Exhibit 10.7(i)
CONCURRENT COMPUTER CORPORATION
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of June 29, ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, N.A.
and
CIBC Inc.
TABLE OF CONTENTS
This Table of Contents is not part of the Agreement to which
it is attached but is inserted for convenience only.
Page
Section 1. Definitions and Accounting Matters 1
1.01. Certain Defined Terms 1
1.02. Accounting Terms and Determinations 6
1.03. Dollar Equivalents 7
Section 2. Tinton Falls Fee and Restructuring Fee 7
Section 3. The Standby L/C s; Several Obligations, Etc 8
3.01 The Standby L/C s 8
3.02 Several Obligations, Etc 9
3.03. Intentionally Omitted . . . . . . . . . . . . . . 9
3.04. Intentionally Omitted . . . . . . . . . . . . . . .9
3.05. Intentionally Omitted . . . . . . . . . . . . . . 10
Section 4. Intentionally Omitted . . . . . . . . . . . . . . 10
Section 5. Payments; Pro Rata Treatment; Computations; Etc . 10
5.01. Payments. . . . . . . . . . . . . . . . . . . . . 10
5.02. Pro Rata Treatment. . . . . . . . . . . . . . . . 10
5.03. Computations. . . . . . . . . . . . . . . . . . . 10
5.04. Intentionally Omitted . . . . . . . . . . . . . . 11
5.05. Intentionally Omitted . . . . . . . . . . . . . . 11
5.06. Intentionally Omitted . . . . . . . . . . . . . . 11
5.07. Sharing of Payments, Etc. . . . . . . . . . . . . 11
Section 6. Yield Protection, Etc . . . . . . . . . . . . . . 12
6.01. Additional Costs. . . . . . . . . . . . . . . . . 12
6.02. Intentionally Omitted . . . . . . . . . . . . . . 12
Section 7. Conditions Precedent. . . . . . . . . . . . . . . 12
7.01. Conditions. . . . . . . . . . . . . . . . . . . . 12
7.02. Intentionally Omitted . . . . . . . . . . . . . . 15
Section 8. Representations and Warranties. . . . . . . . . . 15
8.01. Corporate Organization and Existence. . . . . . . 15
8.02. Subsidiaries. . . . . . . . . . . . . . . . . . . 15
8.03. Financial Information . . . . . . . . . . . . . . 15
8.04. Changes in Condition. . . . . . . . . . . . . . . 16
8.05. Assets. . . . . . . . . . . . . . . . . . . . . . 16
8.06. Litigation. . . . . . . . . . . . . . . . . . . . 16
8.07. Tax Returns . . . . . . . . . . . . . . . . . . . 16
8.08. No Legal Obstacle to Agreement. . . . . . . . . . 17
8.09. Defaults. . . . . . . . . . . . . . . . . . . . . 17
8.10. ERISA . . . . . . . . . . . . . . . . . . . . . . 17
8.11. Foreign Trade Regulations; . . . . . . . . . . . 18
8.12. Outstanding Indebtedness. . . . . . . . . . . . . 18
8.13. Disclosure. . . . . . . . . . . . . . . . . . . . 18
8.14. Intentionally Omitted . . . . . . . . . . . . . . 18
8.15. Hazardous Materials . . . . . . . . . . . . . . . 18
8.16. Security Documents. . . . . . . . . . . . . . . . 20
Section 9. Covenants of the Company. . . . . . . . . . . . . 21
9.01. Financial Statements. . . . . . . . . . . . . .. . . . 21
9.02. Intentionally Omitted . . . . . . . . . . . . . . 23
9.03. Existence . . . . . . . . . . . . . . . . . . . 23
9.04. Insurance . . . . . . . . . . . . . . . . . . . . 24
9.05. Prohibition of Fundamental Changes. . . . . . . . 24
9.06. Limitation on Liens . . . . . . . . . . . . . . 25
9.07. Indebtedness. . . . . . . . . . . . . . . 26
9.08. Intentionally Omitted . . . . . . . . . . . . . . 27
9.09. Intentionally Omitted . . . . . . . . . . . . . 27
9.10. Intentionally Omitted . . . . . . . . . . . . . . 27
9.11. Capital Expenditures. . . . . . . . . . . . . . 27
9.12. Intentionally Omitted . . . . . . . . . . . . . . 28
9.13. Lines of Business . . . . . . . . . . . . . . . 28
9.14. Intentionally Omitted . . . . . . . . . . . . . . 28
9.15. Intentionally Omitted . . . . . . . . . . . . . . 28
9.16. Certain Obligations Respecting Subsidiaries . . . 28
9.17. Intentionally Omitted . . . . . . . . . . . . . . 28
9.18. Intentionally Omitted . . . . . . . . . . . . . 28
9.19. Intentionally Omitted . . . . . . . . . . . . . . 28
9.20. Leases. . . . . . . . . . . . . . . . . . . 28
9.21. Intentionally Omitted . . . . . . . . . . . . 29
9.22. Intentionally Omitted . . . . . . . . . . . . 29
9.23. Intentionally Omitted . . . . . . . . . . . . . . 29
9.24. Disposition of Assets . . . . . . . . . . . . . . 29
9.25. Intentionally Omitted . . . . . . . . . . . . . . 30
9.26. Intentionally Omitted . . . . . . . . . . . . . 30
9.27. Intentionally Omitted . . . . . . . . . . . . . . 30
9.28. Intentionally Omitted . . . . . . . . . . . . . . 30
9.29. Intentionally Omitted . . . . . . . . . . . . . 30
9.30. Intentionally Omitted . . . . . . . . . . . . . . 30
9.31. Intentionally Omitted . . . . . . . . . . . . . . 30
9.32. Intentionally Omitted . . . . . . . . . . . . . . 30
9.33. Intentionally Omitted . . . . . . . . . . . . 30
9.34. Intentionally Omitted . . . . . . . . . . . . . 30
9.35. Intentionally Omitted . . . . . . . . . . . . . . 30
9.36. Intentionally Omitted . . . . . . . . . . . . 30
9.37. Intentionally Omitted . . . . . . . . . . . . . . 30
9.38. Financing Statements, Etc . . . . . . . . . . . 30
Section 10. Specified Events and Events of Default. . . . . . 30
Section 11. Acknowledgment of Agency, Etc . . . . . . . . . . 34
Section 12. Miscellaneous . . . . . . . . . . . . . . . . . 34
12.01. Waiver. . . . . . . . . . . . . . . . . . . . . 34
12.02. Notices . . . . . . . . . . . . . . . . . . . . . 34
12.03. Expenses, Etc . . . . . . . . . . . . . . . . . 34
12.04. Amendments, Etc . . . . . . . . . . . . . . . . . 35
12.05. Successors and Assigns. . . . . . . . . . . . . 36
12.06. Assignments and Participations. . . . . . . . . 36
12.07. Survival. . . . . . . . . . . . . . . . . . 37
12.08. Captions. . . . . . . . . . . . . . . . . . . . 37
12.09. Counterparts. . . . . . . . . . . . . . . . . 37
12.10. Governing Law; Submission to Jurisdiction . . . 37
12.11. Waiver of Jury Trial. . . . . . . . . . . . . . . 37
12.12. No Third Party Beneficiaries. . . . . . . . . . 38
12.13. Entire Agreement. . . . . . . . . . . . . . . . 38
12.14. Severability. . . . . . . . . . . . . . . . . 38
SCHEDULE 8.02 - Subsidiaries
SCHEDULE 8.04 - Changes in Condition
SCHEDULE 8.06 - Litigation
SCHEDULE 8.09 - Defaults
SCHEDULE 8.10 - ERISA
SCHEDULE 8.11 - Foreign Trade Regulations; Government Regulations
SCHEDULE 8.12 - Outstanding Indebtedness
SCHEDULE 8.15 - Hazardous Materials
SCHEDULE
SCHEDULE 9.06 - Existing Liens
SCHEDULE 9.07 - Indebtedness
EXHIBIT A
- Form of
Section 9.01 Compliance Certificate
THIRD AMENDED AND RESTATED CREDIT AGREEMENT dated as of
June 29, 1995, between: Concurrent Computer Corporation, a corporation duly
organized and validly existing under the law of the State of Delaware (the
Company ) as
borrower; Fleet Bank of Massachusetts, N.A. ( Fleet ) and CIBC Inc., a
corporation duly
organized and validly existing under the law of the State of Delaware ( CIBC )
as
lenders (individually, a Lender and, collectively, the Lenders ); and Fleet
as agent for
the Lenders (in such capacity, together with its successors in such capacity,
the Agent ).
Recitals
A. The Company, the Lenders and the Agent are parties to a Second
Amended and Restated Credit Agreement dated as of July 21, 1993, as amended (the
1993 Credit Agreement ), which amended and restated an Amended and Restated
Credit Agreement dated as of October 11, 1991, as amended (the 1991 Credit
Agreement ).
B. The Company has advised the Lenders and the Agent that it wishes to
pay
in full the Terms Loans in connection with a comprehensive refinancing,
provided the
Lenders agree to extend the expiry dates of the Standby L/C s as hereinafter
defined.
C. This Agreement is intended to amend and restate the 1993 Credit
Agreement.
In exchange of the mutual covenants in this Agreement and
other good and valuable consideration, receipt of which is hereby
acknowledged, the Company, the Agent
and the Lenders hereby amend and restate the 1993 Credit Agreement in its
entirety as
follows, and agree to the following terms, conditions and provisions:
Section 1. Definitions and Accounting Matters.
1.01. Certain Defined Terms. As used herein, the following terms
shall have the
following meanings (all terms defined in this Section 1.01 or in other
provisions of this
Agreement in the singular to have the same meanings when used in the plural
and vice
versa):
Affiliate shall mean any Person which directly or indirectly controls,
or is under
common control with, or is controlled by, the Company. As used in this
definition,
control (including, with its correlative meanings, controlled by and
under common
control with ) shall mean possession, directly or indirectly, of power to
direct or cause the
direction of management or policies (whether through ownership of securities
or
partnership or other ownership interests, by contract or otherwise), provided
that, in any
event, any Person which owns directly or indirectly 5% or more of the
securities having
ordinary voting power for the election of directors or other governing body of a
corporation or 5% or more of the partnership or other ownership interests of any
other
Person (other than as a limited partner of such other Person) will be deemed to
control
such corporation or other Person. Notwithstanding the foregoing, no individual
shall be
deemed to be an Affiliate solely by reason of his or her being a director,
officer or
employee of the Company or any of its Subsidiaries and the Company and its
Subsidiaries
shall not be deemed to be Affiliates of each other.
Amended Intercreditor Agreement shall mean the Amended and Restated
Intercreditor Agreement dated as of July 21, 1993 executed in connection with
the 1993
Credit Agreement, as the same shall be amended, modified and supplemented and in
effect from time to time.
Amended Security Agreement shall mean the Amended and Restated Security
Agreement dated as of October 11, 1991 executed in connection with the 1991
Credit
Agreement, as amended by First Amendment to Amended and Restated Security
Agreement dated as of June 30, 1993 and Second Amendment to Amended and Restated
Security Agreement dated as of July 21, 1993, as such Amended and Restated
Security
Agreement shall be further amended, modified and supplemented and in effect
from time
to time.
Banking Day shall mean any day on which commercial banks are not
authorized
or required to close in Boston, Massachusetts.
Basic Documents shall mean, collectively, this Agreement, the Standby
L/C s, the
Standby L/C Applications and the Security Documents.
Closing Date shall mean the date on which the conditions set forth in
Section 7
are satisfied and this Agreement becomes effective.
CNC shall mean Concurrent Nippon Corporation, a Japanese corporation.
Code shall mean the Internal Revenue Code of 1986, as amended from time
to
time.
Default shall mean an Event of Default or an event which with notice or
lapse of
time or both would become an Event of Default.
Disposition shall mean any sale, assignment, lease, transfer or other
disposition
of any Property (whether now owned or hereafter acquired) by the Company or any
of its
Subsidiaries to any Person excluding any sale, assignment, lease, transfer or
other
disposition of any Property sold, assigned, leased, transferred or otherwise
disposed of in
the ordinary course of business and on ordinary business terms, but excluding
in all
events any Equity Issuance.
Dollars and $ shall mean lawful money of the United States of America.
Domestic Subsidiary shall mean each Subsidiary of the Company that is
not a
Foreign Subsidiary.
Federal Funds Rate shall mean, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal
Reserve Bank of New York on the Banking Day next succeeding such day, provided
that
(i) if the day for which such rate is to be determined is not a Banking Day,
the Federal
Funds Rate for such day shall be such rate on such transactions on the next
preceding
Banking Day as so published on the next succeeding Banking Day, and (ii) if
such rate is
not so published for any Banking Day, the Federal Funds Rate for such day
shall be the
rate on such day on such transactions as determined by the Agent.
Foothill shall mean Foothill Capital Corporation.
Foreign Subsidiary shall mean each Subsidiary of the Company not
organized
under the laws of the United States of America or any State thereof or that
conducts
substantially all of its business activities outside the United States.
GAAP shall mean generally accepted accounting principles as in effect
from time
to time, subject to the provisions of Section 1.02 hereof.
Guarantee shall mean a guarantee, an endorsement, a contingent
agreement to
purchase or to furnish funds for the payment or maintenance of, or otherwise
to be or
become contingently liable under or with respect to, the Indebtedness, other
obligations,
net worth, working capital or earnings of any Person, or a guarantee of the
payment of
dividends or other distributions upon the stock or equity interests of any
Person, or an
agreement to purchase, sell or lease (as lessee or lessor) Property, products,
materials,
supplies or services primarily for the purpose of enabling a debtor to make
payment of
his, her or its obligations or an agreement to assure a creditor against loss,
and including,
without limitation, causing a bank or other financial institution to issue a
letter of credit
or other similar instrument for the benefit of another Person, or any
obligation or
agreement to issue any of the foregoing, but excluding endorsements for
collection or
deposit in the ordinary course of business. The terms Guarantee and
Guaranteed
used as a verb shall have a correlative meaning.
Indebtedness shall mean, for any Person: all liabilities reflected on a
balance
sheet prepared in accordance with GAAP except for capital items including, but
not
limited to, (a) all indebtedness for trade obligations, (b) indebtedness
created, issued or
incurred by such Person for borrowed money (whether by loan or the
issuance and sale
of debt securities or the sale of Property to another Person subject to an
understanding
or agreement, contingent or otherwise, to repurchase such Property from such
Person);
(c) obligations of such Person to pay the deferred purchase or acquisition
price
of
Property or services; (d) indebtedness of others secured by a Lien on the
Property of
such Person, whether or not the respective indebtedness so secured has been
assumed by
such Person; (e) obligations of such Person in respect of letters of credit or
similar
instruments issued or accepted by banks and other financial institutions for the
account of
such Person; (f) Capital Lease Obligations of such Person (and excluding
obligations
under leases not required to be capitalized in accordance with GAAP); (g)
Indebtedness
of others Guaranteed by such Person; and (h) any Interest Rate Protection
Agreement to
which such Person is a party, the outstanding principal amount of which (or the
exposure with respect thereto) to be deemed for purposes of this Agreement
to be at
any time determined at such time in accordance with the standard methods of
calculating
such exposure under similar arrangements as prescribed from time to time by
the Agent
(or, if any Lender is a party to such Agreement, such Lender), taking into
account the
respective termination provisions set forth therein, the notional principal
amount and
term thereof and assuming that U.S. Treasury rates generally are equal to the
per annum
rate of interest which the Agent (or such Lender) at such time determines to be
the most
probable lowest U.S. Treasury rate to occur in the relevant period following
such date.
Lending Office shall mean, for each Lender, the Lending Office of
such
Lender (or of an affiliate of such Lender) designated on the signature pages
hereof or
such other office of such Lender (or of an affiliate of such Lender) as such
Lender may
from time to time specify to the Agent and the Company as the office by which
its Term
Loans are to be maintained.
Lien shall mean, with respect to any Property, any mortgage, lien,
pledge,
charge, security interest, option or right of first refusal or other encumbrance
of any kind
in respect of such Property. For purposes of this Agreement, the Company or
any of its
Subsidiaries shall be deemed to own subject to a Lien any Property which it
has acquired
or holds subject to the interest of a vendor or lessor under any conditional
sale
agreement, capital lease or other title retention agreement (other than an
operating
lease) relating to such Property.
Majority Lenders shall mean (a) if there are no outstanding L/C
Advances, Fleet
and CIBC, and (b) if there are outstanding L/C Advances, the Lender or
Lenders which
individually or in the aggregate holds or hold at least 67% of such
outstanding L/C
Advances. For purposes of clause (b) above, there shall be excluded any
outstanding L/C
Advances directly or indirectly held by the Company, any of its Subsidiaries
or any of
their respective Affiliates following an assignment or participation as
contemplated by
Section 12.06 hereof.
Margin Stock shall mean margin stock within the meaning of Regulations U
and X.
Material Adverse Effect shall mean a material adverse effect on (a)
the Property,
business, operations, financial condition, liabilities or capitalization of
the Company and
its Subsidiaries taken as a whole, (b) the ability of the Company to perform
its obligations
under any of the Basic Documents, (c) the validity or enforceability of any of
the Basic
Documents, (d) the rights and remedies of the Lenders and the Agent under
any of the
Basic Documents or (e) the timely payment of the principal of or interest
on the Term
Loans or other amounts payable in connection therewith.
Mortgage shall mean the Mortgage Security Agreement and Assignment of
Leases and Rents dated as of September 27, 1988 made by the Company covering the
respective properties and leasehold interests identified in Exhibit A thereto,
as amended
by a Mortgage Modification Agreement dated November 14, 1991 (as amended by
Assignment of Mortgage and First Amendment to Mortgage Modification Agreement
dated as of June 30, 1993) and Second Mortgage Modification Agreement dated
as of
July 21, 1993, as such Mortgage shall be further amended, modified and
supplemented
and in effect from time to time.
1991 Credit Agreement shall have the meaning assigned to such term in
Recital A hereof.
1994 Form 10-K shall have the meaning assigned to such term in Section
8.03(i)
hereof.
1993 Credit Agreement shall have the meaning assigned to such term in
Recital
A hereof.
Patent Assignment shall mean the Patent Assignment of Security
executed in
connection with the 1993 Credit Agreement, as amended, modified
and supplemented
and in effect from time to time.
PBGC shall mean the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
Person shall mean any individual, corporation, company, voluntary
association,
partnership, joint venture, trust, unincorporated organization or government
(or any
agency, instrumentality or political subdivision thereof).
Pledge Agreements shall mean the Pledge Agreements executed in
connection
with the 1991 Credit Agreement, relating to the Company s pledge to the
Agent of all or
a portion of its ownership interest in the Foreign Subsidiaries for the
ratable benefit of
the Lenders to secure the Company s obligations under, among other
things, the 1991
Credit Agreement, as amended by First Amendment to Pledge Agreements
dated as of
June 30, 1993 and Second Amendment to Pledge Agreements dated as of
July 21, 1993,
as such Pledge Agreements shall be further amended, modified and supplemented
and in
effect from time to time.
Post-Default Rate shall mean a rate per annum equal to the Prime Rate
plus 4%
per annum.
Prime Rate shall mean the greater of (a) the rate of interest from
time to time
announced and made effective by the Agent as its Prime Rate , and (b) the
Federal
Funds Rate plus 1/2 of 1% per annum.
Property shall mean any right or interest in or to property of any
kind
whatsoever, whether real, personal or mixed and whether tangible or intangible.
Regulations U and X shall mean, respectively, Regulations U and X of the
Board of Governors of the Federal Reserve System (or any successor), as the same
may
be amended or supplemented from time to time.
Security Documents shall mean, collectively, the Amended Security
Agreement,
the Pledge Agreements, the Mortgage, the Trademark Assignment, Patent
Assignment
and all Uniform Commercial Code financing statements required by this
Agreement to be
filed with respect to the security interests in personal Property and
fixtures created
thereunder.
Specified Event shall have the meaning assigned to such term in
Section 10
hereof.
Standby L/C Applications shall mean collectively each Application and
Agreement for Standby Letters of Credit executed by the Company on or about
November 12, 1993 in connection with the issuance of the Standby L/C s, as such
Applications shall be amended, modified and supplemented and in effect from time
to
time.
Standby L/C s shall mean the three standby letters of credit issued
pursuant to
the 1993 Credit Agreement by Fleet in favor of the Industrial Bank of Japan,
Limited,
The Sumitomo Bank, Limited and The Mitsubishi Bank, Limited in the respective
amounts of $1,800,000, $800,000 and $400,000, as amended by respective
amendments
dated June 22, 1995, as such letters of credit shall be further amended,
modified and
supplemented and in effect from time to time.
Subsidiary shall mean, for any Person, any corporation, partnership or
other
entity of which at least a majority of the securities or other ownership
interests having by
the terms thereof ordinary voting power to elect a majority of the board of
directors or
other persons performing similar functions of such corporation, partnership
or other
entity (irrespective of whether or not at the time securities or other
ownership interests of
any other class or classes of such corporation, partnership or other entity
shall have or
might have voting power by reason of the happening of any contingency) is at
the time
directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of
such Person or by such Person and one or more Subsidiaries of such Person.
Wholly-Owned Subsidiary shall mean any such corporation, partnership or
other entity
of which all of such securities or other ownership interests (other than, in
the case of a
corporation, directors qualifying shares, minority interests issued to
satisfy statutory
requirements, or, in the case of the Subsidiaries listed on Schedule 8.02
hereto, shares
owned by The ▇▇▇▇▇▇-▇▇▇▇▇ Corporation if such shares do not exceed 2% of the
outstanding common stock of such Subsidiary), are so owned or controlled.
Term Loans shall mean the loans provided for by Sections 2.01 and 3.01
of the
1993 Credit Agreement.
Trademark Assignment shall mean the Trademark Assignment of Security
executed in connection with the 1993 Credit Agreement, as amended, modified and
supplemented and in effect from time to time.
1.02. Accounting Terms and Determinations.
(a) Except as otherwise expressly provided herein, all accounting
terms
used herein shall be interpreted, and all financial statements and certificates
and reports
as to financial matters required to be delivered to the Lenders hereunder shall
(unless
otherwise disclosed to the Lenders in writing at the time of delivery thereof in
the
manner described in subsection (b) below) be prepared, in accordance with
generally
accepted accounting principles applied on a basis consistent with those used in
the
preparation of the financial statements contained in the 1994 10-K. All
calculations made
for the purposes of determining compliance with the terms of the financial
covenants
contained in this Agreement shall (except as otherwise expressly provided
herein) be
made by application of generally accepted accounting principles applied on a
basis
consistent with those used in the preparation of the annual financial
statements furnished
to the Lenders pursuant to Section 9.01(b) hereof unless (i) the Company shall
have
objected to determining such compliance on such basis at the time of delivery
of such
financial statements or (ii) the Majority Lenders shall so object in writing
within 30 days
after delivery of such financial statements, in either of which events such
calculations
shall be made on a basis consistent with those used in the preparation of the
latest
annual financial statements as to which such objection shall not have been
made.
(b) The Company shall deliver to the Lenders at the same time as the
delivery of any annual or quarterly financial statement under Section 9.01
hereof a
description in reasonable detail of any material variation between the
application of
accounting principles employed in the preparation of the next preceding annual
financial
statements as to which no objection has been made in accordance with the last
sentence
of subsection (a) above, and reasonable estimates of the difference between
such
statements arising as a consequence thereof.
(c) To enable the ready and consistent determination of compliance
with the covenants set forth in Section 9 hereof, the Company will not change
the last
day of its fiscal year from June 30 of each year, or the last days of the
first three fiscal
quarters in each of its fiscal years from September 30, December 31 and
March 31,
respectively.
1.03. Dollar Equivalents. As used in this Agreement, the Dollar
Equivalent of
any amount of foreign currency shall be (unless otherwise specified) the
amount of such
foreign currency converted to Dollars using the New York foreign exchange
selling rate
for such currency quoted in The Wall Street Journal for the date on which such
amount
was paid (or, if Indebtedness, incurred) or if such rate was not so quoted for
such date,
for the nearest preceding date for which such foreign exchange rate was so
quoted.
Section 2. Tinton Falls Fee and Restructuring Fee. Notwithstanding
the
amendment and restatement of the 1993 Credit Agreement (a) and the payment in
full of
the Term Loans, the obligations of the Company to pay a fee ( Tinton Falls Fee )
to
Fleet Bank and Barclays Bank PLC upon the sale of the Tinton Falls Facility
pursuant to
a certain letter agreement by and between the Company, Barclays Bank PLC and
Fleet
dated March 1, 1993, shall not be superseded hereby and shall continue in
effect as an
obligation of the Company, to be calculated in accordance with such letter, and
(b) the
obligations of the Company to pay the $50,000 balance of the amendment and
restructuring fee ($26,190 to Fleet and $23,810 to CIBC) pursuant to Amendment
No. 6
to Second Amended and Restated Credit Agreement between the Lenders and the
Company dated as of February 28, 1995 ( Restructuring Fee ), shall not be
superseded
hereby and shall continue in effect as an obligation of the Company, to be paid
in
accordance with such Amendment.
Section 3. The Standby L/C s; Several Obligations, Etc.
3.01 The Standby L/C s.
(a) The payment by Fleet of a draft drawn under any Standby L/C shall
constitute an L/C Advance. Upon written demand by Fleet to CIBC, CIBC shall
purchase from Fleet, and Fleet shall sell and assign to CIBC, a percentage of
such L/C
Advance equal to the product of the L/C Advance and CIBC's pro rata interest in
the
outstanding principal due under the Term Loans immediately prior to the
execution
hereof, by paying Fleet an amount equal to such product. The Company hereby
agrees
to any such sale and assignment. CIBC agrees to purchase its pro rata share
of any L/C
Advance on (a) the Banking Day on which demand therefor is made by Fleet,
provided
that notice of such demand is given not later than 1:00 p.m. (Boston time) on
such
Banking Day or (b) the first Banking Day next succeeding such demand if notice
of the
demand is given after such time and in each case such obligation shall be
absolute and
unconditional, notwithstanding the occurrence or continuation of a Default.
In the event
CIBC shall not have so purchased its pro rata share of an L/C Advance in a
timely
fashion, CIBC agrees to pay Fleet interest at the Federal Funds Rate on its pro
rata
share thereof for each day from the date of demand by Fleet until the date such
amount
is paid to Fleet.
(b) The Company shall pay to the Agent (for the account of Fleet and
CIBC in accordance with their respective pro rata interests in the Term Loans
held by
them immediately prior to the execution hereof) letter of credit fees as
follows: for the
period June 29, 1995 through June 30, 1996, a fee of three percent (3%) per
annum on
the aggregate of the face amounts of the Standby L/C s, payable in
equal quarterly payments on June 30, 1995, October 1, 1995,
January 1, 1996 and April 1, 1996; (ii) for the period
June 30, 1996 through June 30, 1997, a fee of four percent (4%)
per annum on the aggregate of the face amounts of the Standby L/C s
payable in equal quarterly
payments on July 1, 1996, October 1, 1996, January 1, 1997
and April 1, 1997; and(iii) for the period June 30, 1997 through June 30, 1998,
a fee of
five percent (5%) per annum on the aggregate face amounts of the
Standby L/C s, payable in equal quarterly
payments on July 1, 1997, October 1, 1997, January 1, 1998
and April 1, 1998.
(c) On the date of an L/C Advance, the Company shall repay Fleet
(for
its account and for the account of CIBC to the extent CIBC has purchased a pro
rata
share of such L/C Advance) the outstanding amount of such L/C Advance.
In the event
the Company fails to so repay Fleet on such date, until repayment of the
subject L/C
Advance, the Company shall pay to Fleet (for its account and for the account of
CIBC to
the extent CIBC has purchased a pro rata share of such Advance) interest on
such
amount at the Post-Default Rate.
(d) The expiry date of the Standby L/C s shall be
extended to August 1,1998. Fleet promptly shall execute and
deliver to the beneficiaries of the Standby L/C s,
and to the advising bank with respect thereto, appropriate amendments of the
Standby
L/C s reflecting such extension, and to the extent necessary, shall use
its best efforts to
obtain the consent of such beneficiaries to such amendments, and the
agreement of the
advising bank with respect thereto to continue to act in such capacity with
respect to such
Standby L/C s as so amended.
(e) Upon the occurrence of the Specified Event referenced in clause
(1) of Section 10, on demand, the Company shall forthwith deposit with the
Agent an
amount of cash equal to the undrawn amounts of the Standby L/C s. Such amount
shall
be deposited in a cash collateral account to be established by the Agent, for
the benefit
of the Lenders and shall constitute collateral security for all obligations of
the Borrower
relating to the Standby L/C s. All amounts in such cash collateral account
shall be
subject to the exclusive dominion and control (including exclusive rights of
withdrawal) of
the Agent over all such amounts and may be evidenced by a supplementing
agreement
satisfactory in form and substance to the Agent.
(f) The Company acknowledges and agrees that the Standby L/C
Applications are enforceable against it in all respects as if it were the
Customer under each such Application.
3.02. Several Obligations, Etc.
(a) The amounts payable by the Company at any time hereunder to
each Lender shall be a separate and independent debt and each Lender shall be
entitled
to protect and enforce its rights arising out of this Agreement, and it shall
not be
necessary for any other Lender or the Agent to consent to, or be joined as an
additional
party in, any proceedings for such purposes. Nothing in this Section shall
override or
otherwise modify the requirements for action under the Security Documents
provided for
in this Agreement or in the Security Documents.
(b) If any Lender (or receiver, liquidator or similar entity on its
behalf)
should default in any of its obligations hereunder to effectuate any required
sharing with
another Lender or to make any other payment to the Agent or another Lender, or
shall
repudiate or disaffirm (or purport to disaffirm) any of the foregoing
obligations, then
such defaulting Lender shall not be entitled to share in any payments,
prepayments or
other distributions under this Agreement or any Security Document, whether from
any
collateral or from the Company, the Agent or any Lender, until such time as
each other
Lender has received permanent payments or reductions in the L/C Advances held
by it
which, on a percentage basis, are equal to the reduction in the L/C Advances
achieved by
the defaulting Lender as a result of such default; provided, that nothing
herein shall in
any way limit any claims that the Company, the Agent or any Lender may have
against a
defaulting Lender arising out of any such default, all of which are hereby
expressly
reserved.
3.03. Intentionally Omitted.
3.04. Intentionally Omitted.
3.05. Intentionally Omitted.
Section 4. Intentionally Omitted.
Section 5. Payments; Pro Rata Treatment; Computations; Etc.
5.01. Payments.
(a) All payments to be made by the Company under this Agreement and
all payments to be made by the Company under any other Basic Document (except
as
otherwise specifically provided therein) shall be made in Dollars in
immediately available
funds without deduction, set-off or counterclaim (and the Company hereby
irrevocably
waives the right to interpose any non-compulsory counter claim in any
proceeding with
respect to the Company s obligations hereunder), not later than 1:00 p.m.
(Boston time)
on the date on which such payment shall become due (each such payment made
after
such time on such due date to be deemed to have been made on the next
succeeding
Banking Day).
(b) Any Lender for whose account any such payment is to be made, may
(but shall not be obligated to) debit the amount of any such payment which is
not made
by such time to any ordinary deposit account of the Company with such Lender
(with
notice thereof to the Company).
(c) If any payment is received by the Agent under this Agreement,
the
Agent shall promptly remit such payment to such Lender, in immediately
available funds.
(d) If the due date of any payment under this Agreement would
otherwise fall on a day which is not a Banking Day such date shall be
extended to the
next succeeding Banking Day and interest shall be payable for any principal so
extended
for the period of such extension.
5.02. Pro Rata Treatment. Except to the extent otherwise provided
herein, any
payment made in respect of the Standby L/C s (whether a repayment of an L/C
Advance,
the payment of interest thereon or the payment of the fees described in
Section 3.01(b))
by the Company shall be made for the account of the Lenders pro rata in
accordance
with their respective pro rata interests in the Term Loans held by them
immediately prior
to the execution hereof. The Lenders agree and acknowledge that immediately
prior to
the execution hereof, (a) Fleet held 52.38% of the Term Loans, and (b)
CIBC held
47.62% of the Term Loans.
5.03. Computations. Interest on amounts payable hereunder or under
the other
Basic Documents shall be computed on the basis of a year of 360 days, and
actual days
elapsed (including the first day but excluding the last day) occurring in the
period for
which payable. Any increase or decrease in the interest rate hereunder and
under the
other Basic Documents resulting from a change in the Prime Rate shall be
effective
immediately from the date of such change.
5.04. Intentionally Omitted.
5.05. Intentionally Omitted.
5.06. Intentionally Omitted.
5.07. Sharing of Payments, Etc.
(a) The Company agrees that, in addition to (and without limitation
of)
any right of set-off, banker s lien or counterclaim a Lender may otherwise
have, each
Lender shall be entitled, at its option, to offset balances held by it for
the account of the
Company at any of its offices or offices of its Affiliates, in Dollars or in
any other
currency, against any other amount payable to such Lender hereunder, that is
not paid
when due (regardless of whether such balances are then due to the Company), in
which
case it shall promptly notify the Company and the Agent thereof, provided that
such
Lender s failure to give such notice shall not affect the validity thereof.
(b) If any Lender shall obtain from the Company payment of any
amount due under this Agreement or any other Basic Document through the
exercise of
any right of set-off, banker s lien or counterclaim or similar right or
otherwise (other than
from the Agent as provided herein), and, as a result of such payment, such
Lender shall
have received a greater percentage of any amount then due hereunder by the
Company
to such Lender than the percentage received by any other Lenders, it shall
promptly
purchase from such other Lenders Participations in (or, if and to the extent
specified by
such Lenders direct interests in) such other amount, respectively, owing to
such other
Lenders (or in interest due thereon, as the case may be) in such amounts, and
make such
other adjustments from time to time as shall be equitable, to the end that all
the Lenders
shall share the benefit of such excess payment (net of any expenses which may
be
incurred by such Lender in obtaining or preserving such excess payment) pro
rata in
accordance with such other amounts, respectively, owing to each of the
Lenders. To such
end all the Lenders shall make appropriate adjustments among themselves
(by the resale
of Participations sold or otherwise) if such payment is rescinded or must
otherwise be
restored.
(c) The Company agrees that any Lender so purchasing such a
participation (or direct interest) may exercise all rights of set-off, banker s
lien,
counterclaim or similar rights with respect to such participation as fully as
if such Lender
were a direct holder of amounts (as the case may be) owing to such Lender in
the
amount of such participation.
(d) Nothing contained herein shall require any Lender to exercise any
such right or shall affect the right of any Lender to exercise, and retain the
benefits of
exercising, any such right with respect to any other indebtedness or obligation
of the
Company. If, under any applicable bankruptcy, insolvency or other similar law,
any
Lender receives a secured claim in lieu of a set-off to which this Section 5.07
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 entitled under this
Section
5.07 to share in the benefits of any recovery on such secured claim.
Section 6. Yield Protection, Etc.
6.01. Additional Costs.
Anything herein to the contrary notwithstanding, if any changes in
present
or future applicable law (which term applicable law , as used in this Section
6.01,
includes statutes and rules and regulations thereunder and interpretations
thereof by any
competent court or by any governmental or other regulatory body or official
charged with
the administration or the interpretation thereof and requests, directives,
instructions and
notices at any time or from time to time heretofore or hereafter made upon or
otherwise
issued to any Lender by any central bank or other fiscal, monetary or other
authority),
including without limitation any change according to a prescribed schedule of
increasing
requirements, whether or not known or in effect as of the date hereof, shall (i)
subject
any Lender to any tax, levy, impost, duty, charge, fee, deduction or withholding
of any
nature with respect to this Agreement or the payment to such Lender of any
amounts
due to it hereunder, or (ii) materially change the basis of taxation of payments
to any
Lender of any other amounts payable to such Lender hereunder, or (iii) impose
or
increase or render applicable any special or supplemental deposit or reserve
or similar
requirements or assessment against assets held by, or deposits in or for the
account of, or
any liabilities of, or loans by an office of any Lender in respect of the
transactions
contemplated herein, or (iv) impose on any Lender any other condition or
requirement
with respect to this Agreement, and the result of any of the foregoing is cost
to (A) to
reduce any amount payable to such Lender hereunder, or (B) to require such
Lender to
make any payment or to forego any interest or other sum payable hereunder,
the amount
of which payment or foregone interest or other sum is calculated by reference
to the
gross amount of any sum receivable or deemed received by such Lender from
the
Company hereunder, then, and in each such case not otherwise provided for
hereunder,
the Company will upon demand made by such Lender promptly following such
Lender s
receipt of notice pertaining to such matters accompanied by calculations
thereof in
reasonable detail, pay to the Lender such additional amounts as will be
sufficient to
compensate it for such additional cost, reduction, payment or foregone
interest or other
sum; provided that the foregoing provisions of this sentence shall not apply in
the case of
any additional cost, reduction, payment or foregone interest or other sum
resulting from
any taxes charged upon or by reference to the overall net income, profits or
gains of such
Lender.
6.02. Intentionally Omitted.
Section 7. Conditions Precedent.
7.01. Conditions. This Agreement shall be effective upon receipt by
the Lenders
of the following documents and the fulfillment of the following conditions:
(a) Corporate Documents. The following documents, each certified as
indicated below:
(i) a copy of the charter, as amended, of the Company certified
by the Secretary of State of Delaware, and a certificate as to the good
standing of,
and charter documents filed by, the Company from such Secretary of State,
dated
as of a recent date; and
(ii) a certificate of the Secretary or an Assistant Secretary of
the
Company, dated the Closing Date and certifying (A) that attached thereto is
a true
and complete copy of the by-laws of the Company as in effect on the date of
such
certificate, (B) that attached thereto is a true and complete copy of
resolutions
duly adopted by the Board of Directors of the Company authorizing the
execution,
delivery and performance of such of the Basic Documents to which the
Company
is to be a party, and that such resolutions have not been modified,
rescinded or
amended and are in full force and effect, (C) that the charter of the
Company has
not been amended since the date of the certification thereto furnished
pursuant to
clause (i) above, and (D) as to the incumbency and specimen signature of
each
officer of the Company executing such of the Basic Documents to which
the
Company is intended to be a party and each other document to be delivered
by
the Company from time to time in connection therewith (and the Agent and
each
Lender may conclusively rely on such certificate until it receives notice
in writing
from such Person).
(b) Officer s Certificate. A Certificate of a senior officer of the
Company to the effect that no Default has occurred and is continuing.
(c) Opinion of General Counsel of the Company. An opinion of
▇▇▇▇▇ ▇. Dell, Esq., Vice President, General Counsel and Secretary of the
Company, in
form and substance satisfactory to the Lenders.
(d) Intentionally Omitted.
(e) 1995 Security Agreement Amendment. An Amendment in form and
substance acceptable to the Company, the Agent and the Lenders to the Amended
Security Agreement, duly executed and delivered by the Company and the Agent,
and
evidence that the Company shall have taken such other action (including
delivering to the
Agent, for filing, appropriately completed and duly executed copies of
Uniform
Commercial Code financing statements) as the Agent shall have requested in order
to
perfect (or continue to perfect) the security interests created pursuant to the
Amended
Security Agreement.
(f) 1995 Mortgage Modification and Title Insurance. An Amendment
in form and substance acceptable to the Company, the Agent and the Lenders to
the
Mortgage duly executed and delivered by the Company and the Agent in recordable
form
(the 1995 Mortgage Modification ) in such number of duplicate originals as the
Agent
shall have requested and the 1995 Mortgage Modification shall have been duly
recorded
(or the Agent shall have received satisfactory title insurance against any
intervening
encumbrance as provided in the following sentence). The 1995 Mortgage
Modification
shall be accompanied by an updating of the existing policy of title insurance
(or by issuing
a new policy of title insurance) on forms of and issued by one or more title
companies
satisfactory to each Lender (the Title Companies ), insuring the priority of
the Liens
created under the Mortgage for an amount satisfactory to each Lender, subject
only to
such exceptions as are satisfactory to each Lender and, to the extent necessary
under
applicable law, for filing in the appropriate county land office, Uniform
Commercial
Code financing statements covering fixtures, in each case appropriately
completed and
duly executed and evidence that the Company shall have paid to the Title
Companies all
expenses and premiums of the Title Companies in connection with the issuance of
such
policies and in addition shall have paid to the Title Companies an amount equal
to the
recording and stamp taxes payable in connection with recording the Mortgage in
the
appropriate county land office.
(g) 1995 Pledge Agreement Amendments. An Amendment in form and
substance acceptable to the Company, the Agent and the Lenders to the Pledge
Agreements, duly executed and delivered by the Company and the Agent.
(h) Intentionally Omitted.
(i) Intentionally Omitted.
(j) Intentionally Omitted.
(k) Intentionally Omitted.
(l) Intentionally Omitted.
(m) Intentionally Omitted.
(n) Intentionally Omitted.
(o) Other Documents. Such other documents as the Agent or any
Lender or counsel to the Lenders may reasonably request.
(p) Extension of Expiry Dates of Standby L/C s. All documents or
agreements requested by Fleet which are necessary to effect the extension of
the expiry
dates of the Standby L/C s, duly executed by the Company and Fleet.
(q) Closing Expenses. The Company shall have paid the reasonable
fees
and expenses of ▇▇▇▇▇▇▇, Procter & ▇▇▇▇, as special counsel to the Lenders, in
connection with the negotiation, preparation, execution and delivery of this
Agreement.
(r) Payment of Term Loans and Restructuring Fee. The Company shall
have paid in full the Term Loans and the Restructuring Fee. The Company hereby
consents to Fleet debting the Company s demand deposit account at Fleet to
effect the
Company s pro rata payment to Fleet of the Restructuring Fee and the Standby
L/C fee
due on June 30, 1995.
7.02. Intentionally Omitted.
Section 8. Representations and Warranties. The Company hereby
represents
and warrants to the Lenders that:
8.01. Corporate Organization and Existence. Each of the Company and
its
Subsidiaries is a corporation duly organized and validly existing and in good
standing
under the laws of the jurisdiction in which it is incorporated and has all
necessary
corporate power to own its assets and to carry on the business now conducted or
as
proposed to be conducted by it. The Company has all necessary corporate
power and has
taken all corporate action required to make all the provisions of this
Agreement and the
other Basic Documents and the agreements and instruments executed in connection
therewith, the valid and enforceable obligations they purport to be, subject to
bankruptcy,
insolvency, reorganization, moratorium or other similar laws of general
applicability
affecting the enforcement of creditors rights and the application of
general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity
or at law). Each of the Company and its Subsidiaries is duly qualified and in
good
standing as a foreign corporation in all jurisdictions in which the nature of
its business or
the character of the property owned by it makes such qualification necessary
and where
the failure to so qualify could have a Material Adverse Effect, and is duly
authorized,
qualified and licensed under all laws, regulations, ordinances or orders of
public
authorities, or otherwise, to own its assets and to carry on its business in
the places and
in the manner presently conducted or as proposed to be conducted.
8.02. Subsidiaries. As of the Closing Date, the Company has only the
Subsidiaries (and the Investments by it or any of its Subsidiaries in any Joint
Venture or
other Person) set forth in Schedule 8.02 hereto, all of the outstanding
capital stock of
each such Subsidiary is duly authorized, validly issued, fully paid and
non-assessable
(subject to no security interests or restrictions on transfer other than those
(a) arising
under the Basic Documents, if any, (b) contained in the charter documents of
the
respective Subsidiaries, (c) under applicable securities laws, or (d) expressly
permitted
hereby) and owned as set forth in said Schedule, and the Company (or the
respective
Subsidiary) also owns, free and clear of Liens, all such Investments. Said
Schedule also
identifies those Subsidiaries which are Consolidated Subsidiaries.
8.03. Financial Information. The Company has previously furnished
each of the
Lenders copies of the following:
(i) the Company s annual report on Form 10-K relating to the
Company s fiscal year ended June 30, 1994 in the form filed with the
Securities
and Exchange Commission (the 1994 Form 10-K ); and
(ii) the Company s quarterly report on Form 10-Q relating to the
Company s fiscal quarter ended March 31, 1995 in the form filed with the
Securities and Exchange Commission (together with the 1994 Form 10-K, the
SEC Reports ).
Each of the SEC Reports (including all of the financial statements included
therein)
contains all information which is required to be stated therein in accordance
with
applicable federal securities laws, rules and regulations and conforms in all
material
respects to the requirements thereof; the financial statements contained in the
SEC
Reports were prepared in accordance with generally accepted accounting
principles,
consistently applied, and present fairly the financial condition of the
corporations stated
to be covered thereby at the dates thereof and the results of their operations
for the
stated periods covered thereby; and none of the SEC Reports at the date
thereof
included any untrue statement of a material fact or omitted to state a material
fact
required to be stated therein or necessary to make the statements therein in
the light of
the circumstances under which they were made not misleading, subject, in the
case of the
report on Form 10-Q, to normal year-end adjustments.
8.04. Changes in Condition. Except as disclosed in Schedule 8.04
hereto, (i)
since March 31, 1995, there has been no material adverse change in the business
or assets
or in the condition, financial or otherwise, of the Company and its
Subsidiaries, taken as
a whole; and (ii) the Company and its Subsidiaries on a consolidated basis have
no
known contingent liabilities for taxes, unusual forward or long-term
commitments or
unrealized or anticipated losses from any unfavorable commitments of any
material
amount which are not referred to in the SEC Reports.
8.05. Assets. The Company and its Subsidiaries have good and
marketable title
to all assets carried on their books and reflected in the financial statements,
notes and
schedules thereto contained in the SEC Reports, subject to no other ownership
interests
or any liens, charges or encumbrances, except for liens, charges and
encumbrances
permitted by Section 9.06 hereof and assets sold, abandoned or otherwise
disposed of in
the ordinary course of business.
8.06. Litigation. Except as to matters referred to in Schedule 8.06
hereto, there
are no legal or arbitral proceedings, at law or in equity, or any proceeding
before any
federal, state, provincial or municipal board or other governmental or
administrative
agency pending or to the knowledge of the Company threatened in writing against
the
Company or any of its Subsidiaries which involves a material risk of any
judgment or
liability not fully covered by insurance which may have a Material Adverse
Effect, and no
judgment, decree, or order of any federal, state, provincial or municipal
court, board or
other governmental or administrative agency has been issued against the
Company or any
Subsidiary which has, or will have, a Material Adverse Effect.
8.07. Tax Returns. The Company and each of its Subsidiaries have
filed all tax
returns which are required to be filed by them and have paid, or made
adequate
provision for the payment of, all significant taxes which have or may become
due
pursuant to said returns or to assessments received. United States Federal
income tax
returns of the Company and its Subsidiaries have been examined and closed
through the
fiscal year of the Company ended June 30, 1987. The Company and its
Subsidiaries have
made adequate provisions for all current taxes, and in the opinion of the
Company there
will not be any additional assessments for any fiscal periods prior to and
including that
which ended the dates of said balance sheets in excess of the amounts reserved
therefor.
If the Company is a member of an affiliated group of corporations filing
consolidated
returns for United States Federal income tax purposes, it is the common parent
of such
group.
8.08. No Legal Obstacle to Agreement. None of the execution and
delivery of
this Agreement and the other Basic Documents, nor the consummation of any
transaction
herein referred to or contemplated hereby nor the fulfillment of the terms
hereof or of
any agreement or instrument referred to in this Agreement has constituted or
resulted in
or will constitute or result in a breach of the provisions of any contract to
which the
Company or any Subsidiary is a party or by which it is bound or of the charter
or by-laws
of the Company or any Subsidiary or the violation of any presently existing
applicable
law, judgment, decree, federal, provincial or state law or governmental order,
rule or
regulation, or result in the creation under any agreement or instrument of any
Lien upon
any of the assets of the Company or any of its Subsidiaries, except as
permitted by
Section 9.06 hereof.
8.09. Defaults. Except as set forth in Schedule 8.09 hereto, neither
the Company
nor any of its Subsidiaries is in default under any provision of its charter or
by-laws or
any other agreement or other instrument to which it is a party or by which it
is bound or
is in violation of any federal or state law, governmental order, rule or
regulation except,
in any such case, for any of the foregoing that do not, in the aggregate,
have a Material
Adverse Effect.
8.10. ERISA. The Company and each member of the Company s controlled
group (within the meaning of Section 302(d)(8)(c) of ERISA have fulfilled their
respective obligations under the minimum funding standards of ERISA and the Code
with respect to each plan subject to such standards, and there has been no
application
filed for a waiver of such requirements with respect to any such plan.
No event has
occurred which would cause the Company or any ERISA Affiliate to incur,
directly or
indirectly (through indemnification or otherwise) material liability or
penalties under
ERISA or the provisions of the Code relating to employee benefit programs,
including
(without limitation) Sections 409, 502(i) or 502(l) of ERISA, title IV of
ERISA, or
section 4975 or 4980B of the Code. Except as set forth in Schedule
8.10 hereto, neither
the Company nor any ERISA Affiliate provided (or has promised to provide)
medical or
other welfare benefits (or coverage with respect to such benefits) for periods
beyond the
date of any employee s termination of employment with the Company or such
ERISA
Affiliate (a Post-Termination Welfare Arrangement ), except to the extent
required by
part 6 of subtitle B of title I of ERISA and at the sole expense of the
employee (or his
beneficiary). None of the Plans has any unfunded benefit liabilities within
the meaning
of Section 4001(a)(18) of ERISA. Neither the Company nor any ERISA Affiliate
contributes to (or has an obligation to contribute to) a Multiemployer Plan.
The
Company and the ERISA Affiliates have the authority unilaterally to terminate
(or to
terminate their participation in) without notice each employee benefit program
or
arrangement they maintain or contribute to (or each vehicle that funds
obligations under
such program or arrangement) without incurring additional liability with
respect to such
program or arrangement.
8.11. Foreign Trade Regulations; Government Regulation.
(a) Foreign Trade Regulations. Neither the Company nor any
Subsidiary of the Company is: (i) a person included within the definition of
designated
foreign country or national of a designated foreign country in Executive
Order No.
8389, as amended, in Executive Order No. 9193, as amended, in the Foreign
Assets
Control Regulations (31 C.F.R., Chapter V, Part 500, as amended), in the Cuban
Assets
Control Regulations of the United States Treasury Department (31 C.F.R.,
Chapter
v,
Part 515, as amended) or in the Regulations of the Office of Alien Property,
Department
of Justice (8 C.F.R., Chapter II, Part 507, as amended) or within the meanings
of any of
the said Orders or Regulations or of any regulations, interpretations or rulings
issued
thereunder, or in violation of said Orders or Regulations or of any
regulations,
interpretations or rulings issued thereunder; or (ii) an entity listed in
Section 520.101 of
the Foreign Funds Control Regulations (31 C.F.R., Chapter V, Part 520, as
amended).
(b) Government Regulation. Except as set forth on Schedule 8.11
hereto, neither the Company nor any Subsidiary nor any corporation controlling
the
Company or under common control with the Company is subject to regulation under
the
Public Utility Holding Company Act of 1935, the Federal Power Act, the
Investment
Company Act of 1940, the Interstate Commerce Act, or to any statute or
regulation
regulating the incurring by the Company of Indebted for money borrowed, or to
any
statute or regulation relating to common or contract carriers or to the sale of
electricity,
gas, steam, water or other public utility services. No approval or
authorization of any
governmental authority is required to permit the execution, delivery or
performance by
the Company of this Agreement or any other Basic Document or the consummation
of
any of the transactions contemplated hereby or thereby.
8.12. Outstanding Indebtedness. The outstanding Indebtedness in
respect of
borrowed money and Capital Lease Obligations of the Company and its
Subsidiaries at
March 31, 1995, is correctly set forth in Schedule 8.12 hereto, and said
Schedule correctly
describes all security interests securing such Indebtedness.
8.13. Disclosure. Neither this Agreement nor any written agreement,
document,
certificate or statement furnished to any of the Lenders or the Agent by or on
behalf of
the Company in connection with the transactions contemplated hereby contains
any
untrue statement of material fact or omits to state a material fact necessary
in order to
make the statements contained herein or therein not misleading.
8.14. Intentionally Omitted.
8.15. Hazardous Materials. Except as set forth in Schedule 8.15
hereto, the
Company and each of its Subsidiaries have obtained all permits, licenses and
other
authorizations, and have filed all notifications and registrations, which are
required under
all Environmental Laws, except to the extent failure to have any such permit,
license or
authorization or to file such notification or registration would not have a
Material
Adverse Effect. The Company and each of its Subsidiaries are in compliance
with
the
terms and conditions of all such permits, licenses and authorizations, and are
also in
compliance with all other limitations, restrictions, conditions, standards,
prohibitions,
requirements, obligations, schedules and timetables contained in any
applicable
Environmental Law or in any regulation, code, plan, order, decree,
judgment, injunction,
notice or demand letter issued, entered, promulgated or approved thereunder,
except to
the extent failure to comply would not have a Material Adverse Effect.
In addition, except as set forth in Schedule 8.15 hereto:
(a) No notice, notification, demand, request for information,
citation,
summons or order has been issued, no complaint has been filed, no penalty has
been
assessed and no investigation or review is pending or threatened by any
governmental
agency or other Person with respect to any alleged failure by the Company or
any of its
Subsidiaries to have any permit, license or authorization, or to file any
notification or
registration, required in connection with the conduct of the business of the
Company or
any of its Subsidiaries or with respect to any generation, treatment, storage,
recycling,
transportation, discharge or disposal, or any Release of any Hazardous
Materials
generated by the Company or any of its Subsidiaries.
(b) Neither the Company nor any of its Subsidiaries or Environmental
Affiliates has handled any Hazardous Material on any Property now or previously
owned
or leased by the Company or any of its Subsidiaries or Environmental Affiliates
to an
extent that it has, or may reasonably be expected to have, a Material Adverse
Effect; and
(i) no PCB or asbestos is or has been present at any Property
now or previously owned or leased by the Company or any of its
Subsidiaries or
Environmental Affiliates;
(ii) there are no underground storage tanks for Hazardous
Materials, active or abandoned, at any Property now or previously owned or
leased
by the Company or any of its Subsidiaries or Environmental Affiliates;
(iii) no Hazardous Materials have been Released, in a
reportable
quantity, where a report is required by statute, ordinance, rule,
regulation or
order, or otherwise, at, on or under any Property now or previously
owned by the
Company or any of its Subsidiaries or Environmental Affiliates that is
likely to
involve an expenditure in excess of $500,000.
(c) Neither the Company nor any of its Subsidiaries or Environmental
Affiliates has transported or arranged for the disposal or transportation of
any Hazardous
Material at or to any location which is listed on the National Priorities List
under the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as
amended ( CERCLA ), listed for possible inclusion on the National Priorities
List by the
Environmental Protection Agency in CERCLIS or on any similar state list or
which is the
subject of Federal, state or local enforcement actions or other investigations
which may
lead to claims against the Company or any of its Subsidiaries for clean-up
costs, remedial
work, damages to natural resources or for personal injury claims, including,
but not
limited to, claims under CERCLA.
(d) No Hazardous Material generated by the Company or any of its
Environmental Affiliates has been recycled, treated, stored, disposed of, or
Released by
the Company or any of its Environmental Affiliates at any location other than
those listed
in Schedule 8.15 hereto.
(e) No oral or written notification of a Release of a Hazardous
Material
has been filed by or on behalf of the Company or any of its Subsidiaries and
no Property
now or previously owned, leased or otherwise used by the Company or any of
its
Subsidiaries is listed or proposed for listing on the National Priorities
List promulgated
pursuant to CERCLA, on CERCLIS or on any similar state list of sites
potentially
requiring investigation or clean-up.
(f) No Liens have arisen under or pursuant to any Environmental Laws
on any of the real Property or Properties owned or leased by the Company or any
of its
Subsidiaries, and no government actions have been taken or are in process which
could
subject any of such Properties to such Liens and neither the Company nor any of
its
Subsidiaries would be required to place any notice or restriction relating to
the presence
of Hazardous Materials at any Property owned by it in any deed to such Property.
(g) There have been no environmental investigations, studies,
audits,
tests, reviews or other analyses conducted by or which are in the possession of
the
Company or any of its Subsidiaries in relation to any Property or facility now
or
previously owned or leased by the Company or any of its Subsidiaries which have
not
been made available to the Lenders.
8.16. Security Documents. As of the Closing Date, (a) the security
interest
granted to the Agent pursuant to the Amended Security Agreement constitutes
a
perfected security interest in all of the personal property of the Company
(other than
(i) personal property not included in Collateral , as defined in such
Agreement, and
(ii) personal property of the Company located in Idaho, Iowa, Kansas, Maryland,
North
Dakota, Oregon, Puerto Rico and Virginia) which may be perfected by the filing
of a
Uniform Commercial Code financing statement, including without limitation,
accounts,
inventory, equipment and general intangibles, subject only to the Liens
permitted by
Section 9.06, (b) pursuant to the Mortgage, the Agent has an enforceable
mortgage on
the real property (and improvements thereon and fixtures thereat) owned by
the
Company and located in Tinton Falls and Oceanport, New Jersey, subject only to
the
Liens of Foothill, (c) pursuant to the Pledge Agreements and the instruments
of transfer
executed in connection therewith, the Agent has a perfected security interest
in the
Pledged Stock , as defined in each such Agreement, subject only to the Lien of
Foothill,
and (d) the foregoing security interests and Mortgage secure any and all
obligations of
the Company to the Lenders and/or Agent now existing or hereafter arising,
hereunder
and under the other Basic Documents, including the obligations of the Company,
related
to, arising, from or in connection with the Standby L/C s, the L/C Advances and
the
Standby L/C Applications. The representations and warranties in the
Security
Documents, to the extent applicable, are amended to reflect that such
security interests
and Mortgage are subject to the Liens of Foothill pursuant to an
Intercreditor
Agreement between Foothill and the Agent dated as of June 29, 1995.
Section 9. Covenants of the Company. The Company covenants and agrees
with the Lenders and the Agent that, so long as any Standby L/C or any
reimbursement
obligation with respect to any Standby L/C is outstanding:
9.01. Financial Statements. The Company shall deliver to each of
the Lenders
and the Agent:
(a) as soon as available and in any event within 50 days after the
end of
each quarterly fiscal period of each fiscal year of the Company, consolidated
and
consolidating statements of income and consolidated statements of cash flow of
the
Company and its Consolidated Subsidiaries for such period and for the period
from the
beginning of the respective fiscal year to the end of such period, and the
related
consolidated and consolidating balance sheets as at the end of such period,
setting forth
in the case of the consolidated statements in comparative form the
corresponding
consolidated figures for the corresponding period in the preceding financial
year,
accompanied by a certificate of a senior financial officer of the Company,
which
certificate shall state that said consolidated financial statements fairly
present the
consolidated financial condition and results of operations of the Company and
its
Consolidated Subsidiaries, in accordance with generally accepted accounting
principles,
consistently applied, as at the end of, and for, such period (subject to normal
year-end
audit adjustments), and that said consolidating financial statements were
prepared by the
Company in good faith on the basis of the books and records of the Company and
its
Subsidiaries and were the consolidating financial statements used in preparing
said
consolidated financial statements;
(b) as soon as available and in any event within 100 days after the
end
of each fiscal year of the Company, consolidated and consolidating statements
of income
and consolidated statements of cash flow of the Company and its Consolidated
Subsidiaries for such year and the related consolidated and consolidating
balance sheets
as at the end of such year, setting forth in the case of the consolidated
statements in
comparative form the corresponding consolidated figures for the preceding
fiscal year,
and accompanied (i) in the case of said consolidated statements and balance
sheet, by an
opinion thereon of independent certified public accountants of recognized
national
standing, which opinion shall state that said consolidated financial
statements fairly
present the consolidated financial condition and results of operations of the
Company
and its Consolidated Subsidiaries as at the end of, and for, such fiscal year
in accordance
with generally accepted accounting principles, and a certificate of such
accountants stating
that, in making the examination necessary for their opinion, they obtained no
knowledge,
except as specifically stated, of any Default, and (ii) in the case of said
consolidating
statements and balance sheets, by a certificate of a senior financial officer of
the
Company, which certificate shall state that said consolidating financial
statements were
prepared by the Company in good faith on the basis of the books and records of
the
Company and its Subsidiaries and were the consolidating financial statements
used in
preparing said consolidated financial statements;
(c) promptly upon their becoming available, copies of all
registration
statements and regular periodic reports, if any, which the Company shall have
filed with
the Securities and Exchange Commission (or any governmental agency
substituted
therefor) or any national securities exchange; provided that notwithstanding
the
foregoing, (i) the Company shall deliver to each of the Lenders the Form 10-K
for such
fiscal year filed with the Securities and Exchange Commission within one Banking
Day of
the date such Form 10-K has been so filed; and (ii) within 60 days of each
fiscal quarterend of the Company, the Company shall deliver to each of the
Lenders the Form 10-Q
for such fiscal quarter filed with the Securities and Exchange Commission;
(d) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so
mailed;
(e) as soon as possible, and in any event within ten days after the
Company knows or has reason to believe that any of the events or conditions
specified
below have occurred or exist, a statement signed by a senior financial officer
of the
Company setting forth details respecting such event or condition and the
action, if any,
which the Company or its ERISA Affiliate proposes to take with respect thereto
(and a
copy of any report or notice required to be filed with or given to PBGC by the
Company
or an ERISA Affiliate with respect to such event or condition):
(i) any reportable event, as defined in Section 4043(b) of
ERISA
and the regulations issued thereunder, with respect to a Plan, as to
which PBGC
has not by regulation waived the requirement of Section 4043(a) of ERISA
that it
be notified within 30 days of the occurrence of such event;
(ii) the failure of any plan subject to Section 302 of ERISA and
which is maintained by the Company (or any member of the Company s
controlled group within the meaning of Section 302(d)(8)(C) of ERISA) to
satisfy any of the requirements of Section 302 of ERISA, or the filing of
an
application for a waiver of minimum funding with respect to any such plan;
(iii) the filing under Section 4041 of ERISA of a notice of
intent
to terminate any Plan or the termination of any Plan;
(iv) the institution by PBGC of proceedings under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to
administer, any
Plan, or the receipt by the Company or any ERISA Affiliate of a notice
from a
Multiemployer Plan that such action has been taken by PBGC with respect
to such
Multiemployer Plan;
(v) the complete or partial withdrawal by the Company or any
ERISA Affiliate under Section 4203 or 4205 of ERISA from a Multiemployer
Plan, or the receipt by the Company or any ERISA Affiliate of notice from a
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section
4241 or 4245 of ERISA or that it intends to terminate or has terminated
under
Section 4041A of ERISA;
(vi) the institution of a proceeding by a fiduciary of any
Multiemployer Plan against the Company or any ERISA Affiliate to enforce
Section 515 of ERISA, which proceeding is not dismissed within 30 days;
and
(vii) any event (including receipt of a notice from the
Internal
Revenue Service) indicating that any plan maintained by the Company and
intended to be qualified under Section 401(a) of the Internal Revenue Code
is not
so qualified.
(f) as soon as available and in any event within 15 days after
receipt,
any income statements, cash flow statements, balance sheets or other financial
statements
of CNC;
(g) within 15 Banking Days after receipt, a copy of all material
audit
reports and letters to management submitted to the Company by independent
public
accountants in connection with any annual, special or interim audits of the
books of the
Company, except to the extent that the delivery thereof would result in the
waiver of any
privilege claim to which the Company would otherwise be entitled;
(h) within five Banking Days after the Company knows or has reason to
believe that any Default has occurred, a notice of such Default describing the
same in
reasonable detail and, together with such notice or as soon thereafter as
possible, a
description of the action that the Company has taken and proposes to take with
respect
thereto;
(i) from time to time, such other information regarding the
financial
condition, operations, business or prospects of the Company or any of its
Subsidiaries as
the Agent may reasonably request.
The Company will furnish to each Lender, at the time it furnishes each set of
financial
statements pursuant to paragraph (a) or (b) above, a Compliance Certificate of
the
Company signed by an authorized officer substantially in the form of Exhibit A
hereto to
the effect that, among other things, no Default has occurred and is continuing
(or, if any
Default has occurred and is continuing, describing the same in reasonable detail
and
describing the action that the Company has taken and proposes to take with
respect
thereto).
9.02. Intentionally Omitted.
9.03. Existence. The Company will, and will cause each of its
Subsidiaries to:
preserve and maintain its legal existence and all of its material rights,
privileges and
franchises (except as a result of any transaction permitted by Section 9.05
hereof or the
dissolution (or other reorganization or restructuring) of any Foreign Subsidiary
to the
extent done as part of present or future cost-saving efforts, and except for the
dissolution
(or other reorganization or restructuring) of CNC); comply with the requirements
of all
applicable laws, rules, regulations and orders of governmental or regulatory
authorities if
failure to comply with such requirements would have a Material Adverse
Effect.
9.04. Insurance. The Company will, and will cause each of its
Subsidiaries to,
keep insured by financially sound and reputable insurers all Property of a
character
usually insured by corporations engaged in the same or similar business
similarly situated
against loss or damage of the kinds and in the amounts customarily insured
against by
such corporations and carry such other insurance as is usually carried by
such
corporations.
9.05. Prohibition of Fundamental Changes. The Company will not, nor
will it
permit any of its Subsidiaries to, enter into any transaction of merger or
consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or
dissolution) except, in the case of any Foreign Subsidiary or inoperative
Subsidiary, as
permitted by Section 9.03 or as directed by the Board of Directors of the
Company in
connection with any rationalization of the legal structure of the Company s
foreign
operations so long as such rationalization does not have material adverse tax
consequence
to the Company or result in any material cost to the Company. The Company will
not,
and will not permit any of its Domestic Subsidiaries to, convey, sell, lease,
transfer or
otherwise dispose of, in one transaction or a series of transactions, all or a
substantial
part of its business or Property, whether now owned or hereafter acquired
(including,
without limitation, receivables and leasehold interests, but excluding
Dispositions
permitted by Section 9.24 hereof). Notwithstanding the foregoing provisions of
this
Section 9.05:
(a) any Domestic Subsidiary of the Company may be merged or
consolidated with or into the Company or any Wholly-Owned Domestic Subsidiary or
Subsidiaries of the Company if the Company or such Wholly-Owned Domestic
Subsidiary
or Subsidiaries shall be the continuing or surviving corporation or
corporations, provided
that in no event may any Subsidiary that is acquired after the Closing Date as
permitted
by paragraph (c) below be party to a merger or consolidation with the Company or
any
other Subsidiary of the Company;
(b) any such Subsidiary may sell, lease, transfer or otherwise
dispose of
any or all of its Property (upon voluntary liquidation or otherwise) to the
Company or to
one or more Wholly-Owned Subsidiaries of the Company;
(c) the Company or any of its Domestic Subsidiaries may acquire the
capital stock of any Person if it acquires all (or all not already owned by it)
of the capital
stock of such Person and the sole consideration for such acquisition is capital
stock of the
Company or, to the extent permitted by clauses (a) and (b) of Section 9.16
hereof, of any
Subsidiary; and, after giving effect thereto, no Default has occurred and is
continuing and
so long as neither the Company nor any of its Domestic Subsidiaries shall
assume,
Guarantee or otherwise in any manner become liable with respect to the
Indebtedness of
such Person, unless such liability of the Company or its Domestic Subsidiary
would
constitute Indebtedness permitted by Section 9.07 hereof;
(d) the Company or any of its Domestic Subsidiaries may acquire
Property (including services) from another Person in exchange for capital stock
of the
Company or, to the extent permitted by clauses (a) and (b) of Section 9.16
hereof, of any
Subsidiary; and
(e) the Company or any of its Subsidiaries may acquire the
investment
of Nippon Steel Corporation in CNC.
Nothing in this Section 9.05 shall prohibit any transaction permitted by Section
9.24
hereof.
9.06. Limitation on Liens. The Company will not, nor will it permit
any of its
Domestic Subsidiaries to, create, incur, assume or suffer to exist any Lien upon
any of its
Property, whether now owned or hereafter acquired, except:
(a) Liens in favor of Foothill;
(b) Liens created pursuant to the Security Documents;
(c) Existing Liens described in Schedule 9.06 hereto;
(d) Liens imposed by any governmental authority for taxes,
assessments
or charges or with respect to obligations under Environmental Laws that are not
yet due
or which are being contested in good faith and by appropriate proceedings if
adequate
reserves with respect thereto are maintained on the books of the Company or any
of its
Subsidiaries, as the case may be, if required in accordance with GAAP;
(e) carriers , warehouseman s, mechanics , materialmen s,
repairmen s or
other like Liens arising in the ordinary course of business which are not
overdue for a
period of more than 30 days or which are being contested in good faith and
by
appropriate proceedings and Liens securing judgments but only to the extent for
an
amount and for a period not resulting in a Specified Event or an Event of
Default under
Section 10(h) hereof;
(f) pledges or deposits under worker s compensation; unemployment
insurance and other social security legislation;
(g) deposits to secure the performance of bids, trade contracts
(other
than for borrowed money), leases, statutory obligations, surety and appeal
bonds,
performance bonds, payment of porting fees for modifications of third-party
software to
run on the Company s hardware platforms and other obligations of a like nature
incurred
in the ordinary course of business;
(h) easements, rights-of-way, restrictions and other similar
encumbrances
incurred in the ordinary course of business and encumbrances consisting of
zoning
restrictions easements, licenses, restrictions on the use of Property or minor
imperfections
in title thereto which, in the aggregate, are not material in amount, and which
do not in
any case materially detract from the value of the Property subject thereto or
interfere
with the ordinary conduct of the business of the Company or any of its
Subsidiaries;
(i) Liens upon real and/or tangible personal Property acquired after
the
date hereof (by purchase, construction or otherwise) by the Company or any of
its
Domestic Subsidiaries, each of which Liens either (A) existed on such Property
before
the time of its acquisition and was not created in anticipation thereof, or (B)
was created
solely for the purpose of securing Indebtedness representing, or incurred to
finance,
refinance or refund, the cost (including the cost of construction) of such
Property;
provided that no such Lien shall extend to or cover any Property of the Company
or such
Subsidiary other than the Property so acquired and improvements thereon; and
provided,
further, that the principal amount of Indebtedness secured by any such Lien
shall at no
time exceed 90% of the Market Value (as determined in good faith by a senior
financial
officer of the Company) of such real Property and 90% of the book value of
such
tangible personal Property at the time it was acquired (by purchase,
construction or
otherwise);
(j) title retention provisions or similar Liens in favor of a
vendor of
goods to the Company so long as such Liens arise in the ordinary course of
business
provided that the holder of such Lien has not filed financing statements,
given notice to
the Lenders of a purchase money security interest or otherwise taken steps to
perfect
such Lien;
(k) Liens arising from capital leases to the extent the Capital Lease
Obligations arising therefrom are permitted by Section 9.20(a) hereof.
(l) any extension, renewal or replacement of the foregoing, provided,
however, that the Liens permitted hereunder shall not be spread to cover any
additional
Indebtedness or Property (other than a substitution of like Property); and
9.07. Indebtedness. The Company will not, and will not permit any of
its
Domestic Subsidiaries to, create, incur or suffer to exist any Indebtedness
except:
(a) Indebtedness to Foothill for borrowed money in an amount not
exceed $21,000,000 in the aggregate at any one time and other Indebtedness to
Foothill;
(b) indebtedness to the Lenders hereunder;
(c) trade account payables of the Company incurred in the ordinary
course of business;
(d) other Indebtedness outstanding on the date hereof and listed in
Schedule 9.07 hereto and any refinancing thereof;
(e) Guarantees by the Company and the Domestic Subsidiaries of
obligations of Foreign Subsidiaries in an aggregate amount not exceeding
$15,000,000 at
any one time outstanding;
(f) Indebtedness of the Company to its Foreign Subsidiaries (so long
as
such Indebtedness shall not have been pledged to any creditor of any Foreign
Subsidiary
or any other Person);
(g) Indebtedness of the Company and its Domestic Subsidiaries
permitted under Section 9.06(h) hereof up to but not exceeding $5,000,000 at any
one
time outstanding;
(h) Indebtedness of the Company and its Domestic Subsidiaries
incurred
to finance investments permitted by Section 9.08(f) hereof not exceeding
$15,000,000 at
any one time outstanding which Indebtedness may be secured by Liens permitted
under
Section 9.06(h);
(i) Capital Lease Obligations permitted under Section 9.20 hereof;
(j) Interest Rate Protection Agreements so long as the aggregate
exposure under all Interest Rate Protection Agreements calculated at the time
any
Interest Rate Protection Agreement is entered into does not exceed $1,000,000;
(k) obligations with respect to foreign exchange hedging contracts
used
to hedge the foreign exchange exposure of the Company and its Foreign
Subsidiaries with
respect to receivables and payables; and
(l) unsecured obligations to insurance companies, sureties or
others with
respect to worker s compensation, employment insurance and other social
security
legislation and with respect to performance bonds and other obligations
described in
Section 9.06(f) hereof in an aggregate amount not exceeding $5,000,000 at any
one time
outstanding.
9.08. Intentionally Omitted..
9.09. Intentionally Omitted.
9.10. Intentionally Omitted.
9.11. Capital Expenditures. The Company will not permit the aggregate
amount
of Capital Expenditures made by the Company and its Domestic Subsidiaries in any
fiscal
year together with the aggregate amount of Capital Lease Obligations incurred by
the
Company and its Domestic Subsidiaries during such period, to exceed
$13,000,000
provided that if the aggregate amount of Capital Expenditures made by the
Company
during any such fiscal year is less than the maximum amount of Capital
Expenditures
permitted hereby (after taking into account any increase in such amount as a
result of
this proviso) for such fiscal year, the amount of Capital Expenditures permitted
for the
succeeding fiscal year shall be increased by such difference to the extent such
difference
does not exceed $10,000,000. Any Capital Lease Obligation incurred in
connection with
a sale and leaseback of the Company s facility located in Oceanport, New Jersey
shall be
excluded from the computations under this Section 9.11.
9.12. Intentionally Omitted.
9.13. Lines of Business. Neither the Company nor any of its
Subsidiaries shall
engage to any substantial extent in any line or lines of business activity other
than the
business engaged in by the Company and its Subsidiaries on the date hereof or
any other
line or lines of business related thereto.
9.14. Intentionally Omitted.
9.15. Intentionally Omitted.
9.16. Certain Obligations Respecting Subsidiaries. The Company will,
and will
cause each of its Subsidiaries to, take such action from time to time as shall
be necessary
to ensure that the Company and each of its Subsidiaries at all times owns at
least the
same percentage of the issued and outstanding shares of each class of stock
of each of its
Subsidiaries as is owned on the Closing Date except to the extent resulting
from
transactions permitted by Section 9.03, 9.05 or 9.24(v) hereof, except as
provided in
clauses (a) and (b) below. Without limiting the generality of the foregoing,
none of the
Company nor any of its Subsidiaries shall sell, transfer or otherwise dispose
of any shares
of stock in any Subsidiary owned by them, nor permit any Subsidiary to issue
any shares
of stock of any class whatsoever to any Person (other than to the Company)
except that
(a) the Company may make investments as long as such investment is permitted by
Section 9.08(f) hereof and (b) the Company may exchange shares of stock in a
Subsidiary
in exchange for Property, provided that in the case of any such investment or
exchange
the Company shall, after giving effect thereto, still own at least 51% of the
stock of such
Subsidiary (or the portion pledged pursuant to the respective Pledge Agreement
in the
case of any Foreign Subsidiary) and such Subsidiary shall remain a Subsidiary
as
defined in Section 1.01 hereof. Except as expressly permitted in this
Agreement, the
Company will, and will cause each of its Subsidiaries to, retain voting control
of each of
its Subsidiaries.
9.17. Intentionally Omitted.
9.18. Intentionally Omitted.
9.19. Intentionally Omitted.
9.20. Leases. The aggregate rental obligations in each fiscal year of
the
Company and its Domestic Subsidiaries under all leases (other than Capital Lease
Obligations) not cancelable without penalty shall not exceed $7,000,000. The
Company
shall, and shall cause each of its Domestic Subsidiaries to, comply in all
material respects
with all material leases under which it is the lessee and diligently enforce its
rights
thereunder, unless, in the judgment of the Company the failure to so comply is
advisable
in connection with the negotiation or renegotiation of any such lease. The
Company will
not incur (and will not permit any Domestic Subsidiary to incur) any Capital
Lease
Obligations other than:
(a) Capital Lease Obligations incurred in any fiscal year that do
not
exceed, in the aggregate, together with the aggregate amount of Capital
Expenditures
made by the Company and its Domestic Subsidiaries during such fiscal year, the
amount
set forth in Section 9.11 hereof for such fiscal year; and
(b) other Capital Lease Obligations consented to by the Majority
Lenders.
9.21. Intentionally Omitted.
9.22. Intentionally Omitted.
9.23. Intentionally Omitted.
9.24. Disposition of Assets. Neither the Company nor any of its
Domestic
Subsidiaries will sell, lease, assign or otherwise transfer or make any other
Disposition of
any of its assets other than:
(i) sales of Inventory, spare parts, demonstration systems and
similar items in the ordinary course of business on ordinary business
terms;
(ii) Dispositions that constitute transactions permitted by
Section
9.08(f) hereof;
(iii) the Disposition of obsolete or worn-out tools,
equipment,
Inventory, spare parts, demonstration systems or similar items or other
Property
no longer used or useful in the business of the Company and its
Subsidiaries;
(iv) the sale of other assets if the aggregate book value of
each
such asset or group of related assets (calculated as of the respective
dates of sale
of such assets or related group of assets) does not exceed $2,000,000;
provided that in no event shall the Company or any such Subsidiary make any
such sale
described in clause (iii) or (iv) above for any consideration other than cash
in an amount
equal to the fair market value of such asset;
(v) Dispositions of the stock of Subsidiaries to the extent
resulting directly from a transaction permitted by Sections 9.03 or
9.05(a) hereof
or as permitted by clauses (a) and (b) of Section 9.16 hereof;
(vi) the sale of the Company s Tinton Falls, New Jersey facility
provided net cash proceeds therefrom equal or exceed $2,500,000;
(vii) the sale and leaseback of the Company s Oceanport, New
Jersey facility provided net cash proceeds therefrom equal or exceed
$10,000,000;
and
(viii) other Dispositions to which the Majority Lenders shall
have
consented.
The Agent shall execute such other releases in connection with Dispositions
permitted hereunder as the Company may reasonably request. Nothing herein shall
prohibit the Disposition by any Foreign Subsidiary of any of its assets.
9.25. Intentionally Omitted.
9.26. Intentionally Omitted.
9.27. Intentionally Omitted.
9.28. Intentionally Omitted.
9.29. Intentionally Omitted.
9.30. Intentionally Omitted.
9.31. Intentionally Omitted.
9.32. Intentionally Omitted.
9.33. Intentionally Omitted.
9.34. Intentionally Omitted.
9.35. Intentionally Omitted.
9.36. Intentionally Omitted.
9.37. Intentionally Omitted.
9.38. Financing Statements, Etc.
Without in any way limiting the obligations of
the Company under the Amended Security Agreement, at the request of the Agent,
the
Company shall (a) execute and deliver to the Agent a UCC-1 Financing Statement
to be
filed in the State of Maryland in form and substance satisfactory to the Agent,
and(b) reimburse the Agent in respect of any
filing fees or taxes paid by the Agent inconnection with such
filing.
Section 10. Specified Events and Events of Default. Each
of the following events shall be a Specified Event :
(a) The Company shall default in the (i) repayment when due of any
L/C Advance or the payment of interest on any L/C Advance or the payment of any
fees
described in Section 3.02(b) when due or (ii) the payment of any other amount
payable
by it hereunder or under any other Basic Document when due, if unremedied for
five (5)
days after notice thereof; or
(b) The Company or any of its Subsidiaries shall default in the
payment
when due of any principal of or interest on any of its other Indebtedness
aggregating
$2,000,000 or more; or any event specified in any note, agreement, indenture or
other
document evidencing or relating to any such Indebtedness aggregating $2,000,000
or
more shall occur if the effect of such event is to cause, or (with the giving of
any notice
or the lapse of time or both) to permit the holder or holders of such
Indebtedness (or a
trustee or agent on behalf of such holder or holders) to cause, such
Indebtedness to
become due, or to be prepaid in full (whether by redemption, purchase, offer to
purchase
or otherwise), prior to its stated maturity (or, in the case of an Interest Rate
Protection
Agreement, to permit the payments owing under such interest Rate Protection
Agreement to be liquidated), provided that no such payment default or event
occurring
with respect to the Indebtedness of any Foreign Subsidiary shall be deemed to
have
occurred for purposes of this paragraph (b) until such default or event shall
have
continued unremedied for 30 days or a related demand for payment under a
Foreign
Guaranty shall have been made; or
(c) Any representation, warranty or certification made or deemed made
in any Basic Document (or in any modification or supplement thereto) by the
Company,
or any certificate furnished to any Lender or the Agent pursuant to the
provisions
thereof, shall prove to have been false or misleading as of the time made or
furnished in
any material respect; or
(d) The Company shall default in the performance of any of its
obligations under any of Sections 9.01, 9.04, 9.05, 9.06, 9.07, 9.11, 9.16, 9.20
and 9.24,
hereof; or the Company shall default in the performance of any of its
obligations under
Section 4.02 or 5.02 of the Amended Security Agreement or any provisions of the
Mortgage; or the Company shall default in the performance of any of its other
obligations in this Agreement or any other Basic Document and such default shall
continue unremedied for a period of 10 days after notice thereof to the Company
by the
Agent or any Lender (through the Agent); or
(e) The Company or any of its Subsidiaries shall admit in writing its
inability to, or be generally unable to, pay its debts as such debts become due;
or
(f) The Company or any of its Subsidiaries shall (i) apply for or
consent
to the appointment of, or the taking of possession by, a receiver, custodian,
trustee or
liquidator of itself or of all or a substantial part of its Property, (ii) make
a general
assignment for the benefit of its creditors, (iii) commence a voluntary case
under the
bankruptcy Code (as now or hereafter in effect), (iv) file a petition seeking to
take
advantage of any other law relating to bankruptcy, insolvency, reorganization,
winding-up,
or composition or readjustment of debts, (v) fail to controvert in a timely and
appropriate
manner, or acquiesce in writing to, any petition filed against it in an
involuntary case
under the Bankruptcy Code, or (vi) take any corporate action for the purpose of
effecting
any of the foregoing (except, in each case, as contemplated by Section 9.03
hereof with
respect to a Foreign Subsidiary or an inoperative Subsidiary); or
(g) A proceeding or case shall be commenced, without the application
or consent of the Company or any of its Subsidiaries, in any court of competent
jurisdiction, seeking (i) its liquidation, reorganization, dissolution or
winding-up, or the
composition or readjustment of its debts; (ii) the appointment of a trustee,
receiver,
custodian, liquidator or the like of the Company or such Subsidiary or of all or
any
substantial part of its assets, or (iii) similar relief in respect of the
Company or such
Subsidiary under any law relating to bankruptcy, insolvency, reorganization,
winding-up,
or composition or adjustment of debts, and such proceeding or case shall
continue
undismissed, or an order, judgment or decree approving or ordering any of the
foregoing
shall be entered and continue unstayed and in effect, for a period of 60 or more
days; or
an order for relief against the Company or such Subsidiary shall be entered in
an
involuntary case under the Bankruptcy Code; or
(h) A final judgment or judgments for the payment of money in excess
of $2,000,000 in the aggregate (or any individual judgment in excess of
$1,000,000) shall
be rendered by a one or more courts, administrative tribunals or other bodies
having
jurisdiction against the Company and/or any of its Subsidiaries and the same
shall not be
discharged (or provision shall not be made for such discharge), or a stay of
execution
thereof shall not be procured within 30 days from the date of entry thereof and
the
Company or the relevant Subsidiary shall not, within said period of 30 days, or
such
longer period during which execution of the same shall have been stayed, appeal
therefrom and cause the execution thereof to be stayed during such appeal; or
(i) An event or condition specified in Section 9.01(e) hereof shall
occur
or exist with respect to any Plan or Multiemployer Plan and, as a result of
such event or
condition, together with all other such events or conditions, the Company or
any ERISA
Affiliate shall incur or in the opinion of the Majority Lenders shall be
reasonably likely to
incur a liability to a Plan, a Multiemployer Plan or PBGC (or any combination of
the
foregoing) which would constitute, in the determination of the Majority Lenders,
a
Material Adverse Effect;
(j) Except for expiration in accordance with its terms, any of the
Security Documents shall be terminated or shall cease to be in full force and
effect, for
whatever reason or the Company shall repudiate any of its obligations under any
of the
Basic Documents; or
(k) Any revocation of a building, operating, zoning or occupancy
permit
or approval (or the institution of proceedings seeking such a revocation and
such
proceedings shall not be discontinued with 30 days) shall occur with respect to
the
Company s facilities located in Tinton Falls or Oceanport, New Jersey, or any
destruction,
forfeiture, alienation, Condemnation or taking of a material portion of the
Collateral (as
defined in the Amended Security Agreement) or the Mortgaged Property (as defined
in
the Mortgage) in each case if such revocation or other event could have a
Material
Adverse Effect; or
(l) Any Person (which term, when used in this subsection (l), shall
include any two or more Persons acting as a partnership, limited partnership,
syndicate or
other group for the purpose of acquiring, holding or disposing of securities of
the
Company and any other meaning assigned to it in a successor provision to
Section 13(d)
of the Securities Exchange Act of 1934) is or becomes the beneficial owner
(which term,
when used in this subsection (l), shall include any Person who, directly or
indirectly,
through any contract, arrangement, understanding, relationship or otherwise
has or shares
(i) voting power which includes the power to vote or to direct the voting of
such security;
and/or (ii) investment power which includes the power to dispose or to direct
the
disposition of such security, or such other meaning assigned to it in a
successor provision
to Rule 13d-3 promulgated under the Securities Exchange Act of 1934), directly
or
indirectly, of voting stock (which term, when used in this subsection (l), shall
mean all
capital stock of the Company which by its terms may be voted on all matters
submitted to
stockholders of the Company generally) representing in excess of fifty percent
(50%) of
the votes entitled to be cast by the holders of all then outstanding shares of
the
Company; or
(m) During any period, commencing after the date of this Agreement,
individuals who at the beginning of such period were directors of the Company
(together
with any replacements or additional directors whose nomination for election or
election
was recommended by incumbent management of the Company or recommended or
approved by a majority of the board of directors then in office) cease to
constitute a
majority of the board of directors of the Company.
(n) An Event of Default shall have occurred under, and as defined
in,
the Loan and Security Agreement between the Company and Foothill dated as of
June 29, 1995, as amended, modified, supplemented and/or restated from time to
time.
A Specified Event shall become an Event of Default ( Event of Default ) as
follows: (1) in the case of the occurrence of any Specified Event referred to
in clause (a)
of this Section 10, such Specified Event shall automatically become an Event of
Default if
such Specified Event shall continue unremedied for 10 days; (2) in the case
of a
Specified
Event other than one referred to in clause (a) of this Section 10 or one with
respect to
the Company referred to in clause (f), (g) or (n) of this Section 10, such
Specified Event
shall become an Event of Default if the Agent shall at the direction of the
Majority
Lenders, by notice to the Company, declare such Specified Event to be an Event
of
Default; and (3) in the case of a Specified Event with respect to the Company
referred to
in clause (f), (g) or (n) of this Section 10, such Specified Event shall,
immediately upon
its occurrence, automatically become an Event of Default. Upon: (x) the
occurrence of
an Event of Default as provided above (other than one resulting from the
occurrence of a
Specified Event with respect to the Company referred to in clause (f) or (g)
of this
Section 10), the Agent shall at the direction of the Majority Lenders, by notice
to the
Company, declare all amounts payable by the Company hereunder and under the
other
Basic Documents to be forthwith due and payable, whereupon such amounts shall be
immediately due and payable without presentment, demand, protest or other
formalities
of any kind, all of which are hereby expressly waived by the Company; and (y)
upon the
occurrence of an Event of Default resulting from a Specified Event with respect
to the
Company referred to in clause (f), (g) or (n) of this Section 10, all amounts
payable by
the Company hereunder and the other Basic Documents shall automatically become
immediately due and payable without presentment, demand, protest or other
formalities
of any kind, all of which are hereby expressly waived by the Company. Any
Specified
Event or Event of Default waived in writing in accordance with Section 12.04
hereof shall
cease to exist.
Section 11. Acknowledgment of Agency, Etc. Upon any resignation or
replacement of the Agent, the retiring Agent shall give notice thereof to the
Company,
and the successor Agent shall be the Agent for all purposes hereof and under
the other
Basic Documents. The Company acknowledges that nothing in this Section 11 shall
give
it any right to replace, or veto the replacement of, the Agent or to direct the
Agent to
take, or not to take, any action.
Section 12. Miscellaneous.
12.01. Waiver. No failure on the part of the Agent or any Lender to
exercise and
no delay in exercising, and no course of dealing with respect to, any right,
power or
privilege under this Agreement or any other Basic Documents shall operate as a
waiver
thereof, nor shall any single or partial exercise of any right, power or
privilege under this
Agreement or any other Basic Documents preclude any other or further exercise
thereof
or the exercise of any other right, power or privilege, which exercise may be
concurrent
or subsequent to such other exercise. The remedies provided herein are
cumulative and
not exclusive of any remedies provided by law or in equity.
12.02. Notices. All notices and other communications provided for
herein and
under the Security Documents (including, without limitation, any modifications
of, or
waivers or consents under, this Agreement) shall be given or made in writing
(including,
without limitation, by telecopy) delivered to the intended recipient at the
Address for
Notices specified below its name on the signature pages hereof; or, as to any
party, at
such other address as shall be designated by such party in a notice to each
other party.
Except as otherwise provided in this Agreement, all such communications shall
be
deemed to have been duly given when transmitted by telecopier or personally
delivered
or, in the case of a mailed notice, upon receipt, in each case given or
addressed as
aforesaid.
12.03. Expenses, Etc. The Company agrees to pay or reimburse each of
the
Lenders and the Agent for paying: (a) the fees and expenses of the Agent and
the
Lenders described in Section 7.01(q) hereof (whether bills for such fees and
expenses are
delivered to the Company before or after the Closing Date); (b) all reasonable
costs and
expenses of the Lenders (but not of any Participants) and the Agent
(including
reasonable counsels fees) in connection with (i) any amendment, modification or
waiver
of any of the terms of this Agreement or any of the other Basic Documents; (ii)
routine
on-site field examinations of the Company s books and financial records
(provided that
there be no more than four such on-site examinations per year and the amount
the
Company shall be obligated to pay with respect thereto in any year shall not
exceed
$50,000) and additional travel expenses incurred at the request of the Company;
(iii) any
appraisals of real property subject to the Mortgage (provided that the amount
the
Company shall be obligated to pay with respect thereto in any year shall not
exceed
$40,000); (iv) any Default and any enforcement or collection proceedings
resulting
therefrom; and (v) the enforcement of this Section 12.03; (c) all transfer,
stamp,
documentary or other similar taxes, assessments or charges levied by any
governmental or
revenue authority in respect of this Agreement or any of the other Basic
Documents or
any other document referred to herein or therein and all costs, expenses,
taxes,
assessments and other charges incurred in connection with any filing,
registration,
recording or perfection of any security interest contemplated by this Agreement
or any
other Basic Document or any other document referred to herein or therein; and
(d) all
costs, expenses and other charges in respect of title insurance procured with
respect to
the Liens created pursuant to the Mortgage.
The Company hereby agrees to indemnify the Agent and each Lender and their
respective directors, officers, employees and agents for, and hold each of them
harmless
against, any and all losses, liabilities, claims, damages or expenses incurred
by any of
them (including any and all losses, liabilities, claims, damages or expenses
incurred by the
Agent to any Lender) arising out of or by reason of any investigation or
litigation or
other proceedings (including any threatened investigation or litigation or
other
proceedings) relating to the extensions of credit hereunder or any actual or
proposed use
by the Company or any of its Subsidiaries of the proceeds of any of the
extensions of
credit hereunder or any violation of Environmental Law, any Environmental Claim,
or
any Release or threatened Release of any Hazardous Material with respect to
the
Mortgaged Property (as defined in the Mortgage), including, without limitation,
the
reasonable fees and disbursements of counsel incurred in connection with any
such
investigation or litigation or other proceedings and any losses, liabilities,
claims, damages,
or expenses arising out of any violation of any Environmental Law, any
Environmental
Claims or any Release or threatened Release of any Hazardous Material which
shall
occur during any period when the Agent or any of the Lenders shall be in
possession of
the Mortgaged Property following the exercise by the Agent or any Lender of any
of its
rights and remedies hereunder or under any of the Security Documents (but
excluding
any such losses, liabilities, claims, damages or expenses incurred by reason of
the gross
negligence or willful misconduct of the Person to be indemnified).
Amounts payable under this Section 12.03 shall be payable 30 days after
receipt of
an invoice with respect thereto.
12.04. Amendments, Etc. Except as otherwise expressly provided in this
Agreement, any provision of this Agreement may be amended or otherwise modified
only
by an instrument in writing signed by the Company and the Majority Lenders, or
by the
Company and the Agent acting with the consent of the Majority Lenders, and
any
provision of this Agreement may be waived only by an instrument in writing
signed by the
Majority Lenders or by the Agent acting with the consent of the Majority
Lenders;
provided that no amendment, modification or waiver shall, unless by an
instrument signed
by all of the Lenders or by the Agent acting with the consent of all of the
Lenders: (i)
extend the expiry date of any Standby L/C, the date fixed for the repayment of
any L/C
Advance or any fee hereunder, (ii) reduce the amount of any such repayment,
(iii) reduce
the rate at which interest is payable thereon or any fee payable hereunder,
(iv) alter the
terms of Sections 5.07, 9.06, 9.07, 9.10, 9.24 or this Section 12.04, (v) amend
the
definition of the term Majority Lenders , or (vi) amend or waive any of the
conditions
precedent set forth in Section 7 hereof; and provided that any amendment,
waiver or
other modification that affects the rights or obligations of the Agent shall
require the
written consent of the Agent.
12.05. Successors and Assigns. This Agreement shall be binding upon
and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
12.06. Assignments and Participations.
(a) The Company may not assign its rights or obligations hereunder or
under any other Basic Document without the prior consent of all of the Lenders
and the
Agent; any such assignment made in violation of this Section shall be null and
void.
(b) Each Lender may assign all or any of its L/C Advances to any
Person, provided that if such assignment is a partial assignment, it shall be
in an amount
at least equal to $500,000. Upon execution and delivery by the assignee to the
Company
and the Agent of an instrument in writing pursuant to which such assignee agrees
to
become a Lender hereunder (if not already a Lender) having the L/C Advances
specified in such instrument, and upon receipt by the Agent of a copy of such
instrument,
the assignee shall have, to the extent of such assignment, the obligations,
rights and
benefits of a Lender hereunder holding the L/C Advances (or portions thereof)
assigned
to it (in addition to the L/C Advances, if any, theretofore held by such
assignee). Upon
each such assignment the assigning Lender shall pay the Agent an assignment
fee of
$1,000.
(c) A Lender may sell or agree to sell to one or more other Persons a
participation in all or any part of any L/C Advances held by it, which purchaser
of a
participation (a Participant ) shall not have any rights or benefits under this
Agreement
or any other Basic Document (the Participant s rights against such Lender in
respect of
such participation to be those set forth in the agreements executed by such
Lender in
favor of the Participant). All amounts payable by the Company to any Lender
under
Section 6 hereof in respect of L/C Advances held by it shall be determined as
if such
Lender had not sold or agreed to sell any Participations in such L/C Advances.
In no
event shall a Lender that sells a participation agree with the Participant to
take or refrain
from taking any action hereunder or under any other Basic Document except that
such
Lender may agree with the Participant that it will not, without the consent of
the
Participant, agree to (i) extend the expiry date of any Standby L/C, the date
fixed for the
repayment of any L/C Advance or the payment of any fee hereunder, (ii) reduce
the
amount of any such repayment, (iii) reduce the rate at which interest is
payable thereon,
or any fee hereunder payable to the Participant, to a level below the rate at
which the
Participant is entitled to receive such interest or fee, or (iv) consent to any
modification,
supplement or waiver of Section 5.07 hereof or the definition of Majority
Lenders .
(d) Intentionally Omitted.
(e) Subject to Section 12.07(g) a Lender may furnish any information
concerning the Company or any of its Subsidiaries in the possession of such
Lender from
time to time to assignees and participants (including prospective assignees and
participants).
(f) The Company shall not have any obligation to pay any expenses
incurred by any Person in connection with any assignment of or participation in
the L/C
Advances.
(g) No Person that becomes a Lender or a Participant shall be
entitled
to any non-public information required to be delivered by the Company hereunder
unless
such Person agrees in writing to keep confidential any such information
designated by the
Company as a trade secret and acknowledges in writing that possession of
non-public
information concerning the Company gives rise to obligations under the Federal
Securities laws.
12.07. Survival. The obligations of the Company under Sections 6.01
and 12.03
hereof and the indemnification obligations of the Lenders under the Amended
Intercreditor Agreement shall survive the expiration of the Standby L/C s or the
repayment of the L/C Advances. In addition, each representation and warranty
made
herein or pursuant hereto shall survive the making of such representation and
warranty,
and no Lender shall be deemed to have waived, by reason of making any extension
of
credit hereunder, any Default which may arise by reason of such representation
or
warranty proving to have been false or misleading, notwithstanding that such
Lender or
the Agent may have had notice or knowledge or reason to believe that such
representation or warranty was false or misleading at the time such extension
of credit
was made.
12.08. Captions. The table of contents and captions and section
headings
appearing herein are included solely for convenience of reference and are not
intended to
affect the interpretation of any provision of this Agreement.
12.09. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument
and any of the parties hereto may execute this Agreement by signing any such
counterpart.
12.10. Governing Law; Submission to Jurisdiction. This Agreement and
the Notes
shall be governed by, and construed in accordance with, the law of The
Commonwealth
of Massachusetts. The Company hereby submits to the nonexclusive jurisdiction
of the
United States District Court for the District of Massachusetts and of any
Massachusetts
state court sitting in Boston for the purposes of all legal proceedings arising
out of or
relating to this Agreement or the transactions contemplated hereby.
The Company
irrevocably waives, to the fullest extent permitted by law, any objection which
it may now
or hereafter have to the laying of the venue of any such proceeding brought in
such a
court and any claim that any such proceeding brought in such a court has been
brought
in an inconvenient forum.
12.11. Waiver of Jury Trial. EACH OF THE COMPANY, THE AGENT AND
EACH OF THE LENDERS HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
12.12. No Third Party Beneficiaries. Nothing herein is intended to, or
shall,
confer on any Person (other than the parties hereto and their respective
permitted
successors and assigns) any right or benefit.
12.13. Entire Agreement. This Agreement (including the Schedules and
Exhibits
hereto) together with the other Basic Documents and documents delivered
pursuant to
Section 7 hereof constitute the entire agreement and understanding of the
parties hereto
with respect to the transactions contemplated by this Agreement.
12.14. Severability. If any provision hereof is invalid and
enforceable in any
jurisdiction, then, to the fullest extent permitted by law, (i) the other
provisions hereof
shall remain in full force and effect in such jurisdiction and shall be
liberally construed in
favor of the Agent and the Lenders in order to carry out the intentions of the
parties
hereto as nearly as may be possible and (ii) the invalidity or unenforceability
of any
provision hereof in any jurisdiction shall not affect the validity or
enforceability of such
provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
CONCURRENT COMPUTER CORPORATION
By:/s/ ▇▇▇▇▇ ▇. Dell
▇▇▇▇▇ ▇. Dell
Title: Vice President, General
Counsel and Secretary
Address for Notices:
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▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Dell, Esq.
FLEET BANK OF MASSACHUSETTS, N.A.,
as Agent
By: /S/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Lending Office:
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Address for Notices:
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
CIBC INC., as Lender
By: /S/ ▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Lending Office:
Embarcadero Center
West Tower
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Address for Notices:
Embarcadero Center
West Tower
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
FLEET BANK OF MASSACHUSETTS, N.A.,
as Lender
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Title: Vice President
Lending Office:
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Address for Notices:
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190781.c5
6/29/95 8:10 pm
EXHIBIT A
[Form of Section 9.01 Compliance Certificate]
CIBC Inc., as Lender
Embarcadero Center
West Tower
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Fleet Bank of Massachusetts, N.A., as
Lender and as Agent
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Ladies and Gentlemen:
Pursuant to the provisions of Section 9.01 of that certain Third Amended
and
Restated Credit Agreement dated as of June
29,
1995 (the Credit Agreement ) between
you and Concurrent Computer Corporation, a Delaware corporation (the
Borrower ),
the undersigned hereby certifies as follows:
1. except as heretofore disclosed in a previous Compliance Certificate,
there has been no change (i) in the Borrower s charter documents as
certified to the Lenders and Agent at closing, or (ii) in the
incumbency of the officers of the Borrower whose signatures were
certified to the Lenders and Agent at closing;
2. the undersigned has caused the provisions of the Credit Agreement
to be reviewed and no Default has occurred and is continuing; and
3. any changes in the chief executive office of the Borrower and any
additional places of business and locations of personal property that
have arisen since the last Compliance Certificate are as set forth on
Schedule I attached hereto.
Terms defined in the Credit Agreement and not otherwise expressly defined
herein are used herein with the meanings so defined in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate on
this 29th day of June, 1995.
By: /S/ ▇▇▇▇▇ ▇. Dell
▇▇▇▇▇ ▇. Dell
Vice President, General
Counsel and Secretary
SCHEDULE I
To Compliance Certificate
Change in chief executive office and additional places of business and
locations of personal property as follows:
