Exhibit 10.17
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REVOLVING CREDIT AND TERM LOAN AGREEMENT
dated as of March 24, 2000
among
GENRAD, INC.,
GENRAD HOLDINGS LIMITED,
GENRAD EUROPE LIMITED,
GENRAD LIMITED,
FLEET NATIONAL BANK
and the other lending institutions set forth on Schedule 1 hereto,
and
FLEET NATIONAL BANK,
as Agent,
with
FLEETBOSTON ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC., having acted as Arranger
and
KEYBANK NATIONAL ASSOCIATION, having acted as Documentation Agent
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TABLE OF CONTENTS
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1. DEFINITIONS AND RULES OF INTERPRETATION....................................1
1.1. Definitions......................................................1
1.2. Rules of Interpretation..........................................26
2. THE REVOLVING CREDIT FACILITY..............................................27
2.1. Commitment to Lend...............................................27
2.2. Commitment Fee...................................................28
2.3. Reduction of Total Revolving Credit Commitment...................28
2.4. The Revolving Credit Notes.......................................28
2.5. Interest on Revolving Credit Loans...............................29
2.6. Requests for Revolving Credit Loans..............................29
2.6.1. General.................................................29
2.6.2. Temporary Suspension of Eurocurrency Rate Options.......30
2.7. Conversion Options...............................................30
2.7.1. Conversion to Different Type of Revolving Credit Loan...30
2.7.2. Continuation of Type of Revolving Credit Loan...........31
2.7.3. Eurocurrency Rate Loans.................................31
2.8. Funds for Revolving Credit Loan..................................31
2.8.1. Funding Procedures......................................31
2.8.2. Advances by Agent.......................................32
2.9. Optional Currency................................................32
2.9.1. Request for Optional Currency...........................33
2.9.2. Exchange Rate...........................................34
2.9.3. Denominations...........................................34
2.9.4. Repayment...............................................34
2.9.5. Funding.................................................34
2.10. Overdraft Facility..............................................34
2.11. Change in Borrowing Base........................................36
3. REPAYMENT OF THE REVOLVING CREDIT LOANS....................................37
3.1. Maturity.........................................................37
3.2. Mandatory Repayments of Revolving Credit Loans...................37
3.3. Optional Repayment of Revolving Credit Loans.....................37
4. THE TERM LOAN..............................................................38
4.1. Commitment to Lend...............................................38
4.2. The Term Notes...................................................38
4.3. Schedule of Installment Payments of Principal of Term Loan.......38
4.3.1. Nicolet Term Loan.......................................38
4.3.2. AutoDiagnos Term Loan...................................39
4.4. Mandatory Prepayment of Term Loan................................40
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4.5. Optional Prepayment of Term Loan.................................40
4.6. Interest on Term Loan............................................41
4.6.1. Interest Rates..........................................41
4.6.2. Notification by Term Borrowers..........................42
4.6.3. Amounts, etc............................................42
4.7. Term Loan Commitment Fee.........................................42
5. LETTERS OF CREDIT..........................................................42
5.1. Letter of Credit Commitments.....................................42
5.1.1. Commitment to Issue Letters of Credit...................42
5.1.2. Letter of Credit Applications...........................43
5.1.3. Terms of Letters of Credit..............................43
5.1.4. Reimbursement Obligations of Banks......................43
5.1.5. Participations of Banks.................................44
5.2. Reimbursement Obligation of the Revolver Borrowers...............44
5.3. Letter of Credit Payments........................................45
5.4. Obligations Absolute.............................................45
5.5. Reliance by Issuer...............................................46
5.6. Letter of Credit Fee.............................................46
6. CERTAIN GENERAL PROVISIONS.................................................47
6.1. Closing Fee......................................................47
6.2. Agent's Fee......................................................47
6.3. Funds for Payments...............................................47
6.3.1. Payments to Agent.......................................47
6.3.2. No Offset, etc..........................................47
6.4. Computations.....................................................48
6.5. Inability to Determine Eurocurrency Rate.........................48
6.6. Illegality.......................................................49
6.7. Additional Costs, etc............................................49
6.8. Capital Adequacy.................................................51
6.9. Certificate......................................................51
6.10. Indemnity........................................................51
6.11. Interest After Default...........................................52
6.11.1. Overdue Amounts........................................52
6.11.2. Amounts Not Overdue....................................52
6.12. Currency Matters.................................................52
6.12.1. Currency of Account..............................52
6.12.2. Currency Fluctuations............................53
6.13. Replacement Bank................................................54
6.14. European Monetary Union.........................................54
6.15. Lending Office..................................................57
7. COLLATERAL SECURITY........................................................57
7.1. Security of Borrowers............................................57
7.2. Guaranties and Security of Subsidiaries..........................57
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8. GUARANTY...................................................................57
8.1. Guaranty.........................................................57
8.2. Guaranty Absolute................................................57
8.3. Effectiveness, Enforcement.......................................59
8.4. Waiver...........................................................60
8.5. Subordination; Subrogation.......................................60
8.6. Payments.........................................................61
8.7. Receipt of Information...........................................61
9. REPRESENTATIONS AND WARRANTIES.............................................61
9.1. Corporate Authority..............................................61
9.1.1. Incorporation; Good Standing............................61
9.1.2. Authorization...........................................61
9.1.3. Enforceability..........................................62
9.2. Governmental Approvals...........................................62
9.3. Title to Properties; Leases......................................62
9.4. Financial Statements and Projections.............................63
9.4.1. Financial Statements....................................63
9.4.2. Projections.............................................63
9.4.3. Solvency................................................63
9.5. No Material Changes, etc.........................................64
9.6. Franchises, Patents, Copyrights, etc.............................64
9.7. Litigation.......................................................64
9.8. No Materially Adverse Contracts, etc.............................64
9.9. Compliance with Other Instruments, Laws, etc.....................65
9.10. Tax Status.......................................................65
9.11. No Event of Default..............................................65
9.12. Holding Company and Investment Company Acts......................65
9.13. Absence of Financing Statements, etc.............................65
9.14. Certain Transactions.............................................66
9.15. Employee Benefit Plans...........................................66
9.15.1. In General.............................................66
9.15.2. Terminability of Welfare Plans.........................66
9.15.3. Guaranteed Pension Plans...............................66
9.15.4. Multiemployer Plans....................................67
9.16. Use of Proceeds..................................................67
9.16.1. General................................................67
9.16.2. Regulations U and X....................................67
9.16.3. Ineligible Securities..................................67
9.17. Environmental Compliance.........................................68
9.18. Subsidiaries, etc................................................69
9.19. Chief Executive Offices..........................................69
9.20. Fiscal Year......................................................69
9.21. No Amendments to Certain Documents...............................70
9.22. Disclosure.......................................................70
9.23. No Withholding, Etc..............................................70
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9.24. No Filing, Recording Required....................................70
9.25. Perfection of Security Interest..................................70
10. AFFIRMATIVE COVENANTS OF THE BORROWERS....................................71
10.1. Punctual Payment.................................................71
10.2. Maintenance of Office............................................71
10.3. Records and Accounts.............................................71
10.4. Financial Statements, Certificates and Information...............71
10.5. Notices..........................................................73
10.5.1. Defaults...............................................73
10.5.2. Environmental Events...................................73
10.5.3. Notification of Claim against Collateral...............74
10.5.4. Notice of Litigation and Judgments.....................74
10.6. Corporate Existence; Maintenance of Properties...................74
10.7. Insurance........................................................74
10.8. Taxes............................................................75
10.9. Inspection of Properties and Books, etc..........................75
10.9.1. General................................................75
10.9.2. Collateral Reports.....................................75
10.9.3. Appraisals.............................................76
10.9.4. Communications with Accountants........................76
10.10. Compliance with Laws, Contracts, Licenses, and Permits...........76
10.11. Employee Benefit Plans...........................................76
10.12. Use of Proceeds..................................................77
10.13. Further Assurances...............................................77
10.14. Fair Labor Standards Act.........................................77
10.15. Additional Subsidiaries..........................................77
10.16. New Guarantors...................................................77
10.17. Interest Rate Protection.........................................78
10.18. Mitron UK........................................................78
10.19. AutoDiagnos......................................................78
10.20. GenRad Ireland...................................................78
11. CERTAIN NEGATIVE COVENANTS OF THE BORROWER................................79
11.1. Restrictions on Indebtedness.....................................79
11.2. Restrictions on Liens............................................80
11.3. Restrictions on Investments......................................81
11.4. Restricted Payments..............................................83
11.5. Merger, Consolidation and Disposition of Assets..................83
11.5.1. Mergers and Acquisitions...............................83
11.5.2. Disposition of Assets..................................85
11.6. Sale and Leaseback...............................................86
11.7. Compliance with Environmental Laws...............................86
11.8. Employee Benefit Plans...........................................86
11.9. Fiscal Year......................................................87
11.10. Negative Pledges.................................................87
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11.11. Transaction with Affiliates......................................87
11.12. Upstream Limitations.............................................87
11.13. Inconsistent Agreements..........................................87
11.14. Business Activities..............................................87
11.15. Modification of Documents and Charter Documents..................88
12. FINANCIAL COVENANTS OF THE BORROWER.......................................88
12.1. Leverage Ratio...................................................88
12.2. Quick Ratio......................................................88
12.3. Operating Cash Flow to Total Debt Service........................88
12.4. Minimum Operating Income.........................................89
13. CLOSING CONDITIONS........................................................89
13.1. Loan Documents, etc..............................................89
13.1.1. Loan Documents.........................................89
13.1.2. Nicolet Acquisition Documents..........................89
13.2. Certified Copies of Charter Documents............................89
13.3. Corporate Action.................................................89
13.4. Incumbency Certificate...........................................90
13.5. Validity of Liens................................................90
13.6. Perfection Certificates and UCC Search Results...................90
13.7. Certificates of Insurance........................................90
13.8. Borrowing Base Report............................................90
13.9. Accounts Receivable Aging Report.................................90
13.10. Solvency Certificate.............................................91
13.11. Opinion of Counsel...............................................91
13.12. Payment of Fees..................................................91
13.13. Satisfaction of Conditions of Nicolet Acquisition................91
13.14. Consents and Approvals...........................................91
13.15. No Material Adverse Change.......................................91
13.16. Limitation on Drawdowns at Closing...............................91
13.17. Closing Date Leverage Ratio......................................92
13.18. Minimum EBITDA...................................................92
14. CONDITIONS TO ALL BORROWINGS; CONDITIONS TO AUTODIAGNOS TERM LOAN.........92
14.1. Representations True; No Event of Default........................92
14.2. No Legal Impediment..............................................92
14.3. Governmental Regulation..........................................92
14.4. Proceedings and Documents........................................92
14.5. Borrowing Base Report............................................93
14.6. Exchange Limitations.............................................93
14.7. Conditions for AutoDiagnos Term Loan.............................93
14.7.1. GenRad Sweden: Incorporation; Good Standing............93
14.7.2. Election Request.......................................93
14.7.3. Drawing Period.........................................93
14.7.4. No Default.............................................93
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14.7.5. Satisfaction of Conditions of AutoDiagnos
Acquisition...........................................93
14.7.6. Consents and Approvals................................94
14.7.7. Legal Opinion.........................................94
14.7.8. Term Notes............................................94
15. EVENTS OF DEFAULT; ACCELERATION; ETC.....................................94
15.1. Events of Default and Acceleration..............................94
15.2. Termination of Commitments......................................98
15.3. Remedies........................................................98
15.4. Distribution of Collateral Proceeds.............................99
15.5. Exchange Rate...................................................99
16. SETOFF...................................................................100
17. THE AGENT................................................................101
17.1. Authorization...................................................101
17.2. Employees and Agents............................................102
17.3. No Liability....................................................102
17.4. No Representations..............................................102
17.4.1. General...............................................102
17.5. Payments........................................................103
17.5.1. Payments to Agent.....................................103
17.5.2. Distribution by Agent.................................103
17.5.3. Delinquent Banks......................................103
17.6. Holders of Notes................................................104
17.7. Indemnity.......................................................104
17.8. Agent as Bank...................................................104
17.9. Resignation.....................................................104
17.10. Notification of Defaults and Events of Default..................105
17.11. Duties in the Case of Enforcement...............................105
18. EXPENSES AND INDEMNIFICATION.............................................105
18.1. Expenses........................................................105
18.2. Indemnification.................................................106
18.3. Survival........................................................107
19. SURVIVAL OF COVENANTS, ETC...............................................107
20. ASSIGNMENT AND PARTICIPATION.............................................107
20.1. Conditions to Assignment by Banks...............................107
20.2. Certain Representations and Warranties; Limitations; Covenants..108
20.3. Register........................................................109
20.4. New Notes.......................................................109
20.5. Participations..................................................110
20.6. Disclosure......................................................110
20.7. Assignee or Participant Affiliated with the Borrowers...........110
20.8. Miscellaneous Assignment Provisions.............................111
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20.9. Assignment by Borrower..........................................111
21. NOTICES, ETC.............................................................111
22. GOVERNING LAW............................................................112
23. HEADINGS.................................................................112
24. COUNTERPARTS.............................................................113
25. ENTIRE AGREEMENT, ETC....................................................113
26. WAIVER OF JURY TRIAL.....................................................113
27. CONSENTS, AMENDMENTS, WAIVERS, ETC.......................................113
28. SEVERABILITY.............................................................114
29. PARI PASSU TREATMENT.....................................................114
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Exhibits
Exhibit A Form of Revolving Credit Note
Exhibit B Form of Loan Request
Exhibit C Form of Term Note
Exhibit D Form of Compliance Certificate
Exhibit E Form of Borrowing Base Certificate
Exhibit F Form of Assignment and Acceptance
Exhibit G Form of Election
Schedules
Schedule 1 Banks & Commitments
Schedule 1A Account Debtors
Schedule 9.3 Title to Properties
Schedule 9.7 Litigation
Schedule 9.10 Taxes
Schedule 9.14 Certain Transactions
Schedule 9.17 Environmental Compliance
Schedule 9.18 Subsidiaries
Schedule 11.1 Indebtedness
Schedule 11.2 Liens
Schedule 11.3 Investments
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This REVOLVING CREDIT AND TERM LOAN AGREEMENT is made as of March 24,
2000, by and among (a) GENRAD, INC. (the "Company"), a Massachusetts corporation
having its principal place of business at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, (b) GENRAD EUROPE LIMITED ("GenRad Europe"), a private
company limited by shares organized under the laws of England and Wales with
registered number 02873907 and having its registered office at Orion Business
Park, Bird Hall Lane, Stockport, Cheshire SK3 OXG, England, (c) GENRAD LIMITED
("GenRad Ltd."), a private company limited by shares organized under the laws of
the England and Wales with registered number 00790061 and having its registered
office at Orion Business Park, Bird Hall Lane, Stockport, Cheshire SK3 OXG
England, (d) GENRAD HOLDINGS LIMITED ("Holdings" and collectively with GenRad
Europe and GenRad Ltd., the "UK Borrowers" and each individually a "UK
Borrower"), a private company limited by shares organized under the laws of
England and Wales with registered number 01761564 and having its registered
office at Orion Business Park, Bird Hall Lane, Stockport, Cheshire SK3 OKG,
England, (e) FLEET NATIONAL BANK, a national banking association, and the other
lending institutions listed on Schedule 1 hereto, (f) FLEET NATIONAL BANK as
agent for itself and such other lending institutions, and (g) BANKBOSTON, N.A.,
acting through its London Branch, as Overdraft Bank (as hereinafter defined).
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. Definitions. The following terms shall have the meanings set
forth in this ss.1 or elsewhere in the provisions of this Credit Agreement
referred to below:
Accounts Receivable. All rights of the Company or any of its Subsidiaries
to payment for goods sold, leased or otherwise marketed in the ordinary course
of business and all rights of the Company or any of its Subsidiaries to payment
for services rendered in the ordinary course of business and all sums of money
or other proceeds due thereon pursuant to transactions with account debtors,
except for that portion of the sum of money or other proceeds due thereon that
relate to sales, use or property taxes in conjunction with such transactions,
recorded on books of account in accordance with generally accepted accounting
principles.
Adjustment Date. The first day of the month immediately following the
month in which a Compliance Certificate is to be delivered by the Company
pursuant to ss.10.4(c).
Affected Bank. See ss.6.13.
Affiliate. Any Person that would be considered to be an affiliate of any
Borrower under Rule 144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if such Borrower were
issuing securities.
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Agent. Fleet National Bank, acting as agent for the Banks.
Agent's Head Office. The Agent's head office located at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as the Agent may
designate from time to time.
Agent's Special Counsel. ▇▇▇▇▇▇▇ ▇▇▇▇ LLP or such other counsel as may be
approved by the Agent.
Applicable Margin. For each period commencing on an Adjustment Date
through the date immediately preceding the next Adjustment Date (each a "Rate
Adjustment Period"), the Applicable Margin shall be the applicable margin set
forth below with respect to the Company's Leverage Ratio, as determined for the
fiscal period of the Company and its Subsidiaries ending on the fiscal quarter
ended immediately prior to the applicable Rate Adjustment Period.
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Sterling Letter of
Base Rate Base Rate Eurocurrency Credit Commitment
Level Leverage Ratio Loans Loans Rate Loans Fees Fees
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I Greater than or
equal to
1.75:1.00 1.00% 2.00% 2.00% 2.00% .500%
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II Less than
1.75:1.00 but
greater than or
equal to
1.25:1.00 0.75% 1.75% 1.75% 1.75% .500%
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III Less than
1.25:1.00 but
greater than or
equal to
0.75:1.00 0.50% 1.50% 1.50% 1.50% .500%
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IV Less than
0.75:1.00 0.25% 1.25% 1.25% 1.25% .375%
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Notwithstanding the foregoing, (a) for the Loans outstanding, the
Overdraft Facility, Letter of Credit Fees and the Commitment Fee payable during
the period commencing on the Closing Date through the date immediately preceding
the first Adjustment Date to occur after the fiscal quarter ending June 30,
2000, the Applicable Margin shall not be lower than the Applicable Margin set
forth in Level II above, and (b) if the Company fails to deliver any Compliance
Certificate pursuant to ss.10.4(c) hereof then, for the period commencing on the
Adjustment Date to occur subsequent to such failure through the date immediately
following the date on which such Compliance Certificate is delivered, the
Applicable Margin shall be the highest Applicable Margin set forth above.
Applicable Pension Legislation. At any time, any pension or retirement
benefits legislation (be it federal, provincial, territorial or otherwise) then
applicable to any Borrower or any of their Subsidiaries.
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Asset Sale. Any one or series of related transactions on which any Person
conveys, sells, transfers or otherwise disposes of, directly or indirectly, any
of its properties, businesses or assets (including the sale or issuance of
capital stock of any Subsidiary other than to the Company or any Subsidiary)
whether owned on the Closing Date or thereafter acquired.
Assignment and Acceptance. See ss.20.1.
AutoDiagnos. AutoDiagnos AB, a company duly incorporated and existing
under the laws of Sweden.
AutoDiagnos Acquisition. The acquisition by the GenRad Sweden on the
AutoDiagnos Acquisition Closing Date of the capital stock of AutoDiagnos
pursuant to the AutoDiagnos Acquisition Documents.
AutoDiagnos Acquisition Closing Date. The first date on which the
conditions set forth in the AutoDiagnos Purchase Agreement have been satisfied
and the AutoDiagnos Acquisition has occurred.
AutoDiagnos Acquisition Documents. Collectively, the AutoDiagnos Purchase
Agreement and all agreements and documents required to be entered into or
delivered pursuant thereto or in connection with the AutoDiagnos Acquisition,
each in form and substance satisfactory to the Agent.
AutoDiagnos Purchase Agreement. The purchase agreement (or other tender
documents) dated after the Closing Date, together with all schedules, exhibits
and annexes thereto executed and/or delivered in connection with the AutoDiagnos
Acquisition, and in form and substance satisfactory to the Agent.
AutoDiagnos Term Loan. As defined in the definition of "Term Loan".
Balance Sheet Date. January 3, 2000.
Banks. Fleet and the other lending institutions listed on Schedule 1
hereto and any other Person who becomes an assignee of any rights and
obligations of a Bank pursuant to ss.20.
Base Rate. The higher of (a) the annual rate of interest announced from
time to time by Fleet at its head office in Boston, Massachusetts, as its "base
rate" or its "prime rate" and (b) one-half of one percent (1/2%) above the
Federal Funds Effective Rate. For the purposes of this definition, "Federal
Funds Effective Rate" shall mean for any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
funds brokers of recognized
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standing selected by the Agent. The Base Rate is a reference rate and does not
necessarily represent the lowest or best rate being charged to any customer.
Changes in the rate of interest resulting from changes in the Base Rate shall
take place immediately without notice or demand of any kind.
Base Rate Loans. Revolving Credit Loans and all or any portion of the Term
Loans bearing interest calculated by reference to the Base Rate.
Borrower. The Company or any Borrowing Subsidiary and "Borrowers" shall
mean the Company and each Borrowing Subsidiary.
Borrowing Base. At the relevant time of reference thereto, an amount
determined by the Agent by reference to the most recent Borrowing Base Report
delivered to the Banks and the Agent, as adjusted pursuant to the provisions
below, which is equal to the sum of:
(a) 80% of Eligible Accounts Receivable for which invoices have been
issued and are payable; plus
(b) 40% of the Net Book Value of Eligible Inventory.
The Agent may, in its discretion, from time to time, upon five (5) days prior
notice to the Company, (x) reduce the lending formula with respect to Eligible
Accounts Receivable to the extent that the Agent determines that: (i) the
dilution with respect of the Accounts Receivable for any period has increased in
any material respect or may be reasonably anticipated to increase in any
material respect above historical levels, or (ii) the general creditworthiness
of account debtors or other obligors of the Company or any of its Subsidiaries
has declined or (y) reduce the lending formula(s) with respect to Eligible
Inventory to the extent that the Agent determines that: (i) the number of days
of the turnover of the inventory of the Company or any of its Subsidiaries for
any period has changed in any material adverse respect, (ii) the liquidation
value of the Eligible Inventory, or any category thereof, has decreased, or
(iii) the nature and quality of the inventory of the Company or any of its
Subsidiaries has deteriorated in any material respect or the mix of such
inventory has changed materially. In determining whether to reduce the lending
formula(s), the Agent may consider events, conditions, contingencies or risks
which are also considered in determining Eligible Accounts Receivable or
Eligible Inventory.
Borrowing Base Report. A Borrowing Base Report signed by the chief
financial officer or treasurer of the Company and in substantially the form of
Exhibit E hereto.
Borrowing Subsidiary. Each of the UK Borrowers and GenRad Sweden, provided
as to GenRad Sweden, only to the extent GenRad Sweden shall have delivered to
the Agent the election to become a Borrowing Subsidiary in substantially the
form of Exhibit H hereto, duly executed and delivered by GenRad Sweden and the
Company (and which request shall have been approved in writing by the Agent),
together with all documents required by such request.
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Business Day. Any day other than a Saturday or Sunday on which banking
institutions in Boston, Massachusetts, are open for the transaction of banking
business and, in addition, (a) if Eurocurrency Rate Loans denominated in Dollars
are involved, a day which is also a day in which commercial banks are open for
international business (including dealings in Dollar deposits) in London or such
other Eurocurrency Interbank Market as may be selected by the Agent in its sole
discretion acting in good faith; and (b) if Eurocurrency Rate Loans denominated
in an Optional Currency or Sterling Base Rate Loans are involved, a day (i) on
which dealings and exchange in Dollars and the relevant Optional Currency can be
carried on in the relevant Eurocurrency Interbank Market and Dollar settlements
of such dealings may be effected, in New York, New York and London, England, and
(ii) on which dealings in Dollars and the relevant Optional Currency and
exchange can be carried on in the principal financial center of the country in
which such currency is legal tender.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); provided that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with generally accepted
accounting principles.
Capital Expenditures. Amounts paid or Indebtedness incurred by the Company
or any of its Subsidiaries in connection with (a) the purchase or lease by the
Company or any of its Subsidiaries of Capital Assets that would be required to
be capitalized and shown on the balance sheet of such Person in accordance with
generally accepted accounting principles or (b) the lease of any assets by the
Company or any of its Subsidiaries as lessee under any Synthetic Lease to the
extent that such assets would have been Capital Assets had the Synthetic Lease
been treated for accounting purposes as a Capitalized Lease.
Capitalization Documents. Collectively, the formation documents (including
without limitation any certificate of incorporation and by-laws or memorandum
and articles of association) of the Company and its Subsidiaries.
Capitalized Leases. Leases under which the Company or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with generally accepted accounting
principles.
Cash Equivalents. As to the Company and its Subsidiaries, (a) securities
issued or directly and fully guaranteed or insured by the United States of
America and having a maturity of not more than six (6) months from the date of
acquisition; (b) certificates of deposit and eurodollar time deposits with
maturities of six (6) months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six (6) months and overnight bank
deposits, in each case, (i) with any Bank or (ii) with any domestic commercial
bank organized under the laws of the United States of America or any state
thereof and foreign subsidiaries of such bank, having a rating of not less than
A or its equivalent by S&P or any successor and having capital and surplus in
excess of
-6-
$300,000,000; (c) repurchase obligations with a term of not more than
seven (7) days for underlying securities of the types described in clauses (a)
and (b) entered into with any financial institution meeting the qualifications
in clause (b) above; and (d) any commercial paper or finance company paper
issued by (i) any Bank or any holding company controlling any Bank or (ii) any
other Person that is rated not less than prime-two or A2 or their equivalents by
▇▇▇▇▇'▇ Investor Service, Inc. or S&P or their successors.
CERCLA. See ss.9.17(a).
Closing Date. The first date on which the conditions set forth in ss.13
have been satisfied and any Revolving Credit Loans, advances under the Overdraft
Facility, and the Term Loans are to be made or any Letter of Credit is to be
issued hereunder.
Code. The Internal Revenue Code of 1986.
Collateral. All of the property, rights and interests of the Company and
its Subsidiaries that are or are intended to be subject to the security
interests created by the Security Documents.
Commitment. With respect to each Bank, the amount set forth on Schedule 1
hereto as the amount of such Bank's commitment to make Revolving Credit Loans to
(including its commitment to fund its portion of the Overdraft Facility pursuant
to ss.2.10(e)), and to participate in the issuance, extension and renewal of
Letters of Credit for the respective accounts of, any Borrower, as the same may
be reduced from time to time; or if such commitment is terminated pursuant to
the provisions hereof, zero.
Commitment Fee. Collectively, the Revolver Commitment Fee and the Unused
Term Loan Commitment Fee.
Commitment Fee Rate. The applicable rate per annum set forth in the chart
contained in the definition of Applicable Margin under the heading "Commitment
Fee".
Commitment Percentage. With respect to each Bank, the percentage set forth
on Schedule 1 hereto as such Bank's percentage of the aggregate Commitments of
all of the Banks, and with respect to the Term Loans, the percentage amount set
forth on Schedule 1 of such Bank's commitment to make the Term Loans.
Company. As defined in the preamble hereto.
Compliance Certificate. See ss.10.4(c) hereof.
Consolidated or consolidated. With reference to any term defined herein,
shall mean that term as applied to the accounts of the Company and its
Subsidiaries, consolidated in accordance with generally accepted accounting
principles.
Consolidated Current Liabilities. All liabilities of the Company and its
Subsidiaries on a consolidated basis maturing on demand or within one (1) year
from
-7-
the date as of which Consolidated Current Liabilities are to be determined,
and such other liabilities as may properly be classified as current liabilities
in accordance with generally accepted accounting principles and including all
outstanding Revolving Credit Loans, Unpaid Reimbursement Obligations and the
Maximum Drawing Amount of all issued and outstanding Letters of Credit, whether
or not classified.
Consolidated Net Income (or Deficit). The consolidated net income (or
deficit) of the Company and its Subsidiaries, after deduction of all expenses,
taxes, and other proper charges, determined in accordance with generally
accepted accounting principles, after eliminating therefrom all extraordinary
items of income.
Consolidated Net Operating Income (or Deficit). For any period, an amount
equal to (a) EBITDA for such period less (b) amortization and depreciation for
such period.
Consolidated Operating Cash Flow. For any period, an amount equal to (a)
EBITDA for such period, less (b) the sum of (i) cash payments for all taxes paid
during such period, plus (ii) to the extent not already deducted in the
determination of EBITDA, Capital Expenditures made during such period, plus
(iii) that portion of the costs of software development required to be
capitalized pursuant to FASB Statement No. 86 for such period.
Consolidated Quick Assets. All cash, Cash Equivalents and Accounts
Receivable of the Company and its Subsidiaries on a consolidated basis that, in
accordance with generally accepted accounting principles, are properly
classified as current assets, provided that Accounts Receivable shall be
included only if good and collectible as determined by the Company in accordance
with established practice consistently applied and only if payable and
outstanding not more than ninety (90) days after the date of the shipment of
goods or other transaction out of which such Accounts Receivable arise; and such
Accounts Receivable shall be taken at their face value less reserves determined
to be sufficient in accordance with generally accepted accounting principles.
Consolidated Total Debt Service. With respect to the Company and its
Subsidiaries and for any period, the sum, without duplication, of (a)
Consolidated Total Interest Expense for such period plus (b) any and all
scheduled repayments of principal during such period in respect of Indebtedness
that becomes due and payable or that are to become due and payable during such
period pursuant to any agreement or instrument to which the Company or any of
its Subsidiaries is a party relating to (i) the borrowing of money or the
obtaining of credit, (ii) the deferred purchase price of assets (other than
trade payables incurred in the ordinary course of business), (iii) in respect of
any Synthetic Lease or any Capitalized Leases, (iv) in respect of any
reimbursement obligations in respect of letters of credit or bankers acceptance
due and payable during such period, and (v) Indebtedness described above of
another Person guaranteed by the Company or any of its Subsidiaries. Demand
obligations shall be deemed to be due and payable during any fiscal period
during which such obligations are outstanding.
-8-
Consolidated Total Interest Expense. For any period, the aggregate amount
of interest required to be paid or accrued by the Company and its Subsidiaries
during such period on all Indebtedness of the Company and its Subsidiaries
outstanding during all or any part of such period, whether such interest was or
is required to be reflected as an item of expense or capitalized, including
payments consisting of interest in respect of any Capitalized Lease or any
Synthetic Lease, and including commitment fees, agency fees, facility fees,
balance deficiency fees and similar fees or expenses in connection with the
borrowing of money.
Consolidated Total Liabilities. All liabilities of the Company and its
Subsidiaries determined on a consolidated basis in accordance with generally
accepted accounting principles and all Indebtedness of the Company and its
Subsidiaries, whether or not so classified.
Conversion Request. A notice given by a Borrower to the Agent of such
Borrower's election to convert or continue a Loan in accordance with ss.2.7.
Credit Agreement. This Revolving Credit and Term Loan Agreement, including
the Schedules and Exhibits hereto.
Default. See ss.15.1.
Delinquent Bank. See ss.17.5.3.
Distribution. The declaration or payment of any dividend on or in respect
of any shares of any class of capital stock of any Borrower, other than
dividends payable solely in shares of common stock of such Borrower; the
purchase, redemption, or other retirement of any shares of any class of capital
stock of any Borrower, directly or indirectly through a Subsidiary of such
Borrower or otherwise; the return of capital by any Borrower to its shareholders
as such; or any other distribution on or in respect of any shares of any class
of capital stock of such Borrower.
Dollar Equivalent. On any particular date, with respect to any amount
denominated in Dollars, such amount in Dollars, and with respect to any amount
denominated in a currency other than Dollars, the amount (as conclusively
ascertained by the Agent absent manifest error) of Dollars which could be
purchased by the Agent (in accordance with its normal banking practices) in the
London foreign currency deposit market with such amount of such currency at the
spot rate of exchange prevailing at or about 11:00 a.m. (London time) on such
date.
Dollars or $. Dollars in lawful currency of the United States of America.
Domestic Lending Office. Initially, the office of each Bank designated as
such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
located within the United States that will be making or maintaining Base Rate
Loans.
Domestic Subsidiary. Any Subsidiary which is not a Foreign Subsidiary.
-9-
Drawdown Date. The date on which any Revolving Credit Loan or any Term
Loan is made or is to be made, and the date on which any Revolving Credit Loan
is converted or continued in accordance with ss.2.7 or all or any portion of any
Term Loan is converted or continued in accordance with ss.4.6.
EBITDA. With respect to any fiscal period, an amount equal to the sum of
(a) Consolidated Net Income of the Company and its Subsidiaries for such fiscal
period, plus (b) in each case to the extent deducted in the calculation of such
Person's Consolidated Net Income and without duplication, (i) depreciation and
amortization for such period, plus (ii) income tax expense for such period, plus
(iii) Consolidated Total Interest Expense paid or accrued during such period,
plus (iv) other noncash charges for such period, and minus, to the extent added
in computing Consolidated Net Income, and without duplication, all noncash gains
(including income tax benefits) for such period, all as determined in accordance
with generally accepted accounting principles.
EMU. The European Economic and Monetary Union formed pursuant to the EU
Treaties.
Eligible Accounts Receivable. The aggregate of the unpaid portions of
Accounts Receivable (net of any credits, rebates, offsets, holdbacks or other
adjustments or commissions payable to third parties that are adjustments to such
Accounts Receivable) (a) that the Company reasonably and in good faith
determines to be collectible; (b) that are with account debtors or other
obligors that (i) are not Affiliates of the Company or any Subsidiary, (ii)
purchased the goods or services giving rise to the relevant Account Receivable
in an arm's length transaction, (iii) are not insolvent or involved in any case
or proceeding, whether voluntary or involuntary, under any bankruptcy,
reorganization, arrangement, insolvency, adjustment of debt, dissolution,
liquidation or similar law of any jurisdiction and (iv) are, in the Agent's
reasonable judgment, creditworthy; (c) that are in payment of obligations that
have been fully performed, do not consist of progress ▇▇▇▇▇▇▇▇ or ▇▇▇▇ and hold
invoices and are not subject to dispute or any other similar claims that would
reduce the cash amount payable therefor; (d) that are not subject to any pledge,
restriction, security interest or other lien or encumbrance other than those
created by the Loan Documents; (e) as to Accounts Receivable of a Borrower or
Guarantor, in which the Agent has a valid and perfected first priority security
interest; (f) that are not outstanding for more than ninety (90) days past the
earlier to occur of (i) the date of the respective invoices therefor and (ii)
the date of shipment thereof in the case of goods or the end of the calendar
month following the provision thereof in the case of services; (g) that are not
due from an account debtor or other obligor located in Minnesota unless the
Company or the applicable Subsidiary, as the case may be, (i) has received a
certificate of authority to do business and is in good standing in such state or
(ii) has filed a notice of business activities report with the appropriate
office or agency of such state for the current year; (h) that are not due from
any single account debtor or other obligor if more than fifteen percent (15%) of
the aggregate amount of all Accounts Receivable owing from such account debtor
or other obligor would otherwise not be Eligible Accounts Receivable; (i) that
are payable in Dollars or such other currency as is acceptable to the Agent; (j)
that are not payable from an office outside of the United States, Canada, the
United Kingdom (except those
-10-
Accounts Receivable owing from the account debtors set forth on Schedule 1A
hereto) and such other jurisdictions as are acceptable to the Agent; and (k)
that are not secured by a letter of credit unless the Agent has a prior,
perfected security interest in such letter of credit.
Eligible Assignee. Any of (a) a commercial bank or finance company
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (b) a
savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with generally
accepted accounting principles; (c) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, provided that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (d) the central
bank of any country which is a member of the OECD; and (e) if, but only if, any
Event of Default has occurred and is continuing, any other bank, insurance
company, commercial finance company or other financial institution or other
Person approved by the Agent, such approval not to be unreasonably withheld.
Eligible Inventory. With respect to the Company or any of its
Subsidiaries, finished goods inventory owned by the Company or such Subsidiary
provided that Eligible Inventory shall not include any inventory (a) held on
consignment, or not otherwise owned by the Company or such Subsidiary, or of a
type no longer sold by the Company or such Subsidiary, (b) which has been
returned by a customer or is damaged or subject to any legal encumbrance other
than Permitted Liens, (c) which is not in the possession of the Company or such
Subsidiary unless the Agent has received a waiver from the party in possession
of such inventory in form and substance satisfactory to the Agent, (d) which is
held by the Company or such Subsidiary on property leased by the Company or such
Subsidiary, unless the Agent has received a waiver from the lessor of such
leased property and, if any, sublessor thereof in form and substance
satisfactory to the Agent, (e) as to inventory of a Borrower or Guarantor, as to
which appropriate Uniform Commercial Code financing statements or other similar
filings in the relevant jurisdictions outside of the United States showing the
Company as debtor and the Agent as secured party have not been filed in the
proper filing office or offices in order to perfect the Agent's security
interest therein, (f) which has been shipped to a customer of the Company or
such Subsidiary regardless of whether such shipment is on a consignment basis,
(g) which is not located within the United States of America or such other
jurisdiction as is acceptable to the Agent, or (h) which the Agent reasonably
deems to be obsolete or not marketable.
Employee Benefit Plan. Any employee benefit plan within the meaning of
ss.3(3) of ERISA or other Applicable Pension Legislation maintained or
contributed to by any Borrower or any ERISA Affiliate, other than a Guaranteed
Pension Plan or a Multiemployer Plan.
-11-
Environmental Laws. See ss.9.17(a).
EPA. See ss.9.17(b).
Equity Issuance. The sale or issuance by the Company or any of its
Subsidiaries of any of its capital stock or equity interests or any warrants,
rights, or options to acquire its capital stock or equity interests.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single employer with any
Borrower under ss.414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of ss.4043 of ERISA and the regulations
promulgated thereunder.
Euro or e: The single currency of Participating Member States.
Eurocurrency Interbank Market. Any lawful recognized market in which
deposits of Dollars and the relevant Optional Currencies are offered by
international banking units of United States banking institutions and by foreign
banking institutions to each other and in which foreign currency and exchange
operations or eurocurrency funding operations are customarily conducted.
Euro Interbank Rate: With respect to any Revolving Credit Loan denominated
or to be denominated in Euros, the annual rate of interest at which the Agent is
able to obtain deposits for comparable amounts in Euros for the relevant
Interest Period in the London interbank market for a period comparable to the
duration of such Interest Period, as determined by the Agent.
Eurocurrency Lending Office. Initially, the office of each Bank designated
as such on Schedule 1 hereto; thereafter, such other office of such Bank, if
any, that shall be making or maintaining Eurocurrency Rate Loans.
Eurocurrency Offered Rate. With respect to the Interest Period of any
Eurocurrency Rate Loan denominated in a currency other than Dollars, the rate
per annum (rounded upwards to the nearest 1/16 of one percent) equal to the rate
at which the Agent is offered deposits in the relevant Optional Currency two (2)
Business Days prior to the beginning of such Interest Period in the Eurocurrency
Interbank Market where the foreign currency and exchange operations or
eurocurrency funding operations of the Agent are customarily conducted at or
about 11:00 a.m. (London time) for delivery on the first day of such Interest
Period and for the number of days comprised therein and in an amount equal (as
nearly as may be) to the Eurocurrency Rate Loan to which such Interest Period
applies.
-12-
Eurocurrency Rate. With respect to amounts denominated in Dollars, the
Eurodollar Rate, and with respect to amounts denominated in any currency other
than Dollars, the International Eurocurrency Rate.
Eurocurrency Rate Loans. Revolving Credit Loans and all or any portion of
the Term Loan bearing interest calculated by reference to the Eurocurrency Rate.
Eurocurrency Reserve Rate. For any day with respect to a Eurocurrency Rate
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
Eurodollar Rate. For any Interest Period with respect to a Eurocurrency
Rate Loan denominated in Dollars, the rate of interest equal to (a) the rate per
annum (rounded upwards to the nearest 1/16 of one percent) at which the Agent's
Eurocurrency Lending Office is offered Dollar deposits at approximately 11:00
a.m. (London time) two (2) Business Days prior to the beginning of such Interest
Period in the Eurocurrency Interbank Market where the eurodollar and foreign
currency and exchange operations of such Eurocurrency Lending Office are
customarily conducted, for delivery on the first day of such Interest Period for
the number of days comprised therein and in an amount comparable to the amount
of the Eurocurrency Rate Loan denominated in Dollars to which such Interest
Period applies, divided by (b) a number equal to 1.00 minus the Eurocurrency
Reserve Rate, if applicable.
European Obligations. All Obligations of the Borrowing Subsidiaries and
all Obligations of GenRad Ireland or any other Foreign Subsidiary which is or
may be a Guarantor hereunder pursuant to its Guarantee.
EU Treaties. The treaty establishing the European Community being the
Treaty of Rome of 25 March 1957 as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and
by the Treaty on European Union which was signed at Maastricht on 7 February
1992 (and came into being on November ▇, ▇▇▇▇), (▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Treaty) as
further amended from time to time.
Event of Default. See ss.15.1.
Fee Letter. The Fee Letter dated on or prior to the Closing Date among the
Company, FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. and the Agent.
Fleet. Fleet National Bank, a national banking association, in its
individual capacity.
-13-
Foreign Subsidiaries. Any Subsidiary (direct or indirect, existing on the
date hereof or acquired or formed hereafter in accordance with the provisions
hereof) of the Company that conducts substantially all of its business in
countries other than the United States of America and that is organized under
the laws of a jurisdiction other than the United States of America and the
states (or the District of Columbia) thereof.
generally accepted accounting principles. (a) When used in ss.12, whether
directly or indirectly through reference to a capitalized term used therein,
means (i) principles that are consistent with the principles promulgated or
adopted by the Financial Accounting Standards Board and its predecessors, in
effect for the fiscal year (or financial year, as applicable) ended on the
Balance Sheet Date, and (ii) to the extent consistent with such principles, the
accounting practice of the Company reflected in its financial statements for the
year ended on the Balance Sheet Date, and (b) when used in general, other than
as provided above, means principles that are (i) consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors (or its equivalent in any Person's jurisdiction of organization),
as in effect from time to time, and (ii) consistently applied with past
financial statements of the Company adopting the same principles, provided that
in each case referred to in this definition of "generally accepted accounting
principles" a certified public accountant in the relevant jurisdiction would,
insofar as the use of such accounting principles is pertinent, be in a position
to deliver an unqualified opinion (other than a qualification regarding changes
in generally accepted accounting principles) as to financial statements in which
such principles have been properly applied.
GenRad Ireland. A wholly-owned Subsidiary of the Company organized under
the laws of Ireland and originally known as Tavstock Limited.
GenRad Sweden. A wholly-owned Subsidiary of the Company organized under
the laws of Sweden and which will be effecting the AutoDiagnos Acquisition.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of ss.3(2) of ERISA maintained or contributed to by any Borrower or any
ERISA Affiliate the benefits of which are guaranteed on termination in full or
in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Guarantors. Collectively, (a) each Domestic Subsidiary of the Company
existing on the Closing Date and each other Person which is required to be or
become a guarantor from time to time pursuant to ss.10.16(b); (b) each Borrowing
Subsidiary other than GenRad Sweden; (c) GenRad Ireland; and (d) each other
Person which is required to be or become a guarantor from time to time pursuant
to ss.10.16(b). Each such Person shall be a party to a Guarantee.
Guarantees. Collectively, (a) the Guaranty dated on or prior to the
Closing Date (or such later date as is required by ss.10.16(a)) from each
Domestic Subsidiary which is a Guarantor in favor of the Agent and the Banks;
(b) the Guaranty dated on or prior to the Closing Date from GenRad Ireland and
each Borrowing Subsidiary other than GenRad Sweden in favor of the Agent and the
Banks; and (c) the Guarantees dated as of the date
-14-
required by ss.10.16(b) from each Person required to become a Guarantor pursuant
to ss.10.16(b) in favor of the Agent and the Banks, and in each case in form and
substance satisfactory to the Agent and the Banks.
Hazardous Substances. See ss.9.17(b).
Indebtedness. As to any Person and whether recourse is secured by or is
otherwise available against all or only a portion of the assets of such Person
and whether or not contingent, but without duplication:
(a) every obligation of such Person for money borrowed,
(b) every obligation of such Person evidenced by bonds, debentures,
notes or other similar instruments, including obligations incurred in
connection with the acquisition of property, assets or businesses,
(c) every reimbursement obligation of such Person with respect to
letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person,
(d) every obligation of such Person issued or assumed as the
deferred purchase price of property or services (including without
limitation securities repurchase agreements and any earn-outs or similar
obligations with respect to acquisitions permitted hereunder, but
excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business which are not overdue or which are being
contested in good faith),
(e) every obligation of such Person under any Capitalized Lease,
(f) every obligation of such Person under any lease (a "Synthetic
Lease") treated as an operating lease under generally accepted accounting
principles and as a loan or financing for U.S. income tax purposes, or
treated similarly by the relevant taxing authority of a non-U.S.
jurisdiction,
(g) all sales by such Person of (i) accounts or general intangibles
for money due or to become due, (ii) chattel paper, instruments or
documents creating or evidencing a right to payment of money or (iii)
other receivables (collectively "receivables"), whether pursuant to a
purchase facility or otherwise, other than in connection with the
disposition of the business operations of such Person relating thereto or
a disposition of defaulted receivables for collection and not as a
financing arrangement, and together with any obligation of such Person to
pay any discount, interest, fees, indemnities, penalties, recourse,
expenses or other amounts in connection therewith,
(h) every obligation of such Person (an "equity related purchase
obligation") to purchase, redeem, retire or otherwise acquire for value
any shares of capital stock of any class issued by such Person, any
warrants, options or other
-15-
rights to acquire any such shares, or any rights measured by the value of
such shares, warrants, options or other rights,
(i) every obligation of such Person under any forward contract,
futures contract, swap, option or other financing agreement or arrangement
(including, without limitation, caps, floors, collars and similar
agreements), the value of which is dependent upon interest rates, currency
exchange rates, commodities or other indices (a "derivative contract"),
(j) every obligation in respect of Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to
the extent that such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity,
except to the extent that the terms of such Indebtedness provide that such
Person is not liable therefor and such terms are enforceable under
applicable law,
(k) every obligation, contingent or otherwise, of such Person
guaranteeing, or having the economic effect of guarantying or otherwise
acting as surety for, any obligation of a type described in any of clauses
(a) through (j) (the "primary obligation") of another Person (the "primary
obligor"), in any manner, whether directly or indirectly, and including,
without limitation, any obligation of such Person (i) to purchase or pay
(or advance or supply funds for the purchase of) any security for the
payment of such primary obligation, (ii) to purchase property, securities
or services for the purpose of assuring the payment of such primary
obligation, or (iii) to maintain working capital, equity capital or other
financial statement condition or liquidity of the primary obligor so as to
enable the primary obligor to pay such primary obligation.
The "amount" or "principal amount" of any Indebtedness at any time of
determination represented by (u) any Indebtedness, issued at a price that is
less than the principal amount at maturity thereof, shall be the amount of the
liability in respect thereof determined in accordance with generally accepted
accounting principles, (v) any Capitalized Lease shall be the principal
component of the aggregate of the rentals obligation under such Capitalized
Lease payable over the term thereof that is not subject to termination by the
lessee, (w) any sale of receivables shall be the amount of unrecovered capital
or principal investment of the purchaser (other than the Borrower or any of its
wholly-owned Subsidiaries) thereof, excluding amounts representative of yield or
interest earned on such investment, (x) any Synthetic Lease shall be the
stipulated loss value, termination value or other equivalent amount, (y) any
derivative contract shall be the maximum amount of any termination or loss
payment required to be paid by such Person if such derivative contract were, at
the time of determination, to be terminated by reason of any event of default or
early termination event thereunder, whether or not such event of default or
early termination event has in fact occurred and (z) any equity related purchase
obligation shall be the maximum fixed redemption or purchase price thereof
inclusive of any accrued and unpaid dividends to be comprised in such redemption
or purchase price.
-16-
Ineligible Securities. Securities which may not be underwritten or dealt
with in by member banks of the Federal Reserve System under Section 16 of the
Banking Act of 1933 (12 U.S.C.ss.24, Seventh), as amended.
Insolvency Event. Any of the following events or circumstances: (a) any
Borrower, Guarantor or any of their respective Subsidiaries organized in the
United Kingdom shall be deemed unable to pay its debts within the meaning of
section 123(1) (a), (b), or (2) of the ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇ ▇▇▇▇▇▇▇) or
shall otherwise become insolvent or stop or suspend making payments (whether of
principal or interest) with respect to all or any class of its Indebtedness or
announce an intention to do so, (b) a meeting shall be convened by any such
Borrower, Guarantor or any of their respective Subsidiaries for the purpose of
passing any resolution to purchase, reduce or redeem any of its capital stock or
to comply with section 142 of the Companies ▇▇▇ ▇▇▇▇ (England), (c) any petition
shall be presented or other step taken for the purpose of the appointment of an
administrator or the winding up of any such Borrower, Guarantor or any of their
respective Subsidiaries (not being, in the case of a winding up, a petition
which such Person can demonstrate to the reasonable satisfaction of the Agent,
by providing an opinion of leading counsel to that effect, is frivolous,
vexatious or an abuse of the process of the court or relates to a claim to which
such Person has a good defense and which is being vigorously contested by such
Person) or an order shall be made or resolution passed for the winding up of any
such Borrower, Guarantor or any of their respective Subsidiaries or a notice
shall be issued by convening a meeting for the purpose of passing any such
resolution (except for the purpose of a solvent amalgamation or reconstitution
which shall have been approved by the Agent), or (d) any steps shall be taken,
or negotiations commenced by any such Borrower, Guarantor or any of their
respective Subsidiaries or by any of their respective creditors with a view to
proposing any kind of composition, compromise or arrangement involving such
Person and any of its creditors or for the presentation of a petition for the
appointment of an administrator.
Intercompany Notes. Promissory notes issued or to be issued among the
Company and its Subsidiaries from time to time in the form of Exhibit G hereto
and pledged and delivered by the holder thereof to the Agent for the benefit of
the Banks as collateral security for the Obligations.
Interest Payment Date. (a) As to any Base Rate Loan, the last day of the
calendar quarter with respect to interest accrued during such calendar quarter,
including, without limitation, the calendar quarter which includes the Drawdown
Date of such Base Rate Loan; and (b) as to any Eurocurrency Rate Loan in respect
of which the Interest Period is (i) 3 months or less, the last day of such
Interest Period and (ii) more than 3 months, the date that is 3 months from the
first day of such Interest Period and, in addition, the last day of such
Interest Period.
Interest Period. With respect to each Revolving Credit Loan or all or any
relevant portion of the Term Loan, (a) initially, the period commencing on the
Drawdown Date of such Loan and ending on the last day of one of the periods set
forth below, as selected by the relevant Borrower in a Loan Request or as
otherwise required
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by the terms of this Credit Agreement (i) for any Base Rate Loan, the last day
of the calendar quarter; and (ii) for any Eurocurrency Rate Loan, 1, 2, 3, or 6
months; and (b) thereafter, each period commencing on the last day of the next
preceding Interest Period applicable to such Revolving Credit Loan or all or
such portion of the Term Loan and ending on the last day of one of the periods
set forth above, as selected by such Borrower in a Conversion Request; provided
that all of the foregoing provisions relating to Interest Periods are subject to
the following:
(a) if any Interest Period with respect to a Eurocurrency Rate Loan
would otherwise end on a day that is not a Business Day, that Interest
Period shall be extended to the next succeeding Business Day unless the
result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on
the immediately preceding Business Day;
(b) if any Interest Period with respect to a Base Rate Loan would
end on a day that is not a Business Day, that Interest Period shall end on
the next succeeding Business Day;
(c) if such Borrower shall fail to give notice as provided in
ss.2.7, (i) for Loans denominated in Dollars, such Borrower shall be
deemed to have requested a conversion of the affected Eurocurrency Rate
Loan to a Base Rate Loan and the continuance of all Base Rate Loans as
Base Rate Loans on the last day of the then current Interest Period with
respect thereto and (ii) for Revolving Credit Loans denominated in any
Optional Currency, such Borrower shall repay such Revolving Credit Loan on
the last day of the then current Interest Period with respect thereto;
(d) any Interest Period relating to any Eurocurrency Rate Loan that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of a calendar
month; and
(e) any Interest Period that would otherwise extend beyond the
Revolving Credit Loan Maturity Date (if comprising a Revolving Credit
Loan) or the Term Loan Maturity Date (if comprising the Term Loan or a
portion thereof) shall end on the Revolving Credit Loan Maturity Date or
(as the case may be) the Term Loan Maturity Date.
Interest Rate Agreement. Any interest rate swap agreement, interest rate
cap agreement, interest rate collar agreement, interest rate futures contract,
interest rate option agreement or other similar agreement or arrangement to
which the Company and any Bank is a party, designed to protect the Company
against fluctuations in interest rates.
International Eurocurrency Rate. With respect to all Eurocurrency Rate
Loans denominated in an Optional Currency for any Interest Period, the annual
rate of interest,
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rounded to the nearest 1/16th of one percent (1/16%),
determined by the Agent for such Interest Period in accordance with the
following formula:
Eurocurrency Offered Rate
International Eurocurrency Rate = ------------------------------
1 - Eurocurrency Reserve Rate
International Standby Practices. With respect to any Standby Letter of
Credit, International Standby Practices (ISP98), International Chamber of
Commerce Publication No. 590, or any successor code of standby letter of credit
practices among banks adopted by the Agent in the ordinary course of its
business as a standby letter of credit issuer and in effect at the time of
issuance of such Letter of Credit.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
amount of Investments outstanding at any particular time: (a) the amount of any
Investment represented by a guaranty shall be taken at not less than the
principal amount of the obligations guaranteed and still outstanding; (b) there
shall be included as an Investment all interest accrued with respect to
Indebtedness constituting an Investment unless and until such interest is paid;
(c) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
Letter of Credit. See ss.5.1.1.
Letter of Credit Application. See ss.5.1.1.
Letter of Credit Fee. See ss.5.6.
Letter of Credit Participation. See ss.5.1.4.
Leverage Ratio. As at any date of determination, the ratio of (a) Total
Funded Indebtedness of the Company and its Subsidiaries outstanding on such date
to (b) the EBITDA of the Company and its Subsidiaries for the Reference Period
ending on such date, provided, however, when calculating the Leverage Ratio for
any period in which a Permitted Acquisition has occurred, the calculation of the
Leverage Ratio shall be on a Pro Forma Basis.
Loan Documents. This Credit Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit, the Fee Letter and the Security Documents.
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Loan Request. See ss.2.6.
Loans. The Revolving Credit Loans and the Term Loans.
Majority Banks. As of any date, (a) if there are less than three (3) Banks
on such date, all Banks, and (b) if there are three (3) or more Banks on such
date, no less than two (2) Banks holding at least fifty-one percent (51%) of the
outstanding principal amount of the Notes on such date, plus the unused portion
of the Commitments on such date, plus the Maximum Drawing Amount of all issued
and outstanding Letters of Credit on such date, plus such Banks' undrawn portion
of the Term Loan on such date; and if no such principal is outstanding, the
Banks whose aggregate Commitments constitutes at least fifty-one percent (51%)
of the Total Commitment.
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Maximum Overdraft Amount. The Dollar equivalent of (pound)2,000,000, as
the same may be reduced from time to time; or if the Overdraft Facility is
terminated pursuant to the provisions hereof, zero.
Multiemployer Plan. Any multiemployer plan within the meaning ofss.3(37)
of ERISA maintained or contributed to by any Borrower or any ERISA Affiliate.
Net Book Value. At the relevant time of reference thereto, the net book
value of Eligible Inventory determined on a first-in first-out basis and at
lower of cost or market. The "cost" of any Eligible Inventory shall be the
lesser of (a) the calculated cost of purchases, as determined from invoices
received by the Company or any of its Subsidiaries, or from the Company's or
such Subsidiary's purchase journal or stock ledger (based upon the Company's
accounting practices, disclosed to the Agent and in effect on the date hereof
or, if hereafter modified, modified in accordance with generally accepted
accounting principles and disclosed to the Agent prior to such modification) and
(b) the lowest ticketed or promoted price at which such Eligible Inventory is
offered to the public, after all ▇▇▇▇-▇▇▇▇▇ (whether or not such price is then
reflected in the accounting system of the Company or such Subsidiary). "Cost"
does not include inventory capitalization costs or other non-purchase price
charges (such as freight) used in the Company's or such Subsidiary's calculation
of the cost of goods sold.
Net Cash Proceeds. With respect to any Equity Issuances, the excess of the
gross cash proceeds received by such Person for such Equity Issuance after
deduction of all reasonable and customary transaction expenses (including
without limitation, underwriting discounts and commissions) actually incurred in
connection with such a sale or other issuance.
Net Cash Sale Proceeds. The net cash proceeds received by a Person in
respect of any Asset Sale, less the sum of (a) all reasonable out-of-pocket
fees, commissions and
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other reasonably and customary expenses actually incurred in connection with
such Asset Sale, including the amount of income, franchise, sales and other
applicable taxes required to be paid by such Person in connection with such
Asset Sale, and (b) the aggregate amount of cash so received by such Person
which is required to be used to retire (in whole or in part) any Indebtedness
(other than under the Loan Documents) of such Person permitted by this Credit
Agreement that was secured by a lien or security interest permitted by this
Credit Agreement having priority over the liens and security interests (if any)
of the Agent (for the benefit of the Agent and the Banks) with respect to such
assets transferred and which is required to be repaid in whole or in part (which
repayment, in the case of any other revolving credit arrangement or multiple
advance arrangement, reduces the commitment thereunder) in connection with such
Asset Sale.
Nicolet. The Nicolet Imaging Systems division of ThermoSpectra
Corporation.
Nicolet Acquisition. The acquisition by the Company on the Nicolet
Acquisition Closing Date of Nicolet and the capital stock of Sierra pursuant to
the Nicolet Acquisition Documents.
Nicolet Acquisition Closing Date. The first date on which the conditions
set forth in the Nicolet Purchase Agreement have been satisfied and the Nicolet
Acquisition has occurred.
Nicolet Acquisition Documents. Collectively, the Nicolet Purchase
Agreement and all agreements and documents required to be entered into or
delivered pursuant thereto or in connection with the Nicolet Acquisition, each
in form and substance satisfactory to the Agent.
Nicolet Purchase Agreement. The Purchase and Sale Agreement dated as of
March 24, 2000, between ThermoSpectra Corporation and GenRad, Inc., together
with all schedules, exhibits and annexes thereto.
Nicolet Term Loan. As defined in the definition of "Term Loan".
Non-Affected Banks. As at any date of determination, those Banks which are
not Affected Banks.
Notes. The Term Notes and the Revolving Credit Notes.
Obligations. All indebtedness, obligations and liabilities of any Borrower
and its Subsidiaries to any of the Banks and the Agent, individually or
collectively, existing on the date of this Credit Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or incurred under this
Credit Agreement or any of the other Loan Documents or any Interest Rate
Agreement or in respect of any of the Loans made (including advances under the
Overdraft Facility) or Reimbursement Obligations incurred or any of the Notes,
Letter of
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Credit Application, Letter of Credit or other instruments at any time evidencing
any thereof.
OC Notice. See ss.2.9.1 hereof.
Optional Currency. Sterling or Euro, provided such currency is freely
convertible into Dollars and is traded on any recognized Eurocurrency Interbank
Market selected by the Agent in good faith.
outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
Overdraft Bank. BankBoston, N.A., a national banking association, acting
through its London branch.
Overdraft Facility. See ss.2.10.
Overnight Rate. For any day, (a) as to Revolving Credit Loans denominated
in Dollars, the weighted average interest rate paid by the Agent for federal
funds acquired by the Agent, and (b) as to Revolving Credit Loans denominated in
an Optional Currency, the rate of interest per annum at which overnight deposits
in the applicable Optional Currency, in an amount approximately equal to the
amount with respect to which such rate is being determined, would be offered for
such day by the Agent to major banks in the London interbank market.
Participating Member State. A member state of the European Union that
adopts a single currency in accordance with the EU Treaties.
Patent Assignments. Collectively, (a) the several Patent Assignments made
by the Company and certain of its Subsidiaries in favor of the Agent and (b)
Charge Over Intellectual Property, each dated on or prior to the Closing Date
and each in form and substance satisfactory to the Banks and the Agent.
PBGC. The Pension Benefit Guaranty Corporation created by ss.4002 of ERISA
and any successor entity or entities having similar responsibilities.
Perfection Certificates. The Perfection Certificates as defined in the
Security Agreements.
Permitted Acquisition. See ss.11.5.1.
Permitted Liens. Liens, security interests and other encumbrances
permitted by ss.11.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
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Pro Forma Basis. Following a Permitted Acquisition, the Total Funded
Indebtedness (or, in the case of Consolidated Total Interest Expense, all
Indebtedness) and EBITDA for the fiscal quarter in which such Permitted
Acquisition occurred and each of the three fiscal quarters immediately following
such Permitted Acquisition being calculated with reference to the audited
historical financial results of the Person so acquired (or, to the extent such
financial results are unaudited, such unaudited results shall have been prepared
in a manner which is acceptable to the Agent) and the Company and its
Subsidiaries for the applicable Test Period after giving effect on a pro forma
basis to such Permitted Acquisition and assuming that such Permitted Acquisition
had been consummated at the beginning of such Test Period in the manner
described in (i), (ii) and (iii) below:
(i) all Indebtedness (whether under this Credit Agreement or
otherwise) and any other balance sheet adjustments incurred or made in
connection with the Permitted Acquisition shall be deemed to have been
incurred or made on the first day of the Test Period, and all Indebtedness
of the Person acquired or to be acquired in such Permitted Acquisition
which was or will have been repaid in connection with the consummation of
the Permitted Acquisition shall be deemed to have been repaid concurrently
with the incurrence of the Indebtedness incurred in connection with the
Permitted Acquisition;
(ii) all Indebtedness assumed to have been incurred pursuant to the
preceding clause (i) shall be deemed to have borne interest at the sum of
(a) the arithmetic mean of (x) the Eurocurrency Rate for Eurocurrency Rate
Loans having an Interest Period of one month in effect on the first day of
the Test Period and (y) the Eurocurrency Rate for Eurocurrency Rate Loans
having an Interest Period of one month in effect on the last day of the
Test Period plus (b) the Applicable Margin for Revolving Credit Loans then
in effect (after giving effect to the Permitted Acquisition on a Pro Forma
Basis); and
(iii) other reasonable cost savings, expenses and other income
statement or operating statement adjustments which are attributable to the
change in ownership and/or management resulting from such Permitted
Acquisition as may be approved by the Agent in writing shall be deemed to
have been realized on the first day of the Test Period.
Rate Adjustment Period. See the definition of "Applicable Margin."
Rate of Exchange. See ss.2.9.2 hereof.
RCRA. See ss.9.17(a).
Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by the Company or any of its Subsidiaries.
-23-
Record. The grid attached to a Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note.
Reference Bank. Fleet.
Reference Period. As of any date of determination, the period of four (4)
consecutive fiscal quarters of the Company and its Subsidiaries ending on such
date, or if such date is not a fiscal quarter end date, the period of four (4)
consecutive fiscal quarters most recently ended.
Register. See ss.20.3.
Reimbursement Obligation. Any Borrower's obligation to reimburse the Agent
and the Banks on account of any drawing under any Letter of Credit as provided
in ss.5.2.
Restricted Payment. In relation to the Company and its Subsidiaries, any
(a) Distribution or (b) payment or prepayment by the Company or its Subsidiaries
to the Company's or any Subsidiary's shareholders (or other equity holders) or
to any Affiliate Company or any Subsidiary or any Affiliate of the Company's or
such Subsidiary's shareholders.
Revolver Borrowers. Collectively, the Company and the UK Borrowers.
Revolver Commitment Fee. See ss.2.2.
Revolving Credit Loan Maturity Date. March 24, 2004.
Revolving Credit Loans. Revolving credit loans made or to be made by the
Banks to the Revolver Borrowers pursuant to ss.2 (including advances made
pursuant to the Overdraft Facility).
Revolving Credit Note Record. A Record with respect to a Revolving Credit
Note.
Revolving Credit Notes. See ss.2.4.
▇▇▇▇. See ss.9.17(a).
Same Day Funds. With respect to disbursements and payments in (a) Dollars,
immediately available funds, and (b) an Optional Currency, same day or other
funds as may be determined by the Agent to be customary in the place of
disbursement or payment for the settlement of international banking transactions
in the relevant Optional Currency.
Section 20 Subsidiary. A Subsidiary of the bank holding company
controlling any Bank, which Subsidiary has been granted authority by the Federal
Reserve Board to underwrite and deal in certain Ineligible Securities.
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Security Agreements. Collectively, (a) the several Security Agreements,
dated or to be dated on or prior to the Closing Date (or such later date as is
required by ss.10.16(a)), among the Company and the Domestic Subsidiaries which
are Guarantors and the Agent; (b) the Debentures dated or to be dated on or
prior to the Closing Date between GenRad Ireland, each Borrowing Subsidiary
other than GenRad Sweden and the Agent; (c) the Corporate Mortgage, dated or to
be dated on or prior to the AutoDiagnos Acquisition Closing Date between GenRad
Sweden and the Agent; and (d) the additional debentures, security agreements or
similar documents dated as of the date required by ss.10.16(b) between each
Person which was required to become a Guarantor pursuant to ss.10.16(b) and the
Agent, and in each case in form and substance satisfactory to the Banks and the
Agent.
Security Documents. The Guarantees, the Security Agreements, the Patent
Assignments, the Trademark Assignments, the Stock Pledge Agreements and all
other instruments and documents, including without limitation Uniform Commercial
Code financing statements, required to be executed or delivered pursuant to any
Security Document.
Sierra. Sierra Research & Technology, Inc.
Sterling or (pound). Pounds Sterling in lawful currency of the United
Kingdom.
Sterling Base Rate. The annual rate of interest announced from time to
time by the Agent at its London branch as its "base rate" for loans denominated
in Sterling.
Sterling Base Rate Loans. Overdraft Facility advances bearing interest
calculated by reference to the Sterling Base Rate.
Stock Pledge Agreements. Collectively, (a) the Stock Pledge Agreement,
dated or to be dated on or prior to the Closing Date, between the Company and
the Agent pursuant to which the Company pledges the stock of its Subsidiaries to
secure its Obligations; (b) the Charge Over Shares, dated or to be dated on or
prior to the Closing Date, between the Company and the Agent pursuant to which
the Company pledges to the Agent the stock of Holdings; (c) the Charge Over
Shares, dated or to be dated on or prior to the Closing Date, between the
Company and the Agent pursuant to which the Company pledges to the Agent the
stock of GenRad Ireland; (d) the Charge Over Shares, dated or to be dated on or
prior to the Closing Date, between Holdings and the Agent pursuant to which
Holdings pledges to the Agent the capital stock of GenRad Ltd., GenRad Europe
and Mitron Europe Ltd.; (e) the Share Pledge Agreement, dated or to be dated on
or prior to the AutoDiagnos Acquisition Closing Date, between the Company and
the Agent pursuant to which the Company pledges to the Agent the capital stock
of GenRad Sweden; (f) the Share Pledge Agreement, dated or to be dated on or
prior to the AutoDiagnos Acquisition Closing Date, between GenRad Sweden and the
Agent pursuant to which GenRad Sweden pledges to the Agent the capital stock of
AutoDiagnos; and (g) such other stock pledge agreements, charge over shares or
similar instruments as may be required from time to time pursuant to ss.10.16
hereof, in each case, in form and substance satisfactory to the Banks and the
Agent.
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Subsidiary. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock.
Synthetic Lease. As defined in paragraph (f) of the definition of
"Indebtedness".
Tavstock Limited. A wholly-owned Subsidiary of the Company organized under
the laws of Ireland.
Term Borrowers. Collectively, the Company and GenRad Sweden.
Term Loans. The term loans made or to be made by the Banks to (a) the
Company on the Closing Date in the aggregate principal amount not to exceed
$45,000,000 (the "Nicolet Term Loan") and (b) GenRad Sweden on the AutoDiagnos
Acquisition Closing Date in the aggregate principal amount not to exceed
$30,000,000 (the "AutoDiagnos Term Loan"), pursuant to, and subject to, ss.4.1.
Term Loan Maturity Date. March 24, 2004.
Term Notes. See ss.4.2.
Term Note Record. A Record with respect to a Term Note.
Test Period. The period of all fiscal quarters (and any portion of a
fiscal quarter) being tested in any covenant calculation period prior to the
date of such Permitted Acquisition as set forth in the definition of Pro Forma
Basis.
Total Commitment. The Commitments of the Banks, as in effect from time to
time.
Total Funded Indebtedness. All Indebtedness of the Company and its
Subsidiaries, whether or not contingent, for borrowed money, purchase money
Indebtedness and with respect to Capitalized Leases and Synthetic Leases,
determined on a consolidated basis in accordance with generally accepted
accounting principles.
Total Overdraft Usage. See ss.2.10.
Trademark Assignments. Collectively, (a) the several Trademark Assignments
made by the Company and certain of its Subsidiaries in favor of the Agent and
(b) Charge Over Intellectual Property, each dated on or prior to the Closing
Date and each in form and substance satisfactory to the Banks and the Agent.
Type. As to any Revolving Credit Loan or all or any portion of the Term
Loans, its nature as a Base Rate Loan or a Eurocurrency Rate Loan.
UK Borrowers. As defined in the preamble hereto.
UK Borrower Sublimit. See ss.2.1.
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Uniform Customs. With respect to any Letter of Credit, the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 or any successor version thereto adopted by the
Agent in the ordinary course of its business as a letter of credit issuer and in
effect at the time of issuance of such Letter of Credit.
United Kingdom. The United Kingdom of Great Britain and Northern Ireland.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which
the Borrower does not reimburse the Agent and the Banks on the date specified
in, and in accordance with, ss.5.2.
Unused Term Loan Commitment Fee. See ss.4.7.
Voting Stock. Stock or similar interests, of any class or classes (however
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles applied on a
consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in The Commonwealth of Massachusetts, have
the meanings assigned to them therein, with the term "instrument" being
that defined under Article 9 of the Uniform Commercial Code.
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(h) Reference to a particular "ss." refers to that section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
(j) Unless otherwise expressly indicated, in the computation of
periods of time from a specified date to a later specified date, the word
"from" means "from and including," the words "to" and "until" each mean
"to but excluding," and the word "through" means "to and including."
(k) This Credit Agreement and the other Loan Documents may use
several different limitations, tests or measurements to regulate the same
or similar matters. All such limitations, tests and measurements are,
however, cumulative and are to be performed in accordance with the terms
thereof.
(l) This Credit Agreement and the other Loan Documents are the
result of negotiation among, and have been reviewed by counsel to, among
others, the Agent and the Borrowers and are the product of discussions and
negotiations among all parties. Accordingly, this Credit Agreement and the
other Loan Documents are not intended to be construed against the Agent or
any of the Banks merely on account of the Agent's or any Bank's
involvement in the preparation of such documents.
2. THE REVOLVING CREDIT FACILITY.
2.1. Commitment to Lend. Subject to the terms and conditions set
forth in this Credit Agreement, each of the Banks severally agrees to lend
to any Revolver Borrower and any Revolver Borrower may borrow, repay, and
reborrow from time to time between the Closing Date and the Revolving
Credit Loan Maturity Date upon notice by such Revolver Borrower to the
Agent given in accordance with ss.2.6, such sums, in Dollars and/or at any
Revolver Borrower's option from time to time, subject to ss.2.9 hereof, in
an Optional Currency, as are requested by any Revolver Borrower up to a
maximum aggregate amount outstanding (after giving effect to all amounts
requested) at any one time equal to such Bank's Commitment minus such
Bank's Commitment Percentage of the sum of the Maximum Drawing Amount, all
Unpaid Reimbursement Obligations and the Total Overdraft Usage, provided
that the Dollar Equivalent of the sum of the outstanding amount of the
Revolving Credit Loans (after giving effect to all amounts requested),
including the Total Overdraft Usage, plus the Maximum Drawing Amount and
all Unpaid Reimbursement Obligations shall not at any time exceed the
lesser of the (i) Total Commitment and (ii) the Borrowing Base; provided,
further, that the Dollar Equivalent of the sum of the outstanding amount
of the Revolving Credit Loans outstanding to the UK Borrowers (after
giving effect to all amounts requested), including the Total Overdraft
Usage, plus the Maximum Drawing Amounts and
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Unpaid Reimbursement Obligations applicable to Letters of Credit issued
for the account of the UK Borrowers shall not at any time exceed
$25,000,000 (the "UK Borrower Sublimit"). Except as expressly provided
otherwise in ss.2.10, the Revolving Credit Loans shall be made pro rata in
accordance with each Bank's Commitment Percentage. Each request for a
Revolving Credit Loan and each utilization of the Overdraft Facility
hereunder shall constitute a representation and warranty by the Borrowers
that the conditions set forth in ss.13 and ss.14, in the case of the
initial Revolving Credit Loans to be made, and the utilizations of the
Overdraft Facility, on the Closing Date, and ss.14, in the case of all
other Revolving Credit Loans and utilizations of the Overdraft Facility,
have been satisfied on the date of such request. Each Base Rate Loan shall
be denominated in Dollars, and each Eurocurrency Rate Loan shall be
denominated in Dollars or, subject to ss.2.9 hereof, in an Optional
Currency.
2.2. Commitment Fee. The Company agrees to pay to the Agent for the
accounts of the Banks in accordance with their respective Commitment
Percentages a commitment fee (the "Revolver Commitment Fee") calculated at
the rate of the Commitment Fee Rate per annum on the average daily amount
during each calendar quarter or portion thereof from the date hereof to
the Revolving Credit Loan Maturity Date by which the Total Commitment
minus the sum of (a) the Maximum Drawing Amount plus (b) all Unpaid
Reimbursement Obligations exceeds the outstanding amount of Revolving
Credit Loans during such calendar quarter. The Revolver Commitment Fee
shall be payable quarterly in arrears on the first day of each calendar
quarter for the immediately preceding calendar quarter commencing on the
first such date following the date hereof, with a final payment on the
Revolving Credit Loan Maturity Date or any earlier date on which the
Commitments shall terminate.
2.3. Reduction of Total Revolving Credit Commitment. The Company
shall have the right at any time and from time to time upon two (2)
Business Days prior written notice to the Agent to reduce by $500,000 or
an integral multiple thereof or terminate entirely the Total Commitment,
whereupon the Commitments of the Banks shall be reduced pro rata in
accordance with their respective Commitment Percentages of the amount
specified in such notice or, as the case may be, terminated. Promptly
after receiving any notice of the Company delivered pursuant to this
ss.2.3, the Agent will notify the Banks of the substance thereof. Upon the
effective date of any such reduction or termination, the Company shall pay
to the Agent for the respective accounts of the Banks the full amount of
any Commitment Fee then accrued on the amount of the reduction. No
reduction or termination of the Commitments may be reinstated.
2.4. The Revolving Credit Notes. The Revolving Credit Loans shall be
evidenced by separate promissory notes of each of the Revolver Borrowers
in substantially the form of Exhibit A hereto (each a "Revolving Credit
Note"), dated as of the Closing Date and completed with appropriate
insertions. One Revolving Credit Note shall be payable to the order of
each Bank in a principal amount equal to such Bank's Commitment or, if
less, the outstanding amount of
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all Revolving Credit Loans made by such Bank, plus interest accrued
thereon, as set forth below. Each Revolver Borrower irrevocably authorizes
each Bank to make or cause to be made, at or about the time of the
Drawdown Date of any Revolving Credit Loan or at the time of receipt of
any payment of principal on such Bank's Revolving Credit Note, an
appropriate notation on such Bank's Revolving Credit Note Record
reflecting the making of such Revolving Credit Loan or (as the case may
be) the receipt of such payment. The outstanding amount of the Revolving
Credit Loans set forth on such Bank's Revolving Credit Note Record shall
be prima facie evidence of the principal amount thereof owing and unpaid
to such Bank, but the failure to record, or any error in so recording, any
such amount on such Bank's Revolving Credit Note Record shall not limit or
otherwise affect the obligations of the applicable Borrower hereunder or
under any Revolving Credit Note to make payments of principal of or
interest on any Revolving Credit Note when due.
2.5. Interest on Revolving Credit Loans. Except as otherwise
provided in ss.6.11,
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per annum equal to
the Base Rate plus the Applicable Margin.
(b) Each Eurocurrency Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per annum equal to
the Eurocurrency Rate determined for such Interest Period plus the
Applicable Margin.
(c) Each of the Revolver Borrowers promises to pay interest on each
Revolving Credit Loan made to such Borrower in arrears on each Interest
Payment Date with respect thereto. Interest on the Revolving Credit Loans
calculated by reference to the Base Rate shall be payable in Dollars, and
interest on the Revolving Credit Loans calculated by reference to the
Eurocurrency Rate shall be payable in Dollars or in the applicable
Optional Currency in which the underlying Revolving Credit Loan was made,
as the case may be.
2.6. Requests for Revolving Credit Loans.
2.6.1. General. Any Revolver Borrower requesting any Revolving
Credit Loan (other than a Revolving Credit Loan constituting an advance
made on the Overdraft Facility) shall give to the Agent, at the Agent's
Head Office, written notice in the form of Exhibit B hereto (or telephonic
notice confirmed in a writing in the form of Exhibit B hereto) of each
Revolving Credit Loan requested hereunder (a "Loan Request") no later than
(a) 10:30 a.m. (Boston time) on the proposed Drawdown Date of any Base
Rate Loan and (b) three (3) Business Days prior to the proposed Drawdown
Date of any Eurocurrency Rate Loan, provided
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that any such notice requesting an Optional Currency must comply with the
requirements of this ss.2.6 and the requirements of an OC Notice pursuant
to ss.2.9.1. Each such notice shall specify (a) the principal amount of
the Revolving Credit Loan requested, stated in either Dollars, or, subject
to ss.2.9 hereof, in an Optional Currency, (b) the proposed Drawdown Date
of such Revolving Credit Loan, (c) the Interest Period for such Revolving
Credit Loan, (d) the Type of such Revolving Credit Loan and (e) the
applicable Revolver Borrower's account to which payment of the proceeds of
such Revolving Credit Loan is to be made. Promptly upon receipt of any
such notice, the Agent shall notify each of the Banks thereof. Each Loan
Request shall be irrevocable and binding on the applicable Revolver
Borrower and shall obligate the applicable Revolver Borrower to accept the
Revolving Credit Loan requested from the Banks on the proposed Drawdown
Date. Each Loan Request shall be in a minimum aggregate amount of $500,000
or an integral multiple thereof.
2.6.2. Temporary Suspension of Eurocurrency Rate Options.
Notwithstanding ss.2.6.1, no Interest Period for any Eurocurrency Rate
Loan may have a duration of more than one month until the date on which
the Agent notifies the Company that the Loans hereunder have been
syndicated to the satisfaction of the Agent, and all Interest Periods
during such period shall end on the same date. The term "satisfactory
syndication," as used in this ss.2.6.2, means a syndication satisfactory
to the Agent and to FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc., as arranger.
2.7. Conversion Options.
2.7.1. Conversion to Different Type of Revolving Credit Loan. Any
Revolver Borrower may elect from time to time to convert any outstanding
Revolving Credit Loan (other than a Revolving Credit Loan constituting an
advance on the Overdraft Facility) denominated in Dollars to a Revolving
Credit Loan of another Type denominated in Dollars, provided that (a) with
respect to any such conversion of a Eurocurrency Rate Loan to a Base Rate
Loan, such Revolver Borrower shall give the Agent prior written notice of
such election by not later than 10:30 a.m. on such Conversion Date; (b)
with respect to any such conversion of a Base Rate Loan to a Eurocurrency
Rate Loan, such Revolver Borrower shall give the Agent at least three (3)
Business Days prior written notice of such election; (c) with respect to
any such conversion of a Eurocurrency Rate Loan into a Revolving Credit
Loan of another Type, such conversion shall only be made on the last day
of the Interest Period with respect thereto and (d) no Base Rate Loan may
be converted into a Eurocurrency Rate Loan when any Default or Event of
Default has occurred and is continuing. On the date on which such
conversion is being made each Bank shall take such action as is necessary
to transfer its Commitment Percentage of such Revolving Credit Loans to
its Domestic Lending Office or its Eurocurrency Lending Office, as the
case may be. All or any part of outstanding Revolving Credit Loans (other
than a Revolving Credit Loan constituting an advance on the Overdraft
Facility) denominated in Dollars of any Type may be converted into a
Revolving Credit
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Loan of another Type as provided herein, provided that any partial
conversion shall be in an aggregate principal amount of $1,000,000 or a
whole multiple thereof. Each Conversion Request relating to the conversion
of a Revolving Credit Loan to a Eurocurrency Rate Loan shall be
irrevocable by the applicable Revolver Borrower.
2.7.2. Continuation of Type of Revolving Credit Loan. Any Revolving
Credit Loan (other than a Revolving Credit Loan constituting an advance on
the Overdraft Facility) of any Type may be continued as a Revolving Credit
Loan of the same Type upon the expiration of an Interest Period with
respect thereto by compliance by the applicable Revolver Borrower with the
notice provisions contained in ss.2.7.1; provided that (a) as to
Eurocurrency Rate Loans denominated in Dollars, no such Eurocurrency Rate
Loan may be continued as such when any Default or Event of Default has
occurred and is continuing, but shall be automatically converted to a Base
Rate Loan on the last day of the first Interest Period relating thereto
ending during the continuance of any Default or Event of Default of which
officers of the Agent active upon the account have actual knowledge; and
(b) as to Eurocurrency Rate Loans denominated in Optional Currency, no
such Eurocurrency Rate Loan may be continued as such when any Default or
Event of Default has occurred or is continuing or the provisions of ss.2.9
hereof have not or cannot be met at the time of such continuation, but
shall be repaid by the applicable Revolver Borrower on the last day of the
Interest Period relating thereto. In the event that a Revolver Borrower
fails to provide any such notice with respect to the continuation of any
Eurocurrency Rate Loan as such, then (a) as to Eurocurrency Rate Loans
denominated in Dollars, such Eurocurrency Rate Loans shall be
automatically converted to a Base Rate Loan on the last day of the first
Interest Period relating thereto, and (b) as to Eurocurrency Rate Loans
denominated in an Optional Currency, such Eurocurrency Rate Loans shall be
repaid on the last day of the Interest Period relating thereto. The Agent
shall notify the Banks promptly when any such automatic conversion
contemplated by this ss.2.7 is scheduled to occur.
2.7.3. Eurocurrency Rate Loans. Any conversion to or from
Eurocurrency Rate Loans shall be in such amounts and be made pursuant to
such elections so that, after giving effect thereto, the aggregate
principal amount of all Eurocurrency Rate Loans having the same Interest
Period shall not be less than $500,000 or a whole multiple of $100,000 in
excess thereof (or, in the case of Eurocurrency Rate Loans denominated in
an Optional Currency, that whole number which is nearest to the Dollar
Equivalent of $500,000 or $100,000, as the case may be, rounded to the
nearest one thousandth). In no event shall the Revolver Borrowers have
more than ten (10) Eurocurrency Rate Loans outstanding at any one time.
2.8. Funds for Revolving Credit Loan.
2.8.1. Funding Procedures. Not later than 1:00 p.m. (Boston time) on
the proposed Drawdown Date of any Revolving Credit Loans (other than a
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Revolving Credit Loan constituting an advance on the Overdraft Facility),
each of the Banks will make available to the Agent, at the Agent's Head
Office, in Same Day Funds, the amount of such Bank's Commitment Percentage
of the amount of the requested Revolving Credit Loans. Upon receipt from
each Bank of such amount, and upon receipt of the documents required by
ss.ss.13 and 14 and the satisfaction of the other conditions set forth
therein, to the extent applicable, the Agent will make available to the
applicable Revolver Borrower the aggregate amount of such Revolving Credit
Loans made available to the Agent by the Banks. The failure or refusal of
any Bank to make available to the Agent at the aforesaid time and place on
any Drawdown Date the amount of its Commitment Percentage of the requested
Revolving Credit Loans shall not relieve any other Bank from its several
obligation hereunder to make available to the Agent the amount of such
other Bank's Commitment Percentage of any requested Revolving Credit
Loans.
2.8.2. Advances by Agent. The Agent may, unless notified to the
contrary by any Bank prior to a Drawdown Date, assume that such Bank has
made available to the Agent on such Drawdown Date the amount of such
Bank's Commitment Percentage of the Revolving Credit Loans to be made on
such Drawdown Date, and the Agent may (but it shall not be required to),
in reliance upon such assumption, make available to the applicable
Revolver Borrower a corresponding amount. If any Bank makes available to
the Agent such amount on a date after such Drawdown Date, such Bank shall
pay to the Agent on demand an amount equal to the product of (a) the
average computed for the period referred to in clause (c) below, of the
Overnight Rate for each day included in such period, times (b) the amount
of such Bank's Commitment Percentage of such Revolving Credit Loans, times
(c) a fraction, the numerator of which is the number of days that elapse
from and including such Drawdown Date to the date on which the amount of
such Bank's Commitment Percentage of such Revolving Credit Loans shall
become immediately available to the Agent, and the denominator of which is
365. A statement of the Agent submitted to such Bank with respect to any
amounts owing under this paragraph shall be prima facie evidence of the
amount due and owing to the Agent by such Bank. If the amount of such
Bank's Commitment Percentage of such Revolving Credit Loans is not made
available to the Agent by such Bank within three (3) Business Days
following such Drawdown Date, the Agent shall be entitled to recover such
amount from the applicable Revolver Borrower on demand, with interest
thereon at the rate per annum applicable to the Revolving Credit Loans
made on such Drawdown Date. In the event any Bank fails to make such
Bank's Commitment Percentage of such Revolving Credit Loans available to
the Agent within one (1) Business Day following the Drawdown Date, the
Agent shall provide to the Borrower written notice of such failure,
provided, a failure by the Agent to so provide such notice shall not
affect the Agent's rights under this ss.2.8.2.
2.9. Optional Currency.
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2.9.1. Request for Optional Currency. Subject to the limitations set
forth in ss.2.1, any Revolver Borrower may, upon at least three (3)
Business Days' notice to the Agent (an "OC Notice"), request that one or
more Revolving Credit Loans (other than a Revolving Credit Loan
constituting an advance on the Overdraft Facility) be made as Eurocurrency
Rate Loans in an Optional Currency, provided that any Revolving Credit
Loan proposed to be made under this ss.2.9.1 shall be in an amount not
less than $500,000, or a greater amount which is an integral multiple of
$100,000, or the Equivalent Dollar in an Optional Currency. Each OC Notice
requesting a Revolving Credit Loan in an Optional Currency shall be by
telephone, telex, telecopy or cable (in each case confirmed in writing by
the requesting Revolver Borrower), specifying (a) the Revolving Credit
Loan to be made, (b) the requested date of the proposed borrowing, (c) the
requested currency in which the Revolving Credit Loan is to be made, (d)
the initial Interest Period for the Revolving Credit Loan to be borrowed,
and (e) such Revolver Borrower's account with the Agent, or, in the case
of an Optional Currency which is the legal tender of a country in which
the Agent has no office, with another depository specified by such
Revolver Borrower in such country, to which payment of the proceeds of
such Revolving Credit Loan is to be made. If any Bank, on or prior to the
second Business Day preceding the first day of any Interest Period for
which an OC Notice has been delivered requesting a Revolving Credit Loan
in an Optional Currency or on any funding date, determines (which
determination shall be conclusive) that the Optional Currency is not
freely transferable and convertible into Dollars or that it will be
impracticable for such Bank to fund the Revolving Credit Loan in such
Optional Currency, then such Bank shall so notify Agent, which
notification shall be given immediately by the Agent to the applicable
Revolver Borrower, and such Bank's portion of the requested Revolving
Credit Loan shall, notwithstanding any contrary election by such Revolver
Borrower or any other provisions hereof, be denominated in Dollars as a
Base Rate Loan unless such Revolver Borrower, one Business Day prior to
the commencement of the Interest Period and pursuant to the terms of
ss.2.6 hereof, elects to have such Revolving Credit Loan denominated in
Dollars as a Eurocurrency Rate Loan. In the event that such Revolver
Borrower repays such portion of a Revolving Credit Loan denominated in
Dollars as a Base Rate Loan or a Eurocurrency Rate Loan, as the case may
be, in accordance with ss.3.3 hereof and such repayment results in
Revolving Credit Loans outstanding that are not pro rata in accordance
with the Commitment Percentages, then all subsequent principal repayments
denominated in the Optional Currency which the applicable Bank did not
advance shall be made by such Revolver Borrower to the Agent for the
respective accounts of such Banks other than such Bank on a pro rata basis
until such time as the Revolving Credit Loans are outstanding on a pro
rata basis. Subject to the foregoing and to the satisfaction of the terms
and conditions of ss.ss.13 and 14, each Revolving Credit Loan requested to
be made in an Optional Currency will be made on the date specified
therefor in the OC Notice, in the currency requested in the OC Notice and,
upon being so made, will have the Interest Period requested in the OC
Notice.
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2.9.2. Exchange Rate. For purposes of this Credit Agreement the
amount in one currency which shall be equivalent on any particular date to
a specified amount in another currency shall be that amount (as
conclusively ascertained by the Agent by its normal banking practices,
absent manifest error) in the first currency which is or could be
purchased by the Agent (in accordance with normal banking practices) with
such specified amount in the second currency in any recognized
Eurocurrency Interbank Market selected by the Agent in good faith for
delivery on such date at the spot rate of exchange prevailing at 10:00
A.M. (Boston time) (or as soon thereafter as practicable) on such date
(such amount described in this ss.2.9.2, the "Rate of Exchange").
2.9.3. Denominations. In the event that any portion of the funds
available under the terms of this Credit Agreement is denominated in an
Optional Currency, the Dollar Equivalent of such portion of the funds
shall be calculated pursuant to ss.2.9.2 above. The amount so determined
shall then be added to the amount already outstanding in Dollars for the
purpose of determining the remaining availability of funds under ss.2.1
and ss.2.9.1 hereof and any required repayments under the following
ss.2.9.4.
2.9.4. Repayment. If at any time prior to the Revolving Credit Loan
Maturity Date, the Dollar Equivalent of the aggregate principal amount
outstanding of all Revolving Credit Loans, Unpaid Reimbursement
Obligations and the Maximum Drawing Amount hereunder shall exceed the
Total Commitment as a result of fluctuations in respective conversion
rates, the Revolver Borrowers shall pay or cause to be paid immediately,
upon demand made by the Agent, such amounts as are sufficient to eliminate
such excess and to reduce the aggregate principal amount outstanding to
the Dollar Equivalent of the Total Commitment. In the event there are any
Revolving Credit Loans outstanding which are denominated in an Optional
Currency, the Agent shall provide the Banks and the Revolver Borrowers
with calculations on the last day of each calendar month that such Loans
are outstanding as to the Dollar Equivalents of such Revolving Credit
Loans.
2.9.5. Funding. Each Bank may make any Eurocurrency Rate Loan
denominated in an Optional Currency by causing any of its foreign branches
or foreign affiliates to make such Eurocurrency Rate Loan (whether or not
such branch or affiliate is named as a lending office on the signature
pages hereof); provided that in such event the obligation of any Revolver
Borrower to repay such Eurocurrency Rate Loan shall nevertheless be to
such Bank and shall, for all purposes of this Credit Agreement (including
without limitation for purposes of the definition of the term "Majority
Banks") be deemed made by such Bank, to the extent of such Eurocurrency
Rate Loan, for the account of such branch or affiliate.
2.10. Overdraft Facility. (a) Subject to the terms and conditions of
this Credit Agreement, including, without limitation, the conditions of
this ss.2.10, each of the UK Borrowers may from time to time between the
date hereof and
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the Revolving Credit Loan Maturity Date utilize an overdraft facility on a
Sterling-denominated current account with the Overdraft Bank in the name
of the applicable UK Borrower (the "Overdraft Facility") by causing checks
or other items denominated in Sterling to be presented for payment against
such current account in amounts greater than the then available balance in
such current account provided that the aggregate amount of all liabilities
of the UK Borrowers in respect of the Overdraft Facility (the "Total
Overdraft Usage") shall not exceed the Maximum Overdraft Amount. As to the
Overdraft Facility, each such presentation shall be deemed to be a request
by the applicable UK Borrower for a utilization of the Overdraft Facility
in an amount equal to the excess of such check or other item over such
available balance, and shall be irrevocable. Notwithstanding the
foregoing, at no time shall the Total Overdraft Usage exceed the Maximum
Overdraft Amount. After the occurrence of an Event of Default, the
Overdraft Bank may terminate the Overdraft Facility in its entirety and
reduce the Maximum Overdraft Amount to zero with immediate effect at its
sole discretion by written notice to the UK Borrowers, and the entire
principal amount of the debit balance in the Overdraft Facility, together
with all interest accrued thereon, shall become immediately due and
payable. The entire principal amount of the debit balance in the Overdraft
Facility, together with all interest accrued thereon, shall be due and
payable on the Revolving Credit Loan Maturity Date.
(b) If at any time the outstanding amount of the debit balance in
the Overdraft Facility shall exceed the Maximum Overdraft Amount (due to
currency fluctuations or otherwise), the UK Borrowers hereby jointly and
severally, absolutely and unconditionally promise to repay the amount of
such excess to the Agent for the account of the Overdraft Bank.
(c) Interest on the Overdraft Facility shall be payable on the day
to day cleared debit balance in the applicable UK Borrower's current
account maintained with the Overdraft Bank. Except as provided in ss.6.11
hereto, interest on the Overdraft Facility shall be payable at the annual
percentage rate of interest determined by the Agent to be the sum of (i)
the Sterling Base Rate, plus (ii) the Applicable Margin with respect to
Sterling Base Rate Loans as in effect from time to time. The rate of
interest on the Overdraft Facility shall be adjusted from time to time to
reflect changes in the Sterling Base Rate and the Applicable Margin. Any
such change in such rate of interest shall become effective on the date of
the change in the Sterling Base Rate and/or the date of the change in the
Applicable Margin. The UK Borrowers jointly and severally promise to pay
interest on the Overdraft Facility (i) monthly in arrears on the last day
of each calendar month, commencing on the first such date following the
Closing Date and (ii) the date on which the Overdraft Facility is repaid
in full.
(d) Interest due with respect to the Overdraft Facility shall be
paid to the Agent for the account of the Overdraft Bank, provided that to
the extent that a Bank has paid to the Overdraft Bank any amount in
respect of the Overdraft
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Facility as provided in ss.2.10(e), interest to the extent of such amount
shall thereafter be for the account of such Bank.
(e) Each Bank irrevocably and unconditionally undertakes to purchase
a participation of any debit balance by paying to the Agent for the
account of the Overdraft Bank on demand made by the Overdraft Bank through
the Agent:
(i) its Commitment Percentage of the debit balance from time
to time in the applicable UK Borrower's current account maintained
with the Overdraft Bank if such UK Borrower fails to pay together
with interest which has accrued with respect thereto, provided that
no Bank shall be obligated to pay to the Agent its Commitment
Percentage of any portion of any debit balance arising solely by the
making of any advance by the Overdraft Bank after the Overdraft Bank
and the Agent had written notice from any Borrower or any Bank of a
Default hereunder; and
(ii) such additional amount as shall be necessary to reimburse
the Overdraft Bank (to the extent not reimbursed by the applicable
UK Borrower) for its cost of funding the amount payable by such Bank
as mentioned in clause (i) above during the period beginning on the
date the amount was due from such UK Borrower and ending on the date
demand is made on such Bank for payment of the same,
and agrees that neither the Overdraft Bank nor the Agent shall be obliged
to make any demand on or take any proceedings against any UK Borrower or
any other person before making demand on such Bank hereunder. The
provisions of ss.17.5.3 shall apply to the obligations of the Banks under
this ss.2.10.
(f) The UK Borrowers jointly and severally, irrevocably and
unconditionally agree to reimburse to each Bank any amount paid by such
Bank pursuant to this ss.2.10 and agree that such amounts shall be
Obligations hereunder. The UK Borrowers further agree to indemnify and
hold such Bank harmless against all actions, proceedings, liabilities,
claims, demands, costs and expenses of whatsoever nature and howsoever
occurring which such Bank may properly incur, suffer or sustain by reason
of its payment of such amount.
2.11. Change in Borrowing Base. The Borrowing Base shall be
determined quarterly (or at such other interval as may be specified
pursuant to ss.10.4(e)) by the Agent by reference to the Borrowing Base
Report, commercial finance and collateral audit reports, and other
information obtained by or provided to the Agent. The Agent shall give to
the Company written notice of any change in the Borrowing Base determined
by the Agent. In the case of a reduction in the lending formula with
respect to Eligible Accounts Receivable or Eligible Inventory, such notice
shall be effective five (5) days after its receipt by the Company, and in
the case of any change in the general criteria for Eligible
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Accounts Receivable or Eligible Inventory, such notice shall be effective
upon its receipt by the Company. Prior to the time that such notice
becomes effective the Borrowing Base shall be computed as it would have
been computed in the absence of such notice.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. Maturity. Each of the Revolver Borrowers promises to pay on the
Revolving Credit Loan Maturity Date, and there shall become absolutely due
and payable on the Revolving Credit Loan Maturity Date, all of the
Revolving Credit Loans outstanding on such date, together with any and all
accrued and unpaid interest thereon.
3.2. Mandatory Repayments of Revolving Credit Loans. If at any time
the sum of the outstanding amount of the Revolving Credit Loans
(including, without limitation, advances made in connection with the
Overdraft Facility), the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the lesser of (a) the Total Commitment
and (b) the Borrowing Base, then each of the Revolver Borrowers shall
immediately pay its pro rata share (based upon the outstanding principal
amount of the Revolving Credit Loans made to each such Borrower) of the
amount of such excess to the Agent for the respective accounts of the
Banks for application: first, to any Unpaid Reimbursement Obligations;
second, to reduce the debit balance in the Overdraft Facility; third, to
the other Revolving Credit Loans; and fourth, to provide to the Agent cash
collateral for Reimbursement Obligations as contemplated by ss.5.2(b) and
(c). Each payment of any Unpaid Reimbursement Obligations or prepayment of
Revolving Credit Loans shall be allocated among the Banks, in proportion,
as nearly as practicable, to each Reimbursement Obligation or (as the case
may be) the respective unpaid principal amount of each Bank's Revolving
Credit Note, with adjustments to the extent practicable to equalize any
prior payments or repayments not exactly in proportion.
3.3. Optional Repayment of Revolving Credit Loans. Any of the
Revolver Borrowers shall have the right, at its election, to repay the
outstanding amount of its Revolving Credit Loans, as a whole or in part,
at any time without penalty or premium, provided that all prepayments of
Eurocurrency Rate Loans prior to the end of the Interest Period relating
thereto shall obligate the applicable Revolver Borrower to pay any
breakage costs associated with such Eurocurrency Rate Loans in accordance
with ss.6.10 hereof. The applicable Revolver Borrower shall give the
Agent, no later than 12:00 noon, Boston time, at least one (1) Business
Day prior written notice (which may be given by telecopier) of any
proposed prepayment pursuant to this ss.3.3 of Base Rate Loans, and three
(3) Business Days prior written notice (which may be given by telecopier)
of any proposed prepayment pursuant to this ss.3.3 of Eurocurrency Rate
Loans, in each case specifying the proposed date of prepayment of
Revolving Credit Loans and the principal amount to be prepaid. Each such
partial prepayment of the Revolving Credit Loans shall be in an integral
multiple
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of $500,000 (or the Dollar Equivalent), and in each case shall be
accompanied by the payment of accrued interest on the principal prepaid to
the date of prepayment and shall be applied, in the absence of instruction
by the Borrower, first to the principal of Base Rate Loans and then to the
principal of Eurocurrency Rate Loans. Each partial prepayment shall be
allocated among the Revolving Credit Banks, in proportion, as nearly as
practicable, to the respective unpaid principal amount of each Bank's
Revolving Credit Note, with adjustments to the extent practicable to
equalize any prior repayments not exactly in proportion.
4. THE TERM LOAN.
4.1. Commitment to Lend. Subject to the terms and conditions set
forth in this Credit Agreement, including, without limitation, ss.13 and
ss.14 hereof, each Bank agrees to lend (a) to the Company on the Closing
Date the amount of its Commitment Percentage of the principal amount of
$45,000,000 in Dollars and (b) to GenRad Sweden on the AutoDiagnos
Acquisition Closing Date (subject to the provisions of ss.14.6 hereof) the
amount of its Commitment Percentage of the principal amount of not more
than $30,000,000.
4.2. The Term Notes. The Term Loans shall be evidenced by separate
promissory notes of each of the Term Borrowers in substantially the form
of Exhibit C hereto (each a "Term Note"), dated the Closing Date and the
AutoDiagnos Acquisition Closing Date, as the case may be, and completed
with appropriate insertions. One Term Note from each Term Borrower shall
be payable to the order of each Bank in a principal amount equal to such
Bank's Commitment Percentage of the Term Loans and representing the
obligation of such Term Borrower to pay to such Bank such principal amount
or, if less, the outstanding amount of such Bank's Commitment Percentage
of the Term Loans, plus interest accrued thereon, as set forth below. Each
of the Term Borrowers irrevocably authorizes each Bank to make or cause to
be made a notation on such Bank's Term Note Record reflecting the original
principal amount of such Bank's Commitment Percentage of the Term Loans
and, at or about the time of such Bank's receipt of any principal payment
on such Bank's Term Note, an appropriate notation on such Bank's Term Note
Record reflecting such payment. The aggregate unpaid amount set forth on
such Bank's Term Note Record shall be prima facie evidence of the
principal amount thereof owing and unpaid to such Bank, but the failure to
record, or any error in so recording, any such amount on such Bank's Term
Note Record shall not affect the obligations of the Term Borrower
hereunder or under any Term Note to make payments of principal of and
interest on any Term Note when due.
4.3. Schedule of Installment Payments of Principal of Term Loan.
4.3.1. Nicolet Term Loan. The Company promises to pay to the Agent
for the account of the Banks the principal amount of the Nicolet Term Loan
in sixteen (16) consecutive quarterly payments payable on the dates and in
such amounts (as the same may be adjusted pursuant to ss.4.4) as set forth
in the table
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below commencing on June 30, 2000, with a final payment on the Term Loan
Maturity Date in an amount equal to the unpaid balance of the Nicolet Term
Loan.
Quarter Ending Payment
-------------- -------
June 30, 2000 $2,250,000
September 30, 2000 $2,250,000
December 31, 2000 $2,250,000
March 31, 2001 $2,250,000
June 30, 2001 $3,000,000
September 30, 2001 $3,000,000
December 31, 2001 $3,000,000
March 31, 2002 $3,000,000
June 30, 2002 $3,000,000
September 30, 2002 $3,000,000
December 31, 2002 $3,000,000
March 31, 2003 $3,000,000
June 30, 2003 $3,000,000
September 30, 2003 $3,000,000
December 31, 2003 $3,000,000
Term Loan Maturity Date $3,000,000
4.3.2. AutoDiagnos Term Loan. To the extent the AutoDiagnos Term
Loan is made by the Banks, GenRad Sweden promises to pay to the Agent for
the account of the Banks the principal amount of the AutoDiagnos Term Loan
in sixteen (16) consecutive quarterly payments payable on the dates and in
such amounts (as the same may be adjusted pursuant to ss.4.4) as set forth
in the table below commencing on June 30, 2000, with a final payment on
the Term Loan Maturity Date in an amount equal to the unpaid balance of
the AutoDiagnos Term Loan; provided, however, to the extent the principal
amount of the AutoDiagnos Term Loan actually borrowed hereunder on the
AutoDiagnos Acquisition Closing Date is less than $30,000,000, then each
quarterly payment set forth in the table below shall be reduced by an
amount equal to one sixteenth (1/16) of the difference between $30,000,000
and the outstanding principal balance of the AutoDiagnos Term Loan on the
Drawdown Date.
Quarter Ending Payment
-------------- -------
June 30, 2000 $1,500,000
September 30, 2000 $1,500,000
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December 31, 2000 $1,500,000
March 31, 2001 $1,500,000
June 30, 2001 $2,000,000
September 30, 2001 $2,000,000
December 31, 2001 $2,000,000
March 31, 2002 $2,000,000
June 30, 2002 $2,000,000
September 30, 2002 $2,000,000
December 31, 2002 $2,000,000
March 31, 2003 $2,000,000
June 30, 2003 $2,000,000
September 30, 2003 $2,000,000
December 31, 2003 $2,000,000
Term Loan Maturity Date $2,000,000
4.4. Mandatory Prepayment of Term Loan. Concurrently with the
receipt by the Company or any Subsidiary of (a) Net Cash Sale Proceeds
from Asset Sales (other than the sale or disposition of assets in the
ordinary course of business consistent with past practices and other than
the sale or disposition of certain intellectual property by the Company
and/or GenRad Sweden to GenRad Ireland as contemplated in ss.11.5.2), (b)
Net Cash Proceeds from any Equity Issuances of the Company or any of its
Subsidiaries or (c) cash proceeds in excess of $250,000 in the aggregate
received from claims on insurance by the Company or any of its
Subsidiaries which have not been committed (as evidenced by a binding
written contract) by the Company or such Subsidiary within 180 days of
receipt of such proceeds to the repair or replacement of the property so
damaged or destroyed, or, if so committed, such repair or replacement of
the property so damaged or destroyed shall have not commenced within 270
days of receipt of such proceeds pursuant to such binding written contract
(provided, however, if a Default or Event of Default has occurred and is
continuing, such proceeds shall be immediately paid to the Agent), the
Company shall pay to the Agent for the respective accounts of the Banks an
amount equal to one hundred percent (100%) of such proceeds, to be applied
pro rata to the Nicolet Term Loan and AutoDiagnos Term Loan, and then
applied against the remaining scheduled installments of principal on the
Term Loans in the inverse order of maturity and, if there are no
outstanding amounts owned on the Term Loans, then to reduce the
outstanding amount of the Revolving Credit Loans and to permanently reduce
the Total Commitment by such amount.
4.5. Optional Prepayment of Term Loan. The applicable Term Borrowers
shall have the right at any time to prepay the Nicolet Term Loan
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and/or the AutoDiagnos Term Loan on or before the Term Loan Maturity Date,
as a whole or in part, without premium or penalty, provided that all
prepayments of Eurocurrency Rate Loans prior to the end of the Interest
Period relating thereto shall obligate the Term Borrowers to pay any
breakage costs associated with such Eurocurrency Rate Loans in accordance
with ss.6.10 hereof. The applicable Term Borrowers shall give the Agent,
no later than 12:00 noon, Boston time, at least one (1) Business Day prior
written notice (which may be given by telecopier) of any proposed
prepayment pursuant to this ss.4.5 of Base Rate Loans, and three (3)
Business Days prior written notice (which may be given by telecopier) of
any proposed prepayment pursuant to this ss.4.5 of Eurocurrency Rate
Loans, in each case specifying the proposed date of prepayment of the
Nicolet Term Loan and/or the AutoDiagnos Term Loan and the principal
amount to be prepaid. Each such partial prepayment of the Nicolet Term
Loan and/or the AutoDiagnos Term Loan shall be in an integral multiple of
$500,000, and in each case shall be accompanied by the payment of accrued
interest on the principal prepaid to the date of prepayment and shall be
applied, in the absence of instruction by the applicable Term Borrowers,
first to the principal of Base Rate Loans and then to the principal of
Eurocurrency Rate Loans. Each partial prepayment shall be allocated among
the Banks, in proportion, as nearly as practicable, to the respective
outstanding amount of each Bank's applicable Term Note, with adjustments
to the extent practicable to equalize any prior prepayments not exactly in
proportion. Any prepayment of principal of the Nicolet Term Loan and/or
the AutoDiagnos Term Loan shall include all interest accrued to the date
of prepayment and shall be applied against the scheduled installments of
principal due on the Nicolet Term Loan and/or the AutoDiagnos Term Loan in
the inverse order of maturity. No amount repaid with respect to the
Nicolet Term Loan and/or the AutoDiagnos Term Loan may be reborrowed.
4.6. Interest on Term Loan.
4.6.1. Interest Rates. Except as otherwise provided in ss.6.11, the
Term Loans shall bear interest during each Interest Period relating to all
or any portion of the Term Loan at the following rates:
(a) To the extent that all or any portion of the Term Loans
bears interest during such Interest Period at the Base Rate, the
Term Loans or such portion shall bear interest during such Interest
Period at the rate per annum equal to the Base Rate plus the
Applicable Margin.
(b) To the extent that all or any portion of the Term Loans
bears interest during such Interest Period at the Eurocurrency Rate,
the Term Loans or such portion shall bear interest during such
Interest Period at the rate per annum equal to the Eurocurrency Rate
plus the Applicable Margin.
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The applicable Term Borrowers promise to pay interest on the Term Loans or
any portion thereof outstanding during each Interest Period in arrears on
each Interest Payment Date applicable to such Interest Period.
4.6.2. Notification by Term Borrowers. The applicable Term Borrowers
shall notify the Agent, such notice to be irrevocable, at least three (3)
Business Days prior to the Drawdown Date of the applicable Term Loan if
all or any portion of such Term Loan is to bear interest at the
Eurocurrency Rate. After the Term Loans have been made, the provisions of
ss.2.7 shall apply mutatis mutandis with respect to all or any portion of
the Term Loans so that the Term Borrowers may have the same interest rate
options with respect to all or any portion of the Term Loans as they would
be entitled to with respect to the Revolving Credit Loans.
4.6.3. Amounts, etc. Any portion of the Term Loans bearing interest
at the Eurocurrency Rate relating to any Interest Period shall be in the
amount of $500,000 or an integral multiple thereof. No Interest Period
relating to the Term Loans or any portion thereof bearing interest at the
Eurocurrency Rate shall extend beyond the date on which a regularly
scheduled installment payment of the principal of the Term Loans is to be
made unless a portion of the Term Loans at least equal to such installment
payment has an Interest Period ending on such date or is then bearing
interest at the Base Rate.
4.7. Term Loan Commitment Fee. The Company agrees to pay to the
Agent for the account of the Banks in accordance with their respective
Commitment Percentages of the Term Loans, a commitment fee (the "Unused
Term Loan Commitment Fee") calculated at the Commitment Fee rate per annum
on the average daily amount during each calendar quarter or portion
thereof from the date hereof to the date on which the AutoDiagnos Term
Loan is fully funded hereunder (or, if such Loan is not funded by May 1,
2000, the date on which the Banks have no further commitment to make such
Loan hereunder) of the unfunded portion of the Term Loans. The Unused Term
Loan Commitment Fee shall be payable in arrears on the first day of each
calendar quarter for the immediately preceding calendar quarter commencing
on the first such date following the date hereof, with a final payment on
the date the AutoDiagnos Term Loan is fully funded or any earlier date on
which the Banks' commitments to make such Loan have terminated.
5. LETTERS OF CREDIT.
5.1. Letter of Credit Commitments.
5.1.1. Commitment to Issue Letters of Credit. Subject to the terms
and conditions hereof and the execution and delivery by the applicable
Revolver Borrower of a letter of credit application on the Agent's
customary form (a "Letter of Credit Application"), the Agent on behalf of
the Banks and in reliance upon the agreement of the Banks set forth in
ss.5.1.4 and upon the representations
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and warranties of the Revolver Borrowers contained herein, agrees, in its
individual capacity, to issue, extend and renew for the account of such
Revolver Borrower one or more standby or documentary letters of credit
(individually, a "Letter of Credit") denominated in Dollars, in such form
as may be requested from time to time by such Revolver Borrower and agreed
to by the Agent; provided, however, that, after giving effect to such
request, (a) the sum of the aggregate Maximum Drawing Amount and all
Unpaid Reimbursement Obligations shall not exceed $15,000,000 at any one
time and (b) the sum of (i) the Maximum Drawing Amount on all Letters of
Credit, (ii) all Unpaid Reimbursement Obligations, (iii) the Dollar
Equivalent of the amount of all Revolving Credit Loans outstanding, and
the Total Overdraft Usage shall not exceed the lesser of (A) the Total
Commitment and (B) the Borrowing Base. Notwithstanding the foregoing, the
Agent shall have no obligation to issue any Letter of Credit to support or
secure any Indebtedness of any Revolver Borrower or any of its
Subsidiaries to the extent that such Indebtedness was incurred prior to
the proposed issuance date of such Letter of Credit, unless in any such
case such Revolver Borrower demonstrates to the satisfaction of the Agent
that (x) such prior incurred Indebtedness were then fully secured by a
prior perfected and unavoidable security interest in collateral provided
by such Revolver Borrower or such Subsidiary to the proposed beneficiary
of such Letter of Credit or (y) such prior incurred Indebtedness were then
secured or supported by a letter of credit issued for the account of such
Revolver Borrower or such Subsidiary and the reimbursement obligation with
respect to such letter of credit was fully secured by a prior perfected
and unavoidable security interest in collateral provided to the issuer of
such letter of credit by such Revolver Borrower or such Subsidiary.
5.1.2. Letter of Credit Applications. Each Letter of Credit
Application shall be completed to the satisfaction of the Agent. In the
event that any provision of any Letter of Credit Application shall be
inconsistent with any provision of this Credit Agreement, then the
provisions of this Credit Agreement shall, to the extent of any such
inconsistency, govern.
5.1.3. Terms of Letters of Credit. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (a) provide for
the payment of sight drafts for honor thereunder when presented in
accordance with the terms thereof and when accompanied by the documents
described therein, and (b) have an expiry date no later than the earlier
of (i) one (1) year from the date of issuance of such Letter of Credit or
(ii) the date which is fourteen (14) days (or, if the Letter of Credit is
confirmed by a confirmer or otherwise provides for one or more nominated
persons, forty-five (45) days) prior to the Revolving Credit Loan Maturity
Date. Each Letter of Credit so issued, extended or renewed shall be
subject to the Uniform Customs or, in the case of a Standby Letter of
Credit, either the Uniform Customs or the International Standby Practices.
5.1.4. Reimbursement Obligations of Banks. Each Bank severally
agrees that it shall be absolutely liable, without regard to the
occurrence of any
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Default or Event of Default or any other condition precedent whatsoever,
to the extent of such Bank's Commitment Percentage, to reimburse the Agent
on demand for the amount of each draft paid by the Agent under each Letter
of Credit to the extent that such amount is not reimbursed by the
applicable Revolver Borrower pursuant to ss.5.2 (such agreement for a Bank
being called herein the "Letter of Credit Participation" of such Bank).
5.1.5. Participations of Banks. Each such payment made by a Bank
shall be treated as the purchase by such Bank of a participating interest
in the applicable Revolver Borrower's Reimbursement Obligation under
ss.5.2 in an amount equal to such payment. Each Bank shall share in
accordance with its participating interest in any interest which accrues
pursuant to ss.5.2.
5.2. Reimbursement Obligation of the Revolver Borrowers. In order to
induce the Agent to issue, extend and renew each Letter of Credit and the
Banks to participate therein, each Revolver Borrower hereby agrees to
reimburse or pay to the Agent, for the account of the Agent or (as the
case may be) the Banks, with respect to each Letter of Credit issued,
extended or renewed by the Agent hereunder for the account of such
Borrower,
(a) except as otherwise expressly provided in ss.5.2(b) and (c), on
each date that any draft presented under such Letter of Credit is honored
by the Agent, or the Agent otherwise makes a payment with respect thereto,
(i) the amount paid by the Agent under or with respect to such Letter of
Credit, and (ii) the amount of any taxes, fees, charges or other costs and
expenses whatsoever incurred by the Agent or any Bank in connection with
any payment made by the Agent or any Bank under, or with respect to, such
Letter of Credit,
(b) upon the reduction (but not termination) of the Total Commitment
to an amount less than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Agent for the benefit of the
Banks and the Agent as cash collateral for all Reimbursement Obligations
and otherwise as security for all other Obligations owing to the Banks or
Agent, and
(c) upon the termination of the Total Commitment, or the
acceleration of the Reimbursement Obligations with respect to all Letters
of Credit in accordance with ss.15, an amount equal to the then Maximum
Drawing Amount on all Letters of Credit, which amount shall be held by the
Agent for the benefit of the Banks and the Agent as cash collateral for
all Reimbursement Obligations and otherwise as security for all other
Obligations owing to the Banks or Agent.
Each such payment shall be made to the Agent at the Agent's Head Office in
immediately available funds. Interest on any and all amounts remaining
unpaid by the applicable Revolver Borrower under this ss.5.2 at any time
from the date such amounts become due and payable (whether as stated in
this ss.5.2, by
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acceleration or otherwise) until payment in full (whether before or after
judgment) shall be payable to the Agent on demand at the rate specified in
ss.6.11 for overdue principal on the Revolving Credit Loans.
5.3. Letter of Credit Payments. If any draft shall be presented or
other demand for payment shall be made under any Letter of Credit, the
Agent shall notify the applicable Revolver Borrower of the date and amount
of the draft presented or demand for payment and of the date and time when
it expects to pay such draft or honor such demand for payment. If such
Revolver Borrower fails to reimburse the Agent as provided in ss.5.2 on or
before the date that such draft is paid or other payment is made by the
Agent, the Agent may at any time thereafter notify the Banks of the amount
of any such Unpaid Reimbursement Obligation. No later than 3:00 p.m.
(Boston time) on the Business Day next following the receipt of such
notice, each Bank shall make available to the Agent, at the Agent's Head
Office, in Same Day Funds, such Bank's Commitment Percentage of such
Unpaid Reimbursement Obligation, together with an amount equal to the
product of (a) the average, computed for the period referred to in clause
(c) below, of the Overnight Rate for each day included in such period,
times (b) the amount equal to such Bank's Commitment Percentage of such
Unpaid Reimbursement Obligation, times (c) a fraction, the numerator of
which is the number of days that elapse from and including the date the
Agent paid the draft presented for honor or otherwise made payment to the
date on which such Bank's Commitment Percentage of such Unpaid
Reimbursement obligation shall become immediately available to the Agent,
and the denominator of which is 360. To the extent the Agent receives
interest on any Unpaid Reimbursement Obligation as contemplated by ss.5.2
hereof, the Agent shall distribute such interest ratably among the Banks
that have paid to the Agent their respective Commitment Percentage of such
Unpaid Reimbursement Obligation. The responsibility of the Agent to the
Revolver Borrowers and the Banks shall be only to determine that the
documents (including each draft) delivered under each Letter of Credit in
connection with such presentment shall be in conformity in all material
respects with such Letter of Credit.
5.4. Obligations Absolute. Each Revolver Borrower's obligations
under this ss.5 shall be absolute and unconditional under any and all
circumstances and irrespective of the occurrence of any Default or Event
of Default or any condition precedent whatsoever or any setoff,
counterclaim or defense to payment which such Revolver Borrower may have
or have had against the Agent, any Bank or any beneficiary of a Letter of
Credit. Each Revolver Borrower further agrees with the Agent and the Banks
that the Agent and the Banks shall not be responsible for, and the
Revolver Borrower's Reimbursement Obligations under ss.5.2 shall not be
affected by, among other things, the validity or genuineness of documents
or of any endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, fraudulent or forged, or any
dispute between or among such Revolver Borrower, the beneficiary of any
Letter of Credit or any financing institution or other party to which any
Letter of Credit
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may be transferred or any claims or defenses whatsoever of such Revolver
Borrower against the beneficiary of any Letter of Credit or any such
transferee. The Agent and the Banks shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter
of Credit. Each Revolver Borrower agrees that any action taken or omitted
by the Agent or any Bank under or in connection with each Letter of Credit
and the related drafts and documents, if done in good faith and without
gross negligence or willful misconduct, shall be binding upon such
Revolver Borrower and shall not result in any liability on the part of the
Agent or any Bank to such Revolver Borrower.
5.5. Reliance by Issuer. To the extent not inconsistent with ss.5.4,
the Agent shall be entitled to rely, and shall be fully protected in
relying upon, any Letter of Credit, draft, writing, resolution, notice,
consent, certificate, affidavit, letter, cablegram, telegram, telecopy,
telex or teletype message, statement, order or other document believed by
it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal counsel,
independent accountants and other experts selected by the Agent. The Agent
shall be fully justified in failing or refusing to take any action under
this Credit Agreement unless it shall first have received such advice or
concurrence of the Majority Banks or all Banks where unanimity is required
as it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Banks against any and all liability and
expense which may be incurred by it by reason of taking or continuing to
take any such action. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Credit Agreement in
accordance with a request of the Majority Banks or all Banks where
unanimity is required, and such request and any action taken or failure to
act pursuant thereto shall be binding upon the Banks and all future
holders of the Revolving Credit Notes or of a Letter of Credit
Participation.
5.6. Letter of Credit Fee. Each Revolver Borrower requesting a
Letter of Credit shall on the date of issuance or any extension or renewal
of any Letter of Credit pay to the Agent a fee (in each case, a "Letter of
Credit Fee") (a) in respect of each standby Letter of Credit calculated at
the Applicable Margin per annum for Eurocurrency Rate Loans of the face
amount of such standby Letter of Credit, plus a fee equal to one-quarter
of one percent (1/4%) per annum of the face amount of such standby Letter
of Credit for the account of the Agent, as a fronting fee, and the balance
of which Letter of Credit Fee shall be for the accounts of the Banks in
accordance with their respective Commitment Percentages and (b) in respect
of each documentary Letter of Credit calculated at the rate of the
Applicable Margin per annum for Eurocurrency Rate Loans on the face amount
of such documentary Letter of Credit, plus a fee equal to one-quarter of
one percent (1/4%) per annum of the face amount of such documentary Letter
of Credit for the account of the Agent, as a fronting fee, and the balance
of which Letter of Credit Fee shall be for the accounts of the Banks in
accordance with their respective Commitment Percentages. In respect of
each
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Letter of Credit, the Borrower shall also pay to the Agent for the Agent's
own account, at such other time or times as such charges are customarily
made by the Agent, the Agent's customary issuance, amendment, negotiation
or document examination and other administrative fees as in effect from
time to time. The fees payable pursuant to clauses (a) and (b) of the
preceding sentence shall be paid quarterly in arrears and the fees payable
pursuant to the preceding sentence shall be paid on the date of issuance,
amendment, extension or renewal of any Letter of Credit and at such other
time or times as such charges are customarily made by the Agent.
6. CERTAIN GENERAL PROVISIONS.
6.1. Closing Fee. The Company agrees to pay to the Agent a closing
fee in the amount and at the times specified in the Fee Letter.
6.2. Agent's Fee. The Company shall pay to the Agent for the Agent's
own account, an Agent's fee in the amount and at the times specified in
the Fee Letter.
6.3. Funds for Payments.
6.3.1. Payments to Agent. All payments of principal and interest on
Loans made to any Borrower which are denominated in Dollars, and all
Reimbursement Obligations, commitment fees, Letter of Credit Fees and any
other amounts due hereunder or under any of the other Loan Documents shall
be made on the due date thereof to the Agent, for the respective accounts
of the Banks and the Agent in Dollars, at the Agent's Head Office or at
such other place that the Agent may from time to time designate, in each
case at or about 11:00 a.m. (Boston, Massachusetts time or other local
time at the place of payment) and in Same Day Funds. All payments of
principal and interest on Revolving Credit Loans made to any Revolver
Borrower which are denominated in an Optional Currency and all other fees
hereunder by any local branch or affiliate of any Bank or the Agent
located outside of the United States shall be made by such Revolver
Borrower to the Agent in the currency of such Revolving Credit Loans, at
or prior to 11:00 a.m., local time, on any payment date, in Same Day
Funds, for the account of the Agent, at a depository designated by the
Agent in the country in which such Optional Currency is legal tender. Each
payment in respect of any Revolving Credit Loan made by a Borrower shall
be made in the same currency in which such Revolving Credit Loan was made
unless otherwise agreed by the Banks.
6.3.2. No Offset, etc. All payments by any Borrowers hereunder and
under any of the other Loan Documents shall be made without recoupment,
setoff or counterclaim and free and clear of and without deduction for any
taxes, levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other
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authority therein unless such Borrower is compelled by law to make such
deduction or withholding. If any such obligation is imposed upon any
Borrower with respect to any amount payable by it hereunder or under any
of the other Loan Documents, such Borrower will pay to the Agent, for the
account of the Banks or (as the case may be) the Agent, on the date on
which such amount is due and payable hereunder or under such other Loan
Document, such additional amount in Dollars as shall be necessary to
enable the Banks or the Agent to receive the same net amount which the
Banks or the Agent would have received on such due date had no such
obligation been imposed upon such Borrower. The applicable Borrower will
deliver promptly to the Agent certificates or other valid vouchers for all
taxes or other charges deducted from or paid with respect to payments made
such Borrower hereunder or under such other Loan Document.
6.4. Computations. All computations of interest on the Base Rate
Loans, the Sterling Base Rate Loans, and of Commitment Fees, Letter of
Credit Fees or other fees shall, unless otherwise expressly provided
herein, be based on a 365-day year and paid for the actual number of days
elapsed. All computations of interest on Eurocurrency Rate Loans shall,
unless otherwise expressly provided herein, be based on a 360-day year and
paid for the actual number of days elapsed. Except as otherwise provided
in the definition of the term "Interest Period" with respect to
Eurocurrency Rate Loans, whenever a payment hereunder or under any of the
other Loan Documents becomes due on a day that is not a Business Day, the
due date for such payment shall be extended to the next succeeding
Business Day, and interest shall accrue during such extension. The
outstanding amount of the Loans as reflected on the Revolving Credit Note
Records and the Term Note Records from time to time shall be considered
correct and binding on the applicable Borrower unless within five (5)
Business Days after receipt of any notice by the Agent or any of the Banks
of such outstanding amount, the Agent or such Bank shall notify such
Borrower to the contrary.
6.5. Inability to Determine Eurocurrency Rate. In the event, prior
to the commencement of any Interest Period relating to any Eurocurrency
Rate Loan, the Agent shall determine or be notified by the Majority Banks
that (a) adequate and reasonable methods do not exist for ascertaining the
Eurodollar Rate or the International Eurocurrency Rate, as the case may
be, that would otherwise determine the rate of interest to be applicable
to any Eurocurrency Rate Loan during any Interest Period or deposits of
Dollars or the relevant Optional Currency, as the case may be, in the
relevant Interest Period are not available to the Agent or the Banks in
any Eurocurrency Interbank Market, or (b) the Eurocurrency Rate determined
or to be determined for such Interest Period will not adequately and
fairly reflect the cost to the Banks of making or maintaining their
Eurocurrency Rate Loans during such period, the Agent shall forthwith give
notice of such determination (which shall be conclusive and binding on the
Borrowers and the Banks) to the Borrowers and the Banks. In such event (a)
any
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Loan Request or Conversion Request with respect to Eurocurrency Rate Loans
shall be automatically withdrawn and, in the case of Loans denominated in
Dollars, shall be deemed a request for Base Rate Loans to be denominated
in Dollars and in the case of any Eurocurrency Rate Loan denominated in an
Optional Currency, shall be withdrawn, (b) each Eurocurrency Rate Loan
will automatically, on the last day of the then current Interest Period
relating thereto, if denominated in Dollars, become a Base Rate Loan and
if denominated in any Optional Currency, be repaid, and (c) the
obligations of the Banks to make Eurocurrency Rate Loans or Revolving
Credit Loans denominated in such Optional Currency, as the case may be,
shall be suspended until the Agent or the Majority Banks determines that
the circumstances giving rise to such suspension no longer exist,
whereupon the Agent or, as the case may be, the Agent upon the instruction
of the Majority Banks, shall so notify the Borrowers and the Banks.
6.6. Illegality. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the
interpretation or application thereof shall make it unlawful for any Bank
to make or maintain Eurocurrency Rate Loans or perform its obligations in
respect of any Eurocurrency Rate Loans in an Optional Currency or
Currencies, such Bank shall forthwith give notice of such circumstances to
the Borrowers and the other Banks and thereupon (a) the commitment of such
Bank to make Eurocurrency Rate Loans or to convert Revolving Credit Loans
of another Type to Eurocurrency Rate Loans, as the case may be, shall
forthwith be suspended and (b) such Bank's Revolving Credit Loans then
outstanding as Eurocurrency Rate Loans and denominated in Dollars, if any,
shall be converted automatically to Base Rate Loans on the last day of
each Interest Period applicable to such Eurocurrency Rate Loans or within
such earlier period as may be required by law and the Eurocurrency Rate
Loans then outstanding as Eurocurrency Rate Loans and denominated in
Optional Currency, if any, shall be repaid on the last day of each
Interest Period applicable to such Eurocurrency Rate Loan or within such
earlier period as may be required by law. Each of the Borrowers hereby
agrees promptly to pay the Agent for the account of such Bank, upon demand
by such Bank, any additional amounts necessary to compensate such Bank for
any costs incurred by such Bank in making any conversion in accordance
with this ss.6.6, including any interest or fees payable by such Bank to
lenders of funds obtained by it in order to make or maintain its
Eurocurrency Rate Loans hereunder.
6.7. Additional Costs, etc. If any present or future applicable law,
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made
upon or otherwise issued to any Bank or the Agent by any central bank or
other fiscal, monetary or other authority (whether or not having the force
of law), shall:
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(a) subject any Bank or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Credit Agreement, the other Loan Documents, any Letters of Credit, such
Bank's Commitment or the Loans (other than taxes based upon or measured by
the income or profits of such Bank or the Agent), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Bank of the principal of or
the interest on any Loans or any other amounts payable to any Bank or the
Agent under this Credit Agreement or any of the other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement) any
special deposit, reserve, assessment, liquidity, capital adequacy or other
similar requirements (whether or not having the force of law) against
assets held by, or deposits in or for the account of, or loans by, or
letters of credit issued by, or commitments of an office of any Bank, or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
Documents, any Letters of Credit, the Loans, such Bank's Commitment, or
any class of loans, letters of credit or commitments of which any of the
Loans or such Bank's Commitment forms a part, and the result of any of the
foregoing is
(i) to increase the cost to any Bank of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such
Bank's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Bank or the
Agent hereunder on account of such Bank's Commitment, any Letter of
Credit or any of the Loans, or
(iii) to require such Bank or the Agent to make any payment or
to forego any interest or Reimbursement Obligation or other sum
payable hereunder, the amount of which payment or foregone interest
or Reimbursement Obligation or other sum is calculated by reference
to the gross amount of any sum receivable or deemed received by such
Bank or the Agent from any Borrower hereunder,
then, and in each such case, the Borrowers will, upon demand made by such
Bank or (as the case may be) the Agent at any time and from time to time
and as often as the occasion therefor may arise, pay to such Bank or the
Agent such additional amounts as will be sufficient to compensate such
Bank or the Agent for such additional cost, reduction, payment or foregone
interest or Reimbursement Obligation or other sum.
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6.8. Capital Adequacy. If after the date hereof any Bank or the
Agent determines that (a) the adoption of or change in any law,
governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) regarding capital requirements for banks or
bank holding companies or any change in the interpretation or application
thereof by a court or governmental authority with appropriate
jurisdiction, or (b) compliance by such Bank or the Agent or any
corporation controlling such Bank or the Agent with any law, governmental
rule, regulation, policy, guideline or directive (whether or not having
the force of law) of any such entity regarding capital adequacy, has the
effect of reducing the return on such Bank's or the Agent's commitment
with respect to any Loans to a level below that which such Bank or the
Agent could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's or the Agent's then existing
policies with respect to capital adequacy and assuming full utilization of
such entity's capital) by any amount deemed by such Bank or (as the case
may be) the Agent to be material, then such Bank or the Agent may notify
the Borrowers of such fact. To the extent that the amount of such
reduction in the return on capital is not reflected in the Base Rate, the
applicable Borrower agrees to pay such Bank or (as the case may be) the
Agent for the amount of such reduction in the return on capital as and
when such reduction is determined upon presentation by such Bank or (as
the case may be) the Agent of a certificate in accordance with ss.6.9
hereof. Each Bank shall allocate such cost increases among its customers
in good faith and on an equitable basis.
6.9. Certificate. A certificate setting forth any additional amounts
payable pursuant to ss.ss.6.7 or 6.8 and a brief explanation of such
amounts which are due, submitted by any Bank or the Agent to the Company,
shall be conclusive, absent manifest error, that such amounts are due and
owing.
6.10. Indemnity. Each of the Borrowers agrees to indemnify each Bank
and to hold each Bank harmless from and against any loss, cost or expense
(including loss of anticipated profits) that such Bank may sustain or
incur as a consequence of (a) a default by any Borrower in payment of the
principal amount of or any interest on any Eurocurrency Rate Loans as and
when due and payable, including any such loss or expense arising from
interest or fees payable by such Bank to lenders of funds obtained by it
in order to maintain its Eurocurrency Rate Loans (b) a default by any
Borrower in making a borrowing or conversion after such Borrower has given
(or is deemed to have given) a Loan Request, notice (in the case of all or
any portion of the Term Loans pursuant to ss.4.6.2) or a Conversion
Request relating thereto in accordance with ss.2.6 or ss.2.7 or ss.4.6 or
(c) the making of any payment of a Eurocurrency Rate Loan or the making of
any conversion of any such Loan to a Base Rate Loan on a day that is not
the last day of the applicable Interest Period with respect thereto,
including interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain any such Loans.
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6.11. Interest After Default.
6.11.1. Overdue Amounts. Overdue principal and (to the extent
permitted by applicable law) interest on the Loans and all other overdue
amounts payable hereunder or under any of the other Loan Documents shall
bear interest compounded monthly and payable on demand at a rate per annum
equal to three percent (3%) above (a) the rate otherwise applicable to
such Revolving Credit Loans pursuant to ss.2.5 (with respect to Revolving
Credit Loans other than advances made pursuant to the Overdraft Facility)
and the Term Loan pursuant to ss.4.6, and (b) the Sterling Base Rate with
respect to the Overdraft Facility, until such amount shall be paid in full
(after as well as before judgment).
6.11.2. Amounts Not Overdue. During the continuance of a Default or
an Event of Default the principal of the Revolving Credit Loans and the
Term Loan not overdue shall, until such Default or Event of Default has
been cured or remedied or such Default or Event of Default has been waived
by the Majority Banks pursuant to ss.27, bear interest at a rate per annum
equal to the greater of (a) two percent (2%) above the rate of interest
otherwise applicable to such Revolving Credit Loans pursuant to ss.2.5 and
the Term Loan pursuant to ss.4.6 and (b) the rate of interest applicable
to overdue principal pursuant to ss.6.11.1.
6.12. Currency Matters.
6.12.1. Currency of Account.
Dollars are the currency of account and payment for each and
every sum at any time due from the Borrowers hereunder; provided
that:
(a) except as expressly provided in this Credit Agreement,
each repayment of a Loan or a part thereof shall be made in the
currency in which such Loan is denominated at the time of that
repayment;
(b) each payment of interest shall be made in the currency in
which such principal or other sum in respect of which such interest
is payable, is denominated;
(c) each payment of Letter of Credit Fees and the Commitment
Fees shall be in Dollars;
(d) each payment in respect of costs, expenses and indemnities
shall be made in the currency in which the same were incurred; and
(e) any amount expressed to be payable in a currency other
than Dollars shall be paid in that other currency.
No payment to the Agent or any Bank (whether under any
judgment or court order or otherwise) shall discharge the obligation
or liability in respect of which it was made unless and until the
Agent or
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such Bank shall have received payment in full in the currency in
which such obligation or liability was incurred, and to the extent
that the amount of any such payment shall, on actual conversion into
such currency, fall short of such obligation or liability actual or
contingent expressed in that currency, the Borrowers shall indemnify
and hold harmless the Agent, the Issuing Bank or such Bank, as the
case may be, with respect to the amount of the shortfall, with such
indemnity surviving the termination of this Credit Agreement and any
legal proceeding, judgment or court order pursuant to which the
original payment was made which resulted in the shortfall.
6.12.2. Currency Fluctuations.
(a) Not later than 1:00 p.m. (Boston time) on the last
Business Day of each calendar month (the "Calculation Date"), the
Agent shall determine the Dollar Equivalent as of such date. The
Dollar Equivalent so determined shall become effective on the first
Business Day immediately following such determination (a "Reset
Date") and shall remain effective until the next succeeding Reset
Date.
(b) If, on any Reset Date and on the Revolving Credit Loan
Maturity Date, the Dollar Equivalent of the aggregate outstanding
amount of all Revolving Credit Loans, the Maximum Drawing Amount and
all Unpaid Reimbursement Obligations exceeds the Total Commitment
for three (3) or more consecutive Business Days (but only as to the
Reset Date), then the Revolver Borrowers shall repay or prepay the
Revolving Credit Loans in accordance with this Credit Agreement in
an aggregate principal amount such that, after giving effect
thereto, the aggregate outstanding amount (expressed in Dollars) of
all Revolving Credit Loans plus the Maximum Drawing Amount and all
Unpaid Reimbursement Obligations no longer exceeds the Total
Commitment (expressed in Dollars).
(c) Without limiting subsection ss.6.12.2(b), if, on any day
prior to the Revolving Credit Loan Maturity Date, the aggregate
outstanding amount (expressed in Dollars) of all Revolving Credit
Loans plus the Maximum Drawing Amount plus the Unpaid Reimbursement
Obligations exceeds the Total Commitment by five percent (5%) or
more, then (i) the Agent shall give notice thereof to the Revolver
Borrowers and the Banks and (ii) within two (2) Business Days
thereafter, the Borrowers shall repay or prepay the Revolving Credit
Loans in accordance with this Credit Agreement in an aggregate
principal amount such that, after giving effect thereto, the
aggregate outstanding amount (expressed in Dollars) of all Revolving
Credit Loans plus the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations no longer exceeds the Total Commitment
(expressed in Dollars). Nothing set forth in this ss.6.12.2 shall be
construed to require the Agent to calculate daily
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compliance under this ss.6.12.2 unless expressly requested to do so
by a Bank.
6.13. Replacement Bank. Within thirty (30) days after any Bank has
(a) given notice pursuant to ss.6.6 or (b) demanded compensation from any
Borrower pursuant to ss.ss.6.7 or 6.8 hereof or any Bank has become a
Delinquent Bank, as defined in ss.17.5.3 hereof (any such Bank described
in the foregoing is hereinafter referred to as an "Affected Bank"), the
Company may request that the Non-Affected Banks acquire all, but not less
than all, of the Affected Bank's outstanding Loans and assume all, but not
less than all, of the Affected Bank's Commitment. If the Company so
requests, the Non-Affected Banks may elect to acquire all or any portion
of the Affected Bank's outstanding Loans and to assume all or any portion
of the Affected Bank's Commitment. If the Non-Affected Banks do not elect
to acquire and assume all of the Affected Bank's outstanding Loans and
Commitment, the Company may designate a replacement bank or banks, which
must be an Eligible Assignee and must also be satisfactory to the Agent,
to acquire and assume that portion of the outstanding Loans and Commitment
of the Affected Bank not being acquired and assumed by the Non-Affected
Banks. The provisions of ss.20 hereof shall apply to all reallocations
pursuant to this ss.6.13, and the Affected Bank and any Non-Affected Banks
and/or replacement banks which are to acquire the Loans and Commitment of
the Affected Bank shall execute and deliver to the Agent, in accordance
with the provisions of ss.20 hereof, such Assignments and Acceptances and
other instruments, including, without limitation, Notes, as are required
pursuant to ss.20 hereof to give effect to such reallocations. Any
Non-Affected Banks and/or replacement banks which are to acquire the Loans
and Commitment of the Affected Bank shall be deemed to be Eligible
Assignees for all purposes of ss.20 hereof. On the effective date of the
applicable Assignments and Acceptances, the Company shall pay to the
Affected Bank all interest accrued on its Loans up to but excluding such
date, along with any fees payable to such Affected Bank hereunder up to
but excluding such date.
6.14. European Monetary Union.
(a) If, as a result of the implementation of the EMU in the United
Kingdom,
(i) Sterling ceases to be lawful currency of the United Kingdom and
is replaced by the Euro as the lawful currency of such nation, or
(ii) Sterling and the Euro are at the same time recognized by the
central bank or comparable authority of the United Kingdom as lawful
currency of such nation and the Agent or the Majority Banks shall so
request and the Revolver Borrowers shall so consent or the Revolver
Borrowers shall so request and the Agent or the Majority Banks shall so
consent, in a notice delivered to the Borrowers,
then:
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(A) any amount payable hereunder by the Banks to
the Revolver Borrowers, or by any Revolver Borrower to
the Banks in Sterling shall instead be payable in the
Euro and the amount so payable shall be determined by
translating the amount payable in Sterling to the Euro
at the exchange rate recognized by the European Central
Bank for the purpose of implementing the EMU, and
(B) if so specified in the notice delivered under
the foregoing clause (ii) or in any subsequent notice
referring to such clause, Sterling recognized at the
same time as the Euro shall no longer be available as an
Optional Currency for purposes of this Credit Agreement,
effective at the expiration of the period of five (5)
Business Days following the Borrowers' receipt of such
notice. Such notice shall apply to (1) any Revolving
Credit Loan to be made on or after the expiration of
such five (5) Business Day period or (2) any Revolving
Credit Loan outstanding at the end of such five (5)
Business Day period and denominated in such Optional
Currency, following the expiration of the Interest
Period applicable to such outstanding Revolving Credit
Loan at the time of the expiration of such five (5)
Business Day period.
(b) The Agent may in its discretion by notice to the Banks and the
Revolver Borrowers:
(i) modify the definition of "Business Day" to include a
principal financial center of any Participating Member State where
Revolving Credit Loans to bear interest by reference to the Euro
Interbank Rate are funded, or any amounts are or are to be paid in
Euros;
(ii) designate an account or accounts at a bank in a principal
financial center of any Participating Member State for receiving
payments to the Agent, whether for the account of the Agent or for
the account of the Banks, in immediately available funds, in Euros
or for disbursing Revolving Credit Loans to bear interest by
reference to the Euro Interbank Rate;
(iii) designate the date or time for fixing the Euro Interbank
Rate for any Interest Period to be consistent with any practice or
convention in the London interbank market;
(iv) designate other mechanics for fixing the Euro Interbank
Rate to be, in the reasonable judgment of the Agent, as nearly as
may be, consistent with the mechanics for determining rates for
other Optional Currencies (e.g. by reference to Reuters screen or
page) and also consistent with any practice or convention in the
London interbank market (e.g. by reference to a comparable Reuters
screen or page for the Euro);
(v) designate the period of notice from the Revolver Borrowers
to the Agent required for the Revolver Borrowers to borrow any
Revolving Credit Loan
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to be denominated in Euros or to convert any Revolving Credit Loan
denominated in another Optional Currency to a Revolving Credit Loan
denominated in Euros;
(vi) designate the basis of accrual of interest, fees or other
amounts to be consistent with any practice or convention in the
London interbank market with respect to amounts calculated or
payable in Euros;
(vii) where this Credit Agreement specifies a minimum amount
or integral multiple thereof, designate what the Agent considers a
reasonably comparable and convenient minimum amount and integral
multiple for the Euro; and
(viii) where this Credit Agreement specifies an amount to be
paid in an Optional Currency that is, under the terms of this
Section, to be paid in Euros, designate a convenient amount in Euros
to account for de minimis rounding.
(d) Section 6.5 shall not apply in the event that Sterling is not
available or an interbank offered rate may not be quoted for Sterling,
solely because Sterling ceases to be lawful currency of the nation issuing
Sterling and is replaced by the Euro as the lawful currency of such
nation, so long as the Euro is available as an Optional Currency and the
Euro Interbank Rate may be quoted for the Euro.
(e) Each Revolver Borrower agrees, at the request of the Majority
Banks, at the time of or at any time following the implementation of the
EMU in the United Kingdom and within thirty (30) days following such
request, to enter into an agreement amending this Credit Agreement in such
manner as the Majority Banks shall reasonably specify in order further to
reflect the implementation of the EMU and to place the parties hereto in
the position they would have been in had the EMU not been implemented in
the United Kingdom.
(f) Each Revolver Borrower agrees, at the request of any Bank, to
compensate such Bank for any reasonable loss, cost, expense or reduction
in return that shall be incurred or sustained by such Bank as a result of
the implementation of the EMU and that would not have been incurred or
sustained but for the transactions provided for herein. A certificate of a
Bank setting forth (i) the amount or amounts necessary to compensate such
Bank, (ii) a description of the nature of the loss or expense sustained or
incurred by such Bank as a consequence thereof and (iii) a reasonably
detailed explanation of the calculation thereof shall be delivered to such
Revolver Borrower and shall be conclusive absent manifest error. Each
Borrower shall pay such Bank the amount shown as due on any such
certificate within ten (10) days after receipt thereof.
6.15. Lending Office. Each Revolving Credit Loan made by any Bank in an
Optional Currency, and each payment by any Revolver Borrower in respect thereof,
shall be made by, or, as the case may be, for the account of, such applicable
lending office of the Agent as the Agent shall designate.
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7. COLLATERAL SECURITY.
The Borrowers covenant and agree that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit, or Note is outstanding or any Bank
has any obligation to make any Loans or the Agent has any obligation to issue,
extend or renew any Letters of Credit:
7.1. Security of Borrowers. The Obligations of the Borrowers shall
be secured by a perfected first priority security interest (subject only
to Permitted Liens entitled to priority under applicable law) in
substantially all of the assets of each such Borrower, whether now owned
or hereafter acquired, pursuant to the terms of the Security Documents to
which such Borrower is a party.
7.2. Guaranties and Security of Subsidiaries. Certain of the
Obligations shall be guaranteed by the Guarantors pursuant to the terms of
the Guarantees. The obligations of the Guarantors shall be secured by a
perfected first priority security interest (subject only to Permitted
Liens entitled to priority under applicable law) in substantially all of
the assets of each such Guarantor, pursuant to the terms of the Security
Documents to which such Guarantors are a party.
8. GUARANTY.
8.1. Guaranty. For value received and hereby acknowledged and as an
inducement to the Banks to make Eurocurrency Rate Loans to the Borrowers,
including the Borrowing Subsidiaries, (a) the Company hereby
unconditionally and irrevocably guarantees: (i) the full punctual payment
when due, whether at stated maturity, by acceleration or otherwise, of all
obligations of each Borrower now or hereafter existing hereunder whether
for principal, interest, fees, expenses or otherwise, and (ii) the strict
performance and observance by each such Borrower of all agreements,
warranties and covenants in this Credit Agreement applicable to each such
Borrower (such obligations collectively being the "Guaranteed
Obligations"); and (b) each UK Borrower hereby unconditionally and
irrevocably guarantees: (i) the full punctual payment when due, whether at
stated maturity, by acceleration or otherwise, of all obligations of each
other Borrowing Subsidiary now or hereafter existing hereunder whether for
principal, interest, fees, expenses or otherwise, and (ii) the strict
performance and observance by each such other Borrowing Subsidiary of all
agreements, warranties and covenants in this Credit Agreement applicable
to each such Borrowing Subsidiary (such obligations collectively being the
"Subsidiary Guaranteed Obligations");.
8.2. Guaranty Absolute. Each of the Company and the UK Borrowers
guarantees that the Guaranteed Obligations and the Subsidiary Guaranteed
Obligations, as the case may be, will be paid strictly in accordance with
the terms hereof, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agent or any Bank with respect thereto. The liability of the
Company under this guaranty
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with regard to the Guaranteed Obligations of each Borrower, and the
liability of each UK Borrower under this guaranty with regard to the
Subsidiary Guaranteed Obligations of each other Borrowing Subsidiary,
shall be absolute and unconditional irrespective of:
(a) any lack of authorization, execution, validity or enforceability
or any illegality of such Borrower to become a Borrower hereunder, this
Credit Agreement and any amendment hereof (with regard to such Guaranteed
Obligations and the Subsidiary Guaranteed Obligations, as the case may
be), or any other obligation, agreement or instrument relating thereto (it
being agreed by the Company and each UK Borrower that the Guaranteed
Obligations and the Subsidiary Guaranteed Obligations shall not be
discharged prior to the final and complete satisfaction of all of the
Obligations of the Borrowers) or any failure to obtain any necessary
governmental consent or approvals or necessary third party consents or
approvals;
(b) the Agent's or any Bank's exercise or enforcement of, or failure
or delay in exercising or enforcing, legal proceedings to collect the
Obligations or the Guaranteed Obligations or the Subsidiary Guaranteed
Obligations, as the case may be, or any power, right or remedy with
respect to any of the Obligations or the Guaranteed Obligations or
Subsidiary Guaranteed Obligations, as the case may be, including (i) any
suspension of the Agent's or any Bank's right to enforce against any other
Borrower of the Guaranteed Obligations or the Subsidiary Guaranteed
Obligations, as the case may be, or (ii) any change in the time, manner or
place of payment of, or in any other term of, all or any of the Guaranteed
Obligations of such Borrower or the Subsidiary Guaranteed Obligations of
such Borrowing Subsidiary or any other amendment or waiver of or any
consent to departure from this Credit Agreement or the other Loan
Documents (with regard to such Guaranteed Obligations and Subsidiary
Guaranteed Obligations) or any other agreement or instrument governing or
evidencing any of the Guaranteed Obligations or Subsidiary Guaranteed
Obligations, as the case may be;
(c) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Guaranteed Obligations of such
Borrower or the Subsidiary Guaranteed Obligations of such Borrowing
Subsidiary;
(d) any change in ownership of such Borrower;
(e) any acceptance of any partial payment(s) from such Borrower;
(f) any insolvency, bankruptcy, reorganization, arrangement,
adjustment, composition, assignment for the benefit of creditors,
appointment of a receiver, examiner or trustee for all or any part of any
Borrower's assets;
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(g) any assignment, participation or other transfer, in whole or in
part, of the Agent's or any Bank's interest in and rights under this
Credit Agreement or any other Loan Document, or of the Agent's or any
Bank's interest in the obligations or the Guaranteed Obligations or
Subsidiary Guaranteed Obligations, as the case may be;
(h) any cancellation, renunciation or surrender of any pledge,
guaranty or any debt instrument evidencing the Obligations or the
Guaranteed Obligations or Subsidiary Guaranteed Obligations, as the case
may be;
(i) the Agent's or any Bank's vote, claim, distribution, election,
acceptance, action or inaction in any bankruptcy or reorganization case
related to the Obligations or the Guaranteed Obligations or Subsidiary
Guaranteed Obligations, as the case may be; or
(j) any other action or circumstance, other than payment, which
might otherwise constitute a defense available to, or a discharge of, such
Borrower in respect of its Guaranteed Obligations or Subsidiary Guaranteed
Obligations, as the case may be.
This guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any Guaranteed Obligation
or Subsidiary Guaranteed Obligations, as the case may be, is rescinded or
must otherwise be returned by the Agent or any Bank upon the insolvency,
bankruptcy or reorganization, examination of any Borrower or otherwise,
all as though such payment had not been made.
8.3. Effectiveness, Enforcement. The guaranty herein of the Company
and each UK Borrower shall be effective and shall be deemed to be made
with respect to each Loan made to a Borrower as of the time it is made. No
invalidity, irregularity or unenforceability by reason of any bankruptcy
or similar law, or any law or order of any government or agency thereof
purporting to reduce, amend or otherwise affect any liability of a
Borrower, and no defect in or insufficiency or want of powers of any
Borrower or irregular or improperly recorded exercise thereof, shall
impair, affect, be a defense to or claim against such guaranty. This
guaranty is a continuing guaranty and shall (a) survive any termination of
this Credit Agreement and (b) remain in full force and effect until
payment in full and performance of all Guaranteed Obligations or
Subsidiary Guaranteed Obligations, as the case may be, and all other
amounts payable under this guaranty. This guaranty is made for the benefit
of the Agent and each of the Banks and their respective successors and
assigns, and may be enforced from time to time as often as occasion
therefor may arise and without requirement on the part of the Agent or any
Bank first to exercise any rights against any Borrower or to exhaust any
remedies available to it against any Borrower or to resort to any other
source or means of obtaining payment of any of the Guaranteed Obligations
or Subsidiary Guaranteed Obligations, as the case may be, or to elect any
other remedy. In the event that acceleration of the time
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for payment (or the giving of notice of such acceleration) of the
Guaranteed Obligations or Subsidiary Guaranteed Obligations, as the case
may be, of any Borrower is stayed upon the insolvency, bankruptcy,
examination or reorganization, of such Borrower or for any other reason,
all such amounts otherwise subject to acceleration under the terms of this
Credit Agreement shall be immediately due and payable by the Company or
the UK Borrowers, as the case may be, under the guaranty herein provided.
8.4. Waiver. Each of the Company and the UK Borrowers hereby waives
promptness, diligence, protest, notice of protest, all suretyship
defenses, notice of acceptance and any other notice with respect to any of
the Guaranteed Obligations or Subsidiary Guaranteed Obligations, as the
case may be, and this guaranty and any requirement that the Agent or any
Bank secure, perfect or protect any security interest or lien or any
property subject thereto or exhaust any right or take any action against
any Borrower or any other person or any collateral. The Company and each
UK Borrower also irrevocably waives, to the fullest extent permitted by
law, all defenses which at any time may be available to it in respect of
the Guaranteed Obligations or Subsidiary Guaranteed Obligations, as the
case may be, by virtue of any statute of limitations, valuation, stay,
moratorium law or other similar law now or hereafter in effect.
8.5. Subordination; Subrogation. Until the payment and performance
in full of all the Obligations, neither the Company nor any UK Borrower
shall exercise and hereby waives any rights against any Borrower as a
result of payment by the Company or any UK Borrower, as the case may be,
hereunder, by way of subrogation, reimbursement, restitution, contribution
or otherwise, and the Company or any UK Borrower, as the case may be, will
not prove any claim in competition with the Agent or any Bank in respect
of any payment hereunder in bankruptcy, insolvency or reorganization
proceedings of any nature; the Company or any UK Borrower, as the case may
be, will not claim any set-off, recoupment or counterclaim against the
Borrowers in respect of any liability of the Company or such UK Borrower
to such Borrower; and the Company and each UK Borrower waives any benefit
of and any right to participate in any collateral which may be held by the
Agent and any Bank. The payment of any amounts due with respect to any
Indebtedness of the Borrowers now or hereafter held by the Company or any
UK Borrower, as the case may be, is hereby subordinated to the prior
payment in full of the Guaranteed Obligations or Subsidiary Guaranteed
Obligations, as the case may be. Each of the Company and each UK Borrower
agrees that after the occurrence of any default in the payment or
performance of the Guaranteed Obligations or Subsidiary Guaranteed
Obligations, as the case may be, the Company or such UK Borrower, as the
case may be, will not demand, ▇▇▇ for, or otherwise attempt to collect any
such Indebtedness of any of the Borrowers to the Company or such UK
Borrower, as the case may be, until the Guaranteed Obligations or
Subsidiary Guaranteed Obligations, as the case may be, then due shall have
been paid in full. If, notwithstanding the foregoing sentence, the Company
or any UK
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Borrower, as the case may be, shall collect or receive any amounts in
respect of such indebtedness, such amounts shall be collected and received
by the Company or such UK Borrower, as the case may be, as trustee for the
Agent and the Banks and be paid over to the Agent for the respective
accounts of the Agent and the Banks on account of the Guaranteed
Obligations or Subsidiary Guaranteed Obligations, as the case may be,
without affecting in any manner the liability of the Company or any UK
Borrower under the other provisions of this ss.8. The provisions of this
section shall survive the expiration or termination of the Credit
Agreement and the other Loan Documents and the provisions of this section
shall be supplemental to and not in derogation of any rights and remedies
of the Agent or any Bank under any separate subordination agreement which
the Agent or any Bank may at any time and from time to time entered into
with the Company or any UK Borrower for the benefit of the Agent or any
Bank.
8.6. Payments. All payments made by the Company or any UK Borrower
pursuant to this ss.8 in respect of any Loans made to any Borrower shall
be made in the same currency in which such Loan was made, unless otherwise
agreed to in writing by the Agent or the Banks.
8.7. Receipt of Information. Each of the Company and each UK
Borrower acknowledges and confirms that the Company or such UK Borrower,
as the case may be, itself has established its own adequate means of
obtaining from each Borrower on a continuing basis all information desired
by the Company or such UK Borrower concerning the financial condition of
any Borrower and that the Company or such UK Borrower will look to each
Borrower and not to the Agent or any Bank in order for the Company or such
UK Borrower to keep adequately informed of changes in each Borrower's
financial condition.
9. REPRESENTATIONS AND WARRANTIES.
9.1. Corporate Authority.
9.1.1. Incorporation; Good Standing. Each Borrower represents and
warrants to the Banks that such Borrower and its Subsidiaries (a) is a
corporation (or similar business entity) duly organized, validly existing
and in good standing under the laws of its state or country of
incorporation or formation, (b) has all requisite corporate or similar
power to own its property and conduct its business as now conducted and as
presently contemplated, and (c) is in good standing as a foreign
corporation (or similar business entity) and is duly authorized to do
business in each jurisdiction where such qualification is necessary except
where a failure to be so qualified would not have a materially adverse
effect on the business, assets or financial condition of such Borrower or
such Subsidiary.
9.1.2. Authorization. Each Borrower represents and warrants to the
Banks that the execution, delivery and performance of this Credit
Agreement and the other Loan Documents to which such Borrower or any of
its Subsidiaries is or is to become a party and the transactions
contemplated hereby and thereby
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(a) are within the corporate (or similar) authority of such Person, (b)
have been duly authorized by all necessary corporate (or similar
organizational) proceedings, (c) do not conflict with or result in any
breach or contravention of any provision of law, statute, rule or
regulation to which such Borrower or any of its Subsidiaries is subject or
any judgment, order, writ, injunction, license or permit applicable to
such Borrower or any of its Subsidiaries and (d) do not conflict with any
provision of the corporate charter, memorandum and articles of association
or bylaws of, or any agreement or other instrument binding upon, such
Borrower or any of its Subsidiaries.
9.1.3. Enforceability. Each Borrower represents and warrants to the
Banks that the execution and delivery of this Credit Agreement and the
other Loan Documents to which such Borrower or any of its Subsidiaries is
or is to become a party will result in valid and legally binding
obligations of such Person enforceable against it in accordance with the
respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief is
subject to the discretion of the court before which any proceeding
therefor may be brought.
9.2. Governmental Approvals. Each Borrower represents and warrants
to the Banks that the execution, delivery and performance by such Borrower
and any of its Subsidiaries of this Credit Agreement and the other Loan
Documents to which such Borrower or any of its Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby
(including, but not limited to the making by such Borrower of the
borrowings contemplated by this Credit Agreement or the obtaining of any
Letters of Credit) do not require the approval, consent, order,
authorization or license by, or giving notice to, or taking any other
action with respect to, any governmental agency or authority of any
jurisdiction, or other fiscal, monetary or other authority, under any
provisions of any laws or governmental rules, regulations, orders or
decrees of any jurisdiction or the central bank of any jurisdiction or
other fiscal monetary or other authority, under any provisions of any laws
or governmental rules, regulations, orders or decrees of any jurisdiction
applicable to and binding on such Borrower other than those already
obtained.
9.3. Title to Properties; Leases. The Company represents and
warrants to the Banks that except as indicated on Schedule 9.3 hereto, the
Company and its Subsidiaries own all of the assets reflected in the
consolidated balance sheet of the Company and its Subsidiaries as at the
Balance Sheet Date or acquired since that date (except property and assets
sold or otherwise disposed of in the ordinary course of business since
that date), subject to no rights of others, including any mortgages,
leases, conditional sales agreements, title retention agreements, liens or
other encumbrances except Permitted Liens.
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9.4. Financial Statements and Projections.
9.4.1. Financial Statements. The Company represents and warrants to
the Banks that there has been furnished to each of the Banks a
consolidated balance sheet of the Company and its Subsidiaries as at the
Balance Sheet Date, and a consolidated statement of income and cash flow
of the Company and its Subsidiaries for the fiscal year then ended,
certified by PricewaterhouseCoopers LLP. There has also been furnished to
each of the Banks the management prepared consolidated balance sheet and
consolidated statement of income and cash flow of Nicolet and Sierra for
each of the fiscal years 1995, 1996, 1997 and 1998, the management
prepared projections of Nicolet and Sierra for the fiscal year 1999 and,
prior to the AutoDiagnos Acquisition Closing Date, the consolidated
balance sheet and consolidated statement of income and cash flow of
AutoDiagnos (which financial statements shall have been accurately and
completely translated into English) for the fiscal years 1997, 1998 and
1999. Such balance sheets and statements of income and cash flow have been
prepared in accordance with generally accepted accounting principles and
fairly present the financial condition of the Company and its Subsidiaries
as at the close of business on the date thereof and the results of
operations for the fiscal year then ended. There are no contingent
liabilities of the Company or any of its Subsidiaries or Nicolet, Sierra
or AutoDiagnos as of such date involving material amounts, known to the
officers of the Company, which were not disclosed in such balance sheet
and the notes related thereto.
9.4.2. Projections. The Company represents and warrants to the Agent
and the Banks that the projections of the annual operating budgets of the
Company and its Subsidiaries on a consolidated basis, balance sheets and
cash flow statements for the 2000 to 2004 fiscal years and the quarterly
operating budgets of the Company and its Subsidiaries on a consolidated
basis, balance sheets and cash flow statements for the 2000 fiscal year,
copies of which have been delivered to each Bank, disclose all assumptions
made with respect to general economic, financial and market conditions
used in formulating such projections. To the knowledge of the Company or
any of its Subsidiaries, no facts exist that (individually or in the
aggregate) would result in any material change in any of such projections.
The projections are based upon reasonable estimates and assumptions, have
been prepared on the basis of the assumptions stated therein and reflect
the reasonable estimates of the Company and its Subsidiaries of the
results of operations and other information projected therein.
9.4.3. Solvency. The Company represents and warrants to the Agent
and the Banks that the Company and its Subsidiaries, on a consolidated and
consolidating basis, both before and after giving effect to the
transactions contemplated by this Credit Agreement and the other Loan
Documents (a) are solvent, (b) have assets having a fair value in excess
of their liabilities, (c) have assets having a fair value in excess of the
amount required to pay their liabilities on existing debts as such debts
become absolute and matured, and (d) have, and expect to continue to have,
access to adequate capital for the conduct of their
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business and the ability to pay their debts from time to time incurred in
connection with the operation of their business as such debts mature.
9.5. No Material Changes, etc. The Company represents and warrants
that since the Balance Sheet Date there has occurred no materially adverse
change in the financial condition or business of the Company and its
Subsidiaries as shown on or reflected in the consolidated balance sheet of
the Company and its Subsidiaries as at the Balance Sheet Date, or the
consolidated statement of income for the fiscal year then ended or which
relate to AutoDiagnos, Sierra or Nicolet (but as to AutoDiagnos, such
representation shall only be made from and after the AutoDiagnos
Acquisition Closing Date) as shown on the most recent financial statements
delivered to the Company by AutoDiagnos, Sierra and Nicolet, other than
changes in the ordinary course of business that have not had any
materially adverse effect either individually or in the aggregate on the
business or financial condition of the Company or any of its Subsidiaries
or AutoDiagnos, Sierra or Nicolet. Since the Balance Sheet Date, neither
the Company nor any of its Subsidiaries has made any Distributions.
9.6. Franchises, Patents, Copyrights, etc. Each Borrower represents
and warrants to the Banks that such Borrower and its Subsidiaries
possesses all franchises, patents, copyrights, trademarks, trade names,
licenses and permits, and rights in respect of the foregoing, adequate for
the conduct of its business substantially as now conducted without known
conflict with any rights of others.
9.7. Litigation. Each Borrower represents and warrants to the Banks
that except as set forth in Schedule 9.7 hereto, there are no actions,
suits, proceedings or investigations of any kind pending or threatened
against such Borrower or any of its Subsidiaries before any court,
tribunal or administrative agency or board that, if adversely determined,
might, either in any case or in the aggregate, materially adversely affect
the properties, assets, financial condition or business of such Borrowers
and its Subsidiaries or materially impair the right of such Borrowers and
its Subsidiaries, considered as a whole, to carry on business
substantially as now conducted by them, or result in any substantial
liability not adequately covered by insurance, or for which adequate
reserves are not maintained on the consolidated balance sheet of the
Company and its Subsidiaries, or which question the validity of this
Credit Agreement or any of the other Loan Documents, or any action taken
or to be taken pursuant hereto or thereto.
9.8. No Materially Adverse Contracts, etc. Each Borrower represents
and warrants to the Banks that neither such Borrower nor any of its
Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation that has
or is expected in the future to have a materially adverse effect on the
business, assets or financial condition of any of such Borrowers or any of
its Subsidiaries. Neither such Borrower nor any of its Subsidiaries is a
party to any contract or agreement that has or is expected, in the
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judgment of such Borrower's officers, to have any materially adverse
effect on the business of such Borrower or any of its Subsidiaries.
9.9. Compliance with Other Instruments, Laws, etc. Each Borrower
represents and warrants to the Banks that neither such Borrower nor any of
its Subsidiaries is in violation of any provision of its charter
documents, bylaws, or any agreement or instrument to which it may be
subject or by which it or any of its properties may be bound or any
decree, order, judgment, statute, license, rule or regulation, in any of
the foregoing cases in a manner that could result in the imposition of
substantial penalties or materially and adversely affect the financial
condition, properties or business of such Borrower or any of its
Subsidiaries.
9.10. Tax Status. Each Borrower represents and warrants to the Banks
that such Borrower and its Subsidiaries (a) have made or filed all
federal, state and, if applicable, foreign income and all other tax
returns, reports and declarations required by any jurisdiction to which
any of them is subject, (b) have paid all taxes and other governmental
assessments and charges shown or determined to be due on such returns,
reports and declarations, except those being contested in good faith and
by appropriate proceedings and (c) have set aside on their books
provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations
apply. Except as set forth on Schedule 9.10 hereto, there are no unpaid
taxes in any material amount claimed to be due by the taxing authority of
any jurisdiction, and the officers of the Company know of no basis for any
such claim.
9.11. No Event of Default. Each Borrower represents and warrants to
the Banks that as to itself and its Subsidiaries no Default or Event of
Default has occurred and is continuing.
9.12. Holding Company and Investment Company Acts. Each Borrower
represents and warrants to the Banks that neither such Borrower nor any of
its Subsidiaries is a "holding company", or a "subsidiary company" of a
"holding company", or an "affiliate" of a "holding company", as such terms
are defined in the Public Utility Holding Company Act of 1935; nor is it
an "investment company", or an "affiliated company" or a "principal
underwriter" of an "investment company", as such terms are defined in the
Investment Company Act of 1940.
9.13. Absence of Financing Statements, etc. Each Borrower represents
and warrants to the Banks that except with respect to Permitted Liens,
there is no financing statement, registration statement, security
agreement, chattel mortgage, real estate mortgage, fixed charge, floating
charge, legal charge, equitable mortgage, legal mortgage, pledge or other
document filed or recorded with any filing records, registry or other
public office, that purports to cover, affect or give notice of any
present or possible future lien on, or security interest
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in, any assets or property of such Borrower or any of its Subsidiaries or
any rights relating thereto.
9.14. Certain Transactions. Each Borrower represents and warrants to
the Banks that except as set forth on Schedule 9.14 hereto and except for
arm's length transactions pursuant to which such Borrower or any of its
Subsidiaries makes payments in the ordinary course of business upon terms
no less favorable than such Borrower or such Subsidiary could obtain from
third parties, none of the officers, directors, or employees of such
Borrower or any of its Subsidiaries is presently a party to any
transaction with such Borrower or any of its Subsidiaries (other than for
services as employees, officers and directors), including any contract,
agreement or other arrangement providing for the furnishing of services to
or by, providing for rental of real or personal property to or from, or
otherwise requiring payments to or from any officer, director or such
employee or, to the knowledge of such Borrower, any corporation,
partnership, trust or other entity in which any officer, director, or any
such employee has a substantial interest or is an officer, director,
trustee or partner.
9.15. Employee Benefit Plans. Each Borrower represents and warrants
to the Banks as to its own Employee Benefit Plans, if any:
9.15.1. In General. Each Employee Benefit Plan has been maintained
and operated in compliance in all material respects with the provisions of
ERISA and/or all Applicable Pension Legislation and, to the extent
applicable, the Code, including but not limited to the provisions
thereunder respecting prohibited transactions. Such Borrower has
heretofore delivered to the Agent the most recently completed annual
report, Form 5500, with all required attachments, and actuarial statement
required to be submitted under ss.103(d) of ERISA, with respect to each
Guaranteed Pension Plan.
9.15.2. Terminability of Welfare Plans. Under each Employee Benefit
Plan which is an employee welfare benefit plan within the meaning of
ss.3(1) or ss.3(2)(B) of ERISA, no benefits are due unless the event
giving rise to the benefit entitlement occurs prior to plan termination
(except as required by Title I, Part 6 of ERISA). Such Borrower or an
ERISA Affiliate, as appropriate, may terminate each such Plan at any time
(or at any time subsequent to the expiration of any applicable bargaining
agreement) in the discretion of such Borrower or such ERISA Affiliate
without liability to any Person.
9.15.3. Guaranteed Pension Plans. Each contribution required to be
made to a Guaranteed Pension Plan, whether required to be made to avoid
the incurrence of an accumulated funding deficiency, the notice or lien
provisions of ss.302(f) of ERISA, or otherwise, has been timely made. No
waiver of an accumulated funding deficiency or extension of amortization
periods has been received with respect to any Guaranteed Pension Plan. No
liability to the PBGC (other than required insurance premiums, all of
which have been paid) has been incurred by the Borrower or any ERISA
Affiliate with respect to any Guaranteed
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Pension Plan and there has not been any ERISA Reportable Event, or any
other event or condition which presents a material risk of termination of
any Guaranteed Pension Plan by the PBGC. Based on the latest valuation of
each Guaranteed Pension Plan (which in each case occurred within twelve
months of the date of this representation), and on the actuarial methods
and assumptions employed for that valuation, the aggregate benefit
liabilities of all such Guaranteed Pension Plans within the meaning of
ss.4001 of ERISA did not exceed the aggregate value of the assets of all
such Guaranteed Pension Plans, disregarding for this purpose the benefit
liabilities and assets of any Guaranteed Pension Plan with assets in
excess of benefit liabilities.
9.15.4. Multiemployer Plans. Neither such Borrower nor any ERISA
Affiliate has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under ss.4201 of ERISA or as a
result of a sale of assets described in ss.4204 of ERISA. Neither the
Borrowers nor any ERISA Affiliate has been notified that any Multiemployer
Plan is in reorganization or insolvent under and within the meaning of
ss.4241 or ss.4245 of ERISA or that any Multiemployer Plan intends to
terminate or has been terminated under ss.4041A of ERISA.
9.16. Use of Proceeds.
9.16.1. General. Each Borrower represents and warrants to the Banks
that the proceeds of the Revolving Credit Loans shall be used (a) to
refinance existing Indebtedness of the Borrowers and (b) for working
capital and general corporate purposes (including the financing of all or
any portion of Permitted Acquisitions (including fees and expenses
relating thereto). The Borrowers further represent and warrant to the
Banks that the proceeds of the Nicolet Term Loan shall be used to finance
all or any portion of the Nicolet Acquisition and the proceeds of the
AutoDiagnos Term Loan shall be used to finance all or any portion of the
AutoDiagnos Acquisition. The Revolver Borrowers will obtain Letters of
Credit solely for working capital and general corporate purposes.
9.16.2. Regulations U and X. Each Borrower represents and warrants
to the Banks that no portion of any Loan is to be used, and no portion of
any Letter of Credit is to be obtained, for the purpose of purchasing or
carrying any "margin security" or "margin stock" as such terms are used in
Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Parts 221 and 224.
9.16.3. Ineligible Securities. Each Borrower represents and warrants
to the Banks that no portion of the proceeds of any Loan is to be used,
and no portion of any Letter of Credit is to be obtained, for the purpose
of knowingly purchasing, or providing credit support for the purchase of,
during the underwriting or placement period or within 30 days thereafter,
any Ineligible Securities underwritten or privately placed by a Section 20
Subsidiary.
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9.17. Environmental Compliance. Each Borrower represents and
warrants to the Banks that such Borrower has taken all necessary steps to
investigate the past and present condition and usage of the Real Estate
and the operations conducted thereon and, based upon such diligent
investigation, has determined that:
(a) none of such Borrower, its Subsidiaries or any operator of the
Real Estate or any operations thereon is in violation, or alleged
violation, of any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without
limitation, those arising under the Resource Conservation and Recovery Act
("RCRA"), the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 as amended ("CERCLA"), the Superfund Amendments and
Reauthorization Act of 1986 ("▇▇▇▇"), the Federal Clean Water Act, the
Federal Clean Air Act, the Toxic Substances Control Act, or any state,
local or foreign law, statute, regulation, ordinance, order or decree
relating to health, safety or the environment (hereinafter "Environmental
Laws"), which violation would have a material adverse effect on the
environment or the business, assets or financial condition of such
Borrower or any of its Subsidiaries;
(b) neither such Borrowers nor any of its Subsidiaries has received
notice from any third party including, without limitation, any federal,
state or local governmental authority, (i) that any one of them has been
identified by the United States Environmental Protection Agency ("EPA") as
a potentially responsible party under CERCLA with respect to a site listed
on the National Priorities List, 40 C.F.R. Part ▇▇▇ ▇▇▇▇▇▇▇▇ ▇; (ii) that
any hazardous waste, as defined by 42 U.S.C. ss.6903(5), any hazardous
substances as defined by 42 U.S.C. ss.9601(14), any pollutant or
contaminant as defined by 42 U.S.C. ss.9601(33), any waste, substance or
other material as defined in the Environmental ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ (▇▇▇▇▇▇
▇▇▇▇▇▇▇) and any toxic substances, oil or hazardous materials or other
chemicals or substances regulated by any Environmental Laws ("Hazardous
Substances") which any one of them has generated, transported or disposed
of has been found at any site at which a federal, state or local agency or
other third party has conducted or has ordered that such Borrower or any
of its Subsidiaries conduct a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or
shall be a named party to any claim, action, cause of action, complaint,
or legal or administrative proceeding (in each case, contingent or
otherwise) arising out of any third party's incurrence of costs, expenses,
losses or damages of any kind whatsoever in connection with the release of
Hazardous Substances;
(c) except as set forth on Schedule 9.17 attached hereto: (i) no
portion of its Real Estate has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance with
applicable Environmental Laws; and no underground tank or other
underground storage receptacle for Hazardous Substances is located on any
portion of the Real Estate; (ii) in the course of any activities conducted
by such Borrowers, its Subsidiaries or
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operators of its properties, no Hazardous Substances have been generated
or are being used on its Real Estate except in accordance with applicable
Environmental Laws; (iii) there have been no releases (i.e. any past or
present releasing, spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, disposing or dumping) or
threatened releases of Hazardous Substances on, upon, into or from the
properties of such Borrower or its Subsidiaries, which releases would have
a material adverse effect on the value of any of its Real Estate or
adjacent properties or the environment; (iv) to the best of such
Borrower's knowledge, there have been no releases on, upon, from or into
any real property in the vicinity of any of its Real Estate which, through
soil or groundwater contamination, may have come to be located on, and
which would have a material adverse effect on the value of, its Real
Estate; and (v) in addition, any Hazardous Substances that have been
generated on any of its Real Estate have been transported offsite only by
carriers having an identification number issued by the EPA (or by a
similar agency in other jurisdictions, as applicable), treated or disposed
of only by treatment or disposal facilities maintaining valid permits as
required under applicable Environmental Laws, which transporters and
facilities have been and are, to the best of such Borrower's knowledge,
operating in compliance with such permits and applicable Environmental
Laws; and
(d) none of such Borrower and its Subsidiaries or any of its Real
Estate is subject to any applicable environmental law requiring the
performance of Hazardous Substances site assessments, or the removal or
remediation of Hazardous Substances, or the giving of notice to any
governmental agency or the recording or delivery to other Persons of an
environmental disclosure document or statement by virtue of the
transactions set forth herein and contemplated hereby.
9.18. Subsidiaries, etc.. The Company represents and warrants to the
Banks that its only Subsidiaries are set forth on Schedule 9.18(a)
attached hereto, and those Subsidiaries have no other Subsidiaries. Except
as set forth on Schedule 9.18(b) hereto, neither the Company nor any
Subsidiary of the Company is engaged in any joint venture or partnership
with any other Person.
9.19. Chief Executive Offices. The Company represents and warrants
to the Banks that the Company's chief executive office is at ▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ at which location its books
and records are kept. Each Subsidiary's chief executive office or
registered office, as applicable, is as set forth on Schedule 9.18(a)
attached hereto.
9.20. Fiscal Year. The Company represents and warrants to the Banks
that the Company has a fiscal year which is the approximate twelve (12)
months ending January 1, 2000 for the 1999 fiscal year, December 30, 2000
for the 2000 fiscal year, December 29, 2001 for the 2001 fiscal year,
December 28, 2002 for the 2002 fiscal year, and January 4, 2004 for the
2003 fiscal year. Each other Borrower
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has a fiscal year or financial year, as applicable, which is the twelve
(12) months ending on the same dates.
9.21. No Amendments to Certain Documents. Each Borrower represents
to the Banks that each of the representations and warranties made by it in
any of the Capitalization Documents, the Nicolet Acquisition Documents,
the AutoDiagnos Acquisition Documents and the Loan Documents was true and
correct in all material respects when made and continues to be true and
correct in all material respects on the Closing Date, except to the extent
that any of such representations and warranties relate, by the express
terms thereof, solely to a date falling prior to the Closing Date, and
except to the extent that any of such representations and warranties may
have been affected by the consummation of the transactions contemplated
and permitted or required by the Loan Documents.
9.22. Disclosure. The Company represents and warrants to the Banks
that no representation or warranty made by the Company or any of its
Subsidiaries in this Credit Agreement or in any agreement, instrument,
document, certificate, statement or letter furnished to the Agent or any
Bank by or on behalf of the Company or any of its Subsidiaries in
connection with any of the transactions contemplated by any of the Loan
Documents, contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein not misleading in light of the circumstances in which they are
made.
9.23. No Withholding, Etc. Each Borrower represents and warrants to
the Banks that it is not required by the laws of any jurisdiction to make
any deduction or withholding of any nature whatsoever from any payment to
be made by it hereunder unless disclosed in writing to the Agent and such
deductions or withholdings are not, in the Agent's reasonable discretion,
material. Neither this Credit Agreement nor any of the Loan Documents is
subject to any registration or stamp tax or any other similar or like
takes payable in any jurisdiction.
9.24. No Filing, Recording Required. The Company represents and
warrants to the Banks that no filing, recording or enrolling of this
Credit Agreement or any other Loan Document (other than the registration
of certain of the Security Documents in the United Kingdom and Ireland) is
required to ensure the legality, validity, enforceability or admissibility
in evidence of this Credit Agreement or any other Loan Document.
9.25. Perfection of Security Interest. Each Borrower represents and
warrants to the Banks that all filings, assignments, pledges and deposits
of documents or instruments have been made and all other actions have been
taken that are necessary or advisable, under applicable law, to establish
and perfect the Agent's security interest in the Collateral. Each Borrower
represents and warrants to the Banks that its Collateral and the Agent's
rights with respect to
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such Collateral are not subject to any setoff, claims, withholdings or
other defenses. Each Borrower represents and warrants to the Banks that
each Borrower is the owner of the Collateral free from any lien, security
interest, encumbrance and any other claim or demand, except for Permitted
Liens.
10. AFFIRMATIVE COVENANTS OF THE BORROWERS.
Each of the Borrowers (or the Company, when so specified) covenants and
agrees that, so long as any Loan, Unpaid Reimbursement Obligation, Letter of
Credit, or Note is outstanding or any Bank has any obligation to make any Loans
or the Agent has any obligation to issue, extend or renew any Letters of Credit:
10.1. Punctual Payment. Such Borrower will duly and punctually pay
or cause to be paid the principal and interest on the Loans, all
Reimbursement Obligations, the Letter of Credit Fees, the Commitment Fees,
the Agent's fee and all other amounts provided for in this Credit
Agreement and the other Loan Documents to which the Company or any of its
Subsidiaries is a party, all in accordance with the terms of this Credit
Agreement and such other Loan Documents.
10.2. Maintenance of Office. The Company covenants that it will
maintain its chief executive office at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, or at such other place in the United States of America as
the Company shall designate upon written notice to the Agent, where
notices, presentations and demands to or upon the Borrowers in respect of
the Loan Documents to which the Borrowers are a party may be given or
made.
10.3. Records and Accounts. The Company covenants that it will (a)
keep, and cause each of its Subsidiaries to keep, true and accurate
records and books of account in which full, true and correct entries will
be made in accordance with generally accepted accounting principles, (b)
maintain adequate accounts and reserves for all taxes (including income
taxes), depreciation, depletion, obsolescence and amortization of its
properties and the properties of its Subsidiaries, contingencies, and
other reserves, and (c) at all times engage PricewaterhouseCoopers LLP or
other independent certified public accountants satisfactory to the Agent
as the independent certified public accountants of the Company and its
Subsidiaries and will not permit more than thirty (30) days to elapse
between the cessation of such firm's (or any successor firm's) engagement
as the independent certified public accountants of the Company and its
Subsidiaries and the appointment in such capacity of a successor firm as
shall be reasonably satisfactory to the Agent.
10.4. Financial Statements, Certificates and Information. The
Company will deliver to the Agent, with sufficient copies for each of the
Banks, and upon receipt the Agent will promptly deliver to each of the
Banks:
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(a) as soon as practicable, but in any event not later than ninety
(90) days after the end of each fiscal year of the Company, the
consolidated balance sheet of the Company and its Subsidiaries and the
consolidating balance sheet of the Company and its Subsidiaries, each as
at the end of such year, and the related consolidated statement of income
and consolidated statement of cash flow and consolidating statement of
income and consolidating statement of cash flow for such year, each
setting forth in comparative form the figures for the previous fiscal year
and all such consolidated and consolidating statements to be in reasonable
detail, prepared in accordance with generally accepted accounting
principles, and, as to the consolidated statements, certified (without
qualification or otherwise reasonably acceptable to the Agent; provided
that such certificate may set forth qualifications to the extent such
qualifications pertain solely to changes in generally accepted accounting
principles from those applied during earlier accounting periods, the
implementation of which changes is reflected in the financial statements
accompanying such certification) by PricewaterhouseCoopers LLP or by other
independent certified public accountants satisfactory to the Agent,
together with a written statement from such accountants to the effect that
they have read a copy of this Credit Agreement, and that, in making the
examination necessary to said certification, they have obtained no
knowledge of any Default or Event of Default as it relates to any
financial covenants, or, if such accountants shall have obtained knowledge
of any then existing Default or Event of Default, they shall disclose in
such statement any such Default or Event of Default; provided that such
accountants shall not be liable to the Banks for failure to obtain
knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than
forty-five (45) days after the end of each of the fiscal quarters of the
Company, copies of the unaudited consolidated balance sheet of the Company
and its Subsidiaries and the unaudited consolidating balance sheet of the
Company and its Subsidiaries, each as at the end of such quarter, and the
related consolidated statement of income and consolidated statement of
cash flow and consolidating statement of income and consolidating
statement of cash flow for the portion of the Company's fiscal year then
elapsed, all in reasonable detail and prepared in accordance with
generally accepted accounting principles, together with a certification by
the principal financial or accounting officer of the Company that the
information contained in such financial statements fairly presents the
financial position of the Company and its Subsidiaries on the date thereof
(subject to year-end adjustments);
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, a statement certified by the
principal financial or accounting officer of the Company in substantially
the form of Exhibit D hereto (the "Compliance Certificate") and setting
forth in reasonable detail computations evidencing compliance with the
covenants contained in ss.12 and (if
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applicable) reconciliations to reflect changes in generally accepted
accounting principles since the Balance Sheet Date;
(d) contemporaneously with the filing or mailing thereof, copies of
all material of a financial nature filed with the Securities and Exchange
Commission or sent to the stockholders of any of the Borrowers;
(e) within fifteen (15) days after the end of each fiscal quarter or
at such earlier time as the Agent may reasonably request, a Borrowing Base
Report setting forth the Borrowing Base as at the end of such fiscal
quarter or other date so requested by the Agent;
(f) within fifteen (15) days after the end of each fiscal quarter,
an Accounts Receivable aging report;
(g) by not later than thirty (30) days prior to the end of any
fiscal year, the annual projections of the Borrowers for the next fiscal
year, and upon the request of the Agent or any Bank, any quarterly
projections of the Company and its Subsidiaries prepared by the Company
for the next fiscal quarter; and
(h) from time to time such other financial data and information
(including accountants, management letters) as the Agent or any Bank may
reasonably request.
10.5. Notices.
10.5.1. Defaults. The Company covenants that it will, and will cause
each of its Subsidiaries to, promptly notify the Agent and each of the
Banks in writing of the occurrence of any Default or Event of Default. If
any Person shall give any notice or take any other action in respect of a
claimed default (whether or not constituting an Event of Default) under
this Credit Agreement or any other note, evidence of indebtedness,
indenture or other obligation to which or with respect to which any of the
Borrowers or any of their Subsidiaries is a party or obligor, whether as
principal, guarantor, surety or otherwise, such Borrower shall forthwith
give written notice thereof to the Agent and each of the Banks, describing
the notice or action and the nature of the claimed default.
10.5.2. Environmental Events. The Company covenants that it will,
and will cause each of its Subsidiaries to, promptly give notice to the
Agent and each of the Banks (a) of any violation of any Environmental Law
that the Company or any of its Subsidiaries reports in writing or is
reportable by such Person in writing (or for which any written report
supplemental to any oral report is made) to any federal, state, local or
foreign environmental agency and (b) upon becoming aware thereof, of any
inquiry, proceeding, investigation, or other action, including a notice
from any agency of potential environmental liability, of any federal,
state, local or foreign environmental agency or board, that has the
potential to materially affect the assets, liabilities, financial
conditions or
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operations of the Company and its Subsidiaries taken as a whole or the
Agent's security interests pursuant to the Security Documents.
10.5.3. Notification of Claim against Collateral. The Company will,
and will cause each of its Subsidiaries to, immediately upon becoming
aware thereof, notify the Agent and in writing of any setoff, claims
(including, with respect to the Real Estate, environmental claims),
withholdings or other defenses to which any of the Collateral, or the
Agent's rights with respect to the Collateral, are subject.
10.5.4. Notice of Litigation and Judgments. The Company will, and
will cause each of its Subsidiaries to, give notice to the Agent and in
writing within fifteen (15) days of becoming aware of any litigation or
proceedings threatened in writing or any pending litigation and
proceedings affecting the Company or any of its Subsidiaries or to which
the Company or any of its Subsidiaries is or becomes a party involving an
uninsured claim against the Company or any of its Subsidiaries that could
reasonably be expected to have a materially adverse effect on the Company
or any of its Subsidiaries and stating the nature and status of such
litigation or proceedings. The Company will, and will cause each of its
Subsidiaries to, give notice to the Agent and each of the Banks, in
writing, in form and detail satisfactory to the Agent, within ten (10)
days of any judgment not covered by insurance, final or otherwise, against
the Company or any of its Subsidiaries in an amount in excess of $250,000.
10.6. Corporate Existence; Maintenance of Properties. Such Borrower
will do or cause to be done all things necessary to preserve and keep in
full force and effect its corporate (or similar) existence, rights and
franchises and those of its Subsidiaries and will not, and will not cause
or permit any of its Subsidiaries to, convert to a limited liability
company. Such Borrower (a) will cause all of its properties and those of
its Subsidiaries used or useful in the conduct of its business or the
business of its Subsidiaries to be maintained and kept in good condition,
repair and working order (ordinary wear and tear excepted and damage by
fire and other casualty which is fully covered by insurance excepted) and
supplied with all necessary equipment, (b) will cause to be made all
necessary repairs, renewals, betterments and improvements thereof, all as
in the judgment of such Borrower may be necessary so that the business
carried on in connection therewith may be properly and advantageously
conducted at all times, and (c) will, and will cause each of its
Subsidiaries to, continue to engage primarily in the businesses now
conducted by them and in related businesses; provided that nothing in this
ss.10.6 shall prevent any Borrower from discontinuing the operation and
maintenance of any of its properties or any of those of its Subsidiaries
(unless such Subsidiary is a Borrower hereunder) if such discontinuance
is, in the judgment of such Borrower, desirable in the conduct of its or
their business.
10.7. Insurance. Such Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable insurers
insurance
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with respect to its properties and business against such casualties and
contingencies as shall be in accordance with the general practices of
businesses engaged in similar activities in similar geographic areas and
in amounts, containing such terms, in such forms and for such periods as
may be reasonable and prudent and in accordance with the terms of the
Security Agreements.
10.8. Taxes. Such Borrower will, and will cause each of its
Subsidiaries to, duly pay and discharge, or cause to be paid and
discharged, before the same shall become overdue, all taxes, assessments
and other governmental charges imposed upon it and its real properties,
sales and activities, or any part thereof, or upon the income or profits
therefrom, as well as all claims for labor, materials, or supplies that if
unpaid might by law become a lien or charge upon any of its property;
provided that any such tax, assessment, charge, levy or claim need not be
paid if the validity or amount thereof shall currently be contested in
good faith by appropriate proceedings and if such Borrower or such
Subsidiary shall have set aside on its books adequate reserves with
respect thereto; and provided further that such Borrower and each
Subsidiary of such Borrower will pay all such taxes, assessments, charges,
levies or claims forthwith upon the commencement of proceedings to
foreclose any lien that may have attached as security therefor.
10.9. Inspection of Properties and Books, etc.
10.9.1. General. The Banks, through the Agent or any of the Banks'
other designated representatives, may, following notice to such Borrower,
visit and inspect any of the properties of such Borrower or any of its
Subsidiaries, to examine the books of account of such Borrower and its
Subsidiaries (and to make copies thereof and extracts therefrom), and to
discuss the affairs, finances and accounts of such Borrower and its
Subsidiaries with, and to be advised as to the same by, its and their
officers, all at such reasonable times and intervals as the Agent or any
Bank may reasonably request; provided, however, that such notice shall not
be required if an Event of Default shall have occurred and be continuing.
10.9.2. Collateral Reports. No more frequently than four times
during each calendar year, or more frequently as determined by the Agent
if an Event of Default shall have occurred and be continuing, upon the
request of the Agent, the Company will obtain and deliver to the Agent,
or, if the Agent so elects, will cooperate with the Agent in the Agent's
obtaining, a report of an independent collateral auditor satisfactory to
the Agent (which may be affiliated with one of the Banks) with respect to
the Accounts Receivable and inventory components included in the Borrowing
Base, which report shall indicate whether or not the information set forth
in the Borrowing Base Report most recently delivered is accurate and
complete in all material respects based upon a review by such auditors of
the Accounts Receivable (including verification with respect to the
amount, aging, identity and credit of the respective account debtors and
the billing practices of the Company or its applicable Subsidiary) and
inventory
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(including verification as to the value, location and respective types).
All such collateral value reports shall be conducted and made at the
expense of the Company.
10.9.3. Appraisals. No more frequently than once each calendar year,
or more frequently as determined by the Agent if an Event of Default shall
have occurred and be continuing, upon the request of the Agent, the
Company will obtain and deliver to the Agent appraisal reports in form and
substance and from appraisers satisfactory to the Agent, stating (a) the
then current fair market, orderly liquidation and forced liquidation
values of all or any portion of the equipment or real estate owned by the
Company or any of its Subsidiaries and (b) the then current business value
of each of the Company and its Subsidiaries. All such appraisals shall be
conducted and made at the expense of the Company.
10.9.4. Communications with Accountants. The Agent and, if
accompanied by the Agent, the Banks may, with the prior written consent of
the Company (which consent shall not be unreasonably withheld),
communicate directly with the Company's independent certified public
accountants and such accountants may disclose to the Agent and the Banks
any and all financial statements and other supporting financial documents
and schedules including copies of any management letter with respect to
the business, financial condition and other affairs of the Company or any
of its Subsidiaries; provided, however, that the prior written consent of
the Company shall not be required if an Event of Default shall have
occurred and be continuing. At the request of the Agent, the Company shall
deliver a letter addressed to such accountants instructing them to comply
with the provisions of this ss.10.9.4.
10.10. Compliance with Laws, Contracts, Licenses, and Permits. Such
Borrower will, and will cause each of its Subsidiaries to, comply with (a)
the applicable laws and regulations wherever its business is conducted,
including all Environmental Laws, (b) the provisions of its charter (or
similar formation) documents and by-laws, (c) all agreements and
instruments by which it or any of its properties may be bound and (d) all
applicable decrees, orders, and judgments. If any authorization, consent,
approval, permit or license from any officer, agency or instrumentality of
any government shall become necessary or required in order that any
Borrower or any of its Subsidiaries may fulfill any of its obligations
hereunder or any of the other Loan Documents to which such Borrower or
such Subsidiary is a party, such Borrower will, or (as the case may be)
will cause such Subsidiary to, immediately take or cause to be taken all
reasonable steps within the power of such Borrower or such Subsidiary to
obtain such authorization, consent, approval, permit or license and
furnish the Agent and the Banks with evidence thereof.
10.11. Employee Benefit Plans. Such Borrower will (a) promptly upon
filing the same with the Department of Labor or Internal Revenue Service,
furnish to the Agent a copy of the most recent actuarial statement
required to be submitted under ss.103(d) of ERISA and Annual Report, Form
5500, with all
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required attachments, in respect of each Guaranteed Pension Plan, (b)
promptly upon receipt or dispatch, furnish to the Agent any notice, report
or demand sent or received in respect of a Guaranteed Pension Plan under
ss.ss.302, 4041, 4042, 4043, 4063, 4065, 4066 and 4068 of ERISA, or in
respect of a Multiemployer Plan, under ss.ss.4041A, 4202, 4219, 4242, or
4245 of ERISA and (c) furnish to the Agent (at such time as such reports
are prepared in order to comply with Applicable Pension Legislation)
copies of all actuaries' reports in relation to the Employee Benefit Plans
operated by them from time to time.
10.12. Use of Proceeds. The Revolver Borrowers will use the proceeds
of the Revolving Credit Loans solely to refinance existing Indebtedness of
the Revolver Borrowers and for working capital and general corporate
purposes, including funding acquisitions permitted to be made pursuant to
ss.11.5.1. The Term Borrowers will use the proceeds of the Term Loan
solely to finance all or any part of the Nicolet Acquisition and to
finance all or any portion of the AutoDiagnos Acquisition. The Revolver
Borrowers will obtain Letters of Credit solely for working capital and
general corporate purposes.
10.13. Further Assurances. Such Borrower will, and will cause each
of its Subsidiaries to, cooperate with the Banks and the Agent and execute
such further instruments and documents as the Banks or the Agent shall
reasonably request to carry out to their satisfaction the transactions
contemplated by this Credit Agreement and the other Loan Documents.
10.14. Fair Labor Standards Act. Such Borrower will, and each of its
Subsidiaries shall at all times operate its business in compliance with
all material applicable provisions of the Fair Labor Standards Act of
1938, as amended, or other similar legislation in the jurisdiction in
which such Borrower or any of its Subsidiaries operates ("Other Labor
Regulations") as the case may be. None of the inventory of such Borrower
or any of its Subsidiaries are or will be produced by employees of such
Borrower or any of its Subsidiaries who are employed in violation of the
applicable minimum wage or maximum hour provisions of the Fair Labor
Standards Act (29 U.S.C. ss.ss.206 and 207) or any regulations promulgated
thereunder or Other Labor Regulations, in each case, as in effect from
time to time.
10.15. Additional Subsidiaries. If, after the Closing Date, such
Borrower or any of its Subsidiaries creates or acquires, either directly
or indirectly, any Subsidiary, it will immediately notify the Agent and
the Banks of such creation or acquisition, as the case may be, and provide
the Agent and the Banks with an updated Schedule 9.18(a) and take all
other action required by ss.10.16 hereof.
10.16. New Guarantors. The Company will cause (a) each Domestic
Subsidiary created, acquired or otherwise existing, on or after the
Closing Date to immediately become a Guarantor and shall cause such
Subsidiary to execute and deliver to the Agent, for the benefit of the
Agent and the Banks, (i) a Guaranty, and (ii) further Security Documents
or other instruments and documents as the
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Agent may require in order to grant to the Agent a first priority
perfected security interest in such Domestic Subsidiary's assets, together
with legal opinions in form and substance satisfactory to the Agent to be
delivered to the Agent and the Banks opining as to authorization validity
and enforceability of such Guaranty and Security Documents and (as to the
applicable Security Documents) the perfection of such security interests;
and (b) to the extent requested by the Agent and to the extent legally
permissible, will cause each Foreign Subsidiary (other than AutoDiagnos)
created, acquired or otherwise existing, on or after the Closing Date to
immediately become a Guarantor and shall cause such Foreign Subsidiary to
execute and deliver to the Agent, for the benefit of the Agent and the
Banks, (i) a Guarantee and (ii) Security Documents or other instruments
and documents as the Agent may require in order to grant to the Agent a
first priority perfected security interest in such Foreign Subsidiary's
assets, together with legal opinions in form and substance satisfactory to
the Agent to be delivered to the Agent and the Banks opining as to
authorization, validity and enforceability of such Guaranty and Security
Documents and (as to the applicable Security Documents) the perfection of
such security interests.
10.17. Interest Rate Protection. The Company will, not later than
ninety (90) days from the Closing Date, purchase an interest cap or swap
or effect other interest rate protection arrangements for a minimum period
and in an amount satisfactory to the Agent.
10.18. Mitron UK. Holdings will, not later than ninety (90) days
from the Closing Date, either (a) cause Mitron Europe Ltd. to be
liquidated, dissolved or otherwise cease to legally exist, and provide the
Agent with evidence of such event or (b) cause Mitron Europe Ltd. to
become a Guarantor hereunder on such date and execute and deliver to the
Agent all required Security Documents and legal opinions otherwise
required by ss.10.16 hereof.
10.19. AutoDiagnos. The Company will cause GenRad Sweden, in the
event GenRad Sweden acquires less than one hundred percent (100%) of the
outstanding capital stock of AutoDiagnos on the AutoDiagnos Acquisition
Closing Date, to exercise its rights under Swedish law to compel the
shareholders holding the remaining capital stock of AutoDiagnos to sell
such capital stock to GenRad Sweden, and not later than sixty (60) days
after the date on which GenRad Sweden owns one hundred percent (100%) of
the capital stock of AutoDiagnos, the Company will cause GenRad Sweden to
merge with and into AutoDiagnos with AutoDiagnos as the surviving entity
and with AutoDiagnos simultaneously executing and delivering to the Agent
an assumption agreement in form and substance satisfactory to the Agent
pursuant to which AutoDiagnos assumes all of GenRad Sweden's obligations
under the Loan Documents.
10.20. GenRad Ireland. The Company will, no later than sixty (60)
days from the Closing Date, cause Tavstock Limited to officially and
properly change its name to GenRad Ireland.
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11. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
Each of the Borrowers (or the Company, when so specified) covenants and
agrees that, so long as any Loan, Unpaid Reimbursement Obligation, Letter of
Credit, Collateral Instrument or Note is outstanding or any Bank has any
obligation to make any Loans or the Agent has any obligations to issue, extend
or renew any Letters of Credit:
11.1. Restrictions on Indebtedness. Such Borrower will not, and will
not permit any of its Subsidiaries to, create, incur, assume, guarantee or
be or remain liable, contingently or otherwise, with respect to any
Indebtedness other than:
(a) Indebtedness to the Banks and the Agent arising under any of the
Loan Documents or any Interest Rate Agreement;
(b) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary
course of business;
(c) obligations under Capitalized Leases not exceeding $2,000,000 in
aggregate amount at any time outstanding;
(d) Indebtedness incurred after the date hereof in connection with
the acquisition of any real or personal property by such Borrower or such
Subsidiary, provided that the aggregate principal amount of such
Indebtedness of the Borrowers and their Subsidiaries shall not exceed the
aggregate amount of $3,000,000 at any one time;
(e) Indebtedness existing on the date hereof and listed and
described on Schedule 11.1 hereto;
(f) Indebtedness of the Company to any Subsidiary, and Indebtedness
of any Borrowing Subsidiary or Foreign Subsidiary which is a Guarantor
hereunder to another Borrowing Subsidiary or Foreign Subsidiary which is a
Guarantor hereunder so long as the guarantee arrangements are not in any
manner limited;
(g) Indebtedness of the Company or any Domestic Subsidiary which is
a Guarantor to any other Domestic Subsidiary which is a Guarantor or the
Company so long as each such Domestic Subsidiary remains a Guarantor
hereunder;
(h) Indebtedness of a Foreign Subsidiary to the Company or a
Domestic Subsidiary which is a Guarantor, provided (i) such Indebtedness
is evidenced by an intercompany note which is payable on a demand basis;
(ii) such note is endorsed and pledged to the Agent; and (iii) the
aggregate principal amount of all Indebtedness outstanding under this
ss.11.1(h) does not exceed $2,000,000 at any one time;
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(i) unsecured Indebtedness of the Company or any of its Subsidiaries
not otherwise provided for in this ss.11.1 in an aggregate amount not to
exceed $3,000,000; and
(j) Indebtedness of GenRad Ireland to the Company arising out of the
transfer of certain intellectual property from the Company to GenRad
Ireland as set forth in ss.11.5.2, provided, (i) such Indebtedness is
evidenced by an intercompany note which is payable on a demand basis; (ii)
such note is endorsed and pledged to the Agent; and (iii) the aggregate
principal amount of all Indebtedness outstanding under this ss.11.1(k)
does not at any time exceed $12,000,000 less the amount of the Investment
made in GenRad Ireland by the Company pursuant to ss.11.3(j).
11.2. Restrictions on Liens. Such Borrower will not, and will not
permit any of its Subsidiaries to, (a) create or incur or suffer to be
created or incurred or to exist any lien, encumbrance, mortgage, pledge,
charge, restriction or other security interest of any kind upon any of its
property or assets of any character whether now owned or hereafter
acquired, or upon the income or profits therefrom; (b) transfer any of
such property or assets or the income or profits therefrom for the purpose
of subjecting the same to the payment of Indebtedness or performance of
any other obligation in priority to payment of its general creditors; (c)
acquire, or agree or have an option to acquire, any property or assets
upon conditional sale or other title retention or purchase money security
agreement, device or arrangement; (d) suffer to exist for a period of more
than thirty (30) days after the same shall have been incurred any
Indebtedness or claim or demand against it that if unpaid might by law or
upon bankruptcy or insolvency, or otherwise, be given any priority
whatsoever over its general creditors; or (e) sell, assign, pledge or
otherwise transfer any accounts, contract rights, general intangibles,
chattel paper or instruments, with or without recourse; provided that such
Borrower and its Subsidiary may create or incur or suffer to be created or
incurred or to exist:
(i) liens in favor of such Borrower on all or part of the assets of
Subsidiaries of such Borrower securing Indebtedness owing by Subsidiaries
of such Borrower to such Borrower;
(ii) liens to secure taxes, assessments and other government charges
in respect of obligations not overdue or liens on properties to secure
claims for labor, material or supplies in respect of obligations not
overdue;
(iii) deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(iv) liens on properties in respect of judgments or awards that have
been in force for less than the applicable period for taking an appeal so
long as execution is not levied thereunder or in respect of which the
applicable Borrower
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or such Subsidiary shall at the time and in good faith be prosecuting an
appeal or proceeding for review and in respect of which a stay of
execution shall have been obtained pending such appeal or review;
(v) liens of carriers, warehousemen, mechanics and materialmen, and
other like liens on properties in existence less than 120 days from the
date of creation thereof in respect of obligations not overdue;
(vi) encumbrances on Real Estate consisting of easements, rights of
way, zoning restrictions, restrictions on the use of real property and
defects and irregularities in the title thereto, landlord's or lessor's
liens under leases to which such Borrower or a Subsidiary of such Borrower
is a party, and other minor liens or encumbrances none of which in the
opinion of such Borrower interferes materially with the use of the
property affected in the ordinary conduct of the business of such Borrower
and its Subsidiaries, which defects do not individually or in the
aggregate have a materially adverse effect on the business of such
Borrower individually or of the Borrowers and their Subsidiaries on a
consolidated basis;
(vii) liens existing on the date hereof and listed on Schedule 11.2
hereto and liens granted to BankBoston, N.A. London Branch to secure the
Indebtedness permitted by ss.11.1(i)(i);
(viii) purchase money security interests in or purchase money
mortgages on real or personal property acquired after the date hereof to
secure purchase money Indebtedness of the type and amount permitted by
ss.11.1(d), incurred in connection with the acquisition of such property,
which security interests or mortgages cover only the real or personal
property so acquired;
(ix) liens on office equipment of the Company or any of its
Subsidiaries existing on the Closing Date but not set forth on Schedule
11.2 provided such liens do not secure Indebtedness in excess of $25,000
in the aggregate;
(x) liens in respect of Capitalized Leases permitted pursuant to
ss.11.1(c), provided, such liens cover only the personal property so
acquired in such Capitalized Lease; and
(xi) liens in favor of the Agent for the benefit of the Banks and
the Agent under the Loan Documents.
11.3. Restrictions on Investments. Such Borrower will not, and will
not permit any of its Subsidiaries to, make or permit to exist or to
remain outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America or any OECD country that mature within one (1) year from the
date of purchase by such Borrower;
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(b) demand deposits, certificates of deposit, bankers acceptances
and time deposits of United States banks having total assets in excess of
$1,000,000,000 or banks organized under the laws any OECD country and
having total assets in excess of $10,000,000,000;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any state thereof or any OECD country that at the time of
purchase have been rated and the ratings for which are not less than "P 1"
if rated by ▇▇▇▇▇'▇ Investors Services, Inc., and not less than "A 1" if
rated by Standard and Poor's;
(d) Investments existing on the date hereof and listed on Schedule
11.3 hereto;
(e) Investments with respect to Indebtedness permitted by
ss.11.1(f), (g), (h) and (k) so long as (i) in the case of ss.11.1(f), (g)
and (k), such entities remain Borrowers and/or Guarantors hereunder and
remain Subsidiaries of the Company and (ii) such entities remain
Subsidiaries of the Company;
(f) Investments consisting of the guaranty arrangements provided for
in ss.8 hereof or Investments the Company in any Domestic Subsidiary so
long as such Domestic Subsidiary is a Guarantor hereunder;
(g) Investments consisting of promissory notes received as proceeds
of asset dispositions permitted by ss.11.5.2;
(h) Investments made by the Agent on behalf of such Borrower,
including, without limitation, Investments made in money market loan
participant notes;
(i) money market mutual funds provided (i) each such fund in which
such Borrower or its Subsidiaries makes an Investment has assets of not
less than $50,000,000; (ii) the proportional Investment in each such fund
by such Borrower or such Subsidiary does not exceed five percent (5%) of
the aggregate amount of all Investments in such fund, and (iii) the
aggregate Investments in such funds by the Borrowers and their
Subsidiaries does not exceed $10,000,000;
(j) Investment by the Company in GenRad Ireland consisting of a
capital contribution to GenRad Ireland consisting of not more than
$6,000,000 in the aggregate of the intellectual property of GenRad, Inc.
purchased in the Nicolet Acquisition; and
provided, however, that, such Investments will be considered
Investments permitted by this ss.11.3 only if all actions have been taken
to the satisfaction of the Agent to provide to the Agent, for the benefit
of the Banks and
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the Agent, a first priority perfected security interest in all of such
Investments free of all encumbrances other than those permitted by
ss.11.2.
11.4. Restricted Payments. Neither the Company nor any Subsidiary
will make any Restricted Payments; provided, however, so long as no
Default or Event of Default has occurred and is continuing or would exist
as a result thereof, (a) any Subsidiary of the Company shall be permitted
to make Distributions to its parent or to the Company; (b) the Company
shall be permitted to make regularly scheduled licensing payments to
GenRad Ireland for the right to use certain intellectual property owned by
GenRad Ireland; and (c) the Company shall be permitted to make
Distributions in respect of stock repurchases in an aggregate amount not
to exceed $15,000,000 in any fiscal year.
11.5. Merger, Consolidation and Disposition of Assets.
11.5.1. Mergers and Acquisitions. The Company will not, and will not
permit any of its Subsidiaries to become a party to any merger or
consolidation, or agree to or effect any asset acquisition or stock
acquisition (other than the acquisition of assets in the ordinary course
of business consistent with past practices) except so long as no Default
or Event of Default has occurred and is continuing, (a) the merger or
consolidation of one or more of the Subsidiaries of the Company with and
into the Company; (b) the merger or consolidation of two or more
Subsidiaries of the Company (provided, any Guarantor or Borrower involved
in such merger shall be the survivor); (c) the Nicolet Acquisition; (d)
the AutoDiagnos Acquisition (but only to the extent all other conditions
to such acquisition contained herein have been satisfied); (e) the license
of or acquisition by GenRad Ireland (i) within ninety (90) days of the
Closing Date of certain of the intellectual property of the Company
purchased by the Company in the Nicolet Acquisition for fair and
reasonable value so long as (1) at the time of such license or acquisition
by GenRad Ireland no Default or Event of Default has occurred and is
continuing or would exist as a result thereof; (2) the fair market value
of all such intellectual property transferred does not exceed, in the
aggregate, $12,000,000; (3) not more than fifty percent of the
consideration for such transfer shall be in the form of a capital
contribution to GenRad Ireland (with the remaining portion being in the
form of an intercompany loan as contemplated by ss.11.1(j)), and (4)
GenRad Ireland takes all necessary actions so that immediately upon the
consummation of such transfer, GenRad Ireland has granted to the Agent,
for the benefit of the Agent and the Banks, a first priority perfected
security interest in all such intellectual property to secure the
Obligations of GenRad Ireland; and (ii) within ninety (90) days of the
Closing Date of the AutoDiagnos Acquisition of certain of the intellectual
property of GenRad Sweden purchased by GenRad Sweden in the AutoDiagnos
Acquisition for fair and reasonable value so long as (1) at the time of
such license or acquisition by GenRad Ireland no Default or Event of
Default has occurred and is continuing or would exist as a result thereof;
(2) the fair market value of all such intellectual property transferred
does not exceed, in the aggregate, $15,000,000; (3) the consideration for
such transfer shall be in the form of an intercompany loan as
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permitted by ss.11.1(f), and (4) GenRad Ireland takes all necessary
actions so that immediately upon the consummation of such transfer, GenRad
Ireland has granted to the Agent, for the benefit of the Agent and the
Banks, a first priority perfected security interest in all such
intellectual property to secure the Obligations of GenRad Ireland and (f)
so long as the Company's Leverage Ratio on a pro forma basis immediately
prior to and after giving effect to any acquisition is at a level which is
at least 0.25 times less than the required financial covenant level in
effect at the date of determination, other asset or stock acquisitions of
Persons in the same or similar lines of business as the Company (each, a
"Permitted Acquisition") provided:
(1) the Company has provided the Agent with three (3) Business Days
prior written notice of such Permitted Acquisition, which notice shall
include a reasonably detailed description of such Permitted Acquisition
and copies of all acquisition documents in connection therewith;
(2) the Company has demonstrated to the satisfaction of the Agent,
no less than three (3) Business Days prior to the consummation of such
acquisition, based on a pro forma Compliance Certificate, compliance on a
pro forma basis with ss.12 hereof both immediately prior to and after
giving effect to such Permitted Acquisition;
(3) the Company shall have demonstrated to the satisfaction of the
Agent that the Person or business to be acquired has a positive EBITDA on
a trailing twelve (12) month basis for the twelve (12) consecutive months
most recently ended prior to the consummation of such acquisition (with
any adjustments to EBITDA to be approved by the Agent);
(4) no contingent obligations or liabilities will be incurred or
assumed in connection with such Permitted Acquisition which could
reasonably be expected to have a material adverse effect on the business,
assets or financial condition of the Company and its Subsidiaries, and the
business and assets so acquired shall be acquired by the Company or its
Subsidiary, as the case may be, free and clear of all liens and all
Indebtedness (other than Indebtedness permitted to be incurred pursuant to
ss.11.1 hereof);
(5) the business to be acquired would not subject the Agent or any
Bank to any additional regulatory or third party approvals in connection
with the excess of its rights and remedies under this Credit Agreement or
any other Loan Document;
(6) the board of directors and (if required by applicable law) the
shareholders, or the equivalent thereof, of the business to be acquired
has approved such acquisition and such Permitted Acquisition as otherwise
considered "friendly";
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(7) if such acquisition is made by a merger, the Company shall be
the surviving entity; and
(8) the aggregate purchase price to be paid with any consideration
other than the capital stock of the Company by the Company or any
Subsidiary in connection with any such acquisition or series of related
acquisitions, shall not exceed (a) $10,000,000 in the aggregate for any
acquisition or series of related acquisitions and (b) $20,000,000 in the
aggregate for all acquisitions consummated in any period of twelve (12)
consecutive months;
(9) the Company or such Subsidiary has taken or caused to be taken
all action necessary pursuant to ss.7 and ss.10.16 hereof to grant the
Agent a first priority perfected lien on all assets and stock to be
acquired in connection with such Permitted Acquisition, and to the extent
such acquisition is a stock acquisition, the Company or such Subsidiary,
as the case may be, will own 80% of the capital stock and voting stock of
the Person so acquired;
(10) the Company and its Subsidiaries shall have complied with the
provisions of ss.10.16;
(11) the Company shall have provided the Agent with such other
information as was reasonably requested by the Agent; and
(12) the Company has delivered to the Agent a certificate of the
chief financial officer of the Company to the effect that (A) the Company
and its Subsidiaries, on a consolidated and consolidating basis, will be
solvent upon the consummation of the Permitted Acquisition; (B) the pro
forma Compliance Certificate fairly presents the financial condition of
the Company and its Subsidiaries as of the date thereof and after giving
effect to the Permitted Acquisition; and (C) no Default or Event of
Default exists or would result after giving effect to the Permitted
Acquisition.
11.5.2. Disposition of Assets. The Company will not, and will not
permit any of its Subsidiaries to, become a party to or agree to or effect
any disposition of assets, other than (a) the disposition of assets in the
ordinary course of business, consistent with past practices and the
transfer by each of the Company and GenRad Sweden of the intellectual
property acquired by the applicable Person in the Nicolet Acquisition and
the AutoDiagnos Acquisition, as the case may be, to GenRad Ireland as set
forth in ss.11.5.1(e) above; and (b) other Asset Sales, Net Cash Sale
Proceeds of which are applied pursuant to the terms of ss.4.4; provided,
(i) no Default or Event of Default has occurred and is continuing at the
time of such sale; (ii) the fair market value of all assets sold in any
fiscal year does not exceed, in the aggregate, $2,000,000; and (iii) the
Person selling such asset receives 100% of the purchase price in cash; and
(iv) the purchase price received by such Person is not less than the fair
market value of the property being sold.
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11.6. Sale and Leaseback. Except as permitted by ss.11.5.2 hereof,
the Company will not, and will not permit any of its Subsidiaries to,
enter into any arrangement, directly or indirectly, whereby the Company or
any of its Subsidiaries shall sell or transfer any property owned by it in
order then or thereafter to lease such property or lease other property
that the Company or any Subsidiary of the Company intends to use for
substantially the same purpose as the property being sold or transferred.
11.7. Compliance with Environmental Laws. Such Borrower will not,
and will not permit any of its Subsidiaries to, (a) use any of its Real
Estate or any portion thereof for the handling, processing, storage or
disposal of Hazardous Substances, (b) cause or permit to be located on any
of its Real Estate any underground tank or other underground storage
receptacle for Hazardous Substances, (c) generate any Hazardous Substances
on any of its Real Estate, (d) conduct any activity at its Real Estate or
use its Real Estate in any manner so as to cause a release (i.e.
releasing, spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, disposing or dumping) or
threatened release of Hazardous Substances on, upon or into its Real
Estate or (e) otherwise conduct any activity at its Real Estate or use its
Real Estate in any manner that would violate any Environmental Law or
bring such Real Estate in violation of any Environmental Law.
11.8. Employee Benefit Plans. Neither such Borrower nor any ERISA
Affiliate will
(a) engage in any "prohibited transaction" within the meaning of
ss.406 of ERISA or ss.4975 of the Code which could result in a material
liability for the Borrower or any of its Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in ss.302 of ERISA, whether
or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner which, could
result in the imposition of a lien or encumbrance on the assets of such
Borrower or any of its Subsidiaries pursuant to ss.302(f) or ss.4068 of
ERISA; or
(d) amend any Guaranteed Pension Plan in circumstances requiring the
posting of security pursuant to ss.307 of ERISA or ss.401(a)(29) of the
Code; or
(e) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of ss.4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities; or
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(f) take any action referred to in paragraphs (a) through (e) above
that would violate any Applicable Pension Legislation.
11.9. Fiscal Year. Neither the Company nor any of its Subsidiaries
will change the date of the end of its respective fiscal years or
financial years from that set forth in ss.9.20 hereof.
11.10. Negative Pledges. Neither the Company nor any of its
Subsidiaries will enter into any agreement (excluding this Credit
Agreement and the Loan Documents) prohibiting the creation or assumption
of any lien upon its properties, revenues or assets or those of any of its
Subsidiaries, whether now owned or hereafter acquired, other than
agreements with Persons prohibiting any such lien on assets in which such
Person has a prior security interest which is permitted by ss.11.2.
11.11. Transaction with Affiliates. The Company will not, nor will
it permit any of its Subsidiaries to enter into, or cause, suffer or
permit to exist (a) any arrangement or contract with any of its other
Affiliates of a nature customarily entered into by Persons which are
Affiliates of each other (including management and similar contracts or
arrangements relating to the allocation of revenues, taxes and expenses or
otherwise) requiring any payments to be made by such Borrower or any of
its Subsidiaries to any Affiliate unless such arrangement is fair and
equitable to such Borrower or such Subsidiary; or (b) any other
transaction, arrangement, contract with any of their other Affiliates
which would not be entered into by a prudent Person in the position of
such Borrower or such Subsidiary with, or which is on terms which are less
favorable than are obtainable from, any Person which is not one of its
Affiliates.
11.12. Upstream Limitations. The Company will not, nor will it
permit any of its Subsidiaries to, enter into any agreement, contact or
arrangement (other than the Credit Agreement and the other Loan Documents)
restricting the ability of any Subsidiary to pay or make dividends or
distributions in cash or kind, to make loans, advances or other payments
of whatsoever nature or to make transfers or distributions of all or any
part of its assets to the Company to any Subsidiary of such Subsidiary.
11.13. Inconsistent Agreements. The Company will not nor will it
permit any of its Subsidiaries to enter into any agreement containing any
provision which would be violated or breached by the performance by the
Company or such Subsidiary of its obligations hereunder or under any of
the Loan Documents.
11.14. Business Activities. The Company will not, and will not
permit any of its Subsidiaries to, engage directly or indirectly (whether
through Subsidiaries or otherwise) in any type of business other than the
businesses conducted by them on the Closing Date and in related
businesses.
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11.15 Modification of Documents and Charter Documents. The Company
will not, nor will it permit any of its Subsidiaries to, consent to or
agree to any amendment, supplement or other modification to the Nicolet
Acquisition Documents, the AutoDiagnos Acquisition Documents or the
Capitalization Documents without the prior written consent of the Agent
unless such amendment, supplement or modification is immaterial and
ministerial in nature and could not reasonably be expected to have any
material adverse effect on the Agent's or the Bank's rights under the Loan
Documents or the Company's or any of its Subsidiaries' obligations under
the Loan Documents.
12. FINANCIAL COVENANTS OF THE BORROWER.
The Company covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note is outstanding or any Bank
has any obligation to make any Loans or the Agent has any obligation to issue,
extend or renew any Letters of Credit:
12.1. Leverage Ratio. The Company will not, at any time during any
period described in the table set forth below permit the Leverage Ratio
for such period to exceed the ratio set forth opposite such period in such
table:
-------------------------------------------------------------------
Period Ratio
-------------------------------------------------------------------
Closing Date - July 1, 2000 2.25:1.00
-------------------------------------------------------------------
July 2, 2000 - December 31, 2000 2.00:1.00
-------------------------------------------------------------------
Any time thereafter 1.75:1.00
-------------------------------------------------------------------
12.2. Quick Ratio. The Company will not, at any time during any
period described in the table set forth below, permit the ratio of
Consolidated Quick Assets to Consolidated Current Liabilities to be less
than the ratio set forth opposite such period in such table:
-------------------------------------------------------------------
Period Ratio
-------------------------------------------------------------------
Closing Date - July 1, 2000 0.75:1.00
-------------------------------------------------------------------
Any time thereafter 1.00:1.00
-------------------------------------------------------------------
12.3. Operating Cash Flow to Total Debt Service. The Company will
not permit the ratio of Consolidated Operating Cash Flow to Consolidated
Total Debt Service for any fiscal quarter ending during any period
described in the table set forth below to be less than the ratio set forth
opposite such period in such table:
Fiscal Quarter Ending Ratio
--------------------- -----
Closing Date - July 1, 2000 1.75:1.00
Each fiscal quarter ending thereafter 2.00:1.00
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12.4. Minimum Operating Income. The Company will not, at the end of
any fiscal quarter ending during any period described in the table set
forth below, permit Consolidated Net Operating Income for the immediately
preceding two fiscal quarters to be less than the amount set forth
opposite such period in such table:
Fiscal Quarter Ending Amount
--------------------- ------
April 1, 2000 $17,000,000
July 1, 2000 $15,500,000
September 30, 2000 $26,500,000
December 30, 2000 $35,500,000
Each fiscal quarter ending thereafter $25,000,000
13. CLOSING CONDITIONS.
The obligations of the Banks to make the initial Revolving Credit Loans
and the Nicolet Term Loan and of the Agent to issue any initial Letters of
Credit shall be subject to the satisfaction of the following conditions
precedent on or prior to the Closing Date:
13.1. Loan Documents, etc.
13.1.1. Loan Documents. Each of the Loan Documents shall have been
duly executed and delivered by the respective parties thereto, shall be in
full force and effect and shall be in form and substance satisfactory to
each of the Banks. Each Bank shall have received a fully executed copy of
each such document.
13.1.2. Nicolet Acquisition Documents. Each of the Nicolet
Acquisition Documents shall have been duly executed and delivered by the
respective parties thereto, shall be in full force and effect and shall be
in form and substance satisfactory to the Banks. Each Bank shall have
received a fully executed copy of each document.
13.2. Certified Copies of Charter Documents. Each of the Banks shall
have received from each of the Borrowers and each Guarantor a copy,
certified by a duly authorized officer of such Person to be true and
complete on the Closing Date, of each of (a) its charter or other
incorporation documents as in effect on such date of certification, and
(b) its by-laws as in effect on such date.
13.3. Corporate Action. All corporate action necessary for the valid
execution, delivery and performance by each of the Borrowers and the
Guarantors of this Credit Agreement and the other Loan Documents to which
it
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is or is to become a party shall have been duly and effectively taken, and
evidence thereof satisfactory to the Banks shall have been provided to
each of the Banks.
13.4. Incumbency Certificate. The Agent shall have received from
each of the Borrowers and the Guarantors an incumbency certificate, dated
as of the Closing Date, signed by a duly authorized officer or director of
such Borrower and such Guarantor, and giving the name and bearing a
specimen signature of each individual who shall be authorized: (a) to
sign, in the name and on behalf of each of such Borrower, each of the Loan
Documents to which such Borrower is or is to become a party; (b) in the
case of a Borrower, to make Loan Requests and Conversion Requests and to
apply for Letters of Credit; and (c) to give notices and to take other
action on its behalf under the Loan Documents.
13.5. Validity of Liens. The Security Documents shall be effective
to create in favor of the Agent a legal, valid and enforceable first
(except for Permitted Liens entitled to priority under applicable law)
security interest in and lien upon the Collateral. All filings,
recordings, deliveries of instruments and other actions necessary or
desirable in the opinion of the Agent to protect and preserve such
security interests shall have been duly effected. The Agent shall have
received evidence thereof in form and substance satisfactory to the Agent.
13.6. Perfection Certificates and UCC Search Results. The Agent
shall have received from each of the Borrowers and Guarantors a completed
and fully executed Perfection Certificate or "Collateral Certificate" and
the results of UCC searches (and other similar searches in non-U.S.
jurisdictions) with respect to the Collateral, indicating no liens other
than Permitted Liens and otherwise in form and substance satisfactory to
the Agent.
13.7. Certificates of Insurance. The Agent shall have received (a) a
certificate of insurance from an independent insurance broker dated as of
the Closing Date, identifying insurers, types of insurance, insurance
limits, and policy terms, and otherwise describing the insurance obtained
in accordance with the provisions of the Loan Documents and (b) certified
copies of all policies evidencing such insurance (or certificates
therefore signed by the insurer or an agent authorized to bind the
insurer).
13.8. Borrowing Base Report. The Agent shall have received from the
Company the initial Borrowing Base Report dated as of the Closing Date.
13.9. Accounts Receivable Aging Report. The Agent shall have
received from the Company the most recent Accounts Receivable aging report
of the Company dated as of a date which shall be no more than fifteen (15)
days prior to the Closing Date and the Company shall have notified the
Agent in writing on the Closing Date of any material deviation from the
Accounts Receivable values reflected in such Accounts Receivable aging
report and shall have provided the
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Agent with such supplementary documentation as the Agent may reasonably
request.
13.10. Solvency Certificate. The Agent shall have received an
officer's certificate of the Company dated as of the Closing Date as to
the solvency of such the Company and its Subsidiaries following the
consummation of the transactions contemplated herein and in form and
substance satisfactory to the Banks.
13.11. Opinion of Counsel. Each of the Banks and the Agent shall
have received a favorable legal opinion addressed to the Banks and the
Agent, dated as of the Closing Date, in form and substance satisfactory to
the Banks and the Agent, from (a) ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Fish, LLP, counsel
to the Company and the Domestic Subsidiaries which are Guarantors, (b)
Addleshaw, Booth & Co., counsel to the UK Subsidiaries; and (c) ▇▇▇▇▇▇ ▇▇▇
& Co., counsel to GenRad Ireland.
13.12. Payment of Fees. The Company shall have paid to the Banks or
the Agent, as appropriate, the fees pursuant to the Fee Letter.
13.13. Satisfaction of Conditions of Nicolet Acquisition. The Agent
shall have received evidence that all of the closing conditions in the
Nicolet Acquisition Documents have been satisfied without recourse to any
provision permitting the waiver by any party thereto of any condition,
obligation, covenant or other requirement or the Agent shall have approved
such waiver in writing, and that the Nicolet Acquisition has occurred. In
addition, the Company shall have completed the Nicolet Acquisition
pursuant to the terms of the Nicolet Acquisition Documents and otherwise
on terms that are satisfactory to the Agent in all respects, including
that the aggregate purchase price paid in connection with the Nicolet
Acquisition shall not exceed, in the aggregate, $40,000,000 and any fees
incurred in connection with the Nicolet Acquisition shall be in amounts
acceptable to the Agent and the Banks.
13.14. Consents and Approvals. The Agent shall have received
evidence that all consents and approvals necessary to complete the Nicolet
Acquisition and the transactions contemplated hereby have been obtained.
13.15. No Material Adverse Change. The Banks shall be satisfied that
there shall have occurred no material adverse change in the business,
operations, assets, properties or condition (financial or otherwise) of
the Borrowers, taken as a whole.
13.16. Limitation on Drawdowns at Closing. The principal amount of
all Revolving Credit Loans outstanding on the Closing Date shall not
exceed $25,000,000 and the Revolver Borrowers have not less than
$3,000,000 of availability to borrow Revolving Credit Loans.
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13.17. Closing Date Leverage Ratio. The Agent shall have received a
certificate from the Company demonstrating that on the Closing Date the
pro forma Leverage Ratio does not exceed 1.50 to 1.00.
13.18. Minimum EBITDA. The Banks shall have received a certificate
of an officer of the Company demonstrating that on the Closing Date the
pro forma EBITDA on a trailing twelve (12) month basis for the twelve (12)
months most recently ended shall not be less than $62,500,000.
14. CONDITIONS TO ALL BORROWINGS;
CONDITIONS TO AUTODIAGNOS TERM LOAN.
The obligations of the Banks to make any Loan, including the Revolving
Credit Loan and the Term Loans, and of the Agent to issue, extend or renew any
Letter of Credit, in each case whether on or after the Closing Date and the
obligations of the Banks to make the AutoDiagnos Term Loan, shall also be
subject to the satisfaction of the following conditions precedent:
14.1. Representations True; No Event of Default. Each of the
representations and warranties of any of the Borrowers and their
Subsidiaries contained in this Credit Agreement, the other Loan Documents
or in any document or instrument delivered pursuant to or in connection
with this Credit Agreement shall be true as of the date as of which they
were made and shall also be true at and as of the time of the making of
such Loan or the issuance, extension or renewal of such Letter of Credit,
with the same effect as if made at and as of that time (except to the
extent of changes resulting from transactions contemplated or permitted by
this Credit Agreement and the other Loan Documents and changes occurring
in the ordinary course of business that singly or in the aggregate are not
materially adverse, and to the extent that such representations and
warranties relate expressly to an earlier date) and no Default or Event of
Default shall have occurred and be continuing.
14.2. No Legal Impediment. No change shall have occurred in any law
or regulations thereunder or interpretations thereof that in the
reasonable opinion of any Bank would make it illegal for such Bank to make
such Loan or to participate in the issuance, extension or renewal of such
Letter of Credit or in the reasonable opinion of the Agent would make it
illegal for the Agent to issue, extend or renew such Letter of Credit.
14.3. Governmental Regulation. Each Bank shall have received such
statements in substance and form reasonably satisfactory to such Bank as
such Bank shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors
of the Federal Reserve System.
14.4. Proceedings and Documents. All proceedings in connection with
the transactions contemplated by this Credit Agreement, the other Loan
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Documents and all other documents incident thereto shall be satisfactory
in substance and in form to the Banks and to the Agent and the Agent's
Special Counsel, and the Banks, the Agent and such counsel shall have
received all information and such counterpart originals or certified or
other copies of such documents as the Agent may reasonably request.
14.5. Borrowing Base Report. The Agent shall have received the most
recent Borrowing Base Report required to be delivered to the Agent in
accordance with ss.10.4(f) and, if requested by the Agent, a Borrowing
Base Report dated within five (5) days of the Drawdown Date of such
Revolving Credit Loan or of the date of issuance, extension or renewal of
such Letter of Credit; provided that this ss.14.5 shall not be a condition
precedent to the AutoDiagnos Term Loan.
14.6. Exchange Limitations. There exists no reason whatsoever,
including without limitation, by reason of the application of any
so-called "currency exchange" laws or regulations (as in effect at the
time of any proposed borrowing hereunder) which could reasonably be
expected to interfere with any Borrower satisfying any of its Obligations
hereunder in full at such time as such Obligations become due and payable
pursuant to the terms hereof.
14.7. Conditions for AutoDiagnos Term Loan.
14.7.1. GenRad Sweden: Incorporation; Good Standing. The Agent shall
have received evidence satisfactory in form and substance to the Agent
that GenRad Sweden is a corporation (or similar business entity) duly
organized, validly existing and in good standing under the laws of Sweden.
14.7.2. Election Request. The Agent shall have received a duly
executed election request from GenRad Sweden and the Company evidencing
GenRad Sweden's election to become a Borrowing Subsidiary hereunder.
14.7.3. Drawing Period. The Agent shall have received a request from
GenRad Sweden to make the AutoDiagnos Term Loan on or prior to May 1,
2000, and all the conditions precedent to making such loan shall have been
satisfied by not later than May 1, 2000. To the extent GenRad Sweden has
not satisfied the conditions to the making of such AutoDiagnos Term Loan
(and requested such loan be made) by May 1, 2000, the Banks shall have no
obligation to make such Loan.
14.7.4. No Default. No Default or Event of Default shall have
occurred and be continuing, and all other conditions to the making of any
Loans hereunder have been satisfied.
14.7.5. Satisfaction of Conditions of AutoDiagnos Acquisition. The
Agent shall have received (a) a consolidated balance sheet and a
consolidated statement of income and cash flow of AutoDiagnos for each of
the fiscal years 1997, 1998 and 1999 (each such statement having been
accurately and completely
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translated into English), (b) a report, satisfactory in form and substance
to the Agent, from PricewaterhouseCoopers LLP as to historical financial
statements of AutoDiagnos as well as the projections prepared by
AutoDiagnos and all relevant work papers prepared in connection therewith,
(c) written certification from the Company that since the Balance Sheet
Date there has occurred no material adverse change in the financial
condition or business of AutoDiagnos as shown on the most recent financial
statements delivered to the Company by AutoDiagnos and (d) evidence that
all of the closing conditions in the AutoDiagnos Acquisition Documents
have been satisfied without recourse to any provision permitting the
waiver by any party thereto of any condition, obligation, covenant or
other requirement and the AutoDiagnos Acquisition has occurred. In
addition, GenRad Sweden shall have completed the AutoDiagnos Acquisition
pursuant to the terms of the AutoDiagnos Acquisition Documents and other
wise on terms that are reasonably satisfactory to the Agent in all
respects, including that GenRad Sweden shall have acquired at least ninety
percent (90%) of the outstanding capital stock of AutoDiagnos on the
AutoDiagnos Acquisition Closing Date and that the aggregate purchase price
paid in connection with the AutoDiagnos Acquisition shall not exceed, in
the aggregate, $30,000,000 and any fees incurred in connection with the
AutoDiagnos Acquisition shall be in amounts acceptable to the Agent and
the Banks.
14.7.6. Consents and Approvals. The Agent shall have received
evidence that all consents and approvals necessary to complete the
AutoDiagnos Acquisition and the transactions contemplated hereby have been
obtained.
14.7.7. Legal Opinion. Each of the Banks and the Agent shall have
received a favorable legal opinion addressed to the Banks and the Agent,
dated as of the AutoDiagnos Acquisition Closing Date, in form and
substance satisfactory to the Banks and the Agent, from
PricewaterhouseCoopers or such other counsel to the Company in the
AutoDiagnos Acquisition.
14.7.8. Term Notes. Each Bank shall have received a duly executed
and delivered Term Note from GenRad Sweden in the amount of its Commitment
Percentage of the principal amount of the AutoDiagnos Term Loan.
15. EVENTS OF DEFAULT; ACCELERATION; ETC.
15.1. Events of Default and Acceleration. If any of the following
events ("Events of Default" or, if the giving of notice or the lapse of
time or both is required, then, prior to such notice or lapse of time,
"Defaults") shall occur:
(a) any of the Borrowers shall fail to pay any principal of the
Loans or any Reimbursement Obligation or any amounts on the Overdraft
Facility when the same shall become due and payable, whether at the stated
date of maturity or any accelerated date of maturity or at any other date
fixed for payment;
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(b) any of the Borrowers shall fail to pay any interest on the
Loans, the Commitment Fee, any Letter of Credit Fee, the Agent's fee, or
other sums due hereunder or under any of the other Loan Documents, when
the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed
for payment;
(c) any of the Borrowers shall fail to comply with any of its
covenants contained in ss.ss.8, 10.1, 10.2, 10.4, 10.5.1, 10.5.3, 10.7,
10.9, 10.12, 10.13, 10.15, 10.16, 10.17, 10.18, 11 or 12;
(d) any Borrower or any of its Subsidiaries shall fail to perform
any term, covenant or agreement contained herein or in any of the other
Loan Documents (other than those specified elsewhere in this ss.15.1) for
fifteen (15) days after written notice of such failure has been given to
the Company by the Agent;
(e) any representation or warranty of any Borrower or any of its
Subsidiaries in this Credit Agreement or any of the other Loan Documents
or in any other document or instrument delivered pursuant to or in
connection with this Credit Agreement shall prove to have been false in
any material respect upon the date when made or deemed to have been made
or repeated;
(f) any Borrower or any of its Subsidiaries shall fail to pay at
maturity, or within any applicable period of grace, any obligation for
borrowed money or credit received or in respect of any Capitalized Leases
in an aggregate amount in excess of $1,000,000, or fail to observe or
perform any material term, covenant or agreement contained in any
agreement by which it is bound, evidencing or securing borrowed money or
credit received or in respect of any Capitalized Leases for such period of
time as would permit (assuming the giving of appropriate notice if
required) the holder or holders thereof or of any obligations issued
thereunder to accelerate the maturity thereof, or any such holder or
holders shall rescind or shall have a right to rescind the purchase of any
such obligations;
(g) any Borrower or any of its Subsidiaries shall make an assignment
for the benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator, examiner or receiver of any Borrower or any of its
Subsidiaries or of any substantial part of the assets of any Borrower or
any of its Subsidiaries or shall commence any case or other proceeding
relating to any Borrower or any of its Subsidiaries under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt,
dissolution, examinership or liquidation or similar law of any
jurisdiction, now or hereafter in effect, or any Insolvency Event shall
occur, or any Borrower or any of its Subsidiaries shall take any action to
authorize or in furtherance of any of the foregoing, or if any such
petition or application shall be filed or any such case or other
proceeding shall be commenced against any Borrower or any of its
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Subsidiaries and any Borrower or any of its Subsidiaries shall indicate
its approval thereof, consent thereto or acquiescence therein or such
petition or application shall not have been dismissed within forty-five
(45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating any Borrower or any of
its Subsidiaries bankrupt or insolvent, or approving a petition in any
such case or other proceeding, or a decree or order for relief is entered
in respect of any Borrower or any Subsidiary of any Borrower in an
involuntary case under federal bankruptcy laws as now or hereafter
constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty days, whether or not consecutive, any final
judgment against the Borrower or any of its Subsidiaries that, with other
outstanding final judgments, undischarged, against the Borrower or any of
its Subsidiaries exceeds in the aggregate $1,000,000.
(j) if any of the Loan Documents shall be cancelled, terminated,
revoked or rescinded or the Agent's security interests, mortgages or liens
in a substantial portion of the Collateral shall cease to be perfected, or
shall cease to have the priority contemplated by the Security Documents,
in each case otherwise than in accordance with the terms thereof or with
the express prior written agreement, consent or approval of the Banks, or
any action at law, suit or in equity or other legal proceeding to cancel,
revoke or rescind any of the Loan Documents shall be commenced by or on
behalf of any Borrower or any of its Subsidiaries party thereto or any of
their respective stockholders, or any court or any other governmental or
regulatory authority or agency of competent jurisdiction shall make a
determination that, or issue a judgment, order, decree or ruling to the
effect that, any one or more of the Loan Documents is illegal, invalid or
unenforceable in accordance with the terms thereof;
(k) any Borrower or any ERISA Affiliate incurs any liability to the
PBGC or a Guaranteed Pension Plan pursuant to Title IV of ERISA in an
aggregate amount exceeding $1,000,000, or any Borrower or any ERISA
Affiliate is assessed withdrawal liability pursuant to Title IV of ERISA
by a Multiemployer Plan requiring aggregate annual payments exceeding
$1,000,000, or any of the following occurs with respect to a Guaranteed
Pension Plan: (i) an ERISA Reportable Event, or a failure to make a
required installment or other payment (within the meaning of ss.302(f)(1)
of ERISA), provided that the Agent determines in its reasonable discretion
that such event (A) could be expected to result in liability of the
Borrower or any of its Subsidiaries to the PBGC or such Guaranteed Pension
Plan in an aggregate amount exceeding $1,000,000 and (B) could constitute
grounds for the termination of such Guaranteed Pension Plan by the PBGC,
for the appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan or for the imposition
of a lien in favor of such Guaranteed Pension Plan; or (ii) the
appointment by a
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ of a trustee to administer such Guaranteed
Pension Plan; or (iii) the institution by the PBGC of proceedings to
terminate such Guaranteed Pension Plan;
(l) any Borrower or any of its Subsidiaries shall be enjoined,
restrained or in any way prevented by the order of any court or any
administrative or regulatory agency from conducting any material part of
its business and such order shall continue in effect for more than thirty
(30) days;
(m) there shall occur any material damage to, or loss, theft or
destruction of, any Collateral, whether or not insured, or any strike,
lockout, labor dispute, embargo, condemnation, act of God or public enemy,
or other casualty, which in any such case causes, for more than fifteen
(15) consecutive days, the cessation or substantial curtailment of revenue
producing activities at any facility of any Borrower or any of its
Subsidiaries if such event or circumstance is not covered by business
interruption insurance and would have a material adverse effect on the
business or financial condition of such Borrower or such Subsidiary;
(n) there shall occur the loss, suspension or revocation of, or
failure to renew, any license or permit now held or hereafter acquired by
any Borrower or any of its Subsidiaries if such loss, suspension,
revocation or failure to renew would have a material adverse effect on the
business or financial condition of such Borrower or such Subsidiary;
(o) any Borrower or any of its Subsidiaries shall be indicted for a
state or federal crime, or any civil or criminal action shall otherwise
have been brought or threatened against such Borrower or any of its
Subsidiaries, a punishment for which in any such case could include the
forfeiture of any assets of such Borrower or such Subsidiary included in
the Borrowing Base or any assets of such Borrower or such Subsidiary not
included in the Borrowing Base but having a fair market value in excess of
$1,000,000; or
(p) the Company shall at any time, legally or beneficially own less
than one hundred percent (100%) of the capital stock of Holdings, GenRad
Ireland, and any Domestic Subsidiary which is a Guarantor, and, after the
AutoDiagnos Acquisition has been consummated, AutoDiagnos, as adjusted
pursuant to any stock split, stock dividend or recapitalization or
reclassification of the capital of each such other Person; or Holdings
shall at any time, legally or beneficially own less than one hundred
percent (100%) of the capital stock of the other UK Borrowers, as adjusted
pursuant to any stock split, stock dividend or recapitalization or
reclassification of the capital stock of each such other UK Borrower; or
(q) any person or group of persons (within the meaning of Section 13
or 14 of the Securities Exchange Act of 1934, as amended) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the
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Securities and Exchange Commission under said Act) of twenty percent (20%)
or more of the outstanding shares of common stock of the Company; or,
during any period of twelve consecutive calendar months, individuals who
were directors of the Company on the first day of such period shall cease
to constitute a majority of the board of directors of the Company;
then, and in any such event, so long as the same may be continuing, the
Agent may, and upon the request of the Majority Banks shall, by notice in
writing to the Company declare all amounts owing with respect to this
Credit Agreement, the Notes and the other Loan Documents and all
Reimbursement Obligations to be, and they shall thereupon forthwith
become, immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby expressly waived by
the Borrowers; provided that in the event of any Event of Default
specified in ss.ss.15.1(g) or 15.1(h), all such amounts shall become
immediately due and payable automatically and without any requirement of
notice from the Agent or any Bank.
15.2. Termination of Commitments. If any one or more of the Events
of Default specified in ss.15.1(g) or ss.15.1(h) shall occur, any unused
portion of the credit hereunder shall forthwith terminate and each of the
Banks shall be relieved of all further obligations to make Loans to the
Borrowers and the Agent shall be relieved of all further obligations to
issue, extend or renew Letters of Credit. If any other Event of Default
shall have occurred and be continuing, or if on any Drawdown Date or other
date for issuing, extending or renewing any Letter of Credit the
conditions precedent to the making of the Loans to be made on such
Drawdown Date or (as the case may be) to issuing, extending or renewing
such Letter of Credit on such other date are not satisfied, the Agent may
and, upon the request of the Majority Banks, shall, by notice to the
Company, terminate the unused portion of the credit hereunder, and upon
such notice being given such unused portion of the credit hereunder shall
terminate immediately and each of the Banks shall be relieved of all
further obligations to make Loans and the Agent shall be relieved of all
further obligations to issue, extend or renew Letters of Credit. No
termination of the credit hereunder shall relieve the Borrower or any of
its Subsidiaries of any of the Obligations.
15.3. Remedies. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Banks shall
have accelerated the maturity of the Loans pursuant to ss.15.1, each Bank,
if owed any amount with respect to the Loans or the Reimbursement
Obligations, may, with the consent of the Majority Banks but not
otherwise, proceed to protect and enforce its rights by suit in equity,
action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Credit
Agreement and the other Loan Documents or any instrument pursuant to which
the Obligations to such Bank are evidenced, including as permitted by
applicable law the obtaining of the ex parte appointment of a receiver,
and, if such amount shall have become due, by declaration or otherwise,
proceed to enforce the payment thereof or any other legal or equitable
right of
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such Bank. No remedy herein conferred upon any Bank or the Agent or the
holder of any Note or purchaser of any Letter of Credit Participation is
intended to be exclusive of any other remedy and each and every remedy
shall be cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by statute
or any other provision of law.
15.4. Distribution of Collateral Proceeds. In the event that
following the occurrence or during the continuance of any Default or Event
of Default, the Agent or any Bank, as the case may be, receives any monies
in connection with the enforcement of any of the Security Documents, or
otherwise with respect to the realization upon any of the Collateral, such
monies shall be distributed for application as follows:
(a) First, to the payment of, or (as the case may be) the
reimbursement of the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agent in connection with the collection of such monies by
the Agent, for the exercise, protection or enforcement by the Agent of all
or any of the rights, remedies, powers and privileges of the Agent under
this Credit Agreement or any of the other Loan Documents or in respect of
the Collateral or in support of any provision of adequate indemnity to the
Agent against any taxes or liens which by law shall have, or may have,
priority over the rights of the Agent to such monies;
(b) Second, to all other Obligations in such order or preference as
the Majority Banks may determine; provided, however, that (i)
distributions shall be made (A) pari passu among Obligations with respect
to the Agent's fee payable pursuant to ss.6.2 and all other Obligations
and (B) with respect to each type of Obligation owing to the Banks, such
as interest, principal, fees and expenses, among the Banks pro rata, and
(ii) the Agent may in its discretion make proper allowance to take into
account any Obligations not then due and payable;
(c) Third, upon payment and satisfaction in full or other provisions
for payment in full satisfactory to the Banks and the Agent of all of the
Obligations, to the payment of any obligations required to be paid
pursuant to ss.9-504(1)(c) of the Uniform Commercial Code of the
Commonwealth of Massachusetts; and
(d) Fourth, the excess, if any, shall be returned to the Company or
to such other Persons as are entitled thereto.
15.5. Exchange Rate. If, for the purpose of obtaining judgment in
any court or obtaining an order enforcing a judgment, it becomes necessary to
convert any amount due under this Credit Agreement in Dollars or in any other
currency (hereinafter in this ss.15.5 called the "first currency") into any
other currency (hereinafter in this ss.15.5 called the "second currency"),
then the conversion shall be made at the Agent's spot rate of exchange for
buying the first currency with the second currency
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prevailing at the Agent's close of business on the Business Day next
preceding the day on which the judgment is given or (as the case may be)
the order is made. Any payment made to the Agent or any Bank pursuant to
this Credit Agreement in the second currency shall constitute a discharge
of the obligations of the respective Borrower to pay to the Agent and the
Banks any amount originally due to the Agent and the Banks in the first
currency under this Credit Agreement only to the extent of the amount of
the first currency which the Agent and each of the Banks is able, on the
date of the receipt by it of such payment in any second currency, to
purchase, in accordance with the Agent's and such Bank's normal banking
procedures, with the amount of such second currency so received. If the
amount of the first currency falls short of the amount originally due to
the Agent and the Banks in the first currency under this Credit Agreement,
the Borrowers hereby agree that they will indemnify the Agent and each of
the Banks against and save the Agent and each of the Banks harmless from
any shortfall so arising. This indemnity shall constitute an obligation of
each such Borrower separate and independent from the other obligations
contained in this Credit Agreement, shall give rise to a separate and
independent cause of action and shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum or sums in
respect of amounts due to the Agent or any Bank under this Credit
Agreement or under any such judgment or order. Any such shortfall shall be
deemed to constitute a loss suffered by the Agent and each such Bank, as
the case may be, and the Borrowers shall not be entitled to require any
proof or evidence of any actual loss. The covenant contained in this
ss.15.5 shall survive the payment in full of all of the other obligations
of the Borrowers under this Credit Agreement.
16. SETOFF.
Regardless of the adequacy of any collateral, during the continuance of
any Event of Default, any deposits or other sums credited by or due from any of
the Banks to any Borrower and any securities or other property of any Borrower
in the possession of such Bank may be applied to or set off by such Bank against
the payment of Obligations and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of any Borrower to such Bank. Each of the Banks agrees with
each other Bank that (a) if an amount to be set off is to be applied to
Indebtedness of any Borrower to such Bank, other than Indebtedness evidenced by
the Notes held by such Bank or constituting Reimbursement Obligations owed to
such Bank, such amount shall be applied ratably to such other Indebtedness and
to the Indebtedness evidenced by all such Notes held by such Bank or
constituting Reimbursement Obligations owed to such Bank, and (b) if such Bank
shall receive from any Borrower, whether by voluntary payment, exercise of the
right of setoff, counterclaim, cross action, enforcement of the claim evidenced
by the Notes held by, or constituting Reimbursement Obligations owed to, such
Bank by proceedings against the Borrower at law or in equity or by proof thereof
in bankruptcy, reorganization, liquidation, receivership or similar proceedings,
or otherwise, and shall retain and apply to the payment of the Note or Notes
held by, or Reimbursement Obligations owed to, such Bank any amount in excess of
its ratable portion of the payments received by all of the Banks with respect to
the Notes held by, and Reimbursement Obligations owed to,
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all of the Banks, such Bank will make such disposition and arrangements with the
other Banks with respect to such excess, either by way of distribution, pro
tanto assignment of claims, subrogation or otherwise as shall result in each
Bank receiving in respect of the Notes held by it or Reimbursement Obligations
owed it, its proportionate payment as contemplated by this Credit Agreement;
provided that if all or any part of such excess payment is thereafter recovered
from such Bank, such disposition and arrangements shall be rescinded and the
amount restored to the extent of such recovery, but without interest.
17. THE AGENT.
17.1. Authorization.
(a) The Agent is authorized to take such action on behalf of each of
the Banks and to exercise all such powers as are hereunder and under any
of the other Loan Documents and any related documents delegated to the
Agent, together with such powers as are reasonably incident thereto (and
the Agent shall act as trustee of the security, rights and benefits
constituted by the Loan Documents executed or to be executed by the
Borrowers and the Agent hereby declares that it will hold such security
and such rights and benefits in trust for the benefit of each Bank subject
to the terms of these presents), provided that no duties or
responsibilities not expressly assumed herein or therein shall be implied
to have been assumed by the Agent.
(b) The relationship between the Agent and each of the Banks is that
of an independent contractor. The use of the term "Agent" is for
convenience only and is used to describe, as a form of convention, the
independent contractual relationship between the Agent and each of the
Banks. Nothing contained in this Credit Agreement nor the other Loan
Documents shall be construed to create an agency, trust or other fiduciary
relationship between the Agent and any of the Banks, provided that the
Agent shall act as security trustee pursuant to, and in accordance with,
certain of the Security Documents governed by English and Irish law.
(c) As an independent contractor empowered by the Banks to exercise
certain rights and perform certain duties and responsibilities hereunder
and under the other Loan Documents, the Agent is nevertheless a
"representative" of the Banks, as that term is defined in Article 1 of the
Uniform Commercial Code, for purposes of actions for the benefit of the
Banks and the Agent with respect to all collateral security and guaranties
contemplated by the Loan Documents. Such actions include the designation
of the Agent as "secured party", "mortgagee" or the like on all financing
statements and other documents and instruments, whether recorded or
otherwise, relating to the attachment, perfection, priority or enforcement
of any security interests, mortgages or deeds of trust in collateral
security intended to secure the payment or performance of any of the
Obligations, all for the benefit of the Banks and the Agent.
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17.2. Employees and Agents. The Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled
to take, and to rely on, advice of counsel concerning all matters
pertaining to its rights and duties under this Credit Agreement and the
other Loan Documents. The Agent may utilize the services of such Persons
as the Agent in its sole discretion may reasonably determine, and all
reasonable fees and expenses of any such Persons shall be paid by the
Company.
17.3. No Liability. Neither the Agent nor any of its shareholders,
directors, officers or employees nor any other Person assisting them in
their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be
taken, in good faith by it or them hereunder or under any of the other
Loan Documents, or in connection herewith or therewith, or be responsible
for the consequences of any oversight or error of judgment whatsoever,
except that the Agent or such other Person, as the case may be, may be
liable for losses due to its willful misconduct or gross negligence.
17.4. No Representations.
17.4.1. General. The Agent shall not be responsible for the
execution or validity or enforceability of this Credit Agreement, the
Notes, the Letters of Credit, any of the other Loan Documents or any
instrument at any time constituting, or intended to constitute, collateral
security for the Notes, or for the value of any such collateral security
or for the validity, enforceability or collectability of any such amounts
owing with respect to the Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan
Documents or in any certificate or instrument hereafter furnished to it by
or on behalf of the Borrowers or any of their Subsidiaries, or be bound to
ascertain or inquire as to the performance or observance of any of the
terms, conditions, covenants or agreements herein or in any instrument at
any time constituting, or intended to constitute, collateral security for
the Notes or to inspect any of the properties, books or records of the
Borrowers or any of its Subsidiaries. The Agent shall not be bound to
ascertain whether any notice, consent, waiver or request delivered to it
by the Borrowers or any holder of any of the Notes shall have been duly
authorized or is true, accurate and complete. The Agent has not made nor
does it now make any representations or warranties, express or implied,
nor does it assume any liability to the Banks, with respect to the credit
worthiness or financial conditions of the Borrowers or any of their
Subsidiaries. Each Bank acknowledges that it has, independently and
without reliance upon the Agent or any other Bank, and based upon such
information and documents as it has deemed appropriate, made its own
credit analysis and decision to enter into this Credit Agreement.
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17.5. Payments.
17.5.1. Payments to Agent. A payment by any Borrower to the Agent
hereunder or any of the other Loan Documents for the account of any Bank
shall constitute a payment to such Bank. The Agent agrees promptly to
distribute to each Bank such Bank's pro rata share of payments received by
the Agent for the account of the Banks except as otherwise expressly
provided herein or in any of the other Loan Documents.
17.5.2. Distribution by Agent. If in the good faith opinion of the
Agent the distribution of any amount received by it in such capacity
hereunder, under the Notes or under any of the other Loan Documents might
involve it in liability, it may refrain from making distribution until its
right to make distribution shall have been adjudicated by a court of
competent jurisdiction. If a court of competent jurisdiction shall adjudge
that any amount received and distributed by the Agent is to be repaid,
each Person to whom any such distribution shall have been made shall
either repay to the Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and to
such Persons as shall be determined by such court.
17.5.3. Delinquent Banks. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any
Bank that fails (a) to make available to the Agent its pro rata share of
any Loan or to purchase any Letter of Credit Participation or (b) to
comply with the provisions of ss.16 with respect to making dispositions
and arrangements with the other Banks, where such Bank's share of any
payment received, whether by setoff or otherwise, is in excess of its pro
rata share of such payments due and payable to all of the Banks, in each
case as, when and to the full extent required by the provisions of this
Credit Agreement, shall be deemed delinquent (a "Delinquent Bank") and
shall be deemed a Delinquent Bank until such time as such delinquency is
satisfied. A Delinquent Bank shall be deemed to have assigned any and all
payments due to it from any Borrower, whether on account of outstanding
Loans, Unpaid Reimbursement Obligations, interest, fees or otherwise, to
the remaining nondelinquent Banks for application to, and reduction of,
their respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations. The Delinquent Bank hereby authorizes the Agent
to distribute such payments to the nondelinquent Banks in proportion to
their respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations. A Delinquent Bank shall be deemed to have
satisfied in full a delinquency when and if, as a result of application of
the assigned payments to all outstanding Loans and Unpaid Reimbursement
Obligations of the nondelinquent Banks, the Banks' respective pro rata
shares of all outstanding Loans and Unpaid Reimbursement Obligations have
returned to those in effect immediately prior to such delinquency and
without giving effect to the nonpayment causing such delinquency.
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17.6. Holders of Notes. The Agent may deem and treat the payee of
any Note or the purchaser of any Letter of Credit Participation as the
absolute owner or purchaser thereof for all purposes hereof until it shall
have been furnished in writing with a different name by such payee or by a
subsequent holder, assignee or transferee.
17.7. Indemnity. The Banks ratably agree hereby to indemnify and
hold harmless the Agent and its affiliates from and against any and all
claims, actions and suits (whether groundless or otherwise), losses,
damages, costs, expenses (including any expenses for which the Agent or
such affiliate has not been reimbursed by the Borrower as required by
ss.18), and liabilities of every nature and character arising out of or
related to this Credit Agreement, the Notes, or any of the other Loan
Documents or the transactions contemplated or evidenced hereby or thereby,
or the Agent's actions taken hereunder or thereunder, except to the extent
that any of the same shall be directly caused by the Agent's willful
misconduct or gross negligence. In the event, subsequent to receiving any
payments by any Bank hereunder, the Agent receives any payment by the
Borrower resulting from the Borrower's indemnity obligations arising
pursuant to ss.18 hereof for any claims, actions, suits, losses, damages,
costs, expenses or liabilities arising out of or related to this Credit
Agreement and any of the other Loan Documents and the result of such
subsequent payment would cause the Agent to receive a payment in an amount
which exceeds its claims, actions, suits, losses, damages, costs, expenses
or liabilities then the Agent shall refund to the Banks which have funded
any such payments hereunder, on a pro rata basis based on the amount so
funded by each Bank, the amount of such excess. The parties hereto hereby
acknowledge and agree that any payment made by any Bank hereunder shall in
no manner, effect the Borrowers' indemnification obligations pursuant to
ss.18 hereof.
17.8. Agent as Bank. In its individual capacity, Fleet shall have
the same obligations and the same rights, powers and privileges in respect
to its Commitment and the Loans made by it, and as the holder of any of
the Notes and as the purchaser of any Letter of Credit Participations, as
it would have were it not also the Agent.
17.9. Resignation. The Agent may resign at any time by giving sixty
(60) days prior written notice thereof to the Banks and the Borrowers.
Upon any such resignation, the Majority Banks shall have the right to
appoint a successor Agent. Unless a Default or Event of Default shall have
occurred and be continuing, such successor Agent shall be reasonably
acceptable to the Borrowers. If no successor Agent shall have been so
appointed by the Majority Banks and shall have accepted such appointment
within thirty (30) days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Banks, appoint
a successor Agent, which shall be a financial institution having a rating
of not less than A or its equivalent by Standard & Poor's Corporation.
Upon the acceptance of any appointment as Agent hereunder by a successor
Agent, such successor Agent shall thereupon succeed to and become vested
with
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all the rights, powers, privileges and duties of the retiring Agent, and
the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation, the provisions of this
Credit Agreement and the other Loan Documents shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Agent.
17.10. Notification of Defaults and Events of Default. Each Bank
hereby agrees that, upon learning of the existence of a Default or an
Event of Default, it shall promptly notify the Agent thereof. The Agent
hereby agrees that upon receipt of any notice under this ss.17.10 it shall
promptly notify the other Banks of the existence of such Default or Event
of Default.
17.11. Duties in the Case of Enforcement. In case one or more Events
of Default have occurred and shall be continuing, and whether or not
acceleration of the Obligations shall have occurred, the Agent shall, if
(a) so requested by the Majority Banks and (b) the Banks have provided to
the Agent such additional indemnities and assurances against expenses and
liabilities as the Agent may reasonably request, proceed to enforce the
provisions of the Security Documents authorizing the sale or other
disposition of all or any part of the Collateral and exercise all or any
such other legal and equitable and other rights or remedies as it may have
in respect of such Collateral. The Majority Banks may direct the Agent in
writing as to the method and the extent of any such sale or other
disposition, the Banks hereby agreeing to indemnify and hold the Agent,
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Agent need
not comply with any such direction to the extent that the Agent reasonably
believes the Agent's compliance with such direction to be unlawful or
commercially unreasonable in any applicable jurisdiction.
18. EXPENSES AND INDEMNIFICATION.
18.1. Expenses. The Borrowers agree to pay (a) the reasonable costs
of producing and reproducing this Credit Agreement, the other Loan
Documents and the other agreements and instruments mentioned herein, (b)
any taxes (including any interest and penalties in respect thereto)
payable by the Agent or any of the Banks (other than taxes based upon the
Agent's or any Bank's net income) on or with respect to the transactions
contemplated by this Credit Agreement (the Borrowers hereby agreeing to
indemnify the Agent and each Bank with respect thereto), (c) the
reasonable fees, expenses and disbursements of the Agent's Special Counsel
or any local counsel to the Agent incurred in connection with the
preparation, syndication, administration or interpretation of the Loan
Documents and other instruments mentioned herein, each closing hereunder,
any amendments, modifications, approvals, consents or waivers hereto or
hereunder, or the cancellation of any Loan Document upon payment in full
in cash of all of the Obligations or pursuant to any terms of such Loan
Document for providing for such cancellation, (d) the fees, expenses and
disbursements of the Agent or any of its affiliates incurred by the Agent
or such
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affiliate in connection with the preparation, syndication, administration
or interpretation of the Loan Documents and other instruments mentioned
herein, including all title insurance premiums and surveyor, engineering
and appraisal charges, (e) all reasonable out-of-pocket expenses
(including without limitation reasonable attorneys' fees and costs, which
attorneys may be employees of any Bank or the Agent, and reasonable
consulting, accounting, appraisal, investment banking and similar
professional fees and charges) incurred by any Bank or the Agent in
connection with (i) the enforcement of or preservation of rights under any
of the Loan Documents against the Borrower or any of its Subsidiaries or
the administration thereof after the occurrence of a Default or Event of
Default and (ii) any litigation, proceeding or dispute whether arising
hereunder or otherwise, in any way related to any Bank's or the Agent's
relationship with the Borrower or any of its Subsidiaries and (f) all
reasonable fees, expenses and disbursements of any Bank or the Agent
incurred in connection with UCC searches, UCC filings or mortgage
recordings.
18.2. Indemnification. Each of the Borrowers agrees to indemnify and
hold harmless the Agent, its affiliates and the Banks from and against any
and all claims, actions and suits whether groundless or otherwise, and
from and against any and all liabilities, losses, damages and expenses of
every nature and character arising out of this Credit Agreement or any of
the other Loan Documents or the transactions contemplated hereby
including, without limitation, (a) any actual or proposed use by the
Borrowers or any of their Subsidiaries of the proceeds of any of the Loans
or Letters of Credit, (b) any actual or alleged infringement of any
patent, copyright, trademark, service ▇▇▇▇ or similar right of the
Borrower or any of its Subsidiaries comprised in the Collateral, (c) the
Borrower or any of its Subsidiaries entering into or performing this
Credit Agreement or any of the other Loan Documents or (d) with respect to
the Borrower and its Subsidiaries and their respective properties and
assets, the violation of any Environmental Law, the presence, disposal,
escape, seepage, leakage, spillage, discharge, emission, release or
threatened release of any Hazardous Substances or any action, suit,
proceeding or investigation brought or threatened with respect to any
Hazardous Substances (including, but not limited to, claims with respect
to wrongful death, personal injury or damage to property), in each case
including, without limitation, the reasonable fees and disbursements of
counsel and allocated costs of internal counsel incurred in connection
with any such investigation, litigation or other proceeding. In
litigation, or the preparation therefor, the Banks and the Agent and its
affiliates shall be entitled to select their own counsel and, in addition
to the foregoing indemnity, the Borrowers agree to pay promptly the
reasonable fees and expenses of such counsel. If, and to the extent that
the obligations of the Borrowers under this ss.18.2 are unenforceable for
any reason, the Borrowers hereby agree to make the maximum contribution to
the payment in satisfaction of such obligations which is permissible under
applicable law.
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18.3. Survival. The covenants contained in this ss.18 shall survive
payment or satisfaction in full of all other Obligations.
19. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrowers or any of their Subsidiaries
pursuant hereto shall be deemed to have been relied upon by the Banks and the
Agent, notwithstanding any investigation heretofore or hereafter made by any of
them, and shall survive the making by the Banks of any of the Loans and the
issuance, extension or renewal of any Letters of Credit, as herein contemplated,
and shall continue in full force and effect so long as any Letter of Credit or
any amount due under this Credit Agreement or the Notes or any of the other Loan
Documents remains outstanding or any Bank has any obligation to make any Loans
or the Agent has any obligation to issue, extend or renew any Letter of Credit,
and for such further time as may be otherwise expressly specified in this Credit
Agreement. All statements contained in any certificate or other paper delivered
to any Bank or the Agent at any time by or on behalf of any Borrower or any of
its Subsidiaries pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by such
Borrower or such Subsidiary hereunder.
20. ASSIGNMENT AND PARTICIPATION.
20.1. Conditions to Assignment by Banks. Except as provided herein,
each Bank may assign to one or more Eligible Assignees all or a portion of
its interests, rights and obligations under this Credit Agreement
(including all or a portion of its Revolving Credit Commitment Percentage
and Revolving Credit Commitment and/or its Term Loan Commitment Percentage
and Term Loan Commitment, and the same portion of the Loans at the time
owing to it, the Notes held by it and its participating interest in the
risk relating to any Letters of Credit); provided that (a) unless such
assignment is to another Bank or to an affiliate of the transfer Bank,
each of the Agent and, unless a Default or Event of Default shall have
occurred and be continuing, the Company shall have given its prior written
consent to such assignment, which consent will not be unreasonably
withheld, (b) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Bank's rights and obligations
under this Credit Agreement, (c) each assignment shall be in an amount
that is a whole multiple of $1,000,000 if such assignment is less than the
assigning Bank's Commitment or Term Loan Commitment and (d) the parties to
such assignment shall execute and deliver to the Agent, for recording in
the Register (as hereinafter defined), an Assignment and Acceptance,
substantially in the form of Exhibit F hereto (an "Assignment and
Acceptance"), together with any Notes subject to such assignment. Upon
such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the
execution thereof, (i) the assignee thereunder shall be a party hereto
and, to the
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extent provided in such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder, and (ii) the assigning Bank shall, to the
extent provided in such assignment and upon payment to the Agent of the
registration fee referred to in ss.20.3, be released from its obligations
under this Credit Agreement.
20.2. Certain Representations and Warranties; Limitations;
Covenants. By executing and delivering an Assignment and Acceptance, the
parties to the assignment thereunder confirm to and agree with each other
and the other parties hereto as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, the assigning Bank makes no representation or
warranty, express or implied, and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection
with this Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or the attachment, perfection or priority of any
security interest or mortgage,
(b) the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrowers and their Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the
performance or observance by the Borrowers and their Subsidiaries or any
other Person primarily or secondarily liable in respect of any of the
Obligations of any of their obligations under this Credit Agreement or any
of the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto;
(c) such assignee confirms that it has received a copy of this
Credit Agreement, together with copies of the most recent financial
statements referred to in ss.9.4 and ss.10.4 and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Bank, the Agent or any other Bank and based on such documents
and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this Credit
Agreement;
(e) such assignee represents and warrants that it is an Eligible
Assignee;
(f) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this
Credit Agreement and the other Loan Documents as are delegated to the
Agent by the
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terms hereof or thereof, together with such powers as are reasonably
incidental thereto;
(g) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Credit
Agreement are required to be performed by it as a Bank;
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and
(i) such assignee acknowledges that it has made arrangements with
the assigning Bank satisfactory to such assignee with respect to its pro
rata share of Letter of Credit Fees in respect of outstanding Letters of
Credit.
20.3. Register. The Agent shall maintain a copy of each Assignment
and Acceptance delivered to it and a register or similar list (the
"Register") for the recordation of the names and addresses of the Banks
and the Commitment Percentage of, and principal amount of the Loans owing
to and Letter of Credit Participations purchased by, the Banks from time
to time. The entries in the Register shall be conclusive, in the absence
of manifest error, and the Borrower, the Agent and the Banks may treat
each Person whose name is recorded in the Register as a Bank hereunder for
all purposes of this Credit Agreement. The Register shall be available for
inspection by the Company and the Banks at any reasonable time and from
time to time upon reasonable prior notice. Upon each such recordation, the
assigning Bank agrees to pay to the Agent a registration fee in the sum of
$3,500.
20.4. New Notes. Upon its receipt of an Assignment and Acceptance
executed by the parties to such assignment, together with each Note
subject to such assignment, the Agent shall (a) record the information
contained therein in the Register, and (b) give prompt notice thereof to
the Company and the Banks (other than the assigning Bank). Within five (5)
Business Days after receipt of such notice, the Borrowers, at their own
expense, shall execute and deliver to the Agent, in exchange for each
surrendered Note, a new Note to the order of such Eligible Assignee in an
amount equal to the amount assumed by such Eligible Assignee pursuant to
such Assignment and Acceptance and, if the assigning Bank has retained
some portion of its obligations hereunder, a new Note to the order of the
assigning Bank in an amount equal to the amount retained by it hereunder.
Such new Notes shall provide that they are replacements for the
surrendered Notes, shall be in an aggregate principal amount equal to the
aggregate principal amount of the surrendered Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of the assigned Notes. Within five (5) days of
issuance of any new Notes pursuant to this ss.20.4, the Borrowers shall
deliver an opinion of counsel, addressed to the Banks and the Agent,
relating to the due authorization, execution and delivery of such new
Notes and the legality, validity and binding
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effect thereof, in form and substance satisfactory to the Banks. The
surrendered Notes shall be cancelled and returned to the Borrowers.
20.5. Participations. Each Bank may sell participations to one or
more banks or other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan Documents;
provided that (a) each such participation shall be in an amount of not
less than $1,000,000, (b) any such sale or participation shall not affect
the rights and duties of the selling Bank hereunder to the Borrowers and
(c) the only rights granted to the participant pursuant to such
participation arrangements with respect to waivers, amendments or
modifications of the Loan Documents shall be the rights to approve
waivers, amendments or modifications that would reduce the principal of or
the interest rate on any Loans, extend the term or increase the amount of
the Commitment of such Bank as it relates to such participant, reduce the
amount of any commitment fees or Letter of Credit Fees to which such
participant is entitled or extend any regularly scheduled payment date for
principal or interest.
20.6. Disclosure. The Borrowers agree that in addition to
disclosures made in accordance with standard and customary banking
practices any Bank may disclose information obtained by such Bank pursuant
to this Credit Agreement to assignees or participants and potential
assignees or participants hereunder; provided that such assignees or
participants or potential assignees or participants shall agree (i) to
treat in confidence such information unless such information otherwise
becomes public knowledge, (ii) not to disclose such information to a third
party, except as required by law or legal process and (iii) not to make
use of such information for purposes of transactions unrelated to such
contemplated assignment or participation. For purposes of this ss.20.6 an
assignee or participant or potential assignee or participant may include a
counterparty with whom such Bank has entered into or potentially might
enter into a derivative contract referenced to credit or other risks or
events arising under this Credit Agreement or any other Loan Document.
20.7. Assignee or Participant Affiliated with the Borrowers. If any
assignee Bank is an Affiliate of any Borrower, then any such assignee Bank
shall have no right to vote as a Bank hereunder or under any of the other
Loan Documents for purposes of granting consents or waivers or for
purposes of agreeing to amendments or other modifications to any of the
Loan Documents or for purposes of making requests to the Agent pursuant to
ss.15.1 or ss.15.2, and the determination of the Majority Banks shall for
all purposes of this Credit Agreement and the other Loan Documents be made
without regard to such assignee Bank's interest in any of the Loans or
Reimbursement Obligations. If any Bank sells a participating interest in
any of the Loans or Reimbursement Obligations to a participant, and such
participant is the Borrower or an Affiliate of such Borrower, then such
transferor Bank shall promptly notify the Agent of the sale of such
participation. A transferor Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for purposes of
granting consents or waivers or for purposes of agreeing to amendments or
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modifications to any of the Loan Documents or for purposes of making
requests to the Agent pursuant to ss.15.1 or ss.15.2 to the extent that
such participation is beneficially owned by any Borrower or any Affiliate
of any Borrower, and the determination of the Majority Banks shall for all
purposes of this Credit Agreement and the other Loan Documents be made
without regard to the interest of such transferor Bank in the Loans or
Reimbursement Obligations to the extent of such participation.
20.8. Miscellaneous Assignment Provisions. Any assigning Bank shall
retain its rights to be indemnified pursuant to ss.ss.6.7, 6.8 and 18 with
respect to any claims or actions arising prior to the date of such
assignment. If any assignee Bank is not incorporated under the laws of the
United States of America or any state thereof, it shall, prior to the date
on which any interest or fees are payable hereunder or under any of the
other Loan Documents for its account, deliver to the Company and the Agent
certification as to its exemption from deduction or withholding of any
United States federal income taxes. If any Reference Bank transfers all of
its interest, rights and obligations under this Credit Agreement, the
Agent shall, in consultation with the Company and with the consent of the
Company and the Majority Banks, appoint another Bank to act as a Reference
Bank hereunder. Anything contained in this ss.20 to the contrary
notwithstanding, (a) any Bank may at any time pledge all or any portion of
its interest and rights under this Credit Agreement (including all or any
portion of its Notes) to any of the twelve Federal Reserve Banks organized
under ss.4 of the Federal Reserve Act, 12 U.S.C. ss.341 and (b) any Bank
that is a fund that invests in bank loans may at any time pledge all or
any portion of its interests and rights with respect to its Term Note to
any trustee for, or any other representative of, holders of obligations
owed or securities issued by such fund as security for such obligations or
securities, provided that any foreclosure or similar action by such
trustee or other representative shall be subject to the other provisions
of this ss.20. No such pledge or the enforcement thereof shall release the
pledgor Bank from its obligations hereunder or under any of the other Loan
Documents.
20.9. Assignment by Borrower. The Borrowers shall not assign or
transfer any of their rights or obligations under any of the Loan
Documents without the prior written consent of each of the Banks.
21. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes or any Letter of Credit Applications shall be in
writing and shall be delivered in hand, mailed by United States registered or
certified first class mail, postage prepaid, sent by overnight courier, or sent
by telegraph, telecopy, facsimile or telex and confirmed by delivery via courier
or postal service, addressed as follows:
(a) if to the Borrowers, at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Financial
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Officer, or at such other address for notice as the Borrower shall last
have furnished in writing to the Person giving the notice;
(b) if to the Agent, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President, or such other
address for notice as the Agent shall last have furnished in writing to
the Person giving the notice; and
(c) if to any Bank, at such Bank's address set forth on Schedule 1
hereto, or such other address for notice as such Bank shall have last
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
22. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). EACH BORROWER
AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN ss.21. EACH
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
23. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
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24. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Credit Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought.
25. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit Agreement nor any term
hereof may be changed, waived, discharged or terminated, except as provided in
ss.27.
26. WAIVER OF JURY TRIAL.
Each of the Borrowers hereby waives its right to a jury trial with respect
to any action or claim arising out of any dispute in connection with this Credit
Agreement, the Notes or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of such rights and
obligations. Except as prohibited by law, each of the Borrowers hereby waives
any right it may have to claim or recover in any litigation referred to in the
preceding sentence any special, exemplary, punitive or consequential damages or
any damages other than, or in addition to, actual damages. Each Borrower (i)
certifies that no representative, agent or attorney of any Bank or the Agent has
represented, expressly or otherwise, that such Bank or the Agent would not, in
the event of litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that the Agent and the Banks have been induced to enter into this
Credit Agreement, the other Loan Documents to which it is a party by, among
other things, the waivers and certifications contained herein.
27. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this Credit Agreement to
be given by the Banks may be given, and any term of this Credit Agreement, the
other Loan Documents or any other instrument related hereto or mentioned herein
may be amended, and the performance or observance by the Borrowers or any of
their Subsidiaries of any terms of this Credit Agreement, the other Loan
Documents or such other instrument or the continuance of any Default or Event of
Default may be waived (either generally or in a particular instance and either
retroactively or prospectively) with, but only with, the written consent of the
Borrower and the written consent of the Majority Banks. Notwithstanding the
foregoing, the rate of interest on the Notes (other than interest accruing
pursuant to ss.6.11.2 following the effective date of any waiver by the Majority
Banks of the Default or Event of Default relating thereto) or the amount of the
Commitment Fee or Letter of Credit Fees may not be decreased without the written
consent of each Bank affected thereby; the amount of the
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Commitments and the amount of the Term Loans may not be increased without
written consent of each Bank affected thereby; the Revolving Credit Loan
Maturity Date, the Term Loan Maturity Date and any date fixed for payment may
not be postponed without the written consent of each Bank affected thereby; the
amount of any scheduled repayment may not be decreased without the consent of
each Bank affected thereby; the release of all or substantially all of the
Collateral or any Guaranty may not be authorized without the consent of each
Bank affected thereby; this ss.27 and the definition of Majority Banks may not
be amended, without the written consent of all of the Banks; and the amount of
the Agent's Fee or any Letter of Credit Fees payable for the Agent's account and
ss.17 may not be amended without the written consent of the Agent. No waiver
shall extend to or affect any obligation not expressly waived or impair any
right consequent thereon. No course of dealing or delay or omission on the part
of the Agent or any Bank in exercising any right shall operate as a waiver
thereof or otherwise be prejudicial thereto. No notice to or demand upon the
Borrowers shall entitle the Borrower to other or further notice or demand in
similar or other circumstances.
28. SEVERABILITY.
The provisions of this Credit Agreement are severable and if any one
clause or provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, then such invalidity or unenforceability shall affect
only such clause or provision, or part thereof, in such jurisdiction, and shall
not in any manner affect such clause or provision in any other jurisdiction, or
any other clause or provision of this Credit Agreement in any jurisdiction.
29. PARI PASSU TREATMENT.
(a) Notwithstanding anything to the contrary set forth herein, each
payment or prepayment of principal and interest received after the occurrence of
an Event of Default hereunder shall be distributed pari passu among the Banks,
in accordance with the aggregate outstanding principal amount of the Obligations
owing to each Bank divided by the aggregate outstanding principal amount of all
Obligations.
(b) Following the occurrence and during the continuance of any Event of
Default, each Bank agrees that if it shall, through the exercise of a right of
banker's lien, setoff or counterclaim against any Borrower (pursuant to ss.14 or
otherwise), including a secured claim under Section 506 of the Bankruptcy Code
or other security or interest arising from or in lieu of, such secured claim,
received by such Bank under any applicable bankruptcy, insolvency or other
similar law or otherwise, obtain payment (voluntary or involuntary) in respect
of the Notes, Loans, Letters of Credit, and other Obligations held by it as a
result of which the unpaid principal portion of the Notes and the Obligations
held by it shall be proportionately less than the unpaid principal portion of
the Notes and Obligations held by any other Bank, it shall be deemed to have
simultaneously purchased from such other Bank a participation in the Notes and
Obligations held by such other Bank, so that the aggregate unpaid principal
amount of the Notes, Obligations and participations in Notes and Obligations
held by each Bank
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shall be in the same proportion to the aggregate unpaid principal amount of the
Notes and Obligations then outstanding as the principal amount of the Notes and
other Obligations held by it prior to such exercise of banker's lien, setoff or
counterclaim was to the principal amount of all Notes and other Obligations
outstanding prior to such exercise of banker's lien, setoff or counterclaim;
provided, however, that if any such purchase or purchases or adjustments shall
be made pursuant to this ss.29 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall be
rescinded to the extent of such recovery and the purchase price or prices or
adjustments restored without interest.
(c) Following the occurrence and during the continuance of any Event of
Default, each Bank agrees that it shall be deemed to have, automatically upon
the occurrence of such Event of Default, purchased from each other Bank a
participation in the risk associated with the Notes and Obligations held by such
other Bank, so that the aggregate principal amount of the Notes and Obligations
held by each Bank shall be equivalent to such Bank's Commitment Percentage. Upon
demand by the Agent, made at the request of the Majority Banks, each Bank that
has purchased such participation shall pay the amount of such participation to
one or more Bank(s) whose outstanding Loans and participations in Letters of
Credit exceed their Commitment Percentages.
(d) Each Borrower expressly consents to the foregoing arrangements and
agrees that any Person holding such a participation in the Notes and the
Obligations deemed to have been so purchased may exercise any and all rights of
banker's lien, setoff or counterclaim with respect to any and all moneys owing
by such Borrower to such Person as fully as if such Person had made a Loan
directly to such Borrower in the amount of such participation.
-116-
IN WITNESS WHEREOF, the undersigned have duly executed this Revolving
Credit and Term Loan Agreement as a sealed instrument as of the date first set
forth above.
GENRAD, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name:
Title:
GENRAD HOLDINGS LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name:
Title: Director
GENRAD EUROPE LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name:
Title: Director
GENRAD LIMITED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name:
Title: Director
FLEET NATIONAL BANK, individually
and as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President
BANKBOSTON, N.A., acting through its
London branch, as Overdraft Bank
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: VICE PRESIDENT
ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Group Vice President
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SUMMIT BANK
By: /s/ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Title: Vice President
CITIZENS BANK OF MASSACHUSETTS
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
By: /s/ ▇.▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇.▇. ▇▇▇▇▇▇▇
Title:
-----------------------------------------
Authorized Signatory
BANK ONE, NA
(Main Office Chicago)
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
LLOYDS TSB BANK PLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Acquisition Finance
D080
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Assistant Director
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: VICE PRESIDENT
FAMILY BANK, FSB
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: SENIOR VICE PRESIDENT
EXHIBIT A
FORM OF REVOLVING CREDIT NOTE
$_____________ as of _________
FOR VALUE RECEIVED, each of the undersigned GENRAD, INC., a
Massachusetts corporation (the "Company"), GENRAD HOLDINGS LIMITED, a
corporation organized under the laws of England and Wales ("Holdings"),
GENRAD EUROPE LIMITED, a corporation organized under the laws of England and
Wales ("GenRad Europe") and GENRAD LIMITED, a corporation organized under the
laws of England and Wales ("GenRad Ltd.", and, collectively with the Company,
Holdings and GenRad Europe, the "Borrowers", and each individually, a
"Borrower"), hereby promises to pay to the order of [INSERT NAME OF LENDER]
(the "Bank") at the Agent's Head Office:
(a) prior to or on the Revolving Credit Loan Maturity Date the principal
amount of __________ DOLLARS ($ ___________) or, if less, the aggregate
unpaid principal amount of Revolving Credit Loans advanced by the Bank to
the Borrowers pursuant to the Revolving Credit and Term Loan Agreement
dated as of March 24, 2000 (as amended and in effect from time to time,
the "Credit Agreement"), by and among the Borrowers, the Agent, the Bank
and other parties thereto;
(b) the principal outstanding hereunder from time to time at the times
provided in the Credit Agreement; and
(c) interest on the principal balance hereof from time to time outstanding
from the Closing Date under the Credit Agreement through and including the
maturity date hereof at the times and at the rate provided in the Credit
Agreement.
This Revolving Credit Note ("Note") evidences borrowings under and has
been issued by the Borrowers in accordance with the terms of the Credit
Agreement. The Bank and any holder hereof is entitled to the benefits of the
Credit Agreement, the Security Documents and the other Loan Documents, and
may enforce the agreements of the Borrowers contained therein, and any holder
hereof may exercise the respective remedies provided for thereby or otherwise
available in respect thereof, all in accordance with the respective terms
thereof. All capitalized terms used in this Note and not otherwise defined
herein shall have the same meanings herein as in the Credit Agreement.
Each of the Borrowers irrevocably authorizes the Bank to make or cause
to be made, at or about the time of the Drawdown Date of any Revolving Credit
Loan or at
-2-
the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the making of
such Revolving Credit Loan or (as the case may be) the receipt of such payment.
The outstanding amount of the Revolving Credit Loans set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records, maintained by the Bank with respect to any
Revolving Credit Loans shall be prima facie evidence of the principal amount
thereof owing and unpaid to the Bank, but the failure to record, or any error in
so recording, any such amount on any such grid, continuation or other record
shall not limit or otherwise affect the obligation of the Borrowers hereunder or
under the Credit Agreement to make payments of principal of and interest on this
Note when due.
Each of the Borrowers has the right in certain circumstances and the
obligation under certain other circumstances to prepay the whole or part of the
principal of this Note on the terms and conditions specified in the Credit
Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Note and all of the unpaid interest accrued thereon may
become or be declared due and payable in the manner and with the effect provided
in the Credit Agreement.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Bank or such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any further occasion.
Each of the Borrowers and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWERS HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). EACH OF THE BORROWERS AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND THE CONSENT TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY
SUCH SUIT BEING MADE UPON THE BORROWERS BY MAIL AT THE ADDRESS SPECIFIED IN
Section 21 OF THE CREDIT AGREEMENT. EACH OF THE BORROWERS
-3-
HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF
ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT
COURT.
This Note shall be deemed to take effect as a sealed instrument under the
laws of the Commonwealth of Massachusetts and as a deed under the laws of
England and Wales.
-4-
IN WITNESS WHEREOF, each of the undersigned has caused this Revolving
Credit Note to be signed in its corporate name and its corporate seal to be
impressed thereon by its duly authorized officer as of the day and year first
above written.
GENRAD, INC.
By: ______________________________
Name:
Title:
GENRAD HOLDINGS LIMITED
By: ______________________________
Name:
Title:
GENRAD EUROPE LIMITED
By: ______________________________
Name:
Title:
GENRAD LIMITED
By: ______________________________
Name:
Title:
--------------------------------------------------------------------------------
Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
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EXHIBIT B
FORM OF LOAN REQUEST
____________, ____
Fleet National Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President
Re: Loan Request
Ladies and Gentlemen:
Reference is hereby made to that certain Revolving Credit and Term Loan
Agreement, dated as of March 24, 2000 (as the same may be amended and in effect
from time to time, the "Credit Agreement"), by and among GenRad, Inc., GenRad
Holdings Ltd., GenRad Europe Limited, GenRad Limited (collectively, the
"Borrowers" and each individually, a "Borrower"), Fleet National Bank and the
other lending institutions party thereto (collectively, the "Banks"), Fleet
National Bank as agent for itself and the other Banks (the "Agent"). Capitalized
terms which are used herein without definition and which are defined in the
Credit Agreement shall have the same meanings herein as in the Credit Agreement.
Pursuant to Section 2.6 of the Credit Agreement, we hereby request that a
Revolving Credit Loan consisting of [a Base Rate Loan in the principal amount of
$___________, or a Eurocurrency Rate Loan in the principal Dollar Equivalent
amount of $__________ in [Dollars] [specify Optional Currency] with an Interest
Period of _________] be made on __________ __, ____ to our Account No.
_____________ located with _____________. We understand that this request is
irrevocable and binding on us and obligates us to accept the requested Revolving
Credit Loan on such date.
We hereby certify (a) that the aggregate outstanding principal amount of
the Revolving Credit Loans on today's date is $_________, (b) that we will use
the proceeds of the requested Revolving Credit Loan in accordance with the
provisions of the Credit Agreement, (c) that each of the representations and
warranties contained in the Credit Agreement or in any document or instrument
delivered pursuant to or in connection with the Credit Agreement was true in all
material respects as of the date as of which it was made and is true at and as
of the date hereof (except to the extent of changes resulting from transactions
contemplated or permitted by the Credit Agreement and changes occurring in the
ordinary course of business that singly or in the
aggregate are not materially adverse, and to the extent that such
representations and warranties related expressly to an earlier date) and (d)
that no Default or Event of Default has occurred and is continuing.
Very truly yours,
GENRAD, INC.
GENRAD HOLDINGS LTD.
GENRAD EUROPE LIMITED
GENRAD LIMITED
By: _______________________________
Name:
Title:
EXHIBIT C
FORM OF TERM NOTE
$_________________ as of ________________
FOR VALUE RECEIVED, [INSERT BORROWER}, a [ ] corporation (the
"Borrower") hereby promises to pay to the order of [INSERT NAME OF LENDER] (the
"Bank") at the Agent's Head Office:
(a) prior to or on the Term Loan Maturity Date the principal amount of
_____ _____________ DOLLARS ($ __________), or, if less, the aggregate unpaid
principal amount of the Term Loan advanced by the Bank to the Borrower pursuant
to the Revolving Credit and Term Loan Agreement dated as of March 24, 2000 (as
amended and in effect from time to time, the "Credit Agreement"), by and among
GenRad, Inc., GenRad Holdings Limited, GenRad Europe Limited, and GenRad
Limited, the Agent, the Bank and other parties thereto;
(b) the principal outstanding hereunder from time to time at the times
provided in the Credit Agreement; and
(c) interest from the date hereof on the principal amount from time to
time outstanding to and including the maturity hereof at the rates and terms and
in all cases in accordance with the terms of the Credit Agreement.
This Term Note (this "Note) evidences borrowings under and has been issued
by the Borrower in accordance with the terms of the Credit Agreement. The Bank
and any holder hereof is entitled to the benefits of the Credit Agreement, the
Security Documents and the other Loan Documents, and may enforce the agreements
of the Borrower contained therein, and any holder hereof may exercise the
respective remedies provided for thereby or otherwise available in respect
thereof, all in accordance with the respective terms thereof. All capitalized
terms used in this Note and not otherwise defined herein shall have the same
meanings herein as in the Credit Agreement.
The Borrower irrevocably authorizes the Bank to make or cause to be made,
at the time of receipt of any payment of principal of this Note, an appropriate
notation on the grid attached to this Note, or the continuation of such grid, or
any other similar record, including computer records, reflecting the receipt of
such payment. The outstanding amount of the Term Loan set forth on the grid
attached to this Note, or the continuation of such grid, or any other similar
record, including computer records, maintained by the Bank with respect to the
Term Loan shall be prima facie evidence of the principal amount of the Term Loan
owing and unpaid to the Bank, but the failure to record, or any error in so
recording, any such amount on any such grid, continuation or other record shall
not limit or otherwise affect the obligation of the Borrower hereunder or under
the Credit Agreement to make payments of principal of and interest on this Note
when due.
-2-
The Borrower has the right in certain circumstances and the obligation
under certain other circumstances to prepay the whole or part of the principal
of this Note on the terms and conditions specified in the Credit Agreement.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Note and all of the unpaid interest accrued thereon may
become or be declared due and payable in the manner and with the effect provided
in the Credit Agreement.
No delay or omission on the part of the Bank or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of the Bank or such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any future occasion.
The Borrower and every endorser and guarantor of this Note or the
obligation represented hereby waives presentment, demand, notice, protest and
all other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note, and assents to any extension
or postponement of the time of payment or any other indulgence, to any
substitution, exchange or release of collateral and to the addition or release
of any other party or person primarily or secondarily liable.
THIS NOTE AND THE OBLIGATIONS OF THE BORROWER HEREUNDER SHALL FOR ALL
PURPOSES BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR
CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS
NOTE MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY
FEDERAL COURT SITTING THEREIN AND THE CONSENT TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING
MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN Section 21 OF THE
CREDIT AGREEMENT. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH
SUIT IS BROUGHT IN AN INCONVENIENT COURT.
This Note shall be deemed to take effect as a sealed instrument under the
laws of the Commonwealth of Massachusetts.
-3-
IN WITNESS WHEREOF, the undersigned has caused this Note to be signed in
its corporate name and its corporate seal to be impressed thereon by its duly
authorized officer as of the day and year first above written.
[Corporate Seal]
[INSERT BORROWER]
By: ____________________________
Name:
Title:
-4-
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Amount of Balance of
Amount Principal Paid Principal Notation
Date of Loan or Prepaid Unpaid Made By:
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EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
_______________, ____
Fleet National Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President
Ladies and Gentlemen:
Reference is hereby made to that certain Revolving Credit Agreement and
Term Loan Agreement, dated as of March 24, 2000 (as the same may be amended and
in effect from time to time, the "Credit Agreement"), by and among GenRad, Inc.,
GenRad Holdings Ltd., GenRad Europe Limited, GenRad Limited (collectively, the
"Borrowers" and each individually, a "Borrower"), Fleet National Bank and the
other lending institutions party thereto (collectively, the "Banks"), and Fleet
National Bank as agent for itself and the other Banks (the "Agent"). Capitalized
terms which are used herein without definition and which are defined in the
Credit Agreement shall have the same meanings herein as in the Credit Agreement.
Pursuant to Section 10.4(c) of the Credit Agreement, the principal
financial or accounting officer of the Company hereby certifies to you as
follows: (a) the information furnished in the calculations attached hereto
was true and correct as of the last day of the fiscal [year] [quarter] [month]
ended __________; (b) as of the date of this certificate, there exists no
Default or Event of Default or condition which would, with either or both the
giving of notice or the lapse of time, result in a Default or an Event of
Default; and (c) the financial statements delivered herewith were prepared in
accordance with generally accepted accounting principles applied on a basis
consistent with prior periods.
IN WITNESS WHEREOF, the undersigned officer has executed this Compliance
Certificate as of the date first written above.
GENRAD, INC.
By: ___________________________
Name:
Title:
COMPLIANCE CERTIFICATE
GENRAD, INC.
12.1. Leverage Ratio
(a) Total Funded Indebtedness as at ________________ $___________
(b) EBITDA for four consecutive fiscal quarters
(treated as a single accounting period) for
fiscal ending:
(i) Consolidated Net Income, plus $___________
(ii) depreciation and amortization, plus $___________
(iii) income tax expense, plus $___________
(iv) Consolidated Total Interest Expense, plus $___________
(v) other noncash charges, minus $___________
(vi) noncash gains $___________
$___________
(c) Ratio of (a) to (b) ____:1.00
(Not to exceed the ratio for the relevant
period as set forth in the table below)
----------------------------------------------------------
Period Ratio
------ -----
----------------------------------------------------------
Closing Date - June 30, 2000 2.25:1.00
----------------------------------------------------------
July 1, 2000 - December 31, 2000 2.00:1.00
----------------------------------------------------------
Any time thereafter 1.75:1.00
----------------------------------------------------------
12.2. Quick Ratio
(a) Consolidated Quick Assets as at _________________ $___________
(i) cash, plus
(ii) Cash Equivalents, plus
(iii) Accounts Receivable
(b) Consolidated Current Liabilities as at___________ $___________
(c) Ratio of (a) to (b) ____:1.00
(Not to be less than the ratio for the relevant
period as set forth in the table below)
-2-
----------------------------------------------------
Period Ratio
------ -----
----------------------------------------------------
Closing Date - June 30, 2000 0.75:1.00
----------------------------------------------------
Any time thereafter 1.00:1.00
----------------------------------------------------
12.3. Operating Cash Flow to Total Debt Service
(a) Consolidated Operating Cash Flow for fiscal quarter ending ________
(i) EBITDA for such period, minus $________
(ii) cash payments for taxes paid during period,
minus $________
(iii) Capital Expenditures made during period,
minus $________
(iv) software development costs for such period
capitalized pursuant to FASB Statement
No. 86 $________
$___________
(b) Consolidated Total Debt Service for fiscal quarter ending ________
(i) Consolidated Total Interest Expense for
fiscal quarter, plus $________
(ii) scheduled repayments of principal $________
during such fiscal quarter in respect of:
(1) the borrowing of money or obtaining
credit
(2) the deferred purchase price of assets
(3) Synthetic or Capitalized Leases
(4) reimbursement obligations on letters
of credit or bankers' acceptances
(5) guaranty obligations
$___________
(c) Ratio of (a) to (b) ____:1.00
(Not to be less than the ratio for the relevant
period as set forth in the table below)
---------------------------------------------------
Fiscal Quarter Ending Ratio
--------------------- -----
---------------------------------------------------
Closing Date -- June 30, 2000 1.75:1.00
---------------------------------------------------
Each fiscal quarter ending thereafter 2.00:1.00
---------------------------------------------------
-3-
12.4. Minimum Operating Income
Consolidated Net Operating Income for fiscal quarter ended ______
(for immediately preceding two fiscal quarters)
(i) EBITDA for such period, minus $________
(ii) amortization and depreciation for such period $________
Consolidated Net Operating Income not to be less $___________
than the amount for the relevant period as set forth
in the table below
---------------------------------------------------------
Fiscal Quarter Ending Amount
--------------------- ------
---------------------------------------------------------
March 31, 2000 $17,000,000
---------------------------------------------------------
June 30, 2000 $15,500,000
---------------------------------------------------------
September 30, 2000 $26,500,000
---------------------------------------------------------
December 31, 2000 $35,500,000
---------------------------------------------------------
Each fiscal quarter ending thereafter $25,000,000
---------------------------------------------------------
EXHIBIT E
GENRAD, INC.
Form of Borrowing Base Report
_______________, ____, ____
To Each of the Banks Referred to Below
c/o Fleet National Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is hereby made to that certain Revolving Credit and Term Loan
Agreement, dated as of March 24, 2000 (as the same may be amended and in effect
from time to time, the "Credit Agreement"), by and among GenRad, Inc., GenRad
Holdings Ltd., GenRad Europe Limited, GenRad Limited (collectively, the
"Borrowers" and each individually, a "Borrower"), Fleet National Bank and the
other lending institutions party thereto (collectively, the "Banks"), and Fleet
National Bank as agent for itself and the other Banks (the "Agent"). Capitalized
terms which are used herein without definition and which are defined in the
Credit Agreement shall have the same meanings herein as in the Credit Agreement.
The undersigned hereby certifies as follows: (a) the information
furnished in the materials attached hereto was true, correct and complete as
at ____________ _____, _____, (b) as of the date hereof, there exists no
Default or Event of Default; and (c) the representations and warranties
contained in Section 9 of the Credit Agreement were correct when made and are
correct at and as of the date hereof (except to the extent of changes
resulting from transactions contemplated or permitted by the Credit Agreement
and changes occurring in the ordinary course of business that singly or in
the aggregate are not materially adverse, and to the extent that such
representations and warranties related expressly to an earlier date).
IN WITNESS WHEREOF, the undersigned has executed this Borrowing Base
Report on behalf of GenRad, Inc. as of the date first written above.
GENRAD, INC.
By: _____________________________
Name:
Title:
BORROWING BASE REPORT
GENRAD, INC.
As of _____________, ____
1. Accounts Receivable $_____________
(net of any credits, rebates, offsets, holdbacks or
other adjustments or commissions payable to third
parties that are adjustments to such Accounts
Receivable)
Less: a. Accounts Receivable that the
Company does not reasonably and
in good faith believe are collectible $_____________
Less: b. Accounts Receivable that are with
account debtors or obligors that: (i)
are Affiliates, (ii) did not purchase
goods or services in an arm's length
transaction, (iii) are insolvent or
involved in any bankruptcy or
similar proceeding, or (iv) are not, in
the Agent's judgment, creditworthy $_____________
Less: c. Accounts Receivable that are (i) for
obligations not fully performed, or
consist of progress ▇▇▇▇▇▇▇▇ or ▇▇▇▇
and hold invoices or (ii) subject to a
dispute or claim that would reduce
the cash amount payable therefor $_____________
Less: d. Accounts Receivable that are subject
to any pledge, restriction, security
interest or other lien or
encumbrance (other than those
created by the Loan Documents) $_____________
Less: e. Accounts Receivable of a Borrower
or Guarantor in which the Agent
does not have a valid and perfected
first priority security interest $_____________
Less: f. Accounts Receivable that are more than
ninety (90) days past the earlier of (i)
the invoice date or (ii) the date of
shipment of
goods or the end of the calendar month
following the provision of services $_____________
Less: g. Accounts Receivable that are due
from an account debtor located in
Minnesota (unless the Company or
applicable subsidiary (i) has
received a certificate of authority to
do business and is in good standing
in such state or (ii) has filed a notice
of business activities report with the
appropriate office or agency of such
state for the current year) $_____________
Less: h. Accounts Receivable that are due
from an account debtor or other
obligor if more than fifteen percent
(15%) of the aggregate amount of all
Accounts Receivable owing from
such account debtor would
otherwise not be Eligible Accounts
Receivable $_____________
Less: i. Accounts Receivable that are not
payable in Dollars (or such other
currency as the Agent shall
determine in its sole discretion) $_____________
Less: j. Accounts Receivable that are
payable from an office located
outside the United States, Canada or
the United Kingdom (except those
Accounts Receivable due from the
entities listed on Schedule 1A) $_____________
Less: k. Accounts Receivable that are
secured by a letter of credit (unless
the Agent has a perfected security
interest in such letter of credit) $_____________
Equals: Accounts Receivable $_____________
Multiplied by 0.80 $_____________
l. Eligible Accounts Receivable $_____________
2. Inventory: $_____________
Less: a. Inventory held on consignment, not
otherwise owned or of a type no
longer sold $_____________
Less: b. Inventory which has been returned
or is damaged or subject to any
pledge, restriction, security interest
or other lien or encumbrance (other
than those permitted by the Loan
Documents) $_____________
Less: c. Inventory which is held by third
parties and for which no waiver has
been obtained from such third party $_____________
Less: d. Inventory which is held on leased
property and for which no waiver
has been obtained from such lessor
or sublessor $_____________
Less: e. Inventory of a Borrower or
Guarantor in which the Agent does
not have a valid and perfected first
priority security interest $_____________
Less: f. Inventory which has been shipped $_____________
Less: g. Inventory which is located outside
of the United States (or such other
jurisdiction as the Agent shall
determine in its sole discretion) $_____________
Less: h. Inventory which the Agent
reasonably deems to be obsolete or
not marketable $_____________
Equals: Inventory $_____________
Multiplied by .40 $_____________
i. Eligible Inventory $_____________
3. Borrowing Base
Item 1(l) plus Item 2(i) $_____________
4. Borrowing Base Availability:
(Lesser of $50,000,000 or Item 3) $_____________
5. a. Revolving Credit Loans Outstanding $_____________
b. Maximum Drawing Amount
of all Letters of Credit
outstanding $_____________
c. Unpaid Reimbursement Obligations $_____________
d. Total Outstanding
Item 5(a) plus Item 5(b) plus Item 5(c) $_____________
6. Availability: Item 4 minus Item 5(d) $_____________
EXHIBIT F
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated as of ___________________
Reference is made to the Revolving Credit Agreement and Term Loan
Agreement, dated as of March 24, 2000 (as from time to time amended and in
effect, the "Credit Agreement"), by and among GenRad, Inc., GenRad Holdings
Limited, GenRad Europe Limited, GenRad Limited (collectively, the "Borrowers"),
Fleet National Bank and the other lending institutions party thereto
(collectively, the "Banks"), and Fleet National Bank as agent for itself and the
other Banks (the "Agent"). Capitalized terms used herein and not otherwise
defined shall have the meanings assigned to such terms in the Credit Agreement.
_____________________ (the "Assignor") and ______________________ (the
"Assignee") hereby agree as follows:
1. Assignment. Subject to the terms and conditions of this Assignment and
Acceptance, the Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes without recourse to the Assignor, a
$_________ interest in and to the rights, benefits, indemnities and obligations
of the Assignor under the Credit Agreement equal to ______% in respect of the
Total Commitment and Term Loans immediately prior to the Effective Date (as
hereinafter defined).
2. Assignor's Representations. The Assignor (a) represents and warrants
that (i) it is legally authorized to enter into this Assignment and Acceptance,
(ii) as of the date hereof, its Commitment is $_____________ its Commitment
Percentage is _______%, the aggregate outstanding principal balance of its
Revolving Credit Loans equals $_____________ the aggregate amount of its Letter
of Credit Participations equals $____________ and the aggregate outstanding
principal balance of its Term Loans equals $ (in each case prior to giving
effect to the assignment contemplated hereby but after giving effect to any
contemplated assignments which have not yet become effective), and (iii)
immediately after giving effect to all assignments which have not yet become
effective, the Assignor's Commitment Percentage will be sufficient to give
effect to this Assignment and Acceptance, (b) makes no representation or
warranty, express or implied, and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any of the other Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, any of the other Loan Documents or any other instrument or document
furnished pursuant thereto or the attachment, perfection or priority of
-2-
any security interest or mortgage, other than that it is the legal and
beneficial owner of the interest being assigned by it hereunder free and clear
of any claim or encumbrance; (c) makes no representation or warranty and assumes
no responsibility with respect to the financial condition of the Borrowers or
any of their Subsidiaries or any other Person primarily or secondarily liable in
respect of any of the Obligations, or the performance or observance by the
Borrowers or any of their Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations of any of its
obligations under the Credit Agreement or any of the other Loan Documents or any
other instrument or document delivered or executed pursuant thereto; and (d)
attaches hereto the Note(s) delivered to it under the Credit Agreement.
The Assignor requests that the Borrowers exchange the Assignor's
[Revolving Credit Note][Nicolet Term Note] [AutoDiagnos Term Note] for a new
[Revolving Credit Note] [Nicolet Term Note] [AutoDiagnos Term Note] payable to
the Assignor and the Assignee as follows:
Notes Payable to Amount of Revolving Amount of Amount of
the Order of: Credit Note Nicolet Term Note AutoDiagnos Term Note
---------------- ------------------- ----------------- ---------------------
Assignor $____________ $___________ $___________
Assignee $____________ $___________ $___________
3. Assignee's Representations. The Assignee (a) represents and warrants
that (i) it is duly and legally authorized to enter into this Assignment and
Acceptance, (ii) the execution, delivery and performance of this Assignment and
Acceptance do not conflict with any provision of law or of the charter or
by-laws of the Assignee, or of any agreement binding on the Assignee, (iii) all
acts, conditions and things required to be done and performed and to have
occurred prior to the execution, delivery and performance of this Assignment and
Acceptance, and to render the same the legal, valid and binding obligation of
the Assignee, enforceable against it in accordance with its terms, have been
done and performed and have occurred in due and strict compliance with all
applicable laws; (b) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Sections 9.4 and 10.4 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance upon the Assignor, the Agent or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (d) represents and warrants that it is an
Eligible Assignee; (e) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under the Credit Agreement and
the other Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (f) agrees that
it will perform
-3-
in accordance with their terms all the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank; and (g)
acknowledges that it has made arrangements with the Assignor satisfactory to the
Assignee with respect to its pro rata share of Letter of Credit Fees in respect
of outstanding Letters of Credit.
4. Effective Date. The effective date for this Assignment and Acceptance
shall be ____________ (the "Effective Date"). Following the execution of this
Assignment and Acceptance and the consent of the Company hereto having been
obtained, each party hereto shall deliver its duly executed counterpart hereof
to the Agent for consent by the Agent and recording in the Register by the
Agent. Schedule 1 to the Credit Agreement shall thereupon be replaced as of the
Effective Date by the Schedule 1 annexed hereto.
5. Rights Under Credit Agreement. Upon such acceptance and recording,
from and after the Effective Date, (a) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Bank thereunder, and (b) the
Assignor shall, with respect to that portion of its interest under the Credit
Agreement assigned hereunder, relinquish its rights and be released from its
obligations under the Credit Agreement; provided, however, that the Assignor
shall retain its rights to be indemnified pursuant to Section 18 of the
Credit Agreement with respect to any claims or actions arising prior to the
Effective Date.
6. Payments. Upon such acceptance of this Assignment and Acceptance by the
Agent and such recording, from and after the Effective Date, the Agent shall
make all payments in respect of the rights and interests assigned hereby
(including payments of principal, interest, fees and other amounts) to the
Assignee. The Assignor and the Assignee shall make any appropriate adjustments
in payments for periods prior to the Effective Date by the Agent or with respect
to the making of this assignment directly between themselves.
7. Governing Law. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO TAKE
EFFECT AS A SEALED INSTRUMENT TO BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS (WITHOUT REFERENCE TO
CONFLICT OF LAWS).
8. Counterparts. This Assignment and Acceptance may be executed in any
number of counterparts which shall together constitute but one and the same
agreement.
-4-
IN WITNESS WHEREOF, intending to be legally bound, each of the undersigned
has caused this Assignment and Acceptance to be executed on its behalf by its
officer thereunto duly authorized, as of the date first above written.
[ASSIGNOR]
By: ______________________________
Name:
Title:
[ASSIGNEE]
By: ______________________________
Name:
Title:
CONSENTED TO:
FLEET NATIONAL BANK, as Agent
By: _______________________
Name:
Title:
GENRAD, INC.
By: _______________________
Name:
Title:
EXHIBIT G
FORM OF ELECTION TO BECOME A BORROWING SUBSIDIARY
[Date]
Fleet National Bank, as Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: High Technology Division
Ladies and Gentlemen:
Reference is hereby made to that certain Revolving Credit and Term Loan
Agreement, dated as of March 24, 2000 (as the same may be amended and in effect
from time to time, the "Credit Agreement"), by and among GenRad, Inc. (the
"Company"), GenRad Holdings Ltd., GenRad Europe Limited, GenRad Limited, Fleet
National Bank and the other lending institutions party thereto (collectively,
the "Banks"), and Fleet National Bank as agent for itself and the other Banks
(the "Agent"). Capitalized terms which are used herein without definition and
which are defined in the Credit Agreement shall have the same meanings herein as
in the Credit Agreement.
The undersigned, [name of Borrowing Subsidiary], an entity organized
under the laws of Sweden, hereby desires to be a Borrowing Subsidiary for
purposes of (and bound by) the Credit Agreement, effective from the date
hereof. The undersigned hereby represents and warrants to, and covenants and
agrees with, the Agent and the Banks as follows:
(1) the representations and warranties set forth in Section 9 of the
Credit Agreement are true and correct in all material respects as
to the undersigned as of the date hereof, except to the extent of
changes resulting from transactions contemplated or permitted by
the Credit Agreement and the other Loan Documents, and to the extent
that such representations and warranties relate expressly to an
earlier date;
(2) neither the Borrowing Subsidiary nor any of its Subsidiaries is
required by the laws of any jurisdiction to make any deduction or
withholding of any nature whatsoever from any payment to any Bank or
the Agent to be made by the Borrowing Subsidiary or any
-2-
Subsidiary under the Credit Agreement or under any of the other Loan
Documents;
(3) simultaneously with the execution and delivery of this notice of
election to become a Borrowing Subsidiary, the undersigned shall
execute and deliver to the Agent, for each of the Banks, a Term Note
in substantially the form of Exhibit C to the Credit Agreement;
(4) simultaneously with the execution and delivery of this notice of
election to become a Borrowing Subsidiary, the undersigned shall
cause copies of all applicable documents required by
Sections 13.1.1, 13.2-13.7 and 14.7 of the Credit Agreement to be
delivered to the Agent for or with respect to the undersigned, as
if the undersigned were an initial signatory party to the Credit
Agreement as of the Closing Date;
(5) the undersigned hereby agrees to perform all of the obligations of a
Borrower under, and to be bound in all respects by the terms of, the
Credit Agreement applicable to a Borrower party thereto, including
without limitation the absolute and unconditional liability for, and
promise to pay and perform all of the Obligations owing from time to
time to the Banks and the Agent as provided in the Loan Documents;
and
(6) without limitation of the generality of the foregoing, the
undersigned hereby consents to the grant of jurisdiction contained
in Section 22 of the Credit Agreement, as if the undersigned were an
initial signatory party thereto.
The address to which all notices of the undersigned under Section 21 of
the Credit Agreement should be directed is: [address]. This instrument shall
be governed by and construed in accordance with the laws of the Commonwealth
of Massachusetts.
[Borrowing Subsidiary]
By: __________________________________
Title:________________________________
-3-
The undersigned hereby consents to [Borrowing Subsidiary] becoming a
Borrowing Subsidiary and confirms that [name of Borrowing Subsidiary] may hereby
become a Borrowing Subsidiary for purposes of the Credit Agreement described
above.
GENRAD, INC.
By: __________________________________
Title:________________________________
The undersigned hereby consents to [Borrowing Subsidiary] becoming a
Borrowing Subsidiary under the Credit Agreement.
FLEET NATIONAL BANK, as Agent
By: __________________________________
Title:________________________________
Receipt of this election to become a Borrower from [Borrowing Subsidiary]
is hereby acknowledged on and as of the date set forth above, and shall become
effective upon the execution and delivery to the Agent of this notice of
election signed by such Person and by GenRad, Inc., together with the items
specified in paragraphs 3 and 4 above, and the execution and delivery to the
Agent of the foregoing consent of the Agent to [Borrowing Subsidiary] becoming a
Borrowing Subsidiary.
FLEET NATIONAL BANK, as Agent
By: __________________________________
Title:________________________________
SCHEDULE 1
BANKS & COMMITMENTS
---------------------------------------------------------------------------------------------------------------------------
Revolving
Credit Nicolet Term AutoDiagnos
Revolving Loan Nicolet Term Loan AutoDiagnos Term Loan
Credit Loan Commitment Loan Commitment Term Loan Commitment Total
BANKS Commitment Percentage Commitment Percentage Commitment Percentage Commitment
---------------------------------------------------------------------------------------------------------------------------
Fleet National 12.8% $6,400,000 $5,760,000 12.8% $3,840,000 12.8% $16,000,000
Bank., ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------------------------------------------------------------------------------------------------------------------
KeyBank National Association 12.4% $6,200,000 $5,580,000 12.4% $3,720,000 12.4% $15,500,000
---------------------------------------------------------------------------------------------------------------------------
ABN AMRO Bank N.V. 9.4% $4,700,000 $4,230,000 9.4% $2,820,000 9.4% $11,750,000
---------------------------------------------------------------------------------------------------------------------------
Summit Bank 9.4% $4,700,000 $4,230,000 9.4% $2,820,000 9.4% $11,750,000
---------------------------------------------------------------------------------------------------------------------------
Citizens Bank of Massachusetts 8% $4,000,000 $3,600,000 8% $2,400,000 8% $10,000,000
---------------------------------------------------------------------------------------------------------------------------
Bank of Nova Scotia 8% $4,000,000 $3,600,000 8% $2,400,000 8% $10,000,000
---------------------------------------------------------------------------------------------------------------------------
Bank One, N.A. 8% $4,000,000 $3,600,000 8% $2,400,000 8% $10,000,000
---------------------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank 8% $4,000,000 $3,600,000 8% $2,400,000 8% $10,000,000
---------------------------------------------------------------------------------------------------------------------------
Lloyds TSB Bank PLC 8% $4,000,000 $3,600,000 8% $2,400,000 8% $10,000,000
---------------------------------------------------------------------------------------------------------------------------
National City Bank of Kentucky 8% $4,000,000 $3,600,000 8% $2,400,000 8% $10,000,000
---------------------------------------------------------------------------------------------------------------------------
Family Bank, FSB 8% $4,000,000 $3,600,000 8% $2,400,000 8% $10,000,000
---------------------------------------------------------------------------------------------------------------------------
TOTAL 100% $50,000,000 $45,000,000 100% $30,000,000 100% $125,000,000
---------------------------------------------------------------------------------------------------------------------------
SCHEDULE 1A
1. SCI Systems, Inc.
2. Celestica International Inc.
3. Solectron Technology, Inc.
4. Flextronics International LTD
5. Flextronics International USA, Inc.
6. Dovatron Manufacturing
7. SMT Centre Inc.
8. Nokia Networks
9. BMW
10. Bosch
11. Sanmina Corp.
12. Claas
13. Seagate Technology International
14. Benchmark Electronics, Inc.
SCHEDULE 9.3 Title to Properties; Leases
GenRad will be assuming the lessees' obligations under three real property
leases in connection with its acquisition of Sierra and Nicolet. The properties
subject to the assumed leases are located at the following addresses:
1. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇ ▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇, ▇▇;
2. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇; and
3. ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇.
Attached is a description of real property leased by Subsidiaries.
-2-
Company Lease Company Address/ End Annual
(Lessee) (Lessor) Description Date Amount
-------- ------------- ----------- ---- ------
Genrad Ltd Royal London Asset Orion Business 30/03/12 498,824
Management Park, Bird Hall GBP
Lane, Stockport
Genrad Ltd Prudential Property Foundation 30/08/14 518,400
Management Park, Maidenhead GBP
Genrad Europe Ltd Immocar, SCI 6 ▇▇▇ ▇▇▇▇▇▇▇ Van 06/01/06 937,412
(French Branch) Gogh, 93364 FRF
Neuilly
▇▇▇▇▇▇▇▇▇, Cedex,
Paris
Genrad Europe Ltd Vermietungs- und Niederlassung 30/09/03 536,532
(German Branch) Verwaltungsgesellscha Deutschland, Local DEM
ft & Co Customer
Center, ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Genrad Europe Ltd Hannelure und ▇▇▇▇▇▇- ▇▇▇▇▇▇▇-Mobis- 6mths 9,348
(German Branch) ▇▇▇▇▇▇ ▇▇▇▇ Weg 5,22523 notice DEM
Hamburg
Genrad Europe Ltd La Cassa Nazionale di Sede Italiana, Via 28/02/06 47,251,2
(Italy Branch) Previdenza ed Piero, Portaluppi, 11 00 ITL
Assistenza /2 20138 Milano
MI, Italy
Genrad Europe Ltd Schweizerische Drahtzugstrasse 30/09/04 583,824
(Swiss Branch) Ruckversicherungs- 18, CH- CHF
Gesellschaft 8008, Zuerich
SCHEDULE 9.7 - Litigation
The Lemelson Medical, Education, & Research Foundation, L.P. ("Lemelson")
has brought to GenRad's attention a number of patents allegedly owned by
Lemelson. Lemelson has asserted that using bar-code readers and related
machine-vision techniques in circuit-board manufacture would infringe claims of
one or more of these patents, and it is seeking payment for a license. GenRad
does use such readers and some machine-vision inspection in its manufacturing,
and it includes bar-code readers in some of its products. However, it is
GenRad's understanding that no court in any of the many infringement actions
that Lemelson has brought has adopted the position asserted in Lemelson's
contact letter. GenRad also understands that Lemelson has consistently settled
instead of having that position actually tested in court and that other
manufacturers are nonetheless actively seeking to have those patents held
invalid. Although the royalty rates set forth in Lemelson's initial contact
letter are small fractions of a percent, GenRad is reviewing its rights to
indemnification from its bar-code-reader suppliers.
The following matters have been disclosed to GenRad in connection with the
Nicolet Acquisition:
Sierra has received notice from three customers (Adaptec, Inc. (March 4,
1999), SCI Systems, Inc. (April 13, 1999) and Jabil Circuit, Inc.(July 27,
1999)) and Nicolet has received notice from one customer (Group
Technologies Corporation (March 2, 2000)) that each such customer has
purchased equipment from Sierra or Nicolet, or in the case of Jabil, both
Sierra and Nicolet, and has been named, or threatened to be named, as a
defendant in a patent infringement suit with Lemelson Medical, Education &
Research Foundation, Limited Partnership as the plaintiff. Each such
customer has made a request for indemnification from Sierra or Nicolet
with respect to such matters.
Thermo Electron Corporation and its affiliates have received letters,
dated June 10, 1998, September 11, 1998, October 7, 1998, October 26,
1999, January 13, 2000 and February 8, 2000, from counsel to ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Medical, Education & Research Fundation, Limited
Partnership and their affiliates (collectively, "Lemelson") alleging
infringement by Thermo Electron Corporation and its affiliates of patents
held by Lemelson and offering a licensing arrangement to settle the
alleged infringement.
A possible contractual and patent infringement may exist, arising from an
agreement with MediXtec regarding its use of two of Nicolet'
patents. MediXtec and Nicolet came to an agreement on the issue, but
MediXtec has been acquired by Dage which has not responded as to whether
it intends to honor the MediXtec/Nicolet agreement.
SCHEDULE 9.10 - Taxes
GenRad Europe Limited has one outstanding German income tax return. The
return is in the process of being prepared. No tax will be due as the company
had a loss for 1998.
SCHEDULE 9.14 - Certain Transactions
NONE.
SCHEDULE 9.17 - Environmental Compliance
NONE.
SCHEDULE 9.18(a) - Subsidiaries
Co Name Country of Incorporation Office
--------------------------------------------------------
GenRad LTD England & A
Wales
GenRad Europe LTD England & A
Wales
GenRad Holdings LTD England & A
Wales
Mitron Europe LTD England & A
Wales
Mastertech Automotive England & A
LTD Wales
Motor Industry England & A
Services LTD Wales
GenRad France SA France B
GenRad GmbH Germany C
GenRad Benelux BV Netherlands D
GenRad China LTD China E
GenRad Canada LTD Canada E
GenRad Mexico Inc. Delaware E
GenRad Asia Pacific Singapore F
PTE
Genrad Ireland LTD Ireland E
Registered Office A
Orion Business Park
Bird Hall Lane
Stockport
Cheshire
SK3 OXG
England
Registered Office B
▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇
Registered Office C
Adalpero ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Registered Office D
Het ▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
Chief Executive
Office E
Genrad Inc.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇
Registered Office F
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
#▇▇-▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Science
Park
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
SCHEDULE 9.18(b) - Joint Ventures
NONE.
SCHEDULE 11.1 - Indebtedness
BankBoston Credit Line Balance as of 3/1/00 - $ (5,555,000.00)
Intercompany Loans due to GenRad, Inc. (Westford) under revolving credit
agreements with GenRad Limited and GenRad Europe LTD for the amounts of a
maximum credit facility of $15M USD and $ 33M USD, respectively.
The current outstanding amounts on the Revolving Loans are as follows:
GenRad Limited owes to GenRad Inc:
3,501,390.52 GBP @ market value as of March 2, 2000 = 5,519,241.87 USD
GenRad Europe Limited owes to GenRad Inc:
11,303,078.32 GBP @ market value of March 2, 2000 = 17,817,042.36 USD
7,721,888.66 Euro @ market value of March 2, 2000 = 7,451,622.56 USD
150,000 CHF @ market value of March 2, 2000 = 90,165.00 USD
------------------
$25,358,829.92 USD
Indebtedness of UK Subsidiaries:
GenRad LTD Bank Loan with BankBoston, London in Pounds Sterling plus quarterly
interest payment at the current Libor rate plus a reserve asset cost and margin.
Total Loan Outstanding = 3,262,500 GBP @ market value = 5,158,991.25
Mastertech Loan, Barclay's Bank for 90,357 GBP @ market value = 142,881.52
SCHEDULE 11.2 - Existing Liens
See UCC-11 Search Results
SCHEDULE 11.3 - Restrictions on Investments
Sweep Overnight Investment Debit into BankBoston 1784 Fund 1,622,244.05 as
of February 29, 2000.
Securities, Funds Held by Money Markets and other investments currently
held in Brokerage Accounts and managed by the following brokers:
--------------------------------------------------------------------------------
Broker (if Applicable) Address Account number
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▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners One ▇▇▇▇▇▇▇▇▇▇ Street, 781-03222
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Stock BuyBack Program
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▇▇▇▇▇▇▇ ▇▇▇▇▇ - handles 9601 5. ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇-▇▇▇▇▇
the stock transaction on ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
any sale or exercise of
stock by employee
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Equiserve - Holds and ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ N/A
issues certificates of stock 02021
for employees who
purchase or receive stock
options
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STOCK PLEDGE AGREEMENT
This STOCK PLEDGE AGREEMENT is made as of March 24, 2000, by and between
GenRad, Inc., a Massachusetts corporation (the "Company"), and Fleet National
Bank, a national banking association, as agent (hereinafter, in such capacity,
the "Agent") for itself and the other lending institutions (hereinafter,
collectively, the "Banks") which are or may become parties to that certain
Revolving Credit and Term Loan Agreement, dated as of March 24, 2000 (as amended
and in effect from time to time, the "Credit Agreement"), among the Company,
GenRad Holdings Limited ("Holdings"), a corporation organized under the laws of
England and Wales, GenRad Europe Limited ("GenRad Europe"), a corporation
organized under the laws of England and Wales, and GenRad Limited ("GenRad Ltd."
and together with Holdings and GenRad Europe, the "Borrowing Subsidiaries"), a
corporation organized under the laws of England and Wales, the Banks and the
Agent.
WHEREAS, the Company is the direct or indirect legal and beneficial owner
of substantially all of the issued and outstanding shares of each class of the
capital stock of each of the entities described on Annex A (the "Subsidiaries");
and
WHEREAS, it is a condition precedent to the Banks making any loans or
otherwise extending credit to the Company and the Borrowing Subsidiaries under
the Credit Agreement that the Company execute and deliver to the Agent, for the
benefit of the Banks and the Agent, a pledge agreement in substantially the form
hereof; and
WHEREAS, the Company wishes to grant pledges and security interests in
favor of the Agent, for the benefit of the Banks and the Agent, as herein
provided;
NOW, THEREFORE, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Pledge of Stock, etc.
1.1. Pledge of Stock. The Company hereby pledges, assigns, grants a
security interest in, and, except as expressly set forth in the last
sentence of this ss.1.1, delivers to the Agent, for the benefit of the
Banks and the Agent, all of the shares of capital stock of the
Subsidiaries of every class, as more fully described on Annex A hereto, to
be held by the Agent, for the benefit of the Agent and the Banks, subject
to the terms and conditions hereinafter set forth, provided, however, that
notwithstanding anything to the contrary contained in this ss.1.1, the
Company shall, subject to ss.1.2, be required to pledge only sixty five
percent (65%) of the shares of the capital stock of any Foreign Subsidiary
to secure the Company's Obligations under the Credit Agreement, and shall
pledge 100% of the shares of the capital stock of the Foreign Subsidiaries
to secure the European Obligations. Except for the certificates
representing the capital stock of the Subsidiaries set forth on Part II of
Annex A hereto, the certificates for such shares
-2-
accompanied by stock powers or other appropriate instruments of transfer
or assignment thereof duly executed in blank by the Company, have been
delivered to the Agent and, in addition, the Company hereby covenants that
in the event any Subsidiary set forth on Part II of Annex A becomes an
active Subsidiary, or the Agent, in its sole and absolute discretion
reasonably determines that such Subsidiary is a material Subsidiary, the
Company will immediately upon such Subsidiary becoming an active
Subsidiary or upon the Agent's request, as the case may be, deliver to the
Agent the certificates for such shares of such Subsidiary accompanied by
stock powers or other appropriate instruments of transfer or assignment
thereof duly executed in blank by the Company.
1.2. Additional Stock. In case the Company shall acquire any
additional shares of the capital stock of any Subsidiary or corporation
which is the successor of any Subsidiary, or any securities exchangeable
for or convertible into shares of such capital stock of any class of any
Subsidiary, by purchase, stock dividend, stock split or otherwise, then
the Company shall forthwith deliver to and pledge such shares or other
securities to the Agent in the relevant percentages specified in ss.1.1
above, for the benefit of the Banks and the Agent, under this Agreement
and shall deliver to the Agent forthwith any certificates therefor
accompanied by stock powers or other appropriate instruments of transfer
or assignment duly executed by the Company in blank. The Company agrees
that the Agent may from time to time attach as Annex A hereto an updated
list of the shares of capital stock or securities at the time pledged with
the Agent hereunder. In addition, the Company hereby agrees that upon the
occurrence and continuation of an Event of Default under the Credit
Agreement, the Company shall, if so requested by the Agent, forthwith
pledge and deliver to the Agent, for the benefit of the Agent and the
Banks, all shares of the capital stock of any Foreign Subsidiary owned by
the Company and not previously pledged and delivered pursuant to ss.1.1
above, if any, together with stock powers or other instruments of
assignment therefor, duly executed in blank.
1.3. Pledge of Cash Collateral Account. The Company also hereby
pledges, assigns, grants a security interest in, and delivers to the
Agent, for the benefit of the Banks and the Agent, the Cash Collateral
Account and all of the Cash Collateral as such terms are hereinafter
defined.
2. Definitions. The term "Obligations" and all other capitalized terms
used herein without definition shall have the respective meanings provided
therefor in the Credit Agreement. Terms used herein and not defined in the
Credit Agreement or otherwise defined herein that are defined in the Uniform
Commercial Code of The Commonwealth of Massachusetts (the "Massachusetts UCC")
shall have such defined meanings herein, unless the context otherwise indicated
or requires, and the following terms shall have the following meanings:
Cash Collateral. See ss.4.
Cash Collateral Account. See ss.4.
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Stock. Includes the shares of stock described in Annex A attached hereto
and any additional shares of stock at the time pledged with the Agent hereunder.
Stock Collateral. The property at any time pledged to the Agent hereunder
(whether described herein or not) and all income therefrom, increases therein
and proceeds thereof, including without limitation that included in Cash
Collateral, but excluding from the definition of "Stock Collateral" any income,
increases or proceeds received by the Company to the extent expressly permitted
by ss.6.
Time Deposits. See ss.4.
3. Security for Obligations. This Agreement and the security interest in
and pledge of the Stock Collateral hereunder are made with and granted to the
Agent, for the benefit of the Banks and the Agent, as security for the payment
and performance in full of all the Obligations.
4. Liquidation, Recapitalization, etc.
4.1. Distributions Paid to Agent. Any sums or other property paid or
distributed upon or with respect to any of the Stock, whether by dividend
or redemption or upon the liquidation or dissolution of the issuer thereof
or otherwise, shall, except to the limited extent provided in ss.6, be
paid over and delivered to the Agent to be held by the Agent, for the
benefit of the Banks and the Agent, as security for the payment and
performance in full of all of the Obligations. In case, pursuant to the
recapitalization or reclassification of the capital of the issuer thereof
or pursuant to the reorganization thereof, any distribution of capital
shall be made on or in respect of any of the Stock or any property shall
be distributed upon or with respect to any of the Stock, the property so
distributed shall be delivered to the Agent, for the benefit of the Banks
and the Agent, to be held by it as security for the Obligations. Except to
the limited extent provided in ss.6, all sums of money and property paid
or distributed in respect of the Stock, whether as a dividend or upon such
a liquidation, dissolution, recapitalization or reclassification or
otherwise, that are received by the Company shall, until paid or delivered
to the Agent, be held in trust for the Agent, for the benefit of the Banks
and the Agent, as security for the payment and performance in full of all
of the Obligations.
4.2. Cash Collateral Account. All sums of money that are delivered
to the Agent pursuant to this ss.4 shall be deposited into an interest
bearing account with the Agent (the "Cash Collateral Account"). Some or
all of the funds from time to time in the Cash Collateral Account may be
invested in time deposits, including, without limitation, certificates of
deposit issued by the Agent (such certificates of deposit or other time
deposits being hereinafter referred to, collectively, as "Time Deposits"),
that are satisfactory to the Agent after consultation with the Company,
provided, that, in each such case, arrangements satisfactory to the Agent
are made and are in place to perfect and to insure the first priority of
the Agent's security interest therein. Interest earned on the Cash
-4-
Collateral Account and on the Time Deposits, and the principal of the Time
Deposits at maturity that is not invested in new Time Deposits, shall be
deposited in the Cash Collateral Account. The Cash Collateral Account, all
sums from time to time standing to the credit of the Cash Collateral
Account, any and all Time Deposits, any and all instruments or other
writings evidencing Time Deposits and any and all proceeds or any thereof
are hereinafter referred to as the "Cash Collateral."
4.3. Company's Rights to Cash Collateral, etc. Except as otherwise
expressly provided in ss.15, the Company shall have no right to withdraw
sums from the Cash Collateral Account, to receive any of the Cash
Collateral or to require the Agent to part with the Agent's possession of
any instruments or other writings evidencing any Time Deposits.
5. Warranty of Title; Authority. The Company hereby represents and
warrants that: (a) the Company has good and marketable title to, and is the sole
record and beneficial owner of, the Stock described in ss.1, subject to no
pledges, liens, security interests, charges, options, restrictions or other
encumbrances except the pledge and security interest created by this Agreement,
(b) all of the Stock described in ss.1 is validly issued, fully paid and
non-assessable, (c) the Company has full power, authority and legal right to
execute, deliver and perform its obligations under this Agreement and to pledge
and grant a security interest in all of the Stock Collateral pursuant to this
Agreement, and the execution, delivery and performance hereof and the pledge of
and granting of a security interest in the Stock Collateral hereunder have been
duly authorized by all necessary corporate or other action and do not contravene
any law, rule or regulation or any provision of the Company's charter documents
or by-laws or of any judgment, decree or order of any tribunal or of any
agreement or instrument to which the Company is a party or by which it or any of
its property is bound or affected or constitute a default thereunder, and (d)
the information set forth in Annex A hereto relating to the Stock is true,
correct and complete in all respects. The Company covenants that it will defend
the rights of the Banks and the Agent and security interest of the Agent, for
the benefit of the Banks and the Agent, in such Stock against the claims and
demands of all other persons whomsoever. The Company further covenants that it
will have the like title to and right to pledge and grant a security interest in
the Stock Collateral hereafter pledged or in which a security interest is
granted to the Agent hereunder and will likewise defend the rights, pledge and
security interest thereof and therein of the Banks and the Agent.
6. Dividends, Voting, etc., Prior to Maturity. So long as no Event of
Default shall have occurred and be continuing, the Company shall be entitled to
receive all cash dividends paid in respect of the Stock, to vote the Stock and
to give consents, waivers and ratifications in respect of the Stock; provided,
however, that no vote shall be cast or consent, waiver or ratification given by
the Company if the effect thereof would in the reasonable judgment of the Agent
impair any of the Stock Collateral or be inconsistent with or result in any
violation of any of the provisions of the Credit Agreement, the Notes or any of
the other Loan Documents. All such rights of the Company to receive cash
dividends shall cease in case an Event of Default shall have occurred and be
-5-
continuing. All such rights of the Company to vote and give consents, waivers
and ratifications with respect to the Stock shall, at the Agent's option, as
evidenced by the Agent's notifying the Company of such election, cease in case
an Event of Default shall have occurred and be continuing.
7. Remedies.
7.1. In General. If an Event of Default shall have occurred and be
continuing, the Agent shall thereafter have the following rights and
remedies (to the extent permitted by applicable law) in addition to the
rights and remedies of a secured party under the Massachusetts UCC, all
such rights and remedies being cumulative, not exclusive, and enforceable
alternatively, successively or concurrently, at such time or times as the
Agent deems expedient:
(a) if the Agent so elects and gives notice of such election
to the Company, the Agent may vote any or all shares of the Stock
(whether or not the same shall have been transferred into its name
or the name of its nominee or nominees) for any lawful purpose,
including, without limitation, if the Agent so elects, for the
liquidation of the assets of the issuer thereof, and give all
consents, waivers and ratifications in respect of the Stock and
otherwise act with respect thereto as though it were the outright
owner thereof (the Company hereby irrevocably constituting and
appointing the Agent the proxy and attorney-in-fact of the Company,
with full power of substitution, to do so);
(b) the Agent may demand, ▇▇▇ for, collect or make any
compromise or settlement the Agent deems suitable in respect of any
Stock Collateral;
(c) the Agent may sell, resell, assign and deliver, or
otherwise dispose of any or all of the Stock Collateral, for cash or
credit or both and upon such terms at such place or places, at such
time or times and to such entities or other persons as the Agent
thinks expedient, all without demand for performance by the Company
or any notice or advertisement whatsoever except as expressly
provided herein or as may otherwise be required by law;
(d) the Agent may cause all or any part of the Stock held by
it to be transferred into its name or the name of its nominee or
nominees; and
(e) the Agent may set off against the Obligations any and all
sums deposited with it or held by it, including without limitation,
any sums standing to the credit of the Cash Collateral Account and
any Time Deposits issued by the Agent.
-6-
7.2. Sale of Stock Collateral. In the event of any disposition of
the Stock Collateral as provided in clause (c) of ss.7.1, the Agent shall
give to the Company at least ten (10) Business Days prior written notice
of the time and place of any public sale of the Stock Collateral or of the
time after which any private sale or any other intended disposition is to
be made. The Company hereby acknowledges that ten (10) Business Days prior
written notice of such sale or sales shall be reasonable notice. The Agent
may enforce its rights hereunder without any other notice and without
compliance with any other condition precedent now or hereunder imposed by
statute, rule of law or otherwise (all of which are hereby expressly
waived by the Company, to the fullest extent permitted by law). The Agent
or any Bank may buy any part or all of the Stock Collateral for cash at
any public sale and if any part or all of the Stock Collateral is of a
type customarily sold in a recognized market or is of the type which is
the subject of widely-distributed standard price quotations, the Agent may
buy at private sale and may make payments thereof by any means. The Agent
may apply the cash proceeds actually received from any sale or other
disposition to the reasonable expenses of retaking, holding, preparing for
sale, selling and the like, to reasonable attorneys' fees, travel and all
other reasonable expenses which may be incurred by the Agent in attempting
to collect the Obligations or to enforce this Agreement or in the
prosecution or defense of any action or proceeding related to the subject
matter of this Agreement, and then to the Obligations pursuant to ss.15.4
of the Credit Agreement. Only after such applications, and after payment
by the Agent of any amount required by ss.9-504(1)(c) of the Massachusetts
UCC, need the Agent account to the Company for any surplus. To the extent
that any of the Obligations are to be paid or performed by a person other
than the Company, the Company waives and agrees not to assert any rights
or privileges which it may have under ss.9-112 of the Massachusetts UCC.
7.3. Registration of Stock. If the Agent shall determine to exercise
its right to sell any or all of the Stock pursuant to this ss.7, and if in
the opinion of counsel for the Agent it is necessary, or if in the
reasonable opinion of the Agent it is advisable, to have the Stock, or
that portion thereof to be sold, registered under the provisions of the
Securities Act of 1933, as amended (the "Securities Act"), the Company
agrees to use its best efforts to cause the issuer or issuers of the Stock
contemplated to be sold, to execute and deliver, and cause the directors
and officers of such issuer to execute and deliver, all at the Company's
expense, all such instruments and documents, and to do or cause to be done
all such other acts and things as may be necessary or, in the reasonable
opinion of the Agent, advisable to register such Stock under the
provisions of the Securities Act and to cause the registration statement
relating thereto to become effective and to remain effective for a period
of nine (9) months from the date such registration statement became
effective, and to make all amendments thereto or to the related prospectus
or both that, in the reasonable opinion of the Agent, are necessary or
advisable, all in conformity with the requirements of the Securities Act
and the rules and regulations of the Securities and Exchange Commission
applicable
-7-
thereto. The Company agrees to use its best efforts to cause such issuer
or issuers to comply with the provisions of the securities or "Blue Sky"
laws of any jurisdiction which the Agent shall reasonably designate and to
cause such issuer or issuers to make available to its security holders, as
soon as practicable, an earnings statement (which need not be audited)
which will satisfy the provisions of Section 11(a) of the Securities Act.
7.4. Private Sales. The Company recognizes that the Agent may be
unable to effect a public sale of the Stock by reason of certain
prohibitions contained in the Securities Act, federal banking laws, and
other applicable laws, but may be compelled to resort to one or more
private sales thereof to a restricted group of purchasers. The Company
agrees that any such private sales may be at prices and other terms less
favorable to the seller than if sold at public sales and that such private
sales shall not by reason thereof be deemed not to have been made in a
commercially reasonable manner. The Agent shall be under no obligation to
delay a sale of any of the Stock for the period of time necessary to
permit the issuer of such securities to register such securities for
public sale under the Securities Act, or such other federal banking or
other applicable laws, even if the issuer would agree to do so. Subject to
the foregoing, the Agent agrees that any sale of the Stock shall be made
in a commercially reasonable manner, and the Company agrees to use its
best efforts to cause the issuer or issuers of the Stock contemplated to
be sold, to execute and deliver, and cause the directors and officers of
such issuer to execute and deliver, all at the Company's expense, all such
instruments and documents, and to do or cause to be done all such other
acts and things as may be necessary or, in the reasonable opinion of the
Agent, advisable to exempt such Stock from registration under the
provisions of the Securities Act, and to make all amendments to such
instruments and documents which, in the opinion of the Agent, are
necessary or advisable, all in conformity with the requirements of the
Securities Act and the rules and regulations of the Securities and
Exchange Commission applicable thereto. The Company further agrees to use
its best efforts to cause such issuer or issuers to comply with the
provisions of the securities or "Blue Sky" laws of any jurisdiction which
the Agent shall reasonably designate and, if required, to cause such
issuer or issuers to make available to its security holders, as soon as
practicable, an earnings statement (which need not be audited) which will
satisfy the provisions of Section 11(a) of the Securities Act.
7.5. Company's Agreements, etc. The Company further agrees to do or
cause to be done all such other acts and things as may be reasonably
necessary to make any sales of any portion or all of the Stock pursuant to
this ss.7 valid and binding and in compliance with any and all applicable
laws (including, without limitation, the Securities Act, the Securities
Exchange Act of 1934, as amended, the rules and regulations of the
Securities and Exchange Commission applicable thereto and all applicable
state securities or "Blue Sky" laws), regulations, orders, writs,
injunctions, decrees or awards of any and all courts, arbitrators or
governmental instrumentalities, domestic or foreign, having jurisdiction
over
-8-
any such sale or sales, all at the Company's expense. The Company further
agrees that a breach of any of the covenants contained in this ss.7 will
cause irreparable injury to the Agent and the Banks, that the Agent and
the Banks have no adequate remedy at law in respect of such breach and, as
a consequence, agrees that each and every covenant contained in this ss.7
shall be specifically enforceable against the Company by the Agent and the
Company hereby waives and agrees not to assert any defenses against an
action for specific performance of such covenants.
8. Marshalling. Neither the Agent nor any Bank shall be required to
marshal any present or future collateral security for (including but not limited
to this Agreement and the Stock Collateral), or other assurances of payment of,
the Obligations or any of them, or to resort to such collateral security or
other assurances of payment in any particular order. All of the Agent's rights
hereunder and of the Banks and the Agent in respect of such collateral security
and other assurances of payment shall be cumulative and in addition to all other
rights, however existing or arising. To the extent that it lawfully may, the
Company hereby agrees that it will not invoke any law relating to the
marshalling of collateral that might cause delay in or impede the enforcement of
the Agent's rights under this Agreement or under any other instrument evidencing
any of the Obligations or under which any of the Obligations is outstanding or
by which any of the Obligations is secured or payment thereof is otherwise
assured, and to the extent that it lawfully may the Company hereby irrevocably
waives the benefits of all such laws.
9. Company's Obligations Not Affected. The obligations of the Company
hereunder shall remain in full force and effect without regard to, and shall not
be impaired by (a) any exercise or nonexercise, or any waiver, by the Agent or
any Bank of any right, remedy, power or privilege under or in respect of any of
the Obligations or any security thereof (including this Agreement); (b) any
amendment to or modification of the Credit Agreement, the Note, the other Loan
Documents or any of the Obligations; (c) any amendment to or modification of any
instrument (other than this Agreement) securing any of the Obligations,
including, without limitation, any of the Security Documents; or (d) the taking
of additional security for, or any other assurances of payment of, any of the
Obligations or the release or discharge or termination of any security or other
assurances of payment or performance for any of the Obligations; whether or not
the Company shall have notice or knowledge of any of the foregoing.
10. Transfer, etc., by Company. Without the prior written consent of the
Agent, the Company will not sell, assign, transfer or otherwise dispose of,
grant any option with respect to, or pledge or grant any security interest in or
otherwise encumber or restrict any of the Stock Collateral or any interest
therein, except for the pledge thereof and security interest therein provided
for in this Agreement.
11. Further Assurances. The Company will do all such acts, and will
furnish to the Agent all such financing statements, certificates, legal opinions
and other documents and will obtain all such governmental consents and corporate
approvals and will do or cause to be done all such other things as the Agent may
reasonably request from time to
-9-
time in order to give full effect to this Agreement and to secure the rights of
the Banks and the Agent hereunder, all without any cost or expense to the Agent
or any Bank. If the Agent so elects, a photocopy of this Agreement may at any
time and from time to time be filed by the Agent as a financing statement in any
recording office in any jurisdiction.
12. Agent's Exoneration. Under no circumstances shall the Agent be deemed
to assume any responsibility for or obligation or duty with respect to any part
or all of the Stock Collateral of any nature or kind or any matter or
proceedings arising out of or relating thereto, other than (a) to exercise
reasonable care in the physical custody of the Stock Collateral and (b) after a
Default or an Event of Default shall have occurred and be continuing to act in a
commercially reasonable manner. Neither the Agent nor any Bank shall be required
to take any action of any kind to collect, preserve or protect its or the
Company's rights in the Stock Collateral or against other parties thereto. The
Agent's prior recourse to any part or all of the Stock Collateral shall not
constitute a condition of any demand, suit or proceeding for payment or
collection of any of the Obligations.
13. No Waiver, etc. Neither this Agreement nor any term hereof may be
changed, waived, discharged or terminated except by a written instrument
expressly referring to this Agreement and to the provisions so modified or
limited, and executed by the Agent, with the consent of the Majority Banks, and
the Company. No act, failure or delay by the Agent shall constitute a waiver of
its rights and remedies hereunder or otherwise. No single or partial waiver by
the Agent of any default or right or remedy that it may have shall operate as a
waiver of any other default, right or remedy or of the same default, right or
remedy on a future occasion. The Company hereby waives presentment, notice of
dishonor and protest of all instruments, included in or evidencing any of the
Obligations or the Stock Collateral, and any and all other notices and demands
whatsoever (except as expressly provided herein or in the Credit Agreement).
14. Notice, etc. All notices, requests and other communications hereunder
shall be made in the manner set forth in ss.21 of the Credit Agreement.
15. Termination. Upon final payment and performance in full of the
Obligations, this Agreement shall terminate and the Agent shall, at the
Company's request and expense, return such Stock Collateral in the possession or
control of the Agent as has not theretofore been disposed of pursuant to the
provisions hereof, together with any moneys and other property at the time held
by the Agent hereunder.
16. Overdue Amounts. Until paid, all amounts due and payable by the
Company hereunder shall be a debt secured by the Stock Collateral and shall
bear, whether before or after judgment, interest at the rate of interest for
overdue principal set forth in the Credit Agreement.
17. Governing Law; Consent to Jurisdiction. THIS AGREEMENT IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The Company
agrees that any suit for the
-10-
enforcement of this Agreement may be brought in the courts of The Commonwealth
of Massachusetts or any federal court sitting therein and consents to the
non-exclusive jurisdiction of such court and to service of process in any such
suit being made upon the Company by mail at the address specified in ss.21 of
the Credit Agreement. The Company hereby waives any objection that it may now or
hereafter have to the venue of any such suit or any such court or that such suit
is brought in an inconvenient court.
18. Waiver of Jury Trial. THE COMPANY WAIVES ITS RIGHT TO A JURY TRIAL
WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF
ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, the Company waives
any right which it may have to claim or recover in any litigation referred to in
the preceding sentence any special, exemplary, punitive or consequential damages
or any damages other than, or in addition to, actual damages. The Company (a)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or any Bank has represented, expressly or otherwise, that
the Agent or any Bank would not, in the event of litigation, seek to enforce the
foregoing waivers and (b) acknowledges that, in entering into the Credit
Agreement and the other Loan Documents to which the Agent is a party, the Agent
and the Banks are relying upon, among other things, the waivers and
certifications contained in this ss.18.
19. Miscellaneous. The headings of each section of this Agreement are for
convenience only and shall not define or limit the provisions thereof. This
Agreement and all rights and obligations hereunder shall be binding upon the
Company and its respective successors and assigns, and shall inure to the
benefit of the Agent and the Banks and their respective successors and assigns.
If any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall be in no way
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein. The
Company acknowledges receipt of a copy of this Agreement.
IN WITNESS WHEREOF, intending to be legally bound, the Company and the
Agent have caused this Stock Pledge Agreement to be executed as of the date
first above written.
GENRAD, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name:
Title:
FLEET NATIONAL BANK, as Agent
By:
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Vice President
IN WITNESS WHEREOF, intending to be legally bound, the Company and the
Agent have caused this Stock Pledge Agreement to be executed as of the date
first above written.
GENRAD, INC.
By:
--------------------------------------
Name:
Title:
FLEET NATIONAL BANK, as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Vice President
The undersigned Subsidiaries hereby join in the above Agreement for the
sole purpose of consenting to and being bound by the provisions of ss.ss.4.1, 6
and 7 thereof, the undersigned hereby agreeing to cooperate fully and in good
faith with the Agent and the Company in carrying out such provisions.
GENRAD HOLDINGS, LTD.
TAVSTOCK LIMITED
MASTERTECH LTD.
GENRAD MEXICO, INC.
GENRAD CANADA, LTD.
GENRAD FRANCE, S.A.
GENRAD BENELUX BV
GENRAD GmbH
GENRAD ASIA PTE LTD
GENRAD CHINA LTD.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name:
Title:
ANNEX A TO PLEDGE AGREEMENT
None of the issuers has any authorized, issued or outstanding shares of
its capital stock of any class or any commitments to issue any shares of its
capital stock of any class or any securities convertible into or exchangeable
for any shares of its capital stock of any class except as otherwise stated in
this Annex A.
PART I
----------------------------------------------------------------------------------------------------------------------------
Number of Number of Number of Par or
Record Class of Authorized Issued Outstanding Liquidation
Issuer Owner Shares Shares Shares Shares Value
----------------------------------------------------------------------------------------------------------------------------
GenRad Mexico, Inc. GenRad, Inc. common 1,000 100 100 $.01
----------------------------------------------------------------------------------------------------------------------------
GenRad Canada, Ltd. GenRad, Inc. common 30,000 30,000 30,000 no par
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GenRad Holdings, Ltd. GenRad, Inc. ordinary 7,315,441 6,884,256 6,884,256 (pound)1.00
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Mastertech Automotive Limited GenRad, Inc. ordinary 50,000 100 100 (pound).02
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GenRad Asia PTE Ltd. GenRad, Inc. ordinary 100,000 2 2 S$1.00
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GenRad (China) Ltd.(1) GenRad, Inc. ordinary 10,000 10,000 10,000 HK$1.00
----------------------------------------------------------------------------------------------------------------------------
Tavstock Limited(2) GenRad, Inc. ordinary 100,000 100 100 IR(pound)1.00
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GenRad Limited GenRad Holdings Ltd. ordinary 50,000 50,000 50,000 (pound)1.00
----------------------------------------------------------------------------------------------------------------------------
GenRad Europe Limited GenRad Holdings Ltd. ordinary 2,050,000 2,000,100 2,000,100 (pound)1.00
----------------------------------------------------------------------------------------------------------------------------
[ILLEGIBLE] Europe Limited GenRad Holdings Ltd. ordinary 1,000,000 347,752 347,752 (pound)1.00
----------------------------------------------------------------------------------------------------------------------------
Motor Industry Services Limited Mastertech Automotive ordinary 1,000 1 1 (pound)1.00
Limited
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PART II
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Number of Number of Number of Par or
Record Class of Authorized Issued Outstanding Liquidation
Issuer Owner Shares Shares Shares Shares Value
----------------------------------------------------------------------------------------------------------------------------
GenRad GmbH
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GenRad Benelux BV
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GenRad France, S.A.
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(1) Two shares issued to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and held by him for the benefit of
GenRad, Inc.
(2) One share issued to ▇▇▇▇ ▇▇▇▇▇ and held by him for the benefit of GenRad,
Inc.
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of March 24, 2000, between GenRad, Inc., a
Massachusetts corporation (the "Company"), and Fleet National Bank, a
national banking association, as agent (hereinafter, in such capacity, the
"Agent") for itself and the other lending institutions (hereinafter,
collectively, the "Banks") which are or may become parties to that certain
Revolving Credit and Term Loan Agreement, dated as of March 24, 2000 (as
amended and in effect from time to time, the "Credit Agreement"), among the
Company, GenRad Holdings Limited ("Holdings"), a corporation organized under
the laws of England and Wales, GenRad Europe Limited ("GenRad Europe"), a
corporation organized under the laws of England and Wales, and GenRad Limited
("GenRad Ltd." and together with the Holdings and GenRad Europe, the
"Borrowing Subsidiaries"), a corporation organized under the laws of England
and Wales, the Banks and the Agent.
WHEREAS, it is a condition precedent to the Banks making any loans or
otherwise extending credit to the Company and the Borrowing Subsidiaries under
the Credit Agreement that the Company execute and deliver to the Agent, for the
benefit of the Banks and the Agent, a security agreement in substantially the
form hereof; and
WHEREAS, the Company wishes to grant security interests in favor of the
Agent, for the benefit of the Banks and the Agent, as herein provided;
NOW, THEREFORE, in consideration of the promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms used herein without definitions
shall have the respective meanings provided therefor in the Credit Agreement.
All terms defined in the Uniform Commercial Code of the Commonwealth of
Massachusetts and used herein shall have the same definitions herein as
specified therein; provided, however, that the term "instrument" shall be such
term as defined in Article 9 of the Uniform Commercial Code of such jurisdiction
rather than Article 3.
2. Grant of Security Interest.
2.1. Collateral Granted. The Company hereby grants to the Agent, for
the benefit of the Banks and the Agent, to secure the payment and
performance in full of all of the Obligations, a security interest in and
so pledges and assigns to the Agent, for the benefit of the Banks and the
Agent, the following properties, assets and rights of the Company,
wherever located, whether now owned or hereafter acquired or arising, and
all proceeds and products thereof (all of the same being hereinafter
called the "Collateral"):
All personal and fixture property of every kind and nature
including without limitation all furniture, fixtures, equipment, raw
materials, inventory, other goods, accounts, contract rights, rights
to the
-2-
payment of money, insurance refund claims and all other insurance
claims and proceeds, tort claims, chattel paper, documents,
instruments, securities and other investment property, deposit
accounts, rights to proceeds of letters of credit and all general
intangibles including, without limitation, all tax refund claims,
license fees, patents, patent applications, trademarks, trademark
applications, trade names, copyrights, copyright applications,
rights to ▇▇▇ and recover for past infringement of patents,
trademarks and copyrights, computer programs, computer software,
engineering drawings, service marks, customer lists, goodwill, and
all licenses, permits, agreements of any kind or nature pursuant to
which the Company possesses, uses or has authority to possess or use
property (whether tangible or intangible) of others or others
possess, use or have authority to possess or use property (whether
tangible or intangible) of the Company, and all recorded data of any
kind or nature, regardless of the medium of recording including,
without limitation, all software, writings, plans, specifications
and schematics.
2.2. Delivery of Instruments, etc.
(a) Pursuant to the terms hereof, the Company has endorsed,
assigned and delivered to the Agent all negotiable or non-negotiable
instruments, certificated securities and chattel paper pledged by it
hereunder, together with instruments of transfer or assignment duly
executed in blank as the Agent may have specified. In the event that
the Company shall, after the date of this Agreement, acquire any
other negotiable or non-negotiable instruments, certificated
securities or chattel paper to be pledged by it hereunder, the
Company shall forthwith endorse, assign and deliver the same to the
Agent, accompanied by such instruments of transfer or assignment
duly executed in blank as the Agent may from time to time specify.
(b) To the extent that any securities now or hereafter
acquired by the Company are uncertificated and are issued to the
Company or its nominee directly by the issuer thereof, the Company
shall cause the issuer to note on its books the security interest of
the Agent in such securities and shall cause the issuer, pursuant to
an agreement in form and substance satisfactory to the Agent, to
agree to comply with instructions from the Agent as to such
securities, without further consent of the Company or such nominee.
To the extent that any securities, whether certificated or
uncertificated, or other investment property now or hereafter
acquired by the Company are held by the Company or its nominee
through a securities intermediary or commodity intermediary, the
Company shall, at the request of the Agent, cause such securities
intermediary, or (as the case may be) commodity intermediary,
pursuant to an agreement in form and substance satisfactory to the
Agent, to agree to comply with entitlement orders or other
instructions from the Agent as to such securities or other
investment property, or (as the case may be) to
-3-
apply any value distributed on account of any commodity contract as
directed by the Agent to such commodity intermediary, without
further consent of the Company or such nominee.
(c) To the extent that the Company is a beneficiary under any
written letter of credit now or hereafter issued in favor of the
Company, the Company shall deliver such letter of credit to the
Agent. The Agent shall from time to time, at the request and expense
of the Company, make such arrangements with the Company as are in
the Agent's reasonable judgment necessary and appropriate so that
the Company may make any drawing to which the Company is entitled
under such letter of credit, without impairment of the Agent's
perfected security interest in the Company's rights to proceeds of
such letter of credit or in the actual proceeds of such drawing. At
the Agent's request, the Company shall, for any letter of credit,
whether or not written, now or hereafter issued in favor of the
Company as beneficiary, execute and deliver to the issuer and any
confirmer of such letter of credit an assignment of proceeds form,
in favor of the Agent and satisfactory to the Agent and such issuer
or (as the case may be) such confirmer, requiring the proceeds of
any drawing under such letter of credit to be paid directly to the
Agent for application as provided in the Credit Agreement.
2.3. Excluded Collateral. Notwithstanding the foregoing provisions
of this ss.2, such grant of security interest shall not extend to, and the
term "Collateral" shall not include, any chattel paper and general
intangibles which are now or hereafter held by the Company as licensee,
lessee or otherwise, to the extent that (a) such chattel paper and general
intangibles are not assignable or capable of being encumbered as a matter
of law or under the terms of the license, lease or other agreement
applicable thereto (but solely to the extent that any such restriction
shall be enforceable under applicable law), without the consent of the
licensor or lessor thereof or other applicable party thereto and (b) such
consent has not been obtained; provided, however, that the foregoing grant
of security interest shall extend to, and the term "Collateral" shall
include, (i) any and all proceeds of such chattel paper and general
intangibles to the extent that the assignment or encumbering of such
proceeds is not so restricted and (ii) upon any such licensor, lessor or
other applicable party consent with respect to any such otherwise excluded
chattel paper or general intangibles being obtained, thereafter such
chattel paper or general intangibles as well as any and all proceeds
thereof that might have theretofore have been excluded from such grant of
a security interest and the term "Collateral".
2.4. Stock Pledge Agreement. Concurrently herewith the Company is
executing and delivering to the Agent, for the benefit of the Banks and
the Agent, the Stock Pledge Agreements pursuant to which the Company is
pledging to the Agent, for the benefit of the Banks and the Agent certain
shares of the capital stock of its Subsidiaries. Such pledges shall be
governed by the terms of such Stock Pledge Agreements and not by the terms
of this Agreement.
-4-
2.5. Patent and Trademark Assignments. Concurrently herewith the
Company is also executing and delivering to the Agent, for the benefit of
the Banks and the Agent, the Patent Assignment and the Trademark
Assignment pursuant to which the Company is assigning to the Agent, for
the benefit of the Banks and the Agent, certain Collateral consisting of
patents and patent rights and trademarks, service marks and trademark and
service ▇▇▇▇ rights, together with the goodwill appurtenant thereto. The
provisions of the Patent Assignment and the Trademark Assignment are
supplemental to the provisions of this Agreement, and nothing contained in
the Patent Assignment or the Trademark Assignment shall derogate from any
of the rights or remedies of the Agent or any of the Banks hereunder. Nor
shall anything contained in the Patent Assignment or the Trademark
Assignment be deemed to prevent or extend the time of attachment or
perfection of any security interest in such Collateral created hereby.
3. Title to Collateral, etc. The Company is the owner of the Collateral
free from any adverse lien, security interest or other encumbrance, except for
the security interest created by this Agreement and other liens permitted by the
Credit Agreement. None of the Collateral constitutes, or is the proceeds of,
"farm products" as defined in ss.9-109(3) of the Uniform Commercial Code of the
Commonwealth of Massachusetts. Except as set forth on Schedule 3 hereto, none of
the account debtors in respect of any accounts, chattel paper or general
intangibles and none of the obligors in respect of any instruments included in
the Collateral is a governmental authority subject to the Federal Assignment of
Claims Act.
4. Continuous Perfection. The Company's place of business or, if more than
one, chief executive office is indicated on the Perfection Certificate delivered
to the Agent herewith (the "Perfection Certificate"). The Company will not
change the same, or the name, identity or corporate structure of the Company in
any manner, without providing at least thirty (30) days prior written notice to
the Agent. The Collateral, to the extent not delivered to the Agent pursuant to
ss.2.2, will be kept at those locations listed on the Perfection Certificate and
the Company will not remove the Collateral from such locations (except in the
ordinary course of business consistent with past practices), without providing
at least 30 days prior written notice to the Agent.
5. No Liens. Except for the security interest herein granted and liens
permitted by the Credit Agreement, the Company shall be the owner of the
Collateral free from any lien, security interest or other encumbrance, and the
Company shall defend the same against all claims and demands of all persons at
any time claiming the same or any interests therein adverse to the Agent or any
of the Banks. The Company shall not pledge, mortgage or create, or suffer to
exist a security interest in the Collateral in favor of any person other than
the Agent, for the benefit of the Banks and the Agent, except for liens
permitted by the Credit Agreement.
6. No Transfers. The Company will not sell or offer to sell or otherwise
transfer the Collateral or any interest therein except as expressly permitted by
ss.11.5.2 of the Credit Agreement.
-5-
7. Insurance.
7.1. Maintenance of Insurance. The Company will maintain with
financially sound and reputable insurers insurance with respect to its
properties and business against such casualties and contingencies as shall
be in accordance with general practices of businesses engaged in similar
activities in similar geographic areas. Such insurance shall be in such
minimum amounts that the Company will not be deemed a co-insurer under
applicable insurance laws, regulations and policies and otherwise shall be
in such amounts, contain such terms, be in such forms and be for such
periods as may be reasonably satisfactory to the Agent. In addition, all
such insurance shall be payable to the Agent as loss payee under a
"standard" or "New York" loss payee clause for the benefit of the Banks
and the Agent. Without limiting the foregoing, the Company will (a) keep
all of its physical property insured with casualty or physical hazard
insurance on an "all risks" basis, with broad form flood and earthquake
coverages and electronic data processing coverage, with a full replacement
cost endorsement and an "agreed amount" clause in an amount equal to 100%
of the full replacement cost of such property, (b) maintain all such
workers' compensation or similar insurance as may be required by law and
(c) maintain, in amounts and with deductibles equal to those generally
maintained by businesses engaged in similar activities in similar
geographic areas, general public liability insurance against claims of
bodily injury, death or property damage occurring, on, in or about the
properties of the Company; business interruption insurance; and product
liability insurance.
7.2. Insurance Proceeds. The proceeds of any casualty insurance in
respect of any casualty loss of any of the Collateral shall, subject to
the rights, if any, of other parties with a prior interest in the property
covered thereby, so long as no Default or Event of Default has occurred
and is continuing, be disbursed to the Company for direct application by
the Company solely to the repair or replacement of the Company's property
so damaged or destroyed; provided, however, that cash proceeds in excess
of $250,000 in the aggregate received from claims on insurance by the
Company which have not been committed (as evidenced by a binding written
contract) by the Company within 180 days of receipt of such proceeds to
the repair or replacement of the property so damaged or destroyed, or, if
so committed, such repair or replacement of the property so damaged or
destroyed shall have not commenced within 270 days of receipt of such
proceeds pursuant to such binding written contract, shall be paid to the
Agent for application pursuant to ss.4.4 of the Credit Agreement.
7.3. Notice of Cancellation, etc. All policies of insurance shall
provide for at least thirty (30) days prior written cancellation notice to
the Agent. In the event of failure by the Company to provide and maintain
insurance as herein provided, the Agent may, at its option, provide such
insurance and charge the amount thereof to the Company. To the extent the
Agent decides to provide such insurance the Agent will notify the Borrower
of such election, but any failure by the Agent to give such notice shall
not in any way impair any of its
-6-
rights hereunder. The Company shall furnish the Agent with certificates of
insurance and policies evidencing compliance with the foregoing insurance
provision.
8. Maintenance of Collateral; Compliance with Law. The Company will keep
the Collateral in good order and repair, ordinary wear and tear excepted, and
will not use the same in violation of law or any policy of insurance thereon.
The Agent, or its designee, may upon prior written notice to the Company inspect
the Collateral at any reasonable time, wherever located; provided, however, that
such notice shall not be required if a Default or Event of Default shall have
occurred and be continuing. The Company will pay promptly when due all taxes,
assessments, governmental charges and levies upon the Collateral or incurred in
connection with the use or operation of such Collateral or incurred in
connection with this Agreement. The Company has at all times operated, and the
Company will continue to operate, its business in compliance with all applicable
provisions of the federal Fair Labor Standards Act, as amended, and with all
applicable provisions of federal, state and local statutes and ordinances
dealing with the control, shipment, storage or disposal of hazardous materials
or substances.
9. Collateral Protection Expenses; Preservation of Collateral.
9.1. Expenses Incurred by Agent. In its discretion, the Agent may
discharge taxes and other encumbrances at any time levied or placed on any
of the Collateral, make repairs thereto and pay any necessary filing fees.
The Company agrees to reimburse the Agent on demand for any and all
expenditures so made. The Agent shall have no obligation to the Company to
make any such expenditures, nor shall the making thereof relieve the
Company of any default.
9.2. Agent's Obligations and Duties. Anything herein to the contrary
notwithstanding, the Company shall remain liable under each contract or
agreement comprised in the Collateral to be observed or performed by the
Company thereunder. Neither the Agent nor any Bank shall have any
obligation or liability under any such contract or agreement by reason of
or arising out of this Agreement or the receipt by the Agent or any Bank
of any payment relating to any of the Collateral, nor shall the Agent or
any Bank be obligated in any manner to perform any of the obligations of
the Company under or pursuant to any such contract or agreement, to make
inquiry as to the nature or sufficiency of any payment received by the
Agent or any Bank in respect of the Collateral or as to the sufficiency of
any performance by any party under any such contract or agreement, to
present or file any claim, to take any action to enforce any performance
or to collect the payment of any amounts which may have been assigned to
the Agent or to which the Agent or any Bank may be entitled at any time or
times. The Agent's sole duty with respect to the custody, safe keeping and
physical preservation of the Collateral in its possession, under ss.9-207
of the Uniform Commercial Code of the Commonwealth of Massachusetts or
otherwise, shall be to deal with such Collateral in the same manner as the
Agent deals with similar property for its own account.
-7-
10. Securities and Deposits. The Agent may at any time after the
occurrence and during the continuance of an Event of Default, at its option,
transfer to itself or any nominee any securities constituting Collateral,
receive any income thereon and hold such income as additional Collateral or
apply it to the Obligations. After the occurrence and during the continuance of
an Event of Default, whether or not any Obligations are due, the Agent may
demand, ▇▇▇ for, collect, or make any settlement or compromise which it deems
desirable with respect to the Collateral. Regardless of the adequacy of
Collateral or any other security for the Obligations, any deposits or other sums
at any time credited by or due from the Agent or any Bank to the Company may at
any time be applied to or set off against any of the Obligations.
11. Notification to Account Debtors and Other Obligors. If an Event of
Default shall have occurred and be continuing, the Company shall, at the request
of the Agent, notify account debtors on accounts, chattel paper and general
intangibles of the Company and obligors on instruments for which the Company is
an obligee of the security interest of the Agent in any account, chattel paper,
general intangible or instrument and that payment thereof is to be made directly
to the Agent or to any financial institution designated by the Agent as the
Agent's agent therefor, and the Agent may itself, if an Event of Default shall
have occurred and be continuing, without notice to or demand upon the Company,
so notify account debtors and obligors. After the making of such a request or
the giving of any such notification, the Company shall hold any proceeds of
collection of accounts, chattel paper, general intangibles and instruments
received by the Company as trustee for the Agent, for the benefit of the Banks
and the Agent, without commingling the same with other funds of the Company and
shall turn the same over to the Agent in the identical form received, together
with any necessary endorsements or assignments. The Agent shall apply the
proceeds of collection of accounts, chattel paper, general intangibles and
instruments received by the Agent to the Obligations, such proceeds to be
immediately entered after final payment in cash or solvent credits of the items
giving rise to them.
12. Further Assurances. The Company, at its own expense, shall do, make,
execute and deliver all such additional and further acts, things, deeds,
assurances and instruments as the Agent may require more completely to vest in
and assure to the Agent and the Banks their respective rights hereunder or in
any of the Collateral, including, without limitation, (a) executing, delivering
and, where appropriate, filing financing statements and continuation statements
under the Uniform Commercial Code, (b) obtaining governmental and other third
party consents and approvals, including without limitation any consent of any
licensor, lessor or other applicable party referred to in ss.2.3, (c) obtaining
waivers from mortgagees and landlords and (d) taking all actions required by
Sections 8-313 and 8-321 of the Uniform Commercial Code (1990) or Sections 8-106
and 9-115 of the Uniform Commercial Code (1994), as applicable in each relevant
jurisdiction, with respect to certificated and uncertificated securities.
13. Power of Attorney.
13.1. Appointment and Powers of Agent. The Company hereby
irrevocably constitutes and appoints the Agent and any officer or agent
thereof,
-8-
with full power of substitution, as its true and lawful attorneys-in-fact
with full irrevocable power and authority in the place and stead of the
Company or in the Agent's own name, for the purpose of carrying out the
terms of this Agreement, to take any and all appropriate action and to
execute any and all documents and instruments that may be necessary or
desirable to accomplish the purposes of this Agreement and, without
limiting the generality of the foregoing, hereby gives said attorneys the
power and right, on behalf of the Company, without notice to or assent by
the Company, to do the following:
(a) upon the occurrence and during the continuance of an Event
of Default, generally to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Collateral in such
manner as is consistent with the Uniform Commercial Code of the
Commonwealth of Massachusetts and as fully and completely as though
the Agent were the absolute owner thereof for all purposes, and to
do at the Company' expense, at any time, or from time to time, all
acts and things which the Agent deems necessary to protect, preserve
or realize upon the Collateral and the Agent's security interest
therein, in order to effect the intent of this Agreement, all as
fully and effectively as the Company might do, including, without
limitation, (i) the filing and prosecuting of registration and
transfer applications with the appropriate federal or local agencies
or authorities with respect to trademarks, copyrights and patentable
inventions and processes, (ii) upon written notice to the Company,
the exercise of voting rights with respect to voting securities,
which rights may be exercised, if the Agent so elects, with a view
to causing the liquidation in a commercially reasonable manner of
assets of the issuer of any such securities and (iii) the execution,
delivery and recording, in connection with any sale or other
disposition of any Collateral, of the endorsements, assignments or
other instruments of conveyance or transfer with respect to such
Collateral; and
(b) to file such financing statements with respect hereto,
with or without the Company's signature, or a photocopy of this
Agreement in substitution for a financing statement, as the Agent
may deem appropriate and to execute in the Company's name such
financing statements and amendments thereto and continuation
statements which may require the Company's signature.
13.2. Ratification by Company. To the extent permitted by law, the
Company hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled
with an interest and shall be irrevocable.
13.3. No Duty on Agent. The powers conferred on the Agent hereunder
are solely to protect the interests of the Agent and the Banks in the
Collateral and shall not impose any duty upon the Agent to exercise any
such powers. The Agent shall be accountable only for the amounts that it
actually receives as a
-9-
result of the exercise of such powers and neither it nor any of its
officers, directors, employees or agents shall be responsible to the
Company for any act or failure to act, except for the Agent's own gross
negligence or willful misconduct.
14. Remedies. If an Event of Default shall have occurred and be
continuing, the Agent may, without notice to or demand upon the Company, declare
this Agreement to be in default, and the Agent shall thereafter have in any
jurisdiction in which enforcement hereof is sought, in addition to all other
rights and remedies, the rights and remedies of a secured party under the
Uniform Commercial Code, including, without limitation, the right to take
possession of the Collateral, and for that purpose the Agent may, so far as the
Company can give authority therefor, enter upon any premises on which the
Collateral may be situated and remove the same therefrom. The Agent may in its
discretion require the Company to assemble all or any part of the Collateral at
such location or locations within the state(s) of the Company's principal
office(s) or at such other locations as the Agent may designate. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, the Agent shall give to the
Company at least ten (10) Business Days prior written notice of the time and
place of any public sale of Collateral or of the time after which any private
sale or any other intended disposition is to be made. The Company hereby
acknowledges that ten (10) Business Days prior written notice of such sale or
sales shall be reasonable notice. In addition, the Company waives any and all
rights that it may have to a judicial hearing in advance of the enforcement of
any of the Agent's rights hereunder, including, without limitation, its right
following an Event of Default to take immediate possession of the Collateral and
to exercise its rights with respect thereto. To the extent that any of the
Obligations are to be paid or performed by a person other than the Company, the
Company waives and agrees not to assert any rights or privileges which it may
have under ss.9-112 of the Uniform Commercial Code of the Commonwealth of
Massachusetts.
15. No Waiver, etc. The Company waives demand, notice, protest, notice of
acceptance of this Agreement, notice of loans made, credit extended, Collateral
received or delivered or other action taken in reliance hereon and all other
demands and notices of any description. With respect to both the Obligations and
the Collateral, the Company assents to any extension or postponement of the time
of payment or any other indulgence, to any substitution, exchange or release of
or failure to perfect any security interest in any Collateral, to the addition
or release of any party or person primarily or secondarily liable, to the
acceptance of partial payment thereon and the settlement, compromising or
adjusting of any thereof, all in such manner and at such time or times as the
Agent may deem advisable. The Agent shall have no duty as to the collection or
protection of the Collateral or any income thereon, nor as to the preservation
of rights against prior parties, nor as to the preservation of any rights
pertaining thereto beyond the safe custody thereof as set forth in ss.9.2. The
Agent shall not be deemed to have waived any of its rights upon or under the
Obligations or the Collateral unless such waiver shall be in writing and signed
by the Agent with the consent of the Majority Banks. No delay or omission on the
part of the Agent in exercising any right shall operate as a waiver of such
right or any other right. A waiver on any one occasion shall
-10-
not be construed as a bar to or waiver of any right on any future occasion. All
rights and remedies of the Agent with respect to the Obligations or the
Collateral, whether evidenced hereby or by any other instrument or papers, shall
be cumulative and may be exercised singularly, alternatively, successively or
concurrently at such time or at such times as the Agent deems expedient.
16. Marshalling. Neither the Agent nor any Bank shall be required to
marshal any present or future collateral security (including but not limited to
this Agreement and the Collateral) for, or other assurances of payment of, the
Obligations or any of them or to resort to such collateral security or other
assurances of payment in any particular order, and all of the rights of the
Agent hereunder and of the Agent or any Bank in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, the Company hereby agrees that it will not invoke any law relating to the
marshalling of collateral which might cause delay in or impede the enforcement
of the Agent's rights under this Agreement or under any other instrument
creating or evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
the Company hereby irrevocably waives the benefits of all such laws.
17. Proceeds of Dispositions; Expenses. The Company shall pay to the Agent
on demand any and all reasonable expenses, including reasonable attorneys' fees
and disbursements, incurred or paid by the Agent in protecting, preserving or
enforcing the Agent's rights under or in respect of any of the Obligations or
any of the Collateral. After deducting all of said expenses, the residue of any
proceeds of collection or sale of the Obligations or Collateral shall, to the
extent actually received in cash, be applied to the payment of the Obligations
in such order or preference as is provided in the Credit Agreement, proper
allowance and provision being made for any Obligations not then due. Upon the
final payment and satisfaction in full of all of the Obligations and after
making any payments required by Section 9-504(1)(c) of the Uniform Commercial
Code of the Commonwealth of Massachusetts, any excess shall be returned to the
Company, and the Company shall remain liable for any deficiency in the payment
of the Obligations.
18. Overdue Amounts. Until paid, all amounts due and payable by the
Company hereunder shall be a debt secured by the Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
19. Governing Law; Consent to Jurisdiction. THIS AGREEMENT IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The Company
agrees that any suit for the enforcement of this Agreement may be brought in the
courts of the Commonwealth of Massachusetts or any federal court sitting therein
and consents to the non-exclusive jurisdiction of such court and to service of
process in any such suit being made upon the
-11-
Company by mail at the address specified in ss.21 of the Credit Agreement. The
Company hereby waives any objection that it may now or hereafter have to the
venue of any such suit or any such court or that such suit is brought in an
inconvenient court.
20. Waiver of Jury Trial. THE COMPANY WAIVES ITS RIGHT TO A JURY TRIAL
WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF
ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, the Company waives
any right which it may have to claim or recover in any litigation referred to in
the preceding sentence any special, exemplary, punitive or consequential damages
or any damages other than, or in addition to, actual damages. The Company (a)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or any Bank has represented, expressly or otherwise, that
the Agent or any Bank would not, in the event of litigation, seek to enforce the
foregoing waivers and (b) acknowledges that, in entering into the Credit
Agreement and the other Loan Documents to which the Agent or any Bank is a
party, the Agent and the Banks are relying upon, among other things, the waivers
and certifications contained in this ss.20.
21. Concerning Revised Article 9 of the Uniform Commercial Code. The
parties acknowledge and agree to the following provisions of this Agreement in
anticipation of the possible application, in one or more jurisdictions to the
transactions contemplated hereby, of the revised Article 9 of the Uniform
Commercial Code in the form or substantially in the form approved by the
American Law Institute and the National Conference of Commissioners on Uniform
State Law and contained in the 1999 official text of Revised Article 9 ("Revised
Article 9").
21.1. Attachment. In applying the law of any jurisdiction in which
Revised Article 9 is in effect, the Collateral is all assets of the
Company, whether or not within the scope of Revised Article 9. The
Collateral shall include, without limitation, the following categories of
assets as defined in Revised Article 9: goods (including inventory,
equipment and any accessions thereto), instruments (including promissory
notes), documents, accounts (including health-care-insurance receivables),
chattel paper (whether tangible or electronic), deposit accounts,
letter-of-credit rights (whether or not the letter of credit is evidenced
by a writing), commercial tort claims, securities and all other investment
property, general intangibles (including payment intangibles and
software), supporting obligations and any and all proceeds of any thereof,
wherever located, whether now owned and hereafter acquired. If the Company
shall at any time, whether or not Revised Article 9 is in effect in any
particular jurisdiction, acquire a commercial tort claim, as defined in
Revised Article 9, the Company shall immediately notify the Agent in a
writing signed by the Company of the brief details thereof and grant to
the Agent in such writing a security interest therein and in the proceeds
thereof, all upon the terms of this Agreement, with such writing to be in
form and substance satisfactory to the Agent.
-12-
21.2. Perfection by Filing. The Agent may at any time and from time
to time, pursuant to the provisions of ss.13, file financing statements,
continuation statements and amendments thereto that describe the
Collateral as all assets of the Company or words of similar effect and
which contain any other information required by Part 5 of Revised Article
9 for the sufficiency or filing office acceptance of any financing
statement, continuation statement or amendment, including whether the
Company is an organization, the type of organization and any organization
identification number issued to the Company. The Company agrees to furnish
any such information to the Agent promptly upon request. Any such
financing statements, continuation statements or amendments may be signed
by the Agent on behalf of the Company, as provided in ss.13, and may be
filed at any time in any jurisdiction whether or not Revised Article 9 is
then in effect in that jurisdiction.
21.3. Other Perfection, etc. The Company shall at any time and from
time to time, whether or not Revised Article 9 is in effect in any
particular jurisdiction, take such steps as the Agent may reasonably
request for the Agent (a) to obtain an acknowledgement, in form and
substance satisfactory to the Agent, of any bailee having possession of
any of the Collateral that the bailee holds such Collateral for the Agent,
(b) to obtain "control" of any investment property, deposit accounts,
letter-of-credit rights or electronic chattel paper (as such terms are
defined in Revised Article 9 with corresponding provisions in Rev. ▇▇.▇▇.
9-104, 9-105, 9-106 and 9-107 relating to what constitutes "control" for
such items of Collateral), with any agreements establishing control to be
in form and substance satisfactory to the Agent, and (c) otherwise to
insure the continued perfection and priority of the Agent's security
interest in any of the Collateral and of the preservation of its rights
therein, whether in anticipation and following the effectiveness of
Revised Article 9 in any jurisdiction.
21.4. Other Provisions. In applying the law of any jurisdiction in
which Revised Article 9 is in effect, the following references to sections
in this Agreement to existing Article 9 of that jurisdiction shall be to
the Revised Article 9 Section of that jurisdiction indicated below:
-------------------------------------------------------------------------
Agreement Section Existing Article 9 Revised Article 9
-------------------------------------------------------------------------
3 ss. 9-103(3) Rev.ss.9-102(a)(34)
-------------------------------------------------------------------------
9.2 ss. 9-207 Rev.ss.9-207
-------------------------------------------------------------------------
12 ss.ss.8-106 and 9-115 (1994) Rev.ss.ss.8-106 and 9-106
-------------------------------------------------------------------------
17 ss. 9-504(1)(c) Rev.ss.ss.9-608(a)(1)(C) and
9-615(a)(3)
-------------------------------------------------------------------------
21.5. Savings Clause. Nothing contained in this ss.21 shall be
construed to narrow the scope of the Agent's security interest in any of
the Collateral or the perfection or priority thereof or to impair or
otherwise limit any of the rights, powers, privileges or remedies of the
Agent or any Bank hereunder except (and
-13-
then only to the extent) mandated by Revised Article 9 to the extent then
applicable.
22. Miscellaneous. The headings of each section of this Agreement are for
convenience only and shall not define or limit the provisions thereof. This
Agreement and all rights and obligations hereunder shall be binding upon the
Company and its respective successors and assigns, and shall inure to the
benefit of the Agent, the Banks and their respective successors and assigns. If
any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein. The
Company acknowledges receipt of a copy of this Agreement.
-14-
IN WITNESS WHEREOF, intending to be legally bound, the Company has caused
this Agreement to be duly executed as of the date first above written.
GENRAD, INC.
By:
------------------------------------
Name:
Title:
Accepted:
FLEET NATIONAL BANK,
as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Vice President
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ______ day of March, 2000, personally appeared ______________
to me known personally, and who, being by me duly sworn, deposes and says that
he is the _____________ of GenRad, Inc., and that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of Directors, and
said acknowledged said instrument to be the free act and deed of said
corporation.
------------------------------------
Notary Public
My commission expires:
-14-
IN WITNESS WHEREOF, intending to be legally bound, the Company has caused
this Agreement to be duly executed as of the date first above written.
GENRAD, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CFO
Accepted:
FLEET NATIONAL BANK,
as Agent
By:
----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Vice President
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF Suffolk )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 13th day of March, 2000, personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ to me known personally, and who, being by me duly sworn, deposes and
says that he is the CFO of GenRad, Inc., and that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of Directors, and
said ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ acknowledged said instrument to be the free act and deed
of said corporation.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Notary Public
My commission expires:
September 18, 2003
Schedule 3
Government Customers that might Generate Receivables
The total aggregate outstanding receivables for the following customers as of
March 8, 2000 is $47,015.00
DFAS - Columbus Center
Bunker Hill Division
▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
DFAS - DY/FP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇-▇▇▇-▇▇▇▇
DFAS - KC/FE
Kansas City Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇
DFAS - SB/FP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
TRADEMARK COLLATERAL
SECURITY AND PLEDGE AGREEMENT
TRADEMARK COLLATERAL SECURITY AND PLEDGE AGREEMENT, dated as of March 24,
2000, between GenRad, Inc., a Massachusetts corporation having its principal
place of business at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, (the "Assignor"), and Fleet National Bank, a national banking
association having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
as agent (hereinafter, in such capacity, the "Agent") for itself and the other
lending institutions (hereinafter, collectively, the "Banks") which are, or may
in the future become, parties to that certain Revolving Credit and Term Loan
Agreement, dated as of March 24, 2000 (as amended and in effect from time to
time, the "Credit Agreement"), among the Assignor, GenRad Holdings Limited
("Holdings"), a corporation organized under the laws of England and Wales,
GenRad Europe Limited ("GenRad Europe"), a corporation organized under the laws
of England and Wales, and GenRad Limited ("GenRad Ltd." and together with the
Holdings and GenRad Europe, the "Borrowing Subsidiaries"), a corporation
organized under the laws of England and Wales, the Banks and the Agent.
WHEREAS, it is a condition precedent to the Banks making any loans or
otherwise extending credit to the Assignor and the Borrowing Subsidiaries under
the Credit Agreement that the Assignor execute and deliver to the Agent, for the
benefit of the Banks and the Agent, a trademark agreement in substantially the
form hereof;
WHEREAS, the Assignor has executed and delivered to the Agent, for the
benefit of the Banks and the Agent, the Security Agreement (as defined in the
Credit Agreement) dated as of the date hereof, pursuant to which the Assignor
has granted to the Agent, for the benefit of the Banks and the Agent, a security
interest in certain of the Assignor's personal property and fixture assets,
including without limitation the trademarks, service marks, trademark and
service ▇▇▇▇ registrations, and trademark and service ▇▇▇▇ registration
applications listed on Schedule A attached hereto, all to secure the payment and
performance of the Obligations (as defined in the Credit Agreement); and
WHEREAS, this Trademark Agreement is supplemental to the provisions
contained in the Security Agreement;
NOW, THEREFORE, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS.
Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings provided therefor in the Credit Agreement and the
Security Agreement. In addition, the following terms shall have the meanings set
forth in this ss.1 or elsewhere in this Trademark Agreement referred to below:
-2-
Assignment of Marks. See ss.2.1.
Associated Goodwill. All goodwill of the Assignor and its business,
products and services appurtenant to, associated with or symbolized by the
Trademarks and the use thereof.
Pledged Trademarks. All of the Assignor's right, title and interest in and
to all of the Trademarks, the Trademark Registrations, the Trademark License
Rights, the Trademark Rights, the Associated Goodwill, the Related Assets, and
all accessions to, substitutions for, replacements of, and all products and
proceeds of any and all of the foregoing.
PTO. The United States Patent and Trademark Office.
Related Assets. All assets, rights and interests of the Assignor that
uniquely reflect or embody the Associated Goodwill, including the following:
(a) all patents, inventions, copyrights, trade secrets, confidential
information, formulae, methods or processes, compounds, recipes, know-how,
methods and operating systems, drawings, descriptions, formulations,
manufacturing and production and delivery procedures, quality control
procedures, product and service specifications, catalogs, price lists, and
advertising materials, relating to the manufacture, production, delivery,
provision and sale of goods or services under or in association with any
of the Trademarks; and
(b) the following documents and things in the possession or under
the control of the Assignor, or subject to its demand for possession or
control, related to the production, delivery, provision and sale by the
Assignor, or any affiliate, franchisee, licensee or contractor, of
products or services sold by or under the authority of the Assignor in
connection with the Trademarks or Trademark Rights, whether prior to, on
or subsequent to the date hereof:
(i) all lists, contracts, ancillary documents and other
information that identify, describe or provide information with
respect to any customers, dealers or distributors of the Assignor,
its affiliates or franchisees or licensees or contractors, for
products or services sold under or in connection with the Trademarks
or Trademark Rights, including all lists and documents containing
information regarding each customer's, dealer's or distributor's
name and address, credit, payment, discount, delivery and other sale
terms, and history, pattern and total of purchases by brand,
product, style, size and quantity;
(ii) all agreements (including franchise agreements), product
and service specification documents and operating, production and
quality control manuals relating to or used in the design,
manufacture,
-3-
production, delivery, provision and sale of products or services
under or in connection with the Trademarks or Trademark Rights;
(iii) all documents and agreements relating to the identity
and locations of all sources of supply, all terms of purchase and
delivery, for all materials, components, raw materials and other
supplies and services used in the manufacture, production,
provision, delivery and sale of products or services under or in
connection with the Trademarks or Trademark Rights; and
(iv) all agreements and documents constituting or concerning
the present or future, current or proposed advertising and promotion
by the Assignor (or any of its affiliates, franchisees, licensees or
contractors) of products or services sold under or in connection
with the Trademarks or Trademark Rights.
Trademark Agreement. This Trademark Collateral Security and Pledge
Agreement, as amended and in effect from time to time.
Trademark License Rights. Any and all present rights and interests
(whenever accrued or arising) or future rights and interests of the Assignor
pursuant to any and all past, present and future franchising or licensing
agreements in favor of the Assignor, or to which the Assignor is a party,
pertaining to any Trademarks, Trademark Registrations, or Trademark Rights owned
or used by third parties in the past, present or future, including the right
(but not the obligation) in the name of the Assignor or the Agent to enforce,
and ▇▇▇ and recover for, any breach or violation of any such agreement to which
the Assignor is a party.
Trademark Registrations. All present federal, state, local and foreign
registrations of the Trademarks (whenever accrued or arising) or future federal,
state, local and foreign registrations of the Trademarks, all past, present and
future applications for any such registrations (and any such registrations
thereof upon approval of such applications), together with the right (but not
the obligation) to apply for such registrations (and prosecute such
applications) in the name of the Assignor or the Agent, and to take any and all
actions necessary or appropriate to maintain such registrations in effect and
renew and extend such registrations.
Trademark Rights. Any and all present rights (whenever accrued or arising)
or future rights in, to and associated with the Trademarks throughout the world,
whether arising under federal law, state law, common law, foreign law or
otherwise, including the following: all such rights arising out of or associated
with the Trademark Registrations; the right (but not the obligation) to register
claims under any state, federal or foreign trademark law or regulation; the
right (but not the obligation) to ▇▇▇ or bring opposition or cancellation
proceedings in the name of the Assignor or the Agent for any and all past,
present and future infringements or dilution of or any other damages or injury
to the Trademarks, the Trademark Rights, or the Associated Goodwill, and the
rights to damages or profits due or accrued arising out of or in connection with
any such
-4-
past, present or future infringement, dilution, damage or injury; and the
Trademark License Rights.
Trademarks. All of the trademarks, service marks, designs, logos, indicia,
trade names, corporate names, company names, business names, fictitious business
names, trade styles, elements of package or trade dress, and other source and
product or service identifiers, used or associated with or appurtenant to the
products, services and businesses of the Assignor, that (a) are set forth on
Schedule A hereto, or (b) have been adopted, acquired, owned, held or used by
the Assignor or are now owned, held or used by the Assignor, in the Assignor's
business, or with the Assignor's products and services, or in which the Assignor
has any right, title or interest, or (c) are in the future adopted, acquired,
owned, held and used by the Assignor in the Assignor's business or with the
Assignor's products and services, or in which the Assignor in the future
acquires any right, title or interest.
Use. With respect to any Trademark, all uses of such Trademark by, for or
in connection with the Assignor or its business or for the direct or indirect
benefit of the Assignor or its business, including all such uses by the Assignor
itself, by any of the affiliates of the Assignor, or by any franchisee, licensee
or contractor of the Assignor.
Unless otherwise provided herein, the rules of interpretation set forth in
ss.1.2 of the Credit Agreement shall be applicable to this Trademark Agreement.
2. GRANT OF SECURITY INTEREST.
2.1. Security Interest; Assignment of Marks. As collateral security for
the payment and performance in full of all of the Obligations, the Assignor
hereby unconditionally grants to the Agent, for the benefit of the Banks and the
Agent, a continuing security interest in and first priority lien on the Pledged
Trademarks, and pledges and mortgages (but does not transfer title to) the
Pledged Trademarks to the Agent for the benefit of the Banks and the Agent. In
addition, the Assignor has executed in blank and delivered to the Agent an
assignment of federally registered trademarks in substantially the form of
Exhibit 1 hereto (the "Assignment of Marks"). The Assignor hereby authorizes the
Agent to complete as assignee and record with the PTO the Assignment of Marks
upon the occurrence and during the continuance of an Event of Default and the
proper exercise of the Agent's remedies under this Trademark Agreement and the
Security Agreement.
2.2. Conditional Assignment. In addition to, and not by way of limitation
of, the grant, pledge and mortgage of the Pledged Trademarks provided in ss.2.1,
the Assignor grants, assigns, transfers, conveys and sets over to the Agent, for
the benefit of the Banks and the Agent, the Assignor's entire right, title and
interest in and to the Pledged Trademarks; provided that such grant, assignment,
transfer and conveyance shall be and become of force and effect only (a) upon or
after the occurrence and during the continuance of an Event of Default and (b)
either (i) upon the written demand of the Agent at any time during such
continuance or (ii) immediately and automatically (without notice or action of
any kind by the Agent) upon an Event of Default for which
-5-
acceleration of the Loans is automatic under the Credit Agreement or upon the
sale or other disposition of or foreclosure upon the Collateral pursuant to the
Security Agreement and applicable law (including the transfer or other
disposition of the Collateral by the Assignor to the Agent or its nominee in
lieu of foreclosure).
2.3. Supplemental to Security Agreement. Pursuant to the Security
Agreement the Assignor has granted to the Agent, for the benefit of the Banks
and the Agent, a continuing security interest in and lien on the Collateral
(including the Pledged Trademarks). The Security Agreement, and all rights and
interests of the Agent in and to the Collateral (including the Pledged
Trademarks) thereunder, are hereby ratified and confirmed in all respects. In no
event shall this Trademark Agreement, the grant, assignment, transfer and
conveyance of the Pledged Trademarks hereunder, or the recordation of this
Trademark Agreement (or any document hereunder) with the PTO, adversely affect
or impair, in any way or to any extent, the Security Agreement, the security
interest of the Agent in the Collateral (including the Pledged Trademarks)
pursuant to the Security Agreement and this Trademark Agreement, the attachment
and perfection of such security interest under the Uniform Commercial Code
(including the security interest in the Pledged Trademarks), or any present or
future rights and interests of the Agent in and to the Collateral under or in
connection with the Security Agreement, this Trademark Agreement or the Uniform
Commercial Code. Any and all rights and interests of the Agent in and to the
Pledged Trademarks (and any and all obligations of the Assignor with respect to
the Pledged Trademarks) provided herein, or arising hereunder or in connection
herewith, shall only supplement and be cumulative and in addition to the rights
and interests of the Agent (and the obligations of the Assignor) in, to or with
respect to the Collateral (including the Pledged Trademarks) provided in or
arising under or in connection with the Security Agreement and shall not be in
derogation thereof.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Assignor represents, warrants and covenants that: (a) Schedule A sets
forth a true and complete list of all material Trademarks and Trademark
Registrations now owned, licensed, controlled or used by the Assignor; (b) the
Trademarks and Trademark Registrations are subsisting and have not been adjudged
invalid or unenforceable, in whole or in part, and there is no litigation or
proceeding pending concerning the validity or enforceability of the Trademarks
or Trademark Registrations; (c) to the best of the Assignor's knowledge, each of
the Trademarks and Trademark Registrations is valid and enforceable; (d) to the
best of the Assignor's knowledge, there is no infringement by others of the
Trademarks, Trademark Registrations or Trademark Rights that would have a
materially adverse effect on the business, assets or financial condition of the
Assignor or its Subsidiaries; (e) no claim has been made that the use of any of
the Trademarks does or may violate the rights of any third person, and to the
best of the Assignor's knowledge, there is no infringement by the Assignor of
the trademark rights of others; (f) subject to the limitations of laws
applicable to trademarks, the Assignor is the sole and exclusive owner of the
entire and unencumbered right, title and interest in and to each of the
Trademarks (other than ownership and other rights reserved by third party owners
with respect to Trademarks that the Assignor is licensed to use), free and
-6-
clear of any liens, charges, encumbrances and adverse claims, including pledges,
assignments, licenses, registered user agreements and covenants by the Assignor
not to ▇▇▇ third persons, other than the security interest and assignment
created by the Security Agreement and this Trademark Agreement; (g) the Assignor
has the unqualified right to enter into this Trademark Agreement and to perform
its terms and has entered and will enter into written agreements, unless its
failure to enter into such agreements will not have a materially adverse effect
on the business, assets or financial condition of the Assignor or its
Subsidiaries, with each of its present and future employees, agents,
consultants, licensors and licensees that will enable them to comply with the
covenants herein contained; (h) the Assignor has used, and will continue to use,
proper statutory and other appropriate proprietary notices in connection with
its use of the Trademarks; (i) the Assignor has used, and will continue to use
for the duration of this Trademark Agreement, consistent standards of quality in
its manufacture and provision of products and services sold or provided under
the Trademarks; (j) this Trademark Agreement, together with the Security
Agreement, will create in favor of the Agent a valid and perfected first
priority security interest in the Pledged Trademarks upon making the filings
referred to in clause (k) of this ss.3; and (k) except for the filing of
financing statements with the Secretary of State of the Commonwealth of
Massachusetts under the Uniform Commercial Code of the Commonwealth of
Massachusetts and the recording of this Trademark Agreement with the PTO, no
authorization, approval or other action by, and no notice to or filing with, any
governmental or regulatory authority, agency or office is required either (i)
for the grant by the Assignor or the effectiveness of the security interest and
assignment granted hereby or for the execution, delivery and performance of this
Trademark Agreement by the Assignor, or (ii) for the perfection of or the
exercise by the Agent of any of its rights and remedies hereunder.
4. INSPECTION RIGHTS.
The Assignor hereby grants to each of the Agent and the Banks and its
employees and agents the right to visit the Assignor's plants and facilities
that manufacture, inspect or store products sold under any of the Trademarks,
and to inspect the products and quality control records relating thereto at
reasonable times during regular business hours.
5. NO TRANSFER OR INCONSISTENT AGREEMENTS.
Without the Agent's prior written consent, the Assignor will not (a)
mortgage, pledge, assign, encumber, transfer, alienate or grant a security
interest in any of the Pledged Trademarks, or, other than in the ordinary course
of business consistent with its past practices, license any of the Pledged
Trademarks, or (b) enter into any agreement that is inconsistent with the
Assignor's obligations under this Trademark Agreement or the Security Agreement.
6. AFTER-ACQUIRED TRADEMARKS, ETC.
6.1. After-acquired Trademarks. If, before the Obligations shall have been
finally paid and satisfied in full, the Assignor shall obtain any right, title
or interest in or
-7-
to any other or new Trademarks, Trademark Registrations or Trademark Rights, the
provisions of this Trademark Agreement shall automatically apply thereto and the
Assignor shall promptly provide to the Agent notice of such new and material
Trademarks, Trademark Registrations or Trademark Rights in writing and execute
and deliver to the Agent such documents or instruments as the Agent may
reasonably request further to implement, preserve or evidence the Agent's
interest therein.
6.2. Amendment to Schedule. The Assignor authorizes the Agent to modify
this Trademark Agreement and the Assignment of Marks, without the necessity of
the Assignor's further approval or signature, by amending Exhibit A hereto and
the Annex to the Assignment of Marks to include any future or other Trademarks,
Trademark Registrations or Trademark Rights under ss.2 or ss.6.
7. TRADEMARK PROSECUTION.
7.1. Assignor Responsible. The Assignor shall assume full and complete
responsibility for the prosecution, defense, enforcement or any other necessary
or desirable actions in connection with the Pledged Trademarks, and shall hold
each of the Agent and the Banks harmless from any and all costs, damages,
liabilities and reasonable costs and expenses that may be incurred by the Agent
or any Bank in connection with the Agent's interest in the Pledged Trademarks or
any other action or failure to act in connection with this Trademark Agreement
or the transactions contemplated hereby. In respect of such responsibility, the
Assignor shall retain trademark counsel acceptable to the Agent.
7.2. Assignor's Duties, etc. The Assignor shall have the right and the
duty, through trademark counsel acceptable to the Agent, to prosecute diligently
any trademark registration applications of the Trademarks pending as of the date
of this Trademark Agreement or thereafter, to preserve and maintain all rights
in the Trademarks and Trademark Registrations, including the filing of
appropriate renewal applications and other instruments to maintain in effect the
Trademark Registrations and the payment when due of all registration renewal
fees and other fees, taxes and other expenses that shall be incurred or that
shall accrue with respect to any of the Trademarks or Trademark Registrations.
Any expenses incurred in connection with such applications and actions shall be
borne by the Assignor. The Assignor shall not abandon any filed trademark
registration application, or any Trademark Registration or Trademark, without
the consent of the Agent, which consent shall not be unreasonably withheld.
Notwithstanding anything to the contrary contained in this ss.7.2, so long as no
Event of Default has occurred and is continuing, nothing in this ss.7.2 shall
require the Assignor to prosecute any trademark registration applications,
preserve and maintain all rights in the Trademarks and Trademark Registrations
and not abandon any trademark registration application, Trademark Registration
or Trademark if the taking of such action is not in the Assignor's reasonable
judgment desirable in the conduct of its business and the failure to take such
action does not have a materially adverse effect on the business, assets or
financial condition of the Assignor or its Subsidiaries.
-8-
7.3. Assignor's Enforcement Rights. The Assignor shall have the right and
the duty to bring suit or other action in the Assignor's own name to maintain
and enforce the Trademarks, the Trademark Registrations and the Trademark
Rights; provided, however, so long as no Event of Default shall have occurred
and is continuing, nothing in this ss.7.3 shall require the Assignor to take
such action if the taking of such action is not in the Assignor's reasonable
judgment desirable in the conduct of its business and the failure to take such
action does not have a materially adverse effect on the business, assets or
financial condition of the Assignor and its Subsidiaries. The Assignor may
require the Agent to join in such suit or action as necessary to assure the
Assignor's ability to bring and maintain any such suit or action in any proper
forum if (but only if) the Agent is completely satisfied that such joinder will
not subject the Agent or any Bank to any risk of liability. The Assignor shall
promptly, upon demand, reimburse and indemnify the Agent for all damages and
reasonable costs and expenses, including legal fees, incurred by the Agent
pursuant to this ss.7.3.
7.4. Protection of Trademarks, etc. In general, the Assignor shall take
any and all such actions (including institution and maintenance of suits,
proceedings or actions) as may be necessary or appropriate to properly maintain,
protect, preserve, care for and enforce the Pledged Trademarks. The Assignor
shall not take or fail to take any action, nor permit any action to be taken or
not taken by others under its control, that would adversely affect the validity,
grant or enforcement of the Pledged Trademarks. Notwithstanding anything to the
contrary contained in this ss.7.4, so long as no Event of Default shall have
occurred and is continuing, nothing is this ss.7.4 shall require the Assignor to
take any action or not take any action, as the case may be, if such requirement
is not in the Assignor's reasonable judgment desirable in the conduct of its
business and the failure to take such action or not take such action, as the
case may be, does not have a materially adverse effect on the business, assets
or financial condition of the Assignor and its Subsidiaries.
7.5. Notification by Assignor. Promptly upon obtaining knowledge thereof,
the Assignor will notify the Agent in writing of the institution of, or any
final adverse determination in, any proceeding in the PTO or any similar office
or agency of the United States or any foreign country, or any court, regarding
the validity of any of the Trademarks or Trademark Registrations or the
Assignor's rights, title or interests in and to the Pledged Trademarks, and of
any event that does or reasonably could materially adversely affect the value of
any of the Pledged Trademarks, the ability of the Assignor or the Agent to
dispose of any of the Pledged Trademarks or the rights and remedies of the Agent
in relation thereto (including but not limited to the levy of any legal process
against any of the Pledged Trademarks).
8. REMEDIES.
Upon the occurrence and during the continuance of an Event of Default, the
Agent shall have, in addition to all other rights and remedies given it by this
Trademark Agreement (including, without limitation, those set forth in ss.2.2,
the Credit Agreement, the Security Agreement and the other Loan Documents, those
allowed by law and the rights and remedies of a secured party under the Uniform
Commercial Code as enacted
-9-
in the Commonwealth of Massachusetts, and, without limiting the generality of
the foregoing, the Agent may immediately, without demand of performance and
without other notice (except as set forth next below) or demand whatsoever to
the Assignor, all of which are hereby expressly waived, sell or license at
public or private sale or otherwise realize upon the whole or from time to time
any part of the Pledged Trademarks, or any interest that the Assignor may have
therein, and after deducting from the proceeds of sale or other disposition of
the Pledged Trademarks all expenses incurred by the Agent in attempting to
enforce this Trademark Agreement (including all reasonable expenses for broker's
fees and legal services), shall apply the residue of such proceeds toward the
payment of the Obligations as set forth in or by reference in the Security
Agreement. Notice of any sale, license or other disposition of the Pledged
Trademarks shall be given to the Assignor at least five (5) business days before
the time that any intended public sale or other public disposition of the
Pledged Trademarks is to be made or after which any private sale or other
private disposition of the Pledged Trademarks may be made, which the Assignor
hereby agrees shall be reasonable notice of such public or private sale or other
disposition. At any such sale or other disposition, the Agent may, to the extent
permitted under applicable law, purchase or license the whole or any part of the
Pledged Trademarks or interests therein sold, licensed or otherwise disposed of.
9. COLLATERAL PROTECTION.
If the Assignor shall fail to do any act that it has covenanted to do
hereunder, or if any representation or warranty of the Assignor shall be
breached, the Agent, in its own name or that of the Assignor (in the sole
discretion of the Agent), may (but shall not be obligated to) do such act or
remedy such breach (or cause such act to be done or such breach to be remedied),
and the Assignor agrees promptly to reimburse the Agent for any reasonable cost
or expense incurred by the Agent in so doing.
10. POWER OF ATTORNEY.
If any Event of Default shall have occurred and be continuing, the
Assignor does hereby make, constitute and appoint the Agent (and any officer or
agent of the Agent as the Agent may select in its exclusive discretion) as the
Assignor's true and lawful attorney-in-fact, with full power of substitution and
with the power to endorse the Assignor's name on all applications, documents,
papers and instruments necessary for the Agent to use the Pledged Trademarks, or
to grant or issue any exclusive or nonexclusive license of any of the Pledged
Trademarks to any third person, or to take any and all actions necessary for the
Agent to assign, pledge, convey or otherwise transfer title in or dispose of any
of the Pledged Trademarks or any interest of the Assignor therein to any third
person, and, in general, to execute and deliver any instruments or documents and
do all other acts that the Assignor is obligated to execute and do hereunder.
The Assignor hereby ratifies all that such attorney shall lawfully do or cause
to be done by virtue hereof and releases each of the Agent and the Banks from
any claims, liabilities, causes of action or demands arising out of or in
connection with any action taken or omitted to be taken by the Agent under this
power of attorney (except for the Agent's gross negligence or willful
misconduct). This power of attorney
-10-
is coupled with an interest and shall be irrevocable for the duration of this
Trademark Agreement.
11. FURTHER ASSURANCES.
The Assignor shall, at any time and from time to time, and at its expense,
make, execute, acknowledge and deliver, and file and record as necessary or
appropriate with governmental or regulatory authorities, agencies or offices,
such agreements, assignments, documents and instruments, and do such other and
further acts and things (including, without limitation, obtaining consents of
third parties), as the Agent may request or as may be necessary or appropriate
in order to implement and effect fully the intentions, purposes and provisions
of this Trademark Agreement, or to assure and confirm to the Agent the grant,
perfection and priority of the Agent's security interest in the Pledged
Trademarks.
12. TERMINATION.
At such time as all of the Obligations have been finally paid and
satisfied in full, this Trademark Agreement shall terminate and the Agent shall,
upon the written request and at the expense of the Assignor, execute and deliver
to the Assignor all deeds, assignments and other instruments as may be necessary
or proper to reassign and reconvey to and re-vest in the Assignor the entire
right, title and interest to the Pledged Trademarks previously granted,
assigned, transferred and conveyed to the Agent by the Assignor pursuant to this
Trademark Agreement, as fully as if this Trademark Agreement had not been made,
subject to any disposition of all or any part thereof that may have been made by
the Agent pursuant hereto or the Security Agreement.
13. COURSE OF DEALING.
No course of dealing between the Assignor and the Agent, nor any failure
to exercise, nor any delay in exercising, on the part of the Agent, any right,
power or privilege hereunder or under the Security Agreement or any other
agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or thereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
14. EXPENSES.
Any and all reasonable fees, costs and expenses, of whatever kind or
nature, including the reasonable attorneys' fees and expenses incurred by the
Agent in connection with the preparation of this Trademark Agreement and all
other documents relating hereto, the consummation of the transactions
contemplated hereby or the enforcement hereof, the filing or recording of any
documents (including all taxes in connection therewith) in public offices, the
payment or discharge of any taxes, counsel fees, maintenance or renewal fees,
encumbrances, or otherwise protecting, maintaining or preserving the Pledged
Trademarks, or in defending or prosecuting any actions or
-11-
proceedings arising out of or related to the Pledged Trademarks, shall be borne
and paid by the Assignor on demand.
15. OVERDUE AMOUNTS.
Until paid, all amounts due and payable by the Assignor hereunder shall be
a debt secured by the Pledged Trademarks and other Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
16. NO ASSUMPTION OF LIABILITY; INDEMNIFICATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NEITHER THE
AGENT NOR ANY BANK ASSUMES ANY LIABILITIES OF THE ASSIGNOR WITH RESPECT TO ANY
CLAIM OR CLAIMS REGARDING THE ASSIGNOR'S OWNERSHIP OR PURPORTED OWNERSHIP OF, OR
RIGHTS OR PURPORTED RIGHTS ARISING FROM, ANY OF THE PLEDGED TRADEMARKS OR ANY
USE, LICENSE OR SUBLICENSE THEREOF, WHETHER ARISING OUT OF ANY PAST, CURRENT OR
FUTURE EVENT, CIRCUMSTANCE, ACT OR OMISSION OR OTHERWISE. ALL OF SUCH
LIABILITIES SHALL BE EXCLUSIVELY THE RESPONSIBILITY OF THE ASSIGNOR, AND THE
ASSIGNOR SHALL INDEMNIFY THE AGENT AND THE BANKS FOR ANY AND ALL COSTS,
EXPENSES, DAMAGES AND CLAIMS, INCLUDING LEGAL FEES, INCURRED BY THE AGENT OR ANY
BANK WITH RESPECT TO SUCH LIABILITIES.
17. NOTICES.
All notices and other communications made or required to be given pursuant
to this Trademark Agreement shall be in writing and shall be delivered by hand,
mailed by United States registered or certified first-class mail, postage
prepaid, or sent by telegraph, telecopy or telex and confirmed by delivery via
courier or postal service, addressed as follows:
(a) if to the Assignor, at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President and
Chief Financial Officer, or at such other address for notice as the
Assignor shall last have furnished in writing to the person giving the
notice; and
(b) if to the Agent, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President, or at such other
address for notice as the Agent shall last have furnished in writing to
the person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand to a responsible officer
of the party to which it is directed, at the time of the receipt thereof by such
officer, (ii) if sent by
-12-
registered or certified first-class mail, postage prepaid, two (2) Business Days
after the posting thereof, and (iii) if sent by telegraph, telecopy, or telex,
at the time of the dispatch thereof, if in normal business hours in the country
of receipt, or otherwise at the opening of business on the following Business
Day.
18. AMENDMENT AND WAIVER.
This Trademark Agreement is subject to modification only by a writing
signed by the Agent (with the consent of the Majority Banks) and the Assignor,
except as provided in ss.6.2. The Agent shall not be deemed to have waived any
right hereunder unless such waiver shall be in writing and signed by the Agent
and the Majority Banks. A waiver on any one occasion shall not be construed as a
bar to or waiver of any right on any future occasion.
19. GOVERNING LAW; CONSENT TO JURISDICTION.
THIS TRADEMARK AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT
AND SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS. The Assignor agrees that any suit for the
enforcement of this Trademark Agreement may be brought in the courts of the
Commonwealth of Massachusetts or any federal court sitting therein and consents
to the non-exclusive jurisdiction of such court and to service of process in any
such suit being made upon the Assignor by mail at the address specified in
ss.17. The Assignor hereby waives any objection that it may now or hereafter
have to the venue of any such suit or any such court or that such suit is
brought in an inconvenient court.
20. WAIVER OF JURY TRIAL.
THE ASSIGNOR WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION
OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS TRADEMARK AGREEMENT,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY SUCH RIGHTS OR
OBLIGATIONS. Except as prohibited by law, the Assignor waives any right which it
may have to claim or recover in any litigation referred to in the preceding
sentence any special, exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages. The Assignor (a)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or any Bank has represented, expressly or otherwise, that
the Agent or any Bank would not, in the event of litigation, seek to enforce the
foregoing waivers, and (b) acknowledges that, in entering into the Credit
Agreement and the other Loan Documents to which the Agent or any Bank is a
party, the Agent and the Banks are relying upon, among other things, the waivers
and certifications contained in this ss.20.
-13-
21. MISCELLANEOUS.
The headings of each section of this Trademark Agreement are for
convenience only and shall not define or limit the provisions thereof. This
Trademark Agreement and all rights and obligations hereunder shall be binding
upon the Assignor and its respective successors and assigns, and shall inure to
the benefit of the Agent, the Banks and their respective successors and assigns.
In the event of any irreconcilable conflict between the provisions of this
Trademark Agreement and the Credit Agreement, or between this Trademark
Agreement and the Security Agreement, the provisions of the Credit Agreement or
the Security Agreement, as the case may be, shall control. If any term of this
Trademark Agreement shall be held to be invalid, illegal or unenforceable, the
validity of all other terms hereof shall in no way be affected thereby, and this
Trademark Agreement shall be construed and be enforceable as if such invalid,
illegal or unenforceable term had not been included herein. The Assignor
acknowledges receipt of a copy of this Trademark Agreement.
-14-
IN WITNESS WHEREOF, this Trademark Agreement has been executed as of the
day and year first above written.
GENRAD, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CFO
FLEET NATIONAL BANK, as Agent
By:
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Vice President
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF Suffolk )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 13th day of March, 2000, personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ to me known personally, and who, being by me duly sworn, deposes and
says that he is the CFO of GenRad, Inc., and that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of Directors, and
said ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ acknowledged said instrument to be the free act and deed
of said corporation.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Notary Public
My commission expires:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, NOTARY PUBLIC
My Commission expires:
September 18, 2003
-14-
IN WITNESS WHEREOF, this Trademark Agreement has been executed as of the
day and year first above written.
GENRAD, INC.
By:
------------------------------------
Name:
Title:
FLEET NATIONAL BANK, as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Vice President
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF SUFFOLK )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this __ day of March, 2000, personally appeared _______________ to
me known personally, and who, being by me duly sworn, deposes and says that he
is the ___________ of GenRad, Inc., and that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of Directors, and
said _______________________ acknowledged said instrument to be the free act and
deed of said corporation.
------------------------------------
Notary Public
My commission expires:
SCHEDULE A
Trademarks and Trademark Registrations
Trademark Registrations --
or United States Patent and Trademark Office
Service ▇▇▇▇ Registration No. Registration Date
------------ ---------------- -----------------
--------------------------------------------------------------------------------
GR 0746,850 March 19, 1963
--------------------------------------------------------------------------------
GR & Des 0746,885 March 19, 1963
--------------------------------------------------------------------------------
GENRAD 1,121,751 July 10, 1979
--------------------------------------------------------------------------------
DIGIBRIDGE 1,123,631 August 7, 1979
--------------------------------------------------------------------------------
HILO 1,647,992 June 18, 1991
--------------------------------------------------------------------------------
GENEVA 1,801,452 October 26, 1993
--------------------------------------------------------------------------------
VXIscan 1,850,612 August 23, 1994
--------------------------------------------------------------------------------
VIPER 2,086,214 ▇▇▇▇▇▇ ▇, ▇▇▇▇
--------------------------------------------------------------------------------
▇▇ TECHNOLOGIES 2,106,954 October 21, 1997
--------------------------------------------------------------------------------
GR TECHNOLOGIES & Des. 2,115,988 November 25, 1997
--------------------------------------------------------------------------------
GR VISION 2,275,830 September 7, 1999
--------------------------------------------------------------------------------
Trademark Pending Applications --
or United States Patent and Trademark Office
Service ▇▇▇▇ Serial No. Filing Date
------------ ---------- -----------
--------------------------------------------------------------------------------
TECHNOLOGY OF KNOWLEDGE 75/301,369 June 2, 1997
--------------------------------------------------------------------------------
THE TECHNOLOGY OF KNOWLEDGE 75/450,407 March 16, 1998
--------------------------------------------------------------------------------
GR SOFTWARE 75/450,552 March 16, 1998
--------------------------------------------------------------------------------
GENRAD 75/450,553 March 16, 1998
--------------------------------------------------------------------------------
GR ACCELERATE 75/450,570 March 16, 1998
--------------------------------------------------------------------------------
GR 75/450,727 March 16, 1998
--------------------------------------------------------------------------------
GR & Des 75/489,857 May 20, 1998
--------------------------------------------------------------------------------
SFLM 75/728,127 June 14, 1999
--------------------------------------------------------------------------------
SFDM 75/728,132 June 14, 1999
--------------------------------------------------------------------------------
ICC Industrial Computer Corp. 75/728,135 June 14, 1999
--------------------------------------------------------------------------------
PXISCAN 75/728,143 June 14, 1999
--------------------------------------------------------------------------------
SCHEDULE A
Foreign Registered Trademarks and Trademark Registrations
REGISTRATIONS
--------------------------------------------------------------------------------
▇▇▇▇ Jurisdiction Registration Issue Date
Number
--------------------------------------------------------------------------------
HITEST Great Britain B1,343,886 February 23, 1988
--------------------------------------------------------------------------------
GR & Des. Japan ▇▇▇▇▇▇▇ November 20, 1987
--------------------------------------------------------------------------------
GR AND DESIGN Taiwan 322952
--------------------------------------------------------------------------------
GENRAD Benelux 337807 December 24, 1975
--------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ January 4, 1977
--------------------------------------------------------------------------------
GENRAD Denmark UR23721976 July 9, 1976
--------------------------------------------------------------------------------
GENERAL RADIO CO. Denmark VR15431957 September 28, 1957
--------------------------------------------------------------------------------
GR & DES. Denmark VR521957 January 12, 1957
--------------------------------------------------------------------------------
GR TECHNOLOGIES Europe 532200 March 19, 1999
--------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ December 30, 1985
--------------------------------------------------------------------------------
VXISCAN France 94 514 210 April 6, 1994
--------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ February 3, 1977
--------------------------------------------------------------------------------
VXISCAN Germany 2087487 December 15, 1994
--------------------------------------------------------------------------------
DIGIBRIDGE Germany 1002006 May 14, 1980
--------------------------------------------------------------------------------
TRACS Germany 1065345 July 3, 1984
--------------------------------------------------------------------------------
GENRAD Great Britain 1056959 December 31, 1975
--------------------------------------------------------------------------------
VXISCAN Great Britain 1566750 March 24, 1994
--------------------------------------------------------------------------------
GR GENRAD & DES Great Britain 1106903 December 28, 1978
--------------------------------------------------------------------------------
BUSBUST Great Britain B1182905 October 6, 1982
--------------------------------------------------------------------------------
TRACS Great Britain B1182907 October 6, 1982
--------------------------------------------------------------------------------
GR & Des. Great Britain 751943 March 14, 1956
--------------------------------------------------------------------------------
GR & DES Great Britain 1106902 March 25, 1981
--------------------------------------------------------------------------------
PXISCAN Israel
--------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ February 25, 1993
--------------------------------------------------------------------------------
VXISCAN Japan ▇▇▇▇▇▇▇ July 18, 1997
--------------------------------------------------------------------------------
GR Technologies & Design Japan ▇▇▇▇▇▇▇ November 6, 1998
--------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ 161,406 November 25, 1977
--------------------------------------------------------------------------------
GR Swedish 167097
--------------------------------------------------------------------------------
▇▇ & ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ April 16, 1986
--------------------------------------------------------------------------------
PENDING APPLICATIONS
--------------------------------------------------------------------------------
▇▇▇▇ Jurisdiction Application Number Filing Date
--------------------------------------------------------------------------------
PXISCAN China 9900151035 December 14, 1999
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ December 14, 1999
--------------------------------------------------------------------------------
PXISCAN Europe 1421999 December 14, 1999
--------------------------------------------------------------------------------
PXISCAN Hungary M9905852 December 14, 1999
--------------------------------------------------------------------------------
PXISCAN Israel Not Yet Assigned Not Yet Assigned
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
▇▇▇▇ Jurisdiction Application Number Filing Date
--------------------------------------------------------------------------------
PXISCAN Japan H11-114,649 December 14, 1999
--------------------------------------------------------------------------------
PXISCAN Korea 40199947960 December 14, 1999
--------------------------------------------------------------------------------
PXISCAN Maylasia 99/12724 December 14, 1999
--------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ December 14, 1999
--------------------------------------------------------------------------------
GR TECHNOLOGIES & Design Singapore 5430/97 May 12, 1997
--------------------------------------------------------------------------------
GR TECHNOLOGIES & Design Singapore 5431/97 May 12, 1997
--------------------------------------------------------------------------------
PXISCAN Singapore T99/14593J December 14, 1999
--------------------------------------------------------------------------------
PXISCAN Taiwan 88062604 December 14, 1999
--------------------------------------------------------------------------------
EXHIBIT 1
ASSIGNMENT OF TRADEMARKS AND SERVICE MARKS (U.S.)
WHEREAS, GenRad, Inc., a corporation organized and existing under the laws
of the Commonwealth of Massachusetts, having a place of business at ▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the "Assignor"), has adopted and
used and is using the trademarks and service marks (the "Marks") identified on
the Annex hereto, and is the owner of the registrations of and pending
registration applications for such Marks in the United States Patent and
Trademark Office identified on such Annex; and
WHEREAS, __________________________________, a _______________________
organized and existing under the laws of the State of _______________________,
having a place of business at ______________________________________ (the
"Assignee"), is desirous of acquiring the Marks and the registrations thereof
and registration applications therefor;
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, the Assignor does hereby assign, sell and transfer unto the
Assignee all right, title and interest in and to the Marks, together with (a)
the registrations of and registration applications for the Marks, (b) the
goodwill of the business symbolized by and associated with the Marks and the
registrations thereof, and (c) the right to ▇▇▇ and recover for, and the right
to profits or damages due or accrued arising out of or in connection with, any
and all past, present or future infringements or dilution of or damage or injury
to the Marks or the registrations thereof or such associated goodwill.
This Assignment of Trademarks and Service Marks (U.S.) is intended to and
shall take effect as a sealed instrument at such time as the Assignee shall
complete this instrument by inserting its name in the second paragraph above and
signing its acceptance of this Assignment of Trademarks and Service Marks (U.S.)
below.
IN WITNESS WHEREOF, the Assignor, by its duly authorized officer, has
executed this assignment, as an instrument under seal, on this __ day of ___,
____.
GENRAD, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CFO
The foregoing assignment of the Marks and the registrations thereof and
registration applications therefor by the Assignor to the Assignee is hereby
accepted as of the __ day of ___, ____.
By:
--------------------------------
Name:
Title:
COMMONWEALTH OF MASSACHUSETTS )
) ss.
COUNTY OF Suffolk )
On this the 13th day of March, 2000, before me appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, the person who signed this instrument, who acknowledged that (s)he is
the CFO of GenRad, Inc. and that being duly authorized (s)he signed such
instrument as a free act on behalf of GenRad, Inc.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Notary Public
[Seal]
My commission expires:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Notary Public
My Commission Expires September 18, ▇▇▇▇
▇▇▇▇▇
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▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Patent and Trademark Office
Service ▇▇▇▇ Registration No. Registration Date
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[List chronologically in ascending numerical order]
Trademark Pending Applications --
or United States Patent and Trademark Office
Service ▇▇▇▇ Serial No. Filing Date
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[List chronologically in ascending numerical order]
PATENT COLLATERAL ASSIGNMENT AND SECURITY AGREEMENT
PATENT COLLATERAL SECURITY AND PLEDGE AGREEMENT, dated as of March 24,
2000, between GenRad, Inc., a Massachusetts corporation having its principal
place of business at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, (the "Assignor"), and Fleet National Bank, a national banking
association having an office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
as agent (hereinafter, in such capacity, the "Agent") for itself and the other
lending institutions (hereinafter, collectively, the "Banks") which are, or may
in the future become, parties to that certain Revolving Credit and Term Loan
Agreement, dated as of March 24, 2000 (as amended and in effect from time to
time, the "Credit Agreement"), among the Assignor, GenRad Holdings Limited
("Holdings"), a corporation organized under the laws of England and Wales,
GenRad Europe Limited ("GenRad Europe"), a corporation organized under the laws
of England and Wales, and GenRad Limited ("GenRad Ltd." and together with
Holdings and GenRad Europe, the "Borrowing Subsidiaries"), a corporation
organized under the laws of England and Wales, the Banks and the Agent.
WHEREAS, it is a condition precedent to the Banks making any loans or
otherwise extending credit to the Assignor and the Borrowing Subsidiaries under
the Credit Agreement that the Assignor execute and deliver to the Agent, for the
benefit of the Banks and the Agent, a patent agreement in substantially the form
hereof;
WHEREAS, the Assignor has executed and delivered to the Agent, for the
benefit of the Banks and the Agent, the Security Agreement (as defined in the
Credit Agreement) dated as of the date hereof, pursuant to which the Assignor
has granted to the Agent, for the benefit of the Banks and the Agent, a security
interest in certain of the Assignor's personal property and fixture assets,
including without limitation the patents and patent applications listed on
Schedule A attached hereto, all to secure the payment and performance of the
Obligations (as defined in the Credit Agreement); and
WHEREAS, this Patent Agreement is supplemental to the provisions contained
in the Security Agreement;
NOW, THEREFORE, in consideration of the premises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS.
Capitalized terms used herein and not otherwise defined herein shall have
the respective meanings provided therefor in the Credit Agreement and the
Security Agreement. In addition, the following terms shall have the meanings set
forth in this ss.1 or elsewhere in this Patent Agreement referred to below:
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Patent Agreement. This Patent Collateral Assignment and Security
Agreement, as amended and in effect from time to time.
Patent Collateral. All of the Assignor's right, title and interest in and
to all of the Patents, the Patent License Rights, and all other Patent Rights,
and all additions, improvements, and accessions to, all substitutions for and
replacements of, and all products and Proceeds (including insurance proceeds) of
any and all of the foregoing, and all books and records and technical
information and data describing or used in connection with any and all such
rights, interests, assets or property.
Patent License Rights. Any and all present rights and interests (whenever
accrued or arising) or future rights and interests of the Assignor pursuant to
any and all past, present and future licensing agreements in favor of the
Assignor, or to which the Assignor is a party, pertaining to any Patents, or
Patent Rights, owned or used by third parties in the past, present or future,
including the right in the name of the Assignor or the Agent to enforce, and ▇▇▇
and recover for, any past, present or future breach or violation of any such
agreement.
Patent Rights. Any and all present rights (whenever accrued or arising) or
future rights in, to and associated with the Patents throughout the world,
whether arising under federal law, state law, common law, foreign law, or
otherwise, including but not limited to the following: all such rights arising
out of or associated with the Patents; the right (but not the obligation) to
register claims under any federal, state or foreign patent law or regulation;
the right (but not the obligation) to ▇▇▇ or bring opposition or bring
cancellation proceedings in the name of the Assignor or the Agent for any and
all past, present and future infringements of or any other damages or injury to
the Patents or the Patent Rights, and the rights to damages or profits due or
accrued arising out of or in connection with any such past, present or future
infringement, damage or injury; and the Patent License Rights.
Patents. All patents and patent applications, whether United States or
foreign, that are owned by the Assignor or in which the Assignor has any right,
title or interest, now or in the future, including but not limited to:
(a) the patents and patent applications listed on Schedule A hereto
(as the same may be amended pursuant hereto from time to time);
(b) all letters patent of the United States or any other country,
and all applications for letters patent of the United States or any other
country;
(c) all re-issues, continuations, divisions, continuations-in-part,
renewals or extensions thereof;
(d) the inventions disclosed or claimed therein, including the right
to make, use, practice and/or sell (or license or otherwise transfer or
dispose of) the inventions disclosed or claimed therein; and
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(e) the right (but not the obligation) to make and prosecute
applications for such Patents.
Proceeds. Any consideration received from the sale, exchange, license,
lease or other disposition or transfer of any right, interest, asset or property
which constitutes all or any part of the Patent Collateral, any value received
as a consequence of the ownership, possession, use or practice of any Patent
Collateral, and any payment received from any insurer or other person or entity
as a result of the destruction or the loss, theft or other involuntary
conversion of whatever nature of any right, interest, asset or property which
constitutes all or any part of the Patent Collateral.
PTO. The United States Patent and Trademark Office.
2. GRANT OF SECURITY INTEREST.
2.1. Security Interest; Assignment of Patents. As collateral security for
the payment and performance in full of all of the Obligations, the Assignor
hereby unconditionally grants to the Agent, for the benefit of the Banks and the
Agent, BY WAY OF COLLATERAL SECURITY, a continuing security interest in and
first priority lien on the Patent Collateral, and pledges and mortgages (but
does not transfer title to) the Patent Collateral to the Agent for the benefit
of the Banks and the Agent. In addition, the Assignor has executed in blank and
delivered to the Agent an assignment of the federally registered patents and
patent applications in substantially the form of Exhibit 1 hereto (the
"Assignment of Patents"). The Assignor hereby authorizes the Agent to complete
as assignee and record with the PTO the Assignment of Patents upon the
occurrence and during the continuance of an Event of Default and the proper
exercise of the Agent's remedies under this Patent Collateral Assignment and the
Security Agreement. Neither the Agent nor any of the Banks assumes any liability
arising in any way by reason of its holding such collateral security.
2.2. Conditional Assignment. In addition to, and not by way of limitation
of, the grant, assignment, pledge and mortgage of the Patent Collateral provided
in ss.2.1, the Assignor grants, assigns, transfers, conveys and sets over to the
Agent, for the benefit of the Banks and the Agent, the Assignor's entire right,
title and interest in and to the Patent Collateral; provided that such grant,
assignment, transfer and conveyance shall be and become of force and effect only
(a) upon or after the occurrence and during the continuance of an Event of
Default and (b) either (i) upon the written demand of the Agent at any time
during such continuance or (ii) immediately and automatically (without notice or
action of any kind by the Agent) upon an Event of Default for which acceleration
of the Loans is automatic under ss.15.1(g) and (h) of the Credit Agreement or
upon the sale or other disposition of or foreclosure upon the Collateral
pursuant to the Security Agreement and applicable law (including the transfer or
other disposition of the Collateral by the Assignor to the Agent or its nominee
in lieu of foreclosure).
2.3. Supplemental to Security Agreement. Pursuant to the Security
Agreement the Assignor has granted to the Agent, for the benefit of the Banks
and the Agent, a continuing security interest in and lien on the Collateral
(including the Patent
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Collateral). The Security Agreement, and all rights and interests of the Agent
in and to the Collateral (including the Patent Collateral) thereunder, are
hereby ratified and confirmed in all respects. In no event shall this Patent
Agreement, the grant, assignment, transfer and conveyance of the Patent
Collateral hereunder, or the recordation of this Patent Agreement (or any
document hereunder) with the PTO, adversely affect or impair, in any way or to
any extent, the Security Agreement, the security interest of the Agent in the
Collateral (including the Patent Collateral) pursuant to the Security Agreement
and this Patent Agreement, the attachment and perfection of such security
interest under the Uniform Commercial Code (including the security interest in
the Patent Collateral), or any present or future rights and interests of the
Agent in and to the Collateral under or in connection with the Security
Agreement, this Patent Agreement or the Uniform Commercial Code. Any and all
rights and interests of the Agent in and to the Patent Collateral (and any and
all obligations of the Assignor with respect to the Patent Collateral) provided
herein, or arising hereunder or in connection herewith, shall only supplement
and be cumulative and in addition to the rights and interests of the Agent (and
the obligations of the Assignor) in, to or with respect to the Collateral
(including the Patent Collateral) provided in or arising under or in connection
with the Security Agreement and shall not be in derogation thereof.
3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
The Assignor represents, warrants and covenants that: (a) Schedule A
attached hereto sets forth a true and complete list of all the patents, rights
to patents and patent applications now owned, licensed, controlled or used by
the Assignor; (b) the issued Patents are subsisting and have not been adjudged
invalid or unenforceable, in whole or in part, and there is no litigation or
proceeding pending concerning the validity or enforceability of the issued
Patents; (c) to the best of the Assignor's knowledge, each of the issued Patents
is valid and enforceable; (d) to the best of the Assignor's knowledge, there is
no infringement by others of the issued Patents or Patent Rights; (e) no claim
has been made that the use of any of the Patents does or may violate the rights
of any third person, and to the best of the Assignor's knowledge there is no
infringement by the Assignor of the patent rights of others; (f) the Assignor is
the sole and exclusive owner of the entire and unencumbered right, title and
interest in and to each of the Patents (other than ownership and other rights
reserved by third party owners with respect to Patents which the Assignor is
licensed to practice or use), free and clear of any liens, charges, encumbrances
and adverse claims, including without limitation pledges, assignments, licenses,
shop rights and covenants by the Assignor not to ▇▇▇ third persons, other than
the security agreement and mortgage created by the Security Agreement and this
Patent Agreement; (g) the Assignor has the unqualified right to enter into this
Patent Agreement and perform its terms and has entered and will enter into
written agreements, unless its failure to enter into such agreements will not
have a materially adverse effect on the business, assets or financial condition
of the Assignor or its Subsidiaries, with each of its present and future
employees, agents, consultants, licensors and licensees which will enable it to
comply with the covenants herein contained; (h) this Patent Agreement, together
with the Security Agreement, will create in favor of the Agent, for the benefit
of the Banks, a valid and perfected first priority
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security interest in the Patent Collateral upon making the filings referred to
in clause (i) of this ss.3; and (i) except for the filing of financing
statements with Secretary of State for the Commonwealth of Massachusetts under
the Uniform Commercial Code and the filing of this Patent Agreement with the
PTO, no authorization, approval or other action by, and no notice to or filing
with, any governmental or regulatory authority, agency or office is required
either (1) for the grant by the Assignor or the effectiveness of the security
interest and assignment granted hereby or for the execution, delivery and
performance of this Patent Agreement by the Assignor, or (2) for the perfection
of or the exercise by the Agent of any of its rights and remedies hereunder.
4. NO TRANSFER OR INCONSISTENT AGREEMENTS.
Without the Agent's prior written consent, the Assignor will not (a)
mortgage, pledge, assign, encumber, transfer, alienate or grant a security
interest in any of the Patent Collateral, or, other than in the ordinary course
of business consistent with its past practices, license any of the Patent
Collateral, or (b) enter into any agreement that is inconsistent with the
Assignor's obligations under this Patent Agreement or the Security Agreement.
5. AFTER-ACQUIRED PATENTS, ETC.
5.1. After-acquired Patents. If, before the Obligations shall have been
finally paid and satisfied in full, the Assignor shall obtain any right, title
or interest in or to any other or new patents, patent applications or patentable
inventions, or become entitled to the benefit of any patent application or
patent or any reissue, division, continuation, renewal, extension, or
continuation-in-part of any of the Patent Collateral or any improvement on any
of the Patent Collateral, the provisions of this Patent Agreement shall
automatically apply thereto and the Assignor shall promptly give to the Agent
notice thereof in writing and execute and deliver to the Agent such documents or
instruments as the Agent may reasonably request further to transfer title
thereto to the Agent, for the benefit of the Banks and the Agent.
5.2. Amendment to Schedule. The Assignor authorizes the Agent to modify
this Patent Agreement, without the necessity of the Assignor's further approval
or signature, by amending Schedule A hereto to include any future or other
Patents or Patent Rights under ss.2 or ss.5 hereof.
6. PATENT PROSECUTION.
6.1. Assignor Responsible. The Assignor shall assume full and complete
responsibility for the prosecution, grant, enforcement or any other necessary or
desirable actions in connection with the Patent Collateral, and shall hold the
Agent and the Banks harmless from any and all costs, damages, liabilities and
reasonable costs and expenses which may be incurred by the Agent or any of the
Banks in connection with the Agent's interest in or title to any of the Patent
Collateral or any other action or failure to act in connection with this Patent
Agreement or the transactions contemplated hereby. In
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respect of such responsibility, the Assignor shall retain patent counsel
acceptable to the Agent.
6.2. Assignor's Duties, etc. The Assignor shall have the duty, through
patent counsel acceptable to the Agent, to prosecute diligently any patent
applications of the Patents pending as of the date of this Patent Agreement or
thereafter, to make application for unpatented but reasonably patentable
inventions and to preserve and maintain all rights in the Patents, including
without limitation the payment when due of all maintenance fees and other fees,
taxes and other expenses which shall be incurred or which shall accrue with
respect to any of the Patents. Any expenses incurred in connection with such
applications and actions shall be borne by the Assignor. The Assignor shall not
abandon any filed patent application, or any pending patent application or
patent, without the consent of the Agent, which consent shall not be
unreasonably withheld. The Agent hereby appoints the Assignor as its agent for
all matters referred to in the foregoing provisions of this ss.6 and agrees to
execute any documents necessary to confirm such appointment. Upon the occurrence
and during the continuance of an Event of Default, the Agent may terminate such
agency by providing written notice of termination to the Assignor.
Notwithstanding anything to the contrary contained in this ss.6.2, so long as no
Event of Default has occurred and is continuing, nothing in this ss.6.2 shall
require the Assignor to obtain the Agent's consent to the selection of any
patent counsel, to prosecute any patent applications, to make an application for
unpatented inventions, to preserve and maintain all rights in the Patents and
not abandon any patent application or patent if the taking of such action is not
in the Assignor's reasonable judgment desirable in the conduct of its business
and the failure to take such action does not have a materially adverse effect on
the business, assets or financial condition of the Assignor or its Subsidiaries.
6.3. Assignor's Enforcement Rights. The Assignor shall have the right,
with the consent of the Agent which shall not be unreasonably withheld, to bring
suit or other action in the Assignor's own name to enforce the Patents and the
Patent Rights; provided, however, so long as no Event of Default shall have
occurred and is continuing, nothing in this ss.6.3 shall require the Assignor to
take such action if the taking of such action is not in the Assignor's
reasonable judgment desirable in the conduct of its business and the failure to
take such action does not have a materially adverse effect on the business,
assets or financial condition of the Assignor and its Subsidiaries. The Agent
shall be required to join in such suit or action as may be necessary to assure
the Assignor's ability to bring and maintain any such suit or action in any
proper forum so long as the Agent is completely satisfied that such joinder will
not subject the Agent or any of the Banks to any risk of liability. The Assignor
shall promptly, upon demand, reimburse and indemnify the Agent and the Banks for
all damages, and reasonable costs and expenses, including legal fees, incurred
by the Agent and any of the Banks pursuant to this ss.6.
6.4. Protection of Patents, etc. In general, the Assignor shall take any
and all such actions (including but not limited to institution and maintenance
of suits, proceedings or actions) as may be necessary or appropriate to properly
maintain, protect, preserve, care for and enforce the Patent Collateral. The
Assignor shall not take
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or fail to take any action, nor permit any action to be taken or not taken by
others under its control, which would affect the validity, grant or enforcement
of any of the Patent Collateral. Notwithstanding anything to the contrary
contained in this ss.6.4, so long as no Event of Default shall have occurred and
is continuing, nothing in this ss.6.4 shall require the Assignor to take any
action or not take any action, as the case may be, if such requirement is not in
the Assignor's reasonable judgment desirable in the conduct of its business and
the failure to take such action or not take such action, as the case may be,
does not have a materially adverse effect on the business, assets or financial
condition of the Assignor and its Subsidiaries.
6.5. Notification by Assignor. Promptly upon obtaining knowledge thereof,
the Assignor will notify the Agent in writing of the institution of, or any
final adverse determination in, any proceeding in the PTO or any similar office
or agency of the United States or any foreign country, or any court, regarding
the validity of any of the Patents or the Assignor's rights, title or interests
in and to any of the Patent Collateral, and of any event which does or
reasonably could materially adversely affect the value of any of the Patent
Collateral, the ability of the Assignor or the Agent to dispose of any of the
Patent Collateral or the rights and remedies of the Agent and the Banks in
relation thereto (including but not limited to the levy of any legal process
against any of the Patent Collateral).
7. REMEDIES.
Upon the occurrence and during the continuation of an Event of Default,
the Agent shall have, in addition to all other rights and remedies given it by
this Patent Agreement, the Credit Agreement, the Security Agreement, and the
other Loan Documents, those allowed by law and the rights and remedies of a
secured party under the Uniform Commercial Code as enacted in the Commonwealth
of Massachusetts and, without limiting the generality of the foregoing, the
Agent may immediately, without demand of performance and without other notice
(except as set forth next below) or demand whatsoever to the Assignor, all of
which are hereby expressly waived, and without advertisement, sell or license at
public or private sale or otherwise realize upon the whole or from time to time
any part of the Patent Collateral, or any interest which the Assignor may have
therein, and after deducting from the proceeds of sale or other disposition of
the Patent Collateral all expenses (including all reasonable expenses for
broker's fees and legal services), shall apply the residue of such proceeds
toward the payment of the Obligations as set forth in the Security Agreement.
Notice of any sale, license or other disposition of any of the Patent Collateral
shall be given to the Assignor at least five (5) business days before the time
that any intended public sale or other disposition of such Patent Collateral is
to be made or after which any private sale or other disposition of such Patent
Collateral may be made, which the Assignor hereby agrees shall be reasonable
notice of such public or private sale or other disposition. At any such sale or
other disposition, the Agent may, to the extent permitted under applicable law,
purchase or license the whole or any part of the Patent Collateral or interests
therein sold, licensed or otherwise disposed of.
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8. COLLATERAL PROTECTION.
If the Assignor shall fail to do any act that it has covenanted to do
hereunder, or if any representation or warranty of the Assignor shall be
breached, the Agent, in its own name or that of the Assignor (in the sole
discretion of the Agent), may (but shall not be obligated to) do such act or
remedy such breach (or cause such act to be done or such breach to be remedied),
and the Assignor agrees promptly to reimburse the Agent for any reasonable cost
or expense incurred by the Agent in so doing.
9. POWER OF ATTORNEY.
If any Event of Default shall have occurred and be continuing, the
Assignor does hereby make, constitute and appoint the Agent (and any officer or
agent of the Agent as the Agent may select in its exclusive discretion) as the
Assignor's true and lawful attorney-in-fact, with the power to endorse the
Assignor's name on all applications, documents, papers and instruments necessary
for the Agent to use any of the Patent Collateral, to practice, make, use or
sell the inventions disclosed or claimed in any of the Patent Collateral, to
grant or issue any exclusive or nonexclusive license of any of the Patent
Collateral to any third person, or necessary for the Agent to assign, pledge,
convey or otherwise transfer title in or dispose of the Patent Collateral or any
part thereof or interest therein to any third person, and, in general, to
execute and deliver any instruments or documents and do all other acts which the
Assignor is obligated to execute and do hereunder. The Assignor hereby ratifies
all that such attorney shall lawfully do or cause to be done by virtue hereof,
and releases the Agent from any claims, liabilities, causes of action or demands
arising out of or in connection with any action taken or omitted to be taken by
the Agent under this power of attorney (except for the Agent's gross negligence
or willful misconduct). This power of attorney shall be irrevocable for the
duration of this Patent Agreement.
10. FURTHER ASSURANCES.
The Assignor shall, at any time and from time to time, and at its expense,
make, execute, acknowledge and deliver, and file and record as necessary or
appropriate with governmental or regulatory authorities, agencies or offices,
such agreements, assignments, documents and instruments, and do such other and
further acts and things (including, without limitation, obtaining consents of
third parties), as the Agent may request or as may be necessary or appropriate
in order to implement and effect fully the intentions, purposes and provisions
of this Patent Agreement, or to assure and confirm to the Agent the grant,
perfection and priority of the Agent's security interest in any of the Patent
Collateral.
11. TERMINATION.
At such time as all of the Obligations have been finally paid and
satisfied in full, this Patent Agreement shall terminate and the Agent shall,
upon the written request and at the expense of the Assignor, execute and deliver
to the Assignor all deeds, assignments and other instruments as may be necessary
or proper to reassign and
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reconvey to and re-vest in the Assignor the entire right, title and interest to
the Patent Collateral previously granted, assigned, transferred and conveyed to
the Agent and the Banks by the Assignor pursuant to this Patent Agreement, as
fully as if this Patent Agreement had not been made, subject to any disposition
of all or any part thereof which may have been made by the Agent and the Banks
pursuant hereto or the Security Agreement.
12. COURSE OF DEALING.
No course of dealing among the Assignor, the Banks and the Agent, nor any
failure to exercise, nor any delay in exercising, on the part of the Agent or
any of the Banks, any right, power or privilege hereunder or under the Security
Agreement shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or thereunder preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.
13. EXPENSES.
Any and all reasonable fees, costs and expenses, of whatever kind or
nature, including the reasonable attorneys' fees and legal expenses incurred by
the Agent in connection with the preparation of this Patent Agreement and all
other documents relating hereto, the consummation of the transactions
contemplated hereby or the enforcement hereof, the filing or recording of any
documents (including all taxes in connection therewith) in public offices, the
payment or discharge of any taxes, counsel fees, maintenance fees, encumbrances
or otherwise protecting, maintaining or preserving any of the Patent Collateral,
or in defending or prosecuting any actions or proceedings arising out of or
related to any of the Patent Collateral, shall be borne and paid by the Assignor
on demand.
14. OVERDUE AMOUNTS.
Until paid, all amounts due and payable by the Assignor hereunder shall be
a debt secured by the Patent Collateral and other Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
15. NO ASSUMPTION OF LIABILITY; INDEMNIFICATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NEITHER THE
AGENT NOR ANY BANK ASSUMES ANY LIABILITIES OF THE ASSIGNOR WITH RESPECT TO ANY
CLAIM OR CLAIMS REGARDING THE ASSIGNOR'S OWNERSHIP OR PURPORTED OWNERSHIP OF, OR
RIGHTS OR PURPORTED RIGHTS ARISING FROM, ANY OF THE PATENT COLLATERAL OR ANY
PRACTICE, USE, LICENSE OR SUBLICENSE THEREOF, OR ANY PRACTICE, MANUFACTURE, USE
OR SALE OF ANY OF THE INVENTIONS DISCLOSED OR CLAIMED THEREIN, WHETHER ARISING
OUT OF ANY PAST, CURRENT OR FUTURE EVENT, CIRCUMSTANCE, ACT OR OMISSION OR
OTHERWISE. ALL OF
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SUCH LIABILITIES SHALL BE EXCLUSIVELY BORNE BY THE ASSIGNOR, AND THE ASSIGNOR
SHALL INDEMNIFY THE AGENT AND THE BANKS FOR ANY AND ALL COSTS, EXPENSES, DAMAGES
AND CLAIMS, INCLUDING LEGAL FEES, INCURRED BY THE AGENT OR ANY BANK WITH RESPECT
TO SUCH LIABILITIES.
16. RIGHTS AND REMEDIES CUMULATIVE.
All of the Agent's and the Banks' rights and remedies with respect to the
Patent Collateral, whether established hereby or by the Security Agreement or by
any other agreements or by law, shall be cumulative and may be exercised
singularly or concurrently. This Patent Agreement is supplemental to the
Security Agreement, and nothing contained herein shall in any way derogate from
any of the rights or remedies of the Agent and the Banks contained therein.
Nothing contained in this Patent Agreement shall be deemed to extend the time of
attachment or perfection of or otherwise impair the security interest in any of
the Patent Collateral granted to the Agent for the benefit of the Banks and the
Agent under the Security Agreement.
17. NOTICES.
All notices and other communications made or required to be given pursuant
to this Patent Agreement shall be in writing and shall be delivered by hand,
mailed by United States registered or certified first-class mail, postage
prepaid, or sent by telegraph, telecopy or telex and confirmed by delivery via
courier or postal service, addressed as follows:
(a) if to the Assignor, at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President and
Chief Financial Officer, or at such other address for notice as the
Assignor shall last have furnished in writing to the person giving the
notice; and
(b) if to the Agent, at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President, or at such other
address for notice as the Agent shall last have furnished in writing to
the person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand to a responsible officer
of the party to which it is directed, at the time of the receipt thereof by such
officer, (ii) if sent by registered or certified first-class mail, postage
prepaid, two (2) Business Days after the posting thereof, and (iii) if sent by
telegraph, telecopy, or telex, at the time of the dispatch thereof, if in normal
business hours in the country of receipt, or otherwise at the opening of
business on the following Business Day.
18. AMENDMENT AND WAIVER.
This Patent Agreement is subject to modification only by a writing signed
by the Agent (with the consent of the Majority Banks) and the Assignor, except
as provided in
-11-
ss.5.2. The Agent shall not be deemed to have waived any right hereunder unless
such waiver shall be in writing and signed by the Agent and the Majority Banks.
A waiver on any one occasion shall not be construed as a bar to or waiver of any
right on any future occasion.
19. GOVERNING LAW; CONSENT TO JURISDICTION.
THIS PATENT AGREEMENT IS INTENDED TO TAKE EFFECT AS A SEALED INSTRUMENT
AND SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS. The Assignor agrees that any suit for the
enforcement of this Patent Agreement may be brought in the courts of the
Commonwealth of Massachusetts or any federal court sitting therein and consents
to the non-exclusive jurisdiction of such court and to service of process in any
such suit being made upon the Assignor by mail at the address specified in
ss.17. The Assignor hereby waives any objection that it may now or hereafter
have to the venue of any such suit or any such court or that such suit is
brought in an inconvenient court.
20. WAIVER OF JURY TRIAL.
THE ASSIGNOR WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION
OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS PATENT AGREEMENT,
ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF ANY SUCH RIGHTS OR
OBLIGATIONS. Except as prohibited by law, the Assignor waives any right which it
may have to claim or recover in any litigation referred to in the preceding
sentence any special, exemplary, punitive or consequential damages or any
damages other than, or in addition to, actual damages. The Assignor (a)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or any Bank has represented, expressly or otherwise, that
the Agent or any Bank would not, in the event of litigation, seek to enforce the
foregoing waivers, and (b) acknowledges that, in entering into the Credit
Agreement and the other Loan Documents to which the Agent or any Bank is a
party, the Agent and the Banks are relying upon, among other things, the waivers
and certifications contained in this ss.20.
21. MISCELLANEOUS.
The headings of each section of this Patent Agreement are for convenience
only and shall not define or limit the provisions thereof. This Patent Agreement
and all rights and obligations hereunder shall be binding upon the Assignor and
its respective successors and assigns, and shall inure to the benefit of the
Agent, the Banks and their respective successors and assigns. In the event of
any irreconcilable conflict between the provisions of this Patent Agreement and
the Credit Agreement, or between this Patent Agreement and the Security
Agreement, the provisions of the Credit Agreement or the Security Agreement, as
the case may be, shall control. If any term of this Patent Agreement shall be
held to be invalid, illegal or unenforceable, the validity of all other terms
hereof shall in no way be affected thereby, and this Patent Agreement shall be
-12-
construed and be enforceable as if such invalid, illegal or unenforceable term
had not been included herein. The Assignor acknowledges receipt of a copy of
this Patent Agreement.
[Remainder of Page Left Intentionally Blank]
IN WITNESS WHEREOF, this Patent Agreement has been executed as of the day
and year first above written.
GENRAD, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: CFO
FLEET NATIONAL BANK, as Agent
By:
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Vice President
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS)
) ss.
COUNTY OF Suffolk )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 13th day of March, 2000, personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ to me known personally, and who, being by me duly sworn, deposes and
says that he is the CFO of GenRad, Inc., and that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of Directors, and
said ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ acknowledged said instrument to be the free act and deed
of said corporation.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Notary Public
My commission expires:
▇▇▇▇▇▇▇ ▇.▇▇▇▇▇▇, Notary Public
My Commission Expires September 18, 2003
IN WITNESS WHEREOF, this Patent Agreement has been executed as of the day
and year first above written.
GENRAD, INC.
By:
------------------------------------
Name:
Title:
FLEET NATIONAL BANK, as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Vice President
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS)
) ss.
COUNTY OF )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ____ day of March, 2000, personally appeared ________________
to me known personally, and who, being by me duly sworn, deposes and says that
he is the ___ of GenRad, Inc., and that said instrument was signed and sealed on
behalf of said corporation by authority of its Board of Directors, and said
________________ acknowledged said instrument to be the free act and deed of
said corporation.
------------------------------
Notary Public
My commission expires:
SCHEDULE A
ISSUED AND PENDING PATENTS
Patents Issued by U.S. Patent
and Trademark Office
--------------------------------------------------------------------------------
Issue Date Patent No. Inventors Title
--------------------------------------------------------------------------------
July 10, 1984 4,459,693 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Method of and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Apparatus for the
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Automatic Diagnosis
of the Failure of
Electrical Devices
Connected to Common
Bus Nodes
--------------------------------------------------------------------------------
October 28, 1986 4,620,304 ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇. Method and Apparatus
▇▇▇▇▇▇▇ ▇. for Multiplexed
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Automatic Testing of
▇. ▇▇▇▇▇▇ Electronic Circuits
and the Like
--------------------------------------------------------------------------------
August 11, 1987 4,686,391 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Fast-Acting
Comparison Circuit
--------------------------------------------------------------------------------
November 1, 1988 4,782,324 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Digital Signal
Synthesizer
--------------------------------------------------------------------------------
August 29, 1989 4,862,069 ▇▇▇▇ ▇. ▇▇▇▇▇ Method of In-Circuit
Testing
--------------------------------------------------------------------------------
September 5, 1989 4,864,219 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Method and Apparatus
for Verifying Proper
Placement of
Integrated Circuits
on Circuit Boards
--------------------------------------------------------------------------------
February 13, 1990 4,901,315 ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ Integrated Data and
Timing Circuitry for
Automatic Circuit
Tester
--------------------------------------------------------------------------------
June 5, 1990 4,931,742 ▇▇▇▇ ▇▇▇▇▇▇ Self-Protecting Power
▇▇▇▇▇ ▇▇▇▇▇▇▇ Bus Testing System
--------------------------------------------------------------------------------
August 12, 1990 4,951,283 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Method and Apparatus
▇▇▇▇ ▇▇▇▇▇▇▇ for Circuit Board
Testing with
Controlled Backdrive
Stress
--------------------------------------------------------------------------------
December 11, 1990 4,977,370 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Apparatus and Method
for Circuit Board
Testing
--------------------------------------------------------------------------------
June 25, 1991 5,027,298 ▇▇▇▇▇ ▇▇▇▇▇▇ Low-Dead-Time
Interval Timer
--------------------------------------------------------------------------------
October 15, 1991 5,057,775 ▇▇▇▇▇ ▇. ▇▇▇▇ Method of Testing
Control Matrices for
Flat-Panal Displays
--------------------------------------------------------------------------------
March 31, 1992 5,101,150 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Automatic Circuit
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Tester with Separate
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Instrument and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Scanner Buses
--------------------------------------------------------------------------------
April 7, 1992 5,103,109 ▇▇▇▇ ▇▇▇▇▇▇ Ground-Loop
▇▇▇▇▇ ▇▇▇▇▇▇ Interruption Circuit
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------------------------------------------
June 23, 1992 5,124,636 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Tester Interconnect
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ System
--------------------------------------------------------------------------------
June 23, 1992 5,124,638 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Automatic Circuit
Tester Employing a
Three-Dimensional
Switch-Matrix Layout
--------------------------------------------------------------------------------
June 30, 1992 5,127,009 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Method and Apparatus
for Circuit Board
Testing with
Controlled Backdrive
Stress
--------------------------------------------------------------------------------
December 15, 1992 5,172,377 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Method for Testing
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Mixed Scan and
Non-Scan Circuitry
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Issue Date Patent No. Inventors Title
--------------------------------------------------------------------------------
September 7, 1993 5,243,272 ▇▇▇▇▇ ▇. ▇▇▇▇ Method of Testing
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Control Matrices
Employing Distributed
Source Return
--------------------------------------------------------------------------------
January 25, 1994 5,282,211 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Slip Detection During
▇▇▇▇▇▇▇ ▇. Bit-Error-Rate
Fichtenbaum Measurement
--------------------------------------------------------------------------------
February 21, 1995 5,391,993 ▇▇▇▇▇ ▇▇▇▇▇▇ Capacitive
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Open-Circuit Test
Employing Threshold
Determinatio
--------------------------------------------------------------------------------
May 9, 1995 5,414,715 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Method for Automatic
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Open-Circuit
Detection
--------------------------------------------------------------------------------
June 20, 1995 5,426,372 ▇▇▇▇ ▇. ▇▇▇▇▇ Probe for Capacitive
Open-Circuit Tests
--------------------------------------------------------------------------------
October 10, 1995 5,457,380 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Circuit-Test Fixture
That Includes
Shorted-Together
Probes
--------------------------------------------------------------------------------
January 23, 1996 5,486,753 ▇▇▇▇▇ ▇▇▇▇▇▇ Simultaneous
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Capacitive
Open-Circuit Testing
--------------------------------------------------------------------------------
April 9, 1996 5,506,510 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Adaptive Alignment
Probe Fixture for
Circuit Board Tester
--------------------------------------------------------------------------------
August 20, 1996 5,548,525 ▇▇▇▇ ▇. ▇▇▇▇▇ Method and Apparatus
▇▇▇▇ ▇▇▇▇ for Pin Assignment in
▇▇▇▇ ▇▇▇▇▇ Automatic Circuit
Testers
--------------------------------------------------------------------------------
February 11, 1997 5,602,490 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Connector for
Automatic Test
Equipment
--------------------------------------------------------------------------------
March 25, 1997 5,615,219 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ System and Method of
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Programming a
▇▇▇▇▇▇▇ ▇▇▇ Multistation Testing
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ System
--------------------------------------------------------------------------------
April 7, 1998 5,736,862 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ System for Detecting
Faults in Connections
Between Integrated
Circuits and Circuit
Board Traces(CIP of
16384-0220 which
abandoned)
--------------------------------------------------------------------------------
May 5, 1998 5,748,672 ▇▇▇▇ ▇. ▇▇▇▇ System for Measuring
▇▇▇▇ ▇. ▇▇▇▇▇ Jitter in a
Non-Binary Digital
Signal
--------------------------------------------------------------------------------
July 28, 1998 5,786,697 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Capacitive
▇▇▇▇▇ ▇▇▇▇▇▇ Open-Circuit and
Short-Circuit Tests
of Component
Connections to
Circuit Boards
--------------------------------------------------------------------------------
September 22, 1998 5,811,980 ▇▇▇▇ ▇▇▇▇▇ Test System for
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Determining the
Orientation of
Components on a
Circuit Board
--------------------------------------------------------------------------------
January 19, 1999 5,861,743 ▇▇▇▇▇▇▇ ▇▇▇ Hybrid Scanner for
▇▇▇▇▇ ▇▇▇▇▇▇ Use in an Improved
MDA Tester
--------------------------------------------------------------------------------
Patents Pending with U.S. Patent
and Trademark Office
--------------------------------------------------------------------------------
Filing Date Application No. Inventors Title
--------------------------------------------------------------------------------
January 14, 1999 09/231,001 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Direct-Measurement
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Provision of Safe
▇▇▇▇ ▇. ▇▇▇▇▇ Backdrive Levels
--------------------------------------------------------------------------------
January 14, 1999 09/231,049 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Circuit-Board Tester
Jak Eskici with Backdrive-Based
▇▇▇▇▇▇▇ ▇▇▇▇ Burst Timing
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Filing Date Application No. Inventors Title
--------------------------------------------------------------------------------
January 28, 1999 09/231,100 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Method and Apparatus
▇▇▇▇▇ ▇. Madam for Asynchronous
Transaction
Processing
--------------------------------------------------------------------------------
April 9, 1999 09/289,173 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Method and Apparatus
▇▇▇▇▇ ▇. Madam for Load Balancing in
a Distributed Object
Architecture
--------------------------------------------------------------------------------
June 14, 1999 09/339,724 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Method and Apparatus
for Distributed
Database Access
--------------------------------------------------------------------------------
FOREIGN ISSUED AND PENDING PATENTS
Issued Patents
--------------------------------------------------------------------------------
Issue Patent No. Jurisdiction Inventors Title
Date
--------------------------------------------------------------------------------
August 1,129,106 Canada ▇▇▇▇▇ ▇. ▇▇▇▇ Method and
3, 1992 Apparatus for
Phase-Sensitive
Detection
--------------------------------------------------------------------------------
April 1,165,395 Canada ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Method of
10, 1984 Electrical
Short Testing and
the Like
--------------------------------------------------------------------------------
June 0 611 036 France ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Method for
30, 1999 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Automatic
Open-Circuit
Detection
--------------------------------------------------------------------------------
May 27, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Improved Method
1997 and Apparatus for
Circuit Board
Testing with
Controlled
Backdrive Stress
--------------------------------------------------------------------------------
August ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Automatic Circuit
13, 1997 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Tester with
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Separate
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Instrument and
Scanner Buses
--------------------------------------------------------------------------------
June 0 611 036 Germany ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Method for
30, 1999 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Automatic
Open-Circuit
Detection
--------------------------------------------------------------------------------
August 69221516.6-08 Germany ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Automatic Circuit
13, 1997 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Tester with
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Separate
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Instrument and
Scanner Buses
--------------------------------------------------------------------------------
May 27, 69030755.1-08 Germany ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Improved Method
1997 and Apparatus for
Circuit Board
Testing with
Controlled
Backdrive Stress
--------------------------------------------------------------------------------
May 27, 0415319 Great ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Improved Method
1997 Britain and Apparatus for
Circuit Board
Testing with
Controlled
Backdrive Stress
--------------------------------------------------------------------------------
August 0500310 Great ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Tester with
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Separate
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Instrument and
Scanner Buses
--------------------------------------------------------------------------------
January 2,214,314 Great ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ Integrated Data
2, 1992 Britain and Timing
Circuitry for
Automatic Circuit
Tester
--------------------------------------------------------------------------------
April 2258051 Great ▇▇▇▇▇▇▇ ▇▇▇ Test System for
5, 1995 Britain Calculating the
Propagation
Delays in Signal
Paths Leading to
a Plurality of
Pins Associated
with a Circuit
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Issue Patent No. Jurisdiction Inventors Title
Date
--------------------------------------------------------------------------------
January 2 257 272 Great ▇▇▇▇▇▇▇ ▇▇▇ DC ▇▇▇▇▇
▇, ▇▇▇▇ ▇▇▇▇▇▇▇ Generator
--------------------------------------------------------------------------------
1,936,432 Japan ▇▇▇▇ ▇▇▇▇▇▇▇ Method of
Computerized
In-Circuit
Testing of
Electrical
Component and The
Like with
Automatic
Spurious Signal
Suppression
--------------------------------------------------------------------------------
August 2,680,259 Japan ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Method for
1, 1997 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Automatic
Open-Circuit
Detection
--------------------------------------------------------------------------------
September ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ System for
21, 1999 Detecting Faults
in Connections
Between
Integrated
Circuit and
Circuit Board
Traces
--------------------------------------------------------------------------------
Pending Patents
--------------------------------------------------------------------------------
Filing/ App/Patent No. Jurisdic- Inventors Title
Issue Date tion
--------------------------------------------------------------------------------
May 9, 95303110.1 Europe ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Circuit-Test
1995 Fixture That
Includes
Shorted-Together
Probes
--------------------------------------------------------------------------------
June 96924478.9 Europe ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ System for
11, 1996 Detecting Faults
in Connections
Between
Integrated
Circuit and
Circuit Board
Traces
--------------------------------------------------------------------------------
August 95909369.1 Europe ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Open-Circuit Test
Employing
Threshold
Determination
--------------------------------------------------------------------------------
August 96928118.7 Europe ▇▇▇▇ ▇. ▇▇▇▇ System for
9, 1996 ▇▇▇▇ ▇. ▇▇▇▇▇ Measuring Jitter
in a Non-Binary
Digital Signal
--------------------------------------------------------------------------------
August 96113396.4 Europe ▇▇▇▇ ▇▇▇▇▇ Test System for
21, 1996 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Determining the
Orientation of
Components on a
Circuit Board
--------------------------------------------------------------------------------
December 96309328.1 Europe ▇▇▇▇▇ ▇▇▇▇▇▇ Hybrid Scanner
18, 1996 ▇▇▇▇▇▇▇ ▇▇▇ for Use in an
Improved MDA
Tester
--------------------------------------------------------------------------------
December 99 125 021.8 Europe ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇
▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ Tester with
▇▇▇▇▇▇▇ ▇▇▇▇ Backdrive-Based
Burst Timing
--------------------------------------------------------------------------------
December 99 125 022 6 Europe ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Direct-
15, 1999 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Measurement
▇▇▇▇ ▇. ▇▇▇▇▇ Provision of Safe
Backdrive Levels
--------------------------------------------------------------------------------
August H02-227,902 Japan ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Method and
29, 1990 Apparatus for
Circuit Board
Testing with
Controlled
Backdrive Stress
--------------------------------------------------------------------------------
February H04-33,264 Japan ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Tester
20, 1992 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Interconnect
System
--------------------------------------------------------------------------------
February H04-33,265 Japan ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Automatic Circuit
20, 1992 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Tester with
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Separate
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Instrument and
Scanner Buses
--------------------------------------------------------------------------------
August H04-216,828 Japan ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Slip Detection
14, 1992 ▇▇▇▇▇▇▇ ▇. During
Fichtenbaum Bit-Error-Rate
Measurement
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Filing/ App/Patent No. Jurisdic- Inventors Title
Issue Date tion
--------------------------------------------------------------------------------
July H06-176,462 Japan ▇▇▇▇ ▇. ▇▇▇▇▇ Probe for
28, 1994 Capacitive
Open-Circuit
Tests
--------------------------------------------------------------------------------
January H07-520,213 ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Open-Circuit Test
Employing
Threshold
Determination
--------------------------------------------------------------------------------
May 11, ▇▇▇▇▇▇/▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Circuit-Test
1995 Fixture That
Includes Shorted-
Together Probes
--------------------------------------------------------------------------------
June ▇▇▇-▇▇▇-▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ System for
11, 1996 Detecting Faults
in Connections
Between
Integrated
Circuit and
Circuit Board
Traces
--------------------------------------------------------------------------------
August H09-509,382 Japan ▇▇▇▇ ▇. ▇▇▇▇ System for
9, 1996 ▇▇▇▇ ▇. ▇▇▇▇▇ Measuring Jitter
in a Non-Binary
Digital Signal
--------------------------------------------------------------------------------
August H08-219,876 Japan ▇▇▇▇ ▇▇▇▇▇ Test System for
21, 1996 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Determining the
Orientation of
Components on a
Circuit Board
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December H08-343,210 Japan ▇▇▇▇▇▇▇ ▇▇▇ Hybrid ▇▇▇▇▇▇▇
▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ for Use in an
Improved MDA
Tester
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January 2000-006486 Japan ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Direct-
14, 2000 ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Measurement
▇▇▇▇ ▇. ▇▇▇▇▇ Provision of Safe
Backdrive Levels
--------------------------------------------------------------------------------
January PCT/US00/02284 PCT ▇▇▇▇▇▇ ▇. Method and
28, 2000 ▇▇▇▇▇▇▇▇▇ Apparatus
for Distributed
Database Access
--------------------------------------------------------------------------------
January PCTPCT/US00/ PCT ▇▇▇▇▇▇ ▇. Method and
28, 2000 02370 ▇▇▇▇▇▇▇▇▇ Apparatus
▇▇▇▇▇ ▇. for Asynchronous
Madam Transaction
Processing
--------------------------------------------------------------------------------
January PCT/US00/02381 PCT ▇▇▇▇▇▇ ▇. Method and
28, 2000 ▇▇▇▇▇▇▇▇▇ Apparatus for
▇▇▇▇▇ ▇. Load Balancing
Madam in a Distributed
Object
Architecture
--------------------------------------------------------------------------------
May 4, ▇▇▇▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Circuit-Test
1995 Fixture That
Includes Shorted-
Together Probes
--------------------------------------------------------------------------------
May 8, 84104542 Taiwan ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Circuit-Test
1995 Fixture That
Includes Shorted-
Together
Probes
--------------------------------------------------------------------------------
EXHIBIT 1
ASSIGNMENT OF PATENT COLLATERAL (U.S.)
WHEREAS, GenRad, Inc., a corporation organized and existing under the laws
of the Commonwealth of Massachusetts, having a place of business at ▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (the "Assignor"), is the owner of
the patent applications and patents (the "Patents") identified on the Annex
hereto; and
WHEREAS, _______________, a ______________ organized and existing under
the laws of the State of _______________, having a place of business at
________________ (the "Assignee"), is desirous of acquiring the Patents and the
registration applications therefor;
NOW, THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, the Assignor does hereby assign, sell and transfer unto the
Assignee all right, title and interest in and to the Patents, together with (a)
registration applications for the Patents, and (b) the right to ▇▇▇ and recover
for, and the right to profits or damages due or accrued arising out of or in
connection with, any and all past, present or future infringements or dilution
of or damage or injury to the Patents or the registrations thereof.
This Assignment of Patents (U.S.) is intended to and shall take effect as
a sealed instrument at such time as the Assignee shall complete this instrument
by inserting its name in the second paragraph above and signing its acceptance
of this Assignment of Patents (U.S.) below.
IN WITNESS WHEREOF, the Assignor, by its duly authorized officer, has
executed this assignment, as an instrument under seal, on this _____ day of
______________.
GENRAD, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇,CFO
The foregoing assignment of the Patents and the registration applications
therefor by the Assignor to the Assignee is hereby accepted as of the _____ day
of _______________.
By:
------------------------------------
Name:
Title:
COMMONWEALTH OF MASSACHUSETTS)
) ss.
COUNTY OF Suffolk )
On this the 13th day of March, 2000, before me appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, the person who signed this instrument, who acknowledged that (s)he is
the CFO of GenRad, Inc. and that being duly authorized (s)he signed such
instrument as a free act on behalf of GenRad, Inc.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Notary Public
[Seal]
My commission expires:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Notary Public
My commission Expires September 18, 2003
ANNEX
ISSUED AND PENDING PATENTS
Patents Issued by U.S. Patent
and Trademark Office
Patent No. Issue Date Inventor(s) Title
---------- ---------- ----------- -----
Patents Pending with U.S. Patent
and Trademark Office
Serial No. Filing Date Title
---------- ----------- -----
SECURITY AGREEMENT
SECURITY AGREEMENT, dated as of ▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
Inc., a Delaware corporation (the "Company"), and Fleet National Bank, a
national banking association, as agent (hereinafter, in such capacity, the
"Agent") for itself and the other lending institutions (hereinafter,
collectively, the "Banks") which are or may become parties to that certain
Revolving Credit and Term Loan Agreement, dated as of March 24, 2000 (as
amended and in effect from time to time, the "Credit Agreement"), among the
Company, GenRad Holdings Limited ("Holdings"), a corporation organized under
the laws of England and Wales, GenRad Europe Limited ("GenRad Europe"), a
corporation organized under the laws of England and Wales, and GenRad Limited
("GenRad Ltd." and together with the Holdings and GenRad Europe, the
"Borrowing Subsidiaries"), a corporation organized under the laws of England
and Wales, the Banks and the Agent.
WHEREAS, it is a condition precedent to the Banks making any loans or
otherwise extending credit to the Company and the Borrowing Subsidiaries under
the Credit Agreement that the Company execute and deliver to the Agent, for the
benefit of the Banks and the Agent, a security agreement in substantially the
form hereof; and
WHEREAS, the Company wishes to grant security interests in favor of the
Agent, for the benefit of the Banks and the Agent, as herein provided;
NOW, THEREFORE, in consideration of the promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms used herein without definitions
shall have the respective meanings provided therefor in the Credit Agreement.
All terms defined in the Uniform Commercial Code of the Commonwealth of
Massachusetts and used herein shall have the same definitions herein as
specified therein; provided, however, that the term "instrument" shall be such
term as defined in Article 9 of the Uniform Commercial Code of such jurisdiction
rather than Article 3.
2. Grant of Security Interest.
2.1. Collateral Granted. The Company hereby grants to the Agent, for
the benefit of the Banks and the Agent, to secure the payment and
performance in full of all of the Obligations, a security interest in and
so pledges and assigns to the Agent, for the benefit of the Banks and the
Agent, the following properties, assets and rights of the Company,
wherever located, whether now owned or hereafter acquired or arising, and
all proceeds and products thereof (all of the same being hereinafter
called the "Collateral"):
All personal and fixture property of every kind and nature
including without limitation all furniture, fixtures, equipment, raw
-2-
materials, inventory, other goods, accounts, contract rights, rights
to the payment of money, insurance refund claims and all other
insurance claims and proceeds, tort claims, chattel paper,
documents, instruments, securities and other investment property,
deposit accounts, rights to proceeds of letters of credit and all
general intangibles including, without limitation, all tax refund
claims, license fees, patents, patent applications, trademarks,
trademark applications, trade names, copyrights, copyright
applications, rights to ▇▇▇ and recover for past infringement of
patents, trademarks and copyrights, computer programs, computer
software, engineering drawings, service marks, customer lists,
goodwill, and all licenses, permits, agreements of any kind or
nature pursuant to which the Company possesses, uses or has
authority to possess or use property (whether tangible or
intangible) of others or others possess, use or have authority to
possess or use property (whether tangible or intangible) of the
Company, and all recorded data of any kind or nature, regardless of
the medium of recording including, without limitation, all software,
writings, plans, specifications and schematics.
2.2. Delivery of Instruments, etc.
(a) Pursuant to the terms hereof, the Company has endorsed,
assigned and delivered to the Agent all negotiable or non-negotiable
instruments, certificated securities and chattel paper pledged by it
hereunder, together with instruments of transfer or assignment duly
executed in blank as the Agent may have specified. In the event that
the Company shall, after the date of this Agreement, acquire any
other negotiable or non-negotiable instruments, certificated
securities or chattel paper to be pledged by it hereunder, the
Company shall forthwith endorse, assign and deliver the same to the
Agent, accompanied by such instruments of transfer or assignment
duly executed in blank as the Agent may from time to time specify.
(b) To the extent that any securities now or hereafter
acquired by the Company are uncertificated and are issued to the
Company or its nominee directly by the issuer thereof, the Company
shall cause the issuer to note on its books the security interest of
the Agent in such securities and shall cause the issuer, pursuant to
an agreement in form and substance satisfactory to the Agent, to
agree to comply with instructions from the Agent as to such
securities, without further consent of the Company or such nominee.
To the extent that any securities, whether certificated or
uncertificated, or other investment property now or hereafter
acquired by the Company are held by the Company or its nominee
through a securities intermediary or commodity intermediary, the
Company shall, at the request of the Agent, cause such securities
intermediary, or (as the case may be) commodity intermediary,
pursuant to an agreement in form and substance satisfactory to the
Agent, to agree to comply with entitlement orders or other
instructions from the Agent as
-3-
to such securities or other investment property, or (as the case may
be) to apply any value distributed on account of any commodity
contract as directed by the Agent to such commodity intermediary,
without further consent of the Company or such nominee.
(c) To the extent that the Company is a beneficiary under any
written letter of credit now or hereafter issued in favor of the
Company, the Company shall deliver such letter of credit to the
Agent. The Agent shall from time to time, at the request and expense
of the Company, make such arrangements with the Company as are in
the Agent's reasonable judgment necessary and appropriate so that
the Company may make any drawing to which the Company is entitled
under such letter of credit, without impairment of the Agent's
perfected security interest in the Company's rights to proceeds of
such letter of credit or in the actual proceeds of such drawing. At
the Agent's request, the Company shall, for any letter of credit,
whether or not written, now or hereafter issued in favor of the
Company as beneficiary, execute and deliver to the issuer and any
confirmer of such letter of credit an assignment of proceeds form,
in favor of the Agent and satisfactory to the Agent and such issuer
or (as the case may be) such confirmer, requiring the proceeds of
any drawing under such letter of credit to be paid directly to the
Agent for application as provided in the Credit Agreement.
2.3. Excluded Collateral. Notwithstanding the foregoing provisions
of this ss.2, such grant of security interest shall not extend to, and the
term "Collateral" shall not include, any chattel paper and general
intangibles which are now or hereafter held by the Company as licensee,
lessee or otherwise, to the extent that (a) such chattel paper and general
intangibles are not assignable or capable of being encumbered as a matter
of law or under the terms of the license, lease or other agreement
applicable thereto (but solely to the extent that any such restriction
shall be enforceable under applicable law), without the consent of the
licensor or lessor thereof or other applicable party thereto and (b) such
consent has not been obtained; provided, however, that the foregoing grant
of security interest shall extend to, and the term "Collateral" shall
include, (i) any and all proceeds of such chattel paper and general
intangibles to the extent that the assignment or encumbering of such
proceeds is not so restricted and (ii) upon any such licensor, lessor or
other applicable party consent with respect to any such otherwise excluded
chattel paper or general intangibles being obtained, thereafter such
chattel paper or general intangibles as well as any and all proceeds
thereof that might have theretofore have been excluded from such grant of
a security interest and the term "Collateral".
2.4. Stock Pledge Agreement. Concurrently herewith the Company is
executing and delivering to the Agent, for the benefit of the Banks and
the Agent, the Stock Pledge Agreements pursuant to which the Company is
pledging to the Agent, for the benefit of the Banks and the Agent certain
shares of the capital
-4-
stock of its Subsidiaries. Such pledges shall be governed by the terms of
such Stock Pledge Agreements and not by the terms of this Agreement.
2.5. Patent and Trademark Assignments. Concurrently herewith the
Company is also executing and delivering to the Agent, for the benefit of
the Banks and the Agent, the Patent Assignment and the Trademark
Assignment pursuant to which the Company is assigning to the Agent, for
the benefit of the Banks and the Agent, certain Collateral consisting of
patents and patent rights and trademarks, service marks and trademark and
service ▇▇▇▇ rights, together with the goodwill appurtenant thereto. The
provisions of the Patent Assignment and the Trademark Assignment are
supplemental to the provisions of this Agreement, and nothing contained in
the Patent Assignment or the Trademark Assignment shall derogate from any
of the rights or remedies of the Agent or any of the Banks hereunder. Nor
shall anything contained in the Patent Assignment or the Trademark
Assignment be deemed to prevent or extend the time of attachment or
perfection of any security interest in such Collateral created hereby.
3. Title to Collateral, etc. The Company is the owner of the Collateral
free from any adverse lien, security interest or other encumbrance, except for
the security interest created by this Agreement and other liens permitted by the
Credit Agreement. None of the Collateral constitutes, or is the proceeds of,
"farm products" as defined in ss.9-109(3) of the Uniform Commercial Code of the
Commonwealth of Massachusetts. Except as set forth on Schedule 3 hereto, none of
the account debtors in respect of any accounts, chattel paper or general
intangibles and none of the obligors in respect of any instruments included in
the Collateral is a governmental authority subject to the Federal Assignment of
Claims Act.
4. Continuous Perfection. The Company's place of business or, if more than
one, chief executive office is indicated on the Perfection Certificate delivered
to the Agent herewith (the "Perfection Certificate"). The Company will not
change the same, or the name, identity or corporate structure of the Company in
any manner, without providing at least thirty (30) days prior written notice to
the Agent. The Collateral, to the extent not delivered to the Agent pursuant to
ss.2.2, will be kept at those locations listed on the Perfection Certificate and
the Company will not remove the Collateral from such locations (except in the
ordinary course of business consistent with past practices), without providing
at least 30 days prior written notice to the Agent.
5. No Liens. Except for the security interest herein granted and liens
permitted by the Credit Agreement, the Company shall be the owner of the
Collateral free from any lien, security interest or other encumbrance, and the
Company shall defend the same against all claims and demands of all persons at
any time claiming the same or any interests therein adverse to the Agent or any
of the Banks. The Company shall not pledge, mortgage or create, or suffer to
exist a security interest in the Collateral in favor of any person other than
the Agent, for the benefit of the Banks and the Agent, except for liens
permitted by the Credit Agreement.
-5-
6. No Transfers. The Company will not sell or offer to sell or otherwise
transfer the Collateral or any interest therein except as expressly permitted by
ss.11.5.2 of the Credit Agreement.
7. Insurance.
7.1. Maintenance of Insurance. The Company will maintain with
financially sound and reputable insurers insurance with respect to its
properties and business against such casualties and contingencies as shall
be in accordance with general practices of businesses engaged in similar
activities in similar geographic areas. Such insurance shall be in such
minimum amounts that the Company will not be deemed a co-insurer under
applicable insurance laws, regulations and policies and otherwise shall be
in such amounts, contain such terms, be in such forms and be for such
periods as may be reasonably satisfactory to the Agent. In addition, all
such insurance shall be payable to the Agent as loss payee under a
"standard" or "New York" loss payee clause for the benefit of the Banks
and the Agent. Without limiting the foregoing, the Company will (a) keep
all of its physical property insured with casualty or physical hazard
insurance on an "all risks" basis, with broad form flood and earthquake
coverages and electronic data processing coverage, with a full replacement
cost endorsement and an "agreed amount" clause in an amount equal to 100%
of the full replacement cost of such property, (b) maintain all such
workers' compensation or similar insurance as may be required by law and
(c) maintain, in amounts and with deductibles equal to those generally
maintained by businesses engaged in similar activities in similar
geographic areas, general public liability insurance against claims of
bodily injury, death or property damage occurring, on, in or about the
properties of the Company; business interruption insurance; and product
liability insurance.
7.2. Insurance Proceeds. The proceeds of any casualty insurance in
respect of any casualty loss of any of the Collateral shall, subject to
the rights, if any, of other parties with a prior interest in the property
covered thereby, so long as no Default or Event of Default has occurred
and is continuing, be disbursed to the Company for direct application by
the Company solely to the repair or replacement of the Company's property
so damaged or destroyed; provided, however, that cash proceeds in excess
of $250,000 in the aggregate received from claims on insurance by the
Company which have not been committed (as evidenced by a binding written
contract) by the Company within 180 days of receipt of such proceeds to
the repair or replacement of the property so damaged or destroyed, or, if
so committed, such repair or replacement of the property so damaged or
destroyed shall have not commenced within 270 days of receipt of such
proceeds pursuant to such binding written contract, shall be paid to the
Agent for application pursuant to ss.4.4 of the Credit Agreement.
7.3. Notice of Cancellation, etc. All policies of insurance shall
provide for at least thirty (30) days prior written cancellation notice to
the Agent. In the event of failure by the Company to provide and maintain
insurance as herein
-6-
provided, the Agent may, at its option, provide such insurance and charge
the amount thereof to the Company. To the extent the Agent decides to
provide such insurance the Agent will notify the Borrower of such
election, but any failure by the Agent to give such notice shall not in
any way impair any of its rights hereunder. The Company shall furnish the
Agent with certificates of insurance and policies evidencing compliance
with the foregoing insurance provision.
8. Maintenance of Collateral; Compliance with Law. The Company will keep
the Collateral in good order and repair, ordinary wear and tear excepted, and
will not use the same in violation of law or any policy of insurance thereon.
The Agent, or its designee, may upon prior written notice to the Company inspect
the Collateral at any reasonable time, wherever located; provided, however, that
such notice shall not be required if a Default or Event of Default shall have
occurred and be continuing. The Company will pay promptly when due all taxes,
assessments, governmental charges and levies upon the Collateral or incurred in
connection with the use or operation of such Collateral or incurred in
connection with this Agreement. The Company has at all times operated, and the
Company will continue to operate, its business in compliance with all applicable
provisions of the federal Fair Labor Standards Act, as amended, and with all
applicable provisions of federal, state and local statutes and ordinances
dealing with the control, shipment, storage or disposal of hazardous materials
or substances.
9. Collateral Protection Expenses; Preservation of Collateral.
9.1. Expenses Incurred by Agent. In its discretion, the Agent may
discharge taxes and other encumbrances at any time levied or placed on any
of the Collateral, make repairs thereto and pay any necessary filing fees.
The Company agrees to reimburse the Agent on demand for any and all
expenditures so made. The Agent shall have no obligation to the Company to
make any such expenditures, nor shall the making thereof relieve the
Company of any default.
9.2. Agent's Obligations and Duties. Anything herein to the contrary
notwithstanding, the Company shall remain liable under each contract or
agreement comprised in the Collateral to be observed or performed by the
Company thereunder. Neither the Agent nor any Bank shall have any
obligation or liability under any such contract or agreement by reason of
or arising out of this Agreement or the receipt by the Agent or any Bank
of any payment relating to any of the Collateral, nor shall the Agent or
any Bank be obligated in any manner to perform any of the obligations of
the Company under or pursuant to any such contract or agreement, to make
inquiry as to the nature or sufficiency of any payment received by the
Agent or any Bank in respect of the Collateral or as to the sufficiency of
any performance by any party under any such contract or agreement, to
present or file any claim, to take any action to enforce any performance
or to collect the payment of any amounts which may have been assigned to
the Agent or to which the Agent or any Bank may be entitled at any time or
times. The Agent's sole duty with respect to the custody, safe keeping and
physical preservation of the Collateral in its possession, under ss.9-207
of the
-7-
Uniform Commercial Code of the Commonwealth of Massachusetts or otherwise,
shall be to deal with such Collateral in the same manner as the Agent
deals with similar property for its own account.
10. Securities and Deposits. The Agent may at any time after the
occurrence and during the continuance of an Event of Default, at its option,
transfer to itself or any nominee any securities constituting Collateral,
receive any income thereon and hold such income as additional Collateral or
apply it to the Obligations. After the occurrence and during the continuance of
an Event of Default, whether or not any Obligations are due, the Agent may
demand, ▇▇▇ for, collect, or make any settlement or compromise which it deems
desirable with respect to the Collateral. Regardless of the adequacy of
Collateral or any other security for the Obligations, any deposits or other sums
at any time credited by or due from the Agent or any Bank to the Company may at
any time be applied to or set off against any of the Obligations.
11. Notification to Account Debtors and Other Obligors. If an Event of
Default shall have occurred and be continuing, the Company shall, at the request
of the Agent, notify account debtors on accounts, chattel paper and general
intangibles of the Company and obligors on instruments for which the Company is
an obligee of the security interest of the Agent in any account, chattel paper,
general intangible or instrument and that payment thereof is to be made directly
to the Agent or to any financial institution designated by the Agent as the
Agent's agent therefor, and the Agent may itself, if an Event of Default shall
have occurred and be continuing, without notice to or demand upon the Company,
so notify account debtors and obligors. After the making of such a request or
the giving of any such notification, the Company shall hold any proceeds of
collection of accounts, chattel paper, general intangibles and instruments
received by the Company as trustee for the Agent, for the benefit of the Banks
and the Agent, without commingling the same with other funds of the Company and
shall turn the same over to the Agent in the identical form received, together
with any necessary endorsements or assignments. The Agent shall apply the
proceeds of collection of accounts, chattel paper, general intangibles and
instruments received by the Agent to the Obligations, such proceeds to be
immediately entered after final payment in cash or solvent credits of the items
giving rise to them.
12. Further Assurances. The Company, at its own expense, shall do, make,
execute and deliver all such additional and further acts, things, deeds,
assurances and instruments as the Agent may require more completely to vest in
and assure to the Agent and the Banks their respective rights hereunder or in
any of the Collateral, including, without limitation, (a) executing, delivering
and, where appropriate, filing financing statements and continuation statements
under the Uniform Commercial Code, (b) obtaining governmental and other third
party consents and approvals, including without limitation any consent of any
licensor, lessor or other applicable party referred to in ss.2.3, (c) obtaining
waivers from mortgagees and landlords and (d) taking all actions required by
Sections 8-313 and 8-321 of the Uniform Commercial Code (1990) or Sections 8-106
and 9-115 of the Uniform Commercial Code (1994), as applicable in each relevant
jurisdiction, with respect to certificated and uncertificated securities.
-8-
13. Power of Attorney.
13.1. Appointment and Powers of Agent. The Company hereby
irrevocably constitutes and appoints the Agent and any officer or agent
thereof, with full power of substitution, as its true and lawful
attorneys-in-fact with full irrevocable power and authority in the place
and stead of the Company or in the Agent's own name, for the purpose of
carrying out the terms of this Agreement, to take any and all appropriate
action and to execute any and all documents and instruments that may be
necessary or desirable to accomplish the purposes of this Agreement and,
without limiting the generality of the foregoing, hereby gives said
attorneys the power and right, on behalf of the Company, without notice to
or assent by the Company, to do the following:
(a) upon the occurrence and during the continuance of an Event
of Default, generally to sell, transfer, pledge, make any agreement
with respect to or otherwise deal with any of the Collateral in such
manner as is consistent with the Uniform Commercial Code of the
Commonwealth of Massachusetts and as fully and completely as though
the Agent were the absolute owner thereof for all purposes, and to
do at the Company' expense, at any time, or from time to time, all
acts and things which the Agent deems necessary to protect, preserve
or realize upon the Collateral and the Agent's security interest
therein, in order to effect the intent of this Agreement, all as
fully and effectively as the Company might do, including, without
limitation, (i) the filing and prosecuting of registration and
transfer applications with the appropriate federal or local agencies
or authorities with respect to trademarks, copyrights and patentable
inventions and processes, (ii) upon written notice to the Company,
the exercise of voting rights with respect to voting securities,
which rights may be exercised, if the Agent so elects, with a view
to causing the liquidation in a commercially reasonable manner of
assets of the issuer of any such securities and (iii) the execution,
delivery and recording, in connection with any sale or other
disposition of any Collateral, of the endorsements, assignments or
other instruments of conveyance or transfer with respect to such
Collateral; and
(b) to file such financing statements with respect hereto,
with or without the Company's signature, or a photocopy of this
Agreement in substitution for a financing statement, as the Agent
may deem appropriate and to execute in the Company's name such
financing statements and amendments thereto and continuation
statements which may require the Company's signature.
13.2. Ratification by Company. To the extent permitted by law, the
Company hereby ratifies all that said attorneys shall lawfully do or cause
to be done by virtue hereof. This power of attorney is a power coupled
with an interest and shall be irrevocable.
-9-
13.3. No Duty on Agent. The powers conferred on the Agent hereunder
are solely to protect the interests of the Agent and the Banks in the
Collateral and shall not impose any duty upon the Agent to exercise any
such powers. The Agent shall be accountable only for the amounts that it
actually receives as a result of the exercise of such powers and neither
it nor any of its officers, directors, employees or agents shall be
responsible to the Company for any act or failure to act, except for the
Agent's own gross negligence or willful misconduct.
14. Remedies. If an Event of Default shall have occurred and be
continuing, the Agent may, without notice to or demand upon the Company, declare
this Agreement to be in default, and the Agent shall thereafter have in any
jurisdiction in which enforcement hereof is sought, in addition to all other
rights and remedies, the rights and remedies of a secured party under the
Uniform Commercial Code, including, without limitation, the right to take
possession of the Collateral, and for that purpose the Agent may, so far as the
Company can give authority therefor, enter upon any premises on which the
Collateral may be situated and remove the same therefrom. The Agent may in its
discretion require the Company to assemble all or any part of the Collateral at
such location or locations within the state(s) of the Company's principal
office(s) or at such other locations as the Agent may designate. Unless the
Collateral is perishable or threatens to decline speedily in value or is of a
type customarily sold on a recognized market, the Agent shall give to the
Company at least ten (10) Business Days prior written notice of the time and
place of any public sale of Collateral or of the time after which any private
sale or any other intended disposition is to be made. The Company hereby
acknowledges that ten (10) Business Days prior written notice of such sale or
sales shall be reasonable notice. In addition, the Company waives any and all
rights that it may have to a judicial hearing in advance of the enforcement of
any of the Agent's rights hereunder, including, without limitation, its right
following an Event of Default to take immediate possession of the Collateral and
to exercise its rights with respect thereto. To the extent that any of the
Obligations are to be paid or performed by a person other than the Company, the
Company waives and agrees not to assert any rights or privileges which it may
have under ss.9-112 of the Uniform Commercial Code of the Commonwealth of
Massachusetts.
15. No Waiver, etc. The Company waives demand, notice, protest, notice of
acceptance of this Agreement, notice of loans made, credit extended, Collateral
received or delivered or other action taken in reliance hereon and all other
demands and notices of any description. With respect to both the Obligations and
the Collateral, the Company assents to any extension or postponement of the time
of payment or any other indulgence, to any substitution, exchange or release of
or failure to perfect any security interest in any Collateral, to the addition
or release of any party or person primarily or secondarily liable, to the
acceptance of partial payment thereon and the settlement, compromising or
adjusting of any thereof, all in such manner and at such time or times as the
Agent may deem advisable. The Agent shall have no duty as to the collection or
protection of the Collateral or any income thereon, nor as to the preservation
of rights against prior parties, nor as to the preservation of any rights
pertaining thereto beyond the safe custody thereof as set forth in ss.9.2. The
Agent shall not be deemed to have
-10-
waived any of its rights upon or under the Obligations or the Collateral unless
such waiver shall be in writing and signed by the Agent with the consent of the
Majority Banks. No delay or omission on the part of the Agent in exercising any
right shall operate as a waiver of such right or any other right. A waiver on
any one occasion shall not be construed as a bar to or waiver of any right on
any future occasion. All rights and remedies of the Agent with respect to the
Obligations or the Collateral, whether evidenced hereby or by any other
instrument or papers, shall be cumulative and may be exercised singularly,
alternatively, successively or concurrently at such time or at such times as the
Agent deems expedient.
16. Marshalling. Neither the Agent nor any Bank shall be required to
marshal any present or future collateral security (including but not limited to
this Agreement and the Collateral) for, or other assurances of payment of, the
Obligations or any of them or to resort to such collateral security or other
assurances of payment in any particular order, and all of the rights of the
Agent hereunder and of the Agent or any Bank in respect of such collateral
security and other assurances of payment shall be cumulative and in addition to
all other rights, however existing or arising. To the extent that it lawfully
may, the Company hereby agrees that it will not invoke any law relating to the
marshalling of collateral which might cause delay in or impede the enforcement
of the Agent's rights under this Agreement or under any other instrument
creating or evidencing any of the Obligations or under which any of the
Obligations is outstanding or by which any of the Obligations is secured or
payment thereof is otherwise assured, and, to the extent that it lawfully may,
the Company hereby irrevocably waives the benefits of all such laws.
17. Proceeds of Dispositions; Expenses. The Company shall pay to the Agent
on demand any and all reasonable expenses, including reasonable attorneys' fees
and disbursements, incurred or paid by the Agent in protecting, preserving or
enforcing the Agent's rights under or in respect of any of the Obligations or
any of the Collateral. After deducting all of said expenses, the residue of any
proceeds of collection or sale of the Obligations or Collateral shall, to the
extent actually received in cash, be applied to the payment of the Obligations
in such order or preference as is provided in the Credit Agreement, proper
allowance and provision being made for any Obligations not then due. Upon the
final payment and satisfaction in full of all of the Obligations and after
making any payments required by Section 9-504(1)(c) of the Uniform Commercial
Code of the Commonwealth of Massachusetts, any excess shall be returned to the
Company, and the Company shall remain liable for any deficiency in the payment
of the Obligations.
18. Overdue Amounts. Until paid, all amounts due and payable by the
Company hereunder shall be a debt secured by the Collateral and shall bear,
whether before or after judgment, interest at the rate of interest for overdue
principal set forth in the Credit Agreement.
19. Governing Law; Consent to Jurisdiction. THIS AGREEMENT IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE
-11-
COMMONWEALTH OF MASSACHUSETTS. The Company agrees that any suit for the
enforcement of this Agreement may be brought in the courts of the Commonwealth
of Massachusetts or any federal court sitting therein and consents to the
non-exclusive jurisdiction of such court and to service of process in any such
suit being made upon the Company by mail at the address specified in ss.21 of
the Credit Agreement. The Company hereby waives any objection that it may now or
hereafter have to the venue of any such suit or any such court or that such suit
is brought in an inconvenient court.
20. Waiver of Jury Trial. THE COMPANY WAIVES ITS RIGHT TO A JURY TRIAL
WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH THIS AGREEMENT, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE PERFORMANCE OF
ANY SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law, the Company waives
any right which it may have to claim or recover in any litigation referred to in
the preceding sentence any special, exemplary, punitive or consequential damages
or any damages other than, or in addition to, actual damages. The Company (a)
certifies that neither the Agent or any Bank nor any representative, agent or
attorney of the Agent or any Bank has represented, expressly or otherwise, that
the Agent or any Bank would not, in the event of litigation, seek to enforce the
foregoing waivers and (b) acknowledges that, in entering into the Credit
Agreement and the other Loan Documents to which the Agent or any Bank is a
party, the Agent and the Banks are relying upon, among other things, the waivers
and certifications contained in this ss.20.
21. Concerning Revised Article 9 of the Uniform Commercial Code. The
parties acknowledge and agree to the following provisions of this Agreement in
anticipation of the possible application, in one or more jurisdictions to the
transactions contemplated hereby, of the revised Article 9 of the Uniform
Commercial Code in the form or substantially in the form approved by the
American Law Institute and the National Conference of Commissioners on Uniform
State Law and contained in the 1999 official text of Revised Article 9 ("Revised
Article 9").
21.1. Attachment. In applying the law of any jurisdiction in which
Revised Article 9 is in effect, the Collateral is all assets of the
Company, whether or not within the scope of Revised Article 9. The
Collateral shall include, without limitation, the following categories of
assets as defined in Revised Article 9: goods (including inventory,
equipment and any accessions thereto), instruments (including promissory
notes), documents, accounts (including health-care-insurance receivables),
chattel paper (whether tangible or electronic), deposit accounts,
letter-of-credit rights (whether or not the letter of credit is evidenced
by a writing), commercial tort claims, securities and all other investment
property, general intangibles (including payment intangibles and
software), supporting obligations and any and all proceeds of any thereof,
wherever located, whether now owned and hereafter acquired. If the Company
shall at any time, whether or not Revised Article 9 is in effect in any
particular jurisdiction, acquire a commercial tort claim, as defined in
Revised Article 9, the Company shall immediately notify the Agent in a
writing signed by the Company of the brief details thereof and grant to
the Agent in such writing a security interest therein
-12-
and in the proceeds thereof, all upon the terms of this Agreement, with
such writing to be in form and substance satisfactory to the Agent.
21.2. Perfection by Filing. The Agent may at any time and from time
to time, pursuant to the provisions of ss.13, file financing statements,
continuation statements and amendments thereto that describe the
Collateral as all assets of the Company or words of similar effect and
which contain any other information required by Part 5 of Revised Article
9 for the sufficiency or filing office acceptance of any financing
statement, continuation statement or amendment, including whether the
Company is an organization, the type of organization and any organization
identification number issued to the Company. The Company agrees to furnish
any such information to the Agent promptly upon request. Any such
financing statements, continuation statements or amendments may be signed
by the Agent on behalf of the Company, as provided in ss.13, and may be
filed at any time in any jurisdiction whether or not Revised Article 9 is
then in effect in that jurisdiction.
21.3. Other Perfection, etc. The Company shall at any time and from
time to time, whether or not Revised Article 9 is in effect in any
particular jurisdiction, take such steps as the Agent may reasonably
request for the Agent (a) to obtain an acknowledgement, in form and
substance satisfactory to the Agent, of any bailee having possession of
any of the Collateral that the bailee holds such Collateral for the Agent,
(b) to obtain "control" of any investment property, deposit accounts,
letter-of-credit rights or electronic chattel paper (as such terms are
defined in Revised Article 9 with corresponding provisions in Rev. ▇▇.▇▇.
9-104, 9-105, 9-106 and 9-107 relating to what constitutes "control" for
such items of Collateral), with any agreements establishing control to be
in form and substance satisfactory to the Agent, and (c) otherwise to
insure the continued perfection and priority of the Agent's security
interest in any of the Collateral and of the preservation of its rights
therein, whether in anticipation and following the effectiveness of
Revised Article 9 in any jurisdiction.
21.4. Other Provisions. In applying the law of any jurisdiction in
which Revised Article 9 is in effect, the following references to sections
in this Agreement to existing Article 9 of that jurisdiction shall be to
the Revised Article 9 Section of that jurisdiction indicated below:
--------------------------------------------------------------------------
Agreement Section Existing Article 9 Revised Article 9
--------------------------------------------------------------------------
3 ss. 9-103(3) Rev.ss.9-102(a)(34)
--------------------------------------------------------------------------
9.2 ss. 9-207 Rev.ss.9-207
--------------------------------------------------------------------------
12 ss.ss.8-106 and 9-115 (1994) Rev.ss.ss.8-106 and 9-106
--------------------------------------------------------------------------
17 ss. 9-504(1)(c) Rev.ss.ss.9-608(a)(1)(C)
and 9-615(a)(3)
--------------------------------------------------------------------------
21.5. Savings Clause. Nothing contained in this ss.21 shall be
construed to narrow the scope of the Agent's security interest in any of
the Collateral or the
-13-
perfection or priority thereof or to impair or otherwise limit any of the
rights, powers, privileges or remedies of the Agent or any Bank hereunder
except (and then only to the extent) mandated by Revised Article 9 to the
extent then applicable.
22. Miscellaneous. The headings of each section of this Agreement are for
convenience only and shall not define or limit the provisions thereof. This
Agreement and all rights and obligations hereunder shall be binding upon the
Company and its respective successors and assigns, and shall inure to the
benefit of the Agent, the Banks and their respective successors and assigns. If
any term of this Agreement shall be held to be invalid, illegal or
unenforceable, the validity of all other terms hereof shall in no way be
affected thereby, and this Agreement shall be construed and be enforceable as if
such invalid, illegal or unenforceable term had not been included herein. The
Company acknowledges receipt of a copy of this Agreement.
IN WITNESS WHEREOF, intending to be legally bound, the Company has caused
this Agreement to be duly executed as of the date first above written.
GENRAD, MEXICO, INC.
By: ____________________________________
Name:
Title:
Accepted:
FLEET NATIONAL BANK,
as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Vice President
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS)
) ss.
COUNTY OF )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this ______ day of March, 2000, personally appeared ______________
to me known personally, and who, being by me duly sworn, deposes and says that
he is the _____________ of GenRad, Inc., and that said instrument was signed and
sealed on behalf of said corporation by authority of its Board of Directors, and
said ________ acknowledged said instrument to be the free act and deed of said
corporation.
________________________________________
Notary Public
My commission expires:
IN WITNESS WHEREOF, intending to be legally bound, the Company has caused
this Agreement to be duly executed as of the date first above written.
GENRAD, MEXICO, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Deirector/Secretary
Accepted:
FLEET NATIONAL BANK,
as Agent
By: _______________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
Vice President
CERTIFICATE OF ACKNOWLEDGMENT
COMMONWEALTH OF MASSACHUSETTS)
) ss.
COUNTY OF Suffolk )
Before me, the undersigned, a Notary Public in and for the county
aforesaid, on this 13th day of March, 2000, personally appeared ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ to me known personally, and who, being by me duly sworn, deposes and
says that he is the Dir/Secy of GenRad, Inc., and that said instrument was
signed and sealed on behalf of said corporation by authority of its Board of
Directors, and said ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ acknowledged said instrument to be the
free act and deed of said corporation.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Notary Public
My commission expires:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Notary Public
My commission expires September 18, 2003
GUARANTY
GUARANTY, dated as of ▇▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc., a Delaware
corporation (the "Guarantor"), in favor of (i) Fleet National Bank, a national
banking association, as agent (hereinafter, in such capacity, the "Agent") for
itself and the other banking institutions (hereinafter, collectively, the
"Banks") which are or may become parties to that certain Revolving Credit and
Term Loan Agreement, dated as of March 24, 2000 (as amended and in effect from
time to time, the "Credit Agreement"), among GenRad, Inc., a Massachusetts
corporation (the "Company"). GenRad Holdings Limited ("Holdings"), a corporation
organized under the laws of England and Wales, GenRad Europe Limited ("GenRad
Europe"), a corporation organized under the laws of England and Wales, and
GenRad Limited ("GenRad Ltd" and together with the Company, Holdings and GenRad
Europe, the "Borrowers"), a corporation organized under the laws of England and
Wales, the Banks and the Agent and (ii) each of the Banks.
WHEREAS, the Guarantor is a Subsidiary (as defined in the Credit
Agreement) of the Company, and together with the Borrowers, is a member of a
group of related corporations, the success of any one of which is dependent in
part on the success of the other members of such group;
WHEREAS, the Guarantor expects to receive substantial direct and indirect
benefits from the extensions of credit to the Borrowers by the Banks pursuant to
the Credit Agreement (which benefits are hereby acknowledged);
WHEREAS, it is a condition precedent to the Banks making any loans or
otherwise extending credit to the Borrowers under the Credit Agreement that the
Guarantor execute and deliver to the Agent, for the benefit of the Banks and the
Agent, a guaranty substantially in the form hereof; and
WHEREAS, the Guarantor wishes to guaranty each Borrower's obligations to
the Banks and the Agent under or in respect of the Credit Agreement as provided
herein;
NOW, THEREFORE, the Guarantor hereby agrees with the Banks and the Agent
as follows:
1. Definitions. The term "Obligations" and all other capitalized terms
used herein without definition shall have the respective meanings provided
therefor in the Credit Agreement.
2. Guaranty of Payment and Performance. The Guarantor hereby Guarantees to
the Banks and the Agent the full and punctual payment when due (whether at
stated maturity, by required pre-payment, by acceleration or otherwise), as well
as the performance, of all of the Obligations including all such which would
become due but for the operation of the automatic stay pursuant to ss.362(a) of
the Federal Bankruptcy Code and the operation of ss.ss.502(b) and 506(b) of the
Federal Bankruptcy Code. This Guaranty is an absolute, unconditional and
continuing
-2-
guaranty of the full and punctual payment and performance of all of the
Obligations and not of their collectibility only and is in no way conditioned
upon any requirement that the Agent or any Bank first attempt to collect any of
the Obligations from any Borrowers or resort to any collateral security or other
means of obtaining payment. Should any Borrower default in the payment or
performance of any of the Obligations, the obligations of the Guarantor
hereunder with respect to such Obligations in default shall, upon demand by the
Agent, become immediately due and payable to the Agent, for the benefit of the
Banks and the Agent, without demand or notice of any nature, all of which are
expressly waived by the Guarantor Payments by the Guarantor hereunder may be
required by the Agent on any number of occasions. All payments by the Guarantor
hereunder shall be made to the Agent, in such manner and at the place of payment
specified therefor in the Credit Agreement for the account of the Banks and the
Agent.
3. Guarantor's Agreement to Pay Enforcement Costs, etc. The Guarantor
further agrees, as the principal obligor and not as a guarantor only, to pay to
the Agent, on demand, all costs and expenses (including court costs and legal
expenses) incurred or expended by the Agent or any Bank in connection with the
Obligations, this Guaranty and the enforcement thereof, together with interest
on amounts recoverable under this ss.3 from the time when such amounts become
due until payment, whether before or after judgment, at the rate of interest for
overdue principal set forth in the Credit Agreement, provided that if such
interest exceeds the maximum amount permitted to be paid under applicable law,
then such interest shall be reduced to such maximum permitted amount.
4. Waivers by Guarantor; Bank's Freedom to Act. The Guarantor agrees that
the Obligations will be paid and performed strictly in accordance with their
respective terms, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent or any Bank with respect thereto. The Guarantor waives promptness,
diligences, presentment, demand, protest, notice of acceptance, notice of any
Obligations incurred and all other notices of any kind, all defenses which may
be available by virtue of any valuation, stay, moratorium law or other similar
law now or hereafter in effect, any right to require the marshalling of assets
of any Borrower or any other entity or other person primarily or secondarily
liable with respect to any of the Obligations, and all suretyship defenses
generally. Without limiting the generality of the foregoing, the Guarantor
agrees to the provisions of any instrument evidencing, securing or otherwise
executed in connection with any Obligation and agrees that the obligations of
the Guarantor hereunder shall not be released or discharged, in whole or in
part, or otherwise affected by (i) the failure of the Agent or any Bank to
assert any claim or demand or to enforce any right or remedy against any
Borrower or any other entity or other person primarily or secondarily liable
with respect to any of the Obligations; (ii) any extensions, compromise,
refinancing, consolidation or renewals of any Obligation; (iii) any change in
the time, place or manner of payment of any of the Obligations or any
rescissions, waiver, compromise, refinancing, consolidation or other amendments
or modifications of any the terms or provisions of the Credit Agreement, the
Note, the other Loan Documents or any other agreement evidencing, securing or
otherwise executed in
-3-
connection with any of the Obligations, (iv) the addition, substitution or
release of any entity or other person primarily or secondarily liable for any
Obligation; (v) the adequacy of any rights which the Agent or any Bank may have
against any collateral security or other means of obtaining repayment of any of
the Obligations; (vi) the impairment of any collateral securing any of the
Obligations, including without limitation the failure to perfect or preserve any
rights which the Agent or any Bank might have in such collateral security or the
substitution, exchange, surrender, release, loss or destruction of any such
collateral security; or (vii) any other act or omission which might in any
manner or to any extent vary the risk of the Guarantor or otherwise operate as a
release or discharge of the Guarantor, all of which may be done without notice
to the Guarantor. To the fullest extent permitted by law, the Guarantor hereby
expressly waives any and all rights or defenses arising by reason of (A) any
"one action" or "anti-deficiency" law which would otherwise prevent the Agent or
any Bank from bringing any action, including any claim for a deficiency, or
exercising any other right or remedy (including any right of set-off), against
the Guarantor before or after the Agent's or such Bank's commencement or
completion of any foreclosure action, whether judicially, by exercise of power
of sale or otherwise, or (B) any other law which in any other way would
otherwise require any election of remedies by the Agent or any Bank.
5. Unenforceability of Obligations Against Borrowers. If for any reason
any Borrower has no legal existence or is under no legal obligation to discharge
any of the Obligations, or if any of the Obligations have become irrecoverable
from any Borrower by reason of such Borrower's insolvency, bankruptcy or
reorganization or by other operation of law or for any other reason, this
Guaranty shall nevertheless be binding on the Guarantor to the same extent as if
the Guarantor at all times had been the principal obligor or all such
Obligations. In the event that acceleration of the time for payment of any of
the Obligations is stayed upon the insolvency, bankruptcy or reorganization of
any Borrower, or for any other reason, all such amounts otherwise subject to
acceleration under the terms of the Credit Agreement, the Note, the other Loan
Documents or any other agreement evidencing, securing or otherwise executed in
connection with any Obligation shall be immediately due and payable by the
Guarantor.
6. Subrogation; Subordination.
6.1. Waiver of Rights Against Borrowers. Until the final payment and
performance in full of all of the Obligations, the Guarantor shall not
exercise and hereby waives any rights against each of the Borrowers
arising as a result of payment by the Guarantor hereunder, by way of
subrogation, reimbursement, restitution, contribution or otherwise, and
will not prove any claim in competition with the Agent or any Bank in
respect of any payment hereunder in any bankruptcy, insolvency or
reorganization case or proceedings of any nature; the Guarantor will not
claim any setoff, recoupment or counterclaim against any Borrower in
respect of any liability of the Guarantor to such Borrower; and the
Guarantor waives any benefit of and any right to participate in any
collateral security which may be held by the Agent or any Bank.
-4-
6.2. Subordination. The payment of any amounts due with respect to
any indebtedness of any Borrower for money borrowed or credit received now
or hereafter owed to the Guarantor is hereby subordinated to the prior
payment in full of all of the Obligations. The Guarantor agrees that,
after the occurrence of any default in the payment or performance of any
of the Obligations, the Guarantor will not demand, ▇▇▇ for or otherwise
attempt to collect any such indebtedness of any of the Borrowers to the
Guarantor until all of the Obligations shall have been paid in full. If,
notwithstanding the foregoing sentence, the Guarantor shall collect,
enforce or receive any amounts in respect of such indebtedness while any
Obligations are still outstanding, such amounts shall be collected,
enforced and received by the Guarantor at trustee for the Banks and the
Agent and be paid over to the Agent, for the benefit of the Banks and the
Agent, on account of the Obligations without affecting in any manner the
Liability of the Guarantor under the other provisions of this Guaranty.
6.3. Provisions Supplemental. The provisions of this ss.6 shall be
supplemental to and not in derogation of any rights and remedies of the
Banks and the Agent under any separate subordination agreement which the
Agent may at any time and from time to time enter into with the Guarantor
for the benefit of the Banks and the Agent.
7. Security; Setoff. The Guarantor grants to each of the Agent and the
Banks, as security for the full and punctual payment and performance of all of
the Guarantor's obligations hereunder, a continuing lien on and security
interest in all securities or other property belonging to the Guarantor now or
hereafter held by the Agent or such Bank and in all deposits (general or
special, time or demand, provisional or final) and other sums credited by or due
from the Agent or such Bank to the Guarantor or subject to withdrawal by the
Guarantor. Regardless of the adequacy of any collateral security or other means
of obtaining payment of any of the Obligations, each of the Agent and the Banks
is hereby authorized at any time and from time to time, without notice to the
Guarantor (any such notice being expressly waived by the Guarantor) and to the
fullest extent permitted by law, to set off and apply such deposits and other
sums against the obligations of the Guarantor under this Guaranty, whether or
not the Agent or such Bank shall have made any demand under this Guaranty and
although such obligations may be contingent or unmatured.
8. Further Assurances. The Guarantor agrees that it will from time to
time, at the request of the Agent, do all such things and execute all such
documents as the Agent may consider necessary or desirable to give full effect
to this Guaranty and to perfect and preserve the rights and powers of the Banks
and the Agent hereunder. The Guarantor acknowledges and confirms that the
Guarantor itself has established its own adequate means of obtaining from each
Borrower on a continuing basis all information desired by the Guarantor
concerning the financial condition of each Borrower and that the Guarantor will
look to each Borrower and not to the Agent or any Bank in order for the
Guarantor to keep adequately informed of changes in each Borrower's financial
condition.
-5-
9. Termination; Reinstatement. This Guaranty shall remain in full force
and effect until the Agent is given written notice of the Guarantor's intention
to discontinue this Guaranty, notwithstanding any intermediate or temporary
payment or settlement of the whole or any part of the Obligations. No such
notice shall be effective unless received and acknowledged by an officer of the
Agent at the address of the Agent for notices set forth in ss.21 of the Credit
Agreement. No such notice shall affect any rights of the Agent or any Bank
hereunder, including without limitation the rights set forth in ss.ss.4 and 6,
with respect to any Obligations incurred or accrued prior to the receipt of such
notice or any Obligations incurred or accrued pursuant to any contract or
commitment in existence prior to such receipt. This Guaranty shall continue to
be effective or be reinstated, notwithstanding any such notice, if at any time
any payment made or value received with respect to any Obligation is rescinded
or must otherwise be returned by the Agent or any Bank upon the insolvency,
bankruptcy or reorganization of any Borrower, or otherwise, all as though such
payment had not been made or value received.
10. Successors and Assigns. This Guaranty shall be binding upon the
Guarantor, its successors and assigns, and shall inure to the benefit of the
Agent and the Banks and their respective successors, transferees and assigns.
Without limitation the generality of the foregoing sentence, each Bank may
assign or otherwise transfer the Credit Agreement, the Note, the other Loan
Documents or any other agreement or note held by it evidencing, securing or
otherwise executed in connection with the Obligations, or sell participations in
any interest therein, to any other entity or other person, and such other entity
or other person shall thereupon become vested, to the extent set forth in the
agreement evidencing such assignment, transfer or participation, with all the
rights in respect thereof granted to such Bank herein, all in accordance with
ss.20 of the Credit Agreement. The Guarantor may not assign any of its
obligations hereunder.
11. Amendments and Waivers. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by the Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Agent with the
consent of the Majority Banks. No failure on the part of the Agent or any Bank
to exercise, and, no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right.
12. Notices. All notices and other communications called for hereunder
shall be made in writing and, unless otherwise specifically provided herein,
shall be deemed to have been duly made or given when delivered by hand or mailed
first class, postage prepaid, or, in the case of telegraphic or telexed notice,
when transmitted, answer back received; addressed as follows: if to the
Guarantor, c/o GenRad, Inc., ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇. Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Technology Officer, and if to
the Agent, at the address for notices to the Agent set forth in ss.21 of the
Credit Agreement, or at such address as either party may designate in writing to
the other.
-6-
13. Governing Law; Consent to Jurisdiction. THIS GUARANTY IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The Guarantor
agrees that any suit for the enforcement of this Guaranty may be brought in the
courts of the Commonwealth of Massachusetts or any federal court sitting therein
and consents to the nonexclusive jurisdiction of such court and to service of
process in any such suit being made upon the Guarantor by mail at the address
specified by reference in ss.12. The Guarantor hereby waives any objection that
it may now or hereafter have to the venue of any such suit or any such court or
that such suit was brought in an inconvenient court.
14. Waiver of Jury Trial. THE GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
the Guarantor hereby waives any right which it may have to claim or recover in
any litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Guarantor (i) certifies that neither the Agent or the Bank
nor any representative, agent or attorney of the Agent or any Bank has
represented, expressly or otherwise, that the Agent or any Bank would not, in
the event of litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that, in entering into the Credit Agreement and the other Loan
Documents to which the Agent or any Bank is a party, the Agent and the Banks are
relying upon, among other things, the waivers and certifications contained in
this ss.14.
15. Miscellaneous. This Guaranty constitutes the entire agreement of the
Guarantor with respect to the matters set forth herein. The rights and remedies
herein provided are cumulative and not exclusive of any remedies provided by law
or any other agreement, and this Guaranty shall be in addition to any other
guaranty of or collateral security for any of the Obligations. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect
the validity or enforceability of its remaining provisions. Captions are for the
ease of reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty shall be
equally applicable to the singular and plural forms of the terms defined.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
GENRAD MEXICO, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
Title:
SOLVENCY CERTIFICATE
GENRAD, INC.
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
BankBoston, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Vice President
Re: Revolving Credit and Term Loan Agreement
Ladies and Gentlemen:
Reference is hereby made to that certain Revolving Credit and Term Loan
Agreement, dated as of March 24, 2000 (as the same may be amended and in effect
from time to time, the "Credit Agreement"), by and among GenRad, Inc. (the
"Company"), GenRad Holdings Ltd., Genrad Europe Limited, Genrad Limited, Fleet
National Bank and the other lending institutions party thereto (collectively,
the "Banks"), Fleet National Bank and its agent for itself and the other Banks
(the "Agent") and FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. as Arranger. Capitalized
terms which are used herein without definition and which are defined in the
Credit Agreement shall have the same meanings herein as in the Credit Agreement.
This certificate has been duly executed by the chief financial officer of
the Company. The undersigned certifies and represents to the Agent and the Banks
on behalf of the Company and its Subsidiaries that the Company and its
Subsidiaries, on a consolidated and consolidating basis, are, and will be after
the Company and each of its Subsidiaries which are party to any of the Loan
Documents gives effect to the transactions contemplated by the Loan Documents,
Solvent. As used herein "Solvent" means (a) the fair value of the assets of the
Company and its Subsidiaries, as the case may be, exceeds its total liabilities
(including contingent liabilities), (b) the present fair saleable value of the
assets of the Company or such Subsidiary, as the case may be, is not less than
the amount that will be required to pay its probable liability on its debts as
they become absolute and matured, (c) the Company or its Subsidiaries, as the
case may be, does not intend to, and does not believe that it will, incur debts
or liabilities beyond its ability to pay as such debts and liabilities mature,
and (d) neither the Company nor its respective Subsidiary, as the case may be,
is not engaged, and is not about to engage, in business or a transaction for
which its property would constitute an unreasonably small capital.
IN WITNESS WHEREOF, the undersigned has signed this as an instrument under
seal on this 24th day of March 2000.
GENRAD, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
Title:
CLOSING CERTIFICATE
GENRAD, INC
▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Del ▇▇▇▇▇▇▇, Vice President
Re: Revolving Credit and Term Loan Agreement
Ladies and Gentlemen:
Please refer to that certain Revolving Credit and Term Loan Agreement
dated as of March 24, 2000 (as amended and in effect from time to time, the
"Credit Agreement") among GenRad, Inc. (the "Company"), Genrad Holdings Limited
("Holdings"), Genrad Europe Limited ("Genrad Europe"), Genrad Limited ("Genrad
Ltd." and, collectively with the Company, Holdings, and Genrad Europe, the
"Borrowers"), Fleet National Bank and the other lending institutions set forth
on Schedule 1 thereto (collectively, the "Banks"), and Fleet National Bank, as
agent for the Banks (the "Agent"). Capitalized terms defined in the Credit
Agreement and used in this certificate without definition shall have for
purposes of this certificate the meanings assigned to them in the Credit
Agreement.
This certificate has been duly executed by the chief financial officer of
the Company. The undersigned certifies and represents to the Agent and the Banks
on behalf of the Company and its Subsidiaries that on the Closing Date (i) the
Company's pro forma Leverage Ratio does not exceed 1.50:1.00 and (ii) the
Company's pro forma EBITDA on a trailing twelve (12) month basis for the twelve
(12) months most recently ended is not less than $62,500,000.
IN WITNESS WHEREOF, the undersigned has signed this as an instrument under
seal on this 24th day of March, 2000.
GENRAD, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name:
Title: