EXHIBIT 10AE
REVOLVING CREDIT AGREEMENT
AMONG
MELLON BANK, N.A.,
THE FIRST NATIONAL BANK OF BOSTON
AND
HAEMONETICS CORPORATION
DATED AS OF OCTOBER 1, 1996
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT, dated and effective as of October 1, 1996,
by and among HAEMONETICS CORPORATION, (the "Borrower") a Massachusetts
corporation, and MELLON BANK, N.A., a national banking association
(hereinafter called "Mellon"), and THE FIRST NATIONAL BANK OF BOSTON, a
national banking association (hereinafter called "Bank of Boston," and
either Mellon or Bank of Boston, the "Bank," or collectively the "Banks");
PRELIMINARY STATEMENT:
WHEREAS the Banks each have agreed to make available to the Borrower a
Revolving Credit Facility upon all of the terms and conditions herein set
forth;
NOW, THEREFORE, in consideration of their mutual agreements
hereinafter set forth and intending to be legally bound hereby, the Borrower
and the Banks agree as follows:
ARTICLE I
DEFINITIONS: Construction
--------------------------
1.01. Certain Definitions. In addition to other words and terms
defined elsewhere in this Agreement, as used herein the following words and
terms shall have the following meanings, respectively, unless the context
hereof otherwise clearly requires:
"AB Rate" and "AB Rate Option" shall have the meaning assigned those
terms in Section 2.05(a)(i) hereof.
"AB Rate Loan" shall mean any loan bearing interest under the AB Rate
Option.
"Additional Interest Event" shall mean the occurrence of the following
event or condition measured in accordance with Section 2.05(a) hereof:
Consolidated Total Indebtedness shall be greater than 30% of Consolidated
Tangible Net Worth.
"Affiliate" shall mean an entity which is directly or indirectly
controlled by the Borrower or which controls the Borrower or which is under
common control with the Borrower.
"Agreement" shall mean this Agreement as amended, modified or
supplemented from time to time.
"Assets" at any time shall mean the assets of the Borrower at such
time, determined in accordance with GAAP.
"Business Day" shall mean any day other than a Saturday, Sunday,
public holiday under the laws of the Commonwealth of Pennsylvania or other
day on which banking institutions are authorized or obligated to close in
Pittsburgh Pennsylvania.
"Capitalized Lease Obligation" shall mean any lease obligation which
is required to be capitalized in accordance with GAAP.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, and any successor statute of
similar import, and regulations thereunder, in each case as in effect from
time to time.
"Change in Control" shall mean any Person or group of Persons (as used
in Sections 13 and 14 of the Securities Exchange Act of 1934, as amended,
(the "Exchange Act"), and the rules and regulations thereunder) shall have
become the beneficial owner (as defined in rules promulgated by the
Securities & Exchange Commission) of more than 35% of the voting securities
of the Borrower.
"Closing Date" shall mean October 1, 1996.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute of similar import, and regulations thereunder, in each
case as in effect from time to time. References to sections of the Code
shall be construed to also refer to any successor sections.
"Commitment" shall have the meaning assigned to such term in Section
2.01 hereof, and with respect to each Bank the Commitment of each Bank
hereunder as set forth below its signature on the last page of this
Agreement hereto, as such Commitment may be terminated or reduced pursuant
to this Agreement. The Commitment shall automatically and permanently
terminate on the Expiration Date.
"Consolidated Net Income" for any period shall mean the net earnings
(or loss) after taxes of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis in accordance with GAAP.
"Consolidated Subsidiaries" at any particular time shall mean those
Subsidiaries whose accounts are or should be consolidated with those of the
Borrower in accordance with GAAP.
"Consolidated Tangible Net Worth" at any time shall mean the
stockholders' equity of the Borrower and its Consolidated Subsidiaries,
determined and consolidated in accordance with GAAP, except that there shall
be deducted all intangible assets of the Borrower and its Consolidated
Subsidiaries (including but not limited to goodwill, organization costs,
patents, copyrights, trademarks, trade names, franchises, licenses) at such
time in accordance with GAAP.
"Consolidated Total Indebtedness" at any time shall mean all
Indebtedness of the Borrower and its Consolidated Subsidiaries at such time.
"Contingent Liabilities" of the Borrower and its Consolidated
Subsidiaries at any particular time shall mean the obligations of the
Borrower and its Consolidated Subsidiaries at such time in respect of any
guarantee or suretyship of the obligations of any other Person (except such
other Person whose accounts are consolidated with the Borrower or its
Consolidated Subsidiaries, as the case may be) the liability for which is
not otherwise reflected as a consolidated liability or any other agreement
to purchase, sell or lease (as lessee or lessor) property or assets
(excluding operating leases) or to purchase or sell services (i) primarily
for the purpose of enabling such Person to satisfy such obligation or (ii)
regardless of the non-delivery of such property or assets or the failure to
furnish such services.
"Controlled Group Member" shall mean each trade or business (whether
or not incorporated) which together with the Borrower is treated as a single
employer under Section 4001(b)(1) of ERISA.
"Corresponding Source of Funds" shall mean in the case of any Euro-
Rate Loan, the proceeds of hypothetical receipts by a Notional Euro-Rate
Funding Office of one or more Dollar deposits in the interbank Eurodollar
market at the beginning of the Euro-Rate Maturity Period applicable to such
Loan, having maturities approximately equal to such Maturity Period and in
an aggregate amount approximately equal to such Loan.
"Dollar," "Dollars" and the symbol "$" shall mean lawful money of the
United States of America.
"Environmental Affiliate" shall mean any Person whose Environmental
Claim the Borrower or any Subsidiary has retained, assumed or is otherwise
liable for (by Law, agreement or otherwise).
"Environmental Approvals" shall mean any governmental or Official Body
action pursuant to or required under any Environmental Law.
"Environmental Claim" shall mean, with respect to any Person, any
action, suit, proceeding, investigation, notice, claim, complaint, demand,
request for information or other communication (written or oral) by any
other Person (including but not limited to any governmental authority,
citizens' group or present or former employee of such Person) alleging,
asserting or claiming any (a) violation of any Environmental Law, (b)
liability for cleanup costs, governmental response costs, natural resources
damages, property damages, personal injuries, fines or penalties arising out
of, based on or resulting from the release into the environment, of any
Environmental Concern Materials at any location, whether or not owned by
such Person.
"Environmental Concern Materials" shall mean any flammable substance,
explosive, radioactive material, hazardous material, hazardous waste, toxic
substance, solid waste, pollutant or contaminant specified in or regulated
or otherwise affected by any Environmental Law (including but not limited to
any "hazardous substance" as defined in CERCLA or any similar state law and
including without limitation any asbestos, gasoline, diesel fuel, motor oil,
waste and used oil, heating oil and other petroleum products or compounds,
polychlorinated biphenyls, radon and urea formaldehyde).
"Environmental Law" shall mean any Law, whether now existing or
subsequently enacted or amended, relating to (a) pollution or protection of
the environment, including natural resources, (b) exposure of Persons,
including but not limited to employees, to Environmental Concern Materials,
(c) protection of the public health or welfare from the effects of products,
by-products, wastes, emissions, discharges or releases of Environmental
Concern Materials or (d) regulation of the manufacture, use or introduction
into commerce of Environmental Concern Materials including their
manufacture, formulation, packaging, labeling, distribution, transportation,
handling, storage or disposal. Without limitation, "Environmental Law" shall
also include any Environmental Approval and the terms and conditions thereof
and shall also include all laws relating to public health, safety and
welfare (including rules and regulations of the Federal Food and Drug
Administration), health care and the provision of health care and related
products, services and equipment.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, and regulations
thereunder, in each case as in effect from time to time. References to
sections of ERISA shall be construed to also refer to any successor
sections.
"Euro-Rate" and "Euro-Rate Option" shall have the meanings assigned to
those terms in Section 2.05(a)(ii) hereof.
"Euro-Rate Loan" shall mean any Loan bearing interest under the Euro-
Rate Option.
"Event of Default" shall mean any of the Events of Default described
in Article VII hereof.
"Expiration Date" shall mean September 30, 1999.
"GAAP" shall have the meaning set forth in Section 1.03 hereof.
"Guaranty Obligations" means, with respect to any Person, without
duplication, any obligations of such Person (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of any
other Person in any manner, whether direct or indirect, and including
without limitation any obligation, whether or not contingent, (i) to
purchase any such Indebtedness or any property constituting security
therefor for the purpose of assuring the holder of such Indebtedness, (ii)
to advance or provide funds or other support for the payment or purchase of
any such Indebtedness or to maintain working capital, solvency or other
balance sheet condition of such other Person (including without limitation
keep well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of Indebtedness of
such other Person, (iii) to lease or purchase property, securities or
services primarily for the purpose of assuring the holder of such
Indebtedness, or (iv) to otherwise assure or hold harmless the holder of
such Indebtedness against loss in respect thereof. The amount of any
Guaranty Obligation hereunder shall (subject to any limitations set forth
therein) be deemed to be an amount equal to the outstanding principal amount
(or maximum principal amount, if larger) of the Indebtedness in respect of
which such Guaranty Obligation is made.
"Indebtedness" of a Person shall mean:
(i) all indebtedness or liability for or on account of money
borrowed by, or for or on account of deposits with or advances to (but
not including accrued pension costs, deferred income taxes or accounts
payable of) such Person;
(ii) all obligations (including Contingent Liabilities) of such
Person evidenced by bonds, debentures, notes, banker's acceptances or
similar instruments;
(iii) all indebtedness or liability for or on account of
property or services purchased or acquired by such Person;
(iv) any amount secured by a Lien on property owned by such
Person (whether or not assumed) and Capitalized Lease Obligations of
such Person (without regard to any limitation of the rights and
remedies of the holder of such Lien or the lessor under such
Capitalized Lease to repossession or sale of such property);
(v) the maximum available amount of all standby letters of
credit issued for the account of such Person and, without duplication,
all drafts drawn thereunder (to the extent unreimbursed); and
(vi) all Guaranty Obligations of such Person.
"Law" shall mean any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ,
decree or award of any Official Body.
"Lien" shall mean any mortgage, deed of trust, pledge, lien, security
interest, charge or other encumbrance or security arrangement of any nature
whatsoever, including but not limited to any conditional sale or title
retention arrangement, and any assignment, deposit arrangement or lease
intended as, or having the effect of, security.
"Loan" or "Loans" shall mean a loan or loans made by a Bank or Banks
to the Borrower under this Agreement.
"London Business Day" shall mean a Business Day (as herein defined)
which is also a day for dealing in deposits in Dollars by and among banks in
the London interbank market.
"Margin" shall mean with respect to any Loan bearing interest at the
Euro-Rate Option the margin expressed as a percentage rate per annum to be
added to the Euro-Rate in order to determine the interest rate payable by
the Borrower pursuant to Section 2.05 (a)(ii) hereof.
"Material Adverse Effect" shall mean any event or circumstance which
has been, will be, or should be disclosed by the Borrower in any required
filing with the Securities and Exchange Commission.
"Maturity Period" and "Maturity Date" shall have the meanings assigned
to those terms in Section 2.05 hereof.
"Money Market Rate" and "Money Market Rate Option" shall have the
meaning assigned such terms in Section 2.05(a)(iii) hereof.
"Money Market Rate Loan" shall mean any Loan bearing interest at the
Money Market Rate Option.
"Month," with respect to a Euro-Rate Maturity Period, has the
following meaning unless a calendar month is specified or the context
otherwise clearly requires:
(i) if the first day of such Euro-Rate Maturity Period is the
last day of a calendar month, a "month" is the interval between the
last days of consecutive calendar months;
(ii) otherwise, a "month" is the interval between the days in
consecutive calendar months numerically corresponding to the first day
of such Euro-Rate Maturity Period or, if there is no such numerically
corresponding day in a particular calendar month, then the last day of
such calendar month.
"Multiemployer Plan" shall mean any multiemployer plan as defined in
Section 4001(a)(3) of ERISA to which Section 4021(a) of ERISA applies, and
to which a Borrower or any Controlled Group Member made, or was required to
make, contributions at any time during the preceding five years.
"Note" or "Notes" shall mean the promissory note or notes of the
Borrower executed and delivered under this Agreement, or any note executed
and delivered pursuant hereto, together with all extensions, renewals,
refinancings or refundings in whole or part.
"Notional Euro-Rate Funding Office" shall have the meaning given to
that term in Section 2.10(a) hereof.
"Office", when used in connection with either Bank, shall mean its
office address that is stated below its signature on the last page of this
Agreement hereto, or at such other office or offices of each Bank or branch,
subsidiary or affiliate thereof as may be designated in writing from time to
time by such Bank to the Borrower.
"Official Body" shall mean any government or political subdivision or
any agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator,
in each case whether foreign or domestic.
"Operating Cash Flow" shall mean earnings of the Borrower and its
Consolidated Subsidiaries, determined and consolidated in accordance with
GAAP, before interest and taxes, plus depreciation and amortization, minus
cash taxes, minus capital expenditures that are not financed by term debt.
"Option" shall mean the AB Rate Option or the Euro-Rate Option or the
Money Market Rate Option, as the case may be.
"PBGC" means the Pension Benefit Guaranty Corporation established
under Title IV of ERISA or any other governmental agency, department or
instrumentality succeeding to the functions of said corporation.
"Person" shall mean an individual, corporation, partnership, trust,
unincorporated association, joint venture, joint-stock company, government
(including political subdivisions), governmental authority or agency, or any
other entity.
"Plan" means any employee pension benefit plan to which Section
4021(a) of ERISA applies (other than any Multiemployer Plan) and (i) which
is maintained for employees of a Borrower or any Controlled Group Member; or
(ii) to which a Borrower or any Controlled Group Member made, or was
required to make, contributions at any time within the preceding five years.
"Potential Default" shall mean any event or condition referenced in
Section 7 hereof which with notice, passage of time or any combination of
the foregoing, would constitute an Event of Default.
"Reportable Event" means (i) a reportable event described in Section
4043 of ERISA and regulations thereunder, (ii) a withdrawal by a substantial
employer from a Plan to which more than one employer contributes, as
referred to in Section 4063(b) of ERISA, or (iii) a cessation of operations
at a facility causing more than twenty percent (20%) of Plan participants to
be separated from employment, as referred to in Section 4062(e) of ERISA.
"Standard Notice" shall mean an irrevocable notice for Loan pursuant
to Section 2.03 provided to either or both Banks on a Business Day which is
(i) the same Business Day in the case of any AB Rate Loan or
Money Market Rate Loan; and
(ii) at least two London Business Days in advance in the case of
any Euro-Rate Loan.
Standard Notice must be provided no later than: (A) 12:00 o'clock Noon,
Pittsburgh time in the case of Euro-Rate Loans; and (B) by 2:30 p.m.,
Pittsburgh time in the case of AB Rate Loans or Money Market Rate Loans, on
the last day permitted for such notice. Standard Notice shall be in writing
(including telex, facsimile or cable communication) or by telephone (to be
subsequently confirmed in writing) in any such case, effective upon receipt
by Bank.
"Subsidiary" of the Borrower at any time shall mean any corporation of
which a majority (by number of shares or number of votes) of any class of
outstanding capital stock normally entitled to vote for the election of one
or more directors (regardless of any contingency which does or may suspend
or dilute the voting rights of such class) is at such time owned directly or
indirectly by the Borrower or one or more Subsidiaries.
"Total Debt Service" shall mean interest expense plus required
principal payments for Indebtedness.
1.02. Construction. Unless the context of this Agreement otherwise
clearly requires, "or" has the inclusive meaning represented by the phrase
"and/or". References in this Agreement to "determination" by either Bank or
the Banks include good faith estimates by either Bank or the Banks (in the
case of quantitative determinations) and good faith belief of the Banks (in
the case of qualitative determinations). The words "hereof", "herein",
"hereunder" and similar terms in this Agreement refer to this Agreement as a
whole and not to any particular provision of this Agreement. The section and
other headings contained in this Agreement are for reference purposes only
and shall not control or affect the construction of this Agreement or the
interpretation hereof in any respect. Section, subsection and exhibit
references are to this Agreement unless otherwise specified.
1.03. Accounting Principles. (a) As used herein, "GAAP" shall mean
generally accepted accounting principles as such principles shall be in
effect at the Relevant Date, subject to the provisions of this Section 1.03.
As used herein, "Relevant Date" shall mean the date a relevant computation
or determination is to be made or the date of relevant financial statements,
as the case may be.
(b) Except as otherwise provided in this Agreement, all computations
and determinations as to accounting or financial matters shall be made, and
all financial statements to be delivered pursuant to this Agreement shall be
prepared, in accordance with GAAP (including principles of consolidation
where appropriate), and all accounting or financial terms shall have the
meanings ascribed to such terms by GAAP.
(c) If any change in GAAP after the date of this Agreement is or shall
be required to be applied to transactions then or thereafter in existence,
and a violation of one or more provisions of this Agreement shall have
occurred (or in the opinion of both Banks would be likely to occur) which
would not have occurred or be likely to occur if no change in accounting
principles had taken place, the parties agree in such event to negotiate in
good faith an amendment of this Agreement which shall approximate to the
extent possible the economic effect of the original financial covenants
after taking into account such change in GAAP.
(d) Without in any manner limiting the provisions of this Section
1.03, if any change in GAAP occurs after the date of this Agreement and such
change in GAAP could or would materially change the Borrower's financial
results or position from that reflected in the Borrower's financial
statements prior to such change, the Borrower shall notify both Banks as
soon as practicable.
ARTICLE II
THE CREDITS
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2.01. Revolving Credit Loans; Money Market Loans. Subject to the
terms and conditions and relying upon the representations and warranties
herein set forth, each Bank agrees, severally and not jointly, to (such
agreement being herein called the Bank's "Commitment") make Loans to the
Borrower at any time or from time to time on or after the date hereof and to
but not including the Expiration Date in an aggregate principal amount not
exceeding $10,000,000, at any time outstanding (for each Bank, the
"Commitment Amount"). Within such limits of time and amount and subject to
the provisions of this Agreement, the Borrower may, subject to all of the
terms and conditions hereof, borrow, repay and reborrow hereunder.
2.02. The Notes. The obligations of the Borrower to repay the
aggregate unpaid principal amount of the Loan or Loans made by the Banks to
the Borrower hereunder and to pay interest thereon shall be evidenced in
part by two promissory notes of the Borrower dated on or prior to the
Closing Date in substantially the form attached hereto as Exhibit A, with
the blanks appropriately filled and payable to the order of each respective
Bank in the amount of the lesser of the applicable Bank's Commitment Amount
or the unpaid principal amount of all Loans made to the Borrower by the
Bank. The outstanding principal amount of each Loan, the unpaid interest
accrued thereon, the interest rate or rates applicable and the duration of
such applicability shall be determined from each Bank's records, which shall
be conclusive absent manifest error. The executed Notes shall be delivered
by the Borrower to each Bank on or prior to the Closing Date.
2.03. Making of Loans. (a) Whenever the Borrower desires to request a
Loan hereunder it shall give Standard Notice thereof to the Bank or Banks
setting forth the following information:
(i) The date, which shall be a Business Day and, in the case of
Euro-Rate Loans, a London Business Day, on which such Loan is to be
made;
(ii) The interest rate Option applicable to such Loan, selected
in accordance with Section 2.05(a) hereof;
(iii) The Maturity Period to apply to such Loan, selected in
accordance with Section 2.05(b) hereof;
(iv) The total principal amount of such Loan, selected in
accordance with Section 2.05(c) hereof.
Standard Notice having been so given, on the date specified in such Notice
and by the close of the applicable Bank's business on such date, such Bank
shall make the proceeds of its Loan available to the Borrower at the Bank's
Office, in funds immediately available at such office. The proceeds of each
Loan may be applied by the Bank or Banks in whole or in part against amounts
then due and payable by the Borrower hereunder.
(b) Absent contrary notice from the Borrower by 12:00 o'clock Noon,
Pittsburgh time, one Business Day prior to any Maturity Date the Borrower
shall, at the applicable Bank's option (and without in any manner limiting
the Borrower's ability to repay the Loan on its Maturity Date without
premium or penalty), be deemed to have given such Bank or Banks notice at
such time pursuant to Section 2.03(a) hereof to the effect that the Borrower
requests that such Bank or Banks make a Loan to the Borrower on such
Maturity Date at the AB Rate Option in an aggregate principal amount equal
to the aggregate principal amount of the Loans becoming due and payable to
such Bank on such Maturity Date.
2.04. Commitment Fees, etc. The Borrower agrees in consideration of
the Commitment of each Bank hereunder, to pay to each Bank a fee
("Commitment Fees") for the period from the Closing Date to and including
the Expiration Date calculated (based on a year of 365 or 366 days as the
case may be) at a rate of .20 of 1% per annum of the aggregate unutilized
Commitment Amount of each respective Bank in effect from time to time;
provided, however, that if an Additional Interest Event shall occur, the
Commitment Fees shall be calculated at the rate of .35 of 1% per annum. Such
fee shall be payable quarterly on the last day of each March, June,
September and December after the Closing Date, and on the Expiration Date,
for the preceding period for which such fee has not been paid. The Borrower
may at any time upon at least ten (10) Business Days' notice to either or
both Banks terminate in whole or reduce in part a Commitment of such Bank
hereunder to an amount not less than the aggregate principal amount of all
Loans then outstanding plus the principal amount of all Loans not yet made
as to which notice has been given pursuant to Section 2.03 hereof; provided,
however, that each partial reduction shall be in a minimum amount of
$1,000,000 or an integral multiple thereof.
2.05. Interest Rates: Maturity Periods; Transactional Amounts.
(a) Optional Basis of Borrowing. Each Loan, if offered, shall bear
interest for each day until due on a single basis selected by the Borrower
from among the interest rate Options set forth below; but the Borrower may
select different Options to apply simultaneously to different Loans:
(i) AB Rate Option: A rate per annum (computed on the basis of
a year of 365 or 366 days, as the case may be) for each day equal to
the higher of: (A) the Base Rate or Prime Rate for such day or (B) the
Federal Funds Effective Rate for such day plus 1% per annum. "Base
Rate" and Prime Rate as used herein shall mean the interest rate per
annum announced from time to time by Mellon or Bank of Boston
respectively as its prime rate or base rate, as applicable. "Federal
Funds Effective Rate" for any day shall mean the rate per annum
(rounded upward to the nearest 1/100 of 1%) determined by each Bank
respectively (which determination shall be conclusive) to be the rate
per annum announced by the Federal Reserve Bank of New York (or any
successor) on such day as being the weighted average of the rates on
overnight Federal funds transactions arranged by Federal funds brokers
on the previous trading day, as computed and announced by such Federal
Reserve Bank (or any successor) in substantially the same manner as
such Federal Reserve Bank computes and announces the weighted average
it refers to as the "Federal Funds Effective Rate" as of the date of
this Agreement; provided, that if such Federal Reserve Bank (or its
successor) does not announce such rate on any day, the "Federal Funds
Effective Rate" for such day shall be the Federal Funds Effective Rate
for the last day on which such rate was announced. Changes in the AB
Rate shall take effect on the date the applicable Bank announces a
change in the Base Rate or the Federal Reserve Bank announces a change
in the Federal Funds Effective Rate, as the case may be.
(ii) Euro-Rate Option: A rate per annum (based on a year of 360
days and actual days elapsed) for each day equal to the Euro-Rate for
such day plus a Margin of .35% of 1% per annum. "Euro-Rate" for any
day, as used herein, shall mean for each Euro-Rate Loan corresponding
to a proposed or existing Euro-Rate Maturity Period the rate per annum
determined by each Bank respectively by dividing (the resulting
quotient to be rounded upward to the nearest 1/100 of 1%) (x) the rate
of interest (which shall be the same for each day in such Euro-Rate
Maturity Period) determined in good faith by the applicable Bank
(which determination shall be conclusive absent manifest error) to be
the average of the rates per annum for deposits in Dollars offered to
banks in the London interbank market at approximately 11:00 o'clock
a.m., London time, two London Business Days prior to the first day of
such Euro-Rate Maturity Period for delivery on the first day of such
Euro-Rate Maturity Period in amounts comparable to such Euro-Rate
Maturity Period by (y) a number equal to 1.00 minus the Euro-Rate
Reserve Percentage.
The "Euro-Rate" described in this Section 2.05(a)(ii) may also
be expressed by the following formula:
[average of the rates offered to ]
[banks in the London interbank market ]
[determined by the Bank per subsection (ii) ]
Euro-Rate = [of this Section 2.05(a) ]
----------------------------------------------------
[1.00-Euro-Rate Reserve Percentage ]
The "Euro-Rate Reserve Percentage" for any day is the maximum
effective percentage (expressed as a decimal fraction, rounded upward
to the nearest 1/100 of 1%), as determined in good faith by the
applicable Bank (which determination shall be conclusive absent
manifest error), which is in effect on such day as prescribed by the
Board of Governors of the Federal Reserve System (or any successor)
for determining the reserve requirements (including, without
limitation, supplemental, marginal and emergency reserve requirements)
with respect to Eurocurrency funding (currently referred to as
"Eurocurrency liabilities") of a member bank in such System but only
to the extent actually incurred by the applicable Bank, such Bank's
determination thereof to be conclusive in the absence of manifest
error. The Euro-Rate shall be adjusted automatically as of the
effective date of each change in the Euro-Rate Reserve Percentage.
The applicable Bank shall give prompt notice to the Borrower of
the Euro-Rate so offered or adjusted from time to time and such Bank's
determination thereof shall be conclusive in the absence of manifest
error. Notwithstanding any other provision of this Agreement, upon the
occurrence of an Additional Interest Event, the Margin applicable to
the Euro-Rate Option shall increase to .60 of 1% per annum; likewise,
at such time as an Additional Interest Event shall cease to exist, the
Margin applicable to the Euro-Rate Option shall decrease to .35 of 1%
per annum; provided, however, that for purposes of the foregoing
sentence, the Borrower shall be entitled to calculate the existence or
non-existence of an Additional Interest Event on a monthly basis (for
such month taken as a whole), and shall notify the applicable Bank
thereof within ten (10) Business Days of the end of each fiscal month,
such notice, if the Bank so requests, to state in reasonable detail
the information and calculations necessary to determine the existence
or non-existence thereof. Changes in Margin required by the foregoing
shall take effect as of the first day of the month following the
reported month.
(iii) Money Market Rate Option. A rate per annum computed on
the basis of 360 days, as the case may be, equal to the Money Market
Rate for such day. "Money Market Rate" shall mean that rate of
interest offered by Mellon or the Bank of Boston respectively to the
Borrower from time to time in the Bank's sole discretion as its Money
Market Rate which rate may be fixed or floating above a stated market
index rate.
(b) Maturity Periods. At any time when a Borrower shall request a
Bank to make a Loan, the Borrower shall specify the term of such Loan (the
"Maturity Period" of each such Loan) within the limitations set forth in the
chart below:
Type of Loan Available Maturity Periods
------------ --------------------------
AB Rate Loan Any number of days
as applicable Bank
may agree ("AB Rate
Maturity Period")
Euro-Rate Loan One, two, three, or six
months ("Euro-Rate Maturity
Period")
Money Market Rate Loan Any number of days not
exceeding 90 ("Money Market
Rate Maturity Period")
(i) Each AB Rate Maturity Period, Euro-Rate Maturity Period or
Money Market Rate Maturity Period which would otherwise end after the
Expiration Date shall instead end on the Expiration Date;
(ii) Each AB Rate Maturity Period or Money Market Rate Maturity
Period or Euro-Rate Maturity Period which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day is after the Expiration Date in
which event, such Maturity Period shall end on the immediately
preceding Business Day;
(iii) Each Euro-Rate Maturity Period shall begin on a London
Business Day, and the duration of each Euro-Rate Maturity Period shall
be determined in accordance with the definition of the term "month"
herein;
(iv) Notwithstanding any other provision of this Agreement, the
Borrower may not fix a Maturity Period that would end after the
Expiration Date.
The principal amount of each Loan shall be due and payable on the last day
of the Maturity Period corresponding thereto (the "Maturity Date" therefor).
(c) Transactional Amounts. Every request for a Loan and every
prepayment of a Loan shall be in a principal amount such that, after giving
effect thereto, the principal amount of such Loan shall be as set forth in
the table below:
Type of Loan Allowable Principal Amounts
------------ ---------------------------
AB Rate Loan $500,000 plus an integral
multiple of $1,000
Money Market Rate Loan $500,000 plus an integral
multiple of $1,000
Euro-Rate Loan $1,000,000 plus an integral
multiple of $1,000
(d) Interest After Maturity. After the principal amount of any Loan
shall have become due (by acceleration or otherwise), such Loan shall bear
interest for each day until paid (before and after judgment) at a rate per
annum (based on a year of 365 or 366 days, as the case may be) which shall
be 2% above the then-current Base Rate or Prime Rate of the applicable Bank,
such interest rate to change automatically from time to time effective as of
the effective date of each change in such Base Rate or Prime Rate.
(e) Euro-Rate Unascertainable; Impracticability. If
(i) on any date on which a Euro-Rate would otherwise be set the
applicable Bank shall have in good faith determined (which
determination shall be conclusive) that:
(A) adequate and reasonable means do not exist for
ascertaining such Euro-Rate; or
(B) a contingency has occurred which materially and
adversely affects the interbank eurodollar market; or
(C) the effective cost to such Bank of funding a proposed
Euro-Rate Loan from a Corresponding Source of Funds shall exceed
the Euro-Rate applicable to such Loan; or
(ii) at any time the applicable Bank shall have determined in
good faith (which determination shall be conclusive) that the making,
maintenance or funding of any Euro-Rate Loan has been made
impracticable or unlawful by compliance by such Bank or a Notional
Euro-Rate Funding Office of such Bank in good faith with any Law or
guideline or interpretation or administration thereof by any Official
Body charged with the interpretation or administration thereof or with
any request or directive of any such Official Body (whether or not
having the force of law);
then, and in any such event, such Bank shall notify the Borrower of the
Bank's determination. Upon such date as shall be specified in such notice
(which shall not be earlier than the date such notice is given to the
Borrower) the obligation of such Bank to allow the Borrower to select the
Euro-Rate Option shall be suspended until such Bank shall have later
notified the Borrower of its determination (which determination shall be
presumed correct) that the circumstances giving rise to such previous
determination no longer exist.
If a Bank notifies the Borrower of a determination under subsection
(ii) of this Section 2.05(e), any Euro-Rate Loans then outstanding shall be
due and payable on the date specified in such notice. Absent contrary notice
from the Borrower by 12:00 o'clock Noon, Pittsburgh time, on such specified
date, the Borrower shall be deemed to have given such Bank notice at such
time pursuant to Section 2.03(a) hereof to the effect that the Borrower
requests a Loan hereunder at the Money Market Rate, if available and if not,
at the AB Rate Option in principal amount equal to the principal amount
becoming due and payable pursuant to the preceding sentence.
If at the time a Bank makes a determination under this Section 2.05(e)
and the Borrower has previously notified such Bank that it wishes the Bank
to make a Euro-Rate Loan but such Loan has not yet been made, such
notification shall be deemed to request the making of an AB Rate Loan
instead of a Euro-Rate Loan.
2.06. Prepayments. Subject to Section 2.09(b) hereof, the Borrower
shall have the right at its option from time to time to prepay any Loan in
whole or in part upon at least: (i) one Business Day's prior written notice
to the applicable Bank in the case of any AB Rate Loan or Money Market Rate
Loan, provided, however that any prepayment of any AB Rate Loan or Money
Market Rate Loan shall be in a minimum principal amount of $500,000; and
(ii) five Business Days' prior written notice to the applicable Bank in the
case of any Euro-Rate Loan; provided, however that any prepayment of any
Loan referenced in this clause (ii) shall be in a minimum principal amount
of $1,000,000. Whenever the Borrower desires to prepay any part of any Loan,
it shall provide Standard Notice to the applicable Bank setting forth the
following information:
(a) The date, which shall be a Business Day, on which the
proposed prepayment is to be made;
(b) The Maturity Date, principal amount of, and interest rate
Option applicable to, the Loan to be prepaid; and
(c) The principal amount to be prepaid.
Standard Notice having been so provided, and on the date specified in such
notice the principal amount of the Loan specified in such notice, together
with interest on such principal amount to such date, shall be due and
payable.
2.07. Interest Payment Dates. Interest on each AB Rate Loan and each
Money Market Rate Loan shall be due and payable on the Maturity Date
thereof. Interest on each Euro-Rate Loan shall be due and payable on the
Maturity Date thereof and, if the corresponding Euro-Rate Maturity Period is
longer than three months, also every third month during such Maturity
Period. After maturity of any Loan (by acceleration or otherwise), interest
on such Loan shall be due and payable on demand.
2.08. Payments. All payments and prepayments to be made in respect of
principal, interest, Commitment Fees or other amounts due from the Borrower
hereunder or under any Note shall be payable at 12:00 o'clock Noon,
Pittsburgh time, on the day when due without presentment, demand, protest or
notice of any kind, all of which are hereby expressly waived, and an action
therefore shall accrue on and as of the expiration of any grace period.
Unless otherwise agreed by the applicable Bank, such payments shall be made
to the Bank at its respective Office in Dollars in funds immediately
available at such Office. Such payments shall be made without setoff,
counterclaim or other deduction of any nature, except only that the
principal amount of any Loan then due from the Borrower to the Bank shall
automatically be set-off against the principal amount of any Loan then due
from the Bank to the Borrower hereunder. To the extent permitted by law,
after there shall have become due (by acceleration or otherwise) interest,
Commitment Fees or any other amounts due from the Borrower hereunder or
under any Note (excluding overdue principal, which shall bear interest as
described in Section 2.05(d) hereof, but including interest payable under
this Section 2.08), such amounts shall bear interest for each day until paid
(before and after judgment), payable on demand, at a rate per annum (based
on a year of 365 or 366 days, as the case may be) which shall be 2% above
the then-current Base Rate or Prime Rate, such interest rate to change
automatically from time to time effective as of the effective date of each
change in the Base Rate or Prime Rate.
2.09. Additional Compensation in Certain Circumstances.
(a) Increased Costs or Reduced Return Resulting From Taxes. Reserves;
Capital Adequacy Requirements; Expenses. etc. If any now existing or
hereafter adopted Law or guideline or interpretation or application thereof
by any Official Body charged with the interpretation or administration
thereof or compliance with any request or directive of any Official Body
(whether or not having the force of law) hereafter:
(i) subjects a Bank or any Notional Euro-Rate Funding Office of
either Bank to any tax or changes the basis of taxation with respect
to this Agreement, the Notes, the Loans or payments by the Borrower of
principal, interest, Commitment Fees or other amounts due from the
Borrower hereunder or under the Notes (except for taxes on the overall
net income of each Bank or such Notional Euro-Rate Funding Office
imposed by the jurisdiction in which each Bank's respective principal
office or Notional Euro-Rate Funding Office is located),
(ii) imposes, modifies or deems applicable any reserve, special
deposit or similar requirement against assets held by, credit extended
by, deposits with or for the account of, or other acquisition of funds
by, a Bank or its respective Notional Euro-Rate Funding Office (other
than requirements expressly included herein in the determination of
the Euro-Rate hereunder),
(iii) imposes, modifies or deems applicable any capital adequacy
or similar requirement (A) against assets (funded or contingent) of,
or credits or Commitments to extend credit by, a Bank or its
respective Notional Euro-Rate Funding Office or holding company, or
(B) otherwise applicable to the obligations of a Bank or its
respective Notional Euro-Rate Funding Office under this Agreement, or
(iv) imposes upon a Bank or its respective Notional Euro-Rate
Funding Office any other condition or expense with respect to this
Agreement, the Note held by each Bank or its making, maintenance or
funding of any Loans,
and the result of any of the foregoing is to increase the cost to, reduce
the income receivable by, or impose any expense (including loss of margin)
upon a Bank or its respective Notional Euro-Rate Funding Office with respect
to this Agreement, its Note or the making, maintenance or funding of any
part of any Loan or, in the case of any capital adequacy or similar
requirement, to have the effect of reducing the return on such Bank's or
holding company's capital, of such Bank or the Bank holding company which is
the parent of such Bank (taking into account the Bank's policies with
respect to capital adequacy) by an amount which such Bank deems to be
material (such Bank being deemed for this purpose to have made, maintained
or funded each Euro-Rate Loan from a Corresponding Source of Funds), such
Bank shall from time to time notify the Borrower of the amount determined
(using any averaging and attribution methods) by the Bank in good faith
(which determination shall be conclusive) to be necessary to compensate the
Bank or its Notional Euro-Rate Funding Office for such increase in cost,
reduction in income or additional expense reasonably allocable to the
making, maintenance or funding of Loans hereunder. Such amount shall be due
and payable by the Borrower to such Bank thirty (30) days after such notice
is given.
(b) Indemnity. In addition to the compensation required by subsection
(a) of this Section 2.09, the Borrower shall indemnify each Bank
respectively against any loss or expense (including loss of margin) which
the applicable Bank has sustained or incurred as a consequence of any
(i) payment or prepayment of any part of any Euro-Rate Loan or
Money Market Rate Loan on a day other than the last day of the
corresponding Maturity Period (whether or not such payment or
prepayment is mandatory and whether or not such payment or prepayment
is then due),
(ii) attempt by the Borrower to revoke (expressly, by later
inconsistent notices or otherwise) in whole or part any notice stated
herein to be irrevocable (such Bank having in its discretion the
options (A) to give effect to any such attempted revocation and obtain
indemnity under this Section 2.09(b) or (B) to treat such attempted
revocation as having no force or effect, as if never made), or
(iii) default by the Borrower in the performance or observance
of any covenant or condition contained in this Agreement or the Notes,
including without limitation any failure of the Borrower to pay when
due (by acceleration or otherwise) any principal, interest, Commitment
Fees or any other amount due hereunder or under the Notes, or
(iv) claims, demands, losses or expenses incurred by or asserted
against either Bank in connection with the Borrower's use of the
proceeds of any Loan and/or either Bank's role as a lender hereunder
except to the extent caused by such Bank's gross negligence or willful
misconduct.
If a Bank sustains or incurs any such loss or expense it shall from time to
time notify the Borrower of the amount determined by such Bank in good faith
(which determination shall be conclusive) to be necessary to indemnify such
Bank for such loss or expense (the Bank being deemed for this purpose to
have made, maintained or funded each Euro-Rate Loan from a Corresponding
Source of Funds). Such amount shall be due and payable by the Borrower to
such Bank ten Business Days after such notice is given. Notwithstanding the
provisions of this Section 2.09(b), the Borrower shall not be required to
indemnify such Bank as a consequence of any of the events specified in
clauses (i) through (iv) of this Section 2.09(b) if the sole cause of such
event is an act of God, civil commotion, governmental action, fire,
explosion, strike or other industrial disturbance, equipment malfunction or
any other cause that is beyond the Borrower's reasonable control.
2.10. Funding by Branch, Subsidiary or Affiliate.
(a) Notional Funding. Each Bank shall have the right from time to
time, prospectively or retrospectively, without notice to the Borrower, to
deem any branch, subsidiary or affiliate of such Bank to have made,
maintained or funded any of the Bank's Euro-Rate Loans at any time. Any
branch, subsidiary or affiliate so deemed shall be known as a "Notional
Euro-Rate Funding Office." Each Bank shall deem any of its Euro-Rate Loans
or the funding therefor to have been transferred to a different Notional
Euro-Rate Funding Office if such transfer would avoid or cure an event or
condition described in Section 2.05(e)(ii) hereof or would lessen
compensation payable by the Borrower under Section 2.09(a) hereof, and if
such Bank determines in its sole discretion that such transfer would be
practicable and would not have a Material Adverse Effect on such Loans, such
Bank or its Notional Euro-Rate Funding Office (it being assumed for purposes
of such determination that each such Euro-Rate Loan is actually made or
maintained by or funded through the corresponding Notional Euro-Rate Funding
Office). Notional Euro-Rate Funding Offices may be selected by each Bank
respectively without regard to each Bank's actual methods of making,
maintaining or funding Loans or any sources of funding actually used by or
available to such Bank.
(b) Actual Funding. Each Bank shall have the right from time to time
to make or maintain any Euro-Rate Loan by arranging for a branch, subsidiary
or affiliate of such Bank to make or maintain such Loan. Each Bank shall
have the right to hold any applicable Note payable to its order for the
benefit and account of such branch, subsidiary or affiliate. If a Bank
causes a branch, subsidiary or affiliate to make or maintain any Loan
hereunder, all terms and conditions of this Agreement shall, except where
the context clearly requires otherwise, be applicable to such Loan to the
same extent as if such Loan were made or maintained by such Bank.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
------------------------------
The Borrower represents and warrants that:
3.01. Organization and Qualification. The Borrower and each of its
Subsidiaries are corporations duly organized, validly existing and in good
standing under the laws of the their respective jurisdictions of
incorporation; each of the Borrower and its Subsidiaries has the power and
authority to own its properties as assets, and to carry on its business as
presently conducted and is qualified to do business in those jurisdictions
in which its ownership of property or the nature of its business activities
is such that failure to receive or retain such qualification would have a
Material Adverse Effect upon the business, operations or condition
(financial or otherwise) of the enterprise comprised of the Borrower and its
Consolidated Subsidiaries taken as a whole. A list of the Borrower's
Subsidiaries setting forth their respective jurisdictions of incorporation
is set forth in Schedule 1 hereto.
3.02. Corporate Power and Authorization. The Borrower has corporate
power and authority to make and carry out this Agreement, to make the
borrowings provided for herein, to execute and deliver the Notes and to
perform its obligations hereunder and under the Notes; all such action has
been duly authorized by all necessary corporate proceedings on its part.
3.03. Financial Statements. The Borrower has furnished to each Bank
copies of the audited consolidated financial statements of the Borrower and
its Consolidated Subsidiaries including a consolidated balance sheet and
related statements of income and retained earnings for the fiscal year
ending March 30, 1996. Such financial statements fairly present the
financial position of the Borrower and its Consolidated Subsidiaries as of
the date of such reports and the consolidated results of their operations
and cash flows for the fiscal periods then ended, in conformity with
generally accepted accounting principles applied on a consistent basis and
have been examined and reported upon by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., independent,
certified public accountants.
3.04. Litigation. Except as disclosed to each Bank in writing prior
to the Closing Date or otherwise disclosed in the financial statements
delivered to Bank pursuant to Section 3.03 hereof, there is no litigation or
governmental proceeding by or against the Borrower pending or, to its
knowledge, threatened, which in the reasonable judgment of the Borrower,
involves or could involve any Material Adverse Effect on the business,
operations, prospects or condition (financial or otherwise) of the
enterprise represented by the Borrower and its Consolidated Subsidiaries
taken as a whole.
3.05. No Adverse Changes. Since March 30, 1996 there has been no
material adverse change in the business, operations, prospects or condition
(financial or otherwise) of the enterprise represented by the Borrower and
its Consolidated Subsidiaries taken as a whole.
3.06. No Conflicting Laws or Agreements; Consents and Approvals. (a)
Neither the execution and delivery of this Agreement, the consummation of
the transactions herein contemplated nor compliance with the terms and
provisions hereof or of the Notes will conflict with or result in a breach
of any of the terms, conditions or provisions of the articles of
incorporation or by-laws of the Borrower or of any Law or of any agreement
or instrument to which the Borrower is a party or by which it is bound or to
which it is subject, or constitute a default thereunder or result in the
creation or imposition of any Lien of any nature whatsoever upon any of the
property of the Borrower pursuant to the terms of any such agreement or
instrument.
(b) No authorization, consent, approval, license, exemption or other
action by, and no registration, qualification, designation, declaration or
filing with, any Official Body is or will be necessary or advisable in
connection with execution and delivery of this Agreement, of the Notes,
consummation of the transactions herein or therein contemplated, performance
of or compliance with the terms and conditions hereof or thereof.
3.07. Execution and Binding Effect. This Agreement has been duly and
validly executed and delivered by the Borrower. This Agreement constitutes,
and the Notes when duly executed and delivered by the Borrower pursuant to
the provisions hereof will constitute, legal, valid and binding obligations
of the Borrower, enforceable in accordance with the terms thereof except, as
to the enforcement of remedies, for limitations imposed by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally including, without limitation,
Laws with respect to fraudulent conveyance, or by Laws limiting the right of
specific performance or by general principles of equity.
3.08. ERISA Matters. (i) Each Plan has been maintained, in all
material respects, in accordance with its terms and with all provisions of
ERISA applicable thereto, (ii) no Reportable Event has occurred and is
continuing with respect to any Plan and (iii) the Borrower has not incurred
any liability to PBGC.
3.09. Taxes. All tax returns required to be filed by the Borrower
have been properly prepared, executed and filed. All taxes, assessments,
fees and other governmental charges upon the Borrower or upon its
properties, income or sales which are due and payable have been paid. The
reserves and provisions for taxes on the books of the Borrower are adequate
for all open years and for its current fiscal period.
3.10. Regulation U. The Borrower will make no borrowing hereunder for
the purpose of buying or carrying any "margin stock" as such term is used in
Regulation U of the Board of Governors of the Federal Reserve System. The
Borrower is not engaged in the business of extending credit to others for
the purposes of buying or carrying any "margin stock."
3.11. Environmental Matters. The Borrower and each Subsidiary and
their respective Environmental Affiliates is now in material compliance with
all applicable Environmental Laws. There are, to the Borrower's knowledge
after due inquiry, no circumstances that may prevent or interfere with such
material compliance in the future. The Borrower and each Subsidiary and
their respective Environmental Affiliates have all material Environmental
Approvals necessary or desirable for the ownership and operation of their
respective properties, facilities and businesses as presently owned and
operated and as presently proposed to be owned and operated and for the
manufacture, use, production and distribution of their respective products
and equipment as presently done and as presently proposed to be done. Except
as disclosed in Schedule 2 hereto, there is no Environmental Claim pending
or threatened, and, to the Borrower's knowledge, there are no past or
present acts, omissions, events or circumstances that could form the basis
of any Environmental Claim, against the Borrower or any Subsidiary. To the
best of the Borrower's knowledge, no facility or property now or previously
owned, operated or leased by the Borrower or any Subsidiary or any of its
respective Environmental Affiliates is an Environmental Cleanup Site. To the
best of the Borrower's knowledge, except as set forth on Schedule 2, neither
the Borrower nor any Subsidiary nor any of its respective Environmental
Affiliates has directly transported or directly arranged for the
transportation of any Environmental Concern Materials to any Environmental
Cleanup Site. No Lien exists, and, to the best of the Borrower's knowledge,
except as set forth on Schedule 2, no condition exists which could result in
the filing of a Lien, against any property of the Borrower or any Subsidiary
or any of its respective Environmental Affiliates, under any Environmental
Law.
3.12. Patents. Licenses Franchises. The Borrower and each Subsidiary
own or possess all the patents, trademarks, service marks, trade names,
copyrights, licenses, franchises, permits and rights with respect to the
foregoing necessary to own and operate their respective properties and to
carry on their respective businesses as presently conducted and presently
planned to be conducted without conflict with the rights of others.
3.13. Investment Company: Public Utility Holding Company. The
Borrower: (a) is not an investment company within the meaning of the
Investment Company Act of 1940; and (b) is exempt from registration under
the Public Utility Holding Company Act of 1935.
3.14. Accurate and Complete Disclosure. To the best of the Borrower's
knowledge, the Borrower has disclosed to each Bank in writing every fact
which materially and adversely affects, or which so far as the Borrower can
reasonably foresee would materially and adversely affect, the business,
operations, prospects or condition (financial or otherwise) of the Borrower
or the ability of the Borrower to perform its obligations under this
Agreement and the Notes.
3.15. Absence of Violations. The Borrower is not in violation of any
charter document, corporate minute or resolution, any instrument or
agreement, in each case binding on it or affecting its property, or any
requirement of law, in a manner which could have a materially adverse
effect, including without limitation all applicable federal and state tax
laws, ERISA and environmental laws. For purposes hereof materially adverse
effect shall mean any "materially adverse effect" on the financial condition
or business operations of the Borrower or material impairment of the ability
of the Borrower in perform its obligations hereunder or under any of the
loan documents.
ARTICLE IV
CONDITIONS OF LENDING
---------------------
The obligations of each Bank to make any Loan hereunder are subject to the
accuracy as of the date hereof of the representations and warranties herein
contained, to the performance by the Borrower of its obligations to be
performed hereunder on or before the date of such Loans and to the
satisfaction of the following further conditions:
4.01. Representations and Warranties: Events of Default and Potential
Defaults. The representations and warranties contained in Article III
hereof shall be true on and as of the date of each Loan hereunder with the
same effect as though made on and as of each such date, and on the date of
each Loan hereunder no Event of Default and no Potential Default shall have
occurred and be continuing or exist or shall occur or exist after giving
effect to the Loans to be made on such date. Failure of a Bank to receive
notice from the Borrower to the contrary before any Loan is made or deemed
made hereunder shall constitute a representation and warranty by the
Borrower that (i) the representations and warranties contained in Article
III hereof are true and correct on and as of the date of such Loan with the
same effect as though made on and as of such date and (ii) on the date of
such Loan no Event of Default or Potential Default has occurred and is
continuing or exists or will occur or exist after giving effect to such
Loan.
4.02. Proceedings and Incumbency. There shall have been delivered to
each Bank a certificate in form and substance satisfactory to each Bank
dated the Closing Date and signed on behalf of the Borrower by the Secretary
or an Assistant Secretary of the Borrower, certifying as to (a) true copies
of all corporate action taken by the Borrower relative to this Agreement and
the Notes, including but not limited to that described in Section 3.02
hereof and (b) the names, true signatures and incumbency of the officer or
officers of the Borrower authorized to execute and deliver this Agreement
and the Notes. Each Bank may conclusively rely on such certificates unless
and until a later certificate revising the prior certificates have been
furnished to the Banks.
4.03. Opinion of Counsel. There shall have been delivered to each
Bank a written opinion addressed to both Banks, dated the Closing Date, of
▇▇▇▇ ▇▇▇▇▇, General Counsel of the Borrower, in form and substance
satisfactory to both Banks, as to the matters referred to in Sections 3.01,
3.02, 3.04, 3.06 and 3.07 hereof (except that as to the matters referred to
in Sections 3.04 and 3.06 such opinion may be limited to the knowledge of
such counsel).
4.04. Details. Proceedings and Documents. All legal details and
proceedings in connection with the transactions contemplated by this
Agreement shall be satisfactory to both Banks, and each Bank shall have
received all such counterpart originals or certified or other copies of such
documents and proceedings in connection with such transactions, in form and
substance satisfactory to it, as each Bank may from time to time reasonably
request.
ARTICLE V
AFFIRMATIVE COVENANTS
---------------------
The Borrower hereby covenants to each Bank as follows:
5.01. Reporting and Information Requirements. The Borrower shall
deliver to each Bank:
(a) Annual Reports. As soon as practicable and in any event within
100 days after the close of each fiscal year of the Borrower, the Borrower
shall furnish to each Bank, audited consolidated statements of income,
retained earnings and cash flows of the Borrower and its Consolidated
Subsidiaries for such fiscal year and a consolidated audited balance sheet
of the Borrower and its Consolidated Subsidiaries as of the close of such
fiscal year, and notes to each, all in reasonable detail and in accordance
with GAAP, setting forth in comparative form the corresponding figures for
the preceding fiscal year, with such statements and balance sheets to be
certified by independent public accountants of recognized national standing
selected by the Borrower and acceptable to each Bank, the certificate or
report of such accountants shall be free of exceptions or qualifications not
reasonably acceptable to each Bank.
(b) Quarterly Statements. Within 60 days after the end of the first,
second and third quarterly accounting periods in each fiscal year of the
Borrower, copies of the unaudited consolidated balance sheets of the
Borrower and its Consolidated Subsidiaries as of the end of such accounting
period and of the consolidated income statements of the Borrower and its
Consolidated Subsidiaries for the elapsed portion of the fiscal year ended
with the last day of such accounting period, all in reasonable detail
subject to year-end audit adjustments and certified by the principal
financial officer of the Borrower to have been prepared in accordance with
generally accepted accounting principles consistently applied by the
Borrower except as explained in such certificate.
(c) Compliance Certificates. Within 100 days after the end of each
fiscal year of the Borrower and within 60 days after the end of each of the
first three quarters of each fiscal year, the Borrower shall deliver to each
Bank, a certificate dated as of the end of such fiscal year or quarter,
signed on behalf of the Borrower by a principal financial officer, (i)
stating that as of the date thereof no Event of Default or Potential Default
has occurred and is continuing or exists, or if an Event of Default or
Potential Default has occurred and is continuing or exists, specifying in
detail the nature and period of existence thereof and any action with
respect thereto taken or contemplated to be taken by the Borrower, (ii)
stating in reasonable detail the information and calculations necessary to
establish compliance with the provisions of Article VI hereof, and (iii)
stating that the signer has reviewed this Agreement and that such
certificate is based on an examination made by or under the supervision of
the sinner sufficient to assure that such certificate is accurate.
(d) Further Information. The Borrower will promptly furnish to each
Bank such other information and in such form as each Bank may reasonably
request, with a copy furnished thereof to the other Bank.
(e) Notice of Event of Default. Immediately upon becoming aware of
any Event of Default or Potential Default the Borrower shall give each Bank
notice thereof, together with a written statement of the president or a
principal financial officer of the Borrower setting forth the details
thereof and any action with respect thereto taken or contemplated to be
taken by the Borrower.
(f) Notice of Material Adverse Change. Promptly upon becoming aware
thereof, the Borrower shall give each Bank notice of any material adverse
change in the business, operations or condition (financial or otherwise) of
the Borrower or of the enterprise represented by the Borrower and its
Subsidiaries taken as a whole.
(g) Notice of Material Proceedings. Promptly upon becoming aware
thereof the Borrower shall give each Bank notice of the commencement,
existence or threat of any proceeding or a material change in any existing
material proceeding by or before any Official Body against or affecting the
Borrower which, if adversely decided, would have a Material Adverse Effect
on the business, operations, prospects or condition (financial or otherwise)
of the Borrower or on the ability of the Borrower to perform its obligations
under this Agreement or the Notes.
(h) Notice of Pension-Related Events. Promptly after the Borrower,
any Controlled Group Member or any administrator of a Plan:
(i) has knowledge of the occurrence of a Reportable Event with
respect to a Plan or that action has been or will be taken by any
Person to terminate any Plan in accordance with Section 4041 of ERISA
or otherwise, or
(ii) files a notice of intent to terminate a Plan with the
Internal Revenue Service or the PBGC; or files with the Internal
Revenue Service a request pursuant to Section 412(d) of the Code for a
variance from the minimum funding standard for a Plan; or files a
return with the Internal Revenue Service with respect to the tax
imposed under Section 4971(a) of the Code for failure to meet the
minimum funding standards established under Section 412 of the Code
for a Plan,
the Borrower will furnish to each Bank a copy of any notice, return or other
written materials applicable or required to be filed by the Borrower in
respect thereof; the most recent Annual Report (Form 5500 Series) and
attachments thereto for the Plan; the most recent actuarial report for the
Plan; and a written statement of the President or chief financial officer of
the Borrower describing the event or the action taken and the reasons
therefor.
(i) Visitation. The Borrower shall permit such Persons as each
Bank may designate to visit and inspect any of the properties of the
Borrower, to discuss its affairs with its financial management and
accountants, and provide such other information relating to the
business and financial condition of the Borrower at such times as each
Bank may reasonably request and the Borrower may reasonably agree. The
Borrower hereby authorizes its financial management to discuss with
each Bank the affairs of the Borrower.
5.02. Preservation of Existence and Franchises. The Borrower shall
and shall cause each of its Subsidiaries to maintain its corporate
existence, rights and franchises in full force and effect in its
jurisdiction of incorporation. The Borrower shall and shall cause each of
its Subsidiaries to qualify and remain qualified as a foreign corporation in
each jurisdiction in which failure to receive or retain such qualification
would have a Material Adverse Effect on the business, operations or
financial condition of the Borrower or such Subsidiary.
5.03. Insurance. The Borrower shall maintain with financially sound
and reputable insurers insurance with respect to its properties and business
and against such liabilities, casualties and contingencies and of such types
and in such amounts as is customary in the case of corporations engaged in
the same or a similar business or having similar properties similarly
situated.
5.04. Maintenance of Properties. The Borrower shall maintain or cause
to be maintained in good repair, working order and condition the properties
now or hereafter owned, leased or otherwise possessed by and used or useful
in its business and shall make or cause to be made all needful and proper
repairs, renewals, replacements and improvements thereto so that the
business carried on in connection therewith may be properly conducted at all
times, provided, however, that the foregoing shall not impose on the
Borrower any obligation in respect of any property leased by the Borrower in
addition to the Borrower's obligations under the applicable document
creating the Borrower's lease or tenancy.
5.05. Payment of Taxes and Other Potential Charges and Priority
Claims: Payment of Other Current Liabilities. The Borrower shall and shall
cause each of its Subsidiaries to pay or discharge:
(a) on or prior to the date on which penalties attach thereto, all
taxes, assessments and other governmental charges or levies imposed upon it
or any of its properties or income (including such as may arise under
Section 4062, Section 4063 or Section 4064 of ERISA, or any similar
provision of law);
(b) on or prior to the date when due, all lawful claims of
materialmen, mechanics, carriers, warehousemen, landlords and other like
Persons which, if unpaid, might result in the creation of a Lien upon any
such property; and
(c) on or prior to the date when due, all other lawful claims which,
if unpaid, might result in the creation of a Lien upon any such property
(other than Liens not forbidden by Section 6.06 hereof) or which, if unpaid,
might give rise to a claim entitled to priority over general creditors of
the Borrower in a case under Title 11 (Bankruptcy) of the United States
Code, as amended, or in any insolvency proceeding or dissolution or
winding-up involving the Borrower or such Subsidiary;
provided that, unless and until foreclosure, distraint, levy, sale or
similar proceedings shall have been commenced, the Borrower need not pay or
discharge any such tax, assessment, charge, levy or claim so long as the
validity thereof is contested in good faith and by appropriate proceedings
diligently conducted and so long as such reserves or other appropriate
provisions as may be required by GAAP shall have been made therefor and so
long as such failure to pay or discharge does not have a Material Adverse
Effect on the business, operations or financial condition of the Borrower
and its Subsidiaries, taken as a whole.
5.06. Financial Accounting Practices. The Borrower shall and shall
cause each of its Subsidiaries to make and keep books, records and accounts
which, in reasonable detail, accurately and fairly reflect its transactions
and dispositions of its assets and maintain a system of internal accounting
controls sufficient to provide reasonable assurances that transactions are
recorded as necessary to permit preparation of financial statements required
under Section 5.01 hereof in conformity with GAAP and to maintain
accountability for assets.
5.07. Compliance with Laws. The Borrower shall and shall cause each
of its Subsidiaries to comply with all applicable Laws (including but not
limited to ERISA, the Code and any applicable product safety or
Environmental Law) in all respects; provided that the Borrower or any
Subsidiary shall not be deemed to be in violation of this Section 5.07 as a
result of any failures to comply which would not result in fines, penalties,
injunctive relief or other civil or criminal liabilities which, in the
aggregate, would materially adversely affect the business, operations,
prospects or condition (financial or otherwise) of the enterprise
represented by the Borrower and its Consolidated Subsidiaries taken as a
whole or the ability of the Borrower to perform its obligations under this
Agreement or the Notes.
5.08. Use of Proceeds. The Borrower shall use the proceeds of all
Loans hereunder for its general corporate purposes.
5.09. Continuation Of and Change In Business. The Borrower and its
Subsidiaries shall continue to engage in the business and activities
substantially as currently engaged in and the Borrower shall not engage in
any other unrelated businesses or activities to any substantial degree.
ARTICLE VI
NEGATIVE COVENANTS
------------------
The Borrower covenants to each Bank as follows:
6.01. Financial Maintenance Covenants.
(a) Tangible Net Worth. The Borrower shall maintain Consolidated
Tangible Net Worth which is at all times equal to $160,000,000 increased
yearly on a cumulative basis by an amount equal to fifty percent (50%) of
the Consolidated Net Income for the preceding fiscal year beginning with the
fiscal year ending 1997 provided, however, that if in any year Consolidated
Net Income constitutes a loss, there shall be no deduction or adjustment to
the foregoing reflecting such loss.
(b) Debt/Worth. The ratio of Consolidated Total Indebtedness to
Consolidated Tangible Net Worth shall at no time exceed .5 to 1.
(c) Operating Cash Flow/Total Debt Service. The ratio of Operating
Cash Flow to Total Debt Service shall at no time be less than 2 to 1,
provided, however, that for the purposes of this section 6.01 (c): (i).
Operating Cash Flow shall mean Operating Cash Flow of the Borrower and its
Consolidated Subsidiaries for the most recent and three prior fiscal
quarters; and (ii) Total Debt Service shall mean Total Debt Service of the
Borrower and its Consolidated Subsidiaries for the most recent and three
prior fiscal quarters.
6.02. Merger. The Borrower shall not, and shall not permit any
Subsidiary to, merge with or into or consolidate with any other Person, or
agree to do any of the foregoing, except that if no Event of Default or
Potential Event of Default shall occur and be continuing or shall exist at
the time of such merger or consolidation or immediately thereafter and after
giving effect thereto:
(a) a Subsidiary may merge with or into or consolidate with any other
Subsidiary;
(b) the Borrower may merge with any other corporation, including a
Subsidiary, if the Borrower shall be the surviving corporation;
(c) if the Bank's consent is obtained, the Borrower may merge into or
consolidate with any other corporation if the corporation into which the
Borrower is merged or which is formed by such consolidation shall expressly
assume all obligations of the Borrower under this Agreement.
6.03. Dispositions of Assets. The Borrower shall not, and shall not
permit any Subsidiary to sell, convey, assign, lease, abandon or otherwise
transfer or dispose of, voluntarily or involuntarily (any of the foregoing
being referred to in this Section 6.03 as a "transaction" and any series of
related transactions constituting but a single transaction), any of its
properties or Assets, tangible or intangible (including but not limited to
sale, assignment, discount or other disposition of accounts, contract
rights, chattel paper or general intangibles with or without recourse),
except:
(a) transactions in the ordinary course of business involving current
assets or leases of warehouse space;
(b) sales, conveyances, assignments or other transfers or dispositions
in immediate exchange for cash or tangible assets, provided that any such
sales, conveyances or transfers shall not individually, or in the aggregate,
exceed $15,000,000 in any fiscal Year; or
(c) dispositions of equipment or other property which is obsolete or
no longer used or useful in the conduct of the business of the Borrower.
6.04 Liens. The Borrower shall not, and shall not permit any
Subsidiary to at any time create, incur, assume or suffer to exist any Lien
on any of its property or assets, tangible or intangible, now owned or
hereafter acquired or agree or become liable to do so, except:
(a) Liens existing on the date hereof (and extension/s, renewal and
replacement Liens upon the same property, provided the amount secured by
each Lien constituting such an extension, renewal or replacement Lien shall
not exceed the amount secured by the Lien theretofore existing);
(b) Liens arising from taxes, assessments, charges, levies or claims
described in Section 5.05 hereof that are not yet due or that remain payable
without penalty or to the extent permitted to remain unpaid under the
provision of such Section 5.05;
(c) Liens on property securing all or part of the purchase price
thereof to the Borrower and Liens (whether or not assumed) existing in
property at the time of purchase thereof by the Borrower (and extension,
renewal and replacement Liens upon the same property), provided -
(i) each such Lien is confined solely to the property so
purchased, improvements thereto and proceeds thereof, and
(ii) the aggregate amount of the obligations secured by all such
Liens on any particular property at any time purchased by the
Borrower, as applicable, shall not exceed 100% (if such obligations
are not subject when created to United States income taxes) or 90% (in
all other cases) of the lesser of the fair market value of such
property at such time or the actual purchase price of such property.
(d) Zoning restrictions, easements, minor restrictions on the use of
real property, minor irregularities in title thereto and other minor Liens
that do not in the aggregate materially detract from the value of a property
or Asset to, or materially impair its use in the business of, the Borrower.
6.05. Transactions With Affiliates. The Borrower shall not, and shall
not permit any Subsidiary to, enter into or carry out any transaction with
(including, without limitation, purchase or lease property or services to,
loan or advance to or enter into, suffer to remain in existence or amend any
contract, agreement or arrangement with) any Affiliate of the Borrower, or
directly or indirectly to do any of the foregoing, except transactions with
Affiliates in good faith and on terms no less favorable to the Borrower or
any Subsidiary than those that could have been obtained in a comparable
transaction on an arm's length basis from an unrelated Person.
6.06. Limitation or Other Restrictions on Dividends by Subsidiaries
etc. The Borrower shall not permit any Subsidiary to be or become subject
to any restriction of any nature (whether arising by operation of Law, by
agreement, by its articles of incorporation, by-laws or other constituent
documents of such Subsidiary, or otherwise) on the right of such Subsidiary
from time to time to: (i) declare and pay dividends or other distributions
with respect to capital stock owned by the Borrower or any Subsidiary, (ii)
pay any indebtedness, obligations or liabilities from time to time owed to
the Borrower or any Subsidiary except legal restrictions of general
applicability under the corporation law under which such Subsidiary is
incorporated, and fraudulent conveyance or similar laws or general
applicability for the benefit of creditors of such Subsidiary generally.
6.07. Loans and Investments. The Borrower shall not and shall not
permit any Subsidiary to, at any time make or suffer to remain outstanding
any loan or advance to, or purchase, acquire or own any stock, bonds, notes
or securities of, or any partnership interest (whether general or limited)
in, or any other interest in, or make any capital contribution to, any other
Person, or agree, become or remain liable to do any of the foregoing,
except:
(a) trade credit extended, and loans and advances extended to
subcontractors or suppliers, under usual and customary terms in the ordinary
course of business;
(b) advances to employees to meet expenses incurred by such employees
in the ordinary course of business, advances to employees against
commissions or bonuses paid in accordance with the terms of any formal
commission/bonus plan, or to meet expenses incurred by such employees in the
ordinary course of such business, or to meet education and relocation
related expenses incurred in the Borrower's interest;
(c) loans from a Subsidiary to the Borrower or to another Subsidiary
or loans from the Borrower to a Subsidiary:
(d) investments in the capital stock of a Subsidiary owned on the date
hereof;
(e) investments permitted by the Borrower's Investment Management
Policy for cash investments, as such is presently in effect and disclosed to
the Banks;
(f) money market or mutual fund investments from time acquired or
maintained by the Borrower if acquired for investment in the ordinary course
of business;
(g) investments in an amount at any time outstanding not to exceed
$10,000,000 with respect to any one transaction and $25,000,000 in the
aggregate, provided that no Potential Default or Event of Default has
occurred and is continuing or would occur after giving effect thereto and,
provided such investments are in Persons whose activities are within the
scope of the Borrower's activities at the time of the particular investment.
6.08. Sale-Leasebacks. The Borrower shall not, and shall not permit
any Subsidiary to, at any time enter into or suffer to remain in effect any
transaction to which the Borrower or such Subsidiary is a party involving
the sale, transfer or other disposition by the Borrower or any Subsidiary of
any property (now owned or hereafter acquired), with a view directly or
indirectly to the leasing back of any part of the same property or any other
property used for the same or a similar purpose or purposes in an aggregate
amount in excess of $20,000,000 at any time outstanding.
6.09. Business. The Borrower will not and will not permit any
Subsidiary to engage (directly or indirectly) in any businesses other than
the businesses in which the Borrower and its Subsidiaries are engaged on the
Closing Date and any businesses reasonably related thereto, including any
investment in blood centers.
6.10. Disposition of Stock In and Indebtedness of Subsidiaries. The
Borrower will not directly or indirectly sell or otherwise dispose of, or
part with control of, any shares of capital stock of a Subsidiary (or any
Indebtedness of a Subsidiary) and the Borrower will not permit any
Subsidiary directly or indirectly to issue, sell or otherwise dispose of, or
part with control of, any shares of capital stock of itself or another
Subsidiary (or any Indebtedness of itself or another Subsidiary) (an
"indirect" disposition or issuance of shares of capital stock shall include
but not be limited to disposition or issuance of warrants, rights or options
for, or securities convertible into, such shares), except:
(i) a Subsidiary may issue and dispose of shares of its own
capital stock pursuant to a stock dividend or recapitalization not
forbidden by Section 6.02 hereof; and
(ii) the Borrower may sell or otherwise dispose of the capital
stock and Indebtedness of a Subsidiary in a single transaction if the
capital stock or Indebtedness to be sold or disposed of does not
represent more than 20% of the Consolidated Net Worth of the Borrower
and its Consolidated Subsidiaries and as long as no Event of Default
or Potential Default exists at the time or after the occurrence of the
transaction.
ARTICLE VII
EVENTS OF DEFAULT
-----------------
7.01. Events of Default. If one or more of the following described
Events of Default shall occur, that is to say:
(a) The Borrower shall default in the payment when due of the
principal of any Loan;
(b) The Borrower shall default in the payment when due of any
interest, Commitment Fees, or any other fee or amount payable hereunder
which default shall continue for a period of five (5) days from the due date
thereof;
(c) The Borrower shall default in the observance, performance or
fulfillment of any covenant contained in Article VI hereof;
(d) The Borrower shall default (i) in any payment of principal of or
interest on any other obligation for borrowed money in principal amount of
$200,000 or more beyond any period of grace provided with respect thereto,
or (ii) in the performance of any other agreement, term or condition
contained in any such agreement under which any such obligation in principal
amount of $100,000 or more is created, if the effect of such default is to
cause or permit the holder or holders of such obligation (or trustee on
behalf of such holder or holders) to cause such obligation to become due
prior to its stated maturity;
(e) One or more judgments for the payment of money shall have been
entered against the Borrower which judgment/s exceed $100,000 in the
aggregate and such judgment/s shall remain undischarged or uncontested or
appealed in good faith for a period of thirty (30) consecutive days;
(f) Any representation or warranty herein made by the Borrower, or any
certificate or financial statement furnished pursuant to the provisions
hereof, shall prove to have been false or misleading in any material respect
as of the time made or furnished;
(g) The Borrower shall default in the observance, performance or
fulfillment of any other covenant, condition or provision hereof and such
default shall not be remedied for a period of twenty (20) days after written
notice thereof to the Borrower from a Bank or the holder of any Note issued
hereunder;
(h) Any Controlled Group Member shall fail to pay when due any amount
which it shall have become liable to pay under Title IV of ERISA; or notice
of intent to terminate any Plan shall be filed under Title IV of ERISA by
any Controlled Group Member, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV of
ERISA to terminate, to impose liability in respect of, or to cause a trustee
to be appointed to administer any Plan; or a condition shall exist by reason
of which the PBGC would be entitled to obtain a decree adjudicating that any
Plan must be terminated; or there shall occur a complete or partial
withdrawal from, followed by a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans by one
or more Controlled Group Members;
(i) A Change in Control shall occur;
(j) A decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Borrower a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the
Borrower under the Federal bankruptcy laws, or any other similar applicable
Federal or State law, and such decree or order shall have continued
undischarged or unstayed for a period of sixty (60) days; or a decree or
order of a court having jurisdiction in the premises for the appointment of
a receiver or liquidator or trustee or assignee in bankruptcy or insolvency
of the Borrower or a substantial part of its property, or for the winding up
or liquidation of its affairs, shall have been entered, and such decree or
order shall have remained in force undischarged and unstayed for a period of
sixty (60) days;
(k) The Borrower shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
reorganization under the Federal bankruptcy laws, or any other similar
applicable Federal or State law, or shall consent to the filing of any such
petition, or shall consent to the appointment of a receiver or liquidator or
trustee or assignee in bankruptcy or insolvency of it or of a substantial
part of its property, or shall make an assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts
generally as they become due, or corporate action shall be taken by the
Borrower in furtherance of any of the aforesaid purposes;
then, (i) as to any Event of Default specified under subsections (a) through
(i) of this Article VII, both Banks shall be under no further obligation to
make Loans hereunder and may, by separate written notice to the Borrower,
each Bank may declare the unpaid balance of all of its Loans then
outstanding and interest accrued thereon and all other liabilities of the
Borrower hereunder and thereunder to be forthwith due and payable, and the
same shall thereupon become and be immediately due and payable, without
presentment, demand, protest or notice or any kind, all of which are hereby
expressly waived; and (ii) as to any Event of Default specified under
subsections (j) or (k) of this Article VII, both Banks shall be under no
further obligation to make Loans hereunder and the unpaid balance of all
Loans from both Banks outstanding hereunder and interest accrued thereon and
all other liabilities of the Borrower hereunder and thereunder shall be
immediately due and payable, without presentment, demand, protest or notice
of any kind, all of which are hereby expressly waived. Each Bank has the
right to act independently from the other Bank in declaring a default and
exercising its remedies under this Agreement.
ARTICLE VIII
MISCELLANEOUS
-------------
8.01. No Implied Waiver etc. No delay or failure of a Bank, or the
holder of any Note in exercising any right, power or privilege hereunder
shall affect such right, power or privilege; nor shall any single or partial
exercise thereof or any abandonment or discontinuance of steps to enforce
such a right, power or privilege preclude any further exercise thereof or of
any other right, power or privilege. The rights and remedies hereunder of a
Bank and any holder of the Note are cumulative and not exclusive of any
rights or remedies which, it or they would otherwise have. Any amendment,
waiver, permit, consent or approval of any kind or character on the part of
each Bank of any breach or default under this Agreement or any such waiver
of any provision or condition of this Agreement must be in writing and shall
be effective only to the extent in such writing specifically set forth.
8.02. Set-Off. In case any one or more of the Events of Default
described in Article VII hereof shall occur, or upon the happening of any
Potential Default, the holder of any Note shall have the right, in addition
to all other rights and remedies available to it, to set-off against the
unpaid balance of the Note held by it any debt owing by such holder to the
Borrower, including without limitation any funds in any deposit account
maintained by the Borrower with such holder, and such holder shall have and
there is hereby created in favor of such holder a security interest in all
deposit accounts maintained by the Borrower with such holder. Any sums
obtained by the holder of any Note issued hereunder by way of counterclaim,
set-off, banker's lien or other lien for application upon any Note held by
it shall be shared pro rata with the holders of the other Notes. Nothing in
this Agreement shall be deemed any waiver or prohibition of any right of
banker's lien or set-off under applicable Law.
8.03. Survival of Provisions. All representations, warranties,
covenants and agreements of the Borrower contained herein or made in writing
in connection herewith shall survive the execution and delivery of this
Agreement, the making of Loans hereunder and the issuance of the Notes.
8.04. Expenses and Fees: Indemnity. The Borrower agrees to pay and
save each Bank harmless against liability for the payment of, all expenses
of the Bank (including the reasonable fees and expenses of counsel for such
Bank which for all purposes hereof shall include counsel employed by such
Bank) arising in connection with the preparation and negotiation of this
Agreement and the Notes, enforcement or collection thereof and relating to
consents, amendments and waivers hereof. Unless caused by each Bank's gross
negligence or willful misconduct, the Borrower further agrees to indemnify,
defend and hold each Bank, its officers, directors and employees harmless
from and against all claims, losses, causes of action, damages, liabilities,
expenses and costs of any kind which are in any way sustained by each Bank
and which arise out of or are incident to the breach by the Borrower of any
of its representations hereunder or the failure of the Borrower or any
Subsidiary to comply with any Environmental Law.
8.05. Each Bank acknowledges that it has, independently and without
reliance upon the other Bank and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Each Bank also acknowledges that it will,
independently and without reliance upon the other Bank and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement or any other loan document, any related agreement
or any document furnished hereunder or thereunder.
Neither Bank nor any of its respective directors, officers, employees
or agents shall be liable as such for any action taken or omitted by any of
them except for its or his own gross negligence or willful misconduct or be
responsible for any statement, warranty or representation herein or the
contents of any document delivered in connection herewith, or be required to
ascertain or to make any inquiry concerning the performance or observance by
the Borrower of any of the terms, conditions, covenants or agreements
contained in any related loan document. Neither Bank shall be responsible
to the other Bank for the due execution, genuineness, validity,
enforceability or effectiveness of this Agreement, or any other loan
documents or other instruments or agreements. Each Bank shall in all cases
be fully protected in acting, or refraining from acting, in accordance with
its own credit analysis and decision-making for its respective Loans,
including any remedies exercised relating thereto. Neither Bank nor any of
its respective directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure of or delay in
performance or breach by the other Bank of any of its obligations hereunder
or to the other Bank on account of the failure of or delay in performance or
breach by the Borrower of any of its respective obligations hereunder or
under any other Loan document or in connection herewith or therewith. With
respect to the Loans made by it hereunder, each Bank acknowledges that it is
acting in its individual capacity and not as an agent or jointly with the
other Bank and each shall have the same rights and powers as the other Bank
as provided herein.
8.06. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other loan document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein
shall not in any way be affected or impaired thereby. The parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
8.07. Holidays. Unless otherwise specified herein, whenever any
payment or action to be made or taken hereunder or under the Notes shall be
stated to be due on a Saturday, Sunday or public holiday under the laws of
the Commonwealth of Pennsylvania, such payment or action shall be made or
taken on the next succeeding Business Day and such extension of time shall
in such case be included in computing interest, if any, in connection with
such payment or action.
8.08. Notices, etc. Any notice or other communication in connection
with this Agreement shall be deemed to have been given or made when received
by the party to whom directed. All such notices and other communications
shall be in writing unless otherwise provided herein and shall be directed,
if to Mellon, to ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Loan Administration; if to Bank of Boston, to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Mail Stop No. 01-07-07, Attention: ▇▇▇▇▇▇
▇▇▇▇▇▇▇; and if to the Borrower, Haemonetics Corporation, ▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. Makes, Chief Financial Officer, in
accordance with the latest unrevoked written direction from any party to the
other parties hereto.
8.09. Governing Law: Waiver of Jury Trial. This Agreement and the
Notes issued hereunder shall be deemed to be contracts under the laws of the
Commonwealth of Massachusetts and for all purposes shall be construed in
accordance with the laws of said Commonwealth without regard to conflicts of
law principles. All parties hereby waive their respective rights to a jury
trial with respect to any action arising in connection with this Agreement,
the Notes or any other loan document.
8.10. Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts,
each of which, when so executed and delivered, shall be an original, but all
such counterparts shall together constitute one and the same instrument.
8.11. Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Borrower may not assign
or otherwise transfer any of its rights or duties under this Agreement
without the prior written consent of each Bank. Each Bank may assign all or
part of its rights and duties under this Agreement to one or more financial
institutions or other entities with, if an Event of Default or a Potential
Default has not occurred and is continuing, the prior written consent of the
Borrower, which consent shall not be unreasonably withheld. Each Bank may
freely grant participations in its Commitment and its Loans without the
consent of or notice to the Borrower.
IN WITNESS WHEREOF, the parties hereto, by their respective officers
thereunto duly authorized, have executed this Agreement as of the day and
year first above written.
HAEMONETICS CORPORATION
By: ▇▇▇▇▇▇ ▇. Makes
-----------------------------
(Signature)
Name:
--------------------------
Title: Vice President
--------------------------
MELLON BANK, N.A.
By: ▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
(Signature)
Name:
----------------------------
Title: Vice President
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▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Loan Administration
COMMITMENT AMOUNT: $10,000,000.00
THE FIRST NATIONAL BANK OF BOSTON
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇
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(Signature)
Name:
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Title: Director
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Address:
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COMMITMENT AMOUNT: $10,000,000.00
EXHIBIT A
HAEMONETICS CORPORATION
$10,000,000.00 Boston, Massachusetts
Dated: October 1, 1996
FOR VALUE RECEIVED, the undersigned, Haemonetics Corporation, a
Massachusetts corporation (the "Borrower"), hereby promises to pay to the
order of [Name of Bank]., (the "Bank") on the Maturity Date for each Loan
made by the Bank to the Borrower pursuant to the Agreement described below
the lesser of (i) the principal sum of Ten Million Dollars
($10,000,000.00) and (ii) the unpaid principal amount of all such Loans made
by the Bank maturing on such Maturity Date. The Borrower further promises to
pay to the order of the Bank interest on the unpaid principal amount hereof
from time to time outstanding at the rate or rates per annum determined
pursuant to Section 2.05 of, or as otherwise provided in, the Agreement,
payable on the dates set forth in the Agreement.
This Promissory Note is one of the Notes referred to in the Revolving Credit
Agreement dated as of October 1, 1996 among the Borrower, Mellon Bank, N.A.
and The First National Bank of Boston (as the same may have been or may
hereafter be amended or modified. the "Agreement"), which Agreement, among
other things, contains provisions for prepayments on account of principal
hereof prior to the maturity hereof and also for acceleration of the
maturity hereof upon the happening of certain stated events, upon the terms
and conditions therein specified. Terms defined in the Agreement shall have
the same meanings herein.
The Borrower hereby expressly waive presentment, demand, protest, and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement of this Note and the Agreement, and an
action for amounts due hereunder or thereunder shall immediately accrue upon
the expiration of any grace period.
This Note shall be governed by, construed and enforced in accordance with
the laws of the Commonwealth of Massachusetts, without regard to conflicts
of law principles.
HAEMONETICS CORPORATION
By: ▇▇▇▇▇▇ ▇. Makes
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(Signature)
Name:
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Title: Vice President
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