<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
September 30, 1999
- --------------------------------------------------------------------------------
Date of Report (Date of earliest event reported)
Harvard Industries, Inc.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 0-21362 21-0715310
- --------------------------------------------------------------------------------
(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
3 Werner Way, Lebanon, New Jersey 08833
- --------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (908) 437-4100
--------------
<PAGE>
Item 2. Acquisition or Disposition of Assets.
On September 30, 1999, The Kingston-Warren Corporation, a wholly-owned
subsidiary of Harvard Industries, Inc. (the "Company"), completed its previously
announced sale of substantially all of its assets to KWC Acquisition Corp., a
subsidiary of Hutchinson, S.A., a French corporation, for $115 million, less
certain adjustments. On the day of the closing, Kingston-Warren received
$108,800,000 in cash. Additionally, $2.5 million was deposited by the purchaser
with an escrow agent to secure post closing adjustments, if any, and $3.1
million was deposited by the purchaser with an escrow agent to indemnify
obligations, if any.
Prior to the sale, The Kingston-Warren Corporation was principally
engaged in the business of manufacturing, selling and distributing products for
automotive window and body sealing systems, including glass run channels, belt
strips and body seals. The assets purchased include all real property, capital
assets, inventory, supplies, trademarks and patents, accounts receivable,
contracts and leases, and all other rights and assets owned by The
Kingston-Warren Corporation, except real property located at Lebanon, New Jersey
and Farmington Hills, Michigan, certain computer systems and software, and cash
on hand as of the day of the closing. The purchaser has assumed substantially
all liabilities of The Kingston-Warren Corporation, except guarantees of the
outstanding debt of Kingston-Warren's parent, Harvard Industries, Inc.
<PAGE>
Item 5. Other Events.
I. Satisfaction and Discharge of 14 1/2% Senior Secured Notes due 2003
On September 30, 1999, the Company used part of the proceeds of the sale
of the assets of its Kingston-Warren subsidiary to repurchase all of its
14 1/2% Senior Secured Notes due 2003 for $30,585,361.11, a formula price which
includes interest and prepayment premiums, as well as other adjustments. The
Company deposited such amount with the Trustee on September 30, 1999 and,
pursuant to Section 8.1 of the Indenture, the Trustee discharged and released
the Indenture and Collateral Agreement.
II. Satisfaction and Termination of $115 Million Senior Secured Credit Facility
On September 30, 1999, the Company used part of the proceeds of the sale
of the assets of its Kingston-Warren subsidiary to satisfy all obligations under
its $115 million senior secured revolving credit facility with General Electric
Capital Corporation ("GECC"). The Company paid $69,020,272.44 in satisfaction of
outstanding principal balance, interest accrued through September 30, 1999 and
other charges. GECC terminated the credit facility and issued a Pay-Off
Confirmation Letter dated as of September 30, 1999.
III. New $50 Million Senior Secured Credit Facility
On September 30, 1999, the Company put in place a new $50 million credit
facility with General Electric Capital Corporation, secured by substantially all
of the assets of the Company and its domestic subsidiaries. The credit facility
provides for up to $50 million of revolving credit borrowings with a $15 million
sub-limit letter of credit facility. The proceeds will be used to finance
working capital and other general corporate purposes and for acquisitions.
IV. Repurchase of 762,000 Shares of its Common Stock for approximately $4.95
million
On October 5, 1999, the Company used part of the proceeds of the sale of
the assets of its Kingston-Warren subsidiary to purchase 762,000 shares of its
common stock in a private transaction at an aggregate cost of approximately
$4.95 million. As of September 30, 1999, the Company had 10,234,222 shares of
common stock outstanding.
<PAGE>
Item 7. Financial Statements and Exhibits.
Financial Statements:
UNAUDITED PRO FORMA CONDENSED FINANCIAL DATA
The accompanying unaudited pro forma condensed financial data of Harvard
Industries, Inc. has been prepared to present the effect of the sale of
substantially all the assets and the assumption of certain liabilities of its
Kingston-Warren subsidiary to KWC Acquisition Corp., a subsidiary of Hutchinson
S.A., a French corporation. The unaudited pro forma condensed balance sheet as
of June 30, 1999 was prepared as if the sale had occurred on that date.
The unaudited pro forma condensed statements of operations for June 30, 1999
and November 29, 1998 were prepared as if the sale had occurred on
September 30, 1998 and the unaudited pro forma condensed statements of
operations for September 30, 1998 and June 30, 1998 were prepared as if the sale
had occurred on September 30, 1997.
On November 24, 1998 the Company emerged from Chapter 11 reorganization and in
connection with its emergence implemented "Fresh Start Reporting" as set
forth in Statement of Position 90-7, "Financial Reporting by Entities in
Reorganization under the Bankruptcy Code". Consolidated Financial Statement
amounts for post-confirmation periods are segregated by a black line in order to
signify that such Consolidated Financial Statements are those of a new reporting
entity and are prepared on a basis not comparable to pre-confirmation periods.
The detailed assumptions used to prepare the unaudited pro forma condensed
financial information are contained herein. The pro forma adjustments are
described in the accompanying notes and are based upon available information and
certain assumptions that the Company believes are reasonable.
The following unaudited pro forma financial data does not purport to be
indicative of the results of operations or financial position of the Company
that would have actually been obtained had the transaction been completed as of
the assumed dates and for the periods presented, or which may be obtained in the
future. This information and accompanying notes should be read in conjunction
with the Company's Annual report on Form 10-K for the year ended September 30,
1998 and the financial statements included elsewhere in this report on Form 8-K.
<PAGE>
HARVARD INDUSTRIES, INC.
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
<TABLE>
<CAPTION>
PRE-CONFIRMATION POST-CONFIRMATION
---------------- -----------------
Two Months Seven Months
Ended Pro Forma As Ended Pro Forma As
Nov. 29, 1998 Adjustments Adjusted June 30, 1999 Adjustments Adjusted
------------- ----------- -------- ------------- ----------- --------
<S> <C> <C> <C> <C> <C> <C>
Sales $89,050 ($25,107) $63,943 $298,801 ($83,380) $215,421
Costs and expenses:
Cost of Sales 79,628 (20,319) 59,309 263,914 (72,516) 191,398
Selling, general and 0 0
administrative expenses 5,151 (1,054) 4,097 25,278 (5,024) 20,254
Amortization of intangible
asset 264 (132) 132 36,624 (11,903) 24,721
Impairment and restructuring
charges 0 0 (88) (88)
Interest expense 1,636 (1,636) 0 7,519 (7,519) 0
Gain on sale of operations 0 0 0 0 0 0
Other (income) expense (34) 0 (34) (1,026) 7 (1,019)
------------------------------------------ -------------------------------------------
Total costs and expenses 86,645 (23,141) 63,504 332,221 (96,955) 235,266
Loss from operations before income taxes
reorganization items and
extraordinary items 2,405 (1,966) 439 (33,420) 13,575 (19,845)
Reorganization items 50,384 (12,478) 37,906 0
Provision for income taxes 584 (4) 580 307 4 311
Extraordinary item (206,363) (206,363) 0
------------------------------------------ -------------------------------------------
Net loss $157,800 $10,516 $168,316 ($33,727) $13,571 ($20,156)
========================================== ===========================================
Basic and diluted earnings per
share 22.46 1.50 23.95 (3.94) 1.58 (2.35)
Weighted average number of
common and common equivalent
shares outstanding 7,026,437 7,026,437 7,026,437 8,568,589 8,568,589 8,568,589
</TABLE>
<PAGE>
HARVARD INDUSTRIES, INC.
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
PRE-CONFIRMATION
----------------
<TABLE>
<CAPTION>
Nine Months
Ended Pro Forma As
June 30, 1998 Adjustments Adjusted
------------- ----------- --------
<S> <C> <C> <C>
Sales $572,625 ($107,904) $464,721
Costs and expenses:
Cost of Sales 542,174 (90,006) 452,168
Selling, general and 0
administrative expenses 40,742 (10,222) 30,520
Amortization of intangible
asset 1,188 (594) 594
Impairment and restructuring
charges 10,842 10,842
Interest expense 11,548 (11,548) 0
Gain on sale of operations (26,561) 10,289 (16,272)
Other (income) expense 1,044 0 1,044
---------------------------------------------
Total costs and expenses 580,977 (102,081) 478,896
Loss from operations before income taxes
reorganization items and
extraordinary items (8,352) (5,823) (14,175)
Reorganization items 7,045 7,045
Provision for income taxes 516 (152) 364
Extraordinary item 0
---------------------------------------------
Net loss ($15,913) ($5,671) ($21,584)
=============================================
Basic and diluted earnings per
share (2.26) (0.81) (3.07)
Weighted average number of
common and common equivalent
shares outstanding 7,026,437 7,026,437 7,026,437
</TABLE>
<PAGE>
HARVARD INDUSTRIES, INC.
UNAUDITED PRO FORMA STATEMENT OF OPERATIONS
PRE-CONFIRMATION
----------------
<TABLE>
<CAPTION>
Twelve Months
Ended Pro Forma As
September 30, 1998 Adjustments Adjusted
------------------ ----------- --------
<S> <C> <C> <C>
Sales $690,076 ($137,458) $552,618
Costs and expenses:
Cost of Sales 656,243 (115,789) 540,454
Selling, general and
administrative expenses 66,546 (14,894) 51,652
Amortization of intangible
asset 1,584 (792) 792
Impairment and restructuring
charges 10,842 10,842
Interest expense 14,231 (14,231) 0
Gain on sale of operations (28,673) 10,289 (18,384)
Other (income) expense 3,980 0 3,980
-----------------------------------------------
Total costs and expenses 724,753 (135,417) 589,336
Loss from operations before income taxes
reorganization items and
extraordinary items (34,677) (2,041) (36,718)
Reorganization items 14,920 14,920
Provision for income taxes 6,207 (777) 5,430
Extraordinary item 0
-----------------------------------------------
Net loss ($55,804) ($1,264) ($57,068)
===============================================
Basic and diluted earnings per
share (7.94) (0.18) (8.12)
Weighted average number of
common and common equivalent
shares outstanding 7,026,437 7,026,437 7,026,437
</TABLE>
<PAGE>
HARVARD INDUSTRIES, INC.
UNAUDITED PRO FORMA BALANCE SHEET
JUNE 30, 1999
<TABLE>
<CAPTION>
Consolidated
Balance Sheet Pro Forma
June 30, 1999 Adjustments As Adjusted
----------------- ------------------ -----------------
<S> <C> <C> <C>
Current assets 88,306 9,846 98,152
Property, plant and equipment, net 123,372 (44,732) 78,640
Intangible assets, net 278,277 (90,125) 188,152
Other assets, net 6,647 (3,127) 3,520
----------------- ------------------ -----------------
Total Assets 496,602 (128,138) 368,464
================= ================== =================
Current liabilities 107,178 (17,877) 89,301
Long-term debt 73,500 (73,500) 0
Post-retirement benefits other than pension 95,438 (563) 94,875
Other long-term liabilities 78,903 (1,067) 77,836
Shareholders Equity 141,583 (35,131) 106,452
----------------- ------------------ -----------------
Total Liabilities and Shareholders Equity 496,602 (128,138) 368,464
================= ================== =================
</TABLE>
NOTES TO PRO FORMA CONDENSED FINANCIAL STATEMENTS
The following pro forma adjustments are reflected in the 6/30/99 balance sheet
(a) To reflect the sale of Kingston Warren
(000's)
-------
Cash 104,498
Other assets, net 5,600
Intangible assets (90,125)
Current assets (18,831)
Property, plant & equipment, net (44,732)
Current liabilities 15,764
Other liabilities 1,630
Shareholders equity 26,196
(b) To reflect early retirement of the $115 million senior credit facility
and $25 million 14 1/2% senior notes.
(000's)
-------
Current liabilities 2,113
Long-term debt 73,500
Other assets, net (3,577)
Cash (80,971)
Shareholders equity 8,935
(c) To reflect closing costs associated with the new $50 million senior
credit facility
(000's)
-------
Other assets, net 450
Cash (450)
The following pro forma adjustments are reflected in the statement of operations
to exclude the operating results of Kingston-Warren, adjust intangible assets
and reflect the early retirement of the $115 million senior credit facility and
14 1/2% senior notes and the related interest.
<TABLE>
<CAPTION>
(in thousands)
Seven Two Nine Twelve
Months Months Months Months
Ended Ended Ended Ended
6/30/99 11/29/98 6/30/98 9/30/98
------- -------- ------- -------
<S> <C> <C> <C> <C>
Elimination of interest expense 7,519 1,636 10,213 11,636
Reduce amortization of intangible assets 11,903 132 594 792
Adjust fresh start reorganization charges - 12,478 - -
Elimination of Kingston Warren net earnings (5,851) (3,730) (16,478) (13,692)
</TABLE>
Exhibits:
Exhibit 10.1 Asset Purchase Agreement, dated as of September 10,
1999, among Harvard Industries, Inc. (the "Company"),
The Kingston-Warren Corporation and KWC Acquisition
Corp.
Exhibit 10.2 Credit Agreement, dated as of September 30, 1999, among
the Company, its subsidiaries and General Electric
Capital Corporation, as Lender and as Agent for other
lenders.
Exhibit 99.1 Press Release, dated October 4, 1999, announcing the
sale of the assets of The Kingston-Warren Corporation, a
wholly-owned subsidiary of the Company.
Exhibit 99.2 Press Release, dated October 5, 1999, announcing the
Company's repurchase of 762,000 shares of its common
stock for $4.95 million.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: October 15, 1999 HARVARD INDUSTRIES, INC.
By: /s/ D. Craig Bowman
----------------------------------------
Name: D. Craig Bowman
Title: Secretary and Vice President, Law
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description
------- -----------
Exhibit 10.1 Asset Purchase Agreement, dated as of September 10, 1999,
among Harvard Industries, Inc. (the "Company"), The
Kingston-Warren Corporation and KWC Acquisition Corp.
Exhibit 10.2 Credit Agreement, dated as of September 30, 1999, among the
Company, its subsidiaries and General Electric Capital
Corporation, as Lender and as Agent for other lenders.
Exhibit 99.1 Press Release, dated October 4, 1999, announcing the sale of
the assets of The Kingston-Warren Corporation, a wholly-owned
subsidiary of the Company.
Exhibit 99.2 Press Release, dated October 5, 1999, announcing the Company's
repurchase of 762,000 shares of its common stock for $4.95
million.
<PAGE>
Exhibit 10.1
ASSET PURCHASE AGREEMENT
among
KWC ACQUISITION CORP.,
THE KINGSTON-WARREN CORPORATION
and
HARVARD INDUSTRIES, INC.
<PAGE>
ASSET PURCHASE AGREEMENT
September 10, 1999
This agreement is among KWC Acquisition Corp. (the "Buyer"), a Delaware
corporation, The Kingston-Warren Corporation (the "Seller"), a New Hampshire
corporation, and Harvard Industries, Inc., a Delaware corporation ("Harvard" and
together with the Seller, the "Harvard Parties").
The Seller is principally engaged in the business of manufacturing,
selling and distributing products for automotive window and body sealing
systems, including glass run channels, belt strips and body seals (the
"Business").
The Seller desires to sell to the Buyer, and the Buyer desires to purchase
from the Seller, substantially all of the assets used in connection with the
Business, and the Buyer agrees to assume only those specified liabilities
relating to the Business referred to herein.
Accordingly, it is agreed as follows:
1. Definitions.
As used in this agreement, the following terms have the respective
meanings set forth below.
1.1 "Accountants" shall have the meaning ascribed thereto in Section
3.3.
1.2 "Acquired Assets" shall have the meaning ascribed thereto in
Section 2.1.1.
1.3 "Adjusted Book Value" shall mean, with respect to the Seller as
of the Closing Date, the "adjusted equity" of Seller as calculated in accordance
with the Agreed Upon Procedures.
1.4 "Affected Employee" shall have the meaning ascribed thereto in
Section 7.5.
1.5 "Affiliate" shall have the meaning ascribed thereto in Section
5.23.
1.6 "Agreed Upon Procedures" shall have the meaning ascribed thereto
in Section 3.3.
<PAGE>
1.7 "Assumed Liabilities" shall have the meaning ascribed thereto in
Section 2.1.2.
1.8 "Backlog List" shall have the meaning ascribed thereto in
Section 5.27.
1.9 "Base Purchase Price" shall have the meaning ascribed thereto in
Section 3.1.
1.10 "Business" shall have the meaning ascribed thereto in the
preamble to this agreement.
1.11 "Buyer" shall have the meaning ascribed thereto in the preamble
to this agreement.
1.12 "Buyer 401(K) Plan" shall have the meaning ascribed thereto in
Section 7.5.
1.13 "Buyer's Accountants" shall have the meaning ascribed thereto
in Section 3.3.
1.14 "Buyer Indemnities" shall have the meaning ascribed thereto in
Section 12.1.
1.15 "Buyer's Plans" shall have the meaning ascribed thereto in
Section 7.5(b).
1.16 "Capital Assets" shall mean, with respect to the Seller, any
fixed assets or equipment purchased by the Seller which in accordance with the
Referenced Footnotes would be an addition to the fixed asset account of the
Seller.
1.17 "CERCLA" shall have the meaning ascribed thereto in Section
5.15.
1.18 "Closing" shall have the meaning ascribed thereto in Section
2.1.1.
1.19 "Closing Date" shall have the meaning ascribed thereto in
Section 4.
1.20 "COBRA" shall have the meaning ascribed thereto in Section
7.5(b).
1.21 "Code" shall mean the Internal Revenue Code of 1986, as
amended.
1.22 "Confirmation Order" shall have the meaning ascribed thereto in
Section 5.29.
1.23 "DB Plan" shall have the meaning ascribed thereto in Section
7.5(d).
2
<PAGE>
1.24 "DOL" shall mean the U.S. Department of Labor.
1.25 "Environment" shall have the meaning ascribed thereto in
Section 5.15.
1.26 "Environmental Laws" shall have the meaning ascribed thereto in
Section 5.15.
1.27 "Environmental Liabilities" shall have the meaning ascribed
thereto in Section 5.15.
1.28 "Employee Benefit Plan" shall mean any "employee benefit plan",
within the meaning of Section 3(3) of ERISA, and any other bonus, profit
sharing, compensation, pension, severance, deferred compensation, fringe
benefit, insurance, welfare, medical, post-retirement health or welfare benefit,
medical reimbursement, health, life, stock option, stock purchase, tuition
refund, service award, company car, scholarship, relocation, disability,
accident, sick pay, sick leave, vacation, termination, individual employment,
executive compensation, incentive, commission, payroll practices, retention,
change in control or other plan, agreement, policy, trust fund or arrangement
(whether written or unwritten, funded or unfunded, insured or self-insured).
1.29 "Environmental Permits" shall have the meaning ascribed thereto
in Section 5.15.
1.30 "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
1.31 "ERISA Affiliate" shall mean any entity that would be deemed a
"single employer" with any Harvard Party under Section 414(b), (c), (m) or (o)
of the Code.
1.32 "Escrow Agent" shall mean Norwest Bank Minnesota, N.A.
1.33 "Escrow Agreement" shall mean the escrow agreement to be
entered into at the Closing among the Buyer, the Harvard Parties and the Escrow
Agent.
1.34 "Escrow Deductions" shall have the meaning set forth in Section
7.4(a).
1.35 "Estimated Adjusted Book Value" shall have the meaning ascribed
thereto in Section 3.3.
1.36 "Estoppels" shall have the meaning ascribed thereto in Section
9.12.
1.37 "Excluded Assets" shall have the meaning ascribed thereto in
Section 2.2.
3
<PAGE>
1.38 "Excluded Liabilities" shall have the meaning ascribed thereto
in Section 2.3.
1.39 "Final Purchase Price" shall have the meaning ascribed thereto
in Section 3.3.
1.40 "Financial Statements" shall mean (a) the consolidated balance
sheet of Harvard as at September 30, 1998 and 1997, together with the related
statements of operations, stockholders' equity and cash flows for the years then
ended, each as audited by Harvard's independent certified public accountants and
(b) the March 28 Financial Statements.
1.41 "Fixed Assets" shall have the meaning ascribed thereto in
Section 2.1.1.
1.42 "Former Real Property" shall have the meaning ascribed thereto
in Section 5.15.
1.43 "Fund" shall mean the Fund defined in Section 3.1.
1.44 "GAAP" shall mean generally accepted accounting principles
applied in the United States.
1.45 "Guarantor" shall have the meaning ascribed thereto in Section
10.11.
1.46 "Guaranty" shall have the meaning ascribed thereto in Section
10.11.
1.47 "Harvard" shall have the meaning ascribed thereto in the
preamble to this agreement.
1.48 "Harvard Parties" shall have the meaning ascribed thereto in
the preamble to this agreement
1.49 "Hazardous Substances" shall have the meaning ascribed thereto
in Section 5.15.
1.50 "HSR Act" shall have the meaning ascribed thereto in Section
7.3.
1.51 "Indemnitee" shall have the meaning ascribed thereto in Section
13(a).
1.52 "Indemnitor" shall have the meaning ascribed thereto in Section
13(a).
1.53 "Indemnity Escrow Fund" shall have the meaning ascribed thereto
in Section 3.1.
4
<PAGE>
1.54 "Intellectual Property" shall mean all patents, trademarks,
service marks, tradenames and copyrights of the Harvard Parties which are
primarily used in the Business.
1.55 "Inventories" shall have the meaning ascribed thereto in
Section 2.1.1.
1.56 "IRS" shall mean the U.S. Internal Revenue Service.
1.57 "Knowledge" or "knowledge" shall mean, with respect to any
representation made by the Harvard Parties, the knowledge of those persons set
forth on Schedule 1.57.
1.58 "Lease Assignment and Assumption Agreement" shall have the
meaning ascribed thereto in Section 11.1(c).
1.59 "Liens" shall have the meaning ascribed thereto in Section
2.1.1.
1.60 "Losses" shall have the meaning ascribed thereto in Section
12.1.
1.61 "March 28 Adjusted Book Value" shall have the meaning ascribed
thereto in Section 3.3.
1.62 "March 28 Financial Statements" shall mean the unaudited
balance sheet of the Seller as of March 28, 1999, together with the unaudited
related statement of operations for the period then ended.
1.63 "Material Contracts" shall have the meaning ascribed thereto in
Section 5.11.
1.64 "Newmarket Landfill Reserve Amount Claim" shall mean the
contingent obligation of the Seller to the Town of Newmarket, New Hampshire in
respect of environmental cleanup liability relating to the Newmarket Landfill.
1.65 "Ordinary Contracts" shall have the meaning ascribed thereto in
Section 2.1.1.(g).
1.66 "Outstanding Checks" shall have the meaning ascribed thereto in
Section 7.8.
1.67 "Participant" shall have the meaning ascribed thereto in
Section 7.5.
1.68 "PBGC" shall mean the Pension Benefit Guaranty Corporation.
1.69 "Permits" shall have the meaning ascribed thereto in Section
2.1.1.
5
<PAGE>
1.70 "Permitted Liens" means, with respect to any Seller Property:
(a) any defects in, exceptions to, or conditions, Liens, or other matters
relating to title as listed on Schedule 1.70 hereto, only to the extent the same
affect such Seller Property; (b) any defects in, exceptions to, or conditions,
Liens or other matters relating to title to such Seller Property (other than
those described in clause (a) of this definition) as are set forth in Schedule
9.11; (c) Liens for taxes and assessments or charges of governmental entities
that are not yet due and payable or that are being contested in good faith by
appropriate proceedings and for which, in either case, appropriate reserves in
accordance with the Referenced Footnotes, have been established on the books and
records of the Seller; (d) all the Seller Leases and Tenant Leases; (e)
mechanic's liens incurred in the ordinary course of the business; and (f)
easements, reservations, rights of way and similar encumbrances affecting Seller
Property which do not materially interfere with the ordinary use of the Seller
Property or materially detract from the value thereof.
1.71 "Plan" shall have the meaning ascribed thereto in Section 5.29.
1.72 "Present Real Property" shall have the meaning ascribed thereto
in Section 5.15.
1.73 "Proprietary Assets" shall mean, with respect to the Business,
all Intellectual Property, pending patent applications, unpatented inventions,
and registrations and pending applications therefor, and all trade secrets,
computer programs and software used in manufacturing processes, research and
development, know-how, customer lists, manufacturing, engineering and other
drawings and blueprints, technology, technical information, engineering data,
design and engineering specifications, inventions and other proprietary
processes and information of any kind owned by the Seller or in which the Seller
has a proprietary or ownership or usage right, but only to the extent of such
proprietary or ownership or usage right, or which are primarily used in the
Business.
1.74 "Purchase Price Allocation" shall have the meaning ascribed
thereto in Section 3.2.
1.75 "Purchase Price Escrow Fund" shall have the meaning ascribed
thereto in Section 3.1.
1.76 "Receivables" shall have the meaning ascribed thereto in
Section 2.1.1.
1.77 "Referenced Footnotes" shall mean the unaudited footnotes
relating to the Seller's financial statements attached hereto as Schedule 1.77.
1.78 "Returns" shall mean all returns, reports, estimates,
information returns and statements (including any related or supporting
information) filed or to be filed with any Tax Authority in connection with the
determination, assessment, collection or administration of any Taxes.
6
<PAGE>
1.79 "Section 12.1 Obligations" shall mean any and all Losses or
financial obligations incurred by the Buyer and not promptly satisfied by the
Harvard Parties pursuant to Section 12.1 of this agreement.
1.80 "Seller Leases" shall have the meaning ascribed thereto in
Section 5.8(c).
1.81 "Seller Plan" shall mean any Employee Benefit Plan maintained,
sponsored or contributed to by any Harvard Party or any ERISA Affiliate on
behalf of any employee, consultant, director or stockholder of the Seller
(whether current, former or retired) or their beneficiaries or on behalf of any
employee, consultant, director or stockholder performing services relating to
the Business or with respect to which any Harvard Party or any ERISA Affiliate
has or has had any obligation on behalf of any such employee or beneficiary.
1.82 "Seller Property" shall mean all real property (including,
without limitation, all land and all improvements thereon) owned or leased by
the Harvard Parties and primarily used in the Business.
1.83 "Supplies" shall mean all tools categorized as small hand tools
and packaging and office supplies owned by the Harvard Parties, whether or not
expensed, and primarily used or intended for use in the Business.
1.84 "Tax Authority" shall mean any federal, national, foreign,
state, municipal or other local government, any subdivision, agency, commission
or authority thereof, or any quasi-governmental body or other authority
exercising any taxing or tax regulatory authority.
1.85 "Taxes" shall mean all taxes, including, but not limited to,
income (whether net or gross), excise, real or personal property, sales,
transfer, gains, gross receipts, occupation, privilege, payroll, wage,
unemployment, workers' compensation, social security, occupation, use, value
added, capital, gross receipts, franchise, license, severance, stamp, premium,
windfall profits, environmental (including taxes under Code Sec. 59A), capital
stock, profits, withholding, disability, registration, customs duties,
alternative or add-on minimum, estimated or other tax of any kind whatsoever
(whether disputed or not) imposed by any Tax Authority, including any related
charges, fees, interest, penalties, additions to tax or other assessments.
1.86 "Tenant Leases" shall have the meaning ascribed thereto in
Section 5.8(c).
1.87 "Termination Agreement" shall have the meaning ascribed thereto
in Section 9.13.
1.88 "Transaction Documents" shall have the meaning ascribed thereto
in Section 5.2.
7
<PAGE>
1.89 "Transferred Assets" shall have the meaning ascribed thereto in
Section 7.5.
1.90 "Transferred Employee" shall have the meaning ascribed thereto
in Section 7.5.
1.91 "Transition Agreement" shall have the meaning ascribed thereto
in Section 9.14.
1.92 "Year 2000 Issue" shall have the meaning ascribed thereto in
Section 5.24.
20 Purchase and Sale of the Business.
2.1 Purchase of the Business. Upon the terms and subject to the
conditions of this agreement, and upon the basis of the agreements,
representations and warranties contained in, and the schedules and exhibits to,
this agreement:
2.1.1 The Acquired Assets. At the closing of the purchase and
sale of the Business and the other transactions contemplated by this agreement
(the "Closing") and as of the Closing Date, the Seller and Harvard, as
appropriate, shall sell, transfer, assign, convey and deliver to the Buyer, and
the Buyer shall purchase and acquire from the Seller and Harvard, as
appropriate, all right, title and interest of the Seller and Harvard, as
appropriate, in and to all of the assets used, or held for use in the operation
of the Business other than the Excluded Assets (the "Acquired Assets"), free and
clear of all liens, mortgages, security interests, charges, encumbrances,
options, rights of first refusal, security interests, easements, reservations,
encroachments, covenants, restrictions and other defects in title, leases,
subleases, obligations or claims or other third party rights of any kind
("Liens"), other than Permitted Liens. Without limiting the generality of the
foregoing, the Acquired Assets shall be comprised of all of the following:
(a) all accounts receivable, notes and other rights to
receive payments from customers, including all accrued accounts receivable
representing amounts payable in respect of products and services sold or
otherwise provided to customers that have not been invoiced or billed as at the
Closing Date, the proceeds of accounts receivable including uncashed checks in
payment thereof received by the Seller prior to the Closing Date (excluding
receivables from Hutchinson S.A., a French corporation, and its Affiliates
relating to the joint venture (the "JV") created pursuant to that certain
Limited Liability Agreement between the Seller and Hutchinson S.A., dated
November 27, 1995, subject to confirmation that the accounts receivable of
Seller as of the Closing Date do not also include any accruals in respect of
such receivables) ("Receivables");
(b) all inventories of raw materials, work-in-progress,
finished goods, tooling, molds, purchased parts, operating supplies and
materials, factory and
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maintenance supplies and related inventory items relating to or used in
connection with the Business as of the Closing Date ("Inventories");
(c) all (i) Capital Assets, machinery, equipment,
automobiles and other vehicles, files, systems, furniture, fixtures, office
equipment and leasehold improvements, including, without limitation, information
technology and computer assistance design equipment ("Fixed Assets"), used by
the Seller or used by Harvard principally in the Business and (ii) Fixed Assets
that have been ordered for the Business prior to the Closing Date, whether or
not received as at the Closing Date (which Fixed Assets ordered for the Business
prior to the date hereof and which have not been received as of the date hereof
with a value exceeding $50,000 are specifically identified on Schedule
2.1.1(c));
(d) all Proprietary Assets to the extent assignable and
all Seller Property;
(e) all books, records, printouts, drawings, data,
files, notes, notebooks, accounts, invoices, correspondence and memoranda
(including all personnel records of all employees of the Seller who are offered
and accept employment with the Buyer), whether or not confidential, which are
owned by the Seller or primarily used in the Business;
(f) the Supplies;
(g) all rights and benefits of the Seller and Harvard,
as appropriate, under (i) all the Material Contracts and (ii) all other leases,
agreements, arrangements, contracts, commitments or understandings, written or
oral, whether legally binding or otherwise that have been entered into by the
Seller or by Harvard for the benefit of the Seller in the normal and ordinary
course of the Business prior to the Closing Date (collectively, "Ordinary
Contracts"), provided that (i) any such Material Contract is consistent with the
representations and warranties of the Harvard Parties contained herein with
respect to the Material Contracts and (ii) the other party to any such Material
Contract has not previously prepaid or otherwise furnished the Seller the
consideration to be paid by such person in accordance with the terms of such
Material Contract;
(h) any and all (i) rights to make claims and to receive
insurance payments or recoveries under insurance policies of the Harvard
Parties, but only to the extent that such claims and insurance payments or
recoveries relate to Assumed Liabilities and (ii) claims made by the Harvard
Parties under any insurance policy with respect to any Assumed Liability and any
related refunds or proceeds and all rights relating thereto;
(i) to the extent assignable pursuant to the terms
thereof, any and all governmental licenses, permits, including Environmental
Permits, or authorizations (collectively, "Permits") issued in connection with
the operation of the Business;
(j) all rights, benefits and claims, including rights of
indemnification, warranty, monetary relief and/or replacement of Inventories,
products or
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supplies (including, without limitation, the Supplies), which may be asserted
against any vendor, manufacturer or supplier of any of the Acquired Assets; and
(k) all other rights and assets, tangible or intangible,
of the Harvard Parties exclusively used by the Harvard Parties in connection
with the Business;
provided, however, that the Acquired Assets shall not, in any event, include any
of the Excluded Assets.
2.1.2 The Assumed Liabilities. At the Closing and as of the
Closing Date, the Seller shall assign, and the Buyer shall assume and agree, to
perform, pay or discharge only those liabilities and obligations of the Seller
of the type which are (i) included in the computation of Adjusted Book Value as
of the Closing Date or (ii) set forth on Schedule 2.1.2 (the "Assumed
Liabilities"), provided, however that the Assumed Liabilities shall not, in any
event, include any of the Excluded Liabilities.
2.2 Excluded Assets. On the Closing Date, the Seller shall retain
all right, title and interest in and to, and the Buyer shall not purchase or
acquire, any of the following assets and properties of the Seller (the "Excluded
Assets"):
(a) the corporate seals, certificates of incorporation, minute
books, stock books, tax returns, books of account, or other records having to do
with the corporate organization of the Seller; provided, however, that the
Seller shall retain the same for a period of not less than seven (7) years after
the Closing Date and provide reasonable access thereto to the Buyer and its
representatives for any purpose reasonably related to the Business.
(b) the rights which accrue or will accrue to the Seller under
this agreement;
(c) all cash on hand, cash and cash equivalent items held by
or on behalf of the Seller, including, without limitation, checking accounts,
marketable securities, bank accounts and other cash items and claims for tax
refunds in respect of any periods ending on or prior to the Closing Date;
(d) any or all actions, claims, causes of action, rights of
recovery and rights of set off of any kind arising before, on, or after the
Closing Date relating to the Excluded Assets set forth above;
(e) all right, title and interest of the Harvard Parties
relating to real property located in Lebanon, New Jersey and Farmington Hills,
Michigan, and any other real property owned by the Harvard Parties which is used
by the Harvard Parties exclusively for purposes other than in connection with
the Business; and
(f) AS400 hardware and affiliated software and JBA System 21
software.
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2.3 Excluded Liabilities. Except for the Assumed Liabilities set
forth on Schedule 2.1.2, neither the Buyer nor any affiliate of the Buyer shall
assume or be liable for any liabilities and obligations of the Harvard Parties
or any of their respective subsidiaries, affiliates or associates. Without
limiting the generality of the foregoing, neither the Buyer nor any of the
Buyer's affiliates shall assume, or become in any way liable for any of the
following (collectively, the "Excluded Liabilities"), all of which Excluded
Liabilities shall remain the sole and exclusive responsibility of the Harvard
Parties and remain under the Harvard Parties' exclusive direction and control:
(a) except as set forth in Section 8.7, any liabilities of the
Harvard Parties for Taxes, including, without limitation, Tax liabilities
resulting from the sale of assets by the Harvard Parties to the Buyer;
(b) any salaries, wages, payroll taxes, severance or
termination pay, benefits, bonuses, vacation pay and compensation of any type
owed to employees of the Harvard Parties but only to the extent that the
foregoing are not included in the Assumed Liabilities;
(c) any liability, cost, expense or contingency for any
violation of, or non-compliance with, any other federal, state or local law,
statute, ordinance or regulation, including, without limitation, any anti-trust
or related statutes or regulations, whether or not arising out of the operation
of the Business, which has been asserted, or shall be asserted against any party
to this agreement, the Acquired Assets, the Excluded Assets or the Business
prior to or following the Closing but only to the extent and for such period of
time that the acts of omission or commission giving rise to such violation or
non-compliance shall have occurred on or prior to the Closing Date;
(d) any claims, liabilities or contingencies, product
liability, other tort claims or related contingencies, whether founded upon
negligence, breach of warranty, strict liability in tort, and/or other similar
legal theory, seeking compensation or recovery for injury to persons or damage
to property, but only to the extent that the acts of omission or commission
giving rise to such claims, contingencies or liabilities occurred in connection
with: (i) the operation of the Business prior to the Closing Date by the Harvard
Parties, (ii) any products or services sold and delivered or rendered by the
Harvard Parties, or (iii) any other transactions, acts or omissions by the
Harvard Parties or any of their respective agents, irrespective of when the
accident, injury or death giving rise to any such actual or alleged liability or
tort occurs or a claim relating thereto is thereafter asserted;
(e) any claims, liabilities, or contingencies arising out of
any litigation, unfair labor practices, equal opportunity employment claims and
related labor claims, federal, state or local governmental investigations or
administrative proceedings currently pending against the Harvard Parties,
including, without limitation, those pending claims, liabilities and
contingencies which are disclosed on Schedule 5.10 to this agreement;
(f) any Environmental Liabilities relating to any Acquired
Assets or the Business whether or not arising out of the operation of the
Business or the ownership, lease,
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use or operation of any real property, which have been asserted, or may be
asserted against any party to this agreement, the Acquired Assets, the Excluded
Assets or the Business prior to or following the Closing (including, without
limitation, any investigation, remedial or monitoring costs), but only to the
extent that the acts of omission or commission or physical conditions giving
rise to such shall have occurred or the physical conditions shall have existed
on or prior to the Closing Date, including, without limitation, all
Environmental Liabilities relating to the following: (1) the Newmarket Landfill
located in Newmarket, New Hampshire; (2) the Old Southington Landfill Site
located in Old Southington, Connecticut; (3) the Solvents Recovery Service of
New England Superfund Site located in Southington, Connecticut; (4) the Resolve,
Inc. Superfund Site located in Dartmouth, Massachusetts; (5) the Keefe
Environmental Services Superfund Site located in Epping, New Hampshire; (6) the
Kingston Steel Drum Site located in Kingston, New Hampshire; and (7) the Cannon
Engineering Superfund Sites located in Bridgeport and Plymouth, Massachusetts
and Londonderry and Nashua, New Hampshire;
(g) any Environmental Liabilities relating to or arising out
of any Excluded Asset, whether or not arising out of the operation of the
Business or the ownership, lease, use or operation of any real property, which
have been asserted or may be asserted against any party to this agreement, the
Acquired Assets, the Excluded Assets or the Business;
(h) any liability or obligation of any Harvard Party or any
ERISA Affiliate with respect to any Employee Benefit Plan (other than any
liability or obligation specifically assumed by Buyer pursuant to Section 7.5
hereof) established, maintained, sponsored or contributed to by any Harvard
Party or any ERISA Affiliate, including, but not limited to (i) liabilities for
complete and partial withdrawals under any "multiemployer plan" (as defined in
Section 3(37) of ERISA) pursuant to Section 4203 or 4205 of ERISA, respectively;
(ii) liabilities to the PBGC (including, without limitation, liabilities for
premiums and terminations); (iii) liabilities under Section 4980B of the Code or
Part 6 of Subtitle B of Title I of ERISA; (iv) liabilities arising under Section
412 of the Code or Section 302(a)(2) of ERISA; and (v) liabilities for any
retiree medical benefits (other than any liability or obligation specifically
assumed by Buyer pursuant to Section 7.5 hereof);
(i) any liability or obligation of any kind, whether accrued,
absolute, contingent or otherwise of the Harvard Parties or any of their
respective affiliates, subsidiaries or associates in respect of any indebtedness
(including, without limitation, any of the indebtedness which is secured by the
Liens referred to on Schedule 5.8(a)), undertakings or commitments to any lender
or creditor (including, without limitation, any inter-company or related party
indebtedness, obligation, undertaking or commitment) but only to the extent that
the foregoing are not included in the Assumed Liabilities; and
(j) all of the Harvard Parties' obligations and liabilities
under this agreement.
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30 Purchase Price.
3.1 The Purchase Price. In full consideration for its purchase of
the Acquired Assets and the assumption of the Assumed Liabilities, the Buyer
shall pay to the Seller the sum of $115,000,000.00 (one hundred fifteen million
dollars) (the "Base Purchase Price"), subject to adjustment as provided in
Section 3.3, as follows;
(a) at the Closing, the Buyer shall pay to the Seller by wire
transfer of immediately available funds to an account designated by the Seller
by notice given to the Buyer at least three business days before the Closing an
aggregate of $108,800,000.00 (one hundred eight million eight hundred thousand
dollars);
(b) subject to the terms and conditions of the Escrow
Agreement, the Buyer shall deliver to the Escrow Agent an aggregate of
$6,200,000.00 (six million two hundred thousand dollars), of which $2,500,000.00
(two million five hundred thousand dollars) shall be used to secure the
obligations, if any, of the Harvard Parties in respect of any adjustment to the
Base Purchase Price pursuant to Section 3.3 (the "Purchase Price Escrow Fund")
and $3,700,000.00 (three million seven hundred thousand dollars) of which shall
be used to secure the obligations of the Harvard Parties in respect of Section
12.1 Obligations (the "Indemnity Escrow Fund and, together with the Purchase
Price Escrow Fund, the "Fund"); and
(c) notwithstanding anything herein to the contrary, if on or
prior to the Closing Date the Harvard Parties shall deliver to the Buyer an
insurance policy from a nationally recognized insurance carrier which policy is
issued in favor of Buyer and insures the Buyer against any liability in respect
of the Newmarket Reserve Amount Claim until at least September 29, 2000 and
which policy and insurance carrier is reasonably satisfactory in all respects to
the Buyer (including, without limitation, provisions with respect to
deductibles, exclusions and limitations on the insurer's obligations), then the
Buyer shall increase the amount payable to the Seller pursuant to Section 3.1(a)
above and the Purchase Price Escrow Fund shall be reduced, in each case, by
$654,310.00 less the applicable deductible and each related reference in this
agreement shall be deemed amended to reflect the foregoing.
3.2 Allocation of Consideration. Schedule 3.2 sets forth the fair
market value of the Acquired Assets other than Receivables and Inventory that
have been agreed to by the parties (the "Purchase Price Allocation"). Upon the
Estimated Adjusted Book Value becoming final and binding pursuant to Section
3.3, the Purchase Price Allocation shall include the value of the Receivables
and Inventory included in the Adjusted Book Value as finally determined in
accordance with Section 3.3. The Buyer and the Seller shall use the agreed upon
Purchase Price Allocation for all income tax purposes and agree to file all
required Returns (including, without limitation, Returns required under section
1060 of the Code) consistent with such Purchase Price Allocation.
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3.3 Adjustment Procedure.
(a) The Seller shall prepare its computation of Adjusted Book
Value as of the Closing Date (the "Estimated Adjusted Book Value"). The
Estimated Adjusted Book Value shall be calculated based upon the results of a
physical inventory to be conducted on or about the Closing Date and otherwise in
accordance with the procedures set forth on Schedule 3.3(a) (the "Agreed Upon
Procedures"). The Seller will deliver its computation of the Estimated Adjusted
Book Value, together with all supporting documents relating thereto, to Buyer
within forty-five (45) days after the Closing Date. The Seller shall grant to
Buyer and Arthur Andersen LLP, certified public accountants ("Buyer's
Accountants"), full access to its books, records and management for the purpose
of verifying its computation of the Estimated Adjusted Book Value and the Seller
shall permit Buyer's Accountants to observe the physical inventory to be
conducted in connection with the Seller's computation of Estimated Adjusted Book
Value. If within forty-five (45) days following delivery of its computation of
the Estimated Adjusted Book Value, Buyer has not given the Seller written notice
of Buyer's objection to the Seller's computation of the Estimated Adjusted Book
Value, then the Estimated Adjusted Book Value will be final and binding on the
Buyer and the Seller. If Buyer gives such notice of objection, Buyer and the
Seller shall negotiate in good faith to resolve any such disputes within fifteen
(15) days following the delivery of such objection by Buyer. If Buyer and the
Seller are unable to resolve such disputes, then the issues in dispute will
immediately be submitted to Ernst & Young LLP, certified public accountants (the
"Accountants"), for resolution within thirty (30) days after such submission. If
issues in dispute are submitted to the Accountants for resolution, (i) each
party will furnish to the Accountants such work papers and other documents and
information relating to the disputed issues as the Accountants may request and
are available to that party or its stockholders (or its independent public
accountants), and will be afforded the opportunity to present to the Accountants
any material relating to the determination of the Adjusted Book Value as of the
Closing Date and to discuss the determination of the Adjusted Book Value as of
the Closing Date with the Accountants; (ii) the determination of the final
Adjusted Book Value as of the Closing Date by the Accountants, as set forth in a
notice delivered to both parties by the Accountants, will be final and binding
on the Buyer and the Seller; and (iii) the Harvard Parties and the Buyer shall
each bear 50% of the fees of the Accountants for such determination. The Harvard
Parties, on the one hand, and the Buyer, on the other hand, hereby covenant and
agree that to the extent that either such party shall determine that any amount
of the Adjusted Book Value as of the Closing Date is not in dispute and
therefore either such party shall owe the other such undisputed amount (the
"Undisputed Amount"), each party hereto covenants and agrees to promptly pay
(and/or cause the Escrow Agent to release funds held in the Purchase Price
Escrow Fund) any such Undisputed Amount to the party entitled thereto.
(b) In accordance with the procedures set forth in Section
3.3(c), the Base Purchase Price shall be increased or decreased as follows: if
the Adjusted Book Value as of the Closing Date is less than $48,839,000 ("March
28 Adjusted Book Value"), the Base Purchase Price shall be decreased, dollar for
dollar, by the amount by which the Adjusted Book Value as of the Closing Date is
less than the March 28 Adjusted Book Value. If the Adjusted Book Value as of the
Closing Date is greater than the March 28 Adjusted Book
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Value, the Base Purchase Price shall be increased, dollar for dollar, by the
amount by which the Adjusted Book Value as of the Closing Date exceeds the March
28 Adjusted Book Value.
(c) The Base Purchase Price, as ultimately increased or
decreased, after giving effect to Section 3.3(b) shall be referred to herein as
the "Final Purchase Price." If the Final Purchase Price is greater than the Base
Purchase Price, Buyer shall, within ten (10) business days after the final
determination of the Adjusted Book Value as of the Closing Date in accordance
with Section 3.3(a), pay the Seller (after giving effect to any Undisputed
Amount previously paid by the Buyer) by wire transfer or delivery of other
immediately available funds the amount by which the Final Purchase Price exceeds
the Base Purchase Price and simultaneously therewith cause the Escrow Agent to
pay the entire amount of the Purchase Price Escrow Fund to the Seller. If the
Final Purchase Price is less than the Base Purchase Price, the Harvard Parties
shall (after giving effect to any Undisputed Amount previously paid by the
Harvard Parties to the Buyer), within ten (10) business days after the final
determination of the Adjusted Book Value as of the Closing Date in accordance
with Section 3.3(a), (i) cause the Escrow Agent to pay to the Buyer from the
Purchase Price Escrow Fund the amount by which the Base Purchase Price exceeds
the Final Purchase Price (such amount is hereinafter referred to as the
"Shortfall Adjusted Book Value Amount") and the balance, if any, of the Purchase
Price Escrow Fund shall be paid to the Seller and (ii) if the Shortfall Adjusted
Book Value Amount exceeds the entire amount of the Purchase Price Escrow Fund
(such amount is hereinafter referred to as the "Purchase Price Escrow Fund
Deficit Amount") pay to Buyer the Purchase Price Escrow Fund Deficit Amount by
wire transfer or delivery of other immediately available funds.
40 Closing.
The Closing shall be held at the New York City offices of Proskauer
Rose LLP on a date agreed upon by the parties (the "Closing Date"), but in no
event later than September 30, 1999; provided, however, that if the Harvard
Parties shall have failed to (i) satisfy the conditions set forth in Sections
9.5 or 9.12 or (ii) deliver to Buyer the schedules required by this agreement in
a form mutually acceptable to the Harvard Parties and the Buyer by September 23,
1999, then the Buyer shall have the right to extend the Closing Date to October
29, 1999. At the Closing, the parties shall execute and deliver the documents
referred to in Section 11. The parties hereto agree that the Closing shall be
deemed effective at 11:59 P.M. on the Closing Date.
50 Representations and Warranties of the Harvard Parties.
The Harvard Parties, jointly and severally, hereby represent and
warrant to the Buyer as follows (all of the representations and warranties of
the Harvard Parties in this Section 5 shall be deemed to have been made (i) as
of the date of this agreement or (ii) in the event a specific date is expressly
provided for in any representation and warranty, as of such date):
5.1 Organization, Good Standing and Qualification. Each of the
Seller and Harvard is a corporation duly organized, validly existing and in good
standing under the laws of New Hampshire and Delaware, respectively, and has the
full power and authority to own, lease
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and operate its properties as it now does and to carry on the Business as it is
now conducted. The Seller is duly qualified and in good standing in all
jurisdictions in which the conduct of the Business requires qualification and
the failure of which could reasonably be expected to have a material adverse
effect on the Business. The copies of the Seller's certificate of incorporation
and by-laws that have been delivered to the Buyer are true, complete and correct
as of the date of this agreement.
5.2 Authority; Consents and No Conflicts.
(a) Each of the Harvard Parties has the full legal right,
power and authority to enter into and to perform each Transaction Document to
which it is a party. This agreement, the Escrow Agreement and all other
documents, certificates, instruments and writings relating to this agreement
(collectively, the "Transaction Documents") to be executed by the Harvard
Parties are (or when executed and delivered will be) legal, valid and binding
obligations of the Seller or Harvard, as the case may be, enforceable against
the Seller or Harvard, as the case may be, in accordance with their terms,
except as may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights in general and subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). The boards of directors of the Harvard
Parties and the shareholders of the Seller have unanimously approved this
agreement and the transactions contemplated by this agreement and have duly
authorized the execution and delivery of this agreement. The approval of this
agreement and the transactions contemplated hereby by the shareholders of
Harvard is not required.
(b) Except as set forth on Schedule 5.2(b), no consent,
approval, authorization or waiver is required from any governmental authority or
any other third party, in connection with the execution, delivery and
performance of any of the Transaction Documents by the Seller or Harvard, as the
case may be, and such execution, delivery and performance will not (i) conflict
with or result in a breach of the certificate of incorporation or by-laws of the
Seller or Harvard, as the case may be, (ii) violate, result in a breach of or
conflict with, or require any notice, filing or consent under, any statute,
rule, regulation or other provision of law or regulation or any order, judgment,
or other direction of a court or other tribunal or any other governmental
requirement, permit, registration, license or authorization applicable to the
Seller, Harvard or the Business, as the case may be, when such violation could
reasonably be expected to have a material adverse effect on the Business, (iii)
violate, conflict with, result in a breach of, constitute a material default
under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, or require any notice under any
material agreement, instrument or writing of any nature to which the Seller or
Harvard, as the case may be, is a party or by which it is bound or to which any
of its assets is subject (including, without limitation, the Material Contracts)
or (iv) result in the creation of a Lien on any of the Acquired Assets.
5.3 Ownership of Seller; Subsidiaries. Harvard is the sole record
and beneficial owner of all of the shares of capital stock of the Seller, free
and clear of any Liens (other than as set forth on Schedule 5.3). Except as set
forth on Schedule 5.3, there is not outstanding any security, option, warrant,
right, agreement, understanding or commitment of any
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kind entitling any person to acquire any shares of capital stock of the Seller.
There are no agreements, commitments or restrictions relating to ownership or
voting of any shares of stock or other securities of the Seller, other than
those agreements listed on Schedule 5.3. Except as set forth on Schedule 5.3,
the Seller has no subsidiaries and has no equity interest in any corporation,
partnership, joint venture or other entity. Except as set forth on Schedule 5.3,
Harvard has conducted the Business only through the Seller.
5.4 Financial Statements. Schedule 5.4 contains a true and complete
copy of the Financial Statements. All the Financial Statements insofar as they
relate to the Seller in all material respects conform to the books and records
of the Seller as prepared in the ordinary course of business, were prepared in
accordance with the Referenced Footnotes consistently applied and present fairly
the financial position and the results of operations of the Seller as of the
dates and for the periods indicated. Except as disclosed in the Financial
Statements, since the respective dates of the Financial Statements, there has
been no change in any of the significant accounting (including tax accounting)
policies, practices or procedures of the Harvard Parties.
5.5 Absence of Undisclosed Liabilities. Except to the extent
reflected or reserved for in the March 28 Financial Statements as of the date of
this agreement, the Seller does not have any material liability or obligation of
any kind, whether accrued, absolute, contingent or otherwise (and neither the
Business nor the Acquired Assets are subject to any liability or obligation of
any kind, whether accrued, absolute, contingent or otherwise), other than
liabilities and obligations referred to on Schedule 5.5.
5.6 Absence of Certain Changes. Since March 28, 1999, the Seller has
operated the Business in the ordinary course and consistent with past practice
and there has been no material adverse change in the business, properties,
assets, liabilities, commitments, earnings, financial condition or prospects of
the Seller or the Business.
5.7 Tax Matters.
(a) The Seller is a member of the consolidated group for
federal income tax purposes of which Harvard is the parent and the Seller has
been a member of such group since 1986. Schedule 5.7(a) lists all jurisdictions
in which the Seller has filed income tax returns and whether such returns have
been filed on a separate or combined, consolidated or unitary basis, and if on
such basis, the other corporations which are included in such returns. Except as
set forth on Schedule 5.7(a) and except for jurisdictions in which the failure
to file would not have a material adverse effect on the Seller or the Business,
Seller has filed returns in all jurisdictions in which Seller is required to
file a tax return.
(b) All Returns with respect to any Tax required to be filed
prior to the date hereof by, or with respect to, the Seller have been filed. All
such Returns were true, accurate and complete in all material respects. The
Seller has paid all Taxes due and payable on such Returns. The Seller has
provided to Buyer copies, for the last three taxable years, of all income or
franchise Tax Returns filed by, with respect to, or including the Seller.
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(c) No audit, other administrative proceeding or judicial
proceeding regarding Taxes is currently being conducted with respect to the
Seller; no issues that had been raised by a Tax Authority are pending, and the
Seller has not received notification from any Tax Authority that it intends to
commence an action with respect to any Return of the Seller.
(d) There are no agreements for the extension of the time for
assessment of any Taxes relating to the Seller. There are no Liens for any Tax
on the assets of the Seller with the exception of any real estate or similar Tax
which may be a Lien, but not yet due and payable.
(e) No claim has been made by any Tax Authority in a
jurisdiction where the Seller does not file Returns that the Seller is or may be
subject to taxation by that jurisdiction.
(f) None of the assets of the Seller constitutes tax-exempt
bond financed property or tax-exempt use property within the meaning of Section
168 of the Code, and none of such assets is subject to a lease, safe-harbor
lease, or other arrangement as a result of which the Seller is not treated as
the owner for federal income tax purposes.
(g) The Seller has not made, nor will it become obligated to
make, any "excess parachute payment" as defined in Section 280G of the Code
(without regard to subsection (b)(4) thereof).
(h) Except as set forth on Schedule 5.7(h), the Seller has not
undergone a change in accounting method that currently requires, or will
require, an adjustment to taxable income under Section 481 or any other
provisions of the Code that relate to the Business, the Acquired Assets or the
Assumed Liabilities.
5.8 Real and Personal Property; Absence of Encumbrances.
(a) The Seller has good and insurable title to or, in the case
of leases and licenses, valid and subsisting leasehold interests or licenses in,
all of the Acquired Assets free and clear of any and all Liens, other than
Permitted Liens and except as set forth on Schedule 5.8(a). The Acquired Assets,
together with the assets under the Transition Agreement, constitute all of the
assets, tangible and intangible, used by the Seller or Harvard, as the case may
be, to conduct the Business as it is presently conducted.
(b) The Fixed Assets being sold, transferred, conveyed and
delivered to Buyer pursuant to this agreement include (i) all of the Fixed
Assets which are used in the Business as it is presently conducted, (ii) all of
the Fixed Assets reflected on the March 28, 1999 balance sheet of Seller, as
adjusted to reflect (A) purchases by the Seller of additional Fixed Assets in
the ordinary course of business subsequent to March 28, 1999 and (B)
dispositions by the Seller of Fixed Assets in the ordinary course of business
subsequent to March 28, 1999, and (iii) all of the Fixed Assets which will be
included in the computation of Adjusted Book Value as of the Closing Date in
accordance with Section 3.3. All the Fixed Assets in the aggregate used in
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the Business as presently conducted by the Harvard Parties are in reasonably
good operating condition and in reasonably good condition of maintenance and
repair, normal wear and tear excepted.
(c) Schedule 5.8(c) lists all the Seller Property and all
interests therein. The Seller or Harvard, as the case may be and as indicated on
Schedule 5.8(c), is the sole legal and beneficial owner of good and insurable
fee simple absolute title to the Seller Property listed on Schedule 5.8(c) that
is identified as being owned by such party, subject only to Permitted Liens. The
Seller or Harvard, as the case may be and as indicated on Schedule 5.8(c), has a
valid and subsisting leasehold interest in the Seller Property listed on
Schedule 5.8(c) that is identified as being leased by such party, subject only
to Permitted Liens, and true, correct and complete copies of each lease (and all
amendments, supplements, extensions and other modifications thereto) granting
such leasehold interests have been furnished to Buyer (the "Seller Leases").
Neither the Seller nor Harvard has leased, licensed or entered into any other
occupancy agreement (written or oral) with respect to its interests in the
Seller Property, except as set forth on Schedule 5.8(c) ("Tenant Leases"), and
true, correct and complete copies of all Tenant Leases have been delivered to
Buyer. Except for and as disclosed by the Permitted Liens, the Seller Leases and
the Tenant Leases, and except as otherwise disclosed on Schedule 5.11, neither
the Seller nor Harvard have entered into any outstanding contracts (except with
Buyer) for the sale, mortgage, pledge, hypothecation, encumbrance, assignment,
sublease, lease or other transfer of all or any part of any of any Seller
Property or any of the Seller's or Harvard's rights therein (including, without
limitation, any development rights), and no Person (other than the Seller and
Harvard) has any possessory interest (whether by pursuant to lease, sublease,
rental, license, concession or other agreement written or oral now or hereafter
in effect) or any right or option to acquire or develop, right of first refusal,
right of first offer or purchase option with respect to, the Seller Property,
any part thereof or any interest therein. The Harvard Parties have not been
notified that any Seller Lease or Tenant Lease is not in full force and effect.
Neither the Seller nor Harvard, as the case may be, is, and to the knowledge of
the Harvard Parties, no other party under the Seller Leases or the Tenant Leases
is, in material default thereunder, and no event has occurred that, with the
giving or notice or the passage of time, or both, would constitute a material
default by the Seller or Harvard or, to the knowledge of the Harvard Parties, by
any other party under any Seller Lease or Tenant Lease. Neither the Seller nor
Harvard has received any notice terminating any Seller Lease or Tenant Lease
prior to the scheduled termination or expiration date thereof. To the knowledge
of the Harvard Parties, the Seller Property, and the use, operation and
maintenance thereof by the Harvard Parties in the Business as presently
conducted, comply (i) in all material respects with the terms and provisions of
all of the material covenants, conditions, restrictions, rights-of-way and
easements constituting one or more Permitted Liens and the terms and provisions
of the Seller Leases and (ii) in all material respects with all applicable legal
requirements including those relating to the environment, health and safety,
land use and zoning. All the Seller Property in the aggregate is in reasonably
good condition for the continued operation of the Business as presently
conducted by the Seller.
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5.9 Intellectual Property and Proprietary Assets.
(a) Schedule 5.9 sets forth a list and brief description of
all Intellectual Property that is presently being used in the Business, all
applications for registration and registrations for Intellectual Property, and
all licenses, contracts, rights and arrangements with respect to Intellectual
Property. Except as set forth in Schedule 5.9, no rights or licenses have been
granted with respect to any Intellectual Property, and, except as set forth in
Schedule 5.9, none of the Intellectual Property is materially necessary to
conduct the Business as now conducted by the Harvard Parties.
(b) Except as set forth in Schedule 5.9, to the knowledge of
the Harvard Parties the Seller owns or possesses the right to use all
Proprietary Assets used in the conduct of the Business as now conducted, without
any conflict with or infringement of the rights of others. Except as set forth
in Schedule 5.9, the Seller has not received notice of any claimed conflict with
respect to any of the foregoing.
(c) Neither the Seller nor Harvard has knowledge of any
default or alleged default or state of facts which with notice or lapse of time
or both would constitute a default on the part of any party in the performance
under any licenses, contracts, agreements or arrangements referred to in
Schedule 5.9.
5.10 Litigation. Except as set forth on Schedule 5.10, there is no
claim, litigation, proceeding or governmental investigation pending or, to the
knowledge of the Harvard Parties, threatened, against the Seller, the Business,
any of the Acquired Assets or any of the Seller's officers, directors or
employees with respect to the Business.
5.11 List of Material Contracts, etc.. Schedule 5.11 lists (a) all
the Seller's, and Harvard's, as appropriate, commitments and other agreements
for the purchase, manufacture or sale of any products, materials, supplies or
equipment, including, without limitation, purchase orders, other than
commitments and other agreements that were entered into in the ordinary course
of the Business and involve an expenditure of less than $200,000 for any one
commitment or two or more related commitments; (b) all notes and agreements
relating to any indebtedness of the Seller, any guaranties by the Seller of the
indebtedness of other persons, and any off-balance sheet financing or interest
rate or currency swaps, or derivative agreements of the Seller other than (i)
indebtedness of the Harvard Parties which is to be repaid on the Closing Date
from the proceeds of the Base Purchase Price and (ii) indebtedness of the
Harvard Parties not secured by any of the Seller Property incurred in the
ordinary course of business not in excess of $200,000; (c) all leases or other
rental agreements under which the Seller is either lessor or lessee that call
for annual lease payments in excess of $200,000 individually or are otherwise
material to the Business; (d) all the Seller's employment and consulting
agreements that provide for compensation in excess of $200,000 a year and all
agreements that provide for severance or similar benefits; (e) all the Seller's
collective bargaining agreements; (f) all agreements (written or oral) between
the Seller and Harvard or any affiliate of Harvard; (g) all commitments and
other agreements limiting the Seller's freedom to engage in any line of business
or to compete with any other person; (h) all commitments and other agreements
for the sale, lease, license,
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rental or disclosure of any of the Seller's lists or records, including its
customer list; (i) all agreements for the joint development of products sold by
the Seller; and (j) all other agreements, commitments and understandings
(written or oral) that require payment by or to the Seller of more than $200,000
and cannot be terminated by the Seller on less than 60 days notice without
liability (collectively, the "Material Contracts"). True and complete copies of
all the Material Contracts have been delivered to the Buyer.
5.12 Status of Material Contracts. The Harvard Parties have not been
notified that any Material Contract is not presently in full force and effect.
The Seller is not in default and, to the knowledge of the Harvard Parties, no
other party is in default under any provision of any Material Contract, and no
condition exists that, with notice or lapse of time or both, would constitute a
default by the Seller or, to the knowledge of the Harvard Parties, any other
party to any Material Contract. No party to any Material Contract has made,
asserted, or to the Harvard Parties' knowledge, has any defense, set-off or
counterclaim under any Material Contract or has exercised any option granted to
it to cancel or terminate any Material Contract, to shorten the term of any
Material Contract or to renew or extend the term of any Material Contract, and
the Harvard Parties have not received any notice to that effect. The Seller is
engaged in no material dispute with any of its suppliers or customers. Except as
set forth on Schedule 5.12, all the Material Contracts have been entered into on
an arm's-length basis.
5.13 Inventory. Schedule 5.13 lists the Seller's Inventories as at
August 29, 1999. Except as reserved for on the March 28 Financial Statements,
the Seller's inventory in the aggregate is in good and marketable condition, and
is saleable in the normal course of the Business as currently conducted.
5.14 Accounts Receivable. Schedule 5.14 is an aged list of the
Seller's accounts receivable as at August 29, 1999. The Seller's accounts
receivable (including, without limitation, the accounts receivable of Seller
included in the computation of Adjusted Book Value as of the Closing Date) arose
in the ordinary course of business for goods and services delivered or rendered.
Except as noted in the Referenced Footnotes or with respect to any accounts
receivable due from Hutchinson S.A. and payable to the JV, the Harvard Parties
have no reason to believe that the accounts receivable of Seller (including,
without limitation, the accounts receivable of Seller included in the
computation of Adjusted Book Value as of the Closing Date) are not good and
collectable in the ordinary course of the business or subject to counterclaims
or set-offs.
5.15 Environmental Matters. All references in this Section 5.15 to
the Seller shall include any subsidiaries thereto, and any person or entity the
liabilities of which, pursuant to the Environmental Laws, contractually, by
common law, by operation of law or otherwise, the Seller may have succeeded to.
For the purposes of this agreement, the following terms shall have
the respective meanings set forth below:
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(i "Environment" means any surface or subsurface physical
medium or natural resource, including air, land, soil, surface waters, ground
waters, stream and river sediments, biota and any indoor area, surface or
physical medium.
(ii "Environmental Laws" means any federal, state, local or
common law, rule, regulation, ordinance, code, order or judgment (including any
written judicial or administrative interpretations, guidances, directives,
policy statements or opinions) relating to the injury to, or the pollution or
protection of human health and safety or the Environment.
(iii "Environmental Liabilities" means any claims, judgments,
damages (including punitive damages), losses, penalties, fines, liabilities,
encumbrances, liens, violations, costs and expenses (including attorneys' and
consultants' fees) of investigation, remediation, monitoring or defense of any
matter relating to human health, safety or the Environment of whatever kind of
nature by any party, entity or authority, (A) which are incurred as a result of
(i) the existence of Hazardous Substances in, on, under, at or emanating from
any real property presently or formerly owned, operated or managed by the
Seller, (ii) the offsite transportation, treatment, storage or disposal of
Hazardous Substances generated by the Seller, or (iii) the violation of any
Environmental Laws or (B) which arise under the Environmental Laws.
(iv "Hazardous Substances" means any petroleum, petroleum
products, petroleum-derived substances, radioactive materials, hazardous wastes,
polychlorinated biphenyls, lead-based paint, radon, urea formaldehyde, asbestos
or any materials containing asbestos, pesticides and any chemicals, materials,
wastes or substances regulated under any Environmental Law, or defined as or
included in the definition of "hazardous substances," "hazardous wastes,"
"extremely hazardous substances," "hazardous materials," "hazardous
constituents," "toxic substances," "pollutants," "contaminants," or any similar
denomination intended to classify or regulate any chemicals, materials or
substances by reason of their toxicity, carcinogenicity, ignitability,
corrosivity or reactivity or other characteristics under any Environmental Law.
Except as set forth in Schedule 5.15:
(a all of the current operations of the Acquired Assets, the
Business and the Seller's presently owned, leased or operated real property
(collectively, the "Present Real Property") comply, and at all times have
materially complied with applicable Environmental Laws, and, to the Harvard
Parties' knowledge, the real property formerly owned, leased or operated by
Seller in connection with or related to the Acquired Assets or the Business
during Seller's ownership, lease or operation (collectively, the "Former Real
Property") complied with applicable Environmental Laws. Neither the Seller, nor,
to the Harvard Parties' knowledge, any other person or entity, has engaged in,
authorized or allowed any operations or activities upon any of the Present Real
Property for the purpose of or in any way involving the handling, manufacture,
treatment, processing, storage, use, generation, release, discharge, spilling,
emission, dumping, transporting or disposal of any Hazardous Substances at, on,
under or from the Present Real Property, except in material compliance with all
applicable Environmental Laws; to the Harvard Parties' knowledge, neither the
Seller nor any other person or entity has
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engaged in, authorized or allowed any operations or activities upon any of the
Former Real Property for the purpose of or in any way involving the handling,
manufacture, treatment, processing, storage, use, generation, release,
discharge, spilling, emission, dumping, transporting or disposal of any
Hazardous Substances at, on, under or from the Former Real Property, except in
material compliance with all applicable Environmental Laws;
(b neither the Acquired Assets nor the Present Real Property contain
any Hazardous Substances in, on, over, under or at them, in concentrations which
would violate any applicable Environmental Laws;
(c none of the Present Real Property is listed or proposed for
listing on the National Priorities List (the "NPL") pursuant to the
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"),
42 U.S.C. ss. 9601 et seq., or on any similar inventory of sites requiring
investigation or remediation maintained by any state or locality. Neither the
Seller nor Harvard has received any notice, whether oral or written, from any
governmental entity or third party of any actual or threatened Environmental
Liabilities with respect to or arising out of the Present Real Property or, to
the Harvard Parties' knowledge, the Former Real Property, the Acquired Assets or
the Business;
(d there are no underground storage tanks in, under or at any
Present Real Property and, to the Harvard Parties' knowledge, nor were there any
underground storage tanks in, under or at any Former Real Property at the time
Seller disposed of or ceased leasing or operating any such Former Real Property;
(e there are no conditions existing at any Present Real Property, or
with respect to the Acquired Assets or Business, that are reasonably likely to
require remedial or corrective action, removal, monitoring or closure pursuant
to the Environmental Laws and, to the Harvard Parties' knowledge, nor were there
any such conditions existing at the Former Real Property at the time Seller
disposed of or ceased leasing or operating any such Former Real Property;
(f the Seller has or has applied for all the permits, licenses,
authorizations and approvals necessary for the conduct of its Business and for
the operations on, in or at the Present Real Property, which are required under
applicable Environmental Laws (the "Environmental Permits"); Schedule 5.15 sets
forth all such permits, licenses, authorizations and approvals that Seller has
and for which it has applied. The Seller is in compliance with the material
terms and conditions of all such Environmental Permits, and, to the Harvard
Parties' knowledge, the Environmental Permits are transferrable or assignable to
Buyer to the extent permitted under Environmental Laws, and to the Harvard
Parties' knowledge, no reason exists why the Buyer would not be capable of the
continued operation of the Business as currently operated in compliance with the
terms and conditions of the Environmental Permits and the applicable
Environmental Laws;
(g the Seller and Harvard have provided to Buyer or its
representatives full and complete copies of all environmental reports,
assessments, audits, studies, investigations,
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data, Environmental Permits and other material written environmental information
in its custody, possession or control concerning the Acquired Assets, the
Business and the Present Real Property, and any Environmental Liabilities
related to the Acquired Assets, the Business and the Present Real Property; and
(h To the Harvard Parties' knowledge, none of the items set forth in
Schedule 5.15, individually or in the aggregate, is reasonably likely to result
in a material adverse effect on the Seller, the Business, the Present Real
Property, the Former Real Property or the Acquired Assets.
5.16 Permits. To the Harvard Parties knowledge, the Seller holds all
the Permits, excluding the Environmental Permits which are exclusively addressed
in Section 5.15, listed in Schedule 5.16 which, except as set forth in Schedule
5.16, are valid and unimpaired and constitute all of the Permits required for
the ownership or occupancy of the Acquired Assets and the operation of the
Business.
5.17 Employees.
(a Schedule 5.17(a) lists the names, plant or office
locations, compensation and dates of hire of all full- and part-time employees
of the Seller as of August 31, 1999. Except as set forth on Schedule 5.17(a), no
employee is owed any wages, benefits or other compensation for past services,
other than wages, benefits and compensation accrued in the ordinary course of
business during the current pay period and accrued vacation. To the Harvard
Parties' knowledge, the Seller has materially complied with applicable wage and
hour, equal employment, safety and other legal requirements relating to its
employees and has not engaged in any unfair labor practice.
(b Except as disclosed on Schedule 5.17(b), no employee or
former employee of the Seller is entitled to any severance payment or similar
payment, either by law or by agreement, upon the termination of his or her
employment. None of Andrew Shanks, Brian Benninger, or Robert McDonald, nor any
other key employee of the Seller has notified any senior vice president other
than Brian Benninger (or other officer of the Harvard Parties of a higher rank
than a senior vice president) of either of the Harvard Parties that he or she is
terminating his or her employment.
(c No employee of the Seller is represented by a union or
other collective bargaining agent, and there are no collective bargaining or
other labor agreements with respect to any of the Seller's employees. Except as
disclosed on Schedule 5.17(c), neither the Seller nor Harvard knows of any
efforts within the last three years to attempt to organize the Seller's
employees, and no strike or labor dispute involving the Seller has occurred
during the last three years or, to the knowledge of the Seller and Harvard, is
threatened.
5.18 Employee Benefit Plans.
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(a Schedule 5.18(a) lists all Seller Plans. With respect to
each the Seller Plan, as applicable, true and complete (i) copies of each
written Seller Plan (including all amendments thereto), (ii) written
descriptions of each oral Seller Plan, (iii) copies of related trust or funding
agreements, (iv) summary plan descriptions, (v) summaries of material
modifications, (vi) copies of the most recent actuarial valuation reports,
annual reports and financial statements and (vii) each material communication
received by any Harvard Party or any ERISA Affiliate from the IRS, DOL, PBGC or
any other governmental authority including, without limitation, the most recent
determination letter received from the IRS for each Seller Plan intended to
qualify under Code Section 401(a) have been delivered to the Buyer.
(b No Seller Plan is (i) a "multiemployer plan," as defined in
Section 3(37) of ERISA, or (ii) except as disclosed on Schedule 5.18(b)(i),
otherwise subject to Title IV of ERISA. With respect to any Seller Plan subject
to Section 412 of the Code, no "accumulated funding deficiency" (within the
meaning of Section 302 of ERISA and Section 412 of the Code) has been incurred.
Except as disclosed on Schedule 5.18(b)(ii), no reportable event within the
meaning of Section 4043(c) of ERISA has occurred or could reasonably be expected
to occur, and the consummation of the transaction contemplated by this agreement
will not result in a reportable event. With respect to each Employee Benefit
Plan subject to Title IV of ERISA or Section 412 maintained or contributed to by
any Harvard Party or any ERISA Affiliate, (i) there is no actual or contingent
liability of the Seller or otherwise relating to the Business under Title IV of
ERISA or Section 412 of the Code to such Employee Benefit Plan or the PBGC
(other than the payment of premiums to the PBGC) and (ii) the assets relating to
the Business have not been subject to a lien under ERISA or the Code.
(c With respect to each of the Seller Plans: (i) each Seller
Plan intended to qualify under Section 401(a) of the Code is qualified and has
received a determination letter from the IRS to the effect that the Seller Plan
is qualified under Section 401 of the Code and any trust maintained pursuant
thereto is exempt from federal income taxation under Section 501 of the Code and
nothing has occurred or could reasonably be expected to occur through the
Closing Date that caused or could cause the loss of such qualification or
exemption or the imposition of any penalty or tax liability; (ii) the Seller
Plan complies in all material respects and has been maintained and operated in
all material respects in accordance with its terms and applicable law,
including, without limitation, ERISA and the Code (including rules and
regulations thereunder) and other applicable federal and state laws; (iii) no
claim, lawsuit, arbitration or other action has been threatened, asserted,
instituted, or, to the knowledge of any Harvard Party, is anticipated against
the Seller Plans (other than non-material routine claims for benefits, and
appeals of such claims), any trustee or fiduciaries thereof, any Harvard Party,
any ERISA Affiliate, any director, officer, or employee thereof, or any of the
assets of any trust of the Seller Plan; (iv) no Seller Plan is or expected to be
under audit or investigation by the IRS, DOL, PBGC or any other governmental
authority and no such completed audit, if any, has resulted in the imposition of
any tax or penalty; (v) no "prohibited transaction," within the meaning of
Section 4975 of the Code and Section 406 of ERISA, has occurred or could
reasonably be expected to occur with respect to the Seller Plan (and the
consummation of the transactions contemplated by this agreement will not
constitute or directly or indirectly result in such a "prohibited transaction);"
and (vi) all payments required by any Seller Plan, any collective
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bargaining agreement or other agreement, or by law (including, without
limitation, all contributions, insurance premiums or intercompany charges) with
respect to all periods through the Closing Date have been made prior to the
Closing Date (on a pro rata basis where such payments are otherwise
discretionary at year end) or provided by the Harvard Parties as applicable, by
full accruals as if all targets required by such Seller Plan had been or will be
met at maximum levels on its financial statements.
(d Except as disclosed on Schedule 5.18(d)(i), the
consummation of the transactions contemplated by this agreement will not give
rise to any liability, including, without limitation, liability for severance
pay, unemployment compensation, termination pay or withdrawal liability, or
accelerate the time of payment or vesting or increase the amount of compensation
or benefits due to any employee, director or stockholder of any Harvard Party
(whether current, former or retired) or their beneficiaries solely by reason of
such transactions or by reason of a termination following such transactions.
Except as disclosed on Schedule 5.18(d)(ii), no Harvard Party or any ERISA
Affiliate maintains, contributes to, or in any way provides for any benefits of
any kind whatsoever (other than under Section 4980B of the Code, the Federal
Social Security Act, or a plan qualified under Section 401(a) of the Code) to
any current or future retiree or terminee. No Harvard Party, any ERISA Affiliate
or any officer or employee thereof, has made any promises or commitments,
whether legally binding or not, to create any additional plan, agreement or
arrangement, or to modify or change any existing Seller Plan.
5.19 Insurance. The Harvard Parties maintain policies of fire and
extended coverage and casualty, liability and other forms of insurance with
respect to the Business in such amounts and against such risks and losses as are
customary for comparably sized companies engaged in a business similar to the
Business. Schedule 5.19 lists all the insurance policies maintained by the
Harvard Parties with respect to the Business, indicating the type of coverage,
name of insured, the insurer, the premium, the expiration date of each policy
and the amount of coverage. All such policies (a) are with insurance companies
reasonably believed by the Harvard Parties to be financially sound and reputable
and are in full force and effect; (b) are sufficient for compliance in all
material respects with all requirements of law and of all applicable agreements;
and (c) are valid, outstanding and enforceable policies. A complete and correct
schedule of such policies have been furnished to the Buyer.
5.20 Banks; Power of Attorney. Schedule 5.20 sets forth the names
and locations of all banks, trust companies, savings and loan associations and
other financial institutions at which the Seller maintains safe deposit boxes or
accounts of any nature. No person or entity holds any general or special power
of attorney from the Seller with respect to such safe deposit boxes and
accounts.
5.21 Books and Records. The books and records of the Seller are
complete and correct in all material respects and have been generally maintained
in accordance with good business practices. The Seller's minute books, as
previously exhibited to the Buyer, contain complete and accurate records of all
meetings and accurately reflect all other corporate action of the shareholders
and board of directors of the Seller.
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5.22 Restrictions. Neither of the Harvard Parties is a party to any
non-competition or similar agreement that in any way restricts the operation of
the Business.
5.23 Transactions with Affiliates. Except for ordinary dealings with
its employees and except as disclosed in Schedule 5.23, since September 30,
1997, the Seller has had no direct or indirect dealings with any shareholder of
the Seller, any key employee of the Seller or any affiliate, associate or
relative of any shareholder or of any key employee of the Seller (each, an
"Affiliate"). Except for employment arrangements with its employees and except
as disclosed in Schedule 5.23, the Seller has no obligation to or claim against
any Affiliate and, to the Harvard Parties' knowledge, no such person or entity
has any obligation to or claim against the Seller. No products, services or
benefits have been provided to the Seller by any Affiliate without a
corresponding charge equal to the fair market value of such products, services
or benefits. To the Harvard Parties' knowledge, no Affiliate has any direct or
indirect interest of any kind in any business or entity which is competitive
with the Seller.
5.24 Year 2000 Compliance. Schedule 5.24 sets forth a true and
complete summary of the actions taken by the Harvard Parties to address the Year
2000 issue described in the next succeeding sentence. As a result of many
computer programs and imbedded chips being written using two digits rather than
four to define the applicable year, many of the Harvard Parties' computer
programs that have date-sensitive software may recognize a date using "00" as
the year 1900 rather than the year 2000 (the "Year 2000 Issue"). The disclosure
set forth in Schedule 5.24 applies to the Seller as a whole.
The Harvard Parties have surveyed third parties whose failure to
address the Year 2000 Issue would be materially or significantly adverse to the
Business. Although all such third parties have not yet responded to such
surveys, based upon the responses received to date, the Harvard Parties do not
currently foresee any significant interruptions of the Business due to the Year
2000 Issue.
5.25 Product Warranties. Except as set forth on Schedule 5.25, there
is no express warranty, service or repair policy applicable to any product sold
by the Seller and there are no claims or suits pending or, to the Harvard
Parties' knowledge, threatened concerning any products of the Seller. There have
been no product recalls since October 1, 1996. Since October 1, 1996, product
warranty claims made by customers to the Seller have averaged not more than
$20,000 per month.
5.26 Finders. Except as set forth on Schedule 5.26, none of the
Seller, Harvard or any of their respective affiliates or any of their respective
directors or officers has taken any action that, directly or indirectly, would
obligate Buyer or any of its affiliates to anyone acting as broker, finder,
financial advisor or in any similar capacity in connection with this agreement
or any of the transactions contemplated hereby.
5.27 Backlog. The Seller has previously delivered to Buyer a
complete and accurate list of outstanding and unfulfilled orders that have been
placed with the Seller with
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respect to the Business (the "Backlog List") as of the close of business on the
day prior to the date hereof, which the parties have initialed. The Seller shall
also deliver a complete and accurate updated Backlog List at the Closing. The
Seller's backlog of orders for the products of the Business, as set forth on
such Backlog List and on the updated Backlog List to be delivered at the
Closing, is and shall be comprised of bona fide orders from existing customers.
Except as set forth on Schedule 5.27, the Seller has no reason to believe any
such orders will be subject to cancellation, deferral or renegotiation except to
an extent consistent with historical experience over the past three fiscal
years.
5.28 Customers and Suppliers.
(a During Seller's last three fiscal years and for the period
from the end of the last fiscal year through March 31, 1999, the General Motors
Corporation has accounted for over 95% of the Seller's total sales.
(b Schedule 5.28 hereto sets forth a list of the Seller's ten
(10) largest current suppliers showing the approximate total purchases in
dollars from each supplier that has sold goods or services to Seller in excess
of $1,240,000 from the end of the last fiscal year through March 31, 1999.
Detailed copies of invoices have been made available by the Seller to the Buyer.
(c Except as set forth on Schedule 5.28, there has not been
any material adverse change and there are no facts known to the Harvard Parties
which may reasonably be expected to indicate that any material adverse change
may occur in the business relationship of the Seller with any customer or
supplier named on Schedule 5.28.
5.29 Bankruptcy. A true and complete copy of the Harvard Parties'
First Amended and Modified Consolidated Plan Under Chapter 11 of the Bankruptcy
Code dated August 19, 1998 (the "Plan") and a true and complete copy of the
order entered confirming the Plan dated October 15, 1998 (the "Confirmation
Order") have been provided to the Buyer. Except as set forth in the Confirmation
Order, the Plan has not been amended or modified and the Confirmation Order is a
Final Order ( as such term is defined in the Plan) and has not been vacated,
amended or modified, except as modified by further orders of the Bankruptcy
Court permitting creditors to prosecute and/or liquidate unliquidated
pre-petition claims. The Effective Date (as such term is defined under the Plan)
has occurred, and except as set forth on Schedule 5.29, all conditions to
consummation of the Plan (as set forth in Section 12.2 of the Plan) have been
satisfied or waived. Distributions under the Plan have commenced and the Plan
has been substantially consummated. The Harvard Parties have received a
discharge pursuant to Section 1141 of the Bankruptcy Code. The Harvard Parties
have cured all defaults required under Section 365 of the Bankruptcy Code
including, without limitation, payment defaults under all unexpired leases and
executory contracts (i) assumed by the Harvard Parties in the Harvard Parties
chapter 11 proceeding referred to in the Plan and (ii) which are Assumed
Liabilities hereunder.
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5.30 Disclosure. No representation, warranty or other statement made
by the Seller or Harvard in this agreement or in any other of the Transaction
Documents contains or will contain an untrue statement of a material fact, or
omits or will omit to state a material fact necessary to make the statements
contained herein or therein not misleading.
5.31 Schedules and Exhibits are Incorporated. All Schedules and
Exhibits attached hereto are incorporated by reference, and all blanks in such
Exhibits, if any, will be filled in as required in order to consummate the
transactions contemplated herein and in accordance with this agreement. Any item
disclosed in good faith on any Schedule attached hereto shall be deemed
disclosed on all Schedules hereto.
6. Representations and Warranties of the Buyer.
The Buyer hereby represents and warrants to the Seller as follows:
6.1 Organization and Good Standing. The Buyer is a corporation duly
organized, validly existing and in good standing under the laws of Delaware.
6.2 Authority; Consents; and No Conflicts.
(a The Buyer has the full legal right, power and authority to
enter into and perform the Transaction Documents to be executed and delivered by
the Buyer in connection with this agreement. The execution, delivery and
performance by the Buyer of the Transaction Documents have been duly authorized
by all necessary corporate action of the Buyer and the Transaction Documents are
(or when executed and delivered will be) valid and binding obligations of the
Buyer enforceable against the Buyer in accordance with their respective terms,
except as may be limited by bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights in general and subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(b Except as set forth on Schedule 6.2(b), no consent,
approval, authorization or waiver is required from any governmental authority or
any other third party, in connection with the execution, delivery and
performance of any of the Transaction Documents by the Buyer, and such
execution, delivery and performance will not (i) conflict with or result in a
breach of the certificate of incorporation or by-laws of the Buyer, (ii)
violate, result in a breach of or conflict with, or require any notice, filing
or consent under, any statute, rule, regulation or other provision of law or
regulation or any order, judgment, or other direction of a court or other
tribunal or any other governmental requirement, permit, registration, license or
authorization applicable to the Buyer, (iii) violate, conflict with, result in a
breach of, constitute a default under, result in the acceleration of, create in
any party the right to accelerate, terminate, modify, or cancel, or require any
notice under any material agreement, instrument or writing of any nature to
which the Buyer is a party or by which it is bound or to which any of its assets
is subject or (iv) result in the creation of a Lien on any of the Buyer's
assets.
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6.3 Finders. Except as set forth on Schedule 6.3, neither Buyer nor
any of its affiliates or any of its directors or officers has taken any action
that, directly or indirectly, would obligate the Harvard Parties or any of their
respective affiliates to anyone acting as broker, finder, financial advisor or
in any similar capacity in connection with this agreement or any of the
transactions contemplated hereby.
7. Further Agreements of the Parties.
7.1 Expenses. Except as otherwise expressly set forth in this
agreement, each party shall bear its own expenses in connection with this
agreement and in connection with all obligations required to be performed by it
under this agreement.
7.2 Publicity. Until the Closing Date, except as required by law,
based on advice of counsel or as mutually agreed by the parties hereto, there
shall be no press release or other public statement regarding this agreement or
the transactions contemplated by this agreement. The parties to this agreement
shall hold this agreement in the strictest confidence and shall not disclose any
information about the transactions contemplated by this agreement except to
their employees, officers, directors, representatives, lenders and other
financial or governmental institutions that have a need to know in connection
with the transactions contemplated hereby, and the Seller, with the consent of
Buyer (such consent not to be unreasonably withheld), may disclose the existence
of this agreement to its principal customers and suppliers.
7.3 Hart-Scott-Rodino. The Harvard Parties, on the one hand, and the
Buyer, on the other hand, have filed and will continue to file all notification
and report forms required for the transactions contemplated hereby and any
documentary information requested in connection therewith pursuant to the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act"). All such
forms and information are and will be in substantial compliance with the
requirements of the HSR Act. Each of the parties hereto shall use its best
efforts to obtain any clearance required under the HSR Act for the transactions
contemplated hereby.
7.4 Escrow Arrangements.
(a The $6,200,000.00 (six million two hundred thousand
dollars) payment to the Escrow Agent described in Section 3.1(b) shall be held
in escrow pursuant to the Escrow Agreement and shall be used to establish the
Purchase Price Escrow Fund and the Indemnity Escrow Fund, respectively, and to
fund any amounts due and payable to the Buyer pursuant to Section 3.3 and any
Section 12.1 Obligations, respectively (collectively, the "Escrow Deductions").
The Buyer and the Harvard Parties agree to the terms of the Escrow Agreement as
if they were fully written herein.
(b Both the Seller and the Buyer will respond promptly to
requests to approve statements delivered by the Buyer or the Seller to the
Escrow Agent pursuant to the Escrow Agreement which are consistent with the
terms of this agreement. In the event of an objection by the Seller or the Buyer
to a withdrawal or proposed withdrawal which is finally
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resolved against the Seller or the Buyer, the Harvard Parties or the Buyer shall
pay to the Buyer or the Seller, as applicable, upon resolution of such dispute,
an amount equal to annual interest at the base rate of Bank of America, N.A.
plus two percent on any amount requested and unpaid pending resolution of the
objection from the date which is 10 days after the date on which the statement
requesting such withdrawal was delivered to the Seller or the Buyer, as
applicable, until payment is made.
(c Interest on any amount held by the Escrow Agent under the
Escrow Agreement shall be the sole property of the Seller and shall not be
available to pay claims under this Agreement, except to the extent that the Fund
has incurred any losses as a result of any investment, and shall be distributed
quarterly to the Seller. The Buyer and the Seller acknowledge and agree that for
federal and state income tax purposes, the amount earned on any investment of
the Fund, or portion thereof, is for the benefit of the Seller and shall be
received by Escrow Agent as the nominee of the Seller and that such amount shall
be the income of the Seller for federal and state income tax purposes. The
Escrow Agent shall be directed to file all reports and returns required to be
filed by the Escrow Agent (including IRS Form 1099) with the appropriate taxing
authorities reflecting that the income earned on the Fund is the income of the
Seller. The Seller shall provide to the Escrow Agent such information regarding
the Seller as may be necessary to enable the Escrow Agent to make any required
tax filings in connection with the Escrow Agreement.
(d Within ten (10) business days after the final determination
of the Adjusted Book Value as of the Closing Date in accordance with Section
3.3(a), the Escrow Agent shall pay from the Purchase Price Escrow Fund to the
Seller or the Buyer, as the case may be, the amount(s) specified in Section
3.3(c).
(e On the first anniversary of the Closing Date, the Escrow
Agent shall pay to the Seller the lesser of (A) $2,200,000.00 (two million two
hundred thousand dollars) and (B) an amount equal to $3,700,000.00 (three
million seven hundred thousand dollars) less the sum of (i) any Escrow Deduction
previously paid to the Buyer or then due and payable to the Buyer and (ii) any
additional amounts claimed by the Buyer and disputed by the Seller in accordance
with the Escrow Agreement or any additional amounts that the Buyer stated it may
incur due to any Section 12.1 Obligation, which amounts shall be held by the
Escrow Agent until due and payable, to either the Buyer or the Seller pursuant
to the terms of the Escrow Agreement.
(f On the second anniversary of the Closing Date, the Escrow
Agent shall pay to the Seller any amounts remaining in the Fund less an amount
equal to the sum of (i) any Escrow Deduction due and payable to the Buyer, and
(ii) any additional amounts claimed by the Buyer and disputed by the Seller in
accordance with the Escrow Agreement or any additional amounts that the Buyer
stated it may incur due to any Section 12.1 Obligation, which amounts shall be
held by the Escrow Agent until due and payable, to either the Buyer or the
Seller pursuant to the terms of the Escrow Agreement.
(g The Escrow Agent's fee, for its services under the Escrow
Agreement shall be paid 50% by the Buyer and 50% by the Harvard Parties.
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7.5 Employee Benefits.
(a Prior to the Closing Date, Buyer shall make an offer of
employment, effective as of the Closing Date, to all employees of the Business,
including, without limitation, all employees in active service, on short-term
disability or on approved leave of absence (each an "Affected Employee") and
excluding all employees of the Business on long-term disability. On and after
the Closing Date, Buyer shall have the right, but not any obligation, to employ
any additional employees of any Harvard Party whom it wishes to employ and who
wish to be employed by Buyer. The Harvard Parties consent to Buyer contacting
such employees with respect to the desire of such employees to enter the employ
of the Buyer. Affected Employees who affirmatively accept Buyer's offer of
employment and commence working for Buyer on the Closing Date are hereinafter
referred to as "Transferred Employees."
(b The Harvard Parties shall be responsible for all
obligations and liabilities relating to or arising under the group health plan
continuation coverage requirements of Section 4980B of the Code and Title I,
Subtitle B of ERISA ("COBRA") for employees of the Business and their
beneficiaries who experience a "qualifying event" (as defined under COBRA) at
any time on or prior to the Closing Date and the Buyer shall be responsible for
all COBRA obligations and liabilities for Transferred Employees and their
beneficiaries who experience a "qualifying event" (as defined under COBRA) after
the Closing Date, provided, however, that any such Transferred Employee and
beneficiary did not experience a qualifying event on or prior to the Closing
Date. The Harvard Parties shall remain responsible for any liabilities or
obligations for severance obligations relating to employees of the Business
terminated on or prior to the Closing Date and Affected Employees who are not
Transferred Employees and for severance obligations which may become due under
any and all Seller Plans. Buyer shall be responsible on and after the Closing
Date for benefits under the employee benefit plans established or maintained by
Buyer or any of its affiliates for the Transferred Employees and their
beneficiaries ("Buyer's Plans") with respect to service performed by such
Transferred Employees for the Buyer and its affiliates on and after the Closing
Date. Notwithstanding the foregoing, the Buyer shall cause Buyer's Plans that
are intended to be qualified under Section 401(a) of the Code to credit service
performed by the Transferred Employees for the Harvard Parties prior to the
Closing Date solely for vesting and eligibility (but not benefit accrual)
purposes to the extent that such service was recognized under each Seller Plan
intended to be qualified under Section 401(a) of the Code.
(c (i On the Closing Date or as soon as practicable thereafter
(but in no event later than fifteen (15) days after the Closing Date), the
Harvard Parties shall contribute to the Harvard Capital Accumulation Plan the
matching contribution and any other employer contribution relating to periods
prior to the Closing based on the amount or percentage that the Harvard Parties
are required to contribute to the Harvard Capital Accumulation Plan on behalf of
each Transferred Employee.
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(ii On the Closing Date or as soon as practicable
thereafter (but in no event later than thirty (30) days after the Closing Date),
the Harvard Parties shall cause the trustee of the Harvard Capital Accumulation
Plan to transfer to the trustee or funding agent of the retirement plan
established or maintained by Buyer or its affiliates that contains a cash or
deferred arrangement under Section 401(k) of the Code and designated by Buyer
("Buyer 401(k) Plan") for the benefit of the Transferred Employees, an amount,
in-kind equal to the total account balances of the Transferred Employees,
including the promissory notes evidencing any outstanding loans of the
Transferred Employees and actual investment earnings or losses through the date
of transfer, held under the Harvard Capital Accumulation Plan for the
Transferred Employees, except for amounts as to which withdrawal requests have
been duly submitted prior to such transfer and which the Harvard Parties shall
cause to be paid by the Harvard Capital Accumulation Plan to the Transferred
Employees in accordance with the Code and ERISA and the terms of the Harvard
Capital Accumulation Plan (the "Transferred Assets") except that Transferred
Assets shall not include any accounts of Transferred Employees that are subject
to the joint and several annuity rules under Section 417 of the Code. In no
event shall the Transferred Assets be less than the amount required under
Section 414(l) of the Code and the regulations thereunder. The Harvard Parties
and Buyer acknowledge that the transfer of the Transferred Assets shall be
accomplished in a manner designed to avoid any liquidation of the accounts of
the Transferred Employees and to transfer the investments in the Vanguard mutual
funds or Vanguard retirement savings trusts, in accordance with the elections of
the Transferred Employees, to the same Vanguard investments held under the Buyer
401(k) Plan.
(iii The Harvard Parties represent and warrant that,
with respect to the Harvard Capital Accumulation Plan: (i) no part of the
Transferred Assets was invested in employer securities (as defined in Section
407(d)(1) of ERISA) on or immediately prior to the date of transfer; (ii) no
after-tax accounts were maintained (or required to be maintained) for the
Transferred Employees on or at any time prior to the date of transfer; (iii) a
lump sum distribution is and has been the sole form of distribution available to
the Transferred Employees under the Harvard Capital Accumulation Plan; and (iv)
none of the provisions relating to the "prior plans" (as defined in the Harvard
Capital Accumulation Plan) apply to the Transferred Employees.
(iv The Harvard Parties and Buyer shall provide each
other with such records as they may reasonably request relating to their
respective obligations under this Agreement or the Harvard Capital Accumulation
Plan or the Buyer 401(k) Plan and cooperate with each other (and cause the
trustees of the Harvard Capital Accumulation Plan and the Buyer 401(k) Plan to
cooperate with each other) to effectuate the transfer to the Buyer 401(k) Plan
of the Transferred Assets.
(v The Harvard Parties agree to indemnify the Buyer
401(k) Plan and Buyer, their trustees and other fiduciaries and affiliates and
each of their stockholders, officers, directors, employees, agents, attorneys,
consultants, representatives, successors and assigns and save each such person
harmless against any and all liabilities, claims, damages, costs and expenses
(including any and all expenses incurred in investigating, preparing and
defending against litigation commenced or threatened or in settlement of any
such claim), relating to or
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incurred in defending against a claim that the amount of the Transferred Assets
is less than the amount required to be transferred or a claim arising out of the
Harvard Parties' breach of the representations and warranties set forth in
Section 5.18(c) of this agreement as they may apply to the Harvard Capital
Accumulation Plan, assuming, however, that such representations and warranties
apply up to and including the actual date the Transferred Assets are transferred
to the Buyer 401(k) Plan.
(d The Harvard Parties shall cause the Harvard Retirement Plan
(the "DB Plan") to credit service performed by the Transferred Employees for the
Buyer and its affiliates on and after the Closing Date solely for vesting and
eligibility (but not benefit accrual) purposes to the extent that such service
would have been credited under the DB Plan if such Transferred Employee
continued to be employed by any of the Harvard Parties on and after the Closing
Date. The Harvard Parties shall take all actions necessary to implement the
foregoing and the Buyer shall take all actions necessary to implement the last
sentence of Section 7.5(b) of this agreement. The parties hereto shall cooperate
with each other to effectuate the transactions under Section 7.5 hereof
including, without limitation, providing demographic and years of service
information.
(e Notwithstanding anything herein to the contrary, the
Harvard Parties shall take any and all actions necessary to comply with the
terms of that certain settlement agreement entered into by the Harvard Parties
and the PBGC, including, but not limited to any obligation to notify the PBGC of
the transactions contemplated by this agreement. The Harvard Parties have timely
notified the PBGC of the transactions contemplated by this Agreement. The
Harvard Parties shall promptly deliver to Buyer true and complete copies of all
correspondence or other communications with the PBGC and promptly notify Buyer
with regard to the status of its discussions with the PBGC.
(f As of the Closing Date, Buyer shall assume and maintain for
the benefit of employees of the Business (including, without limitation, retired
employees of the Business set forth in Schedule 7.5 hereto) located at the
Newfields, New Hampshire location, the Kingston-Warren Healthsource Insurance
Plan. Notwithstanding the foregoing, to the extent that Buyer provides similar
benefits under a different plan, nothing contained in this Section 7.5 shall
cause or result in the employees of the Business receiving, or being eligible to
receive, duplicate benefits.
7.6 Further Assurances. At any time and from time to time after the
date of this agreement, each party shall, without further consideration (except
as otherwise expressly provided herein), execute and deliver to the other party
such additional instruments and shall take such other action as the other may
reasonably request to carry out the transactions contemplated by this agreement
and to effect an orderly transition.
7.7 Cooperation. After the Closing, upon reasonable written notice,
the Buyer, on the one hand, and the Harvard Parties, on the other hand, shall
furnish or cause to be furnished to each other and their respective employees,
counsel, auditors and representatives access, during normal business hours, to
such information and assistance relating to the Business as is reasonably
necessary for financial reporting and accounting matters, the preparation and
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filing of any Tax return, reports or forms or the defense of any Tax claim or
assessment. Each party hereto shall reimburse the other(s) for reasonable
out-of-pocket costs and expenses incurred in assisting the other(s) pursuant to
this Section 7.7. None of the parties hereto shall be required by this Section
7.7 to take any action that would unreasonably interfere with the conduct of its
business or unreasonably disrupt its normal operations.
7.8 Payment of Outstanding Seller Checks. On a date which is not
less than three (3) business days before the Closing Date, Seller shall deliver
to the Buyer its good faith estimate of the total amount which represents each
outstanding check or draft drawn by Seller in respect of any of the Assumed
Liabilities which have not been presented for payment as of such date (the
"Outstanding Checks"). Seller shall use its best efforts to promptly update such
estimate on each day between the original delivery thereof and the Closing Date.
To the extent practicable and consistent with the customary payment practices of
the Seller, the Seller and the Buyer agree that the Seller shall seek to
structure payments in such a manner so as to minimize the number of Outstanding
Checks. Upon the request of the Buyer, the Seller shall present to Buyer
appropriate documentation evidencing that any Outstanding Check was issued in
respect of Assumed Liabilities. On the Closing Date, the Buyer shall pay to the
Seller an amount equal to the total Outstanding Checks as estimated by Seller in
good faith. Within twenty (20) days following the Closing, Seller and Buyer
shall confirm the amount of Outstanding Checks as estimated by Seller, and Buyer
shall have the right to dispute any item with respect to which Seller has
requested payment. The Seller shall pay and honor each item on the Outstanding
Check List.
7.9 Reimbursement of Harvard Parties. (a) If, as and to the extent
that the Harvard Parties shall actually pay directly or indirectly or caused to
be paid (including disbursements from cash collateral accounts) and discharge
any liability or obligation of the Buyer which is included in Assumed
Liabilities (including, without limitation, any payment by the Harvard Parties
in respect of workers compensation claims, retiree medical or active employee
medical claims which are included in Assumed Liabilities), the Harvard Parties
shall notify the Buyer in writing within sixty (60) days of making any such
payment. The Buyer shall promptly reimburse the Harvard Parties within ten (10)
business days with respect to any such payment upon presentation by the Harvard
Parties of appropriate documentation evidencing that such payment was made in
respect of Assumed Liabilities.
(b) The parties hereto shall use their respective best efforts
to establish a mutually acceptable methodology by which the Harvard Parties
shall first notify the Buyer in connection with the making of any payment of the
type referred to in Section 7.9(a) above with the intent that the Buyer shall
make any such payment directly.
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8. Covenants of the Seller.
8.1 Access to Properties and Information. Prior to the Closing, the
Seller shall permit the Buyer to make such additional investigation of the
business and properties of the Seller as it may reasonably request, and, upon
reasonable notice, shall give the Buyer and its counsel, accountants and other
representatives reasonable access, during normal business hours, to its
property, books, commitments, agreements, records, files, and, with the Seller's
prior consent (such consent not to be unreasonably withheld or delayed)
personnel, and shall furnish to the Buyer copies of documents and information
concerning the Seller as the Buyer or its representatives may reasonably
request.
8.2 Conduct of Business. Prior to the Closing, the Seller shall
comply with the following provisions:
(a) The Business shall be conducted only in the ordinary
course, substantially consistent with past practice.
(b) The Seller shall not declare, set aside or pay any
dividends or other distributions in respect of its capital stock.
(c) The Seller shall not make capital expenditures greater
than $100,000 without the consent of the Buyer, such consent not to be
unreasonably withheld.
(d) The Seller shall not without the consent of the Buyer
enter into any commitment, agreement or contract outside of the ordinary course
of business.
8.3 Restrictive Covenant. For a period of five years after the
Closing Date, neither of the Harvard Parties nor any of their respective
affiliates shall, directly or indirectly (whether as a shareholder, partner,
lender, consultant, agent, supplier, distributor or in any other relationship or
capacity):
(a) design, develop, manufacture, sell or offer or promote for
sale any product, process, good or service that is the same as, is functionally
similar to or competes with, any product, process, good or service which Seller
has actually designed, developed, manufactured, sold or offered or promoted for
sale within the three years preceding the date of this agreement, including, but
not limited to, products for automotive window and body sealing systems such as
glass run channels, belt strips and body seals, or otherwise engage in any
business which is the same as or substantially similar to or is or would be
competitive with the business of Seller as it is now operated or as it has
existed during the three years preceding the date of this agreement;
(b) employ, otherwise engage, or offer to employ or otherwise
engage, any employee of the Seller who accepts employment by the Buyer or any
other employee of the Buyer; or
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(c) solicit any business from any person or entity that has
been a customer of the Business or directly or indirectly influence any
customer, supplier or other person who has a business relationship with the
Business to discontinue or reduce the extent of such relationship with the
Business; provided, however, that nothing in this Section 8.3(c) shall prohibit
the Harvard Parties from soliciting any such customer, supplier or other person
for any business other than the Business.
In addition, the Seller and its affiliates shall never use or
divulge any trade secrets, customer or supplier lists, pricing information,
marketing arrangements or strategies, business plans, internal performance
statistics, training manuals or other information concerning the Business that
is competitively sensitive or confidential. Because the breach or attempted or
threatened breach of this restrictive covenant will result in immediate and
irreparable injury to the Buyer for which the Buyer may not have an adequate
remedy at law, the Buyer may be entitled in the event of such breach and upon
adequate proof of such breach in addition to all other remedies, to a decree of
specific performance of this covenant and to a temporary and permanent
injunction enjoining such breach, without posting bond or furnishing similar
security.
8.4 Use of Name. As soon as practicable after the date of this
agreement, but in any event no later than the Closing Date, the Harvard Parties
shall take all action necessary to allow the Buyer to use the name "The
Kingston-Warren Corporation," effective as of the date of the Closing,
including, without limitation, filing a certificate of amendment of certificate
of incorporation of the Seller with the Secretary of State of New Hampshire and
filing appropriate documentation in those other jurisdictions where the Seller
is presently conducting business under the name "The Kingston-Warren
Corporation".
8.5 Survey. The Seller and Harvard shall cooperate with Buyer and
its representatives in the event that Buyer elects to obtain new survey(s)
and/or updated survey(s) for the Seller Property meeting such standards as
required by the Title Insurer (hereinafter defined) in order for the Title
Insurer to omit its general survey exception and issue its title policy subject
to a survey exception referring only to the matters disclosed by the applicable
survey. The Buyer shall be responsible for all costs and expenses associated
with this Section 8.5.
8.6 Assignments. Prior to and at the Closing, the Seller will use
its best efforts to secure all consents, approvals, authorizations, exemptions
and waivers from third parties, without any conditions adverse to the Buyer and
without any obligations imposed on the Buyer not specified in any agreement for
which consent is being obtained, as shall be necessary or advisable in order for
the Buyer, after the Closing, to conduct the Business in a manner substantially
similar to the manner it has been conducted by the Seller prior to the Closing.
8.7 Real Property, Transfer Taxes and Recording Fees. The Harvard
Parties and the Buyer shall each pay 50% of any state or local real property
transfer taxes and any recording fees, payable in connection with the sale of
the Acquired Assets pursuant to this agreement.
8.8 Updating Schedules. Prior to the Closing Date, the Harvard
Parties may update the Schedules provided by the Harvard Parties to the Buyer
pursuant to this agreement to
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reflect (i) errors or omissions and/or (ii) any events or occurrences arising
after the date of this agreement which would cause any of the representations
and warranties made by the Harvard Parties in Section 5 of this agreement
incorrect as of the Closing. Upon presentation, Buyer shall review such
information and determine if it shall accept such updated information for
inclusion in the Schedules to this agreement. If Buyer shall accept such updated
information, the appropriate Schedule(s) shall be deemed amended. If Buyer shall
not accept such updated information for inclusion in the Schedules, then the
Buyer may elect to terminate this agreement and this agreement shall become null
and void and of no further force and effect, without any liability in respect
hereof or of the transactions contemplated hereby on the part of any party
hereto.
9. Conditions to Obligations of the Buyer.
The obligations of the Buyer to consummate the Closing is subject to
the fulfillment, prior to or at the Closing, of each of the following
conditions, any or all of which may be waived in writing by the Buyer, and the
Harvard Parties shall use their respective reasonable best efforts to cause or
to cooperate with the Buyer to permit such conditions to be fulfilled:
9.1 Due Diligence. The Buyer and its advisors shall have completed
their due diligence review of the Seller, the Acquired Assets and the Business,
including, without limitation, investigation of environmental matters, and the
results of such review shall be to the Buyer's reasonable satisfaction.
9.2 Representations and Warranties. Each of the representations and
warranties of the Seller and Harvard in the Transaction Documents shall be true
and correct in all material respects on and as of the Closing Date with the same
force and effect as though made on and as of that date.
9.3 Performance of the Seller and Harvard. The Seller and Harvard
shall have performed and complied in all respects with all agreements, covenants
and conditions required by Transaction Documents to be performed or complied
with by the Seller and Harvard at or before the Closing.
9.4 Material Adverse Change. There shall not have occurred since
March 28, 1999 any material adverse change in the condition, financial or
otherwise, or the results of operations or the prospects of the Business.
9.5 Consents and Liens; Lock-Box Arrangements. The Harvard Parties
shall have obtained or, to the reasonable satisfaction of the Buyer obviated the
need to obtain, those consents, approvals or waivers from regulatory authorities
and third parties set forth on Schedule 9.5 necessary for the execution,
delivery and performance of the Transaction Documents and the consummation of
the transactions contemplated thereby, all without cost or other adverse
consequences to the Business. With respect to any such consent, the Seller shall
in good faith request that such consent include confirmation from the person
giving such consent that there are
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no existing defaults by the Harvard Parties. Except as otherwise expressly
consented to by the Buyer and for Permitted Liens, the Harvard Parties shall
have caused all Liens set forth on Schedule 5.8(a) to be released and terminated
(and, with respect to such releases and terminations, obtained pay-off letters
and/or UCC-3 termination statements in form satisfactory to the Buyer). Except
as otherwise consented to by Buyer, all lock-box or similar arrangements with
respect to the Business shall be terminated as soon as practicable.
9.6 Escrow Agreement. The Harvard Parties shall have entered into
the Escrow Agreement in the form of Exhibit A to this agreement.
9.7 Transactions with Affiliates. Except for the Transition
Agreement, all agreements to which the Seller and Harvard or any affiliate of
Harvard relating to the Business shall have been terminated.
9.8 Litigation. No action or proceeding shall be pending or
threatened before any court, tribunal or governmental body, and no claim or
demand shall have been made against the Buyer, the Seller or Harvard seeking to
restrain or prohibit or to obtain damages or other relief in connection with the
consummation of the transactions contemplated by the Transaction Documents, or
which might materially affect the Business, which in the reasonable opinion of
the Buyer makes it inadvisable to consummate such transactions.
9.9 Certificate. The Buyer shall have received a certificate
executed by the Chief Executive Officer of each of Harvard and the Seller dated
the Closing Date, certifying, in such detail as the Buyer may reasonably
request, as to the fulfillment of the conditions set forth in this Section 9.
9.10 Opinion of Counsel. The Buyer shall have received an opinion,
dated the date of the Closing, from Sonnenschein Nath & Rosenthal, counsel to
the Seller, in the form of Exhibit B to this agreement.
9.11 Title Insurance. It shall be a condition to Closing that on the
Closing Date: (i) the Seller and Harvard have good and insurable title to the
Seller Property as disclosed herein, free and clear of all Liens, except for
Permitted Liens and that such title is transferred to Buyer or its designee by
warranty deed or assignment, as applicable, in the form contemplated by Section
11.1(b) and consistent with the representations and warranties of the Harvard
Parties contained herein; and (ii) Buyer shall have received title insurance
commitments issued by a title company acceptable to Buyer substantially in the
form set forth in Schedule 9.11.
9.12 Estoppel Letters. The Buyer shall have received those estoppel
letters reasonably requested by the Buyer (the "Estoppels"), in a form
reasonably satisfactory to Buyer, from the landlords under all the Seller Leases
and the tenants under all Tenant Leases. The Seller shall request from all such
landlords and tenants estoppel letters substantially in the form[s] annexed
hereto as Schedule 9.12, but the Seller shall have no obligation to deliver
estoppel letters in any form other than as required under each Seller Lease and
Tenant Lease. The Seller
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shall use reasonable efforts to and act with due diligence to obtain estoppel
letters from all such landlords and tenants.
9.13 LLC Termination. Pursuant to a termination agreement in the
form of Exhibit C hereto (the "Termination Agreement"), at or prior to the
Closing, the Seller shall terminate that certain Limited Liability Agreement
between the Seller and Hutchinson SA, a French corporation, dated November 27,
1995.
9.14 Transition Services Agreement. The Harvard Parties shall have
entered into a Transition Services Agreement in the form of Exhibit D to this
agreement (the "Transition Agreement").
9.15 Federal Trade Commission and Department of Justice. The
applicable waiting period under the HSR Act, together with any extension of such
waiting period, shall have expired or terminated and neither the Federal Trade
Commission nor the Assistant Attorney General in charge of the Antitrust
Division of the Department of Justice shall have instituted a proceeding
alleging that the transactions contemplated by this agreement violate any
applicable laws.
10. Conditions to Obligations of the Harvard Parties
The obligations of the Harvard Parties to consummate the Closing is
subject to the fulfillment, prior to or at the Closing, of each of the following
conditions, any or all of which may be waived in writing by the Harvard Parties
and the Buyer shall use its reasonable best efforts to cause and to cooperate
with the Harvard Parties to permit such conditions to be fulfilled:
10.1 Representations and Warranties. Each of the representations and
warranties of the Buyer in the Transaction Documents shall be true and correct
in all material respects on and as of the Closing Date with the same force and
effect as though made on and as of that date.
10.2 Performance of the Buyer. The Buyer shall have performed and
complied in all respects with all agreements, covenants and conditions required
by the Transaction Documents to be performed or complied with by the Buyer at or
before the Closing.
10.3 Purchase Price. The Buyer shall have paid the Base Purchase
Price as provided in Section 3.1.
10.4 Escrow Agreement. The Buyer shall have entered into the Escrow
Agreement.
10.5 Litigation. No action or proceeding shall be pending or
threatened before any court, tribunal or governmental body, and no claim or
demand shall have been made against the Harvard Parties, the Seller or Harvard
seeking to restrain or prohibit or to obtain damages or other relief in
connection with the consummation of the transactions contemplated by the
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Transaction Documents, or which might materially affect the Business, which in
the reasonable opinion of the Harvard Parties makes it inadvisable to consummate
such transactions.
10.6 Certificate. The Harvard Parties shall have received a
certificate executed by the Buyer dated the Closing Date, certifying, in such
detail as the Harvard Parties may reasonably request, as to the fulfillment of
the conditions set forth in Section 10.
10.7 Opinion of Counsel. The Seller shall have received an opinion,
dated the date of the Closing, from Proskauer Rose LLP, counsel to the Buyer, in
the form of Exhibit E to this agreement.
10.8 Termination Agreement. The Buyer shall cause Hutchinson SA, a
French corporation, to enter into the Termination Agreement.
10.9 Transition Agreement. The Buyer shall have entered into the
Transition Agreement.
10.10 Federal Trade Commission and Department of Justice. The
applicable waiting period under the HSR Act, together with any extensions of
such waiting period, shall have expired or terminated and neither the Federal
Trade Commission nor the Assistant Attorney General in charge of the Antitrust
Division of the Department of Justice shall have instituted a proceeding
alleging that the transactions contemplated by this agreement violate any
applicable laws.
10.11 Guaranty. TOTAL America, Inc. (the "Guarantor") shall have
executed a guaranty in the form of Exhibit F hereto (the "Guaranty") and Buyer's
accountants shall deliver a comfort letter to Seller as to the net worth of the
Guarantor.
11. Closing Deliveries.
11.1 Deliveries by the Harvard Parties. At the Closing, the Harvard
Parties shall deliver, or shall cause to be delivered, to the Buyer the
following:
(a) a duly executed bill of sale in the form of Exhibit G to
this agreement;
(b) a deed with respect to each parcel of the Seller Property
that is owned by the Seller or Harvard in the form of Exhibit H to this
agreement, duly executed and acknowledged by the Seller or Harvard, as
applicable, in recordable form, so as to convey to Buyer or its designee all
right, title and interest of the Seller and Harvard in and to the land, all
improvements thereon and related rights with respect to such the Seller
Property, free and clear of all Liens other than Permitted Liens;
(c) an assignment and assumption agreement with respect to
each of the Seller Leases in the form of Exhibit I to this agreement (the "Lease
Assignment and
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Assumption Agreement") duly executed and acknowledged by the Seller or Harvard,
as applicable, so as to assign to Buyer or its designee all right, title and
interest of the Seller and Harvard in and to the Seller Leases, free and clear
of all Liens other than Permitted Liens;
(d) all instruments as are necessary or reasonably required by
Buyer or the Title Company to evidence the authority of the Seller and Harvard
executing and delivering the instruments to be executed and delivered in
connection with the consummation of the transactions contemplated by this
agreement, and evidence that the execution and delivery of such instruments is
the official act and deed of such party;
(e) possession and delivery of all Acquired Assets, including,
without limitation, the Fixed Assets, subject only to Permitted Liens;
(f) affidavits of the Seller and Harvard certifying that they
are not foreign persons as defined in Code Section 1445;
(g) [intentionally omitted];
(h) the Estoppels, pursuant to Section 9.12;
(i) such other instruments of assignment and conveyance as may
be reasonably necessary or appropriate to fully and effectively transfer the
Acquired Assets to the Buyer;
(j) the Escrow Agreement, duly executed by the Seller;
(k) originals of the consents referred to in Section 9.5;
(l) the certificate referred to in Section 9.9;
(m) the legal opinion referred to in Section 9.10;
(n) the Termination Agreement, duly executed by the Seller;
(o) the Transition Agreement, duly executed by the Harvard
Parties;
(p) the amount of the Outstanding Checks, pursuant to Section
7.8; and
(q) an assignment agreement with respect to the Intellectual
Property in the form of Exhibit J to this agreement, duly executed by the
Harvard Parties.
11.2 The Buyer's Deliveries. At the Closing, the Buyer shall
deliver, or shall cause to be delivered, to the Seller the following:
(a) $108,800,000.00, by wire transfer;
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(b) evidence of delivery of $6,200,000.00 to the Escrow Agent;
(c) the Escrow Agreement, duly executed by the Buyer;
(d) the certificate referred to in Section 10.6;
(e) the legal opinion referred to in Section 10.7;
(f) the Termination Agreement, duly executed by Hutchinson SA;
(g) the Transition Agreement, duly executed by Buyer;
(h) the Lease Assignment and Assumption Agreement, duly
executed by the Buyer;
(i) an Assumption Agreement in the form of Exhibit K to this
agreement (the "Assumption Agreement"), duly executed by Buyer; and
(j) the Guaranty and related comfort letter referred to in
Section 10.11, duly executed by Guarantor and Buyer's accountants, respectively.
12. Indemnification.
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12.1 Indemnification by the Harvard Parties. Subject to Section
12.3, the Seller and Harvard shall jointly and severally indemnify, defend and
hold harmless the Buyer, its shareholders and any of their respective directors,
officers and employees and successors and assigns (collectively, the "Buyer
Indemnities"), promptly upon demand at any time and from time to time against
any and all losses, liabilities, claims, actions, damages, fines, penalties or
expenses, including, without limitation, reasonable attorneys' fees and
disbursements (collectively, "Losses"), whether involving a third party or
between the parties to this agreement, the Buyer, the other Buyer Indemnities,
the Business or the Acquired Assets may suffer, sustain or become subject to
arising out of or in connection with (i) any misrepresentation or breach of any
warranty made by the Seller or Harvard in any of the Transaction Documents; (ii)
any breach or nonfulfillment of any covenant or agreement made by the Seller or
Harvard in any of the Transaction Documents; (iii) the failure by the Harvard
Parties to pay, perform or discharge when due any of the liabilities or
obligations relating to the Excluded Liabilities; (iv) any litigation,
proceeding (whether administrative, quasi-administrative, legislative or
judicial) or governmental investigation, whether commenced before or after the
date of this agreement, arising out of or in connection with the operation of
the Business, conditions existing, or acts or omissions occurring, at or prior
to the Closing Date, regardless of the outcome of such litigation, proceeding
(whether administrative, quasi-administrative, legislative or judicial) or
governmental investigation (including, without limitation, those matters
described on Schedule 5.10 or otherwise disclosed or known to the Buyer as of
the date of this agreement),(v) any Environmental Liabilities relating to or
arising out of any Excluded Liabilities, (vi) any Environmental Liabilities
relating to any Acquired Assets or the Business whether or not arising out of
the operation of the Business or the ownership, lease, use or operation of any
real property, which have been asserted, or may be asserted against any party to
this agreement, the Acquired Assets, the Excluded Assets or the Business prior
to or following the Closing Date (including, without limitation, any
investigation, remedial or monitoring costs), but only to the extent that the
acts of omission or commission giving rise to such shall have occurred or the
physical condition shall have existed on or prior to the Closing Date; (vii) any
claim by a third party arising out of or relating to any act or omission by the
Seller or Harvard on or prior to the Closing Date, and (viii) any failure to
comply with any "bulk sales" or sales tax laws applicable to the transactions
contemplated hereby (other than Losses arising solely as a result of Buyer's
failure to pay and discharge the Assumed Liabilities).
12.2 Indemnification by the Buyer. Subject to Section 12.3, the
Buyer shall indemnify, defend and hold harmless the Harvard Parties, promptly
upon demand at any time and from time to time, against any and all Losses,
whether involving a third party or between the parties to this agreement, the
Harvard Parties may suffer, sustain or become subject to arising out of or in
connection with (a) any misrepresentation or breach of any warranty made by the
Buyer in any of the Transaction Documents; (b) any breach or nonfulfillment of
any covenant or agreement made by the Buyer in any of the Transaction Documents;
(c) the failure of the Buyer to pay, perform or discharge when due any of the
liabilities or obligations relating to the Assumed Liabilities, but only to the
extent that such liabilities or obligations arise after the Closing Date; (d)
the ownership of or use by the Buyer of the Acquired Assets or the Business
after the Closing Date; and (e) any failure to comply with the Worker Adjustment
and Retraining
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Notification Act (arising solely as a result of the failure by the Buyer to
comply with Section 7.5(a)).
12.3 Limitations on Indemnification.
(a) No claim for indemnification under Section 12.1(i) or
Section 12.2(a) shall be valid unless made within the period of survival of the
applicable representation or warranty as described in Section 14.
(b) Any party which shall be obligated to indemnify any other
party or parties under Section 12.1(i) or Section 12.2(a) shall be so obligated
only to the extent that the aggregate amount of any Losses actually paid or
suffered by any indemnified party as to which a right of indemnification is
provided under said Section 12.1(i) or Section 12.2(a) shall exceed $500,000, in
which event any such amounts shall be payable to the extent such amounts exceed
$500,000 (the "General Basket"); provided, further that any party which shall be
obligated to indemnify any other party or parties under Section 12.1(i) or
Section 12.2(a) shall be so obligated only to the extent that the amount of each
of the Losses actually paid or suffered by any indemnified party as to which a
right of indemnification is provided under said Section 12.1(i) or Section
12.2(a) exceeds $2,500 individually ("Individual Threshold Amounts"), except for
any Individual Threshold Amounts less than $2,500 which arise out of the same
occurrence or series of related events. Notwithstanding anything in this Section
12.3(b) to the contrary, (i) none of the foregoing limitations on
indemnification shall apply to any Losses of the Buyer or other Buyer
Indemnities in respect of any Taxes payable by the Harvard Parties and (ii) with
respect to any Losses attributable to a breach or misrepresentation by the
Harvard Parties under Section 5.15 (Environmental Matters), the General Basket
shall be increased by up to the lesser of (x) $250,000 or (y) the actual amount
of Losses paid, but in no event shall the General Basket exceed $750,000 in the
aggregate.
(c) In no event shall the aggregate liability of the Harvard
Parties or Buyer pursuant to Section 12.1(i) or 12.2(a) of this agreement exceed
$50,000,000.
(d) Notwithstanding anything in this agreement to the
contrary, for purposes of the application of the indemnity provisions of this
Section 12, the computation of the amount of any Losses shall be the entire
amount of any Losses actually incurred by Buyer or the Harvard Parties, as the
case may be, and not just that portion of the Losses that exceeds the relevant
level of materiality.
(e) The amount of any Losses for which indemnification is
provided under this Section 12 shall be net of any amount recovered or
recoverable by the indemnified party under insurance policies with respect to
such Losses and the parties agree to first seek recovery under any applicable
insurance policies prior to requesting any payments under this Section 12.
13. Defense.
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(a) If any action, suit or proceeding shall be commenced, or
any claim or demand shall be asserted, in respect of which a party entitled to
indemnification pursuant to this agreement (the "Indemnitee") demands
indemnification under Section 12, the party from which such indemnification is
demanded under Section 12 (the "Indemnitor") shall be notified to that effect
with reasonable promptness and shall have the right to assume the entire control
of (including the selection of counsel), subject to the right of the Indemnitee
to participate (with counsel of its choice) in, the defense, compromise or
settlement thereof. Failure of Indemnitee to give such notice to Indemnitor
shall not relieve Indemnitor from any of its obligations under Section 12,
except to the extent such failure materially prejudices the defense of the
action or proceeding by Indemnitor.
(b) The fees and expenses of any counsel chosen by Indemnitee
shall be at the expense of the Indemnitee unless (i) the employment of such
counsel by the Indemnitee has been specifically authorized by the Indemnitor;
(ii) the named parties to any such action (including any impleaded parties)
include both the Indemnitee and the Indemnitor and the Indemnitee shall have
been advised by its counsel that there may be one or more good-faith legal
defenses available to it which are different from or additional to those
available to the Indemnitor; or (iii) the employment of such counsel by the
Indemnitee would result in a conflict of interest precluding the counsel from
accepting such a retention arrangement.
(c) The Indemnitee shall reasonably cooperate, at the
Indemnitor's expense, in all respects with the Indemnitor in any such defense,
compromise or settlement, including, without limitation, making available all
pertinent non-confidential and non-proprietary information under its control to
the Indemnitor. The Indemnitor may not consent to the entry of any judgement
with respect to the matter or enter into any settlement with respect to the
matter which judgment or settlement does not unconditionally release the
Indemnitee from all liability (including, without limitation, contingent
liabilities) and other Losses to the third party with respect thereto without
the Indemnitee's consent, which consent shall not be unreasonably withheld,
provided, however, that in the event such consent is unreasonably withheld, then
the liabilities of the Indemnitor shall be limited to the total sum representing
the amount of the proposed compromise or settlement plus the amount of counsel
fees accumulated at the time such consent is withheld. The Indemnitor shall not
be liable for any settlement by Indemnitee of any action, suit, proceeding,
claim or demand, unless Indemnitee obtains the prior written consent of the
Indemnitor.
14. Survival.
Notwithstanding any examination or investigation made by or for any
party, all representations and warranties made by the Harvard Parties and the
Buyer in the Transaction Documents shall survive the Closing for a period of two
(2) years after the Closing Date, except that representations and warranties
made by the Harvard Parties in Section 5.15 (Environmental Matters) shall
survive the Closing for six (6) years, representations and warranties made by
the Harvard Parties in Sections 5.18 (Employee Benefit Plans) and 5.7 (Tax
Matters) shall survive the Closing for the duration of the statutes of
limitations applicable thereto and the representations and warranties of the
Harvard Parties made in Section 5.8 with respect to title to
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such asset (Real and Personal Property; Absence of Encumbrances) shall survive
the Closing indefinitely. All covenants of the parties that are to be performed
after the Closing shall continue in effect and expire in accordance with their
respective terms.
15. Termination. This agreement:
15.1 (a) may be terminated by written agreement of Buyer and the
Harvard Parties;
(b) may be terminated by the Buyer, on the one hand, and the
Harvard Parties, on the other hand, by written notice to the other, if at any
time prior to the Closing any event shall have occurred or any state of facts
shall exist that renders (i) any of the conditions to its respective obligations
as provided in this agreement incapable of fulfillment or (ii) any of the other
party's representations and warranties herein not true and correct in all
material respects as of the date when made; or
(c) shall automatically terminate without any further action
of the parties hereto if the Closing does not occur by 5:00 p.m. New York time
on November 30, 1999.
15.2 In the event of the termination of this agreement pursuant to
the provisions of Section 15.1, this agreement shall become null and void and
have no further force and effect, without any liability in respect hereof or of
the transactions contemplated hereby on the part of any party hereto, or any of
the directors, officers, employees, agents, consultants, representatives,
advisers, stockholders or Affiliates of any party hereto, except for any
liability resulting from such party's breach of this agreement.
16. Miscellaneous.
16.1 Notices. Any notice or other communication under this agreement
shall be in writing and shall be considered given when delivered personally or
when sent by facsimile upon receipt, one day after being sent by a major
overnight courier, to the parties at the addresses set forth below (or at such
other address as a party may specify by notice to the other):
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If to the Harvard Parties:
The Kingston-Warren Corporation
3 Werner Way, Suite 210
Lebanon, NJ 08833
Attn: Jerry Tighe
Senior Vice President and General Counsel
Fax: 908-236-0071
and
Harvard Industries, Inc.
3 Werner Way, Suite 210
Lebanon, NJ 08833
Attn: Jerry Tighe
Senior Vice President and General Counsel
Fax: 908-236-0071
with a copy to:
Sonnenschein Nath & Rosenthal
1221 Avenue of the Americas
New York, New York 10020
Attn: Joseph H. Smolinsky, Esq.
If to the Buyer:
Hutchinson
124, avenue de Champs Elysees
75008 Paris, FRANCE
Attn: Dominique Mounier
-------------------
Fax: 33-1-40-74-83-17
with a copy to:
Proskauer Rose LLP
1585 Broadway
New York, New York 10036-8299
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Attn: Stanley Komaroff, Esq.
Fax: 212-969-2900
16.2 Entire Agreement. This agreement, including the schedules and
exhibits, contains a complete statement of all the arrangements between the
parties with respect to its subject matter, supersedes any previous agreements
between them relating to that subject matter, except that certain agreement
between Harvard and the Buyer dated June 23, 1999, which agreement shall
automatically terminate and be of no further force or effect on the Closing
Date.
16.3 Headings. The Section headings of this agreement are for
reference purposes only and are to be given no effect in the construction or
interpretation of this agreement.
16.4 Governing Law. This agreement shall be governed by and
construed in accordance with the law of the State of New York applicable to
agreements made and to be performed in New York.
16.5 Equitable Relief. The parties acknowledge that the remedy at
law for breach of this agreement may be inadequate and that, in addition to any
other remedy a party may have for a breach of this agreement, that party may be
entitled to an injunction restraining any such breach or threatened breach, or a
decree of specific performance, without posting any bond or security. The remedy
provided in this Section 16.5 is in addition to, and not in lieu of, any other
rights or remedies a party may have.
16.6 Separability. If any provision of this agreement is invalid or
unenforceable, the balance of this agreement shall remain in effect.
16.7 Amendment, Modification or Waiver. No provision of this
agreement may be amended or modified except by an instrument in writing signed
by the Buyer and the Seller. Any party may waive compliance by the other with
any provision of this agreement. No waiver of any provision shall be construed
as a waiver of any other breach of that provision or of any other provision of
this agreement. Any waiver must be in writing.
16.8 Assignment; Successors. This agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, personal representatives, successors and assigns;
provided, however, that neither this agreement nor any right or obligation
hereunder may be assigned or transferred, except that the Buyer may assign this
agreement and its rights hereunder to any direct or indirect wholly-owned
subsidiary of the Buyer and its rights under Section 12 to financial
institutions providing financing for the transaction.
16.9 Exclusivity. The Harvard Parties shall not, during the period
between the execution of this agreement and either the Closing or the
termination hereof pursuant to Section 15, pursue, initiate, encourage or engage
in, any negotiations or discussions with any other person regarding the sale or
other disposition (whether by merger, reorganization, recapitalization or
otherwise) of all or part of the capital stock of the Seller or any of the
Seller's assets or the
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Business (a "Transaction Proposal") or provide any information to any other
person regarding the Seller other than information which has historically been
provided in the regular course of business operations to third parties where the
Harvard Parties do not reasonably believe that such information may be utilized
to evaluate any such possible sale or other disposition. The Harvard Parties
covenant and agree to promptly notify the Buyer if any Transaction Proposal, or
any inquiry or contact with any person or entity with respect thereto, is made.
16.10 Jurisdiction. The parties hereto hereby irrevocably consent to
the exclusive jurisdiction of all Federal and State courts in New York County,
New York, with respect to any and all proceedings brought by the parties hereto
or their respective representatives, successors or assigns in connection with
this agreement.
16.11 Counterparts. This agreement may be executed in counterparts,
which together shall constitute the same instrument.
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The parties have executed this agreement as of the date set forth
above.
KWC ACQUISITION CORP.
By: ___________________________
Name: Dominique Mounier
Title: President
THE KINGSTON-WARREN CORPORATION
By: ___________________________
Name:
Title:
HARVARD INDUSTRIES, INC.
By: ___________________________
Name:
Title:
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TABLE OF CONTENTS
Page
----
1. Definitions............................................................1
2. Purchase and Sale of the Business......................................8
2.1 Purchase of the Business.........................................8
2.2 Excluded Assets.................................................10
2.3 Excluded Liabilities............................................11
3. Purchase Price........................................................13
3.1 The Purchase Price..............................................13
3.2 Allocation of Consideration.....................................13
3.3 Adjustment Procedure............................................14
4. Closing...............................................................15
5. Representations and Warranties of the Harvard Parties.................15
5.1 Organization, Good Standing and Qualification...................16
5.2 Authority; Consents and No Conflicts............................16
5.3 Ownership of Seller; Subsidiaries...............................17
5.4 Financial Statements............................................17
5.5 Absence of Undisclosed Liabilities..............................17
5.6 Absence of Certain Changes......................................17
5.7 Tax Matters.....................................................17
5.8 Real and Personal Property; Absence of Encumbrances.............18
5.9 Intellectual Property and Proprietary Assets....................20
5.10 Litigation......................................................20
5.11 List of Material Contracts, etc.................................20
5.12 Status of Material Contracts....................................21
5.13 Inventory.......................................................21
5.14 Accounts Receivable.............................................21
5.15 Environmental Matters...........................................21
5.16 Permits.........................................................24
5.17 Employees.......................................................24
5.18 Employee Benefit Plans..........................................25
5.19 Insurance.......................................................26
5.20 Banks; Power of Attorney........................................26
5.21 Books and Records...............................................27
5.22 Restrictions....................................................27
5.23 Transactions with Affiliates....................................27
5.24 Year 2000 Compliance............................................27
5.25 Product Warranties..............................................27
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5.26 Finders.........................................................28
5.27 Backlog.........................................................28
5.28 Customers and Suppliers.........................................28
5.29 Bankruptcy......................................................28
5.30 Disclosure......................................................29
5.31 Schedules and Exhibits are Incorporated.........................29
6. Representations and Warranties of the Buyer...........................29
6.1 Organization and Good Standing..................................29
6.2 Authority; Consents; and No Conflicts...........................29
6.3 Finders.........................................................30
7. Further Agreements of the Parties.....................................30
7.1 Expenses........................................................30
7.2 Publicity.......................................................30
7.3 Hart-Scott-Rodino...............................................30
7.4 Escrow Arrangements.............................................30
7.5 Employee Benefits...............................................32
7.6 Further Assurances..............................................35
7.7 Cooperation.....................................................35
7.8 Payment of Outstanding Seller Checks............................35
7.9 Reimbursement of Harvard Parties. .............................35
8. Covenants of the Seller...............................................36
8.1 Access to Properties and Information............................36
8.2 Conduct of Business.............................................36
8.3 Restrictive Covenant............................................36
8.4 Use of Name.....................................................37
8.5 Survey..........................................................37
8.6 Assignments.....................................................38
8.7 Real Property, Transfer Taxes and Recording Fees................38
8.8 Updating Schedules..............................................38
9. Conditions to Obligations of the Buyer................................38
9.1 Due Diligence...................................................38
9.2 Representations and Warranties..................................38
9.3 Performance of the Seller and Harvard...........................39
9.4 Material Adverse Change.........................................39
9.5 Consents and Liens; Lock-Box Arrangements.......................39
9.6 Escrow Agreement................................................39
9.7 Transactions with Affiliates....................................39
9.8 Litigation......................................................39
9.9 Certificate.....................................................39
9.10 Opinion of Counsel..............................................40
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9.11 Title Insurance.................................................40
9.12 Estoppel Letters................................................40
9.13 LLC Termination.................................................40
9.14 Transition Services Agreement...................................40
9.15 Federal Trade Commission and Department of Justice..............40
10. Conditions to Obligations of the Harvard Parties......................40
10.1 Representations and Warranties..................................41
10.2 Performance of the Buyer........................................41
10.3 Purchase Price..................................................41
10.4 Escrow Agreement................................................41
10.5 Litigation......................................................41
10.6 Certificate.....................................................41
10.7 Opinion of Counsel..............................................41
10.8 Termination Agreement...........................................41
10.9 Transition Agreement............................................41
10.10 Federal Trade Commission and Department of Justice..............41
10.11 Guaranty........................................................42
11. Closing Deliveries....................................................42
11.1 Deliveries by the Harvard Parties...............................42
11.2 The Buyer's Deliveries..........................................43
12. Indemnification.......................................................44
12.1 Indemnification by the Harvard Parties..........................44
12.2 Indemnification by the Buyer....................................44
12.3 Limitations on Indemnification..................................45
13. Defense...............................................................46
14. Survival..............................................................46
15. Termination...........................................................47
16. Miscellaneous.........................................................47
16.1 Notices.........................................................47
16.2 Entire Agreement................................................49
16.3 Headings........................................................49
16.4 Governing Law...................................................49
16.5 Equitable Relief................................................49
16.6 Separability....................................................49
16.7 Amendment, Modification or Waiver...............................49
16.8 Assignment; Successors..........................................49
16.9 Exclusivity.....................................................49
iii
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16.10 Jurisdiction....................................................50
16.11 Counterparts....................................................50
iv
<PAGE>
SCHEDULES
Schedule 1.57 Knowledge
Schedule 1.70 Permitted Liens
Schedule 1.77 Referenced Footnotes
Schedule 2.1.1(c) The Acquired Assets
Schedule 2.1.2 The Assumed Liabilities
Schedule 3.2 Allocation of Consideration
Schedule 3.3(a) Agreed Upon Procedures
Schedule 5.2(b) Authority; Consents and No Conflicts
Schedule 5.3 Ownership of Seller
Schedule 5.4 Financial Statements
Schedule 5.5 Absence of Undisclosed Liabilities
Schedule 5.7(a) Tax Matters
Schedule 5.7(h) Tax Matters
Schedule 5.8(a) Real and Personal Property; Absence of Encumbrances
Schedule 5.8(c) Real and Personal Property; Absence of Encumbrances
Schedule 5.9 Intellectual Property and Proprietary Assets
Schedule 5.10 Litigation
Schedule 5.11 List of Material Contracts, etc.
Schedule 5.12 Status of Material Contracts
Schedule 5.13 Inventory
Schedule 5.14 Accounts Receivable
Schedule 5.15 Environmental Matters
Schedule 5.16 Permits
Schedule 5.17(a) Employees
Schedule 5.17(b) Employees
Schedule 5.17(c) Employees
Schedule 5.18(a) Employee Benefit Plans
Schedule 5.18(b)(i) Employee Benefit Plans
Schedule 5.18(b)(ii) Employee Benefit Plans
Schedule 5.18(d)(i) Employee Benefit Plans
Schedule 5.18(d)(ii) Employee Benefit Plans
Schedule 5.19 Insurance
Schedule 5.20 Banks; Power of Attorney
Schedule 5.23 Transactions with Affiliates
Schedule 5.24 Year 2000 Compliance
Schedule 5.25 Product Warranties
Schedule 5.26 Finders
Schedule 5.27 Backlog
Schedule 5.28 Customers and Suppliers
Schedule 5.29 Bankruptcy
Schedule 6.2(b) Authority; Consents and No Conflicts
Schedule 6.3 Finders
v
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Schedule 7.5 Employee Benefits
Schedule 9.5 Consents and Liens: Lock-Box Arrangements
Schedule 9.11 Title Insurance
Schedule 9.12 Estoppel Letters
Exhibit A Form of Escrow Agreement
Exhibit B Form of Opinion of Sonnenschein Nath & Rosenthal
Exhibit C Form of Termination Agreement
Exhibit D Form of Transition Agreement
Exhibit E Form of Opinion of Proskauer Rose LLP
Exhibit F Form of Guaranty
Exhibit G Form of Bill of Sale
Exhibit H Form of Deed
Exhibit I Assignment and Assumption Agreement
Exhibit J Form of Intellectual Property Assignment Agreements
Exhibit K Assumption Agreement
Exhibit L Environmental Related Assignment and Assumption Agreement
vi
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Exhibit 10.2
CREDIT AGREEMENT, dated as of September 30, 1999 among HARVARD INDUSTRIES,
INC., a Delaware corporation ("Harvard" or the "Borrower Representative"),
DOEHLER-JARVIS, INC., a Delaware corporation, HARVARD TRANSPORTATION CORPORATION
("Harvard Transportation"), a Michigan corporation, DOEHLER-JARVIS GREENEVILLE,
INC., a Delaware corporation, POTTSTOWN PRECISION CASTING, INC., a Delaware
corporation ("Pottstown"), HARVARD INDUSTRIES RISK MANAGEMENT, INC., a Delaware
corporation, DOEHLER-JARVIS TOLEDO, INC., a Delaware corporation, HARMAN
AUTOMOTIVE, INC., a Michigan corporation ("Harman"), HAYES-ALBION CORPORATION, a
Michigan corporation ("Hayes-Albion"), and THE KINGSTON-WARREN CORPORATION, a
New Hampshire corporation (together with the Borrower Representative, jointly
and severally referred to herein as the "Borrowers" and individually as a
"Borrower"); GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation (in
its individual capacity, "GE Capital"), for itself, as Lender, and as Agent for
Lenders, and the other Lenders signatory hereto from time to time.
RECITALS
WHEREAS, Credit Parties have requested that Lenders extend revolving
credit facilities to Borrowers of up to Fifty Million Dollars ($50,000,000.00)
in the aggregate for the purpose of refinancing certain indebtedness of
Borrowers and to provide (a) working capital financing for Borrowers, (b) funds
for other general corporate purposes of Borrowers and (c) funds for certain fees
and expenses in connection with the transactions contemplated hereby; and for
these purposes, Lenders are willing to make certain loans and other extensions
of credit to Borrowers of up to such amount upon the terms and conditions set
forth herein; and
WHEREAS, in order to induce Agent and Lenders to provide the
financial accommodations hereunder, each Credit Party has agreed to guarantee
the full and prompt payment and performance of all Obligations and each Credit
Party has agreed to secure all of its obligations under the Loan Documents by
granting to Agent, for the benefit of Agent and Lenders, a security interest in
and lien upon all of their existing and after-acquired personal and real
property; and
WHEREAS, capitalized terms used in this Agreement shall have the
meanings ascribed to them in Annex A and, for purposes of this Agreement and the
other Loan Documents, the rules of construction set forth in Annex A shall
govern. All Annexes, Disclosure Schedules, Exhibits and other attachments
(collectively, "Appendices") hereto, or expressly identified to this Agreement,
are incorporated herein by reference, and taken together with this Agreement,
shall constitute but a single agreement. These Recitals shall be construed as
part of the Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and for other good and valuable consideration,
the parties hereto agree as follows:
1. AMOUNT AND TERMS OF CREDIT
1.1. Credit Facilities
(a) Revolving Credit Facility.
<PAGE>
(i) Subject to the terms and conditions hereof, each Revolving
Lender agrees to make available to Borrowers from time to time until the
Commitment Termination Date its Pro Rata Share of advances (each, a "Revolving
Credit Advance"). The Pro Rata Share of the Revolving Loan of any Revolving
Lender shall not at any time exceed its separate Revolving Loan Commitment. The
obligations of each Revolving Lender hereunder shall be several and not joint.
The aggregate amount of Revolving Credit Advances outstanding shall not exceed
at any time the Maximum Amount less the sum of the Letter of Credit Obligations
outstanding at such time ("Borrowing Availability"). Borrowing Availability may
be further reduced by Reserves imposed by Agent in its reasonable credit
judgment. Until the Commitment Termination Date, Borrowers may from time to time
borrow, repay and reborrow under this Section 1.1(a). Each Revolving Credit
Advance shall be made on notice by Borrower Representative on behalf of the
applicable Borrower to one of the representatives of Agent identified in
Disclosure Schedule 1.1 at the address specified therein. Those notices must be
given no later than (1) noon (New York time) on the Business Day of the proposed
Revolving Credit Advance, in the case of an Index Rate Loan, or (2) noon (New
York time) on the date which is three (3) Business Days prior to the proposed
Revolving Credit Advance, in the case of a LIBOR Loan. Each such notice (a
"Notice of Revolving Credit Advance") must be given in writing (by telecopy or
overnight courier) substantially in the form of Exhibit 1.1(a)(i), and shall
include the information required in such Exhibit and such other information as
may be required by Agent. Each borrowing under the Revolving Loan Commitments
for Index Rate Loans shall be in a minimum amount of $250,000. If any Borrower
desires to have the Revolving Credit Advances bear interest by reference to a
LIBOR Rate, Borrower Representative must comply with Section 1.5(e).
(ii) Borrowers shall execute and deliver to each Revolving
Lender a note to evidence the Revolving Loan Commitment of that Revolving
Lender. Each note shall be in the principal amount of the Revolving Loan
Commitment of the applicable Revolving Lender, dated the Closing Date and
substantially in the form of Exhibit 1.1(a)(ii) (each, a "Revolving Note" and,
collectively, the "Revolving Notes"). Each Revolving Note shall represent the
obligation of each Borrower to pay the amount of the applicable Revolving
Lender's Revolving Loan Commitment or, if less, such Revolving Lender's Pro Rata
Share of the aggregate unpaid principal amount of all Revolving Credit Advances
to such Borrower together with interest thereon as prescribed in Section 1.5.
The entire unpaid balance of the aggregate Revolving Loan and all other
noncontingent Obligations shall be immediately due and payable in full in
immediately available funds on the Commitment Termination Date.
(iii) Agent shall make Revolving Credit Advances available to
the applicable Borrower by remitting same to the bank account designated by
Borrower Representative by 2:00 p.m. (New York time) on the Business Day of the
proposed Revolving Credit Advance.
(b) INTENTIONALLY OMITTED.
(c) INTENTIONALLY OMITTED.
(d) Reliance on Notices; Appointment of Borrower Representative.
Agent shall be entitled to rely upon, and shall be fully protected in relying
upon, any
2
<PAGE>
Notice of Revolving Credit Advance, Notice of Conversion/Continuation or similar
notice believed by Agent to be genuine. Agent may assume that each Person
executing and delivering any notice in accordance herewith was duly authorized,
unless the responsible individual acting thereon for Agent has actual knowledge
to the contrary. Each Borrower hereby designates Harvard as its representative
and agent on its behalf for the purposes of issuing Notices of Revolving Credit
Advances and Notices of Conversion/Continuation, giving instructions with
respect to the disbursement of the proceeds of the Loans, selecting interest
rate options, requesting Letters of Credit, giving and receiving all other
notices and consents hereunder or under any of the other Loan Documents and
taking all other actions (including in respect of compliance with covenants) on
behalf of any Borrower or Borrowers under the Loan Documents. Borrower
Representative hereby accepts such appointment. Agent and each Lender may regard
any notice or other communication pursuant to any Loan Document from Borrower
Representative as a notice or communication from all Borrowers, and may give any
notice or communication required or permitted to be given to any Borrower or
Borrowers hereunder to Borrower Representative on behalf of such Borrower or
Borrowers. Each Borrower agrees that each notice, election, representation and
warranty, covenant, agreement and undertaking made on its behalf by Borrower
Representative shall be deemed for all purposes to have been made by such
Borrower and shall be binding upon and enforceable against such Borrower to the
same extent as if the same had been made directly by such Borrower.
1.2. Letters of Credit. Subject to and in accordance with the terms
and conditions contained herein and in Annex B, Borrower Representative, on
behalf of the applicable Borrower, shall have the right to request, and
Revolving Lenders agree to incur, or purchase participations in, Letter of
Credit Obligations in respect of each Borrower.
1.3. Prepayments
(a) Reduction in Commitment. Borrowers may at any time on at least
five (5) days' prior written notice by Borrower Representative to Agent
voluntarily permanently reduce (but not terminate) the Revolving Loan
Commitment; provided that (A) any such reductions shall be in a minimum amount
of $5,000,000 and integral multiples of $1,000,000 in excess of such amount and
(B) the Revolving Loan Commitment shall not be reduced to an amount less than
the L/C Sublimit. In addition, Borrowers may at any time on at least ten (10)
days' prior written notice by Borrower Representative to Agent terminate the
Revolving Loan Commitment; provided that upon such termination, all Loans and
other Obligations shall be immediately due and payable in full and all Letters
of Credit Obligations shall be cash collateralized or otherwise satisfied in
accordance with Annex B hereto. Any voluntary reduction or termination of the
Revolving Loan Commitment must be accompanied by payment of the Fee required by
Section 1.9(c), if any, plus the payment of any LIBOR funding breakage costs in
accordance with Section 1.13(b). Upon any such prepayment and reduction or
termination of the Revolving Loan Commitment, each Borrower's right to request
Revolving Credit Advances, or request that Letter of Credit Obligations be
incurred on its behalf, shall simultaneously be permanently reduced or
terminated, as the case may be; provided that a permanent reduction of the
Revolving Loan Commitment shall not
3
<PAGE>
require a corresponding pro rata reduction in the L/C Sublimit. Each notice of
partial prepayment shall designate the Loans or other Obligations to which such
prepayment is to be applied.
(b) Mandatory Prepayments. (i) If at any time the outstanding
balance of the Revolving Loan exceeds the Maximum Amount (including by reason of
a reduction or termination of the Revolving Loan Commitment under Section
1.3(a)), Borrowers shall immediately repay the aggregate outstanding Revolving
Credit Advances to the extent required to eliminate such excess. If any such
excess remains after repayment in full of the aggregate outstanding Revolving
Credit Advances, Borrowers shall provide cash collateral for the Letter of
Credit Obligations in the manner set forth in Annex B to the extent required to
eliminate such excess.
(ii) Immediately upon receipt by any Credit Party of proceeds
of any asset disposition (including condemnation proceeds, but excluding
proceeds of asset dispositions permitted by Section 6.8(a)) or any sale of Stock
of any Subsidiary of any Credit Party, Borrowers shall prepay the Loans in an
amount equal to all such proceeds, net of (A) commissions and other reasonable
and customary transaction costs, fees and expenses properly attributable to such
transaction and payable by Borrowers in connection therewith (in each case, paid
to non-Affiliates), (B) transfer taxes, (C) amounts payable to holders of senior
Liens (to the extent such Liens constitute Permitted Encumbrances hereunder), if
any, and (D) an appropriate reserve for income taxes in accordance with GAAP in
connection therewith. Any such prepayment shall be applied in accordance with
Section 1.3(c).
(iii) If (x) Harvard or any Borrower issues Stock, and (y) if
a Default or Event of Default has occurred and is continuing on or prior to the
date of issuance of such Stock, then no later than the Business Day following
the date of receipt of the proceeds thereof, all Borrowers (in the case of an
issuance by Harvard) or the issuing Borrower shall prepay the Loans in an amount
equal to all such proceeds, net of underwriting discounts and commissions and
other reasonable costs paid to non-Affiliates in connection therewith. Any such
prepayment shall be applied in accordance with Section 1.3(c).
(c) Application of Certain Mandatory Prepayments. Any prepayments
made by any Borrower pursuant to clauses (b)(ii) or (b)(iii) above shall be
applied as follows: first, to Fees and reimbursable expenses of Agent then due
and payable pursuant to any of the Loan Documents; second to interest then due
and payable on Revolving Credit Advances made to Borrowers; third, to the
principal balance of Revolving Credit Advances outstanding to Borrowers until
the same has been paid in full; and last, to any Letter of Credit Obligations of
Borrowers to provide cash collateral therefor in the manner set forth in Annex
B. Such prepayments shall not reduce the amount of the Revolving Loan
Commitment.
(d) Application of Prepayments from Insurance Proceeds. Prepayments
from condemnation or insurance proceeds in accordance with Section 5.4(c) shall
be applied to the Revolving Credit Advances. The Revolving Loan Commitment shall
not be permanently reduced by the amount of such prepayments.
4
<PAGE>
(e) Nothing in this Section 1.3 shall be construed to constitute
Agent's or any Lender's consent to any transaction referred to in clauses
(b)(ii) and (b)(iii) above which is not permitted by other provisions of this
Agreement or the other Loan Documents.
1.4. Use of Proceeds. Borrowers shall utilize the proceeds of the
Revolving Loan solely for the Refinancing (and to pay any related transaction
expenses), and for the financing of Permitted Acquisitions and Borrowers'
ordinary working capital and general corporate needs (but excluding in any event
the making of any Restricted Payment not specifically permitted by Sections 6.1
or 6.14). Disclosure Schedule (1.4) contains a description of Borrowers' sources
and uses of funds as of the Closing Date, including Loans and Letter of Credit
Obligations to be made or incurred on that date, and a funds flow memorandum
detailing how funds from each source are to be transferred to particular uses.
1.5. Interest and Applicable Margins. (a) Borrowers shall pay
interest to Agent, for the ratable benefit of Lenders in accordance with the
various Loans being made by each Lender, in arrears on each applicable Interest
Payment Date, at the following rates: with respect to the Revolving Credit
Advances, the Index Rate plus the Applicable Revolver Index Margin per annum or,
at the election of Borrower Representative, the applicable LIBOR Rate plus the
Applicable Revolver LIBOR Margin per annum, based on the aggregate Revolving
Credit Advances outstanding from time to time.
The Applicable Revolver Index Margin and Applicable Revolver LIBOR
Margin will be 1.25% and 2.50% per annum, respectively, as of the Closing Date.
The Applicable Margins will be adjusted (up or down) prospectively on a
quarterly basis as determined by Borrowers' consolidated financial performance,
commencing with the first day of the first calendar month that occurs more than
five (5) days after delivery of Borrowers' quarterly Financial Statements to
Lenders for each Fiscal Quarter commencing with the Fiscal Quarter ending March
31, 2000. Adjustments in Applicable Margins will be determined by reference to
the following grids:
DATE: IF EBITDA IS: LEVEL OF APPLICABLE MARGINS
3/31/00 =>$14,690,000 Level I
<$14,690,000 but=>$12,020,000 Level II
<12,020,000 Level III
6/30/00 =>$22,550,000 Level I
<$22,550,000 but=>$18,450,000 Level II
<$18,450,000 Level III
9/30/00 =>$29,370,000 Level I
<$29,370,000 but=>$24,030,000 Level II
<$24,030,000 Level III
5
<PAGE>
12/31/00 =>$31,070,000 Level I
<$31,070,000 but=>$25,420,000 Level II
<$25,420,000 Level III
3/31/01 =>$33,770,000 Level I
<$33,770,000 but=>$27,630,000 Level II
<$27,630,000 Level III
6/30/01 =>$36,130,000 Level I
<$36,130,000 but=>$29,560,000 Level II
<$29,560,000 Level III
9/30/01 =>$38,170,000 Level I
<$38,170,000 but=>$31,230,000 Level II
<$31,230,000 Level III
Each of the foregoing calculations will be for the 12-month period then
ended (or with respect to the Fiscal Quarters ending on or before March 31, 2000
and June 30, 2000 for the 6-month and 9-month period, then ended).
Applicable Margins
------------------
Level I Level II Level III
------- -------- ---------
Applicable Revolver 1.00% 1.25% 1.50%
Index Margin
Applicable Revolver LIBOR 2.25% 2.50% 2.75%
Margin
If there is a disparity between the financial tests described above, the test
resulting in the greater level of Applicable Margins will prevail.
All adjustments in the Applicable Margins after March 31, 2000 shall
be implemented quarterly on a prospective basis, for each calendar month
commencing at least five (5) days after the date of delivery to Lenders of the
quarterly unaudited or annual audited (as applicable) Financial Statements
evidencing the need for an adjustment. Concurrently with the delivery of those
Financial Statements, Borrower Representative shall deliver to Agent and Lenders
a certificate, signed by its chief financial officer, setting forth in
reasonable detail the basis for the continuance of, or any change in, the
Applicable Margins. Failure to timely deliver such Financial Statements shall,
in addition to any other remedy provided for in this Agreement, result in an
increase in the Applicable Margins to the highest level set forth in the
foregoing grid, until the first day of the first calendar month following the
delivery of those Financial Statements demonstrating that such an increase is
not required. If a Default or Event of Default has occurred and is continuing at
the time any reduction in the Applicable Margins is to be implemented, that
reduction shall be deferred until the first day of the first calendar month
following the date on which such Default or Event of Default is waived or cured.
6
<PAGE>
(b) If any payment on any Loan becomes due and payable on a day
other than a Business Day, the maturity thereof will be extended to the next
succeeding Business Day (except as set forth in the definition of LIBOR Period)
and, with respect to payments of principal, interest thereon shall be payable at
the then applicable rate during such extension.
(c) All computations of Fees calculated on a per annum basis and
interest shall be made by Agent on the basis of a 360-day year, in each case for
the actual number of days occurring in the period for which such interest and
Fees are payable. The Index Rate shall be determined each day based upon the
Index Rate as in effect each day. Each determination by Agent of an interest
rate and Fees hereunder shall be conclusive, absent manifest error.
(d) So long as an Event of Default has occurred and is continuing
under Section 8.1(a), (h) or (i) or so long as any other Event of Default has
occurred and is continuing and at the election of Agent (or upon the written
request of Requisite Lenders) confirmed by written notice from Agent to Borrower
Representative, the interest rates applicable to the Loans and the Letter of
Credit Fees shall be increased by two percentage points (2%) per annum above the
rates of interest or the rate of such Fees otherwise applicable hereunder
("Default Rate"), and all outstanding Obligations shall bear interest at the
Default Rate applicable to such Obligations. Interest and Letter of Credit Fees
at the Default Rate shall accrue from the initial date of such Event of Default
until that Event of Default is cured or waived and shall be payable upon demand.
(e) Subject to the conditions precedent set forth in Section 2.2,
Borrower Representative shall have the option to (i) request that any Revolving
Credit Advance be made as a LIBOR Loan, (ii) convert at any time all or any part
of outstanding Loans from Index Rate Loans to LIBOR Loans, (iii) convert any
LIBOR Loan to an Index Rate Loan, subject to payment of LIBOR breakage costs in
accordance with Section 1.13(b) if such conversion is made prior to the
expiration of the LIBOR Period applicable thereto, or (iv) continue all or any
portion of any Loan as a LIBOR Loan upon the expiration of the applicable LIBOR
Period and the succeeding LIBOR Period of that continued Loan shall commence on
the first day after the last day of the LIBOR Period of the Loan to be
continued. Any Loan or group of Loans having the same proposed LIBOR period to
be made or continued as, or converted into, a LIBOR Loan must be in a minimum
amount of $5,000,000 and integral multiples of $1,000,000 in excess of such
amount. Any such election must be made by noon (New York time) on the third
(3rd) Business Day prior to (1) the date of any proposed Advance which is to
bear interest at the LIBOR Rate, (2) the end of each LIBOR Period with respect
to any LIBOR Loans to be continued as such, or (3) the date on which Borrower
Representative wishes to convert any Index Rate Loan to a LIBOR Loan for a LIBOR
Period designated by Borrower Representative in such election. If no election is
received with respect to a LIBOR Loan by noon (New York time) on the third (3rd)
Business Day prior to the end of the LIBOR Period with respect thereto (or if a
Default or an Event of Default has occurred and is continuing or if the
additional conditions precedent set forth in Section 2.2 shall not have been
satisfied), that LIBOR Loan shall be converted to an Index Rate Loan at the end
of its LIBOR Period. Borrower Representative must make such election by notice
to Agent
7
<PAGE>
in writing, by telecopy or overnight courier. In the case of any conversion or
continuation, such election must be made pursuant to a written notice (a "Notice
of Conversion/Continuation") in the form of Exhibit 1.5(e).
(f) Notwithstanding anything to the contrary set forth in this
Section 1.5, if a court of competent jurisdiction determines in a final order
that the rate of interest payable hereunder exceeds the highest rate of interest
permissible under law (the "Maximum Lawful Rate"), then so long as the Maximum
Lawful Rate would be so exceeded, the rate of interest payable hereunder shall
be equal to the Maximum Lawful Rate; provided, however, that if at any time
thereafter the rate of interest payable hereunder is less than the Maximum
Lawful Rate, Borrowers shall continue to pay interest hereunder at the Maximum
Lawful Rate until such time as the total interest received by Agent, on behalf
of Lenders, is equal to the total interest that would have been received had the
interest rate payable hereunder been (but for the operation of this paragraph)
the interest rate payable since the Closing Date as otherwise provided in this
Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of
interest and in the manner provided in Sections 1.5(a) through (e) unless and
until the rate of interest again exceeds the Maximum Lawful Rate, and at that
time this paragraph shall again apply. In no event shall the total interest
received by any Lender pursuant to the terms hereof exceed the amount that such
Lender could lawfully have received had the interest due hereunder been
calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum
Lawful Rate is calculated pursuant to this paragraph, such interest shall be
calculated at a daily rate equal to the Maximum Lawful Rate divided by the
number of days in the year in which such calculation is made. If,
notwithstanding the provisions of this Section 1.5(f), a court of competent
jurisdiction shall finally determine that a Lender has received interest
hereunder in excess of the Maximum Lawful Rate, Agent shall, to the extent
permitted by applicable law, promptly apply such excess in the order specified
in Section 1.11 and thereafter shall refund any excess to Borrowers or as a
court of competent jurisdiction may otherwise order.
1.6. INTENTIONALLY OMITTED.
1.7. INTENTIONALLY OMITTED.
1.8. Cash Management Systems. On or prior to the Closing Date,
Borrowers will establish and will maintain until the Termination Date, the cash
management systems described in Annex C (the "Cash Management Systems").
1.9. Fees. (a) Borrowers shall pay to GE Capital, individually, the
Fees specified in the GE Capital Fee Letter, at the times specified for payment
therein.
(b) As additional compensation for the Revolving Lenders, Borrowers
shall pay to Agent, for the ratable benefit of such Lenders, in arrears, on the
first Business Day of each month prior to the Commitment Termination Date and on
the Commitment Termination Date, a fee for Borrowers' non-use of available funds
in an amount equal to three-eighths of one percent (0.375%) per annum
(calculated on the basis of a 360 day year for actual days elapsed) multiplied
by the difference between (x) the Maximum
8
<PAGE>
Amount (as it may be reduced from time to time) and (y) the average for the
period of the daily closing balances of the aggregate Revolving Loan outstanding
during the period for which such Fee is due.
(c) If Borrowers prepay the Revolving Loan and terminate the
Revolving Loan Commitment, whether voluntarily or involuntarily and whether
before or after acceleration of the Obligations, Borrowers shall pay to Agent,
for the benefit of Lenders as liquidated damages and compensation for the costs
of being prepared to make funds available hereunder an amount equal to the
Applicable Percentage (as defined below) multiplied by the amount of the
Revolving Loan Commitment. As used herein, the term "Applicable Percentage"
shall mean (x) one and one-half percent (1.50%), in the case of termination on
or prior to the first anniversary of the Closing Date and (y) one-half of one
percent (0.50%), in the case of termination after the first anniversary of the
Closing Date but on or prior to the second anniversary thereof.
(d) Borrowers shall pay to Agent, for the ratable benefit of
Required Lenders, the Letter of Credit Fee as provided in Annex B.
1.10. Receipt of Payments. Borrowers shall make each payment under
this Agreement not later than 2:00 p.m. (New York time) on the day when due in
immediately available funds in Dollars to the Collection Account. For purposes
of computing interest and Fees as of any date, all payments shall be deemed
received on the Business Day of receipt of immediately available funds therefor
in the Collection Account prior to 2:00 p.m. New York time. Payments received
after 2:00 p.m. New York time on any Business Day shall be deemed to have been
received on the following Business Day.
1.11. Application and Allocation of Payments. (a) So long as no
Default or Event of Default has occurred and is continuing, (i) payments
received in the ordinary course of business shall be applied to the Revolving
Loan; (ii) voluntary prepayments shall be applied as determined by Borrower
Representative, subject to the provisions of Section 1.3(a); and (iii) mandatory
prepayments shall be applied as set forth in Sections 1.3(c) and 1.3(d). All
payments and prepayments applied to a particular Loan shall be applied ratably
to the portion thereof held by each Lender as determined by its Pro Rata Share.
As to each other payment, and as to all payments made when a Default or Event of
Default has occurred and is continuing or following the Commitment Termination
Date, each Borrower hereby irrevocably waives the right to direct the
application of any and all payments received from or on behalf of such Borrower,
and each Borrower hereby irrevocably agrees that Agent shall have the continuing
exclusive right to apply any and all such payments against the Obligations of
Borrowers as Agent may deem advisable notwithstanding any previous entry by
Agent in the Loan Account or any other books and records. In the absence of a
specific determination by Agent with respect thereto, payments shall be applied
to amounts then due and payable in the following order: (1) to Fees and Agent's
expenses reimbursable hereunder; (2) to interest on the Loans, ratably in
proportion to the interest accrued as to each Loan; (3) to principal payments on
the other Loans and to provide cash collateral for Letter of Credit Obligations
in the manner described in Annex B, ratably to the aggregate, combined principal
balance of the other Loans and outstanding Letter of Credit Obligations; and (4)
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to all other Obligations including expenses of Lenders to the extent
reimbursable under Section 11.3.
(b) Agent is authorized to, and at its sole election may, charge to
the Revolving Loan balance on behalf of each Borrower and cause to be paid all
Fees, expenses, Charges, costs (including insurance premiums in accordance with
Section 5.4(a)) and interest and principal, other than principal of the
Revolving Loan, owing by Borrowers under this Agreement or any of the other Loan
Documents if and to the extent Borrowers fail to promptly pay any such amounts
as and when due.
1.12. Loan Account and Accounting. Agent shall maintain a loan
account (the "Loan Account") on its books to record: all Advances, all payments
made by Borrowers, and all other debits and credits as provided in this
Agreement with respect to the Loans or any other Obligations. All entries in the
Loan Account shall be made in accordance with Agent's customary accounting
practices as in effect from time to time. The balance in the Loan Account, as
recorded on Agent's most recent printout or other written statement, shall,
absent manifest error, be presumptive evidence of the amounts due and owing to
Agent and Lenders by each Borrower; provided that any failure to so record or
any error in so recording shall not limit or otherwise affect any Borrower's
duty to pay the Obligations. Agent shall render to Borrower Representative a
monthly accounting of transactions with respect to the Loans setting forth the
balance of the Loan Account. Unless Borrower Representative notifies Agent in
writing of any objection to any such accounting (specifically describing the
basis for such objection), within thirty (30) days after the date thereof, each
and every such accounting shall (absent manifest error) be deemed final, binding
and conclusive upon Borrowers in all respects as to all matters reflected
therein. Only those items expressly objected to in such notice shall be deemed
to be disputed by Borrowers. Notwithstanding any provision herein contained to
the contrary, any Lender may elect (which election may be revoked) to dispense
with the issuance of Notes to that Lender and may rely on the Loan Account as
evidence of the amount of Obligations from time to time owing to it.
1.13. Indemnity. (a) Each Credit Party that is a signatory hereto
shall jointly and severally indemnify and hold harmless each of Agent, Lenders
and their respective Affiliates, and each such Person's respective officers,
directors, employees, attorneys, agents and representatives (each, an
"Indemnified Person"), from and against any and all suits, actions, proceedings,
claims, damages, losses, liabilities and expenses (including reasonable
attorneys' fees and disbursements and other costs of investigation or defense,
including those incurred upon any appeal) that may be instituted or asserted
against or incurred by any such Indemnified Person as the result of credit
having been extended, suspended or terminated under this Agreement and the other
Loan Documents and the administration of such credit, and in connection with or
arising out of the transactions contemplated hereunder and thereunder and any
actions or failures to act in connection therewith, including any and all
Environmental Liabilities and legal costs and expenses arising out of or
incurred in connection with disputes between or among any parties to any of the
Loan Documents (collectively, "Indemnified Liabilities"); provided, that no such
Credit Party shall be liable for any indemnification to an Indemnified Person to
the extent that any such suit, action, proceeding, claim, damage, loss,
liability or expense results from that Indemnified Person's gross negligence or
willful misconduct.
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NO INDEMNIFIED PERSON SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO ANY
LOAN DOCUMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON
OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR
INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF CREDIT HAVING BEEN EXTENDED, SUSPENDED OR TERMINATED UNDER ANY LOAN
DOCUMENT OR AS A RESULT OF ANY OTHER TRANSACTION CONTEMPLATED HEREUNDER OR
THEREUNDER.
(b) To induce Lenders to provide the LIBOR Rate option on the terms
provided herein, if (i) any LIBOR Loans are repaid in whole or in part prior to
the last day of any applicable LIBOR Period (whether that repayment is made
pursuant to any provision of this Agreement or any other Loan Document or occurs
as a result of acceleration, by operation of law or otherwise); (ii) any
Borrower shall default in payment when due of the principal amount of or
interest on any LIBOR Loan; (iii) any then Borrower shall default in making any
borrowing of, conversion into or continuation of LIBOR Loans after Borrower
Representative has given notice requesting the same in accordance herewith; or
(iv) any Borrower shall fail to make any prepayment of a LIBOR Loan after
Borrower Representative has given a notice thereof in accordance herewith, then
Borrowers shall jointly and severally indemnify and hold harmless each Lender
from and against all losses, costs and expenses resulting from or arising from
any of the foregoing. Such indemnification shall include any loss (including
loss of margin) or expense arising from the reemployment of funds obtained by it
or from fees payable to terminate deposits from which such funds were obtained.
For the purpose of calculating amounts payable to a Lender under this
subsection, each Lender shall be deemed to have actually funded its relevant
LIBOR Loan through the purchase of a deposit bearing interest at the LIBOR Rate
in an amount equal to the amount of that LIBOR Loan and having a maturity
comparable to the relevant LIBOR Period; provided, that each Lender may fund
each of its LIBOR Loans in any manner it sees fit, and the foregoing assumption
shall be utilized only for the calculation of amounts payable under this
subsection. This covenant shall survive the termination of this Agreement and
the payment of the Notes and all other amounts payable hereunder. As promptly as
practicable under the circumstances, each Lender shall provide Borrower
Representative with its written calculation of all amounts payable pursuant to
this Section 1.13(b), and such calculation shall be binding on the parties
hereto unless Borrower Representative shall object in writing within ten (10)
Business Days of receipt thereof, specifying the basis for such objection in
detail.
1.14. Access. Each Credit Party that is a party hereto shall, during
normal business hours, from time to time upon one (1) Business Day's prior
notice as frequently as Agent determines to be appropriate: (a) provide Agent
and any of its officers, employees and agents access to its properties,
facilities, advisors and employees (including officers) of each Credit Party and
to the Collateral, (b) permit Agent, and any of its officers, employees and
agents, to inspect, audit and make extracts from any Credit Party's books and
records, and (c) permit Agent, and its officers, employees and agents, to
inspect, review, evaluate and make test verifications and counts of the
Accounts, Inventory and other Collateral of any Credit Party. If a
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Default or Event of Default has occurred and is continuing or if access is
necessary to preserve or protect the Collateral as determined by Agent, each
such Credit Party shall provide such access to Agent and to each Lender at all
times and without advance notice. Furthermore, so long as any Event of Default
has occurred and is continuing, Borrowers shall provide Agent and each Lender
with access to their suppliers and customers. Each Credit Party shall make
available to Agent and its counsel, as quickly as is possible under the
circumstances, originals or copies of all books and records that Agent may
request. Each Credit Party shall deliver any document or instrument necessary
for Agent, as it may from time to time request, to obtain records from any
service bureau or other Person that maintains records for such Credit Party, and
shall maintain duplicate records or supporting documentation on media, including
computer tapes and discs owned by such Credit Party. Agent will give Lenders at
least ten (10) days' prior written notice of regularly scheduled audits.
Representatives of other Lenders may accompany Agent's representatives on
regularly scheduled audits at no charge to Borrowers.
1.15. Taxes. (a) Any and all payments by each Borrower hereunder
(including any payments made pursuant to Section 12) or under the Notes shall be
made, in accordance with this Section 1.15, free and clear of and without
deduction for any and all present or future Taxes. If any Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder (including any sum payable pursuant to Section 12) or under the Notes,
(i) the sum payable shall be increased as much as shall be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 1.15) Agent or Lenders, as
applicable, receive an amount equal to the sum they would have received had no
such deductions been made, (ii) such Borrower shall make such deductions, and
(iii) such Borrower shall pay the full amount deducted to the relevant taxing or
other authority in accordance with applicable law. Within thirty (30) days after
the date of any such payment of Taxes, Borrower Representative shall furnish to
Agent the original or a certified copy of a receipt evidencing payment thereof,
if any such receipt shall have been obtained.
(b) Each Credit Party that is a signatory hereto shall jointly and
severally indemnify and, within ten (10) days of demand therefor, pay Agent and
each Lender for the full amount of Taxes (including any Taxes imposed by any
jurisdiction on amounts payable under this Section 1.15) paid by Agent or such
Lender, as appropriate, and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto, whether or not such Taxes
were correctly or legally asserted.
(c) Each Lender organized under the laws of a jurisdiction outside
the United States (a "Foreign Lender") as to which payments to be made under
this Agreement or under the Notes are exempt from United States withholding tax
under an applicable statute or tax treaty shall provide to Borrower
Representative and Agent a properly completed and executed IRS Form 4224 or Form
1001 or other applicable form, certificate or document prescribed by the IRS or
the United States certifying as to such Foreign Lender's entitlement to such
exemption (a "Certificate of Exemption"). Any foreign Person that seeks to
become a Lender under this Agreement shall provide a Certificate of Exemption to
Borrower Representative and Agent prior to becoming a Lender hereunder. No
foreign Person may become a Lender hereunder if such Person fails to deliver a
Certificate of Exemption.
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1.16. Capital Adequacy; Increased Costs; Illegality. (a) If any
Lender shall have determined that any law, treaty, governmental (or
quasi-governmental) rule, regulation, guideline or order regarding capital
adequacy, reserve requirements or similar requirements or compliance by any
Lender with any request or directive regarding capital adequacy, reserve
requirements or similar requirements (whether or not having the force of law),
in each case, adopted after the Closing Date, from any central bank or other
Governmental Authority increases or would have the effect of increasing the
amount of capital, reserves or other funds required to be maintained by such
Lender and thereby reducing the rate of return on such Lender's capital as a
consequence of its obligations hereunder, then Borrowers shall from time to time
upon demand by such Lender (with a copy of such demand to Agent) pay to Agent,
for the account of such Lender, additional amounts sufficient to compensate such
Lender for such reduction. A certificate as to the amount of that reduction and
showing the basis of the computation thereof submitted by such Lender to
Borrower Representative and to Agent shall, absent manifest error, be final,
conclusive and binding for all purposes.
(b) If, due to either (i) the introduction of or any change in any
law or regulation (or any change in the interpretation thereof) or (ii) the
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), in each case
adopted after the Closing Date, there shall be any increase in the cost to any
Lender of agreeing to make or making, funding or maintaining any Loan, then
Borrowers shall from time to time, upon demand by such Lender (with a copy of
such demand to Agent), pay to Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost. A
certificate as to the amount of such increased cost, submitted to Borrower
Representative and to Agent by such Lender, shall be conclusive and binding on
Borrowers for all purposes, absent manifest error. Each Lender agrees that, as
promptly as practicable after it becomes aware of any circumstances referred to
above that would result in any such increased cost, the affected Lender shall,
to the extent not inconsistent with such Lender's internal policies of general
application, use reasonable commercial efforts to minimize costs and expenses
incurred by it and payable to it by Borrowers pursuant to this Section 1.16(b).
(c) Notwithstanding anything to the contrary contained herein, if
the introduction of or any change in any law or regulation (or any change in the
interpretation thereof) shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Lender to agree
to make or to make or to continue to fund or maintain any LIBOR Loan, then,
unless that Lender is able to make or to continue to fund or to maintain such
LIBOR Loan at another branch or office of that Lender without, in that Lender's
opinion, adversely affecting it or its Loans or the income obtained therefrom,
on notice thereof and demand therefor by such Lender to Borrower Representative
through Agent, (i) the obligation of such Lender to agree to make or to make or
to continue to fund or maintain LIBOR Loans shall terminate and (ii) each
Borrower shall forthwith prepay in full all outstanding LIBOR Loans owing by
such Borrower to such Lender, together with interest accrued thereon, unless
Borrower Representative on behalf of such Borrower, within five (5) Business
Days after the delivery of such notice and demand, converts all LIBOR Loans into
Index Rate Loans.
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(d) Replacement of Lender in Respect of Increased Costs. Within
fifteen (15) days after receipt by Borrower Representative of written notice and
demand from any Lender (an "Affected Lender") for payment of additional amounts
or increased costs as provided in Sections 1.15(a), 1.16(a) or 1.16(b), Borrower
Representative may, at its option, notify Agent and such Affected Lender of its
intention to replace the Affected Lender. So long as no Default or Event of
Default has occurred and is continuing, Borrower Representative, with the
consent of Agent, may obtain, at Borrowers' expense, a replacement Lender
("Replacement Lender") for the Affected Lender, which Replacement Lender must be
satisfactory to Agent. If Borrowers obtain a Replacement Lender within ninety
(90) days following notice of their intention to do so, the Affected Lender must
sell and assign its Loans and Commitments to such Replacement Lender for an
amount equal to the principal balance of all Loans held by the Affected Lender
and all accrued interest and Fees with respect thereto through the date of such
sale, provided that Borrowers shall have reimbursed such Affected Lender for the
additional amounts or increased costs that it is entitled to receive under this
Agreement through the date of such sale and assignment.
Notwithstanding the foregoing, Borrowers shall not have the right to obtain a
Replacement Lender if the Affected Lender rescinds its demand for increased
costs or additional amounts within fifteen (15) days following its receipt of
Borrowers' notice of intention to replace such Affected Lender. Furthermore, if
Borrowers give a notice of intention to replace and do not so replace such
Affected Lender within ninety (90) days thereafter, Borrowers' rights under this
Section 1.16(d) shall terminate and Borrowers shall promptly pay all increased
costs or additional amounts demanded by such Affected Lender pursuant to
Sections 1.15(a), 1.16(a) and 1.16(b).
2. CONDITIONS PRECEDENT
2.1. Conditions to the Initial Loans. No Lender shall be obligated
to make any Loan or incur any Letter of Credit Obligations on the Closing Date,
or to take, fulfill, or perform any other action hereunder, until the following
conditions have been satisfied or provided for in a manner satisfactory to
Agent, or waived in writing by Agent and Lenders:
(a) Credit Agreement; Loan Documents. This Agreement or counterparts
hereof shall have been duly executed by, and delivered to, Borrowers, Agent and
Lenders; and Agent shall have received such documents, instruments, agreements
and legal opinions as Agent shall reasonably request in connection with the
transactions contemplated by this Agreement and the other Loan Documents,
including all those listed in the Closing Checklist attached hereto as Annex D,
each in form and substance satisfactory to Agent.
(b) Repayment of Prior Lender Obligations; Satisfaction of
Outstanding L/Cs. (i) Agent shall have received a fully executed original of a
pay-off letter satisfactory to Agent confirming that all of the Prior Lender
Obligations will be repaid in full from the proceeds of the Acquisition and all
Liens upon any of the property of Borrowers or any of their Subsidiaries in
favor of Prior Lender shall be terminated by Prior Lender immediately upon such
payment; and (ii) all letters of credit issued or
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guaranteed by Prior Lender shall have been cash collateralized, supported by a
guaranty of Agent or supported by a Letter of Credit issued pursuant to Annex B,
as mutually agreed upon by Agent, Borrowers and Prior Lender.
(c) Approvals. Agent shall have received (i) satisfactory evidence
that the Credit Parties have obtained all required consents and approvals of all
Persons including all requisite Governmental Authorities, to the execution,
delivery and performance of this Agreement and the other Loan Documents and the
consummation of the Related Transactions or (ii) an officer's certificate in
form and substance satisfactory to Agent affirming that no such consents or
approvals are required.
(d) INTENTIONALLY OMITTED.
(e) Payment of Fees. Borrowers shall have paid the Fees required to
be paid on the Closing Date in the respective amounts specified in Section 1.9
(including the Fees specified in the GE Capital Fee Letter), and shall have
reimbursed Agent for all fees, costs and expenses of closing presented as of the
Closing Date.
(f) Capital Structure: Other Indebtedness. The capital structure of
each Credit Party and the terms and conditions of all Indebtedness of each
Credit Party shall be acceptable to Agent in its sole discretion.
(g) Consummation of Related Transactions. The Acquisition shall have
been consummated in accordance with the terms of the Acquisition Agreement and
the Prior Lender Obligations shall have been repaid in full.
2.2. Further Conditions to Each Loan. Except as otherwise expressly
provided herein, no Lender shall be obligated to fund any Advance, convert or
continue any Advance as a LIBOR Loan or incur any Letter of Credit Obligation,
if, as of the date thereof:
(a) Any representation or warranty by any Credit Party contained
herein or in any other Loan Document shall be untrue or incorrect as of such
date, except to the extent that such representation or warranty expressly
relates to an earlier date and except for changes therein expressly permitted or
expressly contemplated by this Agreement and Agent or Requisite Lenders have
determined not to make such Advance, convert or continue any Loan as a LIBOR
Loan or incur such Letter of Credit Obligation as a result of the fact that such
warranty or representation is untrue or incorrect; or
(b) Any event or circumstance having a Material Adverse Effect has
occurred since the date hereof as determined by the Requisite Lenders and Agent
or Requisite Lenders have determined not to make such Advance, convert or
continue any Loan as a LIBOR Loan or incur such Letter of Credit Obligation as a
result of the fact that such warranty or representation is untrue or incorrect;
or
(c) Any Default or Event of Default has occurred and is continuing
or would result after giving effect to any Loan (or the incurrence of any Letter
of Credit Obligation), and Agent or Requisite Lenders shall have determined not
to make any
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Advance, convert or continue any Loan as a LIBOR Loan or incur any Letter of
Credit Obligation so long as that Default is continuing; or
(d) After giving effect to any Advance (or the incurrence of any
Letter of Credit Obligations), the outstanding principal amount of the aggregate
Revolving Loan would exceed the Maximum Amount.
The request and acceptance by any Borrower of the proceeds of any Loan, the
incurrence of any Letter of Credit Obligations or the conversion or continuation
of any Loan into, or as, a LIBOR Loan, as the case may be, shall be deemed to
constitute, as of the date of such request, acceptance or incurrence, (i) a
representation and warranty by Borrowers that the conditions in this Section 2.2
have been satisfied and (ii) a reaffirmation by Borrowers of the cross-guaranty
provisions set forth in Section 12 and of the granting and continuance of
Agent's Liens, on behalf of itself and Lenders, pursuant to the Collateral
Documents.
3. REPRESENTATIONS AND WARRANTIES
To induce Lenders to make the Loans and to incur Letter of Credit
Obligations, the Credit Parties executing this Agreement, jointly and severally,
make the following representations and warranties to Agent and each Lender with
respect to all Credit Parties, each and all of which shall survive the execution
and delivery of this Agreement.
3.1. Corporate Existence; Compliance with Law. Each Credit Party (a)
is a corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of incorporation; (b) is duly qualified to conduct
business and is in good standing in each other jurisdiction where its ownership
or lease of property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not result in exposure to
losses, damages or liabilities in excess of $50,000; (c) has the requisite
corporate power and authority and the legal right to own, pledge, mortgage or
otherwise encumber and operate its properties, to lease the property it operates
under lease and to conduct its business as now, heretofore and proposed to be
conducted; (d) subject to specific representations regarding Environmental Laws,
has all material licenses, permits, consents or approvals from or by, and has
made all filings with, and has given all notices to, all Governmental
Authorities having jurisdiction, to the extent required for such ownership,
operation and conduct; (e) is in compliance with its charter and by-laws; and
(f) subject to specific representations set forth herein regarding ERISA,
Environmental Laws, tax and other laws, is in compliance with all applicable
provisions of law, except where the failure to comply, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
3.2. Executive Offices; Collateral Locations; FEIN. As of the
Closing Date, the current location of each Credit Party's chief executive office
and the warehouse and premises at which any Collateral is located are set forth
in Disclosure Schedule (3.2), and none of such locations have changed within the
twelve (12) months preceding the Closing Date. In addition, Disclosure Schedule
(3.2) lists the federal employer identification number of each Credit Party.
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3.3. Corporate Power, Authorization, Enforceable Obligations. The
execution, delivery and performance by each Credit Party of the Loan Documents
to which it is a party and the creation of all Liens provided for therein: (a)
are within such Person's corporate power; (b) have been duly authorized by all
necessary or proper corporate and shareholder action; (c) do not contravene any
provision of such Person's charter or bylaws; (d) do not violate any law or
regulation, or any order or decree of any court or Governmental Authority; (e)
do not conflict with or result in the breach or termination of, constitute a
default under or accelerate or permit the acceleration of any performance
required by, any indenture, mortgage, deed of trust, lease, agreement or other
instrument to which such Person is a party or by which such Person or any of its
property is bound; (f) do not result in the creation or imposition of any Lien
upon any of the property of such Person other than those in favor of Agent, on
behalf of itself and Lenders, pursuant to the Loan Documents; and (g) do not
require the consent or approval of any Governmental Authority or any other
Person, except those referred to in Section 2.1(c), all of which will have been
duly obtained, made or complied with prior to the Closing Date. On or prior to
the Closing Date, each of the Loan Documents shall have been duly executed and
delivered by each Credit Party that is a party thereto and each such Loan
Document shall then constitute a legal, valid and binding obligation of such
Credit Party enforceable against it in accordance with its terms.
3.4. Financial Statements and Projections. Except for the
Projections, all Financial Statements concerning Harvard and its Subsidiaries
that are referred to below have been prepared in accordance with GAAP
consistently applied throughout the periods covered (except as disclosed therein
and except, with respect to unaudited Financial Statements, for the absence of
footnotes and normal year-end audit adjustments) and present fairly in all
material respects the financial position of the Persons covered thereby as at
the dates thereof and the results of their operations and cash flows for the
periods then ended.
(a) The following Financial Statements attached hereto as Disclosure
Schedule (3.4(A)) have been delivered on the date hereof:
(i) The audited consolidated balance sheets at September 30,
1998 and the related statements of income and cash flows of Harvard and its
Subsidiaries for the Fiscal Years then ended, certified by Arthur Andersen LLP.
(ii) The unaudited balance sheet(s) at June 30, 1999 and the
related statement(s) of income and cash flows of Harvard and its Subsidiaries
for the Third Fiscal Quarter then ended.
(b) Pro Forma. The Pro Forma delivered on the date hereof and
attached hereto as Disclosure Schedule (3.4(B)) was prepared by Borrowers giving
pro forma effect to the Related Transactions and the repayment of the 14 1/2%
Senior Notes due 2003, was based on the unaudited consolidated balance sheets of
Harvard and its Subsidiaries dated June 30, 1999, and was prepared in accordance
with GAAP, with only such adjustments thereto as would be required in accordance
with GAAP.
(c) Projections. The Projections delivered on the date hereof and
attached hereto as Disclosure Schedule (3.4(C)) have been prepared by Borrowers
in light
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of the past operations of their businesses, and reflect projections for the
Fiscal Quarter period beginning on October 1, 1999 on a quarterly basis for the
first year and on a year by year basis thereafter. The Projections are based
upon estimates and assumptions stated therein, all of which Borrowers believe to
be reasonable and fair in light of current conditions and current facts known to
Borrowers and, as of the Closing Date, reflect Borrowers' good faith and
reasonable estimates of the future financial performance of Borrowers and of the
other information projected therein for the period set forth therein, it being
recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount.
3.5. Material Adverse Effect. Between September 30, 1998 and the
Closing Date, (a) no Credit Party has incurred any obligations, contingent or
noncontingent liabilities, liabilities for Charges, long-term leases or unusual
forward or long-term commitments (x) prior to July 1, 1999 that are not
reflected in the Pro Forma and (y) on or after July 1, 1999 that were not
incurred in the ordinary course of business, and that in each case, alone or in
the aggregate, could reasonably be expected to have a Material Adverse Effect,
(b) no contract, lease or other agreement or instrument has been entered into by
any Credit Party or has become binding upon any Credit Party's assets and no law
or regulation applicable to any Credit Party has been adopted that has had or
could reasonably be expected to have a Material Adverse Effect, and (c) no
Credit Party is in default and to the best of Borrowers' knowledge no third
party is in default under any material contract, lease or other agreement or
instrument, that alone or in the aggregate could reasonably be expected to have
a Material Adverse Effect. Between September 30, 1998 and the Closing Date no
event has occurred, that alone or together with other events, could reasonably
be expected to have a Material Adverse Effect.
3.6. Ownership of Property; Liens. As of the Closing Date, the real
estate ("Real Estate") listed in Disclosure Schedule (3.6) constitutes all of
the real property owned, leased, subleased, or used by any Credit Party. Each
Credit Party owns good fee simple title to all of its owned Real Estate, and
valid and marketable leasehold interests in all of its leased Real Estate, all
as described in Disclosure Schedule (3.6), and copies of all such leases or a
summary of terms thereof satisfactory to Agent have been delivered to Agent.
Disclosure Schedule (3.6) further describes any Real Estate with respect to
which any Credit Party is a lessor, sublessor or assignor as of the Closing
Date. Each Credit Party also has good title to, or valid leasehold interests in,
all of its personal property and assets. As of the Closing Date, none of the
properties and assets of any Credit Party are subject to any Liens other than
Permitted Encumbrances, and there are no facts, circumstances or conditions
known to any Credit Party that may result in any Liens (including Liens arising
under Environmental Laws) other than Permitted Encumbrances. Each Credit Party
has received all deeds, assignments, waivers, consents, non-disturbance and
attornment or similar agreements, bills of sale and other documents, and has
duly effected all recordings, filings and other actions necessary to establish,
protect and perfect such Credit Party's right, title and interest in and to all
such Real Estate and other properties and assets. Disclosure Schedule (3.6) also
describes any purchase options, rights of first refusal or other similar
contractual rights pertaining to any Real Estate. As of the Closing Date, no
portion of any Credit Party's Real Estate has suffered any material damage by
fire or other casualty loss that has not heretofore been repaired and restored
in all material respects to its
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original condition or otherwise remedied. As of the Closing Date, all material
permits required to have been issued or appropriate to enable the Real Estate to
be lawfully occupied and used for all of the purposes for which it is currently
occupied and used have been lawfully issued and are in full force and effect.
3.7. Labor Matters. As of the Closing Date (a) no strikes or other
material labor disputes against any Credit Party are pending or, to any Credit
Party's knowledge, threatened; (b) hours worked by and payment made to employees
of each Credit Party comply with the Fair Labor Standards Act and each other
federal, state, local or foreign law applicable to such matters; (c) all
payments due from any Credit Party for employee health and welfare insurance
have been paid or accrued as a liability on the books of such Credit Party; (d)
except as set forth in Disclosure Schedule (3.7), no Credit Party is a party to
or bound by any collective bargaining agreement, management agreement,
consulting agreement, any employment agreement, bonus, stock option, or stock
appreciation plan or agreement (and true and complete copies of any agreements
described in Disclosure Schedule (3.7) have been delivered to Agent); (e) there
is no organizing activity involving any Credit Party pending or, to any Credit
Party's knowledge, threatened by any labor union or group of employees; (f)
there are no representation proceedings pending or, to any Credit Party's
knowledge, threatened with the National Labor Relations Board, and no labor
organization or group of employees of any Credit Party has made a pending demand
for recognition; and (g) except as set forth in Disclosure Schedule (3.7), there
are no complaints or charges against any Credit Party pending or, to the
knowledge of any Credit Party, threatened to be filed with any Governmental
Authority or arbitrator based on, arising out of, in connection with, or
otherwise relating to the employment or termination of employment by any Credit
Party of any individual.
3.8. Ventures, Subsidiaries and Affiliates; Outstanding Stock and
Indebtedness. Except as set forth in Disclosure Schedule (3.8), no Credit Party
has any Subsidiaries, is engaged in any joint venture or partnership with any
other Person, or is an Affiliate of any other Person. All of the issued and
outstanding Stock of each Credit Party is owned by each of the Stockholders and
in the amounts set forth in Disclosure Schedule (3.8). There are no outstanding
rights to purchase, options, warrants or similar rights or agreements pursuant
to which any Credit Party may be required to issue, sell, repurchase or redeem
any of its Stock or other equity securities or any Stock or other equity
securities of its Subsidiaries. All outstanding Indebtedness of each Credit
Party as of the Closing Date is described in Section 6.3 (including Disclosure
Schedule (6.3)).
3.9. Government Regulation. No Credit Party is an "investment
company" or an "affiliated person" of, or "promoter" or "principal underwriter"
for, an "investment company," as such terms are defined in the Investment
Company Act of 1940. No Credit Party is subject to regulation under the Public
Utility Holding Company Act of 1935, the Federal Power Act, or any other federal
or state statute that restricts or limits its ability to incur Indebtedness or
to perform its obligations hereunder. The making of the Loans by Lenders to
Borrowers, the incurrence of the Letter of Credit Obligations on behalf of
Borrowers, the application of the proceeds thereof and repayment thereof and the
consummation of the Related Transactions will not violate any provision of any
such statute or any rule, regulation or order issued by the Securities and
Exchange Commission.
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3.10. Margin Regulations. No Credit Party is engaged, nor will it
engage, principally or as one of its important activities, in the business of
extending credit for the purpose of "purchasing" or "carrying" any "margin
stock" as such terms are defined in Regulation U of the Federal Reserve Board as
now and from time to time hereafter in effect (such securities being referred to
herein as "Margin Stock"). No Credit Party owns any Margin Stock, and none of
the proceeds of the Loans or other extensions of credit under this Agreement
will be used, directly or indirectly, for the purpose of purchasing or carrying
any Margin Stock, for the purpose of reducing or retiring any Indebtedness that
was originally incurred to purchase or carry any Margin Stock or for any other
purpose that might cause any of the Loans or other extensions of credit under
this Agreement to be considered a "purpose credit" within the meaning of
Regulations T, U or X of the Federal Reserve Board. No Credit Party will take or
permit to be taken any action that might cause any Loan Document to violate any
regulation of the Federal Reserve Board.
3.11. Taxes. All tax returns, reports and statements, including
information returns, required by any Governmental Authority to be filed by any
Credit Party have been filed with the appropriate Governmental Authority and all
Charges have been paid prior to the date on which any fine, penalty, interest or
late charge may be added thereto for nonpayment thereof (or any such fine,
penalty, interest, late charge or loss has been paid), excluding Charges or
other amounts being contested in accordance with Section 5.2(b). Proper and
accurate amounts have been withheld by each Credit Party from its respective
employees for all periods in full and complete compliance with all applicable
federal, state, local and foreign laws and such withholding taxes have been
timely paid to the respective Governmental Authorities. Disclosure Schedule
(3.11) sets forth as of the Closing Date those taxable years for which any
Credit Party's tax returns are currently being audited by the IRS or any other
applicable Governmental Authority and any assessments or threatened assessments
in connection with such audit, or otherwise currently outstanding. Except as
described in Disclosure Schedule (3.11), no Credit Party has executed or filed
with the IRS or any other Governmental Authority any agreement or other document
extending, or having the effect of extending, the period for assessment or
collection of any Charges. None of the Credit Parties and their respective
predecessors are liable for any Charges: (a) under any agreement (including any
tax sharing agreements) or (b) to each Credit Party's knowledge, as a
transferee. As of the Closing Date, no Credit Party has agreed or been requested
to make any adjustment under IRC Section 481(a), by reason of a change in
accounting method or otherwise, that would have a Material Adverse Effect.
3.12. ERISA. (a) Disclosure Schedule (3.12) lists all Plans and
separately identifies all Pension Plans, including Title IV Plans, Multiemployer
Plans, ESOPs and Welfare Plans, including all Retiree Welfare Plans. Copies of
all such listed Plans, together with a copy of the latest form 5500 for each
such Plan, have been delivered to Agent. Except with respect to Multiemployer
Plans, each Qualified Plan has been determined by the IRS to qualify under
Section 401 of the IRC, and the trusts created thereunder have been determined
to be exempt from tax under the provisions of Section 501 of the IRC, and
nothing has occurred that would cause the loss of such qualification or
tax-exempt status. Each Plan is in compliance in all material respects with the
applicable provisions of ERISA and the IRC, including the timely filing of
IRS/DOL 5500-series form reports required under the IRC or ERISA. No Credit
Party or
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ERISA Affiliate has failed to make any contribution or pay any amount due as
required by either Section 412 of the IRC or Section 302 of ERISA or the terms
of any such Plan. No Credit Party or ERISA Affiliate has engaged in a
"prohibited transaction," as defined in Section 4975 of the IRC, in connection
with any Plan, that would subject any Credit Party to a material tax on
prohibited transactions imposed by Section 4975 of the IRC.
(b) Except as set forth in Disclosure Schedule (3.12) or matters
that could not reasonably be expected to have a Material Adverse Effect: (i) no
Title IV Plan has any Unfunded Pension Liability; (ii) no ERISA Event or event
described in Section 4062(e) of ERISA with respect to any Title IV Plan has
occurred or is reasonably expected to occur; (iii) there are no pending, or to
the knowledge of any Credit Party, threatened claims (other than claims for
benefits in the normal course), sanctions, actions or lawsuits, asserted or
instituted against any Plan or any Person as fiduciary or sponsor of any Plan;
(iv) no Credit Party or ERISA Affiliate has incurred or reasonably expects to
incur any liability as a result of a complete or partial withdrawal from a
Multiemployer Plan; (v) within the last five years no Title IV Plan of any
Credit Party or ERISA Affiliate has been terminated nor has any such Plan with
Unfunded Pension Liabilities been transferred outside of the "controlled group"
(within the meaning of Section 4001(a)(14) of ERISA) of any Credit Party or
ERISA Affiliate; and (vi) except in the case of any ESOP, Stock of all Credit
Parties and their ERISA Affiliates makes up, in the aggregate, no more than 10%
of the fair market value of the assets of any Plan; and (vii) no liability under
any Title IV Plan has been satisfied with the purchase of a contract from an
insurance company that is not rated AAA by the Standard & Poor's Corporation or
the equivalent by another nationally recognized rating agency.
3.13. No Litigation. No action, claim, lawsuit, demand,
investigation or proceeding is now pending or, to the knowledge of any Credit
Party, threatened against any Credit Party, before any Governmental Authority or
before any arbitrator or panel of arbitrators (collectively, "Litigation"), that
(a) challenges any Credit Party's right or power to enter into or perform any of
its obligations under the Loan Documents to which it is a party, or the validity
or enforceability of any Loan Document or any action taken thereunder, or (b)
has a reasonable risk of being determined adversely to any Credit Party and
which, if so determined, could have a Material Adverse Effect. Except as set
forth in Disclosure Schedule (3.13), as of the Closing Date there is no
Litigation pending or threatened which seeks damages in excess of $500,000 or
injunctive relief against, or alleges criminal misconduct of, any Credit Party.
3.14. Brokers. No broker or finder acting on behalf of any Credit
Party or Affiliate thereof brought about the obtaining, making or closing of the
Loans or the Related Transactions other than Lehman Brothers, and no Credit
Party or Affiliate thereof has any obligation to any Person in respect of any
finder's or brokerage fees in connection therewith other than the fee in the
amount of $2,000,000 payable to Lehman Brothers.
3.15. Intellectual Property. As of the Closing Date, each Credit
Party owns or has rights to use all Intellectual Property necessary to continue
to conduct its business as now or heretofore conducted by it or proposed to be
conducted by it, and each Patent, Trademark, Copyright and License is listed,
together with application or registration numbers, as applicable, in Disclosure
Schedule (3.15) hereto. Except for matters that could not reasonably be
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expected to have a Material Adverse Effect, each Credit Party conducts its
business and affairs without infringement of or interference with any
Intellectual Property of any other Person. Except as set forth in Disclosure
Schedule (3.15), no Credit Party is aware of any infringement claim by any other
Person with respect to any Intellectual Property.
3.16. Full Disclosure. No information contained in this Agreement,
any of the other Loan Documents, any Projections, Financial Statements or
Collateral Reports or other reports from time to time delivered hereunder or any
written statement furnished by or on behalf of any Credit Party to Agent or any
Lender pursuant to the terms of this Agreement contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact necessary to make the statements contained herein or therein not misleading
in light of the circumstances under which they were made. The Liens granted to
Agent, on behalf of itself and Lenders, pursuant to the Collateral Documents
will at all times be fully perfected first priority Liens in and to the
Collateral described therein, subject, as to priority, only to Permitted
Encumbrances with respect to the Collateral other than Accounts.
3.17. Environmental Matters. (a) Except as set forth in Disclosure
Schedule (3.17), as of the Closing Date: (i) the Real Estate is free of
contamination from any Hazardous Material except for such contamination that
would not adversely impact the value or marketability of such Real Estate and
that would not result in Environmental Liabilities that could reasonably be
expected to exceed $350,000; (ii) no Credit Party has caused or suffered to
occur any Release of Hazardous Materials on, at, in, under, above, to, from or
about any of its Real Estate; (iii) the Credit Parties are and have been in
compliance with all Environmental Laws, except for such noncompliance that would
not result in Environmental Liabilities that could reasonably be expected to
exceed $350,000; (iv) the Credit Parties have obtained, and are in compliance
with, all Environmental Permits required by Environmental Laws for the
operations of their respective businesses as presently conducted or as proposed
to be conducted, except where the failure to so obtain or comply with such
Environmental Permits would not result in Environmental Liabilities that could
reasonably be expected to exceed $350,000, and all such Environmental Permits
are valid, uncontested and in good standing; (v) no Credit Party is involved in
operations or knows of any facts, circumstances or conditions, including any
Releases of Hazardous Materials, that are likely to result in any Environmental
Liabilities of such Credit Party that could reasonably be expected to exceed
$350,000, and no Credit Party has permitted any current or former tenant or
occupant of the Real Estate to engage in any such operations; (vi) there is no
Litigation arising under or related to any Environmental Laws, Environmental
Permits or Hazardous Material that seeks damages, penalties, fines, costs or
expenses in excess of $350,000 or injunctive relief, or that alleges criminal
misconduct by any Credit Party; (vii) no notice has been received by any Credit
Party identifying it as a "potentially responsible party" or requesting
information under CERCLA or analogous state statutes, and to the knowledge of
the Credit Parties, there are no facts, circumstances or conditions that may
result in any Credit Party being identified as a "potentially responsible party"
under CERCLA or analogous state statutes; and (viii) the Credit Parties have
provided to Agent copies of all existing environmental reports, reviews and
audits and all written information pertaining to actual or potential
Environmental Liabilities, in each case relating to any Credit Party.
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(b) Each Credit Party hereby acknowledges and agrees that Agent (i)
is not now, and has not ever been, in control of any of the Real Estate or any
Credit Party's affairs, and (ii) does not have the capacity through the
provisions of the Loan Documents or otherwise to influence any Credit Party's
conduct with respect to the ownership, operation or management of any of its
Real Estate or compliance with Environmental Laws or Environmental Permits.
3.18. Insurance. Disclosure Schedule (3.18) lists all insurance
policies of any nature maintained, as of the Closing Date, for current
occurrences by each Credit Party, as well as a summary of the terms of each such
policy.
3.19. Deposit and Disbursement Accounts. Disclosure Schedule (3.19)
lists all banks and other financial institutions at which any Credit Party
maintains deposits or other accounts as of the Closing Date, including any
Disbursement Accounts, and such Schedule correctly identifies the name, address
and telephone number of each depository, the name in which the account is held,
a description of the purpose of the account, and the complete account number
therefor.
3.20. Government Contracts. Except as set forth in Disclosure
Schedule (3.20), as of the Closing Date, no Credit Party is a party to any
contract or agreement with any Governmental Authority and no Credit Party's
Accounts are subject to the Federal Assignment of Claims Act (31 U.S.C. Section
3727) or any similar state or local law.
3.21. Customer and Trade Relations. As of the Closing Date, there
exists no actual or, to the knowledge of any Credit Party, threatened
termination or cancellation of, or any material adverse modification or change
in: the business relationship of any Credit Party with any customer or group of
customers whose purchases during the preceding twelve (12) months caused them to
be ranked among the ten largest customers of such Credit Party; or the business
relationship of any Credit Party with any supplier material to its operations.
3.22. Agreements and Other Documents. As of the Closing Date, each
Credit Party has provided to Agent or its counsel, on behalf of Lenders,
accurate and complete copies (or summaries) of all of the following agreements
or documents to which any it is subject and each of which is listed in
Disclosure Schedule (3.22): the seven (7) largest (by dollar amount) supply
agreements and purchase agreements not terminable by such Credit Party within
sixty (60) days following written notice issued by such Credit Party; leases of
Equipment having a remaining term of one year or longer and requiring aggregate
rental and other payments in excess of $500,000 per annum; licenses and permits
held by the Credit Parties, the absence of that could be reasonably likely to
have a Material Adverse Effect; instruments and documents evidencing
Indebtedness of such Credit Party and any Lien granted by such Credit Party with
respect thereto; and instruments and agreements evidencing the issuance of any
equity securities, warrants, rights or options to purchase equity securities of
such Credit Party.
3.23. Solvency. Both before and after giving effect to (a) the Loans
and Letter of Credit Obligations to be made or incurred on the Closing Date or
such other date as Loans and Letter of Credit Obligations requested hereunder
are made or incurred, (b) the disbursement of the proceeds of such Loans
pursuant to the instructions of Borrower
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Representative, (c) the Acquisition, the Refinancing and the consummation of the
other Related Transactions and (d) the payment and accrual of all transaction
costs in connection with the foregoing, the Credit Parties are and will be
Solvent on a consolidated basis.
3.24. Year 2000 Representations.
Any reprogramming required to permit the proper functioning, in any
following the year 2000, of (i) the Borrowers' computer systems and (ii)
equipment containing embedded microchips (including systems and equipment
supplied by others or with which the Borrowers' systems interface) and the
testing of all such systems and equipment, as so reprogrammed, has been
completed. Each Credit Party has eliminated all Year 2000 Problems, except where
the failure to correct the same could not reasonably be expected to have a
Material Adverse Effect, individually or in the aggregate.
4. FINANCIAL STATEMENTS AND INFORMATION
4.1. Reports and Notices. (a) Each Credit Party executing this
Agreement hereby agrees that from and after the Closing Date and until the
Termination Date, it shall deliver to Agent or to Agent and Lenders, as
required, the Financial Statements, notices, Projections and other information
at the times, to the Persons and in the manner set forth in Annex E.
(b) Each Credit Party executing this Agreement hereby agrees that
from and after the Closing Date and until the Termination Date, it shall deliver
to Agent or to Agent and Lenders, as required, the various Collateral Reports at
the times, to the Persons and in the manner set forth in Annex F.
4.2. Communication with Accountants. Each Credit Party executing
this Agreement authorizes Agent and, so long as a Default or Event of Default
has occurred and is continuing, each Lender, to communicate directly with its
independent certified public accountants including Arthur Andersen LLP, and
authorizes and at Agent's request shall instruct those accountants and advisors
to disclose and make available to Agent and each Lender any and all Financial
Statements and other supporting financial documents, schedules and information
relating to any Credit Party (including copies of any issued management letters)
with respect to the business, financial condition and other affairs of any
Credit Party.
5. AFFIRMATIVE COVENANTS
Each Credit Party executing this Credit Agreement jointly and
severally agrees as to all Credit Parties that from and after the date hereof
and until the Termination Date:
5.1. Maintenance of Existence and Conduct of Business. Each Credit
Party shall: do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and its rights and franchises;
continue to conduct its business substantially as now conducted or as otherwise
permitted hereunder; at all times maintain, preserve and protect all of its
assets and properties used or useful in the conduct of its business, and keep
the same in good repair, working order and condition in all material respects
(taking into consideration ordinary wear and tear) and from time to time make,
or cause to be made, all
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necessary or appropriate repairs, replacements and improvements thereto
consistent with industry practices; and transact business only in such corporate
and trade names as are set forth in Disclosure Schedule (5.1).
5.2. Payment of Obligations. (a) Subject to Section 5.2(b), each
Credit Party shall pay and discharge or cause to be paid and discharged promptly
all Charges payable by it, including (i) Charges imposed upon it, its income and
profits, or any of its property (real, personal or mixed) and all Charges with
respect to tax, social security and unemployment withholding with respect to its
employees, (ii) lawful claims for labor, materials, supplies and services or
otherwise, before any thereof shall become past due, and (iii) all storage or
rental charges payable to warehousemen and bailees, in each case.
(b) Each Credit Party may in good faith contest, by appropriate
proceedings, the validity or amount of any Charges described in Section 5.2(a);
provided, that (i) adequate reserves with respect to such contest are maintained
on the books of such Credit Party, in accordance with GAAP; (ii) no Lien shall
be imposed to secure payment of such Charges that is superior to any of the
Liens securing the Obligations and such contest is maintained and prosecuted
continuously and with diligence and operates to suspend collection or
enforcement of such Charges; (iii) none of the Collateral becomes subject to
forfeiture or loss as a result of such contest; (iv) such Credit Party shall
promptly pay or discharge such contested Charges or claims and all additional
charges, interest, penalties and expenses, if any, and shall deliver to Agent
evidence acceptable to Agent of such compliance, payment or discharge, if such
contest is terminated or discontinued adversely to such Credit Party or the
conditions set forth in this Section 5.2(b) are no longer met; and (v) Agent has
not advised Borrowers in writing that Agent reasonably believes that nonpayment
or nondischarge thereof could have or result in a Material Adverse Effect.
5.3. Books and Records. Each Credit Party shall keep adequate books
and records with respect to its business activities in which proper entries,
reflecting all financial transactions, are made in accordance with GAAP and on a
basis consistent with the Financial Statements attached as Disclosure Schedule
(3.4(A)).
5.4. Insurance; Damage to or Destruction of Collateral. (a) The
Credit Parties shall, at their sole cost and expense, maintain the policies of
insurance described in Disclosure Schedule (3.18) as in effect on the date
hereof or otherwise in form and amounts and with insurers acceptable to Agent.
If any Credit Party at any time or times hereafter shall fail to obtain or
maintain any of the policies of insurance required above or to pay all premiums
relating thereto, Agent may at any time or times thereafter obtain and maintain
such policies of insurance and pay such premiums and take any other action with
respect thereto that Agent deems advisable. Agent shall have no obligation to
obtain insurance for any Credit Party or pay any premiums therefor. By doing so,
Agent shall not be deemed to have waived any Default or Event of Default arising
from any Credit Party's failure to maintain such insurance or pay any premiums
therefor. All sums so disbursed, including attorneys' fees, court costs and
other charges related thereto, shall be
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payable on demand by Borrowers to Agent and shall be additional Obligations
hereunder secured by the Collateral.
(b) Agent reserves the right at any time upon any change in any
Credit Party's risk profile (including any change in the product mix maintained
by any Credit Party or any laws affecting the potential liability of such Credit
Party) to require additional forms and limits of insurance to, in Agent's
opinion, adequately protect both Agent's and Lender's interests in all or any
portion of the Collateral and to ensure that each Credit Party is protected by
insurance in amounts and with coverage customary for its industry. If requested
by Agent, each Credit Party shall deliver to Agent from time to time a report of
a reputable insurance broker, satisfactory to Agent, with respect to its
insurance policies.
(c) Each Borrower shall deliver to Agent, in form and substance
satisfactory to Agent, endorsements to (i) all "All Risk" and business
interruption insurance naming Agent, on behalf of itself and Lenders, as loss
payee, and (ii) all general liability and other liability policies naming Agent,
on behalf of itself and Lenders, as additional insured. Each Borrower
irrevocably makes, constitutes and appoints Agent (and all officers, employees
or agents designated by Agent), so long as any Default or Event of Default has
occurred and is continuing or the anticipated insurance proceeds exceed
$250,000, as such Borrower's true and lawful agent and attorney-in-fact for the
purpose of making, settling and adjusting claims under such "All Risk" policies
of insurance, endorsing the name of such Borrower on any check or other item of
payment for the proceeds of such "All Risk" policies of insurance and for making
all determinations and decisions with respect to such "All Risk" policies of
insurance. Agent shall have no duty to exercise any rights or powers granted to
it pursuant to the foregoing power-of-attorney. Borrower Representative shall
promptly notify Agent of any loss, damage, or destruction to the Collateral in
the amount of $250,000 or more, whether or not covered by insurance. After
deducting from such proceeds the expenses, if any, incurred by Agent in the
collection or handling thereof, Agent shall apply such proceeds to the reduction
of the Obligations in accordance with Section 1.3(d) and, so long as no Default
or Event of Default shall have occurred and be continuing, Agent shall permit
the applicable Borrower to reborrow such money, or any part thereof, to replace,
repair, restore or rebuild the Collateral in a diligent and expeditious manner
with materials and workmanship of substantially the same quality as existed
before the loss, damage or destruction in accordance with the provisions of this
Section. In any event, if the casualty giving rise to such insurance proceeds
could not reasonably be expected to have a Material Adverse Effect and such
insurance proceeds do not exceed $250,000 in the aggregate, Agent shall permit
the applicable Borrower to replace, restore, repair or rebuild the property;
provided that if such Borrower shall not have completed or entered into binding
agreements to complete such replacement, restoration, repair or rebuilding
within 180 days of such casualty, Agent may apply such insurance proceeds to the
Obligations in accordance with Section 1.3(d). All insurance proceeds which are
to be made available to any Borrower to replace, repair, restore or rebuild the
Collateral shall be applied by Agent to reduce the outstanding principal balance
of the Revolving Loans (which application shall not result in a permanent
reduction of the Revolving Loan Commitment) and upon such application, Agent
shall establish a Reserve in an amount
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equal to the amount of such proceeds so applied. Thereafter, such funds shall be
made available to that Borrower to provide funds to replace, repair, restore or
rebuild the Collateral as follows: (i) Borrower Representative shall request a
Revolving Credit Advance be made to such Borrower in the amount requested to be
released; (ii) so long as the conditions set forth in Section 2.2 have been met,
Revolving Lenders shall make such Revolving Credit Advance; and (iii) in the
case of insurance proceeds applied against the Revolving Loan, the Reserve
established with respect to such insurance proceeds shall be reduced by the
amount of such Revolving Credit Advance. To the extent not used to replace,
repair, restore or rebuild the Collateral, such insurance proceeds shall be
applied in accordance with Section 1.3(d).
5.5. Compliance with Laws. Each Credit Party shall comply with all
federal, state, local and foreign laws and regulations applicable to it,
including those relating to ERISA and labor matters and Environmental Laws and
Environmental Permits, except to the extent that the failure to comply,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
5.6. Supplemental Disclosure. From time to time as may be requested
by Agent (which request will not be made more frequently than once each year
absent the occurrence and continuance of a Default or an Event of Default), the
Credit Parties shall supplement each Disclosure Schedule hereto, or any
representation herein or in any other Loan Document, with respect to any matter
hereafter arising which, if existing or occurring at the date of this Agreement,
would have been required to be set forth or described in such Disclosure
Schedule or as an exception to such representation or which is necessary to
correct any information in such Disclosure Schedule or representation which has
been rendered inaccurate thereby (and, in the case of any supplements to any
Disclosure Schedule, such Disclosure Schedule shall be appropriately marked to
show the changes made therein); provided that (a) no such supplement to any such
Disclosure Schedule or representation shall be or be deemed a waiver of any
Default or Event of Default resulting from the matters disclosed therein, except
as consented to by Agent and Requisite Lenders in writing and (b) no supplement
shall be required or permitted as to representations and warranties that relate
solely to the Closing Date.
5.7. Intellectual Property. Each Credit Party will conduct its
business and affairs without infringement of or interference with any
Intellectual Property of any other Person in any material respect.
5.8. Environmental Matters. Each Credit Party shall and shall cause
each Person within its control to: (a) conduct its operations and keep and
maintain its Real Estate in compliance with all Environmental Laws and
Environmental Permits other than noncompliance that could not reasonably be
expected to have a Material Adverse Effect; (b) implement any and all
investigation, remediation, removal and response actions which are appropriate
or necessary to maintain the value and marketability of the Real Estate or to
otherwise comply with Environmental Laws and Environmental Permits pertaining to
the presence, generation, treatment, storage, use, disposal, transportation or
Release of any Hazardous Material on, at, in, under, above, to, from or about
any of its Real Estate; (c) notify Agent promptly after such Credit Party
becomes aware of any violation of Environmental Laws or Environmental Permits or
any Release on, at, in, under, above, to, from or about any Real
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Estate that is reasonably likely to result in Environmental Liabilities in
excess of $350,000; and (d) promptly forward to Agent a copy of any order,
notice, request for information or any communication or report received by such
Credit Party in connection with any such violation or Release or any other
matter relating to any Environmental Laws or Environmental Permits that could
reasonably be expected to result in Environmental Liabilities in excess of
$350,000, in each case whether or not the Environmental Protection Agency or any
Governmental Authority has taken or threatened any action in connection with any
such violation, Release or other matter. If Agent at any time has a reasonable
basis to believe that there may be a violation of any Environmental Laws or
Environmental Permits by any Credit Party or any Environmental Liability arising
thereunder, or a Release of Hazardous Materials on, at, in, under, above, to,
from or about any of its Real Estate, that, in each case, could reasonably be
expected to have a Material Adverse Effect, then each Credit Party shall, upon
Agent's written request (i) cause the performance of such environmental audits
including subsurface sampling of soil and groundwater, and preparation of such
environmental reports, at Borrowers' expense, as Agent may from time to time
reasonably request, which shall be conducted by reputable environmental
consulting firms reasonably acceptable to Agent and shall be in form and
substance acceptable to Agent, and (ii) permit Agent or its representatives to
have access to all Real Estate for the purpose of conducting such environmental
audits and testing as Agent deems appropriate, including subsurface sampling of
soil and groundwater. Borrowers shall reimburse Agent for the costs of such
audits and tests and the same will constitute a part of the Obligations secured
hereunder.
5.9. Landlords' Agreements, Mortgagee Agreements and Bailee Letters.
Each Credit Party shall obtain a landlord's agreement, mortgagee agreement or
bailee letter, as applicable, from the lessor of each leased property, mortgagee
of owned property or bailee with respect to any warehouse, processor or
converter facility or other location where Collateral is stored or located,
which agreement or letter shall contain a waiver or subordination of all Liens
or claims that the landlord, mortgagee or bailee may assert against the
Collateral at that location, and shall otherwise be satisfactory in form and
substance to Agent. After the Closing Date, no real property or warehouse space
shall be leased by any Credit Party and no Inventory shall be shipped to a
processor or converter under arrangements established after the Closing Date
without the prior written consent of Agent (which consent, in Agent's
discretion, may be conditioned upon the establishment of Reserves acceptable to
Agent) or, unless and until a satisfactory landlord agreement or bailee letter,
as appropriate, shall first have been obtained with respect to such location.
Each Credit Party shall timely and fully pay and perform its obligations under
all leases and other agreements with respect to each leased location or public
warehouse where any Collateral is or may be located. If any Credit Party
proposes to acquire a fee ownership interest in Real Estate after the Closing
Date, it shall first provide to Agent a mortgage or deed of trust, environmental
audits, mortgage title insurance commitment, survey, and if required by Agent,
supplemental casualty insurance and flood insurance, all in form and substance
satisfactory to Agent.
5.10. INTENTIONALLY OMITTED.
5.11. Further Assurances. Each Credit Party executing this Agreement
agrees that it shall and shall cause each other Credit Party to, at such Credit
Party's expense and upon request of Agent, duly execute and deliver, or cause to
be duly executed and delivered, to
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Agent such further instruments and do and cause to be done such further acts as
may be necessary or proper in the reasonable opinion of Agent to carry out more
effectively the provisions and purposes of this Agreement or any other Loan
Document.
6. NEGATIVE COVENANTS
Each Credit Party executing this Agreement jointly and severally
agrees as to all Credit Parties that, without the prior written consent of Agent
and the Requisite Lenders, from and after the date hereof until the Termination
Date:
6.1. Mergers, Subsidiaries, Etc. No Credit Party shall directly or
indirectly, by operation of law or otherwise, (a) form or acquire any
Subsidiary, or (b) merge with, consolidate with, acquire all or substantially
all of the assets or Stock of, or otherwise combine with or acquire, any Person,
except that any Borrower may merge with another Borrower, provided that Borrower
Representative shall be the survivor of any such merger to which it is a party.
Notwithstanding the foregoing, any Borrower may acquire all or substantially all
of the assets of any Person (the "Target") (in each case, a "Permitted
Acquisition") subject to the satisfaction of each of the following conditions:
(i) Agent shall receive at least thirty (30) Business Days'
prior written notice of such proposed Permitted Acquisition, which notice shall
include a reasonably detailed description of such proposed Permitted
Acquisition;
(ii) such Permitted Acquisition shall only involve assets
located in the United States and/or Canada and comprising a business, or those
assets of a business, of the type engaged in by Borrowers as of the Closing
Date, or businesses reasonably related or ancillary thereto, and which business
would not subject Agent or any Lender to regulatory or third party approvals in
connection with the exercise of its rights and remedies under this Agreement or
any other Loan Documents other than approvals applicable to the exercise of such
rights and remedies with respect to Borrowers prior to such Permitted
Acquisition;
(iii) such Permitted Acquisition shall be consensual and shall
have been approved by the Target's board of directors;
(iv) no additional Indebtedness, Guaranteed Indebtedness,
contingent obligations or other liabilities shall be incurred, assumed or
otherwise be reflected on a consolidated balance sheet of Borrowers and Target
after giving effect to such Permitted Acquisition, except (A) Loans made
hereunder, (B) ordinary course trade payables, accrued expenses and unsecured
Indebtedness of the Target to the extent no Default or Event of Default shall
have occurred and be continuing or would result after giving effect to such
Permitted Acquisition and (C) purchase money debt and Capital Lease Obligations
incurred in the ordinary course of business (to the extent permitted under
Section 6.7 hereof) and assumed mortgage debt (to the extent permitted under
Section 6.3 hereof);
(v) the business and assets acquired in such Permitted
Acquisition shall be free and clear of all Liens (other than Permitted
Encumbrances) and Liens securing Indebtedness permitted under clause (iv)(C);
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(vi) at or prior to the closing of any Permitted Acquisition,
Agent will be granted a first priority perfected Lien (subject to Permitted
Encumbrances) in all assets acquired pursuant thereto, except with respect to
assets subject to Liens permitted under clause (v), and Borrowers and the Target
shall have executed such documents and taken such actions as may be required by
Agent in connection therewith;
(vii) concurrently with delivery of the notice referred to in
clause (i) above, Borrowers shall have delivered to Agent, in form and substance
satisfactory to Agent:
(A) a pro forma consolidated balance sheet, income
statement and cash flow statement of Harvard and its Subsidiaries
(the "Acquisition Pro Forma"), based on recent financial statements,
which shall be complete and shall fairly present in all material
respects the assets, liabilities, financial condition and results of
operations of Harvard and its Subsidiaries in accordance with GAAP
consistently applied, but taking into account such Permitted
Acquisition and the funding of all Loans in connection therewith,
and such Acquisition Pro Forma shall reflect that on a pro forma
basis, no Event of Default shall have occurred and be continuing or
would result after giving effect to such Permitted Acquisition and
Borrowers would have been in compliance with the financial covenants
set forth in Annex G for the four quarter period reflected in the
Compliance Certificate most recently delivered to Agent pursuant to
Annex E prior to the consummation of such Permitted Acquisition
(giving effect to such Permitted Acquisition and all Loans funded in
connection therewith as if made on the first day of such period);
(B) updated versions of the most recently delivered
Projections covering the one (1) year period commencing on the date
of such Permitted Acquisition and otherwise prepared in accordance
with the Projections (the "Acquisition Projections") and based upon
historical financial data of a recent date satisfactory to Agent,
taking into account such Permitted Acquisition; and
(C) a certificate of the chief financial officer of
Harvard and each Borrower to the effect that: (w) Credit Parties on
a consolidated basis (after taking into consideration all rights of
contribution and indemnity each Credit Party has against Harvard and
each other Subsidiary of Harvard) will be Solvent upon the
consummation of the Permitted Acquisition; (x) the Acquisition Pro
Forma (which shall not be dated more than 45 days prior to the
Permitted Acquisition) fairly presents the financial condition of
Harvard and Borrowers (on a consolidated basis) as of the date
thereof after giving effect to the Permitted Acquisition; (y) the
Acquisition Projections are reasonable estimates of the future
financial performance of Harvard and Borrowers subsequent to the
date thereof based upon the historical performance of Harvard,
Borrowers and the Target and show that Harvard and Borrowers shall
continue to be in compliance with the financial covenants set forth
in Annex G until the
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Termination Date, it being recognized by the Lenders that such
financial information as it relates to future events is not to be
viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected
results set forth therein by a material amount, and (z) Harvard and
Borrowers have completed their due diligence investigation with
respect to the Target and such Permitted Acquisition, which
investigation was conducted in a manner similar to that which would
have been conducted by a prudent purchaser of a comparable business
and the results of which investigation were delivered to Agent and
Lenders;
(viii) on or prior to the date of such Permitted Acquisition,
Agent shall have received, in form and substance satisfactory to Agent, copies
of the acquisition agreement and related agreements and instruments, and all
opinions, certificates, lien search results and other documents reasonably
requested by Agent; and
(ix) at the time of such Permitted Acquisition and after
giving effect thereto, no Default or Event of Default shall have occurred and be
continuing.
6.2. Investments; Loans and Advances. Except as otherwise expressly
permitted by this Section 6, no Credit Party shall make or permit to exist any
investment in, or make, accrue or permit to exist loans or advances of money to,
any Person, through the direct or indirect lending of money, holding of
securities or otherwise, except that: (a) Borrowers may hold investments
comprised of notes payable, or stock or other securities issued by Account
Debtors to any Borrower pursuant to negotiated agreements with respect to
settlement of such Account Debtor's Accounts in the ordinary course of business,
so long as the aggregate amount of such Accounts so settled by Borrowers does
not exceed $1,000,000; (b) each Credit Party may maintain its existing
investments in its Subsidiaries as of the Closing Date; (c) Borrowers may make
investments not to exceed $1,000,000 in the aggregate in the existing joint
ventures set forth on Disclosure Schedule 6.2, subject to no Default or Event of
Default existing prior to or after giving effect to the proposed investment; (d)
so long as outstanding Revolving Credit Advances do not exceed $5,000,000,
Borrowers may make and maintain investments in (i) marketable direct obligations
issued or unconditionally guaranteed by the United States of America or any
agency thereof maturing within one year from the date of acquisition thereof,
(ii) commercial paper maturing no more than one year from the date of creation
thereof and currently having the highest rating obtainable from either Standard
& Poor's Ratings Group or Moody's Investors Service, Inc., (iii) certificates of
deposit, maturing no more than one year from the date of creation thereof,
issued by commercial banks incorporated under the laws of the United States of
America, each having combined capital, surplus and undivided profits of not less
than $300,000,000 and having a senior unsecured rating of "A" or better by a
nationally recognized rating agency (an "A Rated Bank"), (iv) time deposits,
maturing no more than 30 days from the date of creation thereof with A Rated
Banks and (v) mutual funds that invest solely in one or more of the investments
described in clauses (i) through (iv) above; and (e) loans to another Borrower
in accordance with Section 6.3(a)(vii).
6.3. Indebtedness. (a) No Credit Party shall create, incur, assume
or permit to exist any Indebtedness, except (without duplication) (i)
Indebtedness secured
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by purchase money security interests and Capital Leases permitted in Section
6.7(c), (ii) the Loans and the other Obligations, (iii) existing Indebtedness
described in Disclosure Schedule (6.3) and refinancings thereof or amendments or
modifications thereto that do not have the effect of increasing the principal
amount thereof or changing the amortization thereof (other than to extend the
same) and that are otherwise on terms and conditions no less favorable to any
Credit Party, Agent or any Lender, as determined by Agent, than the terms of the
Indebtedness being refinanced, amended or modified, (iv) Indebtedness
specifically permitted under Section 6.1 or Section 6.17, (v) Indebtedness of up
to $1,500,000 in the aggregate incurred in connection with assuming a mortgage
in connection with a Permitted Acquisition, (vi) Indebtedness of Trim Trends
Canada Ltd. in an aggregate amount not to exceed $2,000,000 at any time
outstanding, (vii) Indebtedness consisting of intercompany loans and advances
made by any Borrower to any other Borrower, provided that (A) each Borrower
shall have executed and delivered to each other Borrower, on the Closing Date, a
demand note (collectively, the "Intercompany Note") to evidence any such
intercompany Indebtedness owing at any time by such Borrower to such other
Borrowers which Intercompany Note shall be in form and substance satisfactory to
Agent and shall be pledged and delivered to Agent pursuant to the applicable
Pledge Agreement or Security Agreement as additional collateral security for the
Obligations; (B) each Borrower shall record all intercompany transactions on its
books and records in a manner satisfactory to Agent; (C) the obligations of each
Borrower under any such Intercompany Note shall be subordinated to the
Obligations of such Borrower hereunder in a manner satisfactory to Agent; (D) at
the time any such intercompany loan or advance is made by any Borrower to any
other Borrower and after giving effect thereto, Borrowers on a consolidated
basis shall be Solvent; and (E) no Default or Event of Default would occur and
be continuing after giving effect to any such proposed intercompany loan; and
(viii) other unsecured Indebtedness in an aggregate principal amount not to
exceed $500,000 at any time outstanding.
(b) No Credit Party shall, directly or indirectly, voluntarily
purchase, redeem, defease or prepay any principal of, premium, if any, interest
or other amount payable in respect of any Indebtedness, other than (i) the
Obligations, and (ii) Indebtedness secured by a Permitted Encumbrance if the
asset securing such Indebtedness has been sold or otherwise disposed of in
accordance with Section 6.8(a).
6.4. Employee Loans and Affiliate Transactions. (a) Except as
otherwise expressly permitted in this Section 6 with respect to Affiliates, no
Credit Party shall enter into or be a party to any transaction with any other
Credit Party or any Affiliate thereof except in the ordinary course of and
pursuant to the reasonable requirements of such Credit Party's business and upon
fair and reasonable terms that are no less favorable to such Credit Party than
would be obtained in a comparable arm's length transaction with a Person not an
Affiliate of such Credit Party. In addition, if any such transaction or series
of related transactions involves payments in excess of $2,000,000 in the
aggregate, the terms of these transactions must be disclosed in advance to Agent
and Lenders. All such transactions existing as of the date hereof are described
in Disclosure Schedule (6.4(a)).
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(b) No Credit Party shall enter into any lending or borrowing
transaction with any employees of any Credit Party, except loans to its
respective employees on an arm's-length basis in the ordinary course of business
consistent with past practices for travel expenses, relocation costs and similar
purposes up to a maximum of $500,000 in the aggregate at any one time
outstanding.
6.5. Capital Structure and Business. No Credit Party shall (a) make
any changes in any of its business objectives, purposes or operations that could
in any way adversely affect the repayment of the Loans or any of the other
Obligations or could reasonably be expected to have or result in a Material
Adverse Effect, (b) make any change in its capital structure as described in
Disclosure Schedule (3.8), including the issuance of any shares of Stock,
warrants or other securities convertible into Stock or any revision of the terms
of its outstanding Stock; except that (1) Harvard may issue shares of its common
stock and warrants or options relating thereto so long as (i) the proceeds
thereof are applied in prepayment of the Obligations as required by Section
1.3(b)(iii), and (ii) no Change of Control occurs after giving effect thereto
and (2) that any Credit Party in existence on the Closing Date may merge with
and into any other Credit Party, or (c) amend its charter or bylaws in a manner
that would adversely affect Agent or Lenders or such Credit Party's duty or
ability to repay the Obligations. No Credit Party shall engage in any business
other than the businesses currently engaged in by it or businesses reasonably
related thereto.
6.6. Guaranteed Indebtedness. No Credit Party shall create, incur,
assume or permit to exist any Guaranteed Indebtedness except (a) by endorsement
of instruments or items of payment for deposit to the general account of any
Credit Party, and (b) for Guaranteed Indebtedness incurred for the benefit of
any other Credit Party if the primary obligation is expressly permitted by this
Agreement.
6.7. Liens. No Credit Party shall create, incur, assume or permit to
exist any Lien on or with respect to its Accounts or any of its other properties
or assets (whether now owned or hereafter acquired) except for (a) Permitted
Encumbrances; (b) Liens in existence on the date hereof and summarized in
Disclosure Schedule (6.7); (c) Liens permitted pursuant to Section 6.1(v)
hereof; and (d) Liens created after the date hereof by conditional sale or other
title retention agreements (including Capital Leases) or in connection with
purchase money Indebtedness with respect to Equipment and Fixtures acquired by
any Credit Party in the ordinary course of business, involving the incurrence of
an aggregate amount of purchase money Indebtedness and Capital Lease Obligations
of not more than $2,500,000 outstanding at any one time for all such Liens
(provided that such Liens attach only to the assets subject to such purchase
money debt and such Indebtedness is incurred within twenty (20) days following
such purchase and does not exceed 100% of the purchase price of the subject
assets). In addition, no Credit Party shall become a party to any agreement,
note, indenture or instrument, or take any other action, that would prohibit the
creation of a Lien on any of its properties or other assets in favor of Agent,
on behalf of itself and Lenders, as additional collateral for the Obligations,
except operating leases, Capital Leases or Licenses which prohibit Liens upon
the assets that are subject thereto.
6.8. Sale of Stock and Assets. (a) No Credit Party shall sell,
transfer, convey, assign or otherwise dispose of any of its properties or other
assets, including the Stock of
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any of its Subsidiaries (whether in a public or a private offering or otherwise)
or any of its Accounts, other than (i) the sale of Inventory in the ordinary
course of business and (ii the sale, transfer, conveyance or other disposition
by a Credit Party of Equipment, Fixtures or Real Estate having a value not
exceeding $2,500,000 in the aggregate for all Credit Parties during the term of
this Agreement (such amount to be calculated based upon the greater of (x) the
book value of such Equipment, Fixtures or Real Estate and (y) the amount set
forth on the Appraisal (if applicable), and (iii) the sales of Borrowers'
locations located at Farmington Hills, Michigan, Salem, South Carolina, Bolivar,
Tennessee and Ripley, Tennessee provided that the proceeds of such sales are
remitted to Agent to be used to repay the outstanding Revolving Loan in
accordance with Section 1.3(c). With respect to any disposition of assets or
other properties permitted pursuant to clauses (ii) and (iii) above, Agent
agrees on reasonable prior written notice to release its Lien on such assets or
other properties in order to permit the applicable Credit Party to effect such
disposition and shall execute and deliver to Borrowers, at Borrowers' expense,
appropriate UCC-3 termination statements and other releases as reasonably
requested by Borrowers.
(b) In the event that Borrowers request that Agent permit Borrowers
to sell any properties or assets not otherwise permitted by Section 6.8(a), if
Agent gives such consent, and Agent shall be under no obligation whatsoever to
do so, the proceeds of such sales shall be used to repay the outstanding
Revolving Loan in accordance with Section 1.3(c), but, unless Agent otherwise
agrees, the Maximum Amount shall be permanently reduced by an amount equal to
the value of the assets or properties which are sold, such value to be equal to
the greater of (i) the book value of such assets and (ii) the amount set forth
on the Appraisal (if applicable).
6.9. ERISA. No Credit Party shall, or shall cause or permit any
ERISA Affiliate to, cause or permit to occur an event that could result in the
imposition of a Lien under Section 412 of the IRC or Section 302 or 4068 of
ERISA or cause or permit to occur an ERISA Event to the extent such ERISA Event
could reasonably be expected to have a Material Adverse Effect.
6.10. Financial Covenants. Borrowers shall not breach or fail to
comply with any of the Financial Covenants.
6.11. Hazardous Materials. No Credit Party shall cause or permit a
Release of any Hazardous Material on, at, in, under, above, to, from or about
any of the Real Estate where such Release would (a) violate in any respect, or
form the basis for any Environmental Liabilities under, any Environmental Laws
or Environmental Permits or (b) otherwise adversely impact the value or
marketability of any of the Real Estate or any of the Collateral, other than
such violations or Environmental Liabilities that could not reasonably be
expected to have a Material Adverse Effect.
6.12. Sale-Leasebacks. No Credit Party shall engage in any
sale-leaseback, synthetic lease or similar transaction involving any of its
assets.
6.13. Cancellation of Indebtedness. No Credit Party shall cancel any
claim or debt owing to it, except for reasonable consideration negotiated on an
arm's-length basis and in the ordinary course of its business consistent with
past practices.
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6.14. Restricted Payments. No Credit Party shall make any Restricted
Payment, except (a) intercompany loans and advances between Borrowers to the
extent permitted by Section 6.3, (b) dividends and distributions by Subsidiaries
of any Borrower paid to such Borrower, (c) employee loans permitted under
Section 6.4(b) and (d) so long as no Default or Event of Default shall have
occurred and be continuing or would occur after giving effect to such
repurchase, Harvard may repurchase shares of capital stock of Harvard or options
to acquire shares of capital stock of Harvard issued to officers, directors,
employees or consultants of Harvard or any of its Subsidiaries (upon the death
or cessation of employment of such officers, directors, employees or
consultants), but not in excess of $5,000,000 in the aggregate.
6.15. Change of Corporate Name or Location; Change of Fiscal Year.
No Credit Party shall (a) change its corporate name, or (b) change its chief
executive office, principal place of business, corporate offices or warehouses
or locations at which Collateral is held or stored, or the location of its
records concerning the Collateral, in each case without at least thirty (30)
days prior written notice to Agent and after Agent's written acknowledgment that
any reasonable action requested by Agent in connection therewith, including to
continue the perfection of any Liens in favor of Agent, on behalf of Lenders, in
any Collateral, has been completed or taken, and provided that any such new
location shall be in the continental United States of America. Without limiting
the generality of the foregoing, no Credit Party shall change its name, identity
or corporate structure in any manner that might make any financing or
continuation statement filed in connection herewith seriously misleading within
the meaning of Section 9-402(7) of the Code or any other then applicable
provision of the Code except upon prior written notice to Agent and Lenders and
after Agent's written acknowledgment that any reasonable action requested by
Agent in connection therewith, including to continue the perfection of any Liens
in favor of Agent, on behalf of Lenders, in any Collateral, has been completed
or taken. No Credit Party shall change its Fiscal Year.
6.16. No Impairment of Intercompany Transfers. No Credit Party shall
directly or indirectly enter into or become bound by any agreement, instrument,
indenture or other obligation (other than this Agreement and the other Loan
Documents) that could directly or indirectly restrict, prohibit or require the
consent of any Person with respect to the payment of dividends or distributions
or the making or repayment of intercompany loans by a Subsidiary of any Borrower
to any Borrower or between Borrowers.
6.17. No Speculative Transactions. No Credit Party shall engage in
any transaction involving commodity options, futures contracts or similar
transactions, except solely to hedge against fluctuations in the prices of
commodities owned or purchased by it and the values of foreign currencies
receivable or payable by it and interest swaps, caps or collars.
7. TERM
7.1. Termination. The financing arrangements contemplated hereby
shall be in effect until the Commitment Termination Date, and the Loans and all
other Obligations shall be automatically due and payable in full on such date.
7.2. Survival of Obligations Upon Termination of Financing
Arrangements. Except as otherwise expressly provided for in the Loan Documents,
no
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termination or cancellation (regardless of cause or procedure) of any financing
arrangement under this Agreement shall in any way affect or impair the
obligations, duties and liabilities of the Credit Parties or the rights of Agent
and Lenders relating to any unpaid portion of the Loans or any other
Obligations, due or not due, liquidated, contingent or unliquidated or any
transaction or event occurring prior to such termination, or any transaction or
event, the performance of which is required after the Commitment Termination
Date. Except as otherwise expressly provided herein or in any other Loan
Document, all undertakings, agreements, covenants, warranties and
representations of or binding upon the Credit Parties, and all rights of Agent
and each Lender, all as contained in the Loan Documents, shall not terminate or
expire, but rather shall survive any such termination or cancellation and shall
continue in full force and effect until the Termination Date; provided, that the
provisions of Section 11, the payment obligations under Sections 1.15 and 1.16,
and the indemnities contained in the Loan Documents shall survive the
Termination Date.
8. EVENTS OF DEFAULT: RIGHTS AND REMEDIES
8.1. Events of Default. The occurrence of any one or more of the
following events (regardless of the reason therefor) shall constitute an "Event
of Default" hereunder:
(a) Any Borrower (i) fails to make any payment of principal of, or
interest on, or Fees owing in respect of, the Loans or any of the other
Obligations when due and payable, or (ii) fails to pay or reimburse Agent or
Lenders for any expense reimbursable hereunder or under any other Loan Document
within ten (10) days following Agent's demand for such reimbursement or payment
of expenses.
(b) Any Credit Party shall fail or neglect to perform, keep or
observe any of the provisions of Sections 1.4, 1.8, 5.4 or 6, or any of the
provisions set forth in Annexes C or G, respectively.
(c) Any Borrower fails or neglects to perform, keep or observe any
of the provisions of Section 4 or any provisions set forth in Annexes E or F,
respectively, and the same shall remain unremedied for three (3) days or more.
(d) Any Credit Party fails or neglects to perform, keep or observe
any other provision of this Agreement or of any of the other Loan Documents
(other than any provision embodied in or covered by any other clause of this
Section 8.1) and the same shall remain unremedied for thirty (30) days or more.
(e) A default or breach occurs under any other agreement, document
or instrument to which any Credit Party is a party that is not cured within any
applicable grace period therefor, and such default or breach (i) involves the
failure to make any payment when due in respect of any Indebtedness (other than
the Obligations) of any Credit Party in excess of $1,000,000 in the aggregate,
or (ii) causes, or permits any holder of such Indebtedness or a trustee to
cause, Indebtedness or a portion thereof in excess of $1,000,000 in the
aggregate to become due prior to its stated maturity or prior to its
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regularly scheduled dates of payment, regardless of whether such default is
waived, or such right is exercised, by such holder or trustee.
(f) Any representation or warranty herein or in any Loan Document or
in any written statement, report, financial statement or certificate made or
delivered to Agent or any Lender by any Credit Party is untrue or incorrect in
any material respect as of the date when made or deemed made.
(g) Assets of any Credit Party with a fair market value of $250,000
or more shall be attached, seized, levied upon or subjected to a writ or
distress warrant, or come within the possession of any receiver, trustee,
custodian or assignee for the benefit of creditors of any Credit Party and such
condition continues for thirty (30) days or more.
(h) A case or proceeding is commenced against any Credit Party
seeking a decree or order in respect of such Credit Party (i) under the
Bankruptcy Code, as now constituted or hereafter amended or any other applicable
federal, state or foreign bankruptcy or other similar law, (ii) appointing a
custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar
official) for such Credit Party or for any substantial part of any such Credit
Party's assets, or (iii) ordering the winding-up or liquidation of the affairs
of such Credit Party, and such case or proceeding shall remain undismissed or
unstayed for sixty (60) days or more or a decree or order granting the relief
sought in such case or proceeding is entered by a court of competent
jurisdiction.
(i) Any Credit Party (i) files a petition seeking relief under the
Bankruptcy Code, as now constituted or hereafter amended, or any other
applicable federal, state or foreign bankruptcy or other similar law, (ii)
consents or fails to contest in a timely and appropriate manner the institution
of proceedings thereunder or the filing of any such petition or the appointment
of or taking possession by a custodian, receiver, liquidator, assignee, trustee
or sequestrator (or similar official) for such Credit Party or for any
substantial part of any such Credit Party's assets, (iii) makes an assignment
for the benefit of creditors, (iv) takes any corporate action in furtherance of
any of the foregoing; or (v) admits in writing its inability to, or is generally
unable to, pay its debts as such debts become due.
(j) A final judgment or judgments for the payment of money in excess
of $1,000,000 in the aggregate at any time are outstanding against one or more
of the Credit Parties and the same are not, within thirty (30) days after the
entry thereof, discharged or execution thereof stayed or bonded pending appeal,
or such judgements are not discharged prior to the expiration of any such stay.
(k) Any material provision of any Loan Document for any reason
ceases to be valid, binding and enforceable in accordance with its terms (or any
Credit Party shall challenge the enforceability of any Loan Document or shall
assert in writing, or engage in any action or inaction based on any such
assertion, that any provision of any of the Loan Documents has ceased to be or
otherwise is not valid, binding and enforceable in accordance with its terms),
or any Lien created under any Loan Document
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shall cease to be a valid and perfected first priority Lien (except as otherwise
permitted herein or therein) in any of the Collateral purported to be covered
thereby.
(l) Any Change of Control occurs.
(m) Any event occurs, whether or not insured or insurable, as a
result of which revenue-producing activities cease or are substantially
curtailed at any facility of Borrowers generating more than 25% of Borrowers'
consolidated revenues for the Fiscal Year preceding such event and such
cessation or curtailment continues for more than ninety (90) days.
8.2. Remedies. (a) If any Default or Event of Default has occurred
and is continuing, Agent may (and at the written request of the Requisite
Lenders shall), without notice, suspend the Revolving Loan facility with respect
to additional Advances and/or the incurrence of additional Letter of Credit
Obligations whereupon any additional Advances and the incurrence of additional
Letter of Credit Obligations shall be made or extended in Agent's sole
discretion (or in the sole discretion of the Requisite Lenders, if such
suspension occurred at their direction) so long as such Default or Event of
Default is continuing. If any Default or Event of Default has occurred and is
continuing, Agent may (and at the written request of Requisite Lenders shall),
without notice except as otherwise expressly provided herein, increase the rate
of interest applicable to the Loans and the Letter of Credit Fees to the Default
Rate.
(b) If any Event of Default has occurred and is continuing, Agent
may (and at the written request of the Requisite Lenders shall), without notice:
(i) terminate the Revolving Loan facility with respect to further Advances or
the incurrence of further Letter of Credit Obligations; (ii) declare all or any
portion of the Obligations, including all or any portion of any Loan to be
forthwith due and payable, and require that the Letter of Credit Obligations be
cash collateralized as provided in Annex B, all without presentment, demand,
protest or further notice of any kind, all of which are expressly waived by
Borrowers and each other Credit Party; or (iii) exercise any rights and remedies
provided to Agent under the Loan Documents or at law or equity, including all
remedies provided under the Code; provided, that upon the occurrence of an Event
of Default specified in Sections 8.1, (h) or (i), the Revolving Loan facility
shall be immediately terminated and all of the Obligations, including the
aggregate Revolving Loan, shall become immediately due and payable without
declaration, notice or demand by any Person.
8.3. Waivers by Credit Parties. Except as otherwise provided for in
this Agreement or by applicable law, each Credit Party waives (including for
purposes of Section 12): (a) presentment, demand and protest and notice of
presentment, dishonor, notice of intent to accelerate, notice of acceleration,
protest, default, nonpayment, maturity, release, compromise, settlement,
extension or renewal of any or all commercial paper, accounts, contract rights,
documents, instruments, chattel paper and guaranties at any time held by Agent
on which any Credit Party may in any way be liable, and hereby ratifies and
confirms whatever Agent may do in this regard, (b) all rights to notice and a
hearing prior to Agent's taking possession or control of, or to Agent's replevy,
attachment or levy upon, the Collateral or any bond or security which
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might be required by any court prior to allowing Agent to exercise any of its
remedies, and (c) the benefit of all valuation, appraisal, marshaling and
exemption laws.
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT
9.1. Assignment and Participations. (a) The Credit Parties signatory
hereto consent to any Lender's assignment to a Qualified Assignee of, or sale of
participations in, at any time or times, the Loan Documents, Loans, Letter of
Credit Obligations and any Commitment or of any portion thereof or interest
therein, including any Lender's rights, title, interests, remedies, powers or
duties thereunder. Any assignment by a Lender shall (i) require the consent of
Agent and so long as no Event of Default has occurred and is continuing,
Borrower Representative (which consent shall not be unreasonably withheld or
delayed with respect to a Qualified Assignee) and the execution of an assignment
agreement (an "Assignment Agreement") substantially in the from attached hereto
as Exhibit 9.1(a) and otherwise in form and substance satisfactory to, and
acknowledged by, Agent; (ii) be conditioned on such assignee Lender representing
to the assigning Lender and Agent that it is purchasing the applicable Loans to
be assigned to it for its own account, for investment purposes and not with a
view to the distribution thereof; (iii) if a partial assignment, be in an amount
at least equal to $5,000,000 and, after giving effect to any such partial
assignment, the assigning Lender shall have retained Commitments in an amount at
least equal to $5,000,000; and (iv) include a payment to Agent of an assignment
fee of $3,500. In the case of an assignment by a Lender under this Section 9.1,
the assignee shall have, to the extent of such assignment, the same rights,
benefits and obligations as it would all other Lenders hereunder. The assigning
Lender shall be relieved of its obligations hereunder with respect to its
Commitments or assigned portion thereof from and after the date of such
assignment. Each Borrower hereby acknowledges and agrees that any assignment
shall give rise to a direct obligation of Borrowers to the assignee and that the
assignee shall be considered to be a "Lender". In all instances, each Lender's
liability to make Loans hereunder shall be several and not joint and shall be
limited to such Lender's Pro Rata Share of the applicable Commitment. In the
event Agent or any Lender assigns or otherwise transfers all or any part of the
Obligations, Agent or any such Lender shall so notify Borrowers and Borrowers
shall, upon the request of Agent or such Lender, execute new Notes in exchange
for the Notes, if any, being assigned. Notwithstanding the foregoing provisions
of this Section 9.1(a), any Lender may at any time pledge the Obligations held
by it and such Lender's rights under this Agreement and the other Loan Documents
to a Federal Reserve Bank, and any Lender that is an investment fund may assign
the Obligations held by it and such Lender's rights under this Agreement and the
other Loan Documents to another investment fund managed by the same investment
advisor; provided, that no such pledge to a Federal Reserve Bank shall release
such Lender from such Lender's obligations hereunder or under any other Loan
Document.
(b) Any participation by a Lender of all or any part of its
Commitments shall be made with the understanding that all amounts payable by
Borrowers hereunder shall be determined as if that Lender had not sold such
participation, and that the holder of any such participation shall not be
entitled to require such Lender to take or omit to take any action hereunder
except actions directly affecting
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(i) any reduction in the principal amount of, or interest rate or Fees payable
with respect to, any Loan in which such holder participates, (ii) any extension
of the scheduled amortization of the principal amount of any Loan in which such
holder participates or the final maturity date thereof, and (iii) any release of
all or substantially all of the Collateral (other than in accordance with the
terms of this Agreement, the Collateral Documents or the other Loan Documents).
Solely for purposes of Sections 1.13, 1.15, 1.16 and 9.8, each Borrower
acknowledges and agrees that a participation shall give rise to a direct
obligation of Borrowers to the participant and the participant shall be
considered to be a "Lender". Except as set forth in the preceding sentence no
Borrower or Credit Party shall have any obligation or duty to any participant.
Neither Agent nor any Lender (other than the Lender selling a participation)
shall have any duty to any participant and may continue to deal solely with the
Lender selling a participation as if no such sale had occurred.
(c) Except as expressly provided in this Section 9.1, no Lender
shall, as between Borrowers and that Lender, or Agent and that Lender, be
relieved of any of its obligations hereunder as a result of any sale,
assignment, transfer or negotiation of, or granting of participation in, all or
any part of the Loans, the Notes or other Obligations owed to such Lender.
(d) Each Credit Party executing this Agreement shall assist any
Lender permitted to sell assignments or participations under this Section 9.1 as
reasonably required to enable the assigning or selling Lender to effect any such
assignment or participation, including the execution and delivery of any and all
agreements, notes and other documents and instruments as shall be requested and,
if requested by Agent, the preparation of informational materials for, and the
participation of management in meetings with, potential assignees or
participants. Each Credit Party executing this Agreement shall certify the
correctness, completeness and accuracy of all descriptions of the Credit Parties
and their respective affairs contained in any selling materials provided by them
and all other information provided by them and included in such materials,
except that any Projections delivered by Borrowers shall only be certified by
Borrowers as having been prepared by Borrowers in compliance with the
representations contained in Section 3.4(c).
(e) A Lender may furnish any information concerning Credit Parties
in the possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants). Each Lender shall obtain
from assignees or participants confidentiality covenants substantially
equivalent to those contained in Section 11.8.
(f) So long as no Event of Default has occurred and is continuing,
no Lender shall assign or sell participations in any portion of its Loans or
Commitments to a potential Lender or participant, if, as of the date of the
proposed assignment or sale, the assignee Lender or participant would be subject
to capital adequacy or similar requirements under Section 1.16(a), increased
costs under Section 1.16(b), an inability to fund LIBOR Loans under Section
1.16(c), or withholding taxes in accordance with Section 1.15(a).
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9.2. Appointment of Agent. GE Capital is hereby appointed to act on
behalf of all Lenders as Agent under this Agreement and the other Loan
Documents. The provisions of this Section 9.2 are solely for the benefit of
Agent and Lenders and no Credit Party nor any other Person shall have any rights
as a third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement and the other Loan Documents, Agent
shall act solely as an agent of Lenders and does not assume and shall not be
deemed to have assumed any obligation toward or relationship of agency or trust
with or for any Credit Party or any other Person. Agent shall have no duties or
responsibilities except for those expressly set forth in this Agreement and the
other Loan Documents. The duties of Agent shall be mechanical and administrative
in nature and Agent shall not have, or be deemed to have, by reason of this
Agreement, any other Loan Document or otherwise a fiduciary relationship in
respect of any Lender. Neither Agent nor any of its Affiliates nor any of their
respective officers, directors, employees, agents or representatives shall be
liable to any Lender for any action taken or omitted to be taken by it hereunder
or under any other Loan Document, or in connection herewith or therewith, except
for damages caused by its or their own gross negligence or willful misconduct.
If Agent shall request instructions from Requisite Lenders or all
affected Lenders with respect to any act or action (including failure to act) in
connection with this Agreement or any other Loan Document, then Agent shall be
entitled to refrain from such act or taking such action unless and until Agent
shall have received instructions from Requisite Lenders or all affected Lenders,
as the case may be, and Agent shall not incur liability to any Person by reason
of so refraining. Agent shall be fully justified in failing or refusing to take
any action hereunder or under any other Loan Document (a) if such action would,
in the opinion of Agent, be contrary to law or the terms of this Agreement or
any other Loan Document, (b) if such action would, in the opinion of Agent,
expose Agent to Environmental Liabilities or (c) if Agent shall not first be
indemnified to its satisfaction against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
Without limiting the foregoing, no Lender shall have any right of action
whatsoever against Agent as a result of Agent acting or refraining from acting
hereunder or under any other Loan Document in accordance with the instructions
of Requisite Lenders or all affected Lenders, as applicable.
9.3. Agent's Reliance, Etc. Neither Agent nor any of its Affiliates
nor any of their respective directors, officers, agents or employees shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement or the other Loan Documents, except for damages
caused by its or their own gross negligence or willful misconduct. Without
limiting of the generality of the foregoing, Agent: (a) may treat the payee of
any Note as the holder thereof until Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form satisfactory to
Agent; (b) may consult with legal counsel, independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts; (c) makes no warranty or representation to any
Lender and shall not be responsible to any Lender for any statements, warranties
or representations made in or in connection with this Agreement or the other
Loan Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or the other Loan Documents on the part of any Credit Party or to
inspect the Collateral (including the books and records) of any Credit Party;
(e) shall not be
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responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or the other
Loan Documents or any other instrument or document furnished pursuant hereto or
thereto; and (f) shall incur no liability under or in respect of this Agreement
or the other Loan Documents by acting upon any notice, consent, certificate or
other instrument or writing (which may be by telecopy, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
9.4. GE Capital and Affiliates. With respect to its Commitments
hereunder, GE Capital shall have the same rights and powers under this Agreement
and the other Loan Documents as any other Lender and may exercise the same as
though it were not Agent; and the term "Lender" or "Lenders" shall, unless
otherwise expressly indicated, include GE Capital in its individual capacity. GE
Capital and its Affiliates may lend money to, invest in, and generally engage in
any kind of business with, any Credit Party, any of their Affiliates and any
Person who may do business with or own securities of any Credit Party or any
such Affiliate, all as if GE Capital were not Agent and without any duty to
account therefor to Lenders. GE Capital and its Affiliates may accept fees and
other consideration from any Credit Party for services in connection with this
Agreement or otherwise without having to account for the same to Lenders. Each
Lender acknowledges the potential conflict of interest between GE Capital as a
Lender holding disproportionate interests in the Loans and GE Capital as Agent.
9.5. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon Agent or any other Lender and based on
the Financial Statements referred to in Section 3.4(a) and such other documents
and information as it has deemed appropriate, made its own credit and financial
analysis of the Credit Parties and its own decision to enter into this
Agreement. Each Lender also acknowledges that it will, independently and without
reliance upon Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement. Each
Lender acknowledges the potential conflict of interest of each other Lender as a
result of Lenders holding disproportionate interests in the Loans, and expressly
consents to, and waives any claim based upon, such conflict of interest.
9.6. Indemnification. Lenders agree to indemnify Agent (to the
extent not reimbursed by Credit Parties and without limiting the obligations of
Borrowers hereunder), ratably according to their respective Pro Rata Shares,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted
against Agent in any way relating to or arising out of this Agreement or any
other Loan Document or any action taken or omitted to be taken by Agent in
connection therewith; provided, that no Lender shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from Agent's gross
negligence or willful misconduct. Without limiting the foregoing, each Lender
agrees to reimburse Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by Agent in connection
with the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or
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responsibilities under, this Agreement and each other Loan Document, to the
extent that Agent is not reimbursed for such expenses by Credit Parties.
9.7. Successor Agent. Agent may resign at any time by giving not
less than thirty (30) days' prior written notice thereof to Lenders and Borrower
Representative. Upon any such resignation, the Requisite Lenders shall have the
right to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Requisite Lenders and shall have accepted such appointment
within 30 days after the resigning Agent's giving notice of resignation, then
the resigning Agent may, on behalf of Lenders, appoint a successor Agent, which
shall be a Lender, if a Lender is willing to accept such appointment, or
otherwise shall be a commercial bank or financial institution or a subsidiary of
a commercial bank or financial institution if such commercial bank or financial
institution is organized under the laws of the United States of America or of
any State thereof and has a combined capital and surplus of at least
$300,000,000. If no successor Agent has been appointed pursuant to the
foregoing, within 30 days after the date such notice of resignation was given by
the resigning Agent, such resignation shall become effective and the Requisite
Lenders shall thereafter perform all the duties of Agent hereunder until such
time, if any, as the Requisite Lenders appoint a successor Agent as provided
above. Any successor Agent appointed by Requisite Lenders hereunder shall be
subject to the approval of Borrower Representative, such approval not to be
unreasonably withheld or delayed; provided that such approval shall not be
required if a Default or an Event of Default has occurred and is continuing.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall succeed to and become vested with all the rights,
powers, privileges and duties of the resigning Agent. Upon the earlier of the
acceptance of any appointment as Agent hereunder by a successor Agent or the
effective date of the resigning Agent's resignation, the resigning Agent shall
be discharged from its duties and obligations under this Agreement and the other
Loan Documents, except that any indemnity rights or other rights in favor of
such resigning Agent shall continue. After any resigning Agent's resignation
hereunder, the provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was acting as Agent under
this Agreement and the other Loan Documents.
9.8. Setoff and Sharing of Payments. In addition to any rights now
or hereafter granted under applicable law and not by way of limitation of any
such rights, upon the occurrence and during the continuance of any Event of
Default and subject to Section 9.9(f), each Lender is hereby authorized at any
time or from time to time, without notice to any Credit Party or to any other
Person, any such notice being hereby expressly waived, to offset and to
appropriate and to apply any and all balances held by it at any of its offices
for the account of any Borrower or Guarantor (regardless of whether such
balances are then due to such Borrower or Guarantor) and any other properties or
assets at any time held or owing by that Lender or that holder to or for the
credit or for the account of any Borrower or Guarantor against and on account of
any of the Obligations which are not paid when due. Any Lender exercising a
right of setoff or otherwise receiving any payment on account of the Obligations
in excess of its Pro Rata Share thereof shall purchase for cash (and the other
Lenders or holders shall sell) such participations in each such other Lender's
or holder's Pro Rata Share of the Obligations as would be necessary to cause
such Lender to share the amount so offset or otherwise received with each other
Lender or holder in accordance with their respective Pro Rata Shares (other than
offset rights exercised by any Lender with respect to Sections 1.13, 1.15 or
1.16). Each Credit Party
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that is a Borrower or Guarantor agrees, to the fullest extent permitted by law,
that (a) any Lender may exercise its right to set off with respect to amounts in
excess of its Pro Rata Share of the Obligations and may sell participations in
such amounts so set off to other Lenders and holders and (b) any Lender so
purchasing a participation in the Loans made or other Obligations held by other
holders may exercise all rights of setoff, bankers' lien, counterclaim or
similar rights with respect to such participation as fully as if such Lender or
holder were a direct holder of the Loans and the other Obligations in the amount
of such participation. Notwithstanding the foregoing, if all or any portion of
the offset amount or payment otherwise received is thereafter recovered from the
Lender that has exercised the right of offset, the purchase of participations by
that Lender shall be rescinded and the purchase price restored without interest.
9.9. Advances; Payments; Non-Funding Lenders; Information; Actions
in Concert.
(a) Advances; Payments. On the second (2nd) Business Day of each
calendar week or more frequently as Agent may require (each, a "Settlement
Date"), Agent shall advise each Lender by telephone, or telecopy of the amount
of such Lender's Pro Rata Share of (i) each Revolving Credit Advance made
available to Borrowers since the prior Settlement Date, and (ii) principal,
interest and Fees paid for the benefit of Lenders with respect to each
applicable Loan. Each Lender shall make the amount of such Lender's Pro Rata
Share of the amount by which the Revolving Credit Advances made available to
Borrowers since the prior Settlement Date exceeds the principal paid by
Borrowers since the prior Settlement Date not later than 2:00p.m. (New York
time) on the next Business Day following each Settlement Date. Provided that
such Lender has funded all payments or Advances required to be made by it and
has purchased all participations required to be purchased by it under this
Agreement and the other Loan Documents as of such Settlement Date, Agent shall
pay to such Lender such Lender's Pro Rata Share of principal, interest and Fees
paid by Borrowers since the previous Settlement Date for the benefit of such
Lender on the Loans held by it. To the extent that any Lender (a "Non-Funding
Lender") has failed to fund all such payments and Advances or failed to fund the
purchase of all such participations, Agent shall be entitled to set off the
funding short-fall against that Non-Funding Lender's Pro Rata Share of all
payments received from Borrowers. Such payments shall be made by wire transfer
to such Lender's account (as specified by such Lender in Annex H or the
applicable Assignment Agreement) not later than 2:00 p.m. (New York time) on the
next Business Day following each Settlement Date.
(b) Availability of Lender's Pro Rata Share. Agent may assume that
each Revolving Lender will make its Pro Rata Share of each Revolving Credit
Advance available to Agent as required by Section 9.9(b). If such Pro Rata Share
is not, in fact, paid to Agent by such Revolving Lender when due, Agent will be
entitled to recover such amount on demand from such Revolving Lender without
setoff, counterclaim or deduction of any kind. If any Revolving Lender fails to
pay the amount of its Pro Rata Share forthwith upon Agent's demand, Agent shall
promptly notify Borrower Representative and Borrowers shall immediately repay
such amount to Agent. Nothing in this Section 9.9(b) or elsewhere in this
Agreement or the other Loan Documents shall be deemed to require Agent to
advance funds on behalf of any Revolving Lender or to relieve any Revolving
Lender from its obligation to fulfill its Commitments hereunder or to prejudice
any rights that Borrowers may have against any Revolving Lender as a result
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of any default by such Revolving Lender hereunder. To the extent that Agent
advances funds to any Borrower on behalf of any Revolving Lender and is not
reimbursed therefor on the same Business Day as such Advance is made, Agent
shall be entitled to retain for its account all interest accrued on such Advance
until reimbursed by the applicable Revolving Lender.
(c) Return of Payments. (i) If Agent pays an amount to a Lender
under this Agreement in the belief or expectation that a related payment has
been or will be received by Agent from Borrowers and such related payment is not
received by Agent, then Agent will be entitled to recover such amount from such
Lender on demand without setoff, counterclaim or deduction of any kind.
(ii) If Agent determines at any time that any amount received
by Agent under this Agreement must be returned to any Borrower or paid to any
other Person pursuant to any insolvency law or otherwise, then, notwithstanding
any other term or condition of this Agreement or any other Loan Document, Agent
will not be required to distribute any portion thereof to any Lender. In
addition, each Lender will repay to Agent on demand any portion of such amount
that Agent has distributed to such Lender, together with interest at such rate,
if any, as Agent is required to pay to any Borrower or such other Person,
without setoff, counterclaim or deduction of any kind.
(d) Non-Funding Lenders. The failure of any Non-Funding Lender to
make any Revolving Credit Advance or any payment required by it hereunder on the
date specified therefor shall not relieve any other Revolving Lender (each such
other Revolving Lender, an "Other Lender") of its obligations to make such
Advance or purchase such participation on such date, but neither any Other
Lender nor Agent shall be responsible for the failure of any Non-Funding Lender
to make an Advance, purchase a participation or make any other payment required
hereunder. Notwithstanding anything set forth herein to the contrary, a
Non-Funding Lender shall not have any voting or consent rights under or with
respect to any Loan Document or constitute a "Lender" (or be included in the
calculation of "Requisite Lenders" hereunder) for any voting or consent rights
under or with respect to any Loan Document. At Borrower Representative's
request, Agent or a Person acceptable to Agent shall have the right with Agent's
consent and in Agent's sole discretion (but shall have no obligation) to
purchase from any Non-Funding Lender, and each Non-Funding Lender agrees that it
shall, at Agent's request, sell and assign to Agent or such Person, all of the
Commitments of that Non-Funding Lender for an amount equal to the principal
balance of all Loans held by such Non-Funding Lender and all accrued interest
and fees with respect thereto through the date of sale, such purchase and sale
to be consummated pursuant to an executed Assignment Agreement.
(e) Dissemination of Information. Agent shall use reasonable efforts
to provide Lenders with any notice of Default or Event of Default received by
Agent from, or delivered by Agent to, any Credit Party, with notice of any Event
of Default of which Agent has actually become aware and with notice of any
action taken by Agent following any Event of Default; provided, that Agent shall
not be liable to any Lender for any failure to do so, except to the extent that
such failure is attributable to Agent's gross
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negligence or willful misconduct. Lenders acknowledge that Borrowers are
required to provide Financial Statements and Collateral Reports to Lenders in
accordance with Annexes E and F hereto and agree that Agent shall have no duty
to provide the same to Lenders.
(f) Actions in Concert. Anything in this Agreement to the contrary
notwithstanding, each Lender hereby agrees with each other Lender that no Lender
shall take any action to protect or enforce its rights arising out of this
Agreement or the Notes (including exercising any rights of setoff) without first
obtaining the prior written consent of Agent and Requisite Lenders, it being the
intent of Lenders that any such action to protect or enforce rights under this
Agreement and the Notes shall be taken in concert and at the direction or with
the consent of Agent.
10. SUCCESSORS AND ASSIGNS
10.1. Successors and Assigns. This Agreement and the other Loan
Documents shall be binding on and shall inure to the benefit of each Credit
Party, Agent, Lenders and their respective successors and assigns (including, in
the case of any Credit Party, a debtor-in-possession on behalf of such Credit
Party), except as otherwise provided herein or therein. No Credit Party may
assign, transfer, hypothecate or otherwise convey its rights, benefits,
obligations or duties hereunder or under any of the other Loan Documents without
the prior express written consent of Agent and Lenders. Any such purported
assignment, transfer, hypothecation or other conveyance by any Credit Party
without the prior express written consent of Agent and Lenders shall be void.
The terms and provisions of this Agreement are for the purpose of defining the
relative rights and obligations of each Credit Party, Agent and Lenders with
respect to the transactions contemplated hereby and no Person shall be a third
party beneficiary of any of the terms and provisions of this Agreement or any of
the other Loan Documents.
11. MISCELLANEOUS
11.1. Complete Agreement; Modification of Agreement. The Loan
Documents constitute the complete agreement between the parties with respect to
the subject matter thereof and may not be modified, altered or amended except as
set forth in Section 11.2. Any letter of interest, commitment letter or fee
letter (other than the GE Capital Fee Letter) between any Credit Party and Agent
or any Lender or any of their respective Affiliates, predating this Agreement
and relating to a financing of substantially similar form, purpose or effect
shall be superseded by this Agreement.
11.2. Amendments and Waivers. (a) Except for actions expressly
permitted to be taken by Agent, no amendment, modification, termination or
waiver of any provision of this Agreement or any other Loan Document, or any
consent to any departure by any Credit Party therefrom, shall in any event be
effective unless the same shall be in writing and signed by Agent and Borrowers,
and by Requisite Lenders or all affected Lenders, as applicable. Except as set
forth in clauses (b) and (c) below, all such amendments, modifications,
terminations or waivers requiring the consent of any Lenders shall require the
written consent of Requisite Lenders.
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(b) No amendment, modification, termination or waiver of or consent
with respect to any provision of this Agreement which waives compliance with the
conditions precedent set forth in Section 2.2 to the making of any Loan or the
incurrence of any Letter of Credit Obligations shall be effective unless the
same shall be in writing and signed by Agent, Requisite Lenders and Borrowers.
Notwithstanding anything contained in this Agreement to the contrary, no waiver
or consent with respect to any Default or any Event of Default shall be
effective for purposes of the conditions precedent to the making of Loans or the
incurrence of Letter of Credit Obligations set forth in Section 2.2 unless the
same shall be in writing and signed by Agent, Requisite Lenders and Borrowers.
(c) No amendment, modification, termination or waiver shall, unless
in writing and signed by Agent and each Lender directly affected thereby: (i)
increase the principal amount of any Lender's Commitment; (ii) reduce the
principal of, rate of interest on or Fees payable with respect to any Loan or
Letter of Credit Obligations of any affected Lender; (iii) extend any regularly
scheduled payment date or final maturity date of the principal amount of any
Loan of any affected Lender; (iv) waive, forgive, defer, extend or postpone any
payment of interest or Fees as to any affected Lender; (v) except as otherwise
permitted herein or in the other Loan Documents, release, or permit any Credit
Party to sell or otherwise dispose of, any Collateral with a value exceeding
$5,000,000 in the aggregate (which action shall be deemed to directly affect all
Lenders); (vi) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which shall be required for Lenders or any
of them to take any action hereunder; and (vii) amend or waive this Section 11.2
or the definition of the term "Requisite Lenders" insofar as such definition
affects the substance of this Section 11.2. Furthermore, no amendment,
modification, termination or waiver affecting the rights or duties of Agent
under this Agreement or any other Loan Document shall be effective unless in
writing and signed by Agent, in addition to Lenders required hereinabove to take
such action. Each amendment, modification, termination or waiver shall be
effective only in the specific instance and for the specific purpose for which
it was given. No amendment, modification, termination or waiver shall be
required for Agent to take additional Collateral pursuant to any Loan Document.
No amendment, modification, termination or waiver of any provision of any Note
shall be effective without the written concurrence of the holder of that Note.
No notice to or demand on any Credit Party in any case shall entitle such Credit
Party or any other Credit Party to any other or further notice or demand in
similar or other circumstances. Any amendment, modification, termination, waiver
or consent effected in accordance with this Section 11.2 shall be binding upon
each holder of the Notes at the time outstanding and each future holder of the
Notes.
(d) If, in connection with any proposed amendment, modification,
waiver or termination (a "Proposed Change"):
(i) requiring the consent of all affected Lenders, the consent
of Requisite Lenders is obtained, but the consent of other Lenders whose consent
is required is not obtained (any such Lender whose consent is not obtained as
described in this clause (i) and in clause (ii) below being referred to as a
"Non-Consenting Lender"), or
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(ii) requiring the consent of Requisite Lenders, the consent
of Lenders holding 51% or more of the aggregate Commitments is obtained, but the
consent of Requisite Lenders is not obtained,
then, so long as Agent is not a Non-Consenting Lender, at Borrower
Representative's request, Agent or a Person acceptable to Agent shall have the
right with Agent's consent and in Agent's sole discretion (but shall have no
obligation) to purchase from such Non-Consenting Lenders, and such
Non-Consenting Lenders agree that they shall, upon Agent's request, sell and
assign to Agent or such Person, all of the Commitments of such Non-Consenting
Lenders for an amount equal to the principal balance of all Loans held by the
Non-Consenting Lenders and all accrued interest and Fees with respect thereto
through the date of sale, such purchase and sale to be consummated pursuant to
an executed Assignment Agreement.
(e) Upon indefeasible payment in full in cash and performance of all
of the Obligations (other than indemnification Obligations), termination of the
Commitments and a release of all claims against Agent and Lenders, and so long
as no suits, actions, proceedings, or claims are pending or threatened against
any Indemnified Person asserting any damages, losses or liabilities that are
Indemnified Liabilities, Agent shall deliver to Borrowers termination
statements, mortgage releases and other documents necessary or appropriate to
evidence the termination of the Liens securing payment of the Obligations.
11.3. Fees and Expenses. Borrowers shall reimburse Agent for all
out-of-pocket expenses incurred in connection with the preparation of the Loan
Documents (including the reasonable fees and expenses of all of its special loan
counsel, advisors, consultants and auditors retained in connection with the Loan
Documents and the Related Transactions and advice in connection therewith).
Borrowers shall reimburse Agent (and, with respect to clauses (c) and (d) below,
all Lenders) for all fees, costs and expenses, including the reasonable fees,
costs and expenses of counsel or other advisors (including environmental and
management consultants and appraisers) for advice, assistance, or other
representation in connection with:
(a) the forwarding to Borrowers or any other Person on behalf of
Borrowers by Agent of the proceeds of the Loans;
(b) any amendment, modification or waiver of, consent with respect
to, or termination of, any of the Loan Documents or Related Transactions
Documents or advice in connection with the administration of the Loans made
pursuant hereto or its rights hereunder or thereunder;
(c) any litigation, contest, dispute, suit, proceeding or action
(whether instituted by Agent, any Lender, any Borrower or any other Person) and
whether as a party, witness or otherwise) in any way relating to the Collateral,
any of the Loan Documents or any other agreement to be executed or delivered in
connection herewith or therewith, including any litigation, contest, dispute,
suit, case, proceeding or action, and any appeal or review thereof, in
connection with a case commenced by or against any or all of the Borrowers or
any other Person that may be obligated to Agent by virtue of the
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Loan Documents; including any such litigation, contest, dispute, suit,
proceeding or action arising in connection with any work-out or restructuring of
the Loans during the pendency of one or more Events of Default; provided that in
the case of reimbursement of counsel for Lenders other than Agent, such
reimbursement shall be limited to one counsel for all such Lenders;
(d) any attempt to enforce any remedies of Agent against any or all
of the Credit Parties or any other Person that may be obligated to Agent or any
Lender by virtue of any of the Loan Documents; including any such attempt to
enforce any such remedies in the course of any work-out or restructuring of the
Loans during the pendency of one or more Events of Default; provided that in the
case of reimbursement of counsel for Lenders other than Agent, such
reimbursement shall be limited to one counsel for all such Lenders;
(e) any work-out or restructuring of the Loans during the pendency
of one or more Events of Default; and
(f) efforts to (i) monitor the Loans or any of the other
Obligations, (ii) evaluate, observe or assess any of the Credit Parties or their
respective affairs, and (iii) verify, protect, evaluate, assess, appraise,
collect, sell, liquidate or otherwise dispose of any of the Collateral;
including, as to each of clauses (a) through (f) above, all attorneys' and other
professional and service providers' fees arising from such services, including
those in connection with any appellate proceedings; and all reasonable expenses,
costs, charges and other fees incurred by such counsel and others in connection
with or relating to any of the events or actions described in this Section 11.3,
all of which shall be payable, on demand, by Borrowers to Agent. Without
limiting the generality of the foregoing, such expenses, costs, charges and fees
may include: fees, costs and expenses of accountants, environmental advisors,
appraisers, investment bankers, management and other consultants and paralegals;
court costs and expenses; photocopying and duplication expenses; court reporter
fees, costs and expenses; long distance telephone charges; air express charges;
telegram or telecopy charges; secretarial overtime charges; and expenses for
travel, lodging and food paid or incurred in connection with the performance of
such legal or other advisory services.
11.4. No Waiver. Agent's or any Lender's failure, at any time or
times, to require strict performance by the Credit Parties of any provision of
this Agreement or any other Loan Document shall not waive, affect or diminish
any right of Agent or such Lender thereafter to demand strict compliance and
performance herewith or therewith. Any suspension or waiver of an Event of
Default shall not suspend, waive or affect any other Event of Default whether
the same is prior or subsequent thereto and whether the same or of a different
type. Subject to the provisions of Section 11.2, none of the undertakings,
agreements, warranties, covenants and representations of any Credit Party
contained in this Agreement or any of the other Loan Documents and no Default or
Event of Default by any Credit Party shall be deemed to have been suspended or
waived by Agent or any Lender, unless such waiver or suspension is by an
instrument in writing signed by an officer of or other authorized employee of
Agent and the applicable required Lenders, and directed to Borrowers specifying
such suspension or waiver.
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11.5. Remedies. Agent's and Lenders' rights and remedies under this
Agreement shall be cumulative and nonexclusive of any other rights and remedies
which Agent or any Lender may have under any other agreement, including the
other Loan Documents, by operation of law or otherwise. Recourse to the
Collateral shall not be required.
11.6. Severability. Wherever possible, each provision of this
Agreement and the other Loan Documents shall be interpreted in such a manner as
to be effective and valid under applicable law, but if any provision of this
Agreement or any other Loan Document shall be prohibited by or invalid under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of such provision
or the remaining provisions of this Agreement.
11.7. Conflict of Terms. Except as otherwise provided in this
Agreement or any of the other Loan Documents by specific reference to the
applicable provisions of this Agreement, if any provision contained in this
Agreement conflicts with any provision in any of the other Loan Documents, the
provision contained in this Agreement shall govern and control.
11.8. Confidentiality. Agent and each Lender agree to use
commercially reasonable efforts (equivalent to the efforts Agent or such Lender
applies to maintaining the confidentiality of its own confidential information)
to maintain as confidential all confidential information provided to them by the
Credit Parties and designated as confidential for a period of two (2) years
following receipt thereof, except that Agent and any Lender may disclose such
information (a) to Persons employed or engaged by Agent or such Lender in
evaluating, approving, structuring or administering the Loans and the
Commitments; (b) to any bona fide assignee or participant or potential assignee
or participant that has agreed to comply with the covenant contained in this
Section 11.8 (and any such bona fide assignee or participant or potential
assignee or participant may disclose such information to Persons employed or
engaged by them as described in clause (a) above); (c) as required or requested
by any Governmental Authority or reasonably believed by Agent or such Lender to
be compelled by any court decree, subpoena or legal or administrative order or
process; (d) as, on the advice of Agent's or such Lender's counsel, is required
by law; (e) in connection with the exercise of any right or remedy under the
Loan Documents or in connection with any Litigation to which Agent or such
Lender is a party; or (f) which ceases to be confidential through no fault of
Agent or any Lender.
11.9. GOVERNING LAW. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN ANY
OF THE LOAN DOCUMENTS, IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION,
VALIDITY AND PERFORMANCE, THE LOAN DOCUMENTS AND THE OBLIGATIONS SHALL BE
GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THAT STATE AND
ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. EACH CREDIT PARTY HEREBY
CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK COUNTY,
CITY OF NEW YORK, NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE CREDIT PARTIES, AGENT AND LENDERS
PERTAINING TO THIS
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AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, PROVIDED, THAT
AGENT, LENDERS AND THE CREDIT PARTIES ACKNOWLEDGE THAT ANY APPEALS FROM THOSE
COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK COUNTY, CITY
OF NEW YORK, NEW YORK; PROVIDED, FURTHER, THAT NOTHING IN THIS AGREEMENT SHALL
BE DEEMED OR OPERATE TO PRECLUDE AGENT FROM BRINGING SUIT OR TAKING OTHER LEGAL
ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER
SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN
FAVOR OF AGENT. EACH CREDIT PARTY EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
CREDIT PARTY HEREBY WAIVES ANY OBJECTION WHICH SUCH CREDIT PARTY MAY HAVE BASED
UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND
HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED
APPROPRIATE BY SUCH COURT. EACH CREDIT PARTY HEREBY WAIVES PERSONAL SERVICE OF
THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH CREDIT PARTY AT THE ADDRESS SET
FORTH IN ANNEX I OF THIS AGREEMENT AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF SUCH CREDIT PARTY'S ACTUAL RECEIPT THEREOF OR
THREE (3) DAYS AFTER DEPOSIT IN THE UNITED STATES MAILS, PROPER POSTAGE PREPAID.
11.10. Notices. Except as otherwise provided herein, whenever it is
provided herein that any notice, demand, request, consent, approval, declaration
or other communication shall or may be given to or served upon any of the
parties by any other parties, or whenever any of the parties desires to give or
serve upon any other parties any communication with respect to this Agreement,
each such notice, demand, request, consent, approval, declaration or other
communication shall be in writing and shall be deemed to have been validly
served, given or delivered (a) upon the earlier of actual receipt and three (3)
Business Days after deposit in the United States Mail, registered or certified
mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by telecopy or other similar facsimile transmission
(with such telecopy or facsimile promptly confirmed by delivery of a copy by
personal delivery or United States Mail as otherwise provided in this Section
11.10), (c) one (1) Business Day after deposit with a reputable overnight
courier with all charges prepaid or (d) when delivered, if hand-delivered by
messenger, all of which shall be addressed to the party to be notified and sent
to the address or facsimile number indicated in Annex I or to such other address
(or facsimile number) as may be substituted by notice given as herein provided.
The giving of any notice required hereunder may be waived in writing by the
party entitled to receive such notice. Failure or delay in delivering copies of
any notice, demand, request, consent, approval, declaration or other
communication to any Person (other than Borrower Representative or Agent)
designated on Annex I to receive copies shall in no way adversely affect the
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effectiveness of such notice, demand, request, consent, approval, declaration or
other communication.
11.11. Section Titles. The Section titles and Table of Contents
contained in this Agreement are and shall be without substantive meaning or
content of any kind whatsoever and are not a part of the agreement between the
parties hereto.
11.12. Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which shall collectively and separately
constitute one agreement.
11.13. WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN CONNECTION
WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND
FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT
THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, AMONG AGENT, LENDERS AND ANY CREDIT PARTY ARISING
OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP
ESTABLISHED AMONG THEM IN CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR THE TRANSACTIONS RELATED THERETO.
11.14. Press Releases. Each Credit Party executing this Agreement
agrees that neither it nor its Affiliates will in the future issue any press
releases or other public disclosure using the name of GE Capital or its
affiliates or referring to this Agreement, the other Loan Documents or the
Related Transactions Documents without at least two (2) Business Days' prior
notice to GE Capital and without the prior written consent of GE Capital unless
(and only to the extent that) such Credit Party or Affiliate is required to do
so under law and then, in any event, such Credit Party or Affiliate will consult
with GE Capital before issuing such press release or other public disclosure.
Each Credit Party consents to the publication by Agent or any Lender of a
tombstone or similar advertising material relating to the financing transactions
contemplated by this Agreement. Agent reserves the right to provide to industry
trade organizations information necessary and customary for inclusion in league
table measurements with Borrowers' consent which shall not be unreasonably
withheld or delayed.
11.15. Reinstatement. This Agreement shall remain in full force and
effect and continue to be effective should any petition be filed by or against
any Borrower for liquidation or reorganization, should any Borrower become
insolvent or make an assignment for the benefit of any creditor or creditors or
should a receiver or trustee be appointed for all or any significant part of any
Borrower's assets, and shall continue to be effective or to be reinstated, as
the case may be, if at any time payment and performance of the Obligations, or
any part thereof, is, pursuant to applicable law, rescinded or reduced in
amount, or must otherwise be restored or returned by any obligee of the
Obligations, whether as a "voidable preference," "fraudulent
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conveyance," or otherwise, all as though such payment or performance had not
been made. In the event that any payment, or any part thereof, is rescinded,
reduced, restored or returned, the Obligations shall be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or
returned.
11.16. Advice of Counsel. Each of the parties represents to each
other party hereto that it has discussed this Agreement and, specifically, the
provisions of Sections 11.9 and 11.13, with its counsel.
11.17. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement.
12. CROSS-GUARANTY
12.1. Cross-Guaranty. Each Borrower hereby agrees that such Borrower
is jointly and severally liable for, and hereby absolutely and unconditionally
guarantees to Agent and Lenders and their respective successors and assigns, the
full and prompt payment (whether at stated maturity, by acceleration or
otherwise) and performance of, all Obligations owed or hereafter owing to Agent
and Lenders by each other Borrower. Each Borrower agrees that its guaranty
obligation hereunder is a continuing guaranty of payment and performance and not
of collection, that its obligations under this Section 12 shall not be
discharged until payment and performance, in full, of the Obligations has
occurred, and that its obligations under this Section 12 shall be absolute and
unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any
future amendment of, or change in, this Agreement, any other Loan Document or
any other agreement, document or instrument to which any Borrower is or may
become a party;
(b) the absence of any action to enforce this Agreement (including
this Section 12) or any other Loan Document or the waiver or consent by Agent
and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its
Lien against, any security for the Obligations or any action, or the absence of
any action, by Agent and Lenders in respect thereof (including the release of
any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor.
Each Borrower shall be regarded, and shall be in the same position, as principal
debtor with respect to the Obligations guaranteed hereunder.
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12.2. Waivers by Borrowers. Each Borrower expressly waives all
rights it may have now or in the future under any statute, or at common law, or
at law or in equity, or otherwise, to compel Agent or Lenders to marshall assets
or to proceed in respect of the Obligations guaranteed hereunder against any
other Credit Party, any other party or against any security for the payment and
performance of the Obligations before proceeding against, or as a condition to
proceeding against, such Borrower. It is agreed among each Borrower, Agent and
Lenders that the foregoing waivers are of the essence of the transaction
contemplated by this Agreement and the other Loan Documents and that, but for
the provisions of this Section 12 and such waivers, Agent and Lenders would
decline to enter into this Agreement.
12.3. Benefit of Guaranty. Each Borrower agrees that the provisions
of this Section 12 are for the benefit of Agent and Lenders and their respective
successors, transferees, endorsees and assigns, and nothing herein contained
shall impair, as between any other Borrower and Agent or Lenders, the
obligations of such other Borrower under the Loan Documents.
12.4. Subordination of Subrogation, Etc. Notwithstanding anything to
the contrary in this Agreement or in any other Loan Document, and except as set
forth in Section 12.7, each Borrower hereby expressly and irrevocably
subordinates to payment of the Obligations any and all rights at law or in
equity to subrogation, reimbursement, exoneration, contribution, indemnification
or set off and any and all defenses available to a surety, guarantor or
accommodation co-obligor until the Obligations are indefeasibly paid in full in
cash. Each Borrower acknowledges and agrees that this subordination is intended
to benefit Agent and Lenders and shall not limit or otherwise affect such
Borrower's liability hereunder or the enforceability of this Section 12, and
that Agent, Lenders and their respective successors and assigns are intended
third party beneficiaries of the waivers and agreements set forth in this
Section 12.4.
12.5. Election of Remedies. If Agent or any Lender may, under
applicable law, proceed to realize its benefits under any of the Loan Documents
giving Agent or such Lender a Lien upon any Collateral, whether owned by any
Borrower or by any other Person, either by judicial foreclosure or by
non-judicial sale or enforcement, Agent or any Lender may, at its sole option,
determine which of its remedies or rights it may pursue without affecting any of
its rights and remedies under this Section 12. If, in the exercise of any of its
rights and remedies, Agent or any Lender shall forfeit any of its rights or
remedies, including its right to enter a deficiency judgment against any
Borrower or any other Person, whether because of any applicable laws pertaining
to "election of remedies" or the like, each Borrower hereby consents to such
action by Agent or such Lender and waives any claim based upon such action, even
if such action by Agent or such Lender shall result in a full or partial loss of
any rights of subrogation which each Borrower might otherwise have had but for
such action by Agent or such Lender. Any election of remedies which results in
the denial or impairment of the right of Agent or any Lender to seek a
deficiency judgment against any Borrower shall not impair any other Borrower's
obligation to pay the full amount of the Obligations. In the event Agent or any
Lender shall bid at any foreclosure or trustee's sale or at any private sale
permitted by law or the Loan Documents, Agent or such Lender may bid all or less
than the amount of the Obligations and the amount of such bid need not be paid
by Agent or such Lender but shall be credited against the Obligations. The
amount of the successful bid at any such sale, whether Agent,
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Lender or any other party is the successful bidder, shall be conclusively deemed
to be the fair market value of the Collateral and the difference between such
bid amount and the remaining balance of the Obligations shall be conclusively
deemed to be the amount of the Obligations guaranteed under this Section 12,
notwithstanding that any present or future law or court decision or ruling may
have the effect of reducing the amount of any deficiency claim to which Agent or
any Lender might otherwise be entitled but for such bidding at any such sale.
12.6. Limitation. Notwithstanding any provision herein contained to
the contrary, each Borrower's (other than Harvard) liability under this Section
12 (which liability is in any event in addition to amounts for which such
Borrower is primarily liable under Section 1) shall be limited to an amount not
to exceed as of any date of determination the greater of:
(a) the net amount of all Loans advanced to any other Borrower under
this Agreement and then re-loaned or otherwise transferred to, or for the
benefit of, such Borrower; and
(b) the amount that could be claimed by Agent and Lenders from such
Borrower under this Section 12 without rendering such claim voidable or
avoidable under Section 548 of Chapter 11 of the Bankruptcy Code to the extent
applicable or under any applicable state Uniform Fraudulent Transfer Act,
Uniform Fraudulent Conveyance Act or similar statute or common law after taking
into account, among other things, such Borrower's right of contribution and
indemnification from each other Borrower under Section 12.7.
12.7. Contribution with Respect to Guaranty Obligations. (a) To the
extent that any Borrower shall make a payment under this Section 12 of all or
any of the Obligations (other than Loans made to that Borrower for which it is
primarily liable) (a "Guarantor Payment") which, taking into account all other
Guarantor Payments then previously or concurrently made by any other Borrower,
exceeds the amount which such Borrower would otherwise have paid if each
Borrower had paid the aggregate Obligations satisfied by such Guarantor Payment
in the same proportion that such Borrower's "Allocable Amount" (as defined
below) (as determined immediately prior to such Guarantor Payment) bore to the
aggregate Allocable Amounts of each of the Borrowers as determined immediately
prior to the making of such Guarantor Payment, then, following indefeasible
payment in full in cash of the Obligations and termination of the Commitments,
such Borrower shall be entitled to receive contribution and indemnification
payments from, and be reimbursed by, each other Borrower for the amount of such
excess, pro rata based upon their respective Allocable Amounts in effect
immediately prior to such Guarantor Payment.
(b) As of any date of determination, the "Allocable Amount" of any
Borrower shall be equal to the maximum amount of the claim that could then be
recovered from such Borrower under this Section 12 without rendering such claim
voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or
under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law.
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(c) This Section 12.7 is intended only to define the relative rights
of Borrowers and nothing set forth in this Section 12.7 is intended to or shall
impair the obligations of Borrowers, jointly and severally, to pay any amounts
as and when the same shall become due and payable in accordance with the terms
of this Agreement, including Section 12.1. Nothing contained in this Section
12.7 shall limit the liability of any Borrower to pay the Loans made directly or
indirectly to that Borrower and accrued interest, Fees and expenses with respect
thereto for which such Borrower shall be primarily liable.
(d) The parties hereto acknowledge that the rights of contribution
and indemnification hereunder shall constitute assets of the Borrower to which
such contribution and indemnification is owing.
(e) The rights of the indemnifying Borrowers against other Credit
Parties under this Section 12.7 shall be exercisable upon the full and
indefeasible payment of the Obligations and the termination of the Commitments.
12.8. Liability Cumulative. The liability of Borrowers under this
Section 12 is in addition to and shall be cumulative with all liabilities of
each Borrower to Agent and Lenders under this Agreement and the other Loan
Documents to which such Borrower is a party or in respect of any Obligations or
obligation of the other Borrower, without any limitation as to amount, unless
the instrument or agreement evidencing or creating such other liability
specifically provides to the contrary.
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the
date first written above.
HARVARD INDUSTRIES, INC.
HARVARD TRANSPORTATION CORPORATION
POTTSTOWN PRECISION CASTING, INC.
HAYES-ALBION CORPORATION
DOEHLER-JARVIS, INC.
DOEHLER-JARVIS GREENEVILLE, INC.
HARVARD INDUSTRIES RISK MANAGEMENT, INC.
DOEHLER-JARVIS TOLEDO, INC.
HARMAN AUTOMOTIVE, INC.
THE KINGSTON-WARREN CORPORATION
By: ______________________________________________
Name: Kevin L.B. Price
Title: Vice-President, Comptroller of each of the
foregoing corporations
GENERAL ELECTRIC CAPITAL CORPORATION
By: ______________________________________________
Name: Martin Greenberg
Its Duly Authorized Signatory
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ANNEX A (Recitals)
to
CREDIT AGREEMENT
DEFINITIONS
Capitalized terms used in the Loan Documents shall have (unless
otherwise provided elsewhere in the Loan Documents) the following respective
meanings, and all references to Sections, Exhibits, Schedules or Annexes in the
following definitions shall refer to Sections, Exhibits, Schedules or Annexes of
or to the Agreement:
"Account Debtor" means any Person who may become obligated to any
Credit Party under, with respect to, or on account of, an Account.
"Accounting Changes" has the meaning ascribed thereto in Annex G.
"Accounts" means all "accounts," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party and, in any event,
including (a) all accounts receivable, other receivables, book debts and other
forms of obligations (other than forms of obligations evidenced by Chattel
Paper, Documents or Instruments) whether arising out of goods sold or services
rendered by it or from any other transaction (including any such obligations
that may be characterized as an account or contract right under the Code), (b)
all of each Credit Party's rights in, to and under all purchase orders or
receipts by it for goods or services, (c) all of each Credit Party's rights to
any goods represented by any of the foregoing (including unpaid sellers' rights
of rescission, replevin, reclamation and stoppage in transit and rights to
returned, reclaimed or repossessed goods), (d) all monies due or to become due
to any Credit Party, under all purchase orders and contracts for the sale of
goods or the performance of services or both by such Credit Party or in
connection with any other transaction (whether or not yet earned by performance
on the part of such Credit Party) including the right to receive the proceeds of
said purchase orders and contracts, and (e) all collateral security and
guaranties of any kind, now or hereafter in existence, given by any Person with
respect to any of the foregoing.
"Acquisition" means the sale by Harvard of all or substantially all
of the assets of Kingston-Warren.
"Acquisition Agreement" means the Asset Purchase Agreement among KWC
Acquisition Corp., The Kingston-Warren Corporation and Harvard dated as of
September 30, 1999.
"Advance" means any Revolving Credit Advance.
"Affiliate" means, with respect to any Person, (a) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the Stock having
ordinary voting power in the election of directors of such Person, (b) each
Person that controls, is controlled by or is under common control with such
Person, (c) each of such Person's officers, directors, joint venturers and
partners and (d) in the case of Borrowers, the immediate family members, spouses
and lineal descendants of
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individuals who are Affiliates of any Borrower. For the purposes of this
definition, "control" of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of its management or
policies, whether through the ownership of voting securities, by contract or
otherwise; provided, however, that the term "Affiliate" shall specifically
exclude Agent and each Lender.
"Agent" means GE Capital in its capacity as agent for Lenders or its
successor appointed pursuant to Section 9.7.
"Agreement" means the Credit Agreement by and among Borrowers, the
other Credit Parties party thereto, GE Capital, as Agent and Lender and the
other Lenders from time to time party thereto, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"Appendices" has the meaning ascribed to it in the recitals to the
Agreement.
"Applicable Margins" means collectively the Applicable Revolver
Index Margin and the Applicable Revolver LIBOR Margin.
"Applicable Revolver Index Margin" means the per annum interest rate
margin from time to time in effect and payable in addition to the Index Rate
applicable to the Revolving Loan, as determined by reference to Section 1.5(a).
"Applicable Revolver LIBOR Margin" means the per annum interest rate
from time to time in effect and payable in addition to the LIBOR Rate applicable
to the Revolving Loan, as determined by reference to Section 1.5(a).
"Appraisal" means the Appraisal of Norman Levy dated April, 1999 of
each Credit Party's assets.
"Assignment Agreement" has the meaning ascribed to it in Section
9.1(a).
"Bankruptcy Code" means the provisions of Title 11 of the United
States Code, 11 U.S.C. ss.ss.101 et seq.
"Borrower Accounts" has the meaning ascribed to it in Annex C.
"Borrower Representative" means Harvard Industries, Inc. in its
capacity as Borrower Representative pursuant to the provisions of Section
1.1(d).
"Borrowers" and "Borrower" have the respective meanings ascribed
thereto in the recitals to the Agreement.
"Borrowing Availability" has the meaning ascribed to it in Section
1.1(a)(i).
"Business Day" means any day that is not a Saturday, a Sunday or a
day on which banks are required or permitted to be closed in the State of New
York and in reference to LIBOR Loans shall mean any such day that is also a
LIBOR Business Day.
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"Capital Expenditures" means, with respect to any Person, all
expenditures (by the expenditure of cash or the incurrence of Indebtedness) by
such Person during any measuring period for any fixed assets or improvements or
for replacements, substitutions or additions thereto, that have a useful life of
more than one year and that are required to be capitalized under GAAP.
"Capital Lease" means, with respect to any Person, any lease of any
property (whether real, personal or mixed) by such Person as lessee that, in
accordance with GAAP, would be required to be classified and accounted for as a
capital lease on a balance sheet of such Person.
"Capital Lease Obligation" means, with respect to any Capital Lease
of any Person, the amount of the obligation of the lessee thereunder that, in
accordance with GAAP, would appear on a balance sheet of such lessee in respect
of such Capital Lease.
"Cash Collateral Account" has the meaning ascribed to it in Annex B.
"Cash Equivalents" has the meaning ascribed to it in Annex B.
"Cash Management Systems" has the meaning ascribed to it in Section
1.8.
"Change of Control" means any of the following: (a) any person or
group of persons (within the meaning of the Securities Exchange Act of 1934)
shall have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of more than 50% of the issued and outstanding shares of
capital Stock of Harvard having the right to vote for the election of directors
of Harvard under ordinary circumstances; (b) during any period of twelve
consecutive calendar months, individuals who at the beginning of such period
constituted the board of directors of Harvard (together with any new directors
whose election by the board of directors of Harvard or whose nomination for
election by the Stockholders of Harvard was approved by a vote of at least
two-thirds of the directors then still in office who either were directors at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason other than death or disability to
constitute a majority of the directors then in office, (c) Harvard ceases to own
and control all of the economic and voting rights associated with all of the
outstanding capital Stock of any Borrower (other than Harvard), or (d) any
Borrower ceases to own and control all of the economic and voting rights
associated with all of the outstanding capital Stock of any of its Subsidiaries,
except as otherwise permitted in Section 6.1.
"Charges" means all federal, state, county, city, municipal, local,
foreign or other governmental taxes (including taxes owed to the PBGC at the
time due and payable), levies, assessments, charges, liens, claims or
encumbrances upon or relating to (a) the Collateral, (b) the Obligations, (c)
the employees, payroll, income or gross receipts of any Credit Party, (d) any
Credit Party's ownership or use of any properties or other assets, or (e) any
other aspect of any Credit Party's business.
"Chattel Paper" means any "chattel paper," as such term is defined
in the Code, now owned or hereafter acquired by any Credit Party, wherever
located.
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"Closing Date" means September 30, 1999.
"Closing Checklist" means the schedule, including all appendices,
exhibits or schedules thereto, listing certain documents and information to be
delivered in connection with the Agreement, the other Loan Documents and the
transactions contemplated thereunder, substantially in the form attached hereto
as Annex D.
"Code" means the Uniform Commercial Code as the same may, from time
to time, be enacted and in effect in the State of New York; provided, that, in
the event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of, or remedies with respect to, Agent's or
any Lender's Lien on any Collateral is governed by the Uniform Commercial Code
as enacted and in effect in a jurisdiction other than the State of New York, the
term "Code" shall mean the Uniform Commercial Code as enacted and in effect in
such other jurisdiction solely for purposes of the provisions thereof relating
to such attachment, perfection, priority or remedies and for purposes of
definitions related to such provisions.
"Collateral" means the property covered by the Security Agreement,
the Mortgages and the other Collateral Documents and any other property, real or
personal, tangible or intangible, now existing or hereafter acquired, that may
at any time be or become subject to a security interest or Lien in favor of
Agent, on behalf of itself and Lenders, to secure the Obligations.
"Collateral Documents" means the Security Agreement, the Pledge
Agreements, the Mortgages, the Patent Security Agreement, the Trademark Security
Agreement and all similar agreements entered into guaranteeing payment of, or
granting a Lien upon property as security for payment of, the Obligations.
"Collateral Reports" means the reports with respect to the
Collateral referred to in Annex F.
"Collection Account" means that certain account of Agent, account
number 502-328-54 in the name of Agent at Bankers Trust Company in New York, New
York, ABA No. 021 001 033, or such other account as may be specified in writing
by Agent as the "Collection Account".
"Commitment Termination Date" means the earliest of (a) September
30, 2001, (b) the date of termination of Lenders' obligations to make Advances
and to incur Letter of Credit Obligations or permit existing Loans to remain
outstanding pursuant to Section 8.2(b), and (c) the date of indefeasible
prepayment in full by Borrowers of the Loans and the cancellation and return (or
stand-by guarantee) of all Letters of Credit or the cash collateralization of
all Letter of Credit Obligations pursuant to Annex B, and the permanent
reduction of the Revolving Loan Commitment to zero dollars ($0).
"Commitments" means (a) as to any Lender, the aggregate of such
Lender's Revolving Loan Commitment as set forth on Annex J to the Agreement or
in the most recent Assignment Agreement executed by such Lender and (b) as to
all Lenders, the aggregate of all Lenders' Revolving Loan Commitments which
aggregate commitment shall be Fifty Million Dollars ($50,000,000) on the Closing
Date, as to each of clauses (a) and (b), as such
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Commitments may be reduced, amortized or adjusted from time to time in
accordance with the Agreement.
"Compliance Certificate" has the meaning ascribed to it in Annex E.
"Concentration Accounts" has the meaning ascribed to it in Annex C.
"Contracts" means all "contracts," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, in any event,
including all contracts, undertakings, or agreements (other than rights
evidenced by Chattel Paper, Documents or Instruments) in or under which any
Credit Party may now or hereafter have any right, title or interest, including
any agreement relating to the terms of payment or the terms of performance of
any Account.
"Control Letter" means a letter agreement between Agent and (i) the
issuer of uncertificated securities with respect to uncertificated securities in
the name of any Credit Party, (ii) a securities intermediary with respect to
securities, whether certificated or uncertificated, securities entitlements and
other financial assets held in a securities account in the name of any Credit
Party, (iii) a futures commission merchant, as applicable, or clearing house
with respect to commodity accounts and commodity contracts held by any Credit
Party, whereby, among other things, the issuer, securities intermediary or
futures commission merchant disclaims any security interest in the applicable
financial assets, acknowledges the Lien of Agent, on behalf of itself and
Lenders, on such financial assets, and agrees to follow the instructions or
entitlement orders of Agent without further consent by the affected Credit
Party.
"Copyright License" means any and all rights now owned or hereafter
acquired by any Credit Party under any written agreement granting any right to
use any Copyright or Copyright registration.
"Copyrights" means all of the following now owned or hereafter
acquired by any Credit Party: (a) all copyrights and General Intangibles of like
nature (whether registered or unregistered), all registrations and recordings
thereof, and all applications in connection therewith, including all
registrations, recordings and applications in the United States Copyright Office
or in any similar office or agency of the United States, any state or territory
thereof, or any other country or any political subdivision thereof, and (b) all
reissues, extensions or renewals thereof.
"Credit Parties" means each Borrower.
"Default" means any event that, with the passage of time or notice
or both, would, unless cured or waived, become an Event of Default.
"Default Rate" has the meaning ascribed to it in Section 1.5(d).
"Disbursement Accounts" has the meaning ascribed to it on Annex C.
"Disclosure Schedules" means the Schedules prepared by Borrowers and
denominated as Disclosure Schedules 1.4 through 6.7 in the Index to the
Agreement.
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"Documents" means any "documents," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, wherever located.
"Dollars" or "$" means lawful currency of the United States of
America.
"EBITDA" means, with respect to any Person for any fiscal period,
without duplication, an amount equal to (a) consolidated net income of such
Person for such period, minus (b) the sum of (i) income tax credits, (ii)
interest income, (iii) gain from extraordinary items for such period, (iv) any
aggregate net gain (but not any aggregate net loss) during such period arising
from the sale, exchange or other disposition of capital assets by such Person
(including any fixed assets, whether tangible or intangible, all inventory sold
in conjunction with the disposition of fixed assets and all securities), and (v)
any other non-cash gains that have been added in determining consolidated net
income, in each case to the extent included in the calculation of consolidated
net income of such Person for such period in accordance with GAAP, but without
duplication, plus (c) the sum of (i) any provision for income taxes, (ii)
Interest Expense, (iii) loss from extraordinary items for such period, (iv) the
amount of non-cash charges (including depreciation and amortization) for such
period, (v) amortized debt discount for such period, and (vi) the amount of any
deduction to consolidated net income as the result of any grant to any members
of the management of such Person of any Stock, in each case to the extent
included in the calculation of consolidated net income of such Person for such
period in accordance with GAAP, but without duplication. For purposes of this
definition, the following items shall be excluded in determining consolidated
net income of a Person: (1) the income (or deficit) of any other Person accrued
prior to the date it became a Subsidiary of, or was merged or consolidated into,
such Person or any of such Person's Subsidiaries; (2) the income (or deficit) of
any other Person (other than a Subsidiary) in which such Person has an ownership
interest, except to the extent any such income has actually been received by
such Person in the form of cash dividends or distributions; (3) the
undistributed earnings of any Subsidiary of such Person to the extent that the
declaration or payment of dividends or similar distributions by such Subsidiary
is not at the time permitted by the terms of any contractual obligation or
requirement of law applicable to such Subsidiary; (4) any restoration to income
of any contingency reserve, except to the extent that provision for such reserve
was made out of income accrued during such period; (5) any write-up of any
asset; (6) any net gain from the collection of the proceeds of life insurance
policies; (7) any net gain arising from the acquisition of any securities, or
the extinguishment, under GAAP, of any Indebtedness, of such Person, (8) in the
case of a successor to such Person by consolidation or merger or as a transferee
of its assets, any earnings of such successor prior to such consolidation,
merger or transfer of assets, and (9) any deferred credit representing the
excess of equity in any Subsidiary of such Person at the date of acquisition of
such Subsidiary over the cost to such Person of the investment in such
Subsidiary.
"Environmental Laws" means all applicable federal, state, local and
foreign laws, statutes, ordinances, codes, rules, standards and regulations, now
or hereafter in effect, and any applicable judicial or administrative
interpretation thereof, including any applicable judicial or administrative
order, consent decree, order or judgment, imposing liability or standards of
conduct for or relating to the regulation and protection of human health,
safety, the environment and natural resources (including ambient air, surface
water, groundwater, wetlands, land surface or subsurface strata, wildlife,
aquatic species and vegetation). Environmental Laws include the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C.
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ss.ss. 9601 et seq.) ("CERCLA"); the Hazardous Materials Transportation
Authorization Act of 1994 (49 U.S.C. ss.ss. 5101 et seq.); the Federal
Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. ss.ss. 136 et seq.); the
Solid Waste Disposal Act (42 U.S.C. ss.ss. 6901 et seq.); the Toxic Substance
Control Act (15 U.S.C. ss.ss. 2601 et seq.); the Clean Air Act (42 U.S.C. ss.ss.
7401 et seq.); the Federal Water Pollution Control Act (33 U.S.C. ss.ss. 1251 et
seq.); the Occupational Safety and Health Act (29 U.S.C. ss.ss. 651 et seq.);
and the Safe Drinking Water Act (42 U.S.C. ss.ss. 300(f) et seq.), and any and
all regulations promulgated thereunder, and all analogous state, local and
foreign counterparts or equivalents and any transfer of ownership notification
or approval statutes.
"Environmental Liabilities" means, with respect to any Person, all
liabilities, obligations, responsibilities, response, remedial and removal
costs, investigation and feasibility study costs, capital costs, operation and
maintenance costs, losses, damages, punitive damages, property damages, natural
resource damages, consequential damages, treble damages, costs and expenses
(including all fees, disbursements and expenses of counsel, experts and
consultants), fines, penalties, sanctions and interest incurred as a result of
or related to any claim, suit, action, investigation, proceeding or demand by
any Person, whether based in contract, tort, implied or express warranty, strict
liability, criminal or civil statute or common law, including any arising under
or related to any Environmental Laws, Environmental Permits, or in connection
with any Release or threatened Release or presence of a Hazardous Material
whether on, at, in, under, from or about or in the vicinity of any real or
personal property.
"Environmental Permits" means all permits, licenses, authorizations,
certificates, approvals or registrations required by any Governmental Authority
under any Environmental Laws.
"Equipment" means all "equipment," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, wherever located and,
in any event, including all such Credit Party's machinery and equipment,
including processing equipment, conveyors, machine tools, data processing and
computer equipment with software and peripheral equipment, and all engineering,
processing and manufacturing equipment, office machinery, furniture, materials
handling equipment, tools, attachments, accessories, automotive equipment,
trailers, trucks, forklifts, molds, dies, stamps, motor vehicles, rolling stock
and other equipment of every kind and nature, trade fixtures and fixtures not
forming a part of real property, together with all additions and accessions
thereto, replacements therefor, all parts therefor, all substitutes for any of
the foregoing, fuel therefor, and all manuals, drawings, instructions,
warranties and rights with respect thereto, and all products and proceeds
thereof and condemnation awards and insurance proceeds with respect thereto.
"ERISA" means the Employee Retirement Income Security Act of 1974
(or any successor legislation thereto), as amended from time to time, and any
regulations promulgated thereunder.
"ERISA Affiliate" means, with respect to any Credit Party, any trade
or business (whether or not incorporated) that, together with such Credit Party,
are treated as a single employer within the meaning of Sections 414(b), (c), (m)
or (o) of the IRC.
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"ERISA Event" means, with respect to any Credit Party or any ERISA
Affiliate, (a) any event described in Section 4043(c) of ERISA with respect to a
Title IV Plan; (b) the withdrawal of any Credit Party or ERISA Affiliate from a
Title IV Plan subject to Section 4063 of ERISA during a plan year in which it
was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (c) the
complete or partial withdrawal of any Credit Party or any ERISA Affiliate from
any Multiemployer Plan; (d) the filing of a notice of intent to terminate a
Title IV Plan or the treatment of a plan amendment as a termination under
Section 4041 of ERISA; (e) the institution of proceedings to terminate a Title
IV Plan or Multiemployer Plan by the PBGC; (f) the failure by any Credit Party
or ERISA Affiliate to make when due required contributions to a Multiemployer
Plan or Title IV Plan unless such failure is cured within 30 days; (g) any other
event or condition that might reasonably be expected to constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Title IV Plan or Multiemployer Plan or for the imposition of
liability under Section 4069 or 4212(c) of ERISA; (h) the termination of a
Multiemployer Plan under Section 4041A of ERISA or the reorganization or
insolvency of a Multiemployer Plan under Section 4241 of ERISA; or (i) the loss
of a Qualified Plan's qualification or tax exempt status; or (j) the termination
of a Plan described in Section 4064 of ERISA.
"ESOP" means a Plan that is intended to satisfy the requirements of
Section 4975(e)(7) of the IRC.
"Event of Default" has the meaning ascribed to it in Section 8.1.
"Fair Labor Standards Act" means the Fair Labor Standards Act, 29
U.S.C. ss.201 et seq.
"Federal Funds Rate" means, for any day, a floating rate equal to
the weighted average of the rates on overnight Federal funds transactions among
members of the Federal Reserve System, as determined by Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System.
"Fees" means any and all fees payable to Agent or any Lender
pursuant to the Agreement or any of the other Loan Documents.
"Financial Covenants" means the financial covenants set forth in
Annex G.
"Financial Statements" means the consolidated and consolidating
income statements, statements of cash flows and balance sheets of Borrowers
delivered in accordance with Section 3.4 of the Agreement and Annex E to the
Agreement.
"Fiscal Month" means any of the monthly accounting periods of
Borrowers.
"Fiscal Quarter" means any of the quarterly accounting periods of
Borrowers, ending on December 31, March 31, June 30 and September 30 of each
year.
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"Fiscal Year" means any of the annual accounting periods of
Borrowers ending on September 30 of each year.
"Fixed Charges" means, with respect to any Person for any fiscal
period, the sum (without duplication) of (a) the aggregate of all Interest
Expense paid or accrued during such period, plus (b) scheduled payments of
principal with respect to Indebtedness during such period.
"Fixed Charge Coverage Ratio" means, with respect to any Person for
any fiscal period, the ratio of EBITDA minus Capital Expenditures minus cash
payments of income taxes to Fixed Charges. In computing Fixed Charges for any
fiscal period, interest and principal payments that are due within one week
after the end of that fiscal period, without duplication, shall be deemed to
have been paid on the last day of that fiscal period.
"Fixtures" means all "fixtures" as such term is defined in the Code,
now owned or hereafter acquired by any Credit Party.
"Funded Debt" means, with respect to any Person, without
duplication, all Indebtedness for borrowed money evidenced by notes, bonds,
debentures, or similar evidences of Indebtedness and that by its terms matures
more than one year from, or is directly or indirectly renewable or extendible at
such Person's option under a revolving credit or similar agreement obligating
the lender or lenders to extend credit over a period of more than one year from
the date of creation thereof, and specifically including Capital Lease
Obligations, current maturities of long-term debt, revolving credit and
short-term debt extendible beyond one year at the option of the debtor, and also
including, in the case of Borrowers, the Obligations and, without duplication,
Guaranteed Indebtedness consisting of guaranties of Funded Debt of other
Persons.
"GAAP" means generally accepted accounting principles in the United
States of America consistently applied, as such term is further defined in Annex
G to the Agreement.
"GE Capital" means General Electric Capital Corporation, a New York
corporation.
"GE Capital Fee Letter" shall mean that certain letter, dated as of
September 30, 1999, between GE Capital and Borrowers with respect to certain
Fees to be paid from time to time by Borrowers to GE Capital.
"General Intangibles" means any "general intangibles," as such term
is defined in the Code, now owned or hereafter acquired by any Credit Party,
and, in any event, including all right, title and interest that such Credit
Party may now or hereafter have in or under any Contract, all customer lists,
Licenses, Copyrights, Trademarks, Patents, and all applications therefor and
reissues, extensions or renewals thereof, rights in Intellectual Property,
interests in partnerships, joint ventures and other business associations,
licenses, permits, copyrights, trade secrets, proprietary or confidential
information, inventions (whether or not patented or patentable), technical
information, procedures, designs, knowledge, know-how, software, data bases,
data, skill, expertise, experience, processes, models, drawings, materials and
records, goodwill (including the goodwill associated with any Trademark or
Trademark License), all rights and claims in or under insurance policies
(including insurance for fire, damage, loss and casualty, whether covering
personal property, real property, tangible rights or intangible rights,
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all liability, life, key man and business interruption insurance, and all
unearned premiums), uncertificated securities, choses in action, deposit,
checking and other bank accounts, rights to receive tax refunds and other
payments, rights of indemnification, all books and records, correspondence,
credit files, invoices and other papers, including without limitation all tapes,
cards, computer runs and other papers and documents in the possession or under
the control of such Credit Party or any computer bureau or service company from
time to time acting for such Credit Party.
"Goods" means any "goods," as defined in the Code, now owned or
hereafter acquired by any Person.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, and any agency, department or other
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guaranteed Indebtedness" means, as to any Person, any obligation of
such Person guaranteeing any indebtedness, lease, dividend, or other obligation
("primary obligation") of any other Person (the "primary obligor") in any
manner, including any obligation or arrangement of such Person to (a) purchase
or repurchase any such primary obligation, (b) advance or supply funds (i) for
the purchase or payment of any such primary obligation or (ii) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet condition of the primary
obligor, (c) purchase property, securities or services primarily for the purpose
of assuring the owner of any such primary obligation of the ability of the
primary obligor to make payment of such primary obligation, or (d) indemnify the
owner of such primary obligation against loss in respect thereof. The amount of
any Guaranteed Indebtedness at any time shall be deemed to be an amount equal to
the lesser at such time of (x) the stated or determinable amount of the primary
obligation in respect of which such Guaranteed Indebtedness is incurred and (y)
the maximum amount for which such Person may be liable pursuant to the terms of
the instrument embodying such Guaranteed Indebtedness, or, if not stated or
determinable, the maximum reasonably anticipated liability (assuming full
performance) in respect thereof.
"Harvard" means Harvard Industries, Inc., a Delaware corporation.
"Hazardous Material" means any substance, material or waste that is
regulated by, or forms the basis of liability now or hereafter under, any
Environmental Laws, including any material or substance that is (a) defined as a
"solid waste," "hazardous waste," "hazardous material," "hazardous substance,"
"extremely hazardous waste," "restricted hazardous waste," "pollutant,"
"contaminant," "hazardous constituent," "special waste," "toxic substance" or
other similar term or phrase under any Environmental Laws, (b) petroleum or any
fraction or by-product thereof, asbestos, polychlorinated biphenyls (PCB's), or
any radioactive substance.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all indebtedness of such Person for borrowed money or for the
deferred purchase price of property payment for which is deferred six (6) months
or more, but excluding obligations to trade creditors incurred in the ordinary
course of business that are not overdue by more than six (6) months unless being
contested in good faith, (b) all reimbursement and other obligations with
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respect to letters of credit, bankers' acceptances and surety bonds, whether or
not matured, (c) all obligations evidenced by notes, bonds, debentures or
similar instruments, (d) all indebtedness created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (e) all Capital Lease Obligations and the present
value (discounted at the Index Rate as in effect on the Closing Date) of future
rental payments under all synthetic leases, (f) all obligations of such Person
under commodity purchase or option agreements or other commodity price hedging
arrangements, in each case whether contingent or matured, (g) all obligations of
such Person under any foreign exchange contract, currency swap agreement,
interest rate swap, cap or collar agreement or other similar agreement or
arrangement designed to alter the risks of that Person arising from fluctuations
in currency values or interest rates, in each case whether contingent or
matured, (h) all Indebtedness referred to above secured by (or for which the
holder of such Indebtedness has an existing right, contingent or otherwise, to
be secured by) any Lien upon or in property or other assets (including accounts
and contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness, and (i) the
Obligations.
"Indemnified Liabilities" has the meaning ascribed to it in Section
1.13.
"Index Rate" means, for any day, a floating rate equal to the higher
of (i) the rate publicly quoted from time to time by The Wall Street Journal as
the "base rate on corporate loans at large U.S. money center commercial banks"
(or, if The Wall Street Journal ceases quoting a base rate of the type
described, the highest per annum rate of interest published by the Federal
Reserve Board in Federal Reserve statistical release H.15 (519) entitled
"Selected Interest Rates" as the Bank prime loan rate or its equivalent), and
(ii) the Federal Funds Rate plus fifty (50) basis points per annum. Each change
in any interest rate provided for in the Agreement based upon the Index Rate
shall take effect at the time of such change in the Index Rate.
"Index Rate Loan" means a Loan or portion thereof bearing interest
by reference to the Index Rate.
"Instruments" means any "instrument," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, wherever located,
and, in any event, including all certificated securities, all certificates of
deposit, and all notes and other, without limitation, evidences of indebtedness,
other than instruments that constitute, or are a part of a group of writings
that constitute, Chattel Paper.
"Intellectual Property" means any and all Licenses, Patents,
Copyrights, Trademarks, trade secrets and customer lists.
"Intercompany Notes" has the meaning ascribed to it in Section 6.3.
"Interest Coverage Ratio" means, with respect to any Person for any
period, the ratio of EBITDA to Interest Expense.
"Interest Expense" means, with respect to any Person for any fiscal
period, interest expense (whether cash or non-cash) of such Person determined in
accordance with
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GAAP for the relevant period ended on such date, including, interest expense
with respect to any Funded Debt of such Person and interest expense for the
relevant period that has been capitalized on the balance sheet of such Person.
"Interest Payment Date" means (a) as to any Index Rate Loan, the
first Business Day of each month to occur while such Loan is outstanding and (b)
as to any LIBOR Loan, the last day of the applicable LIBOR Period; provided,
that, in addition to the foregoing, each of (x) the date upon which all of the
Commitments have been terminated and the Loans have been paid in full and (y)
the Commitment Termination Date shall be deemed to be an "Interest Payment Date"
with respect to any interest that has then accrued under the Agreement.
"Inventory" means any "inventory," as such term is defined in the
Code, now owned or hereafter acquired by any Credit Party, wherever located, and
in any event including inventory, merchandise, goods and other personal property
that are held by or on behalf of any Credit Party for sale or lease or are
furnished or are to be furnished under a contract of service, or that constitute
raw materials, work in process or materials used or consumed or to be used or
consumed in such Credit Party's business or in the processing, production,
packaging, promotion, delivery or shipping of the same, including other
supplies.
"Investment Property" means all "investment property," as such term
is defined in Section 9-115 of the Code in those jurisdictions in which such
definition has been adopted, now owned or hereafter acquired by any Credit
Party, wherever located, including (i) all securities, whether certificated or
uncertificated, including stocks, bonds, interests in limited liability
companies, partnership interests, treasuries, certificates of deposit, and
mutual fund shares; (ii) all securities entitlements of any Credit Party,
including the rights of any Credit Party to any securities account and the
financial assets held by a securities intermediary in such securities account
and any free credit balance or other money owing by any securities intermediary
with respect to that account; (iii) all securities accounts of any Credit Party;
(iv) all commodity contracts of any Credit Party; and (v) all commodity accounts
held by any Credit Party.
"IRC" means the Internal Revenue Code of 1986, as amended, and all
regulations promulgated thereunder.
"IRS" means the Internal Revenue Service.
"Kingston-Warren" means The Kingston-Warren Corporation, a New
Hampshire corporation.
"L/C Issuer" has the meaning ascribed to such term in Annex B.
"L/C Sublimit" has the meaning ascribed to it in Annex B.
"Lenders" means GE Capital, the other Lenders named on the signature
pages of the Agreement, and, if any such Lender shall decide to assign all or
any portion of the Obligations, such term shall include any assignee of such
Lender.
"Letter of Credit Fee" has the meaning ascribed to it in Annex B.
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"Letter of Credit Obligations" means all outstanding obligations
incurred by Agent and Lenders at the request of Borrower Representative, whether
direct or indirect, contingent or otherwise, due or not due, in connection with
the issuance of a reimbursement agreement or guaranty by Agent or purchase of a
participation as set forth in Annex B with respect to any Letter of Credit
including, without limitation the Outstanding Letters of Credit. The amount of
such Letter of Credit Obligations shall equal the maximum amount that may be
payable by Agent or Lenders thereupon or pursuant thereto.
"Letters of Credit" means commercial or standby letters of credit
issued for the account of any Borrower by any L/C Issuer including, without
limitation the Outstanding Letters of Credit, and bankers' acceptances issued by
any Borrower, for which Agent and Lenders have incurred Letter of Credit
Obligations.
"LIBOR Business Day" means a Business Day on which banks in the city
of London are generally open for interbank or foreign exchange transactions.
"LIBOR Loan" means a Loan or any portion thereof bearing interest by
reference to the LIBOR Rate.
"LIBOR Period" means, with respect to any LIBOR Loan, each period
commencing on a LIBOR Business Day selected by Borrower Representative pursuant
to the Agreement and ending one, two or three months thereafter, as selected by
Borrower Representative's irrevocable notice to Agent as set forth in Section
1.5(e); provided that the foregoing provision relating to LIBOR Periods is
subject to the following:
(a) if any LIBOR Period would otherwise end on a day that is not a
LIBOR Business Day, such LIBOR Period shall be extended to the next
succeeding LIBOR Business Day unless the result of such extension would be
to carry such LIBOR Period into another calendar month in which event such
LIBOR Period shall end on the immediately preceding LIBOR Business Day;
(b) any LIBOR Period that would otherwise extend beyond the
Commitment Termination Date shall end two (2) LIBOR Business Days prior to
such date;
(c) any LIBOR Period that begins on the last LIBOR Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such LIBOR Period)
shall end on the last LIBOR Business Day of a calendar month;
(d) Borrower Representative shall select LIBOR Periods so as not to
require a payment or prepayment of any LIBOR Loan during a LIBOR Period
for such Loan; and
(e) Borrower Representative shall select LIBOR Periods so that there
shall be no more than three (3) separate LIBOR Loans in existence at any
one time.
"LIBOR Rate" means for each LIBOR Period, a rate of interest
determined by Agent equal to:
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(a) the offered rate for deposits in United States Dollars for the
applicable LIBOR Period that appears on Telerate Page 3750 as of 11:00
a.m. (London time), on the second full LIBOR Business Day next preceding
the first day of such LIBOR Period (unless such date is not a Business
Day, in which event the next succeeding Business Day will be used);
divided by
(b) a number equal to 1.0 minus the aggregate (but without
duplication) of the rates (expressed as a decimal fraction) of reserve
requirements in effect on the day that is two (2) LIBOR Business Days
prior to the beginning of such LIBOR Period (including basic,
supplemental, marginal and emergency reserves under any regulations of the
Federal Reserve Board or other Governmental Authority having jurisdiction
with respect thereto, as now and from time to time in effect) for
Eurocurrency funding (currently referred to as "Eurocurrency Liabilities"
in Regulation D of such Board which are required to be maintained by a
member bank of the Federal Reserve System.
If such interest rates shall cease to be available from Telerate
News Service, the LIBOR Rate shall be determined from such financial reporting
service or other information as shall be mutually acceptable to Agent and
Borrower Representative.
"License" means any Copyright License, Patent License, Trademark
License or other license of rights or interests now held or hereafter acquired
by any Credit Party.
"Lien" means any mortgage or deed of trust, pledge, hypothecation,
assignment, deposit arrangement, lien, charge, claim, security interest,
easement or encumbrance, or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any lease
or title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of, or agreement to
give, any financing statement perfecting a security interest under the Code or
comparable law of any jurisdiction).
"Litigation" has the meaning ascribed to it in Section 3.13.
"Loan Account" has the meaning ascribed to it in Section 1.12.
"Loan Documents" means the Agreement, the Notes, the Collateral
Documents and all other agreements, instruments, documents and certificates
identified in the Closing Checklist executed and delivered to, or in favor of,
Agent or any Lenders and including all other pledges, powers of attorney,
consents, assignments, contracts, notices, and all other written matter whether
heretofore, now or hereafter executed by or on behalf of any Credit Party, or
any employee of any Credit Party, and delivered to Agent or any Lender in
connection with the Agreement or the transactions contemplated thereby. Any
reference in the Agreement or any other Loan Document to a Loan Document shall
include all appendices, exhibits or schedules thereto, and all amendments,
restatements, supplements or other modifications thereto, and shall refer to the
Agreement or such Loan Document as the same may be in effect at any and all
times such reference becomes operative.
"Loans" means the Revolving Loan.
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"Lock Boxes" has the meaning ascribed to it in Annex C.
"Margin Stock" has the meaning ascribed to it in Section 3.10.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, operations, prospects or financial or other condition of the
Credit Parties considered as a whole, (b) the Borrowers' ability to pay any of
the Loans or any of the other Obligations in accordance with the terms of the
Agreement, (c) the Collateral or Agent's Liens, on behalf of itself and Lenders,
on the Collateral or the priority of such Liens, or (d) Agent's or any Lender's
rights and remedies under the Agreement and the other Loan Documents.
"Maximum Amount" means, as of any date of determination, an amount
equal to the Revolving Loan Commitment of all Lenders as of that date.
"Mortgaged Properties" has the meaning ascribed to it in Annex D.
"Mortgages" means each of the mortgages, deeds of trust, leasehold
mortgages, leasehold deeds of trust, collateral assignments of leases or other
real estate security documents delivered by any Credit Party to Agent on behalf
of itself and Lenders with respect to the Mortgaged Properties, all in form and
substance satisfactory to Agent.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA, and to which any Credit Party or ERISA Affiliate is
making, is obligated to make or has made or been obligated to make,
contributions on behalf of participants who are or were employed by any of them.
"Net Borrowing Availability" means as of any date of determination
as to all Borrowers, the Maximum Amount less the sum of the aggregate Revolving
Loan then outstanding.
"Net Worth" means, with respect to any Person as of any date of
determination, the book value of the assets of such Person, minus the sum of (a)
reserves applicable thereto, and (b) all of such Person's liabilities on a
consolidated basis (including accrued and deferred income taxes), all as
determined in accordance with GAAP.
"Non-Funding Lender" has the meaning ascribed to it in Section
9.9(a)(ii).
"Notes" means, collectively, the Revolving Notes.
"Notice of Conversion/Continuation" has the meaning ascribed to it
in Section 1.5(e).
"Notice of Revolving Credit Advance" has the meaning ascribed to it
in Section 1.1(a).
"Obligations" means all loans, advances, letters of credit, debts,
liabilities and obligations, for the performance of covenants, tasks or duties
or for payment of monetary amounts (whether or not such performance is then
required or contingent, or such amounts are
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liquidated or determinable) owing by any Credit Party to Agent or any Lender,
and all covenants and duties regarding such amounts, of any kind or nature,
present or future, whether or not evidenced by any note, agreement or other
instrument, arising under the Agreement or any of the other Loan Documents. This
term includes all principal, interest (including all interest that accrues after
the commencement of any case or proceeding by or against any Credit Party in
bankruptcy, whether or not allowed in such case or proceeding), Fees, Charges,
expenses, attorneys' fees and any other sum chargeable to any Credit Party under
the Agreement or any of the other Loan Documents.
"Outstanding Letters of Credit" means those Letters of Credit issued
or caused to be issued by Agent prior to the Closing Date, as more fully
described on Exhibit A.
"Patent Security Agreements" means the Patent Security Agreements
made in favor of Agent, on behalf of itself and Lenders, by each applicable
Credit Party.
"Patent License" means rights under any written agreement now owned
or hereafter acquired by any Credit Party granting any right with respect to any
invention on which a Patent is in existence.
"Patents" means all of the following in which any Credit Party now
holds or hereafter acquires any interest: (a) all letters patent of the United
States or of any other country, all registrations and recordings thereof, and
all applications for letters patent of the United States or of any other
country, including registrations, recordings and applications in the United
States Patent and Trademark Office or in any similar office or agency of the
United States, any State or any other country, and (b) all reissues,
continuations, continuations-in-part or extensions thereof.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means a Plan described in Section 3(2) of ERISA.
"Permitted Encumbrances" means the following encumbrances: (a) Liens
for taxes or assessments or other governmental Charges not yet due and payable
or which are being contested in accordance with Section 5.2(b); (b) pledges or
deposits of money securing statutory obligations under workmen's compensation,
unemployment insurance, social security or public liability laws or similar
legislation (excluding Liens under ERISA); (c) pledges or deposits of money
securing bids, tenders, contracts (other than contracts for the payment of
money) or leases to which any Credit Party is a party as lessee made in the
ordinary course of business, surety bonds, appeal bonds and other obligations of
like nature incurred in the ordinary course of business provided that such
surety bonds, appeals bonds or obligations of like nature are not secured or, if
secured, any applicable Liens do not prime the Liens in favor of Agent on behalf
of Lenders; (d) inchoate and unperfected workers', mechanics' or similar liens
arising in the ordinary course of business, so long as such Liens attach only to
Equipment, Fixtures and/or Real Estate; (e) carriers', warehousemen's,
suppliers' or other similar possessory liens arising in the ordinary course of
business and securing liabilities in an outstanding aggregate amount not in
excess of $100,000 at any time, so long as such Liens attach only to Inventory;
(f) deposits securing, or in lieu of, surety, appeal or customs bonds in
proceedings to which any Credit Party is a party; (g) any attachment or judgment
lien not constituting an Event of Default under Section
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8.1(j); (h) zoning restrictions, easements, licenses, or other restrictions on
the use of any Real Estate or other minor irregularities in title (including
leasehold title) thereto, so long as the same do not materially impair the use,
value, or marketability of such Real Estate; (i) presently existing or hereafter
created Liens in favor of Agent, on behalf of Lenders; and (j) Liens expressly
permitted under Section 6.1 and clauses (b) and (d) of Section 6.7 of the
Agreement.
"Person" means any individual, sole proprietorship, partnership,
joint venture, trust, unincorporated organization, association, corporation,
limited liability company, institution, public benefit corporation, other entity
or government (whether federal, state, county, city, municipal, local, foreign,
or otherwise, including any instrumentality, division, agency, body or
department thereof).
"Plan" means, at any time, an "employee benefit plan", as defined in
Section 3(3) of ERISA, that any Credit Party or ERISA Affiliate maintains,
contributes to or has an obligation to contribute to on behalf of participants
who are or were employed by any Credit Party.
"Pledge Agreement" means, the Stockholder Pledge Agreement entered
into on the Closing Date by the applicable Credit Parties and any pledge
agreements entered into after the Closing Date by any Credit Party (as required
by the Agreement or any other Loan Document).
"Prior Credit Agreement" means the Credit Agreement among Credit
Parties, the several lenders from time to time parties thereto, Lehman Brothers
Inc., as Arranger, Lehman Commercial Paper Inc., as Syndication Agent and GE
Capital as Administrative Agent, dated as of November 24, 1998, as amended.
"Prior Lender" means GE Capital and the other lenders party to the
Prior Credit Agreement.
"Prior Lender Obligations" means the "Obligations" as that term is
defined in the Prior Credit Agreement.
"Proceeds" means "proceeds," as such term is defined in the Code
and, in any event, shall include (a) any and all proceeds of any insurance,
indemnity, warranty or guaranty payable to any Credit Party from time to time
with respect to any of the Collateral, (b) any and all payments (in any form
whatsoever) made or due and payable to any Credit Party from time to time in
connection with any requisition, confiscation, condemnation, seizure or
forfeiture of all or any part of the Collateral by any Governmental Authority
(or any Person acting under color of governmental authority), (c) any claim of
any Credit Party against third parties (i) for past, present or future
infringement of any Patent or Patent License, or (ii) for past, present or
future infringement or dilution of any Copyright, Copyright License, Trademark
or Trademark License, or for injury to the goodwill associated with any
Trademark or Trademark License, (d) any recoveries by any Credit Party against
third parties with respect to any litigation or dispute concerning any of the
Collateral, (e) dividends, interest and distributions with respect to Investment
Property, and (f) any and all other amounts from time to time paid or payable
under or in connection with any of the Collateral, upon disposition or
otherwise.
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"Pro Forma" means the unaudited consolidated balance sheet of
Harvard and its Subsidiaries as of September 30, 1999 after giving pro forma
effect to the Related Transactions and the repayment of Harvard's 14 1/2% Senior
Notes.
"Projections" means the Credit Parties' forecasted consolidated and
consolidating: (a) balance sheets; (b) profit and loss statements; (c) cash flow
statements; and (d) capitalization statements, all prepared on a Subsidiary by
Subsidiary or division by division basis, if applicable, and otherwise
consistent with the historical Financial Statements of the Credit Parties,
together with appropriate supporting details and a statement of underlying
assumptions.
"Pro Rata Share" means with respect to all matters relating to any
Lender (a) with respect to the Revolving Loan, the percentage obtained by
dividing (i) the Revolving Loan Commitment of that Lender by (ii) the aggregate
Revolving Loan Commitments of all Lenders and (b) with respect to all Loans on
and after the Commitment Termination Date, the percentage obtained by dividing
(i) the aggregate outstanding principal balance of the Loans held by that
Lender, by (ii) the outstanding principal balance of the Loans held by all
Lenders.
"Public Offering" means a firm underwritten public offering of
common stock registered on form S-1, S-2 or S-3 under the Securities Act of
1933, as amended, by a nationally recognized investment banking firm and after
giving effect to which the issuer shall be qualified for listing on the NASDAQ
National Market, the American Stock Exchange or the New York Stock Exchange.
"Qualified Assignee" means (i)(a) any Lender, any Affiliate of any
Lender and, with respect to any Lender that is an investment fund that invests
in commercial loans, any other investment fund that invests in commercial loans
and that is managed or advised by the same investment advisor as such Lender or
by an Affiliate of such investment advisor, and (b) any commercial bank, savings
and loan association or savings bank or any other entity which is an "accredited
investor" (as defined in Regulation D under the Securities Act) which extends
credit or buys loans as one of its businesses, including insurance companies,
mutual funds, lease financing companies and commercial finance companies; and
(ii) in addition to the criteria set forth in the foregoing clause (i), any such
Assignee shall be a Person which has and maintains a rating of BBB or higher
from S&P and a rating of Baa2 or higher from Moody's and which, through its
applicable lending office, is capable of lending to Borrowers without the
imposition of any withholding or similar taxes; provided that no Affiliate of
any Credit Party and no Person determined by Agent to be acting in the capacity
of a vulture fund or distressed debt purchaser shall be a Qualified Assignee.
"Qualified Plan" means a Pension Plan that is intended to be
tax-qualified under Section 401(a) of the IRC.
"Ratable Share" has the meaning ascribed to it in Section 1.1(b).
"Real Estate" has the meaning ascribed to it in Section 3.6.
"Refinancing" means the repayment in full by Borrowers of the Prior
Lender Obligations on the Closing Date.
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"Related Transactions" means the initial borrowing under the
Revolving Loan on the Closing Date, the Acquisition, the Refinancing, the
payment of all fees, costs and expenses associated with all of the foregoing and
the execution and delivery of all of the Related Transactions Documents.
"Related Transactions Documents" means the Loan Documents, the
Acquisition Agreement and the letter agreements pursuant to which Harvard agrees
to repurchase all of the outstanding 14 1/2% Senior Notes.
"Release" means any release, threatened release, spill, emission,
leaking, pumping, pouring, emitting, emptying, escape, injection, deposit,
disposal, discharge, dispersal, dumping, leaching or migration of Hazardous
Material in the indoor or outdoor environment, including the movement of
Hazardous Material through or in the air, soil, surface water, ground water or
property.
"Requisite Lenders" means Lenders having (a) more than fifty percent
(50%) of the Commitments of all Lenders, or (b) if the Commitments have been
terminated, more than fifty percent (50%) of the aggregate outstanding amount of
all Loans.
"Reserves" means reserves against or Borrowing Availability which
Agent may, in its reasonable credit judgment, establish from time to time.
Without limiting the generality of the foregoing, Reserves established to ensure
the payment of accrued Interest Expenses or Indebtedness shall be deemed to be a
reasonable exercise of Agent's credit judgment.
"Restricted Payment" means, with respect to any Credit Party, (a)
the declaration or payment of any dividend or the incurrence of any liability to
make any other payment or distribution of cash or other property or assets in
respect of Stock; (b) any payment on account of the purchase, redemption,
defeasance, sinking fund or other retirement of such Credit Party's Stock or any
other payment or distribution made in respect thereof, either directly or
indirectly; (c) any payment or prepayment of principal of, premium, if any, or
interest, fees or other charges on or with respect to, and any redemption,
purchase, retirement, defeasance, sinking fund or similar payment and any claim
for rescission with respect to, any Subordinated Debt; (d) any payment made to
redeem, purchase, repurchase or retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire Stock of such Credit
Party now or hereafter outstanding; (e) any payment of a claim for the
rescission of the purchase or sale of, or for material damages arising from the
purchase or sale of, any shares of such Credit Party's Stock or of a claim for
reimbursement, indemnification or contribution arising out of or related to any
such claim for damages or rescission; (f) any payment, loan, contribution, or
other transfer of funds or other property to any Stockholder of such Credit
Party other than payment of compensation in the ordinary course to stockholders
who are employees of such Credit Party; and (g) any payment of management fees
(or other fees of a similar nature) by such Credit Party to any Stockholder of
such Credit Party or its Affiliates.
"Retiree Welfare Plan" means, at any time, a Welfare Plan that
provides for continuing coverage or benefits for any participant or any
beneficiary of a participant after such participant's termination of employment,
other than continuation coverage provided pursuant to
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Section 4980B of the IRC and at the sole expense of the participant or the
beneficiary of the participant.
"Revolving Credit Advance" has the meaning ascribed to it in Section
1.1(a)(i).
"Revolving Lenders" means, as of any date of determination, Lenders
having a Revolving Loan Commitment.
"Revolving Loan" means, at any time, the sum of (i) the aggregate
amount of Revolving Credit Advances outstanding to all Borrowers plus (ii) the
aggregate Letter of Credit Obligations incurred on behalf of any Borrower or all
Borrowers. Unless the context otherwise requires, references to the outstanding
principal balance of the Revolving Loan shall include the outstanding balance of
Letter of Credit Obligations.
"Revolving Loan Commitment" means (a) as to any Lender, the
aggregate commitment of such Lender to make Revolving Credit Advances and/or
incur Letter of Credit Obligations as set forth on Annex J to the Agreement or
in the most recent Assignment Agreement executed by such Lender and (b) as to
all Lenders, the aggregate commitment of all Lenders to make Revolving Credit
Advances and/or incur Letter of Credit Obligations, which aggregate commitment
shall be Fifty Million Dollars ($50,000,000) on the Closing Date, as such amount
may be adjusted, if at all, from time to time in accordance with the Agreement.
"Revolving Note" has the meaning ascribed to it in Section
1.1(a)(ii).
"Security Agreement" means the Security Agreement of even date
herewith entered into by and among Agent, on behalf of itself and Lenders, and
each Credit Party that is a signatory thereto.
"Solvent" means, with respect to any Person on a particular date,
that on such date (a) the fair value of the property of such Person is greater
than the total amount of liabilities, including contingent liabilities, of such
Person; (b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured; (c) such Person does
not intend to, and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and liabilities mature; and
(d) such Person is not engaged in a business or transaction, and is not about to
engage in a business or transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent liabilities
(such as litigation, guaranties and pension plan liabilities) at any time shall
be computed as the amount that, in light of all the facts and circumstances
existing at the time, represents the amount that can be reasonably be expected
to become an actual or matured liability.
"Stock" means all shares, options, warrants, general or limited
partnership interests, membership interests or other equivalents (regardless of
how designated) of or in a corporation, partnership, limited liability company
or equivalent entity whether voting or nonvoting, including common stock,
preferred stock or any other "equity security" (as such term is defined in Rule
3a11-1 of the General Rules and Regulations promulgated by the Securities and
Exchange Commission under the Securities Exchange Act of 1934).
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"Stockholder" means, with respect to any Person, each holder of
Stock of such Person.
"Subordinated Debt" means any Indebtedness of any Credit Party
subordinated to the Obligations in a manner and form satisfactory to Agent and
Required Lenders in their sole discretion, as to right and time of payment and
as to any other rights and remedies thereunder.
"Subsidiary" means, with respect to any Person, (a) any corporation
of which an aggregate of more than fifty percent (50%) of the outstanding Stock
having ordinary voting power to elect a majority of the board of directors of
such corporation (irrespective of whether, at the time, Stock of any other class
or classes of such corporation shall have or might have voting power by reason
of the happening of any contingency) is at the time, directly or indirectly,
owned legally or beneficially by such Person or one or more Subsidiaries of such
Person, or with respect to which any such Person has the right to vote or
designate the vote of fifty percent (50%) or more of such Stock whether by
proxy, agreement, operation of law or otherwise, and (b) any partnership or
limited liability company in which such Person and/or one or more Subsidiaries
of such Person shall have an interest (whether in the form of voting or
participation in profits or capital contribution) of more than fifty percent
(50%) or of which any such Person is a general partner or may exercise the
powers of a general partner. Unless the context otherwise requires, each
reference to a Subsidiary shall be a reference to a Subsidiary of a Borrower.
"Taxes" means taxes, levies, imposts, deductions, Charges or
withholdings and all liabilities with respect thereto, excluding taxes imposed
on or measured by the net income of Agent or a Lender by the jurisdictions under
the laws of which Agent and Lenders are organized or any political subdivision
thereof.
"Termination Date" means the date on which (a) the Loans have been
indefeasibly repaid in full, (b) all other Obligations under the Agreement and
the other Loan Documents have been completely discharged, (c) all Letter of
Credit Obligations have been cash collateralized, canceled or backed by stand-by
letters of credit in accordance with Annex B, and (d) none of Borrowers shall
have any further right to borrow any monies under the Agreement.
"Third Party Interactives" means all Persons with whom any Credit
Party exchanges data electronically in the ordinary course of business,
including, without limitation, customers, suppliers, third-party vendors,
subcontractors, processors-converters, shippers and warehousemen.
"Title IV Plan" means a Pension Plan (other than a Multiemployer
Plan), that is covered by Title IV of ERISA, and that any Credit Party or ERISA
Affiliate maintains, contributes to or has an obligation to contribute to on
behalf of participants who are or were employed by any of them.
"Trademark Security Agreements" means the Trademark Security
Agreements made in favor of Agent, on behalf of Lenders, by each applicable
Credit Party.
"Trademark License" means rights under any written agreement now
owned or hereafter acquired by any Credit Party granting any right to use any
Trademark.
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"Trademarks" means all of the following now owned or hereafter
adopted or acquired by any Credit Party: (a) all trademarks, trade names,
corporate names, business names, trade styles, service marks, logos, other
source or business identifiers, prints and labels on which any of the foregoing
have appeared or appear, designs and general intangibles of like nature (whether
registered or unregistered), all registrations and recordings thereof, and all
applications in connection therewith, including registrations, recordings and
applications in the United States Patent and Trademark Office or in any similar
office or agency of the United States, any state or territory thereof, or any
other country or any political subdivision thereof; (b) all reissues, extensions
or renewals thereof; and (c) all goodwill associated with or symbolized by any
of the foregoing.
"Unfunded Pension Liability" means, at any time, the aggregate
amount, if any, of the sum of (a) the amount by which the present value of all
accrued benefits under each Title IV Plan exceeds the fair market value of all
assets of such Title IV Plan allocable to such benefits in accordance with Title
IV of ERISA, all determined as of the most recent valuation date for each such
Title IV Plan using the actuarial assumptions for funding purposes in effect
under such Title IV Plan, and (b) for a period of five (5) years following a
transaction which might reasonably be expected to be covered by Section 4069 of
ERISA, the liabilities (whether or not accrued) that could be avoided by any
Credit Party or any ERISA Affiliate as a result of such transaction.
"Welfare Plan" means a Plan described in Section 3(i) of ERISA.
"Year 2000 Date-Sensitive System/Component" means, as to any Person,
any system software, network software, applications software, data base,
computer file, embedded microchip, firmware or hardware that accepts, creates,
manipulates, sorts, sequences, calculates, compares or outputs calendar-related
data accurately; such systems and components shall include, without limitation,
mainframe computers, file server/client systems, computer workstations, routers,
hubs, other network-related hardware, and other computer-related software,
firmware or hardware and information processing and delivery systems of any kind
and telecommunications systems and other communications processors, security
systems, alarms, elevators and HVAC systems.
"Year 2000 Problems" shall mean, with respect to each Credit Party,
limitations on the capacity or readiness of any such Credit Party's Year 2000
Date-Sensitive Systems/Components to accurately accept, create, manipulate,
sort, sequence, calculate, compare or output calendar date information with
respect to calendar year 1999 or any subsequent calendar year beginning on or
after January 1, 2000 (including leap year computations), including, without
limitation, exchanges of information among Year 2000 Date-Sensitive
Systems/Components of the Credit Parties and exchanges of information among the
Credit Parties and Year 2000 Date-Sensitive Systems/Components of Third Party
Interactives and functionality of peripheral interfaces, firmware and embedded
microchips.
Rules of construction with respect to accounting terms used in the
Agreement or the other Loan Documents shall be as set forth in Annex G. All
other undefined terms contained in any of the Loan Documents shall, unless the
context indicates otherwise, have the meanings provided for by the Code as in
effect in the State of New York to the extent the same are used or defined
therein. Unless otherwise specified, references in the Agreement or any of the
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Appendices to a Section, subsection or clause refer to such Section, subsection
or clause as contained in the Agreement. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to the Agreement as a whole,
including all Annexes, Exhibits and Schedules, as the same may from time to time
be amended, restated, modified or supplemented, and not to any particular
section, subsection or clause contained in the Agreement or any such Annex,
Exhibit or Schedule.
Wherever from the context it appears appropriate, each term stated
in either the singular or plural shall include the singular and the plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, feminine and neuter genders. The words "including", "includes" and
"include" shall be deemed to be followed by the words "without limitation"; the
word "or" is not exclusive; references to Persons include their respective
successors and assigns (to the extent and only to the extent permitted by the
Loan Documents) or, in the case of governmental Persons, Persons succeeding to
the relevant functions of such Persons; and all references to statutes and
related regulations shall include any amendments of the same and any successor
statutes and regulations. Whenever any provision in any Loan Document refers to
the knowledge (or an analogous phrase) of any Credit Party, such words are
intended to signify that such Credit Party has actual knowledge or awareness of
a particular fact or circumstance or that such Credit Party, if it had exercised
reasonable diligence, would have known or been aware of such fact or
circumstance.
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ANNEX B (Section 1.2)
to
CREDIT AGREEMENT
LETTERS OF CREDIT
(a) Issuance. Subject to the terms and conditions of the Agreement,
Agent and Revolving Lenders agree to incur, from time to time prior to the
Commitment Termination Date, upon the request of Borrower Representative on
behalf of the applicable Borrower and for such Borrower's account, Letter of
Credit Obligations by causing Letters of Credit to be issued (by a bank or other
legally authorized Person selected by or acceptable to Agent in its sole
discretion (each, an "L/C Issuer")) for such Borrower's account and guaranteed
by Agent; provided, that if the L/C Issuer is a Revolving Lender, then such
Letters of Credit shall not be guaranteed by Agent but rather each Revolving
Lender shall, subject to the terms and conditions hereinafter set forth,
purchase (or be deemed to have purchased) risk participations in all such
Letters of Credit issued with the written consent of Agent, as more fully
described in paragraph (b)(ii) below. The aggregate amount of all such Letter of
Credit Obligations shall not at any time exceed the lesser of (i) Fifteen
Million and 00/100 Dollars ($15,000,000) (the "L/C Sublimit"), and (ii) the
Maximum Amount. No such Letter of Credit shall have an expiry date that is more
than one year following the date of issuance thereof, and neither Agent nor
Revolving Lenders shall be under any obligation to incur Letter of Credit
Obligations in respect of, or purchase risk participations in, any Letter of
Credit having an expiry date that is later than the Commitment Termination Date.
(b)(i) Advances Automatic; Participations. In the event that Agent
or any Revolving Lender shall make any payment on or pursuant to any Letter of
Credit Obligation, such payment shall then be deemed automatically to constitute
a Revolving Credit Advance to the applicable Borrower under Section 1.1(a) of
the Agreement regardless of whether a Default or Event of Default has occurred
and is continuing and notwithstanding any Borrower's failure to satisfy the
conditions precedent set forth in Section 2, and each Revolving Lender shall be
obligated to pay its Pro Rata Share thereof in accordance with the Agreement.
The failure of any Revolving Lender to make available to Agent for Agent's own
account its Pro Rata Share of any such Revolving Credit Advance or payment by
Agent under or in respect of a Letter of Credit shall not relieve any other
Revolving Lender of its obligation hereunder to make available to Agent its Pro
Rata Share thereof, but no Revolving Lender shall be responsible for the failure
of any other Revolving Lender to make available such other Revolving Lender's
Pro Rata Share of any such payment.
(ii) If it shall be illegal or unlawful for any Borrower to
incur Revolving Credit Advances as contemplated by paragraph (b)(i) above
because of an Event of Default described in Sections 8.1(h) or (i) or otherwise
or if it shall be illegal or unlawful for any Revolving Lender to be deemed to
have assumed a ratable share of the reimbursement obligations owed to an L/C
Issuer, or if the L/C Issuer is a Revolving Lender, then (i) immediately and
without further action whatsoever, each Revolving Lender shall be deemed to have
irrevocably and unconditionally purchased from Agent (or such L/C Issuer, as the
case may be) an undivided interest and participation equal to such Revolving
Lender's Pro Rata Share (based on the Revolving Loan Commitments) of the Letter
of Credit Obligations in respect of all
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Letters of Credit then outstanding and (ii) thereafter, immediately upon
issuance of any Letter of Credit, each Revolving Lender shall be deemed to have
irrevocably and unconditionally purchased from Agent (or such L/C Issuer, as the
case may be) an undivided interest and participation in such Revolving Lender's
Pro Rata Share (based on the Revolving Loan Commitments) of the Letter of Credit
Obligations with respect to such Letter of Credit on the date of such issuance.
Each Revolving Lender shall fund its participation in all payments or
disbursements made under the Letters of Credit in the same manner as provided in
the Agreement with respect to Revolving Credit Advances.
(c) Cash Collateral. (i) If Borrowers are required to provide cash
collateral for any Letter of Credit Obligations pursuant to the Agreement prior
to the Commitment Termination Date, each Borrower will pay to Agent for the
ratable benefit of itself and Revolving Lenders cash or cash equivalents
acceptable to Agent ("Cash Equivalents") in an amount equal to 105% of the
maximum amount then available to be drawn under each applicable Letter of Credit
outstanding for the benefit of such Borrower. Such funds or Cash Equivalents
shall be held by Agent in a cash collateral account (the "Cash Collateral
Account") maintained at a bank or financial institution acceptable to Agent. The
Cash Collateral Account shall be in the name of the applicable Borrower and
shall be pledged to, and subject to the control of, Agent, for the benefit of
Agent and Lenders, in a manner satisfactory to Agent. Each Borrower hereby
pledges and grants to Agent, on behalf of itself and Lenders, a security
interest in all such funds and Cash Equivalents held in the Cash Collateral
Account from time to time and all proceeds thereof, as security for the payment
of all amounts due in respect of the Letter of Credit Obligations and other
Obligations, whether or not then due. The Agreement, including this Annex B,
shall constitute a security agreement under applicable law.
(ii) If any Letter of Credit Obligations, whether or not then
due and payable, shall for any reason be outstanding on the Commitment
Termination Date, Borrowers shall either (A) provide cash collateral therefor in
the manner described above, or (B) cause all such Letters of Credit and
guaranties thereof to be canceled and returned, or (C) deliver a stand-by letter
(or letters) of credit in guaranty of such Letter of Credit Obligations, which
stand-by letter (or letters) of credit shall be of like tenor and duration (plus
thirty (30) additional days) as, and in an amount equal to 105% of, the
aggregate maximum amount then available to be drawn under, the Letters of Credit
to which such outstanding Letter of Credit Obligations relate and shall be
issued by a Person, and shall be subject to such terms and conditions, as are be
satisfactory to Agent in its sole discretion.
(iii) From time to time after funds are deposited in the Cash
Collateral Account by any Borrower, whether before or after the Commitment
Termination Date, Agent may apply such funds or Cash Equivalents then held in
the Cash Collateral Account to the payment of any amounts, and in such order as
Agent may elect, as shall be or shall become due and payable by such Borrower to
Agent and Lenders with respect to such Letter of Credit Obligations of such
Borrower and, upon the satisfaction in full of all Letter of Credit Obligations
of such Borrower, to any other Obligations of any Borrower then due and payable.
(iv) No Borrower nor any Person claiming on behalf of or
through any Borrower shall have any right to withdraw any of the funds or Cash
Equivalents held in the Cash Collateral Account, except that upon the
termination of all Letter of Credit Obligations and the
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payment of all amounts payable by Borrowers to Agent and Lenders in respect
thereof, any funds remaining in the Cash Collateral Account shall be applied to
other Obligations then due and owing and upon payment in full of such
Obligations, any remaining amount shall be paid to Borrowers or as otherwise
required by law.
(d) Fees and Expenses. Borrowers agree to pay to Agent for the
benefit of Revolving Lenders, as compensation to such Lenders for Letter of
Credit Obligations incurred hereunder, (x) all costs and expenses incurred by
Agent or any Lender on account of such Letter of Credit Obligations, and (y) for
each month during which any Letter of Credit Obligation shall remain
outstanding, a fee (the "Letter of Credit Fee") in an amount equal to two and
one-half percent (2.50%) per annum multiplied by the maximum amount available
from time to time to be drawn under the applicable Letter of Credit. Such fee
shall be paid to Agent for the benefit of the Revolving Lenders in arrears, on
the first day of each month and on the Commitment Termination Date. In addition,
Borrowers shall pay to any L/C Issuer, on demand, such fees (including all per
annum fees), charges and expenses of such L/C Issuer in respect of the issuance,
negotiation, acceptance, amendment, transfer and payment of such Letter of
Credit or otherwise payable pursuant to the application and related
documentation under which such Letter of Credit is issued.
(e) Request for Incurrence of Letter of Credit Obligations. Borrower
Representative shall give Agent at least two (2) Business Days' prior written
notice requesting the incurrence of any Letter of Credit Obligation, specifying
the date such Letter of Credit Obligation is to be incurred, identifying the
beneficiary and the Borrower to which such Letter of Credit Obligation relates
and describing the nature of the transactions proposed to be supported thereby.
The notice shall be accompanied by the form of the Letter of Credit (which shall
be acceptable to the L/C Issuer) to be guaranteed and, to the extent not
previously delivered to Agent, copies of all agreements between any Borrower and
the L/C Issuer pertaining to the issuance of Letters of Credit. Notwithstanding
anything contained herein to the contrary, Letter of Credit applications by
Borrower Representative and approvals by Agent and the L/C Issuer may be made
and transmitted pursuant to electronic codes and security measures mutually
agreed upon and established by and among Borrower Representative, Agent and the
L/C Issuer.
(f) Obligation Absolute. The obligation of Borrowers to reimburse
Agent and Revolving Lenders for payments made with respect to any Letter of
Credit Obligation shall be absolute, unconditional and irrevocable, without
necessity of presentment, demand, protest or other formalities, and the
obligations of each Revolving Lender to make payments to Agent with respect to
Letters of Credit shall be unconditional and irrevocable. Such obligations of
Borrowers and Revolving Lenders shall be paid strictly in accordance with the
terms hereof under all circumstances including the following:
(i) any lack of validity or enforceability of any Letter of Credit
or the Agreement or the other Loan Documents or any other agreement;
(ii) the existence of any claim, setoff, defense or other right that
any Borrower or any of their respective Affiliates or any Lender may at
any time have against a beneficiary or any transferee of any Letter of
Credit (or any Persons or entities for whom any such transferee may be
acting), Agent, any Lender, or any other Person, whether in
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connection with the Agreement, the Letter of Credit, the transactions
contemplated herein or therein or any unrelated transaction (including any
underlying transaction between any Borrower or any of their respective
Affiliates and the beneficiary for which the Letter of Credit was
procured);
(iii) any draft, demand, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) payment by Agent (except as otherwise expressly provided in
paragraph (g)(ii)(C) below) or any L/C Issuer under any Letter of Credit
or guaranty thereof against presentation of a demand, draft or certificate
or other document that does not comply with the terms of such Letter of
Credit or such guaranty;
(v) any other circumstance or event whatsoever, that is similar to
any of the foregoing; or
(vi) the fact that a Default or an Event of Default has occurred and
is continuing.
(g) Indemnification; Nature of Lenders' Duties. (i) In addition to
amounts payable as elsewhere provided in the Agreement, Borrowers hereby agree
to pay and to protect, indemnify, and save harmless Agent and each Lender from
and against any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including attorneys' fees and allocated costs of internal
counsel) that Agent or any Lender may incur or be subject to as a consequence,
direct or indirect, of (A) the issuance of any Letter of Credit or guaranty
thereof, or (B) the failure of Agent or any Lender seeking indemnification or of
any L/C Issuer to honor a demand for payment under any Letter of Credit or
guaranty thereof as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto government or
Governmental Authority, in each case other than to the extent solely as a result
of the gross negligence or willful misconduct of Agent or such Lender (as
finally determined by a court of competent jurisdiction).
(ii) As between Agent and any Lender and Borrowers, Borrowers
assume all risks of the acts and omissions of, or misuse of any Letter of Credit
by beneficiaries of any Letter of Credit. In furtherance and not in limitation
of the foregoing, to the fullest extent permitted by law neither Agent nor any
Lender shall be responsible for: (A) the form, validity, sufficiency, accuracy,
genuineness or legal effect of any document issued by any party in connection
with the application for and issuance of any Letter of Credit, even if it should
in fact prove to be in any or all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) the validity or sufficiency of any instrument
transferring or assigning or purporting to transfer or assign any Letter of
Credit or the rights or benefits thereunder or proceeds thereof, in whole or in
part, that may prove to be invalid or ineffective for any reason; (C) failure of
the beneficiary of any Letter of Credit to comply fully with conditions required
in order to demand payment under such Letter of Credit; provided that, in the
case of any payment by Agent under any Letter of Credit or guaranty thereof,
Agent shall be liable to the extent such payment was made solely as a result of
its gross negligence or willful misconduct (as finally determined by a court of
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competent jurisdiction) in determining that the demand for payment under such
Letter of Credit or guaranty thereof complies on its face with any applicable
requirements for a demand for payment under such Letter of Credit or guaranty
thereof; (D) errors, omissions, interruptions or delays in transmission or
delivery of any messages, by mail, cable, telegraph, telex or otherwise, whether
or not they may be in cipher; (E) errors in interpretation of technical terms;
(F) any loss or delay in the transmission or otherwise of any document required
in order to make a payment under any Letter of Credit or guaranty thereof or of
the proceeds thereof; (G) the credit of the proceeds of any drawing under any
Letter of Credit or guaranty thereof; and (H) any consequences arising from
causes beyond the control of Agent or any Lender. None of the above shall
affect, impair, or prevent the vesting of any of Agent's or any Lender's rights
or powers hereunder or under the Agreement.
(iii) Nothing contained herein shall be deemed to limit or to
expand any waivers, covenants or indemnities made by Borrowers in favor of any
L/C Issuer in any letter of credit application, reimbursement agreement or
similar document, instrument or agreement between or among Borrowers and such
L/C Issuer.
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<PAGE>
ANNEX C (Section 1.8)
to
CREDIT AGREEMENT
CASH MANAGEMENT SYSTEMS
Each Borrower shall, and shall cause its Subsidiaries to, establish
and maintain the Cash Management Systems described below:
(a) On or before the Closing Date and until the Termination Date,
each Borrower shall (i) establish lock boxes ("Lock Boxes") at one or more of
the banks set forth in Disclosure Schedule (3.19), and shall request in writing
and otherwise take such reasonable steps to ensure that all Account Debtors
forward payment directly to such Lock Boxes, and (ii) deposit and cause its
Subsidiaries to deposit or cause to be deposited promptly, and in any event no
later than the first Business Day after the date of receipt thereof, all cash,
checks, drafts or other similar items of payment relating to or constituting
payments made in respect of any and all Collateral (whether or not otherwise
delivered to a Lock Box) into one or more bank accounts in such Borrower's name
or any such Subsidiary's name (each a "Borrower Account" and collectively, the
"Borrower Accounts") at a bank identified in Disclosure Schedule (3.19) (each, a
"Relationship Bank"). On or before the Closing Date, each Borrower shall have
established a concentration account in its name (each a "Concentration Account"
and collectively, the "Concentration Accounts") at the bank or banks that shall
be designated as the Concentration Account bank for each such Borrower in
Disclosure Schedule (3.19) (each a "Concentration Account Bank" and
collectively, the "Concentration Account Banks"), which banks shall be
satisfactory to Agent.
(b) Each Borrower may maintain, in its name, an account (each a
"Disbursement Account" and collectively, the "Disbursement Accounts") at a bank
acceptable to Agent into which Agent shall, from time to time, deposit proceeds
of Revolving Credit Advances made to such Borrower pursuant to Section 1.1 for
use by such Borrower solely in accordance with the provisions of Section 1.4.
(c) On or before the Closing Date (or such later date as Agent shall
consent to in writing), each Concentration Account Bank, each bank where a
non-payroll Disbursement Account is maintained and all other Relationship Banks,
shall have entered into tri-party blocked account agreements with Agent, for the
benefit of itself and Lenders, and the applicable Borrower and Subsidiaries
thereof, as applicable, in form and substance acceptable to Agent, which shall
become operative on or prior to the Closing Date. Each such blocked account
agreement shall provide, among other things, that (i) all items of payment
deposited in such account and proceeds thereof deposited in the applicable
Concentration Account are held by such bank as agent or bailee-in-possession for
Agent, on behalf of itself and Lenders, (ii) the bank executing such agreement
has no rights of setoff or recoupment or any other claim against such account,
as the case may be, other than for payment of its service fees and other charges
directly related to the administration of such account and for returned checks
or other items of payment, and (iii) from and after the Closing Date (A) with
respect to banks at which a Borrower Account
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is maintained, such bank agrees to forward immediately all amounts in each
Borrower Account to such Borrower's Concentration Account Bank and to commence
the process of daily sweeps from such Borrower Account into the applicable
Concentration Account and (B) with respect to each Concentration Account Bank,
such bank agrees to immediately forward all amounts received in the applicable
Concentration Account to the Collection Account through daily sweeps from such
Concentration Account into the Collection Account.
(d) So long as no Default or Event of Default has occurred and is
continuing, Borrowers may amend Disclosure Schedule (3.19) to add or replace a
Relationship Bank, Lock Box or Borrower Account or to replace any Concentration
Account or any Disbursement Account; provided, that (i) Agent shall have
consented in writing in advance to the opening of such account or Lock Box with
the relevant bank and (ii) prior to the time of the opening of such account or
Lock Box, the applicable Borrower or its Subsidiaries thereof, as applicable,
and such bank shall have executed and delivered to Agent a tri-party blocked
account agreement, in form and substance satisfactory to Agent. Borrowers shall
close any of their accounts (and establish replacement accounts in accordance
with the foregoing sentence) promptly and in any event within thirty (30) days
following notice from Agent that the creditworthiness of any bank holding an
account is no longer acceptable in Agent's reasonable judgment, or as promptly
as practicable and in any event within sixty (60) days following notice from
Agent that the operating performance, funds transfer or availability procedures
or performance with respect to accounts or Lock Boxes of the bank holding such
accounts or Agent's liability under any tri-party blocked account agreement with
such bank is no longer acceptable in Agent's reasonable judgment.
(e) The Lock Boxes, Borrower Accounts, Disbursement Accounts and the
Concentration Accounts shall be cash collateral accounts, with all cash, checks
and other similar items of payment in such accounts securing payment of the
Loans and all other Obligations, and in which each Borrower and each Subsidiary
thereof shall have granted a Lien to Agent, on behalf of itself and Lenders,
pursuant to the Security Agreement.
(f) All amounts deposited in the Collection Account shall be deemed
received by Agent in accordance with Section 1.10 and shall be applied (and
allocated) by Agent in accordance with Section 1.11. In no event shall any
amount be so applied unless and until such amount shall have been credited in
immediately available funds to the Collection Account.
(g) Each Borrower shall and shall cause its Affiliates, officers,
employees, agents, directors or other Persons acting for or in concert with such
Borrower (each a "Related Person") to (i) hold in trust for Agent, for the
benefit of itself and Lenders, all checks, cash and other items of payment
received by such Borrower or any such Related Person, and (ii) within one (1)
Business Day after receipt by such Borrower or any such Related Person of any
checks, cash or other items of payment, deposit the same into a Borrower Account
of such Borrower. Each Borrower and each Related Person thereof acknowledges and
agrees that all cash, checks or other items of payment constituting, proceeds of
Collateral are the property of Agent and Lenders. All proceeds of the sale or
other disposition of any Collateral, shall be deposited directly into the
applicable Borrower Accounts.
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(h) Notwithstanding the foregoing, Borrowers shall be entitled to
receive directly all items deposited in each Concentration Account until such
time as (i) an Event of Default has occurred or (ii) the total amount of
outstanding Revolving Credit Advances is $25,000,000 or more. Upon the
occurrence of (i) and/or (ii) above, Agent may notify each Concentration Account
Bank, each bank where a Disbursement Account is maintained and all other
Relationship Banks that all payments and proceeds deposited in any Borrower
Accounts at such banks shall be delivered only to Agent.
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ANNEX D (Section 2.1(a))
to
CREDIT AGREEMENT
CLOSING CHECKLIST
In addition to, and not in limitation of, the conditions described in Section
2.1 of the Agreement, pursuant to Section 2.1(a), the following items must be
received by Agent in form and substance satisfactory to Agent on or prior to the
Closing Date (each capitalized term used but not otherwise defined herein shall
have the meaning ascribed thereto in Annex A to the Agreement):
A. Appendices. All Appendices to the Agreement, in form and
substance satisfactory to Agent.
B. Revolving Notes. Duly executed originals of the Revolving Notes
for each applicable Lender, dated the Closing Date.
C. Security Agreement. Duly executed originals of the Security
Agreement, dated the Closing Date, and all instruments, documents and agreements
executed pursuant thereto.
D. Insurance. Satisfactory evidence that the insurance policies
required by Section 5.4 are in full force and effect, together with appropriate
evidence showing loss payable and/or additional insured clauses or endorsements,
as requested by Agent, in favor of Agent, on behalf of Lenders.
E. Security Interests and Code Filings.
(a) Evidence satisfactory to Agent that Agent (for the benefit
of itself and Lenders) has a valid and perfected first priority security
interest in the Collateral, including (i) such documents duly executed by each
Credit Party (including financing statements under the Code and other applicable
documents under the laws of any jurisdiction with respect to the perfection of
Liens) as Agent may request in order to perfect its security interests in the
Collateral and (ii) copies of Code search reports listing all effective
financing statements that name any Credit Party as debtor, together with copies
of such financing statements, none of which shall cover the Collateral, except
for those relating to the Prior Lender Obligations (all of which shall be
terminated on the Closing Date).
(b) Evidence satisfactory to Agent, including copies, of all
UCC-1 and other financing statements filed in favor of any Credit Party with
respect to each location, if any, at which Inventory may be consigned.
(c) Control Letters from (i) all issuers of uncertificated
securities and financial assets held by each Borrower, (ii) all securities
intermediaries with respect to all securities accounts and securities
entitlements of each Borrower, and (iii) all futures commission agents and
clearing houses with respect to all commodities contracts and commodities
accounts held by any Borrower.
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F. Payoff Letter; Termination Statements. Copies of a duly executed
payoff letter, in form and substance satisfactory to Agent, by and between all
parties to the Prior Lender loan documents evidencing repayment in full of all
Prior Lender Obligations, together with (a) UCC-3 or other appropriate
termination statements, in form and substance satisfactory to Agent, manually
signed by the Prior Lender releasing all liens of Prior Lender upon any of the
personal property of each Credit Party, and (b) termination of all blocked
account agreements, bank agency agreements or other similar agreements or
arrangements or arrangements in favor of Prior Lender or relating to the Prior
Lender Obligations.
G. Intellectual Property Security Agreements. Duly executed
originals of Trademark Security Agreements and Patent Security Agreements, each
dated the Closing Date and signed by each Credit Party which owns Trademarks, or
Patents, as applicable, all in form and substance satisfactory to Agent,
together with all instruments, documents and agreements executed pursuant
thereto.
H. Initial Notice of Revolving Credit Advance. Duly executed
originals of a Notice of Revolving Credit Advance, dated the Closing Date, with
respect to the initial Revolving Credit Advance to be requested by Borrower
Representative on the Closing Date.
I. Letter of Direction. Duly executed originals of a letter of
direction from Borrower Representative addressed to Agent, on behalf of itself
and Lenders, with respect to the disbursement on the Closing Date of the
proceeds of the initial Revolving Credit Advance.
J. Cash Management System; Blocked Account Agreements. Evidence
satisfactory to Agent that, as of the Closing Date, Cash Management Systems
complying with Annex C to the Agreement have been established and are currently
being maintained in the manner set forth in such Annex C, together with copies
of duly executed tri-party blocked account and lock box agreements, satisfactory
to Agent, with the banks as required by Annex C.
K. Charter and Good Standing. For each Credit Party, such Person's
(a) charter and all amendments thereto, (b) good standing certificates
(including verification of tax status) in its state of incorporation and (c)
good standing certificates (including verification of tax status) and
certificates of qualification to conduct business in each jurisdiction where its
ownership or lease of property or the conduct of its business requires such
qualification, each dated a recent date prior to the Closing Date and certified
by the applicable Secretary of State or other authorized Governmental Authority.
L. Bylaws and Resolutions. For each Credit Party, (a) such Person's
bylaws, together with all amendments thereto and (b) resolutions of such
Person's Board of Directors and stockholders, approving and authorizing the
execution, delivery and performance of the Loan Documents to which such Person
is a party and the transactions to be consummated in connection therewith, each
certified as of the Closing Date by such Person's corporate secretary or an
assistant secretary as being in full force and effect without any modification
or amendment.
M. Incumbency Certificates. For each Credit Party, signature and
incumbency certificates of the officers of each such Person executing any of the
Loan
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Documents, certified as of the Closing Date by such Person's corporate secretary
or an assistant secretary as being true, accurate, correct and complete.
N. Opinions of Counsel. Duly executed originals of opinions of
Sonnenschein, Nath & Rosenthal, counsel for the Credit Parties, together with
any local counsel opinions requested by Agent, each in form and substance
satisfactory to Agent and its counsel, dated the Closing Date, and each
accompanied by a letter addressed to such counsel from the Credit Parties,
authorizing and directing such counsel to address its opinion to Agent, on
behalf of Lenders, and to include in such opinion an express statement to the
effect that Agent and Lenders are authorized to rely on such opinion.
O. Pledge Agreements. Duly executed originals of each of the Pledge
Agreement accompanied by (as applicable) (a) share certificates representing all
of the outstanding Stock being pledged pursuant to such Pledge Agreement and
stock powers for such share certificates executed in blank and (b) the original
Intercompany Notes and other instruments evidencing Indebtedness being pledged
pursuant to such Pledge Agreement, duly endorsed in blank.
P. Accountants' Letters. A letter from the Credit Parties to their
independent auditors authorizing the independent certified public accountants of
the Credit Parties to communicate with Agent and Lenders in accordance with
Section 4.2.
Q. Appointment of Agent for Service. An appointment of CT
Corporation as each Credit Party's agent for service of process.
R. Fee Letter. Duly executed originals of the GE Capital Fee Letter.
S. Officer's Certificate. Agent shall have received duly executed
originals of a certificate of the Chief Financial Officer of each Borrower,
dated the Closing Date, stating that, since September 30, 1998 (a) no event or
condition has occurred or is existing that could reasonably be expected to have
a Material Adverse Effect; (b) there has been no material adverse change in the
industry in which any Borrower operates; (c) no Litigation has been commenced
which, if successful, would have a Material Adverse Effect or could challenge
any of the transactions contemplated by the Agreement and the other Loan
Documents; (d) there have been no Restricted Payments made by any Credit Party;
and (e) there has been no material increase in liabilities, liquidated or
contingent, and no material decrease in assets of any Borrower or any of its
Subsidiaries.
T. Waivers. Agent, on behalf of Lenders, shall have received
landlord waivers and consents, bailee letters and mortgagee agreements in form
and substance satisfactory to Agent, in each case as required pursuant to
Section 5.9.
U. Mortgages. Mortgages covering all of the Real Estate (the
"Mortgaged Properties") together with: (a) title insurance policies, current
as-built surveys, zoning letters and certificates of occupancy, in each case
satisfactory in form and substance to Agent, in its sole discretion; (b)
evidence that counterparts of the Mortgages have been recorded in all places to
the extent necessary or desirable, in the judgment of Agent, to create a valid
and enforceable first priority lien (subject to Permitted Encumbrances) on each
Mortgaged Property in favor of Agent
D-3
<PAGE>
for the benefit of itself and Lenders (or in favor of such other trustee as may
be required or desired under local law); and (c) an opinion of counsel in each
state in which any Mortgaged Property is located in form and substance and from
counsel satisfactory to Agent.
V. Environmental Reports. Agent shall have received Phase I
Environmental Site Assessment Reports, consistent with American Society for
Testing and Materials (ASTM) Standard E 1527-94 and applicable state
requirements, on all of the Real Estate, dated no more than 12 months prior to
the Closing Date, prepared by environmental engineers satisfactory to Agent, all
in form and substance satisfactory to Agent, in its sole discretion; and Agent
shall have further received such environmental review and audit reports,
including Phase II reports, with respect to the Real Estate of any Credit Party
as Agent shall have requested, and Agent shall be satisfied, in its sole
discretion, with the contents of all such environmental reports. Agent shall
have received letters executed by the environmental firms preparing such
environmental reports, in form and substance satisfactory to Agent, authorizing
Agent and Lenders to rely on such reports.
W. Appraisals. Agent shall have received appraisals as to all
Equipment and as to each of the Mortgaged Properties, each of which shall be in
form and substance satisfactory to Agent.
X. Audited Financials; Financial Condition. Agent shall have
received Borrowers' final Financial Statements for their Fiscal Year ended
September 30, 1998, audited by Arthur Andersen LLP. Each Borrower shall have
provided Agent with its current operating statements, a consolidated and
consolidating balance sheet and statement of cash flows, the Pro Forma and
Projections, in each case in form and substance satisfactory to Agent, and Agent
shall be satisfied, in its sole discretion, with all of the foregoing. Agent
shall have further received a certificate of the Chief Executive Officer and/or
the Chief Financial Officer of each Borrower, based on such Pro Forma and
Projections, to the effect that (a) Borrowers on a consolidated basis will be
Solvent upon the consummation of the transactions contemplated herein; (b) the
Pro Forma fairly presents the financial condition of such Borrower as of the
date thereof after giving effect to the transactions contemplated by the Loan
Documents; (c) the Projections are based upon estimates and assumptions stated
therein, all of which such Borrower believes to be reasonable and fair in light
of current conditions and current facts known to such Borrower and, as of the
Closing Date, reflect such Borrower's good faith and reasonable estimates of its
future financial performance and of the other information projected therein for
the period set forth therein it being recognized by the Lenders that such
financial information as it relates to future events is not to be viewed as fact
and that actual results during the period or periods covered by such financial
information may differ from the projected results set forth therein by a
material amount; and (d) containing such other statements with respect to the
solvency of such Borrower and matters related thereto as Agent shall request.
Y. Other Documents. Such other certificates, documents and
agreements respecting any Credit Party as Agent may, in its sole discretion,
request.
D-4
<PAGE>
ANNEX E (Section 4.1(a))
to
CREDIT AGREEMENT
FINANCIAL STATEMENTS AND PROJECTIONS -- REPORTING
Borrowers shall deliver or cause to be delivered to Agent or to
Agent and Lenders, as indicated, the following:
(a) Monthly Financials. To Agent and Lenders, within forty-five (45)
days after the end of each Fiscal Month, financial information regarding
Borrowers and their Subsidiaries, certified by the Chief Financial Officer of
Borrower Representative, consisting of consolidated (i) unaudited balance sheets
as of the close of such Fiscal Month and the related statements of income and
cash flows for that portion of the Fiscal Year ending as of the close of such
Fiscal Month; and (ii) unaudited statements of income and cash flows for such
Fiscal Month, setting forth in comparative form the figures for the
corresponding period in the prior year (done on a pro forma basis giving effect
to the Acquisition) and the figures contained in the Projections for such Fiscal
Year, all prepared in accordance with GAAP (subject to normal year-end
adjustments). Such financial information shall be accompanied by the
certification of the Chief Financial Officer of Borrower Representative that (i)
such financial information presents fairly in accordance with GAAP (subject to
normal year-end adjustments) the financial position and results of operations of
Borrowers and their Subsidiaries, on a consolidated basis, in each case as at
the end of such Fiscal Month and for that portion of the Fiscal Year then ended
and (ii) any other information presented is true, correct and complete in all
material respects and that there was no Default or Event of Default in existence
as of such time or, if a Default or Event of Default has occurred and is
continuing, describing the nature thereof and all efforts undertaken to cure
such Default or Event of Default.
(b) Quarterly Financials. To Agent and Lenders, within forty-five
(45) days after the end of each Fiscal Quarter, consolidated and consolidating
financial information regarding Borrowers and their Subsidiaries, certified by
the Chief Financial Officer of Borrower Representative, including (i) unaudited
balance sheets as of the close of such Fiscal Quarter and the related statements
of income and cash flow for that portion of the Fiscal Year ending as of the
close of such Fiscal Quarter and (ii) unaudited statements of income and cash
flows for such Fiscal Quarter, in each case setting forth in comparative form
the figures for the corresponding period in the prior year and the figures
contained in the Projections for such Fiscal Year, all prepared in accordance
with GAAP (subject to normal year-end adjustments). Such financial information
shall be accompanied by (A) a statement in reasonable detail (each, a
"Compliance Certificate" showing the calculations used in determining compliance
with each of the Financial Covenants that is tested on a quarterly basis and (B)
the certification of the Chief Financial Officer of Borrower Representative that
(i) such financial information presents fairly in accordance with GAAP (subject
to normal year-end adjustments) the financial position, results of operations
and statements of cash flows of Borrowers and their Subsidiaries, on both a
consolidated and consolidating basis, as at the end of such Fiscal Quarter and
for that portion of the Fiscal Year then ended, (ii) any other information
presented is true, correct and complete in all material respects and that there
was no Default or Event of Default in existence as of such time or, if a Default
or Event of Default has occurred and is continuing, describing the nature
E-1
<PAGE>
thereof and all efforts undertaken to cure such Default or Event of Default. In
addition, Borrowers shall deliver to Agent and Lenders, within forty-five (45)
days after the end of each Fiscal Quarter, a management discussion and analysis
that includes a comparison to budget for that Fiscal Quarter and a comparison of
performance for that Fiscal Quarter to the corresponding period in the prior
year.
(c) Operating Plan. To Agent and Lenders, as soon as available, but
not later than forty-five (45) days after the end of each Fiscal Year, an annual
operating plan for each Borrower, approved by the Board of Directors of such
Borrower, for the following Fiscal Year, which will (i) include a statement of
all of the material assumptions on which such plan is based, (ii) include
monthly balance sheets and a monthly budget for the following year and (iii)
integrate sales, gross profits, operating expenses, operating profit and cash
flow projections, all prepared on the same basis and in similar detail as that
on which operating results are reported (and in the case of cash flow
projections, representing management's good faith estimates of future financial
performance based on historical performance), and including plans for personnel,
Capital Expenditures and facilities.
(d) Annual Audited Financials. To Agent and Lenders, within ninety
(90) days after the end of each Fiscal Year, audited Financial Statements for
Borrowers and their Subsidiaries on a consolidated and (unaudited) consolidating
basis, consisting of balance sheets and statements of income and retained
earnings and cash flows, setting forth in comparative form in each case the
figures for the previous Fiscal Year, which Financial Statements shall be
prepared in accordance with GAAP and certified without qualification, by an
independent certified public accounting firm of national standing or otherwise
acceptable to Agent. Such Financial Statements shall be accompanied by (i) a
statement prepared in reasonable detail showing the calculations used in
determining compliance with each of the Financial Covenants, and (ii) the
certification of the Chief Executive Officer or Chief Financial Officer of
Borrowers that all such Financial Statements present fairly in accordance with
GAAP the financial position, results of operations and statements of cash flows
of Borrowers and their Subsidiaries on a consolidated and consolidating basis,
as at the end of such Fiscal Year and for the period then ended, and that there
was no Default or Event of Default in existence as of such time or, if a Default
or Event of Default has occurred and is continuing, describing the nature
thereof and all efforts undertaken to cure such Default or Event of Default.
(e) Management Letters. To Agent and Lenders, within five (5)
Business Days after receipt thereof by any Credit Party, copies of all
management letters, exception reports or similar letters or reports received by
such Credit Party from its independent certified public accountants.
(f) Default Notices. To Agent and Lenders, as soon as practicable,
and in any event within five (5) Business Days after an executive officer of any
Borrower has actual knowledge of the existence of any Default, Event of Default
or other event that has had a Material Adverse Effect, telephonic or telecopied
notice specifying the nature of such Default or Event of Default or other event,
including the anticipated effect thereof, which notice, if given telephonically,
shall be promptly confirmed in writing on the next Business Day.
E-2
<PAGE>
(g) SEC Filings and Press Releases. To Agent and Lenders, promptly
upon their becoming available, copies of: (i) all Financial Statements, reports,
notices and proxy statements made publicly available by any Credit Party to its
security holders; (ii) all regular and periodic reports and all registration
statements and prospectuses, if any, filed by any Credit Party with any
securities exchange or with the Securities and Exchange Commission or any
governmental or private regulatory authority; and (iii) all press releases and
other statements made available by any Credit Party to the public concerning
material changes or developments in the business of any such Person.
(h) Subordinated Debt and Equity Notices. To Agent, as soon as
practicable, copies of all material written notices given or received by any
Credit Party with respect to any Subordinated Debt or Stock of such Person, and,
within two (2) Business Days after any Credit Party obtains knowledge of any
matured or unmatured event of default with respect to any Subordinated Debt,
notice of such event of default.
(i) Supplemental Schedules. To Agent, supplemental disclosures, if
any, required by Section 5.6.
(j) Litigation. To Agent in writing, promptly upon learning thereof,
notice of any Litigation commenced or threatened against any Credit Party that
(i) seeks damages in excess of $250,000, (ii) seeks injunctive relief, (iii) is
asserted or instituted against any Plan, its fiduciaries or its assets or
against any Credit Party or ERISA Affiliate in connection with any Plan, (iv)
alleges criminal misconduct by any Credit Party, (v) alleges the violation of
any law regarding, or seeks remedies in connection with, any Environmental
Liabilities or (vi) involves any product recall.
(k) Insurance Notices. To Agent, disclosure of losses or casualties
required by Section 5.4.
(l) Lease Default Notices. To Agent, copies of (i) any and all
default notices received under or with respect to any leased location or public
warehouse where Collateral is located, and (ii) such other notices or documents
as Agent may request in its reasonable discretion.
(m) Lease Amendments. To Agent, copies of all material amendments to
real estate leases.
(n) Other Documents. To Agent and Lenders, such other financial and
other information respecting any Credit Party's business or financial condition
as Agent or any Lender shall, from time to time, request.
E-3
<PAGE>
ANNEX F (Section 4.1(b))
to
CREDIT AGREEMENT
COLLATERAL REPORTS
Borrowers shall deliver or cause to be delivered the following:
(a) To Agent, upon its request, and in any event no less frequently
than fifteen (15) days after the end of each Fiscal Month (together with a copy
of all or any part of the following reports requested by any Lender in writing
after the Closing Date), each of the following reports, each of which shall be
prepared by the applicable Borrower as of the last day of the immediately
preceding Fiscal Month:
(i) with respect to each Borrower, a summary of Inventory by
location and type accompanied by such supporting detail and documentation
as shall be requested by Agent in its reasonable discretion; and
(ii) with respect to each Borrower, a monthly summary trial
balance showing Accounts outstanding aged from invoice due date as
follows: 1 to 30 days, 31 to 60 days, 61 to 90 days and 91 days or more,
accompanied by such supporting detail and documentation as shall be
requested by Agent in its reasonable discretion.
(b) To Agent, on a weekly basis on the third Business Day of each
week or at such more frequent intervals as Agent may request from time to time
(together with a copy of all or any part of such delivery requested by any
Lender in writing after the Closing Date), collateral reports with respect to
each Borrower, including all additions and reductions (cash and non-cash) with
respect to Accounts of such Borrower, in each case accompanied by such
supporting detail and documentation as shall be requested by Agent in its
reasonable discretion each of which shall be prepared by the applicable Borrower
as of the last day of the immediately preceding week;
(c) To Agent, upon its reasonable request, at the time of delivery
of each of the monthly Financial Statements delivered pursuant to Annex E, a
reconciliation of the Accounts trial balance and month-end Inventory reports of
each Borrower to such Borrower's general ledger and monthly Financial Statements
delivered pursuant to such Annex E, in each case accompanied by such supporting
detail and documentation as shall be requested by Agent in its reasonable
discretion;
(d) To Agent, upon its reasonable request, at the time of delivery
of each of the quarterly or annual Financial Statements delivered pursuant to
Annex E, (i) a listing of government contracts of each Borrower subject to the
Federal Assignment of Claims Act of 1940; and (ii) a list of any applications
for the registration of any Patent, Trademark or Copyright filed by a Credit
Party with the United States Patent and Trademark Office, the United States
Copyright Office or any similar office or agency in the prior Fiscal Quarter;
(e) Upon Agent's reasonable request, each Borrower, at its own
expense, shall deliver to Agent the results of each physical verification, if
any, that such Borrower or any of its
F-1
<PAGE>
Subsidiaries may in their discretion have made, or caused any other Person to
have made on their behalf, of all or any portion of their Inventory (and, if a
Default or an Event of Default has occurred and is continuing, each Borrower
shall, upon the request of Agent, conduct, and deliver the results of, such
physical verifications as Agent may require);
(f) Each Borrower, at its own expense, shall deliver to Agent such
appraisals of its assets as Agent may request at any time after the occurrence
and during the continuance of a Default or an Event of Default, such appraisals
to be conducted by an appraiser, and in form and substance, satisfactory to
Agent; and
(g) Such other reports, statements and reconciliations with respect
to the Collateral of any or all Credit Parties as Agent shall from time to time
request in its reasonable discretion.
F-2
<PAGE>
ANNEX G (Section 6.10)
to
CREDIT AGREEMENT
FINANCIAL COVENANTS
Borrowers shall not breach or fail to comply with any of the
following financial covenants, each of which shall be calculated in accordance
with GAAP consistently applied:
(a) Maximum Capital Expenditures. Borrowers and their Subsidiaries
on a consolidated basis shall not make Capital Expenditures during any twelve
(12) month period ending on September 30 of each year in excess of $17,000,000
in the aggregate.
(b) Fixed Charge Coverage Ratio. Borrowers and their Subsidiaries
shall have on a consolidated basis at the end of each Fiscal Quarter set forth
below, a Fixed Charge Coverage Ratio for the 12-month period then ended (or with
respect to the Fiscal Quarters ending on or before March 31, 2000 and June 30,
2000 for the 6-month and 9-month periods then ended, respectively) of not less
than the following:
2.00 to 1.0 for the Fiscal Quarter ending March 31, 2000
2.00 to 1.0 for the Fiscal Quarter ending June 30, 2000
2.00 to 1.0 for the Fiscal Quarter ending September 30, 2000
3.00 to 1.0 for the Fiscal Quarter ending December 31, 2000
3.00 to 1.0 for the Fiscal Quarter ending March 31, 2001
3.00 to 1.0 for the Fiscal Quarter ending June 30, 2001
3.00 to 1.0 for the Fiscal Quarter ending September 30, 2001
(c) Funded Debt to EBITDA. Borrowers and their Subsidiaries on a
consolidated basis shall maintain a ratio of (i) the greater of (x) Funded Debt
measured as of the last day of each Fiscal Quarter or (y) the average Funded
Debt measured for the thirty day period ending on each Fiscal Quarter to (ii)
EBITDA for the four Fiscal Quarters then ended of not more than the ratio set
forth below; provided, that for the purposes of determining the ratio described
above for the fiscal quarters of the Borrowers ending December 31, 1999, March
31, 2000 and June 30, 2000, EBITDA for the relevant period shall be deemed to
equal EBITDA for such Fiscal Quarter (and, in the case of the latter two such
determinations, each previous Fiscal Quarter commencing after the Closing Date)
multiplied by 4, 2 and 4/3 respectively. For purposes of calculating the ratios
set forth in this subsection (c)(ii) in any Fiscal Quarter, EBITDA shall
include, without duplication, the EBITDA of any Target acquired during such
Fiscal Quarter on a rolling four Fiscal Quarter basis.
G-1
<PAGE>
Fiscal Quarter Ending Ratio
--------------------- -----
2.75 to 1.0 12/31/99
2.00 to 1.0 3/31/00
2.00 to 1.0 6/30/00
2.00 to 1.0 9/30/00
2.00 to 1.0 12/31/00
1.75 to 1.0 3/31/01
1.75 to 1.0 6/30/01
1.75 to 1.0 9/30/01
(d) Borrowers and their Subsidiaries on a consolidated basis shall
not permit EBITDA for the 12-month period then ended (or with respect to the
Fiscal Quarters ending on or before December 31, 1999, March 31, 2000 and June
30, 2000 for the 3-month, 6-month and 9-month periods then ended, respectively)
at the end of the Fiscal Quarter set forth below to be less than the following:
Fiscal Quarter Ending Minimum EBITDA
--------------------- --------------
12/31/99 $ 3,880,000
3/31/00 $10,010,000
6/30/00 $15,380,000
9/30/00 $20,030,000
12/31/00 $21,190,000
3/31/01 $23,030,000
6/30/01 $24,630,000
9/30/01 $26,030,000
Unless otherwise specifically provided herein, any accounting term
used in the Agreement shall have the meaning customarily given such term in
accordance with GAAP, and all financial computations hereunder shall be computed
in accordance with GAAP consistently applied. That certain items or computations
are explicitly modified by the phrase "in accordance with GAAP" shall in no way
be construed to limit the foregoing. If any "Accounting Changes" (as defined
below) occur and such changes result in a change in the calculation of the
financial covenants, standards or terms used in the Agreement or any other Loan
Document, then Borrowers, Agent and Lenders agree to enter into negotiations in
order to amend such provisions of the Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for evaluating
Borrowers' and their Subsidiaries' financial condition shall be the same after
such Accounting Changes as if such Accounting Changes had not been made;
provided, however, that the agreement of Requisite Lenders to any required
amendments of such provisions shall be sufficient to bind all Lenders.
"Accounting Changes" means (i) changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the Financial
Accounting Standards Board of the American Institute of Certified Public
Accountants (or successor thereto or any agency with similar functions), (ii)
changes in accounting principles concurred in by any Borrower's certified public
accountants; (iii) purchase
G-2
<PAGE>
accounting adjustments under A.P.B. 16 or 17 and EITF 88-16, and the application
of the accounting principles set forth in FASB 109, including the establishment
of reserves pursuant thereto and any subsequent reversal (in whole or in part)
of such reserves; and (iv) the reversal of any reserves established as a result
of purchase accounting adjustments. All such adjustments resulting from
expenditures made subsequent to the Closing Date (including capitalization of
costs and expenses or payment of pre-Closing Date liabilities) shall be treated
as expenses in the period the expenditures are made and deducted as part of the
calculation of EBITDA in such period. If Agent, Borrowers and Requisite Lenders
agree upon the required amendments, then after appropriate amendments have been
executed and the underlying Accounting Change with respect thereto has been
implemented, any reference to GAAP contained in the Agreement or in any other
Loan Document shall, only to the extent of such Accounting Change, refer to
GAAP, consistently applied after giving effect to the implementation of such
Accounting Change. If Agent, Borrowers and Requisite Lenders cannot agree upon
the required amendments within thirty (30) days following the date of
implementation of any Accounting Change, then all Financial Statements delivered
and all calculations of financial covenants and other standards and terms in
accordance with the Agreement and the other Loan Documents shall be prepared,
delivered and made without regard to the underlying Accounting Change. For
purposes of Section 8.1, a breach of a Financial Covenant contained in this
Annex G shall be deemed to have occurred as of any date of determination by
Agent or as of the last day of any specified measured period, regardless of when
the Financial Statements reflecting such breach are delivered to Agent.
G-3
<PAGE>
ANNEX H (Section 9.9(a))
to
CREDIT AGREEMENT
WIRE TRANSFER INFORMATION
Banker's Trust
One Banker's Trust Plaza
New York, New York 10006
ABA Number: 021-001-033
Account Name: GECC CAF Depository
Account Number: 50-232-854
Reference: CFN #4145 - Harvard Industries
H-1
<PAGE>
ANNEX I (Section 11.10)
to
CREDIT AGREEMENT
NOTICE ADDRESSES
(A) If to Agent or GE Capital, at
General Electric Capital Corporation
201 High Ridge Road
Stamford, Connecticut 06927-5100
Attention: Account Manager - Harvard Industries
Telecopier No.: (203) 316-7894
Telephone No.: (203) 316-7500
with copies to:
Hahn & Hessen LLP
350 Fifth Avenue
New York, New York 10118
Attention: Steven J. Seif, Esq.
Telecopier No.: (212) 594-7167
Telephone No.: (212) 946-0294
and
General Electric Capital Corporation
201 High Ridge Road
Stamford, Connecticut 06927-5100
Attention: Corporate Counsel - Commercial Finance
Telecopier No.: (203) 316-7889
Telephone No.: (203) 316-7552
(B) If to any Borrower, to Borrower Representative, at
Harvard Industries, Inc.
3 Werner Way, Suite 210
Lebanon, New Jersey 08833
Attention: Chief Financial Officer
Telecopier No.: (908) 236-0071
Telephone No.: (908) 437-4100
I-1
<PAGE>
with copies to:
Sonnenschein Nath & Rosenthal
1221 Avenue of the Americas
New York, New York 10020
Attention: Joseph H. Smolinsky, Esq.
Telecopier: 212-768-6800
Telephone: 212-768-6728
I-2
<PAGE>
ANNEX J (from Annex A - Commitments definition)
to
CREDIT AGREEMENT
Lender(s)
---------
Revolving Loan Commitment
$50,000,000 General Electric Capital Corporation
J-1
<PAGE>
Exhibit 10.2
================================================================================
CREDIT AGREEMENT
Dated as of September 30, 1999
among
HARVARD INDUSTRIES, INC.
DOEHLER-JARVIS, INC.
HARVARD TRANSPORTATION CORPORATION
DOEHLER-JARVIS GREENEVILLE, INC.
POTTSTOWN PRECISION CASTING, INC.
HARVARD INDUSTRIES RISK MANAGEMENT, INC.
DOEHLER-JARVIS TOLEDO, INC.
HARMAN AUTOMOTIVE, INC.
HAYES-ALBION CORPORATION
THE KINGSTON-WARREN CORPORATION
as Borrowers,
THE LENDERS SIGNATORY HERETO
FROM TIME TO TIME,
as Lenders,
and
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and Lender
================================================================================
<PAGE>
================================================================================
TABLE OF CONTENTS
1. AMOUNT AND TERMS OF CREDIT..............................................1
1.1. Credit Facilities................................................1
1.2. Letters of Credit................................................3
1.3. Prepayments......................................................3
1.4. Use of Proceeds..................................................5
1.5. Interest and Applicable Margins..................................5
1.6. INTENTIONALLY OMITTED............................................8
1.7. INTENTIONALLY OMITTED............................................8
1.8. Cash Management Systems..........................................8
1.9. Fees.............................................................9
1.10. Receipt of Payments .............................................9
1.11. Application and Allocation of Payments ..........................9
1.12. Loan Account and Accounting ....................................10
1.13. Indemnity ......................................................10
1.14. Access .........................................................12
1.15. Taxes ..........................................................12
1.16. Capital Adequacy; Increased Costs; Illegality ..................13
2. CONDITIONS PRECEDENT...................................................15
2.1. Conditions to the Initial Loans.................................15
2.2. Further Conditions to Each Loan.................................16
3. REPRESENTATIONS AND WARRANTIES.........................................16
3.1. Corporate Existence; Compliance with Law........................17
3.2. Executive Offices; Collateral Locations; FEIN...................17
3.3. Corporate Power, Authorization, Enforceable Obligations.........17
3.4. Financial Statements and Projections............................18
3.5. Material Adverse Effect.........................................18
3.6. Ownership of Property; Liens....................................19
3.7. Labor Matters...................................................19
3.8. Ventures, Subsidiaries and Affiliates; Outstanding Stock and
Indebtedness ..................................................20
3.9. Government Regulation...........................................20
3.10. Margin Regulations .............................................20
3.11. Taxes ..........................................................21
3.12. ERISA ..........................................................21
3.13. No Litigation ..................................................22
3.14. Brokers ........................................................22
3.15. Intellectual Property ..........................................22
3.16. Full Disclosure ................................................23
3.17. Environmental Matters ..........................................23
3.18. Insurance ......................................................24
3.19. Deposit and Disbursement Accounts ..............................24
3.20. Government Contracts ...........................................24
3.21. Customer and Trade Relations ...................................24
3.22. Agreements and Other Documents .................................24
i
<PAGE>
3.23. Solvency .......................................................25
3.24. Year 2000 Representations. .....................................25
4. FINANCIAL STATEMENTS AND INFORMATION...................................25
4.1. Reports and Notices.............................................25
4.2. Communication with Accountants..................................25
5. AFFIRMATIVE COVENANTS..................................................26
5.1. Maintenance of Existence and Conduct of Business................26
5.2. Payment of Obligations..........................................26
5.3. Books and Records...............................................27
5.4. Insurance; Damage to or Destruction of Collateral...............27
5.5. Compliance with Laws............................................28
5.6. Supplemental Disclosure.........................................28
5.7. Intellectual Property...........................................29
5.8. Environmental Matters...........................................29
5.9. Landlords'Agreements, Mortgagee Agreements and Bailee Letters...30
5.10. INTENTIONALLY OMITTED. .........................................30
5.11. Further Assurances .............................................30
6. NEGATIVE COVENANTS.....................................................30
6.1. Mergers, Subsidiaries, Etc......................................30
6.2. Investments; Loans and Advances.................................33
6.3. Indebtedness....................................................33
6.4. Employee Loans and Affiliate Transactions.......................34
6.5. Capital Structure and Business..................................34
6.6. Guaranteed Indebtedness.........................................35
6.7. Liens...........................................................35
6.8. Sale of Stock and Assets........................................35
6.9. ERISA...........................................................36
6.10. Financial Covenants ............................................36
6.11. Hazardous Materials ............................................36
6.12. Sale-Leasebacks ................................................36
6.13. Cancellation of Indebtedness ...................................36
6.14. Restricted Payments ............................................37
6.15. Change of Corporate Name or Location; Change of Fiscal Year ....37
6.16. No Impairment of Intercompany Transfers ........................37
6.17. No Speculative Transactions ....................................37
7. TERM...................................................................37
7.1. Termination.....................................................37
7.2. Survival of Obligations Upon Termination of Financing
Arrangements ..................................................38
8. EVENTS OF DEFAULT: RIGHTS AND REMEDIES.................................38
8.1. Events of Default...............................................38
8.2. Remedies........................................................40
8.3. Waivers by Credit Parties.......................................40
9. ASSIGNMENT AND PARTICIPATIONS; APPOINTMENT OF AGENT....................41
9.1. Assignment and Participations...................................41
9.2. Appointment of Agent............................................43
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9.3. Agent's Reliance, Etc...........................................43
9.4. GE Capital and Affiliates.......................................44
9.5. Lender Credit Decision..........................................44
9.6. Indemnification.................................................45
9.7. Successor Agent.................................................45
9.8. Setoff and Sharing of Payments..................................46
9.9. Advances; Payments; Non-Funding Lenders; Information;
Actions in Concert. ...........................................46
10. SUCCESSORS AND ASSIGNS.................................................48
10.1. Successors and Assigns ..........................................48
11. MISCELLANEOUS..........................................................49
11.1. Complete Agreement; Modification of Agreement ..................49
11.2. Amendments and Waivers .........................................49
11.3. Fees and Expenses ..............................................51
11.4. No Waiver ......................................................52
11.5. Remedies .......................................................52
11.6. Severability ...................................................52
11.7. Conflict of Terms ..............................................53
11.8. Confidentiality ................................................53
11.9. GOVERNING LAW ..................................................53
11.10. Notices ........................................................54
11.11. Section Titles .................................................55
11.12. Counterparts ...................................................55
11.13. WAIVER OF JURY TRIAL ...........................................55
11.14. Press Releases .................................................55
11.15. Reinstatement ..................................................55
11.16. Advice of Counsel ..............................................56
11.17. No Strict Construction .........................................56
12. CROSS-GUARANTY.........................................................56
12.1. Cross-Guaranty .................................................56
12.2. Waivers by Borrowers ...........................................57
12.3. Benefit of Guaranty ............................................57
12.4. Subordination of Subrogation, Etc. .............................57
12.5. Election of Remedies ...........................................57
12.6. Limitation .....................................................58
12.7. Contribution with Respect to Guaranty Obligations ..............58
12.8. Liability Cumulative ...........................................59
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INDEX OF APPENDICES
Annex A (Recitals) - Definitions
Annex B (Section 1.2) - Letters of Credit
Annex C (Section 1.8) - Cash Management System
Annex D (Section 2.1(a)) - Schedule of Additional Closing Documents
Annex E (Section 4.1(a)) - Financial Statements and
Projections -- Reporting
Annex F (Section 4.1(b)) - Collateral Reports
Annex G (Section 6.10) - Financial Covenants
Annex H (Section 9.9(a)) - Lenders' Wire Transfer Information
Annex I (Section 11.10) - Notice Addresses
Annex J (from Annex A - Commitments definition) Commitments as of Closing Date
Exhibit A - Outstanding Letters of Credit
Exhibit 1.1(a)(i) - Form of Notice of Revolving Credit Advance
Exhibit 1.1(a)(ii) - Form of Revolving Note
Exhibit 1.5(e) - Form of Notice of Conversion/Continuation
Exhibit 9.1(a) - Form of Assignment Agreement
Disclosure Schedule 1.1 - Responsible Individual
Disclosure Schedule 1.4 - Sources and Uses; Funds Flow Memorandum
Disclosure Schedule 3.2 - Executive Offices; FEIN
Disclosure Schedule 3.4(A) - Financial Statements
Disclosure Schedule 3.4(B) - Pro Forma
Disclosure Schedule 3.4(C) - Projections
Disclosure Schedule 3.6 - Real Estate and Leases
Disclosure Schedule 3.7 - Labor Matters
Disclosure Schedule 3.8 - Ventures, Subsidiaries and Affiliates;
Outstanding Stock
Disclosure Schedule 3.11 - Tax Matters
Disclosure Schedule 3.12 - ERISA Plans
Disclosure Schedule 3.13 - Litigation
Disclosure Schedule 3.15 - Intellectual Property
Disclosure Schedule 3.17 - Hazardous Materials
Disclosure Schedule 3.18 - Insurance
Disclosure Schedule 3.19 - Deposit and Disbursement Accounts
Disclosure Schedule 3.20 - Government Contracts
Disclosure Schedule 3.22 - Material Agreements
Disclosure Schedule 5.1 - Trade Names
Disclosure Schedule 6.3 - Indebtedness
Disclosure Schedule 6.4(a) - Transactions with Affiliates
Disclosure Schedule 6.7 - Existing Liens
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Exhibit 99.1
Harvard Industries Completes Sale of Kingston-Warren
Transaction Marks Critical Phase in Successful Corporate Turnaround
LEBANON, N.J., Oct. 4 /PRNewswire/ -- Harvard Industries, Inc. (Nasdaq:
HAVA) today announced the completion of its previously announced sale of
substantially all the assets of its Kingston-Warren subsidiary to Hutchinson
S.A. for the sum of $115 million in cash, subject to certain adjustments.
The sale marks a critical phase of Harvard Industries' comprehensive
reorganization program.
Proceeds of the sale were used to pay off the Company's asset-based bank
loans and senior secured notes. The Company has also put into place a new
two-year $50 million revolving credit facility with General Electric Credit
Corp., a facility that will be used for general corporate purposes and potential
acquisitions.
Based in Farmington Hills, Mich., Kingston-Warren produces single- and
multi-durometer sealing products and systems. Fiscal 1999 revenues were
approximately $119 million.
"The proceeds from the sale of Kingston-Warren were used to pay off all
the Company's long-term debt and revolving credit facility, thereby
de-leveraging the Company's balance sheet and enhancing our capital structure,"
said Roger Pollazzi, Harvard Industries' chairman and CEO. "The remaining
proceeds from the sale, along with a new credit facility, will be available to
fund the Company's ongoing operations and short-term growth."
"The recent restructuring of the Company, including the sale of
unprofitable or non-core units as well as the elimination of the sources of
historical operating losses, has enabled Harvard to generate operating income
(excluding fresh start amortization) this year," said Pollazzi, who joined the
Company during its bankruptcy period as chairman and CEO. "We are now in a
position to use our new capital structure to grow internally while taking
advantage of any opportunistic acquisition opportunities that would further
diversify the Company's customer base."
Given the competitive nature of the automotive industry, customer
diversification is a vital element of short- and long-term corporate planning.
The Company's main business strategy will be to focus on leveraging core
competencies in the design and production of OEM automotive components. This
will enable Harvard to make available a greater range of products and systems
for existing OEM automotive customers while targeting new markets and customers
in the non-automotive industrial sector and the automotive aftermarket.
"Auto makers are finding new ways of building their products and they are
looking at suppliers like Harvard who can support those new initiatives,"
Pollazzi said. "We are going to grow by taking advantage of the opportunities
inherent in those changes."
<PAGE>
Part of the business strategy, he said, is to come together with companies
that offer a strategic fit to augment Harvard's product line.
"The 'right company' would likely involve a company that makes aftermarket
products with high value added," Pollazzi said. "We are prepared to move quickly
on companies that make good sense for us."
Harvard has retained Lehman Brothers, Inc. to assist in identifying
alternative acquisitions.
Having recently completed a successful turnaround, Harvard's new
management team is convinced that future success and profitability depend on the
Company's ability to increase its activity in industrial and other manufacturing
sectors while selectively increasing its share in existin markets.
At the time that Harvard emerged from court protection in November 1998,
the Company's customer mix was 95 percent automotive and 5 percent industrial.
Pollazzi expects to change that mix to 60 percent automotive and 40 percent
industrial over the next two years. The Company intends to produce products for
the heavy truck and construction equipment markets as well as increase product
lines for the automotive market.
Harvard Industries designs, develops and manufactures a broad range of
components for OEM manufacturers, the automotive aftermarket, aerospace and
industrial and construction equipment applications worldwide. The Company
employs approximately 3,000 employees at 10 plants in the United States and
Canada.
Statements herein regarding the Company's future performance, including
the Company's ability to consummate transactions, constitute forward-looking
statements within the meaning of the Securities Act of 1933 and the Securities
Exchange Act of 1934. Such statements are subject to certain risks and
uncertainties that could cause actual results to differ materially from those
projected. With respect to the Company's long-term business strategies,
management has made certain assumptions regarding the Company's performance
which may change or be affected by, among other things, customer demand for the
Company's products, and adverse changes in general, market and industry
conditions. In addition, there can be no assurance that the Company will be able
to successfully identify, negotiate or complete any acquisitions or divestiture
transaction, which the Company may be currently contemplating. Management
believes that forward-looking statements are reasonable; however, undue reliance
should not be placed on such forward-looking statements, which are based on
current expectations.
SOURCE Harvard Industries Inc.
-2-
<PAGE>
Exhibit 99.2
Harvard Industries Announces Share Repurchase
LEBANON, N.J., Oct. 5 /PRNewswire/ -- Harvard Industries, Inc. (Nasdaq:
HAVA) today announced its board of directors has authorized the Company to
repurchase up to $5 million of its common stock.
As a result, the Company purchased 762,000 shares of its common stock
today in a private transaction at an aggregate cost of $4.95 million. The source
of funds was a portion of the net proceeds from the recently completed sale of
the assets of its Kingston-Warren subsidiary.
According to Roger Pollazzi, chairman and chief executive officer, "Our
board of directors has felt for some time that the market price of the Company's
stock did not reflect the intrinsic value of our Company and offers an
exceptional opportunity to increase shareholder value through the repurchase of
our shares."
Pollazzi noted that "based on the general undervaluation of auto supplier
stocks and current market conditions, this transaction should enhance
shareholder value."
As of September 30, 1999, the Company had 10,234,222 shares of common
stock outstanding.
Headquartered in Lebanon, N.J., Harvard Industries designs, develops and
manufactures a broad range of components for OEM manufacturers, the automotive
aftermarket, aerospace and industrial and construction equipment applications
worldwide. The Company employs approximately 3,000 employees at 10 plants in the
United States and Canada.
Statements herein regarding the Company's future performance, including
the Company's ability to consummate transactions, constitute forward-looking
statements within the meaning of the Securities Act of 1933 and the Securities
Exchange Act of 1934. Such statements are subject to certain risks and
uncertainties that could cause actual results to differ materially from those
projected. With respect to the Company's long-term business strategies,
management has made certain assumptions regarding the Company's performance
which may change or be affected by, among other things, customer demand for the
Company's products, and adverse changes in general, market and industry
conditions. In addition, there can be no assurance that the Company will be able
to successfully identify, negotiate or complete any acquisitions or divestiture
transaction, which the Company may be currently contemplating. Management
believes that forward-looking statements are reasonable, however undue reliance
should not be placed on such forward-looking statements, which are based on
current expectations.
SOURCE: Harvard Industries Inc.
