Exhibit (b)(3)
Mellon Bank
Revolving Line of Credit Agreement
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XXXXXXX CORPORATION
("Borrower") has requested Mellon Bank, N.A. ("Bank")
to make loans (the "Loans") to Borrower from time to time during
the period set forth below (the "Commitment Period") in an
aggregate principal amount outstanding at any one time not to
exceed Bank's commitment set forth below (the "Commitment
Amount") and, subject to the terms and conditions set forth
herein and in the Note and the other Credit Documents
(hereinafter defined) and, relying upon the representations and
warranties herein and therein set forth, Bank is willing to make
such Loans.
Commitment Period: From the date hereof to but not including
August 31, 1999.
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Commitment Amount: $24,000,000.00
Within the limits of time and amount set forth above and subject
to the terms and conditions set forth herein and in the Note and
the other Credit Documents, Borrower may borrow, repay and
reborrow hereunder. Borrower may at any time or from time to time
reduce the Commitment Amount to an amount not less than the sum
of the unpaid principal amount of the Loans then outstanding plus
the principal amount of all Loans not yet made as to which notice
has been given by Borrower under Section 2 hereof, by providing
not less than five days' prior written notice (which notice shall
be irrevocable) to such effect to Bank. If Bank allows Loans
above the Commitment Amount, all the terms and conditions set
forth herein and in the Note and the other Credit Documents will
apply to such Loans.
The obligation of Borrower to repay the Loans, to pay interest
thereon and to pay fees, if any, with respect to the Commitment
Amount shall be evidenced by one or more promissory notes, note
and security agreements, letter of credit applications, or other
instruments or documents (collectively, the "Note"), which
together with this Agreement, including any Supplement hereto,
and any security agreements, instruments and other documents
executed by Borrower in connection herewith are sometimes
referred to herein as the "Credit Documents".
In consideration of the foregoing and intending to be legally
bound, Borrower agrees with Bank as follows:
1. REPRESENTATIONS AND WARRANTIES. In addition to the
representations and warranties contained in the Note and any
other Credit Documents, Borrower hereby makes the following
representations and warranties which shall be true and correct on
the date hereof and shall continue to be true and correct at the
time of the creation of any of the Loans and until the Loans
shall have been paid in full, or if there are no Loans
outstanding so long as the Commitment Period has not expired:
(a) ORGANIZATION-CORPORATION AND PARTNERSHIP. If Borrower is a
corporation or a partnership, Borrower is duly organized, validly
existing, and in good standing under the laws of the jurisdiction
in which Borrower is incorporated or was formed; Borrower has the
power and authority to own its properties and assets, to carry on
its businesses as now being conducted and is qualified to do
business in every jurisdiction in which it is required to qualify
to do business.
(b) VALIDITY AND BINDING NATURE. Borrower has the power to
execute, deliver, and perform this Agreement, the Note and all
other Credit Documents, and when executed and delivered, this
Agreement, the Note and all other Credit Documents will be valid
and binding obligations of Borrower, enforceable in accordance
with their terms; provided, however, that this representation
with respect to enforceability is limited by bankruptcy,
insolvency, or other laws of general application relating to or
affecting the enforcement of creditors' rights.
(c) DUE AUTHORIZATION-CORPORATION AND PARTNERSHIP. The execution,
delivery and performance of this Agreement, the Note and all
other Credit Documents by Borrower have been duly authorized by
all corporate or partnership action required for the lawful
creation and issuance and performance thereof and will not
violate any provisions of law, any order of any court or
governmental agency, the charter documents and by-laws of, or
partnership agreement of Borrower.
(d) CONFLICTING INSTRUMENTS. The execution, delivery and
performance of this Agreement, the Note and all other Credit
Documents will not violate any provisions of any indenture,
agreement, or other instrument to which Borrower or any of
Borrower's properties or assets are bound, and will not be in
conflict with, result in a breach of, or constitute (with due
notice and/or lapse of time) a default under any such indenture,
agreement, or other instrument, or result in the creation or
imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of Borrower.
(e) AUTHORIZATION AND CONSENTS. No authorization, consent,
approval, license or exemption of, and no registration,
qualification, designation, declaration or filing with any court
or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, is necessary to the valid
execution,
delivery and performance of this Agreement, the Note or any other
Credit Document by Borrower.
(f) FINANCIAL CONDITION. The most recent financial statements of
Borrower delivered to the Bank are true and correct and represent
fairly its financial position as of the date thereof; and the
results of its operations for the period or periods indicated;
and show all known liabilities, direct or contingent, of Borrower
as of the date thereof required to be shown in accordance with
GAAP. Since the date of such financial statements, there has been
no material adverse change in the condition, financial or
otherwise, of Borrower or in the operations, business or
properties of Borrower and, since such date, Borrower has not
incurred, other than in the ordinary course of business, any
indebtedness, liabilities, obligations or commitments, contingent
or otherwise, other than indebtedness created hereunder and
obligations in connection with the merger agreement and offer to
purchase concerning Xxxxx Steam Corp.
(g) COMPLIANCE WITH LAWS. Neither the Borrower nor any subsidiary
is in violation of or subject to any contingent liability on
account of any law or any order or regulation issued by any court
or governmental authority, state or federal, including but not
limited to the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), the Internal Revenue Code of 1986, as
amended (the "Code"), any applicable occupational and health or
safety law, environmental protection or pollution control law or
hazardous waste or toxic substances management, handling or
disposal law, except such as will not be materially adverse to
the business of Borrower and its subsidiaries taken as a whole.
(h) LITIGATION. Except as previously disclosed in writing to Bank
prior to the date of this Agreement, there is no action, suit or
proceeding at law or in equity or by or before any governmental
instrumentality or other agency now pending, or to the knowledge
of Borrower, threatened by or against or affecting Borrower or
any of the properties or rights of Borrower which, if adversely
determined, would impair the right of Borrower to carry on its
business substantially as now conducted or would adversely affect
the financial condition, business or operations of Borrower.
(i) MISREPRESENTATION. Neither this Agreement, the Note, the
other Credit Documents, nor any other document, statement,
financial statement, or certificate furnished to Bank by or on
behalf of Borrower in connection herewith, contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements contained therein not
misleading.
2. CONDITIONS. The obligation of Bank to make any Loan hereunder
is subject to the performance by Borrower of its obligations to
be performed hereunder and under the Note and the other Credit
Documents on or before the date of such Loan and to the
satisfaction of the following further conditions:
(a) The representations and warranties contained herein, in the
Note and in the other Credit Documents shall be true on and as of
the date of each Loan hereunder with the same effect as though
made on and as of each such date; on each such date no "Event of
Default" under and as defined in the Note and no event, act or
condition which with notice or the passage of time or both would
constitute such an Event of Default shall have occurred and be
continuing or exist or shall occur or exist after giving effect
to the Loan to made on such date; and any request for borrowing
under Section 2.(b) below shall constitute a certification by
Borrower to both such effects.
(b) Borrower shall have provided Bank with written notice (or
telephonic notice confirmed in writing) of the proposed Loan
specifying the principal amount thereof and the proposed date
thereof, which notice shall be received by Bank at its designated
office no later than 1:00 p.m., local time at the place where the
proposed Loan is to be payable, on the date (which shall be a day
on which Bank is opened for business) of such proposed Loan. In
the event Bank receives telephonic notice, Bank may act in
reliance upon such telephonic notice, provided Bank has acted in
good faith.
(c) The conditions, if any, specified in any Supplement hereto
and in the Note or any Credit Document shall have been met to the
satisfaction of Bank.
(d) All legal details and proceedings in connection with the
transactions contemplated by this Agreement shall be reasonably
satisfactory to Bank and Bank shall have received all such
counterpart originals or certified or other copies of such
documents and records of proceedings in connection with such
transactions, in form and substance reasonably satisfactory to
Bank, as Bank may from time to time reasonably request.
3. GENERAL COVENANTS. In addition to the covenants contained in
the Note and the other Credit Documents, Borrower hereby
covenants and agrees that, so long as any of the Loans are
outstanding, or if there are no Loans outstanding so long as the
Commitment Period has not expired, Borrower shall, except as Bank
may otherwise agree in writing:
(a) FINANCIAL STATEMENTS-ANNUAL. Furnish to Bank,
within ___________ days after the end of each fiscal year of
Borrower, a financial statement of Borrower's profit and loss and
surplus for such fiscal year and a balance sheet as of the end of
such fiscal year, in each case setting forth in comparative form
the corresponding figures for the preceding fiscal year, all in
reasonable detail and
See attached Supplement to Revolving Line of Credit
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Agreement.
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CL-400 (9/98)
L.C. (9/89) PD 12/89
(b) FINANCIAL STATEMENTS-OTHER. Furnish to Bank each financial
statement required to be delivered to Bank by any supplement,
addendum or amendment hereto, and such other information
concerning the financial or business affairs of Borrower as may
be reasonably requested by Bank from time to time.
(c) PROPERTY. Maintain and keep all its property in good repair,
working order and condition and make or cause to be made all
necessary or appropriate repairs, renewals, replacements,
substitutions, additions, betterments and improvements thereto so
that the efficiency of all such properties shall at all times be
properly preserved and maintained.
(d) TAXES AND ASSESSMENTS. Duly pay and discharge all taxes,
assessments and governmental charges levied upon or assessed
against it or against its properties or income prior to the date
on which penalties are attached thereto, unless and except to the
extent only that such taxes, assessments and charges shall be
contested in good faith and by appropriate proceedings diligently
conducted by Borrower (unless and until foreclosure, distraint,
sale or other similar proceedings shall have been commenced) and
provided that such reserve or their appropriate provisions, if
any, as shall be required by generally accepted accounting
principles shall have been made therefor.
(e) LITIGATION. Promptly give notice in writing to Bank of the
occurrence of any material litigation, arbitration or
governmental proceeding affecting Borrower, and of any
governmental investigation or labor dispute pending or, to the
knowledge of Borrower, threatened which could reasonably be
expected to interfere substantially with normal operations of the
business of Borrower or materially adversely, affect the
financial condition, business, or operations of Borrower.
(f) BOOKS AND RECORDS. Maintain and keep proper records and books
of account in conformance with generally accepted accounting
principles applied on a consistent basis in which full, true and
correct entries shall be made of all its dealings and business
affairs.
(g) ACCESS TO PROPERTIES, BOOKS AND RECORDS. Permit any of the
officers, employees or representatives of Bank to visit and
inspect any of the properties of Borrower and to examine its
books and records and discuss the affairs, finances and accounts
of Borrower with representatives thereof, during normal business
hours, and as often as Bank may request.
(h) FINANCIAL INFORMATION-GUARANTORS. Cause any third party
guarantor of the Loans to submit annually or at any time there is
a material change in their financial position, personal or
business financial statements containing such financial
information as may be requested by Bank from time to time.
(i) OTHER OBLIGATIONS. Maintain all obligations of Borrower in
whatsoever manner incurred, including but not limited to
obligations for borrowed money or for services or goods purchased
by Borrower, in a current status.
(j) CONTINUANCE OF BUSINESS. Not engage in any line of business
other than those in which it is actively engaged in on the date
hereof and associated lines of business and the businesses of
Xxxxx Steam Corp. and its subsidiaries.
(k) COMPLIANCE WITH LAWS. Comply, and shall cause any subsidiary
to comply, with all laws, and all regulations or orders issued
pursuant thereto, including but not limited to ERISA, the Code,
any applicable occupational, and health or safety law,
environmental protection or pollution control law or hazardous
waste or toxic substances management, handling or disposal law.
(1) SALE OF ASSETS. Except for sales or other dispositions of
inventory in the ordinary course of business, not sell, lease,
transfer, or otherwise dispose of in a single transaction, or a
series of related transactions, all or a substantial part of the
property and assets of Borrower, whether now owned or hereafter
acquired, to any person, firm or corporation.
(m) ACQUISITION OF ASSETS. Not purchase or otherwise acquire all
or substantially all of the operating assets of any other person,
firm or corporation and, if Borrower is a corporation, not merge
or consolidate with or into any other person, firm or
corporation, or permit any other person, firm or corporation to
merge with or into it, or acquire all or substantially all of the
property or assets of any other person, firm or corporation.
(n) SELLING ACCOUNTS RECEIVABLE. Not sell, assign or discount any
of its accounts receivable or any promissory note held by it,
with or without recourse, other than the discount of such
receivables or notes in the ordinary course of business for
collection.
(o) PAYMENTS ON OUTSTANDING STOCK. Pursuant to or in
contemplation of termination, liquidation, dissolution or winding
up of Borrower, not purchase, redeem or retire or make any
dividend on or distribution on account of, if Borrower is a
corporation, any shares of the capital stock of Borrower or if
Borrower is a partnership, any capital account of any partner of
such partnership.
(p) AFFILIATED ENTITIES. Not establish any partnership
subsidiary, corporation, joint venture or other form of business
combination.
(q) INSURANCE. Keep all insurable property, real and personal,
now owned or hereafter acquired, insured at all times against
loss or damage by fire and extended coverage risks and other
hazards of the kinds customarily insured against and in amounts
customarily carried by businesses engaged in comparable
businesses and comparably situated; effect all such insurance
under valid and enforceable policies issued by insurers of
recognized responsibility not unacceptable to Bank; and, promptly
from time to time upon request of Bank, deliver to Bank a
CL-400 (9/98)
L.C. (9/89) PD 12/89
summary schedule in indicating all insurance then in effect.
(r) INVESTMENTS. Not purchase, own, invest in or otherwise
acquire, directly or indirectly, any stock or other securities or
make or permit to exist any investment or capital contribution or
acquire any interest whatsoever in any other person, firm or
corporation or permit to exist any loans or advances for such
purposes except for investments in direct obligations of the
United States of America or any agency thereof, obligations
guaranteed by the United States of America, certificates of
deposit issued by a bank or trust company, organized under the
laws of the United States, or any state thereof, or marketable
securities which are publicly traded on a nationally recognized
market.
(s) PATENTS. Preserve and protect its patents, franchises,
licenses, trademarks, trademark rights, tradenames, tradename
rights, and copyrights used or useful in the conduct of its
business.
(t) GUARANTEES AND CONTINGENCIES. Not endorse, assume, guarantee,
become surety for, or otherwise become or remain liable in
connection with the obligations of any person, firm or
corporation, except Borrower may endorse negotiable or other
instruments for deposit or collection or similar transactions in
the ordinary course of its business and may guarantee or become
surety for obligations of wholly-owned subsidiaries of Borrower.
(u) TRANSACTIONS WITH AFFILIATES. Not enter into any transaction,
including, without limitation, the purchase, sale, leasing or
exchange of property, real or personal, or the rendering of any
service, with any person, firm or corporation affiliated with
Borrower, except in the ordinary course of and pursuant to the
reasonable requirements of Borrower's business and upon fair and
reasonable terms no less favorable to Borrower than would be
obtained in a comparable arm's-length transaction with any other
person, firm or corporation not affiliated with Borrower. This
provision shall not apply to transactions between Borrower, on
the one hand, and one or more of its wholly-owned subsidiaries,
on the other hand.
(v) MODIFICATIONS TO OTHER AGREEMENTS. Not amend or modify any
existing agreement with any person, firm or corporation in any
manner materially adverse to Borrower.
(w) NOTICE OF EVENT OF DEFAULT. Promptly give notice in writing
to Bank of the occurrence of any Event of Default under and as
defined in the Note, and of any condition, event, act or omission
which, with the giving of notice or the lapse of time or both,
would constitute such an Event of Default.
4. GENERAL PROVISIONS.
(a) WAIVERS. The provisions of this Agreement may from time to
time be waived in writing by Bank in its sole discretion. Any
such waiver of any kind on the part of Bank of any breach or
default under this Agreement or any waiver of any provision or
condition of this Agreement must be in writing and shall be
effective only to the extent set forth in such writing. No delay
by Bank in exercising any right or remedy hereunder shall operate
as a waiver thereof.
(b) FINANCIAL COVENANTS. Compliance or non-compliance with all
financial covenants of Borrower contained herein, or in any
supplement, addendum or amendment hereto, shall be determined in
accordance with generally accepted accounting principles applied
on a consistent basis. All financial statements of Borrower
required to be delivered to Bank hereby, or by any written
supplement now or hereafter executed by Borrower in which
reference to this Agreement is made, shall be prepared on the
basis of generally accepted accounting principles applied on a
consistent basis.
(c) BINDING NATURE. The rights and privileges of Bank contained
in this Agreement shall inure to the benefit of its successors
and assigns, and the duties of Borrower shall bind all heirs,
personal representatives, successors, and assigns. "Borrower"
refers individually and collectively to all signers of this
Agreement, including, in the case of any partnership, all general
partners of such partnership individually and collectively,
whether or not such partners sign below. Each of the signers
shall be jointly and severally bound by the terms hereof, and,
with respect to any partnership executing this Agreement, each
general partner shall be bound hereby both in such general
partner's individual and partnership capacities.
(d) GOVERNING LAW. Time of performance hereunder is of the
essence of this Agreement. This Agreement and any written
supplement hereto executed by Borrower in which reference to this
Agreement is made shall in all respects be governed by the laws
of the state where the Note is payable (except to the extent that
federal law governs).
(e) SEVERABILITY. If any provision hereof shall for any reason be
held invalid or unenforceable, no other provision shall be
affected thereby, and this Agreement shall be construed as if the
invalid or unenforceable provision had never been a part of it.
The descriptive headings hereof are for convenience only and
shall not in any way affect the meaning or construction of any
provision hereof.
5. SPECIAL COVENANTS. In addition to the covenants contained
herein and in the Note and the other Credit Documents, Borrower
hereby agrees that, so long as any of the Loans are outstanding,
or if there are no Loans outstanding so long as the Commitment
Period has not expired, Borrower shall, except as Bank may grant
its prior written consent, comply with the special provisions or
covenants set forth in any written supplement, now or hereafter
executed by Borrower, in which reference to this Agreement is
made.
CL-400 (9/98)
L.C. (9/89) PD 12/89
Signatures
Witness the due execution hereof intending to be legally bound
this 15th day of October, 1998.
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Witness: Individual:
x x (Seal)
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Address
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Witness: Individual:
x x (Seal)
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Address
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Corporation or Other Entity
XXXXXXX CORPORATION
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Attest/Witness: By: (Signature and Title)
x /s/ Xxxxxx Xxxxxxx x /s/ Xxxxxx X. Xxxxxxxx (Seal)
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By: (Signature and Title)
x x Senior Vice President (Seal)
(Corporate Seal) ----------------------------------
Business Address
0000 Xxxxxxxxxx Xxxxxx,
X.X. Xxx 0000,
Xxxxxxxxx, XX 00000
MELLON BANK, N.A.
/s/ Xxxxxx X. Xxxxx
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By: Xxxxxx X. Xxxxx
Title: Vice President
Business Address
00 Xxxxx Xxxxxx Xxxxxx,
0xx Xxxxx
Xxxxxxxxxx, XX 00000
