REVOLVING CREDIT LOAN AGREEMENT
Dated as of March 13, 1998
Among
▇▇▇▇▇▇▇▇▇ TECHNOLOGIES INCORPORATED
▇▇▇▇▇▇▇▇▇ INSTRUMENTS. INC.
▇▇▇▇▇▇▇▇▇ RESEARCH LIMITED
and
FLEET BANK, N.A.
THIS REVOLVING CREDIT AGREEMENT dated as of March [13], 1998 (the
"Agreement"), among ▇▇▇▇▇▇▇▇▇ TECHNOLOGIES INCORPORATED, a Delaware corporation
("BORROWER" or "BTI"), ▇▇▇▇▇▇▇▇▇ INSTRUMENTS, INC., a Delaware corporation
("BII"), and ▇▇▇▇▇▇▇▇▇ RESEARCH LIMITED, a Canadian corporation ("BRL") and
FLEET BANK, N.A. (together with any successors and assigns, the "Lender").
BACKGROUND
WHEREAS, Borrower has requested Lender to extend a credit facility to
the Borrower to enable Borrower to borrow up to FIVE MILLION AND 00/100 DOLLARS
($5,000,000.00) (the "Revolving Credit") on a revolving basis; and
WHEREAS, all the documents described hereunder that evidence and secure
the Revolving Credit, including, but not limited to, all notes, guarantees, and
other collateral documents, are referred to herein collectively as the "Loan
Documents"; and
WHEREAS, Lender has agreed to extend such credit to the Borrower upon
the terms and conditions set forth in this Agreement.
In consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, and
intending to be legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1 Definitions. As used in this Agreement, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Account" is as defined under the UCC.
"Advance" is as defined in Section 2.1 hereof.
"Advance Request" means a request for an Advance submitted in
accordance with subsection 2.1.1 hereof.
"Affiliate" means any other Person who controls, is controlled by or is
under common control with another Person.
"Agreement" means this agreement, as amended, restated, extended,
supplemented or modified from time to time.
"Applicable Interest Rate" shall mean the interest rate, as it may be
changed from time to time, in accordance with the terms hereof, due on an
Advance during an Interest Period. The Applicable Interest Rate shall equal, at
Borrower's option, Base Interest Rate (the "Base Rate Option") or the LIBOR
Interest Rate (the "LIBOR Option").
"Base Interest Period" shall mean a period of time from and including
the date of any Advance to and including the last day that any Advance bears
interest at the Base Interest Rate.
"Base Interest Rate" shall be a variable interest rate equal to the
Prime Rate, less 0.75%.
"BTI" shall mean ▇▇▇▇▇▇▇▇▇ Technologies Incorporated, a Delaware
corporation, with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
"BII" shall mean ▇▇▇▇▇▇▇▇▇ Instruments, Inc., a New Jersey corporation,
with offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
"BRL" shall mean ▇▇▇▇▇▇▇▇▇ Research Limited, a Canadian corporation
with offices at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ L4W IVI.
"Books and Records" means all books, records, tapes, information, data,
stored material, computer media, passwords, access codes arising or related to
Borrower's business, now existing or hereafter acquired.
"Borrower" means BTI.
"Business Day" means a day other than a Saturday, Sunday, or other day
on which banks are authorized or required to close under the laws of New Jersey
or under Federal law.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act, as amended from time to time.
"Chattel Paper" is as defined in the UCC.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral" means all property that may secure any of the Liabilities
(including, without limitation, all amounts payable or deliverable under the
Loan Documents, and all proceeds of the foregoing in whatever form received, in
each case whether now owned or hereafter acquired.)
"Company" means BTI, BII and BRL.
"Consolidated" refers to the consolidation of the accounts of Borrower
in accordance with GAAP, including principles of consolidation.
"Consolidating" refers to the separate entity reporting and
consolidation of the accounts of Borrower and its subsidiaries in accordance
with GAAP, to the best efforts of Borrower.
"Contingent Liabilities" means all liabilities that must be classified
as contingent liabilities of Borrower under GAAP.
"Controlled Group" means all trades or businesses which are under
common control (as defined in ss.4001(b)(1) of ERISA) with Borrower.
"Credit Obligation" means any obligation in excess of $100,000.00 for
the payment of borrowed money, the installment purchase price of property or on
account of a lease of property that is capitalized under GAAP, and shall also
mean any obligation under a guaranty or suretyship agreement covering
obligations of such type.
"Current Assets" means all assets of the applicable person that are
classified as current assets under GAAP.
"Current Liabilities" means all liabilities of Borrower that are
classified as current liabilities under GAAP.
"Current Ratio" means the ratio of Current Assets to Current
Liabilities.
"Default" means the occurrence or non-occurrence of an event that, but
for the giving of notice, the passage of time or both, constitutes an Event of
Default.
"Default Rate" means the Prime Rate plus 3%.
"Defined Benefit Pension Plan" means an employee benefit pension plan
(other than a Multiemployer Plan) covered by Title IV of ERISA as provided in
Section 4021 of ERISA.
"Defined Contribution Plan" means an individual account plan as defined
in ss.3(34) of ERISA.
"Document" is as defined in the UCC as in effect on the date hereof.
"Employee Benefit Plan" has the meaning given to such term in ss.3(3)
of ERISA.
"Environmental Law" means any federal, state or local statute, law,
ordinance, regulation, rule, standard, permit or requirement, including but not
limited to those statutes, ordinances, laws, regulations, rules, standards,
permits and requirements promulgated under the laws of the United States of
America or any other nation, concerning or relating to the generation,
treatment, storage, transportation, disposal and release into the environment,
cleanup and remediation of any "hazardous substance", as that term is defined in
CERCLA.
"ERISA" means the Employee Retirement Income Security Act of 1974 and
the regulations issued thereunder, as amended from time to time.
"Equipment" is as defined in the UCC.
"Event of Default" is as defined in Section 7.1.
"Funded Debt" means the sum of (A) the outstanding principal balance of
the Advances, plus (B) the outstanding principal amount of any other
indebtedness of Borrower (including without limitation, current maturities
thereof, but excluding trade payables, accrued expenses, current installments of
obligations not to compete, and taxes payable), plus (C) any obligation of the
Borrower for the payment of borrowed money or the installment purchase price of
property or on account of a lease of property capitalized under GAAP, and shall
also mean any obligation of Borrower under a guaranty or suretyship agreement
covering obligations of such type.
"GAAP" means generally accepted accounting principles, as in effect in
the United States as of the date of the Agreement, applied in a consistent
manner.
"General Intangible" is as defined in the UCC.
"Guarantor" means BII, and any other entity that may become a party to
this Agreement.
"Instrument" is as defined in the UCC.
"Interest Period" shall mean a LIBOR Interest Period or a Base Interest
Period.
"Inventory" is as defined in the UCC.
"Landlord's Waiver" means an instrument (in form satisfactory to
Lender) by which an owner of real property in which any Borrower is a tenant or
occupant waives its right to distrain on any of the Collateral, and by which
such owner grants to Lender the right (but not the obligation) to cure any
default by Borrower under the applicable lease.
"Lender" shall mean Fleet Bank, N.A., its successors or assigns.
"Leverage Ratio" means Total Liabilities divided by Tangible Net Worth.
"Liabilities" shall mean all principal, interest and fees due under the
Loan and all other liabilities of Borrower to Lender, whether absolute or
contingent, matured or unmatured, direct or indirect, sole, joint, several, or
joint and several, similar or dissimilar, arising under the Loan Documents, due
or to become due or heretofore or hereafter contracted or acquired under the
Loan Documents.
"LIBOR Interest Period" shall mean a period of time beginning on and
including the date of any Advance and ending on and including the last day of
the 30th, 60th or 90th day period (as selected by the Borrower in its Advance
Request with respect thereto) following the date of any Advance, and,
thereafter, a 30, 60 or 90 day period, as selected by the Borrower by
irrevocable notice to Lender given not less than three (3) Business Days prior
to the date of any new Advance or the last day of the then current Interest
Period with respect thereto, through and including the Maturity Date.
"LIBOR Interest Rate" shall mean an interest rate based upon the LIBOR
Rate, plus 2.0%.
"LIBOR Rate" shall mean the London Interbank Offered Rate for thirty
(30), sixty (60) or ninety (90) day U.S. Dollar deposits determined by Lender as
of the date of each Advance or the date which is the beginning of the LIBOR
Interest Period by reference to the offered rates that appear in The Wall Street
Journal (Eastern Edition) under the heading "London Interbank Offered Rates
(LIBOR)" of the "Money Rates" column on the Advance date (or if The Wall Street
Journal is not published on such date with such information, the next preceding
date on which The Wall Street Journal is published with such information). If
The Wall Street Journal ceases publication or ceases to publish the applicable
LIBOR Rate, Lender shall select a comparable publication or alternative means to
determine the applicable LIBOR Rate (such as the Telerate or Reuters systems)
and provide notice thereof to Borrower. The establishment of the LIBOR Rate by
Lender as of each Advance date and Lender's calculation of the Applicable
Interest Rate for an Interest Period shall (in the absence of manifest error) be
final and binding. The LIBOR Rate may not be the lowest LIBOR Rate available for
U.S. Dollar deposits in the London interbank Eurodollar market as of the date
for which the LIBOR Rate is determined by Lender.
"Loan" means the Revolving Credit.
"Loan Documents" means this Agreement, the Note and all other documents
executed and delivered in connection with the Loan.
"Multiemployer Plan" has the meaning given to such term in ss.3 (37) of
ERISA.
"Net Income" means total revenues from operations, less expenses
(including interest expenses and taxes), determined in accordance with GAAP,
except charges resulting solely from the accounting for costs resulting from
certain future acquisitions.
"Note" means the Revolving Credit Note.
"PBGC" means the Pension Benefit Guaranty Corporation.
"Permitted Encumbrances" means (A) liens for taxes not yet delinquent;
(B) statutory inchoate liens in connection with workmen's compensation,
unemployment insurance, or other social security obligations; (C) mechanic's,
▇▇▇▇▇▇▇'▇, materialman's, landlord's, carrier's, or other similar liens arising
in the ordinary course of business with respect to obligations that are not due;
and (D) liens in favor of Lender.
"Person" mean an individual, corporation, partnership, limited
liability company, trust or any other entity.
"Plan" means an Employee Benefit Plan or other plan maintained for
employees of Borrower or any member of its Controlled Group and covered by
ERISA.
"Prime Rate" means the per annum index rate established and announced
from time to time by Lender as its "Prime Rate," and used by Lender in
establishing interest rates on some of its commercial Loan, and such term is not
intended to imply that such Prime Rate is, nor is such Prime Rate necessarily,
the lowest rate of interest charged by Lender on any type of commercial Loan.
"Prohibited Transaction" has the meaning given to such term in ss.406
of ERISA or regulations issued thereunder.
"Purchaser" means a buyer of goods from Borrower or a customer for whom
services have been rendered or materials furnished by Borrower.
"Reorganization" has the meaning given such term in ss.4241 of ERISA.
"Reportable Event" has the meaning given to such term in ss.4043 (b) of
ERISA or regulations issued thereunder.
"Revolving Credit" means the $5,000,000 revolving credit facility given
by Lender to Borrower, as more particularly described in Section 2.1.
"Revolving Credit Limit" means $5,000,000, less the aggregate of the
outstanding principal balance of all Advances made under the Revolving Credit
Note.
"Revolving Credit Expiration Date" means June 30, 1999, as extended
from time to time, except that Lender may, in Lender's sole discretion, extend
the Revolving Credit Expiration Date for an additional year from each Revolving
Credit Expiration Date.
"Revolving Credit Note" means Borrower's note in the form of Exhibit
2.3 evidencing the Revolving Credit.
"Subsidiary" means any person of which more than 50% of the voting
capital stock or other ownership interests is owned, directly or indirectly, by
another Person.
"Tangible Net Worth" means, at any time, the sum of (A) the par value
(or value stated on the books of such person) of the capital stock of all
classes of stock, plus (or minus in the case of a deficit) (B) the paid-in
capital in excess of par plus retained earnings, including undistributed
corporation earnings of all of Borrower, and shall not include minority
interests or intangible assets, as determined in accordance with GAAP.
"Total Liabilities" means all liabilities of a person under GAAP
definitions and shall not include minority interests, as defined under GAAP.
"UCC" shall mean the New Jersey Uniform Commercial Code, N.J.S.A.
12A:1-101 et seq., as from time to time amended.
"Withdrawal Liability" has the meaning given such term in 4201 of
ERISA.
SECTION 1.2 Accounting Terms. All accounting terms not specifically
defined herein shall be construed in accordance with GAAP and all financial data
submitted pursuant to this Agreement shall, if applicable, be prepared in
accordance with GAAP.
ARTICLE II
THE LOAN
SECTION 2.1 The Revolving Credit. Subject to the terms and conditions
hereinafter provided, Lender shall advance to Borrower, from time to time during
the period from the date hereof to and including the Revolving Credit Expiration
Date, such sums as Borrower may request (each such advance, an "Advance") in an
outstanding aggregate principal amount not to exceed the Revolving Credit Limit.
Borrower agrees that Advances shall only be used for working capital purposes,
for capital expenditures in the ordinary course of business and for general
corporate purposes. Advances may also be used for the issuance of standby
letters of credit and, provided the Borrower has received Lender's prior written
approval, for corporate acquisitions. The stated amount of a standby letter of
credit while outstanding shall reduce the Revolving Credit Limit. Any use of
Advances to support acquisitions or to repurchase Borrower's stock requires
Lender's prior written consent. If the aggregate amount of the Advances
outstanding at any time exceeds the Revolving Credit Limit, then Borrower shall
repay immediately the amount of such excess. Borrower may borrow, repay and
reborrow amounts available under the Revolving Credit until but not including
the Revolving Credit Expiration Date, subject to the terms and conditions of
this Agreement and provided that the outstanding Advances shall at no time
exceed the Revolving Credit Limit.
SECTION 2.1.1 Making the Advances. (A) Borrower may request an Advance
(each an "Advance Request") by telephone or in writing (including by facsimile
copy) by 11:00 a.m. of the Business Day on which the requested Advance is to be
made. All Advance Requests shall be signed by an officer of Borrower and shall
state the date and amount of the proposed Advance, the applicable Interest Rate
and Interest Period, if applicable, and directions for making the proposed
Advance. Any telephonic Advance Requests shall be confirmed by Borrower in
writing on the same day by facsimile copy, and the original executed Advance
Request shall subsequently be submitted to Lender.
(B) Each Advance Request shall constitute a representation that, at the
time thereof and giving effect to the Advance requested thereby, (1) no Event of
Default or Default has occurred and is continuing hereunder; (2) the
representations and warranties contained herein are expressly reaffirmed and are
correct as of the date of such Advance Request and will be correct as of the
date on which the Advance is to be made (except to the extent that such
representation or warranty applies to an earlier date, in which event it shall
be reaffirmed and correct as of such earlier date); and (3) the sum of the
outstanding Advances plus the requested Advance will not exceed the Revolving
Credit Limit. Lender shall make any such Advance available to Borrower in such
manner as Borrower may reasonably request in the Advance Request. Borrower shall
hold Lender harmless from any liability for any loss resulting from Lender's
reliance on any writing or facsimile copy purportedly made by any officer of any
Borrower. Lender's books and records shall be deemed conclusive evidence of
whether or not an Advance Request was made and the terms thereof. Each Advance
Request shall be irrevocable once submitted to Lender, whether submitted by
telephone or by facsimile copy.
SECTION 2.1.2 Interest Rates; Interest Payments on the Advances.
(A) Interest Rate. Each Advance shall bear interest at the then current
Applicable Interest Rate until a new Applicable Interest Rate is determined for
each Interest Period in accordance with the provisions hereof. If Lender at any
time determines, in its reasonable discretion, that Lender has miscalculated the
amount of a payment due to Lender (whether because of a miscalculation of the
Applicable Interest Rate or otherwise), Lender shall give notice to Borrower of
the corrected amount of such payment and
(i) if the corrected amount of such payment represents an
increase over the payment actually made, Borrower
shall, within ten (10) calendar days thereafter, pay to
Lender any additional sums that Lender determines that
Borrower should have made but for such miscalculation,
or;
(ii) if the corrected amount of such payment represents a
decrease below the payment actually made and Borrower
is not otherwise in default under any of the terms and
provisions of the Loan Documents, Lender shall, within
(10) calendar days thereafter, pay to Borrower the sums
that Borrower otherwise would not have been obligated
to pay to Lender but for such miscalculation.
The Borrower shall select an Applicable Interest Rate for each Advance,
and absent an affirmative selection by the Borrower, each Advance shall be
presumed to be at the Base Interest Rate. If any Advance bears interest at the
Base Interest Rate and at the end of any LIBOR Interest Period for an Advance,
the Borrower may select the LIBOR Option, and if the LIBOR Option is not
selected at the expiration of any LIBOR Interest Period, the interest rate on
such Advance shall convert to the Base Rate Option until the Borrower again
selects the LIBOR Option.
(B) Interest Payments on Advances. Borrower shall pay interest on the
unpaid principal amounts of all Advances made under the Revolving Credit from
the respective dates on which such Advances are disbursed until such Advances
have been repaid in full. Borrower shall pay interest on the Advances in arrears
on the last day of each month, commencing on the end of the month following the
date of such Advance and continuing until the Revolving Credit Expiration Date,
on which date Borrower shall pay the outstanding principal of all Advances, plus
all accrued and unpaid interest thereon and any other fees and costs due in
connection with the Revolving Credit. Notwithstanding the foregoing, interest on
an Advance bearing interest at the LIBOR interest Rate shall be payable at the
end of the applicable LIBOR Interest Period.
SECTION 2.1.3 Repayment of the Revolving Credit; Reduction of the
Revolving Credit Limit. (A) Lender shall have no obligation to fund Advance
Requests under the Revolving Credit received after 11:00 a.m. on the Revolving
Credit Expiration Date. Borrower shall pay the outstanding balance of all
Advances, plus all accrued and unpaid interest thereon and any other fees and
costs due in connection with the Revolving Credit, on the Revolving Credit
Expiration Date.
(B) Reduction or Cancellation of Revolving Credit Limit. At any time
and from time to time, Borrower may, upon at least five (5) Business Days
written notice to Lender, reduce the unutilized portion of the Revolving Credit
Limit by $100,000.00 or integral multiples thereof or terminate the Revolving
Credit. Each such notice shall specify the date upon which such reduction or
termination is to become effective, and shall be irrevocable. Any such
termination or reduction of the Revolving Credit Limit shall be permanent.
SECTION 2.2 Prepayments. (A) Except as provided in Subsection (B),
Borrower may prepay any or ail unpaid principal of the Loan without penalty or
premium provided that if such prepayment is less than the entire principal
amount of the Advances, then such prepayment shall be in the amount of
$10,000.00 or multiples thereof.
(B) LIBOR Interest Rate Prepayment Penalties. If the Borrower repays an
Advance that is bearing interest at the LIBOR Interest Rate on a date other than
the last day of the LIBOR Interest Period for that particular Advance, Borrower
shall pay a prepayment premium in lieu of the payment of interest equal to the
amount of the interest that would have been payable at the end of the LIBOR
Interest Period on the prepayment amount when discounted to a present value at a
rate per annum equal to the yield to maturity of the "Applicable Treasury Bond
Obligation(s)". The "Applicable Treasury Bond Obligation(s)" shall mean a debt
obligation of the United States Treasury having a maturity date nearest in time
to the expiration of the LIBOR Interest Period of the principal being prepaid.
The maturity date and yield to maturity of such Applicable Treasury Bond
Obligation(s) shall be determined by Lender in its reasonable discretion on the
basis of quotations published in The Wall Street Journal (or comparable source
on the date of prepayment).
SECTION 2.3 Note. (A) The obligations of Borrower to repay Advances
under the Revolving Credit are evidenced by a promissory note, dated the date of
this Agreement, payable to the order of Lender, in the principal amount of the
Revolving Credit and otherwise substantially in the form of Exhibit 2.3 attached
hereto.
SECTION 2.4 Fees. Borrower shall pay an annual commitment fee to Lender
on the Revolving Credit, which fee shall equal one-half of one percent (0.50%)
of the Revolving Credit measured on a per annum basis and payable as of the end
of each of Borrower's fiscal quarters.
SECTION 2.5 Place and Manner of Payments. Borrower agrees to make all
payments on account of principal, interest, the fees or any other sums due under
any of the Loan Documents without setoff or counterclaim to Lender at Lender's
office located at its address specified in Section 8.2 below, at or before 3:00
p.m. New Jersey time on the date due, in lawful money of the United States of
America. All payments received by Lender from Borrower shall be applied in the
following order: (A) to the payment of fees and other costs and expenses then
due and owing from Borrower, (B) to the payment of accrued and unpaid interest
then due, (C) to the payment of any other amounts outstanding under the
Revolving Credit.
SECTION 2.6 Computation of Interest. The interest on the amounts
outstanding under the Loan shall be computed on the basis of a year of 365 days
for the actual number of days elapsed.
SECTION 2.7 Late Charges; Default Rate. (A) If Borrower fails to make
any payment required hereunder or under any of the other Loan Documents within
ten (10) days of the date when due, Borrower shall pay to Lender a late charge
equal to three percent (3%) of the amount of such late payment as a late charge,
not to exceed $2,500.00. Late charges assessed by Lender are immediately due and
payable. Payments are deemed made on the Business Day that payment is received
by Lender, except that payments received after 3:00 p.m. New Jersey time will be
deemed received on the next Business Day.
(B) After an Event of Default, the interest rate then in effect on the
Loan immediately shall be increased to the Default Rate, and each time that the
Prime Rate changes, the Default Rate applicable to the Loan shall change
simultaneously therewith, without notice to Borrower.
SECTION 2.8. Clean Up Period. Borrower shall, for thirty (30)
consecutive between the date of this Agreement and December 31, 1998, and during
each subsequent twelve (12) month period, reduce the outstanding principal
balance of all Advances to zero.
ARTICLE III
COLLATERAL
SECTION 3.1 Collateral. The Revolving Credit is unsecured. However
Borrower, BII and BRL each covenants and agrees that neither Borrower, BII or
BRL will grant, pledge or assign to any Person a security interest in any of
their respective assets, whether now owned or hereafter acquired, including,
without limitation, (A) Accounts, Chattel Paper, Equipment (whether or not
constituting fixtures), Documents, Instruments, General Intangibles (including,
but not limited to, any and all interests in trademarks, service marks, patents,
licenses, permits, and copyrights), (B) Inventory of Borrower, if any, held by
any Borrower for sale or lease or to be furnished under contracts of service,
(C) Books and Records, or (D) all proceeds and products of the foregoing,
including casualty insurance thereon, now owned or hereafter acquired by
Borrower, BII or BRL (herein defined as "Collateral").
SECTION 3.2 Records and Reports. Borrower, BII and BRL shall keep
accurate and complete records of their respective Accounts (and the collection
thereof), General Intangibles, Chattel Paper, Instruments, Documents and
Inventory and furnish Lender such information about Borrower's Accounts, General
Intangibles, Chattel Paper, Instruments, Documents, and Inventory as Lender may
reasonably request. Lender shall have the right, upon reasonable notice during
regular business hours, to conduct periodic examinations and verifications of
their Books and Records, which examination may include, without limitation,
verifications of Accounts by contacting Purchasers. Borrower, BII and BRL agree,
upon reasonable notice during regular business hours, to make their Books and
Records available to Lender at Borrowers' principal place of business for
purposes of such examination. Provided that there does not exist an Event of
Default, Lender agrees to give at least one week written notice of such
examination and to conduct such examination during normal business hours.
Borrower, BII and BRL shall reimburse Lender for the costs and expenses (whether
internal or external) of any such examination, but only if Borrower, BII or BRL
is in default at the time of examination.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.1 General Conditions Precedent to Lender's Obligations.
Lender's obligations hereunder are subject to the conditions precedent that
Lender shall have received all of the following, in form and substance
satisfactory to Lender:
(A) a copy, certified in writing by the Secretary or an Assistant
Secretary of BTI, BII and BRL, of (1) resolutions of the Board of Directors of
such entity evidencing approval of the Loan Documents by such entity and the
matters contemplated thereby, (2) each document evidencing other necessary
corporate action and governmental approvals, if any, with respect to the Loan
Documents, and (3) such entity's charter documents and by-laws;
(B) a favorable opinion of independent counsel(s) for BTI, BII and BRL
on such matters and in form and substance acceptable to Lender;
(C) a written certificate by the Secretary or an Assistant Secretary of
BIT, BII and BRL as to the names and signatures of the officers of such entity
authorized to sign the Loan Documents to which such entity is a party and the
other documents or certificates of such entity to be executed and delivered
pursuant thereto;
(D) recent certificates, issued by the Secretary of State of the states
or applicable governmental official for any foreign entity in which BTI, BII or
BRL is incorporated, stating that such entity is a corporation duly incorporated
and in good standing under the laws of that state;
(E) recent certificates, issued by the Secretaries of State of each
state in which BTI, BII or BRL is required to qualify to do business, stating
that such entity is in good standing as a foreign corporation under the laws of
such state;
(F) the executed Revolving Credit Note;
(G) the financial information required by Section 5.4 hereof relating
to BTI, BII and BRL;
(H) evidence of insurance policies in form and substance satisfactory
to Lender in such amounts and with such insurance companies as are acceptable to
Lender, insuring BTI, BII and BRL against such risks and with such coverage
(including, without limitation, property damage, workmen's compensation, public
liability, products liability, fire with extended coverage, vandalism, malicious
mischief, and flood) as may be customary for the business being conducted by
BTI, BII and BRL; with each policy of insurance providing that it will not be
terminated or otherwise modified adversely to Lender's interest without at least
30 days' prior written notice to Lender;
(I) a lien search prepared by a search company acceptable to Lender
showing that no perfected liens exist of record against any of the assets of
BTI, BII and BRL;
(J) such evidence as Lender may reasonably require that BTI, BII and
BRL have all licenses and permits necessary and material to the conduct of their
business as now being conducted, together with copies of all such licenses and
permits;
(K) evidence that BTI, BII and BRL have paid or have made arrangements
satisfactory to Lender to pay all fees, costs and expenses incurred in
connection with the transactions contemplated hereby including, without
limitation, the fees and expenses of Lender's counsel; and
(L) such other documents as Lender may reasonably require.
SECTION 4.2 Additional Conditions Precedent. The obligations of Lender
hereunder are subject to the further conditions precedent that:
(A) the representations and warranties contained in this Agreement, and
in the other Loan Documents shall be correct and accurate in all material
respects on and as of the date of each Advance as though made on and as of such
date (excluding representations and warranties which only speak as of a certain
date);
(B) no Default or Event of Default shall have occurred and be
continuing or will result from the making of any Advance;
(C) there shall have occurred no material adverse change in the
financial condition, or results of operations or prospects of BTI or BII since
the effective date of the most recent financial statements provided to Lender.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
In addition to all other representations and warranties set forth in
this Agreement, BTI, BII and BRL represent and warrant as follows:
SECTION 5.1 Existence. Each entity is a corporation duly incorporated,
validly existing, and in good standing under the laws of the jurisdiction of its
incorporation. Each entity has all requisite power and authority, corporate and
otherwise, to conduct its business and to own its properties and is duly
qualified as a foreign corporation in good standing in all other jurisdictions
in which its failure so to qualify would have a material adverse effect on the
financial condition or business of BTI, BII and BRL on a Consolidated Basis (a
"Material Adverse Effect").
SECTION 5.2 Authorization. The execution, delivery, and performance by
each entity of each Loan Document to which it is a party has been duly
authorized by all necessary corporate action, and does not violate any provision
of the charter or by-laws of such entity and will not result in a breach of or
constitute a default under any agreement, indenture, or instrument to which such
entity is a party or by which such entity, or any of its properties, may be
bound or affected which would have a Material Adverse Effect.
SECTION 5.3 Validity of Documents. Each Loan Document when duly
executed and delivered will constitute the valid and legally binding obligation
of the party executing it, enforceable in accordance with its terms, except as
such enforceability may be limited by bankruptcy, insolvency, or other similar
laws affecting the enforcement of creditors' rights generally.
SECTION 5.4 Financial Information. The financial information and
statements of each entity (or their predecessors in interest as the case may be)
(either separately or on a Consolidated Basis) previously delivered to Lender
are true and correct, and accurately reflect the financial position of such
entity as of such dates, subject to year-end adjustments, in accordance with
GAAP. Since such dates, there has been no material adverse change in such
financial position.
SECTION 5.5 Litigation. There are no actions, suits, or proceedings
pending or, to the knowledge of the officers of BTI, BII or BRL, threatened,
against any such entity, or any of their properties before any court or
governmental department, commission, board, bureau, agency, or instrumentality
(domestic or foreign) that, if determined adversely to such entity, would have a
Material Adverse Effect or which relate to their entering into the Loan
Documents, or the consummation of the transactions contemplated thereby.
SECTION 5.6 Places of Business; Location of Collateral. Each entity
represents that the properties listed on Exhibit 5.6 attached hereto serve as
each entity's respective chief place of business, chief executive office, and
the place where each entity keeps its Books and Records.
SECTION 5.7 Contingent Liabilities. There are no suretyship agreements,
guarantees, or other Contingent Liabilities of BTI, BII or BRL that are required
to be included on a financial statement prepared in accordance with GAAP that
are not included on the financial statements described in Section 5.4 hereof or
otherwise disclosed in this Agreement.
SECTION 5.8 Taxes. Each BTI, BII and BRL has filed all tax returns and
reports required to be filed before the date hereof and have paid all taxes,
assessments, and charges imposed upon each entity or their property, or that
either is required to withhold and pay over, to the extent that they were
required to be paid before the date hereof, except for any of the foregoing
which BTI, BII or BRL may be contesting in good faith and for which reasonable
reserves have been established.
SECTION 5.9 Encumbrances. Each such entity's property and assets are
not subject to any mortgage, pledge, security, interest, lien or other
encumbrance except for Permitted Encumbrances.
SECTION 5.10 Consents. To the best of Borrower' knowledge, no
authorization, consent, approval, license, exemption by or filing or
registration with any court or governmental department, commission, board
(including the Board of Governors of the Federal Reserve System), bureau,
agency, or instrumentality, domestic or foreign, or other Person is or will be
necessary for the valid execution, delivery, or performance by Borrower of the
Loan Documents.
SECTION 5.11 ERISA. No such entity is obligated to contribute to any
Multiemployer Plans and no such entity has any Withdrawal Liability with respect
to any Multiemployer Plan of which any such entity or any member of their
Controlled Group had previously been a member. All such Defined Benefit Pension
Plans and Defined Contribution Plans, as of the date hereof, meet the minimum
funding standards of Section 302 of ERISA and Section 412 of the Code without
regard to any funding waiver and no Prohibited Transaction has occurred with
respect to any such plan.
(A) No Reportable Event has occurred with respect to any Defined
Benefit Pension Plan. No Defined Benefit Pension Plan sponsored by Borrower or
any member of their Controlled Group has any amount of "unfunded benefit
liabilities" (as defined in 4001(a)(18) of ERISA). No trust was established in
connection with any such Defined Benefit Pension Plan pursuant to ss.4049 of
ERISA (as in effect on December 17, 1987) and no liability (whether or not such
liability is being litigated) has been asserted against any entity or any
Controlled Group member in connection with any such Defined Benefit Pension Plan
by the PBGC or by a trustee appointed pursuant to ss.4042 (b) or (c) of ERISA.
No lien has attached and no person has threatened to attach a lien on any
property of any such entity or any Controlled Group member as a result of any
failure to comply with the Code or ERISA.
(B) Each such Defined Benefit Pension Plan and Defined Contribution
Plan, as most recently amended, including, without limitation, amendments to any
trust agreement, group annuity, or insurance contracts, or other governing
instrument, is the subject of a favorable determination letter by the Internal
Revenue Service with respect to its qualification under ss.401 (a) of the Code
or an application for such determination within the applicable remedial
amendment period has been filed and such plans comply, both in form and in
operation, with the requirements of the Code and ERISA.
(C) All Plans maintained by any such entity or any member of their
Controlled Group comply in all respects (i) with the requirements of the Code
and the regulations thereunder and ERISA, and (ii) in form with those
requirements of the Code and the regulations thereunder and ERISA which must be
met on the date hereof. There is not now, and has not been, any violation of the
Code or the regulations thereunder or ERISA with respect to the filing of
applicable reports, documents, or notices regarding the Plans of Borrower or any
member of their Controlled Group with the Secretary of Labor, the Secretary of
the Treasury, the PBGC or any other governmental entity or the furnishing of
such documents to the participants or beneficiaries of the Plans.
(D) Neither entity nor any member of their Controlled Group has any
unfunded liabilities of unfunded and uninsured "employee welfare benefit planet"
(as defined in ss.3(1) of ERISA). There is not now, and has not been, any
violation of the "continuation coverage requirements" of "group health plans" of
former ss.162 (k) of the Code and the regulations thereunder (as in effect for
tax years beginning on or before December 31, 1988) and of ss.4980B of the Code
and the regulations thereunder (as in effect for tax years beginning on or after
January 1, 1989) and Part 6 of Subtitle B of Title i of ERISA with respect to
any Employee Benefit Plan of any entity or of any member of their Controlled
Group to which such continuation coverage requirements apply.
SECTION 5.12 Subsidiaries and Affiliates; Fictitious Name. No Company
has any Subsidiaries or Affiliates other than as listed on Exhibit 5.12 attached
hereto and do not trade under any fictitious names, other than as listed on
Exhibit 5.12 attached hereto.
SECTION 5.13 Licenses, Permits, Etc. Each Company is in possession of
and operating in compliance with all franchises, grants, authorizations,
licenses, permits, easements, consents, certificates and orders required for the
conduct of their respective business as now conducted, and all of them are valid
and in full force and effect, except for those which if not obtained would not
have a Material Adverse Effect.
SECTION 5.14 Compliance with Laws. To the best of their knowledge,
Borrower are in material compliance with all laws, rules, regulations and orders
of all federal, state, and governmental agencies and courts that are applicable
to them, to the conduct of their business, or to the ownership and use of their
properties which if violated would have a Material Adverse Effect.
SECTION 5.15 Environmental Matters. To the extent necessary for the
conduct of its business, each entity is in possession of and in compliance with
all required permits relating to the discharge or release of liquids, gases or
solids into the air, water, and soil, except when the failure to have such
permits would not have a material adverse effect on such entity's business. Each
entity does not refine, process, generate, store, recycle, transport, dispose
of, or release into the environment any "hazardous substance" as that term is
defined in CERCLA, or any hazardous or toxic substances as those terms are used
in any state or local environmental statute or regulation, except in compliance
with all Environmental Laws. No entity has received notice from any governmental
agency that it is a potentially responsible party in any proceeding under an
environmental law. No entity has received any notice of violation, citation,
complaint, request for information, order, directive, compliance schedule,
notice of any claim, proceeding, or litigation from any person concerning any
entity's compliance with any Environmental Law, except as disclosed in
Borrower's financial statements.
SECTION 5.16 Intellectual Property. Each entity possesses all patents,
trademarks, copyrights, tradenames, trade secrets and other intellectual
property rights or licenses therefor, that are required to conduct its business
without conflict with the rights or claimed rights of others, except where the
failure to so own or possess such intellectual property rights would not have a
Material Adverse Effect.
SECTION 5.17 Regulation U, Etc. The Loan will not constitute a
violation of Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System. No part of the proceeds of the Loan will be used for any
purposes which violate or are inconsistent with the provisions of any of such
regulations.
SECTION 5.18 Labor Matters. There are no existing or, to each Company's
actual knowledge, threatened or contemplated, strikes, slowdowns, picketing or
work stoppages by any employees against any Company, any lockouts by any Company
of any of its employees or any labor trouble or other occurrence, event or
condition of a similar character which would have a Material Adverse Effect.
SECTION 5.19 Outstanding Judgments or Orders. To the best knowledge of
each Company, each Company has satisfied all judgments against each of them, to
the extent outstanding and not stayed pending appeal for more than thirty (30)
days, and, to the best of actual knowledge, no entity is in default with respect
to any judgment, writ, injunction, decree, rule or regulation of any court,
arbitrator or commission, board, bureau, agency or instrumentality, domestic or
foreign, pertaining to such entity, except for any judgment which will not have
a Material Adverse Effect.
SECTION 5.20 No Defaults on Other Agreements. To the best of each
Company's knowledge, no entity is in default in the performance, observance or
fulfillment of any of the material obligations, covenants or conditions
contained in any agreement or instrument to which such entity is a party, which
obligation, covenant or condition has not been waived in writing or cured or
which would not have a Material Adverse Effect.
SECTION 5.21 Full Disclosure. No representation or warranty by each
entity in this Agreement and no information in any statement, certificate,
schedule or other document furnished or to be furnished to Lender pursuant
hereto, or in connection with the transactions contemplated hereby, contains or
will contain any untrue statement of a material fact, or omits or will omit to
state a material fact necessary to make the statements contained herein or
therein not misleading.
SECTION 5.22 Debt and Credit Arrangements. Except for Debt owed by BTI
to Lender, as of the date hereof, neither BTI, BII nor BRL has any material debt
and no such entity is a party to any material credit agreement, indenture,
purchase agreement, guaranty, capital lease or other investments, agreements and
arrangements presently in effect providing for or relating to extensions of
credit in respect of which any such entity is in any manner directly or
contingently obligated, except for those disclosed on the financial statements
described in Section 5.4 above..
SECTION 5.23 No Defaults on Other Agreements. No Company is subject to
any charter or corporate restriction that has a Materially Adverse Affect. No
Company is a party to any indenture, loan or credit agreement, lease or other
agreement or instrument, nor is subject to any charter or corporate restriction
that has a Material Adverse Affect on any each Company's ability to carry out
its obligations under the Loan Documents. To the best of each Company's
knowledge, no Company is in default in any material respect in the performance,
observance or fulfillment of any of the material obligations, covenants or
conditions contained in any agreement or instrument material to its business to
which it is a party.
ARTICLE VI
COVENANTS
In addition to all other covenants set forth in this Agreement,
Borrower covenants that, so long as any of the Liabilities shall remain unpaid
and unless Lender shall otherwise consent in writing:
SECTION 6.1 Use of Proceeds. The Loan proceeds will be used for the
purposes set forth in Article II hereof.
SECTION 6.2 Financial Information. (A) Borrower will furnish to Lender,
as soon as delivered to any other creditor, and in any event within 90 days
after the close of each fiscal year of Borrower, audited consolidated financial
statements (income statements and balance sheet), and unaudited consolidating
financial statements. Such audited financial information will contain the report
of a certified by independent certified public accountants of recognized
standing selected by Borrower and reasonably acceptable to Lender. All such
financial information will be prepared according to GAAP.
(B) Borrower will furnish to Lender, as soon as delivered to any other
creditor and in any event within forty-five (45) days after the end of each
fiscal quarter, unaudited, unconsolidated and consolidating financial statements
for the period then ended. All of the foregoing financial information shall be
in such detail as Lender may reasonably require, and shall be prepared by and
accompanied by the certification referred to in (D) below.
(C) Borrower will furnish to Lender, within thirty (30) days of the end
of each fiscal quarter, an accounts receivable agings summary report of BII and
BRL in form and substance satisfactory to Lender.
(D) Each financial statement required hereunder will be accompanied by
(a) a certification in the form of Exhibit 6.2 attached hereto and made a part
hereof, and (b) a certificate of the chief executive or chief financial officer
of Borrower stating that such officer has reviewed the Borrower's operations for
that period and that no Event of Default or Default has occurred and is
continuing, or if any such Event of Default or Default has occurred and is
continuing, a written statement setting forth the details of such Event of
Default or Default, stating whether or not the same is continuing and, if so,
the action that Borrower propose to take with respect thereto. Such certificate
or statement will also include a reasonably detailed calculation of the
financial ratios set forth in Section 6.5 and Section 6.6 below, for the purpose
of establishing whether Borrower was in compliance with the requirements of such
Sections as of the end of the period covered by the financial statements. In
addition, the financial statements shall be accompanied by a letter from the
accountant acknowledging that the Lender will rely upon the financial statements
and consenting to the Lender's reliance thereon.
SECTION 6.3 Insurance. Borrower will at all times carry insurance, in
form and amount customary for Borrower's business, and underwritten by
financially sound and reputable insurers reasonably satisfactory to Lender.
SECTION 6.4 Encumbrances. Borrower, BII and BRL will not create, incur,
assume, or suffer to exist any mortgage, pledge, lien, or other encumbrance of
any kind upon, or any security interest in, any of their respective property or
assets, whether now owned or hereafter acquired, except for the Permitted
Encumbrances. Borrower, BII and BRL will not agree with any Person to restrict
their respective abilities to grant mortgages, pledges, liens or other
encumbrances upon, or security interests in, any of their property or assets.
SECTION 6.5 Borrower and BII Financial Covenants. Borrower and BII
shall, on a consolidated basis, maintain the following financial covenants,
which shall be tested as of each March 31, June 30, September 30 and December
31.
SECTION 6.5.1 Tangible Net Worth. The consolidated Tangible Net Worth
shall exceed $10,000,000, plus 50.0% of the Net Income for the current year,
plus the net proceeds of any stock offering.
SECTION 6.5.2 Total Liabilities to Tangible Net Worth. The ratio of
Total Liabilities to Tangible Net Worth shall not equal or exceed 0.30.
SECTION 6.6 Borrower and Subsidiary Financial Covenants. Borrower,
together with all of Borrower's subsidiaries, shall, on a consolidated basis,
maintain the following financial covenants, which shall be tested as of each
March 31, June 30, September 30 and December 31.
SECTION 6.6.1 Current Ratio. The Current Ratio shall not be less than
2.5:1.0.
SECTION 6.6.2 Tangible Net Worth. The consolidated Tangible Net Worth
shall equal or exceed the Tangible Net Worth as of the end of the prior calendar
year, plus 50.0% of the Net Income for the current year, plus the net proceeds
of any stock offering.
SECTION 6.6.3 Net Income. The consolidated Net Income shall exceed
$2,000,000 on a rolling four quarter basis, without a loss in any two (2)
consecutive calendar year quarters.
SECTION 6.6.4 Total Liabilities to Tangible Net Worth. The ratio of
Total Liabilities to Tangible Net Worth shall not equal or exceed 0.50.
SECTION 6.6.5 Capital Expenditures/Acquisitions. The aggregate of
capital expenditures, loans, investments or advances to entities which are not
or do not become a Guarantor (specifically to include BRL), or funds used for
acquisitions shall not exceed $5,000,000 in any aggregate four (4) consecutive
calendar year quarters, without Lender's prior written consent, except that the
limit shall increase to $10,000,000 upon the successful completion of an equity
offering where the net proceeds to the Borrower would exceed $20,000,000.
SECTION 6.7 Taxes. Borrower shall pay when due all taxes, assessments,
and charges imposed upon Borrower or Borrower' properties or that Borrower' are
required to withhold or pay over. Notwithstanding the foregoing, Borrower shall
be entitled to withhold such payment for any such tax, assessment or charge
while Borrower diligently contest such tax, assessment, or charge in good faith
and by appropriate proceedings provided that Borrower maintain adequate reserves
therefor and provided that the effect of such proceedings stays the right of the
taxing authority to execute upon the Borrower' assets for such non-payment.
SECTION 6.8 Guarantees, Etc. Borrower shall not, without Lender's prior
written consent, become liable on the obligation of another Person, except for a
Subsidiary or otherwise incur any consensual Contingent Liability, except with
respect to a Subsidiary, except by endorsement of negotiable instruments for
deposit or collection in the usual course of business.
SECTION 6.9 Loan and Investments. Borrower shall not make any Loan or
investments (including without limitation Loan to officers or Loan to or
investments in Affiliates or Subsidiaries) except for:
(A) investments in:
(1) assets to be used in the ordinary course of business,
(2) obligations of Lender,
(3) obligations of the U.S. government and its agencies,
(4) money market instruments, repurchase agreements,
commercial paper, certificates of deposit, bankers'
acceptances, Eurodollar certificates of deposit and
approved money market funds,
(5) corporate bonds, including Eurodollar issues of
U.S. corporations and U.S. dollar denominated issues
of foreign corporations,
(6) floating rate securities without interest rate caps,
(7) asset-backed securities,
(8) foreign government and provincial issues, and issues
of international agencies that are U. S. dollar
denominated,
(9) Joint ventures where the entity becomes a Guarantor,
and
(10) any now existing or hereafter created Guarantor.
Individual holdings of commercial paper must be rated A-1, P-1, or better by
either Standard and Poor's Corporation ("S&P") or ▇▇▇▇▇'▇ Investor Services
("Moody's"), at the time of purchase. Securities of Issuers with a long-term
credit rating must be rated at least [AAA/Asa] [AA-/Aa3] [A-/A3] [BBB-/Baa3] by
S & P's or Moody's, respectively.
(B) Loan to:
(1) any Person, not a Borrower or Affiliate of a
Borrower, not to exceed $100,000.00 in the aggregate,
(2) any Affiliate of a Borrower not to exceed $500,000.00
in the aggregate.
SECTION 6.10 Compliance with Laws. Borrower shall comply with all laws,
rules, and regulations applicable to it in the operation of its business if the
failure to so comply could have a Material Adverse Effect.
SECTION 6.11 Environmental Matters. (A) To the extent necessary for the
conduct of their business, Borrower and BII will obtain and comply with all
required permits, licenses, registrations and approvals relating to the
discharge or release of liquids, gases or solids into the environment. To the
extent that such are applicable to the conduct of their business, Borrower and
BII will comply with all environmental laws relating to the generation,
treatment, storage, transportation, disposal, release or cleanup of any
"hazardous substance".
(B) Borrower or BII will immediately notify Lender if Borrower or BII
receives (i) any notice from any governmental agency that Borrower or BII is a
potentially responsible party in any proceeding under environmental law, (ii)
any notice of any claim, proceeding, litigation, order, directive, citation, or
request for information concerning environmental conditions, or notice of any
alleged violation of any environmental law, or (iii) any information concerning
any potentially adverse environmental condition, including, but not limited to,
any spilling, leaking, discharge, release, or threat of release of any hazardous
substance.
(C) Borrower and BII shall comply with any notice or directive from any
governmental authority, whether state, federal, or local, regarding the removal
or discharge of any hazardous substance on any of its properties within such
period as may be required therein unless the same is being contested by Borrower
or BII in good faith. Borrower or BII shall, upon request, provide a bond or
title insurance endorsement reasonably satisfactory to Lender insuring Lender's
continued lien on the Collateral affected by such notice or directive.
(D) Borrower, BII and BRL hereby indemnify and agree to defend and hold
harmless Lender, its parent corporation, subsidiaries, successors, assigns,
officers, directors, shareholders, employees, agents and counsel from and
against any and all claims, actions, causes of action, liabilities, penalties,
fines, damages, judgments, losses, suits, expenses, legal or administrative
proceedings, interest, costs and expenses (including court costs and reasonable
attorneys', consultants' and experts' fees) arising out of or in any way
relating to (i) the presence of any substance which is or becomes regulated
under any Environmental Law whether now or hereafter enacted, on, beneath or
arising from any property used or occupied by Borrower, BII or BRL; (ii) the
failure of Borrower, BII or BRL to comply with any Environmental Law; (iii)
Borrower's, BII's or BRL's breach of any of the representations and warranties
or covenants contained herein; (iv) any notice of violation, citation,
complaint, request for information, order, directive, compliance schedule,
notice of claim, consent decree, action, litigation or proceeding brought or
instituted by any governmental authority or any third party under or in
connection with any Environmental Law or based on the presence of any hazardous
substances; and (iv) the imposition or recording of a lien against any property
of or occupied by Borrower, BII or BRL pursuant to any Environmental Law, unless
due solely to the gross negligence or willful misconduct of Lender. IT IS
INTENDED THAT THE INDEMNITY PROVIDED IN THIS SECTION SHALL SURVIVE THE REPAYMENT
OF THE LIABILITIES.
SECTION 6.12 Maintenance of Property. Borrower, BII and BRL will
maintain all of its property (subject to ordinary wear and tear) materially
useful to it business in good condition and repair.
SECTION 6.13 Limitations on Borrowing. Except for borrowings from
Lender hereunder, Borrower will not incur any indebtedness for borrowed money,
or purchase any assets or property on an installment or other deferred payment
basis. BRL will not incur indebtedness in excess of $500,000 without Lender's
prior written consent.
SECTION 6.14 Reports; Change in Locations. (A) Borrower will furnish
the following to Lender:
(1) as soon as possible, and in any event within five (5) days after
Borrower becomes aware of the occurrence of any Default or Event of Default, a
written statement by the chief executive or chief financial officer of Borrower
setting forth the details of such Default or Event of Default, stating whether
or not the same is continuing and, if so, the action proposed to be taken with
respect thereto;
(2) immediately after receiving knowledge thereof, notice in writing of
all actions, suits, or proceedings before any court or governmental department,
commission, board, bureau, agency, or instrumentality, domestic or foreign,
affecting Borrower where the potential liability is reasonably determined to be
in excess of $150,000, individually, or $150,000 in the aggregate and such
potential liability is uninsured;
(3) as soon as possible and in any event within five (5) business days
after Borrower becomes aware of the occurrence of a material adverse change in
the business, properties, operations, or condition (financial or otherwise) of
Borrower, a written statement by the chief executive or chief financial officer
of Borrower setting forth details of such material adverse change and the action
proposed to be taken with respect thereto;
(4) immediately after receiving knowledge thereof, notice in writing of
any strike, walkout, boycott or other labor dispute involving the Borrower,
where such labor dispute would have a Material Adverse Effect; and
(5) such other information respecting the Borrower's properties,
operations, and condition (financial or otherwise) as Lender may at any time and
from time to time reasonably request.
SECTION 6.15 ERISA. For purposes of this Section, the term Borrower
includes any member of Borrower's Controlled Group (A) Borrower will comply in
all material respects with the provisions of ERISA and the Code with respect to
any Defined Benefit Pension Plan and Defined Contribution Plan including the
timely filing of required annual reports and the payment of PBGC premiums.
(B) Borrower will furnish to Lender, upon Lender's request, promptly
after the filing thereof with the United States Secretary of Labor and the PBGC,
copies of each annual or other report with respect to each Defined Benefit
Pension Plan and Defined Contribution Plan maintained by Borrower.
(C) Borrower will cause to be made all contributions required to avoid
any accumulated funding deficiency (as defined in ss.412(a) of the Code and the
regulations thereunder and ss.302 (a) of ERISA), unless waived, with respect to
any pension plan (as defined in ss.3(2) of ERISA), other than a Multiemployer
Plan, which is subject to Part 3 of the Subtitle B of Title I of ERISA or
Section 412 of the Code and the regulations thereunder and that is maintained by
Borrower or any member of their Controlled Group.
(D) As soon as possible (and in any event within five (5) days) after
Borrower has reason to know (i) that any Reportable Event has occurred with
respect to any Defined Benefit Pension Plan maintained by Borrower, (ii) that
any Defined Benefit Pension Plan maintained by Borrower is to be terminated in a
distress termination (within the meaning of 4041(c) of ERISA), (iii) that the
PBGC has instituted or will institute proceedings under Title IV of ERISA to
terminate any Defined Benefit Pension Plan maintained by Borrower, (iv) that
Borrower has incurred Withdrawal Liability from a Multiemployer Plan maintained
by Borrower, or (v) that any Multiemployer Plan to which Borrower has made
contributions is in Reorganization, Borrower will furnish a statement to Lender
setting forth the details as to such Reportable Event, distress termination,
termination proceedings, Withdrawal Liability, or Reorganization, and the action
that Borrower proposes to take with respect thereto, together with a copy of any
notice of such Reportable Event or distress termination given to the PBGC, or a
copy of any notice of termination proceedings, Withdrawal Liability or
Reorganization received by Borrower.
(E) Borrower will furnish to Lender as soon as possible (and in any
event within five (5) days) after receipt thereof a copy of any notice that
Borrower receives from the PBGC or the Internal Revenue Service or from the
sponsor of any Multiemployer Plan that sets forth or proposes any action to be
taken or determination made by the PBGC or the Internal Revenue Service with
respect to any Defined Benefit Pension Plan, Defined Contribution Plan or
Multiemployer Plan.
(F) Borrower will promptly notify Lender of any taxes, penalties,
interest charges and other financial obligation that have been assessed or
imposed or that Borrower has reason to believe may be assessed or imposed
against Borrower by the Internal Revenue Service, the PBGC or any other
governmental entity with respect to any Plan or Multiemployer Plan.
(G) Borrower will promptly notify Lender of the adoption of any Defined
Benefit Pension Plan or Defined Contribution Plan or any obligation to
contribute to any Multiemployer Plan by Borrower.
(H) Borrower will not contribute to any Multiemployer Plan. Borrower
will not permit (i) with respect to any Employee Benefit Plan, any Prohibited
Transaction or Prohibited Transactions under ERISA or the Code resulting in
liability of Borrower in excess of $25,000 in the aggregate or (ii) with respect
to any Defined Benefit Pension Plan, any Reportable Event under ERISA, if upon
termination of the Plan or Plans with respect to which one or more such
Reportable Events has occurred there is or would be any liability of Borrower to
the PBGC in excess of $25,000 in the aggregate. Borrower will not voluntarily
take or fail to take any action that would result in any Withdrawal Liability
becoming due.
(I) Borrower will not fail to make required minimum contributions with
respect to a Defined Benefit Pension Plan, resulting in a lien (as provided in
ss.302 (f) of ERISA) against Borrower.
(J) Borrower will not permit the adoption of a plan amendment that
results in significant underfunding (as defined in ss.307 of ERISA) of a Defined
Benefit Pension Plan that requires Borrower to provide collateral or security.
(K) Borrower will not permit the unfunded liabilities of unfunded and
uninsured employee welfare benefit plans" (as defined in ss.3 (1) of ERISA) of
Borrower to exceed, in the aggregate, $10,000.
(L) Borrower will not acquire or permit the acquisition by any of their
Controlled Group members, of any trade or business that has directly or
indirectly incurred an unfunded benefit liability (as defined in ss.4001 of
ERISA) under any Defined Benefit Pension Plan prior to such acquisition.
Borrower will not acquire or permit the acquisition, by Borrower of any trade or
business that has directly or indirectly incurred an unfunded benefit liability
under any Defined Benefit Pension Plan.
SECTION 6.16 Mergers, Etc. Borrower, BII or BRL will not, directly or
indirectly and without the prior written consent of Lender: (A) merge or
consolidate with any other Person, (B) sell or lease or otherwise transfer all
or any substantial part of any of their respective assets to any Person, (C)
other than as specifically provided for in Section 6.6.5 hereof, acquire whether
through purchase or exchange of capital stock or assets or otherwise, all or any
substantial part of the assets of any other Person, or any capital stock of or
other equity interest in any other Person, unless otherwise approved by Lender
in writing, (D) consummate any recapitalization or reorganization, or (E) create
or acquire any Subsidiary. Any acquisition by exchange of Borrower's capital
stock as specified herein may not result in the violation of the financial
covenants or any other representation or covenant of this Agreement. Upon the
acquisition or creation of a Subsidiary, such Subsidiary shall guarantee the
Borrower's obligations hereunder and the Borrower shall cause the Subsidiary to
execute this Agreement, and such other documents as the Lender may reasonably
require, within thirty (30) days of the acquisition or creation of the
Subsidiary.
SECTION 6.17 Change of Business. Borrower, BII and BRL will not make
any material change in the nature of their respective business as conducted on
the date hereof.
SECTION 6.18 Disposal of Assets. Borrower, BII, and BRL will not
dispose of any assets except in the ordinary course of business.
SECTION 6.19 Intellectual Property. Borrower, BII and BRL will maintain
all of their respective patents, trademarks, copyrights, trade secrets and other
intellectual property rights and licenses therefor, which are material to their
business, if any, in full force and effect until their respective expiration
dates, if any.
SECTION 6.20 Dividends and Distributions. Borrower, BII and BRL will
not declare or pay any dividend, or declare or make any other payment or
distribution on, or to acquire, any of its capital stock, or make any other
payment to shareholders if there then exists a Default or Event of Default or
such distribution or dividend would cause a Default or Event of Default
hereunder.
SECTION 6.21 Indemnification. Borrower, BII and BRL hereby indemnify
and agree to protect, defend, and hold harmless Lender and its directors,
officers, employees, agents, attorneys and shareholders from and against any and
all losses, damages, expenses or liabilities of any kind or nature and from any
suits, claims, or demands, including all reasonable counsel fees incurred in
investigating, evaluating, or defending such claims, suffered by any of them and
caused by, relating to, arising out of, resulting from, or in any way connected
with this Agreement, the Note, any other Loan Document and any transaction
contemplated herein or therein including, but not limited to, claims based upon
any act or omission by Lender in connection with this Agreement, the Note or any
Loan Document and any transaction contemplated herein or therein to the extent
not caused by the gross negligence, bad faith or willful misconduct of Lender or
its directors, officers, employees, agents or attorneys. If Borrower, BII or BRL
shall have knowledge of any claim or liability hereby indemnified against,
Borrower, BII and BRL shall promptly give written notice to Lender. THIS
COVENANT SHALL SURVIVE THE PAYMENT OF THE INDEBTEDNESS CREATED BY THIS
AGREEMENT, THE NOTES OR THE LOAN DOCUMENTS.
SECTION 6.22 Licenses; Permits. Borrower, BII and BRL will maintain the
validity, force and effect of, and operate in compliance with, all franchises,
grants, authorizations, licenses, permits, easements, consents, certificates and
orders material to the conduct of their respective business.
SECTION 6.23 RICO. Borrower, BII and BRL shall not engage in any
conduct or fail to take any action which will, or would, under the facts and
circumstances relative thereto, violate the Racketeer Influenced and Corrupt
Organization Act as amended from time to time, 18 U.S.C. ss.ss.1961-68.
ARTICLE VII
DEFAULT
SECTION 7.1 Events of Default. Each of the following shall, at the
option of the Lender, be an event of default (an "Event of Default"):
(A) if Borrower shall fail to pay when due any interest, principal,
fees or any other Liabilities;
(B) if a non-monetary payment based default shall occur under any Loan
Document and such default continues after thirty (30) days written notice to
Borrower, or if Borrower, BII or BRL fail to perform their covenants under any
Loan Document (including without limitation this Agreement) when and as due and
such failure continues for more than thirty (30) days after written notice
thereof to Borrower, provided, however, if such default cannot reasonably be
cured within the thirty (30) day period, it shall not be a default hereunder so
long as the Borrower commences the cure within the thirty (30) day period and so
long as Borrower diligently pursues the cure to completion;
(C) if any representation or warranty made by Borrower, BII or BRL in
any Loan Document or in any certificate, agreement, instrument, statement, or
report contemplated by or made or delivered pursuant to or in connection with
any thereof, or if any information furnished to Lender pertaining to the Loan
shall prove to have been incorrect in any materially adverse respect as and when
made;
(D) if Borrower, BII or BRL shall fail to pay any Funded Debt or
Liabilities in excess of $250,000 owing by any of them, or any interest or
premium thereon, when due, whether owed to Lender or any other Person and
whether such Funded Debt or Liabilities shall become due by scheduled maturity,
by required prepayment, by acceleration, by demand, or otherwise, or shall fail
to perform any term, covenant, or agreement on its part to be performed under
any agreement or instrument evidencing or securing or relating to any such
Funded Debt or Liabilities in excess of $250,000 when required to be performed,
if the effect of such failure is to accelerate, or to permit the holder or
holders of such Funded Debt or Liabilities to accelerate, the maturity of such
Funded Debt or Liabilities, whether or not such failure to perform shall be
waived by the holder or holders of such Funded Debt or Liabilities, unless such
waiver has the effect of terminating the right of such holder or holders to
accelerate the maturity of such Funded Debt as a result of such failure;
(E) if Borrower, BII or BRL shall be adjudicated bankrupt or insolvent,
or admit in writing its inability to pay its debts as they mature; or if any
such entity shall make an assignment for the benefit of its creditors; or if any
such entity shall apply for or consent to the appointment of any receiver,
trustee, or similar officer for it or for all or any substantial part of its
property; or any such receiver, trustee, or similar officer shall be appointed
without the application or consent of any such entity and shall continue
undischarged for a period of 60 days; or if any such entity shall institute (by
petition, application, answer, consent, or otherwise) any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, dissolution,
liquidation, or similar proceeding relating to them under the laws of any
jurisdiction; or if such proceeding shall be instituted (by petition,
application, or otherwise) against any such entity and an order for relief shall
be entered in such proceeding or such proceeding shall remain undismissed for a
period of 60 days; or if any judgment, writ, warrant of attachment or execution
or similar process shall be issued or levied against property of any such entity
that represents a substantial portion of the property of such entity and such
judgment, writ, or similar process shall not be released, vacated, or fully
bonded within 60 days after its issue or levy;
(F) if (1) any Reportable Event, or any failure of compliance required
by Section 6.15 hereof, that Lender reasonably determines in good faith creates
a reasonable likelihood of the termination of any Defined Benefit Pension Plan
of Borrower or of the appointment by the appropriate United States District
Court of a trustee to administer any such Plan of Borrower, shall have occurred
and be continuing 60 days, or (2) any such plan shall be terminated, or (3) the
plan administrator of any such Plan shall file with the PBGC a notice of
intention to terminate such Defined Benefit Pension Plan, or (4) the PBGC shall
institute proceedings to terminate any such Defined Benefit Pension Plan or to
appoint a trustee to administer any such Defined Benefit Pension Plan and such
proceedings shall remain undismissed or unstayed for 30 days and if, in any of
the cases described in the foregoing clauses (1) to (4), Lender further
determines that the amount of the unfunded guaranteed benefits (within the
meaning of Title IV of ERISA) resulting upon termination of such Defined Benefit
Pension Plan would have a material adverse effect on the business, properties,
operation, or condition (financial or otherwise) of Borrower, BII or BRL if a
lien against the assets of Borrower, BII or BRL were to result under ERISA; or
SECTION 7.2 Remedies. If any Event of Default other than those
described in Section 7.1(E) shall occur and be continuing, then upon notice from
Lender to Borrower, or if any Event of Default described in Section 7.1(E) shall
occur then automatically, (A) the Revolving Credit and the right of Borrower to
request Advances thereunder shall terminate; (B) the Liabilities shall be due
and payable immediately without presentment, demand, protest or further action
of any kind; (C) Lender may exercise its rights under any Loan Document
(including this Agreement); (D) Lender may set off any Borrower's, BII's or
BRL's funds or property in Lender's possession against the Liabilities in such
order as Lender shall elect; and (E) Lender may exercise any other rights and
remedies available to Lender whether available at law, in equity, or otherwise.
ARTICLE VIII
ADDITIONAL PROVISIONS
SECTION 8.1 No Waiver; Cumulative Remedies. Lender's failure or delay
in exercising any right, power, or remedy hereunder shall not operate as a
waiver thereof; nor shall any single or partial exercise of any such right,
power, or remedy preclude any other or further exercise thereof or the exercise
of any other right, power, or remedy hereunder. No waiver of any provision
hereof shall be effective unless the same shall be in writing and signed by
Lender. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 8.2 Notices. All notices, requests, demands, and other
communications required or permitted hereunder shall be in writing, and shall be
given to such party at its address below or at such other address as shall be
designated by such party in a notice to each other party complying with the
terms of this Section. All notices, requests, demands, and other communications
provided for hereunder shall be effective (A) if given by mail, three (3)
business days after deposit in the mails, with first class postage prepaid,
addressed as aforesaid, or (B) if given by any other means, (including
telecopy), when delivered or received at the aforesaid addresses:
If to Lender:
Fleet Bank, N.A.
▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Heal, Vice President
If to Borrower, BII or BRL:
▇▇▇▇▇▇▇▇▇ Technologies Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
SECTION 8.3 Set-off. Upon an Event of Default, Lender shall have a
right of set-off against, a lien upon, and a security interest in all property
of Borrower, BII or BRL now or at any time in the possession of Lender in any
capacity whatever, including, but not limited to such entities' interest in any
deposit account, as security for the Liabilities, including without limitation,
the obligations of Borrower under the Loan Documents and to reimburse Lender for
any returned checks.
SECTION 8.4 Costs and Expenses. Borrower, BII and BRL agree to pay on
demand (A) all reasonable out-of-pocket costs and expenses of Lender in
connection with the preparation, execution and delivery of the Loan Documents
and in connection with any request for an amendment, modification, or waiver of
any of the provisions of any thereof (including the reasonable fees and
out-of-pocket expenses of counsel with respect thereto); (B) all filing,
recording, and similar fees and charges; and (C) all reasonable costs and
expenses, if any, of Lender in connection with the enforcement of any Loan
Document (including the reasonable fees and out-of-pocket expenses of legal
counsel with respect thereto) after the occurrence of a Default or an Event of
Default.
SECTION 8.5 Governing Law. This Agreement and the other Loan Documents
shall be governed in all respects by the law of the State of New Jersey, the
jurisdiction in which the Loan Documents have been executed and delivered, and
for all purposes shall be construed in accordance with such law.
SECTION 8.6 Survival of Agreements and Representations; JURY WAIVER;
Consent to Jurisdiction. All agreements, representations and warranties made
herein shall survive the delivery of this Agreement and the Notes. Any and all
judicial proceedings brought by Lender against Borrower, BII or BRL or any of
them with respect to this Agreement may be brought in: (A) any court of
competent jurisdiction in the State of New Jersey; and (B) any Federal district
court having subject matter jurisdiction and being located in the State of New
Jersey. Borrower, BII and BRL hereby accept, for themselves and their
properties, the non-exclusive jurisdiction of the aforesaid courts and agree to
be bound by any judgments rendered by such courts in connection with this
Agreement. Neither Borrower, BII or BRL will move to transfer any such
proceeding to any different court. Any such process shall be served in
accordance with New Jersey law. Nothing herein limits the right of Lender to
bring proceedings against Borrower in the courts of any other jurisdiction.
AFTER CONSULTATION WITH COUNSEL, AND WITH KNOWLEDGE OF THE
CONSEQUENCES, BORROWER AND LENDER HEREBY WAIVE ALL RIGHTS TO DEMAND A JURY TRIAL
AND AGREE THAT ALL SUITS WILL BE HEARD BY JUDGE ONLY.
SECTION 8.7 Binding Effect; Assignment. The Loan Documents shall be
binding upon and inure to the benefit of Borrower, BII, BRL, Lender and their
respective successors and assigns, except that Borrower, BII nor BRL shall have
the right to assign or delegate any respective rights or obligations under any
of the Loan Documents.
SECTION 8.8 Captions. Article, Section and subsection headings used in
this Agreement are for convenience only and shall not affect the construction of
this Agreement.
SECTION 8.9 Amendments. This Agreement's provisions may be waived,
modified or amended only by written agreement or agreements entered into by
Borrower and Lender. No such waiver, modification or amendment shall extend to
or affect any obligation not expressly waived, modified or amended, or impair
any right of Lender related to such obligation.
SECTION 8.10 Usury. Nothing herein contained or in the Notes, or any
other Loan Document, nor any transaction related thereto shall be construed or
shall operate either presently or prospectively to require Borrower (i) to pay
interest at an unlawful rate and shall require payment of interest only to the
extent of such lawful rate, or (ii) to make any payment or do any act contrary
to law, but if any provision herein or therein contained shall otherwise so
operate to invalidate this Agreement, the Notes, or any other Loan Document, in
whole or in part, then such provision only shall stricken and the remainder of
this Agreement, the Note, and the other Loan Documents shall remain operative
and in full force and effect. Any interest paid in excess of the lawful rate
shall be refunded to Borrower. Such refund shall be made by application of the
excessive amount of interest paid against any sums outstanding under this
Agreement and shall be applied in such order as Lender may determine. If the
excessive amount of interest paid exceeds the sums outstanding hereunder, the
excess portion shall be refunded in cash by Lender. Any such crediting or refund
shall not cure or waive any default by Borrower hereunder or under the Note or
any other Loan Document. Borrower agrees, however, that in determining whether
or not any interest payable exceeds the highest rate permitted by law, any
non-principal payment (except payments specifically stated in this Agreement to
be "interest"), including without limitation prepayment premiums, shall be
deemed, to the extent permitted by law, to be an expense, fee, premium or
penalty rather than interest.
SECTION 8.11 Entire Agreement. This Agreement, the Exhibits attached
hereto and the Loan Documents constitute the entire understanding among the
parties with respect to the subject matter hereof, and supersedes any and all
contemporaneous and prior agreements between the parties hereto with respect to
the subject matter hereof.
SECTION 8.12 Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be an original and all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have executed this Agreement, as of the date first written above.
▇▇▇▇▇▇▇▇▇ TECHNOLOGIES INCORPORATED ▇▇▇▇▇▇▇▇▇ INSTRUMENTS, INC.
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------- By: ----------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President Title: President
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Attest: ------------------------ Attest:-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President Finance Vice President Finance
▇▇▇▇▇▇▇▇▇ RESEARCH LIMITED
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director/Authorized Signatory
FLEET BANK, N.A.
By: /s/▇▇▇▇▇ ▇. Heal
---------------------
Name: ▇▇▇▇▇ ▇. Heal
Title: Vice President
EXHIBIT 2. 3
REVOLVING CREDIT NOTE
$5,000,000.00 Princeton, New Jersey
March 13, 1998
The undersigned, ▇▇▇▇▇▇▇▇▇ TECHNOLOGIES INCORPORATED (the "Maker")
hereby promises to pay to the order of FLEET BANK, N.A. (the "Payee"} as and
when due as set forth in the Loan Agreement (as hereinafter defined) the
principal sum of Five Million Dollars ($5,000,000.00} or, if less, the aggregate
principal amount (as shown by Payee's records, which shall constitute prima
facie evidence thereof) of all advances (collectively, the "Advances") made by
Payee under the Revolving Credit provided for in and made pursuant to Section
2.1 of the Revolving Credit Loan Agreement, dated the date hereof, between Maker
and Payee (the "Loan Agreement", which Advances shall be due and payable in full
on or before the Revolving Credit Expiration Date, as defined in the Loan
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meanings given such terms in the Loan Agreement.
The undersigned further promises to pay to the order of Payee interest
on the unpaid principal amounts of the Advances from the respective dates on
which the Advances are made until such principal amounts have been repaid in
full, payable at the times and rates provided in the Loan Agreement.
Maker hereby waives presentment, demand for payment, notice of dishonor
or acceleration, protest and notice of protest, and any and all other notices or
demands in connection with the delivery, acceptance, performance, default or
enforcement of this Note except any notice expressly required in the Loan
Agreement. This is the Revolving Credit Note mentioned in, and is entitled to
the benefits of, the Loan Agreement.
IN WITNESS WHEREOF, Maker hereby executes this Note on the day and year
first above written.
▇▇▇▇▇▇▇▇▇ TECHNOLOGIES INCORPORATED
By:--------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
Attest:----------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President Finance
EXHIBIT 5.6
BUSINESS LOCATIONS
▇▇▇▇▇▇▇▇▇ Technologies Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Instruments, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Research Limited
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
EXHIBIT 5.12
LIST OF SUBSIDIARIES AND AFFILIATES
▇▇▇▇▇▇▇▇▇ Technologies Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Instruments. Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ Research Limited
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
EXHIBIT 6.2
FORM OF FINANCIAL STATEMENT ATTESTATION
To: FLEET BANK, N.A.
I (we) hereby submit to Fleet Bank, N.A. ("Lender,') my (our) Audited/House
Prepared Financial Statement dated ------- covering the period ------------of
for the purpose of either applying for credit or for supporting continuing
credit accommodations.
I (we) am (are) submitting this statement to Lender as being true, accurate and
complete as of the date it has been submitted. I understand that knowingly
providing Lender with false information for the purpose of inducing Lender to
extend or continue accommodations is a federal crime.
I (we), intending to be legally bound, hereby affirm and attest that this
financial statement, consisting of ------- pages (front and reverse counted as 1
) is true and correct to the best of my (our) knowledge.
I certify that no Event of Default has occurred under the Revolving Credit
Agreement as of the date hereof.
As of the date of this Certification:
1. Borrower and BII Financial Covenants.
(a) The Tangible Net Worth Ratio is -----------; and
(b) The Total Liabilities to Tangible Net Worth Ratio is -------------
1. Borrower and Subsidiary Financial Covenants.
(a) The Current Ratio is ------------;
(b) The Tangible Net Worth Ratio is --------;
(c) The Net income is --------; and
(d) The Total Liabilities to Tangible Net Worth Ratio is -----------.
---------------------------
Borrower's Names
---------------------------
Officer's Signature
(Title, if appropriate)
---------------------------
Date Signed
Note: This form is to be affixed to the financial statements, as submitted.