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EXHIBIT 10.26
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT
BETWEEN
CABOT MICROELECTRONICS CORPORATION
AND
LASALLE BANK NATIONAL ASSOCIATION
DATED AS OF JULY 10, 2001
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TABLE OF CONTENTS
Page
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SECTION 1 DEFINITIONS.....................................................................................1
1.1 Definitions.........................................................................................1
1.2 Other Interpretive Provisions......................................................................11
SECTION 2 DESCRIPTION OF TERM LOAN; CONVERSION AND CONTINUATION PROCEDURES...............................11
2.1 Term Loan..........................................................................................11
2.2 Loan Procedures....................................................................................11
2.2.1 Various Types of Loans..................................................................11
2.2.2 Conversion and Continuation Procedures..................................................12
2.2.3 Conversion and Continuation Procedures..................................................12
2.2.4 Any conversion of a Eurodollar Loan on a day other than the last day of an Interest
Period therefor shall be subject to Section 7.4.........................................13
2.3 Certain Conditions.................................................................................13
SECTION 3 NOTE; RECORDKEEPING............................................................................13
3.1 Note...............................................................................................13
3.2 Recordkeeping......................................................................................13
SECTION 4 INTEREST.......................................................................................14
4.1 Interest Rates.....................................................................................14
4.2 Interest Payment Dates.............................................................................14
4.3 Setting and Notice of Eurodollar Rates.............................................................14
4.4 Computation of Interest............................................................................15
SECTION 5 PREPAYMENTS....................................................................................15
5.1 Prepayments........................................................................................15
5.2 All Prepayments....................................................................................15
SECTION 6 MAKING OF PAYMENTS; SETOFF; TAXES..............................................................15
6.1 Making of Payments.................................................................................15
6.2 Application of Certain Payments....................................................................15
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6.3 Due Date Extension.................................................................................15
6.4 Setoff.............................................................................................15
6.5 Taxes..............................................................................................16
SECTION 7 INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR
LOANS..........................................................................................16
7.1 Increased Costs....................................................................................16
7.2 Basis for Determining Interest Rate Inadequate or Unfair...........................................17
7.3 Changes in Law Rendering Eurodollar Loans Unlawful.................................................18
7.4 Funding Losses.....................................................................................18
7.5 Right of the Bank to Fund through Other Offices....................................................18
7.6 Discretion of the Bank as to Manner of Funding.....................................................19
7.7 Mitigation of Circumstances........................................................................19
7.8 Conclusiveness of Statements; Survival of Provisions...............................................19
SECTION 8 REPRESENTATIONS AND WARRANTIES.................................................................19
8.1 Organization.......................................................................................19
8.2 Authorization; No Conflict.........................................................................20
8.3 Validity and Binding Nature........................................................................20
8.4 Financial Condition................................................................................20
8.5 No Material Adverse Change.........................................................................20
8.6 Litigation and Contingent Liabilities..............................................................21
8.7 No Materially Adverse Contracts, etc...............................................................21
8.8 Compliance.........................................................................................21
8.9 Taxes..............................................................................................21
8.10 Information........................................................................................21
8.11 Solvency...........................................................................................22
8.12 No Default.........................................................................................22
8.13 Use of Proceeds....................................................................................22
8.14 Subsidiaries.......................................................................................22
8.15 Ownership of Properties; Liens.....................................................................22
8.16 Intellectual Property..............................................................................22
8.17 Insurance..........................................................................................22
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8.18 Investment Company Act; Public Utility Holding Company Act.........................................23
8.19 Regulations T, U and X.............................................................................23
8.20 Securities Matters.................................................................................23
8.21 Pension and Welfare Plans..........................................................................23
8.22 Environmental Matters..............................................................................23
8.23 Labor Matters......................................................................................25
8.24 Disclosure.........................................................................................25
8.25 Survival of Warranties.............................................................................25
SECTION 9 COVENANTS......................................................................................25
9.1 Reports, Certificates and Other Information........................................................25
9.1.1 Annual Report...........................................................................25
9.1.2 Interim Reports.........................................................................26
9.1.3 Compliance Certificates.................................................................26
9.1.4 Reports to the SEC and to Shareholders..................................................26
9.1.5 Notice of Default, Litigation and ERISA Matters.........................................26
9.1.6 Management Reports......................................................................27
9.1.7 Projections.............................................................................27
9.1.8 Debt Notices............................................................................27
9.1.9 Other Information.......................................................................27
9.2 Books, Records and Inspections.....................................................................27
9.3 Compliance with Laws; Payment of Taxes and Liabilities.............................................28
9.4 Maintenance of Property; Insurance.................................................................28
9.5 Maintenance of Existence, etc......................................................................28
9.6 Financial Covenants................................................................................28
9.6.1 Leverage Ratio..........................................................................28
9.6.2 Debt Service Coverage Ratio.............................................................29
9.6.3 Minimum Net Worth.......................................................................29
9.7 Limitations on Debt................................................................................29
9.8 Liens..............................................................................................30
9.9 Operating Leases...................................................................................31
9.10 Restricted Payments................................................................................31
9.11 Mergers, Consolidations, Acquisitions, Sales.......................................................31
9.12 Modification of Documents..........................................................................33
9.13 Use of Proceeds....................................................................................33
9.14 Further Assurances.................................................................................33
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9.15 Transactions with Affiliates.......................................................................33
9.16 Employee Benefit Plans.............................................................................33
9.17 Environmental Matters..............................................................................33
9.18 Inconsistent Agreements............................................................................34
9.19 Investments........................................................................................34
9.20 Fiscal Year........................................................................................35
SECTION 10 EFFECTIVENESS; CONDITIONS OF LENDING, ETC......................................................35
10.1 Deliveries.........................................................................................35
10.1.1 Loan Documents..........................................................................35
10.1.2 Guaranty................................................................................35
10.1.3 Credit Agreement........................................................................35
10.1.4 Insurance...............................................................................35
10.1.5 Payment of Attorney Costs...............................................................35
10.1.6 Other...................................................................................35
10.2 Compliance with Warranties, No Default, etc........................................................35
SECTION 11 EVENTS OF DEFAULT AND THEIR EFFECT.............................................................36
11.1 Events of Default..................................................................................36
11.1.1 Non-Payment of the Term Loan, etc.......................................................36
11.1.2 Non-Payment of Other Debt...............................................................36
11.1.3 Other Material Obligations..............................................................36
11.1.4 Bankruptcy, Insolvency, etc.............................................................36
11.1.5 Non-Compliance with Loan Documents......................................................37
11.1.6 Representation and Warranties...........................................................37
11.1.7 Pension Plans...........................................................................37
11.1.8 Judgments...............................................................................37
11.1.9 Rodel Litigation........................................................................37
11.1.10 Invalidity of Guaranty, etc.............................................................38
11.1.11 Change of Control.......................................................................38
11.1.12 Injunctions.............................................................................38
11.1.13 Work Stoppages..........................................................................38
11.1.14 Loss of Licenses or Permits.............................................................38
11.1.15 Forfeitures.............................................................................39
11.1.16 Cancellation, Invalidity of Loan Documents..............................................39
11.2 Effect of Event of Default.........................................................................39
SECTION 12 GENERAL........................................................................................39
12.1 Waiver; Amendments.................................................................................39
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12.2 Confirmations......................................................................................39
12.3 Notices............................................................................................39
12.4 Computations.......................................................................................40
12.5 Regulation U.......................................................................................40
12.6 Costs, Expenses and Taxes..........................................................................40
12.7 Subsidiary References..............................................................................40
12.8 Captions...........................................................................................40
12.9 Succesors, Participants and Assigns................................................................41
12.10 Governing Law......................................................................................41
12.11 Counterparts.......................................................................................41
12.12 Indemnification by the Company.....................................................................41
12.13 Nonliability of the Bank...........................................................................42
12.14 Forum Selection and Consent to Jurisdiction........................................................42
12.15 Waiver of Jury Trial...............................................................................43
12.16 Confidentiality....................................................................................43
[Remainder of page left intentionally blank.]......................................................43
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SCHEDULES
PRICING SCHEDULE
SCHEDULE 8.6 Litigation and Contingent Liabilities
SCHEDULE 8.14 Subsidiaries
SCHEDULE 8.16 Intellectual Property
SCHEDULE 8.17 Insurance
SCHEDULE 8.21 Pension and Welfare Plans
SCHEDULE 8.22 Environmental Matters
SCHEDULE 9.7 Existing Debt
SCHEDULE 9.8 Existing Liens
SCHEDULE 9.9 Existing Operating Leases
SCHEDULE 9.19 Investments
SCHEDULE 12.3 Addresses for Notices
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EXHIBITS
EXHIBIT A Form of Term Note (Section 3.1)
EXHIBIT B Form of Compliance Certificate (Section 9.1.3)
EXHIBIT C Form of Guaranty (Section 1.1)
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SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of July 10, 2001
(this "Agreement") is entered into between CABOT MICROELECTRONICS CORPORATION
(the "Company") and LASALLE BANK NATIONAL ASSOCIATION (the "Bank").
PRELIMINARY STATEMENT
A. The Company and the Bank are parties to an Amended and Restated Credit
Agreement dated as of July 5, 2000 (as amended, supplemented or otherwise
modified from time to time, the "Existing STEP Credit Agreement"), under which
the Bank has made available to the Company a Term Loan and a revolving credit
facility upon the terms and conditions set forth therein.
B. Concurrently herewith, the Company, the financial institutions from time
to time parties thereto, the Bank, as administrative agent for such financial
institutions, and National City Bank of Michigan/Illinois, a national banking
association, as syndication agent for such financial institutions, have entered
into a Credit Agreement (such Credit Agreement, as the same hereafter may be
amended, modified, supplemented or restated from time to time, hereinafter is
referred to as the "Credit Agreement"), pursuant and subject to the terms and
conditions of which such financial institutions have agreed to extend certain
financing arrangements to the Company;
C. One of the conditions precedent to the obligations of the financial
institutions from time to time parties to the Credit Agreement is that the
Company and the Bank amend and restate the Existing STEP Credit Agreement in its
entirety on the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, and in consideration of the mutual
agreements herein contained, the Existing STEP Credit Agreement is amended and
restated in its entirety as follows:
SECTION 1
DEFINITIONS
1.1 Definitions. When used herein the following terms shall have the
following meanings:
Acquisition means any transaction or series of related transactions for the
purpose of or resulting, directly or indirectly, in (a) the acquisition of all
or substantially all of the assets of a Person, or of all or substantially all
of any division of a Person, (b) the acquisition of in excess of 50% of the
capital stock, partnership interests, membership interests or equity of any
Person, or otherwise causing any Person to become a Subsidiary, or (c) a merger
or consolidation or any other combination with another Person.
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Affected Loan - see Section 7.3.
Affiliate of any Person means (i) any other Person which, directly or
indirectly, controls or is controlled by or is under common control with such
Person and (ii) any officer or director of such Person. A Person shall be deemed
to be "controlled by" any other Person if such Person possesses, directly or
indirectly, power to vote 5% or more of the securities (on a fully diluted
basis) having ordinary voting power for the election of directors or managers or
power to direct or cause the direction of the management and policies of such
Person whether by contract or otherwise.
Agreement - see the Preamble.
Attorney Costs means, with respect to any Person, all reasonable fees and
charges of any counsel to such Person, the reasonable allocable cost of internal
legal services of such Person, all reasonable disbursements of such internal
counsel and all court costs and similar legal expenses.
Bank - see the Preamble.
Base Rate means at any time the greater of (a) the Federal Funds Rate plus
0.5% and (b) the Prime Rate.
Base Rate Loan means any portion of the Term Loan which bears interest at
or by reference to the Base Rate.
Base Rate Margin - see the Pricing Schedule.
Business Day means any day on which the Bank is open for commercial banking
business in Chicago, Illinois and, in the case of a Business Day which relates
to a Eurodollar Loan, on which dealings are carried on in the London interbank
eurodollar market.
Capital Lease means, with respect to any Person, any lease of (or other
agreement conveying the right to use) any real or personal property by such
Person that, in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of such Person, other than the Tuscola Unit C Agreement.
Cash Equivalent Investment means, at any time, (a) any evidence of Debt,
maturing not more than one year after such time, issued or guaranteed by the
United States government or any agency thereof (or, in the case of foreign
operations, any country that is a member of the Organisation for Economic
Co-operation and Development), (b) commercial paper, maturing not more than one
year from the date of issue, or corporate demand notes, in each case rated at
least A-l by Standard & Poor's Ratings Group or P-l by Xxxxx'x Investors
Service, Inc., (c) any certificate of deposit (or time deposits represented by
such certificates of deposit) or banker's acceptance, maturing not more than one
year after such time, or overnight Federal Funds transactions that are issued or
sold by the Bank or its holding company or by a commercial banking institution
that is a
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member of the Federal Reserve System (or, in the case of foreign operations, a
commercial banking institution organized under the laws of a country that is a
member of the Organisation for Economic Co-operation and Development) and has a
combined capital and surplus and undivided profits of not less than $500,000,000
and (d) any repurchase agreement entered into with the Bank (or other commercial
banking institution of the stature referred to in clause (c)) which (i) is
secured by a fully perfected security interest in any obligation of the type
described in any of clauses (a) through (c) and (ii) has a market value at the
time such repurchase agreement is entered into of not less than 100% of the
repurchase obligation of the Bank (or other commercial banking institution)
thereunder.
CERCLA - see Section 8.22.
Closing Date - means July 10, 2001.
Code means the Internal Revenue Code of 1986.
Company - see the Preamble.
Computation Period means each period of four consecutive Fiscal Quarters
ending on the last day of a Fiscal Quarter.
Consolidated Net Income means, with respect to the Company and its
Subsidiaries for any period, the consolidated net income (or loss) of the
Company and its Subsidiaries for such period, plus non-cash losses from sales,
exchanges and other dispositions of assets and other non-cash losses and minus
any gains from sales, exchanges and other dispositions of assets, any other
gains and any gains from discontinued operations.
Controlled Group means all members of a controlled group of corporations
and all members of a controlled group of trades or businesses (whether or not
incorporated) under common control which, together with the Company, are treated
as a single employer under Section 414 of the Code or Section 4001 of ERISA.
Credit Agreement - see the Preliminary Statement.
Debt of any Person means, without duplication, (a) all indebtedness of such
Person for borrowed money, whether or not evidenced by bonds, debentures, notes
or similar instruments, (b) all obligations of such Person as lessee under
Capital Leases which have been or should be recorded as liabilities on a balance
sheet of such Person in accordance with GAAP, (c) all obligations of such Person
to pay the deferred purchase price of property or services (excluding trade
accounts payable in the ordinary course of business), (d) all indebtedness
secured by a Lien on the property of such Person, whether or not such
indebtedness shall have been assumed by such Person, (e) all obligations,
contingent or otherwise, with respect to the face amount of all letters of
credit (whether or not drawn) and banker's acceptances issued for the account of
such Person, (f) all Hedging Obligations of such Person, (g) all Suretyship
Liabilities of such Person and (h) all Debt of any partnership of which such
Person is a general partner.
Debt Service Coverage Ratio means, as of the last day of any Fiscal
Quarter, the ratio of (i) EBIT for the Computation Period ending on such day to
(ii) the sum of (A) Interest Expense
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for such Computation Period plus (B) required payments of principal of Funded
Debt (including the term loans but excluding the revolving loans under the
Credit Agreement) for the succeeding Computation Period.
Disposal - see the definition of "Release".
Dollar and the sign "$" mean lawful money of the United States of America.
Domestic Subsidiary means each Subsidiary of the Company incorporated or
organized in the United States of America or any State or territory thereof.
EBIT means, for any period, Consolidated Net Income for such period plus,
to the extent deducted in determining such Consolidated Net Income, Interest
Expense and income tax expense. EBIT for any period in which one or more
Acquisitions permitted under Section 9.11 have been consummated shall be
calculated on a pro forma basis so as to include the effect such Acquisitions
would have had on EBIT if such Acquisitions had been consummated on the first
day of such period. Such pro forma calculation shall be made only on the basis
of historical audited or reviewed financial statements, without any adjustment,
of the Person acquired or from whom the assets which were the subject of such
Acquisition were acquired, prepared by an accounting firm of national
recognition or otherwise reasonably acceptable to the Bank and broken down by
fiscal quarter in a manner consistent with GAAP.
EBITDA means, for any period, Consolidated Net Income for such period plus,
to the extent deducted in determining such Consolidated Net Income, Interest
Expense, income tax expense, depreciation and amortization for such period.
EBITDA for any period in which one or more Acquisitions permitted under Section
9.11 have been consummated shall be calculated on a pro forma basis so as to
include the effect such Acquisitions would have had on EBITDA if such
Acquisitions had been consummated on the first day of such period. Such pro
forma calculation shall be made only on the basis of historical audited or
reviewed financial statements, without any adjustment, of the Person acquired or
from whom the assets which were the subject of such Acquisition were acquired,
prepared by an accounting firm of national recognition or otherwise reasonably
acceptable to the Bank and broken down by fiscal quarter in a manner consistent
with GAAP.
Environmental Claims means all claims, however asserted, by any
governmental, regulatory or judicial authority alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment.
Environmental Laws means all present or future federal, state or local
laws, statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any governmental authority,
in each case relating to Environmental Matters.
Environmental Matters means any matter arising out of or relating to health
and safety, or pollution or protection of the environment or workplace,
including any of the foregoing relating
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to the presence, use, production, generation, handling, transport, treatment,
storage, disposal, distribution, discharge, release, control or cleanup of any
Hazardous Substance.
ERISA means the Employee Retirement Income Security Act of 1974.
Eurocurrency Reserve Percentage means, with respect to any Eurodollar Loan
for any Interest Period, a percentage (expressed as a decimal) equal to the
daily average during such Interest Period of the percentage in effect on each
day of such Interest Period, as prescribed by the FRB, for determining the
aggregate maximum reserve requirements applicable to "Eurocurrency Liabilities"
pursuant to Regulation D or any other then applicable regulation of the FRB
which prescribes reserve requirements applicable to "Eurocurrency Liabilities"
as presently defined in Regulation D.
Eurodollar Loan means any portion of the Term Loan which bears interest at
a rate determined by reference to the Eurodollar Rate (Reserve Adjusted).
Eurodollar Margin - see the Pricing Schedule.
Eurodollar Office means the office or offices of the Bank which shall be
making or maintaining the Eurodollar Loans hereunder. A Eurodollar Office of the
Bank may be, at the option of the Bank, either a domestic or foreign office.
Eurodollar Rate means, with respect to any Eurodollar Loan for any Interest
Period, a rate per annum equal to the offered rate for deposits in Dollars for a
period equal or comparable to such Interest Period which appears on Telerate
page 3750 as of 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period. "Telerate Page 3750" means the display designated
as "Page 3750" on the Telerate Service (or such other page as may replace page
3750 on that service or such other service as may be nominated by the British
Bankers' Association as the information vendor for the purpose of displaying
British Bankers' Association Interest Settlement Rates for Dollar deposits).
Eurodollar Rate (Reserve Adjusted) means, with respect to any Eurodollar
Loan for any Interest Period, a rate per annum (rounded upwards, if necessary,
to the nearest 1/16th of 1%) determined pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
(Reserve Adjusted) 1-Eurocurrency
Reserve Percentage
Event of Default means any of the events described in Section 11.1.
Existing STEP Credit Agreement - see the Preliminary Statement.
Federal Funds Rate means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor
publication, "H.15(519)") on the preceding Business
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Day opposite the caption "Federal Funds (Effective)"; or, if for any relevant
day such rate is not so published on any such preceding Business Day, the rate
for such day will be the arithmetic mean as determined by the Bank of the rates
for the last transaction in overnight Federal funds arranged prior to 9:00 A.M.
(New York City time) on that day by each of three leading brokers of Federal
funds transactions in New York City selected by the Bank.
Fiscal Quarter means a fiscal quarter of a Fiscal Year.
Fiscal Year means the fiscal year of the Company and its Subsidiaries,
which period shall be the 12-month period ending on September 30th of each year.
References to a Fiscal Year with a number corresponding to any calendar year
(e.g., "Fiscal Year 2000") refer to the Fiscal Year ending on September 30th of
such calendar year.
FRB means the Board of Governors of the Federal Reserve System or any
successor thereto.
Funded Debt means, as to any Person, all Debt of such Person that matures
more than one year from the date of its creation (or is renewable or extendible,
at the option of such Person, to a date more than one year from such date).
GAAP means generally accepted accounting principles set forth from time to
time in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the date of
determination.
Group - see Section 2.2.1.
Guarantor Subsidiary means each Subsidiary of the Company which executes a
Guaranty.
Guaranty means a guaranty substantially in the form of Exhibit C.
Hazardous Substances - see Section 8.22.
Hedging Agreement means any interest rate, currency or commodity swap
agreement, cap agreement or collar agreement, and any other agreement or
arrangement designed to protect a Person against fluctuations in interest rates,
currency exchange rates or commodity prices.
Hedging Obligation means, with respect to any Person at any time, the
liability of such Person under any Hedging Agreement at such time as determined
on a xxxx-to-market basis.
Indemnified Liabilities - see Section 12.12.
Interest Expense means for any period the consolidated interest expense of
the Company and its Subsidiaries for such period (including all imputed interest
on Capital Leases).
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Interest Period means, as to any Eurodollar Loan, the period commencing on
the date the applicable portion of the Term Loan is continued as or converted
into a Eurodollar Loan and ending on the date one, two, three or six months
thereafter as selected by the Company pursuant to Section 2.2.2 or 2.2.3, as the
case may be; provided that:
(i) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the
following Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event
such Interest Period shall end on the preceding Business Day;
(ii) any Interest Period that begins on a day for which there is
no numerically corresponding day in the calendar month at the end of
such Interest Period shall end on the last Business Day of the
calendar month at the end of such Interest Period;
(iii) the Company may not select any Interest Period for any
portion of the Term Loan if, after giving effect to such selection,
the aggregate principal amount of the Term Loan having Interest
Periods ending after any date on which an installment of the Term Loan
is scheduled to be repaid would exceed the aggregate principal amount
of the Term Loan scheduled to be outstanding after giving effect to
such repayment.
Investment means, relative to any Person, any investment in another Person,
whether by acquisition of any debt or equity security, by making any loan or
advance or by becoming obligated with respect to a Suretyship Liability in
respect of obligations of such other Person (other than travel and similar
advances to employees in the ordinary course of business).
Leverage Ratio means, as of the last day of any Fiscal Quarter, the ratio
of (i) the remainder of (A) Total Debt as of such day minus (B) the aggregate
amount of all cash on hand and Cash Equivalent Investments of the Company and
its Subsidiaries as of such day to (ii) EBITDA for the Computation Period ending
on such day.
Lien means, with respect to any Person, any interest granted by such Person
in any real or personal property, asset or other right owned or being purchased
or acquired by such Person which secures payment or performance of any
obligation and shall include any mortgage, lien, encumbrance, charge or other
security interest of any kind, whether arising by contract, as a matter of law,
by judicial process or otherwise.
Loan Documents means this Agreement, the Note and the Guaranty.
Loan Party means the Company and each Subsidiary.
Margin Stock means any "margin stock" or "margin security" as such terms
are defined in Regulations U and X of the FRB.
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Material Adverse Effect means (a) a material adverse change in, or a
material adverse effect upon, the financial condition, operations, assets,
business, properties or prospects of the Company and its Subsidiaries taken as a
whole, (b) a material impairment of the ability of the Company or any Subsidiary
to perform any of its obligations under any Loan Document or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against the Company or any Subsidiary of any Loan Document.
Maturity Date means the earlier to occur of (a) April 3, 2005 and (b) such
other date on which obligations hereunder become due and payable pursuant to
Section 11.
Mortgage Debt means Debt secured by Mortgage Liens.
Mortgage Liens means Liens granted by the Company or any Subsidiary which
attach solely to real estate and the improvements thereon.
Multiemployer Pension Plan means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Company or any member of the
Controlled Group may have any liability.
Net Worth means at any date the consolidated net worth of the Company and
its Subsidiaries as of such date as determined in accordance with GAAP.
Note - see Section 3.1.
Operating Lease means any lease of (or other agreement conveying the right
to use) any real or personal property by the Company or any Subsidiary, as
lessee, other than any Capital Lease.
PBGC means the Pension Benefit Guaranty Corporation and any entity
succeeding to any or all of its functions under ERISA.
Pension Plan means a "pension plan", as such term is defined in Section
3(2) of ERISA, which is subject to Title IV of ERISA (other than a Multiemployer
Pension Plan), and to which the Company or any member of the Controlled Group
may have any liability, including any liability by reason of having been a
substantial employer within the meaning of Section 4063 of ERISA at any time
during the preceding five years, or by reason of being deemed to be a
contributing sponsor under Section 4069 of ERISA.
Person means any natural person, corporation, partnership, trust, limited
liability company, association, governmental authority or unit, or any other
entity, whether acting in an individual, fiduciary or other capacity.
Pricing Schedule - the Pricing Schedule attached hereto.
Prime Rate means, for any day, the rate of interest in effect for such day
as publicly announced from time to time by the Bank as its prime rate (whether
or not such rate is actually
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charged by the Bank). Any change in the Prime Rate announced by the Bank shall
take effect at the opening of business on the day specified in the public
announcement of such change.
RCRA - see Section 8.22.
Regulation D means Regulation D of the FRB.
Regulation T means Regulation T of the FRB.
Regulation U means Regulation U of the FRB.
Regulation X means Regulation X of the FRB.
Release has the meaning specified in CERCLA and the term "Disposal" (or
"Disposed") has the meaning specified in RCRA; provided that in the event either
CERCLA or RCRA is amended so as to broaden the meaning of any term defined
thereby, such broader meaning shall apply as of the effective date of such
amendment; and provided, further, that to the extent that the laws of a state
wherein any affected property lies establish a meaning for "Release" or
"Disposal" which is broader than is specified in either CERCLA or RCRA, such
broader meaning shall apply.
Rodel Litigation means the actions pending in the United States District
Court for the District of Delaware entitled Rodel, Inc. x. Xxxxx Corporation
(Civil Action No. 98-352) and Rodel, Inc. x. Xxxxx Corporation (Civil Action No.
99-256) and any other litigation or cause of action against Cabot Corporation or
the Company based upon the same patents at issue in such actions.
SEC means the Securities and Exchange Commission or any other governmental
authority succeeding to any of the principal functions thereof.
Securities Laws - see Section 8.20.
STEP means the State of Illinois State Treasurer's Economic Program.
STEP Rate means a fixed interest rate equal to (i) 6.37% per annum until
April 3, 2002 and (ii) from and after April 3, 2002, 1.75% per annum plus 70% of
the "three year treasury rate." For purposes of this definition, "three year
treasury rate" means the rate for U.S. Treasury Bonds maturing closest to the
Maturity Date announced in the Wall Street Journal or any similar publication on
April 3, 2002 unless a different rate per annum is designated by the Treasurer
of the State of Illinois as the interest rate contemplated by STEP with respect
to the funds maintained by the State of Illinois on deposit with the Bank in an
amount at least equal to the then outstanding principal amount of the Term Loan
for the purpose of funding the Company under STEP.
Subsidiary means, with respect to any Person, a corporation, partnership,
limited liability company or other entity of which such Person and/or its other
Subsidiaries own, directly or indirectly, such number of outstanding shares or
other ownership interests as have more than
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50% of the ordinary voting power for the election of directors or other managers
of such corporation, partnership, limited liability company or other entity.
Unless the context otherwise requires, each reference to Subsidiaries herein
shall be a reference to Subsidiaries of the Company.
Suretyship Liability means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is contingently
liable upon (by direct or indirect agreement, contingent or otherwise, to
provide funds for payment, to supply funds to or otherwise to invest in a
debtor, or otherwise to assure a creditor against loss) any indebtedness,
obligation or other liability of any other Person (other than by endorsements of
instruments in the course of collection), or guarantees the payment of dividends
or other distributions upon the shares of any other Person. The amount of any
Person's obligation in respect of any Suretyship Liability at any time shall
(subject to any limitation set forth therein) be deemed to be the maximum amount
of the debt, obligation or other liability supported thereby, or, in the case of
contingent or unliquidated indemnification obligations, the amount which has
been, or, in accordance with GAAP should be, recorded as a liability on or
reserved for in such Person's balance sheet at such time. Notwithstanding
anything in this definition to the contrary, the term "Suretyship Liability"
shall not include any amount paid or payable by the Company or any Subsidiary
(a) to or for the benefit of any officer, director or employee of the Company or
any Subsidiary or (b) to any customer, supplier, vendor or other Person arising
in the ordinary course of the Company's or such Subsidiary's business and
consistent with its prior practices.
Term Loan - see Section 2.1.
Total Debt means all Debt of the Company and its Subsidiaries, determined
on a consolidated basis, excluding (a) contingent or unliquidated obligations in
respect of Suretyship Liabilities (except to the extent (i) the amount thereof
has been, or in accordance with GAAP should be, recorded as a liability on or
reserved for in the Company's consolidated balance sheet at such time and the
validity thereof is not being contested by the Company, such Subsidiary or the
party in interest in good faith by appropriate proceedings diligently conducted
or (ii) constituting Suretyship Liabilities in respect of Debt of a Person other
than the Company or any Subsidiary), (b) Hedging Obligations, and (c) Debt of
the Company to Subsidiaries and Debt of Subsidiaries to the Company or to other
Subsidiaries.
Tuscola Unit C Agreement means the agreement contemplated between the
Company and Cabot Corporation whereby Cabot Corporation has constructed, and
owns, and will operate and maintain a commercial production unit at its
production facilities in Tuscola, Illinois for the primary purpose of producing
fumed alumina to be sold by Cabot Corporation to the Company and purchased by
the Company from Cabot Corporation subject to the terms of such agreement.
Unmatured Event of Default means any event that, if it continues uncured,
will, with lapse of time or notice or both, constitute an Event of Default.
Wholly-Owned Subsidiary means, as to any Person, another Person all of the
shares of capital stock or other ownership interests of which (except directors'
qualifying shares) are at the
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time directly or indirectly owned by such Person and/or another Wholly-Owned
Subsidiary of such Person.
1.2 Other Interpretive Provisions. (a) The meanings of defined terms are
equally applicable to the singular and plural forms of the defined terms.
(b) Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(c) The term "including" is not limiting and means "including without
limitation."
(d) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including"; the words
"to" and "until" each mean "to but excluding", and the word "through" means
"to and including."
(e) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments
shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document, and
(ii) references to any statute or regulation shall be construed as
including all statutory and regulatory provisions amending, replacing,
supplementing or interpreting such statute or regulation.
(f) This Agreement and the other Loan Documents may use several
different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are
cumulative and each shall be performed in accordance with its terms.
(g) This Agreement and the other Loan Documents are the result of
negotiations between and have been reviewed by counsel to the Company and
the Bank and are the work product of all parties. Accordingly, they shall
not be construed against the Bank merely because of the Bank's involvement
in their preparation.
SECTION 2
DESCRIPTION OF TERM LOAN; CONVERSION AND CONTINUATION PROCEDURES
2.1 Term Loan. The Term Loan consists of a term loan in the amount of
$3,500,000, which amount represents the outstanding principal balance on the
date hereof of the term loan made by the Bank to the Company under the Existing
STEP Credit Agreement.
2.2 Loan Procedures.
2.2.1 Various Types of Loans. During any period that the Company is
ineligible to receive funds from STEP or the State of Illinois ceases to
maintain funds on deposit
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with the Bank in an amount at least equal to the then outstanding principal
amount of the Term Loan for the purpose of funding the Company under STEP, the
Term Loan will be, divided into tranches which are either a Base Rate Loan or a
Eurodollar Loan, as the Company shall specify in the related notice of
conversion pursuant to Section 2.2.2 or 2.2.3. Eurodollar Loans having the same
Interest Period are sometimes called a "Group" or collectively "Groups." Base
Rate Loans and Eurodollar Loans may be outstanding at the same time, provided
that not more than three (3) Groups of Eurodollar Loans shall be outstanding at
any one time.
2.2.2 Conversion and Continuation Procedures.
(a) The Company shall give written notice or telephonic notice
(followed immediately by written confirmation thereof) to the Bank of any
conversion or continuation of any portion of the Term Loan to or as a Base
Rate Loan or a Eurodollar Loan not later than (a) in the case of a Base
Rate Loan, 11:00 A.M., Chicago time, on the proposed date of such Base Rate
Loan, and (b) in the case of a Eurodollar Loan, 11:00 A.M., Chicago time,
at least three Business Days prior to the proposed date of such Eurodollar
Loan. Such notice shall be effective upon receipt by the Bank, shall be
irrevocable, and shall specify the date, amount and type of borrowing and,
in the case of a Eurodollar borrowing, the initial Interest Period
therefor. Any conversion shall be on a Business Day. Each Base Rate Loan
shall be in an aggregate amount of at least $100,000 and an integral
multiple of $10,000, and each Eurodollar Loan shall be in an aggregate
amount of at least $1,000,000 and an integral multiple of at least
$500,000.
2.2.3 Conversion and Continuation Procedures. (a) Subject to Section
2.2.1, the Company may, upon irrevocable written notice to the Bank in
accordance with clause (b) below:
(i) elect, as of any Business Day, to convert any Eurodollar Loan
or Base Rate Loan (or any part thereof in an aggregate amount not less
than $1,000,000 or a higher integral multiple of $500,000) into loans
of the other type; or
(ii) elect, as of the last day of the applicable Interest Period,
to continue any Eurodollar Loans having Interest Periods expiring on
such day (or any part thereof in an aggregate amount not less than
$1,000,000 or a higher integral multiple of $500,000) for a new
Interest Period;
provided that after giving effect to any prepayment, conversion or
continuation, the aggregate principal amount of each Group of Eurodollar
Loans shall be at least $1,000,000 and an integral multiple of $500,000.
(b) The Company shall give written or telephonic (followed immediately
by written confirmation thereof) notice to the Bank of each proposed
conversion or continuation not later than (i) in the case of conversion
into Base Rate Loans, 11:00 A.M., Chicago time, on the proposed date of
such conversion and (ii) in the case of conversion into or continuation of
Eurodollar Loans, 11:00 A.M., Chicago time, at least
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three Business Days prior to the proposed date of such conversion or
continuation, specifying in each case:
(i) the proposed date of conversion or continuation;
(ii) the aggregate amount of Base Rate Loans or Eurodollar Loans
to be converted or continued;
(iii) whether the proposed conversion or continuation results in
one or more Base Rate Loans or Eurodollar Loans; and
(iv) in the case of conversion into, or continuation of,
Eurodollar Loans, the duration of the requested Interest Period
therefor.
(c) If upon the expiration of any Interest Period applicable to
Eurodollar Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Eurodollar Loans, the Company shall be
deemed to have elected to convert such Eurodollar Loans into Base Rate
Loans effective on the last day of such Interest Period.
2.2.4 Any conversion of a Eurodollar Loan on a day other than the last
day of an Interest Period therefor shall be subject to Section 7.4.
2.3 Certain Conditions. Notwithstanding any other provision of this
Agreement, the Bank shall not have an obligation to permit the continuation of
or any conversion into any Eurodollar Loan, if an Event of Default or Unmatured
Event of Default exists.
SECTION 3
NOTE; RECORDKEEPING
3.1 Note. The Term Loan shall be evidenced by a promissory note (the
"Note") substantially in the form set forth in Exhibit A, payable to the order
of the Bank in a face principal amount equal to $3,500,000. The unpaid principal
balance of the Term Loan of the Bank shall be paid in full on the Maturity Date.
3.2 Recordkeeping. The Bank shall record in its records, or at its option
on the schedule attached to the Note, the date and amount of the Term Loan made
by the Bank, each repayment or conversion thereof and, in the case of any
Eurodollar Loan, the dates on which each Interest Period for such Eurodollar
Loan shall begin and end. The aggregate unpaid principal amount so recorded
shall be rebuttable presumptive evidence of the principal amount owing and
unpaid on the Note. The failure to so record any such amount or any error in so
recording any such amount shall not, however, limit or otherwise affect the
obligations of the Company hereunder or under the Note to repay the principal
amount of the Term Loan evidenced by the Note together with all interest
accruing thereon.
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SECTION 4
INTEREST
4.1 Interest Rates. The Company promises to pay interest on the unpaid
principal amount of the Term Loan until the Term Loan is paid in full as
follows:
(a) so long as the Company remains eligible to receive funds from STEP
and so long as the State of Illinois maintains funds on deposit with the
Bank in an amount at least equal to the then outstanding principal amount
of the Term Loan for the purpose of funding the Company under STEP at the
interest rates contemplated by STEP, at the STEP Rate; or
(b) during any period that the Company is ineligible to receive funds
from STEP or the State of Illinois ceases to maintain funds on deposit with
the Bank in an amount at least equal to the then outstanding principal
amount of the Term Loan for the purpose of funding the Company under STEP
at the interest rates contemplated by STEP, (i) until the Bank has received
notice from the Company of any conversion under Section 2.2.3 of a portion
of the Term Loan to one or more Eurodollar Loans, at a rate per annum equal
to the Base Rate from time to time in effect plus the Base Rate Margin, and
(ii) from and after the date the Bank has received such a notice, (A) for
each Base Rate Loan, the sum of the Base Rate from time to time in effect
plus the Base Rate Margin from time to time in effect and (B) for each
Eurodollar Loan, at a rate per annum equal to the sum of the Eurodollar
Rate (Reserve Adjusted) applicable to each Interest Period for such
Eurodollar Loan plus the Eurodollar Margin from time to time in effect;
provided that at any time an Event of Default exists the above interest rates
shall be increased by 2% per annum.
4.2 Interest Payment Dates. Accrued interest on the Term Loan (to the
extent calculated at the STEP Rate) and each Base Rate Loan shall be payable in
arrears on the last day of each calendar quarter and at maturity. Accrued
interest on each Eurodollar Loan shall be payable on the last day of each
Interest Period relating to such Eurodollar Loan (and, in the case of a
Eurodollar Loan with a six-month Interest Period, on the three-month anniversary
of the first day of such Interest Period) and at maturity. After maturity, all
accrued interest on the Term Loan shall be payable on demand. All accrued
interest not paid when due shall, to the extent permitted by law, bear interest
from the date due until paid at the Base Rate from time to time in effect plus
the Base Rate Margin from time to time in effect plus 2% per annum.
4.3 Setting and Notice of Eurodollar Rates. The applicable Eurodollar Rate
for each Interest Period shall be determined by the Bank. Each determination of
the applicable Eurodollar Rate by the Bank shall be conclusive and binding upon
the parties hereto, in the absence of demonstrable error. The Bank shall, upon
written request of the Company, deliver to the Company a statement showing the
computations used by the Bank in determining any applicable Eurodollar Rate
hereunder.
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4.4 Computation of Interest. Interest shall be computed for the actual
number of days elapsed on the basis of a year of 360 days. The applicable
interest rate for each Base Rate Loan shall change simultaneously with each
change in the Base Rate.
SECTION 5
PREPAYMENTS
5.1 Prepayments. The Company may from time to time prepay the Term Loan in
whole or in part; provided that the Company shall give the Bank notice thereof
not later than 11:00 A.M., Chicago time, on the day of such prepayment (which
shall be a Business Day), specifying the amount of the Term Loan to be prepaid
and the date and amount of prepayment. Any such partial prepayment shall be in
an amount equal to $100,000 or a higher integral multiple of $10,000. The
Company shall not be entitled to reborrow any portion of the Term Loan which is
repaid or prepaid.
5.2 All Prepayments. Any partial prepayment of a Group of Eurodollar Loans
shall be subject to the proviso to Section 2.2.3(a). Any prepayment of a
Eurodollar Loan on a day other than the last day of an Interest Period therefor
shall include interest on the principal amount being repaid and shall be subject
to Section 7.4.
SECTION 6
MAKING OF PAYMENTS; SETOFF; TAXES
6.1 Making of Payments. All payments of principal of or interest on the
Note shall be made by the Company to the Bank in immediately available funds at
the office specified by the Bank not later than noon, Chicago time, on the date
due; and funds received after that hour shall be deemed to have been received by
the Bank on the following Business Day.
6.2 Application of Certain Payments. Each payment of principal shall be
applied to the Term Loan as the Company shall direct by notice to be received by
the Bank on or before the date of such payment or, in the absence of such
notice, as the Bank shall determine in its discretion. Notwithstanding the
foregoing, after an Event of Default has occurred and is continuing, the Bank
may apply any payments as the Bank shall determine in its sole discretion.
6.3 Due Date Extension. If any payment of principal or interest with
respect to the Term Loan falls due on a day which is not a Business Day, then
such due date shall be extended to the immediately following Business Day
(unless, in the case of a Eurodollar Loan, such immediately following Business
Day is the first Business Day of a calendar month, in which case such due date
shall be the immediately preceding Business Day) and, in the case of principal,
additional interest shall accrue and be payable for the period of any such
extension.
6.4 Setoff. The Company agrees that the Bank has all rights of set-off and
bankers' lien provided by applicable law, and in addition thereto, the Company
agrees that at any time any Event of Default exists, the Bank may apply to the
payment of any obligations of the Company hereunder, whether or not then due,
any and all balances, credits, deposits, accounts or moneys of the Company then
or thereafter with the Bank.
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6.5 Taxes. All payments of principal of, and interest on, the Term Loan and
all other amounts payable hereunder shall be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes and
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, excluding franchise taxes and taxes
imposed on or measured by any Bank's net income or receipts (all non-excluded
items being called "Taxes"). If any withholding or deduction from any payment to
be made by the Company hereunder is required in respect of any Taxes pursuant to
any applicable law, rule or regulation, then the Company will:
(a) pay directly to the relevant authority the full amount required to
be so withheld or deducted;
(b) promptly forward to the Bank an official receipt or other
documentation satisfactory to the Bank evidencing such payment to such
authority; and
(c) pay to the Bank such additional amount or amounts as is necessary
to ensure that the net amount actually received by the Bank will equal the
full amount the Bank would have received had no such withholding or
deduction been required.
Moreover, if any Taxes are directly asserted against the Bank with respect to
any payment received by the Bank hereunder, the Bank may pay such Taxes and the
Company will promptly pay such additional amounts (including any penalty,
interest or expense arising due to any act or omission of the Company) as is
necessary in order that the net amount received by the Bank after the payment of
such Taxes (including any Taxes on such additional amount) shall equal the
amount the Bank would have received had such Taxes not been asserted. If the
Company fails to pay any Taxes when due to the appropriate taxing authority or
fails to remit to the Bank, the required receipts or other required documentary
evidence, the Company shall indemnify the Bank for any incremental Taxes,
interest or penalties that may become payable by the Bank as a result of any
such failure.
SECTION 7
INCREASED COSTS; SPECIAL PROVISIONS FOR EURODOLLAR LOANS
7.1 Increased Costs. (a) If, after the Closing Date, the adoption of, or
any change in, any applicable law, rule or regulation, or any change in the
interpretation or administration of any applicable law, rule or regulation by
any governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Bank (or any
Eurodollar Office of the Bank) with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency:
(i) shall subject the Bank (or any Eurodollar Office of the Bank)
to any tax, duty or other charge with respect to its Eurodollar Loans,
its Note or its obligation to make Eurodollar Loans, or shall change
the basis of taxation of payments to the Bank of the principal of or
interest on its Eurodollar Loans or any other amounts due under this
Agreement in respect of its Eurodollar Loans or its obligation to make
Eurodollar Loans (except for changes in the rate of tax on the
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overall net income of the Bank or its Eurodollar Office imposed by the
jurisdiction in which the Bank's principal executive office or
Eurodollar Office is located);
(ii) shall impose, modify or deem applicable any reserve
(including any reserve imposed by the FRB, but excluding any reserve
included in the determination of interest rates pursuant to Section
4), special deposit or similar requirement against assets of, deposits
with or for the account of, or credit extended by the Bank (or any
Eurodollar Office of the Bank); or
(iii) shall impose on the Bank (or its Eurodollar Office) any
other condition affecting its Eurodollar Loans, its Note or its
obligation to make Eurodollar Loans;
and the result of any of the foregoing is to increase the cost to (or to impose
a cost on) the Bank (or any Eurodollar Office of the Bank) of making or
maintaining any Eurodollar Loan, or to reduce the amount of any sum received or
receivable by the Bank (or its Eurodollar Office) under this Agreement or under
its Note with respect thereto, then upon demand by the Bank (which demand shall
be accompanied by a statement setting forth the basis for such demand and a
calculation of the amount thereof in reasonable detail), the Company shall pay
directly to the Bank such additional amount as will compensate the Bank for such
increased cost or such reduction.
(b) If the Bank shall determine that the adoption or phase- in of, any
applicable law, rule or regulation regarding capital adequacy or any change
therein, or any change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by the Bank or any
Person controlling the Bank with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such authority, central
bank or comparable agency, has or would have the effect of reducing the rate of
return on the Bank's or such controlling Person's capital as a consequence of
the Bank's obligations hereunder to a level below that which the Bank or such
controlling Person could have achieved but for such adoption, phase-in, change
or compliance (taking into consideration the Bank's or such controlling Person's
policies with respect to capital adequacy) by an amount deemed by the Bank or
such controlling Person to be material, then from time to time, upon demand by
the Bank (which demand shall be accompanied by a statement setting forth the
basis for such demand and a calculation of the amount thereof in reasonable
detail), the Company shall pay to the Bank such additional amount as will
compensate the Bank or such controlling Person for such reduction.
7.2 Basis for Determining Interest Rate Inadequate or Unfair. If with
respect to any Interest Period:
(a) deposits in U.S. dollars (in the applicable amounts) are not being
offered to the Bank in the interbank eurodollar market for such Interest
Period, or the Bank otherwise determines (which determination shall be
binding and conclusive on the Company) that by reason of circumstances
affecting the interbank eurodollar market
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adequate and reasonable means do not exist for ascertaining the applicable
Eurodollar Rate; or
(b) due to economic or other conditions affecting generally the
eurodollar market which are not due to any act, omission, event or
determination within the direct control of the Bank, the Eurodollar Rate
(Reserve Adjusted) as determined by the Bank will not adequately and fairly
reflect the cost to the Bank of maintaining or funding Eurodollar Loans for
such Interest Period or that the making or funding of Eurodollar Loans has
become impracticable as a result of an event occurring after the date of
this Agreement;
then the Bank shall promptly notify the Company and, so long as such
circumstances shall continue, (i) the Bank shall be under no obligation to make
or convert into Eurodollar Loans and (ii) on the last day of the current
Interest Period for each Eurodollar Loan, such Eurodollar Loan shall, unless
then repaid in full, automatically convert to a Base Rate Loan.
7.3 Changes in Law Rendering Eurodollar Loans Unlawful. If any change in
(including the adoption of any new) applicable law or regulation, or any change
in the interpretation of any applicable law or regulation by any governmental or
other regulatory body charged with the administration thereof, should make it
(or in the good faith judgment of the Bank cause a substantial question as to
whether it is) unlawful for the Bank to make, maintain or fund Eurodollar Loans,
then the Bank shall promptly notify the Company and, so long as such
circumstances shall continue, (a) the Bank shall have no obligation to convert
Base Rate Loans into or continue Eurodollar Loans as, Eurodollar Loans and (b)
on the last day of the current Interest Period for each Eurodollar Loan then
outstanding (or, in any event, on such earlier date as may be required by the
relevant law, regulation or interpretation), such Eurodollar Loan shall, unless
then repaid in full, automatically convert to a Base Rate Loan. Each Base Rate
Loan made by the Bank which, but for the circumstances described in the
foregoing sentence, would be a Eurodollar Loan (an "Affected Loan") shall remain
outstanding for the same period as the Group of Eurodollar Loans of which such
Affected Loan would be a part absent such circumstances.
7.4 Funding Losses. The Company hereby agrees that upon written demand by
the Bank (which demand shall be accompanied by a statement setting forth the
basis for the amount being claimed), the Company will indemnify the Bank against
any net loss or expense that the Bank may sustain or incur (including any net
loss or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by the Bank to fund or maintain any Eurodollar
Loan), as reasonably determined by the Bank, as a result of (a) any payment,
prepayment or conversion of any Eurodollar Loan of the Bank on a date other than
the last day of an Interest Period for such Eurodollar Loan (including any
conversion pursuant to Section 7.3) or (b) any failure of the Company to convert
or continue any Eurodollar Loan on a date specified therefor in a notice of
conversion or continuation pursuant to this Agreement. For this purpose, all
notices to the Bank pursuant to this Agreement shall be deemed to be
irrevocable.
7.5 Right of the Bank to Fund through Other Offices. The Bank may, if it so
elects, fulfill its commitment as to any Eurodollar Loan by causing a foreign
branch or Affiliate of the
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Bank to make such Eurodollar Loan; provided that in such event for the purposes
of this Agreement such Eurodollar Loan shall be deemed to have been made by the
Bank and the obligation of the Company to repay such Eurodollar Loan shall
nevertheless be to the Bank and shall be deemed held by it, to the extent of
such Eurodollar Loan, for the account of such branch or Affiliate.
7.6 Discretion of the Bank as to Manner of Funding. Notwithstanding any
provision of this Agreement to the contrary, the Bank shall be entitled to fund
and maintain its funding of all or any part of the Term Loan in any manner it
sees fit, it being understood, however, that for the purposes of this Agreement
all determinations hereunder shall be made as if the Bank had actually funded
and maintained each Eurodollar Loan during each Interest Period for such
Eurodollar Loan through the purchase of deposits having a maturity corresponding
to such Interest Period and bearing an interest rate equal to the Eurodollar
Rate for such Interest Period.
7.7 Mitigation of Circumstances. The Bank shall promptly notify the Company
of any event of which it has knowledge which will result in, and will use
reasonable commercial efforts available to it (and not, in the Bank's sole
judgment, otherwise disadvantageous to the Bank) to mitigate or avoid, (i) any
obligation by the Company to pay any amount pursuant to Section 6.5 or 7.1 or
(ii) the occurrence of any circumstances described in Section 7.2 or 7.3 (and,
if the Bank has given notice of any such event described in clause (i) or (ii)
above and thereafter such event ceases to exist, the Bank shall promptly so
notify the Company). Without limiting the foregoing, the Bank will designate a
different funding office if such designation will avoid (or reduce the cost to
the Company of) any event described in clause (i) or (ii) of the preceding
sentence and such designation will not, in the Bank's sole judgment, be
otherwise disadvantageous to the Bank. The Bank shall not request that the
Company pay any amount pursuant to Section 6.5 or 7.1, or advise the Company as
to its determination under Section 7.2(b), unless it is generally making similar
requests of, or determinations with respect to, other borrowers similarly
situated, and the Bank agrees to use a reasonable basis for calculating such
amounts and making such determinations.
7.8 Conclusiveness of Statements; Survival of Provisions. Determinations
and statements of the Bank pursuant to Section 7.1, 7.2, 7.3 or 7.4 shall be
conclusive absent demonstrable error. The Bank may use reasonable averaging and
attribution methods in determining compensation under Sections 7.1 and 7.4, and
the provisions of such Sections shall survive repayment of the Term Loan,
cancellation of the Note and termination of this Agreement.
SECTION 8
REPRESENTATIONS AND WARRANTIES
To induce the Bank to enter into this Agreement, the Company represents and
warrants to the Bank that:
8.1 Organization. The Company is a corporation duly incorporated, validly
existing and in good standing under the laws of Delaware. Each Subsidiary is
validly existing and in good standing under the laws of the jurisdiction of its
organization. The Company and each
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other Loan Party has all requisite corporate power to own its property and
conduct its business as now conducted and as presently contemplated. The Company
is in good standing and is duly qualified to do business in the States of
Arizona, California, Colorado, Illinois, Indiana and Texas, the Commonwealth of
Massachusetts and each other jurisdiction where, because of the nature of its
activities or properties, such qualification is required, except for such
jurisdictions where the failure so to qualify would not have a Material Adverse
Effect.
8.2 Authorization; No Conflict. Each of the Company and each other Loan
Party is duly authorized to execute and deliver each Loan Document to which it
is a party, the Company is duly authorized to borrow monies under this Agreement
and each of the Company and each other Loan Party is and will continue to be
duly authorized to perform its obligations under each Loan Document to which it
is a party. The execution, delivery and performance by the Company of this
Agreement and by each of the Company and each other Loan Party of each Loan
Document to which it is a party, and the borrowings by the Company under this
Agreement, do not and will not (i) require any consent or approval of any
governmental agency or authority that has not been obtained or (ii) conflict
with (a) any provision of law, (b) the articles of incorporation or by-laws of
the Company or any other Loan Party, (c) any agreement, indenture, instrument or
other document binding upon the Company or any other Loan Party or any of their
respective properties or assets or (d) any court or administrative order or
decree applicable to the Company, and do not and will not require, or result in,
the creation or imposition of any Lien on any asset of the Company or any other
Loan Party.
8.3 Validity and Binding Nature. Each of this Agreement and each other Loan
Document to which the Company or any other Loan Party is a party is the legal,
valid and binding obligation of such Person, enforceable against such Person in
accordance with its terms.
8.4 Financial Condition. The audited consolidated financial statements of
the Company and its Subsidiaries as of and for the fiscal years ended September
30, 1999 and September 30, 2000, and unaudited consolidated financial statements
of the Company for the portion of fiscal year 2001 up to and including March 31,
2001, copies of which have been furnished prior to the Closing Date to the Bank,
have been prepared in accordance with GAAP and fairly present the consolidated
financial condition of the Company and its Subsidiaries as of such dates and the
results of their operations for the periods then ended. Except as reflected and
accrued for or reserved against in the Company's consolidated financial
statements, or as disclosed in the notes thereto, neither the Company nor any
Subsidiary has any material liabilities, known or unknown, matured or unmatured,
absolute, contingent or otherwise which might reasonably be expected to have a
Material Adverse Effect.
8.5 No Material Adverse Change. Since September 30, 2000, there has been no
event that has had or might reasonably be expected to have a Material Adverse
Effect. Since September 30, 2000, the Company has not (i) paid or declared any
dividend on or in respect of any shares of any class of capital stock of the
Company (other than dividends payable solely in shares of common stock of the
Company), (ii) purchased, redeemed or otherwise retired any shares of any class
of capital stock of the Company, directly or indirectly through a Subsidiary or
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otherwise, (iii) returned capital to its shareholders as such, or (iv) made any
other distribution on or in respect of any shares of any class of capital stock
of the Company.
8.6 Litigation and Contingent Liabilities. Except as set forth in Schedule
8.6, no litigation (including derivative actions), arbitration proceeding or
governmental investigation or proceeding is pending or, to the Company's
knowledge, threatened against the Company or any Subsidiary which might
reasonably be expected to have a Material Adverse Effect. Other than any
liability incident to such litigation or proceedings, neither the Company nor
any Subsidiary has any contingent liabilities not listed on Schedule 8.6 or
permitted by Section 9.7 which has had or might reasonably be expected to have a
Material Adverse Effect.
8.7 No Materially Adverse Contracts, etc. Neither the Company nor any of
its Subsidiaries is subject to any charter, corporate or, to the Company's
knowledge, other legal restriction, or any judgment, decree, order, rule or
regulation that has or is expected in the future to have a Material Adverse
Effect. Neither the Company nor any of its Subsidiaries is a party to any
contract or agreement that has or is expected to have any Material Adverse
Effect.
8.8 Compliance. Neither the Company nor any of its Subsidiaries is in
violation of any provision of its articles of incorporation, bylaws, or any
agreement or instrument to which it may be subject or by which it or any of its
properties may be bound or any statute, license, rule or regulation applicable
to it, or, to the Company's knowledge, any decree, order or judgment, in any of
the foregoing cases in a manner that could result in the imposition of
substantial penalties or result in a Material Adverse Effect. No contract or
other agreement to which the Company or any Subsidiary is a party has been
terminated if such termination could result in a Material Adverse Effect.
8.9 Taxes. Each of the Company and each Subsidiary has filed all tax
returns and reports (federal, state, local, foreign and other applicable tax
returns) required to be filed by or on behalf of it and has paid or caused to be
paid all taxes and other governmental charges due for the periods covered
thereby, including interest and penalties, other than any such taxes or charges
(i) for which a timely and proper extension has been obtained and (ii) that are
being contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained to the extent required by GAAP, unless
and until any Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors. The Company has set aside reserves on
its balance sheet for the payment of all liabilities for all taxes (whether or
not disputed) of the Company accrued through the date of such balance sheet to
the extent required by GAAP.
8.10 Information. All information heretofore or contemporaneously with this
Agreement furnished in writing by the Company or any other Loan Party to the
Bank for purposes of or in connection with this Agreement and the transactions
contemplated hereby is, and all written information hereafter furnished by or on
behalf of the Company or any other Loan Party to the Bank pursuant hereto or in
connection herewith will be, true and accurate in every material respect on the
date as of which such information is dated or certified, and none of such
information is or will be incomplete by omitting to state any material fact
necessary to make such information not misleading in light of the circumstances
under which made (it being
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recognized by the Bank that any projections and forecasts provided by the
Company are based on good faith estimates and assumptions believed by the
Company to be reasonable as of the date of the applicable projections or
assumptions and that actual results during the period or periods covered by any
such projections and forecasts may differ from projected or forecasted results).
8.11 Solvency. On the Closing Date, and immediately prior to and after
giving effect to the transactions contemplated by this Agreement (i) the
Company's and each other Loan Party's assets will exceed its liabilities and
(ii) each of the Company and each other Loan Party will be solvent, will be able
to pay its debts as they mature, will own property with fair saleable value
greater than the amount required to pay its debts and will have capital
sufficient to carry on its business as then constituted.
8.12 No Default. No Event of Default or Unmatured Event of Default exists
or would result from the incurring by the Company of any Debt under this
Agreement or under any other Loan Document.
8.13 Use of Proceeds. The Company shall use the proceeds of the Term Loan
solely for the purposes permitted under the Existing STEP Credit Agreement,
working capital and for other general corporate purposes.
8.14 Subsidiaries. Except as set forth on Schedule 8.14 hereto, the Company
has no Subsidiaries.
8.15 Ownership of Properties; Liens. Except as permitted pursuant to
Section 9.8 and subject to Section 8.16, each of the Company and each Subsidiary
owns good title to all of its properties and assets, tangible and intangible, of
any nature whatsoever (including patents, trademarks, trade names, service marks
and copyrights), free and clear of all Liens, charges and claims (including
infringement claims with respect to patents, trademarks, service marks,
copyrights and the like).
8.16 Intellectual Property. To the best of the Company's knowledge after
due inquiry, and except as set forth in Schedule 8.16, the Company and each of
its Subsidiaries owns and possesses or has a license or other right to use all
such patents, patent rights, trademarks, trademark rights, trade names, trade
name rights, service marks, service xxxx rights and copyrights as are necessary
for the conduct of the business of the Company and its Subsidiaries as conducted
on the Closing Date, without any infringement upon rights of others which might
reasonably be expected to have a Material Adverse Effect.
8.17 Insurance. Set forth on Schedule 8.17 is a complete and accurate
summary of the property and casualty insurance program of the Company and its
Subsidiaries as of the Closing Date (including the names of all insurers, policy
numbers, expiration dates, amounts and types of coverage, annual premiums,
exclusions, deductibles, self-insured retention and a description in reasonable
detail of any self-insurance program, retrospective rating plan, fronting
arrangement or other risk assumption arrangement involving the Company or any
Subsidiary).
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8.18 Investment Company Act; Public Utility Holding Company Act. Neither
the Company nor any Subsidiary is an "investment company" or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940. Neither the Company nor any Subsidiary is a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935.
8.19 Regulations T, U and X. None of the transactions contemplated by this
Agreement or any of the other Loan Documents, including the use of the proceeds
of the Term Loan, will violate or result in a violation of any regulation issued
pursuant to Section 7 of the Securities Exchange Act of 1934, as amended,
including, without limitation, Regulations T, U and X and the Company is not
engaged principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock.
8.20 Securities Matters. The making of the Term Loan, the application of
the proceeds and repayment thereof by the Company and the consummation of the
transactions contemplated by this Agreement and the other Loan Documents will
not violate any provision of any federal or state securities statutes, rules or
regulations, or any order issued by the Securities and Exchange Commission
(collectively, the "Securities Laws).
8.21 Pension and Welfare Plans. (a) Except as set forth in Schedule 8.21,
during the twelve-consecutive-month period prior to the date of the execution
and delivery of this Agreement, (i) no steps have been taken to terminate any
Pension Plan and (ii) no contribution failure has occurred with respect to any
Pension Plan sufficient to give rise to a Lien under Section 302(f) of ERISA. No
condition exists or event or transaction has occurred with respect to any
Pension Plan which could result in the incurrence by the Company of any material
liability, fine or penalty. The Company has no contingent liability with respect
to any post-retirement benefit under a Welfare Plan, other than liability for
continuation coverage described in Part 6 of Subtitle B of Title I of ERISA.
(b) Except as set forth in Schedule 8.21, all contributions (if any) have
been made to any Multiemployer Pension Plan that are required to be made by the
Company or any other member of the Controlled Group under the terms of the plan
or of any collective bargaining agreement or by applicable law; neither the
Company nor any member of the Controlled Group has withdrawn or partially
withdrawn from any Multiemployer Pension Plan, incurred any withdrawal liability
with respect to any such plan, received notice of any claim or demand for
withdrawal liability or partial withdrawal liability from any such plan, and no
condition has occurred which, if continued, might result in a withdrawal or
partial withdrawal from any such plan; and neither the Company nor any member of
the Controlled Group has received any notice that any Multiemployer Pension Plan
is in reorganization, that increased contributions may be required to avoid a
reduction in plan benefits or the imposition of any excise tax, that any such
plan is or has been funded at a rate less than that required under Section 412
of the Code, that any such plan is or may be terminated, or that any such plan
is or may become insolvent.
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8.22 Environmental Matters.
(a) To the best of the Company's knowledge based upon a good faith
review, neither the Company nor any Subsidiary, nor any operator of the
Company's or any Subsidiary's properties, is in violation, or alleged
violation, of any judgment, decree, order, law, permit, license, rule or
regulation pertaining to environmental matters, including those arising
under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 ("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986
or any other Environmental Law which individually or in the aggregate might
reasonably be expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary has received notice from
any third party, including any federal, state or local governmental
authority (i) that any one of them has been identified by the United States
Environmental Protection Agency as a potentially responsible party under
CERCLA with respect to a site listed on the National Priorities List, 40
C.F.R. Part 300 Appendix B, (ii) that any hazardous waste, as defined by 42
U.S.C.ss.6903(5), any hazardous substance as defined by 42
U.S.C.ss.9601(14), any pollutant or contaminant as defined by 42
U.S.C.ss.9601 (33) or any toxic substance, oil or hazardous material or
other chemical or substance regulated by any Environmental Law (all of the
foregoing, "Hazardous Substances"), which any one of them has generated,
transported or disposed of has been found at any site at which a federal,
state or local agency or other third party has conducted a remedial
investigation, removal or other response action pursuant to any
Environmental Law, (iii) that the Company or any Subsidiary must conduct a
remedial investigation, removal, response action or other activity pursuant
to any Environmental Law or (iv) of any Environmental Claim.
(c) To the best of the Company's knowledge, except as set forth on
Schedule 8.22, (i) no portion of any real property or other assets of the
Company or any Subsidiary has been used for the handling, processing,
storage or disposal of Hazardous Substances except in accordance in all
material respects with applicable Environmental Laws, and no underground
tank or other underground storage receptacle for Hazardous Substances is
located on such properties, (ii) in the course of any activities conducted
by the Company, any Subsidiary or the operators of any real property of the
Company or any Subsidiary, no Hazardous Substances have been generated or
are being used on such properties except in accordance in all material
respects with applicable Environmental Laws, (iii) there have been no
Releases or threatened Releases of Hazardous Substances on, upon, into or
from any real property or other assets of the Company or any Subsidiary,
which might individually or in the aggregate reasonably be expected to have
a Material Adverse Effect, (iv) there have been no Releases on, upon, from
or into any real property in the vicinity of any real property or other
assets of the Company or any Subsidiary which, through soil or groundwater
contamination, may have come to be located on, upon or into any real
property or other assets of the Company or any Subsidiary, and which might
reasonably be expected to have a Material Adverse Effect and (v) any
Hazardous Substances generated by the Company and its Subsidiaries have
been transported offsite only by properly licensed carriers and delivered
only to treatment or disposal facilities maintaining valid permits as
required under applicable Environmental Laws, which
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transporters and facilities have been and are operating in compliance in
all material respects with such permits and applicable Environmental Laws.
8.23 Labor Matters. Neither the Company nor any Subsidiary is subject to
any labor or collective bargaining agreement. There are no existing or
threatened strikes, lockouts or other labor disputes involving the Company or
any Subsidiary that singly or in the aggregate might reasonably be expected to
have a Material Adverse Effect. Hours worked by and payment made to employees of
the Company and its Subsidiaries are not in violation of the Fair Labor
Standards Act or any other applicable law, rule or regulation dealing with such
matters.
8.24 Disclosure. None of this Agreement or any of the other Loan Documents
contains any untrue statement of a material fact or omits to state a material
fact (known to the Company or any of its Subsidiaries in the case of any
document or information not furnished by it or any of its Subsidiaries)
necessary in order to make the statements herein or therein not misleading.
There is no fact known to the Company or any of its Subsidiaries which
materially adversely affects, or which is reasonably likely in the future to
materially adversely affect, the business, assets, financial condition or
prospects of the Company or any of its Subsidiaries, exclusive of effects
resulting from changes in general economic conditions, legal standards or
regulatory conditions.
8.25 Survival of Warranties. All representations contained in this
Agreement and the other Loan Documents survive the execution and delivery of
this Agreement.
SECTION 9
COVENANTS
Until the Maturity Date and thereafter until all obligations of the Company
hereunder and under the other Loan Documents are paid in full, the Company
agrees that, unless at any time the Bank shall otherwise expressly consent in
writing, it will:
9.1 Reports, Certificates and Other Information. Furnish to the Bank:
9.1.1 Annual Report. Promptly when available and in any event within
90 days after the close of each Fiscal Year a copy of the annual audit report of
the Company and its Subsidiaries for such Fiscal Year, including therein
consolidated balance sheets and statements of earnings and cash flows of the
Company and its Subsidiaries as at the end of such Fiscal Year, certified
without qualification by PriceWaterhouseCoopers LLP or other independent
auditors of recognized standing selected by the Company and reasonably
acceptable to the Bank, together with a written statement from such accountants
to the effect that in making the examination necessary for the signing of such
annual audit report by such accountants, nothing came to their attention that
caused them to believe that the Company was not in compliance with any provision
of Section 9.6, 9.7, 9.9 or 9.10 of this Agreement insofar as such provision
relates to accounting matters or, if something has come to their attention that
caused them to believe that the Company was not in compliance with any such
provision, describing such non-compliance in reasonable detail.
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9.1.2 Interim Reports. Promptly when available and in any event within
45 days after the end of each Fiscal Quarter (except the last Fiscal Quarter of
each Fiscal Year), consolidated balance sheets of the Company and its
Subsidiaries as of the end of such Fiscal Quarter, together with consolidated
statements of earnings for each Fiscal Quarter in such Fiscal Year and cash
flows for the period beginning with the first day of such Fiscal Year and ending
on the last day of such Fiscal Quarter, together with a comparison with the
corresponding period of the previous Fiscal Year.
9.1.3 Compliance Certificates. Contemporaneously with the furnishing
of a copy of each annual audit report pursuant to Section 9.1.1 and each set of
quarterly statements pursuant to Section 9.1.2, a duly completed compliance
certificate in the form of Exhibit B, with appropriate insertions, dated the
date of such annual report or such quarterly statements and signed by the Chief
Financial Officer or Treasurer of the Company, containing a computation of each
of the financial ratios and restrictions set forth in 9.6 and to the effect that
such officer has not become aware of any Event of Default or Unmatured Event of
Default that has occurred and is continuing or, if there is any such event,
describing it and the steps, if any, being taken to cure it.
9.1.4 Reports to the SEC and to Shareholders. Promptly upon the filing
or sending thereof, copies of all regular, periodic or special reports of the
Company or any Subsidiary filed with the SEC; copies of all registration
statements of the Company or any Subsidiary filed with the SEC (other than on
Form S-8); and copies of all proxy statements or other communications made to
security holders generally.
9.1.5 Notice of Default, Litigation and ERISA Matters. Promptly upon
becoming aware of any of the following, written notice describing the same and
the steps being taken by the Company or the Subsidiary affected thereby with
respect thereto:
(a) the occurrence of an Event of Default or an Unmatured Event of
Default;
(b) any litigation, arbitration or governmental investigation or
proceeding not previously disclosed by the Company to the Bank which has
been instituted or, to the knowledge of the Company, is threatened against
the Company or any Subsidiary or to which any of the properties of any
thereof is subject which might reasonably be expected to have a Material
Adverse Effect;
(c) the institution of any steps by any member of the Controlled Group
or any other Person to terminate any Pension Plan, or the failure of any
member of the Controlled Group to make a required contribution to any
Pension Plan (if such failure is sufficient to give rise to a Lien under
Section 302(f) of ERISA) or to any Multiemployer Pension Plan, or the
taking of any action with respect to a Pension Plan which could result in
the requirement that the Company furnish a bond or other security to the
PBGC or such Pension Plan, or the occurrence of any event with respect to
any Pension Plan or Multiemployer Pension Plan which could result in the
incurrence by any member of the Controlled Group of any material liability,
fine or penalty (including any claim or demand for withdrawal liability or
partial withdrawal from any Multiemployer Pension
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Plan), or any material increase in the contingent liability of the Company
with respect to any post-retirement welfare plan benefit, or any notice
that any Multiemployer Pension Plan is in reorganization, that increased
contributions may be required to avoid a reduction in plan benefits or the
imposition of an excise tax, that any such Pension Plan or Multiemployer
Pension Plan is or has been funded at a rate less than that required under
Section 412 of the Code, that any such Pension Plan or Multiemployer
Pension Plan is or may be terminated, or that any such Pension Plan or
Multiemployer Pension Plan is or may become insolvent;
(d) any cancellation or material change in any insurance maintained by
the Company or any Subsidiary; or
(e) any other event (including (i) any violation of any Environmental
Law or the assertion of any Environmental Claim or (ii) the enactment or
effectiveness of any law, rule or regulation) which might reasonably be
expected to have a Material Adverse Effect.
9.1.6 Management Reports. Promptly following receipt by the Company,
copies of all detailed management reports submitted to the Company by
independent auditors in connection with each annual or interim audit made by
such auditors of the books of the Company.
9.1.7 Projections. As soon as practicable, and in any event within 45
days after the commencement of each Fiscal Year, financial projections for the
Company and its Subsidiaries for such Fiscal Year and the next two succeeding
Fiscal Years prepared in a manner consistent with the projections delivered by
the Company to the Bank prior to the Closing Date or otherwise in a manner
reasonably satisfactory to the Bank, accompanied by a certificate of the Chief
Financial Officer or Treasurer of the Company on behalf of the Company to the
effect that (i) such projections were prepared by the Company in good faith,
(ii) the Company has a reasonable basis for the assumptions contained in such
projections and (iii) such projections have been prepared in accordance with
such assumptions.
9.1.8 Debt Notices. Promptly following receipt by the Company or any
of its Subsidiaries, copies of any material notices (including notices of
default or acceleration) received from any holder or trustee of, under or with
respect to any Debt of the Company or such Subsidiary.
9.1.9 Other Information. Promptly from time to time, such other
information concerning the Company and its Subsidiaries as the Bank may
reasonably request.
9.2 Books, Records and Inspections. Keep, and cause each Subsidiary to
keep, its books and records in accordance with sound business practices
sufficient to allow the preparation of financial statements in accordance with
GAAP; permit, and cause each Subsidiary to permit, the Bank or any
representative thereof to inspect the properties and operations of the Company
or such Subsidiary; and permit, and cause each Subsidiary to permit, at any
reasonable time and with reasonable notice (or at any time without notice if an
Event of Default exists), the Bank or
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any representative thereof to visit any or all of its offices, to discuss its
financial matters with its officers and its independent auditors (and the
Company hereby authorizes such independent auditors to discuss such financial
matters with the Bank or any representative thereof), and to examine (and, at
the expense of the Company or the applicable Subsidiary, photocopy extracts
from) any of its books or other records. All such inspections or audits by the
Bank if an Event of Default exists shall be at the Company's expense.
9.3 Compliance with Laws; Payment of Taxes and Liabilities. (a) Comply, and
cause each Subsidiary to comply, in all material respects with all applicable
laws, rules, regulations, decrees, orders, judgments, licenses and permits,
except where failure to comply could not reasonably be expected to have a
Material Adverse Effect; and (b) pay, and cause each Subsidiary to pay, prior to
delinquency, all taxes and other governmental charges against it or any of its
property, as well as claims of any kind which, if unpaid, might become a Lien on
any of its property; provided that the foregoing shall not require the Company
or any Subsidiary to pay any such tax or charge so long as it shall contest the
validity thereof in good faith by appropriate proceedings and shall set aside on
its books reserves with respect thereto to the extent required by GAAP.
9.4 Maintenance of Property; Insurance.
(a) Keep, and cause each Subsidiary to keep, all property useful and
necessary in the business of the Company or such Subsidiary in good working
order and condition, ordinary wear and tear excepted.
(b) Maintain, and cause each Subsidiary to maintain, with responsible
insurance companies, such insurance as may be required by any law or
governmental regulation or court decree or order applicable to it and such
other insurance, to such extent and against such hazards and liabilities,
as is customarily maintained by companies similarly situated, but which
shall insure against all risks and liabilities of the type identified on
Schedule 8.17 and shall have insured amounts no less than, and deductibles
no higher than, those set forth on such schedule; and, upon request of the
Bank, furnish to the Bank a certificate setting forth in reasonable detail
the nature and extent of all insurance maintained by the Company and its
Subsidiaries.
9.5 Maintenance of Existence, etc. Maintain and preserve, and (subject to
Section 9.2) cause each Subsidiary to maintain and preserve, (a) its existence
and good standing in the jurisdiction of its organization and (b) its
qualification to do business and good standing in each jurisdiction where the
nature of its business makes such qualification necessary (except in those
instances in which the failure to be qualified or in good standing does not have
a Material Adverse Effect).
9.6 Financial Covenants.
9.6.1 Leverage Ratio. Not permit the Leverage Ratio on the last day of
each Fiscal Quarter to be greater than 2.25 to 1.00.
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9.6.2 Debt Service Coverage Ratio. Not permit the Debt Service
Coverage Ratio on the last day of each Fiscal Quarter to be less than 3.50
to 1.00.
9.6.3 Minimum Net Worth. Not permit Net Worth as of the last day of
(i) the Fiscal Quarter ending June 30, 2001 to be less than the sum of (A)
$104,459,000 plus (B) 50% of the consolidated net income, exclusive of
losses, of the Company and its Subsidiaries for each of the two Fiscal
Quarters ending June 30, 2001 and (ii) any Fiscal Quarter thereafter to be
less than the sum of (A) the amount required hereunder for the last day of
immediately preceding Fiscal Quarter plus (B) 50% of the consolidated net
income, exclusive of losses, of the Company and its Subsidiaries for such
Fiscal Quarter.
9.7 Limitations on Debt. Not, and not permit any Subsidiary to, create,
incur, assume or suffer to exist any Debt, except:
(a) obligations under the Credit Agreement or under this Agreement and
the other Loan Documents;
(b) Debt secured by Liens permitted by Section 9.8(d), and extensions,
renewals and refinancings thereof; provided that the aggregate amount of
all such Debt at any time outstanding shall not exceed $10,000,000;
(c) Debt of Guarantor Subsidiaries to the Company;
(d) unsecured Debt of the Company to Subsidiaries;
(e) unsecured subordinated Debt of the Company (other than to
Subsidiaries) in an aggregate amount not to exceed $100,000,000 at any time
outstanding which has subordination terms, covenants, pricing and other
terms and conditions which have been approved in writing by the Bank in
advance of the incurrence thereof, which approval shall not be unreasonably
withheld so long as (1) such Debt matures after all obligations under this
Agreement and the other Loan Documents have matured and become due and
payable in full, (2) the subordination terms provide that no payment shall
be made on such Debt, and no enforcement or collection action shall be
taken by the holder of such Debt, if any Event of Default exists and is
continuing under this Agreement and are otherwise consistent with then
prevailing subordination terms and conditions, (3) the covenants and events
of default with respect to such Debt are less restrictive than those
contained in this Agreement and the other Loan Documents and (4) the
pricing and other terms and conditions of such Debt are consistent with
then prevailing market terms applicable to Debt of such character and type;
(f) other senior unsecured Debt of the Company (other than to
Subsidiaries) or of any Subsidiary (other than to the Company or any
Subsidiary) in an aggregate amount not to exceed $10,000,000 at any time
outstanding on terms and conditions which are approved in writing by the
Bank in advance of the incurrence thereof, which approval shall not be
unreasonably withheld so long as (1) such Debt matures after all
obligations under the Credit Agreement have matured and become due and
payable in full, (2) the
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covenants and events of default with respect to such Debt are not more
restrictive than those contained in this Agreement and the other Loan
Documents and (3) the pricing and other terms and conditions of such Debt
are consistent with then prevailing market terms applicable to Debt of such
character and type;
(g) Mortgage Debt of the Company (other than to Subsidiaries) or of
any Subsidiary (other than to the Company or any Subsidiary) in an
aggregate amount not to exceed $25,000,000 at any time outstanding on terms
and conditions which are approved in writing by the Bank in advance of the
incurrence thereof, which approval shall not be unreasonably withheld so
long as the pricing and other terms and conditions of such Debt are
consistent with then prevailing market terms applicable to Debt of such
character and type;
(h) Hedging Obligations incurred for bona fide hedging purposes and
not for speculation; and
(i) Debt described on Schedule 9.7 and any extension, renewal or
refinancing thereof so long as the principal amount thereof is not
increased.
9.8 Liens. Not, and not permit any Subsidiary to, create or permit to exist
any Lien on any of its real or personal properties, assets or rights of
whatsoever nature (whether now owned or hereafter acquired), except:
(a) Liens for taxes or other governmental charges not at the time
delinquent or thereafter payable without penalty or being contested in good
faith by appropriate proceedings and, in each case, for which it maintains
reserves to the extent required by GAAP;
(b) Liens arising in the ordinary course of business (such as (i)
Liens of carriers, warehousemen, mechanics and materialmen and other
similar Liens imposed by law and (ii) Liens incurred in connection with
worker's compensation, unemployment compensation and other types of social
security (excluding Liens arising under ERISA) or in connection with surety
bonds, bids, performance bonds and similar obligations) for sums not
overdue or being contested in good faith by appropriate proceedings and not
involving any deposits or advances or borrowed money or the deferred
purchase price of property or services and, in each case, for which it
maintains reserves to the extent required by GAAP;
(c) Liens described on Schedule 9.8;
(d) subject to the limitation set forth in Section 9.7(b), (i) Liens
arising in connection with Capital Leases (and attaching only to the
property being leased), (ii) Liens existing on property at the time of the
acquisition thereof by the Company or any Subsidiary (and not created in
contemplation of such acquisition) and (iii) Liens that constitute purchase
money security interests on any property securing debt incurred for the
purpose of financing all (but not greater than the cost thereof) or any
part of the cost
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of acquiring such property, provided that any such Lien attaches to such
property within 60 days of the acquisition thereof and attaches solely to
the property so acquired;
(e) attachments, levied judgments and other similar Liens arising in
connection with court proceedings with respect to which no Event of Default
would exist under Section 11.1.8 or 11.1.9;
(f) easements, rights of way, restrictions, minor defects or
irregularities in title and other similar Liens not interfering in any
material respect with the ordinary conduct of the business of the Company
or any Subsidiary;
(g) subject to the limitations set forth in Section 9.7(g), Mortgage
Liens; and
(h) other Liens, in addition to the Liens listed above, provided that
the aggregate amount of all Debt or other obligations secured thereby at
any time outstanding shall not exceed $500,000.
9.9 Operating Leases. Not permit the aggregate amount of all rental
payments under Operating Leases other than those described on Schedule 9.9 made
(or scheduled to be made) by the Company and its Subsidiaries (on a consolidated
basis) to exceed $5,000,000 in any Fiscal Year.
9.10 Restricted Payments. Not, and not permit any Subsidiary to, (a) make
any dividends or distributions to any of its shareholders (other than dividends
and distributions in the form of its own capital stock) or purchase or redeem
any of its capital stock or other equity interests or any warrants, options or
other rights in respect thereof, except that (i) any Subsidiary may make
dividends or distributions to the Company or to a Wholly-Owned Subsidiary and
(ii) so long as no Event of Default or Unmatured Event of Default exists or
results therefrom, the Company may make dividends and distributions to its
shareholders and may purchase or redeem its capital stock, other equity
interests, warrants, options and other rights in respect thereof so long as the
aggregate amount paid in respect of such dividends, distributions, purchases and
redemptions from the Closing Date through the date such dividends,
distributions, purchases and redemptions are made does not exceed $10,000,000
plus fifty percent (50%) of the consolidated net income of the Company and its
Subsidiaries for the period commencing December 31, 2000 through the date such
dividends, distributions, purchases or redemptions are made, (b) pay any
management fees or similar fees to any of its shareholders or any Affiliate
thereof other than those which arise pursuant to bona fide arm's length
transactions in the ordinary course of business and reasonable and customary
directors' fees, (c) make any redemption, prepayment, defeasance or repurchase
of any Debt other than Debt permitted under Section 9.7(a), 9.7(b), 9.7(c),
9.7(d) or 9.7(h) or (d) set aside funds for any of the foregoing.
9.11 Mergers, Consolidations, Acquisitions, Sales. Not, and not permit any
Subsidiary to, be a party to any merger or consolidation, purchase or acquire
all or substantially all of the assets of any other Person, all or substantially
all of any division of any other Person or, except as permitted under Section
9.19, any stock of any class of, or any partnership or joint venture interest
in, any other Person, or, except in the ordinary course of its business, sell,
transfer,
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convey or lease all or any substantial part of its assets, or sell or assign
with or without recourse any receivables, except for (a) any such merger,
consolidation, sale, transfer, conveyance, lease or assignment of or by any
Wholly-Owned Subsidiary into the Company or into, with or to any other
Wholly-Owned Subsidiary; (b) any such purchase or other acquisition by the
Company or any Wholly-Owned Subsidiary of the assets or stock of any
Wholly-Owned Subsidiary; (c) any Acquisition by the Company or any Wholly-Owned
Subsidiary where:
(1) immediately before and after giving effect to such Acquisition, no
Event of Default or Unmatured Event of Default shall exist;
(2) the aggregate consideration to be paid by the Company and its
Subsidiaries (including any Debt assumed or issued in connection therewith
and the value of all capital stock issued in connection therewith, the
amount thereof to be calculated in accordance with GAAP) in connection with
such Acquisition (or any series of related Acquisitions) does not exceed
$35,000,000 individually and $75,000,000 in the aggregate when taking into
consideration the aggregate purchase price of all other purchases and
acquisitions consummated after the Closing Date;
(3) not less than five (5) Business Days prior to entering into any
definitive agreement in connection with such Acquisition, the Company shall
have delivered to the Bank a reasonably detailed description of such
Acquisition, together with historical audited or reviewed financial
statements of the Person to be acquired or from whom the assets which are
the subject of such Acquisition are to be acquired and, without any
adjustment to the historical financial performance of the Company, such
Person or assets, projections of the effect of such Acquisition on the
Company's financial performance, demonstrating to the satisfaction of the
Bank that both before and after giving effect to such Acquisition, the
Company is and will be in pro forma compliance with all the financial
ratios and restrictions set forth in Section 9.6;
(4) in the case of the Acquisition of any Person, the Board of
Directors, and, if required by applicable law, the shareholders of the
Company and the Person so acquired have approved the acquisition; and
(5) immediately before and after giving effect to such Acquisition,
the Revolving Commitment Amount (as defined under the Credit Agreement)
shall exceed the Revolving Outstandings (as defined under the Credit
Agreement) by at least $15,000,000 less any cash on hand and Cash
Equivalent Investments of the Company; and
(d) sales and dispositions of assets (including the stock of Subsidiaries) for
at least fair market value (as determined by the Board of Directors of the
Company for any such sale or disposition outside the ordinary course of
business) so long as the net book value of all assets sold or otherwise disposed
of prior to the fifth anniversary of the Closing Date does not exceed the
remainder of (1) 10% of the net book value of the consolidated tangible assets
of the Company and its Subsidiaries as of the most recently ended Fiscal Quarter
minus (2) the aggregate value of all such sales and dispositions since the
Closing Date.
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9.12 Modification of Documents. Not permit the Certificate or Articles of
Incorporation, By-Laws, other organizational documents or any documents,
instruments or agreements evidencing, securing or governing the terms of
repayment of any Debt of the Company or any Subsidiary or the Tuscola Unit C
Agreement to be amended or modified in any way which might reasonably be
expected to materially adversely affect the interests of the Bank.
9.13 Use of Proceeds. Use the proceeds of the Term Loan solely for the
purposes permitted under the Existing STEP Credit Agreement, working capital and
for other general corporate purposes; and not use or permit any proceeds of the
Term Loan to be used, either directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of "purchasing or carrying" any Margin Stock.
9.14 Further Assurances. Take, and cause each Subsidiary to take, such
actions as are necessary or as the Bank may reasonably request from time to time
to ensure that the obligations of the Company hereunder and under the Loan
Documents are guaranteed, by causing the execution and delivery to the Bank of
(a) a counterpart of the Guaranty, by all Subsidiaries (including, promptly upon
the acquisition or creation thereof, each Subsidiary acquired or created after
the date hereof) other than Subsidiaries who collectively own less than 5% of
the consolidated tangible assets of the Company and its Subsidiaries as
determined in accordance with GAAP and (b) concurrently with such execution of a
counterpart of the Guaranty by any Subsidiary, copies of the articles of
incorporation and by-laws of such Subsidiary and resolutions of the board of
directors (or similar governing body) of such Subsidiary authorizing the
execution and delivery of the Guaranty, certified, in each case, by a duly
authorized officer of such Subsidiary and an opinion of counsel (which may be
the Company's general counsel) substantially in the form of Exhibit D to the
Credit Agreement, with appropriate insertions, pertaining to such Subsidiary and
its execution of a counterpart of the Guaranty.
9.15 Transactions with Affiliates. Not, and not permit any Subsidiary to,
enter into, or cause, suffer or permit to exist any transaction, arrangement or
contract with any of its other Affiliates (other than the Company and its
Subsidiaries) which is on terms which are less favorable than are obtainable
from any Person which is not one of its Affiliates.
9.16 Employee Benefit Plans. Maintain, and cause each Subsidiary to
maintain, each Pension Plan in substantial compliance with all applicable
requirements of law and regulations.
9.17 Environmental Matters. (a) If any Release or Disposal of Hazardous
Substances shall occur or shall have occurred on any real property or any other
assets of the Company or any Subsidiary, the Company shall, or shall cause the
applicable Subsidiary to, cause the prompt containment and removal of such
Hazardous Substances and the remediation of such real property or other assets
as necessary to comply with all Environmental Laws and to preserve the value of
such real property or other assets. Without limiting the generality of the
foregoing, the Company shall, and shall cause each Subsidiary to, comply with
any valid Federal or state judicial or administrative order requiring the
performance at any real property of the Company or any Subsidiary of activities
in response to the Release or threatened Release of a Hazardous Substance.
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(b) To the extent that the transportation of "hazardous waste" as defined
by RCRA is permitted by this Agreement, the Company shall, and shall cause its
Subsidiaries to, dispose of such hazardous waste only at licensed disposal
facilities operating in compliance with Environmental Laws.
9.18 Inconsistent Agreements. Not, and not permit any Subsidiary to, enter
into any agreement containing any provision which would (a) be violated or
breached by any borrowing by the Company hereunder or by the performance by the
Company or any Subsidiary of any of its obligations hereunder or under any other
Loan Document or (b) create or permit to exist or become effective any
encumbrance or restriction on the ability of any Subsidiary to (i) pay dividends
or make other distributions to the Company or any other Subsidiary, or pay any
Debt owed to the Company or any other Subsidiary, (ii) make loans or advances to
the Company or (iii) transfer any of its assets or properties to the Company.
9.19 Investments. Not, and not permit any Subsidiary to, make or permit to
exist any Investment in any other Person, except (without duplication) the
following:
(a) contributions by the Company to the capital of any of its
Guarantor Subsidiaries, or by any such Guarantor Subsidiary to the capital
of any of its Guarantor Subsidiaries;
(b) in the ordinary course of business, Investments by the Company in
any Guarantor Subsidiary or by any Subsidiary in the Company, by way of
intercompany loans, advances or guaranties, all to the extent permitted by
Section 9.7;
(c) Suretyship Liabilities permitted by Section 9.7;
(d) Cash Equivalent Investments;
(e) bank deposits in the ordinary course of business;
(f) Investments in securities of account debtors received pursuant to
any plan of reorganization or similar arrangement upon the bankruptcy or
insolvency of such account debtors;
(g) Investments to consummate Acquisitions permitted by Section 9.11;
(h) Investments listed on Schedule 9.19; and
(i) other Investments, in addition to the Investments listed above, in
an aggregate amount not in excess of 5% of the consolidated tangible assets
of the Company and its Subsidiaries as determined in accordance with GAAP;
provided that (x) any Investment which when made complies with the requirements
of the definition of the term "Cash Equivalent Investment" may continue to be
held notwithstanding that such Investment if made thereafter would not comply
with such requirements; (y) no Investment otherwise permitted by clause (b),
(c), or (g) shall be permitted to be made if,
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immediately before or after giving effect thereto, any Event of Default or
Unmatured Event of Default exists.
9.20 Fiscal Year. Not change its Fiscal Year.
SECTION 10
EFFECTIVENESS; CONDITIONS OF LENDING, ETC.
The obligation of the Bank to amend and restate the Existing STEP Credit
Agreement as set forth herein is subject to the following conditions precedent:
10.1 Deliveries. The obligation of the Bank to amend and restate the
Existing STEP Credit Agreement as set forth herein is, in addition to the
conditions precedent specified in Section 10.2, subject to the conditions
precedent that the Bank shall have received all of the following, each duly
executed and dated the Closing Date (or such earlier date as shall be
satisfactory to the Bank), in form and substance satisfactory to the Bank:
10.1.1 Loan Documents. Each Loan Document.
10.1.2 Guaranty. A counterpart of the Guaranty executed by each
Subsidiary of the Company required to execute the Guaranty under Section 9.14.
10.1.3 Credit Agreement. The Company and the Bank shall have entered
into the Credit Agreement and all conditions to the effectiveness of the Credit
Agreement shall have been satisfied.
10.1.4 Insurance. Evidence satisfactory to the Bank of the existence
of insurance required to be maintained pursuant to Section 9.3(b).
10.1.5 Payment of Attorney Costs. Evidence of payment by the Company
of all Attorney Costs of the Bank to the extent invoiced prior to the Closing
Date, plus such additional amounts of Attorney Costs as shall constitute the
Bank's reasonable estimate of Attorney Costs incurred or to be incurred by the
Bank through the closing proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between the Company and the
Bank).
10.1.6 Other. Such other documents as the Bank may reasonably request.
10.2 Compliance with Warranties, No Default, etc. The following statements
shall be true and correct:
(a) the representations and warranties of the Company and each
Subsidiary set forth in this Agreement and the other Loan Documents shall
be true and correct in all material respects with the same effect as if
then made (except to the extent stated to relate to a specific earlier
date, in which case such representations and warranties shall be true and
correct as of such earlier date, and except to the extent changed by
circumstances permitted by the terms of this Agreement); and
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(b) no Event of Default or Unmatured Event of Default shall have then
occurred and be continuing.
SECTION 11
EVENTS OF DEFAULT AND THEIR EFFECT
11.1 Events of Default. Each of the following shall constitute an Event of
Default under this Agreement:
11.1.1 Non-Payment of the Term Loan, etc. Default in the payment when
due of the principal of the Term Loan; or default, and continuance thereof for
five days, in the payment when due of interest on the Term Loan or of any fee or
other amount payable by the Company hereunder or under any other Loan Document.
11.1.2 Non-Payment of Other Debt. Any default shall occur under the
terms applicable to any Debt of the Company or any Subsidiary in an aggregate
amount (for all such Debt so affected) exceeding $10,000,000 and such default
shall (a) consist of the failure to pay such Debt when due, whether by
acceleration or otherwise, or (b) accelerate the maturity of such Debt or permit
the holder or holders thereof, or any trustee or agent for such holder or
holders, to cause such Debt to become due and payable (or require the Company or
any Subsidiary to purchase or redeem such Debt) prior to its expressed maturity.
11.1.3 Other Material Obligations. Default (after giving effect to any
applicable requirement of notice and/or grace) in the payment when due, or in
the performance or observance of, any material obligation of, or condition
agreed to by, the Company or any Subsidiary with respect to any material
purchase or lease of goods or services where such default, singly or in the
aggregate with all other such defaults, might reasonably be expected to have a
Material Adverse Effect; provided, however, that the foregoing shall not
constitute an Event of Default hereunder so long as the Company or such
Subsidiary is contesting such default in good faith by appropriate proceedings
diligently conducted and has set aside on its books reserves with respect
thereto to the extent required by GAAP.
11.1.4 Bankruptcy, Insolvency, etc. The Company or any Subsidiary
becomes insolvent or generally fails to pay, or admits in writing its inability
or refusal to pay, debts as they become due; or the Company or any Subsidiary
applies for, consents to, or acquiesces in the appointment of a trustee,
receiver or other custodian for the Company or such Subsidiary or any property
thereof, or makes a general assignment for the benefit of creditors; or, in the
absence of such application, consent or acquiescence, a trustee, receiver or
other custodian is appointed for the Company or any Subsidiary or for a
substantial part of the property of any thereof and is not discharged within 45
days; or any bankruptcy, reorganization, debt arrangement, or other case or
proceeding under any bankruptcy or insolvency law, or any dissolution or
liquidation proceeding, is commenced in respect of the Company or any
Subsidiary, and if such case or proceeding is not commenced by the Company or
such Subsidiary, it is consented to or acquiesced in by the Company or such
Subsidiary, or remains for 45 days undismissed; or the Company or any Subsidiary
takes any action to authorize, or in furtherance of, any of the foregoing.
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11.1.5 Non-Compliance with Loan Documents. (a) Failure by the Company
to comply with or to perform any covenant set forth in Sections 9.1.5(a), 9.6,
9.7, 9.8, 9.10, 9.11, 9.13, 9.19 or 9.20; or (b) failure by the Company to
comply with or to perform any other provision of this Agreement or any other
Loan Document (and not constituting an Event of Default under any other
provision of this Section 11) and continuance of such failure described in this
clause (b) for thirty (30) days.
11.1.6 Representation and Warranties. Any representation and warranty
made by the Company or any Subsidiary herein or any other Loan Document is
breached or is false or misleading in any material respect, or any schedule,
certificate, financial statement, report, notice or other writing furnished by
the Company or any Subsidiary to the Bank in connection herewith is false or
misleading in any material respect on the date as of which the facts therein set
forth are stated or certified or deemed to have been stated or certified.
11.1.7 Pension Plans. (a) Institution of any steps by the Company or
any other Person to terminate a Pension Plan if as a result of such termination
the Company could be required to make a contribution to such Pension Plan, or
could incur a liability or obligation to such Pension Plan, in excess of
$5,000,000; (b) a contribution failure occurs with respect to any Pension Plan
sufficient to give rise to a Lien under Section 302(f) of ERISA; or (c) there
shall occur any withdrawal or partial withdrawal from a Multiemployer Pension
Plan and the withdrawal liability (without unaccrued interest) to Multiemployer
Pension Plans as a result of such withdrawal (including any outstanding
withdrawal liability that the Company and the Controlled Group have incurred on
the date of such withdrawal) exceeds $5,000,000.
11.1.8 Judgments. Final judgments which exceed an aggregate of
$5,000,000 shall be rendered against the Company or any Subsidiary, excluding
judgments (a) for which there is full insurance (subject to reasonable and
customary deductibles) and with respect to which the insurer has assumed
responsibility in writing, (b) for which there is full indemnification (upon
terms and by creditworthy indemnitors which are satisfactory to the Bank), (c)
which have been paid, discharged or vacated or (d) which have been in force for
a period of time not to exceed the applicable period for filing an appeal, which
have been effectively stayed by the time required by the rules applicable to the
court rendering such judgments or in respect of which the Company or such
Subsidiary shall at the time in good faith be prosecuting an appeal or
proceeding for review, so long as neither execution nor attachment has been
levied thereunder or (e) covered under Section 11.1.9.
11.1.9 Rodel Litigation. Final judgments which exceed an aggregate of
$10,000,000 shall be rendered against Cabot Corporation, the Company or any
Subsidiary in the Rodel Litigation, or any settlement of the Rodel Litigation
agreed to by the Company shall be entered into with respect to which Cabot
Corporation, the Company or any Subsidiary shall be obligated to pay an amount
in excess of $10,000,000, excluding judgments or settlements (a) for which the
Company or such Subsidiary has full insurance (subject to reasonable and
customary deductibles) and with respect to which the insurer has assumed
responsibility in writing, (b) for which the Company or such Subsidiary is fully
indemnified (upon terms and by creditworthy indemnitors which are satisfactory
to the Bank), (c) which have been paid, discharged or vacated
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or (d) in the case of judgments, which have been in force for a period of time
not to exceed the applicable period for filing an appeal, which have been
effectively stayed by the time required by the rules applicable to the court
rendering such judgments or in respect of which Cabot Corporation, the Company
or such Subsidiary shall at the time in good faith be prosecuting an appeal or
proceeding for review, so long as neither execution nor attachment has been
levied thereunder.
11.1.10 Invalidity of Guaranty, etc. The Guaranty shall cease to be in
full force and effect with respect to any Guarantor Subsidiary; or any Guarantor
Subsidiary (or any Person by, through or on behalf of such Subsidiary) shall
contest in any manner the validity, binding nature or enforceability of the
Guaranty with respect to such Guarantor Subsidiary.
11.1.11 Change of Control. (a) Any Person or group of Persons (within
the meaning of Section 13 or 14 of the Securities Exchange Act of 1934, as
amended), shall acquire beneficial ownership (within the meaning of Rule 13d-3
promulgated under such Act) of more than 30% of the outstanding securities (on a
fully diluted basis and taking into account any securities or contract rights
exercisable, exchangeable or convertible into equity securities) of the Company
having voting rights in the election of directors under normal circumstances; or
(b) during any 12 month period, individuals who are members of the Board of
Directors of the Company at the beginning of such period shall cease for any
reason to constitute a majority of the Board of Directors of the Company, other
than due to expiration of term of service, death, disability, previously
established mandatory retirement or resignation due to reasons other than those
as a result of or in anticipation of circumstances described in the preceding
clause (a).
11.1.12 Injunctions. The Company or any of its Subsidiaries shall be
enjoined, restrained or in any way prevented by a order of any court or
administrative or regulatory agency from using any material patent, trademark,
copyright or other intellectual property in a manner consistent with past
practice if the effect of such order might reasonably be expected to have a
Material Adverse Effect, unless the Company or such Subsidiary shall at the time
in good faith be prosecuting an appeal or proceeding for review and in respect
of which a stay of such order shall have been obtained pending such appeal or
review.
11.1.13 Work Stoppages. There shall occur any strike, lockout, labor
dispute, embargo, condemnation, act of God or public enemy, or other casualty,
which in any such case causes, for more than fifteen (15) consecutive days, the
cessation or substantial curtailment of revenue producing activities at any
facility of the Company or any of its Subsidiaries if such event or circumstance
is not covered by business interruption insurance and might reasonably be
expected to have a Material Adverse Effect.
11.1.14 Loss of Licenses or Permits. There shall occur the loss,
suspension or revocation of, or failure to renew, any license or permit now held
or hereafter acquired by the Company or any of its Subsidiaries if such loss,
suspension, revocation or failure to renew might reasonably be expected to have
a Material Adverse Effect.
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11.1.15 Forfeitures. The Company or any of its Subsidiaries shall have
been convicted for a state or federal crime, a punishment for which includes the
forfeiture of any assets of the Company or such Subsidiary having a fair market
value in excess of $5,000,000.
11.1.16 Cancellation, Invalidity of Loan Documents. The cancellation,
termination, revocation or rescission of the Loan Documents otherwise than in
accordance with the terms thereof or with the express prior written agreement,
consent or approval of the Bank, or the commencement of any action at law, suit
or in equity or other legal proceeding by or on behalf of the Company or any
Loan Party or any of their respective stockholders, to cancel, revoke or rescind
any of the Loan Documents , or the determination by any court or any other
governmental or regulatory authority or agency of competent jurisdiction that
any one or more of the Loan Documents is illegal, invalid or unenforceable in
accordance with the terms thereof
11.2 Effect of Event of Default. If any Event of Default described in
Section 11.1.4 shall occur, the Term Loan and all other obligations hereunder
shall become immediately due and payable, all without presentment, demand,
protest or notice of any kind; and, if any other Event of Default shall occur
and be continuing, the Bank shall declare the Term Loan and all other
obligations hereunder to be due and payable, whereupon the Term Loan and all
other obligations hereunder shall become immediately due and payable, all
without presentment, demand, protest or notice of any kind. The Bank shall
promptly advise the Company of any such declaration, but failure to do so shall
not impair the effect of such declaration.
SECTION 12
GENERAL
12.1 Waiver; Amendments. No delay on the part of the Bank in the exercise
of any right, power or remedy shall operate as a waiver thereof, nor shall any
single or partial exercise by any of them of any right, power or remedy preclude
other or further exercise thereof, or the exercise of any other right, power or
remedy. No amendment, modification or waiver of, or consent with respect to, any
provision of this Agreement or the Note shall in any event be effective unless
the same shall be in writing and signed and delivered by the Bank, and then any
such amendment, modification, waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
12.2 Confirmations. The Company and the Bank agree from time to time, upon
written request received by it from the other, to confirm to the other in
writing the aggregate unpaid principal amount of the Term Loan then outstanding
under the Note.
12.3 Notices. Except as otherwise provided in Sections 2.2.2 and 2.2.3, all
notices hereunder shall be in writing (including facsimile transmission) and
shall be sent to the applicable party at its address shown on Schedule 12.3 or
at such other address as such party may, by written notice received by the other
parties, have designated as its address for such purpose. Notices sent by
facsimile transmission shall be deemed to have been given when sent; notices
sent by mail shall be deemed to have been given three Business Days after the
date when sent by registered or certified mail, postage prepaid; and notices
sent by hand delivery or overnight courier service shall be deemed to have been
given when received. For purposes
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Sections 2.2.2 and 2.2.3, the Bank shall be entitled to rely on telephonic
instructions from any person that the Bank in good faith believes is an
authorized officer or employee of the Company, and the Company shall hold the
Bank harmless from any loss, cost or expense resulting from any such reliance.
12.4 Computations. Where the character or amount of any asset or liability
or item of income or expense is required to be determined, or any consolidation
or other accounting computation is required to be made, for the purpose of this
Agreement and the other Loan Documents, such determination or calculation shall,
to the extent applicable and except as otherwise specified in this Agreement, be
made in accordance with GAAP, consistently applied; provided that if the Company
notifies the Bank that the Company wishes to amend any covenant in Section 9 to
eliminate or to not take into account the effect of any change in GAAP on the
operation of such covenant, then the Company's compliance with such covenant
shall be determined on the basis of GAAP in effect immediately before the
relevant change in GAAP became effective, until either such notice is withdrawn
or such covenant is amended in a manner satisfactory to the Company and the
Bank.
12.5 Regulation U. The Bank represents that it in good faith is not
relying, either directly or indirectly, upon any Margin Stock as collateral
security for the extension or maintenance by it of any credit provided for in
this Agreement.
12.6 Costs, Expenses and Taxes. The Company agrees to pay on demand all
reasonable out-of-pocket costs and expenses of the Bank (including Attorney
Costs) in connection with the preparation, execution, delivery and
administration of this Agreement, the other Loan Documents and all other
documents provided for herein or delivered or to be delivered hereunder or in
connection herewith (including any amendment, supplement or waiver to any Loan
Document), and all reasonable out-of-pocket costs and expenses (including
Attorney Costs) incurred by the Bank after an Event of Default in connection
with the enforcement of this Agreement, the other Loan Documents or any such
other documents. In addition, the Company agrees to pay, and to save the Bank
harmless from all liability for, (a) any stamp or other taxes (excluding income
taxes and franchise taxes based on the Bank's net income) which may be payable
in connection with the execution and delivery of this Agreement, the borrowings
hereunder, the issuance of the Note or the execution and delivery of any other
Loan Document or any other document provided for herein or delivered or to be
delivered hereunder or in connection herewith and (b) any fees of the Company's
auditors in connection with any reasonable exercise by the Bank of their rights
pursuant to Section 9.2. All obligations provided for in this Section 12.6 shall
survive repayment of the Term Loan, cancellation of the Note and termination of
this Agreement.
12.7 Subsidiary References. The provisions of this Agreement relating to
Subsidiaries shall apply only during such times as the Company has one or more
Subsidiaries.
12.8 Captions. Section captions used in this Agreement are for convenience
only and shall not affect the construction of this Agreement.
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12.9 Succesors, Participants and Assigns. This Agreement shall be binding
upon the Company, the Bank and their respective successors and assigns, and
shall inure to the benefit of the Company and the Bank and the successors and
assigns of the Bank. The Bank may assign, participate or transfer any portion of
its rights under this Agreement to any Person, provided that so long as no Event
of Default exists, the Bank first obtains the prior written consent of the
Company, which consent shall not be unreasonably delayed or withheld and, in any
event, shall not be required for an assignment by the Bank to one of its
Affiliates. If the Bank transfers, or assigns any portion of its rights under
this Agreement to any Person then the Bank must transfer such corresponding
portion of STEP deposits made by the State of Illinois Treasury Department to
such assignee or transferee. From and after the date on which an assignment by
the Bank is made, the assignee shall be deemed automatically to have become a
party hereto and, such assignee shall have the rights and obligations of the
Bank hereunder and the Bank shall be released from its obligations hereunder.
12.10 Governing Law. This Agreement and the Note shall be a contract made
under and governed by the internal laws of the State of Illinois applicable to
contracts made and to be performed entirely within such State. Whenever possible
each provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Agreement
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Agreement. All obligations of the Company and rights of the Bank expressed
herein or in any other Loan Document shall be in addition to and not in
limitation of those provided by applicable law.
12.11 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts and
each such counterpart shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Agreement.
12.12 Indemnification by the Company. In consideration of the execution and
delivery of this Agreement by the Bank and the agreement to make the Term Loan
provided hereunder, the Company hereby agrees to indemnify, exonerate and hold
the Bank and each of the officers, directors, employees, Affiliates and agents
of the Bank (each a "Bank Party") free and harmless from and against any and all
actions, causes of action, suits, losses, liabilities, damages and expenses,
including Attorney Costs (collectively, the "Indemnified Liabilities"), incurred
by the Bank Parties or any of them as a result of, or arising out of, or
relating to (i) any tender offer, merger, purchase of stock, purchase of assets
or other similar transaction financed or proposed to be financed in whole or in
part, directly or indirectly, with the proceeds of the Term Loan, (ii) the use,
handling, release, emission, discharge, transportation, storage, treatment or
disposal of any hazardous substance at any property owned or leased by the
Company or any Subsidiary, (iii) any violation of any Environmental Laws with
respect to conditions at any property owned or leased by the Company or any
Subsidiary or the operations conducted thereon, (iv) the investigation, cleanup
or remediation of offsite locations at which the Company or any Subsidiary or
their respective predecessors are alleged to have directly or indirectly
disposed of hazardous substances, (v) claims of any Persons in connection with
any of the Securities Laws
41
50
and relating to the making of the Term Loan or the transactions contemplated by
this Agreement and the other Loan Documents, or (vi) the execution, delivery,
performance or enforcement of this Agreement or any other Loan Document by any
of the Bank Parties, except for any such Indemnified Liabilities arising on
account of the applicable Bank Party's gross negligence or willful misconduct.
If and to the extent that the foregoing undertaking may be unenforceable for any
reason, the Company hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. All obligations provided for in this Section
12.12 shall survive repayment of the Term Loan, cancellation of the Note, any
foreclosure under, or any modification, release or discharge of any Guaranty and
termination of this Agreement.
12.13 Nonliability of the Bank. The relationship between the Company on the
one hand and the Bank on the other hand shall be solely that of borrower and
lender. The Bank shall not have any fiduciary responsibility to the Company. The
Bank undertakes no responsibility to the Company to review or inform the Company
of any matter in connection with any phase of the Company's business or
operations. The Company agrees that the Bank shall not have liability to the
Company (whether sounding in tort, contract or otherwise) for losses suffered by
the Company in connection with, arising out of, or in any way related to the
transactions contemplated and the relationship established by the Loan
Documents, or any act, omission or event occurring in connection therewith,
unless it is determined in a final non-appealable judgment by a court of
competent jurisdiction that such losses resulted from the gross negligence or
willful misconduct of the Bank. The Bank shall not have any liability with
respect to, and the Company hereby waives, releases and agrees not to xxx for,
any special, indirect or consequential damages suffered by the Company in
connection with, arising out of, or in any way related to the Loan Documents or
the transactions contemplated thereby.
12.14 FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT, SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS
OF THE STATE OF ILLINOIS OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS; PROVIDED THAT ANY SUIT SEEKING ENFORCEMENT AGAINST ANY
PROPERTY MAY BE BROUGHT, AT THE BANK'S OPTION, IN THE COURTS OF ANY JURISDICTION
WHERE SUCH PROPERTY MAY BE FOUND. THE COMPANY HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF ILLINOIS AND OF THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE. THE COMPANY FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF ILLINOIS. THE
COMPANY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT
42
51
REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
12.15 Waiver of Jury Trial. EACH OF THE COMPANY AND THE BANK HEREBY WAIVES
ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND
ANY RIGHTS UNDER THIS AGREEMENT, THE NOTE, ANY OTHER LOAN DOCUMENT AND ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR ARISING FROM ANY
BANKING RELATIONSHIP EXISTING IN CONNECTION WITH ANY OF THE FOREGOING, AND
AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT
BEFORE A JURY.
12.16 Confidentiality. The Bank, without the prior written consent of the
Company, (i) shall not disclose to any third party any information relative to
the Company or any of its Subsidiaries which has been conspicuously designated
by the Company as confidential or proprietary ("Confidential Information"), (ii)
shall not use Confidential Information of the Company for its own purpose,
except as specifically provided in this Agreement to effect the purposes of this
Agreement, or to benefit a third party, (iii) shall not disseminate Confidential
Information to any Person other than its employees, directors, officers, agents
and attorneys who must be directly involved with such Confidential Information
and (iv) shall not fail to use the same degree of care as for its own
information of like importance (but in any event at least commercially
reasonable care) in safeguarding against disclosure of Confidential Information.
The foregoing restrictions on disclosure and use of Confidential Information
shall not apply to any disclosure or use of any Confidential Information (i) in
connection with any proposed assignment, participation or transfer permitted
under Section 12.9, provided the Bank making such assignment, participation or
transfer has first obtained the Company's prior written consent to such
disclosure or use, which consent shall not be unreasonably withheld so long as
the prospective assignee, participant or transferee has agreed in writing to be
bound by the provisions of this Section 12.16, (ii) which otherwise in its
entirety is in the public domain, (iii) to the extent required by applicable law
or any rule, regulation, decree, order or injunction of any foreign, federal,
state, municipal or other government, or any department, commission, board,
bureau, agency, public authority or instrumentality thereof or any court or
arbitrator, but only after each Agent and each Bank shall have given, to the
extent permitted by applicable law, the Company written notice of such
requirement and allowed the Company to contest such requirement, (iv) which is
obtained by the Bank from a third party not known to the Bank to be under an
obligation of confidentiality to the Company or (v) in connection with the
enforcement by the Bank of their respective rights under this Agreement and the
other Loan Documents, subject to the prior entry by the court in which such
proceedings are pending of an appropriate order designed to afford the Company
reasonable assurance such Confidential Information will be protected from
unnecessary disclosure.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK.]
43
52
Delivered at Chicago, Illinois, as of the day and year first above written.
CABOT MICROELECTRONICS CORPORATION
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
LASALLE BANK NATIONAL ASSOCIATION
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
53
PRICING SCHEDULE
The Eurodollar Margin and the Base Rate Margin shall be determined as set
forth below.
Initially, the Eurodollar Margin shall be 1.00% per annum and the Base Rate
Margin shall be 0.00% per annum.
The Eurodollar Margin and the Base Rate Margin shall be adjusted, in
accordance with the last paragraph of this Pricing Schedule, to equal the
applicable rate per annum set forth in the table below opposite the applicable
Leverage Ratio:
-------------------------------------------------------------------------------
LEVERAGE RATIO EURODOLLAR BASE RATE
MARGIN MARGIN
-------------------------------------------------------------------------------
Greater than or equal to 1.50:1 1.50% 0.00%
-------------------------------------------------------------------------------
Greater than or equal to 1.00:1 but less
than 1.50:1 1.25% 0.00%
-------------------------------------------------------------------------------
Less than 1.00:1 1.00% 0.00%
-------------------------------------------------------------------------------
The Eurodollar Margin and the Base Rate Margin shall be adjusted, to the
extent applicable, on the third Business Day after the 45th (or, in the case of
the last Fiscal Quarter of each Fiscal Year, 90th) day after the end of each
Fiscal Quarter commencing with the Fiscal Quarter ending June 30, 2001 based on
the Leverage Ratio as of the last day of such Fiscal Quarter; it being
understood that if the Company fails to deliver the financial statements
required by Section 9.1.1 or 9.1.2, as applicable, and the related Compliance
Certificate, required by Section 9.1.3 by the 45th day (or, if applicable, the
90th day) after any Fiscal Quarter, the Eurodollar Margin shall be 1.50% and the
Base Rate Margin shall be 0.00% until three Business Days following the delivery
of such financial statements and Compliance Certificate. Notwithstanding the
foregoing, no reduction to the foregoing interest rate margins or fee rates
shall become effective at any time when an Event of Default or Unmatured Event
of Default has occurred and is continuing.
54
SCHEDULE 8.6
LITIGATION AND CONTINGENT LIABILITIES
55
SCHEDULE 8.14
SUBSIDIARIES
56
SCHEDULE 8.16
INTELLECTUAL PROPERTY
57
SCHEDULE 8.17
INSURANCE
58
SCHEDULE 8.21
PENSION AND WELFARE PLANS
59
SCHEDULE 8.22
ENVIRONMENTAL MATTERS
60
SCHEDULE 9.7
EXISTING DEBT
61
SCHEDULE 9.8
EXISTING LIENS
62
SCHEDULE 9.19
INVESTMENTS
63
SCHEDULE 10.9
EXISTING OPERATING LEASES
64
SCHEDULE 12.3
ADDRESSES FOR NOTICES
CABOT MICROELECTRONICS CORPORATION
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx, General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LASALLE BANK NATIONAL ASSOCIATION
Notices of Conversion or Continuation
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All Other Notices
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Raider
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
65
EXHIBIT A
FORM OF NOTE
Please See Attached.
66
TERM NOTE
JULY ___, 2001
CHICAGO, ILLINOIS $3,500,000
FOR VALUE RECEIVED, the undersigned, CABOT MICROELECTRONICS
CORPORATION, a Delaware corporation (the "Maker"), promises to pay to the order
of LaSalle Bank National Association (the "Bank") at its principal office in
Chicago, Illinois the aggregate unpaid amount of the Term Loan made to the
undersigned by the Bank pursuant to the Second Amended and Restated Credit
Agreement referred to below (as shown on the schedule attached hereto (and any
continuation thereof) or in the records of the Bank), such principal amount to
be payable on April 3, 2005.
The Maker further promises to pay interest on the unpaid principal
amount of the Term Loan until the date the Term Loan is paid in full, payable at
the rate(s) and at the time(s) set forth in the Second Amended and Restated
Credit Agreement. Payments of both principal and interest are to be made in
lawful money of the United States of America.
This Note evidences indebtedness incurred under, and is subject to the
terms and provisions of, the Second Amended and Restated Credit Agreement, dated
as of July 10, 2001(as amended or otherwise modified from time to time, the
"Second Amended and Restated Credit Agreement"), among the Maker and the Bank,
to which Agreement reference is hereby made for a statement of the terms and
provisions under which this Note may or must be paid prior to its due date or
its due date accelerated. Capitalized terms used but not elsewhere defined in
this Note shall have the respective meanings ascribed to such terms in the
Second Amended and Restated Credit Agreement.
This Note is made under and governed by the laws of the State of
Illinois applicable to contracts made and to be performed entirely within such
State.
CABOT MICROELECTRONICS CORPORATION
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
67
Schedule attached to Term
Note dated July ___, 2001
of CABOT MICROELECTRONICS
CORPORATION payable to the
order of _________________
Date
and Amount of Loan Date and Amount of
or of Conversion Repayment or of Interest
from another Conversion into another Period/Unpaid Principal Notation
type of Loan type of Loan Maturity Date Balance Made by
------------ ------------ ------------- ------- -------
1. STEP RATE LOAN
2. BASE RATE LOANS
3. EURODOLLAR LOANS
