<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended June 30, 1998
--------------------------------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
--------------------------------------------
Commission file number 0-27738
--------------------------------------------
THE JPM COMPANY
(Exact name of registrant as specified in its charter)
Pennsylvania 23-1702908
- ------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S.Employer
incorporation or organization) Identification No.)
155 North 15th Street, Lewisburg,PA 17837
- ------------------------------------------------------------------------
(Address of principal executive offices) (ZIP Code)
Registrants telephone number, including area code 717-524-8225
----------------------
- ------------------------------------------------------------------------
(Former address of principal executive offices) (ZIP Code)
Former name, former address and former fiscal year, if changed since last
report.
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by section 10 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
------------------ ------------------
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of
the latest practicable date.
At June 30, 1998, 7,051,354 shares of common stock, $.000067 par value, were
issued and outstanding.
<PAGE>
Item 1. Financial Statements
<TABLE>
THE JPM COMPANY
CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS
(unaudited-in thousands)
Three Months Ended Nine Months Ended
June 30, June 30, June 30, June 30,
<CAPTION> 1998 1997 1998 1997
-------- --------- -------- ---------
<S> <C> <C> <C> <C>
Net sales $ 32,333 $ 28,761 $ 94,172 $ 85,642
Cost of sales 26,883 22,218 78,097 68,046
------- --------- -------- ---------
Gross profit 5,450 6,543 16,075 17,596
Selling, general and 3,339 3,256 10,156 8,102
administrative expenses
Secondary offering cost - - 400 -
Plant shutdown expenses - - 1,412 -
------- --------- -------- ---------
Operating profit 2,111 3,287 4,107 9,494
Other income (expense)
Interest expense (531) (195) (1,238) (451)
Other (net) (13) (186) 35 63
------- --------- -------- ---------
(544) (381) (1,203) (388)
------- --------- -------- ---------
Income before income taxes 1,567 2,906 2,904 9,106
Provision for income taxes 595 1,162 1,103 3,642
------- --------- -------- ---------
Net income $ 972 $ 1,744 $ 1,801 $ 5,464
======= ========= ======== =========
Basic earnings per share $ 0.14 $ 0.25 $ 0.26 $ 0.79
======= ========= ======== =========
Diluted earnings per share $ 0.13 $ 0.23 $ 0.24 $ 0.73
======= ========= ======== =========
Average number of shares
outstanding (Basic) 7,047,000 6,893,000 7,011,000 6,885,000
Average number of shares
outstanding (Diluted) 7,348,000 7,545,000 7,460,000 7,436,000
</TABLE>
The accompanying notes are an integral part of these statements.
Page 2
<PAGE>
THE JPM COMPANY
CONDENSED CONSOLIDATED BALANCE SHEET
(in thousands)
<TABLE>
<CAPTION>
June 30, September 30,
1998 1997
-------------- ---------------
(unaudited)
ASSETS
CURRENT ASSETS
<S> <C> <C>
Cash $ 3,174 $ 543
Accounts receivable, net 16,289 12,692
Inventories, net 24,144 19,328
Other current assets 3,507 2,045
--------- ---------------
Total current assets 47,114 34,608
Property, plant and equipment, net 19,109 13,552
Excess of cost over fair value of assets 15,160 4,807
acquired, net
Other assets 1,974 1,163
--------- ---------------
$ 83,357 $ 54,130
========= ===============
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Short-term borrowings $ 34,097 $ 8,182
Current maturities of long-term debt 543 1,517
Accounts payable 5,887 6,841
Accrued expenses 5,086 3,924
Deferred income taxes 1,322 1,532
--------- ---------------
Total current liabilities 46,935 21,996
Long-term debt 4,813 2,805
Other long-term liabilities 1,369 1,098
--------- ---------------
53,117 25,899
SHAREHOLDERS' EQUITY
Preferred stock, no par value, 10,000,000
shares authorized; none issued and outstanding - -
Common Stock, $.000067 par value,
40,000,000 shares authorized, issued
7,051,000 at June 30, 1998 and
6,970,000 at September 30, 1997 1 -
Additional paid-in capital 17,451 17,187
Retained earnings 12,845 11,044
Cumulative translation adjustment (57) -
--------- ---------------
Total shareholders' equity 30,240 28,231
--------- ---------------
$ 83,357 $ 54,130
========= ===============
</TABLE>
The accompanying notes are an integral part of these statements.
Page 3
<PAGE>
THE JPM COMPANY
CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS
(unaudited-in thousands)
<TABLE>
<CAPTION>
Nine Months Ended
June 30, June 30,
1998 1997
------- -------
Cash flows from operating activities:
<S> <C> <C>
Net income $ 1,801 $ 5,464
Adjustments to reconcile net income to net cash
provided by (used in) operating activities:
Depreciation and amortization 2,187 1,334
Foreign currency translation (gain)loss (45) (154)
Loss (gain) on sale of property, plant and equipment (1) 31
Deferred taxes (57) 5
Deferred compensation expense 106 74
Change in assets and liabilities,
net of effects from businesses acquired:
(Increase) decrease in accounts receivable (3,282) (1,155)
(Increase) decrease in inventories (1,794) (2,630)
(Increase) decrease in other assets (1,002) (298)
Increase (decrease) in accounts payable (1,998) (286)
Increase (decrease) in accrued expenses 837 180
Increase (decrease) in income taxes payable - (471)
--------- ---------
Net cash provided by (used in) operating activities (3,248) 2,094
--------- ---------
Cash flows from investing activities:
Payments for assets and business acquired, net of cash
acquired of $1,233 in fiscal 1998 (15,267) -
Capital expenditures (5,374) (2,593)
Proceeds from sale of property, plant and equipment 124 211
Loans to related parties - 206
Deferred compensation plan contributions (105) (77)
--------- ---------
Net cash provided by (used in) investing (20,622) (2,253)
activities
Cash flows from financing activities:
Net borrowings (repayments) under credit facilities 25,915 476
Proceeds from issuance of long-term debt 2,895 19
Principal payments on long-term debt (2,573) (523)
Proceeds from exercise of stock options 264 253
--------- ---------
Net cash provided by (used in) financing activities 26,501 225
--------- ---------
Increase (decrease) in cash 2,631 66
Cash at beginning of period 543 1,411
--------- ---------
Cash at end of period $ 3,174 $ 1,477
========= =========
</TABLE>
The accompanying notes are an integral part of these statements.
Page 4
<PAGE>
Accounting Policies
- -------------------
The consolidated balance sheet as of June 30, 1998 and the related
consolidated statements of operations and cash flows for the three and nine
month periods ended June 30, 1998 and June 30, 1997, have been prepared by the
Company without audit. In the opinion of management, the financial statements
include all of the adjustments necessary for fair presentation. All adjustments
made were of a normal recurring nature. Interim results are not necessarily
indicative of results for a full year. These financial statements should be read
in conjunction with the audited financial statements of the Company and the
notes thereto for the fiscal year ended September 30, 1997, included in the
Company's Form 10-K dated November 24, 1997.
Acquisition
- -----------
In June 1998, the Company acquired all of the outstanding stock of Antrum
Interface, 725 Ltd. ("Antrum"), a Canadian manufacturer of cable assemblies and
wire harnesses, in a transaction accounted for as a purchase in accordance with
APB 16 "Business Combinations". The Company paid cash consideration of
$16,500,000. This consideration does not include contingent cash consideration
of up to $4,500,000 which may be paid pursuant to an earn out arrangement
included in the stock purchase agreement. This arrangement provides for the
Company to pay additional consideration based on operating profit targets, as
defined, for the period from June 1, 1997 through November 30, 2000. Such
contingent consideration, if earned, will be treated as additional purchase
price when earned. The excess of purchase price including the $4.5 million earn
out over fair value of the net assets acquired is amortized on a straight-line
basis over 20 years.
The unaudited results of operations on a pro forma basis as if Antrum had
been acquired as of the beginning of the respective periods below are as
follows:
<TABLE>
<CAPTION>
(in thousands)
Nine Months Ended
June 30, June 30,
1998 1997
------- -------
<S> <C> <C>
Net sales $ 111,392 $ 97,800
Operating income 10,963 10,297
Net income 1,733 5,034
Net income per diluted common share 0.24 0.68
</TABLE>
Inventories
- -----------
Inventories are valued at the lower of cost or market as determined on the
first-in, first-out basis. Cost includes raw materials, direct labor and
manufacturing overhead. The Company generally provides reserves for inventory
considered to be in excess of 12 months of future demand.
<TABLE>
<CAPTION>
June 30, September 30,
(in thousands) 1998 1997
------------- --------------
<S> <C> <C>
Finished goods $ 7,061 $ 4,103
Work-in-process 3,777 2,810
Raw material and supplies 15,368 13,108
Valuation reserves (2,062) (693)
--------- ----------
$ 24,144 $ 19,328
</TABLE>
Earnings Per Share Information (SFAS 128)
- -----------------------------------------
The Company has adopted Statement of Financial Accounting Standards No. 128,
"Earnings per Share" (SFAS 128), which establishes new standards for computing
and presenting earnings per share ("EPS"). SFAS 128 replaces the presentation of
primary EPS with a presentation of basic EPS. It also requires dual presentation
of basic and diluted EPS on the face of the income statement for all entities
with a complex capital structure. SFAS 128 is effective for financial statements
issued for periods ending after December 15, 1997. All prior period EPS
information has been restated in accordance with SFAS 128. The difference
between the basic average number of shares outstanding and the diluted average
number of shares outstanding is the treasury stock method calculation of the
unexercised stock options granted under the Company's 1993 and 1995 stock option
plans.
Page 5
<PAGE>
Short-Term Borrowings
- ---------------------
On April 9, 1998, the Company increased its revolving line of credit to permit
the Company to draw up to $60,000,000. This expanded facility is a revolving
credit facility maturing in three years. The borrowing rate under the terms of
the agreement is an adjustable rate that varies between an interest rate of
prime plus 0% up to .25% or a LIBOR rate plus .875% up to 2.0%.
Closing of South Carolina Manufacturing Facility
- ------------------------------------------------
On March 27, 1998, the Company announced plans to cease operations at its
Winnsboro, S.C. manufacturing location and subsequently transfer all business to
other plants in Pennsylvania, California and Mexico.
The Plant ceased production on June 26, 1998. Supervisory and breakdown crews
remained at the facility until July 17, 1998. The Company has accrued expenses
totaling approximately $1.4 million in closing and severance costs. These costs
are reflected in the income statement as a separate line item described as
"Plant shutdown expenses". At June 30, 1998, $700,000 of such expenses have
been incurred and charged against the reserve. The remaining cost are expected
to be incurred in the fourth quarter.
Recent Accounting Pronouncements
- --------------------------------
On June 15, 1998, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standard No. 133, Accounting for Derivative
Instruments and Hedging Activities (FAS 133). FAS 133 is effective for all
fiscal quarters of all fiscal years beginning after June 15, 1999. FAS 133
requires that all derivative instruments be recorded on the balance sheet at
their fair value. Changes in the fair value of derivatives are recorded each
period in current earnings or other comprehensive income, depending on whether a
derivative is designated as part of a hedge transaction and if it is, the type
of hedge transaction. Management of the Company anticipates that due to its
limited use of derivative instruments, the adoption of FAS 133 will not have a
significant effect on the Company's results of operations or its financial
position.
Page 6
<PAGE>
Item 2.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
Results of Operations
Net sales for the three and nine months ended June 30, 1998 increased
$3,572,000 or 12.4% and $8,530,000 or 10.0% to $32,333,000 and $94,172,000,
respectively, compared to the same periods one year earlier. The net increase
for the three month period was primarily the result of the one month inclusion
of sales of Antrum Interface 725, Ltd. after the acquisition on June 1, 1998 and
internal sales growth through increased volumes with existing customers. The
nine month period increase was primarily the result of internal sales growth
through increased volumes with existing customers and the one month inclusion of
sales of Antrum Interface 725, Ltd. after the acquisition on June 1, 1998.
Gross profit for the three and nine months ended June 30, 1998 decreased
$1,093,000 or -16.7%, and decreased $1,521,000 or -8.6% to $5,450,000 and
$16,075,000, respectively, when compared to the same periods one year earlier.
Gross profit as a percentage of net sales decreased to 17.0% from 22.8% and
17.1% from 20.6%, respectively for the three and nine month periods compared to
the same periods one year earlier. The decrease in gross profit as a percentage
of net sales for the three and nine month periods was primarily the result of an
increase in labor costs related to new product start-up costs, a 4% wage
increase in direct labor granted in October to substantially all of the
Company's Pennsylvania and South Carolina employees and lower direct labor
productivity related to the new product start-up and support.
Selling, general and administrative ("SG & A") expenses for the three and
nine months ended June 30, 1998 increased $83,000 or 2.5% and $2,054,000 or
25.4% to $3,339,000 and $10,156,000, respectively, when compared to the same
periods one year earlier. As a percentage of sales, SG&A was 10.3% compared to
11.3% for the three month period and 10.8% from 9.5% for the nine month period
compared to the same periods one year earlier. The nine month comparison
excludes the $400,000 charge for the write-off of expenses related to the
cancelled secondary offering and the $1,412,000 South Carolina plant shutdown
expense. In addition to the charge for costs related to the cancelled secondary
offering and the plant shutdown expense, the increased SG & A expense was
primarily attributable to compensation expense necessary to support the
Company's growth both domestically and internationally, travel expense, costs
related to hiring new employees and to higher commissions paid on the sale of
certain of the Company's products.
Since the announced closing of the South Carolina manufacturing facility on
March 27, 1998, the company's total actual cost through June 30, 1998 amounted
to $700,000, compared to the accrued estimated cost of $1,412,000. All
production has ceased and only minimal supervisory personnel remain at the
facility. The remaining plant closing costs are expected to occur in the fourth
quarter.
Effective June 1, 1998, the Company acquired Antrum Interface, 725 Ltd., a
privately-held manufacturer of cable assemblies and wire harnesses based in
Toronto, Ontario, Canada. Under the terms of the agreement, the Company paid US
$16,500,000 and will pay up to an additional US $4,500,000 through an earn-out
formula based on Antrum's earnings through September 30, 2000.
Interest expense for the three and nine months ended June 30, 1998
increased $336,000 or 172.3% and $787,000 or 174.5% to $531,000 and $1,238,000,
respectively, when compared to the same periods one year earlier. As a
percentage of sales, interest expense increased to 1.7% from 0.7% for the three
month period and 1.3% from 0.5% for the nine month period compared to the same
periods one year earlier. The increase is primarily attributable to borrowings
related to increases in finished goods inventory and the borrowings for the
acquisition of Antrum Interface, 725 Ltd.
The Company's effective tax rate for the three and nine month period
remained at 38%.
Net income for the three months ending June 30, 1998 amounted to $972,000
and net earnings were $1,801,000 for the nine months ending June 30, 1998. The
nine month period includes the $400,000 first quarter write-off of the cancelled
secondary offering ($0.03 per share) and the $1,412,000 write-off relating to
the South Carolina plant shutdown ($0.12 per share). This compares to net
earnings of $1,744,000 and $5,464,000 for the three and nine month periods one
year earlier. Without the respective write-offs of both the South Carolina
facility and the cancelled secondary offering in the nine month period, net
earnings would have been $2,924,000 or a decrease of -46.5% in comparison to the
same period one year earlier. The net earnings decrease during the nine month
period was primarily due to the decreased margins and increased SG & A expense
as discussed above. Due to the reasons discussed under gross profit and under
SG & A expenses, the Company anticipates that its net profit will continue to be
lower than historical norms for at least the next quarter.
Page 7
<PAGE>
Diluted earnings per share for the three and nine month periods decreased
to $0.13 and $0.24, respectively, in comparison to $0.23 and $0.73 for the three
and nine month periods one year earlier, respectively. Excluding the $0.12 per
share charge for the write-off of expenses related to the closure of the South
Carolina facility and the $0.03 per share charge for the write-off of expenses
related to the cancelled secondary offering taken in the current year nine month
period, diluted earnings per share would have amounted to $0.39.
Year 2000 Issues
- ----------------
The Year 2000 Issue is the result of computer programs being written using two
digits rather than four to define the applicable year. Any of the Company's
computer programs that have date-sensitive software may recognize a date using
"00" as the year 1900 rather than the year 2000. This could result in a system
failure or miscalculations causing disruptions in operations, including, among
other things, a temporary inability to process transactions, send invoices, or
engage in similar normal business activities.
Based on a recent assessment, the Company determined that it will be required to
replace portions of its software so that its computer systems will properly
utilize dates beyond December 31, 1999. The Company presently believes that with
modifications to existing software, the Year 2000 Issue can be mitigated.
However, if such modifications and conversions are not made, or are not
completed timely, the Year 2000 Issue could have a material impact on the
operations of the Company.
The Company has initiated formal communications with all of its significant
suppliers and large customers to determine the extent to which the Company is
vulnerable to those third parties' failure to remediate their own Year 2000
Issue. The Company's total Year 2000 project costs include the estimated costs
and time associated with the impact of a third party's Year 2000 Issue on the
Company, and are based on presently available information. However, there can be
no guarantee that the systems of other companies on which the Company's systems
rely will be timely converted, or that a failure to convert by another company,
or a conversion that is incompatible with the Company's systems, would not have
a material adverse effect on the Company. The Company has determined it has no
exposure to contingencies related to the Year 2000 Issue for the products it has
sold.
The Company plans to complete the Year 2000 project by December 31, 1998. The
total cost of the Year 2000 project is estimated at $100,000, substantially all
of which is to purchase a revision of its current software, and is being funded
through operating cash flows.
The costs of the project and the date on which the Company plans to complete the
Year 2000 modifications are based on management's best estimates, which were
derived utilizing assumptions of future events including the continued
availability of certain resources, third party modification plans and other
factors. However, there can be no guarantee that these estimates will be
achieved and actual results could differ materially from these plans. Specific
factors that might cause such material differences include, but are not limited
to, the availability and cost of personnel trained in this area, the ability to
locate and correct all relevant computer codes, and similar uncertainties.
Page 8
<PAGE>
Liquidity and Capital Resources
- -------------------------------
Operating activities during the nine months of fiscal 1998 utilized cash in
the amount of $3,248,000, primarily attributable to increases in accounts
receivable and inventory, as compared to cash provided in the amount of
$2,094,000 during the same period one year earlier. Working capital at June 30,
1998 was $179,000, a decrease of $12,433,000 from September 30, 1997. During
the first nine months of fiscal 1998, the Company had capital expenditures of
$5,374,000, comprised mainly of costs related to the remodeling and expansion of
a small manufacturing facility into the Company's corporate office and the
purchase of telephone and teleconferencing equipment. On June 1, 1998, the
Company acquired Antrum Interface 725 Ltd., a Toronto, Ontario, Canada based
company in the amount of $16,500,000.
Borrowings under the Company's line of credit at June 30, 1998 were $34,097,000.
$32,500,000 was borrowed under the terms of the line of credit agreement at a
LIBOR rate of 6.57%, the remainder was borrowed at an interest rate of 8.25%
against a borrowing availability of $60,000,000.
On April 9, 1998, the Company increased its revolving line of credit to permit
the Company to draw up to $60,000,000. This expanded facility is a revolving
credit facility maturing in three years. The borrowing rate under the terms of
the agreement is an adjustable rate that varies between an interest rate of
prime plus 0% up to .25% or a LIBOR rate plus .875% up to 2.0%.
The Company believes cash flow from operations and funds available from its bank
line of credit will be sufficient to satisfy its working capital requirements
and capital expenditure needs for at least the next twelve months. However,
depending upon its rate of growth, acquisitions and profitability, the Company
may require additional equity or debt financing to meet its working capital
requirements or capital expenditure needs, including the possible need for
additional manufacturing capacity.
Recent Accounting Pronouncements
- --------------------------------
On June 15, 1998, the Financial Accounting Standards Board (FASB) issued
Statement of Financial Accounting Standard No. 133, Accounting for Derivative
Instruments and Hedging Activities (FAS 133). FAS 133 is effective for all
fiscal quarters of all fiscal years beginning after June 15, 1999. FAS 133
requires that all derivative instruments be recorded on the balance sheet at
their fair value. Changes in the fair value of derivatives are recorded each
period in current earnings or other comprehensive income, depending on whether a
derivative is designated as part of a hedge transaction and if it is, the type
of hedge transaction. Management of the Company anticipates that due to its
limited use of derivative instruments, the adoption of FAS 133 will not have a
significant effect on the Company's results of operations or its financial
position.
"Safe Harbor" Statement under the Private Securities Litigation Reform Act
of 1995.
This release may contain forward-looking statements that involve risks and
uncertainties. Among the important factors which could cause actual results to
differ materially from those forward-looking statements are the impact of
competitive products and pricing, product demand, the presence of competitors
with greater financial resources, availability of additional sources of
financing and commercialization risks, costs associated with integration and
administration of acquired operations, capacity and supply constraints or
difficulties, the results of financing efforts and other factors detailed in the
Company's filings with the Securities and Exchange Commission including recent
filings of Forms 10-K and 10-Q.
Page 9
<PAGE>
PART II - OTHER INFORMATION
Item 1. N/A
Item 2. N/A
Item 3. N/A
Item 4. N/A
Item 5. N/A
Item 6. Exhibits and Reports on Form 8-K.
---------------------------------------
(a) Amended and Restated Articles of Incorporation
of the Company
Amended and Restated Bylaws of the Company
Specimen Certification of Common Stock of the Company
Financial Data Schedule
Employment Agreement dated June 1, 1998, by and between
Charles W. McDonald and The JPM Company
Employment Agreement dated July 1, 1998, by and between
Therese M. Miller and The JPM Company
Employment Agreement dated July 1, 1998, by and between
Jose R. Loza Jimenez and The JPM Company
Revolving Line of Credit Business Loan Agreement by and
` between The JPM Company and CoreStates
(b) Reports on Form 8-K: On June 12, 1998, the Company filed
notice of the execution of acquisition for the Antrum
Interface, 725 Ltd.
Reports on Form 8-K/A: On August 3, 1998, the Company
filed notice of the execution of acquisition for the
Antrum Interface, 725 Ltd.
Page 10
<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.
THE JPM COMPANY
---------------
Registrant
Date: August 14, 1998 By: /s/ John H. Mathias
--------------------- ----------------------
John H. Mathias
Chairman of the Board and Chief Executive
Officer (Principal Executive Officer)
Date: August 14, 1998 By:/s/ William D. Baker
--------------------- -----------------------
William D. Baker
Vice President, Chief Financial Officer
and Treasurer(Principal Financial Officer)
Page 11
<PAGE>
EXHIBIT INDEX
Exhibit numbers are in accordance with the
Exhibit Table in Item 601 of Regulation S-K
Exhibit No. Exhibit
Description
3.1.* Amended and Restated Articles of Incorporation
of the Company
3.2.* Amended and Restated Bylaws of the Company
4.1.* Specimen Certification of Common Stock of the Company
27 Financial Data Schedule
99.1 Employment Agreement dated June 1, 1998, by and between
Charles W. McDonald and The JPM Company
99.2 Employment Agreement dated July 1, 1998, by and between
Therese M. Miller and The JPM Company
99.3 Employment Agreement dated July 1, 1998, by and between
Jose R. Loza Jimenez and The JPM Company
99.4 Revolving Line of Credit Business Loan Agreement by and
` between The JPM Company and CoreStates
* Filed as part of the Company's Registration Statement filed on Form S-1 on
February 9, 1996 and declared effective April 30, 1996.
Page 12
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS OF THE JPM COMPANY AND SUBSIDIARIES AND
IS QUALIFIED IN ITS ENTIRETY BE REFERENCE TO SUCH FINANCIAL STATEMENTS.
CONSOLIDATED FINANCIAL STATEMENTS OF THE JPM COMPANY AND SUBSIDIARIES AND
IS QUALIFIED IN IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> SEP-30-1998
<PERIOD-START> OCT-01-1997
<PERIOD-END> JUN-30-1998
<CASH> 3,174
<SECURITIES> 0
<RECEIVABLES> 16,541
<ALLOWANCES> 252
<INVENTORY> 24,144
<CURRENT-ASSETS> 47,114
<PP&E> 29,075
<DEPRECIATION> 10,371
<TOTAL-ASSETS> 83,357
<CURRENT-LIABILITIES> 46,935
<BONDS> 0
0
0
<COMMON> 1
<OTHER-SE> 30,240
<TOTAL-LIABILITY-AND-EQUITY> 83,357
<SALES> 94,172
<TOTAL-REVENUES> 94,172
<CGS> 78,097
<TOTAL-COSTS> 90,065
<OTHER-EXPENSES> (35)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 1,238
<INCOME-PRETAX> 2,904
<INCOME-TAX> 1,103
<INCOME-CONTINUING> 1,801
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,801
<EPS-PRIMARY> .26
<EPS-DILUTED> .24
</TABLE>
12
EMPLOYMENT AGREEMENT
This Agreement ("Agreement"), dated the 1st day of June, 1998, is
between ANTRUM INTERFACE 725 LTD. ("Company"), an Ontario corporation, THE JPM
COMPANY ("JPM"), a Pennsylvania corporation, and CHARLES W. McDONALD
("Employee").
RECITALS
1. Employee was previously employed by Antrum Interface 725 Ltd. ("Antrum") and
was a principal stockholder of Antrum;
2. The JPM Company has acquired the entire business and assets of Antrum,
which business shall be conducted as an separate subsidiary corporation of The
JPM Company;
3. Employee was a key executive in Antrum with expertise in Antrum's business
operations and the Company desires to assure continuance of Employee's service
in connection with such business;
4. The Company desires to employ Employee, and Employee desires to perform
services for the Company in a position which will allow Employee access to
various trade secrets and confidential information belonging to the Company and
which will require Employee to perform services of a unique and special nature;
and
5. The parties agree that covenants against competition, disclosure of
confidential information, solicitation of employees, and solicitation of
customers is essential to the growth and stability of the business of Antrum
during the first year after its acquisition by JPM and to the continuing
viability of such business whenever the employment to which this Agreement
relates is terminated;
NOW THEREFORE, the parties, intending to be legally bound, agree as
follows:
1. Employment. The Company hereby employs Employee and the Employee hereby
accepts upon the terms and conditions contained in this Agreemen
2. Term. The term of this Agreement shall be from the date of closing until
September 30, 2000 and subject to the terms and conditions hereof.
3. Duties. During the employment period, the Employee will devote his full
working time and best efforts to the Company in fulfilling the duties of
his position, which shall include such duties as may from time to time be
assigned by the Company. The Employee shall retain the position of
President of the Company until the Board of Directors of the Company decide
otherwise. The Employee shall also be designated a Vice President of JPM
unless and until otherwise determined by its Board of Directors.
4. Compensation.
4.1. Salary. The Employee's base salary shall be one hundred seventy-five
thousand dollars ($175,000.00) (Canadian) per year payable in monthly
installments, subject to increase by the Board of Directors, which
shall review the salary periodically.
4.2. Benefits. Employee will be eligible to participate, to the extent it is
legal and permitted by the benefit contracts, in all benefit programs
as set forth in this Agreement of the Company which are in effect for
its executive personnel from time to time. Employee shall be entitled
each year to vacation for a period not inconsistent with the normal
policy of the Company in effect from time to time, but no less than
five (5) weeks per year together with the regular holidays applicable
to all Antrum employees, during which period Employee's compensation
shall be paid in full. If any modifications of the benefit package
result in a net reduction in compensation to the Employee, the Company
will pay Employee a cash bonus to make up the difference.
4.3. Special Benefits.
4.3.1. Car. Employee shall receive a car allowance in the amount of seven
thousand five hundred dollars ($7,500.00) per year.
4.3.2. Stock Options. Employee shall receive 40,000 stock options pursuant
to Employee Stock Option Plan of 1995.
4.3.2.1. Employee and JPM had agreed that Employee would receive 20,000
stock options as part of the sale of Antrum and employment
agreement. In order to give the Employee the option bargained
for during the period of this Agreement and to comply with the
Employee Stock Option Plan of 1995, it is necessary for JPM to
grant an option for more than the 20,000 shares bargained for,
subject to Employee's agreement to return or forfeit the
additional shares. Accordingly, the Employee agrees that he
will only exercise the option to purchase no more than 20,000
shares unless JPM otherwise agrees. Employee further agrees
that this limitation shall be binding upon him, his heirs and
assigns.
5. Acknowledgement. Employee acknowledges that the Company's business and
services are highly specialized, that the identity and particular needs of
the Company's customers and suppliers are not generally known and that the
documents and information regarding the Company's customers, suppliers,
services and methods of operation, sales, pricing and costs are highly
confidential and constitute trade secrets. Employee further acknowledges
that the services rendered to the Company by Employee have been or will be
of a special and unusual character which have unique value to the Company
and that Employee has had or will have access to trade secrets and
confidential information belonging to the Company, the loss of which cannot
adequately be compensated by damages in an action at law.
6. Covenant Against Competition. During the term of Employee's employment
with the Company and for a period of three (3) years
from the voluntary or involuntary termination of Employee's agreement with
the Company for any reason whatsoever,
Employee will not directly or indirectly, own, manage, operate, control, be
employed by, perform services for, consult with, solicit business for,
participate in, or be connected with the ownership, management, operation, or
control of any business which performs the services and/or manufactures products
materially similar to or competitive with those provided by the Company in any
location where the Company has had an office or has sold products or provided
services to customers during the period Employee is employed by the Company,
provided, however, Employee may own shares of stock in such companies so long as
such shareholding constitutes less than five percent (5%) of the outstanding
shares of any such company and so long as Employee's role is that of passive
investor. In addition, Company may waive any restrictions hereunder, which
waiver shall not be unreasonably withheld.
7. Covenant Against Disclosure of
Confidential Information. During the term of Employee's employment with the
Company and for
- --------------------------------------------------
a period of three (3) years after the termination of Employee's employment
with the Company for any reason whatsoever, Employee shall not use for any
purpose or disclose to any person or entity any confidential information
acquired during the course of employment with the Company. Employee shall not,
directly or indirectly, copy, take, or remove from the Company's premises any of
the Company's books, records, customer lists, or any other documents or
materials. The term "confidential information" as used in this Agreement
includes, but is not limited to, records, lists, and knowledge of the Company's
current and former customers, suppliers, methods of operation, processes, trade
secrets, methods of determination of the prices, financial consideration,
profits, sales, net income, and indebtedness.
8. Non-Solicitation of Employees. During the term of Employee's employment
with the Company for a period of three (3) years from the voluntary or
involuntary termination of Employee's employment with the Company for any
reason whatsoever, Employee shall not either on his own account or for any
person, firm, partnership, corporation, or other entity solicit, interfere
with, or endeavor to cause any employee of the Company to leave his or her
employment, or induce or attempt to induce, any such employee to breach his
or her employment agreement with the Company.
9. Non-Solicitation of Customers. During the term of Employee's employment
with the Company and for a period of three (3) years from the termination
of Employee's employment with the Company for any reason whatsoever,
Employee shall not solicit, induce, or attempt to induce, any past or
current customer of the Company to cease doing business in whole or in part
through the Company, or to do business with any other person, firm,
partnership, corporation, or other entity which performs services and/or
manufactures products materially similar to or competitive with those
provided by the Company. Company may waive any restrictions hereunder,
which waiver shall not be unreasonably withheld
10. Reasonableness of Restrictions. Employee has carefully read and considered
the provisions hereof, and having done so, agrees that the restrictions set
forth in Paragraphs 6 through 9 of this Agreement, including, but not
limited to, the time periods of restriction in each of such paragraphs and
the geographical area of restrictions set forth in Paragraphs 6, are fair
and reasonable and are reasonably required for the protection of the
interests of the Company.
11. Release of Covenants. Company and The JPM Company agree to automatically
release Employee from the covenants set forth in paragraphs 6, 8, and 9
upon any material breach by JPM or Company under this agreement, which
breach shall not have been cured by the Company or JPM within 30 days of
the Company or JPM's receipt from the Employee of written notice specifying
in reasonable detail the nature of Company's or JPM's breach; or Company or
The JPM Company files for voluntary bankruptcy or reorganization; or upon
involuntary bankruptcy petition against Company or JPM, unless dismissed
within sixty (60) days of filing.
12. Compensation During Disability and Upon Death.
12.1. Compensation During Initial Disability Period. If at any time during
the term of this Agreement, Employee becomes disabled or incapacitated
or is unable for any reason to perform substantially his duties under
this Agreement and he has not breached any of the provisions of this
Agreement as set forth in paragraph 13.1.1, the Company shall continue
to compensate Employee as provided in Paragraph 4, but only as to the
first six months of Employee's disability or incapacitation ("the
Initial Disability Period"). To the extent any disability insurance
paid by the Company or The JPM Company satisfies all or a portion of
this obligation, Company shall receive credit against salary due
hereunder.
12.2. Compensation After Initial Disability Period. Effective after
expiration of the Initial Disability Period, the Company may, if
employee is still disabled or incapacitated, at its sole option, elect
to:
12.2.1. Continue payment of Employee's salary and benefits until he is able
to return to work;
12.2.2. Continue payment of Employee's salary and benefits for such period
greater than six months as the Company elects; or
12.2.3. Terminate this Agreement.
12.3. Death of Employee. If Employee should die during the term of this
Agreement, Employee's employment and the Company's
obligations hereunder shall terminate as of the date of the Employee's
death, subject to the right of his executors, successors and assigns to
exercise vested option rights to which he was entitled under the
Employees' Stock Option Plan of 1995.
13. Termination.
13.1. Conditions of Termination. This agreement may be terminated as
follows prior to the expiration of its stated term:
13.1.1. The Company may terminate this Agreement immediately for cause,
including without limitation, fraud, misrepresentation, theft or embezzlement of
the Company's assets, intentional violations of law or company policies, or a
breach of this
Agreement;
13.1.2. Either the Company or the Employee may terminate this Agreement
without cause upon ninety (90) days notice to the other
party;
13.1.3. This agreement shall terminate in the event of death or disability
of the Employee. Disability shall be the inability of the Employee
to perform his duties under this agreement because of illness or
incapacity for a period of six months.
13.2. Compensation Upon Termination. Upon termination of employment pursuant
to this Paragraph 13, Employee shall be entitled to receive all
compensation accrued and unpaid as of the date of termination. and
shall further be subject to the right of his executors, successors and
assigns to exercise vested option rights to which he was entitled under
the Employees' Stock Option Plan of 1995.
14. Change of Control. The Employee shall be entitled to severance payments, as
set forth herein, in the event of a Change in Control of the Employer or
JPM and the Employee is terminated without cause by the Purchaser/Successor
Employer.
14.1. Change in Control Definition. Change in Control shall mean any of the
following events:
14.1.1. The sale or other disposition by the Company or JPM of all or
substantially all of its assets to a single purchaser or to a
group of purchasers, other than to a corporation with respect to
which, following such sale or disposition, more than eighty
percent (80%) of the then outstanding shares of common stock and
the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors
is then owned beneficially, directly or indirectly, by all or
substantially all of the individuals who were the beneficial
owners of the outstanding Company, or JPM, common stock and voting
securities immediately prior to such sale or disposition; or
14.1.2. The acquisition in one or more transactions by any person or
group, directly or indirectly, of beneficial ownership of
twenty-five percent (25%) or more of the outstanding shares of the
combined voting power of the then outstanding voting securities of
the Company or JPM entitled to vote generally in the election of
directors, Provided, however, that for this purpose acquisition of
such a share by an employee benefit plan of the Company or JPM or
a subsidiary or affiliate of the Company or JPM or a present
significant shareholder (i.e., shareholder whose current holdings
exceed 5% of the outstanding stock) of the Company or JPM shall
not constitute a Change of Control.
14.1.3. The Company's or JPM's termination of its business and liquidation
of its assets; or
14.1.4. The reorganization, merger or consolidation of the Company or JPM
into or with another person or entity, by which reorganization,
merger or consolidation the shareholders of the Company or JPM
receive less than fifty percent (50%) of the outstanding voting
shares of the new or continuing corporation; or
14.1.5. For the purpose of paragraph 14 and its subparts, merger, sale or
acquisition of either Company or JPM by or with any other company
controlled by JPM or any of its subsidiaries shall not constitute
Change of Control.
14.2. Severance Payments Upon Change of Control and Termination. In the event
Employee is terminated without cause by the purchaser/successor after
the Change of Control, he shall receive as severance payments:
14.2.1. One years' salary, in a lump sum within 30 days of severance, if
such Change of Control occurs on or before September 1,
1999;
14.2.2. In the event the Change of Control occurs after September 1, 1999,
the Employee shall receive the salary to which he would have been
entitled for the period from Change of Control to September 1,
2000, which salary shall be paid in a lump sum within 30 days of
severance.
14.3. Termination of Employment Prior to Change of Control. If the
Employee's employment with the Employer is terminated prior to
the date on which a Change of Control occurs either
14.3.1. By the Company other than for Cause; and
14.3.2. It is reasonably demonstrated that termination of employment
14.3.2.1. Was at the request of the then existing Employer management
team or by an Unrelated Third Party who has taken steps
reasonably calculated to effect a Change of Control; or
14.3.2.2. Otherwise arose in connection with or anticipation of the Change
of Control, then
14.3.3. Such a termination shall be deemed to have occurred specifically
upon a Change of Control and the Employee shall be entitled to
Severance Pay as provided in paragraph 14.2.
15. Rights and Remedies.
15.1. Both parties recognize that the services to be rendered under this
Agreement by Employee are special, unique and are of extraordinary
character. Upon breach of any provision of this Agreement, either may,
at its option, terminate this Agreement or elect to institute and
prosecute proceedings in any court of competent jurisdiction, either in
law or equity, to obtain damages, to enforce specific performance of
the Agreement, to enjoin the other party as appropriate, and to recover
reasonable attorney's fees and the costs of prosecuting such action.
15.2. Subject to paragraph 11, termination for any cause shall not constitute
a waiver of the Company's rights under Paragraphs 6 through 9 of this
Agreement (covenants against non-competition, disclosure of
confidential information, and solicitation of employees and customers)
nor a release of Employee from his obligation hereunder. The rights and
remedies of the parties shall be cumulative and in addition to any
other rights and remedies provided by law or otherwise. A party's
failure to exercise its right to terminate this Agreement or to enforce
any provision of this Agreement for default or violation by the other
party shall not prejudice such party's right of termination or
enforcement for any further or other default or violation.
16. Miscellaneous.
16.1. Governing Law. In any action by or against The JPM Company, it is
understood and agreed that the construction and interpretation of this
Agreement shall at all times and in all respects be governed by the
laws of the Commonwealth of Pennsylvania, without giving effect to the
conflict of laws provision thereof. Venue of any action brought to
enforce this Agreement or relating to this Agreement shall be brought
exclusively in a Pennsylvania Court of Common Pleas or the U. S.
District Court for the Middle District of Pennsylvania. In any action
solely between Company and Employee, such action may be brought in the
Province of Ontario.
16.2. Assignment. This Agreement shall be binding upon and shall inure to the
benefit of the Company, JPM, and Employee, and their respective
successors and assigns. The Company shall have the right to assign its
rights hereunder to any successor or interest, whether by merger,
consolidation, sale of assets, or otherwise, with the consent of
Employee, which consent cannot be unreasonably withheld. Employee may
not assign any of its rights or delegate any of its obligations under
this Agreement without first obtaining written consent from the
Company.
16.3. Entire Agreement. This Agreement constitutes the entire agreement
between the parties respecting the employment of Employee, and there
are no representations, warranties or commitments, except as set forth
in this Agreement. This Agreement may be amended only by a writing
executed by the parties of this Agreement. No valid waiver of any
provisions of this Agreement at any time shall be deemed a waiver of
any other provision of this Agreement.
16.4. Severability. The provisions of this Agreement shall be deemed
severable and the invalidity or unenforceability of any of the
provisions hereof shall not affect the validity or enforceability of
any other provision of this Agreement.
16.5. Notices. Any notice, request, demand or other communication made under
this Agreement shall be in writing and shall be deemed to be duly given
when personally delivered to an officer of the Company or to Employee,
as the case may be, or when delivered by mail at the following
addresses:
If to the Company: If to the Employee:
Antrum Interface 725 Ltd. 1287 Abbey Road
1125 Squires Beach Road Pickering, Ontario LIX 1W5
Pickering, Ontario LIW 3T9
16.6. Effective Date. The effective date of this Agreement shall be the 1st
day of June, 1998.
IN WITNESS WHEREOF, the Company, Employee and The JPM Company have duly
executed this Agreement as of the 1st day of June, 1998.
Antrum Interface 725 Ltd.
Attest:
/s/ Charles W. McDonald
/s/ Charles w. McDonald
(Corporate Seal)
The JPM Company
Attest:
/s/ John H. Mathias
/s/ Wayne A. Bromfield
(Corporate Seal)
Witness: Employee:
/s/ Michele D. Guy /s/ Charles W. McDonald
Charles McDonald
Charles McDonald
13
EMPLOYMENT AGREEMENT
This Agreement ("Agreement"), dated the 1 day of July, 1998, is between The JPM
Company ("Company"), a Pennsylvania corporation, and Therese M. Miller
("Employee").
RECITALS
1. Company and Employee have agreed on certain terms and conditions of
employment which terms and conditions they desire to reduce to a formal
agreement.
2. Under those terms and conditions, Company has extended an offer to
Employee, and she has accepted that offer, to be Vice President of Human
Resources.
3. The company desires to employ Employee, and Employee desires to
perform services for the Company in a position which will allow Employee access
to various trade secrets and confidential information belonging to the Company
and which will require Employee to perform services of a unique and special
nature; and
4. The parties agree that covenants against competition, disclosure
of confidential information, solicitation of employees, and solicitation of
customers is essential to the growth and stability of the business of the
Company and to the continuing viability of the Company after this agreement is
terminated; NOW THEREFORE, the parties, intending to be legally bound, agree as
follows: 1. Employment. The Company hereby employs Employee and the Employee
hereby accepts employment upon the terms and conditions contained in this
Agreement. 2. Term. The term of this Agreement shall be from February 26, 1998
and shall be from year-to-year thereafter. 3. Duties. During the employment
period, the Employee will devote her full working time and best efforts to the
Company in fulfilling the duties of her position, which shall include such
duties as may from time to time be assigned by the Company. 4. Compensation.
4.1. Salary. The Employee's base salary shall be one hundred thousand dollars
($100,000) per year payable in weekly installments, subject to increase by the
Board of Directors, which shall review the salary periodically.
4.2. Incentive
Compensation. For each year of employment, Employee shall be eligible to receive
a cash bonus in an amount equal to twenty percent (20%) of her base salary,
provided that the Company satisfies its financial objectives for which the bonus
is paid, consistent with the bonus plan for corporate officers.
4.3. Benefits.
Employee will be eligible to participate, to the extent it is legal and
permitted by the benefit contracts, in all benefit programs of the Company which
are in effect for its executive personnel from time to time. Employee shall be
eligible for participation in the Non-Qualified Deferred Compensation Plan,
under which the Company shall deposit an amount equal to ten percent (10%) of
her annual salary in quarterly retroactive increments. Employee shall have the
option of depositing up to 25% of her salary into such plan.
4.3.1. Employee
shall be entitled each year to vacation for a period consistent with the normal
policy of the Company in effect from time to time, during which period
Employee's compensation shall be paid in full.
4.3.2. If any modifications of
the benefit package result in a net reduction in compensation to the Employee,
the Company will pay Employee a cash bonus to make up the difference.
4.4.Special Benefits.
4.4.1. Car. Employee shall have the option of either a car
leased by the corporation for her use or shall receive a car allowance,
consistent with the policy of the company then in effect.
4.4.2. Stock Options.
Employee shall receive 20,000 stock options pursuant to Employee Stock Option
Plan of 1995.
4.4.3. Bonus. As additional inducement to sign the contract and to
relocate to corporate headquarters, Employee will receive a signing bonus of
$20,000, which bonus will be paid within six weeks of employment. In the event
Employee voluntarily leaves the employment of the Company within one year of
employment, Employee shall repay the bonus to Company.
4.4.4. Relocation
Expenses. Employee shall receive relocation expenses to move to Lewisburg.
Expense reimbursement shall be grossed up to reimburse Employee for any taxes
assessed against the reimbursable expenses.
5. Acknowledgment. Employee
acknowledges that the Company's business and services are highly specialized,
that the identity and particular needs of the Company's customers and suppliers
are not generally known and that the documents and information regarding the
Company's customers, suppliers, services and methods of operation, sales,
pricing and costs are highly confidential and constitute trade secrets. Employee
further acknowledges that the services rendered to the Company by Employee have
been or will be of a special and unusual character which have unique value to
the Company and that Employee has had or will have access to trade secrets and
confidential information belonging to the Company, the loss of which cannot
adequately be compensated by damages in an action at law.
6. Covenant Against
Competition. During the term of Employee's employment with the Company and for a
period of two (2) years from the voluntary or involuntary termination of
Employee's agreement with the Company for any reason whatsoever, Employee will
not directly or indirectly, own, manage, operate, control, be employed by,
perform services for, consult with, solicit business for, participate in, or be
connected with the ownership, management, operation, or control of any business
which performs the services materially similar to or competitive with those
provided by the Company in any location where the Company has had an office or
has sold products or provided services to customers during the period Employee
is employed by the Company.
7. Covenant Against Disclosure of Confidential
Information. During the term of Employee's employment with the Company and for
- ---------------------------------------------------------------- a period of two
(2) years after the termination of Employee's employment with the Company for
any reason whatsoever, Employee shall not use for any purpose or disclose to any
person or entity any confidential information acquired during the course of
employment with the Company. Employee shall not, directly or indirectly, copy,
take, or remove from the Company's premises any of the Company's books, records,
customer lists, or any other documents or materials. The term "confidential
information" as used in this Agreement includes, but is not limited to, records,
lists, and knowledge of the Company's current and former customers, suppliers,
methods of operation, processes, trade secrets, methods of determination of the
prices, financial consideration, profits, sales, net income, and indebtedness.
8. Non-Solicitation of Employees. During the term of Employee's employment with
the Company for a period of two (2) years from the voluntary or involuntary
termination of Employee's employment with the Company for any reason whatsoever,
Employee shall not either on her own account or for any person, firm,
partnership, corporation, or other entity solicit, interfere with, or endeavor
to cause any employee of the Company to leave his or her employment, or induce
or attempt to induce, any such employee to breach his or her employment
agreement with the Company.
9. Non-Solicitation of Customers. During the term of
Employee's employment with the Company and for a period of two (2) years from
the termination of Employee's employment with the Company for any reason
whatsoever, Employee shall not solicit, induce, or attempt to induce, any past
or current customer of the Company to cease doing business in whole or in part
through the Company, or to do business with any other person, firm, partnership,
corporation, or other entity which performs services materially similar to or
competitive with those provided by the Company.
10.Reasonableness of
Restrictions. Employee has carefully read and considered the provisions hereof,
and having done so, agrees that the restrictions set forth in Paragraphs 6
through 9 of this Agreement, including, but not limited to, the time periods of
restriction in each of such paragraphs and the geographical area of restrictions
set forth in Paragraphs 6, are fair and reasonable and are reasonably required
for the protection of the interests of the Company.
11. Compensation During
Disability and Upon Death.
11.1. Compensation During Initial Disability Period.
If at any time during the term of this Agreement, Employee becomes disabled or
incapacitated or is unable for any reason to perform substantially her duties
under this Agreement and he has not breached any of the provisions of this
Agreement, the Company shall continue to compensate Employee as provided in
Paragraph 4, but only as to the first six months of Employee's disability or
incapacitation ("the Initial Disability Period"), Provided, however, that
Company shall receive credit against such salary for any other disability
payments made to Employee pursuant to any Company sponsored disability plan.
11.2. Compensation After Initial Disability Period. Effective after expiration
of the Initial Disability Period, the Company may, at its sole option, elect to:
11.2.1. Continue payment of Employee's salary until she is able to return to
work;
11.2.2. Continue payment of Employee's salary for such period greater than
six months as the Company elects; or
11.2.3. Terminate this Agreement.
11.3.
Death of Employee. If Employee should die during the term of this Agreement,
Employee's employment and the Company's obligations hereunder shall terminate as
of the date of the Employee's death.
12. Termination. 12.1. Conditions of
Termination. This agreement may be terminated as follows prior to the expiration
of its stated term:
12.1.1. The Company may terminate this Agreement immediately
for cause, including without limitation, fraud, misrepresentation, theft or
embezzlement of the Company's assets, intentional violations of law or company
policies, or a breach of this Agreement;
12.1.2. Either the Company or the
Employee may terminate this Agreement without cause upon ninety (90) days notice
to the other party;
12.1.3. This agreement shall terminate in the event of death
or disability of the Employee. Disability shall be the inability of the Employee
to perform her duties under this agreement because of illness or incapacity for
a period of six months.
12.2. Compensation Upon Termination. Upon termination of
employment pursuant to this Paragraph 12, Employee shall be entitled to receive
all compensation accrued and unpaid as of the date of termination. In addition,
if terminated by the Company for reasons other than those set forth in Paragraph
12.1.1, or if terminated by the Employee for Good Reason, as defined in
paragraph 13 below, Employee shall be entitled to receive severance pay in an
amount equal to six (6) months of Employee's salary then in effect, which amount
shall be payable either in equal monthly installments no longer than six (6)
months or in a lump sum, as determined by the Board. If paid in a lump sum, the
payment shall be made within thirty (30) days after the effective date of
termination.
13. Resignation for Good Reason. For purposes of this Agreement, an
Employee's voluntary resignation will be for Good Reason if the resignation
follows consequently from any of the following:
13.1. Material Breach by
Employer. The material breach of any provision of this Agreement by the
Employer, which breach shall not have been cured by the Employer within 30 days
of the Employer's receipt from the Employee or the Employee's agent of written
notice specifying in reasonable detail the nature of the Employer's breach; or
13.2. Geographic Reassignment. A change in the Employee's principal work
location outside of the Lewisburg, Pennsylvania area without the Employee's
written consent; or
13.3. Duty Reassignment. The assignment to the Employee of
any duties inconsistent in any material respect with the Employee's position
(including status and reporting requirements), authority, duties, powers or
responsibilities or any other action by the Employer which results in a material
diminution of such position, authority, duties, powers or responsibilities,
excluding for this purpose any isolated, insubstantial action by the Employer
not taken in bad faith and which is remedied by the Employer within 30 days
after receipt of written notice from the Employee to the Employer. Following a
Change in Control, the diminution in the Employee's position, authority, duties,
powers or responsibilities solely as a result of a change in the Employer's
relative size and position in a larger organization shall not constitute Good
Reason; or
13.4. Material Salary Reduction. A material reduction in the
Employee's base salary other than a general reduction in salary which similarly
affects a significant number or class of employees in addition to the Employee.
14. Change in Control. The Employee shall be entitled to severance payments, as
set forth herein, in the event of a Change in Control of the Employer and the
Employee is terminated without cause by the Purchaser/Successor Employer or the
Employee chooses to leave for Good Reason (as defined in paragraph 13).
14.1.
Change in Control Definition. Change in Control shall mean any of the following
events:
14.1.1. The sale or other disposition by the Company of all or
substantially all of its assets to a single purchaser or to a group of
purchasers, other than to a corporation with respect to which, following such
sale or disposition, more than eighty percent (80%) of the then outstanding
shares of common stock and the combined voting power of the then outstanding
voting securities entitled to vote generally in the election of directors is
then owned beneficially, directly or indirectly, by all or substantially all of
the individuals who were the beneficial owners of the outstanding Company common
stock and voting securities immediately prior to such sale or disposition; or
14.1.2. The acquisition in one or more transactions by any person or group,
directly or indirectly, of beneficial ownership of twenty-five percent (25%) or
more of the outstanding shares of the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors, provided, however, that for this purpose acquisition of
such a share by an employee benefit plan of the Company or a subsidiary or
affiliate of the Company or a present significant shareholder (i.e., shareholder
whose current holdings exceed 5% of the outstanding stock) of the Company shall
not constitute a Change of Control.
14.1.3. The Company's termination of its
business and liquidation of its assets; or
14.1.4. The reorganization, merger or
consolidation of the Company into or with another person or entity, by which
reorganization, merger or consolidation the shareholders of the Company receive
less than fifty percent (50%) of the outstanding voting shares of the new or
continuing corporation; or
14.1.5. If, during any period of twenty-four (24)
consecutive months, individuals who at the beginning of such period constitute
the Board cease for any reason to constitute at least a majority thereof, unless
the election, or the nomination for election by the Company's stockholders, of
each new director was approved by a vote of at least two-thirds of the directors
then still in office who were directors at the beginning of the period.
14.2.
Severance Payments Upon Change of Control and Termination or Resignation for
Good Reason Upon Change of Control. In the event Employee is terminated without
cause by the purchaser/successor or the Employee chooses to leave for Good
Reason within ninety (90) days after the Change of Control, she shall receive as
severance payments:
14.2.1. One years' salary, in either a lump sum within 30
days of severance or six equal monthly payments beginning no later than 30 days
following termination, at the discretion of the Company, if such Change of
Control occurs on or before February 26, 1999;
14.2.2. Nine months' salary, in
either a lump sum within 30 days of severance or six equal monthly payments
beginning no later than 30 days following termination, at the discretion of the
Company, if such Change of Control occurs between February 26, 1999 and February
26, 2000;
14.2.3. Six months' salary, in either a lump sum within 30 days of
severance or six equal monthly payments beginning no later than 30 days
following termination, at the discretion of the Company, if the Change of
Control occurs after February 26, 2000.
14.3. Termination of Employment Prior to
Change of Control. If the Employee's employment with the Employer is terminated
prior to the date on which a Change of Control occurs either
14.3.1. By the
Employer other than for Cause; or by the Employee for Good Reason; and
14.3.2.
It is reasonably demonstrated that termination of employment
14.3.2.1. Was at
the request of the then existing Employer management team, or by an Unrelated
Third Party, who has taken steps reasonably calculated to effect a Change of
Control; or
14.3.2.2. Otherwise arose in connection with or anticipation of the
Change of Control, then
14.3.3. Such a termination shall be deemed to have
occurred specifically upon a Change of Control and the Employee shall be
entitled to Severance Pay as provided in paragraph 14.2.
15. Rights and
Remedies.
15.1. Both parties recognize that the services to be rendered under
this Agreement by Employee are special, unique and are of extraordinary
character. Upon breach of any provision of this Agreement, either may, at its
option, terminate this Agreement or elect to institute and prosecute proceedings
in any court of competent jurisdiction, either in law or equity, to obtain
damages, to enforce specific performance of the Agreement, to enjoin the other
party as appropriate, and to recover reasonable attorney's fees and the costs of
prosecuting such action.
15.2. Termination for any cause shall not constitute a
waiver of the Company's rights under Paragraphs 6 through 9 of this Agreement
(covenants against non-competition, disclosure of confidential information, and
solicitation of employees and customers) nor a release of Employee from her
obligation hereunder. The rights and remedies of the parties shall be cumulative
and in addition to any other rights and remedies provided by law or otherwise. A
party's failure to exercise its right to terminate this Agreement or to enforce
any provision of this Agreement for default or violation by the other party
shall not prejudice such party's right of termination or enforcement for any
further or other default or violation.
16. Miscellaneous.
16.1. Governing Law.
It is understood and agreed that the construction and interpretation of this
Agreement shall at all times and in all respects be governed by the laws of the
Commonwealth of Pennsylvania, without giving effect to the conflict of laws
provision thereof. Venue of any action brought to enforce this Agreement or
relating to this Agreement shall be brought exclusively in a Pennsylvania Court
of Common Pleas or the U. S. District Court for the Middle District of
Pennsylvania.
16.2. Assignment. This Agreement shall be binding upon and shall
inure to the benefit of the Company and Employee, and their respective
successors and assigns. The Company shall have the right to assign its rights
hereunder to any successor or interest, whether by merger, consolidation, sale
of assets, or otherwise. Employee may not assign any of its rights or delegate
any of her obligations under this Agreement without first obtaining written
consent from the Company.
16.3. Entire Agreement. This Agreement constitutes the
entire agreement between the parties respecting the employment of Employee, and
there are no representations, warranties or commitments, except as set forth in
this Agreement. This Agreement may be amended only by a writing executed by the
parties to this Agreement. No valid waiver of any provisions of this Agreement
at any time shall be deemed a waiver of any other provision of this Agreement.
16.4. Severability. The provisions of this Agreement shall be deemed severable
and the invalidity or unenforceability of any of the provisions hereof shall not
affect the validity or enforceability of any other provision of this Agreement.
16.5. Notices. Any notice, request, demand or other communication made under
this Agreement shall be in writing and shall be deemed to be duly given when
personally delivered to an officer of the Company or to Employee, as the case
may be, or when delivered by mail at the following addresses:
If to the Company: If to the Employee:
The JPM Company Therese M. Miller
155 N. 15th Street R.D. 3, Box 528A
Lewisburg, PA 17837 Lewisburg, PA 17837
16.6. Effective Date. The effective date of this Agreement shall be the 26th
day of February, 1998.
IN WITNESS WHEREOF, the Company and Employee have duly executed this
Agreement as of the 1st day of July, 1998.
The JPM Company
Attest:
/s/ John H. Mathias
/s/ Wayne A. Bromfield
(Corporate Seal)
Witness: Employee:
/s/ Theres M. Miller
Therese M. Miller
5
EMPLOYMENT AGREEMENT
INDIVIDUAL EMPLOYMENT AGREEMENT FOR A FIXED TERM, EFFECTIVE AS OF MAY 19,
1998, ENTERED INTO BY AND BETWEEN ELECTRONICA PANTERA, S.A., DE C.V.
(HEREINAFTER THE "COMPANY"), REPRESENTED BY Robert Verbosh, ITS
ATTORNEY-IN-FACT, AND JOSE R. LOZA JIMENEZ (HEREINAFTER THE "EXECUTIVE"),
PURSUANT TO THE FOLLOWING RECITALS AND CLAUSES:
RECITALS
I. COMPANY RECITES:
a) It is a Mexican corporation, duly incorporated under
the laws of the Mexican United States.
b) It is domiciled at Montemorelos #121
Loma Bonita, Zapopan, Jalisco, Mexico.
c) It has as its principal activities,
which are carried out with its own human and material resources the manufacture
and assembly of cable, harness assemblies and electronic sub-assemblies.
d) In
order to increase its market share worldwide and its activities in Mexico, the
Company requires the services of a General Manager with knowledge, skills,
capacity and experience in the business and activities referred to in paragraph
(c) of this Recital, and the market and the situation in Mexico for such
business and activities, as well as knowledge of and experience with the
Company.
II. EXECUTIVE RECITES:
a) His name is as set out in the introductory
paragraph of this Agreement.
b) He is a citizen of Mexico, 39 years of age
(birth date October 8, 1958), his civil status is married, and of male sex.
c)He is domiciled at Paseo de Los Cedros #304, El Palomar, Tlasomulco,Jalisco,
Mexico.
d) Due to his previous work and business activities, he has the
necessary capacity and experience to render his personal services to the Company
in the position for which he is hired.
e) He has knowledge of the Company, of
its business, and of the market for its products.
III. THE PARTIES RECITE:
a)They have agreed to enter into an employment agreement for an indefinite
period
of time. Based upon the foregoing recitals, the parties agree to the following:
CLAUSES 1) Validity and Term of the Agreement. On the basis of the Recitals of
the parties, and in accordance with the nature of the services herein agreed and
as provided in Article 37, Section I of the Federal Labor Law, this Agreement is
executed for an indefinite period of time, effective as of June 15, 1998.
Notwithstanding, the Company may terminate or rescind this Agreement for any of
the causes or justified grounds provided in the Mexican Federal Labor Law. This
Agreement cancels and supersedes any other written or verbal agreements the
parties may have entered into heretofore with respect to the employment
relationship set out in this Agreement, including but not limited to, conditions
of employment, compensation and fringe benefits to which the Executive may have
been entitled under any such prior Agreements, and services to be performed in
accordance with this Agreement.
2) Location for Rendering of Services. The
Executive shall principally render his services to the Company at the domicile
of the Company set out in Recital I(b) to this Agreement, which is hereby
incorporated by reference in its entirety. It is also agreed by the Executive
that he shall travel both within and outside Mexico, as necessary for the proper
discharge and fulfillment of his duties.
3) Full time and Effort. The Executive
agrees to dedicate his full time and effort to the Company, its business and
matters related thereto, and shall comply with the duties and responsibilities,
which are required for his position, and expressly, but without limitation, set
out in this Agreement, and shall carry out his duties and obligations with all
due diligence, care and attention pursuant to the terms and conditions set out
in this Agreement, subject to the supervision of the Company and subordinated to
it and its representatives in all matters related to the performance of his
services.
4) Scope of Services. The Executive shall be responsible for complying
with the obligations relating to General Manager, and shall have all other
responsibilities and authority commonly ascribed thereto, and to carry out such
other functions and activities as may be determined by the Board of Directors of
the Company or by those persons it may designate and to whom the Executive is
subordinated. In any event, the Executive shall keep the Company advised, in a
timely and proper manner, and any time at the request of the Company, as to the
performance and status of his activities.
5) Confidentiality. The Executive
expressly agrees and acknowledges that by virtue of the position for which he is
hired, he shall be privy to and shall have access to confidential information of
all kinds related to the business of the Company, its customers and suppliers,
including but not limited to, trade secrets, technology, whether or not
patented, administrative, accounting, financial, sales and marketing, personnel,
production and manufacturing policies, procedures and other secret and
confidential verbal or written information and documentation. Furthermore, the
Executive expressly agrees and acknowledges that any unauthorized disclosure to
any third party, or use by the Executive, directly or indirectly, for his own
benefit or for the benefit of any third party, of such information, whether or
not contained in any written material, as well as the employment of any employee
of the Company by the Executive or any such third party, as a result of an
inducement or offer of employment by the Executive or any such third party,
shall cause serious damage to the Company and its business. In view of the
foregoing, the Executive expressly agrees and undertakes not to disclose or in
any manner use such information and documentation for his own benefit or for the
benefit of any third party or to the detriment of the Company, at any time or
place even after termination of his employment relationship with the Company,
regardless of the reason therefor. Furthermore, the Executive expressly agrees
and undertakes not to, directly or indirectly, carry out any activities, perform
any services, act in any capacity or engage in any other business, for his own
benefit or for the benefit of any third party, which are, is or may be similar
to or competitive with the Company, at any time or place during his employment
by the Company and for two (2) years after termination of this Agreement.
Likewise, the Executive expressly agrees and undertakes not to, directly or
indirectly, possess, own, participate in, manage, operate, hold any position in
or provide services to any third party, whether or not incorporated as a legal
entity of any kind or nature, for his own benefit or for the benefit of any
third party, whether as a shareholder or partner, executive, principal or
alternate member of the Board of Directors, which is or may be engaged in a
business similar to or competitive with the Company, at any time or place during
his employment by the Company and for two (2) years after termination of this
Agreement. Upon termination of this Agreement and his employment relationship
with the Company for whatever reason, the Executive expressly agrees and
undertakes to immediately return and deliver to the Company, or subject and
pursuant to the direction of the Company, destroy any and all written material
and documentation which he holds in connection with the Company and its
business, as well as any other assets which he holds and that are the property
of the Company, and not to make or retain any copies thereof. Furthermore, for a
period of two (2) years after termination of this Agreement, the Executive
expressly agrees and undertakes not to induce or offer or to, directly or
indirectly, induce any third party to induce or offer to any employee of the
Company to enter establish or enter into an employment relationship or
agreement.
6) Work Schedule and Overtime. The Executive shall perform his
services to the Company within a daily work schedule, which in accordance with
his position and activities of the position for which he was hired, shall be
freely and independently distributed by him in accordance with the best
convenience of the work agreed and the interests of the Company. The parties
expressly agree the Executive cannot perform his services in a daily work
schedule in excess of the maximum ordinary work schedule provided in the Federal
Labor Law. In view of the foregoing, the parties expressly agree that the
Executive shall not perform services during overtime, and if required to do so,
it shall be necessary for the Executive to be authorized in writing to do so by
a representative of the Company of a higher position. Such written authorization
shall be the sole basis to approve the performance of work during overtime and
to be paid therefore.
7) Mandatory Days of Rest. The Executive shall be entitled
to enjoy as mandatory days of rest, those days listed in Article 74 of the
Federal Labor Law.
8) Weekly Day of Rest. The Executive in the terms agreed in
Clauses 6) and 7) shall freely determine the weekly days of rest, provided,
however, that he shall obtain prior written authorization from the Company to
work on Sunday or a legally mandated day of rest.
9) Annual Vacation. The
Executive shall be entitled to an annual vacation period of fifteen (15) working
days. The vacation period should be coordinated by the Executive with the
Company. Eligibility for vacation shall begin six months after employment date.
In addition, and in compliance with Article 80 of the Federal Labor Law, the
Executive shall be entitled to a vacation premium of 100%, calculated over the
working days of vacation actually taken by the Executive.
10) Base Compensation.
During the first year of this Agreement, the Executive shall be entitled to a
gross monthly salary in an amount equal to the Mexican currency equivalent of
US$10,500 (ten thousand five hundred dollars U.S.) During subsequent years the
salary shall be reviewed annually. The gross monthly salary shall be paid in
regular pay periods in pesos at the exchange rate on date of pay, less the
corresponding deduction for taxes and any other applicable deductions. It is
expressly agreed by the parties that by virtue of being a monthly salary, the
above mentioned salary includes the payment of mandatory and weekly days of
rest.
11) Annual Bonus. The Executive shall be entitled to receive an annual
bonus of up to thirty-five percent (35%) of base salary, payable after the close
of the fiscal year (September 30) and determination of the profits of the
preceding year. The bonus would be divided into two components: a) Bonus of 20%.
The first component of the bonus would be determined by the same objectives as
are applied to all similarly situate executives of the Company, as measured by
financial and non-financial objectives and as divided between corporate and
plant objectives; b) Bonus of 15%. The second component of the bonus would be
based solely on the Company profit targets. The Executive would receive a bonus
of 1% of base salary for each 1% of Company profits in excess of Company profit
targets. c) 1998 Special Provisions. In 1998, the bonus will be prorated based
upon months of service compared to months in the Company's fiscal year. The
first component of the bonus (up to 20% annualized) would be based upon
attainment of corporate profit targets (one-third of bonus) and plant profit
targets (two-thirds of bonus). The second component of the bonus (up to 15%
annualized) would be based upon the same formula as set forth in paragraph (b)
above.
12) Signing Bonus. The Executive shall receive a signing bonus, payable
within six weeks of the commencement of work, in the amount of US$20,000. Such
amount shall be paid in pesos or dollars, as elected by the Executive. Such
amount shall be net of taxes to Executive.
13) Christmas Bonus. The Executive
shall be entitled to an annual Christmas bonus of one month's base salary, to be
paid in December of each year.
14) Stock Option. Simultaneous with the execution
of this agreement, the Executive shall be extended an agreement under which The
JPM Company, which holds a commercial relationship with the Company, shall grant
15,000 stock options to the Executive under The JPM Employee Stock Option Plan
of 1995, which options shall be priced at the market price on date of contract,
and which options shall vest one-fourth annually on each anniversary date if the
Executive remains employed with the Company. Such options shall be subject to
the terms and conditions of the Employee Stock Option Plan of 1995 and the
agreement between the Executive and The JPM Company.
15) Life and Medical
Insurance. The Executive shall be entitled to the life and medical group
insurance of the company, subject to the conditions and requirements of the
policies contracted by the Company. The Executive shall be entitled to
additional coverage for life insurance, such that the company policy and
additional policy provide life insurance coverage of no less than US$500,000
(accidental death: US$1,000,000), provided that such coverage is available at
standard rates. The additional coverage shall be by term policy for a term no
less than ten years. In the event the Executive leaves the employ of the Company
in less than ten years, and the policy is assignable, the Executive shall have
the option of transferring the policy to himself upon termination. The Company
shall have the option but no obligation to continue such additional coverage
beyond the original ten-year term. The Executive shall be entitled to non-major
medical insurance coverage, premiums to be paid by the Company. The Company
shall purchase dependent medical insurance, major and non-major, for the
Executive.
16) Other Fringe Benefits. The Executive shall be entitled to
participate in all social and fringe benefits established or which may be
enacted in future by the Company. The Company shall specifically provide: a)
Vales. Vales allowance of US$165.00 per month. b) Athletic Club Membership.
Allowance of up to US$412 per month, to be reviewed annually. c) Cellular Phone.
To be provided at company expense. d) Annual Physical. To be provided at company
expense. e) Savings Fund. Per Company policy applicable to other employees - up
to eight percent subject to cap. f) Automobile. The Company shall provide the
Executive with an automobile, as a working tool, together with directly paying
or reimbursing Executive for costs of ownership and use - fuel, maintenance,
insurance, registration and fees. After three years, the Executive shall have
the option of purchasing the automobile from the Company at the book value (if
the automobile was purchased by the Company) or the turn-in purchase price (if
the vehicle was leased by the Company).
17) Medical Examinations. Pursuant to
Article 134 of the Federal Labor Law, the Executive is obligated to submit to
medical examinations in accordance with the rules established by the Company.
18) Work Equipment and Materials. The Company shall provide the Executive with
all necessary materials and equipment necessary for the performance of the
Executive's duties and obligations set out in this Agreement. The Executive is
obligated to properly care for an use the materials and equipment provided to
him by the Company.
19) Training Courses. Pursuant to the provisions of Chapter
III Bis, Section 4 of the Federal Labor Law, the Executive is obligated to
attend any and all training courses offered by the Company.
20) Survival of
Termination. It is agreed by the parties that the provisions of Clause 5) shall
survive the termination of this Agreement.
21) Effective Date. The parties
hereby agree that, notwithstanding the execution date hereof, the effective date
of this Agreement shall be June 15, 1998.
22) Governing Law. The employment
relationship between the Executive and the Company shall be governed by this
Agreement and, to the extent not provided for herein, by the Federal Labor Law
and other applicable precepts.
Both parties, having read this Agreement and fully understanding its
contents and the extent of the obligations contained herein, sign it on this
19th day of May, 1998.
Electronica Pantera S.A. de C.V.
Attest:
/s/ Robert Verbosh
Robert Verbosh, Director General
(Corporate Seal)
Witness: Employee:
________________________________ /s/ Jose R. Loza Jimenez
Jose R. Loza Jimenez
LOAN AGREEMENT
By and Among
THE JPM COMPANY
and
CORESTATES BANK, N.A., As Agent
and the LENDERS described herein
Dated: April 9, 1998
<PAGE>
BLU-36098_ 6/BKE1335/COR065-128817 060398/09:53
TABLE OF CONTENTS
1. DEFINITIONS 1
-----------
1.1 Accounting Terms 1
----------------
1.2 "Acquisition Documents" 1
-----------------------
1.3 "Acquisition Transaction" 1
-------------------------
1.4 "Advances" 1
----------
1.5 "Affiliate" 1
-----------
1.6 "Applicable Margin" 1
-------------------
1.7 "Base Rate" 2
-----------
1.8 "Base Rate Notification" 2
------------------------
1.9 "Base Rate Portion" 2
-------------------
1.10 "Business Day" 2
--------------
1.11 "Capital Expenditures" 2
----------------------
1.12 "Capitalized Leases" 2
--------------------
1.13 "Capitalized Lease Obligations" 2
1.14 "Change of Control" 2
1.15 "Commitment" 2
------------
1.16 "Consolidated Basis'" 3
---------------------
1.17 "CoreStates" 3
------------
1.18 "Compliance Certificate" 3
------------------------
1.19 "Contract Period" 3
-----------------
1.20 "CoreStates Line" 3
-----------------
1.21 "Corporation" 3
-------------
1.22 "Covered Person" 3
----------------
1.23 "Credit Facilities" 3
-------------------
1.24 "Defaulting Lender" 3
-------------------
1.25 "EBITDA" 3
--------
1.26 "Environmental Affiliate" 3
-------------------------
1.27 "Environmental Cleanup Site" 3
----------------------------
1.28 "Environmental Requirements" 3
----------------------------
1.29 "Event of Default" 4
------------------
1.30 "Federal Funds Effective Rate" 4
------------------------------
1.31 "Fixed Charged Coverage Ratio" 4
------------------------------
1.32 "GAAP" 4
------
1.33 "Good Business Day" 4
-------------------
1.34 "Guarantors" 4
------------
1.35 "Hedge Agreement" 4
-----------------
1.36 "Indebtedness" 4
--------------
1.37 "Interest Expense" 5
------------------
1.38 "Issuing Bank" 5
--------------
1.39 "Lender Indebtedness" 5
---------------------
1.40 "Letter of Credit Advances" 5
---------------------------
1.41 "LIBOR Rate" 5
------------
1.42 "LIBOR Rate Notification" 5
-------------------------
1.43 "LIBOR Rate Portion" 6
--------------------
1.44 "LIBOR Rate Reserve Percentage" 6
-------------------------------
1.45 "Loan Documents" 6
----------------
1.46 "Maximum Amount" 6
----------------
1.47 "Material Adverse Effect" 6
-------------------------
1.48 "Net Income" 6
------------
1.49 "Obligor" 6
---------
1.50 "Outstanding Credit" 6
--------------------
1.51 "Permitted Acquisition" 7
-----------------------
1.52 "Permitted Affiliate Loan"7
--------------------------
1.53 "Permitted Investment" 7
----------------------
1.54 "Person" 7
--------
1.55 "Pledge Agreement" 7
------------------
1.56 "Post Default Pro Rata Percentage" 7
----------------------------------
1.57 "Prime Rate" 7
------------
1.58 "Pro Rata Percentage" 8
---------------------
1.59 "Pro Rata Share" 8
----------------
1.60 "Rate Period" 8
-------------
1.61 "Reimbursement Obligation"8
--------------------------
1.62 "Required Lenders" 8
------------------
1.63 "Revolver Notes" and "Revolver Note" 8
------------------------------------
1.64 "Security Agreements" 8
---------------------
1.65 "Special Materials" 8
-------------------
1.66 "Subordinated Debt" 8
-------------------
1.67 "Surety Agreements" 8
-------------------
1.68 "Subsidiary" 8
1.69 "Swingline Loan" and "Swingline Loans" 8
1.70 "Swingline Limit" 9
1.71 "Swingline Note" 9
----------------
1.72 "Total Capital" 9
---------------
1.73 "Total Indebtedness" 9
--------------------
2. CREDIT FACILITIES; USE OF PROCEEDS 9
----------------------------------
2.1 Revolving Credit Commitment 9
---------------------------
2.2 Use of Proceeds 9
---------------
2.3 Method of Revolver Advances 10
---------------------------
2.4 Letter of Credit Advances 10
-------------------------
2.5 Swingline Loans 13
---------------
2.6 Procedure for Swingline Borrowing 13
---------------------------------
2.7 Refunding of Swingline Loans; Participations in Swingline
Loans 13
-------------------------------------------------------------
2.8 Payments Among Lenders 15
----------------------
2.9 Defaulting Lenders 15
------------------
3. INTEREST RATES 16
3.1 Revolver Interest Rate Options 16
3.2 Swingline Loan Interest 17
3.3 Default Interest 17
----------------
3.4 Post Judgment Interest 17
----------------------
3.5 Calculation 17
-----------
3.6 Limitation of Interest to Maximum Lawful Rate 18
---------------------------------------------
4. PAYMENTS AND FEES 18
-----------------
4.1 Interest Payments 18
-----------------
4.2 Principal Payments 18
------------------
4.3 Letter of Credit Fees 18
---------------------
4.4 Loan Fee 18
--------
4.5 Usage Fee 19
---------
4.6 Late Charge 19
-----------
4.7 Termination of Revolver 19
-----------------------
4.8 Payment Method 19
--------------
4.9 Application of Payments 19
-----------------------
4.10 Loan Account 20
------------
4.11 Indemnity; Loss of Margin 20
-------------------------
4.12 Indemnity for LIBOR Portion 21
4.13 Taxes 21
4.14 Fees to Agent 22
5. SECURITY; COLLECTION OF RECEIVABLES AND PROCEEDS OF COLLATERAL 22
5.1 Personal Property 22
5.2 Interests in Subsidiaries 22
5.3 Surety 23
5.4 General 23
5.5 Collection of Receivables; Proceeds of Collateral 23
-------------------------------------------------
6. REPRESENTATIONS AND WARRANTIES 23
6.1 Valid Organization, Good Standing and Qualification 23
6.2 Licenses 23
6.3 Ownership Interests 23
-------------------
6.4 Subsidiaries 24
------------
6.5 Financial Statements 24
--------------------
6.6 No Material Adverse Change in Financial Condition 24
-------------------------------------------------
6.7 Pending Litigation or Proceedings 24
---------------------------------
6.8 Due Authorization; No Legal Restrictions 24
----------------------------------------
6.9 Enforceability 24
6.10 No Default Under Other Obligations, Orders or Governmental
Regulations 24
6.11 Governmental Consents 25
6.12 Taxes 25
-----
6.13 Title to Collateral 25
-------------------
6.14 Addresses 25
---------
6.15 Current Compliance 25
------------------
6.16 Pension Plans 25
-------------
6.17 Leases and Contracts 25
--------------------
6.18 Intellectual Property 26
---------------------
6.19 Business Interruptions 26
----------------------
6.20 Year 2000 Warranty 26
------------------
6.21 Accuracy of Representations and Warranties 26
7. GENERAL COVENANTS 26
7.1 Payment of Principal, Interest and Other Amounts Due 27
7.2 Limitation on Sale and Leaseback 27
7.3 Limitation on Indebtedness27
7.4 Investments and Loans 27
7.5 Guaranties 28
7.6 Disposition of Assets 28
7.7 Merger; Consolidation; Business Acquisitions; Subsidiaries 28
7.8 Taxes; Claims for Labor and Materials 29
7.9 Liens 30
7.10 Existence; Approvals; Qualification; Business Operations;
Compliance with Laws 30
7.11 Maintenance of Properties, Intellectual Property 31
7.12 Insurance 31
---------
7.13 Inspections; Examinations 33
-------------------------
7.14 Default Under Other Indebtedness 33
--------------------------------
7.15 Pension Plans 33
-------------
7.16 Maintenance of Management 33
-------------------------
7.17 Ownership Interests; Distributions 34
----------------------------------
7.18 Transactions with Affiliates 34
----------------------------
7.19 Change of Control 34
-----------------
7.20 Name or Address Change 34
----------------------
7.21 Notices 34
7.22 Additional Documents and Future Actions 34
---------------------------------------
7.23 Material Adverse Contracts35
--------------------------
7.24 Restrictions on Use of Proceeds 35
-------------------------------
7.25 Hedge Agreement 35
8. FINANCIAL COVENANTS 35
8.1 Total Indebtedness to Total Capital35
8.2 Total Indebtedness to Annualized EBITDA 35
8.3 Fixed Charge Coverage Ratio 35
9. ACCOUNTING RECORDS, REPORTS AND FINANCIAL STATEMENTS 35
----------------------------------------------------
9.1 Annual Statements 35
-----------------
9.2 Projections and Cash Flow 36
-------------------------
9.3 Quarterly Statements 36
--------------------
9.4 Audit Reports 37
-------------
9.5 Reports to Governmental Agencies and Other Creditors 37
----------------------------------------------------
9.6 Requested Information 37
---------------------
9.7 Compliance Certificates 37
-----------------------
9.8 Accountant's Certificate 37
------------------------
10. ENVIRONMENTAL REPRESENTATIONS AND COVENANTS 37
-------------------------------------------
10.1 Representations 37
---------------
10.2 Real Property 38
-------------
10.3 Covenant Regarding Compliance 38
-----------------------------
10.4 Notices 38
-------
10.5 Indemnity 38
---------
10.6 Survival 39
--------
11. CONDITIONS OF CLOSING 39
11.1 Loan Documents 39
11.2 Representations and Warranties 39
------------------------------
11.3 No Default 39
----------
11.4 Proceedings and Documents 39
-------------------------
11.5 Landlord's or Warehouseman's Release and Waiver Agreements 39
11.6 Delivery of Other Documents 40
12. CERTAIN CONDITIONS TO SUBSEQUENT ADVANCES 40
12.1 Representations and Warranties 40
12.2 No Default 41
12.3 Other Requirements 41
13. DEFAULT AND REMEDIES 41
13.1 Events of Default 41
13.2 Remedies 43
13.3 Set-Off 43
13.4 Delay or Omission Not Waiver 44
13.5 Remedies Cumulative; Consents 44
13.6 Certain Fees, Costs, Expenses and Expenditures 44
13.7 Time is of the Essence 45
13.8 Acknowledgment of Confession of Judgment Provisions 45
14. AGENT 45
14.1 Appointment of Agent 45
14.2 Holding of Collateral and Collections 46
14.3 Fees 46
14.4 Collections and Disbursements 46
14.5 Delegation of Duties; Discretion; Instructions 47
14.6 Nature of Duties 47
14.7 Lack of Reliance on the Agent 48
14.8 Resignation 48
14.9 Certain Rights of Agent 48
14.10 Reliance 48
14.11 Notice of Default 49
14.12 The Agent in its Capacity as Lender49
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14.13 Other Loans 49
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14.14 Disclosure of Information; Audits 49
---------------------------------
14.15 Actions by Agent 49
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14.16 Sharing of Risk; Indemnification; Expenses 51
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14.17 Consultation with Counsel 51
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14.18 Documents 52
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14.19 Several Obligations 52
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14.20 No Third Party Beneficiary52
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14.21 Participations and Assignments 52
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15. COMMUNICATIONS AND NOTICES 53
15.1 Communications and Notices53
16. WAIVERS 54
16.1 Waivers 54
16.2 Forbearance 55
16.3 Limitation on Liability 55
17. SUBMISSION TO JURISDICTION 55
17.1 Submission to Jurisdiction55
18. MISCELLANEOUS 55
18.1 Brokers 55
18.2 Use of Lenders' Names 56
18.3 No Joint Venture 56
18.4 Survival 56
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18.5 No Assignment 56
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18.6 Binding Effect 56
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18.7 Severability 56
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18.8 No Third Party Beneficiaries 56
18.9 Modifications 56
18.10 Holidays 56
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18.11 Law Governing 56
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18.12 Integration 57
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18.13 Exhibits and Schedules 57
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18.14 Headings 57
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18.15 Counterparts 57
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18.16 Waiver of Right to Trial by Jury 57
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<PAGE>
SCHEDULES
Schedule A Applicable Margin Definitions and Determinations
Schedule B Pro Rata Percentages and Pro Rata Shares
Schedule 2.4(c) Existing Letters of Credit
Schedule 6.1 States of Incorporation of Obligors
Schedule 6.3 Ownership Interests, Pledges, etc. of Covered Persons
Schedule 6.4 Stock owned by Covered Persons
Schedule 6.7 Pending or Threatened Litigation or Proceedings
Against or Affecting any Covered Persons
Schedule 6.14 Names (including trade names) and Addresses of each
Obligor identifying chief executive offices
Schedule 6.16 Employee Pension Benefit Plan Obligations of each
Obligor
Schedule 6.18 Intellectual Property of Covered Persons
Schedule 7.3 Permitted Indebtedness for Borrowed Money
Schedule 7.4 Permitted Investments and Loans
Schedule 7.7A Description of Pending Brazilian Acquisition
Schedule 7.7B Description of Pending Canadian Acquisition
Schedule 7.9 Permitted Liens and Security Interests
Schedule 7.18 Permitted Existing Loans to Affiliates,
Shareholders, Officers or Directors
Schedule 9.2 Initial Projections - Borrower
EXHIBITS
Exhibit "A" Form of Revolver Note
Exhibit "B" Form of Swingline Note
Exhibit "C" Form of Compliance Certificate
Exhibit "D" Form of Assignment and Acceptance
<PAGE>
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement") is made effective the ____ day of
April, 1998, among THE JPM COMPANY, a Pennsylvania corporation ("Borrower"),
CORESTATES BANK, N.A., a national banking association, in its capacity as agent
("Agent") and the financial institutions listed on Schedule B attached hereto
and made a part of this Agreement (as such Schedule may be amended, modified or
replaced from time to time), in their capacity as lenders (each a "Lender" and
collectively the "Lenders").
BACKGROUND
A. Borrower has requested that Lenders extend a certain credit facility
to Borrower, which Lenders are willing to do on the terms set forth herein.
B. Capitalized terms not otherwise defined herein will have
the meanings set forth therefor in Section 1 of this
Agreement.
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, and of any extensions of credit now or hereafter made to or for the
benefit of Borrower by Lenders, the parties hereto, intending to be legally
bound hereby, agree as follows:
. DEFINITIONS. The following words and phrases as used in capitalized
form in this Agreement, whether in the singular or
plural, shall have the meanings indicated:
. Accounting Terms. As used in this Agreement, or any
certificate, report or other document made or delivered
pursuant to this Agreement, accounting terms not defined elsewhere in this
Agreement shall have the respective meanings given to them
under GAAP.
. "Acquisition Requirements" has such meaning as provided in
Section 7.7.
. "Acquisition Transaction" has such meaning as provided in
Section 7.7.
. "Advances" means any monies advanced or credit extended to
Borrower by any Lender under the Revolver, other than
the face amount of all undrawn Letters of Credit.
. "Affiliate", as to any Person, means each other Person
that directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is
under common control with, the Person in question.
. "Applicable Margin" means either the Applicable LIBOR Rate Margin or
the Applicable Base Rate Margin, as applicable, as determined in accordance with
Schedule A attached hereto. The Applicable Base Rate Margin and the Applicable
LIBOR Rate Margin shall each be determined initially as of the date hereof and
such Applicable Margin shall, except as hereinafter provided, remain in effect
until delivery of a new quarterly Compliance Certificate as required under
Section 9.7 hereof. If the Compliance Certificate delivered by Borrower for a
quarter then ended indicates that any Applicable Margin then in effect should be
adjusted based on the information contained in such Compliance Certificate,
Agent shall adjust the Applicable Margin effective within three (3) calendar
days of receipt of such Compliance Certificate. Without limiting the foregoing,
such adjustment shall be made to all LIBOR Rates then in effect, but such
adjustment shall not cause Borrower to be liable for any breakage fees. Should
Borrower fail to deliver to Agent any quarterly Compliance Certificate when and
as required under Section 9.7, Agent may, in its discretion, immediately
increase each Applicable Margin then in effect by one quarter of one percent
(1/4 of 1%).
. "Base Rate" means the sum of (a) the Applicable Base Rate Margin (as
defined in Section 1.6) plus (b) the higher of (i) the Prime Rate, or (ii) the
Federal Funds Effective Rate plus one-half of one percent (.50%).
. "Base Rate Notification" means an irrevocable written notice
requesting the Base Rate which must be provided to Agent prior to 11:00 A.M.
Philadelphia time on the Business Day on which such rate is requested to take
effect, specifying:
() The principal amount which is to accrue interest at such rate;
() The date on which such rate is to take effect; and
() Whether such principal amount is a new Advance,
a conversion from another interest rate option or a
combination thereof.
. "Base Rate Portion" shall mean at any time the part,
including the whole, of the unpaid principal
amount of the Revolver bearing interest at such time at
the Base Rate.
. "Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in the Commonwealth of
Pennsylvania and Columbia, South Carolina are authorized by
law to close.
. "Capital Expenditures" means any expenditure that would be
classified as a capital expenditure on a statement of
cash flow of Borrower prepared in accordance with GAAP.
. "Capitalized Leases" means all lease obligations which have
been or should be, in accordance with GAAP, capitalized
on the books of the lessee.
. "Capitalized Lease Obligations" means all amounts payable with
respect to a Capitalized Lease.
. "Change of Control" means (i) any Person or "group" (within the
meaning of Section 13(d) or 14(d) of the Securities Exchange Act of 1934, as
amended) (A) shall have acquired beneficial ownership of 50% or more of any
outstanding class of capital stock having ordinary voting power in the election
of directors of the Borrower or (B) shall obtain the power (whether or not
exercised) to elect a majority of the Borrower's directors, or (ii) the Board of
Directors of the Borrower shall not consist of a majority of Continuing
Directors; "Continuing Directors" shall mean the directors of the Borrower on
the effective date hereof and each other director, if such other director's
nomination for election to the Board of Directors of the Borrower is recommended
by a majority of the then Continuing Directors.
. "Commitment" means that certain commitment letter dated
January 28, 1998 issued by CoreStates to Borrower, as
amended by letter agreement dated February 5, 1998.
. "Consolidated Basis'" means consolidated as to Borrower and
its Subsidiaries in accordance with GAAP.
. "CoreStates" means CoreStates Bank, N. A. in its capacity as
a Lender under this Agreement.
. "Compliance Certificate" has such meaning as provided in
Section 9.7.
. "Contract Period" has such meaning as provided in
Section 2.1(a).
. "CoreStates Line" means that certain line of credit in the principal
amount of up to $1,000,000.00 extended to Borrower by CoreStates individually
and not as Agent hereunder. Sums advanced under the CoreStates Line shall not be
included in the Credit Facilities or the Outstanding Credit. The CoreStates Line
shall be secured by all liens, security interests, sureties, rights and remedies
securing the Outstanding Credit, and shall otherwise be on such terms as
determined by CoreStates and Borrower from time to time .
. "Corporation" means a corporation, limited liability
company, partnership, trust, unincorporated organization,
association or joint stock company.
. "Covered Person" means Borrower, Guarantors and each
Subsidiary of Borrower.
. "Credit Facilities" means, collectively, the Revolver,
the Swingline Loans and all other extensions of credit
provided by Lenders to Borrower hereunder.
. "Defaulting Lender" shall have the meaning set forth in
Section 2.9.
. "EBITDA" for any period, means the Net Income of Borrower and its
Subsidiaries as determined on a Consolidated Basis for such period, plus the
aggregate amounts deducted in determining such income in respect of (a) Interest
Expense, (b) income taxes for such period, (c) depreciation for such period, and
(d) amortization for such period, all as determined in accordance with GAAP.
. "Environmental Affiliate" means Obligors and any other Person for
whom any Obligor at any time has any liability (contingent or otherwise) with
respect to any claims arising out of the failure of such Obligor or such Person
to comply with all applicable Environmental Requirements.
. "Environmental Cleanup Site" shall mean any location which is listed
or proposed for listing on the National Priorities List, on CERCLIS or on any
similar state list of sites requiring investigation or cleanup, or which is the
subject of any pending or threatened action, suit, proceeding or investigation
related to or arising from any alleged violation of any Environmental
Requirements.
. "Environmental Requirements" means any and all applicable federal,
state or local laws, statutes, ordinances, regulations or standards,
administrative or court orders or decrees, common law doctrines or private
agreements, relating to (i) pollution or protection of the environment and
natural resources, (ii) exposure of employees or other Persons to Special
Materials, (iii) protection of the public health and welfare from the effects of
Special Materials and their by-products, wastes, emissions, discharges or
releases, and (iv) regulation, licensing, approval or authorization of the
manufacture, generation, use, formulation, packaging, labeling, transporting,
distributing, handling, storing or disposing of any Special Materials.
. "Event of Default" means each of the events specified in
Section 13.1.
. "Federal Funds Effective Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight federal funds transactions with members of the
Federal Reserve system arranged by federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of Philadelphia, or, if such rate is not so
published for any day which is a Business Day, the average of the quotations for
such day on such transactions received by Agent from three (3) federal funds
brokers of recognized standing selected by Agent.
. "Fixed Charged Coverage Ratio" shall mean, for any period, the ratio
of (a) EBITDA less all Capital Expenditures for such period except those funded
by long term Indebtedness permitted under Section 7.3(b) or (c) hereof, to (b)
the sum of Interest Expense and current maturities of long term Indebtedness for
such period; all as determined on a Consolidated Basis and in accordance with
GAAP.
. "Foreign Currency Advances" has such meaning as provided in
Section 2.3(d).
. "GAAP" means generally accepted accounting principles in
the United States of America, in effect from time to time,
consistently applied and maintained.
. "Good Business Day" means any Business Day when banks in London,
England, New York, New York and Philadelphia, Pennsylvania and Columbia, South
Carolina are opened for business and with respect to any Foreign Currency
Advance, a Business Day when banks in such foreign jurisdiction are open for
business.
. "Guarantors" means JPM Technology, Inc., The JPM Company of
Delaware, Denron, Inc. and any and all other Persons who
now or hereafter guarantee and/or become a surety for, or pledge, assign
or grant a security interest to Agent, for the pro rata
benefit of Lenders in, any assets of such Person as security for any of
Borrower's obligations with respect to the Revolver.
. "Hedge Agreement" means any swap, collar and/or cap agreement between
Borrower and CoreStates, or other Lender approved by Agent, the purpose of which
is to hedge Borrower's floating interest rate expense on not less than 25% of
all Advances.
. "Indebtedness", as applied to a Person, means:
() all items (except items of capital stock or of surplus)
which in accordance with GAAP would be included in determining total liabilities
as shown on the liability side of a balance sheet of such Person as at the date
as of which Indebtedness is to be determined;
() to the extent not included in the foregoing, all
indebtedness, obligations, and liabilities secured by any mortgage, pledge,
lien, conditional sale or other title retention agreement or other security
interest to which any property or asset owned or held by such Person is subject,
whether or not the indebtedness, obligations or liabilities secured thereby
shall have been assumed by such Person; and
() to the extent not included in the foregoing, all
indebtedness, obligations and liabilities of others which such Person has
directly or indirectly guaranteed, endorsed (other than for collection or
deposit in the ordinary course of business), sold with recourse, or agreed
(contingently or otherwise) to purchase or repurchase or otherwise acquire or in
respect of which such Person has agreed to supply or advance funds (whether by
way of loan, stock purchase, capital contribution or otherwise) or otherwise to
become directly or indirectly liable.
. "Interest Expense", as applied to Borrower, means for any
period, the amount of interest paid on Indebtedness by
Borrower for such period, determined on a Consolidated Basis and in accordance
with GAAP.
. "Issuing Bank" means CoreStates Bank, N.A. and/or such Lender
or Lenders as may, from time to time, be designated as
an Issuing Bank by Agent for the purpose of issuing Letters of Credit.
. "Lender Indebtedness" shall mean all obligations and Indebtedness of
Borrower or any other Obligor to any Lender, whether now or hereafter owing or
existing, arising under or in connection with any of the credit facilities
contemplated herein or the Loan Documents, including without limitation, all
obligations to reimburse any Lender for payments made by any Lender pursuant to
any Letter of Credit or any other letter of credit issued for the account or
benefit of Borrower or any other Obligor by such Lender, principal, interest and
other sums at any time owing to CoreStates under or in connection with the
CoreStates Line, all other obligations or undertakings now or hereafter made by
or for the benefit of Borrower or any other Obligor to or for the benefit of any
Lender under any other agreement, promissory note or undertaking now existing or
hereafter entered into by Borrower or any other Obligor with any Lender based on
or arising in connection with this Agreement, together with all interest and
other sums payable in connection with any of the foregoing.
. "Letter of Credit Advances" means letters of credit issued by
the Issuing Bank for the account of Borrower under the
Revolver as provided in Section 2.4 hereof.
. "LIBOR Rate" for any day for any proposed or existing LIBOR Rate
Portion of the Revolver corresponding to a Rate Period shall mean the sum of (a)
the Applicable LIBOR Rate Margin plus (b) the per annum rate of interest
determined by Agent to be the rate per annum obtained by dividing (the resulting
quotient to be rounded upward to the nearest 1/100 of 1%) (i) the rate of
interest (which shall be the same for each day in such Rate Period) estimated in
good faith by Agent in accordance with its usual procedures and adjusted for any
applicable reserve requirements and/or regulatory assessments (which
determination shall be conclusive) to be the average of the rates per annum for
deposits in United States Dollars offered to major money center banks in the
London interbank market at approximately 11:00 a.m., London time, 2 Good
Business Days prior to the first day of such Rate Period for delivery on the
first day of such Rate Period in amounts comparable to such LIBOR Rate Portion
(or, if there are no such comparable amounts actively traded, the smallest
amounts actively traded) and having maturities comparable to such Rate Period,
by (ii) a number equal to 1.00 minus the LIBOR Rate Reserve Percentage for such
day.
. "LIBOR Rate Notification" means an irrevocable written notice
requesting the LIBOR Rate, which must be provided to Agent prior to 11:00 A.M.
Philadelphia time on a Business Day which is at least three (3) Good Business
Days prior to the date on which such rate is requested to take effect,
specifying:
() The principal amount which is to accrue interest at
such rate;
() The date on which such rate is to take effect;
() Whether such principal amount is a new Advance,
a conversion from another interest rate, a renewal of
another interest rate or a combination thereof; and
() The requested Rate Period.
. "LIBOR Rate Portion" shall mean at any time the part,
including the whole, of the unpaid principal amount of the
Revolver bearing interest at such time at the LIBOR Rate.
. "LIBOR Rate Reserve Percentage" for any day shall mean the percentage
(rounded upward to the nearest 1/100 of 1%), as determined in good faith by
Agent (which determination shall be conclusive) as representing for such day the
maximum effective reserve requirement (including without limitation
supplemental, marginal and emergency requirements) for member banks of the
Federal Reserve System with respect to eurocurrency funding (currently referred
to as "Eurocurrency liabilities") of any maturity. Each LIBOR Rate shall be
adjusted automatically as of the effective date of any change in the LIBOR Rate
Reserve Percentage.
. "Loan Documents" means this Agreement, the Revolver Notes, the
Swingline Note, the Surety Agreements, the Security Agreement, the Pledge
Agreement, the letters of credit and applications delivered in connection with
Letter of Credit Advances, the Commitment and all other documents executed or
delivered by Borrower or Guarantors pursuant to this Agreement, as any of them
may be amended from time to time.
. "Maximum Amount" means Sixty Million Dollars ($60,000,000.00).
. "Material Adverse Effect" means a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of Borrower
and its Subsidiaries taken as a whole, whether resulting from any event or
occurrence of any nature, including any adverse determination in any litigation,
arbitration, investigation or proceeding, or (b) the ability of Obligors to
timely pay the Lender Indebtedness or perform any other obligations under the
Loan Documents, generally taken as a whole, or (c) the validity or
enforceability of any of the terms of this Agreement or any of the other Loan
Documents.
. "Net Income" means income (or loss) of Borrower and its Subsidiaries,
determined on a Consolidated Basis, after income and franchise taxes and shall
have the meaning given such term by GAAP, provided that there shall be
specifically excluded therefrom (a) gains or losses from the sale of capital
assets, (b) net income of any Person in which Borrower has an ownership
interest, unless received by Borrower in a cash distribution, and (c) any gains
arising from extraordinary items, as defined by GAAP.
. "Notes" means, collectively, the Revolver Notes and the
Swingline Note, and individually, any of them.
. "Obligor" means Borrower, each Guarantor and any other Person which
now or hereafter becomes liable, directly or indirectly, for repayment of any of
the Lender Indebtedness or which now or hereafter pledges, assigns, or grants to
Agent a security interest in, as security for any Lender Indebtedness, all
assets of such Person.
. "Outstanding Credit" means, at any time, an amount equal to the sum
of (a) the aggregate principal amount of all Advances then outstanding, (b) the
sum of the aggregate then undrawn and unexpired amount of outstanding Letters of
Credit, including the Dollar equivalent of the aggregate then undrawn and
unexpired amount of outstanding Letters of Credit issued in currencies other
than Dollars, as determined by Agent, and the aggregate amount of all
Reimbursement Obligations which have not then been paid pursuant to Section
2.4(e), including the Dollar equivalent, as determined by the Agent, of the
aggregate amount of Reimbursement Obligations in respect to the Letters of
Credit issued in currencies other than Dollars, plus (c) the aggregate principal
amount of Swingline Loans then outstanding.
. "Permitted Acquisition" has such meaning as provided in
Section 7.7.
. "Permitted Affiliate Loan" means a loan or other extension of credit
from Borrower to any of its Subsidiaries which satisfies each of the following
requirements: (i) the loan or other extension of credit is on terms and
conditions acceptable to Agent; (ii) if requested by Agent, the loan or
extension of credit is evidenced by a note executed by the applicable Subsidiary
(an "Affiliate Note"); (iii) if requested by Agent, the Affiliate Note is
secured by a valid and enforceable first priority security interest, lien,
pledge or assignment of, in and to all assets of such Affiliate created in
accordance with applicable law; (iv) if requested by Agent, the Affiliate Note
and all security therefor is pledged and assigned to Agent for the pro rata
benefit of Lenders and the Issuing Bank as security for the Lender Indebtedness,
all on terms approved by Agent; (v) Borrower delivers to Agent any and all
searches, legal opinions, appraisals, corporate resolutions and other items as
Agent may request to evidence, effect or confirm the enforceability under
applicable law of the Affiliate Note, the security therefore and the pledge and
assignment thereof to Agent; and (vi) all payments to Borrower under the
Affiliate Note are net of any taxes, charges, or other payments required by law
of any nation, state or political subdivision thereof to be withheld or deducted
from, or otherwise payable by such Affiliate in connection with, any payment due
to Borrower under the Affiliate Note, and such Affiliate shall agree to take all
such other actions with respect to such tax, charge or payment as required of
Borrower with respect to Taxes under Section 4.13; and (vii) Borrower reimburses
Agent for all costs, fees and expenses, including, without limitation,
attorney's fees incurred in connection with its review, preparation or
evaluation of any of the foregoing.
. "Permitted Investment" has such meaning as provided in
Section 7.4.
. "Person" means an individual, a Corporation or a
government or any agency or subdivision thereof, or any other
entity.
. "Pledge Agreement" has such meaning as provided in Section
5.2.
. "Post Default Pro Rata Percentage" means, as to each Lender, a
percentage, determined by Agent as of the date on which an Event of Default
occurs, by dividing (i) the amount of such Lender's Pro Rata Share then
outstanding, by (ii) the sum of (x)the total amount of all Lenders' Pro Rata
Shares then outstanding, plus (y) the total principal amount then outstanding
under the CoreStates Line.
. "Prime Rate" means the annual interest rate established from time to
time by CoreStates and generally known by CoreStates as its "prime rate",
whether published by it publicly or only for the internal guidance of its loan
officers. The prime rate is used merely as a pricing index and is not and should
not be considered to represent the lowest or best rate available to a borrower.
The Prime Rate shall change automatically and simultaneously with any change in
CoreStates' prime rate.
. "Pro Rata Percentage" means, as to each Lender,
the percentage set forth next to such Lender's name on Schedule B
hereto.
. "Pro Rata Share" means, as to each Lender, the amount set
forth next to such Lender's name on Schedule B hereto.
. "Rate Period" shall mean for any portion of the Revolver for which
the Borrower elects the LIBOR Rate, the period of time for which such rate shall
apply to such principal portions. The Rate Period for the LIBOR Rate shall be
for periods of one, two, three or six months.
. "Reimbursement Obligation" means the obligation of Borrower
to reimburse the Issuing Bank and the Lenders on account
of any drawing under any Letter of Credit.
. "Required Lenders" means, at any time, Lenders holding Pro
Rata Shares aggregating at least sixty-six and two-thirds
percent (66 2/3%) of the then outstanding principal balance of the Loans.
. "Revolver Notes" and "Revolver Note" has such meaning as
provided in Section 2.1(a).
. "Security Agreements" has such meaning as provided in
Section 5.1.
. "Special Materials" means any and all materials which, under
Environmental Requirements, require special handling in use, generation,
collection, storage, treatment or disposal, or payment of costs associated with
responding to the lawful directives of any court or agency of competent
jurisdiction. Special Materials shall include, without limitation: (i) any
flammable substance, explosive, radioactive material, hazardous materials,
hazardous waste, toxic substance, solid waste, pollutant, contaminant or any
by-product of any substance specified in or regulated by any Environmental
Requirements (including but not limited to any "hazardous substance" as defined
in the Comprehensive Environmental Response, Compensation and Liability Act of
1980 as amended or any similar applicable state or local law), (ii) any toxic
chemical or other toxic substance from or related to industrial, commercial or
institutional activities, and (iii) asbestos, gasoline, diesel fuel, motor oil,
waste and used oil, heating oil and other petroleum products or compounds,
polychlorinated biphenyls, radon, urea formaldehyde and lead-containing
materials.
. "Subordinated Debt" means Indebtedness of Borrower to a Person with
Agent's consent and which Indebtedness has been subordinated in payment and all
other respects to all Lender Indebtedness on terms and conditions approved by
the Required Lenders.
. "Surety Agreements" has such meaning as provided in Section
5.3.
. "Subsidiary" means a Person (a) which is organized under the laws of
the United States or any State thereof, or any other country or jurisdiction,
and (b) of which more than fifty percent (50%) of its outstanding voting stock
of every class (or other voting equity interest) is owned by Borrower or
Guarantors or one or more of their respective Subsidiaries.
. "Swingline Loan" and "Swingline Loans" has such meaning as
provided for in Section 2.5.
. "Swingline Limit" means One Million Dollars ($1,000,000.00).
. "Swingline Note" has such meaning as provided in Section 2.5.
. "Total Capital" means, at any time, the sum of Total
Indebtedness and shareholder's equity, all determined on a
Consolidated Basis and in accordance with GAAP.
. "Total Indebtedness" means, at any time, all Indebtedness
of Borrower and its Subsidiaries for borrowed money and
under Capital Lease Obligations, all determined on a Consolidated Basis.
. CREDIT FACILITIES; USE OF PROCEEDS.
. Revolving Credit Commitment.
() Subject to the terms and conditions contained herein, each
Lender will establish for Borrower for and during the period from the date
hereof and until April 8, 2001 (the "Contract Period"), a revolving credit
facility (all such revolving credit facilities, but excluding the Swingline
Loan(s), shall be collectively referred to as the "Revolver") pursuant to which
Lenders will, from time to time, in accordance with their respective Pro Rata
Percentage, severally and not jointly, make Advances to Borrower in an aggregate
amount not exceeding at any time the Maximum Amount less (i) the aggregate face
amount of all Letter of Credit Advances, and (ii) the aggregate amount
outstanding under the Swingline Loan. Within the limitations set forth above,
Borrower may borrow, repay and reborrow under the Revolver. The Revolver shall
be subject to all terms and conditions set forth in all of the Loan Documents,
which terms and conditions are incorporated herein. Borrower's obligation to
repay the Advances and all sums at any time payable by Borrower in connection
with any letter of Credit Advances shall be evidenced by Borrower's promissory
notes (collectively, the "Revolver Notes" and individually a "Revolver Note")
delivered to each Lender, which shall be in the respective principal amounts of
each Lender's Pro Rata Share and which shall be in the form attached hereto as
Exhibit "A", with the blanks appropriately filled in.
() Subject to the terms and conditions of this Agreement, each
Lender agrees to lend to Borrower an amount equal to such Lender's respective
Pro Rata Percentage of each Advance requested by Borrower. The outstanding
amount of Advances by each Lender shall not exceed such Lender's Pro Rata Share
(as such amount may change from time to time in accordance with the terms of
this Agreement).
() Upon delivery of written notice to Agent, Borrower may
permanently reduce the Maximum Amount by increments of not less than
$1,000,000.00. Such reduction shall become effective three (3) Business Days
following receipt by Agent of such notice. All references herein to the Maximum
Amount means the original Maximum Amount as it may be reduced from to time in
accordance with the terms hereof. Failure to make any payment necessary to
reduce the actual Outstanding Credit to conform to the reduced Maximum Amount
within three (3) Business Days of delivery by Borrower of the foregoing notice
shall constitute an Event of Default.
. Use of Proceeds. Borrower agrees to use Advances under the
Revolver to refinance existing debt to CoreStates and
NationsBank, N.A., respectively, and for working capital and general
corporate purposes, including the financing of Permitted
Acquisitions and Permitted Investments.
. Method of Revolver Advances.
() On any Business Day, Borrower may request an Advance by
delivering to the officer designated by Agent such request and back-up
documentation as Agent may from time to time require. Subject to the terms and
conditions of this Agreement, Agent may make the proceeds of a cash Advance
available to Borrower by crediting or transferring, as the case may be, such
proceeds to Borrower's operating account with Agent. Each request for an Advance
shall be conclusively presumed to be made by a Person authorized by Borrower to
do so. However, Agent may require that specified officers of Borrower sign, make
or confirm any Advance request. Agent may, in its discretion, treat every
request for an Advance to accrue interest at the Base Rate as a request for a
Swingline Loan to the extent the requested amount will not cause all outstanding
Swingline Loans to exceed the Swingline Limit, and as a request for an Advance
in the amount of the excess.
() All Advances requested by Borrower to bear interest at the
Base Rate must be requested by 11:00 A.M., Philadelphia time, on the date such
Advance is to be made. All Advances requested by Borrower to bear interest at
the LIBOR Rate, or conversions of Advances subject to the Base Rate to the LIBOR
Rate, must be requested by 11:00 A.M., Philadelphia time, three (3) Good
Business Days prior to the date such Advance is to be made or converted.
() Each requested Advance shall be in a minimum amount
of $1,000,000.00 and in increments of $250,000.00 in
excess thereof.
() If requested by Borrower, Agent may fund Advances in
currencies other than United States Dollars ("Foreign Currency Advances"),
provided that such currency is approved by Agent and all Lenders and such
currency is freely transferrable and convertible into United States Dollars and
readily available to banks in the London interbank market. All Foreign Currency
Advances shall be subject to such rules, limitations, fees and conditions,
including, without limitation, procedures for conversion of such currencies into
United States Dollars, as Agent shall establish from time to time.
. Letter of Credit Advances.
() Letters of Credit. Subject to the terms and conditions
contained herein, Issuing Bank shall issue for the account of Borrower under the
Revolver standby letters of credit (each a "Letter of Credit"). All Letters of
Credit shall be in form and content satisfactory to Issuing Bank, at its sole
discretion, with a term not to exceed the earlier to occur of (i) twelve (12)
months, or (ii) the expiration date of the Contract Period. Notwithstanding the
foregoing, (1) at no time shall the aggregate face amount of all outstanding
Letters of Credit exceed the amount of Ten Million Dollars ($10,000,000.00); and
(2) at no time shall the sum of (x) outstanding principal balance of the
Revolver, (y) the aggregate face amount of all outstanding Letters of Credit and
(z) the aggregate amount outstanding under Swingline Loans, exceed the Maximum
Amount.
() Letter of Credit Documents. Borrower will execute a Letter
of Credit application and Letter of Credit agreement, and such other documents
as may be required by Issuing Bank in connection with the issuance of Letters of
Credit hereunder. The outstanding face amount of all Letters of Credit issued
pursuant hereto will reduce Borrower's ability to borrow under the Revolver as
if such face amount were a cash Advance under the Revolver. In the event that
Issuing Bank pays any sums due pursuant to such Letters of Credit for any
reason, such payment shall be deemed to be an Advance under the Revolver
repayable by Borrower pursuant to the terms hereof.
() Existing Letters of Credit. The existing letters of credit
described on Schedule 2.4(c) attached hereto previously issued by the Issuing
Bank for the account of Borrower shall be deemed issued under this Section 2.4
and shall constitute Letter of Credit Advances.
() Participation. Immediately upon the issuance of any Letter
of Credit, and without further action on the part of Issuing Bank or any of the
Lenders, Issuing Bank is deemed to have granted to each Lender, and each Lender
is deemed to have acquired from Issuing Bank, an undivided participating
interest (without recourse to or warranty by Issuing Bank), in accordance with
each such Lender's respective Pro Rata Percentage, in all of Issuing Bank's
rights and liabilities with respect to such Letter of Credit. Each Lender shall
be directly and unconditionally obligated without deduction or setoff of any
kind, and without regard to the occurrence of an Event of Default, to Issuing
Bank, according to each Lender's Pro Rata Percentage, to reimburse Issuing Bank
for draws honored or paid by Issuing Bank at any time (including, without
limitation, following commencement of any bankruptcy, reorganization,
receivership or dissolution proceeding with respect to Borrower) under any
Letter of Credit.
() Reimbursement Obligation. In order to induce the Issuing
Bank to issue, extend and renew any Letter of Credit, Borrower hereby agrees to
reimburse or pay to the Issuing Bank, for the account of the Issuing Bank or (as
the case may be) the Lenders, with respect to each such Letter of Credit for the
account of Borrower issued, extended or renewed by the Issuing Bank hereunder as
follows:
() on each date that any draft presented
under any such Letter of Credit is honored by the Issuing
Bank or the Issuing Bank otherwise makes payment with respect thereto, (A) the
amount paid by the Issuing Bank under or with respect to such Letter of Credit,
and (B) the amount of any taxes, fees, charges or other costs and expenses
whatsoever incurred by the Issuing Bank in connection with any payment made by
the Issuing Bank under, or with respect to, such Letter of Credit; and
() upon the expiration of the Contract
Period, termination of the Revolver or demand for payment
thereof, an amount equal to 105% of the then aggregate face amount of all
outstanding Letters of Credit issued hereunder for the account of a Borrower,
which amount shall be held by the Issuing Bank as cash collateral for all
Reimbursement Obligations, or Borrower shall deliver to Agent for the benefit of
Lenders such other security for the Reimbursement Obligation as the Issuing Bank
and the Required Lenders shall reasonably require.
Each such payment shall be made to the Issuing Bank at its head office in
immediately available funds. Interest on any and all amounts remaining unpaid by
the Borrower under this Section 2.4 at any time from the date such amounts
become due and payable (whether as stated in this Section 2.4, by acceleration
or otherwise) until payment in full (whether before acceleration or otherwise)
until payment in full (whether before or after judgment) shall be payable to the
Issuing Bank, for the account of Issuing Bank or (as the case may be) the
Lenders, on demand at the Default Rate.
() Letter of Credit Payments. If any draft shall be presented
or other demand for payment shall be made under any Letter of Credit, the
Issuing Bank shall make reasonable good faith efforts to notify the Borrower of
the date and amount of the draft presented or demand for payment and of the date
and time when it expects to pay such draft or honor such demand for payment, but
the failure to provide such notice shall not affect Borrower's Reimbursement
Obligation. The responsibility of the Issuing Bank to the Borrower shall be only
to determine that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment shall be in conformity in
all material respects with such Letter of Credit. After the date that such draft
is paid or other payment is made by the Issuing Bank, the Issuing Bank shall
promptly notify the Lenders of the amount of any unpaid Reimbursement
Obligation. All such unpaid Reimbursement Obligations shall be deemed to be
Advances. No later than 1:00 p.m. (Philadelphia time) on the Business Day next
following the receipt of such notice, each Lender shall make available to the
Agent, at the Agent's head office, in immediately available funds, such Lender's
Pro Rata Percentage of such unpaid Reimbursement Obligations, together with an
amount equal to the product of (i) the average, computed for the period referred
to in clause (ii) 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) a fraction, the numerator of which is the number of days that have
elapsed from and including the date the Issuing Bank paid the draft presented
for honor or otherwise made payment until the date on which such Lender's Pro
Rata Percentage of such unpaid Reimbursement Obligation shall become immediately
available to the Agent, and the denominator of which is 360.
() Obligations Absolute.
() The Borrower's Reimbursement Obligations
shall be absolute and unconditional under any and all
circumstances and irrespective of the occurrence of any Event of Default or any
condition precedent whatsoever or any set-off, counterclaim or defense to
payment which Borrower may have or have had against the Issuing Bank, the Agent,
the Lenders or any beneficiary of a Letter of Credit. Borrower further agrees
that the Issuing Bank, the Agent and the Lenders shall not be responsible for,
and Borrower's Reimbursement Obligations shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any dispute between or among Borrower, the
beneficiary of any Letter of Credit or any financing institution or other party
to which any Letter of Credit may be transferred or any claims or defenses
whatsoever of Borrower, against the beneficiary of any Letter of Credit.
() The Issuing Bank, the Agent and the
Lenders shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit issued
under this Agreement. Borrower agrees that any action taken or omitted by the
Issuing Bank, the Agent or the Lenders under or in connection with each such
Letter of Credit and the related drafts and documents, if done in good faith and
not constituting gross negligence, shall be binding upon the Borrower and shall
not result in any liability on the part of the Issuing Bank, the Agent or the
Lenders to the Borrower.
() Reliance by the Issuing Bank and the Agent. The Issuing
Bank and the Agent shall be entitled to rely, and shall be fully protected in
relying upon, any Letter of Credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Issuing Bank or the Agent in good faith.
. Swingline Loans. Subject to the terms and conditions hereof, Agent,
in reliance on the agreements of the other Lenders set forth in Section 2.7,
may, in its absolute discretion, make swing line loans (all such swing line
loans shall be collectively referred to as the "Swingline Loans" and each such
loan being referred to as a "Swingline Loan") to the Borrower from time to time
during the Contract Period, provided that Agent shall not make any Swingline
Loan if, after giving effect to any such Swingline Loan and the use of the
proceeds thereof, (i) the aggregate principal amount of all Swingline Loans then
outstanding would exceed the Swingline Limit, or (ii) the Outstanding Credit at
such time would exceed the Maximum Amount in effect at such time. During the
Contract Period, the Borrower may, subject to the terms hereof, borrow, prepay
and reborrow Swingline Loans in whole or in part, all in accordance with the
terms and conditions hereof. Agent may terminate Swingline Loan availability at
any time in its absolute discretion. No Swingline Loan shall be made by Agent
after the expiration of the Contract Period. The obligation of Borrower to repay
Swingline Loans shall be evidenced by a promissory note (the "Swingline Note")
payable to the order of the Agent in the face amount of the Swingline Limit,
which shall be in the form attached hereto as Exhibit "B", with the blanks
appropriately filled in.
. Procedure for Swingline Borrowing.
() Subject to the other terms hereof, Borrower may request a
Swingline Loan on any Business Day during the Contract Period by delivering to
the officer designated by Agent such request and back-up documentation as Agent
may from time to time require. Subject to the terms and conditions of this
Agreement, Agent may make the proceeds of each Swingline Loan available to
Borrower by crediting or transferring, as the case may be, such proceeds to
Borrower's operating account with Agent. Each request for a Swingline Loan shall
be conclusively presumed to be made by a Person authorized by Borrower to do so.
However, Agent may require that specified officers of Borrower sign, make or
confirm any such request.
() All requests for a Swingline Loan must be received by Agent
prior to 2:00 P.M. (Philadelphia time) on the requested date of advance, and
shall specify the amount of the requested Swingline Loan, which shall be in an
aggregate minimum amount of One Hundred Thousand Dollars ($100,000.00) or a
whole multiple of One Hundred Thousand Dollars ($100,000.00) in excess thereof.
The Borrower may at any time and from time to time, prepay the Swingline Loans,
in whole or in part, without premium or penalty, by notifying (which notice may
be given by telephone (to be promptly confirmed in writing, including by
facsimile)) Agent prior to 12:00 P.M., Philadelphia time, on any Business Day of
the date and amount of prepayment. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein.
Partial prepayments shall be in an aggregate principal amount of One Hundred
Thousand Dollars ($100,000.00) or a whole multiple of One Hundred Thousand
Dollars ($100,000.00) in excess thereof.
. Refunding of Swingline Loans; Participations in Swingline
Loans.
() The Agent may, on behalf of the Borrower (which hereby
irrevocably authorizes the Agent to act on its behalf in such regard), at any
time and from time to time, request each Lender to make an Advance under the
Revolver (which shall bear interest at the Base Rate) in an amount equal to such
Lender's Pro Rata Percentage of the amount of the aggregate outstanding
principal amount of the Swingline Loans, or such portion thereof as Agent
desires to have repaid, regardless of whether the conditions set forth in
Section 12 have been satisfied in connection therewith. Unless any of the events
described in Section 13.1(e) or (f) shall have occurred with respect to the
Borrower (in which event the procedures of Subparagraph (b) of this Section
shall apply) each Lender shall make its Pro Rata Percentage of the Requested
Advance available to the Agent for the account of Agent at Agent's office prior
to 11:00 A.M., Philadelphia time, in immediately available funds on the Business
Day next succeeding the date such notice is given. The proceeds of such Advances
shall be immediately applied to repay the relevant Swingline Loans. Effective on
the day such Advances are made, the relevant Swingline Loans so paid shall no
longer be outstanding as a Swingline Loan and shall no longer be due under the
Swingline Note. The Borrower authorizes Agent, upon written notice to the
Borrower, to charge the Borrower's accounts with Agent (up to the amount
available in each such account) in order to immediately pay the amount of its
outstanding Swingline Loans to the extent amounts received from the Lenders are
not sufficient to repay in full such outstanding Swingline Loans.
() If prior to the making of an Advance pursuant to
Subparagraph (a) of this Section 2.6 one of the events described in Subparagraph
13.1(e) or (f) shall have occurred and be continuing with respect to the
Borrower, each Lender will, on the date such Advance was to or would have been
made pursuant to the notice in Subparagraph (a) above, purchase an undivided
participating interest in the outstanding Swingline Loans in an amount equal to
(i) its Pro Rata Percentage times (ii) the aggregate principal amount of
Swingline Loans then outstanding. Each Lender will immediately transfer to
Agent, in immediately available funds, the amount of its participation, and upon
receipt thereof Agent will deliver to such Lender a Swingline Loan Participation
Certificate dated the date of receipt of such funds and in such amount.
() Whenever, at any time after any Lender has purchased a
participating interest in a Swingline Loan, Agent receives any payment on
account thereof, Agent will distribute promptly to such Lender its participating
interest in such amount (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Lender's participating
interest was outstanding and funded), provided, however, that in the event that
such payment received by Agent is required to be returned, such Lender will
return to Agent any portion thereof previously distributed by Agent to it.
() Each Lender's obligation to make the Advances referred to
in Subparagraph (a) above and to purchase participating interests pursuant to
Subparagraph (b) above shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation, (i) any set-off,
counterclaim, recoupment, defense or other right which such Lender or the
Borrower may have against Agent, the Borrower or any other Person for any reason
whatsoever, (ii) the occurrence or continuance of any Event of Default, (iii)
any adverse change in the condition (financial or otherwise) of the Borrower,
(iv) any breach of this Agreement or any other Loan Document by the Borrower,
any Lender or any other Person, or (v) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing. Without
limiting the foregoing, each such Advance shall be made by Lenders
notwithstanding that (i) the amount of the Advance does not meet the minimum
amount required under Section 2.3, (ii) any conditions to Advances under Section
12 may not then be satisfied, (iii) an Event of Default exists and/or (iv) the
Advance is requested after the expiration of the Contract Period.
. Payments Among Lenders.
() Amounts of principal paid to Agent by Borrower in
connection with the Revolver from time to time shall be applied first to repay
Swingline Loans and then to each Lender's respective Pro Rata Share of the
Advances. Interest shall accrue and each Lender shall be entitled to receive
interest from Borrower at the applicable rate on the outstanding dollar amount
of the Advances actually funded by such Lender. Sums payable to Lenders as a
result of such payments shall, subject to the rights of offset otherwise
described herein, be paid by Agent promptly to the Lenders in federal funds via
wire transfers.
() With respect to all requests for Advances, and in lieu of
Advances funded by Agent under the Swingline Loan, Agent shall provide the
Lenders with notice that Borrower has requested an Advance (whether subject to
the Base Rate or the LIBOR Rate, the actual interest rate and the Rate Period),
on the same Business Day as such request, and request each Lender to provide
Agent with such Lender's Pro Rata Percentage of such requested Advance prior to
Agent's making such Advance. Upon receipt of such notice from Agent prior to
12:00 P.M., Philadelphia time, on the date the Advance is requested, each Lender
shall remit to Agent its respective Pro Rata Percentage of such requested
Advance, prior to 2:00 P.M. Philadelphia time, on the Business Day Agent is
scheduled to make such Advance. Neither Agent nor any other Lender shall be
obligated, for any reason whatsoever, to remit the share of any other Lender.
Agent shall not be required to make the full amount of the requested Advance
unless and until it receives funds representing each other Lender's Pro Rata
Percentage of such requested Advance, but Agent shall remit to Borrower that
portion of the requested Advance equal to the Pro Rata Percentages of such
requested Advance which it has received from the Lenders.
() If Agent does not receive each other Lender's Pro Rata
Percentage of such requested Advance, and Agent elects, in its sole discretion,
without any obligation at any time to do so, to make the requested Advance on
behalf of Lenders, or any of them, Agent shall be entitled to receive each
Lender's Pro Rata Percentage of each Advance, together with interest at a per
annum rate equal to the applicable interest rate set forth in Section 3.1 below
for such Advance during the period commencing on the date such Advance is made
and ending on (but excluding) the date Agent recovers such amount. Each Lender
is absolutely and unconditionally obligated, without deduction or setoff of any
kind, to forward to Agent its Pro Rata Percentage of each Advance made pursuant
to the terms of this Agreement. To the extent Agent is not reimbursed by such
Lender, Borrower shall repay Agent immediately on demand, such amount.
. Defaulting Lenders. To the extent and during the time period in which
any Lender fails to provide or delays providing its respective payment to Agent
pursuant to any of the provisions of Sections 2.7 or 2.8, or any other payment
payable by a Lender to Agent under the terms of this Agreement (any such Lender
being referred to, during such period, as a "Defaulting Lender" and any such
payment being referred to as a "Delinquent Payment"), and without limiting any
other rights or remedies otherwise available to Agent or another Lender
hereunder, at law or in equity, Agent may: (i) set off the obligations of such
Defaulting Lender against any distributions or payments of the Lender
Indebtedness to which such Lender would otherwise be entitled at any time, (ii)
withhold such distributions or payments of such Lender Indebtedness to which
such Defaulting Lender would otherwise be entitled and make such distributions
or payments to Agent or other applicable Person in an amount equal to, and as a
repayment of, the Delinquent Payment, and/or (iii) recover any and all actual
losses and damages Agent may incur (including without limitation, reasonable
attorneys' fees) from any Defaulting Lender. In addition, notwithstanding any
definition or other provision of this Agreement to the contrary, during any
period in which a Lender is a Defaulting Lender, all calculations for voting
purposes among the Lenders shall be made as if the Defaulting Lender were not a
Lender and not a party to this Agreement. Further, a Defaulting Lender shall pay
to Agent interest on the Delinquent Payment from the date due until paid at the
Federal Funds Effective Rate. Nothing contained in this Section 2.9 shall (i)
require Agent or any other Lender to pay any Delinquent Payments for or on
behalf of a Defaulting Lender, or (ii) affect a Delinquent Lender's obligations
to fund future Advances in accordance with its Pro Rata Percentage as set forth
on Schedule B.
. INTEREST RATES.
. Revolver Interest Rate Options. Provided that no Event of Default
shall have occurred, interest on the unpaid principal balance of the Revolver
will accrue from the date of advance until final payment thereof, at a rate or
rates selected by Borrower from one of the two (2) interest rate options set
forth below, subject to the restrictions and in accordance with the procedures
set forth in this Agreement:
() the Base Rate; or
() the LIBOR Rate.
() Request for Base Rate. If the Borrower desires that the
Base Rate shall apply to all or part of the principal balance under the
Revolver, Borrower shall give Agent a Base Rate Notification. Upon delivery by
Borrower to Agent of a Base Rate Notification, the principal balance under the
Revolver identified in such Base Rate Notification shall accrue interest at the
Base Rate as follows: (i) with respect to the principal amount of any new
Advance under the Revolver, from the date of such Advance until the effective
date of another interest rate chosen for such amount in accordance with the
terms of this Agreement; and/or (ii) with respect to the principal amount of any
portion of the Revolver outstanding and accruing interest at the LIBOR Rate at
the time of the Base Rate Notification related to such principal amount, from
the expiration of the then current Rate Period related to such principal amount
until the effective date of another interest rate option chosen for such amount
in accordance with the terms of this Agreement.
() Request for LIBOR Rate. If the Borrower desires that all or
part of the principal balance under the Revolver accrue interest at the LIBOR
Rate, Borrower shall give Agent a LIBOR Rate Notification. Upon delivery by
Borrower to Agent of a LIBOR Rate Notification, that portion of the principal
balance outstanding under the Revolver identified in such LIBOR Rate
Notification shall accrue interest at the LIBOR Rate as follows: (i) with
respect to the principal amount of any new Advance under the Revolver, from the
date of such Advance until the end of the Rate Period specified in such LIBOR
Rate Notification; and/or (ii) with respect to the principal amount of any
portion of the Revolver outstanding and accruing interest at another LIBOR Rate
at the time of the LIBOR Rate Notification related to such principal amount,
from the expiration of the then current Rate Period related to such principal
amount until the end of the Rate Period specified in such LIBOR Rate
Notification; and/or (iii) with respect to all or any portion of the principal
amount of the Revolver outstanding and earning interest at the Base Rate at the
time of such LIBOR Rate Notification, from the date set forth in such LIBOR Rate
Notification until the end of the Rate Period specified in such LIBOR Rate
Notification.
() Certain Provisions Concerning Revolver Interest Rates.
Borrower understands and agrees that: (i) subject to the provisions of this
Agreement, the interest rates set forth in Section 3.1 above may apply
simultaneously to different portions of the outstanding principal of the
Revolver; (ii) the LIBOR Rate may apply simultaneously to various portions of
the outstanding principal of the Revolver for various Rate Periods; (iii) the
LIBOR Rate applicable to any portion of the outstanding principal of the
Revolver may be different from the LIBOR Rate applicable to any other portion of
the outstanding principal of the Revolver; (iv) Advances under the Revolver
accruing interest at the LIBOR Rate must be in increments of at least One
Million Dollars ($1,000,000.00); and (v) no more than six (6) Advances under the
Revolver accruing interest at the Rate may be outstanding at any one time.
() Unlawful for a Lender. In the event that, as a result of
any changes in applicable law or regulation or the interpretation thereof, it
becomes unlawful for a Lender to maintain or fund any Loans under the Revolver
at the LIBOR Rate, then such Lender shall immediately notify Agent who shall
immediately notify the other Lenders and Borrower thereof and such Lender's
obligations to make, convert to, or maintain any Loans under the Revolver at the
LIBOR Rate shall be suspended until such time as such Lender may again cause the
LIBOR Rate to be applicable to its share of any Loans under the Revolver and,
until such time, such Lender's share of Loans under the Revolver subject to the
LIBOR Rate shall accrue interest at the Base Rate. Promptly after becoming aware
that it is no longer unlawful for such Lender to maintain or fund Loans at the
LIBOR Rate, such Lender shall notify Agent who will notify Borrower and the
other Lenders thereof and such suspension shall cease to exist.
() Base Rate Option Fall Back. After expiration of any Rate
Period, any principal portion of the Revolver corresponding to such Rate Period
which has not been converted or renewed in accordance with the terms of this
Agreement shall accrue interest automatically at the Base Rate from the date of
expiration of such Rate Period until paid in full, unless and until the Borrower
requests a conversion to the LIBOR Rate in accordance with the terms of this
Agreement.
() LIBOR Rate Unascertainable or Unavailable. If, at any time,
Agent shall reasonably determine (which determination shall be conclusive) that
the LIBOR Rate is unavailable or that adequate means for ascertaining the LIBOR
Rate do not exist, Agent shall promptly notify Borrower and Lenders of such
determination. Upon such determination, the right of Borrower to select,
maintain and/or convert to the LIBOR Rate shall be suspended until notice from
Agent to Borrower and Lenders that the LIBOR Rate is again available or
ascertainable and, until such time, the outstanding balance under the Revolver
shall accrue interest at the Base Rate.
. Swingline Loan Interest. Interest shall accrue on the unpaid
principal balance of the Swingline Loans from the date
of advance until final payment thereof at the Base Rate.
. Default Interest. Interest will accrue on the principal balance of
the Revolver and the Swingline Loan, respectively, after the occurrence of an
Event of Default or expiration of the Contract Period at a rate which is two
percent (2%) in excess of the non-default rate otherwise set forth for the
applicable facility (the "Default Rate").
. Post Judgment Interest. Any judgment obtained for sums
due hereunder or under the Loan Documents will accrue
interest at the Default Rate until paid.
. Calculation. Interest will be computed on the basis of a
year of 360 days and paid for the actual number of days
-----------
elapsed.
. Limitation of Interest to Maximum Lawful Rate. In no event will the
rate of interest payable hereunder exceed the maximum rate of interest permitted
to be charged by applicable law (including the choice of law rules) and any
interest paid in excess of the permitted rate will be refunded to Borrower. Such
refund will be made by application of the excessive amount of interest paid
against any sums outstanding hereunder and will be applied in such order as
Agent may determine. If the excessive amount of interest paid exceeds the sums
outstanding, the portion exceeding the sums outstanding will be refunded in cash
by Agent. Any such crediting or refunding will not cure or waive any default by
Borrower. Borrower agrees, however, that in determining whether or not any
interest payable hereunder exceeds the highest rate permitted by law, any
non-principal payment, including without limitation prepayment fees and late
charges, will be deemed to the extent permitted by law to be an expense, fee,
premium or penalty rather than interest.
. PAYMENTS AND FEES.
. Interest Payments. Interest on all Swingline Loans and interest on
Advances under the Revolver accruing at the Base Rate will be due and payable
monthly, in arrears, on the first day of each calendar month commencing on the
first day of the first calendar month after the date hereof. Interest on
Advances under the Revolver accruing at the LIBOR Rate will be due an payable on
the earlier to occur of the (i) last day of the Rate Period corresponding to
such portion of the Revolver, (ii) the ninetieth (90th) day after the date of
advance to Borrower of such portion of the Revolver, or (iii) the expiration of
the Contract Period. With respect to Advances under the Revolver accruing at a
LIBOR Rate with a Rate Period in excess of 90 days, accrued interest shall also
be due on the last day of the Rate Period. All interest accruing on the Credit
Facilities on and after an Event of Default or expiration of the Contract Period
shall be payable ON DEMAND.
. Principal Payments. Borrower will pay the outstanding principal
balance of the Revolver, together with any accrued and unpaid interest thereon,
and any other sums due pursuant to the terms hereof, ON DEMAND after the
occurrence of an Event of Default or after expiration of the Contract Period.
Borrower will pay the outstanding principal balance of the Swingline Loans,
together with accrued and unpaid interest thereon, ON DEMAND made at any time by
Agent. Borrower acknowledges that Agent may make demand for sums outstanding
under the Swingline Loans, at any time, for any reason and for no reason.
. Letter of Credit Fees. For each issuance or renewal of a Letter of
Credit, Borrower will pay to Agent, for the pro rata benefit of Lenders in
accordance with their respective Pro Rata Percentage, an issuance or renewal fee
in an amount equal to the Applicable Rate Margin on a per annum basis
(calculated at the time of issuance of the Letter of Credit) of the face amount
of such Letter of Credit, payable quarterly in arrears. In addition, Borrower
shall pay to Issuing Bank for its own account a fee equal to 0.125% per annum of
the face amount of each Letter of Credit, payable in full coincident with and as
a condition of the issuance or renewal of each Letter of Credit, together with
such other fees and charges in connection with the negotiation or cancellation
of each Letter of Credit as may be customarily charged by Issuing Bank. All
Letter of Credit fees shall be computed on the basis of a year of 360 days.
. Loan Fee. Borrower shall have paid to Agent, for the pro rata benefit
of Lenders in accordance with their respective Pro Rata Percentage, on or before
the date hereof, a loan fee of One Hundred Fifty Thousand Dollars ($150,000.00)
(.25% of the Maximum Amount); which fee is fully earned and non-refundable for
any reason, including any subsequent reduction in the Maximum Amount.
. Usage Fee. So long as the Revolver is outstanding and has not been
terminated, and the Lender Indebtedness has not been satisfied in full, Borrower
shall unconditionally pay to Agent, for the pro rata benefit of Lenders in
accordance with their respective Pro Rata Percentage, a fee equal to .25% per
annum of the daily unused portion of the Revolver (which shall be calculated as
the difference between the Maximum Amount (or such greater amount if the Maximum
Amount is ever increased), minus the outstanding Advances under the Revolver and
the outstanding Swingline Loans at the close of business on the date such
calculation is made), which fee shall be computed on a quarterly basis in
arrears and shall be due and payable on the first day of each quarter commencing
on July 1, 1998. The foregoing fee shall be calculated on the basis of a year of
360 days and paid for the actual number of days elapsed.
. Late Charge. In the event that Borrower fails to pay any principal,
interest or other fees or expenses payable hereunder for a period of at least
fifteen (15) days after the date such payment is first due, in addition to
paying such sums, Borrower will pay to Agent, for the pro rata benefit of
Lenders in accordance with their respective Pro Rata Percentage, a late charge
equal to five percent (5%), of such past due payment as compensation for the
expenses incident to such past due payment.
. Termination of Revolver. Borrower may terminate the Revolver
upon ninety (90) days prior written notice to Agent.
-----------------------
. Payment Method. Borrower irrevocably authorizes Agent to debit all
payments required to be made by Borrower hereunder or under the Credit
Facilities on the date due, from any deposit account maintained by Borrower with
Agent or to make a Base Rate Advance under the Revolver or a Swingline Loan to
cover such payments. Otherwise, Borrower will be obligated to make such payments
directly to Agent. All payments are to be made in immediately available funds.
If Agent accepts payment in any other form, such payment shall not be deemed to
have been made until the funds comprising such payment have actually been
received by or made available to Agent.
. Application of Payments.
() Subject to the terms and conditions of Article 14 below,
any and all payments on account of the Credit Facilities will be applied to
accrued and unpaid interest, outstanding principal and other sums due hereunder
or under the Loan Documents, in such order as Agent, in its discretion, elects;
provided, however, that, as long as no Event of Default as occurred, Agent will
attempt to apply payments first to sums accruing interest at the Base Rate
before applying payments to Advances accruing interest at the Rate if such
payment would be made prior to expiration of the Rate Period for such Advance.
() If Borrower makes a payment or payments and such payment or
payments, or any part thereof, are subsequently invalidated, declared to be
fraudulent or preferential, set aside or are required to be repaid to a trustee,
receiver, or any other person under any bankruptcy act, state or federal law,
common law or equitable cause, then to the extent of such payment or payments,
the obligations or part thereof hereunder intended to be satisfied shall be
revived and continued in full force and effect as if said payment or payments
had not been made.
() Prior to the occurrence of an Event of Default, all
payments received by Agent from Borrower shall be applied to the Credit
Facilities or the CoreStates Line as designated by Borrower. After the
occurrence of an Event of Default and during the continuance thereof, all
payments received by Agent from Borrower (or for the benefit of Borrower) shall
be applied as provided in Section 14.4(d).
. Loan Account. Agent will open and maintain on its books a loan
account (the "Loan Account") with respect to Credit Facilities made, repayments,
prepayments, the computation and payment of interest and fees and the
computation and final payment of all other amounts due and sums paid to Agent
under this Agreement. Except in the case of manifest error in computation, the
Loan Account will be conclusive and binding on the Borrower as to the amount at
any time due to Lenders from Borrower under this Agreement or the other Loan
Documents.
. Indemnity; Loss of Margin. Borrower will indemnify Agent and each
Lender against any loss or expense which Agent or such Lender sustains or incurs
as a consequence of an Event of Default, including, without limitation, any
failure of Borrower to pay when due (at maturity, by acceleration or otherwise)
any principal, interest, fee or any other amount due under this Agreement or the
other Loan Documents. Each Lender will notify Agent if such Lender sustains or
incurs any such loss or expense and will provide Agent with a brief explanation
of the calculation of the amount thereof. If Agent or any Lender sustains or
incurs any such loss or expense Agent will from time to time notify Borrower in
writing of the amount determined in good faith by the Agent or such Lender to be
necessary to indemnify Agent or such Lender for the loss or expense. Such amount
will be due and payable by Borrower to Agent or such Lender within ten (10) days
after presentation by Agent to Borrower of a statement setting forth a brief
explanation of the calculation of such amount, which statement shall be
conclusively deemed correct absent manifest error. Any amount payable to the
Agent or any Lender under this Section 4.11 will bear interest at the Default
Rate (for Advances accruing interest at the Base Rate) from the due date until
paid, both before and after judgment.
In the event that any present or future law, rule, regulation, treaty
or official directive or the interpretation or application thereof by any
central bank, monetary authority or governmental authority, or the compliance
with any guideline or request of any central bank, monetary authority or
governmental authority (whether or not having the force of law):
() subjects Agent or any Lender to any tax with respect to any
amounts payable under this Agreement or the other Loan Documents by Borrower or
otherwise with respect to the transactions contemplated under this Agreement or
the other Loan Documents (except for taxes on the overall net income of Agent or
any Lender imposed by the United States of America or any political subdivision
thereof); or
() imposes, modifies or deems applicable any deposit
insurance, reserve, special deposit, capital maintenance, capital adequacy, or
similar requirement against assets held by, or deposits in or for the account
of, or loans or advances or commitment to make loans or advances by, or Letters
of Credit issued or commitment to issue Letters of Credit by, the Agent or any
Lender; or
() imposes upon Agent or any Lender any other condition
with respect to advances or extensions of credit or
the commitment to make advances or extensions of credit under this Agreement,
and the result of any of the foregoing is to increase the costs of Agent or such
Lender, reduce the income receivable by or return on equity of Agent or such
Lender or impose any expense upon Agent or such Lender with respect to any
advances or extensions of credit or commitments to make advances or extensions
of credit under this Agreement, any Lender so affected shall notify Agent (and
shall provide Agent with a statement concerning such increase in cost, reduction
in income, reduced return on equity or capital, or additional expense) and Agent
shall so notify Borrower in writing that such Lender or the Agent, as the case
may be, has been so affected. Borrower agrees to pay Agent or such Lender the
amount of such increase in cost, reduction in income, reduced return on equity
or capital, or additional expense within ten (10) days after presentation by
Agent of a statement concerning such increase in cost, reduction in income,
reduced return on equity or capital, or additional expense. Such statement shall
set forth a brief explanation of the amount and Agent's or such Lender's
calculation of the amount (in determining such amount the Agent or such Lender
may use any reasonable averaging and attribution methods), which statement shall
be conclusively deemed correct absent manifest error. If the amount set forth in
such statement is not paid within ten (10) days after such presentation of such
statement, interest will be payable on the unpaid amount at the Default Rate
(for Advances accruing interest at the Base Rate) from the due date until paid,
both before and after judgment.
. Indemnity for LIBOR Portion. Borrower shall indemnify Agent and each
Lender against any loss or expense (including loss of margin) which Agent or any
Lender has sustained or incurred as a consequence of (a) payment, prepayment or
conversion of any LIBOR Rate Portion on a day other than the last day of the
corresponding Rate Period (whether or not any such payment is pursuant to demand
by Agent and whether or not any such payment, prepayment or conversion is
consented to by Agent, unless Agent shall have expressly waived such indemnity
in writing); or (b) attempt by Borrower to revoke in whole or in part any
irrevocable LIBOR Rate Notification pursuant to this Agreement.
If any such loss is sustained, Agent shall from time to time
notify Borrower of the amount determined in good faith by Agent or such Lender,
as the case may be (which determination shall be conclusive), to be necessary to
indemnify Agent or such Lender, as the case may be, for such loss or expense.
Such amount shall be due and payable by Borrower on demand.
. Taxes.
() If any tax, charge or payment (collectively, a "Tax") is
required by law of any nation, state or political subdivision thereof to be
withheld or deducted from, or is otherwise payable by the Borrower in connection
with, any payment due to Agent or any Lender under this Agreement or any of the
Loan Documents, the Borrower shall (i) withhold or deduct the amount of such Tax
from such payment and pay such Tax to the appropriate taxing authority in
accordance with applicable law, (ii) pay to the Agent or the Lenders, as
applicable, such additional amounts as may be necessary so that the net amount
received by the Agent and Lenders with respect to such payment, after
withholding or deducting all Taxes required to be withheld or deducted, is equal
to the full amount payable under this Agreement or any of the Loan Documents,
and (iii) within 30 days after the day of such payment, furnish to the Agent the
original or a certified copy of a receipt for such Tax from the applicable
taxing authority.
() The Borrower shall, promptly upon request by Agent or any
Lender for the payment thereof, pay to the Agent an amount equal to the sum of
(i) all Taxes (other than taxes as are imposed on each Lender's net income, i.e
"Bank Taxes") payable by the Agent or any Lender with respect to any payment due
to Agent or any Lender under this Agreement or any other Loan Documents and (ii)
all Taxes (including Bank Taxes) payable by the Agent or any Lender as a result
of payments made by the Borrower or any Obligor (whether made to a taxing
authority or to the Agent or any Lender) pursuant hereto.
() (i) Each Lender that is not a "United States person" (as
such term is defined in Section 7701(a)(30) of the Internal Revenue Code of
1986, as amended) shall submit, to the extent it may legally do so, to the
Borrower and the Agent on or before the first date on which any payment is due
to it under this Agreement or which any payment is due to it under this
Agreement or any of the other Loan Documents, two duly completed and signed
copies of either (A) Form 1001 of the United States Internal Revenue Service
entitling such Lender to a complete exemption from withholding on all amounts to
be received by such Lender pursuant to this Agreement or any other Loan Document
or (B) Form 4224 of the United States Internal Revenue Service relating to all
amounts to be received by such Lender pursuant to this Agreement or any other
Loan Document. Each such Lender shall, from time to time after submitting either
such form, submit, to the extent it may legally do so, to the Borrower and the
Agent such additional duly completed and signed copies of one or the other such
forms (or such successor forms or other documents as shall be adopted from time
to time by the relevant United States taxing authorities) as may be (A)
requested in writing by the Borrower or the Agent and (B) appropriate under then
current United States law or regulations to avoid or reduce United States
withholding taxes on payments in respect of all amounts to be received by such
Lender pursuant to this Agreement or any other Loan Document. Upon the requests
of the Borrower or the Agent, each Lender that is a United States person shall
submit to the Borrower and the Agent a certificate to the effect that it is such
a United States person.
(ii) If any Lender determines that it is
unable to submit to the Borrower or the Agent any form or
certificate described in the preceding paragraph, or that it is required to
withdraw or cancel any such form or certificate, or that any such form or
certificate previously submitted has otherwise become ineffective or inaccurate,
such Lender shall promptly notify the Borrower and the Agent of such fact.
(iii) The provisions of this Section 4.13 shall
survive the termination of this Agreement and the
payment of the Lender Indebtedness.
. Fees to Agent. Borrower shall pay when due all fees payable
to Agent under the Commitment.
. SECURITY; COLLECTION OF RECEIVABLES AND PROCEEDS OF COLLATERAL.
. Personal Property. As security for the full and timely payment and
performance of all Lender Indebtedness, each Obligor shall grant to Agent, on
behalf of Lenders and the Issuing Bank, a security interest in all of such
Obligor's personal property, whether now owned or hereafter acquired, as
evidenced by those certain security and other agreements executed of even date
by Borrower and Guarantors in favor of Agent. Such security and other
agreements, as they may be amended from time to time, together with any and all
other security and/or other agreements hereafter executed by any Obligor in
favor of Agent as security for any of the Lender Indebtedness, are referred to
herein collectively as the "Security Agreements."
. Interests in Subsidiaries. As further security for the Lender
Indebtedness, Borrower shall pledge and assign to Agent, or cause to be pledged
and assigned to Agent, for the pro rata benefit of the Lenders and the Issuing
Bank (i) 66% of the issued and outstanding shares or other equity interests of
Borrower in each Subsidiary of Borrower which is a "controlled foreign
corporation" under the provisions of Section 957 of the Internal Revenue Code of
1986, as amended, and (ii) 100% of the issued and outstanding shares or other
equity interests of Borrower in each other Subsidiary of Borrower. Such pledge
and assignment shall also cover all dividends, distribution and other proceeds
with respect to such shares or equity interests, and shall be evidenced by such
securities pledge agreements and other documentation as Agent shall require to
evidence, effect or perfect such pledge and assignment (collectively the "Pledge
Agreements").
. Surety. As further security for the Lender Indebtedness, Borrower
shall cause to be executed and delivered to Agent for the pro rata benefit of
Lenders and the Issuing Bank, the absolute, unconditional, unlimited sureties
(collectively, the "Surety Agreements") of the Guarantors, in form and content
satisfactory to Agent. The obligations of each Guarantor under its respective
Surety Agreement shall be secured by the liens and security interests granted by
such Guarantor in its respective Security Agreements and/or Pledge Agreements.
. General. The collateral described above in Sections 5.1, 5.2 and 5.3
is collectively referred to herein as the "Collateral". The above-described
security interests, assignments, liens and guarantees shall not be rendered void
by the fact that no Lender Indebtedness exists as of any particular date, but
shall continue in full force and effect until the Lender Indebtedness has been
repaid, and no Lender has any agreement or commitment outstanding pursuant to
which such Lender may extend credit to or on behalf of Borrower.
. Collection of Receivables; Proceeds of Collateral. Each Obligor will
collect its accounts receivable only in the ordinary course of business. If
requested by Agent on or after the occurrence of an Event of Default, each
Obligor will notify all of its account debtors to forward all accounts
receivable collections owed to such Obligor to a lockbox maintained by Agent,
and will execute such lockbox agreements as may be required by Agent and will
pay to Agent, as applicable, all customary fees in connection with such lockbox
arrangement. Immediately upon receipt, Obligors will forward to Agent, all other
checks, drafts and other monies received by Obligor which are proceeds of the
Collateral, for delivery to the lockbox maintained by such party.
. REPRESENTATIONS AND WARRANTIES. Borrower represents and warrants as
follows:
. Valid Organization, Good Standing and Qualification. Borrower and
each other Obligor is a corporation duly incorporated, validly existing and in
good standing under the laws of its state of incorporation as described on
Schedule 6.1, has full power and authority to execute, deliver and comply with
the Loan Documents, and to carry on its business as it is now being conducted
under the laws of each other jurisdiction in which the character or location of
the properties owned by it or the business transacted by it requires such
licensing or qualification.
. Licenses. Obligors and their employees, servants and agents have all
licenses, registrations, approvals and other authority as may be necessary to
enable them to own and operate their business and perform all services and
business which they have agreed to perform in any state, municipality or other
jurisdiction.
. Ownership Interests. The ownership interests of all stock,
debentures, options, warrants, bonds and other securities (debt and equity) of
each Covered Person and all pledges, proxies, voting trusts, powers of attorney
and other agreements affecting the ownership or voting rights of said interests
is as set forth on Schedule 6.3 attached hereto.
. Subsidiaries. Except as set forth on Schedule 6.4 attached
hereto, neither Borrower nor any other Covered Person
owns all or any material part of the shares of stock or other equity
interests in any Person, directly or indirectly (by any
Subsidiary or otherwise).
. Financial Statements. Borrower has furnished to Agent the audited
consolidated financial statements of Borrower and its Subsidiaries certified by
independent public accountants as of September 30, 1997, and the financial
statements of Borrower and its Subsidiaries as of December 31, 1997, and all
management and comment letters from such accountants in connection therewith.
Such financial statements (together with the related notes and comments), are
correct and complete, fairly present the financial condition and the assets and
liabilities of Borrower and its Subsidiaries at such dates, and have been
prepared in accordance with GAAP (subject to year end adjustments, if
applicable).
. No Material Adverse Change in Financial Condition.
There has been no material adverse change in the financial
condition of Borrower or any of its Subsidiaries since December 31, 1997.
. Pending Litigation or Proceedings. Except as set forth on Schedule
6.7 attached hereto, there are no judgments outstanding or actions, suits or
proceedings pending or, to the best of Borrower's knowledge, threatened against
or affecting any Covered Person, at law or in equity or before or by any
federal, state, municipal or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign.
. Due Authorization; No Legal Restrictions. The execution and delivery
by Obligors of the Loan Documents, the consummation of the transactions
contemplated by the Loan Documents and the fulfillment and compliance with the
respective terms, conditions and provisions of the Loan Documents: (a) have been
duly authorized by all requisite corporate action of each Obligor, (b) will not
conflict with or result in a breach of, or constitute a default (or might, upon
the passage of time or the giving of notice or both, constitute a default)
under, any of the terms, conditions or provisions of any applicable statute,
law, rule, regulation or ordinance or any Obligor's Certificate or Articles of
Incorporation, By-Laws, partnership agreement, operating agreement or other
governing agreements, or any indenture, mortgage, loan or credit agreement or
instrument to which any Obligor is a party or by which any of them may be bound
or affected, or any judgment or order of any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or foreign, and
(c) will not result in the creation or imposition of any lien, charge or
encumbrance of any nature whatsoever upon any of the property or assets of any
Obligor under the terms or provisions of any such agreement or instrument,
except liens in favor of Agent for the pro rata benefit of Lenders and Issuing
Bank.
. Enforceability. The Loan Documents have been duly executed by
Obligors and delivered to Agent and constitute legal,
valid and binding obligations of Obligors, enforceable in accordance with their
terms.
. No Default Under Other Obligations, Orders or Governmental
Regulations. No Obligor is in violation of its Certificate or Articles of
Incorporation, partnership agreement, operating agreement or other governing
agreements, or in default in the performance or observance of any of its
respective obligations, covenants or conditions contained in any indenture or
other agreement creating, evidencing or securing any Indebtedness or pursuant to
which any such Indebtedness is issued and no Obligor is in violation of or in
default under any other agreement or instrument or any judgment, decree, order,
statute, rule or governmental regulation, applicable to it or by which its
properties may be bound or affected.
. Governmental Consents. No consent, approval or
authorization of or designation, declaration or filing with any
governmental authority on the part of any Obligor is required in connection
with the execution, delivery or performance by any
Obligor of the Loan Documents or the consummation of the transactions
contemplated thereby.
. Taxes. All Covered Persons have filed all tax returns which they are
required to file and have paid, or made provision for the payment of, all taxes
which have or may have become due pursuant to such returns or pursuant to any
assessment received by them. Such tax returns are complete and accurate in all
respects. Borrower does not know of any proposed additional assessment or basis
for any assessment of additional taxes.
. Title to Collateral. The Collateral is and will be owned by Obligors
free and clear of all liens and other encumbrances of any kind (including liens
or other encumbrances upon properties acquired or to be acquired under
conditional sales agreements or other title retention devices), excepting only
liens in favor of the Agent for the pro rata benefit of Lenders and Issuing Bank
and those liens and encumbrances permitted under Section 7.9 below. Obligors
will defend the Collateral against any claims of all Persons.
. Addresses. During the past five (5) years, no Obligor has been known
by any names (including trade names) other than those set forth in Schedule 6.14
attached hereto and has been located at any addresses other than those set forth
on Schedule 6.14 attached hereto. The portions of the Collateral which are
tangible property and Obligors' respective books and records pertaining thereto
will at all times be located at the addresses set forth on Schedule 6.14; or
such other location determined by Obligors after prior notice to Agent and
delivery to Agent of any items requested by Agent to maintain perfection and
priority of Agent's security interests in the Collateral and access to Obligors'
books and records. Schedule 6.14 identifies the chief executive office of each
Obligor.
. Current Compliance. Obligors are currently in compliance with
all of the terms and conditions of the Loan Documents.
. Pension Plans. Except as disclosed on Schedule 6.16 hereto, (a) no
Obligor has any obligations with respect to any employee pension benefit plan
("Plan") (as such term is defined in the Employee Retirement Income Security Act
of 1974, as amended ("ERISA")), (b) no events, including, without limitation,
any "Reportable Event" or "Prohibited Transaction" (as those terms are defined
under ERISA), have occurred in connection with any Plan of any Obligor which
might constitute grounds for the termination of any such Plan by the Pension
Benefit Guaranty Corporation ("PBGC") or for the appointment by any United
States District Court of a trustee to administer any such Plan, (c) all of the
Obligors' respective Plans meet with the minimum funding standards of Section
302 of ERISA, and (d) no Obligor has any existing liability to the PBGC. No
Obligor is subject to or bound to make contributions to any "multi-employer
plan" as such term is defined in Section 4001(a)(3) of ERISA.
. Leases and Contracts. Each Covered Person has complied with the
provisions of all material leases, contracts or commitments of any kind (such as
employment agreements, collective bargaining agreements, powers of attorney,
distribution agreements, patent license agreements, contracts for future
purchase or delivery of goods or rendering of services, bonus, pension and
retirement plans or accrued vacation pay, insurance and welfare agreements) to
which it is a party and is not in default thereunder. To Borrower's knowledge,
no other party is in default under any such leases, contracts or other
commitments and no event has occurred which, but for the giving of notice or the
passage of time or both, would constitute an event of default thereunder.
. Intellectual Property. Each Covered Person owns or possesses the
irrevocable right to use all of the patents, trademarks, service marks, trade
names, copyrights, licenses, franchises and permits and rights with respect to
the foregoing necessary to own and operate such Covered Person's properties and
to carry on its business as presently conducted and presently planned to be
conducted without conflict with the rights of others. Schedule 6.18 sets forth
an accurate list and description of each Covered Person's patents, trademarks,
service marks, trade names, copyrights, licenses, franchises and permits and
rights with respect to the foregoing.
. Business Interruptions. Within five (5) years prior to the date
hereof, neither the business, Collateral nor operations of any Covered Person
has been materially and adversely affected in any way by any casualty, strike,
lockout, combination of workers, order of the United States of America, or any
state or local government, or any political subdivision or agency thereof, or
any order or law of any foreign jurisdiction, directed against any Covered
Person. There are no pending or threatened labor disputes, strikes, lockouts or
similar occurrences or grievances against the business being operated by any
Covered Person.
. Year 2000 Warranty. All software developed by a Covered Person and
used by a Covered Person (the "Software") and all updates thereto will, and to
the best knowledge of Borrower, all other software used by any Covered Person
("Other Software") will, prior to December 1, 1999, correctly handle the change
of the century in a standard and compliant manner, including the year 2000 and
beyond as well as the leap year and the absence of leap year, and will operate
accurately in all respects with respect to date related operations. For purposes
of this Agreement, compliance with the foregoing shall mean that the Software
and the Other Software will operate and correctly process such that (i)
calculations using dates execute utilizing a four digit year, (ii) the Software
and Other Software functionality, including, but not limited to, entry, inquiry,
maintenance, update and display (whether on-line, batch or otherwise) shall
support four digit year processing, (iii) interfaces and reports shall support
four digit year processing, (iv) successful transition to the year 2000 using
the correct system date shall occur without human intervention, (v) after
transition to the year 2000, processing with a four digit year shall occur
without human intervention, (vi) all leap years shall be calculated correctly,
(vii) correct results shall be produced in forward and backward date
calculations spanning century boundaries, including the conversion of previous
years currently stored as two digits, and (viii) the Software and Other Software
complies with industry standards regarding the change of the century and year
2000 compliance.
. Accuracy of Representations and Warranties. No representation or
warranty by Borrower contained herein or in any certificate or other document
furnished by Borrower or any other Covered Person pursuant hereto or in
connection herewith fails to contain any statement of material fact necessary to
make such representation or warranty not misleading in light of the
circumstances under which it was made. There is no fact which Borrower knows and
has not disclosed to Agent, which does or may materially and adversely affect
any Covered Person or any of their operations.
. GENERAL COVENANTS. Borrower will, and will cause each Covered Person
to, comply with the following:
. Payment of Principal, Interest and Other Amounts Due.
Borrower will pay when due all Lender Indebtedness and all
other amounts payable by it hereunder.
. Limitation on Sale and Leaseback. No Covered Person will enter into
any arrangement whereby it will sell or transfer any real property or
improvements thereon or other fixed assets owned by it and then or thereafter
rent or lease as lessee such property, improvements or assets or any part
thereof, or other property which such Covered Person shall intend to use for
substantially the same purposes as the property sold or transferred.
. Limitation on Indebtedness. No Covered Person will have at any time
outstanding to any Person other than Lenders, any Indebtedness for borrowed
money or any Indebtedness under Capitalized Leases, or any outstanding Letters
of Credit (except as issued hereunder), except:
() current accounts payable incurred in the ordinary
course of such Covered Person's business, accrued
expenses and other current items arising out of transactions (other than
borrowings) in the ordinary course of its business;
() existing Indebtedness for borrowed money and
Capitalized Lease Obligations described on Schedule 7.3;
() future purchase money Indebtedness and Capitalized Lease
Obligations in an aggregate amount not to exceed $1,000,000.00 outstanding at
any time, provided that Lenders shall have the right of first refusal to provide
such financing in accordance with their respective Pro Rata Percentages on
reasonably competitive terms;
() principal, interest, fees and other sums at any time
owing to CoreStates under the CoreStates Line; and
() the obligations of Subsidiaries of Borrower to
Borrower under Permitted Affiliate Loans.
Any of such existing permitted Indebtedness may not be refinanced or
replaced without the consent of the Agent.
. Investments and Loans. Neither Borrower nor any of its Subsidiaries
will have or make any investments in all or a material portion of the capital
stock or securities of any Person, or any loans, advances or extensions of
credit to any Person, including, without limitation, any additional investments
in or loans to any Subsidiary, except:
() Investments in direct or indirect obligations of, or
obligations unconditionally guaranteed by, the United
States of America and maturing within twelve (12) months from the date of
acquisition;
() Investments in commercial paper of Lenders or commercial
paper rated "Prime-1" by Moody's Investors Services or "A-1" by Standard &
Poor's Corporation, or with an equivalent rating by another rating agency of
nationally recognized standing, maturing within three hundred sixty-five (365)
days from the date of acquisition;
() Certificates of deposit maturing within twelve
(12) months from the date of acquisition issued by
CoreStates;
() Existing investments and loans listed on Schedule 7.4
attached hereto;
------------
() Investments arising directly as a result of a
Permitted Acquisition under Section 7.7;
() Permitted Affiliate Loans; and
() Temporary loans to employees for relocation costs provided
that the total principal amount of such loans outstanding at any time shall not
exceed $300,000.00.
An investment expressly permitted under the terms of this Section 7.4
is referred to herein as a "Permitted Investment."
. Guaranties. No Covered Person will directly or indirectly guarantee,
endorse (other than for collection or deposit in the ordinary course of
business), discount, sell with recourse or for less than the face value or agree
(contingently or otherwise) to purchase or repurchase or otherwise acquire, or
otherwise become directly or indirectly liable for, or agree (contingently or
otherwise) to supply or advance funds (whether by loan, stock purchase, capital
contribution or otherwise) in respect of, any Indebtedness, obligations or
liabilities of any Person.
. Disposition of Assets. No Covered Person will sell, lease, transfer
or otherwise dispose of all, substantially all, or any material portion of its
property or assets, except for sales of inventory in the ordinary course for
fair consideration, provided, however, that a Covered Person may, provided that
no Event of Default exists, sell or dispose of assets if (a) done so in the
ordinary course of its business and the aggregate value of all such assets does
not exceed $250,000.00 in any one fiscal year or (b) the sale is of Borrower's
real estate in South Carolina in connection with the scheduled termination of
Borrower's operations at such property.
. Merger; Consolidation; Business Acquisitions; Subsidiaries. No
Covered Person will merge into or consolidate with any Person, acquire any
material portion of the stock, ownership interests, assets or business of any
Person, permit any Person to merge into it, or form any new Subsidiaries (each
of the foregoing being referred to herein as an "Acquisition Transaction");
provided, however, that a Covered Person may enter into or become a party to an
Acquisition Transaction if each of the following conditions (collectively the
"Acquisition Requirements") are satisfied as determined by Agent:
() no Event of Default exists and no Event of
Default will, upon the delivery of notice or passage of
time, arise, directly or indirectly, as a result of the consummation of the
Acquisition Transaction;
() the Person being merged into or
consolidated with a Covered Person, the new Subsidiary being
formed or acquired or the business or assets being acquired, as applicable, are
in the same line of business of Borrower or a related business line disclosed to
Agent and Lenders on or before the date hereof.
() the total consideration paid or to be paid
by all Covered Persons in connection with any one
Acquisition Transaction does not exceed $5,000,000 and the total consideration
paid or to be paid by all Covered Persons in connection with all such
Acquisition Transactions in any one fiscal year does not exceed $10,000,000;
() Borrower delivers to Agent and Lenders, not
less than 30 days' prior notice of the consummation of
any such Acquisition Transaction and delivery to Agent and Lenders, copies of
all purchase, merger, sale and other documents evidencing the Acquisition
Transaction;
() Borrower delivers to Agent and Lenders
financial statements, in form acceptable to Agent,
projecting that Borrower and its Subsidiaries shall after giving effect to the
Acquisition Transaction, be in compliance with the financial covenants of
Section 8 hereof for each of the four (4) fiscal quarters following consummation
of the Acquisition Transaction, together with such other information regarding
the Acquisition Transaction as Agent or any Lender may reasonably request;
() If the Acquisition Transaction involves a
merger with an Obligor, the Obligor is the surviving
entity;
() If requested by Agent, all assets
acquired by a Covered Person as a result of the Acquisition
Transaction, including, without limitation, the shares of stock or equity
interests in any newly formed Subsidiary, is pledged and assigned to Agent for
the pro rata benefit of the Lenders and the Issuing Bank as security for the
Lender Indebtedness, and such pledge and assignment constitutes a first
perfected security interest (or its equivalent) created under applicable law, is
evidenced by such documents and agreements as Agent shall require, and is
accompanied by such appraisals, searches, legal opinions and other items as
Agent shall require, and all of the foregoing is acceptable to Agent in form and
content.
() Borrower reimburses Agent for all costs,
fees and expenses, including, without limitation,
attorneys' fees, appraisal and search costs and recording fees, incurred by
Agent in connection with the preparation or review of any of the foregoing
items;
() If the Acquisition Transaction involves
the creation of a Subsidiary of Borrower, at Agent's
request, such new Subsidiary guarantees and becomes a surety for all Lender
Indebtedness and all assets of such new Subsidiary are pledged and assigned as
security for all Lender Indebtedness; and
() Any new Subsidiary created as a result of
the Acquisition Transaction shall become subject to all
terms and conditions of this Agreement to the same extent as any other Covered
Person existing on the date hereof.
An Acquisition Transaction which satisfies all of the Acquisition Requirements
is referred to herein as a "Permitted Acquisition". Notwithstanding the
foregoing, (a) an Acquisition Transaction based on the transaction described on
Schedule 7.7A attached hereto shall be deemed a Permitted Acquisition if (x) the
final terms and conditions thereof are approved by the Required Lenders and (y)
all of the Acquisition Requirements other than item (iii) above are satisfied;
and (b) an Acquisition Transaction based on the transaction described on
Schedule 7.7B attached hereto shall be deemed a Permitted Acquisition if (x)
consummated on the terms and conditions described on Schedule 7.7B and (y) all
of the other Acquisition Requirements other than items (ii) and (iii) are
satisfied.
. Taxes; Claims for Labor and Materials. Each Covered Person will pay
or cause to be paid when due all taxes, assessments, governmental charges or
levies imposed upon it or its income, profits, payroll or any property belonging
to it, including without limitation all withholding taxes, and all claims for
labor, materials and supplies which, if unpaid, might become a lien or charge
upon any of its properties or assets, provided, however, that such Covered
Person shall not be required to pay any such tax (other than real estate taxes
which must be paid regardless of challenge), assessment, charge, levy or claim
so long as the validity thereof shall be contested in good faith by appropriate
proceedings promptly initiated and diligently conducted by it, and neither
execution nor foreclosure sale or similar proceedings shall have been commenced
in respect thereof (or such proceedings shall have been stayed pending the
disposition of such contest of validity) and it shall have set aside on its
books, or at the request of Agent, deposited with Agent, adequate reserves with
respect thereto. No Covered Person will file or consent to the filing of, any
consolidated income tax return with any Person other than a Subsidiary thereof.
. Liens. No Covered Person will create, incur or permit to exist any
mortgage, pledge, encumbrance, lien, security interest or charge of any kind
(including liens or charges upon properties acquired or to be acquired under
conditional sales agreements or other title retention devices) on its property
or assets, whether now owned or hereafter acquired, or upon any income, profits
or proceeds therefrom, except:
() Security interests held by Agent for the pro rata
benefit of Lenders and Issuing Bank as contemplated
herein;
() Liens incurred or deposits made in the ordinary course of
business (i) in connection with worker's compensation, unemployment insurance,
social security and other like laws or (ii) to secure the performance of
statutory obligations, not incurred in connection with either (A) the borrowing
of money or (B) the deferred purchase price of goods or inventory;
() Existing liens and security interests listed on
Schedule 7.9 attached hereto;
- ------------
() Purchase money liens or Capitalized Leases, provided
that:
() the property subject to any of the
foregoing is acquired or leased by the Covered Person in the
ordinary course of its business and the lien on any such property is created
contemporaneously with such acquisition;
() purchase money Indebtedness or
Capitalized Lease Obligations so created shall not exceed the
lesser of cost or fair market value as of the time of acquisition or lease of
the property covered thereby;
() the purchase money Indebtedness or
Capitalized Lease Obligations shall only be secured by the
property so acquired or leased; and
() the purchase money Indebtedness or
Capitalized Lease Obligations are permitted by the provisions
of Section 7.3; or
() Liens and security interests granted to Borrower and
assigned to Agent for the pro rata benefit of Lenders and Issuing Bank in
connection with a Permitted Affiliate Loan.
No Covered Person shall enter into any agreement with any other Person
which shall prohibit such Covered Person from granting, creating or suffering to
exist, or otherwise restrict in any way (whether by covenant, by identifying
such event as a default under such agreement or otherwise) the ability of such
Covered Person to grant, create or suffer to exist, any lien, security interest
or other charge or encumbrance upon or with respect to any of its assets in
favor of Agent for the pro rata benefit of Lenders and Issuing Bank.
No Covered Person will apply for or obtain any Letters of Credit for
the payment of or to secure the payment for any inventory or other assets to be
acquired by such Covered Person, except Letters of Credit issued by Issuing Bank
hereunder.
. Existence; Approvals; Qualification; Business Operations; Compliance
with Laws. Each Covered Person will (a) obtain, preserve and keep in full force
and effect its separate corporate existence and all rights, licenses,
registrations and franchises necessary to the proper conduct of its business or
affairs; (b) qualify and remain qualified as a foreign corporation in each
jurisdiction in which the character or location of the properties owned by it or
the business transacted by it requires such qualification; (c) continue to
operate its business as presently operated and, except for related business
lines previously disclosed to Agent and Lenders, will not engage in any new
businesses without the prior written consent of Agent; and (d) comply with the
requirements of all applicable laws and all rules, regulations (including
environmental regulations) and orders of regulatory agencies and authorities
having jurisdiction over it.
. Maintenance of Properties, Intellectual Property. Each Covered Person
will maintain, preserve, protect and keep or cause to be maintained, preserved,
protected and kept its real and personal property used or useful in the conduct
of its business in good working order and condition, reasonable wear and tear
excepted, and will pay and discharge when due the cost of repairs to and
maintenance of the same.
With respect to any and all trademarks, registrations, copyrights,
patents, patent rights and applications for any of the foregoing, each Covered
Person shall maintain and protect the same and shall take and assert any and all
remedies available to it to prevent any other Person from infringing upon or
claiming any interest in any such trademarks, registrations, copyrights,
patents, patent rights or application for any of the foregoing.
Borrower will notify Agent immediately of (a) the filing of (or the
intention of Borrower or any Covered Person to file) any patent or trademark
application, whether domestic or foreign, by any Covered Person or any of their
employees; (b) the grant of any patent or trademark, whether domestic or
foreign, to any Covered Person or any of their employees; or (c) the intent of
any Covered Person to abandon a patent or trademark.
Borrower will, if requested by Agent, (i) execute and deliver, or cause
to be executed and delivered, to Agent for the benefit of Lenders and Issuing
Bank assignments, financing statements, patent mortgages or such other
documents, in form and substance acceptable to Agent, necessary to perfect and
maintain Agent's security interest for the pro rata benefit of Lenders and
Issuing Bank in all existing and future patents, patent applications,
trademarks, trademark applications, and other general intangibles owned by any
Covered Person; (ii) furnish Agent with evidence satisfactory to Agent, in its
reasonable discretion, that all actions necessary to maintain and protect each
trademark and patent owned by a Covered Person or their employees have been
taken in a timely manner; and (iii) execute and deliver, or cause to be executed
and delivered, to Agent an agreement permitting Agent to exercise all rights of
each Covered Person in, to and under any patent or trademark owned by it or any
of their employees.
. Insurance.
() Each Covered Person will carry adequate insurance issued by
an insurer acceptable to Agent, in amounts acceptable to Agent (at least
adequate to comply with any co-insurance provisions) and against all such
liability and hazards as are usually carried by entities engaged in the same or
a similar business similarly situated or as may be required by Agent, and in
addition, will carry business interruption insurance in such amounts as may be
required by Agent. In the case of insurance on any of the Collateral, Obligors
shall carry insurance in the full insurable value thereof and cause Agent to be
named as loss payee (with a lender's loss payable endorsement) for the pro rata
benefit of Lenders and Issuing Bank with respect to all personal property,
mortgagee under a standard mortgage clause with respect to any real property
Collateral and additional insured with respect to all liability insurance, as
its interests may appear with thirty (30) days' notice to be given Agent by the
insurance carrier prior to cancellation or material modification of such
insurance coverage.
() Obligors shall cause to be delivered to Agent the insurance
policies therefor or in the alternative, evidence of insurance and at least
thirty (30) business days prior to the expiration of any such insurance,
additional policies or duplicates thereof or in the alternative, evidence of
insurance evidencing the renewal of such insurance and payment of the premiums
therefor. Obligors shall direct all insurers that in the event of any loss
thereunder or the cancellation of any insurance policy, the insurers shall make
payments for such loss and pay all return or unearned premiums directly to Agent
for the pro rata benefit of Lenders and Issuing Bank and not to Obligors and
Agent jointly.
() In the event of any loss, Obligors will give Agent
immediate notice thereof and Agent may make proof of loss whether the same is
done by any Obligor. Agent is granted a power of attorney by Borrower with full
power of substitution to file any proof of loss in Borrower's or Agent's name,
to endorse Borrower's name on any check, draft or other instrument evidencing
insurance proceeds, and to take any action or sign any document to pursue any
insurance loss claim. Such power being coupled with an interest is irrevocable.
() In the event of any loss, Agent, at its option and except
as provided in Subparagraph (e) below, may (i) retain and apply all or any part
of the insurance proceeds to reduce, in such order and amounts as Agent may
elect, the Lender Indebtedness, or (ii) disburse all or any part of such
insurance proceeds to or for the benefit of Obligors for the purpose of
repairing or replacing Collateral after receiving proof satisfactory to Agent of
such repair or replacement, in either case without waiving or impairing the
Lender Indebtedness or any provision of this Agreement. Any deficiency thereon
shall be paid by Obligors to Agent upon demand. Obligors shall not take out any
insurance without having Agent, for the pro rata benefit of Lenders and Issuing
Bank, named as loss payee and/or additional insured thereon with respect to any
Collateral. Obligors shall bear the full risk of loss from any loss of any
nature whatsoever with respect to the Collateral.
() Notwithstanding the foregoing, in the event that a Covered
Person suffers a casualty loss and desires to use the proceeds of its casualty
loss insurance to repair or replace damaged equipment or inventory which was
Collateral hereunder, Lenders will permit such Covered Person to utilize the
proceeds of such insurance solely to purchase such replacement equipment and
inventory or to repair such equipment, provided that: (i) such Covered Person
confirms to Lenders in writing that it intends to continue its business
operations and has business interruption insurance in effect providing for the
payment of proceeds in amounts acceptable to Agent, in its reasonable
discretion, (ii) such Covered Person submits to Lenders and Agent its business
plan for operations after such casualty loss, which plan must be in form and
content satisfactory to Agent, in its reasonable discretion, (iii) Agent will
hold such insurance proceeds and will disburse such proceeds upon receipt by
Agent of evidence satisfactory to Agent that such proceeds will be used to
purchase equipment and inventory as required above and Agent has obtained, or
will obtain, for the pro rata benefit of Lenders, a first perfected security
interest, in such new equipment and inventory, (iv) disbursement of proceeds
will be in compliance with such reasonable procedures as Agent may require, e.g.
checks payable to the equipment vendor or inventory supplier, (v) no Event of
Default, or event which with the giving of notice or passage of time, or both,
would constitute an Event of Default has occurred, and (vi) the total cost to
replace all damaged or destroyed Collateral does not exceed $5,000,000.00
(individually per occurrence or in the aggregate).
. Inspections; Examinations. Borrower hereby irrevocably authorizes and
directs all accountants and auditors employed by Borrower at any time to exhibit
and deliver to Agent copies of any and all of Borrower's financial statements,
trial balances or other accounting records of any sort in the accountant's or
auditor's possession and copies of all reports submitted to Borrower by such
accountants or auditors, including management letters, "comment" letters and
audit reports, and to disclose to Agent any information they may have concerning
Borrower's financial status and business operations. Borrower further authorizes
all federal, state and municipal authorities to furnish to Agent copies of
reports or examinations relating to Borrower, whether made by Borrower or
otherwise.
The officers of Agent, or such Persons as any of them may designate,
may visit and inspect any of the properties of Borrower, examine (either by
Agent's employees or by independent accountants) any of the Collateral or other
assets of Borrower and any Covered Person, including the books of account of
Borrower, and discuss the affairs, finances and accounts of Borrower, with its
officers and with its independent accountants, at such times as Agent may
desire.
Agent may conduct at any time and from time to time, and Borrower will
fully cooperate with, field examinations of the inventory, accounts receivable
and business affairs of Borrower. Borrower shall reimburse Agent for all of
Agent's out-of-pocket costs and per diem expenses (in accordance with Agent's
customary practices) incurred in connection with any such examinations.
. Default Under Other Indebtedness. No Covered Person will permit any
of its Indebtedness to be in default. If any Indebtedness of any Covered Person
is declared or becomes due and payable before its expressed maturity by reason
of default or otherwise, or to the knowledge of Borrower, the holder of any such
Indebtedness shall have the right (or upon the giving of notice or the passage
of time, or both, shall have the right) to declare such Indebtedness to be so
due and payable, Borrower will immediately give Agent written notice of such
declaration, acceleration or right of declaration.
. Pension Plans. Each Covered Person shall (a) keep in full force and
effect any and all Plans which are presently in existence or may, from time to
time, come into existence under ERISA, unless such Plans can be terminated
without material liability to any Covered Person in connection with such
termination (as distinguished from any continuing funding obligation); (b) make
contributions to all of such Plans in a timely manner and in a sufficient amount
to comply with the requirements of ERISA; (c) comply with all material
requirements of ERISA which relate to such Plans so as to preclude the
occurrence of any Reportable Event, Prohibited Transaction or material
"accumulated funding deficiency" as such term is defined in ERISA; and (d)
notify Agent immediately upon receipt by any Covered Person of any notice of the
institution of any proceeding or other action which may result in the
termination of any Plan and deliver to Agent, promptly after the filing or
receipt thereof, copies of all reports or notices which any Covered Person files
or receives under ERISA with or from the Internal Revenue Service, the PBGC, or
the U.S. Department of Labor.
. Maintenance of Management. Borrower will cause its business to be
continuously managed by its present officers and senior management or such other
Persons (serving in such management positions) as may be reasonably satisfactory
to Agent.
. Ownership Interests; Distributions. Except in connection with a
Permitted Acquisition, no Subsidiary of Borrower will redeem, repurchase or
otherwise make any payment or distribution to acquire any of its outstanding
shares or ownership interests. Neither the Borrower nor any Subsidiary of
Borrower will pay dividends or make any distributions on account of its
outstanding shares or ownership interests to any shareholder or owner other than
Borrower.
. Transactions with Affiliates. No Covered Person shall enter into or
conduct any transaction with any Affiliate except on terms that would be usual
and customary in a similar transaction between Persons not affiliated with each
other and except as disclosed to Agent. Except for Permitted Affiliate Loans and
the termporary loans described in Section 7.4(g), no Covered Person will make
any loans or extensions of credit to any of its Affiliates, shareholders,
directors or officers, except for the existing loans described in Schedule 7.18
attached hereto. Except for sums in the maximum amount of $1,300,000.00 owing by
Borrower under a deferred employee compensation plan, Borrower will cause all of
its Indebtedness at any time owed to its Affiliates, shareholders, directors and
officers to be subordinated in all respects to all present and future Lender
Indebtedness and will not make any payments thereon, except as approved by Agent
in writing.
. Change of Control. No Covered Person shall directly or indirectly
issue, transfer, sell or otherwise dispose of, or part with control of, or
permit the transfer of, any interest therein if, as a result thereof, or
together with any prior action, a Change in Control would occur.
. Name or Address Change. No Covered Person shall change its name or
address except upon thirty (30) days prior written notice to Agent and delivery
to Agent of any items requested by Agent to maintain perfection and priority of
Agent's security interests for the pro rata benefit of Lenders and Issuing Bank
and access to its books and records.
. Notices. Borrower will promptly notify Agent of (a) any action or
proceeding brought against any Covered Person wherein such action or proceeding
could, if determined adversely to any Covered Person, be reasonably expected to
have a Material Adverse Effect (b) the occurrence of any Event of Default, (c)
any fact, condition or event which, with the giving of notice or the passage of
time or both, could become an Event of Default, (d) the failure of any Covered
Person to observe any terms or conditions applicable to it under the Loan
Documents, or (e) the occurrence of any event or circumstance which has, or is
reasonably likely to have, a Material Adverse Effect.
. Additional Documents and Future Actions. Borrower will, at its sole
cost, take such actions and provide Agent from time to time with such
agreements, financing statements and additional instruments, documents or
information as the Agent may in its discretion deem necessary or advisable to
perfect, protect, maintain or enforce the security interests in favor of Agent
for the pro rata benefit of Lenders and Issuing Bank in the Collateral, to
permit Agent to protect or enforce its interest for the pro rata benefit of
Lenders and Issuing Bank in the Collateral, or to carry out the terms of the
Loan Documents. Borrower hereby authorizes and appoints Agent as its
attorney-in-fact, with full power of substitution, to take such actions as Agent
may deem advisable to protect the Collateral and its interests thereon and its
rights hereunder, to execute on Borrower's behalf and file at Borrower's expense
financing statements, and amendments thereto, in those public offices deemed
necessary or appropriate by Agent to establish, maintain and protect a
continuously perfected security interest in the Collateral for the pro rata
benefit of Lenders and Issuing Bank, and to execute on Borrower's behalf such
other documents and notices as Agent may deem advisable to protect the
Collateral and its interests therein and its rights hereunder. Such power being
coupled with an interest is irrevocable. Borrower irrevocably authorizes the
filing of a carbon, photographic or other copy of this Agreement, or of a
financing statement, as a financing statement and agrees that such filing is
sufficient as a financing statement.
. Material Adverse Contracts. No Covered Person will become or be a party
to any contract or agreement which has, or is reasonably likely to have, a
Materially Adverse Effect.
. Restrictions on Use of Proceeds. Borrower will not carry or purchase with
the proceeds of the Revolver any "margin security" within the meaning of
Regulations U, G, T or X of the Board of Governors of the Federal Reserve
System.
. Hedge Agreement. Borrower shall at all times maintain in place a
Hedge Agreement with a lender approved by Agent and, if the lender is a Lender
hereunder, such Lender may receive a security interest in the Collateral which
is pari passu with the lien granted to Agent for the benefit of the Lenders.
Such pari passu lien shall secure the Lender's credit exposure under the Hedge
Agreement as determined in a reasonable and customary manner. The Hedge
Agreement shall be acceptable to Agent in form and content including, without
limitation, as to intercreditor issues.
. FINANCIAL COVENANTS. Borrower will comply with the following, each of
which shall be determined as of the end of each fiscal quarter of Borrower for
the twelve (12) month period then ended:
. Total Indebtedness to Total Capital. Borrower and its Subsidiaries
shall maintain a ratio of Total Indebtedness to Total Capital of not less than
(i) sixty percent (60%) as of March 31, 1998 through December 31, 1998; (ii)
fifty-five percent (55%) as of March 31, 1999 through December 31, 1999, and
(iii) fifty percent (50%) as of March 31, 2000 and thereafter.
. Total Indebtedness to Annualized EBITDA. Borrower and its
Subsidiaries shall maintain a ratio of Total Indebtedness to Annualized EBITDA
of not more than 3.50 to 1.0. For purposes of the foregoing, Annualized EBITDA
means Borrower's EBITDA adjusted to include newly acquired Subsidiaries or
operations if Borrower has delivered to Agent and Lenders audited financial
statements for such new Subsidiary or operation, together with projected
statements for such Subsidiary or operation for the four fiscal quarters
following consummation of the acquisition, all in form acceptable to Agent.
. Fixed Charge Coverage Ratio. Borrower and its Subsidiaries shall maintain
a Fixed Charge Coverage Ratio of not less than 1.50 to 1.0.
. ACCOUNTING RECORDS, REPORTS AND FINANCIAL STATEMENTS. Covered Persons will
maintain books of record and account in which full, correct and current entries
in accordance with GAAP will be made of all of their dealings, business and
affairs, and Covered Persons will deliver to Agent and Lenders the following:
. Annual Statements. As soon as available and in any event within ninety
(90) days after the end of each fiscal year ------------------ of Borrower:
() the audited, consolidated income and retained earnings statements of
Borrower and its Subsidiaries for such fiscal year,
() the audited, consolidated balance sheet of Borrower and its Subsidiaries
as at the end of such fiscal year, and
() the audited, consolidated statement of cash flow of Borrower and its
Subsidiaries for such fiscal year,
setting forth in comparative form the corresponding figures as at the end of the
previous fiscal year, all in reasonable detail, including all supporting
schedules and comments, together with a copy of the Borrower's Form 10-K filed
with the Securities and Exchange Commission for such year. The foregoing
statements and balance sheets shall be prepared in accordance with GAAP and
shall be audited by independent certified public accountants of recognized
standing acceptable to Agent in the reasonable exercise of its discretion with
respect to which such accountants shall deliver their unqualified opinion.
. Projections and Cash Flow. As soon as available and in any event
within sixty (60) days prior to the end of each fiscal year of Borrower,
projections and cash flows on a quarter-by-quarter basis for the next succeeding
twelve (12) months for Borrower and its Subsidiaries, prepared by the chief
financial officer of Borrower. Borrower has furnished to Lenders initial
projections dated as of the date hereof and attached hereto as Schedule 9.2
containing the information required by this Section 9.2. Borrower represents and
covenants that (a) the initial projections attached hereto have been and all
projections required by this Section 9.2 shall be prepared by the chief
financial officer of Borrower and represent, and in the future shall represent,
the best available good faith estimate of Borrower regarding the course of the
business of Borrower and its Subsidiaries for the periods covered thereby; (b)
the assumptions set forth in the initial projections are and the assumptions set
forth in the future projections delivered hereafter shall be reasonable and
realistic based on then current economic conditions; (c) Borrower knows of no
reason why Borrower and its Subsidiaries should not be able to achieve the
performance levels set forth in the initial projections and Borrower and its
Subsidiaries shall have no knowledge at the time of delivery of future
projections of any reason why Borrower and its Subsidiaries shall not be able to
meet the performance levels set forth in said projections; and (d) Borrower and
its Subsidiaries have sufficient capital as may be required for their ongoing
businesses and to pay their existing and anticipated debts as they mature.
. Quarterly Statements. As soon as available and in any event within
forty-five (45) days after the end of each first, second
and third fiscal quarter of Borrower:
() the consolidated income and retained earnings statements of Borrower and
its Subsidiaries for such quarter;
() the consolidated balance sheet of Borrower and its Subsidiaries as of
the end of such quarter; and
() the consolidated statement of cash flow of Borrower and its Subsidiaries
for such quarter,
setting forth in corporative form the corresponding figures as at the end of the
corresponding quarter of the previous fiscal year, all in reasonable detail,
subject to year-end adjustments, and certified by the chief financial officer of
Borrower to be accurate and to have been prepared in accordance with GAAP,
together with a copy of Borrower's Form 10-Q filed with the Securities and
Exchange Commission for such quarter.
. Audit Reports. Promptly upon receipt thereof, one copy of each other
report submitted to Borrower or any of its Subsidiaries by independent
accountants, including management letters, "comment" letters, in connection with
any annual, interim or special audit report made by them of the books of
Borrower or any of its Subsidiaries.
. Reports to Governmental Agencies and Other Creditors. With reasonable
promptness: (i) copies of all such financial statements and reports which
Borrower or any of its Subsidiaries sends to its stockholders, and (ii) copies
of all reports on Form 8-K which the Borrower may make to, or file with, the
Securities and Exchange Commission, and (iii) any report or statement delivered
by Borrower or any of its Subsidiaries to any supplier or other creditor in
connection with any payment restructuring.
. Requested Information. To Agent, with reasonable promptness, all such
other data and information, including tax returns, in respect of the condition,
operation and affairs of any Covered Person as Agent may reasonably request from
time to time.
. Compliance Certificates. Within the periods provided in Sections 9.1
and 9.3 above, a certificate of the chief financial officer of Borrower; (a)
stating that Borrower and its Subsidiaries have observed, performed and complied
with each and every undertaking contained herein, (b) setting forth the
information and computations (in sufficient detail) required in order to
establish whether Borrower and its Subsidiaries were operating in compliance
with the financial covenants in Section 8 of this Agreement, and (c) certifying
that as of the date of such certification, there does not exist any Event of
Default or any occurrence or state of affairs which with the giving of notice,
passage of time or both would constitute an Event of Default. Such certificate
will be in the form of Exhibit "C" attached hereto.
. Accountant's Certificate. Within the period provided in Section 9.1,
a report of the independent public accountants who render an opinion with
respect to the financial statements referred to therein, stating that they have
reviewed the terms of this Agreement and that in making the examinations
necessary to their certification mentioned in Section 9.1, they have reviewed
the accounts and condition of Borrower and its Subsidiaries during the
accounting period covered by their certificate and that such review did not
disclose the existence of any condition or event which constitutes an Event of
Default or would, upon giving notice or passage of time or both, constitute an
Event of Default (or that such conditions or events existed, describing them).
. ENVIRONMENTAL REPRESENTATIONS AND COVENANTS.
. Representations. Borrower represents to Lenders as follows: (a) to
Borrower's knowledge, the Environmental Affiliates are in compliance with all
Environmental Requirements and Borrower has no knowledge of any circumstances
which may prevent or interfere with such compliance in the future; (b) to
Borrower's knowledge, the Environmental Affiliates have all licenses, permits,
approvals and authorizations required under applicable Environmental
Requirements; (c) there are no pending or threatened claims against any of the
Environmental Affiliates or any of their assets related to the failure to comply
with any Environmental Requirements, or any facts or circumstances which could
give rise to such a claim; (d) no facility or property now or previously owned,
operated or leased by any Environmental Affiliate is an Environmental Cleanup
Site; (e) no Environmental Affiliate has treated, stored, transported, handled
or disposed of Special Materials at or adjacent to any Environmental Cleanup
Site; (f) there are no liens or claims for cost reimbursement outstanding or
threatened against any Environmental Affiliate or any of their assets, or any
facts or circumstances which could give rise to such a lien or claim; and (g)
there are no facts or circumstances which, under the provisions of any
Environmental Requirements, could restrict the use, occupancy or transferability
of any of the Collateral or any of the facilities owned, leased or operated by
any Environmental Affiliate.
. Real Property. Borrower represents and warrants to Lenders that, to
Borrower's knowledge, there are no Special Materials presently located on or
near any real property owned, leased or operated by any Environmental Affiliate
(collectively, "Real Property") except for Special Materials which are and have
at all times been treated, stored, transported, handled and disposed of in
compliance with all Environmental Requirements. Borrower represents to Lenders
that the Real Property is not now being used nor, to the best of its knowledge,
has it ever been used in the past for activities involving Special Materials,
including but not limited to the use, generation, collection, storage,
treatment, or disposal of any Special Materials except for Special Materials
which are and have at all times been treated, stored, transported, handled and
disposed of in compliance with all Environmental Requirements. Without limiting
the generality of the foregoing, the Real Property is not being used nor, to the
best of Borrower's knowledge, has it ever been used in the past for a landfill,
surface impoundment or other area for the treatment, storage or disposal of
solid waste (including solid waste such as sludge).
. Covenant Regarding Compliance. Borrower shall take or cause all
Environmental Affiliates to take, at Borrower's and such Environmental
Affiliate's sole expense, such actions as may be necessary to comply with all
Environmental Requirements, as hereinafter defined. If any Environmental
Affiliate shall fail to take such action, Agent may make advances or payments
towards performance or satisfaction of the same but shall be under no obligation
to do so. All sums so advanced or paid, including all sums advanced or paid by
Agent in connection with any judicial or administrative investigation or
proceeding relating thereto, including, without limitation, attorney's fees,
fines, or other penalty payments, shall be at once repayable by Borrower and all
sums so advanced or paid shall become a part of the Lender Indebtedness.
The Environmental Affiliates will maintain all licenses, permits,
approvals and authorizations required under applicable Environmental
Requirements. In connection with off-site treatment, storage, handling,
transportation or disposal of Special Materials, the Environmental Affiliates
will conduct such activities only at facilities and with carriers who operate in
compliance with all Environmental Requirements and will obtain certificates of
compliance or disposal from all contractors retained in connection with such
activities.
. Notices. In the event Borrower becomes aware of any past, present or
future facts or circumstances which have given rise or could give rise to a
claim against any Environmental Affiliate related to a failure to comply with
any Environmental Requirements, Borrower will promptly give Agent notice
thereof, together with a written statement of an officer of Borrower setting
forth the details thereof and the action with respect thereto taken or proposed
to be taken by the Environmental Affiliates.
. Indemnity. Borrower agrees to indemnify, defend and hold harmless
Agent, Lenders and their respective parents, subsidiaries, successors and
assigns, and any officer, director, shareholder, employee, Affiliate or agent of
Agent and/or any Lender, for all loss, liability, damage, cost and expenses,
including, without limitation, attorney's fees and disbursements (including the
reasonable allocated cost of in-house counsel and staff) arising from or related
to (a) the release of any Special Materials at any facility at any time owned,
leased or operated by Borrower or any of its Subsidiaries, (b) the release of
any Special Materials treated, stored, transported, handled, generated or
disposed of by or on behalf of Borrower or any of its Subsidiaries at any third
party owned site, (c) any claim against any Environmental Affiliate that they
have failed to comply with all Environmental Requirements, and (d) the breach by
Borrower of any representation or covenant in this Section 10.
. Survival. The representations and covenants of Borrower contained in this
Section 10, including without limitation the indemnification obligation of
Borrower, shall survive the occurrence of any event whatsoever, including the
payment of the Lender Indebtedness or any investigation by or knowledge of Agent
or any Lender.
. CONDITIONS OF CLOSING. The obligation of Lenders to make available the
Revolver is subject to the performance by Obligors of all of their agreements to
be performed hereunder and to the following further conditions:
. Loan Documents. Obligors and all other required Persons will have
executed and delivered the Loan Documents, including, without limitation, the
original stock certificates evidencing the securities pledged to Agent under the
Loan Documents and stock powers therefor signed in blank with guaranteed
signatures.
. Representations and Warranties. All representations and warranties of
Obligors set forth in the Loan Documents will be true at and as of the date
hereof.
. No Default. No condition or event shall exist or have occurred which
would constitute an Event of Default (or would, upon the giving of notice or the
passage of time or both, constitute an Event of Default).
. Proceedings and Documents. All proceedings taken by Obligors in
connection with the transactions contemplated by this Agreement and all
documents incident to such transactions shall be satisfactory in form and
substance to Agent and Agent shall have received all documents or other evidence
which it reasonably may request in connection with such proceedings and
transactions. Each Obligor shall have delivered to Agent a certificate, in form
and substance satisfactory to Agent dated the date hereof and signed on behalf
of such Obligor by an officer or authorized representative of such Obligor,
certifying (a) true copies of the Articles of Incorporation and bylaws,
partnership agreement, operating agreement or other governing document with
respect to such Obligor in effect on such date, (b) true copies of all
authorizing actions taken by such party relative to the Loan Documents, and (c)
the names, true signatures and incumbency of the officers or authorized
representative of such Obligor authorized to execute and deliver this Agreement
and the other Loan Documents. Agent may conclusively rely on such certificate
unless and until a later certificate revising the prior certificate has been
received by Agent.
. Landlord's or Warehouseman's Release and Waiver Agreements. Agent
shall have received a landlord's or warehouseman's release and waiver agreement,
satisfactory in form and substance to Agent, from each landlord and warehouseman
for each location leased by Borrower or at which any Collateral is located.
. Delivery of Other Documents. The following documents shall have been
delivered to Agent by or on behalf of Obligors:
() Good Standing and Tax Lien Certificates. A good standing
certificate of the Department of State of each jurisdiction where an Obligor is
formed or incorporated, certifying to the good standing of such Obligor, good
standing/foreign qualification certificates from all other jurisdictions in
which an Obligor is required to be qualified to do business, and tax lien
certificates for each Obligor from each jurisdiction in which such Obligor is
required to be qualified to do business.
() Authorization Documents. Evidence of authorization of each Obligor's
execution and full performance of this Agreement, the Loan Documents and all
other documents and actions required hereunder.
() Insurance. Evidence of the insurance coverage required under Section
7.12.
() Opinion of Counsel. An opinion or opinions of counsel (for the benefit
of Agent and Lenders) for Borrower and its Subsidiaries, in form and content
satisfactory to Agent. Without limiting the foregoing, Agent shall receive an
opinion of counsel for Borrower as to the valid existence and formation of each
of Borrower's Subsidiaries under the laws of the jurisdiction in which such
Subsidiary was formed/incorporated and as to the enforceability of the Pledge
Agreement.
() Lien Search. Copies of record searches (including UCC searches and
judgments, suits, tax and other lien searches) acceptable to Agent.
() No Material Adverse Change. Evidence satisfactory to the Agent that no
material adverse change has occurred with respect to the Borrower and its
Subsidiaries since December 31, 1997.
() Other Documents. Such other documents as may be required to be submitted
to Agent by the terms hereof or of any Loan Document.
() Projections. Internally prepared financial statements on a projected
quarterly basis for Borrower and its Subsidiaries on a consolidated and
consolidating basis for the thirty-six (36) months following the date hereof, in
form and content satisfactory to Agent.
() Sources and Uses Schedule. A sources and uses schedule prepared by the
Chief Financial Officer of Borrower, in form acceptable to Lenders.
() Hedge Agreement. Evidence acceptable to Agent that a Hedge Agreement
exists as required under Section 7.25 hereof.
. CERTAIN CONDITIONS TO SUBSEQUENT ADVANCES. Subsequent Advances, Letters of
Credit and Swingline Loans shall be conditioned upon the following conditions
and each request by Borrower for an Advance or a Letter of Credit Advance or a
Swingline Loan shall constitute a representation by Borrower to Agent and
Lenders that each condition has been met or satisfied:
. Representations and Warranties. All representations and warranties of
Obligors contained herein or in the Loan Documents shall be true at and as of
the date of such advance as if made on such date, and each request for an
advance shall constitute reaffirmation by Obligors that such representations and
warranties are then true.
. No Default. No condition or event shall exist or have occurred at or as
of the date of such advance which would constitute an Event of Default hereunder
(or would, upon the giving of notice or the passage of time or both, constitute
such an Event of Default).
. Other Requirements. Agent shall have received all certificates,
authorizations, affidavits, schedules and other documents which are provided for
hereunder or under the Loan Documents, or which Agent may reasonably request.
. DEFAULT AND REMEDIES.
. Events of Default. The occurrence of any one or more of the following
events shall constitute an Event or Events of Default hereunder:
() The failure of Borrower to pay any amount of principal or
interest on any Revolver Note or Swingline Note, or any fee or other sums
payable hereunder, or any other Lender Indebtedness on the date on which such
payment is due, whether on demand, at the stated maturity or due date thereof,
or by reason of any requirement for the prepayment thereof, by acceleration or
otherwise;
() The failure of any Covered Person to duly perform or
observe any obligation, covenant or agreement applicable to it contained herein
or in any other Loan Document and such failure is not cured within twenty (20)
calendar days of delivery by Agent to Borrower of written notice of such
failure; provided, however, that such notice and opportunity to cure is
expressly inapplicable to, and an Event of Default shall arise immediately upon,
the occurrence of any of the following: (i) any failure which is incapable of
cure, (ii) any failure to comply with any of the covenants of Section 8, (iii)
any failure which was willfully caused by any Covered Person, and (iv) any event
or circumstance which constitutes an Event of Default under some other
subparagraph of this Section 13.1;
() The failure of any Obligor to pay any Indebtedness for
borrowed money due to any third Person or the existence of any other event of
default under any loan, security agreement, mortgage or other agreement
pertaining thereto binding any Obligor after the expiration of any notice and/or
grace periods permitted in such documents;
() The failure of any Obligor to pay or perform any other
obligation to any Lender under any other agreement or note or otherwise arising,
whether or not related to this Agreement, after the expiration of any notice
and/or grace periods permitted in such documents;
() The adjudication of any Covered Person as a bankrupt or
insolvent, or the entry of an Order for Relief against any Covered Person or the
entry of an order appointing a receiver or trustee for any Covered Person of any
of its property or approving a petition seeking reorganization or other similar
relief under the bankruptcy or other similar laws of the United States or any
state or any other competent jurisdiction or any foreign nation or political
subdivision thereof, if applicable;
() A proceeding under any bankruptcy, reorganization,
arrangement of debt, insolvency, readjustment of debt or receivership law is
filed by or, unless dismissed within 60 days of filing, against, any Covered
Person or any Covered Person makes an assignment for the benefit of creditors,
or any Covered Person takes any action to authorize any of the foregoing;
() The suspension of the operation of any Covered Person's
present business, or any Covered Person becoming unable to meet its debts as
they mature, or the admission in writing by any Covered Person to such effect,
or any Covered Person calling any meeting of all or any material portion of its
creditors for the purpose of debt restructure;
() All or any part of the Collateral or the assets of any
Covered Person are attached, seized, subjected to a writ or distress warrant, or
levied upon, or come within the possession or control of any receiver, trustee,
custodian or assignee for the benefit of creditors;
() The entry of a final judgment for the payment of money in
excess of $25,000.00 against any Obligor which, within thirty (30) days after
such entry, shall not have been discharged or execution thereof stayed pending
appeal or shall not have been discharged within five (5) days after the
expiration of any such stay;
() Any representation or warranty of any Obligor in any of the
Loan Documents is discovered to be untrue in any material respect or any
statement, certificate or data furnished by any Obligor pursuant hereto is
discovered to be untrue in any material respect as of the date as of which the
facts therein set forth are stated or certified;
() Any Covered Person voluntarily or involuntarily
dissolves or is dissolved, terminates or is terminated;
() Any Covered Person is enjoined, restrained, or
in any way prevented by the order of any court or any
administrative or regulatory agency, the effect of
which order restricts such Covered Person from
conducting all or any material part
of its business;
() A breach by any Covered Person occurs under any material
agreement, document or instrument, whether heretofore, now or hereafter existing
between any Covered Person and any other Person after the expiration of any
notice and/or grace periods contained therein.
() A change occurs in any Covered Person's operations,
management or financial condition or in the value of
the Collateral which will, or is reasonably likely to,
have a Material Adverse Effect;
() Any material uninsured damage to, or loss, theft, or
destruction of, any of the Collateral occurs;
() Any strike, lockout, labor dispute, embargo, condemnation,
act of God or public enemy, or other casualty loss occurs resulting in the
cessation or substantial curtailment of production or other revenue producing
activities at any facility of any Obligor for more than thirty (30) consecutive
days, which is not covered by business interruption insurance in amounts
approved by Agent;
() The loss, suspension, revocation or failure to renew any
license or permit now held or hereafter acquired by any Covered Person, which
loss, suspension, revocation or failure to renew will, or is reasonably likely
to, have a Material Adverse Effect;
() The occurrence of a Change in Control not approved by
the Required Lenders;
() Unless expressly permitted under the terms of this
Agreement or approved in advance by the Required Lenders, Borrower fails to own,
either directly or through another Subsidiary, one hundred percent (100%) of all
issued and outstanding shares of capital stock or of all equity interests, in
any of its Subsidiaries;
() The indictment or threatened indictment of any Covered
Person under any criminal statute, or commencement or threatened commencement of
criminal or civil proceedings against any Covered Person, pursuant to which
statute or proceedings the penalties or remedies sought or available include
forfeiture of any of the property of such Covered Person;
() Any breach by any Obligor or any creditor of its
obligations under any subordination agreement now
or hereafter executed in favor of any Lender;
() The validity or enforceability of this Agreement,
or any of the Loan Documents, is contested by any
Obligor or any Obligor denies that it has any or any
further liability or obligation hereunder or thereunder
; or
() The occurrence of an Event of Default under any of
the other Loan Documents.
. Remedies. At the option of the Agent and subject to the
requirements of Article 14 below, upon the occurrence of an
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Event of Default, or at any time thereafter:
() The entire unpaid principal of the Revolver, all other
Lender Indebtedness, or any part thereof, all interest accrued thereon, all fees
due hereunder and all other obligations of Obligors to Lenders hereunder or
under any other agreement, note or otherwise arising will become immediately due
and payable without any further demand or notice;
() The Revolver will immediately terminate and Borrower will receive no
further extensions of credit thereunder;
() Agent may increase the interest rate on the Revolver to the applicable
Default Rate set forth herein, without notice;
() Agent may enter the premises occupied by Borrower or any other Person
and take possession of the Collateral and any records relating thereto; and/or
() Agent may exercise each and every right and remedy granted
to it under the Loan Documents, under the Uniform Commercial Code and under any
other applicable law or at equity.
If an Event of Default occurs under Section 13.1(e) or (f), all Lender
Indebtedness shall become immediately due and payable.
. Set-Off. Without limiting the rights of Agent or Lenders under
applicable law, Agent and each Lender has and may exercise a right of set-off, a
lien against and a security interest in all property of Obligors now or at any
time in Agent's or any Lender's possession in any capacity whatsoever, including
but not limited to any balance of any deposit, trust or agency account (if
permitted by applicable law), or any other bank account with Agent or any
Lender, as security for all Lender Indebtedness. At any time and from time to
time following the occurrence of an Event of Default, or an event which with the
giving of notice or passage of time or both would constitute an Event of
Default, Agent and each Lender may without notice or demand, set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by Agent or any Lender
to or for the credit of any Obligor against any or all of the Lender
Indebtedness.
If any bank account of an Obligor with any Lender is attached or
otherwise liened or levied upon by any third party, such Lender need not await
the running of any applicable grace period hereunder, but such Lender shall have
and be deemed to have the immediate right of set-off and may apply the funds or
amount thus set-off against such Obligor's respective obligations to the
Lenders.
. Delay or Omission Not Waiver. Neither the failure nor any delay on
the part of Agent or any Lender to exercise any right, remedy, power or
privilege under the Loan Documents upon the occurrence of any Event of Default
or otherwise shall operate as a waiver thereof or impair any such right, remedy,
power or privilege. No waiver of any Event of Default shall affect any later
Event of Default or shall impair any rights of Agent or any Lender. No single,
partial or full exercise of any rights, remedies, powers and privileges by the
Agent or any Lender shall preclude further or other exercise thereof. No course
of dealing between Agent or any Lender and Obligors shall operate as or be
deemed to constitute a waiver of Agent's or any Lender's rights under the Loan
Documents or affect the duties or obligations of Obligor.
. Remedies Cumulative; Consents. The rights, remedies, powers and
privileges provided for herein shall not be deemed exclusive, but shall be
cumulative and shall be in addition to all other rights, remedies, powers and
privileges in Agent's and Lender's favor at law or in equity. Whenever the
Agent's or any Lender's consent or approval is required or permitted, such
consent or approval shall be at the sole and absolute discretion of Agent and
such Lenders.
. Certain Fees, Costs, Expenses and Expenditures. Borrower agrees to pay on
demand all costs and expenses of Agent and/or Lenders, as applicable, including
without limitation:
() all costs and expenses in connection with the preparation,
review, negotiation, execution, delivery and administration of the Loan
Documents, and the other documents to be delivered in connection therewith, or
any amendments, extensions and increases to any of the foregoing (including,
without limitation, reasonable attorney's fees and expenses, and the cost of
appraisals and reappraisals of Collateral), and the cost of periodic lien
searches and tax clearance certificates, as Agent deems advisable; provided that
as long as no Event of Default has occurred, Agent shall not obtain, at
Borrower's cost, such lien searches and tax certificates more frequently than
once in each fiscal year of Borrower;
() all losses, costs and expenses incurred by Agent and/or
Lenders in connection with the enforcement, protection and preservation of the
Lenders' rights or remedies under the Loan Documents, or any other agreement
relating to any Lender Indebtedness, or in connection with legal advice relating
to the rights or responsibilities of Lenders (including without limitation court
costs, attorney's fees and expenses of accountants and appraisers); and
() any and all stamp and other taxes payable or determined to
be payable by Agent and/or Lenders in connection with the execution and delivery
of the Loan Documents, and all liabilities to which Agent or any Lender may
become subject as the result of delay in paying or omission to pay such taxes.
In the event Obligor shall fail to pay taxes, insurance, assessments,
costs or expenses which they are required to pay hereunder, or under the other
Loan Documents, or fail to keep the Collateral free from security interests or
lien (except as expressly permitted herein), or fail to maintain or repair the
Collateral as required hereby or under the other Loan Documents, or otherwise
breach any obligations under the Loan Documents, Agent in its discretion, may
make expenditures for such purposes and the amount so expended (including
attorney's fees and expenses, filing fees and other charges) shall be payable by
Borrower on demand and shall constitute part of the Lender Indebtedness.
With respect to any amount required to be paid by Borrower under this
Section 13.6, in the event Borrower fails to pay such amount on demand, Borrower
shall also pay to Agent for the pro rata benefit of Lenders interest thereon at
the Default Rate set forth herein for the Revolver. Borrower's obligations under
this Section 13.6 shall survive termination of this Agreement.
. Time is of the Essence. Time is of the essence in Obligors' performance
of their obligations under the Loan Documents.
. Acknowledgment of Confession of Judgment Provisions. BORROWER
ACKNOWLEDGES AND AGREES THAT THE NOTES AND THE LOAN DOCUMENTS CONTAIN PROVISIONS
WHEREBY AGENT MAY ENTER JUDGMENT BY CONFESSION AGAINST BORROWER. BEING FULLY
AWARE OF ITS RIGHTS TO PRIOR NOTICE AND HEARING ON THE QUESTION OF THE VALIDITY
OF ANY CLAIMS THAT MAY BE ASSERTED AGAINST IT BY AGENT AND LENDERS UNDER THE
NOTES AND LOAN DOCUMENTS, BEFORE JUDGMENT CAN BE ENTERED, BORROWER HEREBY WAIVES
THESE RIGHTS AND AGREES AND CONSENTS TO AGENT ENTERING JUDGMENT AGAINST BORROWER
AND GUARANTORS BY CONFESSION. ANY PROVISION IN A CONFESSION OF JUDGMENT IN ANY
OF THE LOAN DOCUMENTS FOR AN ATTORNEY'S COLLECTION COMMISSION SHALL IN NO WAY
LIMIT BORROWER'S LIABILITY TO REIMBURSE AGENT AND LENDERS FOR ALL LEGAL FEES
ACTUALLY INCURRED BY AGENT AND LENDERS, EVEN IF SUCH FEES ARE IN EXCESS OF THE
ATTORNEY'S COLLECTION COMMISSION PROVIDED FOR IN SUCH CONFESSION OF JUDGMENT.
. AGENT.
. Appointment of Agent. Each Lender hereby designates Agent to act as
Agent for such Lender under this Agreement and the Loan Documents. Each Lender
hereby irrevocably authorizes, and each holder of a Revolver Note by the
acceptance of such Revolver Note shall be deemed irrevocably to authorize, Agent
to take such action on its behalf under the provisions of this Agreement, the
Loan Documents and any other instruments and agreements referred to herein or
therein and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of Agent by the terms
hereof and thereof and such other powers as are reasonably incidental thereto.
Except as expressly set forth in this Agreement to the contrary, Borrower is
authorized by Lenders to deal solely with Agent in all matters which affect
Lenders under this Agreement and the other Loan Documents.
. Holding of Collateral and Collections. Except as otherwise permitted
under the Loan Agreement, Agent shall hold all payments of principal and
interest, fees, costs, expenses and collections received pursuant to the Credit
Facilities or the Loan Documents prior to the occurrence of an Event of Default,
for the pro rata benefit of the Lenders in accordance with their respective Pro
Rata Percentages. Agent shall hold all Collateral for the pro rata benefit of
the Lenders in accordance with their respective Pro Rata Percentages and for the
benefit of CoreStates as security for the CoreStates Line. To the extent any
other Lender from time to time holds any Collateral, it shall hold such
Collateral for the pro rata benefit of all Lenders in accordance with their
respective Pro Rata Percentages and for the benefit of CoreStates as security
for the CoreStates Line.
. Fees. All fees payable under this Agreement and the Loan Documents shall
be for the pro rata benefit of the Lenders in accordance with their respective
Pro Rata Percentages, except as follows:
() All confirmation fees, negotiation fees and other charges
(except for issuance and renewal fees) payable by Borrower in connection with
Letters of Credit issued under the Loan Agreement shall be retained in full by
the Issuing Bank.
() All structuring, arranging and agent fees described as
payable to Agent under the Commitment, and all fees payable in connection with
the Swingline Loan, shall be retained by Agent.
() Interest and all fees payable in connection with the
CoreStates Line shall be retained by CoreStates.
. Collections and Disbursements.
() The Agent will have the right to collect and receive all
payments on the Credit Facilities, and to collect and receive all reimbursements
for draws made under the Letters of Credit, together with all fees, charges or
other amounts due to Agent and/or Lenders under the Loan Agreement and the other
Loan Documents. If Agent should for any reason receive less than the full amount
of the interest or other compensation due under the Loan Documents, each
Lender's share of such interest or compensation shall decrease in proportion to
each Lender's Pro Rata Percentage.
() If any such payment received by the Agent on the Credit
Facilities rescinded, determined to be unenforceable or invalid or is otherwise
required to be returned for any reason at any time, whether before or after
termination of this Agreement and the other Loan Documents, each Lender will,
upon written notice from the Agent, promptly pay over to the Agent its Pro Rata
Percentage of the amount rescinded, held unenforceable or invalid or required to
be returned, together with interest and other fees thereon if also required to
be rescinded or returned. If Agent does not receive such sums from any Lender
within one (1) Business Day after receipt by such Lender of the written notice
from Agent referred to above, Agent shall also be entitled to receive from such
Lender interest on such amount at a per annum rate equal to the Federal Funds
Effective Rate during the period commencing on the date of receipt by such
Lender of such written notice from Agent and ending on (but excluding) the date
Agent recovers such amount.
() All payments by the Agent and the Lenders to each other
hereunder or under the Loan Documents shall be in immediately available funds.
The Agent will at all times maintain proper books of account and records
reflecting the interest of each Lender in the Lender Indebtedness, in a manner
customary to the Agent's keeping of such records, which books and records shall
be available for inspection by each Lender at reasonable times during normal
business hours and after reasonable prior notice, at such Lender's sole expense.
Agent's records shall be deemed correct absent manifest error. Agent will hold
all Loan Documents in its possession in a manner customary to the Agent's
keeping of such type of documents.
() The proceeds from the sale or disposition of any Collateral
and all other payments received by Agent after the occurrence of an Event of
Default shall be applied (i) first, to reasonable expenses incurred by Agent as
provided in Section 14.16 below, (ii) second, to all sums due Issuing Bank as
set forth in Section 2.4 above, (iii) third, to fees payable to Agent, (iv)
fourth, to principal and interest on the Swingline Loans, (v) fifth, to accrued
but unpaid fees on the Credit Facilities and the CoreStates Line in accordance
with each Lender's Post Default Pro Rata Percentage (to the extent Lenders share
in such fees), (vi) sixth, to accrued but unpaid interest on the Lender
Indebtedness (including the CoreStates Line) in accordance with each Lender's
Post Default Pro Rata Percentage, (vii) seventh, to the principal balance of the
Lender Indebtedness (including the CoreStates Line) in accordance with each
Lender's Post Default Pro Rata Percentage, and (viii) eighth, to expenses, if
any, incurred by Lenders (to the extent subject to reimbursement by Borrower) in
accordance with their Post Default Pro Rata Percentages.
() To the extent necessary for each Lender's actual percentage
of all outstanding Loans to equal its applicable Post Default Pro Rata
Percentage, the Lender which obtains a greater share of any payments (by set-off
or otherwise) than its applicable Post Default Pro Rata Percentage shall acquire
a participation in the applicable outstanding balances of the other Lenders as
determined by Agent in order that such Lender's percentage of the Outstanding
Credit and the CoreStates Lines is equal to its Post Default Pro Rata
Percentage.
. Delegation of Duties; Discretion; Instructions. Agent may perform any
of its duties hereunder or under the Loan Documents by or through its agents or
employees. As to any matters not expressly provided for by the Loan Documents or
this Agreement, the Agent may exercise its discretion to take or refrain from
taking any action. If Agent is required to act or to refrain from acting under
the terms of this Agreement upon the instructions of all Lenders or the Required
Lenders, as applicable, it shall be fully protected in so acting or refraining
from acting upon the required instructions. Notwithstanding the foregoing, Agent
shall not be required to take any action which exposes Agent to liability or
which is contrary to any of the Loan Documents or applicable law. Agent may
require that it be furnished with an indemnification from each Lender for such
Lender's Pro Rata Percentage of such liability, in form reasonably satisfactory
to Agent as a condition of Agent acting or refraining from acting upon the
instructions of all Lenders or the Required Lenders, as applicable. If Agent is
one of the Lenders, an indemnification from Agent to itself will not be
required.
. Nature of Duties. Agent shall have no duties or responsibilities
except those expressly set forth in this Agreement and the Loan Documents.
Neither Agent nor any of its officers, directors, employees or agents shall be
(a) liable for any action taken or omitted by them as such hereunder or in
connection herewith, unless caused by their gross negligence or willful
misconduct, or (b) responsible in any manner to any Lender for any recitals,
statements, representations or warranties made by any Obligor or any officer or
representative thereof contained in any of the Loan Documents or in any
certificate, report, statement or other documents referred to or provided for
in, or received by Agent or any Lender under or in connection with, this
Agreement or any of the Loan Documents, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement, the
Collateral or any of the Loan Documents, or for any failure of any Obligor to
perform their obligations under the Loan Documents or for the financial
condition of any Covered Person. Any liability of the Agent to the Lenders
hereunder or under any of the Loan Documents shall be limited only to direct
loss or liability suffered by such Lender and shall not be for indirect,
consequential or incidental liability. Agent shall not be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any of
the Loan Documents, or to inspect the properties, books or records of any
Covered Person. Except as expressly provided herein and in the Loan Documents,
the duties of the Agent shall be mechanical and administrative in nature. Agent
shall not have, by reason of this Agreement, a fiduciary relationship in respect
of any Lender. Nothing in this Agreement, expressed or implied, is intended to
or shall be so construed as to impose upon Agent any obligation in respect of
this Agreement, except as expressly set forth herein and in the Loan Documents.
. Lack of Reliance on the Agent. Independently and without reliance
upon Agent or any other Lender, each Lender has made and shall continue to make
(a) its own independent investigation of the financial condition and affairs of
Borrower and its Subsidiaries in connection with the extension of credit to the
Borrower and the continuance of such credit facilities and the taking or not
taking of any action in connection herewith, and (b) its own appraisal of the
credit worthiness of Borrower and its Subsidiaries. Agent shall have no duty or
responsibility either initially or on a continuing basis, to provide Lenders
with any credit or other information with respect thereto, coming into its
possession. Lenders acknowledge and agree that Agent has not made any
representations or warranties to any Lender regarding the financial conditions,
affairs or creditworthiness of Borrower and/or its Subsidiaries.
. Resignation. Agent may resign on thirty (30) days' prior written
notice to each of the Lenders and Borrower. Upon any resignation of Agent, the
Required Lenders shall have the right to appoint a successor Agent. Upon the
acceptance of the appointment as a successor Agent, such successor Agent shall
succeed to and become vested with all rights, powers, obligations and duties of
the resigning Agent and the resigning Agent shall be discharged from all of its
obligations hereunder.
. Certain Rights of Agent. If Agent shall request instructions from the
Lenders with respect to any act or action (including failure to act) in
connection with the Loan Documents, Agent shall be entitled to refrain from such
act or taking such action unless and until Agent shall have received
instructions from all Lenders or the Required Lenders, as applicable. Agent
shall not incur liability to any Person by reason of so refraining. Without
limiting the foregoing, no Lender shall have any right of action whatsoever
against Agent as a result of Agent acting in accordance with the written
instructions of all Lenders or the Required Lenders, as applicable. All requests
for instructions by Agent and all responses by the Lenders to such requests must
be in writing, which writing may include a telecopied transmission.
. Reliance. Agent shall be entitled to rely, and shall be fully
protected in relying, upon any notice, writing, resolution, statement,
certificate, telex, teletype or telecopier message, cablegram, order or other
document believed by it to be genuine and correct and to have been signed, sent
or made by the proper person or entity, and, with respect to all legal matters
pertaining to this Agreement, the Loan Documents and its duties hereunder and
thereunder, upon the advice of counsel selected by it. Agent may employ agents
and attorneys-in-fact and shall not be liable for the default or misconduct of
any such agents or attorneys-in-fact selected by Agent with reasonable care.
. Notice of Default. Agent shall not be deemed to have knowledge or
notice of the occurrence of any Event of Default under the Loan Documents unless
Agent has received written notice from a Lender or Borrower referring to the
Loan Documents, describing such Event of Default and stating that such notice is
a "notice of default". In the event that any Lender shall have "actual
knowledge" of the occurrence of any Event of Default, such Lender shall promptly
notify Agent in writing. Upon such notice of the occurrence of an Event of
Default, Agent shall promptly give notice thereof to the Lenders. For purposes
hereof, a Lender shall be deemed to have "actual knowledge" if any such
information is known to an officer of such Lender responsible for the credit
facilities contemplated hereunder.
. The Agent in its Capacity as Lender. With respect to the advances and
credit accommodations made by CoreStates to Borrower under the Loan Documents
and CoreStates' Revolver Note, CoreStates shall have the same rights and powers
hereunder as any other Lender as if it were not performing the duties as Agent
specified herein; and the term "Lender" or any similar terms shall, unless the
context clearly otherwise indicates, include CoreStates in its individual
capacity as a Lender.
. Other Loans. Agent and each Lender may engage in other business with
Obligors as if it were not performing the duties specified herein, and may
accept fees and other consideration from Obligors for services in connection
therewith without having to account for the same to the Lenders. In the event
that any Lender obtains collateral (other than the Collateral described in this
Agreement) to secure any other loan or credit accommodation extended by such
Lender to an Obligor and such other collateral also secures any of the Lender
Indebtedness, such Lender may apply the proceeds of such other collateral
towards payment of all other obligations of such Obligor to such Lender before
applying any proceeds thereof to any Lender Indebtedness for the pro rata
benefit of the Lenders. Notwithstanding the foregoing, any items or funds
against which a Lender or Lender Affiliate exercises a right of set-off under
Section 13.3 of this Agreement shall be applied toward the Lender Indebtedness.
In the event that any Lender extends credit accommodations to an Obligor other
than in connection with the transactions contemplated in this Agreement, and
such credit accommodations are secured by the Collateral, such Lender agrees
that all proceeds of the Collateral shall be used first to pay all Lender
Indebtedness incurred in connection with the transaction contemplated in this
Agreement; provided, however, that the foregoing is expressly inapplicable to
the CoreStates Line which shall share with the Credit Facilities a pari passu
lien on the Collateral.
. Disclosure of Information; Audits. Each Lender, at the request of
another Lender, will share with such other Lender such financial and other
information in the possession of the Lender regarding the Covered Persons as may
be reasonably requested by another Lender. Borrower consents to the disclosure
of all of such information. To the extent any Lender performs an audit of the
financial condition and operations of any Covered Person or the Collateral, such
Lender shall make the results of such audit available to the other Lenders.
Notwithstanding the foregoing, no Lender shall have any liability to the other
Lenders related to the audit performed by such Lender except for errors in
connection with such audit which constitute gross negligence or willful
misconduct by the Lender or Lender's agent performing such audit.
. Actions by Agent.
() Subject to the other provisions of Article 14 of this
Agreement, Agent shall have the sole and exclusive right and obligation to
service and administer the Lender Indebtedness, the Collateral and the Loan
Documents, including, without limitation, the right to (i) exercise all rights,
remedies, privileges and options under the Loan Documents, including, without
limitation, the right to determine whether Advances are to be made hereunder and
whether any Letters of Credit should be issued, amended, extended or reinstated
or whether draws should be honored thereunder; and (ii) on behalf of Lenders,
enter into or provide written waivers, consents or elections to or under any of
the Loan Documents.
() Notwithstanding the provisions of subsection (a)
above, Agent shall not, without the prior written consent
of all Lenders:
() increase the Maximum Amount, decrease the
interest rates provided in the Loan Agreement or extend
the Contract Period;
() amend, alter or modify this Section
14.15(b);
() decrease the amount or extend the
payment terms of any fees required to be paid by Borrower
hereunder or under any of the other Loan Documents (except fees payable solely
to Agent or its Affiliates);
() release any Obligor from its obligations
with respect to the Credit Facilities except in
connection with the termination of this Agreement and repayment of all Lender
Indebtedness based on or arising in connection with the Credit Facilities;
() release or subordinate the Agent's
security interest for the pro rata benefit of the Lenders in
any portion of the Collateral without payment to Lenders in accordance with
their respective Post Default Pro Rata Percentage (determined on the date of
release or subordination as if an Event of Default had occurred) of sums
received by Agent from Obligors in connection with such release or
subordination, except for (x) releases of Collateral with a value of not more
than Five Hundred Thousand Dollars ($500,000.00) in any calendar year, (y)
releases of Collateral which may be sold or assigned by Borrower under Section
7.6, and (z) releases of Collateral otherwise permitted under this Agreement;
() amend, alter or modify Section 1.64 or
the method of delivery of notices (but not actual
-------------
addresses) among Lenders hereunder; or
() make any Foreign Currency Advances in any
currency not approved by all Lenders.
() Notwithstanding the provisions of subsection 14.15(a)
above, Agent shall not, without the prior written consent of the Required
Lenders, enter into any written amendment of, or waive any Obligor's
noncompliance with, any covenants of such Obligor under the Loan Documents or
waive any Event of Default under the Loan Documents. The provisions of this
subparagraph (c) may not be amended or altered without the consent of all
Lenders.
() Any action taken in accordance with the terms of this
Section 14.15, including any amendment, supplement, waiver, consent or election,
shall apply equally to each of the Lenders and shall be binding upon the
Lenders, the Agent and all participants. In the case of any waiver of any Event
of Default, the Event of Default waived shall be deemed to be cured and not
continuing, but no waiver of a specific Event of Default shall extend to any
subsequent Event of Default (whether or not the subsequent Event of Default is
the same as the Event of Default which was waived), or impair any right
consequent thereon.
() After the occurrence of an Event of Default, Agent shall
take such action as may be directed by the Required Lenders, provided that until
it receives such direction, and if Agent deems exigent circumstances to exist
which may adversely affect the Lenders or the Collateral, Agent shall have the
sole and exclusive right, with communication (to the extent reasonably
practicable under the circumstances) with all Lenders, to exercise or refrain
from exercising any and all rights, remedies, privileges and options under the
Loan Documents and available at law or in equity as Agent shall deem advisable
in the best interest of the Lenders to protect and enforce the rights of the
Agent and the Lenders and collect the Lender Indebtedness, including, without
limitation, instituting and pursuing all legal actions against Obligors, or
defending any and all actions brought by any Lender or other Person, or
incurring expenses or otherwise making expenditures to protect the Lender
Indebtedness, the Collateral or the Agent's and the Lenders' rights and
remedies. The provisions of this subparagraph (e) may not be amended or altered
without the consent of the Required Lenders.
() To the extent Agent is required to obtain or otherwise
elects to seek the consent of Lenders to an action Agent desires to take, if any
Lender fails to notify Agent, in writing, of its consent or dissent to any
request of Agent hereunder within five (5) Business Days of such Lender's
receipt of such written request (which may include a telecopied transmission),
such Lender shall be deemed to have given its consent thereto. If any Lender
will not consent to such action, CoreStates shall have the right, but not the
obligation, upon five (5) Business Days' prior notice to the applicable Lender,
to purchase through itself or any Affiliate such Lender's Pro Rata Share for an
amount equal to the outstanding principal balance thereof, plus all accrued and
unpaid interest thereon.
() Nothing contained herein limits CoreStates' ability,
without the consent of Agent or any of the other Lenders, to amend, modify or
waive any of the terms of the CoreStates Line, to terminate or assign the
CoreStates Line or to release any Obligor or Collateral with respect thereto.
. Sharing of Risk; Indemnification; Expenses.
() To the extent Agent is not reimbursed by Obligors, the
Lenders will reimburse and indemnify the Agent in proportion to their respective
Pro Rata Percentages, for and against any and all liabilities, obligations,
losses (except the failure of the Agent to receive the fees which are to be
retained by Agent in full), damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever, including,
without limitation, attorneys' fees, which may be imposed on, incurred by or
asserted against Agent in performing its duties hereunder or under the Loan
Documents, or in any way relating to or arising out of this Agreement or the
Loan Documents; provided, however, that Lenders shall have no obligation to
reimburse Agent for liabilities, losses or damages which have been determined by
a court of competent jurisdiction to have resulted directly from actions or
omissions of Agent which constitute gross negligence or willful misconduct.
() All reasonable out-of-pocket costs and expenses incurred by
Agent and not reimbursed on demand by Obligors, in connection with the creation,
amendment, administration, termination and enforcement of any of the Credit
Facilities and/or the exercise of the Agent's rights and duties hereunder or
under the Loan Documents (including, without limitation, audit expenses, counsel
fees and expenditures to protect, preserve and defend Agent's and each Lender's
rights and interest under the Loan Documents) shall be shared and paid on demand
by Lenders, pro rata based on their respective Pro Rata Percentages. Any such
sums not paid on demand shall accrue interest at the Federal Funds Effective
Rate until paid.
() Agent may deduct from payments or distributions to be made
to Lenders such funds as may be necessary to pay or reimburse Agent for the
reimbursement, indemnification and expense obligations of the Lenders described
in this Section 14.16.
. Consultation with Counsel. The Agent may consult with legal counsel
and any other profession advisors or consultants deemed necessary or appropriate
and selected by Agent and shall not be liable for any action taken or suffered
in good faith by it in accordance with the advice of such counsel.
. Documents. The Agent shall not be under a duty to examine or pass
upon the effectiveness, genuineness or validity of this Agreement or any of the
other Loan Documents or any other instrument or document furnished pursuant
hereto or in connection therewith, and the Agent shall be entitled to assume
that the same are valid, effective and genuine and what they purport to be. In
addition the Agent shall not be liable for failing to make any inquiry
concerning the accuracy, performance or observance of any of the terms,
provisions or conditions of any other Loan Documents or other such instrument or
document.
. Several Obligations. The obligation of each Lender is
several, and neither the Agent nor any other Lender shall be
responsible for any obligation or commitment hereunder of any other Lender.
. No Third Party Beneficiary. The provisions of Article 14 of this
Agreement are intended solely for the benefit of Agent and Lenders and not for
the benefit of any third party, including without limitation, any Covered
Persons and any amendment to Article 14 of this Agreement shall not require the
consent of any Covered Persons.
. Participations and Assignments.
() Each Lender may at any time grant participations of its Pro
Rata Share in and to its interests under this Agreement (collectively,
"Participations") to any other lending office of such Lender or to any other
bank or other financial institution which the granting Lender reasonably
determines has the requisite sophistication to evaluate the merits and risks of
investments in Participations ("Participants"); provided, however, that: (i) all
amounts payable by the Borrower to each Lender hereunder and voting rights of
each Lender hereunder shall be determined as if such Lender had not granted such
Participation; (ii) any agreement pursuant to which any Lender may grant a
Participation (A) shall provide that such Lender is not delegating and therefore
shall retain the sole right and responsibility to exercise all of its rights and
privileges under this Agreement, including, without limitation, the right to
approve any amendment, modification or waiver of any provisions of this
Agreement and (B) shall not release or discharge such Lender from its duties and
obligations, which shall remain absolute, hereunder, including its obligation to
make advances hereunder; and (iii) upon entering into any such Participation,
the Lender granting such participation shall give thirty (30) days prior written
notice thereof to Agent and Borrower.
() Each Lender may at any time assign up to 50% of the
original portion of its Pro Rata Share (together with its rights and obligations
with respect thereto) and its right, title and interest therein and in and to
this Agreement and the other Loan Documents to a Lender or any Affiliate of a
Lender, or to any other bank or financial institution, in each case with thirty
(30) days prior written notice to Agent and Borrower and subject to the prior
written consent of the Agent which shall not be unreasonably withheld; provided,
however, that (i) such assignment shall not result in either the assigning or
acquiring Lender having a Pro Rata Share of less than $5,000,000; (ii) any
assignment to another Lender (which is then a party to this Agreement) or to any
other bank or financial institution shall be in the minimum amount of
$5,000,000; (iii) the parties to such assignment shall execute an assignment and
acceptance in the form of Exhibit D and such other documents as reasonably
requested by Agent, and Obligors shall execute such replacement Notes,
amendments and other items as may be requested by Agent, including, without
limitation, amendments to Schedule B of this Agreement to reflect any transfers;
and (iv) the parties to the assignment shall pay Agent a processing fee of
$3,500.00 at the time of providing such assignment to Agent. Provided that no
Event of Default has occurred, any assignment by a Lender of its Pro Rata Share
to a Person who is not already a Lender shall be subject to Borrower's consent,
which consent shall not be unreasonably withheld or delayed by Borrower.
() Notwithstanding anything to the contrary contained herein,
each Lender may at any time collaterally assign all or any portion of its rights
under this Agreement and its Revolver Note to any Federal Reserve Bank to secure
overnight deposits, provided that no such assignment shall release the assigning
Lender from its obligations hereunder.
. COMMUNICATIONS AND NOTICES.
. Communications and Notices. All notices, requests and other
communications made or given in connection with the Loan Documents shall be in
writing and, unless receipt is stated herein to be required, shall be deemed to
have been validly given if delivered personally to the individual or division or
department to whose attention notices to a party are to be addressed, or by
private carrier, or registered or certified mail, return receipt requested, or
by telecopy with the original forwarded by recognized overnight delivery
service, in all cases, with charges prepaid, addressed as follows, until some
other address (or individual or division or department for attention) shall have
been designated by notice given by one party to the other:
To Borrower: The JPM Company
155 North 15th Street
Lewisburg, PA 17837
Attention: John H. Mathias, Chairman & CEO
Telecopier: (717) 524-5660
With copies to: The JPM Company
155 North 15th Street
Lewisburg, PA 17837
Attention: Wayne Bromfield, Exec. Vice
President and General Counsel
Telecopier: (717) 524-5660
Brian W. Bisignani, Esquire
Duane Morris & Heckscher LLP
P. O. Box 1003
305 N. Front Street
Harrisburg, PA 17108-1003
Telecopier: (717) 232-4015/6715
To Agent: CoreStates Bank, N. A.
30 N. 3rd Street
Harrisburg, PA 17108
Attention: David Diffenderffer, Vice
President
Telecopier: (717) 234-2884
With a copy to: Wolf, Block, Schorr and Solis-Cohen LLP
350 Sentry Parkway, Building 640
Blue Bell, Pennsylvania 19422
Attention: Katherine F. Bastian, Esquire
Telecopy Number: (610) 238-0305/0374
To Lenders at their addresses set forth on Schedule B hereto.
. WAIVERS.
. Waivers. In connection with any proceedings under the Loan Documents,
including without limitation any action in replevin, foreclosure or other court
process or in connection with any other action related to the Loan Documents or
the transactions contemplated hereunder, each Obligor waives:
() all errors, defects and imperfections in such
proceedings;
() all benefits under any present or future laws exempting any
property, real or personal, or any part of any proceeds thereof from attachment,
levy or sale under execution, or providing for any stay of execution to be
issued on any judgment recovered under any of the Loan Documents or in any
replevin or foreclosure proceeding, or otherwise providing for any valuation,
appraisal or exemption;
() all rights to inquisition on any real estate, which real
estate may be levied upon pursuant to a judgment obtained under any of the Loan
Documents and sold upon any writ of execution issued thereon in whole or in
part, in any order desired by Agent;
() presentment for payment, demand, notice of demand,
notice of non-payment, protest and notice of protest of
any of the Loan Documents, including the Notes;
() any requirement for bonds, security or sureties
required by statute, court rule or otherwise;
() any demand for possession of Collateral prior to
commencement of any suit; and
() all rights to claim or recover attorney's fees and
costs in the event that any Obligor is successful in any
action to remove, suspend or prevent the enforcement of a judgment entered by
confession.
. Forbearance. Subject to the provisions of Article 14 above,
Agent may release, compromise, forbear with respect to,
waive, suspend, extend or renew any of the terms of the Loan Documents, without
notice to Obligors.
. Limitation on Liability. Obligors shall be responsible
for and Agent and each Lender is hereby released from any
claim or liability in connection with:
() Safekeeping any Collateral;
() Any loss or damage to any Collateral;
() Any diminution in value of the Collateral; or
() Any act or default of another Person.
Agent and any Lender shall only be liable to Obligors for any act or
omission on its part constituting gross negligence or wilful misconduct. In the
event that Agent or any Lender breaches its required standard of conduct,
Obligors agree that Agent or such Lender's liability shall be only for direct
damages suffered and shall not extend to consequential or incidental damages. In
the event an Obligor brings suit against Agent or any Lender in connection with
the transactions contemplated hereunder and Agent or such Lender is found not to
be liable, Obligors will indemnify and hold Agent or such Lender harmless from
all costs and expenses, including attorney's fees, incurred by Agent or such
Lender in connection with such suit. This Agreement is not intended to obligate
Agent or any Lender to take any action with respect to the Collateral or to
incur expenses or perform any obligation or duty of Obligors.
. SUBMISSION TO JURISDICTION.
. Submission to Jurisdiction. Obligors hereby consent to the exclusive
jurisdiction of any state or federal court located within the Commonwealth of
Pennsylvania, and irrevocably agree that, subject to the Agent's election, all
actions or proceedings relating to the Loan Documents or the transactions
contemplated hereunder shall be litigated in such courts, and Obligors waive any
objection which they may have based on lack of personal jurisdiction, improper
venue or forum non conveniens to the conduct of any proceeding in any such court
and waive personal service of any and all process upon them, and consent that
all such service of process be made by mail or messenger directed to them at the
address set forth in Section 15.1. Nothing contained in this Section 17.1 shall
affect the right of Agent to serve legal process in any other manner permitted
by law or affect the right of Agent to bring any action or proceeding against
Obligors or their property in the courts of any other jurisdiction.
. MISCELLANEOUS.
. Brokers. The transaction contemplated hereunder was brought about and
entered into by Agent, Lenders and Obligors acting as principals and without any
brokers, agents or finders being the effective procuring cause hereof. Obligors
represent to Agent and Lenders that Obligors have not committed Agent or Lenders
to the payment of any brokerage fee or commission in connection with this
transaction. Whether any such claim is made against Agent or Lenders by any
broker, finder or agent or any other Person, Obligors agree to indemnify, defend
and hold Agent or Lenders harmless against any such claim, at Obligors' own cost
and expense, including Agent's and/or Lenders' attorneys' fees. Obligors further
agree that until any such claim or demand is adjudicated in Agent's and/or
Lenders' favor, the amount claimed and/or demanded shall be deemed part of the
Lender Indebtedness secured by the Collateral.
. Use of Lenders' Names. No Obligor shall use Agent's or any Lender's
name or the name of any of Lenders' Affiliates in connection with any of its
business or activities except as may otherwise be required by the rules and
regulations of the Securities and Exchange Commission or any like regulatory
body and except as may be required in its dealings with any governmental agency.
. No Joint Venture. Nothing contained herein is intended to
permit or authorize any Obligor to make any contract on
behalf of any Lender nor shall this Agreement be construed as creating a
partnership, joint venture or making any Lender an investor
in any Obligor.
. Survival. All covenants, agreements, representations and warranties
made by Obligors in the Loan Documents, including, without limitation, the
Commitment, or made by or on their behalf in connection with the transactions
contemplated here shall be true at all times this Agreement is in effect and
shall survive the execution and delivery of the Loan Documents, any
investigation at any time made by Agent or any Lender on its behalf and the
making by Agent of the Loans to Borrower. All statements contained in any
certificate, statement or other document delivered by or on behalf of Obligors
pursuant hereto or in connection with the transactions contemplated hereunder
shall be deemed representations and warranties by Obligors.
. No Assignment. No Obligor may assign any of its rights
hereunder and Lenders shall not be required to lend
hereunder except to Borrower as it presently exists.
. Binding Effect. This Agreement and all rights and powers
granted hereby will bind and inure to the benefit of the
parties hereto and their respective permitted successors and assigns.
. Severability. The provisions of this Agreement and all
other Loan Documents are deemed to be severable, and the
invalidity or unenforceability of any provision shall not affect or impair
the remaining provisions which shall continue in full
force and effect.
. No Third Party Beneficiaries. The rights and benefits of
this Agreement and the Loan Documents shall not inure to
the benefit of any third party.
. Modifications. No modification of this Agreement or any
of the Loan Documents shall be binding or enforceable
unless in writing and signed by or on behalf of the party against whom
enforcement is sought.
. Holidays. If the day provided herein for the payment of any
amount or the taking of any action falls on a Saturday,
Sunday or public holiday at the place for payment or action, then the due date
for such payment or action will be the next succeeding
Business Day.
. Law Governing. This Agreement has been made, executed and delivered
in the Commonwealth of Pennsylvania and shall be governed by and construed in
accordance with the internal laws of the Commonwealth of Pennsylvania, without
giving effect to any choice of law or conflict of law provision or rule (whether
of the Commonwealth of Pennsylvania or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the Commonwealth of
Pennsylvania.
. Integration. The Loan Documents shall be construed as integrated and
complementary of each other, and as augmenting and not restricting Agent's or
Lender's rights, powers, remedies and security. The Loan Documents contain the
entire understanding of the parties thereto with respect to the matters
contained therein and supersede all prior agreements and understandings between
the parties with respect to the subject matter thereof and do not require parol
or extrinsic evidence in order to reflect the intent of the parties. In the
event of any inconsistency between the terms of this Agreement and the terms of
the other Loan Documents, the terms of this Agreement shall prevail.
. Exhibits and Schedules. All exhibits and schedules attached
hereto are hereby made a part of this Agreement.
. Headings. The headings of the Articles, Sections,
paragraphs and clauses of this Agreement are inserted for
convenience only and shall not be deemed to constitute a part of this Agreement.
. Counterparts. This Agreement may be executed in any number
of counterparts, all of which taken together shall
constitute one and the same instrument, and any of the parties hereto may
execute this Agreement by signing any such counterpart.
. Waiver of Right to Trial by Jury. OBLIGORS, AGENT AND EACH LENDER
WAIVE ANY RIGHT TO TRIAL BY JURY ON ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
(a) ARISING UNDER ANY OF THE LOAN DOCUMENTS OR (b) IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF SUCH PARTIES WITH RESPECT TO ANY OF THE
LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE
WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. OBLIGORS, AGENT AND EACH
LENDER AGREE AND CONSENT THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS
AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF OBLIGORS, AGENT AND EACH LENDER TO
THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. OBLIGORS, AGENT AND EACH LENDER
ACKNOWLEDGE THAT THEY HAVE HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL REGARDING
THIS SECTION, THAT THEY FULLY UNDERSTAND ITS TERMS, CONTENT AND EFFECT, AND THAT
THEY VOLUNTARILY AND KNOWINGLY AGREE TO THE TERMS OF THIS SECTION.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE JPM COMPANY
By:
William D. Baker, Vice President,
Chief Financial Officer and Treasurer
AGENT:
CORESTATES BANK, N.A., as Agent
By:
David Diffenderffer, Vice President
ISSUING BANK:
CORESTATES BANK, N. A., as Issuing Bank
By:
David Diffenderffer, Vice President
LENDERS:
CORESTATES BANK, N.A., as Lender
By:
David Diffenderffer, Vice President
MELLON BANK, N.A.
By:
Name/Title:
NATIONSBANK, N.A.
By:
Name/Title:
PNC BANK, NATIONAL ASSOCIATION
By:
Name/Title:
<PAGE>
The undersigned, intending to be legally bound, hereby join in the
representations and warranties and consent to and agree to be bound by the
terms, conditions and covenants applicable to the undersigned as set forth in
the foregoing Loan Agreement, including without limitations the waivers set
forth in Sections 16.1 and 18.16.
JPM TECHNOLOGY, INC.
By:
Joseph A. Mattioli, President
(CORPORATE SEAL)
THE JPM COMPANY OF DELAWARE
By:
Name/Title:
(CORPORATE SEAL)
DENRON, INC.
By:
Name/Title:
(CORPORATE SEAL)
<PAGE>
<TABLE>
<CAPTION>
SCHEDULE A
Borrower's Funded Applicable Base Applicable LIBOR
Debt/EBIDTA* Rate Margin Rate Margin
<S> <C> <C>
< 2.0 to 1.0 0% .875%
> 2.0 to 1.0 0% 1.125%
- -
but < 2.5 to 1.0
> 2.5 to 1.0 0% 1.375%
- -
but < 3.0 to 1.0
> 3.0 to 1.0 .25% 1.625%
- -
but < 3.25 to 1.0
> 3.25 to 1.0 .25% 2.0%
- -
</TABLE>
*Funded Debt/EBITDA means, as of the end of each fiscal quarter of
Borrower and determined for the 12 month period then ended, (a) total funded
debt of Borrower and its Subsidiaries for such period (Indebtedness for borrowed
money plus Capitalized Lease Obligations), divided by (b) EBITDA for such
period; all calculated on a Consolidated Basis and in accordance with GAAP.
