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EXHIBIT 1
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CREDIT AGREEMENT
DATED AS OF APRIL 15, 1996
AMONG
BRUNSWICK BIOMEDICAL CORPORATION
AS BORROWER,
VARIOUS LENDERS
AND
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION,
AS AGENT FOR THE LENDERS
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TABLE OF CONTENTS
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ARTICLE 1. DEFINITIONS
SECTION 1.1. Defined Terms ............................................................................. 2
SECTION 1.2. Use of Defined Terms ..................................................................... 25
SECTION 1.3. Cross-References ......................................................................... 25
SECTION 1.4 Accounting and Financial Determinations ................................................. 25
ARTICLE 2. COMMITMENTS
SECTION 2.1. Bridge Loan ............................................................................... 25
SECTION 2.2. Term Loan and Revolving Loan Commitment ................................................... 25
SECTION 2.2.1. Term Loan ............................................................................... 25
SECTION 2.2.2. Revolving Loan Commitment ................................................................. 25
SECTION 2.2.3. Limitations on Revolving Credit Commitment ............................................... 26
SECTION 2.3. Establishment of Reserves ................................................................. 26
SECTION 2.4. Commitment Fee ........................................................................... 26
SECTION 2.5. Increased Costs; Capital Adequacy ......................................................... 26
ARTICLE 3. LOANS AND NOTES
SECTION 3.1. Borrowing Procedure ....................................................................... 28
SECTION 3.2. Notes ..................................................................................... 28
SECTION 3.3. Principal Payments ....................................................................... 29
SECTION 3.3.1. Repayments and Prepayments ............................................................... 29
SECTION 3.3.2. Application ............................................................................... 31
SECTION 3.3.3. Revolving Loans on Borrower's Behalf ..................................................... 31
SECTION 3.4. Interest ................................................................................. 32
SECTION 3.4.1. Bridge Loan Rate ......................................................................... 32
SECTION 3.4.2. Term Loan Rate ........................................................................... 32
SECTION 3.4.3. Revolving Loan Rate ....................................................................... 32
SECTION 3.4.4. Continuation and Conversion Elections ..................................................... 32
SECTION 3.4.5. Post-Default Rates ....................................................................... 33
SECTION 3.4.6. Payment Dates ............................................................................. 33
SECTION 3.4.7. Rate Determinations ....................................................................... 34
SECTION 3.4.8. Limitation on Types of Loans ............................................................. 34
SECTION 3.4.9. Illegality ............................................................................... 34
SECTION 3.4.10. Treatment of Affected Loans ............................................................... 34
SECTION 3.4.11. Compensation ............................................................................. 35
SECTION 3.5. Taxes ..................................................................................... 35
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SECTION 3.6. Payments, Interest Rate Computations, Other Computations, etc. ............................ 37
SECTION 3.7. Proration of Payments ..................................................................... 37
SECTION 3.8. Setoff ................................................................................... 38
SECTION 3.9. Use of Proceeds ........................................................................... 38
SECTION 3.10. Replacement of Lender under Certain Circumstances ......................................... 38
ARTICLE 4. CONDITIONS TO LOANS
SECTION 4.1. Bridge Loan ............................................................................... 39
SECTION 4.1.1. Resolutions, etc. ......................................................................... 39
SECTION 4.1.2. Bridge Notes .............................................................................. 40
SECTION 4.1.3. Subsidiary Guaranty ....................................................................... 40
SECTION 4.1.4. No Contest, etc. .......................................................................... 40
SECTION 4.1.5. Certificate as to Completed Conditions, Warranties, No Default, etc. ...................... 40
SECTION 4.1.6. Opinions of Counsel ....................................................................... 41
SECTION 4.1.7. Closing Fees, Expenses, etc. .............................................................. 41
SECTION 4.1.8. Security Documents and Perfection ......................................................... 41
SECTION 4.1.9. Employment Agreements; Compensation ....................................................... 42
SECTION 4.1.10. Pension and Welfare Liabilities ........................................................... 42
SECTION 4.1.11. Insurance ................................................................................. 42
SECTION 4.1.12. Key Man Insurance ......................................................................... 42
SECTION 4.1.13. Financial Information, etc. ............................................................... 43
SECTION 4.1.14. Solvency, etc. ........................................................................... 43
SECTION 4.1.15. Acquisition ............................................................................... 43
SECTION 4.1.16. Cash Reserve Fund ......................................................................... 43
SECTION 4.1.17. Capital Contributions; Junior Subordinated Note ........................................... 44
SECTION 4.1.18. Other Documents, Certificates, Etc. ....................................................... 44
SECTION 4.2 Term Loan and Revolving Loans ............................................................. 44
SECTION 4.2.1 Resolutions, etc. ......................................................................... 44
SECTION 4.2.2. Term Notes and Revolving Notes ........................................................... 45
SECTION 4.2.3 STI Subsidiary Guaranty ................................................................... 45
SECTION 4.2.4. Release of Liens on Assets ............................................................... 45
SECTION 4.2.5. No Contest, etc. .......................................................................... 45
SECTION 4.2.6. Certificate as to Completed Conditions, Warranties, No Default, etc. ...................... 46
SECTION 4.2.7. Opinions of Counsel ....................................................................... 46
SECTION 4.2.8. Assumption Agreement ..................................................................... 46
SECTION 4.2.9. Security Documents and Perfection ......................................................... 47
SECTION 4.2.10 Financial Information, etc................................................................. 48
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SECTION 4.2.11 Solvency, etc. ........................................................................... 48
SECTION 4.2.12. Merger of Brunswick into STI ............................................................. 48
SECTION 4.2.13. Maturity of Bridge Loan ................................................................... 49
SECTION 4.2.14. Reaffirmation of Representations and Warranties ........................................... 49
SECTION 4.2.15. No Dividends; etc. ....................................................................... 49
SECTION 4.3. All Loans ................................................................................. 50
SECTION 4.3.1. Compliance with Warranties, No Default, etc. ............................................. 50
SECTION 4.3.2. Borrowing Request, etc. ................................................................... 50
SECTION 4.3.3. Satisfactory Legal Form ................................................................... 51
SECTION 4.3.4. Margin Regulations ....................................................................... 51
SECTION 4.3.5. Adverse Change ........................................................................... 51
SECTION 4.3.6. Change in Law ............................................................................. 51
ARTICLE 5. WARRANTIES, ETC.
SECTION 5.1. Organization, Power, Authority, etc. ...................................................... 51
SECTION 5.2. Due Authorization ......................................................................... 52
SECTION 5.3. Validity, etc. ............................................................................ 52
SECTION 5.4. Financial Information; Solvency ........................................................... 52
SECTION 5.5. Material Adverse Change ................................................................... 53
SECTION 5.6. Absence of Default ....................................................................... 53
SECTION 5.7. Litigation, Legislation, etc. ............................................................. 53
SECTION 5.8. Regulations G, T, U and X ................................................................. 54
SECTION 5.9. Government Regulation ..................................................................... 54
SECTION 5.10. Taxes ..................................................................................... 54
SECTION 5.11. Pension and Welfare Plans ................................................................. 54
SECTION 5.12. Labor Controversies ....................................................................... 56
SECTION 5.13. Ownership of Properties; Collateral ....................................................... 56
SECTION 5.14. Intellectual Property ..................................................................... 57
SECTION 5.15. Accuracy of Information ................................................................... 57
SECTION 5.16. Insurance ................................................................................. 57
SECTION 5.17. Certain Indebtedness ..................................................................... 57
SECTION 5.18. Environmental Matters ..................................................................... 57
SECTION 5.19. No Burdensome Agreements ................................................................. 58
SECTION 5.20. Consents ................................................................................. 58
SECTION 5.21. Contracts ................................................................................. 58
SECTION 5.22. Employment Agreements ..................................................................... 58
SECTION 5.23. Condition of Property ..................................................................... 58
SECTION 5.24. Subsidiaries ............................................................................. 58
SECTION 5.25. Acquisition Agreement ..................................................................... 58
SECTION 5.26. Trade Relations ........................................................................... 59
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ARTICLE 6. COVENANTS
SECTION 6.1. Affirmative Covenants. .................................................................... 59
SECTION 6.1.1. Financial Information, etc. ............................................................... 59
SECTION 6.1.2. Maintenance of Corporate Existence, etc. .................................................. 61
SECTION 6.1.3. Foreign Qualification ..................................................................... 61
SECTION 6.1.4. Payment of Taxes, etc. ................................................................... 61
SECTION 6.1.5. Insurance ................................................................................. 62
SECTION 6.1.6. Notice of Default, Litigation, etc. ....................................................... 62
SECTION 6.1.7. Books and Records ......................................................................... 64
SECTION 6.1.8. Maintenance of Properties, Etc............................................................. 64
SECTION 6.1.9. Maintenance of Licenses and Permits ....................................................... 64
SECTION 6.1.10. Employee Plans ........................................................................... 64
SECTION 6.1.11. Environmental Management................................................................... 64
SECTION 6.1.12. Compliance with Laws ..................................................................... 64
SECTION 6.1.13. Interest Rate Protection ................................................................. 65
SECTION 6.1.14. Real Estate ............................................................................... 65
SECTION 6.1.15. Merger of Brunswick into STI ............................................................. 65
SECTION 6.1.16. Cash Reserve Account ..................................................................... 65
SECTION 6.1.17. Private Placements ....................................................................... 65
SECTION 6.2. Negative Covenants ....................................................................... 66
SECTION 6.2.1. Business Activities ....................................................................... 66
SECTION 6.2.2. Indebtedness ............................................................................. 66
SECTION 6.2.3. Liens ..................................................................................... 67
SECTION 6.2.4. Financial Condition ....................................................................... 69
SECTION 6.2.5. Capital Expenditures....................................................................... 70
SECTION 6.2.6. Lease Obligations ......................................................................... 71
SECTION 6.2.7. Investments ............................................................................... 71
SECTION 6.2.8. Restricted Payments, etc. ................................................................. 72
SECTION 6.2.9. Take or Pay Contracts; Sale/Leasebacks ................................................... 72
SECTION 6.2.10. Consolidation, Merger, Subsidiaries, etc. ................................................. 72
SECTION 6.2.11. Asset Dispositions, etc. ................................................................. 73
SECTION 6.2.12. Modification of Organic Documents, etc..................................................... 73
SECTION 6.2.13. Transactions with Affiliates ............................................................. 73
SECTION 6.2.14. Inconsistent Agreements ................................................................... 73
SECTION 6.2.15. Change in Accounting Method ............................................................... 74
SECTION 6.2.16. Change in Fiscal Year End ................................................................. 74
SECTION 6.2.17. Compliance with ERISA ..................................................................... 74
SECTION 6.2.18. Limitation on Restrictions on Subsidiary Dividends ....................................... 74
SECTION 6.2.19. Modification of Certain Documents ......................................................... 74
SECTION 6.2.20. Prohibition on Voluntary Prepayments on Subordinated Indebtedness ......................... 75
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SECTION 6.2.21. Prohibition on Actions Triggering Redemption of Series D Stock ............................ 75
ARTICLE 7. EVENTS OF DEFAULT
SECTION 7.1. Events of Default ......................................................................... 75
SECTION 7.1.1. Non-Payment of Obligations ............................................................... 75
SECTION 7.1.2. Non-Performance of Certain Covenants ..................................................... 75
SECTION 7.1.3. Defaults Under Other Loan Documents; Non-Performance of Other Obligations ................. 75
SECTION 7.1.4. Bankruptcy, Insolvency, etc. .............................................................. 76
SECTION 7.1.5. Breach of Warranty ....................................................................... 76
SECTION 7.1.6. Default on Other Indebtedness, etc. ....................................................... 76
SECTION 7.1.7. Failure of Valid, Perfected Security Interest ............................................. 77
SECTION 7.1.8. Employee Plans ........................................................................... 77
SECTION 7.1.9. Judgments ................................................................................. 78
SECTION 7.1.10. Cessation of Business, Dissolution ....................................................... 78
SECTION 7.1.11. Subordinated Debt Documents ............................................................... 78
SECTION 7.2. Action if Bankruptcy ..................................................................... 78
SECTION 7.3. Action if Other Event of Default ......................................................... 78
ARTICLE 8. THE AGENT
SECTION 8.1. Actions ................................................................................... 79
SECTION 8.2. Funding Reliance, etc. ................................................................... 79
SECTION 8.3. Exculpation ............................................................................... 80
SECTION 8.4. Successor ................................................................................. 80
SECTION 8.5. Loans by the Agent ....................................................................... 80
SECTION 8.6. Credit Decisions ......................................................................... 80
SECTION 8.7. Copies, etc. ............................................................................. 81
ARTICLE 9. MISCELLANEOUS
SECTION 9.1. Waivers, Amendments, etc. ................................................................. 81
SECTION 9.2. Notices ................................................................................... 82
SECTION 9.3. Costs and Expenses ........................................................................ 83
SECTION 9.4. Indemnification ........................................................................... 84
SECTION 9.5. Survival ................................................................................. 85
SECTION 9.6. Severability ............................................................................. 86
SECTION 9.7. Headings ................................................................................. 86
SECTION 9.8. Counterparts, Effectiveness, etc. ......................................................... 86
SECTION 9.9. Governing Law; Entire Agreement ........................................................... 86
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SECTION 9.10. Successors and Assigns ................................................................... 87
SECTION 9.11. Sale and Transfers, Participations, etc. ................................................. 87
SECTION 9.12. Other Transactions ....................................................................... 89
SECTION 9.13. Confidentiality ........................................................................... 90
SECTION 9.14. Change in Accounting Principles ........................................................... 90
SECTION 9.15. Waiver of Jury Trial, Etc. ............................................................... 90
SECTION 9.16. Limitation of Liability ................................................................... 91
SECTION 9.17. Usury Savings Clause ..................................................................... 91
SECTION 9.18. Effectiveness of Execution and Delivery by STI ........................................... 92
SCHEDULES AND EXHIBITS
Schedule 1 - Disclosure Schedule
Exhibit A - Assumption Agreement
Exhibit B - Borrowing Request
Exhibit C-1 - Bridge Note
Exhibit C-2 - Revolving Note
Exhibit C-3 - Term Note
Exhibit D - Compliance Certificate
Exhibit E - Continuation/Conversion Notice
Exhibit F - Acknowledgment of Interest Rate Contract Counterparty
Exhibit G - Transfer Supplement
Exhibit H - Opinion of Counsel to STI
(to be delivered on the Merger Consummation Date)
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of April 15, 1996, among BRUNSWICK
BIOMEDICAL CORPORATION, a Massachusetts corporation ("Brunswick"), various
lenders as are, or may become, parties hereto (individually a "Lender" and,
collectively, the "Lenders"), and INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL
CORPORATION, a Delaware corporation, as Agent for the Lenders.
W I T N E S S E T H:
RECITALS.
A. Pursuant to a Stock Purchase Agreement, dated as of
March 18, 1996, between Brunswick and the Estate of ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Brunswick has agreed to acquire 1,888,126 shares of Common Stock, $.10 par
value, of Survival Technology, Inc., a Delaware corporation ("STI");
B. After giving effect to such acquisition, Brunswick
will seek to merge with and into STI (the "Merger"), with STI being the
surviving corporation and assuming all obligations of Brunswick hereunder;
C. Brunswick desires to obtain from the Lenders (a) a
Bridge Loan in an aggregate principal amount of Eleven Million Dollars
($11,000,000) having an initial maturity on October 15, 1996, unless extended
for an additional ninety-day period as permitted herein, $10,000,000 of which
will be converted, upon consummation of the Merger, into a Term Loan in the
principal amount of Ten Million Dollars ($10,000,000) having a final maturity
on the fifth anniversary of the Merger; and (b) a Revolving Loan Commitment in
an aggregate amount of up to Five Million Dollars ($5,000,000), pursuant to
which Revolving Loans will be made to the Borrower from time to time from the
date of the Merger to but excluding the Revolving Loan Commitment Termination
Date;
D. The Lenders are willing, on the terms and conditions
set forth herein (a) to make such Bridge Loan on the date hereof and (b) upon
consummation of the Merger to convert up to $10,000,000 of the outstanding
principal balance of the Bridge Loan into the Term Loan and to extend the
Revolving Loan Commitment; and
E. The Bridge Loan, the Term Loan and the Revolving
Loans will be used in the manner described in Section 3.9 below;
NOW, THEREFORE, the parties hereto, intending to be legally bound,
agree as follows:
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ARTICLE 1.
DEFINITIONS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Acquisition" means the acquisition by Brunswick from the
Estate of 1,888,126 shares of Common Stock, $.10 par value, of STI in exchange
for the payment of the Purchase Price pursuant to the terms and conditions of
the Acquisition Agreement.
"Acquisition Agreement" means that certain Stock Purchase
Agreement, dated as of March 18, 1996, between Brunswick and the Estate, as
amended, modified or supplemented to the date hereof.
"Affiliate" of any Person means any other Person which,
directly or indirectly, controls or is controlled by or under common control
with such Person (excluding any trustee under, or any committee with
responsibility for administering, any Plan). A Person shall be deemed to be
"controlled by" any other Person if such other Person possesses, directly or
indirectly, power (a) to vote 5% or more of the securities having ordinary
voting power for the election of directors of such Person, or (b) to direct or
cause the direction of the management or policies of such Person whether by
contract or otherwise; provided that (i) no Lender shall be deemed to
constitute an Affiliate of the Borrower, and (ii) no member of the ▇▇▇▇▇▇
family or their transferees who owns, directly or indirectly, together with all
other members of the ▇▇▇▇▇▇ family or such transferees, 10% or less of the
securities having ordinary voting power for the election of directors of
Technology shall be deemed to constitute an Affiliate of the Borrower or of
Technology.
"Agent" means ING as agent for the Lenders pursuant hereto, or
such other Person as shall have subsequently been appointed as the successor
agent pursuant to Section 8.4.
"Agreement" means, on any date, this Credit Agreement as
originally in effect on the Closing Date and as thereafter from time to time
amended, supplemented, amended and restated, extended or otherwise modified and
in effect.
"Applicable Lending Office" means, with respect to any Lender,
the branch or office of such Lender at which Loans of a certain type are
maintained.
"Assumption Agreement" means the Assumption Agreement and
Supplement to Pledge and Security Agreement, dated as of the Merger
Consummation Date, to be executed and delivered by STI in favor of the Agent
and the Lenders in the form of Exhibit A.
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"Authorized Officer" means, relative to any Loan Party those
officers of such Loan Party whose signatures, incumbency and authority shall
have been certified to the Agent and the Lenders pursuant to Section 4.1.1 or
Section 4.2.1.
"Base Rate Loans" means Loans, or portions thereof, interest
rates on which are determined on the basis of the ING Alternate Base Rate.
"Borrower" means, except as otherwise specified in Article 5,
(a) at all times prior to the Merger Consummation Date, Brunswick, and (b) at
all times on and after the Merger Consummation Date, STI.
"Borrowing" means the Loans or portions thereof of the same
type and, in the case of Eurodollar Loans, having the same Interest Period, in
each case made, converted or continued by the Lenders on the same Business Day
pursuant to the same Borrowing Request or Continuation/Conversion Notice in
accordance with Sections 3.1 or 3.4.4, respectively.
"Borrowing Request" means a loan request and certificate duly
executed by an Authorized Officer of the Borrower in the form of Exhibit B.
"Bridge Loan" means, collectively, the loan or loans, in an
aggregate principal amount of $11,000,000, made by the Lenders on the Closing
Date to the Borrower pursuant to Section 2.1.
"Bridge Loan Applicable Margin" shall mean (a) 2.50% during
the period commencing on the Closing Date and ending on the 180th-day following
the Closing Date and (b) 4.00% thereafter.
"Bridge Loan Commitment" means the collective commitments of
the Lenders to make the Bridge Loan pursuant to Section 2.1 if the conditions
set forth in Section 4.1 and Section 4.3 are met.
"Bridge Note" means a promissory note of the Borrower dated
the date hereof and substantially in the form of Exhibit C-1, and shall also
refer to all other promissory notes accepted from time to time in substitution
or renewal thereof.
"Bridge Percentage" of any Lender means at any time, in
respect of the Bridge Loan, the percentage set forth opposite such Lender's
signature hereto under the caption "Percentage" as the same may be adjusted
pursuant to Section 9.11.
"Brunswick" means Brunswick Biomedical Corporation, a
Massachusetts corporation.
"Brunswick Patent Assignment" means the Collateral Assignment
and Security Agreement (Patents), dated as of the Closing Date, made by
Brunswick in favor of the Agent, for its benefit and the ratable benefit of the
Lenders, as originally in effect on the Closing Date and as
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thereafter from time to time amended, supplemented, amended and restated or
otherwise modified and in effect.
"Brunswick Pledge Agreement" means the Stock and Notes Pledge
Agreement, dated as of the Closing Date, made by Brunswick in favor of the
Agent, for itself and the ratable benefit of the Lenders, as originally in
effect on the Closing Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect,
pursuant to which Brunswick shall pledge to the Agent all of the issued and
outstanding Stock of its direct Subsidiaries held by Brunswick (including,
without limitation, the STI Shares) and all promissory notes and other
instruments and securities held by Brunswick, as security for the Obligations.
"Brunswick Security Agreement" means the Security Agreement,
dated as of the Closing Date, made by Brunswick and each of its Subsidiaries
located in the United States (other than STI and its Subsidiaries and other
than the Inactive Subsidiaries) in favor of the Agent, for its benefit and the
ratable benefit of the Lenders, as originally in effect on the Closing Date and
as thereafter from time to time amended, supplemented, amended and restated or
otherwise modified and in effect.
"Brunswick Subsidiary Guaranty" means the Subsidiary Guaranty,
dated as of the Closing Date, made by each Subsidiary (other than STI and its
Subsidiaries and other than the Inactive Subsidiaries) of Brunswick located in
the United States in favor of the Agent and the Lenders, as originally in
effect on the Closing Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect.
"Brunswick Trademark Assignment" means the Collateral
Assignment and Security Agreement (Trademarks), dated as of the Closing Date,
made by Brunswick in favor of the Agent, for its benefit and the ratable
benefit of the Lenders, as originally in effect on the Closing Date and as
thereafter from time to time amended, supplemented, amended and restated or
otherwise modified and in effect.
"Business Day" means:
(a) any day which is neither a Saturday or Sunday nor a
legal holiday on which banks are authorized or required to be closed in New
York, New York; and
(b) relative to the making, continuing, prepaying or
repaying of any Eurodollar Loans, any day on which dealings in Dollars are
carried on in the London interbank market.
"Capitalized Lease Liabilities" means all monetary obligations
of the Borrower and its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, are or would be classified as capitalized
leases.
"Cash Equivalent Investment" means, at any time:
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(a) any direct obligation issued or guaranteed by the
United States of America or any agency or instrumentality thereof and backed by
the full faith and credit of the United States of America, or issued by any
state or political subdivision or public instrumentality thereof, (i) which
has a remaining maturity at the time of purchase of not more than one (1) year
or which is subject to a repurchase agreement with any Lender or any Eligible
Lending Institution exercisable within one (1) year from the time of purchase
so long as such direct obligation remains in the possession of the Borrower or
in the possession of any Lender and (ii) which, in the case of obligations of
any state or political subdivision or public instrumentality thereof, is rated
AA or better by ▇▇▇▇▇'▇ Investors Service, Inc.;
(b) certificates of deposit, time deposits, demand
deposits and bankers' acceptances, having a remaining maturity at the time of
purchase of not more than one (1) year, issued by any Lender or by any Eligible
Lending Institution;
(c) corporate obligations rated Prime-1 by ▇▇▇▇▇'▇
Investors Service, Inc. or A-1 by Standard & Poor's Corporation, having a
remaining maturity at the time of purchase of not more than one (1) year; and
(d) shares of funds registered under the Investment
Company Act of 1940, as amended, having assets of at least $100,000,000 which
invest only in obligations described above and which shares are rated by
▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Corporation in one of the
two highest rating categories assigned by such agencies for obligations of such
nature.
"Cash Flow" means, for any period, an amount equal to (without
duplication) the consolidated Net Income of the Borrower and its Subsidiaries,
plus depreciation, amortization of intangible assets and other non-cash charges
of the Borrower and its Subsidiaries, minus non-cash credits and revenues, plus
decreases in the Borrower's and its Subsidiaries' working capital (excluding
changes in cash, Cash Equivalent Investments and current maturities of
Indebtedness), minus increases in the Borrower's and its Subsidiaries' working
capital (excluding changes in cash, Cash Equivalent Investments and current
maturities of Indebtedness).
"Cash Reserve Account" means an interest-bearing cash reserve
account established by the Borrower at SunTrust Bank, Atlanta in favor of the
Agent, subject to the terms of the Cash Reserve Account Agreement, in which
account the Borrower shall deposit or cause to be deposited on the Closing
Date, out of the proceeds of the Bridge Loan, $1,000,000 and from which account
the Agent shall be irrevocably authorized by the Borrower to withdraw funds
sufficient to pay from time to time accrued and unpaid interest on the Bridge
Loan which has become due and payable.
"Cash Reserve Account Agreement" means the Collateral Account
Agreement, dated as of the Closing Date, between Brunswick, the Agent and
SunTrust Bank, Atlanta, pursuant to which Brunswick shall grant to the Agent a
security interest in the Cash Reserve Account.
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"Change in Control" means (a) at any time prior to the Merger
Consummation Date, (i) the sale, transfer or other disposition by EM
Industries, Inc. or Mylan Laboratories, Inc. of any shares of Stock held by
such Persons as of the Closing Date other than to an Affiliate of such Person,
or (ii) the failure of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (or a Person of comparable
qualifications and experience) to serve as chief executive officer of the
Borrower, and (b) from and after the Merger Consummation Date, (i) the
acquisition by any Person or group of Persons (other than an employee benefit
plan solely for employees of STI and its Subsidiaries) of beneficial ownership
of more than 20% of the outstanding Stock of the Borrower (within the meaning
of Section 13(d) or 14(d) of the Securities and Exchange Act of 1934, as
amended, and the applicable rules and regulations thereunder) other than as a
result of the Merger, (ii) during any period of 12 consecutive months (whether
commencing before or after the Merger Consummation Date), the failure of
individuals who on the first day of such period were directors of the Borrower
(together with any replacement or additional directors who were nominated or
elected by a majority of directors then in office) to constitute a majority of
the Board of Directors of the Borrower, or (iii) the failure of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(or a Person of comparable qualifications and experience) to serve as chief
executive officer of the Borrower.
"Charges" means all federal, state, county, city, municipal,
local, foreign or other governmental (including, without limitation, PBGC) (a)
taxes at the time due and payable and (b) levies, assessments, charges, liens,
claims or encumbrances upon or relating to (i) the Collateral, (ii) the
Obligations, (iii) the Borrower's and its Subsidiaries' employees, payroll,
income or gross receipts, (iv) the Borrower's and its Subsidiaries' ownership
or use of their assets, or (v) any other aspect of the Borrower's and its
Subsidiaries' business.
"Closing Date" means April 15, 1996, the date of the funding
of the Bridge Loan.
"Closing Date Pro Forma Balance Sheet" means the pro forma
balance sheet of Brunswick as of January 31, 1996 prepared by Brunswick based
on the financial statements described in clauses (a)(i) and (ii) of Section 5.4
and assuming that the transactions contemplated by this Agreement to occur on
the Closing Date, including the Acquisition and the Bridge Loan, occurred on
January 31, 1996.
"Collateral" means all property and interests in property and
proceeds thereof now owned or hereafter acquired by the Borrower or any
Subsidiary in or upon which a Lien is granted to the Agent, for its benefit and
the ratable benefit of the Lenders, under any of the Loan Documents.
"Commitment" means, collectively, the Lenders' Bridge Loan
Commitments, Revolving Loan Commitments and Term Loan Commitments.
"Commitment Letter" means the Commitment Letter dated March
18, 1996 between Brunswick and ING.
"Commonly Controlled Entity" means, with respect to any
Person, an entity or trade or business, whether or not incorporated, which is
from time to time a member of a controlled group
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14
or a group under common control with such Person within the meaning of Sections
414(b), 414(c), 414(m) or 414(o) of the IRC or Section 4001(a)(14) of ERISA.
Unless otherwise indicated in this Agreement, Commonly Controlled Entity shall
refer to a Commonly Controlled Entity with respect to the Borrower.
"Compliance Certificate" means a certificate duly executed by
the chief executive, accounting or financial Authorized Officer of the Borrower
in the form of Exhibit D, together with such changes as the Required Lenders
may from time to time reasonably request through the Agent for purposes of
monitoring the Borrower's compliance herewith.
"Consolidated Capital Expenditures" means, for any period,
without duplication, the sum of (a) the gross dollar amount of additions during
such period to property, plant, equipment and other fixed assets of the
Borrower and its Subsidiaries, including those additions made in the ordinary
course of business, but excluding routine maintenance and repairs, plus (b) the
aggregate amount of Capitalized Lease Liabilities incurred during such period
by the Borrower and its Subsidiaries.
"Continuation/Conversion Notice" means a notice of
continuation or conversion and certificate duly executed by the chief
executive, accounting or financial Authorized Officer of the Borrower in the
form of Exhibit E attached hereto.
"Contractual Obligation" means, relative to any Person, any
provision of any security issued by such Person or of any Instrument or
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Default" means any Event of Default or any condition or event
which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disclosure Schedule" means the Disclosure Schedule attached
hereto as Schedule 1, as it may be amended, supplemented or otherwise modified
from time to time by the Borrower with the consent of the Required Lenders as
provided in Section 4.3.2.
"Dollar" and the sign "$" mean lawful money of the United
States.
"EBITDA" means, for any period, an amount equal to Net Income
plus (to the extent deducted in determining Net Income) interest expense,
provisions for income taxes, depreciation and amortization of intangible
assets, in each case for the Borrower and its Subsidiaries on a consolidated
basis.
"Eligible Lending Institution" means a financial institution
having a branch or office in the United States and having capital and surplus
and undivided profits aggregating at least $100,000,000 and rated Prime-1 or
better by ▇▇▇▇▇'▇ Investors Service, Inc. or A-1 or better by Standard & Poor's
Corporation.
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"Environment" means soil, surface waters, ground waters, land,
streams, sediments, surface or subsurface strata and ambient air.
"Environmental Laws" means all federal, state, local and
foreign laws or regulations, codes, common law, consent agreements, orders,
decrees, judgments or injunctions issued, promulgated, approved or entered
thereunder relating to pollution or protection of the Environment, natural
resource or occupational health and safety.
"Environmental Liabilities and Costs" means all liabilities,
obligations, responsibilities, remedial actions, losses, damages, punitive
damages, consequential damages, treble damages, costs and expenses (including
all reasonable fees, disbursements and expenses of counsel, expert and
consulting fees and costs of investigation and feasibility studies), fines,
penalties, settlement costs, sanctions and interest incurred as a result of
any claim or demand, by any Person, whether based in contract, tort, implied or
express warranty, strict liability, criminal or civil statute, any
Environmental Law, permit, order, variance or agreement with a Governmental
Authority or other Person, arising from or related to the administration of any
Environmental Law or arising from environmental, health or safety conditions or
a release or threatened release resulting from the past, present or future
operations of the Borrower or its Subsidiaries or affecting any of their
properties, or any release or threatened release for which the Borrower or any
of its Subsidiaries is otherwise responsible under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute of similar import, together with
the regulation thereunder, in each case as in effect from time to time.
References to sections of ERISA also refer to any successor sections.
"ERISA Insolvency" or "ERISA Insolvent" means, at any
particular time, a Multiemployer Pension Plan is insolvent within the meaning
of Section 4245 of ERISA.
"Estate" means the Estate of ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
"Estate Registration Rights Agreement" means the Registration
Rights Agreement, dated September 14, 1990, between STI and the Estate,
pursuant to which the Estate was granted the right, upon the terms and subject
to the conditions set forth therein, to require STI to register the STI Shares
under the Securities Act of 1933, as amended, which right will be acquired by
Brunswick pursuant to the Acquisition Agreement and collaterally assigned to
the Agent, for its benefit and the ratable benefit of the Lenders, pursuant to
Section 4.1.8(g).
"Estate Stock Pledge Agreement" means the Stock Pledge
Agreement, dated as of the Closing Date, between the Estate and Brunswick
regarding the STI Shares.
"Estate Subordinated Note" means the Subordinated Promissory
Note, dated the Closing Date, made by Brunswick payable to the Estate in the
principal amount of $4,700,000, and delivered by Brunswick to the Estate in
partial payment of the Purchase Price.
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"Eurodollar Base Rate" means, with respect to any Borrowing of
Eurodollar Loans for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/16 of 1%) which appears on Telerate
Page 3750 for Dollar deposits comparable to the amount of such Borrowing in the
London interbank market as of 11:00 a.m. London time (or as soon thereafter as
practicable) on the date two (2) Business Days prior to the first day of such
Interest Period having a term comparable to such Interest Period. If such
Telerate Page is unavailable, the "Eurodollar Base Rate" shall mean with
respect to any Borrowing of Eurodollar Loans for any Interest Period therefor,
the arithmetic average (rounded upwards, if necessary, to the nearest 1/16 of
1%) of the rates per annum which appear on the Reuters Screen LIBO Page, or if
such Reuters Screen LIBO Page is unavailable, the "Eurodollar Base Rate" shall
mean with respect to any Borrowing of Eurodollar Loans for any Interest Period
therefor, the arithmetic average (rounded upwards, if necessary, to the nearest
1/16 of 1%) of the rates per annum for Dollar deposits comparable to the amount
of such Borrowing offered to each of the Reference Lenders in the London
interbank market as of 11:00 a.m. London time (or as soon thereafter as
practicable) on the date two (2) Business Days prior to the first day of such
Interest Period of Dollar deposits having a term comparable to such Interest
Period.
"Eurodollar Loans" means Loans or portions thereof interest
rates on which are determined on the basis of the Eurodollar Rate.
"Eurodollar Rate" means, with respect to any Borrowing of
Eurodollar Loans for any Interest Period therefor, the rate per annum (rounded
upward, if necessary, to the nearest 1/16 of 1%) determined by the Agent to be
equal to (i) the Eurodollar Base Rate for such Borrowing for such Interest
Period divided by (ii) one (1) minus the Reserve Requirement. The Eurodollar
Rate for any Interest Period will be determined initially by the Agent on the
basis of the Reserve Requirement in effect on the date two (2) Business Days
prior to the commencement of such Interest Period and, from time to time
thereafter during such Interest Period, such Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Requirement during such Interest Period.
"Event of Default" means any of the events set forth in
Section 7.1.
"Excess Cash Flow" means, for any Fiscal Year, the excess of :
(a) Cash Flow for such Fiscal Year minus (b) the sum of (i) the lesser of the
amount of Consolidated Capital Expenditures permitted during such Fiscal Year
pursuant to Section 6.2.5 and actual Consolidated Capital Expenditures during
such Fiscal Year, plus (ii) scheduled repayments of the Term Loan under clause
(c) of Section 3.3.1 during such Fiscal Year and scheduled repayments of other
Indebtedness permitted under Section 6.2.2 during such Fiscal Year.
"Extension Criteria" means (1) all filings and registrations
required to be made with the Securities and Exchange Commission in connection
with the Merger shall have been submitted and no stop order or other action
which would unreasonably delay or prevent the effectiveness of any such filing
or registration shall exist, (2) all procedural matters related to the Merger
shall have been completed by the respective Boards of Directions of Brunswick
and STI, including, without
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17
limitation, approving and authorizing the Merger, and (3) the Agent, based upon
the advice of its counsel, shall have determined to its satisfaction that there
are no material impediments to the orderly consummation of the Merger.
"Facility Fee Letter" means the letter agreement, dated as of
the Closing Date, between ING and the Borrower.
"Fair Saleable Value Balance Sheet" means, with respect to
Brunswick or STI, as the case may be, a hypothetical balance sheet of such
Person, prepared by such Person based on the Closing Date Pro Forma Balance
Sheet or the Merger Pro Forma Balance Sheet, as applicable, setting forth (a)
the assets of such Person (restated at the fair saleable value thereof based
upon such evidence of the fair saleable value thereof as such Person shall
reasonably deem pertinent), (b) the liabilities of such Person (including all
liabilities and obligations of such Person, fixed or contingent, direct or
indirect, disputed or undisputed, and whether or not required to be reflected
on a balance sheet prepared in accordance with GAAP), and (c) the excess of
such assets over such liabilities. The amount of attributed contingent
liabilities shall be discounted to reflect the likelihood that such liabilities
shall become payable.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to:
(a) the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York; or
(b) if such rate is not so published for any day which is
a Business Day, the arithmetic average of the quotations for such transactions
received by the Agent, in its sole discretion, either from (i) three federal
funds brokers of recognized standing selected by the Agent in its sole
discretion or (ii) the Reference Lenders.
"Financing Statements" means the financing statements under
the Uniform Commercial Codes of the applicable jurisdictions, filed with
respect to the Security Documents pursuant to clause (c) of Section 4.1.8 or
clause (c) or (d) of Section 4.2.9.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means, subject to Sections 6.2.16 and 9.14 (b),
(a) at any time prior to the Merger Consummation Date, the accounting period of
Brunswick commencing on the Closing Date and ending on June 30, 1996 or, if
Brunswick shall have changed its Fiscal Year end to July 31 as permitted under
Section 6.2.16, July 31, 1996, and each twelve-month accounting period ending
June 30 or July 31, as the case may be, thereafter and (b) from and after the
Merger Consummation Date, the accounting period of STI commencing on the Merger
Consummation Date and ending on
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the first July 31 to occur thereafter, and each twelve-month accounting period
ending on July 31 thereafter. References to a Fiscal Year with a number
corresponding to any calendar year (e.g., the "1996 Fiscal Year") refer to the
Fiscal Year ending on a date in such calendar year.
"Foreign Lender" means any Lender organized under the laws of
a jurisdiction outside the United States.
"F.R.S. Board" means the Board of Governors of the Federal
Reserve System (or any successor).
"GAAP" means generally accepted accounting principles in
effect from time to time in the United States.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"herein", "hereof", "hereto", "hereunder" and similar terms
contained in this Agreement or any other Loan Document refer to this Agreement
or such other Loan Document, as the case may be, as a whole and not to any
particular Section, clause or provision of this Agreement or such other Loan
Document.
"Inactive Subsidiaries" means, collectively, Brunswick
Biomedical Investment Corporation, a Massachusetts corporation, and Pharmapak,
Inc., a Delaware corporation.
"including" means including without limiting the generality of
any description preceding such term.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money
(including all notes payable and drafts accepted representing extensions of
credit) and all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments on which interest charges are customarily
paid;
(b) all obligations, contingent or otherwise, relative to
the face amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all Capitalized Lease Liabilities of such Person (to
the extent required by GAAP to be included on the balance sheet of such Person);
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(d) whether or not so included as liabilities in
accordance with GAAP (i) all obligations of such Person to pay the deferred
purchase price of property or services (excluding trade accounts payable for
other than borrowed money arising in the ordinary course of business) and
indebtedness secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have been assumed
by such Person or is limited in recourse, and (ii) all obligations of such
Person in respect of, and obligations (contingent or otherwise) to purchase or
otherwise acquire, or otherwise assure a creditor against loss in respect of,
Indebtedness of another Person;
(e) all net obligations of such Person under Interest
Rate Contracts; and
(f) all obligations of such Person to redeem, purchase or
otherwise retire or extinguish any of its Stock at a fixed or determinable date
(whether by operation of a sinking fund or otherwise), at another's option or
upon the occurrence of a condition not solely within the control of such Person
(e.g., redemption from future earnings).
"Indemnified Liabilities" has the meaning set forth in Section
9.4.
"ING" means Internationale Nederlanden (U.S.) Capital
Corporation.
"ING Alternate Base Rate" means a fluctuating rate of interest
per annum equal to the higher of:
(a) the arithmetic average of rates of interest announced
by each of the Reference Lenders from time to time at such Reference Lender's
principal New York City office as its prime (or base) rate for U.S. domestic
commercial loans; and
(b) the Federal Funds Rate from time to time in effect
plus 1/2 of 1% (0.50%).
Changes in the rate of interest on the Base Rate Loans shall take effect on the
date of each change in the ING Alternate Base Rate. The Agent shall give
notice promptly to the Borrower and the Lenders of changes in the ING Alternate
Base Rate.
"Instrument" means any contract, agreement, letter of credit,
indenture, mortgage, deed, certificate of title, document or writing (whether
by formal agreement, letter or otherwise) under which any obligation is
evidenced, assumed or undertaken, any Lien (or right or interest therein) is
granted or perfected, or any property (or right or interest therein) is
conveyed.
"Intellectual Property" means, collectively, (a) patents,
patent rights and patent applications, copyrights and copyright applications,
trademarks, trademark rights, trade names, trade name rights, service marks,
service ▇▇▇▇ rights, applications for registration of trademarks, trade names
and service marks, fictitious names registrations and trademark, trade name and
servicemark registrations, including the names "Brunswick Biomedical
▇▇▇▇▇▇▇▇▇▇▇", "▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇."
▇▇
▇▇
and all derivations thereof, and (b) patent licenses, trademark licenses,
copyright licenses and other licenses to use any of the items described in
clause (a), or any other items necessary to conduct or operate the business of
the Borrower and its Subsidiaries.
"Interest Coverage Ratio" means, for any period, the ratio of
(a) EBITDA for such period to (b) Interest Expense during such period.
"Interest Expense" means, for any period, the sum of (a) the
Borrower's consolidated interest expense accrued during such period in respect
of all Indebtedness of the Borrower and its Subsidiaries, minus (b) the
Borrower's consolidated interest expense accrued during such period in respect
of the Estate Subordinated Note and the Junior Subordinated Note to the extent
that, in accordance with the terms of the Estate Subordinated Note and the
Junior Subordinated Note, such interest expense is added to the respective
principal amounts thereof and is not paid by the Borrower in cash.
"Interest Period" means, relative to any Eurodollar Loans
comprising part of the same Borrowing, the period beginning on (and including)
the date on which such Eurodollar Loans are made or continued as, or converted
into, Eurodollar Loans pursuant to Section 3.1 or Section 3.4.4 and ending on
(but excluding) the date which numerically corresponds to such date one, two,
three or six months thereafter (or, if such month has no numerically
corresponding date, on the last Business Day of such month), in either case as
the Borrower may select in its relevant notice pursuant to Section 3.1 or
Section 3.4.4; provided, however, that:
(a) the Borrower shall not be permitted to select
Interest Periods to be in effect at any one time which have expiration dates
occurring on more than three (3) dates with respect to the Term Loan and two
(2) dates with respect to the Revolving Loans;
(b) if such Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the first
Business Day of a calendar month, in which case such Interest Period shall end
on the Business Day next preceding such numerically corresponding date);
(c) in the case of Interest Periods for Revolving Loans,
no such Interest Period may end later than the Stated Maturity Date for
Revolving Loans; and
(d) in the case of Interest Periods for the Term Loan, no
such Interest Period may end later than (i) the Stated Maturity Date of the
Term Loan, or (ii) the date of any principal repayment with respect to the Term
Loan as set forth in clause (c) of Section 3.3.1, if on such date the Borrower
otherwise would be required to repay any portion of any Borrowing prior to the
end of the Interest Period relative to such Borrowing.
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"Interest Rate Contract" means any interest rate cap agreement,
interest rate collar agreement, interest rate swap agreement or other agreement
or arrangement designed to protect against fluctuations in interest rates.
"Interest Rate Contract Counterparty" means any counterparty
to an Interest Rate Contract which the Borrower is required to enter into
pursuant to Section 6.1.13.
"Internal Revenue Service" means the Internal Revenue Service
of the United States of America.
"Investment" means, relative to any Person:
(a) any loan or advance made by such Person to any other
Person (excluding commission, travel and similar advances to officers, employees
and consultants made in the ordinary course of business);
(b) any ownership or similar interest held by such Person
in any other Person; and
(c) the purchase of any debt or equity securities or
instruments issued by any other Person (including, without limitation, Stock,
notes, debentures, drafts and acceptances, trust certificates, partnership
interests or units or membership interests in limited liability companies).
The amount of any Investment of the nature referred to in clause (a) or (b)
shall be the original principal or capital amount thereof less all returns of
principal or equity thereon (and without adjustment by reason of the financial
condition of such other Person) and shall, if made by the transfer or exchange
of property other than cash, be deemed to have been made in an original
principal or capital amount equal to the fair market value of such property.
"IRC" means the Internal Revenue Code of 1986, as amended, and
any successor statute of similar import, together with the regulations
thereunder, in each case as in effect from time to time. References to
sections of the IRC also refer to any successor sections.
"Junior Subordinated Note" means the Subordinated Promissory
Note, dated the Closing Date, made by Brunswick payable to EM Industries, Inc.
in the principal amount of $1,000,000.
"Lender" means any of the various lenders as are, or may
become, parties to this Agreement.
"Lender Parties" means, collectively, the Agent and each
Lender, and each of their respective successors and assigns, and each of the
respective officers, directors, employees, attorneys and agents of the Agent
and each Lender and of each of their respective successors and assigns,
indemnified by the Borrower as provided in Section 9.4.
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"Lien" means any mortgage, pledge, hypothecation, assignment,
charge, deposit arrangement, encumbrance, lien (statutory or other), adverse
claim or preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement, any financing lease involving substantially
the same economic effect as any of the foregoing and the filing of any
financing statement under the UCC or comparable law of any jurisdiction).
"Loan" means, as the context may require, the Bridge Loan, the
Term Loan or the Revolving Loans.
"Loan Documents" means, collectively, this Agreement, the
Notes, each Security Document, the Brunswick Subsidiary Guaranty, each
Borrowing Request, any Interest Rate Contract entered into by the Borrower with
a Lender that has executed and delivered to the Agent an acknowledgment in the
form of Exhibit F, each other Instrument executed and delivered by the Borrower
or any of its Subsidiaries as of the date hereof or at any time thereafter and,
from and after the Merger Consummation Date, the STI Subsidiary Guaranty, in
connection with the transactions contemplated by this Agreement, in each case,
as amended, modified or supplemented from time to time.
"Loan Party" means any of the Borrower, its Subsidiaries and
Affiliates which is a party to any of the Loan Documents.
"Loss" means any loss, damage, destruction, theft, or seizure
of, or any other casualty with respect to, or any condemnation of, any property
or asset of any Person in an amount in excess of $100,000 individually or
$250,000 in the aggregate for any Fiscal Year; and the "amount" of any Loss
means (i) if such asset or property is repaired or replaced, the greater of (A)
the cost to repair or replace the property or asset that was the subject of
such Loss and (B) the amount of insurance proceeds or condemnation awards
payable as a result of such Loss, and (ii) if such asset or property is not
repaired or replaced, the amount of insurance proceeds or condemnation awards
payable as a result of such loss.
"Material Adverse Change" means a material adverse change in
(a) the condition (financial or otherwise), operations, performance, business,
properties or prospects of the Borrower and its Subsidiaries taken as a whole;
or (b) the rights and remedies of the Lenders or the Agent under the Loan
Documents; or (c) the ability of the Borrower to repay the Obligations or of
the Borrower or any Subsidiary to perform their respective obligations under
the Loan Documents; or (d) the legality, validity or enforceability of any Loan
Document; or (e) the Liens granted the Agent pursuant to the Security Documents.
"Maturity" means relative to any Loan or portion thereof, the
earlier of such Loan's Stated Maturity Date or such other date when such Loan
or portion thereof shall be or become due and payable in accordance with the
terms of this Agreement, whether by required repayment, prepayment, declaration
or otherwise.
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"Merger" means the merger of Brunswick with and into STI with
STI being the surviving corporation.
"Merger Consummation Date" means the date on which the Merger
has been consummated and all conditions set forth in Section 4.2 and Section
4.3 have been satisfied or waived in writing by the Lenders and the Agent.
"Merger Pro Forma Balance Sheet" means the pro forma balance
sheet of the Borrower as of the Merger Consummation Date, prepared by the
Borrower based upon the financial statements described in clause (a) of Section
5.4, and after giving effect to the transactions contemplated by this Agreement
to occur on the Merger Consummation Date, including the consummation of the
Merger, the conversion of $10,000,000 of the Bridge Loan into the Term Loan and
the making of the Revolving Loans to be made on the Merger Consummation Date.
"Monthly Payment Date" means the last day of each calendar
month or, if such day is not a Business Day, the immediately preceding Business
Day.
"Mortgage" means any mortgage, deed of trust, deed to secure
debt, leasehold mortgage, leasehold deed of trust or leasehold deed to secure
debt covering real property, as such instruments are originally executed or
supplemented, amended, renewed, extended or otherwise modified from time to
time.
"Multiemployer Pension Plan" means a Multiemployer Plan which
is subject to Subtitle E of Title IV of ERISA.
"Multiemployer Plan" means a Plan which is a "multiemployer
plan" within the meaning of Section 3(37) of ERISA.
"Net Disposition Proceeds" means, with respect to any
disposition of the assets of the Borrower or any Subsidiary (including the
disposition by Brunswick of any Stock of STI other than as a result of the
Merger), the excess of: (a) the gross cash proceeds received by the Borrower or
any Subsidiary from such disposition (including any cash proceeds subsequently
received in respect of notes and other non-cash proceeds received by the
Borrower or any of its Subsidiaries from such disposition), minus (b) the sum
of (i) all reasonable out-of-pocket fees and expenses incurred in connection
therewith, plus (ii) all taxes paid or payable in connection with such sale.
"Net Income" means, as to any Person, for any period, the net
income (or loss) of such Person for such period, determined in accordance with
GAAP, but excluding extraordinary gains or losses for such period.
"Net Securities Proceeds" means, with respect to the issuance
or sale by the Borrower or any Subsidiary of any equity or debt securities (not
including upon the exercise of existing stock options or employee stock
options, the issuance of equity securities pursuant to any dividend
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reinvestment plan or the incurrence of Indebtedness to finance Consolidated
Capital Expenditures to the extent permitted under Section 6.2.2), the excess
of: (a) the gross cash proceeds received by the Borrower or any Subsidiary from
such issuance and sale; minus (b) all reasonable out-of-pocket fees and
expenses incurred in connection with such issuance and sale; minus (c) the
amount of such proceeds required to be applied to the prepayment of the Estate
Subordinated Note pursuant to Section 4 of the Estate Subordinated Note as in
effect on the Closing Date.
"Note" means, as the context may require, any Bridge Note,
Term Note or Revolving Note.
"Notes" means, collectively, the Bridge Notes, the Term Notes
and the Revolving Notes.
"Obligations" means all payment and performance obligations of
the Loan Parties (monetary or otherwise) arising under or in connection with
this Agreement, the Notes and the other Loan Documents.
"Organic Document" means, relative to any Person, its articles
or certificate of incorporation or organization or certificate of limited
partnership, its bylaws, partnership or operating agreement or other
organizational documents, and all stockholders agreements, voting trusts and
similar arrangements applicable to any of its Stock or partnership interests or
other ownership interests.
"Participant" means the banks or other entities that purchase
participating interests in any Loan, Note, Revolving Loan Commitment or other
interest hereunder, as provided in clause (a) of Section 9.11.
"PBGC" means the Pension Benefit Guaranty Corporation and any
entity succeeding to any or all of its functions under ERISA.
"Pension Plan" means any Plan which is subject to the
provisions of Title IV of ERISA, or to the provisions of Section 302 of ERISA
or Section 412 of the IRC.
"Percentage" means, as the context requires, either (a) the
Bridge Percentage, (b) the Revolving Percentage, (c) the Term Percentage or (d)
all of the above.
"Person" means any natural person, corporation, partnership,
limited liability company, firm, association, government, governmental agency
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Plan" shall mean, at a particular time, any employee benefit
plan (within the meaning of Section 3(3) of ERISA), which is covered by ERISA
and in respect of which the Borrower, a
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Subsidiary or a Commonly Controlled Entity is (or, if such plan were terminated
at such time, would under Section 4069 of ERISA be deemed to be) an "employer"
as defined in Section 3(5) of ERISA.
"Plan Reorganization" means with respect to any Multiemployer
Pension Plan, the condition that such plan is in reorganization within the
meaning of such term as used in Section 4241 of ERISA.
"Plan Reportable Event" means (i) a reportable event described
in Section 4043 of ERISA and regulations thereunder (other than any reportable
event described in Section 4043(b)(2) or (7)), (ii) a withdrawal by a
"substantial employer" (within the meaning of Section 4001(a)(2) of ERISA) from
a Single Employer 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 participants under a Single
Employer Plan to be separated from employment, as referred to in Section
4062(e) of ERISA.
"Pledge Agreement" means any of the Brunswick Pledge Agreement
or the STI Pledge Agreement.
"Post-Default Rate" means (a) in the case of each Loan, the
sum of the rate per annum otherwise applicable to such Loan from time to time
plus two percent (2%) per annum and (b) in the case of all other Obligations,
the sum of the highest rate per annum then applicable to any Loan (other than
by application of the Post-Default Rate) plus two percent (2%) per annum.
"Pro Forma Balance Sheets" means the Closing Date Pro Forma
Balance Sheet, the Trial Merger Pro Forma Balance Sheet, and the Merger Pro
Forma Balance Sheet.
"Projections" means the projected balance sheets and
statements of operations and changes in cash flows of the Borrower (after
giving effect to the Merger) for the Fiscal Years 1997 - 1999 inclusive,
prepared by the Borrower on an annual basis for the 1997 - 1999 Fiscal Years,
together with supporting details and a statement of underlying assumptions,
which have been delivered to the Lenders prior to the Closing Date.
"Purchase Money Indebtedness" means Indebtedness incurred to
finance part or all of (but not more than) the purchase price of equipment in
which neither the Borrower nor any of its Subsidiaries had an interest at any
time prior to such purchase.
"Purchase Price" means "Purchase Price" as that term is
defined in the Acquisition Agreement.
"Purchasing Lender" means any Person purchasing all or any
part of the rights and obligations under this Agreement and the Notes of any
Lender pursuant to a Transfer Supplement in accordance with Section 9.11.
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"Quarterly Payment Date" means the last day of each March,
June, September and December or, if such day is not a Business Day, the
immediately preceding Business Day.
"Reference Lenders" means, collectively, The Chase Manhattan
Bank, N.A., Citibank, N.A. and ▇▇▇▇▇▇ Guaranty Trust Company of New York.
"Register" means the register for the recordation of the names
and addresses of the Lenders and the Revolving Loan Commitment of, and the
principal amounts of the Loans owing to, each Lender from time to time, as
provided in clause (c) of Section 9.11.
"Regulatory Approval" means each and every approval, consent,
filing and registration by or with any federal, state or other regulatory
authority (domestic or foreign) necessary to authorize or permit the execution,
delivery or performance of this Agreement, the Notes or any other Loan
Document, for the granting of any security contemplated hereby or thereby, for
the validity or enforceability hereof or thereof, or for the consummation of
the transaction contemplated by the Loan Documents, including, without
limitation, the Acquisition and the Merger.
"Regulatory Change" means, as to any or all of the Lenders or
the Agent, the adoption of or any change in (including, without limitation, any
change in the interpretation of) any:
(a) United States federal or state law or foreign law
applicable to the Agent or such Lender; or
(b) regulation, interpretation, directive, guideline or
request (whether or not having the force of law) applicable to the Agent or
such Lender of any court or Governmental Authority charged with the
interpretation or administration of any law referred to in clause (a) or of any
central bank or fiscal, monetary or other authority having jurisdiction over
the Agent or such Lender.
"Required Lenders" means, as the context may require at any
time, Lenders having, in the aggregate, 66-2/3% or more of (a) the Bridge Loans
at any time prior to the Merger Consummation Date, and (b) the Revolving Loan
Commitment, the Revolving Loans and the Term Loan on and after the Merger
Consummation Date.
"Requirements of Law" means, as to any Person, the Organic
Documents of such Person, and all federal, state and local laws, rules,
regulations, orders, decrees or other determinations of an arbitrator, court or
other Governmental Authority, including, without limitation, all disclosure and
other requirements of ERISA, the requirements of Environmental Laws and
Environmental Permits, the requirements of OSHA, in each case applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"Reserve Requirement" means, relative to any Interest Period
for any Eurodollar Loans, from time to time during such Interest Period, the
reserve percentage (expressed as a decimal)
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equal to the maximum aggregate reserve requirements (including all basic,
emergency, supplemental, marginal and other reserves and taking into account
any transitional adjustments or other scheduled changes in reserve
requirements) specified under regulations issued from time to time by the
F.R.S. Board and then applicable to assets or liabilities consisting of or
including "Eurodollar Liabilities", as currently defined under Regulation D of
the F.R.S. Board, having a term approximately equal or comparable to such
Interest Period.
"Responsible Officer" means the chief executive officer, the
chief operating officer and the chief financial officer of the Borrower.
"Revolving Loan" means, relative to any Lender, any loan made
by such Lender to the Borrower pursuant to Section 2.2.2.
"Revolving Loan Availability" means, on any date, the excess
of (a) the Revolving Loan Commitment Amount minus (b) the then aggregate
principal amount of all outstanding Revolving Loans.
"Revolving Loan Commitment" means the collective commitments
of the Lenders to make Revolving Loans pursuant to Section 2.2.2 if the
conditions set forth in Section 4.2 and Section 4.3 are met.
"Revolving Loan Commitment Amount" means $5,000,000.
"Revolving Loan Commitment Termination Date" means the
earliest of:
(a) the Stated Maturity Date for Revolving Loans;
(b) immediately and without further action upon the
occurrence of any Event of Default described in Section 7.1.4;
(c) immediately when any other Event of Default shall
have occurred and be continuing and either:
(i) the Revolving Loans shall be declared to be
due and payable pursuant to Section 7.3; or
(ii) in the absence of such declaration, the
Agent, acting at the direction of the Required Lenders, shall give
notice to the Borrower that the Revolving Loan Commitment has been
terminated; and
(d) immediately upon the occurrence of a Change in
Control.
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"Revolving Note" means a promissory note of the Borrower dated
the date hereof and substantially in the form of Exhibit C-2, and shall also
refer to all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Revolving Percentage" of any Lender means, at any time, in
respect of the Revolving Loan Commitment and the Revolving Loans, the
percentage set forth opposite such Lender's signature hereto under the caption
"Percentage," as the same may be adjusted pursuant to Section 9.11.
"Secretary" means, with respect to any Person, the secretary,
assistant secretary, clerk, assistant clerk or comparable officer of such
Person.
"Security Documents" means, collectively, the Brunswick Pledge
Agreement, the Brunswick Security Agreement, the Brunswick Patent Agreement,
the Brunswick Trademark Assignment, the Technology Patent Assignment, the
Technology Trademark Assignment, the Cash Reserve Account Agreement, the
assignment of the Interest Rate Contracts described in Section 6.1.13, the
collateral assignment of the Estate Registration Rights Agreement described in
clause (g) of Section 4.1.8, the collateral assignment of rights under
Acquisition Agreement and all other documents described in clause (f) of
Section 4.1.8, each other Instrument at any time delivered in connection with
this Agreement to secure the Obligations and, from and after the Merger
Consummation Date, the Assumption Agreement, the STI Security Agreement, STI
Patent Assignment, STI Trademark Assignment, the STI Pledge Agreement, the
Mortgages described in clause (h) of Section 4.2.9, the Share Charge and the
assignment of "key-man" life insurance described in clause (i) of Section 4.2.9.
"Senior Debt Leverage Ratio" means, for any period, the ratio
of (a) the aggregate outstanding principal amount of the Loans as of the last
day of such period to (b) EBITDA for such period.
"Senior Debt Service" means, for any period, the sum of (a)
Interest Expense with respect to the Loans during such period, plus (b)
principal repayments, if any, of the Loans during such period required to be
made pursuant to clause (c) of Section 3.3.1.
"Senior Debt Service Ratio" means, for any period, the ratio
of (a) EBITDA for such period to (b) Senior Debt Service for such period.
"Share Charge" means the Share Charge, dated the Merger
Consummation Date, made by STI in favor of the Agent, for its benefit and the
ratable benefit of the Lenders, in respect of all of the outstanding shares of
STI International Limited held by STI, in form and substance satisfactory to
the Agent.
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, other than a Multiemployer Plan.
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"Solvent" means, with respect to any Person on a particular
date, that on such date (i) the fair value of the assets of such Person (both
at fair valuation and at present fair saleable value) is, on the date of
determination, greater than the total amount of liabilities of such Person
(including all liabilities and obligations of such Person, fixed or contingent,
direct or indirect, disputed or undisputed, and whether or not required to be
reflected on a balance sheet prepared in accordance with GAAP), (ii) such
Person is able to pay all liabilities of such Person as they mature, and (iii)
such Person does not have unreasonably small capital with which to carry on its
business. The amount attributed to contingent liabilities shall be discounted
to reflect the likelihood that such liabilities shall become payable.
"Stated Maturity Date" means, (a) with respect to the Bridge
Loan, October 15, 1996, unless the Borrower requests a ninety-day extension in
writing and the Extension Criteria have been met, in which case the Stated
Maturity Date shall be January 15, 1997, and (b) with respect to the Term Loan
and the Revolving Loans, the fifth anniversary of the Merger Consummation Date.
"STI" means Survival Technology, Inc., a Delaware corporation.
"STI Patent Assignment" means, collectively, each Collateral
Assignment and Security Agreement (Patents), dated as of the Merger
Consummation Date, in substantially the form of the Brunswick Patent
Assignment, made by STI or one of its Subsidiaries in favor of the Agent, for
its benefit and the ratable benefit of the Lenders, as originally in effect on
the Merger Consummation Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect.
"STI Pledge Agreement" means the Stock and Notes Pledge
Agreement, dated as of the Merger Consummation Date, in substantially the form
of the Brunswick Pledge Agreement, made by STI in favor of the Agent, for
itself and the ratable benefit of the Lenders, as originally in effect on the
Merger Consummation Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect,
pursuant to which STI shall pledge to the Agent all of the issued and
outstanding stock of its Subsidiaries located in the United States and all
promissory notes and other instruments and securities held by STI, as security
for the Obligations.
"STI Security Agreement" means the Security Agreement, dated
as of the Merger Consummation Date, in substantially the form of the Brunswick
Security Agreement, made by STI and each of its Subsidiaries located in the
United States (other than the Inactive Subsidiaries) in favor of the Agent, for
its benefit and the ratable benefit of the Lenders, as originally in effect on
the Merger Consummation Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect.
"STI Subsidiary Guaranty" means the Subsidiary Guaranty, dated
as of the Merger Consummation Date, in substantially the form of the Brunswick
Subsidiary Guaranty, made by each Subsidiary (other than the Inactive
Subsidiaries) of STI located in the United States in favor of the
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Agent and the Lenders, as originally in effect on the Merger Consummation Date
and as thereafter from time to time amended, supplemented, amended and restated
or otherwise modified and in effect.
"STI Shares" means the 1,888,126 shares of Common Stock, $.10
par value, of STI purchased by Brunswick pursuant to the Acquisition Agreement.
"STI Trademark Assignment" means, collectively, each
Collateral Assignment and Security Agreement (Trademarks), dated as of the
Merger Consummation Date, in substantially the form of the Brunswick Trademark
Assignment, made by STI or one of its Subsidiaries in favor of the Agent, for
its benefit and the ratable benefit of the Lenders, as originally in effect on
the Merger Consummation Date and as thereafter from time to time amended,
supplemented, amended and restated or otherwise modified and in effect.
"Stock" means all shares of capital stock of or in a
corporation, whether voting or non-voting, and including, without limitation,
common stock and preferred stock.
"Subsidiary" of any corporation means any other corporation
greater than 50% of the outstanding shares of Stock of which having ordinary
voting power for the election of directors is owned directly or indirectly by
such corporation, and, except as otherwise indicated herein, references to
Subsidiaries shall refer to Subsidiaries of the Borrower. Unless otherwise
indicated, references to Subsidiaries of Brunswick on the Closing Date and as
of any time thereafter, but prior to the Merger Consummation Date, shall
include STI and its Subsidiaries.
"Subsidiary Note" means a promissory note made by a Subsidiary
payable to the Borrower and meeting the requirements of Section 6.2.7(e).
"Taxes" means all taxes, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto, excluding, in the
case of each Lender and the Agent, taxes imposed on or measured by its net
income and franchise taxes imposed on it.
"Technology" means Brunswick Biomedical Technologies, Inc., a
Massachusetts corporation and a Subsidiary of the Borrower.
"Technology Patent Assignment" means the Collateral Assignment
and Security Agreement (Patents), dated as of the Closing Date, made by
Technology in favor of the Agent, for its benefit and the ratable benefit of
the Lenders, as originally in effect on the Closing Date and as thereafter from
time to time amended, supplemented, amended and restated or otherwise modified
and in effect.
"Technology Trademark Assignment" means the Collateral
Assignment and Security Agreement (Trademarks), dated as of the Closing Date,
made by Technology in favor of the Agent, for its benefit and the ratable
benefit of the Lenders, as originally in effect on the Closing Date and
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as thereafter from time to time amended, supplemented, amended and restated or
otherwise modified and in effect.
"Term Loan" means, collectively, the loans, in an aggregate
principal amount equal to $10,000,000, to be converted from $10,000,000 of the
outstanding principal balance of the Bridge Loan on the Merger Consummation
Date pursuant to Section 2.2.1.
"Term Loan Commitment" means the collective commitments of the
Lenders to extend the Term Loan pursuant to Section 2.2.1 by converting
$10,000,000 of the outstanding principal balance of the Bridge Loan into the
Term Loan on the Merger Consummation Date if the conditions set forth in
Section 4.2 and Section 4.3 are met.
"Term Note" means a promissory note of the Borrower dated the
date hereof and substantially in the form of Exhibit C-3, and shall also refer
to all other promissory notes accepted from time to time in substitution
therefor or renewal thereof.
"Term Percentage" of any Lender means, at any time, in respect
of the Term Loan, the percentage set forth opposite such Lender's signature
hereto under the caption "Percentage," as the same may be adjusted pursuant to
Section 9.11.
"Total Debt Leverage Ratio" means, for any period, the ratio
of (a) the aggregate outstanding principal amount of all Indebtedness of the
Borrower and its Subsidiaries as of the last day of such period to (b) EBITDA
for such period.
"Transfer Supplement" means a Transfer Supplement,
substantially in the form of Exhibit G, executed pursuant to Section 9.11.
"Trial Merger Pro Forma Balance Sheet" means the pro forma
balance sheet of the Borrower, assuming the Merger will occur on August 1,
1996, prepared by Brunswick based on the financial statements described in
clauses a(i) - (iv) of Section 5.4 and the Projections and after giving effect
to the transactions contemplated to occur on the Closing Date.
"type" means, relative to any Borrowing or Loan, the portion
thereof being maintained as a Base Rate Loan or a Eurodollar Rate Loan.
"UCC" means the Uniform Commercial Code of any applicable
jurisdiction, as in effect from time to time.
"United States" or "U.S." means the United States of America,
its 50 States and the District of Columbia.
"written" or "in writing" means any form of written
communication or a communication by means of telephonic facsimile device.
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SECTION 1.2. Use of Defined Terms. Unless otherwise
defined or the context otherwise requires, terms for which meanings are
provided in this Agreement shall have such meanings when used in the Disclosure
Schedule and each Note, Borrowing Request, Compliance Certificate,
Continuation/Conversion Notice, notice and other communication delivered from
time to time in connection with this Agreement or any other Loan Document.
SECTION 1.3. Cross-References. Unless otherwise
specified, references in this Agreement and in each other Loan Document to any
Article or Section are references to such Article or Section of this Agreement
or such other Loan Document, as the case may be, and unless otherwise
specified, references in any Article, Section, or definition to any clause are
references to such clause of such Section, Article or definition.
SECTION 1.4. Accounting and Financial Determinations.
Unless otherwise specified, all accounting terms used herein or in any other
Loan Document shall be interpreted, all accounting determinations and
computations hereunder or thereunder shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared
in accordance with GAAP.
ARTICLE 2.
COMMITMENTS
SECTION 2.1. Bridge Loan. Subject to the terms and
conditions of this Agreement, each Lender severally and for itself alone agrees
to make a single Loan to the Borrower on the Closing Date equal to its Bridge
Percentage of $11,000,000.
SECTION 2.2. Term Loan and Revolving Loan Commitment.
Subject to the terms and conditions of this Agreement, each Lender severally
and for itself alone agrees to make its Term Percentage of the Term Loan
described in Section 2.2.1 and to provide its Revolving Percentage of the
Revolving Loan Commitment described in Section 2.2.2.
SECTION 2.2.1. Term Loan. On the Merger Consummation Date,
each Lender will convert a portion of the Bridge Loan equal to its Term
Percentage of $10,000,000, which portion shall thereafter constitute such
Lender's portion of the Term Loan.
SECTION 2.2.2. Revolving Loan Commitment. Each Lender will,
from time to time on any Business Day occurring during the period commencing on
the Merger Consummation Date and continuing to (but not including) the
Revolving Loan Commitment Termination Date, make Revolving Loans to the
Borrower equal to its Revolving Percentage of the aggregate amount of any
Borrowing of Revolving Loans requested by the Borrower to be made on such
Business Day in accordance with Section 3.1.
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SECTION 2.2.3. Limitations on Revolving Credit Commitment.
No Lender shall be required to make any Revolving Loan, if after giving effect
thereto:
(a) the then aggregate outstanding principal amount of
all Revolving Loans would exceed the Revolving Loan Commitment Amount less the
amount of reserves established by the Agent pursuant to Section 2.3; or
(b) the then aggregate outstanding principal amount of
such Lender's Revolving Loans would exceed its Revolving Percentage of an
amount equal to the Revolving Loan Commitment Amount less the amount of
reserves established by the Agent pursuant to Section 2.3.
Subject to the terms hereof, the Borrower may from time to time borrow, prepay
and reborrow Revolving Loans, in all cases pursuant to the Revolving Loan
Commitment.
SECTION 2.3. Establishment of Reserves. The Agent shall
have the right to establish, in such amounts, and with respect to such matters,
as the Agent, based on the Agent's customary credit considerations, shall deem
necessary or appropriate, reserves with respect to (i) Charges and Liens; (ii)
Environmental Liabilities and Costs, (iii) sums as to which the Agent and the
Lenders are permitted to make Revolving Loans on the Borrower's behalf under
Section 3.3.3 of this Agreement; and (iv) by thirty (30) days prior written
notice by the Agent to the Borrower, such other matters, events, conditions or
contingencies as to which the Agent, based on the Agent's customary credit
considerations, reasonably determines reserves should be established from time
to time hereunder.
SECTION 2.4. Commitment Fee. The Borrower agrees to pay
to the Agent, for the account of each Lender, a nonrefundable fee for the
period from the Closing Date to and including the Revolving Loan Commitment
Termination Date, equal to such Lender's Revolving Percentage of one-half of
one percent (0.50%) per annum of the difference between (A) the Revolving Loan
Commitment Amount and (B) the average daily aggregate outstanding principal
amount of all Revolving Loans. The fee described in this Section 2.4 shall be
calculated on a daily basis and shall be payable by the Borrower in arrears on
each Monthly Payment Date and on the Revolving Loan Commitment Termination Date.
SECTION 2.5. Increased Costs; Capital Adequacy. (a) The
Borrower shall pay to each Lender from time to time on demand such amounts as
such Lender may determine to be reasonably necessary to compensate it or its
holding company for any costs which such Lender determines are attributable to
its making or maintaining Loans, or maintaining Commitments hereunder or its
obligation to make any such Loans hereunder, or any reduction in any amount
receivable by such Lender hereunder in respect of any such Loans, Commitments
or obligation, in each case resulting from any Regulatory Change which: (i)
changes the basis of taxation of any amounts payable to such Lender under this
Agreement in respect of any of such Loans or Commitments (other than taxes
imposed on or measured by the overall net income of such Lender or of its
Applicable Lending Office); or (ii) imposes or modifies any reserve, special
deposit, deposit
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insurance or assessment, minimum capital, capital ratio or similar requirements
relating to any extensions of credit or other assets of, or any deposits with
or other liabilities of, such Lender or any holding company of such bank
(including, without limitation, a request or requirement which affects the
manner in which any Lender or the holding company of any thereof allocates
capital resources to commitments, including the Commitments and obligations of
such Lender hereunder). Each Lender will notify the Borrower of any event
occurring after the date of this Agreement which will entitle such Lender to
compensation pursuant to this clause (a) as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation.
(b) Without limiting the effect of the foregoing
provisions of this Section 2.5 (but without duplication), the Borrower shall
pay to each Lender from time to time upon demand by such Lender such amounts as
the Lender may determine to be reasonably necessary to compensate such Lender
for any costs which it determines are attributable to the maintenance by it or
its holding company, pursuant to any law or regulation of any jurisdiction or
any interpretation, directive or request (whether or not having the force of
law) of any court or governmental or monetary authority, whether in effect on
the date of this Agreement or thereafter, of capital in respect of its Loans
its obligation to make the Loans hereunder (such compensation to include,
without limitation, an amount equal to any reduction in return on assets or
equity of such Lender or its holding company to a level below that which it
could have achieved but for such law, regulation, interpretation, directive or
request). The Lender will notify the Borrower with a copy to the Agent) if it
is entitled to compensation pursuant to this clause (b) as promptly as
practicable after it determines to request such compensation.
(c) Each notice delivered by any Lender pursuant to this
Section 2.5 shall contain a statement of such Lender as to any such additional
amount or amounts (including calculations thereof in reasonable detail) which
shall, in the absence of manifest error, be conclusive of the matters stated
therein and be binding upon the Borrower. In determining such amount, any
Lender may use any method of averaging and attribution that it in good faith
shall deem applicable.
(d) Upon the receipt by the Borrower from any Lender of a
claim for compensation pursuant to this Section 2.5, the Borrower may obtain a
replacement bank, financial institution or other lender satisfactory to the
Borrower and the Agent to acquire and assume all or part of such affected
Lender's Loans and Commitments and such affected Lender shall transfer all or
such part of its Loans and Commitments upon receipt of the purchase price
therefor (which shall equal the outstanding principal amount of its Loans plus
all accrued and unpaid interest and fees to the date of purchase, plus all
other amounts owing by the Borrower) to such affected Lender under this
Agreement. Any such replacement bank, financial institution or other lender
shall be subject to the prior written consent of the Agent, which consent shall
not be unreasonably withheld.
ARTICLE 3.
LOANS AND NOTES
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SECTION 3.1. Borrowing Procedure. By delivery of a
Borrowing Request to the Agent on or before 11:00 a.m., New York City time, on
any day, the Borrower may request that the Bridge Loan be made on such day. By
delivering a Borrowing Request to the Agent at the Agent's Atlanta Office on or
before 11:00 a.m., New York City time, on a Business Day, the Borrower may (a)
request, on not less than one (1) Business Day's advance notice in the case of
Base Rate Loans and not less than three (3) Business Days' advance notice in
the case of Eurodollar Loans, that the Term Loan be made on the Merger
Consummation Date; and (b) from time to time request, on not less than one (1)
nor more than three (3) Business Days' notice, in the case of Base Rate Loans,
and not less than three (3) nor more than five (5) Business Days' notice in the
case of Eurodollar Loans, that a Borrowing of Revolving Loans be made on the
Business Day specified in such Borrowing Request. Borrowings of Base Rate
Loans shall be in a minimum aggregate amount equal to $250,000 and in integral
multiples of $50,000 or, if less, the amount of the Revolving Loan Availability
immediately prior to such Borrowing. Borrowings of Eurodollar Loans shall be
in a minimum aggregate amount of $500,000 and in integral multiples of
$100,000. The Term Loan shall be made on the Merger Consummation Date, and
each Revolving Loan shall be made on the Business Day specified in the
Borrowing Request therefor, which Business Day shall be on or after the Merger
Consummation Date. On such Business Day, each Lender shall, on or before 2:00
p.m., New York City time, deposit same day funds with the Agent in an amount
equal to such Lender's Percentage of the requested Borrowing, such deposit to
be made to such account as the Agent shall specify from time to time by notice
to the Lenders. The proceeds of all Borrowings shall be made available to the
Borrower by wire transfer of such proceeds to such transferees, or to such
accounts of the Borrower, as the Borrower shall have specified in the Borrowing
Request therefor; provided, however, that in each case the Agent shall be
required to make available to the Borrower the proceeds of any Borrowing only
to the extent received by it in same day funds from the Lenders. No Lender's
obligation to make any Loan shall be affected by any other Lender's failure to
make any Loan.
SECTION 3.2. Notes. All Loans made by each Lender shall
be evidenced:
(a) in the case of such Lender's portion of the Bridge
Loan, by a Bridge Note payable to the order of such Lender in a principal
amount equal to such Lender's Bridge Percentage of the Bridge Loan;
(b) in the case of such Lender's portion of the Term
Loan, by a Term Note payable to the order of such Lender in a principal amount
equal to such Lender's Term Percentage of the Term Loan; and
(c) in the case of such Lender's Revolving Loans, by a
Revolving Note payable to the order of such Lender in a principal amount equal
to such Lender's Revolving Percentage of the Revolving Loan Commitment Amount.
The Borrower hereby irrevocably authorizes each Lender to make (or cause to be
made) appropriate notations on a grid schedule attached to such Lender's
Revolving Note (or on a continuation of any
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such grid attached to any Revolving Note and made a part thereof), which
notations shall evidence, inter alia, the date and outstanding principal amount
of the Revolving Loans evidenced thereby. The notations on any such grid (and
on any such continuation) indicating the outstanding principal amount of such
Lender's Revolving Loans shall be presumptive evidence of the principal amount
thereof owing and unpaid, but the failure to record any such amount on any such
grid (or on any such continuation) shall not limit or otherwise affect the
obligations of the Borrower hereunder or under such Note to make payments of
principal of or interest on such Loans when due.
SECTION 3.3. Principal Payments. Repayments and
prepayments of principal of the Loans shall be made in accordance with this
Section 3.3.
SECTION 3.3.1. Repayments and Prepayments. The Borrower
will make payment in full of all unpaid principal of each Loan at its Stated
Maturity Date (or such earlier date as such Loan may become or be declared due
and payable pursuant to Article 7). Prior thereto, the Borrower:
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the outstanding principal amount
of any Loans; provided, however, that (i) as to partial prepayments of the
Bridge Loan or the Term Loan, all such voluntary prepayments shall require at
least three (3) Business Days prior notice to the Agent, (ii) as to the Bridge
Loan, the Term Loan and the Revolving Loans, all such voluntary prepayments
shall be in a minimum amount of $50,000 (subject to the Borrower's right to
prepay in full the entire unpaid principal amount of the Bridge Loan, the Term
Loan or the Revolving Loans, as the case may be), and (iii) as to the voluntary
prepayment in full of the Bridge Loan and the Term Loan and the termination of
the Revolving Loan Commitment, such prepayment shall require at least five (5)
Business Days prior written notice to the Agent;
(b) shall, on any Business Day on which the aggregate
outstanding principal amount of all Revolving Loans exceeds the Revolving Loan
Commitment Amount, make a mandatory prepayment of the outstanding principal
amount of Revolving Loans in an amount equal to such excess amount;
(c) shall, on each Quarterly Payment Date, commencing on
the third (3rd) Quarterly Payment Date occurring after the Merger Consummation
Date, make a scheduled payment of a portion of the outstanding principal amount
of the Term Loan in an amount equal to the lesser of (i) the outstanding
principal balance of the Term Loan, and (ii) the amount shown below opposite
each such Quarterly Payment Date:
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Quarterly
Quarterly Payment Dates Occuring Principal
During the Period from: Payment
-------------------------------- ---------
Merger Consummation Date through but
excluding the first anniversary of the
Merger Consummation Date $250,000
First anniversary of the Merger Consummation
Date through but excluding the second
anniversary of the Merger Consummation Date $500,000
Second anniversary of the Merger Consummation
Date through but excluding the third
anniversary of the Merger Consummation Date $500,000
Third anniversary of the Merger Consummation
Date through but excluding the fourth
anniversary of the Merger Consummation Date $625,000
Fourth anniversary of the Merger Consummation
Date through and including the Stated Maturity
Date for the Term Loan $750,000
(d) shall, concurrently with the receipt by the Borrower
or any Subsidiary of any Net Disposition Proceeds (other than from dispositions
of assets permitted under clause (a) of Section 6.2.11) which in the aggregate
equal or exceed $250,000 in any Fiscal Year, if received prior to the Merger
Consummation Date, make a mandatory prepayment of the Bridge Loan, and if
received after the Merger Consummation Date, make a mandatory prepayment of the
Term Loan, in each case in an aggregate amount equal to such Net Disposition
Proceeds; provided that this clause (d) of Section 3.3.1 shall not in any event
be deemed a consent to any disposition by the Borrower or any Subsidiary which
is otherwise prohibited by the terms of this Agreement or of any of the other
Loan Documents;
(e) shall, concurrently with the receipt by the Borrower
or any Subsidiary of any Net Securities Proceeds, if received prior to the
Merger Consummation Date make a mandatory prepayment of the Bridge Loan, and if
received after the Merger Consummation Date make a mandatory prepayment of the
Term Loan, in each case in an aggregate amount equal to such Net Securities
Proceeds; provided that this clause (e) of Section 3.3.1 shall not in any event
be deemed a consent to any issuance of Stock or the incurrence of Indebtedness
by the Borrower or any Subsidiary which is otherwise prohibited by the terms of
this Agreement or of any of the other Loan Documents;
(f) shall, concurrently with the delivery of the
financial information required under clause (a)(i) of Section 6.1.1 (but in no
event later than the date such information is required to be delivered), make a
mandatory prepayment of a portion of the outstanding principal amount of the
Term Loan in an amount equal to 75% of Excess Cash Flow for the Fiscal Year
with respect to which such financial information was delivered or is required
to be delivered;
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(g) shall, within 180 days after receipt by the Borrower
or any Subsidiary or the Agent of any condemnation awards with respect to any
Loss, make a mandatory prepayment of the Loans in an amount by which such
condemnation awards exceed the actual cost incurred to replace or restore the
property or asset which was the subject of such Loss as nearly as practicable
to conditions prior to such Loss;
(h) shall, within 180 days after receipt by the Borrower
or any Subsidiary or the Agent of any insurance proceeds with respect to any
Loss resulting from a casualty, make a mandatory prepayment of the Loans in an
amount by which such insurance proceeds exceed the actual cost incurred by the
Borrower or such Subsidiary to repair or replace the property or asset which
was the subject of the Loss or deemed Loss giving rise to such insurance
proceeds;
(i) shall, within 180 days after receipt by the Borrower
or any Subsidiary or the Agent of any insurance proceeds with respect to any
Loss resulting from a liability, make a mandatory prepayment of the Loans in an
amount by which such insurance proceeds exceed the amount of the liability to
be satisfied with such proceeds (to the extent such liability is so satisfied);
(j) shall, concurrently with the receipt by the Borrower
of any proceeds of the life insurance policies described in clause (c) of
Section 6.1.5, make a mandatory prepayment of the Loans in an amount equal to
the amount of such insurance proceeds;
(k) shall, concurrently with the receipt by the Borrower
of any amount payable by the Estate to the Borrower pursuant to or as a result
of the breach by the Estate of the Acquisition Agreement, make a mandatory
prepayment in an aggregate amount equal to the amount so received;
(l) shall, on the earlier of the Merger Consummation Date
or the Stated Maturity Date for the Bridge Loan, repay the Bridge Loan in an
amount equal to the cash balance on deposit in the Cash Reserve Account on such
date (and the Borrower hereby irrevocably authorizes and directs the Agent to
apply such cash balance for such purpose); and
(m) shall prepay the entire outstanding principal amount
of the Loans together with accrued and unpaid interest and all of the
outstanding Obligations hereunder upon the occurrence of a Change in Control.
SECTION 3.3.2. Application. Each prepayment or repayment of
principal required under clauses (d) through (k) of Section 3.3.1 prior to the
Merger Consummation Date shall be applied to the Bridge Loan and, subsequent to
the Merger Consummation Date, shall be applied in inverse order to the
scheduled installments due on the Term Loan under clause (c) of Section 3.3.1.
SECTION 3.3.3. Revolving Loans on Borrower's Behalf. The
Lenders are authorized to, and at their option may, make Revolving Loans on
behalf of the Borrower for payment of all fees, expenses, charges, costs,
principal and interest owed by the Borrower to the Lenders or the Agent under
this Agreement and the other Loan Documents. Such Revolving Loans shall be
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made when and as the Borrower fails promptly to pay same, and all such
Revolving Loans shall constitute Revolving Loans made to the Borrower and shall
be secured by all of the Collateral.
SECTION 3.4. Interest. Interest on the outstanding
principal amount of the Loans and other outstanding Obligations shall accrue
and be payable in accordance with this Section 3.4.
SECTION 3.4.1. Bridge Loan Rate. Subject to Section 3.4.5,
the Bridge Loan shall accrue interest at a rate per annum equal to the ING
Alternate Base Rate (as in effect from time to time) plus the Bridge Loan
Applicable Margin.
SECTION 3.4.2. Term Loan Rate. Subject to Section 3.4.5,
the Term Loan or any portion thereof shall accrue interest at the following
rates per annum, at the election of the Borrower, pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice:
(a) during such periods as the Term Loan or portion
thereof is a Base Rate Loan, the ING Alternate Base Rate (as in effect
from time to time) plus 1.50%, and
(b) during such periods as the Term Loan or portion
thereof is a Eurodollar Loan, for each Interest Period relating
thereto, the Eurodollar Rate for and Interest Period plus 3.50%.
SECTION 3.4.3. Revolving Loan Rate. Subject to Section
3.4.5, Borrowings of Revolving Loans shall accrue interest at the following
rates per annum, at the election of the Borrower pursuant to an appropriately
delivered Borrowing Request or Continuation/Conversion Notice:
(a) during such periods as such Borrowing consists of
Base Rate Loans, the ING Alternate Base Rate (as in effect from time
to time) plus 1.25%, and
(b) during such periods as such Borrowing consists of
Eurodollar Loans, for each Interest Period relating thereto, the
Eurodollar Rate for such Interest Period plus 3.25%.
SECTION 3.4.4. Continuation and Conversion Elections. By
delivering a Continuation/Conversion Notice to the Agent on or before 11:00
a.m., New York City time, on a Business Day, the Borrower may from time to time
irrevocably elect, on not less than three (3) nor more than five (5) Business
Days' notice, that all or any portion in an aggregate minimum amount of
$500,000 and an integral multiple of $100,000 of Revolving Loans or the Term
Loan be, in the case of Base Rate Loans, converted to Eurodollar Loans or, in
the case of Eurodollar Loans, continued as Eurodollar Loans; provided, however,
that:
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(a) each such continuation or conversion shall be pro
rata among the applicable outstanding Term Percentages of the Term Loan or
Revolving Percentages of Revolving Loans, as the case may be, of all Lenders;
and
(b) no portion of the outstanding principal amount of any
Loan may be continued as, or converted into, a Eurodollar Loan when any Default
has occurred and is continuing.
The Agent shall give prompt telephonic notice to each Lender of the interest
rate determined pursuant to this Section 3.4.4 with respect to such Loans.
Absent delivery of a Continuation/Conversion Notice with respect to any
Eurodollar Loan at least three (3) Business Days before the last day of the
then current Interest Period with respect thereto, such Eurodollar Loan shall,
on such last day, automatically convert to a Base Rate Loan.
SECTION 3.4.5. Post-Default Rates. From and after the
occurrence of an Event of Default and during the continuance thereof, the
Borrower shall pay interest (after as well as before judgment) on the
outstanding principal amount of all Loans and other Obligations at a rate per
annum equal to the Post-Default Rate applicable to such Loans and Obligations.
SECTION 3.4.6. Payment Dates. Accrued interest on any Loans
shall be payable, without duplication:
(a) on the Stated Maturity Date applicable to such Loans;
(b) with respect to any portion of any Loan prepaid or
repaid pursuant to Section 3.3.1, on the date such prepayment or repayment is
due as provided in Section 3.3.1 and, in the case of a voluntary prepayment, on
the date set forth in any notice required for such prepayment;
(c) with respect to Base Rate Loans, on each Monthly
Payment Date, commencing with the first such day following the Closing Date;
(d) with respect to Eurodollar Loans, on the last day of
each applicable Interest Period (and if such Interest Period shall exceed three
months, also on the numerically corresponding day of the third calendar month
after the commencement of such Interest Period);
(e) with respect to any Base Rate Loans converted into
Eurodollar Loans on a day which is not a Monthly Payment Date, on the date of
such conversion; and
(f) on the date of acceleration of such Loans pursuant to
Section 7.2 or Section 7.3.
Interest accruing at the Post-Default Rate and, to the extent permitted by
applicable law, interest on overdue amounts (including overdue interest), shall
be payable upon demand. The Borrower hereby irrevocably authorizes and directs
the Agent to withdraw from the Cash Reserve Account on each
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41
day that accrued interest on the Bridge Loan shall be due and payable in
accordance with this Section 3.4.6, an amount equal to the amount of accrued
interest so due and payable and to apply such amount withdrawn from the Cash
Reserve Account to the payment of such interest.
SECTION 3.4.7. Rate Determinations. All determinations by
the Agent of the rate of interest applicable to any Loan shall be conclusive in
the absence of manifest error.
SECTION 3.4.8. Limitation on Types of Loans. Anything
herein to the contrary notwithstanding, if on or prior to the determination of
any Eurodollar Rate for any Interest Period:
(a) the Agent determines in good faith, which
determination shall be conclusive, that quotations of interest rates for the
relevant deposits referred to in the definition of "Eurodollar Rate" are not
being provided in the relevant amounts or for the relevant maturities for
purposes of determining rates of interest for Eurodollar Loans as provided
herein; or
(b) the Required Lenders determine in good faith, which
determination shall be conclusive, and notify the Agent that the relevant rates
of interest referred to in the definition of "Eurodollar Rate" upon the basis
of which the rate of interest for Eurodollar Loans for such Interest Period is
to be determined are not likely to cover adequately the cost to such Lenders of
making or maintaining Eurodollar Loans for such Interest Period;
then the Agent shall give the Borrower and each Lender prompt notice thereof,
and so long as such condition remains in effect, the Lenders shall be under no
obligation to make additional Eurodollar Loans, to continue Eurodollar Loans or
to convert Base Rate Loans into Eurodollar Loans, and the Borrower shall, on
the last day(s) of the then current Interest Period(s) for the outstanding
Eurodollar Loans, either prepay such Loans or such Loans shall be converted
into Base Rate Loans in accordance with Section 3.4.10 hereof.
SECTION 3.4.9. Illegality. Notwithstanding any other
provision of this Agreement, in the event that it becomes unlawful for any
Lender or its Applicable Lending Office to honor its obligation to make or
maintain Eurodollar Loans hereunder, then such Lender shall promptly notify the
Borrower thereof (with a copy to the Agent) and such Lender's obligation to
make or continue, or to convert Base Rate Loans into, Eurodollar Loans shall be
suspended until such time as such Lender may again make and maintain Eurodollar
Loans (in which case the provisions of Section 3.4.10 hereof shall be
applicable). If requested by the Borrower, any such Lender shall use
reasonable efforts to designate another Applicable Lending Office, provided
that such designation would not, in the discretion of such Lender exercised in
good faith, be materially disadvantageous to such Lender or in any manner
contrary to such Lender's policy.
SECTION 3.4.10. Treatment of Affected Loans. If the
obligation of any Lender to make Eurodollar Loans or continue, or to convert
Base Rate Loans into, Eurodollar Loans shall be suspended pursuant to Sections
3.4.8 or 3.4.9 hereof, such Lender's Eurodollar Loans shall be automatically
converted into Base Rate Loans on the last day(s) of the then current Interest
Period(s)
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for Eurodollar Loans (or, in the case of a conversion required by Sections
3.4.8 or 3.4.9 hereof, on such earlier date as such Lender may specify to the
Borrower with a copy to the Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Sections 3.4.8 or
3.4.9 hereof which gave rise to such conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Loans
have been so converted, all payments and prepayments of principal which would
otherwise be applied to such Lender's Eurodollar Loans shall be applied instead
to its Base Rate Loans; and
(b) all Loans which would otherwise be made or continued
by such Lender as Eurodollar Loans shall be made or continued instead as Base
Rate Loans and all Base Rate Loans of such Lender which would otherwise be
converted into Eurodollar Loans shall remain as Base Rate Loans.
Promptly after the circumstances specified in Sections 3.4.8 or 3.4.9 which
gave rise to the conversion of such Lender's Eurodollar Loans pursuant to this
Section 3.4.10 no longer exist, such Lender shall give the Agent and the
Borrower notice thereof, and the Borrower may thereafter request conversion of
such Loans to Eurodollar Loans, subject to the subsequent application of
Section 3.4.8 or 3.4.9.
SECTION 3.4.11. Compensation. The Borrower shall pay to the
Agent for the account of each Lender, upon the request of such Lender through
the Agent, such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost or expense which
such Lender determines is attributable to:
(a) any payment, prepayment or conversion of a Eurodollar
Loan made by such Lender for any reason (including, without limitation, the
acceleration of the Loans pursuant to Article 7 hereof) on a date other than
the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason
(including, without limitation, the failure of any of the conditions precedent
specified in Article 4 hereof to be satisfied) to borrow a Eurodollar Loan from
such Lender on the date for such borrowing specified in the Borrowing Request
given pursuant to Section 3.1 hereof.
SECTION 3.5. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes or any other Loan Document shall be made,
in accordance with this Section 3.5, free and clear of and without deduction
for any and all present or future Taxes. If the Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder or
under any Note to any Lender or the Agent, (i) the sum payable shall be
increased as may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
3.5), such Lender or the Agent (as the case may be) receives an amount equal to
the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such
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deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
law;
(b) In addition, the Borrower agrees to pay any present
or future stamp or documentary taxes or intangibles taxes or any other excise
or property taxes, transfer taxes, charges or similar levies which arise from
any payment made hereunder or under the Notes or from the execution, delivery
or registration of, or otherwise with respect to this Agreement, the Notes, or
any other Loan Document;
(c) The Borrower will indemnify each Lender and the Agent
for the full amount of the taxes, charges and levies described in clauses (a)
and (b) of this Section 3.5 (including, without limitation, any such taxes,
charges and levies imposed by any jurisdiction on amounts payable under this
Section 3.5) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such taxes, charges and levies were
correctly or legally asserted. Payment under this clause (c) shall be made
within 30 days from the date such Lender or the Agent (as the case may be)
makes written demand therefor;
(d) Within 30 days after the date of any payment of
Taxes, the Borrower will furnish to the Agent, at its address referred to in
Section 9.2, the original or a certified copy of any receipt received by the
Borrower evidencing payment thereof;
(e) On or prior to the Closing Date and on or prior to
the first Business Day of each calendar year thereafter, each Foreign Lender
shall provide the Agent and the Borrower with two properly executed original
Forms 4224 and 1001 (or any successor form) prescribed by the Internal Revenue
Service or other documents satisfactory to the Borrower and the Agent, and
properly executed Internal Revenue Service Forms W-8 or W-9, as the case may
be, certifying (i) as to such Foreign Lenders's status for purposes of
determining exemption from United States withholding taxes with respect to all
payments to be made to such Foreign Lender hereunder and under the Notes or
(ii) that all payments to be made to such Foreign Lender hereunder and under
the Notes are subject to such taxes at a rate reduced to zero by an applicable
tax treaty. Each Foreign Lender agrees to provide the Agent and the Borrower
with new forms prescribed by the Internal Revenue Service upon the expiration
or obsolescence of any previously delivered form, or after the occurrence of
any event requiring a change in the most recent forms delivered by it to the
Agent and the Borrower;
(f) In the event that the Agent or any Lender receives a
refund or credit that, in the good faith determination of the Agent or such
Lender, is attributable to any taxes paid on its behalf by the Borrower in
accordance with this Section 3.5, the Agent or such Lenders, as the case may
be, shall pay an amount equal to such refund or credit to the Borrower; and
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(g) Without prejudice to the survival of any other
agreement hereunder, the agreements and obligations contained in this Section
3.5 shall survive the payment in full of principal and interest hereunder and
under the Notes.
SECTION 3.6. Payments, Interest Rate Computations, Other
Computations, etc. All payments by the Borrower pursuant to this Agreement,
the Notes or any other Loan Document, (a) in respect of principal or interest
on the Bridge Notes, shall be made by the Borrower to the Agent for the account
of the Lenders, pro rata according to their respective unpaid principal amounts
of the Bridge Notes, (b) in respect of principal or interest on the Term Notes,
shall be made by the Borrower to the Agent for the account of the Lenders, pro
rata according to their respective unpaid principal amounts of the Term Notes
and, (c) in respect of principal or interest on the Revolving Notes, shall be
made by the Borrower to the Agent for the account of the Lenders, pro rata
according to their respective unpaid principal amounts of the Revolving Notes.
The payment of the commitment fee referred to in Section 2.4 shall be made by
the Borrower to the Agent for the account of the Lenders entitled thereto pro
rata according to their respective Revolving Percentages. All other amounts
payable to the Agent or any Lender under this Agreement or any other Loan
Document (except under the Facility Fee Letter) shall be paid to the Agent for
the account of the Person entitled thereto. All such payments required to be
made to the Agent shall be made, without setoff, deduction or counterclaim, not
later than 2:00 p.m., New York City time, on the date due, in immediately
available funds, to such account as the Agent shall specify from time to time
by notice to the Borrower. Funds received after that time shall be deemed to
have been received by the Agent on the next following Business Day. The Agent
shall promptly remit in the type of funds received to each Lender notified to
the Agent its share, if any, of such payments received by the Agent for the
account of such Lender or holder. All interest and fees shall be computed on
the basis of the actual number of days (including the first day but excluding
the last day) occurring during the period for which such interest or fee is
payable over a year comprised of 360 days (365 days in the case of interest
computed on the basis of the ING Alternate Base Rate). Whenever any payment to
be made shall otherwise be due on a day which is not a Business Day, such
payment shall be made on the immediately preceding Business Day.
SECTION 3.7. Proration of Payments. If any Lender shall
obtain any payment or other recovery (whether voluntary, involuntary, by
application of setoff or otherwise) on account of principal of or interest on
any Loan or other Obligations in excess of such Lender's or holder's pro rata
share of payments then or therewith obtained thereon by all Lenders, such
Lender which has received in excess of its pro rata share shall purchase from
the other Lenders such participations in such Notes or other Obligations held
by them as shall be necessary to cause such purchaser to share the excess
payment or other recovery ratably with each of them; provided, however, that if
all or any portion of the excess payment or other recovery is thereafter
recovered from such purchasing holder, the purchase shall be rescinded and the
purchase price restored to the extent of such recovery, but without interest.
The Borrower agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 3.7 may, to the fullest extent permitted by
law, exercise all its rights of payment (including pursuant to Section 3.8)
with respect to such participation as fully as if such Lender were the direct
creditor of the Borrower in the amount of such participation. If under any
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applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 3.7 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.7 to share in the benefits of any recovery on such secured claim.
SECTION 3.8. Setoff. In addition to and not in limitation
of any rights of any Lender under applicable law, each Lender shall, upon the
occurrence and during the continuance of any Event of Default, have the right
to appropriate and apply to the payment of the Obligations owing to it
(whether or not then due), and (as security for such Obligations) the Borrower
hereby grants to each Lender, a continuing security interest in, any and all
balances, credits, deposits, accounts or moneys of the Borrower then or
thereafter maintained with such Lender; provided, however, that any such
appropriation and application shall be subject to the provisions of Section 3.7.
SECTION 3.9. Use of Proceeds.
(a) The Borrower shall use the proceeds of the Bridge
Loan on the Closing Date (i) to pay a portion of the Purchase Price, and (ii)
to pay costs and expenses arising in connection with the transactions
contemplated hereby which are set forth in Item 1 (Transaction Costs) of the
Disclosure Schedule, all as more specifically described in Item 2 (Sources and
Uses) of the Disclosure Schedule.
(b) By conversion of $10,000,000 of the outstanding
principal balance of the Bridge Loan into the Term Loan, the Term Loan shall
constitute an extension and renewal of such portion of the Bridge Loan, and the
Term Loan shall not constitute or otherwise be deemed a repayment, refinancing
or novation of any portion of the Bridge Loan.
(c) The Borrower shall use the proceeds of (i) the
Revolving Loans made on the Merger Consummation Date to refinance the remaining
principal balance of the Bridge Loan after conversion of $10,000,000 thereof
into the Term Loan, and to refinance in full the outstanding Indebtedness of
STI described in Item 3 (Indebtedness of STI to be Refinanced) of the
Disclosure Schedule and (ii) the Revolving Loans made after the Merger
Consummation Date for the on-going working capital needs of the Borrower.
(d) No part of the proceeds of any Loans shall be used
for any purpose which violates Regulations G, T, U or X of the F.R.S. Board.
SECTION 3.10. Replacement of Lender Under Certain
Circumstances. If (x) the obligation of any Lender to make Eurodollar Loans or
to continue, or to convert Base Rate Loans into, Eurodollar Loans shall be
suspended pursuant to Sections 3.4.8 or 3.4.9 or (y) the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender in respect of which the Borrower is
required to increase amounts payable to such Lender under subsection (a) of
Section 3.5, in either such case the Borrower may obtain a replacement bank,
financial institution or other lender to acquire and assume all or part of
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such affected Lender's Loans and Revolving Loan Commitment and such affected
Lender shall transfer all or such part of its Loans and Revolving Loan
Commitment upon receipt of the purchase price therefor (which shall equal the
outstanding principal amount of its Loans plus all accrued and unpaid interest
and fees to the date of purchase, plus all other amounts owing by the Borrower
to such affected Lender under this Agreement. Any such replacement bank,
financial institution or other lender shall be subject to the prior written
consent of the Agent, which consent shall not be unreasonably withheld.
ARTICLE 4.
CONDITIONS TO LOANS
SECTION 4.1. Bridge Loan. The obligations of the Lenders
to fund the Bridge Loan on the Closing Date shall be subject to the prior or
concurrent satisfaction of each of the conditions precedent set forth in this
Section 4.1.
SECTION 4.1.1. Resolutions, etc. The Agent shall have
received:
(a) a certificate, dated the Closing Date, of the
Secretary of each Loan Party as of the Closing Date as to:
(i) resolutions of its Board of Directors, then in full
force and effect authorizing the execution, delivery and performance
of the Loan Documents to which such Loan Party is a party and the
related transactions contemplated thereby, and
(ii) the incumbency and signatures of those of its
officers authorized to act with respect to the Loan Documents to which
it is party, upon which certificate each Lender may conclusively rely
until it shall have received further certificates of the Secretary of
such Loan Party canceling or amending such prior certificates;
(b) copies of the Organic Documents of each Loan Party as
of the Closing Date certified by, in the case of the charters, the appropriate
Governmental Authority of the State of such Loan Party's incorporation and, in
the case of its other Organic Documents, such Loan Party's Secretary, which
documents shall be satisfactory to the Agent;
(c) a so-called "good standing" certificate with respect
to each Loan Party as of the Closing Date from the appropriate Governmental
Authority of the State of its incorporation;
(d) evidence of qualification of each Loan Party as of
the Closing Date to do business in each other jurisdiction in which the failure
to so qualify could result in a Material Adverse Change; and
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(e) such other documents (certified if requested) as the
Agent or the Required Lenders may reasonably request, with respect to this
Agreement, the Notes, any other Loan Document, the transactions contemplated
hereby and thereby, or any Organic Document, Contractual Obligation or
Regulatory Approval.
SECTION 4.1.2. Bridge Notes. The Agent shall have received
for the account of each Lender, such Lender's Bridge Note, in each case duly
executed and delivered pursuant to clause (a) of Section 3.2.
SECTION 4.1.3. Subsidiary Guaranty. The Agent shall have
received for the account of each Lender the Brunswick Subsidiary Guaranty, duly
executed and delivered by each Subsidiary of Brunswick located in the United
States, other than STI and its Subsidiaries and other than the Inactive
Subsidiaries.
SECTION 4.1.4. No Contest, etc. No litigation, arbitration,
governmental investigation, injunction, proceeding or inquiry shall be pending
or, to the knowledge of Brunswick, threatened which:
(a) seeks to enjoin or otherwise prevent the consummation
of, or to recover any damages or obtain relief from Brunswick, Technology or,
to the knowledge of Brunswick, the Estate, as a result of, the transactions
contemplated by or in connection with the Acquisition Agreement, this Agreement
or any Loan Document; or
(b) would, in the opinion of the Agent, be materially
adverse to any of the parties hereto with respect to the transactions
contemplated hereby;
No litigation set forth in Item 4 (Litigation) of the Disclosure Schedule, in
the reasonable opinion of the Agent, could result in a Material Adverse Change
or give rise to any liability on the part of the Agent or any Lender in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby.
SECTION 4.1.5. Certificate as to Completed Conditions,
Warranties, No Default, etc. The Agent shall have received a certificate,
dated the Closing Date, of the chief executive officer of Brunswick, to the
effect that:
(a) all conditions precedent set forth in this Section
4.1 and in Section 4.3 have been satisfied;
(b) all representations and warranties set forth in
Article 5 are true and correct in all material respects;
(c) all representations and warranties set forth in the
Loan Documents are true and correct in all material respects; and
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(d) no Default has occurred and is continuing.
SECTION 4.1.6. Opinion of Counsel. The Agent shall have
received opinion letters, dated the Closing Date and addressed to the Agent and
all Lenders, from ▇▇▇▇▇▇ & Dodge, counsel to Brunswick and its Subsidiaries, in
form and substance satisfactory to the Agent, and covering such matters as the
Agent may request, including the Acquisition.
SECTION 4.1.7. Closing Fees, Expenses, etc. The Agent shall
have received the facility fee, which was due and payable pursuant to the terms
of the Facility Fee Letter, and all costs and expenses which have been invoiced
and are payable upon the initial Borrowing pursuant to Section 9.3.
SECTION 4.1.8. Security Documents and Perfection. The Agent
shall have received:
(a) The Brunswick Security Agreement, duly executed by an
Authorized Officer of Brunswick and each Subsidiary of Brunswick located in the
United States, other than STI and its Subsidiaries and other than the Inactive
Subsidiaries;
(b) The Brunswick Patent Assignment and the Brunswick
Trademark Assignment duly executed by an Authorized Officer of Brunswick, and
the Technology Patent Assignment and Technology Trademark Assignment duly
executed by an Authorized Officer of Technology;
(c) Evidence of all filings of the Financing Statements
with respect to the Brunswick Security Agreement and other Security Documents
executed on the Closing Date; searches or other evidence as to the absence of
any perfected security interests or Liens (except those previously disclosed to
and consented to by the Lenders); and evidence that all other actions
(including all actions necessary such that the Brunswick Patent Assignment, the
Brunswick Trademark Assignment, the Technology Patent Assignment and the
Technology Trademark Assignment are acceptable for filing in the United States
Patent and Trademark Office and the payment of all documentary, intangibles,
filing and recording taxes and fees) with respect to the Liens created by the
Security Documents executed on the Closing Date have been taken as are
necessary or appropriate to perfect such Liens;
(d) The Brunswick Pledge Agreement, duly executed by an
Authorized Officer of Brunswick;
(e) All (i) stock certificates and undated stock powers
duly executed in blank relating thereto with respect to the pledged securities
under the Brunswick Pledge Agreement, which pledged securities shall consist of
the STI Shares and all outstanding Stock held by Brunswick in its other
Subsidiaries located in the United States (other than the Inactive
Subsidiaries) and (ii) all promissory notes and other instruments owned by
Borrower duly endorsed in blank pledged under the Brunswick Pledge Agreement;
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(f) A collateral assignment to the Agent, for its benefit
and the ratable benefit of the Lenders, of Brunswick's rights under the
Acquisition Agreement and all other documents executed or delivered by the
Estate pursuant to the Acquisition Agreement, duly consented to by the Estate,
which assignment shall be in form and substance satisfactory to the Agent;
(g) A collateral assignment to the Agent, for its benefit
and the ratable benefit of the Lenders, of Brunswick's rights under the Estate
Registration Rights Agreement, which assignment and registration rights shall
be in form and substance satisfactory to the Agent;
(h) The Cash Reserve Account Agreement, duly executed by
Brunswick, the Agent and SunTrust Bank, Atlanta.
SECTION 4.1.9. Employment Agreements; Compensation. The
Agent shall have received copies of all employment agreements to which
Brunswick or any of its Subsidiaries is a party (including STI or any of its
Subsidiaries), and the Agent shall be satisfied in all respects with the levels
of compensation (including, without limitation, fees, wages, salaries, deferred
payment arrangements, stock options, incentive plans and pension or employee
benefit contributions) paid to key members of management.
SECTION 4.1.10. Pension and Welfare Liabilities. The Agent
shall have received (i) the most recent actuarial valuation report for each
Single Employer Plan, if any, and a copy of Schedule B to the Annual Report on
Form 5500 of the Internal Revenue Service for each such Single Employer Plan
most recently filed with the Internal Revenue Service, and (ii) a report
prepared by Brunswick in form and substance satisfactory to the Agent detailing
any liabilities of Brunswick and each of its Subsidiaries and of STI and each
of its Subsidiaries, and of each Commonly Controlled Entity of Brunswick or STI
for post-retirement benefits under Plans which are welfare benefit plans.
SECTION 4.1.11. Insurance. The Agent shall have received
evidence satisfactory to it that the insurance maintained by Brunswick, STI and
their respective Subsidiaries is issued by an insurance company with a Best's
rating of "A" or better and a financial size category of not less than XII, is
in amounts satisfactory to the Agent and, in the case of insurance maintained
by Brunswick and its Subsidiaries (other than STI and its Subsidiaries), under
policies naming the Agent as loss payee (in the case of casualty insurance
policies) and as additional insured (in the case of liability policies), and
otherwise complying with the requirements of this Agreement and the Security
Documents.
SECTION 4.1.12. Key Man Insurance. Brunswick shall have
purchased "key-man" life insurance policies in the total amount of $500,000 on
the life of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
SECTION 4.1.13. Financial Information, etc. The Agent shall
have received the historical financial statements referred to in Section 5.4,
the Closing Date Pro Forma Balance Sheet, a Fair Saleable Value Balance Sheet
for Brunswick as of the Closing Date, the Trial Merger Pro Forma Balance Sheet
and the Projections.
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SECTION 4.1.14. Solvency, etc. The Fair Saleable Value
Balance Sheet for Brunswick as of the Closing Date shall show that the assets
of Brunswick are at least $6,540,888 greater than the liabilities of Brunswick
(including all liabilities and obligations of Brunswick, fixed or contingent,
direct or indirect, disputed or undisputed, and whether or not required to be
reflected on a balance sheet prepared in accordance with GAAP, except to the
extent noted thereon); and the Agent shall have received a certificate of the
chief executive officer of Brunswick dated the Closing Date, stating that,
after giving effect to the consummation of the transactions contemplated by
this Agreement to occur on the Closing Date (including the Acquisition and the
making of the Bridge Loan), each of Brunswick and Technology is Solvent.
SECTION 4.1.15. Acquisition. The Acquisition Agreement shall
remain in full force and effect and shall not have been amended, modified or
supplemented without the Agent's approval, all conditions precedent to the
consummation by Brunswick of the transactions contemplated by the Acquisition
Agreement shall have been fully satisfied or waived with the consent of the
Agent, Brunswick shall have delivered to the Agent evidence satisfactory to the
Agent that the Acquisition shall be consummated simultaneously with the funding
of the Bridge Loan substantially in accordance with the terms of the
Acquisition Agreement, and Brunswick shall have delivered to the Agent each of
the following:
(a) resolutions of the boards of directors and, to the
extent required, the stockholders of Brunswick, certified by the Secretary of
Brunswick, to be duly adopted and in full force and effect on the Closing Date,
authorizing the execution, delivery and performance of the Acquisition
Agreement;
(b) certified copies of all documents evidencing any
other necessary corporate action, consents and Regulatory Approvals with
respect to the consummation of the transactions contemplated by the Acquisition
Agreement; and
(c) a certificate from the chief executive officer of
Borrower to the effect that attached thereto are true and correct copies of the
Acquisition Agreement and each of the material documents, instruments and
agreements executed and delivered pursuant to the Acquisition Agreement and
making such statements of fact concerning the Acquisition and the other
transactions consummated pursuant to such agreements as the Agent shall
reasonably request.
SECTION 4.1.16. Cash Reserve Fund. Brunswick shall have
established the Cash Reserve Account for the benefit of the Agent and shall
have irrevocably directed the Agent to deposit from the proceeds of the Bridge
Loan the sum of $1,000,000 in the Cash Reserve Account.
SECTION 4.1.17. Capital Contributions; Junior Subordinated
Note. The Agent shall have received evidence that, since August 1, 1995,
Brunswick has received not less than $7,000,000 in cash proceeds from the
issuance of its Stock, and $1,000,000 in cash proceeds from the issuance of the
Junior Subordinated Note.
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SECTION 4.1.18. Other Documents, Certificates, Etc. The
Agent shall have received such other documents, certificates, opinions of
counsel or other materials as it reasonably requests from any Loan Party.
SECTION 4.2. Term Loan and Revolving Loans. The
obligations of the Lenders to fund the Term Loan and Revolving Loans on the
Merger Consummation Date shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Section 4.2.
SECTION 4.2.1. Resolutions, etc. The Agent shall have
received:
(a) a certificate, dated the Merger Consummation Date, of
the Secretary of STI as to:
(i) resolutions of its Board of Directors, then in full
force and effect authorizing (A) the Merger, (B) the execution,
delivery and performance of the Assumption Agreement, the Term Notes,
the Revolving Notes and all other Loan Documents to which such Loan
Party is a party and (C) the related transactions contemplated
thereby, and
(ii) the incumbency and signatures of those of its
officers authorized to act with respect to the Assumption Agreement,
the Term Notes, the Revolving Notes and all Loan Documents to which it
is party, upon which certificate each Lender may conclusively rely
until it shall have received further certificates of the Secretary of
such Loan Party canceling or amending such prior certificates;
(b) a certificate, dated as of the Merger Consummation
Date, of the Secretary of each Subsidiary of STI executing a Loan Document as
of the Merger Consummation Date as to:
(i) resolutions of its Board of Directors, then in full
force and effect, authorizing the execution, delivery and performance
of each Loan Document to which such Subsidiary is a party and the
transactions contemplated thereby, and
(ii) the incumbency and signature of those of its officers
authorized to act with respect to all Loan Documents to which it is a
party, upon which certificate each Lender may conclusively rely until
it shall have received further certificates of the Secretary of such
Subsidiary canceling or amending such prior certificate;
(c) copies of the Organic Documents of STI and each
Subsidiary of STI executing a Loan Document as of the Merger Consummation Date
certified by, in the case of charters, the appropriate Governmental Authority
of the State of such Loan Party's incorporation and, in the case of its other
Organic Documents, such Loan Party's Secretary, which documents shall be
satisfactory to the Agent;
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(d) a so-called "good standing" certificate with respect
to STI and each Subsidiary of STI executing a Loan Document as of the Merger
Consummation Date from the appropriate Governmental Authority of the State of
its incorporation;
(e) evidence of qualification of STI and each Subsidiary
of STI to do business in each other jurisdiction in which the failure to so
qualify could result in a Material Adverse Change; and
(f) such other documents (certified if requested) as the
Agent may reasonably request, with respect to this Agreement, the Notes, any
other Loan Document, the transactions contemplated hereby and thereby, or any
Organic Document, Contractual Obligation or Regulatory Approval.
SECTION 4.2.2. Term Notes and Revolving Notes. The Agent
shall have received for the account of each Lender, such Lender's Term Note and
Revolving Note, in each case, duly executed and delivered by STI pursuant to
clauses (b) and (c) of Section 3.2.
SECTION 4.2.3. STI Subsidiary Guaranty. The Agent shall
have received for the account of each Lender the STI Subsidiary Guaranty, duly
executed and delivered by each Subsidiary of STI located in the United States,
other than the Inactive Subsidiaries.
SECTION 4.2.4. Release of Liens on Assets. All Indebtedness
of STI and its Subsidiaries described in Item 3 (Indebtedness of STI to be
Refinanced) of the Disclosure Schedule shall have been repaid in full and all
holders of such Indebtedness shall have acknowledged such repayment, released
STI and its Subsidiaries from any liability in respect of such Indebtedness,
and released all Liens on the assets securing such Indebtedness pursuant to
UCC-3 Termination Statements and other Instruments as shall be suitable or
appropriate in connection therewith.
SECTION 4.2.5. No Contest, etc. No litigation, arbitration,
governmental investigation, injunction, proceeding or inquiry shall be pending
or, to the knowledge of Brunswick or STI, threatened which:
(a) seeks to enjoin or otherwise prevent the consummation
of, or to recover any damages or obtain relief as a result of, the Merger or
the transactions contemplated by or in connection with this Agreement, the
Assumption Agreement or any other Loan Document; or
(b) would, in the reasonable opinion of the Agent be
materially adverse to any of the parties hereto with respect to the
transactions contemplated hereby;
No litigation set forth in Item 4 (Litigation) of the Disclosure Schedule, in
the reasonable opinion of the Agent, could result in a Material Adverse Change
or give rise to any liability on the part of the Agent or any Lender in
connection with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby.
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SECTION 4.2.6. Certificate as to Completed
Conditions, Warranties, No Default, etc. The Agent shall have received a
certificate, dated the Merger Consummation Date, of the chief executive officer
of STI to the effect that;
(a) all conditions precedent set forth in this Section
4.2 and in Section 4.3 have been satisfied;
(b) all representations and warranties set forth in
Article 5 are true and correct in all material respects;
(c) all representations and warranties set forth in the
Loan Documents are true and correct in all material respects; and
(d) no Default has occurred and is continuing.
SECTION 4.2.7. Opinions of Counsel. The Agent shall have
received opinion letters, dated the Merger Consummation Date and addressed to
the Agent and all Lenders, from
(a) counsel to STI and its Subsidiaries, substantially in
the form of Exhibit H;
(b) counsel to STI in the States of Maryland and Missouri,
in form and substance reasonably satisfactory to the Agent and covering such
matters as the Agent may request;
(c) counsel to STI and STI International, Limited in
England, in form and substance reasonably satisfactory to the Agent and
covering such matters relating to the Share Charge and STI International,
Limited, as the Agent may request; and
(d) if required by the Agent, counsel to STI and
Brunswick Biomedical Limited in Ireland, in form and substance reasonably
satisfactory to the Agent and covering such matters related to Brunswick
Biomedical Limited and a share charge over Stock of Brunswick Biomedical
Limited owned by STI or any of its Subsidiaries as the Agent may request.
SECTION 4.2.8. Assumption Agreement. The Agent shall have
received the Assumption Agreement duly executed by an Authorized Officer of STI.
SECTION 4.2.9. Security Documents and Perfection. The Agent
shall have received:
(a) The STI Security Agreement, duly executed by an
Authorized Officer of STI and each Subsidiary of STI located in the United
States, other than the Inactive Subsidiaries;
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(b) The STI Patent Assignment and the STI Trademark
Assignment duly executed by an Authorized Officer of STI and each Subsidiary of
STI located in the United States, other than the Inactive Subsidiaries;
(c) Evidence of all filings of the Financing Statements
with respect to the STI Security Agreement and the other Security Documents
executed and delivered by STI and its Subsidiaries on the Merger Consummation
Date; evidence that all other actions (including all actions necessary such
that the STI Patent Assignment and the STI Trademark Assignment are acceptable
for filing in the United States Patent and Trademark Office and the payment of
all documentary, intangibles, filing and recording taxes and fees) with respect
to the Liens created by the Security Documents executed by STI and its
Subsidiaries on the Merger Consummation Date have been taken as are necessary
or appropriate to effect such Liens;
(d) UCC amendments to all Financing Statements naming
Brunswick as debtor and filed pursuant to clause (c) of Section 4.1.8, amending
such Financing Statements to reflect that the debtor with respect to such
Financing Statements is STI as successor by merger to Brunswick, in each case
duly executed by the Borrower;
(e) searches or other evidence as to the absence of any
perfected security interests or Liens (except those permitted under Section
6.2.3 and those to be released pursuant to Section 4.2.4.) against STI or any
of its property; and evidence that all other actions with respect to the Liens
created by the Security Documents have been taken as are necessary or
appropriate to continue the perfection of Liens granted thereunder; and
(f) The STI Pledge Agreement and the Share Charge, duly
executed by an Authorized Officer of STI, and if requested by the Agent prior
to the Merger Consummation Date, a share charge (or the equivalent thereof)
pursuant to which sixty-six and two-thirds (66 2/3%) of the outstanding Stock
of Brunswick Biomedical Limited shall be pledged to the Agent, duly executed by
an Authorized Officer of STI and any Subsidiary of STI that owns such Stock;
(g) all (i) stock certificates and undated stock powers
duly executed in blank relating thereto with respect to the pledged securities
under the STI Pledge Agreement, which pledged securities shall constitute
(after giving effect to the Merger) all outstanding stock of all Subsidiaries
of STI located in the United States (other than the Inactive Subsidiaries) and
sixty-six and two-thirds percent (66-2/3%) of the outstanding stock of all
Subsidiaries of STI located outside the United States; provided, however, STI
and its Subsidiaries shall not have to pledge any shares of outstanding Stock
of Brunswick Biomedical Limited unless requested by the Agent prior to the
Merger Consummation Date; and (ii) all promissory notes and other instruments
owned by STI duly endorsed in blank pledged under the STI Pledge Agreement.
(h) Mortgages covering the real property owned and leased
by STI which is identified on Item 5 (Mortgaged Property) of the Disclosure
Schedule, together with such title insurance policies, title searches,
abstracts of title or other title work as may be required by the Agent
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with regard to such real property, insuring the security title of the Agent in
such real property and including such endorsements as the Agent shall require,
as well as surveys, valuations of properties and assets, certificates of
occupancy, deeds, leases, tenant subordination agreements, leasehold
assignments and related consents of landlords, and such environmental reports,
assessments and diligence as the Agent shall require; and
(i) An assignment to the Agent, for its benefit and the
ratable benefit of the Lenders, of the insurance policies described in Section
4.1.12 (with respect to which the insurer shall have executed and delivered to
the Agent a written consent), which assignment shall be in form and substance
satisfactory to the Agent.
SECTION 4.2.10. Financial Information, etc. The Agent shall
have received unaudited consolidated balance sheets of STI as of the last day
of each Fiscal Quarter subsequent to the Fiscal Quarter ending January 31, 1996
and ending prior to the Merger Consummation Date and the related consolidated
statements of income for each of such Fiscal Quarters, and, if available, the
consolidated audited balance sheets of STI as of July 31, 1996, as well as the
Merger Pro Forma Balance Sheet, a Fair Saleable Value Balance Sheet for STI as
of the Merger Consummation Date, and, to the extent required to reflect
historical experience, revisions to the Projections delivered as of the Closing
Date.
SECTION 4.2.11. Solvency, etc. The Fair Saleable Value
Balance Sheet for STI as of the Merger Consummation Date shall show that the
assets of STI (after giving effect to the Merger) are at least $6,540,888
greater than the liabilities of STI (after giving effect to the Merger)
(including all liabilities and obligations of STI, fixed or contingent, direct
or indirect, disputed or undisputed, and whether or not required to be
reflected on a balance sheet prepared in accordance with GAAP, except to the
extent noted thereon); and the Agent shall have received a certificate of the
chief executive officer of STI dated the Merger Consummation Date, stating that
after giving effect to the consummation of the transactions contemplated by
this Agreement to occur on the Merger Consummation Date (including the Merger,
the making of the Revolving Loans to be made on the Merger Consummation Date
and the conversion of $10,000,000 of the Bridge Loan into the Term Loan), STI
and each of its Subsidiaries (other than the Inactive Subsidiaries) is Solvent.
SECTION 4.2.12. Merger of Brunswick into STI. The Agent shall
have received:
(a) evidence that all filings and registrations required
to be made with the Securities and Exchange Commission in connection with the
consummation of the Merger shall have been submitted and, to the extent
applicable, approved, and shall be effective;
(b) copies of all agreements, instruments, and documents
executed, delivered or furnished in connection with the Merger (the "Merger
Documents"), and evidence that the Merger Documents remain in full force and
effect and have not have been amended, modified or supplemented and that all
conditions precedent to the consummation of the Merger have been fully
satisfied or waived;
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(c) each of the following, in form and substance
satisfactory to the Agent:
(i) resolutions of the boards of directors and, to the
extent required, the stockholders of Brunswick and STI, certified by
the Secretary of Brunswick and STI, respectively, to be duly adopted
and in full force and effect on the Merger Consummation Date,
authorizing and approving the Merger and the execution, delivery and
performance of the Merger Documents;
(ii) certified copies of all documents evidencing any
other necessary corporate action, consents and Regulatory Approvals
with respect to the consummation of the Merger;
(iii) a certificate from the chief executive officer of
Borrower (A) to the effect that attached thereto are true and correct
copies of the Merger Documents and each of the material documents,
instruments and agreements executed and delivered pursuant thereto,
that the Merger has been consummated in accordance with all applicable
law, rules and regulations, including all securities and antitrust
laws and regulations, and that all Regulatory Approvals required in
connection with the Merger have been obtained, and (B) making such
other statements of fact concerning the Merger as the Agent shall
reasonably request;
(d) a certificate from the chief executive officer of
Borrower certifying that no shareholder of STI has exercised or that no
shareholder of STI is entitled to exercise any appraisal rights they may have
in connection with the Merger, whether such rights arise as a matter of law or
otherwise; and
(e) a certificate from the chief executive officer of
Borrower certifying that shareholders of Brunswick holding no more than three
percent (3%) of the outstanding capital stock of Brunswick have exercised any
appraisal rights they may have in connection with the Merger, whether such
rights arise as a matter of law or otherwise.
SECTION 4.2.13. Maturity of Bridge Loan. The date of the
conversion of $10,000,000 of the outstanding principal balance of the Bridge
Loan and the funding of the Revolving Loans to be funded on the Merger
Consummation Date shall be on or prior to the Stated Maturity Date of the
Bridge Loan.
SECTION 4.2.14. Reaffirmation of Representations and
Warranties. The Borrower shall have reaffirmed as of the Merger Consummation
Date, in form and substance satisfactory to the Agent, each of the
representations and warranties made in Article 5 of this Agreement, except for
any such representation or warranty expressly made as of a particular date,
which STI shall have reaffirmed as of such date. In addition, STI shall have
represented and warranted to the Agent and the Lenders the following (which
shall be deemed to supplement the representations and warranties in Article 5):
(i) the Merger Pro Forma Balance Sheet has been prepared in accordance with
GAAP consistently applied (except to the extent based upon estimates)
throughout the periods involved and presents fairly in all material respects
the matters reflected
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therein, (ii) as of the Merger Consummation Date, neither STI nor its
Subsidiaries has material contingent liabilities or material liabilities for
taxes, long-term leases or unusual forward or long-term commitments which are
not reflected in such Merger Pro Forma Balance Sheet, (iii) as of the Merger
Consummation Date, after giving effect to the consummation of the transactions
contemplated by this Agreement and the other Loan Documents to occur on the
Merger Consummation Date (including the Merger, the conversion of $10,000,000
of the outstanding principal balance of the Bridge Loan into the Term Loan and
the making of the Revolving Loans contemplated to be made on the Merger
Consummation Date), STI is solvent, and (iv) each of the Security Documents
executed on the Merger Consummation Date creates a fully perfected first lien
on, and security interest in, all right, title and interest of the Loan Parties
executing such Security Documents in all of the Collateral described therein,
other than Liens permitted under Section 6.2.3.
SECTION 4.2.15. No Dividends; etc. Since the Closing Date,
STI shall not have declared or paid any dividends or other distributions on its
Stock, and no material increase shall have occurred in the liabilities,
liquidated or contingent, of STI and its Subsidiaries and no material decrease
shall have occurred in the assets of STI and its Subsidiaries.
SECTION 4.3. All Loans. Without duplication of any
conditions precedent required to be satisfied pursuant to Section 4.1 or
Section 4.2, the obligations of the Lenders to make any Loan, shall be subject
to the satisfaction of each of the additional conditions precedent set forth in
this Section 4.3.
SECTION 4.3.1. Compliance with Warranties, No Default, etc.
The representations and warranties set forth in Article 5 (including from and
after the Merger Consummation Date, those representations and warranties set
forth in Section 4.2.14) shall have been true and correct in all material
respects as of the date initially made. In addition, both before and after
giving effect to the making of any such Loan and the application of the proceeds
thereof,
(a) such representations and warranties shall be
true and correct in all material respects with the same effect as if
then made (except to the extent expressly made as of a specified date,
in which case such representations and warranties shall be true as of
such specified date);
(b) all representations and warranties set forth
in the Security Documents shall be true and correct in all material
respects with the same effect as if then made (except to the extent
expressly made as of a specified date, in which case such
representations and warranties shall be true as of such specified
date);
(c) no material adverse development shall have
occurred in any litigation, arbitration or governmental investigation,
proceeding or inquiry disclosed pursuant to Section 5.7 which renders
such litigation, arbitration or governmental investigation or inquiry
or proceeding, in the reasonable opinion of the Required Lenders,
likely to be adversely determined and, if adversely determined, could
result in a Material Adverse Change; and
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(d) no Default shall have occurred and be continuing.
SECTION 4.3.2. Borrowing Request, etc. The Agent shall have
received a duly completed Borrowing Request. The delivery of any such
Borrowing Request, and the acceptance by the Borrower of the proceeds of any
such Loan, shall constitute a representation and warranty by the Borrower that
on the date of such request for a Loan, and before and after giving effect to
the making of such Loan and the application of any proceeds of such Loan, all
statements set forth in Section 4.3.1 are true and correct. In the event that,
in connection with the delivery of any such Borrowing Request the Borrower is
required to amend any Item of the Disclosure Schedule in order that the
statement set forth in clause (a) or (b) of Section 4.3.1 shall be true and
correct, the Borrower shall deliver to the Agent at least three (3) Business
Days prior to the date of the Borrowing requested or to be requested, a request
that such Item of the Disclosure Schedule be amended, and the Agent shall
promptly forward such request to the Lenders. To the extent that the Required
Lenders agree to such requested amendment or otherwise make any Loans after
receipt of such request, the representations and warranties proposed to be
amended by such amendment to the Disclosure Schedule will be deemed amended for
purposes of this Agreement.
SECTION 4.3.3. Satisfactory Legal Form. All documents
executed or submitted by or on behalf of the Borrower or any Subsidiary shall
be reasonably satisfactory in form and substance to the Agent and its counsel,
the Agent and its counsel shall have received all information, and such
counterpart originals or such certified or other copies of such Instruments, as
the Agent or its counsel may request. All legal matters incident to the
transactions contemplated by this Agreement shall be satisfactory to counsel to
the Agent.
SECTION 4.3.4. Margin Regulations. The making of such Loan
and the use of the proceeds thereof shall not violate Regulations G, T, U and X
of the F.R.S. Board.
SECTION 4.3.5. Adverse Change. In the reasonable judgment
of the Required Lenders, no Material Adverse Change shall have occurred since
the Closing Date.
SECTION 4.3.6. Change in Law. On the date of such Loan, no
change shall have occurred in applicable law, or in applicable regulations
thereunder or in interpretations thereof by any court or Governmental Authority
which, in the opinion of any Lender, would make it illegal for such Lender to
make the Loan required to be made on such date.
ARTICLE 5.
WARRANTIES, ETC.
In order to induce the Lenders and the Agent to enter into
this Agreement, to engage in the transactions contemplated herein and in the
other Loan Documents and to make the Loans, the
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Borrower represents and warrants to the Agent and each Lender as set forth in
this Article 5; provided, however, that to the extent any representation or
warranty made by Brunswick prior to the Merger Consummation Date relates to STI
or any of its Subsidiaries, such representation or warranty is made to the best
knowledge of Brunswick.
SECTION 5.1. Organization, Power, Authority, etc. Each of
the Borrower and its Subsidiaries (i) is a corporation validly organized and
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified to do business and is in good standing as
a foreign corporation in each jurisdiction where the failure to so qualify
could result in a Material Adverse Change, and (iii) has full power and
authority, and, except as set forth in Item 6 (Governmental Licenses) of the
Disclosure Schedule, holds all governmental licenses, permits, registrations
and other Regulatory Approvals required under all Requirements of Law, to own
and hold under lease its property and to conduct its business as conducted
prior to the Closing Date and as contemplated to be conducted subsequent to the
Closing Date and the Merger Consummation Date. Each Loan Party has full power
and authority to enter into and perform its Obligations under this Agreement,
the Notes and each other Loan Document executed or to be executed by it and to
incur Indebtedness hereunder or under the Subsidiary Guaranty, as the case may
be.
SECTION 5.2. Due Authorization. The execution and
delivery by each Loan Party of each Loan Document executed or to be executed by
it, and the incurrence and performance by such Loan Party of its respective
Obligations have been duly authorized by all necessary corporate action, do not
require any Regulatory Approval (except those Regulatory Approvals already
obtained), do not and will not conflict with, result in any violation of, or
constitute any default under, any provision of any Organic Document or
Contractual Obligation of such Loan Party or any law or governmental regulation
or court decree or order, and will not result in or require the creation or
imposition of any Lien on such Loan Party's properties pursuant to the
provisions of any Contractual Obligation of such Loan Party.
SECTION 5.3. Validity, etc. Each of this Agreement, the
Notes and the other Loan Documents constitutes the legal, valid and binding
obligation of each Loan Party executing and delivering such Loan Document,
enforceable in accordance with its terms subject to the effect of any
applicable bankruptcy, insolvency, moratorium or similar laws affecting
creditors' rights generally, and the effect of general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
SECTION 5.4. Financial Information; Solvency.
(a) Except as disclosed in Item 7 (Exceptions to GAAP) of
the Disclosure Schedule, all balance sheets, all statements of operations,
stockholders' equity and cash flows, and all other financial information of
Brunswick and STI which have been furnished by or on behalf of Brunswick or STI
to the Agent and the Lenders for the purposes of or in connection with this
Agreement or any transaction contemplated hereby, including:
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(i) the consolidated audited balance sheets of Brunswick
as of June 30, 1994 and June 30, 1995, and the related consolidated
statements of income and cash flows for each of the two (2) fiscal
years of Brunswick ending June 30, 1994 and June 30, 1995, together
with the opinion thereon of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP;
(ii) the unaudited consolidated balance sheets of
Brunswick as of September 30, 1995 and December 31, 1995, and the
related consolidated statements of income for each of the fiscal
quarters of Brunswick ending September 30, 1995 and December 31, 1995;
(iii) the consolidated audited balance sheets of STI as of
July 31, 1994 and July 31, 1995, and the related consolidated
statements of income and cash flows for each of the two (2) fiscal
years of STI ending July 31, 1994 and July 31, 1995, each as included
in its annual report on Form 10-K filed with the Securities and
Exchange Commission, together with the opinion thereon of Price
Waterhouse LLP;
(iv) the unaudited consolidated balance sheets of STI as
of October 31, 1995 and January 31, 1996 and the related consolidated
statements of income for each of the fiscal quarters of STI ending
October 31, 1996 and January 31, 1996, each as included in its
quarterly report on Form 10-Q filed with the Securities and Exchange
Commission;
(v) the Closing Date Pro Forma Balance Sheet;
(vi) the Trial Merger Pro Forma Balance Sheet; and
(vii) the Projections;
have been prepared in accordance with GAAP consistently applied (except to the
extent items in the Closing Date Pro Forma Balance Sheet, the Trial Merger Pro
Forma Balance Sheet, and the Projections are based upon estimates) throughout
the periods involved and present fairly in all material respects the matters
reflected therein subject, in the case of unaudited statements, to changes
resulting from normal year-end audit adjustments and except as to the absence
of footnotes. As of the Closing Date, neither Brunswick nor STI nor any of
their respective Subsidiaries has material contingent liabilities or material
liabilities for taxes, long-term leases or unusual forward or long-term
commitments which are not reflected in the financial statements described in
clauses (i), (ii), (iii), (iv), (v) and (vi).
(b) After giving effect to the consummation of the
transactions contemplated by this Agreement and the other Loan Documents to
occur on the Closing Date (including the Acquisition and the Bridge Loan),
Brunswick is Solvent.
SECTION 5.5. Material Adverse Change. (a) Since June 30,
1995, there has been no material adverse change in the condition (financial or
otherwise), operations, performance, business, properties or prospects of the
Brunswick and its Subsidiaries (other than STI and its
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Subsidiaries), taken as a whole, or in any industry in which the Borrower or
any of its Subsidiaries (other than STI and its Subsidiaries) is engaged in any
material respect.
(b) Since July 31, 1995, there has been no material
adverse change in the condition (financial or otherwise), operations,
performance, business, properties or prospects of STI and its Subsidiaries,
taken as a whole, or in any industry in which STI or any of its Subsidiaries is
engaged in any material respect.
SECTION 5.6. Absence of Default. Neither the Borrower nor
any Subsidiary is in default in the payment of (or in the performance of any
obligation applicable to) any Indebtedness, or is in material default under any
regulation of any Governmental Agency or court decree or order, or is in
default under any Requirements of Law which default could result in a Material
Adverse Change.
SECTION 5.7. Litigation, Legislation, etc. Except as
disclosed in Item 4 (Litigation) of the Disclosure Schedule, there is no
pending or, to the knowledge of the Borrower, threatened litigation,
arbitration or governmental investigation, proceeding or inquiry which, if
adversely determined, could result in a Material Adverse Change; and none of
the proceedings set forth in such Item 4 seeks to amend, modify or enjoin the
transactions contemplated hereby or is likely to be adversely determined.
There is no legislation, governmental regulation or judicial decision that
could result in a Material Adverse Change.
SECTION 5.8. Regulations G, T, U and X. Neither the
Borrower nor any Subsidiary is engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing
or carrying Margin Stock (as defined in F.R.S. Board Regulation G or U) and,
except for the STI Shares prior to the Merger Consummation Date, no assets of
the Borrower or any Subsidiary consist of Margin Stock. The Loans hereunder
will not be used for a purpose which violates, or would be inconsistent with,
F.R.S. Board Regulation G, T, U or X.
SECTION 5.9. Government Regulation. Neither the Borrower
nor any Subsidiary is an "investment company" within the meaning of the
Investment Holding Company Act of 1940, as amended, or a "holding company," or
a "subsidiary company" of a "holding company," or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company," within the
meaning of the Public Utility Holding Company Act of 1935, as amended, or
subject to regulation under the Federal Power Act, the Interstate Commerce Act
or any other federal or state law limiting its ability to incur Indebtedness or
to execute, deliver or perform the Loan Documents to which it is party.
SECTION 5.10. Taxes. Each of the Borrower and its present
or past Subsidiaries has filed all tax returns and reports required by law to
have been filed by it and has paid all taxes and Charges thereby shown to be
owing, except any such taxes or Charges which are being diligently contested in
good faith by appropriate proceedings and for which adequate reserves in
accordance with GAAP shall have been set aside on its books.
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SECTION 5.11. Pension and Welfare Plans. (a) Except as
disclosed in Item 8 (Benefit Plans) of the Disclosure Schedule, neither the
Borrower nor any Subsidiary or Commonly Controlled Entity has assumed any
material liability under any employee benefit plan, fund, program,
arrangement, agreement or commitment maintained by or on behalf of or
contributed to by or on behalf of any entity or trade or business which,
together with any of such corporations, is treated as a single employer under
Sections 414(b), (c), (m) or (o) of the IRC. Neither the Borrower nor any
Subsidiary or Commonly Controlled Entity shall be subject (directly or
indirectly) to any material liability, tax or penalty whatsoever to any person
whomsoever with respect to any employee benefit plan, fund, program,
arrangement, agreement or commitment described in the immediately preceding
sentence.
(b) No Reportable Event which could result in a Material
Adverse Change has occurred during the six-year period prior to the date on
which this representation is made or deemed made with respect to any Single
Employer Plan. The Borrower, each Commonly Controlled Entity, each Subsidiary,
each Plan, and each trust maintained pursuant to any such Plan have complied in
all material respects with the applicable provisions of ERISA, the IRC, and any
other applicable laws. Except as disclosed in Item 8 (Benefit Plans) of the
Disclosure Schedule, the present value of all "benefit liabilities" (within the
meaning of Section 4001(a)(16) of ERISA) under each Single Employer Plan
maintained by the Borrower, any Subsidiary or any Commonly Controlled Entity
(based on those assumptions that would be used in a termination of each such
Plan) did not, as of the last annual valuation date for which an actuarial
valuation report has been done, exceed the value of the assets of such Plan as
of such date. Except as disclosed in such Item 8, neither the Borrower nor any
Commonly Controlled Entity or Subsidiary has incurred any liability to the PBGC
or to any other Person under Section 4062, 4063 or Section 4064 of ERISA on
account of the termination of, or its withdrawal from, a Single Employer Plan,
and no Lien has been imposed on the assets of the Borrower or any Commonly
Controlled Entity or Subsidiary under Section 4068 of ERISA. To the knowledge
of the Borrower and any Commonly Controlled Entities and Subsidiaries, there
does not exist any event or condition which would permit the institution of
proceedings to terminate any Single Employer Plan pursuant to Section 4042 of
ERISA. Except as disclosed in Item 8 of the Disclosure Schedule, no
"accumulated funding deficiency" (as defined in Section 302 of ERISA or Section
412 of IRC), whether or not waived, exists with respect to any Pension Plan.
The Borrower and each Commonly Controlled Entity and Subsidiary have timely
made in full each quarterly installment payment to any Pension Plan required
under Section 302(e) of ERISA or Section 412(m) of the IRC and have also made
full and timely payment of any other costs or expenses related to such a Plan.
The Borrower and all Commonly Controlled Entities and Subsidiaries have made
full and timely payment of all contributions to Multiemployer Plans required
under ERISA, the IRC or applicable collective bargaining agreements. Neither
the Borrower nor any Commonly Controlled Entity or Subsidiary has had a
complete or partial withdrawal from any Multiemployer Pension Plan and the
liability to which the Borrower or any Commonly Controlled Entity or Subsidiary
would become subject under ERISA if the Borrower or any such Commonly
Controlled Entity or Subsidiary were to withdraw completely from all
Multiemployer Pension Plans as of the valuation date most closely preceding the
date hereof is not in excess of $200,000. No such Multiemployer Pension Plan
has been terminated or is in Plan Reorganization or ERISA Insolvent, nor, to
the knowledge of the
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Borrower and any Commonly Controlled Entities and Subsidiaries, is any such
Multiemployer Pension Plan likely to be terminated or to become in Plan
Reorganization or ERISA Insolvent. To the knowledge of the Borrower and any
Commonly Controlled Entities and Subsidiaries, no "accumulated funding
deficiency" (as defined in Section 302 of ERISA or Section 412 of the IRC),
whether or not waived, exists with respect to any Multiemployer Plan. The
present value (determined using assumptions which are reasonable in respect of
the benefits provided and the employees participating) of the aggregate
liability of the Borrower and each Subsidiary and Commonly Controlled Entity
for post-retirement benefits to be provided to their current and former
employees under Plans which are welfare benefit plans (as defined in Section
3(1) of ERISA) is not in excess of $200,000. No written notice of liability
has been received with respect to the Borrower, any of its Subsidiaries, or any
Plan for any "prohibited transaction" (within the meaning of Section 4975 of
the IRC or Section 406 of ERISA), nor has any such prohibited transaction
resulting in material liability to the Borrower or any of its Subsidiaries
occurred. Neither the Borrower nor any Subsidiary or Commonly Controlled
Entity will, as a result of consummating the transactions contemplated by this
Agreement (pursuant to the provisions of the Agreement, by operation of law or
otherwise) (i) have incurred or become liable for any tax assessed by the
Internal Revenue Service for any alleged violations of Section 4975 of the IRC
or any civil penalty imposed by the Department of Labor for any alleged
violations of Section 406 of ERISA, (ii) have caused or permitted to occur any
"prohibited transaction" within the meaning of such Section 4975 of the IRC or
Section 406 of ERISA with respect to any Plan for which no exemption is
available or (iii) have incurred any liability to the PBGC (other than ordinary
and usual PBGC premium liability) or any liability for complete or partial
withdrawal to any Multiemployer Plan. Neither the Holding Company, the
Borrower nor any Subsidiary is subject (directly or indirectly) to, and no
facts exist which could subject the Holding Company, the Borrower or any
Subsidiary (directly or indirectly) to, any other liability, penalty, tax or
lien whatsoever, which could result in a Material Adverse Change and which is
directly or indirectly related to any Plan, including, but not limited to,
liability for any damages or penalties arising under Title I or Title IV of
ERISA, liability for any tax or penalty resulting from a loss of deduction
under Section 404 or 419 of the IRC, any tax or penalty under chapter 43 of the
IRC, or any taxes or penalties under any other applicable law, but excluding
any liability to make contributions or pay premiums to or under an ongoing Plan
before the last due date on which such contributions or premiums could be paid
or made without penalty or to pay benefits when due in accordance with Plan
terms.
SECTION 5.12. Labor Controversies. Except as disclosed in
Item 9 (Labor Controversies) of the Disclosure Schedule, there are no labor
controversies pending or, to the best knowledge of the Borrower, threatened,
relating to the Borrower or any Subsidiary. There is (i) no unfair labor
practice complaint pending against the Borrower, or any of its Subsidiaries or,
to the best knowledge of the Borrower, threatened against any of them, before
the National Labor Relations Board, and no arbitration proceeding arising out
of or under any collective bargaining agreement or the Borrower's internal
grievance procedures is so pending against the Borrower or any of its
Subsidiaries or, to the best knowledge of the Borrower, threatened against any
of them, (ii) no strike, labor dispute, slowdown or stoppage is pending against
the Borrower or any of its Subsidiaries or, to the best knowledge of the
Borrower, threatened against the Borrower or any of its Subsidiaries
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and (iii) no union representation question existing with respect to the
employees of the Borrower or any of its Subsidiaries. Each of the Borrower and
its Subsidiaries is in compliance in all material respects with all collective
bargaining agreements to which it is subject.
SECTION 5.13. Ownership of Properties; Collateral. (a)
Each of the Borrower and its Subsidiaries owns good title to all of its
material personal properties and assets of any nature whatsoever, free and
clear of all Liens except as permitted pursuant to Section 6.2.3.
(b) The provisions of the Brunswick Security Agreement
are effective to create in favor of the Agent for the benefit of the Agent and
the Lenders, a legal, valid and enforceable security interest in all right,
title and interest of the Loan Parties in the Collateral described therein,
and, upon the filing of the Financing Statements and any required filing in
the United States Patent and Trademark Office pursuant to Section 4.1.8, the
Security Documents will create a fully perfected first Lien on, and the
security interest in, all right, title and interest of the Loan Parties in all
of the Collateral described therein, to the extent that a security interest
therein can be perfected by such a filing, subject to no other Liens other than
Liens permitted by Section 6.2.3.
SECTION 5.14. Intellectual Property. Each of the Borrower
and its Subsidiaries owns or licenses all such Intellectual Property, and has
obtained assignments of all licenses and other rights, as the Borrower
considers necessary for or as are otherwise material to the conduct of the
business of the Borrower and its Subsidiaries as now conducted without,
individually or in the aggregate, any infringement upon rights of other Persons
which could result in a Material Adverse Change. All Intellectual Property
owned or licensed from third Persons described in this Section 5.14 is set
forth in Item 10 (Intellectual Property) of the Disclosure Schedule.
SECTION 5.15. Accuracy of Information. All factual
information heretofore or contemporaneously furnished by or on behalf of the
Borrower in writing to the Agent or any Lender for purposes of or in connection
with this Agreement or any transaction contemplated hereby is true and accurate
in every material respect on the date as of which such information is dated or
certified and as of the date of execution and delivery of this Agreement by the
Agent or such Lender and such information is not incomplete by omitting to
state any material fact necessary to make such information not misleading.
Neither this Agreement nor any document or statement furnished to the Agent or
any of the Lenders by or on behalf of the Borrower contains any untrue
statement of a material fact or omits to state any material fact necessary in
order to make the statements contained herein or therein not materially
misleading. The Agent and the Lenders recognize that the Projections are not
to be viewed as facts and that actual results during the period or periods
covered by the Projections may differ from the projected or forecasted results.
SECTION 5.16. Insurance. All policies of insurance in
effect of any kind or nature owned by or issued to the Borrower and its
Subsidiaries, including policies of life, fire, theft, product liability,
public liability, property damage, other casualty, employee fidelity, workers'
compensation, property and liability insurance, (a) are listed in Item 11
(Insurance) of the Disclosure Schedule as of the Closing Date, (b) are,
together with all policies of employee health and welfare and
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title insurance, in full force and effect, (c) comply in all respects with the
applicable requirements set forth herein and in the Security Documents and (d)
are of a nature and provide such coverage as is customarily carried by
companies engaged in similar businesses and owning similar properties in the
same general areas in which the Borrower and its Subsidiaries operate. Neither
the Borrower nor any of its Subsidiaries provides any of its insurance through
self-insurance except as disclosed in Item 11 of the Disclosure Schedule.
SECTION 5.17. Certain Indebtedness. Item 12 (Existing
Indebtedness) of the Disclosure Schedule sets forth all Indebtedness of
Brunswick and its Subsidiaries as of the Closing Date, which (a) is for
borrowed money, or (b) is not incurred in the ordinary course of the business
of the Borrower or any Subsidiary in a manner and to the extent consistent with
past practice, or (c) is material to the financial condition, operations,
businesses, properties or prospects of the Borrower or any Subsidiary.
SECTION 5.18. Environmental Matters. Except as disclosed
in Item 13 (Environmental Matters) of the Disclosure Schedule, the Borrower and
each of its Subsidiaries are in compliance in all material respects with all
applicable Environmental Laws, and to the best of the Borrower's knowledge,
there are no conditions or circumstances associated with the currently or
previously owned, operated, used or leased properties or current or past
operations of the Borrower or any Subsidiary which may give rise to
Environmental Liabilities and Costs which could result in a Material Adverse
Change or which may give rise to any Environmental Lien.
SECTION 5.19. No Burdensome Agreements. Neither the
Borrower nor any Subsidiary is a party to or has assumed any indenture, loan or
credit agreement or any lease or other agreement or instrument or subject to
any charter or other corporate restriction that could result in a Material
Adverse Change.
SECTION 5.20. Consents. Except as disclosed in Item 14
(Consents) of the Disclosure Schedule, the Borrower and its Subsidiaries have
all material permits and governmental consents and Regulatory Approvals
necessary under Requirements of Law or, in the reasonable business judgment of
the Borrower, deemed advisable under Requirements of Law, in connection with
the transactions contemplated hereby (including the Acquisition, the Merger and
the Loans) and the ongoing business and operations of the Borrower and its
Subsidiaries.
SECTION 5.21. Contracts. Set forth in Item 15 (Contracts)
of the Disclosure Schedule is an accurate and complete list of all material
Contractual Obligations of the Borrower and its Subsidiaries as of the Closing
Date. Each such material Contractual Obligation is in full force and effect in
accordance with the terms thereof. There are no material defaults by the
Borrower or any Subsidiary or, to the Borrower's knowledge after due inquiry,
any other default in existence under any such material Contractual
Obligations, in each case that could result in a Material Adverse Change.
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SECTION 5.22. Employment Agreements. Set forth in Item 16
(Employment Contracts) of the Disclosure Schedule is a complete and accurate
list of each employment agreement to which the Borrower or any Subsidiary is a
party, or by which it is bound.
SECTION 5.23. Condition of Property. All of the assets and
properties owned by, leased to or used by the Borrower and its Subsidiaries
material to the conduct of their business are in adequate operating condition
and repair, ordinary wear and tear excepted, and are free and clear of known
defects except for defects which do not substantially interfere with the use
thereof in the conduct of normal operations.
SECTION 5.24. Subsidiaries. Item 17 (Subsidiaries) of the
Disclosure Schedule sets forth all Subsidiaries of Brunswick.
SECTION 5.25. Acquisition Agreement. The closing of the
transactions contemplated by the Acquisition Agreement shall occur on the
Closing Date simultaneously with the making of the Bridge Loan, and the
Borrower has not waived or in any way amended, without the prior written
consent of the Agent, any condition to the obligations to consummate the
Acquisition. A true and complete copy of the Acquisition Agreement (including
all exhibits, schedules and amendments thereto) has been delivered to the
Agent. The Borrower is not in default under the Acquisition Agreement or under
any instrument or document to be delivered in connection therewith. The
representations and warranties made in the Acquisition Agreement by the
Borrower and, to the best knowledge of the Borrower, the Estate are true and
correct in all material respects on and as of the Closing Date as though made
on and as of such date.
SECTION 5.26. Trade Relations. There exists no actual or,
to the best of Borrower's knowledge, threatened termination, cancellation or
limitation of, or any modification or change in, the business relationship of
the Borrower with any customer or group of customers of the Borrower.
ARTICLE 6.
COVENANTS
SECTION 6.1. Affirmative Covenants. The Borrower agrees
with each Lender that until all Obligations (other than Obligations that
expressly survive the termination of this Agreement pursuant to Section 9.5)
have been paid and performed in full and the Commitments have terminated, the
Borrower will perform the Obligations set forth in this Section 6.1; provided,
however, that to the extent that prior to the Merger Consummation Date any of
the Obligations of Brunswick set forth in this Section 6.1 relate to STI and
its Subsidiaries, Brunswick's obligation to cause STI or such Subsidiary to
perform any act or to refrain from performing any act shall be subject to
Brunswick's fiduciary duties to the other shareholders of STI.
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SECTION 6.1.1. Financial Information, etc. The Borrower
will furnish, or will cause to be furnished, to each Lender and to the Agent
copies of its financial statements, reports and information:
(a) (i) promptly when available and in any event within
ninety (90) days after the close of each Fiscal Year, a consolidated
and consolidating balance sheet at the close of such Fiscal Year, and
related consolidated and consolidating statements of operations,
retained earnings, and cash flows for such Fiscal Year, of the
Borrower and its Subsidiaries (with comparable information at the
close of and for the prior Fiscal Year), certified (in the case of
consolidated statements) without qualification by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
L.L.P., Price Waterhouse LLP or other independent public accountants
satisfactory to the Agent, together with a report containing
management's discussion and analysis of the financial condition and
results of operation of the Borrower and its Subsidiaries (the
delivery by the Borrower to the Agent of the Borrower's annual report
on Form 10-K filed under the Securities Exchange Act of 1934, as
amended, shall satisfy the requirements of this clause (a)(i));
(ii) promptly when available and in any event within
ninety (90) days after the close of each Fiscal Year, a letter report
of such independent public accountants at the close of such Fiscal
Year to the effect that it has reviewed the provisions of this
Agreement and the most recent Compliance Certificate being furnished
pursuant to clause (a)(iii) of this Section 6.1.1 and that, in the
course of performing its duties it did not become aware of any Default
or Event of Default or any miscalculation in such Compliance
Certificate relating to the financial tests set forth in Section 6.2.4
or relating to the calculation of Excess Cash Flow, except as such may
be disclosed in such statement; and
(iii) promptly when available and in any event within
ninety (90) days after the close of each Fiscal Year, a Compliance
Certificate calculated as of the computation date at the close of such
Fiscal Year; and
(b) promptly when available and in any event within
forty-five (45) days after the close of each Fiscal Quarter, consolidated and
consolidating balance sheets at the close of such Fiscal Quarter, and
consolidated and consolidating statements of operations, retained earnings, and
cash flows for such Fiscal Quarter and for the period commencing at the close
of the previous Fiscal Year and ending with the close of such Fiscal Quarter,
of the Borrower and its Subsidiaries (with comparable information at the close
of and for the corresponding Fiscal Quarter of the prior Fiscal Year and for
the corresponding portion of such prior Fiscal Year), certified by the chief
executive or financial officer of the Borrower, together with a brief report
containing management's discussion and analysis of the financial condition and
results of operations of the Borrower and its Subsidiaries (including a
discussion and analysis of any changes compared to prior results) (the delivery
by the Borrower of its quarterly report with respect to any Fiscal Quarter on
Form 10-Q filed under the Securities Exchange Act of 1934, as amended, shall
satisfy the requirements of this clause (b) with respect to such Fiscal
Quarter) (subject to normal recurring year end adjustments);
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(c) promptly when available and in any event within
thirty (30) days after the close of each calendar month of each Fiscal Year
(other than a calendar month that is the last month of a Fiscal Quarter),
consolidated and consolidating balance sheets at the close of such month, and
consolidated and consolidating statements of operations, retained earnings, and
cash flows for such month and for the period commencing at the close of the
previous Fiscal Year and ending with the close of such month, of the Borrower
and its Subsidiaries (with comparable information at the close of and for the
corresponding month of the prior Fiscal Year and for the corresponding portion
of such prior Fiscal Year), certified by the chief executive or financial
officer of the Borrower, together with a brief report containing management's
discussion and analysis of the financial condition and results of operations of
the Borrower and its Subsidiaries (including a discussion and analysis of any
changes compared to prior results);
(d) promptly upon preparation of any update to the
business plan described in clause (g) of this Section 6.1.1 for the remaining
term of Borrower's then current Fiscal Year as in the Borrower's reasonable
judgment is required, a copy of such update; and
(e) within forty-five (45) days after the close of each
Fiscal Quarter, a Compliance Certificate calculated as of the close of such
Fiscal Quarter;
(f) promptly upon receipt thereof, copies of all detailed
financial and management reports submitted to the Borrower by its independent
public accountants in connection with each annual or interim audit made by such
independent public accountants of the books of the Borrower or any Subsidiary;
(g) within ten (10) days prior to the end of each Fiscal
Year of the Borrower, (i) a business plan of the Borrower and its Subsidiaries,
in form, scope and detail satisfactory to the Agent, and (ii) consolidated and
consolidating operating budgets for the twelve (12) months following the end of
such Fiscal Year, prepared on a monthly basis, and for each Fiscal Year
thereafter through the 2001 Fiscal Year, prepared on an annual basis, which
budgets shall include estimated capital expenditures and other costs to be
incurred by the Borrower and its Subsidiaries, on a consolidated and
consolidating basis, during the applicable Fiscal Year, in each case, with
accompanying detail, together with a report containing management's discussion
and analysis of the projected financial condition and results of operations of
the Borrower and its Subsidiaries;
(h) promptly after approved by the Borrower's Board of
Directors, any updates or revisions to any business plan described in clause
(g) of this Section 6.1.1, in addition to those described in clause (d) of this
Section 6.1.1;
(i) promptly upon the sending or filing thereof, copies
of all reports that the Borrower sends to its security holders generally, and
copies of all reports and registration statements that the Borrower or any of
its Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange; and
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(j) such other information with respect to the financial
condition, business, property, assets, revenues and operations of the Borrower
and any Subsidiary as the Agent or the Required Lenders may from time to time
reasonably request.
SECTION 6.1.2. Maintenance of Corporate Existence, etc.
Except as permitted by Section 6.2.10, the Borrower will cause to be done at
all times all things necessary to maintain and preserve the corporate existence
of the Borrower and each Subsidiary (other than the Inactive Subsidiaries).
SECTION 6.1.3. Foreign Qualification. The Borrower will,
and will cause each Subsidiary to, cause to be done at all times all things
necessary to be duly qualified to do business and be in good standing as a
foreign corporation in each jurisdiction where the failure to so qualify could
result in a Material Adverse Change.
SECTION 6.1.4. Payment of Taxes, etc. The Borrower will,
and will cause each Subsidiary to, pay and discharge, as the same become due
and payable, (a) all Charges against it or on any of its property, as well as
claims of any kind which, if unpaid, might become a Lien upon any one of its
properties, and (b) all lawful claims for labor, materials, supplies, services
or otherwise before any thereof become a default; provided, however, that the
foregoing shall not require the Borrower or any Subsidiary to pay or discharge
any such Charge or claim so long as it shall be diligently contesting the
validity thereof in good faith by appropriate proceedings and shall have set
aside on its books adequate reserves in accordance with GAAP.
SECTION 6.1.5. Insurance. In addition to any insurance
required to be maintained pursuant to any other Loan Document, the Borrower
will, and (with respect to the insurance described in clauses (a) and (b)
below) will cause each Subsidiary to, maintain or cause to be maintained:
(a) insurance with respect to its properties and business
against such casualties, contingencies and liabilities (including, without
limitation, in the case of STI, business interruption insurance) and of such
types and in such amounts as are customary in the industries in which the
Borrower and Subsidiaries are engaged, and will furnish to the Agent annual
certification from the respective insurers (or their authorized agents) of the
extent of all insurance maintained by the Borrower and its Subsidiaries in
accordance with this Section 6.1.5; and
(b) the "key-man" life insurance policy referred to in
Section 4.1.12, which policy shall at all times have a minimum face value of
not less than $500,000 in the aggregate.
Each such policy shall be issued by an insurance company with a Best's rating
of "A" or better and a financial size category of not less than XII shall be in
effect on the Closing Date. The premiums for each such policy shall be paid as
such premiums shall come due. All policies of casualty insurance shall contain
an endorsement, in the form submitted to the Borrower by the Agent, showing
loss payable to the Agent, for its benefit and the ratable benefit of the
Lenders, as their interests may
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appear. All policies of liability insurance, including, without limitation,
all primary and umbrella liability policies, shall name the Agent, for its
benefit and the ratable benefit of the Lenders, as additional insured. All
such insurance policies shall provide, or shall be properly endorsed to
provide, that the insurer shall give the Agent not less than 10 days prior
written notice of any cancellation or non-renewal of any such policy. The
Borrower shall retain all the incidents of ownership of the insurance
maintained pursuant to this Section 6.1.5, but shall not borrow upon or
otherwise impair its right to receive the proceeds of such insurance. So long
as no Event of Default has occurred and is continuing, the Borrower and its
Subsidiaries shall have the right to use the proceeds of casualty insurance to
repair or replace damaged or destroyed property, shall have the right to use
the proceeds of business interruption insurance for its ongoing business needs
and shall have the right to use the proceeds of liability insurance to pay
covered claims.
SECTION 6.1.6. Notice of Default, Litigation, etc. Upon a
Responsible Officer learning thereof, the Borrower will give prompt written
notice (with a description in reasonable detail) to the Agent of:
(a) the occurrence of any Default;
(b) the occurrence of any litigation, arbitration or
governmental investigation or proceeding not previously disclosed in writing by
the Borrower to the Lenders which has been instituted or, to the knowledge of
the Borrower, is threatened against, the Borrower or any Subsidiary or to which
any of its properties, assets or revenues is subject which, if adversely
determined, could result in a Material Adverse Change;
(c) any material development which shall occur in any
litigation, arbitration or governmental investigation or proceeding previously
disclosed by the Borrower to the Lenders pursuant to Section 5.7 which renders
such litigation, arbitration or governmental investigation likely to be
adversely determined and, if adversely determined, could result in a Material
Adverse Change;
(d) the occurrence of any other circumstance which could
result in a Material Adverse Change;
(e) the occurrence of any Loss; and
(f) (i) the occurrence or expected occurrence of any
Reportable Event with respect to any Single Employer Plan, or any withdrawal
from, or the termination, Plan Reorganization or ERISA Insolvency of any
Multiemployer Pension Plan, (ii) the institution of proceedings or the taking
of any other action by the PBGC or the Borrower or any Commonly Controlled
Entity or Subsidiary or any Multiemployer Pension Plan with respect to the
withdrawal from, or the termination, Plan Reorganization or ERISA Insolvency
of, any Single Employer Plan or Multiemployer Pension Plan, or the receipt of
notice by the Borrower or any Commonly Controlled Entity or Subsidiary that the
institution of any such proceedings or the taking of any such action is under
consideration or anticipated, (iii) the institution of any proceedings or other
action by the
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Internal Revenue Service or the Department of Labor with respect to the minimum
funding requirements of any Pension Plan, or the receipt of notice by the
Borrower or any Commonly Controlled Entity or Subsidiary that the institution
of any such proceedings or the taking of any such action is under consideration
or anticipated, (iv) the occurrence or expected occurrence of any event which
could result in the incurrence of unpredictable contingent event benefits under
Section 302 of ERISA or Section 412 of the IRC with respect to any Pension
Plan, (v) any event or condition which could increase the liability of the
Borrower or any Commonly Controlled Entity or Subsidiary with respect to
post-retirement welfare benefits under any Plan, or (vi) the occurrence of any
other event or condition with respect to any Plan which could subject the
Borrower or any Subsidiary (directly or indirectly) to any tax, penalty or
liability under Title I or Title IV of ERISA, Section 404 or 419 and Chapter 43
of the IRC, or any other applicable laws, and in each case in clauses (i)
through (vi) above, such event or condition, together with all other events or
conditions, if any, could subject the Borrower or any Subsidiary (directly or
indirectly) to any tax, fine, penalty, or other liabilities in amounts which in
the aggregate could result in a Material Adverse Change. Upon the request of
the Agent, the Borrower will deliver to each of the Lenders a true and complete
copy of each annual report (Form 5500) of each Plan (other than a
Multi-Employer Plan) required to be filed with the Internal Revenue Service,
promptly after the filing thereof; and
(g) the condemnation or threat of condemnation with
respect to any property used or necessary in the conduct of the businesses of
the Borrower or any of its Subsidiaries.
SECTION 6.1.7. Books and Records. The Borrower will, and
will cause each Subsidiary to, keep books and records reflecting all of its
business affairs and transactions in accordance with GAAP and, subject to any
government security limitations, permit the Agent and each Lender or any of
their respective representatives upon one Business Day's notice, during normal
business hours, to visit all of its offices, to discuss its financial matters
with its officers and independent public accountants and to examine (and, at
the expense of the Borrower, photocopy extracts from) any of its books or other
corporate records. The Borrower shall pay any fees of its independent public
accountants incurred in connection with the Agent's or any Lender's exercise of
its rights pursuant to this Section 6.1.7; provided that unless an Event of
Default shall have occurred and be continuing, the Borrower shall be required
to pay any such fees only in respect of the Agent's exercise of its rights
pursuant to this Section 6.1.7 for one occasion during each Fiscal Year. On or
prior to the Closing Date (and upon consummation of the Merger) the Borrower
will deliver a letter to its independent public accountants authorizing such
public accountants to discuss the Borrower's financial matters with the Agent
and each Lender or any of their respective representatives whether or not a
representative of the Borrower is present; provided that the Borrower shall
have been given prior notice and an opportunity to be present.
SECTION 6.1.8. Maintenance of Properties, Etc. The Borrower
will maintain and preserve, and cause each of its Subsidiaries to maintain and
preserve, all of its properties (real and personal and including all intangible
assets), except obsolete properties, which are used or necessary in the conduct
of its business in good working order and condition, ordinary wear and tear
excepted.
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SECTION 6.1.9. Maintenance of Licenses and Permits. The
Borrower will maintain and preserve, and will cause each of its Subsidiaries to
maintain and preserve, all Intellectual Property, rights, permits, licenses,
Regulatory Approvals and privileges issued under or arising under any
Requirements of Law to the extent material to the conduct of the business of
the Borrower or any of its Subsidiaries.
SECTION 6.1.10. Employee Plans. The Borrower will at all
times comply in all material respects with the provisions of ERISA and the IRC
which are applicable to any of the Plans, and cause each of its Subsidiaries so
to do.
SECTION 6.1.11. Environmental Management. The Borrower will
adopt and maintain prudent solid and hazardous waste management and disposal
practices, including at a minimum such practices as are required or dictated
from time to time by current and future Environmental Laws and Environmental
Permits.
SECTION 6.1.12. Compliance with Laws. The Borrower will, and
will cause each Subsidiary to, comply with all applicable Requirements of Law;
provided, however, that this Section 6.1.12 shall not apply to any circumstance
of noncompliance that together with all other noncompliance could not result in
a Material Adverse Change.
SECTION 6.1.13. Interest Rate Protection. Within 90 days
after the Merger Consummation Date, the Borrower shall obtain and thereafter
maintain in full force and effect, from ING or an Eligible Lending Institution,
one or more Interest Rate Contracts, protecting the Borrower against increases
in the Eurodollar Rate for an aggregate notional amount equal to 50% of the
aggregate principal amount of the Term Loan for a term of five (5) years. ING
shall make available to the Borrower various proposals for Interest Rate
Contracts. Should the Borrower obtain any proposal for Interest Rate Contracts
from a source other than ING, the Borrower agrees that ING shall have a right
to provide such Interest Rate Contracts on the same terms as those set forth in
such proposal. The Borrower will collaterally assign such Interest Rate
Contracts to the Agent, for its benefit and the ratable benefit of the Lenders,
pursuant to documentation acceptable to the Agent.
SECTION 6.1.14. Real Estate. If the Borrower shall acquire a
fee interest in real estate which the Agent reasonably designates as material
to the Borrower or a leasehold interest in real estate with respect to which
the Borrower shall have made substantial tenant improvements or improvements
uniquely configured for the Borrower's business requirements, in either case,
at any time prior to the date on which all Commitments have terminated and all
Obligations under this Agreement have been paid in full, the Borrower will
execute a Mortgage subject only to the Liens described in clauses (c) and (h)
of Section 6.2.3, in form and substance satisfactory to the Agent, in favor of
the Agent, for its benefit and the ratable benefit of the Lenders, and shall
use its reasonable efforts to deliver to the Agent such title insurance
policies, surveys and landlords' estoppel agreements with respect thereto as
the Agent shall reasonably request.
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SECTION 6.1.15. Merger of Brunswick into STI. Brunswick
shall use its best efforts to merge with and into STI, with STI being the
surviving corporation, to cause STI to take any action required to be taken in
order that the conditions set forth in Sections 4.2 and 4.3 are satisfied on or
prior to the Stated Maturity Date for the Bridge Loan, and to cause STI to
refrain from taking any action if the result of such action would be to prevent
any conditions set forth in Section 4.2 or 4.3 from being met on or prior to
the Maturity Date for the Bridge Loan or at any time thereafter.
SECTION 6.1.16. Cash Reserve Account. The Borrower agrees to
establish the Cash Reserve Account for the benefit of the Agent. The Borrower
hereby irrevocably authorizes the Agent to withdraw funds from the Cash Reserve
Account at any time that accrued and unpaid interest with respect to the Bridge
Loan has become due and payable and to apply such funds to the payment of such
interest.
SECTION 6.1.17. Private Placements. The Borrower hereby
grants to ING a right of first refusal for a period of one year following the
Closing Date to manage and serve as placement agent, on an exclusive basis, in
assisting the Borrower in any private placement of debt securities. In the
event that the Borrower desires to issue through a private placement debt
securities to institutional investors, the Borrower shall, prior to entering
into any agreement with any other party in connection with such issuance, give
notice to ING of the terms of such issuance. ING shall have the right to
manage and serve as placement agent, on an exclusive basis, in connection with
such private placement of debt securities on terms that are at least as
favorable to the Borrower as the terms of any proposal made by any other party.
Once ING has exercised its rights to manage and serve as placement agent, the
Borrower agrees that it shall use its best efforts to assist ING in its efforts
to place such debt securities on the Borrower's behalf.
SECTION 6.2. Negative Covenants. The Borrower agrees with
each Lender that until all Commitments have terminated and all Obligations
(other than Obligations that expressly survive the termination of this
Agreement pursuant to Section 9.5) have been paid and performed in full, the
Borrower will perform the Obligations set forth in this Section 6.2. provided,
however, that to the extent that prior to the Merger Consummation Date any of
the Obligations of Brunswick set forth in this Section 6.1 relate to STI and
its Subsidiaries, Brunswick's obligation to cause STI or such Subsidiary to
perform any act or to refrain from performing any act shall be subject to
Brunswick's fiduciary duties to the other shareholders of STI.
SECTION 6.2.1. Business Activities. The Borrower will not,
and will not permit any Subsidiary to, engage in any business activity, except
those in the fields in which the Borrower and its Subsidiaries are engaged on
the Closing Date and such activities as may be incidental or related thereto.
SECTION 6.2.2. Indebtedness. The Borrower will not, and
will not permit any Subsidiary to, create, incur, assume or suffer to exist or
otherwise become or be liable in respect of any Indebtedness other than:
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(a) Indebtedness in respect of the Loans and other
Obligations;
(b) Indebtedness in respect of the Interest Rate
Contracts required pursuant to Section 6.1.13 to the extent such do not
constitute Obligations;
(c) obligations that constitute Indebtedness solely by
virtue of being secured by Liens permitted under Section 6.2.3;
(d) Indebtedness in respect of liabilities resulting from
(i) endorsements of negotiable instruments in the ordinary course of business;
and (ii) surety bonds and other bonds issued for the Borrower's account in the
ordinary course of business;
(e) Indebtedness of Brunswick and its Subsidiaries
existing on the Closing Date and set forth in Item 12 (Existing Indebtedness)
of the Disclosure Schedule, excluding, however, from and after the Merger
Consummation Date (i) Indebtedness owed to Syntex Laboratories, Inc. unless
prior to the Merger Consummation Date, Syntex Laboratories, Inc. expressly
agrees, in form and substance satisfactory to the Agent, that (A) the Agent may
be granted a lien on the property subject to a lien in favor of Syntex
Laboratories, Inc. and (B) Syntex Laboratories, Inc. enters into an
intercreditor agreement, in form and substance satisfactory to the Agent,
pursuant to which Syntex Laboratories, Inc. will agree, among other things, to
give the Agent notice of any default under such Indebtedness and, upon request
by any Lender, to sell such Indebtedness to such Lender for the principal
amount then outstanding, plus accrued and unpaid interest, but without premium
or penalty, and (ii) such Indebtedness set forth in Item 3 (Indebtedness of STI
to be Refinanced) of the Disclosure Schedule.
(f) Indebtedness of any Subsidiary (other than an
Inactive Subsidiary) owing to the Borrower, provided that such Indebtedness is
evidenced by a demand promissory note that is pledged to the Agent, for its
benefit and the benefit of the Lenders, as security for the Obligations
pursuant to the Pledge Agreement;
(g) Capitalized Lease Liabilities incurred after the
Closing Date; provided that (i) the aggregate amount of such Capitalized Lease
Liabilities incurred by the Borrower and its Subsidiaries during any Fiscal
Year which in accordance with GAAP is attributable to principal, together with
the aggregate principal amount of all Purchase Money Indebtedness of the
Borrower and its Subsidiaries incurred during such Fiscal Year, does not exceed
$1,000,000, (ii) payments under each capitalized lease giving rise to such
Capitalized Lease Liabilities shall be made in equal periodic installments,
(iii) the original term of each capitalized lease giving rise to such
Capitalized Lease Liabilities shall not be less than seventy-five percent (75%)
of the useful life of the item of property for which such Capitalized Lease
Liabilities are incurred and (iv) the Consolidated Capital Expenditures
financed by such Capitalized Lease Liabilities are not prohibited under Section
6.2.5;
(h) Purchase Money Indebtedness incurred after the
Closing Date; provided that (i) the aggregate amount of such Indebtedness
incurred by the Borrower and its Subsidiaries during
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any Fiscal Year, together with the aggregate amount of any Capitalized Lease
Liabilities of the Borrower and its Subsidiaries incurred during such Fiscal
Year that in accordance with GAAP is attributable to principal, does not exceed
$1,000,000, (ii) such Indebtedness provides for the payment of principal in
equal periodic installments, (iii) each issue of such Purchase Money
Indebtedness shall have an original term that is not less than seventy-five
(75%) of the useful life of the item of property for which such Purchase Money
Indebtedness is incurred, and (iv) the Consolidated Capital Expenditures
financed by such Purchase Money Indebtedness are not prohibited under Section
6.2.5;
(i) Indebtedness evidenced by the Estate Subordinated
Note;
(j) Indebtedness evidenced by the Junior Subordinated
Note;
(k) extensions, refinancings, replacements and renewals
of any of the foregoing Indebtedness described in clause (e) (other than
Capitalized Lease Liabilities) and clause (i) of this Section 6.2.2; provided
that the principal amount thereof is not increased, such extension,
refinancing, replacement or renewal does not impose more burdensome terms upon
the Borrower or its Subsidiaries, as the case may be, than the Indebtedness
being extended, refinanced, replaced or renewed and, in the case of any
Indebtedness that constitutes an extension, refinancing, replacement or renewal
of the Estate Subordinated Note, such Indebtedness does not have a stated final
maturity that is earlier than the Stated Maturity Date for the Term Loan, such
Indebtedness does not require any principal amortization and such Indebtedness
otherwise is subordinated in right of payment to the prior payment of "Senior
Debt" (as such term is defined in the Estate Subordinated Note as in effect on
the Closing Date) to the same extent and in the same manner as the Estate
Subordinated Note.
SECTION 6.2.3. Liens. The Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or suffer to exist any Lien
upon any of its property, revenues or assets, whether now owned or hereafter
acquired, except:
(a) Liens in favor of the Agent or the Lenders granted
pursuant to any Loan Document;
(b) Liens identified in Item 19 of the Disclosure
Schedule, excluding, however, from and after the Merger Consummation Date, (i)
Liens in favor of First Pennsylvania Bank, which the Borrower agrees to have
promptly terminated after the Closing Date, and (ii) Liens in favor of ▇▇▇▇▇▇▇
▇▇▇▇▇ Business Financial Services, Inc.;
(c) Liens for taxes, assessments or other governmental
charges or levies not at the time delinquent or thereafter payable with penalty
or being contested in good faith by appropriate proceedings and for which
adequate reserves in accordance with GAAP shall have been set aside on its
books;
(d) Liens of carriers, warehousemen, mechanics, and
materialmen incurred in the ordinary course of business for sums not overdue or
being contested in good faith by appropriate
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proceedings (which proceedings have the effect of preventing the forfeiture or
sale of the asset subject to such Lien) and for which adequate reserves shall
have been set aside on its books;
(e) Liens (other than Liens arising under ERISA or
Section 412(n) of the Code) incurred in the ordinary course of business in
connection with workmen's compensation, unemployment insurance or other forms
of governmental insurance or benefits, or to secure performance of tenders,
statutory obligations, leases and contracts (other than for borrowed money)
entered into in the ordinary course of business or to secure obligations on
surety or appeal bonds;
(f) judgment Liens with respect to judgments to the
extent such judgments do not constitute an Event of Default described in
Section 7.1.9;
(g) Liens which arise by operation of law under Article 2
of the UCC in favor of unpaid sellers of goods, or liens in items or any
accompanying documents or proceeds of either arising by operation of law under
Article 4 of the UCC in favor of a collecting bank;
(h) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants,
consents, reservations, encroachments, variations and other restrictions,
charges or encumbrances (whether or not recorded) affecting the use of
property, which do not materially detract from the value of such property or
impair the use thereof;
(i) Liens upon any equipment acquired by the Borrower or
any of its Subsidiaries after the Closing Date to secure Indebtedness permitted
under clause (h) of Section 6.2.2 or arising by virtue of a capital lease
permitted under clause (g) of Section 6.2.2;
(j) Leases and subleases granted to others in the
ordinary course of business not interfering in any material respect with any
business of the Borrower or any of its Subsidiaries;
(k) Liens which constitute rights of set-off of a
customary nature or bankers' liens with respect to amounts on deposit, whether
arising by operation of law or by contract, in connection with arrangements
entered into with banks in the ordinary course of business; and
(l) Liens consisting of precautionary UCC-1 filings in
respect of operating leases to the extent permitted under Section 6.2.6;
(m) the Lien on the STI Shares in favor of the Estate to
the extent arising pursuant to the Estate Stock Pledge Agreement, and
subordinated to the Lien of the Agent in the STI shares on the terms and
conditions set forth therein; and
(n) extensions, renewals or replacements of any Lien
referred to in clause (b) of this Section 6.2.3, other than any Lien granted to
Syntex Laboratories, Inc., provided that the principal amount of the obligation
secured thereby is not increased and that any such extension, renewal or
replacement is limited to the property originally encumbered thereby.
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SECTION 6.2.4. Financial Condition. From and after the
Merger Consummation Date, the Borrower hereby covenants and agrees as set forth
below:
(a) Senior Debt Leverage Ratio. The Borrower will not
permit its Senior Debt Leverage Ratio with respect to the twelve-month period
ending on the last day of any Fiscal Quarter to be greater than the ratio set
forth opposite such Fiscal Quarter (for each Fiscal Quarter ending prior to the
first anniversary of the Merger Consummation Date, such ratio to be calculated
as provided in clause (g) of this Section 6.2.4):
Fiscal Quarter Ending: Ratio
---------------------- -----
October 31, 1996 3.2:1.0
January 31, 1997 2.8:1.0
April 30, 1997 2.5:1.0
July 31, 1997 2.1:1.0
October 31, 1997 1.8:1.0
January 31, 1998 1.5:1.0
April 30, 1998 1.3:1.0
July 31, 1998 1.1:1.0
October 31, 1998 1.0:1.0
January 31, 1999 0.9:1.0
April 30, 1999 0.8:1.0
July 31, 1999 and thereafter 0.7:1.0
(b) Total Debt Leverage Ratio. The Borrower will not
permit its Total Debt Leverage Ratio with respect to the twelve-month period
ending on the last day of any Fiscal Quarter to be greater than the ratio set
forth opposite such Fiscal Quarter (for each Fiscal Quarter ending prior to the
first anniversary of the Merger Consummation Date, to be calculated as provided
in clause (g) of this Section 6.2.4):
Fiscal Quarter Ending: Ratio
---------------------- -----
October 31, 1996 5.0:1.0
January 31, 1997 4.5:1.0
April 30, 1997 3.6:1.0
July 31, 1997 3.0:1.0
October 31, 1997 2.7:1.0
January 31, 1998 2.3:1.0
April 30, 1998 2.0:1.0
July 31, 1998 1.7:1.0
October 31, 1998 1.6:1.0
January 31, 1999 1.4:1.0
April 30, 1999 1.3:1.0
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July 31, 1999 and thereafter 1.2:1.0
(c) Senior Debt Service Ratio. The Borrower will not
permit its Senior Debt Service Ratio with respect to the twelve-month period
ending on the last day of any Fiscal Quarter to be less than the ratio set
forth below opposite such Fiscal Quarter (for each Fiscal Quarter ending prior
to the first anniversary of the Merger Consummation Date, such ratio to be
calculated as provided in clause (g) of this Section 6.2.4):
Fiscal Quarter Ending: Ratio
---------------------- -----
October 31, 1996 3.5:1.0
January 31, 1997 3.8:1.0
April 30, 1997 3.9:1.0
July 31, 1997 4.0:1.0
October 31, 1997 3.4:1.0
January 31, 1998 3.1:1.0
April 30, 1998 3.2:1.0
July 31, 1998 3.5:1.0
October 31, 1998 3.7:1.0
January 31, 1999 4.1:1.0
April 30, 1999 4.4:1.0
July 31, 1999 and thereafter 4.8:1.0
(d) Interest Coverage Ratio. The Borrower will not
permit its Interest Coverage Ratio with respect to the twelve-month period
ending on the last day of any Fiscal Quarter to be less than the ratio set
forth below opposite such Fiscal Quarter (for each Fiscal Quarter ending prior
to the first anniversary of the Merger Consummation Date, such ratio to be
calculated as provided in clause (g) of this Section 6.2.4):
Fiscal Quarter Ending: Ratio
---------------------- -----
October 31, 1996 3.0:1.0
January 31, 1997 3.5:1.0
April 30, 1997 4.0:1.0
July 31, 1997 5.0:1.0
October 31, 1997 5.8:1.0
January 31, 1998 6.3:1.0
April 30, 1998 7.3:1.0
July 31, 1998 7.5:1.0
October 31, 1998 7.0:1.0
January 31, 1999 6.9:1.0
April 30, 1999 6.8:1.0
July 31, 1999 and thereafter 7.5:1.0
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(e) Net Worth. The Borrower will not permit its net
worth determined in accordance with GAAP as of the last day of any Fiscal
Quarter, commencing with the Fiscal Quarter ending on July 31, 1996 and
continuing thereafter, to be less than (1) $19,500,000 plus (2) 75% of Net
Income (but not loss) for each Fiscal Quarter ending after July 31, 1996
through and including the last day of the Fiscal Quarter in which this covenant
is being tested; provided, however, that the amount set forth in clause (1)
above shall be reduced by the amount, if any, by which any goodwill resulting
from the Merger is allocated to research and development and is expensed by the
Company on its income statement for the Fiscal Quarter during which the Merger
occurs.
(f) EBITDA. The Borrower will not permit EBITDA for the
twelve-month period ending on the last day of any Fiscal Quarter to be less
than the amount set forth opposite such Fiscal Quarter (for each Fiscal Quarter
ending prior to the first anniversary of the Merger Consummation Date, such
amount to be calculated as provided in clause (g) of this Section 6.2.4):
Fiscal Quarter Ending: Amount
---------------------- -----------
October 31, 1996 $ 5,000,000
January 31, 1997 $ 5,500,000
April 30, 1997 $ 6,500,000
July 31, 1997 $ 8,000,000
October 31, 1997 $ 8,500,000
January 31, 1998 $ 9,000,000
April 30, 1998 $10,000,000
July 31, 1998 $11,500,000
October 31, 1998 $12,000,000
January 31, 1999 $13,000,000
April 30, 1999 $14,000,000
July 31, 1999 and thereafter $15,000,000
(g) Calculations for Stub Periods. Notwithstanding
anything contained herein to the contrary, calculation of all items relating to
income or expense (including, without limitation, EBITDA and Interest Expense)
for any period ending prior to the first anniversary of the Merger Consummation
Date shall be made by annualizing all items relating to income or expense for
the period consisting of the full Fiscal Quarter(s) elapsed from the Merger
Consummation Date to the end of such period and by using the actual scheduled
repayments of Indebtedness occurring during such period.
SECTION 6.2.5. Capital Expenditures. The Borrower will not,
and will not permit any Subsidiary to make or commit to make Consolidated
Capital Expenditures, except that, during any Fiscal Year, the Borrower and its
Subsidiaries may make Consolidated Capital Expenditures (including the amount
of Capitalized Lease Liabilities incurred during such Fiscal Year that in
accordance with GAAP is attributable to principal) which in the aggregate do
not exceed the
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amount set forth below opposite such Fiscal Year (in the case of the 1996
Fiscal Year, for the period commencing on the Closing Date and ending on July
31, 1996):
Fiscal Year: Amount
------------ ----------
1996 $3,500,000
1997 $2,000,000
1998 $2,500,000
1999 $3,000,000
2000 $3,000,000
2001 $3,000,000
provided further, however, that expenditures from insurance proceeds received
upon the occurrence of a Loss which are made to replace or repair damaged or
destroyed assets will not be included in the foregoing calculation.
SECTION 6.2.6. Lease Obligations. The Borrower will not,
and will not permit any Subsidiary to, create or suffer to exist any obligation
for the payment of rent for any property under any operating lease or agreement
to lease having a term of one year or more, except for (a) leases in existence
on the Closing Date and described in Item 20 (Leases) of the Disclosure
Schedule, and (b) any lease of real property entered into by the Borrower or
any Subsidiary after the Closing Date in the ordinary course of business;
provided, however, that no such lease shall subject the Borrower or any
Subsidiary to Environmental Liabilities and Costs and that the aggregate amount
of payments due from the Borrower and its Subsidiaries for all leases referred
to in this Section 6.2.6 during any Fiscal Year set forth below is less than
the amount set forth below opposite such Fiscal Year (in the case of the 1996
Fiscal Year, for the period commencing on the Closing Date and ending on July
31, 1996):
Fiscal Year: Amount
1996 $1,000,000
1997 $1,000,000
1998 $1,250,000
1999 $1,250,000
2000 $1,250,000
2001 $1,250,000
SECTION 6.2.7. Investments. The Borrower will not, and will
not permit any Subsidiary to, make, incur, assume or suffer to exist any
Investment in any other Person except:
(a) Cash Equivalent Investments;
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(b) deposits for utilities, security deposits under
leases and similar prepaid expenses;
(c) accounts receivable arising in the ordinary course of
business;
(d) Investments existing on the Closing Date and disclosed
in Item 21 (Existing Investments) of the Disclosure Schedule;
(e) Investments in the form of Indebtedness made by the
Borrower in its Subsidiaries (other than Inactive Subsidiaries) to the extent
such Investments are evidenced by demand promissory notes in principal amounts
equal to the amount of such Investments, payable to the Borrower and pledged by
the Borrower in favor of the Agent pursuant to the Pledge Agreements;
(f) Investments in the form of equity made by the
Borrower in its Subsidiaries (other than Inactive Subsidiaries) to the extent
permitted under subsection (b) of Section 6.2.10;
(g) Investments (including debt obligations) received in
connection with a bankruptcy or reorganization of customers or suppliers and in
settlement of delinquent obligations of, and other disputes with, customers or
suppliers arising in the ordinary course of business, provided that if such
Investments are evidenced by promissory notes or other instruments, and such
instruments are pledged to the Agent, for its benefit and the benefit of the
Lenders;
(h) Investments arising under Interest Rate Contracts; and
(i) Investments consisting of deposit accounts of the
Borrower and its Subsidiaries maintained in the ordinary course of business.
SECTION 6.2.8. Restricted Payments, etc. The Borrower will
not declare, pay or make any dividend or distribution (in cash, property or
obligations) on any shares of any class of Stock (now or hereafter outstanding)
of the Borrower or on any warrants, options or other rights in respect of any
class of Stock (now or hereafter outstanding) of the Borrower or apply, or
permit any Subsidiary to apply, any of its funds, property or assets to the
purchase, redemption, sinking fund or other retirement of any shares of any
class of Stock (now or hereafter outstanding), of the Borrower or any
Subsidiary, or make any deposit for any of the foregoing; provided, however,
that (i) the Borrower may redeem Series D Preferred Stock from the State of
Maryland in accordance with the terms of the Stock Purchase Agreement between
Brunswick and the State of Maryland as in effect on the Closing Date and (ii)
after the Merger Consummation Date, the Borrower may redeem restricted shares
of Stock from any officer or employee who has purchased such restricted shares
of Stock since the Merger Consummation Date, provided that the Borrower may not
redeem such restricted shares of Stock for more than the purchase price paid by
such officer or employee for such restricted shares of Stock.
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SECTION 6.2.9. Take or Pay Contracts; Sale/Leasebacks. (a)
The Borrower will not, and will not permit any Subsidiary to, enter into or be
a party to any arrangement for the purchase of materials, supplies, other
property or services if such arrangement by its express terms requires that
payment be made by the Borrower or such Subsidiary regardless of whether or not
such materials, supplies, other properties or services are delivered or
furnished to it.
(b) The Borrower will not enter into, or permit any
Subsidiary to enter into, any arrangement with any Person providing for the
leasing by the Borrower or one or more Subsidiaries of any property or assets,
which property or assets has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person except as permitted by Section
6.2.2(g).
SECTION 6.2.10. Consolidation, Merger, Subsidiaries, etc.
(a) The Borrower will not, and will not permit any Subsidiary to, liquidate or
dissolve, consolidate with, or merge into or with, any Person, or purchase or
otherwise acquire all or substantially all of the assets or any Person (or of
any operating division or unit thereof), except that (i) any such Subsidiary
may liquidate or dissolve voluntarily into, and may merge with and into, the
Borrower or any wholly-owned Subsidiary other than an Inactive Subsidiary (so
long as the Borrower or such wholly-owned Subsidiary is the surviving
corporation), and (ii) Brunswick and STI may consummate the Merger provided
that they simultaneously comply with the conditions set forth in Section 4.2
and Section 4.3.
(b) The Borrower will not, and will not permit any
Subsidiary to, create any Subsidiary or transfer any assets to any Subsidiary;
provided, however, that the Borrower or any Subsidiary may create or transfer
assets to any Subsidiary, provided that neither Brunswick nor any Subsidiary
shall transfer more than 20% of its respective assets to Subsidiaries, in the
aggregate and, to the extent any new Subsidiary is created, such Subsidiary
executes and delivers to the Agent, for its benefit and the ratable benefit of
the Lenders, (i) security agreements, collateral assignments, pledge
agreements, UCC financing statements and other documents, all substantially in
the form of the Security Documents executed and delivered as of the Closing
Date, granting to the Agent, for its benefit and the ratable benefit of the
Lenders, Liens on all of its assets subject only to Liens permitted under
Section 6.2.3 and (ii) a guaranty in substantially the form of the Brunswick
Subsidiary Guaranty executed and delivered as of the Closing Date.
SECTION 6.2.11. Asset Dispositions, etc. The Borrower will
not, and will not permit any Subsidiary to, sell, transfer, lease or otherwise
dispose of, or grant options, warrants or other rights with respect to, any of
its assets (including accounts receivable and capital stock of Subsidiaries) to
any Person, unless (a) such disposition is made in the ordinary course of
business and consists of inventories; or (b) such disposition constitutes a
disposition of obsolete or retired assets no longer used in the business of the
Borrower and its Subsidiaries.
SECTION 6.2.12. Modification of Organic Documents, etc. The
Borrower will not consent to any amendment, supplement or other modification of
any of the terms or provisions contained in, or applicable to, the charter or
the by-laws of the Borrower, except for any amendment,
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supplement or other modification which does not adversely affect the Borrower's
ability to pay or perform the Obligations.
SECTION 6.2.13. Transactions with Affiliates. The Borrower
will not, and will not permit any Subsidiary to, enter into, or cause, suffer
or permit to exist:
(a) any arrangement or contract with any of its
Affiliates (other than its Subsidiaries) of a nature customarily entered into
by Persons which are Affiliates of each other (including management or similar
contracts or arrangements relating to the allocation of revenues, expenses or
otherwise) requiring any payments to be made by the Borrower or any
Subsidiaries to any such Affiliate, other than the transactions provided for in
the Loan Documents; and
(b) any other transaction, arrangement or contract with
any of its Affiliates which is on terms which are less favorable than are
obtainable from any Person which is not one of its Affiliates.
SECTION 6.2.14. Inconsistent Agreements. The Borrower will
not, and will not permit any Subsidiary to, enter into any material agreement
containing any provision which would be violated or breached in any material
respect by any Loan or by the performance by the Borrower or any Subsidiary of
its obligations hereunder or under any Loan Document.
SECTION 6.2.15. Change in Accounting Method. The Borrower
will not, and will not permit any Subsidiary to, make any change in accounting
treatment and reporting practices except as required by GAAP.
SECTION 6.2.16. Change in Fiscal Year End. The Borrower will
not change its Fiscal Year end without the Required Lenders' prior written
consent, which consent will not be unreasonably withheld but will not be given
with respect to more than one such change during the term of this Agreement,
except that Brunswick may change its Fiscal Year end to July 31 as a result of
or in contemplation of the Merger.
SECTION 6.2.17. Compliance with ERISA. The Borrower will
not, and will not permit any Subsidiary to take, or fail to take, any action
with respect to a Plan, including establishing, amending, or terminating or
withdrawing from any Plan, without first obtaining the Agent's written consent,
where such action or failure to act could result in any liabilities under the
IRC, ERISA, or any other applicable law which individually or in the aggregate
could result in a Material Adverse Change.
SECTION 6.2.18. Limitation on Restrictions on Subsidiary
Dividends. The Borrower will not, and will not permit any of its Subsidiaries
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction on the ability of any such
Subsidiary to (a) pay dividends or make other distributions on its Stock or
other interests or participations in profits owned by the Borrower or any
Subsidiary of the Borrower or pay any
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Indebtedness owed to the Borrower or any Subsidiary of the Borrower, (b) make
loans or advances to the Borrower or any Subsidiary of the Borrower or (c)
transfer any of its property or assets to the Borrower or any Subsidiary of the
Borrower, except for such encumbrances and restrictions existing under or by
reason of this Agreement and the other Loan Documents.
SECTION 6.2.19. Modification of Certain Documents. The
Borrower shall not amend or modify, or consent to any amendment or modification
of, any of the terms of the Estate Subordinated Note, the Junior Subordinated
Note or the Estate Stock Pledge Agreement, the effect of which is to (i)
increase the principal amount thereof, (ii) increase the interest rate
applicable thereto, or cause any accrued interest thereon to be payable in cash
at any time prior to the second anniversary of the Closing Date, (iii) alter or
in any way modify the subordination provisions thereof (together with any
definitions used therein), (iv) require any amortization of principal or any
prepayment of interest, (v) impose on the Borrower or any of its Subsidiaries
any additional or more burdensome obligations or covenants, (vi) impose on the
Borrower any additional or more burdensome events of default or other events or
conditions the effect of which would be to accelerate, or to permit the
acceleration of, the stated maturity of the Estate Subordinated Note or the
Junior Subordinated Note (or to permit any holder thereof to require the
Borrower to redeem or repurchase the Estate Subordinated Note or the Junior
Subordinated Note) or to allow the Estate (or any successor thereto) to
exercise any remedies under the Estate Stock Pledge Agreement, (vii) modify the
Estate Stock Pledge Agreement in any manner such that the Lien granted pursuant
thereto is not released upon consummation of the Merger, or (viii) adversely
affect any right or interest of the Agent or any Lender.
SECTION 6.2.20. Prohibition on Voluntary Prepayments on
Subordinated Indebtedness. The Borrower will not, and will not permit any of
its Subsidiaries to, make any voluntary or optional payment or prepayment on,
or redemption or acquisition for value of the Estate Subordinated Note, the
Junior Subordinated Note or any Indebtedness incurred to refinance the Estate
Subordinated Note (as permitted pursuant to clause (k) of Section 6.2.2);
provided, however, that the Borrower may repay the Estate Subordinated Note to
the extent such payment is required pursuant to Section 4.1 of the Estate
Subordinated Note as in effect on the Closing Date.
SECTION 6.2.21. Prohibition on Actions Triggering Redemption
of Series D Stock. The Borrower will not relocate its office located in the
State of Maryland on the Closing Date to any location outside the State of
Maryland or take any other action that would permit the State of Maryland to
require the redemption of the Series D Preferred Stock.
ARTICLE 7.
EVENTS OF DEFAULT
SECTION 7.1. Events of Default. The term "Event of
Default" shall mean any of the events set forth in this Section 7.1.
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SECTION 7.1.1. Non-Payment of Obligations. The Borrower
shall default:
(a) in the payment or prepayment when due of any
principal of any Loan;
(b) in the payment when due of the interest payable in
respect of any Loan, the commitment fee provided for in Section 2.4 hereof and
such default shall continue unremedied for a period of five (5) days; or
(c) in the payment when due of any Obligation (other than
an Obligation referenced in clause (a) or (b) of this Section 7.1.1) and such
default shall continue unremedied for a period of five (5) days after a notice
thereof shall have been given to the Borrower by the Agent or any Lender or a
Responsible Officer of the Borrower shall have actual knowledge thereof.
SECTION 7.1.2. Non-Performance of Certain Covenants. The
Borrower shall default in the due performance and observance of any of its
obligations under Section 6.1 and such default shall continue unremedied for a
period of ten (10) days after notice thereof shall have been given to the
Borrower by the Agent (or if such default is not reasonably susceptible to cure
within ten (10) days, such longer period as is reasonably needed to effect such
cure, but in no event longer than thirty (30) days from the date notice is
given, so long as the Borrower promptly commences and diligently pursues such
cure), or shall default in the due performance or observation of any of its
obligations under Section 6.2.
SECTION 7.1.3. Defaults Under Other Loan Documents;
Non-Performance of Other Obligations. Any "Event of Default" shall occur under
the other Loan Documents; or the Borrower or any Subsidiary shall default in
the due performance and observance of any other obligation, covenant or
agreement contained herein or in any other Loan Document and such default shall
continue unremedied for a period of ten (10) days after notice thereof shall
have been given to the Borrower by the Agent (or if such default is not
reasonably susceptible to cure within ten (10) days, such longer period as is
reasonably needed to effect such cure, but in no event longer than thirty (30)
days from the date notice is given, so long as the Borrower promptly commences
and diligently pursues such cure).
SECTION 7.1.4. Bankruptcy, Insolvency, etc. The Borrower or
any Subsidiary shall:
(a) become insolvent or generally fail to pay, or admit
in writing its inability to pay, debts as they become due;
(b) apply for, consent to, or acquiesce in, the
appointment of a trustee, receiver, sequestrator or other custodian for the
Borrower or any Subsidiary or any property of any thereof, or make a general
assignment for the benefit of creditors;
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(c) in the absence of such application, consent or
acquiescence, permit or suffer to exist the appointment of a trustee, receiver,
sequestrator or other custodian for the Borrower or any Subsidiary or for a
substantial part of the property of any thereof, and such trustee, receiver,
sequestrator or other custodian shall not be discharged within sixty (60) days;
(d) permit or suffer to exist the commencement of any
bankruptcy, reorganization, debt arrangement or other case or proceeding under
any bankruptcy or insolvency law, or any dissolution, winding up or liquidation
proceeding, in respect of the Borrower or any Subsidiary, and, if such case or
proceeding is not commenced by the Borrower or such Subsidiary, such case or
proceeding shall be consented to or acquiesced in by Borrower or such
Subsidiary or shall result in the entry of an order for relief or shall remain
for sixty (60) days undismissed; or
(e) take any corporate action authorizing, or in
furtherance of, any of the foregoing.
SECTION 7.1.5. Breach of Warranty. Any representation or
warranty of the Borrower hereunder or in any other Loan Document or in any
other writing furnished by or on behalf of the Borrower to the Agent or any
Lender for the purposes of or in connection with this Agreement or any such
Loan Document is or shall be incorrect when made in any material respect.
SECTION 7.1.6. Default on Other Indebtedness, etc. (a) Any
Indebtedness of the Borrower or any Subsidiary in an aggregate principal amount
exceeding $500,000 (i) shall be duly declared to be or shall become due and
payable prior to the stated maturity thereof (other than as a result of any
mandatory prepayments required under Section 3.3.1 of this Agreement, Section
4.1 of the Estate Subordinated Note or any provision of any instrument
governing any such Indebtedness that provides for the mandatory prepayment
thereof with insurance proceeds or the like as a result of any casualty loss
relating to any property securing such Indebtedness), or (ii) shall not be paid
as and when the same becomes due and payable including any applicable grace
period; or (b) there shall occur and be continuing any event under any
Instrument relating to any Indebtedness of the Borrower or any Subsidiary in an
aggregate principal amount exceeding $500,000, the effect of which is to cause
such Indebtedness to become due prior to its stated maturity or to permit the
holder or holders of such Indebtedness, or a trustee, agent or other
representative on behalf of such holder or holders, to cause such Indebtedness
to become due prior to its stated maturity or to require (or permit the holder
or holders to require) the Borrower or any Subsidiary to redeem, repurchase or
otherwise acquire or retire such Indebtedness for value.
SECTION 7.1.7. Failure of Valid, Perfected Security
Interest. The security interest or Lien in the Collateral and all proceeds
thereof, securing the Obligations shall cease to be valid or perfected at any
time after the Closing Date (other than as a result of (i) the Agent's failure
to make any required filing to the extent the necessity of such filing was
disclosed to the Agent in an opinion of counsel to the Borrower or (ii) the
release of possession of any pledged Instrument delivered to the Agent or its
agent or representative pursuant to any of the Security Documents).
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SECTION 7.1.8. Employee Plans. Any of the following events
shall occur with respect to any Plan: (i) any Person shall engage in any
"prohibited transaction" (as defined in Section 406 of ERISA or Section 4975 of
the Code) involving any Plan, (ii) any "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA) not disclosed in
Item 8 (Benefit Plans) of the Disclosure Schedule, whether or not waived, shall
exist with respect to any Single Employer Plan, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate, any
Single Employer Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is, in the reasonable opinion of the Required Lenders,
likely to result in the termination of such Plan for purposes of Title IV of
ERISA, (iv) a notice of intent to terminate any Single Employer Plan for
purposes of Title IV of ERISA is issued by the plan administrator thereof
without the prior written consent of the Required Lenders, or the PBGC shall
commence proceedings to terminate any Single Employer Plan, (v) the Borrower or
any Commonly Controlled Entity or Subsidiary shall, or in the reasonable
opinion of the Required Lenders is likely to, incur any liability in connection
with a withdrawal from, or the ERISA Insolvency, Plan Reorganization or
termination of, a Multiemployer Plan, (vi) the Borrower or any Commonly
Controlled Entity or Subsidiary shall fail to make any quarterly installment
payment to a Pension Plan required under Section 302(e) of ERISA or Section
412(m) of the Code, (vii) the Borrower or any Commonly Controlled Entity or
Subsidiary shall fail to make any contribution to a Multiemployer Plan which is
required under ERISA, the Code or applicable collective bargaining agreements,
or (viii) any other event or condition shall occur or exist with respect to a
Plan; and in each case in clauses (i) through (viii) above, such event or
condition, together with all other such events or conditions, if any, could
subject the Borrower or any Subsidiary (directly or indirectly) to any tax,
penalty or other liabilities under Title I or Title IV of ERISA, Section 404 or
419 and Chapter 43 of the IRC or any other applicable law which in the
aggregate could result in a Material Adverse Change.
SECTION 7.1.9. Judgments. A final judgment which, with
other such outstanding final judgments against the Borrower and its
Subsidiaries (in each case to the extent not covered by insurance), exceeds an
aggregate of $500,000, shall be entered against the Borrower or any of its
Subsidiaries and, within 30 days after entry thereof, such judgment shall not
have been discharged or execution thereof stayed pending appeal, or, within 30
days after the expiration of any such stay, such judgment shall not have been
discharged or stayed.
SECTION 7.1.10. Cessation of Business; Dissolution. The
entry of any order of a court enjoining, restraining or otherwise preventing
the Borrower or any Subsidiary from conducting all or any material part of its
business affairs; or the cessation of business or dissolution of the Borrower.
SECTION 7.1.11. Subordinated Debt Documents. The Borrower
shall fail to perform, keep or observe any term or provision of, or a default
or other event shall occur or exist under, the Estate Subordinated Note or the
Junior Subordinated Note, or any other event shall have occurred or
circumstance shall exist, in any such case, the effect of which is to
accelerate, or to permit the holder thereof to accelerate, the maturity of the
Estate Subordinated Note or the Junior
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Subordinated Note or to permit the holder thereof to require the Borrower to
redeem the Estate Subordinated Note or the Junior Subordinated Note or any
portion thereof.
SECTION 7.2. Action if Bankruptcy. If any Event of
Default described in clause (d) of Section 7.1.4 shall occur, the outstanding
principal amount of all outstanding Loans and all other Obligations shall
automatically be and become immediately due and payable and all Commitments
shall automatically be terminated, in either case without notice, demand or
presentment.
SECTION 7.3. Action if Other Event of Default. If any
Event of Default (other than any Event of Default described in clause (d) of
Section 7.1.4) shall occur for any reason, whether voluntary or involuntary,
and be continuing, the Agent may, and upon the direction of the Required
Lenders, shall upon notice or demand, declare all or any portion of the
outstanding principal amount of the Loans to be due and payable and any or all
other Obligations to be due and payable and all Commitments to be terminated,
whereupon the full unpaid amount of such Loans and any and all other
Obligations which shall be so declared due and payable shall be and become
immediately due and payable and any and all Commitments which shall be so
declared terminated shall be and become immediately terminated, in each case
without further notice, demand, or presentment, and to the extent any
obligations are paid by the Borrower, they shall constitute a prepayment under
this Agreement.
ARTICLE 8.
THE AGENT
SECTION 8.1. Actions. Each Lender and the holder of each
Note authorize the Agent to act on behalf of such Lender or holder under this
Agreement and any other Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by the Agent
(with respect to which the Agent agrees that it will, subject to the last two
sentences of this Section 8.1, comply, except as otherwise advised by counsel),
to exercise such powers hereunder and thereunder as are specifically delegated
to or required of the Agent by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. Each Lender agrees (which
agreement shall survive any termination of this Agreement) to indemnify the
Agent, pro rata according to such Lender's Percentage, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may at any time be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of this Agreement, the Notes, or any other
Loan Document, including the reimbursement of the Agent for all out-of-pocket
expenses (including attorneys' fees) incurred by the Agent hereunder or in
connection herewith or in enforcing the Obligations of the Borrower under this
Agreement or any other Loan Document, in all cases as to which the Agent is not
reimbursed by the Borrower; provided that no Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments,
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suits, costs, expenses or disbursements determined by a court of competent
jurisdiction in a final proceeding to have resulted solely from the Agent's
gross negligence or wilful misconduct. The Agent shall not be required to take
any action hereunder or under any other Loan Document, or to prosecute or
defend any suit in respect of this Agreement or any other Loan Document, unless
it is indemnified to its satisfaction by the Lenders against loss, costs,
liability and expense. If any indemnity in favor of the Agent shall become
impaired, it may call for additional indemnity and cease to do the acts
indemnified against until such additional indemnity is given.
SECTION 8.2. Funding Reliance, etc. Unless the Agent
shall have been notified by telephone, confirmed in writing, by any Lender by
5:00 p.m., New York City time, on the day prior to a Borrowing that such Lender
will not make available the amount which would constitute its Percentage of
such Borrowing on the date specified therefor, the Agent may assume that such
Lender has made such amount available to the Agent and, in reliance upon such
assumption, make available to the Borrower a corresponding amount; provided,
however, that the Agent shall have no obligation to do so. If such amount is
made available by such Lender to the Agent on a date after the date of such
Borrowing, such Lender shall pay to the Agent on demand interest on such amount
at the Federal Funds Rate for the number of days from and including the date of
such Borrowing to the date on which such amount becomes immediately available
to the Agent, together with such other compensatory amounts as may be required
to be paid by such Lender to the Agent pursuant to the Rules for Interbank
Compensation of the Council on International Banking or the Clearinghouse
Compensation Committee, as the case may be, as in effect from time to time. A
statement of the Agent submitted to any Lender with respect to any amounts
owing under this Section 8.2 shall be conclusive, in the absence of manifest
error. If such amount is not in fact made available to the Agent by such
Lender within three Business Days after the date of such Borrowing, the Agent
shall be entitled to recover such amount, with interest thereon at the rate per
annum then applicable to the Loans comprising such Borrowing, within five
Business Days after demand, from the Borrower. Nothing herein shall be
construed to release any Lender from its obligation to make Loans subject to
the terms and conditions set forth in this Agreement.
SECTION 8.3. Exculpation. Neither the Agent nor any of
its directors, officers, employees or agents shall be liable to any Lender for
any action taken or omitted to be taken by it under this Agreement, the Notes,
or any Loan Document, or in connection herewith or therewith, except for its
own wilful misconduct or gross negligence. The Agent shall not be responsible
to any Lender for any recitals, statements, representations or warranties
herein or in any certificate or other document delivered in connection herewith
or for the authorization, execution, effectiveness, genuineness, validity,
enforceability, perfection, collectability, or sufficiency of any of the Loan
Documents, the financial condition of the Borrower or any Subsidiary or the
condition or value of any of the Collateral, or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of any of the Loan Documents, the financial condition of the
Borrower or any Subsidiary or the existence or possible existence of any
Default. The Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate, statement or writing
which it believes to be genuine and to have been presented by a proper Person.
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SECTION 8.4. Successor. The Agent may resign as such at
any time upon at least thirty (30) days' prior notice to the Borrower and all
Lenders, such resignation not to be effective until a successor Agent is in
place. If the Agent at any time shall resign, the Required Lenders may appoint
another Lender as a successor Agent which shall thereupon become the Agent
hereunder. If no successor Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Agent's giving notice of resignation, then the retiring Agent may, on
behalf of the Lenders, appoint a successor Agent, which shall be one of the
Lenders or a financial institution reasonably acceptable to the Borrower
organized under the laws of the United States and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall be entitled to
receive from the retiring Agent such documents of transfer and assignment as
such successor Agent may reasonably request, and shall thereupon succeed to and
become vested with all rights, powers, privileges, and duties of the retiring
Agent, and the retiring Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents.
SECTION 8.5. Loans by the Agent. The Agent shall have the
same rights and powers with respect to (a) the Loans made by it or any of its
Affiliates and (b) the Notes held by it or any of its Affiliates, as any Lender
and may exercise the same as if it were not the Agent.
SECTION 8.6. Credit Decisions. Each Lender acknowledges
that it has, independently of the Agent and each other Lender, and based on
such financial information and such other documents, information and
investigations as it has deemed appropriate, made its own credit decision to
extend its Commitments, to make the Loans. Each Lender also acknowledges that
it will, independently of the Agent and each other Lender, and based on such
other documents, information and investigations as it shall deem appropriate at
any time, continue to make its own credit decisions as to exercising or not
exercising from time to time any rights and privileges available to it under
this Agreement or any other Loan Document.
SECTION 8.7. Copies, etc. The Agent shall give prompt
notice to each Lender of each notice or request required or permitted to be
given to the Agent by the Borrower pursuant to the terms of this Agreement.
The Agent will distribute to each Lender each Instrument received for its
account and copies of all other communications received by the Agent from the
Borrower for distribution to the Lenders by the Agent in accordance with the
terms of this Agreement. Notwithstanding anything herein contained to the
contrary, all notices to and communications with the Borrower under this
Agreement and the other Loan Documents shall be effected by the Lenders through
the Agent.
ARTICLE 9.
MISCELLANEOUS
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SECTION 9.1. Waivers, Amendments, etc. (a) The provisions
of this Agreement and of each Loan Document may from time to time be amended,
modified or waived, if such amendment, modification or waiver is in writing
and, (x) in the case of an amendment or modification, is consented to by the
Borrower and the Required Lenders and (y) in the case of a waiver of any
obligation of the Borrower or compliance with any prohibition contained in this
Agreement or any other Loan Document, is consented to by the Required Lenders;
provided, however, that no such amendment, modification or waiver:
(i) which would modify any requirement hereunder that any
particular action be taken by all the Lenders or by the Required
Lenders shall be effective unless consented to by each Lender;
(ii) which would modify this Section 9.1, change the
definition of "Required Lenders," increase the Revolving Loan
Commitment Amount or change any Percentage for any Lender, reduce any
fees payable to the Lenders described in Article 2 and Article 3,
extend the Revolving Loan Commitment Termination Date or subject any
Lender to any additional obligations shall be made without the consent
of each Lender;
(iii) which would extend the due date for, or reduce the
amount of, any payment or prepayment of principal of or interest on
any Loan (or reduce the principal amount of or rate of interest on
any Loan) shall be made without the consent of the holder of the Note
evidencing such Loan; or
(iv) which would affect adversely the interests, rights,
compensation or obligations of the Agent qua the Agent shall be made
without consent of the Agent.
(b) No failure or delay on the part of the Agent, any
Lender or the holder of any Note in exercising any power or right under this
Agreement or any other Loan Document shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or right.
No notice to or demand on the Borrower in any case shall entitle it to any
notice or demand in similar or other circumstances. No waiver or consent by
the Agent, any Lender, or the holder of any Note under this Agreement or any
other Loan Document shall, except as may be otherwise stated in such waiver or
consent, be applicable to subsequent transactions. No waiver or consent
hereunder shall require any similar or dissimilar waiver or consent thereafter
to be granted hereunder.
(c) Neither any Lender nor the Agent shall be under any
obligation to marshal any assets in favor of the Borrower or any other party or
against or in payment of any or all of the Obligations. Recourse for security
shall not be required at any time. To the extent that the Borrower makes a
payment or payments to the Agent or the Lenders, or the Agent or the Lenders
enforce their security interests or exercise their rights of setoff, and such
payment or payments or the proceeds of such enforcement or setoff or any part
thereof are subsequently for any reason invalidated, set aside or required to
be repaid to a trustee, receiver or any other party under any bankruptcy law,
state or
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federal law, common law or equitable cause, then to the extent of such
recovery, the obligation or part thereof originally intended to be satisfied,
and all Liens, rights and remedies therefor, shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement
or setoff had not occurred.
SECTION 9.2. Notices. All notices hereunder shall be in
writing or by telecopy and shall be sufficiently given to the Agent, the
Lenders or the Borrower if addressed or delivered to them at the following
addresses:
If to the Agent: ING Capital
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Chief Credit Officer
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to: ING Capital
Atlanta ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to: King & Spalding
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Esq.
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to any other Lender: At its address set forth beneath its name on
the signature pages hereof
If to the Borrower Brunswick Biomedical Corporation/
prior to the ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Consummation Date: ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ & Dodge
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Borrower Survival Technology, Inc.
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on or after the Merger ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Consummation Date: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇▇▇ & Dodge
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopier No: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as any party may designate to any other party by
written notice. All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; when
received, if deposited in the mail, postage prepaid; when transmission is
verified, if telecopied; and on the next Business Day, if timely delivered to
an air courier guaranteeing overnight delivery.
SECTION 9.3. Costs and Expenses. The Borrower agrees to
pay all reasonable out-of-pocket expenses of the Agent (including reasonable
fees and expenses of counsel to the Agent, or of any consultants or other
experts retained by the Agent) in connection with (i) the negotiation,
preparation, execution, and delivery of this Agreement and each other Loan
Document, including schedules and exhibits, and any amendments, waivers,
consents, supplements, terminations, releases or other modifications to this
Agreement or any other Loan Document as may from time to time hereafter be
required, whether or not the transactions contemplated hereby are consummated,
and (ii) the consideration of legal questions relevant to this Agreement of any
other Loan Document. The Borrower also agrees to pay and hold the Agent and
the Lenders harmless from any stamp, documentary, intangibles, transfer or
similar taxes or charges, and all recording or filing fees with respect to the
Loan Documents or any payments to be made thereunder and any title insurance
premiums, surveyors costs and valuation fees, and to reimburse the Agent and
each Lender upon demand for all reasonable out-of-pocket expenses (including
reasonable attorneys' fees and expenses) incurred by the Agent or such Lender
in enforcing the Obligations of the Borrower or any Subsidiary under this
Agreement or any other Loan Document or related Document or in connection with
any restructuring or "work-out" of any Obligations, provided that the Lenders
shall be entitled to reimbursement in respect of reasonably attorney's fees and
expenses payable to a single law firm (in addition to any law firm representing
the Agent) in connection with any such enforcement, restructuring or "work-out".
SECTION 9.4. Indemnification. In consideration of the
execution and delivery of this Agreement by the Agent and each Lender, the
making of the Bridge Loan and the Term Loan and the extension of the Revolving
Loan Commitment, the Borrower hereby indemnifies, exonerates and holds the
Agent and each Lender, each of their respective successors and assigns, each of
the respective officers, directors, employees, attorneys and agents of the
Agent and each Lender and each of their respective successors and assigns
(collectively, the "Lender Parties") free and harmless from
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and against any and all actions, causes of action, suits, losses, costs,
liabilities (including, but not limited to, Environmental Liabilities and
Costs), damages and expenses (irrespective of whether such Lender Party is a
party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements (the "Indemnified Liabilities"),
incurred by the Lender Parties or any of them or asserted or awarded against
the Lender Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole
or in part, directly or indirectly, with the proceeds of any Loan, including,
without limitation, the Acquisition and the Merger;
(b) the use of any of the proceeds of the Loans by the
Borrower for any other purpose;
(c) the making of any claim by any investment banking
firm, broker or third party that it is entitled to compensation from the Agent
or any Lender in connection with this Agreement (other than investment banking
firms and brokers retained by the Agent or any Lender);
(d) the entering into and performance of this Agreement
and any other Loan Document by any of the Lender Parties (other than the breach
by such Lender Party of this Agreement);
(e) the existence of any contaminant, in, under, on or
otherwise affecting any property owned, used, operated, or leased by Borrower
or any Subsidiary in the past, present, or future or any surrounding areas
affected by such property, regardless of whether the existence of the
contaminant is related to the past, present, or future operations of the
Borrower and its Subsidiaries, or their predecessors in interest or any other
Person; any Environmental Liabilities and Costs related to any property owned,
used, operated, or leased by Borrower or any Subsidiary in the past, present,
or future; any Environmental Liabilities and Costs related to the past,
present, or future operations of the Borrower or any Subsidiaries; any alleged
violations of any Environmental Law related to any property owned, used,
operated, or leased by Borrower or any Subsidiary in the past, present, or
future; any alleged violations of any Environmental Law related to the past,
present, or future operations of the Borrower or any Subsidiaries; the
performance of any remedial action that is related to any property owned, used,
operated, or leased by Borrower or any Subsidiaries in the past, present, or
future; the performance of any remedial action that is related to the past,
present, or future operations of the Borrower or any Subsidiaries; and the
imposition of any Lien on any property affected by this Agreement or any of the
other Loan Documents arising from any Environmental Liabilities or Costs;
(f) the breach in any material respect by Borrower of any
representation or warranty set forth in this Agreement or any Loan Document;
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(g) the failure of Borrower to comply in any material
respect with any term, condition, or covenant set forth in this Agreement or
any Loan Document; or
(h) any claim, litigation, investigation or proceeding
relating to (i) any of the Loan Documents, (ii) any proposed acquisition by the
Borrower of all or any portion of the stock or assets of any Person or (iii)
any of the other matters referenced in clauses (a) - (g) above, whether or not
the Agent or any Lender (or any of their respective officers, directors,
employees or agents) is a party thereto;
except for any such Indemnified Liabilities arising for the account of a
particular Lender Party by reason of the relevant Lender Party's material
breach of any of its obligations under this Agreement or any other Loan
Document or by reason of the relevant Lender Party's bad faith, gross
negligence or wilful misconduct, in each such case as determined by a final and
nonappealable decision of a court of competent jurisdiction. If and to the
extent that the foregoing undertaking may be unenforceable for any reason, the
Borrower hereby agrees to make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities which is permissible under
applicable law. The foregoing indemnity shall become effective immediately
upon the execution and delivery hereof and shall remain operative and in full
force and effect notwithstanding the consummation of the transactions
contemplated hereunder, the repayment of any of the Loans made hereunder, the
invalidity or unenforceability of any term or provision of this Agreement or
any other Loan Document, or any investigation made by or on behalf of any
Lender or the Agent.
SECTION 9.5. Survival. The obligations of the Borrower
under Sections 2.5, 3.5, 9.3 and 9.4, and the obligations of the Lenders under
Section 8.1, shall in each case survive any termination of this Agreement. The
representations and warranties made by the Borrower in this Agreement, the
Notes and in each other Loan Document (including those not required to be made
or repeated after the Merger Consummation Date) shall survive the execution and
delivery of this Agreement, the Notes and each such other Loan Document.
SECTION 9.6. Severability. Any provision of this
Agreement, the Notes or any other Loan Document which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions of this Agreement, the Notes or such
other Loan Document or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 9.7. Headings. The various headings of this
Agreement, the Notes and of each other Loan Document are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement, the Notes or such other Loan Document or any provisions hereof or
thereof.
SECTION 9.8. Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each
of which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement. This Agreement shall
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become effective when counterparts hereof executed on behalf of the Borrower
and each Lender (or notice thereof satisfactory to the Agent) shall have been
received by the Agent and notice thereof shall have been given by the Agent to
the Borrower and each Lender.
SECTION 9.9. Governing Law; Entire Agreement. (a) THIS
AGREEMENT AND THE NOTES SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER AND
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This Agreement, the
Notes and the other Loan Documents constitute the entire understanding among
the parties hereto with respect to the subject matter hereof and supersede any
prior agreements, written or oral, with respect thereto including the
Commitment Letter.
(b) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN
NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR RELATED DOCUMENT, AND EACH HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURT. THE BORROWER
AGREES THAT SUCH JURISDICTION SHALL BE EXCLUSIVE WITH RESPECT TO ANY SUCH
ACTION OR PROCEEDING BROUGHT BY IT AGAINST THE AGENT OR ANY LENDER. EACH PARTY
TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO, THE DEFENSE OF ANY INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING.
(c) The Borrower hereby irrevocably designates, appoints
and empowers CT Corporation System, whose present address is ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent to receive, for and on its behalf
and its property, service of process in the State of New York when and as such
legal actions or proceedings may be brought in the courts of the State of New
York or of the United States of America sitting in New York, and such service
of process shall be deemed complete upon the date of delivery thereof to such
agent whether or not such agent gives notice thereof to the Borrower, or upon
the earliest of any other date permitted by applicable law. The Borrower shall
furnish the consent of CT Corporation System so to act to the Agent on or prior
to the Closing Date. It is understood that a copy of said process served on
such agent will as soon as practicable be forwarded to the Borrower, at its
address set forth below, but its failure to receive such copy shall not affect
in any way the service of said process on said agent as the agent of the
Borrower. The Borrower irrevocably consents to the service of process out of
any of the aforementioned courts in any such action or proceeding by the
mailing of the copies thereof by certified mail, return receipt requested,
postage prepaid, to it at its address set forth herein, such service to become
effective upon the earlier of (i) the date 10 calendar days after such mailing
or (ii) any earlier date permitted by applicable law. The Borrower agrees that
it will at all times continuously maintain an agent to receive service of
process in the State of New York on behalf of itself and its properties and in
the event that, for any reason, the agent named above or its successor shall no
longer serve as its agent to receive service of process in the State of New
York on its behalf,
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it shall promptly appoint a successor so to serve and shall advise the Agent
and the Lenders thereof (and shall furnish to the Agent the consent of any
successor agent so to act). Nothing in this Section 9.9 shall affect the right
of the Agent or any Lender to bring proceedings against the Borrower in the
courts of any other jurisdiction or to serve process in any other manner
permitted by applicable law.
SECTION 9.10. Successors and Assigns. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that the Borrower may not
assign or transfer its rights or obligations hereunder without the prior
written consent of all Lenders; and the rights of sale, assignment and transfer
of the Lenders are subject to Section 9.11.
SECTION 9.11. Sale and Transfers, Participations, etc. (a)
Any Lender may at any time sell to one or more Participants participating
interests in any Loan owing to such Lender, any Note held by such Lender, the
Term Loan Commitment or the Revolving Loan Commitment of such Lender, or any
other interest of such Lender under this Agreement. In the event of any such
sale by a Lender of participating interests to a Participant, such Lender's
obligations under this Agreement shall remain unchanged and such Lender shall
remain solely responsible for the performance thereof, such Lender shall remain
the holder of any such Note for all purposes under this Agreement and the other
Loan Documents, and the Borrower and the Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and the other Loan Documents. The Borrower
agrees that if amounts outstanding under this Agreement and the Notes are due
or unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of setoff in respect of its participating interest in amounts
owing under this Agreement and any Note to the same extent as if the amount of
its participating interest were owing directly to it as a Lender under this
Agreement or any Note, provided that such right of setoff shall be subject to
the approval of the Required Lenders and to the obligations of such Participant
to share with the Lenders, and the Lenders agree to share with such
Participant, as provided in Section 3.8 as if the Participant were a Lender
hereunder and the Borrower shall have been notified of the name, address, date
and amount of such Participant's participating interest in the Loans and the
Commitments. The Borrower also agrees that each Participant shall be entitled
to the benefits of (i) Section 9.4 and (ii) Sections 2.5 and 3.6, with respect
to its participation in the Commitments and the Loans outstanding from time to
time; provided, that no Participant shall be entitled to receive any greater
amount pursuant to the Sections referred to in clause (ii) than the transferor
Lender would have been entitled to receive in respect of the amount of the
participation transferred by such transferor Lender to such Participant had no
such transfer occurred.
(b) With the consent of the Agent and the consent of the
Borrower (which consent shall not be unreasonably withheld or delayed), any
Lender may at any time sell to any Purchasing Lender all or any part in a
minimum amount of $2,500,000, of its rights and obligations under this
Agreement and the Notes pursuant to a Transfer Supplement, executed by such
Purchasing Lender, such transferor Lender, the Agent and the Borrower. Upon
(i) such execution of such Transfer Supplement, and (ii) delivery of a fully
executed copy thereof to the Borrower, such Purchasing
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Lender shall for all purpose be a Lender party to this Agreement and shall have
all the rights and obligations of a Lender under this Agreement, to the same
extent as if it were an original party hereto, with a Percentage of the Bridge
Loan, the Revolving Loan Commitment Amount and the Term Loan set forth in such
Transfer Supplement, and no further consent or action by the Borrower, the
Lenders or the Agent shall be required. Such Transfer Supplement shall be
deemed to amend this Agreement to the extent, and only to the extent, necessary
to reflect the addition of such Purchasing Lender and the resulting adjustment
of Percentages arising from the purchase by such Purchasing Lender of all or a
portion of the rights and obligations of such transferor Lender under this
Agreement and the Notes. Upon the consummation of any transfer to a Purchasing
Lender pursuant to this paragraph (b), the transferor Lender, the Agent and the
Borrower shall make appropriate arrangements so that, if required, replacement
Notes are issued to such transferor Lender and new Notes to the Purchasing
Lender in the amount equal to their respective Commitments and outstanding
Loans, as appropriately adjusted pursuant to such Transfer Supplement.
(c) The Agent shall maintain at its address referred to
herein a copy of each Transfer Supplement delivered to it and the Register for
the recordation of the names and addresses of the Lenders and the Commitments
of, and principal amount of the Loans owing to, each Lender from time to time.
The entries in the Register shall be conclusive, in the absence of manifest
error, and the Borrower, the Agent and the Lenders may treat each Person whose
name is recorded in the Register as the owner of the Loans recorded therein for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(d) Upon its receipt of a Transfer Supplement executed by
a transferor Lender, the Agent and a Purchasing Lender together with payment by
such Purchasing Lender to the Agent, for the account of the Agent and not for
the account of the Lenders, of a registration and processing fee of $2,500, and
the Notes subject to such Transfer Supplement, the Agent shall (i) accept such
Transfer Supplement, (ii) record the information therein in the Register and
(iii) give prompt notice of such acceptance and recordation to the Lenders and
the Borrower.
(e) If, pursuant to this Section 9.11, any interest in
this Agreement or any Note is transferred to any Participant or Purchasing
Lender which is organized under the laws of any jurisdiction other than the
United States or any State thereof, the transferor Lender shall cause such
Participant or Purchasing Lender, concurrently with the effectiveness of such
transfer, (i) to represent to the transferor Lender (for the benefit of the
transferor Lender, the Agent and the Borrower) that under applicable law and
treaties no taxes will be required to be withheld by the Agent, the Borrower or
the transferor Lender with respect to any payments to be made to such
Participant or Purchasing Lender in respect of the Loans or Commitments, (ii)
to furnish to the transferor Lender, the Agent and the Borrower two properly
executed original Internal Revenue Service Forms 4224 or 1001 (or any successor
forms) and properly executed Internal Revenue Service Forms W-8 and W-9, as the
case may be, (wherein such Participant or Purchasing Lender claims entitlement
to complete exemption from the United States federal withholding tax on all
interest payments hereunder and all fees payable under Section 2.4) and (iii)
to agree (for the benefit of the transferor Lender, the Agent
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and the Borrower) to provide the transferor Lender, the Agent and the
Borrower new Internal Revenue Service Forms 4224 or 1001 upon the expiration or
obsolescence of any previously delivered form or after the occurrence of any
event requiring a change in the most recent forms delivered by it to the
Transferor Lender, the Agent and the Borrower, and comparable statements in
accordance with applicable United States laws and regulations and amendments
duly executed and completed by such Participant or Purchasing Lender, and to
comply from time to time with all applicable United States laws and regulations
with regard to such withholding tax exemption.
(f) Notwithstanding anything to the contrary set forth in
this Section 9.11, (i) any Lender may sell to any of its Affiliates all or any
part of its rights and obligations under this Agreement and the Notes (provided
that no such Affiliate shall be entitled to receive any greater amount pursuant
to Sections 2.5 or 3.6 than that which the transferor Lender would have been
entitled to receive in respect of the amount so assigned by such transferor
Lender to such Affiliate had no such transfer occurred) and, upon the
occurrence and during the continuance of an Event of Default, any Lender may
sell to any Purchasing Lender all or any part of its rights and obligations
under this Agreement and the Notes, in either case notwithstanding that the
Borrower has not consented or does not consent to such sale, provided such
Lender has obtained the consent of the Agent and otherwise meets the
requirements of this Section 9.11 and (ii) any Lender may create a security
interest in all or any portion of its rights under this Agreement (including
the Loans owing to it and the notes held by it) in favor of the Federal Reserve
Bank in accordance with Regulation A of the F.R.S. Board.
SECTION 9.12. Other Transactions. Nothing contained herein
shall preclude the Agent or any other Lender from engaging in any transaction,
in addition to those contemplated by this Agreement or any other Loan Document,
with the Borrower or any of its Affiliates in which the Borrower or such
Affiliate is not restricted hereby from engaging with any other Person.
SECTION 9.13. Confidentiality. The Lenders and the Agent
shall hold all non-public, proprietary or confidential information (which has
been identified as such by the Borrower) obtained pursuant to the requirements
of this Agreement in accordance with their customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices; however, the Lenders and the Agent may make disclosure of
any such information to its examiners, Affiliates, outside auditors, counsel,
consultants, appraisers and other professional advisors in connection with this
Agreement or as required by any proposed syndicate member or any proposed
transferee or participant in connection with the contemplated transfer of any
Note or participation therein or as required or requested by any Governmental
Authority or representative thereof or in connection with the enforcement
hereof or of any Loan Document or related document or pursuant to legal
process; provided, however, that any such proposed syndicate member or proposed
transferee or participant shall have agreed in writing for the Borrower's
benefit to be bound by the terms of this Section 9.13. In no event shall any
Lender or the Agent be obligated or required to return any materials furnished
to it by the Borrower.
SECTION 9.14. Change in Accounting Principles. If
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(a) any changes in accounting principles from those used
in the preparation of the financial statements referred to in clause (a)(i) of
Section 5.4 hereafter occur as a result of the promulgation of rules,
regulations, pronouncements or opinions by the Financial Accounting Standards
Board or the American Institute of Certified Public Accountants (or successors
thereto or agencies with similar functions) result in a change in the method of
calculation of financial covenants, standards or terms found in this Agreement;
or
(b) there is any change in the Borrower's Fiscal Year
with the Required Lenders' prior written consent pursuant to Section 6.2.16
hereof;
the parties hereto agree to enter into negotiations in order to amend such
financial covenants, standards or terms so as to equitably reflect such changes
with the desired result that the evaluations of the Borrower's financial
condition shall be the same after such changes as if such changes had not been
made; provided, however, that, until the parties hereto have reached a
definitive agreement on such amendments the Borrower shall not change its
Fiscal Year (other than a change by Brunswick of its Fiscal Year end to July 31
as a result of or in contemplation of the Merger) and the Borrower's financial
condition and operations shall continue to be evaluated on the same principles
as those used in the preparation of the financial statements referred to in
clause (a)(i) of Section 5.4.
SECTION 9.15. Waiver of Jury Trial, Etc. THE AGENT, THE
LENDERS AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE
ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, THE
NOTES OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE AGENT, SUCH LENDERS,
OR THE BORROWER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENT AND
SUCH LENDERS ENTERING INTO THIS AGREEMENT.
SECTION 9.16. Limitation of Liability. Neither the Agent,
the Lenders nor any Affiliate thereof shall have any liability with respect to,
and THE BORROWER HEREBY WAIVES, RELEASES AND AGREES NOT TO ▇▇▇ UPON, ANY CLAIM
FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES
SUFFERED BY THE BORROWER IN CONNECTION WITH, ARISING OUT OF, OR IN ANY WAY
RELATED TO THIS AGREEMENT, THE LOAN DOCUMENTS, THE TRANSACTIONS CONTEMPLATED
HEREIN, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH.
SECTION 9.17. Usury Savings Clause. Notwithstanding
anything to the contrary in this Agreement or any other Loan Document, if at
any time any rate of interest accruing on any Obligation, when aggregated with
all amounts payable by the Borrower or any other Loan Party under any of the
Loan Documents that are deemed or construed to be interest accrued or accruing
on such Obligation under applicable law, exceeds the highest rate of interest
permissible
93
101
under any law which a court of competent jurisdiction shall, in a final
determination, deem applicable to such Lender with respect to such Obligation
(each a "Maximum Lawful Rate"), then in such event and so long as the Maximum
Lawful Rate would be so exceeded, such rate of interest shall be reduced to the
Maximum Lawful Rate; provided that if at any time thereafter such rate of
interest accruing on Obligations held by such Lender is less than the Maximum
Lawful Rate, the Borrower shall continue to pay interest to such Lender at the
Maximum Lawful Rate until such time as the total interest received by such
Lender in respect of the Obligations held by it is equal to the total interest
which such Lender would have received had interest on all Obligations held by
such Lender (but for the operation of this Section 9.17) accrued at the rate
otherwise applicable under this Agreement and the other Loan Documents.
Thereafter, interest payable to such Lender in respect of the Obligations held
by it shall accrue at the applicable rate set forth in this Agreement or other
Loan Documents unless and until such rate again exceeds the Maximum Lawful
Rate, in which event this Section 9.17 shall again apply. In no event, shall
the total interest received by any Lender pursuant to the terms hereof exceed
the amount which such Lender could lawfully have received had interest been
calculated for the full term of this Agreement at the Maximum Lawful Rate. In
the event that the Maximum Lawful Rate is calculated pursuant to this Section
9.17, (a) if required by applicable law, such interest shall be calculated at a
daily rate equal to the Maximum Lawful Rate divided by the number of days in
the year in which such calculation is made, and (b) if permitted by applicable
law, the Borrower and such Lender shall (i) characterize any non-principal
payment as an expense, fee or premium rather than as interest, (ii) exclude
voluntary prepayments and the effect thereof, and (iii) amortize, prorate,
allocate and spread in equal or unequal parts the total amount of interest
throughout the entire contemplated term of the Loans so that interest for the
entire term of the Loans shall not exceed the Maximum Lawful Rate. In the
event that a court of competent jurisdiction, notwithstanding the provisions of
this Section 9.17 shall make a final determination that any Lender has received
interest in excess of the Maximum Lawful Rate, such Lender shall, to the extent
permitted by applicable law, promptly apply such excess, first to any interest
due and outstanding under this Agreement and the other Loan Documents, second
to any principal due and payable under this Agreement and the Notes, third to
the remaining principal amount of the Notes and fourth to other unpaid
Obligations held by such Lender, and thereafter shall refund any excess to the
Borrower or as a court of competent jurisdiction may otherwise order.
SECTION 9.18. Effectiveness of Execution and Delivery by
STI. This Agreement and the other Loan Documents to which Borrower is a party
shall be deemed executed and delivered by STI upon the consummation of the
Merger, and the execution and delivery by STI of this Agreement shall not be a
condition to the execution, delivery and effectiveness of this Agreement as
among Brunswick, the Lenders and the Agent.
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102
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed under seal by their respective officers thereunto duly
authorized as of the day and year first above written.
BRUNSWICK BIOMEDICAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
Percentage
----------
100% - Bridge INTERNATIONALE NEDERLANDEN (U.S.)
100% - Revolving CAPITAL CORPORATION, AS AGENT AND AS
100% - Term LENDER
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇
Managing Director
95
103
EXHIBIT A
ASSUMPTION AGREEMENT
THIS ASSUMPTION AGREEMENT (this "Agreement"), dated as of
_______________, between SURVIVAL TECHNOLOGY, INC., a Delaware corporation (the
"Company"), and INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, as agent
(the "Agent") for the Lenders (as defined below):
W I T N E S S E T H:
RECITALS.
A. Pursuant to a Credit Agreement, dated as of April 15, 1996 as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among Brunswick Biomedical Corporation, a Massachusetts
corporation ("Brunswick"), the various lenders (the "Lenders") as are, or may
become, parties thereto and the Agent, the Lenders made the Bridge Loan to
Brunswick;
B. On the date hereof, Brunswick is being merged with and into
the Company, with the Company as the surviving corporation (the "Merger");
C. Under the terms of the Credit Agreement, upon consummation of
the Merger, the Company is required to execute and deliver this Agreement; and
D. The Company has duly authorized the execution, delivery, and
performance of this Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged by the Company, and in order to induce the Lenders
to make Loans to the Company pursuant to the Credit Agreement, the Company
agrees with the Agent for the benefit of all Lenders as follows:
Article 1.
DEFINITIONS
Section 1.1. Certain Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall have the following meanings (such meanings to be equally applicable to
the singular and plural forms thereof):
104
"Agent" is defined in the preamble.
"Agreement" is defined in the preamble.
"Brunswick" is defined in Recital A.
"Company" is defined in the preamble.
"Credit Agreement" is defined in Recital A.
"Lenders" is defined in Recital A.
"Merger" is defined in Recital B.
Section 1.2. Credit Agreement Definitions. Unless otherwise defined
herein or the context otherwise requires, terms for which meanings are provided
in the Credit Agreement are used in this Agreement, and its preamble and
recitals, with such meanings.
Article 2.
ASSUMPTION
Section 2.1. Assumption. The Company hereby confirms, acknowledges,
represents, warrants, covenants and agrees, for the benefit of the Lenders and
the Agent, that immediately upon the effectiveness of the Merger, and without
any further action by any Person:
(a) The Company assumes (by operation of law and pursuant
to this Agreement) each and every covenant, agreement, term,
condition, obligation, appointment, duty and liability of Brunswick
and, by virtue of the foregoing, accepts and assumes all liability of
Brunswick related to any representation and warranty made by Brunswick
or the Company under or in connection with the Credit Agreement or any
such Loan Document and all such representations and warranties shall
be deemed to have been confirmed and restated as of the effective time
of the Merger; and
(b) The Company shall be the "Borrower" referred to in
the Credit Agreement and shall perform and observe all the covenants,
agreements, terms, conditions, obligations, appointments, duties and
liabilities of the "Borrower" under the Credit Agreement and each
other Loan Document executed by Brunswick, all as if the Company was
the direct, actual and original signatory thereto.
A-2
105
Article 3.
MISCELLANEOUS
Section 3.1. Loan Document. This Agreement is a Loan Document
executed pursuant to the Credit Agreement and shall be construed, administered
and applied in accordance with the terms and provisions of the Credit Agreement.
Section 3.2. Successors and Assigns. This Agreement shall be binding
upon the Company and its successors and assigns and shall inure to the benefit
of, and be enforceable by, the Agent and the Lenders and their respective
successors and assigns.
SECTION 3.3. GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
(b) EACH PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN
NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR RELATED DOCUMENT, AND EACH HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURT. THE COMPANY
AGREES THAT SUCH JURISDICTION SHALL BE EXCLUSIVE WITH RESPECT TO ANY SUCH
ACTION OR PROCEEDING BROUGHT BY IT AGAINST THE AGENT OR ANY LENDER. EACH PARTY
TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO, THE DEFENSE OF ANY INCONVENIENT FORUM TO THE MAINTENANCE OF
SUCH ACTION OR PROCEEDING.
(c) The Company hereby irrevocably designates, appoints
and empowers CT Corporation System, whose present address is ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent to receive, for and on its behalf
and its property, service of process in the State of New York when and as such
legal actions or proceedings may be brought in the courts of the State of New
York or of the United States of America sitting in New York, and such service
of process shall be deemed complete upon the date of delivery thereof to such
agent whether or not such agent gives notice thereof to the Company, or upon
A-3
106
the earliest of any other date permitted by applicable law. The Company shall
furnish the consent of CT Corporation System so to act to the Agent on or prior
to the Merger Consummation Date. It is understood that a copy of said process
served on such agent will as soon as practicable be forwarded to the Company,
at its address set forth below, but its failure to receive such copy shall not
affect in any way the service of said process on said agent as the agent of the
Company. The Company irrevocably consents to the service of process out of any
of the aforementioned courts in any such action or proceeding by the mailing of
the copies thereof by certified mail, return receipt requested, postage
prepaid, to it at its address set forth below, such service to become effective
upon the earlier of (i) the date 10 calendar days after such mailing or (ii)
any earlier date permitted by applicable law. The Company agrees that it will
at all times continuously maintain an agent to receive service of process in
the State of New York on behalf of itself and its properties and in the event
that, for any reason, the agent named above or its successor shall no longer
serve as its agent to receive service of process in the State of New York on
its behalf, it shall promptly appoint a successor so to serve and shall advise
the Agent and the Lenders thereof (and shall furnish to the Agent the consent
of any successor agent so to act). Nothing in this Section 3.3 shall affect
the right of the Agent or any Lender to bring proceedings against the Company
in the courts of any other jurisdiction or to serve process in any other manner
permitted by applicable law.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be
duly executed and delivered by its duly authorized officers on the day and year
first above written.
SURVIVAL TECHNOLOGY, INC.
By:
-------------------------------------
Name:
Title:
A-4
107
ACKNOWLEDGED AND AGREED TO:
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION, as Agent
By:
---------------------------------
Name:
Title:
A-5
108
EXHIBIT B
FORM OF
BORROWING REQUEST
_____________, ____
Internationale Nederlanden
(U.S.) Capital Corporation,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This Borrowing Request is delivered to you, in your capacity
as Agent, under Section 3.1 of the Credit Agreement, dated as of April 15, 1996
as amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among SURVIVAL TECHNOLOGY, INC., as successor by merger to
BRUNSWICK BIOMEDICAL CORPORATION, a Massachusetts corporation (the "Borrower"),
the various lenders (the "Lenders") as are, or may from time to time become,
parties thereto, and Internationale Nederlanden (U.S.) Capital Corporation, as
Agent for the Lenders (the "Agent"). Unless otherwise defined, terms used
herein have the meanings provided in the Credit Agreement.
The Borrower hereby requests that Revolving Loans be made in
the aggregate principal amount of $___________ on ___________, ____. The
Revolving Loans requested hereby shall be [Base Rate Loans.] [Eurodollar Loans
having an initial Interest Period of ____ month[s].]
The Borrower hereby acknowledges that, pursuant to Section
4.3.2 of the Credit Agreement, each of the delivery of this Borrowing Request
and the acceptance by the Borrower of the proceeds of the Loans requested
hereby, constitutes a representation and warranty that, on the date of the
making of such Loans, and before and after giving effect thereto, all
statements set forth in Section 4.3.1 of the Credit Agreement are true and
correct.
109
The Borrower agrees that if, prior to the time of the making
of the Loans requested hereby, any matter certified to herein or in connection
herewith by it will not be true and correct at such time as if then made, it
will immediately so notify the Agent. Unless prior to the making of the Loans
requested hereby, the Agent shall receive written notice to the contrary from
the Borrower, each matter certified to herein or in connection herewith shall
be deemed once again to be certified as true and correct at the date of the
making of such Loans as if then made.
IN WITNESS WHEREOF, the Borrower has authorized this request
to be executed and delivered, and the certifications, representations and
warranties contained herein to be made, by its duly authorized officer as of
the day and year first above written.
SURVIVAL TECHNOLOGY, INC.
By:
-------------------------------------
Name:
Title:
▇-▇
▇▇▇
▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇ ▇▇
▇▇▇▇▇▇ NOTE
$______________ ________ __, ____
FOR VALUE RECEIVED, the undersigned, BRUNSWICK BIOMEDICAL CORPORATION,
a Massachusetts corporation (the "Borrower"), promises to pay to the order of
__________________________, a _________________ (the "Lender"), at the times
provided in the Credit Agreement referenced hereinafter, the principal sum of
_______________________ DOLLARS ($__________) or, if less, the outstanding
principal amount of the Bridge Loan made by the Lender pursuant to that certain
Credit Agreement, dated as of April 15, 1996 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit Agreement";
capitalized terms used herein and not defined herein shall have the meaning
ascribed to them in the Credit Agreement), among the Borrower, Internationale
Nederlanden (U.S.) Capital Corporation, as Agent, and the various lenders
(including the Lender) as are, or may from time to time become, parties
thereto. Notations indicating the Bridge Loan made by the Lender pursuant to
the Credit Agreement and all payments on account of the principal thereof may
be endorsed by the holder hereof on the grid Schedule attached to this Note, as
provided in the Credit Agreement.
The unpaid principal amount of this Note from time to time shall bear
interest as provided in Section 3.4 of the Credit Agreement. All payments of
principal of and interest on this Note shall be payable in lawful currency of
the United States of America to the account designated by the Agent (and as to
which the Agent has notified the Borrower) in immediately available funds in
accordance with Section 3.6 of the Credit Agreement.
This Note is a Bridge Note referenced in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a
description of the security for this Note and for a statement of the terms and
conditions on which the Borrower is permitted and required to make prepayments
and repayments of principal of the Indebtedness evidenced by this Note and on
which such Indebtedness may be declared to be or may automatically become
immediately due and payable.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
111
The Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and notice of any kind with respect to
this Note. All amounts owing hereunder are payable by the Borrower without
relief from any valuation or appraisal laws.
Executed under seal as of the day and year first above written.
BRUNSWICK BIOMEDICAL CORPORATION
By:
-------------------------------------
Name:
Title:
C-1-2
112
Schedule of Bridge Loan and Repayments
Person
Amount of Amount of Outstanding Making
Date Bridge Loan Repayment Balance Notation
---- ----------- --------- ----------- --------
113
EXHIBIT C-2
FORM OF
REVOLVING NOTE
$______________ _______ __, ____
FOR VALUE RECEIVED, the undersigned, SURVIVAL TECHNOLOGY, INC., a
Delaware corporation (the "Borrower"), as successor by merger to BRUNSWICK
BIOMEDICAL CORPORATION, a Massachusetts corporation, promises to pay to the
order of __________________________, a _________________ (the "Lender"), at the
times provided in the Credit Agreement referenced hereinafter, the principal
sum of _______________________ DOLLARS ($__________) or, if less, the
outstanding principal amount of all Revolving Loans made by the Lender from
time to time pursuant to that certain Credit Agreement, dated as of April 15,
1996 (as amended, restated, supplemented, extended or otherwise modified from
time to time, the "Credit Agreement"; capitalized terms used herein and not
defined herein shall have the meaning ascribed to them in the Credit
Agreement), among the Borrower, Internationale Nederlanden (U.S.) Capital
Corporation, as Agent, and the various lenders (including the Lender) as are,
or may from time to time become, parties thereto. Notations indicating
Revolving Loans made by the Lender pursuant to the Credit Agreement and all
payments on account of the principal thereof may be endorsed by the holder
hereof on the grid Schedule attached to this Note, as provided in the Credit
Agreement.
The unpaid principal amount of this Note from time to time shall bear
interest as provided in Section 3.4 of the Credit Agreement. All payments of
principal of and interest on this Note shall be payable in lawful currency of
the United States of America to the account designated by the Agent (and as to
which the Agent has notified the Borrower) in immediately available funds in
accordance with Section 3.6 of the Credit Agreement.
This Note is a Revolving Note referenced in, and evidences
Indebtedness incurred under, the Credit Agreement, to which reference is made
for a description of the security for this Note and for a statement of the
terms and conditions on which the Borrower is permitted and required to make
prepayments and repayments of principal of the Indebtedness evidenced by this
Note and on which such Indebtedness may be declared to be or may automatically
become immediately due and payable.
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
114
The Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and notice of any kind with respect to
this Note. All amounts owing hereunder are payable by the Borrower without
relief from any valuation or appraisal laws.
Executed under seal as of the day and year first above written.
SURVIVAL TECHNOLOGY, INC.
By:
-------------------------------------
Name:
Title:
C-2-2
115
Schedule of Revolving Loans and Repayments
Person
Amount of Amount of Outstanding Making
Date Bridge Loan Repayment Balance Notation
---- ----------- --------- ----------- --------
116
EXHIBIT C-3
FORM OF
TERM NOTE
$______________ ________ __, ____
FOR VALUE RECEIVED, the undersigned, SURVIVAL TECHNOLOGY, INC., a
Delaware corporation (the "Borrower"), as successor by merger to BRUNSWICK
BIOMEDICAL CORPORATION, a Massachusetts corporation, promises to pay to the
order of __________________________, a _________________ (the "Lender"), at the
times provided in the Credit Agreement referenced hereinafter, the principal
sum of _______________________ DOLLARS ($__________) or, if less, the
outstanding principal amount of the Term Loan made by the Lender pursuant to
that certain Credit Agreement, dated as of April 15, 1996 (as amended,
restated, supplemented or otherwise modified from time to time, the "Credit
Agreement"; capitalized terms used herein and not defined herein shall have the
meaning ascribed to them in the Credit Agreement), among the Borrower,
Internationale Nederlanden (U.S.) Capital Corporation, as Agent, and the
various lenders (including the Lender) as are, or may from time to time become,
parties thereto. Notations indicating the principal amount of the Term Loan
made by the Lender pursuant to the Credit Agreement and all payments on account
of the principal thereof may be endorsed by the holder hereof on the grid
Schedule attached to this Note, as provided in the Credit Agreement.
The unpaid principal amount of this Note from time to time shall bear
interest as provided in Section 3.4 of the Credit Agreement. All payments of
principal of and interest on this Note shall be payable in lawful currency of
the United States of America to the account designated by the Agent (and as to
which the Agent has notified the Borrower) in immediately available funds in
accordance with Section 3.6 of the Credit Agreement.
This Note is a Term Note referenced in, and evidences Indebtedness
incurred under, the Credit Agreement, to which reference is made for a
description of the security for this Note and for a statement of the terms and
conditions on which the Borrower is permitted and required to make prepayments
and repayments of principal of the Indebtedness evidenced by this Note and on
which such Indebtedness may be declared to be or may automatically become
immediately due and payable. This Note evidences Indebtedness heretofore
evidenced by the Lender's Bridge Note, the outstanding principal amount of
which was converted into the Lender's portion of the Term Loan, and this Note
shall constitute an extension and renewal of the Lender's Bridge Note and not a
payment or novation thereof.
117
THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK.
The Borrower hereby waives all requirements as to diligence,
presentment, demand of payment, protest and notice of any kind with respect to
this Note. All amounts owing hereunder are payable by the Borrower without
relief from any valuation or appraisal laws.
Executed under seal as of the day and year first above written.
SURVIVAL TECHNOLOGY, INC.
By:
-------------------------------------
Name:
Title:
▇-▇-▇
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ Loan and Repayments
Person
Amount of Amount of Outstanding Making
Date Bridge Loan Repayment Balance Notation
---- ----------- --------- ----------- --------
119
EXHIBIT D
FORM OF
COMPLIANCE CERTIFICATE
This Compliance Certificate is delivered pursuant to [clause a(iii)]
[clause (c)] of Section 6.1.1 of the Credit Agreement, dated as of April 15,
1996 (together with all amendments and modifications, if any, from time to time
made thereto, the "Credit Agreement"), among [SURVIVAL TECHNOLOGY, INC., a
Delaware corporation, as successor by merger to] BRUNSWICK BIOMEDICAL
CORPORATION, a Massachusetts corporation (the "Borrower"), the various lenders
(the "Lenders"), as are, or may from time to time become, parties thereto and
INTERNATIONALE NEDERLANDEN (U.S.) CAPITAL CORPORATION, as Agent for the
Lenders. Unless otherwise defined, terms used herein (including the
attachments hereto) have the meanings provided in the Credit Agreement.
The undersigned, being the duly elected, qualified and acting chief
[executive/accounting/financial] officer of the Borrower, on behalf of the
Borrower and solely in his/her capacity as an officer of the Borrower, hereby
certifies and warrants that:
1. [He/she] is the chief [executive/accounting/financial] officer
of the Borrower and that, as such, [he/she] is authorized to execute
this Certificate on behalf of the Borrower.
2. As of ________ __, ____ (the "Computation Date"):
(a) except as previously disclosed to the Agent and the
Lenders in writing pursuant to Section 6.1.6 of the Credit Agreement,
(i) no Default or Event of Default, and
(ii) no event of any type described in such
Section 6.1.6,
occurred during the period as to which this Compliance Certificate
relates;
(b) the Senior Debt Leverage Ratio (as calculated
pursuant to clause (a) of Section 6.2.4 of the Credit Agreement) was
_______, as computed on Attachment 1 hereto;
(c) the Total Debt Leverage Ratio (as calculated pursuant
to clause (b) of Section 6.2.4 of the Credit Agreement) was _______,
as computed on Attachment 2 hereto;
(d) the Senior Debt Service Ratio (as calculated pursuant
to clause (c) of Section 6.2.4 of the Credit Agreement) was _______,
as computed on Attachment 3 hereto;
120
(e) the Interest Coverage Ratio (as calculated pursuant
to clause (d) of Section 6.2.4, of the Credit Agreement) was
_________, as computed on Attachment 4 hereto;
(f) the Borrower's Net Worth (as determined in accordance
with GAAP) was ________________;
(g) EBITDA (as calculated pursuant to clause (f) of
Section 6.2.4 of the Credit Agreement) was _________, as computed on
Attachment 5 hereto;
(h) Consolidated Capital Expenditures (as calculated
pursuant to Section 6.2.5 of the Credit Agreement) for the 199___
Fiscal Year are $______________, as detailed on Attachment 6 hereto;
(h) the aggregate amount of payments due from the
Borrower and its Subsidiaries during the 199__ Fiscal Year (as
calculated pursuant to Section 6.2.6 of the Credit Agreement), in
respect of operating leases and agreements to lease having a term of
one year or more, is $________, as detailed on Attachment 7 hereto.
IN WITNESS WHEREOF, the undersigned has executed and delivered
this Certificate, this _____ day of __________, ____.
[BRUNSWICK BIOMEDICAL CORPORATION]
[SURVIVAL TECHNOLOGY, INC.]
By:
-------------------------------------
Name:
Title:
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ 1
Period Ending ____________
(All figures consolidated)
Senior Debt Leverage Ratio
1. Aggregate outstanding principal amount
of the Loans $
--------------
2. EBITDA (as calculated
on Attachment 5 hereto) $
--------------
Ratio: Outstanding Loans (Item 1) to EBITDA (Item 2) is _________.
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ 2
Period Ending ____________
(All figures consolidated)
Total Debt Leverage Ratio
1. Aggregate outstanding principal amount
of all Indebtedness of Borrower and its
Subsidiaries $
--------------
2. EBITDA (as calculated
on Attachment 5 hereto) $
--------------
Total Debt Leverage Ratio:
Outstanding Indebtedness (Item 1) to EBITDA (Item 2) is ____________.
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ 3
Period Ending ____________
(All figures consolidated)
Senior Debt Service Ratio
1. EBITDA (as calculated on Attachment 5) $
--------------
2. Senior Debt Service:
(a) Interest Expense with respect to the
Loans $
--------------
(b) Principal repayments, if any, of the
Loans required to be made pursuant to clause (c) of
Section 3.3.1 of the Credit Agreement $
--------------
(c) Total (sum of (a) and (b)) $
--------------
Ratio: EBITDA (Item 1) to Senior Debt Service (Item 2(c)) is ___________.
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ 4
Period Ending ____________
(All figures consolidated)
Interest Coverage Ratio
1. EBITDA (as calculated on Attachment 5) $
--------------
2. Interest Expense (as listed on Attachment 5) $
--------------
Ratio: EBITDA (Item 1) to Interest Expense (Item 2) is ___________.
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ 5
Period Ending ____________
(All figures consolidated)
EBITDA
1. Net Income $
--------------
2. Interest expense $
--------------
3. Provisions for Income Taxes
4. Depreciation, amortization of intangible assets $
--------------
5. Total $
==============
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ 6
Period Ending ____________
(All figures consolidated)
Consolidated Capital Expenditures
1. Gross dollar amount of additions to property, plant, $
equipment and other fixed assets of the Borrower and --------------
its Subsidiaries, including those additions made in
the ordinary course of business (excluding routine
maintenance and repairs)
2. Capitalized Lease Liabilities incurred by the $
Borrower and its Subsidiaries (to the extent not --------------
included in Item 1)
Borrower's Consolidated Capital Expenditures:
Sum of Item 1 and Item 2 $
==============
▇-▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇ 7
Period Ending ____________
(All figures consolidated)
Borrower's and Subsidiaries "Lease Obligations"
under Section 6.2.6 of the Credit Agreement
1. Aggregate amount of payments due from the Borrower
and its Subsidiaries during the ______ Fiscal Year in
respect of operating leases and agreements described
in Section 6.2.6 of the Credit Agreement $
--------------
2. Borrower's Consolidated Capital Expenditures: $
--------------
Borrower's Consolidated Lease Obligations Sum of Item 1
and Item 2 $
--------------
D-9
128
EXHIBIT E
CONTINUATION/CONVERSION NOTICE
____________, ______
Internationale Nederlanden
(U.S.) Capital Corporation,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This Continuation/Conversion Notice is delivered to you
pursuant to Section 3.4.2 of the Credit Agreement, dated as of April 15, 1996
as amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among [SURVIVAL TECHNOLOGY, INC., as successor by merger to]
BRUNSWICK BIOMEDICAL CORPORATION, a Massachusetts corporation (collectively,
the "Borrower"), the various lenders (the "Lenders"), as are or may become
parties thereto and Internationale Nederlanden (U.S.) Capital Corporation, as
Agent for the Lenders. Unless otherwise defined herein, terms used herein have
the meanings provided in the Credit Agreement.
The Borrower hereby requests that on ____________, _____ [all]
[a portion] of the aggregate principal amount of [the Bridge Loan] [the
Revolving Loans] [the Term Loan] in an outstanding principal amount of
$__________ being presently maintained as [Base Rate Loans] [Eurodollar Loans
having an Interest Period of ______ month[s]], be [converted into] [continued
as] [Base Rate Loans] [Eurodollar Loans having an Interest Period of _____
month[s]].
The Borrower hereby:
(a) certifies and warrants that no Default has occurred
and is continuing or will (after giving effect to the continuation or
conversion requested hereby) occur and be continuing; and
(b) agrees that if prior to the time of such continuation
or conversion any matter certified to herein by it will not be true
and correct at such time as if then made, it will immediately upon
becoming aware of such matter, so notify the Agent.
129
Except to the extent, if any, that prior to the time of the continuation or
conversion requested hereby the Agent shall receive written notice to the
contrary from the Borrower, each matter certified to herein shall be deemed to
be certified at the date of such continuation or conversion as if then made.
IN WITNESS WHEREOF, the Borrower has authorized this
Continuation/Conversion Notice to be executed and delivered, and the
certifications and warranties contained herein to be made, by its Authorized
Officer as of the day and year first above written.
[BRUNSWICK BIOMEDICAL CORPORATION]
[SURVIVAL TECHNOLOGY, INC.]
By:
-------------------------------------
Name:
Title:
▇-▇
▇▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ OF INTEREST RATE CONTRACT COUNTERPARTY
THIS ACKNOWLEDGMENT OF INTEREST RATE CONTRACT COUNTERPARTY
("Acknowledgment"), dated as of ____________, ______, between
___________________ (the "Interest Rate Contract Counterparty") and
Internationale Nederlanden (U.S.) Capital Corporation, as Agent for the Lenders
under the Credit Agreement described below (in such capacity, the "Agent").
W I T N E S S E T H:
RECITALS.
A. This Acknowledgment is being executed and delivered
in accordance with the Credit Agreement dated as of April 15, 1996 among
[Survival Technology, Inc., a Delaware corporation, as successor by merger to]
Brunswick Biomedical Corporation, a Massachusetts corporation (the "Borrower"),
the Lenders party thereto, and the Agent (as from time to time amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
unless otherwise defined herein, terms defined in the Credit Agreement being
used herein as therein defined);
B. The Interest Rate Contract Counterparty has entered
into an [Describe the Interest Rate Contract] (the "Interest Rate Contract")
with the Borrower pursuant to the terms and conditions of Section 6.1.13 of the
Credit Agreement, and the Interest Rate Contract Counterparty desires to
execute this Acknowledgment in order to enjoy certain benefits and subject
itself to certain of the obligations of the Credit Agreement and so that the
obligations of the Borrower to the Interest Rate Contract Counterparty under
the Interest Rate Contract shall be included as Obligations under the Credit
Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
SECTION 1. The Interest Rate Contract Counterparty hereby
acknowledges and agrees that (a) it assumes all obligations of a Lender under
the Credit Agreement with respect to the Interest Rate Contract, (b) the
Interest Rate Contract shall be subject to all terms in the Credit Agreement
and the other Loan Documents and (c) the obligations of the Borrower under the
Interest Rate Contract are "Obligations" under the Credit Agreement.
SECTION 2. Each of the parties to this Acknowledgment agrees
that at any time and from time to time upon written request of any other party,
it will execute and
131
deliver such further documents and do such further acts and things as such
other party may reasonably request in order to effect the purposes of this
Acknowledgment.
SECTION 3. THIS ACKNOWLEDGMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Acknowledgment to be executed by their respective duly authorized officers as
of the date first above written.
INTEREST RATE CONTRACT COUNTERPARTY
By:
-------------------------------------
Name:
Title:
Address for Notices:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
INTERNATIONALE NEDERLANDEN
(U.S.) CAPITAL CORPORATION, as Agent
By:
-------------------------------------
Name:
Title:
F-2
132
ACKNOWLEDGED AND AGREED TO:
[BRUNSWICK BIOMEDICAL CORPORATION]
[SURVIVAL TECHNOLOGY, INC.]
By:
---------------------------------
Name:
Title:
F-3
133
EXHIBIT G
FORM OF
TRANSFER SUPPLEMENT
THIS TRANSFER SUPPLEMENT, dated as of the date set forth in
Item 1 of Schedule I hereto, among the Transferor Lender set forth in Item 2 of
Schedule I hereto (the "Transferor Lender"), each Purchasing Lender set forth
in Item 3 of Schedule I hereto (each, a "Purchasing Lender"), and
Internationale Nederlanden (U.S.) Capital Corporation, as Agent for the Lenders
under the Credit Agreement described below (in such capacity, the "Agent").
W I T N E S S E T H:
RECITALS.
A. This Transfer Supplement is being executed and
delivered in accordance with clause (b) of Section 9.11 of the Credit Agreement
dated as of April 15, 1996 among [Survival Technology, Inc, a Delaware
corporation, as successor by merger to] Brunswick Biomedical Corporation, a
Massachusetts corporation (the "Borrower"), the Transferor Lender and the other
Lenders party thereto, and the Agent (as from time to time amended,
supplemented or otherwise modified from time to time, the "Credit Agreement";
unless otherwise defined herein, terms defined in the Credit Agreement being
used herein as therein defined);
B. Each Purchasing Lender (if it is not already a Lender
party to the Credit Agreement) wishes to become a Lender party to the Credit
Agreement; and
C. The Transferor Lender is selling and assigning to
each Purchasing Lender, rights, obligations, a portion of the [the Bridge Loan
and the Commitments] [Term Loan and the Revolving Loan Commitment] under the
Credit Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. From and after the Transfer Effective Date set
forth in Item 4 of Schedule I hereto (the "Transfer Effective Date"), each
Purchasing Lender shall be a Lender party to the Credit Agreement for all
purposes thereof.
Section 2. (a) On the Transfer Effective Date, each
Purchasing Lender shall pay to the Transferor Lender, in immediately available
funds, an amount equal to the purchase price, as agreed between the Transferor
Lender and such Purchasing Lender (the
G-1
134
"Purchase Price"), for the percentage set forth in Item 5 of Schedule I hereto
(such Purchasing Lender's "Purchased Percentage") being purchased by such
Purchasing Lender of the Transferor Lender's portion of the [the Bridge Loan
and the Commitments] [Term Loan and the Revolving Loan Commitment], the
outstanding principal amount of the Loans and other amounts owing to the
Transferor Lender under the Credit Agreement and Notes.
(b) As of the Transfer Effective Date, the Transferor
Lender hereby irrevocably sells, assigns and transfers to each Purchasing
Lender, without recourse, representation or warranty, and each Purchasing
Lender hereby irrevocably purchases, takes and assumes from the Transferor
Lender, such Purchasing Lender's Purchased Percentage of the [Commitments]
[Revolving Loan Commitment] of the Transferor Lender, the Loans outstanding as
of the Transfer Effective Date held by the Transferor Lender and other amounts
owing as of the Transfer Effective Date to the Transferor Lender under the
Credit Agreement and the Notes, together with all instruments, documents and
collateral security pertaining thereto.
Section 3. From and after the Transfer Effective Date,
principal, interest, fees pursuant to Section 2.3 of the Credit Agreement, and
other amounts that would otherwise be payable to or for the account of the
Transferor Lender pursuant to the Credit Agreement and the Notes shall,
instead, be payable to or for the account of the Transferor Lender and the
Purchasing Lenders, as the case may be, in accordance with their respective
percentages as set forth on Schedule II of this Transfer Supplement, whether
such amounts have accrued prior to the Transfer Effective Date or accrue
subsequent to the Transfer Effective Date.
Section 4. The Notes of the Transferor Lender (the "Exchanged
Notes") are being delivered to the Agent concurrently with this Transfer
Supplement. On or prior to the Transfer Effective Date, the Borrower, at the
Borrower's expense, shall execute and deliver to the Agent, in exchange for
(but not in payment of) the Exchanged Notes, (a) a new [Bridge Note],
[Revolving Note and a new Term Note, in each case,] to the order of each
Purchasing Lender in an amount equal to its Percentage, as set forth on
Schedule II hereto, of the aggregate [Bridge Loans], [Revolving Loan Commitment
and Term Loan, respectively,] and (b) if the Transferor Lender has retained a
portion of the [Bridge Loan] [Revolving Loan Commitment and Term Loan,] a new
[Bridge Note] [Revolving Note and Term Note] to the order of the Transferor
Lender in an amount equal to its retained Percentage, as set forth on Schedule
II hereto, of the aggregate [Bridge Loan] [Revolving Loan Commitment Amount and
Term Loan]. Such new Notes shall be dated the Closing Date and shall otherwise
be in the Form of the respective Notes replaced thereby. The Exchanged Notes
shall be returned by the Agent to the Borrower marked "cancelled" upon issuance
of Notes in exchange therefor.
G-2
135
Section 5. Concurrently with the execution and delivery
hereof, the Agent will, at the request of any Purchasing Lender but at the
expense of the Transferor Lender, provide to such Purchasing Lender (if it is
not already a Lender party to the Credit Agreement) photocopies or conformed
copies of all documents delivered to the Agent on the date of the initial Loans
under the Credit Agreement in satisfaction of the conditions precedent set
forth in the Credit Agreement.
Section 6. Each of the parties to this Transfer Supplement
agrees that at any time and from time to time upon written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Transfer Supplement.
Section 7. By executing and delivering this Transfer
Supplement, the Transferor Lender and each Purchasing Lender confirm to and
agree with each other and the Agent and the Lenders as follows: (i) other than
the representation and warranty that it is the legal and beneficial owner of
the interest being assigned hereby free and clear of any adverse claim, the
Transferor Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the Notes or any other Loan Document or any other instrument or
document furnished pursuant thereto; (ii) the Transferor Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any Subsidiary, the value or perfection
of any collateral securing the Obligations or the obligations of any Subsidiary
under the Subsidiary Guaranty, the performance or observance by the Borrower of
any of its obligations under the Credit Agreement, the Notes or any other Loan
Document or any other instrument or document furnished pursuant thereto, or the
performance or observance by any Subsidiary of its obligations under the
Subsidiary Guaranty or any other Loan Document; (iii) each Purchasing Lender
confirms that it has received a copy of the Credit Agreement, together with
copies of the financial statements referred to in Section 5.4 of the Credit
Agreement and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Commitment
Transfer Supplement; (iv) each Purchasing Lender will, independently and
without reliance upon the Agent, the Transferor Lender or any other Lender and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Credit Agreement; (v) each Purchasing Lender appoints and authorizes
the Agent to take such action as agent on its behalf and to exercise such
powers under the Credit Agreement and the other Loan Documents as are delegated
to the Agent by the terms thereof, together with such powers as are reasonably
incidental thereto, all in accordance with Article 9 of the Credit Agreement;
and (vi) each Purchasing Lender agrees that it will perform in accordance with
their terms all of the obligations which by the terms
G-3
136
of the Credit Agreement and the other Loan Documents are required to be
performed by it as a Lender.
Section 8. Each party hereto represents and warrants to and
agrees with the Agent that it is aware of and will comply with the provisions
of clause (e) of Section 9.11 of the Credit Agreement (if applicable).
Section 9. Schedule II hereto sets forth the revised
Percentages (as defined in the Credit Agreement) of the Transferor Lender and
each Purchasing Lender as well as administrative information with respect to
each Purchasing Lender.
Section 10. The Purchasing Lender agrees to pay the Agent a
registration and processing fee of $2,500 in connection with this Transfer
Supplement. Further, the Purchasing Lender acknowledges that this Commitment
Transfer Supplement will not be recorded by the Agent until such fee is paid.
Section 11. THIS TRANSFER SUPPLEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK.
Section 12. Without limitation of anything else contained in
this Transfer Supplement, the Purchasing Lender acknowledges and agrees to be
bound by the terms and conditions of Section 9.11 of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Transfer Supplement to be executed under seal by their respective duly
authorized officers on Schedule I hereto as of the date set forth in Item 1 of
Schedule I hereto.
, as Transferor Lender
----------------------
By:
-----------------------------------------
Title:
, as a Purchasing Lender
--------------------
By:
-----------------------------------------
Title:
G-4
137
CONSENTED TO:
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION, as Agent
By:
---------------------------------
Name:
Title:
[BRUNSWICK BIOMEDICAL CORPORATION]
[SURVIVAL TECHNOLOGY, INC.]
By:
---------------------------------
Name:
Title:
ACCEPTED FOR RECORDATION
IN REGISTER UPON PAYMENT
OF THE RECORDATION FEE
DESCRIBED IN SECTION 10 HEREOF:
INTERNATIONALE NEDERLANDEN (U.S.)
CAPITAL CORPORATION, as Agent
By:
---------------------------------
Name:
Title:
G-5
138
SCHEDULE I
TO
TRANSFER
SUPPLEMENT
COMPLETION OF INFORMATION AND
SIGNATURES FOR TRANSFER SUPPLEMENT
Item 1 Date of Transfer [Insert date of Transfer Supplement]
Supplement:
Item 2 Transferor Lender: [Insert name of Transferor Lender]
Item 3 Purchasing Lender[s]: [Insert name[s] of Purchasing Lender[s]]
Item 4 Transfer Effective [Insert Transfer Effective Date] [To be a date
Date not less than five business days after date of
Transfer Supplement]
Item 5 Purchased Percentage [Insert percentage to be sold of (1)
Transferor Lender's Bridge Loan and
Commitments, if prior to Merger Consummation
Date, or (2) Transferor Lender's Term Loan
and Revolving Loan Commitment, if on or after
the Merger Consummation Date]
G-6
139
SCHEDULE II
TO
TRANSFER
SUPPLEMENT
LIST OF ADDRESSES
FOR NOTICES AND PERCENTAGES
[Name of Transferor Lender]
Revised [Bridge, Revolving and Term] Percentage: _____%
[Name of Purchasing Lender]
New [Bridge, Revolving and Term] Percentage: _____%
Address for Notices:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Attn:
-------------------------------
Telecopy No.:
-----------------------
G-7
140
EXHIBIT H
OPINION OF COUNSEL TO STI
(to be delivered on the Merger Consummation Date)
[MERGER CONSUMMATION DATE]
Internationale Nederlanden
(U.S.) Capital Corporation,
individually and as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
The Lenders from time to time
parties to the Credit Agreement
referenced herein
Ladies and Gentlemen:
We have acted as counsel to Brunswick Biomedical Corporation, a
Massachusetts corporation (" Brunswick"), Survival Technology, Inc., a Delaware
corporation ("STI"), and Brunswick Biomedical Technologies, Inc., a
Massachusetts corporation ("Technology"), (Brunswick, STI and Technology, each
an "Opinion Party" and, collectively, the "Opinion Parties") in connection with
the Credit Agreement, dated as of April 15, 1996 (the "Credit Agreement"), by
and among Brunswick, the various lenders as are or may from time to time become
parties thereto (the "Lenders") and Internationale Nederlanden (U.S.) Capital
Corporation ("ING"), as agent for the Lenders (the "Agent"), and in connection
with the other Loan Documents. All capitalized terms used herein and not
defined herein shall have the meanings ascribed to them in the Credit
Agreement.
In these capacities, we have examined fully executed originals of the
following documents (collectively, the "Opinion Documents"):
1. the Assumption Agreement;
2. the Term Note, dated as of even date herewith,
payable to the order of ING in the original principal
amount of $10,000,000;
141
[MERGER CONSUMMATION DATE]
Page 2
3. the Revolving Note, dated as of even date herewith,
payable to the order of ING in the original principal
amount of $5,000,000;
4. the STI Subsidiary Guaranty;
5. the STI Security Agreement;
6. the STI Pledge Agreement;
7. the STI Patent Assignment;
8. the STI Trademark Assignment;
9. each of the UCC-1 Financing Statements listed on
Exhibit A attached hereto (collectively, the
"Original Financing Statements");
10. each of the UCC-3 amendments to the Original
Financing Statements naming Brunswick as debtor and
filed pursuant to clause (c) of Section 4.1.8 of the
Credit Agreement (the "UCC Amendments");
11. each of the UCC-1 Financing Statements listed on
Exhibit B attached hereto (collectively, the "New
Financing Statements");
12. each of the UCC-1 Financing Statements listed on
Exhibit C attached hereto (collectively, the "Fixture
Filings");
13. stock powers with respect to all shares of stock held
by STI in its Subsidiaries located in the United
States (other than the Inactive Subsidiaries), each
executed in blank;
14. the Assignment of Key-Man Life Insurance; and
15. the Mortgages described in clause (h) of Section
4.2.9 of the Credit Agreement.
In addition, we have examined the Articles of Organization of Brunswick and
Technology and all amendments thereto, the Certificate of Incorporation of STI
and all amendments thereto, the by-laws of each of the Opinion Parties as now
in effect, and the other documents delivered pursuant to Section 4.1 and 4.2 of
the Credit Agreement.
142
[MERGER CONSUMMATION DATE]
Page 3
We also have reviewed original, photostatic or certified copies of all
corporate records, certificates of public officials of pertinent states,
certificates of corporate officers of the Opinion Parties and such other
instruments, documents and agreements as we have deemed relevant and necessary
as a basis for the opinions hereinafter set forth. As to various questions of
fact material to our opinion, we also have relied upon representations made in
or pursuant to the Opinion Documents and inquiries made of officers of
Brunswick, Technology and STI. We have assumed the genuineness of all
signatures, the authenticity of all documents submitted to us as originals and
the conformity to original documents of all documents submitted to us as
copies. For purposes of this opinion, we have assumed that each Opinion
Document to which the Agent or any Lender is a party constitutes its valid and
binding obligation.
[INSERT ASSUMPTIONS AND QUALIFICATIONS]
Based upon the foregoing, we are of the opinion that:
1. Immediately prior to the Merger, Brunswick was validly
existing as a corporation and in corporate good standing under the laws of the
Commonwealth of Massachusetts and duly qualified to do business and in good
standing as a foreign corporation in the State of Maryland. STI is validly
existing as a corporation and in good standing under the laws of the State of
Delaware and is duly qualified to do business as a foreign corporation in the
States of Maryland and Missouri [INSERT OTHER JURISDICTIONS]. Technology is
validly existing as a corporation and in corporate good standing under the laws
of the Commonwealth of Massachusetts and is duly qualified to do business and
in good standing as a foreign corporation in the State of Maryland. Each
Opinion Party has full power and authority to own and hold under lease its
property and to conduct its business as conducted prior to the Closing Date and
as contemplated to use conducted subsequent to the Closing Date and the Merger
Consummation Date.
2. Each Opinion Party has full power and authority to execute,
deliver and perform its obligations under each Opinion Document executed or to
be executed by it and to incur Indebtedness under the Credit Agreement, the
Assumption Agreement or the STI Subsidiary Guaranty, as the case may be.
3. The execution and delivery by each Opinion Party of each
Opinion Document executed or to be executed by it, and the incurrence and
performance by each Opinion Party of its obligations thereunder, (a) have been
duly authorized by all necessary corporate action, (b) do not require any
Regulatory Approval, (c) do not and will result in a violation of, or
constitute a default under, or give rise to a right of termination or
acceleration with respect to, any provision of any Organic Document, any
Contractual Obligation of such Opinion
143
[MERGER CONSUMMATION DATE]
Page 4
Party listed on the Disclosure Schedule or, to our knowledge, any court decree
or order, (d) do not and will not violate any law or governmental regulation,
and (e) will not result in or require the creation or imposition of any Lien,
except for the Liens expressly granted pursuant to the Opinion Documents.
4. Each Opinion Document has been duly executed and delivered by
each Opinion Party that is a party thereto and constitutes the legal, valid and
binding obligation of such Opinion Party, enforceable in accordance with its
terms, subject to the effect of any applicable bankruptcy, insolvency,
fraudulent transfer, moratorium or similar laws affecting creditors' rights
generally and general principles of equity (regardless of whether considered in
a proceeding in equity or at law).
5. A court of the State of Maryland or a federal court sitting in
the State of Maryland as the forum state and applying the conflict of law rules
thereof would give effect to the provisions of the Opinion Documents providing
that such Opinion Documents are to be governed by, and construed and enforced
in accordance with, the internal laws of the State of New York.
6. The authorized capital stock of Technology consists of 200,000
shares of common stock, $0.01 par value per share, 100,000 shares of which are
issued and outstanding. All issued and outstanding shares of Stock of
Technology are duly authorized, validly issued, fully paid and nonassessable
and are owned of record by the Persons listed on Exhibit D attached hereto. To
our knowledge, there are no existing options, warrants, calls or commitments of
any character whatsoever relating to any of such Stock of Technology granted by
any Opinion Party.
7. None of the Opinion Parties is engaged principally, or as one
of its important activities, in the business of extending credit for the
purposes of purchasing or carrying margin stock. The funding of the Term Loan
and the Revolving Loans to be made on the Merger Consummation Date, together
with the consummation of the other transactions occurring on the Merger
Consummation Date, will not violate or be inconsistent with Regulations G, T, U
or X of the Board of Governors of the Federal Reserve System.
8. No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by, any
Governmental Authority, other than those which have been obtained or made, is
required in connection with, (i) the execution, delivery and performance of any
Opinion Document or (ii) the legality, validity, binding effect or
enforceability of any Opinion Document, except for the filing of the New
Financing Statements, the Financing Statement Amendments and the Fixture
Filings, and the recording of the Mortgages, the STI Patent Assignment and the
STI Trademark Assignment.
144
[MERGER CONSUMMATION DATE]
Page 5
9. None of the Opinion Parties is an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or a "holding
company" or a "subsidiary company" of a "holding company" or an "affiliate" of
a "holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended, or subject to regulation under the Federal Power Act,
the Interstate Commerce Act or any other federal law or law of the Commonwealth
of Massachusetts or the State of Maryland limiting its ability to incur
Indebtedness or to execute, deliver or perform the Opinion Documents to which
it is a party.
10. The STI Pledge Agreement creates a valid security interest in
the Pledged Notes and the Pledged Shares and in any other "Collateral" to which
the UCC is applicable in favor of the Agent, for its benefit and the ratable
benefit of the Lenders, as security for the "Secured Obligations" (as such
terms are defined in the STI Pledge Agreement). The Agent's security interest
in the "Initial Pledged Notes" and the "Initial Pledged Shares" (as such terms
are defined in the Brunswick Pledge Agreement) will be duly perfected by the
delivery to the Agent of such Initial Pledged Notes and Initial Pledged Shares.
Assuming that the Agent has acquired its security interest in the Initial
Pledged Shares without notice on its part or on the part of the Lenders of any
adverse claim, no interest of any other creditor of the Borrower in such
Initial Pledged Shares is equal or prior to the security interest of the Agent
therein, to the extent the priority of the interest of such other creditor is
established by the Uniform Commercial Code ("UCC").
11. The Security Agreement creates a valid security interest in
favor of the Agent, for its benefit and the ratable benefit of the Lenders, as
security for the "Secured Obligations" in such of the "Collateral" (as such
terms are defined in the Security Agreement) to which the New York UCC is
applicable (the "UCC Collateral"). Upon the filing of the New Financing
Statements and the Financing Statement Amendments in the filing offices listed
on Exhibit E, and upon the recording of the STI Patent Assignment and the STI
Trademark Assignment in the United States Patent and Trademark Office, such
security interest (except with respect to fixtures) will be validly perfected
to the extent the UCC Collateral consists of the type of property in which a
security interest may be perfected by filing a financing statement under the
UCC, or, to the extent that, by virtue of Section 9-302 of the UCC, a security
interest in the UCC Collateral consisting of patents or trademarks must be
perfected by a recording in the United States Patent and Trademark Office,
under applicable United States federal law.
12. If by virtue of paragraph (a) of Section 9-104 of the UCC, the
UCC does not apply, upon the recording of the STI Patent Assignment in the
United States Patent and Trademark Office, such assignment will be effective as
to the right, title and interest of STI and each Subsidiary of STI party
thereto, in the registered United States Patents described
145
[MERGER CONSUMMATION DATE]
Page 6
on Schedule 1 to the STI Patent Assignment as against any subsequent purchaser
or mortgagee for a valuable consideration, if such assignment is filed within
three (3) months of its date or prior to the date of any such subsequent
purchase or mortgage.
13. If by virtue of paragraph (a) of Section 9-104 of the UCC, the
UCC does not apply, upon the recording of the STI Trademark Assignment in the
United States Patent and Trademark Office, such assignment will be effective
regarding the right, title and interest of STI and each Subsidiary of STI party
thereto, in the registered United States Trademarks described on Schedule 1 to
the STI Trademark Assignment as against any subsequent purchaser for valuable
consideration, if such assignment in filed within three (3) months of its date
or prior to the date of any such subsequent purchase.
14. The Mortgages are in proper form for recordation in the
offices listed on Exhibit F hereto so as to (a) be accepted for recording and
(b) upon such recordation (and payment of related recording taxes and fees, if
any), convey to the Agent, for its benefit and the ratable benefit of the
Lenders, a valid and enforceable lien on the real property described therein.
15. The Mortgage conforms to all requirements of the laws of the
State of Missouri and the Mortgage contains substantially all of the remedial,
waiver and other provisions normally contained in deeds of trust and security
agreements used in connection with transactions of the type and value described
in the Credit Agreement.
16. The Mortgages create valid security interests in favor of the
Agent, for its benefit and the ratable benefit of the Lenders, as security for
the Obligations, in the personal property and fixtures described therein, to
which the UCC is applicable. Upon the filing of the Fixture Filings in the
real property records of the offices listed on Exhibit F, such security
interests will be validly perfected to the extent that the property covered by
such Fixture Filings may be perfected by filing a financing statement under the
UCC.
17. The offices and records described on Exhibit G are the only
offices and records of the Commonwealth of Massachusetts and the States of
Maryland and Missouri which must be searched to determine if there are any UCC
financing statements or judgment, environmental, tax or ERISA Liens of record
against any property of the Opinion Parties.
18. Enforcement of the remedies provided in the STI Security
Agreement, the STI Pledge Agreement, the STI Patent Assignment, the STI
Trademark Assignment and the Mortgages will not deprive the Agent or the
Lenders of their right to seek a deficiency judgment with respect to the
Obligations of the Borrower or to seek a judgment with respect to the
obligations of Technology under the Subsidiary Guaranty, nor will such
enforcement limit the Agent's and the Lenders' rights to foreclose on other
collateral securing the Obligations of the Borrower or the obligations of
Technology under the Subsidiary Guaranty.
19. Except for nominal filing or recording fees or as set forth on
Exhibit H, no taxes, including, but not limited to, transfer, excise,
intangible, documentary stamp or similar
146
[MERGER CONSUMMATION DATE]
Page 7
taxes, shall be payable to the Commonwealth of Massachusetts or any
jurisdiction therein or the States of Maryland and Missouri or any jurisdiction
therein on account of the execution, delivery or filing of record of the
Opinion Documents, provided that we express no opinion with respect to income
or franchise taxes.
20. The consideration payable to the Agent and the Lenders in
respect of the Term Loan and the Revolving Loan does not violate any law of the
Commonwealth of Massachusetts relating to interest and usury and will not
violate any such law as a result of fluctuations in the ING Alternate Base Rate
or the Eurodollar Rate.
21. Except as set forth in Item 4 (Litigation) of the Disclosure
Schedule, to our knowledge, there is no pending or threatened litigation,
arbitration or governmental investigation, proceeding or inquiry against any
Opinion Party or to which any of the properties, assets or revenues of any
Opinion Party is subject which, if adversely determined, could result in a
Material Adverse Change or could impair its ability to perform its obligations
under the Opinion Documents to which it is a party. None of the proceedings
set forth in such Item 4 seeks to amend, modify or enjoin the transactions
contemplated by the Opinion Documents.
22. Each of STI and Brunswick has the requisite corporate power
and authority to enter into and perform its obligations under the Merger
Agreement. The execution and delivery by each of STI and Brunswick of the
Merger Agreement, and the performance by each of STI and Brunswick of its
obligations thereunder, (a) have been duly authorized by all necessary
corporate action, (b) do not require any Regulatory Approval (including,
without limitation, any filings pursuant to the ▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976), (c) do not result in a violation of, or constitute a
default under, or give rise to a right of termination or acceleration with
respect to, any provision of any Organic Document of STI or Brunswick, any law
or regulation, any Contractual Obligation of Brunswick or STI listed on the
Disclosure Schedule or, to our knowledge, any court decree or order binding on
STI or Brunswick, and (d) do not result in or require the creation or
imposition of any Lien on any of Brunswick's, STI's or any of their respective
Subsidiaries' properties. The Merger Agreement constitutes the legal, valid
and binding obligations of the parties thereto, enforceable in accordance with
its terms, subject to the effect of any applicable bankruptcy, insolvency,
moratorium or similar laws affecting creditors' rights generally and general
principles of equity (regardless of whether considered in a proceeding in
equity or at law). The Certificate of Merger and the Articles of Merger have
been filed with the Secretary of State of Delaware and the Secretary of the
Commonwealth of Massachusetts, respectively, and they comply as to form with
the corporate laws of the State of Delaware and the Commonwealth of
Massachusetts. The Merger is effective and STI is the surviving corporation.
147
[MERGER CONSUMMATION DATE]
Page 8
22. No shareholder of STI is entitled to assert dissenter's
appraisal rights on account of the Merger under the corporate laws of the State
of Delaware.
The opinions rendered herein are limited to the laws of the
Commonwealth of Massachusetts, the States of Maryland and Missouri, the
Delaware General Corporation Law and the federal laws of the United States.
With your permission, we render such opinions as if the Opinion Documents were
governed by the laws of the Commonwealth of Massachusetts, notwithstanding
their recitation that New York law governs. In addition, references to the
Uniform Commercial Code refer to the Uniform Commercial Code as in effect in
the Commonwealth of Massachusetts and the States of Maryland and Missouri, and
the opinions rendered herein are given as if such Uniform Commercial Codes
governed. With your permission, we have relied upon an opinion of _____________
(Maryland counsel) with respect to issues of Maryland law contained in the
opinions rendered in paragraphs 1, 3(b), 3(d), 5, 8, 11, 16, 17 and 18, and an
opinion of ______________ (Missouri counsel) with respect to issues of Missouri
law contained in the opinions rendered in paragraphs 1, 3(b), 3(d), 8, 11, 14,
15, 16, 17 and 18.
This opinion is furnished by us pursuant to Section 4.1.6 of the
Credit Agreement for the sole benefit of the addressees (including any Persons
who may subsequently become Lenders, Participants or successors of the Agent
and Lenders as provided in Section 9.11 of the Credit Agreement) and their
respective counsel, and may not be used or relied upon by any other Person or
in connection with any other transaction without our prior written consent.
Very truly yours,
148
DISCLOSURE SCHEDULE
FOR CREDIT AGREEMENT
DATED AS OF APRIL 15, 1996
Item
1. (Section 3.9(a)). Transactions Costs. See Disclosure Schedule A.
2. (Section 3.9(a)). Sources. See Disclosure Schedule A.
3. (Section 3.9(c)). Indebtedness of STI to be Refinanced.
See description in Item 12.
Notes Payable (upon consummation of Merger)
▇▇▇▇▇▇▇ ▇▇▇▇▇ $2,702,784
4. (Section 5.7). Litigation.
BRUNSWICK: None
STI: None
5. (Section 4.2.8(d)). Mortgaged Property.
BRUNSWICK: None
STI: Leasehold Deed of Trust and Security Agreement dated April 16,
1991, between STI and Syntex Laboratories, Inc.
6. (Section 5.1(iii)). Governmental Licenses.
BRUNSWICK: NONE.
STI: NONE.
7. Exceptions to GAAP.
BRUNSWICK: None
STI: None
149
8. (Section 5.11(a)). Benefit Plans.
BRUNSWICK:
a. Health Plan
b. 401(k) Plan
STI:
a. 401(k) Plan
b. Profit Sharing Plan
c. Stock Option Plan
d. Stock Purchase Plan
e. Profit Sharing Thrift Plan for Employees
f. Cafeteria Plan for Employees
g. Group Life, AD&D and Disability Plan
h. Long Term Disability Plan
i. Medical and Dental Plan
j. Incentive Stock Option Plan
k. Non-Statutory Stock Option Plan
l. 1982 Stock Option Plan
(Section 5.11(b)). NONE.
9. Section 5.12). Labor Controversies.
BRUNSWICK: None
STI: None
10. (Section 5.14). Intellectual Property.
BRUNSWICK and STI: See schedule attached hereto as Disclosure Schedule
B.
11. (Section 5.16). Insurance.
BRUNSWICK:
a. $500,000 term life insurance policy issued 9/8/94 on the life
of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
b. Liability insurance:
(1) BBC general liability insurance policy #BI4339100 expiring
3/1/97 issued by CNA Insurance.
(2) BBC, BBT and BBL automobile liability insurance policy
#AMC0620823 expiring 8/20/96 issued by Continental
Insurance Company.
c. BBC property insurance policy #BI4339100 expiring 3/1/97 issued
by CNA Insurance.
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150
d. BBC and BBT Workers Comp Plan of MA Assigned Risk-Commercial
Union insurance policy #C B (97) H58 95 66 expiring 1/1/97.
e. BBC National Union/AIG insurance policy #GLA1210182 expiring
6/15/96.
f. BBC Continental International insurance policy #PC14667 expired
2/1/96 (Note: renewal is on order.)
g. BBC Continental International insurance policy #PP14666 expired
2/1/96 (Note: renewal is on order.)
h. BBC CNA Worldwide Fidelity & Casualty of New York insurance
policy #PST009633995 expiring 2/1/97.
STI:
a. Great Northern Insurance Company - Property insurance covers
all risk of physical loss including flood and earthquake -
Limit $34,294,909.
b. Electronic Data Processing Insurance - MD - $750,000; MO -
$300,000.
c. Commercial General Liability Insurance - $1,000,000 per
occurrence; $2,000,000 aggregate.
d. Machinery Breakdown Insurance - Blanket for all locations.
e. Inland Marine Transportation Floater - Limit $500,000
f. National Union Insurance - Products/Completed Operations -
Aggregate Limit $5,000,000
g. Security Insurance Company of Hartford - Workmen's
Compensation/Employer's Liability (Missouri) - $500,000
h. Federal Insurance Company - Workmen's Compensation/Employer's
Liability (Maryland) - $500,000
i. Federal Insurance Company - Automobile Liability and Physical
Damage Insurance - $1,000,000 per accident
j. Lloyds of London - International Employer's Liability Insurance
- 10,000,000 British pounds
k. Federal Insurance Company - Foreign Package including personal
liability, commercial liability, automobile liability, foreign
voluntary worker's compensation/employer's liability - $600,000
l. National Union Umbrella Policy - $10,000,000 per occurrence;
$10,000,000 aggregate
m. American International Specialty Lines Insurance Company -
Excess Liability (products/completed operations) primary is
$5,000,000 per occurrence; limit is $10,000,000 each
occurrence in excess of primary.
n. Hartford Insurance Company Group Travel Accident - $150,000
o. Omaha Property and Casualty Flood Insurance - $500,000 limit on
each of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
p. Fireman's Fund Insurance Company - Marine Open Cargo - $700,000
q. National Union Fire Insurance Company - Crime Guard Coverage -
$1,000,000 limit
r. Admiral Insurance Company - Miscellaneous professional -
$1,000,000 limit
s. National Union Fire Insurance Company - Directors and Officers
Liability - $5,000,000 limit
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151
t. American International Specialty Lines Insurance Company -
Fiduciary Liability - $4,000,000 limit
12. (Section 5.17). Existing Indebtedness.
BRUNSWICK:
a. Ulster Bank Limited overdraft facility of up to L.145,000
available to Brunswick Biomedical Ltd. until December 18, 1996.
STI:
b. $5,000,000 Working Capital Management Account Line of Credit
with ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services Inc. as set
forth in the WCMA Note, Loan and Security Agreement dated as
of November 4, 1993 between ▇▇▇▇▇▇▇ ▇▇▇▇▇ and STI as extended
by letter dated October 2, 1995.
c. $5,400,000 Loan Agreement dated as of April 16, 1991 between
Syntex Laboratories, Inc and STI with a Note dated of even
date for $5,375,000 secured by the Leasehold Deed of Trust
listed in Item 5 and a Security Agreement of even date.
d. Master Lease dated March 10, 1993 between Mitel Finance
Corporation and STI and the equipment schedules related thereto.
e. $3,000,000 Equipment Loan under letter agreement dated May 4,
1995 secured by equipment under Master Security Agreement
dated May 18, 1995, amount outstanding set forth below.
f. Master Agreement of Lease with St. Louis Leasing Corp. dated
December 6, 1994 assigned to The CIT Group/Equipment Financing,
Inc.
Notes Payable/Lender Outstanding Obligation
-------------------- ----------------------
(as of 2/29/96)
▇▇▇▇▇▇▇ ▇▇▇▇▇ $2,702,784
Syntex Laboratories 988,371
Center Laboratories 375,000
----------
$4,066,155
Capital Leases/Lessor
CIT (loan and lease) $1,316,232
Mitel 158,616
United 40,911
----------
$1,515,759
----------
$5,581,914
----------
13. (Section 5.18). Environmental Matters.
BRUNSWICK: None
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152
STI: None
14. (Section 5.20). Consents.
BRUNSWICK: shareholder votes approving merger
STI: shareholder votes approving merger
15. (Section 5.21). Contracts.
See also Items 5, 12, 16, 20, 21
BRUNSWICK:
a. Non-qualified Stock Option Agreement dated November 3,
1994 between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Brunswick.
b. Incentive Stock Option Agreement dated May 16, 1995
between ▇▇▇▇▇ ▇▇▇▇ and Brunswick.
c. Consulting Agreement dated October 4, 1991 between ▇▇▇▇
▇▇▇▇▇▇▇▇ and Brunswick.
d. Incentive Stock Option Agreement dated November 3, 1995 between
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Brunswick.
e. Agreement dated March 4, 1989 between STI and Shahal Medical
Services Ltd., as amended by letter dated July 15, 1992 -
assigned to Brunswick.
f. Joint Venture Agreement dated July 15, 1992 between Emergency
Cardiac Services, Inc., ▇▇▇▇ Group B.V., Dutch Company Globe
Insurance Brokers B.V. and STI - assigned to Brunswick.
g. Consulting Agreement dated October 4, 1991 between ▇▇▇▇▇
Limited (now known as Brunswick Biomedical Limited) and
▇▇▇▇ ▇▇▇▇▇▇▇▇.
h. Agreement dated October 4, 1991 between ▇▇▇▇▇ Limited (now
known as Brunswick Biomedical Limited) and Brunswick
Manufacturing Corporation.
i. Contract dated October 8, 1991 between Brunswick Manufacturing
Corporation and University of Ulster.
j. Counterpart License dated August 19, 1994 between University of
Ulster and Brunswick Biomedical Ltd.
k. Amended and Restated Shareholder Agreement dated as of November
12, 1993 among Brunswick and its shareholders, as supplemented
and amended by Supplement dated March 14, 1996 with respect to
Series D preferred stock, Supplement dated March 14, 1996 with
respect to Series E preferred stock and Supplement dated March
15, 1996 with respect to Series F preferred stock.
l. Asset Purchase Agreement dated as of July 31, 1994 between
Brunswick Biomedical Corporation and STI.
m. Asset Purchase Agreement dated July 3, 1990 among Brunswick
Manufacturing Co., Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and Brunswick Biomedical Technologies, Inc.
- 5 -
153
n. Stock Pledge Agreement dated as of April 15, 1996 between
Brunswick and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as personal representative of
the Estate of ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
o. Stock Purchase Agreement dated as of March 18, 1996 between
Brunswick and the Estate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
p. $4,700,000 Subordinated Promissory Note dated April 15, 1996
payable to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as personal representative of the
Estate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
q. Note Purchase Agreement dated as of April 15, 1996 between
Brunswick and E.M. Industries, Inc.
r. $1,000,000 Subordinated Promissory Note of Brunswick dated
April 15, 1996 payable to E.M. Industries, Inc.
s. Preferred Stock and Warrant Purchase Agreement dated as of
March 14, 1996 among Brunswick and the purchasers named therein
with respect to Series E 10% convertible preferred stock.
t. Preferred Stock Purchase Agreement dated March 15, 1996 between
Brunswick and the purchasers named therein with respect to
Series F 10% convertible preferred stock.
u. Incentive Stock Option Agreement dated November 26, 1993
between ▇▇▇▇ ▇. Paradise and Brunswick.
v. Preferred Stock Purchase Agreement for Series A preferred stock
dated July 2, 1990.
w. Series B Convertible Preferred Stock Purchase Agreement for
Series B preferred stock dated December 30, 1991.
x. Purchase Agreement for Series C preferred stock dated April 22,
1993.
y. Stock Purchase Agreement for Series D preferred stock dated
March 14, 1996.
STI:
a. Contract with Defense Personnel Support Center dated October
27, 1995. Contract No. SP0200-96-D-0001.
b. Contract with Defense Personnel Support Center dated August 24,
1995. Contract No. DLA120-93-D-1021.
c. Contract with Defense Logistics Agency dated May 1, 1996.
Contract No. SP0200-95-R-1005.
d. Agreement dated as of January 1, 1987 regarding EpiPen between
STI and Center Laboratories, a division of EM Industries, Inc.,
as amended by Letter Agreements dated September 14, 1989 and
January 31, 1990.
e. Development, Manufacturing and Supply Agreement dated as of
August 31, 1993 between Mylan Laboratories, Inc. and STI, as
amended by an Amendment dated as of July 28, 1994.
f. Investment Agreement dated November 12, 1992 between Survival
Technology, Inc. and EM Industries, Inc.
g. Agreement dated June 23, 1981 between Survival Technology Inc.
and American Home Products Corporation.
h. License Agreement dated April 20, 1982 between Survival
Technology, Inc. and American Home Products Corporation.
16. (Section 5.22). Employment Contracts.
- 6 -
154
BRUNSWICK:
a. Letter Agreement dated July 27, 1993 between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
and Brunswick.
b. Letter Agreement dated March 10, 1995 between ▇▇▇▇▇ ▇▇▇▇ and
Brunswick.
c. Employment Agreement dated as of July 2, 1990 between ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and Brunswick.
d. Employment Agreement dated October 4, 1991 between ▇▇▇▇▇▇
▇'▇▇▇▇ and Brunswick Biomedical Limited f/k/a ▇▇▇▇▇.
e. Employment Agreement dated August 1, 1994 between ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and Brunswick.
f. Employment Agreement dated July 28, 1994 between Brunswick
Biomedical Corporation and T.V. ▇▇▇.
g. Employment Agreement dated May 3, 1993 between Brunswick
Biomedical Corporation and ▇▇▇▇ ▇. Paradise.
STI:
a. Employment Agreement dated as of March 2, 1993 between ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ and STI.
b. Employment Agreement dated as of January 28, 1994 between
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and STI.
c. Employment Agreement dated as of January 28, 1994 between ▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇. and STI.
d. Employment Agreement dated as of November 25, 1992 between ▇▇▇▇
▇▇▇▇▇▇ and STI with Letter Agreement dated as of November 20,
1992 and amendment dated May 24, 1993.
e. Agreement dated as of November 15, 1993 between O. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, III and STI.
f. Agreement dated as of June 29, 1992 between ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
and STI.
g. Agreement dated as of March 1, 1994 between STI, Pharmaceutical
Division, and Teamsters Local Union No. 688, affiliated with the
International Brotherhood of Teamsters, Chauffeurs Warehousemen
and Helpers of America.
17.A. (Section 5.24). Subsidiaries.
BRUNSWICK:
a. Brunswick Biomedical Technologies, Inc.
b. Brunswick Biomedical Ltd.
c. Brunswick Biomedical Investment Corporation (inactive)
d. STI
STI:
a. STI International Limited
b. Pharmapak Corporation (inactive)
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155
18. Termination of Material Contracts.
BRUNSWICK: None
STI: None
19. (Section 6.2.3(b)). Permitted Liens.
BRUNSWICK and STI: See schedule attached hereto as Disclosure Schedule
C.
20. (Section 6.2.6). Leases.
BRUNSWICK:
a. Letter Agreement re Wareham premises
b. Annapolis lease
c. BBL Ireland Lease
d. Canon copier lease from Alco Capital Resource, Inc. expiring
12/22/96.
e. Maxipost Mailing System lease from Neopost Leasing expiring
3/16/97.
f. AT&T Partner 2 Phone System contract #BP-1-0366929 with AT&T
Credit Corporation expiring 4/6/97.
STI:
a. Ground Lease dated December 6, 1988 between ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and STI (Corp. Headquarters)
b. Office Lease dated August 26, 1991 between Prubeta 2 and STI
(Rockville)
c. Lease dated as of October 1, 1994 among ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇, Mjem Enterprises, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and STI with
Memorandum of Office Lease (2555 Hermelin)
d. Office/Warehouse Lease dated October 1, 1994 among ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and STI
e. First Amendment to Lease dated February 25, 1994 between Miran
Investment Co. and STI (2645 South ▇▇▇▇▇▇)
f. First Amendment to Lease dated February 25, 1994 between Miran
Investment Co. and STI (2593 South ▇▇▇▇▇▇)
g. First Amendment to Lease dated February 25, 1994 between Miran
Investment Co. and STI (2615 South ▇▇▇▇▇▇)
h. First Amendment to Lease dated February 25, 1994 between Miran
Investment Co. and STI (2641 South ▇▇▇▇▇▇)
i. First Amendment to Lease dated August 31, 1993 between Miran
Investment Co. and STI (8030 Litzsinger)
j. Commercial Lease dated December 18, 1992 between ▇▇▇▇▇▇▇ ▇.
Postal and STI.
k. Memorandum of Lease dated August 1, 1994 among ▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇ and STI.
- 8 -
156
l. Transfer relating to ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ dated April 14, 1993.
m. Lease Agreement dated March 1, 1996 between ▇▇▇▇▇
Investment Group and STI.
21. (Section 6.2.7) Existing Investments.
BRUNSWICK:
$600,000.00 Note to BBC from BBT with respect to existing
intercompany loans.
STI:
$30,000 Promissory Note from ▇▇▇▇ ▇▇▇▇▇▇ dated June 4, 1993.
- 9 -
157
DISCLOSURE SCHEDULE A
BRUNSWICK BIOMEDICAL CORPORATION
FINANCE SOURCES AND USES
NON-
DEBT PREFSTK NOTE TOTAL CASH CASH
---- ------- ---- ----- ---- ----
CAPITAL PROVIDED AT CLOSING:
Estate $ - $ - $4.7 $ 4.7 $ - $4.7
Other stockholders $11.0 $7.7 $1.0 $19.7 $19.7 $ -
Total Capital Provided $11.0 $7.7 $5.7 $24.4 $19.7 $4.7
CAPITAL REQUIRED AT CLOSING:
Purchase 61% of STC equity ($20,769,386) $20.8 $16.1 $4.7
Closing Costs:
ING Escrow Requirement $ 1.0 $ 1.0
Vector fee ($500K) $ 0.5 $ 0.5
Lawyers ($170K - Estimated) $ 0.2 $ 0.2
ING ($100K Fee, plus $100K Expenses) $ 0.2 $ 0.2
Total Capital Required $22.7 $17.9 $4.7
CAPITAL PROVIDED IN EXCESS OF CLOSING COSTS $ 1.7
CASH PROVIDED IN EXCESS OF CLOSING COSTS $ 1.7
SERIES SERIES SERIES
SUMMARY OF PREFERRED STOCK ISSUED D E F
------ ------ ------
State of Maryland $ 250,000
▇▇. ▇▇▇▇▇▇ $ 30,000
▇▇. ▇▇▇▇▇ 25,000
▇▇. ▇▇▇▇▇▇▇▇▇ 10,000
▇▇. ▇▇▇▇▇▇ 100,000
▇▇. ▇▇▇▇▇▇ 100,000
Mr. Lirberg 55,100
▇▇. ▇▇▇▇▇▇ 50,000
▇▇. ▇▇▇▇▇▇▇▇▇ 50,000
CBI - # III 50,000
CBI - # IV 100,000
CBI - # V $1,008,381 100,000
Mylan $2,999,975
▇. ▇▇▇▇▇ 1,999,992
Dilton Read 500,005
General ▇▇▇▇▇ Pension Fund 249,989
Total $1,258,881 $670,100 $5,749,961
Combined $7,678,542
158
SCHEDULE D
REGISTERED U.S. PATENTS
(BRUNSWICK BIOMEDICAL CORPORATION)
TITLE REGISTRATION NO. REGISTRATION DATE
----- ---------------- -----------------
Twelve-Lead Portable US 5465727 11/14/95
Heart Monitor
Specialized Peak Flow US 5373851 12/20/94
Ambulatory Monitoring US 4531527 07/30/85
System with Real Time
Analysis and Telephone
Transmission
Flow Meter
Heart and Lung Resuscitator 3307541
Variable Width Square Wave
Generator
Magnetic Valve
Method & Apparatus for
Defibrillating the Heart 3351052
Design for Heart & Lung
Resuscitator D203427
Heart & Lung Resuscitator RE26511
Heart & Lung Resuscitator 3509899
Heart & Lung Resuscitator 3511275
Pneumatic Instrument Valve
159
Apparatus for Sealing the
Esophagus & Providing
Artificial Respiration 3683908
Apparatus for Sealing the
Esophagus & Providing
Artificial Respiration ger1954942
Apparatus for Sealing the
Esophagus & Providing
Artificial Respiration gb1288033
Apparatus for Sealing the
Esophagus & Providing
Artificial Respiration jp748378
Apparatus for Sealing the
Esophagus & Providing
Artificial Respiration 3841319
Neck Assembly for Mannequin 3916535
Apparatus for Sealing the
Esophagus & Providing
Artificial Respiration &
Evacuating the stomach 3905361
Resuscitation and Pacing
Devices
Resuscitation Device gb2062477
Esophageal Airway Pacing
Esophageal Airway Wire
Pacing
Resuscitation Device
Esophageal Airway Pacing
160
Apparatus for Sealing the
Esophagus, Providing
Artificial Respiration &
Relieving Pressure on the
Distal
Heart Pacer ire55964
Heart Pacer is74427
Load Control Circuit with
Different Input Voltages 4608498
Passive Endotracheal Tube
Method & Apparatus for
Controlled Breathing
Equipment Internal &
External Electrodes
Heart Valve
Capsule Electrode
Esophageal Obturator Airway
Load Control Circuit
Resuscitation Mask
Method & Apparatus for
Defibrillating the Heart
Using Internal Esophageal
& External Chest Electrode
See H0050/7039
Method & Apparatus for
Controlled Breathing
Employing Internal &
External Electrodes
161
Heart Lung Resuscitator Litter 4060079
Unit
Method & Apparatus for
Defibrillating the Heart
Esophageal-Stomach
Displacement Electrode
Apparatus for Diagnosing a
Heart Condition -
Cardiobeeper
Apparatus & Method of
Measuring Heartbeat 3792700
Portable Heart Monitor 3938507
Dry Applied & Operably
Dry Electrode Device 3911906
Infant Long Term Monitoring
Electrode Assembly 440750
Electrode Assembly & Methods
of Using the Same in the
Respiratory and/or Cardiac
Monitoring of an 3888240
Method & Apparatus for
Self-Administering Pre-
Hospital Phase Treatment of
Coronary Prone Individual 3870035
Method of Treating Heart
Attack Patients Prior to the
Establishment of Qualified
Direct Contact Persona 3910260
Condition Monitoring Pacer 4055189
162
Automatic Detection &
Registration of Failure
Condition in a Cardiac
Pacer Monitoring System 4088139
Method & Apparatus for
Monitoring a Timed Failure
Condition Relationship in
a Cardiac Pacer 4096865
Rate Failure Indicator 4164227
Array Concept 5464727
Specialized Peak Flow Meter 5373851
Twelve-Lead Portable Heart
Monitor & Method 5339823
Device for Measuring Multiple
Channels of Heartbeat
Activity & Encoding into a
Form Suitable for Sim 4889134
Monitoring Device with Dual
Position Electrodes (Precordial
Mode Armpit Electrodes) 4862896
Ambulatory Monitoring System
with Real Time Analysis &
Telephone Transmission
(STATSCAN) 4531527
Method of Treating Heart
Attack Patients Prior to the
Establishment of Qualified
Direct Contact Person 4004577
163
Electrode Assembly & Methods
of using the Same in the
Respiratory and/or Cardiac
Monitoring of an I 3888240
Method & Apparatus of
Treating Heart Attack
Patients Prior to the
Establishment of Qualified
Direct C 3910260
Portable Heart Monitor
(Cardiobeeper) 3938507
ECS
Apparatus & Method of
Monitoring the Electrical
Activity of the Heart of a
Human with Armpit Located 3792700
Cardiac Pacer & Monitor
System 4144892
Emergency Stretcher
Arrangement
Ambulatory Monitoring
System with Real Time
Analysis & Telephone
Transmission 4531527
Electrocardiography Signal
Transmission-Reception
Method Including Method
of Measuring Pacemaker 3946744
Electrocardiography
Transmitter & Transmission
Method 3872251
164
Method & Apparatus for
Pacing the Heart Employing
Internal & External Electrodes 4574807
Heart Pacer ger7026
Heart Pacer 8504796
Heart Pacer 1895217
Method & Apparatus for
Controlled Breathing
Employing Internal &
External Electrodes 4683890
Method & Apparatus for
Defibrillating & Pacing
the Heart 4735206
Method & Apparatus for
Defibrillating the Heart
Using Intern. Esophageal
Electrode & Ext. Chest
Elec 5052390
Method & Apparatus for
Defibrillating the Heart ger7037
Method & Apparatus for
Defibrillating the Heart jp7037
Esophageal Electrode 4960133
Internal Esophageal Electrode ger7038
Internal Esophageal Electrode 2224935
Internal Esophageal Electrode jp7038
165
Method & Apparatus for
Controlling Breathing
Employing Internal &
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ #▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ & Apparatus for
Controlling Breathing
Employing Internal &
External Electrodes #2 can7039
Method & Apparatus for
Controlling Breathing
Employing Internal &
External Electrodes eur7039
Method & Apparatus for
Controlling Breathing
Employing Internal &
External Electrodes isr7039
Method & Apparatus for
Controlling Breathing
Employing Internal &
External Electrodes #2 jp7039
Esophageal Displacement
Electrode 5170803
Esophageal-Stomach
Displacement Electrode 5197491
Esophageal-Stomach
Displacement Electrode can7043
Esophageal-Stomach
Displacement Electrode eur7043
Esophageal-Stomach
Displacement Electrode isr7043
166
Esophageal-Stomach
Displacement Electrode jp7043
Esophageal Obturator
Airway 4497318
Resuscitation Aid 4998530
Resuscitation Mask R1
Esotracheal Airway R2
Displacement Electrode PD1
Fail-Safe Endotracheal
Tube System R3
Electrocardiographic Harness M1
Interpolation of Missing
Information in Electro-
cariographic Body Surface
Maps M2
167
BRUNSWICK BIOMEDICAL CORPORATION
PATENT LICENSES
Patent Licenses with respect to which
the Borrower is a licensor:
Patent Registration
Licensee License or Serial Number
-------- ------- ----------------
Brunswick Biomedical Kiss of Life (KOL)
Corporation Barrier Mask
Brunswick Biomedical Profile Biosignal Electrode
Corporation
Brunswick Biomedical Improved Peak Flow Meter
Corporation
168
REGISTERED U.S. TRADEMARKS
(BRUNSWICK BIOMEDICAL CORPORATION)
▇▇▇▇ REGISTRATION NO. REGISTRATION DATE
Cardio Beeper 1,214,758 11/02/82
Infantrode 1,201,906 07/20/82
Quiktrode 1,020,445 09/16/75
PENDING U.S. TRADEMARK APPLICATIONS
▇▇▇▇ SERIAL NO. FILING DATE
The Heart System 74-396,418 03/29/94
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇.▇. PATENTS
(BRUNSWICK BIOMEDICAL TECHNOLOGIES, INC.)
TITLE REGISTRATION NO. REGISTRATION DATE
----- ---------------- -----------------
Esophageal-Stomach Displacement US 5197491 03/30/93
Electrode
Esophaageal Displacement US 5170803 12/15/92
Electrode
Resuscitation Aid US 5165396 11/24/92
Occlusive Chest Sealing US 5160322 11/03/92
Valve
Method Apparatus for Controlling US 5036848 08/06/91
Breathing Employing Internal
and External Electrodes
170
BRUNSWICK BIOMEDICAL TECHNOLOGIES, INC.
PATENT LICENSES
Patent Licenses with respect to which
the Borrower is a licensor:
Patent Registration
Licensee License or Serial Number
-------- ------- -------------------
Brunswick Biomedical Kiss of Life
Technologies, Inc. Barrier Mask
171
REGISTERED U.S. TRADEMARKS
(BRUNSWICK BIOMEDICAL TECHNOLOGIES, INC.)
▇▇▇▇ REGISTRATION NO. REGISTRATION DATE
---- ---------------- -----------------
CPR Mani 1,715,797 09/15/92
Kiss of Life 1,798,600 10/12/93
EOA 1,083,346 01/24/78
EGTA 1,083,345 01/24/78
172
REGISTERED U.S. PATENTS - SURVIVAL TECHNOLOGIES, INC.
REGISTRATION REGISTRATION
TITLE NO. DATE
----- -- ----
Reloadable Injector US 5425715 06/20/90
Subcutaneous Injector US 5391151 02/21/95
Rectal Administrator US 5364363 11/15/94
Injection Device Having Polyparaxylylene
Coated Container US 5354286 10/11/94
Twelve-Lead Portable Heart Monitor and
Method US 5339823 08/23/94
Automatic Injectors US 5295965 03/22/94
Cap for Automatic Injector US D332489 01/12/93
Auto-Injector for Liquid Medicate US D330079 10/06/92
Autoinjector Converted From Intramuscular
to Subcutaneous Mode of Injection US 5102393 04/07/92
Dispersion Multichamber Auto-Injector US 5092843 03/03/92
Conveniently Carried Frequent Use
Auto-Injector US 5085642 02/04/92
Conveniently Carried Frequent Use
Auto-Injector
Conveniently Carried Frequent Use Auto-
Injector with Improved Cap Structure US 5085641 02/04/92
Automatic Injector for Emergency Treatment US 5078680 01/07/92
Protein Absorption Enhancing Agents; Hydro-
xyamine, Alkylamine, Hydroxyalkylamine US 5002930 03/26/91
173
Package US 4982769 01/08/91
Device for Measuring Multiple Channels of
Heartbeat activity and Encoding Into a Form
Suitable for Simultensoue Transmission Over US 4889134 12/26/89
Monitoring Device with Dual Position Electrodes US 4862896 09/05/89
Protein Absorption Enhancing Agents,
Administering Methylamine, Hydroxylamine or the
Non-toxic Hydrochlorides Intramuscularly US 4839170 06/13/89
Method of Reconstituting a Hazardous Material
in A Vial, Reliving Pressure Therein, and
Refilling a Dosage Syringe Therefrom US 4834149 05/30/89
Injection Method and Apparatus With Electrical
Blood Absorbing Stimulation US 4832682 05/23/89
Method of Enhancing the Effect of T-PA; Tissue-
type Plasminogen Activator US RE32919 05/09/89
Automatic Injector for Emergency Treatment US 4795433 01/03/89
Protein Thrombolytic Agent With Absorption
Enhancing Agent US 4772585 09/20/88
Hazardous Material Vial Apparatus Providing
Expansible Sealed and Filter Vented ▇▇▇▇▇▇▇▇ US 4768568 09/06/88
Automatic Medicament Ingredient Mixing and
Injecting Apparatus US 4755169 07/05/88
Disposable Hypodermic Syringe with Plastic
Snap-on Needle Hub and Heat Shrink Seal
Therefor US 4749839 05/31/88
Plural Dosage Automatic Injector with a By-pass
Fitment US 4723937 02/09/88
Cartridge with Universal ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ 12/15/87
- 2 -
174
Automatic Medicament Ingredient Mixing US 4689042 08/25/87
and Injecting Apparatus
Automatic Injector with Improved Glass
Container Protector US 4678461 07/07/87
T-PA Composition Capable of Being Absorbed
into the Blood Stream and Method of
Administration; Hydroxylamine, Hydroxylamine
Hydrochloride Disassociating Agent US 4661469 04/28/87
Method and Apparatus for Initiating Reperfusion
Treatment by an Unattended Individual Undergoing
Heart Attack Symptoms US 4658830 04/21/87
Absorption Enhancing Agents; Preventing Cytolysis US 4656034 04/07/87
Anti-Contamination Hazardous Material Package US 4645073 02/24/87
Audible Signal Autoinjector Training Device US 4640686 02/03/87
Split Hub Assembly for a Necked Down
Cartridge Tube US 4624393 11/25/86
Plural Dosage Automatic Injector With Improved
Safety US 4578064 03/25/86
Ambulatory Monitoring System with Real Time
Analysis and Telephone Transmission US 4531527 07/30/85
(**Assigned to: Brunswick Biomedical
Corporation)
Multiple Medicament Cartridge Clip and
Medicament Discharging Device Therefor US 4518384 05/21/85
Dual Mode Automatic Injector US 4484910 11/27/84
Plural Station Resuscitator US 4452241 06/05/84
Assembly for Administering Respiratory
Medicament Dosage Through a Gas
Mask US 4433684 02/28/84
- 3 -
175
Emergency Electrode US 4408610 10/11/83
Automatic Injector with Cartridge Having
Separate Sequentially Injectable Medicaments US 4394863 07/26/83
Plural Injection Assembly US 4329988 05/18/82
Wed Dry Syringe Package US 4328802 05/11/82
Stable Agueous Solutions of Pralidoxime
Salts; Cholinesterase Inhibitor and
Antidote Against Lethal Alleyl Phosphate
Intoxication
---------- ---------
Plural Injecting Device US 4226235 10/07/80
Stabilized Benactyzine Hydrochloride;
Propylene Ceycol, Water US 4212886 07/15/80
PENDING U.S. PATENT APPLICATIONS
TITLE FILING DATE
- 4 -
176
REGISTERED U.S. TRADEMARKS - SURVIVAL TECHNOLOGIES, INC.
REGISTRATION NO ▇▇▇▇ DATE
--------------- ---- ----
STI 1,839,313 06/14/94
STI 1,819,833 02/08/94
STI 1,703,058 07/28/92
STI 1,685,613 05/05/92
STI 1,760,636 03/23/93
Survival Technology, Inc. 1,701,601 07/21/92
Q-Pen 1,757,604 03/09/93
Ampsnapper 1,539,222 05/16/89
Thrombopen 1,445,020 06/30/87
Cyto Guard 1,481,501 03/22/88
Speedfit 1,288,834 08/07/94
Soluject 1,207,805 09/14/82
Surtech 1,038,155 04/20/76
Combo Pen 1,040,829 06/08/76
The Must for Rust 983,112 05/07/74
Lidojector 907,616 02/09/71
Lidopen Auto-Injector 914,015 06/08/71
- 5 -
177
RR 784,890 02/09/65
Atro Pen 600,077 12/28/54
H.E.L.P. 91,808 02/20/90
Hazard & Emergency-
Life Provisions 91,807 02/20/90
- 6 -
178
SCHEDULE C
PERMITTED LIENS
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
====================================================================================------------------------
The CIT Group/Equipment Sec. of State., MD 53458677 Main Isolater and
Financing, Inc. 12/8/95 Transfer Isolater # 1
Liber 3769 & 2
Folio 1034
------------------------------------------------------------------------------------------------------------
The CIT Group/Equipment Sec. of State., MD 53408089 Main Isolater and
Financing, Inc. 12/5/95 Transfer Isolater # 1
Liber 3769 & 2
Folio 0918
------------------------------------------------------------------------------------------------------------
The CIT Group/Equipment Sec. of State., MD 51568833 Various Production
Financing, Inc. 6/5/95 Equipment
Liber 3317
Folio 2313
------------------------------------------------------------------------------------------------------------
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Various Production
Group/Equipment MD 11/2/95 Equipment
Financing, Inc. Liber 0614
Folio 042
------------------------------------------------------------------------------------------------------------
Mitel Financial Sec. of State., MD 51258183 For notification of
Services ------------ lease only
5/5/95
151257266
Liber 3711
Folio 1297
------------------------------------------------------------------------------------------------------------
Mitel Financial Sec. of State., MD 50588076 For notification of
Services ------------ lease only
2/27/95
150587927
Liber 3693
Folio 0427
------------------------------------------------------------------------------------------------------------
Mitel Financial ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ For notification of
Services MD 5/10/95 lease only
Liber 0611
Folio 015
------------------------------------------------------------------------------------------------------------
179
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
====================================================================================------------------------
Mitel Financial ▇▇▇▇▇▇▇▇▇▇ County, 025384 For notification of
Services MD 2/28/95 lease only
Liber 0600
Folio 110
------------------------------------------------------------------------------------------------------------
Mitel Finance Sec. of State., MD 41098030 For notification of
Corporation ------------ lease only
4/9/94
141097721
Liber 3600
Folio 2079
------------------------------------------------------------------------------------------------------------
Mitel Finance Sec. of State., MD 132108274 For notification of
Corporation 7/29/93 lease only
------------------------------------------------------------------------------------------------------------
Mitel Finance ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ For notification of
Corporation MD 6/6/94 lease only
Liber 0562
Folio 089
------------------------------------------------------------------------------------------------------------
Mitel Finance ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ For notification of
Corporation MD Liber 0524 lease only
Folio 403
8/20/93
------------------------------------------------------------------------------------------------------------
Sanwa Business Sec. of State., MD 132108275 For notification of
Credit Corporation 7/29/93 lease only
Liber 3592
Folio 1343
------------------------------------------------------------------------------------------------------------
Sanwa Business Sec. of State., MD 31938506 For notification of
Credit Corporation 7/12/93 lease only
Liber 3524
Folio 2073
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ For notification of
Credit Corporation MD 9/17/93 lease only
Liber 0526
Folio 148
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ For notification of
Credit Corporation MD 9/17/93 lease only
Liber 0526
Folio 136
------------------------------------------------------------------------------------------------------------
180
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ For notification of
Credit Corporation MD 9/17/93 lease only
Liber 0522
Folio 190
------------------------------------------------------------------------------------------------------------
Syntex Laboratories, Sec. of State., MD 11588481 All equipment,
Inc. 7/15/93 fixtures, general
Liber 3335 intangibles relating to
Folio 0964 Syringes
------------------------------------------------------------------------------------------------------------
Syntex Laboratories, ▇▇▇▇▇▇▇▇▇▇ County, 07225 Equipment, fixtures,
Inc. MD 7/22/91 and general
Liber 0485 intangibles used in
Folio 525 the manufacture of
syringes
------------------------------------------------------------------------------------------------------------
ELLCO Leasing Sec. of State., MD 101577513 For notification of
Corporation 6/4/90 lease only
Liber 3245
Folio 0159
------------------------------------------------------------------------------------------------------------
ELLCO Leasing ▇▇▇▇▇▇▇▇▇▇ County, 089653 For notification of
Corporation MD 7/2/90 lease only
Liber 469
Folio 233
------------------------------------------------------------------------------------------------------------
Leasetec Corporation Sec. of State., MD 31938504 For notification of
7/12/93 lease only
Liber 3524
Folio 2078
------------------------------------------------------------------------------------------------------------
Leasetec Corporation Sec. of State., MD 131538375 For notification of
6/1/93 lease only
------------------------------------------------------------------------------------------------------------
Leasetec Corporation Sec. of State., MD 31938506 For notification of
7/12/93 lease only
Liber 3524
Folio 2073
------------------------------------------------------------------------------------------------------------
181
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ For notification of
MD 7/21/93 lease only
Liber 0522
Folio 415
------------------------------------------------------------------------------------------------------------
Citicorp Industrial Sec. of State., MD 43078290 ▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇
Credit 11/2/84 Modem
------------------------------------------------------------------------------------------------------------
Citicorp Industrial Sec. of State., MD 42588089 Microdata Terminals
Credit 9/14/84 and Communications
Controller
------------------------------------------------------------------------------------------------------------
Citicorp Industrial ▇▇▇▇▇▇▇▇▇▇ County, 41927 ▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇
Credit MD Liber 0373 Modem
Folio 319
10/31/94
------------------------------------------------------------------------------------------------------------
Citicorp Industrial ▇▇▇▇▇▇▇▇▇▇ County, 42555 Microdata Terminals
Credit MD Liber 037 and Communications
Folio 462 Controller
12/4/94
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Sec. of State, MD 133167692 Blanket Lien
Business Financial 11/10/93
Services, Inc. Liber 3559
Folio 2625
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ County, 14132 Blanket Lien
Business Financial MD 11/10/93
Services, Inc. Liber 531
Folio 85
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First Pennsylvania ▇▇▇▇▇▇▇▇▇▇ County, 4/11/89 Blanket Lien
Bank, N.A. MD Liber 8773
Folio 283
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First Pennsylvania ▇▇▇▇▇▇▇▇▇▇ County, 84085 Blanket Lien
Bank, N.A. MD 5/24/77
Liber 0278
Folio 163
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▇▇▇▇▇▇▇ ▇▇▇▇▇ Sec. of State, NJ 1539195 Blanket Lien
Business Financial 11/9/93
Services, Inc.
------------------------------------------------------------------------------------------------------------
182
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
====================================================================================------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Sec. of State., CT 1034917 Blanket Lien
Business Financial 11/9/93
Services, Inc.
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▇▇▇▇▇▇▇ ▇▇▇▇▇ Sec. of State, VT 93-36492 Blanket Lien
Business Financial 11/9/93
Services, Inc.
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Town Clerk, VT 93-52 Blanket Lien
Business Financial 11/12/93
Services, Inc.
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▇▇▇▇▇▇▇ ▇▇▇▇▇ Prothonotary of ▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ 11/9/93
Services, Inc.
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▇▇▇▇▇▇▇ ▇▇▇▇▇ Prothonotary of ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ Lien
Business Financial ▇▇▇▇▇▇▇ County, PA 11/9/93
Services, Inc.
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▇▇▇▇▇▇▇ ▇▇▇▇▇ Prothonotary of Vol 79 Blanket Lien
Business Financial Berks County, PA Page 683
Services, Inc. 11/9/96
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▇▇▇▇▇▇▇ ▇▇▇▇▇ Sec. of State, PA 22570546 Blanket Lien
Business Financial 11/9/93
Services, Inc.
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Prothonotary of 244337 Blanket Lien
Business Financial ▇▇▇▇▇▇▇▇▇▇ County, 11/9/93
Services, Inc. PA
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ELLCO Leasing Sec. of State, MO 1876773 For notification of
Corporation 6/4/90 lease only
------------------------------------------------------------------------------------------------------------
Liquid Carbonic Corp. Sec. of State, MO 2029030 For notification of
8/5/91 lease only
------------------------------------------------------------------------------------------------------------
Sanwa Business Credit Sec. ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ Leased Equipment
Corporation 4/19/93
------------------------------------------------------------------------------------------------------------
Sawna Business Credit Sec. ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ Leased Equipment
Corporation 4/19/93
-------------------------------------------------------------------------------------------------------------
183
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ Leased Equipment
Credit Corporation 5/17/93
------------------------------------------------------------------------------------------------------------
Mitel Finance Sec. of State, MO 2293314 Leased Equipment
Corporation 7/29/93
------------------------------------------------------------------------------------------------------------
Mitel Finance Sec. of State, MO 2393057 Leased Equipment
Corporation 4/18/94
------------------------------------------------------------------------------------------------------------
The CIT Group/Equipment Sec. of State, MO 2488198 Leased Equipment
Financing, Inc. 12/29/94
------------------------------------------------------------------------------------------------------------
The CIT Group/Equipment Sec. of State, MO 2545824 Leased Equipment
Financing, Inc. 5/30/95
------------------------------------------------------------------------------------------------------------
The CIT Group/Equipment Sec. of State, MO 2609055 Specific Equipment
Financing, Inc. 12/5/95
------------------------------------------------------------------------------------------------------------
First Untied Leasing Sec. of State, MO 2576721 Precautionary filing for
8/28/95 lease
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BioMerieux Vitex, Inc. Sec. ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ Computer equipment
9/22/95
------------------------------------------------------------------------------------------------------------
Trinity Capital Sec. of State, MO 2609774 Precautionary filing for
Corporation 12/8/95 lease
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Sec. of State, MO 2330337 Blanket Lien
Financial Services, Inc. 11/9/93
============================================================================================================
184
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
============================================================================================================
Syntex Laboratories Sec. of State, MO 1995589 All equipment, fixtures
4/30/91 and general intangibles
relating to Syringes
------------------------------------------------------------------------------------------------------------
Xerox Corporation Sec. of State, MO 2217487 Xerox model 10/90
1/22/93
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Sanwa Business Credit ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Mitel 46
Corp. Missouri 4/20/93 30QD0035/A6A
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Mitel 54
Corp. Missouri 4/20/93 30QD0035/A1
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Mitel 60
Corp. Missouri 5/14/93 30QD0035/A5A
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▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Blanket Lien
Financial Services Missouri 11/9/93
------------------------------------------------------------------------------------------------------------
Mitel Finance ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 4/20/94 Mitel 175
Corporation 30QD0035/ AB
------------------------------------------------------------------------------------------------------------
Syntex Laboratories ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ All equipment fixtures
Missouri 4/29/91 and general intangibles
------------------------------------------------------------------------------------------------------------
Xerox Corporation St. Louis County, 14467 Xerox copier
Missouri 4/29/91
------------------------------------------------------------------------------------------------------------
185
============================================================================================================
DEBTOR: SURVIVAL TECHNOLOGY, INC.
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Precautionary Filing for
Missouri 12/29/94 Leased Equipment
------------------------------------------------------------------------------------------------------------
Mitel Financial Services St. Louis County, 007138 Precautionary Filing for
Missouri 6/2/95 Leased Equipment
------------------------------------------------------------------------------------------------------------
Mitel Financial St. Louis County, 007140 Leased Equipment
Services Missouri 6/2/95
------------------------------------------------------------------------------------------------------------
Trinity ▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ Leased Equipment
Corporation Missouri 12/7/95
------------------------------------------------------------------------------------------------------------
186
============================================================================================================
DEBTOR: BRUNSWICK BIOMEDICAL CORPORATION
============================================================================================================
SECURED PARTY JURISDICTION FILE NO./DATE COLLATERAL
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ All receivables arising
Inc. 4/28/95 from "Net Sales" and all
MD Intellectual Property
------------------------------------------------------------------------------------------------------------
Survival Technology, Marlborough Office of 36421 All receivables arising
Inc. Town Clerk 4/28/95 from "Net Sales" and all
MD Intellectual Property
------------------------------------------------------------------------------------------------------------
Survival Technology, Sec. of State, PA 24230949 Housing molds and
Inc. 4/28/95 circuits board tool and
Hot stamping tool
------------------------------------------------------------------------------------------------------------
Survival Technology, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇-▇▇▇▇▇ No exhibits
Inc. 4/28/95
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Survival Technology, Sec. of State, IL 3394160 Label Plate
Inc. 4/28/95
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇. ▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ Various molds
Inc. 4/28/95
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