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UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
(Mark One)
(X) QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended July 1, 1994
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OR
( ) TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1984 For the transition period from
_______________________________ to ________________________________________
Commission file number 1-5492-1
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NASHUA CORPORATION
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(Exact name of registrant as specified in its charter)
DELAWARE 02-0170100
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(State of incorporation) (I.R.S. Employer
Identification Number)
44 Franklin Street
P.O. Box 2002
Nashua, New Hampshire 03061-2002
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (603) 880-2323
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Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes ___X___ No ______
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class Outstanding at August 5, 1994
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Common Stock, par value $1.00 6,346,310 shares (excluding,
23,850 shares held in treasury)
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PART II - OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
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(a) Exhibits
4.01 Note Agreement dated as of July 29, 1994
(b) Reports on Form 8-K
No reports on Form 8-K were filed during the quarter for which
this report is filed.
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
NASHUA CORPORATION
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(Registrant)
Date: September 30, 1994 By: /s/ W. Luke
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W. Luke
Vice President-Finance
(principal financial and duly
authorized officer)
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Exhibit 4.01
CREDIT AGREEMENT, dated as of July 29, 1994, among NASHUA CORPORATION,
a Delaware corporation (the "Company"), the several banks parties to this
Agreement (collectively, the "Banks"; individually, a "Bank") and CHEMICAL
BANK, a New York banking corporation, as agent for the Banks hereunder (in
such capacity, the "Agent").
W I T N E S S E T H :
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WHEREAS, the Company has requested the Banks to make loans to it
in an amount up to $40,000,000 at any one time outstanding as more
particularly described herein;
WHEREAS, the Banks are willing to make such loans on the terms
and conditions contained herein;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, terms defined in the
Preamble to this Agreement have the meanings therein indicated, and the
following terms have the following meanings:
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is
controlled by, or is under common control with, such Person. For
purposes of this definition, a Person shall be deemed to be
"controlled by" a Person if such Person possesses, directly or
indirectly, power either to (a) vote 10% or more of the securities
having ordinary voting power for the election of directors of such
Person or (b) direct or cause the direction of the management and
policies of such Person whether by contract or otherwise.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"Applicable Margin": the Applicable Margin shall be 0% for all
Reference Rate Loans and .625% for all Eurodollar Loans; provided, on
any day that the aggregate principal amount of the Committed Rate
Loans outstanding shall be in excess of 50% of the aggregate
Commitments, the Applicable Margin for all Reference Rate Loans shall
be .125% and the Applicable Margin for all Eurodollar Loans shall be .750%.
"Asset Disposition": any transaction consisting of the sale,
lease, transfer or other disposition of assets (other than (i)
transactions between Subsidiaries or between the Company and a
Subsidiary, (ii) the sale of inventory in the ordinary course of
business and (iii) repurchases by the Company of its own common stock)
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having a book value at the time of such transaction equal to or
greater than $1,000,000. Any group of related sales, leases,
transfers or other dispositions shall be treated as one transaction
for purposes of determining whether the same is an Asset Disposition.
"Benefitted Bank": as defined in subsection 9.7.
"Bid Loan": each Bid Loan made pursuant to subsection 2.5; the
aggregate amount advanced by a Bank pursuant to subsection 2.5 on each
Bid Loan Date shall constitute one or more Bid Loans, as specified by
such Bank pursuant to subsection 2.5(b)(vii).
"Bid Loan Assignees": as defined in subsection 9.6(c).
"Bid Loan Assignment": a Bid Loan Assignment, substantially in
the form of Exhibit H-1.
"Bid Loan Confirmation": each confirmation by the Company of its
acceptance of Bid Loan Offers, which Bid Loan Confirmation shall be
substantially in the form of Exhibit G and shall be delivered to the
Agent in writing, by telex or by facsimile transmission.
"Bid Loan Date": in respect of a Bid Loan, the day on which a
Bank makes such Bid Loan pursuant to subsection 2.5.
"Bid Loan Offer": each offer by a Bank to make Bid Loans
pursuant to a Bid Loan Request, which Bid Loan Offer shall contain the
information specified in Exhibit F and shall be delivered to the Agent
in writing, by telex or by facsimile transmission, or by telephone,
immediately confirmed by telex or facsimile transmission.
"Bid Loan Request": each request by the Company for Banks to
submit bids to make Bid Loans, which shall contain the information in
respect of such requested Bid Loans specified in Exhibit E and shall
be delivered to the Agent in writing, by telex or facsimile
transmission, or by telephone, immediately confirmed by telex or
facsimile transmission.
"Bid Notes": the collective reference to the Grid Bid Loan Notes
and the Individual Bid Loan Notes; individually, a "Bid Note".
"Borrowing Date": in respect of any Committed Rate Loan, the
date such Committed Rate Loan is made.
"Business Day": a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required
by law to close; provided, however, that the term "Business Day" shall
also exclude when used in connection with a Eurodollar Loan, any day
on which commercial banks are not open for dealing in Dollar deposits
in the London interbank market.
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"Cash Equivalents": (i) securities issued or directly and fully
guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than twelve
months from the date of acquisition, (ii) time deposits and
certificates of deposit having maturities of not more than twelve
months from the date of acquisition of any Bank or of any domestic
commercial bank having capital and surplus in excess of $500,000,000
which has, or the holding company of which has, a commercial paper
rating meeting the requirements specified in clause (iv) below, (iii)
repurchase obligations with a term of not more than ten days for
underlying securities of the types described in clauses (i) and (ii)
entered into with any bank meeting the qualifications specified in
clause (ii) above, (iv) commercial paper rated at least A-2 or the
equivalent thereof by Standard & Poor's Corporation or P-2 or the
equivalent thereof by Moody's Investors Service, Inc. and in either
case maturing within six months from the date of acquisition, (v)
auction rate preferred stock rated at least A3 or the equivalent
thereof by Standard & Poor's Corporation or A- or the equivalent
thereof by Moody's Investors Service, Inc., and (vi) floating rate tax
exempt bonds rated at least MIG1 or the equivalent thereof by Standard
& Poor's Corporation or SP1+ or the equivalent thereof by Moody's
Investors Service, Inc.
"Chemical": Chemical Bank.
"Closing Date": the date on which the conditions specified in
subsection 4.1 are satisfied in full.
"Code": the Internal Revenue Code of 1986, as amended from time
to time.
"Commitment": as to any Bank on the Closing Date, the amount set
forth opposite such Bank's name on Schedule 1.1 hereto under the
caption "Commitment Amount", as such amount may from time to time be
reduced in accordance with this Agreement; collectively, as to all the
Banks, the "Commitments".
"Commitment Assignment": as defined is subsection 9.6(d).
"Commitment Percentage": as to any Bank, the percentage of the
aggregate Commitments from time to time constituted by such Bank's
Commitment; collectively, as to all the Banks, the "Commitment
Percentages".
"Commitment Period": the period from and including the Closing
Date to but not including the Termination Date.
"Committed Rate Loans": Loans made pursuant to subsection 2.1.
"Committed Rate Note": as defined in subsection 2.2;
collectively, the "Committed Rate Notes".
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"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Company within
the meaning of Section 4001 of ERISA.
"Consolidated Current Assets": at any date, all amounts which
would, in conformity with GAAP, be included under current assets on a
consolidated balance sheet of the Company and its Subsidiaries at such
date.
"Consolidated Current Liabilities": at a particular date, all
amounts which would, in conformity with GAAP, be included under
current liabilities on a consolidated balance sheet of the Company and
its Subsidiaries as at such date.
"Consolidated Intangibles": at a particular date, all assets of
the Company and its Subsidiaries, determined on a consolidated basis
at such date, that would be classified as intangible assets in
accordance with GAAP, but in any event including, without limitation,
unamortized debt discount and expense, unamortized organization and
reorganization expense, patents, trade or service marks, franchises,
trade names, goodwill and the amount of any write-up in the book value
of any assets resulting from any revaluation thereof after April 1,
1994.
"Consolidated Interest Coverage Ratio": for any period, the
ratio of (a) the sum of (i) Consolidated Pre-tax Income for such
period and (ii) Consolidated Interest Expense for such period to (b)
Consolidated Interest Expense for such period.
"Consolidated Interest Expense": for any period, the amount
which, in conformity with GAAP, would be set forth opposite the
caption "interest expense" or any like caption on the consolidated
income statement of the Company and its Subsidiaries for such period.
"Consolidated Net Income": for any period, the consolidated net
income of the Company and its Subsidiaries for such period determined
in accordance with GAAP.
"Consolidated Net Worth": at a particular date, all amounts
which would be included under shareholders' equity on a consolidated
balance sheet of the Company and its Subsidiaries determined in
accordance with GAAP as at such date (other than any amounts (whether
positive or negative) included therein in respect of cumulative effect
of foreign currency translation).
"Consolidated Pre-tax Income": for any period which such amount
is being determined, the earnings from operations before taxes based
on income for such period as determined on a consolidated basis for
the Company and its consolidated Subsidiaries in accordance with GAAP.
"Consolidated Tangible Net Worth": at a particular date, the
excess, if any, of Consolidated Net Worth over Consolidated
Intangibles as at such date.
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"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of
its property is bound.
"Default": any of the events specified in Section 7, whether or
not any requirement for the giving of notice or the lapse of time, or
both, or any other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United
States of America.
"Eligible Assignee": any of (a) a commercial bank organized
under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of
$500,000,000; (b) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof or
the District of Columbia, and having a net worth of at least
$100,000,000, calculated in accordance with generally accepted
accounting principles; (c) a commercial bank organized under the laws
of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having total assets in excess of
$1,000,000,000, provided that such bank is acting through a branch or
agency located in the country in which it is organized or another
country which is also a member of the OECD; and (d) the central bank
of any country which is a member of the OECD.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates
(expressed as a decimal fraction) of reserve requirements, if any, in
effect on such day (including, without limitation, basic,
supplemental, marginal and emergency reserves under any regulations of
the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto),
dealing with reserve requirements prescribed for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D
of such Board) maintained by a member bank of such System.
"Eurodollar Base Rate": with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum at
which Chemical is offered Dollar deposits two Business Days prior to
the beginning of such Interest Period in the interbank eurodollar
market where the eurodollar and foreign currency and exchange
operations are customarily conducted at or about 10:00 A.M., New York
City time, for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to
the amount of the Eurodollar Loan of Chemical to be outstanding during
such Interest Period.
"Eurodollar Loans": Committed Rate Loans that bear interest for
the Interest Period applicable thereto at an interest rate based on
the Eurodollar Rate.
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"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined
for such Interest Period in accordance with the following formula
(rounded upwards to the nearest whole multiple of 1/100th of one
percent):
Eurodollar Base Rate
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1.00 - Eurodollar Reserve Requirement
"Event of Default": any of the events specified in Section 7;
provided, however, that any requirement for the giving of notice or
the lapse of time, or both, or any other condition, has been
satisfied.
"Extension Request": each request by the Company made pursuant
to subsection 2.20 for the Banks to extend this Agreement, which shall
contain the information in respect of such extension specified in
Exhibit L and shall be delivered to the Agent in writing.
"Financial Indebtedness": shall mean (a) any loan, advance of
funds, overdraft or other borrowing, (b) any obligation under leases,
conditional sale or other title retention agreements that, in
accordance with GAAP, are required to be capitalized, (c) any recourse
obligation of the seller protecting the buyer against credit risk in
connection with the sale of accounts receivable, leases, rental
agreements or other chattel paper, (d) any reimbursement obligation
not satisfied substantially contemporaneously with a drawing under any
letter of credit, (e) any other financial obligation evidenced by a
promissory note or similar instrument, (f) any Guaranty (excluding any
Guaranty of performance) of any of the foregoing or (g) in the case of
any preferred stock requiring any mandatory redemption or sinking fund
payments prior to the Termination Date, those shares of which that are
subject to such requirement; in determining whether any of the
foregoing shall constitute Financial Indebtedness it shall be of no
consequence that such item does not appear on the liability side of a
balance sheet of such Person but instead appears on the asset side of
a balance sheet of such Person as a part of net assets of discontinued
businesses or of businesses held for sale.
"Financing Lease": any obligation of a type described in clause
(b) of the definition of Financial Indebtedness.
"Funded Debt": any obligations of a type described in clauses
(a), (b), (d) or (e) of the definition of Financial Indebtedness.
"GAAP": generally accepted accounting principles in effect in
the United States of America on the date hereof.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
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"Grid Bid Loan Note": as defined in subsection 2.5(b)(vi);
collectively, the "Grid Bid Loan Notes".
"Guaranty": as to any Person (the "Guarantying Person"), any
guaranty of indebtedness or other obligation of any other Person or
any assurance with respect to the financial condition of any other
Person (including, without limitation, any purchase or repurchase
agreement, any indemnity or any keep-well, take-or-pay, through-put or
other arrangement having the effect of assuring or holding harmless
any third Person against loss with respect to any obligation of such
other Person), but excluding (a) any agreement or arrangement under
which there is no obligation of the Guarantying Person with respect to
the indebtedness or other obligations of any other Person, except that
the Guarantying Person waives its right to receive or agrees not to
accept dividends, returns on capital or other payments from such other
Person, or concurs in such other Person's agreement not to pay such
amounts, in order to maintain the financial condition of such other
Person to induce the extension of credit to such other Person and (b)
endorsements of negotiable instruments for deposit or collection in
the ordinary course of business.
"Individual Bid Loan Note": as defined in subsection 2.5(b)(vi);
collectively, the "Individual Bid Loan Notes".
"Insolvency": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of such term
as used in Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Insurance and Other Debt": the indebtedness of the Company to
holders of the Company's 9.17% Senior Notes due 2001.
"Interest Payment Date": (a) as to any Reference Rate Loan, the
last day of each March, July, September and December to occur while
such Loan is outstanding, (b) as to any Eurodollar Loan in respect of
which the Company has selected an Interest Period of one, two or three
months, the last day of such Interest Period, and (c) as to any
Eurodollar Loan in respect of which the Company has selected an
Interest Period of six months, the date which is three (3) months from
the first day of such Interest Period and the last day of such
Interest Period.
"Interest Period": (a) with respect to any Eurodollar Loan,
(i) the period commencing on the Borrowing Date or
conversion date with respect to such Eurodollar Loan and ending
one, two, three or six months thereafter, as selected by the
Company in its notice of borrowing or notice of conversion as
provided in subsections 2.3 and 2.4, respectively; and
(ii) thereafter, each period commencing on the last day of
the next preceding Interest Period applicable to such Eurodollar
Loan ending one, two, three or six months thereafter, as selected
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by the Company by irrevocable notice to the Agent not less than
three Business Days prior to the last day of the then current
Interest Period with respect thereto;
(b) with respect to any Bid Loan, the period commencing on the Bid
Loan Date with respect to such Bid Loan and ending on the date not
less than 14 nor more than 180 days thereafter, as specified by the
Company in such Bid Loan Request;
provided that, all of the foregoing provisions relating to Interest
Periods are subject to the following:
(1) if any Interest Period pertaining to a Eurodollar Loan
would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business
Day unless the result of such extension would be to carry such
Interest Period into another calendar month in which event such
Interest Period shall end on the immediately preceding Business
Day;
(2) any Interest Period pertaining to a Eurodollar Loan
that begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month;
(3) the Company shall select Interest Periods so as not to
require a payment or prepayment of any Eurodollar Loan during an
Interest Period for such Loan;
(4) if any Interest Period pertaining to a Bid Loan would
otherwise end on a day which is not a Business Day, such Interest
Period shall be extended to the next succeeding Business Day; and
(5) no Interest Period in respect of a Loan shall extend
beyond the Termination Date.
"Lien": shall mean (a) any judgment lien or execution,
attachment, levy, distraint or similar legal process and (b) any
mortgage, pledge, hypothecation, assignment, lien, charge, encumbrance
or other security interest of any kind or nature whatsoever
(including, without limitation, the interest of the lessor under any
capital lease and the interest of the seller under any conditional
sale or other title retention agreement), which secures or purports to
secure any Financial Indebtedness.
"Loans": the collective reference to the Committed Rate Loans
and the Bid Loans.
"Majority Banks": Banks whose Commitment Percentages aggregate
at least 50.1%.
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"Multiemployer Plan": a Plan which is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"Note Purchase Agreements": any Note Agreement related to the
Company's 9.17% Senior Notes due March 20, 2001.
"Notes": the collective reference to the Committed Rate Notes
and the Bid Notes.
"Obligations": all indebtedness, obligations and liabilities of
the Company to the Agent and/or any of the Banks incurred under or
arising out of or in connection with this Agreement and the Notes,
whether for principal, interest, fees, expenses or otherwise.
"Objecting Banks": as defined in subsection 2.20(a).
"Participants": as defined in subsection 9.6(b).
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Person": an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture, Governmental Authority or other entity of whatever nature.
"Plan": at any particular time, any employee benefit plan which
is covered by ERISA and in respect of which the Company or a Commonly
Controlled Entity is (or, if such plan were terminated at such time,
would under Section 4069 of ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
"Prior Credit Agreement": shall mean the Credit Agreement, dated
as of March 27, 1992, as amended, among the Company, the banks parties
thereto and Chemical, as Agent for such Banks.
"Reference Rate": at any particular date, the higher of (a) the
rate of interest publicly announced by Chemical in New York, New York
from time to time as its reference rate and (b) 1/2% above the rate
set forth for such date opposite the caption "Federal Funds
(Effective)" in the weekly statistical release designated as "H.15
(519)", or any successor publication, published by the Board of
Governors of the Federal Reserve System. The reference rate is not
intended to be the lowest rate of interest charged by Chemical in
connection with extensions of credit to debtors.
"Reference Rate Loans": Committed Rate Loans that bear interest
at an interest rate based upon the Reference Rate.
"Register": as defined in subsection 9.6(e).
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"Reorganization": with respect to any Multiemployer Plan, the
condition that such Plan is in reorganization within the meaning of
such term as used in Section 4241 of ERISA.
"Reportable Event": any of the events set forth in Section
4043(b) of ERISA, other than those events as to which the thirty-day
notice period is waived under subsections .13, .14, .16, .18, .19 or
.20 of PBGC Reg. Section 2615.
"Required Banks": Banks whose Commitment Percentages aggregate
at least 60%.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or governing
documents of such Person, and each law, treaty, rule or regulation or
determination of an arbitrator or Governmental Authority, applicable
to or binding upon such Person or any of its property.
"Responsible Officer": as to the Company, the Chairman, the
President, the Chief Financial Officer, the Treasurer or the
Controller.
"Single Employer Plan": any Plan which is an "employee pension
benefit plan" under ERISA and is covered by Title IV of ERISA, but
which is not a Multiemployer Plan.
"Subsidiary": as to any Person, (i) a corporation, association,
trust or other business entity of which shares of stock having
ordinary voting power (other than stock having such power only by
reason of the happening of a contingency) to elect a majority of the
board of directors or other managers of such corporation are at the
time owned, or the management of which is otherwise controlled,
directly or indirectly through one or more intermediaries, or both, by
such Person and (ii) any partnership of which such Person or any
Subsidiary is a general partner or any partnership more than 50% of
the equity interests of which are owned, directly or indirectly, by
such Person or by one or more other Subsidiaries, or by such Person
and one or more other Subsidiaries. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement
shall refer to a Subsidiary or Subsidiaries of the Company.
"Termination Date": July 30, 1997 or such later date as shall be
determined pursuant to subsection 2.20 with respect to non-Objecting
Banks or such other date on which the Commitments shall terminate in
accordance with the provisions of this Agreement.
"Total Capitalization": for any period, the sum of Consolidated
Net Worth and Funded Debt.
"Tranche": Eurodollar Loans the Interest Periods with respect to
all of which begin on the same date and end on the same later date
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(whether or not such Loans shall have originally been made on the same
day). Tranches may be identified as Eurodollar Tranches.
"Transferees": as defined in subsection 9.6(g).
"Transfer Effective Date": as defined in each Commitment
Assignment and each Bid Loan Assignment.
"Type": as to any Committed Rate Loan, its nature as a Reference
Rate Loan or Eurodollar Loan, as the case may be.
1.2 Other Definitional Provisions. (a) As used herein,
accounting terms not defined in subsection 1.1 and accounting terms partly
defined in subsection 1.1, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(b) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and section,
subsection, schedule and exhibit references are to this Agreement unless
otherwise specified. The meaning of defined terms shall be equally
applicable to the singular and plural forms of the defined terms.
SECTION 2. THE COMMITTED RATE LOANS; THE BID
LOANS; AMOUNT AND TERMS
2.1 The Committed Rate Loans. (a) During the Commitment Period,
subject to the terms and conditions hereof, each Bank severally agrees to
make loans (individually, a "Committed Rate Loan"; collectively, the
"Committed Rate Loans") to the Company from time to time in an aggregate
principal amount at any one time outstanding not to exceed such Bank's
Commitment, provided that no Committed Rate Loan shall be made hereunder if
after giving effect thereto the aggregate principal amount of all
outstanding Loans would exceed the aggregate amount of the Commitments then
in effect. During the Commitment Period, the Company may use the
Commitments by borrowing, repaying and reborrowing, all in accordance with
the terms and conditions hereof.
(b) The Committed Rate Loans may be either (i) Eurodollar Loans,
(ii) Reference Rate Loans, or (iii) a combination thereof, as determined by
the Company and notified to the Agent in accordance with subsections 2.3
and 2.4, provided that no Committed Rate Loan shall be made as a Eurodollar
Loan after the date that is one month prior to the Termination Date.
2.2 Committed Rate Notes. Committed Rate Loans made by each
Bank shall be evidenced by a promissory note of the Company, substantially
in the form of Exhibit A with appropriate insertions (a "Committed Rate
Note"), payable to the order of such Bank and representing the obligation
of the Company to pay the lesser of (a) the amount of the initial
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Commitment of such Bank and (b) the aggregate unpaid principal amount of
all Committed Rate Loans made by such Bank. Each Bank is hereby authorized
to record the date, Type and amount of each Committed Rate Loan made by
such Bank, the maturity date thereof, the date and amount of each payment
or prepayment of principal thereof and the interest rate with respect
thereto on the schedule annexed to and constituting a part of its Committed
Rate Note, and any such recordation shall constitute prima facie evidence
of the accuracy of the information so recorded; provided, however, that the
failure to make any such recordation shall not affect the obligations of
the Company hereunder or under such Committed Rate Note. Each Committed
Rate Note shall (i) be dated the Closing Date, (ii) be stated to mature on
the Termination Date, and (iii) bear interest for the period from the
Borrowing Date thereof until payment in full on the unpaid principal amount
thereof from time to time outstanding at the applicable interest rate per
annum determined as provided in subsection 2.10.
2.3 Procedure for Committed Rate Loan Borrowing. Subject to the
terms and conditions of this Agreement, the Company may borrow Committed
Rate Loans during the Commitment Period on any Business Day provided,
however, that the Company shall give the Agent irrevocable notice thereof
(which notice must be received by the Agent (i) prior to 12:00 Noon, New
York City time, three Business Days prior to the requested Borrowing Date,
in the case of Eurodollar Loans, and (ii) prior to 11:00 A.M., New York
City time, on the requested Borrowing Date, in the case of Reference Rate
Loans). Each such notice shall be given in writing, by telex or by
facsimile transmission substantially in the form of Exhibit D (with
appropriate insertions) or shall be given by telephone (specifying the
information set forth in Exhibit D) promptly confirmed by notice given in
writing, by telex or by facsimile transmission substantially in the form of
Exhibit D (with appropriate insertions). On the day of receipt of any such
notice from the Company, the Agent shall promptly notify each Bank thereof.
Subject to subsection 2.4 below, each Bank will make the amount of its
share of each borrowing available to the Agent for the account of the
Company at the office of the Agent set forth in subsection 9.2 at 11:00
A.M. (or 3:00 P.M., in the case of Reference Rate Loans), New York City
time, on the Borrowing Date requested by the Company in funds immediately
available to the Agent as the Agent may direct. The proceeds of all such
Committed Rate Loans will then be made available to the Company by the
Agent at the office of the Agent specified in subsection 9.2 by crediting
the account of the Company on the books of such office of the Agent with
the aggregate of the amount made available to the Agent by the Banks and in
like funds as received by the Agent.
2.4 Conversion and Continuation Options. (a) The Company may
elect from time to time to convert Eurodollar Loans to Reference Rate Loans
by giving the Agent prior irrevocable notice prior to 11:00 A.M. on any
Business Day of such election, provided that any such conversion of
Eurodollar Loans may only be made on the last day of an Interest Period
with respect thereto. The Company may elect from time to time to convert
Reference Rate Loans to Eurodollar Loans by giving the Agent at least three
Business Days' prior irrevocable notice of such election. Any such notice
of conversion to Eurodollar Loans shall specify the length of the initial
Interest Period or Interest Periods therefor. Upon receipt of any such
notice the Agent shall promptly notify each Bank thereof. All or any part
of outstanding Eurodollar Loans and Reference Rate Loans may be converted
<PAGE> 13
13
as provided herein, provided that (i) no Reference Rate Loan may be
converted into a Eurodollar Loan when any Event of Default has occurred and
is continuing and the Agent or the Required Banks have determined that such
a conversion is not appropriate and (ii) no Reference Rate Loan may be
converted into a Eurodollar Loan after the date that is one month prior to
the Termination Date.
(b) Any Eurodollar Loans may be continued as such upon the
expiration of the then current Interest Period with respect thereto by the
Company giving notice to the Agent, in accordance with the applicable
provisions of the term "Interest Period" set forth in subsection 1.1, of
the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan may be continued as such (i) when any
Event of Default has occurred and is continuing and the Agent or the
Required Banks have determined that such a continuation is not appropriate,
(ii) if, after giving effect thereto, subsection 2.9 would be contravened
or (iii) after the date that is one month prior to the Termination Date;
and provided, further, that if the Company shall fail to give any required
notice as described above in this paragraph or if such continuation is not
permitted pursuant to the preceding proviso such Loans shall be
automatically converted to Reference Rate Loans on the last day of such
then expiring Interest Period.
2.5 The Bid Loans. (a) The Company may borrow Bid Loans from
time to time on any Business Day during the period from the Closing Date
until the date occurring 14 days prior to the Termination Date in the
manner set forth in this subsection 2.5 and in amounts such that the
aggregate principal amount of all Loans at any time outstanding shall not
exceed the aggregate amount of the Commitments at such time, provided,
however, that the aggregate principal amount of the outstanding Bid Loans
of a Bank may (but shall not be required to) exceed its Commitment.
(b)(i) The Company shall request Bid Loans by giving telephone
notice (to be immediately confirmed by delivering a Bid Loan Request) to
the Agent, not later than 10:30 A.M. (New York City time) one Business Day
prior to the proposed Bid Loan Date. Each Bid Loan Request may solicit
bids for Bid Loans in an aggregate principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and for not more than
three alternative Interest Periods for such Bid Loans. The Interest Period
for each Bid Loan shall end not less than 14 days nor more than 180 days
after the Bid Loan Date therefor (and in any event subject to the proviso
to the definition of "Interest Period" in subsection 1.1). The Agent shall
promptly notify each Bank by telex or facsimile transmission of the
contents of each Bid Loan Request received by it.
(ii) Upon receipt of notice from the Agent of the contents of a
Bid Loan Request, any Bank that elects, in its sole discretion, to do so,
shall irrevocably offer to make one or more Bid Loans at a rate or rates of
interest for each such Bid Loan determined by such Bank in its sole
discretion. Any such irrevocable offer shall be made by giving telephone
notice (to be immediately confirmed by delivering a Bid Loan Offer) to the
Agent before 9:30 A.M. (New York City time) on the proposed Bid Loan Date,
setting forth the maximum amount of Bid Loans for each Interest Period, and
the aggregate maximum amount for all Interest Periods, which such Bank
would be willing to make (which amount may, subject to subsection 2.5(a),
<PAGE> 14
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exceed such Bank's Commitment) and the rate or rates of interest at which
such Bank is willing to make each such Bid Loan; the Agent shall advise the
Company before 10:00 A.M. (New York City time) on the proposed Bid Loan
Date of the contents of each such Bid Loan Offer received by it. If the
Agent in its capacity as a Bank shall, in its sole discretion, elect to
make any such offer, it shall advise the Company of the contents of its Bid
Loan Offer before 9:15 A.M. (New York City time) on the proposed Bid Loan
Date.
(iii) The Company shall before 10:25 A.M. (New York City time) on
the proposed Bid Loan Date either, in its absolute discretion:
(A) cancel such Bid Loan Request by giving the Agent telephone
notice to that effect, or
(B) accept one or more of the offers made by any Bank or Banks
pursuant to clause (ii) above by giving telephone notice to the Agent
(to be immediately confirmed by delivery to the Agent of a Bid Loan
Confirmation) of the amount of Bid Loans for each relevant Interest
Period to be made by each Bank (which amount shall be equal to or less
than the maximum amount for such Interest Period specified in the Bid
Loan Offer of such Bank, and for all Interest Periods included in such
Bid Loan Offer shall be equal to or less than the aggregate maximum
amount specified in such Bid Loan Offer for all such Interest Periods)
and reject any remaining offers made by Banks pursuant to clause (ii)
above; provided, however, that (x) the Company may not accept offers
for Bid Loans for any Interest Period in an aggregate principal amount
in excess of the maximum principal amount requested for such Interest
Period in the related Bid Loan Request, (y) if the Company accepts any
of such offers, it must accept offers strictly based upon pricing for
such relevant Interest Period and no other criteria whatsoever and (z)
if two or more Banks submit offers for any Interest Period at
identical pricing and the Company accepts any of such offers but does
not wish to borrow the total amount offered by such Banks with such
identical pricing, the Company shall accept offers from all of such
Banks in amounts allocated among them pro rata according to the
amounts offered by such Banks (or as nearly pro rata as shall be
practicable, after giving effect to the requirement that Bid Loans
made by a Bank on a Bid Loan Date for each relevant Interest Period
shall be in a principal amount of $5,000,000 or an integral multiple
of $1,000,000 in excess thereof, it being agreed that to the extent
that it is impossible to make allocations in accordance with the
provisions of this clause (B) such allocations shall be made in
accordance with the instructions of the Company).
(iv) If the Company notifies the Agent that a Bid Loan Request
is cancelled pursuant to clause (iii)(A) above, the Agent shall give prompt
telephone notice thereof to the Banks, and the Bid Loans requested thereby
shall not be made.
(v) If the Company accepts pursuant to clause (iii)(B) above one
or more of the offers made by any Bank or Banks, the Agent shall notify
each Bank which has made such an offer before 10:55 A.M. (New York City
time) on the Bid Loan Date of the aggregate amount of such Bid Loans to be
<PAGE> 15
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made on such Bid Loan Date for each Interest Period and of the acceptance
or rejection of any offers to make such Bid Loans made by such Bank. Each
Bank which is to make a Bid Loan shall, before 12:00 Noon (New York City
time) on the Bid Loan Date specified in the Bid Loan Request applicable
thereto, make available to the Agent at its office set forth in subsection
9.2 the amount of Bid Loans to be made by such Bank, in immediately
available funds. The Agent will make such funds available to the Company
as soon as practicable on such date at the Agent's aforesaid address. As
soon as practicable after each Bid Loan Date, the Agent shall notify each
Bank of the aggregate amount of Bid Loans advanced on such Bid Loan Date,
the respective Interest Periods therefor and the range of bids received on
such date.
(vi) Bid Loans made by each Bank shall be evidenced by a
promissory note of the Company substantially in the form of Exhibit B with
appropriate insertions (a "Grid Bid Loan Note") or (pursuant to the terms
of subsection 2.5(b)(vii)), by a promissory note of the Company in the form
of Exhibit C with appropriate insertions (an "Individual Bid Loan Note").
Each Grid Bid Loan Note shall represent the obligation of the Company to
pay the lesser of (i) the Commitments, and (ii) the aggregate unpaid
principal amount of all Bid Loans made by such Bank (other than those
evidenced by an Individual Bid Loan Note). Each Bank is hereby authorized
to record the date and amount of each Bid Loan made by such Bank, the
maturity date thereof, the date of payment thereof and the interest rate
with respect thereto on the schedule annexed to and constituting a part of
its Grid Bid Loan Note, and any such recordation shall constitute prima
facie evidence of the accuracy of the information so recorded; provided,
however, that the failure to make any such recordation shall not affect the
obligations of the Company hereunder or under such Grid Bid Loan Note.
Each Grid Bid Loan Note shall be dated the Closing Date.
(vii) Amounts advanced by a Bank on a Bid Loan Date which have
the same Interest Period and interest rate shall be deemed to constitute
one Bid Loan so long as such amounts remain evidenced by the Grid Bid Loan
Note of such Bank. Any such Bank that wishes such amounts to constitute
more than one Bid Loan and to have each such Bid Loan evidenced by an
Individual Bid Loan Note shall notify the Agent and the Company by telex or
facsimile transmission of the respective principal amounts of the Bid Loans
(which principal amounts shall not be less than $5,000,000 for any of such
Bid Loans) to be evidenced by each such Individual Bid Loan Note. Not
later than three Business Days after receipt of such notice, the Company
shall deliver to such Bank an Individual Bid Loan Note payable to the order
of such Bank in the principal amount of each such Bid Loan and otherwise
conforming to the requirements of this Agreement. Upon receipt of such
Individual Bid Loan Note, such Bank shall endorse on the Schedule attached
to its Grid Bid Loan Note the transfer of such Bid Loan from such Grid Bid
Loan Note to such Individual Bid Loan Note.
(c) Within the limits and on the conditions set forth in this
subsection 2.5, the Company may from time to time borrow under this
subsection 2.5, repay pursuant to paragraph (d) below, and reborrow under
this subsection 2.5.
<PAGE> 16
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(d) The Company shall repay to the Agent for the account of each
Bank which has made a Bid Loan (or the Bid Loan Assignee in respect
thereof, as the case may be) on the last day of the Interest Period for
each Bid Loan (such Interest Period being that specified by the Company for
repayment of such Bid Loan in the related Bid Loan Request) the then unpaid
principal amount of such Bid Loan. The Company shall not have the right to
prepay any principal amount of any Bid Loan.
(e) The Company shall pay interest on the unpaid principal
amount of each Bid Loan from the applicable Bid Loan Date to the stated
maturity date thereof, at the rate of interest determined pursuant to
paragraph (b) above (calculated on the basis of a 360 day year for actual
days elapsed), payable on the interest payment date or dates specified by
the Company for such Bid Loan in the related Bid Loan Request as provided
in the Bid Note evidencing such Bid Loan. If all or a portion of the
principal amount of any Bid Loan shall not be paid when due (whether at the
stated maturity, by acceleration or otherwise), such overdue principal
amount shall, without limiting any rights of any Bank under this Agreement,
bear interest from the date on which such payment was due at a rate per
annum which is 2% above the Reference Rate until paid in full (as well
after as before judgment).
2.6 Fees. (a) The Company agrees to pay to the Agent, for the
ratable accounts of the Banks based upon their respective Commitment
Percentages, a fee equal to 1/8 of 1% of the aggregate Commitments payable
on the Closing Date.
(b) The Company agrees to pay to the Agent for the ratable
accounts of the Banks based upon their respective Commitment Percentages
commitment fees from and including the date hereof to but excluding the
Termination Date, payable quarterly in arrears on the last day of each
March, June, September and December and on the Termination Date (or such
earlier date on which the Commitments shall terminate as provided herein),
commencing on the first of such dates to occur after the date hereof, (i)
computed at the rate of 3/8 of 1% per annum on each Bank's Commitment
Percentage of the average daily unused amount of the Commitments less the
daily average principal amount of Bid Loans outstanding during the period
for which payment is being made, and (ii) computed at the rate of 1/4 of 1%
per annum on each Bank's Commitment Percentage of the daily average
principal amount of the Bid Loans outstanding during the period for which
payment is being made.
(c) The Company shall pay to the Agent the fees in the amounts
and on the dates specified in the letter agreement between them dated July
8, 1994.
2.7 Commitment Reductions. The Company shall have the right to
terminate or reduce the unused portion of the Commitments at any time or
from time to time on or prior to the Termination Date upon not less than
five Business Days' prior notice to the Agent (which shall notify the Banks
thereof as soon as practicable) of each such termination or reduction,
which notice shall specify the effective date thereof and the amount of any
such reduction (which shall be in a minimum amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof) and shall be irrevocable and
effective only upon receipt by the Agent, provided that no such reduction
or termination shall be permitted if after giving effect thereto, and to
any prepayments of the Committed Rate Loans made on the effective date
<PAGE> 17
17
thereof, the then outstanding aggregate unpaid principal amount of all
Loans would exceed the amount of the Commitments then in effect.
(b) The Commitments once terminated or reduced pursuant to this
subsection 2.7 may not be reinstated.
2.8 Optional Prepayment. The Company may, upon five Business
Days' irrevocable notice to the Agent (which shall notify the Banks thereof
as soon as practicable), prepay Committed Rate Loans. If any Committed
Rate Loan shall be prepaid on any day other than the last day of the
Interest Period applicable thereto, the Company shall, on the date of such
payment, also pay all interest accrued on such Loan to the date of such
payment and all amounts payable pursuant to subsection 2.17 in connection
therewith.
2.9 Minimum Principal Amount and Maximum Number of Eurodollar
Tranches. All borrowings, conversions, payments and prepayments in respect
of Committed Rate Loans shall be in such amounts and be made pursuant to
such elections so that after giving effect thereto each Eurodollar Tranche
shall be equal to $5,000,000 or a whole multiple of $1,000,000 in excess
thereof, and the number of Eurodollar Tranches shall not exceed five.
2.10 Loan Interest Rates and Payment Dates. (a) The Eurodollar
Loans shall bear interest for the period from the date thereof until the
stated maturity thereof on the unpaid principal amount thereof at a rate
per annum equal to the Eurodollar Rate determined for the Interest Period
therefor plus the Applicable Margin.
(b) The Reference Rate Loans shall bear interest on the unpaid
principal amount thereof for each day during the period from the date
thereof until the payment in full thereof at a fluctuating rate per annum
equal to the Reference Rate for such day plus the Applicable Margin.
(c) If all or a portion of the principal amount of any of the
Loans shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), such overdue principal amount of such Loan and
unpaid interest accrued thereon (i) shall bear interest at a rate per annum
which is 2% above the Reference Rate, from the date when such amount is due
until the date on which such amount is paid in full and (ii) shall, if such
Loan is a Eurodollar Loan, be converted to a Reference Rate Loan at the end
of the Interest Period applicable thereto.
(d) Interest on each Committed Rate Loan shall be payable in
arrears on each Interest Payment Date.
2.11 Computation of Interest and Fees. (a) Interest payable
hereunder with respect to Reference Rate Loans shall be calculated on the
basis of a year of 365/6 days for the actual days elapsed. All other fees,
interest and all other amounts payable hereunder shall be calculated on the
basis of a 360 day year for the actual days elapsed. The Agent shall
notify the Company and the Banks of each determination of a Eurodollar Rate
<PAGE> 18
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on the Business Day of the determination thereof. Any change in the
interest rate on a Committed Rate Loan resulting from a change in the
Applicable Margin, the Eurocurrency Reserve Requirements, or the Reference
Rate shall become effective as of the opening of business on the day on
which such Applicable Margin changes as provided herein or such change in
the Reserve Percentage, the Eurocurrency Reserve Requirements or Reference
Rate shall become effective. The Agent shall as soon as practicable notify
the Company and the Banks of the effective date and the amount of each such
change.
(b) Each determination of an interest rate by the Agent pursuant
to any provision of this Agreement shall be conclusive and binding on the
Company and the Banks in the absence of manifest error.
2.12 Pro Rata Treatment and Payments. Each borrowing by the
Company of Committed Rate Loans and any reduction of the Commitments shall
be made pro rata according to the respective Commitment Percentages of the
Banks. Each payment by the Company under this Agreement or any Note shall
be applied, first, to any fees then due and owing pursuant to subsection
2.6, second, to interest then due and owing in respect of the Notes and,
third, to principal then due and owing hereunder and under the Notes. Each
payment by the Company on account of any fees pursuant to subsection 2.6
shall be made pro rata in accordance with the respective amounts due and
owing. Each payment (other than prepayments) by the Company on account of
principal of and interest on the Loans shall be made pro rata according to
the respective amounts due and owing. Each prepayment on account of
principal of the Loans shall be applied, first, to the Committed Rate
Loans, pro rata according to the respective amounts outstanding and,
second, to Bid Loans, pro rata according to the respective amounts
outstanding; provided, that nothing herein shall be deemed to permit
optional prepayments on account of Bid Loans. All payments (including
prepayments) to be made by the Company on account of principal, interest
and fees shall be made without setoff or counterclaim and shall be made to
the Agent for the account of the Banks at the Agent's office specified in
subsection 9.2 in Dollars and in immediately available funds. The Agent
shall distribute such payments to the Banks entitled thereto promptly upon
receipt in like funds as received. If any payment hereunder of fees or
principal of or interest on Reference Rate Loans or Bid Loans becomes due
and payable on a day other than a Business Day, such payment shall be
extended to the next succeeding Business Day, and, with respect to payments
of principal, interest thereon shall be payable during such extension at
the rate then applicable hereunder.
2.13 Non-Receipt of Funds by the Agent. (a) Unless the Agent
shall have been notified by a Bank prior to the date of the Committed Rate
Loan or Loans to be made by such Bank (which notice shall be effective as
to the Agent upon receipt) that such Bank does not intend to make the
proceeds of such Committed Rate Loan or Loans available to the Agent, the
Agent may assume that such Bank has made such proceeds available to the
Agent on such date, and the Agent may in reliance upon such assumption (but
shall not be required to) make available to the Company a corresponding
amount. If such amount is made available to the Agent on a date after such
Borrowing Date, such Bank shall pay to the Agent on demand an amount equal
to the product of (i) the daily average federal funds rate during such
period as quoted by the Agent, times (ii) the amount of such Bank's
<PAGE> 19
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Commitment Percentage of such borrowing, times (iii) a fraction, the
numerator of which is the number of days that elapse from and including
such Borrowing Date to the date on which such Bank's Commitment Percentage
of such borrowing shall have become immediately available to the Agent and
the denominator of which is 360. A certificate of the Agent submitted to
any Bank with respect to any amounts owing under this subsection 2.13 shall
be conclusive, absent manifest error. If such Bank's Commitment Percentage
is not in fact made available to the Agent by such Bank within three
Business Days of such Borrowing Date, the Agent shall as soon as
practicable thereafter notify the Company thereof, and the Agent shall be
entitled to recover such amount with interest thereon at the rate per annum
applicable to Reference Rate Loans hereunder, on demand, from the Company.
(b) Unless the Agent shall have been notified by the Company
prior to the date on which any payment is due from it hereunder (which
notice shall be effective upon receipt) that the Company does not intend to
make such payment, the Agent may assume that the Company has made such
payment when due, and the Agent may in reliance upon such assumption (but
shall not be required to) make available to each Bank on such payment date
an amount equal to the portion of such assumed payment to which such Bank
is entitled hereunder, and if the Company has not in fact made such payment
to the Agent, such Bank shall, on demand, repay to the Agent the amount
made available to such Bank together with interest thereon in respect of
each day during the period commencing on the date such amount was made
available to such Bank and ending on (but excluding) the date such Bank
repays such amount to the Agent, at a rate per annum equal to the Agent's
cost of obtaining overnight funds in the federal funds market in New York
on each such day.
(c) A certificate of the Agent submitted to the Company or any
Bank with respect to any amount owing under this subsection shall be
conclusive absent manifest error.
2.14 Inability to Determine Interest Rate.
Notwithstanding any other provision of this Agreement, if (i) Chemical is
not, for any reason whatsoever, being quoted a rate referred to in the
definition of Eurodollar Base Rate or (ii) the Majority Banks shall
determine (which determination shall be conclusive) that the rate quoted by
Chemical for the purpose of computing the Eurodollar Base Rate does not
adequately and fairly reflect the cost to such Banks of funding Eurodollar
Loans that the Company has requested be made on a given Borrowing Date, the
Agent shall forthwith give telex notice of such determination, confirmed in
writing, to the Company and the Banks at least two Business Days prior to
the requested Borrowing Date for such Eurodollar Loans. Unless the Company
shall have notified the Agent upon receipt of such telex or telephone
notice that it wishes to rescind or modify its request regarding such
Eurodollar Loans, any requested Eurodollar Loans shall be made as Reference
Rate Loans. Until any such notice has been withdrawn by the Agent, no
further Eurodollar Loans shall be made.
2.15 Illegality. Notwithstanding any other provision of this
Agreement, if any Requirement of Law or any change therein or in the
interpretation or application thereof by the relevant Governmental
Authority or any Bank shall make it unlawful for such Bank to make
Eurodollar Loans as contemplated by this Agreement or to obtain in the
interbank eurodollar market the funds with which to make such Loans, (a)
<PAGE> 20
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such Bank shall promptly notify the Agent and the Company thereof, (b) the
commitment of such Bank hereunder to make Eurodollar Loans shall forthwith
be cancelled and (c) such Bank's Committed Rate Loans then outstanding as
Eurodollar Loans, if any, shall be repaid and reborrowed on the Interest
Payment Date for such Loans, or within such earlier period as required by
law, as Reference Rate Loans. The Company hereby agrees promptly to pay
any Bank, upon its demand, any additional amounts necessary to compensate
such Bank for actual and direct costs reasonably incurred by such Bank in
making any repayment in accordance with this subsection 2.15 including, but
not limited to, any interest or fees payable by such Bank to lenders of
funds obtained by it in order to make or maintain its Eurodollar Loans
hereunder. A certificate as to any additional amounts payable pursuant to
this subsection submitted by such Bank, through the Agent, to the Company
shall be conclusive in the absence of manifest error. Each Bank agrees to
use reasonable efforts to avoid or to minimize any amounts which may
otherwise be payable pursuant to this subsection; provided, however, that
such efforts shall not cause the imposition on such Bank of any additional
costs or legal or regulatory burdens deemed by such Bank to be material.
2.16 Requirements of Law. (a) In the event that any change in
any Requirement of Law or in the interpretation or application of any
Requirement of Law by the relevant Governmental Authority or any Bank after
the date hereof or compliance by any Bank with any request or directive
(whether or not having the force of law) from any central bank or other
Governmental Authority made subsequent to the date hereof:
(i) does or shall subject such Bank to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar
Loan made by it, or change the basis of taxation of payments to such
Bank of principal, fees, interest or any other amount payable
hereunder (except for taxes covered by subsection 2.18 and changes in
the rate of tax on the overall net income of such Bank);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, or deposits or other liabilities in or for the account of,
advances or loans by, or other extensions of credit extended by, or
any other acquisition of funds by, any office of such Bank which is
not otherwise included in the determination of the Eurodollar Rate
hereunder;
(iii) shall impose on such Bank any other condition;
and the result of any of the foregoing is to increase the cost to such
Bank, by an amount which such Bank deems to be material, of making,
converting into, continuing or maintaining Loans or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, the
Company shall promptly pay such Bank, upon its demand, any additional
amounts necessary to compensate such Bank for such cost or reduced amount
receivable. A certificate as to any additional amounts payable pursuant to
this subsection submitted by such Bank, through the Agent, to the Company
shall be conclusive in the absence of manifest error. Each Bank agrees to
use reasonable efforts to avoid or to minimize any amounts which might
otherwise be payable pursuant to this paragraph of this subsection;
<PAGE> 21
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provided, however, that such efforts shall not cause the imposition on such
Bank of any additional costs or legal or regulatory burdens deemed by such
Bank to be material.
(b) In the event that any Bank shall have determined that any
change in any Requirement of Law regarding capital adequacy, or any change
in the interpretation or application of any such Requirement of Law or
compliance by such Bank or any corporation controlling such Bank with any
request or directive regarding capital adequacy (whether or not having the
force of law) from any central bank or Governmental Authority made
subsequent to the date hereof, does or shall have the effect of reducing
the rate of return on such Bank's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such
Bank or such corporation could have achieved but for such adoption, change
or compliance (taking into consideration such Bank's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Bank
to be material, then from time to time, within 15 days after demand by such
Bank, the Company shall pay to such Bank such additional amount as shall be
certified by such Bank as being required to compensate it for such
reduction.
(c) The agreements in this subsection shall survive the
termination of this Agreement and payment of the Notes and all other
amounts payable hereunder.
2.17 Indemnity. The Company hereby agrees to indemnify each
Bank and to hold such Bank harmless from any loss or expense which such
Bank may sustain or incur as a consequence of (a) default by the Company in
payment of the principal amount of or interest on any Eurodollar Loan by
such Bank, (b) default by the Company in making a borrowing after the
Company has given a notice in accordance with subsection 2.3 or a notice in
accordance with paragraph 2.5(b)(ii) which has not been revoked in
accordance with clause 2.5(b)(iii)(A), (c) default by the Company in making
any prepayment after the Company has given a notice in accordance with
subsection 2.8 and/or (d) the making by the Company of a prepayment of a
Eurodollar Loan on a day which is not the last day of the Interest Period
with respect thereto, in each case including, but not limited to, any such
loss or expense arising from interest or fees payable by such Bank to
lenders of funds obtained by it in order to maintain its Loans hereunder.
A certificate as to any additional amounts payable pursuant to this
subsection submitted by any Bank, through the Agent, to the Company shall
be conclusive in the absence of manifest error. The agreements in this
subsection shall survive termination of this Agreement and payment of the
Notes and all other amounts payable hereunder.
2.18 Taxes. (a) All payments made by the Company under this
Agreement and the Notes shall be made free and clear of, and without
reduction for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding, in the case of the Agent
and each Bank, net income and franchise taxes based upon net income imposed
on the Agent or such Bank, as the case may be, by the jurisdiction under
the laws of which it is organized or in which is located any office from or
at which such Bank is making or maintaining its Loan, or any political
subdivision or taxing authority thereof or therein, (all such non-excluded
<PAGE> 22
22
taxes, levies, imposts, duties, deductions, charges, fees or withholdings
being hereinafter called "Taxes"). If any Taxes are required to be
withheld from any amounts payable to the Agent or any Bank hereunder or
under the Notes, the amounts so payable to the Agent or such Bank shall be
increased to the extent necessary to yield to the Agent or such Bank (after
payment of all Taxes) interest or any such other amounts payable hereunder
at the rates or in the amounts specified in this Agreement and the Notes.
Whenever any Taxes are payable by the Company, as promptly as possible
thereafter, the Company shall send to the Agent, for its own account or for
the account of such Bank, as the case may be, a certified copy of an
original official receipt or other documentary evidence received by the
Company showing payment thereof. If the Company fails to pay any Taxes
when due to the appropriate taxing authority or fails to remit to the Agent
the required receipts or other required documentary evidence, the Company
shall indemnify the Agent and the Banks for any incremental taxes, interest
or penalties that may become payable by the Agent or any Bank as a result
of any such failure.
(b) Prior to the first Interest Payment Date each Bank that is
not incorporated under the laws of the United States of America or a state
thereof agrees that it will deliver to the Company and the Agent (i) two
duly completed copies of United States Internal Revenue Service Form 1001
or 4224 or successor applicable form, as the case may be, certifying in
each case that such Bank is entitled to receive payments under this
Agreement and the Notes payable to it, without deduction or withholding of
any United States federal income taxes, and (ii) an Internal Revenue
Service Form W-8 or W-9 or successor applicable form, as the case may be,
to establish an exemption from United States backup withholding tax. Each
Bank which delivers to the Company and the Agent a Form 1001 or 4224 and
Form W-8 or W-9 pursuant to the next preceding sentence further undertakes
to deliver to the Company and the Agent two further copies of the said
letter and Form 1001 or 4224 and Form W-8 or W-9, or successor applicable
forms, or other manner of certification, as the case may be, on or before
the date that any such letter or form expires or becomes obsolete or after
the occurrence of any event requiring a change in the most recent letter
and form previously delivered by it to the Company, and such extensions or
renewals thereof as may reasonably be requested by the Company, certifying
in the case of a Form 1001 or 4224 that such Bank is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes, unless in any such cases an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent
such Bank from duly completing and delivering any such letter or form with
respect to it and such Bank advises the Company that it is not capable of
receiving payments without any deduction or withholding of United States
federal income tax, and in the case of a Form W-8 or W-9, establishing an
exemption from United States backup withholding tax.
(c) Each Bank agrees to use reasonable efforts to avoid or to
minimize any amounts which might otherwise be payable pursuant to this
subsection; provided, however, that such efforts shall not cause the
imposition on such Bank of any additional costs or legal or regulatory
burdens deemed by such Bank to be material.
<PAGE> 23
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(d) The agreements in this subsection shall survive the
termination of this Agreement and the payment of the Notes and all other
amounts payable hereunder.
2.19 Use of Proceeds. The Company agrees that the proceeds of
the initial Loans shall be used to pay in full the Financial Indebtedness
of the Company outstanding on the Closing Date under the Prior Credit
Agreement, if any. The proceeds of subsequent Loans shall be used for
working capital or other general corporate purposes of the Company.
2.20 Extension of Termination Date. (a) No later than one year
prior to the Termination Date then in effect, provided that no Default or
Event of Default shall have occurred and be continuing, the Company may
request an extension of such Termination Date by submitting to the Agent an
Extension Request containing the information in respect of such extension
specified in Exhibit L, which the Agent shall promptly furnish to each
Bank. If the Required Banks shall approve in writing the extension of the
Termination Date requested in such Extension Request, the Termination Date
shall automatically and without any further action by any Person be
extended for the period specified in such Extension Request; provided that
(i) each extension pursuant to this subsection 2.20 shall be for a maximum
of one year, (ii) after giving effect to any extension, the Termination
Date shall not be more than five years after the date of such extension and
(iii) the Commitment of any Bank which does not consent in writing to such
extension within 30 days of its receipt of such Extension Request (an
"Objecting Bank") shall, unless earlier terminated in accordance with this
Agreement, expire on the Termination Date in effect on the date of such
Extension Request. If, within 30 days of their receipt of an Extension
Request, the Required Banks shall not approve in writing the extension of
the Termination Date requested in such Extension Request, the Termination
Date shall not be extended pursuant to such Extension Request. The Agent
shall promptly notify (y) the Banks and the Company of any extension of the
Termination Date pursuant to this subsection 2.20 and (z) the Company and
any other Bank of any Bank which becomes an Objecting Bank.
(b) Any Objecting Bank the Commitment of which shall expire
prior to any extended Termination Date shall, subject to subsection
2.20(c), have its Committed Rate Loans prepaid in full on such expiration
date, together with accrued interest thereon, and shall have any accrued
and unpaid commitment fee and all other Obligations payable to it hereunder
paid on the first date to occur following such expiration date on which the
fees referred to in subsection 2.6(b) are payable to the non-Objecting
Banks or, if such fees shall be so payable on such expiration date, such
unpaid commitment fee and Obligations shall be paid on such expiration
date.
(c) The Company shall have the right, so long as no Default or
Event of Default has occurred and is then continuing, upon giving notice to
the Agent and an Objecting Bank in accordance with subsection 2.8, to
prepay in full the Committed Rate Loans of such Objecting Bank, together
with accrued interest thereon, any accrued and unpaid commitment fee and
all other Obligations payable to it hereunder and/or, upon giving not less
than three Business Days' notice to such Objecting Bank and the Agent, to
cancel the whole or part of the Commitment of such Objecting Bank.
<PAGE> 24
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SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Banks to enter into this Agreement and to make the
Loans herein provided for, the Company hereby represents and warrants to
the Agent and to each Bank that:
3.1 Financial Condition. The audited consolidated balance sheet
of the Company and its consolidated Subsidiaries as at December 31, 1993
and the related audited consolidated statements of income and retained
earnings and of changes in cash flow for the year then ended, accompanied
by the opinions of Price Waterhouse dated February 1, 1994 and March 1,
1994, copies of which have heretofore been furnished to each Bank, are
complete and correct and present fairly the consolidated financial
condition of the Company and its consolidated Subsidiaries as at such date,
and the consolidated results of their operations and changes in cash flow
for the fiscal year then ended. The unaudited consolidated balance sheet
of the Company and its consolidated Subsidiaries as at April 1, 1994 and
the related unaudited consolidated statements of income and of cash flows
for the three-month period ended on such date, certified by a Responsible
Officer, copies of which have heretofore been furnished to each Bank, are
complete and correct and present fairly the consolidated financial
condition of the Company and its consolidated Subsidiaries as at such date,
and the consolidated results of their operations and their consolidated
cash flows for the three-month period then ended (subject to normal
year-end audit adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the period involved (except as
disclosed therein).
3.2 No Change. Since April 1, 1994, there has been no material
adverse change in the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole.
3.3 Corporate Existence; Compliance with Law. Each of the
Company and its Subsidiaries (a) is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization, (b)
has the corporate power and authority and the legal right to own and
operate its property, to lease the property it operates as lessee and to
conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign corporation and in good standing under the laws of
each jurisdiction where its ownership, lease or operation of property or
the conduct of its business requires such qualification and (d) is in
compliance with all Requirements of Law, except, in the case of clauses (c)
or (d) above, to the extent that the failure to comply therewith would not
be reasonably likely, in the aggregate, to have a material adverse effect
on the business, operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole. Schedule 3.3 correctly
sets forth the ownership interests in each of the Company's Subsidiaries on
the date of this Agreement, and the Company has no Subsidiary on the date
of this Agreement, not shown on Schedule 3.3.
3.4 Corporate Power; Authorization; Enforceable Obligations.
The Company has full power and authority and the legal right to make,
<PAGE> 25
25
deliver and perform this Agreement and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement by the
Company. No consent or authorization of, filing with or other act by or in
respect of any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery or
performance of this Agreement or the Notes by the Company or with the
validity or enforceability of this Agreement or the Notes against the
Company. This Agreement has been duly executed and delivered on behalf of
the Company. This Agreement constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (whether enforcement is sought by proceedings in
equity or at law). The Company has full power and authority and the legal
right to make, deliver and perform the Notes and to borrow hereunder and
has taken all necessary action to authorize the borrowings contemplated by
this Agreement on the terms and conditions of this Agreement and the Notes
and to authorize the execution, delivery and performance of the Notes. On
the Closing Date, each Committed Rate Note and Grid Bid Loan Note, and on
the date of delivery thereof, each Individual Bid Loan Note, will have been
duly executed and delivered on behalf of the Company and will constitute a
legal, valid and binding obligation of the Company enforceable against the
Company in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and
by general equitable principles (whether enforcement is sought by
proceedings in equity or at law).
3.5 No Legal Bar; No Default. The execution, delivery and
performance of this Agreement and the Notes, the borrowings hereunder and
the use of the proceeds thereof will not violate any Requirement of Law or
any Contractual Obligation of the Company or of any of its Subsidiaries and
will not result in, or require, the creation or imposition of any Lien on
any of its or their respective properties or revenues pursuant to any
Requirement of Law or Contractual Obligation. Neither the Company nor any
of its Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which could be materially adverse to
the business, operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole. No Default or Event of
Default has occurred and is continuing.
3.6 No Material Litigation. No litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending
or, to the best knowledge of the Company, threatened by or against the
Company or any of its Subsidiaries or against any of its or their
respective properties or revenues (a) with respect to this Agreement or the
Notes or any Loan or any of the transactions contemplated hereby, or (b)
which has any reasonable likelihood of having a material adverse effect on
the business, operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole.
3.7 Investment Company Act. The Company is not an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
<PAGE> 26
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3.8 Federal Regulations. No part of the proceeds of any Loan
hereunder will be used directly or indirectly for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation
G, T, U or X of the Board of Governors of the Federal Reserve System as now
and from time to time hereafter in effect.
3.9 ERISA. No Reportable Event has occurred during the
five-year period prior to the date on which this representation is made or
deemed made with respect to any Plan, and each Plan has complied in all
material respects with the applicable provisions of ERISA and the Code.
The present value of all benefit obligations under each Single Employer
Plan maintained by the Company or any Commonly Controlled Entity (based on
those assumptions used to fund the Plans) did not, as of the last annual
valuation date, exceed the value of the assets of each such Plan allocable
to such obligations by an amount in excess of $7,500,000. Neither the
Company nor any Commonly Controlled Entity has had a complete or partial
withdrawal from any Multiemployer Plan and the liability to which the
Company or any Commonly Controlled Entity would become subject under ERISA
if the Company or any such Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most
closely preceding the date hereof is not in excess of $0. No such
Multiemployer Plan is in Reorganization or Insolvent.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The obligation of each Bank to
make its initial Loan hereunder is subject to the satisfaction of the
following conditions precedent:
(a) Execution of Agreement. The Agent shall have received one
or more counterparts of this Agreement, executed by a duly authorized
officer of each party hereto.
(b) Notes. The Agent shall have received for the account of
each Bank a Committed Rate Note and a Grid Bid Loan Note conforming to
the requirements hereof and executed by a duly authorized officer of
the Company, and the Agent shall promptly forward such Notes to the
appropriate Banks.
(c) Officers' Certificate. The Agent shall have received, with
a counterpart for each Bank, an Officers' Certificate of the Company,
dated the Closing Date, substantially in the form of Exhibit I with
appropriate insertions, executed by a Responsible Officer of the
Company.
(d) Assistant Secretary's Certificate of the Company. The Agent
shall have received, with a counterpart for each Bank, a certificate
of the Assistant Secretary of the Company dated the Closing Date,
substantially in the form of Exhibit J with appropriate insertions and
attachments.
(e) Legal Opinion of Counsel to the Company. The Agent shall
have received, with a copy for each Bank, an opinion of Paul Buffum,
<PAGE> 27
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Secretary and Counsel of the Company, dated the Closing Date and
addressed to the Agent and the Banks, substantially in the form of
Exhibit K. Such opinion shall also cover such other matters incident
to the transactions contemplated by this Agreement as the Agent shall
reasonably require.
(f) Fees. The Agent shall have received the fees to be received
on the Closing Date in connection with this Agreement.
(g) Commitments Under Prior Credit Agreement. The Company shall
provide evidence satisfactory to the Agent and its counsel that all
commitments to extend credit under the Prior Credit Agreement have
been terminated pursuant thereto and all fees and other Obligations
payable thereunder shall have been paid in full. Each Bank by its
signature hereto waives the requirement of 5 days notice of
termination of its Commitment under, and as defined in, the Prior
Credit Agreement.
(h) Additional Matters. All other documents and legal matters
in connection with the transactions contemplated by this Agreement
shall be satisfactory in form and substance to the Agent and its
counsel.
4.2 Conditions to All Loans. The obligation of each Bank to
make any Loan to be made by it hereunder (including the initial Loan) is
subject to the satisfaction of the following conditions precedent on the
date of making such Loan:
(a) Representations and Warranties. The representations and
warranties made by the Company herein or which are contained in any
certificate, document or financial or other statement furnished at any
time under or in connection herewith shall be correct on and as of the
date of such Loan as if made on and as of such date.
(b) No Default or Event of Default. No Default or Event of
Default shall have occurred and be continuing on such date or after
giving effect to the Loan to be made on such date.
(c) Additional Conditions to Bid Loans. If such Loan is made
pursuant to subsection 2.5, all conditions set forth in such
subsection shall have been satisfied.
Each acceptance by the Company of a Loan shall be deemed to
constitute a representation and warranty by the Company as of the date of
such Loan that the applicable conditions in paragraphs (a), (b) and (c) of
this subsection have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain
in effect, any Note remains outstanding and unpaid or any other amount is
owing to the Agent or any Bank hereunder, the Company shall and, in the
case of subsections 5.3, 5.4, 5.5 and 5.6, shall cause each of its
Subsidiaries to:
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5.1 Financial Statements. Furnish to the Agent and each Bank:
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of the Company, a copy of the consolidated
balance sheet of the Company and its consolidated Subsidiaries as at
the end of such year and the related consolidated statements of income
and retained earnings and changes in cash flow for such year, setting
forth in each case in comparative form the figures for the previous
year, reported on without a "going concern" or like qualification or
exception, or qualification arising out of the scope of the audit, by
independent certified public accountants of nationally recognized
standing not unacceptable to the Banks; and
(b) as soon as available, but in any event not later than 45
days after the end of each of the first three quarterly periods of
each fiscal year of the Company, the unaudited consolidated balance
sheet of the Company and its consolidated Subsidiaries as at the end
of each such quarter and the related unaudited consolidated statements
of income and retained earnings of the Company and its consolidated
Subsidiaries for such quarter and the portion of the fiscal year
through such date and cash flows of the Company and its consolidated
Subsidiaries for such date, setting forth in each case in comparative
form the figures for the previous year, certified by a Responsible
Officer (subject to normal year-end audit adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein (except
as approved by such accountants or officer, as the case may be, and
disclosed therein).
5.2 Certificates; Other Information. Furnish to each Bank:
(a) concurrently with the delivery of the financial statements
referred to in subsections 5.1(a) and (b), a certificate of a
Responsible Officer stating that, to the best of such officer's
knowledge, the Company during such period has observed or performed
all of its covenants and other agreements, and satisfied every
condition, contained in this Agreement and in the Notes to be
observed, performed or satisfied by it, and that such officer has
obtained no knowledge of any Default or Event of Default except as
specified in such certificate; each certificate delivered pursuant to
this subsection 5.2(a) shall be accompanied by a schedule setting
forth computations as of the date of the relevant financial statements
of each of the financial covenants specified in subsections 6.1(a)
through (d), 6.2 (stating the principal amount of indebtedness which
is secured by permitted Liens), 6.3, 6.4, and 6.5 and of the total
amount of Asset Dispositions made subsequent to July 1, 1994;
(b) within five Business Days after the same are sent, copies of
all financial statements and reports which the Company sends to its
stockholders, and within five days after the same are filed, copies of
all financial statements and reports which the Company may make to, or
file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority; and
<PAGE> 29
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(c) promptly, such additional financial and other information as
any Bank may from time to time reasonably request.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent and any additional
costs are imposed as a result thereof, as the case may be, all its material
obligations of whatever nature, except when the amount or validity thereof
is currently being contested in good faith by appropriate proceedings and
reserves in conformity with GAAP with respect thereto have been provided on
the books of the Company or its Subsidiaries, as the case may be.
5.4 Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as now conducted by the
Company and its Subsidiaries taken as a whole and preserve, renew and keep
in full force and effect its corporate existence and take all reasonable
action to maintain all rights, privileges, licenses, qualifications,
permits and franchises necessary or desirable in the normal conduct of its
businesses; comply with all Contractual Obligations and Requirements of Law
applicable to it except to the extent that failure to comply therewith
could not, in the aggregate, have a material adverse effect on the
business, operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole and could not adversely
affect the ability of the Company to perform its obligations under this
Agreement and the Notes.
5.5 Maintenance of Property; Insurance. Keep all property
useful and necessary in its business in good working order and condition;
maintain with financially sound and reputable insurance companies insurance
on all its property in at least such amounts and against at least such
risks as are usually insured against in the same general area by companies
engaged in the same or a similar business; and furnish to each Bank, upon
written request, full information as to the insurance carried; provided,
however, that the Company may maintain self insured plans to the extent
companies of similar size and in similar businesses do so.
5.6 Inspection of Property; Books and Records;
Discussions. Keep proper books of records and account in which full, true
and correct entries in conformity with GAAP and all Requirements of Law
shall be made of all dealings and transactions in relation to its
businesses and activities; and permit representatives of any Bank to visit
and inspect any of its properties and examine and make abstracts from any
of its books and records during normal business hours and as often as may
reasonably be desired, and to discuss the business, operations, properties
and financial and other condition of the Company and its Subsidiaries with
officers and employees of the Company and its Subsidiaries and with its
independent certified public accountants.
5.7 Notices. Promptly give notice to the Agent (which shall
promptly transmit such notice to each Bank):
(a) of the occurrence of any Event of Default or any Default,
such notice to be accompanied by a certificate of a Responsible
Officer specifying the nature of such event, the period of existence
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thereof and what action the Company proposes to take with respect
thereto;
(b) of any (i) default or event of default under any Contractual
Obligation of the Company or any of its Subsidiaries or (ii)
litigation, investigation or proceeding which may exist at any time
between the Company or any of its Subsidiaries and any Governmental
Authority, which in either case, if not cured or if adversely
determined, as the case may be, would have a material adverse effect
on the business, operations, property or financial or other condition
of the Company and its Subsidiaries taken as a whole or would have an
adverse effect on the ability of the Company to perform its
obligations under this Agreement and the Notes;
(c) of any material litigation or proceeding affecting the
Company or any of its Subsidiaries;
(d) of any material adverse change in the business, operations,
property or financial or other condition of the Company and its
Subsidiaries taken as a whole or of any event which could adversely
affect the ability of the Company to perform its obligations under
this Agreement and the Notes.
Each notice pursuant to this subsection shall be accompanied by a statement
of a Responsible Officer of the Company setting forth details of the
occurrence referred to therein and stating what action the Company proposes
to take with respect thereto.
SECTION 6. NEGATIVE COVENANTS
The Company hereby agrees that, so long as the Commitments remain
in effect, any Note remains outstanding and unpaid or any other amount is
owing to the Agent or any Bank hereunder, the Company shall not, nor shall
it permit any of its Subsidiaries to, directly or indirectly:
6.1 Financial Condition Covenants.
(a) Consolidated Interest Coverage Ratio. At the last day of
each fiscal quarter, permit the Consolidated Interest Coverage Ratio for
the period of four consecutive fiscal quarters ending on such day (or in
the case of September 30, 1994, December 31, 1994 and March 31, 1995, the
three-, six- and nine-month periods, respectively, ending on such dates) to
be less than 3.0 to 1.
(b) Current Ratio. Permit the ratio of Consolidated Current
Assets to Consolidated Current Liabilities to be less than (i) 1.1 to 1 at
any time prior to the end of the Company's third quarter in its 1994 fiscal
year and (ii) 1.2 to 1 at any time thereafter.
(c) Consolidated Tangible Net Worth. Permit Consolidated
Tangible Net Worth at any time to be less than an amount equal to
$74,000,000 plus the sum of (i) 50% of Consolidated Net Income arising
<PAGE> 31
31
after April 1, 1994 and computed on a cumulative basis (without any
deduction, however, for any fiscal quarter for which Consolidated Net
Income is negative) through the end of the fiscal quarter immediately
preceding the date of determination and (ii) the net proceeds paid to the
Company of any offering of any shares of capital stock of the Company
(other than, in the case of any preferred stock requiring mandatory
redemption or sinking fund payments prior to May 31, 1995, those shares
which are subject to such requirement) from the Closing Date and through
the end of the fiscal quarter immediately preceding the date of
determination (including any such proceeds derived from the issuance of
shares of capital stock of the Company (other than, in the case of any
preferred stock requiring mandatory redemption or sinking fund payments
prior to May 31, 1995, those shares of which that are subject to such
requirement) as a result of the exercise of stock options of the Company or
from the conversion of debt securities of the Company).
(d) Funded Debt to Total Capitalization. Permit the ratio of
Funded Debt to Total Capitalization to exceed 0.4 to 1 at any time.
6.2 Liens. Create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or
hereafter acquired, except:
(a) Liens for taxes not yet due or which are being contested in
good faith and by appropriate proceedings if adequate reserves with
respect thereto are maintained on the books of the Company or its
Subsidiaries, as the case may be, in accordance with generally
accepted accounting principles;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other Liens arising in the ordinary course of business
which are not overdue for a period of more than 30 days or which are
being contested in good faith and by appropriate proceedings;
(c) pledges or deposits in connection with workmen's
compensation, unemployment insurance and other social security
legislation;
(d) deposits to secure the performance of bids, leases, trade
contracts (other than for borrowed money), statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a
like nature incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the businesses of the Company
and its Subsidiaries;
(f) Liens in existence on the date hereof and which secure
obligations reflected in the financial statements referred to in
subsection 3.1;
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(g) Liens on assets of Persons which become Subsidiaries after
the date of this Agreement; provided, however, that such Liens existed
at the time the respective Persons became Subsidiaries and were not
created in anticipation thereof;
(h) Liens in respect of judgments or awards or in respect of
attachments (i) in an aggregate amount less than $250,000 that remain
in existence for a period of no more than 60 days after the same shall
have been created or (ii) which shall have been discharged, stayed
pending appeal or bonded within 5 Business Days after the creation
thereof and which shall, at the time, be contested in good faith in
appropriate proceedings;
(i) purchase money Liens (including the interest of lessors
under capital leases and of the seller under conditional sale or other
title retention agreements) securing Financial Indebtedness of any
type described in clause (a) or (b) of the definition of Financial
Indebtedness, or of the Company of the type described in clause (f) of
said definition incurred to finance the acquisition of a capital asset
after the Closing Date in accordance with the provisions hereof,
provided that the principal amount of such Financial Indebtedness
shall not exceed in any case the cost to the Company or any Subsidiary
of the real or personal property acquired and each such Lien shall
cover only such real or personal property acquired, the proceeds
thereof, substitutions therefor and replacements thereof, the land on
which real property acquired is located, and improvements on real
property acquired which under law become part of such real property;
(j) Liens on documents and goods in transit securing Financial
Indebtedness of the type described in clause (d) of the definition of
Financial Indebtedness in respect of commercial letters of credit;
(k) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Lien referred to in the foregoing clauses paragraphs (a) through (j);
provided, however, that the principal amount of Financial Indebtedness
secured thereby shall not exceed the principal amount of Financial
Indebtedness so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement Lien
shall be limited to all or a part of the property which secured the
Lien so extended, renewed or replaced (plus improvements on such
property); and
(l) Liens with respect to which the aggregate principal amount
of Financial Indebtedness secured thereby does not exceed $500,000 at
any time.
6.3 Limitation on Consolidation, Merger and Dispositions and
Purchases of Property.
(a) Enter into any Asset Disposition if, after giving effect to
such Asset Disposition, the aggregate book value of all assets which are
the subject of Asset Dispositions subsequent to July 1, 1994 would exceed
20% of the excess of consolidated total assets over goodwill, cash and cash
<PAGE> 33
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equivalents of the Company and its Subsidiaries as at the date of the most
recent quarter end for which financial statements shall have been delivered
to the Banks pursuant to subsection 5.1.
(b) Consolidate with or merge into any other Person or permit
any other Person to merge into or consolidate with it, except that (i) a
Subsidiary may merge into or consolidate with a wholly-owned Subsidiary,
(ii) the Company may merge into or consolidate with a wholly-owned
Subsidiary, provided, that the Company is the entity surviving such merger,
(iii) another Person may merge into a Subsidiary, provided that such
Subsidiary shall be the entity surviving such merger, and (iv) another
Person may merge into the Company, provided that the Company is the entity
surviving such merger.
(c) Purchase any assets, including, without limitation, any
capital stock (other than common stock of the Company), but excluding
purchases of inventory in the ordinary course of business, in a transaction
or a series of related transactions, with an aggregate fair market value of
$25,000,000 or more.
6.4 Limitation on Sale of Accounts Receivable, etc. Sell or in
any manner dispose of any accounts receivable or chattel paper, provided,
however, that the Company or any Subsidiary may sell (a) delinquent
accounts receivable and chattel paper for the purposes of collection, and
(b) receivables that, at the time of sale, have a due date occurring one
year or longer from such time, provided that the cumulative amount of such
receivables sold subsequent to the date hereof pursuant to this clause (b)
does not exceed $10,000,000.
6.5 Limitation on Sales and Leasebacks. Directly or indirectly
become liable, as lessee or guarantor or other surety, with respect to any
lease of real or personal property, whether now owned or hereafter
acquired, (a) which is to be sold or transferred by the Company or any
Subsidiary, to any Person, or (b) which the Company or any Subsidiary
intends to use for substantially the same purpose as any other property
which has been or is to be sold or transferred by the Company or any
Subsidiary to any Person in connection with such lease, except that the
Company or any Subsidiary may become liable as such a lessee (or, in the
case of the Company, as such a guarantor or surety) (i) under any such
lease representing Financial Indebtedness described in clause (b) of the
definition of Financial Indebtedness, if after giving effect to such lease,
the aggregate Financial Indebtedness described in said clause (b) under
such leases (other than the leases described in subclause (ii) and (iii)
below) does not exceed $5,000,000, (ii) if such a lease is entered into
with respect to a tax exempt financing of such leased property, the Company
or any such Subsidiary is required to enter into such sale and leaseback in
order to obtain such tax exemption, (iii) if such lease is entered into
with respect to a bona fide research and development project and the
aggregate Financial Indebtedness described in said clause (b) of said
definition under such leases relating to research and development does not
exceed $3,000,000, or (iv) if such sale and leaseback is entered into
within six months of (x) the acquisition date of such property or (y) the
date of completion of any material capital improvement on such property.
6.6 Prohibition on Certain Leases. As lessee, to enter into, or
permit to remain in effect, any agreements to rent or lease any real or
<PAGE> 34
34
personal property (exclusive of Financing Leases) having a remaining
committed term exceeding one year if the aggregate amount of rental
obligations to accrue during any period of twelve consecutive months under
all such agreements to which the Company or any Subsidiary is a party, as
lessee, will exceed the greater of $10,000,000 or 6% of Consolidated
Tangible Net Worth (as at the end of such period).
6.7 No Modification of Insurance and Other Debt. Amend or
modify the terms of any Note Purchase Agreement or any evidence of
indebtedness issued pursuant to any of them in such manner as to accelerate
any maturity of the Insurance and Other Debt or increase the interest rate,
premium, fees or other amounts payable thereon.
SECTION 7. EVENTS OF DEFAULT
Upon the occurrence of any of the following events:
(a) (i) The Company shall fail to pay any principal on any Note
when due in accordance with the terms thereof or hereof on the
maturity date thereof; or (ii) the Company shall fail to pay any
interest on any Note or any fee or other Obligation payable hereunder
when due in accordance with the terms thereof or hereof and such
failure shall continue unremedied for five Business Days; or
(b) Any representation or warranty made or deemed made by the
Company herein or which is contained in any certificate, document or
financial or other statement furnished at any time under or in
connection with this Agreement shall prove to have been incorrect,
false or misleading in any material respect on or as of the date made
or deemed made; or
(c) The Company shall default in the observance or performance
of any agreement contained in Section 6 or in subsection 5.1 or 5.2
and such default in respect of subsection 5.1 or 5.2 shall continue
unremedied for a period of five Business Days; or
(d) The Company shall default in the observance or performance
of any other material agreement contained in this Agreement, and such
default shall continue unremedied for a period of 30 days; or
(e) The Company or any of its Subsidiaries shall (i) default in
any payment of principal of or interest on any of its Financial
Indebtedness (other than the Notes) having a principal amount of at
least $500,000 in the aggregate beyond the period of grace, if any,
provided in the instrument or agreement under which such Financial
Indebtedness was created; or (ii) default in the observance or
performance of any other agreement or condition relating to such
Financial Indebtedness having an unpaid principal amount of at least
$1,000,000 in the aggregate for the Company and its Subsidiaries or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur or condition exist,
<PAGE> 35
35
the effect of which default or other event or condition is to cause,
or to permit the holder or holders of such Financial Indebtedness to
cause, with the giving of notice if required, such Financial
Indebtedness to become due prior to its stated maturity; or
(f)(i) The Company or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law
of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an
order for relief entered with respect to it, or seeking to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other
relief with respect to it or its debts, or (B) seeking appointment of
a receiver, trustee, custodian or other similar official for it or for
all or any substantial part of its assets, or the Company or any such
Subsidiary shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against the Company or any
such Subsidiary any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an
order for relief or any such adjudication or appointment and (B)
remains undismissed, undischarged or unbonded for a period of 60 days;
or (iii) there shall be commenced against the Company or any such
Subsidiary any case, proceeding or other action seeking issuance of a
warrant of attachment, execution, distraint or similar process against
all or any substantial part of its assets which results in the entry
of an order for any such relief which shall not have been vacated,
discharged, or stayed or bonded pending appeal within 60 days from the
entry thereof; or (iv) the Company or any such Subsidiary shall take
any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii),
or (iii) above; or
(g) One or more judgments or decrees shall be entered against
the Company or any of its Subsidiaries involving in the aggregate a
liability of $1,000,000 or more which is not paid or covered by
insurance and all such judgments or decrees (to the extent they
involve aggregate liability of $1,000,000 or more) (i) shall not have
been stayed or bonded pending appeal or (ii) shall not have been
vacated or discharged within 60 days from the entry thereof; or
(h)(i) Any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code)
involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 302 of ERISA) shall exist with respect to any Plan,
(iii) a Reportable Event shall occur with respect to, or proceedings
shall commence to have a trustee appointed, or a trustee shall be
appointed to administer or to terminate, any Single Employer Plan,
which Reportable Event or institution of proceedings is, in the
reasonable opinion of the Agent, likely to result in the termination
of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v)
the Company, any of its Subsidiaries or any Commonly Controlled Entity
shall withdraw from any Multiemployer Plan, or any Multiemployer Plan
to which the Company, any of its Subsidiaries or any Commonly
Controlled Entity contributes shall be terminated or shall be in
Reorganization or shall be Insolvent, or (vi) any other event or
<PAGE> 36
36
condition shall occur or exist; and in each case in clauses (i)
through (vi) above, such event or condition, together with all other
such events or conditions, if any, could subject the Company or any of
its Subsidiaries to any tax, penalty or other liabilities under ERISA
which in the aggregate could be or are material in relation to the
business, operations, property or financial or other condition of the
Company and its Subsidiaries taken as a whole;
then, and in any such event, (A) if such event is an Event of Default
specified in clause (i) or (ii) of paragraph (f) above, automatically the
Commitments shall immediately terminate and the Loans (with accrued
interest thereon), and all other amounts owing under this Agreement and the
Notes shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Majority Banks, the Agent may, or upon
the request of the Majority Banks, the Agent shall, by notice to the
Company declare the Commitments to be terminated forthwith, whereupon the
Commitments shall immediately terminate; and (ii) with the consent of the
Majority Banks, the Agent may, or upon the request of the Majority Banks,
the Agent shall, by notice of default to the Company, declare the Loans
(with accrued interest thereon) and all other amounts owing under this
Agreement and the Notes to be due and payable forthwith, whereupon the same
shall immediately become due and payable. Except as expressly provided
above in this Section, presentment, demand, protest and all other notices
of any kind are hereby expressly waived.
SECTION 8. THE AGENT
8.1 Appointment. Each Bank hereby irrevocably designates and
appoints Chemical Bank as the Agent of such Bank under this Agreement, and
each such Bank irrevocably authorizes Chemical Bank, as the Agent for such
Bank, to take such action on its behalf under the provisions of this
Agreement and to exercise such powers and perform such duties as are
expressly delegated to the Agent by the terms of this Agreement, together
with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement,
the Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Bank,
and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Agreement or otherwise exist against
the Agent.
8.2 Delegation of Duties. The Agent may execute any of its
duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
8.3 Exculpatory Provisions. Neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by
it or such Person under or in connection with this Agreement (except for
its or such Person's own gross negligence or willful misconduct), or (ii)
<PAGE> 37
37
responsible in any manner to any of the Banks for any recitals, statements,
representations or warranties made by the Company or any officer thereof
contained in this Agreement or in any certificate, report, statement or
other document referred to or provided for in, or received by the Agent
under or in connection with, this Agreement or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this
Agreement, the Notes or for any failure of the Company to perform its
obligations hereunder. The Agent shall not be under any obligation to any
Bank to ascertain or to inquire as to the observance or performance by the
Company of any of the agreements contained in, or conditions of, this
Agreement, or to inspect the properties, books or records of the Company.
8.4 Reliance by Agent. The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any Note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram, telegram,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Company), independent accountants and other experts selected by the Agent.
The Agent may deem and treat the payee of any Note as the owner thereof for
all purposes unless (a) a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Agent and (b) the Agent
shall have received the written agreement of such assignee to be bound
hereby as fully and to the same extent as if such assignee were an original
Bank party hereto, in each case in form satisfactory to the Agent. The
Agent shall be fully justified in failing or refusing to take any action
under this Agreement unless it shall first receive such advice or
concurrence of the Required Banks as it deems appropriate or it shall first
be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement and
the Notes in accordance with a request of the Required Banks, and such
request and any action taken or failure to act pursuant thereto shall be
binding upon all the Banks and all future holders of the Notes.
8.5 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Agent has received written notice from a Bank or the
Company referring to this Agreement, describing such Default of Event of
Default and stating that such notice is a "notice of default". In the
event that the Agent receives such a notice, the Agent shall give notice
thereof to the Banks. The Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the
Required Banks except as provided in Article VII; provided, however, that
unless and until the Agent shall have received such directions, the Agent
may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Banks.
8.6 Non-Reliance on Agent and Other Banks. Each Bank expressly
acknowledges that neither the Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any
representation or warranty to it and that no act by the Agent hereinafter
taken, including any review of the affairs of the Company, shall be deemed
<PAGE> 38
38
to constitute any representation or warranty by the Agent to any Bank.
Each Bank represents to the Agent that it has, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Company and made its own decision to
make its Loans hereunder and enter into this Agreement. Each Bank also
represents that it will, independently and without reliance upon the Agent
or any other Bank, and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this
Agreement, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other
condition and creditworthiness of the Company. Except for notices, reports
and other documents expressly required to be furnished to the Banks by the
Agent hereunder, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the
business, operations, property, financial and other condition or
creditworthiness of the Company which may come into the possession of the
Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
8.7 Indemnification. The Banks agree to indemnify the Agent in
its capacity as such (to the extent not reimbursed by the Company and
without limiting the obligation of the Company to do so), ratably according
to their respective Commitment Percentages, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at
any time (including, without limitation, at any time following the payment
of the Notes) be imposed on, incurred by or asserted against the Agent in
any way relating to or arising out of this Agreement, or any documents
contemplated by or referred to herein or the transactions contemplated
hereby or any action taken or omitted by the Agent under or in connection
with any of the foregoing; provided, however, that no Bank shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting solely from the Agent's gross negligence or willful
misconduct. The agreements in this subsection shall survive the
termination of this Agreement and payment of the Notes and all other
amounts payable hereunder.
8.8 Agent in Its Individual Capacity. The Agent and its
Affiliates may make loans to, accept deposits from and generally engage in
any kind of business with the Company as though the Agent were not the
Agent hereunder. With respect to its Loans made or renewed by it and any
Note issued to it, the Agent shall have the same rights and powers under
this Agreement as any Bank and may exercise the same as though it were not
the Agent, and the terms "Bank" and "Banks" shall include the Agent in its
individual capacity.
8.9 Successor Agent. The Agent may resign as Agent upon 10
days' notice to the Company and the Banks. If the Agent shall resign as
Agent under this Agreement, then, the Required Banks shall appoint from
among the Banks a successor agent for the Banks which successor agent shall
be approved by the Company, whereupon such successor agent shall succeed to
the rights, powers and duties of the Agent, and the term "Agent" shall mean
such successor agent effective upon its appointment, and the former Agent's
<PAGE> 39
39
rights, powers and duties as Agent shall be terminated, without any other
or further act or deed on the part of such former Agent or any of the
parties to this Agreement or any holders of the Notes. After any retiring
Agent's resignation hereunder as Agent, the provisions of this subsection
8.9 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Only with the prior written consent
of the Required Banks may the Agent and the Company, from time to time,
enter into written amendments, supplements or modifications hereto for the
purpose of adding any provisions to this Agreement or the Notes or changing
in any manner the rights of the Banks or the Company hereunder or
thereunder, and only with the prior written consent of the Required Banks
may the Agent enter into instruments waiving, on such terms and conditions
as the Agent may specify in such instruments, any of the requirements of
this Agreement or the Notes or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
supplement or modification shall directly (a) extend the maturity of any
Loan, or reduce the rate or extend the time of payment of interest thereon,
or reduce any fee payable to the Banks hereunder, or forgive the principal
amount thereof, or increase the amount of any Bank's Commitment or amend,
modify or waive any provision of this subsection or reduce the percentage
specified in the definition of Required Banks, or consent to the assignment
or transfer by the Company of any of its rights and obligations under this
Agreement, in each case without the written consent of each Bank affected
thereby, or (b) amend, modify or waive any provision of Section 8 without
the written consent of the then Agent. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the
Banks and shall be binding upon the Company, the Banks, the Agent and all
future holders of the Notes. In the case of any waiver, the Company, the
Banks and the Agent shall be restored to their former positions and rights
hereunder and under the Notes, and any Default or Event of Default waived
shall be deemed to be cured and not continuing, but no such waiver shall
extend to any subsequent or other Default or Event of Default, or impair
any right consequent thereon.
9.2 Notices. Except as otherwise provided in Section 2, all
notices, requests and demands to or upon the respective parties hereto to
be effective shall be in writing, and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered by
hand, or when deposited in the mail, postage prepaid, or, in the case of
telegraphic notice, when delivered to the telegraph company, or, in the
case of telex notice, when sent, answerback received, or, in the case of
facsimile transmission, when received, addressed as follows in the case of
the Company and the Agent, and as set forth on the signature pages hereof
in the case of the Banks, or to such other address as may be hereafter
notified by the respective parties hereto and any future holders of the
Notes:
<PAGE> 40
40
The Company: NASHUA CORPORATION
44 Franklin Street
P.O. Box 2002
Nashua, New Hampshire 03061-2002
Telex: 94-3438
Answerback: NASHCORP
Telecopier: (603) 880-5860
Attention: Treasurer
The Agent: Chemical Bank
(For notices pursuant 270 Park Avenue
to subsection 2.2) New York, New York 10017
Attention: Owen Lake
Telecopier: (212) 622-0854
Telephone: (212) 622-0691
provided, however, that any notice, request or demand to or upon the Agent
or the Banks pursuant to subsections 2.1, 2.3, 2.4, 2.5, 2.7 and 2.8 shall
not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Agent or any Bank, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All
representations and warranties made hereunder and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the Notes and
the making of the Loans.
9.5 Payment of Expenses and Taxes. The Company agrees (a) to
pay or reimburse the Agent for all its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation, printing
and execution of, and any amendment, supplement or modification to, this
Agreement and the Notes and any other documents prepared in connection
herewith, and the consummation of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements
of counsel to the Agent, (b) to pay or reimburse each Bank and the Agent for
all its costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the Notes and any such other
documents, including, without limitation, fees and disbursements of counsel
to the Agent and to the several Banks, and (c) on demand, to pay, indemnify,
and hold each Bank and the Agent harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from
any delay in paying, stamp, excise and other taxes, if any, which may be
payable or determined to be payable in connection with the execution and
delivery of, or consummation of any of the transactions contemplated by, or
<PAGE> 41
41
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the Notes and any such other documents, and (d)
to pay, indemnify, and hold each Bank and the Agent harmless from and against
any and all other liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, out-of-pocket costs, expenses or disbursements of
any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the Notes and
any such other documents (all the foregoing, collectively, the "indemnified
liabilities"); provided, however, that the Company shall not have any
obligation hereunder with respect to indemnified liabilities arising from (i)
the gross negligence or willful misconduct of the Agent or any such Bank, (ii)
legal proceedings commenced against any Bank by any security holder or creditor
thereof arising out of and based upon rights afforded such security holder or
creditor solely in its capacity as such or (iii) legal proceedings commenced
against the Agent or any Bank by any other Bank; provided, further, that except
as provided in clause (b) and (d) above, the Company is not obligated to pay
the fees and disbursements of any counsel other than that of the Agent. The
agreements in this subsection shall survive repayment of the Notes and all
other amounts payable hereunder.
9.6 Successors and Assigns; Participations; Purchasing Banks.
(a) This Agreement shall be binding upon and inure to the benefit of the
Company, the Banks, the Agent, all future holders of the Notes and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the
prior written consent of each Bank.
(b) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time sell to one or
more banks or other entities ("Participants") participating interests in any
Loan owing to such Bank, any Note held by such Bank, any Commitment of such
Bank, or any other interest of such Bank hereunder. In the event of any such
sale by a Bank of participating interests to a Participant, such Bank's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the
performance thereof, such Bank shall remain the holder of any such Note for
all purposes under this Agreement, and the Company and the Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. The Company agrees that
if amounts outstanding under this Agreement and the Notes are due and unpaid,
or shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have,
to the extent permitted by applicable law, the right of setoff in respect of
its participating interest in amounts owing under this Agreement and any Note
to the same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement or any Note; provided, that
such right of setoff shall be subject to the obligation of such Participant
to share with the Banks as provided in subsection 9.7. The Company also
agrees that each Participant shall be entitled to the benefits of subsections
2.19, 2.20, 2.21 and 9.5 with respect to its participation in the Commitments
and the Loans outstanding from time to time; provided, that no Participant
shall be entitled to receive any greater amount pursuant to such subsections
than the transferor Bank would have been entitled to receive in respect of
the amount of the participation transferred by such transferor Bank to such
Participant had no such transfer occurred. Each Bank agrees that any
<PAGE> 42
42
agreement between such Bank and any Participant in respect of such
participating interest shall not restrict such Bank's right to agree to any
amendment, supplement or modification to this Credit Agreement except to extend
the final maturity of any Note or reduce the rate or extend the time of payment
of interest thereon or reduce the principal amount thereof or change the fees
as set forth in subsection 2.6 hereof.
(c) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time assign to one or
more banks or other entities ("Bid Loan Assignee") any Bid Loan owing to
such Bank and any Individual Bid Loan Note held by such Bank evidencing such
Bid Loan, pursuant to a Bid Loan Assignment executed by the assignor Bank and
the Assignee. Upon such execution, from and after the Transfer Effective Date
specified in such Bid Loan Assignment, the Bid Loan Assignee shall, to the
extent of the assignment provided for in such Bid Loan Assignment and to the
extent permitted by applicable law, be deemed to have the same rights and
benefits with respect to such Bid Loans and Individual Bid Loan Note and the
same rights of setoff and obligation to share pursuant to subsection 9.7 as it
would have had if it were a Bank hereunder; provided that unless such Bid Loan
Assignment shall otherwise specify and a copy of such Bid Loan Assignment shall
have been delivered to the Agent for its acceptance and recording in the
Register in accordance with subsection 9.6(e), the assignor Bank shall act as
collection agent for the Bid Loan Assignee, and the Agent shall pay all amounts
received from the Company which are allocable to the assigned Bid Loan or Bid
Note directly to the assignor Bank without any further liability to the Bid
Loan Assignee. The Bid Loan Assignee shall not, by virtue of such Bid Loan
Assignment, become a party to this Agreement or have any rights to consent to
or refrain from consenting to any amendment, waiver or other modification of
any provision of this Agreement or any related document; provided that (x) the
assignor Bank and the Bid Loan Assignee may, in their discretion, agree between
themselves upon the manner in which the assignor Bank will exercise its rights
under this Agreement and any related document, and (y) if a copy of such Bid
Loan Assignment shall have been delivered to the Agent for its acceptance and
recording in the Register in accordance with subsection 9.6(f), neither the
principal amount of, the interest rate on, nor the maturity date of any Bid
Loan or Bid Note assigned to a Bid Loan Assignee will be modified without the
written consent of such Bid Loan Assignee.
(d) Any Bank may, in the ordinary course of its commercial banking
business and in accordance with applicable law and with the approval of the
Company, which shall not be unreasonably withheld and upon notice to the
Agent, at any time sell to any Bank or any affiliate thereof, or to any Eligible
Assignee (a "Purchasing Bank") all or any part, in an amount not less than the
lesser of (i) $5,000,000 and (ii) the remainder of the principal amount then
held by such Bank, of its rights and obligations under this Agreement and the
Committed Rate Notes (a "Commitment Assignment") pursuant to a Commitment
Assignment substantially in the form of Exhibit H-2, executed by such
Purchasing Bank, such transferor Bank (and, in the case of a Purchasing Bank
that is not then a Bank or an affiliate thereof, by the Company and the Agent)
and delivered to the Agent for its acceptance and recording in the Register.
Upon such execution, delivery and recording and from and after the Transfer
Effective Date determined pursuant to such Commitment Assignment, (x) the
Purchasing Bank hereunder shall be a party hereto and, to the extent provided
<PAGE> 43
43
in such Commitment Assignment, have the rights and obligations of a Bank
hereunder with a Commitment as set forth therein, and (y) the transferor Bank
thereunder shall, to the extent provided in such Commitment Assignment, be
released from its obligations under this Agreement (and, in the case of a
Commitment Assignment covering all or the remaining portion of a transferor
Bank's rights and obligations under this Agreement, such transferor Bank shall
cease to be a party hereto). Such Commitment Assignment shall be deemed to
amend this Agreement to the extent, and only to the extent, necessary to
reflect the addition of such Purchasing Bank and the resulting adjustment of
Commitment Percentages arising from the purchase by such Purchasing Bank of all
or a portion of the rights and obligations of such transferor Bank under this
Agreement and the Committed Rate Notes. On or prior to the Transfer Effective
Date determined pursuant to such Commitment Assignment, the Company, at its own
expense, shall execute and deliver to the Agent in exchange for the surrendered
Committed Rate Note, to the order of such Purchasing Bank in an amount equal to
the Commitment assumed by it pursuant to such Commitment Assignment and, if the
transferor Bank has retained a Commitment hereunder, a new Committed Rate Note,
to the order of the transferor Bank in an amount equal to the Commitment
retained by it hereunder. Such new Committed Rate Notes, shall be dated the
Closing Date and shall otherwise be in the form of the Notes replaced thereby
and shall be given in substitution and extinguishment of, and not in repayment
of, the Note replaced thereby. The Notes surrendered by the transferor Bank
shall be returned by the Agent to the Company marked "cancelled".
(e) The Agent shall maintain at its address referred to in
subsection 9.2 a copy of each Bid Loan Assignment or Commitment Assignment
delivered to it and a register (the "Register") for the recordation of (i)
the names and addresses of the Banks and the Commitment of, and principal
amount of the Loans owing to, each Bank from time to time, and (ii) with
respect to each Bid Loan Assignment delivered to the Agent, the name and
address of the Bid Loan Assignee and the principal amount of each Bid Loan
owing to such Bid Loan Assignee. The entries in the Register shall be
conclusive, in the absence of manifest error, and the Company, the Agent and
the Banks may treat each Person whose name is recorded in the Register as the
owner of the Loan recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by the Company or any Bank or Bid
Loan Assignee at any reasonable time and from time to time upon reasonable
prior notice.
(f) Upon its receipt of a duly-executed Commitment Assignment,
together with payment to the Agent (by the assignor Bank or the relevant
assignee, as agreed between them) of a registration and processing fee of
$1,000, the Agent shall (i) accept such Commitment Assignment, (ii) record the
information contained therein in the Register and (iii) give prompt notice of
such acceptance and recordation to the assignor Bank, the assignee and the
Company.
(g) The Company authorizes each Bank to disclose to any Participant
or Purchasing Bank (each, a "Transferee") and any prospective Transferee,
subject to the provisions of Section 9.16, any and all information in such
Bank's possession concerning the Company and its Subsidiaries which has been
delivered to such Bank by or on behalf of the Company pursuant to this
<PAGE> 44
44
Agreement or in connection with such Bank's credit evaluation of the Company
and its Subsidiaries prior to becoming a party to this Agreement.
(h) If, pursuant to this subsection, any interest on this Agreement
or any Note is transferred to any Transferee which is organized under the laws
of any jurisdiction other than the United States or any State thereof, the
transferor Bank shall cause such Transferee, concurrently with the
effectiveness of such transfer, (i) to represent to the transferor Bank (for
the benefit of the transferor Bank, the Agent and the Company) that under
applicable law and treaties no taxes will be required to be withheld by the
Agent, the Company or the transferor Bank with respect to any payments to be
made to such Transferee in respect of the Loans, (ii) to furnish to the
transferor Bank, the Agent and the Company either U.S. Internal Revenue
Service Form 4224 or U.S. Internal Revenue Service Form 1001 (wherein such
Transferee claims entitlement to complete exemption from U.S. federal
withholding tax on all interest payments hereunder) and (iii) to agree (for
the benefit of the transferor Bank, the Agent and the Company) to provide the
transferor Bank, the Agent and the Company a new Form 4224 or Form 1001 upon
the expiration or obsolescence of any previously delivered form and comparable
statements in accordance with applicable U.S. laws and regulations and
amendments duly executed and completed by such Transferee, and to comply from
time to time with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
(i) Nothing herein shall prohibit any Bank from pledging or
assigning any Note to any Federal Reserve Bank in accordance with applicable
law.
9.7 Adjustments; Setoff.
(a) Each Bank agrees that if any Bank (a "Benefitted Bank") shall
at any time receive any payment of all or part of its Committed Rate Loans, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by setoff, pursuant to events or proceedings of
the nature referred to in clause (f) of Section 7, or otherwise) in a greater
proportion than any such payment to and collateral received by any other Bank,
if any, in respect of such other Bank's Committed Rate Loans, or interest
thereon, such Benefitted Bank shall purchase for cash from the other Banks
such portion of each such other Bank's Committed Rate Loan, or shall provide
such other Banks with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such Benefitted Bank to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Banks; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered by the Company or any third party
from such Benefitted Bank, such purchase by the other Banks shall be rescinded,
and the purchase price and benefits returned to the Benefitted Bank, to the
extent of such recovery, but without interest. The Company agrees that each
Bank so purchasing a portion of another Bank's Committed Rate Loan may exercise
all rights of payment (including without limitation rights of setoff) with
respect to such portion as fully as if such Bank were the direct holder of such
portion.
(b) In addition to any rights and remedies of the Banks provided by
law (including, without limitation, other rights of setoff), each Bank shall
<PAGE> 45
45
have the right, without prior notice to the Company, any such notice being
expressly waived by the Company to the extent permitted by applicable law, upon
the occurrence and during the continuance of any Event of Default, to set off
and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits,
indebtedness or claims, in any currency, in each case whether direct or
indirect or contingent or matured or unmatured, at any time held or owing by
such Bank to or for the credit or the account of the Company, or any part
thereof in such amounts as such Bank may elect, against and on account of the
obligations and liabilities of the Company to such Bank hereunder and claims of
every nature and description of such Bank against the Company, in any currency,
whether arising hereunder, under the Notes or otherwise, as such Bank may
elect, whether or not such Bank has made any demand for payment and although
such obligations, liabilities and claims may be contingent or unmatured. Each
Bank agrees promptly to notify the Company and the Agent after any such setoff
and application made by such Bank; provided, however, that the failure to
give such notice shall not affect the validity of such setoff and application.
9.8 Independence of Covenants. All covenants hereunder shall be
given independent effect so that if a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant
shall not avoid the occurrence of a Default or Event of Default if such action
is taken or such condition exists.
9.9 Table of Contents and Section Headings. The table of contents
and the Section and subsection headings herein are intended for convenience
only and shall be ignored in construing this Agreement.
9.10 Counterparts. This Agreement may be executed by one or more
of the parties to this Agreement on any number of separate counterparts, and
all of said counterparts taken together shall be deemed to constitute one and
the same instrument. A set of the copies of this Agreement signed by all
the parties shall be lodged with the Company and the Agent.
9.11 Severability. Any provision hereof which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.12 Integration. This Agreement represents the agreement of the
parties hereto with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by any party hereto
relative to the subject matter hereof not expressly set forth or referred to
herein or in the Notes.
9.13 GOVERNING LAW. THIS AGREEMENT AND THE NOTES AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
<PAGE> 46
46
9.14 Submission to Jurisdiction; Waivers. The Company hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating hereto and to the Notes, or for recognition and
enforcement of any judgment in respect thereof, to the nonexclusive
general jurisdiction of the courts of the State of New York, the courts
of the United States of America for the Southern District of New York,
and appellate courts from any thereof,
(b) consents that any such action or proceeding may be brought in
such courts, and waives, to the maximum extent not prohibited by law, any
objection that it may now or hereafter have to the venue of any such
action or proceeding in any such court, or that such action or proceeding
was brought in an inconvenient court, and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form or mail), postage prepaid, to the
Company at its address set forth in subsection 9.2 or at such other address
of which the Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred
to in this subsection any special, exemplary, punitive or consequential
damages.
9.15 Acknowledgments. The Company hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery hereof and of the Notes;
(b) neither the Agent nor any Bank has any fiduciary relationship
to the Company in respect of this Agreement, the Loans and the Notes, and
the relationship between the Agent and the Banks, on one hand, and the
Company, on the other hand, in respect of this Agreement, the Loans and the
Notes is solely that of debtor and creditor; and
(c) no joint venture exists among the Banks or among the Company
and the Banks.
9.16 Confidentiality. Each Bank agrees to keep confidential all
information provided to it by the Company pursuant to this Agreement that is
not included in a report filed by the Company with the Securities and Exchange
Commission; provided that nothing herein shall prevent any Bank from
<PAGE> 47
47
disclosing any such information (i) to the Agent or any other Bank, (ii) to
any Transferee which receives such information and agrees to be bound by these
confidentiality provisions, (iii) to its employees, directors, agents,
attorneys, accountants and other professional advisors, (iv) upon the request
or demand of any Governmental Authority having jurisdiction over such Bank, (v)
in response to any order of any court or other Governmental Authority or as may
otherwise be required pursuant to any Requirement of Law, (vi) which has been
publicly disclosed other than in breach of this Agreement, or (vii) in
connection with the exercise of any remedy hereunder.
9.17 WAIVERS OF JURY TRIAL. THE PARTIES HERETO HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING
RELATING HERETO, OR TO THE NOTES OR ANY OTHER LOAN DOCUMENT, AND FOR ANY
COUNTERCLAIM THEREIN.
<PAGE> 48
48
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered in New York, New York by its proper and duly
authorized officers as of the day and year first above written.
NASHUA CORPORATION
By: /s/ DANIEL M. JUNIUS
-------------------------
Name: Daniel M. Junius
Title: Treasurer
CHEMICAL BANK, as Agent and as a Bank
By: /s/ JEFFREY C. HOWE
-------------------------
Name: Jeffrey C. Howe
Title: Vice President
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ ROBERT E. GALLERY
-------------------------
Name: Robert E. Gallery
Title: Group Executive
BANK OF MONTREAL
By: /s/ JOHN M. DENSON
-------------------------
Name: John M. Denson
Title: Managing Director
<PAGE> 49
<TABLE>
SCHEDULE 1.1
- - - ------------
<CAPTION>
Initial Initial
Commitment Commitment
Amount Percentage
------------ ------------
<S> <C> <C>
Chemical Bank $15,000,000 37.50%
The First National
Bank of Boston $11,500,000 28.75%
Bank of Montreal $13,500,000 33.75%
--------
Totals $40,000,000 100%
</TABLE>
<PAGE> 50
Schedule 3.3
SUBSIDIARIES OF NASHUA CORPORATION
----------------------------------
DOMESTIC INCORPORATED
Nashua Cartridge Products, Inc. (1) Massachusetts
Nashua Commercial Products Corporation (1) Delaware
Nashua International, Inc. (1) Delaware
Nashua Media, Inc. (1) Delaware
Nashua Photo Inc. (1) Delaware
Nashua Photo International Investments, Inc. (2) Delaware
Nashua Photo Licensing Inc. (2) Delaware
Nashua Photo Realty Corporation (2) Delaware
Nashua P.R., Inc. (1) Delaware
Nippon Nashua Incorporated (1) Delaware
Promolink Corporation (1) Delaware
FOREIGN INCORPORATED
Nashua Europe B.V. (1) Netherlands
Nashua FSC Limited (1) Jamaica
Nashua Grafica S/C (1) Brazil
Nashua Nederland B.V. (2) Netherlands
Nashua Photo Limited (2) Canada
Nashua Photo Limited (2) England
Postal Film Services (Country-Wide) Limited (3) England
___________________
(1) Stock held by Nashua Corporation
(2) Stock held by Nashua Photo Inc.
(3) Stock held by Nashua Photo Limited [England]
<PAGE> 51
EXHIBIT A
---------
COMMITTED RATE
--------------
PROMISSORY NOTE
---------------
$__________ New York, New York
July , 1994
FOR VALUE RECEIVED, the undersigned, NASHUA CORPORATION,
hereby unconditionally promises to pay to the order of _______________ (the
"Bank") at the office of Chemical Bank located at 270 Park Avenue, New York,
New York 10017, in lawful money of the United States of America and in
immediately available funds, the principal amount of (a) __________
($__________), or, if less, (b) the aggregate unpaid principal amount of all
Committed Rate Loans made by the Bank to the undersigned pursuant to subsection
2.1 of the "Credit Agreement" hereinafter referred to on the Termination Date
as defined in the Credit Agreement. The undersigned further agrees to pay
interest in like money at such office on the unpaid principal amount hereof
and, to the extent permitted by law, accrued interest in respect hereof from
time to time from the date hereof until payment in full of the principal amount
hereof and accrued interest hereon at the rates and on the dates set forth in
the Credit Agreement.
The holder of this Note is authorized to endorse the date and
amount of each loan pursuant to subsection 2.1 of the Credit Agreement and each
payment of principal with respect thereto and its character as a Eurodollar
Loan or a Reference Rate Loan on the schedule annexed hereto and made a part
hereof, or on a continuation thereof which shall be attached hereto and made a
part hereof, which endorsement shall constitute prima facie evidence of the
accuracy of the information endorsed; provided, however, that the failure to
make any such endorsement shall not affect the obligations of the Company under
this Note.
This Note is one of the Committed Rate Notes referred to in
the Credit Agreement dated as of July , 1994 (as amended, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
undersigned, the Bank, the other banks parties thereto and Chemical Bank, as
Agent, and is entitled to the benefits thereof and is subject to mandatory
prepayment in whole or in part as provided therein.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
this Note shall become, or may be declared to be, immediately due and payable,
all as provided therein.
<PAGE> 52
2
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Terms defined in the Credit Agreement are used herein with
their defined meanings unless otherwise defined herein. This Note shall be
governed by, and construed and interpreted in accordance with, the law of the
State of New York.
NASHUA CORPORATION
By:_________________________
Name:
Title:
<PAGE> 53
<TABLE>
SCHEDULE TO
COMMITTED
RATE NOTE
---------
LOANS AND PAYMENTS OF PRINCIPAL
-------------------------------
<CAPTION>
Date of
Transfer
Date Amount Interest to Indi-
of of Interest Payment Maturity Payment vidual Author-
Loan Loan Rate Dates Date Date Note ization
- - - ---- ------ -------- -------- -------- ------- -------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
</TABLE>
<PAGE> 54
EXHIBIT B
---------
[FORM OF GRID BID LOAN NOTE]
----------------------------
PROMISSORY NOTE
---------------
$40,000,000 New York, New York
July , 1994
FOR VALUE RECEIVED, the undersigned, NASHUA CORPORATION,
hereby unconditionally promises to pay to the order of_________________________
(the "BANK") at the office of Chemical Bank located at 270 Park Avenue, New
York, New York 10017, in lawful money of the United States of America and in
immediately available funds, the principal amount of (a) FORTY MILLION DOLLARS
($40,000,000) or, if less, (b) the aggregate unpaid principal amount of each
Bid Loan which is (i) made by the Bank to the undersigned pursuant to
subsection 2.5 of the Credit Agreement hereinafter referred to and (ii) not
evidenced by an Individual Bid Loan Note executed and delivered by the Company
pursuant to subsection 2.5(b)(vii) of the Credit Agreement. The principal
amount of each Bid Loan evidenced hereby shall be payable on the maturity date
therefor set forth on the schedule annexed hereto and made a part hereof or on
a continuation thereof which shall be attached hereto and made a part hereof
(the "GRID"). The undersigned further agrees to pay interest in like money at
such office on the unpaid principal amount of each Bid Loan evidenced hereby,
at the rate per annum set forth in respect of such Bid Loan on the Grid
calculated on the basis of a year of 360 days and actual days elapsed from the
date of such Bid Loan until the due date thereof (whether at the stated
maturity, by acceleration or otherwise) and thereafter at the rates determined
in accordance with subsection 2.5(e) of the Credit Agreement. Interest on each
Bid Loan evidenced hereby shall be payable on the date or dates set forth in
respect of such Bid Loan on the Grid. Bid Loans evidenced by this Note may not
be prepaid.
The holder of this Note is authorized to endorse on the Grid
the date, amount, interest rate, interest payment dates and maturity date in
respect of each Bid Loan made pursuant to subsection 2.5 of the Credit
Agreement, each payment of principal with respect thereto and any transfer of
such Bid Loan from this Note to an Individual Bid Loan Note delivered to the
Bank pursuant to subsection 2.5(b)(vii) of the Credit Agreement, which
endorsement shall constitute PRIMA FACIE evidence of the accuracy of the
information endorsed; PROVIDED, HOWEVER, that the failure to make any such
endorsement shall not affect the obligations of the Company in respect of such
Bid Loan.
This Note is one of the Grid Bid Loan Notes referred to in the
Credit Agreement, dated as of July , 1994 (as amended, supplemented or
otherwise modified from time to time, the "CREDIT AGREEMENT") among the
undersigned, the Bank, the other banks parties thereto and Chemical Bank, as
Agent, and is entitled to the benefits thereof and is subject to mandatory
prepayment in whole or in part as provided therein.
Upon the occurrence of any one or more of the Events of
Default specified in the Credit Agreement, all amounts then remaining unpaid on
<PAGE> 55
2
this Note shall become, or may be declared to be, immediately due and payable,
all as provided therein.
All parties now and hereafter liable with respect to this
Note, whether maker, principal, surety, guarantor, endorser or otherwise,
hereby waive presentment, demand, protest and all other notices of any kind.
Terms defined in the Credit Agreement are used herein with
their defined meanings unless otherwise defined herein. This Note shall be
governed by, and construed and interpreted in accordance with, the law of the
State of New York.
NASHUA CORPORATION
By:_________________________
Name:
Title:
<PAGE> 56
<TABLE>
SCHEDULE OF BID LOANS
---------------------
<CAPTION>
Date of
Transfer
Date Amount Interest to Indi-
of of Interest Payment Maturity Payment vidual Author-
Loan Loan Rate Dates Date Date Note ization
- - - ---- ------ -------- -------- -------- ------- -------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
____ ______ ________ ________ ________ _______ ________ _______
</TABLE>
<PAGE> 57
EXHIBIT C
---------
[FORM OF INDIVIDUAL BID LOAN NOTE]
NON-NEGOTIABLE BID NOTE
-----------------------
$__________ New York, New York
July __, 1994
FOR VALUE RECEIVED, the undersigned, NASHUA CORPORATION, a
Delaware corporation (the "Company"), hereby promises to pay on ________, 199_
to _______________ at the office of Chemical Bank located at 270 Park Avenue,
New York, New York 10017, in lawful money of the United States of America and
in immediately available funds, the principal sum of __________ Dollars
($__________). The undersigned further agrees to pay interest in like money at
such office on the unpaid principal amount hereof from time to time from the
date hereof at the rate of __% per annum (calculated on the basis of a year of
360 days and actual days elapsed) until the due date hereof (whether at the
stated maturity, by acceleration, or otherwise) and thereafter at the rates
determined in accordance with subsection 2.5(e) of the Credit Agreement, dated
as of July , 1994 (as amended, supplemented or otherwise modified from time
to time, the "Credit Agreement"), among the Company, the Banks parties thereto,
and Chemical Bank, as Agent. Interest shall be payable on __________. This
Note may not be prepaid.
This Note is one of the Bid Notes referred to in, is subject
to and is entitled to the benefits of, the Credit Agreement, which Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the occurrence of any one or more of the Events of Default
specified in the Credit Agreement.
Terms defined in the Credit Agreement are used herein with
their defined meanings unless otherwise defined herein. This Note shall be
governed by and construed in accordance with the laws of the State of New York.
NASHUA CORPORATION
By:_________________________
Name:
Title:
<PAGE> 58
EXHIBIT D
---------
[FORM OF BORROWING NOTICE FOR COMMITTED RATE LOANS]
[Date]
Chemical Bank,
as Agent under the
Credit Agreement referred
to below
Gentlemen:
<TABLE>
Pursuant to subsection 2.3 of the Credit Agreement (as the
same may be amended, supplemented or otherwise modified, the "CREDIT
AGREEMENT") dated as of July , 1994 among NASHUA CORPORATION (the "COMPANY"),
the Banks parties thereto and Chemical Bank, as Agent, the Borrower hereby
requests that the following Committed Rate Loans be made on [date] as follows:
<S> <C> <C>
(1). Total Amount of Committed Rate
Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . $__________
(2). Amount of (1) to be allocated to
Eurodollar Loans . . . . . . . . . . . . . . . . . . . . . . . $__________
(3). Amount of (1) to be allocated to
Reference Rate Loans . . . . . . . . . . . . . . . . . . . . . $__________
(4). Interest Periods and amounts to be allocated thereto
in respect of Eurodollar Loans made on a given
Borrowing Date (amounts must total (2)):
(i) one month . . . . . . . . . . . . . . . . . . . . . . . $__________
(ii) two months . . . . . . . . . . . . . . . . . . . . . . $__________
(iii) three months . . . . . . . . . . . . . . . . . . . . . $__________
(iv) six months . . . . . . . . . . . . . . . . . . . . . . $__________
Total Eurodollar Loans . . . . . . . . . . . . . . . . $__________
</TABLE>
NOTE: EACH AMOUNT APPEARING IN LINES (2) AND (4) ABOVE MUST BE AT
LEAST EQUAL TO $5,000,000 AND IN A WHOLE MULTIPLE OF $1,000,000
<PAGE> 59
2
Terms defined in the Credit Agreement shall have the same
meanings when used herein.
Very truly yours,
NASHUA CORPORATION
By:_________________________
Name:
Title:
<PAGE> 60
EXHIBIT E
---------
[FORM OF BID LOAN REQUEST]
_______________, 19__
Chemical Bank
as Agent
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the Credit Agreement, dated as of July , 1994,
among the undersigned, the Banks named therein and Chemical Bank, as Agent for
such Banks (as the same may be amended, supplemented or otherwise modified, the
"Credit Agreement"). Terms defined in the Credit Agreement are used herein as
therein defined.
<TABLE>
This is a Bid Loan Request pursuant to subsection 2.5 of the Credit
Agreement requesting quotes for the following Bid Loans:
<S> <C> <C> <C>
Aggregate Principal Amount $_______ $_______ $_______
Bid Loan Date _______ _______ _______
Maturity Date _______ _______ _______
Interest Payment Dates _______ _______ _______
</TABLE>
Interest Rate Basis 360 day year
Very truly yours,
NASHUA CORPORATION
By:________________________________
Name:
Title:
__________________
Note: Pursuant to the Credit Agreement, a Bid Loan Request may be
transmitted in writing, by telex or by facsimile transmission, or by
telephone, immediately confirmed by telex or facsimile transmission.
In any case, a Bid Loan Request shall contain the information
specified in the second paragraph of this form.
<PAGE> 61
EXHIBIT F
---------
[FORM OF BID LOAN OFFER]
_______________, 19__
Chemical Bank
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the Credit Agreement, dated as of July , 1994,
among Nashua Corporation, the Banks named therein, and Chemical Bank, as Agent
(as the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein as therein
defined.
In accordance with subsection 2.5 of the Credit Agreement, the
undersigned Bank offers to make Bid Loans thereunder in the following amounts
with the following maturity dates:
Bid Loan Date: __________, 19__
Aggregate Maximum Amount: $__________
<TABLE>
<S> <C> <C>
Maturity Date 1 ___: Maturity Date 2: ___: Maturity Date 3 ___:
- - - --------------- --------------- ---------------
Maximum Amount $___ Maximum Amount $___ Maximum Amount $___
Rate __ Amount $___ Rate __ Amount $___ Rate __ Amount $___
Rate __ Amount $___ Rate __ Amount $___ Rate __ Amount $___
</TABLE>
Very truly yours,
[NAME OF BIDDING BANK]
By:_________________________
Name:
Title:
Telephone No.:
Fax No:
<PAGE> 62
EXHIBIT G
---------
[FORM OF BID LOAN CONFIRMATION]
_______________, 19__
Chemical Bank
270 Park Avenue
New York, New York 10017
Dear Sirs:
Reference is made to the Credit Agreement, dated as of July , 1994,
among the undersigned, the Banks named therein, and Chemical Bank, as Agent (as
the same may be amended, supplemented or otherwise modified, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein as therein
defined.
In accordance with subsection 2.5 of the Credit Agreement, the
undersigned accepts and confirms the offers by Bid Loan Bank(s) to make Bid
Loans to the undersigned on __________, 19__ [Bid Loan Date] under said
subsection 2.5 in the (respective) amount(s) set forth on the attached list of
Bid Loan offered.
Very truly yours,
NASHUA CORPORATION
By:_________________________
Name:
Title:
[Company to attach Bid Loan offer list prepared by Agent with accepted amount
entered by the Company to right of each Bid Loan offer].
<PAGE> 63
EXHIBIT H-1
-----------
[FORM OF BID LOAN ASSIGNMENT]
BID LOAN ASSIGNMENT, dated as of the date set forth
in Item 1 of Schedule I hereto, among the Assignor Bank set forth in Item 2 of
Schedule I hereto (the "ASSIGNOR BANK"), the Bid Loan Assignee set forth in
Item 3 of Schedule I hereto (the "BID LOAN ASSIGNEE"), and Chemical Bank, as
agent for the Banks under the Credit Agreement described below (in such
capacity, the "AGENT").
W I T N E S S E T H :
WHEREAS, this Bid Loan Assignment is being executed
and delivered in accordance with subsection 9.6(c) of the Credit Agreement,
dated as of July , 1994, among Nashua Corporation (the "COMPANY"), the
Assignor Bank and the other Banks party thereto and the Agent (as from time to
time amended, supplemented or otherwise modified in accordance with the terms
thereof, the "CREDIT AGREEMENT"; terms defined therein being used herein as
therein defined); and
WHEREAS, the Assignor Bank has advanced to the
Company the Bid Loan described in Item 4 of Schedule I hereto (the "BID LOAN")
evidenced by the Bid Loan Note described in such Item 4 (the "BID NOTE"), and
the Assignor Bank is assigning the Bid Loan and the Bid Note to the Bid Loan
Assignee pursuant to this Bid Loan Assignment;
NOW, THEREFORE, the parties hereto hereby agree as
follows:
1. The Assignor Bank acknowledges receipt from the Bid
Loan Assignee of an amount equal to the purchase price, as agreed between the
Assignor Bank and the Bid Loan Assignee, of the outstanding principal amount
of, and accrued interest on, the Bid Loan and the Bid Note. The Assignor Bank
hereby irrevocably sells, assigns and transfers to the Bid Loan Assignee
without recourse, representation or warranty, and the Bid Loan Assignee hereby
irrevocably purchases, takes and acquires from the Assignor Bank, the Bid Loan
and the Bid Note, together with all instruments, documents and collateral
security pertaining thereto. The Assignor Bank will deliver the Bid Note to
the Bid Loan Assignee promptly upon its receipt thereof from the Company in
accordance with subsection 2.5 of the Credit Agreement.
2. (a) From and after the date hereof (the "TRANSFER
EFFECTIVE DATE"), principal and interest that would otherwise be payable to or
for the account of the Assignor Bank pursuant to the Bid Loan and the Bid Note
shall, instead, be payable to or for the account of the Bid Loan Assignee,
whether such amounts
<PAGE> 64
2
have accrued prior to the Transfer Effective Date or accrue subsequent to the
Transfer Effective Date.
(b) If Item 5 of Schedule I hereto contains payment
instructions for the Bid Loan Assignee and if the Bid Loan Assignee delivers a
copy of this Bid Loan Assignment to the Agent in accordance with subsection
9.6(e) of the Credit Agreement at least 5 Business Days prior to the due date
of any payment to the Bid Loan Assignee, the Bid Loan Assignee hereby instructs
the Agent to pay all such amounts payable to it pursuant to the provision of
subparagraph (a) of this paragraph 2, in accordance with such payment
instructions. If Item 5 of Schedule I hereto does not contain payment
instructions for the Bid Loan Assignee (or a copy hereof is not delivered to
the Agent as aforesaid), the Assignor Bank and the Bid Loan Assignee agree
that, notwithstanding the provisions of subparagraph (a) of this paragraph 2,
the Assignor Bank is hereby appointed by the Bid Loan Assignee as its
collection agent to receive from the Agent, for and on behalf of and for the
account of the Bid Loan Assignee, all amounts payable to or for the account of
the Bid Loan Assignee under the Bid Loan and the Bid Note; the Assignor Bank
will immediately pay over to the Bid Loan Assignee any such amounts received by
it, in like funds as received.
3. Each of the parties to this Bid Loan Assignment
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Bid Loan Assignment.
4. By executing and delivering this Bid Loan Assignment,
the Assignor Bank and the Bid Loan Assignee confirm to and agree with each
other and the Agent and the Banks as follows: (i) other than the representation
and warranty that it is the legal and beneficial owner of the interest being
assigned hereby free and clear of any adverse claim, the Assignor Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the Notes or any
other instrument or document furnished pursuant thereto; (ii) the Assignor Bank
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Company or the performance or observance by
the Company of any of its obligations under the Credit Agreement, the Notes or
any other instrument or document furnished pursuant hereto; (iii) the Bid Loan
Assignee confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements referred to in subsection 3.1, the
financial statements delivered pursuant to subsection 5.1, if any, and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Bid
<PAGE> 65
3
Loan Assignment; (iv) the Bid Loan Assignee will, independently and without
reliance upon the Agent, the Assignor Bank or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in respect of the Credit Agreement; and (v) the
Bid Loan Assignee appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Credit Agreement as
are delegated to the Agent by the terms thereof, together with such powers as
are reasonably incidental thereto, all in accordance with Section 8 of the
Credit Agreement.
5. If the Bid Loan Assignee is organized under the laws
of any jurisdiction other than the United States or any State thereof, the Bid
Loan Assignee (i) represents to the Assignor Bank (for the benefit of the
Assignor Bank, the Agent and the Company) that under applicable law and
treaties no taxes will be required to be withheld by the Agent, the Company or
the Assignor Bank with respect to any payments to be made to the Bid Loan
Assignee in respect of the Bid Loan, (ii) will furnish to the Assignor Bank,
the Agent and the Company, on or prior to the Transfer Effective Date, (x)
either U.S. Internal Revenue Service Form 4224 or U.S. Internal Revenue Service
Form 1001 or successor applicable form, as the case may be, certifying in each
case that the Bid Loan Assignee is entitled to receive payments under the Bid
Loan without deduction or withholding of any United States federal income
taxes, and (y) an Internal Revenue Service Form W-8 or W-9 or successor
applicable form, as the case may be, to establish an exemption from United
States backup withholding taxes, and (iii) agrees (for the benefit of the
Assignor Bank, the Agent and the Company) to provide the Assignor Bank, the
Agent and the Company a new Form 4224 or Form 1001 and Form W-8 or W-9, or
successor applicable forms, or other manner of certification, as the case may
be, on or before the date that any such letter or form expires or becomes
obsolete or after the occurrence of any event requiring a change in the most
recent letter and form previously delivered by it to the Company, and such
extensions or renewals thereof as may reasonably be requested by the Company,
certifying in the case of a Form 1001 or 4224 that such Bid Loan Assignee is
entitled to receive payments under the Bid Loan without deduction or
withholding of any United States federal income taxes, unless in any such cases
an event (including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent the Bid Loan Assignee from duly completing and delivering any such
letter or form with respect to it and such Bid Loan Assignee advises the
Assignor Bank, the Agent and the Company that it is not capable of receiving
payments without any deduction or withholding of United States federal income
tax, and in the case of a Form W-8 or W-9, establishing an exemption from
United States backup withholding tax.
<PAGE> 66
4
6. This Bid Loan Assignment shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused
this Bid Loan Assignment to be executed by their respective duly authorized
officers on Schedule I hereto as of the date set forth in Item 1 of Schedule I
hereto.
<PAGE> 67
<TABLE>
<CAPTION>
SCHEDULE I TO
BID LOAN
ASSIGNMENT
-------------
<S> <C> <C>
Item 1 (Date of Assignment): [Insert date of Assignment]
Item 2 (Assignor Bank): [Insert name of Assignor Bank]
Item 3 (Assignee): [Insert name, address, telephone and telex numbers and name of
contact party of Assignee]
</TABLE>
Item 4 (Description of Loans):
a. Date of Loans and Note:
b. Principal Amounts of Loans and Note:
Item 5 (Payment Instructions): [Complete only if payments are to be
made by Agent to Assignee rather
than to Assignor Bank as collection
agent for Assignee; leave blank if
Assignor Bank is to act as such
collection agent]
Item 6 (Signatures): ______________________, as
Assignor Bank
By:_________________________
Title:
______________________, as
Assignee
By:_________________________
Title:
ACCEPTED FOR RECORDATION
IN REGISTER:
CHEMICAL BANK, as Agent
By:_________________________
Title:
<PAGE> 68
EXHIBIT H-2
-----------
[FORM OF COMMITMENT ASSIGNMENT]
COMMITMENT ASSIGNMENT
---------------------
COMMITMENT ASSIGNMENT, dated as of the date set forth in Item
1 of Schedule I hereto, among the Assignor Bank set forth in Item 2 of Schedule
I hereto (the "ASSIGNOR BANK"), the Assignee set forth in Item 3 of Schedule I
hereto (the "ASSIGNEE"), and Chemical Bank, as agent for the Banks under the
Credit Agreement described below (in such capacity, the "AGENT").
W I T N E S E T H :
WHEREAS, this Commitment Assignment is being executed and
delivered in accordance with subsection 9.6(d) of the Credit Agreement, dated
as of July , 1994, among Nashua Corporation (the "COMPANY"), the Assignor
Bank and the other Banks party thereto and the Agent (as from time to time
amended, supplemented or otherwise modified in accordance with the terms
thereof, the "CREDIT AGREEMENT"; terms defined therein being used herein as
therein defined); and
WHEREAS, the Assignor Bank has advanced to the Company the
Committed Rate Loan described in Item 4 of Schedule I hereto (the "LOANS")
evidenced by the Committed Rate Note, described in such Item 4 (the "NOTE"),
and the Assignor Bank is assigning the Loan and the Note to the Committed Rate
Assignee pursuant to this Commitment Assignment;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. The Assignor Bank acknowledges receipt from the
Assignee of an amount equal to the purchase price, as agreed between the
Assignor Bank and the Assignee, of the outstanding principal amount of, and
accrued interest on, the Loans and the Note. The Assignor Bank hereby
irrevocably sells, assigns and transfers to the Assignee without recourse,
representation or warranty, and the Assignee hereby irrevocably purchases,
takes and acquires from the Assignor Bank, the Loans and the Note, together
with all instruments, documents and collateral security pertaining thereto.
The Assignor Bank will deliver the Note to the Assignee promptly upon its
receipt thereof from the Company.
2. (a) From and after the date hereof (the "TRANSFER
EFFECTIVE DATE"), principal and interest that would otherwise be payable to or
for the account of the Assignor Bank pursuant to the Loans and the Note shall,
instead, be payable to or for the
<PAGE> 69
2
account of the Assignee, whether such amounts have accrued prior to the
Transfer Effective Date or accrue subsequent to the Transfer Effective Date.
(b) If Item 5 of Schedule I hereto contains payment
instructions for the Assignee and if the Assignee delivers a copy of this
Commitment Assignment to the Agent in accordance with subsection 9.6(e) of the
Credit Agreement at least 5 Business Days prior to the due date of any payment
to the Assignee, the Assignee hereby instructs the Agent to pay all such
amounts payable to it pursuant to the provision of subparagraph (a) of this
paragraph 2, in accordance with such payment instructions. If Item 5 of
Schedule I hereto does not contain payment instructions for the Assignee (or a
copy hereof is not delivered to the Agent as aforesaid), the Assignor Bank and
the Assignee agree that, notwithstanding the provisions of subparagraph (a) of
this paragraph 2, the Assignor Bank is hereby appointed by the Assignee as its
collection agent to receive from the Agent, for and on behalf of and for the
account of the Assignee, all amounts payable to or for the account of the
Assignee under the Loan and the Note; the Assignor Bank will immediately pay
over to the Assignee any such amounts received by it, in like funds as
received.
3. Each of the parties to this Commitment Assignment
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Commitment Assignment.
4. By executing and delivering this Commitment
Assignment, the Assignor Bank and the Assignee confirm to and agree with each
other and the Agent and the Banks as follows: (i) other than the representation
and warranty that it is the legal and beneficial owner of the interest being
assigned hereby free and clear of any adverse claim, the Assignor Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the Notes or any
other instrument or document furnished pursuant thereto; (ii) the Assignor Bank
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Company or the performance or observance by
the Company of any of its obligations under the Credit Agreement, the Notes or
any other instrument or document furnished pursuant hereto; (iii) the Assignee
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements referred to in subsection 3.1, the financial
statements delivered pursuant to subsection 5.1, if any, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Commitment Assignment;
<PAGE> 70
3
(iv) the Assignee will, independently and without reliance upon the Agent, the
Assignor Bank or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in respect of the Credit Agreement; and (v) the Assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement as are delegated to the Agent by the
terms thereof, together with such powers as are reasonably incidental thereto,
all in accordance with Section 8 of the Credit Agreement.
5. If the Assignee is organized under the laws of any
jurisdiction other than the United States or any State thereof, the Assignee
(i) represents to the Assignor Bank (for the benefit of the Assignor Bank, the
Agent and the Company) that under applicable law and treaties no taxes will be
required to be withheld by the Agent, the Company or the Assignor Bank with
respect to any payments to be made to the Assignee in respect of the Loans,
(ii) will furnish to the Assignor Bank, the Agent and the Company, on or prior
to the Transfer Effective Date, (x) either U.S. Internal Revenue Service Form
4224 or U.S. Internal Revenue Service Form 1001 or successor applicable form,
as the case may be, certifying in each case that the Assignee is entitled to
receive payments under the Committed Rate Loan without deduction or withholding
of any United States federal income taxes, and (y) an Internal Revenue Service
Form W-8 or W-9 or successor applicable form, as the case may be, to establish
an exemption from United States backup withholding taxes, and (iii) agrees (for
the benefit of the Assignor Bank, the Agent and the Company) to provide the
Assignor Bank, the Agent and the Company a new Form 4224 or Form 1001 and Form
W-8 or W-9, or successor applicable forms, or other manner of certification, as
the case may be, on or before the date that any such letter or form expires or
becomes obsolete or after the occurrence of any event requiring a change in the
most recent letter and form previously delivered by it to the Company, and such
extensions or renewals thereof as may reasonably be requested by the Company,
certifying in the case of a Form 1001 or 4224 that such Assignee is entitled to
receive payments under the Loans without deduction or withholding of any United
States federal income taxes, unless in any such cases an event (including,
without limitation, any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent the Bid Loan
Assignee from duly completing and delivering any such letter or form with
respect to it and such Assignee advises the Assignor Bank, the Agent and the
Company that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax, and in the case of a Form W-8
or W-9, establishing an exemption from United States backup withholding tax.
<PAGE> 71
4
6. THIS COMMITMENT ASSIGNMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Commitment Assignment to be executed by their respective duly authorized
officers on Schedule I hereto as of the date set forth in Item 1 of Schedule I
hereto.
<PAGE> 72
<TABLE>
<CAPTION>
SCHEDULE I TO
COMMITMENT
ASSIGNMENT
-------------
<S> <C> <C>
Item 1 (Date of Assignment): [Insert date of Assignment]
Item 2 (Assignor Bank): [Insert name of Assignor Bank]
Item 3 (Assignee): [Insert name, address, telephone and telex numbers and name of
contact party of Assignee]
Item 4 (Description of Loans):
</TABLE>
a. Date of Loans and Note:
b. Principal Amounts of Loans and Note:
Item 5 (Payment Instructions): [Complete only if payments are to be
made by Agent to Assignee rather than
to Assignor Bank as collection agent
for Assignee; leave blank if Assignor
Bank is to act as such collection agent]
Item 6 (Signatures):
______________________, as
Assignor Bank
By:_________________________
Title:
______________________, as
Assignee
By:_________________________
Title:
<PAGE> 73
2
ACCEPTED FOR RECORDATION
IN REGISTER:
CHEMICAL BANK, as Agent
By:_________________________
Title:
CONSENTED TO:
NASHUA CORPORATION
By:____________________________________
Title:
<PAGE> 74
EXHIBIT I
---------
[FORM OF OFFICER'S CERTIFICATE]
OFFICER'S CERTIFICATE
---------------------
Pursuant to Section 4 of the Credit Agreement (the "CREDIT
AGREEMENT"), dated as of July , 1994 among Nashua Corporation (the
"COMPANY"), Chemical Bank, as Agent, and the banks parties thereto, the
undersigned of the Company hereby certifies as follows:
1. The representations and warranties of the Company
set forth in the Credit Agreement or which are contained in any
certificate, document or financial or other statement furnished
pursuant to or in connection with the Credit Agreement are true and
correct on and as of the date hereof with the same effect as if made
on the date hereof; and
2. On the date hereof, no Default or Event of Default
(both as defined in the Credit Agreement) has occurred and is
continuing or will occur after giving effect to the Loans to be made
on the date hereof under the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has hereunto set his name.
NASHUA CORPORATION
By:_________________________
Name:
Title:
Date: July , 1994
<PAGE> 75
EXHIBIT J
---------
[Form of Certificate of Secretary of the Company]
SECRETARY'S CERTIFICATE
-----------------------
I, [ ], hereby certify that:
1. I am the Secretary of Nashua Corporation, a Delaware
corporation.
2. Attached hereto as Annex I is a true and complete
copy of a vote adopted by the Board of Directors of the said corporation on
________ ___, 1994, which vote has not been altered, amended or rescinded.
3. Attached hereto as Annex II is a true and complete
copy of the Composite Certificate of Incorporation of the said corporation as
in effect on the date hereof.
4. Attached hereto as Annex III is a true and complete
copy of the By-Laws of the said corporation as in effect at all times
since__________.
5. The following person has been duly elected to, and
has qualified for, and on the date hereof does hold, the office set forth below
opposite his name; and that the signature appearing opposite his name is his
true and genuine signature.
Name Office
---- ------
_______________
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
the seal of the said corporation this ___ day of July 1994.
__________________________
[ ]
The undersigned, [insert title ] of Nashua
Corporation, does hereby certify that [insert name of Secretary]
<PAGE> 76
2
is the duly qualified and acting Secretary of Nashua Corporation and that the
signature set forth directly above is his true signature.
_____________________________________
[ ]
July __, 1994
<PAGE> 77
Exhibit K
July , 1994
To the Banks Party to the Credit Agreement
Referred to Below and Chemical Bank,
as Agent for such Banks
Re: Nashua Corporation
Gentlemen:
I am the Secretary and Counsel of Nashua Corporation, a Delaware corporation
(the "Company"), and I have participated in the preparation, execution and
delivery of the Credit Agreement, dated of even date herewith (the "Credit
Agreement"), among the Company, the banks party thereto (the "Banks") and
Chemical Bank, as agent for the Banks. This opinion is being delivered to you
pursuant to Section 4.1(e) of the Credit Agreement. Capitalized terms used
herein without definition shall have the respective meanings given them in the
Credit Agreement.
In connection with this opinion, I have reviewed executed copies of the
following described documents:
1. the Credit Agreement;
2. the three Committed Rate Notes dated the date hereof;
3. the three Grid Bid Loan Notes dated the date hereof;
4. a Certificate of the Secretary of State of Delaware regarding the legal
existence and good standing of the Company in Delaware; and
5. copies of (i) the Composite Certificate of Incorporation of the
Company, (ii) the bylaws of the Company and (iii) the resolutions
adopted by the Board of Directors of the Company authorizing the
execution and delivery of the Credit Agreement, the Notes and the
transactions contemplated thereby.
<PAGE> 78
- 2 -
The three Committed Rate Notes and the three Grid Bid Loan Notes described
above are collectively referred to herein as the "Notes". I have also
examined and relied upon originals or copies, certified or otherwise
identified to my satisfaction, of such other corporate and public records and
agreements, instruments, certificates and other documents as I have deemed
necessary or appropriate for the purposes of this opinion.
I have assumed the genuineness of all signatures (other than signatures on
behalf of the Company), the conformity to the originals of all documents
reviewed by me as copies, the authenticity and completeness of all
original documents reviewed by me in original or copy form and the legal
competence of each individual executing any document.
I understand that all of the foregoing assumptions and limitations are
acceptable to you.
Each opinion set forth below relating to the enforceability of any agreement or
instrument against the Company is further subject to the following general
qualifications:
(i) as to any instrument delivered by the Company, I assume that
the Company has received the agreed to consideration therefor;
(ii) as to any agreement to which the Company is a party, I assume
that such agreement is the binding obligation of each other
party thereto;
(iii) the enforceability of any obligation of the Company may be
limited by bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws and rules of
law affecting the enforcement generally of creditors' rights
and remedies (including such as may deny giving effect to
waivers of debtors' or guarantors' rights);
(iv) no opinion is given herein as to the enforceability of any
provision of the Credit Agreement or any Note relating to the
consent to jurisdiction of a court over any legal proceeding
relating to the Credit Agreement or the Notes, waiver of jury
trial or counterclaims, or indemnities, or as to the
availability of specific performance or other equitable relief
of any kind; and
(v) the enforcement of any of the Agent's or Bank's rights may in
all cases be subject to an implied duty of good faith and to
general principles of equity (regardless of whether such
enforceability is considered in a proceeding at law or in
equity).
<PAGE> 79
- 3 -
Subject to the limitations set forth below, I have made such examination of
law as I have deemed necessary for the purposes of this opinion. This opinion
is limited solely to the laws of the State of New Hampshire as applied by
courts located in New Hampshire, the Federal laws of the United States of
America, and the General Corporation Law of the State of Delaware (the
"Delaware GCL"), to the extent that the same may apply to or govern the
transactions contemplated by the Credit Agreement and the Note. I call to your
attention, however, that each of the Credit Agreement and the Notes provides
that it is governed by the laws of the State of New York. To the extent that
the Credit Agreement and the Notes are governed by New York law, in giving my
opinion that the Credit Agreement and the Notes are enforceable against the
Company in accordance with their terms, I have assumed that the New York law
applicable thereto is identical to New Hampshire law. No opinion is given
herein as to the choice of law or choice of internal substantive rules of law
which any tribunal may apply to the transactions referred to herein.
Based on the foregoing, and subject to the qualifications set forth above, I
am of the opinion that:
1. The Company and each of its Subsidiaries is a corporation validly
existing and in corporate good standing under the laws of its
jurisdiction of incorporation and has all corporate power and
authority to carry on the business in which it is currently engaged
and to own its properties and assets. The Company is qualified to
do business as a foreign corporation in the State of New Hampshire.
To the best of my knowledge, the Company and each of its
Subsidiaries is in compliance with all Requirements of Law, except
to the extent that the failure to comply therewith would not be
reasonably likely to have a material adverse effect on the
business, operations, property or financial or other condition of
the Company and its Subsidiaries taken as a whole.
2. The Company has all requisite corporate power and authority to
execute and deliver the Credit Agreement and the Notes, and to
perform its obligations set forth in each of the Credit Agreement
and the Notes.
3. Each of the Credit Agreement and the Notes has been duly authorized
by all necessary corporate action on the part of the Company, has
been executed and delivered by duly authorized officers of the
Company, and constitutes the legal, valid and binding obligation of
the Company, enforceable against the Company in accordance with
its terms.
<PAGE> 80
- 4 -
4. The execution and delivery of the Credit Agreement and the Notes by
the Company and the performance by the Company of its obligations
thereunder will not contravene its certificate of incorporation or
by-laws, or violate any applicable federal, including without
limitation the provisions of Regulations G, T, U and X of the Board
of Governors of the Federal Reserve System, or New Hampshire statute
or the Delaware GCL or, to the best of my knowledge, any Contractual
Obligation of the Company or any of its Subsidiaries.
5. No consent, approval or authorization of, or filing, declaration or
registration with, any federal or New Hampshire governmental
authority is required on the part of the Company in connection with
the execution and delivery or performance of each of the Credit
Agreement and the Notes or the borrowings thereunder.
6. No litigation, investigation or proceeding of or before any
arbitrator or Governmental Authority is pending or, to the best of
my knowledge, threatened by or against the Company or any of its
Subsidiaries or against any of its or their respective properties
or revenues (a) with respect to the Credit Agreement or the Notes
or any Loan or any of the transactions contemplated thereby, or
(b) which has any reasonable likelihood of having a material
adverse effect on the business, operations, property or financial
or other condition of the Company and its Subsidiaries taken as a
whole.
7. The Company is not an "investment company", or a company
"controlled" by an "investment company", within the meaning of the
Investment Company Act of 1940, as amended.
8. To the best of my knowledge, neither the Company nor any of its
Subsidiaries is in default under or with respect to any of its
Contractual Obligations in any respect which could be materially
adverse to the business, operations, property or financial or other
condition of the Company and its Subsidiaries taken as a whole.
This opinion has been delivered solely for your use in connection with the
transactions contemplated by the Credit Agreement and may not be referred to or
used for any other purpose or relied upon by any other person. This opinion is
given only as of the date hereof and I undertake no obligation to inform you
of additional facts that may subsequently come to my attention or subsequent
changes in law.
Very truly yours,
Paul Buffum
Secretary and Counsel
<PAGE> 81
July , 1994
EXHIBIT L
---------
[FORM OF EXTENSION REQUEST]
_______________, ____
Chemical Bank, as Agent
270 Park Avenue
New York, New York 10017
Attention: ________________________
Dear Sirs:
Reference is made to the $40,000,000 Credit Agreement, dated
as of July ___, 1994 among Nashua Corporation, the Banks parties thereto and
Chemical Bank, as Agent. Terms defined in the Credit Agreement are used herein
as therein defined.
This is an Extension Request pursuant to subsection 2.20 of
the Credit Agreement requesting an extension of the Termination Date to
[requested Termination Date]. Please transmit a copy of this Extension Request
to each of the Banks.
Very truly yours,
NASHUA CORPORATION
By:_____________________
Name:
Title:
CHEMICAL BANK
By:_____________________
Name:
Title:
