SECURITIES AND EXCHANGE COMMISSION
WASHINGTON DC 20549
-------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) December 27, 1999
CHEMFAB CORPORATION
(Exact Name of Registrant as Specified in Charter)
<TABLE>
<CAPTION>
<S> <C> <C>
DELAWARE 1-12767 03-022-1503
State or Other Jurisdiction of (Commission File Number) IRS Employer Identification No.
Incorporation)
</TABLE>
701 Daniel Webster Highway, Merrimack, NH 03054
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code (603) 424-9000
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This Current Report on Form 8-K contains forward-looking statements
that involve risks and uncertainties. These statements relate to future events
or and therefore are inherently uncertain. Actual performance and results may
differ materially from those projected or suggested due to certain risks and
uncertainties, including acquisition and transition challenges, assimilation
issues in the consolidation process, customer reaction to the acquisitions, and
operational and other risks relating to the combination of separate businesses.
Additional information concerning certain other risks and uncertainties that
could cause actual results to differ materially from those projected or
suggested, is contained in Chemfab Corporation's Annual Report on Form 10-K for
the fiscal year ended June 30, 1999, which has been filed with the Securities
and Exchange Commission. The forward-looking statements contained herein
represent the judgment of Chemfab Corporation as of the date of this Current
Report on Form 8-K and Chemfab Corporation cautions against the placement of
undue reliance on such statements.
Item 2. Acquisition or Disposition of Assets
On December 27, 1999, UROK Acquisition Corp. ("UROK"), a Delaware
corporation and an indirect wholly-owned subsidiary of Chemfab Corporation
("Chemfab"), merged (the "Merger") with and into UroQuest Medical Corporation, a
Delaware corporation ("UroQuest"), with UroQuest surviving the merger, pursuant
to the Agreement and Plan of Merger, dated as of June 3, 1999 (the "Merger
Agreement"), by and among Chemfab, UROK and UroQuest.
UroQuest, through its wholly-owned subsidiary, Bivona, Inc. ("Bivona"),
designs, manufactures and markets proprietary disposable silicone elastomer
products and silicone elastomer components used in products serving the
healthcare and personal care industry. Bivona accounts for virtually all of
UroQuest's consolidated revenues. Going forward, the assets of UroQuest and
Bivona are expected to be used as they had been immediately prior to the Merger
and Bivona is expected to continue to serve its existing customers.
At the closing of the Merger, each share of common stock, $.001 par
value per share, of UroQuest, issued and outstanding immediately prior to the
closing of the Merger, was cancelled and extinguished and automatically
converted into and became a right to receive $2.2665 per share, pursuant to the
Merger Agreement, upon surrender of the certificates that evidenced such shares.
The total merger consideration is approximately $29,430,234, with net merger
consideration to be paid to the stockholders of UroQuest of approximately
$28,419,234 and aggregate payments made to settle outstanding options of
approximately $1,011,000. The total merger consideration was agreed to as the
result of arms'-length negotiations in the Spring of 1999 between Chemfab and
UroQuest.
The recipients of the total merger consideration were the former
stockholders of UroQuest, consisting of former directors and officers of
UroQuest and numerous other stockholders, none of whom had any material
relationship with Chemfab or its affiliates to the best of Chemfab's knowledge.
Acquisition financing was provided to Chemfab pursuant to the Revolving
Credit and Term Loan Agreement, dated as of November 29, 1999 by and among
Chemfab, certain wholly-owned subsidiaries of Chemfab, and Brown Brothers
Harriman & Co., as Lender and as Agent for itself and the other Lenders, Fleet
Bank NH, Citizens Bank of New Hampshire, Bank of New Hampshire and other Lenders
from time to time a party thereto, a copy of which is filed as Exhibit 99.1 to
this Current Report on Form 8-K.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Financial Statements of UroQuest
The following financial statements of UroQuest are incorporated by
reference to pages F-2 through F-20 of UroQuest's Annual Report on Form 10-K for
the year ended December 31, 1998 (Commission File Number 0-20963).
o Consolidated Statements of Operations for the Years Ended December 31, 1998,
1997 and 1996 o Consolidated Balance Sheets at December 31, 1998 and 1997
o Consolidated Statements of Stockholders' Equity for the Years Ended December
31, 1998, 1997 and 1996
o Consolidated Statements of Cash Flows or the Years Ended December 31, 1998,
1997 and 1996 o Notes to Consolidated Financial Statements
o Independent Auditors' Reports
The following financial statements of UroQuest are incorporated by
reference to pages 2 through 8 of the UroQuest Quarterly Report on Form 10-Q for
the quarter ended September 30, 1999.
o Condensed Consolidated Statements of Operations for the Three Months and the
Nine Months Ended September 30, 1999 and 1998 (unaudited)
o Condensed Consolidated Balance Sheets as of September 30, 1999 (unaudited) and
December 31, 1998 o Condensed Consolidated Statements of Cash Flows for the Nine
Months Ended September 30, 1999 and 1998 (unaudited)
o Notes to Condensed Consolidated Financial Statements
(b) Pro forma Financial Information
Pro forma financial information required by this item will be filed by
amendment to this initial report no later than 60 days after the date
an initial report must be filed with the Securities and Exchange
Commission.
(c) Exhibits
Exhibit 23.1 Consent of Ernst & Young LLP
Exhibit 23.2 Consent of KPMG LLP
Exhibit 99.1 Revolving Credit and Term Loan Agreement, dated as of
November 29, 1999 by and among Chemfab, certain wholly-owned
subsidiaries of Chemfab, and Brown Brothers Harriman & Co., as
Lender and as Agent for itself and the other Lenders, Fleet
Bank NH, Citizens Bank of New Hampshire, Bank of New Hampshire
and other Lenders from time to time a party thereto.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CHEMFAB CORPORATION
By: /S/JOHN W. VERBICKY
John W. Verbicky
President and Chief Executive Officer
Dated: January 11, 2000
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP
We consent to the incorporation by reference in the Registration Statements
(Forms S-8 No. 2-89831, No. 33-61946, No. 333-07139 and No. 333-46985 and Form
S-3 No. 33-18264) pertaining to the 1986 Stock Option Plan, the 1991Stock Option
Plan and the 1991 Chemfab Employee Stock Option Plan, the Amended and Restated
1991 Stock Option Plan, the Third Amended and Restated 1991 Stock Option Plan,
and the 1986 Stock Option Plan and the 1983 Incentive Stock Option of Chemfab
Corporation, of our report dated February 12, 1999 with respect to the
consolidated financial statements of Uroquest Medical Corporation as of December
31, 1998 and 1997 and for the years then ended incorporated by reference in this
Current Report (Form 8-K).
/s/Ernst & Young LLP
Palo Alto, California
January 6, 2000
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS'
The Board of Directors and Stockholders
UroQuest Medical Corporation:
We consent to incorporation by reference of our report dated February 10, 1997,
with respect to the consolidated statements of operations, stockholders' equity,
and cash flows for the year ended December 31, 1996, which report is
incoporated by reference, in Form 8K of Chemfab Corporation dated January 10,
2000.
/S/KPMG LLP
Salt Like City, Utah
January 10, 2000
EXHIBIT 99.1
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This REVOLVING CREDIT AND TERM LOAN AGREEMENT is made as of the 29th
day of November, 1999 by and among CHEMFAB CORPORATION, a Delaware corporation
("CHEMFAB" or the "Borrower"), those wholly-owned subsidiaries of CHEMFAB now or
hereafter listed in Exhibit A hereto which are presently or hereafter become
signatories hereof by executing and delivering a counterpart signature page
hereto to the Agent (the "Subsidiaries", and with CHEMFAB, the "Borrowers") and
BROWN BROTHERS HARRIMAN & CO., a New York limited partnership ("BBH&Co"), as a
Lender (as defined below), and as Agent (as defined below) for itself and the
other Lenders, FLEET BANK NH, a banking corporation organized under the laws of
New Hampshire ("Fleet"), CITIZENS BANK NEW HAMPSHIRE, a banking corporation
organized under the laws of New Hampshire ("Citizens"), BANK OF NEW HAMPSHIRE, a
banking corporation organized under the laws of New Hampshire ("BNH") and the
other Lenders from time to time party hereto.
ss.1. DEFINITIONS AND RULES OF INTERPRETATION.
ss.1.1. Definitions. The following terms shall have the meanings set forth
in this ss.1 or elsewhere in the provisions of this Credit Agreement referred to
below:
Adjusted Tangible Net Worth. Means Borrowers' Tangible Net
Worth net of intangible assets acquired in the UroQuest Transaction. After the
UroQuest Transaction, Adjusted Tangible Net Worth shall mean Borrowers' Tangible
Net Worth, reduced by the amount of intangible assets acquired up to and
including the UroQuest Transaction, but not including any intangible assets
acquired in connection with any subsequent acquisitions.
Affected Lender. The meaning specified in ss.17.4.
Affiliate. As applied to any Person, a spouse of such Person,
any relative (by blood, adoption or marriage) of such Person within the third
degree, any managing member, director or officer of such Person, any
corporation, association, firm or other entity of which such Person is a
managing member, director or officer and any other Person direct or indirectly
controlling, controlled by or under direct or indirect common control with such
Person.
Agent. BBH&Co in its capacity as agent for the Lenders
hereunder, as well as its successors and assigns in such capacity pursuant to
ss.12.8.
Authorized Share Repurchases. The meaning specified in ss.7.8.
Available Revolving Commitment. The Total Revolving Commitment
less the sum of the outstanding principal amounts advanced as Revolving Credit
Loans.
Base Rate. For any date, a rate per annum equal to the higher
of (i) the Federal Funds Effective Rate in effect on such day plus one-half of
one percent (.50%) or (ii) the annual rate of interest publicly announced from
time to time by the Agent as its "commercial base rate" in effect on such day.
Base Rate Loans. Loans bearing interest calculated by
reference to the Base Rate.
Base Rate Margin. The meaning specified in ss.2.6(a).
Basis Point. One one hundredth of one percent.
Borrower. CHEMFAB CORPORATION.
Borrowers. The Borrower and its wholly-owned Subsidiaries
which are now or hereafter become parties to this Credit Agreement.
Breakage Costs. With respect to any LIBOR Loan or EURIBOR Loan
means, the product of (i) the amount of the LIBOR Loan or EURIBOR Loan which is
pre-paid or failed to be borrowed (after presentation by the borrower of a LIBOR
or EURIBOR Loan Request) times (ii) the difference between the existing
effective rate on such LIBOR Loan or EURIBOR Loan and the rate at which the
Agent determines that the amount of any such Loan can be placed in the London
Interbank Market, EURO Interbank Market or in United States Government
Securities (whichever rate is higher) for the remainder of the Interest Period
times (iii) the number of days until the expiration of the Interest Period
divided by 360, plus any other costs and expenses which Lenders incur resulting
from the Borrowers' prepayment of, or failure to borrow such Loan.
Business Day. With respect to transactions between the
Borrowers and the Lenders, any day on which banking institutions in Boston,
Massachusetts are open for the transaction of banking business and, in the case
of LIBOR Loans and EURIBOR Loans, a day which is a LIBOR Business Day, and with
respect to transactions among the Lenders, any day on which banking institutions
in the respective jurisdictions of the Lenders are open for the transaction of
banking business.
Capital Expenditures. Any payment made directly or indirectly
by the Borrowers for the purpose of acquiring or constructing fixed assets, real
property or equipment which in accordance with GAAP would be added as a debit to
the Consolidated fixed asset account of Borrowers, including without limitation
amounts paid or payable under any conditional sale or other title retention
agreement or under any lease or other periodic payment arrangement which is of
such a nature that payment obligations of Borrowers thereunder would be required
by GAAP to be capitalized and shown as liabilities on the Consolidated balance
sheet of the applicable Borrower.
Capitalization. As of the date of any determination thereof,
the sum of (a) Tangible Net Worth and (b) Indebtedness of Borrowers on a
Consolidated basis.
Capitalized Leases. Leases under which a Person is the lessee
or obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of such Person in accordance
with GAAP.
Cash Flow. For any period, means Borrowers' EBITDA minus non-
financed Capital Expenditures and cash taxes paid during such period.
Change in Control. Shall be deemed to have occurred if any
Person or group (within the meaning of Rule 13d-5 of the Securities and Exchange
Commission as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing more than 50%, on a fully-diluted
basis, of the aggregate ordinary voting power of any Borrower.
Closing Date. The first date on which the conditions set
forth in ss.10 and ss.11 have been satisfied and any Loans are made.
Code. The Internal Revenue Code of 1986, as amended.
Commitment. As to any Lender, such Lender's portion of the
Total Commitment equal to such Lender's Percentage.
Commitment Fee. The meaning specified in ss.2.2(a)
Compliance Certificate. The certificate described in ss.6.2(f)
Consolidated. With reference to any term herein, shall mean
that term as applied to the accounts of Borrowers consolidated with their
Subsidiaries in accordance with GAAP.
Credit Agreement. This Revolving Credit and Term Loan
Agreement, including the Schedules and Exhibits hereto, as the same may be
modified or amended hereafter.
Current Lines of Business. The lines of business conducted by
the Borrower on the Closing Date, giving effect to the UroQuest Transaction, and
any business and activities incidental thereto, including: the design,
manufacture, fabrication, marketing, sale and distribution of polymer-based
engineered products for specialized operating environments, including the
manufacturing of fluoropolymer composites, fluoroplastics, fluoroelastomers,
silicone elastomers and adhesives, and products such as laminates, films, coated
fabrics, tapes, seals, diaphragms, gaskets, sleeves, tubing and medical devices
and assemblies.
Debt Coverage Ratio. The meaning specified in ss.2.6(a).
Dollars or $. Dollars in lawful currency of the United States
of America.
Drawdown Date. The date on which any Loan is made or is to be
made, and the date on which any Loan is converted or continued in accordance
with ss.2.8.
EBITDA. For any period, the Consolidated Net Income of
Borrowers for such period adjusted by adding back thereto amounts deducted in
computing such Consolidated Net Income in respect of (a) Interest Expense of
Borrowers, (b) taxes in respect of income and profits of Borrowers and (c)
depreciation and amortization of Borrowers.
Employee Benefit Plan. Any employee benefit plan within the
meaning of Section 3(3) of ERISA maintained or contributed to by any Borrower or
any ERISA Affiliate, or with respect to which any Borrower or any ERISA
Affiliate has actual or contingent liability, in each case other than a
Multiemployer Plan.
Environmental Laws. Any and all applicable current and future
treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any governmental authority, relating in any way to the
environment, preservation or reclamation of natural resources or human exposure
to or the management or Release or threatened Release of any Hazardous Material.
ERISA. The Employee Retirement Income Security Act of 1974,
as amended.
ERISA Affiliate. Any Person which is treated as a single
employer with any Borrower under Section 414 of the Code or Section 4001 of
ERISA.
ERISA Reportable Event. A reportable event with respect to a
Guaranteed Pension Plan within the meaning of ss.4043 of ERISA and the
regulations promulgated thereunder as to which the requirement of notice has not
been waived.
EURIBOR. With respect to any EURIBOR Loan for any Interest
Period, EURIBOR means the EURO Interbank Offered Rate sponsored by the European
Banking Federation among 57 EURO zone banks, as determined by the Agent at
approximately 11:00 a.m. Boston time three (3) Business Days prior to the date
upon which the Interest Period is to commence, which determination by the Agent
shall, in the absence of manifest error, be conclusive. In the event that such
rate is not available at such time for any reason, the "EURIBOR" with respect to
such EURIBOR Loan for such Interest Period shall be the rate at which
EURO-denominated deposits of the equivalent of US$5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of
the Agent (or, if the Agent does not have such an office, such office of any
other Lender, as selected by the Agent) in immediately available funds through
the European Banking Federation at approximately 11:00 a.m., London time, three
(3) Business Days prior to the commencement of such Interest Period.
EURIBOR Loan. Loans bearing interest calculated by reference
to the EURIBOR.
EURIBOR Margin. The meaning specified in ss.2.6 (a).
Euro. Means the official currency established by the European
Banking Federation among 57 EURO zone banks.
Event of Default. The meaning specified in ss.9.1.
Facility Fee. A fee in the amount of 10 Basis Points times the
Total Commitment, which Facility Fee is due and payable to the Agent for the
ratable benefit of the Lenders on the Closing Date, in proportion to each
Lender's Commitment, and which Facility Fee is deemed to be fully earned and
non-refundable on the Closing Date.
Federal Funds Effective Rate. For any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding 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 (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
GAAP. Generally accepted accounting principles in the United
States of America.
Guaranteed Pension Plan. Any Employee Benefit Plan, the
benefits of which are guaranteed on termination in full or in part by the PBGC
pursuant to Title IV of ERISA.
Hazardous Materials. All explosive or radioactive substances
or wastes, hazardous or toxic substances or wastes, pollutants, solid, liquid or
gaseous wastes, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls or materials or
equipment containing polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
Indebtedness. All obligations, contingent and otherwise, that
in accordance with GAAP should be classified upon a Person's balance sheet as
liabilities, including: (a) all debt and similar monetary obligations, whether
direct or indirect; (b) all liabilities secured by any mortgage, pledge,
security interest, lien, charge, or other encumbrance existing on property owned
or acquired by such Person subject thereto, whether or not the liability secured
thereby shall have been assumed; (c) all obligations in respect of Capitalized
Leases; and (d) all guarantees, endorsements and other contingent obligations
whether direct or indirect in respect of indebtedness owed by 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 Expense. For any period, the aggregate amount
(determined in accordance with GAAP) of interest paid or payable during such
period by any Person in respect of all Indebtedness for borrowed money,
Capitalized Leases and the deferred purchase price of property.
Interest Payment Date. (a) As to any Base Rate Loan, the last
business day of each calendar month and any date on which such Base Rate Loan is
converted to a LIBOR Loan or a EURIBOR Loan; and (b) as to any LIBOR Loan or
EURIBOR Loan, the last day of the Interest Period relating to such LIBOR Loan or
EURIBOR Loan; provided, that in the event that such Interest Period is more than
90 days, each 90th day during such Interest Period and the last day of such
Interest Period.
Interest Period. With respect to each LIBOR Loan or EURIBOR
Loan, the period of one, two, three or six months, as selected by any Borrower
commencing on the Drawdown Date of such LIBOR Loan or EURIBOR Loan; provided
that the foregoing provisions relating to Interest Periods are subject to the
following:
(a) if any Interest Period would otherwise end on a
day that is not a LIBOR Business Day, that Interest Period shall be extended to
the next succeeding LIBOR 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 LIBOR Business
Day; and
(b) the Borrowers shall not be entitled to convert
any Loan to a LIBOR Loan or a EURIBOR Loan with an
Interest Period that would extend beyond the Maturity Date.
Investments. All expenditures made and all liabilities
incurred (contingently or otherwise), without duplication, for the acquisition
of stock or Indebtedness of, or for loans, advances, capital contributions or
transfers of property to, or in respect of any guaranties (or other commitments
as described under Indebtedness), or obligations of, any Person. In determining
the aggregate amount of Investments outstanding at any particular time: (a) the
amount of any Investment represented by a guaranty shall be taken at not less
than the principal amount of the obligations guaranteed and still outstanding;
(b) there shall be included as an Investment all interest accrued with respect
to Indebtedness constituting an Investment unless and until such interest is
paid; (c) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
Lenders. Each Person which may from time to time own a
Percentage of the Total Commitment, including BBH&Co in its capacity as a
Lender; provided, however that the term "Lender" shall not include any
Participant.
LIBOR. With respect to any LIBOR Loan for any Interest Period,
the rate appearing on Page 3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Agent from time to time for
purposes of providing quotations of interest rates applicable to Dollar deposits
in the London interbank market) at approximately 11:00 a.m., London time, two
(2) Business Days prior to the commencement of such Interest Period, as the rate
for U.S. dollar deposits with a maturity comparable to such Interest Period. In
the event that such rate is not available at such time for any reason, the
"LIBOR" with respect to such LIBOR Loan for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the Agent
(or, if the Agent does not have such an office, such office of any other Lender,
as selected by the Agent) in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two (2) Business Days prior to
the commencement of such Interest Period.
LIBOR Business Day. Any Business Day on which commercial banks
are open for international business (including dealings in Dollar deposits or in
EURO deposits) in London, England.
LIBOR Loans. Loans bearing interest calculated by reference to
the LIBOR.
LIBOR Margin. The meaning specified in ss.2.6.
Licenses. The meaning specified in ss.5.5.
Loan Documents. This Credit Agreement, the Notes, each
subordination agreement, any interest rate swap or other interest rate
protection agreements, and any other document, instrument or agreement executed
and delivered in connection herewith.
Loan Request. The meaning specified in ss.2.7.
Loans. The Term Loan and the Revolving Credit Loans.
Material Adverse Change. A deterioration since Borrowers' June
30, 1999 fiscal year end financial statements in the quality or value of the
business or assets, or in the financial condition, income or prospects of the
Borrowers on an individual or consolidated basis, whether such is the result of:
(i) general economic or weather conditions affecting one or more of the
industries in which Borrowers and/or the Subsidiaries are engaged, (ii)
difficulties in obtaining supplies and raw materials, (iii) fire, flood or other
natural calamities, (iv) environmental claims, litigation, remediation or
pollution, (v) regulatory changes, judicial decisions, war or other governmental
actions, or (vi) any other event or development whether or not related to those
enumerated herein.
Maturity Date. Five years from the Closing Date with respect
to the Term Loan and five years from the Closing Date with respect to the
the Revolving Loans, subject to extension pursuant to ss.2.4.
Moody's . Moody's Investors Service, Inc.
Multiemployer Plan. Any multiemployer plan within the meaning
of Section 3(37) of ERISA maintained or contributed to by any Borrower or any
ERISA Affiliate or with respect to which any Borrower or any ERISA Affiliate has
actual or contingent liability.
Net Income. Income (or loss), excluding extraordinary items of
income, of a Person for the period in question (taken as a cumulative whole),
after all operating expenses, reserves and other proper deductions (including
any minority interest expense), all determined in accordance with GAAP. For
purposes hereof, the Consolidated Net Income of Borrowers shall include the Net
Income of any other Person acquired prior to the date that it either becomes a
Subsidiary of Borrowers, is merged into or consolidated with Borrowers, or such
other Person's assets are assigned, directly or indirectly to Borrowers,
provided that, in the case of each of the foregoing, (i) the Net Income of such
other Person shall only be so included to the extent that such Net Income is
attributable to such other Person or to such assets as are acquired from such
other Person for the relevant period, all to the satisfaction of the Required
Lenders, and (ii) any discrepancies in accounting treatment between Borrowers
and such other Person are conformed so as to make the foregoing determination to
the satisfaction of the Required Lenders.
Notes. The Term Note and the Revolving Credit Note.
Obligations. All indebtedness, obligations and liabilities of
Borrowers to the Lenders, individually or collectively, existing on the date of
this Credit Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under the Loan Documents or in respect of any of
the Loans or the Notes or other instruments at any time evidencing any thereof.
Outstanding. With respect to the Loans, the aggregate unpaid
principal thereof as of any date of determination.
Participant. The meaning specified in ss.17.3.
PBGC. The Pension Benefit Guaranty Corporation created by
ss.4002 of ERISA and any successor entity or entities having similar
responsibilities.
Percentage. The meaning specified in ss.2.1(a).
Permitted Liens. The meaning specified in ss.7.2.
Person. Any individual, corporation, partnership, limited
liability company, trust, unincorporated association, joint venture,
organization, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof
Projections. Borrowers' forecasted balance sheets and
statements of income and surplus and cash flow, all prepared on a basis
consistent with Borrowers' historical financial statements, together with
appropriate supporting details and statements of underlying assumptions.
Qualified Plan. A pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) of the IRC which any
Borrower or any ERISA Affiliate sponsors, maintains, or to which any such Person
makes, is making, or is obligated to make, contributions, or, in the case of a
multiple-employer plan (as described in Section 4064(a) of ERISA), has made
contributions at any time during the immediately preceding period covering at
least five (5) plan years, but excluding any Multiemployer Plan.
Record. The grid attached to the Revolving Credit Note, or the
continuation of such grid, or any other similar record, including computer
records, maintained by the Agent with respect to any Revolving Credit Loan
referred to in the Revolving Credit Note.
Release. Any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
Replacement Lender. The meaning specified in ss.17.4.
Required Lenders. Any two or more Lenders holding in the
aggregate at least sixty-six and two-thirds percent (66 2/3%) of the amounts
Outstanding on the Loans or, if no amounts are Outstanding hereunder, of the
Percentages of the Total Commitment.
Revolving Credit Loan. A revolving credit loan made pursuant
to ss.2.1 (b).
Revolving Credit Note. The meaning specified in ss.2.4.
Revolving Loan Commitment. The meaning specified in ss.2.1.
S&P. Standard & Poor's Ratings Group, a division of the
McGraw Hill Companies, Inc.
Senior Debt. All Indebtedness of a Person and its Subsidiaries
(without duplication) in respect of borrowed money, Capitalized Leases and the
deferred purchase price of property, but exclusive of Subordinated Debt.
Several Borrower(s). Any of the Borrowers listed in Schedule
4.10 hereto whose liability to the Lenders shall be several and not joint and
several to the extent provided in ss.4.10.
Subordinated Debt: (a) The existing Indebtedness of Borrowers
which is designated as "Subordinated Debt" in Schedule 5.8 attached hereto, and
(b) any other Indebtedness of Borrowers which matures in its entirety after the
Maturity Date of the Loans (as the same may be extended by the Lenders) and by
its terms (or by the terms of the instrument under which it is outstanding and
to which appropriate reference is made in the instrument evidencing such
Subordinated Debt) is made subordinate and junior in right of payment to the
Notes and to Borrowers' other obligations to the Lenders hereunder by provisions
reasonably satisfactory in form and substance to the Required Lenders and their
counsel.
Subsidiary. Any partnership, corporation, association, trust,
or other business entity of which any Borrower shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority of the
outstanding Voting Interests.
Tangible Net Worth. As of the date of any determination
thereof, the difference of: (a) Borrowers' stockholders'equity; minus (b) the
sum of: (i) all intangible assets of Borrower; and (ii) all amounts due to
Borrower from any of its Affiliates(other than any other Borrower), in each case
calculated on a Consolidated basis.
Term Loan. The term loan made in accordance with ss.2.1(c).
Term Loan Commitment. The meaning specified in ss.2.1.
Term Note. The meaning specified in ss.2.5.
<PAGE>
Total Commitment. The sum of the Revolving Commitment and the
Term Loan Commitment.
Unfunded Benefit Liability. The excess of a Qualified Plan's or
a multiemployer Plan's benefit liabilities (as defined in Section 4001 (a)(I 6)
of ERISA) over the current value of such plan's assets, determined in accordance
with the assumptions used by the plan's actuaries for funding the plan pursuant
to Section 412 of the Code for the applicable plan year.
UroQuest Medical Corporation or UroQuest. The surviving
corporation of the statutory merger between Borrower's wholly-owned subsidiary,
Urok Acquisition Corp. and UroQuest Medical Corporation pursuant to that
Agreement and Plan of Merger among such corporations and the Borrower dated as
of June 3, 1999.
UroQuest Transaction. The transactions contemplated by that
Agreement and Plan of Merger among Urok Acquisition Corp. and UroQuest Medical
Corporation and the Borrower dated as of June 3, 1999.
Voting Interests. 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 partnership, 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.
ss.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 unless otherwise expressly
stated.
(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 GAAP applied on a
consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including"
are not limiting.
(g) Reference to a particular "ss." refers to that
section of this Credit Agreement unless otherwise
indicated.
(h) 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.
(i) Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; provided that, if Borrower notifies
the Agent that Borrower requests an amendment to any provision hereof to
eliminate the effect of any change in GAAP occurring after the date
hereof or in the application thereof on the operation of such provision and
the Required Lenders agree (or if the Agent notifies Borrower that the Required
Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted
on the basis of GAAP as in effect and applied immediately before such change
shall have become effective until such notice shall have been withdrawn or
such provision amended in accordance herewith.
ss.2. THE CREDIT FACILITIES.
ss.2. 1. Amounts and Terms of the Facilities.
(a) Commitments. The Borrower wishes to
establish for the benefit of the Borrowers (i) a revolving credit facility with
the Lenders in an aggregate principal amount at any one time outstanding not
in excess of $30,000,000 (as such amount may be reduced from time to time
pursuant to ss.2.3) and (ii) a term loan facility in the maximum initial
principal amount of $30,000,000 as further described in
ss.2.1(c) . Each Lender is severally willing to fund its Percentage of
Commitment of such revolving credit and term loan facilities on behalf of the
Borrowers, subject to the terms and conditions hereafter set forth, in the
aggregate maximum amounts at any one time outstanding set forth opposite each
Lender's name and in the respective percentages set forth opposite each Lender's
name which shall be applicable to such revolving credit facility and such term
loan facility hereunder (hereinafter referred to as such Lender's "Percentage").
Each Lender's obligation to make Revolving Credit Loans, to fund the Term Loan
and to purchase interests in the Loans in accordance with this ss.2.1(b) and
ss.2.1(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including: (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against the Agent, Borrowers or any other
Person for any reason whatsoever arising other than under the Loan Documents or
applicable law, (B) the occurrence or continuance of any Event of Default or any
event which, with the giving of notice or passage of time or both would
constitute an Event of Default, but only if the Required Lenders have agreed not
to terminate the Borrowers' right to request Loans hereunder, (C) any inability
of Borrowers to satisfy the conditions precedent to borrowing set forth in this
Credit Agreement on the date upon which such interest is to be purchased, which
conditions have been waived by the Required Lenders, or by all of the Lenders,
in the case of conditions precedent which may only be waived by all of the
Lenders pursuant to ss.25, or (D) any other circumstance, happening or event
whatsoever which the Agent, the Required Lenders or all of the Lenders (as
applicable under this Credit Agreement) has determined shall not affect the
Borrowers' right to request Loans under this Credit Agreement, whether or not
similar to any of the foregoing. If any Lender does not make available to the
Agent the amount required pursuant to ss.2.1(b) or ss.2.1(c), the Agent shall be
entitled to recover such amount on demand from such Lender, together with
interest thereon for each day from the date of nonpayment until such amount is
paid in full (the "Non-payment Period") at a rate equal to the overnight federal
funds rate for the Non-payment Period plus the applicable LIBOR or EURIBOR
Margin, as set forth in ss.2.6(a).
Revolving Term Loan Percentage of
Lender Commitment Commitment Commitment
BBH&Co $ 7,500,000 $ 7,500,000 25.0%
FLEET $ 7,500,000 $ 7,500,000 25.0
CITIZENS $ 7,500,000 $ 7,500,000 25.0
BNH $ 7,500,000 $ 7,500,000 25.0
TOTAL $30,000,000 $30,000,000 100.00%
(b) Revolving Loans. Subject to the terms and conditions set
forth in this Credit Agreement, each Lender hereby agrees to fund its Percentage
of the Revolving Loan Commitment in favor of Borrowers in the individual
principal amount set forth above. Each Lender agrees to lend to Borrowers, and
Borrowers may borrow, repay, and reborrow from time to time from the Closing
Date up to but not including the Maturity Date, upon notice by the requesting
Borrower to the Agent given in accordance with ss.2.7, such sums as are
requested by such requesting Borrower up to a maximum aggregate principal amount
outstanding (after giving effect to all amounts requested) at any one time equal
to such Lender's Percentage of the Available Revolving Commitment; provided;
however, that the proceeds of any and all borrowings and reborrowings hereunder
shall be used solely for the purposes described in ss.5.16. All Revolving Credit
Loans shall be made as LIBOR Loans, EURIBOR Loans or Base Rate Loans, at the
requesting Borrower's option, subject to the provisions of this Credit Agreement
relative to LIBOR and EURIBOR Loans. Base Rate Loans may be converted to LIBOR
Loans or EURIBOR Loans; and LIBOR Loans and EURIBOR Loans may be continued or
converted to Base Rate Loans under the circumstances, and subject to the
conditions, specified in ss.2.8. Each request for a Revolving Credit Loan
hereunder shall constitute a representation and warranty by Borrowers that the
conditions set forth in ss.10 and ss.11, in the case of the initial Revolving
Credit Loans to be made on the Closing Date, and ss.11, in the case of all other
Revolving Credit Loans, have been satisfied on the date of such request.
<PAGE>
(c) The Term Loan. On the Closing Date each of the Lenders
shall severally lend to the Borrower such Lender's Percentage of the Term Loan
Commitment in accordance with a written borrowing request from the Borrower
pursuant to ss.2.7. Substantially all of the proceeds of the Term Loan
Commitment shall be used by the Borrower only in connection with the UroQuest
Transaction, although up to five (5%) percent of the proceeds may be used to pay
off existing revolving credit obligations of the Borrowers (the "Permitted Term
Loan Uses"). The Term Loan may consist of one or more LIBOR Loans, EURIBOR Loans
or Base Rate Loans, at Borrowers' option, but in the absence of an election by
Borrowers shall be Base Rate Loans. Base Rate Loans may be converted to LIBOR
Loans or EURIBOR Loans; and LIBOR Loans and EURIBOR Loans may be continued or
converted to Base Rate Loans under the circumstances, and subject to the
conditions, specified in ss.2.8. Each request for a LIBOR Loan or EURIBOR Loan
hereunder shall constitute a representation and warranty by Borrowers that the
conditions set forth in ss.10 and ss.11, in the case of the initial Loans to be
made on the Closing Date, and ss.11, in the case of all other Loans, have been
satisfied on the date of such request.
ss.2.2. Fees.
(a) Commitment Fee. The Borrowers agree to pay to the Agent
for the ratable account of each Lender, on each date that Borrower delivers to
the Agent a Compliance Certificate pursuant to ss.2.6(a) and, in the case of
extension pursuant to ss.2.4, on the Maturity Date, a commitment fee (the
"Commitment Fee") calculated at the applicable Commitment Commission (as
determined from the chart in ss.2.6) on the daily average unused portion of such
Lender's portion of the Available Revolving Commitment during the immediately
preceding fiscal quarter of Borrowers (adjusted as appropriate for any reduction
or termination of any portion of the Revolving Loan Commitment during the
immediately preceding fiscal quarter or portion thereof). The Commitment Fee
shall be computed on the basis of the actual number of days elapsed in a year of
360 days and shall be payable in arrears.
(b) Agent's Fees. The Borrowers agree to pay to the Agent, for
the Agent's own account, such other fees as Borrowers and the Agent have
heretofore agreed upon or may hereafter agree upon in writing.
<PAGE>
(c) Facility Fee. On the Closing Date, the Borrowers shall pay
to the Agent for the ratable account of each of the Lenders the Facility Fee.
ss.2.3. Reduction of Commitments. Subject to the terms and conditions of
ss.3, Borrowers shall have the right at any time and from time to time upon
three (3) Business Days' prior written notice to the Agent (which shall in turn
give prompt written notice to each Lender) to reduce by $1,000,000 or a multiple
of $1,000,000 in excess thereof or terminate entirely any portion of the
Revolving Loan Commitment, pro rata in accordance with each Lender's Percentage,
whereupon the Revolving Loan Commitment shall be reduced accordingly or, as the
case may be, terminated. Upon the effective date of any such reduction or
termination, the Borrowers shall pay to the Agent for the ratable account of
each Lender the full amount of any Commitment Fee payable pursuant to ss.2.2(a)
then accrued on the amount of the reduction. No reduction of the Revolving Loan
Commitment may be reinstated and no prepayment of the Term Loan may be
reinstated or reborrowed.
<PAGE>
ss.2.4. Revolving Credit Notes. The Revolving Credit Loans made by the
Lenders hereunder shall be evidenced by promissory notes of Borrowers in
substantially the form of Exhibit B-1 attached hereto (collectively, the
"Revolving Credit Note"), dated as of the Closing Date and completed with
appropriate insertions. The Revolving Credit Note shall be payable to the order
of each Lender in principal amounts equal to such Lender's Percentage of the
Revolving Loan Commitment, plus interest accrued thereon, as set forth below.
Borrowers irrevocably authorize the Lenders 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 or interest on the Revolving Credit Note,
an appropriate notation on its Record or elsewhere in accordance with the
Lenders' customary procedures reflecting the making of such Revolving Credit
Loan or (as the case may be) the receipt of such payment and the respective
pro-rata allocations to each Lender in accordance with its respective
Percentage. The Lenders shall record the outstanding amount of the Revolving
Credit Loans on the Record or elsewhere in accordance with the Lenders'
customary procedures as prima facie evidence of the principal amount thereof
owing and unpaid to the Lenders, but the failure to record, or any error in so
recording, any such amount on the Record or elsewhere in accordance with the
Lenders' customary procedures shall not limit or otherwise affect the
obligations of the Borrowers hereunder or under the Revolving Credit Note to
make payments of principal of or interest on the Revolving Credit Note when due.
The Revolving Credit Note shall be due and payable on the Maturity Date,
provided that the Maturity Date may, with the approval of all of the Lenders, be
extended annually thereafter for each of the next two (2) twelve-month periods
following the Maturity Date, as follows. If the Borrowers wish to extend the
Maturity Date for such one year periods, the Borrowers shall so notify the Agent
in writing at least one hundred twenty (120) days prior to the scheduled
Maturity Date (as such may have been previously extended). The Agent shall
promptly communicate such extension request in writing to each of the Lenders
who shall advise the Agent in writing no later than ninety (90) days from their
receipt of such notice from the Agent whether such Lender elects to agree to
such extension request. No Lender shall be deemed to have agreed to such
extension of the Maturity Date unless it has consented thereto in writing.
ss.2.5. Term Notes. The Term Loan shall be evidenced by promissory
notes in the form attached hereto as Exhibit B-2 (collectively, the "Term
Note"), payable to the order of each of the Lenders, dated as of the Closing
Date and in the aggregate principal amount of $30,000,000.
ss.2.6. Interest on Loans/Principal Repayment.
(a) Borrowers shall deliver to the Lenders on the Closing Date
and on or before the 45th day immediately following the end of each fiscal
quarter of Borrowers, or, as the case may be, ninety (90) days following the end
of each fiscal year, a Compliance Certificate as described in ss.6.2(f) setting
forth, among other covenant compliance calculations, the ratio of (i) the
Consolidated Senior Debt of Borrower and its Subsidiaries for the immediately
preceding fiscal quarter-end to (ii) Consolidated EBITDA and its Subsidiaries
for the four (4) consecutive quarters ending on such fiscal quarter-end (the
"Debt Coverage Ratio"). Loans shall bear interest at a rate per annum equal to
the LIBOR, EURIBOR or Base Rate, as the case may be, plus the applicable margin
set forth below based on the Debt Coverage Ratio (which margin is referred to,
in the case of Base Rate Loans, as the "Base Rate Margin" and, in the case of
LIBOR Loans or EURIBOR Loans, as the "LIBOR Margin" or "EURIBOR Margin"
respectively, as applicable). Subject to subparagraph (b) below, each change in
the applicable margin based on a change in the Debt Coverage Ratio shall be
effective, with respect to all Loans outstanding on or after the date of
delivery of a Compliance Certificate, from and including the date of delivery of
such certificate until the date immediately preceding the next date of delivery
of a Compliance Certificate indicating another such change. In the case of LIBOR
and EURIBOR Loans, the effective margin calculations shall be made as of such
effective date, with any payment adjustments to be made on the next Interest
Payment Date.
Debt Coverage Base Rate Margin LIBOR and EURIBOR Margin Commitment
Commission
1.5< 0 100 20
1.5 up to 2.0 0 112.5 25
2.0 up to 2.5 0 125.0 30
(b) During any period when an Event of Default shall have
occurred and be continuing or in the event that Borrowers fail to provide the
Agent with the Compliance Certificate for any fiscal quarter of Borrowers on the
due date thereof (which Event of Default or failure to provide a Compliance
Certificate is not waived or extended as provided herein), then until such Event
of Default is cured or waived or such certificate is provided, as the case may
be, the applicable margin over the Base Rate shall be 200 Basis Points and the
applicable margin over the LIBOR shall be 350 Basis Points and over the EURIBOR
shall be 350 Basis Points.
(c) Interest on each Base Rate Loan, LIBOR Loan and EURIBOR
Loan shall be computed on the basis of the actual number of days elapsed in a
year of 360 days, in each case without duplication of any day in successive
Interest Periods.
(d) The Borrowers agree to pay to the Agent, for the pro rata
benefit of the Lenders, interest on each Loan in arrears on each Interest
Payment Date with respect thereto. Any adjustments to interest payments based
upon the calculations provided in ss.2.6(a) shall be made on the Interest
Payment Date following the effective date of such adjustment.
<PAGE>
(e) The Borrowers agree to pay to the Agent, for the pro-rata
benefit of the Lenders, principal on the Revolving Loans on the Maturity Date,
and agree to pay to the Agent for the pro-rata benefit of the Lenders, principal
on the Term Loan in twenty consecutive quarterly payments, each in the amount of
one twentieth of the initial face amount of the Term Loan commencing with the
last business day of March 2000, with any remaining unpaid balance due on the
Maturity Date.
ss.2.7. Requests for Loans. All requests for Loan under this Credit
Agreement shall be made by the Borrower on behalf of the Borrowers or any of
them. 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 the Loans requested from the Lenders hereunder (a "Loan Request"), no
later than 12:00 noon, Boston time, (i) no less than one (1) Business Day prior
to the proposed Drawdown Date of any Base Rate Loan and (ii) no less than two
(2) LIBOR Business Days prior to the proposed Drawdown Date of any LIBOR Loans,
and no less than three (3) LIBOR Business Days prior to the proposed Drawdown
Date of any EURIBOR Loans. Each such notice shall be given and signed by the
Borrower as agent for the requesting Borrower and shall specify (i) the
aggregate principal amount of the Loans requested from the Lenders (and in any
event not in excess of the unused portion of the Available Revolving
Commitment), (ii) whether such Loans are to be LIBOR Loans, EURIBOR Loans or
Base Rate Loans, (iii) the proposed Drawdown Date of such Loans, (iv) in the
case of LIBOR Loans and EURIBOR Loans, the Interest Period for such Loans, (v)
the purpose or purposes to which the proceeds of such Loans shall be applied,
and (vi) such other matters as are set forth on Exhibit C. Each Loan Request
shall be in a minimum aggregate amount of $1,000,000 or a higher integral
multiple of $500,000. The Agent shall then promptly notify each Lender in
writing of its respective Percentage of the Loans requested by the end of the
Business Day of the Loan Request. The Agent and the Borrowers shall conclusively
be entitled to rely upon such Loan Request from the Borrower and shall have no
liability to any of the Borrowers for acting in accordance with any such Loan
Request. Each Lender shall make its respective Percentage of the Loans available
to the Agent for disbursement to the Borrowers as provided in ss.2.9.
ss.2.8. Conversion and Continuation.
The Borrower, as agent for the Borrowers, shall have the right at any
time upon prior irrevocable notice to the Agent (a) not later than 12:00 noon,
Boston time, one (1) Business Day prior to the date of conversion, to convert
any LIBOR Loan or EURIBOR Loan into a Base Rate Loan, (b) not later than 12:00
noon, Boston time, two (2) LIBOR Business Days prior to conversion or
continuation, to convert any Loan into a LIBOR Loan or to continue any LIBOR
Loan for an additional Interest Period, and (c) not later than 12:00 noon,
Boston time, three (3) LIBOR Business Days prior to conversion or continuation,
to convert any Loan into a EURIBOR Loan or to continue any EURIBOR Loan as a
EURIBOR Loan for an additional Interest Period, subject in each case to the
following:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Loans;
<PAGE>
(ii) if less than all the outstanding principal amount of any Loans
shall be converted or continued, then the resulting Loans shall satisfy the
limitations specified in the fourth to last sentence of ss.2.7 regarding the
principal amount of Loans;
(iii) each conversion shall be effected by the Agent by recording for
the account of each Lender the new Loan of such Lender resulting from such
conversion and reducing the Loan (or portion thereof) of such Lender being
converted by an equivalent principal amount;
(iv) accrued interest on a LIBOR Loan or EURIBOR Loan (or portion
thereof being converted or continued) shall be paid by the Borrowers at the time
of conversion or continuation;
(v) LIBOR Loans and EURIBOR Loans may only be converted at a time that
is the end of the Interest Period applicable thereto;
(vi) any portion of a Loan maturing or required to be repaid in less
than one month may not be converted into or continued as a LIBOR Loan or EURIBOR
Loan;
(vii) any portion of a LIBOR Loan or EURIBOR Loan that cannot be
converted into or continued as a LIBOR Loan or EURIBOR Loan (as applicable) by
reason of the immediately preceding clause shall be automatically converted at
the end of the Interest Period in effect for such Loan into a Base Rate Loan;
and
(viii) no Event of Default and no event which, with the giving of
notice or passage of time or both, would constitute an Event of Default has
occurred and is continuing; provided, however, that the condition set forth in
this clause (viii) shall not be applicable to the conversion of any LIBOR Loan
or EURIBOR Loan into a Base Rate Loan pursuant to ss.2.8.
Each notice pursuant to this ss.2.8 shall be irrevocable and shall
refer to this Credit Agreement and specify (i) the identity (i.e. whether the
election is for the Term Loan or the Revolving Loans) and amount of the Loan
that such Borrower requests be converted or continued, (ii) whether such Loan is
to be converted to or continued as a LIBOR Loan, EURIBOR Loan or a Base Rate
Loan, (iii) if such notice requests a conversion, the date of such conversion
(which shall be a LIBOR Business Day) and (iv) if such Loan is to be converted
to or continued as a LIBOR Loan or EURIBOR Loan, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a LIBOR Loan or EURIBOR Loan,
the requesting Borrower shall be deemed to have selected an Interest Period of
one month's duration. The Agent shall promptly advise the other Lenders of any
notice given pursuant to this ss.2.8 and of each Lender's portion of any
converted or continued Loans. If the requesting Borrower shall not have given
notice in accordance with this ss.2.8 to continue any LIBOR Loans or EURIBOR
Loans (as applicable) into a subsequent Interest Period (and shall not otherwise
have given notice in accordance with this ss.2.8 to convert such LIBOR Loans or
EURIBOR Loans), such LIBOR Loans and/or EURIBOR Loans shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically renew as a LIBOR or EURIBOR Loan for an Interest Period of 30
days. In no event shall the Interest Period of any Loan extend beyond any
Maturity Date.
ss.2.9. Funds for Loans. Subject to the satisfaction of the other
conditions set forth herein, to the extent applicable (including the conditions
set forth in ss.2.7), each Lender will make available to the Agent on the
proposed date of any Loan by wire transfer of immediately available funds not
later than 1:00 P.M., Boston time, the aggregate amount of its Percentage of
such Loans requested by Borrower, and the Agent shall credit the aggregate
amount so received to the respective accounts designated by the requesting
Borrower or, if such Borrower does not designate any account, to such Borrower's
regular deposit account with the Agent, if any. The Lenders shall make such
funds available to the Agent in U.S. Dollars unless the requesting Borrower has
requested that any Loan be funded in EUROs , in which case the Lenders shall
make such funds available to the Agent in EUROs, or as otherwise agreed between
the Agent and any Lender. In no event shall the aggregate of all dollar
denominated Loans plus all EURO denominated loans made to Borrowers exceed the
respective dollar denominated Revolving Commitment and Term Loan Commitment
amounts set forth in ss.2.1(a).
ss.3. PREPAYMENT OF THE LOANS, RESERVES.
ss.3.1. Voluntary Prepayments. Borrowers shall have the right, at their
election, to prepay the outstanding amount of any Loans, as a whole or in part,
at any time without penalty or premium, except as provided in ss.4.8. Each
partial prepayment of the Term Loan shall be applied by the Lenders to the Term
Loan in the inverse order of maturity of payments due under the Term Loan.
Borrowers shall give irrevocable written notice to the Agent, no later than
12:00 noon, Boston time, one Business Day prior to any proposed prepayment of
Base Rate Loans pursuant to this ss.3 and no later than 11:00 a.m., Boston time,
and two (2) LIBOR Business Days or three (3) LIBOR Business Days, prior to any
proposed prepayment of LIBOR Loans or EURIBOR Loans, respectively, pursuant to
this ss.3, in each case specifying the proposed date of prepayment of the Loans
and the principal amount and accrued interest to be prepaid, and the Agent shall
promptly give notice thereof to each Lender. Each such prepayment of the Base
Rate Loans shall be in a minimum amount of the lesser of (i) $1,000,000, or the
equivalent amount of EUROs in the case of EURO denominated Loans and (ii) the
aggregate amount outstanding under the Notes being prepaid, and shall be
accompanied by the payment of accrued interest on the principal prepaid to the
date of such prepayment.
ss.3.2. Mandatory Prepayments. If at any time the outstanding principal
amount of all Revolving Loans exceeds (or, in the case of any notice of
reduction of the Revolving Loan Commitment pursuant to ss.2.3, would exceed) the
Revolving Loan Commitment, the Borrowers will immediately prepay the applicable
Note or Notes, subject to ss.4.8, in an amount necessary to cause the
outstanding principal amount of all Loans not to exceed the Revolving Loan
Commitment.
ss.4. CERTAIN GENERAL PROVISIONS.
ss.4.1. Funds for Payments.
(a) All payments of principal, interest, fees and any other
amounts due hereunder or under any of the other Loan Documents shall be made to
the Agent for the ratable account of the Lenders at 40 Water Street, Boston,
Massachusetts 02109, or at such other location as the Agent may from time to
time designate. All payments on all U.S. Dollar denominated Loans shall be made
in Dollars constituting immediately available funds and all payments on EURO
denominated Loans shall be made in EUROs constituting immediately available
funds .
(b) All payments by the Borrowers hereunder and under any of the
other Loan Documents shall be made to the Agent without setoff or counterclaim
and free and clear of and without deduction for any taxes, levies, imports,
duties, charges, fees, deductions, withholdings, compulsory loans, restrictions
or conditions of any nature now imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority therein unless any
such Borrower is compelled by law to make such deduction or withholding or if
the taxes are based upon or measured by the income or profits of the Lenders,
including profits or receipts with respect to the Loans. If any such obligation
is imposed upon any Borrower with respect to any amount payable by it hereunder
or under any of the other Loan Documents, the Borrowers will pay to the Agent
for the ratable account of the Lenders 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 Lenders to receive the same net
amount which the Lenders would have received on such due date had no such
obligation been imposed upon Borrowers. The Borrowers 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 Borrowers hereunder
or under such other Loan Document. In the event any Lender receives a refund of
any taxes or other amounts for which it has received payment from Borrowers
pursuant to this ss.4. 1 (b), such Lender shall, within 30 days from the date of
such receipt, pay the amount of such refund to Borrowers but only to the extent
of payments made by Borrowers pursuant to this ss.4.1(b) and net of all costs
and expenses of the Agent and such Lender relating thereto and without interest
(other than interest, if any, paid by the relevant government authority with
respect to such refund); provided, however, that the Borrowers upon request of
the Agent or any Lender, agree to repay the amount paid to Borrowers to the
Agent or such Lender if the Agent or such Lender is required to repay such
refund to such governmental authority. The Agent shall pay to the Lenders their
pro-rata shares of all payments received by the Agent prior to Noon Boston time
by the end of such Business Day, and shall pay to the Lenders their pro-rata
shares of all payments received by the Agent after Noon, Boston time, by no
later than the end of the following Business Day. Any such payments from the
Borrowers received by the Agent and distributed by the Agent to the Lenders
shall be subject to immediate repayment by the Lenders to the Agent to the
extent that such payment: (i) is dishonored or otherwise not finally collected,
or (ii) must be returned, disgorged, or paid to any court or representative of
the Borrowers in any judicial or bankruptcy or similar proceeding by the Agent.
ss.4.2. Computations. All computations of interest on the LIBOR Loans,
EURIBOR Loans and Base Rate Loans and of commitment or other fees shall 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 LIBOR Loans and EURIBOR 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.
ss.4.3. Inability to Determine LIBOR or EURIBOR. In the event, prior to
the commencement of any Interest Period relating to any LIBOR Loan or any
EURIBOR Loan, the Agent shall determine that adequate and reasonable methods do
not exist in the marketplace for ascertaining the LIBOR or EURIBOR that would
otherwise determine the rate of interest to be applicable to any LIBOR Loan or
EURIBOR Loan during any Interest Period, the Agent shall give notice of such
determination (which shall be conclusive and binding on Borrowers) to the
Borrowers. In such event (a) any Loan Request with respect to LIBOR Loans and/or
EURIBOR Loans shall be automatically withdrawn and shall be deemed a request for
Base Rate Loans, (b) each LIBOR Loan and each EURIBOR Loan will automatically,
on the last day of the then current Interest Period thereof, become a Base Rate
Loan, and (c) the obligations of the Lenders to make LIBOR Loans or EURIBOR
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.
ss.4.4. Illegality. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or change in the
interpretation or application thereof shall make it unlawful for any Lender (the
"Non-LIBOR Lender(s)") to make or maintain LIBOR Loans or EURIBOR Loans, such
Lender shall forthwith give notice of such circumstances to the Agent who shall
in turn notify the Borrower and thereupon (a) the commitment of such Lender to
make LIBOR Loans and/or EURIBOR Loans shall forthwith be suspended and (b) the
Loans then outstanding as LIBOR Loans and EURIBOR Loans from such Lender, if
any, shall be converted automatically to Base Rate Loans on the last day of each
Interest Period applicable to such LIBOR Loans or EURIBOR Loans (as
applicable)or within such earlier period as may be required by law. The
Borrowers hereby agree promptly to pay the Agent on behalf of such Lender, upon
demand by such Lender accompanied by a certificate setting forth in reasonable
detail such costs, any additional amounts necessary to compensate such Lender
for any costs incurred by such Lender in making any conversion in accordance
with this ss.4.4, including any Breakage Costs and other interest or fees
payable by such Lender to lenders of funds obtained by it in order to make or
maintain its LIBOR Loans and/or EURIBOR Loans hereunder; provided, that to the
extent permitted by applicable law, each Lender shall maintain each LIBOR Loan
and EURIBOR Loan until the last day of an Interest Period. The foregoing
assessment of Breakage Costs to the Borrower with respect to the Loan(s) from
the Non-LIBOR Lender(s) shall not apply if LIBOR or EURIBOR Loans are generally
available from other bank financing sources other than the Non-LIBOR Lender(s)
at the time that the Agent notifies the Borrower of the unavailability of LIBOR
or EURIBOR Loans from the Non-LIBOR Lender(s), and, in such instance, the
Borrower may convert the Non-LIBOR Lender's LIBOR or EURIBOR Loan(s) to a Base
Rate Loan without premium or penalty. In such instance the Non-LIBOR Lender(s)
shall make its/their Loan(s) to the Borrower at the Base Rate equivalent of the
LIBOR or EURIBOR Loans then being provided to the Borrower by the other Lenders.
ss.4.5. Additional Costs, Etc. If any change in any present applicable
law, or if any future applicable law, (which expression, as used herein,
includes (i) statutes, rules and regulations thereunder and interpretations
thereof by any court or by any governmental or other regulatory body charged
with the administration or the interpretation thereof, and (ii) directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Lender by any central bank or other fiscal, monetary or
other authority), shall:
(a) subject such Lender to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this Credit
Agreement, the other Loan Documents, or the Loans (other than taxes based upon
or measured by the income or profits of such Lender, including without
limitation profits or receipts with respect to the Loans and other than any
withholding tax imposed on any payments by the Borrowers to such Lender); or
(b) materially change the basis of taxation (except for
changes in taxes on income or profits and except for any withholding tax imposed
on any payments by the Borrowers to the Lenders) of payments to such Lender of
the principal of or the interest on any Loans or any other amounts payable to
such Lender under this Credit Agreement or the other Loan Documents; or
<PAGE>
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law, but only if it is
mandatory that such Lender comply) against assets held by, or deposits in or for
the account of, or loans by, or commitments of an office of such Lender; or
(d) impose on such Lender any other conditions or requirements
with respect to this Credit Agreement, the other Loan Documents, the Loans, or
any class of loans or commitments of which any of the Loans forms a part;
and the result of any of the foregoing is to:
(i) increase the cost to such Lender of making, funding,
issuing or maintaining of the Loans or its Percentage of the Total Commitment;
or
(ii) reduce the amount of principal, interest or other amount
payable to such Lender hereunder on account of any of the Loans or its
Percentage of the Total Commitment; or
(iii) require such Lender to make any payment or to forego any
interest or other sum payable hereunder, the amount of which payment or foregone
interest or other sum is calculated by reference to the gross amount of any sum
receivable or deemed received by such Lender from the Borrowers hereunder;
then, and in each such case, the Borrowers will immediately following receipt of
written notice from the Agent on behalf of such Lender, which written notice
shall include a description of the relevant change in law, calculations of the
amounts payable, pay to the Agent on behalf of such Lender such additional
amounts as will be sufficient to compensate such Lender for such additional
cost, reduction, payment or foregone interest or other sum.
ss.4.6. Capital Adequacy. If any change in any present law,
governmental rule, regulation, policy, guideline or directive or if any future
law, governmental rule, regulation, policy, guideline or directive (in each case
whether or not having the force of law, but only if it is mandatory that the
Lender comply) or the interpretation thereof by a court or governmental
authority with appropriate jurisdiction or any change in any such law or
interpretation (including, without limitation, any change according to a
prescribed schedule of increasing requirements, whether or not known on the date
of this Credit Agreement) affects the amount of capital required or expected to
be maintained by any Lender or any corporation controlling such Lender and such
Lender determines that the amount of capital required to be maintained by it is
increased by or based upon the existence of the Commitments or Loans made
pursuant hereto, then the Agent on behalf of such Lender may notify the Borrower
of such fact. To the extent that the costs of such increased capital
requirements are not reflected in the applicable rate(s) of interest on the
Loans, the Borrower and the Agent on behalf of such Lender shall thereafter
attempt to negotiate in good faith, within sixty (60) days of the day on which
the Borrower receives such notice, an adjustment payable hereunder that will
adequately compensate such Lender in light of these circumstances. If the
Borrower and the Agent on behalf of such Lender are unable to agree to such
adjustment within sixty (60) days of the date on which the Borrower receives
such notice, then commencing on the date Borrower received such notice (but not
earlier than the effective date of any such increased capital requirement), from
time to time the Borrowers will pay to the Agent, on behalf of such Lender after
consultation with the affected Lender, such additional amount that will, in the
Agent's reasonable determination, provide adequate compensation to such Lender.
Such Lender shall allocate such cost increases among its customers in good faith
and on an equitable basis.
ss.4.7. Certificate. A certificate setting forth any additional amounts
payable pursuant to ss.4.5, ss.4.6 or ss.4.8 and a reasonably detailed
explanation of such amounts which are due, including calculation of such
amounts, submitted by the Agent on behalf of any Lender to the Borrower, shall
be conclusive, absent manifest error, that such amounts are due and owing.
ss.4.8. Indemnity. The Borrowers agree to indemnify each Lender and to
hold each Lender harmless from and against any loss, cost or expense, including
any Breakage Costs and other such losses or expenses arising from interest or
fees paid or to be paid by such Lender to lenders of funds obtained by it in
order to maintain its Loans, that such Lender may sustain or incur resulting
from: (a) a default by any Borrower in payment of the principal amount of or any
interest on any Loans as and when due and payable, (b) a default by any Borrower
in making a borrowing after such Borrower has given (or is deemed to have given)
a Loan Request relating thereto in accordance with ss.2.7 or (c) the making of
any payment or prepayment of a Loan or the conversion of any LIBOR Loan or
EURIBOR 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 Lender to lenders of funds obtained by it in order to maintain
any such Loans.
ss.4.9. Interest on 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 payable on demand at a rate per annum equal to (i) in the case of
overdue principal and interest (to the extent permitted by law) of any Loan, the
rate calculated as provided in ss.2.6(b) or (ii) in the case of any other
amount, 200 Basis Points plus the then prevailing Base Rate, in each case until
such amount shall be paid in full (after as well as before judgment).
ss.4.10. Joint and Several Obligations. Notwithstanding any
other provision of this Credit Agreement, (i) each of the covenants, agreements
and obligations of Borrowers set forth in this Credit Agreement or in any other
Loan Document shall be the joint and several covenants, agreements and
obligations of the Borrowers and any other guarantor, co-borrower, endorser or
other surety, regardless of whether any such Borrower was the actual recipient
of the proceeds of a Loan, (ii) all representations and warranties of Borrowers
contained in this Credit Agreement or in any other Loan Document shall be deemed
to be separately made by each Borrower and (iii) any notice, request, consent,
report or other information or agreement delivered by any Borrower shall be
deemed for all purposes to be consented to, ratified and delivered by Borrowers.
In furtherance of the foregoing, Borrowers acknowledge and agree that each
covenant, agreement and obligation of Borrowers in this Credit Agreement or any
other Loan Document is the joint and several obligation of Borrowers.
Notwithstanding the foregoing, the liability of each of the Several Borrowers to
the Lenders shall be limited to the sum of: (a) the obligations of such Several
Borrower to the Lenders for Loans and other advances of credit made by the
Lenders directly or indirectly to such Several Borrower, plus (b) the
obligations of any other Borrower(s) to the Lenders to repay the principal,
interest and costs of borrowed funds (the "Indirect Liability"), to the extent,
but only to the extent that such other Borrower(s) has made loans, advances of
credit or other contributions of cash or property, directly or indirectly to
such Several Borrower. Notwithstanding any contrary provisions of ss.7.1-7.17,
all loans and investments of any kind made by one Borrower to or in any other
Borrower (including without limitation to or in any Several Borrower) from and
after the date of this Credit Agreement shall be deemed to derive, to the
maximum extent possible, from the Lenders' Loans to the lending Borrower, and
shall be the direct liability of the Borrower receiving such funds to the
Lenders.
ss.5. REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders to
enter into this Credit Agreement and to make the Loans provided for hereunder,
Borrowers make the following representations and warranties, which shall survive
the execution and delivery hereof and of the Notes:
ss.5.1 Organization, Standing, etc. of the Borrowers. Each Borrower is
a corporation duly organized, validly existing and, to the extent relevant in
the jurisdiction of its incorporation, in good standing under the laws of the
jurisdiction of its incorporation and has all requisite corporate power and
authority to own and operate its properties, to carry on its business as now
conducted and proposed to be conducted, to enter into this Credit Agreement, the
other Loan Documents and all other documents to be executed by it in connection
with the transactions contemplated hereby, to issue the Notes and to carry out
the terms hereof and thereof. Each of this Credit Agreement and the other Loan
Documents is the joint and several legal, valid and binding obligation of
Borrowers enforceable against each Borrower in accordance with its terms. The
exact names of the Borrowers are as set forth in Exhibit A.
ss.5.2 Subsidiaries. Schedule 5.2 attached hereto correctly sets forth
as to each Subsidiary, its name, the jurisdiction of its incorporation, the
number of shares of its capital stock of each class outstanding and the number
of such outstanding shares owned by Borrower and its other Subsidiaries. Each
such Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has all
requisite corporate power and authority to own and operate its properties and to
carry on its business as now conducted and proposed to be conducted. All of the
outstanding capital stock of each Subsidiary is validly issued, fully-paid and
nonassessable, and is owned by Borrower or by Borrower's Subsidiaries as
specified in Schedule 5.2, in each case free of any mortgage, pledge, lien,
security interest, charge, option or other encumbrance, other than restrictions
imposed by applicable federal and state securities laws.
ss.5.3 Qualification. Each Borrower and its Subsidiaries are duly
qualified or licensed and in good standing as foreign corporations duly
authorized to do business in each jurisdiction in which the character of the
properties owned or the nature of the activities conducted makes such
qualification or licensing necessary.
ss.5.4 Financial Information; Disclosure, etc. The Borrowers have
furnished the Lenders with the financial statements and other reports listed in
Schedule 5.4 attached hereto. Such financial statements have been prepared in
accordance with GAAP applied on a consistent basis and fairly present the
financial position and results of operations of the Persons to which they
purport to relate as of the dates and for the periods indicated. Since the end
of the most recent fiscal period shown in such financial statements or in the
most recent financial statements delivered by Borrowers under ss.6.2(a), there
has not been any Material Adverse Change in the business, operations, condition
(financial or otherwise) or properties of any Borrower or any of their
respective Subsidiaries, taken as a whole. Neither this Credit Agreement nor any
financial statements, reports, projections or documents or certificates
furnished to the Lenders by Borrowers in connection with the transactions
contemplated hereby contain as of their respective dates any untrue statement of
a material fact or omit to state any material fact necessary to make the
statements herein or therein contained not misleading. None of the Loans will
render any Borrower unable to pay its debts as they become due; no Borrower is
contemplating either the filing of a petition by it under any state or federal
bankruptcy or insolvency laws or the liquidation of all or a major portion of
its property; and no Borrower has knowledge of any Person contemplating the
filing of any such petition against it.
ss.5.5 Licenses, etc. Schedule 5.5 attached hereto accurately and
completely lists all material authorizations, licenses, permits and franchises
of any public or governmental regulatory body which are necessary for the
conduct of the business of Borrowers and their Subsidiaries as now conducted and
the absence of which would result, either in any case or in the aggregate, in a
Material Adverse Change in the business, operations, affairs, condition
(financial or otherwise) or properties of Borrowers, taken as a whole (such
authorizations, licenses, permits and franchises, together with any extensions
or renewals thereof, being herein sometimes referred to collectively as the
"Licenses"). All of such Licenses are in full force and effect and Borrowers and
their Subsidiaries have fulfilled and performed all of their obligations with
respect thereto and have full power and authority to operate thereunder.
ss.5.6 Material Agreements. Schedule 5.6 attached hereto accurately and
completely lists all material agreements and contracts which are presently in
effect in connection with the conduct of the businesses of Borrowers and which
were or are required to be filed with the Securities and Exchange Commission as
a "material contract" pursuant to Item 601(b)(10) of Registration S-K
promulgated by the Securities and Exchange Commission.
ss.5.7 Tax Returns and Payments. Each Borrower and its Subsidiaries
have filed all tax returns required by law to be filed and have paid all
material taxes, assessments and other governmental charges levied upon any of
their respective properties, assets, income or franchises, other than those not
yet delinquent and those, not material in aggregate amount, being or about to be
contested as provided in ss.6.7. The charges, accruals and reserves on the books
of each Borrower and its Subsidiaries in respect of their respective taxes are
adequate in the opinion of the Borrowers, and Borrowers know of no unpaid
assessment for additional taxes or of any basis therefor.
ss.5.8 Indebtedness, Liens and Investments, etc. Schedule 5.8 attached
hereto sets forth, as of the date hereof, (a) the amounts of all outstanding
Indebtedness of Borrowers and their Subsidiaries in respect of borrowed money,
Capitalized Leases and the deferred purchase price of property (b) all existing
mortgages, liens and security interests in respect of such Indebtedness, (c) all
agreements which directly or indirectly require any Borrower or its Subsidiaries
to make any material investments, loans or advances and (d) all existing
material guarantees by any Borrower and its Subsidiaries.
ss.5.9 Title to Properties, Liens. Each Borrower and its Subsidiaries
have good and marketable title to all of their respective properties and assets,
and none of such properties or assets is subject to any mortgage, pledge, lien,
security interest, charge or encumbrance except for (i) Permitted Liens and (ii)
minor liens and encumbrances which in the aggregate are not substantial in
amount, do not in any case materially detract from the value of the property
subject thereto or materially impair the operations of any Borrower or any
Subsidiaries and have not arisen otherwise than in the ordinary course of
business. Each Borrower and its Subsidiaries enjoy quiet possession under all
leases to which they are parties as lessees, and, to the knowledge of Borrowers,
all of such leases are valid, subsisting and in full force and effect. None of
such leases contains any provision restricting the incurrence of indebtedness by
the lessee.
ss.5.10 Litigation, etc. Except as set forth in Schedule 5.10 attached
hereto, there is no action, proceeding or investigation pending or threatened
(or any basis therefor known to Borrowers) which questions the validity of this
Credit Agreement, the Notes or the other documents executed in connection
herewith, or any action taken or to be taken pursuant hereto, or which could
reasonably be expected to result, either in any case or in the aggregate, in any
Material Adverse Change in the business, operations, affairs, condition
(financial or otherwise) or properties of any Borrower or any of their
respective properties or any material liability on the part of any Borrower.
ss.5.11 Authorization, Compliance with Other Instruments. The
execution, delivery and performance of this Credit Agreement and the Notes have
been duly authorized by all necessary corporate action on the part of each
Borrower, will not result in any violation of or be in conflict with or
constitute a default under any term of the charter or by-laws of any Borrower,
or of any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to any Borrower, or result in the creation of
any mortgage, lien, charge or encumbrance upon any of the properties or assets
of any Borrower pursuant to any such term. Neither Borrower nor any Subsidiary
is in violation of any term of its charter or by-laws, or of any term of any
material agreement or instrument to which it is a party, or, to any Borrower's
knowledge, of any judgment, decree, order, statute, rule or governmental
regulation applicable to it.
ss.5.12 Governmental Consent. Except as specified in Schedule 5.12
attached hereto, no order, consent, approval or authorization of, or declaration
to or filing with, any governmental Authority (collectively, "Consents") is
required to be obtained or made by any Borrower or by any Subsidiary in
connection with the execution and delivery of this Credit Agreement and the
issuance and delivery of the Notes pursuant hereto. Except as set forth in
Schedule 5.12, all of the consents have been obtained and are in full force and
effect.
ss.5.13 Regulation U, etc. No Borrower and no Subsidiary owns or has
any present intention of acquiring any "margin stock" within the meaning of
Regulation U (CFR 221) of the Board of Governors of the Federal Reserve System
(herein called "margin stock"). None of the proceeds of the Loans will be used,
directly or indirectly, by any Borrower or any Subsidiary for the purpose of
purchasing or carrying, or for the purpose of reducing or retiring any
indebtedness which was originally incurred to purchase or carry, any margin
stock or for any other purpose which might constitute the transactions
contemplated hereby a "purpose credit" within the meaning of said Regulation U,
or cause this Credit Agreement to violate Regulation U, Regulation T, Regulation
X, or any other regulation of the Board of Governors of the Federal Reserve
System or the Securities Exchange Act of 1934.
ss.5.14 Employee Retirement Income Security Act of 1974. Each Employee
Benefit Plan and to Borrowers' knowledge, each Multiemployer Plan, is in
material compliance with applicable provisions of ERISA and the Code. No ERISA
Reportable Event has occurred or, to Borrowers' knowledge, is imminent or likely
to occur. No Borrower and no ERISA Affiliate has incurred any material liability
to the PBGC or any Employee Benefit Plan or Multiemployer Plan on account of any
failure to meet the contribution requirements of any such plan, minimum funding
requirements or prohibited transactions under ERISA or the Code, termination of
a single employer plan, partial or complete withdrawal from a Multiemployer
Plan, or the insolvency, reorganization or termination of any Multiemployer
Plan, and no event has occurred or conditions exist which present a material
risk that any Borrower or any ERISA Affiliate will incur any material liability
on account of any of the foregoing circumstances. The consummation of the
transactions contemplated by this Credit Agreement will not result in any
prohibited transaction under ERISA or the Code for which an exemption is not
available.
ss.5.15 Environmental Matters. Except as set forth in Schedule 5.15
attached hereto, no Borrower and no Subsidiary nor, to Borrowers' knowledge, any
other Person has ever caused or permitted any Hazardous Material to be disposed
of on or under any real property owned, leased or operated by any Borrower or
any Subsidiary or in which any Borrower or any Subsidiary has ever held,
directly or indirectly, any legal or beneficial interest or estate, and no such
real property has ever been used (either by any Borrower or any Subsidiary or,
to Borrowers' knowledge, by any other Person) as (i) a disposal site or
permanent storage site for any Hazardous Material or (ii) a temporary storage
site for any Hazardous Material. Each Borrower and each of its Subsidiaries have
been issued and are in compliance with all material permits, certificates,
licenses, approvals and other authorizations relating to environmental matters
and necessary or desirable for their respective businesses, and have filed all
notifications and reports relating to chemical substances, air emissions,
underground storage tanks, effluent discharges and Hazardous Material waste
storage, treatment and disposal required in connection with the operation of
their respective businesses, the failure to have or comply with which would,
individually or in the aggregate, have a material adverse effect on any Borrower
or any Subsidiary. All Hazardous Materials used or generated by each Borrower
and each Subsidiary and each business merged into or otherwise acquired by any
Borrower or any Subsidiary have been generated, accumulated, stored,
transported, treated, recycled and disposed of in compliance with all applicable
laws and regulations, the violation of which has any reasonable likelihood of
having a material adverse effect on any Borrower or any Subsidiary. Neither
Borrower nor any Subsidiary has any liabilities with respect to Hazardous
Materials and no facts or circumstances exist which could give rise to
liabilities with, respect to Hazardous Materials, which in either case,
individually or in the aggregate, could have reasonable likelihood of having a
material adverse effect on Borrower or any Subsidiary.
ss.5.16 Use of Proceeds. Borrowers will use the proceeds of the
Revolving Loans solely for working capital, future business acquisitions
permitted under this Credit Agreement, Authorized Share Repurchases and other
general corporate purposes of the Borrowers, and Borrower shall use the proceeds
of the Term Loan only in connection with the UroQuest Transaction and the
Permitted Term Loan Uses.
ss.5.17 Investment Company Act, Public Utility Holding Company Act.
No Borrower and no Subsidiary is (a) an "investment company" as defined in,
or subject to regulation under, the Investment Company Act of 1940 or
(b) a "holding company" as defined in or subject to regulation under, the
Public Utility Holding Company Act of 1935.
ss.5.18 Disclosures. Neither this Credit Agreement nor any other Loan
Document contains any untrue statement of material fact or fails to state a
material fact necessary in order to make the statements contained herein or
therein not misleading in light of the circumstances under which they were made.
No fact is known to the Borrowers or the Subsidiaries which has resulted or may
(to the extent foreseeable) result in any Material Adverse Change to the
business or prospects of any of the Borrowers or any of the Subsidiaries, except
to the extent that future general economic conditions may result in a Material
Adverse Change.
ss.5.19 Year 2000. No material modifications are required to any of the
Borrowers' computer systems or computer software to assure that such systems and
software contain no deficiencies relating to formatting for entering dates
(commonly referred to and referred herein as the "Year 2000 Problem"). The
material components of Borrowers' computer systems and software are susceptible
to all necessary modification and the Borrowers believe that they have adequate
personnel or consultants under contract to timely modify (or, as applicable,
replace and/or upgrade) their own computer systems and software. The Borrowers
are not aware of any inability on the part of any of its customers, insurance
providers or vendors to timely address the Year 2000 Problem that will in any
manner materially adversely affect Borrowers' respective business operations.
ss.6. AFFIRMATIVE COVENANTS OF THE BORROWERS. Borrowers covenant and
agree that, so long as any Loan or Note is outstanding or the Lenders have any
Available Revolving Commitment:
ss.6.1 Records and Accounts. Each Borrower will (a) keep true and
accurate records and books of account in which full, true and correct entries
will be made in accordance with GAAP and (b) maintain adequate accounts and
reserves for all taxes (including income taxes), depreciation, depletion,
obsolescence and amortization of its properties, contingencies, and other
reserves, all in accordance with GAAP.
ss.6.2 Financial Statements, Certificates and Information. Borrower
will furnish or cause to be furnished to each Lender:
(a) Within 90 days after the end of each fiscal year of Borrowers: (i)
the consolidated and consolidating balance sheets of Borrowers and their
Subsidiaries as at the end of such year and (ii) the related consolidated and
consolidating statements of income and surplus and cash flow for such year,
setting forth in comparative form with respect to such consolidated financial
statements figures for the previous fiscal year, all in reasonable detail,
together with the opinion thereon of independent public accountants selected by
and satisfactory to the Lenders, which opinion shall be in a form generally
recognized as unqualified and shall state that the financial statements have
been prepared in accordance with generally accepted accounting principles
applied on a basis consistent with that of the preceding fiscal year (except for
changes, if any, which shall be specified and approved in such opinion) and that
the audit by such accountants in connection with such financial statements has
been made in accordance with generally accepted auditing standards related to
reporting.
(b) Within 45 days after the end of each quarterly accounting period in
each fiscal year of Borrowers (including the final quarterly period): (i) the
unaudited consolidated and consolidating balance sheets of Borrowers and their
Subsidiaries as at the end of such period, and (ii) the related unaudited
consolidated and consolidating statements of income and surplus and cash flows
for such period and for the period from the beginning of the current fiscal year
to the end of such period, all in reasonable detail and signed by the chief
financial officer or treasurer of Borrower.
(c) Together with the financial statements delivered pursuant to
subparagraph (a) above, a statement signed by the accountants who have reported
on the same to the effect that in connection with their examination of such
financial statements they have reviewed the provisions of this Credit Agreement
and have no knowledge of any event or condition which constitutes an Event of
Default or which, after notice or expiration of any applicable grace period or
both, would constitute such an Event of Default or, if they have such knowledge,
specifying the nature and period of existence thereof; provided, however, that
in issuing such statement, such independent accountants shall not be required to
go beyond normal auditing procedures conducted in connection with their opinion
referred to above;
(d) At least thirty (30) days prior to the beginning of each fiscal
year, Borrowers' Projections for the next succeeding fiscal year on a quarter by
quarter basis, and for the following two (2) fiscal years on a year by year
basis;
(e) Together with the financial statements delivered pursuant to
subparagraphs (a) and (b) above, a Compliance Certificate substantially in the
form of Exhibit D attached hereto signed by the chief financial officer or
treasurer of Borrower;
(f) Promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by with
the Securities and Exchange Commission, or any governmental authority succeeding
to any of or all of the functions of said Commission, or with any national
securities exchange, or distributed to its shareholders generally, as the case
may be (with the exhibits relating thereto to be provided, at Borrowers'
expense, upon the request of the Agent or any Lender);
(g) Promptly upon their becoming available, copies of any periodic or
special reports filed by any Borrower or any Subsidiary with any federal, state
or local governmental agency or authority, if such reports indicate any material
change in the business, operations, affairs or condition (financial or
otherwise) of Borrowers and Subsidiaries, taken as a whole, or if copes thereof
are requested by any Lender, and copies of any materially adverse notices and
communications from any federal, state or local governmental agency or authority
which specifically relate to any Borrower or any Subsidiary;
(h) Immediately upon any officer of any Borrower obtaining knowledge of
any condition or event which constitutes an Event of Default or which, after
notice or lapse of time or both, would constitute an Event of Default, a
certificate signed by such officer specifying in reasonable detail the nature
and period of existence thereof and what action Borrowers have taken or propose
to take with respect thereto;
(i) Promptly upon any officer of any Borrower obtaining knowledge of any
litigation, arbitration or administrative or quasi-judicial action, seeking
damages in excess of $250,000 or injunctive, declaratory or other non-monetary
remedies, brought or threatened to be brought against the Borrower or any of its
Subsidiaries, a certificate signed by such officer specifying in reasonable
detail the nature thereof and what action Borrowers have taken or propose to
take with respect thereto, the amount of judgment sought together with (if
requested by the Agent) copies of any pleadings filed or to be filed in such
proceeding; and
(j) Such other information regarding the business, affairs and condition
of Borrowers and their respective Subsidiaries as any Lender may from time to
time reasonably request. Borrowers will permit each Lender to inspect the books
and any of the properties or assets of Borrowers and their Subsidiaries at such
reasonable times as such Lender may from time to time request.
ss.6.3 Legal Existence; Compliance with Laws, etc. Each Borrower will,
and will cause each Subsidiary to: maintain its corporate existence and
business; maintain all properties which are reasonably necessary for the conduct
of such business, now or hereafter owned, in good repair, working order and
condition; take all actions necessary to maintain and keep in full force and
effect its Licenses; to the extent applicable, take all steps necessary to
maintain its status as a public company and to maintain its status as a company
listed on the New York Stock Exchange or a national stock exchange; and, except
as otherwise provided herein, comply with all applicable statutes, rules,
regulations and orders of, and all applicable restrictions imposed by, all
governmental authorities in respect of the conduct of its business and the
ownership of its properties; in each case except to the extent that the failure
to comply would not, individually or in the aggregate, have a material adverse
effect on the business, operations, affairs or condition (financial or
otherwise) of any Borrower or its Subsidiaries, taken as a whole; or any
Subsidiary; provided that no Borrower and no Subsidiary shall be required by
reason of this ss.6.3 to comply therewith at any time while such Borrower or
such Subsidiary shall be contesting its obligations to do so in good faith by
appropriate proceedings promptly initiated and diligently conducted, and if it
shall have set aside on its books such reserves, if any, with respect thereto as
are required by GAAP and deemed adequate by Borrowers and their independent
public accountants. No Borrower and no Subsidiary will, without the prior
written consent of the Lenders, engage in any business other than the Current
Lines of Business.
ss.6.4 Insurance. Each Borrower will maintain or cause to be maintained
on all insurable properties now or hereafter owned by such Borrower and any
Subsidiary, insurance against loss or damage by fire or other casualty, business
interruption insurance, public liability and workmen's compensation insurance,
product liability insurance including medical product liability coverage,
environmental insurance, and insurance relative to representations and
warranties of businesses whose assets or stock may be acquired by or merged into
any Borrower or Subsidiary in any manner, all in amounts and with insurance
companies satisfactory to the Required Lenders, and in any event providing
coverage to the extent customary with respect to companies conducting similar
businesses. A current schedule of all insurance policies maintained by the
Borrowers is annexed hereto as Schedule 6.4. The Borrower shall provide the
Agent with an annual schedule of insurance in the form of Schedule 6.4 at the
time of delivery of the financial statements required in ss.6.2(a). Each
Borrower and Subsidiary will, upon request, will furnish to the Lenders
satisfactory evidence of such insurance.
ss.6.5 Payment of Taxes. Each Borrower will, and will cause each
Subsidiary to, pay and discharge promptly as they become due and payable all
taxes, assessments and other governmental charges or levies imposed upon it or
its income or upon any of its properties or assets, or upon any part thereof, as
well as all lawful claims of any kind (including claims for labor, materials and
supplies) which, if unpaid, might by law become a lien or a charge upon its
properties or assets provided that no Borrower and no Subsidiary shall be
required to pay any such tax, assessment, charge, levy or claim if the amount,
applicability or validity thereof shall currently be contested in good faith by
appropriate proceedings promptly initiated and diligently conducted and if such
Borrower or such Subsidiary, as the case may be, shall have set aside on its
books such reserves, if any, with respect thereto as are required by GAAP and
deemed appropriate by Borrowers and their independent public accountants.
ss.6.6 Payment of Other Indebtedness, etc. Except as to matters being
contested in good faith and by appropriate proceedings, each Borrower will, and
will cause each Subsidiary to, pay promptly when due, or in conformance with
customary trade terms, all other Indebtedness and obligations incident to the
conduct of its business.
ss.6.7 Further Assurances. From time to time hereafter, Borrowers will
execute and deliver, or will cause to be executed and delivered, such additional
instruments, certificates or documents, and will take all such actions, as any
of the Lenders may reasonably request for the purposes of implementing or
effectuating the provisions of this Credit Agreement or the other Loan
Documents. Upon the exercise by the Lenders (or the Agent on their behalf) of
any power, right, privilege or remedy pursuant to this Credit Agreement or the
other Loan Documents which requires any privilege, consent, approval,
registration, qualification or authorization of any governmental authority or
instrumentality, Borrowers will execute and deliver, or will cause the execution
and delivery of, all applications, certifications, instruments and other
documents and papers that any of the Lenders may be required to obtain for such
governmental consent, approval, registration, qualification or authorization.
Without limitation of the foregoing, upon receipt of an affidavit of any officer
of any of the Lenders as to the loss, theft, destruction or mutilation of any
Note or other Loan Document which is not of public record, upon cancellation of
such Note or other Loan Document, the applicable Borrower(s) shall execute and
issue in lieu thereof, a replacement note or other loan document in the same
principal amount and of like tenor.
ss.6.8 Depository Account. Borrower will move its principal operating
accounts to the Agent within 90 days of the date of this Agreement, but any
Borrower or Subsidiary may also maintain one or more other deposit accounts with
any other Lender or Lenders .
ss.6.9 Use of Proceeds. Borrowers will use the proceeds of the Loans
only for the purposes not prohibited by, and subject to the terms and conditions
of, ss.5.13 and ss.5.16.
ss.6.10 Year 2000. Borrowers and Subsidiaries shall at all times
maintain their computer systems and computer software in such a manner as to
assure that such systems and software contain no deficiencies relating to
formatting for entering dates and shall take all reasonable measures to assure
that all of Borrowers' and Subsidiaries' customers and vendors have taken
reasonable measures to address the so-called Year 2000 Problem.
ss.6.11 Regulation U. If requested by any Lender, Borrower will
promptly furnish such Lender with a statement in conformity with the
requirements of Federal Reserve Form U-1 referred to in said Regulation U.
ss.7. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS.Each Borrower covenants and
agrees that, so long as any Loan or Note is outstanding or the Lenders have any
Available Revolving Commitment:
ss.7.1 Indebtedness. Borrowers will not, nor will Borrowers permit any
Subsidiary to, create, incur, assume or become or remain liable in respect of
any Indebtedness, except:
(a) Indebtedness to the Lenders hereunder;
(b) Indebtedness of any wholly-owned Subsidiary to any Borrower or
any other wholly-owned Subsidiary and of any Borrower to any wholly-owned
Subsidiary of such Borrower or of any other Borrower; provided, however, that
(i) all moneys due from any Borrower to any Subsidiary which is not a Borrower
will be expressly constituted as Subordinated Debt and (ii) Borrowers shall not
repay any such moneys due to any Subsidiary at any time unless no Event of
Default exists and no event which, with the giving of notice or lapse of time or
both, would constitute an Event of Default exists or will exist after such
repayment;
(c) Current liabilities of Borrowers and Subsidiaries (other than for
borrowed money) incurred in the ordinary course of their businesses and in
accordance with customary trade practices;
(d) Existing Indebtedness of Borrowers and Subsidiaries referred to
in Schedule 5.8 attached hereto, and renewals and extensions thereof, provided
that (i) the aggregate principal amount of such Indebtedness is not at any time
increased, (ii) no material terms applicable to such Indebtedness shall be more
favorable to the renewal or extension lenders than the terms that are applicable
to the holders of such Indebtedness on the date hereof and (iii) the interest
rate applicable to such Indebtedness shall be a market interest rate as of the
time of such renewal or extension;
(e) Indebtedness of Borrowers and Subsidiaries secured by Permitted
Liens;
(f) Indebtedness of Borrowers and Subsidiaries in respect of
guarantees to the extent the underlying Indebtedness is permitted by this ss.7.
1;
(g) Subordinated Debt;
(h) To the extent thereof shall not at the time by required by 6.5,
Indebtedness in respect of taxes, assessments, governmental changes and claims
for labor, material and supplies;
(i) Indebtedness in respect of judgments or awards (i) which have
been in force for less than the applicable appeal period or (ii) in respect to
which the affected Borrower or Subsidiary shall at the time in good faith be
prosecuting an appeal or proceedings for review, and in each case such Borrower
or such Subsidiary shall have taken appropriate reserves therefor in accordance
with GAAP;
(j) Indebtedness in respect of deferred taxes arising in the
ordinary course of business; and
(k) Indebtedness to other lenders in connection with overdraft
protection on deposit accounts, issuance of incidental trade letters of credit
and payment of import and customs duties and the like provided that such
Indebtedness does not exceed $1,000,000 in the aggregate committed among all
Borrowers.
ss.7.2 Mortgages, Liens, etc. No Borrower will, nor will any Borrower
permit any Subsidiary to, directly or indirectly, create, incur, assume or
suffer to exist, any mortgage, lien, charge or encumbrance on, or security
interest in, or pledge of, or conditional sale or other title retention
agreement (including any Capitalized Lease) with respect to any property or
asset now owned or hereafter acquired by any Borrower or any Subsidiary, except
for the following (collectively, "Permitted Liens"):
(a) Subject to ss.7. 1 (b), any lien on property of a Subsidiary
securing Indebtedness of such Subsidiary to any Borrower;
(b) The mortgages and security interests referred to in Schedule 7.2
attached hereto, or any renewal, extension or refunding of any such mortgage or
security interest in an amount not exceeding the amount thereof remaining unpaid
immediately prior to such renewal, extension or refunding;
(c) Purchase money mortgages, liens and other security interests,
including Capitalized Leases, created in respect of property acquired by any
Borrower or any Subsidiary after the date hereof or existing in respect of
property so acquired at the time of or in relation to the acquisition thereof,
provided that (i) each such lien shall at all times be confined solely to the
item or items of property so acquired, and (ii) the aggregate principal amount
of Indebtedness secured by all such liens shall at no time exceed $2,000,000;
(d) Liens for taxes and other amounts not yet delinquent or being
contested in good faith as provided in ss.6.5; liens in connection with
workmen's compensation, unemployment insurance or other social security
obligations; liens securing the performance of bids, tenders, contracts, leases,
statutory obligations, surety and appeal bonds, liens to secure progress or
partial payments and other liens of like nature arising in the ordinary course
of business; mechanics', workmen's, materialmen's or other like liens arising in
the ordinary course of business in respect of obligations which are not yet due
or which are being contested in good faith; and other liens or encumbrances
incidental to the conduct of the business of any Borrower or any Subsidiary or
to the ownership of their respective properties or assets, which were not
incurred in connection with the borrowing of money or the obtaining of credit
and which do not, individually or in the aggregate, materially detract from the
value of the properties or assets of Borrowers or any Subsidiaries or materially
affect the use thereof in the operation of their respective businesses;
(e) Encumbrances in the nature of (i) zoning restrictions, (ii)
easements, (iii) restrictions of record on the use of real property, (iv)
landlords' and lessors' Liens and security deposits paid by any Borrower on
rented premises and (v) restrictions on transfers or assignments of leases,
which in each case do not, individually or in the aggregate, materially detract
from the value of the encumbered property or impair the use thereof in the
businesses of Borrowers or any Subsidiaries;
<PAGE>
(f) Liens in respect of judgments or awards, to the extent that such
judgments or awards are permitted by ss.7.1 (i);
(g) Restrictions under federal and state securities laws on the
transfer of securities; and
(h) Restrictions under foreign trade regulations on the transfer
or licensing of certain assets.
ss.7.3 Loans, Guarantees and Investments. No Borrower will, nor will any
Borrower permit any Subsidiary to make or permit to remain outstanding any loan
or advance or guarantee or endorse (except as a result of endorsing negotiable
instruments for deposit or collection in the ordinary course of business) or
otherwise assume or remain liable with respect to any obligation of, or make or
own any investment in, or acquire (except in the ordinary course of business)
the properties or assets of, any Person, except:
(a) Extensions of credit by any Borrower or any Subsidiary in the
ordinary course of business in accordance with customary trade practices;
(b) The presently outstanding investments, loans and advances, if any,
and the presently existing guarantees, if any, of Borrowers and Subsidiaries all
to the extent set forth on Schedule 5.8 attached hereto and any renewal,
extension or refunding thereof, provided that (i) the aggregate principal amount
thereof is not at any time increased, (ii) no material terms applicable thereto
shall be more favorable to the Borrower or recipient, as the case may be, than
the terms that are applicable to the Borrower or recipient, as the case may be
on the date hereof and (iii) the interest rate (if any ) applicable thereto
shall be a market interest rate as of the time of such renewal or extension.
(c) Direct obligations of the United States of America or any department
or agency thereof maturing not more than one year from the date of acquisition
thereof,
(d) Certificates of deposit, repurchase agreements, time deposits
(including sweep accounts), demand deposits, bankers acceptances, money market
deposits or other similar types of investments maturing not more than one year
from the date of acquisition thereof and evidencing direct obligations of any
Lender or any lender within the United States of America, England, Ireland,
Germany, France or other European countries, in each case having capital surplus
and undivided profits in excess of the equivalent of $50,000,000;
(e) Investments in commercial paper maturing within ninety (90) days
from the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from Moody's or S&P;
(f) Any mutual fund or other pooled investment vehicle which invests
principally in obligations described in subparagraphs (c), (d) or (e) above and
having, at the date of investment in such fund or vehicle, one of the two
highest credit ratings from Moody's or S&P;
(g) Equity investments by Borrowers' wholly-owned Subsidiaries in any
other wholly-owned Subsidiary and of Borrowers in any of their wholly-owned
Subsidiaries;
(h) Loans to the extent permitted by ss.7. 1 (b);
(i) Acquisitions by Borrowers and Subsidiaries of all of the capital
stock or of all or substantially all of the business or assets of other Persons,
provided that without the consent of the Required Lenders: (i) the aggregate
amount of total consideration paid by the Borrowers and the Subsidiaries in any
one such acquisition (including debt assumed) shall not exceed $15,000,000, (ii)
the activities historically conducted by the Persons whose capital stock, assets
or business are to be acquired by the Borrowers and Subsidiaries is
predominantly in the same or closely related business lines to those of the
Borrowers and Subsidiaries, (iii) the business to be acquired has evidenced a
positive EBITDA in each of the three most current fiscal years of such business
(as evidenced by certified public accountant-prepared financial reporting in
accordance with GAAP), (iv) after giving effect to the acquisition, the
Borrowers and Subsidiaries shall be fully in compliance with all Financial
Covenants and (vi) the Borrowers shall have provided to the Lenders, prior to
the consummation of such acquisition in the case of an acquisition for total
consideration of $5,000,000 or more, and immediately thereafter in the case of
an acquisition for total consideration of less than $5,000,000: (A) pro forma
covenant compliance calculations giving effect to the acquisition, (B)
historical fiscal and the most recent interim financial statements with respect
to the business proposed to be required, and (C) summary reports as to the due
diligence conducted by the Borrowers and Subsidiaries with respect to the
business proposed to be acquired; and
(j) Guarantees by Borrowers of Indebtedness and other obligations
incurred by Subsidiaries to the extent permitted by ss. 7. 1.
ss.7.4 Leases. No Borrower will, nor will any Borrower permit any Subsidiary to,
enter into any Capitalized Lease, except as otherwise permitted under ss.7.1 and
ss.7.2.
ss.7.5 Mergers and Consolidations. No Borrower will, nor will any Borrower
permit any Subsidiary to enter into any merger or consolidation, except the
following:
(a) Any wholly-owned Subsidiary of any Borrower may merge or be
liquidated into such Borrower or any other wholly-owned Subsidiary of such
Borrower so long as after giving effect to any such merger to which any Borrower
is a party, such Borrower shall be the surviving or resulting Person; and
(b) Mergers constituting investments permitted by ss.7.3(i) so long as
after giving effect to any such merger to which any Borrower is a party, such
Borrower shall be the surviving or resulting Person;
provided in each instance that the Borrowers and Subsidiaries remain in
compliance with the Financial Covenants contained herein immediately after such
merger or consolidation.
ss.7.6 Sale of Assets. No Borrower will, nor will any Borrower permit any
Subsidiary to sell, lease or otherwise dispose of property or assets valued at
in excess of $100,000.00 in the aggregate in the case of any Borrower, or
$250,000.00 in the aggregate for all Borrowers in any fiscal year outside of the
ordinary course of its/their business.
ss.7.7 Capital Expenditures. NOT APPLICABLE
ss.7.8 Distributions. No Borrower will make any distribution or declare or pay
any cash dividends on, or purchase, acquire or redeem or retire any of its
capital stock of any class, whether now or hereafter outstanding; provided, that
so long as there is no continuing Event of Default under this Credit Agreement
and that such repurchase would not result in an Event of Default or an event
which with the passage of time or giving of notice or both would be an Event of
Default, Borrower may repurchase up to 600,000 shares of its issued and
outstanding capital stock in any one fiscal year in accordance with the
provisions of the Borrower's August 1997 Board of Directors authorization (the
"Authorized Share Repurchases"). Borrower represents to the Lenders that, up to
the Closing Date it has repurchased the shares of its issued and outstanding
capital stock described in Schedule 7.8.
ss.7.9 Compliance with ERISA. Each Borrower will make, and will cause all ERISA
Affiliates to make, all payments or contributions to Employee Benefit Plans and
Multiemployer Plans required under the terms thereof and in accordance with
applicable minimum funding requirements of ERISA and the Code and applicable
collective bargaining agreements. Each Borrower will cause all Employee Benefit
Plans sponsored by it or any ERISA Affiliates to be maintained in material
compliance with ERISA and the Code. No Borrower will engage, or permit or suffer
any ERISA Affiliate or any Person entitled to indemnification or reimbursement
from such Borrower or any ERISA Affiliate to engage, in any prohibited
transaction under ERISA or the Code for which an exemption is not available. No
Borrower and no ERISA Affiliate will terminate, or permit the PBGC to terminate,
any Employee Benefit Plan or withdraw from any Multiemployer Plan, in any manner
which could result in material liability of any Borrower or any ERISA Affiliate.
ss.7.10 Transactions with Affiliates. No Borrower will, nor will any Borrower
permit any Subsidiary to, directly or indirectly, enter into any lease or other
transaction with any Affiliate of such Borrower or such Subsidiary (other than
any other Borrower) on terms that are less favorable to such Borrower or such
Subsidiary than those which could reasonably be obtained at the time from a
non-Affiliate.
ss.7.1 1 Observance of Subordination Provisions, etc. No Borrower will make, nor
will any Borrower cause or permit to be made, any payments in respect of any
Subordinated Debt, in contravention of the subordination provisions contained in
the evidence of such Subordinated Debt or in contravention of any written
agreement pertaining thereto, nor will any Borrower (a) amend, modify or change
in any manner any of such subordination provisions or (b) amend, modify or
change in any manner adverse to the interests of the Lenders any of the other
provisions set forth in the agreements under which such Subordinated Debt is
outstanding or contained in the evidence of such Subordinated Debt.
ss.7.12 Environmental Liabilities. No Borrower will, nor will any Borrower
permit any Subsidiary to, violate any requirement of any material law, rule or
regulation regarding Hazardous Materials; and, without limiting the foregoing,
no Borrower will, nor will any Borrower permit any Subsidiary or any other
Person to dispose of any Hazardous Material into or onto, or (except in
accordance with applicable law) from, any real property owned, leased or
operated by any Borrower or any Subsidiary or in which any Borrower or any
Subsidiary holds, directly or indirectly, any legal or beneficial interest or
estate, nor allow any lien imposed pursuant to any law, regulation or order
relating to Hazardous Materials or the disposal thereof to be imposed or to
remain on such real property, except for liens being contested in good faith by
appropriate proceedings and for which adequate reserves have been established
and are being maintained on the books of Borrowers and Subsidiaries.
ss.7.13 Subsidiaries. Borrowers will not create any new Subsidiaries other than
wholly-owned Subsidiaries created in connection with Permitted Investments under
this Credit Agreement.
ss.7.14 Issuance of Shares. Borrowers shall not permit any of their wholly-owned
Subsidiaries to issue or sell any shares of such Subsidiary's capital stock or
other evidence of beneficial ownership to any Person other than Borrowers or
minority interests (not in excess of 10% of the capital stock of such issuing or
selling Borrower or Subsidiary in the aggregate) therein to executive officers
of any Borrower.
ss.7.15 Subsidiary Distributions. No Borrower shall permit any of its
wholly-owned Subsidiaries to enter into or become bound by any agreement
(including covenants requiring the maintenance of specified amounts of net worth
or liquidity) other than restrictions imposed by local law, restricting the
right of any Subsidiary to make distributions or dividends to Borrowers.
ss.7.16 Material Adverse Change. Borrowers will not take nor fail to take
any action that could reasonably be expected to result in a Material Adverse
Change.
ss.7.17 No Negative Pledges. No Borrower shall covenant or agree with any Person
other than the Lenders pursuant to this Credit Agreement that it will not
directly or indirectly create, incur, assume or suffer to exist any mortgage,
lien, charge or encumbrance on, or security interest in, or pledge of, or
conditional sale or other title retention agreement with respect to any property
or asset now owned or hereafter acquired by such Borrower or any Subsidiary,
other than property or assets in which any Borrower has granted a purchase money
security interest to the extent permitted in ss.7.2.
ss.8. FINANCIAL COVENANTS. Borrowers covenant and agree that, so long as
any Loan or Note is outstanding or the Lenders have any Available Revolving
Commitment, Borrowers and Subsidiaries shall maintain at all times, on a
Consolidated basis, each of the following:
(a) Adjusted Tangible Net Worth. Adjusted Tangible Net Worth on the
Closing Date of at least $40,000,000, and thereafter, measured on a fiscal
year-end basis, in an amount at least equal to the sum of (x) $40,000,000 plus
(y) fifty percent (50%) of the Net Income of Borrower and its Subsidiaries (if
positive) for each fiscal year, commencing with the fiscal year in which the
Closing Date occurs;
(b) Maximum Leverage. A ratio of Indebtedness for borrowed money of
Borrower and its Subsidiaries on a Consolidated basis to Capitalization of
Borrower and its Subsidiaries on a Consolidated basis of less than or equal to
one to two (1.0:2.0), measured on a fiscal quarter-end basis;
(c) Debt Coverage. A ratio of Senior Debt of Borrowers and Subsidiaries
to EBITDA of Borrowers and Subsidiaries not to exceed two and one half to one
(2.5:1.0), with each such ratio measured on a fiscal quarter-end basis and with
EBITDA of Borrowers and their Subsidiaries based on the period of four (4)
consecutive fiscal quarters ending on such fiscal quarter-end;
(d) Cash Flow Coverage. A ratio of (i) EBITDA of Borrowers and
Subsidiaries less Capital Expenditures of Borrowers and Subsidiaries not funded
by Indebtedness for borrowed money less taxes on income and profits paid in cash
by Borrowers and Subsidiaries to (ii) required interest and principal payments
made by and on all Indebtedness for borrowed money of at least (w) for the four
fiscal quarters ending December 26, 1999, 1.25:1.0 (taking into account the
actual Cash Flow of UroQuest's Bivona Corporation subsidiary for such period,
including Cash Flow of UroQuest's Bivona Subsidiary for portions of this period
prior to the UroQuest Transaction), (x) for the four fiscal quarters ending
March 26, 2000, 1.3:1.0 (taking into account the actual Cash Flow of UroQuest's
Bivona Corporation subsidiary for such period, including Cash Flow of UroQuest's
Bivona Subsidiary for portions of this period prior to the UroQuest
Transaction), (y) for the four fiscal quarters ending June 30, 2000, 1.3:1.0
(taking into account the actual Cash Flow of UroQuest's Bivona Corporation
subsidiary for such period, including Cash Flow of UroQuest's Bivona Subsidiary
for portions of this period prior to the UroQuest Transaction), and (z) for each
fiscal quarter ending after September 24, 2000, 1.3:1.0 one and three tenths to
one, with each such ratio measured on a fiscal quarter-end basis and based on
the period of four (4) consecutive fiscal quarters ending on such fiscal
quarter-end.
ss.9. DEFAULTS; REMEDIES.
ss.9.1 Events of Default; Acceleration. If any of the following events
(each an "Event of Default") shall occur:
(a) Borrowers shall default in the payment of principal of or interest
on any Note or any other fee due hereunder, whether at maturity or at a date
fixed for the payment of any installment or prepayment thereof or otherwise and
such default continues uncured for five (5) calendar days; or
(b) Borrowers shall default in the performance of or compliance with
any term contained in ss.6.2(h), ss.6.3, ss.6.9, ss.6.10 and ss.7.1 through and
including ss.7.17, and ss.8; or
(c) Borrowers shall default in the performance of or compliance with
any term, conditions covenant or agreement (other than those listed in
ss.9.1(b))to be performed or observed by it under this Credit Agreement or under
any other Loan Document, and such default shall continue uncured for ten (10)
business days from its occurrence; or
(d) Any representation or warranty made by Borrowers herein or pursuant
hereto shall prove to have been false or incorrect in any material respect when
made or when deemed to have been made; or
(e) Any Borrower or any Subsidiary shall default in (i) the payment of
any Indebtedness in respect of borrowed money (other than the Loans), any
Capitalized Lease or the deferred purchase price of any property and such
default (A) shall continue after giving effect to any applicable grace periods
and (B) shall be in respect of any aggregate amount of principal (whether or not
due) and accrued interest exceeding $500,000; or (ii) the performance or
compliance with any term of any agreement or instrument relating to Indebtedness
in an aggregate amount of principal (whether or not due) and accrued interest
exceeding $500,000 and such default (A) shall continue, without having been duly
cured, waived or consented to, beyond the period of grace, if any, specified in
such agreement or instrument, and (B) shall permit the acceleration of such
Indebtedness prior to its stated maturity; or
(f) Any Borrower or any Subsidiary shall discontinue a primary line of
business or shall make an assignment for the benefit of creditors, or shall fail
generally to pay its debts as such debts become due, or shall apply for or
consent to the appointment or taking possession by a trustee, receiver or
liquidator (or other similar official) of such Borrower or such Subsidiary or
any substantial part of the property of any Borrower or of any Subsidiary, or
shall commence a case or have an order for relief entered against it under the
federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law, or if
any Borrower or any Subsidiary shall take any action to dissolve or liquidate
such Borrower or such Subsidiary; or
(g) If, within sixty (60) days after the commencement against any
Borrower or any Subsidiary of a case under the federal bankruptcy laws, as now
or hereafter constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, such case shall have been consented to or shall
not have been dismissed or all orders or proceedings thereunder affecting the
operations or the business of such Borrower or such Subsidiary stayed, or if the
stay of any such order or proceeding shall thereafter be set aside, or if within
sixty (60) days after the entry of a decree appointing a trustee, receiver or
liquidator (or other similar official) of any Borrower or any Subsidiary or any
substantial part of the property of such Borrower or such Subsidiary, such
appointment shall not have been vacated; or
(h) A final judgment which, with other outstanding final judgments
against such Borrower and its Subsidiaries, exceeds an aggregate of $500,000
shall be rendered against any Borrower or any Subsidiary and if, within thirty
(30) days after entry thereof, such judgment shall not have been discharged or
execution thereof stayed pending appeal, or if, within thirty (30) days after
the expiration of any such stay, such judgment shall not have been discharged,
or if any such judgment shall not be discharged forthwith upon the commencement
of proceedings to foreclose any lien, attachment or charge which may attach as
security therefor and before any of the property or assets of any Borrower or
any Subsidiary shall have been seized in satisfaction thereof, or
(i) Any of the Borrowers or any Subsidiary loses, fails to keep in
force, suffers the termination or revocation of or terminates, forfeits or
suffers an amendment to any License which would have a material adverse effect
on the ongoing operations of such Borrower or Subsidiary; or
(j) There shall have occurred a Change in Control; or
(k) If with respect to any Employee Benefit Plans or Multiemployer
Plans, there shall occur any of the following which could reasonably be expected
to have a material adverse effect on the financial condition of any Borrower:
(i) the violation of any of the provisions of ERISA; (ii) the loss by such a
plan intended to be a Qualified Plan of its qualification under Section 401 (a)
of the Code; (iii) the incurrence of liability under Title IV of ERISA; (iv) a
failure to make full payment when due of all amounts which, under the provisions
of any such plan or applicable law, any Borrower or any ERISA Affiliate is
required to make; (v) the filing of a notice of intent to terminate such a plan
under Section 4041 or 4041 A of ERISA; (vi) a complete or partial withdrawal of
any Borrower or any ERISA Affiliate of a tax under Section 4980B of the Code;
then, and in any such event, and at any time thereafter, if any Event of Default
(other than an event described in ss.9(f) or ss.9(g) hereof) shall then be
continuing, the Required Lenders may direct the Agent to, by written notice to
Borrower, (i) declare the principal of and accrued interest in respect of the
Notes to be forthwith due and payable, whereupon the principal of and accrued
interest in respect of the Notes, and all other amounts then due hereunder,
shall become forthwith due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by Borrowers,
and/or (ii) terminate the Revolving Loan Commitment, whereupon the Revolving
Loan Commitment of the Lenders (and the Commitment of each individual Lender) to
make Loans hereunder shall forthwith terminate without any other notice of any
kind; and with respect to any event described in ss.9(f) or ss.9(g) above, the
Commitments shall automatically terminate and the principal of the Notes then
outstanding, together with accrued interest thereon and all other amounts then
due hereunder, shall automatically become due and payable, without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived by Borrowers, anything contained herein or in any other Loan
Document to the contrary notwithstanding.
ss.9.2 Remedies on Default, etc. In case any one or more Events of Default shall
occur and be continuing, the Lenders may proceed to protect and enforce their
rights by an action at law, suit in equity or other appropriate proceeding,
whether for the specific performance of any agreement contained herein or in any
other Loan Document, or for an injunction against a violation of any of the
terms hereof or thereof, or in
<PAGE>
aid of the exercise of any power granted hereby or thereby or by law. In case of
a default in the payment of any principal of or interest on any Note, or in the
payment of any fee due hereunder, Borrowers will pay to the Lenders such further
amount as shall be sufficient to cover the cost and expense of collection,
including the Lenders' attorneys' fees, expenses and disbursements. In addition,
with respect to any payment of principal or interest shall remain due and unpaid
for more than fifteen (15) days after its due date, the Borrowers shall pay to
the Agent for the ratable account of the Lenders a late charge in the amount of
five (5%) of such payment in addition to any other amounts due under the Loan
Documents. No course of dealing and no delay on the part of the Lenders in
exercising any right shall operate as a waiver thereof or otherwise prejudice
the Lenders' rights. No right conferred hereby or by any other Loan Document
upon the Lenders shall be exclusive of any other right referred to herein or
therein or now or hereafter available at law, in equity, by statute or
otherwise.
ss.10. CLOSING CONDITIONS. The obligations of the Lenders to make the
initial Loans shall be subject to the satisfaction of the following conditions
precedent:
ss.10.1. Loan Documents, etc. Each of the Loan Documents shall have been duly
executed and delivered by Borrowers shall be in full force and effect and shall
be in form and substance reasonably satisfactory to the Lenders. The Agent shall
have received a fully executed original of each such Loan Document and each
Lender shall have received a true copy of each Loan Document as signed, and an
original signed copy of each of the Notes in favor of such Lender.
ss.10.2. Corporate Action. All corporate action necessary for the valid
execution, delivery and performance by Borrowers of this Credit Agreement and
the other Loan Documents shall have been duly and effectively taken, and
evidence thereof reasonably satisfactory to the Lenders shall have been provided
to the Lenders.
ss.10.3. Incumbency Certificate. The Lenders shall have received from each
Borrower an incumbency certificate, dated as of the Closing Date, signed by a
duly authorized officer of such Borrower and giving the name and bearing a
specimen signature of each individual who shall be authorized in the name and on
behalf of Borrower, (a) to sign each of the Loan Documents; and (b) to give
notices and to take other action under the Loan Documents.
ss.10.4. Opinions of Counsel. The Lenders shall have received a favorable
opinion addressed to the Lenders, dated as of the Closing Date, in the form of
Exhibit E attached hereto, from Bingham Dana LLP as counsel for Chemfab and from
local counsel for the other Borrowers.
ss.10.5. Payment of Fees. The Borrowers shall have paid to the Agent (i) the
fees and expenses of the Agent's counsel in connection with the documentation of
the transactions described in this Credit Agreement, (ii) all fees then due and
payable pursuant to ss.2.2(b) and 2.2(c) and elsewhere under this Credit
Agreement, and (iii) all fees and other amounts due pursuant to any fee letter
among the Borrowers and the Agent.
ss.10.6. UroQuest Transaction. Before the Lenders shall have any obligation to
fund the Term Loan, the Borrower, either directly or through a Subsidiary, shall
have completed the UroQuest Transaction and shall, either directly or through a
Subsidiary, have succeeded to all of the properties and business of UroQuest.
The Per Share Consideration for the UroQuest Transaction shall have been paid or
fully reserved by the Borrowers or Subsidiaries and all other conditions to the
consummation of the UroQuest Transaction contained in such transaction documents
or otherwise, shall have been fully satisfied, or waived (subject to approval by
the Lenders).
ss.10.7. No Material Adverse Change. No Material Adverse Change shall have
occurred between the date of the Borrowers' fiscal financial statements as of
June 30, 1999 and the Closing Date.
ss.10.8. Payoff Letter. The Lenders shall have received a copy of a payoff
letter from the Borrower's existing lender in form satisfactory to the Agent.
ss.11. CONDITIONS TO ALL LOANS. The obligations of the Lenders to make any Loan
whether on or after the Closing Date, shall also be subject to the satisfaction
of the following conditions precedent:
ss.11.1. Accuracy of Representations; No Event of Default. After giving effect
to the Loans proposed to be made on such Drawdown Date, (i) all representations
and warranties of Borrowers contained in this Credit Agreement, the other Loan
Documents or in any document or instrument delivered pursuant to or in
connection with this Credit Agreement shall be true and correct as of the date
as of which they were made and shall also be true and correct 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,
or to the extent that such representations and warranties relate expressly to an
earlier date) and (ii) no Event of Default or other event which, with the giving
of notice or passage of time, would constitute an Event of Default shall have
occurred and be continuing. On or before the date of the Loans, the Agent, on
behalf of the Lenders, shall have received a certificate of signed by the chief
financial officer or treasurer of Borrower to such effect.
ss. 11.2. Loan Request. The Agent shall have received a Loan Request in the form
required by ss.2.7.
ss. 11.3. No Legal Impediment. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Lender would make it illegal for such Lender to make such Loan.
ss. 11.4. Due Diligence Complete. Before the Lenders have any obligation to
make any Loan to any particular Borrower, such Borrower shall have provided
to the Agent copies of its constituent organizational documents, evidence of
its continued legal existence, evidence of its compliance with the
representations, warranties and covenants contained in this Credit Agreement,
opinions of its respective counsel as to the due authorization, execution and
delivery and enforceability of the Loan Documents with respect to such Borrower,
and such other information as the Agent may reasonably require of such Borrower.
ss. 12. THE AGENT.
ss.12.1. Appointment, Powers and Immunities. Each Lender hereby irrevocably
appoints and authorizes the Agent to act as its agent hereunder and under each
of the Loan Documents specifically delegated to the Agent by the terms of this
Credit Agreement and the Loan Documents, together with such other powers as are
reasonably incidental thereto. The Agent (which term as used in this sentence
and in ss. 12.5 and the first sentence of ss. 12.6 shall include reference to
its Affiliates and the respective officers, directors, employees and agents of
the Agent and its Affiliates): (a) shall have no duties or responsibilities
except those expressly set forth in this Credit Agreement to be a trustee for
any Lender; (b) shall not be responsible to the Lenders for any recitals,
statements, representations or warranties contained in this Credit Agreement, or
in any certificate or other document referred to or provided for in, or received
by any of them under, this Credit Agreement, or for the value, validity,
effectiveness, genuineness, enforce ability, perfection or sufficiency of this
Credit Agreement, any Note or any other document referred to or provided for
herein or for any failure by Borrowers or any other Person to perform any of its
obligations hereunder or thereunder; (c) shall not be required to initiate or
conduct any litigation or collection proceedings hereunder except to the extent
requested by or consented to by the Required Lenders; and (d) shall not be
responsible for any action taken or omitted to be taken by it hereunder or under
any other document or instrument referred to or provided for herein or in
connection herewith, except for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Subject to the foregoing, the Agent shall,
on behalf of the Lenders, exercise any and all rights, powers and remedies of
the Lenders under this Credit Agreement and any other Loan Documents, including
the giving of any consent or waiver or the entering into of any amendment,
subject to the provisions of ss.25.
ss.12.2. Reliance by Agent. The Agent shall be entitled to rely upon any
certifications, notices or communications (including any communications by
telephone, telex, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Agent. As to any matters not expressly provided
for by this Credit Agreement, the Agent shall in all cases be fully protected in
acting, or in refraining from acting, hereunder in accordance with the
instructions of the Lenders, and any action taken or failure to act pursuant
thereto shall be binding on all of the Lenders.
ss. 12.3. Defaults. The Agent shall not be deemed to have knowledge of the
occurrence of an Event of Default (other than the nonpayment of principal of or
interest on the Notes) unless the Agent has received written notice from
Borrowers or any other Lender specifying such Event of Default. In the event
that the Agent receives such a notice of the occurrence of an Event of Default,
the Agent shall give a notice thereof to the Lenders (and shall give each Lender
prompt notice of each such nonpayment). The Agent shall (subject to the
provisions of ss.25 and ss.12.7) take such action with respect to such Event
of Default as shall be directed by the Required Lenders, provided that,
unless and until the Agent shall have received such directions, the Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Event of Default as it shall deem advisable and
in the best interest of the Required Lenders.
ss. 12.4. Rights as a Lender. With respect to its Percentage of the Total
Commitment and the Loans made by it, BBH&CO, in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as the Agent, and the
term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. Except as otherwise provided in
this Credit Agreement, the Agent and its Affiliates may (without having to
account therefor to any Lender) accept deposits from, lend money to and
generally engage in any kind of banking, trust or other business with Borrowers
or Subsidiaries, as if the Agent were not acting as the agent hereunder, and the
Agent may accept fees and other consideration from any of such Persons for
services as the Agent or otherwise without having to account for the same to the
Lenders.
ss. 12.5. Indemnification. The Lenders agree to indemnify the Agent ratably in
accordance with the aggregate principal amount of the Notes held by the Lenders
(or, if no such principal is at the time outstanding, ratably in accordance with
their respective Percentages), for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind and nature whatsoever which may be imposed on, incurred by or
against the Agent, in its capacity as Agent, in any way relating to or arising
out of this Credit Agreement or any of the other Loan Documents or referred to
herein or the transactions contemplated by or referred to herein or therein
(including the costs and expenses which Borrowers are obligated to pay but
excluding, unless an Event of Default has occurred and is continuing, normal
administrative costs and expenses incident to the performance of its agency
duties hereunder) or the enforcement of any of the terms of this Credit
Agreement or of any such other documents, provided that no Lender shall be
liable for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent.
ss. 12.6. Non-Reliance on Agent and Other Lenders. Each Lender agrees that it
has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of Borrowers and its own decision to enter into this Credit
Agreement and that it will, independently and without reliance upon the Agent or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Credit Agreement. The Agent shall not be
required to keep itself informed as to the performance or observance by the
Borrowers of this Credit Agreement or any other document referred to or provided
for herein or to inspect the properties or books of Borrowers. Except for
notices, reports and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition or businesses of
Borrowers which may come into the possession of the Agent or any of its
Affiliates. Notwithstanding the foregoing, the Agent will use its best efforts
to provide to the Lenders any and all information reasonably requested by them
and reasonably available to the Agent promptly upon such request.
ss. 12.7. Failure to Act. Except for action expressly required of the Agent
hereunder, the Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall be indemnified to its satisfaction by
the Lenders against any and all liability and expense which may be incurred by
it by reason of taking or continuing to take any such action.
ss. 12.8. Resignation of Agent. Subject to the appointment and acceptance of a
successor Agent as provided below, the Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Lenders shall appoint a successor Agent which shall be reasonably satisfactory
to Borrower, provided that no approval of the Borrower shall be required during
the continuance of an Event of Default or of an event which with the passage of
time or giving of notice or both would be an Event of Default. If no successor
Agent shall have been so appointed by the Lenders and shall have accepted such
appointment within 30 days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent which shall be a Lender which has a combined capital and surplus
of at least $50,000,000 and which shall be reasonably satisfactory to Borrower,
provided that no approval of the Borrower shall be required during the
continuance of an Event of Default or of an event which with the passage of time
or giving of notice or both would be an Event of Default. 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 if the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After the retiring Agent's
resignation hereunder as Agent, the provisions of this ss.12 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 the Agent.
ss. 12.9. Cooperation of Lenders. Each Lender shall (a) endeavor to and shall
not be liable for any failure to promptly notify the other Lenders and the Agent
of any Events of Default known to such Lender under this Credit Agreement and
not reasonably believed to have been previously disclosed to the other Lenders;
and (b) provide the other Lenders and the Agent with such information and
documentation as such other Lender or the Agent shall reasonably request in the
performance of their respective duties hereunder, including all information
relative to the outstanding balance of principal, interest and other sums owed
to such Lender.
ss. 12.10. Amendment of ss.12. Borrowers hereby agree that the provisions of
this ss. 12 (other than ss.12.8 and ss.12.1 1) generally constitute an agreement
among the Agent and the Lenders and that any and all of the provisions of this
ss.12 (other than ss.12.8 and ss.12.11) may be amended at any time by the
Lenders without the consent or approval of, or notice to, Borrower (other than
the requirement of notice to Borrower of the resignation of the Agent and other
than any provision in addition to ss.12.8 and ss.12.11 to the extent that it
directly affects Borrowers).
ss. 12.11. Reliance. As to any consent that is granted or any other action that
is taken by the Agent hereunder or under the Loan Documents, Borrowers shall be
entitled to rely upon any of the foregoing which is granted, delivered or taken
by the Agent (except to the extent that this Credit Agreement requires the
approval or direction of the Required Lenders or all of the Lenders) and the
Lenders shall be bound hereby, without the necessity of inquiring or confirming
the Agent's authority.
ss. 13. SETOFF, ETC. Regardless of the adequacy of any Collateral, (i) during
the continuance of any Event of Default, (ii) upon the occurrence of any event
which with the passage of time or giving of notice or both would be an Event of
Default or (iii) upon notice of issue of any legal process by which process any
Borrower's assets in the possession of any Lender may be trusteed, attached or
levied upon, the Borrowers grant the Lenders a continuing security interest in
and the right to set off against any deposits or other sums credited by or due
from any Lender to any Borrower and any securities or other property of
Borrowers in the possession of any Lender, the 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 Borrowers to the Lenders. The Lenders
agree among themselves that, with respect to all sums received by the Lenders
applicable to the payment of principal of or interest on the Notes or other
amounts due under the Loan Documents, equitable adjustment will be made among
the Lenders so that, in effect, all such sums shall be shared ratably by each of
the Lenders whether received by voluntary payment, by the exercise of the right
of setoff or banker's lien, by counterclaim or cross-claim or by the enforcement
of any or all of the Notes. If any Lender receives any payment on its Notes of a
sum or sums in excess of its pro rata portion, then such Lender receiving such
excess payment shall purchase for cash from the other Lenders an interest in
their Notes in such amounts as shall result in a ratable participation by each
of the Lenders in the aggregate unpaid amounts of the Notes then outstanding;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such Lender, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
ss. 14. EXPENSES. Whether or not the transactions contemplated hereby shall be
consummated, Borrowers jointly and severally agree to pay (a) the reasonable
direct, out-of-pocket costs of reproducing this Credit Agreement, the other Loan
Documents and the other agreements and instruments mentioned herein, (b) any
taxes (including any interest and penalties in respect thereto) payable by the
Lenders (other than taxes based upon the Lender's net income) on or with respect
to the transactions contemplated by this Credit Agreement (Borrowers hereby
agreeing to indemnify the Lenders with respect thereto), (c) the fees, expenses
and disbursements of the Agent's counsel incurred in connection with the
preparation of the Loan Documents and other instruments mentioned herein and the
reasonable fees, expenses and disbursements of the Agent's counsel and any local
counsel to the Lenders in connection, with any amendments, modifications,
approvals, consents, waivers or Replacement Lenders hereto or hereunder and (d)
all reasonable out-of-pocket expenses (including attorneys fees and costs for
external counsel to the Lenders and the allocated costs and disbursements of
internal counsel of the Lenders) incurred by the Lenders in connection with (i)
the enforcement of or preservation of rights under any of the Loan Documents
against Borrower or the administration thereof after the occurrence of an Event
of Default or any event which, with the giving of notice or passage of time or
both, would constitute an Event of Default, (ii) any replacement of a Lender
pursuant to ss.17.4 and (iii) any litigation, proceeding or dispute arising
hereunder.
ss. 15. INDEMNIFICATION.
ss. 15.1. General Indemnification. Borrowers agree to indemnify and hold
harmless each Lender 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 or thereby, including (a) any actual or proposed use by any
Borrower of the proceeds of any of the Loans, (b) Borrowers entering into or
performing this Credit Agreement or any of the other Loan Documents or (c) with
respect to Borrowers and their 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 the reasonable fees and disbursements of counsel for the Agent,
incurred in connection with any such investigation, litigation or other
proceeding; provided, however, that Borrowers shall not have any obligation to
indemnify the Agent or the Lenders for any liabilities, losses, damages or other
expenses to the extent such liabilities, losses, damages or other expenses
result directly from the Agent's or any Lender's gross negligence, fraud or
willful misconduct, as finally determined (after expiration of all appeals) by a
court of competent jurisdiction. If, and to the extent that the obligations of
Borrowers under this ss.15 are unenforceable for any reason, Borrowers hereby
agree to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law.
ss. 15.2. Foreign Currency Indemnification. Borrowers waive, to the extent they
may lawfully do so, any right they may have in any jurisdiction to pay any Loans
in a currency other than the currency in which such Loan is expressed to be
payable under the Loan Documents (the "Agreed Currency"). If a judgment or order
is rendered by a court or other tribunal of competent jurisdiction for the
payment of amounts owing to the Lenders under the Loan Documents and such order
or judgment is expressed in a currency other than the currency agreed to be paid
under the Loan Documents, or in the event that any payment is made in any
currency other than the Agreed Currency, the Borrowers shall, to the extent
permitted by applicable law, indemnify and hold the Lenders harmless against any
deficiency arising from or resulting from any variation in rates of exchange
between (i) the rate at which any amount expressed in the Agreed Currency is
converted for purposes of such judgment, order or payment into an equivalent
amount of the payment currency, and (ii) the rate at which at the time of
payment of such amount pursuant to any Loan Document such Agreed Currency could
be purchased by the Agent with the payment currency in the spot market in the
place where such payment was to have been made.
ss.16. SURVIVAL OF COVENANTS, ETC. All covenants, agreements, representations
and warranties made herein, in any of the other Loan Documents or in any
documents or other papers delivered by or on behalf of Borrowers pursuant hereto
shall be deemed to have been relied upon by each Lender, notwithstanding any
investigation heretofore or hereafter made by and shall survive the making by
the Lenders 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 any of
the other Loan Documents remains outstanding or the Lenders have any obligation
to make any Loans. All statements contained in any certificate or other paper
delivered to the Lenders at any time by or on behalf of Borrowers pursuant
hereto shall constitute representations and warranties as of the date thereof by
Borrowers hereunder.
ss.17. ASSIGNMENT AND PARTICIPATION.
ss.17.1. Assignment by the Lenders. No Lender shall assign or transfer any of
its rights or obligations under any of the Loan Documents (i) without the prior
written consent of Borrower and the Agent (which shall not be unreasonably
withheld, conditioned or delayed), and (ii) in amounts of less than $5,000,000
unless such Lender assigns its entire remaining interest under the Loan
Documents; provided, however, that any Lender may, at any time and from time to
time, sell, transfer, assign or otherwise grant an interest in any Loan to a
Subsidiary or any Affiliate of such Lender or to a Federal Reserve Bank of the
United States; and provided, further, that upon the occurrence and during the
continuance of an Event of Default, no consent of Borrowers shall be required to
any assignment, and provided further that on occurrence and during the
continuance of an Event of Default described in ss.9(f) or ss.9(g) the consent
of the Agent shall not be required to any assignment. No assignment of any
Lender's interest in the Loans or Loan Documents shall be effective until the
execution and delivery by the assignee of a counterpart signature page to this
Credit Agreement. The Borrowers shall execute and deliver any Notes and other
documents, instruments and agreements required by the assignee Lender and the
Agent to effectuate such assignment. The assigning Lender shall pay to the Agent
an administrative fee in the amount of $2,000 at the time of such assignment, in
connection with and as a condition to the effectiveness of any such assignment.
ss.17.2. Assignment by Borrowers. Borrowers shall not assign or transfer any of
their rights or obligations under any of the Loan Documents without the prior
written consent of the Lenders.
ss.17.3 Participations by the Lenders. Any Lender may, without the consent of
Borrowers, the Agent or any other Lender, sell participating interests to one or
more banks or other entities (each a "Participant") in all or a portion of such
Lender's rights and obligations under this Credit Agreement (including all or a
portion of its Commitment and the Loans owing to it); provided, however, that
(i) such Lender's obligations under this Credit Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, (iii) Borrower, the Agent, and
the other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Credit Agreement
and (iv) such participation shall be in an amount of not less than $1,000,000.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Credit Agreement and to approve any amendment, modification or
waiver of any provision of this Credit Agreement. Borrowers agree that each
Participant shall be entitled to the benefits of ss. 4.5 to the same extent as
if it were a Lender and had acquired its interest by assignment pursuant to
ss.17.1.
ss.17.4 Replacement of Lender. In the event that any Lender (other than the
Agent in its capacity as a Lender) or, to the extent applicable, any Participant
(the "Affected Lender") fails to perform its obligations to fund any portion of
any Loan on or after the Closing Date when required to do so by the terms of
this Credit Agreement, or fails to provide its portion of any LIBOR Loan or
EURIBOR Loan pursuant to ss.2 or on account of any legal requirement as
contemplated by ss.4.4, then, so long as no Event of Default exists, Borrowers
shall have the right to seek, at their own cost and expense, a replacement
lender which is reasonably satisfactory to the Agent and the Required Lenders
(the "Replacement Lender"). The Replacement Lender shall purchase not less than
all of the interests of the Affected Lender in the Loans and its Commitment and
shall assume the obligations of the Affected Lender hereunder and under the
other Loan Documents upon execution by the Replacement Lender of an assignment
agreement in form and substance reasonably satisfactory to the Replacement
Lender and Affected Lender, and the tender by the Replacement Lender to the
Affected Lender of a purchase price agreed between the Replacement Lender and
the Affected Lender. Such assignment by any Affected Lender who has performed
its obligations hereunder shall be deemed an early termination of any Loans to
the extent of such Affected Lender's portion thereof, and the Borrowers will pay
to such Affected Lender any resulting amounts due under ss.4.8 other than
Breakage Costs engendered solely by the assignment by the Affected Lender. Upon
consummation of such assignment, (i) the Replacement Lender shall become party
to this Credit Agreement as a signatory hereto and shall have all the rights and
obligations of the Affected Lender under this Credit Agreement and the other
Loan Documents with a Percentage equal to the Percentage of the Affected Lender,
(ii) the Affected Lender shall be released from its obligations hereunder and
under the other Loan Documents and (iii) no further consent or action by any
party shall be required. Borrower shall sign such documents and take such other
actions reasonably requested by the Replacement Lender to enable it to share in
the benefits of the rights created by the Loan Documents. Until the consummation
of an assignment in accordance with the foregoing provisions of this ss. 17.4,
the Borrowers shall continue to pay to the Affected Lender any Obligations as
they become due and payable.
ss. 18. FOREIGN LENDER. If any Lender is not incorporated or organized under the
laws of the United States of America or a state thereof, such Lender shall
deliver to and the Agent at the following:
(a) Two duly completed copies of United States Internal Revenue Service
Form 1001 or 4224 or successor form, as the case may be, certifying in each case
that such Lender is entitled to receive payments under this Credit Agreement and
the Notes without deduction or withholding of any United States federal income
taxes; provided, however, that if such Lender is not a "bank" within the meaning
of Section 881 (c)(3)(A) of the Code and cannot deliver Form 1001or 4224, such
Lender shall deliver to and the Agent a certificate to such effect; and
(b) A duly completed Internal Revenue Service Form W-8 or W-9 or
successor form, as the case may be, to establish an exemption from United States
backup withholding tax.
Each such Lender that delivers to and the Agent a Form 1001 or 4224 and
Form W-8 or W-9 pursuant to this ss.18 further undertakes to deliver to and the
Agent two further copies of Form 1001 or 4224 and Form W-8 or W-9, or successor
applicable form, or other manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to and the Agent. Such Forms 1001 or 4224 shall certify that
such Lender is entitled to receive payments under this Credit Agreement without
deduction or withholding of any United States federal income taxes. The
foregoing documents need not be delivered in the event any change in treaty, law
or regulation or official interpretation thereof has occurred which renders all
such forms inapplicable or which would prevent such Lender from delivering any
such form with respect to it, or such Lender advises that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax and, in the case of a Form W-8 or W-9, establishing an exemption from
United States backup withholding tax. Until such time as and the Agent have
received such forms indicating that payments hereunder are not subject to United
States withholding tax or are subject to such tax at a rate reduced by an
applicable tax treaty, Borrower shall withhold taxes from such payments at the
applicable statutory rate without regard to ss.4.1(b).
ss. 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 other Loan Documents 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 or, or sent by
telescope, and confirmed by delivery via courier or registered or certified
first class mail, postage prepaid, addressed as follows:
(a) if to Borrower, at 701 Daniel Webster Highway, P.O. Box 1137,
Merrimack, New Hampshire 03054-1137, Attention: Moosa E. Moosa, or at such other
address for notice as Borrower shall last have furnished in writing to the
Person giving the notice;
with a copy to: John R. Utzschneider, Esq.
Bingham Dana, LLP
150 Federal Street
Boston, Massachusetts 02110
(617) 951-8000/Telecopy No. (617) 951-8736
(b) if to the Agent in its capacity as Agent or as Lender, at 40 Water
Street, Boston, Massachusetts 02109, Attention: J. Edward Hall, Manager
(Telecopy No.617 772-1138 ) or such other address for notice as shall last have
furnished in writing to the Person giving the notice;
with a copy to: John L. Hackett, Jr.
Bartlett Hackett Feinberg, P.C.
10 High Street
Boston, Massachusetts 02110
(617) 422-0200/ Telecopy No. (617) 422-0383
(c) if to any Lender, at such Lender's address as shown in Schedule 19
hereto, with a copy to any Person designated in such Schedule 19;
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
(so long as a confirmation receipt is received) 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.
ss.20. GOVERNING LAW. THIS CREDIT AGREEMENT AND EACH OF THE OTHER LOAN DOCUMENTS
ARE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR
ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO .CONFLICTS OR
CHOICE OF LAW). BORROWERS, THE AGENT AND THE LENDERS AGREES THAT ANY SUIT FOR
THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY
BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL
COURT SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH
COURTS AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON SUCH PERSON
BY MAIL AT ITS ADDRESS SPECIFIED IN ss.19. BORROWERS, THE AGENT AND THE LENDERS
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.
ss.21. HEADINGS,. The captions in this Credit Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
ss.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 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. The counterpart
signature pages signed by each Lender hereto are expressly agreed and
acknowledged to be integrated parts of this Credit Agreement.
ss.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 and thereby.
Neither this Credit Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in ss.25.
ss.24. WAIVER OF JURY TRIAL. BORROWERS HEREBY WAIVE THEIR RIGHT TO A JURY TRIAL
WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS CREDIT AGREEMENT 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. BORROWERS HEREBY WAIVE ANY RIGHT THEY
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. BORROWERS (A) CERTIFY THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF THE AGENT OR THE LENDERS HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT EACH OF THE AGENT AND THE LENDERS WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS AND (B) ACKNOWLEDGE
THAT EACH OF THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS CREDIT AGREEMENT
AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY BY, AMONG OTHER THINGS, THE
WAIVERS AND CERTIFICATIONS CONTAINED HEREIN.
ss.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 the Lenders or the Agent may be given,
and any term of this Credit Agreement or of any other instrument related hereto
or mentioned herein may be amended, and the performance or observance by
Borrowers of any terms of this Credit Agreement or such other instrument or the
continuance of any Default or Event of Default may be waived (either generally
or in a particular instance and either retroactively or prospectively) with, but
only with, the written consent of and the written consent of the Required
Lenders. Notwithstanding the foregoing, no amendment or waiver shall, without
the prior written consent of the Agent and all of the Lenders: (a) extend the
Maturity Date of, reduce the principal amount of, reduce the rate or extend the
time of payment of interest on, reduce the amount or extend the time of payment
of any principal or interest of, or discharge or release the Borrowers from any
payment obligation with respect to, any Note (including any extensions of the
Maturity Date pursuant to ss.2.4, except as provided in ss.17.4(b)); (b) change
or waive the Total Commitment, Term Loan Commitment or Revolving Loan Commitment
(other than reductions in the Revolving Loan Commitments pursuant to ss.2.3) or
Percentage; (c) amend or waive this ss.25 or amend or waive the definition of
Required Lenders; (d) change or waive the amount or payment terms of fees due
hereunder; or (e) amend or waive any of ss.9.1(f) or (g) or ss.11. No waiver
shall extend to or affect any obligation not expressly waived nor impair any
right consequent thereon. No course of dealing or delay or omission on the part
of the Lenders in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto. No notice to or demand upon Borrowers shall
entitle Borrowers to other or further notice or demand in similar other
circumstances.
ss.26. CONFIDENTIALITY. No Lender will make any disclosure of confidential
information furnished to it Borrower or any of its Subsidiaries unless such
information shall have become public, except:
(a) in connection with operations under or the enforcement of or the
protection of a Lender's interest in this Credit Agreement or any other Loan
Document to Persons who have a reasonable need to be furnished such information;
(b) pursuant to any law, rule or statutory or regulatory requirement or
any court order, subpoena or other legal process;
(c) to any parent or corporate Affiliate of such Lender or to any
Participant, proposed Participant, assignee, proposed assignee, Replacement
Lender or proposed Replacement Lender; provided, however, that any such Person
shall agree to comply with the restrictions set forth in this ss.26 with respect
to such information;
(d) to its directors, officers, employees, agents, independent counsel,
auditors and other professional advisors and consultants with an instruction to
such Person to keep such information confidential;
(e) to any other Lender and to the Agent and any successor Agent or
prospective successor Agent; and
(f) with the prior written consent of the Borrower, to any other
Person.
ss.27. 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.
ss.28. NATURE OF LENDER'S OBLIGATIONS. The Lenders' obligations to make their
respective Loans are several and not joint or joint and several. Any Lender
which is not in default in the performance of its obligations may, in its
discretion, assume the obligations of any other Lender which is in default.
SIGNATURES APPEAR ON FOLLOWING PAGES.
<PAGE>
WITNESS our hands and seals as of this 29th day of November, 1999.
WITNESS BORROWER:
CHEMFAB CORPORATION
___________________________ By: /S/ MOOSA E. MOOSA
Moosa E. Moosa, duly authorized
AGENT:
BROWN BROTHERS HARRIMAN & CO.
By: /S/ J. EDWARD HALL
J. Edward Hall, duly authorized
<PAGE>
Lender Counterpart Signature Page to Revolving Credit Agreement
among Chemfab Corporation, as Borrower,
Brown Brothers Harriman & Co., as Agent
and the Lenders
LENDER
FLEET BANK NH
By: /S/ ANDRE P. PELLETIER
Andre P. Pelletier, duly authorized
<PAGE>
Lender Counterpart Signature Page to Revolving Credit Agreement
among Chemfab Corporation, as Borrower,
Brown Brothers Harriman & Co., as Agent
and the Lenders
LENDER
CITIZENS BANK NEW HAMPSHIRE
By: /S/ MARC J. LUBELCZYK
Marc J. Lubelczyk, duly authorized
<PAGE>
Lender Counterpart Signature Page to Revolving Credit Agreement
among Chemfab Corporation, as Borrower,
Brown Brothers Harriman & Co., as Agent
and the Lenders
LENDER
BANK OF NEW HAMPSHIRE
By: /S/JON R. SUNDSTROM
Jon R. Sundstrom, duly authorized
<PAGE>
Borrower Counterpart Signature Page to Revolving Credit Agreement
among Chemfab Corporation, as Borrower,
Brown Brothers Harriman & Co., as Agent
and the Lenders
WITNESS BORROWER
CHEMFAB EUROPE
_______________________ By: /S/ MOOSA E. MOOSA
Moosa E. Moosa, duly authorized
<PAGE>
Borrower Counterpart Signature Page to Revolving Credit Agreement
among Chemfab Corporation, as Borrower,
Brown Brothers Harriman & Co., as Agent
and the Lenders
WITNESS BORROWER
CHEMFAB GERMANY GmbH
_______________________ By: MOOSA E. MOOSA
Moosa E. Moosa, duly authorized
<PAGE>
Borrower Counterpart Signature Page to Revolving Credit Agreement
among Chemfab Corporation, as Borrower,
Brown Brothers Harriman & Co., as Agent
and the Lenders
WITNESS BORROWER
TYGAFLOR LTD.
_______________________ By: MOOSA E. MOOSA
Moosa E. Moosa, duly authorized
