<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
- ----- EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1998
------------------------------------------------
OR
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
- ----- EXCHANGE ACT OF 1934
For the transition period from _____________________to _________________________
Commission file number 0-3905
-----------------
TRANSMATION, INC.
- --------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
OHIO 16-0874418
- --------------------------------------------------------------------------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
10 Vantage Point Drive, Rochester, NY 14624
- ----------------------------------------------------- --------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code 716-352-7777
-----------------------------
Former name, former address and former fiscal year, if changed since last report
Indicate by check mark (X) whether the registrant, (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to such
filing requirements for the past 90 days. Yes X No
----- -----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Class Number of Shares Outstanding Date
- ----- ---------------------------- ----
Common 5,885,402 September 30, 1998
TOTAL PAGES - ____
<PAGE> 2
Part I
FINANCIAL INFORMATION
---------------------
Item 1. Financial Statements
- ------- --------------------
TRANSMATION, INC.
CONSOLIDATED BALANCE SHEET
Unaudited
<TABLE>
<CAPTION>
Sept. 30, March 31,
ASSETS: 1998 1998
----------------- -----------------
<S> <C> <C>
Current Assets:
Cash $630,557 $652,664
Accounts Receivable, less allowance
for doubtful accounts of $527,000 at 9/30/98
and $592,000 at 3/31/98 10,698,073 12,540,347
Inventories 10,607,766 10,675,829
Prepaid Expenses and Deferred Charges 1,342,668 1,344,799
Deferred Tax Assets 544,338 540,172
----------------- -----------------
Current Assets 23,823,402 25,753,811
Properties, at cost, less accumulated
Depreciation 6,177,780 6,405,053
Goodwill, less accum. Amortization of $1,853,366 at
9/30/98 and $1,320,500 at 3/31/98 18,667,082 19,199,947
Deferred Charges 203,984 204,308
Deferred Income Taxes 59,034 58,582
Other Assets 262,798 253,513
----------------- -----------------
$49,194,080 $51,875,214
================= =================
LIABILITIES AND STOCKHOLDERS' EQUITY:
Current Liabilities
Notes Payable $2,500,000
Current Portion of Long Term Debt $2,000,000 2,856,000
Accounts Payable 5,536,173 7,861,779
Accrued Payrolls, Commissions & Other 1,846,077 2,174,389
Income Taxes Payable 217,735 234,984
----------------- -----------------
Current Liabilities 9,599,985 15,627,152
Long-Term Debt 24,432,200 21,752,922
Deferred Compensation 474,532 509,981
----------------- -----------------
34,506,717 37,890,055
----------------- -----------------
Commitments and Contingent Liabilities
Stockholders' Equity:
Common Stock, par value $.50 per share
Authorized - 15,000,000 shares - issued
and outstanding - 5,885,402 at 9/30/98,
5,830,942 at 3/31/98 (including 2,853,692
shares issued on 7/22/97) 2,942,701 2,915,471
Capital in Excess of Par Value 2,433,372 2,227,117
Accumulated Translation Adjustment (226,730) (120,788)
Retained Earnings 9,538,020 8,963,359
----------------- -----------------
14,687,363 13,985,159
----------------- -----------------
$49,194,080 $51,875,214
================= =================
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
2
<PAGE> 3
TRANSMATION, INC.
CONSOLIDATED STATEMENT OF INCOME
UNAUDITED
<TABLE>
<CAPTION>
7/1 - 7/1 - 4/1 - 4/1 -
9/30/98 9/30/97 9/30/98 9/30/97
-------------------------------- -------------------------------
<S> <C> <C> <C> <C>
Net Sales $16,338,809 $19,612,705 $34,298,118 $38,725,787
-------------------------------- -------------------------------
Costs and Expenses:
Cost of Product Sold 10,789,275 13,380,360 22,616,720 26,456,181
Selling & Admin. Expenses 4,105,171 4,686,378 8,734,246 9,352,112
Research & Develop. Costs 421,635 416,958 855,956 816,365
Interest Expense 556,625 703,506 1,147,035 1,291,804
-------------------------------- -------------------------------
15,872,706 19,187,202 33,353,957 37,916,462
-------------------------------- -------------------------------
Income Before Taxes 466,103 425,503 944,161 809,325
Provision for Income Taxes
State and Federal 181,000 160,750 369,500 302,950
-------------------------------- -------------------------------
Net Income 285,103 264,753 574,661 506,375
Retained Earnings at
Beginning of Period 9,252,917 8,207,010 8,963,359 7,965,388
-------------------------------- -------------------------------
Retained Earnings at
End of Period $9,538,020 $8,471,763 $9,538,020 $8,471,763
================================ ===============================
Net Income Per Share-Basic $0.05 $0.05 $0.10 $0.09
================================ ===============================
Net Income Per Share-Diluted $0.05 $0.04 $0.09 $0.08
================================ ===============================
</TABLE>
See Notes to Consolidated Financial Statements
3
<PAGE> 4
TRANSMATION, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
UNAUDITED
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
-------------------------- ------------------------------
7/1/98 - 7/1/97 - 4/1/98 - 4/1/97 -
9/30/98 9/30/97 9/30/98 9/30/97
-------------------------- ------------------------------
<S> <C> <C> <C> <C>
Cash Flows from Operating Activities
Net Income $285,103 $264,753 $574,661 $506,375
Items Not Requiring (Providing) Cash
Included in Income
Depreciation and Amortization 704,272 710,674 1,438,105 1,386,479
Provision for Losses on Accounts Receivable (14,000) 26,000 (65,000) (40,900)
Other Assets (9,285) (9,067) (9,285) 289,877
(Increase)Decrease in Accounts Receivable 235,701 (541,679) 1,907,274 (881,235)
Decrease(Increase) in Inventories 353,003 (7,405) 68,063 (1,009,940)
Decrease(Increase) in Prepaid Expenses
& Deferred Charges 20,994 (792,952) 2,455 (838,474)
(Decrease)Increase in Accounts Payable (1,066,876) (619,511) (2,325,606) (1,543,289)
Increase(Decrease) in Accrued Payrolls, Commissions
and Other Liabilities 47,261 56,351 (328,312) 67,013
Increase(Decrease) in Income Taxes Payable 52,375 162,404 (21,866) (365,085)
(Decrease) in Deferred Compensation (17,725) (19,142) (35,449) (38,285)
-------------------------- ------------------------------
Net Cash Provided(used) by Operating Activities 590,823 (769,574) 1,205,040 (2,467,464)
-------------------------- ------------------------------
Cash Flows from Investing Activities:
Purchase of EIL Instruments, Inc. (22,000,000)
Purchases of Properties (314,774) (148,401) (677,966) (1,351,788)
-------------------------- ------------------------------
Net Cash (used in) Investing Activities (314,774) (148,401) (677,966) (23,351,788)
-------------------------- ------------------------------
Cash Flows from Financing Activities:
(Dec)Inc. in Noties Payable & Current Portion of LTD (856,000) 699,216 (3,356,000) 3,400,000
Issuance of Common Stock 122,367 98,311 233,485 325,466
Increase in Long-Term Debt 693,564 50,000 2,679,278 21,537,493
-------------------------- ------------------------------
Net Cash Provided by(used in) Financing Activities (40,069) 847,527 (443,237) 25,262,959
-------------------------- ------------------------------
Effect of Exchange Rate Changes on Cash (67,627) 21,959 (105,944) 25,254
-------------------------- ------------------------------
Net Increase(Decrease) in Cash 168,353 (48,489) (22,107) (531,039)
Cash at Beginning of Period 462,204 275,665 652,664 758,215
-------------------------- ------------------------------
Cash at End of Period $630,557 $227,176 $630,557 $227,176
========================== ==============================
Cash Paid for Interest and Income Taxes is as follows:
Interest Paid $417,713 $631,594 $1,055,416 $775,573
Taxes Paid $147,830 None $338,127 $682,715
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
4
<PAGE> 5
TRANSMATION, INC.
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
UNAUDITED
<TABLE>
<CAPTION>
Number of
Shares of $.50
Par Value Common Stock Capital Accumulated
Common Stock Issued and in Excess of Retained Translation
Outstanding Outstanding Par Value Earnings Adjustment
----------------- ----------------- ----------------- ----------------- --------------
<S> <C> <C> <C> <C> <C>
Balance, March 31, 1996 2,451,946 $1,225,973 $1,124,583 $5,905,652 ($93,819)
Issuance of Stock 374,466 187,233 1,997,163
Currency Translation Activity (36,713)
Net Income 2,059,736
----------------- ----------------- ----------------- ----------------- --------------
Balance, March 31, 1997 2,826,412 1,413,206 3,121,746 7,965,388 (130,532)
Two for One Stock Split
On 7/22/97 2,853,692 1,426,846 (1,426,846)
Issuance of Stock 150,838 75,419 532,217
Currency Translation Activity 9,744
Net Income 997,971
----------------- ----------------- ----------------- ----------------- --------------
Balance, March 31,1998 5,830,942 2,915,471 2,227,117 8,963,359 (120,788)
Issuance of Stock 54,460 27,230 206,255
Currency Translation Activity (105,942)
Net Income 574,661
----------------- ----------------- ----------------- ----------------- --------------
Balance, Sept. 30, 1998 5,885,402 $2,942,701 $2,433,372 $9,538,020 ($226,730)
================= ================= ================= ================= ==============
</TABLE>
SEE NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
5
<PAGE> 6
Note 1 - Borrowings
----------
On August 7, 1998, the Company refinanced its existing bank debt and entered
into a new $32,000,000 Credit and Loan Agreement. This agreement is comprised of
a $15,000,000 revolving credit agreement which matures on July 1, 2001, and two
term loans. Term Loan A, in the amount of $9,000,000, requires quarterly
repayments of $500,000 commencing November 1998 and extending through the Term
Loan A maturity date of January 1, 2003. Term Loan B, in the amount of
$8,000,000, with a maturity date of June 1, 2007, requires interest only
payments through April 1, 2001. Thereafter, aggregate quarterly payments
sufficient to fully amortize the outstanding balance of Term Loan B at its
maturity date of June 1, 2007 are required. Interest is payable on all Loans on
a formula basis, at the Company's option, at rates related to prime or above
LIBOR determined on the basis of Company performance as determined by its
leverage ratio. At September 30, 1998, interest paid on Term Loan A was at 1.60%
above LIBOR or at prime; on Term Loan B, interest was paid at 2.15% above LIBOR
or at 37.5% above prime. At September 30, 1998, $9,432,200 was borrowed under
the Revolving Credit Facility; interest is determined on the revolving credit
borrowings on the same basis that it is determined under Term Loan A. At
September 30, 1998, interest was payable on the above loans at rates ranging
from 7.29% to 8.50%.
Required payments under Term Loan A and Term Loan B are as follows:
<TABLE>
<CAPTION>
Term Loan A Term Loan B
----------- -----------
<S> <C> <C>
Oct. 1, 1998 - Sept. 30, 1999 $2,000,000
Oct. 1, 1999 - Sept. 30, 2000 $2,000,000
Oct. 1, 2000 - Sept. 30, 2001 $2,000,000
Oct. 1, 2001 - Sept. 30, 2002 $2,000,000 $ 666,667
Oct. 1. 2002 - Sept. 30, 2003 $1,000,000 $1,333,333
Oct. 1, 2003 - Sept. 30, 2004 $1,333,334
Oct. 1, 2004 - Sept. 30, 2005 $1,333,333
Oct. 1, 2005 - Sept. 30, 2006 $1,333,334
Oct. 1, 2006 - Sept. 30, 2007 $ 666,667
</TABLE>
The Company has entered into a contract whereby the base rate it will pay on
$10,000,000 of its debt equals LIBOR of 6.20% plus the appropriate markup over
LIBOR as indicated above. This contract extends for 5 years from the date of the
loan.
The Company is in compliance with all provisions of its loan agreement as of
September 30, 1998.
6
<PAGE> 7
Note 2 - Inventories
- --------------------
The major classifications of inventory are as follows:
<TABLE>
<CAPTION>
Sept. 30, March 31,
1998 1998
---- ----
<S> <C> <C>
Raw Materials and Purchased Parts $ 4,229,662 $ 4,221,730
Work in Process 630,728 629,545
Finished Products 6,541,833 6,529,564
----------- -----------
11,402,223 11,380,839
Less Inventory Reserves (794,457) (705,010)
----------- -----------
$10,607,766 $10,675,829
=========== ===========
</TABLE>
Note 3 - Net Income Per Share
- -----------------------------
In 1997, the Company adopted SFAS No. 128, "Earnings Per Share," which requires
disclosure of basic and diluted earnings per share. Basic earnings per share is
computed based on the weighted average number of common shares outstanding
during the period. Diluted earnings per share reflects the assumed conversion of
dilutive stock options and warrants. In computing the per share effect of
assumed conversion, funds which would have been received from the exercise of
options and warrants are considered to have been used to purchase common shares
at average market prices for the period, and the resulting net additional common
shares are included in the calculation of average common shares outstanding. All
previously reported earnings per share amounts were restated upon adoption of
SFAS No. 128.
The table below summarizes the amounts used to calculate basic and diluted
earnings per share:
<TABLE>
<CAPTION>
SIX MONTHS ENDED SEPT. 30, 1998 SIX MONTHS ENDED SEPT. 30, 1997
------------------------------- -------------------------------
AVERAGE AVERAGE
NET OUTSTANDING PER NET OUTSTANDING PER
EARNINGS SHARES SHARE EARNINGS SHARES SHARE
-------------- --------------- ------------ -------------- --------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Basic Earnings
Per Share $574,661 5,808,712 $0.10 $506,375 5,678,543 $0.09
Effect of Dilutive
Options & Warrants 240,670 840,876
-------------- --------------- ------------ -------------- --------------- ------------
Diluted Earnings
Per Share $574,661 6,049,382 $0.09 $506,375 6,519,419 $0.08
============== =============== ============ ============== =============== ============
</TABLE>
7
<PAGE> 8
Certain anti-dilutive outstanding stock options and warrants were excluded from
the calculation of average shares outstanding since their exercise prices
exceeded the average market price of common shares during the period. The
anti-dilutive stock options and warrants so excluded at the end of each of the
last two interim periods and their associated exercise prices are summarized
below. The options expire at various times between 1999 and 2002.
<TABLE>
<CAPTION>
Number of Exercise
Options and Warrants Price
-------------------- -----
<S> <C> <C>
1998 1,110,960 $4.1875 - $9.25
1997 None None
</TABLE>
Item 2.
- -------
Management's Discussion and Analysis of Financial Condition and Results of
- --------------------------------------------------------------------------
Operations
- ----------
Financial Condition
- -------------------
The Company's primary sources of liquidity and capital are funds provided
through its borrowing agreement with banks, its profitability and management of
its Balance Sheet.
During the quarter ended September 30, 1998, the Company refinanced its bank
debt and entered into a new $32,000,000 agreement with a lender. That
relationship is described in Note 1. Additionally, during the quarter, accounts
receivable balances owing to the Company were reduced by $235,700 and
Inventories owned by the Company were reduced by $353,000. Trade accounts
payable were reduced by $1,066,900 during the quarter. This reduction resulted
from payment of amounts due others in accordance with our normal payment terms.
The Company will strive to improve its cash flows and reduce bank borrowings
from current levels during the balance of the current fiscal year through
increased profitability, by reducing both accounts receivable and inventory
balances, and by increasing its trade payables.
8
<PAGE> 9
Results of Operations
- ---------------------
Comparison of July 1, 1998 - September 30, 1998
- -----------------------------------------------
to
July 1, 1997 - September 30, 1997
---------------------------------
Sales totaled $16,338,800 in the quarter ended September 30, 1998. This compares
to sales of $19,612,700 last year and represents a 16.7% reduction from 1997 to
1998. The reduced level of sales in 1998 results from uncertain economic
conditions which exist in Southeast Asia, an historically strong market for the
Company, uncertainty which resulted in the U.S. market as the result of Asian
uncertainty, and from adverse weather conditions which existed in the Texas gulf
region of the U.S. which also adversely affected the Company's sales effort.
Cost of Product Sold totaled 66.0% of sales in 1998 versus 68.2% of sales in
1997. This improvement is the result of cost improvements made primarily in the
Company's calibration services operation. Selling and Administrative expenses
were reduced by 12.4% in 1998 compared to 1997. These reductions were the result
of cost savings programs implemented by the Company. Interest Expense was 20.8%
lower in 1998 than in 1997. This reduction is the result of lower average debt
in 1998 compared to 1997.
Comparison of April 1, 1998 - September 30, 1998
- ------------------------------------------------
To
--
April 1, 1997 - September 30, 1997
----------------------------------
Sales totaled $34,298,100 in the six-month period ended September 30, 1998. This
is a reduction of 11.4% from the same period one year ago. Sales results in 1998
were reduced as the result of economic uncertainties in Southeast Asia which
caused uncertainties throughout the rest of the world. Additionally, adverse
weather conditions in parts of the U.S. negatively impacted sales in the most
recent six-month period.
Cost of Product Sold in the six months ended September 30, 1998 totaled 65.9% of
sales compared to 68.3% of sales in the same six-month period last year. The
improvement in 1998 is primarily the result of cost improvements made in the
Company's cal-lab operation.
Sales and Administrative expenses were reduced by 6.6% in the first half of 1998
compared to the same costs in 1997. These reductions were the result of cost
savings programs implemented by the Company. Interest expense was 11.2% lower in
1998 than in 1997. This reduction was the result of reduced borrowing in 1998
compared to 1997.
9
<PAGE> 10
PART II
-------
OTHER INFORMATION
-----------------
Item 4. Submission of Matters to a Vote of Security Holders
- ------- ---------------------------------------------------
On August 18, 1998, shareholders of the Company approved the following proposals
at the Company's Annual Meeting.
Proposal 1: To elect Directors to serve until the 2001 Annual Meeting:
<TABLE>
<CAPTION>
Authority
For Withheld
--- --------
<S> <C> <C>
Nancy D. Hessler 4,920,687 58,320
Robert G. Klimasewski 4,921,087 57,920
Eric W. McInroy 4,920,487 58,520
</TABLE>
Messrs. Chiarella, Oberlies, Garelick, Murphy, Palmer and Richardson
did not stand for re-election to Transmation's Board of Directors in
1998.
Proposal 2: To approve and ratify an amendment to the Transmation, Inc. Amended
and Restated Directors' Warrant Plan which provides for an acceleration of
vesting of warrants granted thereunder upon a change of control of the Company.
<TABLE>
<CAPTION>
For Against Abstain
--- ------- -------
<S> <C> <C>
4,423,245 502,975 49,787
</TABLE>
Proposal 3: To approve and ratify a further amendment to the Transmation, Inc.
Amended and Restated Directors' Warrant Plan which provides for automatic annual
warrant grants under that Plan in 1998 and thereafter until all shares available
under that Plan are exhausted.
<TABLE>
<CAPTION>
For Against Abstain
--- ------- -------
<S> <C> <C>
4,396,607 533,360 49,040
</TABLE>
10
<PAGE> 11
Proposal 4: To approve and ratify the selection of Pricewaterhouse Coopers LLP
as independent auditors for the year ending March 31, 1999.
<TABLE>
<CAPTION>
For Against Abstain
--- ------- -------
<S> <C> <C> <C>
4,967,2261 4,014 7,732
</TABLE>
Item 6. Exhibits and Reports on Form 8-K
a. See Index to Exhibits.
b. Reports on Form 8-K.
No reports on Form 8-K have been filed during the quarter
for which this report is filed.
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.
TRANSMATION, INC.
Date November 13 , 1998 /s/ Eric W. McInroy
-------------------------------- ----------------------------------
Eric W. McInroy
President and CEO
Date November 13 , 1998 /s/ John A. Misiaszek
-------------------------------- ----------------------------------
John A. Misiaszek
Vice President, Finance
11
<PAGE> 12
INDEX TO EXHIBITS
(2) Plan of acquisition, reorganization, arrangement, liquidation or
succession Not applicable.
(3) Articles of Incorporation and By Laws
(i) The Articles of Incorporation, as amended, are incorporated
herein by reference to Exhibit 4(a) to the Registrant's
Registration Statement on Form S-8 (Registration No. 33-61665)
filed on August 8, 1995. Certificate of Amendment thereto is
incorporated herein by reference to Exhibit I to the
Registrant's Form 10-Q for the quarter ended September 30,
1996.
(ii) By-laws, as amended through August 18, 1987, are incorporated
herein by reference to Exhibit (3) to the Registrant's Form
10-K for the year ended March 31, 1988.
(4) Instruments defining the rights of security holders, including
indentures
(a) Credit and Loan Agreement dated August 7, 1998 between Transmation,
Inc. and KeyBank National Association is included herein as Exhibit
4(a).
(10) Material Contracts
The documents listed under (4) are incorporated herein by reference.
* (a) Amendments No. 3 and 4 to the Transmation, Inc. Amended and
Restated Directors' Warrant Plan are incorporated herein by reference
to the Registrant's definitive proxy material filed on July 7, 1998 in
connection with the 1998 Annual Meeting of Shareholders.
(11) Statement re Computation of Per Share Earnings
Computation can be clearly determined from Note 3 to the Financial
Statements included herein at Item 1.
(15) Letter re unaudited interim financial information
Not applicable.
(18) Letter re change in Accounting Principles
Not applicable.
(19) Report furnished to security holders
Not applicable.
(22) Published report regarding matters submitted to vote of security
holders Not applicable.
(23) Consents of Experts and Counsel
Not applicable.
12
<PAGE> 13
(24) Power of attorney
Not applicable.
*(27) Financial Data Schedule
The Financial Data Schedule is included herein as Exhibit 27.
(99) Additional Exhibits
Not applicable.
- -----------------
* Exhibit filed with this Report
13
<PAGE> 1
EXHIBIT 4(a)
CREDIT AND LOAN AGREEMENT
BY AND AMONG
TRANSMATION, INC.
THE BORROWER,
THE LENDERS PARTY
HERETO FROM TIME TO TIME,
THE LENDERS,
AND
KEYBANK NATIONAL ASSOCIATION,
THE AGENT
DATED AS OF AUGUST 7, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<S> <C>
ARTICLE I: DEFINITIONS; CONSTRUCTION...................................................................1
1.01. CERTAIN DEFINITIONS...........................................................................1
1.02. CONSTRUCTION.................................................................................12
1.03. PROVISIONS RELATING TO THIS AGREEMENT........................................................13
1.04. ACCOUNTING PRINCIPLES........................................................................13
ARTICLE II: THE CREDITS...............................................................................14
A. REVOLVING CREDIT FACILITY.......................................................................14
2.01. REVOLVING CREDIT LOANS.......................................................................14
2.02. COMMITMENT FEE; REDUCTION OF THE REVOLVING CREDIT COMMITTED AMOUNTS..........................16
2.03. MAKING OF LOANS..............................................................................17
2.04. INTEREST RATES...............................................................................19
B. TERM LOAN FACILITIES............................................................................20
2.05. TERM LOAN A..................................................................................21
2.06. INTEREST RATES...............................................................................21
2.07. TERM LOAN B..................................................................................22
2.08. INTEREST RATES FOR TERM LOAN B...............................................................23
C. ADDITIONAL PROVISIONS RELATING TO ALL CREDITS AND LOANS.........................................25
2.09. FIXED LIBOR RATE PROVISIONS..................................................................25
2.10. CONVERSION OR RENEWAL OF INTEREST RATE OPTIONS...............................................26
2.11. PREPAYMENTS GENERALLY........................................................................26
2.12. OPTIONAL PREPAYMENTS.........................................................................27
2.13. OTHER REPAYMENTS.............................................................................27
2.14. INTEREST PAYMENT DATES.......................................................................28
2.15. PRO RATA TREATMENT; PAYMENTS GENERALLY; INTEREST ON OVERDUE AMOUNTS..........................28
2.16. ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES.............................................34
2.17. TAXES........................................................................................35
2.18. REPLACEMENT OR REMOVAL OF LENDER.............................................................36
2.19. GUARANTEES...................................................................................37
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF BORROWER...............................................37
3.01. CORPORATE STATUS.............................................................................37
3.02. CORPORATE POWER AND AUTHORIZATION............................................................37
3.03. EXECUTION AND BINDING EFFECT.................................................................37
3.04. GOVERNMENTAL APPROVALS AND FILINGS...........................................................38
3.05. ABSENCE OF CONFLICTS.........................................................................38
3.06. AUDITED FINANCIAL STATEMENTS.................................................................38
3.07. CONSOLIDATING AND CONSOLIDATED FINANCIAL STATEMENTS..........................................39
3.08. ABSENCE OF UNDISCLOSED LIABILITIES...........................................................39
3.09. ABSENCE OF MATERIAL ADVERSE CHANGES..........................................................39
3.10. ACCURATE AND COMPLETE DISCLOSURE.............................................................39
3.11. OWNERSHIP AND CONTROL........................................................................40
3.12. LITIGATION...................................................................................40
3.13. ABSENCE OF EVENTS OF DEFAULT.................................................................40
3.14. INSURANCE....................................................................................40
3.15. TITLE TO PROPERTY............................................................................40
3.16. INTELLECTUAL PROPERTY........................................................................40
3.17. TAXES........................................................................................41
3.18. EMPLOYEE BENEFITS............................................................................41
3.19. ENVIRONMENTAL MATTERS........................................................................41
3.20. SECURITIES LAWS COMPLIANCE...................................................................41
</TABLE>
i
<PAGE> 3
<TABLE>
<S> <C>
3.21. MARGIN REGULATIONS...........................................................................42
3.22. SUBSIDIARIES.................................................................................42
3.23. PARTNERSHIPS, ETC............................................................................42
3.24. LABOR RELATIONS..............................................................................42
3.25. YEAR 2000 COMPLIANCE.........................................................................43
ARTICLE IV: CONDITIONS................................................................................43
4.01. CONDITIONS TO ENTERING INTO AGREEMENT........................................................43
4.02. CONDITIONS TO ALL LOANS......................................................................44
ARTICLE V: AFFIRMATIVE COVENANTS......................................................................45
5.01. BASIC REPORTING REQUIREMENTS.................................................................45
5.02. INSURANCE....................................................................................48
5.03. PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND PRIORITY CLAIMS.............................49
5.04. PRESERVATION OF CORPORATE STATUS.............................................................49
5.05. GOVERNMENTAL APPROVALS AND FILINGS...........................................................49
5.06. MAINTENANCE OF PROPERTIES....................................................................49
5.07. AVOIDANCE OF OTHER CONFLICTS.................................................................49
5.08. FINANCIAL ACCOUNTING PRACTICES...............................................................50
5.09. USE OF PROCEEDS..............................................................................50
5.10. CONTINUATION OF OR CHANGE IN BUSINESS........................................................50
5.11. CONSOLIDATED TAX RETURN......................................................................50
5.12. FISCAL YEAR..................................................................................50
5.13. NEW SUBSIDIARIES.............................................................................51
5.14. YEAR 2000 COMPLIANCE.........................................................................51
ARTICLE VI: NEGATIVE COVENANTS........................................................................51
6.01. FINANCIAL COVENANTS..........................................................................51
6.02. LIENS........................................................................................52
6.03. INDEBTEDNESS.................................................................................53
6.04. LOANS, ADVANCES AND INVESTMENTS..............................................................53
6.05. RESTRICTED PAYMENTS..........................................................................54
6.06. LIMITATION ON OTHER RESTRICTIONS ON AMENDMENT OF THE LOAN DOCUMENTS, ETC.....................54
6.07.. LEASE OBLIGATIONS............................................................................54
6.08. DISPOSITIONS OF PROPERTIES...................................................................54
6.09. ISSUANCE OF SUBSIDIARY STOCK.................................................................54
6.10. DEALINGS WITH AFFILIATES.....................................................................55
6.11. LIMITATIONS ON MODIFICATION OF CERTAIN AGREEMENTS AND INSTRUMENTS............................55
6.12. LIMITATION ON OTHER RESTRICTIONS ON DIVIDENDS BY SUBSIDIARIES, ETC...........................55
6.13. ACQUISITION..................................................................................56
ARTICLE VII: DEFAULTS.................................................................................56
7.01. EVENTS OF DEFAULT............................................................................56
7.02. CONSEQUENCES OF AN EVENT OF DEFAULT..........................................................58
7.03. LETTERS OF CREDIT............................................................................59
ARTICLE VIII: THE AGENT...............................................................................59
8.01. APPOINTMENT..................................................................................59
8.02. GENERAL NATURE OF AGENT'S DUTIES.............................................................60
8.03. EXERCISE OF POWERS...........................................................................60
8.04. GENERAL EXCULPATORY PROVISIONS...............................................................60
8.05. ADMINISTRATION BY THE AGENT..................................................................61
8.06. LENDER NOT RELYING ON AGENT OR OTHER LENDERS.................................................62
8.07. INDEMNIFICATION..............................................................................62
8.08. AGENT IN ITS INDIVIDUAL CAPACITY.............................................................63
8.09. HOLDERS OF NOTES.............................................................................63
</TABLE>
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<PAGE> 4
<TABLE>
<S> <C>
8.10. SUCCESSOR AGENT..............................................................................63
8.11. CALCULATIONS.................................................................................64
8.12. FUNDING BY AGENT.............................................................................64
ARTICLE IX: MISCELLANEOUS.............................................................................64
9.01. HOLIDAYS.....................................................................................64
9.02. RECORDS......................................................................................64
9.03. AMENDMENTS AND WAIVERS.......................................................................65
9.04. NO IMPLIED WAIVER: CUMULATIVE REMEDIES.......................................................65
9.05. NOTICES......................................................................................66
9.06. EXPENSES; TAXES; INDEMNITY...................................................................66
9.07. SEVERABILITY.................................................................................67
9.08. PRIOR UNDERSTANDINGS.........................................................................67
9.09. DURATION; SURVIVAL...........................................................................68
9.10. COUNTERPARTS; FURTHER ASSURANCES.............................................................68
9.11. LIMITATION ON PAYMENTS.......................................................................68
9.12. SET-OFF......................................................................................68
9.13. SHARING OF COLLECTIONS.......................................................................69
9.14. SUCCESSORS AND ASSIGNS: ASSIGNMENTS..........................................................69
9.15. RESERVED.....................................................................................73
9.16. GOVERNING LAW; SUBMISSION TO JURISDICTION: WAIVER OF JURY TRIAL; LIMITATION OF LIABILITY....73
*Exhibit A: Form of Revolving Credit Note
*Exhibit B: Form of Security Agreements
*Exhibit C: Form of Term Loan A Note
*Exhibit D: Form of Term Loan B Note
*Exhibit E: Form of Pledge Agreement
*Exhibit F: Form of Guaranties
*Exhibit G: Form of Opinion of Counsel to Borrower
*Exhibit H: Form of Standard Notice and Borrowing Certificate
*Exhibit I: Form of Transfer Supplement
*Exhibit J: Form of Confidentiality Agreement
*Exhibit K: Form of Subordination Agreement
*Exhibit L: Form of Cash Management Services Automated Credit Sweep Agreement
*Exhibit M: Form of Guarantor Security Agreement
*Schedule 1.01: Existing Indebtedness
*Schedule 3.01: Existing Subsidiaries of Borrower
*Schedule 3.12: Material Actions, Suits, Proceedings or Investigations
*Schedule 3.19: Environmental Claims
*Schedule 3.22: Subsidiaries
*Schedule 3.24: Partnership, Joint Venture, Equity or Other similar Interests of Borrower and
Consolidated Subsidiaries
*Schedule 6.02: Existing Liens
*Schedule 6.04: Existing Loans and Investments by Borrower
*Schedule 6.09: Authorized Capitalization, Outstanding Stock and Ownership of Shares of
Each Subsidiary, and Options, Warrants, etc.
*Schedule 6.10: Existing Contracts, Agreements and Arrangements between (i) Borrower and
(ii) any Affiliate of Borrower
*OMITTED EXHIBITS AND SCHEDULES
UPON WRITTEN REQUEST, THE REGISTRANT WILL PROVIDE COPIES OF ANY OF THE
REFERENCED OMITTED EXHIBITS AND SCHEDULES.
</TABLE>
iii
<PAGE> 5
CREDIT AND LOAN AGREEMENT
This CREDIT AND LOAN AGREEMENT (this "Agreement"), dated as of August
7, 1998, by and among TRANSMATION, INC., an Ohio corporation (the "Borrower"),
THE LENDERS PARTY HERETO FROM TIME TO TIME (collectively, the "Lenders") and
KEYBANK NATIONAL ASSOCIATION ("KEYBANK"), a national banking association, as
Agent (in such capacity, together with its successors in such capacity, the
"Agent").
RECITALS:
WHEREAS, the Borrower requested the Lenders extend credit (i) to enable
the Borrower to borrow, repay and reborrow under a revolving line of credit
provided for hereunder amounts not exceeding $15,000,000 aggregate principal
amount at any time outstanding, (ii) to enable the Borrower to borrow and repay
(but not reborrow) under a term loan provided for hereunder amounts not
exceeding $9,000,000 aggregate principal amount at any time outstanding, and
(iii) to enable the Borrower to borrow and repay (but not reborrow) under a term
loan provided for hereunder amounts not exceeding $8,000,000 aggregate principal
amount, and the Lenders have agreed to extend such credits and loans to the
Borrower on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I: DEFINITIONS; CONSTRUCTION
------------------------------------
1.01. CERTAIN DEFINITIONS.
- --------------------------
In addition to other words and terms defined elsewhere in this
Agreement, as used herein the following words and terms shall have the following
meanings, respectively, unless the context hereof otherwise clearly requires:
"Affiliate" of a Person (the "Specified Person") shall mean (a) any
Person which directly or indirectly controls, or is controlled by, or is under
common control with, the Specified Person and (b) any director or officer of the
Specified Person or of a Person who is an Affiliate of the Specified Person
within the meaning of the preceding clause (a). For purposes of the preceding
sentence, "control" of a Person means (a) the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise and (b) in any case shall include direct or indirect
ownership (beneficially or of record) of, or direct or indirect power to vote,
20% or more of the outstanding shares of such Person.
"Agent" shall have the meaning set forth in the introductory paragraph
hereof.
"Applicable Margin Ratio" shall mean the ratio of Funded Debt at the
end of the most recently completed fiscal quarter to EBITDA for the period of
the four (4) then most recently completed fiscal quarters, calculated pursuant
to SECTIONS 2.04(a)(ii)(iii) and 2.06(ii)(iii) respectively.
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<PAGE> 6
"Automatic Swing Line Advance" shall have the meaning set forth in
Section 2.03(d)(i).
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Borrower" shall have the meaning set forth in the introductory
paragraph hereof.
"Business Day" shall mean any day other than a Saturday, Sunday, public
holiday under the laws of the State of New York or other day on which banking
institutions are authorized or obligated to close in the City of Rochester, New
York.
"CERCLIS" shall mean the Comprehensive Environmental Response,
Compensation and Liability Information System List, as the same may be amended
from time to time.
"Change of Control" shall mean that more than 25% of the outstanding
voting shares of Borrower are owned by one or more affiliated parties.
"Closing" shall mean such time in which all conditions set forth in
SECTION 4.01 hereof have been satisfied or waived by the parties hereto in
accordance with this Agreement.
"Closing Date" shall mean the date on which the Closing occurs.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute of similar import, and regulations thereunder, in each case as
in effect from time to time. References to sections of the Code shall be
construed also to refer to any successor sections.
"Commitment" of a Lender shall mean the Revolving Credit Commitment,
the Term Loan A Commitment and the Term Loan B Commitment of such Lender.
"Commitment Fee" shall have the meaning set forth in SECTION 2.02(a)
hereof.
"Commitment Percentage" of a Lender at any time shall mean the
Commitment Percentage for such Lender set forth below its name on the signature
page hereof, subject to transfer to another Lender as provided in SECTION 9.14
hereof and subject to adjustment as provided in SECTION 2.19.
"Confidential Information" shall have the meaning set forth in SECTION
9.14(g).
"Consolidated Net Income" shall mean for any period the net income or
loss of the Borrower and its subsidiaries for such period determined on a
consolidated basis in accordance with generally accepted accounting principles
consistently applied, but excluding:
1. earnings or losses attributable to minority
interests;
2. extraordinary gains or losses;
3. net earning and losses of any subsidiary accrued
prior to the date it became a subsidiary;
4. net earnings of any person (other than a subsidiary)
in which the Borrower or any of its subsidiaries has
an ownership interest unless such net earnings shall
have been received in the form of cash distributions;
2
<PAGE> 7
5. any portion of net earnings of any subsidiary which
for any reason is unavailable for distribution to the
Borrower;
6. earnings, gains or losses resulting from any write-up
or write-down of assets other than in the ordinary
course of business; and
7. the cumulative effect of a change in accounting
principles.
"Controlled Group Member" shall mean with respect to Borrower each
trade or business (whether or not incorporated) which together with Borrower is
treated as a single employer under Section 4001(a)(14) or 4001(b)(1) of ERISA or
Section 414(b), (c), (m) or (o) of the Code.
"Cure Period" shall have the meaning set forth in SECTION 7.01(c).
"Deficit Collected Balance" shall have the meaning set forth in the
Sweep Agreement.
"Demanding Lender" shall have the meaning set forth in SECTION 2.19(a).
"Dollars" and the symbols "$" and "USD" shall mean lawful money of the
United States of America.
"EBITDA" shall mean, in respect of any period, Consolidated Net Income
for such period (i) minus, to the extent added in the computation of such
Consolidated Net Income, gains, net of losses, arising from the disposition of
property other than in the ordinary course of business; (ii) plus, to the extent
deducted in the computation of such Consolidated Net Income, each of the
following:
1. Consolidated Interest Expense (i.e., all amounts
classified as interest expense of the Borrower and
its subsidiaries under generally accepted accounting
principles consistently applied),
2. taxes imposed on or measured by income or excess
profits of the Borrower and its subsidiaries and
franchise taxes however calculated,
3. the amount of all depreciation, depletion and
amortization allowances.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended, and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to sections
of ERISA shall be construed also to refer to any successor sections.
"Environmental Approvals" shall mean any Governmental Action pursuant
to or required under any Environmental Law.
"Environmental Claim" shall mean, with respect to any Person, any
action, suit, proceeding, investigation, notice, claim, complaint, demand,
request for information or other communication (written or oral) by any other
Person (including but not limited to any Governmental Authority, citizens' group
or present or former employee of such Person) alleging, asserting or claiming
any actual or potential (a) violation of any Environmental Law, (b) liability
under any Environmental Law or (c) liability for investigatory costs, cleanup
costs, governmental response costs, natural resources damages, property damages,
personal injuries, fines or penalties arising out of, based on or resulting from
the presence, or release into the environment, of any Environmental Concern
Materials at any location, whether or not owned by such Person.
3
<PAGE> 8
"Environmental Concern Materials" shall mean (a) any flammable
substance, explosive, radioactive material, hazardous material, hazardous waste,
toxic substance, solid waste, pollutant, contaminant or any related material,
raw material, substance, product or by-product of any substance specified in or
regulated or otherwise affected by any Environmental Law (including but not
limited to any "hazardous substance" as defined in CERCLA or any similar state
Law), (b) any toxic chemical or other substance from or related to industrial,
commercial or institutional activities, and (c) asbestos, gasoline, diesel fuel,
motor oil, waste and used oil, heating oil and other petroleum products or
compounds, polychlorinated biphenyls, radon and urea formaldehyde.
"Environmental Law" shall mean any Law, whether now existing or
subsequently enacted or amended, relating to (a) pollution or protection of the
environment, including natural resources, (b) exposure of Persons, including but
not limited to employees, to Environmental Concern Materials, (c) protection of
the public health or welfare from the effects of products, by-products, wastes,
emissions, discharges or releases of Environmental Concern Materials or (d)
regulation of the manufacture, use or introduction into commerce of
Environmental Concern Materials including their manufacture, formulation,
packaging, labeling, distribution, transportation, handling, storage or
disposal. Without limitation, "Environmental Law" shall also include any
Environmental Approval and the terms and conditions thereof.
"Eurocurrency Reserve Requirements" shall mean for any day in which a
Fixed LIBOR Rate Loan is calculated, the aggregate (without duplication) of the
rates (expressed as a decimal fraction) of reserve requirements for the Agent in
effect on such day (including, without limitation, basic, supplemental, marginal
and emergency reserves under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto) dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board) required to be
maintained by a member bank of the Federal Reserve System. Fixed LIBOR Rate
Loans shall be deemed to constitute Eurocurrency Liabilities and to be subject
to such reserve requirements without benefit of or credit for proration,
exceptions or offsets which may be available from time to time to any lender
under Regulation D.
"Excess Collected Balance" shall have the meaning ascribed to it in the
Sweep Agreement.
"Event of Default" shall mean any of the Events of Default described in
SECTION 7.01 hereof.
"Existing Indebtedness" shall mean the Indebtedness of any Loan Party
identified on SCHEDULE 1.01.
"Fixed Charge Coverage Ratio" shall mean, with respect to the Borrower,
the ratio of (i) EBITDA less taxes paid, to (ii) current maturities of long term
debt plus interest expense plus capital expenditures unfunded by term debt or
capital leases, provided, however, that when current maturities of long term
debt are determined for fiscal quarters ending prior to the Closing Date, the
amount of the current portion of Term Loan A as of the date as of which the
Fixed Charge Coverage Ratio is being determined shall be deemed to be the
"current maturities of long term debt."
4
<PAGE> 9
"Fixed LIBOR Rate" shall mean with respect to each Funding Period
pertaining to a Fixed LIBOR Rate Loan, a rate per annum determined for such
Funding Period in accordance with the following formula rounded upward to the
nearest 1/100 of 1%:
LIBOR Base Rate
---------------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Fixed LIBOR Rate Funding Period" shall have the meaning set forth in
SECTION 2.10(a) hereof.
"Fixed LIBOR Rate Loan" shall mean any Loan as to which the Borrower
has selected the Fixed LIBOR Rate Option.
"Fixed LIBOR Rate Option" shall have the meanings set forth in SECTIONS
2.04(a)(ii), 2.06(a)(ii), and 2.08(ii) respectively hereof.
"Floating Rate" shall have the meanings set forth in SECTIONS
2.04(a)(i), 2.06(i) and 2.08(i) respectively hereof.
"Floating Rate Loan" shall mean any loan bearing interest at such time
in accordance with SECTIONS 2.04, 2.06 and 2.08 respectively hereof.
"Floating Rate Option" shall mean the Floating Rate.
"Funded Debt" shall mean, at a particular date, the Indebtedness of the
Borrower , whether secured or unsecured, having a final maturity (or which by
the terms thereof is renewable or extendable at the option of the obligor for a
period ending) more than one (1) year after the date of creation thereof.
"Funding Breakage Indemnity" shall have the meaning set forth in
SECTION 2.17(b) hereof.
"Funding Periods" shall have the meanings set forth in SECTION 2.10
hereof.
"GAAP" shall have the meaning set forth in SECTION 1.04 hereof.
"Governmental Action" shall have the meaning set forth in SECTION 3.04
hereof.
"Governmental Authority" shall mean any government or political
subdivision or any agency, authority, bureau, central bank, commission,
department or instrumentality of either, or any court, tribunal, grand jury or
arbitrator, in each case whether foreign or domestic.
"Guarantor" shall mean each Subsidiary of the Borrower except those
foreign Subsidiaries reflected as excluded in SCHEDULE 3.01 hereof and including
those entities required to become Guarantors pursuant to SECTION 5.13 hereof.
"Guarantor Security Agreement" shall mean the general security
agreement in the form attached hereto as Exhibit M and executed by each
Guarantor respectively.
5
<PAGE> 10
"Guaranty" or "Guaranties" shall mean a guarantee agreement, in the
form attached hereto as EXHIBIT F, and executed by a Guarantor, as the same may
be amended, supplemented or otherwise modified from time to time.
"Indebtedness" shall mean, at a particular date, the liabilities and
obligations of the Borrower, as determined in accordance with GAAP, including,
without limitation, all (i) obligations for borrowed money, (ii) obligations of
another Person secured by any lien upon property of the Borrower, (iii)
guarantees of Indebtedness (other than checks endorsed in the ordinary course of
business), and (iv) standby letters of credit.
"Indemnified Parties" shall mean the Agent, the Lenders, their
Affiliates, and the directors, officers, employees, attorneys and agents of each
of the foregoing.
"Law" shall mean any law (including common law), constitution, statute,
treaty, convention, regulation, rule, ordinance, order, injunction, writ, decree
or award of any Governmental Authority.
"Lead Account" shall have the meaning ascribed to it in the Sweep
Agreement.
"Lender" shall mean any of the Lenders listed on the signature pages
hereof, subject to the provisions of SECTION 9.14 hereof pertaining to Persons
becoming or ceasing to be Lenders.
"Letter of Credit" shall mean any standby letter of credit which shall
be issued by Agent for the benefit of Borrower, including amendments thereto, if
any, and shall have an expiration date no later than the earlier of (a) one (1)
year after its date or issuance of (b) thirty (30) days prior to the Revolving
Credit Maturity Date.
"LIBOR Base Rate" shall mean with respect to each Funding Period
pertaining to a Fixed LIBOR Rate Loan the rate per annum equal to the rate of
interest at which U.S. Dollar deposits with maturities comparable to such period
appear on Telerate Page 3750 at 11:00 a.m., London time, two (2) Business Days
prior to the commencement of such Fixed LIBOR Rate Funding Period; PROVIDED,
HOWEVER, that if such rate does not appear on Telerate Page 3750, the Fixed
LIBOR Rate shall mean a rate per annum equal to the rate of interest at which
U.S. Dollar deposits in an amount approximately equal to the LIBOR Base Rate
Loan are offered in immediately available funds in the London interbank market
to the London office of the Agent (or a correspondent bank) by leading banks in
the Fixed LIBOR Rate market at 11:00 a.m., London time, two (2) Business Days
prior to the commencement of such Fixed LIBOR Rate Funding Period. The term
"Telerate Page 3750" means the display designated as "Page 3750" on the
Associated Press-Dow Jones Telerate Service (or such other page as may replace
page 3750 on the Associated Press-Dow Jones Telerate Service or such other
service as may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers' Association
interest settlement rates for U.S. Dollar deposits). Any LIBOR Base Rate
determined on the basis of the rate displayed on Telerate Page 3750 in
accordance with the foregoing provisions shall be subject to corrections, if
any, made in such rate and displayed by the Associated Press-Dow Jones Telerate
Service within one (1) hour of the time when such rate is first displayed by
such service.
6
<PAGE> 11
"Lien" shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including but not limited to any conditional sale or title retention
arrangement, and any assignment, deposit arrangement or lease intended as, or
having the effect of, security.
"Loan" shall mean any loan by any Lender to the Borrower under this
Agreement (including, without limitation, any Swing Line Advance), and "Loans"
shall mean all Loans made by the Lenders under this Agreement.
"Loan Documents" shall mean this Agreement, the Notes, the Guaranties,
the Security Documents and the other agreements and instruments extending,
renewing, refinancing or refunding any indebtedness, obligation or liability
arising under any of the foregoing, in each case as the same may be amended,
modified or supplemented from time to time hereafter.
"Loan Party" shall mean the Borrower and each Guarantor.
"London Business Day" shall mean a day for dealing in deposits in
Dollars by and among banks in the London interbank market and which is a
Business Day.
"Material Adverse Effect" shall mean: (a) a material adverse effect on
the business, operations or condition (financial or otherwise) or prospects of
the Borrower and its Subsidiaries taken as a whole or (b) a material adverse
effect on the ability of the Borrower or any Guarantor to perform or comply with
any of the terms and conditions of any Loan Document.
"Multiemployer Plan" shall mean with respect to Borrower any employee
pension benefit plan which is a "multiemployer plan" within the meaning of
Section 4001(a)(3) of ERISA and to which Borrower or any Controlled Group Member
has or had an obligation to contribute.
"Net Worth" shall mean the net worth of the Borrower as determined on a
consolidated basis as defined by GAAP.
"Note" or "Notes" shall mean the Revolving Credit Note(s), the Term
Loan A Note(s) and the Term Loan B Note(s) of the Borrower executed and
delivered under this Agreement, together with all extensions, renewals,
refinancing or refundings of any thereof in whole or part.
"Notice of Swing Line Borrowing" shall have the meaning specified in
SECTION 2.03(d)(i).
"Obligations" shall mean with respect to Borrower all indebtedness,
obligations and liabilities of Borrower to any Lender or the Agent from time to
time arising under or in connection with or related to or evidenced by this
Agreement or any other Loan Document, and all extensions, renewals or
refinancings thereof, whether such indebtedness, obligations or liabilities are
direct or indirect, otherwise secured or unsecured, joint or several, absolute
or contingent, due or to become due, whether for payment or performance, now
existing or hereafter arising. Without limitation of the foregoing, such
indebtedness, obligations and liabilities include the principal amount of Loans,
interest, fees, indemnities or expenses under or in connection with this
Agreement or any other Loan Document, and all extensions, renewals and
refinancings thereof, whether or not such Loans were made in excess of the
obligation of any Lender to lend. Obligations shall remain Obligations
notwithstanding any assignment or transfer by Borrower or any subsequent
assignment or transfer by Borrower of any of the Obligations or
7
<PAGE> 12
any interest therein, unless accompanied by a written release of Borrower from
and executed by the Lenders.
"Office," when used in connection with the Agent, shall mean its office
located at 1200 Bausch & Lomb Place, Rochester, New York 14604, or at such other
office or offices of the Agent or any branch, subsidiary or affiliate thereof as
may be designated in writing from time to time by the Agent to the Borrower
pursuant hereto.
"Option" shall mean the Fixed LIBOR Rate Option or the Floating Rate
Option, as the case may be.
"PBGC" means the Pension Benefit Guaranty Corporation established
under Title IV of ERISA or any other governmental agency, department or
instrumentality succeeding to the functions of said corporation.
"Pension-Related Event" shall mean with respect to Borrower any of the
following events or conditions:
(a) Any action is taken by any Person (i) to terminate, or which would
result in the termination of, a Plan, either pursuant to its terms or by
operation of law (including, without limitation, any amendment of a Plan which
would result in a termination under Section 4041(c) or Section 4041(e) of ERISA,
or (ii) to have a trustee appointed for a Plan pursuant to Section 4042 of
ERISA;
(b) PBGC notifies Borrower or any Controlled Group Member of its
determination that an event described in Section 4042 of ERISA has occurred with
respect to a Plan, that a Plan should be terminated, or that a trustee should be
appointed for a Plan;
(c) Any Reportable Event occurs with respect to a Plan;
(d) Any action occurs or is taken which would result in Borrower
becoming subject to liability for a complete or partial withdrawal by any Person
from a Multiemployer Plan (including, without limitation, seller liability
incurred under Section 4204(a)(2) of ERISA), or Borrower or any Controlled Group
Member receives from any Person a notice or demand for payment on account of any
such alleged or asserted liability; or
(e) (i) There occurs any failure to meet the minimum funding standard
under Section 302 of ERISA or Section 412 of the Code with respect to a Plan, or
any tax return is filed showing any tax payable under Section 4971(a) of the
Code with respect to any such failure, or Borrower or any Controlled Group
Member receives a notice of deficiency from the Internal Revenue Service with
respect to any alleged or asserted such failure, or (ii) any request is made by
Borrower or any Controlled Group Member for a variance from the minimum funding
standard, or an extension of the period for amortizing unfunded liabilities,
with respect to a Plan.
"Permitted Lease Payments" shall mean $1,500,000 for the fiscal year
ending March 31, 1999 and shall increase by $150,000 for each subsequent fiscal
year.
"Permitted Liens" shall have the meaning set forth in SECTION 6.02
hereof.
8
<PAGE> 13
"Person" shall mean an individual, corporation, partnership, limited
liability company, trust, unincorporated association, joint venture, joint-stock
company, Governmental Authority or any other entity.
"Plan" means with respect to Borrower any employee pension benefit plan
within the meaning of Section 3(2) of ERISA (other than a Multiemployer Plan)
covered by Title IV of ERISA by reason of Section 4021 of ERISA, of which
Borrower or any Controlled Group Member is or has been within the preceding five
(5) years a "contributing sponsor" within the meaning of Section 4001(a)(13) of
ERISA, or which is or has been within the preceding five (5) years maintained
for employees of Borrower or any Controlled Group Member.
"Pledge Agreement" shall mean the stock pledge agreement of the
Borrower in the form attached hereto as EXHIBIT E and executed by the Borrower.
"Potential Default" shall mean any event or condition which with
notice, passage of time or a determination by any Lender, or any combination of
the foregoing, would constitute an Event of Default.
"Prime Rate" shall mean the interest rate per annum determined from
time to time by the Agent as its prime rate whether or not the same is
announced. The Prime Rate may be greater or less than other interest rates
charged by the Agent to other borrowers and is not solely based or dependent
upon the interest rate which the Agent may charge any particular borrower or
class of borrowers.
"Pro Rata" shall mean from or to each Lender in proportion to its
Commitment Percentage except that if such Lender is in default of its obligation
to make Loans hereunder, then Pro Rata shall mean from or to each Lender in
proportion to its Loans outstanding to all Loans outstanding.
"Purchase Price Receipt Notice" shall mean the notice required pursuant
to the Transfer Supplement.
9
<PAGE> 14
"Purchasing Lender" shall have the meaning set forth in SECTION 9.14(c)
hereof.
"Register" shall have the meaning set forth in SECTION 9.14(d) hereof.
"Regular Payment Date" shall mean the first day of each calendar month
after the date hereof, commencing September 1, 1998.
"Related Litigation" shall have the meaning set forth in SECTION
9.15(b).
"Reportable Event" means (i) a reportable event described in Section
4043 of ERISA and regulations thereunder, (ii) a withdrawal by a substantial
employer from a Plan to which more than one employer contributes, as referred to
in Section 4063(b) of ERISA, (iii) a cessation of operations at a facility
causing more than twenty percent (20%) of Plan participants to be separated from
employment, as referred to in Section 4068(f) of ERISA, or (iv) a failure to
make a required installment or other payment with respect to a Plan when due in
accordance with Section 412 of the Code or Section 302 of ERISA which causes the
total unpaid balance of missed installments and payments (including unpaid
interest) to exceed $750,000.
"Required Lenders" shall mean, as of any date, (i) at any such time
there are two or fewer Lenders, all Lenders (excluding any Lender in default of
its obligations to make Loans hereunder), and (ii) at any such time there are
greater than two Lenders, Lenders that have made Loans constituting at least 65%
in principal amount of Loans outstanding on such date or, if no Loans are
outstanding on such date, Lenders that have Commitments constituting, in the
aggregate, at least 65% of the total Commitments of all the Lenders.
"Responsible Officer" with respect to Borrower shall mean any of the
chairman of the board of directors, the president, the chief executive officer,
the chief financial officer, the vice president, or the corporate comptroller
thereof.
"Restricted Payments" shall mean with respect to Borrower any
investment, loan or advance, and shall include any dividends paid on capital
stock of Borrower, or amounts used to acquire any capital stock of Borrower.
"Revolving Credit Commitment" shall have the meaning set forth in
SECTION 2.01(a) hereof.
"Revolving Credit Committed Amount" shall have the meaning set forth in
SECTION 2.01(a) hereof.
"Revolving Credit Loans" shall have the meaning set forth in SECTION
2.01(a) hereof.
"Revolving Credit Maturity Date" shall mean July 1, 2001.
"Revolving Credit Note(s)" shall mean the promissory note(s) of the
Borrower executed and delivered under SECTION 2.01(c) hereof, any promissory
note(s) issued in substitution therefor, together with all extensions, renewals,
refinancings or refundings thereof in whole or part.
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"Security Agreement" shall mean, the general security agreement of the
Borrower, in the form attached hereto as EXHIBIT B and executed by the Borrower.
"Security Documents" shall mean, collectively, the Security Agreement,
the Pledge Agreement (together with all related stock powers executed in blank
and accompanied by the original pledged stock certificates), the Guarantor
Security Agreement and any UCC-1 Financing Statements required thereby.
"Standard Notice" shall mean an irrevocable notice in the form attached
hereto as EXHIBIT H provided to the Agent on a Business Day which is: (a) the
same Business Day in the case of conversion to or renewal of the Floating Rate;
(b) the same Business Day in the case of prepayment of any Floating Rate Loan;
and (c) the same business day in the case of selection of the Fixed LIBOR Rate
Option. Standard Notice must be provided no later than 10:00 a.m., New York
time.
"Stock Payment" by any Person shall mean any dividend, distribution or
payment of any nature (whether in cash, securities, or other property) on
account of or in respect of any shares of the capital stock (or warrants,
options or rights therefor) of such Person, including but not limited to any
payment on account of the purchase, redemption, retirement, defeasance or
acquisition of any shares of the capital stock (or warrants, options or rights
therefor) of such Person, in each case regardless of whether required by the
terms of such capital stock (or warrants, options or rights) or any other
agreement or instrument.
"Subordinated Debt" shall mean Indebtedness of the Borrower or any
Guarantor repayment of which is subordinated to the repayment of the Obligations
pursuant to a Subordination Agreement substantially in the form attached hereto
as EXHIBIT K or as otherwise agreed to in writing by the Required Lenders.
"Subsidiary" shall mean, for any Person, (i) a corporation a majority
of whose voting stock is at the time, directly or indirectly, owned by such
person, by one or more subsidiaries of such Person or by such Person and one or
more subsidiaries of such Person, (ii) a partnership in which such Person or a
subsidiary of such Person is, at the date of determination, a general or limited
partner of such partnership, but only if such person or its subsidiary is
entitled to receive more than 50% of the assets of such partnership upon its
dissolution, or (iii) any other Person (other than a corporation or partnership)
in which such Person, a subsidiary of such Person or such Person and one or more
subsidiaries of such Person, directly or indirectly, at the date of
determination thereof, has (A) at least a majority ownership interest or (B) the
power to elect or direct the election of a majority of the directors or other
governing body of such Person.
"Sweep Account" shall have the meaning set forth in SECTION 2.03(d)(i).
"Sweep Agreement" shall mean a cash management services Automated
Credit Sweep Agreement, in the form attached hereto as Exhibit L, by and between
the Borrower and the Swing Line Bank as the same may be amended, supplemented or
otherwise modified from time to time.
"Swing Line Advance" means an advance made by (a) the Swing Line Bank
pursuant to Section 2.01(b)or (b) any Lender pursuant to Section 2.03(b)(iv).
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"Swing Line Bank" means KeyBank.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in SECTION 2.01(b).
"Taxes" shall have the meaning set forth in SECTION 2.18 hereof.
"Term Loan A" shall have the meaning set forth in SECTION 2.05(a)
hereof.
"Term Loan A Commitment" shall have the meaning set forth in SECTION
2.05(a) hereof.
"Term Loan A Committed Amount" shall have the meaning set forth in
SECTION 2.05(a) hereof.
"Term Loan A Maturity Date" shall mean January 1, 2003.
"Term Loan A Note(s)" shall mean the promissory note(s) of the Borrower
executed and delivered under SECTION 2.06(a) hereof, any promissory note issued
in substitution therefor, together with all extensions, renewals, refinancings
or refundings thereof in whole or in part.
"Term Loan B" shall have the meaning set forth in SECTION 2.08(a)
hereof.
"Term Loan B Commitment" shall have the meaning set forth in SECTION
2.08(a) hereof.
"Term Loan B Committed Amount" shall have the meanings set forth in
SECTION 2.08(a) hereof.
"Term Loan B Maturity Date" shall mean June 1, 2007.
"Term Loan B Note(s)" shall mean the promissory note(s) of the Borrower
executed and delivered under SECTION 2.08(c) hereof, and any promissory note(s)
issued in substitution therefor, together with all extensions, renewals,
refinancings or refundings thereof in whole or in part.
"Transfer Effective Date" shall have the meaning set forth in the
applicable Transfer Supplement.
"Transfer Supplement" shall have the meaning set forth in SECTION 9.14
(c).
1.02. CONSTRUCTION.
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Unless the context of this Agreement otherwise clearly requires,
references to the plural include the singular, the singular the plural and the
part the whole; "or" has the inclusive meaning represented by the phrase
"and/or"; and "property" includes all properties and assets of any kind or
nature, tangible or intangible, real, personal or mixed. References in this
Agreement to "determination" (and similar terms) by any Lender or the Agent
include good faith calculations by such Lender or the Agent (in the case of
quantitative determinations) and good
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<PAGE> 17
faith beliefs by such Lender or the Agent (in the case of qualitative
determinations) and, in either case, after applying reasonable commercial
standards for making such determination. The words "hereof," "herein,"
"hereunder" and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. References herein
to "out-of-pocket expenses" of a Person (and similar terms) include, but are not
limited to, the reasonable fees of in-house counsel and other in-house
professionals of such Person to the extent that such fees are routinely
identified and specifically charged under such Persons normal cost accounting
system. The section and other headings contained in this Agreement and the Table
of Contents preceding this Agreement are for reference purposes only and shall
not control or affect the construction of this Agreement or the interpretation
thereof in any respect. Section, subsection and exhibit references are to this
Agreement unless otherwise specified.
1.03. PROVISIONS RELATING TO THIS AGREEMENT.
- --------------------------------------------
This Agreement contains provisions relating to three (3) separate
credit or loan facilities, all as more fully described herein: a revolving
credit facility and two (2) term loan facilities. The terms, covenants,
conditions, representations, warranties, indemnifications and agreements set
forth in this Agreement are and shall be deemed to be made by or with respect to
the Borrower under each credit and loan facility and in connection with or with
respect to each such facility as if the same were set forth in separate
agreements for the respective credit and loan facilities. Any Event of Default
hereunder by the Borrower is and shall be deemed to be an Event of Default by
the Borrower under all such credit and loan facilities, entitling the Agent or
the Lenders to exercise their respective rights and remedies as hereafter set
forth against or with respect to all such facilities, the Borrower and any
Guarantors, including, without limitation, resort to any or all rights, remedies
and security under any other Loan Documents.
1.04. ACCOUNTING PRINCIPLES.
- ----------------------------
(a) As used herein, "GAAP" shall mean generally accepted accounting
principles in the United States, applied on a basis consistent with the
principles used in preparing Borrower's financial statements as of March 31,
1998.
(b) Except as otherwise provided in this Agreement, all computations
and determinations as to accounting or financial matters; shall be made, and all
financial statements to be delivered pursuant to this Agreement shall be
prepared, in accordance with GAAP, and all accounting or financial terms shall
have the meanings ascribed to such terms by GAAP.
(c) If there shall be any change in accounting principles under GAAP
and such change results in a change in the calculation of the financial
covenants, standards or terms used in this Agreement or any other Loan Document,
then the Borrower, the Agent and the Lenders agree to enter into negotiations in
order to amend such provisions of this Agreement, so as to equitably reflect
such changes in accounting principles, with the desired result that the criteria
for evaluating Borrower's and its consolidated Subsidiaries' financial condition
shall be the same after such changes in accounting principles as if such changes
had not been made; PROVIDED, HOWEVER, that the agreement of Required Lenders to
any required amendments of such provisions shall be sufficient to bind all
Lenders.
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ARTICLE II: THE CREDITS
-----------------------
A. REVOLVING CREDIT FACILITY
- ----------------------------
2.01. REVOLVING CREDIT LOANS.
- -----------------------------
(a) REVOLVING CREDIT COMMITMENTS.
(i) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees (such
agreement being herein called such Lender's "Revolving Credit Commitment") to
make loans (the "Revolving Credit Loans") to the Borrower at any time or from
time to time on or after the date hereof and to but not including the Revolving
Credit Maturity Date. A Lender shall have no obligation to make any Revolving
Credit Loan to the extent that the aggregate principal amount of the Revolving
Credit Loans of such Lender at any time outstanding plus such Lender's Pro Rata
share of the aggregate undrawn face amount of all issued and outstanding
(including, without limitation, any outstanding Swing Line Advances hereunder)
Letters of Credit (as hereinafter set forth) would exceed such Lender's
Revolving Credit Committed Amount at such time, except as set forth in the
following paragraph (ii). Each Lender's "Revolving Credit Committed Amount" at
any time shall be equal to the amount set forth as its Revolving Credit
Committed Amount below such Lender's name on the signature pages hereof, as such
amount may have been reduced under SECTION 2.02 hereof at such time, and subject
to transfer to another Lender as provided in SECTION 9.14 hereof.
(ii) In the event any Lender becomes a Defaulting Lender as defined
in Section 2.15 hereof, the Agent agrees that it shall nonetheless be obligated
to make any Revolving Credit Loan to the extent the Defaulting Lender has not
advanced its pro rata share to the Agent.
(iii) Notwithstanding anything to the contrary in the foregoing
paragraphs (i) and (ii), at no time during the term of this Agreement shall the
aggregate amount of the Lenders' Revolving Credit Commitment, or the aggregate
of outstanding Revolving Credit Loans (including, without limitation, any
outstanding Swing Line Advances hereunder) plus the aggregate undrawn face
amount of all issued and outstanding Letters of Credit (as hereinafter set
forth), exceed $15,000,000.
(iv) Subject to the terms and conditions of this Agreement, during
the term of this Agreement, Agent, in its own name, but only as agent for the
Lenders, shall issue such Letters of Credit for the account of Borrower, as
Borrower may from time to time request. Borrower shall not request any Letter of
Credit (and Agent shall not be obligated to issue any Letter of Credit) if,
after giving effect thereto, the sum of (A) the aggregate outstanding principal
amount of all Revolving Credit Loans, plus (B) the aggregate undrawn face amount
of all issued and outstanding Letters of Credit, would exceed the aggregate
amount of the Lenders' Revolving Credit Commitments. Nor shall the Borrower
request any Letter of Credit (and nor shall Agent be obligated to issue any
Letter of Credit), if, after giving effect thereto, the sum of the aggregate
undrawn face amount of all issued and outstanding Letters of Credit would exceed
$1,000,000 at any time. The issuance of each Letter of Credit shall confer upon
each Lender the benefits and liabilities of a participation consisting of an
undivided pro rata interest in the Letter of Credit to the extent of that
Lender's Commitment Percentage.
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<PAGE> 19
Each request for a Letter of Credit shall be delivered to Agent
not later than 11:00 A.M. (New York time) three (3) Business Days prior to the
day upon which the Letter of Credit is to be issued. Each such request shall be
in a form acceptable to Agent and specify the face amount thereof, the account
party, the beneficiary, the intended date of issuance, the expiration date
thereof, and the nature of the transaction to be supported thereby. Concurrently
with each such request, Borrowers shall execute and deliver to Agent an
appropriate application and agreement, being in the standard form of Agent for
such Letters of Credit, as amended to conform to the provisions of this
Agreement if required by Agent. Agent shall give each Lender notice of each such
request for a Letter of Credit.
In respect of each Letter of Credit and the drafts thereunder,
if any, Borrower agrees (a) to pay to Agent, for the pro rata benefit of the
Lenders, a non-refundable commission based upon the face amount of the Letter of
Credit, which shall be paid on the date that such Letter of Credit is issued, at
the rate of one percent (1%) of the face amount of such Letter of Credit, and
(b) pay to Agent, for its sole account, such other issuance, amendment,
negotiation, draw, acceptance, telex, courier, postage and similar transactional
fees as are generally charged by Agent under its fee schedule as in effect from
time to time.
Whenever a Letter of Credit is drawn, Borrower shall
immediately reimburse Agent for the amount drawn. In the event that the amount
drawn is not reimbursed by Borrower within one (1) Business Day of the drawing
of such Letter of Credit, the amount drawn shall be deemed to be a Revolving
Credit Loan to Borrower subject to the provisions and requirements of this
Agreement (unless any such requirement shall be waived by Agent) and shall be
evidenced by the Revolving Credit Note(s). Each such Revolving Credit Loan shall
be deemed to be a Floating Rate Loan unless otherwise requested by and available
to Borrower hereunder. Each Lender is hereby authorized to record on its records
relating to its Revolving Credit Note(s) such Lender's pro rata share of the
amounts paid and not reimbursed on the Letters of Credit.
(b) THE SWING LINE ADVANCES. Subject to the terms and conditions of
this Agreement, the Swing Line Bank agrees to make, as part of (and not in
addition to) its Revolving Credit Commitment hereunder, Swing Line Advances to
the Borrower at any time and from time to time on or after the date hereof and
to but not including the Revolving Credit Maturity Date in an aggregate amount
not to exceed at any time outstanding the lesser of (i) $5,000,000, or (ii) the
Swing Line Bank's Revolving Credit Committed Amount minus the Swing Line Bank's
Pro Rata share of (x) then outstanding Revolving Credit Loans plus (y) the
aggregate undrawn face amount of all issued and outstanding Letters of Credit
(the "Swing Line Facility"). No Swing Line Advance shall be used for the purpose
of funding the payment of any other Swing Line Advance. Within the limits of the
amount of the Swing Line Facility and the limits of time set forth in this
Section 2.01, the Borrower may borrow under this SECTION 2.01, repay, or prepay
pursuant to SECTIONS 2.12 and 2.13 hereof (prepayments pursuant to SECTION 2.13
hereof being a mandatory obligation of the Borrower) and reborrow under this
SECTION 2.01.
(c) NATURE OF CREDIT. Within the limits of time and amount set forth in
this SECTION 2.01, and subject to the provisions of this Agreement, the Borrower
may borrow, repay and reborrow Revolving Credit Loans hereunder by means of the
Fixed LIBOR Rate Option or Floating Rate Option in Dollars. Borrowings at the
Fixed LIBOR Rate Option shall be subject to availability.
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(d) REVOLVING CREDIT NOTE(S). Revolving Credit Loans made by each
Lender with respect to the Revolving Credit Facility shall be evidenced by
promissory notes of the Borrower, one to each Lender, dated the date hereof (the
"Revolving Credit Note(s)") in substantially the forms attached hereto as
EXHIBIT A, with the blanks appropriately filled, payable to the order of such
Lender in a face amount equal to such Lender's Revolving Credit Committed
Amount.
(e) MATURITY. To the extent not due and payable earlier, the Revolving
Credit Loans shall be due and payable on the Revolving Credit Maturity Date.
2.02. COMMITMENT FEE; REDUCTION OF THE REVOLVING CREDIT COMMITTED AMOUNTS.
- --------------------------------------------------------------------------
(a) COMMITMENT FEE. The Borrower shall pay to the Agent for the account
of each Lender a commitment fee (the "Commitment Fee") equal to the percentage
per annum (based on a year of 360 days and actual days elapsed) calculated in
the following matrix, for each day from and including the date hereof to but not
including the Revolving Credit Maturity Date, on the average daily amount (not
less than zero) by which such Lender's Revolving Credit Committed Amount on such
day, exceeds the aggregate principal amount of Revolving Credit Loans
(including, without limitation, outstanding Swing Line Advances) outstanding
from such Lender. Such Commitment Fee shall be due and payable for the preceding
period for which such fee has not been paid: (x) on every third (3rd) Regular
Payment Date, (y) on the date of each reduction of the Revolving Credit
Committed Amounts (whether optional or mandatory) on the amount so reduced and
(z) on the Revolving Credit Maturity Date. Payments due from the Borrower
pursuant to clauses (x) and (z) of the preceding sentence shall be billed by the
Agent to the Borrower in arrears for the applicable period and the Borrower
shall pay the amount thereof in full within five (5) Business Days following
receipt of such billing notice, the Borrower's obligations hereunder surviving
the termination or expiration of this Agreement.
APPLICABLE MARGIN RATIO (measured quarterly on rolling
four (4) quarter basis) COMMITMENT FEE
Greater than or equal to 4.00 but Less than 4.50 0.25%
Greater than or equal to 3.25 but Less than 4.00 0.25%
Greater than or equal to 2.25 but Less than 3.25 0.1875%
Greater than or equal to 1.00 but Less than 2.25 0.125%
Less than 1.00 0.125%
(b) REDUCTION OF THE REVOLVING CREDIT COMMITTED AMOUNTS. The Borrower
may at any time or from time to time reduce Pro Rata the Revolving Credit
Committed Amounts of the Lenders to an aggregate amount (which may be zero) not
less than the sum of the unpaid principal amount of the Revolving Credit Loans
then outstanding plus the aggregate undrawn face amount of all issued and
outstanding (including, without limitation, outstanding Swing Line Advances)
Letters of Credit hereunder, plus the principal amount of all Revolving Credit
Loans (including, without limitation, Swing Line Advances) not yet made as to
which notice has been given by the Borrower under SECTION 2.03 hereof. Any
reduction of the Revolving Credit Committed Amount shall be in an aggregate
amount of at least $1,000,000 and in integral
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<PAGE> 21
multiples of $500,000 unless the Borrower reduces such sum to zero, in which
case the aggregate amount shall be the entire remaining Revolving Credit
Committed Amount. Reduction of the Revolving Credit Committed Amount shall be
made by the Borrower providing not less than three (3) Business Days notice
(which notice shall be irrevocable) to such effect to the Agent.
(c) The Borrower hereby irrevocably authorizes the Agent, without
further action or authorization by or notice to the Borrower to make payments of
any amounts owing under this Section by debiting and automatically transferring
any amounts from any account of Borrower now or hereafter established with Agent
and for such purpose the Borrower hereby appoints the Agent as its appointed
attorney-in-fact. Nothing contained in this paragraph (c) shall be deemed to
obligate the Agent at any time to make any such debit, transfer and/or payment
nor shall the Agent be liable to the Borrower or any other Person for any such
debit, transfer and/or payment or its failure or refusal at any time to do so.
2.03. MAKING OF LOANS.
- ----------------------
(a) Whenever the Borrower desires that the Lenders make Revolving
Credit Loans other than Swing Line Advances, the Borrower shall either (i)
provide Standard Notice to the Agent setting forth the following information or
(ii) provide the following information to the Agent by telephone on the date on
which such Standard Notice is to be given, which shall promptly thereafter be
confirmed in writing in accordance with the form of Standard Notice attached
hereto as EXHIBIT H:
(i) The date, which shall be a Business Day, on which such proposed
Loans are to be made;
(ii) The aggregate principal amount of such proposed Loans, and
which shall be an integral multiple of $500,000 and not less than $1,000,000
with respect to each Fixed LIBOR Rate Loan.
iii) The interest rate Option or Options selected in accordance
with SECTION 2.04 hereof and the principal amounts of each Floating Rate Loan
and each Fixed LIBOR Rate Loan and the Funding Period for each Fixed LIBOR Rate
Loan.
The Agent shall promptly provide to each of the Lenders a copy of such Standard
Notice or advise by telephone each Lender of such information and provide a copy
of Borrower's written confirmation promptly after receipt thereof. Unless any
applicable condition specified in ARTICLE IV hereof has not been satisfied, on
the date specified in such Standard Notice or in such telephone advice, each
Lender shall make the proceeds of its Loan available to the Agent at the Agent's
Office, no later than 2:00 P.M., New York time, in funds immediately available
at such Office. The Agent will make the funds so received available to the
Borrower in funds immediately available pursuant to written wire transfer
instructions to be provided by Borrower to the Agent together with the Standard
Notice. No more than six (6) Fixed LIBOR Rate Loans with respect to Revolving
Credit Loans shall be outstanding hereunder at any one time. Any telephone
notice given pursuant to this SECTION 2.03 shall be deemed to include all
certifications,
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<PAGE> 22
representations and warranties of and by Borrower as set forth in the form of
Standard Notice attached hereto as EXHIBIT F.
(b)(i) Each Swing Line Advance, within the limits of the Swing Line
Facility, shall be made either
(A) Automatically ( an "Automatic Swing Line Advance") by the
Swing Line Bank to the Agent in the event there exists at
any time a Deficit Collected Balance in the account (the
"Sweep Account") maintained by the Borrower with the
Swing Line Bank under and pursuant to the Sweep
Agreement, if any. (Such Automatic Swing Line Advance is
hereby irrevocably authorized by the Borrower but it is
understood and agreed that the Swing Line Bank shall not
be obligated to make or permit to be made any Automatic
Swing Line Advance if any applicable condition specified
in ARTICLE IV hereof is or has not been satisfied as of
the date of such Swing Line Advance and it is further
understood and agreed that, in the event any such
condition is not so satisfied, the making of any
Automatic Swing Line Advance thereafter shall not
constitute or be deemed to constitute a waiver of any
such condition except as expressly acknowledged and
agreed to in writing by the Swing Line Bank), or
(B) On notice to the Swing Line Bank and the Agent by the
Borrower, given not later than 10:00 A.M. (Rochester, New
York time) on the date of the proposed Swing Line Advance
(a `Notice of Swing Line Borrowing"). Each such Notice of
Swing Line Borrowing shall be by telephone, confirmed
immediately in writing, or telex or telecopier,
specifying therein the requested amount of such Swing
Line Advance. Any telephone Notice, and all written
confirmations thereof, and all written Notices shall be
deemed to include all certifications, representations and
warranties of and by the Borrower as set forth in the
form of Standard Notice attached hereto as EXHIBIT F as
if the same were made or set forth in full therein and
the Swing Line Bank shall have the right to rely upon the
same in making any Swing Line Advance.
(ii) Unless any applicable condition specified in ARTICLE IV hereof has
not been satisfied on the date of the Swing Line Bank's receipt of the Notice of
Swing Line Borrowing, the Swing Line Bank will make the amount of such Swing
Line Advance available to the Agent at the Agent's Office, no later than 2:00
p.m. (Rochester, New York time) of the same Business Day, in funds immediately
available at such Office and the Agent shall promptly make such funds available
to the Borrower by crediting the Sweep Account.
(iii) Notwithstanding anything to the contrary in this Agreement, each
Swing Line Advance shall bear interest only at the Floating Rate Option in
accordance with SECTION 2.04(a)(i) hereof.
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(iv) (A) Upon written demand by the Swing Line Bank, with a copy
thereof to the Agent, each other Lender shall purchase from the Swing Line Bank,
and the Swing Line Bank shall sell and assign to each such other Lender, as part
of (and not in addition to) such other Lender's Revolving Credit Commitment
hereunder, such other Lender's Pro Rata share of the aggregate amount of such
outstanding Swing Line Advances as of the date of such demand and as set forth
in such written demand by the Swing Line Bank. The Borrower hereby agrees to
each and every such purchase, sale and assignment. Each such purchase from the
Swing Line Bank hereunder shall constitute a Swing Line Advance by such other
Lender under this Agreement and the outstanding principal amount of the Swing
Line Advances made by the Swing Line Bank shall be reduced by such amount on
such Business Day. Notwithstanding the foregoing, no such other Lender shall be
obligated to make any such purchase of its Pro Rata share of any Swing Line
Advances to the extent that the aggregate amount of the Revolving Credit Loans
of such other Lender at any time outstanding (including, without limitation, any
other outstanding Swing Line Advances hereunder) plus such other Lender's Pro
Rata share of the aggregate undrawn face amount of all issued and outstanding
Letters of Credit would exceed such other Lender's Revolving Credit Committed
Amount at such time.
(B) Each other Lender agrees to so purchase its Pro Rata share of
such outstanding Swing Line Advances on (1) the Business Day on which demand
therefor is made by the Swing Line Bank, provided that notice of such demand is
given not later than 11:00 a.m.(Rochester, New York time) on such Business Day,
or (2) the first Business Day next succeeding such demand if notice of such
demand is given after such time. Each such other Lender shall purchase such Pro
Rata by making available to the Agent for the account of the Swing Line Bank, by
deposit to the Agent's account, in funds immediately available to the Agent, an
amount equal to such Pro Rata share of the aggregate outstanding Swing Line
Advances to be purchased by such Lender.
(C) Upon any such purchase, sale and assignment by the Swing Line
Bank hereunder, the Swing Line Bank represents and warrants to such other Lender
that the Swing Line Bank is the legal and beneficial owner of such interest in
and to the Swing Line Advances being assigned to it, but the Swing Line Bank
makes no other representation or warranty (express or implied) of any kind or
character and assumes no liability or responsibility whatsoever with respect to
any such Swing Line Advances, the Loan Documents or any Loan Party.
2.04. INTEREST RATES.
- ---------------------
(a) OPTIONAL BASES OF BORROWING. The unpaid principal amount of the
Revolving Credit Loans shall bear interest for each day until due on one or more
bases selected by the Borrower from among the interest rate options set forth
below. Subject to the provisions and limitations of this Agreement, the Borrower
may select different Options to apply simultaneously to different Revolving
Credit Loans and may select different Funding Periods to apply simultaneously to
different parts of each Fixed LIBOR Rate Loan.
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(i) FLOATING RATE OPTION. A rate per annum (computed on a basis of
a year of 360 days and actual days elapsed) for each day equal to the Prime Rate
plus or minus, as the case may be, the amount of basis points hereinafter set
forth next to the Applicable Margin Ratio in effect as of the date the Floating
Rate Option is selected by the Borrower or otherwise goes or remains in effect
pursuant to this Agreement.
APPLICABLE MARGIN RATIO (measured as of the
date the Floating Rate Option selected by
Borrower goes into effect or otherwise goes
or remains in effect pursuant to PLUS OR MINUS, AS INDICATED,
this Agreement) THE FOLLOWING BASIS POINTS:
Greater than or equal to 4.00 but Less than 4.50 25
Greater than or equal to 3.25 but Less than 4.00 0
Greater than or equal to 2.25 but Less than 3.25 -25
Greater than or equal to 1.00 but Less than 2.25 -37.50
Less than 1.00 -50
(ii) FIXED LIBOR RATE OPTION. A rate per annum (based on a
year of 360 days and actual days elapsed) for each day during the applicable
Funding Period equal to the Fixed LIBOR Rate for such Funding Period plus the
amount of basis points hereinafter set forth next to the Applicable Margin Ratio
in effect as of the date the Fixed LIBOR Rate Option is selected by the Borrower
(subject to the provisions of SECTION 2.09 hereinafter set forth):
APPLICABLE MARGIN RATIO (measured as of the
date the Fixed LIBOR Rate Option selected by
Borrower goes into effect) ADDITIONAL BASIS POINTS:
Greater than or equal to 4.00 but Less than 4.50 215
Greater than or equal to 3.25 but Less than 4.00 160
Greater than or equal to 2.25 but Less than 3.25 127.50
Greater than or equal to 1.00 but Less than 2.25 102.50
Less than 1.00 77.50
The Agent shall give prompt notice to the Borrower and each
Lender (in any event within ten (10) Business Days of its receipt of the
quarterly financial statements or annual reports described in SECTION 5.01
hereof) of (i) the Floating Rate determined or adjusted in accordance with the
definition of the Floating Rate, (ii) the Fixed LIBOR Rate determined or
adjusted in accordance with the definition of the Fixed LIBOR Rate, and (iii)
the Applicable Margin Ratio (and corresponding Basis Points added or subtracted)
determined in accordance with the definition of the Applicable Margin Ratio
based upon the information set forth in the most recent quarterly financial
statements or annual reports described in SECTION 5.01 hereof, which
determinations or adjustments shall be conclusive absent manifest error, each
such determination or adjustment to be effective as of the first Business Day
following the most recently concluded fiscal quarter.
B. TERM LOAN FACILITIES
- -----------------------
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<PAGE> 25
2.05. TERM LOAN A.
- ------------------
(a) TERM LOAN A COMMITMENT.
(i) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees (such
agreement being herein called such Lender's "Term Loan A Commitment") to make a
loan ("Term Loan A") to the Borrower on the date hereof. Notwithstanding the
obligations of the Agent, a Lender shall have no obligation to make Term Loan A
to the extent that (x) the principal amount of the Term Loan A of such Lender
would exceed such Lender's Term Loan A Committed Amount. Each Lender's "Term
Loan A Committed Amount" shall be equal to the amount set forth as its Term Loan
A Committed Amount below such Lender's name on the signature pages hereof.
(ii) Notwithstanding anything to the contrary in the foregoing
paragraph (i), at no time during the term of this Agreement shall the aggregate
amount of the Lenders' Term Loan A Commitment, or the aggregate outstanding
principal balance of Term Loan A, exceed $9,000,000.
(b) NATURE OF CREDIT. Within the limits of time and amount set forth in
this Section 2.05, and subject to the provisions of this Agreement, the Borrower
may borrow and repay (but not reborrow) Term Loan A at the Fixed LIBOR Rate
Option or Floating Rate Option in Dollars.
(c) TERM LOAN A NOTE(S). The Term Loan A made by each Lender shall be
evidenced by Term Loan A Note(s) of the Borrower (one to each Lender), dated the
date hereof (the "Term Loan A Note(s)") in substantially the forms attached
hereto as EXHIBIT C, with the blanks appropriately filled, payable to the order
of such Lender in the principal amount equal to such Lender's Term Loan A
Committed Amount.
(d) PAYMENT TERMS. The Borrower shall make on every third (3rd) Regular
Payment Date payments of principal to the Lenders with respect to the Term Loan
A in the aggregate amount of $500,000 until the Term Loan A Maturity Date, at
which time the entire outstanding principal balance, all accrued interest and
all other sums due from the Borrower shall be fully due and payable. The
Borrower hereby irrevocably authorizes the Agent, without further action or
authorization by or notice to the Borrower, to make payments of any amounts
owing under this Section by debiting and automatically transferring any amounts
from any account of Borrower now or hereafter established with Agent and for
such purpose, the Borrower hereby appoints the Agent as its agent and
attorney-in-fact. Nothing contained herein shall be deemed to obligate the Agent
at any time to make any such debit, transfer and/or payment nor shall the Agent
be liable to the Borrower or any other Person for any such debit, transfer or
payment or its failure or refusal at any time to do so.
2.06. INTEREST RATES.
- ---------------------
The unpaid principal amount of the Term Loan A shall bear interest for
each day until due on the basis selected by the Borrower from between the
interest rate options set forth below.
(i) FLOATING RATE OPTION. A rate per annum (computed on a basis of
a year of 360 days and actual days elapsed) for each day equal to the Prime Rate
plus or minus, as the case
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<PAGE> 26
may be, the amount of basis points hereinafter set forth next to the Applicable
Margin Ratio in effect as of the date the Floating Rate Option is selected by
the Borrower or otherwise goes or remains in effect pursuant to this Agreement.
APPLICABLE MARGIN RATIO (measured as of the
date the Floating Rate Option selected by
Borrower goes into effect or otherwise goes
or remains in effect pursuant to this Agreement) PLUS OR MINUS, AS INDICATED,
THE FOLLOWING BASIS POINTS:
Greater than or equal to 4.00 but Less than 4.50 25
Greater than or equal to 3.25 but Less than 4.00 0
Greater than or equal to 2.25 but Less than 3.25 -25
Greater than or equal to 1.00 but Less than 2.25 -37.50
Less than 1.00 -50
(ii) FIXED LIBOR RATE OPTION. A rate per annum (based on a year of
360 days and actual days elapsed) for each day during the applicable Funding
Period equal to the Fixed LIBOR Rate for such Funding Period plus the amount of
basis points hereinafter set forth next to the Applicable Margin Ratio in effect
as of the date the Fixed LIBOR Rate Option is selected by the Borrower (subject
to the provisions of SECTION 2.09 hereinafter set forth):
APPLICABLE MARGIN RATIO (measured as of the
date the Fixed LIBOR Rate Option selected
by Borrower goes into effect) ADDITIONAL BASIS POINTS:
Greater than or equal to 4.00 but Less than 4.50 215
Greater than or equal to 3.25 but Less than 4.00 160
Greater than or equal to 2.25 but Less than 3.25 127.50
Greater than or equal to 1.00 but Less than 2.25 102.50
Less than 1.00 77.50
The Agent shall give prompt notice to the Borrower and each
Lender (in any event within ten (10) Business Days of its receipt of the
quarterly financial statements or annual reports described in SECTION 5.01
hereof) of (i) the Floating Rate determined or adjusted in accordance with the
definition of the Floating Rate, (ii) the Fixed LIBOR Rate determined or
adjusted in accordance with the definition of the Fixed LIBOR Rate, and (iii)
the Applicable Margin Ratio (and corresponding Basis Points added or subtracted)
determined in accordance with the definition of the Applicable Margin Ratio
based upon the information set forth in the most recent quarterly financial
statements or annual reports described in SECTION 5.01 hereof, which
determinations or adjustments shall be conclusive absent manifest error, each
such determination or adjustment to be effective as of the first Business Day
following the most recently concluded fiscal quarter.
2.07. TERM LOAN B.
- ------------------
(a) TERM LOAN B COMMITMENT.
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<PAGE> 27
(i) Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees (such
agreement being herein called such Lender's "Term Loan B Commitment") to make a
loan ( "Term Loan B") to the Borrower on the date hereof. Notwithstanding the
obligations of the Agent, a Lender shall have no obligation to make Term Loan B
to the extent that (x) the principal amount of the Term Loan B of such Lender
would exceed such Lender's Term Loan B Committed Amount. Each Lender's "Term
Loan B Committed Amount" shall be equal to the amount set forth as its Term Loan
B Committed Amount below such Lender's name on the signature pages hereof.
(ii) Notwithstanding anything to the contrary in the foregoing
paragraph at no time during the term of this Agreement shall the aggregate
amount of the Lenders' Term Loan B Commitment, or the aggregate outstanding
principal balance of Term Loan B, exceed $8,000,000.
(b) NATURE OF CREDIT. Within the limits of time and amount set forth in
this SECTION 2.07, and subject to the provisions of this Agreement, the Borrower
may borrow and repay (but not reborrow) Term Loan B at the Fixed LIBOR Rate
Option or Floating Rate Option in Dollars.
(c) TERM LOAN B NOTE(S). The Term Loan B made by each Lender shall be
evidenced by Term Loan B Note(s) of the Borrower (one to each Lender), dated the
date hereof (the "Term Loan B Note(s)") in substantially the forms attached
hereto as EXHIBIT D, with the blanks appropriately filled, payable to the order
of such Lender in the principal amount equal to such Lender's Term Loan B
Committed Amount.
(d) PAYMENT TERMS. The Borrower shall make payments of interest only as
hereinafter provided to and including April 1, 2001. Thereafter, in addition to
the payments of interest as hereafter provided, the Borrower shall make on every
third (3rd) Regular Payment Date payments of principal to the Lenders with
respect to the Term Loan B in the aggregate amount sufficient to fully amortize
the outstanding principal balance of the Term Loan B as of June 1, 2001 over the
remainder of the term of Term Loan B until the Term Loan B Maturity Date, at
which time the entire outstanding principal balance, all accrued interest and
all other sums due from the Borrower shall be fully due and payable. The
Borrower hereby irrevocably authorizes the Agent, without further action or
authorization by or notice to the Borrower, to make payments of any amounts
owing under this Section by debiting and automatically transferring any amounts
from any account of Borrower now or hereafter established with Agent and for
such purpose, the Borrower hereby appoints the Agent as its agent and
attorney-in-fact. Nothing contained herein shall be deemed to obligate the Agent
at any time to make any such debit, transfer and/or payment nor shall the Agent
be liable to the Borrower or any other Person for any such debit, transfer or
payment or its failure or refusal at any time to do so.
2.08. INTEREST RATES FOR TERM LOAN B.
- -------------------------------------
The unpaid principal amount of the Term Loan B shall bear interest for
each day until due on the basis selected by the Borrower from between the
interest rate options set forth below:
(i) FLOATING RATE OPTION. A rate per annum (computed on a
basis of a year of 360 days and actual days elapsed) for each day equal to the
Prime Rate plus or minus, as the case may be, the amount of basis points
hereinafter set forth next to the Applicable Margin Ratio in
23
<PAGE> 28
effect as of the date the Floating Rate Option is (A) selected by the Borrower
or (B) otherwise goes or remains in effect pursuant to this Agreement:
APPLICABLE MARGIN RATIO (measured as of the
date the Floating Rate Option is selected by
Borrower or otherwise goes or remains in
effect pursuant to this Agreement) PLUS OR MINUS, AS INDICATED,
THE FOLLOWING BASIS POINTS:
Greater than or equal to 4.00 but Less than 4.50 50
Greater than or equal to 3.25 but Less than 4.00 37.5
Greater than or equal to 2.25 but Less than 3.25 12.5
Greater than or equal to 1.00 but Less than 2.25 0
Less than 1.00 -12.5
Such interest rate shall change automatically from time to time effective as of
the effective date of each change in the Prime Rate and each change in the
Applicable Margin Ratio.
(ii) FIXED LIBOR RATE OPTION. A rate per annum (based on a
year of 360 days and actual days elapsed) for each day during the applicable
Funding Period equal to the Fixed LIBOR Rate for such Funding Period plus the
amount of basis points hereinafter set forth next to the Applicable Margin Ratio
in effect as of the date the Fixed LIBOR Rate Option is selected by the Borrower
(subject to the provisions of SECTION 2.09 hereinafter set forth):
APPLICABLE MARGIN RATIO (measured as of the
date the Fixed LIBOR Rate Option selected by
Borrower goes into effect) ADDITIONAL BASIS POINTS:
Greater than or equal to 4.00 but Less than 4.50 275
Greater than or equal to 3.25 but Less than 4.00 215
Greater than or equal to 2.25 but Less than 3.25 190
Greater than or equal to 1.00 but Less than 2.25 165
Less than 1.00 140
The Agent shall give prompt notice to the Borrower and each Lender (in any event
within ten (10) Business Days of its receipt of the quarterly financial
statements or annual reports described in SECTION 5.01 hereof) of (i) the
Floating Rate determined or adjusted in accordance with the definition of the
Floating Rate, (ii) the Fixed LIBOR Rate determined or adjusted in accordance
with the definition of the Fixed LIBOR Rate, and (iii) the Applicable Margin
Ratio (and corresponding Basis Points added or subtracted) determined in
accordance with the definition of the Applicable Margin Ratio based upon the
information set forth in the most recent quarterly financial statements or
annual reports described in SECTION 5.01 hereof, which determinations or
adjustments shall be conclusive absent manifest error, each such determination
or adjustment to be effective as of the first Business Day following the most
recently concluded fiscal quarter.
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<PAGE> 29
C. ADDITIONAL PROVISIONS RELATING TO ALL CREDITS AND LOANS
- ----------------------------------------------------------
2.09. FIXED LIBOR RATE PROVISIONS.
- ----------------------------------
(a) FUNDING PERIODS. At any time when the Borrower shall select,
convert to or renew the Fixed LIBOR Rate Option to apply to any Loan, the
Borrower shall specify one or more periods (the "Funding Periods") during which
each such Option shall apply, which Funding Period may be one, two, three or six
months ("Fixed LIBOR Rate Funding Period"); PROVIDED, that:
(i) Each Fixed LIBOR Rate Funding Period shall begin on a London
Business Day, and the term "month", when used in connection with a Fixed LIBOR
Funding Rate Funding Period, shall be construed in accordance with prevailing
practices in the interbank Fixed LIBOR market at the commencement of such Fixed
LIBOR Rate Funding Period, as determined in good faith by the Agent (which
determination shall be conclusive if made in good faith, after applying
reasonable commercial standards and absent manifest error);
(ii) Borrower may not select a Funding Period that would end after
the Revolving Credit Maturity Date with respect to the Revolving Credit Loan,
Term Loan A Maturity Date, with respect to Term Loan A, or Term Loan B Maturity
Date, with respect to Term Loan B;
(iii) Borrower shall, in selecting any Funding Period, allow for
foreseeable mandatory prepayments of any Loans, if any.
(b) INABILITY TO DETERMINE INTEREST RATE. If prior to the first day of
any Funding Period:
(i) the Agent shall have determined (which determination shall be
conclusive and binding upon the Borrower) that adequate and reasonable means do
not exist for ascertaining the Fixed LIBOR Rate, or
(ii) Dollar deposits in the principal amounts of Fixed LIBOR Loans
to which such Funding Period is to be applicable are not generally available in
the London interbank market, then, in any such event, the Agent shall give
notice to the Borrower and the Lenders by fax or telephone as soon as
practicable thereafter. If such notice is given, (1) any Fixed LIBOR Loans
requested to be made on the first day of such Funding Period shall be made as
Floating Rate Loans and (2) any Loans that were to have been converted to or
continued as Fixed LIBOR Loans on the first day of such Funding Period shall be
converted to or continued as Floating Rate Loans. Until such notice has been
withdrawn by the Agent, no Loans shall be made as or converted to or continued
as Fixed LIBOR Loans.
(c) INCREASE IN EUROCURRENCY RESERVE REQUIREMENTS.
At any time when the Borrower may select, convert to or renew the
Fixed LIBOR Rate Option to apply to any Loan, if the Eurocurrency Reserve
Requirements have increased over the Eurocurrency Reserve Requirements as of the
Closing Date, so that the Fixed LIBOR Rate then available to Borrower exceeds
the Fixed LIBOR Rate that, notwithstanding such increase, would have been
available to Borrower, Borrower may, in lieu of the Fixed LIBOR Rate, select the
rate then in effect for 13-week bills offered by the United States Department of
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<PAGE> 30
the Treasury, plus (i) the number of basis points set forth next to the
Applicable Margin Ratio in effect as of such date set forth in Section
2.04(a)(ii), 2.06(a)(ii), or 2.08(ii), as applicable, plus (ii) an additional
fifty basis points.
2.10. CONVERSION OR RENEWAL OF INTEREST RATE OPTIONS.
- -----------------------------------------------------
(a) CONVERSION OR RENEWAL. Subject to the provisions of SECTIONS
2.01(b), 2.05(b), 2.07(b) and 2.16(b) hereof, and if no Event of Default or
Potential Default shall have occurred and be continuing or shall exist the
Borrower may convert any Loan from any interest rate Option or Options to one or
more interest rate Options (excepting, however, Term Loan A and Term Loan B,
each of which shall be converted only from one interest rate Option to one other
interest rate Option and excepting further any Swing Line Advance which shall at
all times bear interest at the Floating Rate Option) and may renew the Fixed
LIBOR Rate Option as to any Loan at any time with respect to conversion from the
Floating Rate Option, or at the expiration of any Funding Period with respect to
conversions from or renewals of the Fixed LIBOR Rate Option. Whenever the
Borrower desires to convert or renew any interest rate Option or Options,
Borrower shall provide to the Agent Standard Notice setting forth the following
information:
(w) The date, which shall be a Business Day, on which
the proposed conversion or renewal is to be made;
(x) The principal amounts of each Floating Rate Loan
and of each Fixed LIBOR Rate Loan, as the case may be, to be converted from or
renewed; and
(y) The interest rate Option or Options selected in
accordance with SECTIONS 2.04, 2.06 AND 2.08 hereof and the principal amounts of
the Floating Rate Loan and each Fixed LIBOR Rate Loan, as the case may be, to be
converted; and
(z) With respect to each Fixed LIBOR Rate Loan to be
converted or renewed, the Funding Period selected in accordance with SECTION
2.09 (a) hereof to apply to such Loan.
Standard Notice having been so provided, after the date specified in such
Standard Notice, interest shall be calculated upon the principal amount of the
Loans as so converted or renewed. Interest on the principal amount of any part
of the Loans converted or renewed (automatically or otherwise) shall be due and
payable on the conversion or renewal date.
(b) FAILURE TO CONVERT OR RENEW. Absent due notice from the Borrower of
conversion or renewal in the circumstances described in SECTION 2.10(a) hereof,
any part of the Fixed LIBOR Rate Loan for which such notice is not received
shall be converted automatically to the Floating Rate Option on the last day of
the expiring Funding Period.
2.11. PREPAYMENTS GENERALLY.
- ----------------------------
Whenever the Borrower desires or is required to prepay any part of its
Loans other than Swing Line Advances, it shall provide Standard Notice to the
Agent setting forth the following information:
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<PAGE> 31
(a) The date, which shall be a Business Day, on which the proposed
prepayment is to be made; and
(b) The total principal amount of such prepayment, as well as the sum
of the principal amounts of each Floating Rate Loan and each Fixed LIBOR Rate
Loan to be repaid.
Standard Notice having been so provided, on the date specified in such Standard
Notice, the principal amounts of the Floating Rate Loan and each Fixed LIBOR
Rate Loan specified in such notice, together with interest and Funding Breakage
Indemnity, if applicable, on each such principal amount to such date, shall be
due and payable.
2.12. OPTIONAL PREPAYMENTS.
- ---------------------------
The Borrower shall have the right at their option from time to time to
prepay its Loans in whole or part without premium or penalty:
(a) At any time with respect to any part of any Floating Rate Loan; or
(b) At the expiration of any Funding Period with respect to prepayment
of a Fixed LIBOR Rate Loan.
Any such prepayment shall be made in accordance with SECTION 2.11 hereof.
2.13. OTHER REPAYMENTS.
- -----------------------
(a) Mandatory Repayments. If at any time the aggregate outstanding
principal amount of Revolving Credit Loans (including, without limitation, any
Swing Line Advances), Term Loan A or Term Loan B shall exceed the Lenders'
Revolving Credit Commitment, Term Loan A Commitment or Term Loan B Commitment,
as the case may be, the Borrower with respect to such Loans shall repay on the
next succeeding Business Day (with respect to a Floating Rate Loan) or
expiration of the Funding Period (with respect to a Fixed LIBOR Rate Loan) the
entire amount of such excess. The Borrower hereby irrevocably authorizes the
Agent to make payments to the Lenders of any amounts owing under this Section by
debiting and automatically transferring any amounts without further action or
authorization by or notice to Borrower, from any account of Borrower now or
hereafter established with Agent. The Borrower hereby irrevocably authorizes the
Agent, without further action or authorization by or notice to the Borrower, to
make payments of any amounts owing under this Section by debiting and
automatically transferring any amounts from any account of Borrower now or
hereafter established with Agent and for such purpose, the Borrower hereby
appoints the Agent as its agent and attorney-in-fact. Nothing contained herein
shall be deemed to obligate the Agent at any time to make any such debit,
transfer and/or payment nor shall the Agent be liable to the Borrower or any
other Person for any such debit, transfer or payment or its failure or refusal
at any time to do so.
(b) Swing Line Repayments. To the extent there is an Excess Collected
Balance in the Lead Account under the Sweep Agreement, if one is in effect
between the Borrower and the Swing Line Bank at any applicable time, the
Borrower hereby irrevocably authorizes the Agent, without further action or
authorization by or notice to Borrower, to automatically transfer the Excess
Collected Balance to repayment of any outstanding Swing Line Advances. The
Borrower
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<PAGE> 32
hereby irrevocably authorizes the Agent, without further action or authorization
by or notice to the Borrower, to make payments of any amounts owing under this
Section by debiting and automatically transferring any amounts from any account
of Borrower now or hereafter established with Agent and for such purpose, the
Borrower hereby appoints the Agent as its agent and attorney-in-fact. Nothing
contained herein shall be deemed to obligate the Agent at any time to make any
such debit, transfer and/or payment nor shall the Agent be liable to the
Borrower or any other Person for any such debit, transfer or payment or its
failure or refusal at any time to do so.
2.14. INTEREST PAYMENT DATES.
- -----------------------------
Interest on each Floating Rate Loan (except if Term Loan A is at any
time a Floating Rate Loan) shall be due and payable on each Regular Payment
Date. If Term Loan A is at any time a Floating Rate Loan, interest on such Loan
shall be due and payable on each third (3rd) Regular Payment Date following the
establishment, conversion or the renewal of Term Loan A as a Floating Rate Loan.
Interest on each Fixed LIBOR Rate Loan (other than the Term Loan) shall be due
and payable on the last day of the corresponding Fixed LIBOR Rate Funding Period
and, if such Fixed LIBOR Rate Funding Period is longer than three months, also
every third month during such Funding Period. After maturity of any part of the
Loans (by acceleration or otherwise), interest on such part of the Loans shall
be due and payable on demand. The Borrower hereby irrevocably authorizes the
Agent, without further action or authorization by or notice to the Borrower, to
make payments to the Lenders of any amounts owing under this Section by debiting
and automatically transferring any amounts from any account of Borrower now or
hereafter established with Agent. The Borrower hereby irrevocably authorizes the
Agent, without further action or authorization by or notice to the Borrower, to
make payments of any amounts owing under this Section by debiting and
automatically transferring any amounts from any account of Borrower now or
hereafter established with Agent and for such purpose, the Borrower hereby
appoints the Agent as its agent and attorney-in-fact. Nothing contained herein
shall be deemed to obligate the Agent at any time to make any such debit,
transfer and/or payment nor shall the Agent be liable to the Borrower or any
other Person for any such debit, transfer or payment or its failure or refusal
at any time to do so.
2.15. PRO RATA TREATMENT; PAYMENTS GENERALLY; INTEREST ON OVERDUE AMOUNTS.
- --------------------------------------------------------------------------
(a) PRO RATA TREATMENT. (i) Each borrowing and conversion and renewal
of interest rate Options hereunder shall be made, and all payments made in
respect of principal and interest due from the Borrower hereunder or under the
Notes shall be applied, Pro Rata from and to each Lender, except payments to a
Demanding Lender pursuant to SECTION 2.18(a). The failure of any Lender to make
a Loan shall not relieve the Agent of its obligations hereunder or any other
Lender of its obligation to lend hereunder, but neither the Agent nor any Lender
shall be responsible for the failure of any other Lender to make a Loan, except
as expressly set forth in Section 2.01(a)(ii) with respect to the Agent's
obligations to make Revolving Credit Loans.
(ii) As used herein, the following terms shall have the meanings
set forth below:
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<PAGE> 33
(A) "DEFAULTING LENDER" shall mean any Lender which (x) does
not advance to the Agent such Lender's pro rata share of a Loan in accordance
herewith after notice of such failure from Agent, (y) shall otherwise fail to
perform such Lender's obligations under the Loan Documents after notice of such
failure from Agent, or (z) shall fail to pay the Agent, or any other Lender, as
the case may be, upon demand, such Lender's pro rata share of any costs,
expenses or disbursements incurred or made by the Agent pursuant to the terms of
the Loan Documents, and in all cases, such failure is not as a result of a good
faith dispute as to whether such advance is properly required to be made
pursuant to the provisions of this Agreement, or as to whether such other
performance or payment is properly required pursuant to the provisions of this
Agreement.
(B) "JUNIOR CREDITOR" means any Defaulting Lender which has
not (x) fully cured each and every default on its part under the Loan Documents
and (y) unconditionally tendered to the Agent such Defaulting Lender's pro rata
share of all costs, expenses and disbursements required to be paid or reimbursed
pursuant to the terms of the Loan Documents.
(C) "PAYMENT IN FULL" means, as of any date, the receipt by
the Lenders who are not Junior Creditors of an amount of cash, in Dollars,
sufficient to indefensibly pay in full all Senior Debt.
(D) "SENIOR DEBT" means (x) collectively, any and all
indebtedness, obligations and liabilities of the Borrower to the Lenders who are
not Junior Creditors from time to time, whether fixed or contingent, direct or
indirect, joint or several, due or not due, liquidated or unliquidated,
determined or undetermined, arising by contract, operation of law or otherwise,
whether on open account or evidenced by one or more instruments, and whether for
principal, premium, interest (including, without limitation, interest accruing
after the filing of a petition initiating any proceeding referred to in SECTION
7.01(n) hereof), reimbursement for fees, indemnities, costs, expenses or
otherwise, which arise under, in connection with or in respect of the Loans or
the Loan Documents, and (y) any and all deferrals, renewals, extensions and
refundings of, or amendments, restatements, rearrangements, modifications or
supplements to, any such indebtedness, obligation or liability.
(E) "JUNIOR DEBT" means (x) any and all indebtedness,
obligations and liabilities of Borrower to one or more Junior Creditors from
time to time, whether fixed or contingent, direct or indirect, joint or several,
due or not due, liquidated or unliquidated, determined or undetermined, arising
by contract, operation of law or otherwise, whether on open account or evidenced
by one or more instruments, and whether for principal, premium, interest
(including, without limitation, interest accruing after the filing of a petition
initiating any proceeding referred to in SECTION 7.01(n) hereof), reimbursement
for fees, indemnities, costs, expenses or otherwise, which arise under, in
connection with or in respect of the Loans or the Loan Documents, and (y) any
and all deferrals, renewals, extensions and refundings of, or amendments,
restatements, rearrangements, modifications or supplements to, any such
indebtedness, obligation or liability.
(iii) Immediately upon a Lender's becoming a Junior Creditor, no
Junior Creditor shall, prior to Payment in Full of all Senior Debt:
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<PAGE> 34
(A) accelerate, demand payment of, sue upon, collect, or
receive any payment upon, in any manner, or satisfy or otherwise discharge, any
Junior Debt, whether for principal, interest and otherwise;
(B) take or enforce any Liens to secure Junior Debt or attach
or levy upon any assets of Borrower, to enforce any Junior Debt;
(C) enforce or apply any security for any Junior Debt; or
(D) incur any debt or liability, or the like, to, or receive
any loan, return of capital, advance, gift or any other property, from, the
Borrower.
(iv) In the event of:
(A) any insolvency, bankruptcy, receivership, liquidation,
dissolution, reorganization, readjustment, composition or other similar
proceeding relating to Borrower;
(B) any liquidation, dissolution or other winding-up of the
Borrower, voluntary or involuntary, whether or not involving insolvency,
reorganization or bankruptcy proceedings;
(C) any assignment by the Borrower for the benefit of
creditors;
(D) any sale or other transfer of all or substantially all
assets of the Borrower; or
(E) any other marshalling of the assets of the Borrower;
each of the Lenders shall first have received Payment in Full of all Senior Debt
before any payment or distribution, whether in cash, securities or other
property, shall be made in respect of or upon any Junior Debt. Any payment or
distribution, whether in cash, securities or other property that would otherwise
be payable or deliverable in respect of Junior Debt to any Junior Creditor but
for this Agreement shall be paid or delivered directly to the Agent for
distribution to the Lenders in accordance with this Agreement until Payment in
Full of all Senior Debt. If any Junior Creditor receives any such payment or
distribution, it shall promptly pay over or deliver the same to the Agent for
application in accordance with the preceding sentence.
(v) Each Junior Creditor shall file in any bankruptcy or other
proceeding of Borrower in which the filing of claims is required by law, all
claims relating to Junior Debt that such Junior Creditor may have against
Borrower and assign to the Lenders who are not Junior Creditors all rights of
such Junior Creditor thereunder. If such Junior Creditor does not file any such
claim prior to forty-five (45) days before the expiration of the time to file
such claim, the Agent, as attorney-in-fact for such Junior Creditor, is hereby
irrevocably authorized to do so in the name of such Junior Creditor or, in the
Agent's sole discretion, to assign the claim to a nominee and to cause proof of
claim to be filed in the name of such nominee. The foregoing power of attorney
is coupled with an interest and cannot be revoked. The Agent shall, to the
exclusion of each Junior Creditor, have the sole right, subject to SECTION 9.03
hereof, to accept or reject any plan proposed in any such proceeding and to take
any other action that a party filing a claim is entitled to take. In all such
cases, whether in administration, bankruptcy or
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otherwise, the Person or Persons authorized to pay such claim shall pay to the
Agent the amount payable on such claim and, to the full extent necessary for
that purpose, each Junior Creditor hereby transfers and assigns to the Agent all
of the Junior Creditor's rights to any such payments or distributions to which
Junior Creditor would otherwise be entitled.
(vi) (A) If any payment or distribution of any character or any
security, whether in cash, securities or other property, shall be received by
any Junior Creditor in contravention of any of the terms hereof, such payment or
distribution or security shall be received in trust for the benefit of, and
shall promptly be paid over or delivered and transferred to, the Agent for
application to the payment of all Senior Debt, to the extent necessary to
achieve Payment in Full. In the event of the failure of any Junior Creditor to
endorse or assign any such payment, distribution or security, the Agent is
hereby irrevocably authorized to endorse or assign the same as attorney-in-fact
for such Junior Creditor.
(B) Each Junior Creditor shall take such action (including,
without limitation, the execution and filing of a financing statement with
respect to this Agreement and the execution, verification, delivery and filing
of proofs of claim, consents, assignments or other instructions that the Agent
may require from time to time in order to prove or realize upon any rights or
claims pertaining to Junior Debt or to effectuate the full benefit of the
subordination contained herein) as may, in the Agent's sole and absolute
discretion, be necessary or desirable to assure the effectiveness of the
subordination effected by this Agreement.
(vii) (A) Each Lender that becomes a Junior Creditor
understands and acknowledges by its execution hereof that each other Lender is
entering into this Agreement and the Loan Documents in reliance upon the
absolute subordination in right of payment and in time of payment of Junior Debt
to Senior Debt as set forth herein.
(B) Only upon the Payment in Full of all Senior Debt shall any
Junior Creditor be subrogated to any remaining rights of the Lenders which are
not Defaulting Lenders to receive payments or distributions of assets of the
Borrower made on or applicable to any Senior Debt.
(C) Each Junior Creditor agrees that it will deliver all
instruments or other writings evidencing any Junior Debt held by it to the
Agent, promptly after request therefor by the Agent.
(D) No Junior Creditor may at any time sell, assign or
otherwise transfer any Junior Debt, or any portion thereof, including, without
limitation, the granting of any Lien thereon, unless and until satisfaction of
the requirements of SECTION 9.14 hereof and the proposed transferee shall have
assumed in writing the obligation of the Junior Creditor to the Lenders under
this Agreement, in a form acceptable to the Agent.
(E) If any of the Senior Debt should be invalidated, avoided
or set aside, the subordination provided for herein nevertheless shall continue
in full force and effect and, as between the Lenders which are not Defaulting
Lenders and all Junior Creditors, shall be and be deemed to remain in full force
and effect.
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(F) Each Junior Creditor hereby irrevocably waives, in
respect of Junior Debt, all rights (x) under Sections 361 through 365, 502(e)
and 509 of the Bankruptcy Code (or any similar sections hereafter in effect
under any other Federal or state laws or legal or equitable principles relating
to bankruptcy, insolvency, reorganizations, liquidations or otherwise for the
relief of debtors or protection of creditors), and (y) to seek or obtain
conversion to a different type of proceeding or to seek or obtain dismissal of a
proceeding, in each case in relation to a bankruptcy, reorganization, insolvency
or other proceeding under similar laws with respect to the Borrower. Without
limiting the generality of the foregoing, each Junior Creditor hereby
specifically waives (1) the right to seek to give credit (secured or otherwise)
to the Borrower in any way under Section 364 of the Bankruptcy Code unless the
same is subordinated in all respects to Senior Debt in a manner acceptable to
the Agent in its sole and absolute discretion and (2) the right to receive any
collateral security (including any "super priority" or equal or "priming" or
replacement Lien) for any Junior Debt unless the Lenders which are not
Defaulting Lenders have received a senior position acceptable to the Lenders in
their sole and absolute discretion to secure all Senior Debt (in the same
collateral to the extent collateral is involved).
(viii) (A) In addition to and not in limitation of the
subordination effected by this SECTION 2.15, the Agent and each of the Lenders
which are not Defaulting Lenders may in their respective sole and absolute
discretion, also exercise any and all other rights and remedies available at law
or in equity in respect of a Defaulting Lender; and
(B) The Agent shall give each of the Lenders notice of the
occurrence of a default under this SECTION 2.15 by a Defaulting Lender and if
the Agent and/or one or more of the other Lenders shall, at their option, fund
any amounts required to be paid or advanced by a Defaulting Lender, the other
Lenders who have elected not to fund any portion of such amounts shall not be
liable for any reimbursements to the Agent and/or to such other funding Lenders.
(ix) Notwithstanding anything to the contrary contained or
implied herein, a Defaulting Lender shall not be entitled to vote on any matter
as to which a vote by the Lenders is required hereunder, including, without
limitation, any actions or consents on the part of the Agent as to which the
approval or consent of all the Lenders or the Required Lenders is required, so
long as such Lender is a Defaulting Lender; PROVIDED, HOWEVER, that in the case
of any vote requiring the unanimous consent of the Lenders, if all the Lenders
other than the Defaulting Lender shall have voted in accordance with each other,
then the Defaulting Lender shall be deemed to have voted in accordance with such
Lenders.
(x) Each of the Agent and any one or more of the Lenders which
are not Defaulting Lenders may, at their respective option, (i) advance to the
Borrower such Lender's pro rata share of the Loans not advanced by a Defaulting
Lender in accordance with the Loan Documents, or (ii) pay to the Agent such
Lender's pro rata share of any costs, expenses or disbursements incurred or made
by the Agent pursuant to the terms of this Agreement not theretofore paid by a
Defaulting Lender. Immediately upon the making of any such advance by the Agent
or any one of the Lenders, such Lender's pro rata share and the pro rata share
of the Defaulting Lender shall be recalculated to reflect such advance. All
payments, repayments and other disbursements of funds by the Agent to Lenders
shall thereupon and, at all times thereafter be made in accordance with such
Lender's recalculated pro rata share unless and until a
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<PAGE> 37
Defaulting Lender shall fully cure all defaults on the part of such Defaulting
Lender under the Loan Documents or otherwise existing in respect of the Loans or
this Agreement, at which time the pro rata share of the Lender(s) which advanced
sums on behalf of the Defaulting Lender and of the Defaulting Lender shall be
restored to their original percentages.
(b) PAYMENTS GENERALLY. Except for payments and prepayments of Swing
Line Advances, all payments and prepayments to be made by the Borrower in
respect of principal, interest, fees, indemnity, expenses or other amounts due
from the Borrower hereunder or under any Loan Document shall be payable in
Dollars at or prior to 12:00 o'clock noon, New York time, on the day when due
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived (except as provided herein), and a cause of action
therefor shall immediately accrue, without setoff, counterclaim, withholding or
other deduction of any kind or nature. Except for payments under SECTIONS 2.16
and 8.07 hereof, such payments shall be made to the Agent at its Office in
Dollars in funds immediately available at such Office, and payments under
SECTIONS 2.16 and 8.07 hereof shall be made to the Agent at such domestic
account as it shall specify to the Borrower from time to time in funds
immediately available at such account. Any payment or prepayment received by the
Agent after 12:00 o'clock noon, New York time, on any day shall be deemed to
have been received on the next succeeding Business Day. The Borrower hereby
irrevocably authorizes the Agent, without further action or authorization by or
notice to the Borrower, to make payments to the Lenders of any amounts owing
under this Section by debiting and automatically transferring any amounts from
any account of Borrower now or hereafter established with Agent. The Borrower
hereby irrevocably authorizes the Agent, without further action or authorization
by or notice to the Borrower, to make payments of any amounts owing under this
Section by debiting and automatically transferring any amounts from any account
of Borrower now or hereafter established with Agent and for such purpose, the
Borrower hereby appoints the Agent as its agent and attorney-in-fact. Nothing
contained herein shall be deemed to obligate the Agent at any time to make any
such debit, transfer and/or payment nor shall the Agent be liable to the
Borrower or any other Person for any such debit, transfer or payment or its
failure or refusal at any time to do so.
(c) PAYMENTS DUE ON DAY OTHER THAN BUSINESS DAY. If any payment
hereunder (other than payments on Fixed LIBOR Rate Loans) becomes due and
payable on a day other than a Business Day, such payment date shall be extended
to the next succeeding Business Day, and interest thereon shall be payable at
the then applicable rate during such extension. If any payment on a Fixed LIBOR
Rate Loan becomes due and payable on a day other than a London Business Day, the
maturity thereof shall be extended to the next succeeding London Business Day
unless the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding London Business Day.
(d) INTEREST ON OVERDUE AMOUNTS. To the extent permitted by law, after
there shall have become due (by acceleration or otherwise) principal, interest,
fees, indemnity, expenses or any other amounts due from the Borrower or any
Guarantor hereunder or under any other Loan Document, such amounts shall bear
interest for each day until paid (before and after judgment), payable on demand,
at a rate per annum (in each case based on a year of 360 days and actual days
elapsed) which for each day shall be equal to two percent (2%) above the
then-current Prime Rate.
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<PAGE> 38
(e) LATE PAYMENT CHARGES. To the extent permitted by law, any payment
due from the Borrower or any Guarantor hereunder or under any other Loan
Document which is not received by the Agent within fifteen (15) days after the
date due shall be subject, in addition to all other sums due hereunder or any
other Loan Document, to a late payment charge equal to five percent (5%) of the
amount of such overdue payment which late payment charge shall, without further
notice or demand, be immediately due and payable by the Borrower.
To the extent permitted by law, interest accrued on any amount which has become
due hereunder or under any Loan Document shall compound on a day-by-day basis,
and hence shall be added daily to the overdue amount to which such interest
relates.
2.16. ADDITIONAL COMPENSATION IN CERTAIN CIRCUMSTANCES.
- -------------------------------------------------------
(a) INCREASED COSTS OR REDUCED RETURN RESULTING FROM TAXES, RESERVES,
CAPITAL ADEQUACY REQUIREMENTS, EXPENSES, ETC. If after the date hereof any Law
or guideline or interpretation or application thereof by any United States
Governmental Authority charged with the interpretation or administration thereof
or compliance with any request or directive of any United States Governmental
Authority (whether or not having the force of law):
(i) subjects any Lender to any tax or changes the basis of taxation
with respect to this Agreement, the Notes, the Loans or payments by the Borrower
of principal, interest, commitment fee or other amounts due from the Borrower
hereunder or under the Notes (except for taxes on the overall net income or
overall gross receipts of the Lender imposed by the jurisdictions (federal,
state and local) in which the Lender's principal office is located),
(ii) imposes, modifies or deems applicable any reserve, special
deposit or similar requirement against credits or commitments to extend credit
extended by, assets (funded or contingent) of, deposits with or for the account
of, other acquisitions of funds by, any Lender (other than requirements
expressly included herein in the determination of the Fixed LIBOR Rate
hereunder),
(iii) imposes, modifies or deems applicable any capital adequacy or
similar requirement (A) against assets (funded or contingent) of, or credits or
commitments to extend credit extended by, any Lender or (B) otherwise applicable
to the obligations of any Lender under this Agreement, or
(iv) imposes upon any Lender any other expense with respect to this
Agreement, the Notes or its making, maintenance or funding of any Loan or any
security therefor,
and the result of any of the foregoing is to increase the cost to, reduce the
income receivable by, or impose any expense (including loss of margin) upon any
Lender, or in the case of clause (iii) hereof, any Person controlling a Lender,
with respect to this Agreement, the Notes or the making, maintenance or funding
of any Loan (or, in the case of any capital adequacy or similar requirement, to
have the effect of reducing the rate of return on such Lender's or controlling
Person's capital, taking into consideration such Lender's or controlling
Person's policies with respect to capital adequacy) by an amount which such
Lender deems to be material such Lender may from time to time notify the
Borrower of the amount determined in good faith (using any averaging and
attribution methods) by such Lender (which determination shall be conclusive,
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<PAGE> 39
absent manifest error) to be necessary to compensate such Lender or such for
such increase, reduction or imposition. Such amount shall be due and payable by
the Borrower to such Lender thirty (30) Business Days after such notice is given
unless the Borrower has given notice of its intention to replace such Lender
pursuant to Section 2.18. A certificate by such Lender as to the amount due and
payable under this SECTION 2.16(a) from time to time and the method of
calculating such amount shall be conclusive absent manifest error. Each Lender
agrees that it will use good faith efforts to notify the Borrower of the
occurrence of any event that would give rise to a payment under this SECTION
2.16(a); pROVIDED, HOWEVER, that any failure of such Lender to give any such
notice shall have no effect on the Borrowers' obligations hereunder.
(b) FUNDING BREAKAGE. In addition to all other amounts payable
hereunder, if and to the extent for any reason any part of any Fixed LIBOR Rate
Loan becomes due (by acceleration or otherwise), or is paid, prepaid or
converted to another interest rate Option (whether or not such payment,
prepayment or conversion is mandatory or automatic and whether or not such
payment or prepayment is then due), on a day other than the last day of the
corresponding Funding Period (the date such amount so becomes due, or is so
paid, prepaid or converted, being referred to as the "Funding Breakage Date")
excepting, however, by reason solely of a Lender's decision, action or election
to require such payment, prepayment or conversion other than by reason of the
scheduled maturity thereof or the occurrence of an Event of Default, the
Borrower shall pay each Lender an amount ("Funding Breakage Indemnity")
determined by such Lender by calculating a sum equal to: (i) the amount of
interest which otherwise would have accrued on the principal amount so paid for
the period from and including the date of such payment to but excluding the last
day of the Fixed LIBOR Rate Funding Period for such Fixed LIBOR Rate Loan at the
applicable rate of interest for such Loan provided for herein; over (ii) the
amount of interest the Lender would have bid in the London interbank market for
U.S. Dollars for amounts comparable to such principal amount and maturities
comparable to such period.
Such Funding Breakage Indemnity shall be due and payable on demand. In
addition, the Borrower shall, on the due date for payment of any Funding
Breakage Indemnity, pay to such Lender an additional amount equal to interest on
such Funding Breakage Indemnity from the Funding Breakage Date to but not
including such due date at the Floating Rate Option (calculated on the basis of
a year of 360 days and actual days elapsed). The amount payable to each Lender
under this SECTION 2.16(b) shall be determined in good faith by such Lender and
such determination shall be conclusive, absent manifest error.
2.17. TAXES.
- ------------
(a) PAYMENTS NET OF TAXES. All payments made by the Borrower under this
Agreement or any other Loan Document shall be made free and clear of, and
without reduction or withholding for or on account of, any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, and all liabilities with respect
thereto, excluding, in the case of the Agent and each Lender, income or
franchise taxes imposed on the Agent or such Lender (all such non-excluded
taxes, levies, imposts, deductions, charges or withholdings being hereinafter
called "Taxes"). If any Taxes are required to be withheld or deducted from any
amounts payable to the Agent or any Lender under this Agreement or any other
Loan Document, the Borrower shall pay the relevant amount of such Taxes (net of
any tax or other financial benefit the Agent or such Lender received in
connection therewith as a result of
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any tax treaties or similar agreement) and the amounts so payable to the Agent
or such Lender shall be increased to the extent necessary to yield to the Agent
or such Lender (after payment of all Taxes) interest or any such other amounts
payable hereunder at the rates or in the amounts specified in this Agreement and
the other Loan Documents. Whenever any Taxes are paid by the Borrower with
respect to payments made in connection with this Agreement or any other Loan
Document, as promptly as possible thereafter, the Borrower shall send to the
Agent for its own account and for the account of such Lender, as the case may
be, a certified copy of an original official receipt received by the Borrower
showing payment thereof.
(b) INDEMNITY. The Borrower hereby indemnifies the Agent and each
Lender for the full amount of all Taxes attributable to payments by or on behalf
of the Borrower hereunder or under any of the other Loan Documents, any Taxes
paid by the Agent or such Lender, as the case may be, any present or future
claims, liabilities or losses with respect to or resulting from any omission to
pay or delay in paying any Taxes (including any incremental Taxes, interest or
penalties that may become payable by the Agent or such Lender as a result of any
failure to pay such Taxes), whether or not such Taxes were correctly or legally
asserted. Such indemnification shall be made within thirty (30) days from the
date the Agent or such Lender, as the case may be, makes written demand
therefor.
2.18. REPLACEMENT OR REMOVAL OF LENDER.
- ---------------------------------------
(a) If a Lender (the "Demanding Lender") has made demand for the
Borrower to pay any material amount under SECTION 2.16(a) or 2.17, or if the
Demanding Lender has invoked its discretion to decline to make a Fixed LIBOR
Rate Loan, including, but not limited to, by reason of SECTION 2.09(b) hereof
(in which event the Agent shall have no obligation whatsoever to make any Loan
to the Borrower in such corresponding amount), then:
(i) the Borrower may provide written notice to the Demanding Lender
that they intend to replace the Demanding Lender, which notice shall include an
offer in writing from another financial institution to purchase the Demanding
Lender's entire Revolving Credit Committed Amount in accordance with SECTION
9.14 (c), at a price equal to the full outstanding principal amount, together
with accrued and unpaid interest to the date of purchase accrued or payable to
the Demanding Lender to the date of purchase, in which event the Demanding
Lender shall have twenty-four (24) hours after receipt of such notice from the
Borrower to elect to (A) withdraw its demand for payment under SECTION 2.16(a)
or 2.17 (and refund any amounts paid pursuant to such demands made under such
SECTION 2.16(a) or 2.17) or withdraw its invocation of the discretion to decline
to make a Fixed LIBOR Rate Loan, or (B) accept such offer; or
(ii) the Borrower may provide written notice to the Demanding
Lender that the Borrower has requested that the remaining Lenders (other than
the Demanding Lender) permit, and the remaining Lenders have agreed in writing
to permit, the Borrower to repay the Demanding Lender's Revolving Credit Loan in
full and to reduce the Revolving Credit Committed Amount by an amount equal to
the Demanding Lender's Revolving Credit Committed Amount, which notice shall
contain evidence of such written agreement by the remaining Lenders, in which
event the Demanding Lender shall have twenty-four (24) hours after receipt of
such notice from the Borrower to elect to withdraw its demand for payment under
SECTION 2.16(a) or 2.17 (and refund any amounts paid pursuant to such demands
made under such SECTION 2.16(a) or 2.17), or withdraw its invocation of its
discretion to decline to make a Fixed
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LIBOR Rate Loan, whichever is applicable. If the Demanding Lender shall not have
withdrawn its demand within such twenty-four (24) hour period (A) the Borrower
shall pay to the Demanding Lender the full outstanding principal amount,
together with accrued and unpaid interest and fees to the date of such payment
and all other amounts accrued or payable to the Demanding Lender to the date of
such payment, and (B) the Commitment Percentage of each remaining Lender shall
be increased ratably so that the sum of all Commitment Percentages equals one
hundred percent (100%).
(b) In the event of the replacement or removal of a Demanding Lender
pursuant to SECTION 2.18(a), the Demanding Lender shall be released from its
obligations under this Agreement and shall cease to be a party to this Agreement
from and after the date of such replacement or removal.
2.19. GUARANTEES.
- -----------------
The Loan shall be guaranteed throughout the term hereof by each
Guarantor pursuant to the Guaranty.
ARTICLE III: REPRESENTATIONS AND WARRANTIES OF BORROWER
-------------------------------------------------------
The Borrower hereby represents and warrants to the Agent and each
Lender as follows:
3.01. CORPORATE STATUS.
- -----------------------
Borrower and each Subsidiary is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and has corporate power, capacity and authority to own its
property and to transact the business in which it is engaged or presently
proposes to engage. Borrower is duly qualified to do business and is in good
standing in New York and in such other jurisdictions as is material to the
Borrower. As of the date hereof, except as disclosed on SCHEDULE 3.01 hereof,
Borrower has no Subsidiaries.
3.02. CORPORATE POWER AND AUTHORIZATION.
- ----------------------------------------
Borrower and each Subsidiary has corporate power, capacity and
authority to execute, deliver, perform, and take all actions contemplated by,
each Loan Document to which it is a party, and all such action has, or prior to
the Closing Date shall have, been duly and validly authorized by all necessary
corporate proceedings on its part.
3.03. EXECUTION AND BINDING EFFECT.
- -----------------------------------
This Agreement and the Notes have been duly and validly executed and
delivered by Borrower. This Agreement constitutes, and each other Loan Document
to which Borrower is a party, when executed and delivered by Borrower will
constitute, the legal, valid and binding obligations of Borrower enforceable
against Borrower, in accordance with their respective terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or other similar
laws of general application affecting the enforcement of creditors rights or by
general principles of equity limiting the availability of equitable remedies.
Each Guaranty, with respect to a Guarantor, when executed and delivered by such
Guarantor, will constitute the legal, valid and
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binding obligation of such Guarantor, enforceable against such Guarantor in
accordance with their respective terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors rights or by general
principles of equity limiting the availability of equitable remedies.
3.04. GOVERNMENTAL APPROVALS AND FILINGS.
- -----------------------------------------
No approval, order, consent, authorization, certificate, license,
permit or validation of, or exemption or other action by, or filing, recording
or registration with, or notice to, any Governmental Authority (collectively,
"Governmental Action") is or will be necessary or advisable in connection with
execution and delivery of this Agreement or any other Loan Document by the
Borrower, or any Subsidiary, or consummation by the Borrower, or any Subsidiary
of the transactions contemplated hereby or thereby, performance of or compliance
with the terms and conditions hereof or thereof by the Borrower, or any
Subsidiary or to ensure the legality, validity, binding effect or enforceability
hereof or thereof, except in each case such filings and/or recordings of such of
the Loan Documents and any related financing statements as is contemplated by
the terms hereof or thereof.
3.05. ABSENCE OF CONFLICTS.
- ---------------------------
Following application of the loan proceeds to repay Existing
Indebtedness, neither the execution and delivery of this Agreement or any other
Loan Documents by Borrower or any Subsidiary, nor consummation by Borrower or
any Subsidiary of the transactions contemplated hereby or thereby, nor
performance of or compliance with the terms and conditions hereof or thereof by
Borrower or any Subsidiary does or will:
(a) violate or conflict with any Law, or
(b) violate, conflict with or result in a breach of any term or
condition of, or constitute a default under, or result in (or give rise to any
right, contingent or otherwise, of any Person to cause) any termination,
cancellation, prepayment or acceleration of performance of, or result in the
creation or imposition of (or give rise to any obligation, contingent or
otherwise, to create or impose) any Lien upon any property of Borrower or any
Subsidiary pursuant to, or otherwise result in (or give rise to any right,
contingent or otherwise, of any Person to cause) any change in any right, power,
privilege, duty or obligation of Borrower or any Subsidiary which would result
in a Material Adverse Effect, under or in connection with,
(i) the articles of incorporation or by-laws (or other constituent
documents) of Borrower or any Subsidiary, or
(ii) any agreement or instrument creating, or evidencing any
Indebtedness to which Borrower or any Subsidiary is a party or by which it as
any of its properties (now owned or hereafter acquired) may be subject or bound,
or
(iii) any agreement or instrument or arrangement to which Borrower
or any Subsidiary is a party or by which any of its respective properties (now
owned or hereafter acquired) may be subject or bound.
3.06. AUDITED FINANCIAL STATEMENTS.
- -----------------------------------
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The Borrower has heretofore furnished to the Agent and each Lender
consolidated audited balance sheets of the Borrower and its consolidated
Subsidiaries as of March 31, 1998 and the related statements of income, cash
flows and changes in stockholders' equity for the fiscal year then ended. Such
financial statements (including the notes thereto) present fairly the
consolidated financial condition of the Borrower and its consolidated
Subsidiaries as of the end of such fiscal year and the consolidated results of
their operations and their cash flows for the fiscal year then ended, all in
conformity with GAAP.
3.07. CONSOLIDATING AND CONSOLIDATED FINANCIAL STATEMENTS.
- ----------------------------------------------------------
The Borrower has prior to the Closing Date furnished to the Agent and
each Lender management's internally generated consolidating and consolidated
balance sheets of the Borrower and its consolidated Subsidiaries as of the end
of the first fiscal quarter of the fiscal year beginning April 1, 1998, together
with the related consolidating and consolidated statements of income and
consolidated statement of cash flow for the applicable fiscal periods ending on
each such date. Such financial statements (including the notes thereto) present
fairly the consolidated financial condition of the Borrower as of the end of
each such fiscal quarter and the results of its operations and cash flows for
the fiscal periods then ended, all in conformity with GAAP (except to the extent
set forth in the notes to said financial statements) subject to normal and
recurring year-end audit adjustments.
3.08. ABSENCE OF UNDISCLOSED LIABILITIES.
- -----------------------------------------
Neither Borrower nor any Subsidiary has any liability or obligation of
any nature whatever (whether absolute, accrued, contingent or otherwise, whether
or not due), forward or long-term commitments or unrealized or anticipated
losses from unfavorable commitments, except (x) as disclosed in the financial
statements referred to in SECTIONS 3.06 and 3.07 hereof, obligations of the
Borrower and any Subsidiaries to any of each other, or otherwise in writing
delivered to the Agent prior to the date hereof, (y) matters that, individually
or in the aggregate, are reasonably expected not to have a Material Adverse
Effect, and (z) liabilities, obligations, commitments and losses incurred after
March 31, 1998, in the ordinary course of business and consistent with past
practices.
3.09. ABSENCE OF MATERIAL ADVERSE CHANGES.
- ------------------------------------------
Since March 31, 1998, there has been no change in the business,
operations or condition (financial or otherwise) or prospects of Borrower and
its Subsidiaries or any Guarantor taken as a whole, which could be reasonably
expected to have a Material Adverse Effect.
3.10. ACCURATE AND COMPLETE DISCLOSURE.
- ---------------------------------------
All written information heretofore, contemporaneously and hereafter
provided by or on behalf of Borrower or any Subsidiary to the Agent or any
Lender pursuant to or in connection with any Loan Document or any transaction
contemplated hereby or thereby is or will be (as the case may be) true and
accurate in all material respects on the date as of which such information is
dated (or, if not dated, when received by the Agent or such Lender) and does not
or will not (as the case may be) omit to state any material fact necessary to
make such information not
39
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misleading in a material respect at such time in light of the circumstances in
which it was provided.
3.11. OWNERSHIP AND CONTROL.
- ----------------------------
The outstanding shares of capital stock of Borrower have been duly
authorized and validly issued and are fully paid and non-assessable. There are
no options, warrants, calls, subscriptions, conversion rights, exchange rights,
pre-emptive rights or other rights, agreements or arrangements (contingent or
otherwise) which may in any circumstances now or hereafter obligate Borrower to
issue any shares of its capital stock except as set forth in the financial
statements referred to in Section 3.07.
3.12. LITIGATION.
- -----------------
Except as set forth on SCHEDULE 3.12, there is no pending or (to Borrower's
knowledge after due inquiry) threatened action, suit, proceeding or
investigation by or before any Governmental Authority against or affecting
Borrower or any Subsidiary except for matters that are not reasonably expected
to have a Material Adverse Effect.
3.13. ABSENCE OF EVENTS OF DEFAULT.
- -----------------------------------
No event has occurred and is continuing and no condition exists which
constitutes an Event of Default or Potential Default.
3.14. INSURANCE.
- ----------------
Borrower and each Subsidiary maintains with financially sound and
reputable insurers (not related to or affiliated with the Borrower or any
Subsidiary) insurance with respect to its properties and business and against at
least such liabilities, casualties and contingencies and in at least such types
and amounts as is customary in the case of corporations engaged in the same or a
similar business or having similar properties similarly situated. There are no
material claims, actions, suits, proceedings against, arising under or based
upon any of such insurance policies.
3.15. TITLE TO PROPERTY.
- ------------------------
Subject to Permitted Liens, Borrower and each Subsidiary has good and
marketable title in fee simple or by lease to all real property owned or
purported to be owned by it and good title to all other material property of
whatever nature owned by it, which, as of the date hereof, includes, but is not
limited to, all property reflected in the most recent audited balance sheet
referred to in SECTION 3.06 hereof.
3.16. INTELLECTUAL PROPERTY.
- ----------------------------
Borrower and each Subsidiary owns, or is licensed or otherwise has the
right to use, all patents, trademarks, service marks, names (trade, service,
fictitious or otherwise), copyrights, technology (including, but not limited to,
computer programs and software), processes, data bases and other rights, free
from material burdensome restrictions, necessary to own and operate its
properties and to carry on its business as presently conducted, and presently
planned to be conducted, without material conflict with the rights of others.
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<PAGE> 45
3.17. TAXES.
- ------------
All tax and information returns required to be filed by or on behalf of
Borrower or any Subsidiary of the Borrower have been properly prepared, executed
and filed. All taxes, assessments, fees and other governmental charges upon
Borrower or any Subsidiary of the Borrower or upon any of its respective
properties, incomes, sales or franchises which are due and payable have been
paid other than those not yet delinquent and payable without premium or penalty,
and except for those being diligently contested in good faith by appropriate
proceedings and except for those where failure to pay would not have a Material
Adverse Effect, and in each case, adequate reserves and provisions for taxes
have been made on the books of Borrower and/or such Subsidiary of the Borrower.
The reserves and provisions for taxes on the books of Borrower and/or such
Subsidiary of the Borrower are adequate for all open years and for its current
fiscal period. Neither Borrower nor any Subsidiary of the Borrower knows of any
proposed additional assessment or basis or any material assessment for
additional taxes (whether or not reserved against). Neither Borrower nor any
Subsidiary of the Borrower has at any time filed a consolidated tax return with
any Person other than Borrower or a Subsidiary of Borrower.
3.18. EMPLOYEE BENEFITS.
- -----------------------
The Borrower and its ERISA Affiliates have fulfilled their respective
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and are in compliance in all material respects with the
presently applicable provisions of ERISA and the Code, and have not incurred any
liability to the PBGC or any Plan or Multiemployer Plan (other than to make
contributions, pay annual PBGC premiums or pay out benefits in the ordinary
course of business).
3.19. ENVIRONMENTAL MATTERS.
- ----------------------------
Each of the Borrower and its Subsidiaries has obtained all
environmental, health and safety permits, licenses and other authorizations
required under all Environmental Laws to carry on its business as now being or
as proposed to be conducted, except as set forth in SCHEDULE 3.19 hereto and
except to the extent failure to have any such permit, license or authorization
would not (either individually or in the aggregate) have a Material Adverse
Effect. Each of such permits, licenses and authorizations is in full force and
effect and each of the Borrower and its Subsidiaries is in compliance with the
terms and conditions thereof, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in any applicable Environmental
Law or in any regulation, code, plan, order, decree, judgment, injunction,
notice or demand letter issued, entered, promulgated or approved thereunder,
except as set forth in SCHEDULE 3.20 hereto and except to the extent failure to
comply therewith would not (either individually or in the aggregate) have a
Material Adverse Effect. No Lien exists and, to Borrower's knowledge, no
condition exists which is likely to result in the filing of a Lien, against any
property of Borrower or any of its Subsidiaries under any Environmental Law.
3.20. SECURITIES LAWS COMPLIANCE.
- ---------------------------------
Neither Borrower nor any Person acting on any of its behalf has
directly or indirectly offered or sold any interest in the Notes or any other
related securities to, solicited offers to buy
41
<PAGE> 46
any such interest or securities from, or otherwise approached or negotiated in
respect of the purchase and sale or other disposition of any such interest or
securities with, any Person so as to bring the transactions contemplated hereby
within the registration provisions of the Securities Act of 1933, as amended.
3.21. MARGIN REGULATIONS.
- -------------------------
No part of the proceeds of any Loan hereunder will be used for the
purpose of buying or carrying any "margin stock," as such term is used in
Regulations G and U of the Board of Governors of the Federal Reserve System, as
amended from time to time, or to extend credit to others for the purpose of
buying or carrying any "margin stock." Neither Borrower nor any Subsidiary of
Borrower is engaged in the business of extending credit to others for the
purpose of buying or carrying "margin stock." Neither Borrower nor any
Subsidiary of Borrower owns any "margin stock. Neither the making of any Loan
nor any use of proceeds of any such Loan will violate or conflict with the
provisions of Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System, as amended from time to time.
3.22. SUBSIDIARIES.
- -------------------
SCHEDULE 3.22 hereof states as of the date , the number of shares of
each class of capital stock issued and outstanding of each such Subsidiary of
the Borrower, and the number and percentage of outstanding shares of each such
class of capital stock owned by the Borrower and by each Subsidiary. The
outstanding shares of each Subsidiary have been duly authorized and validly
issued and are fully paid and nonassessable. As of the date hereof, the Borrower
and each Subsidiary of the Borrower own beneficially and of record and have good
title to all of the shares they are listed as owning in such SCHEDULE 3.22 free
and clear of any Lien excepting Permitted Liens. As of the date hereof, except
as set forth on SCHEDULE 3.22, there are no options, warrants, calls,
subscriptions, conversion rights, exchange rights, preemptive rights or other
rights, agreements or arrangements (contingent or otherwise) which may in any
circumstance now or hereafter obligate any Subsidiary to issue any shares of its
capital stock or any other securities.
3.23. PARTNERSHIPS, ETC.
- ------------------------
Except as disclosed in SCHEDULE 3.24 hereto, neither Borrower nor any
Subsidiary is a partner (general or limited) of any partnership, is a party to
any joint venture or owns (beneficially or of record) any equity or similar
interest in any Person (including, but not limited to, any interest pursuant to
which the Borrower or its Subsidiaries have or may in any circumstance have an
obligation to make capital contributions to, or be generally liable for or on
account of the liabilities, acts or omissions of such other Person).
3.24. LABOR RELATIONS.
- ----------------------
Neither the Borrower nor any Subsidiary has engaged in any unfair labor
practice which could reasonably be expected to have a Material Adverse Effect.
As of the date hereof, there is (a) no unfair labor practice complaint pending
or, to the best knowledge of the Borrower, threatened against the Borrower or
any Subsidiary before the National Labor Relations Board of the United States of
America or any comparable body or agency in any other jurisdiction which could
reasonably be expected to have a Material Adverse Effect on the Borrower or such
42
<PAGE> 47
Subsidiary and no grievance or arbitration proceeding arising out of or under a
collective bargaining agreement is so pending or threatened; (b) no strike,
labor dispute, slowdown or stoppage is pending or, to the best knowledge of the
Borrower, threatened against the Borrower or any Subsidiary; and (c) no union
representation question existing with respect to the employees of the Borrower
or any Subsidiary and no union organizing activities are taking place with
respect to any thereof. Immediately upon Borrower becoming aware of the
occurrence of any of the events referenced in clauses (a), (b) or (c) above,
Borrower agrees to notify the Agent of same in writing.
3.25. YEAR 2000 COMPLIANCE.
- ---------------------------
The Borrower and each Subsidiary has (i) initiated a review and
assessment of all areas within its business and operations (including those
affected by suppliers, vendors and customers) that could be adversely affected
by the "Year 2000 Problem" (that is, the risk that computer applications used by
the Borrower and each Subsidiary (or suppliers, vendors and customers) may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and any date after December 31, 1999), (ii) developed a
plan and timeline for addressing the Year 2000 Problem on a timely basis, and
(iii) to date, implemented that plan in accordance with that timetable. Based on
the foregoing, the Borrower believes that all computer applications that are
material to its business and operations are reasonably expected on a timely
basis to be able to perform properly date-sensitive functions for all dates
before and after January 1, 2000 (that is, be "Year 2000 compliant"), except to
the extent that a failure to do so could not reasonably be expected to have a
Material Adverse Effect.
ARTICLE IV: CONDITIONS
----------------------
4.01. CONDITIONS TO ENTERING INTO AGREEMENT.
- --------------------------------------------
The obligation of each Lender to enter into this Agreement and to make
Loans, if any, on the date hereof is subject to the satisfaction of the
following conditions precedent, in addition to, if the Lenders make any Loans on
the date hereof, the conditions precedent set forth in SECTION 4.02 hereof:
(a) AGREEMENT; NOTES. The Agent shall have received an executed
counterpart of this Agreement for each Lender, duly executed by the Borrower,
and executed Revolving Credit Notes, Term Loan A Note(s) and Term Loan B Note(s)
conforming to the requirements hereof, duly executed on behalf of the Borrower.
(b) GUARANTEES. The Agent shall have received an original Guaranty, in
the form attached hereto as EXHIBIT E, executed by each Guarantor.
(c) SECURITY DOCUMENTS. The Agent shall have received an executed
counterpart of each Security Document for each Lender and for each governmental
office in which the same may be recorded or filed, if any, duly executed, and
accompanied by all immediately available funds and all certificates, affidavits
and other documents necessary to record or file the same.
(d) CORPORATE PROCEEDINGS. The Agent shall have received, with a copy
for each Lender, certificates by the Secretary or Assistant Secretary of
Borrower and each Guarantor,
43
<PAGE> 48
dated as of or prior to the date hereof as to (i) true copies of the articles of
incorporation and by-laws (or other constituent documents) of Borrower and each
Guarantor in effect on such date (which, in the case of articles of
incorporation or other constituent documents filed or required to be filed with
the Secretary of State or other Governmental Authority in its jurisdiction of
incorporation, shall be certified to be true, correct and complete by such
Secretary or Assistant Secretary of Borrower and each Guarantor as of the date
hereof), (ii) true copies of all corporate action taken by Borrower and each
Guarantor relative to this Agreement and the other Loan Documents and (iii) the
incumbency and signature of the respective officers of Borrower and each
Guarantor executing this Agreement and the other Loan Documents, together with
satisfactory evidence of the incumbency of such Secretary or Assistant
Secretary. The Agent shall have received, with a copy for each Lender,
certificates from the appropriate Secretaries of State or other applicable
Governmental Authorities dated not more than sixty (60) days before the date
hereof showing the good standing of Borrower and each Guarantor in its state of
incorporation and each state in which Borrower or Guarantor does business.
(e) INSURANCE. The Agent shall have received, with a copy for each
Lender, a certificate setting forth all policies of insurance in force with
respect to Borrower and each of the Guarantors, issued by an insurance agent
reasonably acceptable to the Agent and satisfactory in form and substance to the
Agent.
(f) FINANCIAL STATEMENTS. The Agent shall have received, with a
counterpart for each Lender, copies of the consolidated financial statements,
and, at the request of the Agent or any Lender, consolidating financial
statements referred to in SECTIONS 3.06 and 3.07.
(g) LEGAL OPINION OF COUNSEL TO BORROWER AND GUARANTORS. The Agent
shall have received, with an executed counterpart for each Lender, an opinion
addressed to the Agent and each Lender, dated the date hereof, of Harter,
Secrest & Emery, LLP, Rochester, New York, counsel to the Borrower and the
Guarantors, as to such matters as may be requested by the Agent and in form and
substance satisfactory to the Agent and its counsel.
(h) FEES, EXPENSES, ETC. All fees and other compensation to be paid to
the Agent or the Lenders pursuant hereto or pursuant to any other written
agreement on or prior to the date hereof shall have been paid or received, and
all invoiced expenses incurred by the Agent pursuant hereto shall have been
paid.
(i) ADDITIONAL MATTERS. The Agent shall have received such other
certificates, opinions, documents and instruments as may be requested by the
Agent or any Lender. All corporate and other proceedings, and all documents,
instruments and other matters in connection with the transactions contemplated
by this Agreement and the other Loan Documents shall be satisfactory in form and
substance to the Agent and each Lender.
4.02. CONDITIONS TO ALL LOANS.
- ------------------------------
The obligation of each Lender to make any Loan or of the Agent to issue
any Letters of Credit is subject to satisfaction (in addition to the conditions
set forth in SECTION 2.06 hereof) of the following further conditions precedent:
44
<PAGE> 49
(a) NOTICE. Appropriate notice of such Loan or of such Letter of Credit
shall have been given by the Borrower as provided in ARTICLE II hereof.
(b) [Reserved]
(c) REPRESENTATIONS AND WARRANTIES. Except with respect to the
representations and warranties expressly deemed made as of an earlier date, each
of the representations and warranties made by the Borrower with respect to
itself and each Subsidiary in ARTICLE III hereof shall be true and correct in
all material respects on and as of such date as if made on and as of such date,
both before and after giving effect to the Loans requested to be made on such
date or both before and after the issuance of the Letter of Credit requested to
be issued on such date.
(d) GUARANTEES AND LOAN DOCUMENTS. The Guaranty and the other material
Loan Documents remain in full force and effect.
(e) NO DEFAULTS. No Event of Default or Potential Default shall have
occurred and be continuing on such date or after giving effect to the Loans
requested to be made on such date or after the issuance of the Letter of Credit
requested to be issued on such date.
(f) NO VIOLATIONS OF LAW, ETC. Neither the making nor use of the Loans
nor the issuance of the Letter of Credit shall cause the Borrower to violate or
conflict with any Law in any material respect.
(g) NO MATERIAL ADVERSE CHANGE. There shall not have occurred a
material adverse change in the business, operations, assets or condition
(financial or otherwise) of Borrower and any Guarantor since the date of the
most recent audited financial statements delivered to the Agent. There shall not
have occurred any other event, act or condition which is likely to have a
Material Adverse Effect.
Each request by the Borrower for any Loan shall constitute a representation and
warranty by the Borrower that the conditions set forth in this SECTION 4.02 have
been satisfied in all material respects as of the date of such request. Failure
of the Agent to receive notice from the Borrower to the contrary before such
Loan is made shall constitute a further representation and warranty by the
Borrower that the conditions referred to in this SECTION 4.02 have been
satisfied in all material respects as of the date such Loan is made.
ARTICLE V: AFFIRMATIVE COVENANTS
--------------------------------
The Borrower hereby covenants to the Lenders as follows:
5.01. BASIC REPORTING REQUIREMENTS.
- -----------------------------------
(a) ANNUAL AUDIT REPORTS. As soon as practicable, and in any event
within ninety (90) days after the close of each fiscal year of the Borrower, the
Borrower shall furnish to the Agent, with a copy for each Lender, consolidated
statements of income, cash flows and changes in stockholders' equity of Borrower
and its consolidated Subsidiaries for such fiscal year and a consolidated
balance sheet of Borrower and its consolidated Subsidiaries as of the close of
such fiscal year, and notes to each, all in reasonable detail, setting forth in
comparative form the
45
<PAGE> 50
corresponding figures for the preceding fiscal year. Such financial statements
shall be accompanied by an opinion of independent certified public accountants
selected by Borrower and approved by the Bank. Such opinion shall be free of
exceptions or qualifications. Such opinion in any event shall contain a written
statement of such accountants substantially to the effect that (i) such
accountants examined such financial statements in accordance with generally
accepted auditing standards and accordingly made such tests of accounting
records and such other auditing procedures such accountants considered necessary
in the circumstances and (ii) in the opinion of such accountants such financial
statements present fairly in all material respects the consolidated financial
position of Borrower and its consolidated Subsidiaries (including, but not
limited to, the Borrower) as of the end of such fiscal year and the results of
their operations and their cash flows and changes in stockholders' equity for
such fiscal year, in conformity with GAAP.
(b) ANNUAL UNAUDITED BALANCE SHEET AND INCOME STATEMENT. As soon as
practicable, and in any event within ninety (90) days after the close of each
fiscal year of the Borrower, the Borrower shall furnish to the Agent, with a
copy for each Lender, an unaudited consolidating balance sheet and statements of
income of Borrower and its consolidated Subsidiaries as of the close of such
fiscal year, all in reasonable detail.. Such balance sheet and statement of
income shall be certified by the chief financial officer of Borrower as
presenting fairly the financial position of the Borrower and its consolidated
Subsidiaries as of the end of such fiscal year, in conformity with GAAP
(omitting substantially all disclosures), subject to normal and recurring
year-end audit adjustments.
(c) QUARTERLY REPORTS. As soon as practicable, and in any event within
forty-five (45) days after the close of each of the first three fiscal quarters
of each fiscal year of the Borrower, the Borrower shall furnish to the Agent,
with a copy for each Lender, unaudited consolidated statements of cash flows and
changes in stockholders' equity of Borrower and its consolidated Subsidiaries
for such fiscal quarter, and for the period from the beginning of such fiscal
year to the end of such fiscal quarter and an unaudited consolidating balance
sheet and statements of income of Borrower and its consolidated Subsidiaries as
of the close of such fiscal quarter, all in reasonable detail and as to the
consolidated statements, setting forth in comparative form the corresponding
figures for the same periods during the preceding fiscal year (except for the
consolidated balance sheet, which shall set forth in comparative form the
corresponding balance sheet as of the prior fiscal year end). Such financial
statements shall be certified by the chief financial officer of Borrower as
presenting fairly the financial position of Borrower and its consolidated
Subsidiaries as of the end of such fiscal quarter and the results of their
operations and their cash flows and changes in stockholders' equity for such
fiscal quarter, in conformity with GAAP (omitting substantially all
disclosures), subject to normal and recurring year-end audit adjustments.
(d) QUARTERLY COMPLIANCE CERTIFICATES. The Borrower shall deliver to
the Agent, with a copy for each Lender, concurrently with the delivery of the
financial statements referred to in subsection (a) and (b) of this SECTION 5.01,
a certificate of the chief financial officer of Borrower (i) stating that, to
the knowledge of such officer after reasonable investigation, no Event of
Default or Potential Default has occurred and is continuing or, if any such
Event of Default or Potential Default has occurred and is continuing, stating
the nature and period of existence thereof and the steps which Borrower is
taking to rectify the same and (ii) stating in reasonable detail the information
and calculations necessary to establish compliance with the provisions of
SECTION 6.01 hereof.
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<PAGE> 51
(e) PROJECTIONS. The Borrower will furnish to the Agent and each Lender
within one hundred twenty (120) days after each respective fiscal year end each
upcoming year's consolidated and consolidating balance sheet and operating
income statement projections, together with annual consolidated projected cash
flow, demonstrating the projected financial condition and results of operations
of the Borrower and its consolidated Subsidiaries for the period commencing
April 1 of that fiscal year and at least one (1) fiscal year forward, which
projections will be accompanied by a written statement of the assumptions and
estimates underlying such projections. Such projections are to be prepared on
the basis of such assumptions and estimates. Such projections, assumptions and
estimates, as of the date of preparation thereof shall be made in good faith,
consistent with the Loan Documents, and shall represent the Borrower's best
judgment as to such matters at the time they are written. Nothing in this
SECTION 5.01(E) shall constitute a representation or warranty that such
financial performance of projections or results of operations will be achieved.
(f) CERTAIN OTHER REPORTS AND INFORMATION. Promptly upon their becoming
available to the Borrower, the Borrower shall deliver to the Agent, with a copy
for each Lender, a copy of (i) all regular or special reports, registration
statements and amendments to the foregoing, financial statements and other
information distributed by the Borrower, or any Subsidiary, to the financial
community generally or filed with the Securities and Exchange Commission or any
securities exchange or any other governmental or regulatory body, agency,
tribunal or commission, and (ii) all accountants' management letters pertaining
to, all other reports submitted by accountants in connection with any audit of,
and all other reports from accountants with respect to, the Borrower, or any of
its Subsidiaries, (iii) all other information distributed by the Borrower, or
any Subsidiary, and (iv) all proxy statements and other information distributed
by the Borrower to its stockholders.
(f) FURTHER INFORMATION. Borrower will promptly furnish to the Agent or
Lender, as applicable, such other information in such form as the Agent or any
Lender may reasonably request from time to time.
(g) NOTICE OF CERTAIN EVENTS. Promptly upon becoming aware of any of
the following, Borrower shall give the Agent notice thereof, together with a
written statement of any Responsible Officer of Borrower setting forth the
details thereof and any action with respect thereto taken or proposed to be
taken by Borrower:
(i) Any Event of Default or Potential Default.
(ii) Any change in the business, operations or condition (financial
or otherwise) or prospects of the Borrower which is likely to have a Material
Adverse Effect.
(iii) Except as set forth on SCHEDULE 3.12, any pending or
threatened action, suit, proceeding or investigation by or before any
Governmental Authority against or affecting Borrower, except for matters that if
adversely decided, individually or in the aggregate, could not have a Material
Adverse Effect.
(iv) Any material violation, breach or default by Borrower of or
under any agreement or instrument material to the business, operations or
condition (financial or otherwise) or prospects of Borrower and its Affiliates
or Subsidiaries taken as a whole.
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<PAGE> 52
(v) Any Pension-Related Event. Such notice shall be accompanied by:
(A) a copy of any notice, request, return, petition or other document received
by Borrower or any Controlled Group Member from any Person, or which has been or
is to be filed with or provided to any Person (including without limitation the
Internal Revenue Service, PBGC or any Plan participant, beneficiary, alternate
payee or employer representative), in connection with such Pension-Related
Event, and (B) in the case of any Pension-Related Event with respect to a Plan,
the most recent Annual Report (5500 Series), with attachments thereto, and the
most recent actuarial valuation report, for such Plan.
(vi) Any Environmental Claim pending or threatened against Borrower
or any of its Affiliates or Subsidiaries, or any past or present acts, omission,
events or circumstances (including but not limited to any dumping, leaching,
deposition, removal, abandonment, escape, emission, discharge or release of any
Environmental Concern Material) at, on or under any facility or property now or
previously owned, operated or leased by Borrower or any of its Affiliates or
Subsidiaries, that could form the basis of such Environmental Claim, which
Environmental Claim if adversely resolved, individually or in the aggregate with
all other pending Environmental Claims, could have a Material Adverse Effect.
(vii) Any amendments to the articles of incorporation or by-laws of
Borrower or any Subsidiary, together with a certified copy of such amendment.
(h) INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. Borrower
shall keep proper books of records and account in which full, true and correct
entries in conformity with GAAP and all requirements of law in all material
respects shall be made of all dealings and transactions in relation to its
business and activities; and at any reasonable time and as often as may
reasonably be desired (but, absent an Event of Default, not more frequently than
once for each calendar year) permit representatives of any Lender to visit and
inspect any of its properties and examine and make abstracts from any of its
books and records and to discuss the business, operations, properties and
financial and other condition of Borrower and the Subsidiaries with Responsible
Officers of Borrower and the Subsidiaries and with its independent certified
public accountants.
If requested by the Agent, the Borrower shall issue, and shall cause
any Subsidiary to issue, written instructions to their respective independent
certified public accountants authorizing them to communicate with the Agent and
to release to the Agent whatever financial information concerning the Borrower
or any Subsidiary that the Agent may request. Upon the occurrence of an Event of
Default, effective upon the Agent's request, the Borrower hereby irrevocably
authorizes and directs, and shall cause any Subsidiary to authorize and direct,
all auditors, accountants, or other third parties to deliver to the Agent, at
the Borrower's expense, copies of the Borrower's or Subsidiary's financial
statements, papers related thereto, and other accounting records of any nature
in their possession, and to disclose to the Bank any information they may have
regarding each of the Borrower's or Subsidiary's business affairs and financial
condition.
5.02. INSURANCE.
- ----------------
Borrower shall, and shall cause each of the Subsidiaries to (a)
maintain with financially sound and reputable insurers insurance with respect to
its properties and business and against such liabilities, casualties and
contingencies and of such types and in such amounts as is
48
<PAGE> 53
customary in the case of corporations engaged in the same or similar businesses
or having similar properties similarly situated, (b) provide that such insurance
cannot terminate, expire, be canceled or amended in any material respect without
thirty (30) days prior written notice to the Agent, (c) furnish to the Agent
from time to time upon request the policies under which such insurance is
issued, certificates of insurance and such other information relating to such
insurance as the Agent may reasonably request, and (d) provide such other
insurance and endorsements as are required by this Agreement and the other Loan
Documents.
5.03. PAYMENT OF TAXES AND OTHER POTENTIAL CHARGES AND PRIORITY CLAIMS.
- -----------------------------------------------------------------------
Borrower shall, and shall cause each Subsidiary to, pay or discharge on
or prior to the date on which penalties attach thereto, all taxes, assessments
and other governmental charges imposed upon it or any of its properties, unless
contested in good faith by Borrower or such Subsidiary or which would not
otherwise have a Material Adverse Effect.
5.04. PRESERVATION OF CORPORATE STATUS.
- ---------------------------------------
Borrower shall, and shall cause each of the Subsidiaries to, maintain
its status as a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and to be duly
qualified to do business as a foreign corporation and in good standing in all
jurisdictions in which the ownership of its material properties or the nature of
its material businesses or both make such qualification necessary or advisable.
5.05. GOVERNMENTAL APPROVALS AND FILINGS.
- -----------------------------------------
Borrower shall, and shall cause each Subsidiary to, keep and maintain
in full force and effect all Governmental Actions necessary for the operation of
its business and the delivery and performance of any Loan Document.
5.06. MAINTENANCE OF PROPERTIES.
- --------------------------------
Borrower shall, and shall cause each Subsidiary to, maintain or cause
to be maintained the properties then owned, leased or otherwise possessed by it
in such repair, working order and conditions as is necessary for conduct of its
business and shall make or cause to be made all needful and proper repairs,
renewals, replacements and improvements thereto as is necessary for the conduct
of its business in the ordinary course.
5.07. AVOIDANCE OF OTHER CONFLICTS.
- -----------------------------------
The Borrower shall not, and shall not permit any of the Subsidiaries
to, violate or conflict with, be in violation of or conflict with, or be or
remain subject to any liability (contingent or otherwise) on account of any
violation or conflict with:
(a) any Law,
(b) its articles of incorporation or by-laws (or other constituent
documents), or
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<PAGE> 54
(c) any agreement or instrument to which it is party or by which any of
them is a party or by which any of them or any of their respective properties
(now owned or hereafter acquired) may be subject or bound,
which such conflict, violation or liability is reasonably likely to have a
Material Adverse Effect.
5.08. FINANCIAL ACCOUNTING PRACTICES.
- -------------------------------------
Borrower shall, and shall cause each Subsidiary to, make and keep
books, records and accounts which, in reasonable detail, accurately and fairly
reflect its transactions and dispositions of its assets and maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(a) transactions are generally executed in accordance with management's general
or specific authorization, (b) transactions are recorded as necessary (i) to
permit preparation of financial statements in conformity with GAAP and (ii) to
maintain accountability for assets, (c) access to assets is generally permitted
only in accordance with management's general or specific authorization and (d)
the recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
5.09. USE OF PROCEEDS.
- ----------------------
The Borrower shall apply the proceeds of all Loans hereunder only to
(i) repay in full any amounts owing under the Existing Indebtedness and (ii)
finance the ongoing working capital requirements of the Borrower with proceeds
solely of the Revolving Credit Loans. Borrower shall not use the proceeds of any
Loans hereunder directly or indirectly for any unlawful purpose, in any manner
inconsistent with SECTION 3.22 hereof, or inconsistent with any other provision
of any Loan Document.
5.10. CONTINUATION OF OR CHANGE IN BUSINESS.
- --------------------------------------------
Borrower and each of the Subsidiaries shall engage in their respective
businesses substantially as conducted and operated during the present and
preceding fiscal year, and such Borrower shall not, and shall not permit any
Subsidiary to, engage in any other business without prior written notice to the
Agent.
5.11. CONSOLIDATED TAX RETURN.
- ------------------------------
The Borrower shall not, and shall not permit any Subsidiary to, file or
consent to the filing of any consolidated income tax return which is
consolidated with any Person other than the Borrower and its Subsidiaries.
5.12. FISCAL YEAR.
- ------------------
Borrower shall not, and shall not permit any Subsidiary to, change its
fiscal year without the prior written consent of the Agent.
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<PAGE> 55
5.13. NEW SUBSIDIARIES.
- -----------------------
Borrower shall give notice to the Agent upon the formation or
acquisition of any new, direct or indirect, Subsidiary of Borrower and, with
respect to any such Subsidiary formed under the laws of the United States of
America or any state, territory, mandate, district or commonwealth thereof,
shall immediately take all steps required to effect a valid Guaranty by such
Subsidiary. Upon the formation or acquisition of any new, direct or indirect,
Subsidiary of Borrower which is formed under the laws of any country other than
the United States, the Borrower shall immediately execute and deliver to the
Agent a valid Pledge Agreement whereby Borrower, or the Pledgor, shall pledge at
least sixty-six and one-half percent (66 1/2%) of all the issued and outstanding
capital stock of such Subsidiary (or of the Borrower's or pledgor's interest in
and to such Subsidiary, however characterized), together with any and all other
financing statements, stock powers, stock certificates and other documents and
instruments necessary to create and perfect a valid first priority security
interest in and to such stock or security.
5.14. YEAR 2000 COMPLIANCE.
- ---------------------------
The Borrower and each Guarantor shall promptly notify the Agent in the
event the Borrower or any Guarantor discovers or determines that any computer
application (including those of its respective suppliers, vendors and customers)
that is material to its respective business and operations will not be Year 2000
compliant, except to the extent that such failure could not reasonably be
expected to have a Material Adverse Effect.
ARTICLE VI: NEGATIVE COVENANTS
------------------------------
So long as any loans are outstanding hereunder or the Lender has any
commitment to lend, the Borrower hereby covenants to the Lenders as follows:
6.01. FINANCIAL COVENANTS.
- --------------------------
During the term hereof, the Borrower shall not:
(a) For the fiscal quarters ending June 30, 1998, September 30, 1998,
and December 31, 1998 permit the Fixed Charge Coverage Ratio (measured as of the
period of the four (4) then most recently completed fiscal quarters of the
Borrower) to be less than 1.00 to 1.00, and thereafter, permit the Fixed Charge
Coverage Ratio (measured as of the period of the four (4) then most recently
completed fiscal quarters of the Borrower) to be at any time less than 1.25 to
1.00.
(b) Permit the consolidated Net Worth of Borrower and its Subsidiaries
to be less than the sum of $14,700,000 by March 31, 1999, $16,200,000 by March
31, 2000 and $18,200,000 by March 31, 2001 and at any time thereafter.
(c) Permit the ratio of consolidated Funded Debt of Borrower and its
Subsidiaries to the consolidated EBITDA of Borrower and its Subsidiaries,
calculated at the same point in time, and measured as of the period of the four
(4) then most recently completed fiscal quarters of the Borrower to be greater
than 4.50 to 1.00 from the date hereof to and including March 31, 1999;
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<PAGE> 56
greater than 3.50 to 1.00 from April 1, 1999 to and including March 31, 2000;
and greater than 2.50 to 1.00 from April 1, 2000 and at all times thereafter.
6.02. LIENS.
- ------------
Borrower shall not, and shall not permit any Subsidiary to, at any time
create, incur, assume or suffer to exist any Lien on any of its property (now
owned or hereafter acquired), whether real or personal, or agree, become or
remain liable (contingently or otherwise) to do any of the foregoing, except for
the following ("Permitted Liens"):
(a) Liens existing on the date hereof securing obligations existing on
the date hereof, as such Liens and obligations are listed in SCHEDULE 6.02
hereto;
(b) Liens arising from taxes, assessments, charges or claims described
in SECTION 5.03 hereof that are not yet due or that remain payable without
penalty or to the extent permitted to remain unpaid under SECTION 5.03;
(c) Deposits or pledges of cash or securities in the ordinary course of
business to secure (i) workmen's compensation, unemployment insurance or other
social security obligations, (ii) performance of bids, tenders, trade contracts
(other than for payment of money) or leases, (iii) stay, surety or appeal bonds,
or (iv) other obligations of a like nature incurred in the ordinary course of
business;
(d) Zoning restrictions, easements, minor restrictions on the use of
real property, minor irregularities in title thereto and other minor Liens that
do not secure the payment of money or the performance of an obligation and that
do not in the aggregate materially detract from the value of a property or asset
to, or materially impair its use in the business of, Borrower or such Guarantor;
(e) Liens evidenced by the Security Documents;
(f) Liens imposed by law, such as Liens of landlords, warehouses,
mechanics and materialmen arising in the ordinary course of business for sums
not yet due, or which are discharged of record (by payment or bonding, or
otherwise);
(g) Any judgment Lien which does not exceed, in any single instance,
$100,000 or, when added to the amounts of any other judgment Lien then
outstanding, in the aggregate $250,000, unless such judgment or judgments shall
not, within sixty (60) days after the entry thereof have been discharged or
execution thereof stayed pending appeal, or shall not have been discharged
within sixty (60) days after expiration of such stay;
(h) Lien filings for informational purposes only with respect to
equipment leases entered into in the ordinary course of business; and
(i) Ordinary deposits made to utility companies, governmental or
quasi-governmental agencies for or in connection with the provision of services.
Notwithstanding anything to the contrary in the foregoing, "Permitted Lien"
shall in no event include (i) any Lien imposed by, or required to be granted
pursuant to, ERISA or any
52
<PAGE> 57
Environmental Law, (ii) any Lien on any inventory of Borrower or any Subsidiary,
or (iii) any Lien on any distribution licenses or distribution contracts issued
to and held by, or entered into by, Borrower or any Subsidiary.
6.03. INDEBTEDNESS.
- -------------------
The Borrower shall not, and shall not permit any Subsidiary to, at any
time create, incur, assume or suffer to exist any Indebtedness, or agree, become
or remain liable (contingently or otherwise) to do any of the foregoing, except:
(a) Indebtedness incurred hereunder;
(b) Existing Indebtedness outstanding on the date hereof except such
Indebtedness which is required to be repaid hereunder;
(c) Trade Indebtedness incurred in the ordinary course of business;
(d) Indebtedness of the Subsidiaries outstanding as of the Closing
Date;
(e) Subordinated Debt; and
(f) Any refinancing of any of the foregoing Indebtedness set forth in
subsections (b) through (e), provided that the principal amount of any such
refinancing does not exceed the stated maximum principal amount being
refinanced, and that such refinancing does not increase the interest rate
thereof.
6.04. LOANS, ADVANCES AND INVESTMENTS.
- --------------------------------------
The Borrower shall not, and shall not permit any Subsidiary to, at any
time make or suffer to exist or remain outstanding any loan or advance to, or
purchase, acquire or own (beneficially or of record) any stock, bonds, notes or
securities of, or any partnership interest (whether general or limited) in, or
any other interest in, or make any capital contribution to or other investment
in, any other Person, or agree to do any of the foregoing, unless such agreement
is expressly contingent upon the Agent's approval, except:
(a) Loans and investments existing on the date hereof and listed in
SCHEDULE 6.04 hereof (and extensions, renewals and refinancings thereof on terms
no less favorable than those existing immediately before such extension, renewal
or refinancing);
(b) Receivables owing to Borrower or any Subsidiary arising from sales
of inventory or services under usual and customary terms in the ordinary course
of business, and loans and advances extended by Borrower or any Subsidiary to
subcontractors or suppliers under usual and customary terms in the ordinary
course of business;
(c) Advances to officers and employees of Borrower and any Subsidiary
to meet expenses incurred by such officers and employees in the ordinary course
of business and in amounts at any time outstanding not exceeding $10,000 to any
one officer or employee and $50,000 in the aggregate; and
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<PAGE> 58
(d) Loans from a Guarantor or the Borrower to the Borrower or to
another Guarantor which loans shall, without further notice or demand, be
subordinated to the Obligations upon terms and conditions satisfactory to the
Agent in its sole discretion.
6.05. RESTRICTED PAYMENTS.
- --------------------------
The Borrower will not, and will not permit any Subsidiary, to directly
or indirectly, declare, order, pay, make or set apart any sum or property for
any Restricted Payment, except that the Borrower may make Restricted Payments to
the extent that, immediately after giving effect to such proposed action:
(x) no Potential Default or Event of Default shall exist or
would exist; and
(y) the Borrower could incur at least $1 of additional
indebtedness.
6.06. LIMITATION ON OTHER RESTRICTIONS ON AMENDMENT OF THE LOAN DOCUMENTS, ETC.
- -------------------------------------------------------------------------------
The Borrower shall not, and shall not permit any Subsidiary to, enter
into, become or remain subject to any agreement or instrument to which the
Borrower, or such Subsidiary is a party or by which either of them or any of
their respective properties (now owned or hereafter acquired) may be subject or
bound that would prohibit or require the consent of any Person to any amendment,
modification or supplement to any of the Loan Documents, except for the Loan
Documents themselves.
6.07. LEASE OBLIGATIONS.
- ------------------------
Borrower shall not, and shall not permit any Subsidiary to, at any time
create, incur, assume or suffer to exist obligations on any leases, whether
capitalized or operating, that in the aggregate obligate the Borrower together
with the Subsidiaries to make payments in excess of the Permitted Lease Payments
during any fiscal year.
6.08. DISPOSITIONS OF PROPERTIES.
- ---------------------------------
The Borrower shall not, and shall not permit any Subsidiary to, sell,
transfer, discount, or otherwise voluntarily dispose of any assets other than
(i) in the ordinary course of business, provided the Borrower or such
Subsidiary, as the case may be, receives full and adequate consideration in the
reasonable judgment of such Borrower or such Subsidiary, as the case may be, in
exchange for such assets sold, and (ii) assets sold for full and adequate
consideration in the reasonable judgment of such Borrower or such Subsidiary, as
the case may be, which Borrower or such Subsidiary, as the case may be, has
determined to be worn out, obsolete or not useful in the ordinary course of its
business.
6.09. ISSUANCE OF SUBSIDIARY STOCK.
- -----------------------------------
The Borrower shall not permit any Subsidiary to issue, sell, otherwise
dispose or permit to remain outstanding, voluntarily or involuntarily, any
shares of such Subsidiary's capital stock, or any options, warrants, calls,
subscriptions, conversion rights, exchange rights, preemptive
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<PAGE> 59
rights or other rights, agreements or arrangements (contingent or otherwise)
which may in any circumstances now or hereafter obligate any Subsidiary to issue
any shares of its capital stock, except:
(a) Shares of capital stock outstanding on the date hereof and set
forth on SCHEDULE 6.09 hereof; or
(b) Options, warrants, calls, subscriptions, conversion rights,
exchange rights, preemptive rights or other rights, agreements or arrangements
outstanding on the date hereof and set forth on SCHEDULE 6.09 hereof; and shares
of capital stock issued from time to time pursuant to and in accordance with the
terms of the foregoing.
6.10. DEALINGS WITH AFFILIATES.
- -------------------------------
The Borrower shall not, and shall not permit any Subsidiary to, enter
into or carry out any transaction with (including, without limitation, purchase
or lease property or services from, sell or lease property or services to, loan
or advance to, or enter into, suffer to remain in existence or amend any
contract, agreement or arrangement with) any Affiliate of the Borrower, directly
or indirectly, or agree, become or remain liable (contingently or otherwise) to
do any of the foregoing, except:
(a) Existence and performance of contracts, agreements and arrangements
in existence as of the date hereof and set forth in SCHEDULE 6.10 hereof, as any
of the same may be amended from time to time;
(b) Directors, officers and employees of Borrower and the Subsidiaries
may be compensated for services rendered in such capacity to Borrower or such
Subsidiary, provided that such compensation is in good faith and on terms no
less favorable to Borrower or such Subsidiary than those that could have been
obtained in a comparable transaction on an arm's-length basis from an unrelated
person; and
(c) Other transactions with Affiliates in good faith and on terms no
less favorable to the Borrower, or such Subsidiary than those that could have
been obtained in a comparable transaction on an arm's-length basis from an
unrelated Person.
6.11. LIMITATIONS ON MODIFICATION OF CERTAIN AGREEMENTS AND INSTRUMENTS.
- ------------------------------------------------------------------------
The Borrower shall not, and shall not permit any Subsidiary to, amend,
modify or supplement the provisions of their respective articles of
incorporation or by-laws in any manner which would or would reasonably likely
have a Material Adverse Effect.
6.12. LIMITATION ON OTHER RESTRICTIONS ON DIVIDENDS BY SUBSIDIARIES, ETC.
- -------------------------------------------------------------------------
The Borrower shall not permit any Subsidiary to be or become subject to
any prohibition of any nature by the terms thereof (whether arising by operation
of Law, by agreement, by its articles of incorporation, By-Laws or other
constituent documents of such Subsidiary, or otherwise) on the right of such
Subsidiary from time to time to (w) declare and pay Stock Payments with respect
to capital stock owned by the Borrower, or any Subsidiary, (x) pay any
indebtedness, obligations or liabilities owing by such Subsidiary under the Loan
Documents or
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from time to time owed to the Borrower, or any Subsidiary, (y) make loans or
advances to the Borrower, or any Subsidiary, or (z) transfer any collateral
under any Loan Documents owned by such Guarantor to the Borrower, or any other
Subsidiary, except:
(a) Restrictions pursuant to the Loan Documents;
(b) Legal restrictions of general applicability under the corporation
law under which such Subsidiary is incorporated, and fraudulent conveyance or
similar laws or general applicability for the benefit of creditors of such
Subsidiary generally;
(c) With respect to clause (z) above: (i) nonassignment provisions of
any executory contract or of any lease by the Borrower, or such Subsidiary as
lessee, and (ii) restrictions on transfer of property subject to a Permitted
Lien for the benefit of the holder of such Permitted Lien; and
(d) Any restriction contained in an agreement or instrument applicable
to a Guarantor acquired by the Borrower, or a Subsidiary after the date hereof,
which restriction was not entered into in connection with or in contemplation of
such acquisition and which restriction is not applicable to any Person, property
or assets other than such acquired Guarantor and its property and assets.
6.13. ACQUISITION.
- ------------------
The Borrower or any Subsidiary shall not, without the prior written
consent of the Agent (which consent may contain such conditions and requirements
thereto as the Agent may in its sole discretion require), consolidate, acquire
or merge into or with any other organization, or division thereof, or any other
business or product line or acquire substantially all of the assets thereof. In
addition, the Borrower or any Subsidiary will not dissolve, wind up its affairs,
or sell, assign, lease, or otherwise dispose of (whether in one transaction or a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to any Person.
ARTICLE VII: DEFAULTS
---------------------
7.01. EVENTS OF DEFAULT.
- ------------------------
An Event of Default shall mean the occurrence or existence of one or
more of the following events or conditions (for any reason, whether voluntary,
involuntary or effected or required by Law):
(a) The Borrower shall fail to pay when due principal of any Loan.
(b) The Borrower shall fail to pay when due interest on any Loan, and
such failure shall continue for fifteen (15) days thereafter, or the Borrower or
any Guarantor shall fail to pay when due any fees, indemnity or expenses, or any
other amount due hereunder or under any other Loan Document and, with respect
solely to the obligation to pay any fees, indemnity or expenses, such failure
shall continue unremedied for fifteen (15) days after notice.
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<PAGE> 61
(c) Any representation or warranty made in writing or deemed to be made
by operation of the last two sentences of SECTION 4.02 hereof by the Borrower or
any Guarantor in or pursuant to or in connection with any Loan Document, or any
written statement made by the Borrower or any Guarantor in any financial
statement, certificate, report, exhibit or document furnished by the Borrower or
any Guarantor to the Lender pursuant to or in connection with any Loan Document,
shall prove to have been false or misleading in any material respect as of the
time when made or deemed made (including by omission of material information
necessary to make such representation, warranty or statement not misleading in
any material respect); PROVIDED that if such misstatement or falsehood shall be
capable of being cured during the period ("Cure Period") ending on the date
which is ten (10) days following the earlier to occur of: (i) receipt by the
Borrower of written notice of such incorrect or false representation, warranty
or statement; or (ii) actual knowledge by a Responsible Officer of Borrower of
such incorrect or false representation, warranty or statement, such falsehood or
misstatement shall not constitute an Event of Default until the end of the Cure
Period if the Borrower shall be diligently proceeding during the Cure Period to
correct such misstatement or falsehood.
(d) The Borrower or any Subsidiary shall fail to perform or observe any
other covenant in any Loan Document and such failure shall continue unremedied
for ten (10) days after written notice to the Borrower.
(e) (i) If the Borrower or any Subsidiary shall: (A) default in the
payment of principal or interest on any obligation for borrowed money to the
Agent, any of the Lenders or any other Person (other than the Notes), or for the
deferred purchase price of property, beyond the period of grace, if any,
provided with respect thereto, or (B) default in the performance or observance
of any other term, condition, or agreement contained in any such obligation or
in any agreement relating thereto if the effect thereof is to cause, or permit
the holder or holders of such obligation (or a trustee on behalf of such holder
or holders) to cause, such obligation to become due prior to its stated
maturity; or
(ii) If the Borrower or any Subsidiary should default in the
payment of any sum due under, or in the performance or observance of any other
term, condition or agreement contained in any written lease between the Borrower
or any Subsidiary and any Lender if such Lender gives the Borrower or such
Subsidiary written notice of such default and demands payment of all sums due
thereunder.
(f) One or more judgments for the payment of money shall have been
entered against Borrower or any Subsidiary, and such judgment or judgments shall
have remained undischarged or unstayed for a period of sixty (60) consecutive
days.
(g) One or more writs or warrants of attachment, garnishment,
execution, distraint or similar process shall have been issued against Borrower
or any Subsidiary or any of their respective properties and shall have remained
undischarged and unstayed for a period of sixty (60) consecutive days.
(h) Borrower or any Subsidiary shall, or shall purport to, terminate,
repudiate, declare voidable or void or otherwise contest, any Loan Document or
any term or provision thereof or any obligation or liability of any party
thereunder, except as otherwise expressly provided in any Loan Document.
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<PAGE> 62
(i) The Required Lenders shall have determined in good faith (which
determination shall be conclusive) that an event or condition (including,
without limitation, one or more Pension Related Events other than those referred
to in subsection (a)(ii), (b) or (e) of the definition of "Pension Related
Event") has, individually or in the aggregate, occurred which has or could have
a Material Adverse Effect.
(j) Any one or more Pension-Related Events referred to in subsection
(a)(ii), (b) or (e) of the definition of "Pension-Related Event" shall have
occurred.
(k) Any one or more of the Guarantees shall fail to be in full force
and effect after delivery thereof.
(l) Any one or more of the events or conditions set forth in the
following clauses (i) or (ii) shall have occurred in respect of Borrower or any
Subsidiary, and the Required Lenders shall determine in good faith (which
determination shall be conclusive) that such events or conditions, individually
or in the aggregate, could have a Material Adverse Effect: (i) any past or
present violation of any Environmental Law by such Person, or (ii) existence of
any pending or threatened Environmental Claim against any such Person, or
existence of any past or present acts, omissions, events or circumstances that
will form the basis of any Environmental Claim against any such Person.
(m) A Change of Control shall have occurred.
(n) The Borrower, or any Subsidiary shall become insolvent or bankrupt
or make an assignment for the benefit of creditors or consent to the appointment
of a trustee or receiver; or a trustee or receiver shall be appointed for the
Borrower or such Subsidiary or for a substantial part of the property of the
Borrower, or such Subsidiary without its consent and shall not be dismissed
within a period of sixty (60) days; or bankruptcy, reorganization or insolvency
proceedings shall be instituted by or against the Borrower, or any Subsidiary
and, if instituted against the Borrower, or any Subsidiary, shall not be
dismissed for a period of sixty (60) days.
7.02. CONSEQUENCES OF AN EVENT OF DEFAULT.
- ------------------------------------------
(a) If an Event of Default specified in subsections (a) through (m) of
SECTION 7.01 hereof shall occur and be continuing or shall exist, then, in
addition to all other rights and remedies which the Agent or any Lender may have
hereunder or under any other Loan Document, at law, in equity or otherwise, the
Lenders shall be under no further obligation to make Revolving Credit Loans,
Term Loan A or Term Loan B hereunder, and the Agent may, and upon the written
requests of the Required Lenders shall, by notice to the Borrower, from time to
time do any or all of the following:
(i) Declare the Revolving Credit Commitments, the Term Loan A
Commitments and the Term Loan B Commitments terminated, whereupon such
Commitments will terminate and any fees hereunder shall be immediately due and
payable without presentment, demand, protest or further notice of any kind, all
of which are hereby waived, and an action therefor shall immediately accrue.
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<PAGE> 63
(ii) Declare the unpaid principal amount of the Revolving Credit
Loans, the Term Loan A and the Term Loan B, interest accrued thereon and all
other Obligations to be immediately due and payable by the Borrower without
presentment, demand, protest or further notice of any kind, all of which are
hereby waived, and an action or actions therefor shall immediately accrue.
(b) If an Event of Default specified in subsection (n) of SECTION 7.01
hereof shall occur or exist, then, in addition to all other rights and remedies
which the Agent or any Lender may have hereunder or under any other Loan
Document, at law, in equity or otherwise, the Revolving Credit Commitments, the
Term Loan A Commitments and the Term Loan B Commitments shall automatically
terminate and the Lenders shall be under no further obligation to make Revolving
Credit Loans, the Term Loan A and the Term Loan B, and the unpaid principal
amount of the Revolving Credit Loans, the Term Loan A and the Term Loan B,
interest accrued thereon and all other Obligations shall become immediately due
and payable by the Borrower without presentment, demand, protest or notice of
any kind, all of which are hereby waived, and an action therefor shall
immediately accrue.
7.03. LETTERS OF CREDIT.
- ------------------------
Upon the occurrence of an Event of Default and at the request of the
Agent, the Borrower shall immediately deposit with Agent, as security for the
Borrower's obligations to reimburse Agent and the Lenders for any then
outstanding Letters of Credit, cash equal to the sum of the aggregate undrawn
balance of any then outstanding Letters of Credit. Agent and the Lenders are
hereby authorized, at their option, to deduct any and all such amounts from any
deposit balances then owing by any Lender to or for the benefit or account of
the Borrower.
ARTICLE VIII: THE AGENT
-----------------------
8.01. APPOINTMENT.
- ------------------
Each Lender hereby irrevocably appoints KeyBank National Association to
act as Agent for such Lender under this Agreement and the other Loan Documents.
Each Lender hereby irrevocably authorizes the Agent to take such action on
behalf of such Lender under the provisions of this Agreement and the other Loan
Documents, and to exercise such powers and to perform such duties, as are
expressly delegated to or required of the Agent by the terms hereof or thereof,
together with such powers as are reasonably incidental thereto. KeyBank National
Association hereby agrees to act as Agent on behalf of the Lenders on the terms
and conditions set forth in this Agreement and the other Loan Documents, subject
to its right to resign as provided in SECTION 8.10 hereof. Each Lender hereby
irrevocably authorizes the Agent to execute and deliver each of the Loan
Documents and to accept delivery of such of the other Loan Documents as may not
require execution by the Agent. Each Lender agrees that the rights and remedies
granted to the Agent under the Loan Documents shall be exercised exclusively by
the Agent, and that no Lender shall have any right individually to exercise any
such right or remedy, except to the extent expressly provided herein or therein.
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8.02. GENERAL NATURE OF AGENT'S DUTIES.
- ---------------------------------------
Notwithstanding anything to the contrary elsewhere in this Agreement or
in any other Loan Document:
(a) The Agent shall have no duties or responsibilities except those
expressly set forth in this Agreement and the other Loan Documents, and no
implied duties or responsibilities on the part of the Agent shall be read into
this Agreement or any Loan Document or shall otherwise exist.
(b) The duties and responsibilities of the Agent under this Agreement
and the other Loan Documents shall be mechanical and administrative in nature,
and the Agent shall not have a fiduciary relationship in respect of any Lender.
(c) The Agent is and shall be solely the agent of the Lenders. The
Agent does not assume, and shall not at any time be deemed to have, any
relationship of agency or trust with or for, or any other duty or responsibility
to, the Borrower or any other Person.
(d) The Agent shall be under no obligation to take any action hereunder
or under any other Loan Document if the Agent believes in good faith that taking
such action may conflict with any Law or any provision of this Agreement or any
other Loan Document, or may require the Agent to qualify to do business in any
jurisdiction where it is not then so qualified.
8.03. EXERCISE OF POWERS.
- -------------------------
The Agent shall take any action of the type specified in this Agreement
or any other Loan Document as being within the Agent's rights, powers or
discretion in accordance with directions from the Required Lenders (or, to the
extent this Agreement or such Loan Document expressly requires the direction or
consent of some other Person or set of Persons, then instead in accordance with
the directions of such other Person or set of Persons). In the absence of such
directions, the Agent shall have the authority (but under no circumstances shall
be obligated), in its sole discretion, to take any such action, except to the
extent this Agreement or such Loan Document expressly requires the direction or
consent of the Required Lenders (or some other Person or set of Persons), in
which case the Agent shall not take such action absent such direction or
consent. Any action or inaction pursuant to such direction, discretion or
consent shall be binding on all the Lenders. The Agent shall not have any
liability to any Person as a result of (x) the Agent acting or refraining from
acting in accordance with the directions of the Required Lenders (or other
applicable Person or set of Persons), (y) the Agent refraining from acting in
the absence of instructions to act from the Required Lenders (or other
applicable Person or set of Persons), whether or not the Agent has discretionary
power to take such action, or (z) the Agent taking discretionary action it is
authorized to take under this Section.
8.04. GENERAL EXCULPATORY PROVISIONS.
- -------------------------------------
Notwithstanding anything to the contrary elsewhere in this Agreement or
any other Loan Document:
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(a) The Agent shall not be liable for any action taken or omitted to be
taken by it under or in connection with this Agreement or any other Loan
Document, unless caused by its own gross negligence or willful misconduct.
(b) The Agent shall not be responsible for (i) the execution, delivery,
effectiveness, enforceability, genuineness, validity or adequacy of this
Agreement or any other Loan Document, (ii) any recital, representation,
warranty, document, certificate, report or statement in, provided for in, or
received under or in connection with, this Agreement or any other Loan Document,
(iii) any failure of any Lender to perform any of their respective obligations
under this Agreement or any other Loan Document, or (iv) the existence,
validity, enforceability, perfection, recordation, priority, adequacy or value,
now or hereafter, of any Lien or other direct or indirect security afforded or
purported to be afforded by any of the Loan Documents or otherwise from time to
time.
(c) The Agent shall not be under any obligation to ascertain, inquire
or give any notice relating to (i) the performance or observance of any of the
terms or conditions of this Agreement or any other Loan Document on the part of
the Borrower, (ii) the business, operations, condition (financial or otherwise)
or prospects of the Borrower or any other Person, or (iii) except to the extent
set forth in SECTION 8.05(f) hereof, the existence of any Event of Default or
Potential Default.
(d) The Agent shall not be under any obligation, either initially or on
a continuing basis, to provide any Lender with any notices, reports or
information of any nature, whether in its possession presently or hereafter,
except for such notices, reports and other information expressly required by
this Agreement or any other Loan Document to be furnished by the Agent to such
Lender.
8.05. ADMINISTRATION BY THE AGENT.
- ----------------------------------
(a) The Agent may rely upon any notice or other communication of any
nature (written or oral, including but not limited to telephone conversations,
whether or not such notice or other communication is made in a manner permitted
or required by this Agreement or any Loan Document) purportedly made by or on
behalf of the proper party or parties, and the Agent shall not have any duty to
verify the identity or authority of any Person giving such notice or other
communication.
(b) The Agent may consult with legal counsel (including, without
limitation, in-house counsel for the Agent or in-house or other counsel for the
Borrower), independent public accountants and any other experts selected by it
from time to time, and the Agent 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.
(c) The Agent may conclusively rely upon the truth of the statements
and the correctness of the opinions expressed in any certificates or opinions
furnished to the Agent in accordance with the requirements of this Agreement or
any other Loan Document. Whenever the Agent shall deem it necessary or desirable
that a matter be proved or established with respect to the Borrower, or any
Lender, such matter may be established by a certificate of the Borrower, or such
Lender, as the case may be, and the Agent may conclusively rely upon such
certificate
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(unless other evidence with respect to such matter is specifically prescribed in
this Agreement or another Loan Document).
(d) The Agent may fail or refuse to take any action unless it shall be
indemnified to its satisfaction from time to time against any and all amounts,
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature which may be imposed on,
incurred by or asserted against the Agent by reason of taking or continuing to
take any such action.
(e) The Agent may perform any of its duties under this Agreement or any
other Loan Document by or through agents or attorneys-in-fact. The Agent shall
not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
(f) The Agent shall not be deemed to have any knowledge or notice of
the occurrence of any Event of Default or Potential Default unless the Agent has
received notice from a Lender or the Borrower referring to this Agreement and
purporting to describe an Event of Default or Potential Default. If the Agent
receives such a notice, the Agent shall give prompt notice thereof to each
Lender.
8.06. LENDER NOT RELYING ON AGENT OR OTHER LENDERS.
- ---------------------------------------------------
Each Lender acknowledges as follows: (a) Neither the Agent nor any
other Lender has made any representations or warranties to it, and no act taken
hereafter by the Agent or any other Lender shall be deemed to constitute any
representation or warranty by the Agent or such other Lender to it; (b) it has,
independently and without reliance upon the Agent or any other Lender, and based
upon such documents and information as it has deemed appropriate, made its own
credit and legal analysis and decision to enter into this Agreement and the
other Loan Documents; (c) it will, independently and without reliance upon the
Agent or any other Lender, and based upon such documents and information as it
shall deem appropriate at the time, make its own decisions to take or not take
action under or in connection with this Agreement and the other Loan Documents.
8.07. INDEMNIFICATION.
- ----------------------
Each Lender (including the Agent in its capacity as a Lender) agrees to
reimburse and indemnify the Agent and its directors, officers, employees and
agents (to the extent not reimbursed by a Loan Party and without limitation of
the obligations of the Borrower to do so), Pro Rata, from and against any and
all amounts, losses, liabilities, claims, damages, expenses, obligations,
penalties, actions, judgments, suits, costs or disbursements of any kind or
nature (including, without limitation, the fees and disbursements of counsel for
the Agent or such other Person in connection with any investigative,
administrative or judicial proceeding commenced or threatened, whether or not
the Agent or such other Person shall be designated a party thereto) that may at
any time be imposed on, incurred by or asserted against the Agent or such other
Person as a result of, or arising out of, or in any way related to or by reason
of, this Agreement, any other Loan Document, any transaction from time to time
contemplated hereby or thereby, or any transaction financed in whole or in part
or directly or indirectly with the proceeds of any Loan, PROVIDED that no Lender
shall be liable for any portion of such amounts, losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements
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resulting solely from the gross negligence or willful misconduct of the Agent or
such other Person, as finally determined by a court of competent jurisdiction.
8.08. AGENT IN ITS INDIVIDUAL CAPACITY.
- ---------------------------------------
With respect to its Commitments and the Obligations owing to it, the
Agent shall have the same rights and powers under this Agreement and each other
Loan Document as any other Lender and may exercise the same as though it were
not the Agent, and the terms "Lenders," "Holders of Notes" and like terms shall
include the Agent in its individual capacity as such. The Agent and its
affiliates may, without liability to account, make loans to, accept deposits
from, acquire debt or equity interests in, act as trustee under indentures of,
and engage in any other business with, any Loan Party and any stockholder,
subsidiary or affiliate of any Loan Party, as though the Agent were not the
Agent hereunder.
8.09. HOLDERS OF NOTES.
- -----------------------
The Agent may deem and treat the Lender which is payee of a Note as the
owner and holder of such Note for all purposes hereof unless and until a
Transfer Supplement with respect to the assignment or transfer thereof shall
have been filed with the Agent in accordance with SECTION 9.14 hereof. Any
authority, direction or consent of any Person who at the time of giving such
authority, direction or consent is shown in the Register as being a Lender shall
be conclusive and binding on each present and subsequent holder, transferee or
assignee of any Note or Notes payable to such Lender or of any Note or Notes
issued in exchange therefor.
8.10. SUCCESSOR AGENT.
- ----------------------
The Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Agent (which may be one of the other
Lenders). If no successor Agent shall have been so appointed and consented to,
and shall have accepted such appointment, within thirty (30) days after such
notice of resignation then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent. Each successor Agent shall be a commercial bank or
trust company organized under the laws of the United States of America or any
State thereof and having a combined capital and surplus of at least
$1,000,000,000 or be one of the other Lenders. Upon the acceptance by a
successor Agent of its appointment as Agent hereunder, such successor Agent
shall thereupon succeed to and become vested with all the properties, rights,
powers, privileges and duties of the former Agent, without further act, deed or
conveyance. Upon the effective date of resignation, of a retiring Agent, such
Agent shall be discharged from its duties under this Agreement and the other
Loan Documents, but the provisions of this Agreement shall inure to its benefit
as to any actions taken or omitted by it while it was Agent under this
Agreement. If and so long as no successor Agent shall have been appointed, then
any notice or other communication required or permitted to be given by the Agent
shall be sufficiently given if given by the Required Lenders, all notices or
other communications required or permitted to be given to the Agent shall be
given to each Lender, and all payments to be made to the Agent shall be made
directly to the Borrower or Lender for whose account such payment is made.
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8.11. CALCULATIONS.
- -------------------
The Agent shall not be liable for any calculation, apportionment or
distribution of payments made by it in good faith. If such calculation,
apportionment or distribution is subsequently determined to have been made in
error, the sole recourse of any Lender to whom payment was due but not made
shall be to recover from the other Lenders any payment in excess of the amount
to which they are determined to be entitled or, if the amount due was not paid
by the Borrower, to recover such amount from the Borrower.
8.12. FUNDING BY AGENT.
- -----------------------
Unless the Agent shall have been notified in writing by any Lender not
later than the close of business on the day before the day on which Loans are
requested by the Borrower to be made that such Lender will not make its ratable
share of such Loans, the Agent may assume that such Lender will make its ratable
share of the Loans, and in reliance upon such assumption the Agent may (but
shall not be required to, except as otherwise set forth in Section 2.01(a)(ii)
with respect to the Agent's obligations to make Revolving Credit Loans) make
available to Borrower a corresponding amount. If and to the extent that any
Lender fails to make such payment to the Agent on such date, such Lender shall
pay such amount on demand (or, if such Lender fails to pay such amount on
demand, the Borrower shall pay such amount on demand), together with interest,
for the Agent's own account, for each day from and including the date of the
Agent's payment to and including the date of repayment to the Agent (before and
after judgment) at the rate or rates per annum applicable to such Loans. All
payments to the Agent under this Section shall be made to the Agent at its
Office in Dollars in funds immediately available at such Office, without
set-off, withholding, counterclaim or other deduction of any nature.
ARTICLE IX: MISCELLANEOUS
-------------------------
9.01. HOLIDAYS.
- ---------------
Whenever any payment or action to be made or taken hereunder or under
any other Loan Document shall be stated to be due on a day which is not a
Business Day (or a London Business Day with respect to a Fixed LIBOR Rate Loan),
such payment or action shall be made or taken on the next following Business Day
(or the next following London Business Day, as the case may be) and such
extension of time shall be included in computing interest or fees, if any, in
connection with such payment or action.
9.02. RECORDS.
- --------------
The unpaid principal amount of the Loans owing to each Lender, the
unpaid interest accrued thereon, the interest rate or rates applicable to such
unpaid principal amount, the duration of such applicability, and each Lender's
respective Revolving Credit, Term Loan A and Term Loan B Committed Amounts shall
at all times be ascertained from the records of the Agent, which shall be
conclusive absent manifest error.
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9.03. AMENDMENTS AND WAIVERS.
- -----------------------------
Neither this Agreement nor any Loan Document may be amended, modified
or supplemented except in accordance with the provisions of this Section. Any
such amendment, modification or supplement must be in writing and shall be
effective only to the extent set forth in such writing and only if approved in
advance by the Required Lenders. The Agent shall enter into such amendments,
modifications or supplements from time to time as directed by the Required
Lenders. Notwithstanding anything contained in this Section to the contrary, no
such amendment, modification or supplement may be made which will:
(a) Increase or decrease, except as expressly permitted herein, the
Revolving Credit Committed Amount, the Term Loan A Committed Amount or the Term
Loan B Committed Amount of any Lender over the amount thereof then in effect, or
extend the Revolving Credit Maturity Date, the Term Loan A Maturity Date or the
Term Loan B Maturity Date, without the written consent of each Lender affected
thereby;
(b) Reduce the principal of any Loan (except as herein provided) or
extend the time for any payment of principal of any Loan, or reduce the rate of
interest or extend the time for payment of interest borne by any Loan, or extend
the time for payment of or reduce the amount of any Commitment Fee or reduce or
postpone the date for payment of any other fees, expenses, indemnities or
amounts payable under any Loan Document, without the written consent of each
Lender affected thereby;
(c) Change the definition of "Required Lenders" or amend this SECTION
9.03 or SECTION 9.14(a), without the written consent of all the Lenders;
(d) Amend or waive any of the provisions of ARTICLE VIII hereof, or
impose additional duties upon the Agent or otherwise adversely affect the
rights, interests obligations of the Agent, without the written consent of
Agent; or
(e) Release collateral for the Loan, if any, including, but not limited
to, any collateral covered by the Security Documents, without the consent of all
Lenders, unless such release is permitted in the Loan Documents;
and PROVIDED FURTHER, that Transfer Supplements may be entered into in the
manner provided in SECTION 9.14 hereof.
Any Event of Default or Potential Default waived or consented to in any
such amendment, modification or supplement shall be deemed to be cured and not
continuing to the extent and for the period set forth in such waiver or consent,
but no such waiver or consent shall extend to any other or subsequent Event of
Default or Potential Default or impair any right consequent thereto.
9.04. NO IMPLIED WAIVER: CUMULATIVE REMEDIES.
- ---------------------------------------------
No course of dealing and no delay or failure of the Agent or any Lender
in exercising any right, power or privilege under this Agreement or any other
Loan Document shall affect any other or future exercise thereof or exercise of
any other right, power or privilege; nor shall any single or partial exercise of
any such right, power or privilege or any abandonment or
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discontinuance of steps to enforce such a right, power or privilege preclude any
further exercise thereof or of any other right, power or privilege. The rights
and remedies of the Agent and the Lenders under this Agreement and any other
Loan Document are cumulative and not exclusive of any rights or remedies which
the Agent or any Lender would otherwise have hereunder or thereunder, at law, in
equity or otherwise.
9.05. NOTICES.
- --------------
(a) Except to the extent otherwise expressly permitted hereunder or
thereunder, all notices, requests, demands, directions and other communications
(collectively "notices") under this Agreement or any Loan Document shall be in
writing (including telexed and telecopied communication) and shall be sent by
first-class mail, or by nationally-recognized overnight courier, or by telex or
telecopier (with confirmation in writing mailed first-class or sent by such an
overnight courier), or by personal delivery. All notices shall be sent to the
applicable party at the address stated on the signature pages hereof or in
accordance with the last unrevoked written direction from such party to the
other parties hereto, in all cases with postage or other charges prepaid. Any
such properly given notice to the Agent, any Lender or the Borrower shall be
effective when received; PROVIDED, HOWEVER, any notice of an Event of Default
given by the Agent or any Lender to the Borrower shall be effective on the
earliest to occur of receipt, telephone confirmation of receipt of telex or
telecopy communication, two (2) Business Days after delivery to a nationally
recognized overnight courier, or three (3) Business Days after deposit in the
mail.
(b) The Agent and each Lender may rely on any notice (whether or not
such notice is made in a manner permitted or required by this Agreement or any
Loan Document) purportedly made by or on behalf of the Borrower by a Responsible
Officer, and neither the Agent nor any Lender shall have any duty to verify the
identity or authority of any such Person giving such notice.
9.06. EXPENSES; TAXES; INDEMNITY.
- ---------------------------------
(a) The Borrower agrees to pay or cause to be paid and to save each
Lender harmless against liability for the payment of all reasonable
out-of-pocket costs and expenses (including but not limited to reasonable fees
and expenses of counsel, including local counsel, in-house counsel, auditors,
consulting engineers, appraisers, and all other professional, accounting,
evaluation and consulting costs) incurred by any Lender or the Agent from time
to time arising from or relating to (i) the negotiation, preparation, execution
and delivery of this Agreement and the other Loan Documents, which amount shall
not exceed $25,000 plus all reasonable out-of-pocket costs and expenses; (ii)
the administration and performance of this Agreement and the other Loan
Documents, (iii) any requested amendments, modifications, supplements, waivers
or consents (whether or not ultimately entered into or granted) to this
Agreement or any Loan Document, and (iv) the enforcement or preservation of
rights under this Agreement or any Loan Document (including, but not limited to,
any such costs or expenses arising from or relating to (A) collection or
enforcement of an outstanding Loan or any other amount owing hereunder or
thereunder by the Agent or any Lender, and (B) any litigation, proceeding,
dispute, work-out, restructuring or rescheduling related in any way to this
Agreement or the Loan Documents), and (c) enforcement of any Guaranty.
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(b) The Borrower hereby agrees to pay all stamp, document, transfer,
recording, filing, registration, search, sales and excise fees and taxes and all
similar impositions now or hereafter determined by the Agent or any Lender to be
payable in connection with this Agreement or any other Loan Documents or any
other documents, instruments or transactions pursuant to or in connection
herewith or therewith, and the Borrower agrees to save the Agent and each Lender
harmless from and against any and all present or future claims, liabilities or
losses with respect to or resulting from any omission to pay or delay in paying
any such fees, taxes or impositions.
(c) The Borrower hereby agrees to reimburse and indemnify each of the
Indemnified Parties from and against any and all losses, liabilities, claims,
damages, expenses, obligations, penalties, actions, judgments, suits, costs or
disbursements of any kind or nature whatsoever (including, without limitation,
fees and disbursements of counsel for such Indemnified Party in connection with
any investigative, administrative or judicial proceeding commenced or
threatened, whether or not such Indemnified Party shall be designated a party
thereto) that may at any time be imposed on, asserted against or incurred by
such Indemnified Party as a result of, or arising out of, or in any way related
to or by reason of, this Agreement or any other Loan Document, any transaction
from time to time contemplated hereby thereby, or any transaction financed in
whole or in part or directly or indirectly with the proceeds of any Loan (and
without any way limiting the generality of the foregoing, including any
violation or breach of any Environmental Law or any other Law by the Borrower,
or any Subsidiary of Borrower; any Environmental Claim arising out of the
management, use, control, ownership or operation of property by any of such
Persons, including all onsite and off-site activities involving Environmental
Concern Materials; or any exercise by the Agent or any Lender of any of its
rights or remedies under this Agreement or any other Loan Document); but
excluding any such losses, liabilities, claims, damages, expenses, obligations,
penalties, actions, judgments, suits, costs or disbursements resulting solely
from the gross negligence or willful misconduct of such Indemnified Party, as
finally determined by a court of competent jurisdiction. If and to the extent
that the foregoing obligations of the Borrower under this subsection (c), or any
other indemnification obligation of the Borrower hereunder or under any other
Loan Document, are unenforceable for any reason, the Borrower hereby agrees to
make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable Law.
9.07. SEVERABILITY.
- -------------------
The provisions of this Agreement are intended to be severable. If any
provision of this Agreement shall be held invalid or unenforceable in whole or
in part in any jurisdiction such provision shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without in any
manner affecting the validity or enforceability thereof in any other
jurisdiction or the remaining provisions hereof in any jurisdiction.
9.08. PRIOR UNDERSTANDINGS.
- ---------------------------
This Agreement and the other Loan Documents supersede all prior and
contemporaneous understandings and agreements, whether written or oral, among
the parties hereto relating to the transactions provided for herein and therein.
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9.09. DURATION; SURVIVAL.
- -------------------------
All representations and warranties of the Borrower contained herein or
in any other Loan Document or made in connection herewith or therewith shall
survive the making of, and shall not be waived by the execution and delivery of,
this Agreement or any other Loan Document, any investigation by or knowledge of
the Agent or any Lender, the making of any Loan, or any other event or condition
whatever. All covenants and agreements of the Borrower contained herein or in
any other Loan Document shall continue in full force and effect from and after
the Closing Date so long as the Borrower may borrow hereunder and until payment
in full of all Obligations. Without limitation, all obligations of the Borrower
hereunder or under any other Loan Document to make payments to or indemnify the
Lenders shall survive the payment in full of all other Obligations, termination
of the Borrower's right to borrow hereunder, and all other events and conditions
whatever.
9.10. COUNTERPARTS; FURTHER ASSURANCES.
- ---------------------------------------
(a) This Agreement may be executed in any number of counterparts and by
the different parties hereto on separate counterparts each of which, when so
executed, shall be deemed an original, but all such counterparts shall
constitute but one and the same instrument.
(b) The Borrower and the Guarantors shall promptly execute, upon
request of the Agent, any further, additional, corrected or amended instruments
and documents which may reasonably be required by the Agent with respect to the
Loans being made hereunder and to evidence compliance with the terms of this
Agreement.
9.11. LIMITATION ON PAYMENTS.
- -----------------------------
The parties hereto intend to conform to all applicable Laws in effect
from time to time limiting the maximum rate of interest that may be charged or
collected. Accordingly, notwithstanding any other provision hereof or of any
other Loan Document, the Borrower shall not be required to make any payment to
or for the account of the Lenders, and the Lenders shall refund any payment made
by the Borrower, to the extent that such requirement or such failure to refund
would violate or conflict with nonwaivable provisions of applicable Laws
limiting the maximum amount of interest which may be charged or collected by
such Lenders.
9.12. SET-OFF.
- --------------
The Borrower hereby agrees that, to the fullest extent permitted by
law, if any Obligation of the Borrower shall be due and payable (by acceleration
or otherwise), each Lender shall have the right after the occurrence of an Event
of Default, without notice to the Borrower to set-off against and to appropriate
and apply to such Obligation any indebtedness, liability or obligation of any
nature owing to the Borrower by such Lender, including but not limited to all
deposits (whether time or demand, general or special, provisionally credited or
finally credited, whether or not evidenced by a certificate of deposit) now or
hereafter maintained by Borrower with such Lender. Except as set forth above,
such right shall be absolute and unconditional in all circumstances and, without
limitation, shall exist whether or not such Lender or any other Person shall
have given notice or made any demand to the Borrower, or any other Person,
(except any notice that may be a condition precedent to the occurrence of an
Event of Default), and
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regardless of the existence or adequacy of any collateral, guaranty or any other
security, right or remedy available to any Lender or any other Person. The
Borrower hereby agrees that, to the fullest extent permitted by law, any branch,
subsidiary or affiliate of any Lender shall have the same rights of set-off as
the Lender as provided in this Section (regardless of whether such branch,
subsidiary or affiliate would otherwise be deemed in privity with or a direct
creditor of the Borrower). The rights provided by this SECTION 9.12 are in
addition to all other rights of set-off and banker's lien and all other rights
and remedies which any Lender (or any such branch, subsidiary or affiliate) may
otherwise have under this Agreement, any other Loan Document, at law or in
equity, or otherwise, and nothing in this Agreement or any Loan Document shall
be deemed a waiver or prohibition of or restriction on the rights of set-off or
bankers lien of any such Person.
9.13. SHARING OF COLLECTIONS.
- -----------------------------
The Lenders hereby agree among themselves that if any Lender shall
receive (by voluntary payment, realization upon security, set-off or from any
other source) any amount on account of the Loans, interest thereon, or any other
Obligation contemplated by this Agreement or the other Loan Documents to be made
by the Borrower Pro Rata to all Lenders in greater proportion than any such
amount received by any other Lender, then the Lender receiving such
proportionately greater payment shall notify each other Lender and the Agent of
such receipt, and equitable adjustment will be made in the manner stated in this
Section so that, in effect, all such excess amounts will be shared ratably among
all of the Lenders. The Lender receiving such excess amount shall purchase
(which it shall be deemed to have done simultaneously upon the receipt of such
excess amount) for cash from the other Lenders a participation in the applicable
Obligations owed to such other Lenders in such amount as shall result in a
ratable sharing by all Lenders of such excess amount. If all or any portion of
such excess amount is thereafter recovered from the Lender making such purchase,
such purchase shall be rescinded and the purchase price restored to the extent
of such recovery, together with interest or other amounts, if any, required by
Law to be paid by the Lender making such purchase. The Borrower hereby consents
to and confirm the foregoing arrangements.
9.14. SUCCESSORS AND ASSIGNS: ASSIGNMENTS.
- ------------------------------------------
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Lenders, all future holders of any of
the Notes, the Agent and their respective successors and assigns, except that
Borrower may not assign or transfer any of its rights hereunder or interests
herein without the prior written consent of all of the Lenders, and any
purported assignment without such consent shall be void.
(b) ASSIGNMENTS. Any Lender may, in the ordinary course of its
commercial banking business and in accordance with applicable Law, at any time
assign all or a portion of its rights and obligations under this Agreement and
the other Loan Documents (including, without limitation, all or any portion of
its Commitments and Loans owing to it and any Note held by it and all or any
portion of its interest in any Letter of Credit issued by Agent hereunder) to
any Lender, any affiliate of a Lender or to one or more additional commercial
banks or other Persons (each a "Purchasing Lender"); PROVIDED, that
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(i) any such assignment to a Purchasing Lender which is not a
Lender, an affiliate (if the Purchaser Lender is assigning all of its rights and
obligations under the Loan Documents) of a Lender or a Federal Reserve Bank
shall be made only with the consent (which in each case shall not be
unreasonably withheld) of Borrower (provided that no Event of Default has
occurred and is continuing) and the Agent,
(ii) if a Lender makes such an assignment of less than all of its
then remaining rights and obligations under this Agreement and the other Loan
Documents, such transferor Lender shall retain, after such assignment, a minimum
principal amount of $1,000,000 of the Commitment and Loans then outstanding, and
such assignment shall be in a minimum aggregate principal amount of $2,500,000
of the Commitment and Loans then outstanding,
(iii) each such assignment shall be of a constant, and not a
varying, percentage of the Commitment of the transferor Lender and of all of the
transferor Lender's rights and obligations under this Agreement and the other
Loan Documents,
(iv) if the assignment is to be made to an assignee which is
organized under the laws of any jurisdiction other than the United States or any
state thereof, the assignor Lender shall cause such assignee, at least five (5)
Business Days prior to the effective date of such assignment, (A) to represent
to the assignor Lender (for the benefit of the assignor Lender, Agent and
Borrower) that under applicable law and treaties no taxes will be required to be
withheld by Agent, Borrower or the assignor with respect to any payments to be
made to such assignee in respect of the Loans hereunder, (B) to furnish to the
assignor (and, in the case of any assignee registered in the Register (as
defined below), Agent and Borrower) either (1) U.S. Internal Revenue Service
Form W-8 or W-9, as applicable (wherein such assignee claims entitlement to
complete exemption from U.S. federal withholding tax on all interest payments
hereunder), and (C) to agree (for the benefit of the assignor, Agent and
Borrower) to provide the assignor Lender (and, in the case of any assignee
registered in the Register, Agent and Borrower) a new Form 4224 or Form 1001 or
Form W-8 or W-9, as applicable, upon the expiration or obsolescence of any
previously delivered form and comparable statements in accordance with
applicable U.S. laws and regulations and amendments duly executed and completed
by such assignee, and to comply from time to time with all applicable U.S. laws
and regulations with regard to such withholding tax exemption; and
(v) each such assignment shall be made pursuant to a Transfer
Supplement in substantially the form of EXHIBIT I to this Agreement, duly
completed (a "Transfer Supplement").
In order to effect any such assignment, the transferor Lender and the Purchasing
Lender shall execute and deliver to the Agent a duly completed Transfer
Supplement (including the consents required by clause (i) of this SECTION
9.14(b)) with respect to such assignment, together with any Note or Notes
subject to such assignment and a processing and recording fee of $2,500; and,
upon receipt thereof, the Agent shall accept such Transfer Supplement. Upon
receipt of the Purchase Price Receipt Notice pursuant to such Transfer
Supplement, the Agent shall record such acceptance in the Register. Upon such
execution, delivery, acceptance and recording, from and after the Transfer
Effective Date specified in such Transfer Supplement,
70
<PAGE> 75
(x) the Purchasing Lender shall be a party hereto
and, to the extent provided in such Transfer Supplement, shall have the
rights and obligations of a Lender hereunder, and
(y) the transferor Lender thereunder shall be
released from its obligations under this Agreement to the extent so
transferred (and, in the case of an Transfer Supplement covering all or
the remaining portion of a transferor Lender's rights and obligations
under this Agreement, such transferor Lender shall cease to be a party
to this Agreement) from and after the Transfer Effective Date.
On or prior to the Transfer Effective Date specified in a Transfer Supplement,
the Borrower, at its expense, shall execute and deliver to the Agent (for
delivery to the Purchasing Lender) new Notes evidencing such Purchasing Lender's
assigned Commitments or Loans and (for delivery to the transferor Lender)
replacement Notes in the principal amount of the Loans or Commitments retained
by the transferor Lender (such Notes to be in exchange for, but not in payment
of, those Notes then held by such transferor Lender) provided that the Agent has
delivered to the Borrower the predecessor Note being exchanged or replaced or,
if such predecessor Note has been lost, mutilated or destroyed, an affidavit
with customary indemnity of the Transferor Lender to such effect. Each such Note
shall be dated the date and be substantially in the form of the predecessor
Note. The Agent shall mark the predecessor Notes exchanged and deliver them to
the Borrower. Accrued interest and accrued fees shall be paid to the Purchasing
Lender at the same time or times provided in the predecessor Notes and this
Agreement.
(c) REGISTER. The Agent shall maintain at its office a copy of each
Transfer Supplement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Lenders and the Commitments of,
and principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive absent manifest error 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 the 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) FINANCIAL AND OTHER INFORMATION. The Borrower authorizes the Agent
and each Lender to disclose to any Purchasing Lender (each, a "transferee") and
any prospective transferee any and all financial and other information in such
Person's possession concerning the Borrower and its Subsidiaries and Affiliates
which has been or may be delivered to such Person by or on behalf of the
Borrower in connection with this Agreement or any other Loan Document or such
Person's credit evaluation of the Borrower and its Subsidiaries and Affiliates.
At the request of any Lender, the Borrower, at the Borrower's expense, shall
provide to each prospective transferee the conformed copies of documents
referred to in Section 4 of the form of Transfer Supplement.
(f) ASSIGNMENTS TO FEDERAL RESERVE BANK. Any Lender may at any time
assign all or any portion of its rights under this Agreement, including without
limitation any Loans owing to it, and any Note held by it to a Federal Reserve
Bank. No such assignment shall relieve the transferor Lender from its
obligations hereunder.
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<PAGE> 76
(g) CONFIDENTIALITY. The Agent and each Lender agrees that it shall
maintain in confidence, and shall not disclose, any Confidential Information (as
hereinafter defined) to any Person not a party hereto except:
(i) to the Borrower or any financial institution which is a
prospective purchaser of, such Lender's rights and obligations under, the Notes
provided that each such entity shall agree, by executing a confidentiality
agreement in the form attached hereto as EXHIBIT J, to be bound by terms
substantially the same as this SECTION 9.14(g);
(ii) with the prior consent of the Borrower to any other Person.
For the purposes of this SECTION 9.14(g), "Confidential Information" shall mean
information furnished by or on behalf of the Borrower or any Subsidiary pursuant
to or in connection with this Agreement or any other Loan Document which has
been clearly and conspicuously marked or otherwise identified as "Confidential"
by or on behalf of the Borrower or any Subsidiary at the time of disclosure or
within thirty (30) days thereafter.
The restrictions contained in this SECTION 9.14(g) shall not prevent the
disclosure by the Agent or any Lender of any information:
(i) upon the order of any court or administrative agency to the
extent required by such order and not effectively stayed by appeal or otherwise,
(ii) upon the request or demand of any regulatory agency or
authority having jurisdiction over such party (whether or not such request or
demand has the force of law),
(iii) that has been publicly disclosed other than by breach of this
SECTION 9.14(g) by Lender or by any other Person who has agreed to abide by the
provisions of this SECTION 9.14(g),
(iv) that has been obtained from any Person that is neither a party
hereto nor an affiliate of any such party nor a Person which has any other
confidentiality obligation to any party hereto or any affiliate of any party
hereto with required to such information nor a Person to which any party has a
confidentiality obligation with respect to such information,
(v) to counsel accountants or affiliates for the Agent or any
Lender or counsel or accountants for such other Person who has agreed to abide
by the provisions of this SECTION 9.14(g),
(vi) in connection with the exercise of any right or remedy under
any Loan Document,
(vii) as expressly provided by this Agreement or any such other
Document, or
(viii) as otherwise required by Law or by such party deemed in good
faith to be required by law,
PROVIDED, HOWEVER, the Agent or such Lender shall provide the Borrower with
written notice of any disclosure made pursuant to clauses (i) through (vii)
above, and the Agent or such Lender
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<PAGE> 77
shall use all reasonable efforts to advise the Borrower in writing prior to any
proposed disclosure pursuant to clause (viii) above. The Agent and each Lender
will use all reasonable efforts to advise the Borrower in writing at the time it
first becomes aware of circumstances which may lead to a disclosure pursuant to
clauses (i) and (viii) above and permit the Borrower to participate in any
actions or proceedings in connection with any such possible disclosure. The
Agent and each Lender, at the Borrower's sole cost and expense, shall cooperate
fully with the Borrower in any attempt to prevent such disclosure.
9.15. RESERVED.
- ---------------
9.16. GOVERNING LAW; SUBMISSION TO JURISDICTION: WAIVER OF JURY TRIAL;
- ----------------------------------------------------------------------
LIMITATION OF LIABILITY.
- ------------------------
(a) GOVERNING LAW. THIS AGREEMENT AND ALL OTHER LOAN DOCUMENTS (EXCEPT
TO THE EXTENT, IF ANY, OTHERWISE EXPRESSLY STATED IN SUCH OTHER LOAN DOCUMENTS)
SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD OR REFERENCE TO ITS CHOICE OF LAW PRINCIPLES.
(b) CERTAIN WAIVERS. THE BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY:
(i) AGREES THAT ANY ACTION, SUIT OR PROCEEDING BY ANY PERSON
ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR ANY
STATEMENT, COURSE OF CONDUCT, ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION
HEREWITH OR THEREWITH (COLLECTIVELY, "RELATED LITIGATION") MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING IN MONROE COUNTY, NEW
YORK, AND SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND TO THE FULLEST EXTENT
PERMITTED BY LAW AGREES THAT IT WILL NOT BRING ANY RELATED LITIGATION IN ANY
OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY LENDER TO BRING
ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM);
(ii) WAIVES ANY OBJECTION WHICH IT MAY HAVE AT ANY TIME TO THE
LAYING OF VENUE OF ANY RELATED LITIGATION BROUGHT IN ANY SUCH COURT, WAIVES ANY
CLAIM THAT ANY SUCH RELATED LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM, AND WAIVES ANY RIGHT TO OBJECT, WITH RESPECT TO ANY RELATED LITIGATION
BROUGHT IN ANY SUCH COURT, THAT SUCH COURT DOES NOT HAVE JURISDICTION OVER IT;
(iii) CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR
OTHER LEGAL PROCESS IN ANY RELATED LITIGATION BY REGISTERED OR CERTIFIED U.S.
MAIL, POSTAGE PREPAID, TO THE BORROWER AT THE ADDRESS FOR NOTICES DESCRIBED IN
SECTION 9.05 HEREOF, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE
IN EVERY RESPECT VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT
73
<PAGE> 78
THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY
LAW);
(iv) WAIVES THE RIGHT TO TRIAL BY JURY IN ANY RELATED LITIGATION;
AND
74
<PAGE> 79
IN WITNESS WHEREOF, the parties hereto, by their officers thereunto
duly authorized, have executed and delivered this Revolving Credit Agreement as
of the date first above written.
TRANSMATION, INC.
By: /s/ Robert G. Klimasewski
-----------------------------
Robert G. Klimasewski,
Chairman of the Board of Directors
Address for Notices:
10 Vantage Point Drive
Rochester, New York 14624
Attn: Robert G. Klimasewski,
Chairman of the Board of Directors
Telephone: (716) 325-7777
Telecopier: (716) 352-7788
with a copy to:
Harter, Secrest & Emery
700 Midtown Tower
Rochester, New York 14604
Attn: Walter D. Bay, Esq.
Telephone: (716) 232-6500
Telecopier: (716) 232-2152
75
<PAGE> 80
KEYBANK NATIONAL ASSOCIATION, AS AGENT
AND A LENDER
By: /s/ Timothy R. Beers
------------------------------------
Timothy R. Beers
Title: Vice President, Corporate Banking
and Finance Group
Address for Notices:
1200 Bausch & Lomb Plaza
Rochester, New York 14604
Attn: Timothy R. Beers
Vice President, Corporate Banking
and Finance Group
Telephone: (716) 238-4141
Telecopier: (716) 238-4142
with a copy to:
Boylan, Brown, Code, Fowler, Vigdor & Wilson, LLP
2400 Chase Square
Rochester, New York 14604
Attn: Corporate Banking Group
Telephone: (716) 232-5300
Telecopier: (716) 232-3528
Revolving Credit Committed Amount: $15,000,000
Term Loan A Committed Amount: $9,000,000
Term Loan B Committed Amount: $8,000,000
Commitment Percentage: 100%
76
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S SEPTEMBER 30, 1998 FORM 10-Q AND IS QUALIFIED IN ITS ENTIRETY BY
REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> MAR-31-1999
<PERIOD-END> SEP-30-1998
<CASH> 630,557
<SECURITIES> 0
<RECEIVABLES> 11,225,073
<ALLOWANCES> 527,000
<INVENTORY> 10,607,766
<CURRENT-ASSETS> 23,823,402
<PP&E> 12,503,914
<DEPRECIATION> 6,177,780
<TOTAL-ASSETS> 49,194,080
<CURRENT-LIABILITIES> 9,559,985
<BONDS> 26,432,200
0
0
<COMMON> 2,942,701
<OTHER-SE> 11,744,662
<TOTAL-LIABILITY-AND-EQUITY> 49,194,080
<SALES> 25,720,248
<TOTAL-REVENUES> 34,298,118
<CGS> 16,908,543
<TOTAL-COSTS> 22,616,720
<OTHER-EXPENSES> 9,665,202
<LOSS-PROVISION> (65,000)
<INTEREST-EXPENSE> 1,147,035
<INCOME-PRETAX> 944,161
<INCOME-TAX> 369,500
<INCOME-CONTINUING> 574,661
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 574,661
<EPS-PRIMARY> .10
<EPS-DILUTED> .09
</TABLE>
