<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 12b-25
Commission File Number 0-11618
NOTIFICATION OF LATE FILING
(Check One): [__] Form 10-K {__] Form 11-K {__} Form 20-F {X} Form 10-Q
{___} Form N-SAR
For Period Ended: JUNE 30, 1995
--------------------------------------------------------------
{__] Transition Report on Form 10-K {___} Transition Report on Form 10-Q
{__] Transition Report on Form 20-K {___} Transition Report on Form N-SAR
{__] Transition Report on Form 11-K
For the Transition Period Ended:________________________________________________
Nothing in this form shall be construed to imply that the Commission has
verified any information contained herein.
If the notification relates to a portion of the filing checked above,
identify the Item(s) to which the notification
relates:________________________________________________________________________
________________________________________________________________________________
PART I. REGISTRANT INFORMATION
Full name of registrant: HPSC, INC.
-------------------------------------------------------
Former name if applicable:
________________________________________________________________________________
Address of Principal executive office (Street and number)
60 STATE STREET
--------------------------------------------------------------------------------
City, State and Zip Code: BOSTON, MASSACHUSETTS 02109
------------------------------------------------------
PART II. RULE 12B-25 (B) AND (C)
If the subject report could not be filed without unreasonable effort or
expense and the registrant seeks relief pursuant to Rule 12b-25(b), the
following should be completed. (Check appropriate box.)
[X] (a) The reasons described in reasonable detail in Part III of this form
- could not be eliminated without unreasonable effort or expense;
[X] (b) The subject annual report, semi-annual report, transition report on
-- Form 10-K, 20-F, 11-K or Form N-SAR, or portion thereof will be filed on or
before the 15th calendar day following the prescribed due date; or the
subject quarterly report or transition report on Form 10-Q, or portion
thereof will be filed on or before the fifth calendar day following the
prescribed due date; and
[_] (c) The accountant's statement or other exhibit required by Rule 12b-25(c)
has been attached if applicable.
<PAGE>
PART III. NARRATIVE
State below in reasonable detail the reasons why Form 10-K, 11-K, 20-F, 10-
Q, N-SAR or the transition report portion thereof could not be filed within the
prescribed time period. (Attach extra sheets if needed.)
Registrant was provided by counsel with Exhibit 10.5 on a disk which
Registrant supplied to Merrill for conversion to EDGAR format and transmission
to SEC. Disk was found to be downloaded improperly. By the time Registrant was
notified and obtained a new disk containing Exhibit 10.5, there was not
sufficient time to convert the disk to the EDGAR format and transmit to the SEC
to meet the filing deadline.
PART IV. OTHER INFORMATION
(1) Name and telephone number of person to contact in regard to this
notification
VERONICA D. JARLIS (617) 428-3000
---------------------------------------------------------------------------
(Name) (Area Code) (Telephone number)
(2) Have all other periodic reports required under Section 13 or 15(d) of
the Securities Exchange Act of 1934 or Section 30 of the Investment Company Act
of 1940 during the preceding 12 months or for such shorter period that the
registrant was required to file such report(s) been filed? If the answer is no,
identify report(s).
[X] Yes [__] No
--
(3) Is it anticipated that any significant change in results of operations
from the corresponding period for the last fiscal year will be reflected by the
earnings statements to be included in the subject report or portion thereof?
[__] Yes [X] No
--
If so: attach an explanation of the anticipated change, both narratively
and quantitatively, and, if appropriate, state the reasons why a reasonable
estimate of the results cannot be made.
HPSC, INC.
------------------------------------------------------------------------------
(Name of registrant as specified in charter)
Has caused this notification to be signed on its behalf by the undersigned
thereunto duly authorized.
Date: AUGUST 15, 1995 By: /s/ Rene Lefebvre
--------------------- ----------------------------------------------
Vice President and Chief Financial Officer
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
(Mark One)
/X/ QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
AND EXCHANGE ACT OF 1934
For the quarterly period ended JUNE 30, 1995
-------------------------------------------------
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
AND EXCHANGE ACT OF 1934
For the transition period from ___________________ to ___________________
Commission file number 0-11618
-------
HPSC, Inc.
--------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 04-2560004
------------------------------------- --------------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
60 STATE STREET, BOSTON, MASSACHUSETTS 02109
--------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 720-3600
------------------------
NONE
--------------------------------------------------------------------------------
(Former name, former address, and former
fiscal year if changed since last report)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities and 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 _________
APPLICABLE ONLY TO CORPORATE ISSUERS
Indicate the number of shares outstanding of each of the issuer's classes of
common stock as of the latest practicable date: COMMON STOCK, PAR VALUE $.01
PER SHARE. SHARES OUTSTANDING AT AUGUST 1, 1995, 5,574,712.
<PAGE>
HPSC, INC.
INDEX
PART 1 -- FINANCIAL INFORMATION PAGE
Consolidated Balance Sheets as of June 30, 1995, and
December 31, 1994.................................... 3
Consolidated Statements of Income for each of the three
and six months ended June 30, 1995 and June 25, 4
1994.................................................
Consolidated statements of Cash Flows for each of the
three and six months ended June 30, 1995 and June 25, 5
1994 ................................................
Notes to Consolidated Financial 6
Statements...........................................
Management's Discussion and Analysis of Financial
Condition and Results of Operations.................. 7-8
PART II -- OTHER INFORMATION
Signatures .......................................... 9
Exhibits 10
2
<PAGE>
HPSC, INC.
CONSOLIDATED BALANCE SHEETS
(in thousands, except share amounts)
(unaudited)
<TABLE>
<CAPTION>
ASSETS
------
June 30, December 31,
1995 1994
----------- ------------
<S> <C> <C>
CASH AND CASH EQUIVALENTS $ 744 $ 419
RESTRICTED CASH 6,428 7,936
INVESTMENT IN LEASES AND NOTES:
Lease contracts receivable and notes receivable due in installments 115,515 103,531
Estimated residual value of equipment at end of lease term 9,197 9,321
Less unearned income (19,950) (16,924)
Less allowance for losses (4,540) (4,595)
Less security deposits (2,954) (2,639)
Deferred origination costs 2,899 2,499
--------- ---------
Net investment in leases and notes 100,167 91,193
--------- ---------
OTHER ASSETS:
Deferred expense and other assets 2,806 2,154
Refundable income taxes 496 1,446
--------- ---------
TOTAL ASSETS $ 110,641 $ 103,148
--------- ---------
--------- ---------
LIABILITIES AND STOCKHOLDERS' EQUITY
------------------------------------
NOTES PAYABLE TO BANKS $ 23,496 $ 16,500
NOTES PAYABLE - TREASURY STOCK PURCHASE 750 4,500
ACCOUNTS PAYABLE 2,582 2,450
ACCRUED INTEREST 345 293
INCOME TAXES:
Currently payable 511 20
Deferred 4,527 5,539
SENIOR NOTES 45,274 41,024
--------- ---------
TOTAL LIABILITIES $ 77,485 $ 70,326
--------- ---------
--------- ---------
STOCKHOLDERS' EQUITY:
PREFERRED STOCK, $1.00 par value;
authorized 5,000,000 shares; issued - None - -
COMMON STOCK, $.01 par value; 15,000,000 shares authorized;
issued and outstanding 5,574,712 shares in 1995 and
5,574,395 shares in 1994 56 56
TREASURY STOCK (at cost) 1,225,182 shares (5,023) (5,023)
Additional paid-in capital 15,916 15,916
Retained earnings 24,824 24,601
Cumulative foreign currency translation adjustments (519) (552)
--------- ----------
35,254 34,998
Less deferred ESOP and SESOP compensation (2,098) (2,176)
--------- ----------
Total Stockholders' Equity 33,156 32,822
--------- ---------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 110,641 $ 103,148
--------- ---------
--------- ---------
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED FINANCIAL
STATEMENTS.
3
<PAGE>
HPSC, INC.
CONSOLIDATED STATEMENTS OF INCOME
FOR EACH OF THE THREE AND SIX MONTHS ENDED JUNE 30, 1995 AND JUNE 25, 1994
(in thousands, except per share and share amounts)
(unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED SIX MONTHS ENDED
------------------ ----------------
June 30, June 25, June 30, June 25,
1995 1994 1995 1994
-------- -------- -------- --------
<S> <C> <C> <C> <C>
REVENUES:
Earned Income on Leases and notes $ 3,203 $ 3,062 $ 6,147 $ 6,667
Provisions for losses (264) (204) (541) (360)
---------- ----------- ---------- -----------
Net Revenues 2,939 2,858 5,606 6,307
--------- ---------- --------- ----------
EXPENSES:
Selling, general and administrative 1,520 1,734 3,000 3,532
Interest, net 1,195 895 2,239 2,206
--------- ---------- --------- ----------
Total expenses 2,715 2,629 5,239 5,738
--------- ---------- --------- ----------
INCOME BEFORE INCOME TAXES: 224 229 367 569
--------- ---------- --------- ----------
PROVISION FOR INCOME TAXES:
Federal, Foreign and State:
Current 506 560 1,156 1,258
Deferred (418) (470) (1,012) (1,035)
--------- ----------- ---------- -----------
TOTAL INCOME TAXES 88 90 144 223
--------- ---------- --------- ----------
NET INCOME $ 136 $ 139 $ 223 $ 346
--------- ---------- --------- ----------
--------- ---------- --------- ----------
NET INCOME PER SHARE $ .04 $ .03 $ .06 $ .07
--------- ---------- --------- ----------
--------- ---------- --------- ----------
SHARES USED TO COMPUTE
INCOME PER SHARE 3,838,116 4,962,959 3,830,185 4,980,338
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED
FINANCIAL STATEMENTS.
4
<PAGE>
HPSC, INC.
CONSOLIDATED STATEMENTS OF CASH FLOW
FOR EACH OF THE SIX MONTHS ENDED JUNE 30, 1995 AND JUNE 25, 1994
(in thousands)
(unaudited)
<TABLE>
<CAPTION>
June 30, June 25,
1995 1994
-------- --------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net Income $ 223 $ 346
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization 272 222
Deferred income taxes (1,012) (1,035)
Provision for losses on lease contracts
and notes receivable 541 360
Increase (decrease) in accrued interest 52 (3,147)
Increase (decrease) in accounts payable 132 (709)
Increase (decrease) in accrued income taxes 491 (21)
Decrease in refundable income taxes 950 1,505
(Increase)decrease in other assets (531) 799
--------- --------
Cash provided by (used in) operating activities 1,118 (1,680)
-------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (117) (320)
Lease contracts receivable and notes receivable (12,578) 15,481
Estimated residual value of equipment 124 1,573
Unearned income 3,026 (4,292)
Security deposits 315 (149)
Deferred origination costs (400) 384
--------- --------
Cash (used in) provided by investing activities (9,630) 12,677
CASH FLOWS FROM FINANCING ACTIVITIES:
Repayment of Senior Notes (11,832) (65,012)
Repayments of Subordinated Debt --- (20,000)
Repayment of notes payable to banks --- (2,310)
Repayment of notes payable treasury stock purchase (3,750) ---
Proceeds from issuance of Senior Notes 16,082 70,000
Proceeds from revolving notes payable to banks 6,996 ---
Decrease (increase) in restricted funds 1,508 (9,153)
Debt issuance costs (310) (918)
Contribution to Employee Stock Ownership Plan 110 99
Other 33 (148)
-------- ---------
Cash provided by (used in) financing activities 8,837 (27,442)
-------- ---------
Net increase (decrease) in cash and cash equivalents 325 (16,445)
Cash and cash equivalents at beginning of period 419 16,600
-------- --------
Cash and cash equivalents at end of period $ 744 $ 155
-------- --------
-------- --------
Supplemental disclosures of cash flow information
Interest paid $ 2,157 $ 5,031
Income taxes paid 120 1,031
</TABLE>
THE ACCOMPANYING NOTES ARE AN INTEGRAL PART OF THE CONSOLIDATED
FINANCIAL STATEMENTS.
5
<PAGE>
HPSC, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. The information presented for the interim periods is unaudited, but
includes all adjustments (consisting only of normal recurring adjustments)
which, in the opinion of the Company, are necessary for a fair presentation of
the financial position, results of operations and cash flows for the periods
presented. The results for interim periods are not necessarily indicative of
results to be expected for the full fiscal year. Certain 1994 account balances
have been reclassed to conform with 1995 presentation.
2. Interest expense is net of interest income of $140,000 and $83,000 for the
three months ended and $235,000 and $154,000 for the six months ended June 30,
1995 and June 25, 1994, respectively. Included in interest expense is
amortization of debt discount of $38,000 for the six months ended June 25, 1994.
3. For the three months ended June 30, 1995, and June 25, 1994, the earnings
per share computation assumes the exercise of stock options under the modified
treasury stock method and includes only those shares allocated to participant
accounts in the Company's Employee Stock Ownership Plan discussed in Note 6.
4. Effective January 1, 1993, the Company adopted Statement of Accounting
Standards No. 109, "Accounting for Income Taxes," which requires recognition of
deferred tax liabilities and assets for the expected future tax consequences of
events that have been included in the financial statements or tax returns.
Prior to 1993, the Company used the asset and liability method prescribed by
Statement of Financial Accounting Standards No. 96, under which deferred tax
assets and liabilities were recognized for all events that had been recognized
in the financial statements. The effect of this change in accounting for income
taxes had no impact on the financial results of the Company.
The Items which comprise a significant portion of deferred tax liabilities as of
June 30, 1995, are as follows:
<TABLE>
<CAPTION>
<S> <C>
Operating method $ 5,916,000
State income tax accrual $ 1,002,000
Alternative minimum tax credit $ ( 612,000)
Other $ (1,779,000)
------------
Deferred income taxes $ 4,527,000
------------
------------
</TABLE>
5. On June 30, 1995, the Company had $6,428,000 in restricted cash of which
$3,348,000 was reserved for debt service and $3,080,000 was reserved for credit
enhancement pursuant to the terms of agreements entered into by the Company on
December 27, 1993, with respect to a $70,000,000 securitization transaction.
6. In June, 1995, the Board of Directors authorized and the Company made a
contribution of $110,000 to the Employee Stock Ownership Plan (ESOP) for 1994.
This contribution had the effect of allocating 31,372 shares of common stock of
the Company to qualified participant accounts at the end of 1994. The ESOP
holds 240,348 shares that have not yet been funded or allocated to specific
participant accounts. These unallocated shares have not been included in
earnings per share calculations. There was no allocation of shares from the
Supplemental ESOP, which holds 350,000 shares.
7. In connection with the HPSC Bravo Funding Corp. ("Bravo") revolving credit
facility, the Company had $15,527,000 of its Senior Notes subject to interest
rate swap agreements. Under the structure of the facility, Bravo incurs
interest at variable rates in the commercial paper market and enters into
interest rate swap agreements to assure fixed rate funding. At June 30, 1995,
Bravo had three separate swap contracts with the Bank of Boston with a total
notional value of $15,785,000.
6
<PAGE>
8. In May 1995, the Company executed a $50,000,000 Amended and Restated
revolving credit agreement with a bank group led by First National Bank of
Boston as agent bank. The agreement is secured primarily by customer
receivables, expires on December 31, 1995, and contains certain financial and
other covenants. At June 30, 1995, the Company had $20,000,000 outstanding
under this agreement and was in compliance with the terms and conditions of the
agreement.
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Quarter Ended June 30, 1995 Compared to Quarter Ended June 25, 1994
The Company's net income for the second quarter of 1995 was $136,000 or $.04 per
share compared to $139,000 or $.03 per share for 1994. For the six months ended
June 30, 1995, net income was $223,000 or $.06 per share compared to $346,000 or
$.07 per share in 1994. Per share calculations exclude shares carried as
Treasury Stock at June 30, 1995. For the quarter ended June 30, 1995, the
decrease in net income resulted from an increase in earned income from leases
and notes and lower net selling general and administrative costs offset by a
higher provision for losses and higher interest costs.
Earned income on leases and notes for the second quarter of 1995 was $3,203,000
compared to $3,062,000 in 1994. For the six months ended June 30, 1995, earned
income was $6,147,000 compared to $6,667,000 in 1994. The increase in the
second quarter was due primarily to the continuing increase in the portfolio of
recently added assets earning at a higher rate as compared to the prior year.
For the six month period, the decrease in earned income was caused by the sale
of the Canadian portfolio in the second quarter of 1994 and a lower portfolio of
earning assets for the six-month period. The Company's volume of new financing
for the second quarter of 1995 was $13,500,000 compared to $6,297,000 for the
same period in 1994. For the six month period, new financings were $28,186,000
for 1995 compared to $10,943,000 for 1994.
The provision for losses was $264,000 in the quarter ended June 30, 1995,
compared to $204,000 for the comparable period in 1994. For the six month
period in 1995, the provision for losses was $541,000 compared to $360,000 in
1994. These increases are the result of higher levels of new financings in
1995.
Selling, general and administrative expenses for the quarter ended June 30,
1995, were $1,520,000 as compared to $1,734,000 in 1994. For the six month
period in 1995, selling, general and administrative expenses were $3,000,000 as
compared to $3,532,000. These decreases were the result of the decrease in
Canadian expenses in 1995 and an increase in initial direct cost capitalization
due to the higher volume of new financings in 1995 as compared to 1994.
Net interest expense for the second quarter of 1995 was $1,195,000 as compared
to $895,000 in the same period of 1994. This increase was due to the higher
outstanding debt levels needed to support the increased new financing level.
For the six month period, interest expense increased to $2,239,000 in 1995 from
$2,206,000 in 1994. This increase was the result of higher debt levels offset
by lower interest rates in 1995.
The Company's income before income taxes in the second quarter of 1995 was
$224,000 compared to $229,000 in 1994. For the six months ended June 30, 1995,
income before income taxes was $367,000 compared to $569,000 in 1994. The
effective tax rate remained approximately the same for all periods.
7
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
(cont'd)
LIQUIDITY AND CAPITAL RESOURCES
At June 30, 1995, the Company had $7,172,000 in cash and cash equivalents as
compared to $8,355,000 at the end of 1994. As described in Note 5 to the
Company's consolidated financial statements included in this report on Form 10-
Q, $6,428,000 of such cash was restricted pursuant to financing agreements as of
June 30, 1995. Cash provided by operating activities was $1,118,000 for the six
months ended June 30, 1995 compared to cash used in operating activities of $1,
680,000 in the same period of 1994. Cash used in investing activities was
$9,630,000 for the six months ended June 30, 1995 compared to cash provided by
investing activities of $12,677,000 for 1994.
As of January 31, 1995, the Company, along with its newly-formed, wholly-owned,
special-purpose subsidiary, HPSC Bravo Funding Corp. ("Bravo") completed a
$50,000,000 revolving credit facility structured and guaranteed by Capital
Markets Assurance Corporation ("CapMAC"). Under the terms of the facility,
Bravo, to which the Company has sold and may continue to sell or contribute
certain of its portfolio assets, pledges its interest in these assets to a
commercial-paper conduit entity. Bravo incurs interest at variable rates in the
commercial paper market and enters into interest rate swap agreements to assure
fixed rate funding.
Monthly settlements of principal and interest payments are made from the
collection of payments on Bravo's transactions. Additional sales to Bravo from
HPSC may be made subject to certain covenants regarding Bravo's portfolio
performance and borrowing base calculations.
The Company is the servicer of the Bravo portfolio, subject to meeting certain
covenants. The required monthly payments of principal and interest to
purchasers of the commercial paper are guaranteed by Cap MAC pursuant to the
terms of the agreement. Amounts outstanding under this agreement were
$15,527,000 at June 30, 1995.
In May, 1995, the Company executed an Amended and Restated Revolving Loan
Agreement increasing availability to $50 million. This new agreement will expire
at December 31, 1995. In order to finance adequately its anticipated growth,
the Company will continue to seek to raise additional capital from bank and non-
bank sources in 1995. The Company expects that it will be able to obtain
additional capital at competitive rates, but there can be no assurance it will
be able to do so.
8
<PAGE>
HPSC, INC.
PART II. OTHER INFORMATION
Items 1 through 5 are omitted because they are inapplicable.
Item 6. Exhibits and Reports on Form 8-K
a) Exhibits:
10.5 Amended and Restated Revolving Loan Agreement dated May 12,
1995, among HPSC, Inc., The First National Bank of Boston
individually and as agent, and Bank of America Illinois,
Individually and as co-agent
27. Financial Data Schedule
a) Reports on Form 8-K: There were no reports on Form 8-K filed
during the three months ended June 30, 1995.
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, HPSC, Inc. has duly caused this report to be signed on its behalf
by the undersigned, thereunto duly authorized.
Dated: August 11, 1995 HPSC, INC.
------------------------------
(Registrant)
By: /s/ John W. Everets
------------------------------
John W. Everets
Chief Executive Officer
Chairman of the Board
By: /s/ Rene Lefebvre
------------------------------
Rene Lefebvre
Vice President
Chief Financial Officer
9
<PAGE>
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
dated as of May 15, 1995
between
HPSC, INC.
and
THE FIRST NATIONAL BANK OF BOSTON
individually and as Agent
and
Bank of America Illinois
Shawmut Bank, N.A.
CoreStates Bank, N.A.
The Daiwa Bank, Limited
<PAGE>
1. DEFINITIONS AND RULES OF INTERPRETATION.. . . . . . . . . . . . . . . . .1
1.1. Definitions.. . . . . . . . . . . . . . . . . . . . . . . . . . .1
1.2. Rules of Interpretation.. . . . . . . . . . . . . . . . . . . . .18
2. THE REVOLVING CREDIT FACILITY.. . . . . . . . . . . . . . . . . . . . . .19
2.1. Commitment to Lend. . . . . . . . . . . . . . . . . . . . . . . .19
2.2. Commitment Fee. . . . . . . . . . . . . . . . . . . . . . . . . .19
2.3. Reduction of Total Commitment.. . . . . . . . . . . . . . . . . .20
2.4. The Revolving Credit Notes. . . . . . . . . . . . . . . . . . . .20
2.5. Interest on Revolving Credit Loans. . . . . . . . . . . . . . . .21
2.6. Requests for Revolving Credit Loans.. . . . . . . . . . . . . . .22
2.7. Conversion Options. . . . . . . . . . . . . . . . . . . . . . . .23
2.7.1. Conversion to Different Type of Revolving Credit
Loan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
2.7.2. Continuation of Type of Revolving Credit Loan. . . . . .23
2.7.3. Eurodollar Rate Loans. . . . . . . . . . . . . . . . . .24
2.8. Funds for Revolving Credit Loans. . . . . . . . . . . . . . . . .24
2.8.1. Funding Procedures.. . . . . . . . . . . . . . . . . . .24
2.8.2. Advances by Agent. . . . . . . . . . . . . . . . . . . .24
2.9. Change in Borrowing Base. . . . . . . . . . . . . . . . . . . . .25
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.. . . . . . . . . . . . . . . . .25
3.1. Maturity. . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
3.2. Mandatory Repayments of Revolving Credit Loans. . . . . . . . . .25
3.3. Optional Repayments of Revolving Credit Loans.. . . . . . . . . .26
3A. LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . . . . . . . . .26
3A.1. Letter of Credit Commitments.. . . . . . . . . . . . . . . . . .26
3A.1.1. Commitment to Issue Letters of Credit.. . . . . . . . .26
3A.1.2. Letter of Credit Applications.. . . . . . . . . . . . .27
3A.1.3. Terms of Letters of Credit. . . . . . . . . . . . . . .27
3A.1.4. Reimbursement Obligations of Banks. . . . . . . . . . .27
3A.1.5. Participations of Banks.. . . . . . . . . . . . . . . .27
3A.2. Reimbursement Obligation of the Borrower.. . . . . . . . . . . .28
3A.3. Letter of Credit Payments. . . . . . . . . . . . . . . . . . . .28
3A.4. Obligations Absolute.. . . . . . . . . . . . . . . . . . . . . .29
3A.5. Reliance by Issuer.. . . . . . . . . . . . . . . . . . . . . . .30
3A.6. Letter of Credit Fee.. . . . . . . . . . . . . . . . . . . . . .30
4. CERTAIN GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . .30
4.1. Closing Fee.. . . . . . . . . . . . . . . . . . . . . . . . . . .30
4.2. Agent's Fee.. . . . . . . . . . . . . . . . . . . . . . . . . . .31
4.3. Funds for Payments. . . . . . . . . . . . . . . . . . . . . . . .31
4.3.1. Payments to Agent. . . . . . . . . . . . . . . . . . . .31
4.3.2. No Offset, etc.. . . . . . . . . . . . . . . . . . . . .31
4.4. Computations. . . . . . . . . . . . . . . . . . . . . . . . . . .31
4.5. Inability to Determine Eurodollar Rate. . . . . . . . . . . . . .32
4.6. Illegality. . . . . . . . . . . . . . . . . . . . . . . . . . . .32
4.7. Additional Costs, etc.. . . . . . . . . . . . . . . . . . . . . .33
<PAGE>
-ii-
4.8. Capital Adequacy. . . . . . . . . . . . . . . . . . . . . . . .34
4.9. Certificate. . . . . . . . . . . . . . . . . . . . . . . . . . .35
4.10. Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . .35
4.11. Overdue Amounts. . . . . . . . . . . . . . . . . . . . . . . . .35
5. SECURITY AND GUARANTIES.. . . . . . . . . . . . . . . . . . . . . . . . .35
5.1. Security of Borrower. . . . . . . . . . . . . . . . . . . . . . .35
5.2. Guaranties and Security of Subsidiaries.. . . . . . . . . . . . .35
6. REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . . .36
6.1. Corporate Authority.. . . . . . . . . . . . . . . . . . . . . . .36
6.1.1. Incorporation; Good Standing.. . . . . . . . . . . . . .36
6.1.2. Authorization. . . . . . . . . . . . . . . . . . . . . .36
6.1.3. Enforceability.. . . . . . . . . . . . . . . . . . . . .36
6.2. Governmental Approvals. . . . . . . . . . . . . . . . . . . . . .37
6.3. Title to Properties; Leases.. . . . . . . . . . . . . . . . . . .37
6.4. Financial Statements and Projections. . . . . . . . . . . . . . .37
6.4.1. Financial Statements.. . . . . . . . . . . . . . . . . .37
6.4.2. Projections. . . . . . . . . . . . . . . . . . . . . . .37
6.5. No Material Adverse Changes, etc. . . . . . . . . . . . . . . . .38
6.6. Franchises, Patents, Copyrights, etc. . . . . . . . . . . . . . .38
6.7. Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . .38
6.8. No Materially Adverse Contracts, etc. . . . . . . . . . . . . . .39
6.9. Compliance With Other Instruments, Laws, etc. . . . . . . . . . .39
6.10. Tax Status.. . . . . . . . . . . . . . . . . . . . . . . . . . .39
6.11. No Event of Default. . . . . . . . . . . . . . . . . . . . . . .39
6.12. Holding Company and Investment Company Acts. . . . . . . . . . .39
6.13. Absence of Financing Statements, etc.. . . . . . . . . . . . . .40
6.14. Perfection of Security Interest. . . . . . . . . . . . . . . . .40
6.15. Certain Transactions.. . . . . . . . . . . . . . . . . . . . . .40
6.16. Employee Benefit Plans.. . . . . . . . . . . . . . . . . . . . .40
6.16.1. In General. . . . . . . . . . . . . . . . . . . . . . .40
6.16.2. Terminability of Welfare Plans. . . . . . . . . . . . .41
6.16.3. Guaranteed Pension Plans. . . . . . . . . . . . . . . .41
6.16.4. Multiemployer Plans.. . . . . . . . . . . . . . . . . .41
6.17. Regulations U and X. . . . . . . . . . . . . . . . . . . . . . .41
6.18. Environmental Compliance.. . . . . . . . . . . . . . . . . . . .41
6.19. Subsidiaries, etc. . . . . . . . . . . . . . . . . . . . . . . .43
6.20. Bank Accounts. . . . . . . . . . . . . . . . . . . . . . . . . .43
Section 6.21. Eligible Accounts Receivable, Equipment and Contracts. .44
6.22 Vehicle Leases. Schedule 6.22 sets forth all Vehicle Leases.. . .47
7. AFFIRMATIVE COVENANTS OF THE BORROWER.. . . . . . . . . . . . . . . . . .47
7.1. Punctual Payment. . . . . . . . . . . . . . . . . . . . . . . . .47
7.2. Maintenance of Office.. . . . . . . . . . . . . . . . . . . . . .47
7.3. Records and Accounts. . . . . . . . . . . . . . . . . . . . . . .47
7.4. Financial Statements, Certificates and Information. . . . . . . .47
7.5. Notices.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .49
<PAGE>
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7.5.1. Defaults.. . . . . . . . . . . . . . . . . . . . . . . .49
7.5.2. Environmental Events.. . . . . . . . . . . . . . . . . .50
7.5.3. Notification of Claims Against Collateral. . . . . . . .50
7.5.4. Notice of Litigation and Judgments.. . . . . . . . . . .50
7.6. Corporate Existence; Maintenance of Properties. . . . . . . . . .50
7.7. Insurance.. . . . . . . . . . . . . . . . . . . . . . . . . . . .51
7.8. Taxes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
7.9. Inspection of Properties and Books, etc.. . . . . . . . . . . . .52
7.9.1. General. . . . . . . . . . . . . . . . . . . . . . . . .52
7.9.2. Collateral Reports.. . . . . . . . . . . . . . . . . . .52
7.9.3. Communication with Accountants.. . . . . . . . . . . . .52
7.10. Compliance with Laws, Contracts, Licenses, and Permits.. . . . .53
7.11. Employee Benefit Plans.. . . . . . . . . . . . . . . . . . . . .53
7.12. Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . .53
7.13. Bank Accounts. . . . . . . . . . . . . . . . . . . . . . . . . .54
7.14. Credit Criteria. . . . . . . . . . . . . . . . . . . . . . . . .54
7.15. Further Assurances.. . . . . . . . . . . . . . . . . . . . . . .54
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. . . . . . . . . . . . . . . .54
8.1. Restrictions on Indebtedness. . . . . . . . . . . . . . . . . . .54
8.2. Restrictions on Liens.. . . . . . . . . . . . . . . . . . . . . .56
8.3. Restrictions on Investments.. . . . . . . . . . . . . . . . . . .58
8.4. Distributions.. . . . . . . . . . . . . . . . . . . . . . . . . .59
8.5. Merger, Consolidation and Disposition of Assets.. . . . . . . . .59
8.5.1. Mergers and Acquisitions.. . . . . . . . . . . . . . . .59
8.5.2. Disposition of Assets. . . . . . . . . . . . . . . . . .59
8.6. Sale and Leaseback. . . . . . . . . . . . . . . . . . . . . . . .60
8.7. Compliance with Environmental Laws. . . . . . . . . . . . . . . .60
8.8. Other Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . .60
8.9. Employee Benefit Plans. . . . . . . . . . . . . . . . . . . . . .60
8.10. Bank Accounts. . . . . . . . . . . . . . . . . . . . . . . . . .61
8.11. Funding Stock. . . . . . . . . . . . . . . . . . . . . . . . . .61
9. FINANCIAL COVENANTS OF THE BORROWER.. . . . . . . . . . . . . . . . . . .61
9.1. Debt to Consolidated Tangible Capital Funds.. . . . . . . . . . .61
9.2. Consolidated Tangible Net Worth.. . . . . . . . . . . . . . . . .61
9.3. Interest Coverage.. . . . . . . . . . . . . . . . . . . . . . . .62
9.4. Capital Expenditures. . . . . . . . . . . . . . . . . . . . . . .62
9.5. Reissued Customer Receivables to Gross Customer Receivables.. . .62
9.6. Delinquent Customer Receivables to Gross Customer Receivables
Ratio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .62
9.7. Reserves to Delinquent Customer Receivables.. . . . . . . . . . .62
9.8. Provision for Losses. . . . . . . . . . . . . . . . . . . . . . .62
9.9. Collections to Billings.. . . . . . . . . . . . . . . . . . . . .63
9.10. Leases.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .63
9.11. Equipment Supplier Concentration.. . . . . . . . . . . . . . . .63
10. CLOSING CONDITIONS.. . . . . . . . . . . . . . . . . . . . . . . . . . .63
<PAGE>
-iv-
10.1. Loan Documents.. . . . . . . . . . . . . . . . . . . . . . . . .63
10.2. Certified Copies of Charter Documents. . . . . . . . . . . . . .63
10.3. Corporate Action.. . . . . . . . . . . . . . . . . . . . . . . .63
10.4. Incumbency Certificate.. . . . . . . . . . . . . . . . . . . . .63
10.5. Validity of Liens. . . . . . . . . . . . . . . . . . . . . . . .64
10.6. Perfection Certificates and UCC Search Results.. . . . . . . . .64
10.7. Certificates of Insurance. . . . . . . . . . . . . . . . . . . .64
10.8. Bank Agency Agreements.. . . . . . . . . . . . . . . . . . . . .64
10.9. Borrowing Base Report. . . . . . . . . . . . . . . . . . . . . .64
10.10. Accounts Receivable Aging Report. . . . . . . . . . . . . . . .64
10.11. Solvency Certificate. . . . . . . . . . . . . . . . . . . . . .65
10.12. Opinions of Counsel.. . . . . . . . . . . . . . . . . . . . . .65
10.13. Payment of Fees.. . . . . . . . . . . . . . . . . . . . . . . .65
10.l4. Management Letter.. . . . . . . . . . . . . . . . . . . . . . .65
10.15. Funding Reports.. . . . . . . . . . . . . . . . . . . . . . . .65
11. CONDITIONS TO ALL BORROWINGS.. . . . . . . . . . . . . . . . . . . . . .65
11.1. Representations True; No Event of Default. . . . . . . . . . . .65
11.2. No Legal Impediment. . . . . . . . . . . . . . . . . . . . . . .66
11.3. Governmental Regulation. . . . . . . . . . . . . . . . . . . . .66
11.4. Proceedings and Documents. . . . . . . . . . . . . . . . . . . .66
11.5. Borrowing Base Report. . . . . . . . . . . . . . . . . . . . . .66
12. EVENTS OF DEFAULT; ACCELERATION; ETC.. . . . . . . . . . . . . . . . . .66
12.1. Events of Default and Acceleration.. . . . . . . . . . . . . . .66
12.2. Termination of Commitments.. . . . . . . . . . . . . . . . . . .71
12.3. Remedies.. . . . . . . . . . . . . . . . . . . . . . . . . . . .71
12.4. Distribution of Collateral Proceeds. . . . . . . . . . . . . . .71
13. SETOFF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .72
14. THE AGENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .73
14.1. Authorization. . . . . . . . . . . . . . . . . . . . . . . . . .73
14.2. Employees and Agents.. . . . . . . . . . . . . . . . . . . . . .74
14.3. No Liability.. . . . . . . . . . . . . . . . . . . . . . . . . .74
14.4. No Representations.. . . . . . . . . . . . . . . . . . . . . . .74
14.5. Payments.. . . . . . . . . . . . . . . . . . . . . . . . . . . .75
14.5.1. Payments to Agent.. . . . . . . . . . . . . . . . . . .75
14.5.2. Distribution by Agent.. . . . . . . . . . . . . . . . .75
14.5.3. Delinquent Banks. . . . . . . . . . . . . . . . . . . .75
14.6. Holders of Notes.. . . . . . . . . . . . . . . . . . . . . . . .76
14.7. Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . . . .76
14.8. Agent as Bank. . . . . . . . . . . . . . . . . . . . . . . . . .76
14.9. Resignation. . . . . . . . . . . . . . . . . . . . . . . . . . .76
15. EXPENSES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .77
16. INDEMNIFICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . .78
17. SURVIVAL OF COVENANTS, ETC.. . . . . . . . . . . . . . . . . . . . . . .79
18. ASSIGNMENT AND PARTICIPATION.. . . . . . . . . . . . . . . . . . . . . .79
18.1. Conditions to Assignment by Banks. . . . . . . . . . . . . . . .79
<PAGE>
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18.2. Certain Representations and Warranties; Limitations;
Covenants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .80
18.3. Register.. . . . . . . . . . . . . . . . . . . . . . . . . . . .81
18.4. New Notes. . . . . . . . . . . . . . . . . . . . . . . . . . . .81
18.5. Participations.. . . . . . . . . . . . . . . . . . . . . . . . .82
18.6. Disclosure.. . . . . . . . . . . . . . . . . . . . . . . . . . .82
18.7. Assignee or Participant Affiliated with the Borrower.. . . . . .82
18.8. Miscellaneous Assignment Provisions. . . . . . . . . . . . . . .83
18.9. Assignment by Borrower.. . . . . . . . . . . . . . . . . . . . .83
19. NOTICES, ETC.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84
20. GOVERNING LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .84
21. HEADINGS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85
22. COUNTERPARTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .85
23. ENTIRE AGREEMENT, ETC. . . . . . . . . . . . . . . . . . . . . . . . . .85
24. WAIVER OF JURY TRIAL.. . . . . . . . . . . . . . . . . . . . . . . . . .85
25. CONSENTS, AMENDMENTS, WAIVERS, ETC.. . . . . . . . . . . . . . . . . . .86
26. SEVERABILITY.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86
27. TRANSITIONAL ARRANGEMENTS. . . . . . . . . . . . . . . . . . . . . . . .87
27.1. Prior Loan Agreement Superseded. . . . . . . . . . . . . . . . .87
27.2. Return and Cancellation of Notes.. . . . . . . . . . . . . . . .87
27.3. Interest and Fees Under Superseded Agreement.. . . . . . . . . .87
27.4. No Claims Under Prior Loan Agreement.. . . . . . . . . . . . . .87
28. TRANSITIONAL ARRANGMENTS . . . . . . . . . . . . . . . . . . . . . . . .
<PAGE>
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SCHEDULES
Schedule 1 Banks
Schedule 6.3 Leases
Schedule 6.4.1 Contingent Liabilities
Schedule 6.7 Litigation
Schedule 6.18 Environmental Matters
Schedule 6.19 Subsidiaries
Schedule 6.20 Bank Accounts
Schedule 6.22 Vehicle Leases
Schedule 8.1 Existing Indebtedness
Schedule 8.2(g) Existing Liens
Schedule 8.2(m) SIS Liens
Schedule 8.3 Existing Investments
EXHIBITS
Exhibit A Form of Borrowing Base Report
Exhibit B Form of Revolving Credit Note
Exhibit C Form of Revolving Credit Loan Request
Exhibit D Form of Compliance Certificate
Exhibit E Form of Security Agreement
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Guaranty
Exhibit H Form of Stock Pledge Agreement
Exhibit I Form of Agency Agreement
<PAGE>
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is made as of May 15,
1995, by and among HPSC, INC. (the "Borrower"), a Delaware corporation having
its principal place of business at 60 State Street, Boston, Massachusetts 02109,
THE FIRST NATIONAL BANK OF BOSTON, a national banking association ("FNBB"), BANK
OF AMERICA ILLINOIS, an Illinois banking corporation ("BOA"), SHAWMUT BANK,
N.A., a national banking association ("Shawmut"), CORESTATES BANK, N.A., a
national banking association ("CoreStates"), THE DAIWA BANK, LIMITED, ("Daiwa")
and the other lending institutions listed on SCHEDULE 1 and THE FIRST NATIONAL
BANK OF BOSTON as Agent for itself and such other lending institutions.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1 DEFINITIONS. The following terms shall have the meanings set forth in
this Section 1 or elsewhere in the provisions of this Credit Agreement referred
to below:
ACFC. American Commercial Finance Corporation a Delaware corporation and
wholly-owned Subsidiary of the Borrower.
ACCOUNTS RECEIVABLE. All rights of the Borrower or any of its Subsidiaries
(other than Funding and Credident) to payment for and under a Customer
Receivable or a Practice Receivable, except for that portion of the sum of money
or other proceeds due thereon that relate to sales, use or property taxes in
conjunction with such transactions, recorded on books of account in accordance
with generally accepted accounting principles.
ADJUSTMENT DATE. See Section 2.5.
AFFILIATE. Any Person that would be considered to be an affiliate of the
Borrower under Rule 144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
AGENT. The First National Bank of Boston acting as co-agent for the Banks.
AGENT'S SPECIAL COUNSEL. Bingham, Dana & Gould or such other counsel as
may be approved by the Agent.
APPLICABLE MARGIN. See Section 2.5.
APPLICABLE RATE. See Section 3A.6.
<PAGE>
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ASSIGNMENT AND ACCEPTANCE. See Section 18.1.
BALANCE SHEET DATE. December 31, 1994.
BANKS. FNBB, BOA, Shawmut, CoreStates, Daiwa and the other lending
institutions listed on SCHEDULE 1 hereto and any other Person who becomes an
assignee of any rights and obligations of a Bank pursuant to Section 18.
BASE RATE. The higher of (i) the annual rate of interest announced from
time to time by FNBB at its head office in Boston, Massachusetts, as its "base
rate" or (ii) one-half of one percent (1/2%) above the Federal Funds Effective
Rate. For the purposes of this definition, "Federal Funds Effective Rate" shall
mean, for any day, the rate per annum equal to the weighted average of the rates
on overnight federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers, as published for such day (or if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three funds brokers of recognized
standing selected by the Agent.
BASE RATE LOANS. Revolving Credit Loans bearing interest calculated by
reference to the Base Rate.
BILLINGS. The aggregate amount of invoices rendered by the Borrower or any
of its Subsidiaries (other than Funding and Credident) to any account debtor
during the relevant period.
BORROWER. As defined in the preamble hereto.
BORROWING BASE. At the relevant time of reference thereto, an amount
determined by the Agent by reference to the most recent Borrowing Base Report
delivered to the Banks and the Agent pursuant to Section 7.4(e), which is equal
to the sum of the following:
(i) 80% of Eligible Accounts Receivable; PLUS
(ii) 50% of the Residual Value of Equipment, PROVIDED, that the amount
included in the Borrowing Base pursuant to this clause (ii) shall not exceed
$1,000,000.
BORROWING BASE REPORT. A Borrowing Base Report signed by the chief
financial officer of the Borrower and in substantially the form of EXHIBIT A
hereto.
BUSINESS DAY. Any day on which banking institutions in Boston,
Massachusetts, are open for the transaction of banking business and, in the case
of Eurodollar Rate Loans, also a day which is a Eurodollar Business Day.
<PAGE>
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CAPITAL ASSETS. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); PROVIDED that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with generally accepted
accounting principles.
CAPITAL EXPENDITURES. Amounts paid or indebtedness incurred by the
Borrower or any of its Subsidiaries in connection with the purchase or lease by
the Borrower or any of its Subsidiaries of Capital Assets that would be required
to be capitalized and shown on the balance sheet of such Person in accordance
with generally accepted accounting principles.
CAPITALIZED LEASES. Leases (other than Vehicle Leases) under which the
Borrower or any of its Subsidiaries is the lessee or obligor, the discounted
future rental payment obligations under which are required to be capitalized on
the balance sheet of the lessee or obligor in accordance with generally accepted
accounting principles.
CERCLA. See Section 6.18.
CLOSING DATE. The first date on which the conditions set forth in
Section 10 have been satisfied and any Revolving Credit Loans are to be made.
CODE. The Internal Revenue Code of 1986.
COLLATERAL. All of the property, rights and interests of the Borrower and
its Subsidiaries (other than Funding and Credident) that are or are intended to
be subject to the security interests created by the Security Documents.
COLLECTIONS. The aggregate amount of all payments in cash actually
received by the Borrower or any of its Subsidiaries (other than Funding and
Credident) on Accounts Receivable during the relevant period.
COMMITMENT. With respect to each Bank, the amount set forth on SCHEDULE 1
hereto as the amount of such Bank's commitment to make Loans to, and participate
in the issuance, extension and renewal of Letters of Credit for the account of,
the Borrower, as the same may be reduced from time to time; or if such
commitment is terminated pursuant to the provisions hereof, zero.
COMMITMENT PERCENTAGE. With respect to each Bank, the percentage set forth
on SCHEDULE 1 hereto as such Bank's percentage of the aggregate Commitments of
all of the Banks.
CONSOLIDATED or CONSOLIDATED. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Borrower and certain of
its Subsidiaries, consolidated in accordance with generally accepted accounting
principles.
<PAGE>
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CONSOLIDATED EARNINGS BEFORE INTEREST AND TAXES. The consolidated earnings
(or loss) from the operations of the Borrower and its Subsidiaries (other than
Credident) for any period, after all expenses and other proper charges but
before payment or provision for any income taxes or interest expense for such
period, determined in accordance with generally accepted accounting principles.
CONSOLIDATED NET INCOME (OR DEFICIT). The consolidated net income (or
deficit) of the Borrower and its Subsidiaries (other than Credident), after
deduction of all expenses, taxes, and other proper charges, determined in
accordance with generally accepted accounting principles, after eliminating
therefrom all extraordinary nonrecurring items of income.
CONSOLIDATED TANGIBLE CAPITAL FUNDS. The sum of (a) Consolidated Tangible
Net Worth PLUS (b) Subordinated Debt.
CONSOLIDATED TANGIBLE NET WORTH. The excess of Consolidated Total Assets
over Consolidated Total Liabilities, and LESS the sum of:
(a) the total book value of all assets of the Borrower and its
Subsidiaries (other than Credident) properly classified as intangible
assets under generally accepted accounting principles, including such items
as good will, the purchase price of acquired assets in excess of the fair
market value thereof, trademarks, trade names, service marks, brand names,
copyrights, patents and licenses, and rights with respect to the foregoing;
PLUS
(b) all amounts representing any write-up in the book value of any
assets of the Borrower or its Subsidiaries (other than Credident) resulting
from a revaluation thereof subsequent to the Balance Sheet Date, excluding
adjustments to translate foreign assets and liabilities for changes in
foreign exchange rates made in accordance with Financial Accounting
Standards Board Statement No. 52; PLUS
(c) to the extent otherwise includable in the computation of
Consolidated Tangible Net Worth, any subscriptions receivable; plus
(d) deferred underwriting expenses and deferred origination costs.
CONSOLIDATED TOTAL ASSETS. All assets of the Borrower and its Subsidiaries
(other than Credident) determined on a consolidated basis in accordance with
generally accepted accounting principles.
CONSOLIDATED TOTAL INTEREST EXPENSE. For any period, the aggregate amount
of interest required to be paid or accrued by the Borrower and its Subsidiaries
(other than Credident) during such period on all Indebtedness of the Borrower
and its Subsidiaries (other than Credident) outstanding during all or any part
of such period, whether such interest was or is required to be reflected as an
item of expense or capitalized, including payments consisting of interest in
respect of Capitalized Leases
<PAGE>
-5-
and including commitment fees, agency fees, facility fees, balance deficiency
fees and similar fees or expenses in connection with the borrowing of money.
CONSOLIDATED TOTAL LIABILITIES. All liabilities of the Borrower and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles and all Indebtedness of the Borrower and its
Subsidiaries (other than Credident or Indebtedness of the Borrower with respect
to Credident), whether or not so classified.
CONTRACT. Each lease, conditional sale agreement, note, agreement or
instrument which evidences any Account Receivable included in Eligible Accounts
Receivable at any time.
CONVERSION REQUEST. A notice given by the Borrower to the Agent of the
Borrower's election to convert or continue a Loan in accordance with
Section 2.7.
CREDIT AGREEMENT. This Revolving Credit Agreement, including the Schedules
and Exhibits hereto.
CREDIT POLICY. The criteria for the extension of credit for receivables
and contracts of the Borrower and its Subsidiaries.
CREDIDENT. Credident, Inc., a Canadian corporation and wholly-owned
Subsidiary of the Borrower.
CUSTOMER. A Person for whom the Borrower or its Subsidiaries (other than
Funding and Credident) finances property or goods or leasehold improvements or
working capital requirements.
CUSTOMER RECEIVABLE. Obligations of any kind or nature to the Borrower or
its Subsidiaries (other than Funding and Credident) (i) incurred by Customers in
the ordinary course of their respective businesses or (ii) arising from the
purchase by the Borrower or any of its Subsidiaries (other than Funding and
Credident) of promissory notes, leases payable or accounts receivable from a
third party obligee.
DEFAULT. See Section 12.
DELINQUENT. As to any Customer Receivable, a default thereunder (with
respect to payment or otherwise) which at the end of any calendar month has
remained uncured for ninety days (on a billed and uncollected delinquency
basis), PROVIDED that during each year of the original contract term remaining
on such Customer Receivable, the Borrower or its Subsidiaries (other than
Funding and Credident) may (without rendering such Customer Receivable
Delinquent) extend one full or partial payment for a period not to exceed one
month beyond the then scheduled payment date, so long as no more than two such
extensions are granted in any year.
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DISTRIBUTION. The declaration or payment of any dividend on or in respect
of any shares of any class of capital stock of the Borrower, other than
dividends payable solely in shares of common stock of the Borrower; the
purchase, redemption, or other retirement of any shares of any class of capital
stock of the Borrower, directly or indirectly through a Subsidiary of the
Borrower or otherwise; the return of capital by the Borrower to its shareholders
as such; or any other distribution on or in respect of any shares of any class
of capital stock of the Borrower.
DOLLARS or $. Dollars in lawful currency of the United States of America.
DOMESTIC LENDING OFFICE. Initially, the office of each Bank designated as
such in SCHEDULE 1 hereto; thereafter, such other office of such Bank, if any,
located within the United States that will be making or maintaining Base Rate
Loans.
DRAWDOWN DATE. The date on which any Revolving Credit Loan is made or is
to be made, and the date on which any Revolving Credit Loan is converted or
continued in accordance with Section 2.7.
ELIGIBLE ACCOUNTS RECEIVABLE. The aggregate of the unpaid portions of
Accounts Receivable (net of any credits, rebates, offsets, holdbacks or other
adjustments or commissions payable to third parties that are adjustments to such
Accounts Receivable) (i) that the Borrower reasonably and in good faith
determines to be collectible; (ii) that are with account debtors that (A) are
not Affiliates of the Borrower, (B) are Customers in an arm's length
transaction; (C) are not insolvent or involved, whether voluntary or
involuntary, in any case or proceeding under any bankruptcy, reorganization,
arrangement, insolvency, adjustment of debt, dissolution, liquidation or similar
law of any jurisdiction; (D) which, from time to time, at the election of the
Agent, have been reviewed by the Agent and found in the Agent's reasonable
judgment to be collectable (iii) that are in payment of obligations that have
been fully performed and are not subject to dispute or any other similar claims
that would reduce the cash amount payable therefor; (iv) that are not subject to
any pledge, restriction, security interest or other lien or encumbrance other
than those created by the Loan Documents; (v) in which the Agent has a valid and
perfected first priority security interest; (vi) that are not outstanding for
more than ninety (90) days past the date such Accounts Receivable are due, but
in no event outstanding for more than 120 days from date of invoice; (vii) that
are not due from any single account debtor if more than fifteen percent (15%) of
the aggregate amount of all Accounts Receivable owing from such account debtor
would otherwise not be Eligible Accounts Receivable; (viii) that are payable in
Dollars; (ix) that are not payable from an office outside of the United States;
(x) that are not secured by a letter of credit unless the Agent has a prior,
perfected security interest in such letter of credit; (xi) that are not included
in the "Receivables Pool" (as such term is defined in the Funding Indenture);
(xii) that are not subject to any lien or any negative pledge pursuant to the
Funding Indenture; (xiii) that originated in the ordinary course of business of
the Borrower; (xiv) that are not due from any single account debtor if, after
including such Accounts Receivable, the Borrowing Base will be comprised of
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more than $750,000 of Accounts Receivable owing from such account debtor
PROVIDED, HOWEVER that Practice Receivables shall not be included when
calculating this $750,000 account debtor concentration limitation; (xv) that are
not due from any single account debtor if, after including such Accounts
Receivable, the Borrowing Base will be comprised of more than $1,000,000 of
Practice Receivables owing from such account debtor; (xvi) that have not been
transferred to Funding II pursuant to the Purchase Agreement; and (xvii) that
are not subject to any lien or negative pledge pursuant to the Funding II Credit
Agreement. Notwithstanding the foregoing, (i) Accounts Receivable that have
balances outstanding for more than 120 days from date of invoice and less than
150 days from date of invoice may be treated as Eligible Accounts Receivable so
long as not more than five and one-quarter percent (5.25%) of the Borrowing Base
is comprised of such Accounts Receivable and (ii) the maximum aggregate amount
of Practice Receivables which may be treated as Eligible Accounts Receivable is
$10,000,000.
ELIGIBLE ASSIGNEE. Any of (i) a commercial bank or finance company
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (ii)
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; (iii) 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; (iv) the
central bank of any country which is a member of the OECD; and (v) if, but only
if, an Event of Default has occurred and is continuing, any other bank,
insurance company, commercial finance company or other financial institution or
other Person approved by the Agent, such approval not to be unreasonably
withheld.
EMPLOYEE BENEFIT PLAN. Any employee benefit plan within the meaning of
Section 3(2) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
ENVIRONMENTAL LAWS. See Section 6.18(a).
EQUIPMENT. Each item of equipment that is the subject of any Contract,
including all parts, accessions and modifications thereto and all replacements
thereof.
EQUIPMENT SUPPLIER. A Person (other than the Borrower) who supplies
Equipment to Customers.
ERISA. The Employee Retirement Income Security Act of 1974.
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ERISA AFFILIATE. Any Person which is treated as a single employer with the
Borrower under Section 414 of the Code.
ERISA REPORTABLE EVENT. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
EUROCURRENCY RESERVE RATE. For any day with respect to a Eurodollar Rate
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
EURODOLLAR BUSINESS DAY. Any Business Day on which commercial banks are
open for international business (including dealings in Dollar deposits) in
London or such other eurodollar interbank market as may be selected by the Agent
in its sole discretion acting in good faith.
EURODOLLAR LENDING OFFICE. Initially, the office of each Bank designated
as such in SCHEDULE 1 hereto; thereafter, such other office of such Bank, if
any, that shall be making or maintaining Eurodollar Rate Loans.
EURODOLLAR RATE. For any Interest Period with respect to a Eurodollar Rate
Loan, the rate of interest equal to (i) the arithmetic average of the rates per
annum for each Reference Bank (rounded upwards to the nearest 1/16 of one
percent) of the rate at which such Reference Bank's Eurodollar Lending Office is
offered Dollar deposits two Eurodollar Business Days prior to the beginning of
such Interest Period in the interbank eurodollar market where the eurodollar and
foreign currency and exchange operations of such Eurodollar Lending Office are
customarily conducted at or about 10:00 a.m., Boston 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 Rate Loan of such
Reference Bank to which such Interest Period applies, divided by (ii) a number
equal to 1.00 minus the Eurocurrency Reserve Rate, if applicable.
EURODOLLAR RATE LOANS. Revolving Credit Loans bearing interest calculated
by reference to the Eurodollar Rate.
EVENT OF DEFAULT. See Section 12.
EVENT OF TERMINATION. Any event or condition identified as an Event of
Termination" in Section 7.01 of the Purchase Agreement.
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FNBB. The First National Bank of Boston, a national banking association,
in its individual capacity.
FUNDING. Each of HPSC Funding Corp. I and HPSC Bravo Funding Corp.
FUNDING I. HPSC Funding Corp. I., a Delaware corporation and wholly-owned
subsidiary of the Borrower.
FUNDING II. HPSC Bravo Funding Corp., a Delaware corporation and wholly-
owned subsidiary of the Borrower.
FUNDING II CREDIT AGREEMENT. The lease receivables-backed credit agreement
dated as of February 6, 1995 by and among the Funding II, Triple-A One Funding
Corporation, a Delaware corporation and Capital Markets Assurance Corporation, a
New York stock insurance company.
FUNDING II FACILITY DOCUMENTS. Collectively, the Purchase Agreement, the
Funding II Credit Agreement and all other agreements, documents and instruments
entered into pursuant thereto or in connection therewith.
FUNDING EVENT OF DEFAULT. Any event or condition identified as an "Event
of Default" in Section 11 of the Funding Indenture.
FUNDING INDENTURE. The Indenture and Servicing Agreement dated as of
December 23, 1993 among the Borrower as Servicer, Funding as Issuer and State
Street Bank and Trust Company of Connecticut, National Association as Trustee,
pursuant to which the issuer issued $70,000,000 of receivable backed notes.
GENERALLY ACCEPTED ACCOUNTING PRINCIPLES. (i) When used in Section 9,
whether directly or indirectly through reference to a capitalized term used
therein, means (A) principles that are consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, in effect for the fiscal year ended on the Balance Sheet Date, and
(B) to the extent consistent with such principles, the accounting practice of
the Borrower reflected in its financial statements for the year ended on the
Balance Sheet Date, and (ii) when used in general, other than as provided above,
means principles that are (A) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time and (B) consistently applied with past financial
statements of the Borrower adopting the same principles, PROVIDED that in each
case referred to in this definition of "generally accepted accounting
principles" a certified public accountant would, insofar as the use of such
accounting principles is pertinent, be in a position to deliver an unqualified
opinion (other than a qualification regarding changes in generally accepted
accounting principles) as to financial statements in which such principles have
been properly applied.
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GROSS CUSTOMER RECEIVABLES. The aggregate amount at any time of all
amounts due or to become due in cash on Customer Receivables which amount shall
include the aggregate Residual Value of Equipment.
GUARANTEED PENSION PLAN. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
GUARANTY. The Guaranty dated as of the date hereof made by each Subsidiary
of the Borrower (other than Funding and Credident) in favor of the Banks and the
Agent pursuant to which each Subsidiary (other than Funding and Credident) of
the Borrower guaranties to the Banks and the Agent the payment and performance
of the Obligations and in form and substance satisfactory to the Banks and the
Agent.
HAZARDOUS SUBSTANCES. See Section 6.18(b).
HEAD OFFICE. The Agent's head office located at 100 Federal Street,
Boston, Massachusetts 02110, or at such other location as the Agent may
designate from time to time.
INDEBTEDNESS. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should be
made by footnotes thereto, including in any event and whether or not so
classified: (i) all debt and similar monetary obligations, whether direct or
indirect; (ii) all liabilities secured by any mortgage, pledge, security
interest, lien, charge, or other encumbrance existing on property owned or
acquired subject thereto, whether or not the liability secured thereby shall
have been assumed; and (iii) all guarantees, endorsements and other contingent
obligations whether direct or indirect in respect of indebtedness of others,
including any obligation to supply funds to or in any manner to invest in,
directly or indirectly, the debtor, to purchase indebtedness, or to assure the
owner of indebtedness against loss, through an agreement to purchase goods,
supplies, or services for the purpose of enabling the debtor to make payment of
the indebtedness held by such owner or otherwise, and the obligations to
reimburse the issuer in respect of any letters of credit.
INTEREST PAYMENT DATE. (i) As to any Base Rate Loan, the last day of the
calendar quarter which includes the Drawdown Date thereof; and (ii) as to any
Eurodollar Rate Loan in respect of which the Interest Period is (A) 3 months or
less, the last day of such Interest Period and (B) more than 3 months, the date
that is 3 months from the first day of such Interest Period and, in addition,
the last day of such Interest Period.
INTEREST PERIOD. With respect to each Loan, (i) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
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of the periods set forth below, as selected by the Borrower in a Loan Request
(A) for any Base Rate Loan, the last day of the calendar quarter; and (B) for
any Eurodollar Rate Loan, 1, 2, 3 or 6 months; and (ii) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable to
such Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; PROVIDED that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(a) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall be extended to the next succeeding Eurodollar
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Eurodollar Business Day;
(b) if any Interest Period with respect to a Base Rate Loan would end
on a day that is not a Business Day, that Interest Period shall end on the
next succeeding Business Day;
(c) if the Borrower shall fail to give notice as provided in
Section 2.7, the Borrower shall be deemed to have requested a conversion of
the affected Eurodollar Rate Loan to a Base Rate Loan and the continuance
of all Base Rate Loans as Base Rate Loans on the last day of the then
current Interest Period with respect thereto;
(d) any Interest Period that begins on the last Eurodollar Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Eurodollar Business Day of a calendar month; and
(e) any Interest Period relating to any Eurodollar Rate Loan that
would otherwise extend beyond the Revolving Credit Loan Maturity Date shall
end on the Revolving Credit Loan Maturity Date.
INTEREST RATIO. For the relevant time of reference thereto, the ratio of
Consolidated Earnings Before Interest and Taxes to Consolidated Total Interest
Expense.
INVESTMENTS. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (i) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (ii) there
shall be included as an Investment all interest accrued with respect to
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Indebtedness constituting an Investment unless and until such interest is paid;
(iii) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (iv) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (ii) may be
deducted when paid; and (v) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
LEASE. Each lease which evidences any Account Receivable included in
Eligible Accounts Receivable.
LETTER OF CREDIT. See Section 3A.1.
LETTER OF CREDIT APPLICATION. See Section 3A.1.1.
LETTER OF CREDIT FEE. See Section 3A.6.
LETTER OF CREDIT PARTICIPATION. See Section 3A.1.4.
LOAN DOCUMENTS. This Credit Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit and the Security Documents.
LOAN REQUEST. See Section 2.6.
LOANS. The Revolving Credit Loans.
MAJORITY BANKS. As of any date, the Banks holding at least sixty-six and
two-thirds percent (66-2/3%) of the outstanding principal amount of the Notes on
such date; and if no such principal is outstanding, the Banks whose aggregate
Commitments constitute at least sixty-six and two-thirds percent (66-2/3%) of
the Total Commitment.
MATURITY DATE. December 31, 1995.
MAXIMUM DRAWING AMOUNT. The maximum aggregate amount from time to time
that the beneficiaries may draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
MULTIEMPLOYER PLAN. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
NET CUSTOMER RECEIVABLES. Gross Customer Receivables less Unearned Income.
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NOTES. The Revolving Credit Notes.
OBLIGATIONS. All indebtedness, obligations and liabilities of any of the
Borrower and its Subsidiaries to any of the Banks and the Agent, individually or
collectively, existing on the date of this Credit Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
or incurred under this Credit Agreement or any of the other Loan Documents or in
respect of any of the Revolving Credit Loans made or Reimbursement Obligations
incurred or any of the Notes, Letter of Credit Applications, Letters of Credit
or other instruments at any time evidencing any thereof.
OBLIGOR. Each Person obligated to make payments under a Contract.
OUTSTANDING. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
PAYMENT RESTRICTION EVENT. Any event identified as a "Payment Restriction
Event" in the definition of such term contained in Section 15 of the Funding
Indenture.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
PERFECTION CERTIFICATES. The Perfection Certificates as defined in the
Security Agreements.
PERMITTED LIENS. Liens, security interests and other encumbrances
permitted by Section 8.2.
PERSON. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
PURCHASE AGREEMENT. The Purchase and Contribution Agreement dated as of
February 6, 1995 by and between Funding II and the Borrower.
PRACTICE RECEIVABLES. Obligations of any kind or nature to the Borrower or
its Subsidiaries (other than Funding and Credident) incurred by Customers in
connection with the acquisition of a medical practice or in connection with the
re-financing of an existing practice.
PRIOR LOAN AGREEMENT. The Revolving Credit Agreement dated as of June 23,
1994 by and among the Borrower, FNBB, BOA and the Agent (as heretofore amended).
RATIO CALCULATION DATE. See Section 2.5.
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REAL ESTATE. All real property at any time owned or leased (as lessee or
sublessee) by the Borrower or any of its Subsidiaries; PROVIDED HOWEVER that the
definition of Real Estate shall not include office space leased by the Borrower
or any of its Subsidiaries in buildings where the Borrower or any of its
Subsidiaries do not occupy more than fifty percent (50%) of such building.
RECORD. The grid attached to a Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note.
REFERENCE BANK. The First National Bank of Boston.
REIMBURSEMENT OBLIGATION. The Borrower's obligation to reimburse the Agent
and the Banks on account of any drawing under any Letter of Credit as provided
in Section 3A.2.
REISSUED CUSTOMER RECEIVABLES. Customer Receivables that are issued by the
Borrower or any of its Subsidiaries (other than Funding and Credident) with
respect to Customer Receivables (i) which have previously been referred to a
collection agency or attorney for collection, (ii) with respect to which
enforcement action against the Customer has previously been commenced or (iii)
the original terms of which have been altered to extend the time for payment or
reduce the interest rate or total indebtedness thereon if such Customer
Receivables are Delinquent at the time of such alteration of terms; provided
that Reissued Customer Receivables shall not include any Customer Receivable
which shall not have been Delinquent at any time within the immediately
preceding twelve months.
RENTAL OBLIGATIONS. All present or future obligations of the Borrower or
any of its Subsidiaries (other than Credident) under any rental agreements or
leases of real or personal property, other than (i) obligations that can be
terminated by the giving of notice without liability to the Borrower or such
Subsidiary in excess of the liability for rent due as of the date on which such
notice is given and under which no penalty or premium is paid as a result of any
such termination, and (ii) obligations in respect of Capitalized Leases.
RESERVES. With respect to any fiscal quarter, the ending allowance for
doubtful accounts (excluding Funding) on the Borrower's balance sheet at the end
of such fiscal quarter, prepared in accordance with generally accepted
accounting principles.
RESIDUAL VALUE OF EQUIPMENT. The aggregate estimated residual value of
equipment at end of lease term of the Borrower and the Subsidiaries (other than
Funding and Credident) as determined in accordance with generally accepted
accounting principles.
REVOLVING CREDIT LOAN MATURITY DATE. December 31, 1995.
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REVOLVING CREDIT LOANS. Revolving credit loans made or to be made by the
Banks to the Borrower pursuant to Section 2.
REVOLVING CREDIT NOTE RECORD. A Record with respect to a Revolving Credit
Note.
REVOLVING CREDIT NOTES. See Section 2.4.
SECURITY AGREEMENTS. The several Security Agreements dated as of the date
hereof between the Borrower and certain of its Subsidiaries and the Agent and in
form and substance satisfactory to the Banks and the Agent.
SECURITY DOCUMENTS. The Guaranty, the Security Agreements and the Stock
Pledge Agreement.
SERVICER EVENT OF DEFAULT. Any event or condition identified as a
"Servicer Event of Default" in Section 12 of the Funding Indenture.
SIS. The Springfield Institution for Savings.
SIS CREDIT AGREEMENT. The practice receivables-backed credit agreement
dated as of April 13, 1995 by and between the Borrower and SIS.
STOCK PLEDGE AGREEMENT. The Stock Pledge Agreement dated as of the date
hereof between the Borrower and the Agent and in form and substance satisfactory
to the Banks and the Agent.
STOCK PURCHASE AGREEMENT. That certain Stock Purchase Agreement dated as
of November 1, 1994 by and among the Borrower and other parties thereto and the
Chemical Bank, as agent.
SUBORDINATED DEBT. Unsecured Indebtedness of the Borrower or any of its
Subsidiaries that is expressly subordinated and made junior to the payment and
performance in full of the Obligations, and evidenced as such by a written
instrument containing subordination provisions in form and substance approved by
the Banks in writing.
SUBSIDIARY. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock.
TOTAL COMMITMENT. The sum of the Commitments of the Banks, as in effect
from time to time.
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TRANSFERRED ASSETS. The accounts, chattel paper, instruments, and other
assets related thereto, comprised in the Collateral which are sold or otherwise
transferred to Funding II pursuant to the Purchase Agreement.
TYPE. As to any Revolving Credit Loan, its nature as a Base Rate Loan or a
Eurodollar Rate Loan.
UNEARNED INCOME. With respect to Customer Receivables any interest
component to be paid by the Customer in the future in connection with such
Customer Receivable which is accounted for by the Borrower as unearned income
under its present accounting practices.
UNIFORM CUSTOMS. With respect to any Letter of Credit, the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, or any successor version thereto adopted by the
Agent in the ordinary course of its business as a letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
UNPAID REIMBURSEMENT OBLIGATION. Any Reimbursement Obligation for which
the Borrower does not reimburse the Agent and the Banks on the date specified
in, and in accordance with, Section 3A.2.
VEHICLE LEASE. Any lease providing for the lease of vehicles to the
Borrower or any of its Subsidiaries.
VOTING STOCK. Stock or similar interests, of any class or classes (however
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
WIND-DOWN EVENT. Any event or condition identified as a "Wind-Down Event"
in Section 7.01 of the Funding II Credit Agreement.
1.2 RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
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(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles applied on a
consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by generally accepted
accounting principles, which terms are defined in the Uniform Commercial
Code as in effect in the Commonwealth of Massachusetts, have the meanings
assigned to them therein, with the term "instrument" being that defined
under Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "Section" refers to that section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like import
shall refer to this Credit Agreement as a whole and not to any particular
section or subdivision of this Credit Agreement.
2. THE REVOLVING CREDIT FACILITY.
2.1 COMMITMENT TO LEND. Subject to the terms and conditions set forth in
this Credit Agreement, each of the Banks severally agrees to lend to the
Borrower and the Borrower may borrow, repay, and reborrow from time to time
between the Closing Date and the Revolving Credit Loan Maturity Date upon notice
by the Borrower to the Agent given in accordance with Section 2.6, such sums as
are requested by the Borrower up to a maximum aggregate principal amount
outstanding (after giving effect to all amounts requested) at any one time equal
to such Bank's Commitment MINUS such Bank's Commitment Percentage of the sum of
the Maximum Drawing Amount and all Unpaid Reimbursement Obligations, PROVIDED
that the sum of the outstanding amount of the Revolving Credit Loans (after
giving effect to all amounts requested) PLUS the Maximum Drawing Amount and all
Unpaid Reimbursement Obligations shall not at any time exceed the lesser of (i)
the Total Commitment and (ii) the Borrowing Base. The Revolving Credit Loans
shall be made PRO RATA in accordance with each Bank's Commitment Percentage.
Each request for a Revolving Credit Loan hereunder shall constitute a
representation and warranty by the Borrower that the conditions set forth in
Section 10 and Section 11, in the case of the initial Revolving Credit Loans to
be made on the Closing Date, and Section 11, in the case of all other Revolving
Credit Loans, have been satisfied on the date of such request.
2.2 COMMITMENT FEE. The Borrower agrees to pay to the Agent for the
accounts of the Banks in accordance with their respective Commitment Percentages
a commitment fee calculated at the rate of three-eighths of one percent (3/8%)
per
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annum on the average daily amount during each calendar quarter or portion
thereof from the Closing Date to the Revolving Credit Loan Maturity Date by
which the Total Commitment MINUS the sum of the Maximum Drawing Amount and all
Unpaid Reimbursement Obligations exceeds the outstanding amount of Revolving
Credit Loans during such calendar quarter. The commitment fee shall be payable
quarterly in arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter commencing on the first such date
following the date hereof, with a final payment on the Revolving Credit Maturity
Date or any earlier date on which the Commitments shall terminate.
2.3 REDUCTION OF TOTAL COMMITMENT. The Borrower shall have the right at
any time and from time to time upon five (5) Business Days prior written notice
to the Agent to reduce by $500,000 or an integral multiple thereof or terminate
entirely the unborrowed portion of the Total Commitment, whereupon the
Commitments of the Banks shall be reduced PRO RATA in accordance with their
respective Commitment Percentages of the amount specified in such notice or, as
the case may be, terminated. Promptly after receiving any notice of the
Borrower delivered pursuant to this Section 2.3, the Agent will notify the Banks
of the substance thereof. Upon the effective date of any such reduction or
termination, the Borrower shall pay to the Agent for the respective accounts of
the Banks the full amount of any commitment fee then accrued on the amount of
the reduction. No reduction of the Commitments may be reinstated.
2.4 THE REVOLVING CREDIT NOTES. The Revolving Credit Loans shall be
evidenced by separate promissory notes of the Borrower in substantially the form
of EXHIBIT B hereto (each a "Revolving Credit Note"), dated as of the Closing
Date and completed with appropriate insertions. One Revolving Credit Note shall
be payable to the order of each Bank in a principal amount equal to such Bank's
Commitment or, if less, the outstanding amount of all Revolving Credit Loans
made by such Bank, plus interest accrued thereon, as set forth below. The
Borrower irrevocably authorizes each Bank to make or cause to be made, at or
about the time of the Drawdown Date of any Revolving Credit Loan or at the time
of receipt of any payment of principal on such Bank's Revolving Credit Note, an
appropriate notation on such Bank's Revolving Credit Note Record reflecting the
making of such Revolving Credit Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Revolving Credit Loans set forth on such
Bank's Revolving Credit Note Record shall be PRIMA FACIE evidence of the
principal amount thereof owing and unpaid to such Bank, but the failure to
record, or any error in so recording, any such amount on such Bank's Revolving
Credit Note Record shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any Revolving Credit Note to make payments of
principal of or interest on any Revolving Credit Note when due.
2.5 INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise provided in
Section 4.11,
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(a) The Borrower shall pay interest on the unpaid principal
amount of each Loan made by the Banks to the Borrower from the Drawdown
Date, until such principal amount is paid in full, at an annual rate equal
to, (i) with respect to any Base Rate Loan, the Base Rate in effect from
time to time PLUS the Applicable Base Rate Margin (as set forth in section
2.5(b)), and (ii) with respect to any Eurodollar Rate Loan, the Eurodollar
Rate in effect for the applicable Interest Period PLUS the Applicable
Eurodollar Rate Margin (as set forth in Section 2.5(b) (the Applicable Base
Rate Margin or the Applicable Eurodollar Rate Margin, whichever is
applicable, is sometimes referred to herein as the "Applicable Margin").
(b) The Applicable Margin shall be the annual percentage rates
in effect from time to time determined in accordance with the following
provisions of this Section 2.5. The Agent shall give notice of the
Applicable Margin to the Borrower and the Banks five (5) Business Days
after the delivery to the Agent of the required quarterly financial
statements and compliance certificate pursuant to Sections 7.4(b) and (c)
which such quarterly financial statements shall include, in reasonable
detail, a calculation of the Interest Ratio as of the date (the "Ratio
Calculation Date") which is the end of the quarterly period covered by such
quarterly financial statements, based on the Interest Ratio for the period
of four (4) fiscal quarters ended on such Ratio Calculation Date, with such
determination of the Applicable Margin to be made in accordance with the
following table:
Applicable
Applicable Base Eurodollar
Rate Margin Rate Margin (per
Interest Ratio (per annum) annum)
-------------- ----------- ------
less than or equal to 1.40:1.00 .50% 2.00%
greater than 1.40:1.00 .25% 1.75%
For the purposes of this Section 2.5, the symbol "less than or equal to"
shall mean "less than or equal to" and the symbol "greater than" shall mean
"greater than".
(c) The Applicable Margin so determined pursuant to the
foregoing table shall become effective as of the date (the "Adjustment
Date") which is the first day of the month which immediately follows the
date of receipt by the Agent of the applicable quarterly financial
statements and Compliance Certificates delivered pursuant to Sections
7.4(b) and (c). The Applicable Margin which becomes effective on each such
Adjustment Date shall remain in effect (subject to the other provisions of
this Section 2.5 and except as otherwise provided in Section 4.11 hereof)
until the next Adjustment Date;
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PROVIDED, HOWEVER, in the event the Borrower fails to deliver to the Agent
and the Banks the quarterly financial statements and Compliance Certificate
in accordance with Sections 7.4(b) and (c) prior to any scheduled
Adjustment Date, the Applicable Margin shall automatically be the highest
Applicable Margin set forth above commencing on the date which would have
otherwise been the next Adjustment Date had such financial statement and
Compliance Certificate been delivered in accordance with Sections 7.4(b)
and (c) and continuing until the next scheduled delivery of financial
statements and Compliance Certificate. Notwithstanding the provisions of
the preceding two sentences, if at any time the Interest Ratio as of any
applicable Ratio Calculation Date was actually a ratio other than that
ratio on the basis of which the Agent determined the rate of interest in
effect hereunder on any date, then such interest rate determination shall
be adjusted retroactively to the appropriate Adjustment Date on the basis
of such corrected determination of the actual Interest Ratio for the four
(4) quarter period ended on such Ratio Calculation Date, and within ten
(10) Business Days after notice thereof in reasonable detail requesting a
retroactive adjustment of interest previously paid given by the Borrower,
the Agent or any Bank, the Borrower shall pay to the Banks, or the Banks
severally, on a ratable basis, shall credit the Borrower with, as the case
may be, the amount of the appropriate retroactive adjustment in respect of
such adjusted interest rate for any portion of any Interest Period as to
which interest has been paid.
(d) The Borrower promises to pay interest on each Loan in
arrears on each Interest Payment Date with respect thereto and at maturity
of such Loan.
2.6 REQUESTS FOR REVOLVING CREDIT LOANS. The Borrower shall give to the
Agent written notice in the form of EXHIBIT C hereto (or telephonic notice
confirmed in a writing in the form of EXHIBIT C hereto) of each Revolving Credit
Loan requested hereunder (a "Loan Request") no less than (i) 1:00 P.M. on the
proposed Drawdown Date of any Base Rate Loan and (ii) three (3) Eurodollar
Business Days prior to the proposed Drawdown Date of any Eurodollar Rate Loan.
Each such notice shall specify (A) the principal amount of the Revolving Credit
Loan requested, (B) the proposed Drawdown Date of such Revolving Credit Loan,
(C) the Interest Period for such Revolving Credit Loan and (D) the Type of such
Revolving Credit Loan. Promptly upon receipt of any such notice, the Agent
shall notify each of the Banks thereof. Each such notice shall be irrevocable
and binding on the Borrower and shall obligate the Borrower to accept the
Revolving Credit Loan requested from the Banks on the proposed Drawdown Date.
Each Loan Request shall be in a minimum aggregate amount of $100,000 or an
integral multiple thereof.
2.7 CONVERSION OPTIONS.
2.7.1 CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN. The
Borrower may elect from time to time to convert any outstanding
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Revolving Credit Loan to a Revolving Credit Loan of another Type, PROVIDED
that (i) with respect to any such conversion of a Revolving Credit Loan to
a Base Rate Loan, the Borrower shall give the Agent written notice prior to
1:00 p.m. on the date of such election; (ii) with respect to any such
conversion of a Eurodollar Rate Loan into a Revolving Credit Loan of
another Type, such conversion shall only be made on the last day of the
Interest Period with respect thereto; (iii) with respect to any such
conversion of a Base Rate Loan to a Eurodollar Rate Loan, the Borrower
shall give the Agent at least three (3) Eurodollar Business Days prior
written notice of such election and (iv) no Loan may be converted into a
Eurodollar Rate Loan when any Default or Event of Default has occurred and
is continuing. On the date on which such conversion is being made each
Bank shall take such action as is necessary to transfer its Commitment
Percentage of such Revolving Credit Loans to its Domestic Lending Office or
its Eurodollar Lending Office, as the case may be. All or any part of
outstanding Revolving Credit Loans of any Type may be converted as provided
herein, PROVIDED that partial conversions shall be in an aggregate
principal amount of $1,000,000 or a whole multiple thereof. Each
Conversion Request relating to the conversion of a Revolving Credit Loan to
a Eurodollar Rate Loan shall be irrevocable by the Borrower.
2.7.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any Revolving
Credit Loans of any Type may be continued as such upon the expiration of an
Interest Period with respect thereto by compliance by the Borrower with the
notice provisions contained in Section 2.7.1; PROVIDED that no Eurodollar
Rate Loan may be continued as such when any Default or Event of Default has
occurred and is continuing, but shall be automatically converted to a Base
Rate Loan on the last day of the first Interest Period relating thereto
ending during the continuance of any Default or Event of Default of which
the officers of the Agent active upon the Borrower's account have actual
knowledge. In the event that the Borrower fails to provide any such notice
with respect to the continuation of any Eurodollar Rate Loan as such, then
such Eurodollar Rate Loan shall be automatically converted to a Base Rate
Loan on the last day of the first Interest Period relating thereto. The
Agent shall notify the Banks promptly when any such automatic conversion
contemplated by this Section 2.7 is scheduled to occur.
2.7.3. EURODOLLAR RATE LOANS. Any conversion to or from Eurodollar
Rate Loans shall be in such amounts and be made pursuant to such elections
so that, after giving effect thereto, the aggregate principal amount of all
Eurodollar Rate Loans having the same Interest Period shall not be less
than $1,000,000 or a whole multiple of $100,000.
2.8. FUNDS FOR REVOLVING CREDIT LOANS.
2.8.1. FUNDING PROCEDURES. Not later than 1:00 p.m. (Boston time) on
the proposed Drawdown Date of any Revolving Credit Loans, each of the
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Banks will make available to the Agent, at its Head Office, in immediately
available funds, the amount of such Bank's Commitment Percentage of the
amount of the requested Revolving Credit Loans. Upon receipt from each
Bank of such amount, and upon receipt of the documents required by Sections
10 and 11 and the satisfaction of the other conditions set forth therein,
to the extent applicable, the Agent will make available to the Borrower the
aggregate amount of such Revolving Credit Loans made available to the Agent
by the Banks. The failure or refusal of any Bank to make available to the
Agent at the aforesaid time and place on any Drawdown Date the amount of
its Commitment Percentage of the requested Revolving Credit Loans shall not
relieve any other Bank from its several obligation hereunder to make
available to the Agent the amount of such other Bank's Commitment
Percentage of any requested Revolving Credit Loans. As an alternative to
the foregoing, advances may be made pursuant to cash management
arrangements satisfactory to the Agent and the Banks.
2.8.2. ADVANCES BY AGENT. The Agent may, unless notified to the
contrary by any Bank prior to a Drawdown Date, assume that such Bank has
made available to the Agent on such Drawdown Date the amount of such Bank's
Commitment Percentage of the Revolving Credit Loans to be made on such
Drawdown Date, and the Agent may (but it shall not be required to), in
reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Bank makes available to the Agent such amount
on a date after such Drawdown Date, such Bank shall pay to the Agent on
demand an amount equal to the product of (i) the average computed for the
period referred to in clause (iii) below, of the weighted average interest
rate paid by the Agent for federal funds acquired by the Agent during each
day included in such period, TIMES (ii) the amount of such Bank's
Commitment Percentage of such Revolving Credit Loans, TIMES (iii) a
fraction, the numerator of which is the number of days that elapse from and
including such Drawdown Date to the date on which the amount of such Bank's
Commitment Percentage of such Revolving Credit Loans shall become
immediately available to the Agent, and the denominator of which is 365. A
statement of the Agent submitted to such Bank with respect to any amounts
owing under this paragraph shall be PRIMA FACIE evidence of the amount due
and owing to the Agent by such Bank. If the amount of such Bank's
Commitment Percentage of such Revolving Credit Loans is not made available
to the Agent by such Bank within three (3) Business Days following such
Drawdown Date, the Agent shall be entitled to recover such amount from the
Borrower on demand, with interest thereon at the rate per annum applicable
to the Revolving Credit Loans made on such Drawdown Date.
2.9. CHANGE IN BORROWING BASE. The Borrowing Base shall be determined
monthly (or at such other interval as may be specified pursuant to
Section 7.4(e)) by the Agent by reference to the Borrowing Base Report delivered
to the Banks and the Agent pursuant to Section 7.4(e).
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3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. MATURITY. The Borrower promises to pay on the Revolving Credit Loan
Maturity Date, and there shall become absolutely due and payable on the
Revolving Credit Loan Maturity Date, all of the Revolving Credit Loans
outstanding on such date, together with any and all accrued and unpaid interest
thereon.
3.2. MANDATORY REPAYMENTS OF REVOLVING CREDIT LOANS. If at any time the
sum of the outstanding amount of the Revolving Credit Loans, the Maximum Drawing
Amount and all Unpaid Reimbursement Obligations exceeds the lesser of (i) the
Total Commitment and (ii) the Borrowing Base, for more than five (5) consecutive
Business Days, then the Borrower shall immediately pay the amount of such excess
to the Agent for the respective accounts of the Banks for application: first,
to any Unpaid Reimbursement Obligations; second, to the Revolving Credit Loans;
and third, to provide to the Agent cash collateral for Reimbursement Obligations
as contemplated by Section 3A.2(b) and (c). Each payment of any Unpaid
Reimbursement Obligations or prepayment of the Revolving Credit Loans shall be
allocated among the Banks, in proportion, as nearly as practicable, to the
Reimbursement Obligation owing to each such Bank or (as the case may be) the
respective unpaid principal amount of each Bank's Revolving Credit Note, with
adjustments to the extent practicable to equalize any prior payments or
repayments not exactly in proportion. In addition, collections of Accounts
Receivable shall be applied to the Revolving Credit Loans pursuant to cash
management arrangements satisfactory to the Agent and the Banks.
3.3. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS. The Borrower shall
have the right, at its election, to repay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without penalty or
premium, PROVIDED that the full or partial prepayment of the outstanding amount
of any Eurodollar Rate Loans pursuant to this Section 3.3 may be made only on
the last day of the Interest Period relating thereto. The Borrower shall give
the Agent, no later than 1:00 p.m., Boston time, on the date of any proposed
repayment written notice, of any proposed repayment pursuant to this Section 3.3
of Base Rate Loans, and three (3) Eurodollar Business Days notice of any
proposed repayment pursuant to this Section 3.3 of Eurodollar Rate Loans, in
each case, specifying the proposed date of payment of Revolving Credit Loans
and the principal amount to be paid. Each such partial prepayment of the Loans
shall be in an integral multiple of $100,000, shall be accompanied by the
payment of accrued interest on the principal repaid to the date of payment and
shall be applied first to the principal of Base Rate Loans and then to the
principal of Eurodollar Rate Loans, at the Borrower's option. Each partial
prepayment shall be allocated among the Banks, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each Bank's Revolving
Credit Note, with adjustments to the extent practicable to equalize any prior
repayments not exactly in proportion.
3A. LETTERS OF CREDIT.
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3A.1. LETTER OF CREDIT COMMITMENTS.
3A.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the terms
and conditions hereof and the execution and delivery by the Borrower of a
letter of credit application on the Agent's customary form (a "Letter of
Credit Application"), the Agent on behalf of the Banks and in reliance upon
the agreement of the Banks set forth in Section 3A.1.4 and upon the
representations and warranties of the Borrower contained herein, agrees, in
its individual capacity, to issue, extend and renew for the account of the
Borrower one or more standby letters of credit (individually, a "Letter of
Credit"), in such form as may be requested by the Borrower and agreed to by
the Agent in order to comply with the requirements of Section 7.2 of the
Stock Purchase Agreement; PROVIDED, HOWEVER, that, after giving effect to
such request, (a) the sum of the aggregate Maximum Drawing Amount and all
Unpaid Reimbursement Obligations shall not exceed Two Million Seven Hundred
Fifty Thousand Dollars ($2,750,000.00) at any one time and (b) the sum of
(i) the Maximum Drawing Amount on all Letters of Credit, (ii) all Unpaid
Reimbursement Obligations, and (iii) the amount of all Loans outstanding
shall not exceed the lesser of (A) the Total Commitment and (B) the
Borrowing Base.
3A.1.2. LETTER OF CREDIT APPLICATIONS. Each Letter of Credit
Application shall be completed to the satisfaction of the Agent. In the
event that any provision of any Letter of Credit Application shall be
inconsistent with any provision of this Credit Agreement, then the
provisions of this Agreement shall, to the extent of any such
inconsistency, govern.
3A.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (i) provide for
the payment of sight drafts for honor thereunder when presented in
accordance with the terms thereof and when accompanied by the documents
described therein and (ii) have an expiry date no later than the date which
is fourteen (14) Business Days prior to the Revolving Credit Loan Maturity
Date. Each Letter of Credit so issued, extended or renewed shall be subject
to the Uniform Customs.
3A.1.4. REIMBURSEMENT OBLIGATIONS OF BANKS. Each Bank severally
agrees that it shall be absolutely liable, without regard to the occurrence
of any Default or Event of Default or any other condition precedent
whatsoever, to the extent of such Bank's Commitment Percentage, to
reimburse the Agent on demand for the amount of each draft paid by the
Agent under each Letter of Credit to the extent that such amount is not
reimbursed by the Borrower pursuant to Section 3A.2 (such agreement for a
Bank being called herein the "Letter of Credit Participation" of such
Bank).
3A.1.5. PARTICIPATIONS OF BANKS. Each such payment made by a Bank
shall be treated as the purchase by such Bank of a participating interest
in the
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Borrower's Reimbursement Obligation under Section 3A.2 in an amount equal
to such payment. Each Bank shall share in accordance with its
participating interest in any interest which accrues pursuant to
Section 3A.2.
3A.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. In order to induce the
Agent to issue, extend and renew each Letter of Credit and the Banks to
participate therein, the Borrower hereby agrees to reimburse or pay to the
Agent, for the account of the Agent or (as the case may be) the Banks, with
respect to each Letter of Credit issued, extended or renewed by the Agent
hereunder,
(a) except as otherwise expressly provided in Section 3A.2(b) and
(c), on each date that any draft presented under such Letter of Credit is
honored by the Agent, or the Agent otherwise makes a payment under or
pursuant to such Letter of Credit, (i) the amount paid by the Agent under
or pursuant to such Letter of Credit, and (ii) the amount of any customary
taxes, fees, charges or other reasonable costs and expenses whatsoever
incurred by the Agent or any Bank in connection with any payment made by
the Agent or any Bank under, or pursuant to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total Commitment
to an amount less than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Agent for the benefit of the
Banks and the Agent as cash collateral for all Reimbursement Obligations,
and
(c) upon the termination of the Total Commitment or the acceleration
of the Reimbursement Obligations with respect to all Letters of Credit in
accordance with Section 12, an amount equal to the then Maximum Drawing
Amount of all Letters of Credit, which amount shall be held by the Agent
for the benefit of the Banks and the Agent as cash collateral for all
Reimbursement Obligations.
Each such payment shall be made to the Agent at the Agent's Head Office in
immediately available funds. Interest on any and all amounts remaining unpaid
by the Borrower under this Section 3A.2 at any time from the date such amounts
become due and payable (whether as stated in this Section 3A.2, by acceleration
or otherwise) until payment in full (whether before or after judgment) shall be
payable to the Agent on demand at the rate specified in Section 4.11 for overdue
principal of the Loans.
3A.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or other
demand for payment shall be made under any Letter of Credit, the Agent shall
notify the Borrower of the date and amount of the draft presented or demand for
payment and of the date and time when it expects to pay such draft or honor such
demand for payment. If the Borrower fails to reimburse the Agent as provided in
Section 3A.2 on or before the date that such draft is paid or other payment is
made by the Agent, the Agent may at any time thereafter notify the Banks of the
amount of any such Unpaid
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Reimbursement Obligation. No later than 3:00 p.m. (Boston time) on the Business
Day next following the receipt of such notice, each Bank shall make available to
the Agent, at its Head Office, in immediately available funds, such Bank's
Commitment Percentage of such Unpaid Reimbursement Obligation, together with an
amount equal to the product of (i) the average, computed for the period referred
to in clause (iii) below, of the weighted average interest rate paid by the
Agent for federal funds acquired by the Agent during each day included in such
period, TIMES (ii) the amount equal to such Bank's Commitment Percentage of such
Unpaid Reimbursement Obligation, TIMES (iii) a fraction, the numerator of which
is the number of days that elapse from and including the date the Agent paid the
draft presented for honor or otherwise made payment up to but excluding the date
on which such Bank's Commitment Percentage of such Unpaid Reimbursement
Obligation shall become immediately available to the Agent, and the denominator
of which is 360. The responsibility of the Agent to the Borrower and the Banks
shall be only to determine that the documents (including each draft) delivered
under each Letter of Credit in connection with such presentment shall be in
conformity in all material respects with such Letter of Credit.
3A.4. OBLIGATIONS ABSOLUTE. The Borrower's obligations under this Section
3A shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Agent, any Bank or any
beneficiary of a Letter of Credit. The Borrower further agrees with the Agent
and the Banks that the Agent and the Banks shall not be responsible for, and
the Borrower's Reimbursement Obligations under Section 3A.2 shall not be
affected by, among other things, the validity or genuineness of documents or of
any endorsements thereon, even if such documents should in fact prove to be in
any or all respects invalid, fraudulent or forged, or any dispute between or
among the Borrower, the beneficiary of any Letter of Credit or any financing
institution or other party to which any Letter of Credit may be transferred or
any claims or defenses whatsoever of the Borrower against the beneficiary of any
Letter of Credit or any such transferee. The Agent and the Banks shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit. The Borrower agrees that any action taken or omitted by
the Agent or any Bank under or in connection with each Letter of Credit and the
related drafts and documents, if done in good faith, shall be binding upon the
Borrower and shall not result in any liability on the part of the Agent or any
Bank to the Borrower.
3A.5. RELIANCE BY ISSUER. To the extent not inconsistent with Section
3A.4, the Agent shall be entitled to rely, and shall be fully protected in
relying upon, any Letter of Credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal
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counsel, independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action
requested by the Majority Banks unless it shall first have received such advice
or concurrence of the Majority Banks as it reasonably deems appropriate or it
shall first be indemnified to its reasonable satisfaction by the Banks against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Majority Banks, and such request and any action
taken or failure to act pursuant thereto shall be binding upon the Banks and all
future holders of the Revolving Credit Notes or of a Letter of Credit
Participation.
3A.6. LETTER OF CREDIT FEE. The Borrower shall, on the date of issuance
or any extension or renewal of any Letter of Credit and at such other time or
times as such charges are customarily made by the Agent, pay a fee (in each
case, a "Letter of Credit Fee") to the Agent in respect of each Letter of Credit
equal to the Applicable Rate (as defined below) per annum of the face amount of
such Letter of Credit, PLUS the Agent's customary issuance fee. For the
purposes of this Section 3A.6, "Applicable Rate" shall mean the percentage rate
per annum then in effect that the Borrower would pay with respect to Eurodollar
Rate Loans as the applicable margin over the Eurodollar Rate as set forth in
Section 2.5 of this Credit Agreement.
4. CERTAIN GENERAL PROVISIONS.
4.1. CLOSING FEE. The Borrower agrees to pay to the Banks on the Closing
Date a closing fee ("Closing Fee") in the amount previously agreed to by the
Borrower and the Banks.
4.2. AGENT'S FEE. The Borrower shall pay to the Agent semi-annually in
advance, for the Agent's own account, an Agent's fee in the amount and at the
times specified in the letter agreement, dated the Closing Date, between the
Borrower and the Agent.
4.3. FUNDS FOR PAYMENTS.
4.3.1. PAYMENTS TO AGENT. All payments of principal, interest,
Reimbursement Obligations, Letter of Credit Fees, commitment fees and any
other amounts due hereunder or under any of the other Loan Documents shall
be made to the Agent, for the respective accounts of the Banks and the
Agent, at the Agent's Head Office or at such other location in the Boston,
Massachusetts, area that the Agent may from time to time designate, in each
case in immediately available funds.
4.3.2. NO OFFSET, ETC. All payments by the Borrower hereunder and
under any of the other Loan Documents shall be made without setoff or
counterclaim and free and clear of and without deduction for any taxes,
levies,
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imposts, duties, charges, fees, deductions, withholdings, compulsory loans,
restrictions or conditions of any nature now or hereafter imposed or levied
by any jurisdiction or any political subdivision thereof or taxing or other
authority therein unless the Borrower is compelled by law to make such
deduction or withholding. If any such obligation is imposed upon the
Borrower with respect to any amount payable by it hereunder or under any of
the other Loan Documents, the Borrower will pay to the Agent, for the
account of the Banks or (as the case may be) the Agent, on the date on
which such amount is due and payable hereunder or under such other Loan
Document, such additional amount in Dollars as shall be necessary to enable
the Banks or the Agent to receive the same net amount which the Banks or
the Agent would have received on such due date had no such obligation been
imposed upon the Borrower. The Borrower will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other charges
deducted from or paid with respect to payments made by the Borrower
hereunder or under such other Loan Document.
4.4. COMPUTATIONS. All computations of interest on the Loans and of
commitment fees and Letter of Credit Fees shall, unless otherwise expressly
provided herein, be based on a 360-day year and paid for the actual number of
days elapsed. Except as otherwise provided in the definition of the term
"Interest Period" with respect to Eurodollar Rate Loans, whenever a payment
hereunder or under any of the other Loan Documents becomes due on a day that is
not a Business Day, the due date for such payment shall be extended to the next
succeeding Business Day, and interest shall accrue during such extension. The
outstanding amount of the Loans as reflected on the Revolving Credit Note
Records from time to time shall be considered correct and binding on the
Borrower unless within five (5) Business Days after receipt of any notice by the
Agent or any of the Banks of such outstanding amount, the Agent or such Bank
shall notify the Borrower to the contrary.
4.5. INABILITY TO DETERMINE EURODOLLAR RATE. In the event, prior to the
commencement of any Interest Period relating to any Eurodollar Rate Loan, the
Agent shall determine that adequate and reasonable methods do not exist for
ascertaining the Eurodollar Rate that would otherwise determine the rate of
interest to be applicable to any Eurodollar Rate Loan during any Interest
Period, the Agent shall forthwith give notice of such determination (which shall
be conclusive and binding on the Borrower and the Banks) to the Borrower and the
Banks. In such event (i) any Loan Request or Conversion Request with respect to
Eurodollar Rate Loans shall be automatically withdrawn and shall be deemed a
request for Base Rate Loans, (ii) each Eurodollar Rate Loan will automatically,
on the last day of the then current Interest Period thereof, become a Base Rate
Loan, and (iii) the obligations of the Banks to make Eurodollar Rate Loans shall
be suspended until the Agent determines that the circumstances giving rise to
such suspension no longer exist, whereupon the Agent shall so notify the
Borrower and the Banks.
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4.6. ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank to make or maintain
Eurodollar Rate Loans, such Bank shall forthwith give notice of such
circumstances to the Borrower and the other Banks and thereupon (i) the
commitment of such Bank to make Eurodollar Rate Loans or convert Loans of
another Type to Eurodollar Rate Loans shall forthwith be suspended and (ii) such
Bank's Revolving Credit Loans then outstanding as Eurodollar Rate Loans, if any,
shall be converted automatically to Base Rate Loans on the last day of each
Interest Period applicable to such Eurodollar Rate Loans or within such earlier
period as may be required by law. The Borrower hereby agrees promptly to pay
the Agent for the account of such Bank, upon demand by such Bank, any additional
amounts necessary to compensate such Bank for any costs incurred by such Bank in
making any conversion in accordance with this Section 4.6, including any
interest or fees payable by such Bank to lenders of funds obtained by it in
order to make or maintain its Eurodollar Loans hereunder.
4.7. ADDITIONAL COSTS, ETC. If any present or future applicable law,
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank or the Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Credit Agreement, the other Loan Documents, any Letters of Credit, such
Bank's Commitment or the Loans or deposits obtained to fund Loans or
Letters of Credit (other than taxes based upon or measured by the net
profit or income of such Bank or the Agent); or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Bank of the principal of or
the interest on the Loans or any other amounts payable to any Bank or the
Agent under this Credit Agreement or the other Loan Documents; or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Credit Agreement) any special
deposit, assessment, liquidity, capital adequacy, or reserve or other
similar requirement (whether or not having the force of law) against assets
held by, or deposits in or for the account of, or loans by, or letters of
credit issued by, or commitments of an office of any Bank; or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
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Documents, the Letters of Credit, the Loans, such Bank's Commitment, or any
class of loans, letters of credit or commitments of which any of the Loans,
the Letters of Credit, or such Bank's Commitment forms a part, and the
result of any of the foregoing is
(i) to increase the cost to any Bank of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such
Bank's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest, Reimbursement
Obligation or other amount payable to such Bank or the Agent hereunder
on account of such Bank's Commitment, any Letter of Credit or any of
the Loans, or
(iii) to require such Bank or the Agent to make any payment or
to forego any interest or Reimbursement Obligation or other sum
payable hereunder, the amount of which payment or foregone interest or
Reimbursement Obligation or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by such Bank
or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon written demand
made by such Bank or (as the case may be) the Agent at any time and from
time to time and as often as the occasion therefor may arise, pay to such
Bank or the Agent such additional amounts as will be sufficient to
compensate the Bank or the Agent for such additional cost, reduction,
payment or foregone interest, Reimbursement Obligation or other sum.
4.8. CAPITAL ADEQUACY. If after the date hereof any Bank or the Agent
determines that (i) the adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) regarding capital requirements for banks or bank holding companies or any
change in the interpretation or application thereof by a court or governmental
authority with appropriate jurisdiction, or (ii) compliance by such Bank or the
Agent or any corporation controlling such Bank or the Agent with any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) of any such entity regarding capital adequacy, has the
effect of reducing the return on such Bank's or the Agent's commitment with
respect to any Loans to a level below that which such Bank or the Agent could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's or the Agent's then existing policies with respect to
capital adequacy and assuming full utilization of such entity's capital) by any
amount deemed by such Bank or (as the case may be) the Agent to be material,
then such Bank or the Agent may notify the Borrower of such fact. To the extent
that the amount of such reduction in the return on capital is not reflected in
the Base Rate, the Borrower agrees to pay such Bank or (as the case may be) the
Agent for the amount of such reduction in the return on capital as and when such
reduction
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is determined upon presentation by such Bank or (as the case may be) the Agent
of a certificate in accordance with Section 4.9 hereof. Each Bank shall
allocate such cost increases among its customers in good faith and on an
equitable basis.
4.9. CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to Section 4.7 or 4.8 and a brief explanation of such amounts
which are due, submitted by any Bank or the Agent to the Borrower, shall be
conclusive, absent manifest error, that such amounts are due and owing.
4.10. INDEMNITY. The Borrower agrees to indemnify each Bank and to hold
each Bank harmless from and against any loss, cost or expense (including loss of
anticipated profits) that such Bank may sustain or incur as a consequence of (i)
default by the Borrower in payment of the principal amount of or any interest on
any Eurodollar Rate Loans as and when due and payable, including any such loss
or expense arising from interest or fees payable by such Bank to lenders of
funds obtained by it in order to maintain its Eurodollar Rate Loans, (ii)
default by the Borrower in making a borrowing after the Borrower has given (or
is deemed to have given) a Loan Request or a Conversion Request relating thereto
in accordance with Section 2.6 or Section 2.7 or (iii) the making of any payment
of a Eurodollar Rate Loan or the making of any conversion of any such Loan to a
Base Rate Loan on a day that is not the last day of the applicable Interest
Period with respect thereto, including interest or fees payable by such Bank to
lenders of funds obtained by it in order to maintain any such Loans.
4.11. OVERDUE AMOUNTS. Overdue principal and (to the extent permitted by
applicable law) interest on the Loans and all other overdue amounts payable
hereunder or under any of the other Loan Documents shall bear interest
compounded monthly and payable on demand at a rate per annum equal to two
percent (2%) above the Base Rate until such amount shall be paid in full (after
as well as before judgment).
5. SECURITY AND GUARANTIES.
5.1. SECURITY OF BORROWER. The Obligations shall be secured by a
perfected first priority security interest (subject only to Permitted Liens
entitled to priority under applicable law) in all of the assets of the Borrower
(other than Transferred Assets and the assets listed on Schedule 8.2(m)),
whether now owned or hereafter acquired, and a pledge of and perfected first
priority lien on all of the issued and outstanding shares of each of the
Borrower's Subsidiaries (other than Funding and Credident) pursuant to the terms
of the Security Documents to which the Borrower is a party.
5.2. GUARANTIES AND SECURITY OF SUBSIDIARIES. The Obligations shall also
be guaranteed pursuant to the terms of the Guaranty. The obligations of the
Borrower's Subsidiaries under the Guaranty shall be in turn secured by a
perfected first priority security interest (subject only to Permitted Liens
entitled to priority under applicable
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law) in all of the assets of each such Subsidiary, whether now owned or
hereafter acquired, pursuant to the terms of the Security Documents to which
such Subsidiary is a party.
6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Banks and the Agent as follows:
6.1. CORPORATE AUTHORITY.
6.1.1. INCORPORATION; GOOD STANDING. Each of the Borrower and its
Subsidiaries (i) is a corporation duly organized, validly existing and in
good standing under the laws of its state of incorporation, (ii) has all
requisite corporate power to own its property and conduct its business as
now conducted and as presently contemplated, and (iii) is in good standing
as a foreign corporation and is duly authorized to do business in each
jurisdiction where such qualification is necessary except where a failure
to be so qualified would not have a materially adverse effect on the
business, assets or financial condition of the Borrower or its Subsidiaries
taken as a whole.
6.1.2. AUTHORIZATION. The execution, delivery and performance of
this Credit Agreement and the other Loan Documents to which the Borrower or
any of its Subsidiaries is or is to become a party and the transactions
contemplated hereby and thereby (i) are within the corporate authority of
such Person, (ii) have been duly authorized by all necessary corporate
proceedings, (iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to which
the Borrower or any of its Subsidiaries is subject or any judgment, order,
writ, injunction, license or permit applicable to the Borrower or any of
its Subsidiaries and (iv) do not conflict with any provision of the
corporate charter or bylaws of, or any agreement or other instrument
binding upon, the Borrower or any of its Subsidiaries.
6.1.3. ENFORCEABILITY. The execution and delivery of this Credit
Agreement and the other Loan Documents to which the Borrower or any of its
Subsidiaries is or is to become a party will result in valid and legally
binding obligations of such Person enforceable against it in accordance
with the respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement
of creditors' rights and except to the extent that availability of the
remedy of specific performance or injunctive relief is subject to the
discretion of the court before which any proceeding therefor may be
brought.
6.2. GOVERNMENTAL APPROVALS. The execution, delivery and performance by
the Borrower and any of its Subsidiaries of this Credit Agreement and the other
Loan
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Documents to which the Borrower or any of its Subsidiaries is or is to become a
party and the transactions contemplated hereby and thereby do not require the
approval or consent of, or filing with, any governmental agency or authority
other than those already obtained except to the extent financing statements are
required to be filed to perfect the security interest granted pursuant to the
Security Documents.
6.3. TITLE TO PROPERTIES; LEASES. Except as indicated on SCHEDULE 6.3
hereto, the Borrower and its Subsidiaries own all of the assets reflected in the
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date or acquired since that date (except property and assets sold
or otherwise disposed of in the ordinary course of business since that date),
subject to no rights of others, including any mortgages, leases, conditional
sales agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.
6.4. FINANCIAL STATEMENTS AND PROJECTIONS.
6.4.1. FINANCIAL STATEMENTS. There has been furnished to the Agent a
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date, and a consolidated statement of income for the fiscal
year then ended, certified by the Borrower's independent certified public
accountants. Such balance sheet and statement of income have been prepared
in accordance with generally accepted accounting principles and fairly
present the financial condition of the Borrower as at the close of business
on the date thereof and the results of operations for the fiscal year then
ended. Other than as set forth on SCHEDULE 6.4.1, there are no contingent
liabilities of the Borrower or any of its Subsidiaries as of such date
involving material amounts and of a nature customarily reflected on a
balance sheet in accordance with generally accepted accounting principles
consistently applied, known to the officers of the Borrower not disclosed
in said balance sheet and the related notes thereto.
6.4.2. PROJECTIONS. The projections of the annual operating budgets
of the Borrower and its Subsidiaries (other than Credident) on a
consolidated basis, balance sheets and cash flow statements for the 1994
and 1995 fiscal years, copies of which have been delivered to each Bank,
disclose all assumptions made with respect to general economic, financial
and market conditions used in formulating such projections. To the
knowledge of the Borrower or any of its Subsidiaries, no facts exist that
(individually or in the aggregate) would result in any material change in
any of such projections. The projections are based upon reasonable
estimates and assumptions, have been prepared on the basis of the
assumptions stated therein and reflect the reasonable estimates of the
Borrower and its Subsidiaries of the results of operations and other
information projected therein.
6.5. NO MATERIAL ADVERSE CHANGES, ETC. Since the Balance Sheet Date there
has occurred no materially adverse change in the financial condition or business
of
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the Borrower and its Subsidiaries as shown on or reflected in the consolidated
balance sheet of the Borrower and its Subsidiaries as at the Balance Sheet Date,
or the consolidated statement of income for the fiscal year then ended, other
than changes in the ordinary course of business that have not had any materially
adverse effect in the aggregate on the business or financial condition of the
Borrower and its Subsidiaries. Since the Balance Sheet Date, the Borrower has
not made any Distribution.
6.6. FRANCHISES, PATENTS, COPYRIGHTS, ETC. Each of the Borrower and its
Subsidiaries possesses all franchises, patents, copyrights, trademarks, trade
names, licenses and permits, and rights in respect of the foregoing, adequate
for the conduct of its business substantially as now conducted without known
conflict with any rights of others.
6.7. LITIGATION. Other than as set forth on SCHEDULE 6.7, there are no
actions, suits, proceedings or investigations of any kind pending, or to the
knowledge of the Borrower, threatened against the Borrower or any of its
Subsidiaries before any court, tribunal or administrative agency or board that,
if adversely determined, might, either in any case or in the aggregate,
materially adversely affect the properties, assets, financial condition or
business of the Borrower and its Subsidiaries, taken as a whole, or materially
impair the right of the Borrower and its Subsidiaries, considered as a whole, to
carry on business substantially as now conducted by them, or result in any
substantial liability not adequately covered by insurance, or for which adequate
reserves are not maintained on the consolidated balance sheet of the Borrower,
or which question the validity of this Credit Agreement or any of the other Loan
Documents, or any action taken or to be taken pursuant hereto or thereto. For
purpose of this Section 6.7, any counterclaim by a Customer in response to a
collection action shall not be deemed to be material unless such counterclaim is
reasonably likely to result in an uninsured liability in excess of $500,000.
6.8. NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Borrower nor any
of its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation that has or is
expected in the future to have a materially adverse effect on the business,
assets or financial condition of the Borrower and its Subsidiaries, taken as a
whole. Neither the Borrower nor its Subsidiaries is a party to any contract or
agreement that has or is expected, in the judgment of the Borrower's officers,
to have any materially adverse effect on the business of the Borrower and its
Subsidiaries, taken as a whole.
6.9. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the Borrower
nor any of its Subsidiaries is in violation of any provision of its charter
documents, bylaws, or any agreement or instrument to which it may be subject or
by which it or any of its properties may be bound or any decree, order,
judgment, statute, license, rule or regulation, in any of the foregoing cases in
a manner that could materially and adversely affect the financial condition,
properties or business of the Borrower or any of its Subsidiaries.
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6.10. TAX STATUS. The Borrower and its Subsidiaries (i) have made or
filed (or timely filed an extension to file) all federal and state income and
all other tax returns, reports and declarations required by any jurisdiction to
which any of them is subject or an extension to file has been timely filed, (ii)
have paid all taxes and other governmental assessments and charges shown or
determined to be due on such returns, reports and declarations, except those
being contested in good faith and by appropriate proceedings and (iii) have set
aside on their books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or
declarations apply. There are no unpaid taxes in any material amount claimed to
be due by the taxing authority of any jurisdiction, and the officers of the
Borrower know of no basis for any such claim.
6.11. NO EVENT OF DEFAULT. No Default or Event of Default has occurred
and is continuing.
6.12. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or an "affiliated company" or a "principal underwriter" of
an "investment company", as such terms are defined in the Investment Company Act
of 1940.
6.13. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry, or other public office, that purports to cover, affect
or give notice of any present or possible future lien on, or security interest
in, any assets or property of the Borrower or any of its Subsidiaries or rights
thereunder.
6.14. PERFECTION OF SECURITY INTEREST. All filings, assignments, pledges
and deposits of documents or instruments have been made and all other actions
have been taken that are necessary or advisable, under applicable law, to
establish and perfect the Agent's security interest in the Collateral. The
Collateral and the Agent's rights with respect to the Collateral are not subject
to any setoff, claims, withholdings or other defenses other than Permitted
Liens. The Borrower and its Subsidiaries (other than Funding and Credident) are
the owners of the Collateral free from any lien, security interest, encumbrance
and any other claim or demand, except for Permitted Liens.
6.15. CERTAIN TRANSACTIONS. Except for arm's length transactions pursuant
to which the Borrower or any of its Subsidiaries makes payments in the ordinary
course of business upon terms no less favorable than the Borrower or such
Subsidiary could obtain from third parties, none of the officers, directors, or
employees of the Borrower or any of its Subsidiaries is presently a party to any
transaction with the Borrower or any of its Subsidiaries (other than for
services as employees, officers and
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directors), including any contract, agreement or other arrangement providing
for the furnishing of services to or by, providing for rental of real or
personal property to or from, or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Borrower, any
corporation, partnership, trust or other entity in which any officer, director,
or any such employee has a substantial interest or is an officer, director,
trustee or partner.
6.16. EMPLOYEE BENEFIT PLANS.
6.16.1. IN GENERAL. Each Employee Benefit Plan has been maintained
and operated in compliance in all material respects with the provisions of
ERISA and, to the extent applicable, the Code, including but not limited to
the provisions thereunder respecting prohibited transactions. Neither the
Borrower nor any ERISA Affiliate maintains or contributes to any Guaranteed
Pension Plan.
6.16.2. TERMINABILITY OF WELFARE PLANS. Under each Employee Benefit
Plan which is an employee welfare benefit plan within the meaning of
Section 3(1) or Section 3(2)(B) of ERISA, no benefits are due unless the
event giving rise to the benefit entitlement occurs prior to plan
termination (except as required by Title I, Part 6 of ERISA). The Borrower
or an ERISA Affiliate, as appropriate, may terminate each such Plan at any
time (or at any time subsequent to the expiration of any applicable
bargaining agreement) in the discretion of the Borrower or such ERISA
Affiliate without liability to any Person.
6.16.3. GUARANTEED PENSION PLANS. Neither the Borrower or any ERISA
Affiliate maintains or contributes to any Guaranteed Pension Plan.
6.16.4. MULTIEMPLOYER PLANS. Neither the Borrower nor any ERISA
Affiliate has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under Section 4201 of ERISA or as a
result of a sale of assets described in Section 4204 of ERISA. Neither the
Borrower nor any ERISA Affiliate has been notified that any Multiemployer
Plan is in reorganization or insolvent under and within the meaning of
Section 4241 or Section 4245 of ERISA or that any Multiemployer Plan
intends to terminate or has been terminated under Section 4041A of ERISA.
6.17. REGULATIONS U AND X. The proceeds of the Loans shall be used for
working capital purposes, except to the extent permitted by Section 7.12 of this
Agreement. The Borrower will obtain Letters of Credit solely for the purpose of
complying with the requirements of Section 7.2 of the Stock Purchase Agreement.
No portion of any Loan which is to be used for the purpose of purchasing or
carrying any "margin security" or "margin stock" will be secured directly or
indirectly by "margin security" or "margin stock" as such terms are used in
Regulations U and X of the Board of Governors of the Federal Reserve System,
12 C.F.R. Parts 221 and 224.
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6.18 ENVIRONMENTAL COMPLIANCE. The Borrower has taken all necessary steps
to investigate the past and present condition and usage of the Real Estate and
the operations conducted thereon and, based upon such diligent investigation,
has determined that:
(a) none of the Borrower or any of its Subsidiaries is in violation,
or alleged violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and Recovery Act
("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any state or
local statute, regulation, ordinance, order or decree relating to health,
safety or the environment (hereinafter "Environmental Laws"), which
violation would have a material adverse effect on the environment or the
business, assets or financial condition of the Borrower or any of its
Subsidiaries;
(b) neither the Borrower nor any of its Subsidiaries has received
notice from any third party including, without limitation: any federal,
state or local governmental authority, (i) that any one of them has been
identified by the United States Environmental Protection Agency ("EPA) as a
potentially responsible party under CERCLA with respect to a site listed on
the National Priorities List, 40 C.F.R. Part 300 Appendix B; (ii) that any
hazardous waste, as defined by 42 U.S.C. Section 6903(5), any hazardous
substances as defined by 42 U.S.C. Section 9601(14), any pollutant or
contaminant as defined by 42 U.S.C. Section 9601(33) and any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Substances") which any one
of them has generated, transported or disposed of has been found at any
site at which a federal, state or local agency or other third party has
conducted or has ordered that the Borrower or any of its Subsidiaries
conduct a remedial investigation, removal or other response action pursuant
to any Environmental Law; or (iii) that it is or shall be a named party to
any claim, action, cause of action, complaint, or legal or administrative
proceeding (in each case, contingent or otherwise) arising out of any third
party's incurrence of costs, expenses, losses or damages of any kind
whatsoever in connection with the release of Hazardous Substances;
(c) except as set forth on SCHEDULE 6.18 attached hereto: (i) no
portion of the Real Estate has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance with
applicable Environmental Laws; and no underground tank or other underground
storage receptacle for Hazardous Substances is located on any portion of
the Real Estate; (ii) in the course of any activities conducted by the
Borrower or any of its Subsidiaries, no Hazardous Substances have been
generated or are being used on the Real Estate except in accordance with
applicable Environmental
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Laws; (iii) there have been no releases (i.e. any past or present
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, disposing or dumping) or threatened
releases of Hazardous Substances on, upon, into or from the properties of
the Borrower or its Subsidiaries, which releases would have a material
adverse effect on the value of any of the Real Estate or adjacent
properties or the environment; (iv) to the best of the Borrower's
knowledge, there have been no releases on, upon, from or into any real
property in the vicinity of any of the Real Estate which, through soil or
groundwater contamination, may have come to be located on, and which would
have a material adverse effect on the value of, the Real Estate; and (v) in
addition, any Hazardous Substances that have been generated on any of the
Real Estate have been transported offsite only by carriers having an
identification number issued by the EPA, treated or disposed of only by
treatment or disposal facilities maintaining valid permits as required
under applicable Environmental Laws, which transporters and facilities have
been and are, to the best of the Borrower's knowledge, operating in
compliance with such permits and applicable Environmental Laws; and
(d) None of the Borrower and its Subsidiaries, or any of the Real
Estate is subject to any applicable environmental law requiring the
performance of Hazardous Substances site assessments, or the removal or
remediation of Hazardous Substances, or the giving of notice to any
governmental agency or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby or to the
effectiveness of any other transactions contemplated hereby.
6.19. SUBSIDIARIES, ETC. Funding, Credident and ACFC are the only
Subsidiaries of the Borrower. Except as set forth on SCHEDULE 6.19 hereto,
neither the Borrower nor any Subsidiary of the Borrower is engaged in any joint
venture or partnership with any other person.
6.20. BANK ACCOUNTS. SCHEDULE 6.20 sets forth the account numbers and
location of all bank accounts of the Borrower or any of its Subsidiaries;
PROVIDED, HOWEVER, that the Borrower, ACFC and Funding may maintain bank
accounts not listed on SCHEDULE 6.20 so long as the aggregate amount contained
in such accounts does not exceed $100,000.
SECTION 6.21. ELIGIBLE ACCOUNTS RECEIVABLE, EQUIPMENT AND CONTRACTS. Each
Account Receivable of the Borrower included in Eligible Accounts Receivable
meets the following criteria:
(a) The Borrower is the sole legal owner of the Accounts Receivable,
the Contracts and the Equipment (or will have a first priority
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security interest in the Equipment), free and clear of all liens other than
Permitted Liens.
(b) Each of the Contracts is a legal, valid and binding full recourse
obligation of the Obligor thereunder, enforceable by the Borrower and its
assigns against such Obligor in accordance with the terms thereof, except
as such enforcement may be limited by bankruptcy, insolvency,
reorganization or similar laws relating to or affecting the enforcement of
creditors' rights generally and by any and all applicable requirements of
any federal, state or local law including, without limitation, usury,
truth-in-lending and equal credit opportunity laws applicable to each
Contract have been complied with.
(c) The Borrower and, to the best of the Borrower's knowledge, the
other parties to such contract, had all requisite authority and capacity to
enter into such Contract; and no Obligor has been released, in whole or in
part, from any of its obligations in respect of any Contract.
(d) Except as enforcement may be limited by bankruptcy, insolvency,
reorganization or similar laws relating to or affecting the enforcement of
creditors' rights generally and by equitable principles, the obligation of
each Obligor to pay all amounts owed under each of the Contracts to which
such Obligor is a party throughout the term thereof is and will be
unconditional, without any right of set-off or counterclaim or any defense
by such Obligor, and without regard to any event affecting the Equipment,
if any, subject to such Contract, any claim of such Obligor against the
Borrower or any change in circumstance of such Obligor or any other
circumstance whatsoever.
(e) There will be no facts or circumstances existing as of the
relevant time which give rise to any right of rescission, offset,
counterclaim or defense, including the defense of usury, to the obligations
of any Obligor, including the obligation of such Obligor to pay all amounts
due thereunder, with respect to any Contract to which such Obligor is a
party; and neither the operation of any of the terms of any Contract nor
the exercise of any right thereunder will render such Contract nor the
exercise of any right thereunder will render such Contract unenforceable in
whole or in part or subject to any right of rescission, offset,
counterclaim or defense, including the defense of usury (other than
limitations on enforcement as a result of bankruptcy, insolvency,
reorganization or similar laws relating to or affecting the enforcement of
creditors' rights generally and by general equitable principles), and no
such right of rescission, offset, counterclaim or defense has been asserted
with respect thereto.
(f) No Contract, and no provision of any Contract, has been amended,
terminated, altered, waived or modified since inception in any respect that
is adverse to the interests of the Borrower except for reissues that
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are consistent with Borrower's past practices, no Contract has been
satisfied, cancelled or subordinated, in whole or in part, or rescinded,
nor has any instrument been executed that would effect any such
satisfaction, cancellation, subordination or rescission, except for
Contracts that have been prepaid in full.
(g) No Obligor has been released by the Borrower from the terms of
the related Contract.
(h) Each Contract was originated or acquired in the Borrower's
ordinary course of business, in accordance with the Borrower's Credit
Policy. Each Contract is of a type customarily in use in the leasing or
financing business and has not been found, in the Agent's reasonable
judgment, to be unacceptable.
(i) Each Obligor is a resident of the United States of America and is
not the Borrower or an Affiliate of the Borrower.
(j) Each Lease requires the Obligor to assume all risk of loss or
malfunction of the related Equipment. Each Lease and Conditional Sale
Agreement requires the Obligor to pay all sales, use, property, excise and
other similar taxes imposed on or with respect to the related Equipment and
permits the rights with respect to such Contract, and all collateral
related thereto, to be assigned by the Borrower without the consent of any
Person. No Contract permits early termination or prepayment, unless the
amount required to be paid by or on behalf of Obligor in respect thereof is
equal to or greater than the applicable termination amount. No Contract
provides for the substitution, exchange or addition of any Equipment
subject thereto which would result in any reduction of the amount of
payments or change the timing of payments due under such Contract.
(k) There are no proceedings or investigations pending against the
Borrower or, to the best of the Borrower's knowledge, threatened or
otherwise pending before any court, regulatory body, administrative agency
or other tribunal or government instrumentality (A) asserting the
invalidity or unenforceability of any Contract, (B) seeking to prevent
payment and performance of any Contract, or (C) seeking any determination
or ruling that might, in the aggregate, adversely and materially affect the
validity or enforceability of any Contract.
(l) The Borrower has duly performed all material obligations on its
part required to be performed by it under or in connection with each
Contract, and has done nothing to materially impair its rights thereunder.
(m) Each Contract is either an "account" (as defined in Section 9-106
of the UCC) or "chattel paper" (as defined in Section 9-105 of the UCC)
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or an "instrument" (as defined in Section 9-105 of the UCC). If the
Contract is chattel paper, then (i) there is only one counterpart of the
Contract that constitutes "chattel paper" for purposes of Section 9-105(b)
and 9-308 of the UCC and (ii) either the Borrower or its Subsidiaries
(other than Funding and Credident) has a first priority security interest
in the Equipment that is the subject of the Contract.
(n) Each Lease requires the related Obligor to maintain the related
Equipment, if any, in good and workable order. Each Lease and Conditional
Sale Agreement requires the related Obligor to obtain and maintain physical
damage insurance on the Equipment subject thereto and to name the lessor or
lender thereunder as loss payee and an additional insured with respect
thereto. The Agent is named as loss payee under all of the Borrower's or
any of its Subsidiaries' (other than Funding and Credident) physical damage
insurance on the Equipment, other than insurance of the Borrower maintained
under Borrower's lessee insurance program pursuant to equipment leases and
conditional sales agreements with its lessees. To the best of the
Borrower's knowledge, the Equipment was properly delivered to the Obligor
in good repair, without defects and in satisfactory order and the related
Equipment, if any, is in good operating condition and repair. To the best
of the Borrower's knowledge, the related Equipment was accepted by the
Obligor after reasonable opportunity to inspect and test the same and no
Obligor has informed the Borrower and its Subsidiaries (other than Funding
and Credident) of any defects therein.
(o) No Contract constitutes a "consumer lease" under the UCC.
(p) The Borrower and its Subsidiaries (other than Funding and
Credident) have marked their computer records, to reflect the interest
granted to the Agent hereunder.
6.22 VEHICLE LEASES. SCHEDULE 6.22 sets forth all Vehicle Leases.
7. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan or Note is
outstanding or any Bank has any obligation to make any Loans:
7.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually pay or cause
to be paid the principal and interest on the Loans and the commitment fees, the
Letter of Credit Fees and Agent's fee provided for in this Credit Agreement, all
in accordance with the terms of this Credit Agreement and the Notes.
7.2. MAINTENANCE OF OFFICE. The Borrower will, and will cause each of its
Subsidiaries (other than Credident) to, maintain its chief executive office in
Boston, Massachusetts, or at such other place in the United States of America as
the Borrower
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shall designate upon written notice to the Agent, where notices, presentations
and demands to or upon the Borrower and its Subsidiaries in respect of the Loan
Documents may be given or made.
7.3. RECORDS AND ACCOUNTS. The Borrower will (i) keep, and cause each of
its Subsidiaries to keep, true and accurate records and books of account in
which full, true and correct entries will be made in accordance with generally
accepted accounting principles and (ii) maintain adequate accounts and reserves
for all taxes (including income taxes), depreciation, depletion, obsolescence
and amortization of its properties and the properties of its Subsidiaries,
contingencies, and other reserves in accordance with generally accepted
accounting principles.
7.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. The Borrower
will deliver to each of the Banks:
(a) as soon as practicable, but in any event not later than one
hundred (100) days after the end of each fiscal year of the Borrower, the
consolidated balance sheet of the Borrower and its Subsidiaries and the
consolidating balance sheet of the Borrower and its Subsidiaries, each as
at the end of such year, and the related consolidated statement of income
and consolidated statement of cash flow and consolidating statement of
income and consolidating statement of cash flow for such year, each setting
forth in comparative form the figures for the previous fiscal year and all
such consolidated and consolidating statements to be in reasonable detail,
prepared in accordance with generally accepted accounting principles, the
consolidated statements certified without qualification by Coopers &
Lybrand or by other independent certified public accountants satisfactory
to the Agent, together with a written statement from such accountants to
the effect that they have read a copy of this Credit Agreement, and that,
in making the examination necessary to said certification, they have
obtained no knowledge of any Default or Event of Default, or, if such
accountants shall have obtained knowledge of any then existing Default or
Event of Default they shall disclose in such statement any such Default or
Event of Default; PROVIDED that such accountants shall not be liable to the
Banks for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than forty-
eight (48) days after the end of each of the first three (3) fiscal
quarters of the fiscal year of the Borrower, copies of the unaudited
consolidated balance sheet of the Borrower and its Subsidiaries and the
unaudited consolidating balance sheet of the Borrower and its Subsidiaries,
each as at the end of such quarter, and the related consolidated statement
of income and consolidated statement of cash flow and consolidating
statement of income and consolidating statement of cash flow for the
portion of the Borrower's fiscal year then elapsed, all in reasonable
detail and prepared in accordance with generally accepted accounting
principles, together with a certification by the principal
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financial or accounting officer of the Borrower that the information
contained in such financial statements fairly presents the financial
position of the Borrower and its Subsidiaries on the date thereof (subject
to year-end adjustments);
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement certified by the
principal financial or accounting officer of the Borrower in substantially
the form of EXHIBIT D hereto and setting forth in reasonable detail
computations evidencing compliance with the applicable covenants contained
in Section 9 and (if applicable) reconciliations to reflect changes in
generally accepted accounting principles since the Balance Sheet Date;
(d) contemporaneously with the filing or mailing thereof, copies of
all material of a financial nature filed with the Securities and Exchange
Commission or sent to the stockholders of the Borrower;
(e) within fifteen (15) days after the end of each calendar month or
at such earlier time as the Agent may reasonably request, a Borrowing Base
Report setting forth the Borrowing Base as at the end of such calendar
month;
(f) within fifteen (15) days after the end of each calendar month, an
Accounts Receivable aging report;
(g) from time to time upon request of the Agent, projections of the
Borrower and its Subsidiaries updating those projections delivered to the
Banks and referred to in Section 6.4.2 or, if applicable, updating any
later such projections delivered in response to a request pursuant to this
Section 7.4(g);
(h) from time to time copies of all reports delivered under the
Funding Indenture or the Funding II Credit Agreement and such other
financial data and information (including accountants' management letters)
as the Agent or any Bank may reasonably request; and
(i) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, an updated SCHEDULE 6.22
setting forth all Vehicle Leases.
7.5. NOTICES.
7.5.1. DEFAULTS. The Borrower will promptly notify the Agent and
each of the Banks in writing of the occurrence of any Default or Event of
Default. If any Person shall give any notice or take any other action in
respect of a claimed default (whether or not constituting an Event of
Default) under this Credit Agreement or in respect of a claimed default
under any other note, evidence of indebtedness, indenture or other
obligation to which or with respect to which the Borrower or any of its
Subsidiaries is a party or obligor,
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whether as principal or surety, if such claimed default is material to the
business or the financial condition of the Borrower, the Borrower shall
forthwith give written notice thereof to each of the Banks, describing the
notice or action and the nature of the claimed default.
7.5.2. ENVIRONMENTAL EVENTS. The Borrower will promptly give notice
to the Agent (i) of any violation of any Environmental Law that the
Borrower or any of its Subsidiaries reports in writing or is reportable by
such Person in writing (or for which any written report supplemental to any
oral report is made) to any federal, state or local environmental agency
and (ii) upon becoming aware thereof, of any inquiry, proceeding,
investigation, or other action, including a notice from any agency of
potential environmental liability, or any federal, state or local
environmental agency or board, that has the potential to materially affect
the assets, liabilities, financial conditions or operations of the Borrower
or any of its Subsidiaries, or the Agent's security interests pursuant to
the Security Documents.
7.5.3. NOTIFICATION OF CLAIMS AGAINST COLLATERAL. The Borrower will,
immediately upon becoming aware thereof, notify the Agent in writing of any
setoff, claims, withholdings or other defenses in excess of $500,000 in the
aggregate to which any of the Collateral, or the Agent's rights with
respect to the Collateral, are subject.
7.5.4. NOTICE OF LITIGATION AND JUDGMENTS. The Borrower will, and
will cause each of its Subsidiaries to, give notice to the Agent in writing
within fifteen (15) days of becoming aware of any litigation or proceedings
threatened in writing or any pending litigation and proceedings affecting
the Borrower or any of its Subsidiaries or to which the Borrower or any of
its Subsidiaries is or becomes a party involving an uninsured claim against
the Borrower or any of its Subsidiaries that could reasonably be expected
to have a materially adverse effect on the Borrower or any of its
Subsidiaries and stating the nature and status of such litigation or
proceedings. The Borrower will, and will cause each of its Subsidiaries
to, give notice to the Agent, in writing, in form and detail satisfactory
to the Agent, within ten (10) days of any judgment not covered by
insurance, final or otherwise, against the Borrower or any of its
Subsidiaries in an amount in excess of $500,000.
7.6. CORPORATE EXISTENCE; MAINTENANCE OF PROPERTIES. The Borrower will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises and those of its
Subsidiaries. It (i) will cause all of its properties and those of its
Subsidiaries used or useful in the conduct of its business or the business of
its Subsidiaries to be maintained and kept in good condition, repair and working
order, reasonable wear and tear excepted, and supplied with all necessary
equipment, (ii) will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Borrower may be necessary so that the business carried on in
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connection therewith may be properly and advantageously conducted at all times,
and (iii) will, and will cause each of its Subsidiaries to, continue to engage
primarily in the businesses now conducted by them and in related businesses;
PROVIDED that nothing in this Section 7.6 shall prevent the Borrower from
discontinuing the operation and maintenance of any of its properties or those of
its Subsidiaries if such discontinuance is, in the judgment of the Borrower,
desirable in the conduct of its or their business and that do not in the
aggregate materially adversely affect the business of the Borrower and its
Subsidiaries on a consolidated basis.
7.7. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurers
insurance with respect to its properties and business against such casualties
and contingencies as shall be in accordance with the general practices of
businesses engaged in similar activities in similar geographic areas; PROVIDED,
HOWEVER, that the Borrower shall not be required to maintain such insurance with
respect to Equipment which it leases or transfers to third parties pursuant to
an equipment lease or a conditional sales agreement to the extent that the
lessee thereon maintains such insurance pursuant to the terms of its equipment
lease or conditional sales agreement with the Borrower. Such insurance shall be
in amounts, containing such terms, in such forms and for such periods as may be
reasonable and prudent and in accordance with the terms of Section 8.1 of the
Security Agreements.
7.8. TAXES. The Borrower will, and will cause each of its Subsidiaries
to, duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
(other than taxes, assessments and other governmental charges imposed by foreign
jurisdictions that in the aggregate are not material to the business or assets
of the Borrower on an individual basis or of the Borrower and its Subsidiaries
on a consolidated basis) imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its property; PROVIDED that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Borrower or such Subsidiary shall have set aside on its books
adequate reserves with respect thereto; and PROVIDED FURTHER that the Borrower
and each Subsidiary of the Borrower will pay all such taxes, assessments,
charges, levies or claims forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security therefor.
7.9. INSPECTION OF PROPERTIES AND BOOKS, ETC.
7.9.1. GENERAL. The Borrower shall permit the Banks, through the
Agent or any of the Banks' other designated representatives, to visit and
inspect any of the properties of the Borrower or any of its Subsidiaries to
examine the books of account of the Borrower and its Subsidiaries (and to
make copies thereof and extracts therefrom), and to discuss the affairs,
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finances and accounts of the Borrower and its Subsidiaries with, and to be
advised as to the same by, its and their officers, all at such reasonable
times and intervals as the Agent or any Bank may reasonably request.
7.9.2. COLLATERAL REPORTS. No more frequently than once each
calendar quarter, or more frequently as determined by the Agent if an Event
of Default shall have occurred and be continuing, upon the request of the
Agent, the Borrower will obtain and deliver to the Agent a report of an
independent collateral auditor satisfactory to the Agent (which may be
affiliated with any of the Banks) with respect to the Accounts Receivable
included in the Borrowing Base, which report shall indicate whether or not
the information set forth in the Borrowing Base Report most recently
delivered is accurate and complete in all material respects based upon a
review by such auditors of the Accounts Receivable (including verification
with respect to the amount, aging, identity and credit of the respective
account debtors and the billing practices of the Borrower or its applicable
Subsidiary) and inventory (including verification as to the value, location
and respective types). All such collateral value reports shall be
conducted and made at the expense of the Borrower; PROVIDED, HOWEVER, that
the liability of the Borrower for such expenses shall be limited to $25,000
so long as no Event of Default has occurred and is continuing.
7.9.3. COMMUNICATION WITH ACCOUNTANTS. The Borrower authorizes the
Agent and, if accompanied by the Agent, the Banks to communicate directly
with the Borrower's independent certified public accountants and authorizes
such accountants to disclose to the Agent and the Banks any and all
financial statements and other supporting financial documents and schedules
including copies of any management letter with respect to the business,
financial condition and other affairs of the Borrower or any of its
Subsidiaries, PROVIDED, HOWEVER, that a representative of Borrower shall be
entitled to be present at any meeting between or among the Agent, the Banks
and the Borrower's independent certified accountants. At the request of
the Agent, the Borrower shall deliver a letter addressed to such
accountants instructing them to comply with the provisions of this Section
7.9.4.
7.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The
Borrower will, and will cause each of its Subsidiaries to, comply with (i) the
applicable laws and regulations wherever its business is conducted, including
all Environmental Laws, (ii) the provisions of its charter documents and by-
laws, (iii) all agreements and instruments by which it or any of its properties
may be bound and (iv) all applicable decrees, orders, and judgments; PROVIDED,
HOWEVER, that a failure to do so shall not be deemed a Default or an Event of
Default to the extent that it would not be reasonably likely to have a material
adverse effect on the business or financial condition of the Borrower and its
Subsidiaries, taken as a whole. If at any time while any Loan or Note is
outstanding or either Bank has any obligation to make Loans hereunder, any
authorization, consent, approval, permit or license from any officer,
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agency or instrumentality of any government shall become necessary or required
in order that the Borrower may fulfill any of its obligations hereunder, the
Borrower will immediately take or cause to be taken all reasonable steps within
the power of the Borrower to obtain such authorization, consent, approval,
permit or license and furnish the Banks with evidence thereof.
7.11. EMPLOYEE BENEFIT PLANS. The Borrower will (i) promptly upon request
of the Agent, furnish to the Agent a copy of the most recent actuarial statement
required to be submitted under Section 103(d) of ERISA and Annual Report, Form
5500, with all required attachments, in respect of each Guaranteed Pension Plan
and (ii) promptly upon receipt or dispatch, furnish to the Agent any notice,
report or demand sent or received in respect of a Guaranteed Pension Plan under
Sections 302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in
respect of a Multiemployer Plan, under Sections 4041A, 4202, 4219, 4242, or 4245
of ERISA.
7.12. USE OF PROCEEDS. The Borrower will use the proceeds of the Loans
solely for working capital purposes, PROVIDED, HOWEVER, that the Borrower may
use up to a maximum aggregate amount equal to $7,000,000 MINUS the sum of the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations of proceeds of
the Loans towards the purchase of 1,949,182 shares of the Borrower's Common
Stock, $0.01 par value, pursuant to the terms of the Stock Purchase Agreement,
and PROVIDED FURTHER that the Borrower may not use more than $2,000,000 of
proceeds of the Loans for the portion of the Purchase Price (as defined in the
Stock Purchase Agreement) to be paid by the Borrower on the Closing Date (as
defined in the Stock Purchase Agreement). The Borrower will obtain Letters of
Credit solely for the purpose of complying with the requirements of Section 7.2
of the Stock Purchase Agreement.
7.13. BANK ACCOUNTS. The Borrower will, and will cause each of its
Subsidiaries (other than Funding and Credident) to, together with the employees,
agents and other Persons acting on behalf of the Borrower or such Subsidiary, to
cause all payments constituting proceeds of Accounts Receivable or other
Collateral to be paid into a lockbox designated by the Agent and, in the event
any such proceeds are received, by any of them to receive and hold in trust for
the Agent and the Banks all payments constituting proceeds of Accounts
Receivable or other Collateral which come into their possession or under their
control and, immediately upon receipt thereof, deposit such payments in the form
received, with any appropriate endorsements, in one of the accounts designated
as a central depository account on SCHEDULE 6.20.
7.14. CREDIT CRITERIA. The Borrower will, and will cause each of its
Subsidiaries (other than Funding and Credident) to furnish to the Agent a copy
of the most recent Credit Policy of the Borrower and its Subsidiaries (other
than Funding and Credident) and to promptly furnish to the Agent any amendments
to such Credit Policy.
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7.15. FURTHER ASSURANCES. The Borrower will, and will cause each of its
Subsidiaries to, cooperate with the Banks and the Agent and execute such further
instruments and documents as the Banks or the Agent shall reasonably request to
carry out to their satisfaction the transactions contemplated by this Credit
Agreement and the other Loan Documents.
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or the Agent has any obligations to issue,
extend or renew any Letters of Credit hereunder:
8.1. RESTRICTIONS ON INDEBTEDNESS. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness other
than:
(a) Indebtedness to the Banks and the Agent arising under any of the
Loan Documents;
(b) current liabilities of the Borrower incurred in the ordinary
course of business not incurred through (i) the borrowing of money, or (ii)
the obtaining of credit except for credit on an open account basis
customarily extended and in fact extended in connection with normal
purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the
extent that payment therefor shall not at the time be required to be made
in accordance with the provisions of Section 7.8;
(d) Indebtedness in respect of judgments or awards that have been in
force for less than the applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of which the Borrower
shall at the time in good faith be prosecuting an appeal or proceedings for
review and in respect of which a stay of execution shall have been obtained
pending such appeal or review;
(e) endorsements for collection, deposit or negotiation and warranties
of products or services, in each case incurred in the ordinary course of
business;
(f) Subordinated Debt;
(g) obligations under Capitalized Leases not exceeding $1,000,000 in
aggregate amount at any time outstanding;
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(h) Indebtedness incurred in connection with the acquisition after the
date hereof of any real or personal property by the Borrower or any
Subsidiary of the Borrower, PROVIDED that the aggregate principal amount of
such Indebtedness of the Borrower and its Subsidiaries shall not exceed the
aggregate amount of $1,000,000 at any one time;
(i) Indebtedness existing on the date of this Credit Agreement and
listed and described on SCHEDULE 8.1 hereto;
(j) Indebtedness of Subsidiaries of the Borrower to the Borrower so
long as (a) such Subsidiary has made a guaranty in favor of the Banks and
the Agent pursuant to which such Subsidiary guaranties to the Banks and the
Agent the payment and performance of the Obligations in form and substance
satisfactory to the Banks and the Agent and (b) the obligations of such
Subsidiary (other than Funding and Credident) under such guaranty are in
turn secured by a perfected first priority security interest (subject only
to the Permitted Liens entitled to priority under applicable law) in all
the assets of such Subsidiary, whether now owned or hereafter acquired,
pursuant to the terms of the Security Documents to which such Subsidiary is
a party;
(k) Indebtedness incurred pursuant to the Stock Purchase Agreement,
PROVIDED that the aggregate principal amount of such Indebtedness of the
Borrower and its Subsidiaries shall not exceed the aggregate principal
amount of $9,000,000 at any time;
(l) Indebtedness incurred by Funding II pursuant to the Funding II
Credit Agreement; and
(m) Indebtedness incurred by the Borrower pursuant to the SIS Credit
Agreement, PROVIDED that the aggregate principal amount of such
Indebtedness of the Borrower shall not exceed $5,000,000 at any time.
8.2. RESTRICTIONS ON LIENS. The Borrower will not, and will not permit any
of its Subsidiaries to, (i) create or incur or suffer to be created or incurred
or to exist any lien, encumbrance, mortgage, pledge, charge, restriction or
other security interest of any kind upon any of its property or assets of any
character (including the capital stock of Funding) whether now owned or
hereafter acquired, or upon the income or profits therefrom; (ii) transfer any
of such property or assets or the income or profits therefrom for the purpose of
subjecting the same to the payment of Indebtedness or performance of any other
obligation in priority to payment of its general creditors; (iii) acquire, or
agree or have an option to acquire, any property or assets upon conditional sale
or other title retention or purchase money security agreement, device or
arrangement; (iv) suffer to exist for a period of more than thirty (30) days
after the same shall have been incurred any Indebtedness or claim or demand
against it that if unpaid might by law or upon bankruptcy or insolvency, or
otherwise, be given any priority whatsoever over its general creditors; or (v)
sell, assign, pledge or otherwise
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transfer any accounts, contract rights, general intangibles, chattel paper or
instruments, with or without recourse; PROVIDED that the Borrower and any
Subsidiary of the Borrower may create or incur or suffer to be created or
incurred or to exist:
(a) liens in favor of the Borrower on all or part of the assets of
Subsidiaries of the Borrower securing Indebtedness owing by Subsidiaries of
the Borrower to the Borrower;
(b) liens to secure taxes, assessments and other government charges in
respect of obligations not overdue or liens on properties to secure claims
for labor, material or supplies in respect of obligations not overdue;
(c) deposits or pledges made in connection with, or to secure payment
of, workmen's compensation, unemployment insurance, old age pensions or
other social security obligations;
(d) liens on properties in respect of judgments or awards, the
Indebtedness with respect to which is permitted by Section 8.1(d);
(e) liens of carriers, warehousemen, mechanics and materialmen, and
other like liens on properties, in existence less than 120 days from the
date of creation thereof in respect of obligations not overdue;
(f) encumbrances consisting of easements, rights of way, zoning
restrictions, restrictions on the use of real property and defects and
irregularities in the title thereto, landlord's or lessor's liens under
leases to which the Borrower or a Subsidiary of the Borrower is a party,
and other minor liens or encumbrances none of which in the opinion of the
Borrower interferes materially with the use of the property affected in the
ordinary conduct of the business of the Borrower and its Subsidiaries,
which defects do not individually or in the aggregate have a materially
adverse effect on the business of the Borrower individually or of the
Borrower and its Subsidiaries on a consolidated basis;
(g) presently outstanding liens listed on SCHEDULE 8.2(g) hereto;
(h) purchase money security interests in or purchase money mortgages
on real or personal property, incurred in connection with the acquisition
of such property, which security interests or mortgages cover only the real
or personal property so acquired;
(i) liens in favor of the Agent for the benefit of the Banks and the
Agent under the Loan Documents;
(j) liens on "margin security" or "margin stock" as such terms are
used in Regulations U and X of the Board of Governors of the Federal
Reserve System, 12 C.F.R. Parts 221 and 224;
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(k) liens in favor of the Chemical Bank, as agent, on the Remainder
Shares (as defined in the Stock Purchase Agreement) to secure the Note (as
defined in the Stock Purchase Agreement) pursuant to Section 7.1 of the
Stock Purchase Agreement;
(l) liens granted by Funding II in connection with the Funding II
Credit Agreement; and
(m) Liens granted by the Borrower to SIS on the assets of the Borrower
listed on SCHEDULE 8.2(m) in connection with the SIS Credit Agreement.
8.3 RESTRICTIONS ON INVESTMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America that mature within one (1) year from the date of purchase by the
Borrower;
(b) demand deposits, certificates of deposit, bankers acceptances and
time deposits of United States banks having total assets in excess of
$1,000,000,000;
(c) (i) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof that at the time of purchase have been rated
and the ratings for which are not less than "P 1" if rated by Moody's
Investors Services, Inc., and not less than "A 1" if rated by Standard and
Poor's (ii) securities commonly known as "short-term bank notes" issued by
any Bank denominated in Dollars which at the time of purchase have been
rated and the ratings for which are not less than "P 2" if rated by Moody's
Investors Services, Inc., and not less than "A 2" if rated by Standard and
Poor's Corporation;
(d) Investments existing on the date hereof and listed on SCHEDULE 8.3
hereto;
(e) Investments with respect to Indebtedness permitted by Section
8.1(j) so long as (i) such entities remain Subsidiaries of the Borrower and
(ii) the aggregate amount of incremental Investments made by the Borrower
and its subsidiaries in ACFC does not exceed $7,000,000 during fiscal year
1995;
(f) Investments consisting of the Guaranty or Investments by the
Borrower in Subsidiaries of the Borrower existing on the Closing Date;
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(g) Investments consisting of promissory notes received as proceeds of
asset dispositions permitted by Section 8.5.2;
(h) Investments consisting of loans and advances to employees for
moving, entertainment, travel and other similar expenses in the ordinary
course of business not to exceed $250,000 in the aggregate at any time
outstanding;
(i) Investments not otherwise permitted by this Section 8.3, PROVIDED,
THAT the aggregate amount of such Investments shall not exceed $1,000,000;
and
(j) Investments made pursuant to the Stock Purchase Agreement.
PROVIDED, HOWEVER, that, with the exception of demand deposits referred to in
Section 8.3(b) and loans and advances referred to in Section 8.3(h), such
Investments will be considered Investments permitted by this Section 8.3 only if
all actions have been taken to the satisfaction of the Agent to provide to the
Agent, for the benefit of the Banks and the Agent, a first priority perfected
security interest in all of such Investments free of all encumbrances other than
Permitted Encumbrances.
8.4. DISTRIBUTIONS. The Borrower will not make any Distributions,
PROVIDED, HOWEVER, that the Borrower may make payments required to be made
pursuant to the provisions of the Stock Purchase Agreement so long as no Default
or Event of Default has occurred and is continuing.
8.5 MERGER, CONSOLIDATION AND DISPOSITION OF ASSETS.
8.5.1. MERGERS AND ACQUISITIONS. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to any merger or
consolidation, or agree to or effect any asset acquisition or stock
acquisition (other than the acquisition of assets in the ordinary course of
business consistent with industry practices).
8.5.2. DISPOSITION OF ASSETS. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to or agree to or effect
any disposition of assets, other than the disposition of assets in the
ordinary course of business, consistent with industry practices, PROVIDED,
HOWEVER, that such disposition of assets in the ordinary course of business
shall not include a transfer of a material amount of Customer Receivables
without the prior written approval of the Banks. Notwithstanding the
foregoing provisions of this Section 8.5.2 and provided no Event of Default
has occurred and is continuing, the Borrower and its Subsidiaries may
dispose of assets pursuant to the Purchase Agreement.
8.6. SALE AND LEASEBACK. The Borrower will not, and will not permit any of
its Subsidiaries to, enter into any arrangement, directly or indirectly, whereby
the Borrower or any Subsidiary of the Borrower shall sell or transfer any
property owned
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by it in order then or thereafter to lease such property or lease other property
that the Borrower or any Subsidiary of the Borrower intends to use for
substantially the same purpose as the property being sold or transferred.
8.7. COMPLIANCE WITH ENVIRONMENTAL LAWS. The Borrower will not, and will
not permit any of its Subsidiaries to, (i) use any of the Real Estate or any
portion thereof for the handling, processing, storage or disposal of Hazardous
Substances, (ii) cause or permit to be located on any of the Real Estate any
underground tank or other underground storage receptacle for Hazardous
Substances, (iii) generate any Hazardous Substances on any of the Real Estate,
(iv) conduct any activity at any Real Estate or use any Real Estate in any
manner so as to cause a release (i.e. releasing, spilling, leaking, pumping,
pouring, emitting, emptying, discharging, injecting, escaping, leaching,
disposing or dumping) or threatened release of Hazardous Substances on, upon or
into the Real Estate or (v) otherwise conduct any activity at any Real Estate or
use any Real Estate in any manner that would violate any Environmental Law or
bring such Real Estate in violation of any Environmental Law, in any case in a
manner which could reasonably be expected to have a material adverse effect on
the business or financial condition of the Borrower and its Subsidiaries, taken
as a whole.
8.8. OTHER DEBT. The Borrower will not, and will not permit any of its
Subsidiaries (other than Funding and Credident) to, amend, supplement or
otherwise modify the terms of any Subordinated Debt or prepay or repurchase any
Subordinated Debt or Indebtedness outstanding under the Funding Indenture or the
Funding II Credit Agreement or the SIS Credit Agreement.
8.9. EMPLOYEE BENEFIT PLANS. Neither the Borrower nor any ERISA Affiliate
will:
(a) engage in any "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975 of the Code which could result in a
material liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur a material
"accumulated funding deficiency", as such term is defined in Section 302 of
ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance of a material amount on
the assets of the Borrower or any of its Subsidiaries pursuant to Section
302(f) or Section 4068 of ERISA; or
(d) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of Section 4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans,
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disregarding for this purpose the benefit liabilities and assets of any such
Plan with assets in excess of benefit liabilities.
8.10. BANK ACCOUNTS. The Borrower will not, and will not permit any of its
Subsidiaries to, (i) establish any bank accounts other than those listed on
SCHEDULE 6.20 without the Agent's prior written consent, (ii) violate directly
or indirectly any bank agency or lock box agreement in favor of the Agent for
the benefit of the Banks and the Agent with respect to such account, or (iii)
deposit into any of the payroll accounts listed on SCHEDULE 6.20 any amounts in
excess of amounts necessary to pay current payroll obligations from such
accounts.
8.11. Funding Stock. The Borrower will not sell, assign (by operation of
law or otherwise) or otherwise dispose of, or grant any option with respect to
any shares of stock of Funding.
9. FINANCIAL COVENANTS OF THE BORROWER.
9.1. DEBT TO CONSOLIDATED TANGIBLE CAPITAL FUNDS. The Borrower will
restrict Indebtedness of the Borrower and its Subsidiaries (other than
Credident) PLUS security deposits received by the Borrower and its Subsidiaries
(other than Credident) with respect to Accounts Receivable to not more than 400%
of Consolidated Tangible Capital Funds.
9.2. CONSOLIDATED TANGIBLE NET WORTH. The Borrower will not permit
Consolidated Tangible Net Worth at any time to be less than the sum of (i)
$30,000,000 PLUS (ii) on a cumulative basis, 75% of positive Consolidated Net
Income for each fiscal quarter beginning with the fiscal quarter commencing on
or after June 26, 1994, PLUS (iii) 100% of the proceeds of any sale (other than
up to $4,000,000 of proceeds from the re-sale by the Borrower of 949,182 shares
of the Borrower's Common Stock, $0.01 par value, purchased pursuant to the Stock
Purchase Agreement) by the Borrower or any of its Subsidiaries (other than
Credident) of (A) equity securities issued by the Borrower or any of its
Subsidiaries (other than Credident), or (B) warrants or subscription rights for
equity securities issued by the Borrower or any of its Subsidiaries (other than
Credident) MINUS up to $5,000,000 of the total Stock Purchase Price (as defined
in the Stock Purchase Agreement) used to purchase shares of the Borrower's
Common Stock, $0.01 par value, pursuant to the Stock Purchase Agreement which
shares thereafter are to be either held by the Borrower as treasury shares or
retired.
9.3. INTEREST COVERAGE. The Borrower will not permit the ratio of (i)
Consolidated Earnings Before Interest and Taxes for any period of four
consecutive fiscal quarters (treated as a single accounting period), to (ii)
Consolidated Total Interest Expense for such period, to be less than 1.15 to
1.00 at any time.
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9.4. CAPITAL EXPENDITURES. The Borrower will not make, or permit any
Subsidiary of the Borrower to make, after June 23, 1994, Capital Expenditures
that exceed, in the aggregate, $1,000,000.
9.5. REISSUED CUSTOMER RECEIVABLES TO GROSS CUSTOMER RECEIVABLES. The
Borrower will at no time permit Reissued Customer Receivables (originated and
calculated after June 23, 1994) to exceed 10% of Gross Customer Receivables.
9.6. DELINQUENT CUSTOMER RECEIVABLES TO GROSS CUSTOMER RECEIVABLES RATIO.
The Borrower will not permit Delinquent Customer Receivables at any time exceed
10% of Gross Customer Receivables.
9.7. RESERVES TO DELINQUENT CUSTOMER RECEIVABLES. The Borrower will not,
at the end of any fiscal quarter, permit Reserves to be less than 60% of the sum
of Delinquent Customer Receivables.
9.8. PROVISION FOR LOSSES. The Borrower will, at the end of each fiscal
quarter, recognize a provision for losses on its books for losses with respect
to Accounts Receivables at least equal to two percent (2%) of Net Customer
Receivables originated during such fiscal quarter, as reduced by recoveries in
such quarter and otherwise adjusted in accordance with generally accepted
accounting principles.
9.9 COLLECTIONS TO BILLINGS. The Borrower will not permit, at the end of
any calendar month with respect to the preceding three month period, the average
Collections to be less than 90% of Billings.
9.10. LEASES. The Borrower will not, and will not permit any of its
Subsidiaries to, as lessee, enter into, permit to exist, or renew any agreements
to rent or lease any real or personal property if the aggregate amount of Rental
Obligations accrued and to accrue under all such agreements will exceed
$5,000,000.
9.11. EQUIPMENT SUPPLIER CONCENTRATION. The aggregate of Accounts
Receivable generated after June 23, 1994 through the financing of Equipment
supplied by any single Equipment Supplier shall not exceed 50% of total Accounts
Receivable.
10. CLOSING CONDITIONS.
The obligations of the Banks to make the initial Revolving Credit Loans and
of the Agent to issue any initial Letters of Credit shall be subject to the
satisfaction of the following conditions precedent on or prior to the date
hereof:
10.1 LOAN DOCUMENTS. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the Banks.
Each Bank shall have received a fully executed copy of each such document.
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10.2. CERTIFIED COPIES OF CHARTER DOCUMENTS. Each of the Banks shall have
received from the Borrower and each Subsidiary of the Borrower, a copy,
certified by a duly authorized officer of such Person to be true and complete on
the Closing Date, of each of (i) its charter or other incorporation documents as
in effect on such date of certification, and (ii) its by-laws as in effect on
such date.
10.3. CORPORATE ACTION. All corporate action necessary for the valid
execution, delivery and performance by the Borrower and each of its Subsidiaries
(other than Funding and Credident) of this Credit Agreement and the other Loan
Documents to which it is or is to become a party shall have been duly and
effectively taken, and evidence thereof satisfactory to the Banks shall have
been provided to each of the Banks.
10.4. INCUMBENCY CERTIFICATE. Each of the Banks shall have received from
the Borrower and each of its Subsidiaries (other than Funding and Credident) an
incumbency certificate, dated as of the Closing Date, signed by a duly
authorized officer of the Borrower or such Subsidiary, and giving the name and
bearing a specimen signature of each individual who shall be authorized: (i) to
sign, in the name and on behalf of each of the Borrower of such Subsidiary, each
of the Loan Documents to which the Borrower or such Subsidiary is or is to
become a party; (ii) in the case of the Borrower, to make Loan Requests and
Conversion Requests; and (iii) to give notices and to take other action on its
behalf under the Loan Documents.
10.5. VALIDITY OF LIENS. The Security Documents shall be effective to
create in favor of the Agent a legal, valid and enforceable first (except for
Permitted Liens entitled to priority under applicable law) security interest in
the Collateral. All filings, recordings, deliveries of instruments and other
actions necessary or desirable in the opinion of the Agent to protect and
preserve such security interests shall have been duly effected. The Agent shall
have received evidence thereof in form and substance satisfactory to the Agent.
10.6. PERFECTION CERTIFICATES AND UCC SEARCH RESULTS. The Agent shall have
received from each of the Borrower and its Subsidiaries (other than Funding and
Credident), a completed and fully executed Perfection Certificate and the
results of UCC searches with respect to its Collateral, indicating no liens
other than Permitted Liens and otherwise in form and substance satisfactory to
the Agent.
10.7. CERTIFICATES OF INSURANCE. The Agent shall have received (i) a
certificate of insurance from an independent insurance broker dated as of the
Closing Date, identifying insurers, types of insurance, insurance limits, and
policy terms, and otherwise describing the insurance obtained in accordance with
the provisions of the Security Agreements and (ii) certified copies of all
policies evidencing such insurance (or certificates therefore signed by the
insurer or an agent authorized to bind the insurer).
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10.8. BANK AGENCY AGREEMENTS. The Agent shall have received an agreement,
in form and substance satisfactory to the Agent, from each bank at which the
Borrower or any of its Subsidiaries maintains depository accounts (including
bank agency or lock box agreements) concerning the Agent's interest for the
benefit of the Banks and the Agent in such accounts.
10.9. BORROWING BASE REPORT. The Agent shall have received from the
Borrower the initial Borrowing Base Report dated as of the Closing Date.
10.10. ACCOUNTS RECEIVABLE AGING REPORT. The Agent shall have received
from the Borrower the most recent Accounts Receivable aging report of the
Borrower and its Subsidiaries dated as of a date which shall be no more than
fifteen (15) days prior to the Closing Date and the Borrower shall notify the
Agent in writing on the Closing Date of any material deviation from the Accounts
Receivable values reflected in such Accounts Receivable aging report and shall
provide the Agent with such supplementary documentation as the Agent may
reasonably request.
10.11. SOLVENCY CERTIFICATE Each of the Banks shall have received an
officer's certificate of the Borrower dated as of the Closing Date as to the
solvency of the Borrower and its Subsidiaries following the consummation of the
transactions contemplated herein and in form and substance satisfactory to the
Banks.
10.12. OPINIONS OF COUNSEL. Each of the Banks and the Agent shall have
received a favorable opinion addressed to the Banks and the Agent, dated as of
the Closing Date, in form and substance satisfactory to the Banks and the Agent,
from counsel to the Borrower and its Subsidiaries.
10.13. PAYMENT OF FEES. The Borrower shall have paid to the Banks or the
Agent, as appropriate, the Closing Fee pursuant to Section 4.1.
10.l4. MANAGEMENT LETTER. The Banks and the Agent shall have received a
copy of the most recent accountants' management letter received by the Borrower.
10.15. FUNDING REPORTS. The Bank and the Agent shall have received a copy
of each of the most recent reports delivered by Borrower, as servicer pursuant
to the Funding Indenture.
11. CONDITIONS TO ALL BORROWINGS.
The obligation of the Banks to make any Loans and of the Agent to issue,
extend or renew any Letters of Credit whether on or after the Closing Date shall
be subject to the satisfaction of each of the following conditions precedent:
11.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be
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true as of the date as of which they were made and shall also be true at and as
of the time of the making of such Loan, with the same effect as if made at and
as of that time (except to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing.
11.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Agent would make it illegal for the Agent to
issue, extend or renew such Letter of Credit.
11.3. GOVERNMENTAL REGULATION. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
11.4. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Banks and to the Agent and the Agent's Special Counsel, and the
Banks, the Agent and such counsel shall have received all information and such
counterpart originals or certified or other copies of such documents as the
Agent may reasonably request.
11.5. BORROWING BASE REPORT. The Agent shall have received the most recent
Borrowing Base Report required to be delivered to the Agent in accordance with
Section 7.4(e) and, if requested by the Agent, a Borrowing Base Report dated
within one (1) days of the Drawdown Date of the requested Loan or the issuance,
extension or renewal of the requested Letter of Credit.
12. EVENTS OF DEFAULT; ACCELERATION; ETC.
12.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans when the
same shall become due and payable, whether at the stated date of maturity
or any accelerated date of maturity or at any other date fixed for payment;
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(b) the Borrower shall fail to pay any interest on the Loans, the
commitment fee, any Letter of Credit Fee, the Agent's fee, or other sums
due hereunder or under any of the other Loan Documents, when the same shall
become due and payable, whether at the stated date of maturity or any
accelerated date of maturity or at any other date fixed for payment;
(c) the Borrower shall (i) fail to comply with any of its covenants
contained in (i) Sections 7.4, 8.1 through 8.6, or 9 or (ii) fail to comply
with any of its covenants contained in Sections 7.1 through 7.3, Sections
7.5 through 7.14 and Sections 8.7 through 8.10 for a period exceeding ten
(10) days;
(d) the Borrower or any of its Subsidiaries shall fail to perform any
term, covenant or agreement contained herein or in any of the other Loan
Documents (other than those specified elsewhere in this Section 12.1) for
fifteen (15) days after written notice of such failure has been given to
the Borrower by the Agent;
(e) any representation or warranty of the Borrower or any of its
Subsidiaries in this Credit Agreement or any of the other Loan Documents or
in any other document or instrument delivered pursuant to or in connection
with this Credit Agreement shall prove to have been false in any material
respect upon the date when made or deemed to have been made or repeated;
(f) the Borrower or any of its Subsidiaries shall fail to pay at
maturity, or within any applicable period of grace, any obligation for
borrowed money or credit received or in respect of any Capitalized Leases,
or fail to observe or perform any material term, covenant or agreement
contained in any agreement by which it is bound, evidencing or securing
borrowed money or credit received or in respect of any Capitalized Leases
for such period of time as would permit (assuming the giving of appropriate
notice if required) the holder or holders thereof or of any obligations
issued thereunder to accelerate the maturity thereof and which default is
not waived by the parties thereto;
(g) the Borrower or any of its Subsidiaries shall make an assignment
for the benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of the Borrower or any of its Subsidiaries or of any
substantial part of the assets of the Borrower or any of its Subsidiaries
or shall commence any case or other proceeding relating to the Borrower or
any of its Subsidiaries under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar law
of any jurisdiction, now or hereafter in effect, or shall take any action
to authorize or in furtherance of any of the foregoing, or if any such
petition or application shall be filed or any such case or other proceeding
shall be commenced against the Borrower or any of its
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Subsidiaries and the Borrower or any of its Subsidiaries shall indicate its
approval thereof, consent thereto or acquiescence therein;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any of
its Subsidiaries bankrupt or insolvent, or approving a petition in any such
case or other proceeding, or a decree or order for relief is entered in
respect of the Borrower or any Subsidiary of the Borrower in an involuntary
case under federal bankruptcy laws as now or hereafter constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any final
judgment against the Borrower or any of its Subsidiaries that, with other
outstanding final judgments, undischarged, against the Borrower or any of
its Subsidiaries exceeds in the aggregate $500,000;
(j) the holders of all or any part of the Subordinated Debt or
Indebtedness under the Funding Indenture or Indebtedness under the Funding
II Credit Agreement shall accelerate the maturity of all or any part of
such debt or such debt shall be prepaid or repurchased in whole or in part
which in the case of Subordinated Debt violate any provision thereof;
PROVIDED, HOWEVER, that early termination of the Funding Indenture by
Funding pursuant to the terms thereof shall not constitute an acceleration
by such holders; AND PROVIDED FURTHER that (A) the early termination of the
Funding II Credit Agreement by Funding II pursuant to the terms thereof
shall not constitute an acceleration by such holders and (B) payments by
Funding II pursuant to Sections 2.05(b) and 2.05(c) of the Purchase
Agreement shall not constitute prepayment of Indebtedness under the Funding
II Credit Agreement;
(k) if any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded or the Agent's security interests, mortgages or liens
in substantially all of the Collateral shall cease to be perfected, or
shall cease to have the priority contemplated by the Security Documents, in
each case otherwise than in accordance with the terms thereof or with the
express prior written agreement, consent or approval of the Banks, or any
action at law, suit or in equity or other legal proceeding to cancel,
revoke or rescind any of the loan documents shall be commenced by or on
behalf of the Borrower or any of its Subsidiaries party thereto or any of
their respective stockholders, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan Documents is illegal, invalid or
unenforceable in accordance with the terms thereof;
(l) with respect to any Guaranteed Pension Plan, an ERISA Reportable
Event shall have occurred and the Majority Banks shall have determined in
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their reasonable discretion that such event reasonably could be expected to
result in liability of the Borrower or any of its Subsidiaries to the PBGC
or such Guaranteed Pension Plan in an aggregate amount exceeding $100,000
and such event in the circumstances occurring reasonably could constitute
grounds for the termination of such Guaranteed Pension Plan by the PBGC or
for the appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan; or a trustee shall have
been appointed by the United States District Court to administer such
Guaranteed Pension Plan; or the PBGC shall have instituted proceedings to
terminate such Guaranteed Pension Plan;
(m) the Borrower or any of its Subsidiaries shall be enjoined,
restrained or in any way prevented by the order of any court or any
administrative or regulatory agency from conducting any material part of
its business and such order shall continue in effect for more than thirty
(30) days;
(n) there shall occur any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public enemy,
or other casualty, which in any such case causes, for more than fifteen
(15) consecutive days, the cessation or substantial curtailment of revenue
producing activities at any facility of the Borrower or any of its
Subsidiaries if such event or circumstance is not covered by business
interruption insurance and would have a material adverse effect on the
business or financial condition of the Borrower and its Subsidiaries, taken
as a whole;
(o) there shall occur the loss, suspension or revocation of, or
failure to renew, any license or permit now held or hereafter acquired by
the Borrower or any of its Subsidiaries if such loss, suspension,
revocation or failure to renew would have a material adverse effect on the
business or financial condition of the Borrower and its Subsidiaries, taken
as a whole;
(p) the Borrower or any of its Subsidiaries shall be indicted for a
state or federal crime, or any civil or criminal action shall otherwise
have been brought against the Borrower or any of its Subsidiaries, a
punishment for which in any such case could include the forfeiture of any
assets of the Borrower or such Subsidiary included in the Borrowing Base or
any assets of the Borrower or such Subsidiary not included in the Borrowing
Base but having a fair market value in excess of $100,000;
(q) any person or group of persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 promulgated
by the Securities and Exchange Commission under said Act) of fifty-one
percent (51%) or more of the outstanding shares of common stock of the
Borrower;
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(r) the occurrence of a Funding Event of Default, a Payment
Restriction Event, or a Servicer Event of Default under the Funding
Indenture and the expiration of any cure period available to Funding under
the Funding Indenture;
(s) the occurrence of a Event of Termination and the expiration of any
applicable cure period available to Funding II under the Purchase Agreement
or a Wind-Down Event and the expiration of any applicable cure period
available to Funding II under the Funding II Credit Agreement; or
(t) the occurrence of any default or any event of default under the
SIS Credit Agreement;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Majority Banks shall, by notice in writing to
the Borrower declare all amounts owing with respect to this Credit Agreement,
the Notes, the other Loan Documents, and all Reimbursement Obligations to be,
and they shall thereupon forthwith become, immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby expressly waived by the Borrower; PROVIDED that in the event of any Event
of Default specified in Section 12.1(g), 12.1(h) or 12.1(j), all such amounts
shall become immediately due and payable automatically and without any
requirement of notice from the Agent or any Bank.
12.2. TERMINATION OF COMMITMENTS. If any one or more of the Events of
Default specified in Section 12.1(g), Section 12.1(h) or Section 12.1(j) shall
occur, any unused portion of the credit hereunder shall forthwith terminate and
each of the Banks shall be relieved of all obligations to make Loans to the
Borrower. If any other Event of Default shall have occurred and be continuing,
or if on any Drawdown Date the conditions precedent to the making of the Loans
to be made on such Drawdown Date are not satisfied, the Agent may and, upon the
request of the Majority Banks, shall, by notice to the Borrower, terminate the
unused portion of the credit hereunder, and upon such notice being given such
unused portion of the credit hereunder shall terminate immediately and each of
the Banks shall be relieved of all further obligations to make Loans. If any
such notice is given to the Borrower the Agent will forthwith furnish a copy
thereof to each of the Banks. No termination of the credit hereunder shall
relieve the Borrower of any of the Obligations or any of its existing
obligations to any of the Banks arising under other agreements or instruments.
12.3. REMEDIES. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to Section 12.1, each Bank, if
owed any amount with respect to the Loans or the Reimbursement Obligations, may
proceed to protect and enforce its rights by suit in equity, action at law or
other appropriate proceeding, whether for the specific performance of any
covenant or agreement contained in this Credit Agreement and the other Loan
Documents or any instrument pursuant to which the
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Obligations to such Bank are evidenced, including as permitted by applicable law
the obtaining of the EX PARTE appointment of a receiver, and, if such amount
shall have become due, by declaration or otherwise, proceed to enforce the
payment thereof or any other legal or equitable right of such Bank. No remedy
herein conferred upon any Bank or the Agent or the holder of any Note or
purchaser of any Letter of Credit Participation is intended to be exclusive of
any other remedy and each and every remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at
law or in equity or by statute or any other provision of law.
12.4. DISTRIBUTION OF COLLATERAL PROCEEDS. In the event that following the
occurrence or during the continuance of any Default or Event of Default, the
Agent or any Bank, as the case may be, receives any monies in connection with
the enforcement of any the security documents, or otherwise with respect to the
realization upon any of the Collateral, such monies shall be distributed for
application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent or any of the Banks for or in respect of all
reasonable costs, expenses, disbursements and losses which shall have been
incurred or sustained by the Agent or any of the Banks in connection with
the collection of such monies by the Agent or any of the Banks, for the
exercise, protection or enforcement by the Agent or any of the Banks of all
or any of the rights, remedies, powers and privileges of the Agent or any
of the Banks under this Credit Agreement or any of the other loan documents
or in respect of the collateral and supports the provision of adequate
indemnity to the Agent or any of the Banks against all taxes or liens which
by law shall have, or may have, priority over the rights of the Agent or
any of the Banks to such monies;
(b) Second, to all other Obligations in such order or preference as
the Majority Banks may determine; PROVIDED, HOWEVER, that distributions in
respect of such Obligations shall be made (i) PARI PASSU among Obligations
with respect to the Agent's fee payable under Section 4.2 and all other
Obligations and (ii) Obligations owing to the Banks with respect to each
type of Obligation such as interest, principal, fees and expenses, shall be
made among the Banks PRO RATA; and PROVIDED, FURTHER, that the Agent may in
its discretion make proper allowance to take into account any Obligations
not then due and payable;
(c) Third, upon payment and satisfaction in full or other provisions
for payment in full satisfactory to the Banks and the Agent of all of the
Obligations, to the payment of any obligations required to be paid pursuant
to Section 9-504(1)(c) of the Uniform Commercial Code of the Commonwealth
of Massachusetts; and
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(d) Fourth, the excess, if any, shall be returned to the Borrower or
to such other Persons as are entitled thereto.
13. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of any
Event of Default, any deposits or other sums credited by or due from any of the
Banks to the Borrower and any securities or other property of the Borrower in
the possession of such Bank may be applied to or set off by such Bank against
the payment of Obligations and any and all other liabilities, direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrower to such Bank. Each of the Banks agrees with
each other Bank that (i) if an amount to be set off is to be applied to
Indebtedness of the Borrower to such Bank, other than Indebtedness evidenced by
the Notes held by such Bank or constituting Reimbursement Obligations owed to
such Bank, such amount shall be applied ratably to such other Indebtedness and
to the Indebtedness evidenced by all such Notes held by such Bank or
constituting Reimbursement Obligations owed to such Bank, and (ii) if such Bank
shall receive from the Borrower, whether by voluntary payment, exercise of the
right of setoff, counterclaim, cross action, enforcement of the claim evidenced
by the Notes held by, or constituting Reimbursement Obligations owed to, such
Bank, by proceedings against the Borrower at law or in equity or by proof
thereof in bankruptcy, reorganization, liquidation, receivership or similar
proceedings, or otherwise, and shall retain and apply to the payment of the Note
or Notes held by, or Reimbursement Obligations owed to, such Bank any amount in
excess of its ratable portion of the payments received by all of the Banks with
respect to the Notes held by, and Reimbursement Obligations owed to, all of the
Banks, such Bank will make such disposition and arrangements with the other
Banks with respect to such excess, either by way of distribution, PRO TANTO
assignment of claims, subrogation or otherwise as shall result in each Bank
receiving in respect of the Notes held by it or Reimbursement Obligations owed
it, its proportionate payment as contemplated by this Credit Agreement; PROVIDED
that if all or any part of such excess payment is thereafter recovered from such
Bank, such disposition and arrangements shall be rescinded and the amount
restored to the extent of such recovery, but without interest.
14. THE AGENT.
14.1. AUTHORIZATION. The Agent is authorized to take such action on behalf
of each of the Banks and to exercise all such powers as are hereunder and under
any of the other Loan Documents and any related documents delegated to the
Agent, together with such powers as are reasonably incident thereto, PROVIDED
that no duties or responsibilities not expressly assumed herein or therein shall
be implied to have been assumed by the Agent. The relationship between the
Agent and the Banks is and shall be that of agent and principal only, and
nothing contained in this Credit Agreement or any of the other Loan Documents
shall be construed to constitute the Agent as a trustee for any Bank. Each of
the Banks and the Agent acknowledge and
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agree that (i) the Agent is authorized to release the security interest created
by the Security Documents in the Transferred Assets and that (ii) the Agent is
authorized to execute and deliver, on behalf of the Banks and the Agent, such
partial releases under the Uniform Commercial Code as may be necessary or
desirable to accomplish a release of the security interest created by the
Security Documents in the Transferred Assets. Each of the Banks and the Agent
further acknowledge and agree that (i) the Agent is authorized to release the
security interest created by the Security Documents in the assets listed on
SCHEDULE 8.2(m) and that (ii) the Agent is authorized to execute and deliver, on
behalf of the Banks and the Agent, such partial releases under the Uniform
Commercial Code as may be necessary or desirable to accomplish a release of the
security interest created by the Security Documents in the assets listed on
SCHEDULE 8.2(m).
14.2. EMPLOYEES AND AGENTS. The Agent may exercise its powers and execute
its duties by or through employees or agents and shall be entitled to take, and
to rely on, advice of counsel concerning all matters pertaining to its rights
and duties under this Credit Agreement and the other Loan Documents. The Agent
may utilize the services of such Persons as the Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrower.
14.3. NO LIABILITY. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
14.4. NO REPRESENTATIONS. The Agent shall not be responsible for the
execution or validity or enforceability of this Credit Agreement, the Notes, any
of the other Loan Documents or any instrument at anytime constituting, or
intended to constitute, collateral security for the Notes, or for the value of
any such collateral security or for the validity, enforceability or
collectability of any such amounts owing with respect to the Notes, or for any
recitals or statements, warranties or representations made herein or in any of
the other Loan Documents or in any certificate or instrument hereafter furnished
to it by or on behalf of the Borrower, or be bound to ascertain or inquire as to
the performance or observance of any of the terms, conditions, covenants or
agreements herein or in any instrument at any time constituting, or intended to
constitute, collateral security for the Notes or to inspect any of the
properties, books or records of the Borrower or any of its Subsidiaries. The
Agent shall not be bound to ascertain whether any notice, consent, waiver or
request delivered to it by the Borrower or any holder of any of the Notes shall
have been duly authorized or is true, accurate and complete. The Agent has not
made nor does it now make any representations or warranties, express or implied,
nor does it
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assume any liability to the Banks, with respect to the credit worthiness or
financial conditions of the Borrower or any of its Subsidiaries. Each Bank
acknowledges that it has, independently and without reliance upon the Agent or
any other Bank, and based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to enter into this Credit
Agreement.
14.5. PAYMENTS.
14.5.1. PAYMENTS TO AGENT. A payment by the Borrower to the Agent
hereunder or any of the other Loan Documents for the account of any Bank
shall constitute a payment to such Bank. The Agent agrees promptly to
distribute to each Bank such Bank's PRO RATA share of payments received by
the Agent for the account of the Banks except as otherwise expressly
provided herein or in any of the other Loan Documents.
14.5.2. DISTRIBUTION BY AGENT. If in the opinion of the Agent the
distribution of any amount received by it in such capacity hereunder, under
the Notes or under any of the other Loan Documents might involve it in
liability, it may refrain from making distribution until its right to make
distribution shall have been adjudicated by a court of competent
jurisdiction. If a court of competent jurisdiction shall adjudge that any
amount received and distributed by the Agent is to be repaid, each Person
to whom any such distribution shall have been made shall either repay to
the Agent its proportionate share of the amount so adjudged to be repaid or
shall pay over the same in such manner and to such Persons as shall be
determined by such court.
14.5.3. DELINQUENT BANKS. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any
Bank that fails (i) to make available to the Agent its PRO RATA share of
any Loan or to purchase any Letter of Credit Participation or (ii) to
comply with the provisions of Section 13 with respect to making
dispositions and arrangements with the other Banks, where such Bank's share
of any payment received, whether by setoff or otherwise, is in excess of
its PRO RATA share of such payments due and payable to all of the Banks, in
each case as, when and to the full extent required by the provisions of
this Credit Agreement, shall be deemed delinquent (a "Delinquent Bank") and
shall be deemed a Delinquent Bank until such time as such delinquency is
satisfied. A Delinquent Bank shall be deemed to have assigned any and all
payments due to it from the Borrower, whether on account of outstanding
Loans, Unpaid Reimbursement Obligations, interest, fees or otherwise, to
the remaining nondelinquent Banks for application to, and reduction of,
their respective PRO RATA shares of all outstanding Loans and Unpaid
Reimbursement Obligations. The Delinquent Bank hereby authorizes the Agent
to distribute such payments to the nondelinquent Banks in proportion to
their respective PRO RATA shares of all outstanding Loans and Unpaid
Reimbursement Obligations. A Delinquent Bank shall be deemed to have
satisfied in full a delinquency when and if, as a
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result of application of the assigned payments to all outstanding Loans and
Unpaid Reimbursement Obligations of the nondelinquent Banks, the Banks'
respective PRO RATA shares of all outstanding Loans and Unpaid
Reimbursement Obligations have returned to those in effect immediately
prior to such delinquency and without giving effect to the nonpayment
causing such delinquency.
14.6. HOLDERS OF NOTES. The Agent may deem and treat the payee of any Note
or the purchaser of any Letter of Credit Participation as the absolute owner
thereof for all purposes hereof until it shall have been furnished in writing
with a different name by such payee or by a subsequent holder.
14.7. INDEMNITY. The Banks ratably agree hereby to indemnify and hold
harmless the Agent from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which the Agent has not been reimbursed by the Borrower as
required by Section 15), and liabilities of every nature and character arising
out of or related to this Credit Agreement, the Notes, or any of the other Loan
Documents or the transactions contemplated or evidenced hereby or thereby, or
the Agent's actions taken hereunder or thereunder, except to the extent that any
of the same shall be directly caused by the Agent's willful misconduct or gross
negligence.
14.8. AGENT AS BANK. In its individual capacity, FNBB shall have the same
obligations and the same rights, powers and privileges in respect to its
Commitment and the Loans made by it, and as the holder of any of the Notes, as
it would have were it not also the Agent.
14.9. RESIGNATION. The Agent may resign at any time by giving sixty (60)
days prior written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Majority Banks shall have the right to appoint a successor
Agent. Unless a Default or Event of Default shall have occurred and be
continuing, such successor Agent shall be reasonably acceptable to the Borrower.
If no successor Agent shall have been so appointed by the Majority Banks and
shall have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Banks, appoint a successor Agent, which shall be a financial institution
having a rating of not less than A or its equivalent by Standard & Poor's
Corporation. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation, the provisions of this
Credit Agreement and the other Loan Documents shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
15. EXPENSES.
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The Borrower agrees to pay (i) the reasonable costs of producing and
reproducing this Credit Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (ii) any taxes (including any
interest and penalties in respect thereto) payable by the Agent or any of the
Banks (other than taxes based upon the Agent's or any Bank's net income) on or
with respect to the transactions contemplated by this Credit Agreement (the
Borrower hereby agreeing to indemnify the Agent and each Bank with respect
thereto), (iii) the reasonable fees, expenses and disbursements of the Agent's
Special Counsel or any local counsel to the Agent incurred in connection with
the preparation, administration or interpretation of the Loan Documents and
other instruments mentioned herein, each closing hereunder, and amendments,
modifications, approvals, consents or waivers hereto or hereunder, (iv) the
reasonable fees, expenses and disbursements of the Agent incurred by the Agent
in connection with the preparation, administration or interpretation of the Loan
Documents and other instruments mentioned herein, including all title insurance
premiums and surveyor, engineering and appraisal charges, (v) any fees, costs,
expenses and bank charges, including bank charges for returned checks, incurred
by the Agent in establishing, maintaining or handling agency accounts, lock box
accounts and other accounts for the collection of any of the Collateral; (vi)
all reasonable out-of-pocket expenses (including without limitation reasonable
attorneys' fees and costs, which attorneys may be employees of any Bank or the
Agent, and reasonable consulting, accounting, appraisal, investment banking and
similar professional fees and charges) incurred by any Bank or the Agent in
connection with (A) the enforcement of or preservation of rights under any of
the Loan Documents against the Borrower or any of its Subsidiaries or the
administration thereof after the occurrence of a Default or Event of Default and
(B) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to any Bank's or the Agent's relationship with the
Borrower or any of its Subsidiaries and (vii) all reasonable fees, expenses and
disbursements of any Bank or the Agent incurred in connection with UCC searches,
UCC filings or mortgage recordings. The covenants of this Section 15 shall
survive payment or satisfaction of payment of amounts owing with respect to the
Notes.
16. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the Agent and the Banks
from and against any and all claims, actions and suits whether groundless or
otherwise, and from and against any and all liabilities, losses, damages and
expenses of every nature and character arising out of this Credit Agreement or
any of the other Loan Documents or the transactions contemplated hereby
including, without limitation, (i) any actual or proposed use by the Borrower or
any of its Subsidiaries of the proceeds of any of the Loans, (ii) the reversal
or withdrawal of any provisional credits granted by the Agent upon the transfer
of funds from bank agency or lock box accounts or in connection with the
provisional honoring of checks or other items, (iii) any actual or alleged
infringement of any patent, copyright, trademark, service mark or similar right
of the Borrower or any of its Subsidiaries comprised in the Collateral, (iv) the
Borrower or any of its Subsidiaries entering into or performing this Credit
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Agreement or any of the other Loan Documents or (v) with respect to the Borrower
and its Subsidiaries and their respective properties and assets, the violation
of any Environmental Law, the presence, disposal, escape, seepage, leakage,
spillage, discharge, emission, release or threatened release of any Hazardous
Substances or any action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances (including, but not limited
to claims with respect to wrongful death, personal injury or damage to
property), in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding. In
litigation, or the preparation therefor, the Banks and the Agent shall be
entitled to select their own counsel and, in addition to the foregoing
indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses
of such counsel. If, and to the extent that the obligations of the Borrower
under this Section 16 are unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law. The covenants contained
in this Section 16 shall survive payment of satisfaction in full of all other
obligations.
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17. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower or any of its Subsidiaries
pursuant hereto shall be deemed to have been relied upon by the Banks and the
Agent, notwithstanding any investigation heretofore or hereafter made by any of
them, and shall survive the making by the Banks of the Loans, as herein
contemplated, and shall continue in full force and effect so long as any amount
due under this Credit Agreement or the Notes or any of the other Loan Documents
remains outstanding or any Bank has any obligation to make any Loans, and for
such further time as may be otherwise expressly specified in this Credit
Agreement. All statements contained in any certificate or other paper delivered
to any Bank or the Agent at any time by or on behalf of the Borrower or any of
its Subsidiaries pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by the
Borrower or such Subsidiary hereunder.
18. ASSIGNMENT AND PARTICIPATION.
18.1. CONDITIONS TO ASSIGNMENT BY BANKS. Except as provided herein, each Bank
may assign to one or more Eligible Assignees all or a portion of its interests,
rights and obligations under this Credit Agreement (including all or a portion
of its Commitment Percentage and Commitment and the same portion of the Loans at
the time owing to it, its participating interest in the risk relating to any
Letters of Credit and the Notes held by it); PROVIDED that (i) the Agent shall
have given its prior written consent to such assignment, (ii) each such
assignment shall be of a constant, and not a varying, percentage of all the
assigning Bank's rights and obligations under this Credit Agreement, (iii) each
assignment shall be in an amount that is a whole multiple of $1,000,000 the
parties to such assignment shall execute and deliver to the Agent, for recording
in the Register (as hereinafter defined), an Assignment and Acceptance,
substantially in the form of EXHIBIT G hereto (an "Assignment and Acceptance"),
together with any Notes subject to such assignment. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least five
(5) Business Days after the execution thereof, (i) the assignee thereunder shall
be a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder, and (ii) the assigning Bank
shall, to the extent provided in such assignment and upon payment to the Agent
of the registration fee referred to in Section 18.3, be released from its
obligations under this Credit Agreement.
18.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS. By
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
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(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, the assigning Bank makes no representation or
warranty, express or implied, and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
this Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or
the attachment, perfection or priority of any security interest or
mortgage;
(b) the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower and its Subsidiaries or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the performance or
observance by the Borrower and its Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the Obligations of any
of their obligations under this Credit Agreement or any of the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto;
(c) such assignee confirms that it has received a copy of this Credit
Agreement, together with copies of the most recent financial statements
referred to in Section 6.4 and Section 7.4 and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Bank, the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Credit
Agreement;
(e) such assignee represents and warrants that it is an Eligible
Assignee;
(f) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Credit
Agreement and the other Loan Documents as are delegated to the Agent by the
terms hereof or thereof, together with such powers as are reasonably
incidental thereto;
(g) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Credit
Agreement are required to be performed by it as a Bank;
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and
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(i) such assignee acknowledges that it has made arrangements with the
assigning Bank satisfactory to such assignee with respect to its PRO RATA
share of Letter of Credit Fees in respect of outstanding Letters of Credit.
18.3. REGISTER. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentage of, and principal amount of the Revolving Credit Loans owing to and
Letter of Credit Participations purchased by the Banks from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Agent and the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection by the Borrower and
the Banks at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Bank agrees to pay to the
Agent a registration fee in the sum of $2,500.
18.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note subject to
such assignment, the Agent shall (i) record the information contained therein in
the Register, and (ii) give prompt notice thereof to the Borrower and the Banks
(other than the assigning Bank). Within five (5) Business Days after receipt of
such notice, the Borrower, at its own expense, shall execute and deliver to the
Agent, in exchange for each surrendered Note, a new Note to the order of such
Eligible Assignee in an amount equal to the amount assumed by such Eligible
Assignee pursuant to such Assignment and Acceptance and, if the assigning Bank
has retained some portion of its obligations hereunder, a new Note to the order
of the assigning Bank in an amount equal to the amount retained by it hereunder.
Such new Notes shall provide that they are replacements for the surrendered
Notes, shall be in an aggregate principal amount equal to the aggregate
principal amount of the surrendered Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of the assigned Notes. Within five (5) days of issuance of any new Notes
pursuant to this Section 18.4, the Borrower shall deliver an opinion of counsel,
addressed to the Banks and the Agent, relating to the due authorization,
execution and delivery of such new Notes and the legality, validity and binding
effect thereof, in form and substance satisfactory to the Banks. The
surrendered Notes shall be cancelled and returned to the Borrower.
18.5. PARTICIPATIONS. Each Bank may sell participations to one or more
banks or other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan Documents; PROVIDED
that (i) each such participation shall be in an amount of not less than
$1,000,000 (ii) any such sale or participation shall not affect the rights and
duties of the selling Bank hereunder to the Borrower and (iii) the only rights
granted to the participant pursuant to such participation arrangements with
respect to waivers, amendments or modifications of the Loan Documents shall be
the rights to approve waivers, amendments or modifications that would reduce the
principal of or the interest rate on any Loans,
<PAGE>
-73-
extend the term or increase the amount of the Commitment of such Bank as it
relates to such participant, reduce the amount of any commitment fees or Letter
of Credit Fees to which such participant is entitled or extend any regularly
scheduled payment date for principal or interest.
18.6. DISCLOSURE. The Borrower agrees that in addition to disclosures
made in accordance with standard and customary banking practices any Bank may
disclose information obtained by such Bank pursuant to this Credit Agreement to
assignees or participants and potential assignees or participants hereunder;
PROVIDED that such assignees or participants or potential assignees or
participants shall agree (i) to treat in confidence such information unless such
information otherwise becomes public knowledge, (ii) not to disclose such
information to a third party, except as required by law or legal process and
(iii) not to make use of such information for purposes of transactions unrelated
to such contemplated assignment or participation.
18.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER. If any
assignee Bank is an Affiliate of the Borrower, then any such assignee Bank shall
have no right to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Agent pursuant to Section 12.1 or Section
12.2, and the determination of the Majority Banks shall for all purposes of this
Agreement and the other Loan Documents be made without regard to such assignee
Bank's interest in any of the Loans or Reimbursement Obligations. If any Bank
sells a participating interest in any of the Loans or Reimbursement Obligations
to a participant, and such participant is the Borrower or an Affiliate of the
Borrower, then such transferor Bank shall promptly notify the Agent of the sale
of such participation. A transferor Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or modifications
to any of the Loan Documents or for purposes of making requests to the Agent
pursuant to Section 12.1 or Section 12.2 to the extent that such participation
is beneficially owned by the Borrower or any Affiliate of the Borrower, and the
determination of the Majority Banks shall for all purposes of this Agreement and
the other Loan Documents be made without regard to the interest of such
transferor Bank in the Loans to the extent of such participation.
18.8. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Bank shall
retain its rights to be indemnified pursuant to Section 15 with respect to any
claims or actions arising prior to the date of such assignment. If any assignee
Bank is not incorporated under the laws of the United States of America or any
state thereof, it shall, prior to the date on which any interest or fees are
payable hereunder or under any of the other Loan Documents for its account,
deliver to the Borrower and the Agent certification as to its exemption from
deduction or withholding of any United States federal income taxes. If any
Reference Bank transfers all of its interest, rights and obligations under this
Credit Agreement, the Agent shall, in consultation with the Borrower and with
the consent of the Borrower and the Majority Banks, appoint
<PAGE>
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another Bank to act as a Reference Bank hereunder. Anything contained in this
Section 18 to the contrary notwithstanding, any Bank may at any time pledge all
or any portion of its interest and rights under this Credit Agreement (including
all or any portion of its Notes) to any of the twelve Federal Reserve Banks
organized under Section 4 of the Federal Reserve Act, 12 U.S.C. Section 341. No
such pledge or the enforcement thereof shall release the pledgor Bank from its
obligations hereunder or under any of the other Loan Documents.
18.9. ASSIGNMENT BY BORROWER. The Borrower shall not assign or transfer
any of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Banks.
<PAGE>
-75-
19. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes shall be in writing and shall be delivered in
hand, mailed by United States registered or certified first class mail, postage
prepaid, sent by overnight courier, or sent by telegraph, telecopy, telefax or
telex and confirmed by delivery via courier or postal service, addressed as
follows:
(a) if to the Borrower, at 60 State Street, Boston, Massachusetts
02110, Attention: Rene Lefebvre, Chief Financial Officer, or at such other
address for notice as the Borrower shall last have furnished in writing to
the Person giving the notice;
(b) if to the Agent, at 100 Federal Street, Boston, Massachusetts
02110, USA, Attention: Mitchell B. Feldman, Director, or such other address
for notice as the Agent shall last have furnished in writing to the Person
giving the notice; and
(c) if to any Bank, at such Bank's address set forth on SCHEDULE 1
hereto, or such other address for notice as such Bank shall have last
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
20. GOVERNING LAW.
THIS CREDIT AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS, EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER
AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENT TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH
SUIT BEING MADE UPON THE BORROWER BY MAIL AT
<PAGE>
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THE ADDRESS SPECIFIED IN Section 19. THE BORROWER HEREBY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
21. HEADINGS.
The captions in this Credit Agreement are for convenience of reference only
and shall not define or limit the provisions hereof.
22. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when so
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Credit Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought.
23. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit Agreement nor any term
hereof may be changed, waived, discharged or terminated, except as provided in
Section 25.
24. WAIVER OF JURY TRIAL.
The Borrower hereby waives its right to a jury trial with respect to any
action or claim arising out of any dispute in connection with this Credit
Agreement, the Notes or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of such rights and
obligations. Except as prohibited by law, the Borrower hereby waives any right
it may have to claim or recover in any litigation referred to in the preceding
sentence any special, exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages. The Borrower (i)
certifies that no representative, agent or attorney of any Bank or the Agent has
represented, expressly or otherwise, that such Bank or the Agent would not, in
the event of litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that the Agent and the Banks have been induced to enter into this
Credit Agreement, the other Loan Documents to which it is a party by, among
other things, the waivers and certifications contained herein.
25. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Credit Agreement, any
consent or approval required or permitted by this Credit Agreement to be given
by one or more or all of the Banks may be given, and any term of this Credit
Agreement or of
<PAGE>
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any other instrument related hereto or mentioned herein may be amended, and the
performance or observance by the Borrower of any terms of this Credit Agreement
or such other instrument or the continuance of any Default or Event of Default
(other than Defaults of Events of Default set forth in Sections 12.1(a) and (b))
may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Borrower and the written consent of the Majority Banks. Notwithstanding the
foregoing, (i) the rate of interest on the Notes, the term of the Notes, the
amount of the Commitments of the Banks, and the amount of Commitment Fee or
Letter of Credit Fees hereunder may not be changed without the written consent
of the Borrower and the written consent of each Bank directly or indirectly
affected thereby; (ii) the definition of Majority Banks may not be amended,
Collateral may not be released, the Guaranty may not be released, the Defaults
or Events of Default set forth in Sections 12.1(a) and (b) may not be waived
(either generally or in a particular instance and either retroactively or
prospectively and this Section 25 may not be amended, without the written
consent of all of the Banks; (iii) and the amount of the Agent's fee or Letter
of Credit Fees and Section 14 may not be amended without the written consent of
the Agent. No waiver shall extend to or affect any obligation not expressly
waived or impair any right consequent thereon. No course of dealing or delay or
omission on the part of either Bank in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon
the Borrower shall entitle the Borrower to other or further notice or demand in
similar or other circumstances.
26. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one clause
or provision hereof shall be held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Credit Agreement in any jurisdiction.
27. TRANSITIONAL ARRANGEMENTS.
27.1. PRIOR LOAN AGREEMENT SUPERSEDED. This Credit Agreement shall
supersede the Prior Loan Agreement in its entirety, except as provided in this
Section 28. On the Closing Date, the rights and obligations of the parties
under the Prior Loan Agreement and the "Notes" as defined therein shall be
subsumed within and be governed by this Credit Agreement and the Notes;
provided, however, that each of the "Revolving Credit Loans" (as defined in the
Prior Loan Agreement) outstanding under the Prior Loan Agreement on the Closing
Date shall, for purposes of this Credit Agreement, be Revolving Credit Loans.
27.2. RETURN AND CANCELLATION OF NOTES. Upon its receipt of the Notes to
be delivered hereunder on the Closing Date, each Bank will promptly return to
the
<PAGE>
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Borrower, marked "Canceled", the notes of the Borrower held by such Bank
pursuant to the Prior Loan Agreement.
27.3. INTEREST AND FEES UNDER SUPERSEDED AGREEMENT. All interest and all
commitment, facility and other fees and expenses owing or accruing under or in
respect of the Prior Loan Agreement shall be calculated as of the Closing Date
(prorated in the case of any fractional periods), and shall be paid on the
Closing Date in accordance with the method specified in the Prior Loan
Agreement, as if the Prior Loan Agreement were still in effect.
27.4. NO CLAIMS UNDER PRIOR LOAN AGREEMENT. Each Bank wishes (and the
Borrower agrees) to eliminate any possibility that any past conditions, acts,
omissions, events, circumstances or matters would impair or otherwise adversely
affect such Bank's rights, interests, contracts, collateral security or
remedies. Therefore, the Borrower unconditionally releases, waives and forever
discharges (i) any and all liabilities, obligations, duties, promises or
indebtedness of any kind of such Bank to the Borrower regarding the execution,
delivery or performance of the Prior Loan Agreement or any of the other Loan
Documents (as defined in the prior Loan Agreement), except the obligations to be
performed by such Bank for the Borrower as expressly stated in this Credit
Agreement and the other Loan Documents (as defined in this Credit Agreement),
and (ii) all claims, offsets, causes of action, suits or defenses of any kind
whatsoever (if any), whether known or unknown, which the Borrower might
otherwise have against such Bank or any of its directors, offices, employees or
agents, in either case (i) or (ii), on account of any condition, act, omission,
event, contract, liability,
<PAGE>
-79-
obligation, indebtedness, claim cause of action, defense, circumstance or matter
of any kind whatsoever which existed, arose or occurred at any time prior to the
date hereof regarding the execution, delivery or performance of the Prior Loan
Agreement or any of the Loan Documents (as defined in the Prior Loan Agreement).
<PAGE>
-80-
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
HPSC, INC.
By:
---------------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
individually and as Agent
By:
---------------------------------------
Name:
Title:
BANK OF AMERICA ILLINOIS
By:
----------------------------------------
Name:
Title:
SHAWMUT BANK, N.A.
By:
----------------------------------------
Name:
Title:
CORESTATES BANK, N.A.
By:
----------------------------------------
Name:
Title:
<PAGE>
-81-
THE DAIWA BANK, LIMITED
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
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