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U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934 (FEE REQUIRED)
For the fiscal year ended March 31, 1997
Commission file number 0-7438
DYNATECH CORPORATION
(Exact name of registrant as specified in its charter)
MASSACHUSETTS 04-2258582
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
3 New England Executive Park
Burlington, Massachusetts 01803-5087
(Address of principal executive offices)(Zip code)
Registrant's telephone number, including area code: (617) 272-6100
Securities registered pursuant to Section 12(b) of the Act:
None
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.20 per share
(Title of class)
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No .
--- ---
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. {X}
At June 6, 1997, the aggregate market value of the Common Stock of the
registrant held by non-affiliates was $610,475,323.
At June 6, 1997 there were 16,675,563 shares of Common Stock of the registrant
outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the 1997 Annual Report to Shareholders are incorporated by reference
in Parts I and II.
Portions of the proxy statement for the 1997 Annual Meeting of Shareholders are
incorporated by reference in Part III.
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PART I
ITEM 1. BUSINESS.
PRODUCTS AND SERVICES
Incorporated in Massachusetts in 1959, Dynatech Corporation (the
"Company") has its principal offices at 3 New England Executive Park,
Burlington, Massachusetts 01803. Production facilities are located in eight
states.
The Company is a global communications equipment firm engaged in the
business of developing, manufacturing, marketing, and selling network technology
solutions. These solutions can be categorized into three product types:
Communications Test, Industrial Computing and Communications Systems, and Visual
Communications. In fiscal 1997, these accounted for 58%, 22%, and 20%,
respectively, of consolidated revenues.
COMMUNICATIONS TEST
The Company provides a broad range of test and analysis products,
service, and support which enable customers worldwide to develop, manufacture,
install, and maintain communications networks and equipment. These products are
designed, manufactured, and marketed by Telecommunications Techniques
Corporation (TTC), Tele-Path Instruments, Inc. (TPI), and Synergistic Solutions
Inc. (SSI), wholly owned subsidiaries of the Company based in Maryland,
Virginia, and Georgia, respectively.
The market for these products comprise: i) service providers including
the Bell operating companies, long-distance companies, competitive access
providers, cable television operators, utility companies and communications
service providers in Europe, Latin America, and Asia; ii) service users
including large corporate and government network operators; and iii)
manufacturers of communications equipment and systems.
Since the divestiture of AT&T in 1984, the amount of digital traffic
transmitted through the worldwide telecommunications system has increased
dramatically, in part due to the proliferation of computer networks and the
increased desire to communicate electronically. Growth of LAN backbones and
interconnections, high-speed interconnects, Internet access, and
cellular/wireless communications systems are leading to the deployment of new
high-speed transmission technologies such as Synchronous Optical Network
(SONET), Asynchronous Transfer Mode (ATM), frame relay, and Integrated Services
Digital Network (ISDN). The market for the Company's products is driven in part
by the rapid deployment of these technologies and other new communications
standards, as well as efforts on the part of communication service providers and
users to improve service quality and to reduce costs. Deregulatory activity
around the world, such as the Telecommunications Act of 1996 in the United
States, has and will continue to increase competition among service providers
and will further drive demands for more integrated and intelligent test
solutions.
The Company's communications test products are used in two key
categories of applications: Transmission Testing and Network Services Testing.
Transmission Testing products are geared primarily to long-distance and local
service providers for testing the digital transport, digital loop, and the
terrestrial portion of wireless communications networks. Network Services
Testing products are used by service providers as well as service users to test
Datacom Services (the data services provided to businesses) and Internetworking
(maintaining the interconnections between LANs and WANs).
The Company sells its communications test products under the following
brand names: T-BERD(R), FIREBERD(R), CENTEST(R), INTERCEPTOR(R), FIBERSCAN(R),
TPI(R), and SSI(R).
Transmission Testing
Digital transport test products analyze high-speed ATM, SONET/SDH, DS3,
DS1, and DS0 transmission circuits while measuring multiple performance
parameters. The products are used by service
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providers to determine the quality of newly installed high-speed circuits by
performing various measurements over a timed test period.
The Company's digital transport products also serve the international
telecommunications industry by providing portable digital testing capability for
transmission systems that operate in accordance with the Consultative Committee
on International Telephone and Telegraph (CCITT) standards. These products,
marketed under the INTERCEPTOR name, comply with International
Telecommunications Union (ITU) standards, which are used nearly everywhere that
North American standards are not.
Digital loop test products test the link between a service provider's
central office and the customer premises. Technicians use these products to
perform fault location and data quality testing of voice or data circuits,
whether carried on copper wire pairs or fiber optic cable.
The Company's rack-mounted centralized test systems are used in the
service provider central-office environment to test high-speed communication
circuits remotely. The CENTEST model 650 allows monitoring and testing of DSO,
DS1, and DS3 signals, respectively, for ongoing maintenance, so that network
trouble spots can be quickly identified and mobile repair crews can be
efficiently directed from a central location.
The Company markets, develops, and sells products designed to test the
terrestrial portion of wireless networks. In fiscal 1997, the Company introduced
the T-BERD 2207 analyzer, which is a modular, battery-powered, hand-held test
instrument designed for the installation and maintenance of PCS-1900 (GSM)
digital wireless networks. In addition to performing physical layer testing and
in-service monitoring of T1 circuit connections, these instruments are used to
verify proper operation and voice quality of signals transmitted between
wireless base stations and mobile switch centers.
The Company also sells modular, portable fiber optic test instruments
that allow both central office and field technicians to isolate fiber optic
cable breaks and measure degradation caused by aging connectors and related
components. The instruments include an optical time domain reflectometer used to
locate cable breaks and damage, an optical power meter used to determine the
signal levels on optical fibers, and a stable optical source.
Network Services Testing
The Company's data communications analyzers perform up to 60
simultaneous performance and error measurements on a wide range of network
transmission equipment. For its family of FIREBERD 4000 and 6000 products, the
Company offers a wide range of test interfaces, including Euro-ISDN (a leading
European communications service), which enable users to tailor the instrument to
specific test requirements. The Company also supplies hand-held, single-function
test sets for installing and maintaining ISDN and frame relay circuits. In
addition, the Company introduced in fiscal 1997 the T-BERD 950 communications
analyzer that combines multiple voice and data services test capabilities into a
single, portable test instrument. This instrument is designed for field service
technicians seeking a single test set, rather than multiple instruments, for
turning up and troubleshooting a number of different types of circuits,
equipment, and services.
The Company markets internetwork protocol analyzers to test and verify
interconnections between LANs and WANs. The FIREBERD 500, a Windows-based
modular test platform introduced in fiscal 1995, is capable of analyzing ATM,
frame relay, FDDI, ISDN, CDPD (a cellular protocol), TR-303, and SS7
communications networks. The FIREBERD 500 enables network managers to monitor
network behavior and to pinpoint problems within the internetwork.
INDUSTRIAL COMPUTING AND COMMUNICATIONS
The Company's Industrial Computing and Communications business
addresses two areas of the worldwide ruggedized computer market: 1) computer
products and systems used by engineers, scientists, and others in industrial or
otherwise harsh environments; and 2) lightweight computing and
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communications devices used by mobile, field-service organizations such as
telephone companies and utilities.
Sold through direct marketing channels under the name of Industrial
Computer Source, the Company provides a broad range of industrial computer,
input/output and accessory products, and communications devices which are
designed to operate continuously and reliably under adverse conditions. These
products are built to withstand disruptive electrical interference, vibration,
extremes of heat and cold, airborne dust, moisture and other hazards.
Industrial Computer Source products can be classified into the
following categories: ruggedized computer system chassis, graphical user
interfaces, communicating devices, storage and retreival systems, and
environmental sensing devices.
Ruggedized computer system chassis are computer enclosures or housings
that protect either industry-standard motherboards or passive backplane
technology for industrial or telecommunications applications. Passive backplanes
contain no electronically active components, but act as a place to plug in
components or cards such as central processing unit cards. Generally, backplane
architectures offer greater flexibility than standard PCs and up to three times
the feature card capacity.
Graphical industrial user interface products include industrial color
and monochrome monitors and accessory products. In a production plant
environment, these products can display production process information on a
computer screen to simplify man-to-machine interaction with plant machinery and
processes.
The Company sells a complete selection of communicating devices and
networking products such as LAN adapters, transceivers and repeaters, bridges,
hubs, trunk access units, data compressors, as well as other application
specific network products and accessories. These products are compatible with
most popular network protocols and meet the increasing demands of network
managers in a variety of application environments from computer-integrated
manufacturing to telecommunications. In these environments, data are being
linked for the purpose of analyzing, controlling, or reporting on a variety of
parameters such as a factory production process.
The Company provides storage and retrieval systems such as its Model
6533-RMDB Series of rack-mount drive bays which, when loaded with up to eight
half-height disk drives of various types, can provide up to 14 gigabytes of
storage capacity. These are suited to applications such as telecommunications
which require large amounts of memory storage for voice, video, and data
communications processing. The Company's line of storage and retrieval products
include floppy and hard drives in all popular formats, CD-ROM drives, SIMM
memory modules, RAID and tape backup systems.
Environmental sensing devices are used to convert real world "analog"
process signals such as temperature and flow into digital data that can be
communicated via the network to other processing units for local or remote
analysis, control, reporting, storage or any other use related to improving
process efficiency.
Through its subsidiary, Itronix Corporation, which was acquired on
December 31, 1996, the Company is a leading supplier of lightweight, networked
computing and communications devices used by mobile, field-service technicians.
These products are carried by field-service technicians who use them in a broad
range of environments to communicate - either through wireline or wireless
connections - to a central office.
Itronix targets telephone companies, utilities, and other organizations
seeking to increase the efficiency of their field-service groups. Service
technicians often make multiple service calls to different locations without
returning to a base office. The use of networked computing devices allows for
more effective dispatching to service sites and provides two-way communications
with technicians. Itronix's
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flagship product provides technicians with the ability to access engineering
data and customer service histories, or to collect and transmit key information
regarding their service calls to a central database.
A critical feature of the Itronix product is its ability to operate
reliably in adverse environments and work conditions. This capability is due to
a proprietary design that allows the product to withstand mechanical shock,
vibration, moisture, and extreme temperature. In addition, the product can be
equipped with a landline telephone modem option and integrated CDPD, RAM,
Cellular, ARDIS wireless radio capability to facilitate simultaneous two-way
voice and data communication from virtually anywhere. Other features include
intelligent battery-life management and touch screen functionality.
VISUAL COMMUNICATIONS
The Company sells a range of hardware and software used in the
manipulation and display of digital video and graphics. These products are sold
under the names Parallax Graphics, DataViews, AIRSHOW, daVinci Systems, and
ComCoTec.
Parallax Graphics' products combine full-color live video using
real-time digital video compression with computer graphics and text for such
applications as product training, display of financial market information,
geographic display, and information systems. These products include a live video
windowing system for SUN Microsystems, Hewlett-Packard, DEC, and IBM
workstations.
DataViews software is used in the development of custom graphic user
interfaces for various UNIX-based computer systems. Applications for this
software include the creation of custom graphics for displaying real-time data
such as found in manufacturing process control and communications network
analysis.
AIRSHOW passenger cabin video information systems display position
defining maps, airport terminal charts, and in-flight information.
daVinci Systems line of digital color correction systems are used to
enhance and color-match video program and commercial material as it is
transferred from film origination to video tape for editing and distribution.
These systems are sold to teleproduction and commercial production facilities.
Dynatech also offers software solutions for the pharmacy industry, via
its ComCoTec Rx Claims, an on-line prescription claims adjudication system.
DISCONTINUED OPERATIONS AND DIVESTED BUSINESSES
During fiscal 1997, the Company completed its formal plan to sell
certain discontinued operations. Ten businesses were sold during fiscal 1997.
CUSTOMERS AND MARKETING
Dynatech markets its products to a diverse customer base. The Company's
products are sold to a broad range of communications service providers,
including Regional Bell Operating Companies, long-distance carriers, competitive
access providers, wireless service companies, independent telephone companies,
cable television operations, and a wide array of computer and data communication
users, corporate and industrial customers, and scientific and educational
organizations.
Most of the Company's revenues are generated through a direct sales
force. The Company also uses distributorships and representative relationships
to sell its products in areas of the United States and the rest of the world
with relatively low sales volume.
COMPETITION
The markets in which the Company competes are highly competitive and
are characterized by rapidly changing technology. Principal competitors include
businesses with significant financial, development, marketing, and manufacturing
resources, as well as numerous small, specialized companies. The Company
believes it holds a relatively favorable position with respect to the important
competitive
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factors in each of its markets. The Company considers rapid product development,
product functionality and features, and highly trained technical sales and
support staff to be key competitive factors.
MAJOR CUSTOMERS
The Company's sales of goods and services to various agencies of the
United States federal government were approximately $17,484,000, $12,785,000,
and $20,040,00 in fiscal years ended March 31, 1997, 1996, and 1995,
respectively. No single customer accounted for more than 10% of sales in any of
these three years.
INTERNATIONAL
The Company maintains marketing subsidiaries or branches in major
countries in Western Europe and Asia and has distribution agreements in many
other countries where sales volume does not warrant a direct sales organization.
The Company's foreign sales from continuing operations (including exports from
the United States directly to foreign customers) were approximately 20%, 20%,
and 23% of consolidated net sales in fiscal years 1997, 1996, and 1995,
respectively.
The Company's international business is subject to risks customarily
found in foreign operations, such as fluctuations in currency exchange rates,
import and export controls, and regulatory policies of foreign governments. A
summary of the Company's sales, earnings and identifiable assets by geographic
area is found in the 1997 Annual Report to Shareholders which is incorporated
herein by reference.
PRODUCT DEVELOPMENT
As the technologies in the Company's markets are continually changing,
the Company's success depends on its ability to develop new products and improve
existing ones. All businesses within the Company maintain product development
capability focused on and experienced in the technologies important to the
specific business. Consolidated product development expense in the years ended
March 31, 1997, 1996, and 1995 were as follows: $43,267,000, $36,456,000, and
$30,585,000, respectively.
BACKLOG
The Company's backlog of orders at March 31, 1997 and 1996 were
$71,707,000 and $57,317,000, respectively.
EMPLOYEES
The Company employs approximately 2,050 people. The Company's
experience has been that employees having requisite skills for the Company's
purposes are generally available in the areas where its facilities are located.
The Company considers its labor relations to be good.
PATENTS AND TRADEMARKS
The Company generally seeks patent protection for inventions and
improvements to its products, which it believes to be patentable. It holds
numerous United States and foreign patents and patent applications covering many
products. While the Company considers its patent position important, it believes
its technical marketing and manufacturing capabilities are of greater
competitive significance.
Fireberd, T-Berd, Centest, Interceptor, Fiberscan, and Airshow are
among registered trademarks which the Company considers valuable assets.
Dynatech is a registered service mark of the Company in the United
States and a registered trade or service mark (issued or applied for) of the
Company in most other major industrialized countries of the world.
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SUPPLIERS
Materials and components used in the Company's products are normally
available stock items or can be obtained to Company specifications from more
than one potential supplier.
Some components and assemblies are purchased in Asia under volume
contracts.
ENVIRONMENTAL FACTORS
Federal, state and local laws or regulations which have been enacted or
adopted regulating the discharge of materials into the environment have not had,
and under present conditions, the Company does not foresee that they will have,
a material adverse effect on capital expenditures, earnings, or the competitive
position of the Company.
EXECUTIVE OFFICERS OF THE REGISTRANT
The executive officers of the Company are as follows:
<TABLE>
<CAPTION>
Executive
Officer
Name Current Position Age Since
- ---- ---------------- --- ---------
<S> <C> <C> <C>
John F. Reno Chairman, 58 1979
President and Chief Executive Officer
Allan M. Kline Corporate Vice President, 52 1996
Chief Financial Officer and Treasurer
John R. Peeler Corporate Vice President 42 1992
Communications Test Business
George A. Merrick Corporate Vice President 49 1994
Display Business
Samuel W. Tishler Corporate Vice President 59 1997
Corporate Development
John A. Mixon Corporate Vice President 51 1989
Human Resources
Robert W. Woodbury, Jr. Corporate Vice President 40 1996
Corporate Controller
Mark V. B. Tremallo Corporate Vice President 40 1997
General Counsel
</TABLE>
Officers are elected annually by the Board of Directors at its meeting
following the Annual Meeting of Shareholders and serve until the next annual
election or until their successors have been duly elected at any other
Director's meeting. There are no arrangements or understandings between any of
the Directors or Officers and any other person regarding election as a Director
or Officer of the Company.
Each of the Company's Officers has served in various capacities with
the Company for more than five years, except Messrs. Kline, Tishler, Merrick,
Woodbury and Tremallo.
Mr. Kline joined the Company in June 1996. From 1995 to 1996, he served
as Senior Vice President, Chief Financial Officer of CrossComm Corp., a
manufacturer of networking products. From 1994 to 1995, he was President of TAR
Acquisition Corp., a private investment company. From 1990 to 1994, Mr. Kline
was Senior Vice President, Chief Financial Officer for Cabot Safety Corporation,
a subsidiary of Cabot Corporation. Prior to that, he served at Leggett & Platt,
Incorporated and was a partner with Arthur Young & Company.
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Mr. Merrick joined the Company in September 1994. From 1990 to 1994, he
served as Executive Vice President of Worldwide Sales and Marketing at Ampex
Systems Corp., a supplier of professional video, broadcasting, and recording
products.
Mr. Tishler joined Dynatech in September 1994. From 1988 to 1994, he
was Vice President of Raytheon Ventures, the venture capital portfolio of
Raytheon Co. From 1977 to 1986, he served as Vice President of ADL Enterprises,
a wholly owned subsidiary of Arthur D. Little, Inc. From 1970 to 1977, Mr.
Tishler was President of Harnessed Energies, Inc., a manufacturer of scientific
instrumentation.
Mr. Woodbury joined the Company in January 1996. From 1992 to January
1996, he served as Vice President and Controller for Kollmorgen Corporation, a
manufacturer of motion control devices. From 1990 to 1992, he was Chief
Financial Officer of Kidde Fenwal, Inc., a manufacturer of fire suppression
equipment.
Mr. Tremallo joined the Company in May 1997. From 1995 to 1997 he
served as Vice President, General Counsel and Secretary of Aearo Corporation
(formerly Cabot Safety Corporation), a manufacturer of industrial safety
products. From 1990 to 1995 he was General Counsel of Cabot Safety Corporation,
a subsidiary of Cabot Corporation.
ITEM 2. PROPERTIES.
The Company's policy is generally to lease real property for its
manufacturing and sales operations. Principal operating facilities for
continuing operations are as follows:
Leased Facilities:
<TABLE>
<CAPTION>
Location Square Feet Lease Termination
- -------- ----------- -----------------
<S> <C> <C>
Burlington, Massachusetts 22,200 1998
Germantown, Maryland 30,000 2006
Germantown, Maryland 68,000 2001
Germantown, Maryland 98,000 2003
Lombard, Illinois 23,300 1998
Northampton, Massachusetts 22,500 1999
Tustin, California 24,300 1999
Salem, Virginia 35,900 2004
San Diego, California 72,860 1999
Spokane, Washington 66,400 1999
</TABLE>
The Company has other leases for continuing operations manufacturing
space and sales offices, but in each case the total footage is under 15,000
square feet.
The Company has approximately 311,000 square feet in various leased
facilities in discontinued operations.
ITEM 3. LEGAL PROCEEDINGS.
The Company is party to several pending legal proceedings and claims,
none of which, in the opinion of management or counsel primarily responsible for
such matters, is considered to be material.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
None
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PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON STOCK AND RELATED SECURITY HOLDER
MATTERS.
On January 28, 1997, the Company's common stock began trading on the
New York Stock Exchange under the symbol "DYT." Prior to this date, the
Company's common stock was quoted on the Nasdaq National Market.
The following tables set forth the quarterly high and low sale prices
per share of the Company's Common Stock for the past two years as reported by
the New York Stock Exchange, the Nasdaq National Market and as published in the
WALL STREET JOURNAL.
<TABLE>
<CAPTION>
Fiscal Year Ended
March 31, 1997 High Low
----------------- ------ ------
<S> <C> <C>
First Quarter $35.00 $23.00
Second Quarter $46.88 $30.75
Third Quarter $58.00 $40.50
Fourth Quarter $54.50 $28.00
<CAPTION>
Fiscal Year Ended
March 31, 1996 High Low
----------------- ------ ------
<S> <C> <C>
First Quarter $20.50 $14.75
Second Quarter $22.25 $15.13
Third Quarter $17.50 $14.00
Fourth Quarter $25.50 $16.00
</TABLE>
There were approximately 959 common stockholders of record as of June
6, 1997.
The Company has never paid a cash dividend on its Common Stock and does
not intend to make such a payment in the foreseeable future.
ITEM 6. SELECTED FINANCIAL DATA.
The information requested by this Item is attached as Appendix A.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS.
The information requested by this Item is attached as Appendix B.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The information requested by this Item is attached as Appendix C.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE.
None
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PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
Reference is made to the information responsive to Items 401 and 405 of
Regulation S-K contained in the Company's definitive Proxy Statement relating to
its 1997 Annual Meeting of Shareholders which will be filed with the U.S.
Securities and Exchange Commission within 120 days after the close of the
Company's fiscal year ended March 31, 1997 pursuant to Rule 14a-6(b) under the
Securities and Exchange Act of 1934, as amended; said information is
incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION.
Reference is made to the information responsive to Item 402 of
Regulation S-K contained in the Company's definitive Proxy Statement relating to
its 1997 Annual Meeting of Shareholders which will be filed with the U.S.
Securities and Exchange Commission within 120 days after the close of the
Company's fiscal year ended March 31, 1997 pursuant to Rule 14a-6(b) under the
Securities Exchange Act of 1934, as amended; said information is incorporated
herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT.
Reference is made to the information responsive to Item 403 of
Regulation S-K contained in the Company's definitive Proxy Statement relating to
its 1997 Annual Meeting of Shareholders which will be filed with the U.S.
Securities and Exchange Commission within 120 days after the close of the
Company's fiscal year ended March 31, 1997 pursuant to Rule 14a-6(b) under the
Securities Exchange Act of 1934, as amended; said information is incorporated
herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
Reference is made to the information responsive to Item 404 of
Regulation S-K contained in the Company's definitive Proxy Statement relating to
its 1997 Annual Meeting of Shareholders which will be filed with the U.S.
Securities and Exchange Commission within 120 days after the close of the
Company's fiscal year ended March 31, 1997 pursuant to Rule 14a-6(b) under the
Securities Exchange Act of 1934, as amended; said information is incorporated
herein by reference.
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PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES AND REPORTS ON FORM 8-K.
(a) Documents filed as part of this report
(1) Financial statements
I. Consolidated Balance Sheets - March 31, 1997
and 1996.
II. Consolidated Statement of Operations -
Fiscal Years ended March 31, 1997, 1996 and
1995.
III. Consolidated Statements of Shareholders'
Equity - Fiscal Years Ended March 31, 1997,
1996 and 1995.
IV. Consolidated Statements of Cash Flows -
Fiscal Years ended March 31, 1997, 1996 and
1995.
V. Notes to Consolidated Financial Statements.
(2) Financial statement schedules
I. Valuation and Qualifying Accounts.
Schedules other than those listed above have been omitted because they are
either not required or not applicable or because the required information has
been included elsewhere in the financial statements or notes thereto.
(b) Reports on Form 8-K
(1) A Form 8-K dated March 21, 1997 was filed by the Company
concerning the sale of the assets of Computerized Medical Systems,
Inc.
(2) A Form 8-K dated December 31, 1996, as amended on Form 8K/A, was
filed by the Company concerning the acquisition of the assets of
Itronix Corporation, previously a wholly owned subsidiary of
Telxon Corporation.
(3) A Form 8-K dated October 21, 1996 was filed by the Company
concerning the sale of the assets of Unex Corporation.
(c) Exhibits
The exhibits that are filed with this report or that are incorporated
herein by reference are set forth in the Exhibit Index on page E-1.
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REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Shareholders of Dynatech Corporation:
Our report on the consolidated financial statements of Dynatech
Corporation has been incorporated by reference in this Form 10-K from the 1997
Annual Report to Shareholders of Dynatech Corporation. In connection with our
audits of such financial statements, we have also audited the related financial
statement schedule listed in the index on page 11 of this Form 10-K.
In our opinion, the financial statement schedule referred to above,
when considered in relation to the basic financial statements taken as a whole,
presents fairly, in all material respects, the information required to be
included therein.
/s/ Coopers & Lybrand L.L.P.
Boston, Massachusetts
May 1, 1997
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APPENDIX A
FIVE-YEAR SUMMARY
(Amounts in thousands except per share data)
<TABLE>
<CAPTION>
YEARS ENDED MARCH 31
1997 1996 1995 1994 1993
- --------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
RESULTS OF OPERATIONS
Sales $362,412 $293,042 $243,078 $199,612 $190,000
Cost of sales 137,254 111,436 91,412 72,103 65,738
-------- -------- -------- -------- --------
Gross profit 225,158 181,606 151,666 127,509 124,262
Selling, general &
administrative expense 114,479 98,487 86,329 70,719 73,704
Product development expense 43,267 36,456 30,585 26,863 23,691
Nonrecurring charges 27,776 16,852 -- -- --
Amortization of intangibles 6,793 5,136 5,106 5,728 5,087
-------- -------- -------- -------- --------
Operating income 32,843 24,675 29,646 24,199 21,780
Interest expense (828) (1,723) (3,919) (3,794) (2,229)
Interest income 2,785 2,181 1,518 1,244 1,592
Other income, net 634 975 850 2,198 77
-------- -------- -------- -------- --------
Income from continuing operations
before income taxes 35,434 26,108 28,095 23,847 21,220
Provision for income taxes 17,585 10,394 11,671 9,897 9,231
-------- -------- -------- -------- --------
Income from continuing
operations 17,849 15,714 16,424 13,950 11,989
Discontinued operations, net of
income taxes 12,000 (1,471) 3,763 (43,933) 4,446
Extraordinary charge, net of
income taxes -- -- (1,019) -- --
-------- -------- -------- -------- --------
Net income (loss) $ 29,849 $ 14,243 $ 19,168 $(29,983) $ 16,435
======== ======== ======== ======== ========
Income (loss) per common share
Continuing operations $ 0.99 $ 0.86 $ 0.92 $ 0.75 $ 0.65
Discontinued operations 0.67 (0.08) 0.21 (2.36) 0.25
Extraordinary charge -- -- (0.06) -- --
-------- -------- -------- -------- --------
$ 1.66 $ 0.78 $ 1.07 $ (1.61) $ 0.90
======== ======== ======== ======== ========
BALANCE SHEET DATA
Net working capital $ 80,394 $105,861 $ 91,513 $ 91,010 $118,509
Total assets $250,035 $205,189 $256,392 $280,553 $303,023
Long-term debt $ 5,226 $ 1,800 $ 7,915 $ 33,006 $ 50,873
Shareholders' equity $160,686 $160,719 $154,320 $142,643 $171,904
Shares of stock outstanding 16,793 17,585 17,573 18,594 18,506
Shareholders' equity per share $ 9.57 $ 9.14 $ 8.78 $ 7.67 $ 9.29
</TABLE>
13
<PAGE> 14
APPENDIX B
Management's Discussion and Analysis of Financial Condition and Results of
Operations
This annual report contains forward-looking statements which involve risks and
uncertainties. The Company's actual results may differ significantly from the
results discussed in the forward-looking statements. Factors that might cause
such a difference include, but are not limited to, product demand and market
acceptance risks, the effect of economic conditions, the impact of competitive
products and pricing, product development, commercialization and technological
difficulties, capacity and supply constraints or difficulties, availability of
capital resources, general business and economic conditions, the effect of the
Company's accounting policies, and other risks detailed below and in the
Company's Securities and Exchange Commission filings.
BUSINESS: Dynatech is a global communications equipment company focused on
network technology solutions. Its products address communications test,
industrial computing and communications, and visual communications applications.
<TABLE>
The following table and commentary should be read in conjunction with the
Consolidated Financial Statements and related Notes to Consolidated Financial
Statements.
<CAPTION>
PERCENT OF SALES PERCENT OF CHANGE
1997 1996 1995
VS. VS. VS.
YEARS ENDED MARCH 31, 1997 1996 1995 1996 1995 1994
- -----------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Sales 100.0% 100.0% 100.0% 23.7% 20.5% 21.8%
Gross profit 62.1 62.0 62.4 24.0 19.7 18.9
Selling, general & administrative expense 31.6 33.6 35.5 16.2 14.1 22.1
Product development expense 11.9 12.4 12.6 18.7 19.2 13.9
Nonrecurring charges 7.7 5.8 -- 64.8 100.0 --
Amortization of intangibles 1.9 1.8 2.1 32.3 0.6 (10.9)
Operating income 9.1 8.4 12.2 33.1 (16.8) 22.5
Income from continuing operations 4.9 5.4 6.7 13.6 (4.3) 17.7
</TABLE>
On December 31, 1996 the Company acquired the assets and assumed certain
liabilities of Itronix Corporation ("Itronix"), located in Spokane, Washington,
for $65.4 million in cash. Incident to this acquisition was the purchase of
incomplete technology activities which resulted in a one-time pretax charge of
$20.6 million. This incomplete technology had not reached technological
feasibility and had no alternative use. Itronix is a manufacturer of mobile
computing and communications devices, including ruggedized industrial laptop
computers, which increase the efficiency of large, mission-critical service
groups.
14
<PAGE> 15
In March 1997 the Company acquired the net assets of Advent Design, Inc.
("Advent") for $3.5 million in cash. Advent designs and manufactures high
performance microprocessor-based systems for the computer, medical and
communications markets.
During fiscal 1997 the Company essentially completed the disposition of its
noncore businesses, a strategy approved by the Board of Directors in February
1996. The Company received proceeds of $110.2 million and $48.9 million in 1997
and 1996, respectively, related to these dispositions, which resulted in an
aftertax gain of $12.0 million or $0.67 per share.
FISCAL 1997 COMPARED TO FISCAL 1996
SALES: For the year ended March 31, 1997, consolidated sales from continuing
operations increased 23.7%, to $362.4 million from $293.0 million in fiscal
1996. Sales of communications test products increased 22.8%, or $39.3 million
due to increased demand for existing products and a full year of operating
results for two acquisitions made in fiscal 1996. Sales of industrial computing
and communications products increased 35.3%, or $20.4 million primarily driven
by revenue at Itronix. Sales of visual communications products increased 15.3%,
or $9.7 million principally due to continued strength in aircraft passenger
video information systems and color correction products.
Backlog from ongoing operations was $71.7 million at March 31, 1997, as compared
to $57.3 million at March 31, 1996.
International sales were 20% of consolidated sales in fiscal 1997, an increase
of 18% over consolidated sales in fiscal 1996.
GROSS PROFIT: As a percentage of consolidated sales, gross profit from
continuing operations for fiscal 1997 was 62.1%, essentially at the same level
as the prior year.
EXPENSES: Selling, general and administrative costs increased 16.2% in fiscal
1997 as compared to fiscal 1996. As a percentage of consolidated sales, selling,
general and administrative expenses decreased to 31.6% as compared to 33.6% in
the previous year. Administrative and selling expenses increased at a rate
slower than revenue growth in the communications test products as a result of
the fiscal 1996 acquisitions.
Product development expense increased $6.8 million to 11.9% of consolidated
sales, compared to 12.4% of sales in fiscal 1996. The increase was a result of
additional investment in developing core communications test products as well as
the full year effect of product development at Tele-Path Industries, Inc.
("TPI"), a subsidiary which was purchased in September 1995. Additional expense
was incurred due to the acquisition of Itronix.
Amortization of intangibles increased $1.7 million as a result of the
acquisitions in fiscal 1997 and fiscal 1996.
15
<PAGE> 16
During fiscal 1997 nonrecurring charges were $27.8 million as compared to $16.9
million in 1996. The 1997 charges included $20.6 million for incomplete
technology which had not reached technological feasibility and had no
alternative use, purchased as part of the acquisition of Itronix at the end of
the third quarter. In addition, the Company recorded a noncash charge of $7.1
million related to the impairment of intangible assets, principally related to
the effects of product and distribution transitions. The charge consisted of a
$4.5 million writeoff of goodwill and a $2.6 million writeoff in product
technology.
Interest expense declined in fiscal 1997 compared to the prior year as a result
of lower average borrowings. Interest income increased in fiscal 1997 primarily
from higher average cash balances during the year.
TAXES: The effective tax rate, before one-time charges, increased in fiscal 1997
to 40.5% as compared to 39.8% in fiscal 1996, primarily due to losses generated
in foreign locations without tax benefit. The effective tax rate after one-time
charges increased to 49.6% due to limited tax benefits of these charges. These
charges included $20.6 million of incomplete technology from the Itronix
acquisition which resulted only in a federal tax savings. In addition, the
majority of the $7.1 million of intangibles written off represented goodwill
which was not deductible for tax purposes.
NET INCOME: Net income from continuing operations in fiscal 1997 was $17.8
million, or $0.99 per share, as compared to $0.86 per share in fiscal 1996. Net
income in the current year included a pretax charge of $27.8 million for
purchased incomplete technology and impaired intangible asset writeoffs with an
aftertax effect on earnings per share of ($1.10). Net income for the prior year
included a charge for of incomplete purchased technology that accounted for
$16.9 million with an aftertax effect on earnings per share of ($0.56).
FISCAL 1996 COMPARED TO FISCAL 1995
SALES: Consolidated sales from continuing operations increased 20.5% to $293.0
million from $243.1 million in fiscal 1995 as a result of increased revenue of
24.6% in domestic and 7.1% in international sales including export sales.
Sales of communications test products rose 20% due to increased demand for
existing products and increased volume generated by two acquisitions during the
year. The new acquisitions generated $16.6 million in additional revenue during
fiscal 1996. Sales of industrial computing and communications products rose 29%
driven by strong demand for these products in a broad range of markets.
Backlog from ongoing operations was $57.3 million at March 31, 1996 as compared
to $40.3 million at March 31, 1995.
16
<PAGE> 17
GROSS PROFIT: Consolidated gross profit from continuing operations for fiscal
1996 was 62.0% compared to 62.4% for the prior year. The slight reduction was
primarily driven by increased sales of industrial computing and communications
products which have a lower gross margin than the consolidated average.
EXPENSES: As a percentage of consolidated sales, selling, general and
administrative expenses decreased to 33.6% as compared to 35.5% in the previous
year. General and administrative costs increased at a rate slower than revenue
growth, primarily due to the increased revenues generated from new acquisitions.
Product development expense was 12.4% of sales in fiscal 1996, down slightly
from 12.6% in fiscal 1995 primarily due to relatively low development expenses
within newly acquired businesses. Amortization of intangibles remained
relatively unchanged. Decreases of amortization on existing businesses were
offset with the amortization costs associated with current year acquisitions.
During fiscal 1996 the Company purchased incomplete technology activities of
TPI, resulting in a pretax charge to operations of $16.9 million. This
incomplete technology had not reached technological feasibility and had no
alternative use.
Interest expense declined compared to the prior year as a result of
repayment of debt. Interest income increased primarily from higher average cash
balances during the course of the year.
TAXES: The effective tax rate declined in fiscal 1996 to 39.8% compared to 41.5%
as a result of the resolution of certain prior year tax rebates and utilization
of certain foreign loss carry forwards.
EXTRAORDINARY CHARGE: In February 1995 the Company recorded an extraordinary
charge of $1.7 million ($1.0 million, net of taxes), reflecting a payment
penalty for early debt redemption of its $30 million 10.15% term notes.
NET INCOME: Net income from continuing operations for fiscal 1996 was $15.7
million or $0.86 per share, as compared to $0.92 per share in fiscal 1995. Net
income in fiscal 1996 included a charge for incomplete purchased technology of
$16.9 million with an aftertax effect on earnings per share of ($0.56).
CAPITAL RESOURCES AND LIQUIDITY
The Company's consolidated cash and cash equivalents decreased by $6.3 million
during fiscal 1997. Cash provided from operations was $7.5 million, while $17.1
million was provided by investing activities and $28.5 million was used for
financing activities. The effect of exchange rates was a use of cash of $2.5
million.
The Company's investing activities in fiscal 1997 included expenditures of $10.2
million for property and equipment, primarily for the replacement of existing
equipment. In addition, the Company purchased Itronix for $65.4 million in cash
on December 31, 1996 and Advent for $3.5 million in cash in March 1997. Proceeds
from sale of businesses held for sale were $96.7 million
17
<PAGE> 18
in cash, $7.2 million in long-term promissory notes, and Class A Preferred Stock
of CMSI Holdings Corporation with an aggregate liquidation preference of $6.3
million.
The Company's financing activities used $28.5 million of cash during the year.
The Company repurchased 1 million shares of stock during fiscal 1997 for an
aggregate of $32.7 million use of cash. The Company has 1.2 million shares left
available for repurchase, as authorized by its Board of Directors. Net
borrowings under existing lines of credit increased $2.5 million over fiscal
1996.
In April 1997 the Company entered into a new agreement with several commercial
banks which increased its borrowing capacity from $70 million to $150 million.
This agreement allows for borrowings using various instruments with interest
payable at Eurodollar rate plus an applicable margin based on the Company's
leverage ratio or base rate. Under the terms of this agreement, the outstanding
principal borrowings may convert to a term loan beginning June 30, 2000.
Inflation rates were moderate during fiscal 1997 and did not have a major impact
on operations.
Capital spending for fiscal 1998 is expected to be at approximately the same
level as 1997. The Company believes that with the cash generated from operations
and with its current and future borrowing capacity it will be able to finance
its 1998 capital expenditures, working capital requirements, and potential
acquisitions.
NEW PRONOUNCEMENTS
The Financial Accounting Standards Board issued Statement No. 128 ("FAS128"),
"Earnings per Share," which modifies the way in which earnings per share (EPS)
is calculated and disclosed. Currently, the Company discloses primary and fully
diluted EPS. Upon adoption of this standard for the interim period ending
December 31, 1997, the Company will disclose basic and diluted EPS and will
restate all prior period EPS data presented. The Company does not anticipate
this change will have a material impact on the calculation of EPS.
18
<PAGE> 19
APPENDIX C
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
Assets
(Amounts in thousands except share data)
MARCH 31
1997 1996
- --------------------------------------------------------------------------------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 39,782 $ 46,094
Accounts receivable
(net of allowance of $1,872 and $957, respectively) 70,930 45,367
Inventories:
Raw materials 19,423 10,210
Work in process 11,376 9,381
Finished goods 9,326 7,325
-------- --------
Total inventory 40,125 26,916
Other current assets 11,074 5,981
Net assets of discontinued operations held for sale -- 22,824
-------- --------
Total current assets 161,911 147,182
Property and equipment:
Land, building and leasehold improvements 4,141 2,468
Machinery and equipment 47,020 39,441
Furniture and fixtures 9,940 6,680
-------- --------
61,101 48,589
Less accumulated depreciation and amortization (37,268) (30,038)
-------- --------
23,833 18,551
Other assets:
Intangible assets, net 43,813 28,406
Other 20,478 11,050
-------- --------
$250,035 $205,189
======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
19
<PAGE> 20
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
Liabilities and Shareholders' Equity
(Amounts in thousands except share data)
MARCH 31
1997 1996
- -----------------------------------------------------------------------------
<S> <C> <C>
Current liabilities:
Notes payable and current portion of long-term debt $ 201 $ 655
Accounts payable 16,900 9,849
Accrued expenses:
Compensation and benefits 23,912 16,120
Taxes, other than income taxes 1,850 834
Deferred revenue 8,876 3,424
Other 19,948 9,500
Accrued income taxes 657 939
Net liabilities of discontinued operations 9,173 --
-------- --------
Total current liabilities 81,517 41,321
Long-term debt 5,226 1,800
Deferred income taxes 1,025 531
Deferred compensation 1,581 818
Commitments and contingencies
Shareholders' equity:
Serial preference stock, par value $1 per share;
authorized 100,000 shares; none issued
Common stock, par value $0.20 per share;
authorized 50,000,000 shares; issued 18,605,689 3,721 3,721
Additional paid-in-capital 9,887 12,102
Retained earnings 195,506 165,657
Cumulative translation adjustments (1,247) 342
Treasury stock, at cost; 1,812,287 and 1,020,605
shares, respectively (47,181) (21,103)
-------- --------
Total shareholders' equity 160,686 160,719
-------- --------
$250,035 $205,189
======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
20
<PAGE> 21
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
(Amounts in thousands except per share data) YEARS ENDED MARCH 31
1997 1996 1995
- ------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Sales $362,412 $293,042 $243,078
Cost of sales 137,254 111,436 91,412
-------- -------- --------
Gross profit 225,158 181,606 151,666
Selling, general and administrative expense 114,479 98,487 86,329
Product development expense 43,267 36,456 30,585
Nonrecurring charges 27,776 16,852 --
Amortization of intangibles 6,793 5,136 5,106
-------- -------- --------
Operating income 32,843 24,675 29,646
Interest expense (828) (1,723) (3,919)
Interest income 2,785 2,181 1,518
Other income, net 634 975 850
-------- -------- --------
Income from continuing operations before income taxes 35,434 26,108 28,095
Provision for income taxes 17,585 10,394 11,671
-------- -------- --------
Income from continuing operations 17,849 15,714 16,424
Discontinued operations:
Gain on sale of businesses net of income tax
provision of $22,692 12,000 -- --
Operating income (loss), net of income tax provision
(benefit) of $(1,009) in 1996 and $2,948 in 1995 -- (1,471) 3,763
-------- -------- --------
Income before extraordinary charge 29,849 14,243 20,187
Extraordinary charge for early retirement of debt, net
of income tax benefit of $738 -- -- (1,019)
-------- -------- --------
Net income $ 29,849 $ 14,243 $ 19,168
======== ======== ========
Income (loss) per common share:
Continuing operations $ 0.99 $ 0.86 $ 0.92
Discontinued operations 0.67 (0.08) 0.21
Extraordinary charge -- -- (0.06)
-------- -------- --------
$ 1.66 $ 0.78 $ 1.07
======== ======== ========
Weighted average number of common shares 18,028 18,315 17,846
======== ======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
21
<PAGE> 22
<TABLE>
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
(Amounts in thousands)
<CAPTION>
Number of Shares Additional Cumulative Total
Common Treasury Common Paid-In Retained Translation Treasury Shareholders'
Stock Stock Stock Capital Earnings Adjustments Stock Equity
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Balance, March 31, 1994 12,387 (3,090) $2,477 $ 9,414 $185,957 $ (757) $(54,448) $142,643
Net income - 1995 19,168 19,168
Purchases of treasury stock (597) (12,576) (12,576)
Translation adjustments 3,416 3,416
Exercise of stock options and
other issuances 90 (215) 1,790 1,575
Retirement of treasury stock (3,085) 3,085 (617) (53,711) 54,328 --
Two-for-one stock split 9,303 (521) 1,861 (1,861) --
Tax benefit from exercise
of stock options 94 94
------ ------ ------ ------- -------- ------- -------- --------
Balance, March 31, 1995 18,605 (1,033) 3,721 7,432 151,414 2,659 (10,906) 154,320
Net income - 1996 14,243 14,243
Purchases of treasury stock (800) (19,367) (19,367)
Translation adjustments (2,317) (2,317)
Exercise of stock options and
other issuances 812 3,688 9,170 12,858
Tax benefit from exercise
of stock options 982 982
------ ------ ------ ------- -------- ------- -------- --------
Balance, March 31, 1996 18,605 (1,021) 3,721 12,102 165,657 342 (21,103) 160,719
Net income - 1997 29,849 29,849
Purchases of treasury stock (1,021) (32,695) (32,695)
Translation adjustments (1,589) (1,589)
Exercise of stock options and
other issuances 230 (3,533) 6,617 3,084
Tax benefit from exercise
of stock options 1,318 1,318
------ ------ ------ ------- -------- ------- -------- --------
Balance, March 31, 1997 18,605 (1,812) $3,721 $ 9,887 $195,506 $(1,247) $(47,181) $160,686
====== ====== ====== ======= ======== ======= ======== ========
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
22
<PAGE> 23
<TABLE>
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Amounts in thousands)
<CAPTION>
YEARS ENDED MARCH 31,
1997 1996 1995
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Operating activities:
Net income from operations $ 29,849 $ 15,714 $ 20,187
Adjustment for noncash items included in net income:
Gain on discontinued operations (12,000) -- --
Depreciation 9,280 8,279 14,112
Amortization of intangibles 6,793 5,136 8,471
Purchased incomplete technology 20,627 16,852 --
Intangibles writeoff 7,149 -- --
Change in net deferred income tax asset (7,617) (5,173) 7,187
Other 797 457 283
Changes in operating assets and liabilities, net of effects of
purchase acquisitions and divestitures 4,926 (19,556) (16,013)
-------- -------- --------
Net cash provided by continuing operations 59,804 21,709 34,227
Net cash provided by (used in) discontinued operations (52,313) 699 (3,250)
-------- -------- --------
Net cash flows provided by operating activities 7,491 22,408 30,977
Investing activities:
Purchases of property and equipment (10,176) (8,198) (16,426)
Disposals of property and equipment 214 308 437
Proceeds from sales of businesses 96,682 48,901 27,140
Businesses acquired in purchase transactions, net of cash acquired (68,930) (17,143) (1,056)
Other 290 5,597 (1,095)
-------- -------- --------
Net cash flows provided by continuing operations 18,080 29,465 9,000
Net cash flows used in discontinued operations (951) (5,487) --
-------- -------- --------
Net cash flows provided by investing activities 17,129 23,978 9,000
Financing activities:
Net borrowings (repayment) of debt 2,522 (9,400) (24,125)
Premium paid on early retirement of debt -- -- (1,757)
Proceeds from exercise of stock options 1,693 952 1,461
Purchases of treasury stock (32,695) (19,367) (12,576)
-------- -------- --------
Net cash flows used in financing activities (28,480) (27,815) (36,997)
Effect of exchange rate on cash (2,452) (272) 1,714
-------- -------- --------
Increase (decrease) in cash and cash equivalents (6,312) 18,299 4,694
Cash and cash equivalents at beginning of year 46,094 27,795 23,101
-------- -------- --------
Cash and cash equivalents at end of year $ 39,782 $ 46,094 $ 27,795
======== ======== ========
Change in operating asset and liability components:
Increase in trade accounts receivable $(15,833) $(10,287) $ (1,215)
Decrease (increase) in inventories 450 (2,007) (2,820)
Decrease (increase) in other current assets (3,341) (297) 180
Increase (decrease) in accounts payable 2,059 (402) 129
Increase (decrease) in accrued expenses and taxes 21,591 (6,563) (12,287)
-------- -------- --------
Change in operating assets and liabilities $ 4,926 $(19,556) $(16,013)
======== ======== ========
Supplemental disclosures of cash flow information:
Cash paid during the year for:
Interest $ 889 $ 1,739 $ 4,833
Income taxes 42,340 13,798 7,672
Tax benefit of disqualifying dispositions of stock options 1,318 982 94
Noncash proceeds from sale of businesses:
Promissory notes 7,200 -- 5,200
Preferred stock 6,300 -- --
</TABLE>
The accompanying notes are an integral part of the consolidated financial
statements.
23
<PAGE> 24
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
BUSINESS: Dynatech is a global communications equipment company focused on
network technology solutions. Its products address communications test,
industrial computing and communications, and visual communications applications.
PRINCIPLES OF CONSOLIDATION: The consolidated financial statements include the
accounts of the parent company and its wholly owned domestic and international
subsidiaries. Intercompany accounts and transactions have been eliminated.
Certain prior year amounts have been reclassified to conform with the current
year.
USE OF ESTIMATES: The preparation of financial statements in conformity with
generally accepted accounting principles requires management to make certain
estimates and assumptions that affect the reported amount of assets and
liabilities and disclosure of contingent assets and liabilities at the date of
the financial statements and the reported amounts of revenues and expenses
during the reported period. Significant estimates in these financial statements
include allowances for accounts receivable, net realizable value of inventories,
tax valuation reserves, nonrecurring charges, and the carrying values of
discontinued operations. Actual results could differ from those estimates.
FOREIGN EXCHANGE CONTRACTS: The Company enters into a limited number of forward
exchange contracts to manage the exposure to foreign currency fluctuations
associated with certain monetary assets and liabilities denominated in a foreign
currency, as well as certain highly anticipated cash flows or firm commitments.
Gains and losses on these contracts will be included in income when the
operating revenue and expenses related to the underlying transactions are
recognized. Amounts as of March 31, 1997 and 1996 were $0 and $1.0 million,
respectively.
CASH EQUIVALENTS: Cash equivalents represent highly liquid debt instruments with
a maturity of three months or less at the time of purchase. Financial
instruments, which potentially subject the Company to concentrations of credit
risk, consist primarily of short-term deposits in Europe with major banks, with
investment levels and debt ratings set to limit exposure from any one
institution.
INVENTORIES: Inventories are stated at the lower of cost (first-in, first-out or
average) or market.
PROPERTY AND EQUIPMENT: Property and equipment are carried at cost and include
expenditures for major improvements which substantially increase their useful
life. Repairs and maintenance are expensed as incurred. When assets are retired
or otherwise disposed of, the assets and related allowances for depreciation and
amortization are eliminated from the accounts and any resulting gain or loss is
recognized in the Statement of Operations.
DEPRECIATION AND AMORTIZATION: For financial reporting purposes, depreciation of
machinery, equipment, and fixtures is computed on the straight-line method over
estimated useful lives of
24
<PAGE> 25
two to ten years. Leasehold improvements are amortized over the lesser of the
lives of the leases or estimated useful lives of the improvements. Buildings are
depreciated on the straight-line method over the estimated useful lives, up to
30 years.
<TABLE>
INTANGIBLE ASSETS: Intangible assets acquired primarily from business
acquisitions are summarized as follows:
<CAPTION>
Amounts in thousands 1997 1996
- -------------------------------------------------------------------------
<S> <C> <C>
Product technology $17,042 $18,259
Excess of cost over net assets acquired 30,861 17,424
Other intangible assets 13,307 13,307
-------------------------
61,210 48,990
Less accumulated amortization 17,397 20,584
-------------------------
Total $43,813 $28,406
=========================
</TABLE>
At each balance sheet date, management evaluates whether there has been a
permanent impairment in the value of goodwill or intangible assets by assessing
the carrying value of the asset against the anticipated future cash flows from
related operating activities. Factors which management considers in performing
this assessment include current operating results, trends, product transition,
distribution channels and prospects, and, in addition, demand, competition, and
other economic factors. In March 1997, the Company recorded a $7.1 million
charge related to product and distribution transitions.
Product technology and other intangible assets are amortized on a straight-line
basis primarily over three to ten years, but in no event longer than their
expected useful lives. Amortization expense related to product technology was
$3.1 million in fiscal 1997, $1.9 million in fiscal 1996, and $1.6 million in
fiscal 1995, and was excluded from cost of sales. Excess of cost over fair
market value of net assets is being amortized on a straight-line basis
primarily over 15 years.
FOREIGN CURRENCY TRANSLATION: The functional currency for the majority of the
Company's foreign operations is the applicable local currency. The translation
from the applicable foreign currencies to U.S. dollars is performed for balance
sheet accounts using the exchange rates in effect at the balance sheet date and
for revenue and expense accounts using a weighted average exchange rate during
the period. The gains or losses resulting from such translation are included in
shareholders' equity. Gains or losses resulting from foreign currency
transactions are included in other income.
TREASURY STOCK: The Company delivers treasury shares upon the exercise of stock
options and the difference between the cost of the treasury shares, on a
last-in, first-out basis, and the exercise price of the option is reflected in
additional paid-in capital. Repurchase of treasury stock is accounted for by
using the cost method of accounting.
REVENUE RECOGNITION: Sales of products and services are recorded based on
product shipment and performance of service, respectively. Proceeds received in
advance of product shipment or performance of service are recorded as deferred
revenue in the balance sheet.
25
<PAGE> 26
RESEARCH, DEVELOPMENT AND WARRANTY COSTS: Costs relating to research,
development and product warranty are expensed as incurred. Warranty costs are
not material to the consolidated financial statements. Internal software
development costs that qualify for capitalization are not material.
INCOME TAXES: The Company provides for income taxes in accordance with Statement
of Financial Accounting Standard No. 109, "Accounting for Income Taxes." Under
this method, deferred tax assets and liabilities are determined based on the
differences between the financial reporting and tax basis of assets and
liabilities and are measured using the enacted tax rates and laws that will be
in effect when the differences are expected to reverse.
INCOME PER SHARE: Income per share is based on income divided by the weighted
average number of common shares and common share equivalents outstanding
including the effect of the deferred stock compensation for directors. Fully
diluted income per share is not materially different from reported primary
earnings per share for all periods.
NEW PRONOUNCEMENTS: The Financial Accounting Standards Board issued Statement
No. 128 ("FAS128"), "Earnings per Share," which modifies the way in which
earnings per share (EPS) is calculated and disclosed. Currently, the Company
discloses primary and fully diluted EPS. Upon adoption of this standard for the
interim period ending December 31, 1997, the Company will disclose basic and
diluted EPS for fiscal 1998 and will restate all prior period EPS data
presented. The Company does not anticipate this change will have a material
impact on the calculation of EPS.
DISCONTINUED OPERATIONS
A formal plan to discontinue noncore businesses was approved by the Board of
Directors on February 7, 1996. In fiscal 1997, the Company essentially completed
its disposition of the noncore businesses. Proceeds from these sales in fiscal
1997 and 1996 were $96.7 million in cash, $7.2 million in long-term promissory
notes, and Class A Preferred Stock of CMSI Holdings Corporation with an
aggregate liquidation preference of $6.3 million, and $48.9 million in cash,
respectively, which resulted in an aftertax gain of $12 million or $0.67 per
share.
In connection with the sale of one of its subsidiaries, the Company agreed to
guarantee the purchaser's payment obligations under a credit facility obtained
by the purchaser. The guaranteed portion of the principal amount of this
facility is $3 million for a period of seven years from the closing date and is
to be used to fund the purchaser's capital expenditures.
During fiscal 1995 the Corporation sold ten businesses for approximately $27.1
million in cash and long-term promissory notes approximating $5.2 million. The
provision for losses was reflected in fiscal 1994 and did not affect fiscal 1995
earnings.
26
<PAGE> 27
<TABLE>
Summary operating results of noncore businesses prior to the formal plan to
discontinue operations are as follows:
<CAPTION>
Amounts in thousands 1996 1995
- -------------------------------------------------------------------------------
<S> <C> <C>
Sales $182,040 $256,452
Gross margin 79,571 109,563
Income (loss) before taxes (3,460) 6,711
Net income (loss) $ (1,471) $ 3,763
</TABLE>
In connection with the disposition of these subsidiaries, the Company has net
liabilities of $9.2 million. Included in this amount are liabilities related to
severance, legal, lease runout, taxes and warranty accruals offset by noncash
investments.
NOTES PAYABLE
Short-term notes payable, primarily in Europe, were $0 and $640 thousand at
March 31, 1997 and 1996, respectively. The maximum amount of short-term
borrowings, domestic and foreign, at any month end during the year was $330
thousand in fiscal 1997, $1.1 million in 1996, and $4.4 million in 1995. The
average amount of short-term borrowings during the year was $186 thousand in
fiscal 1997, $886 thousand in 1996, and $3.4 million in 1995. The approximate
weighted average interest rate was 6.2% in fiscal 1997, 6.6% in 1996, and 6.2%
in 1995 (calculated by dividing interest expense for such borrowings by the
weighted average borrowings outstanding during the year).
At year end, the Company had short-term unused lines of credit aggregating $500
thousand for continuing foreign operations.
LONG-TERM DEBT
<TABLE>
Long-term debt is summarized below:
<CAPTION>
Amounts in thousands 1997 1996
- -----------------------------------------------------------------------------
<S> <C> <C>
Revolving credit and term bank loan $5,000 $1,800
Capital lease obligations 427 15
------------------------
Total debt 5,427 1,815
Less current portion 201 15
------------------------
Long-term debt $5,226 $1,800
========================
</TABLE>
The Company has an unsecured $70 million revolving credit and term bank loan
agreement ("Old Agreement") with several commercial banks which allows for
borrowings in various currencies and provides for interest to be payable at the
Eurocurrency rate, or base or money market rate quoted by the lender, depending
upon the currencies borrowed and the form of
27
<PAGE> 28
borrowing. Under the terms of the Old Agreement, the principal borrowings may
convert to a term loan payable in eight equal quarterly installments beginning
September 30, 1998.
In April 1997, the Company entered into a new $150 million revolving credit and
term loan agreement ("New Agreement") with several commercial banks. This
agreement allows for borrowings using various instruments with interest payable
at Eurodollar rate plus an applicable margin based on the Company's leverage
ratio or base rate, quoted by the lender. Under the terms of the New Agreement,
the principal borrowings may convert to a term loan payable in eight equal
quarterly installments beginning June 30, 2000.
The approximate weighted average cost of capital was 8.6% in both fiscal 1997
and in 1996. The composite rate at March 31, 1997 was 6.9% and at
March 31, 1996 was 5.9%.
The terms of the Old Agreement require, among other things, specific levels of
current ratio, fixed-charge coverage ratio, and minimum tangible net worth.
The Company was in compliance with all covenants at March 31, 1997.
Aggregate maturities of the above term debt for each of the years in the
five-year period ending March 31, 2002 are as follows: $201 thousand, $2.0
million, $2.6 million, $625 thousand, and $0, respectively.
INCOME TAXES
<TABLE>
The components of income (loss) from continuing operations before taxes are as
follows:
<CAPTION>
Amounts in thousands 1997 1996 1995
- ----------------------------------------------------------------------------
<S> <C> <C> <C>
Domestic $38,486 $26,657 $27,771
Foreign (3,052) (549) 324
------- ------- -------
Total $35,434 $26,108 $28,095
======= ======= =======
</TABLE>
<TABLE>
The components of the provision (benefit) for income taxes from continuing
operations are as follows:
<CAPTION>
Amounts in thousands 1997 1996 1995
- ---------------------------------------------------------------------------
<S> <C> <C> <C>
Provision for income taxes:
United States $11,729 $ 9,092 $ 9,552
Foreign 234 (428) 127
State 5,622 1,730 1,992
------------------------------------
Total $17,585 $10,394 $11,671
====================================
</TABLE>
28
<PAGE> 29
<TABLE>
<S> <C> <C> <C>
Components of income tax provision:
Current:
Federal $19,297 $15,247 $10,609
Foreign 234 (423) 112
State 5,671 3,072 2,130
------------------------------------
Total current 25,202 17,896 12,851
Deferred:
Federal (7,568) (6,155) (1,057)
Foreign -- (5) 15
State (49) (1,342) (138)
------------------------------------
Total deferred (7,617) (7,502) (1,180)
------------------------------------
Total $17,585 $10,394 $11,671
====================================
</TABLE>
<TABLE>
Reconciliations between U.S. federal statutory rate and the effective tax rate
of continuing operations follow:
<CAPTION>
1997 1996 1995
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Tax at U.S. federal statutory rate 35.0% 35.0% 35.0%
Increases (reductions) to statutory tax rate resulting from:
Foreign income subject to tax at a rate different than
U.S. rate 0.6 (0.5) 0.4
State income taxes, net of federal income tax benefit 3.8 4.3 4.4
Research and development tax credit (0.7) (0.7) (0.9)
Nondeductible amortization 1.1 1.9 1.8
Other 0.7 (0.2) 0.8
---------------------------
Effective tax rate before certain charges 40.5% 39.8% 41.5%
Nondeductible purchased research and development, 8.2 -- --
Nondeductible writeoff of intangibles 0.9 -- --
---------------------------
Total effective tax rate on continuing operations 49.6% 39.8% 41.5%
===========================
</TABLE>
29
<PAGE> 30
<TABLE>
The principal components of the deferred tax assets and liabilities follow:
<CAPTION>
Amounts in thousands 1997 1996
- ------------------------------------------------------------------------------------------------
<S> <C> <C>
Deferred tax assets:
Net operating loss carryforwards $ 3,291 $ 1,993
Vacation benefits 792 632
Bad debt allowance 364 196
Inventory capitalization 363 347
Depreciation and amortization 16,767 9,283
Other deferred assets 4,434 3,979
------------------
26,011 16,430
Valuation allowance (3,291) (1,993)
------------------
22,720 14,437
Deferred tax liabilities:
Depreciation and amortization 1,025 531
Other deferred liabilities 1,491 1,319
------------------
2,516 1,850
------------------
Net deferred tax assets $20,204 $12,587
==================
Deferred income taxes are included in the following balance sheet accounts:
Amounts in thousands 1997 1996
------------------
Other current assets $ 3,846 $ 3,495
Other assets 17,383 9,623
Deferred income taxes (1,025) (531)
------------------
$20,204 $12,587
==================
</TABLE>
The valuation allowance applies to state and foreign net operating loss
carryforwards that may not be fully utilized by the Company. The increase in the
valuation reserve relates to the increase in these net loss carryforwards.
EMPLOYEE RETIREMENT PLANS
The Company has a trusteed employee retirement profit sharing and 401(k) savings
plan for eligible U.S. employees. The Plan does not provide for stated benefits
upon retirement. Employees outside the U.S. are covered principally by
government-sponsored plans that are deferred contribution plans. The cost of
Company-provided plans is not material.
The Company has a nonqualified deferred compensation plan which permits certain
key employees to annually elect to defer a portion of their compensation for
their retirement. The amount of compensation deferred and related investment
earnings will be placed in an irrevocable rabbi trust and presented as assets in
the Company's balance sheet because they will be available to the general
creditors of the Company in the event of the Company's insolvency. An offsetting
liability will reflect amounts due employees.
30
<PAGE> 31
Corporate contributions to employee retirement plans were $4.0 million in fiscal
1997, $3.3 million in 1996, and $3.0 million in 1995.
STOCK COMPENSATION AND PURCHASE PLANS
The Company maintains two Stock Option plans in which common stock is available
for grant to key employees at prices not less than fair market value (110% of
fair market value for employees holding more than 10% of the outstanding common
stock) at the date of grant determined by the Board of Directors. Incentive or
nonqualified options may be issued under the plans and are exercisable from one
to ten years after grant.
On July 30, 1996 the shareholders adopted the 1996 Employee Stock Purchase Plan
under which eligible employees may contribute up to 10% of their salary toward
semi-annual purchases of the Company's capital stock. The plan commenced October
1, 1996 and each plan period lasts six months beginning on October 1 and April 1
of each year. The purchase price for each share of stock is the lesser of 85% of
the market price on the first or last day of the plan period. A total of 600,000
shares are available for purchase under the plan and 36,536 shares were reserved
for issuance at March 31, 1997.
<TABLE>
A summary of activity in the Company's option plans is as follows:
<CAPTION>
1997 1996 1995
Weighted Weighted Weighted
Average Average Average
1997 Exercise 1996 Exercise 1995 Exercise
Shares Price Shares Price Shares Price
- ---------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Shares under option, beginning of year 1,684,580 $15.17 1,296,720 $12.09 705,806 $10.55
Options granted (at an exercise price of
$32 to $54 in 1997, $15.50 to $20.25 in
1996, $10.375 to $17.50 in 1995) 607,550 34.51 673,700 20.01 927,000 12.68
Options exercised (255,690) 11.99 (126,500) 10.26 (193,920) 9.90
Options canceled (265,880) 17.82 (159,340) 14.44 (142,166) 9.67
--------- --------- ---------
Shares under option, end of year 1,770,560 21.87 1,684,580 15.17 1,296,720 12.09
========= ========= =========
Shares exercisable 300,710 $14.77 261,780 $11.52 163,936 $10.01
</TABLE>
Options available for future grants under the plans were 1.0 million, 1.4
million and 0 at March 31, 1997, 1996, and 1995, respectively.
The fair market value of each option granted during 1997 and 1996 is estimated
on the date of grant using the Black-Scholes option-pricing model with the
following weighted average assumptions: expected volatility of 39%, risk-free
interest rate of 6.59% in 1997 and 6.27% in 1996, expected life of 7 years and a
dividend yield of 0%. The Weighted Average Fair Value of
31
<PAGE> 32
options granted, net of forfeitures, during the years 1997 and 1996 was $18.68
and $10.68, respectively.
<TABLE>
The following table summarizes information about currently outstanding and
exercisable stock options at March 31, 1997:
<CAPTION>
Weighted
Number of Average Weighted
Options Remaining Average
Outstanding Contractual Exercise
Range of Exercise Price at 3/31/97 Life Price
-------------------------------------------------------------------------
<S> <C> <C> <C>
$9.00 - $15.00 533,590 5.86 $10.93
$15.00 - $30.00 638,120 8.12 19.13
$30.00 - $54.00 598,850 9.35 34.53
---------
Total 1,770,560 7.86 $21.87
=========
</TABLE>
<TABLE>
The Company applies ABP Opinion 25 and related interpretations in accounting for
its plans. In October 1995, the Financial Accounting Standards Board issued
Statement of Financial Accounting Standards No. 123, "Accounting for Stock-Based
Compensation" ("FAS123"), which is effective for transactions entered into for
fiscal years that begin after December 15, 1995. FAS123 established a fair
value-based method of accounting for stock-based compensation plans. In adopting
FAS123 in 1997, the Company elected footnote disclosure only. Accordingly, no
compensation cost has been recognized for its stock option plans and its stock
purchase plan under FAS123. Had compensation cost for the Company's stock-based
compensation plans been recorded based on the fair value of awards or grant date
consistent with the method prescribed by FAS123, the Company's net income and
earnings per share would have been changed to the pro forma amounts indicated
below:
<CAPTION>
Amounts in thousands except per share 1997 1996
As Reported Pro Forma As Reported Pro Forma
----------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net income $29,849 $27,863 $14,243 $13,464
Net income per share $ 1.66 $ 1.55 $ 0.78 $ 0.74
</TABLE>
The effect of applying FAS123 in this pro forma disclosure is not indicative of
future amounts. FAS123 does not apply to awards prior to 1995; and additional
awards in future years are anticipated.
32
<PAGE> 33
SHAREHOLDER RIGHTS PLAN
In February 1989 the Board of Directors adopted a Shareholder Rights Plan and
declared a dividend distribution of one Right for each outstanding share of
Dynatech's common stock. The Plan was amended in March 1990. Each Right, when
exercisable, entitles a qualifying shareholder to buy shares of Dynatech junior
participating cumulative preferred stock. The Rights would only become
exercisable (i) ten days after a person has become the beneficial owner of 15%
or more of Dynatech's common stock, or (ii) ten business days after the
commencement of a tender offer that would result in the ownership of 15% or more
of the common stock, or (iii) upon determination by the Board of Directors that
a person who holds 10% or more of Dynatech's common stock intends to, or is
likely to, act in certain specified manners adverse to the interests of Dynatech
and its shareholders.
In the event Dynatech is acquired and is not the surviving corporation in a
merger, or in the event of the acquisition of 50% or more of the assets or
earning power of Dynatech, each Right would then entitle the qualified holder to
purchase, at the then-current exercise price, shares of common stock of the
acquiring company having a value of twice the exercise price of the Right.
Furthermore, if any party were to acquire 15% or more of Dynatech's common stock
or were determined to be an adverse person as described above, qualified holders
of the Rights would be entitled to acquire shares of Dynatech junior
participating cumulative preferred stock having a value of twice the
then-current exercise price. At the option of the Board of Directors, all of the
Rights could be exchanged into shares of common or preferred stock.
The Rights will expire February 16, 1999, but may be redeemed at the option of
the Board for $0.02 per Right until one of the triggering events described above
has occurred. The Rights do not entitle holders to any voting power or other
shareholder benefits. Issuance of the Rights does not dilute the shareholders'
ownership of Dynatech, nor does it affect reported earnings per share.
COMMITMENTS AND CONTINGENCIES
The Company has operating leases from continuing operations covering plant,
office facilities, and equipment which expire at various dates through 2006.
Future minimum annual fixed rentals required during the years ending in fiscal
1998 through 2002 under noncancelable operating leases having an original term
of more than one year are $7.5 million, $7.0 million, $5.7 million, $4.6
million, and $4.1 million, respectively. The aggregate obligation subsequent to
fiscal 2002 is $9.5 million. Rent expense from continuing operations was
approximately $6.2 million, $5.7 million, and $4.4 million in fiscal 1997, 1996,
and 1995, respectively.
33
<PAGE> 34
The Company is a party to several pending legal proceedings and claims. Although
the outcome of such proceedings and claims cannot be determined with certainty,
the Company's counsel and management are of the opinion that the final outcome
should not have a material adverse effect on the Company's operations or
financial position.
NONRECURRING CHARGES
<TABLE>
The components of nonrecurring expenses include the following:
<CAPTION>
Amounts in thousands 1997 1996
-----------------------------------------------------------------------
<S> <C> <C>
Incomplete technology $20,627 $16,852
Intangible writeoffs 7,149 --
-------------------------
Total $27,776 $16,852
=========================
</TABLE>
ACQUISITIONS
1997 Acquisitions: In March of 1997, the Company acquired the net assets of
Advent Design, Inc. ("Advent") for $3.5 million in cash. Advent designs and
manufactures high-performance microprocessor-based systems for the computer,
medical and communications markets. This acquisition generated $3.4 million of
goodwill which is being amortized over 15 years. In order to ensure that key
personnel would remain with Advent, a targeted three-year earnout incentive of
$1 million per year of the Company's stock, was negotiated but not included in
the purchase price. The earnout is based on, among other things, a positive
operating income.
On December 31, 1996, the Company acquired substantially all of the assets and
assumed certain liabilities of Itronix Corporation ("Itronix") located in
Spokane, Washington, for $65.4 million in cash. Approximately $40 million of the
purchase price was borrowed pursuant to the terms of the Company's revolving
credit and term loan agreement in effect at that time. A significant portion of
the borrowed funds was repaid during the fourth quarter. Itronix is a
manufacturer of mobile computing and communications devices, including
ruggedized laptop computers, which increase the efficiency of large,
mission-critical service groups.
Incident to this acquisition was the purchase of incomplete technology
activities which resulted in a one-time pretax charge of $20.6 million or
($0.74) per share. This purchased incomplete technology that had not reached
technological feasibility and which had no alternative future use was valued
using a risk adjusted cash flow model, both in 1997 and 1996, under which future
cash flows associated with in-process research and development were discounted
considering risks and uncertainties related to the viability of potential
changes in future target markets and to the completion of the products that will
ultimately be marketed by the Company. Acquired complete technology of $8.4
million is being amortized over two to seven years, and goodwill of $17.9
million is being amortized over 15 years.
34
<PAGE> 35
<TABLE>
The following unaudited pro forma information presents a summary of consolidated
results of operations of the Company as if the acquisition had occurred at the
beginning of fiscal 1996, with pro forma adjustments to give effect to
amortization of goodwill and intangibles, interest expense on acquisition debt,
and certain other adjustments, together with related income tax effects.
<CAPTION>
Amounts in thousands 1997 1996
----------------------------------------------------------------------
<S> <C> <C>
Revenue $426,234 $355,886
Net income from continuing operations $ 31,569 $ 14,609
Earnings per share $ 1.74 $ 0.80
Weighted average shares 18,028 18,315
</TABLE>
1996 Acquisitions On February 20, 1996 Dynatech acquired the stock of
Synergistic Solutions, Inc. ("SSI"), of Atlanta, Georgia, for approximately $5.5
million. Acquired technology and other intangible assets of approximately $4.3
million are being amortized over four to seven years. The investment in excess
of fair market value of assets purchased of $964 thousand is being amortized
over 15 years.
On September 1, 1995 Dynatech acquired substantially all of the business and
assets of Tele-Path Industries, Inc. ("TPI"), of Salem, Virginia, for $23.6
million. Approximately $12.6 million was cash, including a $2.6 million
contingent adjustment for the stock price, and 688,096 shares of the Company's
common stock at $19.91 per share. Acquired complete technology and other
intangible assets of approximately $6.7 million are being amortized over five
years.
Incident to this acquisition, the Company purchased the incomplete technology
activities of TPI, resulting in a one-time pretax charge in the second quarter
of approximately $16.9 million, or ($0.56) per share. This purchased incomplete
technology that had not reached technological feasibility and which had no
alternative future use was valued using a risk adjusted cash flow model.
Acquisitions, both in fiscal 1997 and 1996, were recorded using the purchase
method of accounting.
SEGMENT INFORMATION AND GEOGRAPHIC AREAS
The Corporation operates predominantly in a single industry as a global
communications equipment manufacturer focused on network technology solutions.
Its products address communications test, industrial computing and
communications, and visual communications applications. Dynatech is a
multi-national corporation with continuing operations outside the United States
consisting of distribution and sales offices in Germany, England, France and the
Pacific Rim.
Net income in fiscal 1997, 1996, and 1995 included currency gains (losses) of
approximately $99,300, $(90,300), and $292,900, respectively.
35
<PAGE> 36
<TABLE>
Information by geographic areas for the years ended March 31, 1997, 1996, and
1995 is summarized below:
<CAPTION>
Outside U.S.
(principally
Amounts in thousands United States Europe) Combined
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Sales to unaffiliated customers
1997 $340,603* $21,809 $362,412
1996 268,830* 24,212 293,042
1995 220,907* 22,171 243,078
Income (loss) before taxes from continuing operations
1997 $ 38,486 $(3,052) $35,434
1996 26,657 (549) 26,108
1995 27,771 324 28,095
Identifiable assets at
March 31, 1997 $216,243 $33,792 $250,035
March 31, 1996 186,186 19,003 205,189
March 31, 1995 177,317 79,075 256,392
</TABLE>
* Includes export sales of $48,959, $35,844 and $33,929 in 1997, 1996 and 1995,
respectively.
36
<PAGE> 37
To the Board of Directors and Shareholders of Dynatech Corporation:
We have audited the accompanying consolidated balance sheets of Dynatech
Corporation as of March 31, 1997 and 1996, and the related consolidated
statements of operations, shareholders' equity and cash flows for each of the
three fiscal years in the period ended March 31, 1997. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the consolidated financial position of Dynatech
Corporation as of March 31, 1997 and 1996, and the consolidated results of its
operations and its cash flows for each of the three fiscal years in the period
ended March 31, 1997 in conformity with generally accepted accounting
principles.
Coopers & Lybrand L.L.P.
Boston, Massachusetts
May 1, 1997
37
<PAGE> 38
<TABLE>
SUMMARY OF OPERATIONS BY QUARTER (Unaudited)
(Amounts in thousands except per share data)
<CAPTION>
1997
FIRST SECOND THIRD FOURTH YEAR
- ------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Sales $81,122 $85,725 $92,007 $103,558 $362,412
Gross profit 50,874 54,463 58,485 61,336 225,158
Income (loss) from
continuing operations 8,412 9,277 (2,896)(b) 3,056(c) 17,849
Net income (loss) 8,412 9,277 (2,896) 15,056(d) 29,849
Income (loss) per common share
Continuing operations $ 0.46 $ 0.52 $ (0.16) $ 0.17 $ 0.99
Net income (loss) 0.46 0.52 (0.16) 0.84 1.66
Market Share Price(a) -- High $ 35.00 $ 46.88 $ 58.00 $ 54.50
-- Low 23.00 30.75 40.50 28.00
<CAPTION>
1996
FIRST SECOND THIRD FOURTH YEAR
- ------------------------------------------------------------------------------------------------
Sales $66,758 $68,513 $80,540 $77,231 $293,042
Gross profit 41,509 42,251 49,917 47,929 181,606
Income (loss) from
continuing operations 5,047 (4,883)(b) 8,141 7,409 15,714
Net income (loss) 4,625 (4,993) 7,807 6,804 14,243
Income (loss) per common share
Continuing operations $ 0.28 $ (0.27) $ 0.45 $ 0.40 $ 0.86
Net income (loss) 0.26 (0.28) 0.43 0.37 0.78
Market Share Price(a) -- High $ 20.50 $ 22.25 $ 17.50 $ 25.50
-- Low 14.75 15.13 14.00 16.00
</TABLE>
(a) Dynatech common shares are traded on the New York Stock Exchange. Prior
to January 28, 1997, Dynatech common shares were traded on the Nasdaq -
National Market. No cash dividends were paid on Dynatech common shares.
(b) Includes charge for purchased incomplete technology of $20.6 million or
($0.74) per share in 1997, $16.9 million or ($0.56) per share in 1996.
(c) Includes a charge of $7.1 million or ($0.36) per share relating to the
writeoff of certain intangible assets.
(d) Includes gain on discontinued operations of $12 million or $0.67 per
share.
38
<PAGE> 39
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
DYNATECH CORPORATION
------------------------
June 18, 1997 By: /s/ Allan M. Kline
--------------------------------------
Corporate Vice President,
Chief Financial Officer and Treasurer
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
<TABLE>
<S> <C> <C>
/s/ JOHN F. RENO Chairman of the Board, Director, President
- -------------------------------------- and Chief Executive Officer June 18, 1997
/s/ ALLAN M. KLINE Corporate Vice President,
- -------------------------------------- Chief Financial Officer, and Treasurer June 18, 1997
(Principal Financial Officer)
/s/ ROBERT W. WOODBURY, JR. Corporate Vice President
- -------------------------------------- Controller (Principal Accounting Officer) June 18, 1997
/s/ RICHARD K. LOCHRIDGE Director June 18, 1997
- --------------------------------------
/s/ RONALD L. BITTNER Director June 18, 1997
- --------------------------------------
/s/ WILLIAM R. COOK Director June 18, 1997
- --------------------------------------
/s/ O. GENE GABBARD Director June 18, 1997
- --------------------------------------
/s/ L. DENNIS KOZLOWSKI Director June 18, 1997
- --------------------------------------
/s/ ROBERT G. PAUL Director June 18, 1997
- --------------------------------------
/s/ PETER VAN CUYLENBURG Director June 18, 1997
- --------------------------------------
</TABLE>
40
<PAGE> 40
SCHEDULE II
<TABLE>
VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED
MARCH 31, 1997, 1996, AND 1995
RESERVE FOR DOUBTFUL ACCOUNTS (In thousands)
<CAPTION>
<S> <C>
BALANCE, March 31, 1994 3,905(a)
Additions charged to income 2,685
Write-off of uncollectible accounts, net (1,293)
Allowances of divisions sold (220)
-------
BALANCE, March 31, 1995 5,077(a)
Additions charged to income 356
Write-off of uncollectible accounts, net (494)
Allowances reclassified, related to
discontinued operations (3,982)
-------
BALANCE, March 31, 1996 957
Additions charged to income 646
Allowances reclassified 628
Write-off of uncollectible accounts, net (359)
-------
BALANCE, March 31, 1997 $ 1,872
=======
</TABLE>
(a) Prior year balances have not been restated to reflect elimination of
discontinued operations.
<PAGE> 41
DYNATECH CORPORATION
EXHIBIT INDEX
EXHIBIT
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3.1(1) Restated Articles of Organization, as amended.
3.2(2) Amended and Restated By-laws.
4.1(1) Shareholder Rights Agreement dated February 16, 1989, as amended and
restated as of March 12, 1990.
10.1(1)* 1982 Incentive Stock Option Plan.
10.2(3)* 1992 Stock Option Plan.
10.3(4)* 1994 Stock Option and Incentive Plan, as amended.
10.4(1)* Form of Special Termination Agreement between the Company and Mr.
Reno.
10.5(1)* Form of Special Termination Agreement between the Company and each of
its Executive Officers other than Mr. Reno.
10.6 Revolving Credit and Term Loan Agreement dated April 29, 1997 between
the Company and BankBoston, N.A.
10.7 Dynatech Corporation Supplemental 401-K Savings Plan.
10.8 Dynatech Corporation 1996 Employee Stock Purchase Plan. Computation
of per share earnings.
11 Computation of Per Share Earnings.
21 Subsidiaries of the Company.
23 Consent of Independent Accountants.
27 Financial Data Schedule.
- --------------------------------------------------------------------------------
* Management contract or compensatory plan or arrangement as an exhibit to this
Form pursuant to Items 14(a) and 14(c) of Form 10K.
(1) Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended March 31, 1996.
(2) Incorporated by reference to the Company's Annual Report on Form 10-K for
the fiscal year ended March 31, 1992.
(3) Incorporated by reference to the Company's Quarterly Report on Form 10-Q
for the fiscal year ended March 31, 1992.
(4) Incorporated by reference to Exhibit 4.1 to Form S-8 filed on January 30,
1996 (File No. 333-01639).
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Exhibit 10.6
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REVOLVING CREDIT
AND
TERM LOAN AGREEMENT
Dated as of April 29, 1997
among
DYNATECH CORPORATION,
each of the Subsidiaries appearing on the signature page hereto,
BANKBOSTON, N.A.
and the other lending institutions set forth on SCHEDULE 1 hereto,
BANKBOSTON, N.A., as Agent
and
MELLON BANK, N.A., as Documentation Agent
with
BANCBOSTON SECURITIES INC.
as Arranger
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<TABLE>
TABLE OF CONTENTS
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1. DEFINITIONS AND RULES OF INTERPRETATION. .......................................................1
1.1. Definitions. ........................................................................1
1.2. Rules of Interpretation. ............................................................15
2. THE REVOLVING CREDIT FACILITY. .................................................................16
2.1. Commitment to Lend. .................................................................16
2.2. The Swing Line........................................................................16
2.2.1. The Swing Line Loans. ....................................................16
2.2.2. Notice. ..................................................................17
2.2.3. Irrevocable Notice. ......................................................18
2.2.4. Purchase of Swing Line Loan. .............................................18
2.3. Commitment Fee. .....................................................................18
2.4. Reduction of Total Commitment. ......................................................18
2.5. The Revolving Credit Notes. .........................................................19
2.6. Interest on Revolving Credit Loans. .................................................19
2.7. Requests for Revolving Credit Loans. ................................................19
2.8. Conversion Options. .................................................................20
2.8.1. Conversion to Different Type of Revolving Credit Loan. ...................20
2.8.2. Continuation of Type of Revolving Credit Loan. ...........................20
2.8.3. Eurodollar Rate Loans. ...................................................21
2.9. Funds for Revolving Credit Loan. ....................................................21
2.9.1. Funding Procedures. ......................................................21
2.9.2. Advances by Agent. .......................................................21
2.10. Pro Rata Treatment. ................................................................22
3. REPAYMENT OF THE REVOLVING CREDIT LOANS AND SWING LINE LOANS. ..................................22
3.1. Maturity. ...........................................................................22
3.1.1. Revolving Credit Loans. ..................................................22
3.1.2. Swing Line Loans. ........................................................22
3.2. Mandatory Repayments of Revolving Credit Loans. .....................................22
3.3. Optional Repayments of Revolving Credit Loans and Swing Line Loans. .................23
4. THE TERM LOAN. .................................................................................23
4.1. Conversion of Revolving Credit Loans and Swing Line Loans; the Term Loan. ...........23
4.2. The Term Notes. .....................................................................24
4.3. Repayments of the Term Loan...........................................................24
4.3.1. Schedule of Installment Payments of Principal of Term Loan. ..............24
4.3.2. Proceeds. ................................................................24
4.4. Optional Prepayment of Term Loan. ...................................................25
4.5. Interest on Term Loan. ..............................................................25
4.5.1. Interest Rates. ..........................................................25
4.5.2. Notification by Borrower. ................................................26
4.5.3. Amounts, etc. ............................................................26
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5. LETTERS OF CREDIT. .............................................................................26
5.1. Letter of Credit Commitments..........................................................26
5.1.1. Commitment to Issue Letters of Credit. ...................................26
5.1.2. Letter of Credit Applications. ...........................................26
5.1.3. Terms of Letters of Credit. ..............................................27
5.1.4. Reimbursement Obligations of Banks. ......................................27
5.1.5. Participations of Banks. .................................................27
5.2. Reimbursement Obligation of the Borrower. ...........................................27
5.3. Letter of Credit Payments. ..........................................................28
5.4. Obligations Absolute. ...............................................................29
5.5. Reliance by Issuer. .................................................................29
5.6. Letter of Credit Fee. ...............................................................29
6. CERTAIN GENERAL PROVISIONS. ....................................................................30
6.1. Closing Fee. ........................................................................30
6.2. Agent's Fee. ........................................................................30
6.3. Funds for Payments. .................................................................30
6.3.1. Payments to Agent. .......................................................30
6.3.2. No Offset, etc. ..........................................................30
6.4. Computations. .......................................................................31
6.5. Inability to Determine Eurodollar Rate. .............................................31
6.6. Illegality. .........................................................................31
6.7. Additional Costs, etc. ..............................................................31
6.8. Capital Adequacy. ...................................................................33
6.9. Certificate. ........................................................................33
6.10. Indemnity. .........................................................................33
6.11. Interest After Default. ............................................................34
6.12. Replacement Bank. ..................................................................34
7. GUARANTIES. ....................................................................................35
7.1. Guaranty. ...........................................................................35
7.1.1. Guaranty of Payment and Performance. .....................................35
7.1.2. Guarantors' Agreement to pay Enforcement Costs. ..........................35
7.1.3. Waivers by Guarantors; Banks Freedom to Act. .............................36
7.1.4. Unenforceability against Borrower. .......................................37
7.1.5. Subrogration; Subordination. .............................................37
7.1.6. Security; Setoff. ........................................................38
7.1.7. Further Assurances. ......................................................38
7.1.8. Termination; Reinstatement. ..............................................39
8. REPRESENTATIONS AND WARRANTIES. ................................................................39
8.1. Corporate Authority. ................................................................39
8.1.1. Incorporation; Good Standing. ............................................39
8.1.2. Authorization. ...........................................................39
8.1.3. Enforceability. ..........................................................40
8.2. Governmental Approvals. .............................................................40
8.3. Title to Properties; Leases. ........................................................40
8.4. Financial Statements and Projections. ...............................................40
8.4.1. Financial Statements. ....................................................40
8.4.2. Projections. .............................................................41
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8.5. No Material Changes, etc. ...........................................................41
8.6. Franchises, Patents, Copyrights, etc. ...............................................41
8.7. Litigation. .........................................................................41
8.8. No Materially Adverse Contracts, etc. ...............................................41
8.9. Compliance with Other Instruments, Laws, etc. .......................................42
8.10. Tax Status. ........................................................................42
8.11. No Event of Default. ...............................................................42
8.12. Holding Company and Investment Company Acts. .......................................42
8.13. Absence of Financing Statements, etc. ..............................................42
8.14. Certain Transactions. ..............................................................42
8.15. Employee Benefit Plans. ............................................................43
8.15.1. In General. .............................................................43
8.15.2. Terminability of Welfare Plans. .........................................43
8.15.3. Guaranteed Pension Plans. ...............................................43
8.15.4. Multiemployer Plans. ....................................................44
8.16. Regulations U and X. ...............................................................44
8.17. Environmental Compliance. ..........................................................44
8.18. Subsidiaries, etc. .................................................................46
8.19. Disclosure...........................................................................46
8.20. Chief Executive Offices. ...........................................................47
8.21. Fiscal Year. .......................................................................47
8.22. Insurance. .........................................................................47
9. AFFIRMATIVE COVENANTS OF THE BORROWER AND GUARANTORS. ..........................................47
9.1. Punctual Payment. ...................................................................47
9.2. Maintenance of Office. ..............................................................47
9.3. Records and Accounts. ...............................................................47
9.4. Financial Statements, Certificates and Information. .................................47
9.5. Notices. ............................................................................49
9.5.1. Defaults. ................................................................49
9.5.2. Environmental Events. ....................................................49
9.5.3. Notice of Litigation and Judgments. ......................................49
9.6. Corporate Existence; Maintenance of Properties. .....................................50
9.7. Insurance. ..........................................................................50
9.8. Taxes. ..............................................................................50
9.9. Inspection of Properties and Books, etc. ............................................51
9.9.1. General. .................................................................51
9.9.2. Communications with Accountants. .........................................51
9.10. Compliance with Laws, Contracts, Licenses, and Permits. ............................51
9.11. Employee Benefit Plans. ............................................................52
9.12. Use of Proceeds. ...................................................................52
9.13. New Guarantors. ....................................................................52
9.14. Further Assurances. ................................................................52
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. ...................................................52
10.1. Restrictions on Indebtedness. ......................................................52
10.2. Restrictions on Liens. .............................................................53
10.3. Restrictions on Investments. .......................................................55
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10.4. Distributions. .....................................................................56
10.5. Merger, Consolidation and Disposition of Assets. ...................................56
10.5.1. Mergers and Acquisitions. ...............................................56
10.5.2. Disposition of Assets. ..................................................57
10.6. Sale and Leaseback. ................................................................57
10.7. Compliance with Environmental Laws. ................................................58
10.8. Employee Benefit Plans. ............................................................58
10.9. Transactions with Affiliates. ......................................................58
10.10. Fiscal Year. ......................................................................59
10.11. Upstream Limitations. .............................................................59
11. FINANCIAL COVENANTS OF THE BORROWER. ..........................................................59
11.1. Leverage Ratio. ....................................................................59
11.2. Profitable Operations. .............................................................59
11.3. Debt Service. ......................................................................59
11.4. Current Ratio. .....................................................................59
11.5. Consolidated Net Worth. ............................................................59
12. CLOSING CONDITIONS. ...........................................................................60
12.1. Loan Documents. ....................................................................60
12.2. Certified Copies of Charter Documents. .............................................60
12.3. Corporate Action. ..................................................................60
12.4. Incumbency Certificate. ............................................................60
12.5. UCC Search Results. ................................................................60
12.6. Certificates of Insurance. .........................................................60
12.7. Solvency Certificate. ..............................................................61
12.8. Opinion of Counsel. ................................................................61
12.9. Payment of Fees. ...................................................................61
12.10. Payoff Letter. ....................................................................61
12.11. Disbursement Instructions. ........................................................61
13. CONDITIONS TO ALL BORROWINGS. .................................................................61
13.1. Representations True; No Event of Default. .........................................61
13.2. No Legal Impediment. ...............................................................61
13.3. Governmental Regulation. ...........................................................62
13.4. Proceedings and Documents. .........................................................62
14. EVENTS OF DEFAULT; ACCELERATION; ETC. .........................................................62
14.1. Events of Default and Acceleration. ................................................62
14.2. Termination of Commitments. ........................................................65
14.3. Remedies. ..........................................................................66
14.4. Distribution of Proceeds. ..........................................................66
15. SETOFF. .......................................................................................67
16. THE BANK AGENTS. ..............................................................................68
16.1. Authorization. .....................................................................68
16.2. Employees and Agents. ..............................................................68
16.3. No Liability. ......................................................................69
16.4. No Representations. ................................................................69
16.5. Payments. ..........................................................................69
16.5.1. Payments to Agent. ......................................................69
16.5.2. Distribution by Agent. ..................................................69
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16.5.3. Delinquent Banks. .......................................................70
16.6. Holders of Notes. ..................................................................70
16.7. Indemnity. .........................................................................70
16.8. Agent as Bank. .....................................................................71
16.9. Resignation. .......................................................................71
16.10. Notification of Defaults and Events of Default. ...................................71
17. EXPENSES. .....................................................................................71
18. INDEMNIFICATION. ..............................................................................72
19. SURVIVAL OF COVENANTS, ETC. ...................................................................73
20. ASSIGNMENT AND PARTICIPATION. .................................................................73
20.1. Conditions to Assignment by Banks. .................................................73
20.2. Certain Representations and Warranties; Limitations; Covenants. ....................74
20.3. Register. ..........................................................................75
20.4. New Notes. .........................................................................75
20.5. Participations. ....................................................................76
20.6. Disclosure. ........................................................................76
20.7. Assignee or Participant Affiliated with the Borrower. ..............................76
20.8. Miscellaneous Assignment Provisions. ...............................................77
20.9. Assignment by Borrower. ............................................................77
21. NOTICES, ETC. .................................................................................77
22. GOVERNING LAW. ................................................................................78
23. HEADINGS. .....................................................................................78
24. COUNTERPARTS. .................................................................................78
25. ENTIRE AGREEMENT, ETC. ........................................................................79
26. WAIVER OF JURY TRIAL. .........................................................................79
27. CONSENTS, AMENDMENTS, WAIVERS, ETC. ...........................................................79
28. SEVERABILITY. .................................................................................80
29. RELEASE OF GUARANTORS. ........................................................................80
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REVOLVING CREDIT
AND
TERM LOAN AGREEMENT
This REVOLVING CREDIT AND TERM LOAN AGREEMENT is made as of April 29,
1997, by and among (a) DYNATECH CORPORATION (the "Borrower"), (b) each of the
Domestic Subsidiaries (as hereinafter defined) of the Borrower appearing on the
signature page hereto as a "Guarantor", (c) BANKBOSTON, N.A. (f/k/a The First
National Bank of Boston), a national banking association and the other lending
institutions listed on SCHEDULE 1, (d) BANKBOSTON, N.A. as agent for itself,
such other lending institutions and the Documentation Agent (as hereinafter
defined) (the "Agent"), and (e) MELLON BANK, N.A. as documentation agent for
itself and such other lending institutions and the Agent (the "Documentation
Agent").
WHEREAS, pursuant to an Amended and Restated Multicurrency Revolving
Credit and Term Loan Agreement dated as of October 27, 1995 (as amended and in
effect from time to time, the "Prior Loan Agreement") by and among the Borrower,
the Guarantors, the lenders party thereto (the "Prior Lenders"), The First
National Bank of Boston as agent for the Prior Lenders and certain other parties
thereto, the Prior Lenders made advances and other extensions of credit to the
Borrower for general corporate and working capital purposes; and
WHEREAS, the Borrower and the Guarantors have requested that the Banks
(as hereinafter defined) replace the financing provided under the Prior Loan
Agreement by the Prior Lenders, and the Banks are willing to provide such
financing on the terms and conditions set forth herein;
NOW, THEREFORE, the Borrower, the Guarantors, the Banks, the Agent and
the Documentation Agent agree as follow:
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. DEFINITIONS. The following terms shall have the meanings set forth
in this sec.1 or elsewhere in the provisions of this Credit Agreement referred
to below:
ADJUSTMENT DATE. The first day of the month immediately following the
month in which a Compliance Certificate is to be delivered by the Borrower
pursuant to sec.9.4(c).
AFFECTED BANK. See sec.6.12.
AFFILIATE. Any Person that would be considered to be an affiliate of
the Borrower under Rule 144(a) of the Rules and Regulations of the Securities
and
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Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
AGENT'S HEAD OFFICE. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or at such other location as the Agent may
designate from time to time.
AGENT. As defined in the preamble hereto.
AGENT'S SPECIAL COUNSEL. Bingham, Dana & Gould LLP or such other
counsel as may be approved by the Agent.
APPLICABLE MARGIN. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable margin set
forth below with respect to the Borrower's Leverage Ratio, as determined for the
fiscal period of the Borrower and its Subsidiaries ending immediately prior to
the applicable Rate Adjustment Period.
<TABLE>
<CAPTION>
---------------------------------------------------------------------------------------------
Base Rate Eurodollar Commitment Fee Letter of
Loans Rate Loans Rate Credit Fee
Tier Leverage Ratio (basis pts) (basis pts) (basis pts) (basis pts)
---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
---------------------------------------------------------------------------------------------
1 Less than 1.25:1.00 0 37.50 17.50 37.50
---------------------------------------------------------------------------------------------
2 Less than 1.75:1.00 0 50.00 20.00 50.00
but greater than or
equal to 1.25:1.00
---------------------------------------------------------------------------------------------
3 Less than 2.25:1.00 0 62.50 25.00 62.50
but greater than or
equal to 1.75:1.00
---------------------------------------------------------------------------------------------
4 Equal to or greater 0 87.50 30.00 87.50
than 2.25:1.00
---------------------------------------------------------------------------------------------
</TABLE>
Notwithstanding the foregoing, (a) for Revolving Credit Loans
outstanding, the Letter of Credit Fees and the commitment fee payable during the
period commencing on the Closing Date through the date immediately preceding the
first Adjustment Date to occur after the fiscal quarter ending March 31, 1997,
the Applicable Margin shall be a Tier 1, (b) in the event the Borrower or any of
its Subsidiaries consummates a Permitted Acquisition, on the date such Permitted
Acquisition is consummated the Borrower shall deliver to the Agent a pro forma
Compliance Certificate setting forth its Leverage Ratio on a Pro Forma Basis
immediately after giving effect to such Permitted Acquisition and for Revolving
Credit Loans outstanding, the Term Loan outstanding, the Letter of Credit Fees
and the commitment fee payable during the period commencing on the date such
Permitted Acquisition was consummated through the date immediately preceding the
next Adjustment Date to occur after such date, the Applicable Margin will be the
applicable margin set forth above with respect to the Borrower's Leverage Ratio
as calculated on such Pro forma Basis and (c) if the Borrower fails to deliver
any Compliance Certificate pursuant to sec.9.4(c) hereof then, for the period
commencing
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on the next Adjustment Date to occur subsequent to such failure through the date
immediately following the date on which such Compliance Certificate is
delivered, the Applicable Margin shall be the highest Applicable Margin set
forth above.
ASSET SALE. Any one or series of related transactions on which any
Person conveys, sells, transfers or otherwise disposes of, directly or
indirectly, any of its properties, businesses or assets (including the sale or
issuance of capital stock of any Subsidiary other than to the Borrower or any
Subsidiary) whether owned on the Closing Date or thereafter acquired
ASSIGNMENT AND ACCEPTANCE. See sec.20.1.
BALANCE SHEET DATE. March 31, 1996.
BANK AGENTS. Collectively, the Agent and the Documentation Agent.
BANKS. BKB and the other lending institutions listed on SCHEDULE 1
hereto and any other Person who becomes an assignee of any rights and
obligations of a Bank pursuant to sec.20.
BASE RATE. The higher of (a) the annual rate of interest announced from
time to time by BKB at its head office in Boston, Massachusetts, as its "base
rate" and (b) one-half of one percent (1/2%) above the Federal Funds Effective
Rate. For the purposes of this definition, "Federal Funds Effective Rate" shall
mean for any day, the rate per annum equal to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three funds brokers of recognized
standing selected by the Agent.
BASE RATE LOANS. Revolving Credit Loans and all or any portion of the
Term Loan bearing interest calculated by reference to the Base Rate.
BKB. BankBoston, N.A., a national banking association, in its
individual capacity.
BORROWER. As defined in the preamble hereto.
BUSINESS DAY. Any day on which banking institutions in Boston,
Massachusetts, are open for the transaction of commercial lending business and,
in the case of Eurodollar Rate Loans, also a day which is a Eurodollar Business
Day.
CAPITALIZED LEASES. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with generally accepted accounting
principles.
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CERCLA. See sec.8.17.
CLOSING DATE. The first date on which the conditions set forth in
sec.12 have been satisfied and any Revolving Credit Loans are available to be
made or any Letter of Credit is to be issued hereunder.
CODE. The Internal Revenue Code of 1986.
COMMITMENT. With respect to each Bank, the amount set forth on SCHEDULE
1 hereto as the amount of such Bank's commitment to make Revolving Credit Loans
to, and to participate in the issuance, extension and renewal of Letters of
Credit for the account of, the Borrower, as the same may be reduced from time to
time; or if such commitment is terminated pursuant to the provisions hereof,
zero.
COMMITMENT FEE RATE. As referred to as such in the table contained in
the definition of Applicable Margin.
COMMITMENT PERCENTAGE. With respect to each Bank, the percentage set
forth on SCHEDULE 1 hereto as such Bank's percentage of the aggregate
Commitments of all of the Banks.
COMPLIANCE CERTIFICATE. See sec.9.4(c).
CONSOLIDATED OR CONSOLIDATED. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Borrower and its
Subsidiaries, consolidated in accordance with generally accepted accounting
principles.
CONSOLIDATED CURRENT ASSETS. All assets of the Borrower and its
Subsidiaries on a consolidated basis that, in accordance with generally accepted
accounting principles, are properly classified as current assets.
CONSOLIDATED CURRENT LIABILITIES. All liabilities of the Borrower and
its Subsidiaries on a consolidated basis as may properly be classified as
current liabilities in accordance with generally accepted accounting principles.
CONSOLIDATED GROSS REVENUES. All revenues of the Borrower and its
Subsidiaries which should, in accordance with generally accepted accounting
principles consistently applied, be classified as revenues on the consolidated
statement of income of the Borrower and its Subsidiaries, less any returns and
allowances.
CONSOLIDATED NET INCOME (OR DEFICIT). For any period, the consolidated
net income (or deficit) of the Borrower and its Subsidiaries, after deduction of
all expenses, taxes, and other proper charges, determined in accordance with
generally accepted accounting principles, after eliminating therefrom all
extraordinary nonrecurring noncash items of income (or loss).
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Page 5
CONSOLIDATED NET WORTH. The excess of Consolidated Total Assets over
Consolidated Total Liabilities, LESS, to the extent otherwise includable in the
computations of Consolidated Net Worth, any stock or other equity subscriptions
receivable.
CONSOLIDATED TANGIBLE NET WORTH. The excess of Consolidated Total
Assets over Consolidated Total Liabilities, and less the sum of:
(a) the total book value of all assets of the Borrower and its
Subsidiaries properly classified as intangible assets under generally
accepted accounting principles, including such items as good will, the
purchase price of acquired assets in excess of the fair market value
thereof, trademarks, trade names, service marks, brand names,
copyrights, patents and licenses, and rights with respect to the
foregoing; plus
(b) all amounts representing any write-up in the book value of
any assets of the Borrower or its Subsidiaries resulting from a
revaluation thereof subsequent to the Balance Sheet Date, excluding
adjustments to translate foreign assets and liabilities for changes in
foreign exchange rates made in accordance with Financial Accounting
Standards Board Statement No. 52; plus
(c) all amounts representing any minority interests held by
the Borrower and its Subsidiaries; plus
(d) to the extent otherwise includable in the computation of
Consolidated Tangible Net Worth, any stock or either equity
subscriptions receivable.
CONSOLIDATED TOTAL ASSETS. All assets of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles.
CONSOLIDATED TOTAL INTEREST EXPENSE. With respect to any Person, for
any fiscal period, the aggregate amount of interest required to be paid or
accrued by such Person and its Subsidiaries during such period on all
Indebtedness of such Person and its Subsidiaries outstanding during all or any
part of such period, whether such interest was or is required to be reflected as
an item of expense or capitalized, including payments consisting of interest in
respect of Capitalized Leases and including commitment fees, agency fees,
facility fees, balance deficiency fees and similar fees or expenses in
connection with the borrowing of money.
CONSOLIDATED TOTAL LIABILITIES. All liabilities of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles and all Indebtedness of the Borrower and its
Subsidiaries, whether or not so classified.
CONVERSION DATE. April 29, 2000.
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Page 6
CONVERSION REQUEST. A notice given by the Borrower to the Agent of the
Borrower's election to convert or continue a Loan in accordance with sec.2.8.
CREDIT AGREEMENT. This Revolving Credit and Term Loan Agreement,
including the Schedules and Exhibits hereto.
DEFAULT. See sec.14.1.
DISTRIBUTION. The declaration or payment of any dividend on or in
respect of any shares of any class of capital stock of the Borrower or any of
its Subsidiaries, other than dividends payable solely in shares of common stock
of the Borrower; the purchase, redemption, or other retirement of any shares of
any class of capital stock of the Borrower, directly or indirectly through a
Subsidiary of the Borrower or otherwise; the return of capital by the Borrower
or any of its Subsidiaries to their shareholders as such; or any other
distribution on or in respect of any shares of any class of capital stock of the
Borrower or any of its Subsidiaries.
DOCUMENTATION AGENT. As defined in the preamble hereto.
DOLLARS or $. Dollars in lawful currency of the United States of
America.
DOMESTIC LENDING OFFICE. Initially, the office of each Bank designated
as such in SCHEDULE 1 hereto; thereafter, such other office of such Bank, if
any, located within the United States that will be making or maintaining Base
Rate Loans.
DOMESTIC MATERIAL SUBSIDIARY. Any Material Subsidiary organized under
the laws of the United States of America or any State thereof.
DRAWDOWN DATE. The date on which any Revolving Credit Loan, Swing Line
Loan or the Term Loan is made or is to be made, and the date on which any
Revolving Credit Loan is converted or continued in accordance with sec.2.8 or
all or any portion of the Term Loan is converted or continued in accordance with
sec.4.5.2.
EBIT. With respect to any fiscal period, an amount equal to (a) EBITDA
of the Borrower and its Subsidiaries LESS, to the extent included in EBITDA, (b)
amortization and depreciation for such period.
EBITDA. With respect to any fiscal period, an amount equal to the sum
of (a) Consolidated Net Income of the Borrower and its Subsidiaries for such
fiscal period, PLUS (b) in each case to the extent deducted in the calculation
of such Person's Consolidated Net Income and without duplication (i)
amortization and depreciation for such period, PLUS (ii) tax expense for such
period, PLUS (iii) Consolidated Total Interest Expense paid or accrued during
such period, all as determined in accordance with generally accepted accounting
principles.
ELIGIBLE ASSIGNEE. Any of (a) a commercial bank or finance company
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (b) a
savings and loan
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association or savings bank organized under the laws of the United States, or
any State thereof or the District of Columbia, and having a net worth of at
least $250,000,000, calculated in accordance with generally accepted accounting
principles; (c) a commercial bank organized under the laws of any other country
which is a member of the Organization for Economic Cooperation and Development
(the "OECD"), or a political subdivision of any such country, and having total
assets in excess of $1,000,000,000, PROVIDED that such bank is acting through a
branch or agency located in the country in which it is organized or another
country which is also a member of the OECD; (d) the central bank of any country
which is a member of the OECD; and (e) if, but only if, any Event of Default has
occurred and is continuing, any other bank, insurance company, commercial
finance company or other financial institution or other Person approved by the
Agent, such approval not to be unreasonably withheld.
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
ss.3(3) of ERISA maintained of contributed to by the Borrower, other than a
Guaranteed Pension Plan or a Multiemployer Plan.
ENVIRONMENTAL LAWS. See sec.8.18(a).
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA AFFILIATE. Any Person which is treated as a single employer with
the Borrower under ss.414 of the Code.
ERISA REPORTABLE EVENT. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of sec.4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
EUROCURRENCY RESERVE RATE. For any day with respect to a Eurodollar
Rate Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
EURODOLLAR BUSINESS DAY. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other eurodollar interbank market as may be selected by the Agent in its sole
discretion acting in good faith.
EURODOLLAR LENDING OFFICE. Initially, the office of each Bank
designated as such in SCHEDULE 1 hereto; thereafter, such other office of such
Bank, if any, that shall be making or maintaining Eurodollar Rate Loans.
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EURODOLLAR RATE. For any Interest Period with respect to a Eurodollar
Rate Loan, the rate of interest equal to (a) the rate per annum (rounded upwards
to the nearest 1/16 of one percent) at which the Reference Bank's Eurodollar
Lending Office is offered Dollar deposits two Eurodollar Business Days prior to
the beginning of such Interest Period in the interbank eurodollar market where
the eurodollar and foreign currency and exchange operations of such Eurodollar
Lending Office are customarily conducted, for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of the Eurodollar Rate Loans to which such Interest
Period applies, divided by (b) a number equal to 1.00 minus the Eurocurrency
Reserve Rate, if applicable.
EURODOLLAR RATE LOANS. Revolving Credit Loans and all or any portion of
the Term Loan bearing interest calculated by reference to the Eurodollar Rate.
EVENT OF DEFAULT. See sec.14.1.
FEE LETTER. The letter agreement between the Borrower and the Agent
dated as of December 23, 1996.
FOREIGN MATERIAL SUBSIDIARY. Any Material Subsidiary which is not a
Domestic Material Subsidiary.
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. (a) When used in sec.11,
whether directly or indirectly through reference to a capitalized term used
therein, means (i) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(ii) to the extent consistent with such principles, the accounting practice of
the Borrower reflected in its financial statements for the year ended on the
Balance Sheet Date, and (b) when used in general, other than as provided above,
means principles that are (i) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (ii) consistently applied with past financial
statements of the Borrower adopting the same principles, provided that in each
case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of sec.3(2) of ERISA maintained or contributed to by the Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
GUARANTORS. As defined in the preamble hereto.
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HAZARDOUS SUBSTANCES. See sec.8.17(b).
INDEBTEDNESS. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should be
made by footnotes thereto, including in any event and whether or not so
classified: (i) all debt and similar monetary obligations, whether direct or
indirect; (ii) all liabilities secured by any mortgage, pledge, security
interest, lien, charge or other encumbrance existing on property owned or
acquired subject thereto, whether or not the liability secured thereby shall
have been assumed; and (iii) all guarantees, endorsements and other contingent
obligations whether direct or indirect in respect of indebtedness of others,
including any obligation to supply funds to or in any manner to invest in,
directly or indirectly, the debtor, to purchase indebtedness, or to assure the
owner of indebtedness against loss, through an agreement to purchase goods,
supplies, or services for the purpose of enabling the debtor to make payment of
the indebtedness held by such owner or otherwise, and the obligations to
reimburse the issuer in respect of any letters of credit.
INTEREST PAYMENT DATE. (a) As to any Base Rate Loan, the last day of
the calendar quarter which includes the Drawdown Date thereof; and (b) as to any
Eurodollar Rate Loan in respect of which the Interest Period is (i) 3 months or
less, the last day of such Interest Period and (ii) more than 3 months, the date
that is 3 months from the first day of such Interest Period and, in addition,
the last day of such Interest Period.
INTEREST PERIOD. With respect to each Revolving Credit Loan, Swing Line
Loan or all or any relevant portion of the Term Loan, (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrower in a Loan Request
(i) for any Base Rate Loan, the last day of the calendar quarter; and (ii) for
any Eurodollar Rate Loan, 1, 2, 3, or 6 months; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Revolving Credit Loan, Swing Line Loan or all or such portion of the Term
Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; PROVIDED that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(a) if any Interest Period with respect to a Eurodollar Rate
Loan would otherwise end on a day that is not a Eurodollar Business
Day, that Interest Period shall be extended to the next succeeding
Eurodollar Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the immediately preceding Eurodollar
Business Day;
(b) if any Interest Period with respect to a Base Rate Loan
would end on a day that is not a Business Day, that Interest Period
shall end on the next succeeding Business Day;
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(c) if the Borrower shall fail to give notice as provided in
sec.2.8, the Borrower shall be deemed to have requested a conversion of
the affected Eurodollar Rate Loan to a Base Rate Loan and the
continuance of all Base Rate Loans as Base Rate Loans on the last day
of the then current Interest Period with respect thereto;
(d) any Interest Period relating to any Eurodollar Rate Loan
that begins on the last Eurodollar Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the
last Eurodollar Business Day of a calendar month; and
(e) any Interest Period relating to any Eurodollar Rate Loan
that would otherwise extend beyond the Revolving Credit Loan Maturity
Date (if comprising a Revolving Credit Loan) or the Term Loan Maturity
Date (if comprising the Term Loan or a portion thereof) shall end on
the Revolving Credit Loan Maturity Date or (as the case may be) the
Term Loan Maturity Date.
INVESTMENTS. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (a) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (b) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(c) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
LETTER OF CREDIT. See sec.5.1.1.
LETTER OF CREDIT APPLICATION. See sec.5.1.1.
LETTER OF CREDIT FEE. See sec.5.6.
LETTER OF CREDIT PARTICIPATION. See sec.5.1.4.
LEVERAGE RATIO. For any fiscal quarter, the ratio of (a) Total Funded
Indebtedness of the Borrower and its Subsidiaries outstanding on the last day of
such quarter to (b) the EBITDA of the Borrower and its Subsidiaries for the
period
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of four consecutive fiscal quarters (treated as a single accounting period)
ended on such date, PROVIDED, when calculating the Leverage Ratio for any period
in which a Permitted Acquisition occurred, the calculation of the Leverage Ratio
shall be made on a Pro Forma Basis.
LOAN DOCUMENTS. This Credit Agreement, the Notes, the Fee Letter, the
Letter of Credit Applications and the Letters of Credit.
LOAN REQUEST. See sec.2.7.
LOANS. The Revolving Credit Loans, the Swing Line Loans and the Term
Loan.
MAJORITY BANKS. As of any date, the Banks holding at least fifty-one
percent (51%) of the outstanding principal amount of the Notes on such date; and
if no such principal is outstanding, the Banks whose aggregate Commitments
constitutes at least fifty-one percent (51%) of the Total Commitment.
MATERIAL ADVERSE EFFECT. A material adverse effect on (a) the business,
condition (financial or otherwise), operations performance, properties or
prospects of the Borrower and its Subsidiaries taken as a whole, (b) the rights
or remedies of the Agent or any Bank under any Loan Document, or (c) the ability
of the Borrower or any Guarantor to perform its Obligations under the Loan
Documents.
MATERIAL SUBSIDIARY. Any Subsidiary to which more than five percent
(5%) of either (a) Consolidated Tangible Net Worth or (b) Consolidated Gross
Revenues (not including intercompany transfers) is allocable. Existing Material
Subsidiaries as of the Closing Date and the contribution of each such Material
Subsidiary to Consolidated Tangible Net Worth and Consolidated Gross Revenues as
of December 31, 1996, are as set forth on SCHEDULE 1(A) hereto.
MAXIMUM DRAWING AMOUNT. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
MAXIMUM UNUSED COMMITMENT. With respect to any Bank at any time, (a)
such Bank's Commitment at such time MINUS (b) the sum of (i) the aggregate
principal amount of all Revolving Credit Loans and Swing Line Loans made (in
each case) by such Bank and which are outstanding at such time and Unpaid
Reimbursement Obligations owing to such Bank, PLUS (ii) without duplication,
such Bank's pro rata share of the Maximum Drawing Amount of all Letters of
Credit issued and outstanding at such time.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of
ss.3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
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NET CASH PROCEEDS. With respect to any sale of stock, partnership
interests or other equity issuances, the excess of the gross cash proceeds
received by such Person for such issuance after deduction of all reasonable and
customary transaction expenses (including without limitation, underwriting
discounts and commissions) actually incurred in connection with such a sale or
other issuance.
NET CASH SALE PROCEEDS. The net cash proceeds received by a Person in
respect of any Asset Sale, less the sum of (a) all reasonable out-of-pocket
fees, commissions and other reasonably and customary expenses actually incurred
in connection with such Asset Sale, including the amount of income, franchise,
sales and other applicable taxes required to be paid by such Person in
connection with such Asset Sale, and (b) the aggregate amount of cash so
received by such Person which is required to be used to retire (in whole or in
part) any Indebtedness (other than under the Loan Documents) of such Person
permitted by this Credit Agreement that was secured by a lien or security
interest permitted by this Credit Agreement having priority over the liens and
security interests (if any) of the Agent (for the benefit of the Agent and the
Banks) with respect to such assets transferred and which is required to be
repaid in whole or in part (which repayment, in the case of any other revolving
credit arrangement or multiple advance arrangement, reduces the commitment
thereunder) in connection with such Asset Sale.
NON-AFFECTED BANK. See sec.6.12.
NOTES. The Term Notes and the Revolving Credit Notes.
NOTICE OF SWING LINE BORROWING. See ss.2.2.2 hereof.
OBLIGATIONS. All indebtedness, obligations and liabilities of the
Borrower and its Subsidiaries to any of the Banks and the Agent, individually or
collectively, existing on the date of this Credit Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or incurred under this
Credit Agreement or any of the other Loan Documents or in respect of any of the
Loans made or Reimbursement Obligations incurred or any of the Notes, Letter of
Credit Application, Letter of Credit or other instruments at any time evidencing
any thereof.
OUTSTANDING. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PBGC. The Pension Benefit Guaranty Corporation created by sec.4002 of
ERISA and any successor entity or entities having similar responsibilities.
PERMITTED ACQUISITIONS. See ss.10.5.1.
PERMITTED LIENS. Liens, security interests and other encumbrances
permitted by sec.10.2.
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PERSON. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
PRO FORMA BASIS. In connection with a Permitted Acquisition, the Total
Funded Indebtedness and EBITDA for calculation of the Leverage Ratio for the
four fiscal quarters immediately preceding the fiscal quarter in which such
Permitted Acquisition occurred with reference to the historical financial
results of the Person or assets so acquired and the Borrower and its
Subsidiaries for the applicable Test Period after giving effect on a PRO FORMA
basis to such Permitted Acquisition and assuming that such Permitted Acquisition
had been consummated at the beginning of such Test Period in the manner
described in (i), (ii) and (iii) below:
(i) all Indebtedness (whether under this Credit Agreement or
otherwise) and any other balance sheet adjustments incurred or made in
connection with the Permitted Acquisition shall be deemed to have been
incurred or made on the first day of the Test Period, and all
Indebtedness of the Person acquired or to be acquired in such Permitted
Acquisition which was or will have been repaid in connection with the
consummation of the Permitted Acquisition shall be deemed to have been
repaid concurrently with the incurrence of the Indebtedness incurred in
connection with the Permitted Acquisition;
(ii) all Indebtedness assumed to have been incurred pursuant
to the preceding clause (i) shall be deemed to have borne interest
during such Test Period at the sum of (a) the Eurodollar Rate for
Eurodollar Rate Loans having an Interest Period of one month in effect
on the date of determination PLUS (b) the Applicable Margin for
Revolving Credit Loans or the Term Loan, as the case may be, then in
effect (after giving effect to the Permitted Acquisition on a pro forma
basis); and
(iii) other reasonable cost savings, expenses and other income
statement or operating statement adjustments which are attributable to
the change in ownership and/or management resulting from such Permitted
Acquisition as may be approved by the Majority Banks in writing (which
approval shall not be unreasonably withheld) shall be deemed to have
been realized on the first day of the Test Period.
RATE ADJUSTMENT PERIOD. See the definition of Applicable Margin.
REAL ESTATE. All real property at any time owned or leased (as lessee
or sublessee) by the Borrower or any of its Subsidiaries.
RECORD. The grid attached to a Note, or the continuation of such grid,
or any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note.
REFERENCE BANK. BKB.
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REIMBURSEMENT OBLIGATION. The Borrower's obligation to reimburse the
Agent and the Banks on account of any drawing under any Letter of Credit as
provided in sec.5.2.
REVOLVING CREDIT LOAN MATURITY DATE. April 29, 2000.
REVOLVING CREDIT LOANS. Revolving credit loans made or to be made by
the Banks to the Borrower pursuant to sec.2.
REVOLVING CREDIT NOTE RECORD. A Record with respect to a Revolving
Credit Note.
REVOLVING CREDIT NOTES. See sec.2.5.
SUBSIDIARY. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes) of the outstanding Voting Stock.
SWING LINE BANK. BKB.
SWING LINE BORROWING. A borrowing consisting of a Swing Line Loan made
by the Swing Line Bank.
SWING LINE FACILITY. See sec.2.2.1 hereof.
SWING LINE LOAN. Any loan made by (a) any Swing Line Bank pursuant to
sec.2.2.1 or (b) any Bank pursuant to sec.2.2.2.
TERM LOAN. The term loan made or to be made by the Banks to the
Borrower on the Conversion Date as contemplated by sec.4.1.
TERM LOAN MATURITY DATE. March 31, 2002.
TERM NOTES. See sec.4.2.
TERM NOTE RECORD. A Record with respect to a Term Note.
TEST PERIOD. The period of all fiscal quarters included in any covenant
calculation and occurring prior to the date of such Permitted Acquisition as set
forth in the definition of "Pro Forma Basis".
TOTAL COMMITMENT. The sum of the Commitments of the Banks, as in effect
from time to time.
TOTAL FUNDED INDEBTEDNESS. All Indebtedness of the Borrower and its
Subsidiaries for borrowed money, purchase money Indebtedness and with respect to
Capitalized Leases, determined on a consolidated basis in accordance with
generally accepted accounting principles.
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TYPE. As to any Revolving Credit Loan or all or any portion of the Term
Loan, its nature as a Base Rate Loan or a Eurodollar Rate Loan.
UNIFORM CUSTOMS. With respect to any Letter of Credit, the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500 or any successor version thereto adopted
by the Agent in the ordinary course of its business as a letter of credit issuer
and in effect at the time of issuance of such Letter of Credit.
UNPAID REIMBURSEMENT OBLIGATION. Any Reimbursement Obligation for which
the Borrower does not reimburse the Agent and the Banks on the date specified
in, and in accordance with, sec.5.2.
VOTING STOCK. Stock or similar interests, of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include
such document or agreement as amended, modified or supplemented from
time to time in accordance with its terms and the terms of this Credit
Agreement.
(b) The singular includes the plural and the plural includes
the singular.
(c) A reference to any law includes any amendment or
modification to such law.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein have the
meanings assigned to them by generally accepted accounting principles
applied on a consistent basis by the accounting entity to which they
refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts, have
the meanings assigned to them therein, with the term "instrument" being
that defined under Article 9 of the Uniform Commercial Code.
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(h) Reference to a particular "sec." refers to that section of
this Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Credit Agreement as a whole and not to
any particular section or subdivision of this Credit Agreement.
2. THE REVOLVING CREDIT FACILITY.
2.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth
in this Credit Agreement, each of the Banks severally agrees to lend to the
Borrower and the Borrower may borrow, repay, and reborrow from time to time
between the Closing Date and the Revolving Credit Loan Maturity Date upon notice
by the Borrower to the Agent given in accordance with sec.2.7, such sums as are
requested by the Borrower up to a maximum aggregate amount outstanding (after
giving effect to all amounts requested) at any one time equal to such Bank's
Commitment MINUS the amount by which the Swing Line Loans outstanding at such
time shall be deemed to have used such Bank's Commitment pursuant to sec.2.10
hereof, MINUS such Bank's Commitment Percentage of the sum of the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations, PROVIDED that the sum
of the outstanding amount of the Revolving Credit Loans (after giving effect to
all amounts requested) PLUS the outstanding amount of the Swing Line Loans, PLUS
the Maximum Drawing Amount and all Unpaid Reimbursement Obligations shall not at
any time exceed the Total Commitment. The Revolving Credit Loans shall be made
PRO RATA in accordance with each Bank's Commitment Percentage. Each request for
a Revolving Credit Loan hereunder shall constitute a representation and warranty
by the Borrower that the conditions set forth in sec.12 and sec.13, in the case
of the initial Revolving Credit Loans to be made on the Closing Date, and
sec.13, in the case of all other Revolving Credit Loans, have been satisfied on
the date of such request.
2.2. THE SWING LINE.
2.2.1. THE SWING LINE LOANS. The Borrower may request the
Swing Line Bank to make, and the Swing Line Bank may, if in its sole
discretion it elects to do so, and without any commitment whatsoever by
the Swing Line Bank to do so, make, on the terms and conditions
hereinafter set forth, Swing Line Loans to the Borrower from time to
time on any Business Day during the period from the date hereof until
the Revolving Credit Loan Maturity Date in an aggregate amount for the
Borrower not to exceed at any time outstanding $10,000,000 (the "Swing
Line Facility"), PROVIDED, HOWEVER, that while the outstanding amount
of all outstanding Swing Line Loans and outstanding Revolving Credit
Loans made by a Bank may exceed such Bank's Commitment, the aggregate
amount of all Swing Line Loans outstanding shall not exceed the Total
Commitment LESS all Revolving Credit Loans outstanding, LESS the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations with
respect to all Letters of Credit. No Swing Line Loan shall be used for
the purpose of funding the payment of principal
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of any other Swing Line Loan. Each Swing Line Borrowing shall be in an
amount of $100,000 or an integral multiple of $100,000 in excess
thereof and shall consist of a Base Rate Loan (and may not be a
Eurodollar Rate Loan). Within the limits of the Swing Line Facility and
within the limits referred to in clause (b) above, so long as the Swing
Line Bank, in its sole discretion, elects to make Swing Line Loans, a
Borrower may borrow under this sec.2.2.1, repay pursuant to sec.3.1.2
or repay pursuant to sec.3.3(b) and reborrow under this sec.2.2.1.
2.2.2. NOTICE. Each Swing Line Borrowing shall be made on
notice, given not later than 1:00 P.M. (Boston time) on the date of the
proposed Swing Line Borrowing, by the Borrower to the Swing Line Bank
and the Agent. The Agent shall immediately advise the Swing Line Bank
of the available amount of the Swing Line Facility. Each such notice of
a Swing Line Borrowing (a "Notice of Swing Line Borrowing") shall be by
telephone, telex or telecopier, confirmed immediately in writing,
specifying therein the requested (a) date of such borrowing, (b) amount
of such borrowing and (c) maturity of such borrowing (which maturity
shall be no later than the seventh day after the requested date of such
borrowing). If, in its sole discretion, it elects to make the requested
Swing Line Loan, the Swing Line Bank will make the amount of the
requested Swing Line Loan available to the Agent at the Agent's Head
Office, in same day funds. After the Agent's receipt of such funds and
upon fulfillment of the applicable conditions set forth in secs.12 and
13, the Agent will make such funds available to the Borrower in such
manner as the Borrower and the Agent may agree. Upon written demand by
the Swing Line Bank with an outstanding Swing Line Loan (or, if no
demand has been made on or prior to the Conversion Date, on the
Conversion Date), with a copy of such demand to the Agent, each other
Bank shall purchase from the Swing Line Bank, and the Swing Line Bank
shall sell and assign to each such other Bank, such other Bank's PRO
RATA share (determined by its Commitment Percentage) of such
outstanding Swing Line Loan as of the date of such demand, by making
available on behalf of its Domestic Lending Office to the Agent for the
account of the Swing Line Bank, in immediately available funds, an
amount equal to the portion of the outstanding principal amount of such
Swing Line Loan to be purchased by such Bank. The Borrower, by giving a
Notice of Swing Line Borrowing hereby agrees to each such sale and
assignment. Each Bank agrees to purchase its PRO RATA share (determined
by its Commitment Percentage) of an outstanding Swing Line Loan on (a)
the Business Day on which demand therefor is made by the Swing Line
Bank which made such Swing Line Loan, PROVIDED that notice of such
demand is given not later than 1:00 P.M. (Boston time) on such Business
Day or (b) the first Business Day next succeeding such demand if notice
of such demand is given after such time. Upon any such assignment by
the Swing Line Bank to any other Bank of a portion of a Swing Line
Loan, such Swing Line Bank represents and warrants to such other Bank
that such Swing Line Bank is the legal and beneficial owner of such
interest being assigned by it, but makes no other
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representation or warranty and assumes no responsibility with respect
to such Swing Line Loan, the Loan Documents or the Borrower or any
Guarantor. If and to the extent that any Bank shall not have so made
the amount of such Swing Line Loan available to the Agent, such Bank
agrees to pay to the Agent for the account of the Swing Line Bank
forthwith on demand by the Swing Line Bank such amount together with
interest thereon, for each day from the date of demand by such Swing
Line Bank until the date such amount is paid to the Agent, at the Base
Rate. If such Bank shall pay to the Agent such amount for the account
of the Swing Line Bank on any Business Day, such amount so paid in
respect of principal shall constitute a Swing Line Loan made by such
Bank on such Business Day for purposes of this Credit Agreement, and
the outstanding principal amount of the Swing Line Loan made by the
Swing Line Bank shall be reduced by such amount on such Business Day.
2.2.3. IRREVOCABLE NOTICE. Each Notice of Swing Line Borrowing
shall be irrevocable and binding on the Borrower.
2.2.4. PURCHASE OF SWING LINE LOAN. Each Bank severally agrees
that it shall be absolutely liable, without regard to the occurrence of
any Default or Event of Default or any other condition precedent
whatsoever, to the extent of such Bank's PRO RATA share (determined by
its Bank's Commitment Percentage) of the outstanding Swing Line Loans,
to purchase from the Swing Line Bank on demand such Bank's PRO RATA
share (as so determined) of such outstanding Swing Line Loan as of the
date of such demand; PROVIDED, HOWEVER a Bank shall not be obligated to
purchase from the Swing Line Bank its PRO rata share of any Swing Line
Loan made by the Swing Line Bank after the occurrence and during the
continuation of an Event of Default and after the Swing Line Bank
received written notice from such Bank of such Bank's election not to
fund any Loans after the date of such notice as a result of the
occurrence and continuation of such Event of Default.
2.3. COMMITMENT FEE. The Borrower agrees to pay to the Agent for the
applicable accounts of each of the respective Banks a commitment fee calculated
at the applicable Commitment Fee Rate on the average daily amount Maximum Unused
Commitment of such applicable Bank during each calendar quarter or portion
thereof from the Closing Date to the Revolving Credit Loan Maturity Date. The
commitment fee shall be payable quarterly in arrears on the first day of each
calendar quarter for the immediately preceding calendar quarter commencing on
the first such date following the date hereof, with a final payment on the
Revolving Credit Loan Maturity Date or any earlier date on which the Commitments
shall terminate.
2.4. REDUCTION OF TOTAL COMMITMENT. The Borrower shall have the right
at any time and from time to time upon seven (7) Business Days prior written
notice to the Agent to reduce by $10,000,000 or a greater integral multiple of
$5,000,000 in excess thereof or terminate entirely the Total Commitment,
whereupon the
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Commitments of the Banks shall be reduced PRO RATA in accordance with their
respective Commitment Percentages of the amount specified in such notice or, as
the case may be, terminated. Promptly after receiving any notice of the Borrower
delivered pursuant to this sec.2.4, the Agent will notify the Banks of the
substance thereof. Upon the effective date of any such reduction or termination,
the Borrower shall pay to the Agent for the respective accounts of the Banks the
full amount of any commitment fee then accrued on the amount of the reduction.
No reduction or termination of the Commitments may be reinstated.
2.5. THE REVOLVING CREDIT NOTES. The Revolving Credit Loans shall be
evidenced by separate promissory notes of the Borrower in substantially the form
of EXHIBIT B hereto (each a "Revolving Credit Note"), dated as of the Closing
Date and completed with appropriate insertions. One Revolving Credit Note shall
be payable to the order of each Bank in a principal amount equal to such Bank's
Commitment or, if less, the outstanding amount of all Revolving Credit Loans
made by such Bank, plus interest accrued thereon, as set forth below. The
Borrower irrevocably authorizes each Bank to make or cause to be made, at or
about the time of the Drawdown Date of any Revolving Credit Loan or at the time
of receipt of any payment of principal on such Bank's Revolving Credit Note, an
appropriate notation on such Bank's Revolving Credit Note Record reflecting the
making of such Revolving Credit Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Revolving Credit Loans set forth on such
Bank's Revolving Credit Note Record shall be PRIMA FACIE evidence of the
principal amount thereof owing and unpaid to such Bank, but the failure to
record, or any error in so recording, any such amount on such Bank's Revolving
Credit Note Record shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any Revolving Credit Note to make payments of
principal of or interest on any Revolving Credit Note when due.
2.6. INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise provided
in sec.6.11,
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the Base Rate PLUS the
Applicable Margin.
(b) Each Eurodollar Rate Loan shall bear interest for the
period commencing with the Drawdown Date thereof and ending on the last
day of the Interest Period with respect thereto at the Eurodollar Rate
determined for such Interest Period PLUS the Applicable Margin.
(c) The Borrower promises to pay interest on each Revolving
Credit Loan and Swing Line Loan in arrears on each Interest Payment
Date with respect thereto.
2.7. REQUESTS FOR REVOLVING CREDIT LOANS. The Borrower shall give to
the Agent written notice in the form of EXHIBIT A hereto (or telephonic notice
confirmed
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in a writing in the form of EXHIBIT A hereto) of each Revolving Credit Loan
requested hereunder (a "Loan Request") no less than (a) one (1) Business Day
prior to the proposed Drawdown Date of any Base Rate Loan and (b) three (3)
Eurodollar Business Days prior to the proposed Drawdown Date of any Eurodollar
Rate Loan. Each such notice shall specify (i) the principal amount of the
Revolving Credit Loan requested, (ii) the proposed Drawdown Date of such
Revolving Credit Loan, (iii) the Interest Period for such Revolving Credit Loan
and (iv) the Type of such Revolving Credit Loan. Promptly upon receipt of any
such notice, the Agent shall notify each of the Banks thereof. Each Loan Request
shall be irrevocable and binding on the Borrower and shall obligate the Borrower
to accept the Revolving Credit Loan requested from the Banks on the proposed
Drawdown Date. Each Loan Request for a Eurodollar Rate Loan shall be in a
minimum aggregate amount of $3,000,000 or an integral multiple of $1,000,000 in
excess thereof. Each Loan Request for a Base Rate Loan shall be in a minimum
aggregate amount of $1,000,000 or in integral multiple thereof.
2.8. CONVERSION OPTIONS.
2.8.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN.
The Borrower may elect from time to time to convert any outstanding
Revolving Credit Loan to a Revolving Credit Loan of another Type,
PROVIDED that (a) with respect to any such conversion of a Revolving
Credit Loan to a Base Rate Loan, the Borrower shall give the Agent at
least one (1) Business Day prior written notice of such election; (b)
with respect to any such conversion of a Base Rate Loan to a Eurodollar
Rate Loan, the Borrower shall give the Agent at least three (3)
Eurodollar Business Days prior written notice of such election; (c)
with respect to any such conversion of a Eurodollar Rate Loan into a
Revolving Credit Loan of another Type, such conversion shall only be
made on the last day of the Interest Period with respect thereto and
(d) no Loan may be converted into a Eurodollar Rate Loan when any
Default or Event of Default has occurred and is continuing. On the date
on which such conversion is being made each Bank shall take such action
as is necessary to transfer its Commitment Percentage of such Revolving
Credit Loans to its Domestic Lending Office or its Eurodollar Lending
Office, as the case may be. All or any part of outstanding Revolving
Credit Loans of any Type may be converted into a Revolving Credit Loan
of another Type as provided herein, PROVIDED that any partial
conversion shall be in an aggregate principal amount of $1,000,000 or a
whole multiple thereof. Each Conversion Request relating to the
conversion of a Revolving Credit Loan to a Eurodollar Rate Loan shall
be irrevocable by the Borrower.
2.8.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any
Revolving Credit Loan of any Type may be continued as a Revolving
Credit Loan of the same Type upon the expiration of an Interest Period
with respect thereto by compliance by the Borrower with the notice
provisions contained in sec.2.8.1; PROVIDED that no Eurodollar Rate
Loan may be continued as such when any Default or Event of Default has
occurred and is continuing, but
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shall be automatically converted to a Base Rate Loan on the last day of
the first Interest Period relating thereto ending during the
continuance of any Default or Event of Default of which officers of the
Agent active upon the Borrower's account have actual knowledge. In the
event that the Borrower fails to provide any such notice with respect
to the continuation of any Eurodollar Rate Loan as such, then such
Eurodollar Rate Loan shall be automatically converted to a Base Rate
Loan on the last day of the first Interest Period relating thereto. The
Agent shall notify the Banks promptly when any such automatic
conversion contemplated by this sec.2.8 is scheduled to occur.
2.8.3. EURODOLLAR RATE LOANS. Any conversion to or from
Eurodollar Rate Loans shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate
principal amount of all Eurodollar Rate Loans having the same Interest
Period shall not be less than $5,000,000 or a whole multiple of
$1,000,000 in excess thereof. In addition, there shall not be more than
ten (10) Eurodollar Rate Loans outstanding at any one time.
2.9. FUNDS FOR REVOLVING CREDIT LOAN.
2.9.1. FUNDING PROCEDURES. Not later than 11:00 a.m. (Boston
time) on the proposed Drawdown Date of any Revolving Credit Loans, each
of the Banks will make available to the Agent, at the Agent's Head
Office, in immediately available funds, the amount of such Bank's
Commitment Percentage of the amount of the requested Revolving Credit
Loans. Upon receipt from each Bank of such amount, and upon receipt of
the documents required by secs.12 and 13 and the satisfaction of the
other conditions set forth therein, to the extent applicable, the Agent
will make available to the Borrower the aggregate amount of such
Revolving Credit Loans made available to the Agent by the Banks. The
failure or refusal of any Bank to make available to the Agent at the
aforesaid time and place on any Drawdown Date the amount of its
Commitment Percentage of the requested Revolving Credit Loans shall not
relieve any other Bank from its several obligation hereunder to make
available to the Agent the amount of such other Bank's Commitment
Percentage of any requested Revolving Credit Loans.
2.9.2. ADVANCES BY AGENT. The Agent may, unless notified to
the contrary by any Bank prior to a Drawdown Date, assume that such
Bank has made available to the Agent on such Drawdown Date the amount
of such Bank's Commitment Percentage of the Revolving Credit Loans to
be made on such Drawdown Date, and the Agent may (but it shall not be
required to), in reliance upon such assumption, make available to the
Borrower a corresponding amount. If any Bank makes available to the
Agent such amount on a date after such Drawdown Date, such Bank shall
pay to the Agent on demand an amount equal to the product of (a) the
average
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computed for the period referred to in clause (c) 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
(b) the amount of such Bank's Commitment Percentage of such Revolving
Credit Loans, TIMES (c) a fraction, the numerator of which is the
number of days that elapse from and including such Drawdown Date to the
date on which the amount of such Bank's Commitment Percentage of such
Revolving Credit Loans shall become immediately available to the Agent,
and the denominator of which is 365. A statement of the Agent submitted
to such Bank with respect to any amounts owing under this paragraph
shall be PRIMA FACIE evidence of the amount due and owing to the Agent
by such Bank. If the amount of such Bank's Commitment Percentage of
such Revolving Credit Loans is not made available to the Agent by such
Bank within three (3) Business Days following such Drawdown Date, the
Agent shall be entitled to recover such amount from the Borrower on
demand, with interest thereon at the rate per annum applicable to the
Revolving Credit Loans made on such Drawdown Date.
2.10. PRO RATA TREATMENT. For purposes of determining the applicable
available unused Commitments of the respective Banks at any time, each
outstanding Swing Line Loan shall be deemed to have utilized the Commitments of
the Banks (including those Banks which are not the Swing Line Bank actually
making such Swing Line Loan) PRO RATA in accordance with such respective
Commitments.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS
AND SWING LINE LOANS.
3.1. MATURITY.
3.1.1. REVOLVING CREDIT LOANS. The Borrower promises to pay on
the Revolving Credit Loan Maturity Date, and there shall become
absolutely due and payable on the Revolving Credit Loan Maturity Date,
all of the Revolving Credit Loans outstanding on such date, together
with any and all accrued and unpaid interest thereon.
3.1.2. SWING LINE LOANS. The Borrower shall repay to the Agent
for the account of the Swing Line Bank and each other Bank which has
made a Swing Line Loan then outstanding the principal amount of each
Swing Line Loan made to the Borrower on the earlier of the maturity
date specified in the applicable Notice of Swing Line Borrowing (which
maturity shall be no later than the seventh day after the requested
date of such borrowing) and the Revolving Credit Loan Maturity Date.
3.2. MANDATORY REPAYMENTS OF REVOLVING CREDIT LOANS. If at any time the
sum of the outstanding amount of the Revolving Credit Loans, the Swing Line
Loans the Maximum Drawing Amount and all Unpaid Reimbursement Obligations
exceeds the Total Commitment, then the Borrower shall immediately pay the
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amount of such excess to the Agent for the respective accounts of the Banks for
application: first, to any Swing Line Loan; second, to any Unpaid Reimbursement
Obligations; third, to the Revolving Credit Loans; and fourth, to provide to the
Agent cash collateral for Reimbursement Obligations as contemplated by
sec.5.2(b) and (c). Each payment of any Unpaid Reimbursement Obligations or
prepayment of Revolving Credit Loans shall be allocated among the Banks, in
proportion, as nearly as practicable, to each Reimbursement Obligation or (as
the case may be) the respective unpaid principal amount of each Bank's Revolving
Credit Note, with adjustments to the extent practicable to equalize any prior
payments or repayments not exactly in proportion.
3.3. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS AND SWING LINE
LOANS. The Borrower shall have the right, at its election, to repay the
outstanding amount of the Revolving Credit Loans and Swing Line Loans, as a
whole or in part, at any time without penalty or premium, PROVIDED that any full
or partial prepayment of the outstanding amount of any Eurodollar Rate Loans
pursuant to this sec.3.3 which is made on a day other than the last day of the
Interest Period relating thereto shall be subject to the payment by the Borrower
of any applicable costs associated with such repayment as set forth in sec.6.10
hereof. The Borrower shall give the Agent, no later than 1:00 p.m., Boston time
on the date of any proposed prepayment, prior written or telephonic notice of
any proposed prepayment pursuant to this sec.3.3 of Swing Line Loans, and no
later than 10:00 a.m., Boston time, at least one (1) Business Days prior written
notice of any proposed prepayment pursuant to this sec.3.3 of Base Rate Loans,
and three (3) Eurodollar Business Days notice of any proposed prepayment
pursuant to this sec.3.3 of Eurodollar Rate Loans, in each case specifying the
proposed date of prepayment of Revolving Credit Loans or Swing Line Loans and
the principal amount to be prepaid. Each such partial prepayment of (a) the
Revolving Credit Loans shall be in an integral multiple of $1,000,000 and (b)
the Swing Line Loans shall be in the principal amount of $1,000,000, shall be
accompanied by the payment of accrued interest on the principal prepaid to the
date of prepayment and shall be applied, in the absence of instruction by the
Borrower, first to the principal of Base Rate Loans and then to the principal of
Eurodollar Rate Loans. Each partial prepayment of Revolving Credit Loans or
Swing Line Loans, as the case may be, shall be allocated among the Banks, in
proportion, as nearly as practicable, to the respective unpaid principal amount
of Revolving Credit Loans or Swing Line Loans, as the case may be, under each
Bank's Revolving Credit Note, with adjustments to the extent practicable to
equalize any prior repayments not exactly in proportion.
4. THE TERM LOAN.
4.1. CONVERSION OF REVOLVING CREDIT LOANS AND SWING LINE LOANS; THE
TERM LOAN. Subject to the terms and conditions set forth in this Credit
Agreement, including, without limitation, the satisfaction of the conditions set
forth in sec.13 hereof and the execution and delivery by the Borrower of the
Term Notes to the Banks, on the Conversion Date the aggregate amount of the
outstanding Revolving Credit Loans and Swing Line Loans shall be converted into
a Term Loan in the
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aggregate principal amount equal to the aggregate outstanding principal balance
of the Revolving Credit Loans and the Swing Line Loans on such date, held
severally by the Banks in accordance with their Commitment Percentages. The Term
Loan outstanding after conversion shall be evidenced by the separate joint and
several Term Notes (the "Term Notes") of the Borrower payable to the order of
each Bank, each dated as of the Conversion Date and in substantially the form of
EXHIBIT B hereto, completed with appropriate insertions. On the Conversion Date,
the Borrower shall pay to the Agent for the PRO RATA accounts of the Banks, all
interest accrued to such date on the Revolving Credit Loans and shall pay to the
Agent for the account of the Swing Line Bank and any Bank making a Swing Line
Loan hereunder all interest accrued to such date on the Swing Line Loans,
together with any Unpaid Reimbursement Obligations, any commitment fees and
other fees payable to the Agent and the Banks hereunder and, as soon as
reasonably practicable after such payment, each Bank shall surrender to the
Borrower its Revolving Credit Note against receipt of its Term Note evidencing
the amount of the outstanding Revolving Credit Loans and Swing Line Loans so
converted.
4.2. THE TERM NOTES. Each Term Note shall represent the obligation of
the Borrower to pay to such Bank such principal amount or, if less, the
outstanding amount of such Bank's Commitment Percentage of the Term Loan, plus
interest accrued thereon, as set forth below. The Borrower irrevocably
authorizes each Bank to make or cause to be made a notation on such Bank's Term
Note Record reflecting the original principal amount of such Bank's Commitment
Percentage of the Term Loan and, at or about the time of such Bank's receipt of
any principal payment on such Bank's Term Note, an appropriate notation on such
Bank's Term Note Record reflecting such payment. The aggregate unpaid amount set
forth on such Bank's Term Note Record shall be PRIMA FACIE evidence of the
principal amount thereof owing and unpaid to such Bank, but the failure to
record, or any error in so recording, any such amount on such Bank's Term Note
Record shall not affect the obligations of the Borrower hereunder or under any
Term Note to make payments of principal of and interest on any Term Note when
due.
4.3. REPAYMENTS OF THE TERM LOAN.
4.3.1. SCHEDULE OF INSTALLMENT PAYMENTS OF PRINCIPAL OF TERM
LOAN. The Borrower promises to pay to the Agent for the account of the
Banks the principal amount of the Term Loan in eight (8) consecutive
quarterly installments, each equal as near as possible to 1/8th of the
principal amount of the Term Loan outstanding on the Conversion Date,
such installments to be due and payable on the last day of each fiscal
quarter of the Borrower, commencing with the fiscal quarter ending June
30, 2000, with a final payment on the Term Loan Maturity Date in an
amount equal to the unpaid balance of the Term Loan.
4.3.2. PROCEEDS. On and after the Conversion Date,
concurrently with the receipt by the Borrower or any of its
Subsidiaries of (a) Net Cash Sale Proceeds from Assets Sales or other
dispositions of assets (other than the sale
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or disposition of assets in the ordinary course of business consistent
with past practices), (b) Net Cash Proceeds from the sale of stock,
partnership interests or other equity issuances of the Borrower or any
of its Subsidiaries or (c) cash proceeds received from insurance claims
received by the Borrower or any of its Subsidiaries which have not been
applied by the Borrower or such Subsidiary within 180 days of receipt
by such Person of such proceeds (PROVIDED, HOWEVER, if a Default or
Event of Default has occurred and is continuing, such proceeds shall be
immediately paid to the Agent), the Borrower shall pay to the Agent for
the respective accounts of the Banks an amount equal to 100% of such
proceeds, to be applied against the scheduled installments of principal
on the Term Loan in the inverse order of maturity.
4.4. OPTIONAL PREPAYMENT OF TERM LOAN. The Borrower shall have the
right at any time to prepay the Term Notes on or before the Term Loan Maturity
Date, as a whole, or in part, upon not less than seven (7) Business Days prior
written notice to the Agent, without premium or penalty, PROVIDED that (a) each
partial prepayment shall be in the principal amount of $5,000,000 or an integral
multiple thereof, (b) any portion of the Term Loan bearing interest at the
Eurodollar Rate which has been prepaid pursuant to this sec.4.4 on any day other
than the last day of the Interest Period relating thereto shall be subject to
the payment by the Borrower of any applicable costs associated with such
prepayment as set forth in sec.6.10 hereof, and (c) each partial prepayment
shall be allocated among the Banks, in proportion, as nearly as practicable, to
the respective outstanding amount of each Bank's Term Note, with adjustments to
the extent practicable to equalize any prior prepayments not exactly in
proportion. Any prepayment of principal of the Term Loan shall include all
interest accrued to the date of prepayment and shall be applied against the
scheduled installments of principal due on the Term Loan in the inverse order
of maturity. No amount repaid with respect to the Term Loan may be reborrowed.
4.5. INTEREST ON TERM LOAN.
4.5.1. INTEREST RATES. Except as otherwise provided in
sec.6.11, the Term Loan shall bear interest during each Interest Period
relating to all or any portion of the Term Loan at the following rates:
(a) To the extent that all or any portion of the Term
Loan bears interest during such Interest Period at the Base
Rate, the Term Loan or such portion shall bear interest during
such Interest Period at the Base Rate PLUS the Applicable
Margin.
(b) To the extent that all or any portion of the Term
Loan bears interest during such Interest Period at the
Eurodollar Rate, the Term Loan or such portion shall bear
interest during such Interest Period at the Eurodollar Rate
then in effect PLUS the Applicable Margin.
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The Borrower promises to pay interest on the Term Loan or any portion
thereof outstanding during each Interest Period in arrears on each
Interest Payment Date applicable to such Interest Period.
4.5.2. NOTIFICATION BY BORROWER. The Borrower shall notify the
Agent, such notice to be irrevocable, at least four (4) Eurodollar
Business Days prior to the Drawdown Date of the Term Loan if all or any
portion of the Term Loan is to bear interest at the Eurodollar Rate.
After the Term Loan has been made, the provisions of sec.2.8 shall
apply MUTATIS MUTANDIS with respect to all or any portion of the Term
Loan so that the Borrower may have the same interest rate options with
respect to all or any portion of the Term Loan as it would be entitled
to with respect to the Revolving Credit Loans.
4.5.3. AMOUNTS, ETC. Any portion of the Term Loan bearing
interest at the Eurodollar Rate relating to any Interest Period shall
be in the amount of $5,000,000 or a whole multiple or $1,000,000 in
excess thereof. No Interest Period relating to the Term Loan or any
portion thereof bearing interest at the Eurodollar Rate shall extend
beyond the date on which a regularly scheduled installment payment of
the principal of the Term Loan is to be made unless a portion of the
Term Loan at least equal to such installment payment has an Interest
Period ending on such date or is then bearing interest at the Base
Rate.
5. LETTERS OF CREDIT.
5.1. LETTER OF CREDIT COMMITMENTS.
5.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the
terms and conditions hereof and the execution and delivery by the
Borrower of a letter of credit application on the Agent's customary
form (a "Letter of Credit Application"), the Agent on behalf of the
Banks and in reliance upon the agreement of the Banks set forth in
sec.5.1.4 and upon the representations and warranties of the Borrower
contained herein, agrees, in its individual capacity, to issue, extend
and renew for the account of the Borrower one or more standby or
documentary letters of credit (individually, a "Letter of Credit"), in
such form as may be requested from time to time by the Borrower and
agreed to by the Agent; PROVIDED, HOWEVER, that, after giving effect to
such request, (a) the sum of the aggregate Maximum Drawing Amount and
all Unpaid Reimbursement Obligations shall not exceed $15,000,000 at
any one time and (b) the sum of (i) the Maximum Drawing Amount on all
Letters of Credit, (ii) all Unpaid Reimbursement Obligations, and (iii)
the amount of all Revolving Credit Loans and Swing Line Loans
outstanding shall not exceed the Total Commitment.
5.1.2. LETTER OF CREDIT APPLICATIONS. Each Letter of Credit
Application shall be completed to the satisfaction of the Agent. In the
event that any provision of any Letter of Credit Application shall be
inconsistent
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with any provision of this Credit Agreement, then the provisions of
this Credit Agreement shall, to the extent of any such inconsistency,
govern.
5.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit
issued, extended or renewed hereunder shall, among other things, (a)
provide for the payment of sight drafts for honor thereunder when
presented in accordance with the terms thereof and when accompanied by
the documents described therein, if any, and (b) have an expiry date no
later than the date which is the earlier to occur of (i) one year after
the date of issuance of such Letter of Credit and (ii) fourteen (14)
days (or, if the Letter of Credit is confirmed by a confirmer or
otherwise provides for one or more nominated persons, forty-five (45)
days) prior to the Revolving Credit Loan Maturity Date. Each Letter of
Credit so issued, extended or renewed shall be subject to the Uniform
Customs.
5.1.4. REIMBURSEMENT OBLIGATIONS OF BANKS. Each Bank severally
agrees that it shall be absolutely liable, without regard to the
occurrence of any Default or Event of Default or any other condition
precedent whatsoever, to the extent of such Bank's Commitment
Percentage, to reimburse the Agent on demand for the amount of each
draft paid by the Agent under each Letter of Credit to the extent that
such amount is not reimbursed by the Borrower pursuant to sec.5.2 (such
agreement for a Bank being called herein the "Letter of Credit
Participation" of such Bank); PROVIDED, HOWEVER, a Bank shall not be
required to reimburse the Agent for any draft paid by the Agent for any
Letter of Credit issued by the Agent after the occurrence and during
the continuance of an Event of Default and after the Agent received
written notice from such Bank of such Bank's election not to fund any
Loans after the date of such notice as a result of the occurrence and
continuation of such Event of Default.
5.1.5. PARTICIPATIONS OF BANKS. Each such payment made by a
Bank shall be treated as the purchase by such Bank of a participating
interest in the Borrower's Reimbursement Obligation under sec.5.2 in an
amount equal to such payment. Each Bank shall share in accordance with
its participating interest in any interest which accrues pursuant to
sec.5.2.
5.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. In order to induce the
Agent to issue, extend and renew each Letter of Credit and the Banks to
participate therein, the Borrower hereby agrees to reimburse or pay to the
Agent, for the account of the Agent or (as the case may be) the Banks, with
respect to each Letter of Credit issued, extended or renewed by the Agent
hereunder,
(a) except as otherwise expressly provided in sec.5.2(b) and
(c), on each date that any draft presented under such Letter of Credit
is honored by the Agent, or the Agent otherwise makes a payment with
respect thereto, (i) the amount paid by the Agent under or with respect
to such Letter of Credit, and (ii) the amount of any taxes, fees,
charges or other costs and expenses
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whatsoever incurred by the Agent or any Bank in connection with any
payment made by the Agent or any Bank under, or with respect to, such
Letter of Credit,
(b) upon the reduction (but not termination) of the Total
Commitment to an amount less than the Maximum Drawing Amount, an amount
equal to such difference, which amount shall be held by the Agent for
the benefit of the Banks and the Agent as cash collateral for all
Reimbursement Obligations, and
(c) upon the termination of the Total Commitment, or the
acceleration of the Reimbursement Obligations with respect to all
Letters of Credit in accordance with sec.14, an amount equal to the
then Maximum Drawing Amount on all Letters of Credit, which amount
shall be held by the Agent for the benefit of the Banks and the Agent
as cash collateral for all Reimbursement Obligations.
Each such payment shall be made to the Agent at the Agent's Head Office in
immediately available funds. Interest on any and all amounts remaining unpaid by
the Borrower under this sec.5.2 at any time from the date such amounts become
due and payable (whether as stated in this sec.5.2, by acceleration or
otherwise) until payment in full (whether before or after judgment) shall be
payable to the Agent on demand at the rate specified in sec.6.11 for overdue
principal on the Revolving Credit Loans.
5.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or
other demand for payment shall be made under any Letter of Credit, the Agent
shall 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. If the Borrower fails to reimburse the Agent as
provided in sec.5.2 on or before the date that such draft is paid or other
payment is made by the Agent, the Agent may at any time thereafter notify the
Banks of the amount of any such Unpaid Reimbursement Obligation. No later than
3:00 p.m. (Boston time) on the Business Day next following the receipt of such
notice, each Bank shall make available to the Agent, at the Agent's Head Office,
in immediately available funds, such Bank's Commitment Percentage of such Unpaid
Reimbursement Obligation, together with an amount equal to the product of (a)
the average, computed for the period referred to in clause (c) 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 (b) the amount equal to
such Bank's Commitment Percentage of such Unpaid Reimbursement Obligation, TIMES
(c) a fraction, the numerator of which is the number of days that elapse from
and including the date the Agent paid the draft presented for honor or otherwise
made payment to the date on which such Bank's Commitment Percentage of such
Unpaid Reimbursement obligation shall become immediately available to the Agent,
and the denominator of which is 360. The responsibility of the Agent to the
Borrower and the Banks shall be only to determine that the documents (including
each draft) delivered under each Letter of Credit in
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connection with such presentment shall be in conformity in all material respects
with such Letter of Credit.
5.4. OBLIGATIONS ABSOLUTE. The Borrower's obligations under this sec.5
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Agent, any Bank or any
beneficiary of a Letter of Credit. The Borrower further agrees with the Agent
and the Banks that the Agent and the Banks shall not be responsible for, and the
Borrower's Reimbursement Obligations under sec.5.2 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, fraudulent or forged, or any dispute between or among
the 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 the Borrower against the beneficiary of any
Letter of Credit or any such transferee. The Agent and the Banks 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. The Borrower agrees that any action taken or omitted by
the Agent or any Bank under or in connection with each Letter of Credit and the
related drafts and documents, if done in good faith, shall be binding upon the
Borrower and shall not result in any liability on the part of the Agent or any
Bank to the Borrower.
5.5. RELIANCE BY ISSUER. To the extent not inconsistent with sec.5.4,
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 Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Credit Agreement unless it
shall first have received such advice or concurrence of the Majority Banks as it
reasonably deems appropriate or it shall first be indemnified to its reasonable
satisfaction by the Banks against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action. The
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Agreement in accordance with a request of the Majority Banks,
and such request and any action taken or failure to act pursuant thereto shall
be binding upon the Banks and all future holders of the Revolving Credit Notes
or of a Letter of Credit Participation.
5.6. LETTER OF CREDIT FEE. The Borrower shall, on the date of issuance
or any extension or renewal of any Letter of Credit and at such other time or
times as such charges are customarily made by the Agent, pay a fee (in each
case, a "Letter of Credit Fee") to the Agent (a) in respect of each standby
Letter of Credit calculated at
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the rate of the Applicable Margin per annum of the face amount of such standby
Letter of Credit PLUS the Agent's customary issuance fee equal to one-quarter of
one percent (1/4%) of the face amount of such standby Letter of Credit, and (b)
in respect of each documentary Letter of Credit calculated at the rate of the
Applicable Margin per annum on the face amount of such documentary Letter of
Credit PLUS the Agent's customary issuance fee or amendment fee, as the case may
be, equal to one-quarter of one percent (1/4%) of the face amount of such
documentary Letter of Credit, PLUS the Agent's customary time negotiation fee
per document examination, PLUS the Agent's customary negotiation fee, such
Letter of Credit Fee (but not such issuance, amendment, negotiation or document
examination fee) to be for the accounts of the Banks in accordance with their
respective Commitment Percentages.
6. CERTAIN GENERAL PROVISIONS.
6.1. CLOSING FEE. The Borrower agrees to pay to the Agent for the
Agent's own account a closing fee in the amount and at the times set forth in
the Fee Letter.
6.2. AGENT'S FEE. The Borrower shall pay to the Agent for the Agent's
own account an Agent's fee as provided in the Fee Letter.
6.3. FUNDS FOR PAYMENTS.
6.3.1. PAYMENTS TO AGENT. All payments of principal, interest,
Reimbursement Obligations, commitment fees, Letter of Credit Fees and
any other amounts due hereunder or under any of the other Loan
Documents shall be made to the Agent, for the respective accounts of
the Banks and the Agent, at the Agent's Head Office or at such other
location in the Boston, Massachusetts, area that the Agent may from
time to time designate, in each case in immediately available funds.
6.3.2. NO OFFSET, ETC. All payments by the Borrower hereunder
and under any of the other Loan Documents shall be made without setoff
or counterclaim and free and clear of and without deduction for any
taxes, levies, imposts, duties, charges, fees, deductions,
withholdings, compulsory loans, restrictions or conditions of any
nature now or hereafter imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority therein
unless the Borrower is compelled by law to make such deduction or
withholding. If any such obligation is imposed upon the Borrower with
respect to any amount payable by it hereunder or under any of the other
Loan Documents, the Borrower will pay to the Agent, for the account of
the Banks or (as the case may be) the Agent, on the date on which such
amount is due and payable hereunder or under such other Loan Document,
such additional amount in Dollars as shall be necessary to enable the
Banks or the Agent to receive the same net amount which the Banks or
the Agent would have received on such due date had no such obligation
been imposed upon the Borrower. The Borrower will deliver promptly to
the Agent certificates or other valid vouchers for all taxes or other
charges
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deducted from or paid with respect to payments made by the Borrower
hereunder or under such other Loan Document.
6.4. COMPUTATIONS. All computations of interest on the Base Rate Loans
shall be based on a 365-day year and paid for the actual number of days elapsed.
All computations of interest on the Eurodollar Rate Loans and of commitment
fees, Letter of Credit Fees or other fees shall, unless otherwise expressly
provided herein, be based on a 360-day year and paid for the actual number of
days elapsed. Except as otherwise provided in the definition of the term
"Interest Period" with respect to Eurodollar Rate Loans, whenever a payment
hereunder or under any of the other Loan Documents becomes due on a day that is
not a Business Day, the due date for such payment shall be extended to the next
succeeding Business Day, and interest shall accrue during such extension.
6.5. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to the
commencement of any Interest Period relating to any Eurodollar Rate Loan, the
Agent shall determine or be notified by the Majority Banks that adequate and
reasonable methods do not exist for ascertaining the Eurodollar Rate that would
otherwise determine the rate of interest to be applicable to any Eurodollar Rate
Loan during any Interest Period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower and the
Banks) to the Borrower and the Banks. In such event (a) any Loan Request or
Conversion Request with respect to Eurodollar Rate Loans shall be automatically
withdrawn and shall be deemed a request for Base Rate Loans, (b) each Eurodollar
Rate Loan will automatically, on the last day of the then current Interest
Period relating thereto, become a Base Rate Loan, and (c) the obligations of the
Banks to make Eurodollar Rate Loans shall be suspended until the Agent or the
Majority Banks determine that the circumstances giving rise to such suspension
no longer exist, whereupon the Agent or, as the case may be, the Agent upon the
instruction of the Majority BANKS, shall so notify the Borrower and the Banks.
6.6. ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank to make or maintain
Eurodollar Rate Loans, such Bank shall forthwith give notice of such
circumstances to the Borrower and the other Banks and thereupon (a) the
commitment of such Bank to make Eurodollar Rate Loans or convert Loans of
another Type to Eurodollar Rate Loans shall forthwith be suspended and (b) such
Bank's Revolving Credit Loans then outstanding as Eurodollar Rate Loans, if any,
shall be converted automatically to Base Rate Loans on the last day of each
Interest Period applicable to such Eurodollar Rate Loans or within such earlier
period as may be required by law. The Borrower hereby agrees promptly to pay the
Agent for the account of such Bank, upon demand by such Bank, any additional
amounts necessary to compensate such Bank for any costs incurred by such Bank in
making any conversion in accordance with this sec.6.6, including any interest or
fees payable by such Bank to lenders of funds obtained by it in order to make or
maintain its Eurodollar Rate Loans hereunder.
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6.7. ADDITIONAL COSTS, ETC. If any introduction, adoption or change in
any applicable law or regulation, which expression, as used herein, includes
statutes, rules and regulations thereunder or changes in the interpretations
thereof by any competent court or by any governmental or other regulatory body
or official charged with the administration or the interpretation thereof and
requests, directives, instructions and notices at any time or from time to time
hereafter made upon or otherwise issued to any Bank or the Agent by any central
bank or other fiscal, monetary or other authority (whether or not having the
force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect
to this Credit Agreement, the other Loan Documents, any Letters of
Credit, such Bank's Commitment or the Loans (other than taxes based
upon or measured by the income or profits of such Bank or the Agent),
or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits) of payments to any Bank of the
principal of or the interest on any Loans or any other amounts payable
to any Bank or the Agent under this Credit Agreement or any of the
other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement)
any special deposit, reserve, assessment, liquidity, capital adequacy
or other similar requirements (whether or not having the force of law)
against assets held by, or deposits in or for the account of, or loans
by, or letters of credit issued by, or commitments of an office of any
Bank, or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
Documents, any Letters of Credit, the Loans, such Bank's Commitment, or
any class of loans, letters of credit or commitments of which any of
the Loans or such Bank's Commitment forms a part, and the result of any
of the foregoing is
(i) to increase the cost to any Bank of making,
funding, issuing, renewing, extending or maintaining any of
the Loans or such Bank's Commitment or any Letter of Credit,
or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Bank
or the Agent hereunder on account of such Bank's Commitment,
any Letter of Credit or any of the Loans, or
(iii) to require such Bank or the Agent to make any
payment or to forego any interest or Reimbursement Obligation
or other sum payable hereunder, the amount of which payment or
foregone interest or Reimbursement Obligation or other sum is
calculated by reference
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to the gross amount of any sum receivable or deemed received
by such Bank or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such Bank or
(as the case may be) the Agent at any time and from time to time and as often as
the occasion therefor may arise, pay to such Bank or the Agent such additional
amounts as will be sufficient to compensate such Bank or the Agent for such
additional cost, reduction, payment or foregone interest or Reimbursement
Obligation or other sum.
6.8. CAPITAL ADEQUACY. If after the Closing Date any Bank or the Agent
determines that (a) the adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) regarding capital requirements for banks or bank holding companies or any
change in the interpretation or application thereof by a court or governmental
authority with appropriate jurisdiction, or (b) compliance by such Bank or the
Agent or any corporation controlling such Bank or the Agent with any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) of any such entity regarding capital adequacy, has the
effect of reducing the return on such Bank's or the Agent's commitment with
respect to any Loans to a level below that which such Bank or the Agent could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's or the Agent's then existing policies with respect to
capital adequacy and assuming full utilization of such entity's capital) by any
amount deemed by such Bank or (as the case may be) the Agent to be material,
then such Bank or the Agent may notify the Borrower of such fact. To the extent
that the amount of such reduction in the return on capital is not reflected in
the Base Rate, the Borrower and such Bank shall thereafter attempt to negotiate
in good faith, within thirty (30) days of the day on which the Borrower receive
such notice, an adjustment payable hereunder that will adequately compensate
such Bank in light of these circumstances. If the Borrower and such Bank are
unable to agree to such adjustment within thirty (30) days of the date on which
the Borrower receive such notice, then commencing on the date of such notice
(but not earlier than the effective date of any such increased capital
requirement), the fees payable hereunder shall increase by an amount that will,
in such Bank's reasonable determination, provide adequate compensation. Each
Bank shall allocate such cost increases among its customers in good faith and on
an equitable basis.
6.9. CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to secs.6.7 or 6.8 and a brief explanation of such amounts
which are due, submitted by any Bank or the Agent to the Borrower, shall be
conclusive, absent manifest error, that such amounts are due and owing.
6.10. INDEMNITY. The Borrower agrees to indemnify each Bank and to hold
each Bank harmless from and against any loss, cost or expense that such Bank may
sustain or incur as a consequence of (a) default by the Borrower in payment of
the principal amount of or any interest on any Eurodollar Rate Loans as and when
due and payable, including any such loss or expense arising from interest or
fees
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payable by such Bank to lenders of funds obtained by it in order to maintain its
Eurodollar Rate Loans, (b) default by the Borrower in making a borrowing or
conversion after the Borrower has given (or is deemed to have given) a Loan
Request, notice (in the case of all or any portion of the Term Loans pursuant to
sec.4.5.2) or a Conversion Request relating thereto in accordance with sec.2.7,
sec.2.8 or sec.4.5 or (c) the making of any payment of a Eurodollar Rate Loan or
the making of any conversion of any such Loan to a Base Rate Loan on a day that
is not the last day of the applicable Interest Period with respect thereto,
including interest or fees payable by such Bank to lenders of funds obtained by
it in order to maintain any such Loans.
6.11. INTEREST AFTER DEFAULT. Overdue principal and (to the extent
permitted by applicable law) interest on the Loans and all other overdue amounts
payable hereunder or under any of the other Loan Documents shall bear interest
compounded monthly and payable on demand at a rate per annum equal to two
percent (2%) above the Base Rate until such amount shall be paid in full (after
as well as before judgment).
6.12. REPLACEMENT BANK. Within thirty (30) days after (a) any Bank has
demanded compensation from the Borrower pursuant to secs.6.3.2, 6.7 or 6.8
hereof, or (b) there shall have occurred a change in law with respect to any
Bank as a consequence of which it shall have become unlawful for such Bank to
make a Eurodollar Rate Loan on any Drawdown Date, as described in sec.6.6 hereof
(any such Bank described in the foregoing clauses (a) or (b) is hereinafter
referred to as an "Affected Bank"), the Borrower may request that the other
Banks (collectively, the "Non-Affected Banks") acquire all, but not less than
all, of the Affected Bank's outstanding Loans and assume all, but not less than
all of the Affected Bank's Commitment. If the Borrower so requests, the
Non-Affected Banks may elect to acquire all or any portion of the Affected
Bank's Commitment. If the Non-Affected Banks do not elect to acquire and assume
all of the Affected Bank's outstanding Loans and Commitment, the Borrower may
designate a replacement bank or banks, which must be an Eligible Assignee and
must be reasonably satisfactory to the Agent, to acquire and assume that portion
of the outstanding Loans and Commitment of the Affected Bank not being acquired
and assumed by the Non-Affected Banks. The provisions of sec.20 hereof shall
apply to all reallocations pursuant to this sec.6.12, and the Affected Bank and
any Non-Affected Banks and/or replacement banks which are to acquire the Loans
and Commitment of the Affected Bank shall execute and deliver to the Agent, in
accordance with the provisions of sec.20 hereof, such Assignment and Acceptances
and other instruments, including, without limitation, Notes, as are required
pursuant to sec.20 hereof to give effect to such reallocations. On the effective
date of the applicable Assignments and Acceptances, the Borrower shall pay to
the Affected Bank all interest accrued on its Loans up to but excluding such
date, along with any fees payable to such Affected Bank hereunder up to but
excluding such date.
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7. GUARANTIES.
7.1. GUARANTY.
7.1.1. GUARANTY OF PAYMENT AND PERFORMANCE. The Guarantors
hereby acknowledge that the Guarantors are members of a group of
related corporations, the success of any one of which is dependent in
part on the success of the other members of such group, and each
Guarantor expects to receive substantial direct and indirect benefits
from the extensions of credit to the Borrower by the Banks pursuant to
the Credit Agreement (which benefits are hereby acknowledged). Each of
the Guarantors hereby jointly and severally guarantees to the Banks and
the Agent the full and punctual payment when due (whether at stated
maturity, by required pre-payment, by acceleration or otherwise), as
well as the performance, of all of the Obligations including all such
which would become due but for the operation of the automatic stay
pursuant to sec.362(a) of the Federal Bankruptcy Code and the operation
of secs.502(b) and 506(b) of the Federal Bankruptcy Code. This
guaranty is an absolute, unconditional and continuing guaranty of the
full and punctual payment and performance of all of the Obligations and
not of their collectibility only and is in no way conditioned upon any
requirement that the Agent or any Bank first attempt to collect any of
the Obligations from the Borrower or any other Guarantor or resort to
any collateral security or other means of obtaining payment. Should the
Borrower default in the payment or performance of any of the
Obligations, the obligations of each of the Guarantors hereunder with
respect to such Obligations in default shall, upon demand by the Agent,
become immediately due and payable to the Agent, for the benefit of the
Banks and the Agent, without demand or notice of any nature, all of
which are expressly waived by each of the Guarantors. Payments by any
of the Guarantors hereunder may be required by the Agent on any number
of occasions. All payments by the Guarantors hereunder shall be made to
the Agent, in the manner and at the place of payment specified in this
Agreement, for the account of the Banks and the Agent.
7.1.2. GUARANTORS' AGREEMENT TO PAY ENFORCEMENT COSTS. Each of
the Guarantors further agrees, as the principal obligor and not as a
guarantor only, to pay to the Agent, on demand, all costs and expenses
(including court costs and legal expenses) incurred or expended by the
Agent or any Bank in connection with the Obligations, this guaranty and
the enforcement thereof, together with interest on amounts recoverable
under this sec.7.1 from the time when such amounts become due until
payment, whether before or after judgment, at the rate of interest for
overdue principal set forth in the Credit Agreement, provided that if
such interest exceeds the maximum amount permitted to be paid under
applicable law, then such interest shall be reduced to such maximum
permitted amount.
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7.1.3. WAIVERS BY GUARANTORS; BANKS FREEDOM TO ACT. Each of
the Guarantors agrees that the Obligations will be paid and performed
strictly in accordance with their respective terms, regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Agent or any Bank with
respect thereto. Each of the Guarantors waives promptness, diligences,
presentment, demand, protest, notice of acceptance, notice of any
Obligations incurred and all other notices of any kind, all defenses
which may be available by virtue of any valuation, stay, moratorium law
or other similar law now or hereafter in effect, any right to require
the marshalling of assets of the Borrower or any other entity or other
person primarily or secondarily liable with respect to any of the
Obligations, and all suretyship defenses generally. Without limiting
the generality of the foregoing, each of the Guarantors agrees to the
provisions of any instrument evidencing, securing or otherwise executed
in connection with any Obligation and agrees that the obligations of
such Guarantor hereunder shall not be released or discharged, in whole
or in part, or otherwise affected by (a) the failure of the Agent or
any Bank to assert any claim or demand or to enforce any right or
remedy against the Borrower or any other entity or other person
primarily or secondarily liable with respect to any of the Obligations;
(b) any extensions, compromise, refinancing, consolidation or renewals
of any Obligation; (c) any change in the time, place or manner of
payment of any of the Obligations or any rescissions, waivers,
compromise, refinancing, consolidation or other amendments or
modifications of any of the terms or provisions of the Credit
Agreement, the Notes, the other Loan Documents or any other agreement
evidencing, securing or otherwise executed in connection with any of
the Obligations, (d) the addition, substitution or release of any
entity or other person primarily or secondarily liable for any
Obligation; (e) the adequacy of any rights which the Agent or any Bank
may have against any collateral security or other means of obtaining
repayment of any of the Obligations; (f) the impairment of any
collateral securing any of the Obligations, including without
limitation the failure to perfect or preserve any rights which the
Agent or any Bank might have in such collateral security or the
substitution, exchange, surrender, release, loss or destruction of any
such collateral security; or (g) any other act or omission which might
in any manner or to any extent vary the risk of such Guarantor or
otherwise operate as a release or discharge of such Guarantor, all of
which may be done without notice to such Guarantor. To the fullest
extent permitted by law, each of the Guarantors hereby expressly waives
any and all rights or defenses arising by reason of (i) any "one
action" or "anti-deficiency" law which would otherwise prevent the
Agent or any Bank from bringing any action, including any claim for a
deficiency, or exercising any other right or remedy (including any
right of set-off), against such Guarantor before or after the Agent's
or such Bank's commencement or completion of any foreclosure action,
whether judicially, by exercise of power of sale or
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otherwise, or (ii) any other law which in any other way would otherwise
require any election of remedies by the Agent or any Bank.
7.1.4. UNENFORCEABILITY AGAINST BORROWER. If for any reason
the Borrower has no legal existence or is under no legal obligation to
discharge any of the Obligations, or if any of the Obligations have
become irrecoverable from the Borrower by reason of the Borrower's
insolvency, bankruptcy or reorganization or by other operation of law
or for any other reason, this guaranty shall nevertheless be binding on
each of the Guarantors to the same extent as if such Guarantor at all
times had been the principal obligor on all such Obligations. In the
event that acceleration of the time for payment of any of the
Obligations is stayed upon the insolvency, bankruptcy or reorganization
of the Borrower, or for any other reason, all such amounts otherwise
subject to acceleration under the terms of the Credit Agreement, the
Notes, the other Loan Documents or any other agreement evidencing,
securing or otherwise executed in connection with any Obligation shall
be immediately due and payable by each of the Guarantors.
7.1.5. SUBROGRATION; SUBORDINATION. (a) Until the final
payment and performance in full of all of the Obligations, each of the
Guarantors shall not exercise and hereby waives any rights against the
Borrower arising as a result of payment by such Guarantor hereunder, by
way of subrogation, reimbursement, restitution, contribution or
otherwise, and will not prove any claim in competition with the Agent
or any Bank in respect of any payment hereunder in any bankruptcy,
insolvency or reorganization case or proceedings of any nature; such
Guarantor will not claim any setoff, recoupment or counterclaim against
the Borrower in respect of any liability of such Guarantor to the
Borrower; and such Guarantor waives any benefit of and any right to
participate in any collateral security which may be held by the Agent
or any Bank; and (b) the payment of any amounts due with respect to any
indebtedness of the Borrower for money borrowed or credit received now
or hereafter owed to any of the Guarantors is hereby subordinated to
the prior payment in full of all of the Obligations. Each of the
Guarantor agrees that, after the occurrence of any default in the
payment or performance of any of the Obligations, such Guarantor will
not demand, sue for or otherwise attempt to collect any such
indebtedness of the Borrower to such Guarantor until all of the
Obligations shall have been paid in full. If, notwithstanding the
foregoing sentence, such Guarantor shall collect, enforce or receive
any amounts in respect of such indebtedness while any Obligations are
still outstanding, such amounts shall be collected, enforced and
received by such Guarantor as trustee for the Banks and the Agent and
be paid over to the Agent, for the benefit of the Banks and the Agent,
on account of the Obligations without affecting in any manner the
liability of such Guarantor under the other provisions of this
guaranty. The provisions of this sec.7.1.5 shall be supplemental to and
not in
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derogation of any rights and remedies of the Banks and the Agent under
any separate subordination agreement which the Agent may at any time
and from time to time enter into with any of the Guarantors for the
benefit of the Banks and the Agent.
7.1.6. SECURITY; SETOFF. Each of such Guarantors grants to
each of the Agent and the Banks, as security for the full and punctual
payment and performance of all of such Guarantor's obligations
hereunder, a continuing lien on and security interest in all securities
or other property belonging to such Guarantor now or hereafter held by
the Agent or such Bank and in all deposits (general or special, time or
demand, provisional or final) and other sums credited by or due from
the Agent or such Bank to such Guarantor or subject to withdrawal by
such Guarantor. Upon the occurrence and during the continuance of any
Event of Default, each Bank is hereby authorized at any time and from
time to time, without notice (any such notice being expressly waived
hereby) and to the fullest extent permitted by law and without regard
to any collateral or other source of payment whatsoever, to set off and
apply any and all deposits (general or specific, time or demand,
provisional or final, regardless of currency, maturity, or the branch
of the Bank where the deposits are held) at any time held or other sums
credited by or due from any of the Banks to any of the Guarantors
against any and all Obligations of the Borrower and the Guarantors to
the Banks. Each of the Banks agrees with the other Banks that (a) if an
amount to be set off is to be applied to Indebtedness of the Borrower
or Guarantor to a Bank, other than Indebtedness evidenced by the then
outstanding Loans or Reimbursement Obligations held by all of the
Banks, such amount shall be applied ratably to such other Indebtedness
and to the Indebtedness evidenced by all Outstanding Loans or
Reimbursement Obligations of such Bank, and (b) if a Bank shall receive
from the Borrower or Guarantor whether by voluntary payment, exercise
of the right of set-off, counterclaim, cross action, enforcement of the
claim related to Loans by a Bank by proceedings against the Borrower or
such Guarantor at law or in equity or by proof thereof in bankruptcy,
reorganization, liquidation, receivership or similar proceedings, or
otherwise, any payment so received shall be shared so as to give effect
to the provisions of sec.15.
7.1.7. FURTHER ASSURANCES. Each of such Guarantors agrees that
it will from time to time, at the request of the Agent, do all such
things and execute all such documents as the Agent may consider
necessary or desirable to give full effect to this guaranty and to
perfect and preserve the rights and powers of the Banks and the Agent
hereunder. Each of the Guarantors acknowledges and confirms that such
Guarantor itself has established its own adequate means of obtaining
from the Borrower on a continuing basis all information desired by such
Guarantor concerning the financial condition of the Borrower and that
such Guarantor will look to the Borrower and not to the Agent or any
Bank in order for such
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Guarantor to keep adequately informed of changes in the Borrower's
financial condition.
7.1.8. TERMINATION; REINSTATEMENT. This guaranty shall remain
in full force and effect until the Agent is given written notice of the
Guarantors' intention to discontinue this Guaranty, notwithstanding any
intermediate or temporary payment or settlement of the whole or any
part of the Obligations. No such notice shall be effective unless
received and acknowledged by an officer of the Agent at the address of
the Agent for notices set forth in sec.21 of the Credit Agreement. No
such notice shall affect any rights of the Agent or any Bank hereunder
with respect to any Obligations incurred or accrued prior to the
receipt of such notice or any Obligations incurred or accrued pursuant
to any contract or commitment in existence prior to such receipt. This
Guaranty shall continue to be effective or be reinstated,
notwithstanding any such notice, if at any time any payment made or
value received with respect to any Obligation is rescinded or must
otherwise be returned by the Agent or any Bank upon the insolvency,
bankruptcy or reorganization of the Borrower, or otherwise, all as
though such payment had not been made or value received.
8. REPRESENTATIONS AND WARRANTIES.
The Borrower and the Guarantors represents and warrants to the Banks
and the Agent as follows:
8.1. CORPORATE AUTHORITY.
8.1.1. INCORPORATION; GOOD STANDING. Each of the Borrower, the
Guarantors and their Subsidiaries (a) is a corporation duly organized,
validly existing and in good standing under the laws of its state of
incorporation, (b) has all requisite corporate power to own its
property and conduct its business as now conducted and as presently
contemplated, and (c) is in good standing as a foreign corporation and
is duly authorized to do business in each jurisdiction where such
qualification is necessary except where a failure to be so qualified
would not have a materially adverse effect on the business, assets or
financial condition of the Borrower, the Guarantors or any such
Subsidiary.
8.1.2. AUTHORIZATION. The execution, delivery and performance
of this Credit Agreement and the other Loan Documents to which the
Borrower, the Guarantors or any of their Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby (a)
are within the corporate authority of such Person, (b) have been duly
authorized by all necessary corporate proceedings, (c) do not conflict
with or result in any breach or contravention of any provision of law,
statute, rule or regulation to which the Borrower, any Guarantor or any
of their respective Subsidiaries is subject or any judgment, order,
writ, injunction, license or permit applicable
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to the Borrower, any Guarantor or any of their respective Subsidiaries
and (d) do not conflict with any provision of the corporate charter or
bylaws of, or any agreement or other instrument binding upon, the
Borrower, any Guarantor or any of their respective Subsidiaries.
8.1.3. ENFORCEABILITY. The execution and delivery of this
Credit Agreement and the other Loan Documents to which the Borrower,
the Guarantors or any of their Subsidiaries is or is to become a party
will result in valid and legally binding obligations of such Person
enforceable against it in accordance with the respective terms and
provisions hereof and thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting generally the enforcement of creditors' rights
and except to the extent that availability of the remedy of specific
performance or injunctive relief is subject to the discretion of the
court before which any proceeding therefor may be brought.
8.2. GOVERNMENTAL APPROVALS. The execution, delivery and performance by
the Borrower, the Guarantors and any of their Subsidiaries of this Credit
Agreement and the other Loan Documents to which the Borrower, the Guarantors or
any of their Subsidiaries is or is to become a party and the transactions
contemplated hereby and thereby do not require the approval or consent of, or
filing with, any governmental agency or authority other than those already
obtained.
8.3. TITLE TO PROPERTIES; LEASES. Except as indicated on SCHEDULE 8.3
hereto, the Borrower, the Guarantors and their Subsidiaries own all of the
assets reflected in the consolidated balance sheet of the Borrower and their
Subsidiaries as at the Balance Sheet Date or acquired since that date (except
property and assets sold or otherwise disposed of in the ordinary course of
business since that date), subject to no rights of others, including any
mortgages, leases, conditional sales agreements, title retention agreements,
liens or other encumbrances except Permitted Liens.
8.4. FINANCIAL STATEMENTS AND PROJECTIONS.
8.4.1. FINANCIAL STATEMENTS. There has been furnished to each
of the Banks a consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date, and a consolidated statement
of income of the Borrower and its Subsidiaries for the fiscal year then
ended, certified by Coopers & Lybrand. Such balance sheet and statement
of income have been prepared in accordance with generally accepted
accounting principles and fairly present the financial condition of the
Borrower as at the close of business on the date thereof and the
results of operations for the fiscal year then ended. There are no
contingent liabilities of the Borrower or any of its Subsidiaries as of
such date involving material amounts, known to the officers of the
Borrower, which were not disclosed in such balance sheet and the notes
related thereto.
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8.4.2. PROJECTIONS. The projections of the annual operating
budgets of the Borrower and its Subsidiaries on a consolidated basis,
balance sheets and cash flow statements for the 1997 to 2000 fiscal
years, copies of which have been delivered to each Bank, disclose all
assumptions made with respect to general economic, financial and market
conditions used in formulating such projections. To the knowledge of
the Borrower or any of its Subsidiaries, no facts exist that
(individually or in the aggregate) would result in any material change
in any of such projections. The projections are based upon reasonable
estimates and assumptions, have been prepared on the basis of the
assumptions stated therein and reflect the reasonable estimates of the
Borrower and its Subsidiaries of the results of operations and other
information projected therein.
8.5. NO MATERIAL CHANGES, ETC. Since the Balance Sheet Date there has
occurred no materially adverse change in the financial condition or business of
the Borrower, the Guarantors and their Subsidiaries, taken as a whole, as shown
on or reflected in the consolidated balance sheet of the Borrower and its
Subsidiaries as at the Balance Sheet Date, or the consolidated statement of
income for the fiscal year then ended, other than changes in the ordinary course
of business that have not had any Material Adverse Effect. Since the Balance
Sheet Date, the Borrower has not made any Distributions.
8.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. The Borrower, the Guarantors
and their Subsidiaries possesses all franchises, patents, copyrights,
trademarks, trade names, licenses and permits, and rights in respect of the
foregoing, adequate for the conduct of its business substantially as now
conducted without known conflict with any rights of others, unless such conflict
would not have a Material Adverse Effect.
8.7. LITIGATION. Except as set forth in SCHEDULE 8.7 hereto, there are
no actions, suits, proceedings or investigations of any kind pending or
threatened against the Borrower, the Guarantors or any of their Subsidiaries
before any court, tribunal or administrative agency or board that could
reasonably be expected to, either in any case or in the aggregate, have a
Materially Adversely Effect or materially impair the right of the Borrower, the
Guarantors and their Subsidiaries, considered as a whole, to carry on business
substantially as now conducted by them, or result in any substantial liability
not adequately covered by insurance, or for which adequate reserves are not
maintained on the consolidated balance sheet of the Borrower and its
Subsidiaries, or which question the validity of this Credit Agreement or any of
the other Loan Documents, or any action taken or to be taken pursuant hereto or
thereto.
8.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Borrower, any
Guarantor nor any of their respective Subsidiaries is subject to any charter,
corporate or other legal restriction, or any judgment, decree, order, rule or
regulation that has or is expected in the future to have a Materially Adverse
Effect. Neither the Borrower, any Guarantor nor any of their Subsidiaries is a
party to any
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contract or agreement that has or is expected, in the judgment of the Borrower's
officers, to have any Materially Adverse Effect.
8.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the
Borrower, any Guarantor nor any of their Subsidiaries is in violation of any
provision of its charter documents, bylaws, or any agreement or instrument to
which it may be subject or by which it or any of its properties may be bound or
any decree, order, judgment, statute, license, rule or regulation, in any of the
foregoing cases in a manner that could result in the imposition of substantial
penalties or have a Material Adverse Effect.
8.10. TAX STATUS. The Borrower, the Guarantors and their Subsidiaries
(a) have made or filed all federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to which any of them is
subject, (b) have paid all taxes and other governmental assessments and charges
shown or determined to be due on such returns, reports and declarations, except
those being contested in good faith and by appropriate proceedings and (c) have
set aside on their books provisions reasonably adequate for the payment of all
taxes for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount claimed to
be due by the taxing authority of any jurisdiction, and the officers of the
Borrower know of no basis for any such claim.
8.11. NO EVENT OF DEFAULT. No Default or Event of Default has occurred
and is continuing.
8.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the
Borrower, any Guarantor nor any of their Subsidiaries is a "holding company", or
a "subsidiary company" of a "holding company", or an affiliate" of a "holding
company", as such terms are defined in the Public Utility Holding Company Act of
1935; nor is it an "investment company", or an "affiliated company" or a
"principal underwriter" of an "investment company", as such terms are defined in
the Investment Company Act of 1940.
8.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future lien on, or security interest
in, any assets or property of the Borrower, any Guarantor or any of their
Subsidiaries or any rights relating thereto.
8.14. CERTAIN TRANSACTIONS. Except for arm's length transactions
pursuant to which the Borrower, the Guarantors or any of their Subsidiaries
makes payments in the ordinary course of business upon terms no less favorable
than the Borrower, such Guarantor or such Subsidiary could obtain from third
parties, none of the officers, directors, or employees of the Borrower,
Guarantor or any of their
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Subsidiaries is presently a party to any transaction with the Borrower, any
Guarantor or any of their Subsidiaries (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Borrower or
Guarantors, any corporation, partnership, trust or other entity in which any
officer, director, or any such employee has a substantial interest or is an
officer, director, trustee or partner.
8.15. EMPLOYEE BENEFIT PLANS.
8.15.1. IN GENERAL. Each Employee Benefit Plan and each
Guaranteed Pension Plan has been maintained and operated in compliance
in all material respects with the provisions of ERISA and, to the
extent applicable, the Code, including but not limited to the
provisions thereunder respecting prohibited transactions and the
bonding of fiduciaries and other persons handling plan funds as
required by sec.412 of ERISA. The Borrower has heretofore delivered to
the Agent the most recently completed annual report, Form 5500, if any,
with all required attachments, and actuarial statement required to be
submitted under sec.103(d) of ERISA, with respect to each Guaranteed
Pension Plan.
8.15.2. TERMINABILITY OF WELFARE PLANS. No Employee Benefit
Plan which is an employee welfare benefit plan within the meaning of
sec.3(1) or sec.3(2)(B) of ERISA provides benefit coverage subsequent
to termination of employment except as required by Title I, Part 6 of
ERISA or applicable state insurance laws. The Borrower may terminate
each such Plan at any time (or at any time subsequent to the expiration
of any applicable bargaining agreement) in the discretion of the
Borrower without liability to any Person other than for claims arising
prior to termination.
8.15.3. GUARANTEED PENSION PLANS. Each contribution required
to be made to a Guaranteed Pension Plan, whether required to be made to
avoid the incurrence of an accumulated funding deficiency, the notice
or lien provisions of sec.302(f) of ERISA, or otherwise, has been
timely made. No waiver of an accumulated funding deficiency or
extension of amortization periods has been received with respect to
any Guaranteed Pension Plan, and neither the Borrower nor any ERISA
Affiliate is obligated to or has posted security in connection with an
amendment of a guaranteed Pension Plan pursuant to sec.307 of ERISA or
sec.401(a)(29) of the Code. No liability to the PBGC (other than
required insurance premiums, all of which have been paid) has been
incurred by the Borrower or any ERISA Affiliate with respect to any
Guaranteed Pension Plan and there has not been any ERISA Reportable
Event, or any other event or condition which presents a material risk
of termination of any Guaranteed Pension Plan by the PBGC. Based on
the latest valuation of each Guaranteed Pension Plan (which in each
case occurred within twelve months of the date of this
representation), and on the
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actuarial methods and assumptions employed for that valuation, the
aggregate benefit liabilities of all such Guaranteed Pension Plans
within the meaning of sec.4001 of ERISA did not exceed the aggregate
value of the assets of all such Guaranteed Pension Plans, disregarding
for this purpose the benefit liabilities and assets of any Guaranteed
Pension Plan with assets in excess of benefit liabilities.
8.15.4. MULTIEMPLOYER PLANS. Neither the Borrower, the
Guarantors nor any ERISA Affiliate has incurred any material liability
(including secondary liability) to any Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan under
sec.4201 of ERISA or as a result of a sale of assets described in
sec.4204 of ERISA. Neither the Borrower, the Guarantors nor any ERISA
Affiliate has been notified that any Multiemployer Plan is in
reorganization or insolvent under and within the meaning of sec.4241 or
sec.4245 of ERISA or is at risk of entering reorganization or becoming
insolvent, or that any Multiemployer Plan intends to terminate or has
been terminated under sec.4041A of ERISA.
8.16. REGULATIONS U AND X. The proceeds of the Loans shall be used for
working capital and general corporate purposes (including, without limitation,
to finance acquisitions permitted hereunder) and to repurchase its capital stock
to be held as treasury stock, restored to unissued status or eliminated from its
authorized shares, provided that such purchase does not violate Regulation U of
the Board of Governors of the Federal Reserve System. The Borrower will obtain
Letters of Credit solely for working capital and general corporate purposes. No
portion of any Loan is to be used, and no portion of any Letter of Credit is to
be obtained, for the purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations U and X of the Board of
Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and 224 if such a
use would violate Regulations U or X of the Board of Governors of the Federal
Reserve System.
8.17. ENVIRONMENTAL COMPLIANCE. The Borrower and the Guarantors have
taken all reasonable steps to investigate the past and present condition and
usage of the Real Estate and the operations conducted thereon and, based upon
such investigation, has determined that:
(a) none of the Borrower, the Guarantors, their Subsidiaries
or any operator of the Real Estate or any operations thereon is in
violation, or alleged violation, of any judgment, decree, order, law,
license, rule or regulation pertaining to environmental matters,
including without limitation, those arising under the Resource
Conservation and Recovery Act ("RCRA"), the Comprehensive Environmental
Response, Compensation and Liability Act of 1980 as amended ("CERCLA"),
the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), the
Federal Clean Water Act, the Federal Clean Air Act, the Toxic
Substances Control Act, or any state or local statute, regulation,
ordinance, order or decree relating to health, safety or the
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environment (hereinafter "Environmental Laws"), which violation would
have a Material Adverse Effect;
(b) neither the Borrower, the Guarantors nor any of their
Subsidiaries has received notice from any third party including,
without limitation, any federal, state or local governmental authority,
(i) that any one of them has been identified by the United States
Environmental Protection Agency ("EPA") as a potentially responsible
party under CERCLA with respect to a site listed on the National
Priorities List, 40 C.F.R. Part 300 Appendix B unless being so
identified could not reasonably be expected to have a Material Adverse
Effect; (ii) that any hazardous waste, as defined by 42 U.S.C.
sec.6903(5), any hazardous substances as defined by 42 U.S.C.
sec.9601(14), any pollutant or contaminant as defined by 42 U.S.C.
sec.9601(33) and any toxic substances, oil or hazardous materials or
other chemicals or substances regulated by any Environmental Laws
("Hazardous Substances") which any one of them has generated,
transported or disposed of has been found at any site at which a
federal, state or local agency or other third party has conducted or
has ordered that the Borrower, any Guarantor or any of their
Subsidiaries conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law, unless the failure
to respond to such Environmental Law could not reasonably be expected
to have a Material Adverse Effect; or (iii) that it is or shall be a
named party to any claim, action, cause of action, complaint, or legal
or administrative proceeding (in each case, contingent or otherwise)
arising out of any third party's incurrence of costs, expenses, losses
or damages of any kind whatsoever in connection with the release of
Hazardous Substances and such a claim, action, cause of action,
complaint or proceeding, if adversely determined, would have a Material
Adverse Effect;
(c) except as set forth on SCHEDULE 8.17 attached hereto: (i)
no portion of the Real Estate has been used for the handling,
processing, storage or disposal of Hazardous Substances except in
accordance with applicable Environmental Laws or where such a violation
of any applicable Environmental Law would not have a Material Adverse
Effect; and no underground tank or other underground storage receptacle
for Hazardous Substances is located on any portion of the Real Estate;
(ii) in the course of any activities conducted by the Borrower, the
Guarantors, its Subsidiaries or operators of its properties, no
Hazardous Substances have been generated or are being used on the Real
Estate except in accordance with applicable Environmental Laws or where
such a violation of any applicable Environmental Law would not have a
Material Adverse Effect; (iii) there have been no releases (i.e. any
past or present releasing, spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, disposing or
dumping) or threatened releases of Hazardous Substances on, upon, into
or from the properties of the Borrower, the Guarantors or its
Subsidiaries, which releases would have a Material Adverse Effect; (iv)
to the best of each Borrower's and Guarantor's knowledge, there have
been no
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releases on, upon, from or into any real property in the vicinity of
any of the Real Estate which, through soil or groundwater
contamination, may have come to be located on, and which would have a
material adverse effect on the value of, the Real Estate; and (v) in
addition, any Hazardous Substances that have been generated on any of
the Real Estate have been transported offsite only by carriers having
an identification number issued by the EPA, treated or disposed of only
by treatment or disposal facilities maintaining valid permits as
required under applicable Environmental Laws, which transporters and
facilities have been and are, to the best of each Borrower's and
Guarantor's knowledge, operating in compliance with such permits and
applicable Environmental Laws or where such a violation of any
applicable Environmental Law would not have a Material Adverse Effect;
and
(d) By virtue of the transactions set forth herein and
contemplated hereby or by virtue of the effectiveness of any other
transactions contemplated hereby, none of the Borrower, the Guarantors
and its Subsidiaries or any of the other Real Estate is subject to any
applicable environmental law requiring the performance of Hazardous
Substances site assessments, or the removal or remediation of Hazardous
Substances, or the giving of notice to any governmental agency or the
recording or delivery to other Persons of an environmental disclosure
document or statement.
8.18. SUBSIDIARIES, ETC. SCHEDULE 8.18(A) hereto sets forth as of the
date hereof each Subsidiary of the Borrower and each Subsidiary of any other
Subsidiary, together with the applicable information as to (a) jurisdiction of
incorporation; (b) whether such Person is a Material Subsidiary, and whether
such Person is a Foreign or Domestic Subsidiary. Except as set forth on SCHEDULE
8.18(B) hereto, neither the Borrower, the Guarantors nor any Subsidiary of the
Borrower or Guarantor is engaged as of the date hereof in any joint venture or
partnership with any other Person.
8.19. DISCLOSURE. None of the representations or warranties made by the
Borrower, the Guarantors or any of their Subsidiaries in this Credit Agreement,
the other Loan Documents or in any agreement, instrument, document, certificate,
written statement or letter furnished to the Agent or the Banks, by or on behalf
of the Borrower, the Guarantors or any Subsidiary in connection with any of the
transactions contemplated by any of the Loan Documents contains any untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements contained therein not misleading as of the time
when made or deemed to be made in light of the circumstances in which they are
made. There is no fact known to the Borrower, the Guarantors or any of their
Subsidiaries on or as of the Closing Date which materially adversely affects, or
which would, in the reasonable judgment of the Borrower, materially adversely
affect in the reasonably foreseeable future the financial position, business,
operations or affairs of the Borrower, the Guarantors and their Subsidiaries.
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8.20. CHIEF EXECUTIVE OFFICES. The Borrower's and Guarantors' chief
executive office is as set forth on SCHEDULE 8.20 hereto, at which location its
books and records are kept.
8.21. FISCAL YEAR. The Borrower has a fiscal year which is the twelve
month period ending March 31 of each year.
8.22. INSURANCE. Each of the Borrower, each Guarantor and each of their
Subsidiaries maintains with financially sound and reputable insurers insurance
with respect to its properties and businesses against such casualties and
contingencies as are in accordance with sound business practices, with the
details of such coverage being more fully described on SCHEDULE 8.22 hereto, as
amended from time to time in accordance with sound business practices.
9. AFFIRMATIVE COVENANTS OF THE BORROWER AND GUARANTORS.
Each of the Borrower and the Guarantors covenants and agrees that, so
long as any Loan, Unpaid Reimbursement Obligation, Letter of Credit or Note is
outstanding or any Bank has any obligation to make any Loans or the Agent has
any obligation to issue, extend or renew any Letters of Credit:
9.1. PUNCTUAL PAYMENT. The Borrower and Guarantors will duly and
punctually pay or cause to be paid the principal and interest on the Loans, all
Reimbursement Obligations, the Letter of Credit Fees, the commitment fees, the
Agent's fee and all other amounts provided for in this Credit Agreement and the
other Loan Documents to which the Borrower, the Guarantors or any of their
Subsidiaries is a party, all in accordance with the terms of this Credit
Agreement and such other Loan Documents.
9.2. MAINTENANCE OF OFFICE. The Borrower and the Guarantors will each
maintain its chief executive office as set forth in SCHEDULE 8.20, or at such
other place in the United States of America as the Borrower or Guarantor shall
designate upon written notice to the Agent, where notices, presentations and
demands to or upon the Borrower or such Guarantor in respect of the Loan
Documents to which the Borrower is a party may be given or made.
9.3. RECORDS AND ACCOUNTS. Each of the Borrower and Guarantors will (a)
keep, and cause each of its Subsidiaries to keep, true and accurate records and
books of account in which full, true and correct entries will be made in
accordance with generally accepted accounting principles and (b) maintain
adequate accounts and reserves for all taxes (including income taxes),
depreciation, depletion, obsolescence and amortization of its properties and the
properties of its Subsidiaries, contingencies, and other reserves.
9.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The Borrower
will deliver to each of the Banks:
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(a) as soon as practicable, but in any event not later than
ninety (90) days after the end of each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries as at
the end of such year, and the related consolidated statement of income
and consolidated statement of cash flow for such year, each setting
forth in comparative form the figures for the previous fiscal year and
all such consolidated statements to be in reasonable detail, prepared
in accordance with generally accepted accounting principles, and
certified without qualification by Coopers & Lybrand or by other
independent certified public accountants satisfactory to the Agent,
together with a written statement from such accountants to the effect
that they have read a copy of this Credit Agreement, and that, in
making the examination necessary to said certification, they have
obtained no knowledge of any Default or Event of Default, or, if such
accountants shall have obtained knowledge of any then existing Default
or Event of Default they shall disclose in such statement any such
Default or Event of Default; PROVIDED that such accountants shall not
be liable to the Banks for failure to obtain knowledge of any Default
or Event of Default;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of
the Borrower, copies of the unaudited consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such quarter, and the
related consolidated statement of income and consolidated statement of
cash flow for the portion of the Borrower's fiscal year then elapsed,
all in reasonable detail and prepared in accordance with generally
accepted accounting principles, together with a certification by the
principal financial or accounting officer of the Borrower that the
information contained in such financial statements fairly presents the
financial position of the Borrower, the Guarantors and its Subsidiaries
on the date thereof (subject to year-end adjustments);
(c) simultaneously with the delivery of the financial
statements referred to in subsections (a) and (b) above, a statement
certified by the principal financial or accounting officer of the
Borrower in substantially the form of EXHIBIT D hereto (the "Compliance
Certificate") and setting forth in reasonable detail computations
evidencing compliance with the covenants contained in sec.11 and (if
applicable) reconciliations to reflect changes in generally accepted
accounting principles since the Balance Sheet Date;
(d) contemporaneously with the filing or mailing thereof,
copies of all material of a financial nature filed with the Securities
and Exchange Commission or sent to the stockholders of the Borrower;
(e) from time to time upon the request of the Agent, any
updated projections which have been prepared by the Borrower, the
Guarantors and their Subsidiaries, updating those projections delivered
to the Banks and referred to in sec.8.4.2 or, if applicable, updating
any later such projections delivered in response to a request pursuant
to this sec.9.4(e); and
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(f) from time to time such other financial data and
information (including accountants, management letters) as the Agent or
any Bank may reasonably request.
9.5. NOTICES.
9.5.1. DEFAULTS. The Borrower and the Guarantors will promptly
notify the Agent and each of the Banks in writing of the occurrence of
any Default or Event of Default. If any Person shall give any notice or
take any other action in respect of a claimed default (whether or not
constituting an Event of Default) under this Credit Agreement or any
other note, evidence of indebtedness, indenture or other obligation to
which or with respect to which the Borrower, any Guarantor or any of
its Subsidiaries is a party or obligor, whether as principal,
guarantor, surety or otherwise, the Borrower and the Guarantors shall
forthwith give written notice thereof to the Agent and each of the
Banks, describing the notice or action and the nature of the claimed
default.
9.5.2. ENVIRONMENTAL EVENTS. The Borrower will promptly give
notice to the Agent and each of the Banks (a) of any violation of any
Environmental Law that the Borrower, the Guarantors or any of its
Subsidiaries reports in writing or is reportable by such Person in
writing (or for which any written report supplemental to any oral
report is made) to any federal, state or local environmental agency if
such a violation could reasonably be expected to have a Material
Adverse Effect and (b) upon becoming aware thereof, of any inquiry,
proceeding, investigation, or other action, including a notice from any
agency of potential environmental liability, of any federal, state or
local environmental agency or board, that has the potential to have a
Material Adverse Effect.
9.5.3. NOTICE OF LITIGATION AND JUDGMENTS. The Borrower and
the Guarantors will, and will cause each of its Subsidiaries to, give
notice to the Agent and each of the Banks in writing within fifteen
(15) days of becoming aware of any litigation or proceedings threatened
in writing or any pending litigation and proceedings affecting the
Borrower, any Guarantor or any of its Subsidiaries or to which the
Borrower, any Guarantor or any of its Subsidiaries is or becomes a
party involving an uninsured claim against the Borrower, any Guarantor
or any of its Subsidiaries that could reasonably be expected to have a
materially adverse effect on the Borrower, the Guarantors or any of its
Subsidiaries and stating the nature and status of such litigation or
proceedings. The Borrower and each Guarantor will, and will cause each
of its Subsidiaries to, give notice to the Agent and each of the Banks,
in writing, in form and detail satisfactory to the Agent, within ten
(10) days of any judgment not covered by insurance, final or otherwise,
against any Borrower, Guarantor or any of its Subsidiaries in an amount
in excess of $3,000,000.
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9.6. CORPORATE EXISTENCE; MAINTENANCE OF PROPERTIES. Each of the
Borrower and the Guarantors will do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence, rights and
franchises and those of its Subsidiaries and will not, and will not cause or
permit any of its Subsidiaries to, convert to a limited liability company. Each
(a) will cause all of its properties and those of its Subsidiaries used or
useful in the conduct of its business or the business of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment, (b) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrower or such Guarantor may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times, and (c) will, and will cause each of its Subsidiaries to, continue
to engage primarily in the businesses now conducted by them and in related
businesses; PROVIDED that nothing in this sec.9.6 shall prevent the Borrower or
any Guarantor from discontinuing the operation and maintenance of any of its
properties or any of those of its Subsidiaries or dissolving any such Subsidiary
(unless such Subsidiary is a Guarantor and a Material Subsidiary hereunder) if
such discontinuance or dissolution, as the case may be, is, in the judgment of
the Borrower or Guarantor, desirable in the conduct of its or their business and
that do not in the aggregate materially adversely affect the business of the
Borrower, the Guarantors and its Subsidiaries on a consolidated basis.
9.7. INSURANCE. The Borrower and the Guarantors will, and will cause
each of its Subsidiaries to, maintain with financially sound and reputable
insurers insurance with respect to its properties and business against such
casualties and contingencies as shall be in accordance with the general
practices of businesses engaged in similar activities in similar geographic
areas and in amounts, containing such terms, in such forms and for such periods
as may be reasonable and prudent.
9.8. TAXES. The Borrower and the Guarantors will, and will cause each
of its Subsidiaries to, duly pay and discharge, or cause to be paid and
discharged, before the same shall become overdue, all taxes, assessments and
other governmental charges imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its property; PROVIDED that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Borrower, such Guarantor or such Subsidiary shall have set aside on
its books adequate reserves with respect thereto; and PROVIDED FURTHER that the
Borrower, the Guarantors and each Subsidiary of the Borrower and the Guarantors
will pay all such taxes, assessments, charges, levies or claims forthwith upon
the commencement of proceedings to foreclose any lien that may have attached as
security therefor.
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9.9. INSPECTION OF PROPERTIES AND BOOKS, ETC.
9.9.1. GENERAL. The Borrower and the Guarantors shall permit
the Banks, through the Agent or any of the Banks' other designated
representatives, to visit and inspect any of the properties of the
Borrower, any Guarantor or any of their Subsidiaries, to examine the
books of account of the Borrower, any Guarantor and their Subsidiaries
(and to make copies thereof and extracts therefrom), and to discuss the
affairs, finances and accounts of the Borrower, any Guarantor and their
Subsidiaries with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as the Agent or
any Bank may reasonably request and, unless a Default or Event of
Default has occurred and is continuing, at the Agent's or such Bank's
expense. Each Bank agrees to keep confidential any and all of the
information obtained pursuant to this sec.9.9.1, provided that (a) such
information may be available (i) for inspection or examination by any
governmental regulatory authority having jurisdiction over the Agent or
any Bank, (ii) in connection with any enforcement of such Bank's rights
and (iii) as required by any applicable laws, rules, regulations,
orders or decrees and (b) such information may be made available to any
bank or lending institution in connection with the assignment by any
Bank of, or the granting by any Bank of participations in, the Loans
hereunder provided that such bank or lending institution agrees to
comply with the provisions of this sentence as if such bank or lending
institution were a Bank hereunder.
9.9.2. COMMUNICATIONS WITH ACCOUNTANTS. The Borrower and the
Guarantors authorizes the Agent and, if accompanied by the Agent, the
Banks to communicate directly with the Borrower's and such Guarantor's
independent certified public accountants and authorizes such
accountants to disclose to the Agent and the Banks any and all
financial statements and other supporting financial documents and
schedules including copies of any management letter with respect to the
business, financial condition and other affairs of the Borrower, the
Guarantors or any of their Subsidiaries; PROVIDED HOWEVER, the Agent
shall provide the Borrower with prior written notice of such
communication. At the request of the Agent, the Borrower and the
Guarantors shall deliver a letter addressed to such accountants
instructing them to comply with the provisions of this sec.9.9.2.
9.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The
Borrower and the Guarantors will, and will cause each of its Subsidiaries to,
comply with (a) the applicable laws and regulations wherever its business is
conducted, including all Environmental Laws except where such noncompliance
would not have a Material Adverse Effect, (b) the provisions of its charter
documents and by-laws, (c) all agreements and instruments by which it or any of
its properties may be bound except where such noncompliance would not have a
Material Adverse Effect and (d) all applicable decrees, orders, and judgments
except where such noncompliance would not have a Material Adverse Effect. If any
authorization, consent, approval, permit or license from any officer, agency or
instrumentality of
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any government shall become necessary or required in order that the Borrower,
any Guarantor or any of its Subsidiaries may fulfill any of its obligations
hereunder or any of the other Loan Documents to which the Borrower, such
Guarantor or such Subsidiary is a party, the Borrower or Guarantor, as the case
may be, will, or (as the case may be) will cause such Subsidiary to, immediately
take or cause to be taken all reasonable steps within the power of the Borrower,
such Guarantor or such Subsidiary to obtain such authorization, consent,
approval, permit or license and furnish the Agent and the Banks with evidence
thereof.
9.11. EMPLOYEE BENEFIT PLANS. The Borrower will (a) promptly upon
filing the same with the Department of Labor or Internal Revenue Service furnish
to the Agent a copy of the most recent actuarial statement required to be
submitted under sec.103(d) of ERISA and Annual Report, Form 5500, with all
required attachments, in respect of each Guaranteed Pension Plan and (b)
promptly upon receipt or dispatch, furnish to the Agent any notice, report or
demand sent or received in respect of a Guaranteed Pension Plan under secs.302,
4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in respect of a
Multiemployer Plan, under secs.4041A, 4202, 4219, 4242, or 4245 of ERISA.
9.12. USE OF PROCEEDS. The Borrower will use the proceeds of the Loans
solely for working capital and general corporate purposes (including to finance
all or any portion of the purchase price of an acquisition permitted hereunder)
and to repurchase its capital stock to be held as treasury stock, restored to
unissued status or eliminated from its authorized shares, provided that such
purchase does not violate Regulation U of the Board of Governors of the Federal
Reserve System. The Borrower will obtain Letters of Credit solely for working
capital and general corporate purposes.
9.13. NEW GUARANTORS. In the event any Subsidiary organized under the
laws of the United States of America or any State thereof is formed or acquired
after the date hereof, such Subsidiary shall, on the date of its formation or
acquisition, become a guarantor hereunder and shall executed and deliver to the
Agent a guaranty in form and substance satisfactory to the Agent.
9.14. FURTHER ASSURANCES. The Borrower will, and will cause each of its
Subsidiaries to, cooperate with the Banks and the Agent and execute such further
instruments and documents as the Banks or the Agent shall reasonably request to
carry out to their satisfaction the transactions contemplated by this Credit
Agreement and the other Loan Documents.
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
Each of the Borrower and the Guarantors covenants and agrees that, so
long as any Loan, Unpaid Reimbursement Obligation, Letter of Credit or Note is
outstanding or any Bank has any obligation to make any Loans or the Agent has
any obligations to issue, extend or renew any Letters of Credit:
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10.1. RESTRICTIONS ON INDEBTEDNESS. Each of the Borrower and the
Guarantors will not, and will not permit any of its Subsidiaries to, create,
incur, assume, guarantee or be or remain liable, contingently or otherwise, with
respect to any Indebtedness other than:
(a) Indebtedness to the Banks and the Agent arising under any
of the Loan Documents;
(b) current liabilities of the Borrower, the Guarantors or
such Subsidiary incurred in the ordinary course of business not
incurred through (i) the borrowing of money, or (ii) the obtaining of
credit except for credit on an open account basis customarily extended
and in fact extended in connection with normal purchases of goods and
services;
(c) Indebtedness in respect of taxes, assessments,
governmental charges or levies and claims for labor, materials and
supplies to the extent that payment therefor shall not at the time be
required to be made in accordance with the provisions of sec.9.8;
(d) Indebtedness in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal
so long as execution is not levied thereunder or in respect of which
the Borrower, any Guarantor or such Subsidiary shall at the time in
good faith be prosecuting an appeal or proceedings for review and in
respect of which a stay of execution shall have been obtained pending
such appeal or review;
(e) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the
ordinary course of business;
(f) Indebtedness existing on the date hereof and listed and
described on SCHEDULE 10.1 hereto;
(g) Indebtedness of a Subsidiary of the Borrower to the
Borrower so long as such Subsidiary is a Guarantor hereunder or
Indebtedness of the Borrower to any Guarantor or Indebtedness of a
Guarantor to another Guarantor;
(h) Indebtedness not otherwise permitted hereunder, provided
that the aggregate principal amount of all such Indebtedness PLUS the
aggregate principal amount of all Indebtedness permitted by sec.10.1(f)
does not exceed $40,000,000 at any time; and
(i) Indebtedness of a Foreign Material Subsidiary to the
Borrower or any other Subsidiary incurred in connection with, and to
the extent permitted by, sec.10.3(i).
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10.2. RESTRICTIONS ON LIENS. The Borrower and each of the Guarantors
will not, and will not permit any of its Subsidiaries to, (a) create or incur or
suffer to be created or incurred or to exist any lien, encumbrance, mortgage,
pledge, charge, restriction or other security interest of any kind upon any of
its property or assets of any character whether now owned or hereafter acquired,
or upon the income or profits therefrom; (b) transfer any of such property or
assets or the income or profits therefrom for the purpose of subjecting the same
to the payment of Indebtedness or performance of any other obligation in
priority to payment of its general creditors; (c) acquire, or agree or have an
option to acquire, any property or assets upon conditional sale or other title
retention or purchase money security agreement, device or arrangement; (d)
suffer to exist for a period of more than thirty (30) days after the same shall
have been incurred any Indebtedness or claim or demand against it that if unpaid
might by law or upon bankruptcy or insolvency, or otherwise, be given any
priority whatsoever over its general creditors; or (e) sell, assign, pledge or
otherwise transfer any accounts, contract rights, general intangibles, chattel
paper or instruments, with or without recourse; PROVIDED that the Borrower, the
Guarantors and any Subsidiary of the Borrower or any Guarantor may create or
incur or suffer to be created or incurred or to exist:
(a) liens in favor of the Borrower or any Guarantor on all or
part of the assets of Subsidiaries of the Borrower or any Guarantor
securing Indebtedness owing by Subsidiaries of the Borrower or any
Guarantor, as the case may be, to the Borrower or any Guarantor;
(b) liens to secure taxes, assessments and other government
charges in respect of obligations not overdue or liens on properties to
secure claims for labor, material or supplies in respect of obligations
not overdue, or which are being contested in good faith by appropriate
proceedings diligently conducted and with respect to which adequate
reserves are being maintained in accordance with generally accepted
accounting principles so long as such liens are not being foreclosed;
(c) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(d) liens on properties in respect of judgments or awards, the
Indebtedness with respect to which is permitted by sec.10.1(d);
(e) liens of carriers, warehousemen, mechanics and
materialmen, and other like liens on properties in respect of
obligations not overdue;
(f) encumbrances on Real Estate consisting of easements,
rights of way, zoning restrictions, restrictions on the use of real
property and defects and irregularities in the title thereto,
landlord's or lessor's liens under leases to which the Borrower, any
Guarantor or a Subsidiary of the Borrower or Guarantor is a party, and
other minor liens or encumbrances none of which in the opinion of the
Borrower or Guarantor interferes materially with the
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use of the property affected in the ordinary conduct of the business of
the Borrower, the Guarantors and their Subsidiaries, which defects do
not individually or in the aggregate have a materially adverse effect
on the business of the Borrower or Guarantor individually or of the
Borrower, the Guarantors and its Subsidiaries on a consolidated basis;
(g) liens existing on the date hereof and listed on SCHEDULE
10.2 hereto; and
(h) purchase money security interests in or purchase money
mortgages on real or personal property acquired after the date hereof
to secure purchase money Indebtedness incurred in connection with the
acquisition after the date hereof of any real or personal property by
the Borrower, any Guarantor or any Subsidiary, incurred in connection
with the acquisition of such property, which security interests or
mortgages cover only the real or personal property so acquired and
liens in favor of lessors under Capitalized Leases on assets subject to
Capitalized Leases and provided such purchase money security interest,
purchase money mortgage or liens on assets subject to Capitalized
Leases does not secure Indebtedness in excess of $20,000,000 in the
aggregate.
10.3. RESTRICTIONS ON INVESTMENTS. The Borrower and each of the
Guarantors will not, and will not permit any of its Subsidiaries to, make or
permit to exist or to remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United
States of America that mature within three (3) years from the date of
purchase by the Borrower;
(b) demand deposits, certificates of deposit, bankers
acceptances and time deposits of United States banks or banks organized
under the laws of any OECD nation having total assets in excess of
$500,000,000;
(c) securities commonly known as "bankers acceptances" and
"commercial paper" issued by a corporation organized and existing under
the laws of the United States of America or any state thereof that at
the time of purchase have been rated and the ratings for which are not
less than "P 1" if rated by Moody's Investors Services, Inc., and not
less than "A 1" if rated by Standard and Poor's and commercial paper
known as "repurchase agreements" which are at least 101% secured by
collateral that meets the criteria set forth in paragraphs (a) and (b)
above, with such collateral being held by a third party custodian;
(d) Investments or publicly traded corporate debt instruments
which have a minimum rating of "A" by a major recognized rating service
reasonably acceptable to the Agent and on money market funds that
invest all of their assets in securities meeting the criteria set forth
in paragraphs (a) - (c) above;
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(e) Investments existing on the date hereof and listed on
SCHEDULE 10.3 hereto;
(f) Investments with respect to Indebtedness permitted by
sec.10.1(i) so long as such entities remain Subsidiaries of the
Borrower and remain a Guarantor hereunder;
(g) Investments consisting of the Guaranty or Investments by
the Borrower or the Guarantors in Subsidiaries of the Borrower or such
Guarantor existing on the Closing Date;
(h) Investments consisting of promissory notes received as
proceeds of asset dispositions permitted by sec.10.5.2 and Investments
consisting of the Permitted Acquisitions.
(i) Investments by the Borrower or a Guarantor in a Guarantor
and Investments in Foreign Material Subsidiaries, PROVIDED that the
aggregate amount of Investments made after the date hereof in such
Foreign Material Subsidiaries shall not, as the end of any fiscal year,
exceed 20% of Consolidated Tangible Net Worth for such year;
(j) Investments in the capital stock of the Borrower which is
held by the Borrower as treasury stock, is restored to unissued status
or is eliminated from authorized shares; and
(k) Investments not otherwise specified hereunder, provided
the aggregate amount of all such Investments shall not exceed
$15,000,000 at any time.
10.4. DISTRIBUTIONS. Neither the Borrower nor any Guarantor will make
any Distributions; PROVIDED, HOWEVER, so long as no Default or Event of Default
has occurred and is continuing, any Subsidiary of the Borrower shall be
permitted to make Distributions to the Borrower or to any other Subsidiary of
the Borrower which is its parent.
10.5. MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
10.5.1. MERGERS AND ACQUISITIONS. The Borrower and each of the
Guarantors will not, and will not permit any of its Subsidiaries to,
become a party to any merger or consolidation, or agree to or effect
any asset acquisition or stock acquisition other than (a) the
acquisition of assets in the ordinary course of business consistent
with past practices; (b) other asset or stock acquisitions of Persons
in the same or a similar line of business as the Borrower, the
Guarantors or its Subsidiaries (the "Permitted Acquisitions") where (i)
the Borrower has provided the Agent with five (5) Business Days prior
written notice of such Permitted Acquisition, which notice shall
include a reasonable detailed description of such Permitted Acquisition
and the documents, agreements and instruments to be entered into in
connection
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with such Permitted Acquisition; (ii) the business to be acquired would
not subject the Banks or either of the Bank Agents to regulatory or
third party approvals in connection with the exercise of their rights
and remedies under this Credit Agreement or any other Loan Documents;
(iii) the business and assets so acquired shall be acquired by the
Borrower, Guarantor or Subsidiary free and clear of all liens and all
Indebtedness, other than as permitted by sec.10.1 and sec.10.2 hereof,
(iv) the Borrower have demonstrated to the reasonable satisfaction of
the Agent, based on a pro forma Compliance Certificate, compliance with
sec.11 hereof on a Pro Forma Basis immediately prior to and after
giving effect to such Permitted Acquisition; (v) no Default or Event of
Default has occurred and is continuing or would exists as a result of
giving effect to such Permitted Acquisition; (vi) to the extent the
Borrower or a Guarantor is effecting such acquisition, the Borrower or
such Guarantor, as the case may be, must be the surviving entity; (vii)
the Borrower has demonstrated to the satisfaction of the Agent that
each of the EBITDA (for the four most recent fiscal quarters, treated
as a single accounting period) and Consolidated Net Income (for the
four most recent fiscal quarters, treated as a single accounting
period) of the entity to be acquired is greater than $0; and (viii) the
aggregate purchase price (which shall include, without limitation, any
cash or other consideration paid by the purchaser, any Indebtedness or
other liabilities assumed by the purchaser and any Indebtedness
incurred by the purchaser to the seller) for any single Permitted
Acquisition or series of related acquisitions does not exceed
$75,000,000; (c) the merger or consolidation of one or more of the
Subsidiaries of the Borrower or the Guarantors with and into the
Borrower or Guarantor, or (d) the merger or consolidation of two or
more Subsidiaries of the Borrower or Guarantors.
10.5.2. DISPOSITION OF ASSETS. The Borrower and the Guarantors
will not, and will not permit any of its Subsidiaries to, become a
party to or agree to or effect any disposition of assets, other than
the disposition of assets in the ordinary course of business,
consistent with past practices; PROVIDED, HOWEVER, so long as no
Default or Event of Default has occurred and is continuing or would
exist as a result thereof, (a) any Subsidiary may sell, lease, transfer
or otherwise dispose of all or any portion of its assets to the
Borrower or any Guarantor; (b) any Subsidiary which is not a Material
Subsidiary may dispose of all or any portion of its assets to any other
Person, and such Subsidiary may thereafter be dissolved or liquidated;
and (c) the Borrower and the Guarantors shall be permitted to sell the
assets or the capital stock of any Subsidiary which is not a Material
Subsidiary and if such Subsidiary is also a Guarantor such Subsidiary
shall cease being a Guarantor upon the effectiveness of such sale,
transfer or disposition.
10.6. SALE AND LEASEBACK. The Borrower and the Guarantors will not, and
will not permit any of its Subsidiaries to, enter into any arrangement, directly
or indirectly, whereby the Borrower, Guarantor or any Subsidiary of the Borrower
or Guarantor shall sell or transfer any property owned by it in order then or
thereafter
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to lease such property or lease other property that the Borrower, Guarantor or
any Subsidiary of the Borrower or Guarantor intends to use for substantially the
same purpose as the property being sold or transferred.
10.7. COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower and the
Guarantors will not, and will not permit any of its Subsidiaries to, (a) use any
of the Real Estate or any portion thereof for the handling, processing, storage
or disposal of Hazardous Substances in violation of any Environmental Laws, (b)
cause or permit to be located on any of the Real Estate any underground tank or
other underground storage receptacle for Hazardous Substances in violation of
any Environmental Laws, (c) generate any Hazardous Substances on any of the Real
Estate in violation of any Environmental Laws, (d) conduct any activity at any
Real Estate or use any Real Estate in any manner so as to cause a release (i.e.
releasing, spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, disposing or dumping) or threatened release of
Hazardous Substances on, upon or into the Real Estate or (e) otherwise conduct
any activity at any Real Estate or use any Real Estate in any manner that would
violate any Environmental Law or bring such Real Estate in violation of any
Environmental Law.
10.8. EMPLOYEE BENEFIT PLANS. Neither the Borrower nor any ERISA
Affiliate will
(a) engage in any "prohibited transaction" within the meaning
of sec.406 of ERISA or sec.4975 of the Code which could result in a
material liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in sec.302 of
ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of the Borrower or any of its Subsidiaries pursuant to
sec.302(f) or sec.4068 of ERISA; or
(d) amend any Guaranteed Pension in circumstances requiring
the posting of security pursuant to sec.307 of ERISA or sec.401(a)(29)
of the Code; or
(e) permit or take any action which would result in the
aggregate benefit liabilities (with the meaning of sec.4001 of ERISA)
of all Guaranteed Pension Plans exceeding the value of the aggregate
assets of such Plans, disregarding for this purpose the benefit
liabilities and assets of any such Plan with assets in excess of
benefit liabilities by more than $5,000,000.
10.9. TRANSACTIONS WITH AFFILIATES. The Borrower and the Guarantors
will not, and will not allow its Subsidiaries to, engage in transactions with
its Affiliates (other than with and among its respective Subsidiaries) except
for transactions
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which are on terms no less favorable to the Borrower, such Guarantor or such
Subsidiary than the Borrower, such Guarantor or such Subsidiary could obtain in
arms-length transactions from third parties which are not Affiliates.
10.10. FISCAL YEAR. None of the Borrower will change the date of the
end of its fiscal year from that referred to in sec.8.21 hereof.
10.11. UPSTREAM LIMITATIONS. Neither the Borrower nor the Guarantors
will, nor will they permit any of the Foreign Material Subsidiaries to enter
into any agreement, contract or arrangement (other than the Credit Agreement and
the other Loan Documents) restricting the ability of such Guarantor or such
Subsidiary to pay or make dividends or distributions in cash or kind to the
Borrower, the Guarantors or to any such Subsidiary, to make loans, advances or
other payments of whatsoever nature to the Borrower, the Guarantors or to any
such Subsidiary or to make transfer or distributions of all or any part of its
assets to the Borrower, the Guarantors or to any such Subsidiary of such
Subsidiary.
11. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower and each of the Guarantors covenants and agrees that, so
long as any Loan, Unpaid Reimbursement Obligation, Letter of Credit or Note is
outstanding or any Bank has any obligation to make any Loans or the Agent has
any obligation to issue, extend or renew any Letters of Credit:
11.1. LEVERAGE RATIO. The Borrower and the Guarantors will not permit,
at the end of any fiscal quarter, the Leverage Ratio to exceed 2.50:1.00.
11.2. PROFITABLE OPERATIONS. The Borrower and each of the Guarantors
will not permit Consolidated Net Income (exclusive of all noncash writedowns
taken during or with respect to such period in connection with a Permitted
Acquisition in an amount not to exceed $50,000,000 in the aggregate during the
term of this Credit Agreement) for any fiscal quarter to be less than $1.00.
11.3. DEBT SERVICE. Neither the Borrower nor the Guarantors will, at
the end of any fiscal quarter, permit the ratio of (a) EBIT for the period of
four consecutive fiscal quarters (treated as a single accounting period) ending
on such date to (b) Consolidated Total Interest Expense for the period of four
consecutive fiscal quarters (treated as a single accounting period) ending on
such date, to be less 3.50:1.00.
11.4. CURRENT RATIO. Neither the Borrower nor the Guarantors will
permit the ratio of (a) Consolidated Current Assets to (b) Consolidated Current
Liabilities to be less than 2.00:1.00 at the end of any fiscal quarter.
11.5. CONSOLIDATED NET WORTH. Neither the Borrower nor the Guarantors
will permit Consolidated Net Worth (which, for purposes of this sec.11.5, shall
be calculated by adding back (A) any non-cash writedowns taken in connection
with a Permitted Acquisition in an amount not to exceed $50,000,000 in the
aggregate
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during the term of this Credit Agreement and (B) up to $35,000,000 from the
purchase of the Borrower's public securities) at any time to be less than the
sum of (a) $150,000,000 PLUS (b) on a cumulative basis, 50% of positive
Consolidated Net Income for each fiscal quarter beginning with the fiscal
quarter ended June 30, 1997, PLUS (c) 100% of the net proceeds of any sale by
the Borrower or Guarantor of (i) equity securities issued by the Borrower or
Guarantor or (ii) warrants or subscription rights for equity securities issued
by the Borrower or Guarantor, in each case other than to the Borrower or any
Subsidiary.
12. CLOSING CONDITIONS.
The obligations of the Banks to make the initial Revolving Credit Loans
and of the Agent to issue any initial Letters of Credit shall be subject to the
satisfaction of the following conditions precedent:
12.1. LOAN DOCUMENTS. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the Banks.
Each Bank shall have received a fully executed copy of each such document.
12.2. CERTIFIED COPIES OF CHARTER DOCUMENTS. Each of the Banks shall
have received from the Borrower and each Guarantor a copy, certified by a duly
authorized officer of such Person to be true and complete on the Closing Date,
of each of (a) its charter or other incorporation documents as in effect on such
date of certification, and (b) its by-laws as in effect on such date.
12.3. CORPORATE ACTION. All corporate action necessary for the valid
execution, delivery and performance by the Borrower and each Guarantor of this
Credit Agreement and the other Loan Documents to which it is or is to become a
party shall have been duly and effectively taken, and evidence thereof
satisfactory to the Banks shall have been provided to each of the Banks.
12.4. INCUMBENCY CERTIFICATE. Each of the Banks shall have received
from the Borrower and each of the Guarantors an incumbency certificate, dated as
of the Closing Date, signed by a duly authorized officer of the Borrower,
Guarantor or such Subsidiary, and giving the name and bearing a specimen
signature of each individual who shall be authorized: (a) to sign, in the name
and on behalf of the Borrower, the Guarantors or such Subsidiary, each of the
Loan Documents to which the Borrower, Guarantor or such Subsidiary is or is to
become a party; (b) in the case of the Borrower, to make Loan Requests and
Conversion Requests and to apply for Letters of Credit; and (c) to give notices
and to take other action on its behalf under the Loan Documents.
12.5. UCC SEARCH RESULTS. The Agent shall have received the results of
UCC searches, indicating no liens other than Permitted Liens and otherwise in
form and substance satisfactory to the Agent.
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12.6. CERTIFICATES OF INSURANCE. The Agent shall have received a
certificate of insurance from an independent insurance broker dated as of the
Closing Date, identifying insurers, types of insurance, insurance limits, and
policy terms, and otherwise describing the insurance obtained in accordance with
the provisions of the Credit Agreement.
12.7. SOLVENCY CERTIFICATE. Each of the Banks shall have received an
officer's certificate of the Borrower dated as of the Closing Date as to the
solvency of the Borrower, the Guarantors and its Subsidiaries following the
consummation of the transactions contemplated herein and in form and substance
satisfactory to the Banks.
12.8. OPINION OF COUNSEL. Each of the Banks and the Agent shall have
received a favorable legal opinion addressed to the Banks and the Agent, dated
as of the Closing Date, in form and substance satisfactory to the Banks and the
Agent, from Hale & Dorr, counsel to the Borrower, the Guarantors and its
Subsidiaries.
12.9. PAYMENT OF FEES. The Borrower shall have paid to the Agent any
fees required pursuant to the Fee Letter.
12.10. PAYOFF LETTER. The Agent shall have received a payoff letter
from each of the Prior Lenders, indicating the amount of the loan obligations of
the Borrower to such Prior Lenders to be discharged on the Closing Date.
12.11. DISBURSEMENT INSTRUCTIONS. The Agent shall have received
disbursement instructions from the Borrower, indicating that a portion of the
proceeds of the Revolving Credit Loan, in an amount equal to the aggregate loan
obligations of the Borrower to the Prior Lenders are paid to the Prior Lenders.
13. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan, including the Revolving
Credit Loan and the Term Loan, and of the Agent to issue, extend or renew any
Letter of Credit, in each case whether on or after the Closing Date, shall also
be subject to the satisfaction of the following conditions precedent:
13.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of the Borrower, the Guarantors and its
Subsidiaries contained in this Credit Agreement, the other Loan Documents or in
any document or instrument delivered pursuant to or in connection with this
Credit Agreement shall be true as of the date as of which they were made and
shall also be true at and as of the time of the making of such Loan or the
issuance, extension or renewal of such Letter of Credit, with the same effect as
if made at and as of that time (except to the extent of changes resulting from
transactions contemplated or permitted by this Credit Agreement and the other
Loan Documents and changes occurring in the ordinary course of business that
singly or in the aggregate are not materially adverse, and to the extent that
such representations and warranties relate expressly
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to an earlier date) and no Default or Event of Default shall have occurred and
be continuing.
13.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Agent would make it illegal for the Agent to
issue, extend or renew such Letter of Credit.
13.3. GOVERNMENTAL REGULATION. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
13.4. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be reasonably satisfactory in
substance and in form to the Banks and to the Agent and the Agent's Special
Counsel, and the Banks, the Agent and such counsel shall have received all
information and such counterpart originals or certified or other copies of such
documents as the Agent may reasonably request.
14. EVENTS OF DEFAULT; ACCELERATION; ETC.
14.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("Events of Default" or, if the giving of notice or the lapse of time or
both is required, then, prior to such notice or lapse of time, "Defaults") shall
occur:
(a) the Borrower shall fail to pay any principal of the Loans
or any Reimbursement Obligation when the same shall become due and
payable, whether at the stated date of maturity or any accelerated date
of maturity or at any other date fixed for payment;
(b) the Borrower shall fail to pay any interest on the Loans,
the commitment fee, any Letter of Credit Fee, the Agent's fee, or other
sums due hereunder or under any of the other Loan Documents, when the
same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed
for payment;
(c) the Borrower or the Guarantors shall fail to comply with
any of its covenants contained in secs.9.1, 9.4, 9.5.1, 9.5.2, 9.5.3,
9.12, 9.13, 10 or 11;
(d) the Borrower, any Guarantor or any of its Subsidiaries
shall fail to perform any term, covenant or agreement contained herein
or in any of the other Loan Documents (other than those specified
elsewhere in this sec.14.1) for
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thirty (30) days after written notice of such failure has been given to
the Borrower by the Agent;
(e) any representation or warranty of the Borrower, any
Guarantor or any of its Subsidiaries in this Credit Agreement or any of
the other Loan Documents or in any other document or instrument
delivered pursuant to or in connection with this Credit Agreement shall
prove to have been false in any material respect upon the date when
made or deemed to have been made or repeated;
(f) the Borrower, any Guarantor or any of its Subsidiaries
(other than a Guarantor which is not a Material Subsidiary of the
Borrower or a Subsidiary which is not a Material Subsidiary unless the
Borrower or any Material Subsidiary has been adversely effected by the
occurrence of such event (a "DeMinimis Subsidiary")) shall fail to pay
at maturity, or within any applicable period of grace, any obligation
for borrowed money or credit received or in respect of any Capitalized
Leases, or fail to observe or perform any material term, covenant or
agreement contained in any agreement by which it is bound, evidencing
or securing borrowed money or credit received or in respect of any
Capitalized Leases for such period of time as would permit (assuming
the giving of appropriate notice if required) the holder or holders
thereof or of any obligations issued thereunder to accelerate the
maturity thereof;
(g) the Borrower, any Guarantor or any of their Subsidiaries
(other than a DeMinimis Subsidiary) shall make an assignment for the
benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of the Borrower, such Guarantor or any of its
Subsidiaries or of any substantial part of the assets of the Borrower,
any Guarantor or any of its Subsidiaries or shall commence any case or
other proceeding relating to the Borrower, any Guarantor or any of its
Subsidiaries under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar
law of any jurisdiction, now or hereafter in effect, or shall take any
action to authorize or in furtherance of any of the foregoing, or if
any such petition or application shall be filed or any such case or
other proceeding shall be commenced against the Borrower, any Guarantor
or any of its Subsidiaries (other than a DeMinimis Subsidiary) and the
Borrower, any Guarantor or any of its Subsidiaries shall indicate its
approval thereof, consent thereto or acquiescence therein or such
petition or application shall not have been dismissed within forty-five
(45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower, any
Guarantor or any of its Subsidiaries (other than a DeMinimis
Subsidiary)
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bankrupt or insolvent, or approving a petition in any such case or
other proceeding, or a decree or order for relief is entered in respect
of the Borrower, any Guarantor or any Subsidiary (other than a
DeMinimis Subsidiary) of the Borrower or Guarantor in an involuntary
case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any
final judgment against the Borrower, any Guarantor or any of its
Subsidiaries that, with other outstanding final judgments,
undischarged, against the Borrower, such Guarantor or any of its
Subsidiaries exceeds in the aggregate $5,000,000;
(j) if any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded otherwise than in accordance with the
terms thereof or with the express prior written agreement, consent or
approval of the Banks, or any action at law, suit or in equity or other
legal proceeding to cancel, revoke or rescind any of the Loan Documents
shall be commenced by or on behalf of the Borrower, the Guarantors or
any of its Subsidiaries party thereto or any of their respective
stockholders, or any court or any other governmental or regulatory
authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan Documents is illegal, invalid
or unenforceable in accordance with the terms thereof;
(k) the Borrower or any ERISA Affiliate incurs any liability
to the PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA
in an aggregate amount exceed $5,000,000; the Borrower or any ERISA
Affiliate is assessed with withdrawal liability pursuant to Title IV of
ERISA by a Multiemployer Plan requiring aggregate annual payments
exceeding $5,000,000, or any of the following occurs with respect to a
Guaranteed Pension Plan: (i) an ERISA Reportable Event, or a failure to
make a required installment or other payment (within the meaning of
sec.302(f)(1) of ERISA), provided the Agent determines in its
reasonable discretion that such event (A) could be expected to result
in liability of the Borrower to the PBGC or the Plan in an aggregate
amount exceeding $5,000,000 and (B) could constitute grounds for the
termination of such Plan by the PBGC, for the appointment by the
appropriate United States District Court of a trustee to administer
such Plan or for the imposition of a lien in favor of the Guaranteed
Pension Plan; (ii) the appointment by a United States District Court of
a trustee to administer such Plan; or (iii) the institution by the PBGC
of proceedings to terminate such Plan;
(l) the Borrower, any Guarantor or any of its Subsidiaries
shall be enjoined, restrained or in any way prevented by the order of
any court or any administrative or regulatory agency from conducting
any material part of its business, such order shall continue in effect
for more than thirty (30)
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days and such order could reasonably be expected to have a Material
Adverse Effect;
(m) there shall occur any strike, lockout, labor dispute,
embargo, condemnation, act of God or public enemy, or other casualty,
which in any such case causes, for more than fifteen (15) consecutive
days, the cessation or substantial curtailment of revenue producing
activities at any facility of the Borrower, Guarantor or any of its
Subsidiaries if such event or circumstance is not covered by business
interruption insurance and would have a Material Adverse Effect;
(n) there shall occur the loss, suspension or revocation of,
or failure to renew, any license or permit now held or hereafter
acquired by the Borrower, Guarantor or any of its Subsidiaries if such
loss, suspension, revocation or failure to renew would have a Material
Adverse Effect;
(o) the Borrower, Guarantor or any of its Subsidiaries shall
be indicted for a state or federal crime, or any civil or criminal
action shall otherwise have been brought or threatened against the
Borrower, Guarantor or any of its Subsidiaries, a punishment for which
in any such case could include the forfeiture of any assets of the
Borrower, Guarantor or Subsidiary having a fair market value in excess
of $5,000,000;
(p) the Borrower shall at any time, legally or beneficially
own less than 100% of the capital stock of each of the Guarantors, as
adjusted pursuant to any stock split, stock dividend or
recapitalization or reclassification of the capital of such Person; or;
(q) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said
Act) of thirty five percent (35%) or more of the outstanding shares of
common stock of the Borrower; or, during any period of twelve
consecutive calendar months, individuals who were directors of the
Borrower on the first day of such period shall cease to constitute a
majority of the board of directors of the Borrower.
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Majority Banks shall, by notice in writing to
the Borrower declare all amounts owing with respect to this Credit Agreement,
the Notes and the other Loan Documents and all Reimbursement Obligations to be,
and they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower; PROVIDED that in the event of any Event
of Default specified in secs.14.1(g) or 14.1(h), all such amounts shall become
immediately due and payable automatically and without any requirement of notice
from the Agent or any Bank.
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14.2. TERMINATION OF COMMITMENTS. If any one or more of the Events of
Default specified in sec.14.1(g) or sec.14.1(h) shall occur, any unused portion
of the credit hereunder shall forthwith terminate and each of the Banks shall be
relieved of all further obligations to make Loans to the Borrower and the Agent
shall be relieved of all further obligations to issue, extend or renew Letters
of Credit. If any other Event of Default shall have occurred and be continuing,
or if on any Drawdown Date or other date for issuing, extending or renewing any
Letter of Credit the conditions precedent to the making of the Loans to be made
on such Drawdown Date or (as the case may be) to issuing, extending or renewing
such Letter of Credit on such other date are not satisfied, the Agent may and,
upon the request of the Majority Banks, shall, by notice to the Borrower,
terminate the unused portion of the credit hereunder, and upon such notice being
given such unused portion of the credit hereunder shall terminate immediately
and each of the Banks shall be relieved of all further obligations to make Loans
and the Agent shall be relieved of all further obligations to issue, extend or
renew Letters of Credit. No termination of the credit hereunder shall relieve
the Borrower, the Guarantors or any of its Subsidiaries of any of the
Obligations.
14.3. REMEDIES. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to sec.14.1, each Bank, if owed
any amount with respect to the Loans or the Reimbursement Obligations, may, with
the consent of the Majority Banks but not otherwise, proceed to protect and
enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank are evidenced,
including as permitted by applicable law the obtaining of the EX PARTE
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Bank. No remedy herein conferred upon any Bank
or the Agent or the holder of any Note or purchaser of any Letter of Credit
Participation is intended to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute or any
other provision of law.
14.4. DISTRIBUTION OF PROCEEDS. In the event that, following the
occurrence or during the continuance of any Default or Event of Default, the
Agent or any Bank, as the case may be, receives any monies in connection with
the enforcement of any the Loan Documents, such monies shall be distributed for
application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agent in connection with the collection of such monies
by the Agent, for the exercise, protection or enforcement by the Agent
of all or
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any of the rights, remedies, powers and privileges of the Agent under
this Credit Agreement or any of the other Loan Documents or in respect
of the Collateral or in support of any provision of adequate indemnity
to the Agent against any taxes or liens which by law shall have, or may
have, priority over the rights of the Agent to such monies;
(b) Second, to all other Obligations in such order or
preference as the Majority Banks may determine; PROVIDED, HOWEVER, that
distributions in respect of such obligations shall be made (i) PARI
PASSU among Obligations with respect to the Agent's fee payable
pursuant to sec.6.2 and all other Obligations and (ii) Obligations
owing to the Banks with respect to each type of Obligation such as
interest, principal, fees and expenses, shall be made among the Banks
PRO RATA; and PROVIDED, FURTHER, that the Agent may in its discretion
make proper allowance to take into account any Obligations not then due
and payable;
(c) Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Banks and the Agent
of all of the Obligations, to the payment of any obligations required
to be paid pursuant to sec.9-504(1)(c) of the Uniform Commercial Code
of the Commonwealth of Massachusetts; and
(d) Fourth, the excess, if any, shall be returned to the
Borrower or to such other Persons as are entitled thereto.
15. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, any deposits or other sums credited by or due from any of
the Banks to the Borrower or the Guarantors and any securities or other property
of the Borrower or the Guarantors in the possession of such Bank may be applied
to or set off by such Bank against the payment of Obligations and any and all
other liabilities, direct, or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising, of the Borrower or the Guarantors, as
the case may be, to such Bank. Each of the Banks agrees with each other Bank
that (a) if an amount to be set off is to be applied to Indebtedness of the
Borrower or the Guarantors to such Bank, other than Indebtedness evidenced by
the Notes held by such Bank or constituting Reimbursement Obligations owed to
such Bank, such amount shall be applied ratably to such other Indebtedness and
to the Indebtedness evidenced by all such Notes held by such Bank or
constituting Reimbursement Obligations owed to such Bank, and (b) if such Bank
shall receive from the Borrower or Guarantor, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross action, enforcement of the
claim evidenced by the Notes held by, or constituting Reimbursement Obligations
owed to, such Bank by proceedings against the Borrower or Guarantor at law or in
equity or by proof thereof in bankruptcy, reorganization, liquidation,
receivership or similar proceedings, or otherwise, and shall retain and apply to
the payment of the Note or Notes held by, or
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Reimbursement Obligations owed to, such Bank any amount in excess of its ratable
portion of the payments received by all of the Banks with respect to the Notes
held by, and Reimbursement Obligations owed to, all of the Banks, such Bank will
make such disposition and arrangements with the other Banks with respect to such
excess, either by way of distribution, PRO TANTO assignment of claims,
subrogation or otherwise as shall result in each Bank receiving in respect of
the Notes held by it or Reimbursement obligations owed it, its proportionate
payment as contemplated by this Credit Agreement; PROVIDED that if all or any
part of such excess payment is thereafter recovered from such Bank, such
disposition and arrangements shall be rescinded and the amount restored to the
extent of such recovery, but without interest.
16. THE BANK AGENTS.
16.1. AUTHORIZATION.
(a) Each of the Bank Agents is authorized to take such action
on behalf of each of the Banks and to exercise all such powers as are
hereunder and under any of the other Loan Documents and any related
documents delegated to such Bank Agent, together with such powers as
are reasonably incident thereto, PROVIDED that no duties or
responsibilities not expressly assumed herein or therein shall be
implied to have been assumed by such Bank Agent.
(b) The relationship between each Bank Agent and each of the
Banks is that of an independent contractor. The use of the term "Agent"
is for convenience only and is used to describe, as a form of
convention, the independent contractual relationship between each Bank
Agent and each of the Banks. Nothing contained in this Credit Agreement
nor the other Loan Documents shall be construed to create an agency,
trust or other fiduciary relationship between each Bank Agent and any
of the Banks.
(c) As an independent contractor empowered by the Banks to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, each Bank Agent is
nevertheless a "representative" of the Banks, as that term is defined
in Article 1 of the Uniform Commercial Code, for purposes of actions
for the benefit of the Banks and each Bank Agent with respect to all
collateral security and guaranties contemplated by the Loan Documents.
Such actions include the designation of the Agent as "secured party",
"mortgagee" or the like on all financing statements and other documents
and instruments, whether recorded or otherwise, relating to the
attachment, perfection, priority or enforcement of any security
interests, mortgages or deeds of trust in collateral security intended
to secure the payment or performance of any of the Obligations, all for
the benefit of the Banks and each Bank Agent.
16.2. EMPLOYEES AND AGENTS. Each Bank Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take,
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and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Credit Agreement and the other Loan Documents. Each
Bank Agent may utilize the services of such Persons as such Bank Agent in its
sole discretion may reasonably determine, and all reasonable fees and expenses
of any such Persons shall be paid by the Borrower.
16.3. NO LIABILITY. Neither any Bank Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable to the Banks for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that each Bank Agent or
such other Person, as the case may be, may be liable for losses due to its
willful misconduct or gross negligence.
16.4. NO REPRESENTATIONS. Neither of the Bank Agents shall be
responsible for the execution or validity or enforceability of this Credit
Agreement, the Notes, the Letters of Credit, any of the other Loan Documents or
any instrument at any time constituting, or intended to constitute, collateral
security for the Notes, or for the value of any such collateral security or for
the validity, enforceability or collectability of any such amounts owing with
respect to the Notes, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in any
certificate or instrument hereafter furnished to it by or on behalf of the
Borrower, the Guarantors or any of its Subsidiaries, or be bound to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements herein or in any instrument at any time constituting, or
intended to constitute, collateral security for the Notes or to inspect any of
the properties, books or records of the Borrower, the Guarantors or any of its
Subsidiaries. The Agent shall not be bound to ascertain whether any notice,
consent, waiver or request delivered to it by the Borrower or any holder of any
of the Notes shall have been duly authorized or is true, accurate and complete.
Neither Bank Agent has made nor does it now make any representations or
warranties, express or implied, nor does it assume any liability to the Banks,
with respect to the credit worthiness or financial conditions of the Borrower,
the Guarantors or any of its Subsidiaries. Each Bank acknowledges that it has,
independently and without reliance upon either Bank Agent or any other Bank, and
based upon such information and documents as it has deemed appropriate, made its
own credit analysis and decision to enter into this Credit Agreement.
16.5. PAYMENTS.
16.5.1. PAYMENTS TO AGENT. A payment by the Borrower or any
Guarantor to the Agent hereunder or any of the other Loan Documents for
the account of any Bank shall constitute a payment to such Bank. The
Agent agrees promptly to distribute to each Bank such Bank's PRO RATA
share of
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payments received by the Agent for the account of the Banks except as
otherwise expressly provided herein or in any of the other Loan
Documents.
16.5.2. DISTRIBUTION BY AGENT. If in the opinion of the Agent
the distribution of any amount received by it in such capacity
hereunder, under the Notes or under any of the other Loan Documents
might involve it in liability, it may refrain from making distribution
until its right to make distribution shall have been adjudicated by a
court of competent jurisdiction. If a court of competent jurisdiction
shall adjudge that any amount received and distributed by the Agent is
to be repaid, each Person to whom any such distribution shall have been
made shall either repay to the Agent its proportionate share of the
amount so adjudged to be repaid or shall pay over the same in such
manner and to such Persons as shall be determined by such court.
16.5.3. DELINQUENT BANKS. Notwithstanding anything to the
contrary contained in this Credit Agreement or any of the other Loan
Documents, any Bank that fails (a) to make available to the Agent its
PRO RATA share of any Loan or to purchase any Letter of Credit
Participation or (b) to comply with the provisions of sec.15 with
respect to making dispositions and arrangements with the other Banks,
where such Bank's share of any payment received, whether by setoff or
otherwise, is in excess of its PRO RATA share of such payments due and
payable to all of the Banks, in each case as, when and to the full
extent required by the provisions of this Credit Agreement, shall be
deemed delinquent (a "Delinquent Bank") and shall be deemed a
Delinquent Bank until such time as such delinquency is satisfied. A
Delinquent Bank shall be deemed to have assigned any and all payments
due to it from the Borrower and the Guarantors, whether on account of
outstanding Loans, Unpaid Reimbursement Obligations, interest, fees or
otherwise, to the remaining nondelinquent Banks for application to, and
reduction of, their respective PRO RATA shares of all outstanding Loans
and Unpaid Reimbursement Obligations. The Delinquent Bank hereby
authorizes the Agent to distribute such payments to the nondelinquent
Banks in proportion to their respective PRO RATA shares of all
outstanding Loans and Unpaid Reimbursement Obligations. A Delinquent
Bank shall be deemed to have satisfied in full a delinquency when and
if, as a result of application of the assigned payments to all
outstanding Loans and Unpaid Reimbursement Obligations of the
nondelinquent Banks, the Banks' respective PRO RATA shares of all
outstanding Loans and Unpaid Reimbursement Obligations have returned to
those in effect immediately prior to such delinquency and without
giving effect to the nonpayment causing such delinquency.
16.6. HOLDERS OF NOTES. The Agent may deem and treat the payee of any
Note or the purchaser of any Letter of Credit Participation as the absolute
owner or purchaser thereof for all purposes hereof until it shall have been
furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
<PAGE> 77
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16.7. INDEMNITY. The Banks ratably agree hereby to indemnify and hold
harmless each Bank Agent from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which such Bank Agent has not been reimbursed by the Borrower
and the Guarantors as required by sec.17), and liabilities of every nature and
character arising out of or related to this Credit Agreement, the Notes, or any
of the other Loan Documents or the transactions contemplated or evidenced hereby
or thereby, or such Bank Agent's actions taken hereunder or thereunder, except
to the extent that any of the same shall be directly caused by such Bank Agent's
willful misconduct or gross negligence.
16.8. AGENT AS BANK. In its individual capacity, (a) BKB shall have the
same obligations and the same rights, powers and privileges in respect to its
Commitment and the Loans made by it, and as the holder of any of the Notes and
as the purchaser of any Letter of Credit Participations, as it would have were
it not also the Agent and (b) Mellon Bank, N.A .shall have the same obligations
and the same rights, powers and privileges in respect to its Commitment and the
Loans made by it, and as the holder of any of the Notes and as the purchaser of
any Letter of Credit Participations, as it would have were it not also the
Documentation Agent.
16.9. RESIGNATION. Any Bank Agent may resign at any time by giving
sixty (60) days prior written notice thereof to the Banks, the Borrower and the
other Bank Agent Upon any such resignation, the Majority Banks shall have the
right to appoint a successor Bank Agent. Unless a Default or Event of Default
shall have occurred and be continuing, such successor Bank Agent shall be
reasonably acceptable to the Borrower. If no successor Bank Agent shall have
been so appointed by the Majority Banks and shall have accepted such appointment
within thirty (30) days after the retiring Banks Agent's giving of notice of
resignation, then the retiring Bank Agent may, on behalf of the Banks, appoint a
successor Bank Agent, which shall be a financial institution having a rating of
not less than A or its equivalent by Standard & Poor's Corporation. Upon the
acceptance of any appointment as a Bank Agent hereunder by a successor Bank
Agent, such successor Bank Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Bank Agent,
and the retiring Bank Agent shall be discharged from its duties and obligations
hereunder. After any retiring Bank Agent's resignation, the provisions of this
Credit Agreement and the other Loan Documents shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as a Bank Agent.
16.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Bank hereby
agrees that, upon learning of the existence of a Default or an Event of Default,
it shall promptly notify the Agent thereof. The Agent hereby agrees that upon
receipt of any notice under this sec.16.10 it shall promptly notify the other
Banks of the existence of such Default or Event of Default.
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17. EXPENSES.
The Borrower jointly and severally agrees to pay (a) the reasonable
costs of producing and reproducing this Credit Agreement, the other Loan
Documents and the other agreements and instruments mentioned herein, (b) without
duplication of sec.6.3.2 hereof, any taxes (including any interest and penalties
in respect thereto) payable by the Agent or any of the Banks (other than taxes
based upon the Agent's or any Bank's net income) on or with respect to the
transactions contemplated by this Credit Agreement (the Borrower hereby agreeing
to indemnify the Agent and each Bank with respect thereto), (c) the reasonable
fees, expenses and disbursements of the Agent's Special Counsel or any local
counsel to the Agent incurred in connection with the preparation, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
each closing hereunder, and amendments, modifications, approvals, consents or
waivers hereto or hereunder, (d) the fees, expenses and disbursements of the
Agent incurred by the Agent in connection with the preparation, administration
or interpretation of the Loan Documents and other instruments mentioned herein,
including all appraisal charges, (e) all reasonable out-of-pocket expenses
(including without limitation reasonable attorneys' fees and costs, which
attorneys may be employees of any Bank or the Agent, and reasonable consulting,
accounting, appraisal, investment banking and similar professional fees and
charges) incurred by any Bank or the Agent in connection with (i) the
enforcement of or preservation of rights under any of the Loan Documents against
the Borrower, the Guarantors or any of its Subsidiaries or the administration
thereof after the occurrence of a Default or Event of Default and (ii) any
litigation, proceeding or dispute whether arising hereunder or otherwise, in any
way related to any Bank's or the Agent's relationship with the Borrower, the
Guarantors or any of its Subsidiaries and (f) all reasonable fees, expenses and
disbursements of any Bank or the Agent incurred in connection with UCC searches.
The covenants of this sec.17 shall survive payment or satisfaction of all other
Obligations.
18. INDEMNIFICATION.
The Borrower jointly and severally agrees to indemnify and hold
harmless the Bank Agents and the Banks from and against any and all claims,
actions and suits whether groundless or otherwise, and from and against any and
all liabilities, losses, damages and expenses of every nature and character
arising out of this Credit Agreement or any of the other Loan Documents or the
transactions contemplated hereby including, without limitation, (a) any actual
or proposed use by the Borrower, the Guarantors or any of its Subsidiaries of
the proceeds of any of the Loans or Letters of Credit, (b) the Borrower, the
Guarantors or any of its Subsidiaries entering into or performing this Credit
Agreement or any of the other Loan Documents or (c) with respect to the
Borrower, the Guarantors and its Subsidiaries and their respective properties
and assets, the violation of any Environmental Law, the presence, disposal,
escape, seepage, leakage, spillage, discharge, emission, release or threatened
release of any Hazardous Substances or any action, suit, proceeding or
investigation brought or threatened with respect to
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any Hazardous Substances (including, but not limited to, claims with respect to
wrongful death, personal injury or damage to property), in each case including,
without limitation, the reasonable fees and disbursements of counsel and
allocated costs of internal counsel incurred in connection with any such
investigation, litigation or other proceeding except to the extent that any of
the foregoing are directly caused by the gross negligence or willful misconduct
of the party seeking to be indemnified. In litigation, or the preparation
therefor, the Banks and the Bank Agents shall be entitled to select their own
counsel and, in addition to the foregoing indemnity, the Borrower jointly and
severally agrees to pay promptly the reasonable fees and expenses of such
counsel. If, and to the extent that the obligations of the Borrower under this
sec.18 are unenforceable for any reason, the Borrower hereby agrees to make the
maximum contribution to the payment in satisfaction of such obligations which is
permissible under applicable law. The covenants contained in this sec.18 shall
survive payment or satisfaction in full of all other Obligations.
19. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein,
in the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower, the Guarantors or any of its
Subsidiaries pursuant hereto shall be deemed to have been relied upon by the
Banks and the Bank Agents, notwithstanding any investigation heretofore or
hereafter made by any of them, and shall survive the making by the Banks of any
of the Loans and the issuance, extension or renewal of any Letters of Credit, as
herein contemplated, and shall continue in full force and effect so long as any
Letter of Credit or any amount due under this Credit Agreement or the Notes or
any of the other Loan Documents remains outstanding or any Bank has any
obligation to make any Loans or the Agent has any obligation to issue, extend or
renew any Letter of Credit, and for such further time as may be otherwise
expressly specified in this Credit Agreement. All statements contained in any
certificate or other paper delivered to any Bank or the Agent at any time by or
on behalf of the Borrower, the Guarantors or any of its Subsidiaries pursuant
hereto or in connection with the transactions contemplated hereby shall
constitute representations and warranties by the Borrower, the Guarantors or
such Subsidiary hereunder.
20. ASSIGNMENT AND PARTICIPATION.
20.1. CONDITIONS TO ASSIGNMENT BY BANKS. Except as provided herein,
each Bank may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its Commitment Percentage and Commitment and the same portion of
the Loans at the time owing to it, the Notes held by it and its participating
interest in the risk relating to any Letters of Credit); PROVIDED that (a) each
of the Agent and, unless a Default or Event of Default shall have occurred and
be continuing, the Borrower shall have given its prior written consent to such
assignment, which consent, in the case of the Borrower, will not be unreasonably
withheld, (b) each such assignment
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shall be of a constant, and not a varying, percentage of all the assigning
Bank's rights and obligations under this Credit Agreement, (c) each assignment
shall be in an amount that is a minimum amount of $10,000,000 and (d) the
parties to such assignment shall execute and deliver to the Agent, for recording
in the Register (as hereinafter defined), an Assignment and Acceptance,
substantially in the form of EXHIBIT E hereto (an "Assignment and Acceptance"),
together with any Notes subject to such assignment. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
(5) Business Days after the execution thereof, (i) the assignee thereunder shall
be a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder, and (ii) the assigning Bank
shall, to the extent provided in such assignment and upon payment to the Agent
of the registration fee referred to in sec.20.3, be released from its
obligations under this Credit Agreement.
20.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS.
By executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned thereby free
and clear of any adverse claim, the assigning Bank makes no
representation or warranty, express or implied, and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit Agreement or
the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Credit Agreement, the other Loan Documents
or any other instrument or document furnished pursuant hereto or the
attachment, perfection or priority of any security interest or
mortgage,
(b) the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
the Borrower, the Guarantors and its Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the Obligations,
or the performance or observance by the Borrower, the Guarantors and
its Subsidiaries or any other Person primarily or secondarily liable in
respect of any of the Obligations of any of their obligations under
this Credit Agreement or any of the other Loan Documents or any other
instrument or document furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Credit Agreement, together with copies of the most recent financial
statements referred to in sec.8.4 and sec.9.4 and such other documents
and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance;
<PAGE> 81
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(d) such assignee will, independently and without reliance
upon the assigning Bank, the Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Credit Agreement;
(e) such assignee represents and warrants that it is an
Eligible Assignee;
(f) such assignee appoints and authorizes each of the Bank
Agents to take such action as agent on its behalf and to exercise such
powers under this Credit Agreement and the other Loan Documents as are
delegated to the Agent by the terms hereof or thereof, together with
such powers as are reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Credit Agreement are required to be performed by it as a Bank;
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and
(i) such assignee acknowledges that it has made arrangements
with the assigning Bank satisfactory to such assignee with respect to
its PRO RATA share of Letter of Credit Fees in respect of outstanding
Letters of Credit.
20.3. REGISTER. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentage of, and principal amount of the Revolving Credit Loans owing to and
Letter of Credit Participations purchased by, the Banks from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Agent and the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection by the Borrower and
the Banks at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Bank agrees to pay to the
Agent a registration fee in the sum of $2,500.
20.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Agent shall (a) record the information contained therein in
the Register, and (b) give prompt notice thereof to the Borrower and the Banks
(other than the assigning Bank). Within five (5) Business Days after receipt of
such notice, the Borrower, at its own expense, shall execute and deliver to the
Agent, in exchange for each surrendered Note, a new Note to the order of such
Eligible Assignee in an amount equal to the amount assumed by such Eligible
Assignee pursuant to such Assignment and Acceptance and, if the assigning Bank
has
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retained some portion of its obligations hereunder, a new Note to the order of
the assigning Bank in an amount equal to the amount retained by it hereunder.
Such new Notes shall provide that they are replacements for the surrendered
Notes, shall be in an aggregate principal amount equal to the aggregate
principal amount of the surrendered Notes, shall be dated the effective date of
such in Assignment and Acceptance and shall otherwise be substantially the form
of the assigned Notes. Within five (5) days of issuance of any new Notes
pursuant to this sec.20.4, the Borrower shall deliver an opinion of counsel,
addressed to the Banks and the Agent, relating to the due authorization,
execution and delivery of such new Notes and the legality, validity and binding
effect thereof, in form and substance satisfactory to the Banks. The surrendered
Notes shall be cancelled and returned to the Borrower.
20.5. PARTICIPATIONS. Each Bank may sell participations to one or more
banks or other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan Documents; PROVIDED
that (a) each such participation shall be in an amount of not less than
$10,000,000, (b) any such sale or participation shall not affect the rights and
duties of the selling Bank hereunder to the Borrower and (c) the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan Documents shall be
the rights to approve waivers, amendments or modifications that would reduce the
principal of or the interest rate on any Loans, extend the term or increase the
amount of the Commitment of such Bank as it relates to such participant, reduce
the amount of any commitment fees or Letter of Credit Fees to which such
participant is entitled or extend any regularly scheduled payment date for
principal or interest.
20.6. DISCLOSURE. The Borrower agrees that in addition to disclosures
made in accordance with standard and customary banking practices any Bank may
disclose information obtained by such Bank pursuant to this Credit Agreement to
assignees or participants and potential assignees or participants hereunder;
PROVIDED that such assignees or participants or potential assignees or
participants shall agree (a) to treat in confidence such information unless such
information otherwise becomes public knowledge, (b) not to disclose such
information to a third party, except as required by law or legal process and (c)
not to make use of such information for purposes of transactions unrelated to
such contemplated assignment or participation.
20.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER. If any
assignee Bank is an Affiliate of the Borrower or Guarantor, then any such
assignee Bank shall have no right to vote as a Bank hereunder or under any of
the other Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or other modifications to any of the Loan
Documents or for purposes of making requests to the Agent pursuant to sec.14.1
or sec.14.2, and the determination of the Majority Banks shall for all purposes
of this Credit Agreement and the other Loan Documents be made without regard to
such assignee Bank's interest in any of the Loans. If any Bank sells a
participating interest in any of the Loans or Reimbursement Obligations to a
participant, and such participant is the
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Borrower or any Guarantor or an Affiliate of the Borrower or any Guarantor, then
such transferor Bank shall promptly notify the Agent of the sale of such
participation. A transferor Bank shall have no right to vote as a Bank hereunder
or under any of the other Loan Documents for purposes of granting consents or
waivers or for purposes of agreeing to amendments or modifications to any of the
Loan Documents or for purposes of making requests to the Agent pursuant to
sec.14.1 or sec.14.2 to the extent that such participation is beneficially owned
by the Borrower or any Guarantor or any Affiliate of the Borrower or any
Guarantor, and the determination of the Majority Banks shall for all purposes of
this Credit Agreement and the other Loan Documents be made without regard to the
interest of such transferor Bank in the Loans to the extent of such
participation.
20.8. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Bank shall
retain its rights to be indemnified pursuant to sec.17 with respect to any
claims or actions arising prior to the date of such assignment. If any
assignee Bank is not incorporated under the laws of the United States of
America or any state thereof, it shall, prior to the date on which any interest
or fees are payable hereunder or under any of the other Loan Documents for its
account, deliver to the Borrower and the Agent certification as to its
exemption from deduction or withholding of any United States federal income
taxes. If any Reference Bank transfers all of its interest, rights and
obligations under this Credit Agreement, the Agent shall, in consultation with
the Borrower and with the consent of the Borrower and the Majority Banks,
appoint another Bank to act as a Reference Bank hereunder. Anything contained
in this sec.20 to the contrary notwithstanding, any Bank may at any time pledge
all or any portion of its interest and rights under this Credit Agreement
(including all or any portion of its Notes) to any of the twelve Federal
Reserve Banks organized under sec.4 of the Federal Reserve Act, 12 U.S.C.
sec.341. No such pledge or the enforcement thereof shall release the pledgor
Bank from its obligations hereunder or under any of the other Loan Documents.
20.9. ASSIGNMENT BY BORROWER. The Borrower shall not assign or transfer
any of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Banks.
21. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes or any Letter of Credit Applications shall be in
writing and shall be delivered in hand, mailed by United States registered or
certified first class mail, postage prepaid, sent by overnight courier, or sent
by telegraph, telecopy, facsimile or telex and confirmed by delivery via courier
or postal service, addressed as follows:
(a) if to the Borrower or any Guarantor, at Dynatech
Corporation, Three New England Executive Park, Burlington,
Massachusetts 01803,
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Attention: Chief Financial Officer, or at such other address for notice
as the Borrower shall last have furnished in writing to the Person
giving the notice;
(b) if to the Agent, at 100 Federal Street, Boston,
Massachusetts 02110, USA, Attention: Debra E. DelVecchio, Vice
President, or such other address for notice as the Agent shall last
have furnished in writing to the Person giving the notice;
(c) if to the Documentation Agent, at One Boston Place,
Boston, Massachusetts 02108, Attention: Robert H. Summersgill, First
Vice President, or such other address for notice as the Documentation
Agent shall last have furnished in writing to the Person giving the
notice; and
(d) if to any Bank, at such Bank's address set forth on
SCHEDULE 1 hereto, or such other address for notice as such Bank shall
have last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
22. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER AND
THE GUARANTORS AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE
COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS
TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY
SUCH SUIT BEING MADE UPON THE BORROWER OR THE GUARANTORS BY MAIL AT THE ADDRESS
SPECIFIED IN SEC.21. THE BORROWER AND THE GUARANTORS HEREBY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
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23. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
24. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in
several counterparts and by each party on a separate counterpart, each of which
when executed and delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Credit Agreement it shall not
be necessary to produce or account for more than one such counterpart signed by
the party against whom enforcement is sought.
25. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in sec.27.
26. WAIVER OF JURY TRIAL.
Each of the Borrower and the Guarantors hereby waives its right to a
jury trial with respect to any action or claim arising out of any dispute in
connection with this Credit Agreement, the Notes or any of the other Loan
Documents, any rights or obligations hereunder or thereunder or the performance
of which rights and obligations. Except as prohibited by law, each of the
Borrower and the Guarantors hereby waives any right it may have to claim or
recover in any litigation referred to in the preceding sentence any special,
exemplary, punitive or consequential damages or any damages other than, or in
addition to, actual damages. The Borrower and the Guarantors (a) certifies that
no representative, agent or attorney of any Bank or any Bank Agent has
represented, expressly or otherwise, that such Bank or such Bank Agent would
not, in the event of litigation, seek to enforce the foregoing waivers and (b)
acknowledges that each Bank Agent and the Banks have been induced to enter into
this Credit Agreement, the other Loan Documents to which it is a party by, among
other things, the waivers and certifications contained herein.
27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this Credit Agreement
to be given by all of the Banks may be given, and any term of this Credit
Agreement, the other Loan Documents or any other instrument related hereto or
mentioned herein may be amended, and the performance or observance by the
Borrower or any of its Subsidiaries of any terms of this Credit Agreement, the
other Loan Documents or such other instrument or the continuance of any Default
or Event of Default may
<PAGE> 86
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be waived (either generally or in a particular instance and either retroactively
or prospectively) with, but only with, the written consent of the Borrower and
the written consent of the Majority Banks. Notwithstanding the foregoing, the
rate of interest on the Notes (other than interest accruing pursuant to
sec.6.11.2 following the effective date of any waiver by the Majority Banks of
thE Default or Event of Default relating thereto), the term of the Notes, any
date fixed for payment, any release of a Guarantor not expressly permitted to be
released pursuant to the terms of this Credit Agreement, the principal amount
due with respect to any Loans and/or any Reimbursement Obligations, the amount
and/or the expiration date of the Commitments of the Banks, and the amount of
commitment fee or Letter of Credit Fees hereunder may not be changed without the
written consent of the Borrower and the written consent of each Bank; the
definition of Majority Banks may not be amended without the written consent of
all of the Banks; and the amount of the Agent's Fee or any Letter of Credit Fees
payable for the Agent's account and sec.16 may not be amended without the
writteN consent of the Agent. No waiver shall extend to or affect any obligation
not expressly waived or impair any right consequent thereon. No course of
dealing or delay or omission on the part of the Agent or any Bank in exercising
any right shall operate as a waiver thereof or otherwise be prejudicial thereto.
No notice to or demand upon the Borrower shall entitle the Borrower to other or
further notice or demand in similar or other circumstances.
28. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
29. RELEASE OF GUARANTORS.
In the event of a permitted disposition of the capital stock of any
Guarantor pursuant to and in accordance with the terms of sec.10.5.2 hereof, or
if any Guarantor shall otherwise cease to exist in accordancE with the terms of
this Credit Agreement, such Guarantor shall cease being a Guarantor as of the
date such Guarantor is either sold or ceases to exist without any further action
required by the Banks or the Agent.
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IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
DYNATECH CORPORATION
By: /s/ Allan M. Kline
----------------------------------------
Name: Allan M. Kline
Title: VP, CFO and Treasurer
DYNATECH USA, INC.
ASINC, INCORPORATED
COMCOTEC, INC.
DATAVIEWS CORPORATION
DA VINCI SYSTEMS, INC.
DYNATECH COMMUNICATIONS, INC.
INDUSTRIAL COMPUTER SOURCE
ITRONIX CORPORATION
PARALLAX GRAPHICS, INC.
SYNERGISTIC SOLUTIONS, INC.
TELECOMMUNICATIONS
TECHNIQUES CORPORATION
By: /s/ Allan M. Kline
----------------------------------------
Name: Allan M. Kline
Title: VP, CFO and Treasurer
BANKBOSTON, N.A., individually and as Agent
By:
----------------------------------------
Debra E. DelVecchio, Vice President
<PAGE> 88
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
DYNATECH CORPORATION
By:
----------------------------------------
Name:
Title:
DYNATECH USA, INC.
ASINC, INCORPORATED
COMCOTEC, INC.
DATAVIEWS CORPORATION
DA VINCI SYSTEMS, INC.
DYNATECH COMMUNICATIONS, INC.
INDUSTRIAL COMPUTER SOURCE
ITRONIX CORPORATION
PARALLAX GRAPHICS, INC.
SYNERGISTIC SOLUTIONS, INC.
TELECOMMUNICATIONS
TECHNIQUES CORPORATION
By:
----------------------------------------
Name:
Title:
BANKBOSTON, N.A., individually and as Agent
By: /s/ Debra E. DelVecchio
----------------------------------------
Debra E. DelVecchio, Vice President
<PAGE> 89
Page 82
MELLON BANK, N.A., individually and
as Documentation Agent
By: /s/ Steven J. Wagner
----------------------------------------
Name: Steven J. Wagner
Title: Relationship Officer
ABN AMRO BANK N.V., BOSTON BRANCH
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
----------------------------------------
Name:
Title:
THE SANWA BANK, LIMITED
By:
----------------------------------------
Name:
Title:
USTRUST
By:
----------------------------------------
Name:
Title:
<PAGE> 90
Page 82
MELLON BANK, N.A., individually and
as Documentation Agent
By:
----------------------------------------
Name:
Title:
ABN AMRO BANK N.V., BOSTON BRANCH
By: /s/ Carol A. Levine
----------------------------------------
Name: Carol A. Levine
Title: Senior Vice President
By: /s/ James E. Davis
----------------------------------------
Name: James E. Davis
Title: Group Vice President
THE BANK OF NOVA SCOTIA
By:
----------------------------------------
Name:
Title:
THE SANWA BANK, LIMITED
By:
----------------------------------------
Name:
Title:
USTRUST
By:
----------------------------------------
Name:
Title:
<PAGE> 91
Page 82
MELLON BANK, N.A., individually and
as Documentation Agent
By:
----------------------------------------
Name:
Title:
ABN AMRO BANK N.V., BOSTON BRANCH
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By: /s/ T.M. Pitcher
----------------------------------------
Name: T.M. Pitcher
Title: Authorized Signatory
THE SANWA BANK, LIMITED
By:
----------------------------------------
Name:
Title:
USTRUST
By:
----------------------------------------
Name:
Title:
<PAGE> 92
Page 82
MELLON BANK, N.A., individually and
as Documentation Agent
By:
----------------------------------------
Name:
Title:
ABN AMRO BANK N.V., BOSTON BRANCH
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
----------------------------------------
Name:
Title:
THE SANWA BANK, LIMITED
By: /s/ Yutaka Higashino
----------------------------------------
Name: Yutaka Higashino
Title: Senior Vice President
USTRUST
By:
----------------------------------------
Name:
Title:
<PAGE> 93
Page 82
MELLON BANK, N.A., individually and
as Documentation Agent
By:
----------------------------------------
Name:
Title:
ABN AMRO BANK N.V., BOSTON BRANCH
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By:
----------------------------------------
Name:
Title:
THE SANWA BANK, LIMITED
By:
----------------------------------------
Name:
Title:
USTRUST
By: /s/ Brian C. Roche
----------------------------------------
Name: Brian C. Roche
Title: V.P.
<PAGE> 94
EXHIBIT A
FORM OF
LOAN REQUEST
DYNATECH CORPORATION
THREE NEW ENGLAND EXECUTIVE PARK
BURLINGTON, MASSACHUSETTS 01803
[Insert Date of Request]
BankBoston, N.A., as Agent
100 Federal Street
Boston, Massachusetts 02110
Attention: Debra E. DelVecchio, Vice President
Re: [LOAN] [CONVERSION] REQUEST UNDER REVOLVING CREDIT
AND TERM LOAN AGREEMENT DATED AS OF APRIL 29, 1997
--------------------------------------------------
Ladies and Gentlemen:
Reference is made to the Revolving Credit and Term Loan Agreement dated
as of April 29, 1997 (as amended and in effect from time to time, the "Credit
Agreement"), among the undersigned, the Banks named therein and BankBoston,
N.A., as agent for itself and the other Banks. Capitalized terms used herein
without definition shall have the meanings assigned to such terms in the Credit
Agreement.
[Pursuant to sec.[2.6] of the Credit Agreement, we hereby request that
a Revolving Credit Loan in the amount of $_____ be made on ______, that such
Revolving Credit Loan be [a Base Rate Loan] [a Eurodollar Rate Loan with an
Interest Period of [1][2][3][6] months. [Pursuant to sec.[4] of the Credit
Agreement, we hereby request that the Term Loan be made on the Conversion Date
and that the Term Loan be a [Base Rate Loan] [a Eurodollar Rate Loan with an
Interest Period of [1][2][3][6] months]. This Loan Request constitutes a
certification that the conditions precedent set forth in [sec.[12] and]*
sec.[13] of the Credit Agreement to the making of the Loans requested hereby
have been satisfied as of the date hereof.]
[Pursuant to sec.[2.7] of the Credit Agreement, we hereby request that
Revolving Credit Loans in an amount of $_________ which are currently
[Base][Eurodollar] Rate Loans be converted to [Base Rate Loans] [Eurodollar Rate
Loans with an Interest Period of [1][2][3][6] months on ____________ ___, ____.]
<PAGE> 95
-2-
[Pursuant to sec.4.5.2 of the Credit Agreement, we hereby request that
[a portion of] the Term Loan in an amount of $___ which is currently a
[Base][Eurodollar] Rate Loan be converted to a [Base Rate Loan] [Eurodollar Rate
Loan] on ______ __, ____.]
[Insert appropriate disbursement instructions.]**
We understand that this request is irrevocable and binding on us and
obligates us to accept the requested Loan on such date.
Very truly yours,
DYNATECH CORPORATION
By:
---------------------------------
Title:
------------------------------
* denotes language to be included only in the request for the initial Revolving
Credit Loans.
** denotes language to be included only in the initial request on the Closing
Date.
<PAGE> 96
EXHIBIT B
FORM OF REVOLVING CREDIT NOTE
$______________ as of April 29, 1997
FOR VALUE RECEIVED, the undersigned DYNATECH CORPORATION (the
"Borrower"), hereby promises to pay to the order of [INSERT NAME OF LENDER] (the
"Bank") at the Agent's Head Office (as such term is defined in the Credit
Agreement referred to below):
(a) prior to or on the Revolving Credit Loan Maturity Date the
principal amount of [INSERT AMOUNT] ($_________________) or, if less,
the aggregate unpaid principal amount of Revolving Credit Loans made by
the Bank to the Borrower pursuant to the Revolving Credit and Term Loan
Agreement dated as of April 29, 1997 (as amended and in effect from
time to time, the "Credit Agreement"), among the Borrower, the Bank and
other parties thereto;
(b) the principal outstanding hereunder from time to time at
the times provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to time
outstanding from the Closing Date under the Credit Agreement through
and including the maturity date hereof at the times and at the rate
provided in the Credit Agreement.
This Note evidences borrowings under and has been issued by the
Borrower in accordance with the terms of the Credit Agreement. The Bank and any
holder hereof is entitled to the benefits of the Credit Agreement and the other
Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrower irrevocably authorizes the Bank to make or cause to be
made, at or about the time of the Drawdown Date of any Revolving Credit Loan or
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records, maintained by the Bank with respect to any
Revolving Credit Loans shall be PRIMA
<PAGE> 97
-2-
FACIE evidence of the principal amount thereof owing and unpaid to the Bank, but
the failure to record, or any error in so recording, any such amount on any such
grid, continuation or other record shall not limit or otherwise affect the
obligations of the Borrower hereunder or under the Credit Agreement to make
payments of principal of and interest on this Note when due.
The Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Bank or such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any further occasion.
The Borrower and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATION OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY
FEDERAL COURT SITTING THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION
OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN SEC.21 OF THE CREDIT AGREEMENT. THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
This Note shall be deemed to take effect as a sealed instrument under
the laws of the Commonwealth of Massachusetts.
<PAGE> 98
-3-
IN WITNESS WHEREOF, the undersigned has caused this Note to be signed
in its corporate name and its corporate seal to be impressed thereon by its duly
authorized officer as of the day and year first above written.
[Corporate Seal] DYNATECH CORPORATION
By:
--------------------------------
Title:
<PAGE> 99
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 100
EXHIBIT C
FORM OF TERM NOTE
$______________ as of April 29, 2000
FOR VALUE RECEIVED, the undersigned DYNATECH CORPORATION (the
"Borrower"), hereby promises to pay to the order of [INSERT NAME OF LENDER] (the
"Bank") at the Agent's Head Office (as such term is defined in the Credit
Agreement referred to below):
(a) prior to or on the TermLoan Maturity Date the principal
amount of [INSERT AMOUNT] ($_________________), evidencing the Term
Loan made by the Bank to the Borrower pursuant to the Revolving Credit
and Term Loan Agreement dated as of April 29, 1997 (as amended and in
effect from time to time, the "Credit Agreement"), among the Borrower,
the Bank and other parties thereto;
(b) the principal outstanding hereunder from time to time at
the times provided in the Credit Agreement; and
(c) interest from the date hereof on the principal amount from
time to time outstanding to and including the Term Loan Maturity Date
at the rates and terms and in all cases in accordance with the terms of
the Credit Agreement.
This Note evidences borrowings under and has been issued by the
Borrower in accordance with the terms of the Credit Agreement. The Bank and any
holder hereof is entitled to the benefits of the Credit Agreement and the other
Loan Documents, and may enforce the agreements of the Borrower contained
therein, and any holder hereof may exercise the respective remedies provided for
thereby or otherwise available in respect thereof, all in accordance with the
respective terms thereof. All capitalized terms used in this Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
The Borrower irrevocably authorizes the Bank to make or cause to be
made, at the time of receipt of any payment of principal on this Note, an
appropriate notation on the grid attached to this Note, or the continuation of
such grid, or any other similar record, including computer records, reflecting
the receipt of such payment. The outstanding amount of the Term Loan set forth
on the grid attached to this Note, or the continuation of such grid, or any
other similar record, including computer records, maintained by the Bank with
respect to the Term Loan shall be PRIMA FACIE evidence of the principal amount
thereof owing and unpaid to the Bank, but the failure to record, or any error in
so recording, any such amount on any such grid, continuation or other record
shall not limit or otherwise affect the obligation of
<PAGE> 101
-2-
the Borrower hereunder or under the Credit Agreement to make payments of
principal of and interest on this Note when due.
The Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire
unpaid principal amount of this Note and all of the unpaid interest accrued
thereon may become or be declared due and payable in the manner and with the
effect provided in the Credit Agreement.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Bank or such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any further occasion.
The Borrower and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY
FEDERAL COURT SITTING THEREIN AND THE CONSENT TO THE NONEXCLUSIVE JURISDICTION
OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE
BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN SEC.21 OF THE CREDIT AGREEMENT. THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
This Note shall be deemed to take effect as a sealed instrument under
the laws of the Commonwealth of Massachusetts.
<PAGE> 102
-3-
IN WITNESS WHEREOF, the undersigned has caused this Note to be signed
in its corporate name and its corporate seal to be impressed thereon by its duly
authorized officer as of the day and year first above written.
[Corporate Seal] DYNATECH CORPORATION
By:
----------------------------------
Title
<PAGE> 103
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 104
EXHIBIT D
------- -
FORM OF
COMPLIANCE CERTIFICATE
[Date]
BankBoston, N.A., as Agent
and the Banks referred to below
100 Federal Street
Boston, Massachusetts 02110
Ladies and Gentlemen:
Reference is hereby made to that certain Revolving Credit and Term Loan
Agreement dated as of April 29, 1997, (as amended, modified, supplemented or
restated and in effect from time to time, the "Credit Agreement") among Dynatech
Corporation (the "Borrower"), BankBoston, N.A. and the other lending
institutions which are, or may in the future become, parties to the Credit
Agreement (collectively, the "Banks") and BankBoston, N.A. as agent for the
Banks (the "Agent"). Capitalized terms used herein without definition shall have
the same meanings herein as in the Credit Agreement.
This is a certificate delivered pursuant to sec.9.4(d) of the Credit
Agreement with respect to calculations of certain components of the criteria for
determining the Applicable Margin and for purposes of evidencing compliance with
the financial covenants provided for in ss.11 of the Credit Agreement. This
certificate has been duly executed by the principal financial or accounting
officer of the Borrower.
To the best of the knowledge and belief of the undersigned: (a) each of
the representations and warranties contained in the Credit Agreement and the
other Loan Documents are true in all material respects as of the date hereof,
with the same effect as if made at and as of the date hereof (except to the
extent of any changes resulting from transactions contemplated or permitted by
the Credit Agreement and the other Loan Documents and to the extent that such
representations and warranties relate expressly to an earlier date); (b)
attached hereto as APPENDIX I and set forth in reasonable detail are
computations evidencing compliance with the covenants contained in sec.11 of the
Credit Agreement as of the date and for the applicable period to which the
financial statements delivered herewith relate as well as calculations relating
to the Leverage Ratio component of the Applicable Margin criteria as of the date
and for the applicable period to which the financial statements delivered
herewith relate; (c) the information furnished in the calculations attached
hereto was true, accurate, correct, and complete as of the last day of such
period and for such applicable period, as the case may be, subject to normal
year end adjustments; (d) as of the date hereof, no Default or Event of Default
has occurred or is continuing and (e) the [quarterly] [annual] financial
statements delivered to the Banks and the Agent herewith were prepared in
accordance with
<PAGE> 105
-2-
generally accepted accounting principles (except for the absence of footnotes
required by generally accepted accounting principles) and fairly represents the
financial position of the Borrower and its Subsidiaries as of the date thereof
[(subject, in the case of the quarterly financial statements, to year-end
adjustments)].
In addition, together with this certificate, the Borrower is delivering
to the Agent the financial statements [describe date and period of applicable
financial statements] required pursuant to ss.9.4[a][b] of the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this certificate as an
instrument under seal as of the date first written above.
DYNATECH CORPORATION
By:
---------------------------------------
Title:
<PAGE> 106
COMPLIANCE CERTIFICATE WORKSHEET
---------- ----------- ---------
DYNATECH CORPORATION
As of ______________
Section Calculation
- ------- -----------
11.1 LEVERAGE RATIO.
A. TOTAL FUNDED INDEBTEDNESS (SUM OF (1) -(3): $___________
(1) Indebtedness for borrowed money, PLUS $___________
(2) purchase money Indebtedness, PLUS $___________
(3) Indebtedness with respect to Capitalized Leases: $___________
B. EBITDA (for period of four consecutive fiscal quarters): $___________
(1) Consolidated Net Income, PLUS $___________
(2) depreciation and amortization, PLUS $___________
(3) noncash charges, PLUS $___________
(4) income tax expense, PLUS $___________
(5) Consolidated Total Interest Expense $___________
C. RATIO OF A TO B: _____:_____
(Not to be greater than 2.50:1.00 at the end of any fiscal quarter)
11.2 PROFITABLE OPERATIONS
Consolidated Net Income for such fiscal quarter $___________
(exclusive of all noncash writedowns taken during
or with respect to such period in connection with a
Permitted Acquisition in an amount not to exceed
$50,000,000 during the term of the Credit Agreement)
(Not to be less than $1.00 for any fiscal quarter)
11.3 DEBT SERVICE.
A. EBIT (for period of four consecutive fiscal quarters): $___________
(1) EBITDA, LESS $___________
(2) depreciation and amortization $___________
B. CONSOLIDATED TOTAL INTEREST EXPENSE (for period
<PAGE> 107
-2-
of four consecutive fiscal quarters): $____________
C.RATIO OF A TO B: _____:_____
(Not to be less than 3.50:1.00 at the end of any fiscal quarter)
11.4 CURRENT RATIO.
A. CONSOLIDATED CURRENT ASSETS: $____________
B. CONSOLIDATED CURRENT LIABILITIES: $____________
C. RATIO OF A TO B: _____:_____
(Not to be less than 2.00:1.00 at the end of any fiscal quarter)
11.5 CONSOLIDATED NET WORTH.
CONSOLIDATED NET WORTH FOR PERIOD: $____________
(calculated by adding back (a) any noncash
writedowns taken during or with respect to such
period in connection with a Permitted Acquisition
in an amount not to exceed $50,000,000 during the
term of the Credit Agreement and (b) up to
$35,000,000 from the purchase of the Borrower's
public securities)
(1) Consolidated Total Assets, OVER $___________
(2) Consolidated Total Liabilities, LESS $___________
(3) stock/equity subscriptions receivables $___________
NOT TO BE LESS THAN ITEM (4) BELOW:
(1) $150,000,000, PLUS $___________
(2) 50% of positive Consolidated Net Income, PLUS $___________
(3) 100% of net proceeds of any equity issuance $___________
(4) Sum of (1) plus (2) plus (3) $____________
<PAGE> 108
EXHIBIT E
ASSIGNMENT AND ACCEPTANCE
---------- --- ----------
Dated as of _____________
Reference is made to the Revolving Credit and Term Loan Agreement,
dated as of April 29, 1997 (as from time to time amended and in effect, the
"Credit Agreement"), by and among DYNATECH CORPORATION, a Massachusetts
corporation (the "Borrower"), the banking institutions referred to therein as
Banks (collectively, the "Banks"), and BANKBOSTON, N.A., a national banking
association, as agent (in such capacity, the "Agent") for the Banks. Capitalized
terms used herein and not otherwise defined shall have the meanings assigned to
such terms in the Credit Agreement.
_____________________ (the "Assignor") and _____________________
(the "Assignee") hereby agree as follows:
1. ASSIGNMENT. Subject to the terms and conditions of this Assignment
and Acceptance, the Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes without recourse to the Assignor, a
$_______________ interest in and to the rights, benefits, indemnities and
obligations of the Assignor under the Credit Agreement equal to ___% in respect
of the Total Commitment and the Term Loan immediately prior to the Effective
Date (as hereinafter defined).
2. ASSIGNMENT. The Assignor (a) represents and warrants that (i) it is
legally authorized to enter into this Assignment and Acceptance, (ii) as of the
date hereof, its Commitment is $___________, its Commitment Percentage is ___%,
the aggregate outstanding principal balance of its Advances equals
$______________, the aggregate amount of its Letter of Credit Participations
equals $______________ and the aggregate outstanding balance of its Term Loan
equals $______________ (in each case after giving effect to the assignment
contemplated hereby but without giving effect to any contemplated assignments
which have not yet become effective), and (iii) immediately after giving effect
to all assignments which have not yet become effective, the Assignor's
Commitment Percentage will be sufficient to give effect to this Assignment and
Acceptance, (b) makes no representation or warranty, express or implied, and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit Agreement or any of the
other Loan Documents or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant thereto or the
attachment, perfection or priority of any security interest or mortgage, other
than that it is the legal and beneficial owner of the interest being assigned by
it hereunder free and clear of any claim or encumbrance; (c) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any of its Subsidiaries or any other
<PAGE> 109
-2-
Person primarily or secondarily liable in respect of any of the Obligations, or
the performance or observance by the Borrower or any of its Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of its obligations under the Credit Agreement or any of the
other Loan Documents or any other instrument or document delivered or executed
pursuant thereto; and (d) attaches hereto the Note delivered to it under the
Credit Agreement.
The Assignor requests that the Borrower exchange the Assignor's Note
for new Notes payable to the Assignor and the Assignee as follows:
<TABLE>
<CAPTION>
Notes Payable to
the Order of: Amount of Note
---------------- --------------
<S> <C>
Assignor $
Assignee $
</TABLE>
3. ASSIGNEE'S REPRESENTATIONS. The Assignee (a) represents and warrants
that (i) it is duly and legally authorized to enter into this Assignment and
Acceptance, (ii) the execution, delivery and performance of this Assignment and
Acceptance do not conflict with any provision of law or of the charter or
by-laws of the Assignee, or of any agreement binding on the Assignee, (iii) all
acts, conditions and things required to be done and performed and to have
occurred prior to the execution, delivery and performance of this Assignment and
Acceptance, and to render the same the legal, valid and binding obligation of
the Assignee, enforceable against it in accordance with its terms, have been
done and performed and have occurred in due and strict compliance with all
applicable laws; (b) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant thereto and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
this Assignment and Acceptance; (c) agrees that it will, independently and
without reliance upon the Assignor, the Agent or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the Credit Agreement; (d) represents and warrants that it is an Eligible
Assignee; (e) appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement and the other
Loan Documents as are delegated to the Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (f) agrees that it will
perform in accordance with their terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Bank; and (g)
acknowledges that it has made arrangements with the Assignor satisfactory to the
Assignee with respect to its pro rata share of Letter of Credit Fees in respect
of outstanding Letters of Credit.
4. EFFECTIVE DATE. The effective date for this Assignment and
Acceptance shall be ____________ (the "Effective Date"). Following the execution
of this Assignment and Acceptance and the consent of the Company hereto having
been
<PAGE> 110
-3-
obtained, each party hereto shall deliver its duly executed counterpart hereof
to the Agent for acceptance by the Agent and recording in the Register by the
Agent.
5. RIGHTS UNDER CREDIT AGREEMENT. Upon such acceptance and recording,
from and after the Effective Date, (a) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Bank thereunder, and (b) the Assignor
shall, with respect to that portion of its interest under the Credit Agreement
assigned hereunder, relinquish its rights and be released from its obligations
under the Credit Agreement; PROVIDED, HOWEVER, that the Assignor shall retain
its rights to be indemnified pursuant to sec.* of the Credit Agreement with
respect to any claims or actions arising prior to the Effective Date.
6. PAYMENTS. Upon such acceptance of this Assignment and Acceptance by
the Agent and such recording, from and after the Effective Date, the Agent shall
make all payments in respect of the rights and interests assigned hereby
(including payments of principal, interest, fees and other amounts) to the
Assignee. The Assignor and the Assignee shall make any appropriate adjustments
in payments for periods prior to the Effective Date by the Agent or with respect
to the making of this assignment directly between themselves.
7. GOVERNING LAW. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO TAKE
EFFECT AS A SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO
CONFLICT OF LAWS).
8. COUNTERPARTS. This Assignment and Acceptance may be executed in any
number of counterparts which shall together constitute but one and the same
agreement.
<PAGE> 111
-4-
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Assignment and Acceptance to be executed on its
behalf by its officer thereunto duly authorized, as of the date first above
written.
[INSERT NAME OF ASSIGNOR]
By:
-----------------------------------------
Title:
[INSERT NAME OF ASSIGNEE]
By:
-----------------------------------------
Title:
CONSENTED TO:
- ------------
DYNATECH CORPORATION
By:
------------------------------
Title:
BANKBOSTON, N.A., as
Agent
By:
------------------------------
Title:
<PAGE> 1
Exhibit 10.7
DYNATECH CORPORATION
SUPPLEMENTAL 401(K) SAVINGS PLAN
WHEREAS, Dynatech Corporation (the "Company") heretofore adopted the Dynatech
Corporation Supplemental 401(k) Savings Plan (the "Plan"); and
WHEREAS, the Company reserved the right to amend the Plan; and
WHEREAS, the Company desires to amend the Plan;
NOW, THEREFORE, the Plan is amended, effective as of April 1, 1997, to read in
its entirety as follows:
SECTION 1. PURPOSE OF PLAN
The purpose of the Dynatech Corporation Supplemental 401(k) Savings Plan (the
"Plan") is to permit certain executives of Dynatech Corporation (the "Company")
to elect to defer receipt of a portion of their annual compensation in
supplement to their pre-tax contributions made to the Dynatech Corporation
401(k) Savings Plan (the "401(k) Plan").
The Plan is intended to qualify as an unfunded, deferred compensation plan for a
select group of management or highly compensated employees under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA").
The obligation of the Company to make payments under the Plan constitutes solely
an unsecured (but legally enforceable) promise of the Company to make such
payments, and no person, including any employee, shall have any lien, prior
claim or other security interest in any property of the Company as a result of
this Plan. Rather, any employee participating in the Plan shall have the status
of a general unsecured creditor of the Company. It is the intention of the
parties hereunder that the Plan be unfunded for tax purposes and for purposes of
Title I of ERISA. The Company shall be the sole owner and beneficiary of any
account provided for hereinbelow and any property used to measure such account
shall remain the sole and exclusive property of the Company.
SECTION 2. ELIGIBLE EMPLOYEES
All employees currently eligible to participate in the Plan shall continue to be
eligible, subject to the following provisions of the Plan. The Company's 401(k)
Advisory Committee shall designate the employees of the Company eligible to
participate in the Plan for any subsequent year.
<PAGE> 2
SECTION 3. ACCOUNTS
The Company shall establish and maintain on its books with respect to each
Participant a separate account which shall record (a) amounts of income deferred
by the Participant under the Plan pursuant to the Participant's election, (b)
any Company matching contributions made on his or her behalf pursuant to Section
7, and (c) the allocation of investment experience.
SECTION 4. ELECTION TO DEFER COMPENSATION
Any participant enumerated under Schedule A may elect to defer a specified
percentage of his or her "Compensation" (as hereinafter defined) for a calendar
year. Any election so made shall be binding for the next following calendar
year, and must be renewed or revised on or before November 30 for the next
succeeding calendar year.
The amount of Compensation to be deferred by any such Participant under the Plan
shall be equal to the difference between (a) the percentage of the Participant's
Compensation elected hereunder (not to exceed fifteen (15) percent) and (b) the
lesser of the amount of Compensation allowed as an employee deferral under the
401(k) Plan as a result of Internal Revenue Code (the "Code") imposed
limitations for the year, or as a result of limitations imposed under the 401(k)
Plan for such year.
Notwithstanding the foregoing provisions of this Section 4, any Participant
enumerated under Schedule B may elect to defer receipt of all or any portion of
any bonus paid by the Company on his behalf for any calendar year. Any election
so made shall be binding for the next following calendar year, and must be
renewed or revised on or before November 30 for the next succeeding calendar
year.
SECTION 5. COMPENSATION
Compensation shall mean the compensation paid to a Participant by the Company
for the calendar year, as reflected in the Participant's Form W-2, but exclusive
of any noncash compensation, stock options and any compensation received prior
to becoming a Participant in the Plan. Compensation shall include any amounts
deferred under a salary reduction agreement pursuant to the 401(k) Plan or under
a "cafeteria plan" (within the meaning of Section 125 of the Code) maintained by
the Company.
SECTION 6. MANNER OF ELECTION
Any election made by a Participant pursuant to this Plan shall be made in
writing by executing such form(s) as the Company shall from time to time
prescribe.
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<PAGE> 3
SECTION 7. COMPANY MATCHING CONTRIBUTIONS
For the 1997 calendar year, the Company shall allocate to the account of each
Participant who is employed by the Company as of March 31, 1997 an amount equal
to the difference between (i) fifty percent (50%) of the first six percent (6%)
of the Participant's Compensation deferred under both this Plan and the 401(k)
Plan from January 1, 1997 to March 31, 1997 and (ii) the Company matching
contribution made on his behalf under the 401(k) Plan for such period. In
addition, the Company shall allocate to the account of each Participant who is
employed by the Company as of the last day of such calendar year (December 31,
1997) an amount equal to the difference between (i) one hundred percent (100%)
of the first five percent (5%) of the Participant's Compensation deferred under
both this Plan and the 401(k) Plan from April 1, 1997 to December 31, 1997 and
(ii) the Company matching contribution made on his behalf under the 401(k) Plan
for such period.
As of the last day of any subsequent calendar year, the Company shall allocate
to the account of each Participant who is employed by the Company as of that
date an amount equal to the difference between (a) one hundred percent (100%) of
the first five percent (5%) of the Participant's Compensation deferred under
both this Plan and the 401(k) Plan for the applicable year and (b) the Company
matching contribution made on his behalf under the 401(k) Plan for such year.
SECTION 8. INVESTMENT OF ACCOUNTS
Each Participant's account shall be invested in the mutual fund or funds from
time to time designated by the Company. Such funds shall be identified on
Schedule C attached hereto. The investment of a Participant's account hereunder
shall, to the extent practicable, coincide with the investment of the
Participant's account under the 401(k) Plan.
The fair market value of each Participant's account under the Plan shall be
established as of the close of each business day, using the closing share price
of the mutual fund or funds in which the Participant's account is so invested.
SECTION 9. PAYMENT OF A PARTICIPANT'S ACCOUNT
If a Participant terminates employment with the Company for any reason on or
after attaining age sixty-five (65), or prior to that date as a result of the
Participant's "permanent and total disability" or the Participants death, such
Participant (or, in the event of the Participant's death, his or her beneficiary
(as determined pursuant to Section 10)), shall have a nonforfeitable (vested)
right to the fair market value of the Participant's account. For this purpose,
"permanent and total disability" shall mean suffering from
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<PAGE> 4
a physical or mental condition that, in the opinion of the Company's 401(k)
Advisory Committee and based upon appropriate medical advice and examination,
can be expected to result in death or can be expected to last for a continuous
period of no less than twelve (12) months. The condition must have existed for a
period of at least three (3) months and, in accordance with uniform and
consistent rules, must be determined by the Company's 401(k) Advisory Committee
to prevent a Participant from engaging in substantial gainful activity. Receipt
of a Social Security disability award shall be deemed proof of disability.
If a Participant terminates employment for any other reason, such Participant
shall be entitled to receive the vested value of his account. For this purpose,
each Participant shall at all times have a nonforfeitable (vested) right to his
account derived from any Compensation deferred pursuant to Section 4. However,
with respect to any Company matching contributions made on the Participant's
behalf pursuant to Section 7, the Participant shall have a nonforfeitable
(vested) right to a percentage of the fair market value of such portion of his
or her account as follows:
<TABLE>
<CAPTION>
YEARS OF SERVICE VESTED PERCENTAGE
---------------------------------------------------------
<S> <C>
Less than 1 year 0%
1 year and thereafter 100%
</TABLE>
For this purpose, effective January 1, 1997, an Employee shall be credited with
a Year of Service for vesting purposes for each twelve (12)-month period
commencing on his employment date (or reemployment date) and the twelve
(12)-month consecutive anniversaries of that date and ending on the date a Break
in Service begins. An Employee shall also receive credit for any break in
service of less than twelve (12)-consecutive months. Fractional period of a year
shall be expressed in terms of days, with three hundred and sixty-five (365)
days being equal to one (1) year.
Notwithstanding the foregoing paragraph, with respect to any Employee who was a
Participant in the Plan prior to January 1, 1997, the following shall apply in
determining such Employee's Year(s) of Service for vesting purposes: (i) such
Employee's employment date for purposes of the preceding paragraph shall be
deemed to be January 1, 1997, (b) any such Employee shall be credited with a
year of service for each Plan Year commencing prior to January 1, 1997 during
which he completed at least one-thousand (1,000) Hours of Service with the
Employer, and (c) any such Employee who terminates employment with the Employer
in the 1997 Plan Year and who has completed at least one-thousand (1,000) hours
of service shall be credited with a year of service for vesting purposes.
The fair market value of a Participant's account (or the vested portion thereof,
as the case may be) shall be distributed to the Participant (or to the
Participant's beneficiary in
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<PAGE> 5
the event of the Participant's death) in a lump sum within thirty (30) days
following the earliest of (1) Participant's termination of employment with the
Company and any "affiliate" thereof (within the meaning of Sections 414(b), (c)
and (m) of the Code), (2) the Participant's death or (3), if applicable, the
date specified in the Participant's distribution election form.
The nonvested portion of a Participant's account, as determined above, shall be
forfeited as of the Participant's termination of employment. The amount
forfeited shall be used to reduce future Company matching contributions under
the Plan for the remaining eligible Participants.
SECTION 10. BENEFICIARY DESIGNATION
A Participant may designate the person or persons to whom the Participant's
account under the Plan shall be paid in the event of the Participant's death. In
the absence of any such designation, any amounts payable shall be paid to the
estate of the Participant.
SECTION 11. DISTRIBUTION IN THE EVENT OF UNFORESEEABLE EMERGENCY
In the event of an "unforeseeable emergency", a Participant may, by filing a
written election with the Company's 401(k) Advisory Committee, elect to receive
a distribution from the Plan in an amount not to exceed the lesser of (i) the
fair market value of the Participant's vested account determined as of the
valuation immediately preceding the filing of such written election or (ii) the
amount necessary to satisfy the unforeseeable emergency. For purposes hereof, an
"unforeseeable emergency" shall mean a severe financial hardship to the
Participant resulting from a sudden and unexpected illness or accident of the
Participant or of a dependent (as defined in Section 152(a) of the Code) of the
Participant, loss of the Participant's property due to casualty, or other
similar extraordinary and unforeseeable circumstances arising as a result of
events beyond the control of the Participant. The circumstances that will
constitute an unforeseeable emergency shall depend upon the facts of each case,
but, in any case, payment may not be made to the extent that such emergency is
or may be relieved:
(i) through reimbursement or compensation by insurance or
otherwise;
(ii) by liquidation of the Participant's assets, to the extent the
liquidation of such assets would not itself cause severe
financial hardship; or
(iii) by cessation of deferrals under the Plan.
-5-
<PAGE> 6
SECTION 12. AMENDMENT
The Company, by resolution of its Board of Directors, shall have the right to
amend, suspend or terminate the Plan at any time.
SECTION 13. NO LIABILITY
No member of the Board of Directors of the Company and no officer or employee of
the Company shall be liable to any person for any action taken or omitted in
connection with the administration of the Plan unless attributable to his own
fraud or willful misconduct; nor shall the Company be liable to any person for
any such action unless attributable to fraud or willful misconduct on the part
of a director, officer or employee of the Company.
SECTION 14. NO ASSIGNMENT
A Participant's right to the amount credited to his account under the Plan shall
not be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment or garnishment by creditors of the
Participant or the Participant's beneficiary.
SECTION 15. SUCCESSORS AND ASSIGNS
The provisions of this Plan shall be binding upon and inure to the benefit of
the Company, its successors and assigns, and the Participant his/her
beneficiaries, heirs, legal representatives and assigns.
SECTION 16. NO CONTRACT OF EMPLOYMENT
Nothing contained herein shall be construed as a contract of employment between
a Participant and the Company, or as a right of the Participant to continue in
employment with the Company, or as a limitation of the right of the Company to
discharge the Participant at any time, with or without cause.
SECTION 17. GOVERNING LAW
This Plan shall be subject to and construed in accordance with the provisions of
ERISA, where applicable, and otherwise by the laws of the Commonwealth of
Massachusetts.
-6-
<PAGE> 7
IN WITNESS WHEREOF, the Company, by its duly authorized officer, has caused this
Plan to be executed as of the 1st day of April, 1997.
DYNATECH CORPORATION
By
-------------------------------
Authorized Officer
-7-
<PAGE> 8
AMENDMENT TO THE
DYNATECH CORPORATION
SUPPLEMENTAL 401(K) SAVINGS PLAN
WHEREAS, Dynatech Corporation (the "Employer") heretofore adopted the Dynatech
Corporation Supplemental 401(k) Savings Plan (the "Plan"); and
WHEREAS, the Employer reserved the right to amend the Plan; and
WHEREAS, the Employer desires to amend the Plan;
NOW, THEREFORE, the Plan is hereby amended, effective as of January 1, 1996, as
follows:
1. Section 9 of the Plan shall be amended by adding the following
paragraph to the conclusion of said Section:
The nonvested portion of a Participant's account, as determined above,
shall be forfeited as of the Participant's termination of employment.
The amount forfeited shall be used to reduce future Company matching
contributions under the Plan for the remaining eligible Participants.
2. Except as hereinabove amended, the provisions of the Plan shall
continue in full force and effect.
IN WITNESS WHEREOF, the Employer, by its duly authorized officer, has caused
this Amendment to be executed on the _____ day of _________ 1996.
DYNATECH CORPORATION
By:
-------------------------------
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<PAGE> 1
Exhibit 10.8
DYNATECH CORPORATION
1996 EMPLOYEE STOCK PURCHASE PLAN
April 19, 1996
The purpose of this Plan is to provide eligible employees of DYNATECH
CORPORATION (the "Company") and certain of its subsidiaries with opportunities
to purchase shares of the Company's common stock, $.20 par value (the "Common
Stock"), commencing on October 1, 1996. Six Hundred Thousand (600,000) shares of
Common Stock in the aggregate have been approved for this purpose.
1. ADMINISTRATION. The Plan will be administered by the Company's Board
of Directors (the "Board") or by a Committee appointed by the Board (the
"Committee"). The Board or the Committee has authority to make rules and
regulations for the administration of the Plan and its interpretation and
decisions with regard thereto shall be final and conclusive.
2. ELIGIBILITY. Participation in the Plan will neither be permitted nor
denied contrary to the requirements of Section 423 of the Internal Revenue Code
of 1986, as amended (the "Code"), and regulations promulgated thereunder. All
employees of the Company, including Directors who are employees, and all
employees of any subsidiary of the Company (as defined in Section 424(f) of the
Code) designated by the Board or the Committee from time to time (a "Designated
Subsidiary"), are eligible to participate in any one or more of the offerings of
Options (as defined in Section 9) to purchase Common Stock under the Plan
provided that they are employees of the Company or a Designated Subsidiary on
the first day of the applicable Plan Period (as defined below).
No employee may be granted an option hereunder if such employee,
immediately after the option is granted, owns 5% or more of the total combined
voting power or value of the stock of the Company or any subsidiary. For
purposes of the preceding sentence, the attribution rules of Section 424(d) of
the Code shall apply in determining the stock ownership of an employee, and all
stock which the employee has a contractual right to purchase shall be treated as
stock owned by the employee.
3. OFFERINGS. The Company will make one or more offerings ("Offerings")
to employees to purchase stock under this Plan. Offerings will begin each
October 1 and April 1, or the first business day thereafter (the "Offering
Commencement Dates"); the first Offering shall begin on October 1, 1996. Each
Offering Commencement Date will begin a six (6) month period (a "Plan
<PAGE> 2
Period") during which payroll deductions will be made and held for the purchase
of Common Stock at the end of the Plan Period. The Board or the Committee may,
at its discretion, choose a different Plan Period of twelve (12) months or less
for subsequent Offerings.
4. PARTICIPATION. An employee eligible on the Offering Commencement
Date of any Offering may participate in such Offering by completing and
forwarding a payroll deduction authorization form to the employee's appropriate
payroll office at least 30 days (or such other period as may be established by
the Board or the Committee) prior to the applicable Offering Commencement Date.
The form will authorize a regular payroll deduction from the Compensation
received by the employee during the Plan Period. Unless an employee files a new
form or withdraws from the Plan, his deductions and purchases will continue at
the same rate for future Offerings under the Plan as long as the Plan remains in
effect. The term "Compensation" means the amount of money reportable on the
employee's Federal Income Tax Withholding Statement, excluding overtime, shift
premium, incentive or bonus awards, allowances and reimbursements for expenses
such as relocation allowances for travel expenses, income or gains on the
exercise of Company stock options or stock appreciation rights, and similar
items, whether or not shown on the employee's Federal Income Tax Withholding
Statement, but including, in the case of salespersons, sales commissions to the
extent determined by the Board or the Committee.
5. DEDUCTIONS. The Company will maintain payroll deduction accounts for
all participating employees. With respect to any Offering made under this Plan,
an employee may authorize a payroll deduction of a percentage of the
Compensation he or she receives during the Plan Period or such shorter period
during which deductions from payroll are made, which percentage shall be a whole
number from one through ten.
No employee may be granted an Option (as defined in Section 9) which
permits his rights to purchase Common Stock under this Plan and any other stock
purchase plan of the Company and its subsidiaries, to accrue at a rate which
exceeds $25,000 of the fair market value of such Common Stock (determined at the
Offering Commencement Date of the Plan Period) for each calendar year in which
the Option is outstanding at any time.
6. DEDUCTION CHANGES. An employee may decrease or discontinue his
payroll deduction once during any Plan Period, by filing a new payroll deduction
authorization form. However, an employee may not increase his payroll deduction
during a Plan Period. If an employee elects to discontinue his payroll
deductions during a Plan Period, but does not elect to withdraw his funds
pursuant to Section 8 hereof, funds deducted prior to
-2-
<PAGE> 3
his election to discontinue will be applied to the purchase of Common Stock on
the Exercise Date (as defined below).
7. INTEREST. Interest will not be paid on any employee accounts, except
to the extent that the Board or the Committee, in its sole discretion, elects to
credit employee accounts with interest at such per annum rate as it may from
time to time determine.
8. WITHDRAWAL OF FUNDS. An employee may at any time prior to the close
of business on the last business day in a Plan Period and for any reason
permanently draw out the balance accumulated in the employee's account and
thereby withdraw from participation in an Offering. Partial withdrawals are not
permitted. The employee may not begin participation again during the remainder
of the Plan Period. The employee may participate in any subsequent Offering in
accordance with terms and conditions established by the Board or the Committee,
except that employees who are also directors or officers of the Company within
the meaning of Section 16 of the Securities Exchange Act of 1934, as amended
(the "Exchange Act") and the rules promulgated there under may not participate
again for a period of at least six (6) months as provided in Rule 16b-3(d)(2)(i)
or any successor provision.
9. PURCHASE OF SHARES. On the Offering Commencement Date of each Plan
Period, the Company will grant to each eligible employee who is then a
participant in the Plan an option ("Option") to purchase on the last business
day of such Plan Period (the "Exercise Date"), at the Option Price hereinafter
provided for, such number of whole shares of Common Stock of the Company
reserved for the purposes of the Plan determined by dividing 10% of such
employee's Compensation for the immediately prior six-month period by the price
determined in accordance with the formula set forth in the following paragraph
but using the closing price on the Offering Commencement Date of such Plan
Period and rounding the result of such calculation down to the nearest whole
share.
The purchase price for each share purchased will be 85% of the closing
price of the Common Stock on (i) the first business day of such Plan Period or
(ii) the Exercise Date, whichever closing price shall be less. Such closing
price shall be (a) the closing price on any national securities exchange on
which the Common Stock is listed, (b) the closing price of the Common Stock on
the Nasdaq National Market or (c) the average of the closing bid and asked
prices in the over-the-counter-market, whichever is applicable, as published in
THE WALL STREET JOURNAL. If no sales of Common Stock were made on such a day,
the price of the Common Stock for purposes of clauses (a) and (b) above shall be
the
-3-
<PAGE> 4
reported price for the next preceding day on which sales were made.
Each employee who continues to be a participant in the Plan on the
Exercise Date shall be deemed to have exercised his Option at the Option Price
on such date and shall be deemed to have purchased from the Company the number
of full shares of Common Stock reserved for the purpose of the Plan that his
accumulated payroll deductions on such date will pay for pursuant to the formula
set forth above (but not in excess of the maximum number determined in the
manner set forth above).
Any balance remaining in an employee's payroll deduction account at the
end of a Plan Period will be automatically refunded to the employee, except that
any balance which is less than the purchase price of one share of Common Stock
will be carried forward into the employee's payroll deduction account for the
following Offering, unless the employee elects not to participate in the
following Offering under the Plan, in which case the balance in the employee's
account shall be refunded.
10. ISSUANCE OF CERTIFICATES. Certificates representing shares of
Common Stock purchased under the Plan may be issued only in the name of the
employee, in the name of the employee and another person of legal age as joint
tenants with rights of survivorship, or (in the Company's sole discretion) in
the street name of a brokerage firm, bank or other nominee holder designated by
the employee.
11. RIGHTS ON RETIREMENT, DEATH OR TERMINATION OF EMPLOYMENT. In the
event of a participating employee's termination of employment prior to the last
business day of a Plan Period, no payroll deduction shall be taken from any pay
due and owing to an employee and the balance in the employee's account shall be
paid to the employee or, in the event of the employee's death, (a) to a
beneficiary previously designated in a revocable notice signed by the employee
(with any spousal consent required under state law) or (b) in the absence of
such a designated beneficiary, to the executor or administrator of the
employee's estate or (c) if no such executor or administrator has been appointed
to the knowledge of the Company, to such other person(s) as the Company may, in
its discretion, designate. If, prior to the last business day of the Plan
Period, the Designated Subsidiary by which an employee is employed shall cease
to be a subsidiary of the Company, or if the employee is transferred to a
subsidiary of the Company that is not a Designated Subsidiary, the employee
shall be deemed to have terminated employment for the purposes of this Plan.
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<PAGE> 5
12. OPTIONEES NOT STOCKHOLDERS. Neither the granting of an Option to an
employee nor the deductions from his pay shall constitute such employee a
stockholder of the shares of Common Stock covered by an Option under this Plan
until such shares have been purchased by and issued to him.
13. RIGHTS NOT TRANSFERABLE. Rights under this Plan are not
transferable by a participating employee other than by will or the laws of
descent and distribution, and are exercisable during the employee's lifetime
only by the employee.
14. APPLICATION OF FUNDS. All funds received or held by the Company
under this Plan may be combined with other corporate funds and may be used for
any corporate purpose.
15. ADJUSTMENT IN CASE OF CHANGES AFFECTING COMMON STOCK. In the event
of a subdivision of outstanding shares of Common Stock, or the payment of a
dividend in Common Stock, the number of shares approved for this Plan, and the
share limitation set forth in Section 9, shall be increased proportionately, and
such other adjustment shall be made as may be deemed equitable by the Board or
the Committee. In the event of any other change affecting the Common Stock, such
adjustment shall be made as may be deemed equitable by the Board or the
Committee to give proper effect to such event.
16. MERGER. If the Company shall at any time merge or consolidate with
another corporation and the holders of the capital stock of the Company
immediately prior to such merger or consolidation continue to hold at least 80%
by voting power of the capital stock of the surviving corporation ("Continuity
of Control"), the holder of each Option then outstanding will thereafter be
entitled to receive at the next Exercise Date upon the exercise of such Option
for each share as to which such Option shall be exercised the securities or
property which a holder of one share of the Common Stock was entitled to upon
and at the time of such merger, and the Committee shall take such steps in
connection with such merger as the Committee shall deem necessary to assure that
the provisions of Paragraph 15 shall thereafter be applicable, as nearly as
reasonably may be, in relation to the said securities or property as to which
such holder of such Option might thereafter be entitled to receive thereunder.
In the event of a merger or consolidation of the Company with or into
another corporation which does not involve Continuity of Control, or of a sale
of all or substantially all of the assets of the Company while unexercised
Options remain outstanding under the Plan, (a) subject to the provisions of
clauses (b) and (c), after the effective date of such transaction, each holder
of an outstanding Option shall be entitled, upon exercise of such
-5-
<PAGE> 6
Option, to receive in lieu of shares of Common Stock, shares of such stock or
other securities as the holders of shares of Common Stock received pursuant to
the terms of such transaction; or (b) all outstanding Options may be cancelled
by the Board or the Committee as of a date prior to the effective date of any
such transaction and all payroll deductions shall be paid out to the
participating employees; or (c) all outstanding Options may be cancelled by the
Board or the Committee as of the effective date of any such transaction,
provided that notice of such cancellation shall be given to each holder of an
Option, and each holder of an Option shall have the right to exercise such
Option in full based on payroll deductions then credited to his account as of a
date determined by the Board or the Committee, which date shall not be less than
ten (10) days preceding the effective date of such transaction.
17. AMENDMENT OF THE PLAN. The Board may at any time, and from time to
time, amend this Plan in any respect, except that (a) if the approval of any
such amendment by the shareholders of the Company is required by Section 423 of
the Code or by Rule 16b-3 under the Exchange Act, such amendment shall not be
effected without such approval, and (b) in no event may any amendment be made
which would cause the Plan to fail to comply with Section 16 of the Exchange Act
and the rules promulgated thereunder, as in effect from time to time, or Section
423 of the Code.
18. INSUFFICIENT SHARES. In the event that the total number of shares
of Common Stock specified in elections to be purchased under any Offering plus
the number of shares purchased under previous Offerings under this Plan exceeds
the maximum number of shares issuable under this Plan, the Board or the
Committee will allot the shares then available on a pro rata basis.
19. TERMINATION OF THE PLAN. This Plan may be terminated at any time by
the Board. Upon termination of this Plan all amounts in the accounts of
participating employees shall be promptly refunded.
20. GOVERNMENTAL REGULATIONS. The Company's obligation to sell and
deliver Common Stock under this Plan is subject to listing on a national stock
exchange or quotation on the Nasdaq National Market and the approval of all
governmental authorities required in connection with the authorization, issuance
or sale of such stock.
The Plan shall be governed by Massachusetts law except to the extent
that such law is preempted by federal law.
The Plan is intended to comply with the provisions of Rule 16b-3
promulgated under the Securities Exchange Act of 1934,
-6-
<PAGE> 7
as amended. Any provision inconsistent with such Rule shall to that extent be
inoperative and shall not affect the validity of the Plan.
21. ISSUANCE OF SHARES. Shares may be issued upon exercise of an Option
from authorized but unissued Common Stock, from shares held in the treasury of
the Company, or from any other proper source.
22. NOTIFICATION UPON SALE OF SHARES. Each employee agrees, by entering
the Plan, to promptly give the Company notice of any disposition of shares
purchased under the Plan where such disposition occurs within two years after
the date of grant of the Option pursuant to which such shares were purchased.
23. EFFECTIVE DATE AND APPROVAL OF SHAREHOLDERS. The Plan shall take
effect on April 19, 1996 subject to approval by the shareholders of the Company
as required by Rule 16b-3 under the Exchange Act and by Section 423 of the Code,
which approval must occur within twelve months of the adoption of the Plan by
the Board.
Adopted by the Board of Directors
on April 19, 1996 and by the Shareholders
on July 30, 1996
-7-
<PAGE> 1
DYNATECH CORPORATION EXHIBIT 11
<TABLE>
COMPUTATION OF PER SHARE EARNINGS
---------------------------------
<CAPTION>
Historical
Weighted
Average
Shares
----------
<S> <C>
For the year ended March 31, 1995:
Weighted average common stock outstanding,
net of treasury stock 17,846,000
==========
For the year ended March 31, 1996:
Common stock outstanding, net of treasury stock,
beginning of year 17,572,000
Weighted average treasury stock issued during the year 461,000
Weighted average common stock equivalents 351,000
Weighted average treasury stock repurchased (69,000)
----------
Weighted average common stock outstanding,
net of treasury stock 18,315,000
==========
For the year ended March 31, 1997:
Common stock outstanding, net of treasury stock,
beginning of year 17,584,000
Weighted average treasury stock issued during the year 144,000
Weighted average common stock equivalents 838,000
Weighted average treasury stock repurchased (538,000)
----------
Weighted average common stock outstanding,
net of treasury stock 18,028,000
==========
</TABLE>
<PAGE> 1
EXHIBIT 21
Subsidiaries of the Registrant.
<TABLE>
<CAPTION>
Name of Parent or Subsidiary Organization* State or Other Jurisdiction
- ------------------------------------------ ---------------------------
<S> <C>
Dynatech Corporation - Parent Massachusetts
Dynatech U.S.A., Inc. Nevada
AIRSHOW, Incorporated California
ComCoTec, Inc. Illinois
DataViews Corporation Massachusetts
DaVinci Systems, Inc. Florida
Dynatech Leasing Corporation Nevada
Dynatech Precision Sampling Corporation Louisiana
Industrial Computer Source, Inc. California
Itronix Corporation Washington
Parallax Graphics, Inc. California
Synergistic Solutions, Inc. Georgia
Telecommunications Techniques Corporation Maryland
Dynatech Corporation Ltd. England
Dynatech GmbH Germany
Dynatech Holdings Ltd. Guernsey, Channel Islands
Dynatech Holdings S.A.R.L. France
Dynatech Hong Kong, Ltd. Hong Kong
Dynatech Investments, Ltd. Guernsey, Channel Islands
Industrial Computer Source Europe France
TTC Canada Ltd. Canada
TTC Telecommunications Techniques GmbH Germany
TTC Telecommunications Techniques France, SA France
Telecommunications Techniques Company (Ireland) Ltd. Ireland
</TABLE>
* Excludes nonmaterial subsidiaries.
<PAGE> 1
EXHIBIT 23
Consent of Independent Accountants
We consent to the incorporation by reference in the registration statements of
Dynatech Corporation on Form S-3 (File Nos. 2-78465, 2-81026, 2-82260, 2-85387,
2-86457, 2-92391, 2-94757, 33-365, 33-2387, 33-5544, 33-17169, 33-24058,
33-30610, and 33-62551) and on Form S-8 (File Nos. 2-87779, 33-10465, 33-17243,
33-42427, 33-50768, 33-57491, 33-57495, 333-01639, and 333-16461) of our reports
dated May 1, 1997, on our audits of the consolidated financial statements and
financial statement schedule of Dynatech Corporation as of March 31, 1997 and
1996 and for each of the three fiscal years in the period ended March 31, 1997,
which reports have been incorporated by reference or included in this Annual
Report on Form 10-K.
COOPERS & LYBRAND L.L.P.
/s/ Coopers & Lybrand L.L.P.
Boston, Massachusetts
June 18, 1997
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONSOLIDATED
BALANCE SHEET AND CONSOLIDATED STATEMENTS OF OPERATIONS AND IS QUALIFIED IN
ITS ENTIRETY BY REFERENCE TO SUCH FORM 10-K.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> MAR-31-1997
<PERIOD-START> APR-01-1996
<PERIOD-END> MAR-31-1997
<CASH> 39,782
<SECURITIES> 0
<RECEIVABLES> 72,802
<ALLOWANCES> 1,872
<INVENTORY> 40,125
<CURRENT-ASSETS> 161,911
<PP&E> 61,101
<DEPRECIATION> 37,268
<TOTAL-ASSETS> 250,035
<CURRENT-LIABILITIES> 81,517
<BONDS> 5,226
0
0
<COMMON> 3,721
<OTHER-SE> 156,965
<TOTAL-LIABILITY-AND-EQUITY> 250,035
<SALES> 362,412
<TOTAL-REVENUES> 362,412
<CGS> 137,254
<TOTAL-COSTS> 137,254
<OTHER-EXPENSES> 191,669
<LOSS-PROVISION> 646
<INTEREST-EXPENSE> 828
<INCOME-PRETAX> 35,434
<INCOME-TAX> 17,585
<INCOME-CONTINUING> 17,849
<DISCONTINUED> 12,000
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 29,849
<EPS-PRIMARY> 1.66
<EPS-DILUTED> 1.66
</TABLE>
