EXHIBIT (b)(1)
Execution Copy
$285,000,000
CREDIT AGREEMENT
Dated as of February 1, 2002
Among
IRONBRIDGE ACQUISITION CORP.
as Borrower
and
UTRECHT-AMERICA FINANCE CO.
as Initial Lender
and
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND",
NEW YORK BRANCH
as Agent
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CREDIT AGREEMENT
CREDIT AGREEMENT dated as of February 1, 2002 among IRONBRIDGE ACQUISITION
CORP., a Pennsylvania corporation (together with any successor by merger, the
"Borrower"), UTRECHT-AMERICA FINANCE CO., a Delaware corporation, as the Initial
Lender (the "Initial Lender"), and COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK NEDERLAND", NEW YORK BRANCH,
("Rabobank"), as agent (together with any successor appointed pursuant to
Article VII hereof, the "Agent") for the Lenders (as hereinafter defined).
PRELIMINARY STATEMENTS:
(1) The Borrower intends to acquire (the "Acquisition") all of the issued
and outstanding Capital Stock of Pitt-Des Moines, Inc., a Pennsylvania
corporation ("PDMI").
(2) PDM Bridge Corp., a Delaware corporation ("PDMB"), is a wholly-owned
subsidiary of PDMI.
(3) The Borrower has requested that the Initial Lender extend credit to the
Borrower, on the terms and conditions set forth herein, for the purpose of
financing the Acquisition.
(4) To induce the Initial Lender to enter into this Agreement and extend
credit to the Borrower, (i) the Borrower is executing and delivering to the
Agent the Security Agreement (as hereinafter defined) pursuant to which the
Borrower is assigning and pledging to the Agent for its benefit and the ratable
benefit of the Lenders the Borrower's right title and interest in and to certain
assets as security for its obligations hereunder (ii) PDMB is executing the PDMB
Guaranty (as hereinafter defined) pursuant to which PDMB is, effective
immediately after the effectiveness of the Merger, guaranteeing the obligations
of the Borrower hereunder and (iii) PDMB is executing and delivering to the
Agent the PDMB Security Agreement (as hereinafter defined) pursuant to which
PDMB is effective immediately after the effectiveness of the Merger, assigning
and pledging to the Agent for its benefit and the ratable benefit of the Lenders
PDMB's right title and interest in and to certain assets as security for its
obligations hereunder.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Acquisition" has the meaning specified in the recital of parties to
this Agreement.
"Advance" has the meaning specified in Section 2.01.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling,"
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5% or more of the
Voting Stock of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Stock, by contract or otherwise.
"Agent" has the meaning specified in the recital of parties to this
Agreement.
"Agent's Account" means the account of the Agent maintained by the
Agent with The Bank of New York, ABA #000-000-000, at its office at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No. 000-0000-000, credit to
Rabobank Nederland, New York Branch, Attention: Corporate
Services/Ironbridge Acquisition, or such other account as shall be notified
to the Borrower by the Agent from time to time.
"Applicable Lending Office" means, with respect to each Lender, such
Lender's Base Rate Lending Office or Eurodollar Rate Lending Office, as
applicable.
"Applicable Margin" means 0.50% per annum.
"Asset Buyer" means Steel Bridges, LLC, a Delaware limited liability
company.
"Asset Purchase Agreement" means the Asset Purchase Agreement dated as
of February 1, 2002 among PDMI, Asset Buyer and PDM Bridge Corp.
"Asset Sale Escrow Agreement" means the Asset Sale Escrow Agreement
dated as of February 1, 2002 among PDMI, Asset Buyer and Rabobank, as
Escrow Agent in the form attached hereto as Exhibit B.
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"Assignment and Acceptance" means an assignment and acceptance
agreement entered into by a Lender and an Eligible Assignee, and accepted
by the Agent, in accordance with Section 8.07 and in form and substance
satisfactory to the Agent.
"Base Rate" means a fluctuating interest rate per annum in effect from
time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest quoted by the Agent in New York, New
York, from time to time, as its base rate; and
(b) 1/2 of one percent per annum above the Federal Funds Rate.
"Base Rate Advance" means the Advance at any time that the Advance
bears interest as provided in Section 2.06(a)(ii).
"Base Rate Lending Office" means, with respect to any Base Rate
Advance, (i) in the case of the Initial Lender, the office of the Initial
Lender at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other office of
the Initial Lender as the Initial Lender may from time to time specify to
the Borrower and the Agent and (ii) in the case of the other Lenders the
office of such Lender specified as its "Base Rate Advance Lending Office"
in the Assignment and Acceptance pursuant to which it became a Lender, or
such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Agent.
"Borrower" has the meaning specified in the recital of parties to this
Agreement; it being expressly understood that at any time after the
effectiveness of the Merger, "Borrower" shall mean and include the
surviving corporation in the Merger.
"Borrowing" means the borrowing of an Advance.
"Business Day" means a day of the year on which banks are not required
or authorized by law to close in New York City and, if the applicable
Business Day relates to a Eurodollar Rate Advance, on which dealings are
carried on in the London interbank market.
"Capital Stock" means (i) any and all shares, interests,
participations or other equivalents (however designated) of capital stock
of a corporation, (ii) any membership interests in any limited liability
company or other Person, (iii) any Partnership interests in any general or
limited partnership or any other Person and (iv) any and all equivalent
equity or other ownership interests in a Person and any and all warrants,
options or other rights (contingent or otherwise) to purchase any of the
foregoing.
"Cash Equivalents" means any of the following, to the extent owned by
the Borrower free and clear of all Liens and having a maturity of not
greater than 90 days from the date of acquisition thereof: (a) readily
marketable direct obligations of the Government of the United States or any
agency or instrumentality thereof or obligations unconditionally guaranteed
by the full faith and credit of the Government of the United States or (b)
insured certificates of deposit of
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or time deposits with any commercial bank that is a Lender or a member of
the Federal Reserve System, is organized under the laws of the United
States or any State thereof and has combined capital and surplus of at
least U.S.$1,000,000,000 (or the equivalent thereof).
"Collateral" means all "Collateral" referred to in the Security
Agreement and all other property that is or is intended to be subject to
any Lien in favor of the Agent for the benefit of the Secured Parties.
"Confidential Information" means information that the Borrower
furnishes to the Agent or any Lender on a confidential basis, but does not
include any such information that is or becomes generally available to the
public or that is or becomes available to the Agent or such Lender from a
source other than the Borrower which source was not, to the best knowledge
of the Agent or the Borrower, as applicable, subject to any confidentiality
agreement or arrangement.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Convert", "Conversion" and "Converted" each refers to a conversion of
Advances of one Type into Advances of the other Type pursuant to Section
2.07 or 2.08.
"Debt" of any Person means, without duplication, (a) all indebtedness
of such Person for borrowed money, (b) all obligations of such Person for
the deferred purchase price of property or services, (c) all obligations of
such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising under
any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all obligations of
such Person as lessee under leases that have been or should be, in
accordance with GAAP, recorded as capital leases, (f) all obligations,
contingent or otherwise, of such Person in respect of acceptances, letters
of credit or similar extensions of credit, (g) all obligations of such
Person in respect of Hedge Agreements, (h) all Debt of others referred to
in clauses (a) through (g) above or clause (i) below guaranteed directly or
indirectly in any manner by such Person, or in effect guaranteed directly
or indirectly by such Person through an agreement (1) to pay or purchase
such Debt or to advance or supply funds for the payment or purchase of such
Debt, (2) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the debtor
to make payment of such Debt or to assure the holder of such Debt against
loss, (3) to supply funds to or in any other manner invest in the debtor
(including any agreement to pay for property or services irrespective of
whether such property is received or such services are rendered) or (4)
otherwise to assure a creditor against loss, and (i) all Debt referred to
in clauses (a) through (h) above secured by (or for which the holder of
such Debt has an existing right, contingent or otherwise, to be secured by)
any Lien on property (including accounts and contract rights) owned by such
Person, even though such Person has not assumed or become liable for the
payment of such Debt.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
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"Distributions" means any distribution or dividend or return of
capital or any other distribution, payment or delivery of property or cash,
or the redemption, retirement, purchase or acquisition, directly or
indirectly, of any Capital Stock now or hereafter outstanding (or any
warrants for or options in respect of any such interest) or the setting
aside of any funds for any of the foregoing purposes.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) a commercial bank organized under the laws of the United States, or any
State thereof, and having total assets in excess of U.S.$500,000,000 (or
the equivalent thereof); (d) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof, and
having total assets in excess of U.S.$500,000,000 (or the equivalent
thereof); (e) a commercial bank organized under the laws of any other
country that is a member of the OECD and having total assets in excess of
U.S.$500,000,000 (or the equivalent thereof); (f) the central bank of any
country that is a member of the OECD; (g) a finance company or other
financial institution (whether a corporation, partnership, trust or other
entity) that is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business and having total
assets in excess of U.S.$500,000,000 (or the equivalent thereof); or (h)
any other Person approved by the Agent and the Borrower, such approval not
to be unreasonably withheld.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Escrow Amount" has the meaning specified in the Asset Sale Escrow
Agreement.
"Eurodollar Lending Office" means, with respect to any Eurodollar Rate
Advance, (i) in the case of the Initial Lender, the office of the Initial
Lender at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other office of
the Initial Lender as the Initial Lender may from time to time specify to
the Borrower and the Agent and (ii) in the case of the other Lenders the
office of such Lender specified as its "Eurodollar Rate Advance Lending
Office" in the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"Eurocurrency Liabilities" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"Eurodollar Rate" means, for any Interest Period, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the average rate
per annum (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) at which deposits in U.S.
Dollars are offered by the Reference Banks in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period in an amount
substantially equal to the principal amount of the Advance outstanding and
for a period equal to such Interest Period by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such Interest Period;
provided that,
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unless and until the Agent designates at least three Reference Banks, the
"Eurodollar Rate" means an interest rate per annum obtained by dividing (a)
the rate per annum at which deposits in U.S. Dollars are offered by the
principal office of the Agent in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two days before the
date of the first day of such Interest Period in an amount substantially
equal to the principal amount of Advance and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means the Advance at any time that the
Advance bears interest as provided in Section 2.06(a)(i).
"Eurodollar Rate Reserve Percentage" means, for any Interest Period,
the reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including any emergency,
supplemental or other marginal reserve requirement) for a member bank of
the Federal Reserve System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (or with respect
to any other category of liabilities that includes deposits by reference to
which the interest rate on the Eurodollar Rate Advance is determined)
having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Business Day, the
average of the quotations for such day on such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by
it.
"Fiscal Year" means a fiscal year of the Borrower ending on December
31 in any calendar year.
"GAAP" has the meaning specified in Section 1.03.
"Hedge Agreements" means interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts and other similar agreements.
"Indemnified Party" has the meaning specified in Section 8.04(b).
"Initial Lender" has the meaning specified in the recital of parties
to this Agreement.
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"Interest Period" means, at any time when the Advance is a Eurodollar
Rate Advance, initially, the period commencing on the date of the Advance
becomes a Eurodollar Rate Advance and ending on the day which is one week,
one month, two months or three months thereafter, as selected by the
Borrower in the relevant Notice of Borrowing and, thereafter, each
subsequent period commencing on the last day of the immediately preceding
Interest Period and ending on the day which is one week, one month, two
months or three months thereafter, as selected by the Borrower in the
relevant Notice of Borrowing; provided, however, that:
(i) the duration of any Interest Period which commences before
the Maturity Date and otherwise ends after the Maturity Date shall end
on the Maturity Date;
(ii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such
Interest Period shall be extended to occur on the next succeeding
Business Day; provided that if such extension would cause the last day
of such Interest Period to occur in the next following calendar month,
the last day of such Interest Period shall occur on the next preceding
Business Day; and
(iii) whenever the first day of any Interest Period occurs on a
day of an initial calendar month for which there is no numerically
corresponding day in the last calendar month of such Interest Period,
such Interest Period shall end on the last Business Day of such last
calendar month;
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any Capital Stock or other ownership
or profit interest, warrants, rights, options, obligations or other
securities of such Person, any capital contribution to such Person or any
other investment in such Person, including any arrangement pursuant to
which the investor incurs Debt of the types referred to in clause (h) or
(i) of the definition of "Debt" in respect of such Person.
"Ironbridge" means Ironbridge Holding LLC, a Delaware limited
liability company.
"Lenders" means the Initial Lender and each Person that shall become a
Lender hereunder pursuant to Section 8.07.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including the lien or retained security title of a conditional vendor and
any easement, right of way or other encumbrance on title to real property.
"Loan Documents" means (i) this Agreement, (ii) the Note, (iii) the
Security Agreement and (iv) the other documents executed in connection with
the transactions contemplated thereby, in each case as amended or otherwise
modified from time to time in accordance with the terms thereof and hereof.
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"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower, (b) the rights and remedies of (i)
the Agent or any Lender under any Loan Document or (ii) the Borrower under
any Transaction Document or (c) the ability of the Borrower to perform its
Obligations under any Loan Document or any Transaction Document to which it
is or will be a party.
"Maturity Date" means the date which is 30 days after the date on
which the Advance is made; provided, that if such date is not a Business
Day, the Maturity Date shall be the next Business Day.
"Merger" means the merger contemplated by the Merger Agreement.
"Merger Agreement" means the Merger Agreement (including the Plan of
Merger attached thereto), dated as of a date on or prior to the date of the
Advance, by and among the Borrower, Ironbridge and PDMI in the form
attached hereto as Exhibit C, or such other form acceptable to the Agent
and the Initial Lender in their sole discretion.
"Minimum Required Collateral Value" means the sum of (i) the principal
amount of the Advance, plus (ii) all interest and fees payable under this
Agreement during the period beginning on the date hereof and ending on the
Maturity Date, plus (iii) $1,000,000.
"Note" means a promissory note of the Borrower payable to the order of
any Lender, in substantially the form of Exhibit A attached hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Advance.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including any
liability of such Person on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or not such claim is
discharged, stayed or otherwise affected by any proceeding referred to in
Section 6.01(e). Without limiting the generality of the foregoing, the
Obligations of the Borrower under the Transaction Documents include (a) the
obligation to pay principal, interest, charges, expenses, fees, attorneys'
fees and disbursements, indemnities and other amounts payable by the
Borrower under any Transaction Document and (b) the obligation of the
Borrower to reimburse any amount in respect of any of the foregoing that
any Lender, in its sole discretion, may elect to pay or advance on behalf
of the Borrower.
"OECD" means the Organization for Economic Cooperation and
Development.
"Other Taxes" has the meaning specified in Section 2.10(b).
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"Paying Agent" has the meaning set forth in the Merger Agreement.
"Paying Agent's Account" means the account of the Paying Agent which
is designated pursuant to the Offer Documents (as defined in the Merger
Agreement) as the account to which the Total Consideration shall be
delivered.
"PDMB" has the meaning specified in the preliminary statements hereto.
"PDMB Collateral" means all "Collateral" referred to in the PDMB
Security Agreement and all other property that is or is intended to be
subject to any Lien in favor of the Agent pursuant thereto.
"PDMB Guaranty" means that certain Guaranty, dated as of the date
hereof, made by PDMB in favor of the Agent for its benefit and the ratable
benefit of the Lenders and effective immediately after the effectiveness of
the Merger.
"PDMB Security Agreement" means that certain Security Agreement, dated
as of the date hereof, made by PDMB in favor of the Agent for its benefit
and the ratable benefit of the Lenders and effective immediately after the
effectiveness of the Merger.
"PDMI" has the meaning specified in the preliminary statements hereto.
"PDMI Cash Collateral" means a cash deposit, free and clear of any
Liens, in an account established for that purpose at a financial
institution satisfactory to the Agent in its sole discretion.
"Permitted Merger" means a merger permitted pursuant to Section
5.02(d).
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Rabobank" has the meaning specified in the recital of parties to this
Agreement.
"Reference Banks" means the Agent and the other banks, if any,
designated by the Agent as "Reference Banks" in consultation with the
Borrower.
"Register" has the meaning specified in Section 8.07(d).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Required Lenders" means, at any time, Lenders owed at least 51% of
the then aggregate unpaid principal amount of the Advance owing to Lenders.
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"Responsible Officer" means any officer of the Borrower.
"Secured Obligations" has the meaning specified in the Security
Agreement.
"Secured Parties" means the Agent and the Lenders.
"Security Agreement" means the Security Agreement dated as of the date
hereof, made by the Borrower as grantor to the Agent for the benefit of the
Agent and the other Secured Parties, as the same may be amended from time
to time in accordance with the terms hereof and thereof.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including
contingent liabilities, of such Person, (b) the present fair salable value
of the assets of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured, (c) such Person does not intend to, and does
not reasonably believe that it will, incur debts or liabilities beyond such
Person's ability to pay such debts and liabilities as they mature and (d)
such Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's property
would constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the light
of all the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such partnership, joint venture or limited liability company or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Taxes" has the meaning specified in Section 2.10(a).
"Total Consideration" has the meaning set forth in the Merger
Agreement.
"Transaction Documents" means (i) the Merger Agreement, (ii) the Asset
Purchase Agreement, (iii) the Asset Sale Escrow Agreement, (iv) the PDMB
Guaranty, (v) the PDMB Security Agreement, (vi) the Loan Documents and
(vii) the other documents executed in connection with the transactions
contemplated thereby, in each case as amended or otherwise modified from
time to time in accordance with the terms thereof and hereof.
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"Type" refers to the distinction between an Advance bearing interest
at the Base Rate and an Advance bearing interest at the Eurodollar Rate.
"Voting Stock" means Capital Stock of a Person, the holders of which
are ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person or otherwise control the actions of such Person, even if the right
so to vote or control the actions has been suspended by the happening of
such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding".
SECTION 1.03. Accounting Terms. Accounting terms not specifically defined
herein shall be construed in accordance with generally accepted accounting
principles consistently applied ("GAAP").
SECTION 1.04. No Presumption Against Any Party. Neither any Transaction
Document nor any uncertainty or ambiguity therein shall be construed against any
particular party, whether under any rule of construction or otherwise. On the
contrary, each Transaction Document has been reviewed by each of the parties
thereto and their respective counsel and shall be construed and interpreted
according to the ordinary meaning of the words used so as to fairly accomplish
the purposes and intentions of all parties thereto.
SECTION 1.05. Use of Certain Terms. Unless the context of any Transaction
Document requires otherwise, the plural includes the singular, the singular
includes the plural, and "including" has the inclusive meaning of "including
without limitation." The words "hereof," "herein," "hereby," "hereunder," and
other similar terms of any Transaction Document refer to such Transaction
Document and all other annexes, schedules and exhibits attached thereto) as a
whole and not exclusively to any particular provision of such Transaction
Document. All pronouns and any variations thereof shall be deemed to refer to
the masculine, feminine, or neuter, singular or plural, as the identity of the
Person or Persons may require.
SECTION 1.06. Headings and References. Article, Section and other headings
are for reference only, and are not intended to describe, interpret, define or
limit the scope, extent or intent of any Transaction Document or any provision
thereof. References in any Transaction Document to Articles, Sections, Annexes,
Schedules and Exhibits refer to Articles, Sections, Annexes, Schedules, and
Exhibits of or to such Transaction Document, and references in Sections of such
Transaction Document to any clause refer to such clause of such Section.
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ARTICLE II
AMOUNT AND TERMS OF THE ADVANCE
SECTION 2.01. The Advance. The Initial Lender agrees, on the terms and
conditions hereinafter set forth, to make an advance (the "Advance") to the
Borrower (i) in an amount equal to the lesser of (a) $285,000,000 and (b) the
Total Consideration required to be paid pursuant to the Merger Agreement and
(ii) to be made on any Business Day (the "Borrowing Date") on or before the
earlier to occur of (y) the Effective Date (as defined in the Merger Agreement)
and (z) March 31, 2002. Amounts borrowed and repaid or prepaid may not be
reborrowed.
SECTION 2.02. Making the Advance. (a) The Advance shall be made on notice
(a "Notice of Borrowing"), given by the Borrower to the Agent not later than
10:00 A.M. (New York City time) (a) two Business Days prior to the requested
Borrowing Date, if the Advance is to be initially a Eurodollar Rate Advance and
(b) on the Borrowing Date, otherwise), specifying (i) the amount to be borrowed,
(ii) the Borrowing Date, (iii) whether the Advance is to be a Eurodollar Rate
Advance or a Base Rate Advance and (iv) if the Advance is to be initially a
Eurodollar Rate Advance, the length of the initial Interest Period therefor.
Upon receipt of any such notice from the Borrower, the Agent shall promptly
notify the Initial Lender thereof. Upon the satisfaction of the conditions
precedent set forth herein, the Initial Lender shall on the Borrowing Date, make
available to the Agent at the Agent's Account, in same day funds, the amount of
the Advance. After the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will make such funds
available to the Borrower by transferring the proceeds of the Advance to the
Paying Agent at the Paying Agent's Account.
(b) The Notice of Borrowing shall be irrevocable and binding on the
Borrower. The Borrower shall indemnify the Initial Lender against any loss, cost
or expense incurred by the Initial Lender as a result of any failure to fulfill
on or before the proposed date specified for the Advance the applicable
conditions set forth in Article III, including any loss actually incurred by the
Initial Lender (including loss of anticipated profits), cost or expense incurred
by reason of the liquidation or reemployment of deposits or other funds acquired
by the Initial Lender to fund the Advance when the Advance, as a result of such
failure, is not made on such date.
SECTION 2.03. Fees. The Borrower shall pay to the Initial Lender an upfront
fee in the amount of $890,000. Once paid, the fees or any part thereof payable
hereunder shall not be refundable under any circumstances.
SECTION 2.04. Repayment of Advance. The Borrower shall repay to the Agent
for the ratable account of the Lenders on the Maturity Date the aggregate
outstanding principal amount of the Advance then outstanding.
SECTION 2.05. Prepayments. (a) Optional. The Borrower may, upon at least
three Business Days' notice to the Agent, stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding aggregate principal amount of the Advance
in whole or in part, together with accrued interest to the date of such
prepayment
14
on the aggregate principal amount prepaid; provided, however, that (i) each
partial prepayment shall be in an aggregate principal amount of $10,000,000 or
an integral multiple of $5,000,000 in excess thereof and (ii) if any prepayment
of the Advance made when the Advance is a Eurodollar Rate Advance is made on a
date other than the last day of an Interest Period, the Borrower shall also pay
any amounts owing pursuant to Section 8.04(c).
(b) Mandatory. (i) The Borrower shall, upon receipt by it or PDMB of any
distribution or payment in respect of the Collateral, PDMB Collateral or any
part thereof (including any payment received in connection with the Asset Sale
Escrow Agreement), immediately apply 100% of the amount of such distribution or
payment to prepay the Advance. If any such distribution or payment is received
by the Agent from any third party, the Agent is hereby authorized and instructed
to apply such amounts to prepay the Advance as set forth in clause (iii) below.
(ii) All prepayments made under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the
principal amount prepaid. If the Advance is a Eurodollar Rate Advance at
the time of prepayment and a prepayment is required to be made under this
subsection (b) on a date other than the last day of an Interest Period, the
Borrower shall be obligated to pay the Lenders any amounts owing pursuant
to Section 8.04(c).
(iii) All amounts received by the Agent pursuant to Section 2.05(b)
shall be applied (A) first, to the payment of all amounts due, if any,
pursuant to Section 8.04, (B) second, to pay accrued interest on the
principal amount of the Advance being prepaid and (C) third, to prepay the
Advance.
(c) Notice. Each prepayment shall be accompanied by written notice to the
Agent of the provision of Section 2.05(a) or 2.05(b) under which such prepayment
is to be made, and identifying the source of the proceeds of such prepayment.
SECTION 2.06. Interest. (a) Scheduled Interest. (i) For each period during
which the Advance is a Eurodollar Rate Advance, the Borrower shall pay interest
on the unpaid principal amount of the Advance from the date the Advance became a
Eurodollar Rate Advance until the Advance is Converted into a Base Rate Advance
or paid in full, at the rate per annum equal at all times during each Interest
Period to the sum of (x) the Eurodollar Rate for such Interest Period plus (y)
the Applicable Margin, payable in arrears on the last day of such Interest
Period and on the date the Advance is Converted into a Base Rate Advance or paid
in full.
(ii) For each period during which the Advance is a Base Rate Advance,
the Borrower shall pay interest on the unpaid principal amount of the
Advance from the date the Advance became a Base Rate Advance until the
Advance is paid in full or Converted into a Eurodollar Rate Advance, at a
rate per annum equal at all times to the Base Rate in effect from time to
time, payable in arrears on the last day of each calendar month and on the
date such Base Rate Advance is paid in full or Converted into a Eurodollar
Rate Advance.
(b) Default Interest. Upon the occurrence and during the continuance of an
Event of Default and at the election of the Required Lenders upon the occurrence
and during the continuance of
14
15
any other Default, the Borrower shall pay interest on (i) the unpaid principal
amount of the Advance owing to each Lender, payable in arrears on the dates
referred to in clause (a)(i) or (ii) above, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on the
Advance pursuant to clause (a)(i) or (ii) above, and (ii) to the fullest extent
permitted by law, the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid on the
Advance.
SECTION 2.07. Interest Rate Determination. (a) If any one or more of the
Reference Banks shall not furnish such timely information to the Agent for the
purpose of determining each Eurodollar Rate, the Agent shall determine such
interest rate on the basis of timely information furnished by the remaining
Reference Banks. The Agent shall give prompt notice to the Borrower and the
Lenders of the applicable interest rate determined by the Agent for purposes of
Section 2.06(a), and the rate, if any, furnished by each Reference Bank for the
purpose of determining the interest rate under Section 2.06(a)(i).
(b) If, at any time when the Advance is a Eurodollar Rate Advance, the
Required Lenders notify the Agent that the Eurodollar Rate for any Interest
Period for such Advance will not adequately reflect the cost to such Required
Lenders of funding or maintaining their respective share of the Advance for such
Interest Period, the Agent shall forthwith so notify the Borrower and the
Lenders, whereupon the Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance.
(c) On the date on which the aggregate unpaid principal amount of the
Advance shall be reduced, by payment or prepayment or otherwise, to less than
$10,000,000, if the Advance is a Eurodollar Rate Advance, it will automatically
Convert into a Base Rate Advance.
(d) Upon the occurrence and during the continuance of any Event of Default,
if the Advance is a Eurodollar Rate Advance, it will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
(e) If, at any time after the Agent has appointed more than two Reference
Banks, fewer than two Reference Banks furnish timely information to the Agent
for determining the Eurodollar Rate for an Interest Period,
(i) the Agent shall forthwith notify the Borrower and the Lenders that
the interest rate cannot be determined for such Interest Period, and
(ii) the Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate Advance.
SECTION 2.08. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
16
there shall be any increase in the cost to any Lender of funding or maintaining
the Advance as a Eurodollar Rate Advance (excluding for purposes of this Section
2.08 any such increased costs resulting from (i) Taxes or Other Taxes (as to
which Section 2.10 shall govern) and (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or by the
foreign jurisdiction or state under the laws of which such Lender is organized
or has its Applicable Lending Office or any political subdivision thereof), then
the Borrower shall from time to time, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender
additional amounts sufficient to compensate such Lender for such increased cost;
provided, however, that a Lender claiming additional amounts under this Section
2.08(a) agrees to use reasonable efforts (consistent with its internal policy
and legal and regulatory restrictions) to designate a different Applicable
Lending Office if the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost that may thereafter accrue and would
not, in the reasonable judgment of such Lender, be otherwise disadvantageous to
such Lender. A certificate as to the amount of such increased cost, submitted to
the Borrower by such Lender, shall be conclusive and binding for all purposes,
absent manifest error.
(b) If the Advance is a Eurodollar Rate Advance and the Required Lenders
notify the Agent that the Eurodollar Rate for the relevant Interest Period will
not adequately reflect the cost to such Lenders of funding or maintaining their
respective share of the Advance for such Interest Period, the Agent shall
forthwith so notify the Borrower and the Lenders, whereupon the Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance.
(c) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Applicable
Lending Office to continue to fund or maintain its respective share of the
Advance as a Eurodollar Rate Advance hereunder, then, on notice thereof and
demand therefor by such Lender to the Borrower through the Agent, if the Advance
is a Eurodollar Rate Advance, it will automatically, upon demand, Convert into a
Base Rate Advance; provided, however, that, before making any such demand, such
Lender agrees to use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different Applicable Lending
Office if the making of such a designation would allow such Lender or its
Applicable Lending Office to continue to fund or maintain its respective share
of the Advance as a Eurodollar Rate Advance and would not, in the judgment of
such Lender, be otherwise disadvantageous to such Lender.
SECTION 2.09. Payments and Computations. (a) The Borrower shall make each
payment hereunder and under the Notes, irrespective of any right of counterclaim
or set-off, not later than 11:00 A.M. (New York City time) on the day when due
in U.S. dollars to the Agent at the Agent's Account in same day funds. The Agent
will promptly thereafter cause like funds to be distributed (i) if such payment
by the Borrower is in respect of principal, interest or any other Obligation
then payable hereunder and under the Notes to more than one Lender, to such
Lenders for the account of their respective Applicable Lending Offices ratably
in accordance with the amounts of such respective Obligations then payable to
such Lenders and (ii) if such payment by the Borrower is in respect of any
Obligation then payable hereunder to one Lender, to such Lender for the account
of its Applicable
17
Lending Office, in each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance and recording of
the information contained therein in the Register pursuant to Section 8.07(d),
from and after the effective date of such Assignment and Acceptance, the Agent
shall make all payments hereunder and under the Notes in respect of the interest
assigned thereby to the Lender assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the extent
payment owed to such Lender is not made when due hereunder or, in the case of a
Lender, under the Note held by such Lender, to charge from time to time against
any or all of the Borrower's accounts with such Lender any amount so due.
(c) All computations of interest and fees shall be made by the Agent on the
basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest, fees or commissions are payable. Each determination by the
Agent of an interest rate, fee or commission hereunder shall be conclusive and
binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall be stated to be
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest; provided, however, that, if such
extension would cause payment of interest on or principal of a Eurodollar Rate
Advance to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
(e) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to any Lender hereunder that the Borrower
will not make such payment in full, the Agent may assume that the Borrower has
made such payment in full to the Agent on such date and the Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender on
such due date an amount equal to the amount then due such Lender. If and to the
extent the Borrower shall not have so made such payment in full to the Agent,
each such Lender shall repay to the Agent forthwith on demand such amount
distributed to such Lender together with interest thereon, for each day from the
date such amount is distributed to such Lender until the date such Lender repays
such amount to the Agent, at the Federal Funds Rate.
SECTION 2.10. Taxes. (a) Any and all payments by the Borrower hereunder or
under the Notes shall be made, in accordance with Section 2.09, free and clear
of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding, in the case of each Lender and the Agent, taxes that are
imposed on its overall net income by the United States and taxes that are
imposed on its overall net income (and franchise taxes imposed in lieu thereof)
by the state or foreign jurisdiction under the laws of which such Lender or the
Agent (as the case may be) is organized or any political subdivision thereof
and, in the case of each Lender, taxes that are imposed on its overall net
income (and franchise taxes imposed in lieu thereof) by the state or foreign
jurisdiction of such Lender's Applicable Lending Office
18
or any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as "Taxes").
If the Borrower shall be required by law to deduct any Taxes from or in respect
of any sum payable hereunder or under any Note to any Lender or the Agent, (i)
the sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.10) such Lender or the Agent (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property or similar taxes, charges or levies that arise
from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and the Agent for and hold it
harmless against the full amount of Taxes and Other Taxes, and for the full
amount of taxes of any kind imposed by any jurisdiction on amounts payable under
this Section 2.10, imposed on or paid by such Lender or the Agent (as the case
may be) and any liability (including penalties, additions to tax, interest and
expenses) arising therefrom or with respect thereto. This indemnification shall
be made within 30 days from the date such Lender or the Agent (as the case may
be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the Borrower
shall furnish to the Agent, at its address referred to in Section 8.02, the
original or a certified copy of a receipt evidencing such payment. In the case
of any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Agent, at such address, an
opinion of counsel acceptable to the Agent stating that such payment is exempt
from Taxes. For purposes of this subsection (d) and subsection (e), the terms
"United States" and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a jurisdiction outside the
United States shall, on or prior to the date of its execution and delivery of
this Agreement in the case of the Initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as requested in writing by
the Borrower (but only so long thereafter as such Lender remains lawfully able
to do so), provide each of the Agent and the Borrower with two original Internal
Revenue Service forms 1001 or 4224 or (in the case of a Lender that has
certified in writing to the Agent that it is not a "bank" as defined in Section
881(c)(3)(A) of the Internal Revenue Code) form W-8 (and, if such Lender
delivers a form W-8, a certificate representing that such Lender is not a "bank"
for purposes of Section 881(c) of the Internal Revenue Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) of the Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Internal Revenue
Code)), as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender is exempt from or entitled
to a
19
reduced rate of United States withholding tax on payments pursuant to this
Agreement or the Notes or, in the case of a Lender providing a form W-8,
certifying that such Lender is a foreign corporation, partnership, estate or
trust. If the forms provided by a Lender at the time such Lender first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from Taxes unless and until such Lender provides the appropriate form certifying
that a lesser rate applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed by such form;
provided, however, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender becomes a party to this Agreement, the Lender
assignor was entitled to payments under subsection (a) in respect of United
States withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender assignee
on such date. If any form or document referred to in this subsection (e)
requires the disclosure of information, other than information necessary to
compute the tax payable and information required on the date hereof by Internal
Revenue Service form 1001, 4224 or W-8 (or the related certificate described
above), that the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Borrower and shall not be obligated to include
in such form or document such confidential information.
(f) For any period with respect to which a Lender has failed to provide the
Borrower with the appropriate form described in subsection (e) above (other than
if such failure is due to a change in law occurring after the date on which a
form originally was required to be provided or if such form otherwise is not
required under subsection (e) above), such Lender shall not be entitled to
indemnification under subsection (a) or (c) with respect to Taxes imposed by the
United States by reason of such failure; provided, however, that should a Lender
become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall take such steps as such Lender shall reasonably
request to assist such Lender to recover such Taxes.
SECTION 2.11. Sharing of Payments, Etc. If any Lender shall obtain at any
time any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) (a) on account of Obligations due and payable to
such Lender hereunder and under the Notes at such time (other than pursuant to
Section 2.10 or 8.04(c)) in excess of its ratable share (according to the
proportion of (i) the amount of such Obligations due and payable to such Lender
at such time to (ii) the aggregate amount of the Obligations due and payable to
all Lenders hereunder and under the Notes at such time) of payments on account
of the Obligations due and payable to all Lenders hereunder and under the Notes
at such time obtained by all the Lenders at such time or (b) on account of
Obligations owing (but not due and payable) to such Lender hereunder and under
the Notes at such time (other than pursuant to Section 2.10 or 8.04(c)) in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations owing to such Lender at such time to (ii) the aggregate amount
of the Obligations owing (but not due and payable) to all Lenders hereunder and
under the Notes at such time) of payments on account of the Obligations owing
(but not due and payable) to all Lenders hereunder and under the Notes at such
time obtained by all of the Lenders at such time, such Lender shall forthwith
purchase from the other Lenders such participations in the Obligations due and
payable or owing to them, as the case may be, as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment
20
is thereafter recovered from such purchasing Lender, such purchase from each
other Lender shall be rescinded and such other Lender shall repay to the
purchasing Lender the purchase price to the extent of such Lender's ratable
share (according to the proportion of (i) the purchase price paid to such Lender
to (ii) the aggregate purchase price paid to all Lenders) of such recovery
together with an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such other Lender's required repayment to (ii)
the total amount so recovered from the purchasing Lender) of any interest or
other amount paid or payable by the purchasing Lender in respect of the total
amount so recovered. The Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this Section 2.11 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.
SECTION 2.12. Use of Proceeds. The proceeds of the Advance shall be
available (and the Borrower agrees that it shall use such proceeds) solely to
pay to the Paying Agent the Total Consideration pursuant to the terms of the
Merger Agreement.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to the Making of the Advance. The
obligation of the Initial Lender to make the Advance hereunder is subject to the
satisfaction of the following conditions precedent before or concurrently with
the making of such Advance:
(a) Between the date of this Agreement and the date of the Borrowing, there
has been no change in the corporate and legal structure and capitalization of
the Borrower, PDMI or PDMB, including the terms and conditions of the charter,
bylaws and each class of capital stock of the Borrower, PDMI or PDMB and of each
agreement or instrument relating to such structure or capitalization.
(b) There shall exist no action, suit, investigation, litigation or
proceeding affecting the Borrower, PDMI, PDMB or any of their Subsidiaries
pending or threatened before any court, governmental agency or arbitrator that
(i) with respect to the Borrower, could reasonably be expected to have a
Material Adverse Effect, (ii) with respect to PDMI, could reasonably be expected
to have a material adverse effect on the business, results of operations or
prospects of PDMI, (iii) with respect to PDMB, could reasonably be expected to
have a material adverse effect on the business, results of operations or
prospects of PDMB or (iv) purports to affect the legality, validity or
enforceability of any Loan Document, any Transaction Document or the
consummation of the transactions contemplated thereby.
(c) The Borrower shall have paid all accrued fees and expenses of the Agent
and the Initial Lender (including the accrued fees and expenses of counsel to
the Agent).
(d) The Agent shall have received (i) evidence that the Articles of Merger
(as defined in the Merger Agreement and in form and substance satisfactory to
the Agent in its sole discretion) have been pre-cleared for filing with the
Department of State of the Commonwealth of Pennsylvania and (ii)
21
evidence satisfactory to it in its sole discretion that such Articles of Merger
will be filed with the Department of State of the Commonwealth of Pennsylvania
immediately after the Agent has made the Advance available to the Borrower.
(e) The Minimum Condition (as defined in the Merger Agreement) shall have
been satisfied and the Borrower shall have instructed the Paying Agent to accept
the common shares of PDMI for payment in accordance with the Merger Agreement.
(f) The Expiration Date (as defined in the Merger Agreement) has occurred.
(g) The Agent shall have received on or before the day of the Borrowing the
following, in form and substance satisfactory to the Agent (unless otherwise
specified):
(i) The Note payable to the order of the Initial Lender, dated the
date of the Borrowing, duly executed by the Borrower.
(ii) An original counterpart of this Agreement, duly executed by the
Borrower.
(iii) An original counterpart of the Security Agreement.
(iv) An original counterpart of the PDMB Guaranty, to become effective
immediately after the effectiveness of the Merger.
(v) An original counterpart of the PDMB Security Agreement, to become
effective immediately after the effectiveness of the Merger.
(vi) An original counterpart of the Merger Agreement, duly executed by
the parties thereto.
(vii) An original counterpart of the Asset Sale Escrow Agreement, duly
executed by the parties thereto accompanied by a certificate from each of
the Buyer and the Sellers (each as therein defined) (i) reconfirming that
the representations and warranties made in the Escrow Agreement without any
exceptions (ii) confirming that all Purchased Escrowed Items (as defined
therein) have been delivered to the Escrow Agent (as defined therein).
(viii) An original counterpart of the Asset Purchase Agreement, duly
executed by the parties thereto.
(ix) Evidence satisfactory to the Agent of all recordings, filings and
other actions (including each consent required thereby) of or with respect
to the Security Agreement that the Agent may deem necessary or desirable in
order to perfect and protect the Liens created thereby.
22
(x) A favorable opinion of the counsel for the Borrower, in form and
substance reasonably satisfactory to the Agent addressing, among other
things, (i) the fact that this Agreement and the Security Agreement will,
upon the effectiveness of the Merger, be the legal, valid and binding
obligations of the surviving corporation in the merger, enforceable against
such entity in accordance with their terms and (ii) the fact that,
effective immediately after the effectiveness of the Merger, each of the
PDMB Guaranty and the PDMB Security Agreement will be the legal, valid and
binding obligations of PDMB, enforceable against PDMB in accordance with
its terms.
(xi) A favorable opinion of counsel for PDMI, in form and substance
reasonably satisfactory to the Agent addressing, among other things, the
fact (i) that the Asset Sale Escrow Agreement is the legal, valid and
binding obligations of PDMI, enforceable against PDMI in accordance with
its terms and (ii) upon filing the Articles of Merger (as defined in the
Merger Agreement), (A) the Plan of Merger (as defined in the Merger
Agreement) will be effective to merge PDMI into the Borrower and (B) all
obligations of PDMI shall be the legal, valid and binding obligations of
the Borrower (the "Merger Opinion").
(xii) The written consents of the Board of Directors and sole
shareholder of the Borrower attached to the Merger Opinion, each duly
signed by the appropriate Person and each effective upon the acceptance for
payment by the Borrower of shares of common stock of PDMI in connection
with the Merger or the Offer.
(xiii) A favorable opinion of counsel for PDMB, in form and substance
reasonably satisfactory to the Agent addressing, among other things, the
fact that the Asset Sale Escrow Agreement is the legal, valid and binding
obligations of PDMB, enforceable against PDMB in accordance with its terms.
(xiv) A favorable opinion of counsel for Asset Buyer, in form and
substance reasonably satisfactory to the Agent addressing, among other
things, the fact that the Asset Sale Escrow Agreement is the legal, valid
and binding obligations of Asset Buyer, enforceable against Asset Buyer in
accordance with its terms.
(xv) Such other approvals, opinions or documents as the Agent or
Initial Lender may reasonably request.
(h) The Escrow Agent (as defined in the Asset Sale Escrow Agreement) shall
have received (i) the Escrowed Amount, (ii) the Purchase Escrowed Items (as
defined in the
23
Asset Sale Escrow Agreement), (iii) the Buyer's Satisfaction Certificate and
(iv) the Seller's Satisfaction Certificate.
(i) The representation and warranties of the parties to the Asset Sale
Escrow Agreement shall be true and correct in all respects.
(j) The sum of the Escrow Amount plus the PDMI Cash Collateral shall not be
less than the Minimum Required Collateral Value.
(k) Each of the representations and warranties made by the Borrower in or
pursuant to the Loan Documents and any other Transaction Documents shall be true
and correct on and as of such date as if made on and as of such date.
(l) No Default or Event of Default shall have occurred and be continuing on
such date or immediately after giving effect to the Advance.
(m) No default shall exist by Borrower, Ironbridge or PDMI under the Merger
Agreement or by any party under the Asset Purchase Agreement or Asset Sale
Escrow Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The Borrower
represents and warrants as follows:
(a) Each of the Borrower, PDMI and PDMB (i) is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation and (ii) has all requisite corporate power and authority
(including all governmental licenses, permits and other approvals) (A) to enter
into and perform its obligations under the Transaction Documents to which it is
a party and (B) to own or lease and operate its properties and to carry on its
business as now conducted and as proposed to be conducted.
(b) The execution, delivery and performance by the Borrower, PDMI and PDMB
of the Transaction Documents to which it is or is to be a party, and the
consummation of the other transactions contemplated hereby, are within such
Person's corporate powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene the such Person's by-laws, (ii) violate any
law (including the Securities Exchange Act of 1934 and the Racketeer Influenced
and Corrupt Organizations Chapter of the Organized Crime Control Act of 1970),
rule, regulation (including Regulation X of the Board of Governors of the
Federal Reserve System), order, writ, judgment, injunction, decree,
determination or award, (iii) conflict with or result in the breach of, or
constitute a default under, any contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument binding on or affecting such Person or
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(iv) except for the Liens created thereby, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of such
Person. None of the Borrower, PDMI or PDMB is in violation of any such law,
rule, regulation, order, writ, judgment, injunction, decree, determination or
award or in breach of any such contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument, the violation or breach of which could
reasonably be expected to have a Material Adverse Effect.
(c) Other than those filings which have been made or will be made prior to
the making of the Advance, no authorization or approval or other action by, and
no notice to or filing with, any governmental authority or regulatory body or
any other third party is required for (i) the due execution, delivery,
recordation, filing or performance by the Borrower, PDMI and PDMB of the
Transaction Documents to which it is or will be a party, or for the consummation
of the other transactions contemplated hereby, (ii) the grant by the Borrower,
PDMI and PDMB of the Liens granted by such Person pursuant to the Transaction
Documents, (iii) the perfection or maintenance of the Liens created by the
Transaction Documents (including the first priority nature thereof) or (iv) the
exercise by the Agent or any Lender any of their rights under or remedies under
or in respect of the Transaction Documents, the other Collateral pursuant to the
Security Agreement or the PDMB Collateral pursuant to the PDMB Security
Agreement.
(d) Each Transaction Document to which the Borrower, PDMI and/or PDMB is or
is to be party when delivered hereunder will have been, duly executed and
delivered by the such Person. This Agreement is, and each other Transaction
Document to which the Borrower, PDMI and/or PDMB is party or is to be party when
delivered hereunder will be, the legal, valid and binding obligation of such
Person, enforceable against such Person in accordance with its terms.
(e) There is no action, suit, investigation, litigation or proceeding
affecting the Borrower, PDMI or PDMB, pending or threatened before any court,
governmental agency or arbitrator.
(f) None of the Borrower, PDMI or PDMB is engaged in the business of
extending credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of the Advance will be used in violation of Regulation U or any other
regulation governing Margin Stock.
(g) The Security Agreement creates a valid and perfected first priority
security interest in the Collateral, securing the payment of the Secured
Obligations, and all filings and other actions necessary or desirable to perfect
and protect such security interest have been duly taken. Upon the consummation
of the transactions contemplated by the Transaction Documents, the Borrower will
be the legal and beneficial owner of the Collateral subject to the Security
Agreement free and clear of any Lien, except for the liens and security
interests created or permitted under the Transaction Documents.
(h) Immediately after the effectiveness of the Merger, the PDMB Security
Agreement will, create a valid and perfected first priority security interest in
the PDMB
25
Collateral, securing the payment of the Secured Obligations (as defined
in the PDMB Security Agreement), and all filings and other actions necessary or
desirable to perfect and protect such security interest have been, or will upon
the effectiveness thereof be, duly taken. Upon the consummation of the
transactions contemplated by the Transaction Documents, PDMB will be the legal
and beneficial owner of the PDMB Collateral subject to the PDMB Security
Agreement free and clear of any Lien, except for the liens and security
interests created or permitted under the Transaction Documents.
(i) None of the Borrower, PDMB or PDMI is an "investment company," or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended (the "1940 Act"). Neither the making of the Advance, nor the
application of the proceeds or repayment thereof by the Borrower, nor the
consummation of the other transactions contemplated hereby, will violate any
provision of the 1940 Act or any rule, regulation or order of the Securities and
Exchange Commission thereunder.
(j) Each of the Borrower, PDMI and PDMB is Solvent.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as the Advance shall remain
unpaid, the Borrower each of its Subsidiaries and any successors to the Borrower
or its Subsidiaries by merger or otherwise will:
(a) Compliance with Laws, Etc. Comply in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to include
compliance with ERISA and the Racketeer Influenced and Corrupt Organizations
Chapter of the Organized Crime Control Act of 1970.
(b) Payment of Taxes, Etc. Pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if unpaid,
might by law become a Lien upon its property; provided, however, that the
Borrower shall not be required to pay or discharge any such tax, assessment,
charge or claim that is being contested in good faith and by proper proceedings
and as to which appropriate reserves are being maintained, unless and until any
Lien resulting therefrom attaches to its property and becomes enforceable
against its other creditors.
(c) Preservation of Existence, Etc. Preserve and maintain its existence,
legal structure, legal name, rights (charter and statutory), permits, licenses,
approvals, privileges and franchises.
(d) Keeping of Books. Keep proper books of record and account, in which
full and correct entries shall be made of all financial transactions and the
assets and business of
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the Borrower in accordance with generally accepted accounting principles in
effect from time to time.
(e) Performance of Transaction Documents. Perform and observe all of the
terms and provisions of each Transaction Document to be performed or observed by
it, maintain each such Transaction Document in full force and effect, enforce
such Transaction Document in accordance with its terms, take all such action to
such end as may be from time to time requested by the Agent and, upon request of
the Agent, make to each other party to each such Transaction Document such
demands and requests for information and reports or for action as the Borrower,
PDMI or PDMB is entitled to make under such Transaction Document.
(f) Exercise of Rights under the Collateral. Fully enforce its rights under
the Collateral, including taking any action requested by the Agent in connection
therewith.
SECTION 5.02. Negative Covenants. So long as any portion of the Advance
shall remain unpaid, the Borrower will not and, after the Merger has become
effective, will not allow PDMI or PDMB to, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist any Lien (other
than the Liens created under the Security Agreement and the PDMB Security
Agreement) on or with respect to any of its properties (other than the Capital
Stock of PDMI) of any character (including accounts) whether now owned or
hereafter acquired, or sign or file or suffer to exist under the Uniform
Commercial Code of any jurisdiction, a financing statement that names the
Borrower as debtor, or sign or suffer to exist any security agreement
authorizing any secured party thereunder to file such financing statement, or
assign any accounts or other right to receive income.
(b) Debt. Create, incur, assume or suffer to exist any Debt other than (i)
Debt pursuant to this Agreement.
(c) Lease Obligations. Create, incur, assume or suffer to exist any
obligations as lessee for the rental or hire of real or personal property of any
kind.
(d) Mergers, Etc. Merge into or consolidate with any Person or permit any
Person to merge into it, other than in accordance with the Merger.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise dispose of
any assets or grant any option or other right to purchase, lease or otherwise
acquire any assets other than pursuant to the Transaction Documents.
(f) Investments in Other Persons. Make or hold any Investment in any Person
other than (i) Investments by the Borrower in PDMI, (ii) Investments of PDMI in
PDMB and (iii) Investments by the Borrower and PDMB in Cash Equivalents.
(g) Distributions, Etc. Make any Distribution, other than pursuant to the
Transaction Documents.
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(h) Change in Nature of Business. Without the prior written consent of the
Lenders (which consent shall not be unreasonably withheld or delayed), engage in
any business activities other than the transactions contemplated or permitted by
the Transaction Documents.
(i) Charter Amendments. Amend its certificate of incorporation or bylaws,
except as permitted by the Merger Agreement.
(j) Amendment, Etc. of Transaction Documents. Cancel or terminate any
Transaction Document or consent to or accept any cancellation or termination
thereof, amend, modify or change in any manner any term or condition of any
Transaction Document or give any consent, waiver or approval thereunder, waive
any default under or any breach of any term or condition of any Transaction
Document, agree in any manner to any other amendment, modification or change of
any term or condition of any Transaction Document or take any other action in
connection with any Transaction Document that would impair the value of the
interest or rights of the Borrower, PDMI or PDMB thereunder or that would impair
the rights or interests of the Agent or any Lender.
SECTION 5.03. Reporting Requirements. So long as the Advance shall remain
unpaid, the Borrower will furnish to the Lenders:
(a) Default Notice. As soon as possible and in any event within two days
after the occurrence of each Default or any event, development or occurrence
reasonably likely to have a Material Adverse Effect continuing on the date of
such statement, a statement of the chief financial officer of the Borrower
setting forth details of such Default and the action that the Borrower has taken
and proposes to take with respect thereto.
(b) Financials. As soon as available and in any event within 45 days after
each fiscal quarter of the Borrower and 90 days after the end of each fiscal
year of the Borrower, consolidated and consolidating statements of income,
retained earnings and cash flow of the Borrower and its consolidated
Subsidiaries for such period and the related consolidated and consolidating
balance sheets as at the end of such period.
(c) Litigation. Promptly after the commencement thereof, notice of all
actions, suits, investigations, litigation and proceedings before any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, affecting the Borrower, PDMI or PDMB of the type described
in Section 4.01(e).
(d) Transaction Document Notices. Promptly upon receipt thereof, copies of
all notices, requests and other documents received by the Borrower under or
pursuant to any Transaction Document regarding or related to any breach or
default by any party thereto or any other event that could impair the value of
the interests or the rights of the Borrower or otherwise have a Material Adverse
Effect and copies of any amendment, modification or waiver of any provision of
any Transaction Document and, from time to time upon request by the Agent, such
28
information and reports regarding the Transaction Documents as the Agent may
reasonably request.
(e) Other Information. Such other information respecting the business,
condition (financial or otherwise), operations, performance, properties or
prospects of the Borrower, PDMI or PDMB as any Lender (through the Agent) may
from time to time reasonably request.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events ("Events of
Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of the Advance when
the same shall become due and payable or (ii) the Borrower shall fail to pay any
interest on the Advance or shall fail to make any other payment under any
Transaction Document in accordance with the terms of such Transaction Document,
in each case under this clause (ii) within three Business Days after the same
becomes due and payable; or
(b) any representation or warranty made by the Borrower (or any of its
officers) under or in connection with any Transaction Document shall prove to
have been incorrect in any material respect when made; or
(c) the Borrower, PDMI or PDMB shall fail to perform or observe any other
term, covenant or agreement contained herein or in any other Transaction
Document on its part to be performed or observed, unless such failure could not
result in a Material Adverse Effect; or
(d) the Borrower shall generally not pay its debts as such debts become
due, or shall admit in writing its inability to pay its debts generally, or
shall make a general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
receiver, trustee, or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted against it
(but not instituted by it) that is being diligently contested by it in good
faith, either such proceeding shall remain undismissed or unstayed for a period
of 30 days or any of the actions sought in such proceeding (including the entry
of an order for relief against, or the appointment of a receiver, trustee,
custodian or other similar official for, it or any substantial part of its
property) shall occur; or the Borrower shall take any corporate action to
authorize any of the actions set forth above in this subsection (d); or
29
(e) the occurrence of any of the events set forth in subparagraph (d) with
respect to PDMI, PDMB or Asset Buyer; or
(f) any judgment or order for the payment of money in excess of $500,000
shall be rendered against the Borrower, PDMI or PDMB and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order or (ii) there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) any non-monetary judgment or order shall be rendered against the
Borrower, PDMI or PDMB that could have a Material Adverse Effect, and there
shall be any period of 10 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; or
(h) any provision of any Transaction Document to which the Borrower, PDMI
or PDMB is a party after delivery thereof pursuant to Section 3.01 shall for any
reason cease to be valid and binding on or enforceable against the Borrower,
PDMI or PDMB, as applicable, or the Borrower, PDMI or PDMB shall so state in
writing; or
(i) the Security Agreement after delivery thereof pursuant to Section 3.01
shall for any reason (other than pursuant to the express terms thereof) cease to
create a valid and perfected first priority lien on and security interest in the
Collateral purported to be covered thereby or the Borrower or any successor, by
merger or otherwise, to the Borrower shall so assert in writing; or
(j) the PDMB Security Agreement after delivery thereof pursuant to Section
3.01 shall for any reason (other than pursuant to the express terms thereof)
cease to create a valid and perfected first priority lien on and security
interest in the PDMB Collateral purported to be covered thereby or the Borrower
or any successor, by merger or otherwise, to the Borrower or PDMB shall so
assert in writing; or
(k) the Borrower shall fail to pay any principal of, premium or interest on
or any other amount payable in respect of any Debt or notional amount of at
least $500,000 (but excluding Debt outstanding hereunder) of the Borrower, when
the same becomes due and payable (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any Debt and shall
continue after the applicable grace period, if any, specified in such agreement
or instrument, if the effect of such event or condition is to accelerate, or to
permit the acceleration of, the maturity of such Debt or otherwise to cause, or
to permit the holder thereof to cause, such Debt to mature; or any such Debt
shall be declared to be due and payable or required to be prepaid or redeemed
(other than by a regularly scheduled prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be
required to be made, in each case prior to the stated maturity thereof; or
30
(l) the occurrence of any of the events set forth in subparagraph (k) with
respect to PDMI or PDMB; or
(m) there shall occur in the reasonable judgment of the Required Lenders
any Material Adverse Effect; then, and in any such event, the Agent shall at the
request, or may with the consent, of the Required Lenders, (A) by notice to the
Borrower, terminate its obligation to make any part of the Advance, declare the
Notes, all interest thereon and all other amounts payable under this Agreement
and the other Transaction Documents to be forthwith due and payable, whereupon
the Notes, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower or any successor, by merger or otherwise, to the
Borrower under the Federal Bankruptcy Code, such obligations shall automatically
terminate and the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
ARTICLE VII
THE AGENT
SECTION 7.01. Authorization and Action. Each Lender (in its capacity as a
Lender) hereby appoints and authorizes the Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement and
the other Transaction Documents as are delegated to the Agent by the terms
hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto. As to any matters not expressly provided for by the
Transaction Documents (including enforcement or collection of the Notes), the
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding upon all Lenders and all holders
of Notes; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to this
Agreement or applicable law. The Agent agrees to give to each Lender prompt
notice of each notice given to it by the Borrower pursuant to the terms of this
Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable for any action taken or
omitted to be taken by it or them under or in connection with the Transaction
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (a) may treat
the payee of any Note as the holder thereof until the Agent receives and accepts
an Assignment and Acceptance entered into by the Lender that is the payee of
such Note,
31
as assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(b) may consult with legal counsel (including counsel for the Borrower),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender and shall not be responsible to any
Lender for any statements, warranties or representations (whether written or
oral) made in or in connection with the Transaction Documents; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Transaction Document on the
part of the Borrower or to inspect the property (including the books and
records) of the Borrower; (e) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Transaction Document or
any other instrument or document furnished pursuant thereto; and (f) shall incur
no liability under or in respect of any Transaction Document by acting upon any
notice, consent, certificate or other instrument or writing (which may be by
telegram, telecopy or telex) believed by it to be genuine and signed or sent by
the proper party or parties.
SECTION 7.03. Rabobank and Affiliates. With respect to the Advance and the
Notes issued to it, Rabobank shall have the same rights and powers under the
Transaction Documents as any other Lender and may exercise the same as though it
were not the Agent; and the term "Lender" or "Lenders" shall, unless otherwise
expressly indicated, include Rabobank in its individual capacity. Rabobank and
its affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, the Borrower and any Person who may do business
with or own securities of the Borrower, all as if Rabobank were not the Agent
and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon the Agent or any other Lender and based
on such documents and other information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. Each Lender severally agrees to indemnify
the Agent (to the extent not promptly reimbursed by the Borrower) from and
against such Lender's ratable share (determined as provided below) of any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Agent in any way
relating to or arising out of the Transaction Documents or any action taken or
omitted by the Agent under the Transaction Documents; provided, however, that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent
32
promptly upon demand for its ratable share of any costs and expenses (including
fees and expenses of counsel) payable by the Borrower under Section 8.04, to the
extent that the Agent is not promptly reimbursed for such costs and expenses by
the Borrower. For purposes of this Section 7.05, the Lenders' respective ratable
shares of any amount shall be determined, at any time, according to the sum of
the aggregate principal amount of the Advance outstanding at such time and owing
to the respective Lenders. The failure of any Lender to reimburse the Agent
promptly upon demand for its ratable share of any amount required to be paid by
the Lender to the Agent as provided herein shall not relieve any other Lender of
its obligation hereunder to reimburse the Agent for its ratable share of such
amount, but no Lender shall be responsible for the failure of any other Lender
to reimburse the Agent for such other Lender's ratable share of such amount.
Without prejudice to the survival of any other agreement of any Lender
hereunder, the agreement and obligations of each Lender contained in this
Section 7.05 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under the other Transaction Documents.
SECTION 7.06. Successor Agents. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be removed at any
time with or without cause by the Required Lenders. Upon any such resignation or
removal, the Required Lenders shall have the right to appoint a successor Agent.
If no successor Agent shall have been so appointed by the Required Lenders, and
shall have accepted such appointment, within 30 days after the retiring Agent's
giving of notice of resignation or the Required Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lenders, appoint a
successor Agent, which shall be a commercial bank organized under the laws of
the United States or of any State thereof and having a combined capital and
surplus of at least $250,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent and upon the execution and filing or
recording of such financing statements, or amendments thereto, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Security Agreement, such successor Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the retiring Agent, and the retiring Agent shall be discharged
from its duties and obligations under the Transaction Documents. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
this Article VII shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was Agent under this Agreement.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any provision of
this Agreement or the Notes or any other Transaction Document, nor consent to
any departure by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed (or, in the case of the Security
Agreement, consented to) by the Required Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment, waiver or consent
shall, unless in writing and signed by all of the Lenders, do any of the
following at any time: (i) change the number of Lenders or the percentage of the
aggregate unpaid principal amount of the Advance that, in each case, shall be
required for the Lenders or any of them to take any action hereunder, (ii)
release all or substantially all of the Collateral in any transaction or series
of related transactions, (iii) subject the Lenders to any additional
obligations, (iv) reduce the principal of, or interest on, the Notes or any fees
or other amounts payable hereunder, (v) postpone any date fixed for any payment
of principal of, or interest on, the Notes or any fees or other amounts payable
hereunder or (vi) limit the liability of the Borrower under any of the
Transaction Documents; and provided further that no amendment, waiver or consent
shall, unless in writing and signed by the Agent in addition to the Lenders
required above to take such action, affect the rights or duties of the Agent
under this Agreement.
SECTION 8.02. Notices. All notices and other communications provided for
hereunder shall be in writing (including telegraphic, telecopy or telex
communication) and mailed, telegraphed, telecopied, telexed or delivered, if to
the Borrower 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxx Xxxxx;
if to the Initial Lender, at its Applicable Lending Office specified on the
signature pages hereto; if to any other Lender, at its Applicable Lending Office
specified in the Assignment and Acceptance pursuant to which it became a Lender;
and if to the Agent, at its address at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxx Xxxxxxxxx; or, as to each party, at such other address
as shall be designated by such party in a written notice to the other parties.
All such notices and communications shall, when mailed, telegraphed, telecopied
or telexed, be effective when deposited in the mails, delivered to the telegraph
company, transmitted by telecopier or confirmed by telex answerback,
respectively, except that notices and communications to the Agent pursuant to
Article II, III or VII shall not be effective until received by the Agent.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or the Notes or of any Exhibit hereto to be
executed and delivered hereunder shall be effective as delivery of a manually
executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of any Lender or
the Agent to exercise, and no delay in exercising, any right hereunder or under
any Note shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
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SECTION 8.04. Costs, Expenses. (a) The Borrower agrees to pay on demand (i)
all costs and expenses of the Agent in connection with the preparation,
execution, delivery, administration, modification and amendment of the
Transaction Documents (including (A) all due diligence, collateral review,
syndication, transportation, computer, duplication, appraisal, audit, insurance,
consultant, search, filing and recording fees and expenses and (B) the
reasonable fees and expenses of counsel for the Agent with respect thereto, with
respect to advising the Agent as to its rights and responsibilities, or the
perfection, protection or preservation of rights or interests, under the
Transaction Documents, with respect to negotiations with the Borrower arising
out of any Default or any events or circumstances that may give rise to a
Default and with respect to presenting claims in or otherwise participating in
or monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally and any proceeding ancillary thereto) and (ii) all
costs and expenses of the Agent and the Lenders in connection with the
enforcement of the Transaction Documents, whether in any action, suit or
litigation, any bankruptcy, insolvency or other similar proceeding affecting
creditors' rights generally (including the reasonable fees and expenses of
counsel for the Agent and each Lender with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless the Agent, each
Lender and each of their Affiliates and their officers, directors, employees,
agents and advisors (each, an "Indemnified Party") from and against any and all
claims, damages, losses, liabilities and expenses (including reasonable fees and
expenses of counsel) that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of (including in connection with any investigation, litigation or
proceeding or preparation of a defense in connection therewith) the actual or
proposed use of the proceeds of the Advance, the Transaction Documents or any of
the transactions contemplated thereby. In the case of an investigation,
litigation or other proceeding to which the indemnity in this Section 8.04(b)
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. The Borrower also agrees not to assert any claim against the Agent,
any Lender or any of their Affiliates, or any of their respective officers,
directors, employees, attorneys and agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out of or otherwise
relating to the actual or proposed use of the proceeds of the Advance, the
Transaction Documents or any of the transactions contemplated thereby.
(c) If any payment of principal of, or Conversion of, a Eurodollar Rate
Advance is made by the Borrower to or for the account of a Lender other than on
the last day of the Interest Period for such Advance, including as a result of a
payment or Conversion pursuant to Section 2.05(a)(ii), 2.05(b), 2.07 or 2.08,
acceleration of the maturity of the Notes pursuant to Section 6.01 or otherwise,
the Borrower shall, upon demand by such Lender (with a copy of such demand to
the Agent), pay to the Agent for the account of such Lender any amounts required
to compensate such Lender for any additional losses, costs or expenses that it
may reasonably incur as a result of such payment, including any loss (including
loss of anticipated profits), cost or
35
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender to fund or maintain such Advance.
(d) If the Borrower fails to pay when due any costs, expenses or other
amounts payable by it under any Transaction Document, including fees and
expenses of counsel and indemnities, such amount may be paid on behalf of the
Borrower by the Agent or any Lender, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder or under any other Transaction Document, the agreements and
obligations of the Borrower contained in Sections 2.08 and 2.10 and this Section
8.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Transaction Documents.
SECTION 8.05. Right of Set-off . Upon (a) the occurrence and during the
continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the Agent to
declare the Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its respective Affiliates is hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and otherwise apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender or such Affiliate to or for the credit or the account of the
Borrower against any and all of the Obligations of the Borrower now or hereafter
existing under this Agreement and the Note or Notes (if any) held by such
Lender, irrespective of whether such Lender shall have made any demand under
this Agreement or such Note or Notes and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application; provided, however, that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender and its respective Affiliates under this Section are in addition to
other rights and remedies (including other rights of set-off) that such Lender
and its respective Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become effective when it
shall have been executed by the Borrower, the Agent and the Initial Lender and
thereafter shall be binding upon and inure to the benefit of the Borrower, the
Agent and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders, other than
with respect to a Permitted Merger.
SECTION 8.07. Assignments and Participations. (a) Each Lender may assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement, the portion of the Advance owing to it and the Note or
Notes held by it; provided, however, that (i) each such assignment shall be to
an Eligible Assignee, and (ii) the parties to each such assignment shall execute
and deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $3,000.
36
(b) Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in such Assignment and Acceptance, (x) the assignee
thereunder shall be a party hereto and, to the extent that rights and
obligations hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or the remaining
portion of an assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, the Lender
assignor thereunder and the assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, such assigning Lender makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
any other Transaction Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Transaction Document or
any other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under any
Transaction Document or any other instrument or document furnished pursuant
thereto; (iii) such assignee confirms that it has received a copy of this
Agreement and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon the
Agent, such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assignee confirms that it is an Eligible Assignee; (vi) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Transaction Documents as are
delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender.
(d) The Agent shall maintain at its address referred to in Section 8.02 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
principal amount of the Advance owing to each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Agent and the Lenders
shall treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
37
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an assignee, together with any Note or Notes subject to
such assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in form and substance satisfactory to the Agent, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the Borrower. In the case
of any assignment by a Lender, within five Business Days after its receipt of
such notice, the Borrower, at its own expense, shall execute and deliver to the
Agent in exchange for the surrendered Note or Notes a new Note to the order of
such Eligible Assignee in an amount equal to the amount of the Advance assumed
by it pursuant to such Assignment and Acceptance and, if the assigning Lender
has retained a portion of the Advance, a new Note to the order of the assigning
Lender in an amount equal to the portion of the Advance retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes, shall
be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A hereto.
(f) Each Lender may sell participations to one or more Persons (other than
the Borrower or any of its Affiliates) in or to all or a portion of its rights
and obligations under this Agreement (including all or a portion of the Advance
owing to it and the Note or Notes (if any) held by it); provided, however, that
(i) such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender shall remain the holder of
any such Note for all purposes of this Agreement, and (iv) the Borrower, the
Agent and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement.
(g) Any Lender may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this Section 8.07, disclose to
the assignee or participant or proposed assignee or participant, any information
relating to the Borrower furnished to such Lender by or on behalf of the
Borrower; provided, however, that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree to preserve the
confidentiality of any Confidential Information received by it from such Lender.
(h) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time create a security interest in all or any portion of its
rights under this Agreement (including the Advances owing to it and the Note or
Notes held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.
SECTION 8.08. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page
38
to this Agreement by telecopier shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 8.09 Jurisdiction, Etc. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Transaction Documents to which it is a party, or
for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Transaction Documents
in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or any of the other
Transaction Documents to which it is a party in any New York State or federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
SECTION 8.10 GOVERNING LAW. THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 8.11 WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE AGENT AND THE
LENDERS IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR
RELATING TO ANY OF THE LOAN DOCUMENTS, THE ADVANCE OR THE ACTIONS OF THE AGENT
OR ANY LENDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT
THEREOF.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
IRONBRIDGE ACQUISITION CORP.
By:
--------------------------------
Name: Xxxxx Xxxxx
Title: President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
NEDERLAND", NEW YORK BRANCH, as Agent
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
UTRECHT-AMERICA FINANCE CO., as
Initial Lender
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
EXHIBIT A
PROMISSORY NOTE
$_______________ Dated: February 1, 2002
FOR VALUE RECEIVED, the undersigned, IRONBRIDGE ACQUISITION
CORP., a Pennsylvania corporation, together with any successor by merger (the
"Borrower"), HEREBY PROMISES TO PAY to the order of _________________________
(the "Lender") for the account of its Applicable Lending Office (as defined in
the Credit Agreement referred to below) the principal amount of the Advance (as
defined below) owing to the Lender by the Borrower pursuant to the Credit
Agreement dated as of February 1, 2002 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"; terms defined therein being
used herein as therein defined) among the Borrower, the Lender, certain other
lenders party thereto and COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK BRANCH, as Agent for the Lender and such other
lenders thereto on the Maturity Date.
The Borrower promises to pay to the Lender interest on the
unpaid principal amount of the Advance from the date of such Advance until such
principal amount is paid in full, at such interest rates, and payable at such
times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank Nederland", New York Branch, as Agent, at 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxx, in same day funds. The Advance owing to the
Lender by the Borrower and the maturity thereof, and all payments made on
account of principal thereof, shall be recorded by the Lender and, prior to any
transfer hereof, endorsed on the grid attached hereto, which is part of this
Promissory Note.
This Promissory Note is one of the Notes referred to in, and
is entitled to the benefits of, the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of a single advance (the
"Advance") by the Lender to the Borrower in an amount not to exceed the U.S.
dollar amount first above mentioned, the indebtedness of the Borrower resulting
from such Advance being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein specified. The
obligations of the Borrower under this Promissory Note are secured by the
Collateral and the PDMI Collateral as provided in the Transaction Documents.
IRONBRIDGE ACQUISITION CORP.
By
----------------------------
Name: Xxxxx Xxxxx
Title: President
2
ADVANCES AND PAYMENTS OF PRINCIPAL
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Amount of Unpaid
Amount of Principal Paid Principal Notation
Date Advance or Prepaid Balance Made By
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EXHIBIT B
ASSET SALE ESCROW AGREEMENT
(See Annex A to Asset Purchase Agreement
filed as Exhibit (d)(3) to the Schedule TO)
EXHIBIT C
MERGER AGREEMENT
(See Exhibit (d)(1) to the Schedule TO)
