transactions with Affiliates. The Borrower and its Subsidiaries
shall not effect any transaction with any of their Affiliates (except for the
Borrower and its Subsidiaries) on a basis less favorable to the Borrower and its
Subsidiaries than would be the case if such transaction had been effected with a
non-Affiliate.
6.14. Issuance of Stock by Subsidiaries; Subsidiary Distributions.
6.14.1. Issuance of Stock by Subsidiaries. No Subsidiary shall issue
or sell any shares of its capital stock or other evidence of beneficial
ownership to any Person other than a Borrower or any Wholly Owned
Subsidiary of the Borrower.
6.14.2. No Restrictions on Subsidiary Distributions. Except for the
restrictions contained in the Credit Documents and as otherwise set forth
on Exhibit 6.14.2, neither the Borrower nor any Subsidiary shall enter into
or be bound by any agreement (including covenants requiring the maintenance
of specified amounts of net worth or working capital) restricting the right
of any Subsidiary to make Distributions or extensions of credit to a
Borrower (directly or indirectly through another Subsidiary).
6.15. Limit on Capital Expenditures. The Borrower and its Subsidiaries
will not make Capital Expenditures exceeding $10,000,000 (excluding Permitted
Acquisitions pursuant to Section 6.9.6) in the Equivalent Amount of United
States Funds in the aggregate in any calender year.
7. Representations and Warranties. In order to induce the Lenders to extend
credit to the Borrower hereunder, the Borrower represents and warrants that:
7.1. Organization and Business.
7.1.1. The Borrower. The Borrower is a duly organized and validly
existing corporation, in good standing, under the laws of Delaware, with
all power and authority, corporate or otherwise, necessary to (i) enter
into and perform this Agreement and each other Credit Document to which it
is party, and (ii) own its properties and carry on the business now
conducted or proposed to be conducted by it. The Borrower has taken all
corporate action required to execute, deliver and perform this Agreement
and each other Credit Document to which it is party. Certified copies of
the charter and by-laws of the Borrower have been previously delivered to
the Agent and are correct and complete. Exhibit 7.1, as from time to time
hereafter supplemented in accordance with Section 6.4 or otherwise by
written notice to the Lenders, sets forth (a) the jurisdiction of
incorporation of the Borrower, (b) the address of the Borrower's chief
executive office and chief place of business and (c) the name under which
the Borrower conducts its business and the jurisdictions in which the name
is used.
7.1.2. Subsidiaries. Each Subsidiary of the Borrower is duly
organized, validly existing and in good standing under the laws of the
jurisdiction in which it is organized, with all power and authority,
corporate or otherwise, necessary to own its properties and carry on the
business now conducted or proposed to be conducted by it. Certified copies
of the Charter and By-laws of each of the Chemfab Ireland Entities have
been previously delivered to the Agent and are correct and complete.
Exhibit 7.1, as from time to time hereafter supplemented in accordance with
Section 6.4, sets forth, as of June 30, 1996 and thereafter as of the end
of the most recent fiscal year or quarter for which such financial
statements are required to be furnished, (i) the name and jurisdiction of
organization of each Subsidiary, (ii) the address of the chief executive
office and principal place of business of each Subsidiary, (iii) each name
under which each Subsidiary conducts its business and the jurisdictions in
which each such name is used, (iv) whether any such Subsidiary, by virtue
of not conducting any business operations, is dormant and (v) the number of
authorized and issued shares and ownership of each such Subsidiary.
7.1.3. Qualification. Except as set forth on Exhibit 7.1, each of
the Borrower and its Subsidiaries is duly and legally qualified to do
business as a foreign corporation and is in good standing in each state or
jurisdiction in which such qualification is required and is duly
authorized, qualified and licensed under all laws, regulations, ordinances
or orders of public authorities, or otherwise, to carry on its business in
the places and in the manner in which it is conducted, except for failures
to be so qualified, authorized or licensed which would not in the aggregate
result, or pose a material risk of resulting, in any Material Adverse
Change.
7.2. Financial Statements and Other Information; Certain Agreements.
7.2.1. Financial Statements and Other Information. The Borrower has
previously furnished to the Lenders copies of the Consolidated balance
sheet of the Borrower and its Subsidiaries as at June 30, 1996, and the
Consolidated statements of income and Consolidated statement of changes in
shareholders' equity and cash flows of the Borrower and its Subsidiaries
for the fiscal year of the Borrower then ended.
The Consolidated financial statements (including the notes thereto)
referred to above were prepared in accordance with GAAP and fairly present
the financial position of the Persons covered thereby at the respective
dates thereof and the results of their operations for the periods covered
thereby. Neither the Borrower nor any of its Subsidiaries has any known
material contingent liability which is not reflected in the most recent
balance sheet referred to above or the notes thereto.
7.2.2. Certain Agreements. The Borrower has previously furnished to
the Lenders correct and complete copies, including all exhibits, schedules
and amendments thereto, of the following agreements, each as in effect on
the Initial Closing Date (the "Material Agreements"):
(a) Nitto Chemfab Joint Venture Agreement.
7.3. Changes in Condition. No Material Adverse Change has occurred, and
since June 30, 1995 the Borrower has not entered into any material transaction
outside the ordinary course of business except for the transactions contemplated
by this Agreement and the other Material Agreements.
7.4. Agreements Relating to Financing Debt, Investments, etc. Exhibit
7.4, as from time to time hereafter supplemented in accordance with Section 6.4
or otherwise by written notice to the Lenders, sets forth (i) the amounts (as of
the dates indicated in Exhibit 7.4, as so supplemented) of all Financing Debt of
the Borrower and all agreements which relate to such Financing Debt, (ii) all
Liens and Guarantees with respect to such Financing Debt and (iii) all
agreements which directly or indirectly require the Borrower to make any
Investment. The Borrower has furnished the Agent with correct and complete
copies of any agreements described in clauses (i), (ii) and (iii) above
requested by the Lenders.
7.5. Title to Assets. The Borrower and its Subsidiaries have good and
marketable title to all assets necessary for or used in the operations of their
respective businesses as now conducted or proposed to be conducted by them and
reflected in the most recent balance sheet referred to in Section 7.2.1 (or the
balance sheet most recently furnished to the Lenders pursuant to Sections 6.4.1
or 6.4.2 or otherwise by written notice to the Lenders), and to all assets
acquired subsequent to the date of such balance sheet, subject to no Liens
except for those permitted by Section 6.8 and except for assets disposed of as
permitted by Section 6.11.
7.6. Licenses, etc. The Borrower and its Subsidiaries have all patents,
patent applications, patent licenses, patent rights, trademarks, trademark
rights, trade names, trade name rights, copyrights, licenses, franchises,
permits, authorizations and other rights as are necessary for the conduct of its
business as now conducted or proposed to be conducted by it. All of the
foregoing are in full force and effect, and the Borrower and its Subsidiaries
are in substantial compliance with the foregoing without any known conflict with
the valid rights of others which has resulted, or poses a material risk of
resulting, in any Material Adverse Change. No event has occurred which permits,
or after notice or lapse of time or both would permit, the revocation or
termination of any such license, franchise or other right or affect the rights
of the Borrower or any of its Subsidiaries thereunder so as to result in any
Material Adverse Change. There is no litigation or other proceeding or dispute
with respect to the validity or, where applicable, the extension or renewal, of
any of the foregoing which has resulted, or poses a material risk of resulting,
in any Material Adverse Change.
7.7. Litigation. No litigation, at law or in equity, or any proceeding
before any court, board or other governmental or administrative agency or any
arbitrator is pending or, to the knowledge of the Borrower, threatened which may
involve any material risk of any final judgment, order or liability which, after
giving effect to any applicable insurance, has resulted, or poses a material
risk of resulting, in any Material Adverse Change or which seeks to enjoin the
consummation, or which questions the validity, of any of the transactions
contemplated by this Agreement or any other Credit Document. No judgment,
decree or order of any court, board or other governmental or administrative
agency or any arbitrator has been issued against or binds the Borrower or any
Subsidiary which has resulted, or poses a material risk of resulting, in any
Material Adverse Change.
7.8. Tax Returns. Each of the Borrower and its Subsidiaries has filed all
material tax and information returns which are required to be filed by it and
has paid, or made adequate provision for the payment of, all taxes which have or
may become due pursuant to such returns or to any assessment received by it.
The Borrower knows of no material additional assessments or any basis therefor.
The Borrower reasonably believes that the charges, accruals and reserves on the
books of the Borrower and its Subsidiaries in respect of taxes or other
governmental charges are adequate.
7.9. No Legal Obstacle to Agreements. Neither the execution and delivery
of this Agreement or any other Credit Document, nor the making of any borrowings
hereunder, nor the consummation of any transaction referred to in or
contemplated by this Agreement or any other Credit Document, nor the fulfillment
of the terms hereof or thereof or of any other agreement, instrument, deed or
lease referred to in this Agreement or any other Credit Document, has
constituted or resulted in or will constitute or result in:
(i) any breach or termination of the provisions of any agreement,
instrument, deed or lease to which the Borrower or any Subsidiary is a
party or by which it is bound, or of the charter or by-laws of the
Borrower;
(ii) the violation of any law, statute, judgment, decree or
governmental order, rule or regulation applicable to the Borrower or any
Subsidiary;
(iii) except as set forth in the Credit Documents, the creation under
any agreement, instrument, deed or lease of any Lien upon any of the assets
of the Borrower or any of its Subsidiaries; or
(iv) any redemption, retirement or other repurchase obligation of the
Borrower under any charter, by-law, agreement, instrument, deed or lease.
No approval, authorization or other action by, or declaration to or filing with,
any governmental or administrative authority or any other Person is required to
be obtained or made by the Borrower in connection with the execution, delivery
and performance of this Agreement, the Notes or any other Credit Document, the
transactions contemplated hereby or thereby or the making of any borrowing
hereunder which has not been obtained or made prior to the Initial Closing Date.
7.10. Defaults. Neither the Borrower nor any Subsidiary is in default
under any provision of its charter or by-laws or of this Agreement or any other
Credit Document. Neither the Borrower nor any Subsidiary is in default under
any provision of any agreement, instrument, deed or lease to which it is party
or by which it or its property is bound, or has violated any law, judgment,
decree or governmental order, rule or regulation, so as to result, or pose a
material risk of resulting, in any Material Adverse Change.
7.11. Certain Business Representations.
7.11.1. Environmental Compliance. Except as set forth on Exhibit
7.11.1,
(i) each of the Borrower and its Subsidiaries is in compliance in all
material respects with the Clean Air Act, the Federal Water Pollution
Control Act, the Marine Protection Research and Sanctuaries Act, the
Resource Conservation and Recovery Act of 1976, the Comprehensive
Environmental Response, Compensation and Liability Act and any similar
state or local statute or regulation in effect in any jurisdiction in which
any properties of the Borrower or any Subsidiary are located or where any
of them conducts its business, and with all applicable published rules and
regulations (and applicable standards and requirements) of the United
States Environmental Protection Agency and of any similar agencies in
states or foreign countries in which the Borrower or its Subsidiaries
conducts its business other than those which in the aggregate could not
result in a Material Adverse Change.
(ii) no suit, claim, action or proceeding, of which the Borrower has
been given notice or otherwise to its knowledge, is now pending before any
court, governmental agency or board or other forum, or to the Borrower's
knowledge, threatened by any Person (nor to the Borrower's knowledge, does
any factual basis exist therefor) for, and neither the Borrower nor any of
its Subsidiaries has received any written correspondence from any federal,
state or local governmental authority with respect to:
(a) noncompliance by the Borrower or any of its Subsidiaries with
any such environmental law, rule or regulation,
(b) personal injury, wrongful death or other tortious conduct
relating to materials, commodities or products used, generated, sold,
transferred or manufactured by the Borrower or any of its Subsidiaries
(including but not limited to products made of, containing or
incorporating asbestos, lead or other hazardous materials, commodities
or toxic substances), or
(c) the release into the environment by the Borrower or any of
its Subsidiaries of any Hazardous Material generated by the Borrower
or any of its Subsidiaries whether or not occurring at or on a site
owned, leased or operated by the Borrower or any of its Subsidiaries;
(iii) none of the properties owned or leased by the Borrower or any
of its Subsidiary has been used as a treatment, storage or disposal site;
and
(iv) no Hazardous Material is present in any real property currently
or formerly owned or operated by the Borrower or any of its Subsidiaries
except that which could not result in a Material Adverse Change.
7.11.2. Burdensome Obligations. The Borrower is not party to or
bound by any agreement, instrument, deed or lease and is not subject to any
charter, by-law or other restriction which, in the opinion of the
management of the Borrower, is so unusual or burdensome as in the
foreseeable future to result, or pose a material risk of resulting, in a
Material Adverse Change.
7.11.3. Future Expenditures. The Borrower does not anticipate that
future expenditures, if any, by the Borrower needed to meet the provisions
of any then existing federal, state or foreign governmental statutes,
orders, rules or regulations will be so burdensome as to result, or pose a
material risk of resulting, in any Material Adverse Change.
7.12. Pension Plans. Neither the Borrower nor any Subsidiary has any Plan
in effect as of the date hereof except for Plans of which the Lenders have been
notified in writing and are in compliance with Section 6.12.
7.13. Disclosure. Neither this Agreement nor any other Credit Document to
be furnished to the Lenders by or on behalf of the Borrower or any Subsidiary in
connection with the transactions contemplated hereby or by such Credit Document
contains any untrue statement of material fact or omits to state a material fact
necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances under which they were made. No fact is
actually known to the Borrower which has resulted, or in the future (so far as
the Borrower can reasonably foresee) will result, or poses a material risk of
resulting, in any Material Adverse Change, except to the extent that present or
future general economic conditions may result in a Material Adverse Change.
8. Defaults.
8.1. Events of Default. The following events are referred to as "Events
of Default":
8.1.1. The Borrower shall fail to make any payment in respect of: (i)
interest or any fee on or in respect of any of the Credit Obligations owed
by it as the same shall become due and payable, and such failure shall
continue for a period of five Banking Days, or (ii) principal of any of the
Credit Obligations owed by it as the same shall become due, whether at
maturity or by acceleration or otherwise, and such failure shall continue
for a period of two days.
8.1.2. The Borrower or any of its Subsidiaries shall fail to perform
or observe any of the provisions of (a) Sections 6.6, 6.8(b), 6.9 or 6.12
and such failure shall continue for a period of seven days, or (b) Sections
6.4, 6.5, 6.7, 6.8(a), 6.10, 6.11, 6.13, 6.14 or 6.15.
8.1.3. The Borrower or any of its Subsidiaries or any of their
respective Affiliates party to any Credit Document shall fail to perform or
observe any other covenant, agreement or provision to be performed or
observed by it under this Agreement or any other Credit Document after
giving effect to the applicable grace periods, and such failure shall not
be rectified or cured to the written satisfaction of the Majority Lenders
within 15 days after notice thereof by the Agent to the Borrower.
8.1.4. Any representation or warranty of or with respect to the
Borrower, any Subsidiary or any of their respective Affiliates party to any
Credit Document made to the Lenders in, pursuant to or in connection with
this Agreement or any other Credit Document shall prove to have been false
in any material respect upon the date when made and the condition,
transaction or event which causes such representation or warranty to be
false has had a Material Adverse Change.
8.1.5. (i) The Borrower or any of its Subsidiaries shall fail to make
any payment when due (after giving effect to any applicable grace periods)
in respect of any Financing Debt (other than the Credit Obligations)
outstanding in an aggregate amount of principal and accrued interest
exceeding $500,000 in the Equivalent Amount of United States Funds;
(ii) The Borrower or any Subsidiary shall fail to perform or
observe the terms of any agreement relating to such Financing Debt,
and such failure or condition shall continue, without having been duly
cured, waived or consented to, beyond the period of grace, if any,
specified in such agreement, and such failure or condition shall
permit the acceleration of such Financing Debt;
(iii) any such Financing Debt of the Borrower or any Subsidiary
shall be accelerated or become due or payable prior to its stated
maturity for any reason whatsoever (other than voluntary prepayments
thereof);
(iv) any Lien on any property of the Borrower or any Subsidiary
securing any such Financing Debt shall be enforced by foreclosure or
similar action; or
(v) any holder of any such Financing Debt shall exercise any
right of rescission with respect to the issuance thereof.
8.1.6. Except as permitted by Section 6.11 or as a result of any
dissolution, liquidation or winding up of any Subsidiary indicated on
Exhibit 7.1 or, if applicable, the most recent supplement thereof provided
to the Lenders in accordance with Section 6.4.1(iv), as being dormant or in
dissolution, the Borrower shall cease to own, directly or indirectly, the
capital stock of any of its Subsidiaries owned by it as of the Initial
Closing Date.
8.1.7. Any Credit Document shall cease, for any reason (other than
the scheduled termination thereof in accordance with its terms), to be in
full force and effect, or the Borrower, any Subsidiary or any of their
respective Affiliates party thereto shall so assert.
8.1.8. A final judgment which, with other outstanding final judgments
against the Borrower and its Subsidiaries, exceeds an aggregate of $50,000
in the Equivalent Amount of United States Funds shall be rendered against
the Borrower or any of its Subsidiaries or Affiliates party to any Credit
Document and if, within 60 days after entry thereof, such judgment shall
not have been discharged or execution thereof stayed pending appeal, or if,
within 60 days after the expiration of any such stay, such judgment shall
not have been discharged.
8.1.9. The Borrower, any Subsidiary or any of their respective
Affiliates (where such Affiliate is obligated with respect to any Credit
Obligation) shall:
(i) commence a voluntary case under the Bankruptcy Code or
authorize, by appropriate proceedings of its board of directors or
other governing body, the commencement of such a voluntary case;
(ii) have filed against it a petition commencing an involuntary
case under the Bankruptcy Code which shall not have been dismissed
within 60 days after the date on which such petition is filed; or file
an answer or other pleading within such 60-day period admitting or
failing to deny the material allegations of such a petition or
seeking, consenting to or acquiescing in the relief therein provided;
(iii) have entered against it an order for relief in any
involuntary case commenced under the Bankruptcy Code;
(iv) seek relief as a debtor under any applicable law, other
than the Bankruptcy Code, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors, or consent to or acquiesce in
such relief;
(v) have entered against it an order by a court of competent
jurisdiction (a) finding it to be bankrupt or insolvent, (b) ordering
or approving its liquidation, reorganization or any modification or
alteration of the rights of its creditors or (c) assuming custody of,
or appointing a receiver or other custodian for, all or a substantial
portion of its property; or
(vi) make an assignment for the benefit of, or enter into a
composition with, its creditors, or appoint, or consent to the
appointment of, or suffer to exist the appointment of a receiver,
examiner, other similar officer or other custodian for, all or a
substantial portion of its property.
8.1.10. Any Control Group Person shall fail to pay when due amounts
aggregating in excess of $500,000 which it shall have become liable to pay
to the PBGC or to a Plan under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
Control Group Person or administrator; or the PBGC shall institute
proceedings under Title IV of ERISA to terminate or to cause a trustee to
be appointed to administer any Material Plan or a proceeding shall be
instituted by a fiduciary of any Material Plan against any Control Group
Person to enforce section 515 or 4219(c)(5) of ERISA and such proceeding
shall not have been dismissed within 30 days thereafter; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated.
8.1.11. Any person or group of persons (within the meaning of Section
13 or 14 of the Exchange Act, but excluding persons who are directors or
officers of the Borrower on the date of this Agreement who continue to be
directors or officers) shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission
under said Act) of 33% or more of the outstanding shares of common stock of
the Borrower or the percentage of the voting power required to elect a
majority of the board of directors of the Borrower.
8.2. Certain Actions Following an Event of Default. If any one or more
Events of Default shall occur, then in each and every such case:
8.2.1. No Obligation to Extend Credit. Upon notice from the Agent to
the Borrower, the obligations of the Lenders to make any further extensions
of credit hereunder shall terminate.
8.2.2. Specific Performance; Exercise of Rights. The Agent shall,
upon written request of the Majority Lenders, proceed to protect and
enforce the Lenders' rights by suit in equity, action at law and/or other
appropriate proceeding, either for specific performance of any covenant or
condition contained in this Agreement or any other Credit Document or in
any instrument or assignment delivered to the Lenders pursuant to this
Agreement or any other Credit Document, or in aid of the exercise of any
power granted in this Agreement or any other Credit Document or any such
instrument or assignment.
8.2.3. Enforcement of Payment; Setoff. The Agent shall, upon written
request of the Majority Lenders, proceed to enforce payment of the Credit
Obligations in such manner as the Majority Lenders may elect, and the
Lenders may offset and apply toward the payment of such balance (and/or
toward the curing of any Event of Default) any Indebtedness from the
Lenders to the Borrower, including any Indebtedness represented by deposits
in any account maintained with the Lenders, regardless of the adequacy of
any security for the Credit Obligations, and the Lenders shall have no duty
to determine the adequacy of any such security in connection with any such
offset.
8.2.4. Acceleration. The Agent shall, upon written request of the
Majority Lenders, by notice in writing to the Borrower declare all or any
part of the unpaid balance of the Credit Obligations then outstanding to be
immediately due and payable, and thereupon such unpaid balance or part
thereof shall become so due and payable without presentation, protest or
further demand or notice of any kind, all of which are hereby expressly
waived; provided, however, that if a Bankruptcy Default shall have
occurred, the unpaid balance of the Credit Obligations shall automatically
become immediately due and payable.
8.2.5. Cumulative Remedies. To the extent not prohibited by
applicable law which cannot be waived, all of the Lenders' rights hereunder
and under each other Credit Document shall be cumulative.
8.3. Annulment of Defaults. Any Default or Event of Default shall be
deemed to exist and to be continuing for any purpose of this Agreement until the
Majority Lenders or the Agent (with the consent of the Majority Lenders) shall
have waived such Default or Event of Default in writing, stated in writing that
the same has been cured to such Lenders' reasonable satisfaction or entered into
an amendment to this Agreement which by its express terms cures such Default or
Event of Default. No such action by the Lenders or the Agent shall extend to or
affect any subsequent Default or Event of Default or impair any rights of the
Lenders upon the occurrence thereof. The making of any extension of credit
during the existence of any Default or Event of Default shall not constitute a
waiver thereof.
8.4. Waivers. The Borrower hereby waives to the extent not prohibited by
applicable law:
(i) all presentments, demands for performance, notices of
nonperformance (except to the extent required by the provisions of this
Agreement or any other Credit Document), protests, notices of protest and
notices of dishonor,
(ii) any requirement of diligence or promptness on the part of any
Lender in the enforcement of its rights under this Agreement, the Notes or
any other Credit Document,
(iii) any and all notices of every kind and description which may be
required to be given by any statute or rule of law, except as expressly
required in any Credit Document, and
(iv) any defense of any kind (other than indefeasible payment in
full) which it may now or hereafter have with respect to its liability
under this Agreement, the Notes or any other Credit Document or with
respect to the Credit Obligations.
9. Expenses; Indemnity.
9.1. Expenses. Whether or not the transactions contemplated hereby shall
be consummated, the Borrower will bear
(i) all reasonable out of pocket expenses of the Lenders (including
the reasonable fees and disbursements of the special counsel to the Agent
not to exceed $35,000) in connection with the preparation and duplication
of this Agreement, each other Credit Document, the transactions
contemplated hereby and thereby and each closing hereunder, and any
amendments, modifications, approvals, consents or waivers hereunder;
(ii) all recording and filing fees and transfer and documentary stamp
and similar taxes at any time payable in respect of this Agreement, any
other Credit Document or the incurrence of the Credit Obligations; and
(iii) to the extent not prohibited by applicable law that cannot be
waived, after the occurrence and during the continuance of any Default or
Event of Default, all other reasonable expenses incurred by the Lenders or
the holder of any Credit Obligation in connection with the enforcement of
any rights hereunder or under any other Credit Document, including costs of
collection and reasonable attorneys' fees (including a reasonable allowance
for the hourly cost of attorneys employed by the Lenders on a salaried
basis) and expenses.
9.2. General Indemnity. The Borrower will indemnify the Lenders and hold
them harmless from any liability, loss or damage resulting from the violation by
the Borrower of Section 2.3. The Borrower will also indemnify each Lender, each
of the Lenders' directors, officers and employees, and each Person, if any, who
controls any Lender (each Lender and each of such directors, officers, employees
and control Persons is referred to as an "Indemnitee") and hold each of them
harmless from and against any and all claims, damages, liabilities and
reasonable expenses (including reasonable fees and disbursements of counsel with
whom any Indemnitee may consult in connection therewith and all reasonable
expenses of litigation or preparation therefor) which any Indemnitee may incur
or which may be asserted against any Indemnitee in connection with any
litigation or investigation involving the Borrower, any Subsidiaries or
Affiliates, or any officer, director or employee thereof (including the Lenders'
compliance with or contest of any subpoena or other process issued against them
in any proceeding involving the Borrower or any Subsidiaries or Affiliates),
other than litigation commenced by the Borrower against the Lenders which seeks
enforcement of any of the rights of the Borrower hereunder or under any other
Credit Document and is finally determined adversely to the Lenders and except to
the extent such claims, damages, liabilities and expenses result from an
Indemnitee's gross negligence or willful misconduct.
9.3. Indemnity with Respect to Foreign Currency Transactions. The
Borrower waives, to the extent it may lawfully do so, any right it may have in
any jurisdiction to pay any Credit Obligation in a currency other than the
currency in which such Credit Obligation is expressed to be payable under the
Credit Documents. If a judgment or order is rendered by a court or tribunal of
competent jurisdiction for the payment of any amounts owing to the Lenders under
any Credit Document, or under a judgment or order of a court of any other
jurisdiction in respect thereof, and any such judgment or order is expressed in
a currency (the "Payment Currency") other than the currency agreed to be payable
under the Credit Documents (the "Agreed Currency"), or in the event of any
payment being made in any currency other than the Agreed Currency whether
pursuant to the liquidation of any Borrower or otherwise, the Borrower shall, to
the extent permitted by applicable law, indemnify and hold the Lenders harmless
against any deficiency arising or resulting from any variation in rates of
exchange between (a) the rate at which any amount expressed in any Agreed
Currency for purposes of any Credit Document is converted for the purpose of any
such judgment, order or payment into an equivalent amount in the Payment
Currency, and (b) the rate at which at the time of payment of such amount
pursuant to any Credit Document such Agreed Currency could be purchased by the
Agent with the Payment Currency in the spot market in the place at which such
payment was to have been made.
10. Operations.
10.1. Interests in Credits. The percentage interest of each Lender in the
Loan shall be computed based on the maximum principal amount for each Lender as
set forth in Exhibit 10.1. The foregoing percentage interests, as otherwise
adjusted as the Lenders may from time to time agree among themselves, are
referred to as the "Percentage Interests" with respect to all or any portion of
the Loan. References in any Credit Document to the Lenders' respective
Percentage Interests are to such interests as from time to time in effect.
10.2. Agent's Authority to Act. Each of the Lenders hereby appoints and
authorizes the Agent to act for the Lenders as the Lenders' Agent in connection
with the transactions contemplated by this Agreement and the other Credit
Documents on the terms set forth herein.
10.3. Borrower to Pay Agent, etc. The Borrower shall be fully protected
in making all payments in respect of the Credit Obligations to the Agent, in
relying upon consents, modifications and amendments executed by the Agent
purportedly on the behalf of the Lenders or any Lender, and in dealing with the
Agent as herein provided. The Agent shall charge the accounts of the Borrower,
on the dates when the amounts thereof become due and payable, with the amounts
of the principal of and interest on the Loan for the Borrower, commitment fees,
and all other fees and amounts owing under any Credit Document.
10.4. Lender Operations for Advances, etc.
10.4.1. Advances. On each Closing Date, each Lender shall advance to
the Agent in immediately available funds such Lender's Percentage Interest
in the portion of the Loans advanced on such Closing Date prior to 10:00
a.m. (Boston time). If such funds are not received at such time, but all
applicable conditions set forth in Section 5 have been satisfied, each
Lender hereby authorizes and requests the Agent to advance for the Lender's
account, pursuant to the terms hereof, the Lender's respective Percentage
Interest in such portion of the Loan and agrees to reimburse the Agent in
immediately available funds for the amount thereof prior to 2:00 p.m.
(Boston time) on the day any portion of the Loans is advanced hereunder;
provided, however, that the Agent shall be under no obligation to make any
such advance.
10.4.2. Agent to Allocate Payments. All payments of principal and
interest in respect of the extensions of credit made pursuant to this
Agreement, commitment fees, and other fees under this Agreement shall, as a
matter of convenience, be made by the Borrower to the Agent in immediately
available funds, and the share of each Lender shall be credited to such
Lender by the Agent in immediately available funds in such manner that the
principal amount of the Credit Obligations to be paid shall be paid
proportionately in accordance with the Lenders' respective Percentage
Interests in such Credit Obligations.
10.5. Sharing of Payments, etc. Each Lender agrees that (i) if by
exercising any right of set-off or counterclaim or otherwise, it shall receive
payment of a proportion of the aggregate amount of principal and interest due
with respect to its Percentage Interest in the Loan which is greater than the
proportion received by any other Lender in respect of the aggregate amount of
principal and interest due with respect to the Percentage Interest in the Loan
of such other Lender and (ii) if such inequality shall continue for more than 10
days, the Lender receiving such proportionately greater payment shall purchase
participations in the Percentage Interests in the Loans held by the other
Lenders, and such other adjustments shall be made from time to time, as may be
required so that all such payments of principal and interest with respect to the
Loans held by the Lenders shall be shared by the Lenders pro rata in accordance
with their respective Percentage Interests. The Borrower agrees, to the fullest
extent permitted by applicable law, that any Credit Participant and any Lender
purchasing a participation from another Lender pursuant to this Section 10.5 may
exercise all rights of payment (including the right of set-off), and shall be
obligated to share payments under this Section 10.5, with respect to its
participation as fully as if such Credit Participant or such Lender were the
direct creditor of the Borrower and a Lender hereunder in the amount of such
participation.
10.6. Amendments, Consents, Waivers, etc. Except as otherwise set forth
herein, the Agent shall, upon the written request of the Majority Lenders, take
or refrain from taking any action under this Agreement or any other Credit
Document, including giving its written consent to any modification of or
amendment to and waiving in writing compliance with any covenant or condition in
this Agreement or any other Credit Document or any Default or Event of Default
hereunder or thereunder, all of which actions shall be binding upon all of the
Lenders; provided, however, that without the written consent of such Lenders as
own 100% of the Percentage Interests:
(i) No reduction in the interest rate on the Loans shall be made.
(ii) No extension or postponement of the stated time of payment of
all or any portion of the Loans or interest thereon shall be made.
(iii) No increase in the amount, or extension of the term, of the
Lenders' commitments beyond that provided for in Section 2 shall be made.
(iv) No alteration of the Lenders' several rights of set-off
contained in Section 8.2.3 shall be made.
10.7. Agent's Resignation. The Agent may resign at any time by giving at
least 60 days' prior written notice of its intention to do so to each other of
the Lenders; provided that such resignation shall only be effective upon the
appointment by the Majority Lenders of a successor Agent satisfactory to the
Borrower. If no successor Agent shall have been so appointed and shall have
accepted such appointment within 45 days after the retiring Agent's giving of
such notice of resignation, then the retiring Agent may with the consent of the
Borrower, which shall not be unreasonably withheld, appoint a successor Agent
which shall be a bank or a trust company having a combined capital, surplus and
undivided profit of at least $100,000,000; provided, however, that any successor
Agent appointed under this sentence may be removed upon the written request of
the Majority Lenders, which request shall also appoint a successor Agent
satisfactory to the Borrower. Upon the appointment of a new Agent hereunder,
the term "Agent" shall for all purposes of this Agreement thereafter mean such
successor. After any retiring Agent's resignation hereunder as Agent, or the
removal hereunder of any successor Agent, the provisions of this Agreement shall
continue to inure to the benefit of such Agent as to any actions taken or
omitted to be taken by it while it was Agent under this Agreement.
10.8. Concerning the Agent.
10.8.1. Action in Good Faith, etc. The Agent and its officers,
directors, employees and agents shall be under no liability to any of the
Lenders or to any future holder of any interest in the Credit Obligations
for any action or failure to act taken or suffered in good faith and not
constituting gross negligence, and any action or failure to act in
accordance with a written opinion of its counsel shall conclusively be
deemed to be in good faith and not grossly negligent. The Agent shall in
all cases be entitled to rely, and shall be fully protected in relying, on
instructions given to the Agent by the required holders of Credit
Obligations as provided in this Agreement.
10.8.2. No Implied Duties, etc. The Agent shall have and may
exercise such powers as are specifically delegated to the Agent under this
Agreement or any other Credit Document together with all other powers
incidental thereto. The Agent shall have no implied duties to any Person
or any obligation to take any action under this Agreement or any other
Credit Document except for action specifically provided for in this
Agreement or any other Credit Document to be taken by the Agent. Before
taking any action under this Agreement or any other Credit Document, the
Agent may request an appropriate specific indemnity satisfactory to it from
each Lender in addition to the general indemnity provided for in Section
10.11 and until the Agent has received such specific indemnity, the Agent
shall not be obligated to take (although it may in its sole discretion
take) any such action under this Agreement or any other Credit Document.
10.8.3. Validity, etc. Subject to Section 10.8.1, the Agent shall
not be responsible to any Lender or any future holder of any interest in
the Credit Obligations (i) for the legality, validity, enforceability or
effectiveness of this Agreement or any other Credit Document, (ii) for any
recitals, reports, representations, warranties or statements contained in
or made in connection with this Agreement or any other Credit Document,
(iii) for the existence or value of any assets included in any security for
the Credit Obligations, (iv) for the perfection or effectiveness of any
Lien purported to be included in such security or (v) for the specification
or failure to specify any particular assets to be included in such
security.
10.8.4. Compliance. The Agent shall not be obligated to ascertain or
inquire as to the performance or observance of any of the terms of this
Agreement or any other Credit Document; and in connection with any
extension of credit under this Agreement or any other Credit Document, the
Agent shall be fully protected in relying on a certificate of the Borrower
as to the fulfillment by the Borrower of any conditions to such extension
of credit.
10.8.5. Employment of Agents and Counsel. The Agent may execute any
of its duties as Agent under this Agreement or any other Credit Document by
or through employees, agents and attorneys-in-fact and shall not be
answerable to any of the Lenders, the Borrower or any Subsidiary of the
Borrower (except as to money or securities received by the Agent or the
Agent's authorized agents) for the default or misconduct of any such agents
or attorneys-in-fact selected by the Agent with reasonable care. The Agent
shall be entitled to advice of counsel concerning all matters pertaining to
the agency hereby created and its duties hereunder or under any other
Credit Document.
10.8.6. Reliance on Documents and Counsel. The Agent shall be
entitled to rely, and shall be fully protected in relying, upon any
affidavit, certificate, cablegram, consent, instrument, letter, notice,
order, document, statement, telecopy, telegram, telex or teletype message
or writing reasonably believed in good faith by the Agent to the genuine
and correct and to have been signed, sent or made by the Person in
question, including without limitation any telephonic or oral statement
made by such Person, and, with respect to legal matters, upon the written
opinion of counsel selected by the Agent.
10.8.7. Agent's Reimbursement. Each of the Lenders severally agrees
to reimburse the Agent in the amount of such Lender's Percentage Interest,
for any expenses not reimbursed by the Borrower (without limiting the
obligation of the Borrower to make such reimbursement): (i) for which the
Agent, in its capacity as agent for the Lenders under this Agreement, is
entitled to reimbursement by the Borrower under this Agreement or any other
Credit Document, and (ii) after the occurrence of a Default, for any other
expenses incurred by the Agent on the Lenders' behalf in connection with
the enforcement of the Lenders' rights under this Agreement or any other
Credit Document.
10.9. Rights as a Lender. With respect to any credit extended by it
hereunder, The First National Bank of Boston shall have the same rights,
obligations and powers hereunder as any other Lender and may exercise such
rights and powers as though it were not the Agent, and unless the context
otherwise specifies, The First National Bank of Boston shall be treated in its
individual capacity as though it were not the Agent hereunder. Without limiting
the generality of the foregoing, the Percentage Interest of The First National
Bank of Boston shall be included in any computations of Percentage Interests.
The First National Bank of Boston and its Affiliates may accept deposits from,
lend money to, act as trustee for and generally engage in any kind of banking or
trust business with the Borrower, any Subsidiary or any Affiliate of any of them
and any Person who may do business with or own an equity interest in the
Borrower, any of its Subsidiaries or any Affiliate of any of them, all as if
such bank were not the Agent and without any duty to account therefor to the
other Lenders.
10.10. Independent Credit Decision. Each of the Lenders acknowledges that
it has independently and without reliance upon the Agent, based on the financial
statements and other documents referred to in Section 7.2, on the other
representations and warranties contained herein and on such other information
with respect to the Borrower and its Subsidiaries as such Lender deemed
appropriate, made such Lender's own credit analysis and decision to enter into
this Agreement and to make the extensions of credit provided for hereunder.
Each Lender represents to the Agent that such Lender will continue to make its
own independent credit and other decisions in taking or not taking action under
this Agreement or any other Credit Document. Each Lender expressly acknowledges
that neither the Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to
such Lender, and no act by the Agent taken under this Agreement or any other
Credit Document, including any review of the affairs of the Borrower and its
Subsidiaries, shall be deemed to constitute any representation or warranty by
the Agent. Except for notices, reports and other documents expressly required
to be furnished to each Lender by the Agent under this Agreement or any other
Credit Document, the Agent shall not have any duty or responsibility to provide
any Lender with any credit or other information concerning the business,
operations, property, condition, financial or otherwise, or credit worthiness of
the Borrower or any of its Subsidiaries which may come into the possession of
the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
10.11. Indemnification. The holders of the Credit Obligations hereby
agree to indemnify the Agent (to the extent not reimbursed by the Borrower and
without limiting the obligation of any of the Borrower to do so), pro rata
according to their respective Percentage Interests, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever which may at any time be
imposed on, incurred by or asserted against the Agent relating to or arising out
of this Agreement, any other Credit Document, the transactions contemplated
hereby or thereby, or any action taken or omitted by the Agent in connection
with any of the foregoing; provided, however, that the foregoing shall not
extend to actions or omissions which are taken by the Agent with gross
negligence or willful misconduct.
11. Successors and Assigns. Any reference in this Agreement to any of the
parties hereto shall be deemed to include the successors and assigns of such
party, and all covenants and agreements by or on behalf of the Borrower, the
Agent or the Lenders that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and assigns; provided, however,
that (a) the Borrower may not assign its rights or obligations under this
Agreement, and (b) the Lenders may not assign their respective Percentage
Interests in the Loan hereunder except as set forth below in this Section 11.
11.1. Assignments by Lenders.
11.1.1. Assignees and Assignment Procedures. Any Lender may, with
the consent of the Majority Lenders and, if no Event of Default exists, the
Borrower (which consents will not be unreasonably withheld), assign to one
or more banks or other institutional lenders (each an "Assignee"), all or a
portion of its interests, rights and obligations under this Agreement and
the other Credit Documents. From and after the effective date of each
assignment agreement specified in each such assignment agreement:
(i) the Assignee shall be a party hereto and, to the extent
provided in such assignment agreement have the rights and obligations
of the assigning Lender under this Agreement and
(ii) the assigning Lender shall, to the extent provided in such
assignment, be released from its obligations under this Agreement.
11.1.2. Acceptance of Assignment and Assumption. Upon the execution
of an assignment agreement pursuant to this Section 11, the assigning
Lender shall give prompt notice thereof to the Borrower and the Agent.
Within five Banking Days after receipt of notice, the Borrower, at its own
expense, shall execute and deliver to the assigning Lender, in exchange for
each surrendered Note, (i) a new Note to the order of such Assignee in a
principal amount equal to the amount of the Loans evidenced by the
surrendered Note which has been assumed by such Assignee pursuant to such
assignment agreement and (ii) a new Note to the order of the assigning
Lender in a principal amount equal to the amount of the Loan evidenced by
the surrendered Note which has been retained by such assigning Lender.
Such new Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of the surrendered Notes, and shall be dated the
date of the surrendered Notes which they replace.
11.1.3. Federal Reserve Bank. Notwithstanding the foregoing
provisions of this Section 11, each Lender and any Assignee may at any time
pledge or assign all or any portion of such Person's rights under this
Agreement and the other Credit Documents to a Federal Reserve Bank;
provided, however, that no such pledge or assignment shall release such
Person from such Person's obligations hereunder or under any other Credit
Document.
11.1.4. Further Assurances. The Borrower shall sign such documents
and take such other actions from time to time reasonably requested by an
Assignee to enable it to share in the benefits of the rights created by the
Credit Documents.
11.2. Credit Participants. Any Lender may, without the consent of the
Borrower, in compliance with applicable laws in connection with such
participation, sell to one or more "qualified institutional investors" as
defined in Rule 144A under the Securities Act (each a "Credit Participant")
participations in all or a portion of its interests, rights and obligations
under this Agreement and the other Credit Documents; provided, however, that:
(a) such Lender's obligations under this Agreement shall remain
unchanged;
(b) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations; and
(c) the Borrower shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower under this Agreement or any Credit Document and
to approve any amendment, modification or waiver of any provision of this
Agreement or any Credit Document (other than amendments, modifications or
waivers with respect to any fees payable hereunder or the amount of
principal of or the rate at which interest is payable on the Loan, or the
stated dates for payments of principal of or interest on the Loan).
12. Notices. Except as otherwise specified in this Agreement, any notice
required to be given pursuant to this Agreement shall be given in writing. Any
notice, demand or other communication in connection with this Agreement shall be
deemed to be given if given in writing (including telex, telecopy or similar
teletransmission) addressed as provided below (or to the addressee at such other
address as the addressee shall have specified by notice actually received by the
addressor), and if either (i) actually delivered in fully legible form to such
address (evidenced in the case of a telex by receipt of the correct answer back)
or (ii) in the case of a letter, five days shall have elapsed after the same
shall have been deposited in the United States mails, with first-class postage
prepaid and registered or certified.
If to the Borrower, to it at its address set forth in Exhibit 7.1 (as
supplemented pursuant to Section 6.4), to the attention of the President.
If to Agent:
THE FIRST NATIONAL BANK OF BOSTON
100 Federal Street
Boston, Massachusetts 02110
Attention: Andrew T. Fay
Telecopy: (617) 434-8102
with a copy to:
Ropes & Gray
One International Place
Boston, MA 02110
Attention: David A. McKay
Telecopy: (617) 951-7050
If to The Bank of Ireland:
THE BANK OF IRELAND
Corporate Banking
Lower Baggott Street
Dublin 2, Ireland
Attention: Thomas Hayes
Telecopy: 011-35-3-1604-4105
with a copy to:
Arthur Cox
41/45 Stephen's Green
Dublin 2, IRELAND
Attention: Grainne Hennessy
Telecopy: 011-353-1-668-8906
13. Course of Dealing, Amendments and Waivers. No course of dealing between
any Lenders and the Borrower or any Subsidiary or Affiliate of the Borrower
shall operate as a waiver of any of the Lenders' rights under this Agreement or
any other Credit Document or with respect to the Credit Obligations. No delay
or omission on the part of any Lender in exercising any right under this
Agreement or any other Credit Document or with respect to the Credit Obligations
shall operate as a waiver of such right or any other right hereunder or
thereunder. A waiver on any one occasion shall not be construed as a bar to or
waiver of any right or remedy on any future occasion. No waiver, consent or
amendment with respect to this Agreement or any other Credit Document shall be
binding unless it is in writing and signed by the Agent or the holders of the
required Credit Obligations.
14. Defeasance. When all Credit Obligations have been paid, performed and
reasonably determined by the Lenders to have been indefeasibly discharged in
full, and if at the time no Lender continues to be committed to extend any
credit to the Borrower hereunder or under any other Credit Document, this
Agreement shall terminate. Thereupon, on the Borrower's demand and at its cost
and expense, the Agent shall execute proper instruments, acknowledging
satisfaction of and discharging this Agreement; provided, however, that Section
3.2.4, 3.2.5, 3.2.6, 10, 12, 14 and 15 shall survive the termination of this
Agreement.
15. Venue; Service of Process. Each of the Borrower and the Lenders by its
execution hereof:
(i) Irrevocably submits to the nonexclusive jurisdiction of the state
courts of The Commonwealth of Massachusetts and to the nonexclusive
jurisdiction of the United States District Court for the District of
Massachusetts for the purpose of any suit, action or other proceeding
arising out of or based upon this Agreement or any other Credit Document or
the subject matter hereof or thereof.
(ii) Waives to the extent not prohibited by applicable law, and
agrees not to assert, by way of motion, as a defense or otherwise, in any
such proceeding brought in any of the above-named courts, any claim that it
is not subject personally to the jurisdiction of such court, that its
property is exempt or immune from attachment or execution, that such
proceeding is brought in an inconvenient forum, that the venue of such
proceeding is improper, or that this Agreement or any other Credit
Document, or the subject matter hereof or thereof, may not be enforced in
or by such court.
Each of the Borrower and the Lenders consents to service of process in any such
proceeding in any manner permitted by Chapter 223A of the General Laws of The
Commonwealth of Massachusetts and agrees that service of process by registered
or certified mail, return receipt requested, at its address specified in or
pursuant to Section 12 is reasonably calculated to give actual notice.
16. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT
CANNOT BE WAIVED, EACH OF THE BORROWER AND THE LENDERS WAIVES, AND COVENANTS
THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY
RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING
ARISING OUT OF THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE SUBJECT MATTER
HEREOF OR THEREOF OR ANY CREDIT OBLIGATION OR IN ANY WAY CONNECTED WITH THE
DEALINGS OF THE LENDERS OR THE BORROWER IN CONNECTION WITH ANY OF THE ABOVE, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN CONTRACT,
TORT OR OTHERWISE. The Borrower acknowledges that it has been informed by the
Lenders that the provisions of this Section 16 constitute a material inducement
upon which each of the Lenders has relied and will rely in entering into this
Agreement and any other Credit Document, and that it has reviewed the provisions
of this Section 16 with its counsel. Any Lender or the Borrower may file an
original counterpart or a copy of this Section 16 with any court as written
evidence of the consent of the Borrower and the Lenders to the waiver of their
rights to trial by jury.
17. General. All covenants, agreements, representations and warranties made in
this Agreement or any other Credit Document or in certificates delivered
pursuant hereto or thereto shall be deemed to have been material and relied on
by each Lender, notwithstanding any investigation made by any Lender on its
behalf, and shall survive the execution and delivery to the Lenders hereof and
thereof. The invalidity or unenforceability of any term or provision hereof
shall not affect the validity or enforceability of any other term or provision
hereof. The headings in this Agreement are for convenience of reference only
and shall not limit, alter or otherwise affect the meaning hereof. This
Agreement and the other Credit Documents constitute the entire understanding of
the parties with respect to the subject matter hereof and thereof and supersede
all prior and current understandings and agreements, whether written or oral.
This Agreement may be executed in any number of counterparts which together
shall constitute one instrument. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS
(OTHER THAN THE CONFLICT OF LAWS RULES.
Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first above written.
CHEMFAB CORPORATION
By /S/ Moosa E. Moosa
___________________________
Name: Moosa E. Moosa
Title: VP, Finance & CFO
700 Daniel Webster Highway
Merrimack, NH 03054
Attention: Moosa E. Moosa
Telecopy: (603) 424-9028
THE FIRST NATIONAL BANK OF BOSTON
By /S/ Andrew T. Fay
___________________________
Name: Andrew T. Fay
Title: Vice President
100 Federal Street
Boston, Massachusetts 02110
Attention: Andrew T. Fay
Telecopy: (617) 434-8102
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
By /S/ David Owens
-----------------------------
Name: David Owens
Title: Account Executive
Corporate Banking
Lower Baggott Street
Dublin 2, Ireland
Attention: Thomas Hayes
Telecopy: 011-35-3-1604-4105