UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[X] Quarterly report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the quarterly period ended March 31, 1998
or
[ ] Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from __________ to ____________
Commission file number 0-14787
WATTS INDUSTRIES, INC.
(Exact name of registrant as specified in its charter)
Delaware 04-2916536
(State of incorporation) (I.R.S. Employer Identification No.)
815 Chestnut Street, North Andover, MA 01845
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (978) 688-1811
Indicate by check mark whether the Registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the Registrant was required to file
such reports), and (2) has been subject to such filing requirements
for the past 90 days. Yes X No
Indicate the number of shares outstanding of each of the
issuer's classes of common stock, as of the latest practicable
date.
Class Outstanding at April 30, 1998
Class A Common, $.10 par value 16,756,027
Class B Common, $.10 par value 10,296,827
WATTS INDUSTRIES, INC. AND SUBSIDIARIES
INDEX
Part I. Financial Information Page #
Item 1. Financial Statements
Condensed Consolidated Balance Sheets at
March 31, 1998 and June 30, 1997 3
Condensed Consolidated Statements of
Operations for the Three Months Ended
March 31, 1998 and March 31, 1997 4
Condensed Consolidated Statements of
Operations for the Nine Months Ended
March 31, 1998 and March 31, 1997 5
Condensed Consolidated Statements of Cash
Flows for the Nine Months Ended
March 31, 1998 and March 31, 1997 6
Notes to Condensed Consolidated Financial
Statements 7-10
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations 11-15
Part II. Other Information
Item 1. Legal Proceedings 15-17
Item 6. Exhibits and Reports on Form 8-K 17
Signatures 18
Exhibit Index 19
Exhibit 27.1 - Financial Data Schedule-March 31, 1998 20
Exhibit 27.2 - Restated Financial Data Schedule-March
31, 1997 21
Exhibit 27.3 - Restated Financial Data Schedule-
September 30, 1996 22
PART I. FINANCIAL INFORMATION
- ------------------------------
ITEM 1. FINANCIAL STATEMENTS
----------------------
WATTS INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED BALANCE SHEETS
(Dollars in thousands)
(Unaudited) (Audited)
Mar. 31, June 30,
1998 1997
--------- ---------
ASSETS
CURRENT ASSETS:
Cash and cash equivalents $ 9,954 $ 13,904
Short-term investments 257 518
Trade accounts receivable, less allowance
for doubtful accounts of $8,592 at March 31, 1998
and $7,945 at June 30, 1997 140,392 121,349
Inventories:
Raw materials 64,306 64,261
Work in process 37,216 26,030
Finished goods 90,502 80,926
--------- ---------
Total Inventories 192,024 171,217
Prepaid expenses and other assets 13,169 13,087
Deferred income taxes 21,616 22,480
Net assets held for sale 2,046 3,037
--------- ---------
Total Current Assets 379,458 345,592
--------- ---------
PROPERTY, PLANT AND EQUIPMENT:
Property, plant and equipment, at cost 298,996 281,231
Accumulated depreciation (140,609) (128,537)
--------- ---------
Property, plant and equipment, net 158,387 152,694
--------- ---------
OTHER ASSETS:
Goodwill, net of accumulated amortization of $15,799 at
March 31, 1998 and $13,484 at June 30, 1997 119,985 110,928
Other 13,769 12,869
--------- ---------
TOTAL ASSETS $ 671,599 $ 622,083
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Accounts payable $ 46,459 $ 48,896
Accrued expenses and other liabilities 59,351 53,738
Accrued compensation and benefits 15,519 15,834
Income taxes payable 7,911 -
Current portion of long-term debt 1,583 2,422
--------- ---------
Total Current Liabilities 130,823 120,890
--------- ---------
LONG-TERM DEBT, NET OF CURRENT PORTION 133,006 125,937
DEFERRED INCOME TAXES 16,365 16,675
OTHER NONCURRENT LIABILITIES 12,037 13,796
MINORITY INTEREST 11,787 11,146
STOCKHOLDERS' EQUITY:
Preferred Stock,$.10 par value; 5,000,000 shares
authorized; no shares issued or outstanding - -
Class A Common Stock, $.10 par value; 1 vote per share;
80,000,000 shares authorized; issued and outstanding:
16,451,077 shares at March 31, 1998 and 15,797,460
shares at June 30, 1997 1,645 1,580
Class B Common Stock, $.10 par value; 10 votes per share;
25,000,000 shares authorized; issued and outstanding:
10,701,777 at March 31, 1998 and 11,215,627
shares at June 30, 1997 1,070 1,121
Additional paid-in capital 47,598 44,643
Retained earnings 327,834 293,170
Cumulative translation adjustment (10,566) (6,875)
--------- ---------
Total Stockholders' Equity 367,581 333,639
--------- ---------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 671,599 $ 622,083
========= =========
See accompanying notes to condensed consolidated financial statements.
WATTS INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Dollars in thousands, except per share information)
(Unaudited)
Three Months Ended
--------------------
Mar. 31, Mar. 31,
1998 1997
--------- ---------
Net sales $ 183,615 $ 184,191
Cost of goods sold 119,381 120,461
--------- ---------
GROSS PROFIT 64,234 63,730
Selling, general & administrative expenses 40,835 40,983
--------- ---------
OPERATING INCOME 23,399 22,747
--------- ---------
Other (income) expense:
Interest income (659) (125)
Interest expense 2,677 2,715
Other, net (183) (280)
--------- ---------
1,835 2,310
--------- ---------
INCOME BEFORE INCOME TAXES 21,564 20,437
Provision for income taxes 7,523 7,548
--------- ---------
NET INCOME $ 14,041 $ 12,889
========= =========
Income per common share :
Basic $ 0.52 $ 0.48
========= =========
Diluted $ 0.51 $ 0.47
========= =========
Dividends per common share $ 0.0875 $ 0.0775
========= =========
See accompanying notes to condensed consolidated financial statements.
WATTS INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(Dollars in thousands, except per share information)
(Unaudited)
Nine Months Ended
--------------------
Mar. 31, Mar. 31,
1998 1997
--------- ---------
Net sales $ 542,273 $ 534,419
Cost of goods sold 350,424 350,181
--------- ---------
GROSS PROFIT 191,849 184,238
Selling, general & administrative expenses 121,575 118,087
--------- ---------
OPERATING INCOME 70,274 66,151
--------- ---------
Other (income) expense:
Interest income (1,243) (397)
Interest expense 7,653 7,938
Other, net 778 171
--------- ---------
7,188 7,712
--------- ---------
INCOME FROM CONTINUING OPERATIONS
BEFORE INCOME TAXES 63,086 58,439
Provision for income taxes 21,816 21,454
--------- ---------
INCOME FROM CONTINUING OPERATIONS 41,270 36,985
Income from discontinued operations, net of taxes - 79
Gain on disposal of discontinued operations,
net of taxes - 3,208
--------- ---------
NET INCOME $ 41,270 $ 40,272
========= =========
Income per common share :
Basic
Continuing operations $ 1.52 $ 1.36
Discontinued operations - -
Gain on disposal of discontinued operations - 0.12
--------- ---------
Net Income $ 1.52 $ 1.48
========= =========
Diluted
Continuing operations $ 1.51 $ 1.35
Discontinued operations - -
Gain on disposal of discontinued operations - 0.12
--------- ---------
Net Income $ 1.51 $ 1.47
========= =========
Dividends per common share $ 0.2425 $ 0.2175
========= =========
See accompanying notes to condensed consolidated financial statements.
WATTS INDUSTRIES, INC. AND SUBSIDIARIES
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
(Unaudited)
Nine Months Ended
--------------------
Mar. 31, Mar. 31,
1998 1997
--------- ---------
OPERATING ACTIVITIES
Income from continuing operations $ 41,270 $ 36,985
Adjustments to reconcile net income from continuing operations
to net cash provided by continuing operating activities:
Restructuring payments (1,523) (4,335)
Depreciation and amortization 17,136 17,026
Deferred income taxes 533 1,080
Gain on disposal of assets (1,170) (561)
Equity in undistributed earnings of affiliates (77) -
Changes in operating assets and liabilities, net of effects
from acquisitions and dispositions:
Accounts receivable (18,594) (16,966)
Inventories (16,070) (2,612)
Prepaid expenses and other assets (1,225) (2,621)
Accounts payable, accrued expenses and
other liabilities 10,980 (3,369)
--------- ---------
Net cash provided by continuing operations 31,260 24,627
Net cash provided by discontinued operations - 653
--------- ---------
NET CASH PROVIDED BY OPERATING ACTIVITIES 31,260 25,280
--------- ---------
INVESTING ACTIVITIES
Additions to property, plant and equipment (21,927) (21,075)
Proceeds from sale of assets 7,335 1,756
Increase in other assets (1,043) (771)
Discontinued Operations:
Additions to property, plant and equipment - (142)
Proceeds from disposal of discontinued operations - 90,581
Business acquisitions, net of cash acquired (22,495) (37,575)
Net changes in short-term investments 260 -
--------- ---------
NET CASH PROVIDED BY (USED IN) INVESTING ACTIVITIES (37,870) 32,774
--------- ---------
FINANCING ACTIVITIES
Proceeds from long-term borrowings 73,491 91,376
Payments of long-term debt (67,102) (119,088)
Proceeds from exercise of stock options 2,699 746
Dividends paid (6,569) (5,932)
Purchase and retirement of common stock - (23,069)
--------- ---------
NET CASH PROVIDED BY (USED IN) FINANCING ACTIVITIES 2,519 (55,967)
--------- ---------
Effect of exchange rate changes on cash and
cash equivalents 141 1,293
--------- ---------
CHANGE IN CASH AND CASH EQUIVALENTS (3,950) 3,380
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 13,904 -
--------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 9,954 $ 3,380
========= =========
See accompanying notes to condensed consolidated financial statements.
WATTS INDUSTRIES, INC. AND SUBSIDIARIES
Notes to Condensed Consolidated Financial Statements
(Unaudited)
1. In the opinion of management, the accompanying unaudited,
condensed, consolidated financial statements contain all necessary
adjustments, consisting only of adjustments of a normal recurring
nature, to present fairly Watts Industries, Inc.'s Condensed
Consolidated Balance Sheet as of March 31, 1998, its Condensed
Consolidated Statements of Operations for the three and nine months
ended March 31, 1998 and 1997, and its condensed Consolidated
Statements of Cash Flows for the nine months ended March 31, 1998
and 1997.
The balance sheet at June 30, 1997 has been derived from the
audited financial statements at that date. Certain amounts have
been reclassified to conform with the 1998 presentation. The
accounting policies followed by the Company are described in the
June 30, 1997 financial statements which are contained in the
Company's 1997 Annual Report. It is suggested that these financial
statements be read in conjunction with the financial statements and
notes included in the 1997 Annual Report to Stockholders.
2. During September 1997, a wholly owned subsidiary of the
Company purchased the Orion Fittings Division of Kelstan Plastic
Products, Ltd. The Orion Fittings Division has manufactured
corrosion resistant polyolefin piping systems for laboratory
drainage and high purity process installations since 1963. The
product line includes pipe, fittings, sinks, neutralizing tanks, pH
alarm and monitoring systems and sediment interceptors. Sales have
been concentrated in the Canadian market and were approximately
$584,000 for the twelve months ended August 31, 1997.
During December 1997, a wholly owned subsidiary of the Company
purchased the pneumatic valve and motion switch business of
Aerodyne Controls Corporation. The Aerodyne product line consists
of high quality valve components for medical, analytical, military
and aerospace applications. Sales for the twelve months ended
October 1997 were approximately $7,000,000.
During March 1998, a wholly owned subsidiary of the Company
purchased the solenoid valve business of Atkomatic Valve Company.
The Atkomatic product line consists of heavy duty process solenoid
valves for clean air, gases, liquids, steam and corrosive and
cryogenic fluids. Sales for the twelve months ended September 30,
1997 were $4,500,000.
During March 1998, a wholly owned subsidiary of the Company
purchased Telford Valve & Specialties, Inc. of Edmonton, Canada.
Telford manufactures check valves, pipeline closures, and specialty
gate valves that are used in industrial and oil and gas
applications. Telford is also a distributor and authorized repair
facility for a number of other independent manufacturers of
oilfield products. Current annualized sales are approximately
$15,000,000.
The aggregate purchase price for these acquisitions was
$22,495,000.
3. During fiscal year ended June 30, 1996, the Company decided to
undertake certain restructuring initiatives aimed at improving the
efficiency of certain of its continuing operations. The two most
significant of those initiatives were the consolidation and
downsizing of Pibiviesse S.p.A. and the relocation of Jameco
Industries, Inc. from Wyandanch, New York to the Company's existing
Spindale, North Carolina manufacturing facility. In connection
with this restructuring plan and during the year ended June 30,
1996, the Company recorded a $25,415,000 restructuring charge for
related severance costs, plant closure costs and asset write-downs.
Cash payments for accrued employee severance and other plant
closure costs were $1,523,000 during the nine months ended March
31, 1998, and the Company's remaining accrued restructuring
liability was $2,301,000 at March 31, 1998. It is expected that
the restructuring initiatives will be substantially complete by
June 30, 1998. The Company expects that some settlement payments
will be paid subsequent to June 30, 1998.
Since commencement of the restructuring plan, there has been a
related net reduction of 246 employees. As of March 31, 1998,
there are approximately 50 additional restructuring related
terminations that are expected to occur.
4. On September 4, 1996, the Company sold its Municipal Water
Group of businesses. Sales revenue from these businesses amounted
to $14,027,000 during the period between July 1, 1996 and September
4, 1996. This revenue, net of all related expense including income
taxes, has been classified as income from discontinued operations
in the accompanying statement of operations for the nine months
ended March 31, 1997.
5. During the quarter ended December 31, 1997, the Company
adopted Statement of Financial Accounting Standards ("SFAS") No.
128 Earnings per Share. SFAS 128 required the Company to change
the method formerly used to compute earnings per share and to
restate all prior periods presented. The requirements for
calculating basic earnings per share excludes the dilutive effect
of securities. Diluted earnings per share assumes the conversion of
all dilutive securities. The following table sets forth the
reconciliation of the calculation per SFAS 128:
For the Three Months Ended March 31, 1998
Income Shares Per Share
(Numerator) (Denominator) Amount
Basic EPS
Net Income $14,041,000 27,162,904 $.52
Effect of Dilutive
Securities -
primarily
stock options - 424,539
Diluted EPS $14,041,000 27,587,443 $.51
For the Nine Months Ended March 31, 1998
Income Shares Per Share
(Numerator) (Denominator) Amount
Basic EPS
Net Income $41,270,000 27,082,038 $1.52
Effect of Dilutive
Securities -
primarily
stock options - 337,762
Diluted EPS $41,270,000 27,419,800 $1.51
At March 31, 1998, there were no outstanding options to purchase
shares of common stock with exercise prices greater than the
average market price of the common shares during the three-month
and nine-month periods then ended.
For the Three Months Ended March 31, 1997
Income Shares Per Share
(Numerator) (Denominator) Amount
Basic EPS
Net Income $12,889,000 27,029,898 $.48
Effect of Dilutive
Securities -
primarily
stock options - 275,854
Diluted EPS $12,889,000 27,305,752 $.47
For the Nine Months Ended March 31, 1997
Income Shares Per Share
(Numerator) (Denominator) Amount
Basic EPS
Income from
Continuing
Operations $36,985,000 27,224,419 $1.36
Income from
Discontinued
Operations 79,000 -
Gain on Disposal
of Discontinued
Operations 3,208,000 .12
Net Income $40,272,000 $1.48
Effect of Dilutive
Securities -
primarily
stock options - 161,311
Diluted EPS $40,272,000 27,385,730 $1.47
Options to purchase 26,500 shares and 689,100 shares of common
stock at prices ranging from $22.13 to $26.13 were outstanding
during the three-month and nine-month periods ended March 31, 1997,
respectively. These options were not included in the related
computations of diluted EPS since the exercise price of the options
was greater than the average market price of the common shares
during those respective periods.
6. During June 1997, the Company entered into a joint venture
agreement with the sales agent who markets imported vitreous china
and faucets into the do-it-yourself ("DIY") market. Prior to the
July 1997 commencement of operations by the joint venture, the
related sales were recorded as part of the Company's Jameco
business. The Company now has a 49% minority interest in the new
joint venture and reports activities on the equity basis, thus
excluding these sales from the Company's consolidated revenues.
Revenues in fiscal 1997 were $13,415,000 for this business.
During December 1997, the Company sold a small Italian valve
manufacturing division which was not part of the Company's core
business. The division's sales for the six-month period ended
December 31, 1997 were $3,386,000.
7. On March 27, 1998, the Company entered into an amended and
restated $125 million revolving credit agreement with a group of
commercial banks to replace the existing agreement. The agreement
expires on March 27, 2003. Interest payable on borrowings is
variable based upon the Company's option of selecting either a
LIBOR rate plus 0.165%, Prime Rate, or a competitive money market
rate to be specified by the lender.
8. The Company has developed comprehensive global plans to assess
and address in a timely manner its information systems including
customer service, production, distribution and financial systems in
conjunction with the year 2000. As part of these plans, the
Company is also communicating with its suppliers, distributors and
others with whom it conducts business to coordinate year 2000
compliance. The implementation of these plans is not expected to
have a material adverse effect on the results of operations or the
financial condition of the Company. However if the Company, its
suppliers or distributors are unable to fully implement these plans
related to year 2000 risk on a timely basis, it could result in a
financial risk.
9. The Company uses foreign currency forward exchange contracts
to reduce the impact of currency fluctuations on certain
anticipated intercompany purchase transactions that are expected to
occur within the fiscal year and other known exposures. The
notional amount of such contracts and the related realized and
unrealized gains and losses as of March 31, 1998 are not material.
10. Information in "Note (12) Contingencies and Environmental
Remediation" set forth in the Registrant's Form 10-K is
incorporated herein by reference. Also see Part II, Item 1.
Item 2. WATTS INDUSTRIES, INC. AND SUBSIDIARIES
Management's Discussion and Analysis of Financial Condition
and Results of Operations
Results of Operations
Three Months Ended March 31, 1998 Compared to
Three Months Ended March 31, 1997
Net sales decreased $576,000 (0.3%) to $183,615,000. An
analysis of this change in net sales is as follows:
Internal Growth $ 3,961,000 2.2%
Acquisitions 3,625,000 2.0%
Jameco Sales now through Joint Venture
and Divestitures (5,062,000) (2.8%)
Foreign Exchange Rate Effect (3,100,000) (1.7%)
Total Decrease $ (576,000) (0.3%)
The increase in net sales from internal growth is primarily
attributable to increased unit shipments of European oil and gas
valves and increased unit shipments of North American plumbing and
heating valves. These increases were partially offset by decreased
unit shipments of domestic oil and gas valves. Last year's sales
included $3,010,000 for a segment of the Jameco business for
imported vitreous china and faucets in which the Company now has a
49% minority interest, thereby eliminating these sales from current
year results. The unfavorable effect that changes in foreign
exchange rates had on sales was primarily attributable to the
Company's European operations. The Company intends to maintain its
strategy of seeking acquisition opportunities as well as expanding
its existing market position to achieve sales growth.
During December 1997, the Company sold a small Italian valve
manufacturing division which was not part of the Company's core
business. The division's sales for the three-month period ended
March 31, 1997 were $1,454,000.
Gross profit increased $504,000 (0.8%) and increased as a
percentage of net sales from 34.6% to 35.0%. This percentage
increase is primarily attributable to improved gross margins for
European oil and gas valves and domestic plumbing and heating
valves. The gross margin on oil and gas valves improved due to
increased sales volumes and factory efficiencies. The gross margin
on domestic plumbing and heating valves increased primarily due to
an improved sales mix. These improvements were partially offset by
manufacturing inefficiencies associated with the relocation of the
Jameco product line into a Watts Regulator factory in Spindale,
North Carolina.
Selling, general and administrative expenses decreased
$148,000 (0.4%) to $40,835,000. This decrease is primarily
attributable to the impact of foreign exchange rate changes and the
elimination of the operating expenses associated with the segment
of the Jameco business in which the Company now maintains a 49%
minority interest. These reductions were partially offset by the
inclusion of the expenses of acquired companies and increased
variable selling expenses.
The decrease in the effective tax rate from 36.9% to 34. 9%
was primarily attributable to the implementation of tax planning
strategies intended to reduce income tax expense.
Net income increased $1,152,000 (8.9%) to $14,041,000.
The Company's consolidated results of operations are impacted
by the effect that changes in foreign currency exchange rates have
on its international subsidiaries' operating results. Changes in
foreign exchange rates had an adverse effect on net income for the
quarter ended of approximately $350,000.
Results of Operations
Nine Months Ended March 31, 1998 Compared to
Nine Months Ended March 31, 1997
Net sales from continuing operations increased $7,854,000
(1.5%) to $542,273,000. An analysis of this change in net sales is
as follows:
Internal Growth $12,669,000 2.4%
Acquisitions/New Joint Ventures 21,039,000 3.9%
Jameco Sales now through Joint Venture
and Divestitures (12,521,000) (2.3%)
Foreign Exchange Rate Effect (13,333,000) (2.5%)
Total Increase $ 7,854,000 1.5%
The increase in net sales from internal growth is primarily
attributable to increased unit shipments of oil and gas valves and
increased unit shipments of plumbing and heating valves. The
increased sales due to acquisitions is primarily attributable to
the inclusion of the sales of Ames, acquired in January 1997. Last
year's sales included $9,271,000 for a segment of the Jameco
business for imported vitreous china and faucets in which the
Company now has a 49% minority interest, thereby eliminating these
sales from current year results. The unfavorable effect that
changes in foreign exchange rates had on sales was primarily
attributable to the Company's European operations. The Company
intends to maintain its strategy of seeking acquisition
opportunities as well as expanding its existing market position to
achieve sales growth.
During December 1997, the Company sold a small Italian valve
manufacturing division which was not part of the Company's core
business. The division's sales for the six-month period ended
December 31, 1997 were $3,386,000.
Gross profit from continuing operations increased $7,611,000
(4.1%) and increased as a percentage of net sales from 34.5% to
35.4%. This percentage increase is primarily attributable to
improved gross margins for European oil and gas valves and the
inclusion of the gross margin of Ames which operates at a higher
gross margin than the Company average. These improvements were
partially offset by manufacturing inefficiencies associated with
the relocation of the Jameco product line into a Watts Regulator
factory in Spindale, North Carolina.
Selling, general and administrative expenses increased
$3,488,000 (3.0%) to $121,575,000. This increase is primarily
attributable to the inclusion of the expenses of Ames and other
acquired companies and increased variable selling expenses. This
increase was partially offset by the effect of the change in
foreign exchange rates and the exclusion of the expenses of the
Jameco joint venture.
Interest income increased $846,000 to $1,243,000 due to an
increased level of cash and short-term investments.
Other nonoperating expense increased by $607,000 (355.0%) to
$778,000 for the nine months ended March 31, 1998. Minority
interest expense charges, resulting from the improved operating
results of the two Chinese joint ventures, were recognized during
this period. Increased charges were partially offset by gains
recognized on the sale of a Canadian manufacturing facility and a
small Italian valve manufacturing division.
The effective tax rate for continuing operations decreased
from 36.7% to 34.6% primarily due to the implementation of tax
planning strategies intended to reduce income tax expense.
Income from continuing operations increased $4,285,000 (11.6%)
to $41,270,000.
The Company's consolidated results of operations are impacted
by the effect that changes in foreign currency exchange rates have
on its international subsidiaries' operating results. Changes in
foreign exchange rates had an adverse effect on income from
continuing operations of approximately $1,400,000.
In the quarter ended September 30, 1996 the Company sold its
Municipal Water Group of companies. This divestiture resulted in
an after-tax gain of $3,208,000, or $.12 earnings per share on both
a basic and diluted basis for the period ended March 31, 1997.
Liquidity and Capital Resources
During the nine-month period ended March 31, 1998, the Company
generated $31,260,000 in cash flow from operations, which was
principally used to fund capital expenditures of $21,927,000.
These capital expenditures were primarily for manufacturing
machinery and equipment as part of the Company's commitment to
continuously improve its manufacturing capabilities. The Company's
capital expenditure budget for fiscal 1998 is $29,500,000.
During the nine months ended March 31, 1998, the Company sold
one of its facilities in Canada, consolidating the operations into
another existing Canadian plant. Additionally, the Company sold a
small Italian valve manufacturing division (ISI) which was not part
of the Company's core business. The proceeds for these two
transactions totaled $7,135,000.
On December 18, 1997, the Company acquired Aerodyne Controls
Corporation ("Aerodyne") located in Ronkonkoma, New York. Aerodyne
is a manufacturer of pneumatic valve and motion switches.
Aerodyne's sales for the twelve months ended October 1997 were
approximately $7,000,000. Customers are primarily in the medical,
analytical, military and aerospace markets.
On March 26, 1998, the Company acquired Telford Valve and
Specialties, Inc. ("Telford") located in Edmonton, Alberta, Canada.
Telford manufactures check valves, pipeline closures, and specialty
gate valves that are used in industrial and oil and gas
applications. Telford is also a distributor and authorized repair
facility for a number of other independent manufacturers of oil
field products. Current annualized sales are approximately
$15,000,000.
The aggregate purchase price for the acquisitions of Aerodyne,
Telford, and other product line acquisitions during the nine months
ended March 31, 1998 is $22,495,000.
The Company has available an unsecured $125,000,000 line of
credit which expires on March 27, 2003. The Company's intent is to
utilize this credit facility to support the Company's acquisition
program, working capital requirements of acquired companies and for
general corporate purposes. As of March 31, 1998, $35,000,000 was
borrowed under this line of credit. Working capital was
$248,635,000 at March 31, 1998 compared to $224,702,000 at June 30,
1997.
The ratio of current assets to current liabilities was 2.9 to
1 at both March 31, 1998 and June 30, 1997. Cash and short-term
investments were $10,211,000 at March 31, 1998 compared to
$14,422,000 at June 30, 1997. Debt as a percentage of total
capital employed was 26.8% at March 31, 1998 compared to 27.8% at
June 30, 1997. At March 31, 1998, the Company was in compliance
with all covenants related to its existing debt.
The Company from time to time is involved with environmental
proceedings and incurs costs on an ongoing basis related to
environmental matters. The Company currently anticipates that it
will not incur significant expenditures in fiscal 1998 in
connection with any of these environmentally contaminated sites.
The Company anticipates that available funds and those funds
provided from current operations will be sufficient to meet current
operating requirements and anticipated capital expenditures for at
least the next 24 months.
The Company has developed comprehensive global plans to assess
and address in a timely manner its information systems including
customer service, production, distribution and financial systems in
conjunction with the year 2000. As part of these plans, the
Company is also communicating with its suppliers, distributors and
others with whom it conducts business to coordinate year 2000
compliance. The implementation of these plans is not expected to
have a material adverse effect on the results of operations or the
financial condition of the Company. However if the Company, its
suppliers or distributors are unable to fully implement these plans
related to year 2000 risk on a timely basis, it could result in a
financial risk.
The Company uses foreign currency forward exchange contracts
to reduce the impact of currency fluctuations on certain
intercompany purchase transactions that will occur within the
fiscal year and other known foreign currency exposures. The
notional amount of such contracts and the related realized and
unrealized gains and losses as of March 31, 1998 are not material.
Certain statements contained herein are forward looking. Many
factors could cause actual results to differ from these statements,
including loss of market share through competition; introduction of
competing products by other companies; pressure on prices from
competitors, suppliers, and/or customers; regulatory obstacles;
lack of acceptance of new products; changes in the plumbing and
heating and oil and gas markets; changes in global demand for the
Company's products; changes in distribution of the Company's
products; interest rates; foreign exchange fluctuations;
cyclicality of industries in which the Company markets certain of
its products and general and economic factors in markets where the
Company's products are sold, manufactured or marketed; and other
factors discussed in the Company's reports filed with the
Securities and Exchange Commission.
Statement of Financial Accounting Standards ("SFAS") No. 130,
Reporting Comprehensive Income, and SFAS No. 131, Disclosures about
Segments of an Enterprise and Related Information, become effective
during fiscal year 1999. At that time, the Company will report net
income as currently reported and will begin to also report
"comprehensive income" which will include the effect of currency
translation adjustments. As the Company adopts SFAS No. 131, it
will make the required disclosures concerning its segments.
Part II. Other Information
Item 1. Legal Proceedings
The Company, like other worldwide manufacturing companies, is
subject to a variety of potential liabilities connected with its
business operations, including potential liabilities and expenses
associated with possible product defects or failures and compliance
with environmental laws. The Company maintains product liability
and other insurance coverage which it believes to be generally in
accordance with industry practices. Nonetheless, such insurance
coverage may not be adequate to protect the Company fully against
substantial damage claims which may arise from product defects and
failures.
Leslie Controls, Inc. and Spence Engineering Company, both
subsidiaries of the Company, are involved as third-party defendants
in various civil product liability actions pending in the U.S.
District Court, Northern District of Ohio. The underlying claims
have been filed by present or former employees of various shipping
companies for personal injuries allegedly received as a result of
exposure to asbestos. The shipping companies contend that they
installed in their vessels certain valves manufactured by Leslie
Controls and/or Spence Engineering which contained asbestos. Leslie
Controls is also a defendant in two similar matters pending in
Superior Court of California, San Francisco County. The Company
has resort to certain insurance coverage with respect to these
matters. Coverage has been disputed by certain of the carriers
and, therefore, recovery is questionable, a factor which the
Company has considered in its evaluation of these matters. The
Company has established certain reserves which it currently
believes are adequate in light of the probable and estimable
exposure of pending and threatened litigation of which it has
knowledge. Based on facts presently known to it, the Company does
not believe the outcome of these proceedings will have a material
adverse effect on its financial condition, results of operations or
its liquidity.
On June 25, 1997, a complaint entitled State of California ex
rel. Nora Armenta v. James Jones Company, Mueller Co., Tyco
International, Ltd. and Watts Industries, Inc. was filed under seal
in the Superior Court of Los Angeles County, California, alleging
violations of the California False Claims Act. The Company became
aware of the action in April 1998. The complaint alleges that
since at least 1987, James Jones Company, (which was a subsidiary
of the Company until September 1996 when it was sold to Tyco
International Ltd.), sold products utilized in municipal water
systems within the State of California which failed to meet
contractually specified industry standards and falsely certified
that such standards had been met. The complaint alleges that the
municipal entities have suffered tens of millions of dollars of
damages as a result of the defective products, and seeks injunctive
relief, treble damages, civil penalties of up to $10,000 for each
violation of the California False Claims Act, costs and attorney's
fees. The Company has undertaken the defense of the action on
behalf of other named defendants subject to contractual limitations
with respect to its indemnification obligations. The action is
filed by a former employee of James Jones Company, and no
government entity is currently a party by intervention in the
action. The Company intends to vigorously defend the action.
Certain of the Company's operations generate solid and
hazardous wastes, which are disposed of elsewhere by arrangement
with the owners or operators of disposal sites or with transporters
of such waste. The Company's foundry and other operations are
subject to various federal, state and local laws and regulations
relating to environmental quality. Compliance with these laws and
regulations requires the Company to incur expenses and monitor its
operations on an ongoing basis. The Company cannot predict the
effect of future requirements on its capital expenditures, earnings
or competitive position due to any changes in federal, state or
local environmental laws, regulations or ordinances.
The Company is currently a party to or otherwise involved with
various administrative or legal proceedings under federal, state or
local environmental laws or regulations involving a number of
sites, in some cases as a participant in a group of potentially
responsible parties ("PRPs"). Three of these sites, the Sharkey
and Combe Landfills in New Jersey, and the San Gabriel Valley/El
Monte, California water basin site, are listed on the National
Priorities List. With respect to the Sharkey Landfill, the Company
has been allocated .75% of the remediation costs, an amount which
is not material to the Company. No allocations have been made to
date with respect to the Combe Landfill or San Gabriel Valley
sites. The EPA has formally notified several entities that they
have been identified as being potentially responsible parties with
respect to the San Gabriel Valley site. As the Company was not
included in this group, its potential involvement in this matter is
uncertain at this point given that either the PRPs named to date or
the EPA could seek to expand the list of potentially responsible
parties. In addition to the foregoing, the Solvent Recovery
Service of New England site and the Old Southington landfill site,
both in Connecticut, are on the National Priorities List, but, with
respect thereto, the Company has resort to indemnification from
third parties and based on currently available information, the
Company believes it will be entitled to participate in a de minimis
capacity.
During the quarter ending March 31, 1998, the Company received
an administrative order from the New Hampshire Department of
Environmental Services with respect to certain regulatory issues
concerning its Franklin, New Hampshire operation. The Company has
appealed this administrative order. The state agency has not as of
yet issued any fines or penalties in connection with this matter.
With respect to the Combe Landfill, the Company is one of
approximately 30 potentially responsible parties. The Company and
all other PRPs received a Supplemental Directive from the New
Jersey Department of Environmental Protection & Energy in 1994
seeking to recover approximately $9 million in the aggregate for
the operation, maintenance, and monitoring of the implemented
remedial action taken up to that time in connection with the Combe
Landfill North site. Certain of the PRPs, including the Company,
are currently negotiating with the state only to assume maintenance
of this site in an effort to reduce future costs. The Company and
the remaining PRPs have also received a formal demand from the U.S.
Environmental Protection Agency to recover approximately $17
million expended to date in the remediation of this site. The EPA
has filed suit against certain of the PRPs, and the Company has
been named a third-party defendant in this litigation.
Based on facts presently known to it, the Company does not
believe that the outcome of these environmental proceedings will
have a material adverse effect on its financial condition. The
Company has established balance sheet accruals which it currently
believes are adequate in light of the probable and estimable
exposure of pending and threatened environmental litigation and
proceedings of which it has knowledge. Given the nature and scope
of the Company's manufacturing operations, there can be no
assurance that the Company will not become subject to other
environmental proceedings and liabilities in the future which may
be material to the Company.
Item 6. Exhibits and Reports on Form 8-K
(a) The exhibits are furnished elsewhere in this report.
(b) There were no reports filed on Form 8-K for the quarter ended
March 31, 1998.
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.
WATTS INDUSTRIES, INC.
Date: May 13, 1998 By: /s/ Timothy P.Horne
Timothy P. Horne
Chairman and Chief
Executive Officer
Date: May 13, 1998 By: /s/ Kenneth J. McAvoy
Kenneth J. McAvoy
Chief Financial Officer
and Treasurer
EXHIBIT INDEX
Listed and indexed below are all Exhibits filed as part of this
report.
Exhibit No. Description
3.1 Restated Certificate of Incorporation, as amended. (1)
3.2 Amended and Restated By-Laws. (2)
10.28 Amended and Restated Revolving Credit Agreement
dated March 27, 1998 between and among Watts
Investment Company, certain financial institutions,
BankBoston N.A., as Administrative Agent, and the
Registrant as Guarantor. *
11 Computation of earnings per share (3)
27.1 Financial Data Schedule-March 31, 1998*
27.2 Restated Financial Data Schedule-March 31, 1997*
27.3 Restated Financial Data Schedule-September 30, 1996*
(1) Incorporated by reference to the relevant exhibit to the
Registrant's Annual Report on Form 10-K filed with the
Securities and Exchange Commission on September 28, 1995.
(2) Incorporated by reference to the relevant exhibit to the
Registrant's Current Report on Form 8-K filed with the
Securities and Exchange Commission on May 15, 1992.
(3) Incorporated by reference to the Notes to Condensed
Consolidated Financial Statements, Note 5, of this Report.
*Filed herewith.
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
Dated as of
March 27, 1998
among
WATTS INVESTMENT COMPANY,
WATTS INDUSTRIES, INC., as Guarantor,
THE FINANCIAL INSTITUTIONS LISTED ON
SCHEDULE 1 HERETO,
BANKBOSTON, N.A. (f/k/a/ The First National Bank of
Boston), as Administrative Agent and Competitive Bid
Agent
and
BANCBOSTON SECURITIES INC., as Arranger
TABLE OF CONTENTS
Page
1. DEFINITIONS AND RULES OF INTERPRETATION. 2
1.1. Definitions. 2
1.2. Rules of Interpretation. 16
2. THE REVOLVING CREDIT FACILITY AND THE COMPETITIVE
LOAN FACILITY. 17
2.1. Commitment to Lend. 17
2.2. Facility Fee. 17
2.3. Reduction of Total Commitment. 18
2.4. The Notes. 18
2.5. Interest on Revolving Credit Loans and
Competitive Loans. 19
2.6. Requests for Revolving Credit Loans. 19
2.7. Conversion Options for Revolving Credit
Loans. 20
2.7.1. Conversion to Different Type of
Revolving Credit Loan. 20
2.7.2. Continuation of Type of Revolving
Credit Loan. 20
2.7.3. Eurodollar Rate Loans. 21
2.8. Funds for Revolving Credit Loans. 21
2.8.1. Funding Procedures. 21
2.8.2. Advances by Administrative Agent. 21
2.9. Pro Rata Treatment. 22
2.10. Competitive Bid Procedures. 22
2.10.1. Competitive Loan Request. 22
2.10.2. Bids by Banks. 23
2.10.3. Notice to Borrower of Bids. 24
2.10.4. Acceptance and Rejection of
Bids. 24
2.10.5. Notification to Banks. 25
2.10.6. Competitive Bid Agent as Bidder. 25
2.10.7. Notices. 26
3. REPAYMENT OF REVOLVING CREDIT LOANS AND
COMPETITIVE LOANS. 26
3.1. Maturity. 26
3.1.1. Revolving Credit Loans. 26
3.1.2. Competitive Loans. 26
3.2. Mandatory Repayments of Revolving Credit
Loans. 26
3.3. Optional Repayments of Revolving Credit
Loans. 26
3.4. No Optional Repayments of Competitive
Loans. 27
3.5. Method of Certain Prepayments and
Repayments. 27
4. CERTAIN GENERAL PROVISIONS. 27
4.1. Arrangement Fee. 27
4.2. Administrative Agent's Fee. 27
4.3. Funds for Payments. 28
4.3.1. Payments to Administrative Agent. 28
4.3.2. No Offset, etc. 28
4.4. Computations. 28
4.5. Inability to Determine Eurodollar Rate. 29
4.6. Illegality. 29
4.7. Additional Costs, etc. 30
4.8. Capital Adequacy. 31
4.9. Certificate. 32
4.10. Indemnity. 32
4.11. Interest on Overdue Amounts. 32
5. GUARANTY. 32
5.1. Guaranty. 32
5.2. Guaranty Absolute. 33
5.3. Effectiveness; Enforcement. 34
5.4. Waivers. 34
5.5. Subrogation Waiver. 34
6. REPRESENTATIONS AND WARRANTIES. 35
6.1. Corporate Authority. 35
6.1.1. Incorporation; Good Standing. 35
6.1.2. Authorization. 35
6.1.3. Enforceability. 36
6.2. Governmental Approvals. 36
6.3. Title to Properties; Leases. 36
6.4. Fiscal Year and Financial Statements. 36
6.4.1. Fiscal Year. 36
6.4.2. Financial Statements. 36
6.5. No Material Changes, etc. 37
6.6. Franchises, Patents, Copyrights, etc. 37
6.7. Litigation. 37
6.8. No Materially Adverse Contracts, etc. 38
6.9. Compliance With Other Instruments, Laws,
etc. 38
6.10. Tax Status. 38
6.11. No Event of Default. 38
6.12. Holding Company and Investment Company
Acts. 38
6.13. Absence of Financing Statements, etc. 39
6.14. Certain Transactions. 39
6.15. Employee Benefit Plans. 39
6.15.1. In General. 39
6.15.2. Terminability of Welfare Plans. 40
6.15.3. Guaranteed Pension Plans. 40
6.15.4. Multiemployer Plans. 41
6.16. Regulations U and X. 41
6.17. Ineligible Securities. 41
6.18. Environmental Compliance. 41
6.19. Subsidiaries, etc. 44
6.20. Disclosure. 44
6.21. Year 2000 Compliance. 44
7. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE
PARENT. 44
7.1. Punctual Payment. 44
7.2. Maintenance of Office. 44
7.3. Records and Accounts. 45
7.4. Financial Statements, Certificates and
Information. 45
7.5. Notices. 46
7.5.1. Defaults. 46
7.5.2. Environmental Events. 47
7.5.3. Notice of Litigation and
Judgments. 47
7.5.4. Fiscal Year. 48
7.6. Corporate Existence; Maintenance of
Properties. 48
7.7. Insurance. 48
7.8. Taxes. 48
7.9. Inspection of Properties and Books, etc. 49
7.9.1. General. 49
7.9.2. Communication with Accountants. 49
7.10. Compliance with Laws, Contracts,
Licenses, and Permits. 50
7.11. Employee Benefit Plans. 50
7.12. Use of Proceeds. 51
7.13. Further Assurances. 51
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND
THE PARENT. 51
8.1. Restrictions on Indebtedness. 51
8.2. Restrictions on Liens. 53
8.3. Restrictions on Investments. 54
8.4. Distributions. 56
8.5. Merger, Consolidation. 56
8.5.1. Mergers and Acquisitions. 56
8.5.2. Disposition of Assets. 57
8.6. Sale and Leaseback. 57
8.7. Compliance with Environmental Laws. 58
8.8. Employee Benefit Plans. 58
8.9. Certain Transactions. 59
9. FINANCIAL COVENANTS OF THE BORROWER AND THE
PARENT. 59
9.1. Fixed Charge Coverage Ratio. 59
9.2. Leverage Ratio. 59
10. CONDITIONS TO EFFECTIVENESS. 60
10.1. Loan Documents. 60
10.2. Certified Copies of Charter Documents. 60
10.3. Corporate Action. 60
10.4. Incumbency Certificate. 60
10.5. Assignment and Acceptance. 61
10.6. Opinion of Counsel. 61
10.7. Proceedings and Documents. 61
10.8. Payment of Fees. 61
11. CONDITIONS TO ALL BORROWINGS. 61
11.1. Representations True; No Event of
Default. 61
11.2. No Legal Impediment. 62
11.3. Governmental Regulation. 62
12. EVENTS OF DEFAULT; ACCELERATION; ETC. 62
12.1. Events of Default and Acceleration. 62
12.2. Termination of Commitments. 66
12.3. Remedies. 66
12.4. Distribution of Proceeds. 67
13. SETOFF. 67
14. THE ADMINISTRATIVE AGENT AND THE COMPETITIVE BID
AGENT. 68
14.1. Authorization. 68
14.2. Employees and Agents. 69
14.3. No Liability. 69
14.4. No Representations. 69
14.4.1. General. 69
14.4.2. Closing Documentation, etc. 70
14.5. Payments. 71
14.5.1. Payments to Administrative
Agent. 71
14.5.2. Distribution by Administrative
Agent. 71
14.5.3. Delinquent Banks. 71
14.6. Holders of Notes. 72
14.7. Indemnity. 72
14.8. Agent as Bank. 72
14.9. Resignation. 72
14.10. Notification of Defaults and Events of
Default. 73
15. EXPENSES. 73
16. INDEMNIFICATION. 74
17. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION. 75
17.1. Sharing of Information with Section 20
Subsidiary. 75
17.2. Confidentiality. 75
17.3. Prior Notification. 76
17.4. Other. 76
18. SURVIVAL OF COVENANTS, ETC. 76
19. ASSIGNMENT AND PARTICIPATION. 77
19.1. Conditions to Assignment by Banks. 77
19.2. Certain Representations and Warranties;
Limitations; Covenants. 77
19.3. Register. 79
19.4. New Notes. 79
19.5. Participations. 80
19.6. Disclosure. 80
19.7. Assignee or Participant Affiliated with
the Borrower. 80
19.8. Miscellaneous Assignment Provisions. 81
19.9. Assignment by Borrower. 81
20. NOTICES, ETC. 82
21. GOVERNING LAW. 82
22. HEADINGS. 83
23. COUNTERPARTS. 83
24. ENTIRE AGREEMENT, ETC. 83
25. WAIVER OF JURY TRIAL. 83
26. CONSENTS, AMENDMENTS, WAIVERS, ETC. 84
27. SEVERABILITY. 85
28. TRANSITIONAL ARRANGEMENTS. 85
28.1. Original Credit Agreement Superseded. 85
28.2. Return and Cancellation of Notes. 85
28.3. Interest and Fees Under Superseded
Agreement. 85
Exhibits & Schedules
Exhibit A-1
Form of Revolving Credit Note
Exhibit A -2
Form of Amended and Restated Revolving
Credit Note
Exhibit B-1 -
Form of Competitive Bid Request
Exhibit B-2 -
Form of Notice of Competitive Bid
Request
Exhibit B-3 -
Form of Competitive Bid
Exhibit B-4 -
Form of Competitive Bid Accept/Reject
Letter
Exhibit C -
Form of Loan Request
Exhibit D -
Form of Compliance Certificate
Exhibit E -
Form of Legal Opinion
Exhibit F -
Form of Assignment and Acceptance
Schedule 1 -
Banks, Commitments, Commitment
Percentages, Domestic Lending
Offices, Eurodollar Lending Offices
Schedule 6.3 -
Leased Property
Schedule 6.7 -
Litigation
Schedule 6.13 -
Financing Statements
Schedule 6.18 -
Environmental Matters
Schedule 6.19 -
Subsidiaries
Schedule 8.1 -
Existing Indebtedness
Schedule 8.2 -
Liens
Schedule 8.3 -
Investments
AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
is made as of March 27, 1998, by and among (a) WATTS
INVESTMENT COMPANY (the "Borrower") a Delaware corporation
having its principal place of business at 801 West Street,
Second Floor, Wilmington, Delaware, 19801 (b) WATTS
INDUSTRIES, INC. (the "Parent"), a Delaware corporation
having its principal place of business at 815 Chestnut
Street, North Andover, Massachusetts 01845, as guarantor
hereunder (the "Guarantor"), (c) the financial
institutions listed on Schedule 1 hereto and such other
financial institutions that are or may become parties to
this Credit Agreement from time to time in accordance with
the provisions hereof, (d) BANKBOSTON, N.A. ("BankBoston,"
formerly known as The First National Bank of Boston), as
administrative agent (the "Administrative Agent") and
competitive bid agent (the "Competitive Bid Agent") for
itself and the other Banks (as defined herein), and (e)
BANCBOSTON SECURITIES INC., a Massachusetts corporation,
as the arranger (the "Arranger").
WHEREAS, pursuant to a Revolving Credit Agreement
dated as of August 30, 1994 (as amended from time to time,
the "Original Credit Agreement), by and among the
Borrower, BankBoston and the other Banks (as defined
therein) and the Parent, the Banks made loans available to
the Borrower for the purposes described therein; and
WHEREAS, the Borrower has requested to amend and
restate the Original Credit Agreement to, among other
things, continue to provide financing for the funding of
future acquisitions and for general corporate purposes,
and the Banks are willing to amend and restate the
Original Credit Agreement and to continue to provide such
financing on the terms and conditions set forth herein;
NOW, THEREFORE, the Borrower, the Parent, the Banks,
the Administrative Agent and the Competitive Bid Agent
agree that on and as of the Closing Date (as hereinafter
defined), the Original Credit Agreement is hereby amended
and restated in its entirety and shall remain in full
force and effect only as expressly set forth herein.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions. The following terms shall have
the meanings set forth in this S.1 or elsewhere in the
provisions of this Credit Agreement referred to below:
Administrative Agent. As defined in the preamble
hereto.
Administrative Agent's Head Office. The
Administrative Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or at such other
location as the Agent may designate from time to time.
Administrative Agent's Special Counsel. Bingham Dana
LLP or such other counsel as may be approved by the
Administrative Agent.
Affiliate. Any Person that would be considered to be
an affiliate of the Parent or the Borrower under Rule
144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if
such Person were issuing securities.
Agents. The Administrative Agent and the Competitive
Bid Agent.
Applicable Margin. A percentage to be determined for
each fiscal quarter as of the last day of the previous
fiscal quarter based on the higher of the Parent's senior
unsecured debt ratings as published by either (i) Moody's
Investors Services, Inc. or (ii) Standard & Poor's Rating
Group on such date, in accordance with the schedule set
forth below:
Rating
S&P/Moody's
Applicable
Margin
A/A2 or Higher
0.150%
A-/A3
0.165%
BBB+/Baa 1
0.185%
BBB/Baa2
0.220%
BBB-/Baa3
0.315%
Less than BBB-/Baa3
0.500%
If the Parent's senior unsecured debt rating as published
by each of the Rating Agencies varies by (i) one rating
level, the Applicable Margin will be determined based upon
the higher of the two ratings and (ii) more than one
rating level, the Applicable Margin will be determined
based upon one rating level above the lower of the two
ratings.
Assignment and Acceptance. See S.19.1.
Balance Sheet Date. June 30, 1997.
BankBoston. BankBoston, N.A.
Banks. BankBoston and the other lending institutions
listed on Schedule 1 hereto and any other Person who
becomes an assignee of any rights and obligations of a
Bank pursuant to S.19.
Base Rate. The higher of (i) the annual rate of
interest announced from time to time by BankBoston at its
head office in Boston, Massachusetts, as its "base rate"
and (ii) one-half of one percent (1/2%) above the Federal
Funds Effective Rate. For the purposes of this
definition, "Federal Funds Effective Rate" shall mean, for
any day, the rate per annum equal to the weighted average
of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or if such day
is not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business
Day, the average of the quotations for such day on such
transactions received by the Agent from three funds
brokers of recognized standing selected by the Agent.
Base Rate Loans. Revolving Credit Loans bearing
interest calculated by reference to the Base Rate.
Borrower. As defined in the preamble hereto.
Business Day. Any day on which banking institutions
in Boston, Massachusetts are open for the transaction of
banking business and, in the case of Eurodollar Rate
Loans, also a day which is a Eurodollar Business Day.
Capital Assets. Fixed assets, both tangible (such as
land, buildings, fixtures, machinery and equipment) and
intangible (such as patents, copyrights, trademarks,
franchises and good will); provided that Capital Assets
shall not include any item customarily charged directly to
expense or depreciated over a useful life of twelve (12)
months or less in accordance with generally accepted
accounting principles.
Capital Expenditures. Amounts paid or indebtedness
incurred by the Parent or any of its Subsidiaries in
connection with the purchase or lease by the Parent or any
of its Subsidiaries of Capital Assets that would be
required to be capitalized and shown on the balance sheet
of such Person in accordance with generally accepted
accounting principles.
Capitalized Leases. Leases under which the Parent or
any of its Subsidiaries is the lessee or obligor, the
discounted future rental payment obligations under which
are required to be capitalized on the balance sheet of the
lessee or obligor in accordance with generally accepted
accounting principles.
CERCLA. See S.6.18.
Closing Date. March 27, 1998.
Code. The Internal Revenue Code of 1986.
Commitment. With respect to each Bank, the amount
set forth on Schedule 1 hereto as the amount of such
Bank's commitment to make Loans to the Borrower, as the
same may be reduced from time to time; or if such
commitment is terminated pursuant to the provisions
hereof, zero.
Commitment Percentage. With respect to each Bank,
the percentage determined by dividing such Bank's
Commitment by the aggregate Commitments of all of the
Banks. Each Bank's Commitment Percentage as of the
Closing Date is set forth on Schedule 1 hereto.
Competitive Bid. An offer by a Bank to make a
Competitive Loan pursuant to S.2.10 hereof.
Competitive Bid Accept/Reject Letter. A notification
made by the Borrower to the Competitive Bid Agent pursuant
to S.2.10 hereof in the form of Exhibit B-4 hereto.
Competitive Bid Agent. As defined in the preamble
hereto.
Competitive Bid Rate. As to any Competitive Bid made
by a Bank pursuant to S.2.10 hereof, the Money Market Rate
offered by the Bank making such Competitive Bid.
Competitive Bid Request. A request made pursuant to
S.2.10 hereof in the form of Exhibit B-1 hereto.
Competitive Borrowing. A borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the
Bank or Banks whose Competitive Bids have been accepted by
the Borrower under the bidding procedure described in
S.2.10 hereof.
Competitive Loan. A loan from a Bank to the Borrower
pursuant to the bidding procedure described in S.2.10
hereof. Each Competitive Loan shall bear interest at the
Money Market Rate specified by the Bank making such
Competitive Loan in its Competitive Bid.
Consolidated or consolidated. With reference to any
term defined herein, shall mean that term as applied to
the accounts of the Parent and its Subsidiaries,
consolidated in accordance with generally accepted
accounting principles.
Consolidated Net Income (or Deficit). The
consolidated net income (or deficit) of the Parent and its
Subsidiaries, after deduction of all expenses, taxes, and
other proper charges, determined in accordance with
generally accepted accounting principles, after
eliminating therefrom all extraordinary nonrecurring items
of income or loss.
Consolidated Net Worth. Consolidated Total Assets
minus Consolidated Total Liabilities, and minus, to the
extent otherwise includable in the computation of
Consolidated Net Worth, any subscriptions receivable for
the purchase of capital stock.
Consolidated Total Assets. All assets of the Parent
and its Subsidiaries determined on a consolidated basis in
accordance with generally accepted accounting principles.
Consolidated Total Interest Expense. For any period,
the aggregate amount of interest required to be paid or
accrued by the Parent and its Subsidiaries during such
period on all Indebtedness of the Parent and its
Subsidiaries outstanding during all or any part of such
period, whether such interest was or is required to be
reflected as an item of expense or capitalized, including
payments consisting of interest in respect of Capitalized
Leases and plus, without duplication, commitment fees,
agency fees, facility fees, balance deficiency fees and
similar fees or expenses in connection with the borrowing
of money.
Consolidated Total Liabilities. All liabilities of
the Parent and its Subsidiaries determined on a
consolidated basis in accordance with generally accepted
accounting principles.
Conversion Request. A notice given by the Borrower
to the Agent of the Borrower's election to convert or
continue a Loan in accordance with 2.7.
Credit Agreement. This Amended and Restated
Revolving Credit Agreement, including the Schedules and
Exhibits hereto.
Default. See 12.
Distribution. The declaration or payment of any
dividend on or in respect of any shares of any class of
capital stock of any of the Borrower, the Parent or any of
their Subsidiaries, other than dividends payable solely in
shares of common stock of such Person; the purchase,
redemption, or other retirement of any shares of any class
of capital stock of any of the Borrower, the Parent or any
of their Subsidiaries (or any options, warrants or other
rights to acquire shares of such capital stock), directly
or indirectly through a Subsidiary of such Person or
otherwise; the return of capital by any of the Borrower,
the Parent or any of their Subsidiaries to its
shareholders as such; or any other distribution on or in
respect of any shares of any class of capital stock of any
of the Borrower, the Parent or any of their Subsidiaries.
Dollars or $. Dollars in lawful currency of the
United States of America.
Domestic Lending Office. Initially, the office of
each Bank designated as such in Schedule 1 hereto;
thereafter, such other office of such Bank, if any,
located within the United States that will be making or
maintaining Base Rate Loans.
Drawdown Date. The date on which any Loan is made or
is to be made, and the date on which any Revolving Credit
Loan is converted or continued in accordance with 2.7.
Earnings Before Interest, Taxes, Depreciation and
Amortization. The Consolidated Net Income (or Deficit) of
the Parent and its Subsidiaries for any period, after all
expenses and other proper charges but before payment or
provision for any income taxes or interest expense for
such period, plus depreciation and amortization for such
period, determined in accordance with generally accepted
accounting principles.
Eligible Assignee. Any of (i) a commercial bank or
finance company organized under the laws of the United
States, or any State thereof or the District of Columbia,
and having total assets in excess of $5,000,000,000; (ii)
a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political
subdivision of any such country, and having total assets
in excess of $5,000,000,000, provided that such bank is
acting through a branch or agency located in the country
in which it is organized or another country which is also
a member of the OECD; and (iii) if, but only if, an Event
of Default has occurred and is continuing, any other bank,
insurance company, commercial finance company or other
financial institution or other Person approved by the
Agent, such approval not to be unreasonably withheld.
Employee Benefit Plan. Any employee benefit plan
within the meaning of 3(3) of ERISA maintained or
contributed to by any of the Borrower, the Parent or any
ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. See 6.18(a).
ERISA. The Employee Retirement Income Security Act
of 1974.
ERISA Affiliate. Any Person which is treated as a
single employer with either of the Borrower or the Parent
under 414 of the Code.
ERISA Reportable Event. A reportable event with
respect to a Guaranteed Pension Plan within the meaning of
4043 of ERISA and the regulations promulgated thereunder
as to which the requirement of notice has not been waived.
Eurocurrency Reserve Rate. For any day with respect
to a Eurodollar Rate Loan, the maximum rate (expressed as
a decimal) at which any lender subject thereto would be
required to maintain reserves under Regulation D of the
Board of Governors of the Federal Reserve System (or any
successor or similar regulations relating to such reserve
requirements) against "Eurocurrency Liabilities" (as that
term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be
adjusted automatically on and as of the effective date of
any change in the Eurocurrency Reserve Rate.
Eurodollar Business Day. Any day on which commercial
banks are open for international business (including
dealings in Dollar deposits) in London or such other
eurodollar interbank market as may be selected by the
Agent in its sole discretion acting in good faith.
Eurodollar Lending Office. Initially, the office of
each Bank designated as such in Schedule 1 hereto;
thereafter, such other office of such Bank, if any, that
shall be making or maintaining Eurodollar Rate Loans.
Eurodollar Rate. For any Interest Period with
respect to a Eurodollar Rate Loan, the rate of interest
equal to (i) the rate at which BankBoston's Eurodollar
Lending Office is offered Dollar deposits, at or about
10:00 a.m., Boston time, two Eurodollar Business Days
prior to the beginning of such Interest Period in the
interbank eurodollar market where the eurodollar and
foreign currency and exchange operations of such
Eurodollar Lending Office are customarily conducted, for
delivery on the first day of such Interest Period for the
number of days comprised therein and in an amount
comparable to the amount of the Eurodollar Rate Loan of
BankBoston to which such Interest Period applies, divided
by (ii) a number equal to 1.00 minus the Eurocurrency
Reserve Rate, if applicable.
Eurodollar Rate Loans. Revolving Credit Loans
bearing interest calculated by reference to the Eurodollar
Rate.
Event of Default. See 12.
Existing Indebtedness. See 8.1(f).
Facility Fee. See 2.2.
Facility Fee Rate. For any date of determination, a
percentage to be determined for such date based on the
higher of the Parent's senior unsecured debt ratings as
published by either (i) Moody's Investors Services, Inc.
or (ii) Standard & Poor's Rating Group on such date, in
accordance with the schedule set forth below:
Rating
S&P/Moody's
Facility Fee
Rate
A/A2 or Higher
0.070%
A-/A3
0.075%
BBB+/Baa 1
0.090%
BBB/Baa2
0.105%
BBB-/Baa3
0.135%
Less than BBB-/Baa3
0.250%
If the Parent's senior unsecured debt rating as published
by each of the Rating Agencies varies by (i) one rating
level, the Facility Fee Rate will be determined based upon
the higher of the two ratings and (ii) more than one
rating level, the Facility Fee Rate will be determined
based upon one rating level above the lower of the two
ratings.
Fee Letter. See 4.1.
Fixed Charge Coverage Ratio. For any period, the
ratio of (i) the result of (A) Earnings Before Interest,
Taxes, Depreciation and Amortization minus (B) Capital
Expenditures, to (ii) the sum of (A) Consolidated Total
Interest Expense (without duplication of any interest
taken into account in the computation of the Fixed Charged
Coverage Ratio in any prior period) plus (B) current
maturities of long-term Indebtedness due and payable
during such period in accordance with generally accepted
accounting principles, in each case for the Parent and its
Subsidiaries on a consolidated basis for such period.
generally accepted accounting principles. (i) When
used in 8.1 or 9, whether directly or indirectly through
reference to a capitalized term used therein, means (A)
principles that are consistent with the principles
promulgated or adopted by the Financial Accounting
Standards Board and its predecessors, in effect for the
fiscal year ended on the Balance Sheet Date, and (B) to
the extent consistent with such principles, the accounting
practice of the Parent reflected in its financial
statements for the year ended on the Balance Sheet Date,
and (ii) when used in general, other than as provided
above, means principles that are (A) consistent with the
principles promulgated or adopted by the Financial
Accounting Standards Board and its predecessors, as in
effect from time to time and (B) consistently applied with
past financial statements of the Parent adopting the same
principles, provided that in each case referred to in this
definition of "generally accepted accounting principles" a
certified public accountant would, insofar as the use of
such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a
qualification regarding changes in generally accepted
accounting principles) as to financial statements in which
such principles have been properly applied.
Guaranteed Obligations. See 5.1.
Guaranteed Pension Plan. Any employee pension
benefit plan within the meaning of 3(2) of ERISA
currently maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed
on termination in full or in part by the PBGC pursuant to
Title IV of ERISA, other than a Multiemployer Plan.
Hazardous Substances. See 6.18(b).
Indebtedness. With respect to the Borrower, the
Parent or any of their Subsidiaries and whether recourse
is secured by or is otherwise available against all or
only a portion of the assets of the Borrower, the Parent
or any of their Subsidiaries and whether or not
contingent, but without duplication:
(i) every obligation of the Borrower, the
Parent or any of their Subsidiaries for money
borrowed,
(ii) every obligation of the Borrower, the
Parent or any of their Subsidiaries evidenced by
bonds, debentures, notes or other similar
instruments, including obligations incurred in
connection with the acquisition of property, assets
or businesses,
(iii) every reimbursement obligation of the
Borrower, the Parent or any of their Subsidiaries
with respect to letters of credit, bankers'
acceptances or similar facilities issued for the
account of the Borrower, the Parent or any of their
Subsidiaries,
(iv) every obligation of the Borrower, the
Parent or any of their Subsidiaries issued or assumed
as the deferred purchase price of property or
services (including securities repurchase agreements
but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of
business which are not overdue or which are being
contested in good faith),
(v) every obligation of the Borrower, the
Parent or any of their Subsidiaries under any
Capitalized Lease,
(vi) every obligation of the Borrower, the
Parent or any of their Subsidiaries under any
Synthetic Lease,
(vii) all sales by the Borrower, the Parent or
any of their Subsidiaries of (A) accounts or general
intangibles for money due or to become due, (B)
chattel paper, instruments or documents creating or
evidencing a right to payment of money or (C) other
receivables (collectively "receivables"), whether
pursuant to a purchase facility or otherwise, other
than in connection with the disposition of the
business operations of the Borrower, the Parent or
any of their Subsidiaries relating thereto or a
disposition of defaulted receivables for collection
and not as a financing arrangement, and together with
any obligation of the Borrower, the Parent or any of
their Subsidiaries to pay any discount, interest,
fees, indemnities, penalties, recourse, expenses or
other amounts in connection therewith,
(viii) every obligation of the Borrower, the
Parent or any of their Subsidiaries (an "equity
related purchase obligation") to purchase, redeem,
retire or otherwise acquire for value any shares of
capital stock of any class issued by the Borrower,
the Parent or any of their Subsidiaries, any
warrants, options or other rights to acquire any such
shares, or any rights measured by the value of such
shares, warrants, options or other rights,
(ix) every obligation of the Borrower, the
Parent or any of their Subsidiaries under any forward
contract, futures contract, swap, option or other
financing agreement or arrangement (including,
without limitation, caps, floors, collars and similar
agreements), the value of which is dependent upon
interest rates, currency exchange rates, commodities
or other indices,
(x) every obligation in respect of Indebtedness
of any other entity (including any partnership in
which the Borrower, the Parent or any of their
Subsidiaries is a general partner) to the extent that
the Borrower, the Parent or any of their Subsidiaries
is liable therefor as a result of the ownership
interest of Borrower, the Parent or any of their
Subsidiaries in or other relationship with such
entity, except to the extent that the terms of such
Indebtedness provide that the Borrower, the Parent or
any of their Subsidiaries is not liable therefor and
such terms are enforceable under applicable law,
(xi) every obligation, contingent or otherwise,
of the Borrower, the Parent or any of their
Subsidiaries guaranteeing, or having the economic
effect of guarantying or otherwise acting as surety
for, any obligation of a type described in any of
clauses (i) through (x) (the "primary obligation") of
the Borrower, the Parent or any of their Subsidiaries
(the "primary obligor"), in any manner, whether
directly or indirectly, and including, without
limitation, any obligation of the Borrower, the
Parent or any of their Subsidiaries (A) to purchase
or pay (or advance or supply funds for the purchase
of) any security for the payment of such primary
obligation, (B) to purchase property, securities or
services for the purpose of assuring the payment of
such primary obligation, or (C) to maintain working
capital, equity capital or other financial statement
condition or liquidity of the primary obligor so as
to enable the primary obligor to pay such primary
obligation.
The "amount" or "principal amount" of any
Indebtedness at any time of determination represented by
(v) any Indebtedness, issued at a price that is less than
the principal amount at maturity thereof, shall be the
amount of the liability in respect thereof determined in
accordance with generally accepted accounting principles,
(w) any Capitalized Lease shall be the principal component
of the aggregate of the rentals obligation under such
Capitalized Lease payable over the term thereof that is
not subject to termination by the lessee, (x) any sale of
receivables shall be the amount of unrecovered capital or
principal investment of the purchaser (other than the
Borrower or any of its wholly-owned Subsidiaries) thereof,
excluding amounts representative of yield or interest
earned on such investment, (y) any Synthetic Lease shall
be the stipulated loss value, termination value or other
equivalent amount and (z) any equity related purchase
obligation shall be the maximum fixed redemption or
purchase price thereof inclusive of any accrued and unpaid
dividends to be comprised in such redemption or purchase
price.
Ineligible Securities. Securities which may not be
underwritten or dealt in by member banks of the Federal
Reserve System under Section 16 of the Banking Act of 1993
(12 U.S.C. 24, Seventh), as amended.
Interest Payment Date. (i) As to any Base Rate Loan,
the fifteenth day of each calendar month, (ii) as to any
Eurodollar Rate Loan in respect of which the Interest
Period is (A) 3 months or less, the last day of such
Interest Period, (B) more than 3 months but less than or
equal to 6 months, the date that is 3 months from the
first day of such Interest Period, and, in addition, the
last day of such Interest Period and (C) more than 6
months, the date that is 3 months from the first day of
such Interest Period, the date that is 6 months from the
first day of such Interest Period, and, in addition, the
last day of such Interest Period, and (iii) as to any
Competitive Loan, the last day of the Interest Period.
Interest Period. With respect to each Loan, (i)
initially, the period commencing on the Drawdown Date of
such Loan and ending on the last day of one of the periods
set forth below, as selected by the Borrower in a Loan
Request (A) for any Base Rate Loan, the last day of the
calendar month, (B) for any Eurodollar Rate Loan, 1, 2, 3,
4, 5, or 6 months and, with the prior written consent of
each of the Banks, 9 months, and (C) for any Competitive
Loan, overnight, 30, 60 or 90 days; and (ii) thereafter,
each period commencing on the last day of the next
preceding Interest Period applicable to such Loan and
ending on the last day of one of the periods set forth
above, as selected by the Borrower in a Conversion
Request; provided that all of the foregoing provisions
relating to Interest Periods are subject to the following:
(a) if any Interest Period with respect to a
Eurodollar Rate Loan would otherwise end on a day
that is not a Eurodollar Business Day, that Interest
Period shall be extended to the next succeeding
Eurodollar Business Day, unless the result of such
extension would be to carry such Interest Period into
another calendar month, in which event such Interest
Period shall end on the immediately preceding
Eurodollar Business Day;
(b) if any Interest Period with respect to a
Base Rate Loan would end on a day that is not a
Business Day, that Interest Period shall end on the
next succeeding Business Day;
(c) if any Interest Period with respect to a
Competitive Loan would end on a day that is not a
Business Day, that Interest Period shall end on the
next succeeding Business Day;
(d) if the Borrower shall fail to give notice
as provided in 2.7, the Borrower shall be deemed to
have requested a conversion of the affected
Eurodollar Rate Loan to a Base Rate Loan and the
continuance of all Base Rate Loans as Base Rate Loans
on the last day of the then current Interest Period
with respect thereto;
(e) any Interest Period that begins on the last
Eurodollar Business Day of a calendar month (or on a
day for which there is no numerically corresponding
day in the calendar month at the end of such Interest
Period) shall end on the last Eurodollar Business Day
of a calendar month; and
(f) any Interest Period relating to any
Eurodollar Rate Loan or Competitive Loan that would
otherwise extend beyond the Maturity Date shall end
on the Maturity Date.
Investments. All expenditures made and all
liabilities incurred (contingently or otherwise) for the
acquisition of stock or Indebtedness of, or for loans,
advances, capital contributions or transfers of property
to, or in respect of any guaranties (or other commitments
as described under Indebtedness), or obligations of, any
Person. In determining the aggregate amount of
Investments outstanding at any particular time: (i) the
amount of any Investment represented by a guaranty shall
be taken at not less than the principal amount of the
obligations guaranteed and still outstanding; (ii) there
shall be included as an Investment all interest accrued
with respect to Indebtedness constituting an Investment
unless and until such interest is paid; (iii) there shall
be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase,
redemption, retirement, repayment, liquidating dividend or
liquidating distribution); (iv) there shall not be
deducted in respect of any Investment any amounts received
as earnings on such Investment, whether as dividends,
interest or otherwise, except that accrued interest
included as provided in the foregoing clause (ii) may be
deducted when paid; and (v) there shall not be deducted
from the aggregate amount of Investments any decrease in
the value thereof.
Loan Documents. This Credit Agreement and the Notes.
Loan Request. See 2.6.
Loans. The Revolving Credit Loans and the
Competitive Loans.
Majority Banks. As of any date, the Banks holding at
least fifty-one percent (51%) of the outstanding principal
amount of the Notes on such date; and if no such principal
is outstanding, the Banks whose aggregate Commitments
constitutes at least fifty-one percent (51%) of the Total
Commitment. For purposes of determining the Majority
Banks, each outstanding Competitive Borrowing shall be
deemed to have been made by all of the Banks pro rata in
accordance with their respective Commitment Percentages;
provided, however, for purposes of declaring the Loans to
be due and payable pursuant to 12, and for all purposes
after the Loans become due and payable or the Total
Commitment expires or is terminated, Majority Banks shall
mean the Banks holding fifty-one percent (51%) of the
actual outstanding principal amount of the Notes on such
date.
Maturity Date. March 27, 2003.
Money Market Rate. The fixed rate of interest
(expressed in the form of a decimal to no more than four
decimal places) quoted by a Bank on the first day of any
Interest Period which rate such Bank is willing to charge
with respect to a Competitive Loan to be made by such Bank
during such Interest Period.
Multiemployer Plan. Any multiemployer plan within
the meaning of 3(37) of ERISA maintained or contributed
to by any of the Borrower, the Parent or any ERISA
Affiliate.
Note Record. A Record with respect to a Note.
Notes. See 2.4.
Obligations. All indebtedness, obligations and
liabilities of any of the Borrower, the Parent and any of
their Subsidiaries to any of the Banks and the Agent,
individually or collectively, existing on the date of this
Credit Agreement or arising thereafter, direct or
indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured
or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under this Credit Agreement
or any of the other Loan Documents or in respect of any of
the Loans or any of the Notes or other instruments at any
time evidencing any thereof.
Original Credit Agreement. As defined in the
preamble hereto.
Other Indebtedness. See 8.1(h).
outstanding. With respect to the Loans, the
aggregate unpaid principal thereof as of any date of
determination.
Parent. As defined in the preamble hereto.
PBGC. The Pension Benefit Guaranty Corporation
created by 4002 of ERISA and any successor entity or
entities having similar responsibilities.
Permitted Liens. Liens, security interests and other
encumbrances permitted by 8.2.
Person. Any individual, corporation, partnership,
trust, unincorporated association, business, or other
legal entity, and any government or any governmental
agency or political subdivision thereof.
Rating Agencies. Moody's Investors Services, Inc.
and Standard & Poor's Rating Group.
Real Estate. All real property at any time owned or
leased (as lessee or sublessee) by any of the Borrower,
the Parent or any of their Subsidiaries.
Record. The grid attached to a Note, or the
continuation of such grid, or any other similar record,
including computer records, maintained by any Bank with
respect to any Loan referred to in such Note.
Revolving Credit Loans. Revolving credit loans
(i.e., Base Rate Loans and Eurodollar Rate Loans) made or
to be made by the Banks to the Borrower pursuant to 2.
Section 20 Subsidiary. A Subsidiary of the bank
holding company controlling any Bank, which Subsidiary has
been granted authority by the Federal Reserve Board to
underwrite and deal in certain Ineligible Securities.
Subsidiary. Any corporation, association, trust,
partnership, joint venture, or other business entity of
which the designated parent shall at any time own directly
or indirectly through a Subsidiary or Subsidiaries at
least a majority (by number of votes) of the outstanding
Voting Stock.
Synthetic Lease. Any lease treated as an operating
lease under generally accepted accounting principles and
as a loan or financing for U.S. income tax purposes.
Total Commitment. The sum of the Commitments of the
Banks, as in effect from time to time.
Total Funded Debt. The principal amount of
Indebtedness for borrowed money (including obligations
under Capitalized Leases allocable to principal) of the
Parent and its Subsidiaries on a consolidated basis.
Type. As to any Revolving Credit Loan its nature as
a Base Rate Loan or a Eurodollar Rate Loan.
Voting Stock. Stock or similar interests, of any
class or classes (however designated), the holders of
which are at the time entitled, as such holders, to vote
for the election of a majority of the directors (or
persons performing similar functions) of the corporation,
association, trust, partnership, joint venture, or other
business entity involved, whether or not the right so to
vote exists by reason of the happening of a contingency.
Year 2000 Risk. The risk that computer applications
used by the Borrower, the Parent or any of their
Subsidiaries may be unable to recognize and properly
perform date-sensitive functions involving certain dates
prior to, and any date after, December 31, 1999.
1.2. Rules of Interpretation.
(a) A reference to any document or agreement
shall include such document or agreement as amended,
modified or supplemented from time to time in
accordance with its terms and the terms of this
Credit Agreement.
(b) The singular includes the plural and the
plural includes the singular.
(c) A reference to any law includes any
amendment or modification to such law.
(d) A reference to any Person includes its
permitted successors and permitted assigns.
(e) Accounting terms not otherwise defined
herein have the meanings assigned to them by
generally accepted accounting principles applied on a
consistent basis by the accounting entity to which
they refer.
(f) The words "include," "includes" and
"including" are not limiting.
(g) All terms not specifically defined herein
or by generally accepted accounting principles, which
terms are defined in the Uniform Commercial Code as
in effect in the Commonwealth of Massachusetts, have
the meanings assigned to them therein, with the term
"instrument" being that defined under Article 9 of
the Uniform Commercial Code.
(h) Reference to a particular " " refers to
that section of this Credit Agreement unless
otherwise indicated.
(i) The words "herein," "hereof," "hereunder"
and words of like import shall refer to this Credit
Agreement as a whole and not to any particular
section or subdivision of this Credit Agreement.
2. THE REVOLVING CREDIT FACILITY AND THE COMPETITIVE LOAN
FACILITY.
2.1. Commitment to Lend. Subject to the terms and
conditions set forth in this Credit Agreement, each of the
Banks severally agrees to lend to the Borrower and the
Borrower may borrow, repay, and reborrow from time to time
between the Closing Date and the Maturity Date upon notice
by the Borrower to the Administrative Agent given in
accordance with 2.6, such sums as are requested by the
Borrower up to a maximum aggregate principal amount
outstanding (after giving effect to all amounts requested)
at any one time not to exceed such Bank's Commitment minus
the sum of (i) the aggregate principal amount of such
Bank's outstanding Revolving Credit Loans and (ii) the
amount by which the Competitive Loans outstanding at such
time shall be deemed to have used such Commitment pursuant
to 2.9 hereof, provided that the sum of the outstanding
amount of the Revolving Credit Loans (after giving effect
to all amounts requested) plus the outstanding amount of
the Competitive Loans shall not at any time exceed the
Total Commitment. The Revolving Credit Loans shall be
made pro rata in accordance with each Bank's Commitment
Percentage. Each request for a Revolving Credit Loan
hereunder shall constitute a representation and warranty
by the Borrower that the conditions set forth in 10 and
11.1, in the case of any Loans made on or prior to the
Closing Date, and 11.1, in the case of all other Loans,
have been satisfied on the date of such request.
2.2. Facility Fee. The Borrower agrees to pay to
the Administrative Agent for the accounts of the Banks in
accordance with their respective Commitment Percentages a
facility fee (the "Facility Fee") calculated at a rate per
annum equal to the Facility Fee Rate determined as of the
last day of the calendar quarter for which such Facility
Fee is to be determined (or, in the case of Facility Fee
payments to be made prior the last day of the calendar
quarter, the Facility Fee Rate determined as of such date)
on the average daily amount during such calendar quarter
or portion thereof of the Total Commitment in effect
during such calendar quarter. The Facility Fee shall be
payable quarterly in arrears on the first day of each
calendar quarter for the immediately preceding calendar
quarter commencing on the first such date following the
date hereof, with a final payment on the Maturity Date or
any earlier date on which the Commitments shall terminate.
2.3. Reduction of Total Commitment. The Borrower
shall have the right at any time and from time to time
upon ten (10) Business Days prior written notice to the
Administrative Agent to reduce by $2,000,000 or integral
multiples of $1,000,000 in excess thereof or terminate
entirely the unborrowed portion of the Total Commitment,
whereupon the Commitments of the Banks shall be reduced
pro rata in accordance with their respective Commitment
Percentages of the amount specified in such notice or, as
the case may be, terminated. Promptly after receiving any
notice of the Borrower delivered pursuant to this 2.3,
the Administrative Agent will notify the Banks of the
substance thereof. Upon the effective date of any such
reduction or termination, the Borrower shall pay to the
Administrative Agent for the respective accounts of the
Banks the full amount of any Facility Fee then accrued on
the amount of the reduction. No reduction of the
Commitments may be reinstated.
2.4. The Notes. The Loans shall be evidenced by
separate promissory notes of the Borrower in substantially
the form of Exhibit A-1 or A-2 hereto (each a "Note"),
dated as of the Closing Date and completed with
appropriate insertions. One Note shall be payable to the
order of each Bank in a principal amount equal to such
Bank's Commitment or, if less, the aggregate outstanding
amount of all Revolving Credit Loans and Competitive Loans
made by such Bank, plus interest accrued thereon, as set
forth below. The Borrower irrevocably authorizes each
Bank to make or cause to be made, at or about the time of
the Drawdown Date of any Revolving Credit Loan or
Competitive Loan or at the time of receipt of any payment
of principal on such Bank's Note, an appropriate notation
on such Bank's Note Record reflecting the making of such
Revolving Credit Loan or Competitive Loan or (as the case
may be) the receipt of such payment. The outstanding
amount of the Revolving Credit Loans and Competitive Loans
set forth on such Bank's Note Record shall be prima facie
evidence of the principal amount thereof owing and unpaid
to such Bank, but the failure to record, or any error in
so recording, any such amount on such Bank's Note Record
shall not limit or otherwise affect the obligations of the
Borrower hereunder or under any Note to make payments of
principal of or interest on any Note when due.
2.5. Interest on Revolving Credit Loans and
Competitive Loans. Except as otherwise provided in 4.11,
(a) Each Base Rate Loan shall bear interest for
the period commencing with the Drawdown Date thereof
and ending on the last day of the Interest Period
with respect thereto at the Base Rate.
(b) Each Eurodollar Rate Loan shall bear
interest for the period commencing with the Drawdown
Date thereof and ending on the last day of the
Interest Period with respect thereto equal to the
Eurodollar Rate determined for such Interest Period
plus the Applicable Margin.
(c) Each Competitive Loan shall bear interest
for the period commencing with the Drawdown Date
thereof and ending on the last day of the Interest
Period with respect thereto at the Money Market Rate
offered by the Bank making such Competitive Loan and
accepted by the Borrower pursuant to 2.10 hereof.
(d) The Borrower promises to pay interest on
each Revolving Credit Loan and Competitive Loan in
arrears on each Interest Payment Date with respect
thereto. Each payment of interest on any Competitive
Borrowing shall be allocated pro rata among the Banks
participating in such Competitive Borrowing in
accordance with the respective amounts of accrued and
unpaid interest on their outstanding Competitive
Loans comprising such Competitive Borrowing.
2.6. Requests for Revolving Credit Loans. The
Borrower shall give to the Administrative Agent written
notice in the form of Exhibit C hereto (or telephonic
notice confirmed in a writing in the form of Exhibit C
hereto) of each Revolving Credit Loan requested hereunder
(a "Loan Request") (i) no later than 10:00 a.m. (Boston
time) on the proposed Drawdown Date of any Base Rate Loan,
and (ii) no less than three (3) Eurodollar Business Days
prior to the proposed Drawdown Date of any Eurodollar Rate
Loan. Each such notice shall specify (A) the principal
amount of the Revolving Credit Loan requested, (B) the
proposed Drawdown Date of such Revolving Credit Loan, (C)
the Interest Period for such Revolving Credit Loan and (D)
the Type of such Revolving Credit Loan. Promptly upon
receipt of any such notice, the Administrative Agent shall
notify each of the Banks thereof. Each such notice shall
be irrevocable and binding on the Borrower and shall
obligate the Borrower to accept the Revolving Credit Loan
requested from the Banks on the proposed Drawdown Date.
Each Loan Request shall be in a minimum aggregate amount
of $2,000,000 or integral multiples of $1,000,000 in
excess thereof.
2.7. Conversion Options for Revolving Credit
Loans.
2.7.1. Conversion to Different Type of
Revolving Credit Loan. The Borrower may elect from
time to time to convert any outstanding Revolving
Credit Loan to a Revolving Credit Loan of another
Type, provided that (i) with respect to any such
conversion of a Eurodollar Rate Loan to a Base Rate
Loan, the Borrower shall give the Administrative
Agent at least two (2) Business Days prior written
notice of such election, and such conversion shall
only be made on the last day of the Interest Period
with respect to such Eurodollar Rate Loan; (ii) with
respect to any such conversion of a Base Rate Loan to
a Eurodollar Rate Loan, the Borrower shall give the
Administrative Agent at least three (3) Eurodollar
Business Days prior written notice of such election
and (iii) no Loan may be converted into a Eurodollar
Rate Loan when any Default or Event of Default has
occurred and is continuing. On the date on which
such conversion is being made each Bank shall take
such action as is necessary to transfer its
Commitment Percentage of such Revolving Credit Loans
to its Domestic Lending Office or its Eurodollar
Lending Office, as the case may be. All or any part
of outstanding Revolving Credit Loans of any Type may
be converted as provided herein, provided that
partial conversions shall be in an aggregate
principal amount of $2,000,000 or integral multiples
of $1,000,000 in excess thereof. Each Conversion
Request relating to the conversion of a Base Rate
Loan to a Eurodollar Rate Loan shall be irrevocable
by the Borrower.
2.7.2. Continuation of Type of Revolving Credit
Loan. Any Revolving Credit Loans of any Type may be
continued as such upon the expiration of an Interest
Period with respect thereto by compliance by the
Borrower with the notice provisions contained in
2.7.1; provided that no Eurodollar Rate Loan may be
continued as such when any Default or Event of
Default has occurred and is continuing, but shall be
automatically converted to a Base Rate Loan on the
last day of the first Interest Period relating
thereto ending during the continuance of any Default
or Event of Default of which the officers of the
Administrative Agent active upon the Borrower's
account have actual knowledge. In the event that the
Borrower fails to provide any such notice with
respect to the continuation of any Eurodollar Rate
Loan as such, then such Eurodollar Rate Loan shall be
automatically converted to a Base Rate Loan on the
last day of the first Interest Period relating
thereto. The Administrative Agent shall notify the
Banks promptly when any such automatic conversion
contemplated by this 2.7 is scheduled to occur.
2.7.3. Eurodollar Rate Loans. Any conversion
to or from Eurodollar Rate Loans shall be in such
amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate
principal amount of all Eurodollar Rate Loans having
the same Interest Period shall not be less than
$1,000,000 or integral multiples of $100,000 in
excess thereof.
2.8. Funds for Revolving Credit Loans.
2.8.1. Funding Procedures. Not later than
11:00 a.m. (Boston time) on the proposed Drawdown
Date of any Revolving Credit Loans, each of the Banks
will make available to the Administrative Agent, at
the Administrative Agent's Head Office, in
immediately available funds, the amount of such
Bank's Commitment Percentage of the amount of the
requested Revolving Credit Loans. Upon receipt from
each Bank of such amount, and upon receipt of the
documents required by 10 and 11 and the
satisfaction of the other conditions set forth
therein, to the extent applicable, the Administrative
Agent will make available to the Borrower the
aggregate amount of such Revolving Credit Loans made
available to the Administrative Agent by the Banks.
The failure or refusal of any Bank to make available
to the Administrative Agent at the aforesaid time and
place on any Drawdown Date the amount of its
Commitment Percentage of the requested Revolving
Credit Loans shall not relieve any other Bank from
its several obligation hereunder to make available to
the Administrative Agent the amount of such other
Bank's Commitment Percentage of any requested
Revolving Credit Loans.
2.8.2. Advances by Administrative Agent. The
Administrative Agent may, unless notified to the
contrary by any Bank on or prior to a Drawdown Date,
assume that such Bank has made available to the
Administrative Agent on such Drawdown Date the amount
of such Bank's Commitment Percentage of the Revolving
Credit Loans to be made on such Drawdown Date, and
the Administrative Agent may (but it shall not be
required to), in reliance upon such assumption, make
available to the Borrower a corresponding amount. If
any Bank makes available to the Administrative Agent
such amount on a date after such Drawdown Date, such
Bank shall pay to the Administrative Agent on demand
an amount equal to the product of (i) the average
computed for the period referred to in clause (iii)
below, of the weighted average interest rate paid by
the Administrative Agent for federal funds acquired
by the Administrative Agent during each day included
in such period, times (ii) the amount of such Bank's
Commitment Percentage of such Revolving Credit Loans,
times (iii) a fraction, the numerator of which is the
number of days that elapse from and including such
Drawdown Date to the date on which the amount of such
Bank's Commitment Percentage of such Revolving Credit
Loans shall become immediately available to the
Administrative Agent, and the denominator of which is
365. A statement of the Administrative Agent
submitted to such Bank with respect to any amounts
owing under this paragraph shall be prima facie
evidence of the amount due and owing to the
Administrative Agent by such Bank. If the amount of
such Bank's Commitment Percentage of such Revolving
Credit Loans is not made available to the
Administrative Agent by such Bank within three (3)
Business Days following such Drawdown Date, the
Administrative Agent shall be entitled to recover
such amount from the Borrower on demand, with
interest thereon at the rate per annum applicable to
the Revolving Credit Loans made on such Drawdown
Date.
2.9. Pro Rata Treatment. For purposes of
determining the applicable available unused Commitments of
the respective Banks at any time, each outstanding
Competitive Borrowing shall be deemed to have utilized the
Commitments of the Banks (including those Banks which
shall not have made Competitive Loans as part of such
Competitive Borrowing) pro rata in accordance with such
respective Commitments.
2.10. Competitive Bid Procedures.
2.10.1. Competitive Loan Request. In order to
request Competitive Bids, the Borrower shall hand
deliver or telecopy (or communicate by telephone with
prompt confirmation in writing) to the Competitive
Bid Agent a duly completed Competitive Bid Request in
the form of Exhibit B-1 attached hereto, to be
received by the Competitive Bid Agent not later than
11:00 a.m. (Boston time) one (1) Business Day before
a proposed Competitive Borrowing. No Base Rate Loan
or Eurodollar Rate Loan shall be requested in, or
made pursuant to, a Competitive Bid Request. A
Competitive Bid Request that does not conform
substantially to the format of Exhibit B-1 attached
hereto may be rejected in the Competitive Bid Agent's
sole discretion, and the Competitive Bid Agent shall
promptly notify the Borrower of such rejection by
telecopier (or by telephone with prompt confirmation
in writing). Such request shall in each case refer
to this Credit Agreement and specify (i) the date of
such Competitive Borrowing (which shall be a Business
Day), (ii) the aggregate principal amount thereof
which shall be in a minimum principal amount of
$5,000,000 or a greater integral multiple of
$1,000,000 in excess thereof, and (iii) the Interest
Period or Periods with respect thereto (which may not
end after the Maturity Date). After its receipt of a
Competitive Bid Request that is not rejected as
aforesaid, the Competitive Bid Agent shall invite by
telecopier not later than 12:00 noon (Boston time) on
the date of the Competitive Bid Request, in the form
set forth in Exhibit B-2 attached hereto, the Banks
to bid, on the terms and conditions of this Credit
Agreement, to make Competitive Loans pursuant to the
Competitive Bid Request. Contemporaneously with the
transmission of each Competitive Bid Request, the
Borrower shall pay to the Competitive Bid Agent, for
the Competitive Bid Agent's own account, a work fee
in the amount of $750.
2.10.2. Bids by Banks. Each Bank may, in its
sole discretion, make one or more Competitive Bids to
the Borrower responsive to a Competitive Bid Request.
Each Competitive Bid by a Bank must be received by
the Competitive Bid Agent via telecopier, in the form
of Exhibit B-3 attached hereto, not later than
2:00 p.m. (Boston time) on the day of the Competitive
Bid Request. Multiple bids may be accepted by the
Competitive Bid Agent. Competitive Bids that do not
conform substantially to the format of Exhibit B-3
may be rejected by the Competitive Bid Agent, and the
Competitive Bid Agent shall notify the Bank making
such nonconforming bid of such rejection as soon as
practicable. Each Competitive Bid shall refer to
this Credit Agreement, give the identity of the Bank
making the bid, and specify (i) the principal amount
(which shall be in a minimum principal amount of
$2,000,000 or a greater integral multiple of
$1,000,000 in excess thereof and which may equal, but
not exceed, the entire principal amount of the
Competitive Borrowing requested by the Borrower) of
the Competitive Loan or Loans that the Bank is
willing to make to the Borrower, (ii) the Competitive
Bid Rate or Rates at which the Bank is prepared to
make the Competitive Loan or Loans and (iii) the
applicable Interest Period or Periods and the last
day thereof. If any Bank shall elect not to make a
Competitive Bid, such Bank shall so notify the
Competitive Bid Agent by telecopier not later than
2:00 p.m. (Boston time) on the day of the Competitive
Bid Request; provided, however, that failure by any
Bank to give such notice shall not cause such Bank to
be obligated to make any Competitive Loan as part of
such Competitive Borrowing. A Competitive Bid
submitted by a Bank pursuant to this 2.10.2 shall be
irrevocable. Each Competitive Bid may be greater
than the Commitment of the Bank giving the bid but
may not exceed the Total Commitment less all
outstanding Loans.
2.10.3. Notice to Borrower of Bids. The
Competitive Bid Agent shall notify the Borrower by
telecopier (or by telephone promptly confirmed in
writing by telecopier) not later than 3:00 p.m.
(Boston time) on the day of the Competitive Bid
Request of all the Competitive Bids made, the
Competitive Bid Rate and the principal amount of each
Competitive Loan in respect of which a Competitive
Bid was made and the identity of the Bank that made
each Competitive Bid. The Competitive Bid Agent
shall send a copy of all Competitive Bids to the
Borrower for its records as soon as practicable after
completion of the bidding process set forth in this
2.10.
2.10.4. Acceptance and Rejection of Bids. The
Borrower may in its sole and absolute discretion,
subject only to the provisions of this 2.10.4,
accept or reject any Competitive Bid referred to in
2.10.3 above. The Borrower shall notify the
Competitive Bid Agent by telephone, confirmed by
telecopier in the form of a Competitive Bid
Accept/Reject Letter, whether and to what extent it
has decided to accept or reject any or all of the
Competitive Bids referred to in 2.10.3 above, not
later than 4:00 p.m. (Boston time) on the day of the
Competitive Bid Request; provided, however, that (i)
the failure by the Borrower to give such notice shall
be deemed to be a rejection of all the Competitive
Bids referred to in 2.10.3 above, (ii) the Borrower
shall not accept a Competitive Bid made at a
particular Competitive Bid Rate if the Borrower has
decided to reject a Competitive Bid made at a lower
Competitive Bid Rate, (iii) the aggregate amount of
the Competitive Bids accepted by the Borrower shall
not exceed the principal amount specified in the
Competitive Bid Request, (iv) if the Borrower shall
accept a Competitive Bid or Competitive Bids made at
a particular Competitive Bid Rate but the amount of
such Competitive Bid or Competitive Bids shall cause
the total amount of Competitive Bids to be accepted
by the Borrower to exceed the amount specified in the
Competitive Bid Request, then the Borrower shall
accept a portion of such Competitive Bid or
Competitive Bids in an amount equal to the amount
specified in the Competitive Bid Request less the
amount of all other Competitive Bids accepted with
respect to such Competitive Bid Request, which
acceptance, in the case of multiple Competitive Bids
at such Competitive Bid Rate, shall be made pro rata
in accordance with the amount of each such
Competitive Bid at such Competitive Bid Rate, and (v)
except pursuant to clause (iv) above, no Competitive
Bid shall be accepted for a Competitive Loan unless
such Competitive Loan is in a minimum principal
amount of $2,000,000 or a greater multiple of
$1,000,000 in excess thereof; provided further,
however, that if a Competitive Loan must be in an
amount less than $2,000,000 because of the provisions
of clause (iv) above, such Competitive Loan may be
for a minimum of $500,000 or any integral multiple
thereof, and in calculating the pro rata allocation
of acceptances of portions of multiple Competitive
Bids at a particular Competitive Bid Rate pursuant to
clause (iv) above the amounts shall be rounded to
integral multiples of $500,000 in a manner which
shall be in the discretion of the Borrower. A notice
given by the Borrower pursuant to this 2.10.4 shall
be irrevocable.
2.10.5. Notification to Banks. The Competitive
Bid Agent shall promptly notify each bidding Bank
whether or not its Competitive Bid has been accepted
(and if so, in what amount, for what Interest Period
(if more than one Interest Period was offered by the
bidding Bank) and at what Competitive Bid Rate) by
telecopy sent by the Competitive Bid Agent, and each
successful bidding Bank will thereupon become bound,
subject to the other applicable conditions hereof, to
make available to the Borrower, in immediately
available funds, the Competitive Loan in respect of
which its Competitive Bid has been accepted by not
later than 11:00 a.m. (Boston time) on the requested
Drawdown Date of the Competitive Borrowing. The
Competitive Bid Agent shall also promptly notify the
Administrative Agent of the Competitive Bids that
have been accepted, the amounts thereof and the
Competitive Bid Rates and the Interest Period
applicable thereto.
2.10.6. Competitive Bid Agent as Bidder. If
the Competitive Bid Agent shall elect to submit a
Competitive Bid in its capacity as a Bank, it shall
submit such bid directly to the Borrower one quarter
of an hour earlier than the latest time at which the
other Banks are required to submit their bids to the
Competitive Bid Agent pursuant to 2.10.2 above. The
Competitive Bid Agent will in no event disclose the
terms of any Bank's Competitive Bid to any other
Bank; provided that following the acceptance or
rejection of Competitive Bids submitted in response
to any Competitive Bid Request, the Competitive Bid
Agent may at the request of any Bank disclose
information as to the range of the Competitive Bid
Rates at which Competitive Bids were submitted or
accepted.
2.10.7. Notices. All notices required by this
2.10 shall be given in accordance with 21 hereto.
3. REPAYMENT OF REVOLVING CREDIT LOANS AND COMPETITIVE
LOANS.
3.1. Maturity.
3.1.1. Revolving Credit Loans. The Borrower
promises to pay on the Maturity Date, and there shall
become absolutely due and payable on the Maturity
Date, all of the Revolving Credit Loans outstanding
on such date, together with any and all accrued and
unpaid interest and fees thereon.
3.1.2. Competitive Loans. The Borrower
promises to pay the outstanding balance of each
Competitive Loan (together with any and all accrued
and unpaid interest thereon) on the last day of the
Interest Period applicable to such Competitive Loan
and on the Maturity Date.
3.2. Mandatory Repayments of Revolving Credit
Loans. If at any time the sum of the outstanding amount
of the Revolving Credit Loans and the Competitive Loans
exceeds the Total Commitment, then the Borrower shall
immediately pay the amount of such excess to the
Administrative Agent for application to the Revolving
Credit Loans.
3.3. Optional Repayments of Revolving Credit
Loans. The Borrower shall have the right, at its
election, to repay the outstanding amount of the Revolving
Credit Loans, as a whole or in part, at any time without
penalty or premium, provided that the full or partial
prepayment of the outstanding amount of any Eurodollar
Rate Loans pursuant to this 3.3 may be made only on the
last day of the Interest Period relating thereto. The
Borrower shall give the Administrative Agent, no later
than 10:00 a.m., Boston time, at least three (3) Business
Days prior written notice, of any proposed repayment
pursuant to this 3.3 of Base Rate Loans, and four (4)
Eurodollar Business Days notice of any proposed repayment
pursuant to this 3.3 of Eurodollar Rate Loans, in each
case, specifying the proposed date of payment of Revolving
Credit Loans and the principal amount to be paid. Each
such partial prepayment of the Loans shall be in a minimum
amount of $2,000,000 or an integral multiple of $1,000,000
in excess thereof, shall be accompanied by the payment of
accrued interest on the principal repaid to the date of
payment and shall be applied first to the principal of
Base Rate Loans and then to the principal of Eurodollar
Rate Loans. Each partial prepayment shall be allocated
among the Banks, in proportion, as nearly as practicable,
to the respective unpaid principal amount of each Bank's
Revolving Credit Note, with adjustments to the extent
practicable to equalize any prior repayments not exactly
in proportion.
3.4. No Optional Repayments of Competitive
Loans. The Borrower shall not have any right to prepay
any Competitive Borrowing.
3.5. Method of Certain Prepayments and
Repayments. The Borrower may prepay any Revolving Credit
Loan in accordance with 3.3 hereof with the proceeds of a
Competitive Borrowing or repay any Competitive Loan in
accordance with 3.1.2 hereof with the proceeds of a
Revolving Credit Loan; provided, however, that (a) if the
principal amount of the Competitive Borrowing or Revolving
Credit Loan extended by a Bank is greater than the
principal amount extended by such Bank in the Revolving
Credit Loan being prepaid, or the Competitive Loan being
repaid, then such Bank shall pay such difference to the
Administrative Agent for distribution to the Banks
described in (b) below; (b) if the principal amount of the
Revolving Credit Loan extended by a Bank being prepaid, or
the Competitive Loan being repaid, is greater than the
principal amount of the Competitive Borrowing or Revolving
Credit Loan being extended by such Bank, the
Administrative Agent shall return the difference to such
Bank out of amounts received pursuant to (a) above; and
(c) to the extent any Bank fails to pay the Administrative
Agent amounts due from it pursuant to (a) above, any Loan
or portion thereof being prepaid, in the case of Revolving
Credit Loans, or repaid, in the case of Competitive Loans
with such amounts shall not be deemed so prepaid or
repaid, as applicable, in accordance with 3.3 or 3.1.2
hereof, as applicable, and, in each case, shall be payable
by the Borrower at the applicable time provided for in
this Credit Agreement.
4. CERTAIN GENERAL PROVISIONS.
4.1. Arrangement Fee. The Borrower agrees to pay to
the Arranger on the Closing Date an arrangement fee in the
amount set forth in the letter agreement regarding certain
fees dated as of March 27, 1998 (the "Fee Letter") between
the Borrower, the Parent, the Administrative Agent and the
Arranger.
4.2. Administrative Agent's Fee. The Borrower shall
pay to the Administrative Agent annually in advance, for
the Administrative Agent's own account, on the Closing
Date and on each anniversary of the Closing Date, an
Administrative Agent's fee in the amount set forth in the
Fee Letter dated as of March 27, 1998 between the
Borrower, the Parent, the Administrative Agent and the
Arranger.
4.3. Funds for Payments.
4.3.1. Payments to Administrative Agent. All
payments of principal, interest, Facility Fees and
any other amounts due hereunder or under any of the
other Loan Documents shall be made to the
Administrative Agent, for the respective accounts of
the Banks and the Administrative Agent, at the
Administrative Agent's Head Office or at such other
location in the Boston, Massachusetts area that the
Administrative Agent may from time to time designate,
in each case in immediately available funds.
4.3.2. No Offset, etc. All payments by the
Borrower hereunder and under any of the other Loan
Documents shall be made without setoff or
counterclaim and free and clear of and without
deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory
loans, restrictions or conditions of any nature now
or hereafter imposed or levied by any jurisdiction or
any political subdivision thereof or taxing or other
authority therein unless the Borrower is compelled by
law to make such deduction or withholding. If any
such obligation is imposed upon the Borrower with
respect to any amount payable by it hereunder or
under any of the other Loan Documents, the Borrower
will pay to the Administrative Agent, for the account
of the Banks or (as the case may be) the
Administrative Agent, on the date on which such
amount is due and payable hereunder or under such
other Loan Document, such additional amount in
Dollars as shall be necessary to enable the Banks or
the Administrative Agent to receive the same net
amount which the Banks or the Administrative Agent
would have received on such due date had no such
obligation been imposed upon the Borrower. The
Borrower will deliver promptly to the Administrative
Agent certificates or other valid vouchers for all
taxes or other charges deducted from or paid with
respect to payments made by the Borrower hereunder or
under such other Loan Document.
4.4. Computations. All computations of interest on
the Loans and of the Facility Fee and all other fees shall
be based on a 360-day year and paid for the actual number
of days elapsed. Except as otherwise provided in the
definition of the term "Interest Period" with respect to
Eurodollar Rate Loans, whenever a payment hereunder or
under any of the other Loan Documents becomes due on a day
that is not a Business Day, the due date for such payment
shall be extended to the next succeeding Business Day, and
interest shall accrue during such extension. The
outstanding amount of the Loans as reflected on the Note
Records from time to time shall be considered correct and
binding on the Borrower unless within fifteen (15)
Business Days after receipt of any notice by the
Administrative Agent or any of the Banks of such
outstanding amount, the Administrative Agent or such Bank
shall notify the Borrower to the contrary.
4.5. Inability to Determine Eurodollar Rate. In the
event, prior to the commencement of any Interest Period
relating to any Eurodollar Rate Loan, the Administrative
Agent shall determine that adequate and reasonable methods
do not exist for ascertaining the Eurodollar Rate that
would otherwise determine the rate of interest to be
applicable to any Eurodollar Rate Loan during any Interest
Period, the Administrative Agent shall forthwith give
notice of such determination (which shall be conclusive
and binding on the Borrower and the Banks) to the Borrower
and the Banks. In such event (i) any Loan Request or
Conversion Request with respect to Eurodollar Rate Loans
shall be automatically withdrawn and shall be deemed a
request for Base Rate Loans, (ii) each Eurodollar Rate
Loan will automatically, on the last day of the then
current Interest Period thereof, become a Base Rate Loan,
and (iii) the obligations of the Banks to make Eurodollar
Rate Loans shall be suspended until the Administrative
Agent determines that the circumstances giving rise to
such suspension no longer exist, whereupon the
Administrative Agent shall so notify the Borrower and the
Banks.
4.6. Illegality. Notwithstanding any other
provisions herein, if any present or future law,
regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank
to make or maintain Eurodollar Rate Loans, such Bank shall
forthwith give notice of such circumstances to the
Borrower and the other Banks and thereupon (i) the
commitment of such Bank to make Eurodollar Rate Loans or
convert Loans of another Type to Eurodollar Rate Loans
shall forthwith be suspended and (ii) such Bank's
Revolving Credit Loans then outstanding as Eurodollar Rate
Loans, if any, shall be converted automatically to Base
Rate Loans on the last day of each Interest Period
applicable to such Eurodollar Rate Loans or within such
earlier period as may be required by law. The Borrower
hereby agrees promptly to pay the Administrative Agent for
the account of such Bank, upon demand by such Bank, any
additional amounts necessary to compensate such Bank for
any costs incurred by such Bank in making any conversion
in accordance with this 4.6, including any interest or
fees payable by such Bank to lenders of funds obtained by
it in order to make or maintain its Eurodollar Loans
hereunder.
4.7. Additional Costs, etc. If any present or
future applicable law, which expression, as used herein,
includes statutes, rules and regulations thereunder and
interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged
with the administration or the interpretation thereof and
requests, directives, instructions and notices at any time
or from time to time hereafter made upon or otherwise
issued to any Bank or the Administrative Agent by any
central bank or other fiscal, monetary or other authority
(whether or not having the force of law), shall:
(a) subject any Bank or the Administrative
Agent to any tax, levy, impost, duty, charge, fee,
deduction or withholding of any nature with respect
to this Credit Agreement, the other Loan Documents,
such Bank's Commitment or the Loans (other than taxes
based upon or measured by the income or profits of
such Bank or the Administrative Agent), or
(b) materially change the basis of taxation
(except for changes in taxes on income or profits) of
payments to any Bank of the principal of or the
interest on any Loans or any other amounts payable to
any Bank or the Administrative Agent under this
Credit Agreement or the other Loan Documents, or
(c) impose or increase or render applicable
(other than to the extent specifically provided for
elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital
adequacy or other similar requirements (whether or
not having the force of law) against assets held by,
or deposits in or for the account of, or loans by, or
commitments of an office of any Bank, or
(d) impose on any Bank or the Administrative
Agent any other conditions or requirements with
respect to this Credit Agreement, the other Loan
Documents, the Loans, such Bank's Commitment, or any
class of loans or commitments of which any of the
Loans or such Bank's Commitment forms a part,
and the result of any of the foregoing clauses (a) through
(d) is:
(i) to increase the cost to any Bank of
making, funding, issuing, renewing, extending or
maintaining any of the Loans or such Bank's
Commitment, or
(ii) to reduce the amount of principal,
interest or other amount payable to such Bank or
the Administrative Agent hereunder on account of
such Bank's Commitment or any of the Loans, or
(iii) to require such Bank or the
Administrative Agent to make any payment or to
forego any interest or other sum payable
hereunder, the amount of which payment or
foregone interest or other sum is calculated by
reference to the gross amount of any sum
receivable or deemed received by such Bank or
the Administrative Agent from the Borrower
hereunder,
then, and in each such case, the Borrower will, no later
than fifteen (15) days after demand made by such Bank or
(as the case may be) the Administrative Agent at any time
and from time to time and as often as the occasion
therefor may arise, pay to such Bank or the Administrative
Agent such additional amounts as will be sufficient to
compensate such Bank or the Administrative Agent for such
additional cost, reduction, payment or foregone interest
or other sum.
4.8. Capital Adequacy. If after the date hereof any
Bank or the Administrative Agent determines that (i) the
adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not
having the force of law) regarding capital requirements
for banks or bank holding companies or any change in the
interpretation or application thereof by a court or
governmental authority with appropriate jurisdiction, or
(ii) compliance by such Bank or the Administrative Agent
or any corporation controlling such Bank or the
Administrative Agent with any law, governmental rule,
regulation, policy, guideline or directive (whether or not
having the force of law) of any such entity regarding
capital adequacy, has the effect of reducing the return on
such Bank's or the Administrative Agent's commitment with
respect to any Loans to a level below that which such Bank
or the Administrative Agent could have achieved but for
such adoption, change or compliance (taking into
consideration such Bank's on the Administrative Agent's
then existing policies with respect to capital adequacy
and assuming full utilization of such entity's capital) by
any amount deemed by such Bank or (as the case may be) the
Administrative Agent to be material, then such Bank or the
Administrative Agent may notify the Borrower of such fact.
To the extent that the amount of such reduction in the
return on capital is not reflected in the then applicable
interest rate, the Borrower agrees to pay such Bank or (as
the case may be) the Administrative Agent for the amount
of such reduction in the return on capital as and when
such reduction is determined upon presentation by such
Bank or (as the case may be) the Administrative Agent of a
certificate in accordance with 4.9 hereof. Each Bank
shall allocate such cost increases among its customers in
good faith and on an equitable basis.
4.9. Certificate. A certificate setting forth any
additional amounts payable pursuant to 4.7 or 4.8 and a
brief explanation of such amounts which are due, submitted
by any Bank or the Administrative Agent to the Borrower,
shall be conclusive, absent manifest error, that such
amounts are due and owing.
4.10. Indemnity. The Borrower agrees to indemnify
each Bank and to hold each Bank harmless from and against
any loss, cost or expense (including loss of anticipated
profits) that such Bank may sustain or incur as a
consequence of (i) default by the Borrower in payment of
the principal amount of or any interest on any Eurodollar
Rate Loans or Competitive Loans as and when due and
payable, including any such loss or expense arising from
interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain its Eurodollar Rate
Loans or Competitive Loans, as the case may be, (ii)
default by the Borrower in making a borrowing after the
Borrower has given (or is deemed to have given) a Loan
Request, Competitive Bid Request or a Conversion Request
relating thereto in accordance with 2.6, 2.7 or 2.10 or
(iii) the making of any payment of a Eurodollar Rate Loan,
Competitive Loan or the making of any conversion of any
Eurodollar Rate Loan to a Base Rate Loan on a day that is
not the last day of the applicable Interest Period with
respect thereto, including interest or fees payable by
such Bank to lenders of funds obtained by it in order to
maintain any such Loans.
4.11. Interest on Overdue Amounts. Overdue
principal and (to the extent permitted by applicable law)
interest on the Loans and all other overdue amounts
payable hereunder or under any of the other Loan Documents
shall bear interest compounded monthly and payable on
demand at a rate per annum equal to two percent (2%) above
the Base Rate until such amount shall be paid in full
(after as well as before judgment).
5. GUARANTY.
5.1. Guaranty. For value received and hereby
acknowledged and as an inducement to the Banks to make the
Loans available to the Borrower, the Parent hereby
unconditionally and irrevocably guarantees (i) the full
punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations of the
Borrower now or hereafter existing hereunder and under the
Notes and the other Loan Documents, whether for principal,
interest, fees, expenses, or otherwise, (ii) the strict
performance and observance by the Borrower of its
obligations under this Credit Agreement and the other Loan
Documents and of all agreements, warranties and covenants
applicable to the Borrower in this Credit Agreement; and
(iii) the strict performance of all such obligations under
this Credit Agreement and the other Loan Documents which
would become due but for the operation of the automatic
stay pursuant to 362(a) of the United States Bankruptcy
Code and the operation of 502(b) and 506(c) of the
United States Bankruptcy Code (such obligations
collectively being the "Guaranteed Obligations").
5.2. Guaranty Absolute. The Parent guarantees that
the Guaranteed Obligations will be paid strictly in
accordance with the terms hereof and of the Notes,
regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of
such terms or the rights of the Banks with respect
thereto. The liability of the Parent under this 5 with
regard to the Guaranteed Obligations of the Borrower shall
be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability
of this Credit Agreement with respect to the
Borrower (with regard to such Guaranteed
Obligations), the Notes of the Borrower, the
Loan Documents, or any other agreement or
instrument relating thereto;
(ii) any change in the time of, manner or
place of payment of, or in any other term of,
all or any of the Guaranteed Obligations of the
Borrower or any other amendment or waiver of or
any consent to departure from this Credit
Agreement (with regard to such Guaranteed
Obligations) or the Notes of the Borrower;
(iii) any exchange, release or
nonperfection of any collateral, or any release
or amendment or waiver of or consent to
departure from any other guaranty, for all or
any of the Guaranteed Obligations of the
Borrower;
(iv) any change in ownership of the
Borrower;
(v) any acceptance of any partial
payment(s) from the Borrower; or
(vi) any other circumstance which might
otherwise constitute a defense available to, or
a discharge of, the Borrower in respect of its
Guaranteed Obligations.
The obligations of the Parent contained in this 5
shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be
returned by the Banks upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, all as though
such payment had not been made.
5.3. Effectiveness; Enforcement. The guaranty
obligations of the Parent under this 5 shall be effective
and shall be deemed to be made with respect to each Loan
made to the Borrower as of the time it is made. No
invalidity, irregularity or unenforceability by reason of
any bankruptcy or similar law, or any law or order of any
government or agency thereof purporting to reduce, amend
or otherwise affect any liability of the Borrower, and no
defect in or insufficiency or want of powers of the
Borrower or irregular or improperly recorded exercise
thereof, shall impair, affect, be a defense to or claim
against such guaranty. The agreements of the Parent
contained in this 5 constitute a continuing guaranty and
shall (i) survive any termination of this Credit Agreement
and (ii) remain in full force and effect until payment in
full of, and performance of all Guaranteed Obligations and
all other amounts payable under this 5. The agreements
of the Parent contained in this 5 are made for the
benefit of the Banks and their successors and assigns, and
may be enforced from time to time as often as occasion
therefor may arise and without requirement on the part of
the Banks first to exercise any rights against the
Borrower or to exhaust any remedies available to them
against the Borrower or to resort to any other source or
means of obtaining payment of any of the said obligations
or to elect any other remedy.
5.4. Waivers. To the fullest extent permitted by
law, the Parent hereby irrevocably waives promptness,
diligence, presentment, demand, protest, notice of
acceptance and any other notice with respect to any of the
Guaranteed Obligations and this 5 and any requirement
that the Banks protect, secure, perfect or otherwise take
action to ensure any security interest or lien on any
property subject thereto or exhaust any right or take any
action against the Borrower or any other Person or any
collateral. The Parent also irrevocably waives, to the
fullest extent permitted by law, all defenses which at any
time may be available to it in respect of the Guaranteed
Obligations by virtue of any statute of limitations,
valuation, stay, moratorium law or other similar law now
or hereafter in effect.
5.5. Subrogation Waiver. Notwithstanding any term
contained herein to the contrary, the Parent hereby waives
all rights of subrogation, reimbursement, restitution,
contribution or indemnity against the Borrower, and will
not prove any claim in competition with the Administrative
Agent or the Banks in respect of any payment hereunder in
any bankruptcy, insolvency, or reorganization case or
proceedings of any nature.
6. REPRESENTATIONS AND WARRANTIES.
Each of the Borrower and the Parent represents and
warrants to the Banks and the Administrative Agent as
follows:
6.1. Corporate Authority.
6.1.1. Incorporation; Good Standing. (i) Each
of the Borrower and the Parent is a corporation, and
each of their Subsidiaries is a corporation,
partnership or joint venture, duly organized, validly
existing and in good standing under the laws of its
jurisdiction of organization, and (ii) each of the
Borrower, the Parent and their Subsidiaries (a) has
all requisite power to own its property and conduct
its business as now conducted and as presently
contemplated, and (b) is in good standing and is duly
authorized to do business in each jurisdiction where
such qualification is necessary except where a
failure to be so qualified would not have a
materially adverse effect on the business, assets or
financial condition of any of the Borrower or the
Parent individually, or the Borrower, the Parent and
their Subsidiaries taken as a whole.
6.1.2. Authorization. The execution, delivery
and performance of this Credit Agreement and the
other Loan Documents to which the Borrower, the
Parent or any of their Subsidiaries is or is to
become a party and the transactions contemplated
hereby and thereby (i) are within the corporate
authority of such Person, (ii) have been duly
authorized by all necessary corporate proceedings,
(iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule
or regulation to which any of the Borrower, the
Parent or any of their Subsidiaries is subject or any
judgment, order, writ, injunction, license or permit
applicable to any of the Borrower, the Parent or any
of their Subsidiaries and (iv) do not conflict with
any provision of the corporate charter or bylaws of,
or any agreement or other instrument binding upon,
any of the Borrower, the Parent or any of their
Subsidiaries or any of their respective properties.
6.1.3. Enforceability. The execution and
delivery of this Credit Agreement and the other Loan
Documents to which the Borrower, the Parent or any of
their Subsidiaries is or is to become a party will
result in valid and legally binding obligations of
such Person enforceable against it in accordance with
the respective terms and provisions hereof and
thereof, except as enforceability is limited by
bankruptcy, insolvency, reorganization, moratorium or
other laws relating to or affecting generally the
enforcement of creditors' rights and except to the
extent that availability of the remedy of specific
performance or injunctive relief is subject to the
discretion of the court before which any proceeding
therefor may be brought.
6.2. Governmental Approvals. The execution,
delivery and performance by the Borrower, the Parent and
any of their Subsidiaries of this Credit Agreement and the
other Loan Documents to which such Person is or is to
become a party and the transactions contemplated hereby
and thereby do not require the approval or consent of, or
filing with, any governmental agency or authority other
than those already obtained.
6.3. Title to Properties; Leases. Except as
indicated on Schedule 6.3 hereto, the Borrower, the Parent
and their Subsidiaries own all of the assets reflected in
the consolidated balance sheet of the Parent and its
Subsidiaries as at the Balance Sheet Date or acquired
since that date (except property and assets sold or
otherwise disposed of in the ordinary course of business
since that date and other dispositions permitted pursuant
to 8.5.2 hereof), subject to no rights of others,
including any mortgages, leases, conditional sales
agreements, title retention agreements, liens or other
encumbrances except Permitted Liens.
6.4. Fiscal Year and Financial Statements.
6.4.1. Fiscal Year. The Borrower and each of
its Subsidiaries has a fiscal year which is the
twelve months ending on June 30 of each calendar
year, or such other date if there is a change in
fiscal year end pursuant to 7.5.4.
6.4.2. Financial Statements. There has been
furnished to the Administrative Agent a consolidated
balance sheet of the Parent and its Subsidiaries as
at the Balance Sheet Date, and a consolidated
statement of income for the fiscal year then ended,
certified by the Parent's independent certified
public accountants. Such balance sheet and statement
of income have been prepared in accordance with
generally accepted accounting principles and fairly
present in all material respects the financial
condition of the Parent and its Subsidiaries as at
the close of business on the date thereof and the
results of operations for the fiscal year then ended.
There are no contingent liabilities of any of the
Borrower, the Parent or any of their Subsidiaries as
of such date involving material amounts, known to the
officers of the Borrower or the Parent not disclosed
in said balance sheet and the related notes thereto.
6.5. No Material Changes, etc. As of the Balance
Sheet Date and the first Drawdown Date, there has occurred
no materially adverse change in the financial condition or
business of any of the Borrower, the Parent or their
Subsidiaries as shown on or reflected in the consolidated
balance sheet of the Parent and its Subsidiaries as at the
Balance Sheet Date, or the consolidated statement of
income for the fiscal year then ended, other than changes
in the ordinary course of business that have not had any
materially adverse effect either individually or in the
aggregate on the business or financial condition of the
Borrower or the Parent, or of the Parent and its
Subsidiaries taken as a whole. Since the Balance Sheet
Date and prior to the Closing Date, neither the Borrower
nor the Parent has made any Distribution other than
dividends paid by the Parent in September 1997, December
1997 and March 1998.
6.6. Franchises, Patents, Copyrights, etc. Each of
the Borrower, the Parent and their Subsidiaries possesses
all material franchises, patents, copyrights, trademarks,
trade names, licenses and permits, and rights in respect
of the foregoing, adequate for the conduct of its business
substantially as now conducted without known conflict with
any rights of others.
6.7. Litigation. Except as provided in Schedule 6.7
hereto, there are no actions, suits, proceedings or
investigations of any kind pending or threatened in
writing against any of the Borrower, the Parent or any of
their Subsidiaries before any court, tribunal or
administrative agency or board that, if adversely
determined, might, either in any case or in the aggregate,
materially adversely affect the properties, assets,
financial condition or business of the Borrower, the
Parent and their Subsidiaries taken as a whole or
materially impair the right of the Borrower, the Parent
and their Subsidiaries, considered as a whole, to carry on
business substantially as now conducted by them, or for
which adequate reserves are not maintained on the
consolidated balance sheet of the Parent and its
Subsidiaries, or which question the validity of this
Credit Agreement or any of the other Loan Documents, or
any action taken or to be taken pursuant hereto or
thereto.
6.8. No Materially Adverse Contracts, etc. Neither
the Borrower nor the Parent nor any of their Subsidiaries
is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or
regulation that has or is expected in the future to have a
materially adverse effect on the business, assets or
financial condition of any of the Borrower, the Parent or
any of their Subsidiaries. Neither the Borrower nor the
Parent nor any of their Subsidiaries is a party to any
contract or agreement that has or is expected, in the
judgment of the Borrower's or the Parent's officers, to
have any materially adverse effect on the business of any
of the Borrower, the Parent or any of their Subsidiaries.
6.9. Compliance With Other Instruments, Laws,
etc. Neither the Borrower nor the Parent nor any of their
Subsidiaries is in violation of any provision of its
charter documents, bylaws, or any agreement or instrument
to which it may be subject or by which it or any of its
properties may be bound or any decree, order, judgment,
statute, license, rule or regulation, in any of the
foregoing cases in a manner that could materially
adversely affect the financial condition, properties or
business of any of the Borrower, the Parent or the Parent
and its Subsidiaries taken as a whole.
6.10. Tax Status. Each of the Borrower, the Parent
and their Subsidiaries (i) has made or filed all material
federal and state income and all other tax returns,
reports and declarations required by any jurisdiction to
which any of them is subject, (ii) has paid all material
taxes and other governmental assessments and charges shown
or determined to be due on such returns, reports and
declarations, except those being contested in good faith
and by appropriate proceedings and (iii) has set aside on
its books provisions reasonably adequate for the payment
of all material taxes for periods subsequent to the
periods to which such returns, reports or declarations
apply. There are no unpaid taxes in any material amount
claimed to be due by the taxing authority of any
jurisdiction, and the respective officers of each of the
Borrower and the Parent know of no basis for any such
claim.
6.11. No Event of Default. No Default or Event of
Default has occurred and is continuing.
6.12. Holding Company and Investment Company
Acts. Neither the Borrower nor the Parent nor any of
their Subsidiaries is a "holding company," or a
"subsidiary company" of a "holding company," or an
affiliate" of a "holding company," as such terms are
defined in the Public Utility Holding Company Act of 1935;
nor is it an "investment company," or an "affiliated
company" or a "principal underwriter" of an "investment
company," as such terms are defined in the Investment
Company Act of 1940.
6.13. Absence of Financing Statements, etc. Except
with respect to Permitted Liens and except as set forth on
Schedule 6.13 attached hereto, as of the Closing Date in
respect of all active domestic operations of the Borrower
and the Parent there is no financing statement, security
agreement, chattel mortgage, real estate mortgage or other
document filed or recorded with any filing records,
registry, or other public office, that purports to cover,
affect or give notice of any present or possible future
lien on, or security interest in, any assets or property
of any of the Borrower, the Parent or any of their
Subsidiaries or rights relating thereto which would have a
material adverse effect on the business, assets, property
or financial condition of any of the Borrower, the Parent
or any of their Subsidiaries.
6.14. Certain Transactions. Except for arm's length
transactions pursuant to which the Borrower, the Parent or
any of their Subsidiaries makes payments in the ordinary
course of business upon terms no less favorable than such
Person could obtain from third parties and except for
payment of certain legal fees of a voting trust for the
Horne family stock, and payment of expenses for
preparation of tax returns of certain officers and
directors of the Parent and its Subsidiaries and other
transactions between the Borrower and the Parent or any of
their Subsidiaries deemed by management of the Borrower
and the Parent in good faith to be beneficial to the
Borrower and the Parent, none of the officers, directors,
employees or Affiliates of any of the Borrower, the Parent
or any of their Subsidiaries is presently a party to any
transaction with any of the Borrower, the Parent or any of
their Subsidiaries (other than for services as employees,
officers and directors), including any contract, agreement
or other arrangement providing for the furnishing of
services to or by, providing for rental of real or
personal property to or from, or otherwise requiring
payments to or from any officer, director, Affiliate or
any such employee or, to the knowledge of the Borrower or
the Parent or any of their Subsidiaries, any corporation,
partnership, trust or other entity in which any officer,
director, Affiliate or any such employee has a substantial
interest or is an officer, director, trustee or partner.
6.15. Employee Benefit Plans.
6.15.1. In General. Each Employee Benefit Plan
has been maintained and operated in compliance in all
material respects with the provisions of ERISA and,
to the extent applicable, the Code, including but not
limited to the provisions thereunder respecting
prohibited transactions and the bonding of
fiduciaries and other persons handling plan funds as
required by 412 of ERISA. Each of the Borrower and
the Parent has heretofore delivered to the
Administrative Agent the most recently completed
annual report, Form 5500, with all required
attachments, and actuarial statement required to be
submitted under 103(d) of ERISA, with respect to
each Guaranteed Pension Plan.
6.15.2. Terminability of Welfare Plans. Under
each Employee Benefit Plan which is an employee
welfare benefit plan within the meaning of 3(1) or
3(2)(B) of ERISA, no benefits are due unless the
event giving rise to the benefit entitlement occurs
prior to plan termination (except as required by
Title I, Part 6 of ERISA). Each of the Borrower, the
Parent or an ERISA Affiliate thereof, as appropriate,
may terminate each such Plan at any time (or at any
time subsequent to the expiration of any applicable
bargaining agreement) in the discretion of the
Borrower, the Parent or such ERISA Affiliate, as the
case may be, without liability to any Person other
than those liabilities relating to events occurring
prior to termination.
6.15.3. Guaranteed Pension Plans. Each
contribution required to be made to a Guaranteed
Pension Plan, whether required to be made to avoid
the incurrence of an accumulated funding deficiency,
the notice or lien provisions of 302(f) of ERISA, or
otherwise, has been timely made. No waiver of an
accumulated funding deficiency or extension of
amortization periods has been received with respect
to any Guaranteed Pension Plan, and neither the
Borrower nor any ERISA Affiliate is obligated to or
has posted security in connection with an amendment
to a Guaranteed Pension Plan pursuant to 307 of
ERISA of 401(a)(29) of the Code. No liability to
the PBGC (other than required insurance premiums, all
of which have been paid) has been incurred by any of
the Borrower, the Parent or any ERISA Affiliate
thereof with respect to any Guaranteed Pension Plan
and there has not been any ERISA Reportable Event, or
any other event or condition which presents a
material risk of termination of any Guaranteed
Pension Plan by the PBGC. Based on the latest
valuation of each Guaranteed Pension Plan (which in
each case occurred within twelve months of the date
of this representation), and on the actuarial methods
and assumptions employed for that valuation, the
aggregate benefit liabilities of all Guaranteed
Pension Plans within the meaning of 4001 of ERISA
did not exceed the aggregate value of the assets of
all Guaranteed Pension Plans, disregarding for this
purpose the benefit liabilities and assets of any
Guaranteed Pension Plan with assets in excess of
benefit liabilities, by more than $2,500,000.
6.15.4. Multiemployer Plans. Neither the
Borrower nor the Parent nor any ERISA Affiliate
thereof has incurred any material liability
(including secondary liability) to any Multiemployer
Plan as a result of a complete or partial withdrawal
from such Multiemployer Plan under 4201 of ERISA or
as a result of a sale of assets described in 4204 of
ERISA. Neither the Borrower nor the Parent nor any
ERISA Affiliate thereof has been notified that any
Multiemployer Plan is in reorganization or insolvent
under and within the meaning of 4241 or 4245 of
ERISA or that any Multiemployer Plan intends to
terminate or has been terminated under 4041A of
ERISA.
6.16. Regulations U and X. The proceeds of the
Loans shall be used for working capital and general
corporate purposes of the Borrower, the Parent and their
Subsidiaries, including acquisitions permitted by 8.5.1
hereof. No portion of any Loan is to be used for the
purpose of purchasing or carrying any "margin security" or
"margin stock" as such terms are used in Regulations U and
X of the Board of Governors of the Federal Reserve System,
12 C.F.R. Parts 221 and 224.
6.17. Ineligible Securities. No portion of the
proceeds of any Loans is to be used for the purpose of (a)
knowingly purchasing, or providing credit support for the
purchase of, Ineligible Securities from a Section 20
Subsidiary during any period in which such Section 20
Subsidiary makes a market in such Ineligible Securities,
(b) knowingly purchasing, or providing credit support for
the purchase of, during the underwriting or placement
period, any Ineligible Securities being underwritten or
privately placed by a Section 20 Subsidiary, or (c)
making, or providing credit support for the making of,
payments of principal or interest on Ineligible Securities
underwritten or privately placed by a Section 20
Subsidiary and issued by or for the benefit of the
Borrower or any Subsidiary or other Affiliate of the
Borrower.
6.18. Environmental Compliance. Except as set forth
on Schedule 6.18 attached hereto, each of Borrower and the
Parent has taken all commercially reasonable steps
(determined as of the time of investigation) to
investigate the past and present condition and usage of
the Real Estate and the operations conducted thereon and,
based upon such diligent investigation, has determined
that:
(a) neither the Borrower nor the Parent nor any
of their Subsidiaries nor any operation on the Real
Estate is in violation, or alleged violation, of any
judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters,
including without limitation, those arising under the
Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation
and Liability Act of 1980 as amended ("CERCLA"), the
Superfund Amendments and Reauthorization Act of 1986
("SARA"), the Federal Clean Water Act, the Federal
Clean Air Act, the Toxic Substances Control Act, or
any state or local statute, regulation, ordinance,
order or decree relating to health, safety or the
environment (hereinafter "Environmental Laws"), which
violation could reasonably be expected to have a
material adverse effect on the environment or the
business, assets or financial condition of the
Borrower, the Parent and their Subsidiaries taken as
a whole;
(b) neither the Borrower nor the Parent nor any
of their Subsidiaries has received notice from any
third party including, without limitation, any
federal, state or local governmental authority, (i)
that any one of them has been identified by the
United States Environmental Protection Agency ("EPA)
as a potentially responsible party under CERCLA with
respect to a site listed on the National Priorities
List, 40 C.F.R. Part 300 Appendix B; (ii) that any
hazardous waste, as defined by 42 U.S.C. 6903(5),
any hazardous substances as defined by 42 U.S.C.
9601(14), any pollutant or contaminant as defined by
42 U.S.C. 9601(33) and any toxic substances, oil or
hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous
Substances") which any one of them has generated,
transported or disposed of has been found at any site
at which a federal, state or local agency or other
third party has conducted or has ordered that any of
the Borrower, the Parent or any of their Subsidiaries
conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or
(iii) that it is or shall be a named party to any
claim, action, cause of action, complaint, or legal
or administrative proceeding (in each case,
contingent or otherwise) arising out of any third
party's incurrence of costs, expenses, losses or
damages of any kind whatsoever in connection with the
release of Hazardous Substances, liability for which
could reasonably be expected to have a material
adverse effect on the business, assets or financial
condition of the Borrower, the Parent and their
Subsidiaries, taken as a whole;
(c) (i) to the best of the Borrower's, the
Parent's and their Subsidiaries' knowledge, no
portion of the Real Estate has been used for the
handling, processing, storage or disposal of
Hazardous Substances except in material compliance
with applicable Environmental Laws; (ii) in the
course of any activities conducted by any of the
Borrower, the Parent, any of their Subsidiaries or to
the best knowledge of the executive officers of the
Borrower or the Parent without independent
investigation, operators of their properties, no
Hazardous Substances have been generated or are being
used on the Real Estate except in material compliance
with applicable Environmental Laws; (iii) there have
been no releases (i.e. any past or present releasing,
spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, disposing
or dumping) or threatened releases of Hazardous
Substances on, upon, into or from the properties of
any of the Borrower, the Parent or any of their
Subsidiaries, which releases or threatened releases
could reasonably be expected have a material adverse
effect on the value of any of the Real Estate or
adjacent properties; (iv) to the best of the
Borrower's and the Parent's knowledge, there have
been no releases on, upon, from or into any real
property in the vicinity of any of the Real Estate
which, through soil or groundwater contamination, may
have come to be located on, and which would have a
material adverse effect on the value of, the Real
Estate; and (v) in addition, any Hazardous Substances
that have been generated on any of the Real Estate
have been managed or disposed of in material
compliance with applicable Environmental Laws, and,
to the best of the Borrower's, the Parent's, and
their Subsidiaries' knowledge, without independent
investigation, the transporters and facilities
utilized by the Parent, the Borrower, or any of their
Subsidiaries to transport or dispose of such Person's
Hazardous Substances have not failed to operate in
compliance with any permits authorizing such
activities and are not in material violation of any
applicable Environmental Laws; and
(d) neither the Borrower nor the Parent nor any
of their Subsidiaries nor any of the Real Estate is
subject, by virtue of the transactions set forth
herein and contemplated hereby, to any applicable
environmental law requiring the performance of
Hazardous Substances site assessments, or the removal
or remediation of Hazardous Substances, or the giving
of notice to any governmental agency or the recording
or delivery to other Persons of an environmental
disclosure document or statement.
6.19. Subsidiaries, etc. Schedule 6.19 sets forth
all of the Subsidiaries of each of the Parent and the
Borrower. Except as set forth on Schedule 6.19 hereto,
neither the Borrower nor the Parent nor any of their
Subsidiaries is engaged in any joint venture or
partnership with any other person.
6.20. Disclosure. None of this Credit Agreement or
any of the other Loan Documents contains any untrue
statement of a material fact or omits to state a material
fact (known to the Borrower, the Parent or any of their
Subsidiaries in the case of any document or information
not furnished by the Borrower, the Parent or any of their
Subsidiaries) necessary in order to make the statements
herein or therein not misleading. To the best of the
Borrower's, the Parent's and their Subsidiaries'
knowledge, there is no fact known to the Borrower, the
Parent or any of their Subsidiaries which materially
adversely affects, nor, so far as the Borrower, the Parent
and their Subsidiaries can now foresee, is reasonably
likely in the future to materially adversely affect, the
business, assets, financial condition or prospects of the
Borrower, the Parent or any of their Subsidiaries, taken
as a whole, exclusive of effects resulting from changes in
general economic conditions, legal standards or regulatory
conditions.
6.21. Year 2000 Compliance. The Borrower, the
Parent and their Subsidiaries have reviewed the major
areas within their businesses and operations which could
be adversely affected by, and have developed or are
developing programs to address on a timely basis, the Year
2000 Risk. Based on such review and program, the Year
2000 Risk should not have a materially adverse effect on
their businesses and operations.
7. AFFIRMATIVE COVENANTS OF THE BORROWER AND THE
PARENT.
Each of Borrower and the Parent covenants and agrees
that, so long as any Obligation or Note is outstanding or
any Bank has any obligation to make any Loans:
7.1. Punctual Payment. Each of the Borrower and the
Parent will duly and punctually pay or cause to be paid
the principal and interest on the Loans and the Facility
Fee and Administrative Agent's fee provided for in this
Credit Agreement, all in accordance with the terms of this
Credit Agreement and the Notes.
7.2. Maintenance of Office. The Borrower and the
Parent will each maintain its chief executive office in
Wilmington, Delaware and North Andover, Massachusetts,
respectively, or at such other place in the United States
of America as such Person shall designate upon written
notice to the Administrative Agent, where notices,
presentations and demands to or upon such Person in
respect of the Loan Documents may be given or made.
7.3. Records and Accounts. Each of the Borrower and
the Parent will (i) keep, and cause each of its
Subsidiaries to keep, true and accurate records and books
of account in which full, true and correct entries will be
made in accordance with generally accepted accounting
principles, (ii) maintain adequate accounts and reserves
for all taxes (including income taxes), depreciation,
depletion, obsolescence and amortization of its properties
and the properties of its Subsidiaries, contingencies, and
other reserves, all in accordance with generally accepted
accounting principles, and (iii) at all times engage KPMG
Peat Marwick, any other of the six largest firms of
independent certified public accountants located in the
United States, or other independent certified public
accountants approved by the Administrative Agent which
approval shall not be unreasonably withheld, as the
independent certified public accountants of the Borrower
and its Subsidiaries and will not permit more than thirty
(30) days to elapse between the cessation of such firm's
(or any successor firm's) engagement as the independent
certified public accountants of the Borrower and its
Subsidiaries and the appointment in such capacity of a
successor firm as shall be satisfactory to the
Administrative Agent.
7.4. Financial Statements, Certificates and
Information. Each of the Borrower and the Parent will
deliver to the Administrative Agent and the Banks:
(a) as soon as practicable, but in any event
not later than ninety (90) days after the end of each
fiscal year of the Parent, the consolidated balance
sheet of the Parent and its Subsidiaries, each as at
the end of such year, and the related consolidated
statement of income and consolidated statement of
cash flow for such year, each setting forth in
comparative form the figures for the previous fiscal
year and all such consolidated statements to be in
reasonable detail, prepared in accordance with
generally accepted accounting principles, and
certified without qualification by KPMG Peat Marwick
or any other of the six largest firms of independent
certified public accountants located in the United
States, together with a written statement from such
accountants to the effect that they have read the
covenants set forth in 8.1(h), 8.3(i) and (j) and 9
of this Credit Agreement and the relevant definitions
and provisions applicable thereto, and that, in
making the examination necessary to said
certification, they have obtained no knowledge of any
Default or Event of Default, or, if such accountants
shall have obtained knowledge of any then existing
Default or Event of Default they shall disclose in
such statement any such Default or Event of Default;
provided that such accountants shall not be liable to
the Banks for failure to obtain knowledge of any
Default or Event of Default;
(b) as soon as practicable, but in any event
not later than forty-five (45) days after the end of
each of the fiscal quarters of the Parent (other than
the fourth fiscal quarter of each fiscal year),
copies of the unaudited consolidated balance sheet of
the Parent and its Subsidiaries, each as at the end
of such quarter, and the related consolidated
statement of income and consolidated statement of
cash flow for the portion of the Parent's fiscal year
then elapsed, all in reasonable detail and prepared
in accordance with generally accepted accounting
principles (subject to customary exceptions for
interim financial statements), together with a
certification by the principal financial or
accounting officer of the Parent that the information
contained in such financial statements fairly
presents the financial position of the Parent and its
Subsidiaries on the date thereof (subject to year-end
adjustments);
(c) simultaneously with the delivery of the
financial statements referred to in subsections (a)
and (b) above, a statement certified by the principal
financial or accounting officer of each of the
Borrower and the Parent in substantially the form of
Exhibit D hereto and setting forth in reasonable
detail computations evidencing compliance with the
covenants contained in 9 and (if applicable)
reconciliations to reflect changes in generally
accepted accounting principles since the Balance
Sheet Date;
(d) promptly following the filing or mailing
thereof, copies of all material of a financial nature
filed with the Securities and Exchange Commission or
sent generally to the stockholders of the Borrower;
and
(e) from time to time such other financial data
and information (including accountants' management
letters) as the Administrative Agent or any Bank may
reasonably request.
7.5. Notices.
7.5.1. Defaults. The Borrower will promptly
notify the Administrative Agent and each of the Banks
in writing of the occurrence of any Default or Event
of Default. If any Person shall give any notice or
take any other action in respect of a claimed default
(whether or not constituting an Event of Default)
under this Credit Agreement or any other note,
evidence of indebtedness, indenture or other
obligation to which or with respect to which any of
the Borrower, the Parent or any of their Subsidiaries
is a party or obligor, whether as principal or
surety, the Borrower shall forthwith give written
notice thereof to each of the Banks, describing the
notice or action and the nature of the claimed
default.
7.5.2. Environmental Events. Each of the
Borrower and the Parent will, and will cause each of
its Subsidiaries to, promptly give notice to the
Administrative Agent (i) of any violation of any
Environmental Law that any of the Borrower, the
Parent or any of their Subsidiaries reports in
writing or is reportable by such Person in writing
(or for which any written report supplemental to any
oral report is made) to any federal, state or local
environmental agency and (ii) upon becoming aware
thereof, of any inquiry, proceeding, investigation,
or other action, including a notice from any agency
of potential environmental liability, or any federal,
state or local environmental agency or board, that
has the potential to materially affect the assets,
liabilities, financial conditions or operations of
the Borrower, the Parent and their Subsidiaries,
taken as a whole.
7.5.3. Notice of Litigation and
Judgments. Each of the Borrower and the Parent will,
and will cause each of its Subsidiaries to, give
notice to the Administrative Agent in writing within
fifteen (15) days of becoming aware of any litigation
or proceedings threatened in writing or any pending
litigation and proceedings affecting any of the
Borrower, the Parent or any of their Subsidiaries or
to which any of the Borrower, the Parent or any of
their Subsidiaries is or becomes a party involving an
uninsured claim against any of the Borrower, the
Parent or any of their Subsidiaries that could
reasonably be expected to have a materially adverse
effect on any of the Borrower, the Parent or any of
their Subsidiaries and stating the nature and status
of such litigation or proceedings. Each of the
Borrower and the Parent will, and will cause each of
their Subsidiaries to, give notice to the
Administrative Agent, in writing, in form and detail
satisfactory to the Administrative Agent, within ten
(10) days of any judgment not covered by insurance,
final or otherwise, against any of the Borrower, the
Parent or any of their Subsidiaries in an amount in
excess of $5,000,000.
7.5.4. Fiscal Year. Each of the Borrower and
the Parent will, and will cause each of its
Subsidiaries to, give notice to the Administrative
Agent in writing not less than sixty (60) days prior
to changing the date of its fiscal year end from that
set forth in 6.4.1 of such proposed change.
7.6. Corporate Existence; Maintenance of
Properties. Each of the Borrower and the Parent will do
or cause to be done all things necessary to preserve and
keep in full force and effect its corporate existence,
rights and franchises and those of its Subsidiaries,
except as otherwise permitted by 8.5.1. Each of the
Borrower and the Parent (i) will cause all of its
properties and those of its Subsidiaries used or useful in
the conduct of its business or the business of its
Subsidiaries to be maintained and kept in good condition,
repair and working order and supplied with all necessary
equipment, (ii) will cause to be made all necessary
repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the
Borrower or the Parent may be necessary so that the
business carried on in connection therewith may be
properly and advantageously conducted at all times, and
(iii) will, and will cause each of its Subsidiaries to,
continue to engage primarily in the principal lines of
business now conducted by them and in similar or related
businesses; provided that nothing in this 7.6 shall
prevent the Borrower or the Parent from discontinuing the
operation and maintenance of any of its properties or
those of its Subsidiaries if such discontinuance is, in
the judgment of the Borrower or the Parent, desirable in
the conduct of its or their business and that do not in
the aggregate materially adversely affect the business of
the Borrower, the Parent and their Subsidiaries.
7.7. Insurance. Each of the Borrower and the Parent
will, and will cause each of its Subsidiaries to, maintain
with financially sound and reputable insurers insurance
with respect to its properties and business against such
casualties and contingencies as shall be in accordance
with the general practices of businesses engaged in
similar activities in similar geographic areas and in
amounts, containing such terms, in such forms and for such
periods as may be reasonable and prudent.
7.8. Taxes. Each of the Borrower and the Parent
will, and will cause each of its Subsidiaries to, duly pay
and discharge, or cause to be paid and discharged, before
the same shall become overdue, all material taxes,
assessments and other governmental charges (other than
taxes, assessments and other governmental charges imposed
by foreign jurisdictions that in the aggregate are not
material to the business or assets of any of the Borrower,
the Parent or any of their Subsidiaries on an individual
basis or of the Borrower, the Parent and their
Subsidiaries on a consolidated basis) imposed upon it and
its real properties, sales and activities, or any part
thereof, or upon the income or profits therefrom, as well
as all material claims for labor, materials, or supplies
that if unpaid might by law become a lien or charge upon
any of its property; provided that any such tax,
assessment, charge, levy or claim need not be paid if the
validity or amount thereof shall currently be contested in
good faith by appropriate proceedings and if the Borrower
or the Parent or such Subsidiary shall have set aside on
its books adequate reserves with respect thereto; and
provided further that the Borrower, the Parent and each of
their Subsidiaries will pay all such taxes, assessments,
charges, levies or claims forthwith upon the commencement
of proceedings to foreclose any lien that may have
attached as security therefor.
7.9. Inspection of Properties and Books, etc.
7.9.1. General. Each of the Borrower and the
Parent shall permit the Banks, through the
Administrative Agent or any of the Banks' other
designated representatives, to visit and inspect any
of the properties of the Borrower or the Parent or
any of their Subsidiaries to examine the books of
financial account and other financial records (to the
extent not confidential, and if any of such materials
are confidential, such materials shall be handled in
accordance with 17.2) of any of the Borrower, the
Parent and their Subsidiaries (and to make copies
thereof and extracts therefrom), and to discuss the
affairs, finances and accounts of the Borrower, the
Parent and their Subsidiaries with, and to be advised
as to the same by, its and their officers, all at
such reasonable times and intervals during regular
business hours as the Administrative Agent or any
Bank may reasonably request.
7.9.2. Communication with Accountants. Each of
the Borrower and the Parent authorizes the
Administrative Agent and the Banks (i) to obtain from
the Borrower's, the Parent's and their Subsidiaries'
independent certified public accountants copies of
any and all accountants' management letters prepared
with respect to the Borrower, the Parent or any of
their Subsidiaries, (ii) to communicate directly with
such accountants with regard to matters disclosed in
such management letters, and (iii) with the consent
of the Borrower or the Parent, which consent shall
not be unreasonably withheld or delayed, to
communicate directly with such accountants with
regard to all other matters concerning the business,
financial condition and other affairs of any of the
Borrower, the Parent or any of their Subsidiaries,
provided that after the occurrence and during the
continuance of a Default or an Event of Default, no
such consent shall be required. Each of the
Borrower, the Parent and their Subsidiaries hereby
authorize and direct such accountants to disclose to
the Administrative Agent and the Banks all such
management letters and any and all additional
financial statements and supporting financial
documents and schedules with respect to the business,
financial condition and other affairs of any of the
Borrower, the Parent or any of their Subsidiaries in
connection with such communications. At the request
of the Administrative Agent, the Borrower, the Parent
or the appropriate Subsidiary shall deliver a letter
addressed to such accountants instructing them to
comply with the provisions of this 7.9.2.
7.10. Compliance with Laws, Contracts, Licenses, and
Permits. Each of the Borrower and the Parent will, and
will cause each of its Subsidiaries to, comply with (i)
the applicable laws and regulations wherever its business
is conducted, including all Environmental Laws, (ii) the
provisions of its charter documents and by-laws, (iii) all
agreements and instruments by which it or any of its
properties may be bound and (iv) all applicable decrees,
orders, and judgments, except where non-compliance could
not have a materially adverse effect on the business,
assets or financial condition of any of the Borrower or
the Parent individually, or the Parent and its
Subsidiaries taken as a whole. If at any time while any
Loan or Note is outstanding or any Bank has any obligation
to make Loans hereunder, any authorization, consent,
approval, permit or license from any officer, agency or
instrumentality of any government shall become necessary
or required in order that the Borrower or the Parent may
fulfill any of its obligations hereunder, the Borrower or,
as the case may be, the Parent will immediately take or
cause to be taken all reasonable steps within the power of
such Person to obtain such authorization, consent,
approval, permit or license and furnish the Banks with
evidence thereof.
7.11. Employee Benefit Plans. Each of the Borrower
and the Parent will (i) promptly upon filing the same with
the Department of Labor or Internal Revenue Service,
furnish to the Administrative Agent a copy of the most
recent actuarial statement required to be submitted under
103(d) of ERISA and Annual Report, Form 5500, with all
required attachments, in respect of each Guaranteed
Pension Plan and (ii) promptly upon receipt or dispatch,
furnish to the Administrative Agent any notice, report or
demand sent or received in respect of a Guaranteed Pension
Plan under 302, 4041, 4042, 4043, 4063, 4065, 4066 and
4068 of ERISA, or in respect of a Multiemployer Plan,
under 4041A, 4202, 4219, 4242, or 4245 of ERISA.
7.12. Use of Proceeds. The Borrower, the Parent and
their Subsidiaries will use the proceeds of the Loans
solely for working capital and general corporate purposes,
including acquisitions permitted by 8.5.1.
7.13. Further Assurances. Each of the Borrower and
the Parent will, and will cause each of its Subsidiaries
to, cooperate with the Banks and the Administrative Agent
and execute such further instruments and documents as the
Banks or the Administrative Agent shall reasonably request
to carry out to their reasonable satisfaction the
transactions contemplated by this Credit Agreement and the
other Loan Documents.
8. CERTAIN NEGATIVE COVENANTS OF THE BORROWER AND THE
PARENT.
Each of the Borrower and the Parent covenants and
agrees that, so long as any Obligations or Note is
outstanding or any Bank has any obligation to make any
Loans:
8.1. Restrictions on Indebtedness. Neither Borrower
nor the Parent will, nor will they permit any of their
Subsidiaries to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to
any Indebtedness other than:
(a) Indebtedness to the Banks and the
Administrative Agent arising under any of the Loan
Documents;
(b) current liabilities of the Borrower, the
Parent or their Subsidiaries incurred in the ordinary
course of business not incurred through (i) the
borrowing of money, or (ii) the obtaining of credit
except for credit on an open account basis
customarily extended and in fact extended in
connection with normal purchases of goods and
services, and any letters of credit issued for the
account of the Borrower, the Parent or any of their
Subsidiaries in support of such permitted current
liabilities;
(c) Indebtedness in respect of taxes,
assessments, governmental charges or levies and
claims for labor, materials and supplies to the
extent that payment therefor shall not at the time be
required to be made in accordance with the provisions
of 7.8;
(d) Indebtedness in respect of judgments or
awards that have been in force for less than the
applicable period for taking an appeal so long as
execution is not levied thereunder or in respect of
which the Borrower, the Parent or the applicable
Subsidiary shall at the time in good faith be
prosecuting an appeal or proceedings for review and
in respect of which a stay of execution shall have
been obtained pending such appeal or review;
(e) endorsements for collection, deposit or
negotiation and warranties of products or services,
in each case incurred in the ordinary course of
business;
(f) Indebtedness existing on the date of this
Credit Agreement and listed and described on
Schedule 8.1 hereto ("Existing Indebtedness"), and
any refinancings of Existing Indebtedness, provided
that at no time shall the sum of (i) the aggregate
principal amount of Existing Indebtedness remaining
outstanding at such time plus (ii) the aggregate
principal amount of Indebtedness in respect of such
refinancings at such time exceed the aggregate
principal amount of Existing Indebtedness on the
Closing Date;
(g) Indebtedness of the Borrower or the Parent
to any Subsidiary of the Borrower or the Parent, and
Indebtedness of any Subsidiary of the Borrower or the
Parent to the Borrower or the Parent or any other
Subsidiary of the Borrower or the Parent;
(h) other Indebtedness for borrowed money and
credit received (including Capitalized Leases,
letters of credit issued for the account of the
Borrower, the Parent or any of their Subsidiaries,
and Indebtedness incurred pursuant to the sale and
leaseback of any property permitted by the provisions
of 8.6 hereof), provided that at no time shall the
aggregate amount of such Indebtedness exceed 10% of
the Consolidated Total Assets of the Parent and its
Subsidiaries determined as of the last day of the
fiscal year of the Parent most recently ended (such
Indebtedness permitted by this subsection (h), "Other
Indebtedness");
(i) (a) in addition to, or in combination with,
Indebtedness permitted by clause (h) of this 8.1,
with respect to any Subsidiary acquired by the
Borrower, the Parent or any of their Subsidiaries
after the Closing Date, Indebtedness of such newly
acquired Subsidiary in existence as of the date of
such acquisition, provided that such Indebtedness is
not incurred in contemplation of such acquisition,
and any guaranties of such Indebtedness issued by the
Borrower, the Parent or any of its Subsidiaries,
including without limitation, with respect to any
indemnities for environmental, employee benefit, tax,
litigation and similar liabilities, but excluding the
acquisition price of such Subsidiary; provided that
at no time shall the outstanding aggregate amount of
such Indebtedness (excluding, to the extent
duplicative, such guaranties) exceed $10,000,000, and
(b) with respect to any Subsidiary acquired or to be
acquired after the Closing Date, guaranties by the
Parent of the acquisition price of such new
Subsidiary which price shall not include any of the
obligations contemplated by clause (a) above; and
(j) Indebtedness of the type described in
clause (ix) of the definition of "Indebtedness."
8.2. Restrictions on Liens. Neither the Borrower
nor the Parent, will, nor will they permit any of their
Subsidiaries to, (i) create or incur or suffer to be
created or incurred or to exist any lien, encumbrance,
mortgage, pledge, charge, restriction or other security
interest of any kind upon any of its property or assets of
any character whether now owned or hereafter acquired, or
upon the income or profits therefrom; (ii) transfer any of
such property or assets or the income or profits therefrom
for the purpose of subjecting the same to the payment of
Indebtedness or performance of any other obligation in
priority to payment of its general creditors; (iii)
acquire, or agree or have an option to acquire, any
property or assets upon conditional sale or other title
retention or purchase money security agreement, device or
arrangement; (iv) suffer to exist for a period of more
than thirty (30) days after the same shall have been
incurred any Indebtedness or claim or demand against it
that if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever
over its general creditors; or (v) sell, assign, pledge or
otherwise transfer any accounts, contract rights, general
intangibles, chattel paper or instruments, with or without
recourse; provided that the Borrower, the Parent and any
Subsidiary of the Borrower or the Parent may create or
incur or suffer to be created or incurred or to exist:
(a) liens in favor of the Borrower or the
Parent on all or part of the assets of Subsidiaries
of the Borrower or the Parent securing Indebtedness
owing by Subsidiaries of the Borrower or the Parent
to the Borrower or the Parent, as the case may be;
(b) liens to secure taxes, assessments and
other government charges in respect of obligations
not overdue or liens on properties to secure claims
for labor, material or supplies in respect of
obligations not overdue;
(c) deposits or pledges made in connection
with, or to secure payment of, workmen's
compensation, unemployment insurance, old age
pensions or other social security obligations, or
deposits to secure the performance of tenders, bids
and other contracts (other than for the payment of
borrowed money) arising in the ordinary course of
business;
(d) liens in respect of the interest of lessors
under leases of real property;
(e) liens on properties in respect of judgments
or awards, the Indebtedness with respect to which is
permitted by 8.1(d);
(f) liens of carriers, warehousemen, mechanics
and materialmen, and other like liens on properties,
in existence less than 120 days from the date of
creation thereof in respect of obligations not
overdue;
(g) encumbrances consisting of easements,
rights of way, zoning restrictions, restrictions on
the use of real property and defects and
irregularities in the title thereto, landlord's or
lessor's liens under leases to which the Borrower,
the Parent or any of their Subsidiaries is a party,
and other minor liens or encumbrances none of which
in the opinion of the Borrower or the Parent
interferes materially with the use of the property
affected in the ordinary conduct of the business of
the Borrower, the Parent and their Subsidiaries,
which defects do not individually or in the aggregate
have a materially adverse effect on the business of
the Borrower, the Parent or any of their Subsidiaries
individually or of the Borrower, the Parent and their
Subsidiaries on a consolidated basis;
(h) presently outstanding liens listed on
Schedule 8.2 hereto, and liens to secure refinancings
of Existing Indebtedness secured by presently
outstanding liens to the extent and up to the amount
that the refinanced Existing Indebtedness was
secured; provided that the refinancing of such
Existing Indebtedness is permitted by the provisions
of 8.1(f) hereof; and
(i) liens securing Other Indebtedness.
8.3. Restrictions on Investments. Each of the
Borrower and the Parent will not, and will not permit any
of their Subsidiaries to, make or permit to exist or to
remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations
of the United States of America that mature within
one (1) year from the date of purchase by the
Borrower, the Parent or the applicable Subsidiary;
(b) demand deposits, certificates of deposit,
bankers acceptances and time deposits of United
States banks having total assets in excess of
$1,000,000,000;
(c) securities commonly known as "commercial
paper" issued by a corporation organized and existing
under the laws of the United States of America or any
state thereof that at the time of purchase have been
rated and the ratings for which are not less than "P
1" if rated by Moody's Investors Services, Inc., and
not less than "A 1" if rated by Standard & Poor's
Rating Group; or other debt securities issued by such
a corporation that at the time of purchase have been
rated and the ratings for which are not less than "A"
if rated by either Moody's Investors Services, Inc.
or Standard & Poor's Rating Group;
(d) obligations issued by (i) any state of the
United States of America or (ii) any political
subdivision of any such state or any public
instrumentality thereof which are rated and the
ratings for which are not less than "Aaa" if rated by
Moody's Investors Services, Inc. or "AAA" if rated by
Standard & Poor's Rating Group;
(e) Investments in shares of any so-called
"money market fund" provided that such fund is
registered under the Investment Company Act of 1940,
has net assets of at least $100,000,000, has an
investment portfolio with an average maturity of 365
days or less and is not considered to be a
"high-yield" fund;
(f) Investments existing (and in the amount) on
the date hereof and listed on Schedule 8.3 hereto;
(g) Investments with respect to Indebtedness
permitted by 8.1(g) so long as the applicable
Subsidiaries remain Subsidiaries of the Borrower or
the Parent, as the case may be;
(h) Investments consisting of the guaranty by
the Parent of the Obligations hereunder, or
Investments by the Borrower or the Parent in their
wholly-owned Subsidiaries;
(i) Investments consisting of (A) loans and
advances to employees for entertainment, travel and
other similar expenses in the ordinary course of
business not to exceed $200,000 in the aggregate at
any time outstanding, (B) loans to employees of the
Parent, pursuant to the terms of the Parent's
non-qualified stock option plan, secured by pledges
of the stock of the Parent owned by such employee,
not to exceed $1,000,000 in the aggregate at any time
outstanding and (C) loans and advances to employees
for moving or relocation expenses not to exceed
$1,000,000 in the aggregate at any time outstanding;
(j) Investments (i) in joint ventures,
excluding those joint ventures listed on Schedule
8.3, in lines of business that are similar or related
to a line of business in which the Borrower, the
Parent, or any of their Subsidiaries is then engaged,
not to exceed $20,000,000 in the aggregate at any
time, and (ii), if the Borrower or the Parent shall
own, at any time, less than a majority (by number of
votes) of the outstanding Voting Stock of any joint
venture or other Subsidiary (including, without
limitation, any investment in a joint venture or
other Subsidiary listed on Schedule 8.3), in such
joint ventures and other Subsidiaries, not to exceed
$20,000,000 in the aggregate;
(k) Investments in stock or asset acquisitions
permitted by 8.5.1 hereof.
(l) Investments with respect to Indebtedness
permitted by 8.1(j).
8.4. Distributions. The Borrower will not make any
Distributions unless both immediately before and
immediately after such Distribution, no Default or Event
of Default has occurred or is continuing.
8.5. Merger, Consolidation.
8.5.1. Mergers and Acquisitions. Neither the
Borrower nor the Parent will, nor will they permit
any of their Subsidiaries to,
(a) become a party to any merger or
consolidation with any other party, unless (i)
such other party is in a line of business that
is similar or related to a line of business in
which the Borrower, the Parent, or any of their
Subsidiaries is then engaged, (ii) the survivor
of such merger or consolidation is the Borrower,
the Parent or a Subsidiary of the Parent which
is a corporation organized and existing under
the laws of the United States or a state
thereof, provided that each of the Borrower and
the Parent shall survive any merger or
consolidation to which it is a party, and (iii)
immediately following such merger or
consolidation no Default or Event of Default has
occurred or is continuing; or
(b) agree to or effect any asset
acquisition or stock acquisition (other than the
acquisition of assets in the ordinary course of
business consistent with past practices) unless
(i) the business being so acquired is in a line
of business that is similar or related to a line
of business in which the Borrower, the Parent,
or any of their Subsidiaries is then engaged,
(ii) except to the extent permitted by 8.3(j),
the business being so acquired will be run as
part of the Parent or a Subsidiary of the
Parent, and (iii) immediately following such
acquisition no Default or Event of Default has
occurred or is continuing.
8.5.2. Disposition of Assets. Neither the
Borrower nor the Parent will, nor will they permit
any of their Subsidiaries to, become a party to or
agree to or effect any disposition of assets
(including capital stock), other than (i) the sale of
inventory and obsolete equipment in the ordinary
course of business, consistent with past practices,
or (ii) prior to the occurrence of a Default or Event
of Default, the disposition or sale of assets, in one
or more arms-length transactions, having a cumulative
aggregate sales price not to exceed (A) in any fiscal
year of the Parent, $100,000,000, and (B) in the
aggregate from the Closing Date, $150,000,000;
provided that, the value as of the date of
disposition of any non-cash assets received by the
Borrower, the Parent or any Subsidiary in payment of
any portion of the purchase price shall be equal to
the fair market value of such assets.
8.6. Sale and Leaseback. Neither the Borrower nor
the Parent will, nor will they permit any of their
Subsidiaries to, enter into any arrangement, directly or
indirectly, whereby any of the Borrower, the Parent or any
of their Subsidiaries shall sell or transfer any property
owned by it in order then or thereafter to lease such
property or lease other property that such Person intends
to use for substantially the same purpose as the property
being sold or transferred ("Sale and Leaseback
Arrangements"), other than, so long as no Default or Event
of Default shall have occurred and be continuing, Sale and
Leaseback Arrangements with respect to property, the net
book value of which determined on a cumulative basis from
the Closing Date, shall not exceed $5,000,000 in the
aggregate.
8.7. Compliance with Environmental Laws. Neither
the Borrower nor the Parent will, nor will they permit any
of their Subsidiaries to, (i) (a) use any of the Real
Estate or any portion thereof for the handling,
processing, storage or disposal of Hazardous Substances
except in material compliance with all Environmental Laws,
(b) cause or permit to be located on any of the Real
Estate any underground tank or other underground storage
receptacle for Hazardous Substances except in compliance
with all Environmental Laws, or (c) generate any Hazardous
Substances on any of the Real Estate except in compliance
with all Environmental Laws, unless non-compliance could
not have a materially adverse effect on the business,
assets or financial condition of any of the Borrower or
the Parent individually, or the Parent and its
Subsidiaries taken as a whole, or (ii) (a) conduct any
activity at any Real Estate or use any Real Estate in any
manner so as to cause a release (i.e. releasing, spilling,
leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing or
dumping) or threatened release of Hazardous Substances on,
upon or into the Real Estate or properties in the vicinity
thereof in violation of any Environmental Laws, or (b)
otherwise conduct any activity at any Real Estate or use
any Real Estate in any manner that would violate any
Environmental Law in any material respect or bring such
Real Estate in material violation of any Environmental
Law, unless such violation could not have a materially
adverse effect on the business, assets or financial
condition of any of the Borrower or the Parent
individually, or the Parent and its Subsidiaries taken as
a whole.
8.8. Employee Benefit Plans. Neither the Borrower,
the Parent nor any ERISA Affiliate thereof will:
(a) engage in any "prohibited transaction"
within the meaning of 406 of ERISA or 4975 of the
Code which could result in a material liability for
any of the Borrower, the Parent or any of their
Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur
an "accumulated funding deficiency," as such term is
defined in 302 of ERISA, whether or not such
deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed
Pension Plan to an extent which, or terminate any
Guaranteed Pension Plan in a manner which, could
result in the imposition of a material lien or
material encumbrance on the assets of the Borrower,
the Parent or any of their Subsidiaries pursuant to
302(f) or 4068 of ERISA; or
(d) amend any Guaranteed Pension Plan in
circumstances requiring the posting of security
pursuant to 307 of ERISA or 401(a)(29) of the Code;
or
(e) permit or take any action which would
result in the aggregate benefit liabilities (with the
meaning of 4001 of ERISA) of all Guaranteed Pension
Plans exceeding by more than $2,500,000 the value of
the aggregate assets of such Plans, disregarding for
this purpose the benefit liabilities and assets of
any such Plan with assets in excess of benefit
liabilities.
8.9. Certain Transactions. Except for arm's length
transactions pursuant to which the Borrower, the Parent or
any of their Subsidiaries makes payments in the ordinary
course of business upon terms no less favorable than such
Person could obtain from third parties and except for
payment of certain legal fees of a voting trust for the
Horne family stock, and payment of expenses for
preparation of tax returns of certain officers and
directors of the Parent and its Subsidiaries and other
transactions between the Borrower and the Parent or any of
their Subsidiaries deemed by management of the Borrower
and the Parent in good faith to be beneficial to the
Borrower and the Parent, neither the Borrower nor the
Parent will, nor will they permit any of their
Subsidiaries to, enter into any transaction with any
officer, director, employee or Affiliate of any of the
Borrower, the Parent or any of their Subsidiaries (other
than for service as employees, officers and directors),
including any contract, agreement or other arrangement
providing for the furnishing of services to or by,
providing for rental of real or personal property to or
from, or otherwise requiring payments to or from any such
officer, director, employee or Affiliate or, any
corporation, partnership, trust or other entity in which
any such officer, director, employee or Affiliate has a
substantial interest or is an officer, director, trustee
or partner.
9. FINANCIAL COVENANTS OF THE BORROWER AND THE PARENT.
9.1. Fixed Charge Coverage Ratio. Neither the
Borrower nor the Parent will permit the Fixed Charge
Coverage Ratio for any period of four consecutive fiscal
quarters of the Parent to be less than 3.00:1.00.
9.2. Leverage Ratio. Neither the Borrower nor the
Parent will permit the ratio of (i) Total Funded Debt to
(ii) the sum of (A) Total Funded Debt plus (B)
Consolidated Net Worth on any date (a "Test Date")
occurring during any period described in the table set
forth below to exceed the ratio set forth opposite the
period in the table below in which such Test Date occurs:
Period
Ratio
Closing Date - June 30, 1998
0.42:1.00
July 1, 1998 and thereafter
0.40:1.00
10. CONDITIONS TO EFFECTIVENESS.
The obligations of the Banks to make the initial
Revolving Credit Loans and Competitive Loans shall be
subject to the satisfaction of the following conditions
precedent on or prior to the Closing Date:
10.1. Loan Documents. Each of the Loan Documents
shall have been duly executed and delivered by the
respective parties thereto, shall be in full force and
effect and shall be in form and substance satisfactory to
each of the Banks. Each Bank shall have received a fully
executed copy of each such document.
10.2. Certified Copies of Charter Documents. Each
of the Banks shall have received from each of the Borrower
and the Parent, (i) a copy, certified by a duly authorized
officer of such Person to be true and complete on the
Closing Date, of each of (a) its charter or other
incorporation documents as in effect on such date of
certification, and (b) its by-laws as in effect on such
date and (ii) a certificate of good standing certified by
the Secretary of State of the jurisdiction in which it is
incorporated and each state in which it is qualified to do
business as a foreign corporation.
10.3. Corporate Action. All corporate action
necessary for the valid execution, delivery and
performance by each of the Borrower and the Parent of this
Credit Agreement and the other Loan Documents to which it
is or is to become a party shall have been duly and
effectively taken, and evidence thereof satisfactory to
the Banks shall have been provided to each of the Banks.
10.4. Incumbency Certificate. Each of the Banks
shall have received from each of the Borrower and the
Parent an incumbency certificate, dated as of the Closing
Date, signed by a duly authorized officer of such Person,
and giving the name and bearing a specimen signature of
each individual who shall be authorized: (i) to sign, in
the name and on behalf of such Person, each of the Loan
Documents to which such Person is or is to become a party;
(ii) in the case of the Borrower, to make Loan Requests
and Conversion Requests; and (iii) to give notices and to
take other action on its behalf under the Loan Documents.
10.5. Assignment and Acceptance. Each of Credit
Lyonnais Cayman Island Branch ("Credit Lyonnais") and The
Northern Trust Company ("Northern Trust") shall have (i)
delivered to the Administrative Agent a separate
Assignment and Acceptance, in the form of Exhibit F
hereof, executed by each of the parties thereto pursuant
to which each of Credit Lyonnais and Northern Trust shall
have sold and assigned to The Chase Manhattan Bank its
rights, benefits, indemnities and obligations under the
Original Credit Agreement and its Notes and (ii) cancelled
and returned any Notes issued to Credit Lyonnais and
Northern Trust to the Administrative Agent.
10.6. Opinion of Counsel. Each of the Banks and the
Administrative Agent shall have received a favorable
opinion addressed to the Banks and the Administrative
Agent, dated as of the Closing Date, in form and substance
satisfactory to the Banks and the Agent and substantially
in the form of Exhibit E hereof, from Goodwin, Procter &
Hoar LLP, counsel to the Borrower and the Parent, and each
of the Borrower and the Parent instruct Goodwin, Procter &
Hoar LLP to deliver such opinion to the Banks and the
Administrative Agent.
10.7. Proceedings and Documents. All proceedings in
connection with the transactions contemplated by this
Credit Agreement, the other Loan Documents and all other
documents incident thereto shall be satisfactory in
substance and in form to the Banks and to the
Administrative Agent and the Administrative Agent's
Special Counsel, and the Banks, the Administrative Agent
and such counsel shall have received all information and
such counterpart originals or certified or other copies of
such documents as the Administrative Agent may reasonably
request.
10.8. Payment of Fees. The Borrower shall have paid
the arrangement fee to the Arranger and the Administrative
Agent's fee to the Administrative Agent pursuant to 4.1
and 4.2, and all fees, expenses and disbursements of the
Administrative Agent's Special Counsel accrued prior to
the Closing Date.
11. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan,
whether on or after the Closing Date, shall also be
subject to the satisfaction of the following conditions
precedent:
11.1. Representations True; No Event of
Default. Each of the representations and warranties of
any of the Borrower, the Parent and any of their
Subsidiaries contained in this Credit Agreement, the other
Loan Documents or in any document or instrument delivered
pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made
and shall also be true at and as of the time of the making
of such Loan, with the same effect as if made at and as of
that time (except to the extent of changes resulting from
transactions contemplated or permitted by this Credit
Agreement and the other Loan Documents and changes
occurring in the ordinary course of business that singly
or in the aggregate are not materially adverse to the
business, assets or financial condition of the Borrower or
the Parent, individually or the Parent and its
Subsidiaries taken as a whole, and to the extent that such
representations and warranties relate expressly to an
earlier date) and no Default or Event of Default shall
have occurred and be continuing. The Administrative Agent
shall have received a certificate from each of the
Borrower and the Parent signed by an authorized officer of
such Person to such effect.
11.2. No Legal Impediment. No change shall have
occurred in any law or regulations thereunder or
interpretations thereof that in the reasonable opinion of
any Bank would make it illegal for such Bank to make such
Loan.
11.3. Governmental Regulation. Each Bank shall have
received from the Borrower, the Parent or any regulatory
authority such statements in substance and form reasonably
satisfactory to such Bank as such Bank shall require for
the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of
Governors of the Federal Reserve System.
12. EVENTS OF DEFAULT; ACCELERATION; ETC.
12.1. Events of Default and Acceleration. If any of
the following events ("Events of Default" or, if the
giving of notice or the lapse of time or both is required,
then, prior to such notice or lapse of time, "Defaults")
shall occur:
(a) the Borrower shall fail to pay any
principal of the Loans when the same shall become due
and payable, whether at the stated date of maturity
or any accelerated date of maturity or at any other
date fixed for payment;
(b) the Borrower shall fail to pay any interest
on the Loans, the Facility Fee, the Administrative
Agent's fee, or other sums due hereunder or under any
of the other Loan Documents, within five (5) days
after the same shall become due and payable, whether
at the stated date of maturity or any accelerated
date of maturity or at any other date fixed for
payment;
(c) the Borrower or the Parent shall fail to
comply with any of their covenants contained in 7
(other than 7.2, 7.7, 7.10 and 7.11), 8 or 9;
(d) the Borrower or the Parent or any of its
Subsidiaries shall fail to perform any term, covenant
or agreement contained herein or in any of the other
Loan Documents (other than those specified elsewhere
in this 12) for thirty (30) days after written
notice of such failure has been given to the Borrower
by the Administrative Agent;
(e) any representation or warranty of the
Borrower or the Parent or any of their Subsidiaries
in this Credit Agreement or any of the other Loan
Documents or in any other document or instrument
delivered pursuant to or in connection with this
Credit Agreement shall prove to have been false in
any material respect upon the date when made or
deemed to have been made or repeated;
(f) any of the Borrower, the Parent or any of
their Subsidiaries shall fail to pay at maturity, or
within any applicable period of grace, any obligation
(including any guaranties thereof) in respect of
borrowed money or credit received (including letters
of credit issued for the account of the Borrower, the
Parent or any of its Subsidiaries) or in respect of
any Capitalized Leases in excess of $10,000,000 in
the aggregate, or fail to observe or perform any
material term, covenant or agreement contained in any
agreement by which it is bound, evidencing or
securing borrowed money or credit received or in
respect of any Capitalized Leases in excess of
$10,000,000 in the aggregate, for such period of time
as would permit (assuming the giving of appropriate
notice if required) the holder or holders thereof or
of any obligations issued thereunder to accelerate
the maturity thereof;
(g) any of the Borrower, the Parent or any of
their Subsidiaries shall make an assignment for the
benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts
as they mature or become due, or shall petition or
apply for the appointment of a trustee or other
custodian, liquidator or receiver of any of the
Borrower, the Parent or any of their Subsidiaries or
of any substantial part of the assets of any of the
Borrower, the Parent or any of their Subsidiaries or
shall commence any case or other proceeding relating
to any of the Borrower, the Parent or any of their
Subsidiaries under any bankruptcy, reorganization,
arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or shall
take any action to authorize or in furtherance of any
of the foregoing, or if any such petition or
application shall be filed or any such case or other
proceeding shall be commenced against any of the
Borrower, the Parent or any of their Subsidiaries and
any of the Borrower, the Parent or any of their
Subsidiaries shall indicate its approval thereof,
consent thereto or acquiescence therein or such
petition or application shall not have been dismissed
within forty-five (45) days following the filing
thereof;
(h) a decree or order is entered appointing any
such trustee, custodian, liquidator or receiver or
adjudicating any of the Borrower, the Parent or any
of their Subsidiaries bankrupt or insolvent, or
approving a petition in any such case or other
proceeding, or a decree or order for relief is
entered in respect of any of the Borrower, the Parent
or any of their Subsidiaries in an involuntary case
under federal bankruptcy laws as now or hereafter
constituted;
(i) there shall remain in force, undischarged,
unsatisfied and unstayed, for more than thirty days,
whether or not consecutive, any final judgment
against any of the Borrower, the Parent or any of
their Subsidiaries that, with other outstanding final
judgments, undischarged, against the Borrower, the
Parent and any of their Subsidiaries exceeds in the
aggregate $5,000,000;
(j) (i) if any of the Loan Documents shall be
cancelled, terminated, revoked or rescinded otherwise
than in accordance with the terms thereof or with the
express prior written agreement, consent or approval
of the Banks, or (ii) any action at law, suit or in
equity or other legal proceeding to cancel, revoke or
rescind any of the Loan Documents shall be commenced
by or on behalf of any of (A) the Borrower, the
Parent or any of their Subsidiaries party thereto, or
(B) any of the Horne family stockholders, or (C) any
other stockholder if such action, suit or proceeding
has not been dismissed or withdrawn within sixty (60)
days of the commencement thereof, or (iii) any court
or any other governmental or regulatory authority or
agency of competent jurisdiction shall make a
determination that, or issue a judgment, order,
decree or ruling to the effect that, any one or more
of the Loan Documents is illegal, invalid or
unenforceable in accordance with the terms thereof;
(k) the Borrower or any ERISA Affiliate incurs
any liability pursuant to Title IV of ERISA (other
than for premiums) to the PBGC or a Guaranteed
Pension Plan in an aggregate amount exceeding
$1,000,000, or the Borrower or any ERISA Affiliate is
assessed withdrawal liability pursuant to Title IV of
ERISA by a Multiemployer Plan requiring aggregate
annual payments exceeding $1,000,000, or any of the
following occurs with respect to a Guaranteed Pension
Plan: (i) an ERISA Reportable Event, or a failure to
make a required installment or other payment (within
the meaning of 302(f)(1) of ERISA), provided that
the Administrative Agent determines in its reasonable
discretion that such event (A) could be expected to
result in liability of the Borrower or any of its
Subsidiaries to the PBGC or such Guaranteed Pension
Plan in an aggregate amount exceeding $1,000,000 and
(B) could constitute grounds for the termination of
such Guaranteed Pension Plan by the PBGC, for the
appointment by the appropriate United States District
Court of a trustee to administer such Guaranteed
Pension Plan or for the imposition of a lien in favor
of such Guaranteed Pension Plan; or (ii) the
appointment by a United States District Court of a
trustee to administer such Guaranteed Pension Plan;
or (iii) the institution by the PBGC of proceedings
to terminate such Guaranteed Pension Plan;
(l) any of the Borrower, the Parent or any of
their Subsidiaries shall be enjoined, restrained or
in any way prevented by the order of any court or any
administrative or regulatory agency from conducting
any material part of its business and such order
shall continue in effect for more than thirty (30)
days; or
(m) the Parent shall cease to own, directly or
indirectly, 100% of the capital stock of the
Borrower; or Timothy P. Horne and members of the
Horne family (or any trusts or similar entities
established for the benefit of members of the Horne
family) shall at any time cease to own, legally or
beneficially, at least fifty-one percent (51%) (by
number of votes) of the Voting Stock of the Parent;
or, during any period of twelve consecutive calendar
months, individuals who were directors or who were
elected by the members of the board of directors of
the Parent on the first day of such period shall
cease to constitute a majority of the board of
directors of the Parent.
then, and in any such event, so long as the same may be
continuing, the Administrative Agent may, and upon the
request of the Majority Banks shall, by notice in writing
to the Borrower declare all amounts owing with respect to
this Credit Agreement, the Notes and the other Loan
Documents to be, and they shall thereupon forthwith
become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower and the
Parent; provided that in the event of any Event of Default
specified in 12.1(g) or 12.1(h), all such amounts shall
become immediately due and payable automatically and
without any requirement of notice from the Administrative
Agent or any Bank.
12.2. Termination of Commitments. If any one or
more of the Events of Default specified in 12.1(g) or
12.1(h) shall occur, the Total Commitment shall forthwith
terminate and each of the Banks shall be relieved of all
obligations to make Loans to the Borrower. If any other
Event of Default shall have occurred and be continuing,
(i) the Administrative Agent may and, upon the request of
the Majority Banks, shall, by notice to the Borrower,
terminate the Total Commitment, and upon such notice being
given the Total Commitment shall terminate immediately and
(ii) in the event that Banks holding fifty-one percent
(51%) of the actual outstanding principal amount of the
Notes have declared all amounts owing pursuant to the last
paragraph of 12.1 above, the Total Commitment shall
terminate immediately and, in each case, each of the Banks
shall be relieved of all further obligations to make
Loans. Thereafter, reinstatement of the Total Commitment
shall require the written consent of each Bank. If any
such notice is given to the Borrower, the Administrative
Agent will forthwith furnish a copy thereof to each of the
Banks. No termination of the credit hereunder shall
relieve the Borrower or the Parent of any of the
Obligations or any of their existing obligations to any of
the Banks arising under other agreements or instruments.
12.3. Remedies. In case any one or more of the
Events of Default shall have occurred and be continuing,
each Bank, if owed any amount with respect to the Loans,
may, (i) prior to acceleration of the maturity of the
Loans pursuant to 12.1, with the consent of the Majority
Banks but not otherwise, proceed to protect and enforce
its rights by suit in equity, action at law or other
appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this
Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank
are evidenced, including as permitted by applicable law
the obtaining of the ex parte appointment of a receiver,
and, (ii) following acceleration of the maturity of the
Loans pursuant to 12.1, proceed to enforce the payment
thereof or any other legal or equitable right of such
Bank. No remedy herein conferred upon any Bank or the
Administrative Agent or the holder of any Note is intended
to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or any other
provision of law.
12.4. Distribution of Proceeds. In the event that,
following the occurrence or during the continuance of any
Default or Event of Default, the Administrative Agent or
any Bank, as the case may be, receives any monies in
connection with the enforcement of any of the Loan
Documents such monies shall be distributed for application
as follows:
(a) First, to the payment of, or (as the case
may be) the reimbursement of the Administrative Agent
for or in respect of all reasonable costs, expenses,
disbursements and losses which shall have been
incurred or sustained by the Administrative Agent in
connection with the collection of such monies by the
Administrative Agent, for the exercise, protection or
enforcement by the Administrative Agent of all or any
of the rights, remedies, powers and privileges of the
Administrative Agent under this Credit Agreement or
any of the other Loan Documents and in support of any
provision of adequate indemnity to the Administrative
Agent against all taxes or liens which by law shall
have, or may have, priority over the rights of the
Administrative Agent to such monies;
(b) Second, to all other Obligations in such
order or preference as the Majority Banks may
determine; provided, however, that distributions in
respect of such Obligations shall be made (i) pari
passu among Obligations with respect to the
Administrative Agent's fee payable under 4.2 and all
other Obligations and (ii) Obligations owing to the
Banks with respect to each type of Obligation such as
interest, principal, fees and expenses, shall be made
among the Banks pro rata based upon the amount of the
Obligations outstanding with respect to each Bank;
and provided, further, that the Administrative Agent
may in its reasonable discretion make proper
allowance to take into account any Obligations not
then due and payable; and
(c) Third, the excess, if any, shall be
returned to the Borrower or to such other Persons as
are entitled thereto.
13. SETOFF.
Regardless of the adequacy of any collateral, during
the continuance of any Event of Default, any deposits or
other sums credited by or due from any of the Banks to
either of the Borrower or the Parent and any securities or
other property of the Borrower or the Parent in the
possession of such Bank may be applied to or set off by
such Bank against the payment of Obligations and any and
all other liabilities, direct, or indirect, absolute or
contingent, due or to become due, now existing or
hereafter arising, of the Borrower or the Parent to such
Bank. Each of the Banks agrees with each other Bank that
(i) except with respect to the amount of any check or
electronic equivalent deposited with such Bank and
credited to the Borrower's or the Parent's account
maintained with such Bank which is subsequently returned
to the Borrower or the Parent unpaid, if an amount to be
set off is to be applied to Indebtedness of the Borrower
or the Parent to such Bank, other than the Obligations
evidenced by the Notes held by such Bank, such amount
shall be applied ratably to such other Indebtedness and to
the Obligations evidenced by all such Notes held by such
Bank, and (ii) if such Bank shall receive from the
Borrower or the Parent, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross
action, enforcement of the claim evidenced by the Notes
held by such Bank by proceedings against the Borrower or
the Parent at law or in equity or by proof thereof in
bankruptcy, reorganization, liquidation, receivership or
similar proceedings, or otherwise, and shall retain and
apply to the payment of the Note or Notes held by such
Bank any amount in excess of its ratable portion of the
payments received by all of the Banks with respect to the
Notes held by all of the Banks, such Bank will make such
disposition and arrangements with the other Banks with
respect to such excess, either by way of distribution, pro
tanto assignment of claims, subrogation or otherwise as
shall result in each Bank receiving in respect of the
Notes held by its proportionate payment as contemplated by
this Credit Agreement; provided that if all or any part of
such excess payment is thereafter recovered from such
Bank, such disposition and arrangements shall be rescinded
and the amount restored to the extent of such recovery,
but without interest.
14. THE ADMINISTRATIVE AGENT AND THE COMPETITIVE BID
AGENT.
14.1. Authorization. (a) The Agents are authorized
to take such action on behalf of each of the Banks and to
exercise all such powers as are hereunder and under any of
the other Loan Documents and any related documents
delegated to the Agents, together with such powers as are
reasonably incident thereto, provided that no duties or
responsibilities not expressly assumed herein or therein
shall be implied to have been assumed by the Agents.
(b) The relationship between the Agents and each of
the Banks is that of an independent contractor. The use
of the terms "Agents," "Administrative Agent" and
"Competitive Bid Agent" is for convenience only and are
used to describe, as a form of convention, the independent
contractual relationship between the Agents and each of
the Banks. Nothing contained in this Credit Agreement nor
the other Loan Documents shall be construed to create an
agency, trust or other fiduciary relationship between the
Agents and any of the Banks.
(c) As an independent contractor empowered by the
Banks to exercise certain rights and perform certain
duties and responsibilities hereunder and under the other
Loan Documents, the Administrative Agent is nevertheless a
"representative" of the Banks, as that term is defined in
Article 1 of the Uniform Commercial Code, for purposes of
actions for the benefit of the Banks and the Agents with
respect to all collateral security and guaranties
contemplated by the Loan Documents, if any. Such actions
include the designation of the Administrative Agent as
"secured party," "mortgagee" or the like on all financing
statements and other documents and instruments, whether
recorded or otherwise, relating to the attachment,
perfection, priority or enforcement of any security
interests, mortgages or deeds of trust in collateral
security intended to secure the payment or performance of
any of the Obligations.
14.2. Employees and Agents. The Agents may exercise
their powers and execute their duties by or through
employees or agents and shall be entitled to take, and to
rely on, advice of counsel concerning all matters
pertaining to their rights and duties under this Credit
Agreement and the other Loan Documents. Each of the
Agents may utilize the services of such Persons as such
Agent in its sole discretion may reasonably determine, and
all reasonable fees and expenses of any such Persons shall
be paid by the Borrower.
14.3. No Liability. Neither the Agents nor any of
their shareholders, directors, officers or employees nor
any other Person assisting them in their duties nor any
agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted
to be taken, in good faith by it or them hereunder or
under any of the other Loan Documents, or in connection
herewith or therewith, or be responsible for the
consequences of any oversight or error of judgment
whatsoever, except that the Agents or such other Person,
as the case may be, may be liable for losses due to its
willful misconduct or gross negligence.
14.4. No Representations.
14.4.1. General. The Agents shall not be
responsible for the execution or validity or
enforceability of this Credit Agreement (except for
the execution by the Agents, or the validity or
enforceability against the Agents, of this Credit
Agreement), the Notes, any of the other Loan
Documents or any instrument at anytime constituting,
or intended to constitute, collateral security for
the Notes, or for the value of any such collateral
security or for the validity, enforceability or
collectability of any such amounts owing with respect
to the Notes, or for any recitals or statements,
warranties or representations made herein or in any
of the other Loan Documents or in any certificate or
instrument hereafter furnished to it by or on behalf
of the Borrower or the Parent, or be bound to
ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants
or agreements herein or in any instrument at any time
constituting, or intended to constitute, collateral
security for the Notes or to inspect any of the
properties, books or records of any of the Borrower,
the Parent or any of their Subsidiaries. The Agents
shall not be bound to ascertain whether any notice,
consent, waiver or request delivered to it by the
Borrower or the Parent or any holder of any of the
Notes shall have been duly authorized or is true,
accurate and complete. The Agents have not made nor
do they now make any representations or warranties,
express or implied, nor does it assume any liability
to the Banks, with respect to the credit worthiness
or financial conditions of any of the Borrower, the
Parent or any of their Subsidiaries. Each Bank
acknowledges that it has, independently and without
reliance upon the Agents or any other Bank, and based
upon such information and documents as it has deemed
appropriate, made its own credit analysis and
decision to enter into this Credit Agreement.
14.4.2. Closing Documentation, etc. For
purposes of determining compliance with the
conditions set forth in 10, each Bank that has
executed this Credit Agreement shall be deemed to
have consented to, approved or accepted, or to be
satisfied with, each document and matter either sent,
or made available, by the Administrative Agent or the
Arranger for consent, approval, acceptance or
satisfaction, or required thereunder to be consented
to or approved by or acceptable or satisfactory to
such Bank, unless an officer of the Administrative
Agent or the Arranger (or their counsel) active upon
the Borrower's account shall have received notice
from such Bank prior to the Closing Date specifying
such Bank's objection thereto and such objection
shall not have been withdrawn by notice to the
Administrative Agent or the Arranger to such effect
on or prior to the Closing Date.
14.5. Payments.
14.5.1. Payments to Administrative Agent. A
payment by the Borrower or the Parent to the
Administrative Agent hereunder or any of the other
Loan Documents for the account of any Bank shall
constitute a payment to such Bank. The
Administrative Agent agrees promptly to distribute to
each Bank such Bank's pro rata share of payments
received by the Administrative Agent for the account
of the Banks except as provided in 4.6 through 4.8,
4.10 and 16 and as otherwise expressly provided
herein or in any of the other Loan Documents.
14.5.2. Distribution by Administrative
Agent. If in the opinion of the Administrative Agent
the distribution of any amount received by it in such
capacity hereunder, under the Notes or under any of
the other Loan Documents might involve it in
liability, it may refrain from making distribution
until its right to make distribution shall have been
adjudicated by a court of competent jurisdiction. If
a court of competent jurisdiction shall adjudge that
any amount received and distributed by the
Administrative Agent is to be repaid, each Person to
whom any such distribution shall have been made shall
either repay to the Administrative Agent its
proportionate share of the amount so adjudged to be
repaid or shall pay over the same in such manner and
to such Persons as shall be determined by such court.
14.5.3. Delinquent Banks. Notwithstanding
anything to the contrary contained in this Credit
Agreement or any of the other Loan Documents, any
Bank that fails absent notification to the
Administrative Agent by such Bank pursuant to 2.8.2
(i) to make available to the Administrative Agent its
pro rata share of any Loan or (ii) to comply with the
provisions of 14 with respect to making dispositions
and arrangements with the other Banks, where such
Bank's share of any payment received, whether by
setoff or otherwise, is in excess of its pro rata
share of such payments due and to payable to all of
the Banks, in each case as, when and to the full
extent required by the provisions of this Credit
Agreement, shall be deemed delinquent (a "Delinquent
Bank") and shall be deemed a Delinquent Bank until
such time as such delinquency is satisfied. A
Delinquent Bank shall be deemed to have assigned any
and all payments due to it from the Borrower or the
Parent, whether on account of outstanding Loans,
interest, fees or otherwise, to the remaining
nondelinquent Banks for application to, and reduction
of, their respective pro rata shares of all
outstanding Loans. The Delinquent Bank hereby
authorizes the Administrative Agent to distribute
such payments to the nondelinquent Banks in
proportion to their respective pro rata shares of all
outstanding Loans. A Delinquent Bank shall be deemed
to have satisfied in full a delinquency when and if,
as a result of application of the assigned payments
to all outstanding Loans of the nondelinquent Banks,
the Banks' respective pro rata shares of all
outstanding Loans have returned to those in effect
immediately prior to such delinquency and without
giving effect to the nonpayment causing such
delinquency.
14.6. Holders of Notes. The Administrative Agent
may deem and treat the payee of any Note as the absolute
owner thereof for all purposes hereof until it shall have
been furnished in writing with a different name by such
payee or by a subsequent holder.
14.7. Indemnity. The Banks ratably agree hereby to
indemnify and hold harmless the Agents from and against
any and all claims, actions and suits (whether groundless
or otherwise), losses, damages, costs, expenses (including
any expenses for which the Agents have not been reimbursed
by the Borrower as required by 15), and liabilities of
every nature and character arising out of or related to
this Credit Agreement, the Notes, or any of the other Loan
Documents or the transactions contemplated or evidenced
hereby or thereby, or the Agents' actions taken hereunder
or thereunder, except to the extent that any of the same
shall be directly caused by the willful misconduct or
gross negligence of the Agents, their directors, officers
or employees or any other Person assisting them in their
duties or any agent or employee thereof.
14.8. Agent as Bank. In its individual capacity,
BankBoston shall have the same obligations and the same
rights, powers and privileges in respect to its Commitment
and the Loans made by it, and as the holder of any of the
Notes, as it would have were it not also the
Administrative Agent and the Competitive Bid Agent.
14.9. Resignation. Either of the Agents may resign
at any time by giving sixty (60) days prior written notice
thereof to the Banks and the Borrower. Upon any such
resignation, the Majority Banks shall have the right to
appoint a successor Agent in such capacity. Unless a
Default or Event of Default shall have occurred and be
continuing, such successor Agent shall be reasonably
acceptable to the Borrower. If no successor Agent shall
have been so appointed by the Majority Banks and shall
have accepted such appointment within thirty (30) days
after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the
Banks, appoint a successor Agent, which shall be a
financial institution having a rating of not less than A
or its equivalent by Standard & Poor's Rating Group. Upon
the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's
resignation, the provisions of this Credit Agreement and
the other Loan Documents shall continue in effect for its
benefit in respect of any actions taken or omitted to be
taken by it while it was acting as Agent.
14.10. Notification of Defaults and Events of
Default. Each Bank hereby agrees that, upon learning of
the existence of a Default or an Event of Default, it
shall promptly notify the Administrative Agent thereof.
The Administrative Agent hereby agrees that upon receipt
of any notice under this 14.10 it shall promptly notify
the other Banks of the existence of such Default or Event
of Default.
15. EXPENSES.
The Borrower agrees to pay (i) the reasonable costs
of producing and reproducing this Credit Agreement, the
other Loan Documents and the other agreements and
instruments mentioned herein, in connection with the
preparation, administration or interpretation of such
documents, the closing hereunder, and any amendments,
restatements, modifications, approvals, consents or
waivers hereto or hereunder, (ii) any taxes (including any
interest and penalties in respect thereto) payable by the
Administrative Agent or any of the Banks (other than taxes
based upon the Administrative Agent's or any Bank's net
income) on or with respect to the transactions
contemplated by this Credit Agreement (the Borrower hereby
agreeing to indemnify the Administrative Agent and each
Bank with respect thereto), (iii) the reasonable fees,
expenses and disbursements of the Agents' Special Counsel
incurred in connection with the preparation,
administration or interpretation of the Loan Documents and
other instruments mentioned herein, the closing hereunder,
and amendments, restatements, modifications, approvals,
consents or waivers hereto or hereunder, (iv) the
reasonable fees, expenses and disbursements of the
Administrative Agent incurred by the Administrative Agent
in connection with the preparation, syndication,
administration or interpretation of the Loan Documents and
other instruments mentioned herein, provided that amounts
attributable to syndication expenses shall not exceed
$5,000, and (vi) all reasonable out-of-pocket expenses
(including without limitation reasonable attorneys' fees,
costs and disbursements, which attorneys shall be outside
counsel to the Agents or any of the Banks, and reasonable
consulting, accounting, appraisal, investment banking and
similar professional fees and charges) incurred by the
Agents or any of the Banks in connection with (A) the
enforcement of or preservation of rights under any of the
Loan Documents against the Borrower or the Parent or any
of their Subsidiaries or the administration thereof after
the occurrence of a Default or Event of Default and (B)
any litigation, proceeding or dispute whether arising
hereunder or otherwise, in any way related to either of
the Agents' relationship with the Borrower, the Parent or
any of their Subsidiaries, provided, however that the
Agents shall refund any amounts paid pursuant to the terms
of this 15 to the extent that they have been determined
by a court of competent jurisdiction, by final order, to
have been incurred solely as a result of a breach by the
Administrative Agent or the Competitive Bid Agent, as the
case may be, of its obligations under this Credit
Agreement. The covenants of this 15 shall survive
payment or satisfaction of payment of amounts owing with
respect to the Obligations.
16. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless
the Agents and the Banks and their respective affiliates,
officers, directors, employees, agents or other
representatives from and against any and all claims actual
or threatened in writing, actions and suits whether
groundless or otherwise, and from and against any and all
liabilities, losses, damages and expenses of every nature
and character arising out of this Credit Agreement or any
of the other Loan Documents or the transactions
contemplated hereby, except to the extent resulting from
the gross negligence or willful misconduct of the
indemnified party as determined by a court of competent
jurisdiction by a final and non-appealable judgment,
including, without limitation, (i) any actual or proposed
use by any of the Borrower, the Parent or any of their
Subsidiaries of the proceeds of any of the Loans, (ii) any
of the Borrower, the Parent or any of their Subsidiaries
entering into or performing this Credit Agreement or any
of the other Loan Documents or (iii) with respect to any
of the Borrower, the Parent and any of their Subsidiaries
and their respective properties and assets, the violation
of any Environmental Law, the presence, disposal, escape,
seepage, leakage, spillage, discharge, emission, release
or threatened release of any Hazardous Substances or any
action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances
(including, but not limited to claims with respect to
wrongful death, personal injury or damage to property), in
each case including, without limitation, the reasonable
fees and disbursements of counsel incurred in connection
with any such investigation, litigation or other
proceeding. In litigation, or the preparation therefor,
the Banks and the Agents shall be entitled to select their
own counsel and, in addition to the foregoing indemnity,
the Borrower agrees to pay promptly the reasonable fees
and expenses of such counsel if (x) in the written opinion
of counsel to the Administrative Agent, use of counsel of
the Borrower's choice could reasonably be expected to give
rise to a conflict of interest, or (y) the Borrower shall
not have employed counsel reasonably satisfactory to the
Administrative Agent and the Banks to represent the Agents
and the Banks within reasonable time after notice of the
institution of any such litigation or proceeding. If, and
to the extent that the obligations of the Borrower under
this 16 are unenforceable for any reason, the Borrower
hereby agrees to make the maximum contribution to the
payment in satisfaction of such obligations which is
permissible under applicable law. The covenants contained
in this 16 shall survive payment of satisfaction in full
of the Obligations.
17. TREATMENT OF CERTAIN CONFIDENTIAL INFORMATION.
17.1. Sharing of Information with Section 20
Subsidiary. The Borrower acknowledges that from time to
time financial advisory, investment banking and other
services may be offered or provided to the Borrower or one
or more of its Subsidiaries, in connection with this
Credit Agreement or otherwise, by a Section 20 Subsidiary.
The Borrower, for itself and each of its Subsidiaries,
hereby authorizes (a) such Section 20 Subsidiary to share
with the Administrative Agent and each Bank any
information delivered to such Section 20 Subsidiary by the
Borrower or any of its Subsidiaries, and (b) the
Administrative Agent and each Bank to share with such
Section 20 Subsidiary any information delivered to the
Administrative Agent or such Bank by the Borrower or any
of its Subsidiaries pursuant to this Credit Agreement, or
in connection with the decision of such Bank to enter into
this Credit Agreement; it being understood, in each case,
that any such Section 20 Subsidiary receiving such
information shall be bound by the confidentiality
provisions of this Credit Agreement. Such authorization
shall survive the payment and satisfaction in full of all
of Obligations.
17.2. Confidentiality. Each of the Banks and the
each of the Agents agrees, on behalf of itself and each of
its affiliates, directors, officers, employees and
representatives, to keep confidential, in accordance with
their customary procedures for handling confidential
information of the same nature and in accordance with safe
and sound banking practices, any non-public information
supplied to it by the Borrower or any of its Subsidiaries
pursuant to this Credit Agreement that is identified by
such Person as being confidential at the time the same is
delivered to the Banks or the Agents, provided that
nothing herein shall limit the disclosure of any such
information (a) after such information shall have become
public other than through a violation of this 17, (b) to
the extent required by statute, rule, regulation or
judicial process, (c) to counsel for any of the Banks or
the Agents, (d) to bank examiners or any other regulatory
authority having jurisdiction over any Bank or the Agents,
or to auditors or accountants, (e) to the Agents, any Bank
or any Section 20 Subsidiary, (f) in connection with any
litigation to which any one or more of the Banks, either
of the Agents or any Section 20 Subsidiary is a party, or
in connection with the enforcement of rights or remedies
hereunder or under any other Loan Document, (g) to a
Subsidiary or affiliate of such Bank as provided in 17.1
or (h) to any assignee or participant (or prospective
assignee or participant) so long as such assignee or
participant agrees to be bound by the provisions of 19.6.
17.3. Prior Notification. Unless specifically
prohibited by applicable law or court order, each of the
Banks and the Agents shall, prior to disclosure thereof,
notify the Borrower of any request for disclosure of any
such non-public information by any governmental agency or
representative thereof (other than any such request in
connection with an examination of the financial condition
of such Bank by such governmental agency) or pursuant to
legal process.
17.4. Other. The obligations of each Bank under
this 17 shall supersede and replace the obligations of
such Bank under any confidentiality letter in respect of
this financing signed and delivered by such Bank to the
Borrower prior to the date hereof and shall be binding
upon any assignee of, or purchaser of any participation
in, any interest in any of the Loans from any Bank.
18. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and
warranties made herein, in the Notes, in any of the other
Loan Documents or in any documents or other papers
delivered by or on behalf of the Borrower, the Parent or
any of their Subsidiaries pursuant hereto shall be deemed
to have been relied upon by the Banks and the Agents,
notwithstanding any investigation heretofore or hereafter
made by any of them, and shall survive the making by the
Banks of the Loans, as herein contemplated, and shall
continue in full force and effect so long as any
Obligations under this Credit Agreement or the Notes or
any of the other Loan Documents remains outstanding or any
Bank has any obligation to make any Loans, and for such
further time as may be otherwise expressly specified in
this Credit Agreement. All statements contained in any
certificate or other paper delivered to any Bank or the
Agents at any time by or on behalf of the Borrower, the
Parent or any of their Subsidiaries pursuant hereto or in
connection with the transactions contemplated hereby shall
constitute representations and warranties by the Borrower,
the Parent or such Subsidiary hereunder.
19. ASSIGNMENT AND PARTICIPATION.
19.1. Conditions to Assignment by Banks. Except as
provided herein, each Bank may assign to one or more
Eligible Assignees all or a portion of its interests,
rights and obligations under this Credit Agreement
(including all or a portion of its Commitment Percentage
and Commitment and the same portion of the Loans at the
time owing to it) and the Notes held by it; provided that
(i) the Administrative Agent shall have given its prior
written consent to such assignment, which consent shall
not be unreasonably withheld or delayed, (ii) prior to the
occurrence or continuance of a Default or Event of
Default, the Borrower shall have given its prior written
consent to all such assignments in amounts of less than
$20,000,000, which consent shall not be unreasonably
withheld or delayed (it being understood by the parties
that no consent of the Borrower shall be required for
assignments in amounts of $20,000,000 or in excess thereof
or following the occurrence of a Default or an Event of
Default), (iii) each such assignment shall be of a
constant, and not a varying, percentage of all the
assigning Bank's rights and obligations under this Credit
Agreement, and (iv) the parties to such assignment shall
execute and deliver to the Administrative Agent, for
recording in the Register (as hereinafter defined), an
Assignment and Acceptance, substantially in the form of
Exhibit F hereto (an "Assignment and Acceptance"),
together with any Notes subject to such assignment. Upon
such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment
and Acceptance, which effective date shall be at least
five (5) Business Days after the execution thereof, (i)
the assignee thereunder shall be a party hereto and, to
the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder, and
(ii) the assigning Bank shall, to the extent provided in
such assignment and upon payment to the Administrative
Agent of the registration fee referred to in 19.3, be
released from its obligations under this Credit Agreement.
19.2. Certain Representations and Warranties;
Limitations; Covenants. By executing and delivering an
Assignment and Acceptance, the parties to the assignment
thereunder confirm to and agree with each other and the
other parties hereto as follows:
(a) other than the representation and warranty
that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any
adverse claim, the assigning Bank makes no
representation or warranty, express or implied, and
assumes no responsibility with respect to any
statements, warranties or representations made in or
in connection with this Credit Agreement or the
execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit
Agreement, the other Loan Documents or any other
instrument or document furnished pursuant hereto or
the attachment, perfection or priority of any
security interest or mortgage;
(b) the assigning Bank makes no representation
or warranty and assumes no responsibility with
respect to the financial condition of any of the
Borrower, the Parent or any of their Subsidiaries or
any other Person primarily or secondarily liable in
respect of any of the Obligations, or the performance
or observance by any of the Borrower, the Parent or
any of their Subsidiaries or any other Person
primarily or secondarily liable in respect of any of
the Obligations of any of their obligations under
this Credit Agreement or any of the other Loan
Documents or any other instrument or document
furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received
a copy of this Credit Agreement, together with copies
of the most recent financial statements referred to
in 6.4 and 7.4 and such other documents and
information as it has deemed appropriate to make its
own credit analysis and decision to enter into such
Assignment and Acceptance;
(d) such assignee will, independently and
without reliance upon the assigning Bank, the
Administrative Agent or any other Bank and based on
such documents and information as it shall deem
appropriate at the time, continue to make its own
credit decisions in taking or not taking action under
this Credit Agreement;
(e) such assignee represents and warrants that
it is an Eligible Assignee;
(f) such assignee appoints and authorizes the
Administrative Agent to take such action as
Administrative Agent on its behalf and to exercise
such powers under this Credit Agreement and the other
Loan Documents as are delegated to the Administrative
Agent by the terms hereof or thereof, together with
such powers as are reasonably incidental thereto;
(g) such assignee agrees that it will perform
in accordance with their terms all of the obligations
that by the terms of this Credit Agreement are
required to be performed by it as a Bank; and
(h) such assignee represents and warrants that
it is legally authorized to enter into such
Assignment and Acceptance.
19.3. Register. The Administrative Agent shall
maintain a copy of each Assignment and Acceptance
delivered to it and a register or similar list (the
"Register") for the recordation of the names and addresses
of the Banks and the Commitment Percentage of, and
principal amount of the Revolving Credit Loans owing to
the Banks from time to time. The entries in the Register
shall be conclusive, in the absence of manifest error, and
the Borrower, the Administrative Agent and the Banks may
treat each Person whose name is recorded in the Register
as a Bank hereunder for all purposes of this Credit
Agreement. Upon each such recordation, the assigning Bank
agrees to pay to the Administrative Agent a registration
fee in the sum of $3,500.
19.4. New Notes. Upon its receipt of an Assignment
and Acceptance executed by the parties to such assignment,
together with each Note subject to such assignment, the
Administrative Agent shall (i) record the information
contained therein in the Register, and (ii) give prompt
notice thereof to the Borrower and the Banks (other than
the assigning Bank). Within five (5) Business Days after
receipt of such notice, the Borrower, at its own expense,
shall execute and deliver to the Administrative Agent, in
exchange for each surrendered Note, a new Note to the
order of such Eligible Assignee in an amount equal to the
amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Bank has
retained some portion of its obligations hereunder, a new
Note to the order of the assigning Bank in an amount equal
to the amount retained by it hereunder. Such new Notes
shall provide that they are replacements for the
surrendered Notes, shall be in an aggregate principal
amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in
substantially the form of the assigned Notes. Within five
(5) days of issuance of any new Notes pursuant to this
19.4, the Borrower shall deliver an opinion of counsel,
addressed to the Banks and the Administrative Agent,
relating to the due authorization, execution and delivery
of such new Notes and the legality, validity and binding
effect thereof, in form and substance satisfactory to the
Banks. The surrendered Notes shall be cancelled and
returned to the Borrower.
19.5. Participations. Each Bank may sell
participations to one or more banks or other entities in
all or a portion of such Bank's rights and obligations
under this Credit Agreement and the other Loan Documents;
provided that (i) each such participation shall be in an
amount of not less than $5,000,000 (ii) any such sale or
participation shall not affect the rights and duties of
the selling Bank hereunder to the Borrower and (iii) the
only rights granted to the participant pursuant to such
participation arrangements with respect to waivers,
amendments or modifications of the Loan Documents shall be
the rights to approve waivers, amendments or modifications
that would reduce the principal of or the interest rate on
any Loans, extend the term or increase the amount of the
Commitment of such Bank as it relates to such participant,
reduce the amount of any commitment fees to which such
participant is entitled or extend any regularly scheduled
payment date for principal or interest.
19.6. Disclosure. The Borrower agrees that in
addition to disclosures made in accordance with standard
and customary banking practices and 17 hereof, any Bank
may disclose information obtained by such Bank pursuant to
this Credit Agreement to assignees or participants and
potential assignees or participants hereunder; provided
that such assignees or participants or potential assignees
or participants shall agree (i) to treat in confidence
such information unless such information otherwise becomes
public knowledge, (ii) not to disclose such information to
a third party, except as required by law or legal process
and (iii) not to make use of such information for purposes
of transactions unrelated to such contemplated assignment
or participation.
19.7. Assignee or Participant Affiliated with the
Borrower. If any assignee Bank is an Affiliate of the
Borrower or the Parent, then any such assignee Bank shall
have no right to vote as a Bank hereunder or under any of
the other Loan Documents for purposes of granting consents
or waivers or for purposes of agreeing to amendments or
other modifications to any of the Loan Documents or for
purposes of making requests to the Administrative Agent
pursuant to 12.1 or 12.2, and the determination of the
Majority Banks shall for all purposes of this Agreement
and the other Loan Documents be made without regard to
such assignee Bank's interest in any of the Loans. If any
Bank sells a participating interest in any of the Loans to
a participant, and such participant is the Borrower or the
Parent or an Affiliate of the Borrower or the Parent, then
such transferor Bank shall promptly notify the
Administrative Agent of the sale of such participation. A
transferor Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for
purposes of granting consents or waivers or for purposes
of agreeing to amendments or modifications to any of the
Loan Documents or for purposes of making requests to the
Administrative Agent pursuant to 12.1 or 12.2 to the
extent that such participation is beneficially owned by
the Borrower or the Parent or any Affiliate of the
Borrower or the Parent, and the determination of the
Majority Banks shall for all purposes of this Agreement
and the other Loan Documents be made without regard to the
interest of such transferor Bank in the Loans to the
extent of such participation.
19.8. Miscellaneous Assignment Provisions. Any
assigning Bank shall retain its rights to be indemnified
pursuant to 16 with respect to any claims or actions
arising prior to the date of such assignment. If any
assignee Bank is not incorporated under the laws of the
United States of America or any state thereof, it shall,
prior to the date on which any interest or fees are
payable hereunder or under any of the other Loan Documents
for its account, deliver to the Borrower and the
Administrative Agent certification as to its exemption
from deduction or withholding of any United States federal
income taxes. If BankBoston transfers all of its
interest, rights and obligations under this Credit
Agreement, the Administrative Agent shall, in consultation
with the Borrower and with the consent of the Borrower and
the Majority Banks, appoint another Bank to act as a
reference Bank for the purpose of determining the
Eurodollar Rate hereunder. Anything contained in this 19
to the contrary notwithstanding, any Bank may (i) at any
time pledge all or any portion of its interest and rights
under this Credit Agreement (including all or any portion
of its Notes) to any of the twelve Federal Reserve Banks
organized under 4 of the Federal Reserve Act, 12 U.S.C.
341; provided that no such pledge or the enforcement
thereof shall release the pledgor Bank from its
obligations hereunder or under any of the other Loan
Documents and (ii) assign to another Bank listed on
Schedule 1 hereto or an Affiliate of any Bank listed on
Schedule 1 hereto all or a portion of its interests,
rights and obligations under this Credit Agreement
(including all or a portion of its Commitment Percentage
and Commitment and the same portion of the Loans at the
same time owing to it) without the prior written consent
of the Borrower.
19.9. Assignment by Borrower. Neither the Borrower
nor the Parent shall assign or transfer any of its rights
or obligations under any of the Loan Documents without the
prior written consent of each of the Banks.
20. NOTICES, ETC.
Except as otherwise expressly provided in this Credit
Agreement, all notices and other communications made or
required to be given pursuant to this Credit Agreement or
the Notes shall be in writing and shall be delivered in
hand, mailed by United States registered or certified
first class mail, postage prepaid, sent by overnight
courier, or sent by telegraph, telecopy, telefax or telex
and confirmed by delivery via courier or postal service,
addressed as follows:
(a) if to the Borrower, at 801 West Street,
Second Floor, Wilmington, Delaware 19801, Attention:
Kenneth Kubacki (with a copy to the Parent at the
address set forth below), or at such other address
for notice as the Borrower shall last have furnished
in writing to the Person giving the notice;
(b) if to the Parent, at 815 Chestnut Street,
North Andover, Massachusetts 01845, Attention:
William McCartney, or at such other address for
notice as the Parent shall last have furnished in
writing to the Person giving the notice;
(c) if to the Administrative Agent or the
Competitive Bid Agent, at 100 Federal Street, Boston,
Massachusetts 02110, Attention: Harvey H. Thayer,
Jr., Director, or such other address for notice as
the Administrative Agent or the Competitive Bid Agent
shall last have furnished in writing to the Person
giving the notice; and
(d) if to any Bank, at such Bank's address set
forth on Schedule 1 hereto, or such other address for
notice as such Bank shall have last furnished in
writing to the Person giving the notice.
Any such notice or demand shall be deemed to have
been duly given or made and to have become effective (i)
if delivered by hand, overnight courier or facsimile to a
responsible officer of the party to which it is directed,
at the time of the receipt thereof by such officer or the
sending of such facsimile and (ii) if sent by registered
or certified first-class mail, postage prepaid, on the
third Business Day following the mailing thereof.
21. GOVERNING LAW.
THIS CREDIT AGREEMENT AND EACH OF THE OTHER LOAN
DOCUMENTS, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, ARE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH
OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED
IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH OF THE
BORROWER AND THE PARENT AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE
COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF
SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON THE BORROWER OR THE PARENT BY MAIL AT THE
ADDRESS SPECIFIED IN 20. EACH OF THE BORROWER AND THE
PARENT HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH
COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
22. HEADINGS.
The captions in this Credit Agreement are for
convenience of reference only and shall not define or
limit the provisions hereof.
23. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be
executed in several counterparts and by each party on a
separate counterpart, each of which when so executed and
delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Credit
Agreement it shall not be necessary to produce or account
for more than one such counterpart signed by the party
against whom enforcement is sought.
24. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed
in connection herewith or therewith express the entire
understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit
Agreement nor any term hereof may be changed, waived,
discharged or terminated, except as provided in 27.
25. WAIVER OF JURY TRIAL.
EACH OF BORROWER, THE PARENT, THE ADMINISTRATIVE
AGENT AND EACH BANK HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF
ANY DISPUTE IN CONNECTION WITH THIS CREDIT AGREEMENT, THE
NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR
OBLIGATIONS HEREUNDER OR THEREUNDER OR THE PERFORMANCE OF
SUCH RIGHTS AND OBLIGATIONS. EXCEPT AS PROHIBITED BY LAW,
EACH OF THE BORROWER AND THE PARENT HEREBY WAIVES ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LITIGATION
REFERRED TO IN THE PRECEDING SENTENCE ANY SPECIAL,
EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES.
EACH OF THE BORROWER AND THE PARENT (I) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK OR THE
ADMINISTRATIVE AGENT HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH BANK OR THE ADMINISTRATIVE AGENT
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS AND (II) ACKNOWLEDGES THAT THE
ADMINISTRATIVE AGENT AND THE BANKS HAVE BEEN INDUCED TO
ENTER INTO THIS CREDIT AGREEMENT, THE OTHER LOAN DOCUMENTS
TO WHICH IT IS A PARTY BY, AMONG OTHER THINGS, THE WAIVERS
AND CERTIFICATIONS CONTAINED HEREIN.
26. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Except as otherwise expressly provided in this Credit
Agreement, any consent or approval required or permitted
by this Credit Agreement to be given by one or more or all
of the Banks may be given, and any term of this Credit
Agreement or of any other instrument related hereto or
mentioned herein may be amended, and the performance or
observance by the Borrower or the Parent of any terms of
this Credit Agreement or such other instrument or the
continuance of any Default or Event of Default may be
waived (either generally or in a particular instance and
either retroactively or prospectively) with, but only
with, the written consent of the Borrower and the written
consent of the Majority Banks. Notwithstanding the
foregoing, the rate of interest on the Notes, the payment
date for principal, interest or fees hereunder, the term
of the Notes, the amount of the Commitments of the Banks,
the amount of the Facility Fee hereunder, the pro rata
sharing of payments by the Borrower among the Banks as
required herein, and this 26 may not be changed nor may
the guaranty of the Parent set forth in 5 be released,
without the written consent of the Borrower and the
written consent of each Bank affected thereby; the
definition of Majority Banks may not be amended without
the written consent of all of the Banks; and the amount of
the Administrative Agent's fees and 14 may not be amended
without the written consent of the Administrative Agent.
No waiver shall extend to or affect any obligation not
expressly waived or impair any right consequent thereon.
No course of dealing or delay or omission on the part of
either Bank in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. No
notice to or demand upon the Borrower or the Parent shall
entitle the Borrower or the Parent to other or further
notice or demand in similar or other circumstances.
27. SEVERABILITY.
The provisions of this Credit Agreement are severable
and if any one clause or provision hereof shall be held
invalid or unenforceable in whole or in part in any
jurisdiction, then such invalidity or unenforceability
shall affect only such clause or provision, or part
thereof, in such jurisdiction, and shall not in any manner
affect such clause or provision in any other jurisdiction,
or any other clause or provision of this Credit Agreement
in any jurisdiction.
28. TRANSITIONAL ARRANGEMENTS.
28.1. Original Credit Agreement Superseded. This
Credit Agreement shall on the Closing Date supersede the
Original Credit Agreement in its entirety, except as
provided in this 28. On the Closing Date, the rights and
obligations of the parties evidenced by the Original
Credit Agreement shall be evidenced by this Credit
Agreement and the other Loan Documents.
28.2. Return and Cancellation of Notes. As soon as
reasonably practicable after its receipt of its Notes
hereunder on the Closing Date, the Banks will promptly
return to the Borrower, marked "Substituted" or
"Cancelled," as the case may be, any promissory notes of
the Borrower held by the Banks pursuant to the Original
Credit Agreement. In addition, the Administrative Agent
will request that any "Bank" under the Original Credit
Agreement which is not a Bank hereunder promptly return to
the Borrower, marked "Cancelled," any promissory notes of
the Borrower held by such Person pursuant to the Original
Credit Agreement.
28.3. Interest and Fees Under Superseded
Agreement. All interest and fees and expenses, if any,
owing or accruing under or in respect of the Original
Credit Agreement through the Closing Date shall be
calculated as of the Closing Date (prorated in the case of
any fractional periods), and shall be paid on the Closing
Date. Commencing on the Closing Date, the Facility Fees
shall be payable by the Borrower to the Administrative
Agent for the account of the Banks, in accordance with
2.2.
IN WITNESS WHEREOF, the undersigned have duly
executed this Credit Agreement as a sealed instrument as
of the date first set forth above.
WATTS INVESTMENT COMPANY
By:
Name:
Title:
BANKBOSTON, N.A.,
individually and as
Administrative Agent and
Competitive Bid Agent
By:
Name: Harvey H. Thayer,
Jr.
Title: Director
FIRST UNION NATIONAL BANK
By:
Name:
Title:
MELLON BANK, N.A.
By:
Name:
Title:
BROWN BROTHERS HARRIMAN &
CO.
By:
Name:
Title:
THE CHASE MANHATTAN BANK
By:
Name: A. Neil Sweeny
Title: Vice President
WATTS INDUSTRIES, INC., as
Guarantor
By:
Name:
Title:
SCHEDULE 1
Banks, Commitments, Commitment Percentages,
Domestic Lending Offices, Eurodollar Lending Offices
Bank
Bank
Amount
Commitment
Percentage
Domestic Lending Office:
Eurodollar
Lending
Office:
BankBoston, N.A.
Same
$35,000,00
0
28%
100 Federal Street, 01-
09-04
Boston, MA 02110
Attn: Harvey H. Thayer,
Jr.
The Chase Manhattan Bank
Same
$27,500,00
0
22%
999 Broad Street
Bridgeport, CT 06604
Attn: A. Neil Sweeny
Mellon Bank, N.A.
Same
$27,500,00
0
22%
One Boston Place
Boston, MA 02108
Attn: Jane Westrich
First Union National Bank
Same
$27,500,00
0
22%
One First Union Center
301 South College Street
Charlotte, NC 28288
Attn: Ted Noneman
Brown Brothers Harriman &
Co.
Same
$7,500,000
6%
40 Water Street
Boston, MA 02109
Attn: John C. Walsh
TOTAL
$125,000,0
00
100.0%
SCHEDULE 6.3
WATTS INDUSTRIES, INC. - CAPITAL LEASES
US $
COMPANY DESCRIPTION BALANCE
ANDERSON-BARROWS Manufacturing & Office Equipment $73,965
CIRCLE SEAL CONTROLS Manufacturing & Office Equipment 111,027
WATTS BENELUX Office Equipment 30,479*
PIBIVIESSE Manufacturing & Office Equipment 137,396*
Total Capital Leases $352,867
NOTES:
* - Obligations are denominated in foreign currencies. Valuations are
current US dollar equivalents and will vary with changes in foreign
exchange rates.
The above Lease obligations are for property for which the assets and
lease obligation liability are
reflected in the balance sheet of Watts Industries, Inc. Operating
leases conveying no ownership,
covering: manufacturing and office space, equipment and vehicles have not
been included.
SCHEDULE 6.7
LITIGATION
NONE
SCHEDULE 6.13
FINANCING STATEMENTS
NONE
SCHEDULE 6.18
ENVIRONMENTAL MATTERS
NATIONAL PRIORITIES LIST SITES:
1. San Gabriel Valley, California: James Jones Company is a
potentially responsible party and its facility in El Monte,
California is located within this Site. Watts Industries,
Inc. has agreed to indemnify Tyco International, the current
owner of James Jones Company, with respect to this matter.
2. Combe Landfill North, New Jersey: Leslie Controls, Inc. has
been named as a potentially responsible party.
3. Sharkey Landfill, New Jersey: Leslie Controls, Inc. has been
named as a potentially responsible party.
4. Old Southington Landfill, Connecticut: The Contromatics
Division of Watts Regulator Company has been named as a
potentially responsible party.
5. Solvents Recovery Service of NE, Connecticut: The
Contromatics Division of Watts Regulator Company has been
named as a potentially responsible party.
STATE REMEDIATION PROJECTS:
1. Seaboard Chemical Corp., North Carolina: The Chesnee and
Regtrol Divisions of Watts Regulator Company have been named
as potentially responsible parties in this mater.
2. Jameco Industries, Inc., Wyandnach, NY: This property is
currently classified as a Class 2 site under New York law.
The company has entered into a Consent Order with the NYS DEC
and has prepared a remedial investigation plan for NYS DEC
review and approval. Previously, the site had been classified
as a Class 4 inactive site subject to a Maintenance Plan
established by the NYS DEC.
3. Industrial Solvents and Chemical Company, Pennsylvania:
Nicholson Steam Trap, Inc. has been named as a potentially
responsible party.
4. Davis Landfill, Spindale, North Carolina: This site is listed
on the North Carolina Inactive Sites list. This site
contained, among other substances, certain hazardous wastes of
the Regtrol Division of Watts Regulator Company. Watts
Regulator has removed its hazardous materials from this site
and has submitted a site closure plan to the Inactive Site
division of the North Carolina environmental agency.
5. General Aides, North Carolina: This site is listed on the
North Carolina Inactive Sites list. This site contained,
among other substances, certain hazardous wastes of the
Regtrol Division of Watts Regulator Company. Watts Regulator
has removed its hazardous materials from this site and has
submitted a site closure plan to the Inactive Site division of
the North Carolina environmental agency.
6. American Foundry, Muskogee, Oklahoma: Green Country Castings,
Inc., a subsidiary of Leslie Controls, Inc., formerly owned
and operated a foundry on this site and utilized a portion of
this premises as a landfill for certain hazardous wastes. The
Company has agreed to take the necessary steps to close this
landfill in accordance with applicable state and local
regulations.
7. Greater Muskogee Development Corp., Muskogee, Oklahoma:
Greater Muskogee Development Corp. owns the property adjacent
to the American Foundry site. Green Country Castings
deposited certain hazardous wastes on this property after
obtaining the owner's consent. The Company is currently
conducting a limited investigation of this site.
8. Nicholson Steam Trap, Inc., Wilkes-Barre, Pennsylvania:
Certain hazardous substances were released onto Nicholson's
property, the former site of its manufacturing operations.
This site has been remediated and a site closure plan has been
submitted to the Pennsylvania environmental agency.
9. Jameco Industries, Inc., Wyandanch, N.Y.: The company has
closed its operations at this facility and is required to take
certain actions in connection with this plant closing in
accordance with the laws and regulations of NYS. The majority
of these requirements have been fulfilled as of the date
hereof.
10. Jameco Industries, Inc.: In the course of the plant closing,
the company remediated certain heavy metal soil contamination
within the former plating area with the approval of the NYS
DEC.
11. Watts Regulator facility in Chesnee, South Carolina: The
company discovered indications of possible oil contamination
on the property, apparently related to the chip storage area
in the loading dock. The South Carolina DHEC was notified and
the company has taken steps to remediate this contamination.
The SC DHEC has sent a draft administrative order to the
company in connection with this matter.
12. Webster Valve, Inc., Franklin, N.H.: The company had
deposited from time to time various materials from numerous
excavations into a pile behind this facility. Upon testing in
August 1997, it was discovered that this pile contained lead
which necessitated remediation. The material in this pile has
been treated and removed from the facility. The NH DES has
issued an administrative order to Webster Valve in connection
with this matter and an appeal is pending for April 1998.
13. Webster Valve, Inc., Franklin, N.H.: The company has reported
to the NH DES that a swale along one boundary line of the
property contains lead and other substances. The company is
currently developing an RI/FS for submission to the NH DES.
14. Webster Valve, Inc., Franklin, N.H.: The NH DES has advised
the company that it received a report that foundry sand
materials containing lead and other substances had been
encased in two concrete pits underneath the foundry. Upon
investigation, the company confirmed this report and has
subsequently removed the sand from one of the two pits. The
company has requested permission from the NH DES to allow the
sand in the second pit to remain within the concrete
encasement.
15. Webster Valve, Inc., Franklin, N.H.: The company discovered
that foundry sand materials containing lead had been deposited
with Mr. Crowley, a contractor who has performed various
services for the company. Mr. Crowley owns a junkyard located
in Franklin, NH. The company reported this matter to the NH
DES and the NH DES has issued an administrative order to Mr.
Crowley. The company is currently negotiating with Mr.
Crowley and the NH DES to remove and properly dispose of any
materials sent to this site by Webster Valve.
OTHER MATTERS:
1. PBVS, Mazzo di Rho, Italy: During a Phase 1 environmental
investigation conducted during due diligence in connection
with the acquisition of PBVS, the company discovered the
existence of approximately 12 underground storage tanks on
this site.
2. PBVS/De Martin, Italy: During a Phase 1 environmental
investigation conducted during due diligence in connection
with the acquisition of PBVS, the company discovered the
existence of one underground storage tank on this site and
possible soil contamination.
3. Proposition 65/California: The James Jones facility located
in El Monte, California has been threatened with legal action
under Proposition 65 by a private environmental group for
alleged failure to properly notify the adjacent property
owners of possible lead contamination associated with its
foundry operations.
4. Proposition 65/Jameco Industries, Inc.: A non-profit
environmental group has notified Jameco Industries that it may
file legal action for violation of Proposition 65 for failure
to issue proper warnings to consumers of the potential for
lead exposure related to faucets and related plumbing products
sold by Jameco within the State of California.
5. Contromatics Division, Milford, New Hampshire: Contamination
was detected in the groundwater at the Contromatics facility
in Milford, N.H. during a Phase I study being conducted by the
Company. Groundwater monitoring was conducted pursuant to a
state agency directive and is no longer required. The Company
believes that the source of the contamination is the business
adjacent to this facility.
6. Watts ACV, Inc., Houston, Texas: A petroleum release into the
ground from certain compressors has previously occurred at the
Watts ACV facility in Houston, Texas. The Company has taken
steps to address this release and remediate the situation.
7. Webster Valve Division, Franklin, New Hampshire: A fuel oil
release previously occurred at the Webster Valve Division of
Watts Regulator Company. The Company has taken steps to
address this release and remediate the property.
8. Jameco Industries, Inc., Wyandanch, New York: Jameco
maintained a waster water treatment discharge and injection
well system on this property. The facility also had certain
underground storage tanks. Occasional excursions may have
occurred from the waste water discharge system onto and from
the property. In addition, a plume of contamination was
discovered underneath the building in the groundwater and the
soil caused by releases of hazardous substances from within
the plant.
The company has been notified of a potential claim for
migration of hazardous materials onto property adjacent to the
facility. The owner of that property has requested that she
be compensated for the damage to her property.
9. There were underground storage tanks at the Jameco Industries
facility in Wyandanch, N.Y., which have been removed pursuant
to a voluntary RI/FS with the NYSDEC. There are underground
storage tanks on the site of the Aerodyne Division of Circle
Seal Corporation as well as on the American Foundry site in
Muskogee, Oklahoma, which site was formerly owned and operated
by Green Country Castings, an indirect subsidiary of the
Company. In addition, other facilities may have underground
storage tanks.
SCHEDULE 6.19
DIRECT AND INDIRECT SUBSIDIARIES OF WATTS INDUSTRIES, INC.
AS OF 3/26/98
DOMESTIC:
Watts International Sales Corp. [Massachusetts]
Watts Investment Company [Delaware]
Watts Regulator Company [Massachusetts]
Watts Securities Corp. [Massachusetts]
Circle Seal Controls, Inc. [Delaware]
Green Country Castings, Inc. [Oklahoma]
KF Industries, Inc. [Oklahoma]
KF Sales Corp. [Delaware]
Rudolph Labranche, Inc. [New Hampshire]
Leslie Controls, Inc. [New Jersey]
Spence Engineering Company, Inc. [Delaware]
Watts Drainage Products, Inc.[Delaware][formerly Ancon U.S.A.]
Anderson-Barrows Metals Corp. [California]
Circle Seal Corporation [Delaware][formerly Jameco Acquisition]
Jameco Industries, Inc. [New York]
Webster Valve, Inc. [New Hampshire]
Ames Holdings, Inc. [Delaware]
Ames Company, Inc. [California]
Yolo-Ames Leasing Company, Inc. [California]
INTERNATIONAL:
Watts Industries (Canada) Inc. [Canada]
Watts Investment Company Canada Ltd. [Canada]
Telford Valve & Specialties, Inc. [Canada]
Woodlawn Holdings Ltd. [Canada]
Watts Industries Europe B.V. [The Netherlands]
Watts Industries France S.A. [France]
Watts Industries Germany GmbH [Germany]
Wattsco International [U.S. Virgin Islands]
Watts Ocean BV [The Netherlands]
Watts Eurotherm SA [France]
Watts UK Ltd. [United Kingdom]
Watts G.R.C. SA [Spain]
Watts Intermes AG [Switzerland]
Watts Intermes GmbH [Austria]
Watts Intermes SpA [Italy]
* Intermes UK Ltd [United Kingdom]
KF Industries Europe BV [The Netherlands]
Leslie International V.I. [Virgin Islands]
Watts M.T.R GmbH [Germany]
Ocean B.V. [The Netherlands]
Pibiviesse SpA [Italy]
B.V. Philabel [The Netherlands]
Watts AG [Switzerland]
Watts Ocean NV [Belgian]
WIG Armaturen Vertriebs, GmbH [Germany]
WSA Heizungs und Sanitartechnik GmbH [Germnay]
WIC Verwaltungs und Beteiligungs GmbH [Germany]
WLI S.r.L. [Italy][formerly ISI SpA]
Watts Londa SpA [Italy][formerly Watts ISI SpA]
In addition to the foregoing, the Company holds an 80% interest
in De Martin Srl [Italy], a 60% interest in Tianjin Tanggu Watts
Valve Company Limited, a Chinese joint venture, and a 60%
interest in Suzhou Watts Valve Co., Ltd., a Chinese joint
venture. The Company also holds a 49% interest in Jameco
International LLC.
* Dissolution pending
SCHEDULE 8.1 - INDEBTEDNESS
WATTS INDUSTRIES, INC.
US $
COMPANY CREDITOR DESCRIPTION RATE BALANCE
DEBT:
WATTS INDUSTRIES, INC. Bondholders Debentures due
December 2003 8.38% $75,000,000
WATTS REGULATOR CO. First Union Industrial
Revenue Bond Variable 5,000,000
Fleet Bank Industrial
Revenue Bond 81% Prime 500,000
SPENCE ENGINEERING First Union Industrial
Revenue Bond Variable 7,500,000
LESLIE CONTROLS First Union Industrial
Revenue Bond Variable 4,765,000
Leslie Foundation Note Prime+.5% 110,200
ANDERSON-BARROWS Former Stockholders Acquisition Note 0.00% 1,041,666
CIRCLE SEAL CONTROLS Cecil & Wilkinson Acquisition Notes 0.00% 37,500
WATTS BENELUX Generale Bank Mortgage Loan 4.75% 324,141*
WATTS FRANCE CIDISE Mortgage Loan 11.50% 14,972*
ANVAR Advance Loan 0.00% 162,734*
ANVAR Advance Loan 0.00% 32,547*
WATTS GERMANY Landes Girokasse Mortgage Loan 6.50% 218,174*
Landes Girokasse Long Term Loan 6.00% 51,271*
WATTS ITALY Mediocredito T.A.A. Long Term Loan 7.60% 1,039,906*
Mediocredito T.A.A. Long Term Loan 7.20% 376,731*
PIBIVIESSE Ministry of Industry Long Term Loan 424,377*
TANGGU WATTS VALVE CO. LTD. Bank of China Bank Loan 6.00% 240,674*
Total Classified Debt $96,839,893
OTHER INDEBTEDNESS:
WATTS CANADA BankBoston Letter of Credit -Purchases 0.00% 5,460*
WATTS ITALY Tecnofin Trentina Government Loan 5.00% 34,388*
WATTS INDUSTRIES, INC. City of Palmdale Government Grant 0.000% 411,336
First Union Letter of Credit-Insurance 0.375% 1,504,747
Credit LyonnaisLetter of Credit-Insurance 0.30% 13,210,444
BankBoston Letter of Credit-Purchases 0.00% 383,104
BankBoston Letter of Credit-Performance
Bonds 0.00% 57,489
Brown Brothers Letter of Credit-Hartford
Specialty 0.00% 100,000
on behalf of Leslie Controls
WATTS REGULATOR CO. BankBoston Letter of Credit-Purchases 0.00% 8,108,418
KF INDUSTRIES INC. BankBoston Letter of Credit-Performance
Bonds 0.00% 32,444
TANGGU WATTS
VALVE CO. LTD. Tanggu Valve Co,
Ltd. Minority Interest
to Shareholder 0.00% 7,506,417*
SUZHOU WATTS
VALVE CO. LTD. Sufa Valve Co,
Ltd. Minority Interest
to Shareholder 0.00% 4,271,797*
Total Other Indebtedness $35,626,044
CAPITAL LEASES:
ANDERSON-BARROWS Various Capital Leases 12-15% $73,965
CIRCLE SEAL CONTROLS Various Various Office &
Equipment Lease Various 111,027
WATTS BENELUX Hewlett Packard HP Lease 8.50% 30,479*
PIBIVIESSE Various Various Office &
Equipment Lease Various 137,396*
Total Capital Leases $352,867
Total Indebtedness including Capital Leases $132,818,804
NOTES:
* - Obligations are denominated in foreign currencies. Valuations are
current US dollar equivalents and will vary with changes in foreign exchange
rates.
Watts Industries, Inc. has guaranteed certain agreements in connection with
the acquisition of certain assets or entities, which agreements contain
various indemnification provisions and other covenants which the
corporation may be required to fullfill.
SCHEDULE 8.2 - MORTGAGES
WATTS INDUSTRIES, INC.
US $
COMPANY CREDITOR DESCRIPTION RATE BALANCE
WATTS BENELUX Generale Bank Mortgage Loan 4.75% 324,141*
WATTS FRANCE CIDISE Mortgage Loan 11.50% 14,972*
WATTS GERMANY Landes Girokasse Mortgage Loan 6.50% 218,174*
TOTAL MORTGAGES 557,287
WATTS INDUSTRIES, INC. - LIENS
WATTS INDUSTRIES, INC.
US $
COMPANY CREDITOR DESCRIPTION BALANCE
WATTS REGULATOR CO. First Union-IRB Manufacturing Bldg and Machinery 5,000,000
Shawmut-IRB Manufacturing Bldg and Machinery 500,000
SPENCE ENGINEERING First Union-IRB Manufacturing Bldg and Machinery 7,500,000
LESLIE CONTROLS First Union-IRB Manufacturing Bldg and Machinery 4,765,000
VARIOUS Various See Schedule 8.1 Capital Lease
Listing 352,867
$18,117,867
NOTES:
* - Obligations are denominated in foreign currencies. Valuations are
current US dollar equivalents and will vary with changes in foreign exchange
rates.
All mortgages and liens listed above are included in the
Watts Industries, Inc. 8.1 Schedule of Indebtedness.
SCHEDULE 8.3 - INVESTMENTS
WATTS INDUSTRIES, INC.
% US$
COMPANY DESCRIPTION INTEREST RATE OWNERSHIP BOOK VALUE
MONEY MARKET FUNDS:
WATTS INDUSTRIES, INC.
Fidelity Institutional
B Dom Govt 5.38% - varies 100% $0
WATTS INVESTMENT COMPANY
Dreyfus/Laurel
Institutional Govt. 5.44% - varies 100% 816,000
WATTS SECURITIES CORP
Evergreen TRS FND
#656 4.90% - varies 100% 117,000
WATTS FRANCE Credit Lyonnaisa
10-30 day CDs/DDA 3.1-3.6%-varies 100% 1,682,181 *
Total Money Market Fund Investments $2,615,181
INVESTMENT IN JOINT VENTURES AND PARTIALLY OWNED SUBSIDIARIES:
WATTS INVESTMENT
COMPANY Tianjin Tanggu Watts Valve Co., Ltd Cost 60% $8,500,000
Suzhou Watts Valve Company, Ltd. Cost 60% 6,000,000
WATS REGULATOR
COMPANY Jameco International LLC Equity 49% 68,000
WATTS ITALY De Martin S.r.l Cost 80% 320,382
Total Joint Venture and Partially Owned Subsidiary Investments $14,888,382
NOTES:
* - Obligations are denominated in foreign currencies. Valuations are
current US dollar equivalents and will vary with changes in foreign exchange
rates.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM MARCH 31, 1998 FINANCIAL STATEMENTS
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUN-30-1998
<PERIOD-END> MAR-31-1998
<CASH> 9,954
<SECURITIES> 257
<RECEIVABLES> 148,984
<ALLOWANCES> 8,592
<INVENTORY> 192,024
<CURRENT-ASSETS> 379,458
<PP&E> 298,996
<DEPRECIATION> 140,609
<TOTAL-ASSETS> 671,599
<CURRENT-LIABILITIES> 130,823
<BONDS> 134,589<F1>
<COMMON> 2,715
0
0
<OTHER-SE> 364,866
<TOTAL-LIABILITY-AND-EQUITY> 671,599
<SALES> 542,273
<TOTAL-REVENUES> 542,273
<CGS> 350,424
<TOTAL-COSTS> 471,999 <F2>
<OTHER-EXPENSES> 7,188 <F3>
<LOSS-PROVISION> 1,362
<INTEREST-EXPENSE> 7,653
<INCOME-PRETAX> 63,086
<INCOME-TAX> 21,816
<INCOME-CONTINUING> 41,270
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 41,270
<EPS-PRIMARY> $1.52
<EPS-DILUTED> $1.51
<FN>
<F1> INCLUDES LONG-TERM DEBT AND CURRENT PORTION
<F2> INCLUDES ONLY COST OF GOODS SOLD AND OPERATING EXPENSES.
<F3> INCLUDES INTEREST EXPENSE AND LOSS PROVISION SHOWN BELOW.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM MARCH 31, 1997 FINANCIAL STATEMENTS
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
THIS SCHEDULE HAS BEEN RESTATED TO REFLECT THE ADOPTION OF
FINANCIAL ACCOUNTING STANDARDS BOARD STATEMENT NO 128,
" EARNINGS PER SHARE".
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-END> MAR-31-1997
<CASH> 3,380
<SECURITIES> 0
<RECEIVABLES> 140,972
<ALLOWANCES> 7,855
<INVENTORY> 184,200
<CURRENT-ASSETS> 355,439
<PP&E> 275,379
<DEPRECIATION> 124,087
<TOTAL-ASSETS> 629,756
<CURRENT-LIABILITIES> 136,511
<BONDS> 135,052<F1>
<COMMON> 2,704
0
0
<OTHER-SE> 323,799
<TOTAL-LIABILITY-AND-EQUITY> 629,756
<SALES> 534,419
<TOTAL-REVENUES> 534,419
<CGS> 350,181
<TOTAL-COSTS> 468,268<F2>
<OTHER-EXPENSES> 1,140<F3>
<LOSS-PROVISION> 482
<INTEREST-EXPENSE> 7,938
<INCOME-PRETAX> 65,011
<INCOME-TAX> 24,818
<INCOME-CONTINUING> 40,193
<DISCONTINUED> 79
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 40,272
<EPS-PRIMARY> $1.48
<EPS-DILUTED> $1.47
<FN>
<F1> INCLUDES LONG-TERM DEBT AND CURRENT PORTION
<F2> INCLUDES ONLY COST OF GOODS SOLD AND OPERATING EXPENSES.
<F3> INCLUDES INTEREST EXPENSE AND LOSS PROVISION SHOWN BELOW.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION
EXTRACTED FROM SEPTEMBER 30, 1996 FINANCIAL STATEMENTS
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
THIS SCHEDULE HAS BEEN RESTATED TO REFLECT THE ADOPTION OF
FINANCIAL ACCOUNTING STANDARDS BOARD STATEMENT NO 128,
" EARNINGS PER SHARE".
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-END> SEP-30-1996
<CASH> 0
<SECURITIES> 0
<RECEIVABLES> 126,254
<ALLOWANCES> 8,129
<INVENTORY> 183,699
<CURRENT-ASSETS> 343,319
<PP&E> 150,295
<DEPRECIATION> 116,944
<TOTAL-ASSETS> 586,028
<CURRENT-LIABILITIES> 142,409
<BONDS> 101,708<F1>
<COMMON> 2,753
0
0
<OTHER-SE> 310,205
<TOTAL-LIABILITY-AND-EQUITY> 586,028
<SALES> 176,008
<TOTAL-REVENUES> 176,008
<CGS> 115,652
<TOTAL-COSTS> 153,742<F2>
<OTHER-EXPENSES> (3,728)<F3>
<LOSS-PROVISION> 174
<INTEREST-EXPENSE> 2,754
<INCOME-PRETAX> 25,994
<INCOME-TAX> 10,440
<INCOME-CONTINUING> 15,554
<DISCONTINUED> 79
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 15,633
<EPS-PRIMARY> $.56
<EPS-DILUTED> $.56
<FN>
<F1> INCLUDES LONG-TERM DEBT AND CURRENT PORTION
<F2> INCLUDES ONLY COST OF GOODS SOLD AND OPERATING EXPENSES.
<F3> INCLUDES INTEREST EXPENSE AND LOSS PROVISION SHOWN BELOW.
</FN>
</TABLE>
