<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
( X ) QUARTERLY REPORT ( ) TRANSITION REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly
Period Ended December 31, 1996 Commission File No. 1-10739
----------------- -------
SENSORMATIC ELECTRONICS CORPORATION
- -------------------------------------------------------------------------------
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C>
Delaware 34-1024665
- ------------------------------------------------ -----------------------------------------
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification Number)
organization)
</TABLE>
951 Yamato Road, Boca Raton, Florida 33431-0700
- -------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(561) 989-7000
- -------------------------------------------------------------------------------
(Registrant's telephone number, including area code)
Same
- -------------------------------------------------------------------------------
Former name, former address and former fiscal year, if changed since
last report)
Indicate by check mark whether the Registrant (1) has filed all reports required
to be filed by Sections 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 .
--- ---
The Registrant had outstanding 74,039,265 shares of Common Stock (par value $.01
per share) as of January 31, 1997.
<PAGE> 2
SENSORMATIC ELECTRONICS CORPORATION
INDEX
FORM 10-Q
SIX MONTHS ENDED DECEMBER 31, 1996
<TABLE>
<CAPTION>
Page
----
<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Consolidated Condensed Balance Sheets................................... 2
Consolidated Condensed Statements of
Operations ........................................................... 3
Consolidated Condensed Statements of
Cash Flows............................................................ 4
Notes to Consolidated Condensed
Financial Statements.................................................. 5
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of
Operations............................................................ 10
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.......................................................... 16
Item 4. Submission of Matters to a
Vote of Security Holders.............................................. 17
Item 6. Exhibits and Reports on Form 8-K........................................... 18
Signatures ........................................................................... 19
</TABLE>
<PAGE> 3
SENSORMATIC ELECTRONICS CORPORATION
CONSOLIDATED CONDENSED BALANCE SHEETS
(In millions, except par value amounts)
<TABLE>
<CAPTION>
(Unaudited)
December 31, June 30,
1996 1996
-------- --------
ASSETS
<S> <C> <C>
CURRENT ASSETS:
Cash and marketable securities (including marketable securities
of $2.5 at December 31, 1996 and $3.2 at June 30, 1996) $ 73.9 $ 116.9
Accounts receivable, net 244.9 244.0
Current portion of deferred and installment receivables, net 20.1 22.9
Current portion of net investment in sales-type leases 43.0 29.0
Inventories, net 167.8 157.8
Current portion of deferred income taxes 23.4 29.3
Other current assets 65.8 33.9
-------- --------
TOTAL CURRENT ASSETS 638.9 633.8
Deferred and installment receivables, net 7.2 41.3
Net investment in sales-type leases 149.1 111.3
Revenue equipment, net 75.7 56.9
Property, plant and equipment, net 150.1 147.8
Costs in excess of net assets acquired, net 506.2 487.5
Deferred income taxes 100.4 96.9
Patents and other assets, net 61.7 54.8
-------- --------
TOTAL ASSETS $1,689.3 $1,630.3
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Short-term debt $ 60.7 $ 24.8
Accounts payable 58.1 59.9
Other current liabilities and deferred income taxes 191.3 174.5
-------- --------
TOTAL CURRENT LIABILITIES 310.1 259.2
Long-term debt 492.9 491.7
Other noncurrent liabilities and deferred income taxes 41.1 47.7
-------- --------
TOTAL LIABILITIES 844.1 798.6
STOCKHOLDERS' EQUITY:
Preferred stock, $.01 par value, 10.0 shares authorized -- --
Common stock, $.01 par value, 74.0 and 73.9 shares outstanding
at December 31, 1996 and June 30, 1996, respectively 727.3 723.8
Retained earnings 181.7 181.8
Treasury stock at cost and other (12.7) (13.4)
Currency translation adjustments (51.1) (60.5)
-------- --------
TOTAL STOCKHOLDERS' EQUITY 845.2 831.7
-------- --------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $1,689.3 $1,630.3
======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
2
<PAGE> 4
SENSORMATIC ELECTRONICS CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS (Unaudited)
(In millions, except per share amounts)
<TABLE>
<CAPTION>
Three Months Six Months
Ended December 31, Ended December 31,
-------------------- --------------------
1996 1995 1996 1995
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Revenues:
Sales $ 212.2 $ 201.9 $ 417.2 $ 438.0
Rentals 14.6 13.2 27.1 25.6
Installation, maintenance and other 29.8 29.5 58.3 48.2
-------- -------- -------- --------
Total revenues 256.6 244.6 502.6 511.8
-------- -------- -------- --------
Operating costs and expenses:
Costs of sales 132.1 143.2 262.2 280.2
Depreciation on revenue equipment 5.7 6.7 10.3 11.1
Selling, general and administrative 90.7 139.9 181.1 225.9
Restructuring charges -- 42.8 -- 42.8
Research, development and engineering 6.1 7.2 11.5 13.9
Amortization of intangible assets 4.7 3.7 9.3 8.0
-------- -------- -------- --------
Total operating costs and expenses 239.3 343.5 474.4 581.9
-------- -------- -------- --------
Operating income/(loss) 17.3 (98.9) 28.2 (70.1)
-------- -------- -------- --------
Other (expenses)/ income:
Interest income 4.3 4.1 8.6 7.8
Interest expense (12.0) (8.5) (23.6) (17.2)
Other, net (1.1) (1.9) (1.8) (2.2)
-------- -------- -------- --------
Total other (expenses)/income (8.8) (6.3) (16.8) (11.6)
Income/(loss) before income taxes 8.5 (105.2) 11.4 (81.7)
Provision/(benefit) for income taxes 2.4 (40.1) 3.2 (33.5)
-------- -------- -------- --------
Net income/(loss) $ 6.1 ($ 65.1) $ 8.2 ($ 48.2)
======== ======== ======== ========
Primary earnings/(losses) per common share $ 0.08 ($ 0.88) $ 0.11 ($ 0.65)
======== ======== ======== ========
Cash dividends per common share $ 0.055 $ 0.055 $ 0.110 $ 0.110
======== ======== ======== ========
Common shares used in computation of
primary earnings/(losses) per common share 74.2 73.5 74.1 73.4
======== ======== ======== ========
</TABLE>
The accompanying notes are an integral part of these financial statements.
3
<PAGE> 5
SENSORMATIC ELECTRONICS CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS (UNAUDITED)
(In millions)
<TABLE>
<CAPTION>
Six Months
Ended December 31,
-------------------------------
1996 1995
-------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income/(loss) $ 8.2 $(48.2)
Adjustments to reconcile net income/(loss) to net cash
used in operating activities:
Depreciation and amortization 32.4 23.6
Restructuring charges, net -- 42.8
Other non-cash charges to operations, net 14.4 63.8
Net changes in operating assets and liabilities,
net of effects of acquisitions:
Increase in receivables and sales-type leases (35.3) (70.2)
(Increase)/decrease in inventories (10.3) 15.6
Net increase in other operating assets and liabilities (29.9) (55.3)
------ ------
Net cash used in operating activities (20.5) (27.9)
------ ------
CASH FLOWS FROM INVESTING ACTIVITIES:
Capital expenditures (20.8) (35.3)
Increase in revenue equipment, net of deletions (18.8) (20.3)
Business acquisition, net of cash acquired (14.8) (7.0)
Other, net 0.7 0.5
------ ------
Net cash used in investing activities (53.7) (62.1)
------ ------
CASH FLOWS FROM FINANCING ACTIVITIES:
Bank borrowings and other debt 37.1 101.0
Issuance of common stock under employee benefit plans 3.5 10.6
Dividends paid (8.3) (8.1)
Other, net (0.4) (1.0)
------ ------
Net cash provided by financing activities 31.9 102.5
------ ------
Net (decrease)/increase in cash (42.3) 12.5
Cash at beginning of the year 113.7 43.6
------ ------
Cash at end of the period 71.4 56.1
Marketable securities at end of the period 2.5 27.5
------ ------
Cash and marketable securities at end of the period $ 73.9 $ 83.6
====== ======
</TABLE>
The accompanying notes are an integral part of these financial statements.
4
<PAGE> 6
SENSORMATIC ELECTRONICS CORPORATION
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Dollars in Millions)
a) Basis of Presentation
The accompanying unaudited consolidated condensed financial statements
have been prepared in accordance with generally accepted accounting
principles for interim financial information and with the instructions
to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not
include all of the information and notes required by generally accepted
accounting principles for complete financial statements. In the opinion
of management, all adjustments (consisting of normal recurring
accruals) considered necessary for a fair presentation have been
included. Operating results for the three and six month period ended
December 31, 1996 are not necessarily indicative of the results that
may be expected for the year ending June 30, 1997. For further
information, refer to the consolidated financial statements and notes
thereto included in the Company's Annual Report on Form 10-K for the
year ended June 30, 1996.
In fiscal 1996, the Company changed its presentation from an
unclassified to a classified balance sheet. The Company believes this
change provides a better presentation of the Company's financial
position and conforms with industry practice.
b) Restructuring and Special Charges
During the second quarter of fiscal 1996, the Company initiated an
extensive and systematic review of its global operations, cost
structure and balance sheet aimed at reducing its operating expenses,
manufacturing costs and increasing efficiencies. As a result, the
Company recorded restructuring and special charges totaling $186.0
pretax in the second and third quarters of fiscal 1996 primarily for
product rationalization and related equipment impairment charges,
facility closure and severance costs, and increases in the valuation
allowances for doubtful accounts receivable and inventories. The
restructuring and special charges recorded in the second quarter of
fiscal 1996 were $42.8 and $69.1 pretax, respectively. The special
charges recorded in the second quarter of fiscal 1996 were as follows:
$15.1 in costs of sales, $1.6 in depreciation on revenue equipment,
$51.9 in selling, general and administrative, and $.5 in research,
development and engineering expenses.
Approximately $33.3 of the total restructuring costs recorded in fiscal
1996 of $85.3 will result in cash outlays, of which $15.0 was paid as
of December 31, 1996. During the first six months of fiscal 1997, the
restructuring reserve was reduced by approximately $10.0 as a result of
cash and non-cash charges. The following table sets forth the details
and the cumulative activity of the restructuring charges as of December
31, 1996:
<TABLE>
<CAPTION>
Non-cash Reserve
Fiscal 1996 Cash (Reductions)/ Balance at
Provision Reductions Adjustments December 31, 1996
- -------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Product rationalization, related
equipment charges and other $ 45.3 $ -- $ (38.7) $ 6.6
Closure of facilities and related costs 23.5 (1.9) (4.3) 17.3
Employee termination and related costs 16.5 (13.1) .1 3.5
- -------------------------------------------------------------------------------------------------------------------
Total $ 85.3 $ (15.0) $ (42.9) $ 27.4
- -------------------------------------------------------------------------------------------------------------------
</TABLE>
5
<PAGE> 7
The restructuring plan is expected to be substantially completed prior
to the end of calendar year 1997 and the Company believes the
provisions recorded are adequate to cover the costs associated with
this plan.
c) Receivables and Net Investment in Sales-Type Leases
Amounts due to the Company in the form of accounts receivable (which
are due within 90 days), deferred receivables (which are generally due
within one year), installment receivables (which generally have
periodic payments over a term of five years) and net investment in
sales-type leases (which have periodic payments over lease terms from
five to six years) at December 31, 1996 and June 30, 1996 are
summarized as follows:
<TABLE>
<CAPTION>
December 31 June 30
----------- -------
<S> <C> <C>
Accounts receivable $278.2 $276.1
Allowance for doubtful accounts (33.3) (32.1)
------ ------
Total accounts receivable, net $244.9 $244.0
====== ======
Deferred receivables $ 10.8 $ 11.3
Installment receivables 50.8 90.6
Allowance for doubtful accounts (11.2) (13.4)
Unearned interest and maintenance (23.1) (24.3)
------ ------
Total deferred and installment receivables, net 27.3 64.2
------ ------
Less: Amounts due in 1 year, net (20.1) (22.9)
------ ------
Total noncurrent deferred and
installment receivables, net $ 7.2 $ 41.3
====== ======
Sales-type leases-minimum lease payments receivable $258.2 $206.0
Allowance for uncollectible minimum lease payments (16.0) (17.3)
Unearned interest and maintenance (50.1) (48.4)
------ ------
Total sales-type leases, net 192.1 140.3
------ ------
Less: Amounts due in 1 year, net (43.0) (29.0)
------ ------
Total noncurrent sales-type leases, net $149.1 $111.3
====== ======
</TABLE>
The Company received net proceeds of $173.4 and $210.6 from the sale or
assignment of certain of its receivables and sales-type leases in the
six months ended December 31, 1996 and 1995, respectively. The
uncollected principal balance of receivables and sales-type leases sold
which was subject to varying amounts of recourse totaled $255.9 and
$278.3 at December 31, 1996 and 1995, respectively. Adequate reserves
have been provided for receivables and leases sold and are included in
accrued liabilities.
In addition to existing facilities, during July 1996, the Company
entered into a new $75.0 receivable purchase agreement facility with a
group of financial institutions. This committed facility replaced an
existing facility and allows the Company to sell certain of its U.S.
receivables on a limited recourse basis. The U.S. receivables sold
under this agreement principally include deferred and installment
6
<PAGE> 8
receivables. The Company has limited availability under certain of its
existing European receivable financing agreements and, accordingly, has
been internally financing a portion of its European customer lease
agreements. The Company is currently evaluating a global receivable
financing strategy, which would allow for expanded receivable financing
and off-balance sheet treatment under Statement of Financial Accounting
Standards No. 125, which is effective prospectively commencing January
1, 1997.
d) Inventory
Inventories are summarized as follows:
<TABLE>
<CAPTION>
December 31, 1996 June 30, 1996
----------------- -------------
<S> <C> <C>
Finished goods $133.1 $134.8
Parts 48.7 42.4
Work-in-process 20.9 18.6
------ ------
202.7 195.8
Less allowance for inventory losses (34.9) (38.0)
------ ------
Total inventories, net $167.8 $157.8
====== ======
</TABLE>
e) Debt
In December 1996, the Company entered into a $250.0 revolving credit
agreement with a group of banks led by two major U.S. financial
institutions. The new facility has a three-year term and a maturity
date of December 10, 1999. The facility replaced the Company's previous
one-year facility initiated in December 1994.
f) Financial Instruments
Interest rate agreements
The Company enters into interest rate agreements with financial
institution counterparties principally to manage interest rate exposure
associated with its sale of U.S. receivables and debt. See note 13 of
Notes to Consolidated Financial Statements in the Company's 1996 Annual
Report on Form 10-K for additional discussion.
At December 31, 1996, the Company was a party to the following interest
rate agreements:
(1) FLOATING TO FIXED SWAP AGREEMENTS
<TABLE>
<CAPTION>
Notional Expiration Fixed Rate Floating Rate
Amount Date to be Paid to be Received
- ---------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
$7.0 May 1999 7.75% 1 Month LIBOR
7.0 September 1999 5.84% 1 Month LIBOR
6.5 May 2000 6.16% 1 Month LIBOR
2.7 April 2000 6.58% 1 Month LIBOR
1.9 April 1999 4.60% 1 Month LIBOR
1.8 August 1998 4.80% 1 Month LIBOR
1.5 May 1998 4.94% 1 Month LIBOR
0.8 March 1999 4.65% 1 Month LIBOR
- ---------------------------------------------------------------------------------------------------------------------
</TABLE>
7
<PAGE> 9
The weighted average interest rates paid and received under all
such floating to fixed swap agreements at December 31, 1996 were
6.21% and 5.60%, respectively.
(2) INTEREST RATE CAP AGREEMENT
In fiscal 1995, the Company entered into an interest rate cap agreement
expiring in September 1999, with a notional amount at December 31, 1996
of $2.5. Under the agreement the Company will be paid an amount equal
to the excess, if any, of the 1 month LIBOR over 7% multiplied by the
notional amount. At December 31, 1996 there was no such excess.
Foreign currency contracts
The Company conducts business in a wide variety of currencies and
consequently enters into foreign exchange forward and option contracts
to manage exposure to fluctuations in foreign currency exchange rates.
These contracts generally involve the exchange of one currency for
another at a future date and are used to hedge substantially all of the
Company's anticipatory intercompany commitments.
At December 31, 1996, the Company owned forward contracts and options
which allow it to sell currencies for the indicated U.S. dollar
amounts, in fiscal year 1998 and 1997, as follows:
<TABLE>
<CAPTION>
1998 1997
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
French Francs $ - $ 58.6
British Pounds - 100.7
German Marks 18.9 30.9
Other 8.8 50.9
- ----------------------------------------------------------------------------------------------------------------------------
Total $ 27.7 $ 241.1
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
g) Reclassifications
Certain amounts in the prior year's consolidated condensed financial
statements have been reclassified to conform to the current year's
condensed presentation.
h) Litigation and other matters
During the first six months of fiscal 1996, a number of class actions
were filed in federal court by alleged shareholders of the Company
following announcements by the Company that, among other things, its
earnings for the quarter and year ended June 30, 1995, would be
substantially below expectations and, in the later actions or complaint
amendments, that the scope of the Company's year-end audit for the
fiscal year ended 1995 had been expanded and that results for the third
quarter of fiscal 1995 were being restated. These actions have been
consolidated. The consolidated complaint alleges, among other things,
that the Company and certain of its current and former directors,
officers and employees, as well as the Company's auditors, violated
certain Federal securities laws.
One of the claims against the Company's auditors, asserted under state
law, originally included in the consolidated complaint, has been
dismissed by the Court. That claim alleged that the Company's auditors
negligently misrepresented certain information regarding the Company
and failed to exercise reasonable care. The claims recited in the
consolidated complaint relate to the same events and
8
<PAGE> 10
occurrences as those alleged in the various actions referred
to above, updated to incorporate more recent events and occurrences and
to reflect certain information furnished to plaintiffs during pre-trial
discovery. The consolidated complaint requested certification of the
action as a class action on behalf of all purchasers of the common
stock of the Company and certain stock option traders from August 10,
1994 through October 2, 1995, including those shareholders who received
common stock of the Company in connection with the Company's merger
with Knogo. The consolidated complaint also seeks rescissory and/or
compensatory damages, pre-judgment and post-judgment interest, costs,
attorneys' fees, and other relief, and further provides that the
shareholders of the Company who received common stock of the Company in
connection with the merger with Knogo are tendering back to the Company
such shares of common stock.
The consolidated complaint supersedes all prior complaints in the
consolidated actions. By stipulation, dated September 12, 1996, the
parties to the consolidated class actions agreed to limit the proposed
class to all persons who purchased, or received through the exercise of
options, shares of common stock of the Company during the period from
August 10, 1994 through and including August 31, 1995, provided that
shares purchased on August 31, 1995 were purchased at a price of $25.25
per share or higher. The stipulated class excludes persons who acquired
common stock pursuant to the Company's merger with Knogo approved by
its shareholders in December 1994. The stipulation was approved by the
court in an order entered on September 30, 1996.
Also in September 1995, three derivative actions were filed against the
Company and its directors for breach of fiduciary duties, mismanagement
and waste of corporate assets. Those claimants are seeking, among other
relief, restitution and/or damages in favor of the Company and
imposition of a constructive trust. These actions have been
consolidated.
The Company intends to vigorously defend against the foregoing actions.
The ultimate outcome of these actions cannot presently be determined.
Accordingly, no provision for any liability that may result has been
made in the consolidated financial statements.
9
<PAGE> 11
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
The Company's consolidated condensed financial statements present a
consolidation of its worldwide operations. This discussion supplements
the detailed information presented in the Consolidated Condensed
Financial Statements and Notes thereto (which should be read in
conjunction with the financial statements and related notes contained
in the Company's 1996 Annual Report on Form 10-K) and is intended to
assist the reader in understanding the financial results and condition
of the Company.
RESULTS OF OPERATIONS - THREE MONTHS AND SIX MONTHS ENDED DECEMBER 31,
1996 COMPARED TO THREE MONTHS AND SIX MONTHS ENDED DECEMBER 31, 1995
The following discussion of operating results excludes the effects of
restructuring and special charges recorded in fiscal 1996, which are
discussed in the section "Restructuring and Special Charges" below.
Revenues
Revenues of $256.6 for the second quarter of fiscal 1997 reflect an
increase of 4.9% over revenues of $244.6 for the same period in fiscal
1996. The increase in the fiscal 1997 second quarter revenues was
primarily due to an increase in worldwide retail business revenues of
10% over the same period in fiscal 1996, partially offset by an 8.0%
decrease in revenues of the worldwide commercial/industrial business
unit. Revenues of $502.6 for the six months ended December 31, 1996
decreased 1.8%, as compared to the revenues of $511.8 for the six
months ended December 31, 1995. Revenues for the first quarter of
fiscal 1996 included a major customer roll-out order of $28.1, thus
contributing to the relative decrease when compared to fiscal 1997
year-to-date revenues. Additionally, the decrease in fiscal 1997
year-to-date revenues is due to shortages of key components and
products for certain product lines. The product shortages are primarily
a result of curtailed manufacturing in Puerto Rico as a result of
Hurricane Hortense in September 1996 and increased order activity which
was not forecasted and could not be accommodated by lower inventory
levels established in the fourth quarter of fiscal 1996.
The second quarter continued to be impacted by product shortages,
however, not to the extent experienced in the first quarter of fiscal
1997. In the second quarter, manufacturing production increased to
recoup lost production as well as meet existing demand. In connection
with the Company's Q(3) Program, which focuses on quality and process
improvements, new and improved procedures are being implemented which
are expected to improve the Company's ability to forecast manufacturing
and inventory requirements.
Consolidated EAS system revenues increased 5.8% to $138.1 in the second
quarter of fiscal 1997 and decreased 9.1% to $264.3 in the first six
months of fiscal 1997 from the comparable periods of fiscal 1996. The
increase in the second quarter EAS revenues over the comparable period
in the prior year resulted principally from increased Ultra-Max
product line revenues, which is used primarily by retail customers. The
decrease for the six months ended December 31, 1996 is principally due
to a major customer roll-out order in the first quarter of fiscal 1996
and product shortages as previously discussed. CCTV system revenues
increased 1.9% to $74.4 and 4.6% to $150.2 for the second quarter and
the first six months of fiscal 1997, respectively, from the comparable
periods of fiscal 1996. Worldwide Access Control system revenues
increased 1.1% to $13.3 in the second quarter of fiscal 1997 and
decreased 7.5% to $28.5 in the
10
<PAGE> 12
first six months of fiscal 1997 as compared to the comparable periods
of fiscal 1996. Although CCTV and Access Control system revenues
increased for the second quarter of fiscal 1997, both product lines
were negatively affected by weaker sales in the commercial/industrial
market as a result of product shortages which carried over from the
first quarter and increased competition.
Revenues generated by the Commercial/Industrial Worldwide Operations
("C/I Worldwide") decreased 8.0% and increased 1.1% in the second
quarter and first six months of fiscal 1997, respectively, as compared
to fiscal 1996. The decrease in revenues for the second quarter and the
flat revenues for fiscal 1997 are principally due to product
availability problems, especially in the CCTV product line, product
competition and integration and rationalization activities in the U.S.
and Europe. In the U.S., C/I Worldwide is completing the integration of
its acquired product companies under a single management group. The
Company is currently consolidating its C/I Worldwide business in Europe
to reduce costs and strategically position the C/I Worldwide business
within this region for future growth and improved customer support. C/I
Worldwide expects modest growth or flat revenues for the remainder of
fiscal 1997 as compared to fiscal 1996 as a result of the above
mentioned factors.
For the second quarter and the first six months of fiscal 1997, North
American retail revenues increased 26.0% and decreased 3.8%,
respectively, as compared to the same periods for fiscal 1996. For the
second quarter of fiscal 1997, Ultra Max revenues increased
approximately 29% over the year ago quarter reflecting increased sales
and numerous system upgrades by retailers. As previously indicated,
revenues for the first six months of fiscal 1997 reflect a decrease
from the same period in the prior year due to a major customer roll-out
order of $28.1 recorded in the first quarter of fiscal 1996 and product
shortages.
In Europe, retail revenues decreased 6.4% and 6.7% for the second
quarter and the first six months of fiscal 1997, respectively, as
compared to the same periods for fiscal 1996. The decrease in Europe
retail revenues is primarily attributable to operations in the U.K. as
a result of reorganization and restructuring activities. Progress has
been made through the second quarter as management works to return
these operations to profitability. Due to legislation restricting the
expansion of hypermarkets, a larger percentage of France's revenue is
attributable to equipment upgrades rather than new EAS installations.
Although the hypermarket equipment upgrade business is strong, revenue
levels in fiscal 1997 are lower as equipment upgrades generate lower
levels of revenues than new sales.
Revenues in Asia Pacific increased 22.1% and 7.9%, respectively, for
the second quarter and the first six months of fiscal 1997 as compared
to the comparable periods of fiscal 1996. Revenues in Latin America
also increased 37.9% and 24.9%, respectively, for the second quarter
and the first six months of fiscal 1997 as compared to the same periods
of fiscal 1996. In a stock purchase transaction, the Company acquired
its distributor in Argentina for cash and future contingent payments up
to approximately $5.0 during October 1996. The acquisition in Argentina
accounted for approximately 11% of the second quarter of fiscal 1997
increase in the International Retail business unit revenue as compared
to the year ago quarter.
Gross Margins
Effective fiscal 1997, the Company has classified certain customer and
engineering expenses, previously classified in selling, customer
service and administrative expenses (renamed as "selling, general and
administrative"), as a component of costs of sales. Accordingly, prior
year amounts have been reclassified to conform to the current period
presentation.
11
<PAGE> 13
Gross margins on revenues were 46.3% and 45.8% for the three and six
month periods ended December 31, 1996, respectively, compared with
45.5% and 46.4% for the comparable periods of the prior year. The three
months' increase in the gross margin is largely due to lower costs of
manufacturing as a result of increased production volume efficiencies,
as well as cost reduction efforts. The trend in quarterly gross margins
over the preceding five quarters reflects consistent improvement,
principally due to cost reduction programs, however certain segments
of the Company's markets are experiencing dynamic pricing competition.
Operating Expenses and Operating Income
Selling, general and administrative expenses, as a percentage of total
revenues, was 35.4% and 36.0% for the second quarter and the first six
months of fiscal 1997, respectively, as compared to 36.0% and 34.0% for
the comparable periods in fiscal 1996. The decrease in expenses as a
percent of revenues for the second quarter reflects the results of cost
reduction efforts. The increase in expenses for the six months ended
December 31, 1996 over the comparable period of the prior year is due
to the Company's sponsorship of the 1996 summer Olympics and
incremental investments in the Company's infrastructure aimed at
improving systems and processes. The Company completed its Olympic
sponsorship activities and related expense exposure in the first
quarter of fiscal 1997.
Research, development and engineering expenses decreased to 2.4% and
2.3% of revenue in the three and six months ended December 31, 1996 as
compared to 2.7% and 2.6% for the same periods in fiscal 1996,
respectively. Research, development and engineering expenses of $6.1 in
the second quarter increased by 13.0% as compared to the first quarter
of fiscal 1997, reflecting efforts to bring new products to market in
the second half of fiscal 1997. During fiscal 1997, the Company
expects spending for research, development and engineering to be
comparable to or slightly lower versus fiscal 1996.
Operating income for the three and six months ended December 31, 1996
increased to $17.3, or 6.7% of revenues, and decreased to $28.2, or
5.6% of revenues, respectively, versus $13.0, or 5.3% of revenues, and
$41.8, or 8.2% of revenues, respectively, for the comparable periods of
fiscal 1996.
Interest Expense and Other Income and Taxes
Net interest expense of $7.7 and $15.0 for the second quarter and first
six months of fiscal 1997, respectively, reflected an increase of $3.3
and $5.6 over the comparable periods of fiscal 1996. This increase is
primarily due to increased debt levels outstanding during the period as
well as an increase in the Company's weighted average interest rate on
its borrowings. In the third and fourth quarter of fiscal 1996, the
Company issued $350.0 of Senior Notes, the proceeds of which were used
to repay short-term U.S. and European bank borrowings and for general
corporate purposes.
The provision for income taxes for the first six months of fiscal 1997
is based on an estimated effective annual consolidated tax rate of
29.0% compared to an estimated effective annual consolidated tax
benefit of 41.0% utilized for the first six months of fiscal 1996. The
tax benefit for the prior year related primarily to the restructuring
and special charges recorded during the second and third quarter of
fiscal 1996. In August 1996, Congress repealed the favorable tax
12
<PAGE> 14
status in Puerto Rico which will be phased out over a ten year
period for years beginning after December 31, 1995. The Company does
not anticipate any immediate significant adverse effects as a result of
the new law.
The Company reported net income of $6.1, or $.08 per share, and $8.2,
or $.11 per share, for the second quarter and first six months of
fiscal 1997, respectively, as compared to a loss of $65.1, or $.88 per
share, and a loss of $48.2, or $.65 per share (including restructuring
and special charges), respectively, for the same periods of fiscal
1996, as a result of the factors discussed above.
LIQUIDITY AND CAPITAL RESOURCES
During fiscal 1997, cash and marketable securities decreased $42.3
primarily due to an increase in sales-type lease receivables,
third-party receivables from financing institutions, capital
expenditures, investments in revenue equipment and acquisitions, offset
partially by an increase in short-term bank borrowings and other debt.
The 1997 year-to-date decrease of $42.3 in cash represents a $51.0
decrease in the first quarter and an $8.7 increase in the second
quarter.
For the six month period ended December 31, 1996 cash flow used in
operating activities was $20.5 compared with cash used in operations
for the six month period ended December 31, 1995 of $27.9. The use of
cash in the six month period ended December 31, 1996 was primarily a
result of an increase in total receivables, principally sales-type
lease receivables, and an increase in third party receivables from
financing institutions. The receivables from financing institutions is
included as a component of "other current assets".
Cash flows significantly improved for the three month period ended
December 31, 1996. Operating activities for such three month period
provided cash of $33.2 compared with the negative cash flow from
operations of $53.6 in the first quarter of fiscal 1997 and $24.3 for
the same period in the prior year. The increase in cash flow for the
second quarter of fiscal 1997 as compared to the preceding quarter was
due principally to cash provided by operations and a decrease in
accounts receivables.
The Company's investing activities used $53.7 of cash in the first six
months of fiscal 1997, compared to $62.1 in the first six months of
fiscal 1996. The investing activity was principally due to capital
expenditures of $20.8, increases in the Company's investment in revenue
equipment of $18.8 and an acquisition of $14.8. The capital
expenditures principally include investments in manufacturing
operations for new production equipment and the addition of
enterprise-wide management information system software to enhance
operational efficiencies and improve customer service. The world-wide
implementation of this system is currently underway and is expected to
be complete by the end of fiscal 1998. The increases in revenue
equipment are due to the expansion of the Company's operating lease
base. As previously mentioned, the Company acquired its distributor in
Argentina during the second quarter of fiscal 1997 for cash, see above
for further discussion.
For the six month period ended December 31, 1996, financing activities
generated $31.9 of cash as compared to $102.5 in the six month period
ended December 31, 1995. Cash flows from financing activities were
principally due to additional borrowings of approximately $37.1,
primarily from the Company's unsecured revolving credit facility,
offset, in part, by cash
13
<PAGE> 15
dividends paid on common stock. The Company's percentage of
total debt to total capital was 39.6% at December 31, 1996 as compared
to 38.3% at June 30, 1996. The increase in debt is primarily due to an
increase in internally financed sales-type lease receivables.
In December 1996, the Company entered into a new $250.0 multicurrency
revolving credit agreement. The new facility has a three-year term and
a maturity date of December 10, 1999. The new facility replaced the
Company's pre-existing $320.0 line of credit.
During the first six months of fiscal 1997, the Company entered into a
new $75.0 receivables purchase agreement facility with a group of
financial institutions. This committed facility replaced an existing
facility and allows the Company to sell certain of its U.S. receivables
on a limited recourse basis. The U.S. receivables sold under this
agreement principally represent deferred and installment receivables.
The Company has limited availability under certain of its existing
European receivable financing agreements and, accordingly, has been
internally financing a portion of its European customer lease
agreements. The Company is currently evaluating a global receivable
financing strategy, which would allow for expanded receivable financing
and off-balance sheet treatment under Statement of Financial Accounting
Standards No. 125, which is effective prospectively commencing January
1, 1997.
At December 31, 1996, the Company's primary sources of liquidity
consisted of cash, committed and uncommitted lines of credit totaling
approximately $361.5 (of which approximately $60.7 was utilized) and
receivable financing agreements, all of which are available subject to
compliance with certain covenants. The Company believes that the
liquidity provided by future operations, existing cash and the
financing arrangements described above will be sufficient to meet the
Company's future capital requirements.
RESTRUCTURING AND SPECIAL CHARGES
During fiscal 1996, the Company initiated a restructuring plan with the
following objectives: (i) expense reduction and asset control, (ii)
improved processes and systems, and (iii) quality growth. The initial
phase of this plan included an extensive review of the Company's
operations and cost structure. As a result, the Company recorded
restructuring charges of $85.3 in the second and third quarters of
fiscal 1996, primarily for product rationalization and related
equipment impairment charges, facility closures and severance costs.
The Company planned for the reduction of 875 people and the sale,
disposal or termination of lease arrangements of approximately 30
locations, principally in the U.K. and U.S. As of December 31, 1996,
the planned staff reductions are substantially completed and
approximately one-half of the locations have been eliminated and the
remaining locations are in various stages of disposition. During the
first six months of fiscal 1997, the restructuring reserve was reduced
by approximately $10.0 as a result of cash and non-cash charges.
Approximately $33.3 of the restructuring costs will result in cash
outlays, of which $15.0 has been disbursed as of December 31, 1996. The
restructuring plan is expected to be substantially completed prior to
the end of calendar year 1997 and, the Company believes the provisions
recorded are adequate to cover the costs associated with this plan.
Additionally, during the second and third quarters of fiscal 1996, the
Company performed an extensive review of its balance sheet, due
primarily to the weakening in the retail industry following a poor
holiday season. As a result of this review, the Company recorded
special charges of $100.7,
14
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primarily representing increases in the valuation allowances for
doubtful accounts receivable and inventories. The special charges
recorded in the second quarter of fiscal 1996 were $69.1 and are
included in the Consolidated Statement of Operations as follows: $15.1
in costs of sales, $1.6 in depreciation on revenue equipment, $51.9 in
selling, general and administrative, and $.5 in research, development
and engineering expenses.
15
<PAGE> 17
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
Reference is made to Item 1 of Part II of the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30, 1996
and to the Company's current report on Form 8-K filed November 21,
1996.
16
<PAGE> 18
Item 4. Submission of Matters to A Vote of Security Holders
The Annual Meeting of stockholders of the Company was held on
November 22, 1996. The following business was transacted:
Two directors were voted on by 87% of the outstanding shares
with 88% of those voting for the nominees, Ronald G. Assaf and Dr.
Arthur G. Milnes.
An amendment to increase the total number of shares that may
be issued under the Company's 1995 Stock Incentive Plan by 2,000,000
shares was voted on by 86% of the outstanding shares with 76% of those
voting in favor of the amendment.
17
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Item 6. Exhibits and Reports on Form 8-K
a) Exhibits
10) Multicurrency Revolving Credit Agreement
dated December 16, 1996 with a maturity date
of December 10, 1999.
11) Computation of Earnings Per Common Share.
27) Financial Data Schedule (for SEC use only).
b) Reports on Form 8-K:
On November 21, 1996, the Company filed
a Current Report on Form 8-K with
respect to a lawsuit filed in the Court of
Chancery of the State of Delaware against
the Company and the members of its Board of
Directors by a person claiming to be a
shareholder of the Company.
18
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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 hereunto duly authorized.
SENSORMATIC ELECTRONICS CORPORATION
By /s/ Garrett E. Pierce
--------------------------------
Garrett E. Pierce
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer)
Date: February 14, 1997
19
<PAGE> 1
Exhibit 10
MULTICURRENCY
REVOLVING CREDIT AGREEMENT
dated as of December 16, 1996
among
SENSORMATIC ELECTRONICS CORPORATION,
THE FIRST NATIONAL BANK OF BOSTON, the
other lending institutions listed on Schedule 1 hereto
and
THE FIRST NATIONAL BANK OF BOSTON,
as Agent
and
NATIONSBANK, N.A. as Syndication Agent
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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1. DEFINITIONS AND RULES OF INTERPRETATION. .......................................................1
1.1. Definitions. ........................................................................1
1.2. Rules of Interpretation. ............................................................18
2. THE REVOLVING CREDIT FACILITY. .................................................................18
2.1. Commitment to Lend. .................................................................18
2.2. Facility Fee. .......................................................................19
2.3. Reduction of Total Commitment. ......................................................19
2.4. The Revolving Credit Notes. .........................................................19
2.5. Interest on Revolving Credit Loans. .................................................20
2.6. Requests for Revolving Credit Loans. ................................................20
2.7. Conversion Options. .................................................................21
2.7.1. Conversion to Different Type of Revolving Credit Loan. ...................21
2.7.2. Continuation of Type of Revolving Credit Loan. ...........................21
2.7.3. Eurocurrency Rate Loans. .................................................21
2.8. Funds for Revolving Credit Loan. ....................................................22
2.8.1. Funding Procedures. ......................................................22
2.8.2. Advances by Agent. .......................................................22
2.9. Optional Currencies. ................................................................23
2.9.1. Request for Optional Currency..............................................23
2.9.2. Exchange Rate. ...........................................................24
2.9.3. Multiple Denominations. ..................................................24
2.9.4. Repayment. ...............................................................24
2.9.5. Funding. .................................................................24
2.10. Termination of Total Commitment; Change in Control. ................................25
2.11. Swing Line Loans; Settlements........................................................25
3. REPAYMENT OF THE REVOLVING CREDIT LOANS. .......................................................27
3.1. Maturity. ...........................................................................27
3.2. Mandatory Repayments of Revolving Credit Loans. .....................................27
3.3. Optional Repayments of Revolving Credit Loans. ......................................27
4. COMPETITIVE BID LOANS. .........................................................................28
4.1. The Competitive Bid Option. .........................................................28
4.2. Competitive Bid Loan Accounts: Competitive Bid Notes. ...............................28
4.3. Competitive Bid Quote Request; Invitation for Competitive Bid Quotes. ...............29
4.4. Alternative Manner of Procedure. ....................................................29
4.5. Submission and Contents of Competitive Bid Quotes. ..................................30
4.6. Notice to Parent. ...................................................................31
4.7. Acceptance and Notice by Parent and Agent. ..........................................31
4.8. Allocation by Agent. ................................................................32
4.9. Funding of Competitive Bid Loans. ...................................................32
4.10. Funding Losses. ....................................................................32
4.11. Repayment of Competitive Bid Loans; Interest. ......................................32
4.12. Optional Repayment of Competitive Bid Loans. .......................................32
5. LETTERS OF CREDIT. .............................................................................33
5.1. Letter of Credit Commitments..........................................................33
5.1.1. Commitment to Issue Letters of Credit. ...................................33
5.1.2. Letter of Credit Applications. ...........................................33
5.1.3. Terms of Letters of Credit. ..............................................33
5.1.4. Reimbursement Obligations of Banks. ......................................33
5.1.5. Participations of Banks. .................................................34
</TABLE>
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<TABLE>
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5.2. Reimbursement Obligation of the Borrowers. ..........................................34
5.3. Letter of Credit Payments. ..........................................................34
5.4. Obligations Absolute. ...............................................................35
5.5. Reliance by Issuer. .................................................................35
5.6. Letter of Credit Fee. ...............................................................35
6. GUARANTY. ......................................................................................36
6.1. Guaranty. ...........................................................................36
6.2. Guaranty Absolute. ..................................................................36
6.3. Effectiveness; Enforcement. .........................................................37
6.4. Waiver. .............................................................................38
6.5. Concerning Joint and Several Liability of the Parent. ...............................38
6.6. Waiver. .............................................................................39
6.7. Subrogation; Subordination. .........................................................39
6.8. Currency of Payment. ................................................................40
6.9. Underlying Obligations. .............................................................40
7. CERTAIN GENERAL PROVISIONS. ....................................................................40
7.1. Closing Fee. ........................................................................40
7.2. Agent's Fee. ........................................................................40
7.3. Funds for Payments. .................................................................40
7.3.1. Payments to Agent. .......................................................40
7.3.2. No Offset, etc. ..........................................................41
7.4. Computations. .......................................................................41
7.5. Inability to Determine Eurocurrency Rate. ...........................................41
7.6. Illegality. .........................................................................42
7.7. Additional Costs, etc. ..............................................................42
7.8. Capital Adequacy. ...................................................................44
7.9. Certificate. ........................................................................45
7.10. Indemnity. .........................................................................45
7.11. Interest on Overdue Amounts. .......................................................45
7.12. Lending Office. ....................................................................45
7.13. Replacement Banks. .................................................................46
8. REPRESENTATIONS AND WARRANTIES. ................................................................46
8.1. Corporate Existence and Power. ......................................................46
8.2. Corporate and Governmental Authorization; No Contravention. .........................47
8.3. Binding Effect. .....................................................................47
8.4. Financial Information. ..............................................................47
8.5. No Litigation. ......................................................................48
8.6. Compliance with ERISA. ..............................................................48
8.7. Compliance with Laws; Payment of Taxes. .............................................48
8.8. Subsidiaries. .......................................................................49
8.9. Investment Company Act. .............................................................49
8.10. Public Utility Holding Company Act. ................................................49
8.11. Ownership of Property; Liens. ......................................................49
8.12. No Default. ........................................................................49
8.13. Full Disclosure. ...................................................................49
8.14. Environmental Matters. .............................................................49
8.15. Capital Stock. .....................................................................50
8.16. Margin Stock. ......................................................................50
8.17. Insolvency. ........................................................................50
8.18. Governmental Approvals. ............................................................51
8.19. No Filing, Recording Required. .....................................................51
9. AFFIRMATIVE COVENANTS OF THE BORROWER. .........................................................51
</TABLE>
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9.1. Punctual Payment. ...................................................................51
9.2. Maintenance of Office. ..............................................................51
9.3. Records and Accounts. ...............................................................52
9.4. Information. ........................................................................52
9.5. Notices. ............................................................................54
9.5.1. Environmental Events. ....................................................54
9.5.2. Notice of Litigation and Judgments. ......................................54
9.5.3. Notice of Cancellation of Factoring Arrangements. ........................54
9.6. Corporate Existence; Maintenance of Properties. .....................................54
9.7. Insurance. ..........................................................................55
9.8. Taxes. ..............................................................................55
9.9. Inspection of Properties and Books, etc. ............................................55
9.10. Compliance with Laws, Contracts, Licenses, and Permits. ............................55
9.11. Employee Benefit Plans. ............................................................56
9.12. Use of Proceeds. ...................................................................56
9.13. Material Subsidiaries. .............................................................56
9.14. Further Assurances. ................................................................56
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER. ...................................................56
10.1. Debt. ..............................................................................56
10.2. Liens. .............................................................................57
10.3. Restricted Payments. ...............................................................59
10.4. Merger or Consolidation. ...........................................................59
10.5. Sale of Assets. ....................................................................60
10.6. Environmental Matters. .............................................................61
10.7. Environmental Release. .............................................................61
10.8. Transactions with Affiliates. ......................................................61
10.9. Sale and Leaseback. ................................................................61
10.10. Subordinated Debt and Senior Notes. ...............................................61
10.11. Employee Benefit Plans. ...........................................................62
10.12. Dissolution. ......................................................................62
10.13. Use of Proceeds. ..................................................................62
10.14. Restrictions on Investments. ......................................................62
11. FINANCIAL COVENANTS OF THE BORROWERS. .........................................................63
11.1. Net Worth. .........................................................................63
11.2. Senior Debt/Total Capitalization. ..................................................63
11.3. Total Indebtedness/Total Capitalization. ...........................................63
12. CLOSING CONDITIONS. ...........................................................................63
12.1. Loan Documents. ....................................................................64
12.2. Certified Copies of Charter Documents. .............................................64
12.3. Corporate, Action. .................................................................64
12.4. Incumbency Certificate. ............................................................64
12.5. UCC Search Results. ................................................................64
12.6. Certificates of Insurance. .........................................................64
12.7. Solvency Certificate. ..............................................................64
12.8. Opinion of Counsel. ................................................................64
12.9. Payment of Fees. ...................................................................64
13. CONDITIONS TO ALL BORROWINGS. .................................................................65
13.1. Representations True; No Event of Default. .........................................65
13.2. No Legal Impediment. ...............................................................65
13.3. Governmental Regulation. ...........................................................65
14. EVENTS OF DEFAULT; ACCELERATION; ETC. .........................................................65
14.1. Events of Default and Acceleration. ................................................65
</TABLE>
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14.2. Termination of Commitments. ........................................................68
14.3. Remedies. ..........................................................................68
14.4. Distribution of Proceeds. ..........................................................68
14.5. Exchange Rate. .....................................................................69
15. SETOFF. .......................................................................................70
16. THE AGENT. ....................................................................................70
16.1. Authorization. .....................................................................70
16.2. Employees and Agents. ..............................................................71
16.3. No Liability. ......................................................................71
16.4. No Representations. ................................................................71
16.5. Payments. ..........................................................................71
16.5.1. Payments to Agent. ......................................................71
16.5.2. Distribution by Agent. ..................................................72
16.5.3. Delinquent Banks. .......................................................72
16.6. Holders of Notes. ..................................................................72
16.7. Indemnity. .........................................................................72
16.8. Agent as Bank. .....................................................................73
16.9. Resignation. .......................................................................73
17. EXPENSES. .....................................................................................73
18. INDEMNIFICATION. ..............................................................................74
19. SURVIVAL OF COVENANTS, ETC. ...................................................................75
20. ASSIGNMENT AND PARTICIPATION. .................................................................75
20.1. Conditions to Assignment by Banks. .................................................75
20.2. Certain Representations and Warranties; Limitations; Covenants. ....................76
20.3. Register. ..........................................................................77
20.4. General. ...........................................................................77
20.5. Participations. ....................................................................77
20.6. Disclosure. ........................................................................77
20.7. Assignee or Participant Affiliated with the Parent. ................................78
20.8. Miscellaneous Assignment Provisions. ...............................................78
20.9. Assignment by Borrowers. ...........................................................78
21. NOTICES, ETC. .................................................................................78
22. GOVERNING LAW. ................................................................................79
23. HEADINGS. .....................................................................................79
24. COUNTERPARTS. .................................................................................79
25. ENTIRE AGREEMENT, ETC. ........................................................................79
26. WAIVER OF JURY TRIAL. .........................................................................80
27. CONSENTS, AMENDMENTS, WAIVERS, ETC. ...........................................................80
28. SEVERABILITY. .................................................................................80
</TABLE>
<PAGE> 6
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SCHEDULES
Schedule 1 Banks; Commitments
Schedule 8.8 Subsidiaries
Schedule 10.1 Debt
Schedule 10.2 Liens
EXHIBITS
Exhibit A Revolving Credit Note
Exhibit B Loan Request
Exhibit C Swing Line Note
Exhibit D Competitive Bid Note
Exhibit E Competitive Bid Quote Request
Exhibit F Invitation for Competitive Bid Quotes
Exhibit G Competitive Bid Quote
Exhibit H Notice of Acceptance or Non-acceptance
Exhibit I Compliance Certificate
Exhibit J Subordination Provisions
Exhibit K Assignment and Acceptance
Exhibit L Form of Election Request
<PAGE> 7
MULTICURRENCY
REVOLVING CREDIT AGREEMENT
This MULTICURRENCY REVOLVING CREDIT AGREEMENT is made as of December
16, 1996, by and among (a) SENSORMATIC ELECTRONICS CORPORATION (the "Parent"), a
Delaware corporation having its principal place of business at 951 Yamato Road,
Boca Raton, Florida, (b) the other Borrowing Subsidiaries which may from time to
time become parties hereto in accordance with the terms hereof, (c) THE FIRST
NATIONAL BANK OF BOSTON, a national banking association, the other lending
institutions listed on Schedule 1 hereto and (d) THE FIRST NATIONAL BANK OF
BOSTON as agent for itself and such other lending institutions.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions. The following terms shall have the meanings set
forth in this Section 1 or elsewhere in the provisions of this Credit Agreement
referred to below:
Absolute Competitive Bid Loan(s). See Section 4.3(a).
Affiliate. Any Person that would be considered to be an affiliate of
the Parent under Rule 144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if the Parent were issuing
securities.
Agent. The First National Bank of Boston acting as agent for the
Banks.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110, or at such other location as the Agent may
designate from time to time.
Agent's Letter Agreement. That certain letter agreement, dated as of
December 16, 1996, between the Parent and the Agent relating to certain fees
from time to time payable by the Borrowers to the Agent, together with all
amendments and modifications thereto.
Agent's Special Counsel. Bingham, Dana & Gould LLP or such other
counsel as may be approved by the Agent.
Applicable Eurocurrency Rate. The applicable rate per annum of interest
on the Eurocurrency Loans shall be as set forth in the Pricing Table.
Applicable Facility Fee Rate. The applicable rate per annum with
respect to the Facility Fee as set forth in the Pricing Table.
Applicable L/C Rate. The applicable rate per annum on the Maximum
Drawing Amount shall be as set forth in the Pricing Table.
Applicable Percentage. For the period from (a) the Closing Date through
the date which is the first anniversary of the Closing Date, the Applicable
Percentage shall be 32%, (b) the day after the first anniversary of the Closing
Date through the date which is the second anniversary of the Closing Date, the
Applicable Percentage shall be 29.6%, (c) the day after the second anniversary
of the Closing Date through the date which is the third anniversary of the
Closing Date, the Applicable Percentgage shall be 27.2% and (c) thereafter the
Applicable Percentage shall be 24.8%.
<PAGE> 8
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Applicable Swing Line Rate. The annual rate of interest agreed upon
from time to time by FNBB and the Parent with respect to Swing Line Loans.
Assignment and Acceptance. See Section 20.1.
Balance Sheet Date. June 30, 1996.
Banks. FNBB and the other lending institutions listed on Schedule 1
hereto and any other Person who becomes an assignee of any rights and
obligations of a Bank pursuant to Section 20; provided that for purposes of any
determinination with respect to Citicorp USA, Inc. under Sections 7.5, 7.6 or
7.7 or the third sentence of Section 2.9.1, "Bank" shall be deemed to include
Citibank, N.A.
Base Rate. The higher of (a) the annual rate of interest announced from
time to time by FNBB at its head office in Boston, Massachusetts, as its "base
rate" and (b) 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. Loans bearing interest calculated by reference to the
Base Rate.
Borrower. The Parent or any Borrowing Subsidiary, and "Borrowers" shall
mean the Parent and each Borrowing Subsidiary.
Borrowing Subsidiary. A Wholly-Owned Subsidiary of the Parent which
shall have delivered to the Agent an election to become a Borrowing Subsidiary,
in substantially the form of Exhibit L hereto (the "Election Request"), duly
executed by such Wholly-Owned Subsidiary and the Parent and acknowledged by the
Agent; provided, however that at any time at which a Borrowing Subsidiary owes
no amounts hereunder, such Borrowing Subsidiary may, by written notice to the
Agent (receipt of which is acknowledged by the Agent), rescind its election to
become a Borrowing Subsidiary; and provided, further, in the event that any
Wholly-Owned Subsidiary of the Parent elects to become a Borrowing Subsidiary,
and such Subsidiary when it is a Borrower will be a Foreign Borrower that is not
organized under the laws of the Netherlands, such Subsidiary shall only be
permitted to become a Borrowing Subsidiary with the consent of all of the Banks.
Business Day. Any day on which banking institutions in Boston,
Massachusetts and New York, New York, are open for the transaction of commercial
lending business and, in addition, (a) if Eurocurrency Rate Loans are involved,
a day on which dealings in Dollars and the relevant Optional Currency and
exchange can be carried on the relevant Eurocurrency Interbank Market and Dollar
settlements of such dealings may be effected, in New York, New York and (b) if
Optional Currency is involved, a day on which dealings in Dollars and in the
relevant Optional Currency and exchange can be carried on in the principal
financial center of the country in which such currency is legal tender.
<PAGE> 9
-3-
Capital Stock. Any nonredeemable capital stock of the Parent or any
Consolidated Subsidiary (to the extent issued to a Person other than the
Parent), whether common or preferred.
Capitalized Leases. Leases under which any of the Borrowers or any of
their 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. The Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. Section 9601 et. seq. and its implementing regulations
and amendments.
CERCLIS. The Comprehensive Environmental Response Compensation and
Liability Inventory System established pursuant to CERCLA.
Change in Control. The (a) acquisition through purchase or otherwise by
any Person, or group of Persons acting in concert, directly or indirectly, in
one or more transactions, of beneficial ownership or control of securities
representing more than fifty percent (50%) of the combined voting power of the
Parent's voting stock (including the written agreement to act in concert (in a
way which could reasonably be expected to have a material impact on the
operations or methods of operation of the Parent) by Persons who beneficially
own or control securities representing more than fifty percent (50%) of the
combined voting power of the Parent's voting stock), or (b) entering into by the
Parent of a written agreement providing for or contemplating an acquisition
described in clause (a) or (c) hereof, or (c) expiration, without withdrawls
reducing such percentage to fifty percent (50%) or less, of ten (10) days
following the date on which shares representing more than fifty percent (50%) of
the combined voting power of the Parent's voting stock have been tendered
pursuant to a tender offer by any Person, including the Parent or a Subsidiary,
for securities representing more than fifty percent (50%) of the combined voting
power of the Parent's voting stock, whether or not such securities are purchased
pursuant to such tender offer, or (d) the occurrence of any change of control
under any other Debt instrument or agreement for the securitization or other
sale of receivables to which the Parent or any Subsidiary is a party. The date
on which an acquisition described in the foregoing sentence occurs is referred
to as the "Effective Date of the Change in Control".
Closing Date. The first date on which the conditions set forth in
Section 12 have been satisfied and any Loans are to be made or any Letter of
Credit is to be issued hereunder.
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, and to
participate in the issuance, extension and renewal of Letters of Credit for the
account of, the Borrowers, as the same may be reduced from time to time; or if
such commitment is terminated pursuant to the provisions hereof, zero.
Commitment Percentage. With respect to each Bank, the percentage set
forth on Schedule 1 hereto as such Bank's percentage of the aggregate
Commitments of all of the Banks (subject to automatic adjustment based upon
termination of any Commitments and reduction of the Total Commitment pursuant to
Section 2.10).
Competitive Bid Loan Accounts. See Section 4.2(a).
<PAGE> 10
-4-
Competitive Bid Loans. A borrowing hereunder consisting of one or more
loans made by any of the participating Banks whose offer to make a Competitive
Bid Loan as part of such borrowing has been accepted by the Parent under the
auction bidding procedure described in Section 4 hereof.
Competitive Bid Margin. See Section 4.5(b)(iv).
Competitive Bid Notes. See Section 4.2(b).
Competitive Bid Quote. An offer by a Bank to make a Competitive Bid
Loan in accordance with Section 4.5 hereof.
Competitive Bid Quote Request. See Section 4.3.
Competitive Bid Rate. See Section 4.5(b)(v).
Compliance Certificate. Section 9.4(c).
Consolidated or consolidated. With reference to any term defined
herein, shall mean that term as applied to the accounts of the Parent and its
Consolidated Subsidiaries, consolidated in accordance with generally accepted
accounting principles.
Consolidated Debt. At any date the Debt of the Parent and its
Consolidated Subsidiaries, determined on a consolidated basis as of such date.
Consolidated Net Income. For any period, the net income (or loss) of
the Parent and its Subsidiaries for such period, determined on a consolidated
basis in accordance with generally accepted accounting principles after
eliminating earnings or losses attributable to outstanding minority interests,
but excluding in any event (a) net earnings and losses of any Subsidiary accrued
prior to the date it became a Subsidiary; (b) net earnings and losses for any
corporation (other than a Subsidiary), substantially all the assets of which
have been acquired in any manner, realized by such other corporation prior to
the date of such acquisition; (c) net earnings and losses of any corporation
(other than a Subsidiary) with which the Parent or a Subsidiary shall have
consolidated or which shall have merged into or with the Parent or a Subsidiary
prior to the date of such consolidation or merger; (d) net earnings of any
business entity (other than a Subsidiary) in which the Parent or any Subsidiary
has an ownership interest unless such net earnings are immediately available
without legal or contractual restriction for cash distributions to the Parent or
such Subsidiary; (e) any portion of the net earnings of any Subsidiary which for
any reason is legally or contractually unavailable for payment of cash dividends
to the Parent or any other Subsidiary; (f) earnings resulting from any
reappraisal, revaluation or write-up of assets; (g) any deferred or other credit
representing any excess of the equity in any Subsidiary at the date of
acquisition thereof over the amount invested in such Subsidiary; and (h) any
reversal subsequent to March 31, 1996 of any reserve (other than a reserve
created in the ordinary course of business in accordance with generally accepted
accounting principles) except to the extent that provision for such reserve
shall have been made from income arising subsequent to March 31, 1996.
Consolidated Net Worth. The consolidated stockholders equity of the
Parent and its Subsidiaries determined in accordance with generally accepted
accounting principles.
<PAGE> 11
-5-
Consolidated Subsidiary. At any date any Subsidiary or other entity the
accounts of which, in accordance with generally accepted accounting principles,
would be consolidated with those of the Parent in its consolidated financial
statements as of such date.
Consolidated Total Assets. The total assets of the Parent and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles.
Consolidated Total Capitalization. The sum of Consolidated Net Worth
and Consolidated Debt.
Consolidated Total Interest Expense. With respect to any Person, for
any fiscal period, the aggregate amount of interest expense in respect of all
Debt of such Person and its Subsidiaries for such period, on a consolidated
basis, determined in accordance with generally accepted accounting principles
(including but not limited to all non-cash interest payments, the interest
portion of any deferred payment obligation and the interest component of
Capitalized Lease obligations).
Controlled Group. All members of a controlled up of corporations and
all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414 of the Code.
Conversion Request. A notice given by a Borrower to the Agent of a
Borrower's election to convert or continue a Revolving Credit Loan in accordance
with Section 2.7.
Credit Agreement. This Multicurrency Revolving Credit Agreement,
including the Schedules and Exhibits hereto.
Debt. With respect to any Person at any date, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (c)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (d) all obligations of such Person as lessee under capital leases, (e)
all obligations of such Person to reimburse any bank or other Person in respect
of amounts payable under a banker's acceptance, (f) all Redeemable Preferred
Stock of such Person (in the event such Person is a corporation), (g) all
obligations of such Person to reimburse any bank or other Person in respect of
amounts paid under a letter of credit or similar instrument, (h) all Debt of
others secured by a Lien on any asset of such Person, even though such Debt is
not assumed by such Person, (i) all Debt of others Guaranteed by such Person,
(j) amounts of any reserves for doubtful accounts recorded on the books of such
Person for leases, receivables and other accounts sold, factored or otherwise
disposed of by such Person, (k) solely for purposes of Sections 10.1(d), 11.2
and 11.3 hereof, and without duplication for amounts set forth in subparagraph
(j) of this definition, (i) the recourse portion of all Term Receivables sold by
such Person and (ii) the aggregate principal amount of all advances against
Trade Receivables sold or factored by such Person in excess of $75,000,000, and
(l) solely for purposes of Section 10.1(e) hereof and without duplication for
amounts set forth in subparagraph (j) of this definition, the recourse portion
of all Term Receivables and Trade Receivables sold or factored by any
Subsidiary; provided, that in no event shall "Debt" include any Factored
Receivables Obligations except as expressly provided in subparagraphs (k) and
(l) of this definition.
Default. See Section 14.1.
<PAGE> 12
-6-
Disposition. See Section 10.5.
Dollar Equivalent. With respect to any amounts denominated in a
currency other than Dollars, the amount (as conclusively ascertained by the
Agent absent manifest error) in Dollars which is or could be purchased by the
Agent (in accordance with its normal banking practices) with such amounts
denominated in such other currency in the Nassau foreign currency deposits
market for delivery on such date at the spot rate of exchange, at or about 11:00
a.m., local time at the Nassau Branch, on the date of determination.
Dollars or $. Dollars in lawful currency of the United States of
America.
Domestic Borrowers. Any Borrower which is not a Foreign Borrower.
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 Loan is converted or continued in accordance with Section
2.7.
EBITDA. With respect to any fiscal period, an amount equal to
Consolidated Net Income for such fiscal period, plus, to the extent otherwise
deducted from Consolidated Net Income and without duplication, (a) depreciation
and amortization for such period, plus (b) other noncash charges made in
calculating Consolidated Net Income for such period, plus (c) tax expense for
such period, plus (d) Consolidated Total Interest Expense for such period, all
as determined in accordance with generally accepted accounting principles.
Eligible Assignee. Any of (a) a commercial bank or financial
institution organized under the laws of the United States, or any State thereof
or the District of Columbia, and having total assets in excess of
$1,000,000,000; (b) a savings and loan association or savings bank organized
under the laws of the United States, or any State thereof or the District of
Columbia, and having a net worth of at least $100,000,000, calculated in
accordance with generally accepted accounting principles; (c) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having total assets in excess of
$1,000,000,000, provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is also
a member of the OECD; (d) the central bank of any country which is a member of
the OECD; and (e) if, but only if, any Event of Default has occurred and is
continuing, any other bank, insurance company, commercial finance company or
other financial institution or other Person approved by the Agent, such approval
not to be unreasonably withheld.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained of contributed to by the Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
Environmental Authority. Any foreign, federal, state, local or regional
government that exercises any form of jurisdiction or authority under any
Environmental Requirement.
Environmental Authorizations. All licenses, permits, orders, approvals,
notices, registrations or other legal prerequisites for conducting the business
of the Parent or any Subsidiary required by any Environmental Requirement.
<PAGE> 13
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Environmental Judgments and Orders. All judgments, decrees or orders
arising from or in any way associated with any Environmental Requirements,
whether or not entered upon consent or written agreements with an Environmental
Authority or other entity arising from or in any way associated with any
Environmental Requirement, whether or not incorporated in a judgment, decree or
order.
Environmental Liabilities. Any liabilities whether accrued, contingent
or otherwise, arising from and in any way associated with any Environmental
Requirements.
Environmental Notices. Notice from any Environmental Authority or by
any other person or entity, of possible or alleged noncompliance with or
liability under any Environmental Requirement, including without limitation any
complaints, citations, demands or requests from any Environmental Authority or
from any other person or entity for correction of any, violation of any
Environmental Requirement or any investigations concerning any violation of any
Environmental Requirement.
Environmental Proceedings. Any judicial or administrative proceeding
arising from or in any way associated with any Environmental Requirement.
Environmental Releases. Releases as defined in CERCLA or under any
applicable state or local environmental law or regulation.
Environmental Requirements. Any legal requirement relating to health,
safety or the environment and applicable to the Parent, any Subsidiary or the
Properties, including but not limited to any such requirement under CERCLA or
similar state legislation and all federal, state and local laws, ordinances,
regulations, orders, writs, decrees and common law.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single employer with
the Borrower under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Eurocurrency Competitive Bid Loan(s). See Section 4.3(a).
Eurocurrency Interbank Market. Any lawful recognized market in which
deposits of Dollars and the relevant Optional Currencies are offered by
international banking units of United States banking institutions and by foreign
banking institutions to each other and in which foreign currency and exchange
operations or eurocurrency funding operations are customarily conducted. From
the Closing Date through the date the Agent delivers a notice to the Borrowers
and the Banks of its election to change the Eurocurrency Interbank Market, the
Eurocurrency Interbank Market shall be designated as the London interbank
market.
Eurocurrency 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 Eurocurrency Rate Loans.
<PAGE> 14
-8-
Eurocurrency Offered Rate. The rate per annum determined by the Agent
to be the rate per annum quoted by the British Bankers Association at
approximately 11:00 a.m. (London time) on the date two (2) Business Days prior
to the first day of the applicable Interest Period for deposits in the relevant
currency for a period of time approximately equal to such Interest Period. Such
quotation shall be determined by the Agent either (a) by being designated as the
"London Interbank Offered Rate" on Telerate BBA LIBOR page 3750 (or such other
page as may replace such page on the Telerate service for the purpose of
displaying the London interbank offered rate) or (b) if there is no such page on
the Telerate service, by being designated as the "London Interbank Offered Rate"
on the Bloomberg LIBOR BBA Page. With respect to the Loans which will bear
interest by reference to the Eurocurrency Rate, the Agent shall select a
Eurocurrency Interbank Market (subject to the last sentence of the definition of
that term).
Eurocurrency Rate. With respect to all Eurocurrency Rate Amounts for
any Interest Period, the annual rate of interest, rounded to the nearest 1/100th
of one percent, determined by the Agent for such Interest Period in accordance
with the following formula:
Eurocurrency Rate = Eurocurrency Offered Rate
-------------------------
1-Eurocurrency Reserve Rate
Eurocurrency Rate Amounts. Any portions of the principal amount of the
Revolving Credit Loans denominated in Dollars or in an Optional Currency, on
which the Borrower has elected pursuant to Section 2.6 and Section 2.7 hereof to
pay interest based on the Eurocurrency Rate.
Eurocurrency Rate Loans. Loans bearing interest calculated by reference
to the Eurocurrency Rate.
Eurocurrency Reserve Rate. For any day with respect to a Eurocurrency
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.
Event of Default. See Section 14.1.
Excluded Taxes. All taxes in respect of, measured by or calculated by
reference to, the overall net income or profits of the Agent or any Bank,
whether worldwide or in any jurisdiction, or franchise or similar taxes imposed
in lieu thereof , or any tax arising solely as a result of the Agent's or the
respective Bank's actions or presence in the jurisdiction imposing such tax if
such actions or presence are in no manner related to the transactions
contemplated by this Credit Agreement.
Factored Receivables Obligations. Any recourse or non-recourse
obligation, guarantee or other contractual undertaking of the Parent or any
Subsidiary arising in connection with the sale, factoring or other disposition
of leases, receivables or other accounts, if such sale, factoring or
disposition, whether with or without recourse, is for a fair price (on the basis
of the face amount of the respective item, on the basis of the present value or
its income stream or on the basis of another arms' length determination)
together with the interests of the seller of such lease, receivable or other
account in the equipment or other
<PAGE> 15
-9-
property related to such lease, receivable or other account, and not at a
distress sale or other "deep" discount.
Fiscal Quarter. Any fiscal quarter of the Parent.
Fiscal Year. Any fiscal year of the Parent.
FNBB. The First National Bank of Boston, a national banking
association, in its individual capacity.
Foreign Borrowers. Any Borrowing Subsidiary that conducts substantially
all of its business in countries other than the United States of America and
that is organized under the laws of a jurisdiction other than the United States
of America and the states thereof and the Commonwealth of Puerto Rico.
generally accepted accounting principles. (a) When used in Sections
10 and 11, whether directly or indirectly through reference to a capitalized
term used therein, means (i) 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
(ii) 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 (b) when used in general, other than as provided above,
means principles that are (i) consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, as in
effect from time to time, and (ii) 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. By any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (a) to secure, purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or other obligation (whether arising by virtue
or partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to provide collateral security, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (b) entered into
for the purpose of assuring in any other manner the obligee of such Debt or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part), provided that the term Guaranteed
shall not include endorsements for collection or deposit in the ordinary course
of business.
Guaranteed Obligations. Section 6.1.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Parent 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.
<PAGE> 16
-10-
Hazardous Materials. Includes, without limitation, (a) solid or
hazardous waste, as defined in the Resource Conservation and Recovery Act of
1980, 42 U.S.C. Section 6901 et seq. and its implementing regulations and
amendments, or in any applicable state or local law or regulation, (b)
"hazardous substance", "pollutant", or "Contaminant" as defined in CERCLA, or in
any applicable state or local law or regulation, (c) gasoline, or any other
petroleum product or by-product, including, crude oil or any fraction thereof
(d) toxic substances, as defined in the Toxic Substances Control Act of 1976, or
in any applicable state or local law or regulation or (e) insecticides,
fungicides, or rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local law or
regulation, as each such Act, statute or regulation may be amended from time to
time.
Interest Coverage Ratio. As at any date of determination and with
respect to the Parent and its Subsidiaries, the ratio of (a) the sum of the
EBITDA of the Parent and its Subsidiaries for the fiscal period ending on such
date to (b) Consolidated Total Interest Expense of the Parent and its
Subsidiaries for such fiscal period.
Interest Payment Date. (a) As to any Base Rate Loan, the last day of
the calendar quarter which includes the Drawdown Date thereof; and (b) as to any
Eurocurrency Rate Loan in respect of which the Interest Period is (i) three (3)
months or less, the last day of such Interest Period and (ii) more than three
(3) months, the date that is three (3) months from the first day of such
Interest Period and, in addition, the last day of such Interest Period.
Interest Period. With respect to each Loan, (a) 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
(i) for any Base Rate Loan, the last day of the calendar quarter; and (ii) for
any Eurocurrency Rate Loan, 1, 2, 3, or 6 months; and (b) 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:
(i) if any Interest Period with respect to a Eurocurrency Rate
Loan would otherwise end on a day that is not a Eurocurrency Business
Day, that Interest Period shall be extended to the next succeeding
Eurocurrency 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
Eurocurrency Business Day;
(ii) 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;
(iii) if the Borrower shall fail to give notice as provided in
Section 2.7, the Borrower shall be deemed to have requested a
conversion of the affected Eurocurrency 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;
(iv) any Interest Period relating to any Eurocurrency Rate
Loan that begins on the last Eurocurrency 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
<PAGE> 17
-11-
Interest Period) shall end on the last Eurocurrency Business Day of a
calendar month; and
(v) any Interest Period relating to any Eurocurrency Rate 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 Debt of, or for
loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under Debt), or
obligations of, any Person. In determining the aggregate amount of Investments
outstanding at any particular time: (a) the amount of any Investment represented
by a guaranty shall be taken at not less than the principal amount of the
obligations guaranteed and still outstanding; (b) there shall be included as an
Investment all interest accrued with respect to Indebtedness constituting an
Investment unless and until such interest is paid; (c) there shall be deducted
in respect of each such Investment any amount received as a return of capital
(but only by repurchase, redemption, retirement, repayment, liquidating dividend
or liquidating distribution); (d) there shall not be deducted in respect of any
Investment any amounts received as earnings on such Investment, whether as
dividends, interest or otherwise, except that accrued interest included as
provided in the foregoing clause (b) may be deducted when paid; and (e) there
shall not be deducted from the aggregate amount of Investments any decrease in
the value thereof.
Lien. With respect to any asset, any mortgage, deed to secure debt,
deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, or encumbrance or servitude of any kind in
respect of such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or other law, or by
any agreement, contingent or otherwise, to provide any of the foregoing. For the
purposes of this Credit Agreement, the Parent or any Subsidiary shall be deemed
to own subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such asset. Notwithstanding
the foregoing, in no event shall any of the following be deemed to be a "Lien"
on any assets or other properties of any Person: (a) filings of financing
statements in respect of operating leases of such Person, sales of (and not
merely security interests in) leases, receivables and other accounts and of the
equipment or other property related to such accounts, and other similar filings
of a precautionary nature, (b) the interest of a lessee in the property subject
to a lease under which such Person is the lessor, or (c) the interest of the
purchaser or factor of leases, receivables or other accounts of such Person in
the leases, receivables or accounts sold, factored or otherwise disposed of, or
in the related equipment or other property that is the subject of such lease,
receivable or account, even if described as a Lien in the instrument pursuant to
which such sale, factoring or other disposition is effected.
Letter of Credit. See Section 5.1.1.
Letter of Credit Application. See Section 5.1.1.
Letter of Credit Participation. See Section 5.1.4.
Loan Documents. This Credit Agreement, the Notes, the Letter of Credit
Applications and the Letters of Credit.
<PAGE> 18
-12-
Loan Request. See Section 2.6.
Loans. The Revolving Credit Loans (which shall include the Swing Line
Loans) and the Competitive Bid Loans.
Majority Banks. The Banks holding fifty-one percent (51%) of the
outstanding principal amount of the Revolving Credit Loans on such date
(provided, however, in the event any Swing Line Loan is outstanding and has not
been participated to the other Banks, for purposes of this definition, each Bank
(including FNBB) will be assumed to have fully funded its participation in such
Swing Line Loan; or to the extent no Revolving Credit Loans are outstanding, the
Banks with fifty-one percent (51%) of the Total Commitment (which shall include
participating interests in the risk relating to Swing Line Loans); provided that
in the event that the Total Commitment has been terminated by the Banks and no
Revolving Credit Loans or Letters of Credit are outstanding, the Majority Banks
shall be the Banks holding fifty-one percent (51%) of the outstanding principal
amount of the Competitive Bid Loans on such date.
Material Adverse Effect. With respect to any event, act, condition or
occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), whether
singly or in conjunction with any other event or events, act or acts, condition
or conditions, occurrence or occurrences, whether or not related, a material
adverse change in, or a material adverse effect upon, any of (a) the financial
condition, operations, business, or properties which are central to the business
at such time, of the Parent and its Consolidated Subsidiaries taken as a whole,
(b) the ability of the Borrowers or the Parent to perform their respective
obligations under the Loan Documents to which it is a party, as applicable, or
(c) the legality, validity or enforceability of any Loan Document.
Material Subsidiary. As of each date of determination, any Consolidated
Subsidiary (a) whose consolidated total assets exceed five percent (5%) of
Consolidated Total Assets or (b) whose consolidated total revenues exceed ten
percent (10%) of the consolidated revenues of the Parent and its Subsidiaries
determined in accordance with generally accepted accounting principles as of the
last day of the Fiscal Quarter of the Parent most recently ended as of such date
of determination and for which financial statements have been delivered to the
Banks pursuant to Section 9.4 hereof, and in any event shall include Sensormatic
GmbH and each Borrowing Subsidiary.
Maturity Date. December 10, 1999.
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Moody's. Moody's Investors Service, Inc.
Multiemployer Plan. Any multiemployer plan within the meaning of
Section 3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
Nassau Branch. The Agent's Nassau, The Bahamas, branch office.
Net Cash Amount. In respect of any judgment or settlement, the
aggregate amount to be paid by the Parent or any of its Subsidiaries in cash
pursuant to such judgment or
<PAGE> 19
-13-
settlement on a reasonably estimated after-tax basis, net of all amounts which
are reasonably anticipated (as determined by mutual agreement of the Parent and
the Agent) to be paid by independent third party insurers in respect of such
judgment or settlement.
Note Agreement (1993). The Note Agreement dated as of January 15, 1993
pertaining to the Parent's $135,000,000 Principal Amount 8.21% Senior Notes Due
January 30, 2003, as amended by the First Amendment dated as of May 31, 1993,
and as it may be amended or supplemented from time to time.
Note Agreement (1996). The Note Agreement dated as of March 29, 1996,
pertaining to Parent's $230,000,000 Principal Amount 7.74% Senior Notes Due
March 29, 2006, $50,000,000 Principal Amount 7.11% Senior Notes Due March 29,
2001 and $70,000,000 Principal Amount 6.99% Senior Notes Due March 29, 2000, and
as it may be amended or supplemented from time to time.
Note Agreement Closing Date. The "Closing Date", as defined in the Note
Agreement (1993).
Notes. The Revolving Credit Notes, the Competitive Bid Notes and the
Swing Line Note.
Obligations. All indebtedness, obligations and liabilities of any of
the Parent and each of the other Borrowers 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 made or Reimbursement Obligations incurred or any of
the Notes, Letter of Credit Application, Letter of Credit or other instruments
at any time evidencing any thereof.
OC Notice. See Section 2.9.1.
Optional Currency. Any currency other than Dollars which is fully
convertible into Dollars and which is traded on any recognized Eurocurrency
Interbank Market selected by the Agent in good faith; provided, however, in the
event any Borrower requests an Optional Currency denominated in a currency other
than Austrian schillings, Belgian francs, German deutsche marks, Danish kroners,
Spanish pesetas, French francs, Finnish marks, British pounds sterling, Italian
liras, Dutch guilders, Norwegian kroners, Portuguese escudos, Swedish kroners or
Swiss francs, the request for such other Optional Currency shall be subject to
the consent of the Banks.
outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
Parent. See preamble.
PBGC. The Pension Benefit Guaranty Corporation created by Section
4002 of ERISA and any successor entity or entities having similar
responsibilities.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 10.2.
<PAGE> 20
-14-
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Plan. At any time an employee pension benefit plan which is covered by
Title IV of ERISA or subject to the minimum funding standards under Section 412
of the Code and is either (a) maintained by a member of the Controlled Group for
employees of any member of the Controlled Group or (b) maintained pursuant to a
collective bargaining agreement or any other arrangement under which more than
one employer makes contributions and to which a member of the Controlled Group
is then making or accruing an obligation to make contributions or has within the
preceding 5 plan years made contributions but shall not include any plan which
is maintained under the laws of Puerto Rico, is covered by Section 4021(b) of
ERISA, or is unfunded and maintained primarily for the purpose of providing
deferred compensation for a select group of management, key executives or highly
compensated employees.
Pricing Table. With respect to all Eurocurrency Rate Loans, Letters of
Credit and the facility fee, at any time of determination thereof, the
applicable annual percentage rate set forth in the table below opposite the Debt
Ratings with respect to Long Term Senior Debt of the Parent then in effect,
subject to the provisions set forth below:
<TABLE>
<CAPTION>
--------------------------------------------------------------------------------------------------------
Applicable Applicable
Facility Fee Applicable Eurocurrency
Rate L/C Rate Rate
Level Senior Public Debt Rating (per annum) (per annum) (per annum)
--------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
1 At least A - by Standard & Poor's or at 0.0900% 0.1500% Eurocurrency Rate plus
least A3 by Moody's 0.1500%
--------------------------------------------------------------------------------------------------------
2 At least BBB+ by Standard & Poor's or at 0.1000% 0.1750% Eurocurrency Rate plus
least Baa1 by Moody's 0.1750%
--------------------------------------------------------------------------------------------------------
3 At least BBB by Standard & Poor's or at 0.1250% 0.2500% Eurocurrency Rate plus
least Baa2 by Moody's 0.2500%
--------------------------------------------------------------------------------------------------------
4 At least BBB- by Standard & Poor's or at 0.1750% 0.3000% Eurocurrency Rate plus
least Baa3 by Moody's 0.3000%
--------------------------------------------------------------------------------------------------------
5 At least BB+ by Standard & Poor's or at 0.2250% 0.3750% Eurocurrency Rate plus
least Ba1 by Moody's 0.3750%
--------------------------------------------------------------------------------------------------------
6 If no other level applies or if no 0.2500% 0.5000% Eurocurrency Rate plus
rating is available 0.5000%
--------------------------------------------------------------------------------------------------------
</TABLE>
provided that:
(a) Notwithstanding anything to the contrary contained in this
definition, for the Applicable Facility Fee Rate, Applicable L/C Rate
and Applicable Eurocurrency Rate with respect to the period commencing
on the Closing Date through the date which is the earlier to occur of
(i) the Parent having obtained a Senior Public Date Rating of at least
BBB by Standard & Poor's or (ii) the Parent having demonstrated to the
<PAGE> 21
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satisfaction of the Agent an Interest Coverage Ratio for two (2)
consecutive fiscal quarters of not less than 2.75:1.00 for each such
fiscal quarter, the Applicable Facility Fee Rate, Applicable L/C Rate
and Applicable Eurocurrency Rate shall be the higher of (1) the annual
percentage rates applicable to Level 5 or (2) the annual percentage
rates applicable to the actual Senior Public Debt Rating applicable to
the Parent;
(b) In the event of a split rating by the two rating agencies with
respect to the same Long Term Senior Debt, the lower Senior Public Debt
Rating (and the higher applicable rate) shall control;
(c) In the event that only one of the two rating agencies issues a
Senior Public Debt Rating, such rating shall determine the applicable
rate;
(d) In the event that different types or series of Long Term Senior
Debt have different Senior Public Debt Ratings, the Long Term Senior
Debt with the lowest Senior Public Debt Ratings will be used to
determine the applicable rate; and
(e) Determinations of the applicable rate and any resulting adjustments
of the effective interest rates and fees with respect to Eurocurrency
Rate Loans, Letters of Credit and the Facility Fee, shall be made on a
daily basis and all adjustments shall take effect on the effective date
of any change in the applicable Senior Public Debt Rating.
Properties. All real property owned, leased or otherwise used or
occupied by the Parent or any Subsidiary, wherever located.
Rate of Exchange. See Section 2.9.2.
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.
Redeemable Preferred Stock. With respect to any Person, any preferred
stock issued by such Person which by its terms is, at any time prior to the
Maturity Date, subject to mandatory redemption by such Person for cash at the
demand of the holder of such stock. No security shall be considered "Redeemable
Preferred Stock" by reason of such security being convertible into other shares
of capital stock (whether common or preferred) or any other property other than
cash, even if the terms of redemption or conversion provide for a nominal
portion of such security to be redeemable for cash in order to avoid the
issuance of fractional shares or irregular lots of shares or for similar
purposes, but in such case only an amount equal to the probable aggregate cash
expenditure in connection with the cash redemption shall be considered
"Redeemable Preferred Stock".
Reimbursement Obligation. The obligation of a Borrower to reimburse the
Agent and the Banks on account of any drawing under any Letter of Credit as
provided in Section 5.2.
Restricted Payments. See Section 10.3.
Revolving Credit Loans. Revolving credit loans made or to be made by
the Banks to a Borrower pursuant to Section 2 (including, without limitation,
the Swing Line Loans).
Revolving Credit Note Record. A Record with respect to a Revolving
Credit Note.
<PAGE> 22
-16-
Revolving Credit Notes. See Section 2.4.
Senior Notes. The senior notes issued prior to the Closing Date under
the Note Agreement (1993) or the Note Agreement (1996).
Senior Public Debt Rating. The rating of the Parent's public unsecured
long-term senior debt, without third party credit enhancement, (the "Long Term
Senior Debt") issued by Moody's and/or Standard & Poor's, or such other rating
service or services as the Parent may designate from time to time with the
consent of the Majority Banks (each a "Successor Rating Agency"); or in the
event no Long Term Senior Debt is outstanding, the rating of this credit
facility issued by Moody's and/or Standard & Poor's or such Successor Rating
Agency upon the request of the Parent; provided that until such time as the
Parent receives such rating on such Long Term Senior Debt or this credit
facility, the Parent's corporate credit rating by Standard & Poor's or such
Successor Rating Agency shall apply. In the event Standard & Poor's, Moody's or
such Successor Rating Agency changes its debt rating designations, definitions
or symbols, the Parent and the Majority Banks shall agree as to the exact
application of such new debt rating terminology to the Pricing Table, taking
into account the explanation of such new rating terminology by Standard &
Poor's, Moody's or such Successor Rating Agency, as the case may be, and its
comparability to the Senior Debt Ratings referred to in the Pricing Table.
Subordinated Consolidated Debt. Any unsecured Consolidated Debt which
(a) is expressly subordinate in right of payment to the Obligations and the
Senior Notes pursuant to a form of subordination substantially in the form of
Exhibit J, and (b) has a Weighted Average Life to Maturity extending beyond the
Maturity Date in effect from time to time and the latest final maturity of the
Senior Notes.
Standard & Poor's. Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc.
Subsidiary. Any corporation, association, trust, or other business
entity of which the designated parent shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority (by number
of votes) of the outstanding Voting Stock.
Swing Line Loans. See Section 2.12(a).
Swing Line Note. See Section 2.12(a).
Swing Line Settlement Amount. See Section 2.12(b).
Swing Line Settling Bank. See Section 2.12(b).
Swing Line Settlement Date. See Section 2.12(b).
Swing Line Settlement. The making or receiving of, payments in
immediately available funds, by the Banks to or from the Agent in accordance
with Section 2.12 hereof to the extent necessary to cause each Bank's actual
share of the outstanding amount of the Revolving Credit Loans to be equal to
such Bank's Commitment Percentage of the outstanding amount of such Revolving
Credit Loans, in any case when, prior to such action, the actual share is not so
equal.
<PAGE> 23
-17-
Term Receivable. Any account receivable, lease or other account owned
by any Person which is not a Trade Receivable.
Third Parties. All lessees, sublessees, licensees and other users of
the Properties, excluding those users of the Properties in the ordinary course
of Parent's or any Consolidated Subsidiary's business and or a temporary basis.
Total Commitment. The sum of the Commitments of the Banks, as in effect
from time to time.
Trade Receivable. Any account receivable, lease and other account owned
by any Person with original terms of ninety (90) days or less.
Type. As to any Revolving Credit Loan, its nature as a Base Rate Loan
or a Eurocurrency Rate Loan.
Uniform Customs. With respect to any Letter of Credit, the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500 or any successor version thereto adopted
by the Agent in the ordinary course of its business as a letter of credit issuer
and in effect at the time of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which
a Borrower does not reimburse the Agent and the Banks on the date specified in,
and in accordance with, Section 5.2.
Voting Stock. Stock or similar interests, of any class or classes
(however designated), the holders of which are at the time entitled, as such
holders, to vote for the election of a majority of the directors (or persons
performing similar functions) of the corporation, association, trust or other
business entity involved, whether or not the right so to vote exists by reason
of the happening of a contingency.
Weighted Average Life to Maturity. As applied to any prepayment of
principal of the Senior Notes, or to any Subordinated Consolidated Debt, at any
date, the number of years obtained by dividing (a) the then outstanding
principal amount of the Senior Notes to be prepaid, or the then outstanding
principal amount of such Subordinated Consolidated Debt, into (b) the sum of the
products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity, or other required payment, including
payment at final maturity, foregone by virtue of such prepayment of the Senior
Notes, or in respect of such Subordinated Consolidated Debt, by (ii) the number
of years (calculated to the nearest 1/12th) which would have elapsed between
such date and the making of such payment.
Wholly Owned Subsidiary. Any Subsidiary all of the shares of capital
stock or other ownership interests of which (except directors' qualifying shares
and, in the case of certain Subsidiaries which are not U.S. Persons, nominal
shares held by non-U.S. Persons in accordance with applicable laws) are at the
time directly or indirectly owned by the Parent. Each Borrower other than the
Parent is a Wholly Owned Subsidiary.
<PAGE> 24
-18-
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 "Section " refers to that
section of this Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of
like import shall refer to this Credit Agreement as a whole and not to
any particular section or subdivision of this Credit Agreement.
2. THE REVOLVING CREDIT FACILITY.
2.1. Commitment to Lend. Subject to the terms and conditions set forth
in this Credit Agreement, each of the Banks severally agrees to lend to any
Borrower and any Borrower may borrow, repay, and reborrow from time to time
between the Closing Date and the Maturity Date upon notice by such Borrower to
the Agent given in accordance with Section 2.6, such sums, in Dollars and/or at
any Borrower's option from time to time, subject to Section 2.9 hereof
(including, without limitation, any restrictions arising from currency
fluctuations as set forth in Section 2.9.4), in an Optional Currency, as are
requested by any Borrower up to a maximum aggregate amount outstanding (after
giving effect to all amounts requested, and including any Bank's participating
interest in any Swing Line Loans outstanding) at any one time equal to such
Bank's Commitment minus such Bank's Commitment Percentage of the sum of the
Maximum Drawing Amount and all Unpaid Reimbursement Obligations, provided that
the sum of the outstanding amount of the Revolving Credit Loans (after giving
effect to all amounts requested) and the Competitive Bid Loans plus the Maximum
Drawing Amount and all Unpaid Reimbursement Obligations 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 Borrowers that the
<PAGE> 25
-19-
conditions set forth in Section 12 and Section 13, in the case of the initial
Revolving Credit Loans to be made on the Closing Date, and Section 13, in the
case of all other Revolving Credit Loans, have been satisfied on the date of
such request. Each Base Rate Loan shall be denominated in Dollars, and each
Eurocurrency Rate Loan shall be denominated in Dollars, or, subject to Section
2.9 hereof, in an Optional Currency. No Foreign Borrower may borrow funds
pursuant to a Revolving Credit Loan hereunder in any currency other than (a) the
currency of the country in which such Borrower is organized and doing business
or (b) Dollars.
2.2. Facility Fee. The Parent agrees to pay to the Agent for the
accounts of the Banks in accordance with their respective Commitment Percentages
a facility fee calculated at the rate of the Applicable Facility Fee Rate per
annum on the average daily amount during each calendar quarter or portion
thereof from the Closing Date to the Maturity Date of the Total Commitment. 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. (a) The Parent shall have the right
at any time and from time to time upon seven (7) Business Days prior written
notice to the Agent to reduce by $10,000,000 or an integral multiple of
$5,000,000 in excess thereof or terminate entirely 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 Parent delivered pursuant to this Section 2.3, the Agent will notify the
Banks of the substance thereof. Upon the effective date of any such reduction or
termination, the Borrowers shall pay to the 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 or termination of the Commitments may be reinstated.
(b) The principal amount available to the Borrowers in Optional
Currencies pursuant to Section 2.9 hereof shall be reduced pro rata in
accordance with the Banks' respective Commitment Percentages by the amount by
which the Total Commitment is reduced in accordance with Section 2.3(a).
2.4. The Revolving Credit Notes. The Revolving Credit Loans shall be
evidenced by a separate promissory note of the applicable Borrower in
substantially the form of Exhibit A hereto (each a "Revolving Credit Note"),
dated as of the Closing Date and completed with appropriate insertions. Each
Revolving Credit Note shall be payable to the order of the Agent for the
respective accounts of the Banks in a principal amount equal to the Total
Commitment or, if less, the outstanding amount of all Revolving Credit Loans
made by all the Banks, plus interest accrued thereon, as set forth below. Each
Borrower irrevocably authorizes the Agent to make or cause to be made, at or
about the time of the Drawdown Date of any Revolving Credit Loan or at the time
of receipt of any payment of principal on the Revolving Credit Note, an
appropriate notation on the Revolving Credit Note Record reflecting the making
of such Revolving Credit Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Revolving Credit Loans set forth on each
Revolving Credit Note Record shall be prima facie evidence of the principal
amount thereof owing and unpaid to the Agent for the accounts of the Banks, but
the failure to record, or any error in so recording, any such amount on any
Revolving Credit Note Record shall not limit or otherwise affect the obligations
of each of the Borrowers hereunder or under any Revolving Credit Note to make
payments of principal of or interest on any Revolving Credit Note when due. At
the request of any Bank, the applicable Borrower shall
<PAGE> 26
-20-
execute and deliver to such requesting Bank a Revolving Credit Note made payable
to such Bank in a principal amount equal to such Bank's Commitment Percentage of
the Revolving Credit Loans, or, if less, the outstanding amount of all Revolving
Credit Loans made by such Bank, plus interest accrued thereon, as set forth
below, and the Borrower shall execute and deliver to the Agent for the
respective accounts of the Banks which do not hold their own Revolving Credit
Note, an amended and restated Revolving Credit Note in a principal amount equal
to the Total Commitment less the Commitment amount of any Banks which hold their
own Revolving Credit Notes, or, if less, the outstanding amount of all Revolving
Credit Loans made by all such Banks plus interest accrued thereon, as set forth
below. Upon receipt of a duly executed and delivered replacement Revolving
Credit Note, the Agent shall return to the Borrower the Revolving Credit Note
which has been superseded.
2.5. Interest on Revolving Credit Loans. Except as otherwise provided
in Section 7.11,
(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 Eurocurrency 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 rate of the
Applicable Eurocurrency Rate determined for such Interest Period.
(c) Each of the Borrowers promises to pay interest on each
Revolving Credit Loan made to such Borrower in arrears on each Interest
Payment Date with respect thereto.
2.6. Requests for Revolving Credit Loans. Any Borrower shall give to
the Agent, and in the event such Borrower is a Foreign Borrower requesting an
Optional Currency, to the Nassau Branch with a copy to the Agent, written notice
in the form of Exhibit B hereto (or telephonic notice confirmed in a writing in
the form of Exhibit B hereto) of each Revolving Credit Loan requested by such
Borrower hereunder (a "Loan Request") (a) by 11:00 a.m. (Boston time) on the
proposed Drawdown Date of any Base Rate Loan and (b) no less than three (3)
Business Days prior to the proposed Drawdown Date of any Eurocurrency Rate Loan;
provided that any such notice requesting an Optional Currency must comply with
the requirements of this Section 2.6 and the requirements of an OC Notice
pursuant to Section 2.9.1. Each such notice shall specify (a) the principal
amount of the Revolving Credit Loan requested, stated either in Dollars, or,
subject to Section 2.9, in an Optional Currency; (b) the proposed Drawdown Date
of such Revolving Credit Loan, (c) the initial Interest Period for such
Revolving Credit Loan; (d) the Type of such Revolving Credit Loan; provided,
however, that the Foreign Borrowers shall only be permitted to select
Eurocurrency Rate Loans; (e) the Borrower's account to which payment of the
proceeds of such Revolving Credit Loan is to be made and (f) a representation
that each of the representations and warranties set forth in Section 8 hereof
shall be deemed to be true at the time of the borrowing (subject to the
limitations in Section 13.1 hereof). Promptly upon receipt of any such notice,
the Agent shall notify each of the Banks thereof. Each Loan Request shall be
irrevocable and binding on such Borrower and shall obligate such 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
$5,000,000 or an integral multiple of $1,000,000 in excess thereof (or the
Dollar equivalent if such request is for an Optional Currency).
<PAGE> 27
-21-
2.7. Conversion Options.
2.7.1. Conversion to Different Type of Revolving Credit Loan.
Any Domestic Borrower may elect from time to time to convert any
outstanding Revolving Credit Loan denominated in Dollars to a Revolving
Credit Loan of another Type denominated in Dollars, provided that (a)
with respect to any such conversion of a Revolving Credit Loan to a
Base Rate Loan, such Borrower shall give the Agent written notice of
such election prior to 11:00 a.m. (Boston time) on the date of such
conversion; (b) with respect to any such conversion of a Base Rate Loan
to a Eurocurrency Rate Loan, such Borrower shall give the Agent at
least three (3) Business Days prior written notice of such election;
(c) with respect to any such conversion of a Eurocurrency Rate Loan
into a Revolving Credit Loan of another Type, such conversion shall
only be made on the last day of the Interest Period with respect
thereto and (d) no Base Rate Loan may be converted into a Eurocurrency
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 Eurocurrency Lending Office, as the case may be. All or
any part of outstanding Revolving Credit Loans denominated in Dollars
of any Type may be converted into a Revolving Credit Loan of another
Type as provided herein, provided that any partial conversion shall be
in an aggregate principal amount of $1,000,000 or a whole multiple
thereof. Each Conversion Request relating to the conversion of a
Revolving Credit Loan to a Eurocurrency Rate Loan shall be irrevocable
by a Borrower.
2.7.2. Continuation of Type of Revolving Credit Loan. Any
Revolving Credit Loan of any Type may be continued as a Revolving
Credit Loan of the same Type upon the expiration of an Interest Period
with respect thereto by compliance by a Borrower with the notice
provisions contained in Section 2.7.1; provided that (a) as to
Eurocurrency Rate Loans denominated in Dollars, no such Eurocurrency
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 officers of the Agent active upon the Parent's account
have actual knowledge; and (b) as to Eurocurrency Rate Loans
denominated in Optional Currency, no such Eurocurrency Rate Loan may be
continued as such when any Default or Event of Default has occurred or
is continuing or the provisions of Section 2.9 hereof have not or
cannot be met at the time of such continuation, but shall be repaid by
the applicable Borrower on the last day of the Interest Period relating
thereto. In the event that a Borrower fails to provide any such notice
with respect to the continuation of any Eurocurrency Rate Loan as such,
then (a) as to Eurocurrency Rate Loans denominated in Dollars, such
Eurocurrency Rate Loans shall be automatically converted to a Base Rate
Loan on the last day of the first Interest Period relating thereto, and
(b) as to Eurocurrency Rate Advances denominated in an Optional
Currency, shall be repaid on the last day of the Interest Period
relating thereto. The Agent shall notify the Banks promptly when any
such automatic conversion contemplated by this Section 2.7 is scheduled
to occur.
2.7.3. Eurocurrency Rate Loans. Any conversion to or from
Eurocurrency 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 Eurocurrency Rate Loans having the same
Interest Period shall not be less than $5,000,000 or a whole
<PAGE> 28
-22-
multiple of $1,000,000 in excess thereof (or, in the case of
Eurocurrency Rate Loans denominated in an Optional Currency, that whole
number which is nearest to the Dollar equivalent of $5,000,000 or
$1,000,000, as the case may be, rounded to the nearest one thousandth).
In no event shall the Foreign Borrowers have more than five (5)
Eurocurrency Rate Loans outstanding at any one time.
2.8. Funds for Revolving Credit Loan.
2.8.1. Funding Procedures. Not later than 1:00 p.m. (Boston
time) on the proposed Drawdown Date of any Revolving Credit Loans
denominated in Dollars, and not later than 1:00 p.m. (in the
jurisdiction for which an Optional Currency is being requested) on the
proposed Drawdown Date of any Revolving Credit Loans denominated in an
Optional Currency, each of the Banks will make available to the Agent,
at the 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 and, in the case of a Revolving Credit Loan
denominated in an Optional Currency, at the place specified in the
notice delivered by the Borrower pursuant to Section 2.6 and in
immediately available funds in the country in which such Optional
Currency is legal tender. Upon receipt from each Bank of such amount,
and upon receipt of the documents required by Sections 12 and 13 and
the satisfaction of the other conditions set forth therein, to the
extent applicable, the Agent will make available to a Borrower the
aggregate amount of such Revolving Credit Loans made available to the
Agent by the Banks. The failure or refusal of any Bank to make
available to the Agent at the aforesaid time and place on any Drawdown
Date the amount of its Commitment Percentage of the requested Revolving
Credit Loans shall not relieve any other Bank from its several
obligation hereunder to make available to the Agent the amount of such
other Bank's Commitment Percentage of any requested Revolving Credit
Loans.
2.8.2 Advances by Agent. The Agent may, unless notified to the
contrary by any Bank prior to a Drawdown Date, assume that such Bank
has made available to the Agent on such Drawdown Date the amount of
such Bank's Commitment Percentage of the Revolving Credit Loans to be
made on such Drawdown Date, and the Agent may (but it shall not be
required to), in reliance upon such assumption, make available to a
Borrower a corresponding amount. If any Bank makes available to the
Agent such amount on a date after such Drawdown Date, such Bank shall
pay to the Agent on demand an amount equal to the product of (a) the
average computed for the period referred to in clause (c) below, of the
weighted average interest rate paid by the Agent for federal funds
acquired by the Agent during each day included in such period, times
(b) the amount of such Bank's Commitment Percentage of such Revolving
Credit Loans, times (c) a fraction, the numerator of which is the
number of days that elapse from and including such Drawdown Date to the
date on which the amount of such Bank's Commitment Percentage of such
Revolving Credit Loans shall become immediately available to the Agent,
and the denominator of which is 365. A statement of the Agent submitted
to such Bank with respect to any amounts owing under this paragraph
shall be prima facie evidence of the amount due and owing to the Agent
by such Bank. If the amount of such Bank's Commitment Percentage of
such Revolving Credit Loans is not made available to the Agent by such
Bank within three (3) Business Days following such Drawdown Date, the
Agent shall be entitled to recover such amount from such Borrower
within three (3) Business Days of noticing the Borrower that it is
required to repay such amounts, with interest thereon at the rate per
annum applicable to the Revolving Credit Loans made on such
<PAGE> 29
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Drawdown Date provided that any such payment by the Borrower
hereunder shall be without prejudice to any rights that the Borrower
may have against the Bank which did not fund its Commitment Percentage
of the requested Revolving Credit Loan. In the event any Bank fails to
make such Bank's Commitment Percentage of such Revolving Credit Loan
available to the Agent within one (1) Business Day following the
Drawdown Date, the Agent will endeavor to provide to the Borrower
notice of such failure, provided, a failure by the Agent to so provide
such notice shall not affect the Agent's rights under this Section
2.8.2.
2.9. Optional Currencies.
2.9.1. Request for Optional Currency. Subject to the limitations
set forth in Section 2.1.1., any Borrower may, upon at least three (3)
Business Days' notice to the Agent (an "OC Notice"), request that one
or more Revolving Credit Loans be made as Eurocurrency Rate Loans in an
Optional Currency, provided that (a) any Revolving Credit Loan proposed
to be made under this Section 2.9.1 shall be in an amount not less than
$5,000,000, or a greater amount which is an integral multiple of
$1,000,000, or the equivalent in an Optional Currency and (b) the
aggregate principal amount outstanding at any one time of Revolving
Credit Loans denominated in Optional Currencies shall not exceed the
equivalent of $100,000,000, subject to reduction in accordance with
Section 2.2(b) hereof. Each OC Notice requesting a Revolving Credit
Loan in an Optional Currency shall be by telephone, telex, telecopy or
cable (in each case confirmed in writing by the Borrower), specifying
(a) the Revolving Credit Loan to be made, (b) the requested date of the
proposed borrowing, (c) the requested currency in which the Revolving
Credit Loan is to be made, (d) the initial Interest Period for the
Revolving Credit Loan to be borrowed, and (e) the Borrower's account
with the Agent, or, in the case of an Optional Currency which is the
legal tender of a country in which the Agent has no office, with
another depository specified by the Borrower in such country, to which
payment of the proceeds of such Revolving Credit Loan is to be made. If
any Bank has provided notice to the Parent and the Agent prior to the
Closing Date of its election not to fund in any Optional Currencies
until further notice, or if any Bank, on or prior to the second
Business Day preceding the first day of any Interest Period for which
an OC Notice has been delivered requesting a Revolving Credit Loan in
an Optional Currency or on any funding date, any Bank determines (which
determination shall be conclusive) that the Optional Currency is not
freely transferable and convertible into Dollars or that it will be
impracticable for such Bank to fund the Revolving Credit Loan in such
Optional Currency, then such Bank shall so notify Agent, which
notification shall be given immediately by the Agent to the Borrower,
and (a) as to any Foreign Borrower, such Bank's portion of the
requested Revolving Credit Loan shall be denominated in Dollars as a
Eurocurrency Rate Loan; and (b) as to any Domestic Borrower, such
Bank's portion of the requested Revolving Credit Loan shall,
notwithstanding any contrary election by such Domestic Borrower or any
other provisions hereof, be denominated in Dollars as a Base Rate Loan
unless the Domestic Borrower, on the second Business Day prior to the
commencement of the Interest Period and pursuant to the terms of
Section 2.6 hereof elects to have such Revolving Credit Loan
denominated in Dollars as a Eurocurrency Rate Loan. In the event that
the Borrower repays such portion of a Revolving Credit Loan denominated
in Dollars as a Base Rate Loan or a Eurocurrency Rate Loan, as the case
may be, in accordance with Section 3.3 hereof and such repayment
results in Revolving Credit Loans outstanding that are not pro rata in
accordance with the Commitment Percentages, then all subsequent
principal repayments denominated in the Optional Currency which the
applicable Bank did
<PAGE> 30
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not advance shall be made by the Borrower to the Agent for the
respective accounts of such Banks other than such Bank on a pro rata
basis until such time as the Revolving Credit Loans are outstanding on
a pro rata basis. Subject to the foregoing and to the satisfaction of
the terms and conditions of Sections 12 and 13, each Revolving Credit
Loan requested to be made in an Optional Currency will be made on the
date specified therefor in the OC Notice, in the currency requested in
the OC Notice and, upon being so made, will have the Interest Period
requested in the OC Notice.
2.9.2. Exchange Rate. For purposes of this Credit Agreement the
amount in one currency which shall be equivalent on any particular date
to a specified amount in another currency shall be that amount (as
conclusively ascertained by the Agent by its normal banking practices,
absent manifest error) in the first currency which is or could be
purchased by the Agent (in accordance with normal banking practices)
with such specified amount in the second currency in any recognized
Eurocurrency Interbank Market selected by the Agent in good faith for
delivery on such date at the spot rate of exchange prevailing at 10:00
A.M. (Boston time) (or as soon thereafter as practicable) on such date
(such amount described in this Section 2.9.2, the "Rate of Exchange").
2.9.3. Multiple Denominations. In the event that any portion of
the funds available under the terms of this Credit Agreement is
denominated in one or more Optional Currencies, the Dollar equivalent
of such portion of the funds shall be calculated pursuant to Section
2.9.2 above. The amount so determined shall then be added to the amount
already outstanding in Dollars for the purpose of determining the
remaining availability of funds under Section 2.1 and Section 2.9.1
hereof and any required repayments under the following Section 2.9.4.
2.9.4. Repayment. If at any time prior to the Maturity Date, the
Dollar equivalent of the aggregate principal amount outstanding of (a)
all Loans, Unpaid Reimbursement Obligations and the Maximum Drawing
Amount hereunder shall exceed the Total Commitment or (b) all Revolving
Credit Loans designated in an Optional Currency shall exceed
$100,000,000, in either case as a result of fluctuations in respective
conversion rates by more than five percent (5%) of the Total Commitment
or $100,000,000 as the case may be, for three (3) or more consecutive
Business Days, the Borrowers shall pay or cause to be paid immediately,
upon demand made by the Agent, such amounts as are sufficient to
eliminate such excess and to reduce the aggregate principal amount
outstanding to the Dollar equivalent of the Total Commitment or
$100,000,000, as the case may be. In the event there are any Revolving
Credit Loans outstanding which are denominated in an Optional Currency,
the Agent shall provide the Banks and the Borrowers with calculations
on the last day of each calendar month that such Loans are outstanding
as to the Dollar Equivalents of such Loans.
2.9.5. Funding. Each Bank may make any Eurocurrency Rate Loan
denominated in an Optional Currency by causing any of its foreign
branches or foreign affiliates to make such Eurocurrency Rate Loan
(whether or not such branch or affiliate is named as a lending office
on the signature pages hereof); provided that in such event the
obligation of any Borrower to repay such Eurocurrency Rate Loan shall
nevertheless be to such Bank and shall, for all purposes of this Credit
Agreement (including without limitation for purposes of the definition
of the term "Majority Banks") be deemed made by such Bank, to the
extent of such Eurocurrency Rate Loan, for the account of such branch
or affiliate.
<PAGE> 31
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2.10. Termination of Total Commitment; Change in Control. The Parent
shall give written notice to the Agent of the occurrence of any Change in
Control promptly after the senior management of the Parent obtains knowledge
thereof, and shall offer to terminate the Commitments of all of the Banks on a
date specified in such notice, which shall be not less than thirty (30) nor more
than forty-five (45) days after the date of such notice, or such earlier time as
provided for such notice in the change of control provision of any other Debt
instrument or agreement for the securitization or other sale of receivables to
which the Parent or any Subsidiary is a party, but in any event shall not be
later than the Effective Date of the Change in Control. The Agent shall provide
to each Bank a copy of such written notice promptly after its receipt thereof.
Such notice by the Parent also shall specify the date by which each Bank that
wishes to accept such offer must deliver notice to the Parent (with a copy to
the Agent) of such acceptance, which date shall be no earlier than twenty (20)
and no later than ten (10) days prior to the date of the proposed termination,
or such earlier time as provided for such notice in the change of control
provision of any other Debt instrument or agreement for the securitization or
other sale of receivables to which the Parent or any Subsidiary is a party. If
any Bank shall accept such offer, then on the date so specified, or such earlier
time as provided for repayment in the change of control provision of any other
Debt instrument or agreement for the securitization or other sale of receivables
to which the Parent or any Subsidiary is a party, the Commitment of such Bank
shall terminate on the date so specified in the Parent's notice (which date
shall become the Maturity Date for those Banks for all purposes hereunder), any
Loans owing to such Banks (together with accrued interest thereon and all
accrued fees, including, without limitation and fees incurred pursuant to
Section 7.10) then outstanding shall be due and payable on such date, all
Reimbursement Obligations of such Bank and such Bank's Commitment Percentage of
the Maximum Drawing Amount of all issued and outstanding Letters of Credit shall
be cash collaterialized in accordance with Section 5 hereof and the Total
Commitment shall automatically and permanently be reduced by all such amounts.
2.11. Swing Line Loans; Settlements.
(a) Solely for ease of administration of the Revolving Credit
Loans, FNBB shall, subject to the terms and conditions contained in
this Credit Agreement (including but not limited to Section 13 hereof)
fund Base Rate Revolving Credit Loans made in accordance with the
provisions of this Credit Agreement ("Swing Line Loans"); provided,
however, notwithstanding anything to the contrary contained in Section
2.6 hereof, the Borrower shall have until 2:00 p.m. (Boston time) on
the proposed Drawdown Date of the Swing Line Loan to request such Swing
Line Loan. The Swing Line Loans shall be evidenced by a promissory note
of the Borrower requesting such Revolving Credit Loan in substantially
the form of Exhibit C hereto (the "Swing Line Note"). Each Bank shall
remain severally and unconditionally liable to fund its pro rata share
(based upon each Bank's Commitment Percentage) of such Swing Line Loans
on each Swing Line Settlement Date and, in the event FNBB chooses not
to fund all Base Rate Revolving Credit Loans requested on any date, to
fund its Commitment Percentage of the Base Rate Revolving Credit Loans,
as the case may be, requested, subject to satisfaction of the
provisions hereof relating to the making of Base Rate Revolving Credit
Loans. Prior to each Swing Line Settlement, all payments or repayments
of the principal and interest on Swing Line Loans shall be credited to
the account of FNBB. The aggregate outstanding amount of Swing Line
Loans advanced by FNBB hereunder shall not exceed $10,000,000, and
there shall not be more than six (6) Swing Line Loans outstanding at
any one time.
<PAGE> 32
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(b) The Banks shall effect Swing Line Settlements on (i) the
Business Day immediately following any day which FNBB gives written
notice to the Agent to effect a Swing Line Settlement, (ii) the
Business Day immediately following the Agent's becoming aware of the
existence of any Default or Event of Default, (iii) the Maturity Date
and (iv) the Business Day immediately following any day on which the
outstanding amount of Swing Line Loans advanced by FNBB exceeds
$10,000,000 (each such date, a "Swing Line Settlement Date"). One (1)
Business Day prior to each such Swing Line Settlement Date, the Agent
shall give telephonic notice to the Banks of (A) the respective
outstanding amount of Revolving Credit Loans made by each Bank as at
the close of business on the prior day, (B) the amount that any Bank,
as applicable (the "Swing Line Settling Bank"), shall pay to effect a
Swing Line Settlement (the "Swing Line Settlement Amount") and (C) the
portion (if any) of the aggregate Swing Line Settlement Amount to be
paid to each Bank. A statement of the Agent submitted to the Banks with
respect to any amounts owing hereunder shall be prima facie evidence of
the amount due and owing. Each Swing Line Settling Bank shall, not
later than 1:00 p.m. (Boston time) on each Swing Line Settlement Date,
effect a wire transfer of immediately available funds to the Agent at
the Agent's Head Office in the amount of such Bank's Swing Line
Settlement Amount. The Agent shall, as promptly as practicable during
normal business hours on each Swing Line Settlement Date, effect a wire
transfer of immediately available funds to FNBB of the Swing Line
Settlement Amount to be paid to FNBB. All funds advanced by any Bank as
a Swing Line Settling Bank pursuant to this Section 2.11(b) shall for
all purposes be treated as a Base Rate Revolving Credit Loan made by
such Swing Line Settling Bank to a Borrower, and all funds received by
any Bank pursuant to this Section 2.11(b) shall for all purposes be
treated as repayment of amounts owed by the Borrower with respect to
Base Rate Loans made by such Bank.
(c) The Agent may (unless notified to the contrary by any Swing
Line Settling Bank by 12:00 noon (Boston time) one (1) Business Day
prior to the Settlement Date) assume that each Swing Line Settling Bank
has made available (or will make available by the time specified in
Section 2.11(b)) to the Agent its Swing Line Settlement Amount, and the
Agent may (but shall not be required to), in reliance upon such
assumption, make available to FNBB the aggregate Swing Line Settlement
Amount. If the Swing Line Settlement Amount of such Swing Line Settling
Bank is made available to the Agent by such Swing Line Settling Bank on
a date after such Swing Line Settlement Date, such Swing Line Settling
Bank shall pay the Agent on demand an amount equal to the product of
(i) the average, computed for the period referred to in clause (iii)
below, of the weighted average annual interest rate paid by the Agent
for federal funds acquired by the Agent during each day included in
such period times (ii) the Swing Line Settlement Amount times (iii) a
fraction, the numerator of which is the number of days that elapse from
and including such Swing Line Settlement Date to but not including the
date on which the Swing Line Settlement Amount shall become immediately
available to the Agent, and the denominator of which is 365 or 366, as
the case may be. Upon payment of such amount the Swing Line Settling
Bank shall be deemed to have delivered its Swing Line Settlement Amount
on the Swing Line Settlement Date and shall become entitled to interest
payable by the Borrowers with respect to such Bank's Swing Line
Settlement Amount as if such share were delivered on the Swing Line
Settlement Date. If the Swing Line Settlement Amount is not in fact
made available to the Agent by the Swing Line Settling Bank within
three (3) Business Days of such Swing Line Settlement Date, the Agent
shall be entitled to recover such amount from the Borrower, with
interest thereon at the Base Rate, provided that any such payment by
<PAGE> 33
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the Borrower hereunder shall be without prejudice to any rights
that the Borrower may have against the Swing Line Settling Bank which
did not fund its required portion of the Swing Line Loan. In the event
any Swing Line Settling Bank fails to make such Swing Line Settlement
available to the Agent within one (1) Business Day following the Swing
Line Settlement Date, the Agent will endeavor to provide to the
Borrower notice of such failure, provided, a failure by the Agent to so
provide such notice shall not affect the Agent's rights under this
Section 2.11(c).
(d) After any Swing Line Settlement Date, any payment by the
Borrowers of Swing Line Loans hereunder shall be allocated among the
Banks, in amounts determined so as to provide that after such
application and the related Swing Line Settlement, the outstanding
amount of Revolving Credit Loans of each Bank equals, as nearly as
practicable, such Bank's Commitment Percentage of the aggregate amount
of Revolving Credit Loans.
(e) FNBB will notify the Agent promptly following each advance
of a Swing Line Loan or any repayment with respect thereto.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. Maturity. Each of the Borrowers promise to pay on the Maturity
Date, and there shall become absolutely due and payable on the Maturity Date,
all of the Revolving Credit Loans made to such Borrower and outstanding on such
date, together with any and all accrued and unpaid interest thereon.
3.2. Mandatory Repayments of Revolving Credit Loans. If at any time the
sum of the outstanding amount of the Revolving Credit Loans, the Competitive Bid
Loans, the Maximum Drawing Amount and all Unpaid Reimbursement Obligations
exceeds the Total Commitment, then the Borrowers shall immediately pay the
amount of such excess to the Agent for the respective accounts of the Banks for
application: first, to any Unpaid Reimbursement Obligations; second, to the
Revolving Credit Loans; and third, to provide to the Agent cash collateral for
Reimbursement Obligations as contemplated by Section 5.2(b) and (c). Each
payment of any Unpaid Reimbursement Obligations or prepayment of Revolving
Credit Loans shall be allocated among the Banks, in proportion, as nearly as
practicable, to each Reimbursement Obligation or (as the case may be) the
respective unpaid principal amount of each Bank's Revolving Credit Note, with
adjustments to the extent practicable to equalize any prior payments or
repayments not exactly in proportion.
3.3. Optional Repayments of revolving Credit Loans. Any 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 any full or partial prepayment of the outstanding amount
of any Eurocurrency Rate Loans pursuant to this Section 3.3 may be made only on
the last day of the Interest Period relating thereto or, if made prior to such
date, shall be subject to the provisions of Section 7.10. The Borrower shall
give the Agent, no later than 11:00 a.m., Boston time, on the date of
prepayment written notice of any proposed prepayment pursuant to this Section
3.3 of Base Rate Loans, and no less than three (3) Business Days notice of any
proposed prepayment pursuant to this Section 3.3 of Eurocurrency Rate Loans, in
each case specifying the proposed date of prepayment of Revolving Credit Loans
and the principal amount to be prepaid. Each such partial prepayment of the
Revolving Credit Loans shall be in an integral multiple of $1,000,000, shall be
accompanied by the payment of accrued interest on the principal prepaid to the
date of prepayment and shall be applied, in the absence of instruction by a
Borrower, first to the principal of Base
<PAGE> 34
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Rate Loans and then to the principal of Eurocurrency Rate Loans or both, at
the Agent's option. Each partial prepayment shall be allocated among the Banks,
in proportion, as nearly as practicable, to the respective unpaid principal
amount of each Bank's Revolving Credit Commitment, with adjustments to the
extent practicable to equalize any prior repayments not exactly in proportion.
4. COMPETITIVE BID LOANS.
4.1. The Competitive Bid Option. In addition to the Revolving Credit
Loans made pursuant to Section 4 hereof, any Borrower may request Competitive
Bid Loans pursuant to the terms of this Section 4. The Banks may, but shall
have no obligation to, make such offers and the Parent may, but shall have no
obligation to, accept such offers in the manner set forth in this Section 4.
Notwithstanding any other provision herein to the contrary, at no time shall
the aggregate principal amount of Competitive Bid Loans outstanding at any time
exceed the lesser of (a) the Total Commitment minus the sum of (i) the
aggregate outstanding principal amount of Revolving Credit Loans (including the
Swing Loans), plus (ii) the Maximum Drawing Amount of Letters of Credit and
Unpaid Reimbursement Obligations outstanding at such time, or (b) $100,000,000.
4.2. Competitive Bid Loan Accounts: Competitive Bid Notes.
(a) The obligation of any Borrower to repay the outstanding
principal amount of any and all Competitive Bid Loans, plus interest at
the applicable Competitive Bid Rate accrued thereon, shall be evidenced
by this Credit Agreement and by individual loan accounts (the
"Competitive Bid Loan Accounts" and individually, a "Competitive Bid
Loan Account") maintained by the Agent on its books for each of the
Banks, it being the intention of the parties hereto that, except as
provided for in paragraph (b) of this Section 4.2, the Borrowers'
obligations with respect to Competitive Bid Loans are to be evidenced
only as stated herein and not by separate promissory notes.
(b) Any Bank may at any time, and from time to time, request
that any Competitive Bid Loans outstanding to such Bank be evidenced by
a promissory note of such Borrower in substantially the form of Exhibit
D hereto (each, a "Competitive Bid Note"), dated as of the Closing Date
and completed with appropriate insertions. One Competitive Bid Note
shall be payable to the order of each Bank in an amount equal to the
principal amount of the Competitive Bid Loan made by such Bank to such
Borrower, and representing the obligation of the Borrower to pay such
Bank such principal amount or, if less, the outstanding principal
amount of any and all Competitive Bid Loans made by such Bank, plus
interest at the applicable Competitive Bid Rate or the sum of the
Competitive Bid Margin plus the Applicable Eurocurrency Rate accrued
thereon, as set forth herein. Upon execution and delivery by the
Borrower of a Competitive Bid Note, the Borrower's obligation to repay
any and all Competitive Bid Loans made to it by such Bank and all
interest thereon shall thereafter be evidenced by such Competitive Bid
Note.
(c) Each of the Borrowers irrevocably authorizes (i) each Bank
to make or cause to be made, in connection with a Drawdown Date of any
Competitive Bid Loan or at the time of receipt of any payment of
principal on such Bank's Competitive Bid Note in the case of a
Competitive Bid Note, and (ii) the Agent to make or cause to be made,
in connection with a Drawdown Date of any Competitive Bid Loan or at
the time of receipt of any payment of principal on such Bank's
<PAGE> 35
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Competitive Bid Loan Account in the case of a Competitive Bid Loan
Account, an appropriate notation on such Bank's records or on the
schedule attached to such Bank's Competitive Bid Note or a continuation
of such schedule attached thereto, or the Agent's records, as
applicable, reflecting the making of the Competitive Bid Loan or the
receipt of such payment (as the case may be) and may, prior to any
transfer of a Competitive Bid Note, endorse on the reverse side thereof
the outstanding principal amount of Competitive Bid Loans evidenced
thereby. The outstanding amount of the Competitive Bid Loans set forth
on such Bank's record or the Agent's records, as applicable, 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 shall not limit or otherwise affect the obligations of
the Borrowers hereunder to make payments of principal of or interest on
any Competitive Bid Loan when due.
4.3. Competitive Bid Quote Request; Invitation for Competitive Bid
Quotes.
(a) When a Borrower wishes to request offers to make
Competitive Bid Loans under this Section 4, it shall transmit to the
Agent by telex or facsimile a Competitive Bid Quote Request
substantially in the form of Exhibit E hereto (a "Competitive Bid
Quote Request") so as to be received no later than 11:00 a.m. (Boston
time) (i) five (5) Business Days prior to the requested Drawdown Date
in the case of a Eurocurrency Competitive Bid Loan (a "Eurocurrency
Competitive Bid Loan") or (ii) one (1) Business Day prior to the
requested Drawdown Date in the case of an Absolute Competitive Bid
Loan (an "Absolute Competitive Bid Loan"), specifying:
(A) the requested Drawdown Date (which must be a
Business Day);
(B) the aggregate amount of such Competitive Bid
Loans, which shall be $10,000,000 or larger multiple of
$1,000,000;
(C) the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of
Interest Period; and
(D) whether the Competitive Bid Quotes requested are
for Eurocurrency Competitive Bid Loans or Absolute Competitive
Bid Loans.
A Borrower may request offers to make Competitive Bid Loans for more
than one Interest Period in a single Competitive Bid Quote Request. No
new Competitive Bid Quote Request shall be given until a Borrower has
notified the Agent of its acceptance or non-acceptance of the
Competitive Bid Quotes relating to any outstanding Competitive Bid
Quote Request.
(b) Promptly upon receipt of a Competitive Bid Quote Request
and payment by the Borrowers of a $2,000 auction fee to the Agent for
its own account, the Agent shall send to the Banks by telecopy or
facsimile transmission an Invitation for Competitive Bid Quotes
substantially in the form of Exhibit F hereto, which shall constitute
an invitation by a Borrower to each Bank to submit Competitive Bid
Quotes in accordance with this Section 4.
4.4. Alternative Manner of Procedure. If, after receipt by the Agent
and each of the Banks of a Competitive Bid Quote Request from a Borrower in
accordance with Section 4.3, the Agent or any Bank shall be unable to complete
any procedure of the auction process
<PAGE> 36
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described in Sections 4.5 through 4.6 (inclusive) due to the inability of such
Person to transmit or receive communications through the means specified
therein, such Person may rely on telephonic notice for the transmission or
receipt of such communications. In any case where such Person shall rely on
telephone transmission or receipt, any communication made by telephone shall, as
soon as possible thereafter, be followed by written confirmation thereof.
4.5. Submission and Contents of Competitive Bid Quotes.
(a) Each Bank may, but shall be under no obligation to, submit
a Competitive Bid Quote containing an offer or offers to make
Competitive Bid Loans in response to any Competitive Bid Quote Request.
Each Competitive Bid Quote must comply with the requirements of this
Section 4.5 and must be submitted to the Agent by telex or facsimile
transmission at its offices as specified in or pursuant to Section 21
not later than (i) 2:00 p.m. (Boston time) on the fourth Eurocurrency
Business Day prior to the proposed Drawdown Date, in the case of a
Eurocurrency Competitive Bid Loan or (y) 10:00 a.m. (Boston time) on
the proposed Drawdown Date, in the case of an Absolute Competitive Bid
Loan, provided that Competitive Bid Quotes may be submitted by the
Agent in its capacity as a Bank only if it submits its Competitive Bid
Quote to a Borrower not later than (ii) one hour prior to the deadline
for the other Banks, in the case of a Eurocurrency Competitive Bid Loan
or (y) 15 minutes prior to the deadline for the other Banks, in the
case of an Absolute Competitive Bid Loan. Subject to the provisions of
Sections 12 and 13 hereof, any Competitive Bid Quote so made shall be
irrevocable except with the written consent of the Agent given on the
instructions of a Borrower.
(b) Each Competitive Bid Quote shall be in substantially the
form of Exhibit G hereto and shall in any case specify:
(i) the proposed Drawdown Date;
(ii) the principal amount of the Competitive Bid Loan
for which each proposal is being made, which principal amount
(i) may be greater than or less than the Commitment of the
quoting Bank, (ii) must be $5,000,000 or a larger multiple of
$1,000,000, (iii) may not exceed the aggregate principal
amount of Competitive Bid Loans for which offers were
requested and (iv) may be subject to an aggregate limitation
as to the principal amount of Competitive Bid Loans for which
offers being made by such quoting Bank may be accepted;
(iii) the Interest Periods for which Competitive Bid
Quotes are being submitted;
(iv) in the case of a Eurocurrency Competitive Bid
Loan, the margin above or below the applicable Eurocurrency
Rate (the "Competitive Bid Margin") offered for each such
Competitive Bid Loan, expressed as a percentage (specified to
the nearest 1/10,000th of 1%) to be added to or subtracted
from such Eurocurrency Rate;
(v) in the case of an Absolute Competitive Bid Loan,
the rate of interest per annum (specified to the nearest
1/10,000th of 1%) (the "Competitive Bid Rate") offered for
each such Absolute Competitive Bid Loan; and
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(vi) the identity of the quoting Bank.
A Competitive Bid Quote may include up to five (5) separate offers by
the quoting Bank with respect to each Interest Period specified in the
related Invitation for Competitive Bid Quotes.
(c) Any Competitive Bid Quote shall be disregarded if it:
(i) is not substantially in the form of Exhibit G
hereto;
(ii) contains qualifying, conditional or similar
language;
(iii) proposes terms other than or in addition to
those set forth in the applicable Invitation for Competitive
Bid Quotes; or
(iv) arrives after the time set forth in Section
4.5(a) hereof.
4.6. Notice to Parent. The Agent shall promptly notify the Parent of
the terms (a) of any Competitive Bid Quote submitted by a Bank that is in
accordance with Section 4.5 and (b) of any Competitive Bid Quote that amends,
modifies or is otherwise inconsistent with a previous Competitive Bid Quote
submitted by such Bank with respect to the same Competitive Bid Quote Request.
Any such subsequent Competitive Bid Quote shall be disregarded by the Agent
unless such subsequent Competitive Bid Quote is submitted solely to correct a
manifest error in such former Competitive Bid Quote. The Agent's notice to the
Parent shall specify (i) the aggregate principal amount of Competitive Bid
Loans for which offers have been received for each Interest Period specified
in the related Competitive Bid Quote Request, (ii) the respective principal
amounts and Competitive Bid Margins or Competitive Bid Rates, as the case may
be, so offered, and the identity of the respective Banks submitting such
offers, and (iii) if applicable, limitations on the aggregate principal amount
of Competitive Bid Loans for which offers in any single Competitive Bid Quote
may be accepted.
4.7. Acceptance and Notice by Parent and Agent. Not later than 11:00
a.m. (Boston time) on (a) the third Business Day prior to the proposed Drawdown
Date, in the case of a Eurocurrency Competitive Bid Loan or (b) the proposed
Drawdown Date, in the case of an Absolute Competitive Bid Loan, the Borrower
shall notify the Agent of its acceptance or non-acceptance of each Competitive
Bid Quote in substantially the form of Exhibit H hereto. The Borrower may accept
any Competitive Bid Quote in whole or in part; provided that:
(i) the aggregate principal amount of each
Competitive Bid Loan may not exceed the applicable amount set
forth in the related Competitive Bid Quote Request;
(ii) acceptance of offers may only be made on the
basis of ascending Competitive Bid Margins or Competitive Bid
Rates, as the case may be, and
(iii) the Borrower may not accept any offer that is
described in subsection 4.5(c) or that otherwise fails to
comply with the requirements of this Credit Agreement.
The Agent shall promptly notify each Bank which submitted a Competitive Bid
Quote of the Parent's acceptance or non-acceptance thereof. At the request of
any Bank which submitted
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a Competitive Bid Quote and with the consent of the Parent, the Agent will
promptly notify all Banks which submitted Competitive Bid Quotes of (a) the
aggregate principal amount of, and (b) the range of Competitive Bid Rates or
Competitive Bid Margins of, the accepted Competitive Bid Loans for each
requested Interest Period.
4.8. Allocation by Agent. If offers are made by two (2) or more Banks
with the same Competitive Bid Margin or Competitive Bid Rate, as the case may
be, for a greater aggregate principal amount than the amount in respect of which
offers are accepted for the related Interest Period, the principal amount of
Competitive Bid Loans in respect of which such offers are accepted shall be
allocated by the Agent among such Banks as nearly as possible (in such
multiples, not less than $1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. Determination by
the Agent of the amounts of Competitive Bid Loans shall be conclusive in the
absence of manifest error.
4.9. Funding of Competitive Bid Loans. If, on or prior to the Drawdown
Date of any Competitive Bid Loan, the Total Commitment has not terminated in
full and if, on such Drawdown Date, the applicable conditions of Sections 12
and 13 hereof are satisfied, the Bank or Banks whose offers the Parent has
accepted will fund each Competitive Bid Loan so accepted. Such Bank or Banks
will make such Competitive Bid Loans by crediting the Agent for further credit
to a Borrower's specified account with the Agent, in immediately available
funds not later than 1:00 p.m. (Boston time) on such Drawdown Date.
4.10. Funding Losses. If, after acceptance of any Competitive Bid Quote
pursuant to Section 4, a Borrower (a) fails to borrow any Competitive Bid Loan
so accepted on the date specified therefor, or (b) repays the outstanding
amount of the Competitive Bid Loan prior to the last day of the Interest Period
relating thereto, such Borrower shall indemnify the Bank making such
Competitive Bid Quote or funding such Competitive Bid Loan against any loss or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund or maintain such unborrowed Loans,
including, without limitation compensation as provided in Section 7.10.
4.11. Repayment of Competitive Bid Loans; Interest. The principal of
each Competitive Bid Loan shall become absolutely due and payable by the
Borrower requesting such Competitive Bid Loan on the last day of the Interest
Period relating thereto, and such Borrower hereby absolutely and unconditionally
promises to pay to the Agent for the account of the relevant Banks at or before
1:00 p.m. (Boston time) on the last day of the Interest Periods relating thereto
the principal amount of all such Competitive Bid Loans, plus interest thereon at
the applicable Competitive Bid Rates. The Competitive Bid Loans shall bear
interest at the rate per annum specified in the applicable Competitive Bid
Quotes. Interest on the Competitive Bid Loans shall be payable (a) on the last
day of the applicable Interest Periods, and if any such Interest Period is
longer than three months, also on the last day of the third month following the
commencement of such Interest Period, and (b) on the Maturity Date for all
Loans. Subject to the terms of this Credit Agreement, the Borrowers may make
Competitive Bid Quote Requests with respect to new borrowings of any amounts so
repaid prior to the Maturity Date.
4.12. Optional Repayment of Competitive Bid Loans. Any Borrower shall
have the right, at its election, to repay the outstanding amount of any of the
Competitive Bid Loans, as a whole or in part, at any time without penalty or
premium, provided that any full or partial prepayment of the outstanding amount
of any Competitive Bid Loan pursuant to this Section 4.12 may be made only on
the last day of the Interest Period relating thereto, or, if made prior to such
date, shall be made subject to the provisions of Section 4.10 hereof. The
Borrower
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shall give the Agent, no less than three (3) Business Days notice of any
proposed prepayment pursuant to this Section 4.12, specifying the proposed
date of prepayment of the Competitive Bid Loan and the principal amount to be
prepaid. Each such partial prepayment of any Competitive Bid Loan shall be in
an integral multiple of $1,000,000, and shall be accompanied by the payment of
accrued interest on the principal prepaid to the date of prepayment.
5. LETTERS OF CREDIT.
5.1. Letter of Credit Commitments.
5.1.1. Commitment to Issue Letters of Credit. Subject to the
terms and conditions hereof (including, without limitation, the
provisions of Section 13 hereof) and the execution and delivery by a
Borrower of a letter of credit application on the Agent's customary
form (a "Letter of Credit Application"), the Agent on behalf of the
Banks and in reliance upon the agreement of the Banks set forth in
Section 5.1.4 and upon the representations and warranties of the
Borrower contained herein, agrees, in its individual capacity,
to issue, extend and renew for the account of a Borrower one or more
standby or documentary letters of credit (individually, a "Letter of
Credit"), in such form as may be requested from time to time by a
Borrower and agreed to by the Agent; provided, however, that, after
giving effect to such request, (a) the sum of the aggregate Maximum
Drawing Amount and all Unpaid Reimbursement Obligations shall not
exceed $50,000,000 at any one time and (b) the sum of (i) the Maximum
Drawing Amount on all Letters of Credit, (ii) all Unpaid Reimbursement
Obligations, and (iii) the amount of all Revolving Credit Loans and
Competitive Bid Loans outstanding shall not exceed the Total
Commitment.
5.1.2. Letter of Credit Applications. Each Letter of Credit
Application shall be completed to the satisfaction of the Agent. In the
event that any provision of any Letter of Credit Application shall be
inconsistent with any provision of this Credit Agreement, then the
provisions of this Credit Agreement shall, to the extent of any such
inconsistency, govern.
5.1.3. Terms of Letters of Credit. Each Letter of Credit
issued, extended or renewed hereunder shall, among other things, (a)
provide for the payment of sight drafts for honor thereunder when
presented in accordance with the terms thereof and when accompanied by
the documents described therein, and (b) have an expiry date no later
than the earlier of the first anniversary of the issuance date or the
date which is fourteen (14) days (or, if the Letter of Credit is
confirmed by a confirmer or otherwise provides for one or more
nominated persons, forty-five (45) days) prior to the Maturity Date.
Each Letter of Credit so issued, extended or renewed shall be subject
to the Uniform Customs.
5.1.4. Reimbursement Obligations of Banks. Each Bank severally
agrees that it shall be absolutely liable, without regard to the
occurrence of any Default or Event of Default or any other condition
precedent whatsoever, to the extent of such Bank's Commitment
Percentage, to reimburse the Agent on demand for the amount of each
draft paid by the Agent under each Letter of Credit to the extent that
such amount is not reimbursed by a Borrower pursuant to Section 5.2
(such agreement for a Bank being called herein the "Letter of Credit
Participation" of such Bank).
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5.1.5. Participation of Banks. Each such payment made by a
Bank shall be treated as the purchase by such Bank of a participating
interest in the Borrowers' Reimbursement Obligation under Section 5.2
in an amount equal to such payment. Each Bank shall share in
accordance with its participating interest in any interest which
accrues pursuant to Section 5.2.
5.2. Reimbursement Obligation of the Borrowers. In order to induce the
Agent to issue, extend and renew each Letter of Credit and the Banks to
participate therein, the Borrower for whose account the Letter of Credit was
issued hereby agrees to reimburse or pay to the Agent, for the account of the
Agent or (as the case may be) the Banks, with respect to each Letter of Credit
issued, extended or renewed by the Agent for such Borrower's account hereunder,
(a) except as otherwise expressly provided in Section 5.2(b)
and (c), by not later than the third Business Day following each date
that any draft presented under such Letter of Credit is honored by
the Agent, or the Agent otherwise makes a payment with respect
thereto, (i) the amount paid by the Agent under or with respect to
such Letter of Credit, plus any and all interest accuring on such
amounts from the date of payment by the Agent (with such interest
accruing at the Base Rate), and (ii) the amount of any taxes, fees,
charges or other costs and expenses whatsoever incurred by the
Agent or any Bank in connection with any payment made by the Agent or
any Bank under, or with respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total
Commitment to an amount less than the Maximum Drawing Amount, an amount
equal to such difference, which amount shall be held by the Agent for
the benefit of the Banks and the Agent as cash collateral for all
Reimbursement Obligations, and
(c) upon the termination of the Total Commitment, or the
acceleration of the Reimbursement Obligations with respect to all
Letters of Credit in accordance with Section 14, an amount equal to
the then Maximum Drawing Amount on all Letters of Credit, which
amount shall be held by the Agent for the benefit of the Banks and the
Agent as cash collateral for all Reimbursement Obligations.
Each such payment shall be made to the Agent at the Agent's Head Office in
immediately available funds. Interest on any and all amounts remaining unpaid by
a Borrower under this Section 5.2 at any time from the date such amounts
become due and payable (whether as stated in this Section 5.2, by acceleration
or otherwise) until payment in full (whether before or after judgment) shall
be payable to the Agent on demand at the rate specified in Section 7.11 for
overdue principal on the Loans.
5.3. Letter of Credit Payments. If any draft shall be presented or
other demand for payment shall be made under any Letter of Credit, the Agent
shall notify the Parent of the date and amount of the draft presented or demand
for payment and of the date and time when it expects to pay such draft or honor
such demand for payment. If the applicable Borrower fails to reimburse the Agent
as provided in Section 5.2 on or before the date that such draft is paid or
other payment is made by the Agent, the Agent may at any time thereafter notify
the Banks of the amount of any such Unpaid Reimbursement Obligation. No later
than 1:00 p.m. (Boston time) on the Business Day next following the receipt of
such notice, each Bank shall make available to the Agent, at its Head Office, in
immediately available funds, such Bank's Commitment Percentage of such Unpaid
Reimbursement Obligation, together with an amount equal to the product of (a)
the average, computed for the period
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referred to in clause (c) below, of the weighted average interest rate paid by
the Agent for federal funds acquired by the Agent during each day included in
such period, times (b) the amount equal to such Bank's Commitment Percentage of
such Unpaid Reimbursement Obligation, times (c) a fraction, the numerator of
which is the number of days that elapse from and including the date the Agent
paid the draft presented for honor or otherwise made payment to the date on
which such Bank's Commitment Percentage of such Unpaid Reimbursement obligation
shall become immediately available to the Agent, and the denominator of which is
360. The responsibility of the Agent to the Borrowers and the Banks shall be
only to determine that the documents (including each draft) delivered under each
Letter of Credit in connection with such presentment shall be in conformity in
all material respects with such Letter of Credit.
5.4. Obligations Absolute. The Borrowers' obligations under this
Section 5 shall be absolute and unconditional under any and all circumstances
and irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which a Borrower may have or have had against the Agent, any Bank or any
beneficiary of a Letter of Credit. The Borrowers further agree with the Agent
and the Banks that the Agent and the Banks shall not be responsible for, and the
Borrowers' Reimbursement Obligations under Section 5.2 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even if such documents should in fact prove to be in any
or all respects invalid, fraudulent or forged, or any dispute between or among a
Borrower, the beneficiary of any Letter of Credit or any financing institution
or other party to which any Letter of Credit may be transferred or any claims or
defenses whatsoever of a Borrower against the beneficiary of any Letter of
Credit or any such transferee (unless any of the foregoing is as a result of the
Agent's gross negligence or willful misconduct). The Agent and the Banks shall
not be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit except for any error arising out of the
Agent's or any Bank's gross negligence or willful misconduct. The Borrowers
agree that any action taken or omitted by the Agent or any Bank under or in
connection with each Letter of Credit and the related drafts and documents, if
done in good faith, shall be binding upon the Borrowers and shall not result in
any liability on the part of the Agent or any Bank to the Borrowers.
5.5. Reliance by Issuer. To the extent not inconsistent with Section
5.4, the Agent shall be entitled to rely, and shall be fully protected in
relying upon, any Letter of Credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Agent.. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of the Majority Banks, and such request and any action
taken or failure to act pursuant thereto shall be binding upon the Banks and all
future holders of the Revolving Credit Notes or of a Letter of Credit
Participation.
5.6. Letter of Credit Fee. The Borrower requesting the Letter of Credit
shall, on the date of issuance or any extension or renewal of any Letter of
Credit and at such other time or times as such charges are customarily made by
the Agent or as specified below, pay a fee (in each case, a "Letter of Credit
Fee") to the Agent (a) in respect of each standby Letter of Credit, calculated
at a per annum rate equal to the sum of 0.125% plus the Applicable L/C Rate in
effect from time to time, payable quarterly in arrears on the first day
following each
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calendar quarter thereafter plus the Agent's customary issuance fee, and (b) in
respect of each documentary Letter of Credit, as the case may be, equal to (i)
the Agent's customary issuance fee or amendment fee, as the case may be, plus
(ii) the Agent's customary time negotiation fee per document examination (iii)
plus an amount calculated at a per annum rate equal to the sum of 0.125% plus
the Applicable L/C Rate in effect from time to time, payable quarterly in
arrears on the first day after each calendar quarter thereafter, plus (iv) a
negotiation fee, such Letter of Credit Fee calculated based on the Applicable
L/C Rate (but not such 0.125% fee or issuance, amendment, negotiation or
document examination fee, which shall be for the account of the Agent) to be for
the accounts of the Banks in accordance with their respective Commitment
Percentages.
6. GUARANTY.
6.1. Guaranty. For value received and hereby acknowledged and as an
inducement to the Banks and the Agent to make the Loans and Letters of Credit
available to the Borrowers, the Parent hereby unconditionally and irrevocably
guarantees (a) the full punctual payment when due, whether at stated maturity,
by acceleration or otherwise, of all Obligations of the Borrowers (other than
the Parent) now or hereafter existing whether for principal, interest, fees,
expenses or otherwise, and (b) the strict performance and observance by the
Borrowers of all agreements, warranties and covenants applicable to the
Borrowers in the Loan Documents and (c) the obligations of the Borrowers under
the Loan Documents (such Obligations collectively being hereafter referred to as
the "Guaranteed Obligations").
6.2. Guaranty Absolute. The Parent guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms hereof,
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 Bank with respect
thereto. The liability of the Parent under this guaranty with regard to the
Guaranteed Obligations of each of the Borrowers (other than the Parent) shall be
absolute and unconditional irrespective of:
(a) any Borrower's lack of authorization, execution, validity
or enforceability or any illegality of such Borrower's election to
become a Borrower, this Credit Agreement and any amendment hereof (with
regard to such Guaranteed Obligations), or any other obligation,
agreement or instrument relating thereto (it being agreed by the Parent
that the Guaranteed Obligations shall not be discharged prior to the
final and complete satisfaction of all of the Obligations of the
Borrowers) or any failure to obtain any necessary governmental consent
or approvals or necessary third party consents or approvals;
(b) the Agent's or any Bank's exercise or enforcement of, or
failure or delay in exercising or enforcing, legal proceedings to
collect the Obligations or the Guaranteed Obligations or any power,
right or remedy with respect to any of the Obligations or the
Guaranteed Obligations, including (i) any suspension of the Agent or
any Bank's right to enforce against any other Borrower of the
Guaranteed Obligations, or (ii) any change in the time, manner or place
of payment of, or in any other term of, all or any of the Guaranteed
Obligations of such Borrower or any other amendment or waiver of or any
consent to departure from this Credit Agreement or the other Loan
Documents (with regard to such Guaranteed Obligations) or any other
agreement or instrument governing or evidencing any of the Guaranteed
Obligations;
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(c) any exchange, release or non-perfection 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
such Borrower;
(d) any change in ownership of such Borrower;
(e) any acceptance of any partial payment(s) from such
Borrower;
(f) any insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition, assignment for the benefit of creditors,
appointment of a receiver or trustee for all or any part of any
Borrower's assets;
(g) any assignment, participation or other transfer, in whole
or in part, of the Agent's or any Bank's interest in and rights under
this Credit Agreement or any other Loan Document, or of the Agent or
any Bank's interest in the obligations or the Guaranteed Obligations;
(h) any cancellation, renunciation or surrender of any pledge,
guaranty or any debt instrument evidencing the Obligations or the
Guaranteed Obligations;
(i) the Agent's or any Bank's vote, claim, distribution,
election, acceptance, action or inaction in any bankruptcy or
reorganization case related to the Obligations or the Guaranteed
Obligations; or
(j) any other action or circumstance, other than payment,
which might otherwise constitute a defense available to, or a discharge
of, such Borrower or the Guarantor in respect of its Guaranteed
Obligations (other than the defense of payment in full in cash).
This guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any Guaranteed Obligation is
rescinded or must otherwise be returned by the Agent or any Bank upon the
insolvency, bankruptcy or reorganization of any Borrower or otherwise, all as
though such payment had not been made.
6.3. Effectiveness; Enforcement. The guaranty hereunder shall be
effective and shall be deemed to be made with respect to each Loan made and each
Letter of Credit issued as of the time it is made, issued or accepted, as
applicable. 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 any
Borrower, and no defect in or insufficiency or want of powers of any Borrower or
irregular or improperly recorded exercise thereof, shall impair, affect, be a
defense to or claim against such guaranty. The guaranty hereunder is a
continuing guaranty and shall (a) survive any termination of this Credit
Agreement, and (b) remain in full force and effect until payment in full of, and
performance of, all Guaranteed Obligations and all other amounts payable under
the guaranty hereunder. The guaranty under this Credit Agreement is made for the
benefit of the Agent and 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 Agent or the Banks first to exercise any rights
against the Borrowers, or to resort to any other source or means of obtaining
payment of any of the said obligations or to elect any other remedy.
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6.4. Waiver. The Parent hereby waives promptness, diligence, protest,
notice of protest, all suretyship defenses, notice of acceptance and any other
notice with respect to any of the Guaranteed Obligations and the guaranty under
and any requirement that the Banks or the Agent protect, secure, perfect any
security interest or lien or any property subject thereto or exhaust any right
or take any action against the Borrowers, or any other Person. 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 (other than the defense of payment in
full in cash).
6.5. Concerning Joint and Several Liability of the Parent.
(a) The Parent hereby irrevocably and unconditionally accepts,
not merely as a surety but also as a co-debtor, joint and several
liability with the applicable Borrower, with respect to the payment and
performance of all of the Guaranteed Obligations, it being the
intention of the parties hereto that all such Guaranteed Obligations
shall be the joint and several Guaranteed Obligations of such Parent
and the applicable Borrowers without preferences or distinction among
them.
(b) If and to the extent that the applicable Borrowers shall
fail to make any payment with respect to any of its Guaranteed
Obligations as and when due or to perform any of the Guaranteed
Obligations in accordance with the terms thereof, then in each such
event the Parent will make such payment with respect to, or perform,
such Guaranteed Obligation.
(c) The Guaranteed Obligations of the Parent under the
provisions of this Section 6 constitute full recourse obligations of
the Parent enforceable against the Parent to the full extent of its
properties and assets, irrespective of the validity, regularity or
enforceability of this Credit Agreement or any other circumstance
whatsoever.
(d) The Parent hereby waives notice of acceptance of its joint
and several liability, notice of any Loans made or Letters of Credit
issued under this Credit Agreement, notice of any action at any time
taken or omitted by the Agent or the Banks under or in respect of any
of the Guaranteed Obligations, and, generally, to the extent permitted
by applicable law, all demands, notices and other formalities of every
kind in connection with this Credit Agreement. The Parent hereby
assents to, and waives notice of, any extension or postponement of the
time for the payment of any of the Guaranteed Obligations, the
acceptance of any payment of any of the Guaranteed Obligations, the
acceptance of any partial payment thereon, any waiver, consent or other
action or acquiescence by the Agent or the Banks at any time or times
in respect of any Default or Event of Default by any of the Borrowers
or the Parent in the performance or satisfaction of any term, covenant,
condition or provision of this Credit Agreement, any and all other
indulgences whatsoever by the Agent or the Banks in respect of any of
the Guaranteed Obligations, and the taking, addition, substitution or
release, in whole or in part, at any time or times, of any security for
any of the Guaranteed Obligations or the addition, substitution or
release, in whole or in part, of any of the Borrowers or any other
guarantor. Without limiting the generality of the foregoing, the Parent
assents to any other action or delay in acting or failure to act on the
part of the Banks or the Agent with respect to the failure by any of
the Borrowers or the other guarantor to comply with its
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respective Obligations or guaranty, including, without limitation, any
failure strictly or diligently to assert any right or to pursue any
remedy or to comply fully with applicable laws or regulations
thereunder, which might, but for the provisions of this Section 6,
afford grounds for terminating, discharging or relieving the
Parent, in whole or in part, from any of the Guaranteed Obligations
under this Section 6, it being the intention of the Parent that, so
long as any of the Guaranteed Obligations hereunder remain
unsatisfied, the Guaranteed Obligations of the Parent under this
Section 6 shall not be discharged except by performance and then only
to the extent of such performance. The Guaranteed Obligations of the
Parent under this Section 6 shall not be diminished or rendered
unenforceable by any winding up, reorganization, arrangement,
liquidation, reconstruction or similar proceeding with respect to any
of the Borrowers or the Parent or the Banks or the Agent. The joint
and several liability of the Parent hereunder shall continue in full
force and effect notwithstanding any absorption, merger,
consolidation, amalgamation or any other change whatsoever in the
name, membership, constitution or place of formation of the Borrowers
or the Parent, the Banks or the Agent.
(e) The provisions of this Section 6 are made for the benefit
of the Agent and the Banks and their successors and assigns, and may be
enforced in good faith by them from time to time against the Parent as
often as occasion therefor may arise and without requirement on the
part of the Agent or the Banks first to marshal any of their claims or
to exercise any of their rights against the Borrowers or any other
guarantor or to exhaust any remedies available to them against the
Borrowers or any other Parent or to resort to any other source or means
of obtaining payment of any of the obligations hereunder or to elect
any other remedy. The provisions of this Section 6 shall remain in
effect until all of the Guaranteed Obligations shall have been
paid in full or otherwise fully satisfied and the Commitments have
expired and all outstanding Letters of Credit have expired, matured or
otherwise been terminated. If at any time, any payment, or any part
thereof, made in respect of any of the Guaranteed Obligations, is
rescinded or must otherwise be restored or returned by the Banks or
the Agent upon the insolvency, bankruptcy or reorganization of any of
the Borrowers or the Parent, or otherwise, the provisions of this
Section 6 will forthwith be reinstated in effect, as though such
payment had not been made.
6.6. Waiver. Until the final payment and performance in full of all of
the Obligations, the Parent shall not exercise and hereby waives any rights the
Parent may have against the Borrowers arising as a result of payment by the
Parent hereunder, by way of subrogation, reimbursement, restitution,
contribution or otherwise, and will not prove any claim in competition with the
Agent or any Bank in respect of any payment hereunder in any bankruptcy,
insolvency or reorganization case or proceedings of any nature; the Parent will
not claim any setoff, recoupment or counterclaim against the Borrowers in
respect of any liability of any Borrower to the Parent; and the Parent waives
any benefit of and any right to participate in any collateral security which may
be held by the Agent or any Bank.
6.7. Subrogation; Subordination. The payment of any amounts due with
respect to any indebtedness of the Borrowers for money borrowed or credit
received now or hereafter owed to the Parent is hereby subordinated to the prior
payment in full of all of the Obligations of such Borrower on the terms
hereinafter set forth in this Section 6.7; provided, however, that so long as no
Default or Event of Default has occurred and is continuing, nothing in this
Section 6.7 shall prohibit any of the Borrowers from making regularly scheduled
payments of principal and interest to the Parent when such obligations become
due and
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payale. The Parent agrees that, after the occurrence and during the continance
of any default in the payment or performance of any of the Obligations of a
Borrower, the Parent will not demand, sue for or otherwise attempt to collect
any such indebtedness of such Borrower to the Parent until all of the
Obligations of such Borrower shall have been paid in full. If, notwithstanding
the foregoing sentence, the Parent shall collect, enforce or receive any
amounts in respect of such indebtedness in violation of the foregoing sentence
while any Obligations of such Borrower are still outstanding, such amounts
shall be collected, enforced and received by the Parent as trustee for the Bank
and the Agent and be paid over to the Agent, for the benefit of the Banks and
the Agent on account of the Obligations of such Borrower without affecting in
any manner the liability of the Parent under the other provisions hereof.
6.8. Currency of Payment. The Parent shall pay its respective
Guaranteed Obligations in the currency in which such Obligation was incurred by
the applicable Borrower.
6.9. Underlying Obligations. Anything in this Section 6 to the contrary
notwithstanding, the Agent and the Banks hereby agree that the Banks shall not
enter into any amendment to this Credit Agreement with any of the Borrowers
(other than the Parent) without the consent of the Parent.
7. CERTAIN GENERAL PROVISIONS.
7.1. Closing Fee. The Borrowers agrees to pay to the Agent a closing
fee in accordance with the Agent's Letter Agreement.
7.2. Agent's Fee. The Borrowers shall pay to the Agent annually in
advance, for the Agent's own account, on the Closing Date and on each
anniversary of the Closing Date, an Agent's fee in the amount of $50,000.
7.3. Funds for Payments.
7.3.1. Payments to Agent. All payments of principal, interest,
Reimbursement Obligations, facility fees, Letter of Credit Fees and any
other amounts due hereunder or under any of the other Loan Documents
shall be made in Dollars to the Agent, for the respective accounts of
the Banks and the Agent, at the Agent's Head Office or at such other
location that the Agent may from time to time designate, in each case
in immediately available funds. All payments of principal of and
interest on Loans made to any Borrower which are denominated in an
Optional Currency or Currencies and all other fees due hereunder shall
be made by such Borrower to the Agent on the currency of such Loans, at
or prior to 11:00 a.m., local time, on any payment date, in immediately
available funds, for the account of the Agent, at a depository
designated by the Agent in the country in which such Optional Currency
is a legal tender. Each payment in respect of any Loan made by such
Borrower shall be made in the same currency in which such Loan was made
unless otherwise agreed to by the Agent. The Agent shall be entitled to
debit payment when due in order to effect timely payment thereof. Upon
receipt by the Agent of any such payment, the Agent shall promptly send
by wire transfer, in immediately available like funds, to each Bank, to
an individual account designated by such Bank, such Bank's pro rata
share of such payment.
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7.3.2. No Offset, Etc. All payments by a 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
(other than Excluded Taxes). Subject to the limitations in Section 7.7
hereof, if any Borrower is compelled by law to make such deduction or
withholding with respect to any amount payable by it hereunder or under
any of the other Loan Documents (other than for Excluded Taxes), (i)
such Borrower will pay to the Agent, for the account of the Banks or
(as the case may be) the Agent, on the date on which such amount is due
and payable hereunder or under such other Loan Document, such
additional amount in Dollars as shall be necessary after making all
required deductions (including deductions applicable to additional
amounts payable under this Section 7.3.2) to enable the Banks or the
Agent to receive the same net amount which the Banks or the Agent
would have received on such due date had no such obligation been
imposed upon such Borrower, (ii) such Borrower shall make such
deductions and (iii) such Borrower shall pay the full amount deducted
to the relevant taxation authority or other authority in accordance
with applicable law Such Borrower will deliver promptly to the Agent
certificates or other valid vouchers for all taxes or other charges
deducted from or paid with respect to payments made by such Borrower
hereunder or under such other Loan Document (other than for Excluded
Taxes).
7.4. Computations. All computation of interest on the Loans and of
facility fees, Letter of Credit Fees shall be based on a 360-day year and paid
for the actual number of days elapsed, except that interest on Base Rate Loans
shall be based on a 365 or 366-day year, as the case may be, and paid for the
actual number of days elapsed. Except as otherwise provided in the definition of
the term "Interest Period" with respect to Eurocurrency Rate Loans, whenever a
payment hereunder or under any of the other Loan Documents becomes due on a day
that is not a Business Day, the due date for such payment shall be extended to
the next succeeding Business Day, and interest shall accrue during such
extension. The outstanding amount of the Loans as reflected on the Revolving
Credit Note Records from time to time shall be considered correct and binding on
the Borrowers unless within five (5) Business Days after receipt of any notice
by the Agent or any of the Banks of such outstanding amount, a Borrower shall
notify the Agent and the Banks to the contrary.
7.5. Inability to Determine Eurocurrency Rate. In the event, prior to
the commencement of any Interest Period relating to any Eurocurrency Rate Loan,
the Agent shall determine that adequate and reasonable methods do not exist for
ascertaining the Eurocurrency Rate that would otherwise determine the rate of
interest to be applicable to any Eurocurrency Rate Loan during any Interest
Period or deposits of Dollars or the relevant Optional Currency, as the case may
be, in the relevant Interest Period are not available to any Bank or the Agent
in the relevant Eurocurrency Interbank Market, the Agent shall forthwith give
notice of such determination (which shall be conclusive and binding on the
Borrowers and the Banks) to the Parent and the Banks. In such event (a) any Loan
Request or Conversion Request with respect to Eurocurrency Rate Loans shall be
automatically withdrawn and shall be deemed a request for Base Rate Loans, (b)
each Eurocurrency Rate Loan will automatically, on the last day of the then
current Interest Period relating thereto if denominated in Dollars, become a
Base Rate Loan and if denominated in Optional Currency be repaid, and (c) the
obligations of the Banks to make Eurocurrency Rate Loans or Loans in such
Optional Currency, as the case may be, shall be suspended until the Agent
determines
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that the circumstances giving rise to such suspension no longer exist, whereupon
the Agent shall so notify the Parent and the Banks.
7.6. 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
Eurocurrency Rate Loans or perform its obligations in respect of any Loans in
any Optional Currency or Currencies, such Bank shall forthwith give notice of
such circumstances to the Parent and the other Agent, and the Agent shall then
give notice to the other Banks, and thereupon (a) the commitment of such Bank to
make Eurocurrency Rate Loans or convert Loans of another Type to Eurocurrency
Rate Loans or to make Loans in such Optional Currency, as the case may be, shall
forthwith be suspended and (b) such Bank's Revolving Credit Loans then
outstanding as Eurocurrency Rate Loans and denominated in Dollars, if any, shall
be converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such Eurocurrency Rate Loans or within such earlier period
as may be required by law and the Loans then outstanding as Eurocurrency Rate
loans and denominated in Optional Currency, if any, shall be repaid on the last
day of each Interest Period applicable to such Eurocurrency Rate Advance or
within such earlier period as may be required by law. The Parent hereby agrees
promptly to pay the Agent for the account of such Bank, upon demand by such
Bank, any additional amounts necessary to compensate such Bank for any costs
incurred by such Bank in making any conversion in accordance with this Section
7.6, including any interest or fees payable by such Bank to lenders of funds
obtained by it in order to make or maintain its Eurocurrency Rate Loans
hereunder.
7.7. Additional Costs, Etc. If any present or future applicable law,
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank or the Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost,
duty, charge, fee, deduction or withholding of any nature with respect
to this Credit Agreement, the other Loan Documents, any Letters of
Credit, such Bank's Commitment or the Loans (other than Excluded
Taxes), or
(b) 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 letters of credit issued by, or commitments of an office of any
Bank (except to the extent already reflected in the calculation of the
Eurocurrency Rate), or
(c) impose on any Bank or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
Documents, any Letters of Credit, the Loans, such Bank's Commitment, or
any class of loans, letters of credit or commitments of which any of
the Loans or such Bank's Commitment forms a part,
and the result of any of the foregoing is
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(i) to increase the cost to any Bank of making,
funding, issuing, renewing, extending or maintaining any of the Loans
or such Bank's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Bank or the
Agent hereunder on account of such Bank's Commitment, any Letter of
Credit or any of the Loans, or
(iii) to require such Bank or the Agent to make any
payment or to forego any interest or Reimbursement Obligation or other
sum payable hereunder, the amount of which payment or foregone interest
or Reimbursement Obligation or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by such Bank
or the Agent from the Borrower hereunder,
then, and in each such case, the Borrowers will, upon demand made by such Bank
or (as the case may be) the Agent at any time and from time to time and as often
as the occasion therefor may arise, pay to such Bank or the Agent such
additional amounts as will be sufficient to compensate such Bank or the Agent
for such additional cost, reduction, payment or foregone interest or
Reimbursement Obligation or other sum. In the case of payments arising by reason
of clauses (b) or (c) of this Section 7.7, each Bank agrees to provide the
Parent with notice within ninety (90) days of becoming aware of any fact giving
rise to this Section 7.7, and if it shall fail to do so, the Parent shall not
be obligated to pay any amounts to such Bank arising by reason of such clauses.
On or before the date it becomes a party to this Credit Agreement and from time
to time thereafter upon any change in status rendering any certificate or
document previously delivered pursuant to this sentence invalid or inaccurate,
each Bank that is organized under the laws of a jurisdiction outside the United
States shall (but, with respect to any renewal or change in status, only to the
fullest extent that it is legally able to do so) deliver to the Parent and each
other Domestic Borrower such certificates, documents or other evidence, as
required by the Code or Treasury Regulations issued pursuant thereto, including
Internal Revenue Service Form 1001 or Form 4224 and any other certificate or
statement of exemption required by Treasury Regulation Section 1.1441-1,
1.1441-4 or 1.1441-6(c) or any subsequent version thereof or subsequent version
thereto, properly completed and duly executed by such Bank establishing that
such payment is (a) not subject to United States Federal withholding tax under
the Code because such payment is effectively connected with conduct by such Bank
of a trade or business in the United States or (b) totally exempt from United
States Federal withholding tax, or (other than in the case of such Bank on the
date such Bank became a party to this Credit Agreement), subject to a reduced
rate of such tax under a provision of an applicable tax treaty and in any event
not subject to any back-up withholding. In addition, on or before the date on
which each Foreign Borrower becomes a party to this Credit Agreement, and from
time to time thereafter upon any change in status rendering any certificate or
document previously delivered pursuant to this paragraph invalid or inaccurate,
each Bank that is organized under the laws of a jursidiction other than that in
which such Borrower is organized shall, to the extent requested by such Borrower
and to the fullest extent that it lawfully may do so, deliver to such Borrower
such certificates, documents, or other evidence, as required by applicable law
or treaty, properly completed and duly executed by such Bank, establishing that
such payment is (x) not subject to withholding tax under the law of such
jurisdiction or (y) totally exempt from such withholding tax or subject to a
reduced rate of such tax under a provision of an applicable tax treaty, and in
any event not subject to any back-up withholding. The relevant Borrower
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agrees to furnish to each Bank the applicable tax forms promptly upon request
therefor. Neither the Parent nor any Borrower shall be required to pay any
additional amounts to any Bank pursuant to Section 7.3 or this Section 7.7 to
the extent that the obligation to pay such additional amounts would not have
arisen but for a failure by such Bank to comply with the provisions of the
preceding sentences.
Any Bank claiming any additional amounts payable pursuant to Section
7.3 or this Section 7.7 shall use reasonable efforts (consistent with legal and
regulatory restrictions) to file any certificate or document reasonably
requested in writing by the Parent or to change the jurisdiction of its
applicable lending certificate office if the making of such a filing or change
would avoid the need for or substantially reduce the amount of any such
additional amounts which may thereafter accrue and would not, in the sole and
absolute determination of such Bank be otherwise disadvantageous to such Bank,
which determination by such Bank shall be conclusive.
If a Bank or the Agent shall become aware that it is entitled to
receive a refund in respect of taxes as to which it has been indemnified by the
Parent or any Borrower pursuant to Section 7.3 or this Section 7.7, it shall
promptly notify the Parent of the availability of such refund and shall, within
thirty (30) days after receipt of a request by the Parent, apply for such
refund at the Parent's expense. If any Bank or the Agent, as applicable,
receives a refund in respect of any taxes to which it has been indemnified by
the Parent pursuant to Section 7.3 or this Section 7.7, it shall promptly
repay such refund to the Parent (to the extent of amounts that have been paid
by the Parent or any Borrower under Section 7.3 or this Section 7.7 with
respect to such refund), net of all out-of-pocket expenses (including taxes
imposed with respect to such refund) of such Bank or the Agent, as applicable,
and without interest; provided, however, that the Borrower, upon the request of
such Bank or the Agent, as applicable, agrees to return such refund (plus
penalties, interest or other charges) to such Bank or the Agent in the event
such Bank or the Agent is required to repay such refund. In addition, if any
Borrower or the Parent makes a payment of any amounts in respect of taxes
under Section 7.3 or this Section 7.7 and such Bank later realizes any other
type of tax saving or other benefit (whether by receipt of a foreign tax
credit, relief or repayment in respect of any tax or other imposition paid or
payable by it or otherwise) in any jurisdiction, if such Bank determines, in
its sole discretion and using any method which such Bank deems appropriate,
that all or any portion of such tax saving or benefit is allocable to any taxes
paid or indemnified by the Parent or any Borrower under this Credit Agreement,
such Bank will promptly pay to such Borrower or the Parent, as the case may be,
an amount equal to such portion. Nothing contained in this paragraph shall (a)
entitle the Parent or any Borrower to inspect or review any books or records of
any Bank, (b) require any Bank to disclose any information concerning its tax
position or any other information determined by any Bank, in its sole
discretion to be confidential or proprietary, (c) require any Bank to
establish procedures for allocating to specific transactions any tax savings
or benefits attributable to payments in respect of taxes of the type described
in Section 7.3 and Section 7.7 or (d) require any Bank to disclose or detail
the basis of any calculation of the amount of any tax saving or benefit
obtained by such Bank or the basis of any determination made by such Bank
under this paragraph.
7.8. Capital Adequacy. If after the date hereof any Bank (which, for
purposes of this Section 7.8 shall include any corporation controlling such
Bank) or the Agent determines that 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 has the effect
of reducing the
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return on such Bank's or the Agent's Commitment, any Loans made by it, or any
Letter of Credit or participation therein to a level below that which such Bank
or the Agent could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's or the Agent's then existing policies
with respect to capital adequacy and assuming full utilization of such entity's
capital) by any amount deemed by such Bank or (as the case may be) the Agent to
be material, then such Bank or the Agent may notify the Parent of such fact. To
the extent that the amount of such reduction in the return on capital is not
reflected in the Base Rate, the Parent and such Bank shall thereafter attempt to
negotiate in good faith, within thirty (30) days of the day on which the Parent
receives such notice, an adjustment payable hereunder that will adequately
compensate such Bank in light of these circumstances. If the Parent and such
Bank are unable to agree to such adjustment within thirty (30) days of the date
on which the Parent receives such notice, then commencing on the date of such
notice (but not earlier than the effective date of any such increased capital
requirement), the fees payable hereunder shall increase by an amount that will,
in such Bank's reasonable determination, provide adequate compensation. Each
Bank shall allocate such cost increases among its customers in good faith and on
an equitable basis. Each Bank agrees to provide the Parent with notice within
ninety (90) days of becoming aware of any fact giving rise to this Section 7.8,
and if it shall fail to do so, the Parent shall not be obligated to pay any
adjustment or other increased amount to such Bank under this Section 7.8.
7.9. Certificate. A certificate setting forth any additional amounts
payable pursuant to Sections 4.10, 7.7, 7.8 or 7.10 and a brief explanation of
such amounts which are due and setting forth the calculations of such amounts
due in reasonable detail, submitted by any Bank or the Agent to the Borrower,
shall be conclusive, absent manifest error, that such amounts are due and owing.
7.10. Indemnity. The Borrowers agree to indemnify each Bank and to hold
each Bank harmless from and against any loss, cost or expense (excluding loss of
anticipated profits) that such Bank may sustain or incur as a consequence of (a)
default by a Borrower in payment of the principal amount of or any interest on
any Eurocurrency Rate Loans as and when due and payable, to the extent that such
loss or expense arises from interest or fees payable by such Bank to lenders of
funds obtained by it in order to maintain its Eurocurrency Rate Loans, (b)
default by a Borrower in making a borrowing or conversion after a Borrower has
given (or is deemed to have given) a Loan Request or a Conversion Request
relating thereto in accordance with Section 2.6 or Section 2.7 or (c) the
making of any payment of a Eurocurrency Rate Loan or the making of any
conversion of any such Loan to a Base Rate Loan on a day that is not the last
day of the applicable Interest Period with respect thereto, including interest
or fees payable by such Bank to lenders of funds obtained by it in order to
maintain any such Loans.
7.11. 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 rate of interest otherwise applicable to such amount
hereunder until the last day of the applicable Interest Period relating to such
overdue amounts, and thereafter at two percent (2%) above the Base Rate until
such amount shall be paid in full (after as well as before judgment).
7.12. Lending Office. Each Loan made by the Banks in an Optional
Currency, and each payment by any borrower in respect thereof, shall be made by,
or as the case may be,
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for the account of, such applicable lending office of such Bank as such Bank
shall designate; provided that if any Bank changes its lending office, neither
the Parent nor any Borrower shall be liable for any amounts under Sections 4.10,
7.7 to the extent it relates to amounts other than taxes, 7.8 or 7.10 hereof in
excess of those which the Bank would have otherwise been entitled to in its
previous lending office.
7.13. Replacement Banks. Within thirty (30) days after (a) any Bank has
demanded compensation from the Parent pursuant to Sections 7.7 or 7.8 hereof, or
(b) there shall have occurred a change in law with respect to any Bank as a
consequence of which it shall have become unlawful for such Bank to make a
Eurocurrency Rate Loan on any Drawdown Date, as described in Section 7.6
hereof (any such Bank described in the foregoing clauses (a) or (b) is
hereinafter referred to as an "Affected Bank"), the Borrower may request that
the other Banks (the "Non-Affected Banks") acquire all, but not less than all,
of the Affected Bank's outstanding Loans and assume all, but not less than all,
of the Affected Bank's Commitment. If the Parent so requests, the Non-Affected
Banks may elect to acquire all or any portion of the Affected Bank's
outstanding Loans and to assume all or any portion of the Affected Bank's
Commitment. If the Non-Affected Banks do not elect to acquire and assume all of
the Affected Bank's outstanding Loans and Commitment, the Parent may designate
a replacement bank or banks, which must be satisfactory to the Agent, to
acquire and assume that portion of the outstanding Loans and Commitment of the
Affected Bank not being acquired and assumed by the Non-Affected Banks. The
provisions of Section 20 hereof shall apply to all reallocations pursuant to
this Section 7.13, and the Affected Bank and any Non-Affected Banks and/or
replacement banks which are to acquire the Loans and Commitment of the Affected
Bank shall execute and deliver to the Agent, in accordance with the provisions
of Section 20 hereof, such Assignments and Acceptances and other instruments,
as are required pursuant to Section 20 hereof to give effect to such
reallocations; provided, however, the Parent shall be required to pay the
registration fee set forth in Section 20.3. Any Non-Affected Banks and/or
replacement banks which are to acquire the Revolving Credit Loans and Commitment
of the Affected Bank shall be deemed to be Eligible Assignees for all purposes
of Section 20 hereof. On the effective date of the applicable Assignments and
Acceptances, the Borrower shall pay to the Affected Bank all interest accrued on
its Loans up to but excluding such date, along with any fees payable to such
Affected Bank hereunder up to but excluding such date, including, without
limitation, any amounts that would have been payable pursuant to Section 7.10
hereof in connection with a prepayment.
8. REPRESENTATIONS AND WARRANTIES.
Each of the Borrowers represents and warrants to the Banks and the
Agent as follows:
8.1. Corporate Existence and Power. Each Borrower is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified to transact business in
every jurisdiction where, by the nature of its business, such qualification is
necessary, except for any failure to comply with the foregoing which could not
reasonably be expected to have a Material Adverse Effect, and has all corporate
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted, except for any failure to
comply with the foregoing which could not reasonably be expected to have a
Material Adverse Effect.
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8.2. Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by each Borrower of this Credit Agreement,
the Notes and the other Loan Documents executed by such Borrower (a) are within
such Borrower's corporate powers, (b) have been duly authorized by all necessary
corporate action, (c) require no action by or in respect of or filing with, any
governmental body, agency or official, (d) do not contravene, or constitute a
default under, any material provision of applicable law or regulation or of the
certificate of incorporation or by-laws of such Borrower or, to the best of such
Borrower's knowledge, of any material agreement relating to Debt, or other
material instrument relating to Debt, judgment, injunction, order, decree
binding upon such Borrower or any of the Subsidiaries, and (e) do not result in
the creation or imposition of any Lien on any asset of such Borrower or any of
the Subsidiaries.
8.3. Binding Effect. This Credit Agreement constitutes a valid and
binding agreement of each Borrower enforceable in accordance with its terms, and
the Notes and the other Loan Documents executed by each Borrower, when executed
and delivered in accordance with this Credit Agreement, will constitute valid
and binding obligations of such Borrower enforceable in accordance with their
respective terms, provided that the enforceability hereof and thereof is subject
in each case to general principles of equity and to bankruptcy, insolvency and
similar laws affecting the enforcement of creditors' rights generally.
8.4. Financial Information. (a) The consolidated balance sheet of the
Parent and its Consolidated Subsidiaries as of June 30, 1996 and the related
consolidated statements of income, shareholders', equity and cash flows for the
Fiscal Year then ended, reported on by Ernst & Young LLP, copies of which have
been delivered to each of the Banks, and the unaudited consolidated financial
statements of the Parent for the interim period ended September 30, 1996, copies
of which have been delivered to each of the Banks, (i) in the case of the
aforementioned annual financial statements, fairly present, in conformity with
generally accepted accounting principles, the consolidated financial position of
the Parent and its Consolidated Subsidiaries as of such dates and their
consolidated results of operations and cash flows for such periods stated and
(ii) in the case of the aforementioned interim financial statements, reflect all
adjustments consisting only of normal recurring accruals necessary for a fair
presentation of the consolidated financial condition of the Parent and its
Subsidiaries as of such date and the consolidated results of their operations
and changes in their cash flow for the period then ended, except that such
interim financial statements omit certain footnotes and are subject to normal
year-end adjustments; provided, that, during the term of this Credit Agreement
after the Closing Date, future representation as to the matters set forth in
this Section 8.4(a) shall be deemed to refer to the most recent financial
statements delivered pursuant to Section 9.4(a) and (b), respectively,
including the notes thereto and any statements of the Parent or auditors
accompanying such financial statements.
(b) Except for matters disclosed in the Parent's (i) Form 10-K for the
fiscal year ended June 30, 1996 (the "Form 10-K"), (ii) Form 10-Q for the
quarterly period ended September 30, 1996 (the "Form 10-Q"), and (iii) Form 8-K
filed on November 21, 1996 (the "Form 8-K") as to which the ultimate outcome,
and whether such matters could not reasonably be expected to have a Material
Adverse Effect, cannot be determined at this time, and, in the case of actions,
suits or proceedings, any other actions, suits or proceedings based primarily on
allegations similar to those contained in such proceedings, since September 30,
1996, there has been no event, act, condition or occurrence having a Material
Adverse Effect; provided, that, during the term of this Credit Agreement after
the Closing Date, future representations as to the matters set forth in this
Section 8.4 shall be deemed to refer to the most recent financial statements
delivered pursuant to Section 9.4(a) or (b), respectively,
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including notes thereto and any statement of the Parent or auditors accompanying
such financial statements.
8.5. No Litigation. Except for the proceedings described in the Form
10-K, the Form 10-Q and Form 8-K referred to above, as to which the ultimate
outcome, and whether such proceedings would have a Material Adverse Effect,
cannot be determined at this time, and any other actions, suits or proceedings
based primarily on allegations similar to those contained in such proceedings,
there is no action, suit or proceeding pending, or to the knowledge of each
Borrower threatened, against or affecting such Borrower or any of the
Subsidiaries before any court or arbitrator or any governmental body, agency or
official which could have a Material Adverse Effect or which could impair in any
material respect the ability of the Borrowers taken as a whole or, on the
occasion of each borrowing, of the Borrower making such borrowing, to perform
its obligations under, this Credit Agreement, the Notes or any of the other Loan
Documents executed by such Borrower. In addition, there is no action, suit or
proceeding pending, or to the knowledge of each Borrower threatened, against or
affecting such Borrower or any of the Subsidiaries before any court or
arbitrator or any governmental body, agency or official which in any manner
draws into question the validity of this Credit Agreement, the Notes or any of
the other Loan Documents executed by such Borrower.
8.6. Compliance with ERISA. (a) The Parent and each member of the
Controlled Group have fulfilled its obligations under the minimum funding
standards of ERISA and the Code with respect to each Plan and is in compliance
in all material respects with the presently applicable Provisions of ERISA and
the Code with respect to each Plan, and has not incurred any liability to the
PBGC or a Plan under Title IV of ERISA, provided, that the Parent makes no
representation or warranty under this Section 5.06 as to any Subsidiary for
matters pertaining to periods prior to the date on which such Subsidiary became
a Subsidiary of the Parent except to the extent that the Parent received any
such representations and/or warranties from the seller (or any of its
affiliates) of any relevant Subsidiary in connection with the acquisition of any
relevant Subsidiary.
(b) Neither the Parent nor any member of the Controlled Group is or
ever has been obligated to contribute to any Multiemployer Plan provided, that
the Parent makes no representation or warranty under this Section 8.6 as to any
Subsidiary for matters pertaining to periods prior to the date on which such
Subsidiary became a Subsidiary of the Parent except to the extent that the
Parent received any such representations and/or warranties from the seller (or
any of its affiliates) of any relevant Subsidiary in connection with the
acquisition of any relevant Subsidiary.
8.7. Compliance with Laws; Payment of Taxes. Each Borrower and each
Material Subsidiary is in compliance with all applicable laws, regulations and
similar requirements of governmental authorities, except where such compliance
is being contested in good faith through appropriate proceedings or the
non-compliance of which could not reasonably be expected to have a Material
Adverse Effect. There have been filed on behalf of each Borrower and each
Material Subsidiary all Federal, state and material local income, excise,
property and other tax returns which are required to be filed by them and all
taxes due pursuant to such returns or pursuant to any assessment received by or
on behalf of such Borrower or any Material Subsidiary have been paid or are
being contested in good faith or, if unpaid and uncontested, are in immaterial
amounts. The charges, accruals and reserves on the books of each Borrower and
each Material Subsidiary in respect of taxes or other governmental charges are,
in the opinion of such Borrower, adequate. United States income
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tax returns of each Borrower which is a U.S. Person and each Subsidiary which is
a U.S. Person have been examined and closed through the Fiscal Year ended 1988.
8.8. Subsidiaries. The Parent represents that each Material Subsidiary
which is not a Borrower is a corporation or joint venture duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted, except for failures to comply with the foregoing which could not
reasonably be expected to have a Material Adverse Effect. The Parent has no
active Subsidiaries except for those Subsidiaries listed on Exhibit 22 of
Parent's annual report on form 10-K, as updated from time to time by filing with
the Securities and Exchange Commission or by notice to the Agents or in Schedule
8.8 hereto. All of Parent's Subsidiaries which are Material Subsidiaries as of
the Fiscal Quarter most recently ended at the Closing Date or any later date of
determination and for which financial statements are required to have been
delivered pursuant to Section 9.4(a) or (b), are specified in Schedule 8.8, as
supplemented from time to time pursuant to Section 9.13.
8.9. Investment Company Act. Neither any Borrower nor any of
Subsidiaries is an "investment company,, within the meaning of the Investment
Company Act of 1940, as amended.
8.10. Public Utility Holding Company Act. Neither any Borrower nor any
of Subsidiaries is a "holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
8.11. Ownership of Property; Liens. Each of the Borrower and the
Material Subsidiaries has title to or leasehold or other interests in its
material properties sufficient for the conduct of its business, and none of such
property is subject to any Lien except as permitted in the Section 10.2.
8.12. No Default. Neither any Borrower nor any of the Consolidated
Subsidiaries is in default under or with respect to any agreement, instrument or
undertaking to which it is a party or by which it or any of its property is
bound which could reasonably be expected to have or cause a Material Adverse
Effect. No Default or Event of Default has occurred and is continuing.
8.13. Full Disclosure. To the best of each Borrower's knowledge, all
written information heretofore furnished by the Borrowers to the Agent or any
Bank for purposes of or in connection with this Credit Agreement or any
transaction contemplated hereby is, and all such information hereafter furnished
by the Borrowers to the Agent or any Bank will be true, accurate and complete in
every material respect or based on reasonable estimates on the date as of which
such information is stated or certified.
8.14. Environmental Matters. (a) To the best of each Borrower' s actual
knowledge (without having performed any further independent inquiry therefor
solely in connection with this Credit Agreement), neither any Borrower nor any
Subsidiary is aware that it is subject to any Environmental Liability which
could reasonably be expected to have or cause a Material Adverse Effect, neither
any Borrower nor any Subsidiary (except in respect of immaterial Environmental
Liabilities in de minimis amounts) has received notice that it has been
designated as a potentially responsible party under CERCLA or under any state
statute similar to CERCLA, and none of the Properties located in the United
States, owned by any
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Borrower or a Material Subsidiary, has been identified on any current or
proposed (i) National Priorities List under 40 C.F.R. Section 300, (ii)
CERCLIS list or (iii) any list arising from a state statute similar to CERCLA.
(b) To the best of each Borrower's actual knowledge, (without having
performed any further independent inquiry therefor solely in connection with
this Agreement), no Hazardous Materials have been or are being used, produced,
manufactured, processed, treated, recycled, generated, stored, disposed of,
managed or otherwise handled at, or shipped or transported to or from the
Properties or are otherwise present at, on, in or under the Properties owned by
any Borrower or a Material Subsidiary, or, to the best of the actual knowledge
of each Borrower, at or from any adjacent site or facility, except for Hazardous
Materials, such as cleaning solvents, pesticides and other materials used
produced, manufactured, processed, treated, recycled, generated, stored disposed
of, managed, or otherwise handled in minimal amounts in the ordinary course of
business in substantial compliance with all applicable Environmental
Requirements.
(c) Each Borrower represents as to itself, and Parent represents as to
each Material Subsidiary which is not a Borrower, that to the best of each
Borrower's and Parent's actual knowledge (without having performed any further
independent inquiry therefor solely in connection with this Agreement), each
Borrower and each of Material Subsidiaries which is not a Borrower is in
compliance in all material respects with all Environmental Requirements in
connection with the operation of the Properties and each Borrower's and each
such Material Subsidiary's respective businesses.
(d) Each Borrower represents as to itself, and the Parent represents as
to each Material Subsidiary which is not a Borrower, that each such Person
maintains reasonable procedures to monitor such Person's compliance with all
Environmental Requirements.
8.15. Capital Stock. All Capital Stock, debentures, bonds, notes and
all other securities of each Borrower and the Material Subsidiaries presently
issued and outstanding are validly and properly issued in accordance with all
applicable laws in all material respects, including but not limited to, the
"Blue Sky" laws of all applicable states and the federal securities laws. The
issued shares of Capital Stock of the Wholly Owned Subsidiaries are owned by the
Parent free and clear of any Lien or adverse claim, except for (a) nominal
shares of Subsidiaries which are not U.S. Persons that are held by non-U.S.
Persons in accordance with applicable law, (b) directors, qualifying shares, and
(c) the shares of American Dynamics, a New Jersey corporation, which are pledged
to the sellers thereof to secure payment of the purchase price thereof. At least
a majority of the issued shares of capital stock of each of the Parent's other
Subsidiaries (other than Wholly Owned Subsidiaries) is owned by Parent free and
clear of any Lien or adverse claim.
8.16. Margin Stock. Neither any Borrower nor any Material Subsidiary is
engaged principally, or as one of its important activities, in the business of
purchasing or carrying any Margin Stock, and no part of the proceeds of any Loan
will be used to purchase or carry any Margin Stock or to extend credit to others
for the purpose of purchasing or carrying any Margin Stock, or be used for any
purpose which violates, or which is inconsistent with, the provisions of
Regulations U and X of the Board of Governors of the Federal Reserve System.
8.17. Insolvency. After giving effect to the execution and delivery of
the Loan Documents and the making of the Loans to such Borrower under this
Agreement, no Borrower which is a U.S. Person will be "insolvent," within the
meaning of such term as used in any state fraudulent transfer law or as defined
in Section 101 of Title 11 of the United States
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Code, as amended from time to time, or be unable to pay its debts generally as
such debts become due, or have an unreasonably small capital to engage in any
business or transaction, whether current or contemplated.
8.18. Governmental Approvals. The execution, delivery and performance
by the Borrowers of this Credit Agreement and the other Loan Documents to which
such Borrower is or is to become a party and the transactions contemplated
hereby and thereby (including, but not limited to the making by the Borrowers of
the borrowings contemplated by this Credit Agreement) do not require the
approval, consent, order, authorization or license by, or giving notice to, or
taking any other action with respect to, any governmental agency or authority of
any jurisdiction, or other fiscal, monetary or other authority, under any
provisions of any laws or governmental rules, regulations, order or decrees of
any jurisdiction or the central bank of any jurisdiction or other fiscal
monetary or other authority, under any provisions of any laws or governmental
rules, regulations, orders or decrees of any jurisdiction applicable to and
binding on such Borrower other than those already obtained or, to the extent the
Borrower is not required to have obtained such approvals, consents, orders,
authorizations or licenses prior to the Closing Date or prior to the borrowing
of the relevant Loan or issuance of the relevant Letter of Credit, but will be
required to obtain such items at a later date, are obtainable and such Borrower
will have used its best efforts to obtain the same when required, unless the
failure to obtain such approvals, consents, orders, authorizations or licences
could not reasonably be expected to have a Material Adverse Effect.
8.19. No Filing, Recording Required. No filing, recording or enrolling
of this Credit Agreement or any other Loan Document is required to ensure the
legality, validity, enforceability or admissibility in evidence of this Credit
Agreement or any other Loan Documents in which a Foreign Borrower is organized,
unless such requirements have been complied with by the applicable Borrower to
the extent that such requirements are required to be complied with prior to the
commencement of judicial proceedings or unless the failure to so comply could
not reasonably be expected to have a Material Adverse Effect.
9. AFFIRMATIVE COVENANTS OF THE BORROWER.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Bank has any obligation to make any Loans or the Agent has any obligation to
issue, extend or renew any Letters of Credit:
9.1. Punctual Payment. Each of the Borrowers will duly and punctually
pay or cause to be paid the principal and interest on the Loans, all
Reimbursement Obligations and the Letter of Credit Fees incurred by such
Borrower and the Parent will duly and punctually pay or cause to be paid, the
facility fees, the Agent's fee and all other amounts provided for in this Credit
Agreement and the other Loan Documents to which the Parent or any of its
Subsidiaries is a party, all in accordance with the terms of this Credit
Agreement and such other Loan Documents.
9.2. Maintenance of Office. The Parent will maintain its chief
executive office in Boca Raton, Florida, or at such other place in the United
States of America as the Parent shall designate upon written notice to the
Agent, where notices, presentations and demands to or upon the Borrowers in
respect of the Loan Documents to which any of the Borrowers is a party may be
given or made.
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9.3. Records and Accounts. The Parent will keep, and will cause each
Subsidiary to keep, at all times proper books of record and account in which
full, true and correct entries will be made of all dealings or transactions
relating to the business and affairs of the Parent or such Subsidiary in order
to permit preparation of consolidated financial statements in accordance with
generally accepted accounting principles (except for the application of
non-United States accounting principles and practices to the financial
statements of certain non-United States Subsidiaries, to the extent that such
application does not prevent the Parent from preparing consolidated financial
statements in accordance with generally accepted accounting principles), and the
Parent will, and will cause each Subsidiary to, provide reasonable protection
against loss or damage to such books of record and account.
9.4. Information. The Borrowers will deliver to each of the Banks:
(a) as soon as available and in any event within 120 days
after the end of each Fiscal Year, a consolidated balance sheet of the
Parent and its Consolidated Subsidiaries as of the end of such Fiscal
Year and the related consolidated statements of income, shareholders'
equity and cash flows for such Fiscal Year, setting forth in each case
in comparative form the figures for the previous Fiscal Year, and
accompanied by a report, unqualified as to scope of audit and
unqualified as to going concern as to the consolidated balance sheet
and the related consolidated statements of income and cash flows by
Ernst & Young LLP, or any other firm of independent public accountants
of recognized national standing selected by the Parent, as to fairness
and consistency; provided, that the information required by this
paragraph may be satisfied by delivery of information pursuant to
paragraph (f) or (g) of this Section 9.4;
(b) as soon as available and in any event within sixty (60)
days after the end of each of the first three (3) Fiscal Quarters of
each Fiscal Year, a consolidated balance sheet of the Parent and its
Consolidated Subsidiaries as of the end of such Fiscal Quarter and the
related statement of income and statement of cash flows for such Fiscal
Quarter and for the portion of the Fiscal Year ended at the end of such
Fiscal Quarter, setting forth in each case in comparative form the
figures for the corresponding Fiscal Quarter and the corresponding
portion of the previous Fiscal Year, and a statement detailing the
aggregate principal amount outstanding of all advances against Trade
Receivables sold or factored by the Parent or any of its Subsidiaries
as at the end of such fiscal quarter, all certified by a senior
financial or accounting officer or the chief financial officer or the
Treasurer of Parent (i) outlining the basis of presentation, and (ii)
stating that the unaudited financial information presented in such
financial statements reflects all adjustments consisting only of normal
recurring accruals necessary for a fair presentation of the
consolidated financial condition of the Parent and its Subsidiaries as
of such dates and the consolidated results of their operations and
changes in their cash flows for the periods then ended, except that
such financial statements omit certain footnotes and are subject to
normal year-end adjustments; provided, that the information required by
this paragraph may be satisfied by delivery of information pursuant to
paragraph (f) or (g) of this Section 9.4;
(c) simultaneously with the delivery of each set of financial
statements referred to in paragraphs (a) and (b) above, a certificate,
substantially in the form of Exhibit I (a "Compliance Certificate"), of
a senior financial or accounting officer or the chief financial
accounting officer or the Treasurer of the Parent (i) stating whether
the Parent was in compliance the requirements of Sections 10.1-10.5,
Section 10.14 and 11,
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inclusive, on the date of such financial statements and attaching a
true, accurate and complete copy of the compliance certificate
furnished on or about the date thereof pursuant to the Note Agreement
(1996), (ii) stating whether, to such person's knowledge, after due
inquiry, any Default or Event of Default exists on the date of such
certificate and, if such officer is aware that any Default or Event of
Default then exists, setting forth the details thereof and the action
which the Parent is making or proposes to take with respect thereto and
(iii) setting forth in reasonable detail an itemized accounting of all
consolidated Debt and Factored Receivables Obligations of the Parent
and its Subsidiaries;
(d) simultaneously with the delivery of each set of annual
financial statements referred to in paragraph (a) above, a statement of
the firm of independent public accountants which reported on such
statements to the effect that nothing has come to their attention to
cause them to believe that any Default or Event of Default the
occurrence of which is ascertainable by accountants in the course of
normal audit procedures under any of Sections 10 and 11, inclusive,
existed on the date of such financial statements, or, if they obtained
knowledge of any Default or Event of Default, describing the nature
thereof and the length of time such Default or Event of Default
existed;
(e) (i) promptly, and, in any event, within seven (7) Business
Days after any Borrower becomes aware of the occurrence of any Default
pertaining to the Parent, and (ii) within fifteen (15) Business Days
after any Borrower becomes aware of any other Default or Event of
Default, a certificate of a senior financial or accounting officer or
the chief financial officer or the chief accounting officer or the
Treasurer of the Parent setting forth the details thereof and the
action which the Parent is taking or proposes to take with respect
thereto;
(f) promptly upon the mailing thereof to the shareholders of
the Parent generally, copies of all financial statements, reports and
proxy statements so mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any
registration statements on Form S-8 or its equivalent or any
registration statements relating to employee benefit plans) and annual,
quarterly or monthly reports which the Parent shall have filed with the
Securities and Exchange Commission (other than exhibits thereto);
(h) if and when any member of the Controlled Group (i) gives
or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of
ERISA, or knows that the plan administrator of any Plan has given or is
required to give notice of any such reportable event, a copy of the
notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability
under Title IV of ERISA, a copy of such notice; or (iii) receives
notice from the PBGC under Title IV of ERISA of an intent to terminate
or appoint a trustee to administer any Plan, a copy of such notice; and
(i) from time to time such additional information regarding
the financial position or business of the Parent and the Subsidiaries
as the Agent, at the request of any Bank, may reasonably request.
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9.5. NOTICES.
9.5.1. Environmental Events. The Parent will promptly give
notice to the Agent and each of the Banks (a) of any violation of any
Environmental Requirements that the Parent or any of its Material
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
that has the potential to have a Materially Adverse Effect and (b) upon
becoming aware thereof, of any inquiry, proceeding, investigation, or
other action, including a notice from any agency of potential
environmental liability, of any federal, state or local environmental
agency or board, that has the potential to have a Material Adverse
Effect.
9.5.2. Notice of Litigation and Judgments. The Parent will,
and will cause each of its Subsidiaries to, give notice to the Agent
and each of the Banks in writing within twenty-one (21) days (or such
shorter time by which the Parent notifies the Securities and Exchange
Commission) of becoming aware of any litigation or proceedings
threatened in writing or any pending litigation and proceedings
affecting the Parent or any of its Subsidiaries or to which any
Borrower or any of its Subsidiaries is or becomes a party involving an
uninsured claim against the Parent or any of its Subsidiaries that
could reasonably be expected to have a Material Adverse Effect on the
Parent or any of its Subsidiaries and stating the nature and status of
such litigation or proceedings. The Parent will, and will cause each of
its Subsidiaries to, give notice to the Agent and each of the Banks, in
writing, in form and detail satisfactory to the Agent, within ten (10)
days of any judgment not covered by insurance, final or otherwise,
against any Borrower or any of its Subsidiaries in an amount in excess
of $10,000,000.
9.5.3. Notice of Cancellation of Factoring Arrangements. The
Parent will, and will cause each of its Subsidiaries to, give notice to
the Agent and each of the Banks in writing within five (5) Business
Days of becoming aware of any cancellation or other termination event
of any securitization or other factoring arrangements to which the
Parent or any of its Subsidiaries was a party which has any outstanding
advances thereunder on the date of such cancellation or termination.
9.6. Corporate Existence; Maintenance of Properties. Except as
expressly permitted by Section 10, 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 Material Subsidiaries and
will not, and will not cause or permit any of its Material Subsidiaries to,
convert to a limited liability company provided, that the foregoing shall not
prevent the termination of corporate existence or business of any Borrower
other than Parent if: (a) on the date of termination of such Borrower's
corporate existence or business, such Borrower shall have delivered to the
Agent a letter terminating all rights of such Borrower to obtain borrowings
under this Credit Agreement, and has no Loans outstanding under this Credit
Agreement; and (b) in the opinion of the Parent's Board of Directors, such
termination is in the best interests of the Parent, is not disadvantageous to
the Banks and is not otherwise prohibited by this Credit Agreement. It (a) will
cause all of its properties and those of its Material Subsidiaries used or
useful in the conduct of its business or the business of its Material
Subsidiaries to be maintained and kept in good condition, repair and working
order and supplied with all necessary equipment, (b) will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Parent may be necessary so that the
business carried on in connection therewith may be
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properly and advantageously conducted at all times, and (c) will, and will
cause each of its Material Subsidiaries to, continue to engage primarily in the
businesses now conducted by them and in related businesses; provided that
nothing in this Section 9.6 shall prevent the Parent from discontinuing the
operation and maintenance of any of its properties or any of those of its
Material Subsidiaries if such discontinuance is, in the judgment of the Parent,
desirable in the conduct of its or their business and that do not in the
aggregate have a Material Adverse Effect.
9.7. Insurance. The Parent will, and will cause each of its Material
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.
9.8. Taxes. The Parent will, and will cause each of its Material
Subsidiaries to, duly pay and discharge, or cause to be paid and discharged,
before the same shall become overdue, all taxes, assessments and other
governmental charges (including but not limited to any applicable stamp tax but
other than taxes, assessment and other government charges imposed by foreign
jurisdictions that in the aggregate are not material to the business or assets
of any Borrower on an individual basis or of the Parent and its Subsidiaries on
a consolidated basis) imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials, or supplies that if unpaid might by law
become a lien or charge upon any of its property; provided that any such tax,
assessment, charge, levy or claim need not be paid if the validity or amount
thereof shall currently be contested in good faith by appropriate proceedings
and if the Parent or such Material Subsidiary shall have set aside on its books
adequate reserves with respect thereto; and provided further that the Parent and
each Material Subsidiary of the Borrower will pay all such taxes, assessments,
charges, levies or claims forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security therefor.
9.9. Inspection of Properties and Books, etc. The Parent shall permit
the Banks, through the Agent or any of the Banks' other designated
representatives, (a) at the Agent's or such Bank's expense and upon reasonable
notice prior to the occurrence of a Default and (b) at the Parent's expense
after the occurrence and continuation of a Default, to visit and inspect any of
the properties of the Parent or any of its Material Subsidiaries, to examine the
books of account of the Parent and its Material Subsidiaries (and to make copies
thereof and extracts therefrom), and to discuss the affairs, finances and
accounts of the Parent and its Material Subsidiaries with, and to be advised as
to the same by, its and their officers, all at such reasonable times and
intervals as the Agent or any Bank may reasonably request.
9.10. Compliance with Laws, Contracts, Licenses, and Permits. The
Parent will, and will cause each of its Material Subsidiaries to, comply with
(a) the applicable laws and regulations wherever its business is conducted,
including all Environmental Requirements, except where the failure to so comply
could not reasonably be expected to have a Material Adverse Effect, unless the
Parent or the applicable Subsidiary is contesting such laws or regulations in
good faith and has maintained adequate reserves on its books in accordance with
generally accepted accounting principles applicable thereto (b) the provisions
of its charter documents and by-laws, (c) all agreements and instruments by
which it or any of its properties may be bound except where the failure to so
comply could not reasonably be expected to have a Material Adverse Effect or
where the Parent or the applicable Subsidiary
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is contesting such compliance in good faith and has maintained adequate reserves
on its books in accordance with generally accepted accounting principles
applicable thereto and (d) all applicable decrees, orders, and judgments except
where the failure to so comply could not reasonably be expected to have a
Material Adverse Effect or where the Parent or the applicable Subsidiary is
contesting such decrees, orders or judgments in good faith and has maintained
adequate reserves on its books in accordance with generally accepted accounting
principles. If 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 Parent or any of its Material Subsidiaries may
fulfill any of its obligations hereunder or any of the other Loan Documents to
which the Parent or such Material Subsidiary is a party, the Parent will, or (as
the case may be) will cause such Material Subsidiary to, immediately take or
cause to be taken all reasonable steps within the power of the Parent or such
Material Subsidiary to obtain such authorization, consent, approval, permit or
license and furnish the Agent and the Banks with evidence thereof.
9.11. Employee Benefit Plans. The Parent will (a) promptly upon filing
the same with the Department of Labor or Internal Revenue Service upon request
of the Agent, furnish to the Agent a copy of the most recent actuarial
statement required to be submitted under Section 103(d) of ERISA and Annual
Report, Form 5500, with all required attachments, in respect of each Guaranteed
Pension Plan and (b) promptly upon receipt or dispatch, furnish to the Agent
any notice, report or demand sent or received in respect of a Guaranteed
Pension Plan under Sections 302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of
ERISA, or in respect of a Multiemployer Plan, under Sections 4041A, 4202, 4219,
4242, or 4245 of ERISA.
9.12. Use Of Proceeds. The Borrowers will use the proceeds of the Loans
solely for working capital and general corporate purposes. The Borrowers will
obtain Letters of Credit solely for general corporate purposes.
9.13. Material Subsidiaries. Promptly after the delivery to the Banks
of the financial statements referred to in 9.4(a) and (b), the Parent will
deliver to the Banks a supplement to Schedule 8.8, showing any changes in the
composition of the Material Subsidiaries since the date of the last delivery of
such a notice.
9.14. Further Assistance. The Parent will, and will cause each of its
Subsidiaries to, cooperate with the Banks and the Agent and execute such further
instruments and documents as the Banks or the Agent shall reasonably request to
carry out to their satisfaction the transactions contemplated by this Credit
Agreement and the other Loan Documents.
10. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Bank has any obligation to make any Loans or the Agent has any obligations to
issue, extend or renew any Letters of Credit:
10.1. Debt. The Parent will not, and will not permit any Subsidiary to,
permit to exist, create, assume, incur or otherwise be or become liable for,
directly or indirectly, any Debt other than:
(a) the Notes and the Senior Notes;
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(b) Debt of the Parent and its Subsidiaries existing on the
date hereof and described in the attached Schedule 10.1;
(c) Debt of a Subsidiary owed to the Parent or another
Subsidiary;
(d) Additional Debt, provided that at the time of incurring
such additional Debt and after giving effect thereto and to the
application of the proceeds therefrom, (i) the aggregate principal
amount of all Senior Consolidated Debt then to be outstanding shall not
exceed fifty percent (50%) of Consolidated Total Capitalization and
(ii) the aggregate principal amount of all Consolidated Debt then to be
outstanding shall not exceed fifty-five percent (55%) of Consolidated
Total Capitalization;
(e) Additional Debt of Subsidiaries, provided that at the time
of incurring such additional Debt and after giving effect
thereto and to the application of the proceeds therefrom, (i) such
Debt may be incurred pursuant to paragraph (d) of this Section 10.1
and (ii) the sum (without duplication) of the aggregate principal
amount of outstanding (A) Debt of Subsidiaries (other than Debt
referred to in paragraph (c) of this Section 10.1), and (B) Debt of
the Parent or any Subsidiary (other than Debt referred to in paragraph
(c) of this Section 10.1) secured by Liens permitted by Section 10.2
(other than secured Debt permitted by paragraphs (j) and (m) of
Section 10.2) does not exceed the Applicable Percentage of the maximum
aggregate principal amount of Consolidated Debt permitted to be
outstanding under this Section 10.1; and
(f) Debt of a Person existing at the time it becomes a
Subsidiary, or substantially all of its assets are acquired by the
Parent or a Subsidiary, provided such Debt was not created or incurred
in contemplation of such Person becoming a Subsidiary or such
acquisition and extensions, renewals, refinancing and refundings of
such Debt provided there is no increase in the principal amount of such
Debt at the time thereof.
10.2. Liens.
The Parent will not, and will not permit any Subsidiary to, permit to
exist, create, assume or incur, directly or indirectly, any Lien on its
properties or assets, whether owned or hereafter acquired, except:
(a) Liens existing on property or assets of the Parent or any
Subsidiary as of the date of this Credit Agreement that are described
in the attached Schedule 10.2;
(b) Liens for taxes, assessments, Governmental charges, levies
or claims not then due and delinquent or the validity of which is being
contested in good faith and as to which the Parent has established
adequate reserves on its books in accordance with generally accepted
accounting principles;
(c) Liens arising in connection with court proceedings
provided the execution of such Liens is effectively stayed, such Liens
are being contested in good faith by appropriate proceedings and the
Parent has established adequate reserves therefor on its books in
accordance with generally accepted accounting principles;
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(d) Liens arising in the ordinary course of business or
incidental to the ownership of property or assets and not incurred in
connection with the borrowing of money (including, but not limited to,
encumbrances in the nature of zoning restrictions, easements, rights
and restrictions of record on the use of real property, defects in
title and landlord's, lessor's mechanics' and materialmen's liens) that
in the aggregate do not materially interfere with the conduct of the
business of the Parent and its Subsidiaries taken as a whole or
materially impair the value of the property or assets subject thereto;
(e) Liens in connection with workers' compensation,
unemployment insurance or other social security obligations;
(f) Liens securing the performance of bids, tenders,
contracts, surety and appeal bonds;
(g) Liens to secure progress or partial payments on contracts,
surety and appeal bonds;
(h) Unexercised rights of set-off, bankers' liens and other
rights arising solely by operation of law and not created to secure
Debt;
(i) To the extent considered a Lien on assets of the Parent or
any Subsidiary, Liens arising in connection with the sale of factoring
of leases, receivables or other accounts in the ordinary course of
business;
(j) liens on properties or assets of a Person existing at the
time such Person becomes a Subsidiary or is merged or consolidated with
or into the Parent or any Subsidiary and not created in contemplation
of such event;
(k) to the extent considered a Lien on assets of the Parent or
any Subsidiary, the interest of the lessee or purchaser in assets of
the Parent or any Subsidiary leased to such lessee under a lease or
sold to such purchaser under the terms of a conditional sale
arrangement;
(l) liens securing Debt of a Subsidiary to the Parent or to
another Wholly-Owned Subsidiary;
(m) Liens (i) existing on property at the time of its
acquisition by the Parent or a Subsidiary and not created in
contemplation thereof, provided the Debt secured by such Lien is
assumed by the Parent or a Subsidiary; or (ii) on property created
substantially contemporaneously with the date of acquisition or within
twelve (12) months of the acquisition or completion of construction
thereof to secure or provide for all or a portion of the purchase price
or cost of construction of such property; provided in the case
of clauses (i) and (ii) that such Liens do not extend to other
property of the Parent or any Subsidiary, that the aggregate principal
amount of Debt secured by each such Lien does not exceed 100% of the
lesser of the cost or fair market value at the time of acquisition of
the property or completion of construction subject thereto and that
the Debt secured by such Liens could be incurred pursuant to Section
10.1; and
(n) Liens not otherwise permitted by paragraphs (a) through
(m) above incurred subsequent to the Note Agreement Closing Date to
secure Debt, provided
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that at the time of incurring such additional Debt and after
giving effect thereto and to the application of the proceeds
therefrom, (i) such Debt can be incurred pursuant to Section 10.1(d)
and, if of a Subsidiary, Section 10.1(e) , and (ii) the sum (without
duplication) of the aggregate principal amount of outstanding (A) Debt
of Subsidiaries (other than Debt referred to in paragraph (c) of
Section 10.1) and (B) Debt of the Parent or any Subsidiary (other than
Debt referred to in paragraph (c) of Section 10.1) secured by Liens
permitted by this Section 10.2 (other than secured Debt permitted by
paragraphs (j) and (m) above) does not exceed twenty percent (20%) of
the maximum aggregate principal amount of Consolidated Debt permitted
to be outstanding under Section 10.1.
10.3 Restricted Payments. The Parent will not, except as hereinafter
provided:
(a) declare or pay any dividends, either in cash or property,
on any shares of its capital stock of any class (except dividends or
other distributions payable solely in shares of common stock of the
Parent);
(b) directly or indirectly, or through any Subsidiary,
purchase, redeem, retire or otherwise acquire any shares of its capital
stock of any class or any warrants, rights or options to purchase or
acquire any shares of its capital stock;
(c) make any other payment or distribution, either directly or
indirectly, or through any Subsidiary, in respect of its capital stock;
or
(d) make any payment (which shall not be deemed to include a
conversion), other than a scheduled mandatory prepayment or payment, on
any Subordinated Consolidated Debt;
(all such nonpermitted declarations, payments, purchases, redemptions,
retirements, acquisitions or distributions being hereinafter referred to as
"Restricted Payments") unless, after giving effect thereto, (i) the aggregate
amount of Restricted Payments made after December 31, 1992 to and including the
date of making the Restricted Payment in questions would not exceed the sum of:
(w) $25,000,000; (x) fifty percent (50%) of Consolidated Net Income for the
period from January 1, 1993 to June 30, 1993 (less 100%; thereof in case of a
deficit); (y) fifty percent (50%) of Cumulative Consolidated Net Income for each
Fiscal Year ending after June 30, 1993 (less 100% thereof in case of a deficit);
and (z) the net cash proceeds received by the Parent from the sale of common
stock subsequent to the Closing Date or the net cash proceeds received by the
Parent from the sale of securities convertible into common stock of the Parent
upon conversion thereof subsequent to the Closing Date; (ii) no Default or Event
of Default would exist; and (iii) the Parent could incur at least $1.00 of
additional Debt under Section 10.1.
10.4. Merger or Consolidation. The Parent will not, and will not permit
any Subsidiary to, merge or consolidate with, or sell all or substantially all
of its assets to, any Person, except that:
(a) The Parent may merge into or consolidate with, or sell all
or substantially all of its assets to, any Person or permit any Person
to merge into it, provided that immediately after giving effect
thereto,
(i) The Parent is the successor corporation;
(ii) There shall exist no Default or Event of
Default; and
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(iii) The Parent could incur at least $1.00 of
additional Debt under Section 10.1; and
(b) So long as no Default or Event of Default has occurred and
is continuing, any Subsidiary may merge with any other Person,
provided, however, if such Person is not the Parent or another
Borrowing Subsidiary, and such Subsidiary is a Borrower, all
Obligations of such Subsidiary to the Agent and the Banks shall be
indefeasibly repaid in full in cash and such Subsidiary shall cease
being a Borrower hereunder prior to giving effect to such merger.
10.5. Sale of Assets.
(a) The Parent will not, and will not permit any Subsidiary
to, (other than in the ordinary course of business, including sales of
receivables, leases and rental equipment, and other than as permitted
by clause (ii) of Section 10.4(b)), sell lease, transfer or otherwise
(including by way of merger) dispose of (collectively a "Disposition")
any assets, including capital stock of Subsidiaries, in one or a series
of transactions, to any Person, (i) if in any Fiscal Year, after giving
effect to such Disposition, the aggregate net book value of assets
subject to Dispositions during such Fiscal Year would exceed fifteen
percent (15%) of Consolidated Total Assets as of the immediately
preceding Fiscal Year or (ii) if, after giving effect to such
Disposition and all prior Dispositions since the Note Agreement Closing
Date, the aggregate net book value of assets subject to Dispositions
would exceed, on a cumulative basis, thirty percent (30%) of
Consolidated Total Assets as of the end of the immediately preceding
Fiscal Year or (iii) if a Default or Event of Default exists or (iv) if
the Parent cannot incur at least $1.00 of additional Debt pursuant to
Section 10.1.
(b) Notwithstanding the foregoing limitations in paragraph (a)
of this Section 10.5, the Parent or a Subsidiary may make a
Disposition and the net book value of the assets subject to such
Disposition and shall not be subject to or included in the foregoing
limitations and computations (i) if the proceeds (net of taxes and
related expenses) from such Disposition are either (A) reinvested,
within twelve months after such Disposition, in productive assets of
the Parent or its Subsidiaries (including capital stock of
Subsidiaries other than Wholly-Owned Subsidiaries) or (B) the Parent,
by written notice mailed to each holder of outstanding Senior
Consolidated Debt not less than thirty (30) days prior to the date
fixed by the Parent for the prepayment or purchase referred to below
(which notice shall state that it is given pursuant to this Section
10.5 and that any holder that elects to accept such offer must do so
by notice given to Parent not less than ten (10) days prior to such
date of prepayment or purchase) shall have offered, pursuant to a
pro-rata offer made concurrently to all holders of then outstanding
Senior Consolidated Debt, to apply an amount equal to such proceeds to
the prepayment or purchase, on the date specified in such notice
(which date shall be not later than thirty (30) days following such
Disposition) of Senior Consolidated Debt (at a prepayment or purchase
price equal to the principal amount thereof and accrued interest
thereon to the date of such prepayment or purchase) or (ii) if such
Disposition is of assets of a Subsidiary within twelve (12) months of
the date of such Disposition and the proceeds (net of taxes and
related expenses) from such Disposition are applied contemporaneously
to the repayment of Debt associated therewith or (iii) if such
Disposition is to the Parent or a Wholly-Owned Subsidiary.
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10.6. Environmental Matters. The Borrowers will not, and will not
knowingly permit any Third Party to, use, produce, manufacture, process, treat,
recycle, generate, store, dispose of, manage at, or otherwise handle, or ship or
transport to or from the Properties any Hazardous Materials except for Hazardous
Materials such as cleaning solvents, pesticides and other similar materials
used, produced, manufactured, processed, treated, recycled, generated, stored,
disposed, managed, or otherwise handled in minimal amounts in the ordinary
course of business or of management or maintenance of the Properties in material
compliance with all applicable Environmental Requirements.
10.7. Environmental Release. Each Borrower agrees that upon its
becoming aware of the occurrence of an Environmental Release, except for any
Environmental Release which occurred in substantial compliance with all
Environmental Requirements, at or on any of the Properties owned or operated by
it will act promptly to determine the extent of, and to take appropriate
remedial action to eliminate, any such Environmental directed to do so by any
Environmental Authority, except to the extent that failure to take remedial
action would not have a Material Adverse Effect.
10.8. Transactions with Affiliates. Neither any Borrower nor any of the
Subsidiaries shall enter into, or be a party to any transaction with any
Affiliate of any of the Borrowers or any Subsidiary (which Affiliate is not a
Borrower or a Subsidiary, other than a Person in which such Borrower or
Subsidiary owns less than a majority interest and which, if it were a
Subsidiary, would not be a Material Subsidiary), except as permitted by law and
in the ordinary course of business and pursuant to reasonable terms which are no
less favorable to such Borrower or such Subsidiary than would be obtained in a
comparable arm's length transaction with a Person which is not an Affiliate;
provided, that the foregoing shall not affect the ability of the Parent, any
other Borrower or any Subsidiary from determining, in its sole discretion, the
amount or form of executive or directors compensation from time to time.
10.9. Sale and Leaseback. The Parent will not, and will not permit any
of its Subsidiaries to, enter into any arrangement, directly or indirectly,
whereby the Parent or any Subsidiary of the Parent shall sell or transfer any
property owned by it in order then or thereafter to lease such property or lease
other property that the Parent or any Subsidiary of the Parent intends to use
for substantially the same purpose as the property being sold or transferred.
10.10. Subordinated Debt and Senior Notes. The Parent will not, and
will not permit any of its Subsidiaries to, amend, supplement or otherwise
modify the terms of any of the Subordinated Consolidated Debt or Senior Notes or
voluntarily prepay, redeem or repurchase any of the Subordinated Consolidated
Debt or Senior Notes; provided, however, (a) the Parent or such Subsidiary may
amend, supplement or otherwise modify the terms of any of the Subordinated
Consolidated Debt or Senior Notes if after giving effect to such amendment,
supplement or modification, the terms of such Subordinated Consolidated Debt or
Senior Notes are no less favorable to the Parent, such Subsidiary or the Banks
than the terms of such Debt prior to such modification and, as to the
Subordinated Consolidated Debt, such amendment, supplement or modification does
not affect the subordination provisions in any manner which is materially
adverse to the Agent or any of the Banks; and (b) the Parent or any of its
Subsidiaries shall be permitted to convert such Debt into equity (and make any
necessary cash payments associated with such conversion for fractional shares)
or refinance such Subordinated Consolidated Debt or Senior Notes with other Debt
so long as (i) in the case of a refinancing of Subordinated Consolidated Debt or
the Senior Notes, no Default or Event of Default has occurred and is continuing
or would exist as a
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result thereof and (ii) the terms and conditions of such Debt (including,
without limitation, the principal amount of such Debt, the interest rate, the
maturity, covenants and defaults) are no less favorable to the Parent or such
Subsidiary as the terms and conditions contained in the Debt being refinanced;
and provided, further, the Parent or such Subsidiary shall be permitted to make
prepayments on such Subordinated Consolidated Debt or Senior Notes to the extent
such Person is contractually obligated to make or offer to make such prepayments
as a result of a Change in Control or similar event.
10.11. Employee Benefit Plans. Neither the Parent nor any ERISA
Affiliate will
(a) engage in any "prohibited transaction" within the meaning
of Section 406 of ERISA or Section 4975 of the Code which could result
in a material liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in Section
302 of ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of the Borrower or any of its Subsidiaries pursuant to Section
302(f) or Section 4068 of ERISA; or
(d) permit or take any action which would result in the
aggregate benefit liabilities (with the meaning of Section 4001 of
ERISA) of all Guaranteed Pension Plans exceeding the value of the
aggregate assets of such Plans, disregarding for this purpose the
benefit liabilities and assets of any such Plan with assets in excess
of benefit liabilities.
10.12. Dissolution. Neither any Borrower nor any Material Subsidiary
shall be permitted to be dissolved or liquidated, except through corporate
reorganization to the extent permitted by Section 10.4; provided, that any
Borrower other than Parent, and any Material Subsidiary, may be dissolved if:
(a) on the date of liquidation or dissolution of such Borrower, such Borrower
shall have delivered to the Agent a letter terminating all rights of such
Borrower to obtain borrowings under this Credit Agreement, and has no Loans
outstanding under this Credit Agreement; and (b) in the opinion of the Parent's
Board of Directors, such dissolution is in the best interests of the Parent, is
not disadvantageous to the Banks and is not otherwise prohibited by this Credit
Agreement.
10.13. Use of Proceeds. No portion of the proceeds of the Loans will be
used by any Borrower (a) in connection with, whether directly or indirectly, any
tender offer for, or other acquisition of, stock of any corporation with a view
towards obtaining control of such other corporation, except in a negotiated,
consensual transaction, (b) directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of purchasing or carrying any Margin Stock,
or (c) for any purpose in violation of any applicable law or regulation.
10.14. Restrictions on Investments. The Parent will not and will not
permit any of the other Borrowing Subsidiaries, directly or indirectly through
one or more Subsidiaries, to made additional cash Investments after the date of
this Credit Agreement in its Subsidiaries, whether in the form of intercompany
debt or in the form of contributions to the stockholder's equity of such
Subsidiaries, except to the extent that the aggregate net increase in such
intercompany Debt and stockholder's equity after the date hereof as a result of
such cash
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Investments does not exceed (a) for the period from the date hereof to and
including September 30, 1997, an amount equal to the sum of (i) $125,000,000
plus (ii) the aggregate amount of all cash dividends paid by the Subsidiares and
received by the Parent or such Borrowing Subsidiary, as the case may be, during
such period, and (b) for all periods after September 30, 1997, an amount equal
to the sum of (i) the maximum amount permitted in clause (a) above less
$50,000,000, plus (ii) the aggregate amount of all cash dividends paid by the
Subsidiaries and received by the Parent or such Borrowing Subsidiary, as the
case may be, after September 30, 1997.
11. FINANCIAL COVENANTS OF THE BORROWERS.
Each of the Borrowers covenants and agrees that, so long as any Loan,
Unpaid Reimbursement Obligation, Letter of Credit or Note is outstanding or any
Bank has any obligation to make any Loans or the Agent has any obligation to
issue, extend or renew any Letters of Credit:
11.1. Net Worth. The Parent will not permit at any time its
Consolidated Net Worth to be less than $730,000,000 plus (a) fifty (50%) of
Consolidated Net Income (without reduction for any net losses) for the period
from April 1, 1996 to June 30, 1996, plus (b) the cumulative sum of fifty
percent (50%) of Consolidated Net Income (without reduction for any net losses)
for each completed fiscal year ending after June 30, 1996 and on or before the
date 120 days prior to the date of determination, plus (c) for the then current
fiscal year, the cumulative sum of fifty percent (50%) of Consolidated Net
Income (without reduction for any net losses) from the beginning of such year
to the last day of the Fiscal Quarter of the Parent most recently ended as of
the date sixty (60) days prior to the date of determination. For purposes of
calculating compliance with this Section 11.1, the Parent will include as a
debit (without duplication of any amounts which already may be reflected in the
financial statements of the Parent or its Subsidiaries with respect to such
amounts) the Net Cash Amount of any judgment or settlement in respect of any
litigation described in Form 10-K, Form 10-Q or Form K (as defined in Section
8.4(b) hereof) or any other actions, suits or proceedings based primarily on
allegations similar to those contained in such proceedings, in the case of a
judgment, upon the entry of such judgment by the court (unless such judgment is
being appealed and execution of such judgment is stayed) and, in the case of a
settlement, upon the approval of such settlement by the court (or, if such
settlement is not to be approved by the court, upon payment of such
settlement).
11.2. Senior Debt/Total Capitalization. The Parent will not permit at
any time the principal amount of all Senior Consolidated Debt then outstanding
to exceed fifty percent (50%) of Consolidated Total Capitalization at such time.
11.3. Total Indebtedness/Total Capitalization. The Parent will not
permit at any time the aggregate principal amount of all Consolidated Debt then
outstanding to exceed fifty-five percent (55%) of Consolidated Total
Capitalization at such time.
12. CLOSING CONDITIONS.
The obligations of the Banks to make the initial Revolving Credit Loans
and of the Agent to issue any initial Letters of Credit shall be subject to the
satisfaction of the following conditions precedent:
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12.1. 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.
12.2. Certified Copies of Charter Documents. Each of the Banks shall
have received from the Parent and each other Borrower 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.
12.3. Corporate Action. All corporate action necessary for the valid
execution, delivery and performance by the Parent and each other Borrower 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.
12.4. Incumbency Certificate. Each of the Banks shall have received
from the Parent and each other Borrower an incumbency certificate, dated as of
the Closing Date, signed by a duly authorized officer of the Parent or such
Borrower, and giving the name and bearing a specimen signature of each
individual who shall be authorized: (a) to sign, in the name and on behalf of
each of the Parent of such Borrower, each of the Loan Documents to which the
Parent or such Borrower is or is to become a party; (b) to make Loan Requests,
Conversion Requests, Competitive Bid Requests and to apply for Letters of
Credit; and (c) to give notices and to take other action on its behalf under the
Loan Documents.
12.5. UCC Search Results. The Agent shall have received from each of
the Parent and each of the Borrower the results of UCC searches, indicating no
liens other than Permitted Liens and otherwise in form and substance
satisfactory to the Agent.
12.6. Certificates of Insurance. The Agent shall have received a
certificate of insurance from an independent insurance broker dated as of the
Closing Date, identifying insurers, types of insurance, insurance limits, and
policy terms, and otherwise describing the insurance carried by the Parent and
its Subsidiaries.
12.7. Solvency Certificate. Each of the Banks shall have received an
officer's certificate of the Parent dated as of the Closing Date as to the
solvency of the Parent and its Subsidiaries following the consummation of the
transactions contemplated herein and in form and substance satisfactory to the
Banks.
12.8. Opinion of Counsel. Each of the Banks and the Agent shall have
received a favorable legal opinion addressed to the Banks and the Agent, dated
as of the Closing Date, in form and substance satisfactory to the Banks and the
Agent, from:
(a) Christy & Viener, counsel to the Parent and its Subsidiaries; and
(b) In-house counsel to the Parent and its Subsidiaries as applicable.
12.9. Payment of Fees. The Borrower shall have paid to the Banks or the
Agent, as appropriate, the fees required to be paid pursuant to Sections 7.1 and
7.2.
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13. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan, including the initial
Revolving Credit Loan, and of the Agent to issue, extend or renew any Letter of
Credit, in each case whether on or after the Closing Date, shall also be subject
to the satisfaction of the following conditions precedent:
13.1. Representations True; No Event of Default. Each of the
representations and warranties of any of the Parent and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be true at and as of the time of the making of such Loan or the issuance,
extension or renewal of such Letter of Credit, with the same effect as if made
at and as of that time (except 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.
13.2. No Legal Impediment. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Agent would make it illegal for the Agent to
issue, extend or renew such Letter of Credit.
13.3. Governmental Regulation. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall reasonably 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.
14. EVENTS OF DEFAULT; ACCELERATION; ETC.
14.1. 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 Borrowers shall fail to pay any principal of the Loans
or any Reimbursement Obligation 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 Borrowers shall fail to pay any interest on the Loans,
the facility fee, any Letter of Credit Fee, the Agent's fee, or other
sums due hereunder or under any of the other Loan Documents, within
three (3) Business 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 Borrowers shall fail to comply with any of its
covenants contained in Sections 9.4(e), 9.6 as it pertains to the
corporate existence of the Parent), 9.9, 9.12, 10.1-10.5, 10.14 and
Section 11;
(d) the Parent or any of its Subsidiaries shall fail to
perform any term, covenant or agreement contained in Section 9.4(a)-
(d), (f) and (g) for twenty (20) days after written notice of such
failure has been given to the Parent by the Agent or the Parent or any
of its Subsidiaries shall fail to perform any term, covenant or
agreement
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contained herein or in any of the other Loan Documents (other than
those specified elsewhere in this Section 14.1) for thirty (30) days
after written notice of such failure has been given to the Parent by
the Agent;
(e) any representation or warranty of the Parent or any of its
Subsidiaries in this Credit Agreement or any of the other Loan
Documents or in any other document or instrument delivered pursuant to
or in connection with this Credit Agreement shall prove to have been
false in any material respect upon the date when made or deemed to have
been made or repeated;
(f) any Borrower or any Material Subsidiary shall fail to make
any payment in respect of Debt outstanding in an aggregate principal
amount equal to or greater than $10,000,000 (other than the Notes)
after the expiry of any applicable grace period; or
(g) the Parent or any of its Material Subsidiaries shall make
an assignment for the benefit of creditors, or admit in writing its
inability to pay or generally fail to pay its debts as they mature or
become due, or shall petition or apply for the appointment of a trustee
or other custodian, liquidator or receiver of the Parent or any of its
Material Subsidiaries or of any substantial part of the assets of the
Parent or any of its Material Subsidiaries or shall commence any case
or other proceeding relating to the Parent or any of its Material
Subsidiaries under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation or similar
law of any jurisdiction, now or hereafter in effect, or shall take any
action to authorize or in furtherance of any of the foregoing, or if
any such petition or application shall be filed or any such case or
other proceeding shall be commenced against the Parent or any of its
Material Subsidiaries and the Parent or any of its Material
Subsidiaries shall indicate its approval thereof, consent thereto or
acquiescence therein or such petition or application shall not have
been dismissed within sixty (60) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Parent or any of
its Material Subsidiaries bankrupt or insolvent, or approving a
petition in any such case or other proceeding, or a decree or order for
relief is entered in respect of the Parent or any Material Subsidiary
of the Parent 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
judgment against the Parent or any of its Material Subsidiaries that,
with other outstanding final judgments, undischarged, against the
Parent or any of its Material Subsidiaries exceeds in the aggregate
$10,000,000;
(j) any event or condition (other than a Change in Control or
similar event as provided for any loan agreement or other Debt
instrument or agreement for the securitization or other sale of Term
Receivables or Trade Receivables) shall occur which (i) has resulted in
the acceleration of the maturity of Debt outstanding of any Borrower or
any Material Subsidiary in an aggregate principal amount equal to or
greater than $10,000,000 (including, without limitation, any required
mandatory prepayment or "put" of such Debt to any Borrower or any
Material Subsidiary) or which resulted in the involuntary termination
of commitments to purchase
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receivables under any agreement for the securitization or other sale of
receivables of any Borrower or any Material Subsidiary in an aggregate
facility amount in excess of $10,000,000 other than a termination under
any agreement to purchase Term Receivables where (1) such termination
was not as a result of any default or event of default on behalf of the
Parent or any Material Subsidiary, as the case may be or (2) the
recourse to the Parent or such Material Subsidiary associated with all
such terminations is not in excess of $5,000,000 in the aggregate for
any period consisting of twelve (12) consecutive calendar months (or
such shorter number of months as has elapsed from the Closing Date)
from the date of such termination (a "Term Receivables Event") or (ii)
enables (and any required notice of default or termination, as the case
may be, has been given and any applicable cure or grace period has
expired) the holders of such Debt or the purchasers of such
receivables, as the case may be, or any Person acting on such holders'
or purchasers' behalf to accelerate the maturity thereof or to
terminate the commitments to purchase under such securitization
facility (including, without limitation, any required mandatory
prepayment or "put" of such Debt to any Borrower or any Material
Subsidiary), other than a Term Receivables Event or a termination of
the commitment on the maturity thereof as set forth in such facility or
the termination of the commitment by the Borrower or any Material
Subisidary, as the case may be, at its option provided that at the time
of such optional termination no default or event of default has
occurred and is continuing under such facility, including, without
limitation, any default or similar event which, after the lapse of the
grace periods provided for therein would permit the Purchaser to
terminate or cancel such facility;
(k) if any of the Loan Documents shall be cancelled,
terminated, revoked or rescinded, in each case otherwise than in
accordance with the terms thereof or with the express prior written
agreement, consent or approval of the Banks, or any action at law, suit
or in equity or other legal proceeding to cancel, revoke or rescind any
of the Loan Documents shall be commenced by or on behalf of the Parent
or any of its Subsidiaries party thereto or any of their respective
stockholders, or any court or any other governmental or regulatory
authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan Documents is illegal, invalid
or unenforceable in accordance with the terms thereof;
(l) with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall have
determined in their reasonable discretion that such event reasonably
could be expected to result in liability of the Borrower or any of its
Subsidiaries to the PBGC or such Guaranteed Pension Plan in an
aggregate amount exceeding $10,000,000 and such event in the
circumstances occurring reasonably could constitute grounds for the
termination of such Guaranteed Pension Plan by the PBGC or for the
appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan; or a trustee shall
have been appointed by the United States District Court to administer
such Plan; or the PBGC shall have instituted proceedings to terminate
such Guaranteed Pension Plan; and
(m) the Parent or any of its Material 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 and such injunction,
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restraint or prevention could reasonably be expected to have a Material
Adverse Effect.
then, and in any such event, so long as the same may be continuing, the Agent
may with the consent of the Majority Banks, and upon the request of the Majority
Banks shall, by notice in writing to the Parent declare all amounts owing with
respect to this Credit Agreement, the Notes and the other Loan Documents and all
Reimbursement Obligations to be, and they shall thereupon forthwith become,
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by the Parent; provided
that in the event of any Event of Default specified in Sections 14.1(g) or
14.1(h), all such amounts shall become immediately due and payable
automatically and without any requirement of notice from the Agent or any Bank.
14.2. Termination of Commitments. If any one or more of the Events of
Default specified in Section 14.1(g) or Section 14.1(h) shall occur, any unused
portion of the Commitments hereunder shall forthwith terminate and each of the
Banks shall be relieved of all further obligations to make Loans to any
Borrower and the Agent shall be relieved of all further obligations to issue,
extend or renew Letters of Credit. If any other Event of Default shall have
occurred and be continuing, the Agent may with the consent of the Majority
Banks and, upon the request of the Majority Banks, shall, by notice to the
Parent, terminate the unused portion of the credit hereunder, and upon such
notice being given such unused portion of the credit hereunder shall terminate
immediately and each of the Banks shall be relieved of all further obligations
to make Loans and the Agent shall be relieved of all further obligations to
issue, extend or renew Letters of Credit. No termination of the credit
hereunder shall relieve the Parent or any of its Subsidiaries of any of the
Obligations.
14.3. Remedies. In case any one or more of the Events of Default shall
have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans pursuant to Section 14.1, each Bank, if
owed any amount with respect to the Loans or the Reimbursement Obligations, may
proceed to protect and enforce its rights by suit in equity, action at law or
other appropriate proceeding, whether for the specific performance of any
covenant or agreement contained in this Credit Agreement and the other Loan
Documents or any instrument pursuant to which the Obligations to such Bank are
evidenced, including as permitted by applicable law the obtaining of the ex
parte appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Bank. No remedy herein conferred upon any Bank
or the Agent or the holder of any Note or purchaser of any Letter of Credit
Participation is intended to be exclusive of any other remedy and each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity or by statute
or any other provision of law.
14.4. Distribution of Proceeds. In the event that, following the
occurrence or during the continuance of any Default or Event of Default, the
Agent or any Bank, as the case may be, receives any monies in connection with
the enforcement of any the Loan Documents, or otherwise with respect to the
realization upon any collateral, such monies shall be distributed for
application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agent in connection with the collection of such monies
by the Agent, for the exercise, protection or enforcement by
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the Agent of all or any of the rights, remedies, powers and privileges
of the Agent under this Credit Agreement or any of the other Loan
Documents or in respect of the collateral or in support of any
provision of adequate indemnity to the Agent against any taxes or liens
which by law shall have, or may have, priority over the rights of the
Agent to such monies;
(b) Second, to all other Obligations then due in such order or
preference as the Majority Banks may determine; provided, however, that
distributions in respect of such obligations shall be made (i) pari
passu among Obligations with respect to the Agent's fee payable
pursuant to Section 6.2 and all other Obligations and (ii) Obligations
owing to the Banks with respect to each type of Obligation such as
interest, principal, fees and expenses, shall be made among the Banks
pro rata; and provided, further, that the Agent may in its discretion
make proper allowance to take into account any Obligations not then
due and payable;
(c) Third, upon payment and satisfaction in full or other
provisions for payment in full satisfactory to the Banks and the Agent
of all of the Obligations, to the payment of any obligations required
to be paid pursuant to a court order; and
(d) Fourth, the excess, if any, shall be returned to the
Borrowers or to such other Persons as are entitled thereto.
14.5. Exchange Rate. If, for the purpose of obtaining judgment in any
court or obtaining an order enforcing a judgment, it becomes necessary to
convert any amount due under this Credit Agreement in Dollars or in any other
currency (hereinafter in this Section 14.5 called the "first currency") into
any other currency (hereinafter in this Section 14.5 called the "second
currency"), then the conversion shall be made at the Agent's spot rate of
exchange for buying the first currency with the second currency prevailing at
the Agent's close of business on the Business Day next preceding the day on
which the judgment is given or (as the case may be) the order is made. Any
payment made to the Agent pursuant to this Credit Agreement in the second
currency shall constitute a discharge of the obligations of the respective
Borrower to pay to the Agent or any Bank any amount originally due to the Agent
or any Bank in the first currency under this Credit Agreement only to the
extent of the amount of the first currency which the Agent or any Bank is able,
on the date of the receipt by it of such payment in any second currency, to
purchase, in accordance with the Agent's or such Bank's normal banking
procedures, the amount of such second currency so received. If the amount of
the first currency falls short of the amount originally due to the Agent or any
Bank in the first currency under this Credit Agreement, the Borrowers hereby
agree that they will indemnify the Agent and the Banks against and save the
Agent and the Banks harmless from any shortfall so arising. This indemnity
shall constitute an obligation of such Borrower separate and independent from
the other obligations contained in this Credit Agreement, shall give rise to a
separate and independent cause of action and shall continue in full force and
effect notwithstanding any judgment or order for a liquidated sum or sums in
respect of amounts due to the Agent and the Banks under this Credit Agreement
or under any such judgment or order. Any such shortfall shall be deemed to
constitute a loss suffered by the Agent and the Banks and the Borrowers shall
not be entitled to require any proof or evidence of any actual loss. The
covenant contained in this Section 14.5 shall survive the payment in full of
all of the other obligations of the Borrowers under this Credit Agreement.
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15. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, the Borrowers acknowledge that by operation of applicable
law any deposits or other sums credited by or due from any of the Banks to a
Borrower and any securities or other property of a Borrower in the possession of
such Bank or any affiliate 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 a Borrower to such Bank. Each of the Banks agrees with each other Bank that
if such Bank shall receive from a Borrower, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross action, enforcement of the
claim evidenced by the Notes held by, or constituting Reimbursement Obligations
owed to, such Bank, by proceedings against a Borrower at law or in equity or by
proof thereof in bankruptcy, reorganization, liquidation, receivership or
similar proceedings, or otherwise, and shall retain and apply to the payment of
the Note or Notes held by, or Reimbursement Obligations owed to, such Bank any
amount in excess of its ratable portion of the payments received by all of the
Banks with respect to the Notes held by, and Reimbursement Obligations owed to,
all of the Banks, such Bank will make such disposition and arrangements with the
other Banks with respect to such excess, either by way of distribution, pro
tanto assignment of claims, subrogation or otherwise as shall result in each
Bank receiving in respect of the Notes held by it or Reimbursement Obligations
owed it, its proportionate payment as contemplated by this Credit Agreement;
provided that if all or any part of such excess payment is thereafter recovered
from such Bank, such disposition and arrangements shall be rescinded and the
amount restored to the extent of such recovery, but without interest.
16. THE AGENT.
16.1. Authorization.
(a) The Agent is authorized to take such action on behalf of
each of the Banks and to exercise all such powers as are hereunder and
under any of the other Loan Documents and any related documents
delegated to the Agent, together with such powers as are reasonably
incident thereto, provided that no duties or responsibilities not
expressly assumed herein or therein shall be implied to have been
assumed by the Agent. The Agent shall be fully justified in failing or
refusing to take any action under this Agreement unless it shall first
have received such advice or concurrence of the Majority Banks as it
reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing
to take any such action.
(b) The relationship between the Agent and each of the Banks
is that of an independent contractor. The use of the term "Agent" is
for convenience only and is used to describe, as a form of convention,
the independent contractual relationship between the Agent 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 Agent 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 Agent is nevertheless
a "representative" of the Banks,
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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 Agent with
respect to all collateral security and guaranties contemplated by the
Loan Documents. Such actions include the designation of the 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, all for the benefit of the Banks and the Agent.
16.2. Employees and Agents. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Credit Agreement and the other Loan Documents. The
Agent may utilize the services of such Persons as the Agent in its sole
discretion may reasonably determine, and all reasonable fees and expenses of any
such Persons shall be paid by the Borrower.
16.3. No Liability. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
16.4. No Representations. The Agent shall not be responsible for the
execution or validity or enforceability of this Credit Agreement, the Notes, the
Letters of Credit, any of the other Loan Documents or any instrument at any time
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 Parent or any of its
Subsidiaries, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein or in
any instrument at any time constituting, or intended to constitute, collateral
security for the Notes or to inspect any of the properties, books or records of
the Borrower or any of its Subsidiaries. The Agent shall not be bound to
ascertain whether any notice, consent, waiver or request delivered to it by a
Borrower or any holder of any of the Notes shall have been duly authorized or is
true, accurate and complete. The Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the credit worthiness or financial
conditions of the Parent or any of its Subsidiaries. Each Bank acknowledges that
it has, independently and without reliance upon the Agent or any other Bank, and
based upon such information and documents as it has deemed appropriate, made its
own credit analysis and decision to enter into this Credit Agreement.
16.5. PAYMENTS.
16.5.1. Payments to Agent. A payment by a Borrower to the
Agent hereunder or any of the other Loan Documents for the account of
any Bank shall constitute a payment to such Bank. The Agent agrees
promptly to distribute to each
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Bank such Bank's pro rata share of payments received by the Agent for
the account of the Banks except as otherwise expressly provided herein
or in any of the other Loan Documents.
16.5.2. Distribution by Agent. If in the opinion of the Agent
the distribution of any amount received by it in such capacity
hereunder, under the Notes or under any of the other Loan Documents
might involve it in liability, it may refrain from making distribution
until its right to make distribution shall have been adjudicated by a
court of competent jurisdiction. If a court of competent jurisdiction
shall adjudge that any amount received and distributed by the Agent is
to be repaid, each Person to whom any such distribution shall have been
made shall either repay to the Agent its proportionate share of the
amount so adjudged to be repaid or shall pay over the same in such
manner and to such Persons as shall be determined by such court.
16.5.3. Delinquent Banks. Notwithstanding anything to the
contrary contained in this Credit Agreement or any of the other Loan
Documents, any Bank that fails (a) to make available to the Agent its
pro rata share of any Loan or to purchase any Letter of Credit
Participation or (b) to comply with the provisions of Section 15 with
respect to making dispositions and arrangements with the other Banks,
where such Bank's share of any payment received, whether by setoff or
otherwise, is in excess of its pro rata share of such payments due and
payable to all of the Banks, in each case as, when and to the full
extent required by the provisions of this Credit Agreement, shall be
deemed delinquent (a "Delinquent Bank") and shall be deemed a
Delinquent Bank until such time as such delinquency is satisfied. A
Delinquent Bank shall be deemed to have assigned any and all payments
due to it from a Borrower, whether on account of outstanding Loans,
Unpaid Reimbursement Obligations, interest, fees or otherwise, to the
remaining nondelinquent Banks for application to, and reduction of,
their respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations. The Delinquent Bank hereby authorizes the
Agent to distribute such payments to the nondelinquent Banks in
proportion to their respective pro rata shares of all outstanding Loans
and Unpaid Reimbursement Obligations. A Delinquent Bank shall be deemed
to have satisfied in full a delinquency when and if, as a result of
application of the assigned payments to all outstanding Loans and
Unpaid Reimbursement Obligations of the nondelinquent Banks, the Banks'
respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations have returned to those in effect immediately
prior to such delinquency and without giving effect to the nonpayment
causing such delinquency.
16.6. Holders of Notes. The Agent may deem and treat the payee of any
Note or the purchaser of any Letter of Credit Participation as the absolute
owner or purchaser 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, assignee or transferee.
16.7. Indemnity. The Banks ratably agree hereby to indemnify and hold
harmless the Agent from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which the Agent has not been reimbursed by a Borrower as
required by Section 17), 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
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the Agent's actions taken hereunder or thereunder, except to the extent that any
of the same shall be directly caused by the Agent's willful misconduct or gross
negligence.
16.8. Agent as Bank. In its individual capacity, FNBB shall have the
same obligations and the same rights, powers and privileges in respect to its
Commitment and the Loans made by it, and as the holder of any of the Notes and
as the purchaser of any Letter of Credit Participations, as it would have were
it not also the Agent.
16.9. Resignation. The Agent may resign at any time by giving sixty
(60) days prior written notice thereof to the Banks and the Parent. Upon any
such resignation, the Majority Banks shall have the right to appoint a successor
Agent. Unless a Default or Event of Default shall have occurred and be
continuing, such successor Agent shall be reasonably acceptable to the Parent.
If no successor Agent shall have been so appointed by the Majority Banks and
shall have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Banks, appoint a successor Agent, which shall be a financial institution
having a rating of not less than A or its equivalent by Standard & Poor's
Corporation. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation, the provisions of this Credit
Agreement and the other Loan Documents shall continue in effect for its benefit
in respect of any actions taken or omitted to be taken by it while it was acting
as Agent.
17. EXPENSES.
The Parent agree to pay (a) the reasonable costs of producing and
reproducing this Credit Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (b) without duplication to those
items set forth in Section 7 and Section 20 (and giving effect to the exclusion
therefrom), any taxes (including any interest and penalties in respect thereto)
payable by the Agent or any of the Banks (other than Excluded Taxes) on or with
respect to the transactions contemplated by this Credit Agreement (the Borrower
hereby agreeing to indemnify the Agent and each Bank with respect thereto), (c)
the reasonable fees, expenses and disbursements of the Agent's Special Counsel
or any local counsel to the Agent incurred in connection with the preparation,
administration, syndication or interpretation of the Loan Documents and other
instruments mentioned herein, each closing hereunder, and amendments,
modifications, approvals, consents or waivers hereto or hereunder, (d) the fees,
expenses and disbursements of the Agent incurred by the Agent in connection with
the preparation, administration, syndication or interpretation of the Loan
Documents and other instruments mentioned herein, including (e) all reasonable
out-of-pocket expenses (including without limitation reasonable attorneys' fees
and costs, which attorneys may be employees of any Bank or the Agent, and
reasonable consulting, accounting, appraisal, investment banking and similar
professional fees and charges) incurred by any Bank or the Agent in connection
with (i) the enforcement of or preservation of rights under any of the Loan
Documents against the Borrower or any of its Subsidiaries or the administration
thereof after the occurrence of a Default or Event of Default, including,
without limitation, all reasonable out-of-pocket expenese incurred by the Banks
or the Agent in connection with the enforcement of the Guaranteed Obligations,
and (ii) any litigation, proceeding or dispute whether arising hereunder or
otherwise, in any way related to any Bank's or the Agent's relationship with a
Borrower or any of its Subsidiaries under this Credit Agreement and (f) all
reasonable fees, expenses and disbursements of any
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Bank or the Agent incurred in connection with UCC searches performed on or prior
to the Closing Date or performed after such date in the ordinary course of
business; provided, however, in the event the Agent or any Bank is required to
pay any Florida documentary stamp tax as a result of the Agent's or such Bank's
election to bring its Note into the State of Florida for any reason other than
for enforcement or the preservation of its rights hereunder, such tax shall be
for the Agent's or such Bank's account. The covenants of this Section 17 shall
survive payment or satisfaction of all other Obligations.
18. INDEMNIFICATION.
The Borrowers, ratably in accordance with the aggregate principal
amount of their respective Loans, shall indemnify the Agents, the Banks and
each affiliate thereof and their respective directors, officers, employees and
agents from, and hold each of them harmless against, any and all losses,
liabilities, claims or damages to which any of them may become subject, insofar
as such losses, liabilities, claims or damages arise out of or result from any
actual or proposed use by the Borrower of the proceeds of any extension of
credit by any Bank hereunder or breach by any Borrower of this Credit Agreement
or any other Loan Document or from any investigation, litigation (including,
without limitation, any actions taken by the Agents or any of the Banks to
enforce this Credit Agreement or any of the other Loan Document) or other
proceeding (including, without limitation, any threatened investigation or
proceeding) relating to the foregoing, and the Borrowers shall reimburse the
Agents and each Bank, and each affiliate thereof and their respective
directors, officers, employees and agents, upon demand for any expenses
(including, without limitation, legal fees) incurred in connection with any
such investigation or proceeding; but excluding any such losses, liabilities,
claims, damages or expenses incurred by reason of the gross negligence or
willful misconduct of the Person to be indemnified. The indemnification
provisions (including, without limitation, provisions for default interest, to
the extent that this Section 18 might be construed as duplicating the
Borrowers' obligations to pay interest at the Default Rate as required
elsewhere in this Agreement) set forth in this Section 18 are meant to be
without duplication of any other indemnification provisions set forth in this
Credit Agreement and without limiting the generality of the foregoing, the
costs, expenses and other amounts that are provided for in Sections 4.10. 7.3,
7.6, 7.7, 7.8, 7.10 and 17 hereof shall not be covered by this Section 18, nor
shall any costs, expenses or other amounts that are excluded from those
Sections be covered by this Section 18.
If any indemnified party shall have notice of any event or condition
for which indemnification will be sought from the Borrowers hereunder, such
indemnified party shall give prompt and timely notice of such event or
condition to the Parent and shall cooperate fully with the Parent in taking any
action with respect to such event or condition. The Parent shall have the right
to control any proceedings in connection with any event or condition that is
the subject to indemnification hereunder, including, without limitation, the
decision to commence or not to commence such proceeding, to defend or not to
defend, to discontinue or settle such proceeding or to appeal any decision with
respect thereto, so long as the indemnified party is held entirely harmless
pursuant hereto and the Parent is not in default in any of its obligations
under this Section 18; provided, however, that the Parent may not, in
connection with the settlement or disposition thereof, or otherwise, admit or
acknowledge liability, fault or wrongdoing on the part of any indemnified party
without the express written consent of such indemnified party; provided,
further, that any indemnified party shall be entitled to control any aspect of
the proceedings against them as to which an adverse outcome could, in the
reasonable opinion of such indemnified party, subject such indemnified party to
any criminal liability or to any liability, claim or relief not within the
scope of the indemnity of the Parent, provided that the Parent shall only be
required to pay
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the costs and expenses associated with one counsel for itself and all parties
seeking indemnification hereunder; and provided, further, that if the Majority
Banks reasonably object to the selection of counsel in any proceedings described
in this sentence, and such objection is made in a sufficiently timely manner so
as not to pose a material risk of prejudice to the Parent, its Subsidiaries, the
Agent or the Banks with respect to the outcome of the proceeding, the Parent
shall select other or additional counsel acceptable to the Majority Banks (which
acceptance shall not be unreasonably withheld or delayed).
Upon the payment of any amounts due to the indemnified parties under
this Section 18, the Borrowers shall be subrogated to all of the indemnified
party's rights and claims with respect to the subject of such indemnity
payment.
19. 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 Parent or any of its Subsidiaries
pursuant hereto shall be deemed to have been relied upon by the Banks and the
Agent, notwithstanding any investigation heretofore or hereafter made by any of
them, and shall survive the making by the Banks of any of the Loans and the
issuance, extension or renewal of any Letters of Credit, as herein contemplated,
and shall continue in full force and effect so long as any Letter of Credit or
any amount due under this Credit Agreement or the Notes or any of the other Loan
Documents remains outstanding or any Bank has any obligation to make any Loans
or the Agent has any obligation to issue, extend or renew any Letter of Credit,
and for such further time as may be otherwise expressly specified in this Credit
Agreement. All statements contained in any certificate or other paper delivered
to any Bank or the Agent at any time by or on behalf of the Parent or any of its
Subsidiaries pursuant hereto or in connection with the transactions contemplated
hereby shall constitute representations and warranties by the Parent or such
Subsidiary hereunder.
20. ASSIGNMENT AND PARTICIPATION.
20.1. Conditions to Assignment by Banks. Except as provided herein,
each Bank may assign to one or more Eligible Assignees or any of such Bank's
affiliates, which affiliate shall not be required to be an Eligible Assignee,
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, the Notes
held by it and its participating interest in the risk relating to any Letters of
Credit); provided that (a) each of the Agent and, unless a Default or Event of
Default shall have occurred and be continuing or such assignment is being made
by FNBB within six months of the Closing Date, the Parent shall have given its
prior written consent to such assignment, which consent, in the case of the
Parent, will not be unreasonably withheld; provided, however, in the event of an
assignment by an Bank to its affiliate, the consent of the Agent and the
Borrower shall not be required; (b) 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 (c) each assignment shall be in an amount that
is not less than $10,000,000. The parties to such assignment shall execute and
deliver to the Agent, for recording in the Register (as hereinafter defined), an
Assignment and Acceptance, substantially in the form of Exhibit K 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
<PAGE> 82
-76-
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder, and (ii) the assigning
Bank shall, to the extent provided in such assignment and upon payment to the
Agent of the registration fee referred to in Section 20.3, be released from its
obligations under this Credit Agreement.
20.2. 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
the Parent and its Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the
performance or observance by the Parent and its Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Credit Agreement or
any of the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Credit Agreement, together with copies of the most recent financial
statements referred to in Section 8.4 and Section 9.4 and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and
Acceptance;
(d) such assignee will, independently and without reliance
upon the assigning Bank, the Agent or any other Bank and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking
action under this Credit Agreement;
(e) such assignee represents and warrants that it is an
Eligible Assignee;
(f) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under
this Credit Agreement and the other Loan Documents as are delegated to
the Agent by the terms hereof or thereof, together with such powers as
are reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this
Credit Agreement are required to be performed by it as a Bank;
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance;
<PAGE> 83
-77-
(i) such assignee acknowledges that it has made arrangements
with the assigning Bank satisfactory to such assignee with respect to
its pro rata share of Letter of Credit Fees in respect of outstanding
Letters of Credit; and
(j) such assignee shall not be entitled to receive any greater
payment which might otherwise be due such assignee under Sections 4.10,
7.3, 7.6, 7.7, 7.8 or 7.10 than the assignor would have been entitled
to receive on such date with respect to the rights transferred to the
extent that the circumstances giving rise to such greater payment
existed on the date of such transfer, unless such transfer is made by
reason of the provisions of Sections 7.6 and 7.7 requiring such Bank to
designate a different lending office under certain circumstances, and
in any event any costs or expenses associated with an assignment to any
assignee (including, without limitation, the Florida documentary stamp
tax) shall be for the account of such assignee.
20.3. Register. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentage of, and principal amount of the Revolving Credit Loans owing to and
Letter of Credit Participations purchased by, the Banks from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Agent and the Banks may treat each Person whose name is
recorded in the Register as a Bank hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection by the Borrower and
the Banks at any reasonable time and from time to time upon reasonable prior
notice. Upon each such recordation, the assigning Bank agrees to pay to the
Agent a registration fee in the sum of $2,500.
20.4. General. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, the Agent shall (a) record the
information contained therein in the Register, and (b) give prompt notice
thereof to the Parent and the Banks (other than the assigning Bank).
20.5. 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 (a) each such participation shall be in an amount of not less than
$10,000,000, (b) any such sale or participation shall not affect the rights and
duties of the selling Bank hereunder to the Borrowers, (c) no participant shall
be entitled to receive any greater payment under this Credit Agreement or any
other Loan Document than the Bank selling such participation would have been
entitled to receive had such participation not existed and (d) 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 or Letter of Credit Fees to which such
participant is entitled or extend any regularly scheduled payment date for
principal or interest.
20.6. Disclosure. The Borrowers agree that in addition to disclosures
made in accordance with standard and customary banking practices any Bank may
disclose information obtained by such Bank pursuant to this Credit Agreement to
assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or
participants shall agree (a) to treat in confidence such information unless such
information otherwise becomes public knowledge, (b) not to disclose such
information to a third party, except as required by law or legal process and (c)
<PAGE> 84
-78-
not to make use of such information for purposes of transactions unrelated to
such contemplated assignment or participation.
20.7. Assignee or Participant Affiliated with the Parent. If any
assignee Bank is an Affiliate of 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 Agent pursuant to Section 14.1 or
Section 14.2, 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 or Reimbursement Obligations to a
participant, and such participant is the Parent or an Affiliate of the Parent,
then such transferor Bank shall promptly notify the Agent of the sale of such
participation. A transferor Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or modifications
to any of the Loan Documents or for purposes of making requests to the Agent
pursuant to Section 14.1 or Section 14.2 to the extent that such participation
is beneficially owned by the Parent or any Affiliate of 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.
20.8. Miscellaneous Assignment Provisions. Any assigning Bank shall
retain its rights to be indemnified pursuant to Section 17 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 Parent and the Agent certification as to its exemption from
deduction or withholding of any United States federal income taxes. Anything
contained in this Section 20 to the contrary notwithstanding, any Bank may at
any time pledge all or any portion of its interest and rights under this Credit
Agreement (including all or any portion of its Notes) to any of the twelve
Federal Reserve Banks organized under Section 4 of the Federal Reserve Act, 12
U.S.C. Section 341. No such pledge or the enforcement thereof shall release the
pledgor Bank from its obligations hereunder or under any of the other Loan
Documents.
20.9. Assignment to Borrowers. The Borrowers shall not assign or
transfer any of its rights or obligations under any of the Loan Documents
without the prior written consent of each of the Banks.
21. 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 or any Letter of Credit Applications 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, facsimile or telex and confirmed by delivery via courier
or postal service, addressed as follows:
(a) if to any Borrower, at 951 Yamato Road, Boca Raton,
Florida, Attention: Chief Financial Officer, or at such other address
for notice as the Parent shall last have furnished in writing to the
Person giving the notice;
<PAGE> 85
-79-
(b) if to the Agent, at 100 Federal Street, Boston,
Massachusetts 02110, USA, Attention: Jay L. Massimo, Vice President, or
such other address for notice as the Agent shall last have furnished in
writing to the Person giving the notice; and
(c) if to any Bank, at such Bank's address set forth on
Schedule 1 hereto, or such other address for notice as such Bank shall
have last furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or
made and to have become effective (a) 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
(b) if sent by registered or certified first-class mail, postage prepaid, on the
third Business Day following the mailing thereof.
22. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
STATE OF NEW YORK AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF SAID STATE OF NEW YORK (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT
FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS
MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR ANY FEDERAL COURT
SITTING THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND
SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON A BORROWER BY MAIL AT THE
ADDRESS SPECIFIED IN Section 21. THE BORROWERS HEREBY WAIVE ANY OBJECTION THAT
ANY OF THEM 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.
23. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
24. 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 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.
25. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection
herewith or therewith express the entire understanding of the parties with
respect to the transactions contemplated hereby. Neither this Credit Agreement
nor any term hereof may be changed, waived, discharged or terminated, except as
provided in Section 27.
<PAGE> 86
-80-
26. WAIVER OF JURY TRIAL.
The Borrowers hereby waive their right to a jury trial with respect to
any action or claim arising out of any dispute in connection with this Credit
Agreement, the Notes or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of which rights and
obligations. Except as prohibited by law, the Borrowers hereby waive any right
any of them may have to claim or recover in any litigation referred to in the
preceding sentence any special, exemplary, punitive or consequential damages or
any damages other than, or in addition to, actual damages. The Borrowers (a)
certify that no representative, agent or attorney of any Bank or the Agent has
represented, expressly or otherwise, that such Bank or the Agent would not, in
the event of litigation, seek to enforce the foregoing waivers and (b)
acknowledge that the Agent and the Banks have been induced to enter into this
Credit Agreement, the other Loan Documents to which it is a party by, among
other things, the waivers and certifications contained herein.
27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this Credit Agreement
to be given by all of the Banks may be given, and any term of this Credit
Agreement, the other Loan Documents or any other instrument related hereto or
mentioned herein may be amended, and the performance or observance by the
Parent or any of its Subsidiaries of any terms of this Credit Agreement, the
other Loan Documents 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 term of
the Notes, the amount of the Commitments of the Banks, and the amount of
facility fee or Letter of Credit Fees hereunder, any scheduled payment date for
principal, interest, fees, any Reimbursement Obligation, any extension of a
Letter of Credit not provided for in Section 5, the release of the guarantor
hereunder, any changes to this Section 27, waivers of Section 12 hereof or any
other provision expressly requiring the consent of all the Banks may not be
changed without the written consent of the Borrowers 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 Agent's
Fee or any Letter of Credit Fees payable for the Agent's account and Section 16
may not be amended without the written consent of the Agent. No waiver shall
extend to or affect any obligation not expressly waived or impair any right
consequent thereon. No course of dealing or delay or omission on the part of
the Agent or any Bank in exercising any right shall operate as a waiver thereof
or otherwise be prejudicial thereto. No notice to or demand upon a Borrower
shall entitle any Borrower to other or further notice or demand in similar or
other circumstances.
28. 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.
<PAGE> 87
-81-
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
SENSORMATIC ELECTRONICS
CORPORATION
By: /s/ Garrett Pierce
-----------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF BOSTON,
individually and as Agent
By: /s/ Jay L. Massimo
------------------------------
Name: Jay L. Massimo
Title: Vice President
<PAGE> 88
-82-
SUN TRUST BANK, SOUTH FLORIDA, N.A.
By: /s/ Russell E. Burnette
--------------------------
Name: Russell E. Burnette
Title: Vice President
<PAGE> 89
-83-
CITIBANK, N.A.
By: /s/ Carolyn R. Bodmer
------------------------
Name: CAROLYN R. BODMER
Title: Vice President
<PAGE> 90
-84-
THE FUJI BANK LIMITED, NEW YORK
BRANCH
By: /s/ Toshiaki Yakura
----------------------------
Name: Toshiaki Yakura
Title: Senior Vice President
<PAGE> 91
-85-
CIBC, INC.
By: /s/ Roger Golden
------------------
Name: Roger Golden
Title: Director
<PAGE> 92
-86-
NATIONSBANK, N.A.
By: /s/ Andrew M. Airheart
----------------------------
Name: Andrew M. Airheart
Title: Senior Vice President
<PAGE> 93
-87-
UNION BANK OF SWITZERLAND, NEW
YORK BRANCH
By: /s/ Alfred W. Imholz
------------------------
Name: Alfred W. Imholz
Title: Managing Director
By: /s/ Jan Buettgen
------------------------
Name: Jan Buettgen
Title: Vice President
Corporate Banking
<PAGE> 94
SCHEDULE 1
BANKS/COMMITMENTS
<TABLE>
<CAPTION>
Revolving Commitment
Credit Loan Percentage of Revolving Credit Loans and
Banks Commitment Letters of Credit
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
The First National Bank of Boston $85,000,000 34%
Domestic Lending Office:
100 Federal Street
Boston, Massachusetts 02110
Attn: Joseph L. Massimo, Vice President
Eurodollar Lending Office:
Same as above
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
NationsBank, N.A. $85,000,000 34%
Domestic Lending Office:
NationsBank Corporate Center
100 North Tryon Street
Charlotte, NC 29255
Attn: Andrew Mike Airheart,
Eurocurrency Lending Office:
Same as above
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
CIBC Inc. $20,000,000 8%
Domestic Lending Office:
Two Paces West, Suite 1200
2727 Paces Ferry Road
Atlanta, Georgia 30330
Attn: Richard Popp, Vice President
Eurocurrency Lending Office:
Same as above
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
Citibank N.A. $15,000,000 6%
Domestic Lending Office:
c/o Citicorp USA, Inc'
400 Perimeter Center Terrace
Suite 600
Atlanta, Georgia 30346
Attn: Kirk Lakeman, Vice President
Eurodollar Lending Office:
Same as above
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 95
-2-
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Union Bank of Switzerland $15,000,000 6%
Domestic Lending Office
299 Pak Avenue
New York, New York 10171
Attn: Jan Buettgen, Vice President
Eurocurrency Lending Office:
Same as above
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
The Fuji Bank, Limited $15,000,000 6%
Domestic Lending Office:
New York Branch
Domestic Lending Office:
Two World Trade Center
New York, New York 10048
Attn: Chigusa Tada, Assistant Vice
President
Eurocurrency Lending Office:
Same as above
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
Suntrust Bank $15,000,000 6%
Domestic Lending Office:
501 East Los Olas Blvd.
Fort Lauderdale, Florida 33301
Attn: Russell E. Burnette
Eurocurrency Lending Office:
Same as above
- ----------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------
Totals: $250,000,000 100%
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 1
EXHIBIT 11
SENSORMATIC ELECTRONICS CORPORATION
COMPUTATION OF EARNINGS PER COMMON SHARE
(IN MILLIONS)
<TABLE>
<CAPTION>
Three Months ended Six Months ended
December 31, December 31,
------------------ ---------------------
1996 1995 1996 1995
---- ----- ---- ----
<S> <C> <C> <C> <C>
Net income/(loss) $ 6.1 $(65.1) $ 8.2 $(48.2)
----- ------ ----- ------
Common shares:
Weighted average shares
outstanding during the period 74.0 73.5 73.9 73.4
Potential dilutive exercise
of stock options
and warrants .2 -- (1) .2 -- (1)
----- ------ ----- ------
Shares included in computation
of earnings/(loss) per share 74.2 73.5 74.1 73.4
===== ====== ===== ======
</TABLE>
(1) Not presented as the effect is anti-dilutive.
20
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
FINANCIAL STATEMENTS OF SENSORMATIC ELECTRONICS FOR THE SIX MONTHS ENDED
DECEMBER 31, 1996, AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000,000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> JUN-30-1997
<PERIOD-START> JUL-01-1996
<PERIOD-END> DEC-31-1996
<CASH> 71
<SECURITIES> 3
<RECEIVABLES> 525
<ALLOWANCES> 61
<INVENTORY> 168
<CURRENT-ASSETS> 639
<PP&E> 248
<DEPRECIATION> 98
<TOTAL-ASSETS> 1,689
<CURRENT-LIABILITIES> 310
<BONDS> 493
0
0
<COMMON> 727
<OTHER-SE> 118
<TOTAL-LIABILITY-AND-EQUITY> 1,689
<SALES> 477
<TOTAL-REVENUES> 503
<CGS> 262
<TOTAL-COSTS> 272
<OTHER-EXPENSES> 17
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 24
<INCOME-PRETAX> 11
<INCOME-TAX> 3
<INCOME-CONTINUING> 8
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 8
<EPS-PRIMARY> .11
<EPS-DILUTED> .11
</TABLE>
