1
Exhibit 10.3
AMENDED AND RESTATED
MULTICURRENCY REVOLVING CREDIT
AND TERM LOAN AGREEMENT
Among
TERADYNE, INC.,
THE FIRST NATIONAL BANK OF BOSTON,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
STATE STREET BANK AND TRUST COMPANY,
FLEET BANK OF MASSACHUSETTS, N.A.
and
THE FIRST NATIONAL BANK OF BOSTON,
As Agent
as of January 31, 1996
2
Table of Contents
Page
1. INTERPRETATION
1.1. General Provisions Pertaining to.................................. 1
1.2. Terms Defined..................................................... 2
2. THE LOANS
2.1. Obligations of the Banks to Make Advances......................... 12
2.2. Termination of Commitment ........................................ 12
2.3. Reduction or Termination by the Company
of Banks' Commitment.......................................... 12
2.4. Reduction of Optional Currency Borrowings......................... 13
2.5. Fees.............................................................. 13
2.6. Making the Advances............................................... 14
2.7. Optional Currencies............................................... 15
2.8. Interest Payable on the Loans..................................... 17
2.9. Alternative Interest Rates........................................ 18
2.10. Repayments and Prepayments of the Loans, etc...................... 19
2.11. Payments and Computations......................................... 21
2.12. Payments to be Free of Deductions................................. 22
2.13. Additional Costs, Changes in Circumstances, etc................... 22
2.14. Indemnification for Losses........................................ 24
2.15. Increased Capital Requirements.................................... 24
2.16. HLT Classification................................................ 25
3. CONDITIONS OF LENDING
3.1. Conditions Precedent to Each Advance........................................... 25
3.2. Conditions Precedent to First Advance.......................................... 27
4. REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties of the Company..................... 28
4.1.1. Organization, Good Standing, Authority, etc....................... 28
4.1.2. Governmental Approvals............................................ 28
4.1.3. Subsidiaries...................................................... 28
4.1.4. Compliance with Other Instruments................................. 29
4.1.5. Litigation........................................................ 29
4.1.6. No Adverse Contracts, etc......................................... 29
3
(ii)
4.1.7. Financial Statements.............................................. 29
4.1.8. Changes........................................................... 29
4.1.9. Business.......................................................... 29
4.1.10. Taxes............................................................. 30
4.1.11. Loan as Senior Indebtedness....................................... 30
4.1.12. No Defaults....................................................... 30
4.1.13. Regulation U...................................................... 30
4.1.14. Pension Plans..................................................... 30
4.1.15. Investment Company; Public Utility
Holding Company................................................ 30
4.1.16. Environmental Compliance.......................................... 31
4.2. Representations and Warranties of Each
Borrowing Subsidiary.......................................... 31
4.2.1. Organization, Good Standing, Authority, etc....................... 31
4.2.2. Governmental Approvals............................................ 32
4.2.3. Compliance with Other Instruments................................. 32
4.2.4. Litigation........................................................ 32
4.2.5. No Adverse Contracts, etc......................................... 32
4.2.6. Regulation U...................................................... 32
4.2.7. Borrowing Subsidiary.............................................. 32
4.2.8. Investment Company; Public Utility
Holding Company............................................... 32
5. CERTAIN AFFIRMATIVE COVENANTS
5.1. Conduct of Business............................................... 33
5.2. Payment of Taxes.................................................. 33
5.3. Notification of Significant
Litigation, Default, etc...................................... 33
5.4. Financial Statements, Certificates
and Other Information........................................ 34
5.5. Inspection of Properties and Books................................ 35
5.6. Employee Retirement Income
Security Act of 1974.......................................... 35
5.7. Financial Covenants............................................... 36
5.8. Pension Plans..................................................... 36
5.9. Further Assurances................................................ 36
5.10. Borrowing Subsidiaries............................................ 37
5.11. Environmental Matters............................................. 37
6. CERTAIN NEGATIVE COVENANTS
6.1. Indebtedness...................................................... 38
6.2. Liens............................................................. 39
4
(iii)
6.3. Investments....................................................... 39
6.4. Merger and Sale of Assets......................................... 40
6.5. Lines of Business................................................. 40
6.6. Limitation on Stock Repurchases................................... 41
6.7. Leasebacks........................................................ 41
7. GUARANTY
7.1. Guaranty........................................................... 41
7.2. Guaranty Absolute................................................. 41
7.3. Effectiveness, Enforcement........................................ 42
7.4. Waiver............................................................ 43
7.5. Subrogation....................................................... 43
8. EVENTS OF DEFAULT; ACCELERATION................................................ 44
9. SET-OFF .................................................................. 46
10. THE AGENT .................................................................. 47
11. MISCELLANEOUS
11.1. Expenses.......................................................... 49
11.2. Notices, etc...................................................... 49
11.3. Reliance, etc..................................................... 50
11.4. Captions.......................................................... 50
11.5. Consents, Amendments, Waivers, etc................................ 51
11.6. Benefit, etc...................................................... 52
11.7. Exchange Rate..................................................... 52
11.8. Governing Law..................................................... 52
11.9. Counterparts...................................................... 52
11.10. Consent to Jurisdiction,
Waiver of Jury Trial.......................................... 53
11.11. Transitional Provisions........................................... 54
11.12. Exempt Character of Transaction................................... 54
11. ASSIGNMENT AND PARTICIPATION
12.1. Conditions to Assignment by Banks................................. 54
12.2. Certain Representations and Warranties............................ 55
12.3. Register.......................................................... 56
12.4. New Notes......................................................... 56
12.5. Participations.................................................... 57
12.6. Disclosure........................................................ 57
5
(iv)
12.7. Assignee or Participant Affiliate................................. 57
12.8 Miscellaneous Assignment Provisions............................... 58
12.9 Assignment by Company............................................. 58
<FN>
Exhibits
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Election for Borrowing
Exhibit C Form of Notes
Schedules
Schedule 1 Commitment
Schedule 4.1.3 Subsidiaries
Schedule 4.1.5 Litigation
Schedule 4.1.16 Environmental Matters
Schedule 6.1 Existing Indebtedness
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TERADYNE, INC.
AMENDED AND RESTATED
MULTICURRENCY REVOLVING CREDIT
AND TERM LOAN AGREEMENT
This AMENDED AND RESTATED MULTICURRENCY REVOLVING CREDIT AND TERM LOAN
AGREEMENT (the "Agreement") is made as of January 31, 1996, by and among
TERADYNE, INC. (the "Company"), THE FIRST NATIONAL BANK OF BOSTON, BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, STATE STREET BANK AND TRUST
COMPANY, FLEET BANK OF MASSACHUSETTS, N.A., and the other lending institutions
listed on Schedule 1 hereto (each of which are referred to individually, as a
"Bank" and collectively, as the "Banks") and THE FIRST NATIONAL BANK OF BOSTON,
as agent for itself and the other Banks (in such capacity, the "Agent").
WHEREAS, the Company, the Banks and the Agent previously entered into a
Multicurrency Revolving Credit and Term Loan Agreement dated as of April 29,
1991 (as amended and in effect from time to time, the "Original Credit
Agreement"); and
WHEREAS, the Company, the Banks and the Agent desire to amend and
restate the Original Credit Agreement in its entirety as set forth herein;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Company, the Banks and the
Agent hereby agree, subject to the terms and conditions set forth herein, to
amend and restate the Original Credit Agreement in its entirety as follows:
SECTION 1. INTERPRETATION.
1.1. General Provisions Pertaining to Definitions. For all purposes of this
Agreement, except as otherwise expressly provided herein or unless the context
otherwise requires:
(a) terms specifically defined in Section 1.2 hereof have the
meanings therein assigned to them, and other terms defined elsewhere in this
Agreement shall have the meanings therein assigned to them, and all such
definitions shall be applicable to both the singular and plural forms of the
terms defined;
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(b) accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with accounting principles generally
accepted in the United States of America;
(c) "Agreement" or "this Agreement" means this Agreement as
amended and restated on the date hereof, or if subsequently modified, amended or
supplemented, as so modified, amended or supplemented and in effect at the time
of reference thereto; and
(d) the words "herein," "hereof," "hereunder" and other words
of similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision of this Agreement.
1.2. Terms Defined. Subject to the provisions of Section 1.1 hereof, the
following terms shall have the respective meanings set forth below:
"Advance" shall mean any advance made or to be made by the Banks to any
Borrower pursuant to Section 2.1 hereof.
"Affiliate" shall mean any Person that would be considered to be an
affiliate of the Company under Rule 144(a) of the Rules and Regulations of the
Securities and Exchange Commission, as in effect on the date hereof, if the
Company was issuing securities.
"Agent" shall be as defined in the preamble hereto.
"Assessment Rate" shall mean, for any Interest Period, the net annual
assessment rate (rounded upwards, if necessary to the next higher 1/16 of 1%)
payable by the Agent to the Federal Deposit Insurance Corporation (or any
successor) for such Corporation's (or such successor's) insuring time deposits
made in Dollars at offices of the Agent in the United States of America during
the most recent period for which such rate has been determined prior to the
commencement of such Interest Period.
"Banks" shall be as defined in the preamble hereto, and any other
Person who becomes an assignee of any rights and obligations of a Bank pursuant
to ss.12.
"Base Rate" shall mean for any day, the higher of (a) the Federal Funds
Effective Rate for such day plus 1/2 of 1% per annum and (b) the rate of
interest announced from time to time by the Agent at its head office as its base
rate. Any change in the Base Rate resulting from a change in the "base rate" or
the Federal Funds Effective Rate is to be effective at the beginning of the day
of such change.
"Base Rate Advance" shall mean any Advance denominated in Dollars upon
which interest will accrue based on the Base Rate.
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"Base Rate Loan" shall mean the principal or a relevant portion of the
principal amount outstanding from time to time after the Commitment Expiry Date
denominated in Dollars upon which interest will accrue based on the Base Rate.
"Borrower" shall mean the Company or any Borrowing Subsidiary, and
"Borrowers" shall mean the Company and each Borrowing Subsidiary.
"Borrowing Base" as determined at any date, means (a) eighty percent
(80%) of the aggregate amount of Eligible Accounts Receivable determined at such
date, plus (b) ten percent (10%) of Eligible Inventory determined as of such
date.
"Borrowing Date" shall mean, in relation to any Advance, the day on
which that Advance is made or to be made to a Borrower.
"Borrowing Subsidiary" shall mean a wholly-owned Subsidiary of the
Company which shall have delivered to each of the Banks an election to become a
Borrower, in substantially the form of Exhibit B, duly executed by such
Subsidiary and the Company, and a promissory note, in the form of Exhibit C,
appropriately completed, duly executed by such Subsidiary.
"Business Day" shall mean a day on which banks are open for business in
Boston, Massachusetts, New York, New York and San Francisco, California, and if
(a) a Eurodollar Rate Advance is involved, a day on which dealings in Dollars
and in foreign currency and exchange can be carried on in the relevant interbank
Eurodollar market and dollar settlements of such dealings are able to be
effected in New York City, and (b) if a CD Rate Advance is involved, a day on
which the Agent may determine its CD Rate, and (c) if any currency other than
Dollars is involved, a day on which dealings in Dollars and in foreign currency
and exchange can be carried on in the principal financial center of the country
in which such currency is legal tender.
"CD Rate" shall mean, for any Interest Period, an interest rate per
annum determined by the Agent pursuant to the following formula:
Domestic CD Rate* + Assessment Rate
-----------------
CD Rate = 1.00 - CD Reserve Percentage
*The components of the fraction to be rounded upward, if necessary, to
the next higher 1/16 of 1%.
"CD Rate Advance" shall mean any Advance denominated in Dollars upon
which interest will accrue based on the CD Rate.
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"CD Rate Loan" shall mean the principal or a relevant portion of the
principal amount outstanding from time to time after the Commitment Expiry Date
denominated in Dollars upon which interest will accrue based on the CD Rate.
"CD Reserve Percentage" shall mean for any day, that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the reserve requirement (including without limitation any marginal,
emergency, supplemental, special or other reserves) for a member bank of the
Federal Reserve System in Boston with deposits exceeding $1 billion in respect
of new time deposits in Boston having a maturity comparable to the Interest
Period for a CD Rate Advance or CD Rate Loans in an amount of $100,000 or more.
The CD Rate shall be adjusted automatically on and as of the effective date of
any change in the CD Reserve Percentage.
"Commitment" shall mean with respect to each Bank, the amount set forth
on Schedule 1 hereto as the amount of such Bank's commitment to make Advances to
the Borrower, as the same may be reduced from time to time, or if such
commitment is terminated pursuant to the provisions hereof, zero.
"Commitment Expiry Date" shall have the meaning assigned to that
term in Section 2.2. hereof.
"Commitment Fee" shall have the meaning assigned to that term in
Section 2.5(a) hereof.
"Commitment Percentage" shall mean with respect to each Bank, the
percentage set forth on Schedule 1 hereto as such Bank's percentage of the
aggregate Commitment of all the Banks, and with respect to the Term Loan, the
percentage amount set forth on Schedule 1 hereto of such Bank's commitment with
respect to the Term Loan.
"Consolidated" shall mean, as applied to any term used in this
Agreement, the relevant figures for the Company and its Subsidiaries on a
consolidated basis determined in accordance with generally accepted accounting
principles after eliminating all material inter-company items and minority
interests.
"Consolidated Tangible Net Worth" shall mean the consolidated capital
and retained earnings accounts of the Company and its Subsidiaries determined in
accordance with generally accepted accounting principles, but deducting
therefrom (without duplication of deductions) the net book value, after
deducting reserves applicable thereto, of all intangible assets, including
without limitation good will, trademarks, trade names, copyrights, patents and
rights in any thereof and unamortized debt discount and expense.
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"Contingent Liabilities" shall mean any guarantees, endorsements,
agreements to purchase or provide funds for the payment of obligations of
others, or other liabilities which would be classified as contingent in
accordance with generally accepted accounting principles, excluding, however,
(a) guarantees of the Indebtedness of consolidated Subsidiaries, (b) product
warranties given in the ordinary course of business and (c) endorsement of
checks or other negotiable instruments for deposit or collection in the ordinary
course of business.
"Convert," "Conversion," and "Converted" refers to the conversion of CD
Rate Advances, Base Rate Advances or Eurodollar Rate Advances into Advances of
another type.
"Current Ratio" shall mean Consolidated current assets divided by
Consolidated current liabilities.
"Default" shall have the meaning assigned to that term in Section 8
hereof.
"Discounted Trade Receivables" shall mean trade receivables, bills or
notes discounted with banks.
"Dollar(s)" and "U.S.$" shall mean dollars of the United States of
America.
"Dollar Equivalent" shall mean with respect to an amount of any
currency other than Dollars, the amount of Dollars equivalent thereto as
calculated pursuant to Section 2.7(b) hereof.
"Domestic CD Rate" shall mean, with respect to any CD Rate Advance or
CD Rate Loans for any Interest Period, the rate determined by the Agent to be
the prevailing rate per annum bid at 10:00 a.m., Boston time, (or as soon
thereafter as practicable) on the first day of any Interest Period for the
purchase at face value from the Agent of its certificates of deposits in an
amount comparable to the portion of the CD Rate Advance or CD Rate Loans to be
made by the Agent to which such Interest Period applies and having a maturity
comparable to such Interest Period.
"Eligible Accounts Receivable" as determined at any date, means rights
of the Company and its Subsidiaries on a Consolidated basis to payment for the
sale by the Company or its Subsidiaries of products or services sold and
delivered or to be delivered within a reasonable time thereafter by the Company
or its Subsidiaries and invoiced or to be invoiced within a reasonable time
thereafter, all in the ordinary course of business prior to such date, except
accounts receivable (a) owing by any Person which is an Affiliate of the Company
or any Subsidiary of the Company or (b) which have not been paid within 120 days
of the earlier to occur of the shipment date or the invoice date.
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"Eligible Assignee" shall mean any of (a) a commercial bank or finance
company organized under the laws of the United States, or any State thereof or
the District of Columbia, which has an investment grade rating of A- or better
by Standard & Poor's, Moody's or Duff & Phelps and having total assets in excess
of $1,000,000,000; (b) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof or the District of
Columbia, which has an investment grade rating of A- or better by Standard &
Poor's, Moody's or Duff & Phelps, and having a net worth of at least
$100,000,000, calculated in accordance with generally accepted accounting
principles; (c) a commercial bank organized under the laws of any other country
which is a member of the Organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, which has an
investment grade rating of A- or better by Standard & Poor's, Moody's or Duff &
Phelps, and having total assets in excess of $1,000,000,000, provided, that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (d) the central
bank of any country which is a member of the OECD; and (e) if, but only if, any
Event of Default has occurred and is continuing, any other bank, insurance
company, commercial finance company or other financial institution or Person
approved by the Agent, such approval not to be unreasonably withheld.
"Eligible Inventory" as determined at any date, means the net book
value, as reflected on the books of the Company and its Subsidiaries on a
Consolidated basis in accordance with generally accepted accounting principles,
of raw materials, work-in-process and finished goods held by the Company or its
Subsidiaries after taking into account charges and liens against or with respect
to such inventory.
"Environmental Laws" shall mean any judgment, decree, order, law,
license, rule or regulation pertaining to environmental matters, including
without limitation, those arising under the Resource Conservation and Recovery
Act, the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, the Superfund Amendments and Reauthorization Act of 1986, the
Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances Control
Act or any other federal, state or local statute, regulation, ordinance, order,
or decree, or common law, whether in existence now or hereafter enacted, and as
such may be amended from time to time, relating to health, safety or the
environment.
"Eurodollar Rate" shall mean, in relation to each Interest Period
relating to a Eurodollar Rate Advance or Eurodollar Rate Loan, the annual rate
of interest determined by the Agent to be the sum of (a) the Eurodollar Reserve
Charge plus (b) the percentage annual rate of interest determined by the Agent
as being that rate at which deposits of the currency in which the relevant
Advance or Eurodollar Rate Loan is to be denominated during such Interest Period
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are being offered to the Agent by prime banks in any interbank Eurodollar market
selected by the Agent in good faith, at or about the time of the quotation
thereof to such Borrower, for delivery on the first day of such Interest Period,
and for the number of days comprised therein, in amounts equal (as nearly as may
be) to the principal amount of the Agent's portion of the Advance or Eurodollar
Rate Loan to which such Interest Period relates.
"Eurodollar Rate Advance" shall mean any Advance denominated in an
Optional Currency or in Dollars upon which interest will accrue based on the
Eurodollar Rate.
"Eurodollar Rate Loan" shall mean the principal or a relevant portion
of the principal amount outstanding from time to time after the Commitment
Expiry Date denominated in Dollars upon which interest will accrue based on the
Eurodollar Rate.
"Eurodollar Reserve Charge" shall mean, subject to revision pursuant to
Section 2.13(a), for any Interest Period to which the Eurodollar Rate is to be
applicable an annual rate determined on the Rate-fixing Day pursuant to the
following formula (with the Eurodollar Rate and the Reserve Rate expressed as a
decimal):
Eurodollar Rate - Eurodollar Rate x 100
----------------
1.00 - Reserve Rate
"Event of Default" shall have the meaning assigned to that term in
Section 8 hereof.
"Excess Amount" shall have the meaning specified in Section 2.5 hereof.
"Excess Utilization Amount" shall have the meaning specified in Section
2.5(b) hereof.
"Federal Funds Effective Rate" for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business 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 Payment Date" shall mean the date specified as such in Section
2.10(a) hereof.
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"Guaranteed Obligation" shall have the meaning specified in Section 7.1
hereof.
"Indebtedness" shall mean all indebtedness for borrowed money or credit
received other than trade debt or other similar obligations incurred in the
ordinary course of business.
"Hazardous Substance" shall mean any hazardous waste as defined by
42 U.S.C. ss.6903(5),any hazardous substance as defined by 42 U.S.C. ss.9601(14)
,any pollutant or contaminant as defined by 42 U.S.C. ss.9601(33) and any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any environmental law.
"Interest Payment Date" shall mean, with respect to CD Rate Advances,
CD Rate Loans, Eurodollar Rate Advances or Eurodollar Rate Loans, the last day
of any Interest Period, and with respect to Base Rate Advances or Base Rate
Loans, any date when interest is due and payable as provided under Section
2.8(c) hereof.
"Interest Period" shall mean,
(a) With respect to each Eurodollar Rate Advance and
Eurodollar Loan (i) initially as specified by a Borrower in its notice of
borrowing, the period commencing on the Borrowing Date, or, in the case of a
Conversion into Eurodollar Rate Advances and Eurodollar Rate Loans, commencing
on the date of such Conversion, and expiring 1, 2 or 3 months thereafter and
(ii) with respect to subsequent Eurodollar Rate Advances and Eurodollar Rate
Loans as specified by such Borrower in a written notice furnished to the Agent
no later than 10:00 a.m. Boston time three (3) Business Days prior to the
Rate-fixing Day with respect to such Eurodollar Rate Advance, any successive
periods of 1, 2 or 3 months commencing on the same day on which the next
preceding Interest Period with respect to such Eurodollar Rate Advance and
Eurodollar Rate Loan shall have expired. If a Borrower does not elect otherwise,
each Interest Period with respect to a Eurodollar Rate Advance and Eurodollar
Rate Loan shall be three months. The number of days in each Interest Period and
the particular day on which each Interest Period ends and the next begins shall
be fixed by the Agent in accordance with the Agent's generally accepted practice
in the relevant foreign currency deposits market. If any Interest Period would
otherwise end on a day which is not a Business Day, such Interest Period shall
end and the next Interest Period shall commence on the next preceding or the
next succeeding day which is a Business Day as determined conclusively by the
Agent in accordance with the then current bank practice in the relevant
interbank Eurodollar market.
(b) With respect to each CD Rate Advance and CD Rate Loan (i)
initially as specified by a Borrower in its notice of borrowing, the period
commencing on the Borrowing Date, or, in the case of a Conversion into CD Rate
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Advances and CD Rate Loans, commencing on the date of such Conversion, and
expiring 30, 60 or 90 days thereafter, and (ii) with respect to subsequent CD
Rate Advances and CD Rate Loans, as specified by such Borrower in a written
notice furnished to the Bank no later than 10:00 a.m. Boston time three (3)
Business Days prior to the last day of the Interest Period with respect to such
CD Rate Advance and CD Rate Loan, any successive periods of 30, 60 or 90 days
commencing on the same day on which the next preceding Interest Period with
respect to such CD Rate Advance and CD Rate Loan shall have expired. If a
Borrower does not timely elect a new Interest Period with respect to a CD Rate
Advance, such CD Rate Advance shall, on the last day of the current Interest
Period, convert into a Base Rate Advance or Base Rate Loan. If any Interest
Period would otherwise end on a day which is not a Business Day, such Interest
Period shall end and the next Interest Period shall commence on the next
succeeding Business Day.
(c) With respect to each Base Rate Advance or Base Rate Loan,
the period commencing on the Borrowing Date of such Advance or Term Loan and
expiring on the date when the Base Rate Advance or Base Rate Loan is repaid or,
as the case may be, converted to a CD Rate Advance, CD Rate Loan, Eurodollar
Rate Advance or Eurodollar Rate Loan.
No Interest Period shall have an Interest Payment Date which occurs
after the Final Repayment Date or which is not on a Business Day.
"Investments" shall mean the aggregate of all expenditures made and all
liabilities incurred (contingently or otherwise) for the acquisition of stock or
Indebtedness of, or for loans, advances, capital contributions or transfers of
property to, or obligations of, any Person.
"Lease Payments" shall mean payments paid or payable under operating or
financial leases of real or personal property.
"Leverage Ratio" shall mean Consolidated Liabilities less deferred
income taxes, divided by Consolidated Tangible Net Worth.
"Liabilities" shall mean liabilities of the Company and its
Subsidiaries determined in accordance with generally accepted accounting
principles but deducting therefrom Subordinated Indebtedness.
"Loan" shall mean with respect to each Borrower, collectively, the
aggregate principal amount of all Advances or Term Loans, as the case may be,
made or to be made by the Banks to the Borrowers upon the terms and subject to
the conditions contained in this Agreement, and "Loans" shall mean all such
loans.
"Loan Account(s)" shall have the meaning specified in Section 2.6(e)
hereof.
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"Loan Documents" shall mean this Agreement and the Notes.
"Majority Banks" shall mean Banks holding at least 51% of the aggregate
outstanding principal amount of the Loans, or if no principal is outstanding, of
the Commitment.
"Margin" shall mean the following percentage per annum, which shall be
in effect for the following periods except as provided below: (i) during the
period from the date hereof until the Commitment Expiry Date, (x) with respect
to CD Rate Advances, three-quarters of one percent (3/4%) per annum, and (y)
with respect to Eurodollar Rate Advances, one-half of one percent (1/2%) per
annum, and (z) with respect to Base Rate Advances, zero percent (0%) per annum;
and (ii) during the period commencing from the Commitment Expiry Date until all
obligations of the Borrowers hereunder have been satisfied, (A) with respect to
CD Rate Loans, one percent (1%) per annum, (B) with respect to Eurodollar Rate
Loans, three-quarters of one percent (3/4%) per annum, and (C) with respect to
Base Rate Loans, one quarter of one percent (1/4%) per annum.
"Money Market Instruments" shall mean direct obligations of the United
States Government maturing within one year from the date of acquisition thereof,
instruments issued or guaranteed by United States commercial banks or bank
holding companies having total stockholders' equity in excess of $100,000,000,
or commercial paper rated A-1 or P-1 by Moody's Investors Service, Inc. or
Standard & Poor's Corporation, respectively.
"Net Working Capital" shall mean Consolidated current assets less
Consolidated current liabilities.
"Notes" shall have the meaning specified in Section 2.6(f) hereof.
"Obligations" shall mean all indebtedness, obligations and liabilities
of the Company and any of its Subsidiaries to any of the Banks and the Agent,
individually or collectively, existing on the date of this Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or incurred under this
Agreement or any of the other Loan Documents or in respect of any of the
Advances or Loans made or any of the Notes, or arising or incurred in connection
with any documents, agreements or instruments executed in connection therewith,
or other instruments at any time evidencing any thereof.
"Optional Currency" shall mean any currency which is freely convertible
into Dollars and which is traded on any interbank foreign currency deposits
market selected by the Agent in good faith.
"Process Agent" shall have the meaning specified in Section 11.10
hereof.
15
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"Property" shall mean, collectively, all properties owned or operated
by the Company or any of its Subsidiaries from time to time.
"Rate-fixing Day" shall mean the second Business Day preceding the
Business Day on which an Interest Period begins.
"Release" shall have the meaning specified in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C.
ss.ss.9601 et seq. ("CERCLA") and the term "Disposal" (or "Disposed") shall have
the meaning specified in the Resource Conservation and Recovery Act of 1976, 42
U.S.C. ss.ss.6901 et seq. ("RCRA") and regulations promulgated thereunder;
provided, that in the event either CERCLA or RCRA is amended so as to broaden
the meaning of any term defined thereby, such broader meaning shall apply as of
the effective date of such amendment and provided further, to the extent that
the laws of a state wherein the property lies establishes a meaning for
"Release" or "Disposal" which is broader than specified in either CERCLA or
RCRA, such broader meaning shall apply.
"Reserve Rate" means the reserve rate (including without limitation any
marginal, emergency, supplemental, special or other reserves) for Eurocurrency
Liabilities if such liabilities were outstanding (expressed as a decimal) set
forth in Regulation D of the Board of Governors of the Federal Reserve System
(or any successor or similar regulation relating to such reserve requirements)
determined by the Agent to be the rate or weighted average rate which would be
applicable to an Interest Period.
"Subordinated Indebtedness" shall mean unsecured Indebtedness for money
borrowed which have maturities and amounts and are subject to such covenants and
subordination provisions as are satisfactory to the Majority Banks as evidenced
by their written approval thereof.
"Subsidiary" shall mean any present or future corporation a majority of
whose shares of stock of any class (however designated) having ordinary voting
power for the election of a majority of the members of the board of directors or
other governing body of such corporation (other than stock having such power
only by reason of the happening of a contingency) shall at the time be owned by
the Company or by one or more of the Company's Subsidiaries. A wholly-owned
Subsidiary is a Subsidiary all of the capital stock (exclusive of directors'
qualifying shares) of which is owned directly or indirectly by the Company.
"Total Commitment" shall mean the sum of the Commitments of the Banks,
as in effect from time to time.
"Term Loan" shall mean either a Base Rate Loan, a CD Rate Loan or a
Eurodollar Rate Loan.
16
-12-
"Total Loan" shall mean, with respect to each Borrower, the aggregate
amount of the Loan outstanding to such Borrower, and "Total Loans" shall mean
all such loans.
SECTION 2. THE LOANS.
2.1. Obligations of the Banks to Make Advances. Each of the Banks
severally agrees, subject to the terms and conditions of this Agreement, to make
its portion of Advances, in Dollars and/or, subject to Section 2.7 hereof, in an
Optional Currency, to the Borrowers from time to time from the date hereof to
and including the Commitment Expiry Date upon notice by the Borrower of the
Advance to the Agent given in accordance with ss.2.6, such sums as are requested
by such Borrower up to a maximum aggregate amount outstanding (after giving
effect to all amounts requested) at any one time equal to such Bank's
Commitment, provided, that the sum of the outstanding amount of the Advances
(after giving effect to all amounts requested) shall not at any time exceed the
lesser of (a) the Total Commitment and (b) the Borrowing Base. The Advances
shall be made pro rata in accordance with each Bank's Commitment Percentage.
Each request for an Advance hereunder shall constitute a representation and
warranty by the Borrower that the conditions set forth in ss.3.2, in the case of
the initial Advances to be made on the Closing Date, and ss.3.1 in the case of
all other Advances, have been satisfied on the date of such request.
2.2. Termination of Commitment. The Total Commitment (and the
Commitment of each Bank) will terminate in full at 10:00 a.m. Boston time,
January 31, 1999 unless earlier terminated as provided in this Agreement (the
"Commitment Expiry Date").
2.3. Reduction or Termination by the Company of Banks' Commitment.
Subject to the terms and conditions of this Agreement, the Company may at any
time on or prior to the Commitment Expiry Date reduce, or terminate entirely,
the Total Commitment hereunder in a minimum principal amount of $500,000 or any
multiple thereof by giving at least two Business Days' prior written notice
thereof to the Agent, whereupon the Commitments of the Banks shall be reduced
pro rata in accordance with their respective Commitment Percentages of the
amount specified in such notice or, as the case may be, terminated. Upon the
effective date of any such reduction or termination, the Company shall pay to
the Agent for the respective accounts of the Banks, or cause to be made, a
payment against principal of the Loans in such amount as will reduce the unpaid
principal balance thereof to an amount not in excess of the desired reduced
amount of the Total Commitment or, if the Total Commitment is being terminated,
pay, or cause to be paid, all obligations then due hereunder and accrued
Commitment Fees. No reduction or termination of the Commitments may be
reinstated.
17
-13-
2.4. Reduction of Optional Currency Borrowings. The principal amount
available to the Borrowers in Optional Currencies pursuant to Section 2.7(a)
hereof shall be reduced pro rata in accordance with each Bank's Commitment
Percentage of the amount by which the Total Commitment is reduced under Section
2.3 hereof.
2.5. Fees.
(a) The Company agrees to pay to the Agent for the respective
accounts of the Banks on the first day of each calendar quarter
hereafter until the Commitment Expiry Date, and on the Commitment
Expiry Date, a commitment fee (the "Commitment Fee") on the average
daily amount by which the Total Commitment exceeds the aggregate
outstanding and unpaid Loans during the preceding three-month period or
portion thereof (such amount is referred to as the "Excess Amount").
The Commitment Fee payable to the Agent for the respective accounts of
the Banks shall equal such Bank's Commitment Percentage of one-tenth of
one percent (.10%) per annum computed on the Excess Amount. For
purposes of determining the Excess Amount, the Dollar Equivalent of
each Advance in an Optional Currency as determined on the date of the
making of such Advance shall be the amount of the Total Commitment used
in connection with such Advance, and no further adjustments shall be
made with respect to the Excess Amount based upon fluctuations
thereafter in the value of the Optional Currency of such Advance,
subject, however, to the provisions of Section 2.7(c).
(b) The Company agrees to pay to the Agent for the account of
each Bank a facility fee (the "Facility Fee") on January 31, 1996 and
each January 31 thereafter through and including January 31, 1998 equal
to one-eighth of one percent (1/8%) of the Total Commitment in effect
on the day immediately preceding such date. The portion of the Facility
Fee payable to each Bank shall equal such Bank's Commitment Percentage
thereof.
(c) The Company agrees to pay to the Agent solely for the
account of the Agent at the end of each calendar quarter commencing on
March 31, 1996 until the date on which (i) all Loans and accrued
interest thereon have been paid in full together with all other
Obligations outstanding at the time of such payment and (ii) the Total
Commitment has been terminated in full, whichever last occurs, an
Agent's fee in the amount of $6,250 per quarter, and if such date does
not occur at the end of a calendar quarter, the Agent's Fee shall be
prorated for that quarter.
18
-14-
2.6. Making the Advances.
(a) Subject to the terms and conditions of this Agreement, a
Borrower may obtain Advances in the principal amount of $1,000,000 or
higher integral multiples of $100,000 or the equivalent thereof in an
Optional Currency from the Banks from time to time from and after the
date hereof, but not after the Commitment Expiry Date up to a maximum
aggregate amount outstanding (after giving effect to all Advances
requested) at any one time equal to the lesser of (a) the Total
Commitment or (b) the Borrowing Base.
(b) Whenever a Borrower desires and is entitled hereunder to
receive any Advance, the Borrower shall notify the Agent in writing in
the case of a Base Rate Advance not later than 10:00 a.m., Boston time,
on the Business Day prior to the date of the Advance or in the case of
a CD Rate Advance not later than 10:00 a.m. Boston time, three (3)
Business Days prior to the proposed Borrowing Date with respect to such
Advance, or in the case of a Eurodollar Rate Advance not later than
10:00 a.m., Boston time, five (5) Business Days prior to the
Rate-fixing Day with respect to such Advance, of (i) the Borrowing Date
(which must be a Business Day) and the amount of such Advance, stated
either in Dollars or, subject to Section 2.7 hereof, in an Optional
Currency, (ii) with respect to a CD Rate Advance or a Eurodollar Rate
Advance, the initial Interest Period of such Advance, and (iii) the
Borrower's bank account to which payment of the proceeds thereof is to
be made. The Agent will give the Banks prompt notice of each notice of
borrowing, which in the case of a Eurodollar Rate Advance shall be at
least four Business Days prior to the date of such Advance, and of each
other notice received from the Borrowers hereunder.
(c) If, on or prior to the Borrowing Date of any requested
Advance, the Total Commitment has not terminated in full and the
applicable conditions of Section 3 hereof are satisfied, the Banks will
advance to the Borrower making the request their respective Commitment
Percentages of the requested Advance by credit to the Borrower's
specified account with the Agent or by such other means as agreed upon
by the Borrower and the Agent in immediately available funds not later
than the close of business on such Borrowing Date.
(d) The failure of any Bank to make its pro rata share of any
Advance shall not relieve any other Bank of its obligation, if any,
hereunder to make its pro rata share of an Advance on the proposed
Borrowing Date, but no Bank shall be responsible for the failure of the
19
-15-
other Bank to make the part of the Advance to be made by such other
Bank on the Borrowing Date.
(e) The obligations of the Company to repay all amounts
borrowed by it hereunder, all interest thereon and all fees and other
amounts payable by it in respect thereto shall be evidenced by this
Agreement and by individual loan accounts (collectively, the "Loan
Accounts" and individually, a "Loan Account") maintained by each of the
Banks, it being the intention of the parties hereto that the Company's
obligation with respect to its Loan are to be evidenced only as stated
herein and not by separate promissory notes. Each Bank shall render to
the Company and the Agent, on or before the fifth Business Day of each
calendar quarter, a statement of its Loan Account as of the last day of
the prior calendar quarter, which statement shall, in the absence of
manifest error, be considered correct and binding upon the Company
unless the Company notifies such Bank and the Agent to the contrary
within 45 days from the receipt of such statement; provided that the
failure of any Bank to render any such statement in a timely fashion
shall not affect or impair the validity or binding nature of any Loan
Account.
(f) The obligations of each Borrowing Subsidiary to repay all
amounts borrowed by it under this Agreement, all interest thereon and
all fees and other amounts payable by it in respect thereto shall be
evidenced by its promissory notes, substantially in the form of Exhibit
C hereto, appropriately completed (collectively, the "Notes" and
individually, a "Note") dated the applicable Borrowing Date and payable
severally to the order of each of the Banks in a principal amount equal
to such Bank's Commitment Percentage of the Total Commitment.
2.7. Optional Currencies.
(a) A Borrower may elect, prior to the Commitment Expiry Date,
to draw down a portion of the Total Commitment in, or convert Loans
outstanding to, an Optional Currency (if any), provided that the
aggregate principal amount of Loans outstanding immediately following
any such drawdown or conversion shall not exceed the Total Commitment
then in effect. Amounts proposed to be converted at any one time under
this Section 2.7 shall not be less than U.S. $500,000 and shall be an
integral multiple thereof, or the Dollar Equivalent in any Optional
Currency. In order to exercise the foregoing option a Borrower must
deliver to the Agent a written notice, subject to any other notice
requirements under this Agreement, designating the currency into which
the designated portion of the Borrower's Loan is to be drawn down or,
20
-16-
as the case may be, converted, at least five (5) Business Days prior to
the commencement of the subsequent Interest Period relating to such
portion of the Borrower's Loan and any such conversion shall be
effected on such date. If any such notice is not delivered to the Agent
by such Borrower within the required time, the Borrower shall be deemed
to have elected that the relevant portion of the principal amount of
the Borrower's Loan continue to be denominated in the currency in which
it then currently stands denominated. No Interest Period during which a
portion of the principal of a Borrower's Loan is to be denominated in
any Optional Currency shall have an Interest Payment Date which occurs
after the Commitment Expiry Date.
If any Bank determines (which determination shall be
conclusive), and notifies the Agent on or prior to the second Business
Day preceding the first day of any Interest Period during which a
portion of the principal of a Borrower's Loan is to be denominated in
any Optional Currency, that the Optional Currency is not freely
transferable and convertible into Dollars or that it will be
impracticable for such Bank to fund its portion of the Advance in such
Optional Currency, then the Agent shall so notify the Borrower making
the election, and that portion of the principal amount of the
Borrower's Loan shall, notwithstanding any contrary election by such
Borrower or any other provisions hereof, be denominated in Dollars and
be in the form of a Base Rate Advance.
(b) For all purposes of this Agreement, the amount in one
currency which shall be equivalent on any particular date to a
specified amount in another currency shall be that amount (as
conclusively ascertained by the Agent absent manifest error) in the
first currency which is or could be purchased by the Agent (in
accordance with its normal banking practices) with such specified
amount in the second currency in any interbank foreign currency
deposits market selected by the Agent in good faith for delivery on
such date at the spot rate of exchange prevailing on such date.
(c) In the event that any portion of the funds available under
the terms of this Agreement is denominated in one or more Optional
Currencies, the Dollar Equivalent of such portion of the funds shall be
calculated pursuant to paragraph (b) above. The amount so determined
shall then be added to the amount already outstanding in Dollars for
the purpose of determining the remaining availability of funds under
Section 2.1 and Section 2.7(a) hereof and any required repayments under
Section 2.10(c) hereof. Notwithstanding the foregoing, if at any time
prior to the Commitment Expiry Date, the sum of (a) the aggregate
21
-17-
principal amounts outstanding hereunder denominated in Dollars plus (b)
Dollar Equivalent of the aggregate principal amount outstanding
hereunder shall exceed the lesser of the Total Commitment or the
Borrowing Base as a result of fluctuations in respective conversion
rates, each Borrower shall pay immediately, upon demand made by the
Agent, all amounts required in order to reduce the Loans outstanding to
the lesser of the Total Commitment and the Borrowing Base.
2.8. Interest Payable on the Loans.
(a) With respect to any Advance or Term Loan denominated in
Dollars, the rate of interest which shall be jointly and severally
payable by the Borrowers on the unpaid principal outstanding to the
Borrowers shall be the annual percentage rate of interest determined by
the Agent to be the sum of (i) the applicable Margin in effect plus
(ii) the Base Rate, or if the Borrower has so elected pursuant to this
paragraph (a), the Eurodollar or CD Rate relating to the Interest
Period with respect to any such Advance or Term Loan. Any Borrower may
elect, prior to the Commitment Expiry Date (A) to draw down a portion
of the funds available under this Agreement in Dollars upon which
interest will accrue based on the Eurodollar Rate or the CD Rate or (B)
to convert any Base Rate Advance or Base Rate Loan, CD Rate Advance or
CD Rate Loan or Eurodollar Rate Advance or Eurodollar Rate Loan
denominated in Dollars to or from any other type of Advance or Term
Loan, on the last day of the Interest Period with respect to the
Advance or Term Loan to be converted. In order to exercise the
foregoing option, a Borrower must deliver to the Agent a written notice
subject to any other notice requirements under this Agreement
designating the election of the basis on which the interest rate will
be determined at least five (5) Business Days prior to the commencement
of the Interest Period relating to such portion of the Borrower's Loan
on which such conversion is to occur.
(b) The rate of interest which shall be payable by a Borrower
on any portion of the principal of the Loan extended to such Borrower
which is denominated in an Optional Currency for the time being, and is
outstanding during each Interest Period relating thereto, shall be the
annual percentage rate of interest determined by the Agent to be the
sum of (i) the applicable Margin in effect plus (ii) the Eurodollar
Rate relating to such Interest Period.
(c) Interest shall be payable jointly and severally by the
Borrower, and the Borrowers hereby absolutely and unconditionally
22
-18-
jointly and severally promises to pay, to the Agent for the account of
the Banks in arrears in Dollars, or, as the case may be, in the
Optional Currency in which that portion of the principal amount of the
Loan extended to such Borrower, in respect of which payment is made, is
denominated (i) with respect to CD Rate Advances or CD Rate Loans or
Eurodollar Rate Advances or Eurodollar Rate Loans, on each Interest
Payment Date, provided, however, that if the duration of any such
Interest Period is longer than three months, the Borrower shall pay the
accrued interest on the last Business Day of each successive three
month period and (ii) with respect to Base Rate Advances or Base Rate
Loans, quarterly on the last day of each calendar quarter hereafter,
and on any earlier date when a Base Rate Advance or Base Rate Loan is
converted to a CD Rate Advance or CD Rate Loan or Eurodollar Rate
Advance or Eurodollar Rate Loan.
(d) Each determination of any interest rate by the Agent with
respect to any Loan shall be conclusive in the absence of manifest
error. Base Rate interest rates shall change as the Base Rate shall
change, and any change in the interest rates shall become effective as
of the beginning of the day during which such change in the Base Rate
occurs.
(e) Overdue principal and, to the extent permitted by
applicable law, overdue interest and other amounts overdue under any
provision of this Agreement shall bear interest at the rate per annum
determined by the Agent to be two per cent (2%) above (i) with respect
to Loans denominated in an Optional Currency, the rate then applicable
to the relevant Advances for funding periods not greater than six
months established by the Agent, in its discretion, from time to time
and (ii) with respect to Loans denominated in Dollars, the Base Rate.
Such interest on overdue principal and overdue interest and other
amounts overdue shall be payable on demand and shall continue to accrue
from the due date of such principal, interest or amounts and shall be
compounded monthly until the obligation of the Borrower in respect of
the payment thereof is discharged (whether before or after judgment).
2.9. Alternative Interest Rates.
(a) Except as otherwise provided in this Agreement, if on any
Rate-fixing Day on which the interest rate with respect to any Advance
or Term Loan is to be based on the Eurodollar Rate, the Agent shall
determine that it is unable to quote the Eurodollar Rate, or any Bank
shall determine that such Bank is unable to or it is impracticable for
it to fund the Advance or Term Loan for the requested Interest Period,
the Borrower shall be deemed to have elected that the Advances or Term
23
-19-
Loans be denominated in Dollars as Base Rate Advances.
(b) If any Bank shall in good faith determine that, by reason
of circumstances affecting the market for certificates of deposit
maintained by New York dealers of recognized standing, adequate and
reasonable means do not exist for such Bank to obtain bids for the
purchase of certificates of deposit on the first day of an applicable
Interest Period then (a) such Bank shall so notify the Agent and the
Agent shall notify the Borrower and the Banks, and (b) any Advances or
Term Loans which are the subject of such request by the Borrower shall
be Base Rate Advances.
2.10. Repayments and Prepayments of the Loans, etc.
(a) On and as of the Commitment Expiry Date, the principal
amount of the Loans then outstanding (the "Total Loan") shall be held
by the Banks on a pro rata basis in accordance with their respective
Commitment Percentages. Provided that no Event of Default has occurred
and is continuing, the Total Loan shall be payable in installments over
a term of two years as set forth in this paragraph (a). The Borrowers
jointly and severally hereby absolutely and unconditionally promise to
pay to the Agent for the accounts of the Banks ratably according to the
then outstanding principal amount of the Total Loan, on the last day of
April, July, October and January commencing on April 30, 1999, and
ending on January 31, 2001 (each of such 8 dates hereinafter referred
to as a "Repayment Date"), and there shall become absolutely due and
payable on each Repayment Date, a fixed installment of principal in an
amount equal to one-eighth of the Total Loan. All such repayments shall
be made in the currency in which the Loan to be repaid or any portions
thereof is denominated. The Borrowers jointly and severally hereby
absolutely and unconditionally agree to pay to the Agent for the
accounts of the Banks ratably according to the then outstanding
principal amount of the Total Loan, on January 31, 2001 (the "Final
Repayment Date"), and there shall become absolutely due and payable on
the Final Repayment Date, the entire unpaid principal amount of the
Total Loan outstanding on such date. In addition, the Borrowers each
agree to execute and deliver to each Bank prior to the close of
business on the Commitment Expiry Date, a term note (the "Term Note")
containing the terms set forth herein, which Term Note shall be in form
and substance satisfactory to the Banks.
(b) Each Borrower may, pursuant to this paragraph (b), elect
to prepay the principal of any Base Rate Advance or Base Rate Loan
outstanding at any time in full or in part without premium or penalty,
24
-20-
or to prepay the principal of any Eurodollar Rate Advance or Eurodollar
Rate Loan or CD Rate Advance or CD Rate Loan outstanding in full or in
part without premium or penalty on the Interest Payment Date of any
Interest Period relating to the unpaid principal of such Eurodollar
Rate Advance or Eurodollar Rate Loan or CD Rate Advance or CD Rate Loan
to be prepaid, provided that the amount of any prepayment of the unpaid
principal of any Advance pursuant to this paragraph (b) shall be in a
principal amount of such Advance or not less than $500,000 or the
equivalent thereof in the Optional Currency in which that portion of
the principal amount of the Advance in respect of which the payment is
to be made is denominated. Any and all amounts of the Term Loans
prepaid pursuant to this Section 2.10(b) shall be applied to the unpaid
principal amount of such Borrower's Total Loan in the inverse order of
maturity. Amounts prepaid pursuant to this paragraph (b) may, subject
to the terms and conditions of this Agreement, be reborrowed on or
before the Commitment Expiry Date.
(c) If at any time (i) on or prior to the Commitment Expiry
Date the sum of (1) the aggregate principal amounts outstanding
hereunder denominated in Dollars plus (2) the Dollar Equivalent of the
aggregate principal amount outstanding hereunder shall exceed the
lesser of (x) the Total Commitment and (y) the Borrowing Base (whether
as a result of fluctuations in the currency rates or otherwise), there
shall become absolutely due and payable, and one or more Borrowers, as
determined by the Company, hereby promises to pay to the Agent all
amounts required in order to reduce the principal amount outstanding to
the lesser of the Total Commitment and the Borrowing Base, or the
equivalent thereof in one or more Optional Currencies; and (ii) after
the Commitment Expiry Date the sum of (1) the aggregate principal
amounts outstanding hereunder denominated in Dollars plus (2) the
Dollar Equivalent of the aggregate principal amount outstanding
hereunder shall exceed (whether as a result of fluctuations in the
currency rates or otherwise) the permitted aggregate outstanding
principal amount of the Term Loans determined in accordance with
ss.2.10(a), there shall become absolutely due and payable, and one or
more Borrowers, as determined by the Company, hereby promises to pay to
the Agent all amounts required in order to reduce the principal amount
outstanding to the principal amount permitted to be outstanding
pursuant to ss.2.10(a).
(d) Upon each repayment or prepayment of any principal of any
Advance or Term Loans pursuant to any of the provisions of this
Agreement, each Borrower hereby absolutely and unconditionally promises
25
-21-
to pay to the Agent for the account of each Bank and there shall become
absolutely due and payable on the date of each such repayment or
prepayment, all of the unpaid interest accrued to such date on the
amount of the principal of the Advance or Term Loans being repaid or
prepaid on such date, together with all, if any, other sums then due
and payable hereunder in respect of the principal of the Advance or
Term Loans being repaid or prepaid on such date, including, but not
limited to, any sums payable in accordance with Section 2.14 hereof
which have been ascertained on or prior to the date of such repayment
or prepayment. Whenever any interest on and any principal of an Advance
or Term Loans is paid simultaneously hereunder, the whole amount paid
shall be applied first to interest then due and payable.
(e) Each repayment or prepayment of principal of less than the
entire unpaid principal amount owed by all of the Borrowers under this
Agreement and the Notes shall be allocated among the Banks in
proportion, as nearly as practicable, to the respective unpaid
principal debit balances of the Banks' Loan Accounts and/or principal
amounts of the Banks' Notes of the Borrowing Subsidiary which is the
obligor thereunder, with adjustments to the extent practical to
equalize any prior payments not exactly in proportion.
2.11. Payments and Computations.
(a) Each payment payable by a Borrower hereunder (i) if
denominated in Dollars shall be made to the Agent at its head office at
100 Federal Street, Boston, Massachusetts, in immediately available
funds, or, (ii) if denominated in any Optional Currency shall be made
in such immediately available funds as shall then be customary for
settlement at the place of payment of international transactions in
such Optional Currency, for the account of the Agent at a depository
designated by the Agent. Each Borrower authorizes the Agent and the
Banks to charge any of its respective accounts, other than payroll
accounts, with the Agent or the Banks for the amount of any payment due
hereunder.
(b) If any sum would, but for the provisions of this Section
2.11(b), become due and payable hereunder on a day which is not a
Business Day, then such sum shall become due and payable on either the
Business Day next preceding or the Business Day next succeeding the day
on which such sum would otherwise have become due and payable
hereunder, such Business Day to be selected (which selection shall be
conclusive and binding on each Borrower) by the Agent in accordance
26
-22-
with the then current banking practice in the relevant interbank
Eurodollar market or Boston, as the case may be and interest and
commitment fees hereunder shall be adjusted accordingly.
(c) All computations of interest and commitment fees payable
hereunder shall be made by the Agent on the basis of actual number of
days elapsed and on a 360-day year.
(d) Each determination by the Agent of an amount of interest
or commitment fee payable by the Borrower hereunder shall, save for
manifest error, be conclusive and binding upon the Borrower.
(e) Promptly upon receipt of all payments under this Agreement
or the Notes, the Agent shall pay to each of the Banks its pro rata
share thereof.
2.12. Payments to be Free of Deductions. All payments by the Borrowers
under this Agreement shall be made without set-off or counterclaim and free and
clear of and without deduction for any taxes, levies, imposts, duties, charges,
fees, deductions, withholdings, compulsory loans, restrictions or conditions of
any nature now or hereafter imposed or levied by any country or any political
subdivision thereof or taxing or other authority therein unless a Borrower is
compelled by law to make such deduction or withholding. If any such obligation
is imposed upon a Borrower with respect to any amount payable by it hereunder,
the Borrower will pay to the Agent for the account of each Bank, on the date on
which the said amount becomes due and payable hereunder, such additional amount
as shall be necessary to enable each Bank to receive the same net amount which
it would have received on such due date had no such obligation been imposed upon
the Borrower. Each Borrower will deliver promptly to the Agent certificates or
other valid vouchers for all taxes or other charges deducted from or paid with
respect to payments made by such Borrower hereunder.
2.13. Additional Costs, Changes in Circumstances, etc.
(a) Anything hereinbefore to the contrary notwithstanding, if
any present or future applicable law (which expression, as used in this
Agreement, includes statutes and rules and regulations thereunder and
interpretations thereof by any competent court or by any governmental
or other regulatory body or official charged with the administration or
the interpretation thereof and requests, directives, instructions and
notices at any time or from time to time heretofore or hereafter made
upon or otherwise issued to the Agent or any Bank by any central bank
or other fiscal, monetary or other authority, whether or not having the
27
-23-
force of law) shall (i) subject the Agent or any Bank to any tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature with
respect to this Agreement, the amount of such Banks' Commitment, or the
payment to the Agent or either Bank of any amounts due to it hereunder,
or (ii) materially change the basis of taxation of payments to the
Agent or any Bank of the principal or the interest on or any other
amounts payable to the Agent or any Bank hereunder, or (iii) impose or
increase or render applicable any special or supplemental special
deposit or reserve or similar requirements (whether or not having the
force of law) against assets held by, or deposits in or for the account
of, or any eligible liabilities of, or loans by an office of the Agent
or either Bank, or (iv) impose on the Agent or any Bank any other
condition or requirement with respect to this Agreement, the
Commitments, and the result of any of the foregoing is (A) to increase
the cost to any Bank of making, funding or maintaining all or any part
of the Loans, or (B) to reduce the amount of principal, interest or
other amount payable to any Bank hereunder, or (C) to require the Agent
or any Bank to make any payment or to forego any interest or other sum
payable hereunder, the amount of which payment or foregone interest or
other sum is calculated by reference to the gross amount of any sum
receivable or deemed received by the Agent or any Bank from any
Borrower hereunder, then, and in each such case, such Borrower will,
upon demand made by the Agent, pay to the Agent for its account or for
the account of any such Bank, as the case may be, such additional
amounts as will be sufficient to compensate them for such additional
cost, reduction, payment or foregone interest or other sum, provided
that the foregoing provisions of this sentence shall not apply in the
case of any additional cost, reduction, payment or foregone interest or
other sum resulting from any taxes charged upon or by reference to the
overall net income, profits or gains of the Agent or any Bank.
(b) If any Bank shall determine that any change in applicable
law shall make it unlawful for such Bank to comply with or to maintain
its obligations to fund Eurodollar Rate Advances or Eurodollar Rate
Loans or Advances or Term Loans in any Optional Currency hereunder in
the relevant interbank market, then such Bank shall notify the Agent
and the Agent shall notify the requesting Borrower of such
determination in writing. If the Agent so notifies such Borrower, then
(i) the Commitment and obligations to fund the Advances as Eurodollar
Rate Advances or Eurodollar Rate Loans or in such Optional Currency or
Currencies, as the case may be, shall terminate in full on and as of
the date of such notice, and (ii) such Advances or Term Loans shall on
the Interest Payment Date of any Interest Period which is current when
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the Borrower is so notified be converted to Base Rate Advances or Base
Rate Loans.
2.14. Indemnification for Losses. Each Borrower will, on demand by any
Bank at any time, indemnify such Bank against any losses, costs or expenses
which such Bank may at any time incur as a consequence of (a) the breach by such
Borrower of its obligations to borrow a CD Rate Advance or Eurodollar Rate
Advance on the Borrowing Date thereof, (b) the failure by such Borrower to pay,
punctually on the due date thereof, any amount payable hereunder, (c) the
accelerated payment of any obligations of such Borrower hereunder as the result
of an Event of Default, or (d) the repayment or prepayment of any principal
under a CD Rate Advance, CD Rate Loan, Eurodollar Rate Advance or Eurodollar
Rate Loan on a date other than an Interest Payment Date of an Interest Period
relating to such principal, such losses, costs or expenses to include, but not
to be limited to, (i) any costs incurred by such Bank in carrying funds which
were to have been borrowed by such Borrower or in carrying funds to cover the
amount of any overdue principal of or overdue interest on any Advance or Term
Loan, (ii) any interest payable by such Bank to lenders of the funds borrowed by
the Bank in order to carry the funds referred to in the immediately preceding
sub-clause (i), and (iii) any losses (including losses of anticipated profit)
incurred by such Bank in liquidating or re-employing funds acquired from third
parties to effect or maintain all or any part of any Advance or any portion
thereof.
2.15. Increased Capital Requirements. If (i) any change in law or any
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) or the interpretation thereof by a court or
governmental authority with appropriate jurisdiction or (ii) the implementation
of any risk-based capital guideline or requirement (whether or not having the
force of law) heretofore or hereafter issued by any government or governmental
or supervisory authority, affects the amount of capital required or expected to
be maintained by any of the Banks or any corporation controlling any of the
Banks and any Bank determines that the amount of capital required is increased
by or based upon the existence of the credit facility established hereunder or
any Loans made pursuant hereto then such Bank may notify the Company and the
Agent of such fact. To the extent that the costs of such increased capital
requirements are not reflected in the interest rates charged on the Loans, the
Company and the Bank shall thereafter attempt to negotiate in good faith an
adjustment to the compensation payable hereunder which will adequately
compensate such Bank in light of these circumstances. If the Company and the
Bank are unable to agree to such adjustment within thirty days of the day on
which the Company receives such notice, then commencing on the date of such
notice (but not earlier than the effective date of any such change), the fees
payable hereunder shall increase by an amount which will, in such Bank's
reasonable determination, provide adequate compensation (such compensation to
include, without limitation, an amount equal to any reduction of the rate of
return on assets or equity of such Bank allocable by such Bank to its portion of
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the Total Commitment or the Loans to a level below that which such Bank or any
controlling corporation could have achieved but for such requirements).
2.16. HLT Classification. In the event that after the date hereof the
Loan or the Total Commitment hereunder are classified on the Agent's books as a
"highly leveraged transaction" (an "HLT Classification") by the Agent or by any
governmental authority, central bank or comparable agency having jurisdiction
over the Agent, then the Agent shall promptly give notice of such HLT
Classification to the Company and the Banks whereupon the Agent, the Banks and
the Company shall commence negotiations in good faith to agree on a revised
commitment fee, interest rates and/or margins hereunder reflecting such HLT
Classification. In the event that the parties hereto fail to agree on such
revised commitment fee, interest rates and/or margins within 30 days of the
notice given by the Agent, then the Agent shall (i) if requested by the Majority
Banks, by five Business Days' notice to the Borrowers terminate the unused
portions of the Total Commitment and they shall thereupon terminate, and (ii) if
requested by the Majority Banks, by five Business Days' notice to the Borrowers
declare all outstanding Loans (together with accrued interest thereon and any
other amounts payable hereunder) to be, and all such amounts shall thereupon
become, absolutely and immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by each
Borrower. Each of the Borrowers hereby absolutely and unconditionally agrees to
pay to the Agent for the accounts of the Banks on the date of any such
acceleration all amounts payable by it hereunder.
SECTION 3. CONDITIONS OF LENDING.
3.1. Conditions Precedent to Each Advance. The effectiveness of this
Agreement and the obligations of the Banks to make any Advance or a Term Loan
are subject to the performance by the Company or a Borrowing Subsidiary, as the
case may be, of all its agreements theretofore to be performed by it hereunder
and to the satisfaction, prior to or at the time of making such Advance or Term
Loan, of the following conditions:
(a) The Agent shall have timely received from the Borrower any
notice required under any provisions of this Agreement, signed by any
one of the President, Treasurer, Controller or principal financial
officer of the Company and if the Borrower is a Borrowing Subsidiary,
an individual having comparable authority to any of such officers,
which request without more will constitute certification by such
officers as to the matters set forth in paragraphs (c), (d), (f) and
(h) below;
(b) The Agent shall have received duly certified copies of all
votes passed or other corporate action taken by the Board of Directors
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of the Borrower with respect to the transactions contemplated by this
Agreement;
(c) All necessary consents, waivers, approvals, amendments and
other action on the part of holders of Indebtedness or shares of
capital stock of any class or classes of the Company or any Subsidiary
necessary to have been obtained or effected in order to carry out the
transactions contemplated by this Agreement shall have been duly
obtained or effected and shall be in full force and effect and
adequate;
(d) Neither the consolidated financial position nor the
business as a whole of the Company and its Subsidiaries nor any
substantial portion of the properties and assets of the Company shall
have been materially adversely affected as a result of any legislative
or regulatory change or of any fire, explosion, tidal wave, flood,
windstorm, earthquake, landslide, land subsidence, accident,
condemnation or governmental intervention, order of any court or
governmental agency or commission, invalidity or expiration of any
patent or patent license, act of God or of the public enemy or of armed
forces, rebellion, strike, labor disturbance or embargo, or otherwise,
whether or not insured against, which would have a substantial
likelihood to impair materially the ability of the Company to fulfill
punctually its obligations under this Agreement;
(e) The making of an Advance or Term Loans shall not
contravene any law or rule or regulations thereunder or any
Presidential Executive Order binding on the Borrower or any Bank;
(f) The representations and warranties in Section 4 hereof and
all other representations in writing made by or on behalf of the
Company or any Subsidiary to the Banks in connection with the
transactions contemplated by this Agreement shall be true as of the
date on which they were made and shall also be true at and as of the
time of the making of the Advance with the same effect as if made at
and as of the time (except to the extent of changes resulting from
transactions contemplated by this Agreement and changes occurring in
the ordinary course of business which singly or in the aggregate are
not materially adverse, and to the extent that such representations and
warranties relate expressly to an earlier date) and no Event of Default
or condition which with notice or the passage of time or both would
constitute an Event of Default shall exist;
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(g) All fees, and all expenses and other amounts due and
payable pursuant hereto prior to or on the date of the Advance or Term
Loans shall have been paid; and
(h) The aggregate principal amount of the Loans outstanding
after giving effect to all Advances or converting to Term Loans
requested shall not exceed the lesser of the Total Commitment and the
Borrowing Base as determined on the date of the making of any requested
Advances or converting to Term Loans.
3.2. Conditions Precedent to First Advance.
(a) The obligation of the Banks to make the first Advance to
the Company or any other Borrower hereunder is subject to all of the
conditions set forth in Section 3.1 hereof and to the following further
conditions:
(i) The Company shall have certified to the Agent the
name and a specimen signature of each officer of the Company
authorized to sign requests for Advances on behalf of the
Company. The Agent and the Banks may rely conclusively on such
certification until the Agent receives notice in writing to
the contrary from the Company; and
(ii) The Agent shall have received an opinion
addressed to the Banks from Testa, Hurwitz & Thibeault,
counsel for the Company in form and substance satisfactory to
the Agent as to the matters specified in Sections 4.1.1,
4.1.2, 4.1.3, 4.1.5 and 4.1.14 and as to such other matters as
the Agent may reasonably request.
(b) The obligation of the Banks to make the first Advance to a
Borrowing Subsidiary is subject to all of the conditions set forth in
Section 3.1 hereof and to the following further conditions:
(i) The Borrowing Subsidiary shall have certified to
the Agent the name and a specimen signature of each officer of
the Borrowing Subsidiary authorized to sign requests for
Advances on behalf of the Borrowing Subsidiary. The Agent and
the Banks may rely conclusively on such certification until
the Agent receives notice in writing to the contrary from the
Borrowing Subsidiary;
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(ii) The Agent shall have received an opinion
addressed to the Banks from counsel to such Borrowing
Subsidiary who is reasonably acceptable to the Agent, in form
and substance satisfactory to the Agent, as to matters
specified in Sections 4.2.1, 4.2.2, 4.2.4 and 4.2.7 and as to
such other matters as the Agent may reasonably request; and
(iii) The Borrowing Subsidiary shall have executed
and delivered to the Agent a duly executed Note of such
Borrowing Subsidiary.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
4.1. Representations and Warranties of the Company. The Company
represents and warrants to the Banks that:
4.1.1. Organization, Good Standing, Authority, etc. The Company and
each Subsidiary (a) is a corporation duly organized, existing and in good
standing under the laws of the jurisdiction of its incorporation, (b) has all
requisite corporate power to own its property and conduct its business as now
conducted and as presently contemplated and (c) to the best of the Company's
knowledge, is duly qualified to do business and in good standing as a foreign
corporation in each jurisdiction where the nature of its properties or its
business requires such qualification except where the failure to so qualify will
not have a materially adverse effect on the Company and its Subsidiaries. The
execution, delivery and performance of this Agreement and the transactions
contemplated hereby are within the corporate authority of the Company, have been
authorized by proper corporate proceedings and do not and will not contravene
any provisions of its charter, other incorporation papers, by-laws or any stock
provision or any amendment thereof or, to the best of the Company's knowledge,
any provisions of law or of any indenture, agreement, instrument or undertaking
binding upon the Company or any Subsidiary. The execution, delivery and
performance of this Agreement by the Company will result in valid and legally
binding obligations of the Company, enforceable in accordance with their
respective terms, except as limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting generally the
enforcement of creditor's rights.
4.1.2. Governmental Approvals. No approval or consent of, or filing
with, any governmental agency or authority is required to make valid and legally
binding the execution, delivery and performance of this Agreement by the Company
and consummation of the transactions between the parties hereto contemplated
hereby by the Company.
4.1.3. Subsidiaries. Attached hereto as Schedule 4.1.3 is a schedule
which correctly identifies all present Subsidiaries. All of the issued and
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outstanding shares of stock of each Subsidiary have been validly issued and are
fully paid and non-assessable and, except for directors' qualifying shares and
as otherwise noted on Schedule 4.1.3, are owned by the Company or a Subsidiary
free and clear of any mortgage, pledge, lien, encumbrance, charge or restriction
on transfer. No rights to subscribe to additional shares of stock of any
Subsidiary have been granted.
4.1.4. Compliance with Other Instruments. Neither the Company nor any
Subsidiary is in material default under any provisions of its charter, other
incorporation papers, by-laws or stock provisions or any amendment thereof or of
any indenture or agreement or of any order, regulation, ruling or requirement of
a court or public body or authority by which it is bound.
4.1.5. Litigation. Except as disclosed in Schedule 4.1.5 attached
hereto, no action, suit, investigation or proceeding is pending or known to be
threatened against the Company or any Subsidiary before any court or
administrative agency which, if adversely determined, would materially impair
the ability of the Borrower and its Subsidiaries to carry on their consolidated
business substantially as now conducted or would materially adversely affect the
consolidated financial condition of the Borrower and its Subsidiaries.
4.1.6. No Adverse Contracts, etc. Neither the Company nor any
Subsidiary is subject to any provision of its charter, other incorporation
papers, by-laws or stock provisions or any amendment thereof or a party to or
otherwise bound by any indenture or agreement or bound by any order, regulation,
ruling or requirement of a court or public body or authority which will, under
current or foreseeable conditions, materially adversely affect its normal
operations or impair its financial condition or prospects.
4.1.7. Financial Statements. The Company has furnished to the Bank a
consolidated balance sheet as at December 31, 1994 and related consolidated
statements of income (loss), changes in stockholders' equity and cash flows of
the Company and its Subsidiaries for the fiscal year then ended, certified by
Coopers & Lybrand, independent accountants. The balance sheet and statements
described above have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
specified and present fairly in all material respects the financial position of
the Company and its Subsidiaries as at the date thereof.
4.1.8. Changes. Since December 31, 1994, there has been no change in
the assets, liabilities, financial condition or business of the Company or any
Subsidiary, other than changes the effect of which has not been in any case, or
in the aggregate, materially adverse.
4.1.9. Business. The Company and each Subsidiary has good and
marketable title to its properties and assets, including such properties and
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assets as are reflected in the consolidated balance sheet referred to in Section
4.1.7 hereof (except such assets as have been disposed of in the ordinary course
of business subsequent to the date thereof) subject to no security interests,
except as is permitted by Section 6.2. The Company and each Subsidiary enjoys
peaceful and undisturbed possession under all leases of real or personal
property of which it is lessee, none of which contains any unusual or burdensome
provision which will materially adversely affect or impair the operation of the
Company or any Subsidiary, and all such leases are valid and subsisting and in
full force and effect. To the best of the Company's knowledge, the Company and
each Subsidiary owns or possesses the right to use all the franchises, rights
and licenses, necessary for the conduct of its business as now conducted and as
proposed to be conducted, without any known conflict with the rights of others.
4.1.10. Taxes. The Company and its Subsidiaries have filed all federal,
state and local tax returns which are required to be filed, except where the
time to file has been extended, and all taxes, assessments and other
governmental charges due from the Company and its Subsidiaries are not
delinquent. All deficiencies finally resulting from examinations of any such
returns by the respective taxing authorities have been discharged or provided
for. To the best of their knowledge, the Company and its Subsidiaries have
adequately provided for the payment of all federal, state and local taxes for
the years that have not been audited by the respective tax authorities.
4.1.11. Loan as Senior Indebtedness. The Indebtedness hereunder
evidenced by this Agreement will constitute "Senior Indebtedness" or "Senior
Debt" in any instrument evidencing Indebtedness which purports to be
Subordinated Indebtedness.
4.1.12. No Defaults. No event has occurred and is continuing and
no condition exists which constitutes or which after notice or lapse of time, or
both, would constitute an Event of Default.
4.1.13. Regulation U. The Company and each of its Subsidiaries is not
engaged in the business of owning or carrying margin stock (within the meaning
of Regulation U of the Board of Governors of the Federal Reserve System), and no
part of the proceeds of any Loan or Advance will be used to purchase or carry
any margin stock or to extend credit to others for the purpose of purchasing and
carrying any margin stock.
4.1.14. Pension Plans. The funding of any pension plan of the Company
and its Subsidiaries, or any of them, the benefits under which are guaranteed in
whole or in part by the Pension Benefit Guaranty Corporation, complies with the
minimum funding standards of Section 412 of the Internal Revenue Code of 1954,
as amended.
4.1.15. Investment Company; Public Utility Holding Company. Neither the
Company nor any Subsidiary is an "investment company" or a "company controlled"
35
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by an "investment company" or an "affiliate" of an "investment company" within
the meaning of the Investment Company Act of 1940, as amended. Neither the
Company nor any Subsidiary is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", as such terms are defined in the
Public Utility Holding Company Act of 1935, as amended.
4.1.16. Environmental Compliance. Except as set forth in Schedule
4.1.16 hereto,
(a) none of the Company, its Subsidiaries or any operator of
its Property is in violation, or to the Company's knowledge alleged
violation, of any Environmental Laws, which violation would have a
material adverse effect on the business, assets or financial condition
of any of the Borrowers or of the Company and its Subsidiaries taken as
a whole.
(b) none of the Company or its Subsidiaries has received
notice that it is a potential responsible party under any Environmental
Law under circumstances which will, under current or foreseeable
conditions, have a material adverse effect on the business, assets or
financial condition of any of the Borrowers or of the Company and its
Subsidiaries taken as a whole.
4.2. Representations and Warranties of Each Borrowing Subsidiary.
Each Borrowing Subsidiary shall be deemed by the execution and delivery of its
election to become a Borrower to have represented and warranted to the Banks as
of the date thereof as follows:
4.2.1. Organization, Good Standing, Authority etc. It (a) is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, (b) has all requisite corporate power
to own its property and conduct its business as now conducted and as currently
contemplated, and (c) to the best of its knowledge, is duly qualified to do
business and in good standing as a foreign corporation in each jurisdiction
where the nature of its property or business requires such qualification except
where the failure to so qualify will not have a materially adverse effect on it.
The execution, delivery and performance of the election to become a Borrower and
its Note, and the performance of its Note and the provisions of the Agreement
applicable to it are within the corporate authority of the Borrowing Subsidiary,
have been duly authorized by all necessary corporate proceedings, and do not and
will not contravene any provisions of its charter, other incorporation papers,
by-laws or any stock provision or any amendment thereof, or, to the best of its
knowledge, any provisions of law or any indenture, agreement, instrument or
undertaking binding upon it. The execution, delivery and performance of the
election to become a Borrower and its Note will result in valid and legally
36
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binding obligations of the Borrowing Subsidiary, enforceable against it in
accordance with the terms and provisions thereof and hereof, except as limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting generally the enforcement of creditor's rights.
4.2.2. Governmental Approvals. No approval or consent of, or filing
with, any governmental agency or authority is required to make valid and legally
binding the execution, delivery and performance of the election to become a
Borrower, its Note and this Agreement and consummation of the transactions
contemplated hereby.
4.2.3. Compliance with Other Instruments. The Borrowing Subsidiary is
not in material default under any provisions of its charter, other incorporation
papers, by-laws or stock provisions or any amendment thereof or of any indenture
or agreement or of any order, regulation, ruling or requirement of a court or
public body or authority by which it is bound.
4.2.4. Litigation. No action, suit, investigation or proceeding is
pending or known to be threatened against the Borrowing Subsidiary before any
court or administrative agency which, if adversely determined, would materially
impair the ability of the Borrower and its Subsidiaries to carry on their
consolidated business substantially as now conducted or would materially
adversely affect the consolidated financial condition of the Borrower and its
Subsidiaries.
4.2.5. No Adverse Contracts, etc. The Borrowing Subsidiary is not
subject to any provision of its charter, other incorporation papers, by-laws or
stock provisions or any amendment thereof or a party to or otherwise bound by
any indenture or agreement or bound by any order, regulation, ruling or
requirement of a court or public body or authority which will, under current or
foreseeable conditions, materially adversely affect its normal operations or
impair its financial condition or prospects.
4.2.6. Regulation U. The Borrowing Subsidiary is not engaged in the
business of owning or carrying margin stock (within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System), and no part of the
proceeds of any Loan or Advance will be used to purchase or carry any margin
stock or to extend credit to others for the purpose of purchasing and carrying
any margin stock.
4.2.7. Borrowing Subsidiary. It qualifies as a Borrowing Subsidiary
under the Agreement.
4.2.8. Investment Company; Public Utility Holding Company. The
Borrowing Subsidiary is not an "investment company" or a "company controlled" by
an "investment company" or an "affiliate" of an "investment company" within the
meaning of the Investment Company Act of 1940, as amended. The Borrowing
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Subsidiary is not a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
SECTION 5. CERTAIN AFFIRMATIVE COVENANTS.
The Company covenants and agrees that, so long as any amounts are owing
with respect to this Agreement or the Notes or the Banks are committed to extend
credit under this Agreement:
5.1. Conduct of Business. The Company and each of its Subsidiaries
will:
(a) duly observe and conform to all valid requirements of all
governmental authorities in any way relating to it or the conduct of
its business where failure to do so would materially affect the Company
and its Subsidiaries on a Consolidated basis,
(b) perform or comply with the terms and conditions of
each material contract, agreement or obligation to which it is a party,
(c) maintain and insure its properties so that its
business may be properly conducted at all times and so that it
will be adequately protected against loss, and
(d) keep true records and books of account.
5.2. Payment of Taxes. The Company and each of its Subsidiaries will
promptly pay and discharge all lawful taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profit or upon any
property, real, personal or mixed, belonging to it; provided, however, that
neither the Company nor any of its Subsidiaries shall be required to pay any
such tax, assessment, charge or levy if the same shall not at the time be due
and payable or can be paid thereafter without penalty or if the validity thereof
shall currently be contested in good faith by appropriate proceedings and if the
Company or its Subsidiaries shall have made adequate provision on their
respective books for the payment of such tax, assessment, charge or levy.
5.3. Notification of Significant Litigation, Default, etc. The Company
will promptly notify the Agent of the commencement of any material litigation or
administrative proceeding initiated against it or any of its Subsidiaries and of
the occurrence of any Default or Event of Default hereunder.
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5.4. Financial Statements, Certificates and Other Information. The
Company will furnish to each of the Banks:
(a) as soon as available but in any event within forty-five
days after the end of the first three quarters in each fiscal year,
unaudited consolidated financial statements of the Company and its
Subsidiaries, prepared in accordance with generally accepted accounting
principles consistent with those used in the preparation of the
financial statements for the preceding quarter, except in instances
when changes to such principles are required by authoritative
rule-making bodies or adopted as preferable methods of accounting and
reported as such by the Company's independent accountants, in each case
certified by the chief financial officer, Controller or Treasurer of
the Company, subject, however, to audit and year-end adjustments;
(b) as soon as available but in any event within ninety days
after the end of each fiscal year, consolidated financial statements of
the Company and its Subsidiaries, all prepared in accordance with
generally accepted accounting principles consistent with those used in
the preparation of the financial statements for the preceding fiscal
year, except in instances when changes to such principles are required
by authoritative rule-making bodies or adopted as preferable methods of
accounting and reported as such by the Company's independent
accountants, in each case certified by Coopers & Lybrand or other
independent accountants of nationally recognized standing selected by
the Company and acceptable to the Banks;
(c) accompanying each set of financial statements furnished
pursuant to clauses (a) and (b) above, a certificate signed by the
President, Chief Financial Officer, or Treasurer of the Company setting
forth calculations showing compliance or noncompliance, at the end of
the quarter or year being reported on, with Sections 5.7 and 6.1 hereof
and stating that a review of the activities of the Company during the
period covered by such financial statements has been made under the
immediate supervision of the signer with a view to determining whether,
during such period, the Company and its Subsidiaries have kept,
observed, performed and fulfilled each and every covenant and condition
of this Agreement and either (i) stating that, to the best of his
knowledge and belief, there neither exists on the date of such
certificate, nor existed during such period, any Default or Event of
Default, or (ii) if any such Default or Event of Default existed or
exists, specifying the nature thereof, the period of existence thereof
and what action the Company has taken, is taking or proposes to take
with respect thereto;
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(d) upon request of any Bank and promptly upon receipt by the
Company, copies of all material management letters or other reports
submitted to it by independent accountants in connection with any
annual or interim audit of the books of the Company made by such
accountants;
(e) contemporaneously with the mailing, filing, submission or
other distribution thereof, copies of all financial statements,
reports, notices, proxy statements and other documents sent by the
Company to its stockholders or filed with or submitted by the Company
to the Securities and Exchange Commission;
(f) within forty-five days after the beginning of each
calendar quarter, a borrowing base certificate, including a summary of
agings of accounts receivable and categories of inventory, in a form
satisfactory to the Agent and signed by an authorized officer of the
Company, containing all information as shall be necessary to enable the
Agent to determine the Borrowing Base as of such date; and
(g) with reasonable promptness, such other information
relating to the business or financial affairs of the Company and its
Subsidiaries as any of the Banks, through the Agent, may reasonably
request.
The Company authorizes the Agent and the Banks to disclose any
information obtained pursuant to this Agreement to all appropriate governmental
or regulatory authorities where required by law.
5.5. Inspection of Properties and Books. The Banks, through the Agent
or any of its designated representatives, shall have the right, upon prior
notice to the Company, to visit and inspect any of the properties of the Company
and its Subsidiaries, to examine the books of account of the Company and its
Subsidiaries, to make all such examinations and inquiries as are necessary to
determine the Borrowing Base and to discuss the affairs, finances and accounts
of the Company and its Subsidiaries with, and to be advised as to the same by,
their officers, all at such reasonable times and intervals as the Banks may
desire.
5.6. Employee Retirement Income Security Act of 1974. The Company will
promptly notify the Agent of any "reportable event" as defined in Section 4043
of the Employee Retirement Income Security Act of 1974, as amended, or any
notice of termination of any plan under Sections 4041 or 4042 of such Act.
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5.7. Financial Covenants. The Company and its Subsidiaries will comply
with the following covenants:
(a) Net Working Capital; Current Ratio. The Company and its
Subsidiaries will at all times maintain (i) Net Working Capital of at
least $50,000,000, and (ii) a Current Ratio of at least 200%.
(b) Maintenance of Consolidated Tangible Net Worth. The Company
and its Subsidiaries will at all times maintain Consolidated Tangible
Net Worth of at least the Base Amount plus (i) all amounts hereafter
added to the capital accounts of the Company and its Subsidiaries,
whether by way of contribution, purchase of equity or otherwise, plus
(ii) exclusive of any amounts included under clause (i), 50% of
consolidated net income of the Company and its Subsidiaries earned in
each fiscal year commencing on or after December 31, 1990, adjusted
quarterly. (For purposes of the adjustment made pursuant to clause (ii)
above, consolidated net losses in any fiscal quarter are to be
disregarded.) The Base Amount shall, at all times when the aggregate
principal amount outstanding under this Agreement is equal to an amount
within a range specified below, be equal to the Base Amount set forth
opposite such range:
Range of Amounts Outstanding Base Amount
$0 - $19,999,999 $251,000,000
$20,000,000 - $39,999,999 $261,000,000
$40,000,000 - $59,999,999 $266,000,000
$60,000,000 and above $274,000,000
(c) Leverage Ratio. The Company shall not permit
the Leverage Ratio to exceed 100% at any time after the date hereof.
5.8. Pension Plans. The Company will, and will cause each Subsidiary
to, keep its private pension plans in full force and effect, make contributions
to each of such plans in a timely and sufficient amount, and acquire, promptly
upon its availability, and maintain contingent liability coverage insurance
under Section 4023 of the Employee Retirement Income Security Act of 1974, as
amended, obtained either from the Pension Benefit Guaranty Corporation or from
authorized private insurers.
5.9. Further Assurances. The Company will execute and deliver any and
all such instruments and documents, and take all such other action, as may
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reasonably be required by the Agent or any Bank in order to perfect, insure and
continue the rights and interests of the Banks under this Agreement.
5.10. Borrowing Subsidiaries. The Company (a) will permit only a
wholly-owned Subsidiary, which will be qualified as a Borrowing Subsidiary as
defined in this Agreement, to execute and deliver an election to become a
Borrower and to request Loans from the Banks, and (b) will maintain a 100%
ownership interest (except for directors' qualifying shares), whether directly
or indirectly, free and clear of all liens and encumbrances, in each Borrowing
Subsidiary.
5.11. Environmental Matters. The Company and its Subsidiaries will
comply with the following covenants:
(a) Notice. The Company covenants and agrees promptly to
provide the Agent and each of the Banks with written notice: (i) upon
the Company's obtaining knowledge of any violation of any Environmental
Law regarding the Property or the Company's operations which violation
could have a material adverse effect on the business, assets or
financial condition of any of the Borrowers or of the Company and its
Subsidiaries taken as a whole; (ii) upon the Company's obtaining
knowledge of any potential or known Release, or threat of Release, of
any Hazardous Substances at, from, or into the Property which it
reports in writing or is reportable by it in writing to any
governmental authority which Release could have a material adverse
effect on the business, assets or financial condition of any of the
Borrowers or of the Company and its Subsidiaries taken as a whole;
(iii) upon the Company's receipt of any notice of violation of any
Environmental Laws or of any Release or threatened Release of Hazardous
Substances, including a notice or claim of liability or potential
responsibility from any third party (including without limitation any
federal, state or local governmental officials) and including notice of
any formal inquiry, proceeding, demand, investigation or other action
with regard to (A) the Company's or any person's operation of the
Property, (B) contamination on, from or into the Property, or (C)
investigation or remediation of offsite locations at which the Company
or its predecessor are alleged to have directly or indirectly disposed
of Hazardous Substances, under circumstances which will, under current
or foreseeable conditions, have a material adverse effect on the
business, assets or financial condition of any of the Borrowers or of
the Company and its Subsidiaries taken as a whole; or (D) upon the
Company's obtaining knowledge that any expense or loss has been
incurred by such governmental authority in connection with the
assessment, containment, removal or remediation of any Hazardous
Substances with respect to which the Company may be liable or for which
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a lien may be imposed on the Property under circumstances which will,
under current or foreseeable conditions, have a material adverse effect
on the business, assets or financial condition of any of the Borrowers
or of the Company and its Subsidiaries taken as a whole.
(b) Response Actions. The Company covenants and agrees that if
any Release or disposal of Hazardous Substances shall occur or shall
have occurred on the Property, Company will cause the prompt
containment and removal of such Hazardous Substances and remediation of
the Property as necessary to comply with all Environmental Laws.
(c) Indemnification. The Company covenants and agrees that it
will indemnify and hold the Agent and each of the Banks harmless from
and against any and all claims which allege that the actions or
transactions of the Agent and the Banks undertaken in conformity with
this Agreement create any liability under the Environmental Laws,
provided that the Agent or the Bank, as the case may be, furnish prompt
notice of the claim and permits the Company to conduct the defense
against, and approve any settlement for, such claim. The Agent or any
Bank will be entitled to participate in such defense with counsel of
its own choosing, at its own expense.
SECTION 6. CERTAIN NEGATIVE COVENANTS.
The Company covenants and agrees that, so long as the Notes are
outstanding or the Banks are committed to extend credit under this Agreement,
neither it nor any Subsidiary will:
6.1. Indebtedness. Create, incur, assume, guarantee, agree to
purchase, repurchase or provide funds in respect of, or otherwise become or be
or remain liable with respect to, any Indebtedness of any type whatsoever owed
to any person, except:
(a) Indebtedness incurred pursuant to the Notes and any other
Indebtedness incurred pursuant to the terms of this Agreement;
(b) existing Indebtedness, as set forth on Schedule 6.1
hereto, including any extension, renewal or modification thereof which
does not increase the principal amount of such Indebtedness
outstanding;
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(c) in addition to Indebtedness permitted by paragraphs (a)
and (b) of this Section 6.1, other Indebtedness of not more than
$30,000,000 in the aggregate at any one time outstanding; and
(d) Indebtedness of the Company to any Subsidiary and
Indebtedness of any Subsidiary to the Company or another Subsidiary.
6.2. Liens. Create, incur, assume or permit to exist any mortgage,
lien, charge, security interest or other encumbrance on any properties or assets
owned by it, except:
(a) liens in respect of taxes, fees, assessments and other
governmental charges to the extent that payment of the same may be
postponed or is not required in accordance with the provisions of
Section 5.2 hereof;
(b) landlord's liens in respect of rent not in default or
liens in respect of pledges or deposits under workmen's compensation,
unemployment insurance, social security laws or similar legislation or
in connection with appeal and similar bonds incidental to litigation,
mechanics', laborers' and materialmen's and similar liens, if the
obligations secured by such liens are not then delinquent, and liens
securing statutory obligations incidental to the conduct of the
business of the Company and its Subsidiaries and which do not in the
aggregate materially detract from the value of the property of the
Company and its Subsidiaries or materially impair the use thereof in
the operation of their business;
(c) judgment liens which shall not have been in existence for
a period longer than sixty days after the creation thereof, or if a
stay of execution shall have been obtained, for a period longer than
sixty days after the expiration of such stay; and
(d) in addition to the foregoing, liens voluntarily created by
the Company or its Subsidiaries from time to time on assets having an
aggregate book value not exceeding 10% of Consolidated Tangible Net
Worth; provided, however, that no such lien shall attach to accounts
receivable or inventory of the Company or any of its Subsidiaries.
6.3. Investments. Make or permit to exist, any Investments, directly
or indirectly, other than:
(a) demand deposits maintained in accounts with United
States commercial banks;
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(b) Money Market Instruments;
(c) Investments in Subsidiaries;
(d) Investments in persons which are not Subsidiaries the cost
of which does not at any time exceed in the aggregate for all such
Investments 10% of Consolidated Tangible Net Worth; and
(e) other Investments not exceeding $10,000,000 in the
aggregate.
6.4. Merger and Sale of Assets. Consolidate or merge with or into
any other corporation or sell, lease (as lessor), transfer or otherwise
dispose of any substantial portion of its assets other than in the ordinary
course of business; provided that
(a) a Subsidiary may be merged or consolidated with the Company
if the Company shall be the surviving corporation or with any one or
more other Subsidiaries if the successor formed by or resulting from
such merger or consolidation shall be a Subsidiary;
(b) any Subsidiary may sell, lease (as lessor), transfer or
otherwise dispose of its assets to the Company or another Subsidiary
if, after giving effect to such merger, consolidation, sale, lease,
transfer or other disposition, no Default or Event of Default exists;
(c) the Company or any Subsidiary may consolidate or merge
with any other corporation if (i) the Company or the Subsidiary is the
survivor in such transaction and (ii) after giving effect to such
transaction no Default or Event of Default exists; and
(d) the Company or any of its Subsidiaries may sell or lease
(as lessor) assets other than in the ordinary course of business,
provided that the aggregate book value of such assets at any time sold
or leased (taken at the time of sale or lease) shall not exceed 10% of
the aggregate book value of all assets other than Discounted Trade
Receivables, as shown on the December 31, 1990, consolidated balance
sheet of the Company and its Subsidiaries.
6.5. Lines of Business. Engage in any business other than those in
which they are now engaged or any business directly related thereto.
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6.6. Limitation on Stock Repurchases. Make any payments on account of
the purchase or other acquisition, redemption or retirement of any shares in the
Company's capital of any class or any warrants or options to purchase any such
shares; excluding, however, from the operation of the foregoing provisions of
this Section 6.6 payments for the repurchase of the capital stock of the Company
which in the aggregate for all such payments made after December 31, 1994, do
not exceed $60,000,000.
6.7. Leasebacks. Directly or indirectly first become liable after the
date of this Agreement, as lessee or guarantor or other surety, with respect to
any lease of real or personal property, whether now owned or hereafter acquired,
(a) which is to be sold or transferred by the Company or a Subsidiary to any
Person, or (b) which the Company or a Subsidiary intends to use for
substantially the same purpose as any other property which has been or is to be
sold or transferred by the Company or a Subsidiary to any Person in connection
with such lease (either of the foregoing transactions being hereinafter referred
to as a "Leaseback"), except Leasebacks involving property, the aggregate value
of which for all Leasebacks after December 31, 1990 is not in excess of 10% of
Consolidated Tangible Net Worth on the date of any such Leaseback. For purposes
of this section the value of property shall be the greater of the fair market
value of the property or the book value of the property prior to the transfer as
determined in accordance with generally accepted accounting principles.
SECTION 7. GUARANTY.
7.1. Guaranty. For value received and hereby acknowledged and as an
inducement to the Banks to make Loans or Advances to the Borrowing Subsidiaries,
the Company hereby unconditionally and irrevocably guarantees: (i) the full
punctual payment when due, whether at stated maturity, by acceleration or
otherwise, of all obligations of each Borrowing Subsidiary now or hereafter
existing hereunder and under its Notes whether for principal, interest, fees,
expenses or otherwise, and (ii) the strict performance and observance by each
such Borrowing Subsidiary of all agreements, warranties and covenants in the
Notes and in the Agreement applicable to each such Borrowing Subsidiary (such
obligations collectively being the "Guaranteed Obligations").
7.2. Guaranty Absolute. The Company guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms hereof,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Banks with respect
thereto. The liability of the Company under this guaranty with regard to the
Guaranteed Obligations of each Borrowing Subsidiary shall be absolute and
unconditional irrespective of:
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(i) any lack of validity or enforceability or any illegality
of such Borrowing Subsidiary's election to become a Borrower, its
Notes, the Agreement and any amendment thereof (with regard to such
Guaranteed Obligations), or any other obligation, agreement or
instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations of such
Borrowing Subsidiary or any other amendment or waiver of or any consent
to departure from the Agreement (with regard to such Guaranteed
Obligations);
(iii) any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations of such Borrowing Subsidiary;
(iv) any change in ownership of such Borrowing Subsidiary;
(v) any acceptance of any partial payment(s) from such
Borrowing Subsidiary; or
(vi) any other circumstance other than payment which might
otherwise constitute a defense available to, or a discharge of, such
Borrowing Subsidiary in respect of its Guaranteed Obligations provided
that the Company may assert defenses arising from any Bank's breach of
the Agreement to the same extent that a Borrowing Subsidiary would be
able to do so.
This guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any Guaranteed Obligation is
rescinded or must otherwise be returned by the Banks upon the insolvency,
bankruptcy or reorganization of any Borrowing Subsidiary or otherwise, all as
though such payment had not been made.
7.3. Effectiveness, Enforcement. The guaranty herein of the Company
shall be effective and shall be deemed to be made with respect to each Advance
made to a Borrowing Subsidiary as of the time it is made. No invalidity,
irregularity or unenforceability by reason of any bankruptcy or similar law, or
any law or order of any government or agency thereof purporting to reduce, amend
or otherwise affect any liability of a Borrowing Subsidiary, and no defect in or
insufficiency or want of powers of any Borrowing Subsidiary or irregular or
improperly recorded exercise thereof, shall impair, affect, be a defense to or
claim against such guaranty. This guaranty is a continuing guaranty and shall
(i) survive any termination of the Agreement and (ii) remain in full force and
effect until payment in full and performance of all Guaranteed Obligations and
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all other amounts payable under this guaranty. This guaranty is made for the
benefit of the Banks and their respective successors and assigns, and may be
enforced from time to time as often as occasion therefor may arise and without
requirement on the part of any Bank first to exercise any rights against any
Borrowing Subsidiary or to exhaust any remedies available to it against any
Borrowing Subsidiary or to resort to any other source or means of obtaining
payment of any of the Guaranteed Obligations or to elect any other remedy. Upon
any default by any Borrowing Subsidiary in the full and punctual performance of
any of the Guaranteed Obligations, the liabilities and obligations of the
Company hereunder shall, at the option of the Agent, become forthwith due and
payable.
7.4. Waiver. The Company hereby waives promptness, diligence, protest,
notice of protest, all suretyship defenses, notice of acceptance and any other
notice with respect to any of the Guaranteed Obligations and this guaranty and
any requirement that the Banks protect, secure, perfect to ensure any security
interest or lien or any property subject thereto or exhaust any right or take
any action against any Borrowing Subsidiary or any other Person or any
collateral. The Company also irrevocably waives, to the fullest extent permitted
by law, all defenses which at any time may be available to it in respect of the
Guaranteed Obligations by virtue of any statute of limitations, valuation, stay,
moratorium law or other similar law now or hereafter in effect.
7.5. Subrogation; Subordination.
(a) Until the final payment and performance in full of all of
the Obligations, the Company shall not exercise and hereby waives any
rights against a Borrowing Subsidiary arising as a result of payment by
the Company hereunder by way of subrogation, reimbursement,
restitution, contribution or otherwise, and will not prove any claim in
competition with the Agent or any Bank or any other creditor of a
Borrowing Subsidiary whether now or hereafter existing or arising in
respect of any payment hereunder in any bankruptcy, insolvency or
reorganization case or proceeding of any nature; the Company will not
claim any setoff, recoupment or counterclaim against a Borrowing
Subsidiary in respect of any liability of the Borrowing Subsidiary to
the Company; and the Company waives any benefit of and any right to
participate in any collateral security which may be held by the Agent
or any Bank.
(b) The payment of any amounts due with respect to any
indebtedness of a Borrowing Subsidiary for money borrowed or credit
received now or hereafter owed to the Company is hereby subordinated to
the prior payment in full of all of the Guaranteed Obligations. The
Company agrees that, after the occurrence of any default in the payment
or performance of any of the Guaranteed Obligations, the Company will
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not demand, sue or otherwise attempt to collect any such indebtedness
of a Borrowing Subsidiary to the Company until all of the Guaranteed
Obligations shall have been paid in full. If, notwithstanding the
foregoing sentence, the Company shall collect, enforce or receive any
amounts in respect of such indebtedness while any Guaranteed
Obligations are still outstanding, such amounts shall be collected,
enforced and received by the Company as trustee for the Banks and the
Agent and be paid over to the Agent, for the benefit of the Banks and
the Agent on account of the Guaranteed Obligations without affecting in
any manner the liability of the Company under the other provisions of
this Agreement.
(c) The provisions of this Section 7.5 shall be supplemental
to and not in derogation of any rights and remedies of the Banks and
the Agent under any separate subordination agreement which the Agent
may at any time and from time to time enter into with the Company for
the benefit of the Banks and the Agent.
SECTION 8. EVENTS OF DEFAULT; ACCELERATION.
If any of the following events ("Events of Default" or if either or
both notice or lapse of time is required, then, prior to such notice and/or
lapse of time, "Defaults") shall occur:
(a) if the Company or any Borrowing Subsidiary shall default
in any payment of any principal amount outstanding hereunder or under
the Notes when the same shall become due and payable, whether at
maturity or at any date fixed for payment or prepayment or by
declaration or otherwise other than due to a failure of a Bank or the
Agent to charge an account of the Company or such Borrowing Subsidiary
having a sufficient credit balance; or
(b) if the Company or any Borrowing Subsidiary shall fail to
pay any interest with respect to principal outstanding hereunder or
under the Notes or any commitment fee within two (2) Business Days
after written notice by the Agent thereof shall have been given to the
Company whether at maturity or at any date fixed for payment or
prepayment or by declaration or otherwise; or
(c) if the Company or any Borrowing Subsidiary shall default
in any material respect in the performance of or compliance with any
term contained herein and such default shall not have been remedied
within 15 days after written notice thereof shall have been given to
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the Company or such Borrowing Subsidiary by the Agent; or
(d) if any representation or warranty made in writing by or on
behalf of the Company or any Borrowing Subsidiary herein or in
connection with any of the transactions contemplated hereby shall prove
to have been false or incorrect in any material respect on the date as
of which made or deemed made; or
(e) if the Company or any Subsidiary shall fail to pay at
maturity, or within any applicable period of grace, any obligation for
money borrowed or credit advanced in an amount in excess of $250,000 in
any one case or in aggregate for all obligations in default at such
time, or shall have received notice of the existence of a default
resulting from its failure to observe or perform any term, covenant or
agreement contained in any agreement by which it is bound, evidencing
or securing such money borrowed or credit advanced, and such default
shall continue without waiver thereof beyond any period of grace
provided with respect thereto; or
(f) if any Borrower, or any Subsidiary owning assets having a
fair market value of $250,000 or more, shall make a general assignment
for the benefit of creditors or shall petition or apply for the
appointment of a liquidator or receiver of any Borrower or any such
Subsidiary or of any substantial part of the assets of any Borrower or
any such Subsidiary or shall commence any proceeding relating to any
Borrower under any bankruptcy, reorganization, insolvency, readjustment
of debt, dissolution or liquidation law or similar law of any
jurisdiction, now or hereafter in effect; or
(g) if any such petition or application shall be filed or any
such proceeding shall be commenced against any Borrower, or any
Subsidiary owning assets having a fair market value of $250,000 or
more, and such Borrower or such Subsidiary shall indicate its approval
thereof, consent thereto or acquiescence therein or an order shall be
entered appointing any liquidator or receiver, or adjudicating any
Borrower or any such Subsidiary a bankrupt or insolvent, or approving a
petition in any such proceeding, and such order shall remain in effect
for more than thirty days, whether or not consecutive; or
(h) if any order shall be entered in any proceeding by or
against any Borrower or any Subsidiary decreeing or permitting the
dissolution or split-up of any Borrower or such Subsidiary or the
winding up of its affairs and such order shall remain in effect for
more than thirty days, whether or not consecutive; or
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(i) if there shall remain in force, undischarged, unsatisfied
and unstayed, for more than thirty days after the date on which payment
is due thereon, whether or not consecutive, any final judgment against
any Borrower or any Subsidiary which, with other outstanding final
judgments, undischarged, against the Company and its Subsidiaries
exceeds in the aggregate $250,000 after taking into account any
insurance coverage;
then and in any such event the Agent may at any time, and upon written request
of the Majority Banks, shall, by written notice to the Borrower, and if the
Borrower is a Borrowing Subsidiary, the Company, declare: (i) the obligation of
each Bank to make Advances or Term Loans to the Borrowers to be terminated,
whereupon the same shall terminate, and/or (ii) the right of any Subsidiary to
become a Borrowing Subsidiary and the obligation of each Bank to make Advances
or Term Loans to such Subsidiary to be terminated, whereupon the same shall
forthwith terminate, and/or (iii) the principal amount of the Loan Accounts, in
the case of the Company and the Notes, in the case of all other Borrowers, all
interest thereon and all other amounts payable under this Agreement and the
Notes to be forthwith due and payable, whereupon the same shall become and be
forthwith due and payable without presentment, demand, protest or notice, all of
which are hereby expressly waived by each of the Borrowers. If any of the events
described in clauses (f), (g) or (h) above shall occur, and if such event
involves the Company (rather than a Subsidiary), the actions described in
clauses (i), (ii) and (iii) above shall occur automatically without requests by
the Banks, notice to the Company, or declaration by the Agent.
SECTION 9. SET-OFF.
Any deposits or other sums at any time credited by or due from any Bank
to the Company or any Subsidiary and any securities or other property of the
Company or any Subsidiary in any Bank's possession may at all times be held and
treated as collateral security for the payment of the principal and interest and
any other amounts due hereunder or under the Notes, and any and all other
liabilities, direct or indirect, absolute or contingent, due or to become due,
now existing or hereafter arising, of any Borrower to the Banks. Regardless of
the adequacy of any collateral, any deposits (other than accounts used solely
for payroll or employee benefit plans) or other sums credited by or due from any
of the Banks to the Company or any Subsidiary may be appropriately applied to or
set-off against any principal, interest and any other amounts due hereunder or
under the Notes, and such other liabilities by the Banks at any time without
notice to any Borrower or compliance with any other condition precedent now or
hereafter imposed by statute, rule of law or otherwise (all of which are hereby
expressly waived by each Borrower). Each Bank agrees with the other Banks that
(i) if an amount to be set off is to be applied to indebtedness of a Borrower
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hereunder to a Bank, other than the indebtedness evidenced by this Agreement or
the Notes, such amount shall be applied ratably to such other indebtedness and
to the indebtedness evidenced by this Agreement, and (ii) if a Bank shall
receive from any Borrower or from the Company with respect to such Borrower,
whether by voluntary payment, exercise of the right of setoff, counterclaim,
cross action, enforcement of the claim evidenced by this Agreement and/or the
Notes by proceedings against such Borrower or enforcement of any claim against
the Company in respect of its guaranty, in either case whether at law or in
equity or by proof thereof in bankruptcy, reorganization, liquidation,
receivership or similar proceedings, or otherwise, and shall retain and apply to
the payment of the indebtedness to it hereunder and/or under the Notes of such
Borrower, any amount in excess of such Bank's ratable portion of the payments
received by the Banks, such Bank will promptly make such disposition and
arrangements with the other Banks with respect to such excess, either by way of
distribution, pro tanto assignment of claims, subrogation or otherwise as shall
result in each Bank receiving in respect of the indebtedness to it hereunder
and/or under the Notes of such Borrower such Bank's proportionate payment;
provided, however, that if all or any part of such excess payment is thereafter
recovered from such Bank, such disposition and arrangements shall be rescinded
and the amount restored to the extent of such recovery, but without interest.
SECTION 10. THE AGENT.
(a) The Agent is authorized to take such action on behalf of each of
the Banks and to exercise all such powers as are hereunder and in related
documents delegated to the Agent, together with such powers as are reasonably
incidental thereto.
(b) The Agent may exercise its powers and execute its duties by or
through employees or agents and shall be entitled to take, and to rely on,
advice of counsel concerning all matters pertaining to its rights and duties
under this Agreement and the Notes. The Agent may utilize the services of such
persons as the Agent in its sole discretion may reasonably determine, and all
reasonable fees and expenses of any such persons (other than salaries of
employees of the Agent) shall be paid by the Company.
(c) Neither the Agent nor any of its shareholders, directors, officers
or employees nor any other person assisting them in their duties nor any agent
or employee thereof, shall be liable to the Banks for any waiver, consent or
approval given or any action taken, or omitted to be taken, in good faith by it
or them hereunder or under the Notes, or in connection herewith or therewith or
be responsible to the Banks for the consequences of any oversight or error of
judgment whatsoever, except that the Agent or such other person, as the case may
be, may be liable for losses due to its willful misconduct or gross negligence.
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(d) The Agent shall not be responsible for the execution or validity or
enforceability of this Agreement, the Notes, or any instrument at any time
constituting, or intended to constitute, collateral security for this Agreement
or the Notes, or for the value of any such collateral security or for the
validity, enforceability or collectibility of any such amounts owing with
respect to this Agreement or the Notes, or for any recitals or statements,
warranties or representations herein or made in any certificate or instrument
hereafter furnished to it by or on behalf of any of the Borrowers or be bound to
ascertain or inquire as to the performance or observance of any of the terms,
conditions, covenants or agreements herein or in any instrument at any time
constituting, or intended to constitute, collateral security for this Agreement
or the Notes. The Agent shall not be bound to ascertain whether any notice,
consent, waiver or request delivered to it by any of the Borrowers or any holder
of any of the Notes shall have been duly authorized or is true, accurate and
complete. The Agent has not made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to the Banks
with respect to the creditworthiness or financial conditions of the Company or
any of its Subsidiaries, and each Bank represents and warrants to the Agent that
it has made its own independent evaluation of the creditworthiness of the
Company and its Subsidiaries and has not relied upon the Agent or any material
or information furnished by the Agent in making such evaluation.
(e) If in the opinion of the Agent the distribution of any amount
received by it in such capacity hereunder or under the Notes might involve it in
liability, it may refrain from making such distribution until its right to make
such distribution shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction shall adjudge that any amount
received and distributed by the Agent is to be repaid, each person to whom any
such distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay over the
same in such manner and to such persons as shall be determined by such court.
With respect to obligations of any of the Borrowers hereunder, a payment to the
Agent shall be deemed to be a payment to the Banks.
(f) The Agent may deem and treat the payee of any Note as the absolute
owner thereof for all purposes hereof until it shall have been furnished in
writing with a different name by such payee or by a subsequent holder.
(g) In its individual capacity, The First National Bank of Boston shall
have the same obligations and the same rights, powers and privileges in respect
to its Commitment and the Loans made by it hereunder, and as the holder of any
of the Notes, as it would have were it not also the Agent.
(h) The Company agrees to reimburse the Agent from time to time on
demand for its reasonable out-of-pocket expenses (including reasonable fees and
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expenses of counsel) incurred in connection with the administration of this
Agreement.
(i) The Agent may resign at any time upon ten (10) days' prior written
notice to the Banks and the Company. In such event, a successor Agent shall be
designated by the Banks, provided that the Company shall have the right to
approve such successor.
SECTION 11. MISCELLANEOUS.
11.1. Expenses. Whether or not the transactions contemplated hereby
shall be consummated, the Company will on demand (a) pay any taxes or filing
fees in connection with the transactions contemplated by this Agreement and save
the Banks harmless from and against any and all liabilities resulting from any
delay in paying or omission to pay any such fee or tax, (b) pay the reasonable
fees, expenses and disbursements of Counsel to the Agent incurred in connection
with the negotiation, preparation and completion of this Agreement and the
transactions and other documents contemplated by this Agreement, or any
subsequent waivers, consents or amendments in connection therewith, (c) pay the
reasonable costs and expenses of the Agent's examinations conducted in
accordance with Section 5.5 hereof, and (d) pay all reasonable out-of-pocket
expenses (including, without limitation, reasonable attorney's fees and costs,
costs of consultants, accountants, investment bankers and other experts)
incurred by the Banks in connection with the enforcement of this Agreement. The
Company's obligation to pay any amount pursuant to this Section 11.1 shall
survive payment or satisfaction of all other amounts owing under this Agreement.
11.2. Notices, etc. All notices, requests and other communications
pursuant to this Agreement shall be in writing and shall be mailed by
first-class mail, postage prepaid, or sent by telegraph confirmed by letter,
addressed as follows or to such other address as the party shall have furnished
to the communicating party in writing:
(a) If to the Company, at 321 Harrison Avenue, Boston,
Massachusetts 02118, marked Attention: Stuart M. Osattin, Treasurer.
(b) If to a Borrowing Subsidiary at its address as
set forth in its election to become a Borrower, with a copy delivered
to the Company.
(c) If to The First National Bank of Boston, as a Bank or
Agent, at its head office at 100 Federal Street, Boston, Massachusetts
02110, marked Attention: Daniel G. Head, Jr., Vice President, with a
copy to David J. Murphy, Esq., Bingham, Dana & Gould, 150 Federal
Street, Boston, Massachusetts 02110.
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(d) If to Bank of America National Trust and Savings
Association at its office at 555 California Street, Department 3697
, 41st floor, San Francisco, California 94101, marked Attention:
Douglas Watson, Assistant Vice President and Peter Tomei, Managing
Director;
(e) if to Fleet Bank of Massachusetts, N.A. at 75
State Street, Boston, Massachusetts 02109, Attention: Catherine M.
Bruton, Vice President; or
(f) if to State Street Bank and Trust Company, at
Large Corporations, 225 Franklin Street, M-2, Boston,
Massachusetts 02110, Attention: Lise Anne Boutiette, Vice President.
Any notice, request or communication so addressed and mailed by
registered or certified mail shall be deemed to have been given when mailed.
Any notice of borrowing under Section 2.6(a) or notices under Section
2.7 or 2.8(a) hereof shall be signed on behalf of a Borrower by one of its duly
authorized officers and shall not be revocable by such Borrower and shall
obligate such Borrower to borrow a requested Advance or Term Loan for, or to
convert an Advance to, a currency, Borrowing Day, Interest Period or interest
rate as may be so specified. Any election made by a Borrower pursuant to
Sections 2.3 or 2.10(b) shall be binding upon such Borrower and irrevocable.
Notice of any prepayment having been given as required and all of the other
conditions to such prepayment having been satisfied by such Borrower in
compliance with the provisions of Sections 2.3 or 2.10(b), that amount of the
principal of any Advance or Term Loan which shall have been designated for
prepayment in such notice shall, on the date specified in such notice, become
absolutely due and payable by such Borrower.
11.3. Reliance, etc. All covenants, agreements, representations and
warranties made herein, in certificates delivered pursuant hereto or otherwise
in writing in connection with the transactions evidenced hereby shall be deemed
to have been material and relied upon by the Banks, notwithstanding any
investigation made by the Banks or on the Banks' behalf and shall survive the
execution of this Agreement and the making of each Advance or Term Loan
hereunder and shall continue in full force and effect until all of the
obligations of the Company and each Borrowing Subsidiary hereunder have been
paid and satisfied in full and all commitments of the Banks to extend credit
hereunder have terminated.
11.4. Captions. The captions in this Agreement are for convenience
of reference only and shall not define or limit the provisions hereof.
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11.5. Consents, Amendments, Waivers, etc. Except as otherwise expressly
set forth in any particular provision of this Agreement, any consent or approval
required or permitted by this Agreement to be given by the Banks may be given,
and any term of this Agreement or of any other instrument related hereto or
mentioned herein may be amended, and the performance or observance by any
Borrowers of any term of this Agreement may be waived (either generally or in a
particular instance and either retroactively or prospectively) with, but only
with, the written consent of the Borrowers and the Majority Banks, provided,
however, that:
(a) Without the written consent of such Banks as hold 100% of
the aggregate outstanding principal amount of the Loan Accounts and all
Notes, or if no principal is outstanding, of the Total Commitment,
(i) no reduction in the principal amount of, interest
rate on, Commitment Fees relating to the Advances or Term
Loans or the Facility Fee shall be made; and
(ii) no extension or postponement of the stated time
of payment of the principal amount of, interest on, Commitment
Fees relating to, the Advances or Term Loans or the Facility
Fee shall be made; and
(iii) no increase in the amount, or extension
of the term, of the Total Commitment beyond those provided
for hereunder shall be made;
(iv) no modification of, or amendment to, or waiver
of compliance with, the provisions of Sections 8(a), (b), (f),
(g) or (h) or 11.5 hereof shall be made.
No modification or waiver of any provision of this Agreement, and no consent to
departure by any Borrower therefrom, shall in any event be effective unless the
same shall be in writing and signed by the required percentage of the Banks, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No notice or demand on any Borrower in any case
shall entitle any such Borrower or any other Borrower to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
Banks' right to take any other or further action in any circumstances without
notice or demand. No failure or delay on the Agent's or the Banks' part in
exercising any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right. No right, power or remedy conferred
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hereby upon Agent or the Banks shall be exclusive of any other right, power or
remedy referred to herein or now or hereafter available at law, in equity, by
statute or otherwise.
11.6. Benefit, etc. The rights of the Borrowers under this Agreement
shall not be assignable by the Borrowers without the prior written consent of
the Banks. This Agreement shall be binding upon the successors and assigns of
the Borrowers and, except as otherwise provided in Section 11.12, shall inure to
the benefit of and be binding upon each Bank and its successors and assigns.
11.7. Exchange Rate. If, for the purpose of obtaining judgment in any
court or obtaining an order enforcing a judgment, it becomes necessary to
convert any amount due under this Agreement (including, without limitation,
amounts due under Section 7.1 hereof) in Dollars or in any other currency
(hereinafter in this Section 11.7 called the "first currency") into any other
currency (hereinafter in this Section 11.7 called the "second currency"), then
the conversion shall be made at the Agent's spot rate of exchange for buying the
first currency with the second currency prevailing at the Agent's close of
business on the Business Day next preceding the day on which the judgment is
given or (as the case may be) the order is made. In the event that there is a
difference between the rate of exchange on the basis of which the amount of such
judgment or order is determined and the rate of exchange prevailing on the date
of payment, each Borrower hereby agrees to pay such additional amount as may be
necessary to ensure that the amount paid on such date in the second currency is
the amount in such second currency which, when converted at the Agent's spot
rate of exchange for buying the first currency with the second currency
prevailing at the Agent's opening of business on the date of payment, is the
amount which was due under this Agreement in the first currency before such
judgment was obtained or made. Any amount due from any Borrower to the Banks
under the second sentence of this Section 11.7 will be due as a separate debt of
such Borrower to the Banks and shall not be affected by judgment or order being
obtained for any other sum due under or in respect of this Agreement. The
covenant contained in this Section 11.7 shall survive the payment in full of all
of the other obligations of the Borrowers under this Agreement.
11.8. Governing Law. This Agreement shall be governed by the laws of
the Commonwealth of Massachusetts and is intended to take effect as a sealed
instrument.
11.9. Counterparts. This Agreement may be executed in one or more
counterparts each of which shall constitute an original but which taken
together shall constitute but one agreement. In proving this Agreement it shall
not be necessary to produce or account for more than one such counterpart.
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11.10. Consent To Jurisdiction, Waiver of Jury Trial.
(a) Each Borrowing Subsidiary hereby irrevocably submits to
the jurisdiction of any Massachusetts state or federal court sitting in
Boston over any action or proceeding arising out of or relating to this
Agreement and each Borrowing Subsidiary hereby irrevocably agrees that
all claims in respect of such action or proceeding may be heard and
determined in such Massachusetts state or federal court. Each Borrowing
Subsidiary hereby appoints the Company as its process agent (the
"Process Agent"), and the Company hereby agrees to act as its agent at
its office specified in Section 11.2(a) to receive on its behalf and
its property service of copies of the summons and complaint and any
other process which may be served in any such action or proceeding.
Such service may be made to any Borrowing Subsidiary by mailing or
delivering a copy of such process to such Borrowing Subsidiary in care
of the Process Agent at the Process Agent's address set forth above,
and each Borrowing Subsidiary hereby irrevocably authorizes and directs
the Process Agent to accept such service on its behalf. As an
alternative method of service, each Borrowing Subsidiary also
irrevocably consents to the service of any and all process in any such
action or proceeding by the hand delivery or mailing of copies of such
process to such Borrowing Subsidiary at its address specified in its
election to become a Borrowing Subsidiary. Each Borrowing Subsidiary
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
(b) Each Borrowing Subsidiary may change its Process Agent
hereunder by substituting and appointing as its Process Agent another
Person approved by the Agent, such substitution and appointment to be
made pursuant to a written instrument executed by such Borrowing
Subsidiary and such Person in form and substance approved by the Agent,
which approval will not be unreasonably withheld; provided, however,
that each Borrowing Subsidiary shall have a Process Agent at all times.
(c) Nothing in this Section 11.10 shall affect the right of
the Banks to serve legal process in any other manner permitted by law
or affect the right of the Banks to bring any action of proceeding
against any Borrowing Subsidiary of its property in the courts of any
other jurisdiction.
(d) Each Borrower hereby waives its right to a jury trial with
respect to any action or claim arising out of any dispute in connection
with this Agreement or the Notes or any rights or obligations hereunder
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or thereunder or the performance of such rights and obligations. Except
as prohibited by law, each Borrower hereby waives any right which it
may have to claim or recover in any litigation referred to in the
preceding sentence any special, exemplary, punitive or consequential
damages or any damages other than, or in addition to, actual damages.
11.11. Transitional Provisions. All "Loans", as defined in this
Agreement, which were outstanding hereunder as of the date hereof, shall for
purposes of this Agreement be deemed Advances made under and subject to the
terms and conditions of this Agreement, even if such Advances are not in
accordance with the Commitment Percentages of the Banks hereunder and shall bear
interest at the rate determined under this Agreement. Upon the termination of
the Interest Period determined in accordance with this Agreement with respect to
such Advances, the Company shall repay such Advances and may, subject to the
terms and conditions of this Agreement, reborrow such amounts in accordance with
the Banks' Commitment Percentages. The Commitment Fee payable to each Bank shall
be determined on the basis of each Bank's portion of the unused Total Commitment
rather than its Commitment Percentage until the Advances are made in accordance
with the Commitment Percentages. This Agreement shall not become effective until
the Company shall have paid the Agent's fees and expenses in accordance with
Section 11.1(b) hereof in connection with the completion of this Agreement.
11.12. Exempt Character of Transaction. This Agreement is made with the
Banks in reliance upon their several representations to the Company, which by
their execution of this Agreement they hereby confirm, that each Bank for itself
and not for any other Bank has no present intention of selling or otherwise
disposing of any interest in the Loan Accounts or the Notes other than
participations by banking institutions. The Company represents to the Banks that
it has not, either directly or through any agent, offered any interest in the
Notes (or similar instruments) for sale to or solicited any offers to buy any
interest therein from, or otherwise approached or negotiated in respect of any
interest therein with, any person or persons other than the Banks. If any Bank
is not incorporated under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest or fees are payable
hereunder for its account, deliver to the Borrower and the Agent certification
as to its exemption from deduction or withholding of any United States federal
income taxes.
12. ASSIGNMENT AND PARTICIPATION.
12.1. Conditions to Assignment by Banks. Except as provided herein,
each Bank may assign to one or more Eligible Assignees all of its interest,
rights and obligations under this Agreement (including all of its Commitment
Percentage and Commitment and the all of the Loans at the time owing to it and
the Notes held by it); provided that (a) each of the Agent and, unless a Default
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or Event of Default shall have occurred and be continuing, the Company shall
have given its prior written consent to such assignment, which consent, in the
case of the Company, will not be unreasonably withheld, (b) each such assignment
shall be constant, and not a varying, percentage of all the assigning Bank's
rights and obligations under this Agreement (c) each assignment shall be in an
amount that is equal to 100% of such assigning Bank's Commitment and (d) the
parties to such assignment shall execute and deliver to the Agent, for recording
in the Register (as hereinafter defined), an Assignment and Acceptance,
substantially in the form of Exhibit A hereto (an "Assignment and Acceptance"),
together with any Note subject to such assignment. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
(5) Business Days after the execution thereof, (i) the assignee thereunder shall
be a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder, and (ii) the assigning Bank
shall, to the extent provided in such assignment and upon payment to the Agent
of the registration fee referred to in Section 12.3, be released from its
obligations under this Agreement.
12.2 Certain Representations and Warranties; Limitations; Covenants. By
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Bank makes no
representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or the attachment,
perfection or priority of any security interest or mortgage,
(b) the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
the Company and its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the
performance or observance by the Company and its Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Agreement or any of
the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto;
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(c) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
referred to in Section 4.1.7 and Section 5.4 and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance
upon the assigning Bank, the Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Agreement;
(e) such assignee represents and warrants that it is an
Eligible Assignee;
(f) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under
this Agreement and the other Loan Documents as are delegated to the
Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Bank; and
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance.
12.3. Register. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentage of, and principal amount of the Loans owing to the Banks from time to
time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Company, the Agent and the Banks may treat each Person
whose name is recorded in the Register as a Bank hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Company
and the Banks at any reasonable time and from time to time upon reasonable prior
notice. Upon each recordation, the assigning Bank agrees to pay to the Agent a
registration fee in the sum of $3,000.
12.4. New Notes. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Agent shall (a) record the information contained therein in
the Register, and (b) give prompt notice thereof to the Company and the Banks
(other than the assigning Bank). Within five (5) Business Days after receipt of
such notice, each Borrowing Subsidiary, at its own expense, shall execute and
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deliver to the Agent, in exchange for each surrendered Note, a new Note to the
order of such Eligible Assignee in an amount equal to the amount assumed by such
Eligible Assignee pursuant to such Assignment and Acceptance. Such new Notes
shall provide that they are replacements for the surrendered Notes, shall be in
an aggregate principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such in Assignment and
Acceptance and shall otherwise be substantially the form of the assigned Notes.
The surrendered Notes shall be cancelled and returned to the Company.
12.5. Participations. Each Bank may sell participations to one or more
banks or other entities in all or a portion of such Bank's rights and
obligations under this Agreement and the other Loan Documents; provided that (a)
each such participation shall be in an amount of not less than $5,000,000, or,
if such Bank's Commitment is less than $5,000,000, the amount of such Bank's
Commitment, (b) any such sale or participation shall not affect the rights and
duties of the selling Bank hereunder to the Company and (c) the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan Documents shall be
the rights to approve waivers, amendments or modifications that would reduce the
principal of or the interest rate on any Loans, extend the term or increase the
amount of the Commitment of such Bank as it relates to such participant, reduce
the amount of any commitment fees to which such participant is entitled or
extend any regularly scheduled payment date for principal or interest.
12.6. Disclosure. The Company agrees that in addition to disclosures
made in accordance with standard and customary banking practices any Bank may
disclose information obtained by such Bank pursuant to this Agreement to
assignees and potential assignees hereunder; provided that such assignees or
potential assignees shall agree (a) to treat in confidence such information
unless such information otherwise becomes public knowledge, (b) not to disclose
such information to a third party, except as required by law or legal process
and (c) not to make use of such information for purposes of transactions
unrelated to such contemplated assignment. In addition, the parties hereto
hereby agree that any Bank may disclose information obtained by such Bank
pursuant to this Agreement to participants and potential participants hereunder,
provided that such information is public information. Such Bank shall not
disclose any non-public information to any participant or potential participant
hereunder without the Company's prior written consent. In addition, such
participant or potential participant shall agree (a) to treat in confidence such
information unless such information otherwise becomes public knowledge, (b) not
to disclose such information to a third party, except as required by law or
legal process and (c) not to make use of such information for purposes of
transactions unrelated to such contemplated participation
12.7. Assignee or Participant Affiliated with the Company. If any
assignee Bank is an Affiliate of the Company, then any such assignee Bank
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shall have no right to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Agent pursuant to Section 8, and the
determination of the Majority Banks shall for all purposes of this Agreement and
the other Loan Documents be made without regard to such assignee Bank's interest
in any of the Loans. If any Bank sells a participating interest in any of the
Loans to a participant, and such participant is the Company or an Affiliate of
the Company, then such transferor Bank shall promptly notify the Agent of the
sale of such participation. A transferor Bank shall have no right to vote as a
Bank hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or modifications
to any of the Loan Documents or for purposes of making requests to the Agent
pursuant to Section 8 to the extent that such participation is beneficially
owned by the Company or any Affiliate of the Company, and the determination of
the Majority Banks shall for all purposes of this Agreement and the other Loan
Documents be made without regard to the interest of such transferor Bank in the
Loans to the extent of such participation.
12.8. Miscellaneous Assignment Provisions. Any assigning Bank shall
retain its rights to be indemnified pursuant to the Agreement with respect to
any claims or actions arising prior to the date of such assignment. If any
assignee Bank is not incorporated under the laws of the United States of America
or any state thereof, it shall, prior to the date on which any interest or fees
are payable hereunder or under any of the other Loan Documents for its account,
deliver to the Company and the Agent certification as to its exemption from
deduction or withholding of any United States federal income taxes. Anything
contained in this Section 12 to the contrary notwithstanding, any Bank may at
any time pledge all or any portion of its interest and rights under this
Agreement (including all or any portion of its Notes) to any of the twelve
Federal Reserve Banks organized under ss.4 of the Federal Reserve Act, 12 U.S.C.
ss.341. No such pledge or the enforcement thereof shall release the pledgor Bank
from its obligations hereunder or under any of the other Loan Documents.
12.9. Assignment by Company. Neither the Company nor any Subsidiary
shall assign or transfer any of its rights or obligations under any of the
Loan Documents without the prior written consent of each of the Banks.
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of
the parties hereto on the day first above written.
TERADYNE, INC.
By:/s/ Stuart M. Osattin__________
Title:Treasurer
THE FIRST NATIONAL BANK
OF BOSTON, individually and,
as Agent
By:/s/ Daniel G. Head, Jr.________
Title:Vice President
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS
ASSOCIATION
By:/s/ Peter Tomei________________
Title: Managing Director
STATE STREET BANK AND
TRUST COMPANY, N.A.
By:/s/ Lisa Anne Boutiette________
Title: Vice President
FLEET BANK OF
MASSACHUSETTS, N.A.
By:/s/ Catherine M. Bruton_________
Title: Vice President
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Schedule 1
Bank Commitment Commitment
Percentage of
Loans
The First National Bank $54,000,000 45.00%
of Boston
Bank of America $39,000,000 32.50%
Fleet Bank of $16,500,000 13.75%
Massachusetts, N.A.
State Street Bank $10,500,000 8.75%
Totals $120,000,000 100.00%