SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15 (d) OF THE SECURITIES
EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): September 14, 1995
------------------
(September 6, 1995)
------------------
Oak Industries Inc.
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 1-4474 36-1569000
- - - - -------------------------- ---------------- -------------------
(State or other juris- (Commission File (IRS Employer
diction of incorporation) Number) Identification No.)
Bay Colony Corporate Center
1000 Winter Street
Waltham, MA 02154
- - - - ----------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 617-890-0400
N/A
- - - - ----------------------------------------------------------------------
(Former name or former address, if changed since last report.)
ITEM 2. ACQUISITION OF ASSETS
On September 6, 1995 Oak Industries Inc. (the "Company"), pursuant to a
Stock Purchase Agreement dated as of August 28, 1995 ( a copy of which is
attached hereto as Exhibit (2)-1 and incorporated herein by reference) (the
"Purchase Agreement"), by and among the Company, Lasertron, Inc., a
Massachusetts corporation ("Lasertron") and certain individuals holding, in
aggregate, all of the outstanding common stock, $0.01 par value (the "Common
Stock") of Lasertron, as further set forth on Exhibit I to the Purchase
Agreement, acquired all of the outstanding stock of Lasertron. In addition,
pursuant to the terms of the Purchase Agreement, the Company assumed all of
Lasertron's outstanding and unexercised stock options to purchase shares of
its Common Stock; upon exercise of such options, option holders shall receive
shares of the Company's common stock, adjusted to take into account the
relative share prices of the Company and Lasertron. In connection with this,
the Company has recorded an estimated obligation of approximately $6 million.
The Company acquired all of the outstanding shares and stock options of
Lasertron for approximately $114 million, including transaction expenses. The
purchase price was financed with (i) the proceeds from a $60 million term loan
issued by Chemical Bank and other lenders pursuant to the provisions of the
Oak Credit Agreement referred to below in Item 5, (ii) proceeds from a portion
of the $40 million revolving credit facility provided for under the Oak Credit
Agreement, and (iii) cash held by the Company.
Lasertron is engaged in the business of supplying optical components used
to construct advanced fiber optic communications networks, including
manufacturing fiber optic modules incorporating semiconductor laser and
detector elements coupled to optical fiber and optical transmitter and
receiver subsystems incorporating these modules. The Company does not
contemplate any change in the use of Lasertron's properties.
ITEM 5. OTHER EVENTS
On August 30, 1995, the Company entered into a Credit Agreement (the "Oak
Credit Agreement") (a copy of which is attached hereto as Exhibit (10)-1 and
incorporated herein by reference) with various lenders and Chemical Bank
("Chemical"), as Agent, and the Company's Connector Holding Company
("Connector") and Gilbert Engineering Co., Inc. subsidiaries, entered into a
Credit Agreement (the "Gilbert Credit Agreement", together with the Oak Credit
Agreement, the "Credit Facilities") with various lenders and Chemical, as
Agent.
The Oak Credit Agreement provides for a $40 million revolving credit
facility, which replaced the Company's previously existing $30 million
revolving credit facility with The First National Bank of Boston, a $60
million "Tranche A" term loan and a $60 million "Tranche B" term loan. The
Tranche A term loan was advanced to the Company on September 6, 1995 in
connection with the closing of the Company's purchase of the capital stock of
Lasertron. The Tranche B term loan is available to fund the Company's
purchase of the shares of the capital stock of Connector not presently owned
by the Company.
The Gilbert Credit Agreement (a copy of which is attached hereto as
Exhibit (10)-2 and incorporated herein by reference), provides for a $18
million revolving credit facility and a $22 million term loan. The proceeds
from the term loan and a portion of the revolving credit facility were used to
refinance existing indebtedness of Gilbert in favor of General Electric
Capital Corporation and Heller Financial, Inc., which debt was incurred
pursuant to the provisions of a Credit Agreement dated December 23, 1992 among
Gilbert, Connector and certain other senior lenders. Also in connection with
the financing, holders of certain 8 percent Senior Subordinated Promissory
Notes issued by Connector in connection with the Company's 1992 acquisition of
Gilbert were repaid in full.
Borrowings under the Credit Facilities bear interest, at the option of
the Company or Gilbert, as the case may be, either (i) at Chemical's prime
rate (or, if higher, at 1/2 percent above the federal funds rate) or (ii) at a
spread over the reserve-adjusted 1,2,3 or 6 month LIBOR rate. The spread is
initially 1 percent and is subject to reduction when certain financial tests
are being met. Borrowings under the Credit Facilities are secured by pledges
of the stock and certain debt securities of certain of the Company's
subsidiaries. In addition, certain of the Company's subsidiaries have
guaranteed the obligations under the Credit Facilities. All loans advanced
pursuant to the Credit Facilities will mature through September 30, 2000.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL
INFORMATION AND EXHIBITS
The following financial statements, pro forma financial information and
exhibits are filed as part of this report.
(a) Financial statements of the business acquired, prepared pursuant to Rule
3.05 of Regulation S-X and provided to Oak Industries Inc. by Lasertron,
Inc.
Item
- Audited consolidated financial statements of Lasertron, Inc. and
Subsidiaries and Independent Auditors' Report
- For the years ended January 31, 1995, 1994 and 1993
- Unaudited consolidated interim financial statements of Lasertron,
Inc. and Subsidiaries
- Condensed Consolidated Balance Sheets - July 31, 1995
- Condensed Consolidated Statements of Income - six months ended
July 31, 1995 and July 31, 1994
- Condensed Consolidated Statement of Changes in Stockholders'
Equity - six months ended July 31, 1995 and July 31, 1994
- Condensed Consolidated Statements of Cash Flows - six months
ended July 31, 1995 and July 31, 1994
(b) Pro forma financial information required pursuant to Article 11 of
Regulation S-X:
Item
- Oak Industries Inc. and Lasertron, Inc. Pro Forma Condensed
Combined Financial Statements (Unaudited)
- Pro Forma Condensed Combined Balance Sheet - June 30, 1995
- Pro Forma Condensed Combined Statement of Operations - year
ended December 31, 1994
- Pro Forma Condensed Combined Statement of Operations - six
months ended June 30, 1995
Notes to Pro Forma Condensed Combined Financial Statements
The unaudited pro forma condensed combined balance sheet as of June 30,
1995 gives effect to the acquisition of Lasertron, Inc. by Oak Industries
Inc. as if the acquisition had occurred on June 30, 1995 and the
unaudited pro forma condensed combined statements of operations for the
year ended December 31, 1994 and six-months ended June 30, 1995 give
effect to the acquisition of Lasertron Inc. by Oak Industries Inc. as if
the acquisition had occurred on January 1, 1994. The pro forma
information is based on historical financial statements of Lasertron,
Inc. and Oak Industries Inc. after giving effect to the proposed
transaction using the purchase method of accounting and the assumptions
and adjustments described in the accompanying notes to the pro forma
financial statements.
The pro forma statements have been prepared by Oak Industries Inc. based
upon historical financial statements provided by Lasertron, Inc. adjusted
from Lasertron, Inc.'s fiscal year ended January 31 to Oak Industries
Inc.'s fiscal year ended December 31.
These pro forma statements may not be indicative of the results that
actually would have occurred if the combination had been in effect on the
date indicated or which may be obtained in the future. The pro forma
financial statements should be read in conjunction with the audited
financial statements of Oak Industries Inc.
(c) Exhibits in accordance with the provision of Item 601 of Regulation S-K:
Exhibit
-------
(2)-1 Stock Purchase Agreement dated as of August 28, 1995 among
Lasertron, Inc., the Stockholders listed on Exhibit I attached
thereto, and Oak Industries Inc. (Schedules and similar
attachments to such Stock Purchase Agreement have been omitted in
accordance with Item 601 of Regulation S-K. The Registrant will
furnish supplementally a copy of any omitted schedule or similar
attachment to the Commission upon request.)
(10)-1 Credit Agreement dated as of August 30, 1995 among Oak Industries
Inc., the Lenders from time to time party thereto and Chemical
Bank, as Administrative Agent, Collateral Agent and Issuing Bank.
(Schedules and similar attachments to such Credit Agreement have
been omitted in accordance with Item 601 of Regulation S-K. The
Registrant will furnish supplementally a copy of any omitted
schedule or similar attachment to the Commission upon request.)
(10)-2 Credit Agreement dated as of August 30, 1995 among Gilbert
Engineering Co., Inc., the Lenders from time to time party
thereto and Chemical Bank, as Administrative Agent, Collateral
Agent and Issuing Bank. (Schedules and similar attachments to
such Credit Agreement have been omitted in accordance with Item
601 of Regulation S-K. The Registrant will furnish
supplementally a copy of any omitted schedule or similar
attachment to the Commission upon request.)
(23)-1 Consent of KPMG Peat Marwick LLP.
LASERTRON, INC. AND SUBSIDIARIES
Consolidated Financial Statements
January 31, 1995 and 1994
(With Independent Auditors' Report Thereon)
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Lasertron, Inc. and Subsidiaries:
We have audited the accompanying consolidated balance sheets of Lasertron,
Inc. and Subsidiaries as of January 31, 1995 and 1994, and the related
consolidated statements of income, stockholders' equity and cash flows for
each of the years in the three-year period ended January 31, 1995. These
consolidated financial statements are the responsibility of the Company's
management. Our responsibility is to express an opinion on these consolidated
financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Lasertron,
Inc. and Subsidiaries as of January 31, 1995 and 1994, and the results of
their operations and their cash flows for each of the years in the three-year
period ended January 31, 1995, in conformity with generally accepted
accounting principles.
KPMG PEAT MARWICK LLP
Boston, Massachusetts
March 22, 1995
LASERTRON, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
January 31, 1995 and 1994
<TABLE>
<CAPTION>
Assets 1995 1994
------ ---------- ----------
<S> <C> <C>
Current assets:
Cash and cash equivalents $ 6,159,334 $ 4,439,994
Trade accounts receivable, less allowances
for doubtful accounts of $300,000 in 1995
and $250,000 in 1994 (note 9) 6,682,954 4,888,010
Inventories (note 3) 5,150,027 5,215,510
Notes receivable - stockholders (note 5) 722,000 722,000
Prepaid expenses and other current assets 386,231 112,176
Refundable income taxes 42,816 -
Deferred income taxes (note 4) 955,615 496,296
----------- -----------
Total current assets 20,098,977 15,873,986
----------- -----------
Property and equipment:
Machinery and equipment 7,371,368 6,614,829
Development equipment 4,858,745 4,825,847
Office equipment and furnishings 1,499,750 1,489,776
Computer equipment 369,459 273,390
Leasehold improvements 226,995 212,615
Construction in progress 834,149 135,558
----------- -----------
15,160,466 13,552,015
Less accumulated depreciation and amortization 11,508,712 10,800,190
----------- -----------
Net property and equipment 3,651,754 2,751,825
----------- -----------
Investment in affiliate (note 12) 2,039,250 1,945,750
----------- -----------
Total assets $25,789,981 $20,571,561
=========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
<TABLE>
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY 1995 1994
------------------------------------ ---------- ----------
<S> <C> <C>
Current liabilities:
Accounts payable $ 3,358,774 $ 2,794,298
Income taxes payable - 261,711
Accrued expenses (note 6) 2,277,061 1,447,513
----------- -----------
Total current liabilities 5,635,835 4,503,522
----------- -----------
Deferred income taxes (note 4) 243,740 111,370
----------- -----------
Commitments and contingencies (notes 10, 12 and 13)
Stockholders' equity:
Common stock, $.01 par value. Authorized 5,000,000
shares; issued and outstanding 1,640,074 shares in
1995 and 1,630,274 shares in 1994 16,401 16,303
Additional paid-in capital 246,269 148,367
Retained earnings 20,023,986 16,226,749
Cumulative translation adjustment (376,250) (434,750)
----------- -----------
Total stockholders' equity 19,910,406 15,956,669
----------- -----------
Total liabilities and stockholders' equity $25,789,981 $20,571,561
=========== ===========
</TABLE>
LASERTRON, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
Years ended January 31, 1995, 1994 and 1993
<TABLE>
<CAPTION>
1995 1994 1993
----------- ----------- -----------
<S> <C> <C> <C>
Net sales (notes 9 and 11) $30,330,614 $21,759,012 $19,453,580
Cost of sales (note 9) 15,909,774 10,883,671 10,976,194
----------- ----------- -----------
Gross profit 14,420,840 10,875,341 8,477,386
----------- ----------- -----------
Sales and marketing 2,358,474 2,007,753 1,903,978
General and administrative expenses 2,885,209 2,391,120 2,283,832
Research and development expenses 3,990,558 3,289,288 2,860,972
----------- ----------- -----------
Total operating expenses 9,234,241 7,688,161 7,048,782
----------- ----------- -----------
Operating income 5,186,599 3,187,180 1,428,604
----------- ----------- -----------
Other income (expense):
Equity in net income of affiliate(note 12) 35,000 800,500 520,250
Interest expense - - (168,321)
Interest income 169,616 101,973 177,579
Other (21,978) (30,689) (3,304)
----------- ----------- -----------
182,638 871,784 526,204
----------- ----------- -----------
Income before income taxes 5,369,237 4,058,964 1,954,808
Income taxes (note 4) 1,572,000 1,043,989 363,829
----------- ----------- -----------
Net income $ 3,797,237 $ 3,014,975 $ 1,590,979
=========== =========== ===========
Per share data:
Net income per share of common stock $2.32 $1.85 $0.98
=========== =========== ===========
Weighted average shares outstanding 1,634,257 1,630,032 1,617,574
=========== =========== ===========
</TABLE>
See accompanying notes to consolidated financial statements.
LASERTRON, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Years ended January 31, 1995, 1994 and 1993
<TABLE>
<CAPTION>
Additional Cumulative Total
Common stock paid-in Retained translation stockholders'
Shares Amount capital earnings adjustment equity
--------- ------- --------- ----------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Balance at January 31, 1992 1,595,074 $15,951 $107,219 $11,620,795 $ (66,250) $11,677,715
Issuance of common stock,
33,750 shares at $.80
per share 33,750 337 26,663 - - 27,000
Cumulative translation
adjustment - - - - (210,250) (210,250)
Net income - - - 1,590,979 - 1,590,979
--------- ------- -------- ----------- --------- -----------
Balance at January 31, 1993 1,628,824 16,288 133,882 13,211,774 (276,500) 13,085,444
Issuance of common stock,
1,450 shares at $10
per share 1,450 15 14,485 - - 14,500
Cumulative translation
adjustment - - - - (158,250) (158,250)
Net income - - - 3,014,975 - 3,014,975
--------- ------- -------- ----------- --------- -----------
Balance at January 31, 1994 1,630,274 16,303 148,367 16,226,749 (434,750) 15,956,669
Issuance of common stock,
9,800 shares at $10
per share 9,800 98 97,902 - - 98,000
Cumulative translation
adjustment - - - - 58,500 58,500
Net income - - - 3,797,237 - 3,797,237
--------- ------- -------- ----------- --------- -----------
Balance at January 31, 1995 1,640,074 $16,401 $246,269 $20,023,986 $(376,250) $19,910,406
========= ======= ======== =========== ========= ===========
</TABLE>
See accompanying notes to consolidated financial statements.
LASERTRON, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Years ended January 31, 1995, 1994 and 1993
<TABLE>
<CAPTION>
1995 1994 1993
---------- ---------- ----------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income $3,797,237 $3,014,975 $1,590,979
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation and amortization 985,314 733,527 601,450
Loss on disposal of equipment 2,311 42,446 9,259
Allowance for doubtful accounts 50,000 120,000 67,183
Equity in net income of affiliate (35,000) (800,500) (520,250)
Deferred income taxes (326,949) 340,849 158,550
Changes in operating assets and liabilities:
Accounts receivable (1,844,944) (1,729,664) (591,167)
Inventories 65,483 (2,146,695) 687,915
Prepaid expenses and other
assets (274,055) 31,689 15,516
Refundable income taxes (42,816) 42,740 547,092
Accounts payable 564,476 2,278,355 24,924
Accrued interest - (129,855) (118,215)
Income taxes payable (261,711) 261,711 -
Accrued expenses 829,548 70,532 (261,239)
Net cash provided by operating ---------- ---------- ----------
activities 3,508,894 2,130,110 2,211,997
---------- ---------- ----------
Cash flows from investing activities:
Purchase of property and equipment (1,899,414) (801,367) (793,880)
Proceeds from disposal of equipment 11,860 9,935 18,300
Investment in affiliate - (345,601) (150,000)
Loans to stockholders - - (722,000)
---------- ---------- ----------
Net cash used in investing activities (1,887,554) (1,137,033) (1,647,580)
---------- ---------- ----------
Cash flows from financing activities:
Proceeds from sale of common stock 98,000 14,500 27,000
Repayment of debt - (996,782) (913,463)
Net cash provided by (used in) financing activities 98,000 (982,282) (886,463)
---------- ---------- ----------
Increase (decrease) in cash and cash equivalents 1,719,340 10,795 (322,046)
Cash and cash equivalents at beginning
of year 4,439,994 4,429,199 4,751,245
---------- ---------- ----------
Cash and cash equivalents at end of year $6,159,334 $4,439,994 $4,429,199
========== ========== ==========
Supplemental disclosures of cash flow
information:
Cash paid during the year for:
Interest $ - $149,518 $286,536
========== ========== ==========
Income taxes $2,200,975 $397,500 $216,000
========== ========== ==========
</TABLE>
See accompanying notes to consolidated financial statements.
LASERTRON, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
January 31, 1995, 1994 and 1993
(1) NATURE OF OPERATIONS
The Company is a worldwide supplier of the optical components used to
construct advanced fiber-optic communication networks. The Company designs,
manufactures, sells and supports a broad range of active semiconductor fiber-
optic components that enable the transmission or amplification of digital and
analog communication signals transported over fiber-optic cable. The
Company's products are fiber-optic modules which incorporate semiconductor
laser and detector elements optically coupled to optical fiber, and
transmitters and receivers incorporating these modules.
(2) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
(a) Principles of Consolidation
The consolidated financial statements include the accounts of Lasertron, Inc.
and its wholly owned subsidiaries, Lasertron Worldwide, Inc. and Lasertron
International Limited (FSC). The Company accounts for its 25 percent
investment in its affiliate, Wuhan Telecommunication Devices Co., under the
equity method.
All significant intercompany balances and transactions have been eliminated in
consolidation.
(b) Revenue Recognition
The Company recognizes revenue from product sales upon shipment to the
customer. Revenues from research and development contracts are recognized on
the percentage of completion method and are netted against research and
development expense. Provisions for estimated losses on incomplete contracts
are made when such losses become determinable.
The Company records reserves for anticipated warranty costs at the time of
shipment based on historical and anticipated rates of cost.
(c) Inventories
Inventories are stated at the lower of cost or market. Cost is determined on
the first-in, first-out (FIFO) method.
(d) Property and Equipment
Property and equipment are stated at cost and are depreciated and amortized
primarily using the straight-line method over the estimated useful lives of
the assets.
Estimated useful lives of property and equipment are as follows:
Machinery and equipment 5 - 7 Years
Development equipment 5 Years
Office equipment and furnishings 5 - 7 Years
Computer equipment 3 Years
Leasehold improvements Life of Lease
Material, labor and overhead costs related to equipment produced in-house are
accumulated in a construction-in-progress account and transferred to the
appropriate property and equipment accounts when each project is completed.
(e) Income Taxes
The Company accounts for income taxes under Statement of Financial Accounting
Standards No. 109, Accounting for Income Taxes (Statement No. 109). Under the
asset and liability method of Statement 109, deferred tax assets and
liabilities are recognized for the future tax consequences attributable to
differences between the financial statement carrying amounts of existing
assets and liabilities and their respective tax bases. Deferred tax assets
and liabilities are measured using enacted tax rates expected to apply to
taxable income in the years in which those temporary differences are expected
to be recovered or settled. The effect on deferred tax assets and liabilities
of a change in tax rates is recognized in income in the period that includes
the enactment date.
Effective February 1, 1993, the Company adopted Statement 109 and the
cumulative effect of that change was not material.
Pursuant to the deferred method under APB Opinion 11, which was applied in
1993 and prior years, deferred income taxes are recognized for income and
expense items that are reported in different years for financial reporting
purposes and income tax purposes using the tax rate applicable for the year of
the calculation. Under the deferred method, deferred taxes were not adjusted
for subsequent changes in tax rates.
(f) Research and Development
Expenditures for research and development are charged to earnings in the year
incurred.
Revenues from research and development contracts are netted against research
and development expenses. Research and development contract revenue
aggregated approximately $776,000, $587,000 and $41,000 in years 1995, 1994
and 1993, respectively.
(g) Earnings Per Share
Earnings per share is computed based on the weighted average number of common
shares outstanding during each period, plus common stock equivalents related
to stock options, if such common stock equivalents cause dilution in earning
per share in excess of 3 percent.
(h) Foreign Currency Translation
The foreign affiliate's financial statements have been translated into U.S.
dollars for purposes of determining the Company's interest in the equity and
earnings of the affiliate. Assets and liabilities have been translated at the
rate prevailing on the affiliate's balance sheet date. Owners' equity is
stated at the historical rate. The statements of operations are translated at
the average rate for the relevant year. Gains and losses arising from such
translation are included as a separate component of stockholders' equity.
(i) Cash Equivalents
The Company considers all liquid investments with an original maturity of
three months or less to be cash equivalents.
(3) INVENTORIES
Inventories consists of the following at January 31:
<TABLE>
<CAPTION>
1995 1994
---------- ----------
<S> <C> <C>
Raw materials $1,110,899 $1,342,611
Work in process 3,428,927 2,783,831
Finished goods 610,201 1,089,068
---------- ----------
$5,150,027 $5,215,510
========== ==========
</TABLE>
(4) INCOME TAXES
As discussed in note 1, the Company adopted Statement 109 as of February 1,
1993. The cumulative effect of this change in accounting for income taxes was
not material. The financial statements for years prior to February 1, 1993
have not been restated to apply the provisions of Statement 109.
Income tax expense consists of:
<TABLE>
<CAPTION>
1995 1994 1993
---------- ---------- ---------
<S> <C> <C> <C>
Current:
Federal $1,723,807 $ 695,762 $201,249
State 175,142 7,378 456
---------- -------- --------
1,898,949 703,140 201,705
---------- -------- --------
Deferred:
Federal (249,298) 212,240 162,124
State (77,651) 128,609 -
---------- ---------- --------
(326,949) 340,849 162,124
---------- ---------- --------
$1,572,000 $1,043,989 $363,829
========== ========== ========
</TABLE>
The difference between actual income tax expense and expected income tax
expense as computed by applying the U.S. federal income tax rate of 34 percent
to income before income taxes and cumulative effect of change in accounting
principle is explained as follows:
<TABLE>
<CAPTION>
1995 1994 1993
--------------------- -------------------- -------------------
percent of percent of percent of
pretax pretax pretax
Amount income Amount income Amount income
---------- ------ ---------- ------ -------- ------
<S> <C> <C> <C> <C> <C> <C>
Expected income tax expense $1,825,541 34.0 $1,380,048 34.0 $664,635 34.0
State taxes, net of federal
income tax benefit 64,344 1.2 86,836 2.7 301 -
Exempt income of foreign sales
corporation, net of tax (240,299) (4.5) (115,742) (3.6) (48,508) (3.4)
Unremitted earnings of foreign
affiliate (11,900) (0.2) (272,170) (6.1) (176,885) (6.8)
Tax-exempt income (39,852) (0.7) (16,169) (0.5) (33,816) (2.3)
Research and experimentation
credit (90,851) (1.7) (56,248) (1.7) (44,007) (3.1)
Other 65,017 1.2 37,434 0.9 2,109 .2
---------- ---- ---------- ---- -------- ----
Income tax expense $1,572,000 29.3 $1,043,989 25.7 $363,829 18.6
========== ==== ========== ==== ======== ====
</TABLE>
U.S. taxes are not provided on undistributed earnings of the Company's foreign
affiliate as they are considered by management to be permanently reinvested.
The cumulative amount of undistributed earnings of the Company's foreign
affiliate for which taxes have not been provided was approximately $1,525,000
at January 31, 1995.
For the year ended January 31, 1993, deferred tax expense results from timing
differences in the recognition of income and expense for income tax and
financial reporting purposes. The differences relate principally to the
timing of deductions for reserves for warranty costs and inventory
obsolescence and the timing of distributions from the Company's discontinued
domestic international sales corporation.
The tax effects of temporary differences that give rise to significant
portions of deferred tax assets and deferred tax liabilities at January 31,
1995 and 1994 are presented below:
<TABLE>
<CAPTION>
1995 1994
--------- --------
<S> <C> <C>
Deferred tax assets - current:
Inventories $405,460 $134,312
Accounts receivable 120,000 95,380
Warranty reserve 320,000 145,037
Accrued expenses 231,605 133,731
State research and development credit
carryforward - 51,813
--------- --------
Total gross deferred tax assets 1,077,065 560,273
--------- --------
Deferred tax liabilities - current:
Prepaid expenses (121,450) (41,882)
Other liabilities - (22,095)
--------- --------
Total current gross deferred tax
liabilities (121,450) (63,977)
--------- --------
Net deferred tax assets - current $955,615 $496,296
========= ========
Deferred tax liability - long-term:
Property and equipment $(243,740) $(111,370)
========= ========
</TABLE>
There was no valuation allowance for deferred tax assets as of January 31,
1995 and 1994.
Based upon the level of historical taxable income and expected taxable income,
management believes that it is more likely than not the Company will realize
the benefits of the net deferred tax assets.
(5) NOTES RECEIVABLE - STOCKHOLDERS
Notes receivable - stockholders at January 31, 1995 and 1994 consist of the
following:
Note receivable from a stockholder with interest rate
adjusted annually on the anniversary date of the note
(6.75 percent at January 31, 1995) due on demand. The
note is secured by various real estate owned by the
stockholder. $650,000
Note receivable from a stockholder bearing no interest,
due May 1995. The note is secured by the stockholder's
shares of the Company's common stock. 72,000
--------
$722,000
========
The $650,000 note receivable was originally due on May 14, 1994; on that date
it was amended to be due on demand.
(6) ACCRUED EXPENSES
Accrued expenses at January 31, 1995 and 1994 consist of the following:
<TABLE>
<CAPTION>
1995 1994
--------- --------
<S> <C> <C>
Provision for warranty $800,000 $326,800
Accrued vacation 375,784 314,402
Accrued payroll 559,289 281,195
Due to affiliate - 218,713
Other 541,988 306,403
---------- ----------
$2,277,061 $1,447,513
========== ==========
</TABLE>
(7) STOCK OPTION PLANS
In February 1982, the Company established the 1982 Incentive Stock Option Plan
and reserved 250,000 shares of its authorized and unissued common stock for
issuance. Incentive stock options expire ten years from the date of grant.
In June 1992, the Company established the 1992 Stock Option Plan and reserved
250,000 shares of its authorized and unissued common stock for issuance.
Stock options issued under this plan expire five to ten years from the date of
grant. Options granted under the plan may be either incentive options or non-
statutory options. The following is a summary of stock option activity for
1995, 1994 and 1993:
<TABLE>
<CAPTION>
Number Option
of shares price range
---------- -----------
<S> <C> <C>
Balance, January 31, 1992 93,640 $80-10.00
Options granted 5,500 10.00
Options canceled and forfeited (9,700) .80-10.00
Options exercised (33,750) .80
-------
Balance, January 31, 1993 55,690 5.00-10.00
Options granted 42,200 10.00
Options canceled and forfeited (27,090) 10.00
-------
Balance, January 31, 1994 70,800 5.00-10.00
Options granted 77,750 20.00-35.00
Options canceled and forfeited (7,500) 10.00
Options exercised (5,000) 10.00
-------
Balance, January 31, 1995 136,050 $10.00-35.00
=======
</TABLE>
As of January 31, 1995, 50,160 of the outstanding options are exercisable at
$10.00-$35.00.
(8) DEFINED CONTRIBUTION PLAN
The Company maintains a defined contribution plan for all eligible employees.
Employer contributions to the Plan are made at the discretion of the Company's
Board of Directors. The Company contributed approximately $347,000, $232,000
and $137,000 to this plan in 1995, 1994 and 1993, respectively.
(9) BUSINESS AND CREDIT CONCENTRATIONS
The Company operates in one industry segment: the development, production and
sale of fiber optic telecommunications components. Sales include export sales
primarily to Europe of approximately $24,053,000, $15,098,000 and $11,954,000
in 1995, 1994 and 1993, respectively.
In 1995, 1994 and 1993, one customer accounted for approximately $14,235,000
(47 percent), $8,147,000 (37 percent) and $2,977,000 (15 percent) of the
Company's sales, respectively. At January 31, 1995 and 1994, the customer
accounted for approximately $2,582,000 (39 percent) and $1,518,000 (31
percent), respectively, of the Company's total accounts receivable.
In 1995, 1994 and 1993, one vendor accounted for approximately $6,787,000 (66
percent), $5,220,000 (75 percent) and $1,552,000 (46 percent) of the Company
purchases, respectively.
(10) LEASES
The Company leases facilities under two lease agreements which expire in March
1996. These leases have been accounted for as operating leases. Rent expense
under these leases for 1995, 1994 and 1993 was $471,000, $467,000 and
$465,000, respectively.
The Company also leases certain equipment under agreements which expire in
March 1997. These leases have been accounted for as operating leases. Rent
expense under these leases for 1995, 1994 and 1993 was $43,000, $70,000 and
$65,000, respectively.
The following is a schedule of future minimum lease payments under operating
leases:
Year ending January 31:
1996 $492,000
1997 95,000
1998 4,000
--------
Total minimum lease payments $591,000
========
(11) RELATED PARTY TRANSACTIONS
The Company sells certain components to its foreign affiliate through United
Resources Co., a company owned by a relative of an officer and major
stockholder of the Company. During 1995, 1994, and 1993 the Company made
sales of approximately $644,000, $831,000 and $347,000, respectively, to
United Resources Co.
Amounts receivable from United Resources Co. at January 31, 1995 and 1994 were
approximately $62,000 and $153,000, respectively.
The Company also sells certain components to its foreign affiliate directly.
The Company made direct sales to its foreign affiliate of approximately
$404,000, $23,000, and $124,000 in 1995, 1994 and 1993, respectively. Amounts
receivable from the foreign affiliate at January 31, 1995 and 1994 were
approximately $197,000 and $0, respectively.
(12) INVESTMENT IN AFFILIATE
The Company's investment in affiliate consists of a 25 percent interest in the
equity of Wuhan Telecommunication Devices Co. ("Wuhan"). Wuhan was
established in Wuhan, the People's Republic of China ("PRC"), on August 4,
1989, as a Sino foreign joint venture limited liability company between Wuhan
Optical Communications Technology Company of China and the Company for an
operational period of 20 years from May 31, 1989. Wuhan Optical
Communications Technology Company of China, which holds a 75 percent equity
interest in Wuhan, is a PRC state owned company under the direct supervision
of the Ministry of Post and Telecommunications, the authority in charge of the
administration and development of the telecommunications industry in the PRC.
The extension of the operational period beyond 20 years is subject to the
approval of the applicable PRC authorities.
Wuhan is engaged in the manufacturing and sale of laser and optical fiber
communication components and systems and development of technology.
The Company is negotiating an agreement to increase its ownership from 25
percent to 50 percent of WTD in exchange for certain technology and cash. The
final agreement will be subject to approval by PRC government authorities.
The Company does not expect the cash portion of the transaction to exceed
$300,000.
Summarized financial information of Wuhan is as follows:
<TABLE>
<CAPTION>
Year ended December 31,
1994 1993 1992
---- ---- ----
<S> <C> <C> <C>
Results of operations:
Sales $3,481 $6,672 $3,770
Operating income 49 3,298 1,994
Net income 140 3,202 2,081
</TABLE>
<TABLE>
<CAPTION>
December 31,
1994 1993
---- ----
<S> <C> <C>
Financial position:
Current assets $ 9,412 $7,360
Noncurrent assets 975 1,060
------- ------
$10,387 $8,420
======= ======
Current liabilities 1,926 500
Noncurrent liabilities 304 593
Owner's equity 8,157 7,327
------- ------
$10,387 $8,420
======= ======
</TABLE>
(13) COMMITMENTS
On August 1, 1994, the Company entered into an agreement with a vendor,
whereby the vendor delivered certain technical information and granted the
Company a non-exclusive right to use such technical information for a period
of twenty years. As consideration for the transfer of the technical
information and the related license granted with respect to the use of such
technical information, the Company agreed to pay the vendor a royalty of
$1,250,000 of which $300,000 was paid as of January 31, 1995. The remaining
balance is payable at a royalty of five percent of the selling price of each
licensed apparatus sold by the Company.
The agreement requires the Company to pay the remaining royalty by August 31,
2000 with minimum annual payments as follows:
Fiscal Year
1996 $300,000
1997 150,000
1998 150,000
1999 150,000
2000 150,000
2001 50,000
--------
$950,000
========
LASERTRON, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEET
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
ASSETS
July 31, 1995
-------------
<S> <C>
Current Assets:
Cash and cash equivalents.............................. $ 7,148
Trade accounts receivable, net......................... 6,622
Inventories............................................ 6,770
Notes receivable - stockholders........................ 722
Prepaid expenses and other current assets.............. 92
Refundable income taxes................................ 149
Deferred income taxes.................................. 956
-------
Total current assets............................... 22,459
Property & Equipment, Net................................ 4,185
Investment in Affiliate.................................. 2,082
Other Assets............................................. 315
-------
Total Assets....................................... $29,041
=======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Accounts payable....................................... $ 5,394
Accrued expenses....................................... 1,931
-------
Total current liabilities.......................... 7,325
-------
Deferred Income Taxes.................................... 244
-------
Stockholders' Equity:
Common stock........................................... 16
Additional paid-in capital............................. 258
Retained earnings...................................... 21,540
Cumulative translation adjustment...................... (342)
-------
Total stockholders' equity......................... 21,472
-------
Total Liabilities and Stockholders' Equity......... $29,041
=======
</TABLE>
LASERTRON, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
-------------------------------
July 31, 1995 July 31, 1994
------------- -------------
<S> <C> <C>
Net sales................................ $15,538 $11,680
Cost of sales............................ (9,197) (6,819)
------- -------
Gross profit........................ 6,341 4,861
------- -------
Sales and marketing expenses............. (1,098) (1,098)
General and administrative expenses...... (1,199) (1,248)
Research and development expenses........ (2,003) (1,758)
------- -------
Total operating expenses............ (4,300) (4,104)
------- -------
Operating income.................... 2,041 757
------- -------
Other income (expense):
Equity in net income of affiliate...... 9 (65)
Interest income........................ 161 67
Other.................................. (18) 5
------- -------
152 7
------- -------
Income before income taxes.......... 2,193 764
Income Taxes............................. (677) (230)
------- -------
Net income.......................... $ 1,516 $ 534
======= =======
</TABLE>
LASERTRON, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CHANGES IN STOCKHOLDERS' EQUITY
SIX MONTHS ENDED JULY 31, 1994 AND
SIX MONTHS ENDED JULY 31, 1995
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Common Stock Additional Cumulative Total
------------------- Paid-in Retained Translation Stockholders'
Shares Amount Capital Earnings Adjustment Equity
--------- ------ ---------- -------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C>
Balance at January 31, 1994...... 1,630,274 $16 $148 $16,227 $(435) $15,956
Net income....................... - - - 534 - 534
Cumulative translation
adjustment.................... - - - 9 9
Other............................ 4,800 - 49 - - 49
--------- --- ---- ------- ----- -------
Balance at July 31, 1994......... 1,635,074 $16 $197 $16,761 $(426) $16,548
========= === ==== ======= ===== =======
Balance at January 31, 1995...... 1,640,074 $16 $246 $20,024 $(376) $19,910
Net income....................... - - - 1,516 - 1,516
Cumulative translation
adjustment.................... - - - - 34 34
Other............................ 1,200 - 12 - - 12
--------- --- ---- ------- ----- -------
Balance at July 31, 1995......... 1,641,274 $16 $258 $21,540 $(342) $21,472
========= === ==== ======= ===== =======
</TABLE>
LASERTRON, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended
July 31,
------------------------
1995 1994
---------- ----------
<S> <C> <C>
Cash Flows from Operating Activities:
Net Income............................... $1,516 $ 534
Adjustments to reconcile net income
to net cash provided by
operating activities:
Depreciation and amortization......... 529 437
Equity in net income of affiliates.... (9) 65
Deferred income taxes................. - (47)
Changes in operating assets
and liabilities...................... 3 (68)
------ ------
Net cash provided by operating activities.. 2,039 921
------ ------
Cash Flows from Investing Activities:
Purchase of property and equipment....... (1,063) (453)
------ ------
Net cash used in investing activities...... (1,063) (453)
------ ------
Cash Flows from Financing Activities:
Proceeds from sale of common stock....... 13 48
------ ------
Net cash provided by financing activities.. 13 48
------ ------
Increase in cash and cash equivalents...... 989 516
Cash and cash equivalents at beginning
of period................................ 6,159 4,440
------ ------
Cash and cash equivalents at end of period. $7,148 $4,956
====== ======
</TABLE>
OAK INDUSTRIES INC.
AND
LASERTRON, INC.
PRO FORMA CONDENSED COMBINED BALANCE SHEET
JUNE 30, 1995
(Dollars in thousands)
(Unaudited)
<TABLE>
<CAPTION>
ASSETS
Oak Pro Forma
Industries Lasertron, Adjustments Pro Forma
Inc. Inc. Increase (Decrease) Combined
---------- ---------- ------------------- ----------
<S> <C> <C> <C> <C>
Current Assets:
Cash and cash equivalents................. $ 39,418 $ 7,788 $(27,238) (a) $ 19,968
Receivables, less reserve................. 38,882 6,533 - 45,415
Inventories............................... 37,317 6,333 2,000 (b) 45,650
Other current assets...................... 14,341 1,770 (546) (b) 15,565
-------- ------- -------- --------
Total current assets................... 129,958 22,424 (25,784) 126,598
Plant & Equipment, Net...................... 39,808 3,937 2,952 (b) 46,697
Deferred Income Taxes....................... 31,750 - - 31,750
Goodwill and Other Intangible Assets, Net... 75,391 - 7,092 (b) 82,483
Investments in affiliates................... 11,600 2,082 7,528 (b) 21,210
Other Assets................................ 6,769 264 - 7,033
-------- ------- -------- --------
Total Assets........................... $295,276 $28,707 $ (8,212) $315,771
======== ======= ======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current Liabilities:
Current portion of long-term debt......... $ 7,249 $ - $ 10,000 (a) $ 17,249
Accounts payable.......................... 11,580 5,226 - 16,806
Accrued liabilities....................... 21,289 2,024 1,000 (a) 26,813
2,500 (b)
-------- ------- -------- --------
Total current liabilities.............. 40,118 7,250 13,500 60,868
Other Liabilities........................... 6,750 244 6,150 (a) 17,367
4,223 (b)
Long-term Debt.............................. 26,327 - 70,000 (a) 96,327
Minority Interest........................... 31,869 - - 31,869
Stockholders' Equity:
Common stock.............................. 175 16 (16) (b) 175
Additional paid-in capital................ 279,425 246 (246) (b) 279,425
Accumulated earnings (deficit)............ (87,866) 21,321 (21,321) (b) (168,738)
(80,872) (b)
Other..................................... (1,522) (370) 370 (b) (1,522)
-------- ------- -------- --------
Total Liabilities and
Stockholders' Equity................... $295,276 $28,707 $ (8,212) $315,771
======== ======= ======== ========
</TABLE>
See accompanying notes to condensed consolidated financial statements
OAK INDUSTRIES INC.
AND
LASERTRON, INC.
PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
YEAR ENDED DECEMBER 31, 1994
(Dollars in thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Oak Pro Forma
Industries Lasertron, Adjustments Pro Forma
Inc. Inc. Increase (Decrease) Combined
---------- ---------- ------------------- ----------
<S> <C> <C> <C> <C>
Net sales................................... $249,004 $29,747 $ - $278,751
Cost of sales............................... (155,638) (15,074) (545) (d) (171,257)
-------- ------- ------- --------
Gross margin................................ 93,366 14,673 (545) 107,494
Selling, general and administrative
expenses.................................. (47,684) (8,726) (986) (d) (57,396)
-------- ------- ------- --------
Operating Income............................ 45,682 5,947 (1,531) 50,098
Interest expense............................ (6,611) - (3,151) (d) (9,762)
Interest income............................. 1,351 159 (1,373) (d) 137
Equity in net income of affiliated
companies................................. 2,304 35 (694) (d) 1,645
Other income................................ 665 - - 665
-------- ------- ------- --------
Income from continuing operations before
income taxes and minority interest........ 43,391 6,141 (6,749) 42,783
Income taxes................................ 10,745 (1,841) 1,852 (d) 10,756
Minority interest in net income of
subsidiaries.............................. (11,690) - (402) (d) (12,092)
-------- ------- ------- --------
Net Income.................................. $ 42,446 $ 4,300 $(5,299) $ 41,447
======== ======= ======= ========
Income per common share
(primary and fully-diluted)............... $ 2.31 $ 2.23
======== ========
Weighted average common shares
outstanding............................... 18,384 18,599
======== ========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
PRO FORMA CONDENSED COMBINED STATEMENT OF OPERATIONS
SIX MONTHS ENDED JUNE 30, 1995
(Dollars in thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Oak Pro Forma
Industries Lasertron, Adjustments Pro Forma
Inc. Inc. Increase (Decrease) Combined
---------- ---------- ------------------- ----------
<S> <C> <C> <C> <C>
Net sales................................... $138,532 $17,238 $ - $155,770
Cost of sales............................... (83,046) (10,059) (273) (d) (93,378)
Gross margin................................ 55,486 7,179 (273) 62,392
Selling, general and administrative
expenses.................................. (25,450) (4,707) (493) (d) (30,650)
-------- ------- ------- --------
Operating Income............................ 30,036 2,472 (766) 31,742
Interest expense............................ (2,599) - (2,828) (d) (5,427)
Interest income............................. 975 160 (876) (d) 259
Equity in net income of affiliated
companies................................. 935 9 (347) (d) 597
Other income................................ 168 - - 168
-------- ------- ------- --------
Income from continuing operations before
income taxes and minority interest........ 29,515 2,641 (4,817) 27,339
Income taxes................................ (2,639) (808) 998 (d) (2,449)
Minority interest in net income of
subsidiaries.............................. (5,338) - (38) (d) (5,376)
-------- ------- ------- --------
Net Income.................................. $ 21,538 $ 1,833 $(3,857) $ 19,514
======== ======= ======= ========
Income per common share
(primary and fully-diluted)............... $ 1.16 $ 1.04
======== ========
Weighted average common shares
outstanding............................... 18,534 18,773
======== ========
</TABLE>
See accompanying notes to condensed consolidated financial statements.
NOTES TO PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
(Dollars in thousands)
(Unaudited)
(a) The following pro forma adjustments reflect Oak Industries Inc.'s ("Oak")
purchase of 100 percent of the outstanding common stock of Lasertron,
Inc. ("Lasertron"), and the consolidation by Oak of this acquisition.
Cash paid by Oak $ 27,238
Long-term debt 80,000
Stock option obligations 6,150
Transaction expenses 1,000
--------
Investment in Lasertron $114,338
========
(b) The following pro forma adjustments are made to reflect estimated fair
value adjustments at June 30, 1995 and to eliminate Oak's investment in
Lasertron.
Lasertron's net assets, as reported:
Common stock $ 16
Additional paid-in capital 246
Retained earnings 21,321
Other (370)
--------
21,213
Fair value adjustments:
Increase carrying amount of inventories 2,000
Decrease deferred tax asset (546)
Increase carrying amount of plant and
equipment 2,952
Increase carrying amount of goodwill
and other intangibles assets 7,092
Adjust accounts payable and accrued
liability accounts (2,500)
Adjust other liabilities (4,223)
Increase investment in affiliate 7,528
Purchased in-process research and
development 80,872
--------
Investment in Lasertron $114,388
========
(c) The pro forma condensed combined balance sheet as of June 30, 1995
reflects the purchased in-process research and development as a charge
directly to accumulated earnings.
(d) The following pro forma adjustments are incorporated in the pro forma
condensed combined statements of operations:
Year Ended Six months Ended
December 31, June 30,
1994 1995
------------ ----------------
[Increase (Decrease) Income]
1. Decrease in interest income resulting
from the reduction of cash and cash
equivalents, based upon average
interest rates for the periods $(1,373) $ (876)
2. Increase in interest expense on new
borrowings at rates ranging from
3.25 percent to 6.50 percent in 1994 and
from 5.87 percent to 6.50 percent in 1995 (3,151) (2,828)
3. Increase in amortization resulting
from adjustments to carrying amounts
of goodwill and other intangible assets (914) (457)
4. Increase in depreciation resulting
from adjustments to carrying amounts
of plant and equipment (617) (309)
5. Decrease in equity in net income of
affiliated companies resulting from
increased amortization resulting from
adjustments to carrying amounts of other
intangible assets (694) (347)
6. Decrease in income taxes resulting
from Oak's net operating loss carry-
forward after taking into effect the
above adjustments 1,852 998
7. Increase in minority interest in net
income of subsidiaries after taking
into effect the above adjustments (402) (38)
-------- --------
$(5,299) $(3,857)
======== ========
(e) Not included in the pro forma condensed combined statements of operations
are three nonrecurring charges. The first is for the purchased in-
process research and development. This charge, of approximately $80,872,
will be expensed in the third quarter of 1995. Of this charge,
approximately $63,323 will be expensed to purchased research and
development above the operating income line while approximately $17,549
will be expensed in the equity in net income of affiliated companies
line. The second charge is to cost of sales resulting from the
adjustment to increase inventories to fair value. This charge, which is
estimated to be $2,000, will flow through cost of sales as the purchased
inventory is assumed to be sold. The third charge, which is estimated to
be $1,610, relates to the early extinguishment of debt at Connector
Holding Company and Gilbert Engineering Co., Inc. and will be reported as
an extraordinary item in the third quarter of 1995.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
OAK INDUSTRIES INC.
Date: September 14, 1995 /S/ THOMAS F. SHEEHAN
Thomas F. Sheehan
Vice President and Controller
(Chief Accounting Officer)
EXECUTION COPY
=============================================================================
STOCK PURCHASE AGREEMENT
among
LASERTRON, INC.,
THE STOCKHOLDERS LISTED ON
EXHIBIT I ATTACHED HERETO,
and
OAK INDUSTRIES INC.
=============================================================================
TABLE OF CONTENTS
1. Purchase and Sale of the Shares................................... 1
1.1. Purchase of the Shares from the Stockholders.............. 1
1.2. Purchase Price for the Securities......................... 2
1.3. Stockholders' Representative.............................. 2
1.4. Closing................................................... 3
2. Representations of the Stockholders............................... 3
3. Representations of the Company.................................... 4
3.1. Organization.............................................. 4
3.2. Capitalization of the Company............................. 5
3.3. Subsidiaries.............................................. 5
3.4. Authorization............................................. 6
3.5. Financial Statements...................................... 7
3.6. Litigation................................................ 7
3.7. Insurance................................................. 8
3.8. Intangible Property....................................... 8
3.9. Properties................................................ 9
3.10. Tax Matters...............................................10
3.11. Contracts and Commitments.................................12
3.12. Compliance with Laws, etc.................................13
3.13. Employee Relations........................................14
3.14. Employee Benefit Plans....................................14
3.15. Absence of Certain Changes or Events......................15
3.16. Banking Facilities, Powers of Attorney, etc...............17
3.17. Conflicts of Interest; Affiliated Transactions............18
3.18. Inventory.................................................18
3.19. Principal Customers and Suppliers.........................18
3.20. Brokers...................................................18
3.21. Hazardous Materials; Environmental Compliance;
Disclosure of Environmental Information...................19
3.22. Product Warranties; Defects; Liability....................20
3.23. Organization of WTD.......................................21
3.24. Investment in WTD.........................................21
3.25. Authorization of WTD......................................21
3.26. WTD Compliance with Laws, etc.............................22
3.27. No Illegal Payments.......................................22
3.28. Disclosure................................................23
4. Representations of the Buyer......................................23
4.1. Organization and Authority................................23
4.2. Authorization.............................................23
4.3. Investment Bankers........................................24
4.4. Investment Representation.................................24
4.5. Fairness Opinion..........................................24
5. Access to Information; Confidentiality; Press Releases, etc.......24
5.1. Access to Management, Properties and Records..............24
5.2. Confidentiality...........................................24
5.3. Press Releases and Public Announcements...................24
6. Certain Pre-Closing Covenants.....................................25
6.1. Covenants of the Company and its Subsidiaries.............25
6.1.1. Conduct of Business............................25
6.1.2. Communications with Customers, Suppliers and
Employees......................................26
6.1.3. Preservation of Organization...................26
6.2. Hart-Scott-Rodino Filing..................................26
6.3. No Solicitation...........................................27
6.4. Reports; Taxes............................................27
7. Certain Other Covenants...........................................28
7.1. Reasonable Efforts to Obtain Satisfaction of
Conditions, etc...........................................28
7.2. Amendment of Schedules....................................28
7.3. Options...................................................29
7.4. Form S-8..................................................30
7.5. Other Obligations.........................................30
7.6. Charter and By-laws.......................................30
8. Conditions to Obligations to Close of the Buyer...................30
8.1. Continued Truth of Representations and Warranties
of Stockholders; Compliance with Covenants and
Obligations by Stockholders...............................30
8.2. Continued Truth of Representations and Warranties
of the Company and its Subsidiaries; Compliance
with Covenants and Obligations of the Company and
its Subsidiaries..........................................30
8.3. Final Schedules...........................................31
8.4. Consent of Third Parties and Governmental Bodies..........31
8.5. Adverse Proceedings.......................................31
8.6. Opinion of Counsel........................................31
8.7. Consent of Optionholders..................................31
8.8. New Employment Agreements.................................31
8.9. Closing Deliveries........................................31
8.10. Repayment of Insider Loans................................32
8.11. Execution and Delivery of Agreement.......................32
8.12. Corporate Proceedings.....................................32
8.13. Antitrust Matters.........................................32
9. Conditions to Obligations to Close of the Company and
the Stockholders..................................................32
9.1. Continued Truth of Representations and Warranties of
the Buyer; Compliance with Covenants and Obligations
of the Buyer..............................................33
9.2. Corporate Proceedings.....................................33
9.3. Consent of Third Parties and Governmental Bodies..........33
9.4. Adverse Proceedings.......................................33
9.5. Opinion of Counsel........................................33
9.6. Final Schedule............................................33
9.7. Antitrust Matters.........................................33
9.8. Closing Deliveries........................................34
10. Indemnification..................................................34
10.1. REPRESENTATIONS, ETC......................................34
10.2. Indemnification of the Buyer and the Company..............34
10.3. Indemnification of the Stockholders.......................36
10.4. Claims for Indemnification................................37
10.5. Defense by Indemnifying Party.............................38
10.6. Definition of Losses......................................38
10.7. Treatment of Indemnification Payments.....................39
10.8. Miscellaneous.............................................39
11. Termination of Agreement; Option to Proceed; Damages.............39
11.1. Termination by Lapse of Time..............................39
11.2. Termination by the Parties................................39
11.3. Availability of Remedies..................................40
11.4. Certain Remedies of the Stockholders......................41
12. Consent To Jurisdiction..........................................41
13. Notices..........................................................41
14. Successors and Assigns...........................................42
15. Entire Agreement; Amendments; Attachments........................43
16. Severability.....................................................43
17. Expenses, etc....................................................43
18. Governing Law....................................................44
19. Section Headings.................................................44
20. Company's Knowledge..............................................44
21. Counterparts.....................................................44
STOCK PURCHASE AGREEMENT
This Agreement (the "Agreement") is made as of the 28th day of August,
1995 by and among Oak Industries Inc., a Delaware corporation (the "Buyer"),
Lasertron, Inc., a Massachusetts corporation (the "Company"), each of the
persons and entities listed as Majority Stockholders on the signature pages
attached hereto (collectively, the "Majority Stockholders"), and each of the
other persons and entities listed on the signature pages attached hereto (each
of the Majority Stockholders and each such other person, individually, a
"Stockholder" and collectively, the "Stockholders"), who collectively own all
of the issued and outstanding capital stock of the Company.
Preliminary Statement
1. Each of the Stockholders respectively owns or will own at the Closing
(as defined below) the number of issued and outstanding shares of Common
Stock, $.01 par value per share ("Common Stock") of the Company (the "Shares")
and options to purchase the number of shares of Common Stock, in each case as
set forth opposite such Stockholder's name on Exhibit I hereto, as amended on
the Closing Date.
2. The Buyer desires to purchase, and the Stockholders desire to sell,
all of the Shares and the Buyer desires to assume all of the options of the
Company to purchase shares of Common Stock outstanding at the Closing (the
"Options"), as provided in Section 7.3 hereof.
Agreement
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereby agree as follows:
1. Purchase and Sale of the Shares
1.1 Purchase of the Shares from the Stockholders. Subject to and upon
the terms and conditions of this Agreement, and on the basis of the
representations, warranties, covenants, and agreements herein contained, at
the closing of the transactions contemplated by this Agreement (the
"Closing"), each Stockholder shall sell, transfer, convey or assign and
deliver to the Buyer, and the Buyer shall purchase, acquire and accept from
each Stockholder, the Shares to be sold by such Stockholder to Buyer as set
forth opposite such Stockholder's name on Exhibit I attached hereto, free and
clear of any and all liens, claims, encumbrances or rights of any third party.
At the Closing, each such Stockholder shall deliver to the Buyer certificates
evidencing the Shares being transferred by such Stockholder to Buyer duly
endorsed in blank or with stock powers or other appropriate instruments of
transfer duly executed by such Stockholder, with signatures guaranteed.
1.2 Purchase Price for the Securities. The aggregate purchase price
(the "Purchase Price") to be paid by the Buyer for the Shares at the Closing
shall consist of $65.31854 per share, but in no event to exceed $112,000,000
in the aggregate, to be paid in cash on the Closing Date, from the Buyer by
certified or bank check delivered at Closing or by wire transfer of
immediately available funds to not more than ten accounts, as designated by
the Stockholders' Representative (as defined in Section 1.3(a) hereof), or any
combination of the foregoing, in the respective amounts set forth under "Cash
Purchase Price" in Exhibit II attached hereto.
1.3 Stockholders' Representative.
(a) In order to administer efficiently the waiver of any condition
to the obligations of the Stockholders to consummate the transactions
contemplated hereby, the defense and/or settlement of any claims for which the
Stockholders may be required to indemnify the Buyer or the Company pursuant to
Section 10 hereof, and any other actions required to be taken by any
Stockholder in connection herewith other than the New Employment Agreements
(as defined in Section 8.8 hereof), the Stockholders hereby designate and
appoint Kenneth W. Nill as their representative and attorney-in-fact (in such
capacity, the "Stockholders' Representative").
(b) By their execution of this Agreement, the Stockholders agree
that:
(i) the Buyer and the Company shall be able to rely
conclusively without further inquiry on the instructions and
decisions of the Stockholders' Representative acting in such
capacity as to the settlement of any claims for indemnification by
the Buyer or the Company pursuant to Section 10 hereof and as to
any other action taken by the Stockholders' Representative
hereunder, and no party hereunder shall have any cause of action
against the Buyer or the Company for any action taken by the Buyer
or the Company in reliance upon the instructions or decisions of
the Stockholders' Representative;
(ii) all actions, decisions and instructions of the
Stockholders' Representative shall be conclusive and binding upon
all of the Stockholders; and
(iii) as among the Stockholders and the Stockholders'
Representative, the Stockholders' Representative shall not be
entitled to take any action without obtaining the applicable
required consents under a separate agreement to be entered into
among the Stockholders prior to the Closing. The Stockholders
covenant for the benefit of the Buyer that no action by the
Stockholders' Representative in connection herewith shall require
the consent of Stockholders holding more than two thirds (66 2/3
percent)
of the aggregate Payment Percentages (as defined in Section
10.2(d)) of all Stockholders.
1.4 Closing. The Closing shall take place at the offices of Ropes and
Gray, One International Place, Boston, MA at 10:00 a.m., local time, on
September 15, 1995 or, if the conditions to closing provided herein shall not
have been satisfied at such date, at such later time or date prior to
termination as the parties may agree (the "Closing Date").
2. Representations of the Stockholders.
Each Stockholder severally, for itself only and not jointly, represents
and warrants to the Buyer that as of the date hereof:
(a) Such Stockholder is the sole record owner of, or will be at
the Closing the sole record owner of, and has, or will have at the Closing,
good and marketable title to the Shares which are to be transferred by such
Stockholder pursuant hereto, and, in the case such Stockholder holds Options,
to such Options, in each case free and clear of any and all covenants,
conditions, restrictions, voting trust arrangements, liens, charges,
encumbrances, options and claims or rights whatsoever, except as set forth on
Schedule 3.2 hereto. There are no agreements restricting the transfer of, or
affecting the rights of such Stockholder with respect to his, her or its
Shares or Options, except as set forth on Schedule 3.2 hereto. Exhibit I
attached hereto sets forth a true and correct list of all Common Stock
outstanding as of the date hereof and all Shares owned by such Stockholder as
of the date hereof, and Exhibit I as amended as of the Closing Date sets forth
a true and correct list of all Shares which will be owned by such Stockholder
as of the Closing.
(b) Such Stockholder has the full right, power and authority to
enter into this Agreement, to carry out his or its obligations hereunder and
to transfer, convey and sell to the Buyer at the Closing the Shares to be sold
by such Stockholder hereunder. Upon transfer of such Shares by such
Stockholder to the Buyer hereunder, assuming that the Buyer has received no
notice of any adverse claim with respect thereto, the Buyer will acquire good
and marketable title to such Shares, free and clear of any and all covenants,
conditions, restrictions, voting trust arrangements, liens, charges,
encumbrances, options and claims or rights whatsoever other than covenants,
conditions, restrictions, voting trust arrangements, liens, charges,
encumbrances, options, claims or rights granted or imposed by or arising from
Buyer. In the case of each Stockholder that is a trust or other entity, the
execution and delivery by such Stockholder of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all requisite action and will not violate the provisions of its trust
agreements or similar documents.
(c) Neither the execution nor the delivery of this Agreement by
such Stockholder, nor the consummation by such Stockholder of the transactions
contemplated hereby, with or without the giving of notice or the passage of
time or both, (a) violates the provisions of any law, rule or regulation
applicable to such Stockholder (assuming compliance with the requirements of
the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "H-S-R Act");
(b) violates any provisions of the Articles of Organization or By-laws of the
Company; (c) violates any judgment, decree, order or award of any court,
governmental body or arbitrator applicable to such Stockholder; or (d)
conflicts with or results in the breach or termination of any term or
provision of, or constitutes a default under, or causes any acceleration
under, or causes the imposition of any lien, charge or encumbrance upon the
properties or assets of such Stockholder pursuant to any indenture, deed of
trust, or other instrument, contract or agreement to which such Stockholder is
a party or by which such Stockholder is bound, other than such of the
foregoing as do not and will not result in any liability on the part of, or
any other adverse effect on, the Buyer or the Company and its Subsidiaries.
(d) No broker or finder has acted for such Stockholder in
connection with this Agreement or the transactions contemplated hereby, and no
broker or finder is entitled to any brokerage or finder's fee or other
commissions in respect of such transactions based upon agreements,
arrangements or understandings made by or on behalf of such Stockholder.
(e) This Agreement has been duly executed by such Stockholder.
Assuming the due authorization, execution and delivery hereof and thereof by
each other party hereto and thereto, this Agreement and all other agreements
and obligations entered into and undertaken in connection with the
transactions contemplated hereby to which such Stockholder is a party
constitute the valid and legally binding obligations of such Stockholder,
enforceable against such Stockholder in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws affecting the rights of
creditors generally.
(f) There is no action, suit, proceeding or, to the knowledge of
such Stockholder, investigation to which such Stockholder is a party pending,
or, to such Stockholder's knowledge, threatened, which questions or challenges
the validity of this Agreement or any action taken or to be taken by such
Stockholder pursuant to this Agreement or in connection with the transactions
contemplated hereby.
3. Representations of the Company.
The Company represents and warrants to the Buyer, to the Company's
knowledge (as defined in Section 20 hereof) (except that no knowledge
qualifier shall be applicable to the representations and warranties contained
in Sections 3.2, 3.10 and 3.21), that as of the date hereof:
3.1 Organization. The Company is a corporation duly organized, validly
existing and in good standing under the laws of The Commonwealth of
Massachusetts, and has all requisite corporate power and authority to own its
assets and properties, to carry on its business as now being conducted, to
execute and deliver this Agreement and the New Employment Agreements, and to
consummate the transactions contemplated hereby and thereby to be carried out
by it. The Company is duly qualified to do business and in good standing in
all jurisdictions where failure to be so qualified would have a material
adverse effect on the business, operations or financial condition of the
Company and its Subsidiaries, considered as a whole (a "Material Adverse
Effect"). Copies of the Articles of Organization and By-laws of the Company,
as amended to date, have been previously delivered to the Buyer, are complete
and correct, and no amendments have been made thereto or have been authorized
since the date of such delivery.
3.2 Capitalization of the Company. The Company's authorized capital
stock consists of 5,000,000 shares of Common Stock, $.01 par value per share,
of which 1,641,274 shares are issued and outstanding as of the date hereof and
are held of record as of the date hereof by the Stockholders in the amounts
set forth on Exhibit I. All such issued and outstanding shares are, and as of
the Closing all of such shares and all shares hereafter issued upon the
exercise of vested options will be, duly and validly issued, fully paid and
non-assessable, and held of record by the Stockholders as set forth on Exhibit
I, as amended as of the Closing Date. No shares of capital stock of the
Company are held in treasury. Except as set forth on Schedule 3.2, there are
no agreements to which the Company is party or of which it is otherwise aware
restricting the transfer of the Shares, or affecting the rights of any holder
of the Shares with respect to any such transfer. There are no preemptive
rights on the part of any holder of any securities of the Company. Except for
the Options and the vested options to be exercised prior to the Closing to
purchase a portion of the Shares, there are not outstanding (i) any options,
warrants, subscription agreements, commitments, conversion or other rights to
obligate the Company to issue or sell any capital stock or other security of
the Company; (ii) any securities convertible into or exchangeable for shares
of such stock; or (iii) any other agreements or commitments of any kind for
the issuance of additional shares of capital stock or options, warrants or
other securities of the Company.
3.3 Subsidiaries. The Company has no direct or indirect Subsidiaries
other than Lasertron Worldwide, Inc., Lasertron International, Ltd. and
Lasertron Shanghai Co., Ltd. (collectively, the "Subsidiaries"). Except as
set forth on Schedule 3.3, each of the Subsidiaries is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization, and has all requisite corporate power and authority to own its
assets and properties, and to carry on its business as now being conducted.
Each of the Subsidiaries is duly qualified to do business and in good standing
in all jurisdictions where failure to be so qualified would have a Material
Adverse Effect. Copies of the charters and By-laws and other organizational
documents of each of the Subsidiaries, as amended to date, have been
previously delivered to the Buyer, are complete and correct, and no amendments
have been made thereto or have been authorized since the date of such
delivery. The Company owns beneficially and of record all outstanding shares
of capital stock of or other equity interest in each of the Subsidiaries.
Except for its joint venture interest in Wuhan Telecommunication Devices Co.
("WTD"), and as set forth on Schedule 3.3, the Company does not own or hold of
record or beneficially, either directly or indirectly (i) any shares of any
class in the capital of any other corporation or (ii) any other proprietary
interest in any other association, trust, partnership, joint venture or other
entity, or business enterprise or have any agreement to acquire any capital
stock or other proprietary interest, other than in each case its shares in the
Subsidiaries referred to above. "Subsidiary" shall mean any corporation,
partnership, joint venture or other entity in which the Company or any of the
Subsidiaries has, directly or indirectly, an equity interest (either
beneficially or in terms of voting power) representing more than 50 percent of
the
capital stock thereof or other equity interests therein.
3.4 Authorization. The execution and delivery by the Company of this
Agreement and the New Employment Agreements, and the consummation by the
Company of all transactions contemplated hereunder and thereunder to be
carried out by the Company have been duly authorized by all requisite
corporate action. This Agreement has been duly executed by the Company.
Assuming the due authorization, execution and delivery hereof and thereof by
each other party hereto and thereto, this Agreement constitutes, and the New
Employment Agreements will constitute as of the Closing Date, the valid and
legally binding obligations of the Company enforceable against it in
accordance with their respective terms, subject only to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
rights of creditors generally. The execution, delivery and performance by the
Company of this Agreement and the New Employment Agreements, and the
consummation by the Company of the transactions contemplated hereby and
thereby to be carried out by it, do not and will not, with or without the
giving of notice or the passage of time or both, (a) violate the provisions of
any law, rule or regulation applicable to the Company or the Subsidiaries
(assuming compliance with the requirements of the H-S-R Act); (b) violate the
provisions of the charter or By-laws or other organizational documents of the
Company or any Subsidiary; (c) violate any judgment, decree, order or award of
any court, governmental body or arbitrator applicable to the Company or any
Subsidiary; or (d) conflict with or result in the breach or termination of any
term or provision of, or constitute a default under, or cause any acceleration
under, or cause the creation of any lien, charge or encumbrance upon the
properties or assets of the Company or any Subsidiary pursuant to, any
indenture, mortgage, deed of trust or other material instrument, contract or
agreement to which the Company or any Subsidiary is a party or by which the
Company or the Subsidiaries or any of their properties is or may be bound;
other than such of the foregoing as do not and will not have a Material
Adverse Effect. Schedule 3.4 attached hereto sets forth a true, correct and
complete list of all consents, approvals and notifications of any governmental
authority or other third parties (including without limitation parties to any
agreement or lease) that are required in connection with the consummation by
the Company of the transactions contemplated by this Agreement in order for
the immediately preceding sentence to be true.
3.5 Financial Statements.
(a) The Company has previously delivered to the Buyer copies of
the audited consolidated balance sheets of the Company and its Subsidiaries as
of January 31, 1994 and 1995 (the "Audited Balance Sheets") and the related
consolidated statements of income, stockholders' equity, and cash flows of the
Company and its Subsidiaries for the fiscal years ended January 31, 1993, 1994
and 1995 (collectively, the "Audited Financial Statements"). The Audited
Financial Statements have been prepared in accordance with generally accepted
accounting principles applied consistently throughout the periods involved
(except as disclosed in the footnotes thereto) and have been certified by the
Company's auditors.
(b) The Audited Financial Statements present fairly, in all
material respects, the financial position, results of operations and cash
flows of the Company and its Subsidiaries at the dates and for the periods
indicated.
(c) The Company has previously delivered to the Buyer copies of
the unaudited consolidated balance sheet of the Company and its Subsidiaries
as of July 29, 1995 (the "Unaudited Balance Sheet") and the related statement
of income of the Company and its Subsidiaries for the six month period then
ended (together with the Unaudited Balance Sheet, collectively, the "Unaudited
Financial Statements"). The Unaudited Financial Statements have been prepared
in accordance with generally accepted accounting principles (except with
respect to financial information relating to WTD included therein), applied
consistently with those employed in the Audited Financial Statements, and
except as set forth on Schedule 3.5(a), present fairly, in all material
respects, the financial position and results of operations of the Company and
its Subsidiaries as of the date and for the period indicated, subject to (i)
an absence of footnotes, and (ii) normal, recurring audit adjustments. Except
to the extent set forth on the Unaudited Balance Sheet and except as set forth
on Schedule 3.5(a), as of July 29, 1995 (the "Balance Sheet Date"), neither
the Company nor any of its Subsidiaries has incurred any liabilities or
obligations of a type required to be disclosed or reflected on financial
statements (including the notes thereto) in accordance with generally accepted
accounting principles. Since June 30, 1995, except as set forth on Schedule
3.5(b), WTD has not incurred any liability or obligation which involves
payments or other consideration in excess of $100,000.
3.6 Litigation. Except for the matters described on Schedules 3.6 and
3.21 attached hereto, (a) there is no claim, dispute, action, suit or
administrative, arbitration or other proceeding to which the Company or any
Subsidiary or WTD is a party (either as a plaintiff or defendant) pending or
threatened, against or affecting the Company, any Subsidiary or WTD or any of
their assets, before any court or governmental agency, authority, body or
arbitrator, (b) neither the Company, any Subsidiary nor WTD, nor any officer,
director or employee of any of the foregoing, has been permanently or
temporarily enjoined by any order, judgment or decree of any court or any
governmental agency, authority or body from engaging in or continuing any
conduct or practice in connection with the business, assets, or properties of
the Company, any Subsidiary or WTD and (c) there is not in existence any
order, judgment or decree of any court, tribunal or agency enjoining or
requiring the Company or any Subsidiary or WTD to take any further action of
any kind with respect to its business, assets or properties.
3.7 Insurance. Schedule 3.7 attached hereto sets forth a true, correct
and complete list of all fire, theft, casualty, general liability, workers'
compensation, business interruption, environmental impairment, product
liability, automobile and other insurance policies maintained by the Company
and its Subsidiaries, and all life insurance policies maintained on the lives
of any of their employees (collectively, the "Insurance Policies"). All
premiums due on the Insurance Policies or renewals thereof have been paid in
full, other than premiums billed as due upon receipt that were received within
the preceding thirty days. The Company's workers' compensation insurance
complies in all material respects with all applicable statutory and regulatory
requirements relating thereto. The Company has not received any written
notices of any pending termination with respect to any of such policies.
Specified in Schedule 3.7 is a true and complete listing of all claims made
under its Insurance Policies in excess of $50,000, and the dispositions
thereof, for the period from January 1, 1994 to the date hereof.
3.8 Intangible Property.
(a) Schedule 3.8 attached hereto sets forth a true, correct and
complete list of (i) all United States and foreign registered and unregistered
trademarks, service marks and trade names, and registrations and pending
applications for registration therefor filed by or on behalf of the Company or
any of the Subsidiaries; (ii) all United States and foreign patents issued to
the Company or any of the Subsidiaries and all pending patent applications
filed by or on behalf of the Company or any of the Subsidiaries throughout the
world; (iii) all United States and foreign copyright registrations, including
copyright registrations for printed matter, databases, software and source
codes, issued to the Company or any of the Subsidiaries and all pending
applications for United States or foreign copyright registrations filed by or
on behalf of the Company or any of the Subsidiaries; (iv) all existing license
agreements or arrangements to which the Company or any of the Subsidiaries is
a party, whether as licensor or licensee or otherwise, with respect to any
trademark, service mark or trade name, or any registration or application
thereof, that is used by the Company or any of the Subsidiaries; and (v) all
existing license agreements or arrangements to which the Company or any of the
Subsidiaries is a party, whether as licensor or licensee or otherwise, with
respect to any patent or copyright, or any registration or application
therefor, which is used by the Company or any of the Subsidiaries (the
foregoing items described in clauses (i) through (iii), together with the
Company's rights to the extent provided under the license agreements and
arrangements described in clauses (iv) and (v), are referred to herein
collectively as the "Intangible Property"). Each of the items of Intangible
Property described in clauses (i), (ii) and (iii) of the preceding sentence is
owned by the Company and the Subsidiaries, free and clear of all liens,
security interests, licenses, charges, encumbrances, equities or other claims,
except as provided by the terms of the license agreements and arrangements
described in clauses (iv) and (v). Except as described in Schedule 3.8, there
are no material royalties, honoraria, fees or other payments payable by the
Company or any Subsidiary to any person with respect to any of the Intangible
Property.
(b) The use by the Company and its Subsidiaries of the Intangible
Property in their operations does not involve infringement or claimed
infringement of any patent, trademark, service mark, trade name, copyright,
license or similar right, except as set forth on Schedule 3.8 and for such
infringement or claimed infringement which has not had and would not
reasonably be expected to have a Material Adverse Effect. Except as described
on Schedule 3.8, the Company and each of its Subsidiaries owns or has the
right to use, free and clear of any claims or rights of others, all trade
secrets, unpatented technology, customer lists, manufacturing processes, know-
how and similar rights sufficient for and used in the manufacture or marketing
of all products either being sold, manufactured or licensed, and all products
under development by them whose specifications have been determined by the
Company as of the date of this Agreement and are expected to be shipped by
October 31, 1996. Neither the Company nor any Subsidiary is in any way making
any unlawful or wrongful use of any confidential information, copyrighted
materials, know-how or trade secrets of any third party, including, without
limitation, any former employer of any present employee of the Company or any
Subsidiary.
3.9 Properties.
(a) The Company and its Subsidiaries hold the leasehold estate
under and interest in each lease of real property to which they are a party,
free and clear of any liens, charges, encumbrances, pledges, security
interests and similar charges except for (i) those securing taxes,
assessments, governmental charges or levies, or the claims of materialmen,
carriers, landlords and like persons, none of which are currently due and
payable, and (ii) restrictions on use contained in such leases that do not
restrict the property subject thereto from being used as it is currently used.
The Company and its Subsidiaries have good title to all of the material assets
reflected on the Unaudited Balance Sheet and all material assets purchased or
otherwise acquired by them after the Balance Sheet Date, in each case free and
clear of any liens, charges, encumbrances, pledges, mortgages, conditional
sales agreements, security interests or other charges. All of the property
and equipment reflected on the Unaudited Balance Sheet has been maintained in
accordance with normal industry practice, is in a sufficient condition for the
purposes for which it is presently used and is presently intended to be used.
Schedule 3.11 attached hereto sets forth a true, correct and complete list as
of the date hereof of all leases of real property and all leases of material
personal property, identifying separately each ground lease, to which or by
which the Company or any Subsidiary is a party or is bound (collectively, the
"Leases"). Neither the Company nor any other party to the Leases is in breach
or default, and no event has occurred which, with notice or lapse of time,
would constitute a breach or default or permit notification, modification or
acceleration thereunder.
(b) Neither the Company nor any Subsidiary currently owns, or has
been the owner of since January 1, 1980, any real property or options to
purchase real property, nor is the Company or any Subsidiary a party to any
agreement for the purchase of real property.
3.10 Tax Matters.
(a) For purposes of this Agreement, "Tax" means any federal,
state, local or foreign income, gross receipts, license, payroll, employment,
excise, severance, stamp, occupation, premium, windfall profits, environmental
(including without limitation Taxes under Code Sec. 59A), customs duties,
capital stock, franchise, profits, withholding, social security (or similar),
unemployment, disability, real property, personal property, sales, use,
transfer, registration, value added, alternative or add-on minimum, estimated,
or other tax of any kind whatsoever, including without limitation any
interest, penalty, or addition thereto, whether disputed or not, in any such
case imposed by a taxing authority.
(b) For purposes of this Agreement, "Tax Return" means any return,
declaration, report, claim for refund, or information return or statement
supplied to a taxing authority or required to be filed regarding Taxes,
including without limitation any schedule or attachment thereto, and any
amendment thereof.
(c) Each of the Company and its Subsidiaries has duly filed,
within the times and in the manner prescribed by law, all Tax Returns that it
was required to file. All such Tax Returns were correct and complete in all
material respects as of the date filed or subsequently amended. All Taxes due
and payable by any of the Company and its Subsidiaries (whether or not shown
on any Tax Return) have been paid when due, except for Taxes that are being
contested in good faith by appropriate proceedings (all of which are described
on Schedule 3.10) and for which adequate reserves are reflected on the
Unaudited Balance Sheet. Except as set forth in Schedule 3.10 and for
extensions effected as a result of the filings listed on such Schedule, none
of the Company and its Subsidiaries currently is the beneficiary of any
extension of time within which to file any Tax Return. No claim or inquiry
with respect to any material amount of Taxes has ever been made by an
authority in a jurisdiction where any of the Company and its Subsidiaries did
not file Tax Returns that it is or may be subject to any Tax by that
jurisdiction for any period ending on or before the Closing Date. There are
no liens or other security interests on any of the assets of any of the
Company and its Subsidiaries that arose in connection with any failure (or
alleged failure) to pay any Tax.
(d) Except as set forth in Schedule 3.10, taxes of the Company and
its Subsidiaries attributable to Tax periods or portions thereof ending on or
prior to the Balance Sheet Date that have not yet been paid have in the
aggregate been adequately reflected as a liability on the books of the Company
and its Subsidiaries in accordance with generally accepted accounting
principles consistently applied.
(e) Each of the Company and its Subsidiaries has withheld and paid
all Taxes required to have been withheld and paid in connection with payments
to foreign persons, sales and use Tax obligations with respect to any and all
states, and amounts paid or owing to any employee, independent contractor,
creditor, stockholder or other person.
(f) Schedule 3.10(f) attached hereto lists all federal and state
income Tax Returns filed with respect to any of the Company and its then
consolidated Subsidiaries for Tax periods ended on or after January 31, 1990,
indicates those Tax Returns that have been audited, and indicates those Tax
Returns that currently are the subject of audit. Schedule 3.10(f) also sets
forth all unpaid deficiencies of Tax that have been asserted for all periods
up to and including the date hereof, except for any Tax as to which the
applicable statute of limitations has expired.
(g) There are no outstanding agreements or waivers extending the
statute of limitations applicable to any Tax Return in respect of the Company
or any of its Subsidiaries for any period.
(h) The Company has delivered to the Buyer correct and complete
copies of all United States federal income Tax Returns, examination reports,
and statements of deficiencies assessed against, proposed in writing to be
assessed against, or agreed to by any of the Company and its Subsidiaries for
all Tax periods ending on or after January 31, 1990.
(i) None of the Company and its Subsidiaries has filed a consent
under Sec. 341(f) of the Internal Revenue Code of 1986 and the rules and
regulations thereunder in each case as in effect from time to time (the
"Code") concerning collapsible corporations. None of the Company and its
Subsidiaries has made any payments, is obligated to make any payments, or is a
party to any agreement that could obligate it to make any payments, that will
be an "excess parachute payment" under Sec. 280G of the Code. None of the
Company and its Subsidiaries has been a United States real property holding
corporation within the meaning of Sec. 897(c)(2) of the Code during the
applicable period specified in Sec. 897(c)(1)(A)(ii) of the Code. None of the
Company and its Subsidiaries has been a passive foreign investment company as
defined in Sec. 1291-1297 of the Code. Each of the Company and its
Subsidiaries has disclosed on its federal income Tax Returns all positions
taken therein for which there is no substantial authority and that could give
rise to a substantial understatement of federal income Tax within the meaning
of Sec. 6662 of the Code. None of the Company and its Subsidiaries is a party
to any Tax allocation or sharing agreement, other than agreements to "gross
up" relocation expenses of employees. None of the Company and its
Subsidiaries has any liability for any Taxes of any person (other than any of
the Company and its Subsidiaries) under Treas. Reg. Sec. 1.1502-6 (or any
similar provision of state, local, or foreign law), as a transferee or
successor, by contract, or otherwise.
3.11 Contracts and Commitments. Schedule 3.11 attached hereto contains
a true, complete and correct list of the following contracts and agreements
(collectively, the "Contracts"):
(a) all loan agreements, promissory notes, indentures, mortgages,
guaranties, security agreements, pledge agreements, deeds of trust,
indemnification arrangements and other agreements relating to the borrowing of
money or extension of credit to which the Company or any Subsidiary is a party
or by which the Company or any Subsidiary or any of their properties is bound,
other than purchase orders and sales orders entered into in the ordinary
course of business;
(b) all collective bargaining plans or agreements, employment and
consulting agreements, executive compensation plans, bonus plans, deferred
compensation agreements, pension plans, retirement plans, employee stock
option or stock purchase plans and group life, health and accident insurance
and other employee benefit or welfare plans, agreements, arrangements or
commitments (including without limitation those relating to profit sharing,
collective bargaining, severance benefits and the like, or any contract or
agreement with any labor union, or any similar arrangement providing benefits
to any current or former director, officer, employee or consultant of the
Company or any Subsidiary) to which the Company or any Subsidiary is a party
or by which the Company or any Subsidiary or any of their properties is bound;
(c) all agency, distributor, sales representative, franchise or
similar agreements to which the Company or any Subsidiary is a party or by
which the Company or any Subsidiary or any of their properties is bound;
(d) all contracts, agreements or other arrangements imposing a
non-competition or non-solicitation obligation on the Company or any
Subsidiary;
(e) all agreements referred to as being listed on Schedule 3.11 in
Section 3.9 or 3.14;
(f) all agreements or arrangements for the purchase or sale of any
assets in excess of $100,000 in the aggregate for any single item or group of
related items other than purchase orders and sales orders entered into in the
ordinary course of business to which the Company or any Subsidiary is party or
by which the Company or any Subsidiary or any of their properties is bound;
(g) all material agreements, contracts or commitments with the
United States Government or any agency or instrumentality thereof to which the
Company or any Subsidiary is party or by which the Company or any Subsidiary
or any of their properties is bound;
(h) all license agreements or agreements otherwise relating to the
Intangible Property listed on Schedule 3.8;
(i) all agreements with affiliates listed on Schedule 3.17;
(j) other than the Insurance Policies, all contracts, agreements,
commitments or other understandings or arrangements to which the Company or
any Subsidiary is a party or by which any of their assets or properties is
bound which involves payments or other consideration of more than $100,000 in
the case of any single item or group of related items, other than (i) items
referred to above and (ii) purchase orders and sales orders entered into in
the ordinary course of business; and
(k) any commitment to enter into any of the above.
Copies of all written contracts, commitments, plans, agreements or licenses
listed in Schedule 3.11, including without limitation all amendments, waivers
or other modifications thereto have been provided to Buyer prior to the
execution of this Agreement and are true, correct and complete. Except for
the matters described in Schedule 3.11 and assuming the due authorization,
execution and delivery thereof by each other party thereto, each of the
Contracts, as applicable, is binding and enforceable in accordance with its
terms (except to the extent that enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to creditors'
rights generally or to the extent that equitable remedies may not be
available) and is in full force or effect without any material default
thereunder by the Company or any Subsidiary, as the case may be, or by any
other party thereto having occurred and not cured or waived (a "default" being
defined for purposes hereof as an actual default or any set of facts which
would, upon receipt of notice or passage of time, constitute a default). Set
forth on Schedule 3.11 is a description of all waivers currently in effect
under any Contract which waivers are, individually or in the aggregate,
material to the business, operations, assets or financial condition of the
Company and its Subsidiaries considered as a whole.
3.12 Compliance with Laws, etc.
The Company and each Subsidiary have all requisite licenses,
permits, clearances, authorizations, approvals and certificates, including,
without limitation, health and safety permits, from federal, state, local and
foreign government authorities necessary and material to the conduct of their
respective businesses as currently conducted (collectively, the "Permits").
Schedule 3.12 attached hereto sets forth a true, correct and complete list of
the Permits, copies of which have previously been delivered by the Company to
the Buyer. Neither the Company nor any Subsidiary is in violation of, nor has
the Company or any Subsidiary failed to comply with, any applicable law, rule,
regulation, ordinance, standards or contracting requirements of any federal,
municipal, local or foreign authorities or agencies (including, without
limitation, laws, rules, regulations or ordinances relating to building,
zoning, land use, foreign corrupt practices, anti-boycott, customs and export
control, civil rights, occupational safety and health or wage and health or
similar matters) and except for the matters described on Schedule 3.21,
neither the Company nor any Subsidiary has received notice or communication
from any federal, state or local governmental or regulatory authority or
otherwise of any such violation or noncompliance, in each case other than
violations which have not had and would not reasonably be expected to have a
Material Adverse Effect.
3.13 Employee Relations.
(a) The Company and its Subsidiaries employ approximately 220
employees in the aggregate as of the date hereof. There are no current
attempts or proceedings by any labor union or employee to organize any
employees of the Company or any of its Subsidiaries.
(b) There is no pending labor strike or any comparable dispute, or
stoppage pending or other material labor trouble affecting, the Company or any
of its Subsidiaries. There are no claims pending or threatened against the
Company or any of the Subsidiaries alleging non-compliance with any applicable
laws respecting employment and employment practices, terms and conditions of
employment and wages and hours.
3.14 Employee Benefit Plans.
3.14.1. Disclosure. Schedule 3.11 hereto contains a true and
complete list of all of the Pension Plans and Welfare Plans, if any.
True and complete copies of each such plan, and all employee summaries
with respect to each such plan, have been furnished to Buyer.
3.14.2. Welfare Plans. Each Welfare Plan is and has at all times
been administered in material compliance with the applicable provisions
of the federal Employee Retirement Income Security Act of 1974 and the
rules and regulations thereunder in each case as from time to time in
effect ("ERISA") and the Code and other applicable laws. Neither the
Company, nor any of its Subsidiaries, has any contingent, future or other
obligations or liabilities under or with respect to any Welfare Plan
which provides for the continuation of benefits at the expense of the
Company or any Subsidiaries after retirement or other termination of
employment, other than obligations of the Company and its Subsidiaries to
provide former employees continuation of health coverage to the extent
required by Part 6 of Title I of ERISA.
3.14.3. Pension Plans. No Pension Plan is a defined benefit
plan or a multi-employer plan. Each Pension Plan is and has at all times
been administered in material compliance with the applicable provisions
of ERISA and the Code and other applicable laws.
3.14.4. Effect of Transactions. The execution and delivery of
this Agreement and the consummation of the transactions contemplated
hereby will not involve any prohibited transaction within the meaning of
Section 406 of ERISA.
3.14.5. The term "Pension Plan" shall mean each pension plan
(as defined in Section 3(2) of ERISA) established or maintained, or to
which contributions are or were made, by the Company, or any of its
Subsidiaries or former Subsidiaries, or any person or entity which is a
member of the same Controlled Group with any of the foregoing.
3.14.6. The term "Welfare Plan" shall mean (i) each welfare
plan (as defined in Section 3(1) of ERISA) and (ii) each specified fringe
benefit plan (as defined in Section 6039 of the Code), established or
maintained, or to which any contributions are or were made, by the
Company, or any of its Subsidiaries or former Subsidiaries, or any person
or entity which is a member of the same Controlled Group with any of the
foregoing.
3.14.7. The term "Controlled Group", with respect to any
entity, shall mean any person or entity which is a member of the same
"controlled group" or under "common control", within the meaning of
Section 414(b) or (c) of the Code or Section 4001(b)(c) of ERISA, with
such entity.
3.15. Absence of Certain Changes or Events. Since the Balance Sheet
Date, neither the Company nor any Subsidiary has entered into any material
transaction which is not in the ordinary course of business. Without limiting
the generality of the foregoing, since the Balance Sheet Date, neither the
Company nor any Subsidiary has:
(a) except as set forth on Schedule 3.5(a), incurred any material
obligation or liability, whether fixed, accrued, contingent or otherwise,
other than obligations and liabilities in the ordinary course of business, or
incurred any indebtedness for borrowed money;
(b) discharged or satisfied any lien, claim or encumbrance or paid
any obligation or liability other than in the ordinary course of business;
(c) except as set forth on Schedule 3.5(a), suffered any damage,
destruction or losses of personal or real property, and whether or not in the
control of the Company or any Subsidiary, as the case may be, in excess of
$250,000 in the aggregate for insured matters or in excess of $50,000 in the
aggregate for uninsured matters;
(d) except as contemplated by the agreements listed on Schedule
3.11, incurred any capital expenditure in excess of $250,000 in the aggregate
for the Company and its Subsidiaries, except as approved in writing by the
Buyer;
(e) had any change constituting a Material Adverse Effect, whether
or not arising in the ordinary course of business;
(f) redeemed, purchased or made any other acquisition, directly or
indirectly, of such entity's own capital stock or any other securities, or
issued or sold any shares of capital stock or any options, warrants or
securities convertible into or exercisable for or rights to purchase any such
shares or authorized any declaration or payment of dividends or distributions,
or paid any such dividends, or authorized any transfer of assets of any kind
whatsoever to any of its respective stockholders with respect to any shares of
their capital stock, except as permitted by Section 6.1.1(b);
(g) made any change in the salary, benefits or other compensation
payable or to become payable by the Company or such Subsidiary, as the case
may be, to any of its directors, officers or employees, other than in the
ordinary course of business, or made any bonus payment to any of such
directors, officers or employees other than in the ordinary course of
business, or made any loan to any officer, director or employee, except for
advances not in excess of $50,000 in the aggregate to officers and employees
in the ordinary course of business;
(h) made any sale, lease, license or other disposition of its
assets other than sales or other dispositions of inventory and equipment in
the ordinary course of business;
(i) authorized or effected any change in its charter or by-laws or
any other organizational documents, as the case may be;
(j) made any change in its accounting methods or practices, or any
change in depreciation or amortization policies or rates previously adopted or
employed by it;
(k) made any material change in the manner in which it extends
discounts or credits or otherwise deals with customers, vendors, suppliers,
contractors, distributors, agents or sales representatives;
(l) made any amendment to, or terminated, any material contract to
which the Company or any Subsidiary was a party or by which their respective
properties or assets were bound;
(m) experienced any actual or threatened labor trouble or any
claim of unfair labor practices;
(n) had any material adverse change with respect to its insurance
or banking arrangements;
(o) forgiven or canceled any debts or claims or made any waiver or
compromise of any rights relating to its business other than in the ordinary
course of business;
(p) created any security interest, encumbrance, lien or guarantee,
or other contingent liability, or invested in any person or entity, or created
any mortgage, security interest, encumbrance or lien on any of its assets or
properties, other than each of the foregoing occurring in the ordinary course
of business;
(q) made any write-up or write-down of value in excess of $100,000
of any of its assets as unsalable or obsolete or for any other reason, or any
portion thereof, or any material write-off as uncollectible of any of its
accounts receivable or notes receivable or any portion thereof;
(r) had any material change in the manner in which products are
marketed or any increase in inventory levels in excess of historical levels
for comparable periods, other than as a result of anticipated increases in
sales; or
(s) made any commitment to do any of the acts specified above in
this Section 3.15.
3.16. Banking Facilities, Powers of Attorney, etc.
(a) Schedule 3.16 attached hereto sets forth a true, correct and
complete list of:
(i) other than accounts constituting assets of the
Company's 401(k) plan, each bank, savings and loan or
similar financial institution in which the Company and
each Subsidiary has an account or safety deposit box, and
any numbers of the accounts or safety deposit boxes
maintained by the Company and such Subsidiary thereat;
(ii) the names of all persons authorized to draw on
each such account or to have access to any such safety
deposit box facility; and
(iii) any outstanding powers of attorney executed on
behalf of the Company or any of its Subsidiaries in
respect of the Company or any of its Subsidiaries or
their respective assets, liabilities or businesses.
(b) Neither the Company nor any Subsidiary has any general or
special powers of attorney outstanding (whether as grantor or grantee thereof)
or has any obligation or liability (whether actual, accrued, accruing,
contingent or otherwise) as guarantor, surety, co-signer, endorser, co-maker,
indemnitor or otherwise in respect of the obligation of any person,
corporation, partnership, joint venture, association, organization or other
entity, except as endorser or maker of checks or letters of credit,
respectively, endorsed or made in the ordinary course of business.
3.17. Conflicts of Interest; Affiliated Transactions.
(a) For purposes of this Section 3.17, the term "Affiliate" shall
mean (i) each person or entity who is or was since January 31, 1994 an
executive officer, director or stockholder of the Company or any Subsidiary,
(ii) each executive officer, director, partner or trustee of any entity which
is or was since January 31, 1994 a stockholder of the Company, (iii) each
sibling, child or parent of any of the foregoing and each spouse of each such
sibling, child or parent, and (iv) each entity in which any of the foregoing
has a significant economic interest; provided, however, that neither the
Company nor any of its Subsidiaries shall be an Affiliate for such purposes.
(b) Except as set forth on Schedule 3.17 attached hereto, neither
any Majority Stockholder or any executive officer or director of the Company,
nor any of their respective Affiliates is party to any agreement with the
Company or any Subsidiary that involves payments of more than $100,000 or is
not cancelable within one year.
(c) Except as described on Schedule 3.17 attached hereto, since
January 31, 1994 neither any Majority Stockholder or any executive officer or
director of the Company, nor any of their respective Affiliates has conducted
any transactions or entered into any agreements with the Company or any
Subsidiary (i) which, in the aggregate, resulted in the consolidated results
of operations of the Company and its Subsidiaries during such period being
materially greater than such results of operations would otherwise have been
or (ii) the discontinuation of which otherwise has had or will have a Material
Adverse Effect.
3.18. Inventory. Except for applicable reserves, the inventory of the
Company and its Subsidiaries is not held in a quantity materially in excess of
normal anticipated business needs. Purchase commitments for raw materials and
parts are not, individually or in the aggregate, materially in excess of
normal requirements.
3.19. Principal Customers and Suppliers. The Company has delivered to
the Buyer a list of the ten largest customers and suppliers of the Company and
its Subsidiaries on a consolidated basis for the fiscal year ended January 31,
1995 and the twelve-month period ended June 24, 1995. No such customer or
supplier has made any threat to discontinue doing business with the Company
and its Subsidiaries or has canceled or terminated or otherwise materially
adversely altered, or made any threat to cancel or terminate or materially
alter, any written agreement to purchase or sell to or from the Company or any
of the terms thereof.
3.20. Brokers. Neither the Company nor any Subsidiary has incurred any
liability, contingent or otherwise, for fees of any investment banker,
financial advisor, broker or finder on its behalf in respect of this Agreement
or the transactions contemplated hereby.
3.21. Hazardous Materials; Environmental Compliance; Disclosure of
Environmental Information.
(a) Definitions. The term "Hazardous Materials," as used herein,
shall mean and include any and all substances (including without limitation
petroleum and any derivative thereof), wastes or materials where present in
regulated concentrations or quantities or otherwise regulated as hazardous or
toxic to health, the environment or natural resources under any applicable
local, foreign, state or federal law, rule, ordinance, statute or regulation
governing the protection of the environment, health, safety or natural
resources, including, without limitation, the Comprehensive Environmental
Response, Compensation & Liability Act (all such laws, rules, ordinances,
statutes and regulations being referred to collectively as "Environmental
Laws"). The term "Environmental Liabilities" shall mean any liability, claim,
demand, charge, obligation, deficiency, loss (including without limitation any
diminution in value), expenditure, cost or expense (including without
limitation reasonable attorney's fees and disbursements and costs of response
or remediation) (collectively, "Environmental Losses") to the extent imposed
or incurred by reason of (i) any noncompliance in any respect with applicable
Environmental Laws by or on behalf of the Company or any of its Subsidiaries
or any predecessor entities on or prior to the Closing Date or (ii) (a) the
on-site or off-site disposal of any Hazardous Materials by or on behalf of the
Company or any of its Subsidiaries or any predecessor entities on or prior to
the Closing Date or (b) the release into the environment of, or, solely to the
extent the subject Environmental Loss is imposed or incurred by reason of a
threatened release, threat of release into the environment of, or exposure to,
any Hazardous Material on or prior to the Closing Date, whether generated,
handled or possessed by the Company or any of its Subsidiaries or any
predecessor entities or located at or emanating from or to a site now or
heretofore owned, leased or otherwise used by the Company or any of its
Subsidiaries or any predecessor entities.
(b) Environmental. Except for (i) the matters described in the
Phase I Environmental Site Assessment prepared by Montgomery Watson concerning
the Company dated July, 1995 (the "Phase I Report"), and (ii) the matters
referenced in Schedule 3.21:
(i) There are no criminal, civil or administrative
proceedings relating to Environmental Laws pending or
threatened in writing against the Company or any
Subsidiary in connection with their businesses;
(ii) No underground storage tanks or related
equipment or containers are located on property currently
owned or leased by the Company or any Subsidiary;
(iii) Neither the Company nor any Subsidiary is
generating, manufacturing, refining, transporting,
treating, storing, handling, disposing of, transferring,
producing, or processing (or has generated, manufactured,
refined, transported, treated, stored, handled, disposed
of, transferred, produced or processed) any Hazardous
Materials on any property currently owned or leased by the
Company or any Subsidiary, except in compliance in all
material respects with all applicable Environmental Laws;
(iv) Except where the Company has complied in all
respects with all applicable Environmental Laws (including
without limitation the maintenance of required records and
the filing of required reports), there has been no
release, spill, leak, pumping, pouring, emitting,
emptying, discharge, injection, escape, leaching, disposal
or dumping of any Hazardous Materials, and there has been
no release or threat of release of any Hazardous Materials
emanating from or to any properties presently or formerly
owned or leased by the Company or any of its Subsidiaries
that could give rise to liability or any other obligation
under applicable Environmental Laws;
(v) The Company and each Subsidiary is presently in
compliance in all material respects with all applicable
Environmental Laws;
(vi) Neither the Company nor any Subsidiary has
entered into or received written notice that it is subject
to any consent decree, compliance order or administrative
order or lien with respect to any applicable Environmental
Law or received any written request for information,
notice, notification, demand letter, administrative
inquiry, or formal or informal complaint or claim with
respect to any Environmental Liabilities;
(vii) The Company and each Subsidiary have not
received any assessment for any citations, fines or
penalties under any applicable Environmental Law, which
have not been paid, and no such citations, fines,
penalties or assessments have been threatened against the
Company or any Subsidiary since January 31, 1994; and
(viii) The Company and each Subsidiary have or are
in the process of obtaining all permits relating to
applicable Environmental Laws which are necessary to the
conduct of their applicable businesses.
Except for the Phase I Report, since January 1, 1990, the Company has neither
prepared nor caused to be prepared nor received any environmental audits,
environmental risk assessments or site assessments.
3.22. Product Warranties; Defects; Liability. Each product manufactured,
sold, leased, or delivered by the Company since June 30, 1993 has been in
substantial conformity with all applicable federal, state, local or foreign
laws and regulations, and contractual commitments (except for products which
do not initially meet or are deemed not to have met the specifications of
certain contractual commitments, but conform to such specifications prior to
ultimate sale), and neither the Company nor any of its Subsidiaries has any
liability (and, to the knowledge of the Company, there is no basis for any
present or future action, suit, proceeding, hearing, investigation, charge,
complaint, claim, or demand giving rise to any liability) for replacement or
repair thereof or other damages in connection therewith, subject only to the
reserve applicable to product warranty claims set forth on the face of the
Unaudited Balance Sheet (rather than in any notes thereto) and except to the
extent that failure to be in conformity would not have a Material Adverse
Effect. No product manufactured, sold, leased, or delivered by the Company
since June 30, 1993 is subject to any guaranty, warranty, or other indemnity
beyond the applicable general terms and conditions of sale or lease. Schedule
3.22 hereto includes summaries of the general terms and conditions of sale or
lease for the Company and its Subsidiaries (containing applicable guaranty,
warranty, and indemnity provisions).
3.23. Organization of WTD. WTD is a joint venture duly organized and
validly existing with the status of a legal person under the Law of the
People's Republic of China on Joint Ventures Using Chinese and Foreign
Investment, the regulations for implementation thereof and other relevant
Chinese laws and regulations, and has all the requisite power and authority to
own its assets and properties and to carry on its business as now being
conducted. Copies of the Contract of Joint Venture dated April 30, 1995,
between the Seller and Wuhan Optical Communication Technology Company, as in
effect on the date hereof, and each other agreement and document named in
Schedule 3.23, in each case as amended to date (collectively, the "WTD
Agreements"), have been previously delivered to the Buyer, are complete and
correct, and no further amendments have been made thereto or have been
authorized since the date thereof. Each of the contracts included in the WTD
Agreements (assuming due authorization, execution and delivery by each other
party thereto), is binding and enforceable against WTD in accordance with its
terms (except to the extent that enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to creditors'
rights generally or to the extent that equitable remedies may not be
available) and is in full force and effect, and no material default by WTD or
by any third party, exists thereunder.
3.24. Investment in WTD. The Company owns a 25 percent equity interest
in WTD
(subject to an increase to 50 percent in accordance with the terms of the WTD
Agreements), and holds such interest free and clear of any and all liens,
charges, encumbrances and purchase options except as provided in the WTD
Agreements. WTD does not own or hold of record or beneficially, either
directly or indirectly (i) any shares of any class in the capital of any
corporation or (ii) any other proprietary interest in any association, trust,
partnership, joint venture or other entity, or business enterprise or have any
agreement to acquire any capital stock or other proprietary interest.
3.25. Authorization of WTD. The execution and delivery by the Company of
this Agreement and the New Employment Agreements, and the consummation by the
Company of the transactions contemplated hereby and thereby to be carried out
by the Company, do not and will not, with or without the giving of notice or
the passage of time or both (a) violate the provisions of any Chinese law,
rule or regulation applicable to WTD; (b) violate the provisions of the WTD
Agreements; (c) violate any judgment, decree, order or award of any court,
governmental body or arbitrator applicable to WTD; or (d) conflict with or
result in the breach or termination of any term or provision of, or constitute
a default under, or any acceleration under, or cause the creation of any lien,
charge or encumbrance upon the properties or assets of WTD pursuant to, any
other material instruments, contract or agreement to which WTD is a party or
by which WTD or any of its properties is or may be bound; other than such of
the foregoing as do not and will not have a Material Adverse Effect. Schedule
3.25 attached hereto sets forth a true, correct and complete list of all
consents, approvals and notifications of any Chinese governmental authority or
other third parties (including without limitation parties to any agreement or
lease) that are required in connection with the consummation by the Company of
the transactions contemplated by this Agreement in order to the immediately
preceding sentence to be true.
3.26. WTD Compliance with Laws, etc. WTD has all requisite licenses,
permits, clearances, authorizations, approvals and certificates, including,
without limitation, health and safety permits, from all Chinese authorities
and any other third parties necessary and material to the conduct of WTD's
business as currently conducted (collectively, the "WTD Permits"). WTD is not
in violation of, nor has WTD failed to comply with, any applicable law, rule,
regulation, ordinance, standards or contracting requirements of any Chinese
authority or agency (including, without limitation, laws, rules, regulations
or ordinances relating to building, zoning, land use, environmental laws,
taxes, corrupt practices, anti-boycott, customs and export control, civil
rights, occupational safety and health or wage and health or similar matters)
and WTD has not received any notice of communication from any Chinese
governmental authority or otherwise of any such violation or noncompliance, in
each case other than violations which have not had and would not reasonably be
expected to have a Material Adverse Effect. WTD has adequate rights to the
technology used in the conduct of its business, free and clear of all liens,
security interests, licenses, equities or other claims. The use of such
technology by WTD in its operations does not infringe upon or otherwise
constitute an unauthorized use of any patent, trademark, service mark, trade
name, copyright or license of any other person or entity, except for such
infringement or unauthorized use which has not had and would not reasonably be
expected to have a Material Adverse Effect.
3.27. No Illegal Payments, Etc. None of the Stockholders, the Company,
any of its Subsidiaries or any of the officers, employees or agents of the
Company or any of its Subsidiaries, has (a) directly or indirectly given or
agreed to give any illegal gift, contribution, payment or similar benefit to
any supplier, customer, governmental official or employee or other person who
was, is or may be in a position to help or hinder the Company or any of its
Subsidiaries (or assist in connection with any actual or proposed transaction)
or made or agreed to make any illegal contribution, or reimbursed any illegal
political gift or contribution made by any other person, to any candidate for
federal, state, local or foreign public office (i) which would subject the
Company or any of its Subsidiaries to any damage or penalty in any civil,
criminal or governmental litigation or proceeding or (ii) the non-continuation
of which has had or will have, individually or in the aggregate, a Material
Adverse Effect or (b) established or maintained any unrecorded fund or asset
or made any false entries on any books or records for any purpose.
3.28. Disclosure. This Agreement and the Exhibits and Schedules attached
hereto do not, considered as a whole, omit to state a material fact required
to be stated herein or therein or necessary to make the statements and facts
contained herein and therein, in light of the circumstances in which they are
made, not misleading.
4. Representations of the Buyer.
The Buyer represents and warrants to each Stockholder as follows as of
the date hereof:
4.1 Organization and Authority. The Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware, and has all requisite power and authority (corporate and other)
to acquire the Shares. The Buyer has full corporate power to execute and
deliver this Agreement and the agreements contemplated herein, and to
consummate the transactions contemplated hereby and thereby.
4.2 Authorization. The execution and delivery of this Agreement by the
Buyer, and the consummation by the Buyer of the transactions contemplated
hereby, have been duly authorized by all requisite corporate action. This
Agreement has been duly executed by the Buyer. Assuming the due
authorization, execution and delivery hereof and thereof by each other party
hereto and thereto, this Agreement and the written obligations entered into
and undertaken in connection with the transactions contemplated hereby to
which the Buyer is party constitute the valid and legally binding obligations
of the Buyer enforceable against the Buyer in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally.
The execution, delivery and performance of this Agreement and the agreements
provided for herein, and the consummation by the Buyer of the transactions
contemplated hereby and thereby, do not and will not, with or without the
giving of notice or the passage of time or both, (a) violate the provisions of
any law, rule or regulation applicable to the Buyer (assuming compliance with
the requirements of the H-S-R Act); (b) violate the provisions of the Amended
and Restated Certificate of Incorporation, as amended to date, or By-laws of
the Buyer; (c) violate any judgment, decree, order or award of any court,
governmental body or arbitrator applicable to the Buyer; or (d) conflict with
or result in the breach or termination of any term or provision of, or
constitute a default under, or cause any acceleration under, or cause the
creation of any lien, charge or encumbrance upon the properties or assets of
the Buyer pursuant to, any indenture, mortgage, deed of trust or other
material agreement or instrument to which the Buyer is a party or by which the
Buyer is bound other than such of the foregoing as do not and will not result
in any liability on the part of, or any other adverse effect on, any
Stockholder or the Buyer. Schedule 4.2 attached hereto sets forth a true,
correct and complete list of all consents and approvals of third parties that
are required in connection with the consummation by the Buyer of the
transactions contemplated by this Agreement in order for the immediately
preceding sentence to be true.
4.3 Investment Bankers. The Buyer agrees to pay all fees, expenses and
compensation owed to Cowen & Company which has been retained by the Buyer in
connection with the transactions contemplated hereby. The Buyer represents
and warrants that no other person, firm or corporation has acted in the
capacity of broker or finder on its behalf to bring about the negotiation of
this Agreement.
4.4 Investment Representation. The Buyer is acquiring the Shares from
the Stockholders for its own account for investment, and not with a view to,
or for sale in connection with any distribution thereof, nor with any present
intention of distribution or selling the same. The Buyer does not have any
present or contemplated agreement, undertaking, arrangement, obligation,
indebtedness or commitment providing for the disposition of the Shares after
the Closing.
4.5 Fairness Opinion. The Buyer has received an opinion from Cowen and
Company (the "Fairness Opinion") to the effect that the transactions
contemplated by this Agreement are fair to the Buyer's stockholders from a
financial point of view.
5. Access to Information; Confidentiality; Press Releases, etc.
5.1 Access to Management, Properties and Records. From the date of the
execution of this Agreement by the Majority Stockholders until the Closing
Date, the Company shall afford the officers, attorneys, accountants and other
authorized representatives of the Buyer and its bank lenders reasonable access
upon reasonable notice and during normal business hours to all management
personnel, offices, properties, books and records of the Company and its
Subsidiaries, so that the Buyer and its bank lenders may have full opportunity
to make such investigation as they shall desire to make of the management,
business, properties and affairs of the Company and its Subsidiaries.
5.2 Confidentiality. Except as otherwise contemplated by Sections 5.3
and 6.1.2 hereof, the Confidentiality Agreement dated as of April 6, 1995
between the Company and the Buyer shall continue in full force and effect and
shall cover all information received by the Buyer and its bank lenders or by
the Company and the Stockholders from and after the date hereof and prior to
the Closing Date.
5.3 Press Releases and Public Announcements. No party hereto shall
issue any press release or make any public announcement relating to the
subject matter of this Agreement prior to the Closing without the prior
written approval of the other party; provided, however, that any party hereto
may make any public disclosure it believes in good faith is required by
applicable law or any listing or trading agreement concerning its publicly-
traded securities (in which case the disclosing party will use its best
efforts to advise the other party prior to making the disclosure).
6. Certain Pre-Closing Covenants.
6.1 Covenants of the Company and its Subsidiaries. Prior to the
Closing, the Company covenants and agrees with the Buyer, except as hereafter
consented to in writing by the Buyer or as specifically contemplated in this
Agreement, during the period from the date of the execution of this Agreement
by the Majority Stockholders until the Closing, to comply with each of the
following provisions applicable to it:
6.1.1. Conduct of Business. The Company and each Subsidiary shall
carry on their businesses substantially in the same manner as heretofore,
and will not enter into any transaction outside the ordinary course. All
of the property of the Company and each Subsidiary shall be used,
operated, repaired and maintained in a manner consistent with past
practice. Without the prior written consent of the Buyer, which shall
not unreasonably be withheld, neither the Company nor any Subsidiary
shall:
(a) take any action to amend its charter documents, By-laws or
other organizational documents;
(b) redeem, purchase or make any other acquisition, directly or
indirectly, of such entity's own capital stock, issue any stock, bonds or
other securities or grant any option or issue any warrant to purchase or
subscribe for any of such securities or issue any securities convertible into
such securities or issue any right or commitment therefor, other than (i)
issuances of Common Stock pursuant to option exercises in accordance with
their terms, and (ii) grants not to exceed an aggregate of 10,000 options to
new employees in the ordinary course of business;
(c) incur any material obligation or liability, except current
liabilities incurred and obligations under contracts and agreements entered
into in the ordinary course of business, or incur any indebtedness for
borrowed money;
(d) mortgage, pledge, or subject to any lien, charge or any other
encumbrance any of their respective assets or properties, other than
mechanic's liens or liens arising by operation of law;
(e) sell, assign, or transfer any of its assets, except for
inventory or equipment sold or otherwise disposed of in the ordinary course of
business;
(f) pay or cancel any debts, claims, obligations or liabilities,
except in the ordinary course of business;
(g) merge or consolidate with or into any corporation or other
entity or purchase substantially all of its assets;
(h) materially alter the terms, status or funding condition of any
Pension Plan or Welfare Plan;
(i) cancel or permit to lapse any insurance policy;
(j) make any increases in salary, benefits or other compensation
in any manner or form to its directors, officers or employees except in the
ordinary course of business, or make any bonus payment to any of its
directors, officers or employees other than in the ordinary course of business
or make any loan to any officer, director or employee, except for advances not
in excess of $50,000 in the aggregate to officers and employees in the
ordinary course of business;
(k) except as permitted by clause (b) above, engage in any
practice, take any action or enter into any transaction of the sort described
in Section 3.15 above;
(l) declare or make any payment or distribution to its
stockholders with respect to its stock or purchase or redeem any shares of its
capital stock, or enter into any other transaction with or make any payment to
any of its stockholders (as such) or any affiliate thereof; or
(m) commit or agree to do any of the foregoing in the future.
6.1.2. Communications with Customers, Suppliers and Employees. The
Company and the Buyer will mutually agree upon the standards (including
the nature, content and timing) of communications with suppliers,
customers and employees relating to this Agreement and the transactions
contemplated hereunder prior to the Closing Date; it being understood
that the Buyer shall have the right to contact such customers and
suppliers in connection with its investigation of the business of the
Company and its Subsidiaries.
6.1.3. Preservation of Organization. The Company and each
Subsidiary will use all reasonable efforts to (a) preserve the present
business organization of the Company and each Subsidiary intact; (b)
preserve the good will of and keep available the services of the present
employees of the Company and each Subsidiary; and (c) preserve present
relationships with entitles or persons having business dealings with the
Company and its Subsidiaries.
6.2 Hart-Scott-Rodino Filing. The Company and Buyer have made, or
shall promptly make all required filings under the H-S-R Act on a confidential
basis, including, without limitation, a Notification and Report Form for
Certain Mergers and Acquisitions (or any successor form) and any amendments
thereto with the Federal Trade Commission (the "FTC") and the Department of
Justice, in connection with the transactions contemplated by this Agreement as
required by the anti-trust laws of the United States. The Company and Buyer
agree to cooperate and promptly respond to any inquiries or investigations
initiated by the FTC or the Department of Justice in connection with such
filings.
6.3 No Solicitation. Each of the Company and the Stockholders
severally, for itself only and not jointly, agree not to, and to cause their
subsidiaries, affiliates, officers, directors, employees, representatives or
agents, not to, directly or indirectly, solicit, encourage or initiate the
submission of proposals or offers from, or provide any confidential
information to, or participate in discussions or negotiations or enter into
any agreement or understanding with, any corporation, partnership, person or
other entity or group (other than Buyer and any of its directors, officers,
employees, representatives or agents) concerning any merger, combination, sale
of material assets (other than sales of inventory and equipment in the
ordinary course of business), sale of shares of capital stock (except as
permitted by Section 6.1.1(b)) or similar transactions involving the Company
or its Subsidiaries. Each of the Company and the Stockholders severally, for
itself only and not jointly, agree promptly to cease and cause to be
terminated any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any of the foregoing. The
Company will immediately communicate to the Buyer the terms of any proposal,
discussion, negotiation or inquiry and the identity of the party making such
proposal or inquiry which it may receive in respect of any such transaction
including, in the case of written proposals or inquiries, furnishing the Buyer
with a copy of such proposal or inquiry (and all amendments and supplements
thereto).
6.4 Reports; Taxes. The following provisions shall govern the
allocation of responsibility as between the Buyer and the Company on the one
hand and the Stockholders and the Stockholders' Representative on the other
hand for certain Tax matters following the Closing Date:
(a) For any Tax periods ending on or before the Closing Date, and
for any Tax periods beginning before the Closing Date and ending after the
Closing Date, the Company shall prepare or cause to be prepared all Tax
Returns for the Company and its Subsidiaries which are filed after the Closing
Date. Subject to the requirements of applicable law, with respect to all
periods up to and including the Closing Date, each such Tax Return shall be
prepared in a manner consistent with past practices of the Company and its
Subsidiaries. Each such Tax Return (or the portion of any consolidated,
combined, or unitary return including the Company or its Subsidiaries) shall
be submitted to the Stockholders' Representative at least thirty (30) days
prior to the due date (including any extension thereof) for filing such Tax
Return. The Company shall make any changes in such draft Tax Return as are
reasonably requested by the Stockholders' Representative not less than seven
(7) days prior to the due date (including extensions) for filing such Return.
The Company shall timely file or cause to be filed such Tax Return, as so
modified.
(b) The Buyer, the Company, the Stockholders, and the
Stockholders' Representative shall cooperate fully, as and to the extent
reasonably requested by the other party, in connection with the filing of Tax
Returns pursuant to this Section and any audit, litigation or other proceeding
with respect to Taxes. Such cooperation shall include the retention and (upon
the other party's request) the provision of records and information which are
reasonably relevant to any such audit, litigation or other proceeding and
making employees available on a mutually convenient basis to provide
additional information and explanation of any material provided hereunder.
The Company agrees (A) subject to clause (B) below, to retain all books and
records with respect to Tax matters pertinent to the Company relating to any
Tax periods ending on or prior to the Closing Date and any Tax periods
beginning before the Closing Date and ending after the Closing Date, and to
abide by all record retention agreements entered into with any taxing
authority, and (B) to give the Stockholders' Representative reasonable written
notice prior to transferring, destroying or discarding any such books and
records prior to the expiration of the applicable statute of limitations for
the Tax period, and, if the Stockholders' Representative so requests, the
Company shall allow the Stockholders' Representative to take possession of
such books and records.
7. Certain Other Covenants.
7.1 Reasonable Efforts to Obtain Satisfaction of Conditions, etc.
Prior to Closing, each of the Stockholders (each Stockholder for itself only
and not jointly) and the Company, on the one hand, and the Buyer on the other
hand, covenant and agree to use their reasonable efforts to obtain the
satisfaction of the conditions to the obligations to consummate the Closing of
the other parties specified in this Agreement; provided, that, the Company
shall not be obligated to make any payment to any lessor in connection with
obtaining such lessor's consent to the consummation of the transactions
contemplated hereby.
7.2 Amendment of Schedules. The Stockholders and the Company may from
time to time prepare and deliver to the Buyer an amendment and restatement of
the Exhibits and Schedules (other than Schedules 3.2 and 3.4) hereto (the
"Seller's Schedules") disclosing any changes thereto required in respect of
(i) matters not known to the Company or the Stockholders on or prior to the
date of execution and delivery hereof and (ii) matters relating to
Environmental Liabilities (the "Amended Seller's Schedules"). The Buyer may
from time to time prepare and deliver to the Stockholders' Representative an
amendment and restatement of Schedule 4.2 (the "Buyer's Schedule") disclosing
any changes thereto required in respect of matters not known to the Buyer on
or prior to the date of execution and delivery hereof (the "Amended Buyer's
Schedule"). Not later than the Closing Date, the Stockholders' Representative
and Buyer shall deliver each to the other the definitive Amended Seller's
Schedules (such Schedules as in effect at the Closing being referred to herein
as the "Final Seller's Schedules") and the definitive Amended Buyer's Schedule
(such Schedule as in effect at the Closing being referred to herein as the
"Final Buyer's Schedule"), respectively. Notwithstanding the delivery of
Amended Seller's Schedules designated as the Final Seller's Schedules or
Amended Buyer's Schedule designated as Final Buyer's Schedule, each party
shall retain the right at any time prior to the Closing to withdraw such
party's previously designated final Schedules and substitute further amended
Exhibits and Schedules designated as final Schedules. In the event any party
shall deliver and designate as final any Amended Schedules on or after the
fifth (5th) day prior to the Closing Date then in effect, such Closing Date
may, at the option of the other party be deferred for up to five (5) days, and
in the event such deferral of the Closing Date would result in a Closing Date
after the Final Termination Date (as defined in Section 11.1), such Final
Termination Date shall be automatically deferred to the day after such
deferred Closing Date. In the event the Closing does not occur, the initial
Schedules shall constitute the Schedules for determining any inaccuracy in, or
breach of, any representations and warranties of any party (subject to the
provisions of Section 11.3). In the event the Closing occurs, the Final
Seller's Schedules and the Final Buyer's Schedule as in effect as of the
Closing shall supersede the initial Schedules and all Amended Schedules and
shall constitute the definitive Schedules for all purposes of Section 10
hereof.
7.3 Options.
(a) At the Closing Date, each outstanding Option under the
Company's 1982 Incentive Stock Option Plan and 1992 Stock Option Plan, as
listed on Schedule 7.3 hereto, as amended as of the Closing Date, whether
vested or unvested, will be assumed by the Buyer. Each Option so assumed by
the Buyer under this Agreement shall continue to have, and be subject to, the
same terms and conditions set forth in the applicable Stock Option Plan
immediately prior to the Closing Date, except that (i) such Option shall be
exercisable (when vested) for that number of whole shares of the Buyer's
Common Stock equal to the product of the number of shares of Company Common
Stock that were issuable upon exercise of such Option immediately prior to the
Closing Date multiplied by 2.48832, rounded to the nearest whole number of
shares of the Buyer's Common Stock, and (ii) the per share exercise price for
the shares of the Buyer's Common Stock issuable upon exercise of such assumed
Option shall be equal to the quotient determined by dividing the exercise
price per share of Company Common Stock at which such Option was exercisable
immediately prior to the Closing Date by 2.48832, rounded to the nearest whole
cent.
(b) After the Closing Date, the Buyer shall issue to each holder
of an outstanding Option a document evidencing the foregoing assumption of
such Option by the Buyer.
(c) It is the intention of the parties that the Options assumed by
the Buyer qualify following the Closing Date as incentive stock options as
defined in Section 422 of the Code to the extent that the Options qualified as
incentive stock options immediately prior to the Closing Date.
7.4 Form S-8. The Buyer agrees to file as promptly as possible, but in
any event within 30 days after the Closing Date, a registration statement on
Form S-8 for the shares of the Buyer's Common Stock issuable with respect to
assumed Options.
7.5 Other Obligations. Each party severally, for itself only and not
jointly, agrees, at any time, upon reasonable request from another party, to
do such acts and things as may be reasonably necessary or desirable to effect
the consummation of the transactions contemplated hereby in an orderly
fashion.
7.6 Charter and By-laws. After the Closing, the Company shall not, and
shall cause its Subsidiaries not to, amend the indemnification provisions of
their respective charters and By-laws as they relate to the services prior to
the Closing of the officers and directors thereof.
8. Conditions to Obligations to Close of the Buyer.
The obligations of the Buyer to consummate the Closing under this
Agreement are subject to the fulfillment, at or prior to the Closing Date, of
the following conditions precedent, each of which may be waived in writing in
the sole discretion of the Buyer:
8.1 Continued Truth of Representations and Warranties of Stockholders;
Compliance with Covenants and Obligations by Stockholders. The
representations and warranties of each of the Majority Stockholders set forth
in Section 2 hereof shall be true and correct in all material respects on and
as of the Closing Date as though such representations and warranties were made
on and as of such date. Each of the Majority Stockholders shall have
performed and complied in all material respects with all terms, conditions,
covenants, obligations, agreements and restrictions required by this Agreement
to be performed or complied with by such Stockholder prior to or at the
Closing Date. At the Closing, each of the Majority Stockholders shall have
delivered to the Buyer a certificate signed by such Stockholder of the
conditions provided in the first two sentences of this Section 8.1.
8.2 Continued Truth of Representations and Warranties of the Company
and its Subsidiaries; Compliance with Covenants and Obligations of the Company
and its Subsidiaries. The representations and warranties of the Company and
its Subsidiaries shall be true and correct in all material respects on and as
of the Closing Date as though such representations and warranties were made on
and as of such date. Each of the Company and its Subsidiaries shall have
performed and complied with all terms, conditions, covenants, obligations,
agreements and restrictions required by this Agreement to be performed or
complied with by each of them prior to or at the Closing Date. At the
Closing, the Company shall have delivered to the Buyer a certificate signed by
the President of the Company confirming the satisfaction of the conditions
provided in the first two sentences of this Section 8.2.
8.3 Final Schedules. The amendments to the Seller's Schedules set
forth in the Final Seller's Schedules (except for those amendments to Exhibits
I, II and III and Schedule 7.3 which are made solely to reflect the exercise
of vested options on or prior to Closing) shall be reasonably satisfactory in
form and substance to the Buyer.
8.4 Consent of Third Parties and Governmental Bodies. The Company
shall have received all consents and approvals of lenders, lessors, other
third parties and governmental agencies, bureaus, commissions and similar
bodies set forth on Schedule 3.4 attached hereto, which consents and approvals
shall be in form and substance reasonably satisfactory to Buyer.
8.5 Adverse Proceedings. No action, suit or proceeding by or before
any court or other governmental body shall have been instituted by any
governmental body or other person other than a party hereto which shall seek
to restrain, prohibit or invalidate the transactions contemplated by this
Agreement.
8.6 Opinion of Counsel. The Buyer shall have received an opinion
(which opinion shall be confirmed to the Buyer's senior lenders providing
financing, if requested) of Foley, Hoag & Eliot, counsel to the Company, its
Subsidiaries and certain Stockholders, dated as of the Closing Date, in form
and substance reasonably satisfactory to the Buyer and its counsel.
8.7 Consent of Optionholders. Each holder of an Option to be assumed by
Buyer in accordance with Section 7.3 shall have executed and delivered a
written consent to the assumption and conversion by the Buyer of the Options
held by such person.
8.8 New Employment Agreements. The Company shall have entered into
written employment agreements dated as of the Closing Date (the "New
Employment Agreements") with each of J. Jim Hsieh, Kenneth W. Nill, D.
Westervelt Davis and Dale Flanders (the "Key Employees") in substantially the
form attached hereto as Exhibits 8.8A-8.8D, respectively.
8.9 Closing Deliveries. The Buyer shall have received at or prior to
the Closing the following documents:
(a) the certificates representing the Shares duly endorsed for
transfer in accordance with Section 1.1 of this Agreement;
(b) certificates of the Secretary of State of The Commonwealth of
Massachusetts as to the legal existence and good standing (including Tax) of
the Company in Massachusetts, and comparable certificates for any material
subsidiaries reasonably requested by Buyer;
(c) a certificate of the Clerk of the Company attesting to the
incumbency and signatures of the officers of the Company, the authenticity of
the resolutions authorizing the transactions contemplated by this Agreement to
be carried out by the Company, and the authenticity and continuing validity of
the charter documents and By-laws delivered pursuant to Section 3.1; and
certificates of the Secretaries of the Subsidiaries attesting to the
authenticity and continuing validity of the charter documents and By-laws
delivered pursuant to Section 3.3;
(d) certificates of appropriate governmental officials in each
state in which the Company is required to qualify to do business as a foreign
corporation as to the due qualification and good standing of the Company in
each such jurisdiction, and comparable certificates for any material
Subsidiaries reasonably requested by Buyer;
(e) a cross receipt executed by the Buyer and the Stockholders'
Representative;
(f) all minute books, stock books and records and data relating to
the assets, properties, business and operations of the Company; and
(g) such other certificates of the Company's officers and such
other documents, to be in form and substance reasonably satisfactory to the
Buyer, evidencing satisfaction of the conditions of this Section 8 as the
Buyer shall reasonably request.
8.10 Repayment of Insider Loans. All loans payable to the Company or
any of its Subsidiaries from any of their officers, directors or employees as
reflected in the Unaudited Balance Sheet on the Balance Sheet Date shall have
been repaid in full, other than travel advances made in the ordinary course of
business.
8.11 Execution and Delivery of Agreement. This Agreement shall have
been executed and delivered by each of the Majority Stockholders on the date
hereof, and each other stockholder of the Company, and each optionholder who
intends to exercise his or her vested options for Common Stock, shall have
executed and delivered this Agreement on or prior to the Closing Date.
8.12 Corporate Proceedings. All corporate and other proceedings
required to be taken on the part of the Company and the Stockholders to
authorize or carry out this Agreement and the transactions contemplated hereby
to be carried out by them shall have been taken.
8.13 Antitrust Matters. The waiting period (and any extensions thereof)
as prescribed by the regulations promulgated under the H-S-R Act shall have
expired or shall have been terminated.
9. Conditions to Obligations to Close of the Company and the Stockholders.
The obligations of the Company and the Stockholders to consummate the
Closing under this Agreement are subject to the fulfillment, at or prior to
the Closing Date, of the following conditions precedent, each of which may be
waived in writing by the Stockholders' Representative, who shall have the
power and authority to bind all of the Stockholders:
9.1 Continued Truth of Representations and Warranties of the Buyer;
Compliance with Covenants and Obligations of the Buyer. The representations
and warranties of the Buyer in this Agreement shall be true and correct in all
material respects on and as of the Closing Date as though such representations
and warranties were made on and as of such date (even though they purport to
have been given on a date prior to the Closing Date), except for any changes
consented to in writing by the Stockholders' Representative. The Buyer shall
have performed and complied in all material respects with all terms,
conditions, covenants, obligations, agreements and restrictions required by
this Agreement to be performed or complied with by it prior to or at the
Closing Date. At the Closing, the Buyer shall have delivered to the
Stockholders a certificate signed by the President or any Vice President
confirming the satisfaction of the conditions provided in the first two
sentences of this Section 9.1.
9.2 Corporate Proceedings. All corporate and other proceedings
required to be taken on the part of the Buyer to authorize or carry out this
Agreement and the transactions contemplated hereby shall have been taken.
9.3 Consent of Third Parties and Governmental Bodies. The Buyer shall
have received all consents and approvals of all third parties and governmental
agencies, bureaus, commissions and similar bodies set forth on Schedule 4.2
attached hereto, which consents and approvals shall be in form and substance
reasonably satisfactory to the Stockholders' Representative.
9.4 Adverse Proceedings. No action, suit or proceeding by or before
any court or other governmental body shall have been instituted by any
governmental body or other person other than a party hereto which shall seek
to restrain, prohibit or invalidate the transactions contemplated by this
Agreement.
9.5 Opinion of Counsel. The Stockholders shall have received an
opinion of Ropes & Gray, counsel to the Buyer, dated the Closing Date, in form
and substance reasonably satisfactory to the Stockholders and their counsel.
9.6 Final Schedule. The amendments to the Buyer's Schedule set forth
in the Buyer's Final Schedule shall be reasonably satisfactory in form and
substance to the Stockholders and their counsel.
9.7 Antitrust Matters. The waiting period (and any extensions thereof)
as prescribed by the regulations promulgated under the H-S-R Act shall have
expired or shall have been terminated.
9.8 Closing Deliveries. The Stockholders shall have received at or
prior to the Closing the following:
(a) a certificate of the Secretary of State of the State of
Delaware as to the legal existence and good standing (including Tax) of the
Buyer in Delaware;
(b) a certificate of the Assistant Secretary of the Buyer
attesting to the incumbency of its officers, the authenticity of the
resolutions authorizing the transactions contemplated by this Agreement, and
the authenticity and continuing validity of the charter documents and by-laws
delivered pursuant to Section 4.1;
(c) payment of the Purchase Price in accordance with Section 1.2;
(d) a cross receipt executed by the Buyer and the Stockholders'
Representative; and
(e) such other certificates of the officers of the Buyer and such
other documents evidencing satisfaction of the conditions specified in this
Section 9 as the Stockholders' Representative shall reasonably request.
10. Indemnification.
10.1 REPRESENTATIONS, ETC. THE REPRESENTATIONS AND WARRANTIES OF THE
STOCKHOLDERS IN SECTION 2, THE COMPANY IN SECTION 3, AND THE BUYER IN SECTION
4, ALL AS MODIFIED BY THE SCHEDULES HERETO, AND IN THE CERTIFICATES DELIVERED
PURSUANT TO SECTIONS 8.1, 8.2, 8.9(c), 8.9(g), 9.1, 9.8(b) AND 9.8(e) ARE THE
SOLE AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES MADE BY THE PARTIES
HEREUNDER, SHALL BE DEEMED TO BE MATERIAL AND RELIED UPON BY THE PARTIES
HERETO, AND SHALL SURVIVE THE EXECUTION AND DELIVERY HEREOF AND THE CLOSING.
DISCLOSURE OF ANY MATTER SET FORTH ON ANY ONE SCHEDULE SHALL, IF REASONABLY
DESCRIBED, BE DEEMED TO BE SET FORTH ON ANY OTHER SCHEDULE FOR WHICH SUCH
MATTER IS APPLICABLE.
10.2 Indemnification of the Buyer and the Company.
(a) Subject to the terms of this Section 10, each Stockholder
severally, for itself only, and not jointly, hereby agrees to indemnify the
Buyer and the Company from and against all Losses (as defined in Section 10.6)
in connection with or otherwise relating to any or all of the following:
(i) any misrepresentation or inaccuracy in, or breach of, any
representation or warranty made by such Stockholder in Section 2 of
this Agreement or Exhibit I hereto (to the extent information
therein relates to such Stockholder or the certificate delivered by
such Stockholder pursuant to Section 8.1 (as in the case of such
certificate each representation or warranty therein would read if
all qualifications as to materiality were deleted therefrom); and
(ii) any breach of any covenant, agreement or obligation of
such Stockholder contained in this Agreement.
(b) Subject to the terms of this Section 10, each Stockholder
hereby agrees to indemnify and hold harmless the Buyer and the Company from
and against all Losses in connection with or otherwise relating to any or all
of the following:
(i) any misrepresentation or inaccuracy in, or breach of, any
representation or warranty made by the Company in this Agreement or
any Exhibits or Schedules hereto or the certificates delivered
pursuant to Sections 8.2, 8.9(c) and 8.9(g) (as each such
representation or warranty would read if all qualifications as to
materiality or Material Adverse Effect were deleted therefrom); and
(ii) any breach of any covenant, agreement or obligation of
the Company or any of its Subsidiaries contained in this Agreement,
or any Exhibits or Schedules hereto, to be performed by the Company
or such Subsidiary at or prior to Closing.
(c) No claim may be made by the Buyer or the Company as
Indemnified Party (as defined in Section 10.4) pursuant to Section 10.2(a) or
10.2(b) after October 31, 1996 except for Buyer's Reserved Claims. "Buyer's
Reserved Claims" shall mean (i) all claims as to which such Indemnified Party
has given any Indemnifying Party notice pursuant to Section 10.4 on or prior
to such date, (ii) all claims under Section 10.2(a) to the extent they result
from a misrepresentation or inaccuracy in a statement made in Section 2(a) or
(b) hereof or in Exhibit I, (iii) all claims based upon a breach of or
inaccuracy in any of the representations or warranties set forth in Section
3.10, and (iv) all claims based upon fraud. Claims in respect of Buyer's
Reserved Claims may be made at any time subject to the statute of limitations
applicable thereto.
(d) No Stockholder shall have any obligation under Section 10.2(b)
hereof to indemnify the Buyer or the Company in respect of any Loss incurred
due to any inaccuracy in or the breach of any representation and warranty
contained in any Section hereof other than Section 3.10 and Section 3.21,
until the total of all such Losses incurred by the Buyer or the Company
(excluding Losses incurred in respect of the representations and warranties
contained in Sections 3.10 and 3.21 hereof) exceeds $1,250,000, whereupon the
Buyer and the Company shall be entitled to indemnification hereunder for the
entire amount of all such Losses (excluding Losses incurred in respect of the
representations and warranties contained in Sections 3.10 and 3.21 hereof) in
excess of $1,250,000. No Stockholder shall have any obligation under Section
10.2(b) hereof to indemnify the Buyer or the Company in respect of any Loss
incurred due to any inaccuracy in or the breach of any representation and
warranty contained in Section 3.10 hereof until the total of all Losses
incurred by the Buyer or the Company in respect of the representations and
warranties contained in Section 3.10 hereof exceeds $250,000, whereupon the
Buyer and the Company shall be entitled to indemnification hereunder for the
entire amount of all such Losses in excess of $250,000. No Stockholder shall
have any obligation under Section 10.2(b) hereof to indemnify the Buyer or the
Company in respect of any Loss incurred due to any inaccuracy in or the breach
of any representation and warranty contained in Section 3.21 hereof until the
total of all Losses incurred by the Buyer or the Company in respect of the
representations and warranties contained in Section 3.21 hereof exceeds
$250,000, whereupon the Buyer and the Company shall be entitled to
indemnification hereunder for the entire amount of all such Losses in excess
of $250,000. Notwithstanding the foregoing, the aggregate maximum recovery in
respect of all Losses incurred by the Buyer or the Company under this Section
10.2(d) shall not exceed $12,000,000. Each Stockholder shall be liable in
respect of a portion of such indemnification obligation equal to the
percentage thereof set forth opposite such Stockholder's name on Exhibit III
hereto (as to each Stockholder, such Stockholder's "Obligation Percentage")
and no more. No Stockholder shall have any obligation under Section 10.2(a)
in excess of such Stockholder's pro rata percentage of the Purchase Price (the
"Payment Percentage"), as set forth on Exhibit I hereto. The limitations of
this Section 10.2(d) shall not apply to claims based upon fraud.
(e) Following the Closing, the indemnification afforded by this
Section 10.2 shall be the sole and exclusive remedy of the Buyer and the
Company in respect of any misrepresentations or inaccuracies in, or breach of,
any representation or warranty or any breach or failure to perform prior to
the Closing of any covenants or agreements made by any of the Stockholders or
the Company in this Agreement or any Exhibit or Schedule hereto or any
certificate delivered pursuant hereto.
(f) Each Stockholder which is a trust or partnership which
receives any portion of the Purchase Price in consideration for the Shares
transferred to the Buyer hereunder agrees not to distribute any portion of
such proceeds to any beneficiary or other person prior to the date on which
all obligations to indemnify the Buyer under this Section 10 have expired,
unless such person prior to receipt of any such proceeds has executed and
delivered an agreement in form and substance reasonably satisfactory to the
Buyer whereby such person agrees to be liable for a portion of the
indemnification obligations under Section 10.2(a) and 10.2(b) equal to (i) the
percentage representing the portion of the proceeds received from such
distributing Stockholder multiplied by (ii) the Payment Percentage of such
distributing stockholder in the case of such obligations incurred under
Section 10.2(a), and the Obligation Percentage of such distributing
Stockholder in the case of such obligations incurred under Section 10.2(b).
10.3 Indemnification of the Stockholders.
(a) Subject to the terms of this Section 10, each of the Buyer and
the Company, jointly and severally, hereby agrees to indemnify and hold
harmless the Stockholders from and against all Losses in connection with or
otherwise relating to any or all of the following:
(i) any misrepresentation or inaccuracy in, or breach of, any
representation or warranty made by the Buyer in Section 4 of this
Agreement or any Exhibits or Schedules hereto or the certificates
delivered pursuant to Sections 9.1, 9.9(b) and 9.9(e) (as each such
representation or warranty would read if all qualifications as to
materiality and knowledge were deleted therefrom); and
(ii) any breach of any covenant, agreement or obligation of
the Buyer contained in this Agreement, or any Exhibit or Schedule
hereto.
(b) No claim may be made by any Stockholder as Indemnified Party
pursuant to Section 10.3(a) after October 31, 1996, except for Seller's
Reserved Claims. "Seller's Reserved Claims" shall mean (i) all claims as to
which such Indemnified Party has given any Indemnifying Party notice pursuant
to Section 10.4 on or prior to such date; and (ii) all claims based upon
fraud. Claims in respect of Seller's Reserved Claims may be made at any time
subject to the statute of limitations applicable thereto.
(c) Neither the Buyer nor the Company shall have any obligation
under Section 10.3(a) to indemnify any Stockholder in respect of any Loss
until the aggregate combined total of all Losses incurred by all Stockholders
exceeds $1,250,000, whereupon the Stockholders shall be entitled to
indemnification hereunder for the entire aggregate cumulative amount of all
such Losses in excess of $1,250,000, up to an aggregate maximum recovery in
respect of such Losses of $12,000,000. The limitations of this Section
10.3(c) shall not apply to claims based upon fraud.
(d) Following the Closing, the indemnification afforded by this
Section 10.3 shall be the sole remedy of the Stockholders in respect of any
misrepresentations or inaccuracies in, or breach of, any representation or
warranty or any breach or failure to perform prior to the Closing of any
covenants or agreements made by Buyer in this Agreement or any Exhibit or
Schedule hereto or any certificate delivered pursuant hereto.
10.4 Claims for Indemnification. Whenever any claim shall arise for
indemnification hereunder, the party seeking indemnification (the "Indemnified
Party") shall promptly notify in writing the party from whom indemnification
is sought (the "Indemnifying Party") of the claim and the facts believed to
constitute the basis for such claim, all with reasonable specificity in light
of the facts then known; provided, however, that, except where such notice
shall not have been provided within the time provided in Section 10.2(c) or
10.3(b), failure to so notify the Indemnifying Party shall not discharge the
Indemnifying Party from any of its liabilities and obligations hereunder.
Subject to Section 10.5, the Indemnified Party shall not settle or compromise
any claim by a third party for which it is entitled to indemnification
hereunder without the prior written consent of the Indemnifying Party, which
shall not be unreasonably withheld.
10.5 Defense by Indemnifying Party. In connection with any claims
giving rise to indemnity hereunder resulting from or arising out of any claim
or legal proceeding by a person who is a third party ("Third Party Claims"),
the Indemnifying Party at its sole cost and expense may, upon written notice
to the Indemnified Party, assume the defense of any such claim or legal
proceeding; provided, however, that if the Indemnified Party determines that
there is a reasonable probability that a claim may materially and adversely
affect it, other than solely as a result of money damages required to be
reimbursed in full under this Section 10, the Indemnified Party shall have the
right to defend against such claim or legal proceedings at the expense of the
Indemnifying Party and in such manner as it may reasonably deem appropriate,
including but not limited to, settling such claim or legal proceedings at the
expense of the Indemnifying Party and on such terms as the Indemnified Party
may reasonably deem appropriate. The Indemnified Party shall be entitled to
participate in the defense of any such action, with its counsel and at its own
expense. If the Indemnifying Party does not assume the defense of any such
claim or legal proceeding resulting therefrom within 30 days after the date of
receipt of the notice referred to in Section 10.4 above, (a) the Indemnified
Party may defend against such claim or legal proceeding at the expense of the
Indemnifying Party and in such manner as it may reasonably deem appropriate,
including but not limited to, settling such claim or legal proceeding at the
expense of the Indemnifying Party and on such terms as the Indemnified Party
may deem appropriate, and (b) the Indemnifying Party shall be entitled to
participate in (but not control) the defense of such action, with its counsel
and at its own expense. No settlement of any claim or legal proceeding by an
Indemnified Party, unless consented to in writing by the Buyer (in the case of
a Stockholder as Indemnified Party) or the Stockholders' Representative (in
the case of the Buyer or the Company as Indemnified Party), shall be
conclusive as to the amount of the Loss incurred by such Indemnified Party in
connection with such claim or legal proceeding.
10.6 Definition of Losses. For purposes of this Section 10, the term
"Losses" shall mean the amount of any actual damages, liabilities,
obligations, deficiencies, losses (including without limitation any diminution
in value), expenditures, costs or expenses (including without limitation
reasonable attorneys' fees and disbursements). For purposes of determining
the amount of any Loss, the amount of any Loss (a) shall be calculated taking
into account the estimated present value of anticipated tax effects of both
such Loss and receipt of indemnification therefor and (b) shall be reduced by
any indemnification proceeds received in respect thereof under any
indemnification agreement to which the Company or any of its Subsidiaries was
party prior to the Closing Date or insurance proceeds received in respect
thereof (in each case net of costs of recovery).
Buyer and the Company shall not terminate any prepaid insurance acquired
by the Company prior to the Closing. In the event that a recovery is made by
any party hereto with respect to any Loss for which such party has received
indemnification hereunder, a refund equal to the portion of the
indemnification so recovered shall be promptly refunded to the parties that
provided such indemnification.
10.7 Treatment of Indemnification Payments. All indemnification
payments under this Section 10 shall be deemed adjustments to the Purchase
Price.
10.8 Miscellaneous. The Stockholders shall have no responsibility for,
or as a result of, the allocation by the Buyer of the Purchase Price for
accounting or tax purposes, nor shall any such allocation adversely affect any
bonus payable pursuant to the terms of the New Employment Agreements.
11. Termination of Agreement; Option to Proceed; Damages.
11.1 Termination by Lapse of Time. This Agreement shall terminate at
5:00 p.m., Boston Time, on September 30, 1995 (the "Final Termination Date")
if the Closing shall have not been consummated. Except as provided in Section
7.2 or 11.2, no party shall have any obligation hereunder, express or implied,
to extend the Final Termination Date.
11.2 Termination by the Parties. This Agreement may be terminated at
any time prior to the consummation of the Closing (i) by the mutual written
agreement of the parties hereto, (ii) by the Buyer by notice to the
Stockholders' Representative if (a) there has been a material inaccuracy in or
a material breach of any representation or warranty or a material breach of
contract by any Stockholder or the Company and (b) the same has not been cured
to the reasonable satisfaction of the Buyer within seven (7) days of notice of
such breach or inaccuracy to the Stockholders' Representative, (iii) by the
Stockholders' Representative (whose termination shall bind each of the
Stockholders) by notice to the Buyer if (x) there has been a material
inaccuracy in or material breach of any representation or warranty or a
material breach of contract by the Buyer and (y) the same has not been cured
to the reasonable satisfaction of the Stockholders' Representative within
seven (7) days after notice of such breach or inaccuracy to Buyer, (iv) by the
Buyer if (x) the conditions stated in Section 8 of this Agreement have not
been satisfied at or prior to the Closing Date, (v) by the Stockholders'
Representative (x) if the conditions stated in Section 9 of this Agreement
have not been satisfied at the Closing Date, or (vi) by the Buyer or the
Stockholders' Representative if (A) the consummation of the transactions
contemplated by this Agreement shall violate any order, decree or judgment of
any court or governmental body having competent jurisdiction; (B) there shall
have been enacted or proposed a statute, rule or regulation which makes the
consummation of the transactions contemplated hereby illegal or otherwise
prohibited; or (C) either the Federal Trade Commission or the Department of
Justice shall have initiated legal proceedings to enjoin or place material
limitations on the consummation of the transactions contemplated by this
Agreement. Each notice of breach or inaccuracy under Section 11.2(ii) or
(iii) and each notice of termination under Section 11.2 shall set forth the
facts believed to constitute the basis therefor, all with reasonable
specificity in light of the facts then known. In the event any party shall
deliver notice of breach or inaccuracy under Section 11.2(ii) or (iii) on or
after the eighth day prior to the Final Termination Date then in effect, the
Final Termination Date shall be automatically extended until 5:00 p.m., Boston
time, on the ninth day after the date of delivery of such notice.
11.3 Availability of Remedies. In the event of termination of this
Agreement, the Buyer shall have no further obligation or liability to the
Stockholders or the Company or any of its Subsidiaries or WTD under this
Agreement, and the Stockholders and the Company, its Subsidiaries and WTD
shall have no further obligation or liability to the Buyer under this
Agreement except (i) with respect to claims based upon fraud and (ii) as
hereinafter set forth in this Section 11.3. In the event this Agreement is
terminated by the Buyer or the Stockholders' Representative pursuant to the
provisions of clause (ii), (iii), (iv) or (v) of Section 11.2, the parties
hereto shall have available to them the following remedies. In the event of
such termination by the Buyer, if there shall have occurred any material
inaccuracy in or any material breach of any representation or warranty or any
material breach of contract by any Stockholder or the Company (a "Sellers Pre-
Termination Breach") which inaccuracy or breach is referred to in such notice
of termination furnished pursuant to Section 11.2, the Buyer shall be entitled
to payment from the Majority Stockholders or the Company of an amount equal to
the sum of (a) all out-of-pocket fees, costs and expenses incurred by the
Buyer in connection with this Agreement, the negotiation or performance
hereof, or any effort to consummate any of the transactions contemplated
hereby, plus (b) reasonable fees and disbursements of counsel and court costs
incurred by the Buyer in connection with obtaining such payment. In the event
of such termination by the Stockholders' Representative, if there shall have
occurred any material inaccuracy in or any material breach of any
representation or warranty or any material breach of contract by the Buyer (a
"Buyer Pre-Termination Breach") which inaccuracy or breach is referred to in
such notice of termination furnished pursuant to Section 11.2, each of the
Stockholders and the Company shall be entitled to payment from the Buyer of an
amount equal to the sum of (a) all out-of-pocket fees, costs and expenses
incurred by it in connection with this Agreement, the negotiation or
performance hereof, or any effort to consummate any of the transactions
contemplated hereby by the Stockholders, plus (b) reasonable fees and
disbursements of counsel and court costs incurred in connection with obtaining
such payment. For purposes of this Section 11.3, no facts or conditions
giving rise to any breach of or inaccuracy in any of the representations or
warranties set forth herein shall (A) in the case of the representations and
warranties set forth in Section 2 or 3 hereof, give rise to a Sellers Pre-
Termination Breach unless any Stockholder or the Company, respectively, had
knowledge of such facts or conditions as of the execution and delivery hereof,
or (B) in the case of the representations and warranties set forth in Section
4 hereof, give rise to a Buyer's Pre-Termination Breach unless the Buyer had
knowledge of such facts or conditions as of the execution and delivery hereof.
The rights to payment provided by this Section 11.3 are not subject to any
deductible or other limitation as to minimum amount. In addition, prior to
the Termination Date, the Buyer or the Stockholders' Representative shall be
entitled to furnish the notices required to effect termination without regard
to whether another party shall have previously furnished such notice, and upon
such furnishing shall be deemed for purposes of this Section 11.3 to have
terminated this Agreement, it being the intent of the parties to permit either
party or both parties to obtain the payments provided by this Section 11.3
where the required basis therefor exists, without regard to whether such party
is the first to exercise its rights under Sections 11.2 and 11.3; provided,
however, that in no event shall any party be entitled to furnish notice under
Section 11.2 after the Final Termination Date then in effect.
11.4 Certain Remedies of the Stockholders. No Stockholder shall have
any right of recovery or other remedy against the Company or any of its
Subsidiaries or WTD in respect of any misrepresentations or inaccuracies in,
or breach of, any representation or warranty of the Company or any of its
Subsidiaries or any breach of any covenant, agreement or obligation of the
Company or any of its Subsidiaries, in each case contained in this Agreement,
any Exhibit or Schedule hereto or any certificate or agreement contemplated by
this Agreement, other than, following the Closing Date, any obligations of the
Company and the Subsidiaries continuing or arising after the Closing Date
pursuant to the terms hereof including obligations of the Company to Key
Employees pursuant to the New Employment Agreements.
12. Consent To Jurisdiction.
Each of the parties by its execution hereof (i) hereby irrevocably
submits to the nonexclusive jurisdiction of the state courts of The
Commonwealth of Massachusetts and to the nonexclusive jurisdiction of the
United States District Court for the District of Massachusetts for the purpose
of any suit, action or other proceeding arising out of or based upon to this
Agreement or any other agreement contemplated hereby or relating to the
subject matter hereof or thereof and (ii) hereby waives to the extent not
prohibited by applicable law, and agrees not to assert by way of motion, as a
defense or otherwise, in any such jurisdiction of the above-named courts, that
its property is exempt or immune from attachment or execution, that any such
proceeding brought in one of the above-named courts is improper, or that any
right or remedy relating to this Agreement or any other agreement contemplated
hereby, or the subject matter hereof or thereof may not be enforced in or by
such court. Each of the parties hereby consents to service of process in any
such proceeding in any manner permitted by Massachusetts law, and agrees that
service of process by registered or certified mail, return receipt requested,
at its address specified pursuant to Section 13 hereof is reasonably
calculated to give actual notice.
13. Notices.
Any notices or other communications required or permitted hereunder shall
be sufficiently given if delivered personally or sent by telex, telecopier,
Federal Express, registered or certified mail, postage prepaid, addressed as
follows or to such other address of which the parties may have given notice:
To the Buyer:
Oak Industries Inc.
1000 Winter Street, South Entrance
Waltham, MA 02154
Attn: Pamela F. Lenehan
and
General Counsel
With a copy to:
Ropes & Gray
One International Place
Boston, MA 02110
Attn: David C. Chapin
To the Stockholders'
Representative:
Kenneth W. Nill
c/o Lastertron, Inc.
37 North Avenue
Burlington, MA 01803
With a copy to:
Foley, Hoag & Eliot
One Post Office Square
Boston, MA 02109
Attn: Edward N. Gadsby, Jr.
Unless otherwise specified herein, such notices or other communications shall
be deemed received (a) on the date delivered, if delivered personally or sent
by telex or telecopier, (b) one business day after being sent by Federal
Express and (c) three business days after being sent, if sent by registered or
certified mail.
14. Successors and Assigns.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto, the Stockholders' Representative, holders of Options (with
respect to Section 7.3), and their respective successors and assigns, except
that the Buyer, on the one hand, and the Stockholders, the Stockholders'
Representative, the Company and its Subsidiaries, on the other hand, may not
assign their respective obligations hereunder without the prior written
consent of the other parties; provided, however, that (i) the Buyer may assign
its rights and obligations hereunder to a subsidiary or affiliate of the
Buyer, (ii) Buyer may assign its rights (but not its obligations) hereunder to
one or more senior lenders providing the financing referred to in the Bank
Commitment, and (iii) that the Stockholders' Representative shall be entitled
to enforce the rights of any Stockholder hereunder. Any assignment in
contravention of this provision
shall be void. No assignment shall release the Buyer, the Stockholders, the
Company or its Subsidiaries from any obligation or liability under this
Agreement.
15. Entire Agreement; Amendments; Attachments.
(a) This Agreement, all Schedules and Exhibits hereto, and all
agreements and certificates to be delivered by the parties pursuant hereto
represent the entire understanding and agreement between the Buyer on the one
hand and the Stockholders, the Company and its Subsidiaries on the other hand
with respect to the subject matter hereof and supersede all prior oral and
written and all contemporaneous oral negotiations, commitments and
understandings between such parties. The Buyer and the Company by the consent
of their respective Boards of Directors or officers authorized by such Boards,
and the Stockholders' Representative (who shall have the authority to bind all
of the Stockholders) may amend or modify this Agreement, in such manner as may
be agreed upon, only by a written instrument executed by the Buyer, the
Company and such Stockholders' Representative, and each such amendment shall
be binding upon each party hereto.
(b) If the provisions of any Schedule or Exhibit to this Agreement
are inconsistent with the provisions of this Agreement, the provisions of this
Agreement shall govern. The Exhibits and Schedules attached hereto or to be
attached hereafter are hereby incorporated as integral parts of this
Agreement. Neither the reference, listing or description of any matter in any
Schedule hereto, nor the furnishing of any document for review, shall be
deemed to disclose an exception to any representation or warranty, except
solely to the extent the matter is adequately referred to or described in such
Schedule.
16. Severability.
Any provision of this Agreement which is invalid, illegal or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity, illegality or unenforceability,
without affecting in any way the remaining provisions hereof in such
jurisdiction or rendering that or any other provision of this Agreement
invalid, illegal or unenforceable in any other jurisdiction.
17. Expenses, etc.
Except as provided by Section 11.3, the Buyer, the Company and the
Stockholders agree to pay all of the respective fees and expenses (including,
without limitation, legal and accounting fees and expenses) incurred by them
in connection with or in contemplation of the transactions contemplated
hereby. Each Stockholder shall be responsible for payment of all sales or
transfer Taxes arising out of the conveyance of the Shares owned by such
Stockholder.
18. Governing Law.
This Agreement shall be governed by and construed in accordance with the
internal laws of The Commonwealth of Massachusetts.
19. Section Headings.
The Section headings are for the convenience of the parties and in no way
alter, modify, amend, limit, or restrict the contractual obligations of the
parties.
20. Company's Knowledge.
Whenever reference is made herein to the Company's knowledge, such
reference shall mean the actual knowledge of J. Jim Hsieh, Kenneth W. Nill,
David R. Wilcox and D. Westervelt Davis.
21. Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed to be an original, but all of which shall be one and the same
document.
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the date first above written.
BUYER: OAK INDUSTRIES INC.
BY: /S/ WILLIAM S. ANTLE III
TITLE: PRESIDENT AND
CHIEF EXECUTIVE OFFICER
COMPANY: LASERTRON, INC.
BY: /S/ J. JIM HSIEH
TITLE: PRESIDENT
MAJORITY STOCKHOLDERS:
/S/ J. JIM HSIEH
J. JIM HSIEH
HSIEH (1995) INVESTMENT
LIMITED PARTNERSHIP
BY: /S/ J. JIM HSIEH
J. JIM HSIEH
GENERAL PARTNER
BY: /S/ CHARLOTTE S. HSIEH
CHARLOTTE S. HSIEH
GENERAL PARTNER
/S/ FRANK C. HSIEH
FRANK C. HSIEH
/S/ CHARLOTTE S. HSIEH
CHARLOTTE S. HSIEH
/S/ CHARLOTTE S. HSIEH
CHARLOTTE S. HSIEH
AS CUSTODIAN UNDER UGMA FOR MICHAEL C. HSIEH
/S/ KENNETH W. NILL
KENNETH W. NILL
NILL (1995) INVESTMENT
LIMITED PARTNERSHIP
BY: /S/ KENNETH W. NILL
KENNETH W. NILL
GENERAL PARTNER
BY: /S/ B. GALE NILL
GALE NILL
GENERAL PARTNER
/S/ B. GALE NILL
GALE NILL
/S/ CHARLES E. HURWITZ
CHARLES E. HURWITZ
THE HURWITZ CHILDREN'S TRUST FOR
LISA A. MAYER, U/D/T MAY 13, 1995
BY: /S/ MARSHALL L. TUTUN
MARSHALL L. TUTUN
TRUSTEE
BY: /S/ NANCY L. HURWITZ
NANCY L. HURWITZ
TRUSTEE
THE HURWITZ CHILDREN'S TRUST FOR
RUTH D. HURWITZ, U/D/T MAY 13, 1995
BY: /S/ MARSHALL L. TUTUN
MARSHALL L. TUTUN
TRUSTEE
BY: /S/ NANCY L. HURWITZ
NANCY L. HURWITZ
TRUSTEE
THE HURWITZ CHILDREN'S TRUST FOR
DANIEL HURWITZ, U/D/T MAY 13, 1995
BY: /S/ MARSHALL L. TUTUN
MARSHALL L. TUTUN
TRUSTEE
BY: /S/ NANCY L. HURWITZ
NANCY L. HURWITZ
TRUSTEE
WUHAN OPTICAL COMMUNICATION
TECHNOLOGY COMPANY
BY: /S/ JIANG TING-LIN
JIANG TING-LIN
LEGAL REPRESENTATIVE
/S/ ASHLEY GALE NILL
ASHLEY GALE NILL
/S/ JOCELYN McCULLOUGH NILL
JOCELYN McCULLOUGH NILL
/S/ KATHERINE ANNE NILL
KATHERINE ANNE NILL
EXECUTION COPY
============================================================================
CREDIT AGREEMENT
Dated as of August 30, 1995
among
OAK INDUSTRIES INC.,
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
CHEMICAL BANK, as
Administrative Agent, Collateral Agent
and Issuing Bank
============================================================================
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms...................................... 2
SECTION 1.02. Terms Generally.................................... 31
ARTICLE II
The Credits
SECTION 2.01. Commitments........................................ 31
SECTION 2.02. Loans.............................................. 32
SECTION 2.03. Borrowing Procedure................................ 34
SECTION 2.04. Evidence of Debt; Repayment of Loans............... 35
SECTION 2.05. Fees............................................... 36
SECTION 2.06. Interest on Loans.................................. 37
SECTION 2.07. Default Interest................................... 38
SECTION 2.08. Alternate Rate of Interest......................... 38
SECTION 2.09. Termination and Reduction of Commitments........... 39
SECTION 2.10. Conversion and Continuation of Borrowings.......... 40
SECTION 2.11. Repayment of Term Borrowings....................... 42
SECTION 2.12. Optional Prepayment................................ 43
SECTION 2.13. Mandatory Prepayments.............................. 43
SECTION 2.14. Reserve Requirements; Change in Circumstances...... 46
SECTION 2.15. Change in Legality................................. 48
SECTION 2.16. Indemnity.......................................... 49
SECTION 2.17. Pro Rata Treatment................................. 50
SECTION 2.18. Sharing of Setoffs................................. 50
SECTION 2.19. Payments........................................... 52
SECTION 2.20. Taxes.............................................. 52
SECTION 2.21. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate.................... 56
SECTION 2.22. Letters of Credit.................................. 57
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers............................... 63
SECTION 3.02. Authorization...................................... 63
SECTION 3.03. Enforceability..................................... 64
SECTION 3.04. Governmental Approvals............................. 64
SECTION 3.05. Financial StatementS............................... 64
SECTION 3.06. No Material Adverse Change......................... 66
SECTION 3.07. Title to Properties; Possession Under Leases....... 66
SECTION 3.08. Subsidiaries....................................... 66
SECTION 3.09. Litigation; Compliance with Laws................... 67
SECTION 3.10. Agreements......................................... 67
SECTION 3.11. Federal Reserve Regulations........................ 68
SECTION 3.12. Investment Company Act; Public Utility
Holding Company Act................................ 68
SECTION 3.13. Use of Proceeds.................................... 68
SECTION 3.14. Tax Returns........................................ 68
SECTION 3.15. No Material Misstatements.......................... 68
SECTION 3.16. Employee Benefit Plans............................. 69
SECTION 3.17. Environmental Matters.............................. 69
SECTION 3.18. Insurance.......................................... 70
SECTION 3.19. Security Documents................................. 70
SECTION 3.20. Labor Matters...................................... 71
SECTION 3.21. Solvency........................................... 71
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events.................................. 72
SECTION 4.02. First Credit Event................................. 72
SECTION 4.03. Tranche A Term Borrowing........................... 75
SECTION 4.04. Tranche B Term Borrowings.......................... 76
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties............... 76
SECTION 5.02. Insurance.......................................... 77
SECTION 5.03. Obligations and Taxes.............................. 77
SECTION 5.04. Financial Statements, Reports, etc................. 77
SECTION 5.05. Litigation and Other Notices....................... 80
SECTION 5.06. Employee Benefits.................................. 80
SECTION 5.07. Maintaining Records; Access to Properties
and Inspections.................................... 81
SECTION 5.08. Use of Proceeds.................................... 81
SECTION 5.09. Compliance with Environmental Laws................. 81
SECTION 5.10. Further Assurances................................. 81
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness....................................... 83
SECTION 6.02. Liens.............................................. 84
SECTION 6.03. Sale and Lease-Back Transactions................... 86
SECTION 6.04. Investments, Loans and Advances.................... 87
SECTION 6.05. Mergers, Consolidations, Sales of Assets
and Acquisitions................................... 88
SECTION 6.06. Dividends and Distributions; Restrictions on
Ability of Subsidiaries to Pay Dividends........... 90
SECTION 6.07. Transactions with Affiliates....................... 91
SECTION 6.08. Business of Borrower and Subsidiaries.............. 91
SECTION 6.09. Indebtedness and Other Material Agreements......... 91
SECTION 6.10. Capital Expenditures............................... 92
SECTION 6.11. Leverage Ratio..................................... 92
SECTION 6.12. Interest Coverage Ratio............................ 92
SECTION 6.13. Consolidated Net Worth............................. 92
SECTION 6.14. Fiscal Year........................................ 93
ARTICLE VII
Events of Default.................................................. 93
ARTICLE VIII
The Administrative Agent and the Collateral Agent.................. 96
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices............................................ 100
SECTION 9.02. Survival of Agreement.............................. 100
SECTION 9.03. Binding Effect..................................... 101
SECTION 9.04. Successors and Assigns............................. 101
SECTION 9.05. Expenses; Indemnity................................ 106
SECTION 9.06. Right of Setoff.................................... 107
SECTION 9.07. Applicable Law..................................... 108
SECTION 9.08. Waivers; Amendment................................. 108
SECTION 9.09. Interest Rate Limitation........................... 109
SECTION 9.10. Entire Agreement................................... 110
SECTION 9.11. Waiver of Jury Trial............................... 110
SECTION 9.12. Severability....................................... 110
SECTION 9.13. Counterparts....................................... 110
SECTION 9.14. Headings........................................... 111
SECTION 9.15. Jurisdiction; Consent to Service of Process........ 111
SECTION 9.16. Confidentiality.................................... 112
SCHEDULE 1.01(a) Existing Indebtedness
SCHEDULE 1.01(b) Guarantors
SCHEDULE 2.01 Commitments
SCHEDULE 3.08 Subsidiaries
SCHEDULE 3.09 Litigation
SCHEDULE 3.17 Environmental Matters
SCHEDULE 3.18 Insurance
SCHEDULE 6.01 Permitted Indebtedness
SCHEDULE 6.02 Permitted Liens
SCHEDULE 6.04(k)
EXHIBIT A Form of Administrative Questionnaire
EXHIBIT B Form of Assignment and Acceptance
EXHIBIT C Form of Borrowing Request
EXHIBIT D Form of Guarantee Agreement
EXHIBIT E Form of Indemnity, Subrogation and
Contribution Agreement
EXHIBIT F Form of Pledge Agreement
EXHIBIT G Form of Opinion of Ropes & Gray
CREDIT AGREEMENT dated as of August 30,
1995, among OAK INDUSTRIES INC., a Delaware
corporation (the "Borrower"); the Lenders (as
defined in Article I); and CHEMICAL BANK, a
New York banking corporation, as issuing
bank, as administrative agent (in such
capacity, the "Administrative Agent") and as
collateral agent (in such capacity, the
"Collateral Agent") for the Lenders.
The Borrower has requested the Lenders to extend credit in the form
of (a) Tranche A Term Loans (such term and each other capitalized term used
but not defined herein having the meaning given it in Article I) on the date
of the Acquisition, in an aggregate principal amount not in excess of
$60,000,000, (b) Tranche B Term Loans on the date of the Connector Purchase,
in an aggregate principal amount not in excess of $60,000,000, and (c)
Revolving Loans at any time and from time to time prior to the Revolving
Credit Maturity Date, in an aggregate principal amount at any time outstanding
not in excess of $40,000,000. The Borrower has requested the Issuing Banks to
issue trade and standby letters of credit, in an aggregate face amount at any
time outstanding not in excess of $5,000,000, to support payment obligations
incurred in the ordinary course of business by the Borrower and its
Subsidiaries. The proceeds of (x) the Tranche A Term Loans are to be used
solely to finance the Acquisition, (y) the Tranche B Term Loans are to be used
solely to finance the Connector Purchase, and (z) the Revolving Loans are to
be used solely for the general corporate purposes of the Borrower, including
non-hostile acquisitions otherwise permitted herein (and proceeds of
borrowings on the date of the Acquisition, but not on any other date, may be
used to finance the purchase of shares of the capital stock of Lasertron).
The Lenders are willing to extend such credit to the Borrower and
the Issuing Banks are willing to issue letters of credit for the account of
the Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest
at a rate determined by reference to the Alternate Base Rate in accordance
with the provisions of Article II.
"ABR Term Borrowing" shall mean a Borrowing comprised of ABR Term
Loans.
"ABR Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Acquisition" shall mean the purchase by the Borrower, pursuant to
the Stock Purchase Agreement, of 100 percent of the issued and outstanding
shares of the capital stock of Lasertron for a gross purchase price no greater
than $112,000,000.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1 percent) equal to the product of
(a) the LIBO Rate in effect for such Interest Period and (b) Statutory
Reserves.
"Adjusted Oak" shall mean the Borrower and the Non-Connector
Subsidiaries, on a consolidated basis.
"Administrative Agent Fees" shall have the meaning assigned to such
term in Section 2.05(b).
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the person specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate
amount of the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1 percent) equal to the
greater of (a) the Prime Rate in effect on such day and (b) the sum of the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1 percent. If
for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be determined without regard to clause (b) of the preceding sentence, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively. The term "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective on the date such change is publicly announced as
being effective. The term "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers,
as published 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 of the quotations for the day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Loan, or with respect to the Commitment Fees, as the case may be,
the applicable percentage set forth below under the caption "Eurodollar
Spread" or "Fee Percentage", as the case may be, based upon the Leverage Ratio
and Interest Coverage Ratio for Adjusted Oak, prior to the closing of the
Connector Purchase, and Consolidated Oak, on the date of and after the closing
of the Connector Purchase, as of the relevant Determination Date:
<TABLE>
<CAPTION>
Eurodollar Fee
Spread Percentage
------------- -------------
<S> <C> <C>
CATEGORY 1 0.500 percent 0.200 percent
Leverage Ratio less than or
or equal to 0.20 to 1.00
AND
Interest Coverage Ratio
greater than or equal to
6.0 to 1.0
CATEGORY 2 0.625 percent 0.250 percent
Leverage Ratio less than or
equal to 0.35 to 1.0
AND
Interest Coverage Ratio
greater than or equal to
5.0 to 1.0
CATEGORY 3 0.750 percent 0.300 percent
Leverage Ratio less than or
equal to 0.50 to 1.00
AND
Interest Coverage Ratio
greater than or equal to
4.0 to 1.0
CATEGORY 4 1.000 percent 0.375 percent
Leverage Ratio greater than
0.50 to 1.00
OR
Interest Coverage Ratio
less than 4.0 to 1.0
</TABLE>
The applicable Category shall be the one with the lowest spreads for
which both the Leverage Ratio and the Interest Coverage Ratio requirements are
satisfied. Each change in the Applicable Percentage resulting from a change
in the Leverage Ratio or Interest Coverage Ratio shall be effective with
respect to all Loans, Commitments and Letters of Credit outstanding on and
after the date on which the financial statements and certificates required by
Section 5.04(a) or 5.04(b) and Section 5.04(c) are delivered to the
Administrative Agent indicating such change until the date immediately
preceding the next due date for the delivery of such financial statements and
certificates. Notwithstanding the foregoing, at any time during which the
Borrower has failed to deliver the financial statements and certificates
required by Section 5.04(a) or 5.04(b) and Section 5.04(c), the Leverage Ratio
and Interest Coverage Ratio shall be deemed to be in Category 4 for purposes
of determining the Applicable Percentage.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Attributable Debt" in respect of a Sale and Lease-Back Transaction
shall mean, at the time of determination, the present value (discounted at the
actual rate of interest implicit in such transaction) of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such Sale and Lease-Back Transaction (including any period for which such
lease has been extended or may, at the option of the lessor, be extended).
"Bain" shall mean Bain Venture Capital, a California limited
partnership.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in
effect.
"Borrowing Request" shall mean a request by the Borrower in
accordance with the terms of Section 2.03 and substantially in the form of
Exhibit C.
"Business Day" shall mean any day other than a Saturday, Sunday or
day on which banks in New York City are authorized or required by law to
close; provided, however, that when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" means, (a) with respect to Adjusted Oak for
any period, the additions to property, plant and equipment and other capital
expenditures of the Borrower and the Non-Connector Subsidiaries for such
period, as the same are (or would be) set forth, in accordance with generally
accepted accounting principles, in a consolidated statement of cash flow of
Adjusted Oak for such period and (b) with respect to Consolidated Oak for any
period, the additions to property, plant and equipment and other capital
expenditures of the Borrower and the Subsidiaries for such period, as the same
are (or would be) set forth, in accordance with generally accepted accounting
principles, in a consolidated statement of cash flow of Consolidated Oak for
such period.
"Capital Lease Obligations" of any person shall mean the obligations
of such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" of any person shall mean any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however designated) equity of such person,
including any limited or general partnership interest and any limited
liability company membership interest, but excluding any debt securities
convertible into such equity.
A "Change in Control" shall be deemed to have occurred if (a) any
person or group (within the meaning of Rule 13d-5 of the Securities Exchange
Act of 1934 as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing more than 30 percent of the
aggregate ordinary voting power represented by the issued and outstanding
capital stock of the Borrower; (b) a majority of the seats (other than vacant
seats) on the board of directors of the Borrower shall at any time be occupied
by persons who were neither (i) nominated by the board of directors of the
Borrower, nor (ii) appointed by directors so nominated; (c) any change in
control (or similar event, however denominated) with respect to the Borrower
or any Subsidiary shall occur under and as defined in any indenture or
agreement in respect of Indebtedness to which the Borrower or any Subsidiary
is a party; or (d) any person or group shall otherwise directly or indirectly
Control the Borrower.
"Closing Date" shall mean the date of the first Credit Event.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in the
Security Documents.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment, Tranche A Commitment and Tranche B Commitment or
any of such Commitments, as the context may require.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated August 1995.
"Connector" shall mean Connector Holding Company, a Delaware
corporation.
"Connector Pledge" shall mean the pledge by the Borrower of the
shares it owns of the Capital Stock of Connector pursuant to the Stockholders
Agreement.
"Connector Purchase" shall mean the purchase by the Borrower of all
shares of the Capital Stock of Connector not owned by the Borrower, pursuant
to Section 1.1 or 1.2 of the Stockholders Agreement.
"Consolidated Net Income" shall mean with respect to any person for
any period, the consolidated net income (or loss) of such person and its
subsidiaries, on a consolidated basis, for such period.
"Consolidated Net Worth" shall mean, as of any date, on a
consolidated basis for any person and its subsidiaries, (a) the sum of (i)
common and preferred stock (other than redeemable preferred stock) taken at
par or stated value, (ii) capital surplus relating to common and preferred
stock (other than redeemable preferred stock) and (iii) retained earnings (or
deficit) at such date minus (b) treasury stock at such date; provided,
however, that Consolidated Net Worth shall be adjusted to exclude the non-cash
charges incurred in connection with (x) the incremental expense of up to
$2,000,000 related to the write-up of Lasertron's inventory as a result of
purchase accounting and the charges related to in process research and
development costs of Lasertron immediately following the Acquisition, (y) the
write-off by Gilbert in fiscal 1995 of up to $1,800,000 of deferred financing
costs and booked original discount, and (z) purchase accounting adjustments
arising in connection with any acquisition (other than the Acquisition and the
Connector Purchase) consummated after the date of this Agreement, in each case
to the extent that such charges were deducted in any determination of
Consolidated Net Worth; provided, further, that the Consolidated Net Worth of
Adjusted Oak shall equal Consolidated Net Worth of the Borrower minus the
Consolidated Net Worth of Connector, after eliminating all intercompany items.
"Consolidated Oak" shall mean the Borrower and the Subsidiaries, on
a consolidated basis.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Credit Event" shall have the meaning assigned to such term in
Section 4.01.
"Current Assets" shall mean, as of any date, on a consolidated basis
for any person and its subsidiaries, all assets (other than cash and Permitted
Investments) which would be classified on a consolidated balance sheet of such
person and its subsidiaries as current assets at such date of determination.
"Current Liabilities" shall mean, as of any date, on a consolidated
basis for any person and its subsidiaries, all liabilities which would be
classified on a consolidated balance sheet of such person and its subsidiaries
as current liabilities (excluding the current portion of long term
Indebtedness) at such date of determination.
"Debt Service" shall mean, with respect to Consolidated Oak or
Adjusted Oak, as applicable, for any period, Interest Expense of such person
for such period plus scheduled principal amortization of Total Debt of such
person for such period, but only if such amount is actually paid in cash.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"Designated Financial Tests" shall be satisfied (a) for the purposes
of Section 6.05(d) (which relates to the right of the Borrower to make
acquisitions under certain circumstances), on the date of the proposed
acquisition, if (i) (A) the Leverage Ratio of Consolidated Oak and, prior to
the closing of the Connector Purchase, of Adjusted Oak is less than or equal
to 0.55 to 1.00 as of such date and (B) the Interest Coverage Ratio of
Consolidated Oak and, prior to the closing of the Connector Purchase, of
Adjusted Oak as of the last day of the fiscal quarter most recently ended for
which financial statements and certificates requried by Section 5.04(a) or
5.04(b) and Section 5.04(c) have been delivered was greater than or equal to
3.0 to 1.0, or (ii) (A) the sum of the aggregate Net Proceeds received on or
prior to such date (without giving effect to the provisos in clauses (a) and
(b) of the definition of "Net Proceeds") from (1) the issuance or sale of any
equity security of the Borrower and (2) the sale of the assets or Capital
Stock of O/E/N India Ltd. or WSNS, is at least $40,000,000, and (B) at least
$40,000,000 principal amount of outstanding Term Loans or, if less, the full
principal amount of oustanding Term Loans shall have been prepaid or shall
simultaneously be prepaid with such proceeds, and (b) for the purposes of the
definition of "Net Proceeds" (which relates to the amount of proceeds of
certain asset or stock sales that must be applied to prepay Loans), Section
2.09(c) (which relates to reductions in the Total Revolving Credit Commitment)
and Section 2.13(c) (which relates to the use of Excess Cash Flow to pay Term
Loans), for a complete fiscal quarter prior to a specified time if (i) (A) the
Leverage Ratio of Consolidated Oak and, prior to the closing of the Connector
Purchase, of Adjusted Oak is less than or equal to 0.55 to 1.00 on each day of
a complete fiscal quarter ended prior to such time (the "reference quarter")
and (B) the Interest Coverage Ratio of Consolidated Oak and, prior to the
closing of the Connector Purchase, of Adjusted Oak as of the last day of the
fiscal quarter immediately prior to the reference quarter and as of the last
day of the reference quarter was greater than or equal to 3.0 to 1.0, or (ii)
(A) the sum of the aggregate Net Proceeds received on or prior to such date
(without giving effect to the provisos in clauses (a) and (b) of the
definition of "Net Proceeds") from (1) the issuance or sale of any equity
security of the Borrower and (2) the sale of the assets or Capital Stock of
O/E/N India Ltd. or WSNS, is at least $40,000,000, and (B) at least
$40,000,000 principal amount of outstanding Term Loans or, if less, the full
principal amount of outstanding Term Loans shall have been prepaid or shall
simultaneously be prepaid with such proceeds; provided, however, that, prior
to the closing of the Connector Purchase, all calculations in connection with
such tests in respect of Consolidated Oak shall be made on a pro forma basis
as if the Borrower had borrowed Tranche B Term Loans in the full amount of the
Tranche B Commitments on the first day of the relevant fiscal period and had
made all scheduled principal payments with respect thereto during such period.
For the purposes of Section 6.05(d) (which relates to the right of the
Borrower to make acquisitions under certain circumstances), the Designated
Financial Tests shall be satisfied on a pro forma basis after giving effect to
an acquisition if (i) the Leverage Ratio of Consolidated Oak and, prior to the
closing of the Connector Purchase, of Adjusted Oak is less than or equal to
0.55 to 1.00 as of the date of consummation of such acquisition, giving effect
to such acquisition and the financing thereof, and (ii) the Interest Coverage
Ratio of Consolidated Oak and, prior to the closing of the Connector Purchase,
of Adjusted Oak was greater than or equal to 3.0 to 1.0 as of the last day of
the last complete fiscal quarter ended prior to such acquisition, as if such
acquisition and the financing thereof had been consummated on October 1, 1995,
or, if later, the first day of the four fiscal quarter period ended on such
last day.
"Determination Date" shall mean, on any date, the last day of the
most recent fiscal quarter for which financial statements and certificates
have been delivered pursuant to Section 5.04(a) or 5.04(b) and Section
5.04(c).
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"EBITDA" shall mean, for any period, with respect to Consolidated
Oak, the Consolidated Net Income of the Borrower and the Subsidiaries, and
with respect to Adjusted Oak, the Consolidated Net Income of the Borrower and
the Non-Connector Subsidiaries, in each case for such period plus, to the
extent deducted in computing such Consolidated Net Income, without
duplication, the sum of (a) income tax expense, (b) interest expense, (c)
depreciation and amortization expense, (d) any special charges and any
extraordinary or non-recurring losses, (e) non-cash charges incurred in
connection with (i) the incremental expense of up to $2,000,000 related to the
write-up of Lasertron's inventory as a result of purchase accounting and the
charges related to in process research and development costs of Lasertron
immediately following the Acquisition, (ii) in the case of the EBITDA of
Consolidated Oak, the write off by Gilbert in fiscal 1995 of up to $1,800,000
of deferred financing costs and booked original issue discount and (iii)
purchase accounting adjustments arising in connection with any acquisition
(other than the Acquisition and the Connector Purchase) consummated after the
date of this Agreement, (f) minority interests in the net income of Adjusted
Oak or Consolidated Oak, as the case may be, and (g) other non-cash items
reducing Consolidated Net Income, minus, to the extent added in computing such
Consolidated Net Income, without duplication, (i) interest income, (ii)
extraordinary or non-recurring gains and (iii) income of any person (other
than any Subsidiary) for any period in excess of dividends or distributions
actually received in cash from such person by the Borrower or a Subsidiary
during such period; provided, however, that for the fiscal quarters ending on
March 31, 1995, June 30, 1995, and September 30, 1995, EBITDA for the Borrower
and for Adjusted Oak shall be computed on a pro forma basis as if the
Acquisition had been completed on December 31, 1994.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon: (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-
sudden, accidental or non-accidental Releases); (b) exposure to any Hazardous
Material; (c) the presence, use, handling, transportation, storage, treatment
or disposal of any Hazardous Material; or (d) the violation or alleged
violation of any Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present 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, the management,
Release or threatened Release of any Hazardous Material or to health and
safety matters, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. Sec.Sec. 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and Hazardous and Solid Amendments of
1984, 42 U.S.C. Sec.Sec. 6901 et seq., the Federal Water Pollution Control
Act, as amended by the Clean Water Act of 1977, 33 U.S.C. Sec.Sec. 1251 et
seq., the Clean Air Act of 1970, as amended 42 U.S.C. Sec.Sec. 7401 et seq.,
the Toxic Substances Control Act of 1976, 15 U.S.C. Sec.Sec. 2601 et seq., the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. Sec.Sec. 651
et seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Sec.Sec. 11001 et seq., the Safe Drinking Water Act of 1974, as
amended, 42 U.S.C. Sec.Sec. 300(f) et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Sec.Sec. 1801 et seq., and any similar or
implementing state or local law, and all amendments or regulations promulgated
thereunder.
"Environmental Permit" shall mean any permit, approval,
authorization, certificate, license, variance, filing or permission required
by or from any Governmental Authority pursuant to any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code, or solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section
307 of ERISA; (c) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (d) the filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (e) the incurrence of any
liability under Title IV of ERISA with respect to the termination of any Plan
or the withdrawal or partial withdrawal of the Borrower or any of its ERISA
Affiliates from any Plan or Multiemployer Plan; (f) the receipt by the
Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to the intention to terminate any Plan or Plans or to appoint
a trustee to administer any Plan; (g) the receipt by the Borrower or any ERISA
Affiliate of any notice concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA; (h) the occurrence
of a "prohibited transaction" with respect to which the Borrower or any of its
Subsidiaries is a "disqualified person" (within the meaning of Section 4975 of
the Code) or with respect to which the Borrower or any such Subsidiary could
otherwise be liable; and (i) any other event or condition with respect to a
Plan or Multiemployer Plan that could reasonably be expected to result in
liability of the Borrower, other than contributions and payments in the
ordinary course of business pursuant to the terms of such Plan or
Multiemployer Plan.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Eurodollar Revolving Loan or
Eurodollar Term Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Borrowing" shall mean a Borrowing comprised of
Eurodollar Term Loans.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at
a rate determined by reference to the Adjusted LIBO Rate in accordance with
the provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year, EBITDA of
Adjusted Oak, prior to the Connector Purchase, and Consolidated Oak, after the
Connector Purchase, for such fiscal year, minus, without duplication, (a) Debt
Service of Adjusted Oak, prior to the Connector Purchase, and Consolidated
Oak, after the Connector Purchase, for such fiscal year, (b) any voluntary
prepayments of Term Loans during such fiscal year, (c) permitted Capital
Expenditures by the Borrower and the Non-Connector Subsidiaries, prior to the
Connector Purchase, or the Borrower and the Subsidiaries, after the Connector
Purchase, on a consolidated basis during such fiscal year which are paid in
cash, (d) taxes paid in cash by the Borrower and the Non-Connector
Subsidiaries, prior to the Connector Purchase, or the Borrower and the
Subsidiaries, after the Connector Purchase, on a consolidated basis during
such fiscal year, (e) an amount equal to any increase in Working Capital of
Adjusted Oak, prior to the Connector Purchase, or of Consolidated Oak, after
the Connector Purchase, for such fiscal year, and (f) to the extent included
in determining EBITDA, all items of revenue or income which did not result
from a cash payment to the Borrower and the Non-Connector Subsidiaries, prior
to the Connector Purchase, or the Borrower and the Subsidiaries, after the
Connector Purchase, during such fiscal year plus, without duplication, (i) an
amount equal to any decrease in Working Capital of Adjusted Oak, prior to the
Connector Purchase, or of Consolidated Oak, after the Connector Purchase for
such fiscal year and (ii) to the extent subtracted in determining EBITDA, all
items of expense which did not result from a cash payment by the Borrower and
the Non-Connector Subsidiaries, prior to the Connector Purchase, or the
Borrower and the Subsidiaries, after the Connector Purchase, during such
fiscal year.
"Existing Indebtedness" shall mean the Indebtedness of the Borrower
and the Subsidiaries listed in Schedule 1.01(a).
"Fee Letter" shall mean the Fee Letter dated August 1, 1995, between
the Borrower and the Administrative Agent.
"Fees" shall mean the Commitment Fees, the Administrative Agent's
Fees, the LC Participation Fees and the Issuing Bank Fees.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, Treasurer or Controller, or
any vice president performing the functions of any such officer, of such
corporation.
"Foreign Subsidiary" shall mean any Subsidiary that is not a
Domestic Subsidiary.
"GAAP" shall mean generally accepted accounting principles applied
on a consistent basis.
"Gilbert" shall mean Gilbert Engineering Co., Inc., a Delaware
corporation.
"Gilbert Collateral" shall have the meaning given to the term
"Collateral" in the Gilbert Credit Agreement.
"Gilbert Credit Agreement" shall mean the Credit Agreement dated as
of the date hereof among Connector, Gilbert, the lenders party thereto and
Chemical Bank, as issuing bank and as administrative agent and collateral
agent for the lenders party thereto.
"Gilbert Guarantee Agreement" shall have the meaning given to the
term "Guarantee Agreement" in the Gilbert Credit Agreement.
"Gilbert Guarantors" shall have the meaning given to the term
"Guarantors" in the Gilbert Credit Agreement.
"Gilbert Indemnity, Subrogation and Contribution Agreement" shall
have the meaning given to the term "Indemnity, Subrogation and Contribution
Agreement" in the Gilbert Credit Agreement.
"Gilbert Obligations" shall have the meaning given to the term
"Obligations" in the Gilbert Credit Agreement.
"Gilbert Secured Parties" shall have the meaning assigned to the
term "Secured Parties" in the Gilbert Credit Agreement.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation,
contingent or otherwise, of such person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
to purchase (or to advance or supply funds for the purchase of) any security
for the payment of such Indebtedness, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness or (c) to maintain working
capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness; provided, however, that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of
business.
"Guarantee Agreement" shall mean the Guarantee Agreement,
substantially in the form of Exhibit D, made by the Guarantors in favor of the
Collateral Agent for the benefit of the Secured Parties.
"Guarantors" shall mean each person listed on Schedule 1.01(b) and
each other person that becomes party to the Guarantee Agreement as a
Guarantor, and the permitted successors and assigns of each such person.
"Hazardous Materials" shall mean 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 ("PCBs")
or PCB-containing materials or equipment, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
"Inactive Subsidiary" shall mean any Subsidiary that (a) does not
carry on any business and (b) has total assets of not more than $10,000.
"Indebtedness" of any person shall mean, without duplication, (a)
all obligations of such person for borrowed money, (b) all obligations of such
person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such person upon which interest charges are customarily paid,
(d) all obligations of such person under conditional sale or other title
retention agreements relating to property or assets purchased by such person,
(e) all obligations of such person issued or assumed as the deferred purchase
price of property or services (excluding trade accounts payable and accrued
obligations incurred in the ordinary course of business), (f) all Indebtedness
of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such person, whether or not the obligations
secured thereby have been assumed, (g) all Guarantees by such person of
Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements and (j) all obligations of such person as an account
party in respect of letters of credit and bankers' acceptances. The
Indebtedness of any person shall include the Indebtedness of any partnership
in which such person is a general partner.
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form
of Exhibit E, among the Borrower, the Guarantors and the Collateral Agent.
"Interest Coverage Ratio" shall mean, with respect to any person,
the ratio as of the last day of any fiscal quarter, for the four fiscal
quarter period ended as of such day of (a) EBITDA minus Capital Expenditures
to (b) Interest Expense; provided, however, that for purposes of calculating
Interest Expense as of the last day of each of the fiscal quarters ending on
December 31, 1995, March 31, 1996, and June 30, 1996, the amount determined
pursuant to clause (b) above shall be determined by multiplying Interest
Expense for the period commencing October 1, 1995, and ending as of the end of
such fiscal period (i) by 4, in the case of the fiscal quarter ending December
31, 1995, (ii) by 2, in the case of the fiscal quarter ending March 31, 1996,
and (iii) by 4/3, in the case of the fiscal quarter ending June 30, 1996.
"Interest Expense" shall mean, with respect to Consolidated Oak or
Adjusted Oak, in each case on a consolidated basis for any period, interest
accrued or paid by the Borrower and the Subsidiaries, in the case of
Consolidated Oak, and the Borrower and the Non-Connector Subsidiaries, in the
case of Adjusted Oak, during such period in respect of Total Debt of such
person, excluding, in each case, amortization of deferred financing charges.
"Interest Payment Date" shall mean, with respect to any Loan, the
last day of the Interest Period applicable to the Borrowing of which such Loan
is a part and, in the case of a Eurodollar Borrowing with an Interest Period
of more than three months' duration, each day that would have been an Interest
Payment Date had successive Interest Periods of three months' duration been
applicable to such Borrowing, and, in addition, in the case of a Eurodollar
Borrowing, the date of any prepayment of such Borrowing or conversion of such
Borrowing to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the
last day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect and (b) as to any ABR Borrowing, the period commencing on
the date of such Borrowing and ending on the earliest of (i) the next
succeeding March 31, June 30, September 30 or December 31, and (ii) the
Revolving Credit Maturity Date or the Term Loan Maturity Date, as applicable;
provided, however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Investors" shall have the meaning given to such term in the
definition of "Stockholders Agreement".
"Issuing Bank" shall mean (a) Chemical Bank, in its capacity as
issuer of Letters of Credit, and (b) any other Issuing Bank appointed under
Section 2.22(i).
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(c).
"Lasertron" shall mean Lasertron, Inc., a Massachusetts corporation.
"L/C Commitment" shall mean the commitment of each Issuing Bank to
issue Letters of Credit pursuant to Section 2.22.
"L/C Disbursement" shall mean a payment or disbursement made by any
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate principal amount of all L/C Disbursements that have not yet been
reimbursed at such time. The L/C Exposure of any Revolving Credit Lender at
any time shall mean its Pro Rata Percentage of the aggregate L/C Exposure at
such time.
"L/C Participation Fee" shall have the meaning assigned to such term
in Section 2.05(c).
"Lenders" shall mean (a) the financial institutions listed on
Schedule 2.01 (other than any such financial institution that has ceased to be
a party hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance.
"Letter of Credit" shall mean any letter of credit issued pursuant
to Section 2.22.
"Leverage Ratio" shall mean, with respect to any person on any date,
the ratio of (a) Total Debt of such person as of such date to (b) the sum of
Consolidated Net Worth plus Total Debt, in each case of such person as of such
date.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing,
the rate (rounded upwards, if necessary, to the next 1/16 of 1 percent) at
which dollar deposits approximately equal in principal amount to the
Administrative Agent's portion of such Eurodollar Borrowing and for a maturity
comparable to such Interest Period are offered to the principal London office
of the Administrative Agent in immediately available funds by major banks in
the London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit,
the Guarantee Agreement, the Security Documents and the Indemnity, Subrogation
and Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors.
"Loans" shall mean the Revolving Loans and the Term Loans.
"Management Stockholders Agreement" shall mean the Management
Stockholders Agreement dated as of December 23, 1992, among Gilbert
Engineering Acquisition Co., Inc., Connector, Connector Acquisition Company,
the Borrower, certain investors party thereto and certain members of the
management of Gilbert party thereto.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect
on the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and the Subsidiaries taken as a whole, or of the
Borrower and the Non-Connector Subsidiaries taken as a whole, (b) material
impairment of the ability of the Borrower or any Subsidiary to perform any of
its obligations under any Loan Document to which it is or will be a party or
(c) material impairment of the rights of or benefits available to the Lenders
under any Loan Document.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" shall mean:
(a) 100 percent of the cash proceeds actually received by the
Borrower or any Non-Connector Subsidiary, prior to the Connector Purchase, or
by the Borrower or any Subsidiary, after the Connector Purchase (including,
when received, any cash payments in respect of principal of a note or
installment receivable evidencing or forming part of the purchase price or a
purchase price adjustment receivable or otherwise and including casualty
insurance settlements and condemnation awards, but only as and when received),
net of (i) attorneys' fees, accountants' fees, investment banking fees, survey
costs, title insurance premiums, and related search and recording charges,
transfer taxes, deed or mortgage recording taxes, required debt payments
(other than pursuant hereto), other customary expenses and brokerage,
consultant and other customary fees actually incurred in connection therewith
and (ii) taxes paid or payable as a result thereof (including withholding
taxes incurred in connection with cross-border transactions, if applicable,
and including taxes estimated by the Borrower to be payable as a result
thereof or as a result of such transactions), from any loss, damage,
destruction or condemnation, or any sale, transfer or other disposition
(including any sale and leaseback of assets and any mortgage or lease of real
property) to any person, of any asset or assets of the Borrower or any Non-
Connector Subsidiary (including any issuance or sale by any Non-Connector
Subsidiary of any of its equity securities), prior to the Connector Purchase,
or of the Borrower or any Subsidiary (including any issuance or sale by any
Subsidiary of any of its equity securities), after the Connector Purchase
(other than sales of assets expressly permitted by clause (a) of Section
6.05); provided, however, that (A) the Net Proceeds from any sale of tangible
personal property shall be reduced by an amount that the Borrower certifies in
writing to the Administrative Agent has been or will be reinvested by the
Borrower or the applicable Subsidiary in the purchase of like property
(provided that any amount not so reinvested within 90 days of receipt shall
immediately become Net Proceeds), (B) proceeds received from the sale of the
assets or Capital Stock of O/E/N India Ltd. or WSNS shall not constitute Net
Proceeds if the Designated Financial Tests had been satisfied for a complete
fiscal quarter prior to the date of such sale, and (C) with respect to any
fiscal year, no such proceeds realized in any fiscal year shall constitute Net
Proceeds except and only to the extent that all such proceeds shall, in the
aggregate, exceed $500,000 for such fiscal year; and
(b) 100 percent of the cash proceeds from the issuance or the sale
by the Borrower of any equity security of the Borrower, net of all taxes and
fees, discounts, commissions, costs and other expenses incurred in connection
with such issuance or sale; provided, however, that proceeds from any issuance
or sale of equity shall not constitute Net Proceeds if the Designated
Financial Tests had been satisfied for a complete fiscal quarter prior to the
date of such issuance or sale.
"Non-Connector Subsidiary" shall mean any Subsidiary that is not
Connector or a subsidiary of Connector.
"Obligations" shall mean, collectively, (a) the due and punctual
payment of (i) the principal of and premium, if any, and interest (including
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by the Borrower under this
Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral, (iii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations
incurred during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding), of the Loan Parties to the Secured Parties under this Agreement
and the other Loan Documents, (iv) any amount in respect of the foregoing that
the Administrative Agent, the Collateral Agent, any Issuing Bank or any
Lender, in its sole discretion, may elect to pay or advance under this
Agreement or any other Loan Document on behalf of any Loan Party after the
occurrence and during the continuation of a Default or an Event of Default and
(v) unless the applicable Lender otherwise agrees, all monetary obligations of
the Borrower and the Subsidiaries under each interest rate protection
agreement, foreign currency exchange agreement and other interest or exchange
rate hedging agreement with any Lender and (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Loan Parties under or pursuant to this Agreement and the other Loan Documents.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA.
"Permitted Other Acquisitions" shall have the meaning given such
term in Section 6.05(d).
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, (i) the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America) or (ii) any state
or municipality of the United States rated, at the date of acquisition, A or
higher by Standard & Poor's and A or higher by Moody's Investors Service,
Inc., in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition, a
rating of A-1 or higher from Standard & Poor's or a rating of P-1 or higher
from Moody's Investors Service, Inc.;
(c) any mutual fund or other pooled investment vehicle rated A or
higher by Moody's Investors Service, Inc., and A or higher by Standard &
Poor's, which invests principally in obligations described above;
(d) investments in certificates of deposit, banker's acceptances and
time deposits maturing within one year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of (i) any commercial bank organized
under the laws of the United States of America or any State thereof which has
a combined capital and surplus and undivided profits of not less than
$250,000,000 or (ii) any Lender; and
(e) other investment instruments approved in writing by the Required
Lenders and offered by financial institutions which have a combined capital
and surplus and undivided profits of not less than $250,000,000.
"Permitted Release" shall have the meaning given such term in
Section 5.10.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership, limited liability company or
government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in
the form of Exhibit F, between the Borrower, the Subsidiaries party thereto
and the Collateral Agent for the benefit of the Secured Parties and Gilbert
Secured Parties.
"Pro Rata Percentage" of any Revolving Credit Lender at any time
shall mean the percentage of the Total Revolving Credit Commitment
represented by such Lender's Revolving Credit Commitment. In the event the
Revolving Credit Commitments shall have expired or been terminated, the Pro
Rata Percentages shall be determined on the basis of the Revolving Credit
Commitments most recently in effect, but giving effect to any assignments
pursuant to Section 9.04.
"Register" shall have the meaning given such term in Section
9.04(d).
"Regulation G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Release" shall mean 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.
"Remedial Action" shall mean: (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24); and (b) any other action
required by any Governmental Authority or voluntarily undertaken to (x) clean
up, remove, treat, abate or in any other way address any Hazardous Material in
the environment; (y) prevent the Release or threat of Release, or minimize the
further Release of any Hazardous Material so it does not migrate or endanger
or threaten to endanger public health, welfare or the environment; or (z)
perform studies and investigations in connection with, or as a precondition
to, clause (x) or (y) above.
"Reportable Event" shall mean any reportable event as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"Required Lenders" shall mean, at any time, Lenders having Loans,
L/C Exposure and unused Revolving Credit Commitments, Tranche A Commitments
and Tranche B Commitments representing greater than 50 percent of the sum of
all Loans outstanding, L/C Exposure and unused Revolving Credit Commitments,
Tranche A Commitments and Tranche B Commitments at such time.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make Revolving Loans hereunder as set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender assumed its Revolving Credit Commitment, as applicable, as the
same may be (a) reduced from time to time pursuant to Section 2.09 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender
at any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of such
Lender's L/C Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving
Credit Commitment.
"Revolving Credit Maturity Date" shall mean September 30, 2000.
"Revolving Loans" shall mean the revolving loans made by the Lenders
to the Borrower pursuant to clause (c) of Section 2.01. Each Revolving Loan
shall be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"Sale and Lease-Back Transaction" shall mean any arrangement,
directly or indirectly, whereby the Borrower or any Subsidiary shall sell or
transfer to any person any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and thereafter the Borrower
or any Subsidiary (other than, for so long as the Gilbert Credit Agreement is
effective, Gilbert or any of its subsidiaries) shall rent or lease such
property, or other property that it intends to use for substantially the same
purpose or purposes as the property being sold or transferred, from such
person or any of its Affiliates.
"Secured Parties" shall have the meaning assigned to such term in
the Pledge Agreement.
"Security Documents" shall mean the Pledge Agreement and each of the
other instruments and documents executed and delivered pursuant to the
foregoing or pursuant to Section 5.10.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board and any other banking authority, domestic or
foreign, to which the Administrative Agent or any Lender (including any
branch, Affiliate, or other fronting office making or holding a Loan) is
subject for Eurocurrency Liabilities (as defined in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency
Liabilities and to be subject to such reserve requirements without benefit of
or credit for proration, exemptions or offsets that may be available from time
to time to any Lender under such Regulation D. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Stockholders Agreement" shall mean the Stockholders Agreement dated
as of December 22, 1992, among Connector, the Borrower, certain investors from
time to time party thereto (the "Investors") and Bain.
"Stock Purchase Agreement" shall mean the Stock Purchase Agreement
among Lasertron, the stockholders of Lasertron party thereto and the Borrower
related to the acquisition of Lasertron by the Borrower and signed
contemporaneously with this Agreement.
"subsidiary" shall mean, with respect to any person (herein referred
to as the "parent"), any corporation, partnership, association or other
business entity of which securities or other ownership interests representing
more than 50 percent of the equity or more than 50 percent of the ordinary
voting power or more than 50 percent of the general partnership interests are,
at the time any determination is being made, owned, controlled or held by the
parent.
"Subsidiary" shall mean any subsidiary of the Borrower.
"Term Borrowing" shall mean a Borrowing comprised of Tranche A Term
Loans or Tranche B Term Loans.
"Term Loan Repayment Amounts" shall mean, for any period, the
Tranche A Term Loan Repayment Amounts and the Tranche B Term Loan Repayment
Amounts payable during such period.
"Term Loan Repayment Dates" shall mean the Tranche A Term Loan
Repayment Dates and the Tranche B Term Loan Repayment Dates.
"Term Loans" shall mean the Tranche A Term Loans and the Tranche B
Term Loans.
"Total Debt" shall mean, with respect to Consolidated Oak or
Adjusted Oak, in each case on a consolidated basis at any time, all
Indebtedness (other than Indebtedness of the type referred to in clause (i) of
the definition of the term "Indebtedness" or Indebtedness of the type referred
to in clauses (f) and (g) of such definition to the extent that the
Indebtedness of the other person referred to in such clauses (f) and (g) is
Indebtedness of the type referred to in clause (i)) of the Borrower and the
Subsidiaries, in the case of Consolidated Oak, and the Borrower and the Non-
Connector Subsidiaries, in the case of Adjusted Oak, in each case at such
time.
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such
time.
"Tranche A Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make a Tranche A Term Loan hereunder as set forth
on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such
Lender assumed its Tranche A Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04.
"Tranche A Maturity Date" shall mean September 30, 2000.
"Tranche A Term Borrowing" shall mean a Borrowing comprised of
Tranche A Term Loans.
"Tranche A Term Loan Closing Date" shall mean the date on which
Tranche A Term Loans are made.
"Tranche A Term Loan Repayment Amount" shall have the meaning
assigned to such term in Section 2.11(a).
"Tranche A Term Loan Repayment Date" shall have the meaning assigned
to such term in Section 2.11(a).
"Tranche A Term Loans" shall mean the term loans made by the Lenders
to the Borrower pursuant to clause (a) of Section 2.01. Each Tranche A Term
Loan shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Tranche B Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make a Tranche B Term Loan hereunder as set forth
on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such
Lender assumed its Tranche B Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04
"Tranche B Maturity Date" shall mean September 30, 2000.
"Tranche B Term Borrowing" shall mean a Borrowing comprised of
Tranche B Term Loans.
"Tranche B Term Loan Closing Date" shall mean the date on which
Tranche B Term Loans are made.
"Tranche B Term Loan Repayment Amount" shall have the meaning
assigned to such term in Section 2.11(b).
"Tranche B Term Loan Repayment Date" shall have the meaning assigned
to such term in Section 2.11(b).
"Tranche B Term Loans" shall mean the term loans made by the Lenders
to the Borrower pursuant to clause (b) of Section 2.01. Each Tranche B Term
Loan shall be either a Eurodollar Term Loan or an ABR Term Loan.
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer
to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, the term "Rate"
shall include the Adjusted LIBO Rate and the Alternate Base Rate.
"wholly owned Subsidiary" of any person shall mean a subsidiary of
such person of which securities (except for directors' qualifying shares) or
other ownership interests representing 100 percent of the equity or 100
percent of the ordinary voting power or 100 percent of the general partnership
interests are, at the time any determination is being made, owned, controlled
or held by such person or one or more wholly owned subsidiaries of such person
or by such person and one or more wholly owned subsidiaries of such person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Working Capital" shall mean, with respect to any person and its
subsidiaries on a consolidated basis at any date of determination, Current
Assets for such person at such date of determination minus Current Liabilities
for such person at such date of determination; provided, however, that the
Working Capital of Adjusted Oak shall equal the Working Capital of the
Borrower minus the Working Capital of Connector, after eliminating all
intercompany items.
"WSNS" shall mean the Borrower's interest in the joint venture Video
44.
"WTD" shall mean Wuhan Telecommunication Devices Company, a Sino
foreign joint venture limited liability company.
SECTION 1.02. Terms Generally. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". All references herein to Articles, Sections, Exhibits
and Schedules shall be deemed references to Articles and Sections of, and
Exhibits and Schedules to, this Agreement unless the context shall otherwise
require. Except as otherwise expressly provided herein, (a) any reference in
this Agreement to any Loan Document shall mean such document as amended,
restated, supplemented or otherwise modified from time to time and (b) all
terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; provided, however, that for
purposes of determining compliance with the covenants contained in Article VI,
all accounting terms herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP as in effect on
the date of this Agreement and applied on a basis consistent with the
application used in the financial statements referred to in Section 3.05(a).
ARTICLE II. THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make a Tranche A Term Loan to the
Borrower on the date of the closing of the Acquisition, but in no event later
than the termination of the Tranche A Commitment of such Lender in accordance
with the terms hereof, in an aggregate principal amount not to exceed its
Tranche A Commitment, (b) to make a Tranche B Term Loan to the Borrower on the
date of the closing of the Connector Purchase, but in no event prior to the
making of the Tranche A Term Loans or later than the termination of the
Tranche B Commitment of such Lender in accordance with the terms hereof, in an
aggregate principal amount not to exceed its Tranche B Commitment, and (c) to
make Revolving Loans to the Borrower, at any time and from time to time on or
after the date hereof, and until the earlier of the Revolving Credit Maturity
Date and the termination of the Revolving Credit Commitment of such Lender in
accordance with the terms hereof, in an aggregate principal amount at any time
outstanding that will not result in (i) such Lender's Revolving Credit
Exposure exceeding (ii) such Lender's Revolving Credit Commitment. Within the
limits set forth in clause (c) of the preceding sentence and subject to the
terms, conditions and limitations set forth herein, the Borrower may borrow,
pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in
respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their applicable Commitments; provided, however, that the failure of any
Lender to make any Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender
shall be responsible for the failure of any other Lender to make any Loan
required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f), the Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $1,000,000 or
(ii) equal to the remaining available balance of the applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may
request pursuant to Section 2.03. Each Lender may at its option make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided, however, that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that the Borrower
shall not be entitled to request any Borrowing that, if made, would result in
more than ten Eurodollar Borrowings outstanding hereunder at any time. For
purposes of the foregoing, Borrowings having different Interest Periods,
regardless of whether they commence on the same date, shall be considered
separate Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder on
the proposed date thereof by wire transfer of immediately available funds to
such account in New York City as the Administrative Agent may designate not
later than 12:00 (noon), New York City time, and the Administrative Agent
shall by 12:00 (noon), New York City time, credit the amounts so received to
an account with the Administrative Agent designated by the Borrower in the
applicable Borrowing Request, which account must be in the name of the
Borrower or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so
received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from
a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount
is repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing
and (ii) in the case of such Lender, a rate determined by the Administrative
Agent to represent its cost of overnight or short-term funds (which
determination shall be conclusive absent manifest error). If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
shall constitute such Lender's Loan as part of such Borrowing for purposes of
this Agreement.
(e) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Revolving Credit Maturity
Date.
(f) If any Issuing Bank shall not have received from the Borrower
any payment required to be made to such Issuing Bank pursuant to Section
2.22(e) within the time specified in such Section, such Issuing Bank will
promptly notify the Administrative Agent and the Administrative Agent will
promptly notify each Revolving Credit Lender of the amount of the L/C
Disbursement which shall not have been reimbursed and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of
immediately available funds to the Administrative Agent not later than 2:00
p.m., New York City time, on such date (or, if such Revolving Credit Lender
shall have received such notice later than 12:00 (noon), New York City time,
on any day, not later than 10:00 a.m., New York City time, on the immediately
following Business Day), an amount equal to such Lender's Pro Rata Percentage
of such L/C Disbursement (it being understood that such amount shall be deemed
to constitute an ABR Revolving Loan of such Lender and such payment shall be
deemed to have reduced the L/C Exposure), and the Administrative Agent will
promptly pay to such Issuing Bank amounts so received by it from the Revolving
Credit Lenders. The Administrative Agent will promptly pay to such Issuing
Bank any amounts received by it from the Borrower pursuant to Section 2.22(e)
prior to the time that any Revolving Credit Lender makes any payment pursuant
to this paragraph (f); any such amounts received by the Administrative Agent
thereafter will be promptly remitted by the Administrative Agent to the
Revolving Credit Lenders that shall have made such payments and to such
Issuing Bank, as their interests may appear. If any Revolving Credit Lender
shall not have made its Pro Rata Percentage of such L/C Disbursement available
to the Administrative Agent as provided above, such Lender and the Borrower
severally agree to pay interest on such amount, for each day from and
including the date such amount is required to be paid in accordance with this
paragraph to but excluding the date such amount is paid, to the Administrative
Agent at (i) in the case of the Borrower, a rate per annum equal to the
interest rate applicable to Revolving Loans pursuant to Section 2.06, and (ii)
in the case of such Lender, for the first such day, the Federal Funds
Effective Rate, and for each day thereafter, the Alternate Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing
(other than a deemed Borrowing pursuant to Section 2.02(f), as to which this
Section 2.03 shall not apply), the Borrower shall hand deliver or telecopy to
the Administrative Agent a duly completed Borrowing Request (a) in the case of
a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the same day as
the proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be
signed by or on behalf of the Borrower and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Term
Borrowing or a Revolving Credit Borrowing, and whether such Borrowing is to be
a Eurodollar Borrowing or an ABR Borrowing; provided, however, that, unless
the Required Lenders otherwise agree, no Eurodollar Borrowing shall be
requested or made if a Default or Event of Default has occurred and is
continuing; (ii) the date of such Borrowing (which shall be a Business Day),
(iii) the number and location of the account to which funds are to be
disbursed (which shall be an account that complies with the requirements of
Section 2.02(c)); (iv) the amount of such Borrowing; and (v) if such Borrowing
is to be a Eurodollar Borrowing, the Interest Period with respect thereto;
provided, however, that, notwithstanding any contrary specification in any
Borrowing Request, each requested Borrowing shall comply with the requirements
set forth in Section 2.02. If no election as to the Type of Borrowing is
specified in any such notice, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is
specified in any such notice, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. The Administrative Agent
shall promptly advise the applicable Lenders of any notice given pursuant to
this Section 2.03 (and the contents thereof), and of each Lender's portion of
the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent
for the account of each Lender the principal amount of each Term Loan of such
Lender as provided in Section 2.11 and the then unpaid principal amount of
each Revolving Loan on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable and paid such Lender
from time to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it
will record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) above shall be prima facie evidence of the existence
and amounts of the obligations therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligations of the
Borrower to repay the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the
event any Lender shall request and receive a promissory note payable to such
Lender and its registered assigns, the interests represented by such note
shall at all times (including after any assignment of all or part of such
interests pursuant to Section 9.04) be represented by one or more promissory
notes payable to the payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each
Lender, through the Administrative Agent, on the date hereof, on the last day
of March, June, September and December in each year and on each date on which
any Commitment of such Lender shall expire or be terminated as provided
herein, a commitment fee (a "Commitment Fee") equal to the Applicable
Percentage per annum in effect from time to time on the average daily unused
amount of the Commitments of such Lender in effect during the preceding
quarter (or other period commencing with the date of effectiveness of the
Commitments of such Lender or ending with the Revolving Credit Maturity Date
or the date on which the Commitments of such Lender shall expire or be
terminated). All Commitment Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days. The Commitments of each Lender
shall be deemed to have become effective on the date of acceptance by the
Borrower of a commitment of such Lender in respect of the credit facilities
established by this Agreement and shall cease to accrue on the date on which
the last of the Commitments of such Lender shall expire or be terminated as
provided herein.
(b) The Borrower agrees to pay to the Administrative Agent, for its
own account, the fees set forth in the Fee Letter at the times and in the
amounts specified therein (the "Administrative Agent Fees").
(c) The Borrower agrees to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on the last day of March, June, September
and December of each year and on the date on which the Revolving Credit
Commitment of such Lender shall have been terminated as provided herein and no
Letters of Credit shall remain outstanding, a fee (an "L/C Participation Fee")
on such Lender's Pro Rata Percentage of the average daily aggregate L/C
Exposure (excluding the portion thereof attributable to unreimbursed L/C
Disbursements) during the preceding quarter (or shorter period commencing with
the date hereof or ending with the Revolving Credit Maturity Date or the date
on which no Letters of Credit shall remain outstanding and the Revolving
Credit Commitments shall have been terminated) at a rate equal to the
Applicable Percentage from time to time used to determine the interest rate on
Revolving Credit Borrowings comprised of Eurodollar Loans pursuant to Section
2.06, and (ii) to each Issuing Bank with respect to each Letter of Credit
issued by such Issuing Bank the fronting fees separately agreed upon by the
Borrower and such Issuing Bank and the standard issuance and drawing fees
specified from time to time by such Issuing Bank (the "Issuing Bank Fees").
All L/C Participation Fees and Issuing Bank Fees shall be computed on the
basis of the actual number of days elapsed in a year of 360 days.
(d) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders, except that Issuing Bank Fees shall be paid
directly to the Issuing Bank entitled thereto. Once paid, none of the Fees
shall be refundable.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be, when the Alternate Base Rate is determined by
reference to the Prime Rate and over a year of 360 days at all other times) at
a rate per annum equal to the Alternate Base Rate.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum
equal to the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default in
the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, by acceleration or otherwise, or under any other Loan
Document, the Borrower shall on demand from time to time pay interest, to the
extent permitted by law, on such defaulted amount to but excluding the date of
actual payment (after as well as before judgment) (a) in the case of overdue
principal prior to the end of the Interest Period applicable to any Loan, at
the rate otherwise applicable to such Loan pursuant to Section 2.06 plus 2.00
percent per annum and (b) in all other cases, at a rate per annum (computed on
the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be, when determined by reference to the Prime Rate and over a
year of 360 days at all other times) equal to the sum of the Alternate Base
Rate plus 2.00 percent.
SECTION 2.08. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Administrative Agent shall
have determined that dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or that the rates at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to any Lender of making or
maintaining its Eurodollar Loan during such Interest Period, or that
reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, give written or
telecopy notice of such determination to the Borrower and the Lenders. In the
event of any such determination, until the Administrative Agent shall have
advised the Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, any request by the Borrower for a Eurodollar
Borrowing pursuant to Section 2.03 or 2.10 shall be deemed to be a request for
an ABR Borrowing. Each determination by the Administrative Agent hereunder
shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The
Tranche A Commitments shall automatically terminate at 5:00 p.m., New York
City time, on the earlier of the date of the closing of the Acquisition and
September 29, 1995. The Tranche B Commitments shall automatically terminate
at 5:00 p.m., New York City time, on the earlier of the date of the closing of
the Connector Purchase and September 30, 1998. The Revolving Credit
Commitments and the L/C Commitment shall automatically terminate on the
Revolving Credit Maturity Date. Notwithstanding the foregoing, all the
Commitments shall automatically terminate at 5:00 p.m., New York City time, on
September 29, 1995, if the first Credit Event shall not have occurred by such
time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Tranche A Commitments, the Tranche B Commitments or the Revolving Credit
Commitments; provided, however, that (i) each partial reduction of the Tranche
A Commitments, the Tranche B Commitments or the Revolving Credit Commitments
shall be in an integral multiple of $1,000,000 and in a minimum amount of
$5,000,000, (ii) the Total Revolving Credit Commitment shall not be reduced to
an amount that is less than the Aggregate Revolving Credit Exposure at the
time, unless Section 2.13(a) is complied with, and (iii) the Borrower may not
in any event terminate or reduce the Tranche B Commitments prior to the
closing of the Connector Purchase.
(c) The Total Revolving Credit Commitment shall be automatically
and permanently reduced by $10,000,000 on each of the second and third
anniversaries of the Closing Date unless the Designated Financial Tests shall
have been satisfied for a complete fiscal quarter prior to the due date for
such reduction.
(d) Each reduction in the Tranche A Commitments, the Tranche B
Commitments or the Revolving Credit Commitments hereunder shall be made
ratably among the Lenders in accordance with their respective applicable
Commitments. The Borrower shall pay to the Administrative Agent for the
account of the applicable Lenders, on the date of each termination or
reduction, the Commitment Fees on the amount of the Commitments so terminated
or reduced accrued to but excluding the date of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The
Borrower shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 11:00 a.m., New York City time, on the
date of conversion, to convert one or more Eurodollar Borrowings into an ABR
Borrowing, (b) not later than 11:00 a.m., New York City time, three Business
Days prior to conversion or continuation, to convert one or more ABR
Borrowings into Eurodollar Borrowings or to continue one or more Eurodollar
Borrowings as a Eurodollar Borrowing for an additional Interest Period, and
(c) not later than 11:00 a.m., New York City time, three Business Days prior
to conversion, to convert the Interest Period with respect to any Eurodollar
Borrowing to another permissible 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 Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing shall
satisfy the limitations specified in Sections 2.02(a) and 2.02(b) regarding
the principal amount and maximum number of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new Loan
of such Lender resulting from such conversion and reducing the Loan or Loans
(or portion thereof) of such Lender being converted by an equivalent principal
amount; accrued interest on any Eurodollar Loan (or portion thereof) being
converted shall be paid by the Borrower at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.16;
(v) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar
Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be converted
into or continued as a Eurodollar Borrowing by reason of the immediately
preceding clause shall be automatically converted at the end of the Interest
Period in effect for such Borrowing into an ABR Borrowing;
(vii) no Interest Period may be selected for any Eurodollar Term
Borrowing that would end later than a Term Loan Repayment Date occurring on or
after the first day of such Interest Period if, after giving effect to such
selection, the aggregate outstanding amount of (A) the Eurodollar Term
Borrowings with Interest Periods ending on or prior to such Term Loan
Repayment Date and (B) the ABR Term Borrowings would not be at least equal to
the principal amount of Term Borrowings to be paid on such Term Loan Repayment
Date; and
(viii) no Borrowing may be converted to or continued as a Eurodollar
Borrowing (A) unless the Required Lenders otherwise consent, if an Event of
Default shall have occurred and be continuing or (B) if a Default shall have
occurred and be continuing and the Required Lenders shall have determined that
such conversion or continuation is not appropriate.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing or Borrowings that the Borrower requests be converted or continued,
(ii) whether such Borrowing or Borrowings are to be converted to or continued
as a Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a
conversion, the date of such conversion (which shall be a Business Day) and
(iv) if such Borrowing or Borrowings are to be converted to or continued as a
Eurodollar Borrowing, 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 Eurodollar Borrowing, the Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall advise the Lenders of any notice given pursuant to this Section
2.10 and of each Lender's portion of any converted or continued Borrowing. If
the Borrower shall not have given notice in accordance with this Section 2.10
to continue any Borrowing into a subsequent Interest Period (and shall not
otherwise have given notice in accordance with this Section 2.10 to convert
such Borrowing), such Borrowing shall, at the end of the Interest Period
applicable thereto (unless repaid pursuant to the terms hereof), automatically
be continued into a new Interest Period as an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) (i) The Borrower
shall repay the Tranche A Term Borrowings in 20 consecutive installments
payable on the dates (each such date being a "Tranche A Term Loan Repayment
Date"), and in the amounts (each such amount, as adjusted from time to time
pursuant to Sections 2.12 and 2.13(d), being a "Tranche A Term Loan Repayment
Amount") set forth below:
<TABLE>
<CAPTION>
Date Amount
- - - - --------- ------------
<S> <C>
12/31/1995 $2,500,000
3/31/1996 $2,500,000
6/30/1996 $2,500,000
9/30/1996 $2,500,000
2/31/1996 $2,500,000
3/31/1997 $2,500,000
6/30/1997 $2,500,000
9/30/1997 $2,500,000
12/31/1997 $2,500,000
3/31/1998 $2,500,000
6/30/1998 $2,500,000
9/30/1998 $2,500,000
12/31/1998 $5,000,000
3/31/1999 $5,000,000
6/30/1999 $5,000,000
9/30/1999 $5,000,000
12/31/1999 $2,500,000
3/31/2000 $2,500,000
6/30/2000 $2,500,000
9/30/2000 $2,500,000
</TABLE>
(b) The Borrower shall repay the Tranche B Term Borrowings in equal
quarterly installments on the last day of each fiscal quarter of the Borrower,
commencing on the last day of the first complete fiscal quarter of the
Borrower beginning after the date of the Tranche B Term Borrowings and ending
on and including the Tranche B Maturity Date (each such date being a "Tranche
B Term Loan Repayment Date"), each such installment to equal the original
amount of the first Tranche B Term Borrowings divided by the number of Tranche
B Term Loan Repayment Dates (each such amount, as adjusted from time to time
pursuant to Sections 2.12 and 2.13(d), being a "Tranche B Term Loan Repayment
Amount").
(c) To the extent not previously paid, all Tranche A Term Loans and
Tranche B Term Loans shall be due and payable on the Tranche A Maturity Date
and Tranche B Maturity Date, respectively, together with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of
payment.
(d) All repayments of Eurodollar Borrowings pursuant to this
Section 2.11 shall be accompanied by accrued and unpaid interest thereon to
but excluding the date of such repayment. All repayments pursuant to this
Section 2.11 shall be subject to Section 2.16, but shall otherwise be without
premium or penalty.
SECTION 2.12. Optional Prepayments. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing, in whole
or in part, (i) in the case of a Eurodollar Borrowing, upon at least three
Business Days' prior written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Administrative Agent given
before 11:00 a.m., New York City time and (ii) in the case of an ABR
Borrowing, by written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Administrative Agent given
before 11:00 a.m., New York City time, on the date of repayment; provided,
however, that each partial prepayment shall be in an amount that is an
integral multiple of $1,000,000.
(b) Optional prepayments of Term Loans shall be allocated pro rata
between the then-outstanding Tranche A Term Loans and Tranche B Term Loans and
applied pro rata against the remaining scheduled installments of principal due
in respect of the Tranche A Term Loans and Tranche B Term Loans under Sections
2.11(a) and (b), respectively.
(c) Each notice of prepayment shall specify the prepayment date and
the principal amount of each Borrowing (or portion thereof) to be prepaid,
shall be irrevocable and shall commit the Borrower to prepay such Borrowing by
the amount stated therein on the date stated therein. All prepayments under
this Section 2.12 shall be subject to Section 2.16 but otherwise without
premium or penalty. All prepayments of Eurodollar Borrowings under this
Section 2.12 shall be accompanied by accrued and unpaid interest on the
principal amount being prepaid to but excluding the date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments, the Borrower shall repay
or prepay all its outstanding Revolving Credit Borrowings on the date of such
termination and cash collateralize the entire L/C Exposure pursuant to Section
2.22(j). In the event of any reduction of the Revolving Credit Commitments,
then (i) at or prior to the effective date of such reduction, the
Administrative Agent shall notify the Borrower and the Revolving Credit
Lenders of the Aggregate Revolving Credit Exposure after giving effect thereto
and (ii) if the Aggregate Revolving Credit Exposure would exceed the Total
Revolving Credit Commitment after giving effect to such reduction, then the
Borrower shall, on the date of such reduction, repay or prepay Revolving
Credit Borrowings in an amount sufficient to eliminate such excess, and if,
after giving effect to such payment or prepayment, the aggregate L/C Exposure
of all the Lenders would exceed the Total Revolving Credit Commitment, the
Borrower shall, on such date, cash collateralize, pursuant to Section 2.22(j),
such excess aggregate L/C Exposure or cause the termination of outstanding
Letters of Credit in an amount sufficient to eliminate such excess.
(b) The Borrower shall apply all Net Proceeds promptly upon receipt
thereof by the Borrower or any Subsidiary to prepay outstanding Term Loans in
accordance with paragraph (d) below.
(c) No later than the earlier of (i) 90 days after the end of each
fiscal year of the Borrower, commencing with the fiscal year ending on
December 31, 1996, and (ii) the date on which the financial statements with
respect to such fiscal year are delivered pursuant to Section 5.04(a), the
Borrower shall prepay outstanding Term Loans in accordance with Section
2.13(d) in an aggregate principal amount equal to 50 percent of Excess Cash
Flow for such fiscal year, unless the Designated Financial Tests shall have,
for a period of at least one complete fiscal quarter, been satisfied.
(d) Mandatory prepayments of outstanding Term Loans under this
Agreement shall be allocated pro rata between the then-outstanding Tranche A
Term Loans and Tranche B Term Loans, and applied pro rata against the
remaining scheduled installments of principal due in respect of Tranche A Term
Loans and Tranche B Term Loans under Sections 2.11(a) and (b), respectively.
Notwithstanding anything in this Agreement to the contrary, subsequent to the
closing of the Connector Purchase, all prepayments under this Section 2.13
shall be allocated pro rata among the then outstanding Tranche A Term Loans,
Tranche B Term Loans and term loans made under the Gilbert Credit Agreement.
(e) The Borrower shall deliver to the Administrative Agent, at the
time of each prepayment required under this Section 2.13, (i) a certificate
signed by a Financial Officer of the Borrower setting forth in reasonable
detail the calculation of the amount of such prepayment and (ii) to the extent
practicable, at least three days prior written notice of such prepayment.
Each notice of prepayment shall specify the prepayment date, the Type of each
Loan being prepaid and the principal amount of each Loan (or portion thereof)
to be prepaid. All prepayments of Eurodollar Borrowings under this Section
2.13 shall be accompanied by accrued and unpaid interest to but excluding the
date of payment. All prepayments of Borrowings under this Section 2.13 shall
be subject to Section 2.16, but shall otherwise be without premium or penalty.
(f) Amounts to be applied pursuant to this Section 2.13 to the
prepayment of Term Loans and Revolving Loans shall be applied, as applicable,
first to reduce outstanding ABR Term Loans and ABR Revolving Loans. Any
amounts remaining after each such application shall, at the option of the
Borrower, be applied to prepay Eurodollar Term Loans or Eurodollar Revolving
Loans, as the case may be, immediately and/or shall be deposited in the
Prepayment Account (as defined below). The Administrative Agent shall apply
any cash deposited in the Prepayment Account (i) allocable to Term Loans to
prepay Eurodollar Term Loans and (ii) allocable to Revolving Loans to prepay
Eurodollar Revolving Loans, in each case on the last day of their respective
Interest Periods (or, at the direction of the Borrower, on any earlier date)
until all outstanding Term Loans or Revolving Loans, as the case may be, have
been prepaid or until all the allocable cash on deposit with respect to such
Loans has been exhausted. For purposes of this Agreement, the term
"Prepayment Account" shall mean an account established by the Borrower with
the Administrative Agent and over which the Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal
for application in accordance with this paragraph (h). The Administrative
Agent will, at the request of the Borrower, invest amounts on deposit in the
Prepayment Account in Permitted Investments that mature prior to the last day
of the applicable Interest Periods of the Eurodollar Term Borrowings or
Eurodollar Revolving Borrowings to be prepaid, as the case may be; provided,
however, that (i) the Administrative Agent shall not be required to make any
investment that, in its sole judgment, would require or cause the
Administrative Agent to be in, or would result in any, violation of any law,
statute, rule or regulation and (ii) the Administrative Agent shall have no
obligation to invest amounts on deposit in the Prepayment Account if a Default
or Event of Default shall have occurred and be continuing. The Borrower shall
indemnify the Administrative Agent for any losses relating to the investments
so that the amount available to prepay Eurodollar Borrowings on the last day
of the applicable Interest Period is not less than the amount that would have
been available had no investments been made pursuant thereto. Other than any
interest earned on such investments, the Prepayment Account shall not bear
interest. Interest or profits, if any, on such investments shall be deposited
in the Prepayment Account and reinvested and disbursed as specified above. If
the maturity of the Loans has been accelerated pursuant to Article VII, the
Administrative Agent may, in its sole discretion, apply all amounts on deposit
in the Prepayment Account to satisfy any of the Obligations. The Borrower
hereby grants to the Administrative Agent, for its benefit and the benefit of
the Issuing Banks and the Lenders, a security interest in the Prepayment
Account to secure the Obligations.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of
this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall change the basis of taxation of payments to any Lender or
any Issuing Bank of the principal of or interest on any Eurodollar Loan made
by such Lender or any Fees or other amounts payable hereunder (other than
changes in respect of taxes imposed on the overall net income of such Lender
or such Issuing Bank by the jurisdiction in which such Lender or such Issuing
Bank has its principal office or by any political subdivision or taxing
authority therein), or shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of or credit extended by any Lender or any Issuing Bank (except
any such reserve requirement which is reflected in the Adjusted LIBO Rate) or
shall impose on such Lender or such Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans made
by such Lender or any Letter of Credit or participation therein, and the
result of any of the foregoing shall be to increase the cost to such Lender or
such Issuing Bank of making or maintaining any Eurodollar Loan or increase the
cost to any Lender or such Issuing Bank of issuing or maintaining any Letter
of Credit or purchasing or maintaining a participation therein or to reduce
the amount of any sum received or receivable by such Lender or such Issuing
Bank hereunder (whether of principal, interest or otherwise) by an amount
deemed by such Lender or such Issuing Bank to be material, then the Borrower
will pay to such Lender or such Issuing Bank, as the case may be, upon demand
such additional amount or amounts as will compensate such Lender or such
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or any Issuing Bank shall have determined that
the adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in
any such law, rule, regulation, agreement or guideline (whether such law,
rule, regulation, agreement or guideline has been adopted) or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof, or compliance by any Lender
(or any lending office of such Lender) or any Issuing Bank or any Lender's or
any Issuing Bank's holding company with any request or directive regarding
capital adequacy (whether or not having the force of law) of any Governmental
Authority has or would have the effect of reducing the rate of return on such
Lender's or such Issuing Bank's capital or on the capital of such Lender's or
such Issuing Bank's holding company, if any, as a consequence of this
Agreement or the Loans made or participations in Letters of Credit purchased
by such Lender pursuant hereto or the Letters of Credit issued by such Issuing
Bank pursuant hereto to a level below that which such Lender or such Issuing
Bank or such Lender's or such Issuing Bank's holding company could have
achieved but for such applicability, adoption, change or compliance (taking
into consideration such Lender's or such Issuing Bank's policies and the
policies of such Lender's or such Issuing Bank's holding company with respect
to capital adequacy) by an amount deemed by such Lender or such Issuing Bank
to be material, then from time to time the Borrower shall pay to such Lender
or such Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or such Issuing Bank or such Lender's or the
Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or any Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or such Issuing Bank or
its holding company, as applicable, as specified in paragraph (a) or (b) above
shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender or such Issuing Bank the amount
shown as due on any such certificate delivered by it within 10 days after its
receipt of the same.
(d) Failure or delay on the part of any Lender or any Issuing Bank
to demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital shall not constitute
a waiver of such Lender's or such Issuing Bank's right to demand such
compensation; provided, however, that any Lender or any Issuing Bank may not
demand compensation under this Section 2.14 for any period commencing earlier
than 180 days prior to such demand. The protection of this Section 2.14 shall
be available to each Lender and each Issuing Bank regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
agreement, guideline or other change or condition that shall have occurred or
been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the date hereof, any change in any law
or regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it
unlawful for any Lender to make or maintain any Eurodollar Loan or to give
effect to its obligations as contemplated hereby with respect to any
Eurodollar Loan, then, by written notice to the Borrower and to the
Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such Lender
hereunder (or be continued for additional Interest Periods and ABR Loans will
not thereafter (for such duration) be converted into Eurodollar Loans),
whereupon any request for a Eurodollar Borrowing (or to convert an ABR
Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing for
an additional Interest Period) shall, as to such Lender only, be deemed a
request for an ABR Loan (or a request to continue an ABR Loan as such for an
additional Interest Period or to convert a Eurodollar Loan into an ABR Loan,
as the case may be), unless such declaration shall be subsequently withdrawn;
and
(ii) such Lender may require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied
to repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay
the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by
any Lender shall be effective as to each Eurodollar Loan made by such Lender,
if lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (a) such Lender
receiving or being deemed to receive any amount on account of the principal of
any Eurodollar Loan prior to the end of the Interest Period in effect
therefor, (b) the conversion of any Eurodollar Loan to an ABR Loan, or the
conversion of the Interest Period with respect to any Eurodollar Loan, in each
case other than on the last day of the Interest Period in effect therefor, or
(c) any Eurodollar Loan to be made by such Lender (including any Eurodollar
Loan to be made pursuant to a conversion or continuation under Section 2.10)
not being made after notice of such Loan shall have been given by the Borrower
hereunder (any of the events referred to in this sentence being called a
"Breakage Event"). Such loss shall include an amount equal to the excess, as
reasonably determined by such Lender, of (i) its cost of obtaining funds for
the Eurodollar Loan that is the subject of such Breakage Event for the period
from the date of such Breakage Event to the last day of the Interest Period in
effect (or that would have been in effect) for such Loan over (ii) the amount
of interest likely to be realized by such Lender in redeploying the funds
released or not utilized by reason of such Breakage Event for such period. A
certificate of any Lender setting forth any amount or amounts which such
Lender is entitled to receive pursuant to this Section 2.16 shall be delivered
to the Borrower and shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as required under Section
2.14, 2.15 or 2.16, each Borrowing, each payment or prepayment of principal of
any Borrowing, each payment of interest on the Loans, each payment of the
Commitment Fees, each reduction of the Tranche A Commitments, Tranche B
Commitments or the Revolving Credit Commitments and each refinancing of any
Borrowing with, conversion of any Borrowing to or continuation of any
Borrowing as a Borrowing of any Type shall be allocated pro rata among the
Lenders in accordance with their respective applicable Commitments (or, if
such Commitments shall have expired or been terminated, in accordance with the
respective principal amounts of their outstanding Loans). Each Lender agrees
that in computing such Lender's portion of any Borrowing to be made hereunder,
the Administrative Agent may, in its discretion, round each Lender's
percentage of such Borrowing to the next higher or lower whole dollar amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or
counterclaim against the Borrower, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, obtain payment (voluntary or involuntary) in
respect of any Loan or Loans or L/C Disbursement as a result of which the
unpaid principal portion of its Tranche A Term Loans, Tranche B Term Loans and
Revolving Loans and participations in L/C Disbursements shall be
proportionately less than the unpaid principal portion of the Tranche A Term
Loans, Tranche B Term Loans and Revolving Loans and participations in L/C
Disbursements of any other Lender, it shall be deemed simultaneously to have
purchased from such other Lender at face value, and shall promptly pay to such
other Lender the purchase price for, a participation in the Tranche A Term
Loans, Tranche B Term Loans and Revolving Loans and L/C Exposure, as the case
may be of such other Lender, so that the aggregate unpaid principal amount of
the Tranche A Term Loans, Tranche B Term Loans and Revolving Loans and L/C
Exposure and participations in Tranche A Term Loans, Tranche B Term Loans and
Revolving Loans and L/C Exposure held by each Lender shall be in the same
proportion to the aggregate unpaid principal amount of all Tranche A Term
Loans, Tranche B Term Loans and Revolving Loans and L/C Exposure then
outstanding as the principal amount of its Tranche A Term Loans, Tranche B
Term Loans and Revolving Loans and L/C Exposure prior to such exercise of
banker's lien, setoff or counterclaim or other event was to the principal
amount of all Tranche A Term Loans, Tranche B Term Loans and Revolving Loans
and L/C Exposure outstanding prior to such exercise of banker's lien, setoff
or counterclaim or other event; provided, however, that if any such purchase
or purchases or adjustments shall be made pursuant to this Section and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Term Loan or Revolving Loan or L/C
Disbursement deemed to have been so purchased may exercise any and all rights
of banker's lien, setoff or counterclaim with respect to any and all moneys
owing by the Borrower to such Lender by reason thereof as fully as if such
Lender had made a Loan directly to the Borrower in the amount of such
participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement
or any Fees or other amounts) hereunder and under any other Loan Document not
later than 12:00 (noon), New York City time, on the date when due in
immediately available dollars, without setoff, defense or counterclaim. Each
such payment (other than Issuing Bank Fees, which shall be paid directly to
the Issuing Bank entitled thereto) shall be made to the Administrative Agent
at its offices at 270 Park Avenue, New York, New York.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation
of interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by the Borrower
hereunder and under any other Loan Document shall be made, in accordance with
Section 2.19, free and clear of and without deduction for any and all current
or future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding (i) income taxes imposed on the
net income of the Administrative Agent, any Lender or any Issuing Bank (or any
transferee or assignee thereof, including a participation holder (any such
entity a "Transferee")) and (ii) franchise taxes imposed on the net income of
the Administrative Agent, any Lender or any Issuing Bank (or Transferee), in
each case by the jurisdiction under the laws of which the Administrative
Agent, such Lender or such Issuing Bank (or Transferee) is organized or any
political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities, collectively or
individually, being called "Taxes"). If the Borrower shall be required to
deduct any Taxes from or in respect of any sum payable hereunder or under any
other Loan Document to the Administrative Agent, any Lender or any Issuing
Bank (or any Transferee), (i) the sum payable shall be increased by the amount
(an "additional amount") necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.20) the Administrative Agent, such Lender or such Issuing Bank
(or Transferee), as the case may be, shall receive an amount equal to the sum
it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrower agrees to pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under any other
Loan Document or from the execution, delivery or registration of, or otherwise
with respect to, this Agreement or any other Loan Document ("Other Taxes").
(c) The Borrower will indemnify the Administrative Agent, each
Lender and each Issuing Bank (or Transferee) for the full amount of Taxes and
Other Taxes paid by the Administrative Agent, such Lender or such Issuing Bank
(or Transferee), as the case may be, and any liability (including penalties,
interest and expenses (including reasonable attorney's fees and expenses),
other than penalties, interest or expenses arising out of the gross negligence
of such person), net of any related payments under paragraph (a) or (b) above,
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
prepared by the Administrative Agent, a Lender or an Issuing Bank (or
Transferee), or the Administrative Agent on its behalf, absent manifest error,
shall be final, conclusive and binding for all purposes. Such indemnification
shall be made within 30 days after the date the Administrative Agent, any
Lender or any Issuing Bank (or Transferee), as the case may be, makes written
demand therefor.
(d) If the Administrative Agent, any Lender or any Issuing Bank (or
Transferee) receives a refund in respect of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.20, it shall
within 30 days from the date of such receipt pay over such refund to the
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 2.20 with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or such Issuing Bank (or
Transferee) and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund); provided, however, that
the Borrower, upon the request of the Administrative Agent, such Lender or
such Issuing Bank (or Transferee), shall repay the amount paid over to the
Borrower (plus penalties, interest or other charges) to the Administrative
Agent, such Lender or such Issuing Bank (or Transferee) in the event the
Administrative Agent, such Lender or such Issuing Bank (or Transferee) is
required to repay such refund to such Governmental Authority.
(e) As soon as practicable after the date of any payment of Taxes
or Other Taxes by the Borrower to the relevant Governmental Authority, the
Borrower will deliver to the Administrative Agent, at its address referred to
in Section 9.01, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section
2.20 shall survive the payment in full of the principal of and interest on all
Loans made hereunder, the expiration or cancellation of all Letters of Credit
and the reimbursement of all draws thereunder.
(g) Each Lender (or Transferee) that is organized under the laws of
a jurisdiction other than the United States, any State thereof or the District
of Columbia (a "Non-U.S. Lender") shall deliver to the Borrower and the
Administrative Agent two copies of either United States Internal Revenue
Service Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S.
Lender delivers a Form W-8, a certificate representing that such Non-U.S.
Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-
percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code)
of the Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming complete
exemption from, or reduced rate of, U.S. Federal withholding tax on payments
by the Borrower under this Agreement and the other Loan Documents. Such forms
shall be delivered by each Non-U.S. Lender on or before the date it becomes a
party to this Agreement (or, in the case of a Transferee that is a
participation holder, on or before the date such participation holder becomes
a Transferee hereunder) and on or before the date, if any, such Non-U.S.
Lender changes its applicable lending office by designating a different
lending office (a "New Lending Office"). In addition, each Non-U.S. Lender
shall deliver such forms promptly upon the obsolescence or invalidity of any
form previously delivered by such Non-U.S. Lender. Notwithstanding any other
provision of this Section 2.20(g), a Non-U.S. Lender shall not be required to
deliver any form pursuant to this Section 2.20(g) that such Non-U.S. Lender
is not legally able to deliver.
(h) The Borrower shall not be required to indemnify any Non-U.S.
Lender or to pay any additional amounts to any Non-U.S. Lender, in respect of
United States Federal withholding tax pursuant to paragraph (a) or (c) above
to the extent that (i) the obligation to withhold amounts with respect to
United States Federal withholding tax existed on the date such Non-U.S. Lender
became a party to this Agreement (or, in the case of a Transferee that is a
participation holder, on the date such participation holder became a
Transferee hereunder) or, with respect to payments to a New Lending Office,
the date such Non-U.S. Lender designated such New Lending Office with respect
to a Loan; provided, however, that this paragraph (h) shall not apply (x) to
any Transferee or New Lending Office that becomes a Transferee or New Lending
Office as a result of an assignment, participation, transfer or designation
made at the request of the Borrower and (y) to the extent the indemnity
payment or additional amounts any Transferee, or any Lender (or Transferee),
acting through a New Lending Office, would be entitled to receive (without
regard to this paragraph (h)) do not exceed the indemnity payment or
additional amounts that the person making the assignment, participation or
transfer to such Transferee, or Lender (or Transferee) making the designation
of such New Lending Office, would have been entitled to receive in the absence
of such assignment, participation, transfer or designation or (ii) the
obligation to pay such additional amounts would not have arisen but for a
failure by such Non-U.S. Lender to comply with the provisions of paragraph (g)
above.
(i) Nothing contained in this Section 2.20 shall require any Lender
or any Issuing Bank (or any Transferee) or the Administrative Agent to make
available any of its tax returns (or any other information that it deems to be
confidential or proprietary).
SECTION 2.21. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate. (a) In the event (i) any Lender or any
Issuing Bank delivers a certificate requesting compensation pursuant to
Section 2.14, (ii) any Lender or any Issuing Bank delivers a notice described
in Section 2.15 or (iii) the Borrower is required to pay any additional amount
to any Lender or any Issuing Bank or any Governmental Authority on account of
any Lender or any Issuing Bank pursuant to Section 2.20, the Borrower may, at
its sole expense and effort, upon notice to such Lender or such Issuing Bank
and the Administrative Agent, require such Lender or such Issuing Bank to
transfer and assign, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all of its interests, rights and
obligations under this Agreement to an assignee that shall assume such
assigned obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided, however, that (x) such assignment shall
not conflict with any law, rule or regulation or order of any court or other
Governmental Authority having jurisdiction, (y) the Borrower shall have
received the prior written consent of the Administrative Agent (and, if a
Revolving Credit Commitment is being assigned, of each Issuing Bank), which
consent shall not unreasonably be withheld, and (z) the Borrower or such
assignee shall have paid to the affected Lender or Issuing Bank in immediately
available funds an amount equal to the sum of the principal of and interest
accrued to the date of such payment on the outstanding Loans and
participations in L/C Disbursements of such Lender or such Issuing Bank plus
all Fees and other amounts accrued for the account of such Lender or such
Issuing Bank hereunder (including any amounts under Sections 2.14, 2.15 and
2.16); provided further that, if prior to any such transfer and assignment the
circumstances or event that resulted in such Lender's or such Issuing Bank's
claim for compensation under Section 2.14 or notice under Section 2.15 or the
amounts paid pursuant to Section 2.20, as the case may be, cease to cause such
Lender or such Issuing Bank to suffer increased costs or reductions in amounts
received or receivable or reduction in return on capital, or cease to have the
consequences specified in Section 2.15, or cease to result in amounts being
payable under Section 2.20, as the case may be (including as a result of any
action taken by such Lender or such Issuing Bank pursuant to paragraph (b)
below), or if such Lender or such Issuing Bank shall waive its right to claim
further compensation under Section 2.14 in respect of such circumstances or
event or shall withdraw its notice under Section 2.15 or shall waive its right
to further payments under Section 2.20 in respect of such circumstances or
event, as the case may be, then such Lender or such Issuing Bank shall not
thereafter be required to make any such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request
compensation under Section 2.14, (ii) any Lender or any Issuing Bank delivers
a notice described in Section 2.15 or (iii) the Borrower is required to pay
any additional amount to any Lender or any Issuing Bank or any Governmental
Authority on account of any Lender or any Issuing Bank, pursuant to Section
2.20 (including as a result of any exercise by a Lender of its option
described in Section 2.02(b)), then such Lender or such Issuing Bank shall use
reasonable efforts (which shall not require such Lender or such Issuing Bank
to incur an unreimbursed loss or unreimbursed cost or expense or otherwise
take any action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer
its obligations hereunder to another of its offices, branches or affiliates,
if such filing or assignment would reduce its claims for compensation under
Section 2.14 or enable it to withdraw its notice pursuant to Section 2.15 or
would reduce amounts payable pursuant to Section 2.20, as the case may be, in
the future. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender or any Issuing Bank in connection with any
such filing or assignment, delegation and transfer.
SECTION 2.22. Letters of Credit. (a) General. The Borrower may
request any Issuing Bank to issue a Letter of Credit, in a form reasonably
acceptable to the Administrative Agent and such Issuing Bank, appropriately
completed, for the account of the Borrower, at any time and from time to time
while the Revolving Credit Commitments remain in effect. This Section 2.22
shall not be construed to impose an obligation upon any Issuing Bank to issue
any Letter of Credit that is inconsistent with the terms and conditions of
this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to
amend, renew or extend an existing Letter of Credit), the Borrower shall hand
deliver or telecopy to the applicable Issuing Bank and the Administrative
Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, the
date of issuance, amendment, renewal or extension, the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) below),
the amount of such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare such
Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if, and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that,
after giving effect to such issuance, amendment, renewal or extension (A) the
L/C Exposure shall not exceed $5,000,000 and (B) the Aggregate Revolving
Credit Exposure shall not exceed the Total Revolving Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the
close of business on the earlier of the date one year after the date of the
issuance of such Letter of Credit and the date that is five Business Days
prior to the Revolving Credit Maturity Date, unless such Letter of Credit
expires by its terms on an earlier date.
(d) Participations. By the issuance of a Letter of Credit and
without any further action on the part of the applicable Issuing Bank or the
Lenders, such Issuing Bank hereby grants to each Lender, and each such Lender
hereby acquires from such Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Pro Rata Percentage of the aggregate amount
available to be drawn under such Letter of Credit, effective upon the issuance
of such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of any Issuing Bank, such Lender's
Pro Rata Percentage of each L/C Disbursement made by such Issuing Bank and not
reimbursed by the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) forthwith on the date due as
provided in Section 2.02(f). Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or an Event of Default, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If any Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, the Borrower shall pay to the
Administrative Agent an amount equal to such L/C Disbursement not later than
two hours after the Borrower shall have received notice from the Issuing Bank
that payment of such draft will be made, or, if the Borrower shall have
received such notice later than 10:00 a.m., New York City time, on any
Business Day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse
L/C Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit
or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that
the Borrower, any other party guaranteeing, or otherwise obligated with, the
Borrower, any Subsidiary or other Affiliate thereof or any other person may at
any time have against the beneficiary under any Letter of Credit, the
applicable Issuing Bank, the Administrative Agent or any Lender or any other
person, whether in connection with this Agreement, any other Loan Document or
any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(v) payment by the applicable Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply with
the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
applicable Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not similar
to any of the foregoing, that might, but for the provisions of this Section
2.22, constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the applicable Issuing Bank.
However, the foregoing shall not be construed to excuse any Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by such Issuing Bank's gross negligence or wilful misconduct
or failure to examine drafts and other documents presented under a Letter of
Credit to determine whether such drafts and other documents presented under a
Letter of Credit comply with the terms thereof; it is understood that any
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary and, in making any payment under any Letter of
Credit (i) any Issuing Bank's exclusive reliance on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to
such Letter of Credit proves to be insufficient in any respect, if such
document on its face appears to be in order, and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged or invalid or any statement therein proves to be
inaccurate or untrue in any respect whatsoever and (ii) any noncompliance in
any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the applicable Issuing Bank.
(g) Disbursement Procedures. Each Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit issued by such Issuing Bank. Each
Issuing Bank shall as promptly as possible give telephonic notification,
confirmed by telecopy, to the Administrative Agent and the Borrower of such
demand for payment and whether such Issuing Bank has made or will make an L/C
Disbursement thereunder; provided, however, that any failure to give or delay
in giving such notice shall not relieve the Borrower of its obligation to
reimburse such Issuing Bank and the Revolving Credit Lenders with respect to
any such L/C Disbursement. The Administrative Agent shall promptly give each
Revolving Credit Lender notice thereof.
(h) Interim Interest. If any Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower shall
reimburse such L/C Disbursement in full on such date, the unpaid amount
thereof shall bear interest for the account of such Issuing Bank, for each day
from and including the date of such L/C Disbursement, to but excluding the
earlier of the date of payment by the Borrower or the date on which interest
shall commence to accrue thereon as provided in Section 2.02(f), at the rate
per annum that would apply to such amount if such amount were an ABR Loan.
(i) Resignation or Removal of any Issuing Bank; Additional Issuing
Banks. Any Issuing Bank may resign at any time by giving 180 days' prior
written notice to the Administrative Agent, the Lenders and the Borrower, and
may be removed at any time by the Borrower by notice to such Issuing Bank, the
Administrative Agent and the Lenders. The Borrower may appoint additional
Issuing Banks reasonably satisfactory to the Administrative Agent, and upon
the acceptance of any appointment as an Issuing Bank hereunder by a Lender
that shall agree to serve as an Issuing Bank, such successor shall succeed to
and become vested with all the interests, rights and obligations of an Issuing
Bank; provided, however, that there shall not be more than three Issuing Banks
at any time. Upon resignation or removal, an Issuing Bank shall be discharged
from its obligations to issue additional Letters of Credit hereunder. At the
time such resignation or removal shall become effective, the Borrower shall
pay all accrued and unpaid Issuing Bank Fees due to such Issuing Bank. The
acceptance of any appointment as an Issuing Bank hereunder by a Lender shall
be evidenced by an agreement entered into by such Lender, in a form
satisfactory to the Borrower and the Administrative Agent, and, from and after
the effective date of such agreement, (i) such Lender shall have all the
rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents and (ii) references herein and in the other Loan Documents to
the term "Issuing Bank" shall be deemed to refer to such additional Issuing
Bank and to any previously appointed Issuing Bank, or to such successor and
all previously appointed Issuing Banks, as the context shall require. After
the resignation or removal of an Issuing Bank hereunder, such Issuing Bank
shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement and the other Loan
Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If (i) any Event of Default shall
occur and be continuing and the Administrative Agent or the Required Lenders
shall demand that the L/C Exposure be cash collateralized, (ii) the maturity
of the Loans shall be accelerated pursuant to Article VIII or (iii) the
Borrower shall be required to provide cash collateral for a portion of the L/C
Exposure pursuant to Section 2.13(a), the Borrower shall deposit in an account
with the Collateral Agent, for the benefit of the Revolving Credit Lenders, an
amount in cash equal to the L/C Exposure (or, in the case of a deposit
pursuant to clause (iii) above, the portion of the L/C Exposure required to be
collateralized) as of such date. Such deposit shall be held by the Collateral
Agent as collateral for the payment and performance of the Obligations. The
Collateral Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits in Permitted Investments, which
investments shall be made at the option and sole discretion of the Collateral
Agent, such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account
shall (i) automatically be applied by the Administrative Agent to reimburse
each Issuing Bank for L/C Disbursements for which it has not been reimbursed,
(ii) be held for the satisfaction of the reimbursement obligations of the
Borrower for the L/C Exposure at such time and (iii) if the maturity of the
Loans has been accelerated (but subject to the consent of Revolving Credit
Lenders holding participations in outstanding Letters of Credit representing
greater than 50 percent of the aggregate undrawn amount of all outstanding
Letters of Credit), be applied to satisfy other Obligations. If the Borrower
is required to provide an amount of cash collateral hereunder (x) as a result
of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived and or (y) pursuant
to Section 2.13(a), such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within three Business Days after the elimination
the excess of the aggregate L/C Exposure over the Total Revolving Credit
Commitment.
(k) Existing Letters of Credit. The letters of credit listed on
Schedule 6.01 and issued by the Bank of Boston shall be deemed to be Letters
of Credit and, only as to such Letters of Credit, The First National Bank of
Boston will serve as Issuing Bank.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent,
the Collateral Agent, each Issuing Bank and each of the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and each
of the Subsidiaries (a) is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its organization, (b)
has all requisite power and authority to own its property and assets and to
carry on its business as now conducted and as proposed to be conducted, (c) is
qualified to do business in, and is in good standing in, every jurisdiction
where such qualification is required, except where the failure so to qualify
could not reasonably be expected to result in a Material Adverse Effect, and
(d) has the corporate power and authority to execute, deliver and perform its
obligations under each of the Loan Documents and each other agreement or
instrument contemplated hereby to which it is or will be a party and, in the
case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by each Loan Party of each of the Loan Documents and the
borrowings hereunder, and of the Stock Purchase Agreement and all other
transactions in connection therewith (collectively, the "Transactions") (a)
have been duly authorized by all requisite corporate and, if required,
stockholder action and (b) will not (i) violate (A) any provision of law,
statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive documents or by-laws of the Borrower or
any Subsidiary, (B) any order of any Governmental Authority or (C) any
provision of any indenture, agreement or other instrument to which the
Borrower or any Subsidiary is a party or by which any of them or any of their
property is or may be bound, (ii) be in conflict with, result in a breach of
or constitute (alone or with notice or lapse of time or both) a default under,
or give rise to any right to accelerate or to require the prepayment,
repurchase or redemption of any obligation under any such indenture, agreement
or other instrument or (iii) result in the creation or imposition of any Lien
upon or with respect to any property or assets now owned or hereafter acquired
by the Borrower or any Subsidiary (other than any Lien created under the
Security Documents), other than, in the case of clause (b)(i)(A), for
violations by persons other than the Borrower and the Subsidiaries of Chinese
law applicable to the Acquisition, which violations, individually and in the
aggregate, could not reasonably be expected to have a Material Adverse Effect.
SECTION 3.03. Enforceability. This Agreement has been duly
executed and delivered by the Borrower and constitutes, and each other Loan
Document when executed and delivered by the each Loan Party party thereto will
constitute, a legal, valid and binding obligation of such Loan Party
enforceable against such Loan Party in accordance with its terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and general
principles of equity.
SECTION 3.04. Governmental Approvals. No action, consent or
approval of, registration or filing with or any other action by any
Governmental Authority is or will be required in connection with the
Acquisition or the Transactions, except such as have been made or obtained and
are in full force and effect and other than the expiration of the Hart-Scott-
Rodino waiting period, which shall expire prior to the consummation of the
Acquisition, and other than consents or approvals of Chinese Governmental
Authorities necessary for certain persons to sell shares of Lasertron to the
Borrower in the Acquisition.
SECTION 3.05. Financial Statements. (a) The Borrower has
heretofore furnished to the Lenders its consolidated and consolidating balance
sheets and statements of income and changes in financial condition (a) as of
and for the fiscal years ended December 31, 1994, December 31, 1993, and
December 31, 1992, audited, in the case of consolidated financial statements,
by and accompanied by the opinion of Price Waterhouse LLP, independent public
accountants, and (b) as of and for the fiscal quarter and the portion of the
fiscal year ended June 30, 1995, certified by its chief accounting officer.
Such financial statements present fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries as of such dates and for such periods. Such balance
sheets and the notes thereto disclose all material liabilities, direct or
contingent, of the Borrower and its consolidated Subsidiaries as of the dates
thereof required to be disclosed therein in accordance with GAAP. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis, except, in the case of the statements referred to in clause
(b) above, for the absence of footnotes and for normal year-end adjustments.
(b) The Borrower has heretofore furnished to the Lenders a pro
forma consolidated balance sheet of the Borrower as of June 30, 1995, prepared
as if the Acquisition had occurred on such date, and a pro forma income
statement for the two fiscal quarters of the Borrower ended as of June 30,
1995, prepared as if the Acquisition had occurred on December 31, 1994. Such
pro forma balance sheet and income statement have been prepared in good faith
by the Borrower, based upon the assumptions used to prepare the pro forma
financial information contained in the Confidential Information Memorandum
(which assumptions are believed by the Borrower on the date thereof and on the
Closing Date to be reasonable), are based on the best information available to
the Borrower as of the date of delivery thereof and on the Closing Date,
accurately reflect all adjustments required to be made to give effect to the
Acquisition and the Borrowings in connection therewith and the application of
the proceeds of such Borrowings and present fairly in all material respects on
a pro forma basis the estimated consolidated financial position of the
Borrower and it consolidated Subsidiaries as of June 30, 1995, and the
estimated consolidated results of operations of the Borrower and the
Subsidiaries for the two fiscal quarters ended June 30, 1995, assuming that
the Acquisition and such Borrowings had actually occurred at June 30, 1994,
and December 31, 1994, respectively.
(c) The Borrower has heretofore furnished to the Lenders
Lasertron's consolidated and consolidating balance sheets and statements of
income and changes in financial condition (a) as of and for the fiscal year
ended January 31, 1995, in the case of the consolidated financial statements,
audited by and accompanied by the opinion of KPMG Peat Marwick, independent
public accountants, and (b) as of and for the fiscal quarter and the portion
of the fiscal year ended July 31, 1995, certified by its chief financial
officer. Such financial statements present fairly in all material respects
the financial condition and results of operations of Lasertron and its
consolidated subsidiaries as of such dates and for such periods. Such balance
sheets and the notes thereto disclose all material liabilities, direct or
contingent, of Lasertron and its consolidated subsidiaries as of the dates
thereof required to be disclosed therein in accordance with GAAP. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis.
SECTION 3.06. No Material Adverse Change. There has been no
material adverse change in the business, assets, operations, prospects,
condition, financial or otherwise, of the Borrower and the Subsidiaries, taken
as a whole, and, prior to the Connector Purchase, of the Borrower and the Non-
Connector Subsidiaries, taken as a whole, since December 31, 1994.
SECTION 3.07. Title to Properties; Possession Under Leases. (a)
Each of the Borrower and the Subsidiaries has good and marketable title to, or
valid leasehold interests in, all its material properties and assets, except
for minor defects in title that do not interfere with its ability to conduct
its business as currently conducted or to utilize such properties and assets
for their intended purposes. All such material properties and assets are free
and clear of Liens, other than Liens expressly permitted by Section 6.02.
(b) Each of the Borrower and the Subsidiaries has complied in all
material respects with all obligations under all material leases to which it
is a party and all such leases are in full force and effect. Each of the
Borrower and the Subsidiaries enjoys peaceful and undisturbed possession under
all such material leases.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the
Closing Date a list of (a) all Subsidiaries and the percentage ownership
interest of the Borrower therein and (b) all subsidiaries of Lasertron and the
percentage ownership of Lasertron therein. With respect to each person listed
thereon, Schedule 3.08 indicates whether such person is as of the Closing
Date, or will immediately following the consummation of the Acquisition be, an
Inactive Subsidiary. The shares of capital stock or other ownership interests
so indicated on Schedule 3.08 are fully paid and non-assessable and as of the
Closing Date are owned by the Borrower, directly or indirectly, free and clear
of all Liens.
SECTION 3.09. Litigation; Compliance with Laws. (a) There are not
any actions, suits or proceedings at law or in equity or by or before any
Governmental Authority, or any investigations by any Governmental Authority,
now pending or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any Subsidiary or any business, property or rights
of any such person (i) that involve any Loan Document, the Transactions, the
Stock Purchase Agreement or the Acquisition or (ii) as to which there is a
reasonable possibility of an adverse determination and which, if adversely
determined, could reasonably be expected, individually or in the aggregate, to
result in a Material Adverse Effect.
(b) None of the Borrower or any of the Subsidiaries or any of their
respective material properties or assets is in violation of, nor will the
continued operation of their businesses and their material properties and
assets as currently conducted violate, any law, rule or regulation, judgment,
writ, injunction, decree or order of any Governmental Authority, where such
violation could reasonably be expected to result in a Material Adverse Effect.
SECTION 3.10. Agreements. (a) Neither the Borrower nor any of the
Subsidiaries is a party to any agreement or instrument or subject to any
corporate restriction that has resulted or could reasonably be expected to
result in a Material Adverse Effect.
(b) Neither the Borrower nor any of the Subsidiaries is in default
in any manner under (i) any provision of any indenture or other agreement or
instrument evidencing Indebtedness, or any other material agreement or
instrument to which it is a party or by which it or any of its properties or
assets are or may be bound, where such default could reasonably be expected to
result in a Material Adverse Effect or (ii) the Stock Purchase Agreement.
SECTION 3.11. Federal Reserve Regulations. (a) Neither the
Borrower nor any of the Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit
will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that entails a violation of, or
that is inconsistent with, the provisions of the Regulations of the Board,
including Regulation G, U or X.
SECTION 3.12. Investment Company Act; Public Utility Holding
Company Act. Neither the Borrower nor any 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.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds
of the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of the Borrower and the
Subsidiaries has filed or caused to be filed all Federal, state, local and
foreign tax returns or materials required to have been filed by it and has
paid or caused to be paid all taxes due and payable by it and all assessments
received by it, except taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, shall have set aside on its books adequate reserves.
SECTION 3.15. No Material Misstatements. None of (a) the
Confidential Information Memorandum or (b) any other information, report,
financial statement, exhibit or schedule furnished by or on behalf of the
Borrower or Lasertron to the Administrative Agent or any Lender in connection
with the negotiation of any Loan Document or included therein or delivered
pursuant thereto contained, contains or will contain any material misstatement
of fact or omitted, omits or will omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were, are or will be made, not misleading; provided, however, that to the
extent any such information, report, financial statement, exhibit or schedule
was based upon or constitutes a forecast or projection, the Borrower
represents only that it acted in good faith and utilized reasonable
assumptions and due care in the preparation of such information, report,
financial statement, exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. Each of the Borrower and the
ERISA Affiliates is in compliance in all material respects with the applicable
provisions of ERISA and the Code and the regulations and published
interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events,
could reasonably be expected to result in material liability of the Borrower
or any of the ERISA Affiliates. The present value of all benefit liabilities
under each Plan (based on those assumptions used to fund such Plan) did not,
as of the last annual valuation date applicable thereto, exceed by more than
$6,000,000 the fair market value of the assets of such Plan, and the present
value of all benefit liabilities of all underfunded Plans (based on those
assumptions used to fund each such Plan) did not, as of the last annual
valuation dates applicable thereto, exceed by more than $6,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.17. Environmental Matters. Except as set forth in
Schedule 3.17:
(a) the properties owned or operated by the Borrower and the
Subsidiaries (the "Properties") do not contain any Hazardous Materials in
amounts or concentrations which (i) constitute, or constituted a violation of,
or (ii) is reasonably likely to give rise to liability under, Environmental
Laws, which violations and liabilities, in the aggregate, could result in a
Material Adverse Effect;
(b) the Properties and all operations of the Borrower and the
Subsidiaries are in compliance, and in the last three years have been in
compliance, with all Environmental Laws and all necessary Environmental
Permits have been obtained and are in effect, except to the extent that such
non-compliance or failure to obtain any necessary permits, in the aggregate,
could not result in a Material Adverse Effect;
(c) there have been no Releases or threatened Releases at, from,
under or proximate to the Properties or otherwise in connection with the
operations of the Borrower or the Subsidiaries, which Releases or threatened
Releases, in the aggregate, could result in a Material Adverse Effect;
(d) neither the Borrower nor any of the Subsidiaries has received
any notice of an Environmental Claim in connection with the Properties or the
operations of the Borrower or the Subsidiaries or with regard to any person
whose liabilities for environmental matters the Borrower or the Subsidiaries
has retained or assumed, in whole or in part, contractually, by operation of
law or otherwise, which, in the aggregate, could result in a Material Adverse
Effect, nor do the Borrower or the Subsidiaries have reason to believe that
any such notice will be received or is being threatened; and
(e) Hazardous Materials have not been transported from the
Properties, nor have Hazardous Materials been generated, treated, stored or
disposed of at, on or under any of the Properties in a manner that could give
rise to liability under any Environmental Law, nor have the Borrower or the
Subsidiaries retained or assumed any liability, contractually, by operation of
law or otherwise, with respect to the generation, treatment, storage or
disposal of Hazardous Materials, which transportation, generation, treatment,
storage or disposal, or retained or assumed liabilities, in the aggregate,
could result in a Material Adverse Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete
and correct description of all insurance maintained by the Borrower or by the
Borrower for its Subsidiaries as of the date hereof and the Closing Date. As
of each such date, such insurance is in full force and effect and all premiums
have been duly paid. The Borrower and its Subsidiaries have insurance in such
amounts and covering such risks and liabilities as are in accordance with
normal industry practice.
SECTION 3.19. Security Documents. The Pledge Agreement is
effective to create in favor of the Collateral Agent, for the ratable benefit
of the Secured Parties, a legal, valid and enforceable security interest in
the Collateral (as defined in the Pledge Agreement) and, when the Collateral
is delivered to the Collateral Agent, the Pledge Agreement shall constitute a
fully perfected first priority Lien on, and security interest in, all right,
title and interest of the pledgor thereunder in such Collateral, in each case
prior and superior in right to any other person. No Liens, other than those
created pursuant to the Loan Documents and other than the Connector Pledge,
exist on the Capital Stock of the Subsidiaries.
SECTION 3.20. Labor Matters. As of the date hereof and the Closing
Date, there are no strikes, lockouts or slowdowns against the Borrower or any
Subsidiary pending or, to the knowledge of the Borrower, threatened. The
hours worked by and payments made to employees of the Borrower and the
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or foreign law dealing with such
matters, other than such violations that, individually and in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. All
payments due from the Borrower or any Subsidiary, or for which any claim may
be made against the Borrower or any Subsidiary, on account of wages and
employee health and welfare insurance and other benefits, have been paid or
accruals have been made on the books of the Borrower or such Subsidiary to
cover such payments. The consummation of the Transactions will not give rise
to any right of termination or right of renegotiation on the part of any union
under any collective bargaining agreement to which the Borrower or any
Subsidiary is bound.
SECTION 3.21. Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan made on the Closing Date and after giving effect to the
application of the proceeds of such Loans, (i) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its probable liability on
its debts and liabilities, subordinated, contingent or otherwise; (ii) the
present fair saleable value of the property of each Loan Party will be greater
than the amount that will be required to pay the probable liability of its
debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (iii) each Loan Party
will be able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (iv)
each Loan Party will not have unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Closing Date.
ARTICLE IV. CONDITIONS OF LENDING
The obligations of the Lenders to make Loans and of the Issuing
Banks to issue Letters of Credit hereunder are subject to the satisfaction of
the following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing
(other than a Borrowing that results from the conversion or continuation of an
existing Borrowing) and on the date of each issuance of a Letter of Credit
(each such event being called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 or, in the case of the issuance of a
Letter of Credit, the applicable Issuing Bank and the Administrative Agent
shall have received a notice requesting the issuance of such Letter of Credit
as required by Section 2.22(b).
(b) The representations and warranties set forth in Article III
hereof shall be true and correct in all material respects on and as of the
date of such Credit Event with the same effect as though made on and as of
such date, except to the extent such representations and warranties expressly
relate to an earlier date.
(c) The Borrower shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part to be
observed or performed, and at the time of and immediately after such Credit
Event, no Event of Default or Default shall have occurred and be continuing.
Except as expressly provided in paragraph (b) above, each Credit Event shall
be deemed to constitute a representation and warranty by the Borrower on the
date of such Credit Event as to the matters specified in paragraphs (b) and
(c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself, the Lenders and the Issuing Banks, a favorable written opinion of
Ropes & Gray, counsel for the Borrower, substantially to the effect set forth
in Exhibit G, (i) dated the Closing Date, (ii) addressed to the Issuing Banks,
the Administrative Agent and the Lenders, and (iii) covering such other
matters relating to the Loan Documents and the Transactions as the
Administrative Agent shall reasonably request, and the Borrower hereby
requests such counsel to deliver such opinion.
(b) All legal matters incident to this Agreement, the Borrowings
and extensions of credit hereunder and the other Loan Documents shall be
satisfactory to the Administrative Agent, the Lenders and their counsel, the
Issuing Banks and Cravath, Swaine & Moore, counsel for the Administrative
Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto, of
each Loan Party, certified as of a recent date by the Secretary of State or
other applicable Governmental Authority of the state of its organization, and
a certificate as to the good standing of each Loan Party as of a recent date,
from such Secretary of State; (ii) a certificate of the Secretary or Assistant
Secretary of each Loan Party dated the Closing Date and certifying (A) that
attached thereto is a true and complete copy of the by-laws of such Loan Party
as in effect on the Closing Date and at all times since a date prior to the
date of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board
of Directors of such Loan Party authorizing the execution, delivery and
performance of the Loan Documents to which such person is a party and, in the
case of the Borrower, the borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and effect, (C)
that the certificate or articles of incorporation of such Loan Party have not
been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above, and (D)
as to the incumbency and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith on behalf of
such Loan Party; (iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as the
Lenders, the Issuing Banks or Cravath, Swaine & Moore, counsel for the
Administrative Agent, may reasonably request.
(d) The Administrative Agent shall have received a certificate,
dated the Closing Date and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions precedent set forth in paragraphs
(b) and (c) of Section 4.01.
(e) The Administrative Agent shall have received all Fees and other
amounts due and payable on or prior to the Closing Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder or under any other
Loan Document.
(f) The Pledge Agreement shall have been duly executed by the
parties thereto and delivered to the Collateral Agent and shall be in full
force and effect, and all the outstanding capital stock of the Non-Connector
Subsidiaries (other than the Inactive Subsidiaries) shall have been duly and
validly pledged thereunder to the Collateral Agent for the ratable benefit of
the Secured Parties and Gilbert Secured Parties and certificates representing
such shares, accompanied by undated stock powers endorsed in blank, shall be
in the actual possession of the Collateral Agent; provided, however, that (i)
neither the Borrower nor any Domestic Subsidiary shall be required to pledge
more than 65 percent of the capital stock of any Foreign Subsidiary and (ii)
no Foreign Subsidiary shall be required to pledge the capital stock of any of
its Subsidiaries.
(g) Each of the Guarantee Agreement and the Indemnity, Subrogation
and Contribution Agreement shall have been duly executed by the parties
thereto and shall have been delivered to the Collateral Agent and shall be in
full force and effect.
(h) After giving effect to the Borrowings hereunder on the Closing
Date and the application of the proceeds thereof, the Borrower and the
Subsidiaries shall have no Indebtedness other than the Loans hereunder,
Indebtedness under the Gilbert Credit Agreement and Indebtedness otherwise
permitted under Section 6.01. All agreements, commitments, security interests
and other rights and obligations in respect of the Existing Indebtedness shall
have been terminated and all amounts due in respect thereof shall have been
paid in full from the proceeds of the Loans and the proceeds of borrowings
under the Gilbert Credit Agreement, in each case made on the Closing Date,
except as set forth on Schedule 6.01 and Schedule 6.02.
(i) The likely tax position and the contingent tax and other
liabilities of the Borrower and the Subsidiaries and the plans of the Borrower
with respect thereto shall not have changed in any material respect since the
date of the Confidential Information Memorandum.
(j) The likely amount and nature of any environmental and employee
health and safety exposures to which the Borrower and the Subsidiaries may be
subject and the plans of the Borrower with respect thereto shall not have
changed in any material respect since the date of the Confidential Information
Memorandum.
(k) All approvals and consents of Governmental Authorities and
third parties required in connection with the Acquisition and the other
Transactions shall have been obtained (except as described in Section 3.04)
and all applicable appeal periods shall have expired, and there shall be no
action, pending or threatened, by or before any Governmental Authority that
has or could have a reasonable likelihood of restraining, preventing or
imposing burdensome conditions on the Acquisition or the other Transactions.
(l) The Lenders shall have received the financial statements
referred to in Section 3.05 and all other financial information reasonably
requested by the Administrative Agent.
SECTION 4.03. Tranche A Term Borrowing. On the date on which the
Tranche A Term Loans are made, the Acquisition shall have been or shall
simultaneously be consummated in accordance with applicable law and the terms
of the Stock Purchase Agreement and all related documentation (without giving
effect to any waiver or amendment of the Stock Purchase Agreement or the
closing conditions set forth therein that shall not have been approved by the
Required Lenders) which shall not have changed in any material respect from
the terms and the documentation previously delivered to the Lenders.
SECTION 4.04. Tranche B Term Borrowing. On the date on which
Tranche B Term Loans are made, the Connector Purchase shall have been or shall
simultaneously be completed and the Connector Pledge shall have been released
in accordance with the Stockholders Agreement (without giving effect to any
waiver or amendment of the provisions of the Stockholders Agreement that
relate to the Connector Purchase that shall not have been approved by the
Required Lenders).
ARTICLE V. AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Lender that so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document shall have been paid
in full and all Letters of Credit have been canceled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, the Borrower will, and will cause
each of the Subsidiaries to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or
cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except as otherwise expressly permitted
under Section 6.05.
(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the rights,
licenses, permits, franchises, authorizations, patents, copyrights, trademarks
and trade names material to the conduct of its business; maintain and operate
such business in substantially the manner in which it is presently conducted
and operated; comply in all material respects with all applicable laws, rules,
regulations and decrees and orders of any Governmental Authority, whether now
in effect or hereafter enacted; and at all times maintain and preserve all
property material to the conduct of such business and keep such property in
good repair, working order and condition and from time to time make, or cause
to be made, all needful and proper repairs, renewals, additions, improvements
and replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times.
SECTION 5.02. Insurance. Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain
such other insurance, to such extent and against such risks, including fire
and other risks insured against by extended coverage, as is customary with
companies in the same or similar businesses operating in the same or similar
locations, including public liability insurance against claims for personal
injury or death or property damage occurring upon, in, about or in connection
with the use of any properties owned, occupied or controlled by it; and
maintain such other insurance as may be required by law.
SECTION 5.03. Obligations and Taxes. Pay and perform its
Indebtedness and other obligations promptly and in accordance with their terms
and pay and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits
or in respect of its property, before the same shall become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or
otherwise that, if unpaid, might give rise to a Lien upon such properties or
any part thereof; provided, however, that such payment and discharge shall not
be required with respect to any such tax, assessment, charge, levy or claim so
long as the validity or amount thereof shall be contested in good faith by
appropriate proceedings and the Borrower shall have set aside on its books
adequate reserves with respect thereto in accordance with GAAP and such
contest operates to suspend collection of the contested obligation, tax,
assessment or charge and enforcement of a Lien.
SECTION 5.04. Financial Statements, Reports, etc. In the case of
the Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated and consolidating balance sheets and related statements of
operations, stockholders' equity and cash flows showing the financial
condition of the Borrower and its consolidated Subsidiaries as of the close of
such fiscal year and the results of its operations and the operations of such
Subsidiaries during such year, audited, in the case of the consolidated
financial statements, by Price Waterhouse LLP or other independent public
accountants of recognized national standing acceptable to the Required Lenders
and accompanied by an opinion of such accountants (which shall not be
qualified in any material respect) to the effect that such consolidated
financial statements present fairly in all material respects the financial
condition and results of operations of the Borrower and the Subsidiaries on a
consolidated basis in accordance with GAAP consistently applied and, in the
case of the consolidating financial statements, certified by a Financial
Officer of the Borrower as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and the
Subsidiaries on a consolidating basis in accordance with GAAP consistently
applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated and consolidating balance
sheets and related statements of operations, stockholders' equity and cash
flows showing the financial condition of the Borrower and its consolidated
Subsidiaries as of the close of such fiscal quarter and the results of its
operations and the operations of such Subsidiaries during such fiscal quarter
and the then elapsed portion of the fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and the Subsidiaries on a
consolidated and a consolidating basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements under
sub-paragraph (a) or (b) above, a certificate of the accounting firm or
Financial Officer opining on or certifying such statements (which certificate,
when furnished by an accounting firm, may be limited to accounting matters and
disclaim responsibility for legal interpretations) (i) certifying that no
Event of Default or Default has occurred or, if such an Event of Default or
Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto (it being
understood that such certificate, when given by an accounting firm, may be
limited to their knowledge as obtained in the course of their audit and
without special investigation) and (ii) setting forth computations in
reasonable detail satisfactory to the Administrative Agent showing the
Leverage Ratio and the Interest Coverage Ratio as of the last day of the
fiscal year or fiscal quarter to which such statements relate and
demonstrating compliance with the covenants contained in Sections 6.10, 6.11,
6.12 and 6.13 (it being understood that the information required by this
clause (ii) may be provided in a certificate of a Financial Officer on behalf
of the Borrower instead of from the accounting firm);
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by the
Borrower or any Subsidiary with the Securities and Exchange Commission, or any
Governmental Authority succeeding to any or all of the functions of said
Commission, or with any national securities exchange, or distributed to its
shareholders, as the case may be;
(e) if, as a result of any change in accounting principles and
policies from those as in effect on the date hereof, the consolidated and
consolidating financial statements of the Borrower and the Subsidiaries
delivered pursuant to paragraph (a) or (b) above will differ in any material
respect from the consolidated or consolidating financial statements that would
have been delivered pursuant to such clauses had no such change in accounting
principles and policies been made, then together with the first delivery of
financial statements pursuant to paragraph (a) and (b) above following such
change, a schedule prepared by a Financial Officer of the Borrower reconciling
such changes to what the financial statements would have been without such
changes;
(f) concurrently with the delivery of financial statement under
subparagraph (a) above, a copy of an operating and capital expenditure budget
for the next succeeding fiscal year;
(g) promptly upon the creation or acquisition of any Subsidiary or
upon any Inactive Subsidiary ceasing to be an Inactive Subsidiary, a
certificate from a Responsible Officer of the Borrower, identifying such
Subsidiary and the ownership interest of the Borrower and the Subsidiaries
therein;
(h) simultaneously with the delivery of any financial statements
pursuant to subparagraph (a) or (b) above, a balance sheet and related
statements of operations, cash flows and stockholder's equity for each
unconsolidated Subsidiary for the applicable period;
(i) promptly, a copy of all reports submitted in connection with any
material interim or special audit made by independent accountants of the books
of the Borrower or any Subsidiary; and
(j) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of the Borrower or
any Subsidiary, or compliance with the terms of any Loan Document, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, Issuing Bank and each Lender prompt written notice of
the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to be
taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or proceeding,
whether at law or in equity or by or before any Governmental Authority,
against the Borrower or any Affiliate thereof that could reasonably be
expected to result in a Material Adverse Effect; and
(c) any development that has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material
respects with the applicable provisions of ERISA and the Code and (b) furnish
to the Administrative Agent as soon as possible after, and in any event within
10 days after any Responsible Officer of the Borrower or any ERISA Affiliate
knows or has reason to know that, any ERISA Event has occurred that, alone or
together with any other ERISA Event could reasonably be expected to result in
liability of the Borrower in an aggregate amount exceeding $1,000,000 or
requiring payments exceeding $500,000 in any year, a statement of a Financial
Officer of the Borrower setting forth details as to such ERISA Event and the
action, if any, that the Borrower proposes to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law are made
of all dealings and transactions in relation to its business and activities.
Each Loan Party will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender to visit
and inspect the financial records and the properties of the Borrower or any
Subsidiary at reasonable times and as often as reasonably requested and to
make extracts from and copies of such financial records, and permit any
representatives designated by the Administrative Agent or any Lender to
discuss the affairs, finances and condition of the Borrower or any Subsidiary
with the officers thereof and independent accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in
the preamble to this Agreement.
SECTION 5.09. Compliance with Environmental Laws. Comply, and
cause all lessees and other persons occupying its Properties to comply, in all
material respects with all Environmental Laws and Environmental Permits
applicable to its operations and Properties; obtain and renew all material
Environmental Permits necessary for its operations and Properties; and conduct
any Remedial Action in accordance with Environmental Laws; provided, however,
that neither the Borrower nor any of the Subsidiaries shall be required to
undertake any Remedial Action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances.
SECTION 5.10. Further Assurances. Execute any and all further
documents and instruments, and take all further action that may be required
under applicable law, or that the Required Lenders, the Administrative Agent
or the Collateral Agent may reasonably request, in order to grant, preserve,
protect and perfect the validity and first priority of the security interests
created or intended to be created by the Security Documents. The Borrower
will cause any subsequently acquired or organized Domestic Subsidiary (other
than any Inactive Subsidiary) to become party (a) as a Guarantor to the
Guarantee Agreement, the Indemnity, Subrogation and Contribution Agreement and
each applicable Security Document in favor of the Collateral Agent and (b) as
a Gilbert Guarantor to the Gilbert Guarantee Agreement and the Gilbert
Indemnity, Subrogation and Contribution Agreement. Contemporaneously with the
closing of the Connector Purchase, the Borrower will cause each of Gilbert and
the Gilbert Guarantors to become party as a Guarantor to the Guarantee
Agreement and to the Indemnity, Subrogation and Contribution Agreement. In
addition, the Borrower will, at its cost and expense, promptly following the
date of acquisition by the Borrower or any Subsidiary (other than, prior to
the Connector Purchase, Gilbert or a Gilbert Guarantor) of any new subsidiary
(other than any Inactive Subsidiary, unless the Collateral Agent shall have
requested a pledge of Capital Stock of such Inactive Subsidiary), secure the
Obligations and the Gilbert Obligations by creating, or causing to be pledged
or created, perfected security interests in all the issued and outstanding
Capital Stock of such subsidiary pursuant to the Pledge Agreement; provided,
however, that (a) no more than 65 percent of the Capital Stock of any Foreign
Subsidiary shall be required to be pledged pursuant to this Section 5.10 and
(b) no Foreign Subsidiary shall be required to pledge any stock of any other
Foreign Subsidiary pursuant to this Section 5.10. In addition, unless the
Permitted Release shall have occurred, the Borrower shall at its cost and
expense, contemporaneously with the Connector Purchase, (x) cause the Gilbert
Collateral (other than any shares of Gilbert not held by Connector) to secure
the Obligations, and (y) secure the Obligations and the Gilbert Obligations by
pledging or creating perfected first priority security interests with respect
to 100 percent of the issued and outstanding Capital Stock of Connector. Such
security interests and Liens will be created under the Security Documents and
other security agreements, instruments and documents in form and substance
reasonably satisfactory to the Collateral Agent, and the Borrower shall
deliver or cause to be delivered to the Lenders all such instruments and
documents (including legal opinions and lien searches) as the Collateral Agent
shall reasonably request to evidence compliance with this Section 5.10. The
Borrower agrees to provide such evidence as the Collateral Agent shall
reasonably request as to the perfection and priority status of each such
security interest. Notwithstanding anything to the contrary herein or in the
Security Documents, if no Default or Event of Default shall have occurred and
be continuing before and after giving effect to the Connector Purchase, the
Collateral Agent shall release the security interests and Liens on the
Collateral upon the closing of the Connector Purchase (the "Permitted
Release").
ARTICLE VI. NEGATIVE COVENANTS
The Borrower covenants and agrees with each Lender that, so long as
this Agreement shall remain in effect and until the Commitments have been
terminated and the principal of and interest on each Loan, all Fees and all
other expenses or amounts payable under any Loan Document have been paid in
full and all Letters of Credit have been cancelled or have expired and all
amounts drawn thereunder have been reimbursed in full, unless the Required
Lenders shall otherwise consent in writing, the Borrower will not, and will
not cause or permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to
exist any Indebtedness, except:
(a) Indebtedness for borrowed money existing on the date hereof and
set forth in Schedule 6.01, but not any extensions, renewals or replacements
of such Indebtedness;
(b) Indebtedness created hereunder;
(c) so long as the Gilbert Credit Agreement is effective,
Indebtedness of Connector and its subsidiaries permitted by the Gilbert Credit
Agreement;
(d) (i) in the case of the Borrower, Indebtedness owed to any wholly
owned Subsidiary that is a Guarantor and (ii) in the case of any Subsidiary,
Indebtedness owed to the Borrower or any wholly owned Subsidiary that is a
Guarantor, in each of clauses (i) and (ii) only if such Indebtedness is
evidenced by a note or notes which are pledged to the Collateral Agent under
the Pledge Agreement;
(e) in the case of the Borrower, Indebtedness described in clause
(i) of the definition of "Indebtedness" entered into in the ordinary course of
business on terms and with counterparties reasonably satisfactory to the
Administrative Agent;
(f) Indebtedness of Lasertron and its subsidiaries incurred after
the date hereof and prior to the closing of the Acquisition and not incurred
in violation of the Stock Purchase Agreement;
(g) purchase money Indebtedness incurred in the ordinary course of
business after the date hereof to finance Capital Expenditures permitted under
Section 6.10 in a principal amount at any time outstanding not in excess of
(i) $10,000,000 less (ii) the amount of all Capital Lease Obligations incurred
pursuant to clause (h) below and outstanding at such time; provided, however,
that such Indebtedness is incurred within 90 days after the making of the
Capital Expenditure so financed;
(h) Capital Lease Obligations incurred in the ordinary course of
business after the date hereof to finance Capital Expenditures permitted under
Section 6.10 in a principal amount at any time outstanding not in excess of
(i) $10,000,000 less (ii) the principal amount of all purchase money
indebtedness incurred pursuant to clause (g) above and outstanding at such
time;
(i) in the case of the Borrower or any Guarantor, Guarantees of
Indebtedness permitted under clause (e), (g) or (h) above;
(j) Indebtedness of Foreign Subsidiaries not in excess of $5,000,000
principal amount at any time outstanding;
(k) Indebtedness of Foreign Subsidiaries to Guarantors described in
Section 6.04(k); and
(l) other unsecured Indebtedness of the Borrower not in excess of
$5,000,000 principal amount at any time outstanding.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its Subsidiaries
existing on the date hereof and set forth in Schedule 6.02; provided, however,
that such Liens shall secure only those obligations which they secure on the
date hereof;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary; provided, however, that
(i) such Lien is not created in contemplation of or in connection with such
acquisition and (ii) such Lien does not apply to any other property or assets
of the Borrower or any Subsidiary;
(d) Liens for taxes, assessments and other government charges not
yet due or which are being contested in compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business and
securing obligations that are not due and payable or which are being contested
in compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security laws or regulations;
(g) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases (other than Capital Lease Obligations),
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way, restrictions on
use of real property and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not substantial in amount and
do not materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of the Borrower or any of
its Subsidiaries;
(i) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by the Borrower or any Subsidiary; provided, however, that (i)
such security interests secure Indebtedness permitted by Section 6.01(g), (ii)
such security interests are incurred, and the Indebtedness secured thereby is
created, within 90 days after such acquisition (or construction), (iii) the
Indebtedness secured thereby is not less than 50 percent nor more than 100
percent of the lesser of the cost or the fair market value of such real
property, improvements or equipment at the time of such acquisition (or
construction) and (iv) such security interests do not apply to any other
property or assets of the Borrower or any Subsidiary;
(j) Liens represented by the interests of the lessors in respect of
Capital Lease Obligations incurred pursuant to Section 6.01(h);
(k) Liens represented by Sale and Lease-Back Transactions incurred
pursuant to Section 6.03;
(l) prior to the Connector Purchase, the Connector Pledge;
(m) any Lien incurred by Lasertron or any of its subsidiaries after
the date hereof and prior to the closing of the Acquisition and not incurred
in violation of the Stock Purchase Agreement;
(n) so long as the Gilbert Credit Agreement is effective, any Lien
on the assets of Gilbert and its subsidiaries permitted by the Gilbert Credit
Agreement; and
(o) Liens on assets of Foreign Subsidiaries that only secure
Indebtedness permitted under Section 6.01(j).
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
Sale and Lease-Back Transaction if, after giving effect thereto, the aggregate
Attributable Debt for all outstanding Sale and Lease-Back Transactions would
exceed $10,000,000.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist
any investment or any other interest in, any other person, except:
(a) investments by the Borrower existing or committed to on the date
hereof in the capital stock of the Subsidiaries;
(b) Permitted Investments;
(c) the Connector Purchase;
(d) so long as the Gilbert Credit Agreement is effective,
investments, loans or advances by Connector and its subsidiaries permitted by
the Gilbert Credit Agreement;
(e) investments, loans or advances in or to Guarantors; provided,
however, that in no event shall proceeds of the Loans be invested, loaned or
advanced in or to Connector and its subsidiaries other than pursuant to the
Connector Purchase;
(f) the Acquisition;
(g) Permitted Other Acquisitions;
(h) investments by Lasertron existing or committed to on the date
hereof;
(i) the purchase by the Borrower of shares of the Capital Stock of
Gilbert pursuant to the Management Stockholders Agreement; provided, however,
that the cash consideration paid by the Borrower for such shares shall not
exceed $1,000,000 in any fiscal year;
(j) loans to officers or employees of the Borrower in the ordinary
course not in excess of $1,000,000 principal amount at any time outstanding;
(k) additional loans and advances from the Borrower or any Guarantor
to Subsidiaries listed on Schedule 6.04(k) not in excess of $20,000,000
aggregate principal amount outstanding at any time minus loans and advances
pursuant to Section 6.04(f) of the Gibert Credit Agreement; provided, however,
that all such loans and advances are evidenced by a note or notes which are
pledged to the Collateral Agent under the Pledge Agreement;
(l) additional investments in, or loans or advances to, WTD in a net
amount not in excess of $1,000,000 outstanding at any time (in addition to
those described in clause (h) of this Section 6.04);
(m) investments in, or loans or advances to, foreign joint ventures
existing or committed to on the date hereof; and
(n) other investments in, or loans or advances to, or Guarantees of
Indebtedness of, Subsidiaries or foreign joint ventures in a net amount not in
excess of $10,000,000 outstanding at any time.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all
or any substantial part of its assets (whether now owned or hereafter
acquired) or any Capital Stock of any Subsidiary, or purchase, lease or
otherwise acquire (in one transaction or a series of transactions) all or any
substantial part of the assets of any other person, except that this Section
6.05 shall not prohibit:
(a) the purchase and sale of inventory in the ordinary course of
business by the Borrower or any Subsidiary;
(b) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be continuing
(i) the merger of any wholly owned Subsidiary into the Borrower in a
transaction in which the Borrower is the surviving corporation and (ii) the
merger or consolidation of any wholly owned Subsidiary into or with any other
wholly owned Subsidiary in a transaction in which the surviving entity is a
wholly owned Subsidiary (which shall be a Domestic Subsidiary if the non-
surviving person shall be a Domestic Subsidiary) or the dissolution or
liquidation of a wholly owned Subsidiary, and, in the case of each of clauses
(i) and (ii), no person other than the Borrower or a wholly owned Subsidiary
receives any consideration;
(c) the Acquisition;
(d) the acquisition of another person or all or a substantial part
of its assets if (i) the acquired person is engaged in the same business as
the Borrower or another business reasonably related thereto, and (ii) at the
time of and after giving effect to such acquisition, no Event of Default or
Default has occurred and is continuing, and (iii) after giving effect to such
acquisition, the Borrower shall be in compliance, on a pro forma basis, with
Sections 6.10, 6.11, 6.12 and 6.13, and (iv) such acquisition is approved by
the board of directors of the acquired person prior to the commencement of any
tender offer or the acquisition by the Borrower of any shares of Capital Stock
thereof, and (v) after giving effect to such acquisition, the Borrower
controls the dividend policy of the Capital Stock of the acquired person and
owns at least 80 percent of the common equity thereof and (vi) (A) on the date
of such acquisition and after giving effect thereto the Designated Financial
Tests are satisfied on an actual and, unless the Borrower is relying on clause
(a)(ii) of the definition of "Designated Financial Tests", pro forma basis, or
(B) the consideration used consists solely of Capital Stock of the Borrower,
or (C) the aggregate consideration paid after the Closing Date for
acquisitions (other than acquisitions meeting the requirements of clause (A)
or (B) above) is not in excess of $10,000,000; provided, however, that the
aggregate consideration paid under this clause (d)(otherwise than in the form
of Capital Stock of the Borrower) after the Closing Date for the acquisition
of persons not incorporated or organized under the laws of the United States
of America, any State thereof or the District of Columbia shall not in any
event exceed $10,000,000 (the foregoing collectively defined as "Permitted
Other Acquisitions");
(e) the sale by the Borrower or any Subsidiary of the assets of or
Capital Stock in O/E/N India Ltd., WSNS or Nordco Inc.; and
(f) sales or other dispositions by the Borrower or any Subsidiary of
assets (other than receivables, except to the extent disposed of incidentally
in connection with an asset disposition otherwise permitted hereby), for
consideration in an aggregate amount not exceeding $25,000,000; provided,
however, that (i) each such disposition shall be for a consideration
determined in good faith by the board of directors or senior management of the
Borrower to be at least equal to the fair market value (if any) of the asset
sold, (ii) the aggregate amount of all non-cash consideration included in the
proceeds of any such disposition may not exceed 20 percent of the fair market
value of such proceeds (provided that obligations of the type referred to in
clause (a) of the definition of "Permitted Investments" shall not be deemed
non-cash proceeds if such obligations are promptly sold for cash and the
proceeds of such sale are included in the calculation of Net Proceeds from
such sale), (iii) the aggregate Net Proceeds of all such dispositions under
this clause (f) shall be applied in accordance with Section 2.13(b), and (iv)
no Default or Event of Default shall have occurred and be continuing
immediately prior to or after such disposition.
SECTION 6.06. Dividends and Distributions; Restrictions on Ability
of Subsidiaries to Pay Dividends. (a) Declare or pay, directly or
indirectly, any dividend or make any other distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, with respect to any shares of its Capital Stock or directly or
indirectly redeem, purchase, retire or otherwise acquire for value (or permit
any Subsidiary to purchase or acquire) any shares of any class of its Capital
Stock or set aside any amount for any such purpose; provided, however, that
(i) any Subsidiary may declare and pay dividends or make other distributions
to the Borrower, (ii) Connector and its subsidiaries may declare and pay
dividends and make other distributions with respect to their Capital Stock,
(iii) the Borrower may repurchase its common stock for aggregate consideration
not in excess of $1,000,000 in any fiscal year for use in connection with its
supplemental retirement income plan and (iv) if at the time thereof and
immediately after giving effect thereto no Default or Event of Default shall
have occurred and be continuing, the Borrower may repurchase stock or options
from former officers and former employees (or their legal representatives) in
the ordinary course of business in accordance with any duly instituted stock
option plan.
(b) Permit its subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any such subsidiary to, except pursuant to the
Stockholders Agreement, (i) pay any dividends or make any other distributions
on its Capital Stock or any other interest or (ii) make or repay any loans or
advances to the Borrower or the parent of such subsidiary.
SECTION 6.07. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates (other
than transactions between or among the Borrower and the wholly owned
Subsidiaries), except that (a) the Borrower or any Subsidiary may engage in
any of the foregoing transactions at prices and on terms and conditions not
less favorable to the Borrower or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties and (b) Connector may pay,
pursuant to Section 4.1 of the Stockholders Agreement, (i) management fees to
the Borrower in an amount not to exceed $450,000 per annum and (ii) the
reasonable out-of-pocket and travel and lodging costs of certain of its
directors in connection with the attendance at meetings of the directors of
Connector in each Fiscal Year.
SECTION 6.08. Business of Borrower and Subsidiaries. Engage at any
time in any business or business activity other than the business currently
conducted by it and business activities reasonably incidental or related
thereto.
SECTION 6.09. Indebtedness and Other Material Agreements. (a)
Amend or modify, or grant any waiver or release under (i) any instruments,
agreements or documents evidencing or in connection with Indebtedness of the
Borrower and the Subsidiaries, (ii) any agreements material to the business of
the Borrower and the Subsidiaries, or (iii) the Stockholders Agreement, except
with respect to amendments of or waivers under Section 4.3, 4.4, 4.5, 4.6, 4.7
or 4.9 of the Stockholders Agreement and relating to the subject matters of
such sections as in effect on the date of the Agreement.
(b) Amend or modify in any manner adverse to the Lenders, or grant
any waiver or release under or terminate in any manner (if such action shall
be adverse to the Lenders), the Stock Purchase Agreement or the certificate of
incorporation or bylaws of the Borrower or any Subsidiary.
SECTION 6.10. Capital Expenditures. Permit Consolidated Oak or,
prior to the Connector Purchase, Adjusted Oak to make any Capital
Expenditures, on a consolidated basis, in any fiscal year to exceed the amount
set forth below for Consolidated Oak or Adjusted Oak, as applicable:
<TABLE>
<CAPTION>
Fiscal Year: Consolidated Oak: Adjusted Oak:
- - - - ----------- ---------------- ------------
<S> <C> <C>
1995 $21,000,000 $13,000,000
1996 $25,000,000 $15,000,000
1997 $30,000,000 $18,000,000
1998 $34,000,000 $20,000,000
1999 $38,000,000 $22,000,000
2000 $42,000,000 $24,000,000
</TABLE>
SECTION 6.11. Leverage Ratio. Permit the Leverage Ratio of
Consolidated Oak or, prior to the Connector Purchase, Adjusted Oak to exceed,
as of December 31, 1995, and as of the last day of each fiscal quarter
thereafter, 0.55 to 1.00.
SECTION 6.12. Interest Coverage Ratio. Permit the Interest
Coverage Ratio of Consolidated Oak or, prior to the Connector Purchase,
Adjusted Oak, as of December 31, 1995, and as of the last day of each fiscal
quarter thereafter, which last day occurs in any period set forth below, to be
less than the ratio set forth below for such period for Consolidated Oak or
Adjusted Oak, as applicable:
<TABLE>
<CAPTION>
From To
and and Consolidated
Including: Including Oak Adjusted Oak
- - - - ---------- --------- ------------ ------------
<S> <C> <C> <C>
December 31, 1995 June 30, 1996 3.0 to 1.0 2.5 to 1.0
September 30, 1996 3.0 to 1.0 3.0 to 1.0
and thereafter
</TABLE>
SECTION 6.13. Consolidated Net Worth. Permit the Consolidated Net
Worth of the Borrower and the Subsidiaries as of December 31, 1995, or as of
the last day of any fiscal quarter thereafter to be less than the sum of (a)
$190,000,000, plus (b) 50 percent of the aggregate Consolidated Net Income of
the Borrower and the Subsidiaries for each complete fiscal year, commencing on
or after January 1, 1996 and ending prior to such date (excluding any fiscal
year for which Consolidated Net Income shall be negative).
SECTION 6.14. Fiscal Year. Cause its fiscal year to end on other
than December 31 of each year.
ARTICLE VII. EVENTS OF DEFAULT
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made in or in
connection with any Loan Document or the borrowings or issuances of Letters of
Credit hereunder, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other instrument
furnished in connection with or pursuant to any Loan Document, shall prove to
have been false or misleading in any material respect when so made, deemed
made or furnished;
(b) default shall be made in the payment of any principal of any
Loan or the reimbursement with respect to any L/C Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or otherwise,
and, in the case of default in reimbursement, such default shall continue
unremedied for a period of one Business Day;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or L/C Disbursement or any other amount (other than an amount
referred to in (b) above) due under any Loan Document, when and as the same
shall become due and payable, and such default shall continue unremedied for a
period of three Business Days;
(d) default shall be made in the due observance or performance by
the Borrower or any Subsidiary of any covenant, condition or agreement
contained in Section 5.01(a), 5.05 or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by
the Borrower or any Subsidiary of any covenant, condition or agreement
contained in any Loan Document (other than those specified in (b), (c) or (d)
above) and such default shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent or any Lender to the
Borrower;
(f) the Borrower or any Subsidiary shall (i) fail to pay any
principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $500,000, when and as the same
shall become due and payable, or (ii) fail to observe or perform any other
term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect of any
failure referred to in this clause (ii) is to cause, or to permit the holder
or holders of such Indebtedness or a trustee on its or their behalf (with or
without the giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of the Borrower or any Subsidiary, or of a substantial part
of the property or assets of the Borrower or a Subsidiary, under Title 11 of
the United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any Subsidiary or for a
substantial part of the property or assets of the Borrower or a Subsidiary or
(iii) the winding-up or liquidation of the Borrower or any Subsidiary; and
such proceeding or petition shall continue undismissed for 60 days or an order
or decree approving or ordering any of the foregoing shall be entered;
(h) the Borrower or any Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking relief under Title 11 of the
United States Code, as now constituted or hereafter amended, or any other
Federal, state or foreign bankruptcy, insolvency, receivership or similar law,
(ii) consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or the filing of any petition described in
(g) above, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the
Borrower or any Subsidiary or for a substantial part of the property or assets
of the Borrower or any Subsidiary, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, (vi) become unable, admit in
writing its inability or fail generally to pay its debts as they become due or
(vii) take any action for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $1,000,000 shall be rendered against the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged
for a period of 30 consecutive days during which execution shall not be
effectively stayed, or any action shall be legally taken by a judgment
creditor to levy upon assets or properties of the Borrower or any Subsidiary
to enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other such ERISA Events, could
reasonably be expected to result in liability of the Borrower and its ERISA
Affiliates in an aggregate amount exceeding $1,000,000 or requires payments
exceeding $500,000 in any year;
(k) (i) any Loan Document shall for any reason be asserted by the
Borrower or any Loan Party not to be a legal, valid and binding obligation of
any party thereto, or (ii) any security interest purported to be created by
any Security Document shall cease to be, or shall be asserted by the Borrower
or any other Loan Party not to be, a valid, perfected, first priority (except
as otherwise expressly provided in this Agreement or such Security Document)
security interest in the securities, assets or properties covered thereby,
except to the extent that any such loss of perfection or priority results from
the failure of the Collateral Agent to maintain possession of certificates
representing securities pledged under the Pledge Agreement;
(l) the Borrower or any Subsidiary shall default in the due
observance or performance of any covenant, condition or agreement contained in
the Stockholders Agreement, unless such default has been waived pursuant to
the terms thereof and unless such waiver is permitted by Section 6.09(a)(iii);
(m) there shall occur any Event of Default (as defined therein)
under the Gilbert Credit Agreement; or
(n) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the
Borrower described in paragraph (g) or (h) above), and at any time thereafter
during the continuance of such event, the Administrative Agent at the request
of the Required Lenders, shall, by notice to the Borrower, take either or both
of the following actions, at the same or different times: (i) terminate
forthwith the obligations of the Lenders to make Loans and of the Issuing
Banks to issue Letters of Credit hereunder and (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with
accrued interest thereon and any unpaid accrued Fees and all other liabilities
of the Borrower accrued hereunder and under any other Loan Document, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the obligations of the Lenders to
make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and any unpaid accrued Fees and all
other liabilities of the Borrower accrued hereunder and under any other Loan
Document, 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 the Borrower, anything contained herein or in any other
Loan Document to the contrary notwithstanding.
ARTICLE VIII. THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
In order to expedite the transactions contemplated by this
Agreement, Chemical Bank is hereby appointed to act as Administrative Agent
and Collateral Agent on behalf of the Lenders and the Issuing Banks (for
purposes of this Article VIII, the Administrative Agent and the Collateral
Agent are referred to collectively as the "Agents"). Each of the Lenders and
each assignee of any such Lender, hereby irrevocably authorizes the Agents to
take such actions on behalf of such Lender or assignee or such Issuing Bank
and to exercise such powers as are specifically delegated to the Agents by the
terms and provisions hereof and of the other Loan Documents, together with
such actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Lenders and the
Issuing Banks, without hereby limiting any implied authority, (a) to receive
on behalf of the Lenders and the Issuing Banks all payments of principal of
and interest on the Loans, all payments in respect of L/C Disbursements and
all other amounts due to the Lenders hereunder, and promptly to distribute to
each Lender or each Issuing Bank its proper share of each payment so received;
(b) to give notice on behalf of each of the Lenders to the Borrower of any
Event of Default specified in this Agreement of which the Administrative Agent
has actual knowledge acquired in connection with its agency hereunder; and (c)
to distribute to each Lender copies of all notices, financial statements and
other materials delivered by the Borrower pursuant to this Agreement as
received by the Administrative Agent. Without limiting the generality of the
foregoing, the Agents are hereby expressly authorized to execute any and all
documents (including releases) with respect to the Collateral and the rights
of the Secured Parties with respect thereto, as contemplated by and in
accordance with the provisions of this Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct,
or be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by
the Borrower or any other Loan Party of any of the terms, conditions,
covenants or agreements contained in any Loan Document. The Agents shall not
be responsible to the Lenders for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or any other Loan Documents,
instruments or agreements. The Agents shall in all cases be fully protected
in acting, or refraining from acting, in accordance with written instructions
signed by the Required Lenders and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto shall be
binding on all the Lenders. Each Agent shall, in the absence of knowledge to
the contrary, be entitled to rely on any instrument or document believed by it
in good faith to be genuine and correct and to have been signed or sent by the
proper person or persons. Neither the Agents nor any of their respective
directors, officers, employees or agents shall have any responsibility to the
Borrower or any other Loan Party on account of the failure of or delay in
performance or breach by any Lender or any Issuing Bank of any of its
obligations hereunder or to any Lender or any Issuing Bank on account of the
failure of or delay in performance or breach by any other Lender or any other
Issuing Bank or the Borrower or any other Loan Party of any of their
respective obligations hereunder or under any other Loan Document or in
connection herewith or therewith. Each of the Agents may execute any and all
duties hereunder by or through agents or employees and shall be entitled to
rely upon the advice of legal counsel selected by it with respect to all
matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders
and the Borrower. Upon any such resignation, the Required Lenders shall have
the right to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders, appoint a successor Agent
which shall be a bank with an office in New York, New York, having a combined
capital and surplus of at least $500,000,000 or an Affiliate of any such bank.
Upon the acceptance of any appointment as Agent hereunder by a successor bank,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations hereunder. After the Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary
or other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on its Commitments hereunder) of any
expenses incurred for the benefit of the Lenders by the Agents, including
counsel fees and compensation of agents and employees paid for services
rendered on behalf of the Lenders, that shall not have been reimbursed by the
Borrower and (b) to indemnify and hold harmless each Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by or asserted against it in its capacity as Agent or any of them in
any way relating to or arising out of this Agreement or any other Loan
Document or any action taken or omitted by it or any of them under this
Agreement or any other Loan Document, to the extent the same shall not have
been reimbursed by the Borrower; provided, however, that no Lender shall be
liable to an Agent or any such other indemnified person for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
wilful misconduct of such Agent or any of its directors, officers, employees
or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX. MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy,
as follows:
(a) if to the Borrower, to it at Bay Colony Corporate Center, 1000
Winter Street, Waltham, MA 02154, Attention of Pamela F. Lenehan (Telecopy No.
(617) 890-8585);
(b) if to the Administrative Agent, to Chemical Bank Agency
Services, Grand Central Tower, 140 East 45th Street, New York, New York 10017,
Attention of Sandra Miklave (Telecopy No. (212) 622-0002), with a copy to
Chemical Bank, 270 Park Avenue, New York, New York 10017, Attention of Ann B.
Kerns (Telecopy No. (212) 270-2625); and
(c) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to which
such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on
the date of receipt if delivered by hand or overnight courier service or sent
by telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance
with the latest unrevoked direction from such party given in accordance with
this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments prepared or delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the Lenders and the Issuing Banks and shall survive
the making by the Lenders of the Loans and the issuance of Letters of Credit
by the Issuing Banks, regardless of any investigation made by the Lenders or
the Issuing Banks or on their behalf, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
Fee or any other amount payable under this Agreement or any other Loan
Document is outstanding and unpaid or any Letter of Credit is outstanding and
so long as the Commitments have not been terminated. The provisions of
Sections 2.14, 2.16, 2.20 and 9.05 shall remain operative and in full force
and effect regardless of the expiration of the term of this Agreement, the
consummation of the transactions contemplated hereby, the repayment of any of
the Loans, the expiration of the Commitments, the expiration of any Letter of
Credit, the invalidity or unenforceability of any term or provision of this
Agreement or any other Loan Document, or any investigation made by or on
behalf of the Administrative Agent, the Collateral Agent, any Lender or any
Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted successors
and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of the Borrower, the
Administrative Agent, the Issuing Banks or the Lenders that are contained in
this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing
to it); provided, however, that (i) except in the case of an assignment to a
Lender or an Affiliate of such Lender, (x) the Borrower and the Administrative
Agent (and, in the case of any assignment of a Revolving Credit Commitment,
each Issuing Bank) must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld) and (y) the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment
is delivered to the Administrative Agent) shall not be less than $10,000,000
(or, if less, the entire remaining amount of such Lender's Commitment), (ii)
each such assignment shall be the same percentage of all the assigning
Lender's rights and obligations under this Agreement and the Gilbert Credit
Agreement and all of the Commitments and Loans hereunder shall be assigned pro
rata, (iii) the parties to each such assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500 and (iv) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (e) below,
from and after the effective date specified in each Assignment and Acceptance,
which effective date shall be at least five Business Days after the execution
thereof, (A) the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement and (B) the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.14, 2.16, 2.20 and 9.05,
as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse claim and
that its Tranche A Commitment, Tranche B Commitment and Revolving Credit
Commitment, and the outstanding balances of its Term Loans and Revolving
Loans, in each case without giving effect to assignments thereof which have
not become effective, are as set forth in such Assignment and Acceptance, (ii)
except as set forth in (i) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, any other Loan Document or any other
instrument or document furnished pursuant hereto, or the financial condition
of the Borrower or any Subsidiary or the performance or observance by the
Borrower or any Subsidiary of any of its obligations under this Agreement, any
other Loan Document or any other instrument or document furnished pursuant
hereto; (iii) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; (iv) such assignee
confirms that it has received a copy of this Agreement, together with copies
of the most recent financial statements referred to in Section 3.05 or
delivered pursuant to Section 5.04 and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to
enter into such Assignment and Acceptance; (v) such assignee will
independently and without reliance upon the Administrative Agent, the
Collateral Agent, such assigning Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under this
Agreement; (vi) such assignee appoints and authorizes the Administrative Agent
and the Collateral Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the
Administrative Agent and the Collateral Agent, respectively, by the terms
hereof, together with such powers as are reasonably incidental thereto; and
(vii) such assignee agrees that it will perform in accordance with their terms
all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices in The City of New York
a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive and the Borrower, the Administrative Agent, the Issuing
Banks, the Collateral Agent and the Lenders may treat each person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower, any Issuing
Bank, the Collateral Agent and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) above and, if required, the written consent of the Borrower,
each Issuing Bank and the Administrative Agent to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Lenders and the Issuing Bank. No assignment shall be
effective unless it has been recorded in the Register as provided in this
paragraph (e).
(f) Each Lender may without the consent of the Borrower, any
Issuing Bank or the Administrative Agent sell participations to one or more
banks or other entities in all or a portion of its rights and obligations
under this 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 Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the participating banks or other entities shall be entitled
to the benefit of the cost protection provisions contained in Sections 2.14,
2.16 and 2.20 to the same extent as if they were Lenders (but the liability of
the Borrower under such Sections shall not be greater than its liability
thereunder to the selling Lender) and (iv) the Borrower, the Administrative
Agent, the Issuing Banks and the Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right
to enforce the obligations of the Borrower relating to the Loans or L/C
Disbursements and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of principal of or the
rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans
or changing or extending the Commitments).
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant
to this Section 9.04, disclose to the assignee or participant or proposed
assignee or participant any information relating to the Borrower furnished to
such Lender by or on behalf of the Borrower; provided, however, that, prior to
any such disclosure of information designated by the Borrower as confidential,
each such assignee or participant or proposed assignee or participant shall
execute an agreement whereby such assignee or participant shall agree (subject
to customary exceptions) to preserve the confidentiality of such confidential
information on terms no less restrictive than those applicable to the Lenders
pursuant to Section 9.16.
(h) Any Lender may at any time assign all or any portion of its
rights under this Agreement to a Federal Reserve Bank to secure extensions of
credit by such Federal Reserve Bank to such Lender; provided, however, that no
such assignment shall release a Lender from any of its obligations hereunder
or substitute any such Bank for such Lender as a party hereto. In order to
facilitate such an assignment to a Federal Reserve Bank, the Borrower shall,
at the request of the assigning Lender, duly execute and deliver to the
assigning Lender a promissory note or notes evidencing the Loans made to the
Borrower by the assigning Lender hereunder.
(i) The Borrower shall not assign or delegate any of its rights or
duties hereunder without the prior written consent of the Administrative
Agent, each Issuing Bank and each Lender, and any attempted assignment without
such consent shall be null and void.
(j) In the event that Standard & Poor's Ratings Group, Moody's
Investors Service, Inc., and Thompson's BankWatch (or InsuranceWatch Ratings
Service, in the case of Lenders that are insurance companies (or Best's
Insurance Reports, if such insurance company is not rated by InsuranceWatch
Ratings Service)) shall, after the date that any Lender becomes a Lender,
downgrade the long-term certificate deposit ratings of such Lender, and the
resulting ratings shall be below BBB-, Baa3 and C (or BB, in the case of a
Lender that is an insurance company (or B, in the case of an insurance company
not rated by InsuranceWatch Ratings Service)), then any Issuing Bank shall
have the right, but not the obligation, at its own expense, upon notice to
such Lender and the Administrative Agent, to replace (or to request the
Borrower to use its reasonable efforts to replace) such Lender with an
assignee (in accordance with and subject to the restrictions contained in
paragraph (b) above), and such Lender hereby agrees to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in paragraph (b) above) all its interests, rights and obligations in respect
of its Revolving Credit Commitment to such assignee; provided, however, that
(i) no such assignment shall conflict with any law, rule and regulation or
order of any Governmental Authority and (ii) such Issuing Bank or such
assignee, as the case may be, shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest
accrued to the date of payment on the Loans made by such Lender hereunder and
all other amounts accrued for such Lender's account or owned to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay
all reasonable out-of-pocket expenses incurred by the Administrative Agent,
the Collateral Agent and the Issuing Banks in connection with the syndication
of the credit facilities provided for herein and under the Gilbert Credit
Agreement and the preparation and administration of this Agreement, the
Gilbert Credit Agreement and the other Loan Documents (as defined herein and
under the Gilbert Credit Agreement) or in connection with any amendments,
modifications or waivers of the provisions hereof or of any other Loan
Document (whether or not the transactions thereby contemplated shall be
consummated) or incurred by the Administrative Agent, the Collateral Agent or
any Lender in connection with the enforcement or protection of its rights in
connection with this Agreement and the other Loan Documents or in connection
with the Loans made or Letters of Credit issued hereunder, including the
reasonable fees, charges and disbursements of Cravath, Swaine & Moore, counsel
for the Administrative Agent and the Collateral Agent, and, in connection with
any such enforcement or protection, the fees, charges and disbursements of any
other counsel for the Administrative Agent, the Collateral Agent or any
Lender.
(b) The Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent, each Lender and each Issuing Bank, each Affiliate of any of
the foregoing persons and each of their respective directors, officers,
employees and agents (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated thereby, the performance by the parties thereto of
their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby, (ii) the use of
the proceeds of the Loans or issuance of Letters of Credit, (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, or (iv) any actual or
alleged presence or Release of Hazardous Materials on any property owned or
operated by the Borrower or any of the Subsidiaries, or any Environmental
Claim related in any way to the Borrower or the Subsidiaries; provided,
however, that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
resulted from the gross negligence or wilful misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the
expiration of any Letter of Credit, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent, any Lender or any Issuing Bank. All amounts due under this Section
9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of Setoff. Subject to Section 2.18, if an
Event of Default shall have occurred and be continuing, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement and other Loan Documents held by such Lender,
irrespective of whether or not such Lender shall have made any demand under
this Agreement or such other Loan Document and although such obligations may
be unmatured. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Lender
may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER
LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH
LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM
CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL
CHAMBER OF COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO
MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of this Agreement or any other Loan Document or consent to
any departure by the Borrower therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) below, and then such waiver or
consent shall be effective only in the specific instance and for the purpose
for which given. No notice or demand on the Borrower in any case shall
entitle the Borrower to any other or further notice or demand in similar or
other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders; provided, however, that
no such agreement shall (i) decrease the principal amount of, or extend the
maturity of any Loan or any scheduled principal payment date or date for the
payment of any interest on any Loan or any date for reimbursement of an L/C
Disbursement, or waive or excuse any such payment or any part thereof, or
decrease the rate of interest on any Loan or L/C Disbursement, without the
prior written consent of each Lender directly affected thereby, (ii) change or
extend the Commitment or decrease the Commitment Fees of any Lender without
the prior written consent of such Lender, (iii) amend or modify the provisions
of Section 2.17, 2.18 or 9.04(i), the provisions of this Section 9.08, the
definition of the term "Required Lenders", or release all or any substantial
part of the Collateral, other than the Permitted Release, or release any
Guarantor or Gilbert Guarantor from the Guarantee Agreement or Gilbert
Guarantee Agreement, as applicable, unless all or substantially all of the
Capital Stock of such Guarantor or Gilbert Guarantor is sold in a transaction
permitted by this Agreement, in each case without the prior written consent of
each Lender or (iv) amend, modify or otherwise affect the rights or duties of
the Administrative Agent, the Collateral Agent or any Issuing Bank hereunder
or under any other Loan Document without the prior written consent of the
Administrative Agent, the Collateral Agent or each Issuing Bank.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any
Loan or participation in any L/C Disbursement, together with all fees, charges
and other amounts which are treated as interest on such Loan or participation
in such L/C Disbursement under applicable law (collectively the "Charges"),
shall exceed the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by the Lender holding
such Loan or participation in accordance with applicable law, the rate of
interest payable in respect of such Loan or participation hereunder, together
with all Charges payable in respect thereof, shall be limited to the Maximum
Rate and, to the extent lawful, the interest and Charges that would have been
payable in respect of such Loan or participation but were not payable as a
result of the operation of this Section shall be cumulated and the interest
and Charges payable to such Lender in respect of other Loans or participations
or periods shall be increased (but not above the Maximum Rate therefor) until
such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such
Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and
the other Loan Documents constitute the entire contract between the parties
relative to the subject matter hereof. Any other previous agreement among the
parties with respect to the subject matter hereof is superseded by this
Agreement and the other Loan Documents. Nothing in this Agreement or in the
other Loan Documents, expressed or implied, is intended to confer upon any
party other than the parties hereto and thereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement or the other
Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS Section 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together
shall constitute a single contract, and shall become effective as provided in
Section 9.03. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a)
The Borrower hereby irrevocably and unconditionally submits, for itself and
its property, to the nonexclusive jurisdiction of any New York State court or
Federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out
of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that the Administrative Agent, the Collateral Agent,
any Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or the other Loan Documents against the
Borrower or its properties in the courts of any jurisdiction.
(b) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any New York State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in
any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.16. Confidentiality. The Administrative Agent, the
Collateral Agent, each Issuing Bank and each of the Lenders agrees to keep
confidential (and to use its best efforts to cause its respective agents and
representatives to keep confidential) the Information (as defined below) and
all copies thereof, extracts therefrom and analyses or other materials based
thereon, except that the Administrative Agent, the Collateral Agent, each
Issuing Bank or any Lender shall be permitted to disclose Information (a) to
such of its respective officers, directors, employees, agents, affiliates and
representatives as need to know such Information, (b) to the extent requested
by any regulatory authority, (c) to the extent otherwise required by
applicable laws and regulations or by any subpoena or similar legal process,
(d) in connection with any suit, action or proceeding relating to the
enforcement of its rights hereunder or under the other Loan Documents or (e)
to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section 9.16 or (ii) becomes available to the
Administrative Agent, each Issuing Bank, any Lender or the Collateral Agent on
a nonconfidential basis from a source other than the Borrower. For the
purposes of this Section, "Information" shall mean all financial statements,
certificates, reports, agreements and information (including all analyses,
compilations and studies prepared by the Administrative Agent, the Collateral
Agent, each Issuing Bank or any Lender based on any of the foregoing) that are
received from the Borrower and related to the Borrower, any shareholder of the
Borrower or any employee, customer or supplier of the Borrower, other than any
of the foregoing that were available to the Administrative Agent, the
Collateral Agent, each Issuing Bank or any Lender on a nonconfidential basis
prior to its disclosure thereto by the Borrower, and which are in the case of
Information provided after the date hereof, clearly identified at the time of
delivery as confidential. The provisions of this Section 9.16 shall remain
operative and in full force and effect regardless of the expiration and term
of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
OAK INDUSTRIES INC.,
by /S/ PAMELA F. LENEHAN
NAME: PAMELA F. LENEHAN
TITLE: SENIOR VICE PRESIDENT
CHEMICAL BANK, individually
and as Administrative Agent,
Collateral Agent and Issuing Bank,
by /S/ EDWARD W. DEVINE
NAME: EDWARD W. DEVINE
TITLE: MANAGING DIRECTOR
THE FIRST NATIONAL BANK OF BOSTON,
by /S/ THOMAS F. FARLEY, JR.
NAME: THOMAS F. FARLEY, JR.
TITLE: DIRECTOR
MELLON BANK, N.A.,
by /S/ ROBERT H. SUMMERSGILL
NAME: ROBERT H. SUMMERSGILL
TITLE: FIRST VICE PRESIDENT
THE CHASE MANHATTAN BANK
(National Association),
by /S/ KARIM T. ASSEF
NAME: KARIM T. ASSEF
TITLE: VICE PRESIDENT
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA,
by /S/ MARK M. HARDEN
NAME: MARK M. HARDEN
TITLE: VICE PRESIDENT
FLEET BANK OF MASSACHUSETTS, N.A.,
by /S/ ALLISON READ
NAME: ALLISON READ
TITLE: SENIOR VICE PRESIDENT
LTCB TRUST CO.,
by /S/ JOHN J. SULLIVAN
NAME: JOHN J. SULLIVAN
TITLE: EXECUTIVE VICE PRESIDENT
NATIONSBANK OF TEXAS, N.A.,
by /S/ BRENT W. MELLOW
NAME: BRENT W. MELLOW
TITLE: VICE PRESIDENT
THE TORONTO DOMINION BANK,
by /S/ NEVA NESBITT
NAME: NEVA NESBITT
TITLE: MGR. CR ADMIN.
ABN AMRO BANK N.V., Boston Branch,
by /S/ JAMES E. DAVIS
NAME: JAMES E. DAVIS
TITLE: VICE PRESIDENT
by /S/ BRIAN M. HORGAN
NAME: BRIAN M. HORGAN
TITLE: ASSISTANT VICE PRESIDENT
BHF-BANK AG,
by /S/ JOHN SYKES
NAME: JOHN SYKES
TITLE: ASSISTANT VICE PRESIDENT
by /S/ DAVID FRAENKEL
NAME: DAVID FRAENKEL
TITLE: VICE PRESIDENT
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
by /S/ ROBERT IVOSEVICH
NAME: ROBERT IVOSEVICH
TITLE: AUTHORIZED SIGNATURE
CREDIT LYONNAIS NEW YORK BRANCH,
by /S/ ROBERT IVOSEVICH
NAME: ROBERT IVOSEVICH
TITLE: SENIOR VICE PRESIDENT
THE MITSUBISHI BANK, LIMITED,
NEW YORK BRANCH,
by /S/ DAVID A. KELSON
NAME: DAVID A. KELSON
TITLE: VICE PRESIDENT
THE ROYAL BANK OF SCOTLAND
PLC-NEW YORK BRANCH,
by /S/ RUSSELL M. GIBSON
NAME: RUSSELL M. GIBSON
TITLE: VICE PRESIDENT & DEPUTY MANAGER
NBD BANK,
by /S/ KARL I. BELL
NAME: KARL I. BELL
TITLE: VICE PRESIDENT
NORWEST BANK ARIZONA, NATIONAL
ASSOCIATION,
by /S/ DAN McKIRGAN
NAME: DAN McKIRGAN
TITLE: VICE PRESIDENT
EXECUTION COPY
============================================================================
CREDIT AGREEMENT
Dated as of August 30, 1995
among
CONNECTOR HOLDING COMPANY,
GILBERT ENGINEERING CO., INC.,
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
CHEMICAL BANK, as
Administrative Agent, Collateral Agent
and Issuing Bank
============================================================================
TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms...................................... 2
SECTION 1.02. Terms Generally.................................... 30
ARTICLE II
The Credits
SECTION 2.01. Commitments........................................ 30
SECTION 2.02. Loans.............................................. 31
SECTION 2.03. Borrowing Procedure................................ 33
SECTION 2.04. Evidence of Debt; Repayment of Loans............... 34
SECTION 2.05. Fees............................................... 35
SECTION 2.06. Interest on Loans.................................. 36
SECTION 2.07. Default Interest................................... 37
SECTION 2.08. Alternate Rate of Interest......................... 37
SECTION 2.09. Termination and Reduction of Commitments........... 38
SECTION 2.10. Conversion and Continuation of Borrowings.......... 38
SECTION 2.11. Repayment of Term Borrowings....................... 40
SECTION 2.12. Optional Prepayment................................ 41
SECTION 2.13. Mandatory Prepayments.............................. 42
SECTION 2.14. Reserve Requirements; Change in Circumstances...... 45
SECTION 2.15. Change in Legality................................. 47
SECTION 2.16. Indemnity.......................................... 48
SECTION 2.17. Pro Rata Treatment................................. 48
SECTION 2.18. Sharing of Setoffs................................. 49
SECTION 2.19. Payments........................................... 50
SECTION 2.20. Taxes.............................................. 50
SECTION 2.21. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate.................... 54
SECTION 2.22. Letters of Credit.................................. 56
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers............................... 61
SECTION 3.02. Authorization...................................... 62
SECTION 3.03. Enforceability..................................... 62
SECTION 3.04. Governmental Approvals............................. 62
SECTION 3.05. Financial StatementS............................... 62
SECTION 3.06. No Material Adverse Change......................... 63
SECTION 3.07. Title to Properties; Possession Under Leases....... 63
SECTION 3.08. Subsidiaries....................................... 63
SECTION 3.09. Litigation; Compliance with Laws................... 64
SECTION 3.10. Agreements......................................... 64
SECTION 3.11. Federal Reserve Regulations........................ 64
SECTION 3.12. Investment Company Act; Public Utility
Holding Company Act................................ 65
SECTION 3.13. Use of Proceeds.................................... 65
SECTION 3.14. Tax Returns........................................ 65
SECTION 3.15. No Material Misstatements.......................... 65
SECTION 3.16. Employee Benefit Plans............................. 66
SECTION 3.17. Environmental Matters.............................. 66
SECTION 3.18. Insurance.......................................... 67
SECTION 3.19. Security Documents................................. 67
SECTION 3.20. Labor Matters...................................... 68
SECTION 3.21. Solvency........................................... 68
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Credit Events.................................. 69
SECTION 4.02. First Credit Event................................. 69
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Businesses and Properties............... 73
SECTION 5.02. Insurance.......................................... 73
SECTION 5.03. Obligations and Taxes.............................. 74
SECTION 5.04. Financial Statements, Reports, etc................. 74
SECTION 5.05. Litigation and Other Notices....................... 77
SECTION 5.06. Employee Benefits.................................. 77
SECTION 5.07. Maintaining Records; Access to Properties
and Inspections.................................... 78
SECTION 5.08. Use of Proceeds.................................... 78
SECTION 5.09. Compliance with Environmental Laws................. 78
SECTION 5.10. Further Assurances................................. 79
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness....................................... 80
SECTION 6.02. Liens.............................................. 81
SECTION 6.03. Sale and Lease-Back Transactions................... 83
SECTION 6.04. Investments, Loans and Advances.................... 83
SECTION 6.05. Mergers, Consolidations, Sales of Assets
and Acquisitions................................... 84
SECTION 6.06. Dividends and Distributions; Restrictions on
Ability of Subsidiaries to Pay Dividends........... 86
SECTION 6.07. Transactions with Affiliates....................... 86
SECTION 6.08. Business of Borrower and Subsidiaries.............. 86
SECTION 6.09. Indebtedness and Other Material Agreements......... 86
SECTION 6.10. Capital Expenditures............................... 87
SECTION 6.11. Leverage Ratio..................................... 87
SECTION 6.12. Interest Coverage Ratio............................ 87
SECTION 6.13. Fiscal Year........................................ 87
ARTICLE VII
Events of Default.................................................. 88
ARTICLE VIII
The Administrative Agent and the Collateral Agent.................. 92
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices............................................ 95
SECTION 9.02. Survival of Agreement.............................. 96
SECTION 9.03. Binding Effect..................................... 96
SECTION 9.04. Successors and Assigns............................. 96
SECTION 9.05. Expenses; Indemnity................................ 101
SECTION 9.06. Right of Setoff.................................... 102
SECTION 9.07. Applicable Law..................................... 103
SECTION 9.08. Waivers; Amendment................................. 103
SECTION 9.09. Interest Rate Limitation........................... 104
SECTION 9.10. Entire Agreement................................... 105
SECTION 9.11. Waiver of Jury Trial............................... 105
SECTION 9.12. Severability....................................... 105
SECTION 9.13. Counterparts....................................... 106
SECTION 9.14. Headings........................................... 106
SECTION 9.15. Jurisdiction; Consent to Service of Process........ 106
SECTION 9.16. Confidentiality.................................... 107
SCHEDULE 1.01(a) Existing Indebtedness
SCHEDULE 1.01(b) Guarantors
SCHEDULE 2.01 Commitments
SCHEDULE 3.08 Subsidiaries
SCHEDULE 3.09 Litigation
SCHEDULE 3.17 Environmental Matters
SCHEDULE 3.18 Insurance
SCHEDULE 6.01 Permitted Indebtedness
SCHEDULE 6.02 Permitted Liens
SCHEDULE 6.04(f)
EXHIBIT A Form of Administrative Questionnaire
EXHIBIT B Form of Assignment and Acceptance
EXHIBIT C Form of Borrowing Request
EXHIBIT D Form of Guarantee Agreement
EXHIBIT E Form of Indemnity, Subrogation and
Contribution Agreement
EXHIBIT F Form of Pledge Agreement
EXHIBIT G Form of Opinion of Ropes & Gray
CREDIT AGREEMENT dated as of August 30,
1995, among CONNECTOR HOLDING COMPANY, a
Delaware corporation ("Connector"); GILBERT
ENGINEERING CO., INC., a Delaware corporation
(the "Borrower"); the Lenders (as defined in
Article I); and CHEMICAL BANK, a New York
banking corporation, as issuing bank, as
administrative agent (in such capacity, the
"Administrative Agent") and as collateral agent
(in such capacity, the "Collateral Agent") for
the Lenders.
The Borrower has requested the Lenders to extend credit in the form
of (a) Term Loans (such term and each other capitalized term used but not
defined herein having the meaning given it in Article I) on the Closing Date,
in an aggregate principal amount not in excess of $22,000,000, and (b)
Revolving Loans at any time and from time to time prior to the Revolving
Credit Maturity Date, in an aggregate principal amount at any time outstanding
not in excess of $18,000,000. The Borrower has requested the Issuing Banks to
issue trade and standby letters of credit, in an aggregate face amount at any
time outstanding not in excess of $5,000,000, to support payment obligations
incurred in the ordinary course of business by the Borrower and its
Subsidiaries. The proceeds (x) of the Term Loans and up to $10,000,000 of the
Revolving Loans are to be used solely to repay (i) all amounts outstanding
under the GECC Credit Agreement and (ii) the full principal amount of and all
interest accrued under outstanding Connector Notes, and (y) the balance of the
Revolving Loans are to be used solely for the general corporate purposes of
the Borrower, including non-hostile acquisitions otherwise permitted herein.
The Lenders are willing to extend such credit to the Borrower and
the Issuing Banks are willing to issue letters of credit for the account of
the Borrower on the terms and subject to the conditions set forth herein.
Accordingly, the parties hereto agree as follows:
ARTICLE I. DEFINITIONS
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms shall have the meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any ABR Term Loan or ABR Revolving Loan.
"ABR Revolving Loan" shall mean any Revolving Loan bearing interest
at a rate determined by reference to the Alternate Base Rate in accordance
with the provisions of Article II.
"ABR Term Borrowing" shall mean a Borrowing comprised of ABR Term
Loans.
"ABR Term Loan" shall mean any Term Loan bearing interest at a rate
determined by reference to the Alternate Base Rate in accordance with the
provisions of Article II.
"Acquisition" shall mean the purchase by Oak, pursuant to the Stock
Purchase Agreement, of 100 percent of the issued and outstanding shares of the
capital stock of Lasertron for a gross purchase price no greater than
$112,000,000.
"Adjusted LIBO Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16 of 1 percent) equal to the product of
(a) the LIBO Rate in effect for such Interest Period and (b) Statutory
Reserves.
"Adjusted Oak" shall mean Oak and the Non-Connector Subsidiaries, on
a consolidated basis.
"Administrative Questionnaire" shall mean an Administrative
Questionnaire in the form of Exhibit A.
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by or is under common Control with
the person specified.
"Aggregate Revolving Credit Exposure" shall mean the aggregate
amount of the Lenders' Revolving Credit Exposures.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1 percent) equal to the
greater of (a) the Prime Rate in effect on such day and (b) the sum of the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1 percent. If
for any reason the Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason, including the
inability or failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms thereof, the Alternate Base Rate shall
be determined without regard to clause (b) of the preceding sentence, as
appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime
Rate or the Federal Funds Effective Rate shall be effective on the effective
date of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively. The term "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Administrative Agent as its prime
rate in effect at its principal office in New York City; each change in the
Prime Rate shall be effective on the date such change is publicly announced as
being effective. The term "Federal Funds Effective Rate" shall mean, for any
day, the weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds brokers,
as published 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 of the quotations for the day for such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
"Applicable Percentage" shall mean, for any day, with respect to any
Eurodollar Loan, or with respect to the Commitment Fees, as the case may be,
the applicable percentage set forth below under the caption "Eurodollar
Spread" or "Fee Percentage", as the case may be, based upon the Leverage Ratio
and Interest Coverage Ratio for Adjusted Oak, prior to the closing of the
Connector Purchase, and Consolidated Oak, on the date of and after the closing
of the Connector Purchase, as of the relevant Determination Date:
<TABLE>
<CAPTION>
Eurodollar Fee
Spread Percentage
------------- -------------
<S> <C> <C>
CATEGORY 1 0.500 percent 0.200 percent
Leverage Ratio less than or
or equal to 0.20 to 1.00
AND
Interest Coverage Ratio
greater than or equal to
6.0 to 1.0
CATEGORY 2 0.625 percent 0.250 percent
Leverage Ratio less than or
equal to 0.35 to 1.0
AND
Interest Coverage Ratio
greater than or equal to
5.0 to 1.0
CATEGORY 3 0.750 percent 0.300 percent
Leverage Ratio less than or
equal to 0.50 to 1.00
AND
Interest Coverage Ratio
greater than or equal to
4.0 to 1.0
CATEGORY 4 1.000 percent 0.375 percent
Leverage Ratio greater than
0.50 to 1.00
OR
Interest Coverage Ratio
less than 4.0 to 1.0
</TABLE>
The applicable Category shall be the one with the lowest spreads for
which both the Leverage Ratio and the Interest Coverage Ratio requirements are
satisfied. Each change in the Applicable Percentage resulting from a change
in the Leverage Ratio or Interest Coverage Ratio shall be effective with
respect to all Loans, Commitments and Letters of Credit outstanding on and
after the date on which the financial statements and certificates required by
Section 5.04(a) or 5.04(b) and Section 5.04(c) are delivered to the
Administrative Agent indicating such change until the date immediately
preceding the next due date for the delivery of such financial statements and
certificates. Notwithstanding the foregoing, at any time during which the
Borrower has failed to deliver the financial statements and certificates
required by Section 5.04(a) or 5.04(b) and Section 5.04(c), the Leverage Ratio
and Interest Coverage Ratio shall be deemed to be in Category 4 for purposes
of determining the Applicable Percentage.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee, and accepted by the Administrative
Agent, in the form of Exhibit B or such other form as shall be approved by the
Administrative Agent.
"Attributable Debt" in respect of a Sale and Lease-Back Transaction
shall mean, at the time of determination, the present value (discounted at the
actual rate of interest implicit in such transaction) of the obligation of the
lessee for net rental payments during the remaining term of the lease included
in such Sale and Lease-Back Transaction (including any period for which such
lease has been extended or may, at the option of the lessor, be extended).
"Bain" shall mean Bain Venture Capital, a California limited
partnership.
"Board" shall mean the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrowing" shall mean a group of Loans of a single Type made by the
Lenders on a single date and as to which a single Interest Period is in
effect.
"Borrowing Request" shall mean a request by the Borrower in
accordance with the terms of Section 2.03 and substantially in the form of
Exhibit C.
"Business Day" shall mean any day other than a Saturday, Sunday or
day on which banks in New York City are authorized or required by law to
close; provided, however, that when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Expenditures" means, (a) with respect to the Borrower on a
consolidated basis for any period, the additions to property, plant and
equipment and other capital expenditures of the Borrower and its subsidiaries
for such period, as the same are (or would be) set forth, in accordance with
generally accepted accounting principles, in a consolidated statement of cash
flow of the Borrower for such period, (b) with respect to Adjusted Oak for any
period, the additions to property, plant and equipment and other capital
expenditures of Oak and the Non-Connector Subsidiaries for such period, as the
same are (or would be) set forth, in accordance with generally accepted
accounting principles, in a consolidated statement of cash flow of Adjusted
Oak for such period, and (c) with respect to Consolidated Oak for any period,
the additions to property, plant and equipment and other capital expenditures
of Oak and the Subsidiaries for such period, as the same are (or would be) set
forth, in accordance with generally accepted accounting principles, in a
consolidated statement of cash flow of Consolidated Oak for such period.
"Capital Lease Obligations" of any person shall mean the obligations
of such person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Capital Stock" of any person shall mean any and all shares,
interests, rights to purchase, warrants, options, participation or other
equivalents of or interests in (however designated) equity of such person,
including any limited or general partnership interest and any limited
liability company membership interest, but excluding any debt securities
convertible into such equity.
A "Change in Control" shall be deemed to have occurred if (a) Oak
shall cease to own directly, beneficially and of record shares representing
100 percent of the aggregate ordinary voting power represented by the issued
and outstanding Capital Stock of Connector (such 100 percent to be reduced by
the percentage of such voting power represented by the shares of such Capital
Stock owned by the Investors, but in any event not to a percentage below 80
percent); or (b) Connector shall cease to own directly, beneficially and of
record, shares representing 100 percent of the aggregate ordinary voting power
represented by the issued and outstanding Capital Stock of Gilbert (such 100
percent to be reduced by the percentage of such voting power represented by
the shares of such Capital Stock owned by members of the management of Gilbert
party to the Management Stockholders Agreement, but in any event not to a
percentage below 85 percent).
"Closing Date" shall mean the date of the first Credit Event.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all the "Collateral" as defined in the
Security Documents.
"Commitment" shall mean, with respect to any Lender, such Lender's
Revolving Credit Commitment and Term Loan Commitment or any of such
Commitments, as the context may require.
"Commitment Fee" shall have the meaning assigned to such term in
Section 2.05(a).
"Confidential Information Memorandum" shall mean the Confidential
Information Memorandum of the Borrower dated August 1995.
"Connector Notes" shall mean the Senior Subordinated Notes issued by
Connector.
"Connector Pledge" shall mean the pledge by Oak of the shares it
owns of the Capital Stock of Connector pursuant to the Stockholders Agreement.
"Connector Purchase" shall mean the purchase by Oak of all shares of
the Capital Stock of Connector not owned by Oak, pursuant to Section 1.1 or
1.2 of the Stockholders Agreement.
"Consolidated Net Income" shall mean with respect to any person for
any period, the consolidated net income (or loss) of such person and its
subsidiaries, on a consolidated basis, for such period.
"Consolidated Net Worth" shall mean, as of any date, on a
consolidated basis for any person and its subsidiaries, (a) the sum of (i)
common and preferred stock (other than redeemable preferred stock) taken at
par or stated value, (ii) capital surplus relating to common and preferred
stock (other than redeemable preferred stock) and (iii) retained earnings (or
deficit) at such date minus (b) treasury stock at such date; provided,
however, that Consolidated Net Worth shall be adjusted to exclude the non-cash
charges incurred in connection with (x) the incremental expense of up to
$2,000,000 related to the write-up of Lasertron's inventory as a result of
purchase accounting and the charges related to in process research and
development costs of Lasertron immediately following the Acquisition, (y) the
write-off by the Borrower in fiscal 1995 of up to $1,800,000 of deferred
financing costs and booked original discount, and (z) purchase accounting
adjustments arising in connection with any acquisition (other than the
Acquisition and the Connector Purchase) consummated after the date of this
Agreement, in each case to the extent that such charges were deducted in any
determination of Consolidated Net Worth; provided, further, that the
Consolidated Net Worth of Adjusted Oak shall equal Consolidated Net Worth of
Oak minus the Consolidated Net Worth of Connector, after eliminating all
intercompany items.
"Consolidated Oak" shall mean Oak and its subsidiaries, on a
consolidated basis.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Credit Event" shall have the meaning assigned to such term in
Section 4.01.
"Current Assets" shall mean, as of any date, on a consolidated basis
for any person and its subsidiaries, all assets (other than cash and Permitted
Investments) which would be classified on a consolidated balance sheet of such
person and its subsidiaries as current assets at such date of determination.
"Current Liabilities" shall mean, as of any date, on a consolidated
basis for any person and its subsidiaries, all liabilities which would be
classified on a consolidated balance sheet of such person and its subsidiaries
as current liabilities (excluding the current portion of long term
Indebtedness) at such date of determination.
"Debt Service" shall mean, with respect to the Borrower or
Consolidated Oak, as applicable, for any period, Interest Expense of such
person for such period plus scheduled principal amortization of Total Debt of
such person for such period, but only if such amount is actually paid in cash.
"Default" shall mean any event or condition which upon notice, lapse
of time or both would constitute an Event of Default.
"Designated Financial Tests" shall be satisfied (a) for the purposes
of Section 6.05(c) (which relates to the right of the Borrower to make
acquisitions under certain circumstances), on the date of the proposed
acquisition, if (i) (A) the Leverage Ratio of (1) prior to the closing of the
Connector Purchase, the Borrower and its subsidiaries on a consolidated basis,
or (2) after the closing of the Connector Purchase, Consolidated Oak, in each
case is less than or equal to 0.55 to 1.00 as of such date and (B) the
Interest Coverage Ratio of (1) prior to the closing of the Connector Purchase,
the Borrower and its subsidiaries on a consolidated basis, or (2) after the
closing of the Connector Purchase, Consolidated Oak, in each case as of the
last day of the fiscal quarter most recently ended for which financial
statements and certificates required by Section 5.04(a) or 5.04(b) and Section
5.04(c) have been delivered was greater than or equal to 3.0 to 1.0, or (ii),
after the Connector Purchase (A) the sum of the aggregate Net Proceeds
received on or prior to such date (without giving effect to the provisos in
clauses (a) and (b) of the definition of "Net Proceeds") from (1) the issuance
or sale of any equity security of Oak and (2) the sale of the assets or
Capital Stock of O/E/N India Ltd. or WSNS, is at least $40,000,000, and (B) at
least $40,000,000 principal amount of outstanding terms loans under the Oak
Credit Agreement or, if less, the full principal amount of outstanding term
loans under the Oak Credit Agreement shall have been prepaid or shall
simultaneously be prepaid with such proceeds, and (b) for the purposes of
definition of "Net Proceeds" (which relates to the amount of proceeds of
certain assets or stock sales that must be applied to prepay Loans) and
Section 2.13(c) (which relates to the use of Excess Cash Flow to pay Term
Loans), for a complete fiscal quarter prior to a specified time if (i) (A) the
Leverage Ratio of (1) prior to the closing of the Connector Purchase, the
Borrower and its subsidiaries on a consolidated basis, or (2) after the
closing of the Connector Purchase, Consolidated Oak, in each case is less than
or equal to 0.55 to 1.00 on each day of a complete fiscal quarter ended prior
to such time (the "reference quarter") and (B) the Interest Coverage Ratio of
(1) prior to the closing of the Connector Purchase, the Borrower and its
subsidiaries on a consolidated basis, or (2) after the closing of the
Connector Purchase, Consolidated Oak, in each case as of the last day of the
fiscal quarter immediately prior to the reference quarter and as of the last
day of the reference quarter was greater than or equal to 3.0 to 1.0, or (ii)
after the closing of the Connector Purchase (A) the sum of the aggregate Net
Proceeds received on or prior to such date (without giving effect to the
provisos in clauses (a) and (b) of the definition of "Net Proceeds") from (1)
the issuance or sale of any equity security of Oak and (2) the sale of the
assets or Capital Stock of O/E/N India Ltd. or WSNS, is at least $40,000,000
and (B) at least $40,000,000 principal amount of outstanding term loans under
the Oak Credit Agreement or, if less, the full principal amount of outstanding
term loans under the Oak Credit Agreement shall have been prepaid or shall
simultaneously be prepaid with such proceeds. For the purposes of Section
6.05(c) (which relates to the right of the Borrower to make acquisitions under
certain circumstances), the Designated Financial Tests shall be satisfied on a
pro forma basis after giving effect to an acquisition if (a) the Leverage
Ratio of (i) prior to the closing of the Connector Purchase, the Borrower and
its subsidiaries on a consolidated basis, or (ii) after the closing of the
Connector Purchase, Consolidated Oak, in each case is less than or equal to
0.55 to 1.00 as of the date of consummation of such acquisition, giving effect
to such acquisition and the financing thereof, and (b) the Interest Coverage
Ratio (i) prior to the closing of the Connector Purchase, the Borrower and its
subsidiaries on a consolidated basis, or (b) after the closing of the
Connector Purchase, Consolidated Oak, in each case was greater than or equal
to the 3.0 to 1.0 as of the last day of the last complete fiscal quarter ended
prior to such acquisition, as if such acquisition and the financing thereof
had been consummated on October 1, 1995, or, if later, the first day of the
four fiscal quarter period ended on such last day.
"Determination Date" shall mean, on any date, the last day of the
most recent fiscal quarter for which financial statements and certificates
have been delivered pursuant to Section 5.04(a) or 5.04(b) and Section
5.04(c).
"dollars" or "$" shall mean lawful money of the United States of
America.
"Domestic Subsidiaries" shall mean all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"EBITDA" shall mean, for any period, with respect to the Borrower,
the Consolidated Net Income of the Borrower and its subsidiaries, with respect
to Consolidated Oak, the Consolidated Net Income of Oak and its subsidiaries,
and with respect to Adjusted Oak, the Consolidated Net Income of Oak and the
Non-Connector Subsidiaries, in each case for such period plus, to the extent
deducted in computing such Consolidated Net Income, without duplication, the
sum of (a) income tax expense, (b) interest expense, (c) depreciation and
amortization expense, (d) any special charges and any extraordinary or non-
recurring losses, (e) non-cash charges incurred in connection with (i) in the
case of EBITDA of Consolidated Oak or Adjusted Oak, the incremental expense of
up to $2,000,000 related to the write-up of Lasertron's inventory as a result
of purchase accounting and the charges related to in process research and
development costs of Lasertron immediately following the Acquisition, (ii) in
the case of the EBITDA of the Borrower or Consolidated Oak, the write off by
the Borrower in fiscal 1995 of up to $1,800,000 of deferred financing costs
and booked original issue discount and (iii) purchase accounting adjustments
arising in connection with any acquisition (other than the Acquisition and the
Connector Purchase) consummated after the date of this Agreement, (f) minority
interests in the net income of the Borrower, Adjusted Oak or Consolidated Oak,
as the case may be, and (g) other non-cash items reducing Consolidated Net
Income, minus, to the extent added in computing such Consolidated Net Income,
without duplication, (i) interest income, (ii) extraordinary or non-recurring
gains and (iii) income of any person (other than any subsidiary of such
person) for any period in excess of dividends or distributions actually
received in cash from such person by the Borrower or a subsidiary of the
Borrower or Oak or a subsidiary of Oak, as applicable, during such period;
provided, however, that for the fiscal quarters ending on March 31, 1995, June
30, 1995, and September 30, 1995, EBITDA for Adjusted Oak and for Consolidated
Oak shall be computed on a pro forma basis as if the Acquisition had been
completed on December 31, 1994.
"environment" shall mean ambient air, surface water and groundwater
(including potable water, navigable water and wetlands), the land surface or
subsurface strata, the workplace or as otherwise defined in any Environmental
Law.
"Environmental Claim" shall mean any written accusation, allegation,
notice of violation, claim, demand, order, directive, cost recovery action or
other cause of action by, or on behalf of, any Governmental Authority or any
person for damages, injunctive or equitable relief, personal injury (including
sickness, disease or death), Remedial Action costs, tangible or intangible
property damage, natural resource damages, nuisance, pollution, any adverse
effect on the environment caused by any Hazardous Material, or for fines,
penalties or restrictions, resulting from or based upon: (a) the existence, or
the continuation of the existence, of a Release (including sudden or non-
sudden, accidental or non-accidental Releases); (b) exposure to any Hazardous
Material; (c) the presence, use, handling, transportation, storage, treatment
or disposal of any Hazardous Material; or (d) the violation or alleged
violation of any Environmental Law or Environmental Permit.
"Environmental Law" shall mean any and all applicable present 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, the management,
Release or threatened Release of any Hazardous Material or to health and
safety matters, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986, 42 U.S.C. Sec.Sec. 9601 et seq. (collectively
"CERCLA"), the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and Hazardous and Solid Amendments of
1984, 42 U.S.C. Sec.Sec. 6901 et seq., the Federal Water Pollution Control
Act, as amended by the Clean Water Act of 1977, 33 U.S.C. Sec.Sec. 1251 et
seq., the Clean Air Act of 1970, as amended 42 U.S.C. Sec.Sec. 7401 et seq.,
the Toxic Substances Control Act of 1976, 15 U.S.C. Sec.Sec. 2601 et seq., the
Occupational Safety and Health Act of 1970, as amended, 29 U.S.C. Sec.Sec. 651
et seq., the Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Sec.Sec. 11001 et seq., the Safe Drinking Water Act of 1974, as
amended, 42 U.S.C. Sec.Sec. 300(f) et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Sec.Sec. 1801 et seq., and any similar or
implementing state or local law, and all amendments or regulations promulgated
thereunder.
"Environmental Permit" shall mean any permit, approval,
authorization, certificate, license, variance, filing or permission required
by or from any Governmental Authority pursuant to any Environmental Law.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as the same may be amended from time to time.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code, or solely for purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder, with respect to a
Plan; (b) the adoption of any amendment to a Plan that would require the
provision of security pursuant to Section 401(a)(29) of the Code or Section
307 of ERISA; (c) the existence with respect to any Plan of an "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (d) the filing pursuant to Section 412(d) of
the Code or Section 303(d) of ERISA of an application for a waiver of the
minimum funding standard with respect to any Plan; (e) the incurrence of any
liability under Title IV of ERISA with respect to the termination of any Plan
or the withdrawal or partial withdrawal of the Borrower or any of its ERISA
Affiliates from any Plan or Multiemployer Plan; (f) the receipt by the
Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any
notice relating to the intention to terminate any Plan or Plans or to appoint
a trustee to administer any Plan; (g) the receipt by the Borrower or any ERISA
Affiliate of any notice concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA; (h) the occurrence
of a "prohibited transaction" with respect to which the Borrower or any of its
Subsidiaries is a "disqualified person" (within the meaning of Section 4975 of
the Code) or with respect to which the Borrower or any such Subsidiary could
otherwise be liable; and (i) any other event or condition with respect to a
Plan or Multiemployer Plan that could reasonably be expected to result in
liability of the Borrower, other than contributions and payments in the
ordinary course of business pursuant to the terms of such Plan or
Multiemployer Plan.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Loan" shall mean any Eurodollar Revolving Loan or
Eurodollar Term Loan.
"Eurodollar Revolving Loan" shall mean any Revolving Loan bearing
interest at a rate determined by reference to the Adjusted LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Term Borrowing" shall mean a Borrowing comprised of
Eurodollar Term Loans.
"Eurodollar Term Loan" shall mean any Term Loan bearing interest at
a rate determined by reference to the Adjusted LIBO Rate in accordance with
the provisions of Article II.
"Event of Default" shall have the meaning assigned to such term in
Article VII.
"Excess Cash Flow" shall mean, for any fiscal year, EBITDA of the
Borrower, prior to the Connector Purchase, and Consolidated Oak, after the
Connector Purchase, for such fiscal year, minus, without duplication, (a) Debt
Service of the Borrower, prior to the Connector Purchase, and Consolidated
Oak, after the Connector Purchase, for such fiscal year, (b) any voluntary
prepayments of Term Loans during such fiscal year, (c) permitted Capital
Expenditures by the Borrower and its subsidiaries, prior to the Connector
Purchase, or Oak and its subsidiaries, after the Connector Purchase, on a
consolidated basis during such fiscal year which are paid in cash, (d) taxes
paid in cash by the Borrower and its subsidiaries, prior to the Connector
Purchase, or Oak and its subsidiaries, after the Connector Purchase, on a
consolidated basis during such fiscal year, (e) an amount equal to any
increase in Working Capital of the Borrower, prior to the Connector Purchase,
or of Consolidated Oak, after the Connector Purchase, for such fiscal year,
and (f) to the extent included in determining EBITDA, all items of revenue or
income which did not result from a cash payment to the Borrower and its
subsidiaries, prior to the Connector Purchase, or Oak and its subsidiaries,
after the Connector Purchase, during such fiscal year plus, without
duplication, (i) an amount equal to any decrease in Working Capital of the
Borrower prior to the Connector Purchase, or of Consolidated Oak, after the
Connector Purchase, for such fiscal year and (ii) to the extent subtracted in
determining EBITDA, all items of expense which did not result from a cash
payment by the Borrower and its subsidiaries, prior to the Connector Purchase,
or Oak and its subsidiaries, after the Connector Purchase, during such fiscal
year.
"Existing Indebtedness" shall mean the Indebtedness of Connector,
the Borrower and the other Subsidiaries listed in Schedule 1.01(a).
"Fee Letter" shall mean the Fee Letter dated August 1, 1995, between
Oak and the Administrative Agent.
"Fees" shall mean the Commitment Fees, the LC Participation Fees and
the Issuing Bank Fees.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, Treasurer or Controller, or
any vice president performing the functions of any such officer, of such
corporation.
"Foreign Subsidiary" shall mean any Subsidiary that is not a
Domestic Subsidiary.
"GAAP" shall mean generally accepted accounting principles applied
on a consistent basis.
"GECC Credit Agreement" shall mean the Credit Agreement dated as of
December 23, 1992, as amended, among General Electric Capital Corporation, as
agent, the lenders party thereto, Connector and the Borrower.
"Governmental Authority" shall mean any Federal, state, local or
foreign court or governmental agency, authority, instrumentality or regulatory
body.
"Guarantee" of or by any person shall mean any obligation,
contingent or otherwise, of such person guaranteeing or having the economic
effect of guaranteeing any Indebtedness of any other person (the "primary
obligor") in any manner, whether directly or indirectly, and including any
obligation of such person, direct or indirect, (a) to purchase or pay (or
advance or supply funds for the purchase or payment of) such Indebtedness or
to purchase (or to advance or supply funds for the purchase of) any security
for the payment of such Indebtedness, (b) to purchase or lease property,
securities or services for the purpose of assuring the owner of such
Indebtedness of the payment of such Indebtedness or (c) to maintain working
capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness; provided, however, that the term Guarantee shall not
include endorsements for collection or deposit in the ordinary course of
business.
"Guarantee Agreement" shall mean the Guarantee Agreement,
substantially in the form of Exhibit D, made by the Guarantors in favor of the
Collateral Agent for the benefit of the Secured Parties.
"Guarantors" shall mean each person listed on Schedule 1.01(b) and
each other person that becomes party to the Guarantee Agreement as a
Guarantor, and the permitted successors and assigns of each such person.
"Hazardous Materials" shall mean 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 ("PCBs")
or PCB-containing materials or equipment, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
"Inactive Subsidiary" shall mean any Subsidiary that (a) does not
carry on any business and (b) has total assets of not more than $10,000.
"Indebtedness" of any person shall mean, without duplication, (a)
all obligations of such person for borrowed money, (b) all obligations of such
person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such person upon which interest charges are customarily paid,
(d) all obligations of such person under conditional sale or other title
retention agreements relating to property or assets purchased by such person,
(e) all obligations of such person issued or assumed as the deferred purchase
price of property or services (excluding trade accounts payable and accrued
obligations incurred in the ordinary course of business), (f) all Indebtedness
of others secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such person, whether or not the obligations
secured thereby have been assumed, (g) all Guarantees by such person of
Indebtedness of others, (h) all Capital Lease Obligations of such person, (i)
all obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange
rate hedging arrangements and (j) all obligations of such person as an account
party in respect of letters of credit and bankers' acceptances. The
Indebtedness of any person shall include the Indebtedness of any partnership
in which such person is a general partner.
"Indemnity, Subrogation and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement, substantially in the form
of Exhibit E, among the Borrower, the Guarantors and the Collateral Agent.
"Interest Coverage Ratio" shall mean, with respect to any person,
the ratio as of the last day of any fiscal quarter, for the four fiscal
quarter period ended as of such day of (a) EBITDA minus Capital Expenditures
to (b) Interest Expense; provided, however, that for purposes of calculating
Interest Expense as of the last day of each of the fiscal quarters ending on
December 31, 1995, March 31, 1996, and June 30, 1996, the amount determined
pursuant to clause (b) above shall be determined by multiplying Interest
Expense for the period commencing October 1, 1995, and ending as of the end of
such fiscal period (i) by 4, in the case of the fiscal quarter ending December
31, 1995, (ii) by 2, in the case of the fiscal quarter ending March 31, 1996,
and (iii) by 4/3, in the case of the fiscal quarter ending June 30, 1996.
"Interest Expense" shall mean, with respect to the Borrower,
Consolidated Oak or Adjusted Oak, in each case on a consolidated basis for any
period, interest accrued or paid by the Borrower and its subsidiaries, in the
case of the Borrower, Oak and its subsidiaries, in the case of Consolidated
Oak, and Oak and the Non-Connector Subsidiaries, in the case of Adjusted Oak,
during such period in respect of Total Debt of such person, excluding, in each
case, amortization of deferred financing charges.
"Interest Payment Date" shall mean, with respect to any Loan, the
last day of the Interest Period applicable to the Borrowing of which such Loan
is a part and, in the case of a Eurodollar Borrowing with an Interest Period
of more than three months' duration, each day that would have been an Interest
Payment Date had successive Interest Periods of three months' duration been
applicable to such Borrowing, and, in addition, in the case of a Eurodollar
Borrowing, the date of any prepayment of such Borrowing or conversion of such
Borrowing to a Borrowing of a different Type.
"Interest Period" shall mean (a) as to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on the
last day) in the calendar month that is 1, 2, 3 or 6 months thereafter, as the
Borrower may elect and (b) as to any ABR Borrowing, the period commencing on
the date of such Borrowing and ending on the earliest of (i) the next
succeeding March 31, June 30, September 30 or December 31, and (ii) the
Revolving Credit Maturity Date or the Term Loan Maturity Date, as applicable;
provided, however, that if any Interest Period would end on a day other than a
Business Day, such Interest Period shall be extended to the next succeeding
Business Day unless, in the case of a Eurodollar Borrowing only, such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to but
excluding the last day of such Interest Period.
"Investors" shall have the meaning given to such term in the
definition of "Stockholders Agreement".
"Issuing Bank" shall mean (a) Chemical Bank, in its capacity as
issuer of Letters of Credit, and (b) any other Issuing Bank appointed under
Section 2.22(i).
"Issuing Bank Fees" shall have the meaning assigned to such term in
Section 2.05(b).
"Lasertron" shall mean Lasertron, Inc., a Massachusetts corporation.
"L/C Commitment" shall mean the commitment of each Issuing Bank to
issue Letters of Credit pursuant to Section 2.22.
"L/C Disbursement" shall mean a payment or disbursement made by any
Issuing Bank pursuant to a Letter of Credit.
"L/C Exposure" shall mean at any time the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate principal amount of all L/C Disbursements that have not yet been
reimbursed at such time. The L/C Exposure of any Revolving Credit Lender at
any time shall mean its Pro Rata Percentage of the aggregate L/C Exposure at
such time.
"L/C Participation Fee" shall have the meaning assigned to such term
in Section 2.05(b).
"Lenders" shall mean (a) the financial institutions listed on
Schedule 2.01 (other than any such financial institution that has ceased to be
a party hereto pursuant to an Assignment and Acceptance) and (b) any financial
institution that has become a party hereto pursuant to an Assignment and
Acceptance.
"Letter of Credit" shall mean any letter of credit issued pursuant
to Section 2.22.
"Leverage Ratio" shall mean, with respect to any person on any date,
the ratio of (a) Total Debt of such person as of such date to (b) the sum of
Consolidated Net Worth plus Total Debt, in each case of such person as of such
date.
"LIBO Rate" shall mean, with respect to any Eurodollar Borrowing,
the rate (rounded upwards, if necessary, to the next 1/16 of 1 percent) at
which dollar deposits approximately equal in principal amount to the
Administrative Agent's portion of such Eurodollar Borrowing and for a maturity
comparable to such Interest Period are offered to the principal London office
of the Administrative Agent in immediately available funds by major banks in
the London interbank market at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period.
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed
of trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.
"Loan Documents" shall mean this Agreement, the Letters of Credit,
the Guarantee Agreement, the Security Documents and the Indemnity, Subrogation
and Contribution Agreement.
"Loan Parties" shall mean the Borrower and the Guarantors, other
than, with respect to Article III, Section 4.01, Section 4.02(d) and clauses
(a), (c) and (k) of Article VII, Oak and the Non-Connector Subsidiaries.
"Loans" shall mean the Revolving Loans and the Term Loans.
"Management Stockholders Agreement" shall mean the Management
Stockholders Agreement dated as of December 23, 1992, among Gilbert
Engineering Acquisition Co., Inc., Connector, Connector Acquisition Company,
Oak, certain investors party thereto and certain members of the management of
the Borrower party thereto.
"Margin Stock" shall have the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" shall mean (a) a materially adverse effect
on the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its subsidiaries taken as a whole, (b)
material impairment of the ability of Connector, the Borrower or any
Subsidiary to perform any of its obligations under any Loan Document to which
it is or will be a party or (c) material impairment of the rights of or
benefits available to the Lenders under any Loan Document.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" shall mean:
(a) 100 percent of the cash proceeds actually received by the
Borrower or any of its subsidiaries, prior to the Connector Purchase, or by
Oak or any of its subsidiaries, after the Connector Purchase (including, when
received, any cash payments in respect of principal of a note or installment
receivable evidencing or forming part of the purchase price or a purchase
price adjustment receivable or otherwise and including casualty insurance
settlements and condemnation awards, but only as and when received), net of
(i) attorneys' fees, accountants' fees, investment banking fees, survey costs,
title insurance premiums, and related search and recording charges, transfer
taxes, deed or mortgage recording taxes, required debt payments (other than
pursuant hereto), other customary expenses and brokerage, consultant and other
customary fees actually incurred in connection therewith and (ii) taxes paid
or payable as a result thereof (including withholding taxes incurred in
connection with cross-border transactions, if applicable, and including taxes
estimated by the Borrower to be payable as a result thereof or as a result of
such transactions), from any loss, damage, destruction or condemnation, or any
sale, transfer or other disposition (including any sale and leaseback of
assets and any mortgage or lease of real property) to any person, of any asset
or assets of the Borrower or any of its subsidiaries (including any issuance
or sale by any subsidiary of the Borrower of any of its equity securities),
prior to the Connector Purchase, or of Oak or any of its subsidiaries
(including any issuance or sale by any subsidiary of Oak of any of its equity
securities), after the Connector Purchase (other than sales of assets
expressly permitted by clause (a) of Section 6.05); provided, however, that
(A) the Net Proceeds from any sale of tangible personal property shall be
reduced by an amount that the Borrower certifies in writing to the
Administrative Agent has been or will be reinvested by the Borrower or the
applicable subsidiary or Oak or the applicable subsidiary of Oak, as
applicable, in the purchase of like property (provided that any amount not so
reinvested within 90 days of receipt shall immediately become Net Proceeds),
(B) proceeds received from the sale of the assets or Capital Stock of O/E/N
India Ltd. or WSNS shall not constitute Net Proceeds if the Designated
Financial Tests had been satisfied for a complete fiscal quarter prior to the
date of such sale, and (C) with respect to any fiscal year, no such proceeds
realized in any fiscal year shall constitute Net Proceeds except and only to
the extent that all such proceeds shall, in the aggregate, exceed $500,000 for
such fiscal year; and
(b) after the Connector Purchase, 100 percent of the cash proceeds
from the issuance or the sale by Oak of any equity security of Oak, net of all
taxes and fees, discounts, commissions, costs and other expenses incurred in
connection with such issuance or sale; provided, however, that proceeds from
any issuance or sale of equity shall not constitute Net Proceeds if the
Designated Financial Tests had been satisfied for a complete fiscal quarter
prior to the date of such issuance or sale.
"Non-Connector Subsidiary" shall mean any subsidiary of Oak that is
not Connector, the Borrower or any other Subsidiary.
"Oak" shall mean Oak Industries Inc., a Delaware corporation.
"Oak Collateral" shall have the meaning given to the term
"Collateral" in the Oak Credit Agreement.
"Oak Credit Agreement" shall mean the Credit Agreement dated as of
the date hereof among Oak, the lenders party thereto and Chemical Bank, as
issuing bank and as administrative agent and collateral agent for the lenders
party thereto.
"Oak Guarantors" shall have the meaning given to the term
"Guarantors" in the Oak Credit Agreement.
"Oak Pledge Agreement" shall have the meaning given to the term
"Pledge Agreement" in the Oak Credit Agreement.
"Obligations" shall mean, collectively, (a) the due and punctual
payment of (i) the principal of and premium, if any, and interest (including
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by the Borrower under this
Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral, (iii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations
incurred during the pendency of any bankruptcy, insolvency, receivership or
other similar proceeding, regardless of whether allowed or allowable in such
proceeding), of the Loan Parties to the Secured Parties under this Agreement
and the other Loan Documents, (iv) any amount in respect of the foregoing that
the Administrative Agent, the Collateral Agent, any Issuing Bank or any
Lender, in its sole discretion, may elect to pay or advance under this
Agreement or any other Loan Document on behalf of any Loan Party after the
occurrence and during the continuation of a Default or an Event of Default and
(v) unless the applicable Lender otherwise agrees, all monetary obligations of
the Borrower and its subsidiaries under each interest rate protection
agreement, foreign currency exchange agreement and other interest or exchange
rate hedging agreement with any Lender and (b) the due and punctual
performance of all covenants, agreements, obligations and liabilities of the
Loan Parties under or pursuant to this Agreement and the other Loan Documents.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred
to and defined in ERISA.
"Permitted Other Acquisitions" shall have the meaning given such
term in Section 6.05(d).
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, (i) the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America) or (ii) any state
or municipality of the United States rated, at the date of acquisition, A or
higher by Standard & Poor's and A or higher by Moody's Investors Service,
Inc., in each case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial paper maturing within 270 days from
the date of acquisition thereof and having, at such date of acquisition, a
rating of A-1 or higher from Standard & Poor's or a rating of P-1 or higher
from Moody's Investors Service, Inc.;
(c) any mutual fund or other pooled investment vehicle rated A or
higher by Moody's Investors Service, Inc., and A or higher by Standard &
Poor's, which invests principally in obligations described above;
(d) investments in certificates of deposit, banker's acceptances and
time deposits maturing within one year from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit accounts
issued or offered by, any domestic office of (i) any commercial bank organized
under the laws of the United States of America or any State thereof which has
a combined capital and surplus and undivided profits of not less than
$250,000,000 or (ii) any Lender; and
(e) other investment instruments approved in writing by the Required
Lenders and offered by financial institutions which have a combined capital
and surplus and undivided profits of not less than $250,000,000.
"Permitted Release" shall have the meaning given such term in
Section 5.10.
"person" shall mean any natural person, corporation, business trust,
joint venture, association, company, partnership, limited liability company or
government, or any agency or political subdivision thereof.
"Plan" shall mean any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 307 of ERISA, and in respect of which the Borrower
or any ERISA Affiliate is (or, if such plan were terminated, would under
Section 4069 of ERISA be deemed to be) an "employer" as defined in Section
3(5) of ERISA.
"Pledge Agreement" shall mean the Pledge Agreement, substantially in
the form of Exhibit F, among Connector, the Borrower, Oak and its subsidiaries
party thereto, certain members of the management of the Borrower party thereto
and the Collateral Agent for the benefit of the Secured Parties.
"Pro Rata Percentage" of any Revolving Credit Lender at any time
shall mean the percentage of the Total Revolving Credit Commitment
represented by such Lender's Revolving Credit Commitment. In the event the
Revolving Credit Commitments shall have expired or been terminated, the Pro
Rata Percentages shall be determined on the basis of the Revolving Credit
Commitments most recently in effect, but giving effect to any assignments
pursuant to Section 9.04.
"Register" shall have the meaning given such term in Section
9.04(d).
"Regulation G" shall mean Regulation G of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation U" shall mean Regulation U of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Regulation X" shall mean Regulation X of the Board as from time to
time in effect and all official rulings and interpretations thereunder or
thereof.
"Release" shall mean 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.
"Remedial Action" shall mean: (a) "remedial action" as such term is
defined in CERCLA, 42 U.S.C. Section 9601(24); and (b) any other action
required by any Governmental Authority or voluntarily undertaken to (x) clean
up, remove, treat, abate or in any other way address any Hazardous Material in
the environment; (y) prevent the Release or threat of Release, or minimize the
further Release of any Hazardous Material so it does not migrate or endanger
or threaten to endanger public health, welfare or the environment; or (z)
perform studies and investigations in connection with, or as a precondition
to, clause (x) or (y) above.
"Reportable Event" shall mean any reportable event as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than a Plan maintained by an ERISA Affiliate that is considered an
ERISA Affiliate only pursuant to subsection (m) or (o) of Code Section 414).
"Required Lenders" shall mean, at any time, Lenders having Loans,
L/C Exposure and unused Revolving Credit Commitments and Term Loan Commitments
representing greater than 50 percent of the sum of all Loans outstanding, L/C
Exposure and unused Revolving Credit Commitments and Term Loan Commitments at
such time.
"Responsible Officer" of any corporation shall mean any executive
officer or Financial Officer of such corporation and any other officer or
similar official thereof responsible for the administration of the obligations
of such corporation in respect of this Agreement.
"Revolving Credit Borrowing" shall mean a Borrowing comprised of
Revolving Loans.
"Revolving Credit Commitment" shall mean, with respect to each
Lender, the commitment of such Lender to make Revolving Loans hereunder as set
forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which
such Lender assumed its Revolving Credit Commitment, as applicable, as the
same may be (a) reduced from time to time pursuant to Section 2.09 and (b)
reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 9.04.
"Revolving Credit Exposure" shall mean, with respect to any Lender
at any time, the aggregate principal amount at such time of all outstanding
Revolving Loans of such Lender, plus the aggregate amount at such time of such
Lender's L/C Exposure.
"Revolving Credit Lender" shall mean a Lender with a Revolving
Credit Commitment.
"Revolving Credit Maturity Date" shall mean September 30, 2000.
"Revolving Loans" shall mean the revolving loans made by the Lenders
to the Borrower pursuant to clause (b) of Section 2.01. Each Revolving Loan
shall be a Eurodollar Revolving Loan or an ABR Revolving Loan.
"Sale and Lease-Back Transaction" shall mean any arrangement,
directly or indirectly, whereby Connector, the Borrower or any other
Subsidiary shall sell or transfer to any person any property, real or
personal, used or useful in its business, whether now owned or hereafter
acquired, and thereafter Connector, the Borrower or any other Subsidiary shall
rent or lease such property, or other property that it intends to use for
substantially the same purpose or purposes as the property being sold or
transferred, from such person or any of its Affiliates.
"Secured Parties" shall have the meaning assigned to such term in
the Pledge Agreement.
"Security Documents" shall mean the Pledge Agreement and each of the
other instruments and documents executed and delivered pursuant to the
foregoing or pursuant to Section 5.10.
"Statutory Reserves" shall mean a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including
any marginal, special, emergency or supplemental reserves) expressed as a
decimal established by the Board and any other banking authority, domestic or
foreign, to which the Administrative Agent or any Lender (including any
branch, Affiliate, or other fronting office making or holding a Loan) is
subject for Eurocurrency Liabilities (as defined in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute Eurocurrency
Liabilities and to be subject to such reserve requirements without benefit of
or credit for proration, exemptions or offsets that may be available from time
to time to any Lender under such Regulation D. Statutory Reserves shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Stockholders Agreement" shall mean the Stockholders Agreement dated
as of December 22, 1992, among Connector, Oak, certain investors from time to
time party thereto (the "Investors") and Bain.
"Stock Purchase Agreement" shall mean the Stock Purchase Agreement
among Lasertron, the stockholders of Lasertron party thereto and Oak related
to the Acquisition of Lasertron by Oak and signed contemporaneously with this
Agreement.
"subsidiary" shall mean, with respect to any person (herein referred
to as the "parent"), any corporation, partnership, association or other
business entity of which securities or other ownership interests representing
more than 50 percent of the equity or more than 50 percent of the ordinary
voting power or more than 50 percent of the general partnership interests are,
at the time any determination is being made, owned, controlled or held by the
parent.
"Subsidiary" shall mean any subsidiary of Connector.
"Term Borrowing" shall mean a Borrowing comprised of Term Loans.
"Term Loan Commitment" shall mean, with respect to each Lender, the
commitment of such Lender to make a Term Loan hereunder as set forth on
Schedule 2.01, or in the Assignment and Acceptance pursuant to which such
Lender assumed its Term Loan Commitment, as applicable, as the same may be (a)
reduced from time to time pursuant to Section 2.09 and (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04
"Term Loan Maturity Date" shall mean September 30, 2000.
"Term Loan Closing Date" shall mean the date on which Term Loans are
made.
"Term Loan Repayment Amount" shall have the meaning assigned to such
term in Section 2.11(a).
"Term Loan Repayment Date" shall have the meaning assigned to such
term in Section 2.11(a).
"Term Loans" shall mean the term loans made by the Lenders to the
Borrower pursuant to clause (a) of Section 2.01. Each Term Loan shall be
either a Eurodollar Term Loan or an ABR Term Loan.
"Total Debt" shall mean, with respect to the Borrower, Consolidated
Oak or Adjusted Oak, in each case on a consolidated basis at any time, all
Indebtedness (other than Indebtedness of the type referred to in clause (i) of
the definition of the term "Indebtedness" or Indebtedness of the type referred
to in clauses (f) and (g) of such definition to the extent that the
Indebtedness of the other person referred to in such clauses (f) and (g) is
Indebtedness of the type referred to in clause (i)) of the Borrower and its
subsidiaries, in the case of the Borrower, Oak and its subsidiaries, in the
case of Consolidated Oak, and Oak and the Non-Connector Subsidiaries, in the
case of Adjusted Oak, in each case at such time.
"Total Revolving Credit Commitment" shall mean, at any time, the
aggregate amount of the Revolving Credit Commitments, as in effect at such
time.
"Transactions" shall have the meaning assigned to such term in
Section 3.02.
"Type", when used in respect of any Loan or Borrowing, shall refer
to the Rate by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, the term "Rate"
shall include the Adjusted LIBO Rate and the Alternate Base Rate.
"wholly owned Subsidiary" of any person shall mean a subsidiary of
such person of which securities (except for directors' qualifying shares) or
other ownership interests representing 100 percent of the equity or 100
percent of the ordinary voting power or 100 percent of the general partnership
interests are, at the time any determination is being made, owned, controlled
or held by such person or one or more wholly owned subsidiaries of such person
or by such person and one or more wholly owned subsidiaries of such person.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan
as a result of a complete or partial withdrawal from such Multiemployer Plan,
as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Working Capital" shall mean, with respect to any person and its
subsidiaries on a consolidated basis at any date of determination, Current
Assets for such person at such date of determination minus Current Liabilities
for such person at such date of determination; provided, however, that the
Working Capital of Adjusted Oak shall equal the Working Capital of Oak minus
the Working Capital of Connector, after eliminating all intercompany items.
"WSNS" shall mean the Borrower's interest in the joint venture Video
44.
"WTD" shall mean Wuhan Telecommunication Devices Company, a Sino
foreign joint venture limited liability company.
SECTION 1.02. Terms Generally. The definitions in Section 1.01
shall apply equally to both the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". All references herein to Articles, Sections, Exhibits
and Schedules shall be deemed references to Articles and Sections of, and
Exhibits and Schedules to, this Agreement unless the context shall otherwise
require. Except as otherwise expressly provided herein, (a) any reference in
this Agreement to any Loan Document shall mean such document as amended,
restated, supplemented or otherwise modified from time to time and (b) all
terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; provided, however, that for
purposes of determining compliance with the covenants contained in Article VI,
all accounting terms herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with GAAP as in effect on
the date of this Agreement and applied on a basis consistent with the
application used in the financial statements referred to in Section 3.05.
ARTICLE II. THE CREDITS
SECTION 2.01. Commitments. Subject to the terms and conditions and
relying upon the representations and warranties herein set forth, each Lender
agrees, severally and not jointly, (a) to make a Term Loan to the Borrower on
the Closing Date, but in no event later than the termination of the Term Loan
Commitment of such Lender in accordance with the terms hereof, in an aggregate
principal amount not to exceed its Term Loan Commitment, and (b) to make
Revolving Loans to the Borrower, at any time and from time to time on or after
the date hereof, and until the earlier of the Revolving Credit Maturity Date
and the termination of the Revolving Credit Commitment of such Lender in
accordance with the terms hereof, in an aggregate principal amount at any time
outstanding that will not result in (i) such Lender's Revolving Credit
Exposure exceeding (ii) such Lender's Revolving Credit Commitment. Within the
limits set forth in clause (c) of the preceding sentence and subject to the
terms, conditions and limitations set forth herein, the Borrower may borrow,
pay or prepay and reborrow Revolving Loans. Amounts paid or prepaid in
respect of Term Loans may not be reborrowed.
SECTION 2.02. Loans. (a) Each Loan shall be made as part of a
Borrowing consisting of Loans made by the Lenders ratably in accordance with
their applicable Commitments; provided, however, that the failure of any
Lender to make any Loan shall not in itself relieve any other Lender of its
obligation to lend hereunder (it being understood, however, that no Lender
shall be responsible for the failure of any other Lender to make any Loan
required to be made by such other Lender). Except for Loans deemed made
pursuant to Section 2.02(f), the Loans comprising any Borrowing shall be in an
aggregate principal amount that is (i) an integral multiple of $1,000,000 or
(ii) equal to the remaining available balance of the applicable Commitments.
(b) Subject to Sections 2.08 and 2.15, each Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may
request pursuant to Section 2.03. Each Lender may at its option make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided, however, that any exercise of such option
shall not affect the obligation of the Borrower to repay such Loan in
accordance with the terms of this Agreement. Borrowings of more than one Type
may be outstanding at the same time; provided, however, that the Borrower
shall not be entitled to request any Borrowing that, if made, would result in
more than ten Eurodollar Borrowings outstanding hereunder at any time. For
purposes of the foregoing, Borrowings having different Interest Periods,
regardless of whether they commence on the same date, shall be considered
separate Borrowings.
(c) Each Lender shall make each Loan to be made by it hereunder on
the proposed date thereof by wire transfer of immediately available funds to
such account in New York City as the Administrative Agent may designate not
later than 12:00 noon, New York City time, and the Administrative Agent shall
by 12:00 (noon), New York City time, credit the amounts so received to an
account with the Administrative Agent designated by the Borrower in the
applicable Borrowing Request, which account must be in the name of the
Borrower or, if a Borrowing shall not occur on such date because any condition
precedent herein specified shall not have been met, return the amounts so
received to the respective Lenders.
(d) Unless the Administrative Agent shall have received notice from
a Lender prior to the date of any Borrowing that such Lender will not make
available to the Administrative Agent such Lender's portion of such Borrowing,
the Administrative Agent may assume that such Lender has made such portion
available to the Administrative Agent on the date of such Borrowing in
accordance with paragraph (c) above and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If the Administrative Agent shall have so made funds
available then, to the extent that such Lender shall not have made such
portion available to the Administrative Agent, such Lender and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount
is repaid to the Administrative Agent at (i) in the case of the Borrower, the
interest rate applicable at the time to the Loans comprising such Borrowing
and (ii) in the case of such Lender, a rate determined by the Administrative
Agent to represent its cost of overnight or short-term funds (which
determination shall be conclusive absent manifest error). If such Lender
shall repay to the Administrative Agent such corresponding amount, such amount
shall constitute such Lender's Loan as part of such Borrowing for purposes of
this Agreement.
(e) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest Period
requested with respect thereto would end after the Revolving Credit Maturity
Date.
(f) If any Issuing Bank shall not have received from the Borrower
any payment required to be made to such Issuing Bank pursuant to Section
2.22(e) within the time specified in such Section, such Issuing Bank will
promptly notify the Administrative Agent and the Administrative Agent will
promptly notify each Revolving Credit Lender of the amount of the L/C
Disbursement which shall not have been reimbursed and its Pro Rata Percentage
thereof. Each Revolving Credit Lender shall pay by wire transfer of
immediately available funds to the Administrative Agent not later than 2:00
p.m., New York City time, on such date (or, if such Revolving Credit Lender
shall have received such notice later than 12:00 (noon), New York City time,
on any day, not later than 10:00 a.m., New York City time, on the immediately
following Business Day), an amount equal to such Lender's Pro Rata Percentage
of such L/C Disbursement (it being understood that such amount shall be deemed
to constitute an ABR Revolving Loan of such Lender and such payment shall be
deemed to have reduced the L/C Exposure), and the Administrative Agent will
promptly pay to such Issuing Bank amounts so received by it from the Revolving
Credit Lenders. The Administrative Agent will promptly pay to such Issuing
Bank any amounts received by it from the Borrower pursuant to Section 2.22(e)
prior to the time that any Revolving Credit Lender makes any payment pursuant
to this paragraph (f); any such amounts received by the Administrative Agent
thereafter will be promptly remitted by the Administrative Agent to the
Revolving Credit Lenders that shall have made such payments and to such
Issuing Bank, as their interests may appear. If any Revolving Credit Lender
shall not have made its Pro Rata Percentage of such L/C Disbursement available
to the Administrative Agent as provided above, such Lender and the Borrower
severally agree to pay interest on such amount, for each day from and
including the date such amount is required to be paid in accordance with this
paragraph to but excluding the date such amount is paid, to the Administrative
Agent at (i) in the case of the Borrower, a rate per annum equal to the
interest rate applicable to Revolving Loans pursuant to Section 2.06, and (ii)
in the case of such Lender, for the first such day, the Federal Funds
Effective Rate, and for each day thereafter, the Alternate Base Rate.
SECTION 2.03. Borrowing Procedure. In order to request a Borrowing
(other than a deemed Borrowing pursuant to Section 2.02(f), as to which this
Section 2.03 shall not apply), the Borrower shall hand deliver or telecopy to
the Administrative Agent a duly completed Borrowing Request (a) in the case of
a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before a proposed Borrowing, and (b) in the case of an ABR
Borrowing, not later than 11:00 a.m., New York City time, on the same day as
the proposed Borrowing. Each Borrowing Request shall be irrevocable, shall be
signed by or on behalf of the Borrower and shall specify the following
information: (i) whether the Borrowing then being requested is to be a Term
Borrowing or a Revolving Credit Borrowing, and whether such Borrowing is to be
a Eurodollar Borrowing or an ABR Borrowing; provided, however, that, unless
the Required Lenders otherwise agree, no Eurodollar Borrowing shall be
requested or made if a Default or Event of Default has occurred and is
continuing; (ii) the date of such Borrowing (which shall be a Business Day),
(iii) the number and location of the account to which funds are to be
disbursed (which shall be an account that complies with the requirements of
Section 2.02(c)); (iv) the amount of such Borrowing; and (v) if such Borrowing
is to be a Eurodollar Borrowing, the Interest Period with respect thereto;
provided, however, that, notwithstanding any contrary specification in any
Borrowing Request, each requested Borrowing shall comply with the requirements
set forth in Section 2.02. If no election as to the Type of Borrowing is
specified in any such notice, then the requested Borrowing shall be an ABR
Borrowing. If no Interest Period with respect to any Eurodollar Borrowing is
specified in any such notice, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration. The Administrative Agent
shall promptly advise the applicable Lenders of any notice given pursuant to
this Section 2.03 (and the contents thereof), and of each Lender's portion of
the requested Borrowing.
SECTION 2.04. Evidence of Debt; Repayment of Loans. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent
for the account of each Lender the principal amount of each Term Loan of such
Lender as provided in Section 2.11 and the then unpaid principal amount of
each Revolving Loan on the Revolving Credit Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable and paid such Lender
from time to time under this Agreement.
(c) The Administrative Agent shall maintain accounts in which it
will record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iii) the amount of any sum received by the
Administrative Agent hereunder from the Borrower and each Lender's share
thereof.
(d) The entries made in the accounts maintained pursuant to
paragraphs (b) and (c) above shall be prima facie evidence of the existence
and amounts of the obligations therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligations of the
Borrower to repay the Loans in accordance with their terms.
(e) Notwithstanding any other provision of this Agreement, in the
event any Lender shall request and receive a promissory note payable to such
Lender and its registered assigns, the interests represented by such note
shall at all times (including after any assignment of all or part of such
interests pursuant to Section 9.04) be represented by one or more promissory
notes payable to the payee named therein or its registered assigns.
SECTION 2.05. Fees. (a) The Borrower agrees to pay to each
Lender, through the Administrative Agent, on the date hereof, on the last day
of March, June, September and December in each year and on each date on which
any Commitment of such Lender shall expire or be terminated as provided
herein, a commitment fee (a "Commitment Fee") equal to the Applicable
Percentage per annum in effect from time to time on the average daily unused
amount of the Commitments of such Lender in effect during the preceding
quarter (or other period commencing with the date of effectiveness of the
Commitments of such Lender or ending with the Revolving Credit Maturity Date
or the date on which the Commitments of such Lender shall expire or be
terminated). All Commitment Fees shall be computed on the basis of the actual
number of days elapsed in a year of 360 days. The Commitments of each Lender
shall be deemed to have become effective on the date of acceptance by the
Borrower of a commitment of such Lender in respect of the credit facilities
established by this Agreement and shall cease to accrue on the date on which
the last of the Commitments of such Lender shall expire or be terminated as
provided herein.
(b) The Borrower agrees to pay (i) to each Revolving Credit Lender,
through the Administrative Agent, on the last day of March, June, September
and December of each year and on the date on which the Revolving Credit
Commitment of such Lender shall have been terminated as provided herein and no
Letters of Credit shall remain outstanding, a fee (an "L/C Participation Fee")
on such Lender's Pro Rata Percentage of the average daily aggregate L/C
Exposure (excluding the portion thereof attributable to unreimbursed L/C
Disbursements) during the preceding quarter (or shorter period commencing with
the date hereof or ending with the Revolving Credit Maturity Date or the date
on which no Letters of Credit shall remain outstanding and the Revolving
Credit Commitments shall have been terminated) at a rate equal to the
Applicable Percentage from time to time used to determine the interest rate on
Revolving Credit Borrowings comprised of Eurodollar Loans pursuant to Section
2.06, and (ii) to each Issuing Bank with respect to each Letter of Credit
issued by such Issuing Bank the fronting fees separately agreed upon by the
Borrower and such Issuing Bank and the standard issuance and drawing fees
specified from time to time by such Issuing Bank (the "Issuing Bank Fees").
All L/C Participation Fees and Issuing Bank Fees shall be computed on the
basis of the actual number of days elapsed in a year of 360 days.
(c) All Fees shall be paid on the dates due, in immediately
available funds, to the Administrative Agent for distribution, if and as
appropriate, among the Lenders, except that Issuing Bank Fees shall be paid
directly to the Issuing Bank entitled thereto. Once paid, none of the Fees
shall be refundable.
SECTION 2.06. Interest on Loans. (a) Subject to the provisions of
Section 2.07, the Loans comprising each ABR Borrowing shall bear interest
(computed on the basis of the actual number of days elapsed over a year of 365
or 366 days, as the case may be, when the Alternate Base Rate is determined by
reference to the Prime Rate and over a year of 360 days at all other times) at
a rate per annum equal to the Alternate Base Rate.
(b) Subject to the provisions of Section 2.07, the Loans comprising
each Eurodollar Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days) at a rate per annum
equal to the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Percentage in effect from time to time.
(c) Interest on each Loan shall be payable on the Interest Payment
Dates applicable to such Loan except as otherwise provided in this Agreement.
The applicable Alternate Base Rate or Adjusted LIBO Rate for each Interest
Period or day within an Interest Period, as the case may be, shall be
determined by the Administrative Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.07. Default Interest. If the Borrower shall default in
the payment of the principal of or interest on any Loan or any other amount
becoming due hereunder, by acceleration or otherwise, or under any other Loan
Document, the Borrower shall on demand from time to time pay interest, to the
extent permitted by law, on such defaulted amount to but excluding the date of
actual payment (after as well as before judgment) (a) in the case of overdue
principal prior to the end of the Interest Period applicable to any Loan, at
the rate otherwise applicable to such Loan pursuant to Section 2.06 plus 2.00
percent per annum and (b) in all other cases, at a rate per annum (computed on
the basis of the actual number of days elapsed over a year of 365 or 366 days,
as the case may be, when determined by reference to the Prime Rate and over a
year of 360 days at all other times) equal to the sum of the Alternate Base
Rate plus 2.00 percent.
SECTION 2.08. Alternate Rate of Interest. In the event, and on
each occasion, that on the day two Business Days prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Administrative Agent shall
have determined that dollar deposits in the principal amounts of the Loans
comprising such Borrowing are not generally available in the London interbank
market, or that the rates at which such dollar deposits are being offered will
not adequately and fairly reflect the cost to any Lender of making or
maintaining its Eurodollar Loan during such Interest Period, or that
reasonable means do not exist for ascertaining the Adjusted LIBO Rate, the
Administrative Agent shall, as soon as practicable thereafter, give written or
telecopy notice of such determination to the Borrower and the Lenders. In the
event of any such determination, until the Administrative Agent shall have
advised the Borrower and the Lenders that the circumstances giving rise to
such notice no longer exist, any request by the Borrower for a Eurodollar
Borrowing pursuant to Section 2.03 or 2.10 shall be deemed to be a request for
an ABR Borrowing. Each determination by the Administrative Agent hereunder
shall be conclusive absent manifest error.
SECTION 2.09. Termination and Reduction of Commitments. (a) The
Term Loan Commitments shall automatically terminate at 5:00 p.m., New York
City time, on the Closing Date. The Revolving Credit Commitments and the L/C
Commitment shall automatically terminate on the Revolving Credit Maturity
Date. Notwithstanding the foregoing, all the Commitments shall automatically
terminate at 5:00 p.m., New York City time, on September 29, 1995, if the
first Credit Event shall not have occurred by such time.
(b) Upon at least three Business Days' prior irrevocable written or
telecopy notice to the Administrative Agent, the Borrower may at any time in
whole permanently terminate, or from time to time in part permanently reduce,
the Revolving Credit Commitments; provided, however, that (i) each partial
reduction of the Revolving Credit Commitments shall be in an integral multiple
of $1,000,000 and in a minimum amount of $1,000,000 and (ii) the Total
Revolving Credit Commitment shall not be reduced to an amount that is less
than the Aggregate Revolving Credit Exposure at the time, unless Section
2.13(a) is complied with.
(c) Each reduction in the Revolving Credit Commitments hereunder
shall be made ratably among the Lenders in accordance with their respective
Revolving Credit Commitments. The Borrower shall pay to the Administrative
Agent for the account of the applicable Lenders, on the date of each
termination or reduction, the Commitment Fees on the amount of the Revolving
Credit Commitments so terminated or reduced accrued to but excluding the date
of such termination or reduction.
SECTION 2.10. Conversion and Continuation of Borrowings. The
Borrower shall have the right at any time upon prior irrevocable notice to the
Administrative Agent (a) not later than 11:00 a.m., New York City time, on the
date of conversion, to convert one or more Eurodollar Borrowings into an ABR
Borrowing, (b) not later than 11:00 a.m., New York City time, three Business
Days prior to conversion or continuation, to convert one or more ABR
Borrowings into Eurodollar Borrowings or to continue one or more Eurodollar
Borrowings as a Eurodollar Borrowing for an additional Interest Period, and
(c) not later than 11:00 a.m., New York City time, three Business Days prior
to conversion, to convert the Interest Period with respect to any Eurodollar
Borrowing to another permissible 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 Borrowing;
(ii) if less than all the outstanding principal amount of any
Borrowing shall be converted or continued, then each resulting Borrowing shall
satisfy the limitations specified in Sections 2.02(a) and 2.02(b) regarding
the principal amount and maximum number of Borrowings of the relevant Type;
(iii) each conversion shall be effected by each Lender and the
Administrative Agent by recording for the account of such Lender the new Loan
of such Lender resulting from such conversion and reducing the Loan or Loans
(or portion thereof) of such Lender being converted by an equivalent principal
amount; accrued interest on any Eurodollar Loan (or portion thereof) being
converted shall be paid by the Borrower at the time of conversion;
(iv) if any Eurodollar Borrowing is converted at a time other than
the end of the Interest Period applicable thereto, the Borrower shall pay,
upon demand, any amounts due to the Lenders pursuant to Section 2.16;
(v) any portion of a Borrowing maturing or required to be repaid in
less than one month may not be converted into or continued as a Eurodollar
Borrowing;
(vi) any portion of a Eurodollar Borrowing that cannot be converted
into or continued as a Eurodollar Borrowing by reason of the immediately
preceding clause shall be automatically converted at the end of the Interest
Period in effect for such Borrowing into an ABR Borrowing;
(vii) no Interest Period may be selected for any Eurodollar Term
Borrowing that would end later than a Term Loan Repayment Date occurring on or
after the first day of such Interest Period if, after giving effect to such
selection, the aggregate outstanding amount of (A) the Eurodollar Term
Borrowings with Interest Periods ending on or prior to such Term Loan
Repayment Date and (B) the ABR Term Borrowings would not be at least equal to
the principal amount of Term Borrowings to be paid on such Term Loan Repayment
Date; and
(viii) no Borrowing may be converted to or continued as a Eurodollar
Borrowing (A) unless the Required Lenders otherwise consent, if an Event of
Default shall have occurred and be continuing or (B) if a Default shall have
occurred and be continuing and the Required Lenders shall have determined that
such conversion or continuation is not appropriate.
Each notice pursuant to this Section 2.10 shall be irrevocable and
shall refer to this Agreement and specify (i) the identity and amount of the
Borrowing or Borrowings that the Borrower requests be converted or continued,
(ii) whether such Borrowing or Borrowings are to be converted to or continued
as a Eurodollar Borrowing or an ABR Borrowing, (iii) if such notice requests a
conversion, the date of such conversion (which shall be a Business Day) and
(iv) if such Borrowing or Borrowings are to be converted to or continued as a
Eurodollar Borrowing, 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 Eurodollar Borrowing, the Borrower shall be deemed to
have selected an Interest Period of one month's duration. The Administrative
Agent shall advise the Lenders of any notice given pursuant to this Section
2.10 and of each Lender's portion of any converted or continued Borrowing. If
the Borrower shall not have given notice in accordance with this Section 2.10
to continue any Borrowing into a subsequent Interest Period (and shall not
otherwise have given notice in accordance with this Section 2.10 to convert
such Borrowing), such Borrowing shall, at the end of the Interest Period
applicable thereto (unless repaid pursuant to the terms hereof), automatically
be continued into a new Interest Period as an ABR Borrowing.
SECTION 2.11. Repayment of Term Borrowings. (a) (i) The Borrower
shall repay the Term Borrowings in 20 consecutive installments payable on the
dates (each such date being a "Term Loan Repayment Date"), and in the amounts
(each such amount, as adjusted from time to time pursuant to Sections 2.12 and
2.13(d), being a "Term Loan Repayment Amount") set forth below:
<TABLE>
<CAPTION>
Date Amount
- - - - --------- ------------
<S> <C>
12/31/1995 $1,100,000
3/31/1996 $1,100,000
6/30/1996 $1,100,000
9/30/1996 $1,100,000
2/31/1996 $1,100,000
3/31/1997 $1,100,000
6/30/1997 $1,100,000
9/30/1997 $1,100,000
12/31/1997 $1,100,000
3/31/1998 $1,100,000
6/30/1998 $1,100,000
9/30/1998 $1,100,000
12/31/1998 $1,100,000
3/31/1999 $1,100,000
6/30/1999 $1,100,000
9/30/1999 $1,100,000
12/31/1999 $1,100,000
3/31/2000 $1,100,000
6/30/2000 $1,100,000
9/30/2000 $1,100,000
</TABLE>
(b) To the extent not previously paid, all Term Loans shall be due
and payable on the Term Loan Maturity Date, together with accrued and unpaid
interest on the principal amount to be paid to but excluding the date of
payment.
(c) All repayments of Eurodollar Borrowings pursuant to this
Section 2.11 shall be accompanied by accrued and unpaid interest thereon to
but excluding the date of such repayment. All repayments pursuant to this
Section 2.11 shall be subject to Section 2.16, but shall otherwise be without
premium or penalty.
SECTION 2.12. Optional Prepayments. (a) The Borrower shall have
the right at any time and from time to time to prepay any Borrowing, in whole
or in part, (i) in the case of a Eurodollar Borrowing, upon at least three
Business Days' prior written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Administrative Agent given
before 11:00 a.m., New York City time and (ii) in the case of an ABR
Borrowing, by written or telecopy notice (or telephone notice promptly
confirmed by written or telecopy notice) to the Administrative Agent given
before 11:00 a.m., New York City time, on the date of repayment; provided,
however, that each partial prepayment shall be in an amount that is an
integral multiple of $1,000,000.
(b) Optional prepayments of Term Loans shall be applied pro rata
against the remaining scheduled installments of principal due in respect of
the Term Loans under Section 2.11(a).
(c) Each notice of prepayment shall specify the prepayment date and
the principal amount of each Borrowing (or portion thereof) to be prepaid,
shall be irrevocable and shall commit the Borrower to prepay such Borrowing by
the amount stated therein on the date stated therein. All prepayments under
this Section 2.12 shall be subject to Section 2.16 but otherwise without
premium or penalty. All prepayments of Eurodollar Borrowings under this
Section 2.12 shall be accompanied by accrued and unpaid interest on the
principal amount being prepaid to but excluding the date of payment.
SECTION 2.13. Mandatory Prepayments. (a) In the event of any
termination of all the Revolving Credit Commitments, the Borrower shall repay
or prepay all its outstanding Revolving Credit Borrowings on the date of such
termination and cash collateralize the entire L/C Exposure pursuant to section
2.22(j). In the event of any reduction of the Revolving Credit Commitments,
then (i) at or prior to the effective date of such reduction, the
Administrative Agent shall notify the Borrower and the Revolving Credit
Lenders of the Aggregate Revolving Credit Exposure after giving effect thereto
and (ii) if the Aggregate Revolving Credit Exposure would exceed the Total
Revolving Credit Commitment after giving effect to such reduction, then the
Borrower shall, on the date of such reduction, repay or prepay Revolving
Credit Borrowings in an amount sufficient to eliminate such excess, and if,
after giving effect to such payment or prepayment, the aggregate L/C Exposure
of all the Lenders would exceed the Total Revolving Credit Commitment, the
Borrower shall, on such date, cash collateralize, pursuant to Section 2.22(j),
such excess aggregate L/C Exposure or cause the termination of outstanding
Letters of Credit in an amount sufficient to eliminate such excess.
(b) Promptly upon receipt of Net Proceeds by the Borrower or any of
its subsidiaries, prior to the closing of the Connector Purchase, or Oak or
any of its subsidiaries, subsequent to the closing of the Connector Purchase,
the Borrower shall prepay outstanding Term Loans in accordance with Section
2.13(d) in an aggregate principal amount equal to the amount of such Net
Proceeds.
(c) No later than the earlier of (i) 90 days after the end of each
fiscal year of the Borrower, commencing with the fiscal year ending on
December 31, 1996, and (ii) the date on which the financial statements with
respect to such fiscal year are delivered pursuant to Section 5.04(a), the
Borrower shall prepay outstanding Term Loans in accordance with Section
2.13(d) in an aggregate principal amount equal to 50 percent of Excess Cash
Flow for such fiscal year, unless the Designated Financial Tests shall have,
for a period of at least one complete fiscal quarter, been satisfied.
(d) Mandatory prepayments of outstanding Term Loans under this
Agreement shall be applied pro rata against the remaining scheduled
installments of principal due in respect of Term Loans under Section 2.11(a).
Notwith-standing anything in this Agreement to the contrary, subsequent to the
closing of the Connector Purchase, all prepayments under this Section 2.13
shall be allocated pro rata among the then outstanding Term Loans and term
loans made under the Oak Credit Agreement.
(e) The Borrower shall deliver to the Administrative Agent, at the
time of each prepayment required under this Section 2.13, (i) a certificate
signed by a Financial Officer of the Borrower setting forth in reasonable
detail the calculation of the amount of such prepayment and (ii) to the extent
practicable, at least three days prior written notice of such prepayment.
Each notice of prepayment shall specify the prepayment date, the Type of each
Loan being prepaid and the principal amount of each Loan (or portion thereof)
to be prepaid. All prepayments of Eurodollar Borrowings under this Section
2.13 shall be accompanied by accrued and unpaid interest to but excluding the
date of payment. All prepayments of Borrowings under this Section 2.13 shall
be subject to Section 2.16, but shall otherwise be without premium or penalty.
(f) Amounts to be applied pursuant to this Section 2.13 to the
prepayment of Term Loans and Revolving Loans shall be applied, as applicable,
first to reduce outstanding ABR Term Loans and ABR Revolving Loans. Any
amounts remaining after each such application shall, at the option of the
Borrower, be applied to prepay Eurodollar Term Loans or Eurodollar Revolving
Loans, as the case may be, immediately and/or shall be deposited in the
Prepayment Account (as defined below). The Administrative Agent shall apply
any cash deposited in the Prepayment Account (i) allocable to Term Loans to
prepay Eurodollar Term Loans and (ii) allocable to Revolving Loans to prepay
Eurodollar Revolving Loans, in each case on the last day of their respective
Interest Periods (or, at the direction of the Borrower, on any earlier date)
until all outstanding Term Loans or Revolving Loans, as the case may be, have
been prepaid or until all the allocable cash on deposit with respect to such
Loans has been exhausted. For purposes of this Agreement, the term
"Prepayment Account" shall mean an account established by the Borrower with
the Administrative Agent and over which the Administrative Agent shall have
exclusive dominion and control, including the exclusive right of withdrawal
for application in accordance with this paragraph (h). The Administrative
Agent will, at the request of the Borrower, invest amounts on deposit in the
Prepayment Account in Permitted Investments that mature prior to the last day
of the applicable Interest Periods of the Eurodollar Term Borrowings or
Eurodollar Revolving Borrowings to be prepaid, as the case may be; provided,
however, that (i) the Administrative Agent shall not be required to make any
investment that, in its sole judgment, would require or cause the
Administrative Agent to be in, or would result in any, violation of any law,
statute, rule or regulation and (ii) the Administrative Agent shall have no
obligation to invest amounts on deposit in the Prepayment Account if a Default
or Event of Default shall have occurred and be continuing. The Borrower shall
indemnify the Administrative Agent for any losses relating to the investments
so that the amount available to prepay Eurodollar Borrowings on the last day
of the applicable Interest Period is not less than the amount that would have
been available had no investments been made pursuant thereto. Other than any
interest earned on such investments, the Prepayment Account shall not bear
interest. Interest or profits, if any, on such investments shall be deposited
in the Prepayment Account and reinvested and disbursed as specified above. If
the maturity of the Loans has been accelerated pursuant to Article VII, the
Administrative Agent may, in its sole discretion, apply all amounts on deposit
in the Prepayment Account to satisfy any of the Obligations. The Borrower
hereby grants to the Administrative Agent, for its benefit and the benefit of
the Issuing Banks and the Lenders, a security interest in the Prepayment
Account to secure the Obligations.
SECTION 2.14. Reserve Requirements; Change in Circumstances. (a)
Notwithstanding any other provision of this Agreement, if after the date of
this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall change the basis of taxation of payments to any Lender or
any Issuing Bank of the principal of or interest on any Eurodollar Loan made
by such Lender or any Fees or other amounts payable hereunder (other than
changes in respect of taxes imposed on the overall net income of such Lender
or such Issuing Bank by the jurisdiction in which such Lender or such Issuing
Bank has its principal office or by any political subdivision or taxing
authority therein), or shall impose, modify or deem applicable any reserve,
special deposit or similar requirement against assets of, deposits with or for
the account of or credit extended by any Lender or any Issuing Bank (except
any such reserve requirement which is reflected in the Adjusted LIBO Rate) or
shall impose on such Lender or such Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans made
by such Lender or any Letter of Credit or participation therein, and the
result of any of the foregoing shall be to increase the cost to such Lender or
such Issuing Bank of making or maintaining any Eurodollar Loan or increase the
cost to any Lender or such Issuing Bank of issuing or maintaining any Letter
of Credit or purchasing or maintaining a participation therein or to reduce
the amount of any sum received or receivable by such Lender or such Issuing
Bank hereunder (whether of principal, interest or otherwise) by an amount
deemed by such Lender or such Issuing Bank to be material, then the Borrower
will pay to such Lender or such Issuing Bank, as the case may be, upon demand
such additional amount or amounts as will compensate such Lender or such
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.
(b) If any Lender or any Issuing Bank shall have determined that
the adoption after the date hereof of any law, rule, regulation, agreement or
guideline regarding capital adequacy, or any change after the date hereof in
any such law, rule, regulation, agreement or guideline (whether such law,
rule, regulation, agreement or guideline has been adopted) or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof, or compliance by any Lender
(or any lending office of such Lender) or any Issuing Bank or any Lender's or
any Issuing Bank's holding company with any request or directive regarding
capital adequacy (whether or not having the force of law) of any Governmental
Authority has or would have the effect of reducing the rate of return on such
Lender's or such Issuing Bank's capital or on the capital of such Lender's or
such Issuing Bank's holding company, if any, as a consequence of this
Agreement or the Loans made or participations in Letters of Credit purchased
by such Lender pursuant hereto or the Letters of Credit issued by such Issuing
Bank pursuant hereto to a level below that which such Lender or such Issuing
Bank or such Lender's or such Issuing Bank's holding company could have
achieved but for such applicability, adoption, change or compliance (taking
into consideration such Lender's or such Issuing Bank's policies and the
policies of such Lender's or such Issuing Bank's holding company with respect
to capital adequacy) by an amount deemed by such Lender or such Issuing Bank
to be material, then from time to time the Borrower shall pay to such Lender
or such Issuing Bank, as the case may be, such additional amount or amounts as
will compensate such Lender or such Issuing Bank or such Lender's or the
Issuing Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or any Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or such Issuing Bank or
its holding company, as applicable, as specified in paragraph (a) or (b) above
shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender or such Issuing Bank the amount
shown as due on any such certificate delivered by it within 10 days after its
receipt of the same.
(d) Failure or delay on the part of any Lender or any Issuing Bank
to demand compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital shall not constitute
a waiver of such Lender's or such Issuing Bank's right to demand such
compensation; provided, however, that any Lender or any Issuing Bank may not
demand compensation under this Section 2.14 for any period commencing earlier
than 180 days prior to such demand. The protection of this Section 2.14 shall
be available to each Lender and each Issuing Bank regardless of any possible
contention of the invalidity or inapplicability of the law, rule, regulation,
agreement, guideline or other change or condition that shall have occurred or
been imposed.
SECTION 2.15. Change in Legality. (a) Notwithstanding any other
provision of this Agreement, if, after the date hereof, any change in any law
or regulation or in the interpretation thereof by any Governmental Authority
charged with the administration or interpretation thereof shall make it
unlawful for any Lender to make or maintain any Eurodollar Loan or to give
effect to its obligations as contemplated hereby with respect to any
Eurodollar Loan, then, by written notice to the Borrower and to the
Administrative Agent:
(i) such Lender may declare that Eurodollar Loans will not
thereafter (for the duration of such unlawfulness) be made by such Lender
hereunder (or be continued for additional Interest Periods and ABR Loans will
not thereafter (for such duration) be converted into Eurodollar Loans),
whereupon any request for a Eurodollar Borrowing (or to convert an ABR
Borrowing to a Eurodollar Borrowing or to continue a Eurodollar Borrowing for
an additional Interest Period) shall, as to such Lender only, be deemed a
request for an ABR Loan (or a request to continue an ABR Loan as such for an
additional Interest Period or to convert a Eurodollar Loan into an ABR Loan,
as the case may be), unless such declaration shall be subsequently withdrawn;
and
(ii) such Lender may require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below.
In the event any Lender shall exercise its rights under (i) or (ii) above, all
payments and prepayments of principal that would otherwise have been applied
to repay the Eurodollar Loans that would have been made by such Lender or the
converted Eurodollar Loans of such Lender shall instead be applied to repay
the ABR Loans made by such Lender in lieu of, or resulting from the conversion
of, such Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the Borrower by
any Lender shall be effective as to each Eurodollar Loan made by such Lender,
if lawful, on the last day of the Interest Period currently applicable to such
Eurodollar Loan; in all other cases such notice shall be effective on the date
of receipt by the Borrower.
SECTION 2.16. Indemnity. The Borrower shall indemnify each Lender
against any loss or expense that such Lender may sustain or incur as a
consequence of any event, other than a default by such Lender in the
performance of its obligations hereunder, which results in (a) such Lender
receiving or being deemed to receive any amount on account of the principal of
any Eurodollar Loan prior to the end of the Interest Period in effect
therefor, (b) the conversion of any Eurodollar Loan to an ABR Loan, or the
conversion of the Interest Period with respect to any Eurodollar Loan, in each
case other than on the last day of the Interest Period in effect therefor, or
(c) any Eurodollar Loan to be made by such Lender (including any Eurodollar
Loan to be made pursuant to a conversion or continuation under Section 2.10)
not being made after notice of such Loan shall have been given by the Borrower
hereunder (any of the events referred to in this sentence being called a
"Breakage Event"). Such loss shall include an amount equal to the excess, as
reasonably determined by such Lender, of (i) its cost of obtaining funds for
the Eurodollar Loan that is the subject of such Breakage Event for the period
from the date of such Breakage Event to the last day of the Interest Period in
effect (or that would have been in effect) for such Loan over (ii) the amount
of interest likely to be realized by such Lender in redeploying the funds
released or not utilized by reason of such Breakage Event for such period. A
certificate of any Lender setting forth any amount or amounts which such
Lender is entitled to receive pursuant to this Section 2.16 shall be delivered
to the Borrower and shall be conclusive absent manifest error.
SECTION 2.17. Pro Rata Treatment. Except as required under Section
2.14, 2.15 or 2.16 each Borrowing, each payment or prepayment of principal of
any Borrowing, each payment of interest on the Loans, each payment of the
Commitment Fees, each reduction of the Revolving Credit Commitments and each
refinancing of any Borrowing with, conversion of any Borrowing to or
continuation of any Borrowing as a Borrowing of any Type shall be allocated
pro rata among the Lenders in accordance with their respective applicable
Commitments (or, if such Commitments shall have expired or been terminated, in
accordance with the respective principal amounts of their outstanding Loans).
Each Lender agrees that in computing such Lender's portion of any Borrowing to
be made hereunder, the Administrative Agent may, in its discretion, round each
Lender's percentage of such Borrowing to the next higher or lower whole dollar
amount.
SECTION 2.18. Sharing of Setoffs. Each Lender agrees that if it
shall, through the exercise of a right of banker's lien, setoff or
counterclaim against the Borrower, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, obtain payment (voluntary or involuntary) in
respect of any Loan or Loans or L/C Disbursement as a result of which the
unpaid principal portion of its Term Loans and Revolving Loans and
participations in L/C Disbursements shall be proportionately less than the
unpaid principal portion of the Term Loans and Revolving Loans and
participations in L/C Disbursements of any other Lender, it shall be deemed
simultaneously to have purchased from such other Lender at face value, and
shall promptly pay to such other Lender the purchase price for, a
participation in the Term Loans and Revolving Loans and L/C Exposure, as the
case may be of such other Lender, so that the aggregate unpaid principal
amount of the Term Loans and Revolving Loans and L/C Exposure and
participations in Term Loans and Revolving Loans and L/C Exposure held by each
Lender shall be in the same proportion to the aggregate unpaid principal
amount of all Term Loans and Revolving Loans and L/C Exposure then outstanding
as the principal amount of its Term Loans and Revolving Loans and L/C Exposure
prior to such exercise of banker's lien, setoff or counterclaim or other event
was to the principal amount of all Term Loans and Revolving Loans and L/C
Exposure outstanding prior to such exercise of banker's lien, setoff or
counterclaim or other event; provided, however, that if any such purchase or
purchases or adjustments shall be made pursuant to this Section and the
payment giving rise thereto shall thereafter be recovered, such purchase or
purchases or adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustment restored without interest. The
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in a Term Loan or Revolving Loan or L/C
Disbursement deemed to have been so purchased may exercise any and all rights
of banker's lien, setoff or counterclaim with respect to any and all moneys
owing by the Borrower to such Lender by reason thereof as fully as if such
Lender had made a Loan directly to the Borrower in the amount of such
participation.
SECTION 2.19. Payments. (a) The Borrower shall make each payment
(including principal of or interest on any Borrowing or any L/C Disbursement
or any Fees or other amounts) hereunder and under any other Loan Document not
later than 12:00 (noon), New York City time, on the date when due in
immediately available dollars, without setoff, defense or counterclaim. Each
such payment (other than Issuing Bank Fees, which shall be paid directly to
the Issuing Bank entitled thereto) shall be made to the Administrative Agent
at its offices at 270 Park Avenue, New York, New York.
(b) Whenever any payment (including principal of or interest on any
Borrowing or any Fees or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business Day, such payment may be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the computation
of interest or Fees, if applicable.
SECTION 2.20. Taxes. (a) Any and all payments by the Borrower
hereunder and under any other Loan Document shall be made, in accordance with
Section 2.19, free and clear of and without deduction for any and all current
or future taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding (i) income taxes imposed on the
net income of the Administrative Agent, any Lender or any Issuing Bank (or any
transferee or assignee thereof, including a participation holder (any such
entity a "Transferee")) and (ii) franchise taxes imposed on the net income of
the Administrative Agent, any Lender or any Issuing Bank (or Transferee), in
each case by the jurisdiction under the laws of which the Administrative
Agent, such Lender or such Issuing Bank (or Transferee) is organized or any
political subdivision thereof (all such nonexcluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities, collectively or
individually, being called "Taxes"). If the Borrower shall be required to
deduct any Taxes from or in respect of any sum payable hereunder or under any
other Loan Document to the Administrative Agent, any Lender or any Issuing
Bank (or any Transferee), (i) the sum payable shall be increased by the amount
(an "additional amount") necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.20) the Administrative Agent, such Lender or such Issuing Bank
(or Transferee), as the case may be, shall receive an amount equal to the sum
it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In addition, the Borrower agrees to pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies that arise from any payment made hereunder or under any other
Loan Document or from the execution, delivery or registration of, or otherwise
with respect to, this Agreement or any other Loan Document ("Other Taxes").
(c) The Borrower will indemnify the Administrative Agent, each
Lender and each Issuing Bank (or Transferee) for the full amount of Taxes and
Other Taxes paid by the Administrative Agent, such Lender or such Issuing Bank
(or Transferee), as the case may be, and any liability (including penalties,
interest and expenses (including reasonable attorney's fees and expenses),
other than penalties, interest or expenses arising out of the gross negligence
of such person), net of any related payments under paragraph (a) or (b) above,
arising therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
prepared by the Administrative Agent, a Lender or an Issuing Bank (or
Transferee), or the Administrative Agent on its behalf, absent manifest error,
shall be final, conclusive and binding for all purposes. Such indemnification
shall be made within 30 days after the date the Administrative Agent, any
Lender or any Issuing Bank (or Transferee), as the case may be, makes written
demand therefor.
(d) If the Administrative Agent, any Lender or any Issuing Bank (or
Transferee) receives a refund in respect of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section 2.20, it shall
within 30 days from the date of such receipt pay over such refund to the
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 2.20 with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent, such Lender or such Issuing Bank (or
Transferee) and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund); provided, however, that
the Borrower, upon the request of the Administrative Agent, such Lender or
such Issuing Bank (or Transferee), shall repay the amount paid over to the
Borrower (plus penalties, interest or other charges) to the Administrative
Agent, such Lender or such Issuing Bank (or Transferee) in the event the
Administrative Agent, such Lender or such Issuing Bank (or Transferee) is
required to repay such refund to such Governmental Authority.
(e) As soon as practicable after the date of any payment of Taxes
or Other Taxes by the Borrower to the relevant Governmental Authority, the
Borrower will deliver to the Administrative Agent, at its address referred to
in Section 9.01, the original or a certified copy of a receipt issued by such
Governmental Authority evidencing payment thereof.
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section
2.20 shall survive the payment in full of the principal of and interest on all
Loans made hereunder, the expiration or cancellation of all Letters of Credit
and the reimbursement of all draws thereunder.
(g) Each Lender (or Transferee) that is organized under the laws of
a jurisdiction other than the United States, any State thereof or the District
of Columbia (a "Non-U.S. Lender") shall deliver to the Borrower and the
Administrative Agent two copies of either United States Internal Revenue
Service Form 1001 or Form 4224, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest", a Form W-8, or any
subsequent versions thereof or successors thereto (and, if such Non-U.S.
Lender delivers a Form W-8, a certificate representing that such Non-U.S.
Lender is not a bank for purposes of Section 881(c) of the Code, is not a 10-
percent shareholder (within the meaning of Section 871(h)(3)(B) of the Code)
of the Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Code)), properly
completed and duly executed by such Non-U.S. Lender claiming complete
exemption from, or reduced rate of, U.S. Federal withholding tax on payments
by the Borrower under this Agreement and the other Loan Documents. Such forms
shall be delivered by each Non-U.S. Lender on or before the date it becomes a
party to this Agreement (or, in the case of a Transferee that is a
participation holder, on or before the date such participation holder becomes
a Transferee hereunder) and on or before the date, if any, such Non-U.S.
Lender changes its applicable lending office by designating a different
lending office (a "New Lending Office"). In addition, each Non-U.S. Lender
shall deliver such forms promptly upon the obsolescence or invalidity of any
form previously delivered by such Non-U.S. Lender. Notwithstanding any other
provision of this Section 2.20(g), a Non-U.S. Lender shall not be required to
deliver any form pursuant to this Section 2.20(g) that such Non-U.S. Lender
is not legally able to deliver.
(h) The Borrower shall not be required to indemnify any Non-U.S.
Lender or to pay any additional amounts to any Non-U.S. Lender, in respect of
United States Federal withholding tax pursuant to paragraph (a) or (c) above
to the extent that (i) the obligation to withhold amounts with respect to
United States Federal withholding tax existed on the date such Non-U.S. Lender
became a party to this Agreement (or, in the case of a Transferee that is a
participation holder, on the date such participation holder became a
Transferee hereunder) or, with respect to payments to a New Lending Office,
the date such Non-U.S. Lender designated such New Lending Office with respect
to a Loan; provided, however, that this paragraph (h) shall not apply (x) to
any Transferee or New Lending Office that becomes a Transferee or New Lending
Office as a result of an assignment, participation, transfer or designation
made at the request of the Borrower and (y) to the extent the indemnity
payment or additional amounts any Transferee, or any Lender (or Transferee),
acting through a New Lending Office, would be entitled to receive (without
regard to this paragraph (h)) do not exceed the indemnity payment or
additional amounts that the person making the assignment, participation or
transfer to such Transferee, or Lender (or Transferee) making the designation
of such New Lending Office, would have been entitled to receive in the absence
of such assignment, participation, transfer or designation or (ii) the
obligation to pay such additional amounts would not have arisen but for a
failure by such Non-U.S. Lender to comply with the provisions of paragraph (g)
above.
(i) Nothing contained in this Section 2.20 shall require any Lender
or any Issuing Bank (or any Transferee) or the Administrative Agent to make
available any of its tax returns (or any other information that it deems to be
confidential or proprietary).
SECTION 2.21. Assignment of Commitments Under Certain
Circumstances; Duty to Mitigate. (a) In the event (i) any Lender or any
Issuing Bank delivers a certificate requesting compensation pursuant to
Section 2.14, (ii) any Lender or any Issuing Bank delivers a notice described
in Section 2.15 or (iii) the Borrower is required to pay any additional amount
to any Lender or any Issuing Bank or any Governmental Authority on account of
any Lender or any Issuing Bank pursuant to Section 2.20, the Borrower may, at
its sole expense and effort, upon notice to such Lender or such Issuing Bank
and the Administrative Agent, require such Lender or such Issuing Bank to
transfer and assign, without recourse (in accordance with and subject to the
restrictions contained in Section 9.04), all of its interests, rights and
obligations under this Agreement to an assignee that shall assume such
assigned obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided, however, that (x) such assignment shall
not conflict with any law, rule or regulation or order of any court or other
Governmental Authority having jurisdiction, (y) the Borrower shall have
received the prior written consent of the Administrative Agent (and, if a
Revolving Credit Commitment is being assigned, of each Issuing Bank), which
consent shall not unreasonably be withheld, and (z) the Borrower or such
assignee shall have paid to the affected Lender or Issuing Bank in immediately
available funds an amount equal to the sum of the principal of and interest
accrued to the date of such payment on the outstanding Loans and
participations in L/C Disbursements of such Lender or such Issuing Bank plus
all Fees and other amounts accrued for the account of such Lender or such
Issuing Bank hereunder (including any amounts under Sections 2.14, 2.15 and
2.16); provided further that, if prior to any such transfer and assignment the
circumstances or event that resulted in such Lender's or such Issuing Bank's
claim for compensation under Section 2.14 or notice under Section 2.15 or the
amounts paid pursuant to Section 2.20, as the case may be, cease to cause such
Lender or such Issuing Bank to suffer increased costs or reductions in amounts
received or receivable or reduction in return on capital, or cease to have the
consequences specified in Section 2.15, or cease to result in amounts being
payable under Section 2.20, as the case may be (including as a result of any
action taken by such Lender or such Issuing Bank pursuant to paragraph (b)
below), or if such Lender or such Issuing Bank shall waive its right to claim
further compensation under Section 2.14 in respect of such circumstances or
event or shall withdraw its notice under Section 2.15 or shall waive its right
to further payments under Section 2.20 in respect of such circumstances or
event, as the case may be, then such Lender or such Issuing Bank shall not
thereafter be required to make any such transfer and assignment hereunder.
(b) If (i) any Lender or the Issuing Bank shall request
compensation under Section 2.14, (ii) any Lender or any Issuing Bank delivers
a notice described in Section 2.15 or (iii) the Borrower is required to pay
any additional amount to any Lender or any Issuing Bank or any Governmental
Authority on account of any Lender or any Issuing Bank, pursuant to Section
2.20 (including as a result of any exercise by a Lender of its option
described in Section 2.02(b)), then such Lender or such Issuing Bank shall use
reasonable efforts (which shall not require such Lender or such Issuing Bank
to incur an unreimbursed loss or unreimbursed cost or expense or otherwise
take any action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden deemed by it to be
significant) (x) to file any certificate or document reasonably requested in
writing by the Borrower or (y) to assign its rights and delegate and transfer
its obligations hereunder to another of its offices, branches or affiliates,
if such filing or assignment would reduce its claims for compensation under
Section 2.14 or enable it to withdraw its notice pursuant to Section 2.15 or
would reduce amounts payable pursuant to Section 2.20, as the case may be, in
the future. The Borrower hereby agrees to pay all reasonable costs and
expenses incurred by any Lender or any Issuing Bank in connection with any
such filing or assignment, delegation and transfer.
SECTION 2.22. Letters of Credit. (a) General. The Borrower may
request any Issuing Bank to issue a Letter of Credit, in a form reasonably
acceptable to the Administrative Agent and such Issuing Bank, appropriately
completed, for the account of the Borrower, at any time and from time to time
while the Revolving Credit Commitments remain in effect. This Section 2.22
shall not be construed to impose an obligation upon any Issuing Bank to issue
any Letter of Credit that is inconsistent with the terms and conditions of
this Agreement.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. In order to request the issuance of a Letter of Credit (or to
amend, renew or extend an existing Letter of Credit), the Borrower shall hand
deliver or telecopy to the applicable Issuing Bank and the Administrative
Agent (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit,
or identifying the Letter of Credit to be amended, renewed or extended, the
date of issuance, amendment, renewal or extension, the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) below),
the amount of such Letter of Credit, the name and address of the beneficiary
thereof and such other information as shall be necessary to prepare such
Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if, and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that,
after giving effect to such issuance, amendment, renewal or extension (A) the
L/C Exposure shall not exceed $5,000,000 and (B) the Aggregate Revolving
Credit Exposure shall not exceed the Total Revolving Credit Commitment.
(c) Expiration Date. Each Letter of Credit shall expire at the
close of business on the earlier of the date one year after the date of the
issuance of such Letter of Credit and the date that is five Business Days
prior to the Revolving Credit Maturity Date, unless such Letter of Credit
expires by its terms on an earlier date.
(d) Participations. By the issuance of a Letter of Credit and
without any further action on the part of the applicable Issuing Bank or the
Lenders, such Issuing Bank hereby grants to each Lender, and each such Lender
hereby acquires from such Issuing Bank, a participation in such Letter of
Credit equal to such Lender's Pro Rata Percentage of the aggregate amount
available to be drawn under such Letter of Credit, effective upon the issuance
of such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of any Issuing Bank, such Lender's
Pro Rata Percentage of each L/C Disbursement made by such Issuing Bank and not
reimbursed by the Borrower (or, if applicable, another party pursuant to its
obligations under any other Loan Document) forthwith on the date due as
provided in Section 2.02(f). Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including the occurrence and continuance of a
Default or an Event of Default, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If any Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, the Borrower shall pay to the
Administrative Agent an amount equal to such L/C Disbursement not later than
two hours after the Borrower shall have received notice from the Issuing Bank
that payment of such draft will be made, or, if the Borrower shall have
received such notice later than 10:00 a.m., New York City time, on any
Business Day, not later than 10:00 a.m., New York City time, on the
immediately following Business Day.
(f) Obligations Absolute. The Borrower's obligations to reimburse
L/C Disbursements as provided in paragraph (e) above shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement, under any and all circumstances whatsoever,
and irrespective of:
(i) any lack of validity or enforceability of any Letter of Credit
or any Loan Document, or any term or provision therein;
(ii) any amendment or waiver of or any consent to departure from all
or any of the provisions of any Letter of Credit or any Loan Document;
(iii) the existence of any claim, setoff, defense or other right that
the Borrower, any other party guaranteeing, or otherwise obligated with, the
Borrower, any Subsidiary or other Affiliate thereof or any other person may at
any time have against the beneficiary under any Letter of Credit, the
applicable Issuing Bank, the Administrative Agent or any Lender or any other
person, whether in connection with this Agreement, any other Loan Document or
any other related or unrelated agreement or transaction;
(iv) any draft or other document presented under a Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any respect;
(v) payment by the applicable Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply with
the terms of such Letter of Credit; and
(vi) any other act or omission to act or delay of any kind of the
applicable Issuing Bank, the Lenders, the Administrative Agent or any other
person or any other event or circumstance whatsoever, whether or not similar
to any of the foregoing, that might, but for the provisions of this Section
2.22, constitute a legal or equitable discharge of the Borrower's obligations
hereunder.
Without limiting the generality of the foregoing, it is expressly
understood and agreed that the absolute and unconditional obligation of the
Borrower hereunder to reimburse L/C Disbursements will not be excused by the
gross negligence or wilful misconduct of the applicable Issuing Bank.
However, the foregoing shall not be construed to excuse any Issuing Bank from
liability to the Borrower to the extent of any direct damages (as opposed to
consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by such Issuing Bank's gross negligence or wilful misconduct
or failure to examine drafts and other documents presented under a Letter of
Credit to determine whether such drafts and other documents presented under a
Letter of Credit comply with the terms thereof; it is understood that any
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary and, in making any payment under any Letter of
Credit (i) any Issuing Bank's exclusive reliance on the documents presented to
it under such Letter of Credit as to any and all matters set forth therein,
including reliance on the amount of any draft presented under such Letter of
Credit, whether or not the amount due to the beneficiary thereunder equals the
amount of such draft and whether or not any document presented pursuant to
such Letter of Credit proves to be insufficient in any respect, if such
document on its face appears to be in order, and whether or not any other
statement or any other document presented pursuant to such Letter of Credit
proves to be forged or invalid or any statement therein proves to be
inaccurate or untrue in any respect whatsoever and (ii) any noncompliance in
any immaterial respect of the documents presented under such Letter of Credit
with the terms thereof shall, in each case, be deemed not to constitute wilful
misconduct or gross negligence of the applicable Issuing Bank.
(g) Disbursement Procedures. Each Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit issued by such Issuing Bank. Each
Issuing Bank shall as promptly as possible give telephonic notification,
confirmed by telecopy, to the Administrative Agent and the Borrower of such
demand for payment and whether such Issuing Bank has made or will make an L/C
Disbursement thereunder; provided, however, that any failure to give or delay
in giving such notice shall not relieve the Borrower of its obligation to
reimburse such Issuing Bank and the Revolving Credit Lenders with respect to
any such L/C Disbursement. The Administrative Agent shall promptly give each
Revolving Credit Lender notice thereof.
(h) Interim Interest. If any Issuing Bank shall make any L/C
Disbursement in respect of a Letter of Credit, then, unless the Borrower shall
reimburse such L/C Disbursement in full on such date, the unpaid amount
thereof shall bear interest for the account of such Issuing Bank, for each day
from and including the date of such L/C Disbursement, to but excluding the
earlier of the date of payment by the Borrower or the date on which interest
shall commence to accrue thereon as provided in Section 2.02(f), at the rate
per annum that would apply to such amount if such amount were an ABR Loan.
(i) Resignation or Removal of any Issuing Bank; Additional Issuing
Banks. Any Issuing Bank may resign at any time by giving 180 days' prior
written notice to the Administrative Agent, the Lenders and the Borrower, and
may be removed at any time by the Borrower by notice to such Issuing Bank, the
Administrative Agent and the Lenders. The Borrower may appoint additional
Issuing Banks reasonably satisfactory to the Administrative Agent, and upon
the acceptance of any appointment as an Issuing Bank hereunder by a Lender
that shall agree to serve as an Issuing Bank, such successor shall succeed to
and become vested with all the interests, rights and obligations of an Issuing
Bank; provided, however, that there shall not be more than three Issuing Banks
at any time. Upon resignation or removal, an Issuing Bank shall be discharged
from its obligations to issue additional Letters of Credit hereunder. At the
time such resignation or removal shall become effective, the Borrower shall
pay all accrued and unpaid Issuing Bank Fees due to such Issuing Bank. The
acceptance of any appointment as an Issuing Bank hereunder by a Lender shall
be evidenced by an agreement entered into by such Lender, in a form
satisfactory to the Borrower and the Administrative Agent, and, from and after
the effective date of such agreement, (i) such Lender shall have all the
rights and obligations of an Issuing Bank under this Agreement and the other
Loan Documents and (ii) references herein and in the other Loan Documents to
the term "Issuing Bank" shall be deemed to refer to such additional Issuing
Bank and to any previously appointed Issuing Bank, or to such successor and
all previously appointed Issuing Banks, as the context shall require. After
the resignation or removal of an Issuing Bank hereunder, such Issuing Bank
shall remain a party hereto and shall continue to have all the rights and
obligations of an Issuing Bank under this Agreement and the other Loan
Documents with respect to Letters of Credit issued by it prior to such
resignation or removal, but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If (i) any Event of Default shall
occur and be continuing and the Administrative Agent or the Required Lenders
shall demand that the L/C Exposure be cash collateralized, (ii) the maturity
of the Loans shall be accelerated pursuant to Article VIII or (iii) the
Borrower shall be required to provide cash collateral for a portion of the L/C
Exposure pursuant to Section 2.13(a), the Borrower shall deposit in an account
with the Collateral Agent, for the benefit of the Revolving Credit Lenders, an
amount in cash equal to the L/C Exposure (or, in the case of a deposit
pursuant to clause (iii) above, the portion of the L/C Exposure required to be
collateralized) as of such date. Such deposit shall be held by the Collateral
Agent as collateral for the payment and performance of the Obligations. The
Collateral Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest
earned on the investment of such deposits in Permitted Investments, which
investments shall be made at the option and sole discretion of the Collateral
Agent, such deposits shall not bear interest. Interest or profits, if any, on
such investments shall accumulate in such account. Moneys in such account
shall (i) automatically be applied by the Administrative Agent to reimburse
each Issuing Bank for L/C Disbursements for which it has not been reimbursed,
(ii) be held for the satisfaction of the reimbursement obligations of the
Borrower for the L/C Exposure at such time and (iii) if the maturity of the
Loans has been accelerated (but subject to the consent of Revolving Credit
Lenders holding participations in outstanding Letters of Credit representing
greater than 50 percent of the aggregate undrawn amount of all outstanding
Letters of Credit), be applied to satisfy other Obligations. If the Borrower
is required to provide an amount of cash collateral hereunder (x) as a result
of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived and or (y) pursuant
to Section 2.13(a), such amount (to the extent not applied as aforesaid) shall
be returned to the Borrower within three Business Days after the elimination
the excess of the aggregate L/C Exposure over the Total Revolving Credit
Commitment.
ARTICLE III. REPRESENTATIONS AND WARRANTIES
Each of Connector and the Borrower represents and warrants to the
Administrative Agent, the Collateral Agent, each Issuing Bank and each of the
Lenders that:
SECTION 3.01. Organization; Powers. Each of Connector and the
Borrower and each of the other Subsidiaries (a) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite power and authority to
own its property and assets and to carry on its business as now conducted and
as proposed to be conducted, (c) is qualified to do business in, and is in
good standing in, every jurisdiction where such qualification is required,
except where the failure so to qualify could not reasonably be expected to
result in a Material Adverse Effect, and (d) has the corporate power and
authority to execute, deliver and perform its obligations under each of the
Loan Documents and each other agreement or instrument contemplated hereby to
which it is or will be a party and, in the case of the Borrower, to borrow
hereunder.
SECTION 3.02. Authorization. The execution, delivery and
performance by each Loan Party of each of the Loan Documents and the
borrowings hereunder (collectively, the "Transactions") (a) have been duly
authorized by all requisite corporate and, if required, stockholder action and
(b) will not (i) violate (A) any provision of law, statute, rule or
regulation, or of the certificate or articles of incorporation or other
constitutive documents or by-laws of Connector, the Borrower or any other
Subsidiary, (B) any order of any Governmental Authority or (C) any provision
of any indenture, agreement or other instrument to which Connector, the
Borrower or any other Subsidiary is a party or by which any of them or any of
their property is or may be bound, (ii) be in conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or both) a
default under, or give rise to any right to accelerate or to require the
prepayment, repurchase or redemption of any obligation under any such
indenture, agreement or other instrument or (iii) result in the creation or
imposition of any Lien upon or with respect to any property or assets now
owned or hereafter acquired by Connector, the Borrower or any other Subsidiary
(other than any Lien created under the Security Documents).
SECTION 3.03. Enforceability. This Agreement has been duly
executed and delivered by Connector and the Borrower and constitutes, and each
other Loan Document when executed and delivered by each Loan Party party
thereto will constitute, a legal, valid and binding obligation of such Loan
Party enforceable against such Loan Party in accordance with its terms, except
as limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
general principles of equity.
SECTION 3.04. Governmental Approvals. No action, consent or
approval of, registration or filing with or any other action by any
Governmental Authority is or will be required in connection with the
Transactions, except such as have been made or obtained and are in full force
and effect.
SECTION 3.05. Financial Statements. The Borrower has heretofore
furnished to the Lenders its consolidated balance sheets and statements of
income and changes in financial condition (a) as of and for the fiscal years
ended December 31, 1994, and December 31, 1993, which financial statements
were used in the preparation of the corresponding consolidated financial
statements of Oak, upon which Price Waterhouse LLP, independent public
accountants, issued an opinion, and (b) as of and for the fiscal quarter and
the portion of the fiscal year ended June 30, 1995, certified by its chief
financial officer. Such financial statements present fairly in all material
respects the financial condition and results of operations of the Borrower and
its consolidated subsidiaries as of such dates and for such periods. Such
balance sheets and the notes thereto disclose all material liabilities, direct
or contingent, of the Borrower and its consolidated subsidiaries as of the
dates thereof required to be disclosed therein in accordance with GAAP. Such
financial statements were prepared in accordance with GAAP applied on a
consistent basis, except, in the case of the statements referred to in clause
(b) above, for the absence of footnotes and for normal year-end adjustments.
SECTION 3.06. No Material Adverse Change. There has been no
material adverse change in the business, assets, operations, prospects,
condition, financial or otherwise, of the Borrower and its subsidiaries, taken
as a whole, since December 31, 1994.
SECTION 3.07. Title to Properties; Possession Under Leases. (a)
Each of Connector, the Borrower and the other Subsidiaries has good and
marketable title to, or valid leasehold interests in, all its material
properties and assets, except for minor defects in title that do not interfere
with its ability to conduct its business as currently conducted or to utilize
such properties and assets for their intended purposes. All such material
properties and assets are free and clear of Liens, other than Liens expressly
permitted by Section 6.02.
(b) Each of Connector, the Borrower and the other Subsidiaries has
complied in all material respects with all obligations under all material
leases to which it is a party and all such leases are in full force and
effect. Each of Connector, the Borrower and the other Subsidiaries enjoys
peaceful and undisturbed possession under all such material leases.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the
Closing Date a list of all Subsidiaries and the percentage ownership interest
of Connector therein. With respect to each person listed thereon, Schedule
3.08 indicates whether such person is as of the Closing Date an Inactive
Subsidiary. The shares of capital stock or other ownership interests so
indicated on Schedule 3.08 are fully paid and non-assessable and as of the
Closing Date are owned by Connector, directly or indirectly, free and clear of
all Liens.
SECTION 3.09. Litigation; Compliance with Laws. (a) There are not
any actions, suits or proceedings at law or in equity or by or before any
Governmental Authority, or any investigations by any Governmental Authority,
now pending or, to the knowledge of Connector or the Borrower, threatened
against or affecting Connector, the Borrower or any other Subsidiary or any
business, property or rights of any such person (i) that involve any Loan
Document or the Transactions or (ii) as to which there is a reasonable
possibility of an adverse determination and which, if adversely determined,
could reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
(b) None of Connector, the Borrower or any of the other
Subsidiaries or any of their respective material properties or assets is in
violation of, nor will the continued operation of their businesses and their
material properties and assets as currently conducted violate, any law, rule
or regulation, judgment, writ, injunction, decree or order of any Governmental
Authority, where such violation could reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. Agreements. (a) None of Connector, the Borrower or
any of the other Subsidiaries is a party to any agreement or instrument or
subject to any corporate restriction that has resulted or could reasonably be
expected to result in a Material Adverse Effect.
(b) None of Connector, the Borrower or any of the other
Subsidiaries is in default in any manner under any provision of any indenture
or other agreement or instrument evidencing Indebtedness, or any other
material agreement or instrument to which it is a party or by which it or any
of its properties or assets are or may be bound, where such default could
reasonably be expected to result in a Material Adverse Effect.
SECTION 3.11. Federal Reserve Regulations. (a) None of
Connector, the Borrower or any of the other Subsidiaries is engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of buying or carrying Margin Stock.
(b) No part of the proceeds of any Loan or any Letter of Credit
will be used, whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that entails a violation of, or
that is inconsistent with, the provisions of the Regulations of the Board,
including Regulation G, U or X.
SECTION 3.12. Investment Company Act; Public Utility Holding
Company Act. Neither Connector nor the Borrower nor any other 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.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds
of the Loans and will request the issuance of Letters of Credit only for the
purposes specified in the preamble to this Agreement.
SECTION 3.14. Tax Returns. Each of Connector, the Borrower and the
other Subsidiaries has filed or caused to be filed all Federal, state, local
and foreign tax returns or materials required to have been filed by it and has
paid or caused to be paid all taxes due and payable by it and all assessments
received by it, except taxes that are being contested in good faith by
appropriate proceedings and for which Connector, the Borrower or such other
Subsidiary, as applicable, shall have set aside on its books adequate
reserves.
SECTION 3.15. No Material Misstatements. None of any information,
report, financial statement, exhibit or schedule furnished by or on behalf of
Connector or the Borrower to the extent it pertains to Connector, the Borrower
and the other Subsidiaries to the Administrative Agent or any Lender in
connection with the negotiation of any Loan Document or included therein or
delivered pursuant thereto contained, contains or will contain any material
misstatement of fact or omitted, omits or will omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were, are or will be made, not misleading; provided, however,
that to the extent any such information, report, financial statement, exhibit
or schedule was based upon or constitutes a forecast or projection, each of
Connector and the Borrower represents only that it acted in good faith and
utilized reasonable assumptions and due care in the preparation of such
information, report, financial statement, exhibit or schedule.
SECTION 3.16. Employee Benefit Plans. Each of Connector, the
Borrower and the ERISA Affiliates is in compliance in all material respects
with the applicable provisions of ERISA and the Code and the regulations and
published interpretations thereunder. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such
ERISA Events, could reasonably be expected to result in material liability of
the Borrower or any of the ERISA Affiliates. The present value of all benefit
liabilities under each Plan (based on those assumptions used to fund such
Plan) did not, as of the last annual valuation date applicable thereto, exceed
by more than $6,000,000 the fair market value of the assets of such Plan, and
the present value of all benefit liabilities of all underfunded Plans (based
on those assumptions used to fund each such Plan) did not, as of the last
annual valuation dates applicable thereto, exceed by more than $6,000,000 the
fair market value of the assets of all such underfunded Plans.
SECTION 3.17. Environmental Matters. Except as set forth in
Schedule 3.17:
(a) the properties owned or operated by Connector, the Borrower and
the other Subsidiaries (the "Properties") do not contain any Hazardous
Materials in amounts or concentrations which (i) constitute, or constituted a
violation of, or (ii) is reasonably likely to give rise to liability under,
Environmental Laws, which violations and liabilities, in the aggregate, could
result in a Material Adverse Effect;
(b) the Properties and all operations of Connector, the Borrower and
the other Subsidiaries are in compliance, and in the last three years have
been in compliance, with all Environmental Laws and all necessary
Environmental Permits have been obtained and are in effect, except to the
extent that such non-compliance or failure to obtain any necessary permits, in
the aggregate, could not result in a Material Adverse Effect;
(c) there have been no Releases or threatened Releases at, from,
under or proximate to the Properties or otherwise in connection with the
operations of Connector, the Borrower or the other Subsidiaries, which
Releases or threatened Releases, in the aggregate, could result in a Material
Adverse Effect;
(d) none of Connector, the Borrower or any of the other Subsidiaries
has received any notice of an Environmental Claim in connection with the
Properties or the operations of Connector, the Borrower or the other
Subsidiaries or with regard to any person whose liabilities for environmental
matters Connector, the Borrower or the other Subsidiaries has retained or
assumed, in whole or in part, contractually, by operation of law or otherwise,
which, in the aggregate, could result in a Material Adverse Effect, nor do
Connector, the Borrower or the other Subsidiaries have reason to believe that
any such notice will be received or is being threatened; and
(e) Hazardous Materials have not been transported from the
Properties, nor have Hazardous Materials been generated, treated, stored or
disposed of at, on or under any of the Properties in a manner that could give
rise to liability under any Environmental Law, nor have Connector, the
Borrower or the other Subsidiaries retained or assumed any liability,
contractually, by operation of law or otherwise, with respect to the
generation, treatment, storage or disposal of Hazardous Materials, which
transportation, generation, treatment, storage or disposal, or retained or
assumed liabilities, in the aggregate, could result in a Material Adverse
Effect.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete
and correct description of all insurance maintained by Connector or the
Borrower or by Connector or the Borrower for the other Subsidiaries as of the
date hereof and the Closing Date. As of each such date, such insurance is in
full force and effect and all premiums have been duly paid. Connector, the
Borrower and the other Subsidiaries have insurance in such amounts and
covering such risks and liabilities as are in accordance with normal industry
practice.
SECTION 3.19. Security Documents. The Pledge Agreement is
effective to create in favor of the Collateral Agent, for the ratable benefit
of the Secured Parties, a legal, valid and enforceable security interest in
the Collateral (as defined in the Pledge Agreement) and, when the Collateral
is delivered to the Collateral Agent, the Pledge Agreement shall constitute a
fully perfected first priority Lien on, and security interest in, all right,
title and interest of the pledgor thereunder in such Collateral, in each case
prior and superior in right to any other person. No Liens, other than those
created pursuant to the Loan Documents and other than the Connector Pledge,
exist on the Capital Stock of the Borrower or the other Subsidiaries.
SECTION 3.20. Labor Matters. As of the date hereof and the Closing
Date, there are no strikes, lockouts or slowdowns against Connector, the
Borrower or any other Subsidiary pending or, to the knowledge of Connector,
the Borrower, threatened. The hours worked by and payments made to employees
of Connector, the Borrower and the other Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters, other than such
violations that, individually and in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. All payments due from
Connector, the Borrower or any other Subsidiary, or for which any claim may be
made against Connector, the Borrower or any other Subsidiary, on account of
wages and employee health and welfare insurance and other benefits, have been
paid or accruals have been made on the books of Connector, the Borrower or
such other Subsidiary to cover such payments. The consummation of the
Transactions will not give rise to any right of termination or right of
renegotiation on the part of any union under any collective bargaining
agreement to which Connector, the Borrower or any other Subsidiary is bound.
SECTION 3.21. Solvency. Immediately after the consummation of the
Transactions to occur on the Closing Date and immediately following the making
of each Loan made on the Closing Date and after giving effect to the
application of the proceeds of such Loans, (i) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its probable liability on
its debts and liabilities, subordinated, contingent or otherwise; (ii) the
present fair saleable value of the property of each Loan Party will be greater
than the amount that will be required to pay the probable liability of its
debts and other liabilities, subordinated, contingent or otherwise, as such
debts and other liabilities become absolute and matured; (iii) each Loan Party
will be able to pay its debts and liabilities, subordinated, contingent or
otherwise, as such debts and liabilities become absolute and matured; and (iv)
each Loan Party will not have unreasonably small capital with which to conduct
the business in which it is engaged as such business is now conducted and is
proposed to be conducted following the Closing Date.
ARTICLE IV. CONDITIONS OF LENDING
The obligations of the Lenders to make Loans and of the Issuing
Banks to issue Letters of Credit hereunder are subject to the satisfaction of
the following conditions:
SECTION 4.01. All Credit Events. On the date of each Borrowing
(other than a Borrowing that results from the conversion or continuation of an
existing Borrowing) and on the date of each issuance of a Letter of Credit
(each such event being called a "Credit Event"):
(a) The Administrative Agent shall have received a notice of such
Borrowing as required by Section 2.03 or, in the case of the issuance of a
Letter of Credit, the applicable Issuing Bank and the Administrative Agent
shall have received a notice requesting the issuance of such Letter of Credit
as required by Section 2.22(b).
(b) The representations and warranties set forth in Article III
hereof shall be true and correct in all material respects on and as of the
date of such Credit Event with the same effect as though made on and as of
such date, except to the extent such representations and warranties expressly
relate to an earlier date.
(c) The Borrower shall be in compliance with all the terms and
provisions set forth herein and in each other Loan Document on its part to be
observed or performed, and at the time of and immediately after such Credit
Event, no Event of Default or Default shall have occurred and be continuing.
Except as expressly provided in paragraph (b) above, each Credit Event shall
be deemed to constitute a representation and warranty by the Borrower on the
date of such Credit Event as to the matters specified in paragraphs (b) and
(c) of this Section 4.01.
SECTION 4.02. First Credit Event. On the Closing Date:
(a) The Administrative Agent shall have received, on behalf of
itself, the Lenders and the Issuing Banks, a favorable written opinion of
Ropes & Gray, counsel for the Borrower, substantially to the effect set forth
in Exhibit G, (i) dated the Closing Date, (ii) addressed to the Issuing Banks,
the Administrative Agent and the Lenders, and (iii) covering such other
matters relating to the Loan Documents and the Transactions as the
Administrative Agent shall reasonably request, and the Borrower hereby
requests such counsel to deliver such opinion.
(b) All legal matters incident to this Agreement, the Borrowings
and extensions of credit hereunder and the other Loan Documents shall be
satisfactory to the Administrative Agent, the Lenders and their counsel, the
Issuing Banks and Cravath, Swaine & Moore, counsel for the Administrative
Agent.
(c) The Administrative Agent shall have received (i) a copy of the
certificate or articles of incorporation, including all amendments thereto, of
each Loan Party, certified as of a recent date by the Secretary of State or
other applicable Governmental Authority of the state of its organization, and
a certificate as to the good standing of each Loan Party as of a recent date,
from such Secretary of State; (ii) a certificate of the Secretary or Assistant
Secretary of each Loan Party dated the Closing Date and certifying (A) that
attached thereto is a true and complete copy of the by-laws of such Loan Party
as in effect on the Closing Date and at all times since a date prior to the
date of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board
of Directors of such Loan Party authorizing the execution, delivery and
performance of the Loan Documents to which such person is a party and, in the
case of the Borrower, the borrowings hereunder, and that such resolutions have
not been modified, rescinded or amended and are in full force and effect, (C)
that the certificate or articles of incorporation of such Loan Party have not
been amended since the date of the last amendment thereto shown on the
certificate of good standing furnished pursuant to clause (i) above, and (D)
as to the incumbency and specimen signature of each officer executing any Loan
Document or any other document delivered in connection herewith on behalf of
such Loan Party; (iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to (ii) above; and (iv) such other documents as the
Lenders, the Issuing Banks or Cravath, Swaine & Moore, counsel for the
Administrative Agent, may reasonably request.
(d) The Administrative Agent shall have received a certificate,
dated the Closing Date and signed by a Financial Officer of the Borrower,
confirming compliance with the conditions precedent set forth in paragraphs
(b) and (c) of Section 4.01.
(e) The Administrative Agent shall have received all Fees and other
amounts due and payable on or prior to the Closing Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder or under any other
Loan Document.
(f)(i) The Pledge Agreement shall have been duly executed by the
parties thereto and delivered to the Collateral Agent and shall be in full
force and effect, and all the outstanding capital stock of the Borrower and
the other Subsidiaries (other than the Inactive Subsidiaries) shall have been
duly and validly pledged thereunder to the Collateral Agent for the ratable
benefit of the Secured Parties and certificates representing such shares,
accompanied by undated stock powers endorsed in blank, shall be in the actual
possession of the Collateral Agent; provided, however, that (A) none of
Connector, the Borrower or any other Domestic Subsidiary shall be required to
pledge more than 65 percent of the capital stock of any Foreign Subsidiary and
(B) no Foreign Subsidiary shall be required to pledge the capital stock of any
of its subsidiaries and (ii) the Oak Pledge Agreement shall have been duly
executed by the parties thereto and delivered to the Collateral Agent and
shall be in full force and effect.
(g) Each of the Guarantee Agreement and the Indemnity, Subrogation
and Contribution Agreement shall have been duly executed by the parties
thereto and shall have been delivered to the Collateral Agent and shall be in
full force and effect.
(h) After giving effect to the Borrowings hereunder on the Closing
Date and the application of the proceeds thereof, Connector, the Borrower and
the other Subsidiaries shall have no Indebtedness other than the Loans
hereunder and Indebtedness otherwise permitted under Section 6.01. All
agreements, commitments, security interests and other rights and obligations
in respect of the Existing Indebtedness shall have been terminated and all
amounts due in respect thereof shall have been paid in full from the proceeds
of the Loans made on the Closing Date, except as set forth on Schedule 6.01
and Schedule 6.02.
(i) The likely tax position and the contingent tax and other
liabilities of Connector, the Borrower and the other Subsidiaries and the
plans of Connector and the Borrower with respect thereto shall not have
changed in any material respect since the date of the Confidential Information
Memorandum.
(j) The likely amount and nature of any environmental and employee
health and safety exposures to which Connector, the Borrower and the other
Subsidiaries may be subject and the plans of Connector and the Borrower with
respect thereto shall not have changed in any material respect since the date
of the Confidential Information Memorandum.
(k) All approvals and consents of Governmental Authorities and
third parties required in connection with the Acquisition and the other
Transactions shall have been obtained (except as described in Section 3.04)
and all applicable appeal periods shall have expired, and there shall be no
action, pending or threatened, by or before any Governmental Authority that
has or could have a reasonable likelihood of restraining, preventing or
imposing burdensome conditions on the Acquisition or the other Transactions.
(l) The Lenders shall have received the financial statements
referred to in Section 3.05 and all other financial information reasonably
requested by the Administrative Agent.
ARTICLE V. AFFIRMATIVE COVENANTS
Each of Connector and the Borrower covenants and agrees with each
Lender that so long as this Agreement shall remain in effect and until the
Commitments have been terminated and the principal of and interest on each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document shall have been paid in full and all Letters of Credit have been
canceled or have expired and all amounts drawn thereunder have been reimbursed
in full, unless the Required Lenders shall otherwise consent in writing,
Connector and the Borrower will, and will cause each of the other Subsidiaries
to:
SECTION 5.01. Existence; Businesses and Properties. (a) Do or
cause to be done all things necessary to preserve, renew and keep in full
force and effect its legal existence, except as otherwise expressly permitted
under Section 6.05.
(b) Do or cause to be done all things necessary to obtain,
preserve, renew, extend and keep in full force and effect the rights,
licenses, permits, franchises, authorizations, patents, copyrights, trademarks
and trade names material to the conduct of its business; maintain and operate
such business in substantially the manner in which it is presently conducted
and operated; comply in all material respects with all applicable laws, rules,
regulations and decrees and orders of any Governmental Authority, whether now
in effect or hereafter enacted; and at all times maintain and preserve all
property material to the conduct of such business and keep such property in
good repair, working order and condition and from time to time make, or cause
to be made, all needful and proper repairs, renewals, additions, improvements
and replacements thereto necessary in order that the business carried on in
connection therewith may be properly conducted at all times.
SECTION 5.02. Insurance. Keep its insurable properties adequately
insured at all times by financially sound and reputable insurers; maintain
such other insurance, to such extent and against such risks, including fire
and other risks insured against by extended coverage, as is customary with
companies in the same or similar businesses operating in the same or similar
locations, including public liability insurance against claims for personal
injury or death or property damage occurring upon, in, about or in connection
with the use of any properties owned, occupied or controlled by it; and
maintain such other insurance as may be required by law.
SECTION 5.03. Obligations and Taxes. Pay and perform its
Indebtedness and other obligations promptly and in accordance with their terms
and pay and discharge promptly when due all taxes, assessments and
governmental charges or levies imposed upon it or upon its income or profits
or in respect of its property, before the same shall become delinquent or in
default, as well as all lawful claims for labor, materials and supplies or
otherwise that, if unpaid, might give rise to a Lien upon such properties or
any part thereof; provided, however, that such payment and discharge shall not
be required with respect to any such tax, assessment, charge, levy or claim so
long as the validity or amount thereof shall be contested in good faith by
appropriate proceedings and the Borrower shall have set aside on its books
adequate reserves with respect thereto in accordance with GAAP and such
contest operates to suspend collection of the contested obligation, tax,
assessment or charge and enforcement of a Lien.
SECTION 5.04. Financial Statements, Reports, etc. In the case of
the Borrower, furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year, its
consolidated and consolidating balance sheets and related statements of
operations, stockholders' equity and cash flows showing the financial
condition of the Borrower and its consolidated subsidiaries as of the close of
such fiscal year and the results of its operations and the operations of such
Subsidiaries during such year, which, (i) in the case of the consolidated
financial statements, (A) were used in the preparation of the corresponding
consolidated financial statements of Oak, which financial statements of Oak
were audited by Price Waterhouse LLP or other independent public accountants
of recognized national standing acceptable to the Required Lenders and
accompanied by an opinion of such accountants (which shall not be qualified in
any material respect) to the effect that such consolidated financial
statements of Oak present fairly in all material respects the financial
condition and results of operations of Oak and its subsidiaries on a
consolidated basis in accordance with GAAP consistently applied or (B) were
audited by Price Waternouse LLP or other independent public accountants of
recognized national standing acceptable to the Required Lenders and
accompanied by an opinion of such accountants (which shall not be qualified in
any material respect) to the effect that such consolidated financial
statements present fairly in all material respects the financial condition and
results of operations of the Borrower and its subsidiaries in accordance with
GAAP consistently applied, and (ii) in the case of the consolidating financial
statements of the Borrower and its subsidiaries, certified by a Financial
Officer of the Borrower as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
subsidiaries on a consolidating basis in accordance with GAAP consistently
applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year, its consolidated and consolidating balance
sheets and related statements of operations, stockholders' equity and cash
flows showing the financial condition of the Borrower and its consolidated
subsidiaries as of the close of such fiscal quarter and the results of its
operations and the operations of such subsidiaries during such fiscal quarter
and the then elapsed portion of the fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and its subsidiaries on a
consolidated and a consolidating basis in accordance with GAAP consistently
applied, subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements under
sub-paragraph (a) or (b) above, a certificate of the accounting firm or
Financial Officer opining on or certifying such statements (which certificate,
when furnished by an accounting firm, may be limited to accounting matters and
disclaim responsibility for legal interpretations) (i) certifying that no
Event of Default or Default has occurred or, if such an Event of Default or
Default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto (it being
understood that such certificate, when given by an accounting firm, may be
limited to their knowledge as obtained in the course of their audit and
without special investigation) and (ii) setting forth computations in
reasonable detail satisfactory to the Administrative Agent showing the
Leverage Ratio and the Interest Coverage Ratio, in each case of the Borrower
and Adjusted Oak, prior to the Connector Purchase, or of Consolidated Oak,
after the Connector Purchase, as of the last day of the fiscal year or fiscal
quarter to which such statements relate and demonstrating compliance with the
covenants contained in Sections 6.10, 6.11 and 6.12 (it being understood that
the information required by this clause (ii) may be provided in a certificate
of a Financial Officer on behalf of the Borrower instead of from the
accounting firm);
(d) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
Connector, the Borrower or any other Subsidiary with the Securities and
Exchange Commission, or any Governmental Authority succeeding to any or all of
the functions of said Commission, or with any national securities exchange, or
distributed to its shareholders, as the case may be;
(e) if, as a result of any change in accounting principles and
policies from those as in effect on the date hereof, the consolidated and
consolidating financial statements of the Borrower and its subsidiaries
delivered pursuant to paragraph (a) or (b) above will differ in any material
respect from the consolidated or consolidating financial statements that would
have been delivered pursuant to such clauses had no such change in accounting
principles and policies been made, then together with the first delivery of
financial statements pursuant to paragraph (a) and (b) above following such
change, a schedule prepared by a Financial Officer of the Borrower reconciling
such changes to what the financial statements would have been without such
changes;
(f) concurrently with the delivery of financial statement under
subparagraph (a) above, a copy of an operating and capital expenditure budget
for the next succeeding fiscal year;
(g) promptly upon the creation or acquisition of any Subsidiary or
upon any Inactive Subsidiary ceasing to be an Inactive Subsidiary, a
certificate from a Responsible Officer of the Borrower, identifying such
Subsidiary and the ownership interest of Connector, the Borrower and the other
Subsidiaries therein;
(h) simultaneously with the delivery of any financial statements
pursuant to subparagraph (a) or (b) above, a balance sheet and related
statements of operations, cash flows and stockholder's equity for each
unconsolidated subsidiary of the Borrower for the applicable period;
(i) promptly, a copy of all reports submitted in connection with any
material interim or special audit made by independent accountants of the books
of the Borrower or any of its subsidiaries; and
(j) promptly, from time to time, such other information regarding
the operations, business affairs and financial condition of the Borrower or
any of its subsidiaries, or compliance with the terms of any Loan Document, as
the Administrative Agent or any Lender may reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the
Administrative Agent, Issuing Bank and each Lender prompt written notice of
the following:
(a) any Event of Default or Default, specifying the nature and
extent thereof and the corrective action (if any) taken or proposed to be
taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of
intention of any person to file or commence, any action, suit or proceeding,
whether at law or in equity or by or before any Governmental Authority,
against the Borrower or any Affiliate thereof that could reasonably be
expected to result in a Material Adverse Effect; and
(c) any development that has resulted in, or could reasonably be
expected to result in, a Material Adverse Effect.
SECTION 5.06. Employee Benefits. (a) Comply in all material
respects with the applicable provisions of ERISA and the Code and (b) furnish
to the Administrative Agent as soon as possible after, and in any event within
10 days after any Responsible Officer of the Borrower or any ERISA Affiliate
knows or has reason to know that, any ERISA Event has occurred that, alone or
together with any other ERISA Event could reasonably be expected to result in
liability of the Borrower in an aggregate amount exceeding $1,000,000 or
requiring payments exceeding $500,000 in any year, a statement of a Financial
Officer of the Borrower setting forth details as to such ERISA Event and the
action, if any, that the Borrower proposes to take with respect thereto.
SECTION 5.07. Maintaining Records; Access to Properties and
Inspections. Keep proper books of record and account in which full, true and
correct entries in conformity with GAAP and all requirements of law are made
of all dealings and transactions in relation to its business and activities.
Each Loan Party will, and will cause each of its subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender to visit
and inspect the financial records and the properties of Connector, the
Borrower or any other Subsidiary at reasonable times and as often as
reasonably requested and to make extracts from and copies of such financial
records, and permit any representatives designated by the Administrative Agent
or any Lender to discuss the affairs, finances and condition of Connector, the
Borrower or any other Subsidiary with the officers thereof and independent
accountants therefor.
SECTION 5.08. Use of Proceeds. Use the proceeds of the Loans and
request the issuance of Letters of Credit only for the purposes set forth in
the preamble to this Agreement.
SECTION 5.09. Compliance with Environmental Laws. Comply, and
cause all lessees and other persons occupying its Properties to comply, in all
material respects with all Environmental Laws and Environmental Permits
applicable to its operations and Properties; obtain and renew all material
Environmental Permits necessary for its operations and Properties; and conduct
any Remedial Action in accordance with Environmental Laws; provided, however,
that none of Connector, the Borrower or any of the other Subsidiaries shall be
required to undertake any Remedial Action to the extent that its obligation to
do so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such circumstances.
SECTION 5.10. Further Assurances. Execute any and all further
documents and instruments, and take all further action that may be required
under applicable law, or that the Required Lenders, the Administrative Agent
or the Collateral Agent may reasonably request, in order to grant, preserve,
protect and perfect the validity and first priority of the security interests
created or intended to be created by the Security Documents. Connector will
cause any subsequently acquired or organized Domestic Subsidiary (other than
any Inactive Subsidiary) to become party as a Guarantor to the Guarantee
Agreement, the Indemnity Subrogation and Contribution Agreement and each
applicable Security Document in favor of the Collateral Agent. In addition,
Connector will, at its cost and expense, promptly following the date of
acquisition by Connector or any Subsidiary of any new subsidiary (other than
any Inactive Subsidiary, unless the Collateral Agent shall have requested a
pledge of Capital Stock of such Inactive Subsidiary), secure the Obligations
by creating, or causing to be pledged or created, perfected security interests
in all the issued and outstanding Capital Stock of such subsidiary pursuant to
the Pledge Agreement; provided, however, that (a) no more than 65 percent of
the Capital Stock of any Foreign Subsidiary shall be required to be pledged
pursuant to this Section 5.10 and (b) no Foreign Subsidiary shall be required
to pledge any stock of any other Foreign Subsidiary pursuant to this Section
5.10. Such security interests and Liens will be created under the Security
Documents and other security agreements, instruments and documents in form and
substance reasonably satisfactory to the Collateral Agent, and each of
Connector and the Borrower shall deliver or cause to be delivered to the
Lenders all such instruments and documents (including legal opinions and lien
searches) as the Collateral Agent shall reasonably request to evidence
compliance with this Section 5.10. Each of Connector and the Borrower agrees
to provide such evidence as the Collateral Agent shall reasonably request as
to the perfection and priority status of each such security interest.
Notwithstanding anything to the contrary herein or in the Security Documents,
if no Default or Event of Default shall have occurred and be continuing before
and after giving effect to the Connector Purchase, the Collateral Agent shall
release the security interests and Liens on the Collateral upon the closing of
the Connector Purchase (the "Permitted Release").
ARTICLE VI. NEGATIVE COVENANTS
Each of Connector and the Borrower covenants and agrees with each
Lender that, so long as this Agreement shall remain in effect and until the
Commitments have been terminated and the principal of and interest on each
Loan, all Fees and all other expenses or amounts payable under any Loan
Document have been paid in full and all Letters of Credit have been cancelled
or have expired and all amounts drawn thereunder have been reimbursed in full,
unless the Required Lenders shall otherwise consent in writing, Connector and
the Borrower will not, and will not cause or permit any of the other
Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to
exist any Indebtedness, except:
(a) Indebtedness for borrowed money existing on the date hereof and
set forth in Schedule 6.01, but not any extensions, renewals or replacements
of such Indebtedness;
(b) Indebtedness created hereunder;
(c) (i) in the case of the Borrower, Indebtedness owed to any wholly
owned Subsidiary that is a Guarantor and (ii) in the case of any subsidiary of
the Borrower, Indebtedness owed to the Borrower or any wholly owned Subsidiary
that is a Guarantor, in each of clauses (i) and (ii) only if such Indebtedness
is evidenced by a note or notes which are pledged to the Collateral Agent
under the Pledge Agreement;
(d) in the case of the Borrower, Indebtedness described in clause
(i) of the definition of "Indebtedness" entered into in the ordinary course of
business on terms and with counterparties reasonably satisfactory to the
Administrative Agent;
(e) purchase money Indebtedness incurred in the ordinary course of
business after the date hereof to finance Capital Expenditures permitted under
Section 6.10 in a principal amount at any time outstanding not in excess of
(i) $10,000,000 less (ii) the amount of all Capital Lease Obligations incurred
pursuant to clause (f) below and outstanding at such time; provided, however,
that such Indebtedness is incurred within 90 days after the making of the
Capital Expenditure so financed;
(f) Capital Lease Obligations incurred in the ordinary course of
business after the date hereof to finance Capital Expenditures permitted under
Section 6.10 in a principal amount at any time outstanding not in excess of
(i) $10,000,000 less (ii) the principal amount of all purchase money
indebtedness incurred pursuant to clause (g) above and outstanding at such
time;
(g) in the case of the Borrower or any Guarantor, Guarantees of
Indebtedness permitted under clause (d), (e) or (f) above;
(h) Indebtedness of Foreign Subsidiaries not in excess of $5,000,000
principal amount at any time outstanding;
(i) Indebtedness of Foreign Subsidiaries to Guarantors described in
Section 6.04(f); and
(j) other unsecured Indebtedness of the Borrower not in excess of
$5,000,000 principal amount at any time outstanding.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any
Lien on any property or assets (including stock or other securities of any
person, including any Subsidiary) now owned or hereafter acquired by it or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens on property or assets of the Borrower and its subsidiaries
existing on the date hereof and set forth in Schedule 6.02; provided, however,
that such Liens shall secure only those obligations which they secure on the
date hereof;
(b) any Lien created under the Loan Documents;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any of its subsidiaries; provided,
however, that (i) such Lien is not created in contemplation of or in
connection with such acquisition and (ii) such Lien does not apply to any
other property or assets of the Borrower or any of its subsidiaries;
(d) Liens for taxes, assessments and other government charges not
yet due or which are being contested in compliance with Section 5.03;
(e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business and
securing obligations that are not due and payable or which are being contested
in compliance with Section 5.03;
(f) pledges and deposits made in the ordinary course of business in
compliance with workmen's compensation, unemployment insurance and other
social security laws or regulations;
(g) deposits to secure the performance of bids, trade contracts
(other than for Indebtedness), leases (other than Capital Lease Obligations),
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(h) zoning restrictions, easements, rights-of-way, restrictions on
use of real property and other similar encumbrances incurred in the ordinary
course of business which, in the aggregate, are not substantial in amount and
do not materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the business of the Borrower or any of
its Subsidiaries;
(i) purchase money security interests in real property, improvements
thereto or equipment hereafter acquired (or, in the case of improvements,
constructed) by the Borrower or any of its subsidiaries; provided, however,
that (i) such security interests secure Indebtedness permitted by Section
6.01(e), (ii) such security interests are incurred, and the Indebtedness
secured thereby is created, within 90 days after such acquisition (or
construction), (iii) the Indebtedness secured thereby is not less than 50
percent nor more than 100 percent of the lesser of the cost or the fair market
value of such real property, improvements or equipment at the time of such
acquisition (or construction) and (iv) such security interests do not apply to
any other property or assets of the Borrower or any of its subsidiaries;
(j) Liens represented by the interests of the lessors in respect of
Capital Lease Obligations incurred pursuant to Section 6.01(f);
(k) Liens represented by Sale and Lease-Back Transactions incurred
pursuant to Section 6.03;
(l) Liens on assets of Foreign Subsidiaries that only secure
Indebtedness permitted under Section 6.01(h); and
(m) a Lien on a $175,000 cash deposit with Bankers Trust Company
securing an outstanding letter of credit.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any
Sale and Lease-Back Transaction if, after giving effect thereto, the aggregate
Attributable Debt for all outstanding Sale and Lease-Back Transactions would
exceed $10,000,000.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist
any investment or any other interest in, any other person, except:
(a) investments by Connector or the Borrower existing or committed
to on the date hereof in the capital stock of the Subsidiaries;
(b) Permitted Investments;
(c) investments, loans or advances in or to Guarantors that are
subsidiaries of the Borrower;
(d) Permitted Other Acquisitions;
(e) loans to officers or employees of the Borrower in the ordinary
course not in excess of $1,000,000 principal amount at any time outstanding;
(f) additional loans and advances from the Borrower or any Guarantor
to subsidiaries of the Borrower listed on Schedule 6.04(f) or the Borrower not
in excess of $20,000,000 aggregate principal amount outstanding at any time;
provided, however, that all such loans and advances are evidenced by a note or
notes which are pledged to the Collateral Agent under the Pledge Agreement;
(g) investments in, or loans or advances to, foreign joint ventures
existing or committed to on the date hereof; and
(h) other investments in, or loans or advances to, or Guarantees of
Indebtedness of, Subsidiaries or foreign joint ventures in a net amount not in
excess of $5,000,000 outstanding at any time.
SECTION 6.05. Mergers, Consolidations, Sales of Assets and
Acquisitions. Merge into or consolidate with any other person, or permit any
other person to merge into or consolidate with it, or sell, transfer, lease or
otherwise dispose of (in one transaction or in a series of transactions) all
or any substantial part of its assets (whether now owned or hereafter
acquired) or any Capital Stock of the Borrower or any other Subsidiary, or
purchase, lease or otherwise acquire (in one transaction or a series of
transactions) all or any substantial part of the assets of any other person,
except that this Section 6.05 shall not prohibit:
(a) the purchase and sale of inventory in the ordinary course of
business by the Borrower or any other Subsidiary;
(b) if at the time thereof and immediately after giving effect
thereto no Event of Default or Default shall have occurred and be continuing
(i) the merger of any wholly owned Subsidiary into the Borrower in a
transaction in which the Borrower is the surviving corporation and (ii) the
merger or consolidation of any wholly owned Subsidiary into or with any other
wholly owned Subsidiary in a transaction in which the surviving entity is a
wholly owned Subsidiary (which shall be a Domestic Subsidiary if the non-
surviving person shall be a Domestic Subsidiary) or the dissolution or
liquidation of a wholly owned Subsidiary, and, in the case of each of clauses
(i) and (ii), no person other than the Borrower or a wholly owned Subsidiary
receives any consideration;
(c) the acquisition of another person or all or a substantial part
of its assets if (i) the acquired person is engaged in the same business as
the Borrower or another business reasonably related thereto, and (ii) at the
time of and after giving effect to such acquisition, no Event of Default or
Default has occurred and is continuing, and (iii) after giving effect to such
acquisition, the Borrower shall be in compliance, on a pro forma basis, with
Sections 6.10, 6.11 and 6.12, and (iv) such acquisition is approved by the
board of directors of the acquired person prior to the commencement of any
tender offer or the acquisition by the Borrower of any shares of Capital Stock
thereof, and (v) after giving effect to such acquisition, the Borrower
controls the dividend policy of the Capital Stock of the acquired person and
owns at least 80 percent of the common equity thereof and (vi) (A) on the date
of such acquisition and after giving effect thereto the Designated Financial
Tests are satisfied on an actual and, unless the Borrower is relying on clause
(a)(ii) of the definition of "Designated Financial Tests", pro forma basis, or
(B) the aggregate consideration paid after the Closing Date for acquisitions
(other than acquisitions meeting the requirements of clause (A) above) is not
in excess of $10,000,000; provided, however, that the aggregate consideration
paid under this clause (c) after the Closing Date for acquisition of persons
not incorporated or organized under the laws of the United States of America,
any State thereof or the District of Columbia shall not in any event exceed
$10,000,000 (the foregoing collectively defined as "Permitted Other
Acquisitions");
(d) sales or other dispositions by the Borrower or any Subsidiary of
assets (other than receivables, except to the extent disposed of incidentally
in connection with an asset disposition otherwise permitted hereby), for
consideration in an aggregate amount not exceeding $25,000,000; provided,
however, that (i) each such disposition shall be for a consideration
determined in good faith by the board of directors or senior management of the
Borrower to be at least equal to the fair market value (if any) of the asset
sold, (ii) the aggregate amount of all non-cash consideration included in the
proceeds of any such disposition may not exceed 20 percent of the fair market
value of such proceeds (provided that obligations of the type referred to in
clause (a) of the definition of "Permitted Investments" shall not be deemed
non-cash proceeds if such obligations are promptly sold for cash and the
proceeds of such sale are included in the calculation of Net Proceeds from
such sale), (iii) the aggregate Net Proceeds of all such dispositions under
this clause (f) shall be applied in accordance with Section 2.13(b), and (iv)
no Default or Event of Default shall have occurred and be continuing
immediately prior to or after such disposition.
SECTION 6.06. Restrictions on Ability of Subsidiaries to Pay
Dividends. Permit Connector, the Borrower or the other Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of Connector, the
Borrower or any other Subsidiary to, except pursuant to the Stockholders
Agreement, (i) pay any dividends or make any other distributions on its
Capital Stock or any other interest or (ii) make or repay any loans or
advances to Connector, the Borrower or the parent of such subsidiary.
SECTION 6.07. Transactions with Affiliates. Sell or transfer any
property or assets to, or purchase or acquire any property or assets from, or
otherwise engage in any other transactions with, any of its Affiliates (other
than transactions between or among the Borrower and the wholly owned
Subsidiaries), except that (a) the Borrower or any Subsidiary may engage in
any of the foregoing transactions at prices and on terms and conditions not
less favorable to the Borrower or such Subsidiary than could be obtained on an
arm's-length basis from unrelated third parties, (b) Connector may pay,
pursuant to Section 4.1 of the Stockholders Agreement, (i) management fees to
Oak in an amount not to exceed $450,000 per annum and (ii) the reasonable out-
of-pocket and travel and lodging costs of certain of its directors in
connection with the attendance at meetings of the directors of Connector in
each Fiscal Year and (c) Connector, the Borrower or any other Subsidiary may
engage in transactions described in clauses (i) thru (iv) of Section 4.5.1 of
the Stockholders Agreement as in effect on the date hereof.
SECTION 6.08. Business of Borrower and Subsidiaries. Engage at any
time in any business or business activity other than the business currently
conducted by it and business activities reasonably incidental or related
thereto.
SECTION 6.09. Indebtedness and Other Material Agreements. (a)
Amend or modify, or grant any waiver or release under (i) any instruments,
agreements or documents evidencing or in connection with Indebtedness of
Connector, the Borrower and the other Subsidiaries, (ii) any agreements
material to the business of Connector, the Borrower and the other
Subsidiaries, or (iii) the Stockholders Agreement, except with respect to
amendments of or waivers under Section 4.3, 4.4, 4.5, 4.6, 4.7 or 4.9 of the
Stockholders Agreement and relating to the subject matters of such sections as
in effect on the date of the Agreement.
(b) Amend or modify in any manner adverse to the Lenders, or grant
any waiver or release under or terminate in any manner (if such action shall
be adverse to the Lenders) the certificate of incorporation or bylaws of
Connector, the Borrower or any other Subsidiary.
SECTION 6.10. Capital Expenditures. Permit the Borrower to make
any Capital Expenditures, on a consolidated basis, in any fiscal year to
exceed the amount set forth below:
<TABLE>
<CAPTION>
Fiscal Year: Capital Expenditures:
- - - - ----------- --------------------
<S> <C>
1995 $8,000,000
1996 $10,000,000
1997 $12,000,000
1998 $14,000,000
1999 $16,000,000
2000 $18,000,000
</TABLE>
SECTION 6.11. Leverage Ratio. Permit the Leverage Ratio of the
Borrower, prior to the Connector Purchase, and Consolidated Oak after the
Connector Purchase, to exceed, as of December 31, 1995, and as of the last day
of each fiscal quarter thereafter, 0.55 to 1.00.
SECTION 6.12. Interest Coverage Ratio. Permit the Interest
Coverage Ratio of the Borrower, prior to the Connector Purchase, and
Consolidated Oak, after the Connector Purchase, as of December 31, 1995, and
as of the last day of each fiscal quarter thereafter to be less than 3.0 to
1.0
SECTION 6.13. Fiscal Year. Cause its fiscal year to end on other
than December 31 of each year.
ARTICLE VII. EVENTS OF DEFAULT
In case of the happening of any of the following events ("Events of
Default"):
(a) any representation or warranty made or deemed made by any Loan
Party, other than any representation or warranty made with respect to Oak or
the Non-Connector Subsidiaries, in or in connection with any Loan Document or
the borrowings or issuances of Letters of Credit hereunder, or any
representation, warranty, statement or information, other than with respect to
Oak or the Non-Connector Subsidiaries, contained in any report, certificate,
financial statement or other instrument furnished by any Loan Party in
connection with or pursuant to any Loan Document, shall prove to have been
false or misleading in any material respect when so made, deemed made or
furnished;
(b) default shall be made in the payment of any principal of any
Loan or the reimbursement with respect to any L/C Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or by acceleration thereof or otherwise,
and, in the case of default in reimbursement, such default shall continue
unremedied for a period of one Business Day;
(c) default shall be made in the payment of any interest on any Loan
or any Fee or L/C Disbursement or any other amount (other than an amount
referred to in (b) above) due from any Loan Party under any Loan Document,
when and as the same shall become due and payable, and such default shall
continue unremedied for a period of three Business Days;
(d) default shall be made in the due observance or performance by
Connector, the Borrower or any other Subsidiary of any covenant, condition or
agreement contained in Section 5.01(a), 5.05 or 5.08 or in Article VI;
(e) default shall be made in the due observance or performance by
Connector, the Borrower or any other Subsidiary of any covenant, condition or
agreement contained in any Loan Document (other than those specified in (b),
(c) or (d) above) and such default shall continue unremedied for a period of
30 days after notice thereof from the Administrative Agent or any Lender to
the Borrower;
(f) Connector, the Borrower or any other Subsidiary shall (i) fail
to pay any principal or interest, regardless of amount, due in respect of any
Indebtedness in a principal amount in excess of $500,000, when and as the same
shall become due and payable, or (ii) fail to observe or perform any other
term, covenant, condition or agreement contained in any agreement or
instrument evidencing or governing any such Indebtedness if the effect of any
failure referred to in this clause (ii) is to cause, or to permit the holder
or holders of such Indebtedness or a trustee on its or their behalf (with or
without the giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity;
(g) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed in a court of competent jurisdiction seeking (i)
relief in respect of Connector, the Borrower or any other Subsidiary, or of a
substantial part of the property or assets of the Borrower or a Subsidiary,
under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal, state or foreign bankruptcy, insolvency,
receivership or similar law, (ii) the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Borrower or
any Subsidiary or for a substantial part of the property or assets of
Connector, the Borrower or a Subsidiary or (iii) the winding-up or liquidation
of Connector, the Borrower or any other Subsidiary; and such proceeding or
petition shall continue undismissed for 60 days or an order or decree
approving or ordering any of the foregoing shall be entered;
(h) Connector, the Borrower or any other Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking relief under
Title 11 of the United States Code, as now constituted or hereafter amended,
or any other Federal, state or foreign bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in a
timely and appropriate manner, any proceeding or the filing of any petition
described in (g) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for Connector, the Borrower or any other Subsidiary or for a substantial part
of the property or assets of Connector, the Borrower or any other Subsidiary,
(iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the
benefit of creditors, (vi) become unable, admit in writing its inability or
fail generally to pay its debts as they become due or (vii) take any action
for the purpose of effecting any of the foregoing;
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $1,000,000 shall be rendered against Connector, the
Borrower, any other Subsidiary or any combination thereof and the same shall
remain undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of Connector, the Borrower
or any other Subsidiary to enforce any such judgment;
(j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other such ERISA Events, could
reasonably be expected to result in liability of the Borrower and its ERISA
Affiliates in an aggregate amount exceeding $1,000,000 or requires payments
exceeding $500,000 in any year;
(k) (i) any Loan Document shall for any reason be asserted by Oak or
any of its subsidiaries not to be a legal, valid and binding obligation of any
Loan Party thereto, or (ii) any security interest purported to be created by
any Security Document shall cease to be, or shall be asserted by Oak or any of
its subsidiaries not to be, a valid, perfected, first priority (except as
otherwise expressly provided in this Agreement or such Security Document)
security interest in the securities, assets or properties covered thereby,
except to the extent that any such loss of perfection or priority results from
the failure of the Collateral Agent to maintain possession of certificates
representing securities pledged under the Pledge Agreement;
(l) (i) at the time of the Connector Purchase, there shall have
occurred and be continuing any Event of Default (as defined therein) under the
Oak Credit Agreement, or (ii) after the Connector Purchase, there shall occur
any Event of Default (as defined therein) under the Oak Credit Agreement;
(m) after the Connector Purchase, Oak or any Oak Guarantor shall
fail to be a Guarantor;
(n) after the Connector Purchase, unless the Permitted Release has
occurred, the Obligations are not secured by all of the Oak Collateral; or
(o) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the
Borrower described in paragraph (g) or (h) above), and at any time thereafter
during the continuance of such event, the Administrative Agent at the request
of the Required Lenders, shall, by notice to the Borrower, take either or both
of the following actions, at the same or different times: (i) terminate
forthwith the obligations of the Lenders to make Loans and of the Issuing
Banks to issue Letters of Credit hereunder and (ii) declare the Loans then
outstanding to be forthwith due and payable in whole or in part, whereupon the
principal of the Loans so declared to be due and payable, together with
accrued interest thereon and any unpaid accrued Fees and all other liabilities
of the Borrower accrued hereunder and under any other Loan Document, shall
become forthwith due and payable, without presentment, demand, protest or any
other notice of any kind, all of which are hereby expressly waived by the
Borrower, anything contained herein or in any other Loan Document to the
contrary notwithstanding; and in any event with respect to the Borrower
described in paragraph (g) or (h) above, the obligations of the Lenders to
make Loans and of the Issuing Banks to issue Letters of Credit hereunder shall
automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and any unpaid accrued Fees and all
other liabilities of the Borrower accrued hereunder and under any other Loan
Document, 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 the Borrower, anything contained herein or in any other
Loan Document to the contrary notwithstanding.
ARTICLE VIII. THE ADMINISTRATIVE AGENT AND THE COLLATERAL AGENT
In order to expedite the transactions contemplated by this
Agreement, Chemical Bank is hereby appointed to act as Administrative Agent
and Collateral Agent on behalf of the Lenders and the Issuing Banks (for
purposes of this Article VIII, the Administrative Agent and the Collateral
Agent are referred to collectively as the "Agents"). Each of the Lenders and
each assignee of any such Lender, hereby irrevocably authorizes the Agents to
take such actions on behalf of such Lender or assignee or such Issuing Bank
and to exercise such powers as are specifically delegated to the Agents by the
terms and provisions hereof and of the other Loan Documents, together with
such actions and powers as are reasonably incidental thereto. The
Administrative Agent is hereby expressly authorized by the Lenders and the
Issuing Banks, without hereby limiting any implied authority, (a) to receive
on behalf of the Lenders and the Issuing Banks all payments of principal of
and interest on the Loans, all payments in respect of L/C Disbursements and
all other amounts due to the Lenders hereunder, and promptly to distribute to
each Lender or each Issuing Bank its proper share of each payment so received;
(b) to give notice on behalf of each of the Lenders to the Borrower of any
Event of Default specified in this Agreement of which the Administrative Agent
has actual knowledge acquired in connection with its agency hereunder; and (c)
to distribute to each Lender copies of all notices, financial statements and
other materials delivered by the Borrower pursuant to this Agreement as
received by the Administrative Agent. Without limiting the generality of the
foregoing, the Agents are hereby expressly authorized to execute any and all
documents (including releases) with respect to the Collateral and the rights
of the Secured Parties with respect thereto, as contemplated by and in
accordance with the provisions of this Agreement and the Security Documents.
Neither the Agents nor any of their respective directors, officers,
employees or agents shall be liable as such for any action taken or omitted by
any of them except for its or his own gross negligence or wilful misconduct,
or be responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by
the Borrower or any other Loan Party of any of the terms, conditions,
covenants or agreements contained in any Loan Document. The Agents shall not
be responsible to the Lenders for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement or any other Loan Documents,
instruments or agreements. The Agents shall in all cases be fully protected
in acting, or refraining from acting, in accordance with written instructions
signed by the Required Lenders and, except as otherwise specifically provided
herein, such instructions and any action or inaction pursuant thereto shall be
binding on all the Lenders. Each Agent shall, in the absence of knowledge to
the contrary, be entitled to rely on any instrument or document believed by it
in good faith to be genuine and correct and to have been signed or sent by the
proper person or persons. Neither the Agents nor any of their respective
directors, officers, employees or agents shall have any responsibility to the
Borrower or any other Loan Party on account of the failure of or delay in
performance or breach by any Lender or any Issuing Bank of any of its
obligations hereunder or to any Lender or any Issuing Bank on account of the
failure of or delay in performance or breach by any other Lender or any other
Issuing Bank or the Borrower or any other Loan Party of any of their
respective obligations hereunder or under any other Loan Document or in
connection herewith or therewith. Each of the Agents may execute any and all
duties hereunder by or through agents or employees and shall be entitled to
rely upon the advice of legal counsel selected by it with respect to all
matters arising hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of such counsel.
The Lenders hereby acknowledge that neither Agent shall be under any
duty to take any discretionary action permitted to be taken by it pursuant to
the provisions of this Agreement unless it shall be requested in writing to do
so by the Required Lenders.
Subject to the appointment and acceptance of a successor Agent as
provided below, either Agent may resign at any time by notifying the Lenders
and the Borrower. Upon any such resignation, the Required Lenders shall have
the right to appoint a successor. If no successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may, on behalf of the Lenders, appoint a successor Agent
which shall be a bank with an office in New York, New York, having a combined
capital and surplus of at least $500,000,000 or an Affiliate of any such bank.
Upon the acceptance of any appointment as Agent hereunder by a successor bank,
such successor shall succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent and the retiring Agent shall be
discharged from its duties and obligations hereunder. After the Agent's
resignation hereunder, the provisions of this Article and Section 9.05 shall
continue in effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Agent.
With respect to the Loans made by it hereunder, each Agent in its
individual capacity and not as Agent shall have the same rights and powers as
any other Lender and may exercise the same as though it were not an Agent, and
the Agents and their Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any Subsidiary
or other Affiliate thereof as if it were not an Agent.
Each Lender agrees (a) to reimburse the Agents, on demand, in the
amount of its pro rata share (based on its Commitments hereunder) of any
expenses incurred for the benefit of the Lenders by the Agents, including
counsel fees and compensation of agents and employees paid for services
rendered on behalf of the Lenders, that shall not have been reimbursed by the
Borrower and (b) to indemnify and hold harmless each Agent and any of its
directors, officers, employees or agents, on demand, in the amount of such pro
rata share, from and against any and all liabilities, taxes, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by or asserted against it in its capacity as Agent or any of them in
any way relating to or arising out of this Agreement or any other Loan
Document or any action taken or omitted by it or any of them under this
Agreement or any other Loan Document, to the extent the same shall not have
been reimbursed by the Borrower; provided, however, that no Lender shall be
liable to an Agent or any such other indemnified person for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross negligence or
wilful misconduct of such Agent or any of its directors, officers, employees
or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agents or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender
and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action
under or based upon this Agreement or any other Loan Document, any related
agreement or any document furnished hereunder or thereunder.
ARTICLE IX. MISCELLANEOUS
SECTION 9.01. Notices. Notices and other communications provided
for herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed by certified or registered mail or sent by telecopy,
as follows:
(a) if to Connector or the Borrower, to it at Bay Colony Corporate
Center, 1000 Winter Street, Waltham, MA 02154, Attention of Pamela F. Lenehan
(Telecopy No. (617) 890-8585);
(b) if to the Administrative Agent, to Chemical Bank Agency
Services, Grand Central Tower, 140 East 45th Street, New York, New York 10017,
Attention of Sandra Miklave (Telecopy No. (212) 622-0005), with a copy to
Chemical Bank, 270 Park Avenue, New York, New York 10017, Attention of Ann
Kerns (Telecopy No. (212) 270-2625); and
(c) if to a Lender, to it at its address (or telecopy number) set
forth in Schedule 2.01 or in the Assignment and Acceptance pursuant to which
such Lender shall have become a party hereto.
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement shall be deemed to have been given on
the date of receipt if delivered by hand or overnight courier service or sent
by telecopy or on the date five Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 9.01 or in accordance
with the latest unrevoked direction from such party given in accordance with
this Section 9.01.
SECTION 9.02. Survival of Agreement. All covenants, agreements,
representations and warranties made by Connector and the Borrower herein and
in the certificates or other instruments prepared or delivered in connection
with or pursuant to this Agreement or any other Loan Document shall be
considered to have been relied upon by the Lenders and the Issuing Banks and
shall survive the making by the Lenders of the Loans and the issuance of
Letters of Credit by the Issuing Banks, regardless of any investigation made
by the Lenders or the Issuing Banks or on their behalf, and shall continue in
full force and effect as long as the principal of or any accrued interest on
any Loan or any Fee or any other amount payable under this Agreement or any
other Loan Document is outstanding and unpaid or any Letter of Credit is
outstanding and so long as the Commitments have not been terminated. The
provisions of Sections 2.14, 2.16, 2.20 and 9.05 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the
expiration of any Letter of Credit, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent, any Lender or any Issuing Bank.
SECTION 9.03. Binding Effect. This Agreement shall become
effective when it shall have been executed by Connector, the Borrower and the
Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted successors
and assigns.
SECTION 9.04. Successors and Assigns. (a) Whenever in this
Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the permitted successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of Connector, the Borrower,
the Administrative Agent, the Issuing Banks or the Lenders that are contained
in this Agreement shall bind and inure to the benefit of their respective
successors and assigns.
(b) Each Lender may assign to one or more assignees all or a
portion of its interests, rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans at the time owing
to it); provided, however, that (i) except in the case of an assignment to a
Lender or an Affiliate of such Lender, (x) the Borrower and the Administrative
Agent (and, in the case of any assignment of a Revolving Credit Commitment,
each Issuing Bank) must give their prior written consent to such assignment
(which consent shall not be unreasonably withheld) and (y) the amount of the
Commitment of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Acceptance with respect to such assignment
is delivered to the Administrative Agent) shall not be less than $10,000,000
(or, if less, the entire remaining amount of such Lender's Commitment), (ii)
each such assignment shall be the same percentage of all the assigning
Lender's rights and obligations under this Agreement and the Oak Credit
Agreement and all of the Commitments and Loans hereunder shall be assigned pro
rata, (iii) the parties to each such assignment shall execute and deliver to
the Administrative Agent an Assignment and Acceptance, together with a
processing and recordation fee of $3,500 and (iv) the assignee, if it shall
not be a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire. Upon acceptance and recording pursuant to paragraph (e) below,
from and after the effective date specified in each Assignment and Acceptance,
which effective date shall be at least five Business Days after the execution
thereof, (A) the assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement and (B) the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.14, 2.16, 2.20 and 9.05,
as well as to any Fees accrued for its account and not yet paid).
(c) By executing and delivering an Assignment and Acceptance, the
assigning Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as follows:
(i) such assigning Lender warrants that it is the legal and beneficial owner
of the interest being assigned thereby free and clear of any adverse claim and
that its Term Loan Commitment and Revolving Credit Commitment, and the
outstanding balances of its Term Loans and Revolving Loans, in each case
without giving effect to assignments thereof which have not become effective,
are as set forth in such Assignment and Acceptance, (ii) except as set forth
in (i) above, such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto, or the financial condition of Connector,
the Borrower or any other Subsidiary or the performance or observance by
Connector, the Borrower or any other Subsidiary of any of its obligations
under this Agreement, any other Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such assignee represents and
warrants that it is legally authorized to enter into such Assignment and
Acceptance; (iv) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial statements
referred to in Section 3.05 or delivered pursuant to Section 5.04 and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (v)
such assignee will independently and without reliance upon the Administrative
Agent, the Collateral Agent, such assigning Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under this Agreement; (vi) such assignee appoints and authorizes the
Administrative Agent and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement as are delegated
to the Administrative Agent and the Collateral Agent, respectively, by the
terms hereof, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all the obligations which by the terms of this Agreement are required to
be performed by it as a Lender.
(d) The Administrative Agent, acting for this purpose as an agent
of the Borrower, shall maintain at one of its offices in The City of New York
a copy of each Assignment and Acceptance delivered to it and a register for
the recordation of the names and addresses of the Lenders, and the Commitment
of, and principal amount of the Loans owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the Register
shall be conclusive and the Borrower, the Administrative Agent, the Issuing
Banks, the Collateral Agent and the Lenders may treat each person whose name
is recorded in the Register pursuant to the terms hereof as a Lender hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower, any Issuing
Bank, the Collateral Agent and any Lender, at any reasonable time and from
time to time upon reasonable prior notice.
(e) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative
Questionnaire completed in respect of the assignee (unless the assignee shall
already be a Lender hereunder), the processing and recordation fee referred to
in paragraph (b) above and, if required, the written consent of the Borrower,
each Issuing Bank and the Administrative Agent to such assignment, the
Administrative Agent shall (i) accept such Assignment and Acceptance, (ii)
record the information contained therein in the Register and (iii) give prompt
notice thereof to the Lenders and the Issuing Bank. No assignment shall be
effective unless it has been recorded in the Register as provided in this
paragraph (e).
(f) Each Lender may without the consent of Connector, the Borrower,
any Issuing Bank or the Administrative Agent sell participations to one or
more banks or other entities in all or a portion of its rights and obligations
under this 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 Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the participating banks or other entities shall be entitled
to the benefit of the cost protection provisions contained in Sections 2.14,
2.16 and 2.20 to the same extent as if they were Lenders (but the liability of
the Borrower under such Sections shall not be greater than its liability
thereunder to the selling Lender) and (iv) Connector, the Borrower, the
Administrative Agent, the Issuing Banks and the Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement, and such Lender shall retain the sole
right to enforce the obligations of the Borrower relating to the Loans or L/C
Disbursements and to approve any amendment, modification or waiver of any
provision of this Agreement (other than amendments, modifications or waivers
decreasing any fees payable hereunder or the amount of principal of or the
rate at which interest is payable on the Loans, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans
or changing or extending the Commitments).
(g) Any Lender or participant may, in connection with any
assignment or participation or proposed assignment or participation pursuant
to this Section 9.04, disclose to the assignee or participant or proposed
assignee or participant any information relating to Connector or the Borrower
furnished to such Lender by or on behalf of Connector or the Borrower;
provided, however, that, prior to any such disclosure of information
designated by Connector or the Borrower as confidential, each such assignee or
participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary
exceptions) to preserve the confidentiality of such confidential information
on terms no less restrictive than those applicable to the Lenders pursuant to
Section 9.16.
(h) Any Lender may at any time assign all or any portion of its
rights under this Agreement to a Federal Reserve Bank to secure extensions of
credit by such Federal Reserve Bank to such Lender; provided, however, that no
such assignment shall release a Lender from any of its obligations hereunder
or substitute any such Bank for such Lender as a party hereto. In order to
facilitate such an assignment to a Federal Reserve Bank, the Borrower shall,
at the request of the assigning Lender, duly execute and deliver to the
assigning Lender a promissory note or notes evidencing the Loans made to the
Borrower by the assigning Lender hereunder.
(i) Connector or the Borrower shall not assign or delegate any of
its rights or duties hereunder without the prior written consent of the
Administrative Agent, each Issuing Bank and each Lender, and any attempted
assignment without such consent shall be null and void.
(j) In the event that Standard & Poor's Ratings Group, Moody's
Investors Service, Inc., and Thompson's BankWatch (or InsuranceWatch Ratings
Service, in the case of Lenders that are insurance companies (or Best's
Insurance Reports, if such insurance company is not rated by InsuranceWatch
Ratings Service)) shall, after the date that any Lender becomes a Lender,
downgrade the long-term certificate deposit ratings of such Lender, and the
resulting ratings shall be below BBB-, Baa3 and C (or BB, in the case of a
Lender that is an insurance company (or B, in the case of an insurance company
not rated by InsuranceWatch Ratings Service)), then any Issuing Bank shall
have the right, but not the obligation, at its own expense, upon notice to
such Lender and the Administrative Agent, to replace (or to request the
Borrower to use its reasonable efforts to replace) such Lender with an
assignee (in accordance with and subject to the restrictions contained in
paragraph (b) above), and such Lender hereby agrees to transfer and assign
without recourse (in accordance with and subject to the restrictions contained
in paragraph (b) above) all its interests, rights and obligations in respect
of its Revolving Credit Commitment to such assignee; provided, however, that
(i) no such assignment shall conflict with any law, rule and regulation or
order of any Governmental Authority and (ii) such Issuing Bank or such
assignee, as the case may be, shall pay to such Lender in immediately
available funds on the date of such assignment the principal of and interest
accrued to the date of payment on the Loans made by such Lender hereunder and
all other amounts accrued for such Lender's account or owned to it hereunder.
SECTION 9.05. Expenses; Indemnity. (a) The Borrower agrees to pay
all reasonable out-of-pocket expenses incurred by the Administrative Agent,
the Collateral Agent and the Issuing Banks in connection with any amendments,
modifications or waivers of the provisions hereof or of any Loan Document
(whether or not the transactions thereby contemplated shall be consummated) or
incurred by the Administrative Agent, the Collateral Agent or any Lender in
connection with the enforcement or protection of its rights in connection with
this Agreement and the other Loan Documents or in connection with the Loans
made or Letters of Credit issued hereunder, including the reasonable fees,
charges and disbursements of Cravath, Swaine & Moore, counsel for the
Administrative Agent and the Collateral Agent, and, in connection with any
such enforcement or protection, the reasonable fees, charges and disbursements
of any other counsel for the Administrative Agent, the Collateral Agent or any
Lender.
(b) The Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent, each Lender and each Issuing Bank, each Affiliate of any of
the foregoing persons and each of their respective directors, officers,
employees and agents (each such person being called an "Indemnitee") against,
and to hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee
arising out of, in any way connected with, or as a result of (i) the execution
or delivery of this Agreement or any other Loan Document or any agreement or
instrument contemplated thereby, the performance by the parties thereto of
their respective obligations thereunder or the consummation of the
Transactions and the other transactions contemplated thereby, but in no event
with respect to the Acquisition or the Oak Credit Agreement, (ii) the use of
the proceeds of the Loans or issuance of Letters of Credit, (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto, or (iv) any actual or
alleged presence or Release of Hazardous Materials on any property owned or
operated by Connector, the Borrower or any of the other Subsidiaries, or any
Environmental Claim related in any way to Connector, the Borrower or the other
Subsidiaries; provided, however, that such indemnity shall not, as to any
Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses resulted from the gross negligence or wilful
misconduct of such Indemnitee.
(c) The provisions of this Section 9.05 shall remain operative and
in full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the expiration of the Commitments, the
expiration of any Letter of Credit, the invalidity or unenforceability of any
term or provision of this Agreement or any other Loan Document, or any
investigation made by or on behalf of the Administrative Agent, the Collateral
Agent, any Lender or any Issuing Bank. All amounts due under this Section
9.05 shall be payable on written demand therefor.
SECTION 9.06. Right of Setoff. Subject to Section 2.18, if an
Event of Default shall have occurred and be continuing, each Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement and other Loan Documents held by such Lender,
irrespective of whether or not such Lender shall have made any demand under
this Agreement or such other Loan Document and although such obligations may
be unmatured. The rights of each Lender under this Section are in addition to
other rights and remedies (including other rights of setoff) which such Lender
may have.
SECTION 9.07. Applicable Law. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS (OTHER THAN LETTERS OF CREDIT AND AS EXPRESSLY SET FORTH IN OTHER
LOAN DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK. EACH LETTER OF CREDIT SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED IN ACCORDANCE WITH, THE LAWS OR RULES DESIGNATED IN SUCH
LETTER OF CREDIT, OR IF NO SUCH LAWS OR RULES ARE DESIGNATED, THE UNIFORM
CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL
CHAMBER OF COMMERCE, PUBLICATION NO. 500 (THE "UNIFORM CUSTOMS") AND, AS TO
MATTERS NOT GOVERNED BY THE UNIFORM CUSTOMS, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 9.08. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent, the Collateral Agent, any Lender or any Issuing Bank in
exercising any power or right hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the
Administrative Agent, the Collateral Agent, the Issuing Banks and the Lenders
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of this Agreement or any other Loan Document or consent to
any departure by Connector or the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) below, and then
such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No notice or demand on Connector or the
Borrower in any case shall entitle Connector or the Borrower to any other or
further notice or demand in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by Connector, the Borrower and the Required Lenders; provided,
however, that no such agreement shall (i) decrease the principal amount of, or
extend the maturity of any Loan or any scheduled principal payment date or
date for the payment of any interest on any Loan or any date for reimbursement
of an L/C Disbursement, or waive or excuse any such payment or any part
thereof, or decrease the rate of interest on any Loan or L/C Disbursement,
without the prior written consent of each Lender directly affected thereby,
(ii) change or extend the Commitment or decrease the Commitment Fees of any
Lender without the prior written consent of such Lender, (iii) amend or modify
the provisions of Section 2.17, 2.18 or 9.04(i), the provisions of this
Section 9.08, the definition of the term "Required Lenders" or release all or
any substantial part of the Collateral, other than the Permitted Release, or
release any Guarantor from the Guarantee Agreement unless all or substantiall
all of the Capital Stock of such Guarantor is sold in a transaction permitted
by this Agreement, in each case without the prior written consent of each
Lender or (iv) amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Collateral Agent or any Issuing Bank hereunder or
under any other Loan Document without the prior written consent of the
Administrative Agent, the Collateral Agent or each Issuing Bank.
SECTION 9.09. Interest Rate Limitation. Notwithstanding anything
herein to the contrary, if at any time the interest rate applicable to any
Loan or participation in any L/C Disbursement, together with all fees, charges
and other amounts which are treated as interest on such Loan or participation
in such L/C Disbursement under applicable law (collectively the "Charges"),
shall exceed the maximum lawful rate (the "Maximum Rate") which may be
contracted for, charged, taken, received or reserved by the Lender holding
such Loan or participation in accordance with applicable law, the rate of
interest payable in respect of such Loan or participation hereunder, together
with all Charges payable in respect thereof, shall be limited to the Maximum
Rate and, to the extent lawful, the interest and Charges that would have been
payable in respect of such Loan or participation but were not payable as a
result of the operation of this Section shall be cumulated and the interest
and Charges payable to such Lender in respect of other Loans or participations
or periods shall be increased (but not above the Maximum Rate therefor) until
such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such
Lender.
SECTION 9.10. Entire Agreement. This Agreement, the Fee Letter and
the other Loan Documents constitute the entire contract between the parties
relative to the subject matter hereof. Any other previous agreement among the
parties with respect to the subject matter hereof is superseded by this
Agreement and the other Loan Documents. Nothing in this Agreement or in the
other Loan Documents, expressed or implied, is intended to confer upon any
party other than the parties hereto and thereto any rights, remedies,
obligations or liabilities under or by reason of this Agreement or the other
Loan Documents.
SECTION 9.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO
HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS,
AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS Section 9.11.
SECTION 9.12. Severability. In the event any one or more of the
provisions contained in this Agreement or in any other Loan Document should be
held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 9.13. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts), each
of which shall constitute an original but all of which when taken together
shall constitute a single contract, and shall become effective as provided in
Section 9.03. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Agreement.
SECTION 9.14. Headings. Article and Section headings and the Table
of Contents used herein are for convenience of reference only, are not part of
this Agreement and are not to affect the construction of, or to be taken into
consideration in interpreting, this Agreement.
SECTION 9.15. Jurisdiction; Consent to Service of Process. (a)
Each of Connector and the Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or Federal court of the United States of America sitting
in New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims
in respect of any such action or proceeding may be heard and determined in
such New York State or, to the extent permitted by law, in such Federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that the Administrative Agent, the Collateral
Agent, any Issuing Bank or any Lender may otherwise have to bring any action
or proceeding relating to this Agreement or the other Loan Documents against
Connector or the Borrower or its properties in the courts of any jurisdiction.
(b) Each of Connector and the Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or the other Loan Documents in any New York State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve
process in any other manner permitted by law.
SECTION 9.16. Confidentiality. The Administrative Agent, the
Collateral Agent, each Issuing Bank and each of the Lenders agrees to keep
confidential (and to use its best efforts to cause its respective agents and
representatives to keep confidential) the Information (as defined below) and
all copies thereof, extracts therefrom and analyses or other materials based
thereon, except that the Administrative Agent, the Collateral Agent, each
Issuing Bank or any Lender shall be permitted to disclose Information (a) to
such of its respective officers, directors, employees, agents, affiliates and
representatives as need to know such Information, (b) to the extent requested
by any regulatory authority, (c) to the extent otherwise required by
applicable laws and regulations or by any subpoena or similar legal process,
(d) in connection with any suit, action or proceeding relating to the
enforcement of its rights hereunder or under the other Loan Documents or (e)
to the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section 9.16 or (ii) becomes available to the
Administrative Agent, each Issuing Bank, any Lender or the Collateral Agent on
a nonconfidential basis from a source other than Connector or the Borrower.
For the purposes of this Section, "Information" shall mean all financial
statements, certificates, reports, agreements and information (including all
analyses, compilations and studies prepared by the Administrative Agent, the
Collateral Agent, each Issuing Bank or any Lender based on any of the
foregoing) that are received from Connector or the Borrower and related to
Connector or the Borrower, any shareholder of Connector or the Borrower or any
employee, customer or supplier of Connector or the Borrower, other than any of
the foregoing that were available to the Administrative Agent, the Collateral
Agent, each Issuing Bank or any Lender on a nonconfidential basis prior to its
disclosure thereto by Connector or the Borrower, and which are in the case of
Information provided after the date hereof, clearly
identified at the time of delivery as confidential. The provisions of this
Section 9.16 shall remain operative and in full force and effect regardless of
the expiration and term of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and
year first above written.
CONNECTOR HOLDING COMPANY,
by /S/ THOMAS F. SHEEHAN
NAME: THOMAS F. SHEEHAN
TITLE: VICE PRESIDENT AND TREASURER
GILBERT ENGINEERING CO.,
by /S/ THOMAS F. SHEEHAN
NAME: THOMAS F. SHEEHAN
TITLE: VICE PRESIDENT
CHEMICAL BANK, individually
and as Administrative Agent,
Collateral Agent and Issuing Bank,
by /S/ EDWARD W. DEVINE
NAME: EDWARD W. DEVINE
TITLE: MANAGING DIRECTOR
ABN AMRO BANK N.V., Boston Branch,
by /S/ JAMES E. DAVIS
NAME: JAMES E. DAVIS
TITLE: VICE PRESIDENT
by /S/ BRIAN M. HORGAN
NAME: BRIAN M. HORGAN
TITLE: ASSISTANT VICE PRESIDENT
BHF-BANK AG,
by /S/ JOHN SYKES
NAME: JOHN SYKES
TITLE: ASSISTANT VICE PRESIDENT
by /S/ DAVID FRAENKEL
NAME: DAVID FRAENKEL
TITLE: VICE PRESIDENT
THE CHASE MANHATTAN BANK
(National Association),
by /S/ KARIM T. ASSEF
NAME: KARIM T. ASSEF
TITLE: VICE PRESIDENT
CREDIT LYONNAIS CAYMAN ISLAND BRANCH,
by /S/ ROBERT IVOSEVICH
NAME: ROBERT IVOSEVICH
TITLE: AUTHORIZED SIGNATURE
CREDIT LYONNAIS NEW YORK BRANCH,
by /S/ ROBERT IVOSEVICH
NAME: ROBERT IVOSEVICH
TITLE: SENIOR VICE PRESIDENT
THE FIRST NATIONAL BANK OF BOSTON,
by /S/ THOMAS F. FARLEY, JR.
NAME: THOMAS F. FARLEY, JR.
TITLE: DIRECTOR
FIRST UNION NATIONAL BANK OF
NORTH CAROLINA,
by /S/ MARK M. HARDEN
NAME: MARK M. HARDEN
TITLE: VICE PRESIDENT
FLEET BANK OF MASSACHUSETTS, N.A.,
by /S/ ALLISON READ
NAME: ALLISON READ
TITLE: SENIOR VICE PRESIDENT
LTCB TRUST CO.,
by /S/ JOHN J. SULLIVAN
NAME: JOHN J. SULLIVAN
TITLE: EXECUTIVE VICE PRESIDENT
MELLON BANK, N.A.,
by /S/ ROBERT H. SUMMERSGILL
NAME: ROBERT H. SUMMERSGILL
TITLE: FIRST VICE PRESIDENT
THE MITSUBISHI BANK, LIMITED,
NEW YORK BRANCH,
by /S/ DAVID A. KELSON
NAME: DAVID A. KELSON
TITLE: VICE PRESIDENT
NATIONSBANK OF TEXAS, N.A.,
by /S/ BRENT W. MELLOW
NAME: BRENT W. MELLOW
TITLE: VICE PRESIDENT
NBD BANK,
by /S/ KARL I. BELL
NAME: KARL I. BELL
TITLE: VICE PRESIDENT
THE ROYAL BANK OF SCOTLAND
PLC-NEW YORK BRANCH,
by /S/ RUSSELL M. GIBSON
NAME: RUSSELL M. GIBSON
TITLE: VICE PRESIDENT & DEPUTY MANAGER
NORWEST BANK ARIZONA, NATIONAL
ASSOCIATION,
by /S/ DAN McKIRGAN
NAME: DAN McKIRGAN
TITLE: VICE PRESIDENT
THE TORONTO DOMINION BANK,
by /S/ NEVA NESBITT
NAME: NEVA NESBITT
TITLE: MGR. CR ADMIN.
ACCOUNTANTS' CONSENT
The Board of Directors
Lasertron, Inc.
We consent to the inclusion of our report dated March 22, 1995, with
respect to the consolidated balance sheets of Lasertron, Inc. and
subsidiaries as of January 31, 1995 and 1994, and the related
consolidated statements of income, stockholders' equity, and cash flows
for each of the years in the three-year period ended January 31, 1995,
which report appears in the Form 8-K of Oak Industries Inc. dated
September 14, 1995.
KPMG PEAT MARWICK LLP
Boston, Massachusetts
September 14, 1995
