<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the Quarterly Period Ended March 31, 1999
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Commission File Number 0-26634
LECROY CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 13-2507777
(State or other jurisdiction (I.R.S. Employer
of Incorporation or organization) Identification No.)
700 CHESTNUT RIDGE ROAD, CHESTNUT RIDGE , NEW YORK 10977
(Address of principal executive office) (Zip Code)
Registrant's telephone number, including area code: (914) 425-2000
Indicate by check mark ("X") whether the Registrant: (1) has filed all reports
to be filed by section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding twelve months (or for such shorter period that the Registrant was
required to file such reports) and (2) has been subject to such filing
requirements for the past 90 days.
YES X NO _______
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
<TABLE>
<CAPTION>
CLASS OUTSTANDING AT APRIL 20, 1999
<S> <C>
Common stock, par value $.01 share 7,634,492
</TABLE>
<PAGE> 2
LECROY CORPORATION
INDEX
<TABLE>
<CAPTION>
Page
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<S> <C> <C>
PART I FINANCIAL INFORMATION
Item 1. Financial Statements:
Condensed Consolidated Balance Sheets 3
Condensed Consolidated Statements of Operations 4
Condensed Consolidated Statements of Cash Flows 5
Notes to Condensed Consolidated Financial Statements 6-7
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 8-11
PART I OTHER INFORMATION 12
PART II OTHER INFORMATION 12
Signatures 12
</TABLE>
2
<PAGE> 3
LECROY CORPORATION
CONDENSED CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
March 31, June 30,
In thousands 1999 1998
(Unaudited)
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 2,495 $ 1,895
Accounts receivable 31,277 31,297
Inventories:
Raw materials 10,954 11,377
Work in process 4,459 6,206
Finished goods 11,062 9,099
-------- --------
Total inventories 26,475 26,682
Other current assets 3,068 2,556
-------- --------
Total current assets 63,315 62,430
Property and equipment, at cost:
Land and building 8,513 6,825
Furniture, machinery and equipment 30,781 29,907
-------- --------
Total property and equipment 39,294 36,732
Less: Accumulated depreciation and amortization (25,418) (24,937)
-------- --------
Property and equipment, net 13,876 11,795
Marketable securities 5,536 5,073
Other assets 14,593 9,812
-------- --------
TOTAL ASSETS $ 97,320 $ 89,110
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current debt $ 2,665 $ 2,294
Accounts payable 10,642 9,970
Accrued warranty 1,823 1,943
Accrued liabilities and deferred revenue 6,081 6,980
Accrued employee compensation and benefits 8,855 7,506
Accrued restructuring costs 5,330 2,516
Income taxes 2,996 3,524
-------- --------
Total Current liabilities 38,392 34,733
Long term debt 9,800
Deferred compensation 316 270
Stockholders' equity:
Common stock 76 76
Additional paid-in capital 38,514 37,867
Accumulated other comprehensive loss (4,381) (5,347)
Retained earnings 14,603 21,511
-------- --------
Total stockholders' equity 48,812 54,107
-------- --------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 97,320 $ 89,110
======== ========
</TABLE>
See accompanying notes to condensed consolidated
financial statements.
3
<PAGE> 4
LECROY CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(UNAUDITED)
<TABLE>
<CAPTION>
Three months ended Nine months ended
March 31, March 31,
In thousands, except per share data 1999 1998 1999 1998
<S> <C> <C> <C> <C>
Revenues:
Digital oscilloscope and related products $ 25,534 $ 21,458 $ 72,669 $ 75,735
High energy physics products 2,313 1,856 5,849 4,641
Service and other 1,781 1,449 5,016 4,913
-------- -------- -------- --------
Test and measurement revenues 29,628 24,763 83,534 85,289
LAN/WAN test instruments 2,566 981 7,787 7,178
License fees 2,400 5,000 4,900 6,000
-------- -------- -------- --------
Total revenues 34,594 30,744 96,221 98,467
Cost of sales 18,429 11,717 47,435 40,553
-------- -------- -------- --------
Gross profit 16,165 19,027 48,786 57,914
Operating expenses
Selling, general and administrative 11,596 11,090 32,649 33,070
Research and development 4,807 4,496 13,409 13,998
Restructuring and nonrecurring charges 8,546 -- 8,546 3,533
-------- -------- -------- --------
Total 24,949 15,586 54,604 50,601
-------- -------- -------- --------
Operating income (loss) (8,784) 3,441 (5,818) 7,313
Other income, net 194 287 8 167
-------- -------- -------- --------
Income (loss) before income taxes (8,590) 3,728 (5,810) 7,480
Provision for income taxes 265 1,118 1,098 2,203
-------- -------- -------- --------
Net income (loss) $ (8,855) $ 2,610 $ (6,908) $ 5,277
======== ======== ======== ========
Income (loss) per common share:
Basic $ (1.16) $ 0.35 $ (0.91) $ 0.72
======== ======== ======== ========
Diluted $ (1.16) $ 0.33 $ (0.91) $ 0.66
======== ======== ======== ========
Basic ........................................ 7,629 7,429 7,601 7,340
======== ======== ======== ========
Diluted ...................................... 7,629 7,904 7,601 8,055
======== ======== ======== ========
</TABLE>
See accompanying notes to condensed consolidated
financial statements.
4
<PAGE> 5
LECROY CORPORATION
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
<TABLE>
<CAPTION>
Nine Months Ended
March 31,
In thousands 1999 1998
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $ (6,908) $ 5,277
Adjustments for noncash items included in operating activities:
Depreciation and amortization 3,473 2,789
Restructuring provisions 9,745 --
Other (13) --
Deferred income taxes -- 23
Purchased incomplete technology -- 1,600
Non-recurring merger costs -- 1,933
Change in operating asset and liability components:
Accounts receivable 228 (7,756)
Inventories (1,625) (5,874)
Prepaid expenses and other assets (341) (151)
Accounts payable, accrued liabilities and deferred revenue (3,487) 5,392
Accrued employee compensation and benefits (1,642) (343)
Income taxes (664) (358)
-------- --------
Net cash provided by (used) in operating activities (1,234) 2,532
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchase of property and equipment (4,998) (3,275)
Investment in equity securities -- (7,054)
Purchase of intangible assets (2,525) (4,700)
Investment in computer software (1,105) --
Business acquisition, net of acquired cash -- (395)
Proceeds from the disposal of property and equipment -- 41
-------- --------
Net cash used in investing activities (8,628) (15,383)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Net change in short-term debt 184 1,044
Borrowings under line of credit 9,800 --
Proceeds from exercise of stock options and stock purchases 648 2,505
Repayment of debt and capitalized leases -- (68)
-------- --------
Net cash provided by financing activities 10,632 3,481
-------- --------
Effect of exchange rates on cash (170) (1,972)
-------- --------
Increase (decrease) in cash and cash equivalents 600 (11,342)
Cash and cash equivalents at beginning of the period 1,895 19,884
-------- --------
Cash and cash equivalents at end of the period $ 2,495 $ 8,542
======== ========
</TABLE>
See accompanying notes to condensed consolidated
financial statements.
5
<PAGE> 6
LECROY CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
Basis of Presentation
In the opinion of management, the accompanying unaudited interim condensed
consolidated financial statements reflect all adjustments, of a normal and
recurring nature, necessary to present fairly the results for the interim
periods presented.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted. The year-end balance sheet data was derived from
audited financial statements, but does not include all disclosures required by
generally accepted accounting principles. It is suggested that these condensed
statements be read in conjunction with the Company's most recent Form 10-K and
Annual Report as of June 30, 1998.
This Form 10-Q contains forward-looking statements which involve risks and
uncertainties. The Company's actual results may differ significantly from the
results discussed in the forward-looking statements. Factors that might cause
the Company's actual results or activities to differ materially from these
forward-looking statements include but are not limited to: the effect of
economic conditions, including the effect on purchases by the Company's
customers; competitive factors, including pricing pressures, technological
developments and products offered by competitors; changes in product sales and
mix; the Company's ability to deliver a timely flow of competitive new products
and market acceptance of these products; inventory risks due to changes in
market demand or the Company's business strategies; currency fluctuations; the
effect of the Company's accounting policies; and other risk factors listed from
time to time in the Company's reports filed with the Securities and Exchange
Commission and press releases.
Results for the interim period are not necessarily indicative of the results
that may be expected for the entire year.
New Accounting Pronouncements
Comprehensive Income (Loss)
Effective July 1, 1998, the Company adopted Statement of Financial Accounting
Standards (SFAS) No. 130, "Reporting Comprehensive Income." SFAS No. 130
establishes new rules for the reporting and display of comprehensive income or
(loss) and its components in the financial statements. The adoption of SFAS No.
130 had no effect on the Company's financial position or results of operations.
For the three and nine months ended March 31, 1999 the Company's comprehensive
loss totaled $9.8 million and $6.0 million, respectively. For the three and nine
months ended March 31, 1998 the Company's comprehensive income totaled $0.5
million and $2.6 million, respectively. Comprehensive income for the three and
nine months ended March 31, 1999 included foreign currency translation losses of
$2.2 million and foreign currency translation gains of $0.7 million,
respectively, and unrealized gains on marketable equity securities classified as
available for sale of $1.3 million and $0.2 million, respectively. Comprehensive
income for the three and nine months ended March 31, 1998 included foreign
currency translation losses of $1.4 million and $2.0 million, respectively, and
unrealized losses on marketable equity securities classified as available for
sale of $0.7 million. . The cumulative foreign currency translation losses were
$3.2 million at March 31, 1999 and $3.9 million at June 30, 1998. The cumulative
unrealized losses on marketable equity securities classified as available for
sale were $1.2 million at March 31, 1999 and $1.4 million at June 30, 1998.
6
<PAGE> 7
LECROY CORPORATION
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
Shareholder Rights Plan
On November 2, 1998 the Company's Board of Directors declared a dividend
distribution of one right in respect to each share of the Company's common stock
outstanding at the record date, November 18, 1998. Initially, the rights will
trade together with the common stock and will not be exercisable or separately
tradable. The rights will be exercisable if a person or group acquires, in the
future, 15 percent or more of the Company's stock or announces a tender offer.
Right holders, other than the acquiring person or group, are then entitled to
purchase an amount of the Company's stock at a 50 percent discount to the share
price at that time. The amount of stock that a right holder is entitled to
purchase is based on the exercise price. Under certain circumstances, the right
will entitle the stockholder to buy shares in an acquiring entity at a discount.
LeCroy's Board of Directors may redeem the rights at a price of $0.001 per right
up until 10 days following a public announcement that any person or group has
acquired 15 percent or more of LeCroy's common stock. The rights will expire on
November 2, 2008, unless redeemed prior to that date.
Restructuring and Nonrecurring Charges
The operating results for both the three and nine months ended March 31, 1999
includes total restructuring and non recurring charges of $10.7 million ($10.4
million after taxes or $1.36 per basic share) relating to the consolidation of
the Company's oscilloscope operations. The Company believes that this
consolidation will enhance operating efficiencies and enable the Company to
dedicate additional resources to capitalize on several breakthrough
technologies.
Of the aforementioned $10.7 million pretax charges, $10.4 million relates to
restructuring costs. The restructuring costs include inventory write downs of
$2.2 million included in cost of sales, the accrual for the future minimum lease
payments for the Geneva Switzerland manufacturing facility of $3.4 million,
severance and employee benefit costs of $3.0 million for the reduction of full
and part time employees from the current workforce and the write down of plant
assets and capitalized management information system software and other costs of
$1.8 million.
Associated with the restructuring efforts were $0.3 million of additional costs
incurred to redeploy manufacturing and employee resources The Company expects an
additional $0.3 million of similar costs in the fourth quarter of fiscal 1999,
which will be recorded as non recurring charges as incurred.
Amended Multicurrency Debt Agreement
In March 1999 the Company amended its unsecured multicurrency revolving credit
facility and increased its borrowing capacity to $20 million, maturing in
January 2002. At March 31, 1999 the Company had borrowed $9.8 million under the
agreement. The amended credit agreement contains financial covenants that were
met at March 31, 1999.
7
<PAGE> 8
LECROY CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Consolidated revenues were $34.6 million and $96.2 million, respectively,
for the current quarter and nine months ended March 31, 1999, an increase of
approximately $3.8 million, or 13% from the quarter ended March 31, 1998 and a
decline of $2.2 million, or 2% from the nine months ended March 31, 1998. The
increase for the quarter was primarily attributable to an increase in digital
oscilloscopes and related product revenues as well as an increase in LAN/WAN
test instrument revenues. This increase was offset partially by a decrease in
license fees for the quarter. The decline for the nine months was primarily
attributable to a decline in digital oscilloscopes and related product revenues
and license fees offset partially by increases in high-energy physics products
and LAN/WAN test instruments.
Test and measurement revenues increased $4.9 million or 20% in the third
quarter. Higher unit volumes attributable to the successful launch of the
Company's new WaveRunner(TM) products caused the increase for the quarter. The
WaveRunner marks the Company's first innovation in five years in the 200 to 500
MHz, mid market segment. In addition the LC564/584 introduced nine months ago
achieved its greatest quarterly sales volume. Test and measurement revenues
decreased $1.7 million or 2% for the nine months ended March 31, 1999. The
decline in revenue for the nine-month period was caused by lower unit volumes
attributable to the softness in the Japanese and Pacific Rim markets coupled
with softness in the disk drive industry.
Revenues from LAN/WAN test instruments increased $1.6 million, or 162% in
the third quarter and $0.6 million, or 8% in the nine months ended March 31,
1999 compared to the same periods in the prior year. The increases for the third
quarter and nine months were primarily attributable to the continued success of
the Company's NEWSLine(TM) network analyzer product, which was introduced in
December 1998.
License fees decreased $2.6 million and $1.1 million, or 52% and 18%,
respectively for quarter and nine months ended March 31, 1999.
Gross profit for the three months ended March 31, 1999, excluding the
impact of restructuring charges of $2.17 million and transition costs of $0.25
million, was 53.7% of revenues compared to 61.9% of revenues for the three
months ended March 31, 1998. Transition costs relate to costs incurred to train
the manufacturing staff in Chestnut Ridge in the manufacturing techniques
previously employed at the Geneva Switzerland manufacturing facility. Gross
profit for the nine months ended March 31, 1999, excluding the impact of the
aforementioned restructuring and transition charges, was 53.2% of revenues
compared to 58.8% of revenues for the comparable period in the prior year. This
decrease in gross profit for both the three and nine months ended March 31, 1999
was caused by lower gross margins due to the higher material costs of the
LC584/564 product lines, which were introduced in the fourth quarter of fiscal
1998. The decrease in gross margin for both the three and nine months ended
March 31, 1999 was also attributable to the lower gross margins on the Company's
new WaveRunner products. The decline in gross profit was magnified by the
decrease in license fees for the quarter and nine months ended March 31, 1999.
Selling, general and administrative expenses, excluding transition costs of
$0.5 million, as a percentage of revenue was 32.1% for the three months ended
March 31, 1999 compared to 36.1% for the three months ended March 31, 1998.
Selling, general and administrative expenses, excluding the aforementioned
transition costs, as a percentage of total revenue was 33.4% for the nine months
ended March 31, 1999 compared to 33.6% for the nine month period in the prior
year. Selling, general and administrative dollar expenses, excluding transition
costs of $0.5 million, remained flat for the three months ended March 31, 1999
compared to the three months ended March 31, 1998 and reflects costs incurred to
support higher sales volume for the three months ended March 31, 1999. Excluding
transition costs, selling, general and administrative dollar expenses decreased
$0.9 million, or 3% for the nine months ended March 31, 1999 compared to the
nine months ended March 31, 1998. This decline is primarily attributable to the
benefits derived from the Company's previous restructuring programs. The
transition costs primarily relate to the training of sales and marketing
personnel in Chestnut Ridge.
8
<PAGE> 9
LECROY CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONT.)
Research and development expenses, excluding transition costs of $0.2
million, increased $0.1 million in the quarter ended March 31, 1999 compared to
the prior year quarter. The transition costs primarily relate to the training of
the research and development team in Chestnut Ridge. This increase for the
quarter was primarily due to the increased investment in the development of new
digital oscilloscope products and the network business. Research and development
expenses, excluding the aforementioned transition costs, decreased $0.8 million
in the nine months ended March 31, 1998 and reflect greater development costs
last year for NEWSLine and the new LC584/564 platform which products came to
market this year. Excluding transition costs, research and development expenses
as a percentage of total revenue were 13.2% for the three months ended March 31,
1999 compared to 14.6% for the quarter ended March 31, 1998. Excluding
transition costs, research and development expenses as a percentage of total
revenue were 13.7% for the nine months ended March 31, 1999 compared to 14.2%
for the nine months ended March 31, 1998.
Operating income, excluding the impact of restructuring, nonrecurring and
transition charges, decreased $0.5 million, or 15% for the current quarter and
$5.0 million or 46% for the nine months ended March 31, 1999 compared to the
same periods in the prior year. This decline in operating income was due to
lower margins in the current year as well as the other factors discussed above.
Excluding the impact of restructuring, nonrecurring and transition charges,
operating income as a percentage of total revenues was 8.4% and 6.1% for the
quarter and nine months ended March 31, 1999 compared to 11.2%, and 11%,
respectively, for the quarter and nine months ended March 31, 1998.
Net interest expense and financing charges, included in other income was
$155,000 and $318,000 in the three and nine month periods ended March 31, 1999
compared to net interest income of $154,000 and $501,000 in the same prior year
periods. The decrease in the current year is due primarily to reduced levels of
cash on hand as the Company has made significant capital investments in the last
half of fiscal 1998 as well as in the third quarter of fiscal 1999. These
capital investments include an equity investment and purchased manufacturing and
distribution rights. The Company has also increased borrowings under its line of
credit during the three months ended March 31, 1999. Other income for the three
months ended March 31, 1999 included currency exchange gains, primarily
attributable to the Swiss franc, of $349,000 compared to $133,000 in the
comparable prior year period. Other income for the nine months ended March 31,
1999 and 1998 include currency exchange gains, primarily attributable to the
Swiss franc and the Korean won, of $326,000 and currency exchange losses of
$334,000, respectively.
The Company's income tax rate, excluding the impact of restructuring and
nonrecurring charges, for the three months ended March 31, 1999 and 1998 was
30%. The Company's income tax rate on earnings, excluding the impact of
restructuring charges, for the nine months ended March 31, 1999 was 30% compared
to 29.4% for the nine months ended March 31, 1998. Currently, the Company's
Swiss subsidiary operates under a tax agreement with the Canton of Geneva
pursuant to which the effective tax rate on income with respect to such
subsidiary is approximately 15%. This agreement is in effect through the fiscal
year ended June 30, 2000.
RESTRUCTURING AND NONRECURRING COSTS
While the Company has experienced substantial revenue growth during the
past several years, the Company faces upcoming challenges, specifically in the
Japanese and Pacific Rim markets. Additionally, the cyclical slowdown in the
disk drive industry has placed increased pressure on the Company's domestic
sales. Although the Company's visibility regarding the duration of these factors
is limited, it is possible that the aforementioned factors could affect the
Company's performance for the next several quarters. As a result, the Company
has undertaken two restructuring plans, one in the current quarter of fiscal
1999 and one in the fourth quarter of fiscal 1998. The objectives of these
restructuring plans were to bring costs in line with revenues, consolidate its
oscilloscope operations in order to enhance operating efficiencies and to
dedicate additional resources to capitalize on several breakthrough
technologies.
9
<PAGE> 10
LECROY CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONT.)
At March 31, 1999 the Company had remaining reserves and liabilities of
approximately $14.4 million relating to the restructuring plans. During the
quarter and nine months ended March 31, 1999 the Company charged approximately
$1.1 million and $2.4 million, respectively, against these restructuring
reserves. These charges primarily related to severance and other employee
benefits. The overall expected cost of the fourth quarter fiscal 1998
restructuring plan has not changed since the plan was approved and it is
expected to be completed by the end of fiscal 1999. The restructuring plan
adopted in the current quarter is expected to be completed by March 31, 2000.
In the second quarter of 1998 the Company incurred $3.5 million in
nonrecurring charges relating to the acquisition of Digitech Industries and
Preamble, Inc. These charges included $1.9 million relating to the Digitech
acquisition and $1.6 million relating to the Preamble acquisition. The
nonrecurring charges relating to the Digitech acquisition included provisions
for environmental cleanup, expenses for professional fees and write down of
assets associated with duplicate product lines. The nonrecurring charges
relating to the Preamble acquisition resulted from the purchase of incomplete
technology.
YEAR 2000
Prior to the restructuring of its oscilloscope operations and the closure
of its Geneva Switzerland manufacturing facility the Company had planned to
implement a new ERP (Enterprise Resource Planning) system in July 1999, which
was year 2000 compliant. As a result of the aforementioned restructuring, the
Company has decided to delay the implementation of its new ERP system until
April 2000. The Company believes its financial operating systems in New York are
currently Year 2000 compliant, however the financial operating system at the
Geneva, Switzerland location is not year 2000 compliant. Therefore, the Company
will invoke its year 2000 contingency plan with respect to the Geneva
Switzerland location. As a result of cost considerations, the Company has
decided to purchase a temporary financial operating system that is year 2000
compliant for its Geneva Switzerland location rather than upgrade the Geneva
legacy system.
The Company plans to purchase and install the new financial operating
system in Geneva during the next fiscal quarter. The Company estimates that the
total cost of this new system will be approximately $200,000. This estimate
includes software, installation, training and support. The source of these funds
will be cash generated from operations and as of March 31, 1999 no costs
relating to the new Geneva financial operating system have been incurred.
The Company continues to work with other third party suppliers to
identify exposures and obtain compliance. At this point the Company does not
anticipate any material adverse effects resulting from year 2000 problems. The
company has also determined that all its test and measurement products are
problem free with respect to their internal time clocks in the year 2000 and
beyond. This represents a forward-looking statement under the Private Securities
Litigation Reform Act of 1997. Undiscovered issues related to the Year 2000
issue could have an adverse impact.
LIQUIDITY AND CAPITAL RESOURCES
Working capital was $24.9 million at March 31, 1999 compared to $27.7
million, at June 30, 1998. The working capital ratio is currently 1.65 to 1.
In March 1999 the Company amended its unsecured multicurrency revolving
credit facility and increased its borrowing capacity to $20 million, maturing in
January 2002. At March 31, 1999 the Company had borrowed $9.8 million under the
agreement. The amended credit agreement contains financial covenants that were
met at March 31, 1999. Also in March of 1999, the Company purchased
manufacturing rights for complementary products from Iwatsu Electric Co., Ltd.
for $5.0 million, of which $2.5 million has been paid to date.
Cash flows generated from operating activities for the first nine months of
fiscal 1999 decreased $3.7 in comparison with the prior year due primarily to
lower operating earnings.
10
<PAGE> 11
LECROY CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS (CONT.)
The Company's cash together with amounts available under its multicurrency
revolving credit agreement and internally generated cash flow will be sufficient
to fund working capital and capital expenditure requirements for at least the
next twelve months.
RISK MANAGEMENT
The Company's equity investment in Iwatsu Electric Co., Ltd is subject to
the impact of foreign exchange rates and the Japanese stock market fluctuation
which, at March 31, 1999, has resulted in a $1.5 million reduction from the $7
million original cost. The change in the value of this investment, which is
deemed to be temporary, is included as part of accumulated comprehensive (loss)
in stockholders' equity and is not included in income or loss.
NEW PRONOUNCEMENTS
In June 1997, the Financial Accounting Standards Board (FASB) issued SFAS
No. 131, "Disclosures about Segments of an Enterprise and Related Information,"
which is effective for the Company beginning July 1, 1998. This statement
establishes standards for the way that public business enterprises report
information about operating segments in annual financial statements. This
statement supercedes SFAS No. 14 and amends SFAS No.94. The adoption of SFAS 131
will have no impact on the Company's financial position, results of operations
or cash flows. The Company has not yet determined the effect of FASB 131 on its
segment reporting requirements.
In February 1998, the FASB issued SFAS 132, "Employers' Disclosures about
Pensions and Other Postretirement Benefits," which revises and standardizes
pensions and other postretirement benefit plan disclosures. The Statement is
effective for fiscal years beginning after December 15, 1997. The adoption of
SFAS 132 will have no impact on the Company's financial position, results of
operations or cash flows.
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities." This statement establishes accounting and
reporting standards for derivative instruments and requires recognition of all
derivatives as assets or liabilities in the statement of financial position and
measurement of those instruments at fair value. The statement is effective for
fiscal years beginning after June 15, 1999. Management believes that adopting
this statement will not have a material impact on the financial position,
results of operations or cash flows of the Company.
11
<PAGE> 12
LECROY CORPORATION
PART I. OTHER INFORMATION
<TABLE>
<CAPTION>
ITEM 6.(a) EXHIBITS
<S> <C>
Exhibit 1.1 Amended and Restated Multicurrency Credit Agreement dated
as of March 31, 1999 between the Company , Chase Manhattan
Bank and Bank Boston
Exhibit 27 Financial Data Schedule.
PART II. OTHER INFORMATION
ITEM 6.(b) REPORTS ON FORM 8-K
No current reports on Form 8-K were filed during the quarter
ended March 31, 1999.
</TABLE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
LECROY CORPORATION
Date: May 7, 1999 By: /S/ JOHN C. MAAG
-------------------------------
John C. Maag
Vice President-Finance, Chief
Financial Officer,
Secretary and Treasurer
12
<PAGE> 1
AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT
Dated as of March 31, 1999
Among
LECROY CORPORATION
as Borrower
and
THE LENDERS NAMED HEREIN
as Lenders
and
THE CHASE MANHATTAN BANK
as Agent
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TABLE OF CONTENTS
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Section Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...................................1
SECTION 1.01. Certain Defined Terms..................................................................1
SECTION 1.02. Computation of Time Periods...........................................................12
SECTION 1.03. Accounting Terms......................................................................12
SECTION 1.04. Currency Equivalents Generally........................................................12
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES.................................13
SECTION 2.01. The Advances..........................................................................13
SECTION 2.02. Making the Advances...................................................................13
SECTION 2.03. Fees. 17
SECTION 2.04. Reduction of the Commitments..........................................................17
SECTION 2.05. Repayment of the Advances.............................................................17
SECTION 2.06. Interest on the Advances..............................................................17
SECTION 2.07. Intentionally Omitted.................................................................19
SECTION 2.08. Interest Rate Determination...........................................................19
SECTION 2.09. Prepayments...........................................................................19
SECTION 2.10. Increased Costs, Etc..................................................................19
SECTION 2.11. Payments and Computations.............................................................20
SECTION 2.12. Taxes. 21
SECTION 2.13. Sharing of Payments, Etc..............................................................25
SECTION 2.14. Evidence of Debt......................................................................25
SECTION 2.15. Currency Equivalents..................................................................26
SECTION 2.16. Voluntary Conversion or Continuation of Advance.......................................26
SECTION 2.17. Interest Rate Selection. ............................................................26
SECTION 2.18. Agent's Fees..........................................................................27
SECTION 2.19 Use of Proceeds.......................................................................27
ARTICLE III CONDITIONS OF LENDING.............................................27
SECTION 3.01. Condition Precedent to Initial Advances...............................................27
(a) Note..................................................................................27
(b) Certificate of Corporate Action by the Borrower.......................................27
(c) Incumbency and Signature Certificate of the Borrower..................................27
(d) Intentionally Omitted.................................................................27
(e) Corporate Charter, Good Standing......................................................27
(f) Opinion of Counsel for Borrower.......................................................27
(g) Financial Statement. ................................................................28
(h) Intentionally Omitted. ..............................................................28
(i) Intentionally Omitted. ..............................................................28
(j) Intentionally Omitted.................................................................28
(k) Insurance.............................................................................28
(l) Searches..............................................................................28
(m) Fees..................................................................................28
(n) Other Documents.......................................................................28
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(o) Intentionally Omitted.................................................................28
SECTION 3.02. Conditions Precedent to Each Borrowing................................................28
ARTICLE IV REPRESENTATIONS AND WARRANTIES...................................29
SECTION 4.01. Representations and Warranties of the Borrower........................................29
(a) Due Incorporation.....................................................................29
(b) Compliance with Other Agreements, Etc.................................................29
(c) Validity of Obligations...............................................................29
(d) No Pending Litigation.................................................................30
(e) Financial Statements..................................................................30
(f) Title to Assets.......................................................................30
(g) Taxes.................................................................................30
(h) ERISA.................................................................................31
(i) Subsidiaries..........................................................................31
(j) Indebtedness..........................................................................31
(k) Licenses, Permits.....................................................................31
(l) Judgments.............................................................................31
(m) Other Agreements......................................................................32
(n) Labor Disputes, Acts of God...........................................................32
(o) Investment Company....................................................................32
(p) Partner in a Partnership..............................................................32
(q) Compliance with Law. ................................................................32
(r) Initial Public Offering. ............................................................32
(s) Previous Term Loan. .................................................................32
(t) Previous Subordinated Debt. ........................................................32
(u) Year 2000.............................................................................32
SECTION 5.01. Affirmative Covenants.................................................................33
(a) Corporate Existence...................................................................33
(b) Conduct of Business...................................................................33
(c) Preservation of Properties............................................................33
(d) Maintenance of Records................................................................33
(e) Maintenance of Insurance..............................................................33
(f) Compliance with Law...................................................................33
(g) Examination of Records................................................................34
(h) Financial Reporting...................................................................34
(i) Further Acts..........................................................................36
(j) Environmental Laws....................................................................37
ARTICLE VI NEGATIVE COVENANTS.........................................38
SECTION 6.01. Negative Covenants....................................................................38
(a) Debt..................................................................................38
(b) Intentionally Omitted.................................................................39
(c) Liens.................................................................................39
(d) Leases................................................................................41
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(e) Investments...........................................................................41
(f) Restricted Payments...................................................................41
(g) Sale of Assets........................................................................41
(h) Intentionally Omitted.................................................................42
(i) Transactions with Affiliates..........................................................42
(j) Mergers, Acquisitions, Etc............................................................42
ARTICLE VII
FINANCIAL COVENANTS..............................................................................................42
SECTION 7.01. Current Ratio.........................................................................42
SECTION 7.02. Intentionally omitted.................................................................43
SECTION 7.03. Intentionally omitted. ..............................................................43
SECTION 7.04. Fixed Charge Coverage Ratio...........................................................43
SECTION 7.05. Leverage Ratio........................................................................43
SECTION 7.06. Capital Expenditures..................................................................43
SECTION 7.07. No Net Loss...........................................................................43
ARTICLE VIII EVENTS OF DEFAULT........................................43
SECTION 8.01. Events of Default.....................................................................43
ARTICLE IX THE AGENT.............................................46
SECTION 9.01. Authorization and Action..............................................................46
SECTION 9.02. Agent's Reliance, Etc.................................................................46
SECTION 9.03. Chase and Affiliates..................................................................46
SECTION 9.04. Lender Credit Decision................................................................47
SECTION 9.05. Indemnification.......................................................................47
SECTION 9.06. Successor Agent.......................................................................47
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ARTICLE X MISCELLANEOUS............................................48
SECTION 10.01. Amendments, Etc.......................................................................48
SECTION 10.02. Notices, Etc..........................................................................48
SECTION 10.03. No Waiver, Remedies...................................................................49
SECTION 10.04. Costs, Expenses and Taxes.............................................................49
SECTION 10.05. Right of Set-off......................................................................50
SECTION 10.06. Judgment..............................................................................50
SECTION 10.07. Binding Effect........................................................................50
SECTION 10.08. Assignments and Participation.........................................................51
SECTION 10.09. Consent to Jurisdiction...............................................................53
SECTION 10.10. Governing Law.........................................................................53
SECTION 10.11. Execution in Counterparts.............................................................53
SECTION 10.12. Captions..............................................................................53
SECTION 10.13. WAIVER OF JURY TRIAL..................................................................54
SECTION 10.14. Intentionally Omitted.................................................................54
SECTION 10.15. Intentionally Omitted.................................................................54
SECTION 10.16. Application of Required Prepayments...................................................54
SECTION 10.17. Confidentiality.......................................................................54
SECTION 10.18. Amendment and Restatement. ...........................................................54
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EXHIBITS
Exhibit A Form of Assignment and Acceptance
Exhibit B Form of Informal Borrowing Base Certificate
Exhibit C Form of Replacement Promissory Note
Exhibit D Intentionally Omitted
Exhibit E Intentionally Omitted
Exhibit F Form of Notice of Borrowing
Exhibit G Form of Opinion of Counsel
SCHEDULES
Schedule 1 Schedule of Lending Offices (Domestic and Eurocurrency)
Schedule 2 Schedule of Pending Litigation
Schedule 3 Schedule of Existing Debt and Guarantees
Schedule 4 Schedule of Existing Liens
Schedule 5 Schedule of Existing Investments
Schedule 6 Schedule of Transactions with Affiliates
Schedule 7 Schedule of Subsidiaries
Schedule 8 Schedule of Payment Offices for Alternative Currencies.
Schedule 9 Schedule of Commitments
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AMENDED AND RESTATED MULTICURRENCY CREDIT AGREEMENT (the "Agreement")
dated as of March 31, 1999 by and among LECROY CORPORATION, a Delaware
corporation (the "Borrower"), the banks (the "Lenders") listed on the signature
pages hereof, and THE CHASE MANHATTAN BANK ("Chase") as agent (the "Agent") for
the Lenders hereunder.
The Borrower, the Lenders and the Agent are parties to a Multicurrency
Credit Agreement dated as of December 12, 1995 (as amended from time to time,
the "Existing Credit Agreement"). The Borrower, the Lenders and the Agent have
agreed to amend and restate the Existing Credit Agreement so as to, among other
things, amend the aggregate of Lenders' Commitments and amend certain provisions
of the Existing Agreement. The Borrower, Lenders and the Agent intend that this
Amended and Restated Credit Agreement and the Amended and Restated Promissory
Notes (the "Notes", as defined below) executed in connection herewith not effect
a novation of obligations of the Borrower under the Existing Credit Agreement
and the notes issued pursuant thereto, but merely constitute a restatement, and
where applicable, an amendment to the terms governing such obligations.
RECITALS
1. The Borrower, the Agent and the Lenders are the parties to the Existing
Loan Agreement (hereinafter defined);
2. The parties to this Agreement have entered into this Agreement in order
to amend and restate the Existing Loan Agreement;
3. In consideration of the mutual promises set forth in this Agreement,
the parties to this Agreement agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"Accounts" shall mean those accounts arising out of the sale
or lease of goods or the rendition of services by the Borrower or any
of its Consolidated Subsidiaries.
"Account Debtor" shall mean the Person who is obligated on or
under an Account.
"Acquisition" means any transaction pursuant to which the
Borrower or any of its Subsidiaries (a) acquires equity securities (or
warrants, options or other rights to acquire such securities) of (i)
any corporation other than the Borrower or (ii) any corporation which
is then a Subsidiary of the Borrower, pursuant to a solicitation of
tenders therefor, or in one or more negotiated block, market or other
transactions not involving a tender offer, or a combination of any of
the foregoing, or (b) makes any corporation a Subsidiary
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of the Borrower, or causes any such corporation to be merged into the
Borrower or any of its Subsidiaries, in any case pursuant to a merger,
purchase of assets or any reorganization providing for the delivery or
issuance to the holders of such corporation's then outstanding
securities, in exchange for such securities, of cash or securities of
the Borrower or any of its Subsidiaries, or a combination thereof, or
(c) purchases all or substantially all of the business or assets of any
corporation.
"Additional Interest Period" has the meaning assigned to such
term in Section 2.06(c).
"Adjustment Period" has the meaning assigned to such term in
Section 2.06(c).
"Advance" means an advance by a Lender to the Borrower
pursuant to Article II, and refers to a Base Rate Advance or a
Eurocurrency Advance (each of which shall be a "Type" of Advance).
"Affiliate" means any Person: (a) which directly or indirectly
controls, or is controlled by, or is under common control with, the
Borrower or any of its Subsidiaries; (b) which directly or indirectly
beneficially owns or holds 5% or more of any class of voting stock of
the Borrower or any such Subsidiary; or (c) 5% or more of the voting
stock of which is directly or indirectly beneficially owned or held by
the Borrower or such Subsidiary. The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through
the ownership of voting securities, by contract, or otherwise.
"Agent" means Chase, its successors and/or permitted assigns
pursuant to Article IX hereof, as agent for the Lenders hereunder in
accordance with Article IX hereof.
"Alternative Currency" means Swiss Francs, French Francs,
German Deutsche Marks, Italian Lire, British Pounds Sterling, Japanese
Yen, Euros or any lawful currency other than Dollars mutually agreed to
by the Agent and the Borrower which is freely transferable and
convertible into Dollars.
"Applicable Eurocurrency Rate Margin" means, subject to
Section 2.06(c), for any period (a) if, as at the end of the preceding
fiscal quarter, the Leverage Ratio is less than 0.5:1.0, fifty (50)
basis points; (b) if, as at the end of the preceding fiscal quarter,
the Leverage Ratio is equal to or greater than 0.5:1.0, but less than
0.75:1.0, seventy-five (75) basis points; (c) if, as at the end of the
preceding fiscal quarter, the Leverage Ratio is equal to or greater
than 0.75:1.0 but less than 1.0:1.0, one hundred (100) basis points;
(d) if, as at the end of the preceding fiscal quarter, the Leverage
Ratio is equal to or greater than 1.0:1.0 but less than 1.25:1.1, one
hundred twenty-five (125) basis points; (e) if, as at the end of the
preceding fiscal quarter, the Leverage Ratio is equal to or greater
than 1.25:1.0 but less than 1.50:1.0, one hundred fifty (150) basis
points; if, as at the end of the preceding fiscal quarter, the Leverage
Ratio is 1.50:1.0 or greater, three hundred (300)
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basis points. Adjustments in the Applicable Eurocurrency Rate Margin
shall be effective as of the 10th Business Day following receipt by the
Agent of the Borrower's annual or quarterly financial statements, as
applicable."
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance, and such Lender's Eurocurrency Lending Office in the case
of a Eurocurrency Advance.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit A hereto.
"Base Rate" means, for any Interest Period or any other
period, a fluctuating interest rate per annum as shall be in effect
from time to time which rate per annum shall at all times be equal to
the higher of:
(a) the Prime Rate in effect from time to time; or
(b) for any day, the Federal Funds Rate plus -1/2%.
"Base Rate Advance" means an Advance which bears interest at a
rate per annum determined on the basis of the Base Rate, as provided in
Section 2.06(a)(i).
"Borrowing" means a borrowing consisting of Advances of the
same Type made on the same day by the Lenders.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and, if the applicable
Business Day relates to any Eurocurrency Advances, on which dealings
are carried on in the London interbank market, and on which banks are
open for business in the country of issue of the currency of such
Eurocurrency Advance, and, if such Eurocurrency Advance is made or to
be made in Euro or a currency that is a subunit of Euro, the place
designated for payments in Euro as shown on Schedule 8 or the place
designated, from time to time, by the Agent as the place for payments
in Euro.
"Capital Expenditures" means for any period, the Dollar amount
of gross capital expenditures determined in accordance with GAAP.
"Capital Lease" means any lease which has been or should be
capitalized on the books of the lessee in accordance with GAAP.
"Cash Flow" means, for any accounting period, the sum of (i)
profit before taxes as reflected in the financial statements prepared
in accordance with the terms of Sections 5.01(h)(i) and (iii), plus
(ii) depreciation, plus (iii) foreign exchange losses, minus Capital
Expenditures.
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"Chase" means The Chase Manhattan Bank, N.A.
"Closing Date" means the date on which this Agreement shall be
signed and delivered by all parties hereto.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Commitment" has the meaning specified in Section 2.01.
"Confidential Information" means information received under
Sections 5.01(g) or 5.01(h) and all other information that the Borrower
furnishes to the Agent or any Lender on a confidential basis, but does
not include any such information that is or becomes generally available
to the public or that is or becomes available to the Agent or such
Lender from a source other than the Borrower other than in violation of
any applicable confidentiality requirements.
"Consolidated Capital Expenditures" means Capital Expenditures
of the Borrower and its Consolidated Subsidiaries on a consolidated
basis, as determined in accordance with GAAP.
"Consolidated Current Assets" means Current Assets of the
Borrower and its Consolidated Subsidiaries on a consolidated basis, as
determined in accordance with GAAP.
"Consolidated Current Liabilities" means Current Liabilities
of the Borrower and its Consolidated Subsidiaries on a consolidated
basis, as determined in accordance with GAAP.
"Consolidated Liabilities" means liabilities of the Borrower
and its Consolidated Subsidiaries on a consolidated basis, as
determined in accordance with GAAP.
"Consolidated Subsidiary" means any Subsidiary whose accounts
are or are required to be consolidated with the accounts of the
Borrower in accordance with GAAP.
"Consolidated Tangible Net Worth" means Tangible Net Worth of
the Borrower and its Consolidated Subsidiaries on a consolidated basis,
as determined in accordance with GAAP.
"Consolidated Total Assets" means Total Assets of the Borrower
and its Consolidated Subsidiaries on a consolidated basis, as
determined in accordance with GAAP.
"Convert", "Conversion", and "Converted" each refers to a
conversion of an Advance of one Type into an Advance of another Type
pursuant to Section 2.16(a).
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"Current Assets" means all assets treated as current assets in
accordance with GAAP, excluding, however, from the determination of
current assets: loans to insiders; and amounts due from Subsidiaries
and Affiliates.
"Current Liabilities" means all liabilities treated as current
liabilities in accordance with GAAP, including without limitation (a)
all obligations payable on demand or within one year after the date in
which the determination is made, and (b) installment and sinking fund
payments required to be made within one year after the date on which
determination is made, but excluding: all such liabilities or
obligations which are renewable or extendable at the option of the
Borrower to a date more than one year from the date of determination,
loans owed to insiders, and amounts due to Subsidiaries and Affiliates.
For purposes of calculating the Current Ratio only, outstanding
Advances shall be included in the definition of Current Liabilities.
"Current Ratio" means the ratio obtained by dividing (a)
Consolidated Current Assets, by (b) Consolidated Current Liabilities.
"Debt" means (i) indebtedness for borrowed money, (ii)
obligations evidenced by bonds, debentures, notes or other similar
instruments, (iii) obligations to pay the deferred purchase price of
property or services, (iv) obligations as lessee under leases which
shall have been or should be, in accordance with GAAP, recorded as
Capital Leases, and (v) obligations under direct or indirect guaranties
in respect of, and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise to assure a creditor against loss in
respect of, indebtedness or obligations of others of the kinds referred
to in clauses (i) through (iv) above.
"Default" means any of the events specified in Sections
8.01(a) through 8.01(g), whether or not any requirement for the giving
of notice, the lapse of time, or both has been satisfied.
"Dollars" and the sign "$" each means lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule 1 hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Agent.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any State thereof, having total
assets of not less than $1,000,000,000.00, (ii) a savings and loan
association or savings bank organized under the laws of the United
States, or any State thereof, and having total assets of not less than
$250,000,000.00; and (iii) a commercial bank organized under the laws
of any other country which is a member of the OECD, or a political
subdivision of any such country and having total assets of not
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less than $1,000,000,000.00; provided that such bank is acting through
a branch or agency located in the United States.
"Environmental Laws" has the meaning assigned to such term in
Section 5.01(j)(iii).
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any corporation or trade or business
which is a member of the same controlled group of corporations (within
the meaning of Section 414(b) of the Code) as the Borrower or is under
common control (within the meaning of Section 414(c) of the Code) with
the Borrower.
"ERISA Event" means (i) the occurrence with respect to a Plan
of a reportable event, within the meaning of Section 4043 of ERISA,
unless the 30-day notice requirement with respect thereto has been
waived by the PBGC, (ii) the provision by the administrator of any Plan
of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (iii) the cessation
of operations at a facility of the Borrower or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (iv) the
withdrawal by the Borrower or an ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (v) the conditions
set forth in Section 302(f)(1)(A) and (B) of ERISA to the creation of a
lien upon property or rights to property of the Borrower or any ERISA
Affiliate for failure to make a required payment to a Plan are
satisfied; (vi) the adoption of an amendment to a Plan requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA;
or (vii) the institution by the PBGC of proceedings to terminate a
Plan, pursuant to Section 4042 of ERISA, or the occurrence of any event
or condition described in Section 4042 of ERISA that constitutes
grounds for the termination of, or the appointment of a trustee to
administer, a Plan.
"Eurocurrency Advance" means an Advance which bears interest
at a rate per annum determined on the basis of the Eurocurrency Rate,
as provided in Section 2.06(a)(ii).
"Eurocurrency Interest Period" means, for any Eurocurrency
Advance, the period commencing on the date such Advance is made,
Converted or continued and ending on the last day of the period
determined for such Advance pursuant to the provisions below and in
Section 2.11(d). The duration of the Eurocurrency Interest Period for
any Eurocurrency Advance shall be one, two, three, or six months, as
the Borrower may, upon notice received by the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the
first day of such Eurocurrency Interest Period, select in the
applicable Notice of Borrowing provided, however, that whenever the
last day of any Eurocurrency Interest Period would otherwise occur on a
day other than a Business Day,
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the last day of such Eurocurrency Interest Period shall be extended to
occur on the next succeeding Business Day, provided, that if such
extension would cause the last day of such Eurocurrency Interest Period
to occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day.
Whenever the first day of any Interest Period occurs on a day of an
initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by
the number of months equal to the number of months in such Interest
Period, such Interest Period shall end on the last Business Day of such
succeeding calendar month. The Agent shall promptly advise the Lenders
of the Eurocurrency Interest Period determined as above provided for
the Eurocurrency Advances comprising each Borrowing.
"Eurocurrency Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Eurocurrency
Lending Office" opposite its name on Schedule 1 hereto or in the
Assignment and Acceptance pursuant to which it became a Lender (or, if
no such office is specified, its Domestic Lending Office), or such
other office of such Lender as such Lender may from time to time
specify to the Borrower and the Agent.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurocurrency Rate" means, for any Eurocurrency Interest
Period for each Eurocurrency Advance comprising part of the same
Borrowing, as the case may be, an interest rate per annum equal to the
rate per annum obtained by dividing (a) the average (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum, if such average is
not such a multiple thereof) of the rate per annum at which deposits in
Dollars or in the relevant Alternative Currency are offered by the
principal office of each of the Eurocurrency Reference Banks in London,
England to prime banks in the London interbank market at 11:00 A.M.
(London time) on the Quotation Day for the currency in which such
Eurocurrency Advance is denominated for such Eurocurrency Interest
Period in an amount substantially equal to such Reference Bank's
Eurocurrency Advance comprising part of such Borrowing and for a period
equal to such Eurocurrency Interest Period by (b) a percentage equal to
100% minus the Eurocurrency Reserve Percentage, to the extent incurred,
for such Interest Period. The Eurocurrency Rate for any Eurocurrency
Interest Period for each Eurocurrency Advance comprising part of the
same Borrowing shall be determined by the Agent on the basis of
applicable rates furnished to and received by the Agent from the
Eurocurrency Reference Banks on the Quotation Day for such Interest
Period, subject, however, to the provisions of Section 2.08.
"Eurocurrency Reference Banks" means initially, Agent, and
upon execution of this Agreement by other Lenders, Agent and such other
Lenders as Agent may deem appropriate.
"Eurocurrency Reserve Percentage" of any Lender for any
Eurocurrency Interest Period for any Eurocurrency Advance means the
reserve percentage applicable two Business Days before the first day of
such Eurocurrency Interest Period (or if more than
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one such percentage shall be so applicable, the daily average of such
percentages for those days in such Eurocurrency Interest Period during
which any such percentage shall be so applicable) under regulations
issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum reserve
requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for such Lender with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Eurocurrency Interest Period.
"Event of Default" means any Default, provided that each
applicable requirement for the giving of notice, the lapse of time, or
both has been satisfied.
"Existing Loan Agreement" means the Multicurrency Credit
Agreement dated as of December 12, 1995 among Borrower, Agent, and the
lenders parties thereto, as amended from time to time.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period 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 which is
a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fiscal Year" means each period of 52 (or 53, as applicable)
consecutive calendar weeks ending on the Saturday closest to June 30 of
each year.
"Fixed Charge Coverage Ratio" means, for any period, the ratio
obtained by dividing (i) Cash Flow by (ii) Fixed Charges.
"Fixed Charges" means, for any period, accrued interest (other
than on Subordinated Indebtedness) and scheduled, required principal
payments (other than of Subordinated Indebtedness), plus, without
duplication, capital lease payments and dividend payments.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect on the applicable reporting date
with respect to any particular set of financial statements.
"General Intangibles" has the meaning assigned to such term in
the Uniform Commercial Code, as adopted in the State of New York, and
shall include, without limitation, patents, trademarks, copyrights and
substantially similar intellectual property
rights.
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"Hazardous Substance" has the meaning assigned to such term in
Section 5.01(j)(iii).
"Informal Borrowing Base Certificate" means a completed
certificate in the form of Exhibit B annexed hereto, signed by the
Chief Financial Officer of the Borrower.
"Interest Period" means a Eurocurrency Interest Period.
"Lenders" means the lenders listed on the signature pages
hereof and each Eligible Assignee that shall become a party hereto
pursuant to Section 10.08.
"Leverage Ratio" means, at any time of determination, the
ratio obtained by dividing (i) Consolidated Liabilities, by (ii)
Consolidated Tangible Net Worth.
"Lien" means any lien (statutory or otherwise), security
interest, mortgage, deed of trust, priority, pledge, charge,
conditional sale, title retention agreement, financing lease or other
encumbrance or similar right of others, or any agreement to give any of
the foregoing.
"Loan Documents" means this Agreement, each Note, and each
other document executed by the Borrower in connection with this
Agreement as each such agreement, instrument or document may be amended
from time to time.
"Majority Lenders" means at any time (i) Lenders owed at least
75% of the aggregate unpaid principal amounts of the Advances then
outstanding, or, if no Advances are then outstanding, Lenders whose
Commitments aggregate to at least 75% of the aggregate Commitments of
all of the Lenders or (ii) if there are two and only two Lenders, both
of such Lenders.
"Materially Adverse Effect" means (i) with respect to the
Borrower and its Subsidiaries, any materially adverse change in the
business, operations, condition (financial or otherwise), or assets of
the Borrower and its Subsidiaries taken as a whole, or (ii) any fact or
circumstance as to which singly or in the aggregate, the Borrower has
reason to believe there is a reasonable possibility of (a) a materially
adverse change described in clause (i), or (b) the inability of the
Borrower to perform in any material respect its obligations hereunder
or under the other Loan Documents.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions, such plan being maintained pursuant
to one or more collective bargaining agreements.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (i) is maintained for
employees of the Borrower or an ERISA
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Affiliate and at least one Person other than the Borrower and its ERISA
Affiliates or (ii) was so maintained and in respect of which the
Borrower or an ERISA Affiliate could have liability under Section 4064
or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Note" or "Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit C hereto, payable to the order of
the respective Lenders.
"Notice of Borrowing" has the meaning specified in Section
2.02.
"Obligations" means the obligations of the Borrower arising
under this Agreement or the other Loan Documents.
"OECD" means the Organization for Economic Cooperation and
Development.
"Other Taxes" has the meaning specified in Section 2.12(b).
"Payment Office" means, for Dollars, the principal office of
Agent in New York City, located on the date hereof at 270 Park Avenue,
New York, New York 10017, and, for any Alternative Currency, such
office of Agent as shall be from time to time selected by the Agent and
notified by the Agent in writing to the Borrower and the Lenders. The
Payment Offices of Agent with respect to Alternative Currencies are set
forth on Schedule 8, as such Schedule may be amended by Agent from time
to time on written notice to the Borrower and Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Permitted Indebtedness" has the meaning assigned to such term
in Section 6.01(a).
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company,
or other entity, or a government or any political subdivision or agency
thereof.
"Plan" means any employee benefit or other plan established or
maintained, or to which contributions have been made, by the Borrower
or any ERISA Affiliate and which is covered by Title IV of ERISA or to
which Section 412 of the Code applies.
"Previous Subordinated Debt" means all Debt incurred pursuant
to the Securities Purchase Agreement, dated March 28, 1995 evidenced by
(i) the Subordinated Debenture dated March 28, 1995 made by LeCroy
Corporation to Global Private Equity II Limited Partnership; (ii) the
Subordinated Debenture dated March 28, 1995 made by LeCroy Corporation
to Golden Gate Development and Investment Limited Partnership; (iii)
the Subordinated Debenture dated March 28, 1995 made by LeCroy
Corporation to Advent International Investors II Limited Partnership;
(iv) the Subordinated Debenture dated
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March 28, 1995 made by LeCroy Corporation to Innovent Capital Limited
Partnership; and (v) the Subordinated Debenture dated March 28, 1995
made by LeCroy Corporation to Needham Capital Partners, L.P.
"Previous Term Loan" means the loan made pursuant to Term Loan
Agreement dated as of January 23, 1995 among Borrower, Agent, and the
lenders parties thereto.
"Prime Rate" means that rate of interest from time to time
announced by Chase at its principal office as its prime commercial
lending rate.
"Prohibited Transaction" means any transaction set forth in
Section 406 of ERISA or Section 4975 of the Code.
"Quotation Day" means, in respect of the determination of the
Eurocurrency Rate for any Eurocurrency Interest Period for any
Eurocurrency Advance in Dollars or any Alternative Currency, the day on
which quotations would ordinarily be given by prime banks in the London
interbank market for deposits in the currency in which such
Eurocurrency Advance is denominated for delivery on the first day of
such Eurocurrency Interest Period; provided, that if quotations would
ordinarily be given on more than one date, the Quotation Day for such
Eurocurrency Interest Period shall be the last of such dates.
"Real Property" has the meaning assigned to such term in
Section 5.01(j)(i).
"Reference Banks" means the Eurocurrency Reference Banks.
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System as the same may be amended or supplemented
from time to time.
"Register" has the meaning specified in Section 10.08(c).
"Remedial Work" has the meaning assigned to such term in
Section 5.01(j)(ii).
"Required Financial Statement" has the meaning assigned to
such term in Section 2.06(c).
"Restricted Payment" means any payment or prepayment of
principal or interest on account of Subordinated Indebtedness or any
purchase, defeasance, redemption, retirement or acquisition of any
principal or interest on such Subordinated Indebtedness except for,
other than during the continuance of an Event of Default, regularly
scheduled payments (or regularly scheduled redemptions, as the case may
be) of principal and interest on account of Subordinated Indebtedness
in accordance with the terms of a subordinated debt indenture or
agreement or substantially similar document previously consented to in
writing by the Majority Lenders.
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"Subordinated Indebtedness" means all unsecured Indebtedness
of the Borrower which shall have been subordinated to all Indebtedness
of the Borrower hereunder and under the Notes and to all other
Indebtedness owed to the Lenders pursuant to a subordinated debt
indenture or agreement or substantially similar document signed by the
holder of such Indebtedness upon and otherwise containing terms and
conditions reasonably satisfactory to the Majority Lenders.
"Subsidiary" means, as to any Person, any corporation or other
entity of which at least a majority of the securities or other
ownership interests having ordinary voting power (absolutely or
contingently) for the election of directors or other persons performing
similar functions are at the time owned directly or indirectly by such
Person.
"Tangible Net Worth" means the excess of total assets over
total liabilities, excluding, however, from the determination of total
assets: goodwill; patents, copyrights and trademarks; trade names;
licenses; organizational expenses; and unamortized debt discount, all
as determined in accordance with GAAP.
"Taxes" has the meaning specified in Section 2.12(a).
"Termination Date" means January 31, 2002, or the earlier date
of termination in whole of the Commitments pursuant to Section 2.04 or
8.01.
"Total Assets" means all assets treated as assets in
accordance with GAAP.
"Type" means, with reference to any Advance, its nature as a
Base Rate Advance or a Eurocurrency Advance.
"Unfunded Vested Liabilities" means, with respect to any Plan,
the amount (if any) by which the present value of all vested benefits
under the Plan exceeds the fair market value of all Plan assets
allocable to such benefits, as determined on the most recent valuation
date of the Plan and in accordance with the provisions of ERISA for
calculating the potential liability of the Borrower or any ERISA
Affiliate to PBGC or the Plan under Title IV of ERISA.
"United States" and "U.S." each means United States of
America.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" the words "to" and "until" each
means "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP.
SECTION 1.04. Currency Equivalents Generally. For all purposes
of this Agreement other than Article II, the equivalent in any Alternative
Currency of an amount in
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Dollars shall be determined at the rate of exchange quoted by Chase in New York
City, at 9:00 A.M. (New York City time) on the date of determination, to prime
banks in New York City for the spot purchase in the New York foreign exchange
market of such amount of Dollars with such Alternative Currency.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make Advances to the Borrower
from time to time on any Business Day during the period from the date hereof
until the Termination Date in an aggregate amount not to exceed at any time
outstanding the amount set forth opposite such Lender's name on Schedule 9
hereto or, if such Lender has entered into any Assignment and Acceptance, set
forth as such Lender's Commitment in the Register maintained by the Agent
pursuant to Section 10.08(c) (such Lender's "Commitment"), or the equivalent
thereof, as such amount may be reduced pursuant to Section 2.04. As of the date
hereof, the aggregate of all Lenders' Commitments is TWENTY MILLION AND 00/100
DOLLARS ($20,000,000.00) from and including the date hereof through and
including June 30, 2000, SEVENTEEN MILLION AND 00/100 DOLLARS ($17,000,000.00)
from and including July 1, 2000 through and including September 30, 2000 and
FIFTEEN MILLION AND 00/100 DOLLARS ($15,000,000.00) from and including October
1, 2000 through and including the Termination Date. Subject to the terms of
Section 2.02(c), each Borrowing shall be in an aggregate amount not less than
$100,000.00 (or the equivalent thereof in any Alternative Currency) or an
integral multiple of $25,000.00 (or the equivalent thereof in any Alternative
Currency) in excess thereof and shall consist of Advances of the same Type made
in the same currency on the same day by the Lenders ratably according to their
respective Commitments. Within the limits of each Lender's Commitment, the
Borrower may borrow, prepay pursuant to Section 2.09 and reborrow under this
Section 2.01(a). For purposes of this Section 2.01(a) and all other provisions
of this Article II, the equivalent in Dollars of any Alternative Currency or the
equivalent in any Alternative Currency of Dollars or of any other Alternative
Currency shall be determined in accordance with Section 2.15. Subject to Section
10.08, the parties to this Agreement may make additional Lenders parties hereto
by replacing the initial (or then applicable) signature page with a substitute
signature page executed by the Borrower, the Agent, and each Lender. The
Commitment of each Lender shall be in the amount set forth on Schedule 9 with
respect to each Lender, as such Schedule 9 may be amended (or replaced by the
Agent) from time to time to reflect the Commitment of each Lender made a party
hereof. Any Lender which becomes a signatory to this Agreement shall be entitled
to all of the rights and obligations of a Lender under this Agreement and the
other Loan Documents.
SECTION 2.02. Making the Advances. (a) Subject to the terms of Section
8.01, each Borrowing shall be made on notice, given:
(x) not later than 11:00 A.M. (New York City time) on the same Business
Day as the proposed Borrowing of a Base Rate Advance in Dollars,
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(y) not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the requested date of a proposed borrowing of a
Eurocurrency Advance in Dollars, and
(z) not later than the fifth Business Day before the requested date of
a proposed Borrowing in an Alternative Currency,
by the Borrower to the Agent, by facsimile, telex or cable, confirmed
immediately in writing, in substantially the form of Exhibit F hereto (each, a
"Notice of Borrowing"), specifying therein the requested (i) Type of Advance
comprising such Borrowing, (ii) date of such Borrowing, (iii) aggregate amount
of such Borrowing, (iv) currency of such Borrowing and (v) Eurocurrency Interest
Period for each Eurocurrency Advance to be made as part of such Borrowing. Each
Advance denominated in an Alternative Currency shall be a Eurocurrency Advance.
The Agent shall promptly notify each Lender of each request for an Advance.
In the case of a proposed Borrowing comprised of Eurocurrency Advances
in an Alternative Currency, the obligation of each Lender to make its
Eurocurrency Advance in the requested Alternative Currency as part of such
Borrowing is subject to the confirmation by such Lender to the Agent not later
than the fourth Business Day before the requested date of such Borrowing that
such Lender agrees to make its Eurocurrency Advance in the requested Alternative
Currency, which confirmation shall be notified immediately by the Agent to the
Borrower. If any Lender shall not have so provided to the Agent such
confirmation, the Agent shall promptly notify the Borrower and each Lender that
a Lender has not provided such confirmation, whereupon the Borrower may, by
notice to the Agent not later than the third Business Day before the requested
date of such Borrowing, withdraw the Notice of Borrowing relating to such
requested Borrowing. If the Borrower does so withdraw such Notice of Borrowing,
the Borrowing shall not occur and the Agent shall promptly so notify each
Lender. If the Borrower does not so withdraw such Notice of Borrowing, the Agent
shall promptly so notify each Lender and such Notice of Borrowing shall be
deemed to be a Notice of Borrowing which requests a Borrowing comprised of
Eurocurrency Advances in an aggregate amount in Dollars equivalent, determined
in accordance with Section 2.15, to the amount of the originally requested
Borrowing in an Alternative Currency; and in such notice by the Agent to each
Lender the Agent shall state such aggregate equivalent amount of such Borrowing
in Dollars and such Lender's ratable portion of such Borrowing.
Each Lender shall, before 12:00 Noon (New York City time) on the date
of such Borrowing, make available for the account of its Applicable Lending
Office to the Agent (i) in the case of a Borrowing in Dollars, at such account
maintained at the Payment Office for Dollars as shall have been notified by the
Agent to the Lenders prior thereto and in same day funds, such Lender's ratable
portion of such Borrowing in Dollars, and (ii) in the case of a Borrowing in an
Alternative Currency, at such account maintained at the Payment Office for such
Alternative Currency as shall have been notified by the Agent to the Lenders
prior thereto and in same day funds, such Lender's ratable portion of such
Borrowing in such Alternative Currency. After the Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in Article
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III, the Agent will make such funds available to the Borrower at the aforesaid
applicable Payment Office.
(b) Anything in subsection (a) above to the contrary notwithstanding,
(i) if any Lender shall notify the Agent and the Borrower that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or that any central bank or other
governmental authority asserts that it is unlawful, for such Lender or its
Eurocurrency Lending Office to perform its obligations hereunder to make
or maintain Eurocurrency Advances in Dollars or in such Alternative
Currency, as the case may be, or to fund or maintain Eurocurrency Advances
in Dollars or in such Alternative Currency, as the case may be, hereunder,
the amount of such requested Borrowing shall be deemed to be reduced by
such Lender's ratable share thereof, the obligation of such Lender to make
Eurocurrency Advances in Dollars or in such Alternative Currency, as the
case may be, shall be terminated and the Borrower shall forthwith upon its
receipt of such notice from such Lender, prepay (either immediately, or,
if delay does not cause any Lender to be in violation of applicable law,
at the end of the then current Eurocurrency Interest Period) the
outstanding principal amount of all Eurocurrency Advances in Dollars or in
such Alternative Currency, as the case may be, of such Lender together
with interest accrued thereon to the date of such prepayment, provided
that, before giving any such notice to the Agent and the Borrower, each
Lender agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Eurocurrency Lending Office if the making of such designation would avoid
such unlawfulness or the assertion thereof and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender and provided further, subject to the provisions of Sections 2.16(a)
and 10.04(b), any amount required to be prepaid may be converted to a Base
Rate Advance;
(ii) if, in the event that there is more than one Eurocurrency
Reference Bank, fewer than two Eurocurrency Reference Banks furnish timely
information to the Agent for determining the Eurocurrency Rate for any
Eurocurrency Advances comprising any requested Borrowing in Dollars or in
any Alternative Currency, the right of the Borrower to make such Borrowing
or any subsequent Borrowing in Dollars or in such Alternative Currency, as
the case may be, shall be suspended until the Agent shall notify the
Borrower and the Lenders that the circumstances causing such suspension no
longer exist, provided that the Agent agrees to take reasonable steps, at
no expense to Agent, in an attempt to obtain such information from the
requisite number of Eurocurrency Reference Banks; and
(iii) if, at least one Business Day before the date of any requested
Borrowing in Dollars or in any Alternative Currency, either (A) two or
more Eurocurrency Reference Banks notify the Agent, or, if Chase is the
sole Eurocurrency Reference Bank Chase determines, that deposits are not
being offered in the London interbank market in Dollars or in such
Alternative Currency, as the case may be, for the applicable Eurocurrency
Interest Period in amounts substantially equal to the amount of such
Borrowing or (B) the Majority Lenders notify the Agent that the
Eurocurrency Rate for Eurocurrency Advances
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comprising such Borrowing will not adequately reflect the cost to such
Majority Lenders of making, funding or maintaining their respective
Eurocurrency Advances for such Borrowing, the right of the Borrower to
make such Borrowing or any subsequent Borrowing in Dollars or in such
Alternative Currency, as the case may be, shall be suspended until the
Agent shall notify the Borrower and the Lenders that the circumstances
causing such suspension no longer existing.
(c) Anything in subsection (a) above to the contrary notwithstanding,
the Borrower may not select Eurocurrency Advances for any Borrowing unless the
aggregate amount of such Borrowing is at least $500,000 (or the equivalent
thereof in any Alternative Currency) and an aggregate multiple of $250,000 (or
the equivalent thereof in any Alternative Currency), and not more than six
separate Borrowings may be outstanding at any time.
(d) Each Notice of Borrowing shall be irrevocable and binding on the
Borrower. In the case of any Borrowing which the related Notice of Borrowing
specifies is to be comprised of Eurocurrency Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified in such
Notice of Borrowing for such Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss (excluding loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(e) Unless the Agent shall have received notice from a Lender prior to
the date of any Borrowing that such Lender will not make available to the Agent
such Lender's ratable portion of such Borrowing, the Agent may assume that such
Lender has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.02 and the Agent
may, in reliance upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such Lender shall not
have so made such ratable portion available to the Agent, such Lender and the
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this Agreement.
(f) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make the Advance to
be made by such other Lender on the date of any Borrowing.
(g) If, on the date of any Borrowing, any principal amount of
any Advances previously made by a Lender participating in such Borrowing shall
be due and payable to such
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Lender hereunder, such Lender shall, up to an amount equal to such principal
amount and upon fulfillment of the applicable conditions set forth in Article
III, make its Advance on the occasion of such Borrowing by applying the proceeds
of such Advance to the repayment of such principal amount. The amount, if any,
by which the Advance to be made by such Lender on the occasion of such Borrowing
shall exceed such repaid principal amount shall be made available by such Lender
in accordance with subsection (a) of this Section 2.02.
SECTION 2.03. Fees. (a) The Borrower agrees to pay to the Agent for the
account of each Lender a commitment fee on the average daily unused portion of
such Lender's Commitment from date of this Agreement, in the case of each Lender
which is a party to this Agreement on the date of this Agreement and from the
effective date specified in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender, until the Termination Date,
payable in arrears on the last day of each March, June, September and December
during the term of such Lender's Commitment, such payments commencing March 31,
1999, and continuing quarterly thereafter and on the Termination Date, at the
rate of 3/16 of 1% per annum.
(b) The Borrower agrees to pay to the Agent and Lender all other fees
due and payable to the Agent and/or Lender on or before Closing Date.
SECTION 2.04. Reduction of the Commitments. (a) The Borrower shall have
the right, upon at least three Business Days' notice to the Agent, to terminate
in whole or reduce ratably in part the unused portions of the respective
Commitments of the Lenders, provided, however, that each partial reduction shall
be in the aggregate amount of $500,000 or an integral multiple of $250,000 in
excess thereof.
(b) Pursuant to the terms of this Agreement the respective Commitments
of the Lenders shall automatically be reduced as set forth on Schedule 9 hereto
on July 1, 2000 and October 1, 2000.
SECTION 2.05. Repayment of the Advances. The Borrower shall repay the
principal amount of all Advances on the Termination Date. Notwithstanding the
foregoing, on July 1, 2000, Borrower shall repay any outstanding advances
greater than SEVENTEEN MILLION AND 00/100 DOLLARS ($17,000,000.00) and on
October 1, 2000, Borrower shall repay any outstanding advances greater than
FIFTEEN MILLION AND 00/100 DOLLARS ($15,000,000.00), in each instance as
provided in this Agreement.
SECTION 2.06. Interest on the Advances. (a) The Borrower shall pay to
each Lender, in arrears, interest on the unpaid principal amount of each Advance
made by such Lender from the date of such Advance until such principal amount
shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. If such Advance is a Base Rate Advance, a rate
per annum equal at all times to the Base Rate in effect from time to time,
payable quarterly, in arrears, on the last day of each March, June,
September and
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December and on the date such Base Rate Advance shall be Converted or
paid in full.
(ii) Eurocurrency Advances. If such Advance is a Eurocurrency Advance,
a rate per annum equal at all times during the Interest Period for such
Advance to the sum of (x) the Eurocurrency Rate for such Interest Period
and (y) the Applicable Eurocurrency Rate Margin in effect from time to
time, payable, in arrears, on the last day of such Interest Period and if
such Interest Period has a duration of more than three months, then on
each day which occurs during such Interest Period every three months from
the first day of such Interest Period.
(b) Default Interest. The Borrower shall pay interest on the unpaid
principal amount of each Advance that is not paid on or before the 15th day
following the date when due (with respect to payments due prior to the
Termination Date) and on all Advances not paid on the Termination Date, and on
the unpaid amount of all interest, fees and other amounts payable hereunder that
is not paid on or prior to the 15th day following the date when due, payable on
demand, at a rate per annum equal at all times to (i) in the case of any amount
of principal, 3% per annum above the rate per annum required to be paid on such
Advance immediately prior to the date on which such amount became due and (ii)
in the case of all other amounts, 3% per annum above the Base Rate in effect
from time to time.
(c) Additional and Adjusted Interest. In the event that any
financial statement is not timely delivered to the Agent in all respects in
compliance with Section 5.01(h)(i) or Section 5.01(h)(iii) (each, a "Required
Financial Statement"), and if upon actual receipt of such Required Financial
Statement the Agent shall determine that the Applicable Eurocurrency Rate Margin
in effect with respect to each Eurocurrency Advance outstanding during the
period (the "Additional Interest Period") commencing on the 10th Business Day
following the day when such Required Financial Statement was due and terminating
on the earlier to occur of (i) the 10th Business Day following the day when such
Required Financial Statement is actually received by Agent, or (ii) the first
day of the Adjustment Period (hereinafter defined), would have been greater than
the Applicable Eurocurrency Rate Margin which was actually in effect during the
Additional Interest Period, then, without prejudice to any other rights of the
Agent or Lenders under this Agreement or the other Loan Documents as a result of
Borrower's failure to timely deliver such Required Financial Statement, Borrower
shall pay to the Agent for the account of the Lenders, promptly after demand by
the Agent, but in any event not later than the next day on which a payment of
interest is due under this Agreement, as additional interest, an amount equal to
the additional interest which would have accrued on each outstanding
Eurocurrency Advance during the Additional Interest Period had each Applicable
Margin been adjusted in accordance with the terms of this Agreement upon timely
receipt of such Required Financial Statement on the date when it was due. In the
event that such Required Financial Statement is not delivered to Agent on or
prior to the 30th day after the same is due (the "Adjustment Date"), then,
without prejudice to any other rights of the Agent or Lenders under this
Agreement or the other Loan Documents as a result of Borrower's failure to
timely deliver such Required Financial Statement, during the period (the
"Adjustment Period") commencing on the Adjustment Date, and terminating on the
10th Business Day following the day when such Required Financial Statement is
actually received by Agent, the
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term "Applicable Eurocurrency Rate Margin" as used herein shall mean 1.0%. Agent
shall deliver to the Borrower, a certificate as to any amounts payable pursuant
to this subparagraph, explaining in reasonable detail the computation thereof,
which certificate shall effect a rebuttable presumption as to the accuracy
thereof.
SECTION 2.07. Intentionally Omitted.
SECTION 2.08. Interest Rate Determination. (a) Each Eurocurrency
Reference Bank agrees to furnish to the Agent timely information for the purpose
of determining each Eurocurrency Rate. If any one or more of such Reference
Banks shall not furnish such timely information to the Agent for the purpose of
determining any such interest rate, the Agent shall, subject to Section
2.02(b)(ii), determine such interest rate on the basis of timely information
furnished by the remaining Eurocurrency Reference Banks, as the case may be.
(b) The Agent shall give prompt notice to the Borrower and the Lenders
of the applicable interest rate determined by the Agent for purposes of Section
2.06(a) or (b).
(c) From the date of this Agreement up to and including March 31, 2001,
a minimum of $5,000,000.00 shall be interest rate protected.
SECTION 2.09. Prepayments. (a) The Borrower may prepay Advances, in
aggregate multiples of $100,000.00 on not less than three (3) Business Days
prior written notice with respect to Eurocurrency Advances, or on notice
provided not later than 11 A.M. New York City time on the day of the prepayment
with respect to Base Rate Advances, (each of which notices may be given by
facsimile transmission), provided that the Borrower shall pay all sums required
to be paid pursuant to Section 10.04(b) together with each such principal
prepayment. Any notice of prepayment shall be binding on the Borrower and
irrevocable, and the Borrower shall make such prepayment on the day set forth in
the notice of prepayment, which shall be a Business Day.
(b) If, on the last day of any Eurocurrency Interest Period for any
Eurocurrency Advances comprising the same Borrowing, the equivalent in Dollars
of the aggregate principal amount of all Advances then outstanding exceeds the
total of the Commitments, the Borrower shall, within two (2) Business Days after
notification from the Agent, prepay an aggregate principal amount of such
Advances ratably to the Lenders in an amount at least equal to such excess, with
accrued interest to the date of such prepayment on the principal amount prepaid.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements, in the case of Eurocurrency Advances, included
in the Eurocurrency Reserve Percentage) in or in the interpretation of any law,
treaty, official directive or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Lender (other than Taxes on net income of any Lender) of agreeing to
make or making, funding or maintaining Eurocurrency Advances, then the Borrower
shall (provided that (i) the requirements of this
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provision or similar requirements are imposed ratably upon similarly situated
customers of such Lender) from time to time, within two (2) Business Days after
demand by such Lender given within 90 days following such Lender's determination
that such increased cost has been incurred (with a copy of such demand to the
Agent), either (i) pay to the Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such increased cost (without
duplication for amounts on account of the same increase of cost to the extent
already payable pursuant to Section 2.10(b)), or (ii) subject to the provisions
of Section 10.04(b), prepay all outstanding Eurocurrency Advances owed to such
Lender; provided that, before making any such demand, each Lender agrees to use
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office or Payment
Office if the making of such a designation would avoid the need for, or reduce
the amount of, such additional cost and would not, in the judgment of such
Lender, be otherwise disadvantageous to such Lender. Agent shall deliver to
Borrower a certificate in reasonable detail as to the amount of such increased
cost, and the delivery of such certificate shall effect a rebuttable presumption
as to the accuracy thereof.
(b) If any Lender determines that compliance with any law, treaty,
official directive or regulation or any guideline or request from any central
bank or other governmental authority (whether or not having the force of law)
affects or would affect the amount of capital required or expected to be
maintained by such Lender or any corporation controlling such Lender and that
the amount of such capital is increased beyond a level required on the Closing
Date by or based upon the existence of such Lender's commitment to lend
hereunder and other commitments of this type, and provided that any such
increased capital requirement is not reflected in the computation of the Base
Rate or the Eurocurrency Rate, then, within two (2) Business Days after demand
by such Lender (with a copy of such demand to the Agent) given within 90 days
following such Lender's determination that such increased capital requirement
has been imposed, the Borrower shall (provided that the requirements of this
provision or similar requirements are imposed ratably upon similarly situated
customers of such Lender) within two Business Days after notice either (i) pay
to the Agent for the account of such Lender, from time to time, as specified by
such Lender, additional amounts sufficient to compensate such Lender or such
corporation in the light of such circumstances, to the extent that such Lender
reasonably determines such increase in capital to be allocable to the existence
of such Lender's commitment to lend hereunder (without duplication for amounts
on account of the same increase in capital to the extent already payable
pursuant to Section 2.10(a)), or (ii) subject to the provisions of Section
10.04(b), prepay all affected Advances owed to such Lender. Agent shall deliver
to Borrower a certificate in reasonable detail as to such amounts submitted to
the Borrower and the delivery of such certificate shall effect a rebuttable
presumption as to the accuracy thereof.
SECTION 2.11. Payments and Computations. (a) The Borrower
shall make each payment hereunder, except with respect to principal of, interest
on, and other amounts relating to, Advances denominated in an Alternative
Currency, not later than 11:00 A.M. (New York City time) on the day when due in
Dollars to the Agent in same day funds by deposit of such funds to the Agent's
account maintained at the Payment Office for Dollars in New York City. The
Borrower shall make each payment hereunder with respect to principal of,
interest on, and other amounts relating to Advances denominated in an
Alternative Currency not later than 11:00 A.M. (at the Payment Office for such
Alternative Currency) on the day when due in such Alternative
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Currency to the Agent in same day funds by deposit of such funds to the Agent's
account maintained at such Payment Office. The Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest or commitment fees ratably, in the proportion that such Lender's Loans
to which the payment applies bears to the total of all Lenders' Loans to which
the payment applies, (other than amounts payable pursuant to Section 2.10 or
2.12) to the Lenders for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to
any Lender to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 10.08(d), from and after
the effective date specified in such Assignment and Acceptance, the Agent shall
make all payments hereunder in respect of the interest assigned thereby to the
Lender assignee thereunder, and the parties to such Assignment and Acceptance
shall make all appropriate adjustments in such payments for periods prior to
such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder, to charge from time
to time against any or all of the Borrower's accounts with such Lender any
amount so due. Each such Lender shall promptly notify the Borrower of any such
action, provided however, that failure to so notify shall not affect the
validity of such action.
(c) All computations of interest shall be made by the Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or commitment fees are payable. Each determination by the
Agent of an interest rate hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d) In determining the duration of Interest Periods under this
Agreement, (i) Interest Periods commencing on the same date for Advances
comprising part of the same Borrowing shall be of the same duration, (ii)
whenever the last day of any Interest Period would otherwise occur on a day
other than a Business Day, the last day of such Interest Period shall occur on
the next succeeding Business Day, provided, that if such extension of time would
cause the last day of any Eurocurrency Interest Period to occur in the next
following calendar month, such last day shall occur on the next preceding
Business Day, and (iii) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(e) Whenever any payment hereunder shall be stated to be due on a day
other than a Business Day, such payment shall be made on the next succeeding
Business Day, and such extension of time shall in such case be included in the
computation of payment of interest or commitment fee, as the case may be,
provided, that, if such extension would cause payment of interest on or
principal of Eurocurrency Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business Day.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower or the
Agent hereunder shall be made, in accordance with Section 2.11, free and clear
of and without
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deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding,
(i) taxes, levies, imposts, duties, charges, deductions or withholdings
imposed on or with respect to the net income of the Agent or any Lender
and (ii) franchise or doing business taxes, levies, imposts, duties,
charges, deductions or withholdings imposed on the Agent or any Lender, in
each case by any jurisdiction under the laws of which the Agent or such
Lender or its Applicable Lending Office is organized, managed, controlled
or otherwise subject to tax other than as a result of the transactions
contemplated hereunder or by any other Loan Document (or any political
subdivision of any such jurisdiction),
(ii) in the case of any assignment by a Lender to an Eligible Assignee
pursuant to Section 10.08, or any change by a Lender of an Applicable
Lending Office in one jurisdiction to an Applicable Lending Office in
another jurisdiction, any excess in the withholding tax applicable to such
Eligible Assignee, or such new Applicable Lending Office, over the
withholding tax (other than any withholding tax excluded from the
definition of Taxes under clause (i) or this clause (ii) of Section
2.12(a)) applicable to the former Lender, or the former Applicable Lending
Office, in each case as determined under laws (including, without
limitation, any treaty, law, rule, regulation or determination) applicable
to the former Lender and such Eligible Assignee, or the former Applicable
Lending Office and such new Applicable Lending Office, and in effect on
the date of such assignment, or such change in Applicable Lending Office,
but not including any increase in withholding tax resulting from any
subsequent change in such laws (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower or the Agent shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender or the Agent, (i) the sum payable by the Borrower
shall be increased as may be necessary so that after the Borrower or the
Agent has made all required deductions (including deductions applicable to
additional sums payable under this Section 2.12) such Lender or the Agent
(as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower or the Agent
shall make such deductions and (iii) the Borrower or the Agent shall pay
the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies which arise from any payment made by the Borrower or by the Agent
hereunder or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement (hereinafter referred to as "Other Taxes").
(c) The Borrower will within thirty days after demand, indemnify each
Lender and the Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any
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Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.12) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from the
date such Lender or the Agent (as the case may be) makes written demand
therefor. The applicable Lender shall furnish to Borrower a certificate, in
reasonable detail, setting forth such Lender's calculation as to the amount of
Taxes or Other Taxes paid by such Lender, which certificate shall effect a
rebuttable presumption as to the accuracy thereof.
(d) Within 30 days after the date of any payment by the Borrower of Taxes,
the Borrower will furnish to the Agent, at its address referred to in Section
8.02, the original or a certified copy of a receipt evidencing payment thereof.
If no Taxes are payable in respect of payments by the Borrower hereunder, the
Borrower will furnish to the Agent, at such address, documentary evidence
reasonably satisfactory to Agent, demonstrating that such payment is exempt from
or not subject to Taxes. In the event of a change in circumstances or law
affecting the conclusions stated in any such documentary evidence, further
documentary evidence reasonably acceptable to the Agent shall be delivered to
the Agent by the Borrower.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States (a "Non-U.S. Lender"), on or prior to the date of its execution
and delivery of this Agreement in the case of each initial Lender and on the
date of the Assignment and Acceptance pursuant to which it becomes a Lender in
the case of each other Lender, and from time to time thereafter if requested in
writing by the Borrower (but only so long as such Lender remains lawfully able
to do so), shall provide the Borrower with Internal Revenue Service form 1001 or
4224, as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade
or business in the United States. If the form provided by a Lender at the time
such Lender first becomes a party to this Agreement indicates a United States
interest withholding tax rate in excess of zero, withholding tax at such rate
shall be considered excluded from "Taxes" as defined in Section 2.12(a).
(f) For any period with respect to which a Lender has failed to provide
the Borrower with the appropriate form described in Section 2.12(e) (other than
if such failure is due to a change in law occurring subsequent to the date on
which a form originally was required to be provided, or if such form otherwise
is not required under the first sentence of subsection (e) above), such Lender
shall not be entitled to indemnification under Section 2.12(a) with respect to
Taxes imposed by the United States; provided, however, that should a Lender
become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as the Lender shall reasonably
request at no expense to the Borrower to assist the Lender to recover such
Taxes.
(g) In the event that a Lender that originally provided such form as may
be required under Section 2.12(e) thereafter ceases to qualify for complete
exemption from United
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States withholding tax, such Lender may, subject to Section 10.08, assign its
interest under this Agreement to any assignee and such assignee shall be
entitled to the same benefits under this Section 2.12 (and subject to the terms
of Sections 2.12(a)(ii), 2.12(e), 2.12(f), 2.12(i), 2.12(j) and 2.12(k)) as the
assignor provided that the rate of United States withholding tax applicable to
such assignee shall not exceed the rate then applicable to the assignor.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.12 shall survive the payment in full of principal and interest
hereunder.
(i) Each Lender agrees to use reasonable efforts (including reasonable
efforts to change its Applicable Lending Office or Payment Office) to avoid the
imposition of any Taxes or payments hereunder; provided, however, that such
efforts shall not cause the imposition on such Lender of any additional costs or
legal or regulatory burden or require any change in such Lender's tax planning
and management policies.
(j) If the Borrower makes any additional payment to any Lender pursuant to
this Section 2.12 in respect of any Taxes, and such Lender determines that it
has received (i) a refund of such Taxes or (ii) a credit against or relief or
remission for, or a reduction in the amount of, any tax or other governmental
charge solely as a result of any deduction or credit for any Taxes with respect
to which it has received payments under this Section 2.12, such Lender shall, to
the extent that it can do so without prejudice to the retention of such refund,
credit, relief, remission or reduction, pay to the Borrower such amount as such
Lender shall have determined to be attributable to the deduction or withholding
of such Taxes. If such Lender later determines that it was not entitled to such
refund, credit, relief, remission or reduction to the full extent of any payment
made pursuant to the first sentence of this Section 2.12(j), the Borrower shall
upon demand of such Lender promptly repay the amount of such overpayment. Any
determination made by such Lender pursuant to this Section 2.12(j) shall in the
absence of bad faith or manifest error effect a rebuttable presumption as to the
accuracy thereof, and nothing in this Section 2.12(j) shall be construed as
requiring the Lender to conduct its business or to arrange or alter in any
respect its tax or financial affairs so that it is entitled to received such a
refund, credit or reduction or as allowing any person to inspect any records,
including tax returns, of any Lender.
(k) The Borrowers shall not be required to pay any additional amounts to
any Non-U.S. Lender in respect of United States Federal withholding tax pursuant
to this Section 2.12 to the extent that (i) the obligation to withhold amounts
with respect to United States Federal withholding tax existed on the date such
Non-U.S. Lender became a party to this Agreement or, with respect to payments to
a different lending office designated by the Non-U.S. Lender as its applicable
lending office (a "New Lending Office"), the date such Non-U.S. Lender
designated such New Lending Office with respect to any Advance; provided,
however, that this clause (k) shall not apply to any transferee or New Lending
Office as a result of an assignment, transfer or designation made at the request
of the Borrower; and provided further, however, that this clause (k) shall not
apply to the extent the indemnity payment or additional amounts any transferee,
or Lender through a New Lending Office, would be entitled to received without
regard to this clause (k) do not exceed the indemnity payment or additional
amounts that the Person making the
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assignment or transfer to such transferee, or Lender making the designation of
such New Lending Office, would have been entitled to receive in the absence of
such assignment, transfer or designation; or (ii) the obligation to pay such
additional amounts would not have arisen but for a failure by such Non-U.S.
Lender to comply with the provisions of Section 2.12(e).
SECTION 2.13. Sharing of Payments, Etc. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Advances made by it (other than
pursuant to Section 2.10 or 2.12) in excess of its ratable share of payments on
account of the Advances made by all the Lenders, such Lender shall forthwith
purchase from the other Lenders such participation in the Advances owing to them
as shall be necessary to cause such purchasing Lender to share the excess
payment ratably, in the proportion that such Lender's aggregate Advances to
which the payment applies bears to the total of all Advances to which the
payment applies, with each of them, provided, however, that if all or any
portion of such excess payment is thereafter recovered from such purchasing
Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment to (ii) the
total amount so recovered from the purchasing Lender) of any interest or other
amount paid or payable by the purchasing Lender in respect of the total amount
so recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 2.13 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were the
direct creditor of the Borrower in the amount of such participation.
SECTION 2.14. Evidence of Debt. (a) Each Lender shall hold its respective
Note or Notes evidencing the Advances and shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Advance owing to such Lender from
time to time, including the amounts of principal and interest payable and paid
to such Lender from time to time hereunder.
(b) The Register maintained by the Agent pursuant to Section 10.08(c)
shall include a control account, and a subsidiary account for each Lender, in
which accounts (taken together) shall be recorded (i) the date and amount of
each Borrowing made hereunder, the Type of Advances comprising such Borrowing
and the Interest Period applicable thereto and, if such Advances are
Eurocurrency Advances, the currency in which such Advances are made, (ii) the
terms of each Assignment and Acceptance delivered to and accepted by it, (iii)
the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder, and (iv) the amount of any
sum received by the Agent from the Borrower hereunder and each Lender's share
thereof.
(c) The entries made in the Register shall effect a rebuttable presumption
as to the accuracy thereof. Each Lender's account entries with respect to the
Advances shall also effect a rebuttable presumption as to the accuracy thereof.
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SECTION 2.15. Currency Equivalents. For purposes of the provisions of this
Article II, (i) the equivalent in Dollars of any Alternative Currency shall be
determined by using the quoted spot rate at which Chase's (or its affiliate's)
principal office in London offers to exchange Dollars for such Alternative
Currency in London at 11:00 A.M. (London time) two Business Days prior to the
date on which such equivalent is to be determined, (ii) the equivalent in any
Alternative Currency of any other Alternative Currency shall be determined by
using the quoted spot rate at which Chase's (or its affiliate's) principal
office in London offers to exchange such Alternative Currency for the equivalent
in Dollars of such other Alternative Currency in London at 11:00 A.M. (London
time) two Business Days prior to the date on which such equivalent is to be
determined, and (iii) the equivalent in any Alternative Currency of Dollars
shall be determined by using the quoted spot rate at which Chase's (or its
affiliates') principal office in London offers to exchange such Alternative
Currency for Dollars in London at 11:00 A.M. (London time) two Business Days
prior to the date on which such equivalent is to be determined.
SECTION 2.16. Voluntary Conversion or Continuation of Advance. (a)
Provided that no Event of Default shall have occurred and be continuing, the
Borrower may on any Business Day, upon notice given to the Agent not later than
11:00 A.M. (New York City time) on the third Business Day prior to the date of
the proposed Conversion and subject to the provisions of Sections 2.01 and 2.02,
Convert an Advance of one Type into an Advance of another Type (provided that,
subject to all of the terms of this Agreement, Conversions to a Base Rate
Advance may be made on the same Business Day as requested not later than 11:00
AM on such Business Day); provided, however, that any Conversion of any
Eurocurrency Advance into an Advance of another Type shall be made on, and only
on, the last day of an Interest Period for such Eurocurrency Advance, and any
Conversion of a Base Rate Advance into a Eurocurrency Advance shall be in an
amount not less than the minimum amount specified in Section 2.02(c). Each such
notice of a Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Advance to be Converted, (iii) if such
Conversion is into a Eurocurrency Advance, the duration of the Interest Period
for such Advance and (iv) the type of currency of which the Converted Advance
shall consist. Each such notice of Conversion shall be binding on the Borrower
and irrevocable.
(b) The Borrower shall have the option to elect a subsequent Eurocurrency
Interest Period to be applicable to any Eurocurrency Advance by giving notice of
such election to the Agent, received no later than 11 A.M. (New York City time)
on the date three Business Days before the end of the then current Eurocurrency
Interest Period. In the event that the Borrower so elects to continue any
Eurocurrency Advance by selecting a subsequent Eurocurrency Interest Period, all
terms set forth in this Agreement applicable to the making of Eurocurrency
Advances shall be applicable to such continued Advance.
SECTION 2.17. Interest Rate Selection. If the Borrower shall fail to
select the duration of any Interest Period for any Eurocurrency Advance in
accordance with the provisions contained in the definition of "Interest Period",
or if the Borrower shall fail to select a subsequent Interest Period for any
Eurocurrency Advance in the manner set forth in Section 2.16(b), the Agent will
forthwith so notify the Borrower and such Advance will automatically, on the
last of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
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SECTION 2.18. Agent's Fees. The Borrower shall pay to the Agent for its
own account $20,000.00 per annum, payable on the first day of January of each
year. Notwithstanding the foregoing, for the years commencing January 1, 2001
and January 1, 2002, the Borrower shall pay to the Agent for its account
$15,000.00 per annum, payable on the first day of January of such year.
SECTION 2.19 Use of Proceeds. The proceeds of the Advances shall be
available (and the Borrower agrees that it shall use such proceeds) solely to
provide working capital for the Borrower and its Subsidiaries up to $7,500,000
at any time outstanding to fund Acquisitions permitted pursuant to Section
6.01(j) and may also be used for capital expenditures and restructuring costs.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Condition Precedent to Initial Advances. The obligation of
each Lender to make its initial Advance is subject to the condition precedent
that the Agent shall have received on or before the day of the initial Borrowing
the following, each dated such day, in form and substance reasonably
satisfactory to the Agent and in sufficient copies (other than the Notes, which
shall be executed in original only) for each Lender:
(a) Note. Each Note duly executed by the Borrower;
(b) Certificate of Corporate Action by the Borrower. A certificate of an
officer of the Borrower, dated the Closing Date, attesting to all corporate
action taken by the Borrower, including resolutions of its Board of Directors
authorizing the execution, delivery and performance of the Loan Documents and
each other document to be delivered pursuant to this Agreement;
(c) Incumbency and Signature Certificate of the Borrower. A certificate of
an officer of the Borrower, dated the Closing Date, certifying the names and
true signatures of the officers of the Borrower authorized to sign the Loan
Documents and the other documents to be delivered by the Borrower under this
Agreement.
(d) Intentionally Omitted.
(e) Corporate Charter, Good Standing. A copy, certified by the appropriate
authority in the jurisdiction of organization, of the certificate of
incorporation or charter of the Borrower; and a certificate issued by the
appropriate authority as to the good standing of the Borrower in each such
jurisdiction.
(f) Opinion of Counsel for Borrower. Favorable opinion of Bingham Dana
LLP, counsel for the Borrower, dated the Closing Date, in substantially the form
of Exhibit G.
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(g) Financial Statement. The audited consolidated and
unaudited consolidating financial statements of the Borrower for the Fiscal Year
ending June 30, 1998, together with the unqualified opinion of Ernst & Young as
to the consolidated financial statements, and financial projections prepared by
the Borrower.
(h) Intentionally Omitted.
(i) Intentionally Omitted.
(j) Intentionally Omitted.
(k) Insurance. Evidence satisfactory to Agent of all risk, extended
coverage insurance and public liability insurance, issued in amounts, and by
carriers, reasonably satisfactory to Agent.
(l) Searches. Lien searches, judgment searches, bankruptcy searches and
similar searches deemed appropriate by Agent's counsel, in form and substance
reasonably satisfactory to Agent.
(m) Fees. Payment of all fees due to the Agent.
(n) Other Documents. The other Loan Documents duly executed, and such
other documents as the Agent may reasonably require.
(o) Intentionally Omitted.
SECTION 3.02. Conditions Precedent to Each Borrowing. The obligation of
each Lender to make an Advance on the occasion of each Borrowing (including the
initial Borrowing) shall be subject to the further conditions precedent that on
the date of such Borrowing (a) the following statements shall be true (and each
of the giving of the applicable Notice of Borrowing and acceptance by the
Borrower of the proceeds of such Borrowing shall constitute a representation and
warranty by the Borrower that on the date of such Borrowing such statements are
true):
(i) The representations and warranties contained in Article IV are correct
on and as of the date of the initial Borrowing, before and after
giving effect to such Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date and with respect to
Borrowings other than the initial Borrowing such representations and
warranties shall be correct in all material respects, except to the
extent contemplated by this Agreement, or except to the extent any
such representation or warranty is no longer current as of the date of
such Borrowing because of reference to a specific date, and
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(ii) No event has occurred and is continuing, or would result from such
Borrowing or from the application of the proceeds therefrom, which
constitutes a Default or Event of Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) Due Incorporation. Each of the Borrower and each Subsidiary which is a
corporation is duly incorporated, validly existing and in corporate good
standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its assets and to transact the business in
which it is now engaged or proposed to be engaged, and is duly qualified as a
foreign corporation and in good standing under the laws of each other
jurisdiction in which such qualification is required, except where the failure
to so qualify in such other jurisdiction would not result in a Materially
Adverse Effect.
(b) Compliance with Other Agreements, Etc. The execution, delivery and
performance by the Borrower of the Loan Documents have been duly authorized by
all necessary corporate action and do not and will not: (i) require any further
consent or approval of its stockholders; (ii) contravene its charter or by-laws;
(iii) violate any provision of, or require any filing, registration, consent or
approval under, any law, rule, regulation (including, without limitation,
Regulation U), order, writ, judgment, injunction, decree, determination or award
presently in effect having applicability to the Borrower or any of its
Subsidiaries or affiliates; (iv) result in a material breach of or constitute a
default or require any consent under any material indenture or loan or credit
agreement or any other material agreement, lease or instrument to which the
Borrower is a party or by which it or its properties may be bound after giving
effect to the application of the initial Advances; (v) result in, or require,
the creation or imposition of any Lien, upon or with respect to any of the
properties now owned or hereafter acquired by the Borrower; or (vi) cause the
Borrower (or any Subsidiary or Affiliate, as the case may be) to be in default
under any such law, rule, regulation, order, writ, judgment, injunction, decree,
determination or award or any such material indenture, agreement, lease or
instrument after giving effect to the application of the initial Advances,
except for defaults which would not result in a Materially Adverse Effect.
(c) Validity of Obligations. Each Loan Document which is executed by the
Borrower is, or when delivered under this Agreement will be, a legal, valid and
binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, except to the extent that such enforcement may be
limited by applicable bankruptcy, insolvency, equitable
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remedies and other similar laws affecting creditors' rights generally and except
as the availability of equitable remedies is subject to the discretion of the
court before which such remedies are sought.
(d) No Pending Litigation. Except as set forth on Schedule 2, there are no
actions, suits or proceedings pending or, to the knowledge of the Borrower,
threatened, against or affecting the Borrower or any of its Subsidiaries before
any court, governmental agency or arbitrator, which may, in any one case or in
the aggregate, result in a Materially Adverse Effect.
(e) Financial Statements. The consolidated and consolidating balance sheet
of the Borrower and its Consolidated Subsidiaries as at June 30, 1998, and the
related consolidated and consolidating income statement and statement of cash
flows and statement of changes in stockholders' equity of the Borrower and its
Consolidated Subsidiaries for the Fiscal Year then ended, and the accompanying
footnotes, together with the opinion thereon, of Ernst & Young, independent
certified public accountants, and the interim consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as at September 30, 1998, and the
related consolidated and consolidating income statement for the fiscal quarter
then ended, certified by the Borrower's Chief Financial Officer are complete and
correct and fairly present the financial condition of the Borrower and its
Consolidated Subsidiaries as at such dates and the results of the operations of
the Borrower and its Consolidated Subsidiaries for the periods covered by such
statements, all in accordance with GAAP consistently applied (subject to year
end adjustments and absence of footnote disclosures in the case of the interim
financial statements). There are no liabilities of the Borrower or any of its
Consolidated Subsidiaries, fixed or contingent, which are material and are
required by GAAP to be reflected but are not reflected in the financial
statements referred to above or in the notes thereto, other than liabilities
arising in the ordinary course of business since June 30, 1998. No material
information, exhibit or report furnished by the Borrower to the Agent in
connection with the negotiation of this Agreement contained any material
misstatement of fact or omitted to state a material fact or any fact necessary
to make the statements contained therein not materially misleading. Since June
30, 1998, there have been no material adverse changes in the condition
(financial or otherwise), business, or operations of the Borrower or any of its
Subsidiaries.
(f) Title to Assets. Each of the Borrower and its Consolidated
Subsidiaries has title to, or valid leasehold interests in, all of its material
properties and assets, real and personal, including the properties and assets,
and leasehold interests reflected in the financial statements referred to in
Section 4.01(e) (other than any properties or assets disposed of in the ordinary
course of business), and none of the material properties and assets owned by the
Borrower or any of its Subsidiaries and none of its leasehold interests is
subject to any Lien, except as disclosed in such financial statements or as may
be permitted hereunder.
(g) Taxes. Each of the Borrower and its Subsidiaries has filed all tax
returns (federal, state and local) required to be filed as of the date hereof
and has paid all taxes, assessments and governmental charges and levies shown
thereon to be due, including interest and penalties. The federal income tax
liability of the Borrower and its Subsidiaries has been audited
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by the Internal Revenue Service and has been finally determined and satisfied
for all taxable years up to and including the taxable year ended June 30, 1991.
(h) ERISA. Each of the Borrower and its Subsidiaries is in compliance in
all material respects with all applicable provisions of ERISA. Neither an ERISA
Event nor a Prohibited Transaction has occurred with respect to any Plan; no
notice of intent to terminate a Plan has been filed nor has any Plan been
terminated; no circumstance exists which constitutes grounds under Section 4042
of ERISA entitling the PBGC to institute proceedings to terminate, or appoint a
trustee to administer, a Plan, nor has the PBGC instituted any such proceedings;
neither the Borrower nor any ERISA Affiliate has completely or partially
withdrawn under Sections 4201 or 4204 of ERISA from a Multiemployer Plan; each
of the Borrower and each of its ERISA Affiliates has met its minimum funding
requirements under ERISA with respect to all of its Plans and there are no
Unfunded Vested Liabilities; and neither the Borrower nor any ERISA Affiliate
has incurred any liability to the PBGC under ERISA.
(i) Subsidiaries. Schedule 7 is a complete and accurate list of the
Subsidiaries of the Borrower, showing the jurisdiction of incorporation or
organization of each Subsidiary and showing the percentage of the Borrower's
ownership of the outstanding stock or other interest of each such Subsidiary.
All of the outstanding capital stock or other interest of each such Subsidiary
has been validly issued, is fully paid and nonassessable and is owned by the
Borrower free and clear of all Liens other than liens permitted by this
Agreement.
(j) Indebtedness. Schedule 3 is a complete and correct list of all
material credit agreements, indentures, purchase agreements, guaranties, Capital
Leases and other material investments, agreements and arrangements presently in
effect providing for or relating to extensions of credit (including agreements
and arrangements for the issuance of letters of credit or for acceptance
financing) in respect of which the Borrower or any of its Subsidiaries is in any
manner directly or contingently obligated; and the maximum principal or face
amounts of the credit in question, outstanding and which can be outstanding, are
correctly stated in such Schedule, and all material Liens of any nature given or
agreed to be given as security therefor are correctly described or indicated in
such Schedule.
(k) Licenses, Permits. Each of the Borrower and its Subsidiaries possesses
all material licenses, permits, franchises, patents, copyrights, trademarks and
trade names, or rights thereto, to conduct its business substantially as now
conducted and as presently proposed to be conducted, and neither the Borrower
nor any of its Subsidiaries is in violation of any valid rights of others with
respect to any of the foregoing except to the extent that any such violation
will not result in a Materially Adverse Effect.
(l) Judgments. Each of the Borrower and its Subsidiaries has satisfied all
judgments that may result in a Materially Adverse Effect and neither the
Borrower nor any of its Subsidiaries is in default with respect to any judgment,
writ, injunction, decree, rule or regulation of any court, arbitrator or
federal, state, municipal or other governmental authority, commission, board,
bureau, agency or instrumentality, domestic or foreign that may result in a
Materially Adverse Effect.
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(m) Other Agreements. Neither the Borrower nor any of its
Subsidiaries is a party to any material indenture, loan or credit agreement or
any material lease or other material agreement or instrument or subject to any
charter or corporate restriction which could have a Materially Adverse Effect.
Neither the Borrower nor any of its Subsidiaries is in default in any respect in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any agreement or instrument material to its business
to which it is a party except defaults which would not result in a Materially
Adverse Effect.
(n) Labor Disputes, Acts of God. Neither the business nor the
properties of the Borrower or of any of its Subsidiaries are subject to any
fire, explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance), which could have a Materially
Adverse Effect.
(o) Investment Company. Neither the Borrower nor any of its
Subsidiaries is an "investment company" within the meaning of the United States
Investment Company Act of 1940.
(p) Partner in a Partnership. Neither the Borrower nor any of
its Subsidiaries is a partner in any partnership.
(q) Compliance with Law. The Borrower and its Subsidiaries are
in compliance in all material respects with all applicable laws, rules and
regulations as promulgated or issued by any and all governmental or
quasi-governmental bodies, including, without limitation, all Environmental Laws
except to the extent that any violation shall not result in a Materially Adverse
Effect.
(r) Initial Public Offering. The Borrower has consummated its
initial public offering of common stock, pursuant to which the Borrower has (1)
sold, for its own account, 1,500,000 shares of its common stock, and (2)
received net proceeds in the amount of approximately $16,100,000 on account of
such stock.
(s) Previous Term Loan. The Borrower has fully and finally
repaid all outstanding amounts under the Previous Term Loan.
(t) Previous Subordinated Debt. The Borrower has fully and
finally repaid all Previous Subordinated Debt.
(u) Year 2000. Any reprogramming required to permit the proper
functioning, in and following the year 2000, of (i) the Borrower's and its
Subsidiaries' computer systems and (ii) equipment containing embedded microchips
(including systems and equipment supplied by others or with which Borrower's or
its Subsidiaries' systems interface) and the testing of all such systems and
equipment, as so reprogrammed, will be completed by July 1, 1999. The cost of
the Borrower and its Subsidiaries of such reprogramming and testing and of the
reasonably foreseeable consequences of year 2000 to the Borrower and its
Subsidiaries (including, without limitation,
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reprogramming errors and the failure of others' systems or equipment) will not
result in a Default or have a Materially Adverse Effect on the Borrower or its
Subsidiaries. Except for such of the reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information systems of
the Borrower and its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue to be, sufficient to permit the Borrower to conduct
its business without causing a Materially Adverse Effect to the Borrower.
ARTICLE V
AFFIRMATIVE COVENANTS
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment under this
Agreement, the Borrower shall, unless the Majority Lenders shall otherwise
consent in writing:
(a) Corporate Existence. Preserve and maintain, and cause each
of its Subsidiaries to preserve and maintain, its corporate existence and
corporate good standing in the jurisdiction of its incorporation, except that
the Borrower may dissolve any inactive Subsidiary which has no material assets,
and except as permitted pursuant to Section 6.01(g) or Section 6.01(j), and
qualify and remain qualified, and cause each of its Subsidiaries to qualify and
remain qualified, as a foreign corporation in each jurisdiction in which such
qualification is required except where the failure to so qualify shall not
result in a Materially Adverse Effect.
(b) Conduct of Business. Continue, and cause each of its
Subsidiaries to continue, to engage in lines of business of the same general
type as conducted by it on the date of this Agreement.
(c) Preservation of Properties. Maintain, keep and preserve,
and cause each of its Subsidiaries to maintain, keep and preserve, all of its
material properties (tangible and intangible), necessary or useful in the proper
conduct of its business in good working order and condition, ordinary wear and
tear excepted.
(d) Maintenance of Records. Keep, and cause each of its
Subsidiaries to keep, adequate records and books of account, in which complete
entries will be made in accordance with GAAP, reflecting all material financial
transactions of the Borrower and its Subsidiaries.
(e) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with financially sound and reputable
insurance companies or associations in such amounts and covering such risks as
are usually carried by companies engaged in the same or a similar business and
similarly situated, which insurance may provide for reasonable deductibility
from coverage thereof.
(f) Compliance with Law. Comply in all material respects, and
cause each of its Subsidiaries to comply, in all material respects with all
applicable laws, rules, regulations and orders, except for noncompliance which
shall not result in a Materially Adverse Effect, such compliance to include,
without limitation, paying before the same become delinquent all taxes,
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assessments and governmental charges imposed upon it or upon its property,
provided that the Borrower may, with the exercise of due diligence and through
appropriate proceedings, contest any tax, provided further that such contest
shall not result in the imposition of a lien on any assets of the Borrower and
its Subsidiaries and the Borrower shall maintain adequate reserves against all
such contested taxes.
(g) Examination of Records. At any reasonable time and from
time to time on reasonable prior notice, permit the Agent or any agent or
representative thereof, to examine and make copies and abstracts from the
records and books of account of, and visit the properties of, the Borrower and
any of its Subsidiaries, and to discuss the affairs, finances and accounts of
the Borrower and any such Subsidiary with any of their respective officers and
directors and the Borrower's independent certified public accountants, provided
that any such examinations and discussions shall be conducted subject to the
terms of Section 10.17.
(h) Financial Reporting. Furnish to the Agent:
(i) As soon as available and in any event within 120
days after the end of each Fiscal Year of the Borrower, a
consolidated and consolidating balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end
of such Fiscal Year and a consolidated and consolidating
income statement and statement of cash flows and statement
of changes in stockholders' equity of the Borrower and its
Consolidated Subsidiaries for such Fiscal Year, all in
reasonable detail and stating in comparative form the
respective consolidated and consolidating figures for the
corresponding date and period in the prior Fiscal Year and
all prepared in accordance with GAAP and as to the
consolidated statements accompanied by an unqualified
audit opinion thereon acceptable to the Agent by Ernst &
Young or other independent accountants of national
standing selected by the Borrower;
(ii) not later than 60 days following the close of
each Fiscal Year, a copy of the Borrower's annual budget,
reasonably detailed for each fiscal quarter, for the
following Fiscal Year.
(iii) As soon as available and in any event within
45 days after the end of each of the first three quarters
of each Fiscal Year of the Borrower, an unaudited
consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of such quarter
and a consolidated income statement of the Borrower and
its Consolidated Subsidiaries for the period commencing at
the end of the previous Fiscal Year and ending with the
end of such quarter, all in reasonable detail and stating
in comparative form the respective consolidated figures
for the corresponding date and period in the previous
Fiscal Year and all prepared in accordance with GAAP and
certified by the chief financial officer of the Borrower
(subject to year-end adjustments and absence of footnote
disclosures);
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(iv) Promptly upon receipt thereof, copies of any
reports submitted to the Borrower or any of its
Subsidiaries by independent certified public accountants
in connection with examination of the financial statements
of the Borrower or any such Subsidiary made by such
accountants;
(v) Simultaneously with the delivery of the
financial statements referred to in (i) and (iii) above, a
certificate of the Chief Financial Officer or President of
Borrower (x) certifying that to the best of his knowledge
no Default or Event of Default has occurred and is
continuing or, if a Default or Event of Default has
occurred and is continuing, a statement as to the nature
thereof and the action which is proposed to be taken with
respect thereto, and (y) with computations demonstrating
compliance with the covenants contained in Article VII;
(vi) Simultaneously with the delivery of the annual
financial statements referred to in subparagraph
5.01(h)(i) above, a certificate of the independent public
accountants who audited such statements to the effect
that, in making the examination necessary for the audit of
such statements, they have obtained no knowledge of any
condition or event which constitutes a Default or Event of
Default, or if such accountants shall have obtained
knowledge of any such condition or event, specifying in
such certificate each such condition or event of which
they have knowledge and the nature and status thereof;
(vii) Promptly after the commencement thereof,
notice of all material actions, suits, and proceedings
before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or
foreign, affecting the Borrower or any of its Subsidiaries
which, if determined adversely to the Borrower or such
Subsidiary, could have a Materially Adverse Effect.
(viii) As soon as possible and in any event within
10 days after the Borrower or an executive officer thereof
becomes aware (or reasonably should be expected to have
become aware of) the occurrence of each Default or Event
of Default a written notice setting forth the details of
such Default or Event of Default and the action which is
proposed to be taken by the Borrower with respect thereto;
(ix) Promptly after the filing or receiving thereof,
copies of all reports, including annual reports, and
notices which the Borrower or any Subsidiary files with or
receives from the PBGC or the U.S. Department of Labor
under ERISA with respect to a Plan; and as soon as
possible and in any event within 10 days after the
Borrower or any of its Subsidiaries knows or has reason to
know that any ERISA Event or Prohibited Transaction has
occurred with respect to any Plan or that the PBGC or the
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Borrower or any such Subsidiary has instituted or will
institute proceedings under Title IV of ERISA to terminate
any Plan, the Borrower will deliver to the Agent a
certificate of the chief financial officer of the Borrower
setting forth details to the best of his knowledge as to
such ERISA Event or Prohibited Transaction or Plan
termination and the action the Borrower proposes to take
with respect thereto;
(x) Promptly after the furnishing thereof, copies of
any statement or report furnished to any other party
pursuant to the terms of any indenture, loan or credit or
similar agreement and not otherwise required to be
furnished to the Lenders pursuant to any other clause of
this Section 5.01(h);
(xi) Promptly after the sending or filing thereof,
copies of all proxy statements, financial statements and
reports which the Borrower or any of its Subsidiaries
sends to its stockholders, and copies of all regular,
periodic and special reports, and all registration
statements which the Borrower or any such Subsidiary files
with the Securities and Exchange Commission or any
governmental authority which may be substituted therefor,
or with any national securities exchange;
(xii) on the date hereof, with respect to the fiscal
quarter ended December 31, 1998, and thereafter as soon as
available and in any event within 45 days after the end of
each quarter with respect to the fiscal quarter then
ended, an Informal Borrowing Base Certificate;
(xiii) During the continuance of any Default or
Event of Default, the Agent may require an audit of the
Borrower's accounts receivable and inventory at the
Borrower's reasonable expense; for this purpose the
Borrower shall utilize independent accountants or other
qualified professionals reasonably satisfactory to the
Majority Lenders;
(xiv) Upon the conclusion of any audit of the type
described in subparagraph (xiii), a detailed report of the
results of such audit;
(xv) Such other information respecting the condition
or operations, financial or otherwise, of the Borrower or
any of its Subsidiaries as any Lender, through its Agent,
may from time to time reasonably request;
(i) Further Acts. At its reasonable cost and expense, upon
request of any Lender (upon notice to the Agent), duly execute and deliver, or
cause to be duly executed and delivered, such further instruments and do and
cause to be done such further acts as may be necessary or proper in the
reasonable opinion of such Lender to carry out more effectually the provisions
and purposes of this Agreement.
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(j) Environmental Laws.
(i) Subject to the terms of Section 5.01(j)(ii),
keep and maintain all real property owned or leased by it
("Real Property") in compliance in all material respects
with all Environmental Laws (as defined below) except
where failure to comply would not result in a Materially
Adverse Effect and would not cause any Lender to incur
liability as a result thereof.
(ii) Notwithstanding the foregoing, in the event
that any investigation, site monitoring, containment,
cleanup, removal, restoration or other remedial work of
any kind or nature (the "Remedial Work") with respect to
the Real Property is required to be performed by the
Borrower under any applicable local, state or federal law
or regulation, any judicial order, or by any governmental
or nongovernmental entity or Person because of, or in
connection with, the current or future presence, suspected
presence, release or suspected release of a Hazardous
Substance (as defined below) in or into the air, soil,
ground-water, surface water or soil vapor at, on, about
under or within the Real Property (or any portion
thereof), the Borrower shall within thirty (30) days after
written demand for performance thereof by the Agent (or
such shorter period of time as may be required under any
applicable law, regulation, order or agreement), commence
and thereafter diligently prosecute to completion, all
such Remedial Work in accordance with the requirements of
applicable law. Notwithstanding the foregoing, provided
that the Borrower shall deliver to the Agent a Phase I
(and upon the Agent's reasonable request a Phase II)
environmental audit reasonably satisfactory to Agent in
all respects, and provided that Borrower shall deliver to
Agent such legal opinions or other documentary evidence as
Agent may reasonably require demonstrating that any
consent delivered by Agent in the manner hereinafter set
forth shall not result in the imposition or potential
imposition of any liability upon Agent or any Lender, and
provided further that Borrower shall maintain adequate
reserves for compliance with all Environmental Laws, Agent
shall not unreasonably withhold its consent to a contest
by the Borrower (with the exercise of due diligence and
appropriate proceedings) of any order or governmental
requirement concerning Remedial Work rather than
performing such Remedial Work. Such contest, if
instituted, shall be instituted promptly after the
Borrower obtains actual knowledge of an action, suit,
proceeding, or governmental order or directive which
asserts any obligation or liability affecting all or any
portion of the Real Property relating to Hazardous
Substances and requiring such Remedial Work and diligently
prosecuted until a final resolution is obtained. Remedial
Work shall be instituted promptly following an
unsuccessful nonappealable completion of the contest and
shall be diligently prosecuted until the Remedial Work is
completed.
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(iii) As used in this Section 5.01(j) (x)
"Environmental Law" means any federal, state or local law,
statute, ordinance, or regulation pertaining to health,
industrial hygiene, or the environmental conditions on,
under or about the Real Property, and (y) the term
"Hazardous Substance" means those substances included
within the definitions of "hazardous substances",
"hazardous materials", "toxic substances", or "solid
waste" under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended 42
U.S.C. Section 9601 et seq., the Resource Conservation and
Recovery Act of 1976, 42 U.S.C. Section 6901 et seq. and
the Hazardous Materials Transportation Act, 49 U.S.C.
Sections 1801 et seq., and in the regulations promulgated
pursuant to said laws, and such other substances,
materials and wastes which are or become regulated under
applicable local, state or federal law, or which are
classified as hazardous or toxic under federal, state or
local laws or regulations.
ARTICLE VI
NEGATIVE COVENANTS
SECTION 6.01. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment under this Agreement, the
Borrower shall not without the Majority Lenders' prior written consent (or, in
the case of Subsection 6.01(f), not without the prior written consent of all of
the Lenders):
(a) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist any Debt,
except (each of the following being referred to herein as "Permitted
Indebtedness"):
(i) Debt of the Borrower under this Agreement or the
Notes;
(ii) Subordinated Indebtedness;
(iii) accounts payable to trade creditors for goods or
services which are not more than 90 days past due and current
operating liabilities (other than for borrowed money) which
are not more than 90 days past due, in each case incurred in
the ordinary course of business and paid within the specified
time, unless contested in good faith and by appropriate
proceedings;
(iv) Debt of the Borrower or any such Subsidiary
secured by purchase money Liens or pursuant to Capital Leases,
in each case as permitted by Section 6.01(c);
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(v) Contingent liabilities which are unsecured
(including, without limitation, obligations in respect of
letters of credit) up to an aggregate amount not to exceed
$3,000,000;
(vi) Debt set forth in Schedule 3 (including
subsequent borrowings thereunder up to the maximum facility
amount set forth on Schedule 3), and renewals thereof (but not
any increase thereof);
(vii) Intentionally omitted;
(viii) Debt owed by a Subsidiary to the Borrower or
another Subsidiary or Debt owed by the Borrower to a
Subsidiary;
(ix) (x) Guaranties by endorsement of negotiable
instruments for deposit or collection or similar transactions
in the ordinary course of business, (y) Guaranties set forth
in Schedule 3 and (z) guaranties of Permitted Indebtedness and
any replacements thereof.
(b) Intentionally Omitted.
(c) Liens. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any Lien
encumbering Accounts, General Intangibles or inventory, except:
(i) Intentionally omitted.
(ii) Liens for taxes or assessments or other
government charges or levies if not yet due and payable or if
due and payable if they are being contested in good faith by
appropriate proceedings and for which appropriate reserves are
maintained;
(iii) Liens imposed by law, such as mechanic's
materialmen's, landlord's, warehousemen's and carrier's Liens,
and other similar Liens, securing obligations incurred in the
ordinary course of business which are not past due for more
than 30 days, or which are being contested in good faith by
appropriate proceedings and for which appropriate reserves
have been established;
(iv) Liens under workmen's compensation, unemployment
insurance, social security or similar legislation;
(v) Liens, deposits or pledges to secure the
performance of bids, tenders, contracts (other than contracts
for the payment of money), leases (permitted under the terms
of this Agreement), public or statutory obligations, surety,
stay, appeal, indemnity, performance or other similar bonds,
or other similar obligations arising in the ordinary course of
business;
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(vi) judgment and other similar Liens arising in
connection with court proceedings; provided that the execution
or other enforcement of such Liens is effectively stayed and
the claims secured thereby are being actively contested in
good faith and by appropriate proceedings;
(vii) easements, rights-of-way, restrictions and other
similar encumbrances which, in the aggregate, do not
materially interfere with the occupation, use and enjoyment by
the Borrower or any such Subsidiary of the property or assets
encumbered thereby in the normal course of its business or
materially impair the value of the property subject thereto;
(viii) Liens securing obligations of such a Subsidiary
to the Borrower or another such Subsidiary or obligations of
the Borrower to any Subsidiary;
(ix) purchase money Liens on any property hereafter
acquired or the assumption of any Lien on property existing at
the time of such acquisition, or a Lien incurred in connection
with any conditional sale or other title retention agreement
or a Capital Lease; provided that:
a. any property subject to any of the foregoing is
acquired by the Borrower or any such Subsidiary in the
ordinary course of its business and the Lien on any such
property is created contemporaneously or within 180 days
after such acquisition;
b. the obligation secured by any Lien so created,
assumed or existing shall not exceed 100% of the lesser of
cost or fair market value as of the time of acquisition of
the property covered thereby to the Borrower or such
Subsidiary acquiring the same;
c. each such Lien shall attach only to the property
so acquired and fixed improvements thereon;
d. the Debt secured by all such Liens shall not
exceed $7,500,000.00 at any time outstanding in the
aggregate;
e. the obligations secured by such Lien are
permitted by the provisions of Section 6.01(a) and the
related expenditure is permitted under Section 7.06.
(x) Liens set forth on Schedule 4 hereto, and renewals
thereof, provided that no additional assets or property are
encumbered as a result of any such renewal;
(xi) Intentionally omitted;
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(xii) Intentionally omitted;
(xiii) Licenses and similar rights to use technology,
patents and trademarks granted by the Borrower to customers in
the ordinary course of business, and not for the purpose of
securing any obligation.
(d) Leases. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to exist, any
obligation as lessee for the rental or hire of any real or personal property,
except: (a) leases existing on the date of this Agreement and any extensions or
renewals thereof; (b) leases (other than Capital Leases) which do not in the
aggregate require the Borrower and its Subsidiaries on a consolidated basis to
make payments (including taxes, insurance, maintenance and similar expense which
the Borrower or any Subsidiary is required to pay under the terms of any lease)
in any Fiscal Year of the Borrower in excess of $7,500,000.00; and (c) Capital
Leases permitted by Section 6.01(c).
(e) Investments. Make, or permit any of its Subsidiaries to
make, any loan or advance to any Person or purchase or otherwise acquire, or
permit any such Subsidiary to purchase or otherwise acquire, any capital stock,
assets, obligations or other securities of, make any capital contribution to, or
otherwise invest in, or acquire any interest in, any Person, in excess of
$750,000.00 in the aggregate at any time outstanding, except: (a) direct
obligations of the United States of America or any agency thereof with
maturities of one year or less from the date of acquisition; (b) commercial
paper of a domestic issuer rated at least "A-1" by Standard & Poor's Corporation
or "P-1" by Moody's Investors Service, Inc.; (c) certificates of deposit with
maturities of one year or less from the date of acquisition issued by any
commercial bank operating within the United States of America having capital and
surplus in excess of $100,000,000.00; (d) for stock, obligations or securities
received in settlement of debts (created in the ordinary course of business)
owing to the Borrower or any such Subsidiary; (e) investments set forth on
Schedule 5, and any renewal thereof (but not any increase thereof); (f)
investments permitted pursuant to Section 6.01(j) or; (g) investments by the
Borrower in any Subsidiary, including, without limitation, a newly formed
Subsidiary, investments by any Subsidiary in the Borrower, or investments by any
Subsidiary in another Subsidiary.
(f) Restricted Payments. Make any Restricted Payment.
(g) Sale of Assets. Sell, lease, assign, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, assign, transfer
or otherwise dispose of, substantially all (meaning 25% in value or greater at
the time of such sale, lease, assignment, transfer or other disposition) of its
now owned or hereafter acquired material assets (including, without limitation,
shares of stock and indebtedness of such Subsidiaries, receivables and leasehold
interests); except: (i) for inventory disposed of in the ordinary course of
business; (ii) the sale or other disposition of assets no longer used or useful
in the conduct of its business; (iii) the sale, lease, assignment or transfer of
assets by any such Subsidiary to the Borrower or to another Subsidiary and the
sale, lease, assignment or transfer of assets by Borrower to any Subsidiary;
(iv) sales of equipment immediately made subject to a Capital Lease permitted by
Section 6.01(c); and (v) grants to
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customers, which are not for the purpose of securing any obligation, of licenses
and similar rights to use technology, patents or trademarks in the ordinary
course of business.
(h) Intentionally Omitted.
(i) Transactions with Affiliates. Enter into any transaction,
including, without limitation, the purchase, sale or exchange of property or the
rendering of any service, with any Affiliate or permit any of its Subsidiaries
to enter into any transaction, including, without limitation, the purchase, sale
or exchange of property or the rendering of any service, with any Affiliate,
except in the ordinary course of and pursuant to the reasonable requirements of
the Borrower's or such Subsidiary's business and upon fair and reasonable terms
no less favorable to the Borrower or such Subsidiary than would obtain in a
comparable arm's length transaction with a Person not an Affiliate, and except
for arrangements set forth on Schedule 6, and except for payment of management
fees to stockholders of Borrower not to exceed in the aggregate $150,000 per
Fiscal Year, and except as permitted pursuant to the terms of Subsections
6.01(e), (f), (g), and (j) and except for transactions between the Borrower and
one or more of its Subsidiaries or between one or more of the Borrower's
Subsidiaries.
(j) Mergers, Acquisitions, Etc. Except as permitted pursuant
to Section 6.01(g) merge (except for mergers of a Subsidiary into the Borrower
or another Subsidiary) or consolidate with, or acquire all or substantially all
of the assets or the business of any Person (or enter into any agreement to do
any of the foregoing), or permit any of its Subsidiaries to do so, or make any
Acquisition except that, provided that no Event of Default is continuing, the
Borrower may make any Acquisition of an entity engaged in a line of business of
the same general type as conducted by the Borrower on the date of this Agreement
provided that, (1) no Acquisition may be made for a purchase price or
consideration in excess of 15% of Consolidated Total Assets at the time of such
Acquisition, and (2) not more than $7,500,000 of Advances in the aggregate
outstanding at any time shall be permitted for the purpose of financing any
Acquisition or to refinance the cost thereof.
ARTICLE VII
FINANCIAL COVENANTS
So long as the Notes shall remain unpaid or any Lender shall have any
Commitment under this Agreement:
SECTION 7.01. Current Ratio. For the period between January 1, 1999 and
December 31, 2000, the Borrower and its Consolidated Subsidiaries shall
maintain, at all times, on a consolidated basis, a Current Ratio of not less
than 1.25:1.0, to be measured at the end of each fiscal quarter. For the period
commencing January 1, 2001, up to and including the Termination Date, the
Borrower and its Consolidated Subsidiaries shall maintain, at all times, on a
consolidated basis, a Current Ratio of not less than 1.50:1.0, to be measured at
the end of each fiscal quarter. For purposes of calculating the Current Ratio,
outstanding Advances shall be included in the definition of Current Liabilities.
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SECTION 7.02. Intentionally omitted.
SECTION 7.03. Intentionally omitted.
SECTION 7.04. Fixed Charge Coverage Ratio. For the period commencing on
April 1, 1999 and at all times thereafter, the Borrower and its Consolidated
Subsidiaries shall maintain on a consolidated basis, at all times, a Fixed
Charge Coverage Ratio of 3.0:1.00. For the purpose of calculating Fixed Charge
Coverage Ratio, the operating profit for the fiscal quarter ending June 30, 1999
shall consist solely of the one quarter then ended; the operating profit for the
fiscal quarter ending September 30, 1999 shall consist of the cumulative of the
quarter ending June 30, 1999 and the quarter ending September 30, 1999; the
operating profit for the fiscal quarter ending December 31, 1999 shall consist
of the cumulative of the quarter ending June 30, 1999, the quarter ending
September 30, 1999 and the quarter ending December 31, 1999; and the operating
profit for the fiscal quarter ending March 31, 2000 shall consist of the
cumulative of the quarter ending June 30, 1999, the quarter ending September 30,
1999, the quarter ending December 31, 1999 and the quarter ending March 31,
2000. After the quarter ending March 31, 2000, the operating profit for each
fiscal quarter shall be measured at the end of such fiscal quarter on the basis
of the period of the four consecutive quarters then ended.
SECTION 7.05. Leverage Ratio. The Borrower and its Consolidated
Subsidiaries shall maintain on a consolidated basis, a Leverage Ratio, to be
measured at the end of each fiscal quarter, not to exceed: a) 1.5:1.0 for the
quarters terminating March 31, 1999 and June 30, 1999; b) 1.25:1.0 for the
quarters terminating September 30, 1999, December 31, 1999, March 30, 2000 and
June 30, 2000; c) 1.10:1.0 for the quarter terminating September 30, 2000; and
d) 1.0:1.0 for the quarters terminating December 31, 2000 and thereafter.
SECTION 7.06. Capital Expenditures. The Borrower and its Consolidated
Subsidiaries, on a consolidated basis, shall not incur Capital Expenditures in
excess of $10,000,000 during any Fiscal Year.
SECTION 7.07. No Net Loss. The Borrower and its Consolidated
Subsidiaries shall not incur a net loss on a consolidated basis for any Fiscal
Year. Notwithstanding the foregoing, for the fiscal year ending June 30, 1999
only, the Borrower and its Consolidated Subsidiaries may incur a net loss after
taxes, which shall not exceed $4,000,000.00.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01. Events of Default. If any of the following events (each,
an "Event of Default") shall occur and be continuing:
(a) The Borrower shall: (i) fail to pay the principal of any Note as
and when due and payable; (ii) fail for five Business Days after notice to pay
interest on any Note or pay any fee or
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other amount due hereunder as and when due and payable; or (iii) fail to pay
interest on any Note or pay any fee or other amount due hereunder as and when
due and payable more than two times during any period of twelve consecutive
months;
(b) Any material representation or warranty made or deemed made by the
Borrower in this Agreement or in any other Loan Document or which is contained
in any certificate, document, opinion, financial or other statement furnished at
any time under or in connection with any Loan Document shall prove to have been
incorrect in any material respect on or as of the date made or deemed made;
(c) The Borrower shall: (i) fail to perform or observe any term,
covenant or agreement contained in Articles VI or VII; or (ii) fail to perform
or observe any term, covenant or agreement on its part to be performed or
observed (other than the obligations specifically referred to elsewhere in this
Section 8.01) in any Loan Document and such failure shall continue for 30
consecutive days after notice from the Agent;
(d) The Borrower or any of its Subsidiaries shall: (i) fail to pay any
Debt in excess of $500,000 (other than the payment of Obligations described in
Section 8.01(a) above), of the Borrower or such Subsidiary, as the case may be,
or any interest or premium thereon, when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise); (ii) fail to perform or
observe any term, covenant or condition on its part to be performed or observed
under any agreement or instrument relating to any Debt in excess of $500,000
(other than the payment of Obligations described in Section 8.01(a) above), when
required to be performed or observed, if the effect of such failure to perform
or observe is to accelerate, or to permit the acceleration at such time of the
maturity of such Debt, unless such failure to perform or observe shall be
permanently waived in writing by the holder of such Debt; or (iii) have any Debt
in excess of $500,000 (other than the payment of Obligations described in
Section 8.01(a) above) be declared due and payable, or required to be prepaid
(other than by a regularly scheduled required prepayment or, in the case of
Permitted Indebtedness other than Subordinated Indebtedness any prepayment which
is or becomes required by the terms thereof other than due to a default
thereunder), prior to the stated maturity thereof in whole;
(e) The Borrower or any of its Subsidiaries: (i) shall generally not,
or be unable to, or shall admit in writing its inability to, pay its debts as
such debts become due as such term is construed from time to time in accordance
with applicable bankruptcy law; or (ii) shall make an assignment for the benefit
of creditors, petition or apply to any tribunal for the appointment of a
custodian, receiver or trustee for it or a substantial part of its assets; or
(iii) shall commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect; or (iv) shall have had any
such petition or application filed or any such proceeding shall have been
commenced, against it, in which such an appointment is made or order for relief
is entered, or which petition, application or proceeding remains undismissed for
a period of 60 days or more; or (v) by any act or omission shall indicate its
consent to, approval of or acquiescence in any such petition, application or
proceeding or order for relief or the appointment of a custodian, receiver
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or trustee for all or any substantial part of its property; or (vi) shall suffer
any such custodianship, receivership or trusteeship to continue undischarged for
a period of 60 days or more;
(f) One or more judgments, decrees or orders for the payment of money
in excess of $500,000.00 in the aggregate shall be rendered against the Borrower
or any of its Subsidiaries and such judgments, decrees or orders shall continue
unsatisfied and in effect for a period of 60 consecutive days without being
vacated, discharged, satisfied or stayed or bonded pending appeal; or
(g) Any of the following events shall occur or exist with respect to
the Borrower or any ERISA Affiliate: (i) any Prohibited Transaction involving
any Plan; (ii) any ERISA Event shall occur with respect to any Plan; (iii) the
filing under Section 4041 of ERISA of a notice of intent to terminate any Plan
or the termination of any Plan; (iv) any event or circumstance exists which
would constitute grounds entitling the PBGC to institute proceedings under
Section 4042 of ERISA for the termination of, or for the appointment of a
trustee to administer, any Plan, or the institution by the PBGC of any such
proceedings; (v) complete or partial withdrawal under Section 4201 or 4204 of
ERISA from a Multiemployer Plan or the reorganization, insolvency, or
termination of any Multiemployer Plan; and in each case above, such event or
condition, together with all other events or conditions, if any, could in the
reasonable opinion of the Agent subject the Borrower to any tax, penalty, or
other liability to a Plan, Multiemployer Plan, the PBGC, or otherwise (or any
combination thereof) which in the aggregate exceed or may exceed $500,000.00;
Then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of Lenders owed at least 75% (or 100% if at such time there are two and
only two Lenders) of the aggregate unpaid principal amount of the Advances then
outstanding or, if no Advances are then outstanding, Lenders having at least 75%
(or 100% if at such time there are two and only two Lenders) of the Commitments,
by notice to the Borrower, declare the obligation of each Lender to make
Advances to be terminated, whereupon the same shall forthwith terminate, and
(ii) shall at the request, or may with the consent, of Lenders owed at least 75%
(or 100% if at such time there are two and only two Lenders) of the aggregate
unpaid principal amount of the Advances then outstanding or, if no Advances are
then outstanding, Lenders having at least 75% (or 100% if at such time there are
two and only two Lenders) of the Commitments, by notice to the Borrower, declare
all the Advances then outstanding, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Advances then outstanding, all such interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an Event of Default under
Section 8.01(e), (A) the obligation of each Lender to make Advances shall
automatically be terminated, and (B) the Notes, all such interest and such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
ARTICLE IX
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THE AGENT
SECTION 9.01. Authorization and Action. Each Lender hereby appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. As to
any matters not expressly provided for by this Agreement (including, without
limitation, enforcement or collection of the Debt resulting from the Advances),
the Agent shall not be required to exercise any discretion to take any action,
but shall be required to act or to refrain from acting (and shall be fully
protected in so acting or refraining from acting) upon the instructions of the
Majority Lenders, and such instructions shall be binding upon all Lenders;
provided, however, that the Agent shall not be required to take any action which
exposes the Agent to personal liability or which is contrary to this Agreement
or applicable law. The Agent agrees to give to each Lender prompt notice of each
notice given to it by the borrower pursuant to the terms of this Agreement.
SECTION 9.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable to any Lender for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the Agent:
(i) may treat the Lender that made any Advance as the holder of the Debt
resulting therefrom until the Agent receives and accepts an Assignment and
Acceptance entered into by such Lender, as assignor, and an Eligible Assignee,
as assignee, as provided in Section 10.08; (ii) may consult with legal counsel
(including counsel for the Borrower), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation to any Lender
and shall not be responsible to any Lender for any statements, warranties or
representations (whether written or oral) made in or in connection with this
Agreement; (iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement on the part of the Borrower or to inspect the property (including the
books and records) of the Borrower; (v) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; and (vi) shall incur no liability under or in respect
of this Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 9.03. Chase and Affiliates. With respect to any Commitment or
any Advances made by Chase or any of its affiliates, Chase and each such
affiliate shall have the same rights and powers under this Agreement as any
other Lender and may exercise the same as though it were not the Agent or an
affiliate thereof; and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated, include Chase and each such affiliate in its individual
capacity. Chase and its affiliates may accept deposits from, lend money to, act
as trustee under indentures of, and generally engage in any kind of business
with, the Borrower, any of its subsidiaries and any Person who may do business
with or own securities of the Borrower or any
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such subsidiary, all as if Chase were not the Agent and without any duty to
account therefor to the Lenders.
SECTION 9.04. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Agent or any other Lender and
based on the financial statements referred to in Section 4.01(e) and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 9.05. Indemnification. The Lenders agree to indemnify the Agent
(to the extent not reimbursed by the Borrower), ratably according to the
respective aggregate principal amount of Advances then owing to each of them (or
if not such Advances are at the time outstanding or if any such Advances are
then owing to Persons which are not Lenders, ratably according to the respective
amounts of their Commitments), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements or any kind of nature whatsoever which may be imposed
on, incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
agreement, provided that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, to the extent that the Agent is not
reimbursed for such expenses by the Borrower.
SECTION 9.06. Successor Agent. The Agent may resign at any time by
giving thirty (30) days prior written notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Majority Lenders shall have the right
to appoint a successor Agent. Such successor Agent shall be reasonably
acceptable to the Borrower. If no successor Agent shall have been so appointed
by the Majority Lenders and shall have accepted such appointment within fifteen
(15) days after the retiring Agent's giving of notice of resignation, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent, which
shall be a financial institution having a senior debt rating of not less than A
or its implied 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, except for accrued
obligations to the extent not assumed by the successor Agent. After any retiring
Agent's resignation, the provisions of this 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.
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. Amendments, Etc. No amendment or waiver of any provision
of this Agreement, nor consent to any departure by the Borrower therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Borrower and the Majority Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no amendment, waiver or consent shall, unless in
writing and signed by all the Lenders, do any of the following: (a) waive any of
the conditions specified in Section 3.01 or 3.02, (b) increase the commitments
of the Lenders or subject the Lenders to any additional obligations, (c) reduce
the principal of, or interest on, the Advances or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of principal of,
or interest on, the Advances or any fees or other amounts payable hereunder, (e)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Advances, or the number of Lenders or the percentages of their
respective Commitments, which shall be required for the Lenders or any of them
to take any action hereunder, (f) amend this Section 10.01, (g) reduce any rate
of accrual of interest or the amount of any accrued interest, (h) increase the
aggregate of all Lenders' Commitments beyond $15,000,000, (i) change the
definition of the term "Majority Lenders" or (j) modify or delete any term or
provision of this Agreement which term or provision provides for the vote or
consent of all the Lenders; and provided, further, that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Agent under this Agreement.
SECTION 10.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including facsimile transmission)
and mailed, sent by facsimile transmission or delivered, if to the Borrower, at
its address at 700 Chestnut Ridge Road, Chestnut Ridge, New York 10977, (or at
facsimile number (914) 425-8967) Attention: Chief Financial Officer; if to any
Lender originally a party hereto, at its Domestic Lending Office specified
opposite its name on Schedule 1 hereto; if to any other Lender, at its Domestic
Lending Office specified in the Assignment and Acceptance pursuant to which it
became a Lender; and if to the Agent, at its address at 400 Rella Boulevard,
Suite 100, Suffern, New York 10901, (or at facsimile number (914) 368-2366)
Attention: Mr. C. William Cosgrove; or, as to the Borrower or the Agent, at such
other address as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the Agent. All
such notices and communications shall, when mailed, or sent by facsimile
transmission, be effective on the third Business Day after deposited in the
mails, or on receipt of a written confirmation of a completed facsimile
transmission, respectively, except that notices and communications to the Agent
pursuant to Article II or V shall not be effective until received by the Agent
and notices to the Borrower shall not be effective unless actually received by
the Borrower in complete, legible form, provided that a signed return receipt
delivered by the U.S. Postal Service or a signed receipt obtained by an
overnight courier of national standing shall constitute presumptive evidence of
such receipt.
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SECTION 10.03. No Waiver, Remedies. No failure on the part of any
Lender or the Agent (or, except as expressly provided to the contrary herein,
the Borrower) to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 10.04. Costs, Expenses and Taxes. (a) The Borrower agrees to
pay on demand all reasonable costs and expenses in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement and the other documents to be delivered hereunder (except that
the Borrower shall not pay the costs of Lenders other than Agent with respect to
their review, negotiation or execution of this Agreement and any amendments
hereto except as set forth below), including, without limitation, the reasonable
fees and out-of-pocket expenses of counsel for the Agent with respect thereto
and with respect to advising the Agent as to its rights and responsibilities
under this Agreement. The Borrower further agrees to pay on demand all
reasonable costs and expenses, if any (including, without limitation, reasonable
counsel fees and expenses) of the Lenders, in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this Agreement
and the other documents to be delivered hereunder, including, without
limitation, reasonable counsel fees and expenses in connection with the
enforcement of rights under this Section 10.04(a) and the reasonable costs of
documentation prepared in connection with the administration, "workout", or
modification of this Agreement during the continuance of an Event of Default.
(b) If any payment of principal of any Eurocurrency Advance or any
Conversion thereof to an Advance of another Type is made by the Borrower to or
for the account of a Lender other than on the last day of the Interest Period
for such Advance, as a result of a payment pursuant to Section 2.02(b)(i),
acceleration of the maturity of the Advances pursuant to Section 8.01 or for any
other reason, the Borrower shall, upon demand by any Lender (with a copy of such
demand to the Agent), pay to the Agent for the account of such Lender any
amounts required to compensate such Lender for any additional losses, costs or
expenses which it may reasonably incur as a result of such payment, including,
without limitation, any loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such Advance.
(c) The Borrower agrees to indemnify and hold harmless the Agent and
each Lender and their directors, officers, employees and agents (each, an
"Indemnified Party") from and against any and all losses, claims, damages,
liabilities and reasonable costs and expenses incurred by the Indemnified Party,
including, without limitation, reasonable attorneys fees, arising out of claims
made by any Person in any way relating to the transactions contemplated hereby,
but excluding therefrom all costs, expenses, losses, claims, damages and
liabilities arising out of or resulting from the gross negligence or willful
misconduct of an Indemnified Party.
SECTION 10.05. Right of Set-off. Upon (i) the occurrence and during the
continuance of any Event of Default and (ii) the making of the request or the
granting of the
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consent specified by Section 8.01 to authorize the Agent to declare the Advances
due and payable pursuant to the provisions of Section 8.01, each Lender is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by such lender to or for the credit or the account of the
Borrower against any and all of the obligations of the Borrower now or hereafter
existing under this Agreement, whether or not such Lender shall have made any
demand under this Agreement and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such set-off and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which such Lender may
have.
SECTION 10.06. Judgment. (a) If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder or under the Notes
in any currency (the "Original Currency") into another currency (the "Other
Currency") the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that at which in
accordance with normal banking procedures the Agent could purchase the Original
Currency with the Other Currency at London, England on the first Business Day
preceding that on which final judgment is given.
(b) The obligation of the Borrower in respect of any sum due in the
Original Currency from it to any Lender or the Agent hereunder or under the Note
held by such Lender shall, notwithstanding any judgment in any Other Currency,
be discharged only to the extent that on the Business Day following receipt by
such Lender or the Agent (as the case may be ) of any sum adjudged to be so due
in such Other Currency such Lender or the Agent (as the case may be) may in
accordance with normal banking procedures purchase Dollars with such Other
Currency; if the amount of the Original Currency so purchased is less than the
sum originally due to such Lender or the Agent (as the case may be) in the
Original Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the Agent (as the
case may be) against such loss, and if the amount of the Original Currency so
purchased exceeds the sum originally due to any Lender or the Agent (as the case
may be ) in the Original Currency, such Lender or the Agent (as the case may be)
agrees to remit to the Borrower such excess.
SECTION 10.07. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Agent and when the
Agent shall have been notified by each Lender that such Lender has executed it
and thereafter shall be binding upon and inure to the benefit of the Borrower,
the Agent and each Lender and their respective permitted successors and assigns
(but not, except as expressly provided to the contrary herein, to the benefit of
any third party beneficiary), except that the Borrower shall not have the right
to assign its rights hereunder or any interest herein without the prior written
consent of the Lenders.
SECTION 10.08. Assignments and Participation. (a) Upon the prior
consent of the Borrower, such consent not to be unreasonably withheld or delayed
(it being understood that,
-50-
<PAGE> 57
without limitation, withholding of such consent to be deemed reasonable if such
assignment is to a Non-U.S. Lender and would subject Borrower to any United
States Federal withholding tax as a result thereof or if such assignment would,
at the time thereof, cause additional expense to Borrower under Sections 2.10(a)
or 2.10(b)), each Lender may assign to one or more banks or other entities all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment and the Advances owing to
it and the Note or Notes held by it); provided, however, that (i) each such
assignment shall be of a constant, and not a varying, percentage of all of the
assigning Lender's rights and obligations under this Agreement, (ii) the amount
of the Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $1,000,000, (iii)
each such assignment shall be to an Eligible Assignee, (iv) the parties to each
such assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment and a processing and recordation fee of
$2,500, (v) no Assignment and Acceptance shall result in any increased cost to
Borrower and (vi) the Agent shall, after giving effect to each Assignment and
Acceptance, be owed not less than 50% of the aggregate unpaid principal amounts
of the Advances then outstanding, or if no Advances are outstanding, then the
Agent shall, after giving effect to each Assignment and Acceptance, have a
Commitment not less than 50% of the aggregate Commitments of all of the Lenders.
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 10 Business Days after the execution thereof, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its further obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations under this
Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Lender assignor thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Lender makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such assigning Lender makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
section 4.01(e) 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; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on
such documents and
-51-
<PAGE> 58
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to the Agent by the
terms hereof, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement are required
to be performed by its as a Lender.
(c) The Agent shall maintain at its address referred to in Section
10.02 a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Advances owing to, each Lender
from time to time (the "Register"). The entries in the Register shall effect a
rebuttable presumption as to the accuracy thereof, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
(d) Subject to the other terms of this Section 10.08, upon its receipt
of an Assignment and Acceptance executed by an assigning Lender and an assignee
representing that it is an Eligible Assignee, consented to by the Borrower to
the extent required by Section 10.08(a), together with any Note or Notes subject
to such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit A hereto, (i) accept such
Assignment and Acceptance, and (ii) record the information contained therein in
the Register. Within five Business Days after the Borrower has consented to the
Assignment and Acceptance, the Borrower, at its own expense, shall execute and
deliver to the Agent in exchange for the surrendered Note or Notes a new Note to
the order of such Eligible Assignee in an amount equal to the Commitment assumed
by it pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained a Commitment hereunder, a new Note to the order of the assigning
Lender in an amount equal to the Commitment retained by it hereunder. Such new
Note or Notes shall be in an aggregate principal amount equal to the aggregate
principal amount of such surrendered Note or Notes, shall be dated the effective
date of such Assignment and Acceptance and shall otherwise be in substantially
the form of Exhibit C hereto.
(e) Each Lender may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment and
the Advances owing to it); provided, however, that (i) such Lender's obligations
under this Agreement (including, without limitation, its Commitment to the
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the Borrower, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (iv) the sale of such participation shall
not result in any increased cost to Borrower.
(f) Subject to Section 10.17, any Lender may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 10.08,
-52-
<PAGE> 59
disclose to the assignee or participant or proposed assignee or participant, any
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree, for the benefit of
the Borrower, to preserve the confidentiality of any confidential information
relating to the Borrower received by it from such Lender, on the terms set forth
in Section 10.17.
(g) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time create a security interest in all or any portion of
its rights under this Agreement (including, without limitation, the Advances
owing to it and the Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal Reserve
System.
SECTION 10.09. Consent to Jurisdiction. (a) The Borrower hereby
irrevocably submits to the jurisdiction of any New York State or Federal court
sitting in New York City and any appellate court from any thereof in any action
or proceeding arising out of or relating to this Agreement, and the Borrower
hereby irrevocably agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or in such Federal
court. The Borrower hereby irrevocably waives, to the fullest extent that it may
effectively do so, the defense of an inconvenient forum to the maintenance of
any such action or proceeding. The Borrower irrevocably consents to the service
of any and all process in any such action or proceeding by the mailing of copies
of such process to the Borrower at its address specified in Section 10.02. The
Borrower agrees that a final judgment in any such action or proceeding shall be
conclusive, subject to all applicable rights of appeal, and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law.
(b) Nothing in this Section 10.09 shall affect the right of the Agent
or any Lender to serve legal process in any other manner permitted by law or
affect the right of the Agent or any Lender to bring any action or proceeding
against the Borrower or its property in the courts of any other jurisdictions
including the Federal and State courts sitting in the State of New York.
SECTION 10.10. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
SECTION 10.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
SECTION 10.12. Captions. The captions and headings of the various
sections and subsections of this Agreement are provided for convenience only and
shall not be construed to modify the meaning of such sections or subsections.
SECTION 10.13. WAIVER OF JURY TRIAL. EACH LENDER, THE AGENT AND THE
BORROWER AGREE THAT NONE OF THEM NOR ANY ASSIGNEE OR SUCCESSOR SHALL (A) SEEK A
JURY TRIAL IN ANY LAWSUIT, PROCEEDING,
-53-
<PAGE> 60
COUNTERCLAIM OR ANY OTHER ACTION BASED UPON, OR ARISING OUT OF, THIS AGREEMENT,
ANY RELATED INSTRUMENTS, ANY COLLATERAL OR THE DEALINGS OR THE RELATIONSHIP
BETWEEN OR AMONG ANY OF THEM, OR (B) SEEK TO CONSOLIDATE ANY SUCH ACTION WITH
ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THE
PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY THE LENDERS, THE AGENT
AND THE BORROWER, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
NEITHER THE LENDERS, THE AGENT NOR THE BORROWER HAS AGREED WITH OR REPRESENTED
TO THE OTHER THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN
ALL INSTANCES.
SECTION 10.14. Intentionally Omitted.
SECTION 10.15. Intentionally Omitted.
SECTION 10.16. Application of Required Prepayments. The Lenders agree
to apply mandatory principal prepayments first to any outstanding Base Rate
Advances and then to Eurocurrency Advances.
SECTION 10.17. Confidentiality. Neither the Agent nor any Lender shall
disclose any Confidential Information to any Person without the consent of the
Borrower, other than (a) to the Agent's or such Lender's Affiliates and their
officers, directors, employees, agents and advisors and to actual or prospective
Eligible Assignees and participants, and then only on a confidential basis as
provided in Section 10.08(f), (b) as required by any law, governmental rule or
regulation or judicial process and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
SECTION 10.18. Amendment and Restatement. This Agreement amends and
restates the Existing Loan Agreement in its entirety. The parties to this
Agreement intend not to effect a novation of the obligations of the Borrower
under the Existing Loan Agreement, but merely to constitute a restatement and,
where applicable, an amendment to the terms of the Existing Loan Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
LECROY CORPORATION
By:
--------------------------------------
Name: John C. Maag
Title: Chief Financial Officer
THE CHASE MANHATTAN BANK, successor by
merger to The Chase Manhattan Bank, N.A.
and
<PAGE> 61
formerly known as Chemical Bank, as Agent
and Lender
By:
--------------------------------------
Name: C. William Cosgrove
Title: Vice President
BANKBOSTON, N.A., successor by merger to
Bank of Boston Connecticut, as Lender
By:
--------------------------------------
Name: Sheila A. Maher
Title: Director
<PAGE> 62
EXHIBIT A
ASSIGNMENT AND ACCEPTANCE
Dated ______________, 19__
Reference is made to the Amended and Restated Multicurrency Credit
Agreement dated as of _____________, 19__ (the "Credit Agreement") among
_________________, a _____________ corporation (the "Borrower"), the Lenders (as
defined in the Credit Agreement) and _________________, as Agent for the Lenders
(the "Agent"). Terms defined in the Credit Agreement are used herein with the
same meaning.
________________________ (the "Assignor") and ___________________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, the interest specified
on Schedule 1 hereto in and to all of the Assignor's rights and obligations
under the Credit Agreement as of the date hereof which represents the percentage
interest specified on Schedule 1 of all outstanding rights and obligations under
the Credit Agreement, including, without limitation, such interest in the
Assignor's Commitment, the Advances owing to the Assignor, and the Note held by
the Assignor. After giving effect to such sale and assignment, the Assignee's
Commitment and the amount of Advances owing to the Assignee will be as set forth
in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest being assigned by it hereunder and that such interest is free and clear
of any adverse claim; (ii) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto; (iii)
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the Borrower or the performance or observance by
the Borrower of any of its obligations under the Credit Agreement or any other
instrument or document furnished pursuant thereto; and (iv) attaches the Note
referred to in paragraph 1 above and requests that the Agent exchange such Note
for a new Note payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto or new Notes payable to the
order of the Assignee in an amount equal to the Commitment assumed by the
Assignee pursuant hereto and the Assignor in an amount equal to the Commitment
retained by the Assignor under the Credit Agreement, respectively, as specified
on Schedule 1 hereto.
3. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to the Agent for acceptance by
the Agent. The effective date of this Assignment and Acceptance shall be the
date of acceptance thereof by the Agent, unless otherwise specified on Schedule
1 hereto (the "Effective Date").
<PAGE> 63
4. Upon such acceptance by the Agent, as of the Effective Date, (i) the
Assignee shall, in addition to the rights and obligations under the Credit
Agreement held by it immediately prior to the Effective Date, have the rights
and obligations under the Credit Agreement that have been assigned to it
pursuant to this Assignment and Acceptance and (ii) the Assignor shall, to the
extent provided in this Assignment and Acceptance, relinquish its right and be
released from its obligations under the Credit Agreement.
5. Upon such acceptance by the Agent, from and after the Effective
Date, the Agent shall make all payments under the Credit Agreement and the Notes
in respect of the interest assigned hereby (including, without limitation, all
payments of principal, interest and commitment fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Credit Agreement and the Notes for periods prior to the
Effective Date directly between themselves.
6. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written, such execution being made on
Schedule 1 hereto.
<PAGE> 64
EXHIBIT B
Lecroy Corporation
Quarterly Informal Borrowing Base Certificate
As of Quarter End
<TABLE>
<CAPTION>
Trade Accounts Receivable
--------- ------ ------- -------- ---------- -------
Current 31-60 61-90 91-120 Over 120 Total
<S> <C> <C> <C> <C> <C> <C>
Domestic A/R
--------- ------ ------- -------- ---------- -------
Foreign A/R
Total Trade A/R
-------
Aging Percentage
=======
Less Allowance for Doubtful Accounts
-------
Net Trade A/R
</TABLE>
Inventory
Raw Materials
--------------
W/P
==============
Finished Goods
Total U.S. Inventory
==============
Certification
The undersigned hereby certifies to the Chase Manhattan Bank (the "Agent") that
the information set forth above is true and correct as of the last day of the
measuring period specified above.
LeCroy Corporation
----------------------------------
John C. Maag
Vice President and Chief Financial Officer
Date:
<PAGE> 65
EXHIBIT C
AMENDED AND RESTATED PROMISSORY NOTE
Dated: March 31, 1999
FOR VALUE RECEIVED, the undersigned, LECROY CORPORATION (the
"Borrower"), a corporation organized and existing under the laws of the State of
Delaware, hereby promises to pay to the order of BANKBOSTON, N.A. (the
"Lender"), the aggregate principal amount of each Advance owing to the Lender by
the Borrower, if not sooner paid pursuant to the terms of the Credit Agreement
(hereinafter defined), on the Termination Date. All capitalized terms used in
this Amended and Restated Promissory Note and not otherwise provided herein
shall have the same meanings herein as in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest in respect of each Advance (i) in
United States Dollars are payable in United States Dollars to the Agent for the
account of the Lender as specified in the Credit Agreement at the Payment Office
for United States Dollars set forth in the Credit Agreement in immediately
available funds, in lawful money of the United States of America and (ii) in any
Alternative Currency are payable in such Alternative Currency to the Agent for
the account of the Lender as specified in the Credit Agreement at the Payment
Office for such Alternative Currency set forth in the Credit Agreement in
immediately available funds in accordance with the Credit Agreement.
<PAGE> 66
Each Advance owing to the Lender by the Borrower and the
maturity thereof, and all payments made on account of principal thereof shall be
recorded by the Agent in the Register maintained by the Agent.
The Borrower hereby waives diligence, presentment, demand,
protest and notice (except as set forth in the Credit Agreement) of any kind
whatsoever. The nonexercise by the holder hereof of any of its rights hereunder
in any particular instance shall not constitute a waiver thereof in that or any
subsequent instance.
This Amended and Restated Promissory Note is one of the Notes
referred to in, and is entitled to the benefits of, the Amended and Restated
Multicurrency Credit Agreement dated as of March 31, 1999, as amended from time
to time (the "Credit Agreement"), between the Borrower, The Chase Manhattan
Bank, as Agent and Lender, and BankBoston, N.A., as Lender thereto, which Credit
Agreement, among other things, (i) provides for the making by the Lender to the
Borrower of Advances in accordance with the terms thereof, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified. This
Amended and Restated Promissory Note amends and restates the indebtedness
evidenced by the note(s) previously delivered to the Lender pursuant to the
terms of the Existing Credit Agreement (as such term is defined in the Credit
Agreement).
LECROY CORPORATION
By:
-------------------------------------
Name: John C. Maag
Title: Chief Financial Officer
<PAGE> 67
STATE OF NEW YORK )
)ss.:
COUNTY OF WESTCHESTER )
On the ____ day of March in the year 1999 before me, the undersigned, a Notary
Public in and for said State, personally appeared John Maag, personally known to
me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
__________________________
Notary Public
<PAGE> 68
AMENDED AND RESTATED PROMISSORY NOTE
Dated: March 31, 1999
FOR VALUE RECEIVED, the undersigned, LECROY CORPORATION (the
"Borrower"), a corporation organized and existing under the laws of the State of
Delaware, hereby promises to pay to the order of THE CHASE MANHATTAN BANK (the
"Lender"), the aggregate principal amount of each Advance owing to the Lender by
the Borrower, if not sooner paid pursuant to the terms of the Credit Agreement
(hereinafter defined), on the Termination Date. All capitalized terms used in
this Amended and Restated Promissory Note and not otherwise provided herein
shall have the same meanings herein as in the Credit Agreement.
The Borrower promises to pay interest on the unpaid principal
amount of each Advance from the date of such Advance until such principal amount
is paid in full, at such interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest in respect of each Advance (i) in
United States Dollars are payable in United States Dollars to the Agent for the
account of the Lender as specified in the Credit Agreement at the Payment Office
for United States Dollars set forth in the Credit Agreement in immediately
available funds, in lawful money of the United States of America and (ii) in any
Alternative Currency are payable in such Alternative Currency to the Agent for
the account of the Lender as specified in the Credit Agreement at the Payment
Office for such Alternative Currency set forth in the Credit Agreement in
immediately available funds in accordance with the Credit Agreement.
<PAGE> 69
Each Advance owing to the Lender by the Borrower and the
maturity thereof, and all payments made on account of principal thereof shall be
recorded by the Agent in the Register maintained by the Agent.
The Borrower hereby waives diligence, presentment, demand,
protest and notice (except as set forth in the Credit Agreement) of any kind
whatsoever. The nonexercise by the holder hereof of any of its rights hereunder
in any particular instance shall not constitute a waiver thereof in that or any
subsequent instance.
This Amended and Restated Promissory Note is one of the Notes
referred to in, and is entitled to the benefits of, the Amended and Restated
Multicurrency Credit Agreement dated as of March 31, 1999, as amended from time
to time (the "Credit Agreement"), between the Borrower, The Chase Manhattan
Bank, as Agent and Lender, and BankBoston, N.A., as Lender thereto, which Credit
Agreement, among other things, (i) provides for the making by the Lender to the
Borrower of Advances in accordance with the terms thereof, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified. This
Amended and Restated Promissory Note amends and restates the indebtedness
evidenced by the note(s) previously delivered to the Lender pursuant to the
terms of the Existing Credit Agreement (as such term is defined in the Credit
Agreement).
LECROY CORPORATION
By:
-------------------------------------------
Name: John C. Maag
Title: Chief Financial Officer
<PAGE> 70
STATE OF NEW YORK )
)ss.:
COUNTY OF WESTCHESTER )
On the ____ day of March in the year 1999 before me, the undersigned, a Notary
Public in and for said State, personally appeared John Maag, personally known to
me or proved to me on the basis of satisfactory evidence to be the individual
whose name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
______________________________
Notary Public
<PAGE> 71
EXHIBIT F
NOTICE OF BORROWING
The Chase Manhattan Bank, as Agent [Date]
for the Lenders party to the
Agreement referred to below
400 Rella Boulevard, Suite 100
Suffern, New York 10901
Gentlemen/women:
Reference is hereby made to that certain Amended and Restated
Multicurrency Credit Agreement dated as of March 31, 1999 (the "Agreement";
capitalized terms used herein and not otherwise defined herein have the meanings
ascribed thereto in the Agreement) among LeCroy Corporation, as borrower (the
"Borrower"), The Chase Manhattan Bank, as agent (the "Agent") and the lenders
named therein (the "Lenders").
Pursuant to Section 2.02 of the Agreement, the undersigned hereby gives
you notice, irrevocably, that the undersigned hereby requests a Borrowing under
the Agreement, and in that connection sets forth below the information relating
to such Borrowing (the "Proposed Borrowing") as required by Section 2.02(a) of
the Agreement:
(i) The Type of Advance comprising the Proposed Borrowing is a [Base
Rate Advance] [Eurocurrency Advance].
(ii) The Business Day of the Proposed Borrowing is _______________,
19__.
(iii) The aggregate amount of the Proposed Borrowing is
_______________.
(iv) The currency of the Proposed Borrowing is [United States
Dollars][Swiss Francs][French Francs][German Deutsche Marks][Italian
Lire][British Pounds Sterling][Japanese Yen][other __________________].
(v) The initial Interest Period for each Eurocurrency Advance made as
part of the Proposed Borrowing is ______ months.
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the Proposed Borrowing:
(A) The representations and warranties contained in Section 4.01 of the
Agreement are correct on and as of the date of the Proposed Borrowing, before
and after giving effect to the Proposed Borrowing and to the application of
proceeds therefrom (with respect to Borrowings other than the initial Borrowing
such representations and warranties shall be correct in all material
<PAGE> 72
respects, except to the extent contemplated in the Loan Documents, or except to
the extent any such representation or warranty is no longer current as of the
date of such Borrowing because of a reference to a specific date); and
(B) no event has occurred and is continuing, or would result from such
Proposed Borrowing or from the application of the proceeds therefrom, which
constitutes a Default or Event of Default.
Very truly yours,
LECROY CORPORATION
By:________________________
Name:
Title:
<PAGE> 73
Schedule 1
to
Assignment and Acceptance
Dated _____________, 19__
<TABLE>
Section 1.
<S> <C>
Percentage Interest: ______________%
Section 2.
Assignee's Commitment: $______________
Aggregate Outstanding Principal Amount
Advances owing to the Assignee:
$______________
A Note payable to the order of the Assignee
Dated: _________, 19__
Principal amount: $______________
A Note payable to the order of the Assignor
Dated: _________, 19__
Principal amount: $______________
Section 3.
Effective Date*: _________, 19__
</TABLE>
[NAME OF ASSIGNOR]
By:_________________________________
Title:
[NAME OF ASSIGNEE]
By:_________________________________
Title:
Accepted this _____ day
of ________________, 19___
[NAME OF AGENT]
By:_______________________
Title:
AGREED AND CONSENTED TO:
LECROY CORPORATION
By:_______________________
Title:
____________
* This date should be no earlier than the date of acceptance by the Agent.
<PAGE> 74
EXHIBIT G
FORM OF OPINION LETTER OF COUNSEL
<PAGE> 75
SCHEDULE I
LECROY CORPORATION
Amended and Restated Multicurrency Credit Agreement dated as of March 31, 1999
among LeCroy Corporation, as Borrower, and the Lenders named therein, as
Lenders, and The Chase Manhattan Bank, as Agent
<TABLE>
<CAPTION>
Name of Lender Domestic Lending Office Eurocurrency Lending Office
- -------------- ----------------------- ---------------------------
<S> <C> <C>
The Chase Manhattan Bank 400 Rella Boulevard 400 Rella Boulevard
Suite 100 Suite 100
Suffern, New York 10901 Suffern, New York 10901
Phone: (914) 368-2272 Phone: (914) 368-2272
Fax: (914) 368-2366 Fax: (914) 368-2366
Attention: C. William Cosgrove Attention: C. William Cosgrove
Bankboston, N.A. Landmark Square, Suite 2002 Landmark Square, Suite 2002
Stamford, Connecticut 06901 Stamford, Connecticut 06901
Phone: (203) 973-1944 Phone: (203) 973-1944
Fax: (203) 967-8169 Fax: (203) 967-8169
Attention: Sheila A. Maher Attention: Sheila A. Maher
</TABLE>
<PAGE> 76
SCHEDULE 2
LeCroy Corporation
Litigation
None
<PAGE> 77
SCHEDULE 3
LECROY CORPORATION
Existing Debt and Guaranties
<PAGE> 78
SCHEDULE 4
LeCroy Corporation
Existing Liens
<TABLE>
<CAPTION>
Secured Jurisdiction File Number Date Filed Collateral Comments
------- ------------ ----------- ---------- ---------- --------
<S> <C> <C> <C> <C> <C>
AT&T Capital Services Corp. DOS, NY 006149 1/10/95 Specific Equipment Subject to Alternative
Purchase Plan dated
1/4/95
Chase Equipment Leasing, DOS, NY 220543 11/01/95 equipment and fixtures
Inc. (missing attachment A)
Pitney Bowes Credit DOS, NY 236463 11/17/97 leased equipment
Corporation
New England Merchants Rockland Co., NY 89-1774 5/9/89 equipment and property
Funding Corporation (missing schedule)
94-1059 4/18/94 assign to BOT Funding
Corporation
94-1060 4/18/94 continued
Chase Equipment Leasing, Rockland Co., NY 95-3086 11/2/95 equipment and fixtures
Inc.
</TABLE>
<PAGE> 79
SCHEDULE 5
LECROY CORPORATION
Investments
<PAGE> 80
SCHEDULE 6
LECROY CORPORATION
Transactions with Affiliates
None
<PAGE> 81
SCHEDULE 7
LECROY CORPORATION
Schedule of Subsidiaries and Ownership
<PAGE> 82
SCHEDULE 8
Payment Offices for Alternative Currencies
<TABLE>
<CAPTION>
CURRENCY CORRESPONDING BANK ACCOUNT NUMBER
-------- ------------------ --------------
<S> <C> <C>
Swiss Franc Union Bank of Switzerland 752-8505-R
Zurich, Switzerland
French Franc Caisse Nationale Credit Agricole 0995-3045-2000-00
Paris, France
Deutsche Mark Chase Manhattan Bank AG Frankfurt 623-12-00178
Frankfurt, Germany
Italian Lira Chase Manhattan Bank Milan 601-003-5654
Milan, Italy
British Pound Chase Manhattan Bank London 1200-4677
London, England
Japanese Yen Chase Manhattan Bank Tokyo 019-5007-521
Tokyo, Japan
Euro Chase Manhattan Bank AG Frankfurt 600-16-00037
Frankfurt, Germany
</TABLE>
<PAGE> 83
SCHEDULE 9
Commitments
Commitments totaling $20,000,000.00 (from March 31, 1999
through and including June 30, 2000)
<TABLE>
<CAPTION>
Lenders Commitment
------- ----------
<S> <C>
THE CHASE MANHATTAN BANK $13,400,000.00
BANKBOSTON, N.A. $ 6,600,000.00
--------------
TOTAL $20,000,000.00
</TABLE>
Commitments totaling $17,000,000.00 (from and including
July 1, 2000 through and including the September 30, 2000)
<TABLE>
<CAPTION>
Lenders Commitment
- ------- ----------
<S> <C>
THE CHASE MANHATTAN BANK $11,390,000.00
BANKBOSTON, N.A. $ 5,610,000.00
--------------
TOTAL $17,000,000.00
</TABLE>
Commitments totaling $15,000,000.00 (from and including
October 1, 2000 through and including the Termination Date)
<TABLE>
<CAPTION>
Lenders Commitment
------- ----------
<S> <C>
THE CHASE MANHATTAN BANK $10,050,000.00
BANKBOSTON, N.A. $ 4,950,000.00
--------------
TOTAL $15,000,000.00
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Company's Form 10-Q for the fiscal quarter ended March 31, 1999
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JUN-30-1999
<PERIOD-END> MAR-31-1999
<CASH> 2,495
<SECURITIES> 0
<RECEIVABLES> 31,823
<ALLOWANCES> 545
<INVENTORY> 26,475
<CURRENT-ASSETS> 63,315
<PP&E> 39,294
<DEPRECIATION> 25,418
<TOTAL-ASSETS> 97,320
<CURRENT-LIABILITIES> 38,392
<BONDS> 0
0
0
<COMMON> 76
<OTHER-SE> 48,736
<TOTAL-LIABILITY-AND-EQUITY> 97,320
<SALES> 78,518
<TOTAL-REVENUES> 83,534
<CGS> 47,435
<TOTAL-COSTS> 47,435
<OTHER-EXPENSES> 54,596
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 155
<INCOME-PRETAX> (5,810)
<INCOME-TAX> 1,098
<INCOME-CONTINUING> (6,908)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (6,908)
<EPS-PRIMARY> (0.91)
<EPS-DILUTED> (0.91)
</TABLE>
