UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 for the quarterly period ended September 30, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from ________________ to __________________
0-28040
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COMMISSION FILE NUMBER
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BACOU USA, INC.
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(Exact name of registrant as specified in its charter)
DELAWARE 05-0470688
----------------------- -------------------------
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10 THURBER BOULEVARD, SMITHFIELD, RHODE ISLAND 02917-1896
------------------------------------------------ ----------
(Address of principal executive offices) (Zip Code)
(401) 233-0333
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(Registrant's telephone number, including area code)
------------------------
INDICATE BY CHECK MARK WHETHER THE REGISTRANT (1) HAS FILED ALL REPORTS
REQUIRED TO BE FILED BY SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934 DURING THE PRECEDING 12 MONTHS (OR FOR SUCH SHORTER PERIOD THAT THE
REGISTRANT WAS REQUIRED TO FILE SUCH REPORTS), AND (2) HAS BEEN SUBJECT TO SUCH
FILING REQUIREMENTS FOR THE PAST 90 DAYS. YES [X] NO [ ]
The number of shares outstanding of the issuer's Common Stock, $.001 par value,
as of November 1, 1999 was 17,629,865.
<PAGE>
BACOU USA, INC.
INDEX
PART I. FINANCIAL INFORMATION PAGE NO.
Item 1. Financial Statements
Consolidated Condensed Balance Sheets,
December 31, 1998 and September 30, 1999 3
Consolidated Condensed Statements of Income, Three
Months and Nine Months Ended September 30, 1998 and 1999 4
Consolidated Condensed Statements of Cash Flows,
Nine Months Ended September 30, 1998 and 1999 5
Notes to Consolidated Condensed Financial Statements 6 - 8
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 9 - 16
Item 3. Quantitative and Qualitative Disclosures About Market Risk 16
PART II. OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K 17
Signatures 18
<PAGE>
PART I. Financial Information
ITEM I. Financial Statements
BACOU USA, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED BALANCE SHEETS
(in thousands, except share data)
<TABLE>
<CAPTION>
(unaudited)
December 31, September 30,
1998 1999
--------------- ----------------
ASSETS
Current assets:
<S> <C> <C>
Cash and cash equivalents................................. $ 1,090 $ 4,830
Trade accounts receivable, net............................ 27,110 45,661
Inventories............................................... 38,246 43,136
Other current assets...................................... 1,251 2,384
Deferred income taxes..................................... 2,138 1,860
--------------- ---------------
Total current assets.................................... 69,835 97,871
Property and equipment, net............................... 53,998 71,706
Intangible assets, net.................................... 169,937 198,365
--------------- ---------------
Total assets............................................ $293,770 $367,942
=============== ===============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current installments of long-term debt................... $ 15,714 $ 23,592
Accounts payable......................................... 8,959 8,691
Accrued expenses......................................... 12,242 20,697
Income taxes payable..................................... 1,828 2,088
--------------- -----------------
Total current liabilities............................... 38,743 55,068
Long-term debt.............................................. 92,050 126,015
Deferred income taxes....................................... 6,311 8,279
Other liabilities........................................... 2,754 3,338
--------------- -----------------
Total liabilities....................................... 139,858 192,700
--------------- -----------------
Common stock subject to a put option........................ 9,450 ---
--------------- -----------------
Preferred stock, $.001 par value, 5,000,000 shares
authorized, no shares issued and outstanding.............. --- ---
Common stock, $.001 par value, 50,000,000 shares
authorized, 17,610,465 shares in 1998 and 17,629,865
shares in 1999 issued and outstanding..................... 17 18
Additional paid-in capital.................................. 63,258 73,020
Retained earnings........................................... 81,187 102,204
--------------- -----------------
Total stockholders' equity.............................. 144,462 175,242
--------------- -----------------
Total liabilities and stockholders' equity.............. $293,770 $367,942
=============== =================
</TABLE>
See accompanying notes to consolidated condensed financial statements.
<PAGE>
BACOU USA, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF INCOME
(in thousands, except per share data)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------------- ----------------------------
1998 1999 1998 1999
------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Net sales.......................................... $ 56,899 $ 72,940 $165,278 $201,422
Cost of sales...................................... 26,738 38,177 79,284 106,036
------------- ------------- ------------- -------------
Gross profit....................................... 30,161 34,763 85,994 95,386
Operating expenses:
Selling.......................................... 9,273 10,070 26,683 28,752
General and administrative....................... 5,420 6,263 17,479 16,726
Research and development......................... 1,211 1,347 2,943 3,819
Purchased in-process research and development.. --- --- 4,680 ---
Amortization of intangible assets................ 2,104 2,570 5,661 6,993
------------- ------------- ------------- -------------
Total operating expenses........................... 18,008 20,250 57,446 56,290
------------- ------------- ------------- -------------
Operating income................................... 12,153 14,513 28,548 39,096
Other expense (income):
Interest expense................................. 1,808 2,434 4,601 6,342
Interest income.................................. (21) (25) (90) (50)
Other............................................ (120) 178 (159) (7)
------------- ------------- ------------- -------------
Total other expense................................ 1,667 2,587 4,352 6,299
------------- ------------- ------------- -------------
Income before income taxes......................... 10,486 11,926 24,196 32,797
Income taxes....................................... 3,811 4,291 8,686 11,780
------------- ------------- ------------- -------------
Net income......................................... $ 6,675 $ 7,635 $15,510 $21,017
============= ============= ============= =============
Earnings per share:
Basic............................................ $ 0.38 $ 0.43 $ 0.88 $ 1.19
============= ============= ============= =============
Diluted.......................................... $ 0.38 $ 0.43 $ 0.88 $ 1.19
============= ============= ============= =============
Weighted average shares outstanding:
Basic............................................ 17,604 17,627 17,599 17,623
============= ============= ============= =============
Diluted.......................................... 17,788 17,694 17,722 17,711
============= ============= ============= =============
</TABLE>
See accompanying notes to consolidated condensed financial statements.
<PAGE>
BACOU USA, INC. AND SUBSIDIARIES
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
--------------------------------
1998 1999
-------------- --------------
Cash flows from operating activities:
<S> <C> <C>
Net income........................................................ $ 15,510 $ 21,017
Adjustments to reconcile net income to net cash provided
by operating activities:
Depreciation and amortization..................................... 10,427 13,190
Purchased in-process research and development..................... 4,680 ---
Deferred income taxes............................................. (865) 2,246
Change in assets and liabilities, net of effects of acquired
companies:
Trade accounts receivable........................................ (8,392) (12,214)
Inventories...................................................... (7,151) 4,015
Prepaid expenses and other current assets........................ 1,434 730
Accounts payable................................................. 568 (3,097)
Accrued expenses................................................. 6,034 1,361
Income taxes..................................................... 273 261
-------------- --------------
Net cash provided by operating activities........................ 22,518 27,509
-------------- --------------
Cash flows from investing activities:
Capital expenditures............................................... (10,104) (14,510)
Acquisition of businesses, including direct costs of
acquisition, net of cash acquired................................ (121,058) (38,336)
-------------- --------------
Net cash used in investing activities............................ (131,162) (52,846)
-------------- --------------
Cash flows from financing activities:
Proceeds from long-term debt....................................... 110,000 61,160
Repayment of long-term debt........................................ (13,796) (16,092)
Advances from (repayment of) note payable, net..................... 12,100 (16,304)
Proceeds from issuance of common stock............................. 286 313
Repurchase of common stock......................................... (46) ---
-------------- --------------
Net cash provided by financing activities........................ 108,544 29,077
-------------- --------------
Net increase (decrease) in cash and cash equivalents................. (100) 3,740
Cash and cash equivalents at beginning of period..................... 1,277 1,090
-------------- --------------
Cash and cash equivalents at end of period........................... $ 1,177 $ 4,830
============== ==============
Supplemental disclosures of cash flow information:
Cash paid during the period for interest........................... $ 3,927 $ 6,392
============== ==============
Cash paid during the period for income taxes....................... $ 10,617 $ 9,609
============== ==============
Fair value of stock options issued pursuant to a consulting
agreement........................................................ $ 337 $ ---
============== ==============
</TABLE>
See accompanying notes to consolidated condensed financial statements.
<PAGE>
BACOU USA, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
SEPTEMBER 30, 1999
(unaudited)
1. BASIS OF PRESENTATION
The accompanying consolidated condensed financial statements ("financial
statements") include the accounts of Bacou USA, Inc. and its wholly-owned
subsidiaries (together the "Company"). The Company designs, manufactures and
sells leading brands of products that protect the sight, hearing, respiratory
systems and hands of workers against occupational hazards.
The financial statements have been prepared pursuant to the rules and
regulations of the Securities and Exchange Commission for interim financial
information, including the instructions to Form 10-Q and Rule 10-01 of
Regulation S-X. Accordingly, certain information and footnote disclosures
normally required in complete financial statements prepared in accordance with
generally accepted accounting principles have been condensed or omitted. In the
opinion of management these financial statements include all adjustments
necessary for a fair presentation of the results of operations for the interim
periods presented. Results of operations for interim periods may not be
indicative of results expected for a full year.
2. ACQUISITION OF PERFECT FIT GLOVE CO., INC.
Effective April 1, 1999, the Company purchased the assets of Perfect Fit Glove
Co., Inc. and certain affiliates ("Perfect Fit"), which manufactures and sells
protective gloves and other related products worldwide. Perfect Fit had fiscal
year 1998 combined net sales of $47.3 million. The Company purchased the assets
of Perfect Fit for $37.8 million in cash plus the assumption of certain
liabilities equal to approximately $17.5 million. The Company has agreed to pay
additional contingent consideration of up to $6.0 million to the extent actual
combined cash flow of the acquired business for 1999 exceeds certain specified
targets.
The acquisition was financed by a $50.0 million term loan from Banque Nationale
de Paris ("BNP") made in March 1999. The term loan bears interest at a per annum
rate equal to three-month LIBOR plus 0.60% and provides for repayment over a
seven year term.
The acquisition has been accounted for under the purchase method of accounting
and, therefore, operating results of Perfect Fit have been included in the
consolidated results of the Company beginning on April 1, 1999. The purchase
price for Perfect Fit, including contingent consideration, has been allocated to
the fair value of assets purchased and liabilities assumed as shown in the
following table. The excess of the purchase price over the fair value of net
assets acquired has been recorded as goodwill and is being amortized over 30
years.
(in thousands)
Working capital......................... $6,990
Property and equipment.................. 9,395
Long-term debt.......................... (7,770)
Goodwill................................ 35,235
<PAGE>
3. TRADE ACCOUNTS RECEIVABLE
An allowance for doubtful accounts is deducted from trade accounts receivable in
the accompanying financial statements. The allowance for doubtful accounts was
$1,150,000 at December 31, 1998 and $1,224,000 at September 30, 1999.
4. INVENTORIES
Inventories consist of the following:
December 31, September 30,
(in thousands) 1998 1999
--------------- --------------
Raw material and supplies............... $16,407 $19,484
Work-in-process......................... 5,165 5,400
Finished goods.......................... 16,674 18,252
--------------- --------------
$38,246 $43,136
=============== ==============
5. PROPERTY, EQUIPMENT AND INTANGIBLE ASSETS
Accumulated depreciation and amortization on property and equipment totaled
$17,954,000 at December 31, 1998 and $24,124,000 at September 30, 1999.
Accumulated amortization on intangible assets totaled $20,501,000 at December
31, 1998 and $27,540,000 at September 30, 1999.
6. SEGMENT DATA
The Company has three reportable segments -- the safety segment, the glove
segment and the optical frames and instruments segment. The safety segment
includes consumable products (protective eyewear and hearing protection) and
technical products (respirators and gas monitors), all of which are sold
principally to industrial and fire safety distributors. The Company began
reporting a glove segment in connection with its April 1, 1999, acquisition of
Perfect Fit. Glove segment products include protective gloves and related items,
which are sold principally to industrial safety distributors. The optical frames
and instruments segment includes eyeglass frames and components, and vision
screening equipment. Eyeglass frames and components are principally purchased by
optical laboratory customers who fit frames with prescription lenses to create
completed eyewear products. Information presented in the following table as "all
other" includes all non-operating entities.
<PAGE>
The Company evaluates segment performance based upon a measure of profit
represented by operating income prior to non-recurring gains and losses,
intangible amortization expense, interest and taxes. Presented below is a
summary of financial data for the Company's reportable segments. Adjustments to
reconcile segment operating income to consolidated operating income for the
three months ended September 30, 1998 and 1999, include amortization expense
totaling $2,104,000 in 1998 and $2,570,000 in 1999. Adjustments to reconcile
segment operating income to consolidated operating income for the nine months
ended September 30, 1998 and 1999, include amortization expense totaling
$5,661,000 in 1998 and $6,993,000 in 1999, and also include non-recurring
charges totaling $7,718,000 in 1998 and $590,000 in 1999.
<TABLE>
<CAPTION>
Optical Frames
and
Safety Glove Instruments All Reconciling Consolidated
(in thousands) Segment Segment Segment Other Adjustments Total
----------- ---------- ---------------- ---------- -------------- ------------
Three months ended
September 30, 1998:
<S> <C> <C> <C> <C> <C> <C>
Net sales..................... $49,520 $ --- $ 7,379 $ --- $ --- $56,899
Operating income (loss)....... 15,231 --- 577 (1,551) (2,104) 12,153
Depreciation.................. 1,280 --- 303 6 --- 1,589
Capital expenditures.......... 4,366 --- 360 28 --- 4,754
Three months ended
September 30, 1999:
Net sales..................... $52,351 $13,007 $ 7,582 $ --- $ --- $ 72,940
Operating income (loss)....... 16,010 2,106 941 (1,974) (2,570) 14,513
Depreciation.................. 1,464 31 369 8 --- 1,872
Capital expenditures.......... 7,782 158 308 271 --- 8,519
</TABLE>
<TABLE>
<CAPTION>
Optical Frames
and
Safety Glove Instruments All Reconciling Consolidated
(in thousands) Segment Segment Segment Other Adjustments Total
----------- ---------- ---------------- ---------- -------------- ------------
Nine months ended
September 30, 1998:
<S> <C> <C> <C> <C> <C> <C>
Net sales..................... $141,441 $ --- $ 23,837 $ --- $ --- $165,278
Operating income (loss)....... 43,906 --- 2,295 (4,274) (13,379) 28,548
Depreciation.................. 3,840 --- 908 18 --- 4,766
Total assets (December 31).... 250,172 --- 41,938 1,660 --- 293,770
Capital expenditures.......... 8,240 --- 1,408 456 --- 10,104
Nine months ended
September 30, 1999:
Net sales..................... $150,821 $25,795 $ 24,806 $ --- $ --- $201,422
Operating income (loss)....... 44,950 3,966 2,718 (4,955) (7,583) 39,096
Depreciation.................. 4,768 306 1,107 16 --- 6,197
Total assets.................. 263,080 61,518 39,472 3,872 --- 367,942
Capital expenditures.......... 11,513 214 2,440 343 --- 14,510
</TABLE>
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
FACTORS THAT MAY AFFECT FUTURE PERFORMANCE
Statements contained in this Form 10-Q that are not historical facts are
forward-looking statements that are made pursuant to the safe harbor provisions
of the Private Securities Litigation Reform Act of 1995. In addition, when used
in this Form 10-Q, words such as "believes," "anticipates," "expects," and
similar expressions are intended to identify forward-looking statements. We
caution you that a number of important factors could cause actual outcomes to
differ materially from those expressed in any forward-looking statements made by
us, or on our behalf. Forward-looking statements involve a number of risks and
uncertainties including, but not limited to:
o continued demand for our current product lines;
o the success of our new product introductions;
o the success of our acquisition strategy, including our ability to integrate
new businesses and achieve expected cost savings;
o continued availability and favorable pricing of raw materials;
o our ability and the ability of our key vendors to successfully respond to
year 2000 issues;
o the effect of any work stoppages;
o competitive pressures;
o general economic conditions; and
o regulatory matters.
We cannot assure you that we will be able to anticipate or respond in a timely
fashion to changes in any of the factors listed above, which could adversely
affect our operating results in one or more fiscal quarters. Our operating
results in any past period should not be considered indicative of the results to
be expected for future periods. Fluctuations in our operating results may also
result in fluctuations in the price of our common stock.
ACQUISITIONS
Effective April 1, 1999, we purchased substantially all the assets and assumed
substantially all the liabilities of Perfect Fit, which manufactures and sells
protective gloves and other related products worldwide. Perfect Fit had fiscal
year 1998 combined net sales of $47.3 million. We acquired the assets of Perfect
Fit for $37.8 million in cash plus the assumption of certain liabilities equal
to approximately $17.5 million. The acquisition has been accounted for under the
purchase method of accounting and, therefore, operating results of Perfect Fit
have been included in our consolidated results beginning on April 1, 1999.
Effective February 27, 1998, we acquired substantially all assets and assumed
substantially all liabilities of Howard S. Leight & Associates, Inc. (d/b/a
Howard Leight Industries, "Howard Leight"), a manufacturer of hearing protection
products (including disposable, reusable and banded ear plugs, and ear muffs)
for cash consideration of $125.9 million, $5.9 million of which represented the
refinancing of Howard Leight indebtedness.
Certain non-recurring costs, principally relating to the above acquisitions,
have been included in our 1998 and 1999 operating results. In connection with
the Howard Leight acquisition, a portion of the acquisition price totaling $4.7
million was allocated to the fair value of purchased in-process research and
development and charged to operating expenses during the first quarter of 1998.
A portion of the acquisition price for each of the above acquisitions was also
allocated to the fair value of acquired inventories. The increase of acquired
inventories from historical cost to fair value is recorded as cost of sales when
the related inventory is sold, and reduced gross profit during the first nine
months of 1998 and 1999 by $1.0 million and $0.6 million, respectively. Finally,
cash bonuses in the amount of $0.6 million were paid to certain senior
executives of Howard Leight in connection with that acquisition and were
included with general and administrative expenses during the first quarter of
1998. The following discussion provides an analysis of our actual operating
results, and also analyzes our operating results excluding the effect of these
acquisition-related items.
RESULTS OF OPERATIONS
The following table presents selected operating data of Bacou and such amounts
as percentages of net sales for the periods indicated.
<TABLE>
<CAPTION>
THREE MONTHS ENDED SEPTEMBER 30, NINE MONTHS ENDED SEPTEMBER 30,
------------------------------------------ ---------------------------------------------
1998 1999 1998 1999
-------------------- -------------------- --------------------- ----------------------
(in thousands, except percentages)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net sales............................. $56,899 100.0% $72,940 100.0% $165,278 100.0% $201,422 100.0%
Cost of sales (1)..................... 26,738 47.0 38,177 52.3 79,284 48.0 106,036 52.6
--------- --------- ---------- --------- ----------- -------- ----------- ---------
Gross profit.......................... 30,161 53.0 34,763 47.7 85,994 52.0 95,386 47.4
Operating expenses:
Selling............................. 9,273 16.3 10,070 13.8 26,683 16.1 28,752 14.3
General and administrative (2) 5,420 9.5 6,263 8.6 17,479 10.6 16,726 8.3
Research and development....... 1,211 2.2 1,347 1.9 2,943 1.8 3,819 1.9
Purchased in-process research
and development (3)................. --- --- --- --- 4,680 2.8 --- ---
Amortization of intangible assets 2,104 3.7 2,570 3.5 5,661 3.4 6,993 3.5
--------- --------- ---------- --------- ----------- -------- ----------- ---------
Total operating expenses.............. 18,008 31.7 20,250 27.8 57,446 34.7 56,290 28.0
--------- --------- ---------- --------- ----------- -------- ----------- ---------
Operating income...................... 12,153 21.3 14,513 19.9 28,548 17.3 39,096 19.4
Other expense......................... 1,667 2.9 2,587 3.5 4,352 2.7 6,299 3.1
--------- --------- ---------- --------- ----------- -------- ----------- ---------
Income before income taxes............ 10,486 18.4 11,926 16.4 24,196 14.6 32,797 16.3
Income taxes.......................... 3,811 6.7 4,291 5.9 8,686 5.2 11,780 5.9
--------- --------- ---------- --------- ----------- -------- ----------- ---------
Net income............................ $ 6,675 11.7 $ 7,635 10.5 $ 15,510 9.4 $ 21,017 10.4
========= ========= ========== ========= =========== ======== =========== =========
</TABLE>
(1) Includes acquisition-related inventory adjustments totaling $1.0 million
for the nine months ended September 30, 1998, and $0.6 million for the nine
months ended September 30, 1999.
(2) Includes non-recurring termination payments totaling $1.4 million, and
acquisition-related bonuses totaling $0.6 million, for the nine months
ended September 30, 1998.
(3) Includes acquisition-related charge for purchased research and development
totaling $4.7 million for the nine months ended September 30, 1998.
THREE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED WITH THREE MONTHS ENDED SEPTEMBER
30, 1998
NET SALES. Our net sales increased 28.2% from $56.9 million for the three months
ended September 30, 1998 to $72.9 million for the three months ended September
30, 1999. Net sales in the 1999 period included sales totaling $13.0 million for
our glove segment, consisting entirely of the Perfect Fit business (acquired by
us on April 1, 1999), accounting for an increase of 22.9%. Net sales for our
safety segment increased 5.7% from $49.5 million in 1998 to $52.4 million in
1999, representing a 5.5% increase in domestic sales and an 8.5% increase in
foreign sales. Net sales for our optical frames and instruments segment
increased 2.8% from $7.4 million in 1998 to $7.6 million in 1999.
COST OF SALES. Our cost of sales increased 42.8% from $26.7 million for the
three months ended September 30, 1998 to $38.2 million for the three months
ended September 30, 1999, primarily due to inclusion of operating results of our
Perfect Fit business.
GROSS PROFIT. Our gross profit increased 15.3% from $30.2 million for the three
months ended September 30, 1998 to $34.8 million for the three months ended
September 30, 1999. The gross margin for our glove segment is considerably lower
than the historical combined gross margin of our other businesses. Our overall
gross margin declined from 53.0% in 1998 to 47.7% in 1999, principally due to
the lower gross margins attributable to the glove segment.
OPERATING EXPENSES. Our operating expenses increased 12.5% from $18.0 million
for the three months ended September 30, 1998 to $20.3 million for the three
months ended September 30, 1999. This increase resulted principally from
inclusion of operating expenses of the Perfect Fit business in the 1999 period.
Excluding amortization expense, our operating expenses were 24.3% of net sales
in 1999 and 28.0% of net sales in 1998. Selling and administrative costs of our
Perfect Fit business have historically been low as a percentage of net sales and
inclusion of this business in our 1999 operating results is the principal cause
for the reduction in our overall ratio of operating expenses to net sales. In
addition, we have reduced operating expenses in our other segments. Exclusive of
Perfect Fit, our ratio of operating expenses to net sales declined from 28.0% in
1998 to 26.8% in 1999.
OPERATING INCOME. Our operating income increased 19.4% from $12.2 million for
the three months ended September 30, 1998 to $14.5 million for the three months
ended September 30, 1999. The operating margin for our glove segment was equal
to 16.2% in the third quarter of 1999, and inclusion of the operating results of
this business was the principal cause for a decline in our consolidated
operating margin from 21.3% in 1998 to 19.9% in 1999.
OTHER EXPENSE. Other expense increased 55.2% from $1.7 million for the three
months ended September 30, 1998 to $2.6 million for the three months ended
September 30, 1999. Other expense consists principally of net interest expense
totaling $1.8 million in the 1998 period and $2.4 million in the 1999 period.
The increase in net interest expense from 1998 to 1999 is due principally to
borrowings we made in connection with our acquisition of Perfect Fit.
Income Taxes. Our effective income tax rate was 36.3% in the 1998 period and
36.0% in the 1999 period. The effective rate in both periods was higher than the
federal statutory rate of 35.0% due to state and local income taxes.
NET INCOME. Our net income increased 14.4% from $6.7 million for the three
months ended September 30, 1998 to $7.6 million for the three months ended
September 30, 1999.
NINE MONTHS ENDED SEPTEMBER 30, 1999 COMPARED WITH NINE MONTHS ENDED SEPTEMBER
30, 1998
NET SALES. Our net sales increased 21.9% from $165.3 million for the nine months
ended September 30, 1998 to $201.4 million for the nine months ended September
30, 1999. The increase in net sales from 1998 to 1999 was principally due to the
effect of acquired businesses. Operating results of our Perfect Fit business
have been included for six months in 1999 and operating results of our Howard
Leight business have been included for a full nine months in 1999. The 1998
period included the Howard Leight business for seven months and did not include
the Perfect Fit business.
Net sales for our safety segment increased 6.6% from $141.4 million in 1998 to
$150.8 million in 1999, while net sales for our optical frames and instruments
segment increased 4.1% from $23.8 million in 1998 to $24.8 million in 1999. Net
sales for our safety segment have been adversely affected during 1999 as a
result of difficulties in the South American economy, resulting in a decline in
foreign sales for this segment. Our sales to customers located in South American
countries during the nine months ended September 30, 1999, were 26.0% lower than
the comparable period in 1998.
COST OF SALES. Our cost of sales increased 33.7% from $79.3 million for the nine
months ended September 30, 1998 to $106.0 million for the nine months ended
September 30, 1999, primarily due to inclusion of operating results of acquired
businesses.
GROSS PROFIT. Our gross profit increased 10.9% from $86.0 million for the nine
months ended September 30, 1998 to $95.4 million for the nine months ended
September 30, 1999. Excluding acquisition-related inventory adjustments in both
periods, our gross margin declined from 52.6% in 1998 to 47.6% in 1999,
principally due to lower gross margins attributable to our newly acquired glove
segment.
OPERATING EXPENSES. Our operating expenses declined 2.0% from $57.4 million for
the nine months ended September 30, 1998 to $56.3 million for the nine months
ended September 30, 1999. Excluding non-recurring items in 1998, operating
expenses increased 10.9% from $50.7 million in the 1998 period to $56.3 million
in the 1999 period. This increase resulted principally from inclusion of
operating expenses of acquired businesses.
Excluding amortization expense and non-recurring items, our operating expenses
were 24.5% of net sales in 1999 and 27.3% of net sales in 1998. As discussed
above, our ratio of operating expenses to net sales declined principally due to
inclusion in 1999 of the operating results of our Perfect Fit business, which
has historically had lower selling and administrative costs as a percentage of
its net sales.
OPERATING INCOME. Principally as a result of non-recurring items in the 1998
period, our operating income of $39.1 million for the nine months ended
September 30, 1999, was 36.9% higher than our operating income of $28.5 million
for the nine months ended September 30, 1998. Excluding non-recurring items in
both periods, our operating income increased 9.4% from $36.3 million in the 1998
period to $39.7 million in the 1999 period, while our operating margin declined
from 21.9% in 1998 to 19.7% in 1999. As discussed above, inclusion of the
operating results of our newly acquired glove segment during 1999 was the
principal cause for the decline in our consolidated operating margin from 1998
to 1999.
OTHER EXPENSE. Other expense increased 44.7% from $4.4 million for the nine
months ended September 30, 1998 to $6.3 million for the nine months ended
September 30, 1999. Other expense consists principally of net interest expense
totaling $4.5 million in the 1998 period and $6.3 million in the 1999 period.
The increase in net interest expense from 1998 to 1999 is due to additional
borrowings we made in connection with our recent acquisitions.
INCOME TAXES. Our effective income tax rate was 35.9% in both the 1998 and 1999
periods. The effective rate in both periods was higher than the federal
statutory rate of 35.0% due to state and local income taxes.
NET INCOME. Principally as a result of non-recurring items in the 1998 period,
our net income of $21.0 million for the nine months ended September 30, 1999,
was 35.5% higher than our net income of $15.5 million for the nine months ended
September 30, 1998. Excluding non-recurring items in both periods, our net
income increased 5.3% from $20.3 million in the 1998 period to $21.4 million in
the 1999 period.
LIQUIDITY AND CAPITAL RESOURCES
Our liquidity historically has been derived from cash flow provided by
operations and, periodically, from bank borrowings utilized to finance the
acquisition of businesses. We utilize EBITDA (earnings before interest, taxes,
depreciation and amortization) as a measure of cash flow provided by our
operations. As used by Bacou, EBITDA represents operating income plus
depreciation and amortization, adjusted for non-recurring items. Our EBITDA
increased 13.2% from $46.7 million for the nine months ended September 30, 1998
to $52.9 million for the nine months ended September 30, 1999. EBITDA should not
be considered in isolation or as a substitute for net earnings or net cash
provided by operating, investing or financing activities, each prepared in
accordance with generally accepted accounting principles.
Our working capital increased $11.7 million from $31.1 million at December 31,
1998, to $42.8 million at September 30, 1999, primarily due to increases in
trade receivables. Trade receivables increased by $6.3 million as a result of
the acquisition of Perfect Fit Glove, and also increased due to higher sales
volume and the effect of eliminating early-pay discounts at our Howard Leight
division.
Cash used in investing activities totaled $52.8 million for the nine months
ended September 30, 1999, compared with $131.2 million for the nine months ended
September 30, 1998. The 1999 period included $37.8 million expended for the
acquisition of Perfect Fit and included $14.5 million for capital expenditures.
The 1998 period included $120.0 million expended for the acquisition of Howard
Leight and included $10.1 million for capital expenditures.
In July 1999 purchased our manufacturing facility in Rhode Island, and adjacent
land, for approximately $5.8 million. We plan to build a 44,000 square foot
addition to this facility with a 6,000 square foot mezzanine area for office
space, at a cost equal to approximately $3.0 million, and expect the addition to
be completed by the second quarter of 2000.
In connection with our acquisition of Perfect Fit, we agreed to pay additional
contingent consideration of up to $6.0 million to the extent actual combined
cash flow of the acquired business for 1999 exceeds certain specified targets.
We anticipate that we will be obligated to pay the full amount of this
contingent consideration and that such amount will be paid in the first quarter
of 2000. In connection with our acquisition of Biosystems we granted to former
shareholders of Biosystems put options covering 578,560 shares of Bacou common
stock issued in connection with that acquisition. By their terms, all options
had an expiration date of September 30, 1999. None of the put options were
exercised and thus all such options expired at the close of business on
September 30, 1999.
In February 1998 we entered into a credit agreement with BNP pursuant to which
the bank made a term loan (the "First BNP Loan") to Bacou USA in the principal
amount of $110.0 million, in connection with our acquisition of Howard Leight.
The First BNP Loan requires quarterly interest payments at an annual rate equal
to three-month LIBOR plus 0.50% and requires principal repayments in equal
quarterly installments over seven years.
In March 1999 we entered into a second credit agreement with BNP pursuant to
which the bank made a term loan (the "Second BNP Loan") to Bacou USA in the
principal amount of $50.0 million, in connection with our acquisition of Perfect
Fit. The Second BNP Loan requires quarterly interest payments at an annual rate
equal to three-month LIBOR plus 0.60% and requires principal repayments in equal
quarterly installments over seven years.
On August 24, 1999, we entered into a credit agreement with BankBoston, N.A. as
agent for participating banks ("BankBoston"). Under this credit agreement
BankBoston established a revolving line of credit facility with a maximum
principal limit of $36.0 million (the "BankBoston Revolving Facility").
Principal outstanding under the BankBoston Revolving Facility will bear interest
at our option at either a) a fixed rate equal to LIBOR plus 0.70%, or b) a
floating rate equal to BankBoston's base rate. According to its terms, the
facility is scheduled for repayment on August 24, 2001.
BankBoston has also agreed to purchase up to $30.0 million of economic
development revenue bonds issued by Rhode Island Industrial Facilities
Corporation (the "RIIFC Revenue Bonds") and in August 1999, we received proceeds
totaling $11.2 million. Principal outstanding under the RIIFC Revenue Bonds
bears interest at fixed rates ranging from LIBOR plus 0.70% to LIBOR plus 0.95%
during its term. Proceeds from the RIIFC Revenue Bonds are being used to fund
the acquisition of our Rhode Island manufacturing facility, the construction of
an addition to such facility as previously discussed, and for the purchase of
machinery and equipment at our Rhode Island facility over a three-year period.
Repayment of principal under the RIIFC Revenue Bonds is due in quarterly
installments of $500,000 beginning February 1, 2002, increasing to $1,500,000
beginning February 1, 2005, with a final payment of any remaining principal due
on August 1, 2006.
In connection with the closing of the BankBoston credit agreement we repaid all
amounts outstanding, totaling $8.9 million, under a revolving credit facility
with Citizens Bank of Rhode Island and terminated that facility.
In connection with our acquisition of Perfect Fit we assumed indebtedness
outstanding under Wilkes County Industrial Development Revenue Bonds in the
principal amount of $6.3 million. Principal outstanding under these revenue
bonds bears interest at a variable rate, equal to approximately 3.4% during
1999. Sinking Fund installments are due on June 1 of each year of its term
through 2005. Principal equal to $735,000 was repaid on June 1, 1999.
We are pursuing a business strategy that includes acquisitions as an important
element. As a result, we may incur additional indebtedness, may be required to
negotiate additional credit facilities or may issue additional common or
preferred stock in order to fund potential future investments, if any, resulting
from our acquisition strategy. Except for cash requirements to fund potential
future acquisitions, we believe that cash flow provided by our operations
together with unused borrowing capacity will be sufficient to fund working
capital requirements, debt service requirements and capital expenditures for the
foreseeable future.
SEASONALITY
Our business has been subject to slight seasonal variations, which we have
attributed to fluctuations in industrial activity and annual weather patterns.
Historically, our sales from October through December have been somewhat lower
than in other periods because of anticipated lower demand in the more inclement
winter months and planned inventory reductions by major distributors. In
addition to seasonality, our business has been variable period to period because
of other factors, including promotional activity undertaken by us in response to
competitive pressures, market demand, production capacity, inventory levels and
other considerations.
YEAR 2000 COMPLIANCE
Many existing computer programs use only two digits to identify a year in the
date field. These programs were designed and developed without consideration of
the impact of the upcoming change in century. If not corrected, many computer
applications could fail or create erroneous results during or before the year
2000.
We initiated a comprehensive project in June 1997 to address our year 2000
compliance. The project consists of four phases including:
o assessment phase -- identification of areas of non-compliance (based
upon a combination of our own analysis and direct communication with
vendors that developed and support our software) and evaluation of
risk;
o planning phase -- development of specific steps to correct
non-compliance, including a timetable;
o implementation phase -- execution of steps developed during the
planning phase; and
o testing phase -- conducting tests to validate year 2000 compliance for
systems in which we are not relying on representations of vendors.
The project considers both our primary information systems (software for all
financial systems, network software and equipment, personal computers and
related software, etc.) and other applications dependent upon embedded software
(manufacturing equipment, telephone systems, security systems, etc.)
We have completed the assessment and planning phases of this project. We have
also completed the implementation phase for all material areas of non-compliance
identified during the assessment and planning phases. The testing phase is
substantially complete, however, testing is expected to continue through the
remainder of 1999.
Results of the assessment phase initially identified applications, principally
at our Survivair and Uvex Safety divisions, which were not year 2000 compliant.
During 1997, we initiated a project to install and implement common software at
all of our business units and we signed a license agreement with J.D. Edwards &
Company for such software in September 1997. Full implementation of this
software was completed at our Survivair division on January 1, 1999, and at our
Uvex Safety division on April 1, 1999. J.D. Edwards & Company has represented
that this software is year 2000 compliant and that its processes used to achieve
year 2000 readiness are certified by the Information Technology Association of
America. We believe that implementation of this software at our Survivair and
Uvex divisions has corrected our material year 2000 deficiencies.
We have incurred costs totaling approximately $3.5 million through September 30,
1999 for implementation of the software at our Survivair and Uvex Safety
business units, and we have no significant remaining costs to complete full
implementation. Except for the cost of training, implementation costs have been
capitalized and will be depreciated over the estimated useful life of the
software. Training is complete and the related cost was expensed as incurred.
Our business may also be dependent upon the systems of critical third-party
vendors, and we have continued to monitor their Year 2000 readiness. Based on
information we have received from these vendors, we believe that any Year 2000
deficiencies in their systems would not represent a material financial or
business risk to us.
We believe that the most reasonably likely worst case result relating to year
2000 would be the failure of certain applications with embedded software, or
failure of third party systems on which our systems rely. Failure of
applications with embedded software could result in temporary disruption to an
aspect of our operations, such as disruption in the operation of certain
manufacturing equipment. Failure of the information systems of a vendor could
result in the temporary interruption of supply of material or services required
by us. Although there can be no assurance that these failures would not
adversely affect our business, we believe the effect of such failure would not
be material. We have developed informal contingency plans relating to any such
failure, which include reliance upon redundant systems, reliance upon manual
systems and reliance upon alternate vendors.
ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
Market risk can result from fluctuations in interest rates, foreign currency
exchange rates, commodity prices or other market exposures. Uncertainties that
are either non-financial or non-quantifiable, such as political, economic, tax,
other regulatory or credit risks are not included in the following assessment of
our market risks.
We believe our only material market risk exposure is the risk of adverse
fluctuations in interest rates. At September 30, 1999, we had debt outstanding
totaling $149.6 million. Interest rates on principally all of this debt are
variable based upon three-month LIBOR. Three-month LIBOR approximated 5.4% at
September 30, 1999.
A 10% adverse change in the prevailing interest rates during 1999 would have
resulted in a reduction of our nine-month 1999 after-tax earnings of
approximately $380,000 or $0.02 per share. We have prepared sensitivity analyses
of our interest rate exposure to assess the future impact of hypothetical
changes in interest rates. Based upon the results of these analyses, we believe
that a 10% adverse change from the September 30, 1999, interest rates would
result in the potential loss of after-tax earnings over the next twelve months
equal to approximately $500,000 or $0.03 per share.
<PAGE>
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibit Index
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
- -------------- ----------------------
Exhibit 4.1 Credit Agreement dated as of August 24, 1999, among Bacou
USA, Inc., Uvex Safety Manufacturing, Inc., BankBoston, N.A.
and KeyBank N.A.
Exhibit 4.2 Bond Purchase Agreement dated as of August 24, 1999, among
Bacou USA, Inc., Uvex Safety Manufacturing, Inc.,
BankBoston, N.A., KeyBank N.A. and Rhode Island Industrial
Facilities Corporation
Exhibit 11 Statement Re: Computation of Per Share Earnings
Exhibit 27 Financial Data Schedule
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: November 12, 1999
BACOU USA, INC.
(Registrant)
/s/ Adrien W. Hebert /s/ Jeffrey T. Brown
- ------------------------------------- ------------------------------------
Adrien W. Hebert Jeffrey T. Brown
Chief Financial Officer Chief Accounting Officer
EXHIBIT 4.1
================================================================================
CREDIT AGREEMENT
AMONG
BACOU USA, INC.,
UVEX SAFETY MANUFACTURING, INC.,
BANKBOSTON, N.A.,
KEYBANK NATIONAL ASSOCIATION,
AND
BANKBOSTON, N.A., AS AGENT
Dated as of August 24, 1999
==============================
<PAGE>
TABLE OF CONTENTS
Page
----
Section l. DEFINITIONS AND RULES OF INTERPRETATION. 1
Section 2. THE REVOLVING LOAN FACILITY 14
Section 3. THE BOND 20
Section 4. CERTAIN GENERAL PROVISIONS 23
Section 5. REPRESENTATIONS AND WARRANTIES 27
Section 6. AFFIRMATIVE COVENANTS OF THE OBLIGORS 34
Section 7. NEGATIVE COVENANTS OF THE OBLIGORS 40
Section 8. CLOSING CONDITIONS 44
Section 9. CONDITIONS TO ALL BORROWINGS 45
Section 10. EVENTS OF DEFAULT; ACCELERATION; ETC. 46
Section 11. SETOFF 49
Section 12. THE AGENT 50
Section 13. EXPENSES 55
Section 14. INDEMNIFICATION 56
Section 15. SURVIVAL OF COVENANTS, ETC. 57
Section 16. ASSIGNMENT AND PARTICIPATION 57
Section 17. NOTICES, ETC. 61
Section 18. MISCELLANEOUS 62
Section 19. COUNTERPARTS 63
Section 20. ENTIRE AGREEMENT, ETC. 63
Section 21. CONSENTS, AMENDMENTS, WAIVERS, ETC. 63
Section 22. DEFEASANCE 64
Section 23. SEVERABILITY 64
Section 24. GOVERNING LAW 64
Section 25. WAIVER OF JURY TRIAL 65
LIST OF EXHIBITS AND SCHEDULES
- ------------------------------
SCHEDULE 1: Banks and Amounts of Commitments 67
----------
SCHEDULE 5.1: Qualification as Foreign Corporation 68
------------
SCHEDULE 5.15: Affiliates and Subsidiaries of Obligors 69
-------------
SCHEDULE 5.19: Existing Indebtedness of Obligors 70
-------------
SCHEDULE 5.23: Trade Names 71
-------------
SCHEDULE 6.16: Permitted Subordinated Indebtedness 72
-------------
SCHEDULE 7.1.3: Permitted Debt 73
--------------
SCHEDULE 7.4: Permitted Contingent Liabilities 74
------------
EXHIBIT A: Form of Note 75
---------
EXHIBIT B: Form of Written Notice of Loan Request 76
---------
EXHIBIT C: Form of Assignment and Acceptance by Bank's
---------- Assignee 78
<PAGE>
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made as of the 24th day of August,
1999, by and among BACOU USA, INC., a Delaware corporation ("Borrower"), UVEX
SAFETY MANUFACTURING, INC., a Delaware corporation ("Uvex"; together with the
Borrower, hereinafter collectively referred to as "Obligors"; and each of the
Obligors is sometimes individually referred to as an "Obligor"), BANKBOSTON,
N.A., a national banking association organized and existing under the laws of
the United States of America, with its head office at 100 Federal Street in
Boston, Massachusetts ("BankBoston"), KEYBANK NATIONAL ASSOCIATION, a national
banking association having an office at One Canal Plaza, Portland, Maine
04101-4035 ("KeyBank"; together with BankBoston, hereinafter collectively
referred to as "Banks"; and each of the Banks is sometimes individually referred
to as a "Bank"), and BANKBOSTON, N.A., a national banking association organized
and existing under the laws of the United States of America, with its head
office at 100 Federal Street in Boston, Massachusetts, as agent ("Agent") for
itself and KeyBank, in the following circumstances:
A. The Obligors have requested that the Banks (1) provide to
the Borrower a revolving line of credit facility with a maximum principal limit
of $36,000,000 (the "Revolving Loan Facility"), and (2) purchase up to
$30,000,000 of an economic development revenue bond to be issued by Rhode Island
Industrial Facilities Corporation.
B. The Obligors, the Banks, and the Agent have agreed, subject
to the terms and conditions set forth below, among other things, to (1) provide
for the Revolving Loan Facility, and (2) provide for the purchase of the
aforesaid economic development revenue bond. In furtherance of the foregoing,
(a) the Obligors, the Banks, and the Agent have agreed to execute and deliver
this Credit Agreement, and (b) the Borrower has agreed to execute and deliver to
the Banks promissory notes each dated of even date herewith in the amounts
indicated on SCHEDULE 1 attached hereto and aggregating the sum of $36,000,000
with respect to the Revolving Loan Facility, which promissory notes will
evidence loans made pursuant to the Revolving Loan Facility.
NOW, THEREFORE, in consideration of the agreements described
above, and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and intending to be legally bound, the Obligors
jointly and severally agree as follows:
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1 DEFINITIONS. The following terms shall have the meanings set forth in
this SECTION 1 or elsewhere in the provisions of this Credit Agreement referred
to below:
AFFILIATE. Any other Person which or who, directly or indirectly, controls
or is controlled by, or is under common control with such Person; PROVIDED,
HOWEVER, natural persons and minority partners of any said Person shall not be
deemed an Affiliate for purposes of this definition. For the purposes of the
preceding sentence, "controls" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or by contract or
otherwise, and in any case shall include direct or indirect ownership
(beneficiary or of record) of, or direct or indirect power to vote, five percent
(5%) or more of the outstanding shares or interests of any class of capital
stock or membership interest of such Person (or in the case of a Person that is
not a corporation or limited liability company, fifty percent (50%) or more of
any class of equity interest).
AGENT'S HEAD OFFICE. The Agent's office located at One BankBoston Plaza,
Providence, Rhode Island 02903, or at such other location as the Agent may
designate from time to time.
AGENT. BankBoston, N.A., acting as agent for the Banks.
AGENT'S SPECIAL COUNSEL. Partridge Snow & Hahn LLP, or such other counsel
as may be approved by the Agent.
ASSIGNMENT AND ACCEPTANCE. See SECTION 16.1.
ASSIGNMENT OF LEASE. The Assignment of Lease Agreement and Pledged Revenues
dated as of August 24, 1999 granted by RIIFC to the Banks.
BACOU, S.A.. Bacou, S.A., a corporation organized under the laws of France.
BANKBOSTON. BankBoston, N.A., a national banking association organized and
existing under the laws of the United States of America, with its head office at
100 Federal Street in Boston, Massachusetts.
BANKS. BankBoston and KeyBank, and any other Person who becomes an assignee
of any rights and obligations of a Bank pursuant to SECTION 16.
BNP. Banque Nationale de Paris.
BOARD. As defined in SECTION 5.13.
BOND. The $30,000,000 Rhode Island Industrial Facilities Corporation
Economic Development Revenue Bond (Uvex Safety Manufacturing, Inc. Project -
1999 Series) issued as of August 24, 1999.
BOND ADVANCE. Any advance made by RIIFC to the Borrower of any portion of
principal of the Bond.
BOND DOCUMENTS. The Bond Purchase Agreement, the Bond, the Mortgage, the
Assignment of Lease, the Guaranties, the Security Agreements, and all other
instruments executed in connection with the Bond.
BOND EXPIRY DATE. August 1, 2006.
BOND PURCHASE AGREEMENT. The Bond Purchase Agreement dated August 24, 1999
by and among the Obligors, the Banks and RIIFC.
BORROWER. As defined in the preamble hereto.
BUSINESS DAY. Any day on which banking institutions in Boston,
Massachusetts or Providence, Rhode Island are open for the transaction of
banking business.
CAPITAL EXPENDITURES. For any period, the aggregate of all expenditures
(whether paid in cash or accrued as liabilities during such period) of any one
or more of the Obligors and their Subsidiaries and Affiliates, which would be
properly classified as capital expenditures in accordance with GAAP (including,
without limitation, expenditures for maintenance and repairs which are
capitalized).
CAPITALIZED LEASE OBLIGATIONS. All lease obligations which have been or
should be, in accordance with GAAP, capitalized on the books of the lessee.
CASH EQUIVALENT INVESTMENTS. Any investment in (a) direct obligations of
the United States or any agency, authority or instrumentality thereof, or
obligations guaranteed by the United States or any agency, authority or
instrumentality thereof, whether or not supported by the full faith and credit
of, a right to borrow from or the ability to be purchased by the United States;
(b) commercial paper rated in the highest grade by a nationally recognized
statistical rating agency or which, if not rated, is issued or guaranteed by any
issuer with outstanding long-term debt rated A or better by any nationally
recognized statistical rating agency; (c) demand and time deposits with, and
certificates of deposit and bankers acceptances issued by, any office of the
Banks or any other bank or trust company which is organized under the laws of
the United States or any state thereof and has capital, surplus and undivided
profits aggregating at least $500,000,000, the outstanding long-term debt of
which or of the holding company of which it is a subsidiary is rated A or better
by any nationally recognized statistical rating agency; (d) any short-term note
which has a rating of MIG-2 or better by Moody's Investors Service Inc. or a
comparable rating from any other nationally recognized statistical rating
agency; (e) any municipal bond or other government obligation (including without
limitation any industrial revenue bond or project note) which is rated A or
better by any nationally recognized statistical rating agency; (f) any other
obligation of any issuer, the outstanding long-term debt of which is rated A or
better by any nationally recognized statistical rating agency; (g) any
repurchase agreement with any financial institution described in clause (c)
above, relating to any of the foregoing instruments and fully collateralized by
such instruments; (h) shares of any open-end diversified investment company that
has its assets invested only in investments of the types described in clauses
(a) through (g) above at the time of purchase and which maintains a constant net
asset value per share; and (i) shares of any open-end diversified investment
company registered under the Investment Company Act of 1940, as amended, which
maintains a constant net asset value per share in accordance with regulations of
the Securities & Exchange Commission, has aggregate net assets of not less than
$50,000,000 on the date of purchase and either derives at least ninety-five
percent (95%) of its gross income from interest on or gains from the sale of
investments of the type described in clauses (a) through (g) above or has at
least eighty-five percent (85%) of the weighted average value of its assets
invested in investments of such types; provided that the purchase of any shares
in any particular investment company shall be limited to an aggregate amount
owned at any one time of $500,000. Each Cash Equivalent Investment shall have a
maturity of less than one (1) year at the time of purchase; provided that the
maturity of any repurchase agreement shall be deemed to be the repurchase date
and not the maturity of the subject security and that the maturity of any
variable or floating rate note subject to prepayment at the option of the holder
shall be the period remaining (including any notice period remaining) before the
holder is entitled to prepayment.
CASH FLOW LEVERAGE RATIO. The ratio of Total Funded Debt to EBITDA. For
purposes of calculating the foregoing ratio, EBITDA will be determined for the
four (4) full fiscal quarters immediately preceding the date of determination or
for the period expressly set forth herein for which the ratio is being computed.
CLOSING DATE. The first date on which the conditions set forth in SECTION 8
and in SECTION 9 have been satisfied and any Loan is to be made.
CODE. The Internal Revenue Code of 1986, as amended from time to time.
COMMITMENTS. Collectively, the Commitment for Bond and the Commitment for
Loans of the Banks.
COMMITMENT FOR BOND. With respect to each Bank, the commitment of such Bank
to purchase a portion of the Bond up to the amount set forth in SCHEDULE 1
hereto.
COMMITMENT FOR LOANS. With respect to each Bank, the commitment of such
Bank to make Loans on a revolving credit basis up to the amount set forth in
SCHEDULE 1 hereto.
COMMITMENT LIMIT FOR BOND. The maximum aggregate sum of $30,000,000.
COMMITMENT LIMIT FOR LOANS. The maximum aggregate sum of $36,000,000.
COMMITMENT PERCENTAGE FOR BOND. With respect to each Bank, the percentage
set forth on SCHEDULE 1 hereto as such Bank's percentage of the aggregate
Commitment for Bond of all of the Banks.
COMMITMENT PERCENTAGE FOR LOANS. With respect to each Bank, the percentage
set forth on SCHEDULE 1 hereto as such Bank's percentage of the aggregate
Commitment for Loans of all of the Banks.
CONVERSION REQUEST. A notice given by the Borrower to the Agent of its
election to convert or continue a Loan as a Floating Rate Loan or a Fixed Rate
Loan in accordance with SECTION 2.5.
CREDIT DOCUMENTS. Collectively, the Loan Documents and the Bond Documents.
DEBT. With respect to any Person at any date, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services, (c) all
obligations of such Person evidenced by notes, Bond, debentures or other similar
instruments, (d) all indebtedness created or arising under any conditional sale
or other title retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of such
property), (e) all Capitalized Lease Obligations of such Person, (f) all
obligations of such Person, contingent or otherwise, as an account party or
applicant under acceptance, letter of credit or similar facilities, (g) all
guarantee obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (f) above, (h) all obligations of the kind
referred to in clauses (a) through (g) above secured by (or for which the holder
of such obligation has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including, without limitation, accounts and contract
rights) owned by such Person, whether or not such Person has assumed or become
liable for the payment of such obligation.
DEBT SERVICE COVERAGE RATIO. The ratio of Operating Cash Flow to the
aggregate of all interest expense, scheduled principal payments, all other
current maturities of long-term indebtedness, and all current maturities of
Capitalized Lease Obligations, paid by the Obligors for the period from the
beginning of the then current fiscal year of the Obligors to the fiscal quarter
ending as at the date of determination.
DOMESTIC LENDING OFFICE. Initially, the office of each Bank designated as
such in SCHEDULE 1 hereto; thereafter, such other office of such Bank, if any,
located within the United States that will be making or maintaining Fixed Rate
Loans.
DRAW(S). As defined in SECTION 2.6(B).
DRAWDOWN DATE. With respect to Loans, the date on which any Loan is made or
is to be made, and the date on which any Loan is converted or continued in
accordance with SECTION 2.5; and with respect to the Bond, the date on which any
Bond Advance is made to the Borrower.
EBITDA. The Obligors' consolidated operating income before interest
expense, taxes, depreciation, and amortization, as calculated in accordance with
GAAP.
ELIGIBLE ASSIGNEE. Any of (a) a commercial bank organized under the laws of
the United States, or any State thereof or the District of Columbia, 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, and having a net worth of at least $100,000,000,
calculated in accordance with GAAP; (c) a commercial bank organized under the
laws for Economic Cooperation and Development (the "OECD"), or a political
subdivision of any such country, 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; and (d) the central bank of any country which is a member
of the OECD.
ENVIRONMENTAL LAWS. Collectively, the Resource Conservation and Recovery
Act ("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), the Federal Clean Water Act of 1977, the
Federal Clean Air Act, the Toxic Substances Control Act, the Hazardous Materials
Transportation Act and all other federal, state and local statutes, regulations,
ordinances, orders and decrees relating to health, safety and the environment.
ERISA. The Employee Retirement Income Security Act of 1974, as amended.
ERISA AFFILIATE. Any Person which is treated as a single employer with any
Obligor under Sections 414(b), (c), (m) or (o) of the Code.
ERISA REPORTABLE EVENT. A reportable event within the meaning of Section
4043(c) of ERISA and the regulations promulgated thereunder with respect to a
Guaranteed Pension Plan as to which the requirement of notice has not been
waived.
EVENT(S) OF DEFAULT. Event(s) of Default means those Event(s) of Default
set forth in SECTION 10.1 hereof.
FIXED RATE. A fixed rate per annum equal to 70 basis points over the LIBOR
Rate.
FIXED RATE LOANS. Loans bearing interest calculated by reference to the
Fixed Rate.
FIXED RATE PORTION(S). Any Portion(s) of a Loan to which a Fixed Rate is
applicable.
FLOATING RATE. The annual rate of interest announced from time to time by
BankBoston at its office in Providence, Rhode Island as its "base rate", as in
effect from time to time. The Floating Rate shall be recalculated by the Banks
whenever the base rate or the federal funds effective rate changes.
FLOATING RATE LOANS. Loans bearing interest calculated by reference to the
Floating Rate.
FLOATING RATE PORTION(S). Any Portion(s) of a Loan to which a Floating Rate
is applicable.
GAAP. Generally accepted accounting principles consistently applied, as
established by the United States Financial Accounting Standards Board as from
time to time in effect.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Obligors or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a
Multi-employer Plan, as defined in Section 3(37) of ERISA.
GUARANTORS. Collectively, Uvex, Bacou USA Safety, Inc., a Delaware
corporation, Perfect Fit Glove Co., Inc., a Delaware corporation, SCHAS
Industries, Inc., a Delaware corporation, and Titmus Optical, Inc., a Delaware
corporation.
GUARANTIES. Collectively, the Guaranties each dated of even date herewith
given by the Guarantors to the Banks, guarantying payment of all payments due to
the Banks under the Credit Documents.
INTEREST PAYMENT DATE. (a) As to any Floating Rate Loan, the last day of
the calendar month which includes the Drawdown Date thereof; and (b) as to any
Fixed Rate Loan, the last day of the applicable Interest Period.
INTEREST PERIOD. With respect to (1) each Loan, (a) initially, the period
commencing on the Drawdown Date of such Loan and ending, (i) for any Floating
Rate Loan, on the last day of the then current calendar month, and (ii) for any
Fixed Rate Loan, on the last day of the applicable period of one (1), two (2),
three (3), six (6), or twelve (12) months; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Loan and ending on the last day (i) for any Floating Rate Loan, of the next
following calendar month, and (ii) for any Fixed Rate Loan, of one of the
periods set forth above, as selected by the Borrower in a Conversion Request;
PROVIDED that the foregoing provisions relating to Interest Periods for Loans
are subject to the following:
(A) if any Interest Period with respect to a Fixed Rate Loan would
otherwise end on a day that is not a LIBOR Business Day, then that Interest
Period shall be extended to the next succeeding LIBOR Business Day unless
the result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on
the immediately preceding LIBOR Business Day;
(B) if any Interest Period with respect to a Floating Rate would end
on a day that is not a Business Day, then that Interest Period shall end on
the next succeeding Business Day;
(C) if the Borrower shall fail to give notice as provided in SECTION
2.5, then the Borrower shall be deemed to have requested a conversion of
the affected Fixed Rate Loan to a Floating Rate Loan on the last day of the
then current Interest Period with respect thereto;
(D) any Interest Period relating to any Fixed Rate Loan that begins on
the last LIBOR Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last LIBOR Business Day of a
calendar month; and
(E) any Interest Period relating to any Fixed Rate Loan that would
otherwise extend beyond the Loan Termination Date shall end on the Loan
Termination Date;
and (2) the Bond, (a) initially, the period commencing on the date of issuance
of the Bond and ending on the last day of the applicable period of one (1), two
(2), three (3), or six (6) months thereafter selected by the Borrower, and (b)
thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to the Bond and ending on the last day of one of the
periods set forth above, as selected by the Borrower; PROVIDED that the
foregoing provisions relating to Interest Periods for the Bond are subject to
the following:
(A) if any Interest Period would otherwise end on a day that is not a
LIBOR Business Day, then that Interest Period shall be extended to the next
succeeding LIBOR Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding LIBOR Business
Day;
(B) any Interest Period that begins on the last LIBOR Business Day of
a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last LIBOR Business Day of a calendar month; and
(C) any Interest Period that would otherwise extend beyond the Bond
Expiry Date shall end on the Bond Expiry Date.
KEYBANK. KeyBank National Association, a national banking association
having an office at One Canal Plaza, Portland, Maine 04101-4035.
LEASE. The Lease Agreement dated as of August 24, 1999 by and between RIIFC
and Uvex.
LETTER OF CREDIT. A direct pay letter of credit issued by the Agent to any
financial institution or bonding authority for the account of the Borrower, or a
commercial standby or trade letter of credit issued by the Agent for the account
of the Borrower.
LETTER OF CREDIT DOCUMENTS. Collectively, each Letter of Credit and
Reimbursement Agreement.
LETTER OF CREDIT PAYMENT DATE. As defined in SECTION 2.6(B).
LIBOR BUSINESS DAY. Any day on which commercial banks are open for
international business (including dealings in U.S. Dollar deposits) in London.
LIBOR LENDING OFFICE. Initially, the office of each Bank designated as such
in SCHEDULE 1 hereto; thereafter, such other office of such Bank, if any, that
shall be making or maintaining Fixed Rate Loans.
LIBOR RATE. A rate per annum, on outstanding principal balances selected by
the Borrower, for an Interest Period, equal to the interest rate determined by
the Banks, fixed through such Interest Period (subject to adjustments for the
LIBOR Reserve Rate) and rounded upwards, if necessary, to the next 1/100 of 1%,
which is equal to the quotient of (a) the rate of interest determined by the
Banks to be the average of the interest rates per annum at which United States
Dollar deposits in immediately available funds are offered on the Telerate
British Bankers Association Interest Settlement Rates Page at approximately
11:00 a.m., London time, on the Business Day prior to the Business Day on which
such Interest Period begins, in an amount approximately equal to the principal
amount of Loans or principal balance thereof selected, or the entire principal
amount of the Bond, for a period of time equal to such Interest Period, and (b)
a number equal to the number one minus the LIBOR Reserve Rate. In the event that
there shall at any time no longer exist a Telerate British Bankers Association
Interest Settlement Rates Page, then the rate determined in (a) above shall be
the rate of interest determined by the Banks to be the average of the interest
rates per annum at which United States Dollar deposits in immediately available
funds are offered to the Banks by first-class banks in the London interbank
deposit market where the Euro and foreign currency and exchange operations in
respect of its LIBOR loans are then being conducted for delivery on the first
day of such Interest Period, in an amount approximately equal to the principal
amount of such Loan or principal balance thereof selected, or of the Bond, as
the case may be, for a period of time equal to such Interest Period. The Fixed
Rate, and correspondingly the actual rate applicable under the Notes and the
Bond, shall be adjusted automatically on and as of the effective date of any
change in the LIBOR Reserve Rate. As used herein, the term "Telerate British
Bankers Association Interest Settlement Rates Page" means the display designated
as Page 3750 on the Telerate System Incorporated Service (or such other page as
may replace such page on such service for the purpose of displaying the rates at
which United States Dollar deposits are offered by leading banks in the London
interbank deposit market).
LIBOR RESERVE RATE. For any day with respect to a Fixed Rate Loan or the
Bond, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Fixed Rate and the rate applicable to the Bond shall be
adjusted automatically on and as of the effective date of any change in the
LIBOR Reserve Rate.
LIEN. Any mortgage, deed of trust, pledge, hypothecation, assignment,
deposit, arrangement, encumbrance, lien (statutory or other) or preference,
priority, security interest, or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any financing lease involving substantially the
same economic effect as any of the foregoing and the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction).
LOAN(S). A Loan or Loans made or to be made by the Banks to the Borrower
pursuant to SECTION 2.
LOAN DOCUMENTS. This Credit Agreement, the Notes, and all other instruments
related to the Loans or the Bond executed concurrently herewith.
LOAN REQUEST. See SECTION 2.4.
LOAN TERMINATION DATE. August 24, 2001.
LOAN YEAR. Each twelve (12) month period between August 24 and August 23 in
each year during the term of this Credit Agreement.
MAJORITY BANKS. As of any date, the Banks holding at least fifty-one
percent (51%) of the outstanding aggregate principal amount of the Notes and the
Bond on such date; and if no such principal is outstanding, the Banks whose
aggregate Commitments for Loans plus Commitments for Bond constitute at least
fifty-one percent (51%) of the aggregate of the Commitment Limit for Loans plus
the Commitment Limit for Bond.
MATERIAL ADVERSE EFFECT. A material adverse effect upon (a) the business,
financial condition, financial performance, properties, prospects or operations
of the Obligors, their respective Subsidiaries and Affiliates taken as a whole,
or (b) the ability of the Obligors to perform their respective Obligations under
the Credit Documents.
MORTGAGE. The Open-End Mortgage, Leasehold Mortgage, and Security Agreement
and Collateral Assignment of Leases and Rents dated as of August 24, 1999
granted by RIIFC and Uvex to the Agent on the Mortgaged Real Estate.
MORTGAGED REAL ESTATE. The real estate located at 10 Thurber Boulevard in
Smithfield, Rhode Island owned by RIIFC and leased to Uvex, which real estate is
subject to the Mortgage.
NOTES. The Notes each dated as of even date herewith made by the Borrower
(1) in favor of BankBoston in the stated principal amount of $22,364,000, and
(2) in favor of KeyBank in the stated principal amount of $13,636,000.
OBLIGATIONS. All indebtedness, obligations and liabilities of the Obligors
and their respective Subsidiaries to any of the Banks and the Agent,
individually or collectively, existing on the date of this Credit Agreement or
arising thereafter, direct or indirect, joint or several, absolute or
contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Credit Agreement or any of the other Loan Documents, or in
respect of any of the Loans made, or any of the Notes or the Bond purchased by
the Banks, or other instruments at any time evidencing any thereof.
OBLIGOR(S). As defined in the preamble hereto.
OPERATING CASH FLOW. The Obligors' collective EBITDA, minus cash taxes,
minus distributions and dividends, and minus nonfinanced Capital Expenditures.
For purposes of the calculation of Operating Cash Flow, nonfinanced Capital
Expenditures shall include Capital Expenditures financed by Loans made under
SECTION 2.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
PERSON. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
PORTION OF A LOAN. Any portion of any Loan designated by the Borrower, to
which a Type of interest becomes applicable by choice of the Borrower.
REAL ESTATE. Collectively, the Mortgaged Real Estate and all other real
estate in which the Obligors, or either of them, have an interest of any type,
whether in fee or leasehold.
RECORD. The grid attached to a Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note; and any record maintained by
any Bank with respect to the portion of the Bond purchased by such Bank.
REFERENCE BANK. BankBoston.
REIMBURSEMENT AGREEMENT. A Reimbursement Agreement between the Borrower and
the Agent (and/or the Agent and the Banks) providing for reimbursement of any
Draws honored under a Letter of Credit.
REVOLVING LOAN FACILITY. As defined in the preamble hereto.
RIIFC. Rhode Island Industrial Facilities Corporation.
RIIFC LEASE. The Lease Agreement dated as of August 24, 1999 by and between
RIIFC as lessor and Uvex as lessee, relating to the Mortgaged Real Estate.
SECURITY AGREEMENT. The Security Agreement dated of even date herewith by
and among the Obligors, RIIFC, and the Agent, securing all of the Obligors'
respective obligations to the Banks under the Bond Documents.
SECURITY DOCUMENTS. The Security Agreement, the Mortgage, and the
Assignment of Lease.
SUBORDINATED DEBT. All Debt owed by the Obligors to any officer or
shareholder or other creditor of any of the Obligors at all times during the
respective terms of the Loans and the Bond, but shall not include compensation
paid and reimbursement of expenses made to any such officer or shareholder of
such Obligors. Such Subordinated Debt is further described in SECTION 6.16
hereof.
SUBSIDIARY. Any entity in which any Obligor owns securities having ordinary
voting power to elect a majority of the board of directors of such entity, or in
which any Obligor owns other ownership interests ordinarily constituting a
majority voting interest, or which entity is directly or indirectly owned or
controlled by any Obligor, or by one or more of any Obligor's subsidiaries, or
by any Obligor and one or more of any Obligor's subsidiaries.
TOTAL FUNDED DEBT. The aggregate of all indebtedness of the Obligors
outstanding to any party, including, without limitation, the Banks, under any
loan or credit facility as of any date of determination.
TYPE. As to any Loan, or portion thereof, the designation of whether a Base
Rate or a Fixed Rate is applicable to all or such portion of such Loan.
UCC. The Uniform Commercial Code.
1.2 RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to time in
accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by GAAP applied on a consistent basis by the accounting entity
to which they refer.
(f) The words "include", "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by generally accepted
accounting principles, which terms are defined in the Uniform Commercial Code as
in effect in the State of Rhode Island, have the meanings assigned to them
therein.
(h) Reference to a particular "Section" refers to that Section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import
shall refer to this Credit Agreement as a whole and not to any particular
section or subdivision of this Credit Agreement.
1.3 ACCOUNTING PRINCIPLES.
1.3.1 As used in this Credit Agreement, GAAP shall be established on
the date a relevant computation or determination is to be made or the date of
relevant financial statements, as the case may be.
1.3.2 Except as otherwise provided in this Credit Agreement, all
computations and determinations as to accounting or financial matters shall be
made, and all financial statements to be delivered pursuant to this Credit
Agreement shall be prepared, in accordance with GAAP (including principles of
consolidation where appropriate), and all accounting or financial terms shall
have the meanings ascribed to such terms by GAAP.
SECTION 2. THE REVOLVING LOAN FACILITY.
2.1 COMMITMENT TO LEND; ISSUANCE OF LETTERS OF CREDIT. Subject to the terms
and conditions set forth in this Credit Agreement, each of the Banks severally
agrees to lend to the Borrower, upon notice by the Borrower to the Agent given
in accordance with SECTION 2.4, such sums as are requested by the Borrower, up
to a maximum amount equal to such Bank's Commitment for Loans, and in any event,
with respect to all Banks, up to an aggregate amount not exceeding the
Commitment Limit for Loans. The Loans shall be made PRO RATA in accordance with
each Bank's Commitment Percentage for Loans. Each request for a Loan hereunder
shall constitute a representation and warranty by the Borrower that the
conditions set forth in SECTION 8 and SECTION 9 have been satisfied on the date
of such request, and that all representations and warranties set forth in
SECTION 5 are true and accurate in all material respects as of the date of such
request (except those representations and warranties which are limited to a
specific date by the express terms thereof). In addition to the Banks'
agreements to make Loans, the Banks may from time to time at their discretion
issue for the Borrower's account direct pay letters of credit supporting
industrial development bond indebtedness of the Borrower (or an entity of which
the Borrower is the successor), or standby or trade letters of credit, in any
event in form acceptable to the Banks, provided that the aggregate principal
amount of all Loans outstanding hereunder, plus the face amount of all Letters
of Credit issued hereunder, shall not exceed, at any one time, the Commitment
Limit for Loans. The pricing of the Letters of Credit shall be set by the Agent
and the Banks at the time of issue, and shall be payable upon issuance thereof
and on each anniversary date of such issuance, but shall be refundable on a pro
rated basis to the extent the stated amount of any Letter of Credit is reduced
or any Letter of Credit expires during any period covered by an annual prepaid
fee. Draws and repayments on a Letter of Credit shall be governed by a
Reimbursement Agreement in form and substance satisfactory to the Banks. All
Letters of Credit issued by the Banks hereunder shall require the payment,
immediately prior to and as a condition precedent to the issuance of the Letter
of Credit, of all of the Agent's and the Banks' standard letter of credit fees
and charges.
2.2 THE NOTES. The Loans, and the reimbursement obligations of the Borrower
on account of any Draw honored on a Letter of Credit, shall be evidenced by
separate promissory notes of the Borrower (each a "Note" and collectively
"Notes"), each dated as of the Closing Date and completed with appropriate
insertions. One Note shall be payable to the order of each Bank in a principal
amount equal to such Bank's Commitment for Loans. The Borrower irrevocably
authorizes each Bank to make or cause to be made, at or about the time of the
Drawdown Date of any Loan or Draw honored on any Letter of Credit or at the time
of receipt of any payment of principal on such Bank's Note, an appropriate
notation on such Bank's Record reflecting the making of such Loan, the honoring
of such Letter of Credit Draw, or (as the case may be) the receipt of such
payment. The outstanding amount of the Loans and Letter of Credit Draws set
forth on such Bank's Record shall be PRIMA FACIE evidence of the principal
amount thereof owing and unpaid to such Bank, but the failure to record, or any
error in so recording, any such amount on such Bank's Record shall not limit or
otherwise affect the obligations of the Borrower hereunder or under any Note to
make payments of principal of or interest on any Note when due.
2.3 INTEREST ON LOANS.
(a) Each Floating Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at a fluctuating rate equal to the Floating
Rate. The interest rate of each Floating Rate Loan shall change whenever the
Floating Rate changes, and such change shall be in accordance with each change
in the Floating Rate.
(b) Each Fixed Rate Loan shall bear interest for the period commencing
with the Drawdown Date thereof and ending on the last day of the Interest Period
with respect thereto at the Fixed Rate determined for such Interest Period.
(c) The Borrower promises to pay interest on each Loan in arrears on
each Interest Payment Date with respect thereto.
(d) If the Borrower fails to select a new Interest Period for a
Portion of a Loan prior to the expiration of the then current Interest Period,
then such Portion of a Loan shall be deemed to be, and shall thereupon become, a
Floating Rate Loan upon the expiration of such then current Interest Period.
2.4 REQUESTS FOR LOANS. The Borrower shall give to the Agent written notice
in the form of EXHIBIT B hereto (or telephonic notice confirmed in a writing in
the form of EXHIBIT B hereto) of the Loan requested hereunder (a "Loan Request")
no less than two (2) LIBOR Business Days prior to the proposed Drawdown Date of
any Fixed Rate Loan, no notice of a Floating Rate Loan being required hereunder.
The notice shall specify (i) the principal amount of the Loan requested, (ii)
the proposed Drawdown Date of such Loan, (iii) the Interest Period for such Loan
and (iv) the Type of such Loan. Promptly upon receipt of any such notice, the
Agent shall notify each of the applicable Banks thereof. Each Loan Request shall
be irrevocable and binding on the Borrower and shall obligate the Borrower to
accept the Loan requested from the applicable Banks on the proposed Drawdown
Date.
2.5 CONVERSION OPTIONS.
(a) The Borrower may elect from time to time to convert the Type of
interest applicable to any outstanding Loan, or any Portion of a Loan, to
another Type, PROVIDED that (i) with respect to any such conversion of a
Floating Rate Loan or a Floating Rate Portion to a Fixed Rate Loan or a Fixed
Rate Portion, the Borrower shall give the Agent at least two (2) LIBOR Business
Days' prior written notice of such election; (ii) with respect to any such
conversion of a Fixed Rate Loan or Fixed Rate Portion into a Floating Rate Loan
or a Floating Rate Portion, such conversion shall only be made on the last day
of the Interest Period with respect thereto and no prior notice of such election
shall be required; and (iii) no Loan or Portion of a Loan may be converted into
a Fixed Rate Loan or Fixed Rate Portion when any Default or Event of Default has
occurred and is continuing. On the date on which such conversion is being made
each Bank shall take such action as is necessary to transfer its Commitment
Percentage for Loans of such Loans to its Domestic Lending Office or its LIBOR
Lending Office, as the case may be. Loans and any Portion of a Loan of any Type
may be converted into a Loan and Portions of Loans of another Type as provided
herein, PROVIDED that any partial conversion shall be in an aggregate principal
amount of $100,000 or a whole multiple thereof. Each Conversion Request relating
to the conversion of a Floating Rate Loan or Floating Rate Portion to a Fixed
Rate Loan or Fixed Rate Portion shall be irrevocable by the Borrower.
(b) Any Loan or Portion of Loans of any Type may be continued as a
Loan or Portion of Loans of the same Type upon the expiration of an Interest
Period with respect thereto upon compliance by the Borrower with the notice
provisions contained in SECTION 2.5(A); PROVIDED that no Fixed Rate Loan or
Fixed Rate Portion may be continued as such when any Default or Event of Default
has occurred and is continuing, but shall be automatically converted to a
Floating Rate Loan or Floating Rate Portion, as the case may be, on the last day
of the first Interest Period relating thereto ending during the continuance of
any Default or Event of Default of which the Agent has actual knowledge. The
Agent shall notify the Banks promptly when any such automatic conversion
contemplated by this SECTION 2.5(B) is scheduled to occur.
(c) Any conversion to or from Fixed Rate Loans or Fixed Rate Portion
shall be in such amounts and be made pursuant to such elections so that, after
giving effect thereto, the aggregate principal amount of all Fixed Rate Loans
and Fixed Rate Portions having the same Interest Period shall not be less than
$100,000 or a whole multiple of $100,000 in excess thereof.
2.6 FUNDS FOR LOANS AND LETTER OF CREDIT DRAWS.
(a) With respect to the Loans:
(i) Not later than 1:00 p.m. (Providence time) on the proposed
Drawdown Date of any Loans, each of the Banks will make available to the Agent,
at the Agent's Head Office, in immediately available funds, an amount equal to
such Bank's Commitment Percentage for Loans multiplied by the total amount of
the requested Loans. Upon receipt from each Bank of such amount, and upon
receipt of the documents required by SECTION 8 and SECTION 9 and the
satisfaction of the other conditions set forth therein, to the extent
applicable, the Agent will make available to the Borrower the aggregate amount
of such Loans made available to the Agent by the Banks. The failure or refusal
of any Bank to make available to the Agent at the aforesaid time and place on
any Drawdown Date the amount of its Commitment Percentage for Loans of the
requested Loans shall not relieve any other Bank from its several obligation
hereunder to make available to the Agent the amount of such other Bank's
Commitment Percentage for Loans of any requested Loans.
(ii) The Agent may, unless notified to the contrary by any Bank
prior to a Drawdown Date, assume that such Bank has made available to the Agent
on such Drawdown Date the amount of such Bank's Commitment Percentage for Loans
of the Loans to be made on such Drawdown Date, and the Agent may (but it shall
not be required to), in reliance upon such assumption, make available to the
Borrower a corresponding amount. If any Bank makes available to the Agent such
amount on a date after such Drawdown Date, such Bank shall pay to the Agent on
demand an amount equal to the product of (i) the average computed for the period
referred to in clause (iii) below, of the weighted average interest rate paid by
the Agent for federal funds acquired by the Agent during each day included in
such period, TIMES (ii) the amount of such Bank's Commitment Percentage for
Loans of such Loans, TIMES (iii) a fraction, the numerator of which is the
number of days that elapse from and including such Drawdown Date to the date on
which the amount of such Bank's Commitment Percentage for Loans of such Loans
shall become immediately available to the Agent, and the denominator of which is
360. A statement of the Agent submitted to such Bank with respect to any amounts
owing under this paragraph shall be PRIMA FACIE evidence of the amount due and
owing to the Agent by such Bank. If the amount of such Bank's Commitment
Percentage for Loans of such Loans is not made available to the Agent by such
Bank within three (3) Business Days following such Drawdown Date, then the Agent
shall be entitled to recover such amount from the Borrower on demand and to
retain such amount, with interest thereon at the rate per annum applicable to
the Loans made on such Drawdown Date.
(b) With respect to a Letter of Credit, the Banks agree to, and by
their execution of this Credit Agreement do hereby, purchase a participation
interest in each Letter of Credit and in the Letter of Credit Documents in the
same percentage interest as their respective Commitment Percentage for Loans.
(i) Upon presentment of a request for a draw upon a Letter of
Credit (a "Draw"), the Agent shall promptly notify all Banks of its receipt of
such request, and the Agent's proposed payment date for such draw (the "Letter
of Credit Payment Date"). Not later than 1:00 p.m. (Providence time) on the
proposed Letter of Credit Payment Date, each of the Banks will make available to
the Agent, at the Agent's Head Office, in immediately available funds, the
amount of such Bank's Commitment Percentage for Loans of the amount of the
requested Draw. Upon receipt from each Bank of such amount, and upon
satisfaction of all requirements for a Draw under the Letter of Credit
Documents, to the extent applicable, the Agent shall pay the Draw on the Letter
of Credit in accordance with its terms. The failure or refusal of any Bank to
make available to the Agent at the aforesaid time and place on any Letter of
Credit Payment Date the amount of its Commitment Percentage for Loans of the
requested Draw shall not relieve any other Bank from its several obligation
hereunder to make available to the Agent the amount of such other Bank's
Commitment Percentage for Loans of any requested Draw.
(ii) The Agent may, unless notified to the contrary by any Bank
prior to a Letter of Credit Payment Date, assume that such Bank has made
available to the Agent on such Letter of Credit Payment Date the amount of such
Bank's Commitment Percentage for Loans of the Draw to be made on such Letter of
Credit Payment Date, and the Agent may (but it shall not be required to), in
reliance upon such assumption, make payment to the beneficiary under the Letter
of Credit. If any Bank makes available to the Agent such amount on a date after
such Letter of Credit Payment Date, such Bank shall pay to the Agent on demand
an amount equal to the product of (i) the average computed for the period
referred to in clause (iii) below, of the weighted average interest rate paid by
the Agent for federal funds acquired by the Agent during each day included in
such period, TIMES (ii) the amount of such Bank's Commitment Percentage for
Loans of such Draw, TIMES (iii) a fraction, the numerator of which is the number
of days that elapse from and including such Drawdown Date to the date on which
the amount of such Bank's Commitment Percentage for Loans of such Draw shall
become immediately available to the Agent, and the denominator of which is 360.
A statement of the Agent submitted to such Bank with respect to any amounts
owing under this paragraph shall be PRIMA FACIE evidence of the amount due and
owing to the Agent by such Bank. If the amount of such Bank's Commitment
Percentage for Loans of such Draw is not made available to the Agent by such
Bank within three (3) Business Days following such Letter of Credit Payment
Date, then the Agent shall be entitled to recover such amount from the Obligors
on demand and to retain such amount, with interest thereon at the rate per annum
applicable to such Draw under the Letter of Credit Documents on such Letter of
Credit Payment Date.
(iii) Any reimbursement of a Draw, or any proceeds from any
collateral securing the Letter of Credit, received by Agent pursuant to the
Letter of Credit Documents, shall be allocated among the Banks, in proportion,
as nearly as practicable, to the aggregate amount of each Bank's then
outstanding Draws under the Letter of Credit, with adjustments to the extent
practicable to equalize any prior payments or repayments not exactly in
proportion.
(iv) The Agent is authorized to take such action under the Letter
of Credit Documents on behalf of each of the Banks and to exercise all of the
rights and powers granted to the Lender, as defined in the Letter of Credit
Documents, to the same extent and with the same power and authority as set forth
in this Credit Agreement and the other Credit Documents with respect to the
Loans, and the Letter of Credit Documents are hereby amended to the extent
necessary to incorporate these provisions.
2.7 PURPOSE OF LOANS AND LETTERS OF CREDIT. The Borrower shall use all
Loans to repay existing indebtedness, to provide working capital for the
Borrower's business operations, for the issuance of banker's acceptances, and
for the issuance of standby and trade letters of credit. The Borrower shall use
the Letters of Credit to enable the Borrower to substitute existing letters of
credit supporting bond indebtedness of the Borrower to the issuer of industrial
development revenue bonds with a Letter of Credit issued by the Agent for the
Borrower's benefit.
2.8 LIMITATION ON LOANS. The Borrower acknowledges and agrees that it may
not borrow Loans which, when added to outstanding Loans, aggregate more than the
then existing Commitment Limit for Loans at any one time outstanding.
2.9 TERMINATION. The Borrower promises to pay on the Loan Termination Date,
and there shall become absolutely due and payable on the Loan Termination Date,
all of the Loans outstanding on such date, together with any and all accrued and
unpaid interest thereon.
2.10 MANDATORY REPAYMENTS OF LOANS. If at any time the sum of the
outstanding amount of the Loans exceeds the Commitment Limit for Loans, then the
Borrower shall, within five (5) days after written request therefor by the
Agent, pay the amount of such excess to the Agent for the respective accounts of
the Banks for application to the Loans. Each prepayment of Loans shall be
allocated among the Banks, in proportion, as nearly as practicable, to the
respective unpaid principal amount of each Bank's Note, with adjustments to the
extent practicable to equalize any prior payments or repayments not exactly in
proportion.
2.11 OPTIONAL REPAYMENTS OF LOANS. The Borrower shall have the right, at
its election, to repay the outstanding amount of all Floating Rate Loans and
Floating Rate Portions, as a whole or in part, at any time without penalty or
premium. In the event that the Borrower, whether voluntarily or involuntarily as
a result of any Bank making demand for payment of a Note or acceleration or for
any other reason, prepays all or any part of any Fixed Rate Loan or Fixed Rate
Portion prior to the expiration of the Interest Period applicable thereto, then
the Borrower shall pay, along with any such prepayment, a prepayment premium
calculated by each applicable Bank based upon any fees and penalties charged to
each applicable Bank because of such prepayment made prior to the expiration
date of the applicable Interest Period.
In any event, the Borrower shall give the Agent, no later than 10:00 a.m.,
Providence time, written notice of any proposed prepayment pursuant to this
SECTION 2.11 of Floating Rate Loans or Floating Rate Portions, and notice of any
proposed prepayment pursuant to this SECTION 2.11 of Fixed Rate Loans or Fixed
Rate Portions, in each case specifying the proposed date of prepayment of Loans
and the principal amount to be prepaid. Each such repayment or prepayment shall
be applied, in the absence of instruction by the Borrower, first to interest
accrued and remaining unpaid on Floating Rate Loans and Floating Rate Portions,
next to interest accrued and remaining unpaid on Fixed Rate Loans and Fixed Rate
Portions, next to the principal of Floating Rate Loans and Floating Rate
Portions, and then to the principal of Fixed Rate Loans and Fixed Rate Portions.
Each partial prepayment shall be allocated among the Banks, in proportion, as
nearly as practicable, to the respective unpaid accrued and unpaid interest on,
and principal amount of, each Bank's Note, with adjustments to the extent
practicable to equalize any prior repayments not exactly in proportion.
2.12 AUTHORIZED DEBIT. The Borrower hereby authorizes and directs the Agent
to debit the Borrower's demand deposit account number 27564596 with Agent for
the amount of all sums coming due under the Notes, on the date when due. Nothing
contained herein shall relieve the Borrower of its obligations to make payments
under the Notes as and when they become due, and if the Agent is unable to debit
any amount when it becomes due because of insufficient funds in the designated
account, then the Borrower shall be responsible for immediately paying the
applicable amount to the Agent. Any failure by the Borrower to pay such amount
when due shall constitute an Event of Default under SECTION 10.1 hereof.
2.13 AUTHORIZED OFFICERS OF THE BORROWER. The Borrower shall notify the
Agent in writing of the names of the officers and employees authorized to
request Loans and to request a conversion/continuation of any Loan, and shall
provide the Agent with a specimen signature of each such authorized officer. The
Agent and each of the Banks shall be entitled to rely conclusively on such
officer's or employee's authority to request such Loan or such
conversion/continuation until the Agent receives written notice to the contrary.
Neither the Agent nor any of the Banks shall have any duty to verify the
authenticity of the signature appearing on any written notice of borrowing or
notice of conversion/continuation which it believes in good faith and absent
gross negligence has been signed or presented by the proper party or parties
and, with respect to an oral request for such a Loan or such conversion/
continuation, neither the Agent nor any of the Banks or the Agent shall have any
duty to verify the identity of any Person representing himself or herself as one
of the officers or employees authorized to make such request on behalf of the
Borrower. Neither the Agent nor any Bank shall incur any liability to the
Borrower in acting upon any telephonic notice referred to above which the Agent
believes in good faith and absent gross negligence to have been given by a duly
authorized officer or other person authorized to borrow on behalf of the
Borrower or for otherwise acting in good faith under this SECTION 2.13.
SECTION 3. THE BOND.
3.1 COMMITMENT TO PURCHASE THE BOND. Subject to the terms and conditions
set forth in this Credit Agreement, each of the Banks severally agrees to
purchase its portion of the Bond, by funding each Bond Advance from time to time
from the date hereof until February 1, 2002 pursuant to the Bond Advance
Schedule attached hereto as SCHEDULE 3.1, up to a maximum aggregate of such Bond
Advances equal to such Bank's Commitment for Bond, and in any event, with
respect to all Banks, up to an aggregate amount not exceeding the Commitment
Limit for Bond. The purchases will be made PRO RATA in accordance with each
Bank's Commitment Percentage for Bond. The making of each Bond Advance shall
constitute a representation and warranty by the Obligors that the conditions set
forth in SECTION 8 and SECTION 9 have been satisfied on the date of such Bond
Advance.
3.2 THE BOND. The Bond shall be issued in form and substance satisfactory
to the Banks.
3.3 INTEREST ON THE BOND. The Bond shall bear interest for the period
commencing with the issuance date thereof and continuing until repayment or
redemption thereof. Principal outstanding during the period (a) from the date
hereof until July 31, 2000, regardless of when advanced, shall bear interest at
a rate per annum of 87.5 basis points over the LIBOR Rate determined for the
applicable Interest Period(s); (b) from August 1, 2000 until January 31, 2002,
regardless of when advanced, shall bear interest at a rate per annum of 70 basis
points over the LIBOR Rate determined for the applicable Interest Period(s); and
(c) from February 1, 2002 until payment of the Bond, regardless of when
advanced, shall bear interest at a rate per annum of 95 basis points over the
LIBOR Rate determined for the applicable Interest Period(s).
3.4 FUNDS FOR BOND PURCHASE. (a) Not later than 1:00 p.m. (Providence time)
on the proposed Drawdown Date of any Bond Advance, each of the Banks will make
available to the Agent, at the Agent's Head Office, in immediately available
funds, the amount of such Bank's Commitment Percentage for Bond of the Bond
Advance to be made by RIIFC and funded by the Banks. Upon receipt from each Bank
of such amount, and upon receipt of the documents required by SECTION 8 and
SECTION 9 and the satisfaction of the other conditions set forth therein, to the
extent applicable, the Agent will fund the Bond Advance being made by RIIFC in
an amount equal to the funds made available to the Agent by the Banks. The
failure or refusal of any Bank to make available to the Agent at the aforesaid
time and place on any date of a Bond Advance the amount of its Commitment
Percentage for Bond of the Bond Advance to be made shall not relieve any other
Bank from its several obligation hereunder to make available to the Agent the
amount of such other Bank's Commitment Percentage for Bond of any such Bond
Advance.
(b) The Agent may, unless notified to the contrary by any Bank prior
to a Bond Advance, assume that such Bank has made available to the Agent on such
Bond Advance date the amount of such Bank's Commitment Percentage for Bond of
the Bond Advance to be made on such date, and the Agent may (but it shall not be
required to), in reliance upon such assumption, make available to RIIFC a
corresponding amount. If any Bank makes available to the Agent such amount on a
date after such date, then such Bank shall pay to the Agent on demand an amount
equal to the product of (i) the average computed for the period referred to in
clause (iii) below, of the weighted average interest rate paid by the Agent for
federal funds acquired by the Agent during each day included in such period,
TIMES (ii) the amount of such Bank's Commitment Percentage for Bond of such Bond
Advance made, TIMES (iii) a fraction, the numerator of which is the number of
days that elapse from and including such issuance date to the date on which the
amount of such Bank's Commitment Percentage for Bond of such Bond Advance shall
become immediately available to the Agent, and the denominator of which is 360.
A statement of the Agent submitted to such Bank with respect to any amounts
owing under this paragraph shall be PRIMA FACIE evidence of the amount due and
owing to the Agent by such Bank. If the amount of such Bank's Commitment
Percentage for Bond of such Bond Advance is not made available to the Agent by
such Bank within three (3) Business Days following such date, then the Agent
shall be entitled to recover such amount from the Borrower on demand and to
retain such amount, with interest thereon at the rate per annum applicable to
the Bond Advance made on such date.
3.5 PURPOSE OF BOND. The Obligors shall use all proceeds from issuance and
sale of the Bond to (1) finance Uvex's acquisition of the Mortgaged Real Estate,
and expansion of Uvex's facility located thereon, and (2) to fund the Obligors'
capital expenditures.
3.6 SECURITY AGREEMENT. In consideration of the Bond purchased by the Banks
from RIIFC, the Obligors agree to grant to the Banks, concurrently herewith, a
first priority security interest in all machinery and equipment purchased by the
Obligors from the proceeds of the Bond (whether by virtue of direct payment or
reimbursement for prior payment), all as more particularly described in the
Security Agreement, which Security Agreement shall be security for all of the
obligations of the Obligors to the Banks and the Agent in connection with the
Bond, and the provisions of which are hereby incorporated herein by reference
having the same force and effect as if set forth herein.
3.7 MORTGAGE. In consideration of the Bond purchased by the Banks from
RIIFC, the Obligors agree to grant, and agree to cause RIIFC to grant, to the
Banks and the Agent, concurrently herewith, a first priority mortgage lien and
leasehold mortgage lien in and on the Mortgaged Real Estate, including without
limitation all fixtures and machinery related thereto, all as more particularly
described in the Mortgage, which Mortgage shall be security for all of the
obligations of the Obligors to the Banks and the Agent in connection with the
Bond, and the provisions of which are hereby incorporated herein by reference
having the same force and effect as if set forth herein.
3.8 ASSIGNMENT OF LEASE. In consideration of the Bond purchased by the
Banks from RIIFC, the Obligors agree to grant, and to cause RIIFC to grant, to
the Banks and the Agent, concurrently herewith, a first priority assignment of
all Obligors' rights in the RIIFC Lease, all as more particularly described in
the Assignment of Lease, which Assignment of Lease shall be security for all of
the obligations of the Obligors to the Banks and the Agent in connection with
the Bond, and the provisions of which are hereby incorporated herein by
reference having the same force and effect as if set forth herein.
SECTION 4. CERTAIN GENERAL PROVISIONS.
4.1 ANNUAL ADMINISTRATIVE FEE. The Obligors shall pay to the Agent on the
Closing Date, and on each successive annual anniversary of the Closing Date
thereafter, an administrative fee of $25,000 per year for administering the
Loans and the Bond, payable in advance, which fee is non-refundable, and shall
be deemed to have been earned by the Agent in full upon receipt thereof.
4.2 FUNDS FOR PAYMENTS.
(a) All payments of principal, interest, commitment fees, and any
other amounts due hereunder or under any of the other Credit Documents shall be
made to the Agent, for the respective accounts of the applicable Banks and the
Agent, at the Agent's Head Office or at such other location in the Providence,
Rhode Island area that the Agent may from time to time designate, in each case
in immediately available funds. All such payments shall be made in immediately
available funds by 1:00 P.M. (Providence, Rhode Island time) on a Business Day.
Any funds received after that time shall be credited on the next following
Business Day.
(b) All payments by the Obligors hereunder and under any of the other
Credit Documents shall be made without setoff or counterclaim and free and clear
of and without deduction for any taxes, levies, imposts, duties, charges, fees,
deductions, withholdings, compulsory loans, restrictions or conditions of any
nature now or hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless the Obligors are
compelled by law to make such deduction or withholding. If any such obligation
is imposed upon the Obligors with respect to any amount payable by them
hereunder or under any of the other Credit Documents, then the Obligors will pay
to the Agent, for the account of the applicable Banks or (as the case may be)
the Agent, on the date on which such amount is due and payable hereunder or
under any of the other Credit Documents, such additional amount in Dollars as
shall be necessary to enable the applicable Banks or the Agent to receive the
same net amount which such Banks or the Agent would have received on such due
date had no such obligation been imposed upon such Obligor. The Obligors 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 the
Obligors hereunder or under such other Credit Documents.
4.3 COMPUTATIONS. All computations of interest on the Loans and the Bond,
and of commitment fees or other fees, shall, unless otherwise expressly provided
herein, be based on a 360-day year and be paid for the actual number of days
elapsed. Except as otherwise provided in the definition of the term "Interest
Period" with respect to the Bond, Fixed Rate Loans and any Fixed Rate Portion,
whenever a payment hereunder or under any of the other Credit Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and interest shall accrue during
such extension. The outstanding amount of the Loans and the Bond as reflected on
the Records from time to time shall be considered correct and binding on the
Obligors, absent manifest error.
4.4 INABILITY TO DETERMINE LIBOR RATE. In the event that, prior to the
commencement of any Interest Period relating to any Fixed Rate Loan or Fixed
Rate Portion, or to the Bond, the Agent shall determine that adequate and
reasonable methods do not exist for ascertaining the LIBOR Rate that would
otherwise serve as the basis for determining the rate of interest to be
applicable to any Fixed Rate Loan or Fixed Rate Portion, or to the Bond, during
any Interest Period, the Agent shall forthwith give notice of such determination
(which shall be conclusive and binding on the Obligors and the Banks) to the
Obligors and the Banks. In such event (a) any Loan Request or Conversion Request
with respect to Fixed Rate Loans and any Fixed Rate Portion shall be
automatically withdrawn and shall be deemed a request for a Floating Rate Loan
or Floating Rate Portion, as the case may be, (b) each Fixed Rate Loan and Fixed
Rate Portion will automatically, on the last day of the then current Interest
Period relating thereto, become a Floating Rate Loan or a Floating Rate Portion,
as the case may be, (c) the interest rate applicable to the Bond, and (d) the
obligations of the Banks to make Fixed Rate Loans and Fixed Rate Portions shall
be suspended until the Agent determines that the circumstances giving rise to
such suspension no longer exist, whereupon the Agent shall so notify the
Obligors and the Banks.
4.5 ILLEGALITY. Notwithstanding any other provisions herein, if any present
or future law, regulation, treaty or directive, or in the interpretation or
application thereof, shall make it unlawful for any Bank to make or maintain
Fixed Rate Loans or Fixed Rate Portions, or to provide or maintain fixed rates
of interest on the Bond, such Bank shall forthwith give notice of such
circumstances to the Obligors and the other Banks and thereupon (a) the
commitment of such Bank to make Fixed Rate Loans and Fixed Rate Portions or
convert Loans or a Portion of a Loan of another Type to Fixed Rate Loans and
Fixed Rate Portions, and to provide or maintain fixed rates of interest on the
Bond, shall forthwith be suspended, and (b) such Bank's Loans or any Portion of
a Loan then outstanding as Fixed Rate Loans or a Fixed Rate Portion, if any, or
the Bond, if then outstanding, shall be converted automatically to Floating Rate
Loans or a Floating Rate Portion, on the last day of each Interest Period
applicable to such Fixed Rate Loans or Fixed Rate Portions or within such
earlier period as may be required by law, and an alternative fixed rate shall be
applied to the Bond. The Obligors hereby agree to pay the Agent promptly for the
account of such Bank, upon demand by such Bank, any additional amounts necessary
to compensate such Bank for any costs incurred by such Bank in making any
conversion in accordance with this SECTION 4.5, including any interest or fees
payable by such Bank to lenders of funds obtained by it in order to make or
maintain its Fixed Rate Loans and Fixed Rate Portions hereunder, or its fixed
rate on the Bond.
4.6 ADDITIONAL COSTS, ETC. If any change in any applicable law, or
enactment of any new law, which expression, as used herein, includes statutes,
rules and regulations thereunder and interpretations thereof by any competent
court or by any governmental or other regulatory body or official charged with
the administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank or the Agent by any central bank or other fiscal,
monetary or other authority, shall:
4.6.1 subject any Bank or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to the
principal amount of or interest on any Obligations, or fees, expenses,
indemnities or other amounts payable to any Bank or the Agent under this Credit
Agreement, the other Credit Documents, such Bank's Commitment for Loans, such
Bank's Commitment for Bond, the Loans, the Bond (other than taxes based upon or
measured by the income or profits or franchise or similar business licensing
taxes of such Bank or the Agent), or
4.6.2 materially change the basis of taxation (except for changes in
taxes on income or profits or franchise or similar business licensing taxes) of
payments to any Bank of the principal of or the interest on any Loan or the Bond
or any other amounts payable to any Bank or the Agent under this Credit
Agreement or any of the other Credit Documents, or
4.6.3 impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements against assets held by, or deposits in or for the account of, or
loans by, or letters of credit issued by, or commitments of an office of any
Bank, that has or would have the effect of reducing the rate of return on such
Bank's capital as a consequence of such Bank's obligations hereunder to a level
below that which such Bank could have achieved but for such compliance (taking
into consideration such Bank's policies with respect to capital adequacy
immediately before such compliance by an amount deemed by such Bank to be
material, or
4.6.4 impose on any Bank or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Credit Documents,
the Loans, the Bond, such Bank's Commitment for Loans, such Bank's Commitment
for Bond, or any class of loans or commitments of which any of the Loans, the
Bond, or such Bank's Commitment for Loans or such Bank's Commitment for Bond,
forms a part, and the result of any of the foregoing is:
(a) to increase the cost to any Bank of making, funding,
issuing, renewing, extending or maintaining any of the Loans, the Bond,
or such Bank's Commitment for Loans or Commitment for Bond, or
(b) to reduce the amount of principal, interest, or other
amount payable to such Bank or the Agent hereunder on account of such
Bank's Commitment for Loans or Commitment for Bond, or any of the Loans
or the Bond, or
(c) to require such Bank or the Agent to make any payment or
to forego any interest or other sum payable hereunder, the amount of
which payment or foregone interest or other sum is calculated by
reference to the gross amount of any sum receivable or deemed received
by such Bank or the Agent from the Obligors hereunder;
then, and in each such case, the Obligors will, upon demand made by such Bank or
(as the case may be) the Agent at any time and from time to time and as often as
the occasion therefor may arise, pay to such Bank or the Agent such additional
amounts as will be sufficient to compensate such Bank or the Agent for such
additional cost, reduction, payment or foregone interest or such other sum,
without duplication of any payment coming due under SECTION 4.7.
4.7 CAPITAL ADEQUACY. If any change in any law, or enactment of any new
law, governmental rule, regulation, policy, guideline or directive or the
interpretation thereof by a court or governmental authority with appropriate
jurisdiction affects the amount of capital required or expected to be maintained
by any Bank or any corporation controlling such Bank and such Bank determines
that the amount of capital required to be maintained by it is increased by or
based upon the existence of such Bank's commitment with respect to any Loans or
the Bond, and has or would have the effect of reducing the rate of return on
such Bank's capital as a consequence of such Bank's obligations hereunder to a
level below that which such Bank could have achieved but for such compliance
(taking into consideration such Bank's policies with respect to capital adequacy
immediately before such compliance by an amount deemed by such Bank to be
material, then such Bank or the Agent may notify the Obligors of such fact. To
the extent that the costs of such increased capital requirements are not
reflected in the Floating Rate, and without duplication of any payment coming
due under SECTION 4.6.3, the Obligors and such Bank or (as the case may be) the
Agent shall thereafter attempt to negotiate in good faith, within thirty (30)
days of the day on which the Obligors receive such notice, an adjustment payable
hereunder that will adequately compensate such Bank in light of these
circumstances. If the Obligors and such Bank or the Agent are unable to agree to
such adjustment within thirty (30) days of the date on which the Obligors
receive such notice, then commencing on the date of such notice (but not earlier
than the effective date of any such increased capital requirement), the fees
payable hereunder shall increase by an amount that will, in such Bank's and the
Agent's reasonable determination, provide adequate compensation. Each Bank shall
allocate such cost increases among its customers in good faith and on an
equitable basis. The Obligors may at their option elect to seek a substitute
Bank (which may be one or more of the Banks and which shall be reasonably
satisfactory to the Banks other than the Bank demanding such compensation) to
purchase the portion of the Loans and the Bond then held by, and to assume the
commitments hereunder of, such Bank. Until such substitution shall be
consummated, the Obligors shall continue to pay to such Bank being replaced any
amounts required by this Credit Agreement, including this SECTION 4.7. Upon any
such substitution, the Obligors (or such substitute Bank, as applicable) shall
pay to such Bank being replaced all principal, interest and other amounts
accrued or owing to such Bank hereunder through the date of substitution and
such Bank shall cease to be a party hereto but Obligors shall continue to be
bound by, and such Bank shall be entitled to the benefits of, all sections
hereunder providing indemnifications by Obligors of the Banks.
4.8 CERTIFICATE. A certificate setting forth any additional amounts payable
pursuant to SECTIONS 4.6 or 4.7 and a brief explanation of such amounts which
are due and calculations in reasonable detail showing the determination of the
amounts due, submitted by any Bank or the Agent to the Obligors, shall be
conclusive, absent manifest error, that such amounts are due and owing.
4.9 DEFAULT INTEREST RATE. At the Banks' election, exercisable in their
sole and absolute discretion, following the occurrence and during the
continuance of any Event of Default, the interest rates applicable under the
Notes and the Bond may be increased (a) to a rate per annum equal to three
percent (3%) above the Floating Rate with respect to Floating Rate Loans and
Floating Rate Portions, (b) to a rate per annum equal to three percent (3%)
above the Fixed Rate with respect to Fixed Rate Loans and Fixed Rate Portions,
and (c) to a rate per annum equal to three percent (3%) above the interest rate
applicable under the Bond with respect to the Bond, in each case until such
Event of Default is cured.
4.10 INTEREST LIMITATION. Notwithstanding any other provision of this
Credit Agreement or any other of the Credit Documents, the maximum amount of
interest that may be charged to or collected from the Obligors by any Bank under
this Credit Agreement or any other of the Credit Documents shall in no event
exceed the maximum amount of interest that could lawfully be charged or
collected under applicable law. Any provision of this Credit Agreement or any
other of the Credit Documents that could be construed as providing for interest
in excess of such lawful maximum shall be expressly subject to this SECTION
4.10. Any part of the Obligations consisting of amounts to be paid to any Bank
for the use, forbearance or detention of the Obligations shall, to the extent
permitted by applicable law, be allocated throughout the full term of the
Obligations until payment in full of the Obligations (including any renewal or
extension thereof) so that interest on account of the Obligations shall not
exceed the maximum amount permitted by applicable law.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
The Obligors each represent and warrant to the Banks and the Agent as
follows:
5.1 ORGANIZATION AND QUALIFICATION. Each Obligor is a duly organized
corporation validly existing and in good standing under the laws of the State of
Delaware, and has the power to own its assets and to transact the business in
which it is presently engaged, and, except with respect to the jurisdictions set
forth in SCHEDULE 5.1 attached hereto (in which jurisdictions the applicable
Obligor has qualified to do business), does not do business in any other
jurisdiction that would require Obligor to qualify to do business in such
jurisdiction except where the failure to qualify to transact business would not
have a Material Adverse Effect.
5.2 POWER AND AUTHORIZATION. Each Obligor has, or at the time of execution
shall have, the corporate power to execute, deliver and perform the Credit
Documents and to borrow and guaranty hereunder and thereunder, and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions of, and the execution, delivery and performance of, the Credit
Documents. All consents, licenses, approvals or authorizations of, or
registrations or declarations with, any governmental authority, bureau or agency
which are required in connection with the execution, delivery, performance,
validity or enforceability of the Credit Documents have been duly obtained and
are in full force and effect.
5.3 NO LEGAL BAR TO LOANS. The execution, delivery and performance of the
Credit Documents shall not (a) violate (i) any material provision of any
existing law or regulation, any order or decree of any court or governmental
authority, bureau or agency, (ii) the certificate of incorporation and by-laws
of any Obligor, or (iii) any mortgage, indenture, material contract or other
agreement to which any Obligor is a party or which purports to be binding upon
such Obligor or upon any of its properties or assets (except where a waiver
thereunder has been obtained); or (b) result in the creation or imposition of
any lien, charge or encumbrance on, or security interest in, any property of the
Obligors, except in the case of clause (a) (i) and (a) (iii) where such
violation would not have a Material Adverse Effect.
5.4 NO MATERIAL LITIGATION. There are no actions, suits or proceedings
(whether or not purported to be on behalf of or against any Obligor) pending or,
to the knowledge of any Obligor, threatened against or affecting such Obligor or
any of its properties which, if adversely determined, would have a Material
Adverse Effect. None of the Obligors is in default with respect to any order of
any court, arbitrator or governmental body nor subject or a party to any order
of any court or governmental body arising out of any action, suit or proceeding
under any statute or other law in any manner which would have a Material Adverse
Effect.
5.5 NO DEFAULT. None of the Obligors is in default in the payment or
performance of any material contract, lease of personal property or real
property, agreement or other instrument to which it is a party, or by which any
of its assets may be bound, in any manner which could have a Material Adverse
Effect, and no Event of Default has occurred and is continuing hereunder.
5.6 NO PENDING INSOLVENCY. Each Obligor is solvent, and no borrowings made
by the Obligors subject to this Credit Agreement render or shall render any of
the Obligors insolvent; no Obligor is contemplating the filing of a petition
under any state or federal bankruptcy or insolvency laws or a petition for the
liquidation of or to appoint a receiver for all or a major portion of its
property, nor does any Obligor have any knowledge of any person contemplating
the filing of any such petition against such Obligor or its assets, including
the properties and assets reflected in the financial statements referred to in
SECTION 5.8 hereof.
5.7 TAXES. Each Obligor has filed or caused to be filed all tax returns
required to be filed by it, and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it, except where failure to
file such tax returns and pay such taxes would not have a Material Adverse
Effect; and no tax liens have been filed and no claims are being asserted with
respect to any taxes which are not reflected in the financial statements
referred to in SECTION 5.8 hereof; to the extent required by GAAP, each Obligor
has reserved against all taxes that are payable by it that are not yet due or
that are shown to be due on any tax return filed by it or have been assessed
against it but have not yet been paid.
5.8 FINANCIAL CONDITION AND STATEMENTS. All financial statements previously
furnished by the Obligors to the Banks fully and accurately reflect the
financial condition of each Obligor as of the dates furnished and have been
prepared in accordance with generally accepted accounting principles,
consistently applied. There has been no material adverse change in the financial
condition of any Obligor since the date of such statements, and each Obligor has
disclosed in writing to the Banks any material obligation, liability or
commitment, direct or contingent which existed as of the date of said financial
statements and which is not reflected in said financial statements, and which is
known by such Obligor as of the date of this Credit Agreement. The Obligors have
no liability or obligation of any nature whatever (whether absolute, accrued,
contingent or otherwise, whether or not due), forward or long-term commitments
or unrealized or anticipated losses from unfavorable commitments, except matters
that, individually or in the aggregate, could not reasonably be expected to have
a Material Adverse Effect and contractual obligations incurred in the ordinary
course of Obligors' businesses.
5.9 OWNERSHIP OF PROPERTY. Each Obligor owns or leases all property,
tangible and intangible, necessary to conduct the business in which it is
engaged in the manner in which that business has been conducted, and each
Obligor has good and marketable title to all of its properties and assets,
subject only to the Liens granted in the Security Documents to the Banks or
permitted by this Credit Agreement.
5.10 COMPLIANCE WITH LAWS. Each Obligor has complied in all material
respects with all laws, regulations and orders applicable to its operations,
including those pertaining to labor and minimum wages, zoning, environment,
health and safety, except for such non-compliance as has been resolved and would
not reasonably be expected to have any future Material Adverse Effect on any of
the Obligors.
5.11 STATEMENTS. No statement of fact made by or on behalf of the Obligors
in this Credit Agreement or in any certificate or schedule furnished to the
Banks pursuant hereto, contains any untrue statement of a material fact or omits
to state any material fact necessary to make the statements contained therein or
herein not misleading as of the time made. There is no fact presently known to
any Obligor that has not been disclosed to the Banks which materially affects
adversely nor, as far as such Obligor can foresee, will materially affect
adversely such Obligor's property, operations, prospects or condition (financial
or otherwise).
5.12 BINDING EFFECT. The Credit Documents and all of the other instruments
and documents executed by the Obligors and delivered to Lender pursuant to this
Credit Agreement constitute the legal, valid, and binding obligations of each of
the Obligors and are enforceable in accordance with their respective terms.
5.13 REGULATION U. None of the Obligors own "margin stock" as such term is
defined in Regulation U, as amended (12 C.F.R. Part 221), issued by the Board of
Governors of the Federal Reserve System (the "Board"). The proceeds of the Loans
made pursuant to this Credit Agreement shall be used by the Obligors only for
the purposes permitted by the Banks as set forth in SECTION 2.7 and SECTION 3.5.
None of the proceeds of the Loans will be used, directly or indirectly, for the
purpose of reducing or retiring any indebtedness which was originally incurred
to purchase or carry margin stock or for any other purpose which might
constitute any of the Loans a "purpose credit" within the meaning of said
Regulation U or Regulation X (12 C.F.R. Part 224) of the Board. None of the
Obligors nor any agent acting in their behalf has taken or will take any action
which might cause this Credit Agreement or any of the documents or instruments
delivered pursuant hereto to violate any regulation of the Board or to violate
the Securities Exchange Act of 1934, in effect as of the date hereof.
5.14 EMPLOYEE BENEFIT PLANS.
5.14.1 Except as disclosed in writing to the Banks, none of the
employee benefit plans maintained at any time by the Obligors or the trusts
created thereunder has engaged in a prohibited transaction which could subject
any Obligor to a material tax or penalty on prohibited transactions imposed
under Code Section 4975 which would have a Material Adverse Effect.
5.14.2 Except as disclosed to the Banks, (a) none of the employee
benefit plans of the Obligors which are Guaranteed Pension Plans have been
terminated or, if terminated, has had or could reasonably be expected to have a
Material Adverse Effect; (b) none of such employee benefit plans have incurred
any liability to the PBGC established pursuant to ERISA, other than for required
insurance premiums which have been paid when due, or incurred any accumulated
funding deficiency, whether or not waived, or if such liability or deficiency
has been incurred, has had or could reasonably be expected to have a Material
Adverse Effect; and (c) no reportable event, or other event or condition, has
occurred, which reasonably presents a material risk of termination of any such
employee benefit plan by the PBGC, or if such event or condition has occurred,
then it has not had and could not reasonably be expected to have a Material
Adverse Effect.
5.14.3 The present value of all accrued benefits under each Title IV
employee benefit plan of each Obligor did not, as of the most recent valuation
date, exceed the then current fair market value of the assets of such Title IV
employee benefit plans allocable to such accrued benefits.
5.14.4 The consummation of the Loans and the Bond from the Banks
provided for in this Credit Agreement will not involve any prohibited
transaction.
5.14.5 As used in this Section, the terms "employee benefit plan",
"employee pension benefit plan", "accumulated funding deficiency", "reportable
event", and "accrued benefits" shall have the respective meanings assigned to
them in ERISA, and the term "prohibited transaction" shall have the meaning
assigned to it in Code Section 4975 and ERISA.
5.15 AFFILIATES, SUBSIDIARIES. All of the Obligors' Affiliates,
Subsidiaries and parent company, if any, are listed in SCHEDULE 5.15 attached
hereto. The outstanding capital stock of all of the Obligors and their
Subsidiaries has been duly authorized, validly issued, fully paid and
nonassessable and is not margin stock.
5.16 INVESTMENT COMPANY. No Obligor is an "investment company", or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company", as such terms are defined in the Investment Company Act of
1940, as amended (15 U.S.C. ss. 80a-1, et seq.). The application of the proceeds
and repayment of the Loans and the Bond by the Obligors, the performance of the
transactions contemplated by this Credit Agreement and the exercise of the
powers of the Banks or (as the case may be) the Agent under the Credit
Documents, shall not violate any provision of said Act, or any rule, regulation
or order issued by the Securities and Exchange Commission thereunder.
5.17 NO CATASTROPHIC EVENTS. Neither the business nor the properties of any
Obligor or any of its affiliates or subsidiaries are affected by any fire,
explosion, accident, strike, lock-out or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of a public enemy or other casualty
(whether or not covered by insurance) that could have a Material Adverse Effect
on such Obligor or any of its Affiliates.
5.18 ENVIRONMENTAL COMPLIANCE. The Obligors jointly and severally make the
following representations and warranties to the Banks as to the Real Estate:
5.18.1 Except as disclosed in the financial statements referred to in
SECTION 5.8 hereof, or as otherwise disclosed to the Banks in writing, none of
the Obligors and none of the operations conducted by any of the Obligors on any
of the Real Estate, is in violation, or alleged violation, of any judgment,
decree, order, law, license, rule or regulation pertaining to environmental
matters, including without limitation, those arising under the Environmental
Laws, which violation would reasonably be expected to have a Material Adverse
Effect on the value of any of the Real Estate or a Material Adverse Effect.
5.18.2 Except as disclosed in the financial statements referred to in
SECTION 5.8 hereof, or as otherwise disclosed to the Banks in writing, none of
the Obligors has received written notice from any third party, including without
limitation any federal, state or local governmental authority, (i) that it has
been identified by the United States Environmental Protection Agency ("EPA") as
a potentially responsible party under CERCLA with respect to a site listed on
the National Priorities List, 40 C.F.R. Part 300 Appendix B (1986); (ii) that
any hazardous waste, as defined by 42 U.S.C. ss. 9601(5), any hazardous
substances as defined by 42 U.S.C. ss. 9601(14), any pollutant or contaminant as
defined by 42 U.S.C. ss. 9601(33) or any toxic substances, oil or hazardous
materials or other chemicals or substances regulated by any Environmental Laws
(collectively, "Hazardous Materials") which it has generated, transported or
disposed of have been found at any site at which a federal, state or local
agency or other third party has conducted or has ordered that such Obligor
conduct a remedial investigation, removal or other response action pursuant to
any Environmental Laws; or (iii) that it is or shall be a named party to any
claim, action, cause of action, complaint, or legal or administrative proceeding
(in each case, contingent or otherwise) arising out of any third party's
incurrence of costs, expenses, losses or damages of any kind whatsoever in
connection with the Release of Hazardous Materials, except for such notices that
have been fully resolved to the satisfaction of the issuer thereof; provided
that with respect to any notice received by the Obligors after the Closing Date,
this SECTION 5.18.2 shall only be deemed a representation and warranty with
respect to the matters in (i), (ii) and (iii) above if such notice, or the
conditions referenced therein, would have a Material Adverse Effect.
5.18.3 Except as disclosed in the financial statements referred to in
SECTION 5.8 hereof, or as otherwise disclosed to the Banks in writing, no
portion of any of the Real Estate has been used for the handling, processing,
storage or disposal of Hazardous Materials except in material compliance with
applicable Environmental Laws; and no underground tank or other underground
storage receptacle for Hazardous Materials is located on any portion of any of
the Real Estate; and (i) in the course of any activities conducted by any of the
Obligors, or the operators of any of the Real Estate, no Hazardous Materials
have been generated or are being used on any of the Real Estate except in
material compliance with applicable Environmental Laws; (ii) there has been no
past or present releasing, spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, disposing or dumping (a "Release" or
"Releases") or threatened Release of Hazardous Materials on, upon, into or from
any of the Real Estate, which Release would reasonably be expected to have a
Material Adverse Effect on the value of any of the Real Estate or adjacent
properties or the environment; (iii) to Obligor's knowledge, there have been no
Releases on, upon, from or into any real property in the vicinity of any of the
Real Estate which, through soil or groundwater contamination, may have come to
be located on, and which would have a material adverse effect on the value of,
any of the Real Estate; and (iv) any hazardous wastes (as defined in RCRA or
applicable state law) that have been generated on any of the Real Estate have
been transported, treated or disposed of as required under applicable
Environmental Laws.
5.18.4 Except as disclosed in the financial statements referred to in
SECTION 5.8 hereof, or as otherwise disclosed to the Banks in writing, no part
of any of the Real Estate is or shall be subject to any applicable environmental
clean-up responsibility law or environmental restrictive transfer law or
regulation, by virtue of the transactions set forth herein and contemplated
hereby.
5.19 EXISTING INDEBTEDNESS. A complete and accurate list of all
existing indebtedness of each Obligor and each Affiliate, Subsidiary and parent
thereof for borrowed money as of the execution by the Obligors of this Credit
Agreement is set forth in SCHEDULE 5.19, showing the principal amount
outstanding thereunder as of the date of this Credit Agreement.
5.20 YEAR 2000 COMPLIANCE. The Obligors jointly and severally represent and
warrant to the Banks, which representation and warranty shall survive the
closing and making of all of the Loans, and the issuance of the Bond, that the
Obligors have taken all reasonably necessary action to assess, evaluate and
correct all of the hardware, software, imbedded microchips and other processing
capabilities they use, directly or indirectly, to ensure that they will be able
to function accurately and without interruption or ambiguity using date
information before, during, and after January 1, 2000, except for failures in
function which would not have a Material Adverse Effect on any of the Obligors,
their respective operations, or on the exposure of any of the Obligors to any of
their respective customers.
Section 5.21 LABOR MATTERS. The Obligors are not a party to any labor union
or collective bargaining agreement. The Obligors are in compliance with all
applicable laws respecting employment and employment practices, except where
failure to so comply would not have a Material Adverse Effect. There is no
unfair labor practice complaint pending or threatened against any of the
Obligors before the National Labor Relations Board, any court or any other
governmental authority, nor any pending or threatened sexual harassment or
wrongful discharge claim, labor strike, dispute, slow down, or stoppage pending
or threatened against any of the Obligors, or a representation petition
respecting the employees of any of the Obligors filed or threatened to be filed
with the National Labor Relations Board which would have a Material Adverse
Effect.
Section 5.22 BROKERAGE COMMISSIONS. No Person is entitled to receive from
the Obligors any brokerage commission, finder's fee or similar fee or payment in
connection with the consummation of the transactions contemplated by this Credit
Agreement. No brokerage or other fee, commission, or compensation is to be paid
by the Banks or the Agent by reason of any act, alleged act or omission of the
Obligors with respect to the transactions contemplated hereby.
Section 5.23 TRADE NAMES. All trade names presently used or previously used
by the Obligors are listed in SCHEDULE 5.23 attached hereto.
SECTION 6. AFFIRMATIVE COVENANTS OF THE OBLIGORS.
The Obligors covenant and agree, jointly and severally, that, so long as
any Loan or Note, or the Bond, is outstanding or any Bank has any obligation to
make any Loans or advance its portion of any Bond Advances:
6.1 FINANCIAL STATEMENTS, REPORTS AND CONTRACTS. The Obligors shall furnish
to the Agent and to the Banks the following information at the times set forth
below:
6.1.1 On or before ninety (90) days after the close of each of their
respective fiscal years, annual financial statements of the Obligors for such
applicable fiscal year, on a consolidated basis, including, without limitation,
balance sheets, statements of income and expenses, statements of retained
earnings, statements of cash flow, schedules of debt maturities and contingent
liabilities, and similar statements, and also including consolidating schedules,
all with customary supporting data and schedules all in reasonable detail, in
form satisfactory to the Banks, prepared in accordance with GAAP, consistently
applied, audited by an independent certified public accountant satisfactory to
the Banks.
6.1.2 On or before sixty (60) days after the close of each fiscal
quarter of the Obligors, a quarterly financial operating statement of the
Obligors for each such quarter, on a consolidated basis, including statements of
results year to date, and similar statements, and showing comparable monthly
results for the immediately preceding year, all with customary supporting data
and schedules all in reasonable detail, in a form satisfactory to the Banks, and
prepared in accordance with GAAP (except to the extent condensed in accordance
with the rules and regulations of the United States Securities and Exchange
Commission) by the Obligors' management, and certified to the Banks that such
statements are in accordance with each Obligors' prior management accounting
practices, and together with a covenant compliance certificate of the Obligors
certifying that no Event of Default has occurred, or a description of such Event
of Default if one has occurred, and that the Obligors have complied with all
financial covenants and conditions of the Loans, such certificate to be signed
by the chief financial officer or president of the applicable entity.
6.1.3 On or before one hundred eighty (180) days of the end of each
fiscal year of Bacou, S.A., such company's annual audited financial statements.
6.1.4 With reasonable promptness, such other information bearing upon
the credit and the status of business and operations of the Obligors, Bacou, SA,
or any Subsidiaries or Affiliates as the Banks or the Agent may from time to
time reasonably request.
6.2 ACCOUNTS / AUDITS. The Obligors shall keep proper books of record and
account in which full, true and correct entries in reasonable detail will be
made of all of their respective transactions in accordance with GAAP,
consistently applied, and the requirements of public regulatory authorities
having jurisdiction over them. The Obligors shall permit the Banks and the Agent
through the Banks' and the Agent's officers, employees and agents, to inspect
the places of business, equipment, property and records of the Obligors at any
time as the Banks or the Agent may require, and to audit the Obligors' records
of account on reasonable notice and with the conduct of business of the
Obligors, the reasonable expense of which audit(s) shall be borne by the
Obligors and shall be payable to the Agent upon demand. So long as no Event of
Default has occurred and continued uncured, the Agent shall not conduct such
audits more than once in each calendar year hereafter.
6.3 PAYMENT OF OBLIGATIONS. Each Obligor shall pay and discharge, when due,
all of its obligations and liabilities (including, without limitation, tax
liabilities) except where the same may be contested in good faith and with prior
written notice thereof to the Banks. Each Obligor shall maintain appropriate
reserves for the accrual of any of the same determined in accordance with
generally accepted accounting principles, consistently applied.
6.4 NOTICES.
6.4.1 DEFAULTS. The Obligors will promptly notify the Agent and each
of the Banks in writing of the occurrence of any Default or Event of Default. If
any Person shall give any notice or take any other action in respect of a
claimed default (whether or not constituting an Event of Default) under this
Credit Agreement or any other note, evidence of indebtedness, indenture or other
obligation to which or with respect to which any Obligor is a party or obligor
in excess of $500,000, whether as principal, guarantor, surety or otherwise,
such Obligor shall forthwith give written notice thereof to the Agent and each
of the Banks, describing the notice or action and the nature of the claimed
default.
6.4.2 ENVIRONMENTAL EVENTS. The Obligors will promptly give notice to
the Agent and each of the Banks any of the following if it has the potential to
materially affect the assets, liabilities, financial conditions or operations of
any Obligor, or the Agent's security interests granted hereunder: (i) of any
violation of any Environmental Law that any Obligor reports in writing or is
reportable by such Person in writing (or for which any written report
supplemental to any oral report is made) to any federal, state or local
environmental agency and (ii) upon becoming aware thereof, of any inquiry,
proceeding, investigation, or other action, including a notice from any agency
of potential environmental liability, or any federal, state or local
environmental agency or board.
6.4.3 NOTICE OF LITIGATION AND JUDGMENTS. The Obligors will give
notice to the Agent and each of the Banks in writing within fifteen (15) days of
becoming aware of any litigation or proceedings threatened in writing or any
pending litigation and proceedings affecting any Obligor or to which any Obligor
is or becomes a party involving a claim against such Obligor (whether or not the
claim is considered by such Obligor to be covered by insurance) that could
reasonably be expected to have a materially adverse effect on such Obligor or
the security interests granted hereunder and stating the nature and status of
such litigation or proceedings. The Obligors will give notice to the Agent and
each of the Banks, in writing, in form and detail satisfactory to the Agent,
within ten (10) days of any judgment not covered by insurance, final or
otherwise, against any Obligor in an amount in excess of $100,000.
6.4.4 NOTICE OF MATERIAL ADVERSE CHANGE. The Obligors will give notice
to the Agent and each of the Banks in writing of any material adverse change in
the business, assets, operations or financial condition of any one or more of
the Obligors, promptly upon becoming aware thereof. Such written notice shall
set forth the details of such change and any action with respect thereto taken
or contemplated to be taken by any one or more of the Obligors.
6.4.5 NOTICE OF NAME CHANGES AND LOCATION CHANGES. The Obligors shall
(a) immediately notify the Agent if any of the Obligors is known by or
conducting business under any names other than the names described in SCHEDULE
5.23, (b) notify the Agent within fifteen (15) days if any one or more of the
Obligors are conducting any of their businesses or operations at or out of
offices or locations other than those previously disclosed in writing to the
Banks, and (c) notify the Agent at least fifteen (15) days prior to the date
upon which the Obligors intend to change the location of their respective chief
executive offices, principal places of business, or location of any material
amount of the collateral for the Bond from those locations against which the
Banks have filed UCC financing statements.
6.4.6 LABOR DISPUTES. The Obligors shall notify Agent in writing,
promptly, but in any event within two (2) business days after learning thereof,
of any material labor dispute to which any of the Obligors may become a party,
any strikes or walkouts relating to their respective businesses, and any
expiration of any labor contract to which they are a party or by which they are
bound, which expiration would have a Material Adverse Effect.
6.5 MAINTENANCE OF PROPERTIES; INSURANCE. Each Obligor shall keep all of
its properties useful and necessary to its business in good repair, working
order and condition, and from time to time make or cause to be made all needful
and proper repairs, renewals, replacements, betterments and improvements
thereto, so that the businesses carried on by such Obligor may be properly and
advantageously conducted at all times. Each Obligor shall maintain insurance
(which may consist of appropriate self-insurance, reasonably acceptable to the
Banks) on all of its properties and assets in reasonable amounts in accordance
with sound business practices, insuring against such risks as are usually
insured against in the same general area and by entities engaged in the same or
a similar business, including, by way of illustration and not of limitation,
fire with extended coverage, public liability, theft, personal property,
collision, and workers' compensation insurance. All insurance maintained by the
Obligors in which the Banks may have an insurable interest, regardless of
whether required hereunder, shall name the Agent, on behalf of the Banks, as
first loss payee or first mortgagee, as applicable.
6.6 ADDITIONAL INSTRUMENTS. The Obligors shall promptly execute and deliver
or cause to be executed and delivered to the Banks or (as the case may be) the
Agent from time to time all such additional and/or supplemental instruments and
documents as the Banks or the Agent deem reasonably necessary or appropriate to
evidence the obligations of the Obligors to the Banks in connection herewith,
with the Loans, and with the Bond, provided that the Obligors are first afforded
the opportunity to review such documents with their respective legal counsel.
Upon receipt of an affidavit of an officer of any Bank as to the loss, theft,
destruction or mutilation of a Bank's Note, and, in the case of any such loss,
theft, destruction or mutilation, upon surrender and cancellation of such Note,
Obligors will issue, in lieu thereof, a replacement Note in the same principal
amount thereof and otherwise of like tenor.
6.7 INSPECTION. Each Obligor shall permit representatives (whether or not
officers or employees) of the Banks or the Agent, at any reasonable time, from
time to time, as often as may be reasonably requested by the Banks or the Agent,
and after the giving by the Banks or the Agent of reasonable prior notice to
such Obligor, to visit any of the Real Estate on which any of such Obligor's
property or books and records may be located, to inspect and verify the amount,
character and condition of, any of such Obligor's property, to review and make
extracts from and to audit its books and records of others relating to it,
including management letters prepared by its independent certified public
accountants, and to discuss with its principal officers, directors and
independent certified public accountants, its business, assets, liabilities,
financial condition, results of operations and business prospects. Any costs and
expenses incurred by the Banks or the Agent shall be at Borrower's sole cost and
expense; provided, however, that if Agent or Banks conduct more than one (1)
inspection during any twelve (12) month period, the cost of such additional
inspections shall be at such Banks' or Agent's sole cost and expense, except if
an Event of Default has occurred, in which case all such inspections after such
Event of Default will be at Borrower's sole cost and expense.
6.8 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE. Each Obligor shall do
all things necessary to preserve, renew and keep in full force and effect its
existence as a corporation organized under the laws of the State of Delaware,
and all of its rights, franchises and licenses material to its operations as
conducted from time to time, and shall comply in all respects with all
applicable laws, except where compliance therewith shall at the time be
contested in good faith by appropriate proceedings or where failure so to comply
has not resulted, or does not pose a material risk of resulting, in the
aggregate, in any material adverse change in the financial condition of such
Obligor.
6.9 LABOR LAWS. Each Obligor shall comply with all labor laws at any time
applicable to it including, without limitation, all labor laws and minimum wage
laws, except where compliance therewith shall at the time be contested in good
faith by appropriate proceedings or where failure so to comply has not resulted,
or does not pose a material risk of resulting, in the aggregate, in any Material
Adverse Effect, and shall make all proper and applicable deductions from wages
required by law and all payments related to such deductions made.
6.10 EMPLOYEE BENEFIT PLANS. Each Obligor shall maintain each of its
employee benefit plans (if any) that are subject to Title IV of ERISA, in
material compliance with all applicable requirements of ERISA and of the Code,
and with all applicable regulations issued under the provisions of ERISA and of
the Code and, without limiting the generality of the foregoing, shall satisfy
the Minimum Funding Standard for any such plan as defined in Section 412(a) of
the Code and shall not engage in any Prohibited Transaction with respect to any
such plan as defined in Section 4975(c) of the Code. Each Obligor shall promptly
furnish to Lender statements of such Obligor setting forth details of any
Reportable Event (as defined in Section 4043(b) of ERISA), as to which notice
has not been waived, which may have occurred and the action which such Obligor
proposes to take with respect thereto, together with a copy of notice of such
Reportable Event given to the PBGC; promptly upon the filing or making thereof,
such Obligor shall make available to the Agent a copy of each annual report with
respect to any such plan; and promptly after receipt thereof, make available to
the Agent a copy of any material notice such Obligor receives from the PBGC or
the Internal Revenue Service with respect to any such plan.
6.11 ENVIRONMENTAL INDEMNIFICATION. In respect of all environmental matters
each Obligor shall:
6.11.1 Comply in all material respects with the requirements of all
federal, state, and local Environmental Laws, except where the Obligors are
contesting such requirements in good faith and in accordance with all
Environmental Laws; notify the Banks promptly in the event of any spill,
hazardous waste pollution or contamination affecting any of the Real Estate that
would reasonably be expected to have a Material Adverse Effect thereon or on any
of the Obligors; forward to the Banks promptly any notices relating to such
matters received from any governmental agency; and pay promptly when due any
fine or assessment against the Real Estate unless such fine or assessment is
being contested in good faith and appropriate reserves have been created.
6.11.2 Except in the ordinary course of operating its business, and
except as to current tenants, not become involved, and shall use its best
efforts to not permit any tenant or subtenant of any of the Real Estate to
generate, store, dispose, or handle any hazardous material or conduct any
activity that could lead to the imposition on the Banks, the Agent, any Obligor,
or any of the Real Estate of any liability or lien under any Environmental Laws.
6.11.3 If required by the Rhode Island Department of Environmental
Management, the United States Environmental Protection Agency or any other
municipal, state or federal governmental agency having jurisdiction over any of
the Real Estate, remediate any hazardous material found on the Real Estate,
which work must be done (except where the Obligors contest such requirements or
laws in good faith, in accordance with Environmental Laws, and with notice to
the Agent) in compliance with all requirements and all applicable laws and at
Obligors' expense; and, provided that an Event of Default has occurred and is
continuing, each Obligor agrees that the Banks or the Agent have the right, at
their sole option but at Obligors' reasonable expense, to have an environmental
engineer or other representative review the work being done.
6.11.4 Promptly upon the request of the Banks or the Agent, based upon
the Banks' or the Agent's reasonable belief that a hazardous waste or other
environmental condition exists with respect to any of the Real Estate that would
reasonably be expected to have a Material Adverse Effect, provide the Banks with
an environmental assessment report as to such condition or an update of any
existing comparable report, all in scope, form and content reasonably
satisfactory to the Banks; provided that if such report is being submitted to a
governmental agency overseeing the Obligors' response to the environmental
condition, then the Obligors shall satisfy their obligations under this Section
by providing to the Banks or the Agent a copy of such report.
6.11.5 Indemnify, defend, and hold the Banks and the Agent harmless
from and against any claim, proceedings, investigations, costs, damage
(including, without limitation, consequential damages), expense (including,
without limitation, reasonable attorneys' fees, investigatory and consulting
fees and expenses), loss, liability, or judgment now or hereafter arising as a
result of any claim, proceeding or investigation, whether federal, state,
municipal, or under the Environmental Laws, for environmental cleanup costs, any
resulting damage to the environment and any other environmental claims against
any Obligor, the Banks, the Agent, or any of the Real Estate, except to the
extent such claims, costs, damages, loss, liability or judgment directly results
from the negligent acts or omissions or willful misconduct of the Banks, the
Agent or their representatives or agents. The provisions of this Section shall
continue in full force and effect and shall survive Obligors' repayment of the
Loans and the Bond.
6.12 PRIMARY OPERATING ACCOUNTS. The Obligors shall maintain their primary
operating accounts with BankBoston (or its successor in interest) at all times
during the term hereof, and BankBoston (and its successor) shall provide the
Obligors' cash management services.
6.13 COMPLIANCE WITH LAWS. The Obligors shall at all times comply in all
material respects with all laws applicable to them and to the Real Estate,
including, without limitation, the Americans with Disabilities Act, as the same
may be modified from time to time, except when a failure to so comply has no
Material Adverse Effect and could not reasonably be expected to have a Material
Adverse Effect.
6.14 MAINTENANCE OF DEBT SERVICE COVERAGE RATIO. During the term of the
Loans and the Bond, the Obligors shall collectively maintain, on a consolidated
basis, a minimum Debt Service Coverage Ratio equal to or greater than 1.5:1.0.
The Obligors' compliance herewith shall be tested quarterly by the Banks,
commencing as at September 30, 1999, and continuing as at each successive
December 31, March 31, June 30, and September 30 thereafter, for the period
elapsed between the first day of the Obligors' then current fiscal year and the
fiscal quarter ending as at such date of determination.
6.15 MAXIMUM CASH FLOW LEVERAGE RATIO. During the term of the Loans and the
Bond, the Obligors' Cash Flow Leverage Ratio, on a consolidated basis, shall not
exceed (a) 3.0:1.0 as at the end of each successive fiscal quarter between the
date hereof and March 31, 2000, (b) 2.75:1.0 as at the end of each successive
fiscal quarter between April 1, 2000 and March 31, 2001, (c) 2.5:1.0 as at the
end of each successive fiscal quarter between April 1, 2001 and March 31, 2002,
and (d) 2.25:1.0 as at the end of each successive fiscal quarter thereafter. The
Obligors' compliance herewith shall be tested quarterly by the Banks, commencing
as at September 30, 1999, and continuing as at each successive December 31,
March 31, June 30, and September 30 thereafter.
6.16 SUBORDINATION OF DEBT. The Obligors shall subordinate to the Loans and
the Bond, by subordination instruments satisfactory to the Banks in form and
substance, all loans made to the Obligors by any officer, director, shareholder,
partner, guarantor or Affiliate of such Obligor, or from any of the parties
listed on SCHEDULE 6.16 hereto, from time to time or at any time made, including
all principal and interest accruing thereupon. All of such loans existing as of
the date hereof are listed on SCHEDULE 6.16 attached hereto. All original
promissory notes or other instruments evidencing indebtedness of such Obligor to
such officer, director, shareholder, partner, guarantor, Affiliate or other
party shall be delivered to and held by the Agent.
6.17 JOINT AND SEVERAL LIABILITY. The Obligors hereby acknowledge, covenant
and agree that all Obligations, liabilities and covenants made, incurred and
undertaken by them under this Credit Agreement and the other Credit Documents
are on a JOINT AND SEVERAL BASIS, including without limitation, all obligations
to pay principal, interest, fees and expenses.
SECTION 7. NEGATIVE COVENANTS OF THE OBLIGORS.
The Obligors covenant and agree, jointly and severally, that, so long as
any Loan or Note or the Bond is outstanding or any Bank has any obligation to
make any Loans or fund any Bond Advance:
7.1 LIMITATION ON BORROWING. The Obligors shall not, and shall cause their
respective Affiliates, Subsidiaries and parents (but excluding Bacou, S.A.
herefrom) not to, incur, create, assume or permit to exist any Debt or liability
on account of deposits or advances or any indebtedness or liability for borrowed
money, or any indebtedness or liability evidenced by notes, Bond, debentures, or
similar obligations, including Capitalized Lease Obligations, except:
7.1.1 Debt under the Credit Documents;
7.1.2 Debt with respect to trade payable obligations and other normal
accruals and customer deposits in the ordinary course of business not yet due
and payable in accordance with customary trade terms or with respect to which
the Obligors or any Subsidiary is contesting in good faith the amount or
validity thereof by appropriate proceedings and then only to the extent such
person has set aside on its books adequate reserves therefor in accordance with
and to the extent required by GAAP;
7.1.3 Debt existing as of the date of the closing of the Loans and
referred to in SCHEDULE 7.1.3 attached hereto;
7.1.4 Debt outstanding as a refinancing of Debt permitted under
another clause of this SECTION 7.1 other than SECTION 7.1.2; provided that such
Debt as refinanced continues to qualify as permitted Debt under the clause of
this SECTION 7.1 under which the refinanced Debt was permitted under this
SECTION 7.1;
7.1.5 Debt, the terms and conditions of which have been approved in
writing by the Banks, and which Debt is subordinated, if required by the Banks,
to the prior payment of all amounts due under this Credit Agreement and the
other Credit Documents;
7.1.6 Obligations of the Obligors under any operating leases;
7.1.7 The Subordinated Debt listed on SCHEDULE 6.16 hereto; and
7.1.8 Debt to BNP evidenced by the Credit Line Agreement dated
February 19, 1998 between the Borrower and BNP for borrowings of up to
$110,000,000, and by the Credit Line Agreement dated March 25, 1999 between the
Borrower and BNP for borrowings of up to $50,000,000; and all refinancings of
the foregoing Debt to BNP up to the foregoing amounts and on substantially the
same terms, conditions and repayment schedules.
7.2 LIMITATION ON INVESTMENTS. The Obligors shall not invest in, purchase
or acquire the obligation or stock of any person, firm, or corporation or other
enterprise whatsoever except Cash Equivalent Investments and except the
acquisition of stock for the purpose of acquiring another business entity. In
addition, the Obligors shall not directly or indirectly make or commit to make
any investments in or to or any loans or other advances of money to any other
Person (including, without limitation, any Subsidiary) other than advances to
employees for business expenses in the ordinary course of any of the Obligors'
businesses.
7.3 LIMITATION ON ENCUMBRANCES. The Obligors shall not create, incur, make,
assume, or suffer to exist, after the date hereof, any Lien upon any of their
properties or assets, whether now owned or hereafter acquired, to any party
other than the Banks, excepting the following Liens:
7.3.1 For taxes, assessments or governmental charges or levies on
property (excluding any lien imposed pursuant to any of the provisions of ERISA)
if the same shall not at the time be delinquent or thereafter can be paid
without penalty or interest, or (if foreclosure, distraint, sale or other
similar proceedings shall not have been commenced or if commenced not stayed,
bonded or discharged within thirty (30) days after commencement) are being
contested in good faith and by appropriate proceedings diligently conducted and
for which proper reserve or other provision has been made in accordance with and
to the extent required by GAAP;
7.3.2 Imposed by law, such as landlords', carriers', warehousemen's
and mechanics' liens, bankers' set off rights and other similar liens arising in
the ordinary course of business for sums not yet due or being contested in good
faith and by appropriate proceedings diligently conducted and for which proper
reserve or other provision has been made in accordance with and to the extent
required by GAAP;
7.3.3 Those now or hereafter granted pursuant to the Security
Documents or otherwise now or hereafter granted to the Banks for the Banks'
benefit as collateral for the Loans or the Bond and/or the Obligors' other
obligations arising in connection with or under any of the Credit Documents;
7.3.4 Easements, rights of way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case detract
from the value of the property subject thereto or interfere with the ordinary
conduct of business by any of the Obligors or any Subsidiary;
7.3.5 Liens securing Debt permitted to exist under SECTION 7.1;
provided that the Lien securing any such Debt that is purchase money Debt is
limited to the item of property purchased or leased in each case; and
7.3.6 UCC-1 financing statements filed solely for notice or
precautionary purposes by lessors under operating leases which do not secure
Debt and which are limited to the items of equipment leased pursuant to the
lease in question.
7.4 LIMITATION ON CONTINGENT LIABILITIES. Obligors shall not directly or
indirectly guaranty the payment by any other party whatsoever of any
indebtedness, or in effect guaranty the payment of any indebtedness through an
agreement, contingent or otherwise, excepting the following:
7.4.1 Guaranties by endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course of business;
7.4.2 Assumptions, guaranties, endorsements and contingent liabilities
within the definition of Debt and permitted by SECTION 7.1 hereof or with
respect to Debt permitted hereunder;
7.4.3 Those obligations set forth in SCHEDULE 7.4 attached hereto, if
any; and
7.4.4 Guaranties guarantying the obligations of Subsidiaries given in
the ordinary course of business.
7.5 LIMITATION ON FUNDAMENTAL CHANGES. No Obligor shall sell (except sales
made in the ordinary course of the Obligors' business), lease, or otherwise
dispose of all or substantially all of its assets to any other person, firm,
corporation, association, partnership, limited liability company, joint stock
company, land trust, business trust, unincorporated organization, government or
agency or political subdivision thereof or enter into any agreement to any such
effect, merge with another corporation or other entity, engage in a
substantially different business, reorganize or recapitalize, materially amend,
modify or supplement their respective certificates of incorporation or by-laws,
or dissolve or liquidate, or permit a material change of ownership, legal
structure or control, of any of the Obligors.
7.6 LIMITATION ON SALES OF ASSETS. The Obligors shall not sell, assign,
transfer, lease, convey, abandon or otherwise dispose of, voluntarily or
involuntarily, any of their assets or properties, whether now owned or hereafter
acquired, or income or profits therefrom, except, so long as no Event of Default
exists, sales of inventory and fixtures in the ordinary course of business,
sales of obsolete assets, and sales of assets immediately replaced by assets of
equal or greater value.
7.7 LIMITATION ON ACCELERATION OF OTHER DEBT AND MODIFICATION OF
SUBORDINATED DEBT. The Obligors shall not accelerate the maturity of any Debt
now or hereafter outstanding to any other bank, lender, or financial
institution, or repay the same otherwise than in accordance with its terms or
regular amortization. The Obligors shall not amend or modify, or consent to the
amendment or modification of, the terms of any Debt which is subordinated to the
Loans, if any such amendment or modification may have an adverse effect on
repayment of the Obligations. In any event, the Obligors shall not, and shall
not permit the holder of any such Debt to, (a) increase the principal amount of
or accelerate the maturity of any such Debt; (b) increase the contractual
interest rate on such Debt; (c) grant an interest in any collateral not
previously held by such holder; or (d) modify any payment schedule for such Debt
to increase the payments due thereon.
7.8 LIMITATION ON USE OF LOAN AND BOND PROCEEDS. The Obligors shall not
permit any of the proceeds of the Loans or the Bond to be used directly or
indirectly (a) for any purposes other than the purposes expressly set forth in
this Credit Agreement, and (b) by any party other than the Obligors and the
Guarantors.
7.9 LIMITATION ON TERMS OF CERTAIN AFFILIATE AND SUBSIDIARY TRANSACTIONS.
Except as authorized pursuant to the Corporate Opportunities Agreement by and
between Borrower and Bacou S.A. dated January 1, 1996, the Obligors shall not
effect any transaction with any Affiliate or Subsidiary or stockholder of a
Obligor that is (a) outside the ordinary course of business or (b) on a basis
less favorable than would at the time be obtainable for a comparable transaction
in arms-length dealings with an unrelated third party.
SECTION 8. CLOSING CONDITIONS.
The obligations of the applicable Banks to close the Loans and to purchase
the Bond, and to make (a) the first advance of the proceeds of the Loans, and
(b) the first Bond Advance, shall be subject to the satisfaction of the
following conditions precedent on or prior to August 24, 1999:
8.1 CREDIT DOCUMENTS. Each of the Credit Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect, and shall be in form and substance satisfactory to each of the
Banks. Each Bank shall have received a fully executed copy of each such
document.
8.2 OPINIONS OF COUNSEL. Each of the Banks and the Agent shall have
received a favorable legal opinion addressed to the Banks and the Agent, dated
as of the Closing Date, in form and substance satisfactory to the Banks and the
Agent, from counsel to the Obligors, as to such matters as the Banks and the
Agent may reasonably require.
8.3 AUTHORIZATION. Each Obligor shall have furnished to the Banks and to
the Agent current copies of all corporate documents and proceedings taken by
such Obligor, certified by such Obligor's secretary or assistant secretary,
authorizing all such borrowings and actions in connection with the Loans, the
Bond, and the execution, delivery and performance of the Credit Documents, and
such other documents as the Banks, the Agent, or their respective counsel may
reasonably require.
8.4 APPROVAL OF COUNSEL. All legal matters incident to the transactions
contemplated by this Credit Agreement shall be satisfactory to the Agent's
Special Counsel.
8.5 CERTIFICATE. The representations and warranties contained in SECTION 5
hereof shall be true and correct in all material respects on the date hereof and
on each date on which (a) the Obligors request a Loan hereunder and (b) the
Obligors request a Bond Advance; and no event that constitutes or which with the
mere giving of notice or lapse of time, or both, would constitute an Event of
Default under this Credit Agreement shall have occurred and continued or shall
exist on such date. Each Obligor shall deliver to the Banks, dated as of each
date of a Loan or a Bond Advance, certificates of such Obligor's chief financial
officer, secretary or assistant secretary, to the foregoing effect.
8.6 PAYMENT OF AGENT AND OTHER FEES. On or prior to the date of the closing
of the Loans and the Bond, the Obligors shall pay to the Agent the fees due
under SECTION 4, the commitment fees due under SECTION 8.7, and all expenses
incurred by the Banks in connection with the closing of the Loans and the Bond
issuance, including without limitation all legal fees and expenses, and all
expenses incurred by any participant or purchaser of any interest in any of the
Loans or the Bond. None of the fees payable under this SECTION 8.6 shall be
refundable in whole or in part.
8.7 COMMITMENT FEES. At the closing of the Loans, and as a condition
precedent to the advance of any proceeds of the Loans or any Bond Advance, the
Obligors shall pay to the Banks, as a fee for the Bond, a fee of $75,000,
payable as follows: the sum of $37,500 shall be paid to the Agent at the
closing, and the balance of the fee, the sum of $37,500, shall be paid to the
Agent on or before January 30, 2000. The foregoing commitment fee is deemed to
have been earned in full by the Banks as of the date of this Credit Agreement.
8.8 NO MATERIAL ADVERSE EFFECT. No Material Adverse Effect or material
adverse change shall have occurred since the date of the most recent annual
"audited" financial report of the Obligors delivered to the Agent and the Banks
through the Closing Date, as to the condition (financial or otherwise),
operations, performance, properties or prospects of the Obligors, their
Subsidiaries and Affiliates.
SECTION 9. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan or purchase any portion of
the Bond, in each case whether on or after the Closing Date for any Loan or the
issuance of the Bond, shall also be subject to the satisfaction of all of the
following conditions precedent:
9.1 NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Loan or purchase
such Bond.
9.2 GOVERNMENTAL REGULATION. Each Bank shall have received such statements
in substance and form reasonably satisfactory to each Bank as each such Bank
shall require for the purpose of compliance with any applicable regulations of
the Comptroller of the Currency or the Board of Governors of the Federal Reserve
System.
9.3 PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Credit Documents
and all other documents incident thereto shall be satisfactory in substance and
in form to the Banks and to the Agent's Special Counsel, and the Banks and such
Agent's Special Counsel shall have received all information and such counterpart
originals or certified or other copies of such documents as the Agent may
reasonably request.
SECTION 10. EVENTS OF DEFAULT; ACCELERATION; ETC.
10.1 EVENTS OF DEFAULT AND ACCELERATION. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
10.1.1 the Obligors fail to pay any principal of the Loans when the
same shall become due and payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for payment;
10.1.2 the Obligors fail to pay any interest on the Loans, the
commitment fee, the Agent's fee, or any other sum due hereunder or under any of
the other Credit Documents, in each case on the date when the same shall become
due and payable, whether at the stated date of maturity or any accelerated due
date or at any other date fixed for payment, and such failure shall continue for
a period of five (5) Business Days;
10.1.3 the Obligors fail to pay any principal or interest due under
the Bond or the Guaranties, or RIIFC fails to make any payment due under the
Bond or the Bond Purchase Agreement;
10.1.4 a default or event of default occurs under any note or
agreement evidencing or governing any other indebtedness of any of the Obligors
to any other party involving an obligation of $100,000 or more, and in all such
events such default or event of default continues uncured beyond the expiration
of any applicable grace or notice period;
10.1.5 the Obligors fail to perform any term, covenant or agreement
contained herein or in any of the other Credit Documents (other than those
specified elsewhere in this SECTION 10.1, and except with respect to payment
defaults, which shall be governed solely by SECTIONS 10.1.1, 10.1.2 and 10.1.3
above, and further except with respect to the events set forth in SECTIONS
10.1.8 and 10.1.9, without reference whatsoever to this SECTION 10.1.5) for
thirty (30) days after written notice of such failure has been given to the
Obligors by the Agent, except that with respect to an Event of Default occurring
by virtue of a failure to comply with SECTION 6.11, the Obligors have, within
such thirty (30) day period, commenced and have continued to diligently pursue
the process of curing such failure, or the Obligors are contesting any
underlying claim, order or notice as provided by and in accordance with
applicable law;
10.1.6 any representation or warranty of the Obligors in this Credit
Agreement or any of the other Credit Documents or in any other document or
instrument delivered pursuant to or in connection with this Credit Agreement
shall prove to have been false in any material respect upon the date when made
or deemed to have been made or repeated;
10.1.7 any Obligor fails to pay at maturity, or within any applicable
period of grace, any obligation (except any obligation to either of the Banks)
for borrowed money or credit received or in respect of any capitalized leases,
or fails to observe or perform any material term, covenant or agreement
contained in any agreement by which it is bound, any agreement or other
instrument evidencing or securing borrowed money or credit received, or any
agreement or other instrument in respect of any capitalized leases with respect
to an obligation in excess of $100,000, and the holder or holders thereof or of
any obligations issued thereunder accelerate the maturity thereof;
10.1.8 any Obligor makes an assignment for the benefit of creditors,
or admits in writing its inability to pay or generally fails to pay its debts as
they mature or become due, or petitions or applies for the appointment of a
trustee or other custodian, liquidator or receiver of such Obligor or of any
substantial part of the assets of such Obligor, or commences any case or other
proceeding relating to such Obligor under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt, dissolution or liquidation or
similar law of any jurisdiction, now or hereafter in effect, or takes any action
to authorize or in furtherance of any of the foregoing, or if any such petition
or application is filed or any such case or other proceeding is commenced
against such Obligor and such Obligor indicates its approval thereof, consents
thereto or acquiescence therein, or such petition or application filed against
such Obligor remains undismissed for ninety (90) days from the date of filing
thereof;
10.1.9 a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any Obligor bankrupt or
insolvent, or approving a petition in any such case or other proceeding, or a
decree or order for relief is entered in respect of any Obligor in an
involuntary case under federal bankruptcy laws as now or hereafter constituted;
10.1.10 there remains in force, undischarged, unsatisfied and
unstayed, for more than sixty (60) days, whether or not consecutive, any final
judgment against any Obligor that, with other outstanding final judgments,
undischarged, against such Obligor exceeds in the aggregate $100,000; or
10.1.11 if any of the Credit Documents is canceled, terminated,
revoked or rescinded otherwise than in accordance with the terms thereof or with
the express prior written agreement, consent or approval of the Banks, or any
action at law, suit or in equity or other legal proceeding to cancel, revoke or
rescind any of the Credit Documents is commenced by or on behalf of any Obligor,
or any court or any other governmental or regulatory authority or agency of
competent jurisdiction makes a determination that, or issue a judgment, order,
decree or ruling to the effect that, any one or more of the Credit Documents is
illegal, invalid or unenforceable in accordance with the terms thereof;
then, and in any such event, so long as the same continues, the Agent shall,
after consultation with each Bank and upon its receipt of the consent to such
action from all of the Banks, by notice in writing to the Obligors declare all
amounts owing with respect to this Credit Agreement, the Notes and the other
Credit Documents to be, and they shall thereupon forthwith become, immediately
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby expressly waived by the Obligors; PROVIDED that in
the event of any Event of Default specified in SECTION 10.1.8 or SECTION 10.1.9,
all such amounts shall become immediately due and payable automatically and
without any requirement of notice from the Agent or any Bank.
10.2 TERMINATION OF COMMITMENTS. If any one or more of the Events of
Default specified in SECTIONS 10.1.8 or 10.1.9 shall occur and be continuing,
any unused portion of the Commitments shall forthwith terminate and each of the
Banks shall be relieved of all further obligations to make Loans to the
Obligors, make Bond Advances, or purchase the Bond. If any other Event of
Default shall have occurred and be continuing, the Agent shall, by notice to the
Obligors, terminate the unused portion of the applicable Commitment and cease
making Loans, purchasing the Bond, and making Bond Advances hereunder; and upon
such notice being given, the making of Loans, purchasing of the Bond, and making
of Bond Advances shall cease and be terminated immediately and each of the Banks
shall be relieved of all further obligations to make Loans, purchase the Bond
and make Bond Advances. No termination of any of the Commitments hereunder shall
relieve the Obligors of any of the Obligations.
10.3 REMEDIES. In case any one or more of the Events of Default occurs and
continues, and whether or not the Agent shall have accelerated the maturity of
any of the Loans pursuant to SECTION 10.1, the Agent shall, after consultation
with each Bank and upon its receipt of the consent to such action from all of
the Banks, proceed to protect and enforce the Banks' rights by suit in equity,
action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Credit Agreement and
the other Credit Documents or any instrument pursuant to which the Obligations
to such Bank are evidenced, including as permitted by applicable law the
obtaining of the EX PARTE appointment of a receiver, and, if such amount shall
have become due, by declaration or otherwise, proceed to enforce the payment
thereof or any other legal or equitable right of the applicable Banks. No remedy
herein conferred upon any Bank or the Agent or the holder of any Note or the
Bond is intended to be exclusive of any other remedy and each and every remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or any
other provision of law. Notwithstanding anything contained herein, the Agent may
act without the consent of, but with reasonably contemporaneous notice to, the
Banks to protect the Banks' rights in any respect if the failure to so act would
impair or adversely affect such Banks' rights and the Banks have either not had
reasonably sufficient time in which to determine their course of action or the
Banks, having had such time, are unable to agree as to the course of action to
follow.
10.4 DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that, following the
occurrence or during the continuance of any Default or Event of Default, the
Agent or any Bank, as the case may be, receives any monies in connection with
the enforcement of any of its rights hereunder or under any of the other Credit
Documents, such monies shall be distributed for application as follows:
10.4.1 First, to the payment of, or (as the case may be) the
reimbursement of, the Agent for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been incurred or sustained by the
Agent in connection with the collection of such monies by the Agent, for the
exercise, protection or enforcement by the Agent of all or any of the rights,
remedies, powers and privileges of the Agent under this Credit Agreement or any
of the other Credit Documents or in support of any provision of adequate
indemnity to the Agent against any taxes or liens which by law shall have, or
may have, priority over the rights of the Agent to such monies;
10.4.2 Secondly, to all other Obligations in such order or preference
as the Majority Banks may determine; PROVIDED, HOWEVER, that distributions in
respect of each type of Obligation (such as interest, principal, fees and
expenses), and further with respect to Loans and the Bond, shall be made among
the Banks PRO RATA; and PROVIDED, FURTHER, that the Agent may in its discretion
make proper allowance to take into account any Obligations not then due and
payable;
10.4.3 Thirdly, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Banks and the Agent of all of
the Obligations, to the payment of any obligations required to be paid pursuant
to Section 9-504(1)(c) of the Uniform Commercial Code of the State of Rhode
Island; and
10.4.4 Fourthly, the excess, if any, shall be returned to the Obligors
or to such other Persons as are entitled thereto.
10.5 RESTRICTION ON TRANSFER OF ASSETS. From and after the occurrence of an
Event of Default, the Obligors shall not sell, transfer, convey, or encumber any
of their respective assets, except for the sale of inventory in the ordinary
course of business, without the prior written consent of the Agent.
SECTION 11. SETOFF. During the continuance of any Event of Default, any
deposits or other sums credited by or due from any of the Banks to the Obligors
and any securities or other property of the Obligors in the possession of such
Bank may be applied to or set off against the payment of Obligations and any and
all other liabilities, direct, or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, of the Obligors to such Bank.
Each of the Banks agrees with each other Bank that (a) if an amount to be set
off is to be applied to indebtedness of the Obligors to such Bank, other than
indebtedness evidenced by the Notes or the Bond or the Guaranties held by such
Bank, such amount shall be applied ratably to such other indebtedness and to the
indebtedness evidenced by all such Notes, Bond and Guaranties held by such Bank,
and (b) if such Bank shall receive from the Obligors, whether by voluntary
payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim evidenced by the Notes, the Bond and the Guaranties
held by such Bank by proceedings against the Obligors 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 Notes, the Bond and the Guaranties held by such Bank, any amount in excess
of its ratable portion of the payments received by all of the Banks with respect
to the Notes, the Bond and the Guaranties held by all of the Banks, then such
Bank will make such disposition and arrangements with the other Banks with
respect to such excess, either by way of distribution, PRO TANTO assignment of
claims, subrogation or otherwise, as shall result in each Bank receiving in
respect of the Notes, the Bond and the Guaranties held by it each such Bank's
proportionate payment as contemplated by this Credit Agreement; PROVIDED that if
all or any part of such excess payment is thereafter recovered by the Obligors
from such Bank, such disposition and arrangements shall be rescinded and the
amount restored to the extent of such recovery, but without interest.
ANY AND ALL RIGHTS TO REQUIRE THE AGENT OR THE BANKS TO EXERCISE THEIR
RESPECTIVE RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES
THE LOANS AND/OR THE BOND, PRIOR TO EXERCISING THEIR RIGHTS OF SETOFF, ARE
HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
SECTION 12. THE AGENT.
12.1 AUTHORIZATION. 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 under
any of the other Credit Documents and any related documents delegated to the
Agent, together with such powers as are reasonably incident thereto, PROVIDED
that no duties or responsibilities not expressly assumed herein or therein shall
be implied to have been assumed by the Agent. The relationship between the Agent
and the Banks is and shall be that of agent and principal only, and nothing
contained in this Credit Agreement or any of the other Credit Documents shall be
construed to constitute the Agent as a trustee for any Bank. The Obligors shall
make all payments in respect of the Obligations to the Agent, and may rely upon
consents, modifications and amendments executed by the Agent on the Banks'
behalf, and in dealing with the Agent as herein provided.
12.2 EMPLOYEES AND AGENT. The Agent may exercise its powers and execute its
duties by or through employees or Agent and shall be entitled to take, and to
rely on, advice of counsel concerning all matters pertaining to its rights and
duties under this Credit Agreement and the other Credit Documents. 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
shall be paid by the Obligors.
12.3 NO LIABILITY. The Agent will execute its duties and responsibilities
hereunder with the same care it exercises for loans or credit facilities for its
own account and risk. Neither 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 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 any of the other Credit Documents, or in connection
herewith or therewith, or be responsible for the consequences of any oversight
or error of judgment whatsoever, except that such Agent or such other Person, as
the case may be, may be liable for losses due to its willful misconduct or gross
negligence.
12.4 NO REPRESENTATIONS. The Agent shall not be responsible for the
execution or validity or enforceability of this Credit Agreement, the Notes, the
Bond, any of the other Credit Documents or any instrument at any time
constituting, or intended to constitute, collateral security for the Notes, the
Bond or the Guaranties, or for the value of any such collateral security or for
the validity, enforceability or collectibility of any such amounts owing with
respect to the Notes, the Bond or the Guaranties, or for any recitals or
statements, warranties or representations made herein or in any of the other
Credit Documents or in any certificate or instrument hereafter furnished to it
by or on behalf of the Obligors, 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 the Notes, the Bond or the Guaranties. The
Agent shall not be bound to ascertain whether any notice, consent, waiver or
request delivered to it by the Obligors or any holder of any of the Notes, the
Bond or the Guaranties 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 credit worthiness or financial condition of the Obligors.
Each Bank acknowledges that it has, independently and without reliance upon the
Agent or any other Bank, and based upon such information and documents as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Credit Agreement.
12.5 PAYMENTS.
12.5.1 A payment by the Obligors to the Agent hereunder or any of the
other Credit Documents for the account of any Bank shall constitute a payment to
such Bank. The Agent agrees promptly to distribute to each Bank such Bank's PRO
RATA share of payments received by the Agent for the account of the Banks except
as otherwise expressly provided herein or in any of the other Credit Documents.
12.5.2 If in the reasonable opinion of the Agent the distribution of
any amount received by it in such capacity hereunder, under the Notes, the Bond,
the Guaranties, or under any of the other Credit Documents might expose it to
liability, it may refrain from making distribution until its right to make
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.
12.5.3 Notwithstanding anything to the contrary contained in this
Credit Agreement or any of the other Credit Documents, any Bank that fails (a)
to make available to the Agent its PRO RATA share of any Loan or the Bond, or
(b) to comply with the provisions of SECTION 12 with respect to making
dispositions and arrangements with the other Banks, where such Bank's share of
any payment received, whether by setoff or otherwise, is in excess of its PRO
RATA share of such payments due and payable to all of the Banks, in each case
as, when and to the full extent required by the provisions of this Credit
Agreement, shall be deemed delinquent (a "Delinquent Bank") and shall be deemed
a Delinquent Bank until such time as such delinquency is satisfied. A Delinquent
Bank shall be deemed to have assigned any and all payments due to it from the
Obligors, whether on account of outstanding Loans, the Bond, unpaid
reimbursement obligations to the Agent, interest, fees or otherwise, to the
remaining nondelinquent Banks for application to, and reduction of, their
respective PRO RATA shares of all outstanding Loans and the Bond. The Delinquent
Bank hereby authorizes the Agent to distribute such payments to the
nondelinquent Banks in proportion to their respective PRO RATA shares of all
outstanding Loans and the Bond. A Delinquent Bank shall be deemed to have
satisfied in full a delinquency when and if, as a result of application of the
assigned payments to all outstanding Loans and the Bond of the nondelinquent
Banks, the Banks' respective PRO RATA shares of all outstanding Loans and the
Bond have returned to those PRO RATA shares in effect immediately prior to such
delinquency and without giving effect to the nonpayment causing such
delinquency.
12.6 HOLDERS OF NOTES AND PORTIONS OF THE BOND. The Agent may deem and
treat the payee of any Note and the holder of an interest in the Bond as the
absolute owner or purchaser thereof for all purposes hereof until it shall have
been furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
12.7 INDEMNITY. The Banks ratably agree hereby to indemnify and hold
harmless the Agent from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which such Agent has not been reimbursed by the Obligors as
required by SECTION 13), and liabilities of every nature and character arising
out of or related to this Credit Agreement, the Notes, the Bond, or any of the
other Credit Documents or the transactions contemplated or evidenced hereby or
thereby, or the Agent's actions taken hereunder or thereunder, except to the
extent that any of the same shall be directly caused by the Agent's willful
misconduct or gross negligence.
12.8 AGENT AS BANK. In its individual capacity, BankBoston shall have the
same obligations and the same rights, powers and privileges in respect to its
Commitments and the Loans and Bond Advances made by it, and as the holder of any
of the Notes and interests in the Bond, as it would have were it not also the
Agent.
12.9 RESIGNATION. The Agent may resign at any time by giving sixty (60)
days' prior written notice thereof to the Banks and the Obligors. Upon any such
resignation by the Agent, a successor Agent shall be appointed by the Majority
Banks. The successor Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations hereunder. If
no successor Agent(s) shall have been so appointed by the Majority Banks and
shall have accepted such appointment within thirty (30) days after the
applicable retiring Agent's giving of notice of resignation, then the last
retiring Agent may, on behalf of the Banks, appoint a successor Agent; and if no
successor Agent is appointed hereunder by the last retiring Agent within thirty
(30) days, then the other Banks may, by vote of a majority of those other Banks,
on behalf of all of the Banks, appoint a successor Agent. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring Agent's
resignation, the provisions of this Credit Agreement and the other Credit
Documents shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Agent.
12.10 NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Bank hereby
agrees that, upon learning of the existence of a Default or an Event of Default
or any fact, circumstance or condition which would likely result in the
occurrence of an Event of Default, it shall promptly notify the Agent thereof.
The Agent hereby agrees that upon receipt of any notice under this SECTION
12.10, it shall promptly notify the other Banks of the existence of such Default
or Event of Default.
12.11 DUTIES IN THE CASE OF ENFORCEMENT.
12.11.1 In case one or more Events of Default occur and continue, and
whether or not acceleration of the Obligations shall have occurred, the Agent
shall, if (i) so requested by all of the Banks, and (ii) the Banks have provided
to the Agent such additional indemnities and assurances against expenses and
liabilities as the Agent may reasonably request, proceed to enforce the
provisions of the Credit Documents and exercise all or any such other legal and
equitable and other rights or remedies as it may have. Such Banks may direct the
Agent in writing as to the method and the extent of any such exercise of its
rights, the Banks hereby agreeing to indemnify and hold the Agent harmless from
all liabilities incurred in respect of all actions, except for the Agent's
willful misconduct or gross negligence, taken or omitted in accordance with such
directions, PROVIDED that the Agent need not comply with any such direction to
the extent that the Agent reasonably believes the Agent's compliance with such
direction to be unlawful or commercially unreasonable in any applicable
jurisdiction.
12.11.2 Notwithstanding anything contained in SECTION 12.11.1 above to
the contrary, in case one or more Events of Default occur and continue, and the
Banks fail to unanimously agree on a particular action or course of action to be
taken by the Agent, then the Agent shall set a time at which the Agent shall
establish a telephone conference call between the Agent and all of the Banks for
the purpose of discussing what action(s) should be taken as a result of such
Event of Default. The decision of the Banks shall be confirmed in writing by the
Banks to the Agent. In the event that the Banks are unable to unanimously agree
on a course of action to be taken as a result of such Event of Default, then in
such event, the Banks will continue to discuss the issues and will meet within
four (4) business days of such telephone conference for the purpose of
discussing alternative courses of action and reaching an agreement on the course
of action to take. If no agreement is reached at the meeting of the Banks
required in the immediately preceding sentence, then in such event the course of
action supported by the Majority Banks shall be followed by the Agent, and all
of the Banks shall take such actions as are necessary, if any, to comply with
the course of action supported by the Majority Banks, including without
limitation the acceleration of all indebtedness under the Banks' respective
Notes.
12.12 NO INTEREST IN FEES. The Banks hereby acknowledge that they shall
have no interest or rights in the Agent's fee provided for in SECTION 4, which
fee shall be retained by the Agent solely for its own account.
12.13 AGENT'S POWERS. Except as provided hereafter, the Agent may, in its
reasonable discretion and without the consent of the Banks or any of them, with
reasonably contemporaneous notice to each Bank, give or withhold any other
waivers, consents and approvals, amend the Credit Documents, and exercise or
refrain from exercising rights and take or refrain from taking action with
respect to the Loans, the Bond, and the Credit Documents. As to any matters
provided for in the preceding sentence, the Agent shall in all cases be fully
protected in acting, or in refraining from acting, in accordance with the
written instructions of such Majority Banks and such instructions of such
Majority Banks and any action taken or failure to act pursuant thereto shall be
binding on all of the Banks. Notwithstanding the foregoing, the Agent agrees
that it will not, without prior notice to and the consent of all of the Banks,
take any of the following actions: (a) amend any provision of the Credit
Documents to change the principal amount of or extend the maturity of any of the
Notes or the Bond, any commitment, or of any of the Obligors' obligations here-
or thereunder or make any other material amendment or modification of the Credit
Documents; (b) reduce the contractual interest rate on any of the Notes or on
the Bond; (c) release any Guarantors, or release any collateral for the Loans or
the Bond, unless in accordance with the provisions of the Credit Documents
providing for such release; (d) change the definition of Majority Banks; (e)
modify any payment schedule under the Notes or the Bond; (f) waive any material
Event of Default or waive the Obligors' compliance with any financial covenant
or amend any financial covenant; or (g) amend or waive the provisions of SECTION
21 of this Credit Agreement. The Agent shall, promptly after the Agent's receipt
thereof, provide all of the Banks with copies of any proposed amendments,
consents, or waivers with respect to the Credit Documents. The Agent shall
permit the Banks, upon reasonable prior notice to the Agent, to review the
Credit Documents and the other documents relating thereto in the Agent's
possession (subject to any applicable confidentiality requirements binding on
the Agent with respect thereto, under law, contract, or otherwise), during the
Agent's normal business hours.
12.14 EXPENSES. The Banks agree that each will on demand reimburse the
Agent, to the extent of each such Bank's Commitment Percentage for Loans, for
any and all reasonable actual out-of-pocket costs, expenses and disbursements
which may be incurred or made by the Agent in connection with the Loans, the
Bond, or the Credit Documents and the transactions contemplated thereby and any
action which may be taken by the Agent to collect the amounts owing to the Agent
in connection therewith, such amounts to be payable to the extent the Agent has
not been reimbursed for such amounts at such time by or on behalf of the
Obligors. The Banks shall not be obligated to reimburse the Agent for any of the
so-called "overhead", incidental and/or routine costs of administering the Loans
or the Bond under the Credit Documents which are not specifically allocable to
the Loans or the Bond or the Credit Documents and which do not entail
out-of-pocket expenditures or disbursements by the Agent.
12.15 INTEREST IN COLLATERAL. The Banks shall have no interest in any
property as such taken by the Agent as collateral for the Loans or for the Bond,
or for any other loans or extensions of credit made to or for the Obligors, or
in any property in the Agent's possession or control, or in any deposit held or
other indebtedness owing by the Agent, which may be or become collateral for or
otherwise available for payment of the Loans or the Bond by reason of the
general description of secured obligations contained in any security agreement
or other agreement or instrument held by the Agent or by reason of the right of
set-off, counterclaim or otherwise. Notwithstanding any other provisions of this
Credit Agreement, if any such property, deposit or indebtedness or the proceeds
thereof shall be applied in reduction of the Loans or the Bond, then each Bank
shall be entitled to a share of such application determined by reference to its
Commitment Percentage for Loans and Commitment Percentage for Bond, as the case
may be. Nothing contained in this Credit Agreement shall impair or otherwise
affect the obligations of Obligors to the Agent arising under the Credit
Documents, the validity of any collateral security in favor of the Agent or the
perfection and priority of any security interest in favor of the Agent.
12.16 CO-AGENTS. At any time during the term of this Credit Agreement when
there is more than one Agent hereunder, any rights or powers which have been
delegated or granted to the Agents may be exercised by the action of the Agents
as they shall mutually agree. In the event the Agents do not mutually agree as
to the method or manner in which any such right or power should be exercised,
then either Agent may independently proceed with its proposed action upon
obtaining the written consent of the Majority Banks to such proposed action.
SECTION 13. EXPENSES.
The Obligors agree to pay (a) the reasonable costs of producing and
reproducing this Credit Agreement, the other Credit Documents and the other
agreements and instruments mentioned herein, (b) the reasonable fees, expenses
and disbursements of any Bank's counsel or the Agent's Special Counsel or any
local counsel to the incurred in connection with the preparation, administration
or interpretation of the Credit Documents and other instruments mentioned
herein, each closing hereunder, and amendments, modifications, approvals,
consents or waivers hereto or hereunder, (c) the fees, expenses and
disbursements of the Agent incurred by the Agent in connection with the
preparation or interpretation of the Credit Documents and other instruments
mentioned herein, (d) all reasonable out-of-pocket expenses (including appraisal
fees, investment banking fees and reasonable attorneys' fees and costs, which
attorneys may be employees of any Bank or the Agent) incurred by any Bank or the
Agent in connection with (i) the enforcement of or preservation of rights under
any of the Credit Documents against the Obligors or the administration thereof
after the occurrence of a Default or Event of Default and (ii) any litigation,
proceeding or dispute whether arising hereunder or otherwise, in any way related
to any Bank's or the Agent's relationship with the Obligors, (e) all reasonable
fees, expenses and disbursements of any Bank or the Agent incurred in connection
with UCC searches, UCC filings or mortgage recordings, and (f) the reasonable
expenses of all examinations of the Obligors' business operations and assets,
whether or not performed by the Banks' or the Agent's employees. The covenants
of this SECTION 13 shall survive payment or satisfaction of payment of amounts
owing with respect to the Notes and the Bond.
SECTION 14. INDEMNIFICATION.
The Obligors, jointly and severally, agree to indemnify and hold harmless
the Agent and the Banks from and against any and all claims, actions and suits
whether groundless or otherwise, and from and against any and all liabilities,
losses, damages and expenses of every nature and character arising out of this
Credit Agreement or any of the other Credit Documents or the transactions
contemplated hereby including, without limitation, (a) any actual or proposed
use by the Obligors of the proceeds of any of the Loans or of the Bond, or (b)
the Obligors entering into or performing this Credit Agreement or any of the
other Credit Documents, in each case including, without limitation, the
reasonable fees and disbursements of counsel and allocated costs of internal
counsel incurred in connection with any such investigation, litigation or other
proceeding, other than litigation commenced by the Obligors against the Banks
which seeks enforcement of any of the rights of the Obligors hereunder or under
any other of the Credit Documents and is determined adversely to the Banks in a
final nonappealable judgment and except to the extent such claims, damages,
liabilities and expenses result from a Bank's gross negligence or willful
misconduct. In litigation, or the preparation therefor, the Banks and the Agent
shall be entitled to select their own counsel and, in addition to the foregoing
indemnity, the Obligors jointly and severally agree to pay promptly the
reasonable fees and expenses of all such counsel of the Agent and the Banks in
respect of litigation subject to the foregoing indemnity, and shall be obligated
to pay for the legal fees of the Banks (in addition to the Agent's legal fees)
in the event that the Banks and the Agent conclude under advice of counsel that
they have a conflict of interest. If, and to the extent that the obligations of
the Obligors under this SECTION 14 are unenforceable for any reason, the
Obligors hereby agree to make the maximum contribution to the payment in
satisfaction of such obligations which is permissible under applicable law.
SECTION 15. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Notes, in the Bond, in any of the other Credit Documents or in any documents
or other papers delivered by or on behalf of the Obligors pursuant hereto shall
be deemed to have been relied upon by the Banks and the Agent, notwithstanding
any investigation heretofore or hereafter made by any of them, and shall survive
the making by the Banks of any of the Loans and issuance of the Bond, as herein
contemplated, and shall continue in full force and effect so long as any amount
due under this Credit Agreement or the Notes, the Bond, or any of the other
Credit Documents remains outstanding or any Bank has any obligation to make any
Loans or any Bond Advances. All statements contained in any certificate or other
paper delivered to any Bank or the Agent at any time by or on behalf of the
Obligors pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by the Obligors
hereunder.
SECTION 16. ASSIGNMENT AND PARTICIPATION.
16.1 CONDITIONS TO ASSIGNMENT BY BANKS. Except as provided herein, each
Bank may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its Commitment Percentage for Loans, Commitment for Loans,
Commitment Percentage for Bond, and Commitment for Bond, and the same portion of
the applicable Loans and of the Bond at the time owing to it, and the Notes and
share of the Bond held by it) PROVIDED that (a) each such assignment shall be of
a constant, and not a varying, percentage of all the assigning Bank's rights and
obligations under this Credit Agreement, (b) the parties to such assignment
shall execute and deliver to the Agent, for recording in the Register (as
defined in SECTION 16.3), an Assignment and Acceptance, substantially in the
form of EXHIBIT D hereto (an "Assignment and Acceptance"), together with any
Notes or Guaranties subject to such assignment, and (c) the assigning Bank shall
pay any expenses reasonably incurred by the Obligors in connection with each
such assignment, (d) no Eligible Assignee or other transferee of any Bank's
rights shall be entitled to receive any greater payment under SECTIONS 4.2(B),
4.6 or 4.7 than such Bank would have been entitled to receive with respect to
the rights transferred, unless such transfer is made with the Obligors' prior
written consent. 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 16.3, be released from its obligations under this Credit
Agreement.
16.2 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 and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Credit Agreement, the other Credit Documents or any other instrument or
document furnished pursuant hereto; (b) the assigning Bank makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Obligors or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the performance or observance by
the Obligors or any other Person primarily or secondarily liable in respect of
any of the Obligations of any of their obligations under this Credit Agreement
or any of the other Credit Documents or any other instrument or document
furnished pursuant hereto or thereto; (c) such assignee confirms that it has
received a copy of this Credit Agreement, together with copies of the most
recent financial statements referred to in SECTION 5.8, and in SECTION 6.1, 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 Credit 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 Credit Agreement and the other Credit
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 Credit 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.
16.3 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 (a) the Commitment
Percentages for Loans of, and principal amount of the Loans owing to the Banks
from time to time; and (b) the Commitment Percentages for Bond of, and principal
amount of the Bond owing to the Banks from time to time. The entries in the
Register shall be conclusive, in the absence of manifest error, and the
Obligors, 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 Credit Agreement.
The Register shall be available for inspection by the Obligors and the Banks at
any reasonable time and from time to time upon reasonable prior notice. Upon
each such recordation, the assigning Bank agrees to pay to the Agent a
registration fee in the sum of $100.
16.4 NEW NOTES. Upon its receipt of an Assignment and Acceptance executed
by the parties to such assignment (together with, with respect to Loans, each
Note subject to such assignment, and with respect to the Bond, each of the
Guaranties subject to such assignment), the Agent shall (a) record the
information contained therein in the Register, and (b) give prompt notice
thereof to the Obligors and the Banks (other than the assigning Bank). Within
five (5) Business Days after receipt of such notice, the Obligors, at their own
expense, shall execute and deliver to the Agent, in exchange for each
surrendered Note and/or Guaranty, a new Note to the order of, and/or Guaranty in
favor of, as the case may be, such Eligible Assignee in an amount equal to the
amount assumed by such Eligible Assignee pursuant to such Assignment and
Acceptance and, if the assigning Bank has retained some portion of its
obligations hereunder, a new Note to the order of, and/or Guaranty in favor of,
as the case may be, the assigning Bank in an amount equal to the amount retained
by it hereunder. Such new Notes and new Guaranties shall provide that they are
replacements for the surrendered Notes and surrendered Guaranties, 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 Assignment and
Acceptance and shall otherwise be in substantially the form of the assigned
Notes and assigned Guaranties. Within five (5) days of issuance of any new Notes
or new Guaranties pursuant to this SECTION 16.4, the Obligors shall deliver an
opinion of counsel, addressed to the Banks and the Agent, relating to the due
authorization, execution and delivery of such new Notes and new Guaranties and
the legality, validity and binding effect thereof, in form and substance
satisfactory to the Banks. The surrendered Notes and Guaranties shall be
canceled and returned to the Obligors.
16.5 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 Credit Agreement and the other Credit Documents, PROVIDED that (a)
the Agent shall have given its prior written consent to such participation, (b)
any such sale or participation shall not affect the rights and duties of the
selling Bank hereunder to the Obligors, (c) the only rights granted to the
participant pursuant to such participation arrangements with respect to waivers,
amendments or modifications of the Credit 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 for Loans 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, (d) no
participant shall have the right to grant further participations or assign its
rights, obligations or interests under such participation to other Persons, (e)
the Obligors, the Agent and the other Banks shall continue to deal solely and
directly with such Bank in connection with Bank's rights and obligations under
this Credit Agreement, (f) no participant pursuant to SECTION 16.5 or other
transferee of any Bank's rights shall be entitled to receive any greater payment
under SECTIONS 4.2(B), 4.6 or 4.7 than such Bank would have been entitled to
receive with respect to the rights transferred, unless such transfer is made
with the Obligors' prior written consent, and (g) the Obligors shall not be
responsible for any expenses of the Banks or the Agent associated with any such
sale or participation.
16.6 DISCLOSURE. The Obligors agree that in addition to disclosures made in
accordance with standard banking practices any Bank may disclose information
obtained by such Bank pursuant to this Credit Agreement to assignees or
participants and potential assignees or participants hereunder; PROVIDED that
such assignees or participants or potential assignees or participants shall
agree (a) to treat in confidence such information, (b) not to disclose such
information to a third party, and (c) not to make use of such information for
purposes of transactions unrelated to such contemplated assignment or
participation.
16.7 MISCELLANEOUS ASSIGNMENT PROVISIONS. 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 Credit Documents for its account, deliver to
the Obligors and the Agent certification as to its exemption from deduction or
withholding of any United States federal income taxes. If any Reference Bank
transfers all of its interest, rights and obligations under this Credit
Agreement, the Agent shall, in consultation with the Obligors and with the
consent of the Obligors and the Majority Banks, appoint another Bank to act as a
Reference Bank hereunder. Anything contained in this SECTION 16.7 to the
contrary notwithstanding, any Bank may at any time pledge all or any portion of
its interest and rights under this Credit Agreement (including all or any
portion of its Notes and/or its Guaranties) to any of the twelve Federal Reserve
Banks organized under Section 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 Credit Documents. 16.8
ASSIGNMENT BY OBLIGORS. No Obligor shall assign or transfer any of its rights or
obligations under any of the Credit Documents without the prior written consent
of each of the Banks.
16.9 FOREIGN PERSONS. If any Bank is not incorporated or organized under
the laws of the United States of America or a state thereof, then such Bank
shall deliver to the Obligors and the Agent the following:
(a) Two (2) duly completed copies of United States Internal Revenue
Service Form 1001 or 4224, or successor form as the case may be, certifying in
each case that such person is entitled to receive payments under this Credit
Agreement, the Notes, and the Bond, without deduction or withholding of any
United States federal income taxes.
(b) A duly completed Internal Revenue Service Form W-8 or W-9 or
successor form, as the case may be, to establish an exemption from United States
backup withholding tax.
Each such Bank that delivers to the Obligors and the Agent a Form 1001
or 4224 and Form W-8 or W-9 pursuant to this SECTION 16.9 further undertakes to
deliver to the Obligors and the Agent two (2) further copies of Forms 1001 or
4224 and Form W-8 or W-9, or successor forms, or other manner of certification,
as the case may be, on or before the date that any such form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent form previously delivered by it to the Obligors and the Agent. Such Forms
1001 or 4224 shall certify that such Bank is entitled to receive payments under
this Credit Agreement without deduction or withholding of any United States
federal income taxes. The foregoing documents need not be delivered in the event
any change in treaty, law, or regulation or official interpretation thereof has
occurred which renders all such forms inapplicable or which would prevent such
Bank from delivering any such form with respect to it, or such Bank advises the
Obligors that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax, and in the case of a Form W-8
or W-9, establishing an exemption from United States backup withholding tax.
Until such time as the Obligors and the Agent have received such forms
indicating that payments hereunder are not subject to United States withholding
tax or are subject to such tax at a rate reduced by an applicable tax treaty,
the Obligors shall withhold taxes from such payments at the applicable statutory
rate.
For any period with respect to which a Bank has failed to provide the
Obligors or the Agent with the appropriate forms referred to in this SECTION
16.9 (unless such failure is due to a change in treaty, law or regulation
occurring after the date on which such form originally was required to be
provided), the Obligors shall not be obligated to make any payments to such Bank
under SECTION 4.2(B).
SECTION 17. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes shall be in writing and shall be delivered in
hand, mailed by United States certified first class mail, postage prepaid, sent
by overnight courier, or sent by telegraph, telecopy, facsimile or telex and
confirmed by delivery via courier or postal service, addressed as follows:
(a) if to the Obligors, to: Bacou USA, Inc.
10 Thurber Boulevard
Smithfield, Rhode Island 02917
Attn: General Counsel
with a copy (which copy Edwards & Angell, LLP
shall not constitute notice 2800 BankBoston Plaza
to the Obligors) to: Providence, Rhode Island 02903
Attn: Susan A. Keller, Esq.,
or at such other address for notice as the Obligors shall last have furnished in
writing to the Person giving the notice;
(b) if to the Agent to: BankBoston, N.A.
One BankBoston Plaza
Providence, Rhode Island 02903
Attn: Commercial Loan Department,
with a copy to: David M. Gilden, Esquire
Partridge Snow & Hahn LLP
180 South Main Street
Providence, Rhode Island 02903
or such other address for notice as such party shall last have furnished in
writing to the Person giving the notice; and
(c) if to any Bank, at such Bank's address set forth on
SCHEDULE 1 hereto, or such other address for notice as such Bank shall have last
furnished in writing to the Person giving the notice, in any event with a copy
to:
David M. Gilden, Esquire
Partridge Snow & Hahn LLP
180 South Main Street
Providence, Rhode Island 02903.
Any such notice or demand shall be deemed to have been duly given or made and to
have become effective (i) if delivered by hand, overnight courier or facsimile
to a responsible officer of the party to which it is directed, at the time of
the receipt thereof by such officer or the sending of such facsimile and (ii) if
sent by registered or certified first-class mail, postage prepaid, on the third
Business Day following the mailing thereof.
SECTION 18. MISCELLANEOUS.
18.1 HEADINGS. The captions in this Credit Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
18.2 ACCOUNTING TERMS. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP. Where any accounting determination
or calculation is required to be made under this Credit Agreement, such
determination or calculation (unless otherwise provided) shall be made in
accordance with GAAP, except that if because of a change in GAAP, any Obligor
would have to alter a previously utilized accounting method or policy in order
to remain in compliance with GAAP, such determination or calculation shall
continue to be made in accordance with such Obligor's previous accounting
methods or policy.
18.3 REPLACEMENT NOTE. Upon receipt of an affidavit of an officer of either
of the Banks or of the Agent as to the loss, theft, destruction or mutilation of
any Note or any other security document which is not of public record, and in
the case of such loss, theft, destruction or mutilation, upon surrender and
cancellation of such Note or other security document, the Obligors shall issue,
in lieu thereof, a replacement Note or other security document in the same
principal amount thereof and otherwise of like tenor. The Bank requiring such
replacement Note from the Obligors shall indemnify the Obligors against the
recovery or discovery of such loss, stolen, destroyed or mutilated Note, and the
making of a claim by any other Person thereunder.
18.4 EXAMINATIONS. The Banks may, at their election, which election shall
be exercised in their sole and absolute discretion, conduct commercial finance
examinations of the business operations and assets of each of the Obligors in
each Loan Year, such examinations to be performed by officers, employees and/or
agents of the Banks or the Agent. The results of such examinations must be
satisfactory to the Banks and the Agent, in their sole and absolute discretion.
The Obligors agree that they shall be jointly and severally responsible to pay
to the Agent the costs of such examinations, upon receipt of a request for
payment thereof from either the Agent or the Banks. Upon the occurrence of any
Event of Default, the Banks or the Agent may, at their election, which election
may be exercised in their sole and absolute discretion, conduct new examinations
of the operations and assets of the Obligors, all at the sole cost and expense
of the Obligors.
SECTION 19. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Credit Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought.
SECTION 20. ENTIRE AGREEMENT, ETC.
The Credit Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in SECTION 21.
SECTION 21. CONSENTS, AMENDMENTS, WAIVERS, ETC. Any consent or approval
required or permitted by this Credit Agreement or the Letter of Credit Documents
to be given by all of the Banks may be given, and any term of this Credit
Agreement, the other Credit Documents or any other instrument related hereto or
mentioned herein may be amended, and the performance or observance by the
Obligors of any terms of this Credit Agreement, the other Credit Documents or
such other instrument or the continuance of any Default or Event of Default may
be waived (either generally or in a particular instance and either retroactively
or prospectively) with, but only with, reasonably contemporaneous notice to each
Bank, the written consent of the Obligors, and the written consent of the
Majority Banks. Notwithstanding the foregoing, the rate of interest on and the
term of the Notes and the Bond, the amount of the Commitments of the Banks, and
the amount of any fees hereunder may not be changed without the written consent
of the Obligors and the written consent of each Bank affected thereby; nor shall
any material Default or Event of Default be waived, or material modification or
amendment be made to the Credit Documents without the written consent of each
Bank; the definition of Majority Banks may not be amended without the written
consent of all of the Banks; and the amount of the Agent's fee payable for the
Agent's account and SECTION 13 may not be amended without the written consent of
the Agent. No waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon. No course of dealing or delay or
omission on the part of the Agent or any Bank in exercising any right shall
operate as a waiver thereof or otherwise be prejudicial thereto. No notice to or
demand upon the Obligors shall entitle the Obligors to other or further notice
or demand in similar or other circumstances.
SECTION 22. DEFEASANCE. When all Obligations have been paid, performed and
reasonably determined by the Banks to have been indefeasibly discharged in full,
and if at the time no Bank continues to be committed to extend any credit to any
obligor hereunder or under any other of the Credit Documents, then this Credit
Agreement shall terminate. Notwithstanding any provision in this SECTION 22 or
any other provision of the Agreement to the contrary, SECTIONS 2.11, 12.3, 12.7,
12.14, 13, 14, and 15 shall survive the termination of this Credit Agreement.
SECTION 23. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one clause
or provision hereof shall be held invalid or unenforceable in whole or in part
in any jurisdiction then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Credit Agreement in any jurisdiction.
SECTION 24. GOVERNING LAW.
This Credit Agreement and, except as otherwise specifically provided
therein, each of the other Credit Documents are contracts under the laws of the
State of Rhode Island and shall for all purposes be construed in accordance with
and governed by the laws of said State (excluding the laws applicable to
conflicts or choice of law). THE OBLIGORS AGREE THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER CREDIT DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE STATE OF RHODE ISLAND OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE
OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE OBLIGORS BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION 17. EACH OBLIGOR HEREBY WAIVES ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT
SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
SECTION 25. WAIVER OF JURY TRIAL.
EACH OBLIGOR HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS CREDIT
AGREEMENT, THE NOTES, THE BOND OR ANY OF THE OTHER CREDIT DOCUMENTS, ANY RIGHTS
OR OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW, EACH OBLIGOR HEREBY WAIVES ANY RIGHT
IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING
SENTENCE ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. EACH OBLIGOR (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE AGENT HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH BANK OR THE AGENT WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (B)
ACKNOWLEDGES THAT THE AGENT AND THE BANKS HAVE BEEN INDUCED TO ENTER INTO THIS
CREDIT AGREEMENT, THE OTHER CREDIT DOCUMENTS TO WHICH IT IS A PARTY BY, AMONG
OTHER THINGS, THE WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
[THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK.]
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
Witnessed by: BACOU USA, INC.
/s/ A. W. Hebert By: /s/ Walter Stepan /s/ Philip B. Barr
- ----------------------------- -----------------------------------------------
Walter Stepan Philip B. Barr
Co-Chairman, Executive Vice
President, CEO President, COO
UVEX SAFETY MANUFACTURING, INC.
/s/ A. W. Hebert By: /s/ W. Stepan /s/ Philip B. Barr
- ----------------------------- -----------------------------------------------
Walter Stepan Philip B. Barr
Chairman Vice Chairman
BANKBOSTON, N.A.
By: /s/ Gary A. Pirri
-------------------------------------------
Gary A. Pirri
Director
By: /s/ Mark J. Meiklejohn
-------------------------------------------
Mark J. Meiklejohn
Vice President
KEYBANK NATIONAL ASSOCIATION
By: /s/ Richard A. McNaughton
- ----------------------------- -------------------------------------------
Richard A. McNaughton
Vice President
EXHIBIT 4.2
BOND PURCHASE AGREEMENT
This Bond Purchase Agreement dated as of August 24, 1999 by and among the
Rhode Island Industrial Facilities Corporation, a public corporation and
governmental agency of the State of Rhode Island and Providence Plantations (the
"State"), duly organized and validly existing under the laws of the State (the
"Issuer"), Uvex Safety Manufacturing, Inc., a corporation duly organized and
validly existing under the laws of the State of Delaware (the "Obligor"), Bacou
USA, Inc., a corporation duly organized and validly existing under the laws of
the State of Delaware (the "Guarantor") and BankBoston, N.A., a national banking
association duly organized and validly existing under the laws of the United
States of America as agent for itself and KeyBank, N.A., a national banking
association duly organized and validly existing under the laws of the United
States of America (the "Purchaser"), is made under the circumstances summarized
in the following recitals (the capitalized terms not defined herein are as
defined in the Agreement hereinafter described):
WHEREAS, the Issuer proposes to issue, sell and deliver its $30,000,000
Rhode Island Industrial Facilities Corporation Industrial Development Revenue
Bond (Uvex Safety Manufacturing, Inc. Project-1999 Series) (the "Bond") pursuant
to its authorizing resolution adopted by its Board of Directors on August 3,
1999 (the "Resolution") and apply the proceeds derived from such sale to assist
the Obligor in financing the purchase approximately 15.8 acres, more or less, of
land located at or adjacent to 10 Thurber Boulevard in the Town of Smithfield,
Rhode Island (the "Premises"), the purchase and renovation of the building and
facilities located thereon containing 127,000 square feet, more or less,
including the construction of an approximately 44,000 square foot addition
thereto (the "Facilities") and the purchase and installation of machinery,
furnishings and equipment at the Facilities (such purchase, construction,
renovation and equipping is herein referred to as the "Project"); and
WHEREAS, the Obligor and the Issuer have entered into a Lease Agreement
dated as of August 24, 1999 (the "Agreement") whereby the Issuer agrees to lease
the Project to the Obligor and to apply the proceeds of the Bond to finance the
Project; and
WHEREAS, the Obligor, by the Agreement, is required to make lease payments
in the amounts and at the times sufficient to pay the principal of and premium,
if any, and interest on the Bond; and
WHEREAS, the Issuer, by an Assignment of Lease Agreement and Revenues from
the Issuer to the Purchaser dated as of August 24, 1999 (the "Assignment"), will
assign to the Purchaser as security for the Bond all right, title and interest
of the Issuer in and to the Agreement (with certain exceptions therein
contained), including the Agreement itself, and the Revenues, including the
lease payments to be made by the Obligor thereunder; and
WHEREAS, as additional security for the payment of principal and interest
on the Bond, the Guarantor will enter into a Guaranty Agreement with the
Purchaser dated as of August 24, 1999 (the "Guaranty").
NOW, THEREFORE, intending to be legally bound, the parties hereto covenant
and agree as follows (provided that any obligation of the Issuer created by or
arising out of this Bond Purchase Agreement shall never constitute a general
debt of the Issuer nor give rise to any pecuniary liability of the Issuer but
shall be payable solely out of the Revenues):
SECTION 1. PURCHASE OF THE BOND. Subject to the conditions hereof, the
Issuer will issue and deliver the Bond, up to a maximum principal amount of
$30,000,000 upon the terms set forth in the form of the Bond for up to the
purchase price equal to the principal amount of the Bond. Upon delivery of the
Bond as described in Section 2 (the "Closing") and thereafter, the Purchaser
will make advances to the Obligor in an aggregate amount of up to $30,000,000
for payment of Project costs pursuant to the terms of the Agreement and the
Assignment. Each advance by the Purchaser shall cause the principal amount of
the Bond to be increased by an amount equal to the amount of the advance and
each advance shall constitute a partial payment of the purchase price of the
Bond. The Bond shall be in the form of one Bond, registered in the name of the
Purchaser in substantially the form attached hereto as Exhibit A.
SECTION 2. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. The Purchaser's
obligation to purchase the Bond and to make advances to the Obligor is subject
to (i) the accuracy of all representations, warranties, statements and opinions
in the agreements, instruments, certificates and opinions (including, without
limitation, this Bond Purchase Agreement, the Resolution, the Bond, the
Agreement, the Guaranty and the Assignment) now or hereafter delivered in
connection with the issuance of the Bond or any request for an advance and which
will be included in the transcript of proceedings pertaining to the Bond (the
"Bond Documents") on the date of the Closing and the date of each advance, (ii)
the condition that no event of default exists under the Bond Documents and no
condition exists which, with the giving of notice or lapse of time or both,
would constitute any such event of default on the date of the Closing and the
date of each advance, (iii) the performance by the Issuer and the Obligor of all
agreements to be performed by them under the Bond Documents at or prior to the
Closing and on or prior to the date of each advance, (iv) delivery of the Bond
for payment no later than August 24, 1999 at the offices of Tillinghast Licht &
Semonoff Ltd., One Park Row, Providence, Rhode Island 02903 or at such other
location agreeable to the parties hereto, unless such date is extended in
writing by the Purchaser and (v) the satisfaction of the following conditions:
(a) at or prior to the Closing, the Issuer shall furnish to the
Purchaser (1) a written approving opinion of Tillinghast Licht & Semonoff
Ltd. (the "Bond Counsel") as to legality of and tax-exempt status of
interest on the Bond from State of Rhode Island income taxation, dated as
of the date of Closing and in their customary form and (2) a copy of the
Resolution adopted by the Issuer authorizing the issuance of the Bond and
delivery of executed Bond Documents to which the Issuer is a party;
(b) at or prior to the Closing, the Obligor shall furnish to the
Purchaser and the Issuer (1) a written opinion of counsel for the Obligor,
dated the date of the Closing and in form acceptable to Bond Counsel and
the Purchaser, (2) executed Bond Documents to which the Obligor is a party
and (3) a certified copy of such actions or proceedings taken by the
Obligor authorizing execution, delivery and performance of the obligations
set forth in the Bond Documents to which each of the Obligors is a party;
(c) at or prior to the Closing, the Guarantor shall furnish to the
Purchaser and the Issuer (1) the Guaranty, in form acceptable to Bond
Counsel and the Purchaser, (2) executed Bond Documents to which the
Guarantor are a party, (3) a certified copy of such actions or proceedings
taken by the Guarantor authorizing the execution, delivery and performance
of the obligations set forth in the Bond Documents to which the Guarantor
are a party, and (4) a written opinion of counsel to the Guarantor dated
the date of the Closing and in form acceptable to Bond Counsel and the
Purchaser;
(d) all legal documentation and proceedings in connection with the
transactions contemplated by this Bond Purchase Agreement shall be in form
and substance satisfactory to the Purchaser and the Issuer, their legal
counsel and Bond Counsel, and the Purchaser shall have received all such
originals, counterparts, originals or certified or other copies of such
Bond Documents in form and substance satisfactory to the Purchaser, as the
Purchaser or its legal counsel may reasonably request; and
(e) no event shall have occurred or information disclosed which, in
the reasonable judgment of the Purchaser, has or could, with the passage of
time, have a material adverse effect on the market value of the Bond.
SECTION 3. CONDITIONS PRECEDENT TO ISSUER'S OBLIGATION. The Issuer's
obligation to issue and deliver the Bond and perform its obligations hereunder
is subject to (i) satisfaction of the conditions set forth in Section 2 herein
(other than those conditions to be satisfied by the Issuer) and (ii)
satisfaction of the Purchaser's obligations hereunder, including delivery to the
Issuer and Bond Counsel of a duly executed investor's acknowledgment letter in
substantially the form attached hereto as Exhibit B.
SECTION 4. PAYMENT OF FEES AND EXPENSES. The Obligor agrees to pay, out of
the proceeds of the Bond or otherwise, all reasonable costs and expenses
relating to the issuance of the Bond, including all fees and expenses of the
Issuer (including an Administrative Fee in an amount equal to 1/8 of 1% of the
maximum principal amount of the Bonds) and Bond Counsel, the fees and expenses
of the Obligor's and the Purchaser's counsel, (including counsel to any
Purchaser bank) the Project Supervisor's fees, recording fees, the fee of the
Rhode Island Public Finance Management Board (1/40 of 1% of the principal amount
of the Bond) and all out-of-pocket expenditures of the parties hereto and their
respective counsel. In the event the Bond is for any reason not sold or the
proceeds thereof shall be insufficient to pay the above fees and expenses, the
Obligor agrees to be bound to pay such fees and expenses.
SECTION 5. COVENANTS OF BOND OFFERING; FURTHER ASSURANCES; REPRESENTATIONS,
WARRANTIES AND COVENANTS. Neither of the Obligor nor the Issuer has, either
directly or through any agent, offered the Bond for sale to, or solicited any
offers to make all or any part of the loan to be made pursuant to the terms of
the Bond, or to acquire the Bond or similar securities evidencing all or part of
such loan, from or otherwise approached or negotiated in respect thereof with,
any person or persons other than the Purchaser; and the Obligor and the Issuer
each agree that it will not sell or offer the Bond to, or solicit any offers to
buy any thereof from, or otherwise approach or negotiate in respect thereof
with, any other person or persons so as thereby to bring the offering or
issuance of the Bond within the provisions of Section 5 of the Securities Act of
1933, as amended. At the Purchaser's request, the Issuer and the Obligor will
execute, acknowledge when appropriate, and deliver from time to time such
instruments and documents as, in the reasonable opinion of the Purchaser, are
necessary or desirable to confirm such obligations as the Issuer and the Obligor
may have under any of the Bond Documents. All warranties, representations and
covenants made in the Bond Documents by the Issuer and the Obligor are hereby
incorporated herein by reference and may be relied upon by the Purchaser as if
made directly to or with the Purchaser.
SECTION 6. OFFER TO PREPAY UPON CHANGE IN CONTROL. If the Purchaser or any
of its affiliates shall hold the Bond on the date of a change in control, as
defined in the Agreement, the Obligor shall give written notice thereof to the
Purchaser, promptly after the occurrence of such Change in Control but in any
event within 10 days thereof. Such notice shall (a) describe in reasonable
detail the facts and circumstances giving rise to such Change of Control and the
effect thereof on the Obligors, (b) offer to prepay, on a date (the "Prepayment
Date") which shall be not less than 30 days nor more than 60 days after the date
of such notice, the principal and interest due on the Bond held by the Purchaser
and its affiliates, (c) request the Purchaser to notify the Obligor in writing,
not less than 10 days prior to the Prepayment Date, of its acceptance or
rejection of such offer and (d) inform the Purchaser that, upon the Purchaser's
receipt of such notice by the Obligor, failure to accept such offer in writing
on or before the 10th day prior to the Prepayment Date shall be deemed rejection
of such offer.
Upon its acceptance of such offer, the Purchaser shall give written notice
to the Obligor, on the fifth Business Day prior to the Prepayment Date, of the
amount of the Prepayment Price of the Bond held by it, which notice shall set
forth in reasonable detail the computation thereof. The Prepayment Price shall
be binding on the Obligor, the Issuer and the Purchaser absent manifest error.
Thereupon, each of the Obligor covenants and agrees that it will on the
Prepayment Date prepay the Bond held by the Purchaser and its affiliates by
payment of the Prepayment Price of such Bond, together with interest accrued on
the unpaid principal amount of such Bond to the Prepayment Date. (Capitalized
terms not defined in this Section 6 shall have the meanings ascribed thereto in
the Agreement.)
SECTION 7. RIGHTS AND REMEDIES. No delay or failure of the Purchaser in
exercising any right, power or privilege hereunder shall affect such right,
power or privilege, nor shall any single or partial exercise thereof or any
abandonment or discontinuance of steps to enforce such right, power or privilege
preclude any further exercise thereof or the exercise of any other right, power
or privilege. The rights and remedies of the Purchaser hereunder are cumulative
and not exclusive of any rights or remedies which the Purchaser would otherwise
have. Neither this Bond Purchase Agreement nor any provision hereof may be
changed, waived, discharged or terminated except by a statement in writing
signed by each party against which enforcement of the change, waiver, discharge
or termination is sought.
SECTION 8. EXTENT OF COVENANTS; NO PERSONAL LIABILITY. The Bond is a
special obligation of the Issuer and the principal of, premium, if any, and
interest on the Bond are payable solely from, and are secured equally by, a
pledge of the revenues and are not otherwise an obligation of the Issuer.
Anything in the Bond Documents to the contrary notwithstanding, neither the Bond
Documents nor any provision thereof shall constitute a pledge of the faith and
credit of the Issuer and the holder of the Bond shall have no right to have
taxes levied for its payment either by the Issuer or any other taxing authority
in the State. No such covenant, stipulation, obligation or agreement shall be
deemed to be a covenant, stipulation, obligation or agreement of any present or
future member, officer, agent or employee of the Issuer in his individual
capacity, and no official executing any Bond Document shall be liable personally
on the Bond Documents or be subject to any personal liability or accountability
by reason of the issuance and execution thereof.
SECTION 9. NOTICES. All notices, certificates, requests or other
communications hereunder shall be deemed to be sufficiently given when hand
delivered or when mailed by registered or certified mail, postage prepaid,
addressed as follows:
(a) As to the Issuer, at:
One West Exchange Street
Providence, Rhode Island 02903
Attention: Treasurer
(b) As to the Purchaser, at:
BankBoston, N.A.
One BankBoston Plaza
Providence, Rhode Island 02903
Attention: Mark Meiklejohn, Vice President
With a copy to:
Partridge Snow & Hahn
180 South Main Street
Providence, Rhode Island 02903
Attention: David Gilden, Esquire
(c) As to the Obligor, at:
Uvex Safety Manufacturing, Inc.
c/o Bacou USA, Inc.
10 Thurber Blvd.
Smithfield, Rhode Island 02917
Attention: Winfield W. Major, Secretary
or to such other place or places as the Issuer, the Obligor and the Purchaser
may designate by notice given hereunder for the purpose of receiving notices,
certificates, requests or other communications. Any notice given hereunder must
be addressed and delivered to all the parties to this Bond Purchase Agreement.
SECTION 10. APPLICABLE LAWS. This Bond Purchase Agreement shall be
construed and enforced in accordance with and shall be governed by the laws of
the State.
SECTION 11. PARTIES IN INTEREST. All the terms and provisions of this Bond
Purchase Agreement shall be binding upon and shall inure to the benefit of the
Issuer, the Obligor, the Guarantor, the Purchaser and their respective
successors and assigns and shall survive the issuance, sale and delivery of the
Bond.
SECTION 12. COUNTERPARTS. This Bond Purchase Agreement may be signed in any
number of counterparts with the same effect as if the signature thereto and
hereto were upon the same instrument. Complete sets of counterparts shall be
lodged with the Issuer, the Obligor, and the Purchaser.
<PAGE>
WITNESS the due execution hereof this 24th day of August, 1999.
RHODE ISLAND INDUSTRIAL FACILITIES
CORPORATION
Attest: By: /s/ John F. Sheehan
------------------------ ----------------------------------------
Secretary Treasurer
UVEX SAFETY MANUFACTURING, INC.
WITNESS: By: /s/ W. Stepan /s/ Philip B. Barr
------------------------- ----------------------------------------
Title: Chairman Vice Chairman
BACOU USA, INC.
WITNESS: By: /s/ W. Stepan /s/ Philip B. Barr
------------------------ ---------------------------------------
Title: Co-Chairman, Executive Vice
President, CEO President, COO
BANKBOSTON, N.A.
WITNESS: By: /s/ Mark J. Meiklejohn
------------------------ ----------------------------------------
Title: Vice President
EXHIBIT 11
BACOU USA, INC.
STATEMENT RE: COMPUTATION OF PER SHARE EARNINGS
-----------------------------------------------
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
--------------------------- ------------------------------
1998 1999 1998 1999
----------- ----------- ------------- -------------
Basic:
<S> <C> <C> <C> <C>
Weighted average shares outstanding 17,604 17,627 17,599 17,623
=========== =========== ============= =============
Net income $6,675 $7,635 $15,510 $21,017
=========== =========== ============= =============
Per share amount $ 0.38 $ 0.43 $ 0.88 $ 1.19
=========== =========== ============= =============
Diluted:
Weighted average shares outstanding 17,604 17,627 17,599 17,623
Net effect of dilutive stock options based on the
treasury stock method using the average market
price 184 67 123 88
----------- ----------- ------------- -------------
Total diluted shares 17,788 17,694 17,722 17,711
=========== =========== ============= =============
Net income $6,675 $7,635 $15,510 $21,017
=========== =========== ============= =============
Per share amount $0.38 $0.43 $ 0.88 $ 1.19
=========== =========== ============= =============
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
(Replace this text with the legend)
</LEGEND>
<CIK> 0001006027
<NAME> Bacou USA, Inc.
<MULTIPLIER> 1,000
<CURRENCY> U.S. Dollars
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<EXCHANGE-RATE> 1
<CASH> 4,830
<SECURITIES> 0
<RECEIVABLES> 45,661
<ALLOWANCES> 1,224
<INVENTORY> 43,136
<CURRENT-ASSETS> 97,871
<PP&E> 71,706
<DEPRECIATION> 0
<TOTAL-ASSETS> 367,942
<CURRENT-LIABILITIES> 55,068
<BONDS> 126,015
0
0
<COMMON> 18
<OTHER-SE> 175,224
<TOTAL-LIABILITY-AND-EQUITY> 367,942
<SALES> 201,422
<TOTAL-REVENUES> 201,422
<CGS> 106,036
<TOTAL-COSTS> 106,036
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6,342
<INCOME-PRETAX> 32,797
<INCOME-TAX> 11,780
<INCOME-CONTINUING> 21,017
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 21,017
<EPS-BASIC> 1.19
<EPS-DILUTED> 1.19
</TABLE>
