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REVOLVING CREDIT AGREEMENT
Dated as of March 18, 1997
Among
COURIER CORPORATION
COURIER-CITIZEN COMPANY
COURIER COMPANIES, INC.
COURIER DELAWARE HOLDING CORPORATION
COURIER FOREIGN SALES CORPORATION LIMITED
COURIER INVESTMENT CORPORATION
COURIER KENDALLVILLE, INC.
COURIER PROPERTIES, INC.
COURIER STOUGHTON, INC.
COURIER WESTFORD, INC.
NATIONAL PUBLISHING COMPANY
COURIER NEW MEDIA, INC.
as Borrowers
and
STATE STREET BANK AND TRUST COMPANY
THE FIRST NATIONAL BANK OF BOSTON
as Banks
and
STATE STREET BANK AND TRUST COMPANY
as Agent
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION
1.1 Definitions
1.2 Rules of Interpretation
SECTION 2. THE REVOLVING LOANS
2.1 Revolving Loans
2.2 Loan Account
2.3 Reduction of Revolving Credit Commitment
2.4 Payment
2.5 Interest and Fees
SECTION 3. REPRESENTATIONS AND WARRANTIES
3.1 Organization and Qualification
3.2 Corporate Authority
3.3 Valid Obligations
3.4 Approvals and Consents
3.5 Title to Properties; Absence of Liens
3.6 Compliance
3.7 Financial Statements
3.8 No Events of Default
3.9 Taxes
3.10 Litigation
3.11 Margin Rules
3.12 Restrictions on the Borrower
3.13 ERISA
3.14 Intellectual Property; Franchises
3.15 Environmental and Regulatory Compliance
3.16 Labor Relations
3.17 Contracts with Affiliates, Etc.
3.18 Subsidiaries
3.19 Interdependence of Borrowers
SECTION 4. CONDITIONS OF LOANS
4.1 Conditions of Initial Loans
4.2 Conditions to all Revolving Loans
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SECTION 5. COVENANTS
5.1 Financial Reporting
5.2 Conduct of Business
5.3 Maintenance and Insurance
5.4 Taxes
5.5 Limitation of Indebtedness
5.6 Guaranties
5.7 Restrictions on Liens
5.8 Merger, Acquisitions and Purchase and Sale of Assets
5.9 Investments and Loans
5.10 Sale of Notes
5.11 Restricted Payments
5.12 ERISA Compliance
5.13 Pension Plans
5.14 Notification of Default
5.15 Notification of Material Litigation
5.16 Inspection by the Agent and the Banks
5.17 Maintenance of Books and Records
5.18 Use of Proceeds
5.19 Transactions with Affiliates
5.20 Environmental Regulations
5.21 Fiscal Year
5.22 No Amendments to Certain Documents
5.23 No Termination of Certain Documents
5.24 Debt to Worth Ratio
5.25 Current Ratio
5.26 Debt Service Coverage
5.27 Subsidiaries
5.28 Name Change
5.29 Capital Expenditures
SECTION 6. EVENTS OF DEFAULT; ACCELERATION
SECTION 7. SET-OFF
SECTION 8. CONCERNING THE AGENT AND THE BANKS
8.1 Appointment and Authorization
8.2 Agent and Affiliates
8.3 Future Advances
8.4 Payments
8.5 Interest, Fees and Other Payments
8.6 Action by Agent
8.7 Consultation with Experts
8.8 Liability of Agent
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8.9 Indemnification
8.10 Independent Credit Decision
8.11 Successor Agent
SECTION 9. COURIER AS AGENT FOR THE BORROWERS
SECTION 10. MISCELLANEOUS
10.1 Written Notices
10.2 Term of Agreement
10.3 No Waivers
10.4 Further Assurances
10.5 Governing Law
10.6 Payments in Immediately Available Funds
10.7 Expenses, Taxes and Indemnification
10.8 Amendments, Waivers, Etc.
10.9 Binding Effect of Agreement
10.10 Assignment and Participation
10.11 Computation of Interest and Fees
10.12 Entire Agreement
10.13 Captions
10.14 Counterparts
10.15 Severability
10.16 Judgment Currency
10.17 Waiver of Jury Trial
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Disclosure
EXHIBIT C Existing Indebtedness
EXHIBIT D Form of Certificate of Chief Financial Officer
EXHIBIT E Form of Legal Opinion of Xxxxxxx, Procter & Xxxx LLP
EXHIBIT F List of Subsidiaries
EXHIBIT G Form of Flash Report
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT is made as of March 18, 1997, among
COURIER CORPORATION, a Massachusetts corporation ("Courier"), COURIER-CITIZEN
COMPANY, a Massachusetts corporation ("Citizen"), COURIER COMPANIES, INC., a
Massachusetts corporation ("Companies"), COURIER DELAWARE HOLDING CORPORATION, a
Delaware corporation ("Holding"), COURIER FOREIGN SALES CORPORATION LIMITED, a
Jamaica corporation ("FISC"), COURIER INVESTMENT CORPORATION, a Massachusetts
corporation ("Investment"), COURIER KENDALLVILLE, INC., an Indiana corporation
("Kendallville"), COURIER PROPERTIES, INC., a Massachusetts corporation
("Properties"), COURIER STOUGHTON, INC., a Massachusetts corporation
("Stoughton"), COURIER WESTFORD, INC., a Massachusetts corporation ("Westford"),
NATIONAL PUBLISHING COMPANY, a Pennsylvania corporation ("Publishing"), and
COURIER NEW MEDIA, INC., a Massachusetts corporation ("New Media") (Courier,
Citizen, Companies, Holding, FISC, Investment, Kendallville, Properties,
Stoughton, Westford, Publishing and New Media being sometimes hereinafter
referred to individually as a "Borrower" and collectively as the "Borrowers"),
STATE STREET BANK AND TRUST COMPANY, a trust company organized pursuant to the
laws of The Commonwealth of Massachusetts, executing this Agreement in its
capacity as one of the Banks ("SSB"), THE FIRST NATIONAL BANK OF BOSTON, a
national banking association organized under the laws of the United States
("FNBB"), and STATE STREET BANK AND TRUST COMPANY, executing this Agreement, in
the capacity of Agent for the Banks (the "Agent").
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1 Definitions. As used herein -
1.1.1 "Affiliate" means, with reference to any Person, (i) any
director, officer or employee of that Person, (ii) any other Person controlling,
controlled by or under direct or indirect common control of that Person, (iii)
any other Person directly or indirectly holding 5% or more of any class of the
capital stock or other equity interests (including options, warrants,
convertible securities and similar rights) of that Person and (iv) any other
Person 5% or more of any class of whose capital stock or other equity interests
(including options, warrants, convertible securities and similar rights) is held
directly or indirectly by that Person; provided that the term "Affiliate" shall
not include the Borrowers or any of their respective Subsidiaries. For purposes
of Sections 3.13, 5.12 and 5.13 hereof, "Affiliate" shall mean, within the
meaning of Section 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986,
as amended, (i) any member of a controlled group of corporations which includes
a Borrower, (ii) any trade or business, whether or not incorporated, under
common control with a Borrower, (iii) any member of an
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affiliated service group which includes a Borrower, and (iv) any member of a
group treated as a single employer by regulation.
1.1.2 "Agent" means SSB acting in the capacity as Agent for
the Banks under this Agreement and the other Loan Documents, and includes (where
the context so admits) any other Person or Persons succeeding to the functions
of the Agent under those documents.
1.1.3 "Agreement" means this Revolving Credit Agreement,
including the Exhibits hereto, as originally executed, or if this Agreement is
amended, varied or supplemented from time to time, as so amended, varied or
supplemented.
1.1.4 "Annual Report" means Courier's Annual Report on Form
10-K for the fiscal year ended September 28, 1996 as filed with the Securities
and Exchange Commission.
1.1.5 "Assignee" shall have the meaning set forth in Section
10.10 hereof.
1.1.6 "Applicable Prime Rate Margin" shall have the meaning
set forth in Section 2.5.1(ii) hereof.
1.1.7 "Applicable Euroloan Margin" shall have the meaning set
forth in Section 2.5.1(ii) hereof.
1.1.8 "Banks" means, collectively, (i) SSB, (ii) FNBB, and
(iii) each of the other financial institutions which may after the date hereof
become a party to this Agreement as a Bank hereunder.
1.1.9 "Borrowers" shall have the meaning set forth in the
preamble hereto.
1.1.10 "Borrowers' Accountants" means independent certified
public accountants reasonably acceptable to the Banks. The Banks hereby
acknowledge and agree that the Borrowers' Accountants may include Deloitte &
Touche LLP.
1.1.11 "Business Day" means (i) for all purposes other than as
covered by clause (ii) below, any day on which banks in either Boston,
Massachusetts or New York, New York are open for the conduct of a substantial
part of their commercial banking business; and (ii) with respect to all notices
and determinations in connection with, and payments of principal and interest
on, Eurocurrency Loans, any day which is a Business Day described in clause (i)
and which is also a day for trading by and between banks in Dollar deposits in
the interbank Eurocurrency market in which the Agent regularly participates.
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1.1.12 "Capital Expenditures" means any expenditure for fixed
assets, leasehold improvements, capital leases under GAAP, installment purchases
of machinery and equipment, acquisitions of real estate and other similar
expenditures including expenditures from the construction in progress account of
any Borrower that would be required to be capitalized and shown on the balance
sheet of such Person in accordance with GAAP. For purposes of the foregoing
definition, Capital Expenditures shall be reduced by cash received from the
disposition of a capital asset in accordance with GAAP so long as the proceeds
of such disposition have been retained or reinvested by a Borrower.
1.1.13 "Code" means the Internal Revenue Code of 1986, as
amended.
1.1.14 "Commitment Percentage" means, with respect to the
Revolving Credit Commitment, (i) in relation to SSB, 50%, and (ii) in relation
to FNBB, 50%.
1.1.15 "Consolidated" means the relevant figures for the
Borrowers and their respective Subsidiaries on a consolidated basis determined
in accordance with GAAP.
1.1.16 "Current Assets" means all assets of the Borrowers and
their respective Subsidiaries reported on a Consolidated basis which should, in
accordance with GAAP, be classified as current assets, but in any event
including the cash surrender value of life insurance to the extent it is
unencumbered and excluding any assets which are pledged or deposited as security
for, or for the purpose of paying, any Indebtedness which is not included in
Current Liabilities; provided, however, that for the purpose of computing the
Current Ratio in Section 5.25 hereof, inventories shall be valued at the lower
of cost (as measured by the first-in, first-out (FIFO) method of accounting) or
market.
1.1.17 "Current Liabilities" means the aggregate amount of
Indebtedness of the Borrowers and their respective Subsidiaries reported on a
Consolidated basis which should properly be classified as current liabilities in
accordance with GAAP and in any event including, without limitation, any direct
or indirect Indebtedness and other liabilities of the Borrowers and their
respective Subsidiaries, if any, which are payable on demand or within one year
from the creation thereof.
1.1.18 "Dollars" and "$" mean lawful money of the United
States of America.
1.1.19 "EBIT" means, for any period, an amount equal to
Consolidated Net Income for such period, (i) plus, to the extent deducted in
computing such Consolidated Net Income, (a) interest on Indebtedness for
borrowed money and (b) taxes, and (ii) to the extent included in computing such
Consolidated Net Income, minus all
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extraordinary gains or plus all extraordinary losses, and (iii) to the extent
included in computing such Consolidated Net Income, plus a one-time,
nonrecurring loss projected to be incurred in 1997 or 1998 resulting from the
closure or restructuring of a plant forming a segment of the Borrowers'
business, which loss may not exceed $1,500,000, in each case net of any tax
effect caused by such gains or losses (to the extent not already reflected in
clause (i)(b) above).
1.1.20 "Encumbrances" shall have the meaning set forth in
Section 5.7 hereof.
1.1.21 "Environmental Laws" shall have the meaning set forth
in Section 3.15 hereof.
1.1.22 "ERISA" shall have the meaning set forth in Section
3.13 hereof.
1.1.23 "Eurocurrency Rate" for any Interest Period means the
rate of interest determined by the Agent to be the prevailing rate per annum at
which deposits in Dollars are offered to the Agent by first-class banks in the
interbank Eurocurrency market in which it regularly participates at or about
11:00 a.m. (Boston time) two Business Days before the first day of such Interest
Period in an amount approximately equal to the principal amount of the
Eurocurrency Loan to which such Interest Period is to apply for a period of time
approximately equal to such Interest Period. Each such determination by the
Agent shall be conclusive in the absence of manifest error.
1.1.24 "Eurocurrency Loan" means any Loan bearing interest at
a rate determined with reference to the Euroloan Rate.
1.1.25 "Euroloan Rate" shall have the meaning set forth in
Section 2.5.4(i) hereof.
1.1.26 "Euroloan Rate Amount" means, in relation to any
Interest Period, any portions of the principal amount of any Loans on which the
Borrowers elect pursuant to Section 2.5.4(i) hereof to pay interest at a rate
determined by reference to the Euroloan Rate.
1.1.27 "Event of Default" shall have the meaning set forth in
Section 6.1 hereof.
1.1.28 "GAAP" means generally accepted accounting principles
(as in effect from time to time), consistently applied.
1.1.29 "Indebtedness" with respect to any Person means and
includes, without duplication, (i) all items which, in accordance with GAAP,
would be included as a liability on the balance sheet of such Person, but
excluding anything in the nature of
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capital stock, surplus capital and retained earnings, (ii) the face amount of
all banker's acceptances and of all letters of credit issued by any bank for the
account of such Person and all drafts drawn thereunder, (iii) the total amount
of all indebtedness secured by any Encumbrance to which any property or asset of
such Person is subject, whether or not the indebtedness secured thereby shall
have been assumed, and (iv) the total amount of all indebtedness and obligations
of others which such Person has directly or indirectly guaranteed, endorsed
(otherwise than for collection or deposit in the ordinary course of business),
discounted with recourse or agreed (contingently or otherwise) to purchase or
repurchase or otherwise acquire, including, without limitation, any agreement
(a) to advance or supply funds to such other Person to maintain working capital,
equity capital, net worth or solvency, or (b) otherwise to assure or hold
harmless such other Person against loss in respect of its obligations.
1.1.30 [Intentionally Omitted.]
1.1.31 "Interest Period" means, (i) with respect to each
Euroloan Rate Amount, any period relating to such Euroloan Rate Amount, the
commencement and duration of which shall be determined in accordance with
Section 2.5.4 hereof, and (ii) with respect to each Money Market Rate Loan, the
Interest Period as specified by the Borrowers in their notice of borrowing
(which in any event will not exceed three months), commencing on the borrowing
date, or, in the case of a conversion into Money Market Rate Loans, commencing
on the date of such conversion, provided that, in the case of this clause (ii),
if any such Interest Period would otherwise end on a day which is not a Business
Day, such Interest Period shall end and the next Interest Period shall commence
on the next succeeding Business Day.
1.1.32 "IRS" shall have the meaning set forth in Section 5.13
hereof.
1.1.33 "Loan" and "Loans" means any of the Revolving Loans as
defined in Section 2.1.1 hereof.
1.1.34 "Loan Account" means the account or accounts on the
books of the Agent in which will be recorded loans and advances made by the
Banks to the Borrowers pursuant to this Agreement, payments made on such loans
and other appropriate debits and credits as provided by this Agreement.
1.1.35 "Loan Documents" means, collectively, this Agreement
(including, without limitation, the agreements and other instruments listed or
described in Section 4 hereof), the Notes, the disclosure letter of even date
referred to on Exhibit B attached hereto, and any other agreements, instruments
or documents referred to herein (other than the Ancillary Documents) or therein
and delivered in connection herewith, and all schedules, exhibits and annexes
thereto.
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1.1.36 "Money Market Rate Loan" means, in relation to any
Interest Period, any portion of the principal amount of any Loans on which the
Borrowers elect pursuant to Section 2.5.5 hereof to pay interest at a rate
determined by reference to the Money Market Rate.
1.1.37 "Money Market Rate" shall have the meaning set forth in
Section 2.5.5 hereof.
1.1.38 "Net Income" means the Consolidated gross revenues of
the Borrowers and their respective Subsidiaries for the period in question, less
all expenses and other proper charges or credits (including taxes on income),
all determined in accordance with GAAP, but in any event, excluding from Net
Income: (i) any gain or loss arising from any write-up of assets, except to the
extent inclusion thereof shall be approved in writing by the Banks; (ii)
earnings of any Subsidiary accrued prior to the date it became a Subsidiary;
(iii) the net earnings of any business entity (other than a Subsidiary, which
term, for purposes of this clause (iii), shall be deemed to include a business
entity in which any Borrower or any Subsidiary has an ownership interest of more
than 20% but not more than 50%) in which any Borrower or any Subsidiary has an
ownership interest, except to the extent such net earnings shall have actually
been received by such Borrower or such Subsidiary in the form of cash
distributions; (iv) the proceeds of any life insurance policy; (v) any deferred
or other credit representing any excess of the equity of any Subsidiary at the
date of acquisition thereof over the amount invested in such Subsidiary; and
(vi) any reversal of any contingency reserve, except to the extent that
provision for such contingency reserve shall be made from income arising during
such period.
1.1.39 "Notes" shall have the meaning set forth in Section 2.1
hereof.
1.1.40 "Obligations" means any and all obligations of the
Borrowers to the Agent or either Bank of every kind and description, direct or
indirect, absolute or contingent, primary or secondary, due or to become due,
now existing or hereafter arising, regardless of how they arise or by what
agreement or instrument they may be evidenced or whether evidenced by any
agreement or instrument, and includes obligations to perform acts and to refrain
from acting as well as obligations to pay money.
1.1.41 "Operating Cash Flow" means for any fiscal period, on a
Consolidated basis, an amount equal to (i) EBIT for such period, (ii) plus all
depreciation, amortization and other non-cash charges of the Borrowers and their
respective Subsidiaries taken in accordance with GAAP and deducted in computing
Consolidated Net Income for such period, and (iii) minus income taxes actually
paid by the Borrowers and their respective Subsidiaries during such period and
plus any tax refund actually received by the Borrowers and their respective
Subsidiaries during such period.
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1.1.42 "Participant" shall have the meaning set forth in
Section 10.10 hereof.
1.1.43 "PBGC" shall have the meaning set forth in Section 3.13
hereof.
1.1.44 "Pension Plan" and "Pension Plans" shall have the
meanings set forth in Section 3.13 hereof.
1.1.45 "Person" includes an individual, a company, a
corporation, an association, a partnership, a limited liability company, a
limited liability partnership, a joint venture, an unincorporated trade or
business enterprise, a trust, an estate, or a government (national, regional or
local) or an agency, instrumentality or official thereof.
1.1.46 "Plan" and "Plans" shall have the meanings set forth in
Section 3.13 hereof.
1.1.47 "Prime Rate" means that rate of interest announced from
time to time by SSB at its head office in Boston as its prime rate, it being
understood that such rate is a reference rate, not necessarily the lowest, which
serves as the basis upon which effective rates of interest are calculated for
obligations making reference thereto.
1.1.48 "Rate Period" means the period beginning on the day
following delivery to the Agent and the Banks of the annual financial statements
required to be delivered pursuant to Section 5.1(i) hereof and ending one day
after the day on which the next such annual financial statements are delivered
to the Agent and the Banks.
1.1.49 "Release" shall have the meaning set forth in Section
3.15 hereof.
1.1.50 "Report" shall have the meaning set forth in Section
5.1 hereof.
1.1.51 "Reserve Charge" means, for each day on which any
Euroloan Rate Amount is outstanding, a reserve charge in an amount equal to the
product of:
(i) the outstanding principal amount of the Euroloan Rate
Amount, multiplied by
(ii) (a) the Eurocurrency Rate (expressed as a decimal)
divided by one minus the Reserve Rate, minus (b) the
Eurocurrency Rate (expressed as a decimal),
multiplied by
(iii) 1/360.
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1.1.52 "Reserve Rate" means the rate in effect from time to
time, expressed as a decimal, at which the Agent or the Banks would be required
to maintain reserves under Regulation D of the Board of Governors of the Federal
Reserve System (or any successor or similar regulation relating to such reserve
requirements) against "Eurocurrency Liabilities" (as such term is used in such
Regulation D) if such liabilities were outstanding.
1.1.53 "Restricted Payments" means (i) any dividend or other
distribution, direct or indirect, on or account of any shares of any class of
capital stock of any Borrower except a dividend payable solely in shares of
common stock or preferred stock of such Borrower; (ii) any redemption,
retirement, purchase or other acquisition, direct or indirect, of any shares of
any class of capital stock of any Borrower, or of any warrants, rights or
options to acquire any such shares, except to the extent the consideration
therefor consists of shares of common stock or preferred stock of such Borrower;
and (iii) any investment which is not permitted pursuant to Section 5.9 of this
Agreement (the amount involved in any Restricted Payment made or committed for
in property shall be the fair market value of such property on the date such
Restricted Payment is made or committed for).
1.1.54 "Revolving Credit Commitment" means, in relation to
either Bank, the maximum liability from time to time of such Bank to make
Revolving Loans to the Borrowers upon the terms and subject to the conditions
contained in this Agreement.
1.1.55 "Revolving Loans" shall have the meaning set forth in
Section 2.1.1 hereof.
1.1.56 "Revolving Loan Maturity Date" means February 15, 2000.
1.1.57 "Revolving Loan Maximum Amount" means $20,000,000.
1.1.58 "Subsidiary" means, with reference to any Person, any
corporation, association, joint stock company, business trust or other similar
organization of whose total capital stock or voting stock such Person directly
or indirectly owns or controls more than 50% thereof (or such lesser proportion
of such capital stock or voting stock as may from time to time constitute a
controlling interest in accordance with GAAP) or any partnership or other entity
in which such Person directly or indirectly has more than a 50% interest or
which is controlled directly or indirectly by such Person (or such lesser
proportion of such shares of beneficial interest as may from time to time
constitute a controlling interest in accordance with GAAP).
1.1.59 "Tangible Net Worth" means the amount which is equal to
the Consolidated net worth of the Borrowers and their respective Subsidiaries
computed in accordance with GAAP and with inventory and cost of goods sold
determined on a "last in, first out" basis, minus (i) any writeup in the book
value of any asset of any Borrower
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or any Subsidiary of any Borrower resulting from revaluation thereof after the
date of the Annual Report, but only to the extent any such writeup is not
otherwise approved in advance by the Banks or not otherwise permitted by GAAP,
(ii) the book value in accordance with GAAP, net of applicable reserves, of all
intangible assets of the Borrowers and their respective Subsidiaries, if any,
including, without limitation, goodwill, trademarks, trade names, copyrights,
patents and any similar rights, and unamortized debt discount and expense, (iii)
the value in accordance with GAAP, if any, attributable to any capital stock of
any Borrower or any Subsidiary of any Borrower held in treasury, (iv) the value
in accordance with GAAP, if any, attributable to any notes or subscriptions
receivable due from stockholders in respect of capital stock, and (v) accounts
with Affiliates (including receivables due from Affiliates).
1.1.60 "Total Debt Service" means, in relation to the
Borrowers and their respective Subsidiaries on a Consolidated basis for any
period, all interest expense which has accrued in accordance with GAAP (whether
actually paid or not), for such period, and all payments of principal scheduled
to be paid during such period, on all obligations for borrowed money,
capitalized leases or similar types of obligations, except for the principal
amounts outstanding under the Revolving Loans.
1.1.61 "Voting Shares" means, in relation to any particular
corporation, any shares of any class in the capital of such corporation having
by the terms thereof ordinary voting power to elect the majority of the board of
directors of such corporation.
1.1.62 "Year-End Financial Statements" shall have the meaning
set forth in Section 3.7 hereof.
1.2 Rules of Interpretation. For all purposes of this Agreement and the
other Loan Documents, except as otherwise expressly provided herein or therein
or unless the context otherwise requires:
(i) references to any Person defined in this Section 1 refer
to such Person and its permitted successor in title and assigns or (as the case
may be) his permitted successors, assigns, heirs, executors, administrators and
other legal representatives;
(ii) references to any agreement, instrument or document
defined in this Section 1 refer to such document as originally executed, or if
subsequently amended, varied or supplemented from time to time, as so amended,
varied or supplemented and in effect at the relevant time of reference thereto;
(iii) words importing the singular only shall include the
plural and vice versa, and the words importing the masculine gender shall
include the feminine gender and vice versa, and all references to dollars shall
be United States dollars;
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(iv) references to any law include any amendment or
modification to such law;
(v) the words "include," "includes" and "including" are not
limiting;
(vi) all terms not specifically defined herein or by GAAP,
which terms are defined in the Uniform Commercial Code as in effect in the
Commonwealth of Massachusetts, have the meanings assigned to them therein;
(vii) the words "herein," "hereof," "hereunder" and words of
like import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement;
(viii) accounting terms not otherwise defined in this
Agreement or any of the other Loan Documents have the meanings assigned to them
in accordance with GAAP; and
(ix) all of the obligations of the Borrowers under this
Agreement or any other Loan Document shall be the joint and several obligations
of the Borrowers.
SECTION 2. THE REVOLVING LOANS
2.1 Revolving Loans.
2.1.1 Upon the terms and subject to the conditions of this
Agreement, and in reliance upon the joint and several representations,
warranties and covenants of the Borrowers made herein, each of the Banks
severally agrees to make loans (the "Revolving Loans") to the Borrowers at the
Borrowers' request from time to time, from and after the date hereof and prior
to the Revolving Loan Maturity Date in such amounts as requested by the
Borrowers up to a maximum aggregate principal amount outstanding (after giving
effect to all amounts requested) at any one time equal to such Bank's Commitment
Percentage of the Revolving Credit Commitment; provided that the maximum
aggregate principal amount of Revolving Loans outstanding at any time (after
giving effect to all amounts requested) shall not exceed the aggregate Revolving
Credit Commitments of both of the Banks or the Revolving Loan Maximum Amount;
and provided, further, that at the time the Borrowers request a Revolving Loan
and after giving effect to the making thereof, there is not continuing any Event
of Default or any event which, with the giving of notice or the passage of time,
or both, would constitute an Event of Default. The Revolving Loans shall be made
pro rata in accordance with each Bank's Commitment Percentage. If at any time
the aggregate principal amount of all Loans then outstanding exceeds the
Revolving Credit Commitments, then the Borrowers shall, upon demand by the
Agent, pledge, assign and transfer to the Agent for the respective accounts of
the Banks, cash collateral in the amount of such excess or repay
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the amount of such excess by prepaying Loans then outstanding. Any such
prepayments of Eurocurrency Loans shall be accompanied by any amounts required
to be paid pursuant to Section 2.5.4(vi). Failure to pledge, assign and transfer
such collateral or make such payment within two (2) days after demand therefor
shall be an Event of Default hereunder.
2.1.2 All requests for Revolving Loans shall be in such form
and shall be made in such manner as is consistent with the Agent's customary
practices. The Revolving Loans shall be evidenced by separate Revolving Credit
Notes of the Borrowers to each Bank substantially in the form of Exhibit A
attached hereto (collectively, the "Notes"), with appropriate insertions.
2.1.3 Each Bank and the Agent shall, and is hereby irrevocably
authorized by the Borrowers to, enter on the schedule forming a part of the
respective Notes or otherwise in its records appropriate notations evidencing
the date and the amount of each Loan, the interest rate applicable thereto and
the date and amount of each payment of principal made by the Borrowers with
respect thereto; and in the absence of manifest error, such notations shall
constitute conclusive evidence thereof. Each Bank and the Agent is hereby
irrevocably authorized by the Borrowers to attach to and make a part of the
Notes a continuation of any such schedule as and when required. No failure on
the part of either Bank or the Agent to make any endorsement of a notation as
provided in this subsection 2.1.3 shall in any way affect any Loan, or the
rights or obligations of the Agent, the Banks or the Borrowers with respect
thereto.
2.2 Loan Account. The Agent shall enter Revolving Loans as debits in
the Loan Account. The Agent shall also record in the Loan Account all payments
made by the Borrowers on account of Revolving Loans, and may also record
therein, in accordance with customary accounting practices, other debits and
credits, including customary banking charges and all interest, fees, charges and
expenses chargeable to the Borrowers under this Agreement. The debit balance of
the Loan Account shall reflect the amount of the Borrowers' Obligations to the
Banks and the Agent from time to time by reason of Revolving Loans and other
appropriate charges permitted hereunder. Periodically, the Agent shall render a
statement of account showing as of its date the debit balance of the Loan
Account which, unless within thirty (30) days of the Borrowers' receipt of such
statement notice to the contrary is received by the Agent from the Borrowers,
shall be considered prima facie evidence that it is correct and accepted by
Borrowers in the absence of manifest error.
2.3 Reduction of Revolving Credit Commitment. The Borrowers shall have
the right at any time and from time to time upon five (5) Business Days' prior
written notice to the Agent to reduce by $500,000 or an integral multiple
thereof or terminate entirely the unborrowed portion of the Revolving Credit
Commitment, whereupon the Revolving Credit Commitments of the Banks shall be
reduced pro rata in accordance with their respective Commitment Percentages of
the amount specified in such notice, or, as
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the case may be, terminated. Promptly after receiving any notice of the
Borrowers delivered pursuant to this Section 2.3, the Agent will notify the
Banks of the substance thereof. Upon the effective date of any such reduction or
termination, the Borrowers shall pay to the Agent, for the ratable account of
each Bank, the full amount of any commitment fee then accrued pursuant to
Section 2.5.2 hereof on the amount of the reduction. If the Borrowers reduce the
Revolving Credit Commitment hereunder, any commitment fee payable thereafter
under Section 2.5.2 hereof shall be payable with respect to the Revolving Credit
Commitment as so reduced or terminated. No reduction of the Revolving Credit
Commitment may be reinstated.
2.4 Payment.
2.4.1 (i) Loans bearing interest at a rate determined by
reference to the Prime Rate may be prepaid from time to time in whole or in
part, without premium or penalty, provided that interest accrued on the amounts
so prepaid to the date of such payment and all (if any) outstanding fees and
charges in respect thereof must be paid at the time of any such prepayment.
Amounts so paid and other amounts may be borrowed and reborrowed from time to
time as provided in Section 2.1 hereof. (ii) No Loan bearing interest at a rate
determined by reference to the Euroloan Rate may be prepaid by the Borrowers
prior to the last day of any Interest Period applicable to such Loan. (iii) No
Loan bearing interest at a rate determined by reference to the Money Market Rate
may be prepaid by the Borrowers prior to the last day of any Interest Period
applicable to such Loan.
2.4.2 Notwithstanding the foregoing, the Borrowers jointly and
severally promise to pay on the Revolving Loan Maturity Date, and there shall
become absolutely due and payable on the Revolving Loan Maturity Date, all
outstanding Revolving Loans and the Notes, together with all unpaid interest
accrued thereon and all fees and other amounts due hereunder. In the case of any
partial prepayment of the Notes, the total amount of such partial prepayment
shall be allocable between or among the Notes pro rata in accordance with the
Commitment Percentage of each Bank.
2.4.3 The Revolving Loan Maturity Date may be extended for one
or more additional one-year periods as follows:
(i) not sooner than ninety (90) and not later than forty-five
(45) days prior to each anniversary of the date of this Agreement, the
Borrowers may, by written notice to the Agent, request a one-year
extension of the Revolving Loan Maturity Date, and the Agent shall
forthwith inform each Bank of such request;
(ii) each Bank shall thereafter have thirty (30) days after
notice from the Agent regarding the Borrowers' request to extend the
Revolving Loan Maturity Date, to notify the Agent whether it will
consent to the Borrowers'
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request, and the Agent shall forthwith inform the Borrowers of each
Bank's decision;
(iii) if the Agent notifies the Borrowers that either Bank has
elected not to consent to the Borrowers' request or has failed to
respond within such thirty (30) day period (such Bank a "Non-Consenting
Bank"), then the Borrowers shall have the right to recommend to the
Agent, within 5 days after notice from the Agent, a replacement for the
Non-Consenting Bank with another bank acceptable to the remaining
Bank(s);
(iv) if the Non-Consenting Bank is not replaced, or if both
Banks have elected not to consent to the Borrowers' request, or if the
replacement bank is not acceptable to the remaining Bank(s), in each
case prior to the Revolving Loan Maturity Date, then the Agreement
shall be terminated on the then current Revolving Loan Maturity Date;
(v) if the Non-Consenting Bank is so replaced or if both Banks
have consented to the Borrowers' request, then the Revolving Loan
Maturity Date shall be extended for an additional one-year period; and
(vi) it is acknowledged and agreed by the parties hereto that
upon any request for an extension of the Revolving Loan Maturity Date
made by the Borrowers after the first anniversary of the date of this
Agreement, the Banks shall have the right to review the interest rates
and fees applicable to the Loans and require a modification thereof as
a precondition to approving the requested extension of the Revolving
Loan Maturity Date.
2.5 Interest and Fees.
2.5.1 (i) Except to the extent the Borrowers are permitted and
have chosen the alternatives set forth in Sections 2.5.4 and/or 2.5.5 hereof,
the entire unpaid principal (not at the time overdue) of each Revolving Loan
shall bear interest at a rate per annum equal to the Prime Rate plus the
Applicable Prime Rate Margin in effect from time to time. Upon and after the
occurrence of an Event of Default, and during the continuation thereof, the
unpaid balance of the Revolving Loans shall bear interest, to the extent
permitted by law, at the annual rate of interest equal to three percent (3%)
above the Prime Rate plus the Applicable Prime Rate Margin in effect on the
first Business Day following the occurrence of such Event of Default, which
interest shall be compounded monthly and payable on demand. Any change in the
Prime Rate shall result in a change on the same day in the rate of interest to
accrue from and after such day on the unpaid balance of principal of the
Revolving Loans. Except as provided in the second sentence of this Section
2.5.1, interest on Revolving Loans shall be payable monthly in arrears on the
first Business Day of the next succeeding month, commencing on the first such
date following the date hereof, with the final payment at maturity of the
Revolving Loan.
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(ii) For purposes of this Section 2.5.1 and also
Section 2.5.4 below, (x) the "Applicable Prime Rate Margin" shall be equal to
the percentage determined for each Rate Period by reference to Table 1 below,
and (y) the "Applicable Euroloan Margin" shall be equal to the percentage
determined for each Rate Period by reference to Table 1 below:
Table 1
Applicable Applicable
Prime Rate Euroloan
Consolidated Net Income Margin Margin
----------------------- ---------- ----------
a) greater than or equal to $1,000,000 0.00% 0.75%
b) less than $1,000,000 but equal to or greater
than $0 0.25% 1.00%
c) less than $0 but equal to or greater than
negative ($1,000,000) 0.50% 1.25%
For purposes of determining the Applicable Prime Rate Margin and the Applicable
Euroloan Margin, Consolidated Net Income will be tested annually based on the
annual financial statements required to be delivered pursuant to Section 5.1(i)
hereof, and for further purposes of such determination, there will be excluded
all extraordinary items and, to the extent included in computing such
Consolidated Net Income, a one-time, nonrecurring loss projected to be incurred
in 1997 or 1998 resulting from the closure or restructuring of a plant forming a
segment of the Borrowers' business, which loss may not exceed $1,500,000. For
purposes of determining the interest rate for any Rate Period hereunder, any
interest rate change shall be effective five (5) days after the date on which
the financial statements required to be delivered pursuant to Section 5.1(i) are
delivered to the Agent and the Banks, together with a notice to the Agent (which
shall be verified by the Agent) specifying any change in the Applicable Prime
Rate Margin and the Applicable Euroloan Margin, and if the Borrowers have failed
to deliver the financial statements required to be delivered by them pursuant to
Section 5.1(i), the applicable Prime Rate Margin and the Applicable Euroloan
Margin shall automatically be increased to 0.50% and 1.25%, respectively, until
such financial statements are delivered.
It is further understood and agreed that if Consolidated Net Income is
determined to be less than negative ($1,000,000), such occurrence shall
constitute an Event of Default hereunder.
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2.5.2 The Borrowers jointly and severally agree to pay to the
Agent for the account of the Banks, to be allocated between the Banks in
accordance with their Commitment Percentages, a fee on the daily average unused
amount of the Revolving Credit Commitment from time to time available during the
period commencing on the date hereof and ending on the Revolving Loan Maturity
Date (as the same may be extended pursuant to Section 2.4.3 hereof), computed at
the annual rate of one-quarter of one percent (1/4%), and payable quarterly in
arrears on the last day of each March, June, September and December in each
year, commencing on the first such date following the date hereof, and also
payable on the date on which such Revolving Credit Commitment shall terminate in
full hereunder.
2.5.3 The Borrowers jointly and severally agree to pay to the
Agent for the account of the Banks, to be allocated between the Banks in
accordance with their Commitment Percentages, any and all reasonable charges
customarily made by banks against borrowers.
2.5.4 (i) At the option of the Borrowers, so long as there is
not then continuing any Event of Default or any event which, with the giving of
notice or the passage of time, or both, would constitute an Event of Default,
the Borrowers may elect from time to time prior to the Revolving Loan Maturity
Date to request that all or a portion of the Revolving Credit Loans shall bear
interest during any particular Interest Period at the Euroloan Rate; provided
that any such Revolving Credit Loan shall be in an integral multiple of $100,000
with respect to any single Interest Period. Any election by the Borrowers to
request that a Revolving Credit Loan bear interest at the Euroloan Rate shall be
made by notice (which shall be irrevocable) to the Agent at least three (3)
Business Days prior to the first day of the proposed Interest Period, specifying
the Euroloan Rate Amount and the duration of the proposed Interest Period (which
must be for one, two, three or six months and which shall expire not later than
the Revolving Loan Maturity Date). Any such election of a Euroloan Rate shall
lapse at the end of the expiring Interest Period unless extended by a further
election notice as hereinbefore provided. Except as otherwise provided herein,
each Euroloan Rate Amount shall bear interest during each Interest Period
relating thereto at an annual rate (the "Euroloan Rate") equal to the
Eurocurrency Rate plus the Applicable Euroloan Margin. Interest on each Euroloan
Rate Amount shall be payable in Dollars (a) on the last day of each Interest
Period relating thereto, or (b) if any Interest Period is longer than three
months, on the last day of each three-month period following the commencement of
such Interest Period and on the last day of such Interest Period.
(ii) The Borrowers shall pay to the Agent, for the
account of the applicable Bank, the Reserve Charge, if any, incurred by either
Bank with respect to Euroloan Rate Amounts of the Revolving Loans outstanding
from time to time on the dates interest is payable on such Euroloan Rate
Amounts.
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(iii) The Agent shall forthwith upon determining any
Euroloan Rate provide notice thereof to the Borrowers. Each such notice shall,
absent manifest error, be conclusive and binding upon the Borrowers.
(iv) If on any date on which the Euroloan Rate would
otherwise be set the Agent shall have determined in good faith (which
determination shall be final and conclusive) that, by reason of changes
affecting the interbank Eurocurrency market for Dollar deposits, adequate and
reasonable means do not exist for ascertaining the Eurocurrency Rate, or at any
time the Agent shall have determined in good faith (which determination shall be
final and conclusive) that:
(a) the making of a Eurocurrency Loan has been made
impracticable or unlawful by (1) the occurrence of a
contingency that materially and adversely affects the
interbank Eurocurrency market for Dollar deposits or (2)
compliance by the Agent or any Bank in good faith with any
applicable law or governmental regulation, guideline or order
or interpretation or change thereof by any governmental
authority charged with the interpretation or administration
thereof or with any request or directive of any such
governmental authority (whether or not having the force of
law); or
(b) the Eurocurrency Rate shall no longer represent
the effective cost to the Agent for Dollar deposits in the
interbank market for deposits in which the Agent regularly
participates;
then, and in any such event, the Agent shall forthwith so notify the Borrowers
thereof. Until the Agent notifies the Borrowers that the circumstances giving
rise to such notice no longer apply, the obligation of the Agent and the Banks
to allow the selection by the Borrowers of the type of Loans affected by the
contingencies described in this Subsection 2.5.4(iv) (herein called "Affected
Loans") shall be suspended. If at the time the Agent so notifies the Borrowers,
the Borrowers have previously requested one or more Affected Loans but such
Loans have not yet gone into effect, such notification shall be deemed to be
void and the Borrowers may request Loans at the rate of interest provided in
Section 2.5.1 or Section 2.5.5 hereof.
Upon such date as shall be specified in such notice (which shall not be
earlier than the date such notice is given) the Borrowers shall, with respect to
the outstanding Affected Loans, prepay the same, together with interest thereon
and any amounts required to be paid pursuant to Section 2.5.4(vi) and may
request a Loan of another type in accordance with Section 2.1 hereof.
(v) If any Interest Period in respect of a Euroloan
Rate Amount would otherwise end on a day which is not a Business Day for
Euroloan Rate purposes, that Interest Period shall end on the Business Day next
preceding or next succeeding such
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day as determined by the Agent in accordance with its usual practices and of
which the Agent notifies the Borrowers at the beginning of such Interest Period.
(vi) If, notwithstanding Section 2.4.1(ii) hereof,
for any reason any payment or prepayment of principal of a Euroloan Rate Amount
is made on any day other than the last day of an Interest Period, then the
Borrowers shall reimburse the Agent or the applicable Bank for such amount as
the Agent or such Bank certifies to be the amount that will compensate the Agent
or such Bank for the resulting loss, if any.
2.5.5 In addition, the Borrowers may request, and the Agent,
in the sole discretion of the Agent and the Banks, may quote the Borrowers, a
so-called money market rate (the "Money Market Rate") for one or more proposed
Revolving Loans and/or Interest Periods, provided that (i) each Money Market
Rate Loan shall not be less than $500,000 or integral multiples of $250,000 in
excess of $500,000, and (ii) the aggregate principal amount of Money Market Rate
Loans at any one time outstanding shall not exceed the Revolving Loan Maximum
Amount (less the aggregate amount of then outstanding Loans), and provided,
further, that at the time of the request of the Money Market Rate Loan and after
giving effect to the making thereof, there is not then continuing any Event of
Default or any event which, with the giving of notice or the passage of time, or
both, would constitute an Event of Default. Any request by the Borrowers for a
Revolving Loan bearing interest at the Money Market Rate shall be made prior to
11:00 a.m. (Boston time) of the first day of the proposed Interest Period.
Notwithstanding anything else in this Agreement, the maximum principal amount
which the Borrowers may borrow under any possible combination of Loans shall not
exceed the amount of the Revolving Loan Maximum Amount as in effect from time to
time. If the Borrowers desire to proceed with a Money Market Rate Loan on the
proposed date on a basis quoted to it, the Borrowers shall, within the time
limit specified in such quotation, give notice to the Agent of (i) the amount
thereof, and (ii) the Interest Period to be applicable thereto. Each such notice
given by the Borrowers shall be irrevocable and shall obligate the Borrowers to
accept the Loan described therein on the basis proposed therefor. In addition,
the Borrowers shall enter into with the Agent and the Banks such agreements and
execute such instruments and documents as the Agent and the Banks reasonably
require.
2.5.6 If after the date hereof, either Bank shall have
determined that the adoption of any applicable law, rule, regulation, guideline,
directive or request (whether or not having the force of law) regarding capital
requirements for banks or bank holding companies, or any change therein, or any
change in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by such Bank with any of the foregoing
imposes or increases a requirement by such Bank to allocate capital resources to
such Bank's commitment to make Loans hereunder which has or would have the
effect of reducing the return on such Bank's capital to a level below that which
such Bank could have achieved (taking into consideration such Bank's then
existing policies with respect
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to capital adequacy and assuming full utilization of such Bank's capital) but
for such adoption, change or compliance by any amount deemed by such Bank to be
material, then: (i) the Agent shall promptly after its determination of such
occurrence give notice thereof to the Borrowers; and (ii) the Borrowers shall
pay to the Agent, for the account of the applicable Bank, as an additional fee
from time to time on demand such amount as such Bank certifies to be the amount
that will compensate such Bank for such reduction. A certificate of the
applicable Bank claiming compensation under this Section shall be conclusive in
the absence of manifest error. Such certificate shall set forth the nature of
the occurrence giving rise to such compensation, the additional amount or
amounts to be paid to it hereunder and the method by which such amounts were
determined. In determining such amount, such Bank may use any reasonable
averaging and attribution methods. The provisions of this Section 2.5.6 shall be
applied to the Borrowers so as not to discriminate against the Borrower
vis-a-vis other customers of the applicable Bank.
2.5.7 Anything hereinbefore to the contrary notwithstanding,
if, after the date hereof, any present or future applicable law (which
expression, as used in this Agreement, includes statutes and rules and
regulations thereunder and interpretations thereof by any competent court or by
any governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time heretofore or
hereafter made upon or otherwise issued to the Agent or either Bank by any
central bank or other fiscal, monetary or other authority, whether or not having
the force of law) shall (i) subject the Agent or either Bank to any tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature with respect
to this Agreement, the maximum amount of any Loan, any Loans, any other Loan
Document, including, without limitation, the Notes or the payment to the Agent
or either Bank of any amounts due to it thereunder or hereunder, or (ii)
materially change the basis of taxation of payments to the Agent or either Bank
of the principal or the interest on or any other amounts payable to the Agent or
either Bank hereunder, under the Notes or under any other Loan Document, or
(iii) impose or increase or render applicable any special or supplemental
special deposit or reserve or similar requirements or assessment against assets
held by, or deposits in or for the account of, or any liabilities of, or loans
by an office of the Agent or either Bank in respect of the transactions
contemplated herein, or (iv) impose on the Agent or either Bank any other
conditions or requirements with respect to this Agreement, the maximum amount of
any Loan, any Loan, the Notes or any other Loan Document, and the result of any
of the foregoing is (a) to increase the cost to the Agent or either Bank of
making, funding or maintaining all or any part of the Loans or the commitment
thereto, or (b) to reduce the amount of principal, interest or other amount
payable to the Agent or either Bank hereunder, under the Notes or under any
other Loan Document or (c) to require the Agent or either Bank to make any
payment or to forgo any interest or other sum payable hereunder, under the Notes
or under any other Loan Document, the amount of which payment or foregone
interest or other sum is calculated by reference to the gross amount of any sum
receivable or deemed received by the Agent or either Bank from the Borrowers
hereunder, under the Notes or under any other Loan Document, then, and in
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each such case not otherwise provided for hereunder, the Borrowers will, upon
demand made by the Agent or such Bank accompanied by calculations thereof in
reasonable detail, pay to the Agent or such Bank such additional amounts as will
be sufficient to compensate the Agent or such Bank for such additional cost,
reduction, payment or foregone interest or other sum, provided that the
foregoing provisions of this sentence shall not apply in the case of any
additional cost, reduction, payment or foregone interest or other sum resulting
from any taxes charged upon or by reference to the overall net income, profits
or gains of the Agent or such Bank.
2.5.8 Anything hereinbefore to the contrary notwithstanding,
if at any time, whether as a result of the application of any present or future
law (which expression, as used in this Agreement, includes statutes and rules
and regulations thereunder and interpretations thereof by any competent court or
by any governmental body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time heretofore or hereafter made upon or issued to the
Agent or either Bank by any central bank or any fiscal, monetary or other
authority, whether or not having the force of law), changes in any present or
future law, subsequent transactions by the Borrowers, changes in the ratio of
Indebtedness of the Borrowers to Tangible Net Worth or otherwise, the Agent or
either Bank is deemed to be involved in a so-called "highly leveraged
transaction" by virtue of its having extended or its maintaining the Loans, then
the Agent shall notify the Borrowers thereof. The Agent or such Bank and the
Borrowers shall thereupon commence negotiations in good faith to agree on the
extent to which fees, interest rates and/or margins hereunder should be
increased so as to reflect the Agent's or such Bank's involvement in a "highly
leveraged transaction." If the Borrowers and the Agent or such Bank agree on the
amount of such increase or increases, this Agreement shall be promptly amended
to give effect to such increase or increases. If the Borrowers and the Agent or
such Bank fail so to agree within thirty (30) days after the date on which the
Borrowers receive notice from the Agent or such Bank as provided above, then the
Agent and the Banks may, at their option, at any time thereafter by notice to
the Borrowers, terminate the Revolving Credit Commitment, effective not less
than one hundred and twenty (120) days after the giving of such notice of
termination, and on the effective date of such termination the commitment to
make Loans hereunder shall terminate and the Notes shall become due and payable
in full.
2.5.9 The Borrowers authorize the Agent and each Bank to
charge to the Loan Account or, without double-charging, to any deposit account
which the Borrowers may maintain with the Agent or such Bank, the interest,
fees, charges, taxes and expenses provided for in this Agreement or any other
document executed or delivered in connection herewith.
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SECTION 3. REPRESENTATIONS AND WARRANTIES.
The Borrowers hereby jointly and severally represent and warrant to the
Agent and each Bank as follows:
3.1 Organization and Qualification. Each of the Borrowers and its
Subsidiaries (i) is a corporation duly organized, validly existing and in good
standing under the laws of the State of its incorporation as indicated on
Exhibit B attached hereto; (ii) has all requisite corporate power and authority
to own its property and conduct its business as now conducted and as presently
contemplated; and (iii) is duly qualified and in good standing in each
jurisdiction (which jurisdictions are listed on Exhibit B attached hereto) where
the nature of its properties or its business requires such qualification, except
where the failure to be so qualified would not have a material and adverse
effect on the condition (financial or otherwise), properties, business or
results of operations of the Borrowers and their respective Subsidiaries taken
as a whole.
3.2 Corporate Authority. The execution, delivery and performance of
this Agreement, the Notes and the other Loan Documents and the transactions and
other documents contemplated hereby and thereby are within each Borrower's
corporate authority, have been authorized by all necessary corporate proceedings
on the part of such Borrower, and do not and will not (i) contravene any
provision of law (except for any contravention as would not materially and
adversely affect the condition (financial or otherwise), properties, business or
results of operations of the Borrowers and their respective Subsidiaries taken
as a whole), or its or any of its Subsidiaries' charter documents or by-laws
(each as in effect from time to time), or (ii) contravene any provisions of, or
constitute an Event of Default hereunder or a default under, or an event which
with the lapse of time or the giving of notice, or both, would constitute an
Event of Default hereunder or a default under any other agreement, instrument,
judgment, order, decree, permit, license or undertaking binding upon or
applicable to such Borrower, any Subsidiary of such Borrower or any of their
respective properties, or result in the creation of any mortgage, pledge,
security interest, lien, encumbrance or charge upon any of the properties or
assets of such Borrower or any Subsidiary of such Borrower, or (iii) require any
waivers, consents or approvals by any of the creditors or trustees for creditors
of such Borrower or any Subsidiary of such Borrower, or (iv) require any
consents or approvals by any shareholders of such Borrower or any Subsidiary of
such Borrower, or (v) require any approval, consent, order, authorization or
license by, or giving notice to, or taking any other action with respect to, any
governmental or regulatory authority or agency, except those actions that have
been taken or will be taken prior to the date of this Agreement, under any
provision of any applicable law.
3.3 Valid Obligations. The agreements and obligations of each Borrower
in this Agreement, the Notes and the other Loan Documents to which such Borrower
is a party constitute legal, valid and binding obligations of such Borrower
enforceable against such Borrower in accordance with their respective terms,
except as limited by
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bankruptcy, insolvency, reorganization, moratorium or other laws affecting the
enforcement of creditors' rights generally, and except as the remedy of specific
performance or of injunctive relief is subject to the discretion of the court
before which any proceeding therefor may be brought.
3.4 Approvals and Consents. The execution, delivery and performance of
this Agreement, the Notes and the other Loan Documents and the transactions and
other documents contemplated hereby and thereby do not require any approval or
consent of, or filing or registration with, any governmental or other agency or
authority or any other Person, except as disclosed on Exhibit B attached hereto.
3.5 Title to Properties; Absence of Liens. As of the date of this
Agreement, each of the Borrowers and its Subsidiaries has good and marketable
title to all of its respective properties, assets and rights of every name and
nature now purported to be owned by it, including, without limitation, the
properties, assets and rights reflected in the Year-End Financial Statement, in
each case free from all liens, charges and encumbrances whatsoever except for
insubstantial defects in title which do not materially detract from the value or
impair the use of the affected properties and liens, charges or encumbrances
permitted under Section 5.7 hereof, and as of the date of this Agreement its
Obligations under the Loan Documents rank at least pari passu as to the right of
repayment with all its other Indebtedness for borrowed money except as set forth
on Exhibit B attached hereto. The rights, properties and other assets presently
owned, leased or licensed by any of the Borrowers or any of their respective
Subsidiaries and described elsewhere in this Agreement include all rights,
properties and other assets necessary to permit the Borrowers and their
respective Subsidiaries to conduct their respective businesses in all material
respects in the same manner as such businesses are being conducted on the date
of this Agreement.
3.6 Compliance. Except as set forth in Exhibit B attached hereto, each
of the Borrowers and its Subsidiaries has all necessary permits, approvals,
authorizations, consents, licenses, franchises, registrations and other rights
and privileges (including patents, trademarks, trade names and copyrights) to
allow it to own and operate its business without any violation of law or the
rights of others (except for any such violation as would not materially and
adversely affect the condition (financial or otherwise), properties, business or
results of operations of the Borrowers and their respective Subsidiaries taken
as a whole); and each of the Borrowers and its Subsidiaries is duly authorized,
qualified and licensed under and in compliance with all applicable laws,
regulations, authorizations and orders of public authorities (except where the
failure to comply would not materially and adversely affect the condition
(financial or otherwise), properties, business or results of operations of the
Borrowers and their respective Subsidiaries taken as a whole).
3.7 Financial Statements. The Borrowers have furnished to the Agent and
the Banks the Consolidated balance sheet and statement of income of the
Borrowers and their
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respective Subsidiaries as at September 28, 1996 and for the fiscal year then
ended certified by the Borrowers' Accountants (the "Year-End Financial
Statement"), which was prepared in accordance with GAAP and fairly presents the
financial position of the Borrowers and their respective Subsidiaries as at the
close of business on such date and the results of operations for the fiscal year
period then ended, along with Courier's Quarterly Report on Form 10-Q for the
fiscal quarter ended December 28, 1996 as filed with the Securities and Exchange
Commission. The Borrowers have also furnished to the Agent and the Banks
projections of the Borrowers' and their respective Subsidiaries' results of
operations for the fiscal year ended September 27, 1997, all of which were made
in good faith and based on assumptions which the Borrowers believed reasonable
when made and continue to be reasonable at the date hereof. At the date hereof,
the Borrowers and their respective Subsidiaries have no Indebtedness or other
liabilities, debts or obligations involving amounts material to the Borrowers
and their respective Subsidiaries taken as a whole, whether accrued, absolute
or, to the best knowledge of the Borrowers, contingent, and whether due or to
become due, including, but not limited to, liabilities or obligations on account
of taxes or other governmental charges, that are not set forth on Exhibit C
attached hereto or reflected in the Year-End Financial Statement or in such Form
10-Q. Since the date of such Form 10-Q there have been no changes in the assets,
liabilities, financial condition or business of the Borrowers and their
respective Subsidiaries taken as a whole, the effect of which has, in the
aggregate, been materially adverse, except as set forth on Exhibit B attached
hereto.
3.8 No Events of Default. As of the date of this Agreement, no Event of
Default exists, and no event or condition exists which, with the passage of time
or the giving of notice, or both, would constitute an Event of Default.
3.9 Taxes. Each of the Borrowers and its Subsidiaries has filed all
federal, state and other tax returns required to be filed and all material
taxes, assessments and other such governmental charges due from the Borrowers
and their respective Subsidiaries have been fully paid. Except as set forth on
Exhibit B attached hereto, neither any Borrower nor any Subsidiary of any
Borrower has executed any waiver that would have the effect of extending the
applicable statute of limitations in respect of tax liabilities involving
amounts material to the Borrowers taken as a whole. Each of the Borrowers and
its Subsidiaries has established on its books reserves in accordance with GAAP
for the payment of all federal, state and other tax liabilities.
3.10 Litigation. Except as set forth on Exhibit B attached hereto,
there is no litigation, proceeding or governmental investigation, civil or
criminal, administrative or judicial, pending or, to the best knowledge of the
Borrowers, threatened against any Borrower or any Subsidiary of any Borrower
which, if decided adversely to such Borrower or such Subsidiary would have a
materially adverse effect on the condition (financial or otherwise), properties,
business or results of operations of the Borrowers and their respective
Subsidiaries taken as a whole or on the ability of the Borrowers to perform
their obligations hereunder, under the Notes, under the other Loan Documents to
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which any Borrower is a party or under any other agreement or document
contemplated hereby, nor is any substantial basis for any such litigation known
to exist.
3.11 Margin Rules. No portion of any Loan is to be used for the purpose
of purchasing or carrying any "margin security" or "margin stock" as such terms
are used in Regulations G, U or X of the Board of Governors of the Federal
Reserve System.
3.12 Restrictions on the Borrowers. Neither any Borrower nor any
Subsidiary of any Borrower is party to or bound by any contract, agreement or
instrument, nor subject to any charter or other corporate restriction,
materially and adversely affecting the condition (financial or otherwise),
properties, business or results of operations of the Borrowers and their
respective Subsidiaries taken as a whole.
3.13 ERISA. (i) Each "Employee Pension Benefit Plan" (as such term is
defined in Section 3 of the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations thereunder ("ERISA")) now or heretofore
maintained by any Borrower or any Affiliate (as defined solely in the second
sentence of Section 1.2) (individually the "Pension Plan" and collectively the
"Pension Plans") and any "Employee Welfare Benefit Plan" (as such term is
defined in Section 3 of ERISA) now or heretofore maintained by any Borrower or
any Affiliate (individually the "Plan" and collectively the "Plans") is listed
on Exhibit B attached hereto and is in substantial compliance with ERISA (to the
extent that ERISA is applicable); (ii) no Pension Plan, Plan or trust created
thereunder, no trustee thereof, no administrator or fiduciary (other than an
unrelated third party administrator or fiduciary) thereof, and neither any
Borrower nor any Affiliate has engaged in a "Prohibited Transaction" (as such
term is defined in Section 406 of ERISA and Section 4975 of the Internal Revenue
Code of 1986, as amended (the "Code") ("Prohibited Transaction")) which would
subject any such Pension Plan, Plan, trust created thereunder, trustee,
administrator or fiduciary thereof or any Borrower or any Affiliate or any party
dealing with any such Pension Plan, Plan or trust to a material tax or penalty
on a "Prohibited Transaction" imposed under Section 4975 of the Code or Section
502 of ERISA; (iii) except as set forth on Exhibit B attached hereto, no Pension
Plan or trust created thereunder has been the subject of a Reportable Event (as
such term is defined in Section 4043 of ERISA), including, without limitation,
the termination of any Pension Plan or trust; (iv) if and to the extent that
either any Borrower or any Affiliate is a party to a multi-employer plan (as
defined in Section 4001 of ERISA), then neither any Borrower nor any Affiliate
has incurred withdrawal liability, within the meaning of Section 4201 of ERISA,
with respect to any such multi-employer plan and neither any Borrower nor any
Affiliate has any knowledge that any such multi-employer plan to which any
Borrower or any Affiliate thereof is required to contribute is in reorganization
or is insolvent pursuant to Section 4241 or 4245 of ERISA; (v) no Pension Plan
which is not a multi-employer Plan is insolvent or in reorganization; (vi)
neither any Borrower nor any Affiliate has ceased operations at a facility with
the result that any Borrower or any Affiliate thereof is to be treated as a
substantial employer as provided in Section 4062(e) of ERISA, or has withdrawn
from a Pension Plan with
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respect to which it was a "substantial employer"; (vii) neither any Borrower nor
any Affiliate and no Pension Plan or trust created thereunder has incurred any
"accumulated funding deficiency" (as such term is defined in Section 412 of the
Code and Section 302 of ERISA) whether or not waived, since the effective date
of ERISA; (viii) no condition exists which presents a material risk to any
Borrower or any Affiliate of incurring a liability to or on account of a Pension
Plan or Plan pursuant to any of the foregoing sections of the Code and ERISA;
(ix) the aggregate current value of all assets of Pension Plans which are
single-employer plans (i.e., plans which are not referred to in clause (iv)
hereof), based upon actuarial assumptions which are reasonable in general and in
relation to the experience of such Pension Plans, is at least equal to the
aggregate current value of all accrued benefits under such Pension Plans; and
(x) no Pension Plan and neither any Borrower nor any Affiliate has incurred any
liability to the Pension Benefit Guaranty Corporation or any governmental
authority succeeding to any and all of the functions of said corporation (the
"PBGC") over and above premiums required by law.
3.14 Intellectual Property; Franchises. Each of the Borrowers and its
Subsidiaries, respectively, has all licenses, franchises, patents, patent
applications, patent licenses, patent rights, trademark rights, trade names,
trade name rights, copyrights, permits, authorizations and other rights as are
necessary for the conduct of its business. All of the foregoing are in full
force and effect, and each of the Borrowers and its Subsidiaries is in
compliance with the foregoing without any known conflict with the valid rights
of others which would affect or impair in a material manner the condition
(financial or otherwise), properties, business or results of operations of the
Borrowers and their respective Subsidiaries taken as a whole. No event has
occurred which permits, or after notice of lapse of time or both would permit,
the revocation or termination of any such license or other right, or materially
and adversely affects the rights of any Borrower or any Subsidiary of any
Borrower thereunder. There is no litigation or other proceeding or dispute the
result of which may materially and adversely affect the validity or the
extension or renewal of any of the foregoing.
3.15 Environmental and Regulatory Compliance. Except as set forth on
Exhibit B attached hereto, to the best knowledge of the Borrowers, each of the
real properties owned or leased by any Borrower or any of their respective
Subsidiaries, all as described on Exhibit B attached hereto, and any operations
conducted thereon by any Borrower or any of their respective Subsidiaries, are
presently in compliance with and have in full force and effect all permits,
licenses, or approvals required by all applicable building, zoning,
environmental, health, safety or other laws, ordinances or regulations
(collectively, "Environmental Laws"), and any judgment, decree or order relating
thereto, except for any non-compliance with respect to, or lack of possession
of, the foregoing which does not have or will not have a material and adverse
effect on the condition (financial or otherwise), properties, business or
results of operations of the Borrowers and their respective Subsidiaries taken
as a whole, and neither any Borrower nor, to the best knowledge of the
Borrowers, any Subsidiary of any Borrower, has received notification that any of
the foregoing properties or operations conducted by such Borrower or any
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such Subsidiary is in violation or alleged violation of any of the foregoing
except for any violation which would not have a material and adverse effect on
the condition (financial or otherwise), properties, business or results of
operations of the Borrowers and their respective Subsidiaries taken as a whole.
Except as set forth on Exhibit B attached hereto, to the best knowledge of the
Borrowers, neither any Borrower nor any of its respective Subsidiaries has ever
generated, stored, handled or disposed of any hazardous substances, hazardous
materials or oil on any of such properties or any portion thereof or in
connection with any of such operations except in compliance with all applicable
Environmental Laws and neither any Borrower nor, to the best knowledge of the
Borrowers, any of their respective Subsidiaries is aware of the disposal, spill
or release or threatened release of such substances on any of such properties or
any portion thereof by any prior owner or prior occupant or prior user thereof
or by anyone else, except for any such operation, storage, handling, disposal,
spill, release or threatened release which, individually or in the aggregate,
does not have or will not have a material and adverse effect on the condition
(financial or otherwise), properties, business or results of operations of the
Borrowers and their respective Subsidiaries taken as a whole. Except as set
forth on Exhibit B attached hereto, no inquiry, notice or threat to give notice
by any governmental authority or any other third party has been received by any
Borrower or, to the best knowledge of the Borrowers, any of their respective
Subsidiaries with respect to the generation, storage, handling or disposal or
release or threat of release (collectively, a "Release") or alleged Release
thereof, or with respect to any violation or alleged violation of any
Environmental Laws or any judgment, decree or order relating thereto, except for
any such inquiry, notice, threat of notice, violation, alleged violation,
judgment, decree or order which, individually or in the aggregate, does not have
or will not have a material and adverse effect on the condition (financial or
otherwise), properties, business or results of operations of the Borrowers and
their respective Subsidiaries taken as a whole. Except as set forth on Exhibit B
attached hereto, to the best knowledge of the Borrowers, no underground storage
tanks or surface impoundments are on any of the properties owned or leased or
operated by any Borrower or any of their respective Subsidiaries, except for any
such underground storage tanks or surface inpoundments which, individually or
in the aggregate, do not have or will not have a material and adverse effect on
the condition (financial or otherwise), properties, business or results of
operations of the Borrowers and their respective Subsidiaries taken as a whole.
For the purposes of this Section, (i) "hazardous substances" shall mean
"hazardous substances" as defined in the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. Section 9601, et seq., and
regulations thereunder or under the provisions of any other applicable federal,
state, county or municipal law, ordinance, rule or regulation, (ii) "hazardous
material" and "oil" shall mean "hazardous material" and "oil," respectively, as
defined in the Massachusetts Oil and Hazardous Material Release Prevention and
Response Act, as amended, M.G.L. Chapter 21E, and regulations thereunder or
under the provisions of any other applicable federal, state, county or municipal
law, ordinance, rule or regulation, and (iii) "release" or "threat of release"
shall mean such terms as they are defined in any of the foregoing laws,
ordinances, rules or regulations, as applicable.
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3.16 Labor Relations. Neither any Borrower nor, to the best knowledge
of the Borrowers, any of their respective Subsidiaries is engaged in any unfair
labor practice that would have a material adverse effect on the Borrowers and
their respective Subsidiaries taken as whole. Except as set forth in Exhibit B,
there is (i) no significant unfair labor practice complaint pending against any
Borrower or any Subsidiary of any Borrower or, to the best knowledge of the
Borrowers, threatened against any of them, before the National Labor Relations
Board, and no significant grievance or significant arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against any Borrower or any of their respective Subsidiaries or, to the best
knowledge of the Borrowers, threatened against any of them, except for such
complaints, grievances and arbitration proceedings which, if adversely decided,
would not have a material and adverse effect on the Borrowers and their
respective Subsidiaries taken as a whole, (ii) no significant strike, labor
dispute, slowdown or stoppage pending against any Borrower or any of their
respective Subsidiaries or, to the best knowledge of the Borrowers, threatened
against any Borrower or any of their respective Subsidiaries, except for any
such labor action as would not have a material and adverse effect on the
Borrowers and their respective Subsidiaries taken as a whole, and (iii) to the
best knowledge of the Borrowers, no significant union representation question
existing with respect to the employees of any Borrower or any of their
respective Subsidiaries and, to the best knowledge of the Borrowers, no union
organizing activities are taking place, except for any such question or
activities as would not have a material and adverse effect on the Borrowers and
their respective Subsidiaries taken as a whole.
3.17 Contracts with Affiliates, Etc.
(i) Except as disclosed on Exhibit B attached hereto, and
except for agreements or transactions (in each case) in the ordinary course of
business and on an arm's-length basis, neither any Borrower nor any of their
respective Subsidiaries is a party to or otherwise bound by any agreements,
instruments or contracts (whether written or oral) with any Affiliate other than
the Loan Documents, except for any such agreement, instrument or contract as
would not materially and adversely affect the condition (financial or
otherwise), properties, business or results of operations of the Borrowers and
their respective Subsidiaries taken as a whole.
(ii) There is no Indebtedness for borrowed money in excess of
$25,000 owing by any Borrower or any Subsidiary of any Borrower to any
Affiliate. Except as disclosed on Exhibit B attached hereto, there is no
Indebtedness for borrowed money owing by any Affiliate to any Borrower or any
Subsidiary of any Borrower.
3.18 Subsidiaries. As of the date of this Agreement, all of the
Subsidiaries of each Borrower are as set forth on Exhibit F attached hereto.
Each Borrower is the owner, free and clear of all liens and encumbrances, of all
of the issued and outstanding capital stock of each of its Subsidiaries. All
shares of such capital stock have been validly issued
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and are fully paid and nonassessable, and no rights to subscribe to any
additional shares have been granted, and no options, warrants or similar rights
are outstanding.
3.19 Interdependence of Borrowers. In order to induce the Agent and
each Bank to enter into this Agreement and the other Loan Documents to which it
is a party, and grant the Revolving Loans hereunder, the Borrowers hereby
jointly and severally represent and warrant that: (i) the business of each
Borrower shall benefit from the successful performance of the business of each
other Borrower, and all of the Borrowers as a group; (ii) each Borrower has
cooperated to the extent necessary and shall continue to cooperate with each
other Borrower to the extent necessary in the development and conduct of each
other Borrower's business, and shall to the extent necessary share and
participate in the formulation of methods of operation, distribution, leasing,
inventory control, and other similar business matters essential to each
Borrower's business; (iii) the business of each Borrower shall continue to
benefit from the maintenance with the other Borrowers of common facilities and
the sharing with the other Borrowers of officers, directors and staff personnel,
and shall benefit from reporting its financial results on a Consolidated basis
with the other Borrowers; (iv) the failure of any Borrower to cooperate with the
other Borrowers in the conduct of their respective businesses shall have an
adverse impact on the business of each Borrower; and (v) the failure of any
Borrower to associate or cooperate with the other Borrowers is reasonably likely
to impair the goodwill of such Borrower and of all of the Borrowers as a group.
SECTION 4. CONDITIONS OF LOANS.
4.1 Conditions of Initial Loans. The obligation of each Bank to make
the initial Revolving Loan hereunder shall be subject to the satisfaction, prior
thereto or concurrently therewith, of each of the following conditions
precedent:
4.1.1 Receipt by the Agent of the following documents,
certificates and opinions in form and substance satisfactory to the Agent and
each Bank and duly executed and delivered by the parties thereto:
(i) This Agreement;
(ii) The Notes, substantially in the form of
Exhibit A attached hereto;
(iii) A certified copy of resolutions of each
Borrower's Board of Directors evidencing the
due authorization, execution and delivery of
this Agreement, the Notes and the other Loan
Documents to which such Borrower is a party
and the transactions contemplated hereby;
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(iv) Certificates as of the date hereof signed by
each of the President and Clerk (or Assistant
Clerk) or Secretary (or Assistant Secretary)
regarding the incumbency and true signature
of the officers authorized to sign the
documents referred to in this Section 4.1.1
and all other documents and instruments
related to the Loans and the transactions
contemplated hereby;
(v) A written legal opinion addressed to the
Agent and each Bank from Messrs. Xxxxxxx,
Procter & Xxxx LLP, in or substantially in
the form of Exhibit E attached hereto;
(vi) Certifications from governmental officials
evidencing the legal existence and corporate
and tax good standing of each Borrower as of
the most recent practicable date (it being
agreed, however, that certifications
evidencing each Borrower's tax good standing
will be delivered as soon as available after
the date of this Agreement);
(vii) Certified copies of each Borrower's charter
or other incorporation documents as in effect
on such date of certification and its by-laws
as in effect on such date; and
(viii) The disclosure letter referred to on Exhibit
B attached hereto.
4.1.4 The representations and warranties contained in Section
3 shall be true and accurate on and as of the date of the initial Revolving
Loan, the Borrowers shall have performed and complied with all covenants and
conditions required in this Agreement to be performed or complied with by them
prior to the making of such Loan, and no event shall have occurred and be
continuing and no condition shall exist, or would result from the Loans to be
made on the date hereof or the transactions contemplated hereby, which would
constitute, or with the passage of time or the giving of notice, or both, would
constitute, an Event of Default.
4.1.5 The Borrowers shall have provided the Agent with such
additional instruments, certificates, opinions and other documents as the Agent,
either Bank or its counsel shall reasonably request.
4.1.6 No change in applicable law or regulation shall have
occurred as a consequence of which it shall have become and continue to be
unlawful (i) for the Agent or either Bank to perform any of its agreements or
obligations under any of the Loan Documents to which it is a party on the date
of the initial Revolving Loan, or (ii) for any
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Borrower to perform any of its agreements or obligations under any of the Loan
Documents to which it is a party on the date of the initial Revolving Loan.
4.1.7 All corporate, governmental and other proceedings in
connection with the transactions contemplated by the Loan Documents and all
instruments and documents incidental thereto, shall be in form and substance
reasonably satisfactory to the Agent and each Bank, and the Agent shall have
received all such counterpart originals or certified or other copies of all such
instruments and documents as the Agent or either Bank shall have reasonably
requested.
4.1.8 The Agent and each Bank shall be satisfied that the
financial statements referred to in Section 3.7 hereof fairly present the
business and financial condition of the Borrowers and their respective
Subsidiaries as at the close of business on the date thereof and the results of
operations for the periods then ended, and that there has been no material
adverse change in the assets, business or financial condition of the Borrowers
or their respective Subsidiaries since the most recent financial statements
referred to therein (except as described on Exhibit B attached hereto).
4.1.9 The Borrowers shall have reimbursed the Agent for all of
the fees and disbursements of Messrs. Goulston & Storrs, counsel to the Agent,
which shall have been incurred by the Agent in connection with the preparation,
negotiation, execution and delivery of the Loan Documents.
4.2 Conditions to all Revolving Loans. The obligations of the Banks to
make any Revolving Loan shall be subject to the satisfaction, prior thereto or
concurrently therewith, of each of the following conditions precedent:
4.2.1 The representations and warranties contained in this
Agreement or otherwise made in writing by or on behalf of the Borrowers or any
of their respective Subsidiaries pursuant hereto or in connection with the
transactions contemplated hereby shall be true and correct in all material
respects at the time of each such Revolving Loan (except for representations and
warranties limited as to time or with respect to a specific event, which
representations and warranties shall continue to be limited to such time or
event) with and without giving effect to the Revolving Loans to be made at such
time and the application of the proceeds thereof. The Agent and the Banks may
without waiving this condition consider it fulfilled, and a representation by
the Borrowers to such effect made, if no written notice to the contrary, dated
the date of such Revolving Loan, is received from the Borrowers. In the event
that the Borrowers submit a written notice as contemplated by the preceding
sentence, the conditions set forth in this Section 4.2.1 will be considered
fulfilled if such notice specifies in detail the exceptions to the
representations and warranties as of the date of such Revolving Loan, the
exceptions as stated in such notice are satisfactory to the Agent and the Banks
and the Agent so notifies the Borrowers.
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4.2.2 At the time of each such Revolving Loan: (i) the
Borrowers shall have performed and complied in all material respects with all
agreements and conditions contained in this Agreement required to be performed
or complied with by them prior to or at such time; and (ii) no condition or
event that constitutes an Event of Default or that, after notice or lapse of
time or both, would constitute an Event of Default shall have occurred and be
continuing.
SECTION 5. COVENANTS.
The Borrowers hereby jointly and severally covenant with the Agent and
each Bank and warrant that, from the date hereof and so long as any part of the
Revolving Credit Commitment remains in effect and until such later date as all
of the Obligations under this Agreement are paid and satisfied in full:
5.1 Financial Reporting. The Borrowers shall furnish to the Agent and
each Bank:
(i) as soon as available to the Borrowers, but in any event
within one hundred and twenty (120) days after each fiscal year-end,
the Consolidated balance sheet of the Borrowers and their respective
Subsidiaries as at the end of, and related Consolidated statements of
income, retained earnings and cash flow for, such fiscal year, prepared
in accordance with GAAP and certified by the Borrowers' Accountants;
and concurrently with such financial statements, (a) a written
statement by the Borrowers' Accountants that, in the making of the
audit necessary for their report and opinion upon such Consolidated
financial statements, they have obtained no knowledge of any Event of
Default, or knowledge of any event which, with the passage of time,
will constitute such an Event of Default, or, if in the opinion of such
accountant such Event of Default or event exists, they shall disclose
in such written statement the nature and status thereof, and (b) a
consolidating "flash report" of the Borrowers and their respective
Subsidiaries in substantially the form of Exhibit G hereto (a "Report")
for the fiscal year then ended, certified by the chief financial
officer of Courier;
(ii) as soon as available to the Borrowers, but in any event
within sixty (60) days after the end of each of the first three fiscal
quarters of each fiscal year of the Borrowers and their respective
Subsidiaries, the unaudited Consolidated balance sheet of the Borrowers
and their respective Subsidiaries as at the end of, and related
unaudited Consolidated statements of income, retained earnings and cash
flow for, the portion of the fiscal year then ended and for the fiscal
quarter then ended (all in reasonable detail), prepared in accordance
with GAAP (subject to normal year-end adjustments), and certified by
the chief financial officer of Courier; and concurrently with such
financial statements, a consolidating Report
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of the Borrowers and their respective Subsidiaries for the fiscal
quarter then ended, certified by the chief financial officer of
Courier;
(iii) promptly as they become available, copies of all such
financial statements, proxy material and reports as Courier shall send
to or make generally available to stockholders and of all regular and
periodic reports filed by any Borrower or any of its Subsidiaries with
any securities exchange or with the Securities and Exchange Commission
or any governmental authority succeeding to any or all of the functions
of said Commission;
(iv) from time to time, such other financial data and
information about any Borrower and any Subsidiary of any Borrower as
the Agent or any Bank may reasonably request;
(v) concurrently with each delivery of financial statements
pursuant to clause (i) and clause (ii) of this Section 5.1, a report in
substantially the form of Exhibit D hereto signed by the chief
financial officer of Courier; and
(vi) as soon as available to the Borrowers following the
approval thereof by its Board of Directors, but in any event prior to
December 1 of each fiscal year, pro forma Consolidated projections for
the Borrowers and their respective Subsidiaries for such fiscal year,
including projected balance sheets, income statements, cash flow
statements and such other statements as the Agent or any Bank may
reasonably request and in form and substance reasonably satisfactory to
the Agent and the Banks, all prepared on a basis consistent with the
financial statements required by clause (i) of this Section.
For purposes of this Section 5.1, each Borrower hereby acknowledges and agrees
that each certificate signed by the chief financial officer of Courier pursuant
to this Section 5.1 shall have the same effect as if signed by each individual
Borrower.
5.2 Conduct of Business. Each of the Borrowers will and will cause each
of its respective Subsidiaries to:
(i) duly observe and comply with all applicable laws and all
requirements of any governmental authorities relative to its corporate
existence, rights and franchises, to the conduct of its business and to
its property and assets (except where the failure to observe and comply
would not materially and adversely affect the condition (financial or
otherwise), properties, business or results of operations of the
Borrowers and their respective Subsidiaries taken as a whole or the
ability of the Borrowers to perform their respective obligations to the
Agent and the Banks, and shall maintain and keep in full force and
effect all licenses and permits necessary in any material respect to
the proper conduct of its business; and
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(ii) maintain its corporate existence, except as permitted by
Section 5.8 hereof, and remain or engage in substantially the same
business as that in which it is now engaged plus reasonable extensions
and expansions thereof, except that any Borrower or any Subsidiary of
any Borrower may, upon notice to the Agent, withdraw from any business
activity which its Board of Directors reasonably deems unprofitable or
unsound.
5.3 Maintenance and Insurance. Each of the Borrowers will and will
cause its respective Subsidiaries to maintain and keep its properties in such
repair, working order and condition as shall be in the best interests of its
business, and from time to time make all needful and proper repairs, renewals,
replacements, additions and improvements thereto as such Borrower, in the
exercise of its reasonable judgment, deems necessary or advisable so that its
business may be properly conducted at all times, and will comply with the
provisions of all material leases to which it is a party or under which it
occupies property so as to prevent any material loss or forfeiture thereof or
thereunder; but nothing in this Section 5.3 shall prevent any Borrower or any
Subsidiary of any Borrower from selling, abandoning or otherwise disposing of
any property or lease if such property or lease is no longer useful in the
business of such Borrower or such Subsidiary. Each of the Borrowers at all times
will and will cause its Subsidiaries to maintain with financially sound and
reputable insurance companies insurance, in such amounts (including, without
limitation, so-called "all-risk" coverage at replacement value and "broad form"
liability coverage), against such hazards and liabilities and for such purposes
as may be reasonable and is customary in the industry for companies of
established reputation engaged in the same or similar businesses and owning or
operating similar properties.
5.4 Taxes. Each of the Borrowers and its Subsidiaries will pay or cause
to be paid all taxes, assessments or governmental charges on or against it or
its properties prior to such taxes becoming delinquent, except for any tax,
assessment or charge which is being contested in good faith by proper legal
proceedings (to the extent legal proceedings are applicable) and with respect to
which reserves required by GAAP have been established and are being maintained,
provided that no enforcement action to enforce a lien has been commenced against
any Borrower or its Subsidiaries with respect to any such tax, assessment or
charge which is material in amount.
5.5 Limitation of Indebtedness. Except with the prior written consent
of the Agent and each Bank, no Borrower will, or will cause or permit any of its
Subsidiaries at any time to, create, incur, assume or suffer to exist, or in any
manner become or be liable directly or indirectly with respect to, any
Indebtedness except: (i) the Obligations; (ii) Indebtedness for borrowed money
existing on the date of this Agreement, listed and described, but only to the
extent so listed and described, on Exhibit C attached hereto; (iii) Indebtedness
for the purchase price of capital assets and capitalized leases incurred in the
ordinary course of business, subject, however, to the limitations set forth in
Section 5.7 hereof; (iv) Indebtedness for taxes, assessments or governmental
charges to the extent
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that payment therefor shall at the time not be required to be made in accordance
with Section 5.4 hereof; (v) Indebtedness on open account for the purchase price
of services, materials and supplies incurred by a Borrower in the ordinary
course of business (not as a result of borrowing), so long as all of such open
account Indebtedness shall be promptly paid and discharged when due or in
conformity with customary trade terms and practices, except for any such open
account Indebtedness which is being contested in good faith by such Borrower, as
to which adequate reserves required by GAAP have been established and are being
maintained and as to which no encumbrance has been placed on any property of
such Borrower; (vi) Indebtedness for borrowed money of any Borrower to another
Borrower; provided that such Indebtedness for borrowed money is on normal and
customary terms as to form, interest rate and covenants, and is unsecured by any
liens, charges or encumbrances whatsoever; (vii) except as otherwise permitted
in this Section 5.5, Indebtedness for borrowed money of Courier; provided that
(a) all such Indebtedness for borrowed money is on normal and customary terms as
to form, interest rate and covenants, (b) such Indebtedness for borrowed money
is unsecured by any liens, charges or encumbrances whatsoever, and (c) on the
date on which such Indebtedness for borrowed money is proposed to be incurred,
(1) no event or condition which constitutes an Event of Default, or which, with
notice or the passage of time, or both, would constitute an Event of Default,
would occur by reason of the incurrence thereof, and (2) no breach of the
covenants, agreements or obligations contained in Sections 5.24 through 5.26,
inclusive, or 5.29 of this Agreement would occur by reason of the incurrence
thereof if such covenants were measured as of the date such Indebtedness for
borrowed money is proposed to be incurred; and (viii) Indebtedness for borrowed
money of any Borrower resulting from its borrowing against the cash surrender
value of a key life insurance policy owned by such Borrower.
5.6 Guaranties. No Borrower shall, or shall cause or permit any of its
Subsidiaries at any time to, become or be liable by way of guaranty, surety or
other arrangement for the Indebtedness or obligations of any nature or kind of
any other Person (including any Subsidiary of any Borrower); except (i) for
endorsement of instruments for collection in the ordinary course of business,
(ii) guaranties by a Borrower of any Indebtedness or other obligations of any of
its Subsidiaries, so long as (a) such Indebtedness or other obligation is not
prohibited by this Agreement, and (b) on the date on which such guaranty is
proposed to be given, (1) no event or condition which constitutes an Event of
Default, or which, with notice or the passage of time, or both, would constitute
an Event of Default, would occur by reason of the entering into thereof, and (2)
no breach of the covenants, agreements or obligations contained in Sections 5.24
through 5.26, inclusive, or 5.29 of this Agreement would occur by reason of the
entering into thereof if such covenants were measured as of the date such
guaranty is proposed to be given, and (iii) as set forth on Exhibit B attached
hereto.
5.7 Restrictions on Liens. No Borrower shall, or shall cause or permit
any of its Subsidiaries at any time to, create, incur, assume or suffer to exist
any mortgage, pledge, security interest, lien or other charge or encumbrance,
including the lien or
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retained security title of a vendor, ("Encumbrances") upon or with respect to
any property or assets, real or personal, of such Borrower, or assign or
otherwise convey any right to receive income, except:
(i) Encumbrances existing on the date of this Agreement and
set forth on Exhibit B attached hereto; or
(ii) In addition to the Encumbrances referred to in clause (i)
hereof, Encumbrances securing Indebtedness for the purchase price of
capital assets and capitalized leases to the extent such Indebtedness
is permitted by Section 5.5(iii) hereof, provided that (a) each such
Encumbrance is given solely to secure the purchase price of such
property, does not extend to any other property and is given at the
time of acquisition of the property, and (b) the Indebtedness secured
thereby does not exceed the lesser of the cost of such property or its
fair market value at the time of acquisition; or
(iii) Liens for taxes, fees, assessments and other
governmental charges to the extent that payment of the same is not
required in accordance with the provisions of Section 5.4 hereof; or
(iv) Encumbrances in favor of the Agent, for the ratable
benefit of the Banks; or
(v) Liens of mechanics, laborers, materialmen, carriers and
warehousemen arising by operation of law to secure payment for labor,
materials, supplies or services incurred in the ordinary course of such
Borrower's business, but only if the payment thereof is not at the time
required, such liens are junior to Encumbrances in favor of the Agent
and such liens do not, individually or in the aggregate, materially
detract from the value or limit the use of any property subject
thereto; or
(vi) Deposits made in the ordinary course of such Borrower's
business in connection with workmen's compensation, unemployment
insurance, social security and other similar laws.
5.8 Merger, Acquisitions and Purchase and Sale of Assets. No Borrower
shall, or shall cause or permit any of its Subsidiaries at any time to,
consolidate or merge with or into any other corporation or other entity,
liquidate and/or dissolve, acquire the assets or stock of any entity, or sell,
lease, transfer or otherwise dispose of all or any substantial part of its
assets, either by or through a single transaction or by or through a series of
separate but related transactions, except:
(i) that (a) a wholly-owned Subsidiary of such Borrower may be
merged or consolidated with such Borrower or any other Borrower if a
Xxxxxxxx
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xxxxx xx the continuing or surviving corporation or with any one or
more other wholly-owned Subsidiaries of any Borrower if the successor
formed or resulting from such consolidation or merger shall be a
wholly-owned Subsidiary of a Borrower, and (b) a wholly-owned
Subsidiary of such Borrower may be liquidated and dissolved so long as
all of its properties and assets have been (or, in connection with any
such liquidation or dissolution, are) distributed to such Borrower; and
(ii) in connection with acquisitions of interests in other
corporations or business entities engaged in the same business in which
such Borrower or Subsidiary is now engaged or in a reasonable extension
or expansion thereof (either through the purchase of assets or capital
stock or otherwise), provided that (a) except as permitted by Section
5.7 hereof, the properties and assets acquired in connection with such
acquisitions shall be free from all liens, charges and encumbrances
whatsoever, (b) in the case of an acquisition of the stock of any
entity, such entity shall, immediately after such acquisition, become a
wholly-owned Subsidiary of such Borrower (except to the extent
otherwise permitted by Section 5.9(xi) hereof), and (c) on the date on
which such acquisition is proposed to be made, (1) no event or
condition which constitutes an Event of Default, or which, with notice
or the passage of time, or both, would constitute an Event of Default,
would occur by reason of the consummation thereof, and (2) no breach of
the covenants, agreements or obligations contained in Sections 5.24
through 5.26, inclusive, or 5.29 of this Agreement would occur by
reason of the consummation thereof if such covenants were measured as
of the date such acquisition is proposed to be made (it being agreed
that the Borrowers shall have furnished to the Agent, on or before the
10th day preceding the consummation of the proposed acquisition, a pro
forma calculation showing to the satisfaction of the Agent and the
Banks the Borrowers' compliance with such covenants); and
(iii) the sale or other disposition of assets of such Borrower
or Subsidiary, so long as (a) all of the proceeds from such sale or
disposition shall be retained by such Borrower or Subsidiary (as the
case may be), and (b) on the date on which such sale or disposition is
proposed to be made, (1) no event or condition which constitutes an
Event of Default, or which, with notice or the passage of time, or
both, would constitute an Event of Default, would occur by reason of
the consummation of such sale or disposition, and (2) no breach of the
covenants, agreements or obligations contained in Sections 5.24 through
5.26, inclusive, or 5.29 of this Agreement would occur by reason of the
consummation thereof if such covenants were measured as of the date
such sale or disposition is proposed to be made.
5.9 Investments and Loans. No Borrower shall, or shall cause or permit
any of its Subsidiaries at any time to, make or have outstanding at any time any
investments in or loans to any other Person (including any Subsidiary of such
Person), whether by
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way of advance, guaranty, extension of credit, capital contribution, purchase of
stocks, notes, bonds or other securities or evidences of Indebtedness, or
acquisition of limited or general partnership interests, other than: (i) in
obligations of the United States of America or any agency or instrumentality
thereof, maturing within three years of their issuance; (ii) in time
certificates of deposit, bankers' acceptances or repurchase agreements, maturing
within one year of their issuance, from banks in the United States having
capital, surplus and undivided profits in excess of $100,000,000; (iii) in short
term commercial paper rated Prime-1 by Xxxxx'x Investor Service, Inc. or A-1 by
Standard and Poors Corporation rating services and issued by corporations
headquartered in the United States, in currency of the United States of America;
(iv) advances to employees for business related expenses to be incurred in the
ordinary course of business and consistent with past practices in an amount not
to exceed $50,000 in the aggregate outstanding at any one time; (v) investments
in addition to those permitted in this Section 5.9 which do not exceed in the
aggregate $5,000,000, so long as such investments are not made for the purpose
specified in clause (vi) below, and so long as on the date on which any such
investment is proposed to be made, (1) no event or condition which constitutes
an Event of Default, or which, with notice or the passage of time, or both,
would constitute an Event of Default, would occur by reason of the making of
such investment, and (2) no breach of the covenants, agreements or obligations
contained in Sections 5.24 through 5.26, inclusive, or 5.29 of this Agreement
would occur by reason of the making thereof if such covenants were measured as
of the date such investment is proposed to be made; (vi) in connection with
acquisitions of interests in other corporations or business entities to the
extent permitted under Section 5.8(ii) hereof; (vii) in any wholly-owned
Subsidiary; provided, that immediately prior to and after giving effect to such
investment, no Event of Default shall exist; (viii) in marketable direct
obligations issued by any state of the United States of America or any political
subdivision of any such state or any public instrumentality thereof maturing not
more than one year from the date of acquisition thereof and, at the time of
acquisition, having the highest rating obtainable from Standard and Poors
Corporation or Xxxxx'x Investor Service, Inc.; (ix) in shares of money-market
mutual funds having assets in excess of $100,000,000 and substantially all of
the assets of which consist of investments referred to in clauses (i) through
(iii), inclusive, and clause (viii), above; (x) loans from a Borrower to another
Borrower to the extent permitted by Section 5.5(vi) hereof; and (xi) in any
Subsidiary of a Borrower which is not wholly-owned by such Borrower, provided
that (a) the aggregate amount of all such investments by the Borrowers shall not
exceed $10,000,000 at any time, and (b) immediately prior to and after giving
effect to any such investment, no Event of Default shall exist.
5.10 Sale of Notes. No Borrower shall, or shall cause or permit any of
its Subsidiaries at any time to, sell, discount or dispose of any note,
instrument, account, or other obligation owing to such Borrower or such
Subsidiary in an amount that is material to the Borrowers and their respective
Subsidiaries taken as a whole, except to either of the Banks.
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5.11 Restricted Payments. No Borrower shall, directly or indirectly
(through any Affiliate or any Subsidiary or otherwise), declare, pay or make any
Restricted Payment, unless (i) no event or condition which constitutes an Event
of Default, or which, with notice or the passage of time, or both, would
constitute an Event of Default, would occur by reason of the taking of such
action, and (ii) no breach of the covenants, agreement or obligations contained
in Sections 5.24 through 5.26, inclusive, or 5.29 of this Agreement would occur
by reason of the taking of such action if such covenants were measured as of the
date such action is proposed to be taken.
5.12 ERISA Compliance. None of the Borrowers nor their respective
Affiliates (as defined solely in the second sentence of Section 1.2), no Pension
Plan, Plan or trust created thereunder, and no trustee, administrator or
fiduciary thereof shall engage in any Prohibited Transaction (provided that the
foregoing shall not apply to actions of an unrelated institutional trustee,
administrator or fiduciary to the extent the Agent and each Bank reasonably
believes it will bear no liability, either directly or indirectly, through any
Pension Plan, Plan or otherwise, for the actions of such institution); none of
the Borrowers nor their respective Affiliates and no Pension Plan or trust
created thereunder shall incur any "accumulated funding deficiency" (as defined
in Section 412(a) of the Code and Section 302 of ERISA) whether or not waived,
or shall fail to satisfy any additional funding requirements set forth in
Section 412 of the Code and Section 302 of ERISA; none of the Borrowers nor
their Affiliates, no trustee thereof and no administrator or fiduciary thereof
shall terminate any Pension Plan in a manner which could result in the
imposition of a lien on any property of any Borrower or any of its Affiliates;
and each Plan and Pension Plan shall comply in all material respects with ERISA.
5.13 Pension Plans.
(a) With respect to any Pension Plans, the Borrowers shall, or
shall cause their respective Affiliates (as defined solely in the
second sentence of Section 1.2) to:
(i) fund on a timely basis each Pension Plan as
required by the provisions of Section 412 of the Code
and Section 302 of ERISA;
(ii) cause each Pension Plan to pay all benefits when
due in accordance with applicable law; and
(iii) furnish to the Agent (A) written notice of the
occurrence of a Reportable Event (as such term is
defined in Section 4043 of ERISA), such notice to be
given within thirty (30) days after such Borrower or
any Affiliate knows or has reason to know that a
Reportable Event has occurred with respect to a
Pension Plan; (B) a copy of any request for a waiver
of the funding standards or
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an extension of the amortization periods required
under Section 412 of the Code and Section 302 of
ERISA, such copy to be furnished no later than the
date of submission of the request to the Department
of Labor or to the Internal Revenue Service (the
"IRS"), as the case may be; (C) a copy of any notice
of intent to terminate any Pension Plan such copy to
be furnished no later than the date of submission to
the PBGC or, if earlier, the date on which those
participating in the Pension Plan are notified of the
intended termination; and (D) notice that any
Borrower or any Affiliate, will or may incur any
liability to or on account of a Pension Plan under
Section 4062, 4063, 4064, 4201 or 4204 of ERISA, such
notice to be given within ten (10) days after such
Borrower or any Affiliate knows or has reason to know
thereof. Any notice to be provided to the Agent under
this Section shall include a certificate of the chief
financial officer of such Borrower setting forth
details as to such occurrence and the action, if any,
which such Borrower or such Affiliate is required or
proposes to take, together with any notices required
or proposed to be filed with or by such Borrower,
such Affiliate, the PBGC, the IRS, the trustee or the
plan administrator with respect thereto.
(b) Each Borrower shall furnish to the Agent, promptly upon
the request of the Agent or either Bank, a copy of the annual report of
each Pension Plan or Plan (Form 5500 or comparable form) required to be
filed with the IRS and/or the Department of Labor.
(c) Promptly after the adoption of any Plan (other than a Plan
which is intended to substitute a Plan listed in Exhibit B attached
hereto and is substantially similar to such Plan listed in Exhibit B)
or Pension Plan subject to ERISA or of any amendment to any Pension
Plan which results in a significant under-funding within the meaning of
Section 401(a)(29) of the Code and Section 307 of ERISA, each Borrower
shall notify the Agent of such adoption and of the vesting and funding
schedules and other principal provisions thereof.
5.14 Notification of Default. Upon becoming aware of the existence of
any condition or event which would cause an Event of Default, or any condition
or event which would upon notice or passage of time, or both, constitute an
Event of Default, the Borrowers shall promptly give the Agent written notice
thereof specifying the nature and duration thereof and the action being or
proposed to be taken with respect thereto.
5.15 Notification of Material Litigation. The Borrowers shall promptly
notify the Agent in writing of any litigation or of any investigative
proceedings (civil or criminal) of a governmental agency or authority commenced
or known to be threatened against any of them or any of their respective
Subsidiaries which would, if adversely
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decided, have a material and adverse effect on the business or the financial
condition of the Borrower and their respective Subsidiaries taken as a whole.
5.16 Inspection by the Agent and the Banks. Each Borrower shall and
shall cause its Subsidiaries to permit the Agent and each Bank or its designees,
at any reasonable time and from time to time, to visit and inspect the
properties of such Borrower and its Subsidiaries, to examine and make copies of
and take abstracts from the books and records of such Borrower and its
Subsidiaries, and to discuss the affairs, finances and accounts of such Borrower
and its Subsidiaries, with appropriate officers. The Agent and each Bank agree
to take all reasonable steps to keep confidential any and all of the information
obtained from such inspection, other than information contained in documents
filed by any Borrower with any public agency which are generally available to
the public or through the use of the Freedom of Information Act or any
equivalent statute, and any other information in any public record; provided
that such information may be made available for inspection and examination by
(i) any governmental regulatory authority having jurisdiction over the Agent or
any Bank, (ii) any independent auditors of the Agent or any Bank, and (iii) upon
receipt of the prior consent of the Borrowers, which consent may not be
unreasonably withheld, any potential Assignees and Participants.
5.17 Maintenance of Books and Records. Each Borrower shall and shall
cause its Subsidiaries to keep adequate books and records of account in which
true and complete entries will be made reflecting all of its business and
financial transactions. Such books and records shall form the basis for
preparing the Consolidated financial statements of Courier and its Subsidiaries
in accordance with GAAP, and such entries will be made in accordance with
applicable law including, without limitation, laws with respect to questionable,
improper or corrupt payments.
5.18 Use of Proceeds. Each Borrower shall use the proceeds of the
Revolving Loans for the working capital needs of such Borrower and its
Subsidiaries and for any other purpose permitted hereunder, including for
purposes of making acquisitions to the extent permitted by Section 5.8 hereof.
5.19 Transactions with Affiliates. No Borrower shall, or shall cause or
permit any of its Subsidiaries at any time to, directly or indirectly enter into
any material purchase, sale, lease or other transaction with any Affiliate
except in the ordinary course of business on terms that are no less favorable to
such Borrower or any such Subsidiary than those which might be obtained at the
time in a comparable arm's length transaction with any Person who is not an
Affiliate.
5.20 Environmental Regulations.
(a) Each Borrower shall and shall cause its Subsidiaries to
comply in all material respects with all applicable Environmental Laws (as such
term is defined in Section 3.15 hereof), in all jurisdictions in which any of
them operates now or in the
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future, and each Borrower shall, and shall cause its Subsidiaries to comply in
all material respects with all such laws and regulations that may in the future
be applicable to such Borrower, its Subsidiaries, and their respective
properties and assets.
(b) If any Borrower or any of its Subsidiaries shall (i)
receive notice that any material violation of any Environmental Law may have
been committed by any Borrower or any of their respective Subsidiaries, (ii)
receive notice that any administrative or judicial complaint or order has been
filed against any Borrower or any of their respective Subsidiaries alleging a
violation of any Environmental Law or requiring any Borrower to take any action
in connection with the release of toxic or hazardous wastes or materials into
the environment, or (iii) receive any notice from a federal, state, or local
governmental agency alleging that any Borrower or any of their respective
Subsidiaries may be liable or responsible for any costs associated with a
response to or cleanup of a release of hazardous wastes or materials into the
environment or any damages caused thereby, such Borrower shall provide the Agent
with a copy of such notice within ten (10) days after such Borrower's or its
Subsidiary's receipt thereof. Within fifteen (15) days after any Borrower has
learned of the enactment or promulgation of any Environmental Law which may
result in any material adverse change in the condition (financial or otherwise),
properties, business or results of operations of the Borrowers and their
respective Subsidiaries taken as a whole, such Borrower shall provide the Agent
with notice thereof.
5.21 Fiscal Year. The Borrowers and their respective Subsidiaries shall
have fiscal years ending on the last Saturday in September of each year and
shall not change such fiscal years without the prior written consent of each
Bank; provided that so long as Courier is required to file reports with the
Securities Exchange Commission pursuant to the Securities Act of 1933 or the
Securities Exchange Act of 1934, each as amended, the Borrowers and their
Subsidiaries shall be permitted to change such fiscal years (all to the same
date) upon thirty (30) days' prior written notice thereof to the Agent
(whereupon the Banks shall have the right to modify the timing of the financial
covenants hereunder accordingly in order to correspond to any such change in the
fiscal years of the Borrowers and their respective Subsidiaries).
5.22 No Amendments to Certain Documents. No Borrower shall at any time
cause or permit any of the charter or other incorporation documents or by-laws
of such Borrower or any of its Subsidiaries to be modified, amended or
supplemented in any respect whatever, without (in each case) the express prior
written agreement, consent or approval of each Bank, except for any such
modification, amendment or supplement as would not, on the date on which
proposed to be made, cause (a) an Event of Default or an event which, with
notice or the passage of time, or both, would constitute an Event of Default, or
(b) a breach of the financial covenants contained in Sections 5.24 through 5.26,
inclusive, or 5.29 of this Agreement if such covenants were measured as of the
date such modification, amendment or supplement is proposed to be made.
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5.23 No Termination of Certain Documents. No Borrower shall at any time
directly or indirectly terminate, cancel or rescind, or cause or permit, or
otherwise agree or consent to or approve, the termination, cancellation or
rescission of, any of the Loan Documents without (in each case) the express
prior written agreement, consent or approval of each Bank.
5.24 Debt to Worth Ratio. The Borrowers shall not cause or permit the
ratio of (i) total Consolidated Indebtedness to (ii) Tangible Net Worth at the
end of any fiscal quarter of the Borrowers to be greater than 2.0 to 1.
5.25 Current Ratio. The Borrowers shall not cause or permit the ratio
of (i) Current Assets to (ii) Current Liabilities at the end of any fiscal
quarter of the Borrowers to be less than 1.50 to 1.
5.26 Debt Service Coverage. At the end of each fiscal quarter, for the
preceding four consecutive fiscal quarters commencing with the fiscal quarter
ending March 29, 1997, the Borrowers shall not cause or permit the ratio of (i)
Consolidated Operating Cash Flow to (ii) Consolidated Total Debt Service to be
less than 4.0 to 1.
5.27 Subsidiaries. The Borrowers shall give the Agent written notice of
the formation after the date hereof of any Subsidiary, and agree that they shall
cause any such Subsidiary to engage in the business of conducting branches or
divisions of the business now conducted by the Borrowers (or reasonable
extensions or expansions thereof) or holding any of the property of any
Borrower.
5.28 Name Change. The Borrowers shall give the Agent thirty (30) days'
prior written notice of any change in the name or corporate form of any Borrower
or in the name under which its business is transacted.
5.29 Capital Expenditures. The Borrowers shall not make any Capital
Expenditures in excess of $9,000,000 in the aggregate in any fiscal year.
SECTION 6. EVENTS OF DEFAULT; ACCELERATION.
6.1 Any or all of the Obligations of the Borrowers to the Agent and the
Banks shall, at the option of the Banks (acting through the Agent) and
notwithstanding the provisions of any instrument evidencing an Obligation, be
immediately due and payable without notice or demand upon the occurrence and
continuation of any of the following events of default (individually, an "Event
of Default"):
(i) any principal payable under this Agreement or any Note
shall not be paid within five (5) days after the date on which the same shall
have first become due and payable; or
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(ii) any interest or any other sum (except principal) payable
to the Agent or either Bank under any of the Loan Documents shall not be paid
punctually on the date on which the same shall have first become due and
payable, and such failure to pay under this clause (ii) shall continue for more
than one (1) day after the earlier of the date on which a principal officer of
any Borrower shall have first become aware of such failure to pay or the Agent
or either Bank shall have first notified any Borrower of such failure to pay; or
(iii) (a) any Borrower shall fail to perform, comply with or
observe or shall otherwise breach any one or more of its covenants, agreements
or obligations contained in the last paragraph of Section 2.5.1(ii) of this
Agreement, or in Sections 5.5 through 5.8, inclusive, 5.14, 5.20, 5.23 through
5.26, inclusive, and 5.29 of this Agreement; or (b) any Borrower shall fail to
perform, comply with or observe or shall otherwise breach any one or more of its
covenants, agreements or obligations contained in Sections 5.9, 5.22, and 5.27
of this Agreement and such failure under this clause (b) shall continue for more
than five (5) days after the earlier of the date on which any Borrower shall
have first become aware of such failure or breach or the Agent or either Bank
shall have first notified any Borrower of such failure or breach; or (c) any
Borrower shall fail to perform, comply with or observe or shall otherwise breach
any one or more of its covenants, agreements or obligations contained herein
(other than those specified in clauses (a) and (b) hereof) or in any other Loan
Document to which such Borrower is a party and such failure under this clause
(c) shall continue for more than thirty (30) days after the earlier of the date
on which any Borrower shall have first become aware of such failure or breach or
the Agent or either Bank shall have first notified such Borrower of such failure
or breach; or
(iv) any representation or warranty at any time made by or on
behalf of any Borrower in any Loan Document or in any certificate, written
report or statement furnished to the Agent or either Bank pursuant thereto shall
prove to have been false in any material respect upon the date when made or
deemed to have been made; or
(v) any Borrower or any Subsidiary of any Borrower shall fail
to pay when due, or within any applicable period of grace (not to exceed thirty
(30) days), obligations for borrowed money, or fail to observe or perform any
term, covenant or agreement contained in any agreement by which it is bound,
evidencing or securing borrowed money, for such period of time as would permit
(including the giving of appropriate notice if required) the holder or holders
thereof or of any obligations issued thereunder to accelerate the maturity
thereof; excluding, however, from the operation of this clause, obligations for
borrowed money, and agreements in connection therewith, not exceeding $500,000
in the aggregate; or
(vi) any Borrower or any Subsidiary of any Borrower shall (a)
apply for or consent to the appointment of, or the taking of possession by, a
receiver, custodian,
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trustee or liquidator of itself or of all or a substantial part of its property,
(b) be generally not paying its debts as such debts become due, (c) make a
general assignment for the benefit of its creditors, (d) commence a voluntary
case under the Federal Bankruptcy Code (as now or hereafter in effect), (e) file
a petition seeking to take advantage of any other law providing for the relief
of debtors, (f) consent to any petition filed against it seeking an order for
relief under the Bankruptcy Code or of any other law providing for the relief of
debtors, (g) take any action under the laws of its jurisdiction of incorporation
or organization similar to any of the foregoing, or (h) take any corporate
action for the purpose of effecting any of the foregoing; or
(vii) a proceeding or case shall be commenced against any
Borrower or any Subsidiary of any Borrower in any court seeking (a) the
liquidation, reorganization, dissolution, winding up, or composition or
readjustment of its debts, (b) the appointment of a trustee, receiver,
custodian, liquidator or the like of it or of all or any substantial part of its
assets, (c) an order for relief under the Bankruptcy Code, (d) similar relief in
respect of it, under any law providing for the relief of debtors; and any such
proceeding specified in (a) through (d) hereinabove (A) shall not be dismissed
within thirty (30) days from the initiation thereof, or (B) shall not be
contested by such Borrower or such Subsidiary in good faith and with due
diligence; or action under the laws of the jurisdiction of incorporation or
organization of any Borrower or any Subsidiary of any Borrower similar to any of
the foregoing shall be taken with respect to any Borrower or any Subsidiary of
any Borrower and such action shall not be dismissed within thirty (30) days from
the initiation thereof, or during such thirty (30) day period such Borrower or
such Subsidiary shall not contest the same in good faith and with due diligence;
or
(viii) a court shall with respect to any Borrower or any
Subsidiary of any Borrower order or enter (a) the liquidation, reorganization,
dissolution, or composition or readjustment of its debts, (b) the appointment of
a trustee, receiver, custodian, liquidator or the like of it or of all or any
substantial part of its assets, (c) order for relief under the Bankruptcy Code,
(d) similar relief in respect of it, under any law providing for the relief of
debtors, or (e) similar order under the laws of the jurisdiction of
incorporation or organization; or
(ix) judgments or orders for the payment of money shall be
entered against any Borrower or any Subsidiary of any Borrower by any court, or
warrants of attachment or execution or similar process shall be issued or levied
against property of any Borrower or any Subsidiary of any Borrower, which in the
aggregate exceeds $500,000 in value, and the same shall continue unsatisfied and
in effect for a period of thirty (30) days without being vacated, discharged,
satisfied or stayed pending appeal, provided that the total out-of-pocket cost
of any bond applied in order to procure a stay of execution in any such
litigation shall not exceed $50,000; or
(x) any Borrower or any member of the controlled group shall
fail to pay when due a material amount which it shall have become liable to pay
to the PBGC or
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to a Plan under Title IV of ERISA or to a Plan under Section 412 of the Code or
Section 302 of ERISA; or notice of intent to terminate a Plan or Plans having
aggregate Unfunded Benefit Liabilities shall be filed under Title IV of ERISA by
any Borrower or any member of the controlled group, any plan administrator or
any combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be instituted by a
fiduciary of any such Plan or Plans against any Borrower to enforce Section 515
of ERISA and such proceedings shall not have been dismissed within thirty (30)
days thereafter; or a condition shall exist by reason of which the PBGC would be
entitled to obtain a decree adjudicating that any such Plan or Plans must be
terminated; or
(xi) any Loan Document shall be cancelled, terminated, revoked
or rescinded otherwise than in accordance with the express prior written
agreement, consent or approval of each Bank; or any action at law, suit in
equity or other legal proceeding to cancel, revoke or rescind any Loan Document
shall be commenced by or on behalf of any Borrower or any other Person (other
than the Agent or any Bank) bound thereby, or by any court or any other
governmental or regulatory authority or agency of competent jurisdiction; or any
court or any other governmental or regulatory authority or agency of competent
jurisdiction shall make a determination that, or shall issue a judgment, order,
decree or ruling to the effect that, any one or more of the Loan Documents, or
any one or more of the obligations of any Borrower or any other Person under any
one or more of the Loan Documents, are illegal, invalid or unenforceable in any
material respect in accordance with the terms thereof; or
(xii) at any time after the date hereof, any Borrower shall
own, both legally and beneficially, less than one hundred percent (100%) of all
the issued and outstanding Voting Shares of each of its Subsidiaries, which
Subsidiaries are set forth in Exhibit F hereto, or such lesser percentage as
such Borrower may be permitted to own pursuant to Section 5.8 of this Agreement.
6.2 Upon the occurrence of any Event of Default and at any time
thereafter (unless such Event of Default shall theretofore have been remedied or
waived), at the option of the Banks (acting through the Agent): (i) the
Revolving Credit Commitment shall terminate in full, and each of the Banks shall
thereupon be relieved of all of its obligations to make any Revolving Loans
hereunder; (ii) the unpaid principal amount of the Notes together with accrued
interest thereon and all other Obligations shall become immediately due and
payable without presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived; and (iii) the Agent and each of the Banks may
exercise any and all rights it has under this Agreement, the Notes, the other
Loan Documents or any other documents or agreements executed in connection with
the transactions contemplated by this Agreement, or by law or equity, and
proceed to protect and enforce the Agent's and each Bank's rights by any action
at law, suit in equity or other appropriate proceeding, whether for specific
performance or for an injunction
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against a violation of any covenant contained herein or in any Loan Document or
in aid of the exercise of any power granted hereby or thereby or by law.
SECTION 7. SET-OFF
7.1 Any deposits or other sums at any time credited by or due from any
Bank to any Borrower, without notice (any such notice being expressly waived
hereby) and to the fullest extent permitted by law and without regard to any
collateral or other source of payment whatsoever, may at any time after the
occurrence and during the continuance of an Event of Default, be applied to or
set off against Obligations on which any Borrower is primarily liable and may at
or after the maturity thereof be applied to or set off against Obligations on
which any Borrower is secondarily liable, and in furtherance of the foregoing
each Borrower grants the Agent and each Bank a lien on and security interest in
all such deposits to secure payment of the Obligations.
7.2 Any deposits or other sums which at any time may be credited to any
Borrower by or due to it from any Participant may at any time after the
occurrence and during the continuance of an Event of Default, without notice
(any such notice being expressly waived hereby) and to the fullest extent
permitted by law and without regard to any collateral or other source of payment
whatsoever, be applied to or set off by such Participant against the then
outstanding indebtedness of any Borrower hereunder.
SECTION 8. CONCERNING THE AGENT AND THE BANKS.
8.1 Appointment and Authorization. Each of the Banks hereby appoints
SSB, acting through its head office, to serve as Agent under this Agreement and
the other Loan Documents and irrevocably authorizes the Agent to take such
action as Agent on such Bank's behalf under this Agreement and the other Loan
Documents and to exercise such powers and to perform such duties under this
Agreement, the other Loan Documents and the other documents and instruments
executed and delivered in connection with the consummation of the transactions
contemplated hereby as are delegated to the Agent by the terms hereof or
thereof, together with all such powers as are reasonably incidental thereto.
8.2 Agent and Affiliates. SSB shall have the same rights and powers
under this Agreement and the other Loan Documents as each other Bank and may
exercise or refrain from exercising the same as though it were not the Agent,
and SSB and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with any Borrower or Affiliate of any
Borrower as if it were not the Agent hereunder and under the other Loan
Documents. Except as otherwise provided by the terms of this Agreement, nothing
herein shall prohibit any of the Banks from accepting
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deposits from, lending money to or generally engaging in any kind of business
with any Borrower or Affiliate of any Borrower.
8.3 Future Advances. In order to more conveniently administer the
Revolving Loans, FNBB does hereby authorize the Agent and SSB to make all
Revolving Loans and advances, subject to the terms and conditions of this
Agreement, to the Borrowers, which are requested by the Borrowers on any
Business Day. FNBB does hereby further irrevocably agree, whether or not this
Agreement has been terminated, an Event of Default has occurred, the Agent has
accelerated the Obligations or the Agent is proceeding to liquidate any
collateral, to transfer to the Agent on each Business Day, if not already
transferred, sufficient immediately available federal funds to reimburse SSB for
FNBB's respective Commitment Percentage of all Revolving Loans and other
advances made during such Business Day after taking into account payments
received by the Agent. Any payments made by the Agent on behalf of any Borrower
shall constitute Revolving Loans initially made by the Agent at such time as
such funds are actually provided, or such payments are made, by the Agent. All
Revolving Loans and other advances made by the Agent on behalf of FNBB shall be,
for purposes of interest income and other charges, considered loans from FNBB to
the Borrowers at such time as the Agent receives from FNBB funds as provided in
this Section 8.3, and prior to such time such Revolving Loans and advances shall
be considered, for purposes of interest income and other charges, loans from
SSB. The Agent may at any time upon notice to FNBB (i) refuse to make Revolving
Loans and advances on behalf of FNBB unless FNBB shall have provided to the
Agent immediately available federal funds sufficient to cause the outstanding
Revolving Loans to equal each of the Banks' respective Commitment Percentage;
(ii) require FNBB to fund such Revolving Loans and advances before making such
Revolving Loans and advances to the Borrower requesting the same; or (iii)
require that FNBB immediately transfer to the Agent on each Business Day
immediately available federal funds sufficient to cause the outstanding
Revolving Loans to equal each of the Banks' respective Commitment Percentage.
Notwithstanding the provisions hereof, the obligations to make Revolving Loans
and advances under the terms of this Agreement shall be the several and not
joint obligation of FNBB and SSB, and any advances made by the Agent on behalf
of FNBB are strictly for the administrative convenience of the parties and shall
in no way diminish FNBB's liability to the Agent and SSB to repay the Agent for
such Revolving Loans and advances.
8.4 Payments. All payments and prepayments of principal of Loans
received by the Agent shall be paid to each of the Banks pro rata in accordance
with their respective Commitment Percentage. All such payments from the
Borrowers received by the Agent shall be held in trust for the benefit of the
Banks. As each such payment is received by the Agent, the Agent shall promptly
charge or credit each of the Banks to the extent necessary to ensure that as
between them, each of the Banks holds its respective Commitment Percentage of
outstanding Revolving Loans, based on the then unpaid aggregate principal
amounts of the Revolving Loans outstanding.
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8.5 Interest, Fees and Other Payments. (i) All payments of interest
received by the Agent in respect of Revolving Loans, except as otherwise
provided by the terms of this Agreement, and all other fees and premiums
received by the Agent hereunder or in respect of Revolving Loans shall be shared
by the Banks pro rata in accordance with their respective Commitment
Percentages. (ii) All payments received by the Agent pursuant to Section 10.7 of
this Agreement shall be applied by the Agent to reimburse itself, SSB or FNBB as
the case may be, on account of the Obligation, tax, charge or expense in respect
of which such payment is made.
8.6 Action by Agent.
(i) The obligations of the Agent hereunder are only those
expressly set forth herein. The Agent shall have no duty to exercise any right
or power or remedy hereunder, under any other Loan Document, or under any other
document or instrument executed and delivered in connection with or as
contemplated by this Agreement or to take any affirmative action hereunder or
thereunder.
(ii) The Agent shall keep records of the Revolving Loans and
payments hereunder, and shall give and receive notices and other communications
to be given or received by the Agent hereunder on behalf of the Banks.
(iii) Upon the occurrence of an Event of Default, the Agent
shall exercise, if so directed by the Banks, the option of the Banks pursuant to
Section 6.2 hereof to declare all Obligations immediately due and payable and
take such action as may be necessary or desirable to collect the Obligations and
enforce the rights and remedies of the Agent or the Banks with respect to any
collateral or otherwise.
(iv) Whether or not an Event of Default shall have occurred,
the Agent may from time to time exercise the rights of the Agent and Banks
hereunder, under the other Loan Documents, or under the other documents or
instruments executed or delivered in connection with or as contemplated by this
Agreement as it reasonably may deem necessary or desirable to protect any
collateral and the interests of the Agent and the Banks.
8.7 Consultation with Experts. The Agent shall be entitled to retain
and consult with legal counsel, independent public accountants and other experts
selected by it and shall not be liable to the Banks for any action taken,
omitted to be taken or suffered in good faith by it in accordance with the
advice of such counsel, accountants or experts. The Agent may employ agents and
attorneys-in-fact and shall not be liable to the Banks for the default or
misconduct of any such agents or attorneys.
8.8 Liability of Agent. The Agent shall exercise the same care to
protect the interests of each of SSB and FNBB as it does to protect its own
interests, so that so long as the Agent exercises such care it shall not be
under any liability to any of the Banks,
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except for the Agent's gross negligence or willful misconduct with respect to
anything it may do or refrain from doing. Subject to the immediately preceding
sentence, neither the Agent nor any of its directors, officers, agents or
employees shall be liable for any action taken or not taken by it in connection
herewith in its capacity as Agent. Without limiting the generality of the
foregoing, neither the Agent nor any of its directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify: (i) any statement, warranty or representation made in connection with
this Agreement, any other Loan Document, or any borrowing hereunder; (ii) the
performance or observance of any of the covenants or agreements of any Borrower;
(iii) the satisfaction of any condition specified in Sections 4.1 or 4.2 hereof,
except receipt of items required to be delivered to the Agent; or (iv) the
validity, effectiveness, enforceability or genuineness of this Agreement, the
Notes, the other Loan Documents or any other document or instrument executed and
delivered in connection with or as contemplated by this Agreement. The Agent
shall not incur any liability by acting in reliance upon any notice, consent,
certificate, statement or other writing (which may be a bank wire, telex or
similar writing) believed by it to be genuine or to be signed by the proper
party or parties.
8.9 Indemnification. Each Bank agrees to indemnify the Agent (to the
extent the Agent is not reimbursed by any Borrower), ratably in accordance with
its Commitment Percentage, from and against any cost, expense (including
attorneys' fees and disbursements), claim, demand, action, loss or liability
which the Agent may suffer or incur in connection with this Agreement or any
other Loan Document, or any action taken or omitted by the Agent hereunder or
thereunder, or the Agent's relationship with the Borrowers hereunder, including,
without limitation, the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of its powers
and duties hereunder and of taking or refraining from taking any action
hereunder. No payment by any Bank under this Section shall in any way relieve
any Borrower of its obligations under this Agreement with respect to the amounts
so paid by any Bank, and the Banks shall be subrogated to the rights of the
Agent, if any, in respect thereto.
8.10 Independent Credit Decision. Each of the Banks represents and
warrants to the Agent that it has, independently and without reliance upon the
Agent or the other Banks and based on the financial statements referred to in
Section 3.7 and such other documents and information as it has deemed
appropriate, made its own independent credit analysis and decision to enter into
this Agreement. Each of the Banks acknowledges that it has not relied upon any
representation by the Agent and that the Agent shall not be responsible for any
statements in or omissions from any documents or information concerning the
Borrowers, this Agreement, the Notes, the other Loan Documents or any other
document or instrument executed and delivered in connection with or as
contemplated by this Agreement. Each of the Banks acknowledges that it will,
independently and without reliance upon the Agent or the other Banks 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.
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8.11 Successor Agent. SSB, or any successor Agent, may resign as Agent
at any time by giving written notice thereof to the Banks, and Courier on behalf
of the Borrowers. Upon any such resignation, the Banks shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Banks, and shall have accepted such appointment, within thirty (30) days
after the retiring Agent's giving of notice of resignation, then the retiring
Agent may, on behalf of the Banks, appoint a successor Agent, which shall be a
commercial bank (or Affiliate thereof) or savings and loan association organized
under the laws of the United States of America or any State thereof or under the
laws of another country which is doing business in the United States of America
or any State thereof and having a combined capital, surplus and undivided
profits of at least $100,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent, and the retiring Agent shall be discharged from all
further duties and obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this Section 8
shall inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
SECTION 9. COURIER AS AGENT FOR BORROWERS.
Each Borrower (other than Courier) hereby appoints Courier as its agent
with respect to the receiving and giving of any notices, requests, instructions,
reports, schedules, revisions, financial statements or any other written or oral
communications hereunder. The Agent and each Bank is hereby entitled to rely on
any communications given or transmitted by Courier as if such communication were
given or transmitted by each and every Borrower; provided, however, that any
communication given or transmitted by any Borrower other than Courier shall be
binding with respect to such Borrower. Any communication given or transmitted by
the Agent or any Bank to Courier shall be deemed given and transmitted to each
and every Borrower.
SECTION 10. MISCELLANEOUS.
10.1 Written Notices. Any notices, expressly required by this Agreement
to be in writing, to any party hereto shall be deemed to have been given when
delivered by hand, when sent by telex or facsimile transmission, one (1) day
after being delivered to any overnight delivery service freight pre-paid or
three (3) days after deposit in the mails, postage prepaid, and addressed to
such party at its address given at the beginning of this Agreement or at any
other address specified in writing. Written notices to the Borrowers shall be
sent to the attention of Xxxxxx X. Story, Jr., Senior Vice President and Chief
Financial Officer, or to such other officer as may be designated by the
Borrowers, with a copy to Xxxxxxx, Procter & Xxxx XXX, Xxxxxxxx Xxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000,
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Attention: X. Xxxxxx Lovely, Jr. P.C.; and written notices to the Agent and SSB
shall be sent to the attention of such officer as may be designated by the Agent
and SSB, with a copy to Goulston & Storrs, 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000-0000, Attention: Xxxxxx X. Xxxxxx, Esq., and written notices
to FNBB shall be sent to the attention of such officer as may be designated by
FNBB, with a copy to Goulston & Storrs, 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000-0000, Attention: Xxxxxx X. Xxxxxx, Esq. Any notice, unless
otherwise specified, may be given orally or in writing.
10.2 Term of Agreement. This Agreement shall continue in force and
effect so long as the Revolving Credit Commitment, any portion of the Loans or
any Obligation of any Borrower for any interest, fee, charge or expense shall be
outstanding.
10.3 No Waivers. No failure or delay by the Agent or any Bank in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided are cumulative and not exclusive of any
rights or remedies otherwise provided by law.
10.4 Further Assurances. Each Borrower shall do, make, execute and
deliver all such additional and further acts, things, assurances, and
instruments as the Agent or any Bank may reasonably require more completely to
vest in and assure to the Agent and the Banks its rights hereunder and under the
other Loan Documents, and to carry into effect the provisions and intent of this
Agreement and the other Loan Documents.
10.5 Governing Law. This Agreement and the other Loan Documents shall
be deemed to be contracts made under seal and shall be construed in accordance
with and governed by the laws of the Commonwealth of Massachusetts (without
regard to conflicts of laws rules). Any legal action or proceeding arising out
of or relating to this Agreement or any Obligation may be instituted in the
courts of the Commonwealth of Massachusetts or of the United States of America
for the District of Massachusetts, and the Borrowers hereby irrevocably submit
to the jurisdiction of each such court in any such action or proceeding;
provided, however, that the foregoing shall not limit the Agent's or any Bank's
rights to bring any legal action or proceeding in any other appropriate
jurisdiction.
10.6 Payments in Immediately Available Funds. All payments required of
the Borrowers hereunder or under the Notes shall be made in lawful money of the
United States of America in federal or other funds immediately available to the
recipient thereof at the prescribed place of payment.
10.7 Expenses, Taxes and Indemnification.
(a) The Borrowers shall pay all taxes (other than taxes on the
income of the Banks), charges and expenses of every kind or description,
including, without limitation, (i) attorneys' fees and expenses, reasonably
incurred or expended by the Agent
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or the Banks in connection with or in any way related to the Agent's or the
Banks' relationship with the Borrowers, whether hereunder or otherwise,
including, without limitation, those incurred or expended in connection with the
preparation, execution, delivery, interpretation or amendment of this Agreement,
the Notes, the other Loan Documents and any related agreement, instrument or
document, the making of the Loans, and the protection or enforcement of the
Agent's or the Banks' rights hereunder and (ii) fees and expenses reasonably
incurred, expended or charged by the Agent or the Banks in connection with any
examination of the business, assets or properties of the Borrowers, conducted
after and during the continuance of an Event of Default, whether or not
conducted by employees of the Agents or either Bank. The Borrowers authorize the
Agent and the Banks to charge the Loan Account or any deposit account which the
Borrowers may maintain with the Agent or any Bank for any of the foregoing;
provided that prior to an Event of Default only principal and interest shall be
charged against the deposit accounts of the Borrowers with the Agent or any
Bank.
(b) The Borrowers shall, jointly and severally, absolutely and
unconditionally indemnify and hold the Agent and each Bank harmless against any
and all claims, demands, suits, actions, causes of action, damages, losses,
settlement payments, obligations, costs, expenses and all other liabilities
whatsoever which shall at any time or times be incurred or sustained by the
Agent or either Bank or by any of their respective shareholders, directors,
officers, employees, subsidiaries, affiliates or agents (except any of the
foregoing incurred or sustained as a result of the gross negligence or willful
misconduct of the Agent or such Bank) on account of or in relation to any of the
arrangements or transactions contemplated by, associated with or ancillary to
either this Agreement, or any of the other documents executed or delivered in
connection herewith (including, without limitation, those arising as a result of
a breach by the Borrowers of any Environmental Laws, whether or not disclosed in
Exhibit B attached hereto), whether or not all or any of the transactions
contemplated by, associated with or ancillary to this Agreement, or any of such
documents, are ultimately consummated.
10.8 Amendments, Waivers, Etc. This Agreement, the other Loan Documents
and any provision hereof or thereof may be waived, discharged or terminated only
by an instrument in writing signed by the Agent and each of the Banks and may be
amended only by an instrument in writing signed by the Borrowers and the Agent
and each of the Banks.
10.9 Binding Effect of Agreement. This Agreement shall be binding upon
and inure to the benefit of the Borrowers, the Agent, the Banks and their
respective successors and assigns. The Banks may, in accordance with the
provisions of Section 10.10 hereof, sell, assign or otherwise transfer all or
any portion of their respective right, title and interest in, and their
respective Obligations under, this Agreement and the Loans made and to be made
hereunder, or grant participations in their respective right, title and interest
herein and therein. No Borrower may assign or transfer any of its rights or
obligations hereunder.
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10.10 Assignment and Participation.
(i) Assignments by the Banks. From and after the date hereof,
any Bank may at any time assign all, or a proportionate part of all, of its
rights, interests and duties with respect to its Revolving Credit Commitment and
its Note to one or more banks or other financial institutions (each, an
"Assignee") on such terms, as between such Bank and each of its Assignees, as
such Bank may think fit, and such Assignee shall assume such rights, interests
and duties pursuant to an instrument executed by such Assignee and such Bank,
and for this purpose such Bank may make available to each of its potential
Assignees such information relating to the Borrowers, this Agreement and the
transactions contemplated hereby as such Bank may think necessary or desirable,
which information shall be held by each potential Assignee strictly in
confidence; provided, however, that (a) prior to assigning any interest to any
Assignee hereunder, (1) such Bank shall notify the Agent and the Borrowers in
writing identifying the proposed Assignee and stating the aggregate principal
amount of the proposed interest to be assigned, and (2) receive the prior
written consent of the Agent and the Borrowers, which consent may not be
unreasonably withheld, and (b) no Bank will assign to any Assignee less than an
aggregate amount equal to $5,000,000 of such Bank's Revolving Credit Commitment
and Loans and interest in its Note or, if less, the remaining amount of such
Bank's Revolving Credit Commitment. It is understood and agreed that the proviso
contained in the immediately preceding sentence shall not be applicable in the
case of, and this paragraph (i) shall not restrict, (a) an assignment or other
transfer by such Bank to an Affiliate of such Bank or to any other Bank or (b) a
collateral assignment or other similar transfer to any of the twelve Federal
Reserve Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C.
Section 341. Upon execution and delivery of such an instrument and payment by
such Assignee to such Bank of an amount equal to the purchase price agreed
between such Bank and such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights, interests and duties of a Bank with a
Revolving Credit Commitment and a Revolving Loan as set forth in such instrument
of assumption, and such assigning Bank shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action by any
party shall be required. Upon the consummation of any assignment pursuant to
this paragraph (i), such assigning Bank and the Borrowers shall make appropriate
arrangements so that, if required, a new Note is issued to the Assignee.
(ii) Participations by the Banks. From and after the date
hereof, any Bank shall be at liberty to offer participations in its Revolving
Credit Commitment and its Note to one or more banks or other financial
institutions (each, a "Participant") on such terms as such Bank may think fit,
provided that each participation must be for an amount equal to at least
$5,000,000 of such Bank's Revolving Credit Commitment and Loans. For this
purpose such Bank may make available to each of its potential Participants such
information relating to the Borrowers, this Agreement and the transactions
contemplated hereby as such Bank may think necessary or desirable, which
information shall be held
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by each potential Participant strictly in confidence. It is agreed that such
Bank offering such participation shall retain the sole right to consent to
amendments to, or waivers of, the provisions of this Agreement and its Note and
the sole right and responsibility to enforce the obligations of the Borrowers
hereunder and under the Notes; provided that such Bank may agree with each of
its Participants that such Bank will not agree, without the consent of the
Participant, to any amendment or waiver of any provision of this Agreement which
would increase or otherwise change such Revolving Credit Commitment or reduce
the principal of or rate of interest on the Loans subject to such participation,
or postpone the date fixed for any payment of principal or of interest on any
Loans.
(iii) No Assignee, Participant or other transferee of any
Bank's rights shall be entitled to receive any greater payment under Sections
2.5.6 through 2.5.8, inclusive, hereof than such Bank would have been entitled
to receive with respect to the rights transferred, unless such transfer is made
with the Borrowers' prior written consent or at a time when the circumstances
giving rise to such greater payment did not exist.
(iv) Assignments require a fee payable by the transferor Bank
or its transferee to the Agent, solely for the account of the Agent, of $1,500.
10.11 Computation of Interest and Fees. Interest, fees and charges
shall be computed daily on the basis of a year of 360 days and paid for the
actual number of days for which due. If the due date for any payment of
principal is extended by operation of law, interest shall be payable for such
extended time. Except as otherwise expressly provided in this Agreement, if any
payment required by this Agreement becomes due on a day on which banks in
Boston, Massachusetts are required or permitted by law or an appropriate
authority to remain closed, such payment may be made on the next succeeding day
on which such banks are open, and such extension shall be included in computing
interest in connection with such payment.
10.12 Entire Agreement. This Agreement (including the exhibits hereto)
and the other Loan Documents set forth the entire agreement and understanding of
the parties hereto in respect of the subject matter contained herein, and
supersedes all prior agreements, promises, covenants, arrangements,
communications, representations, warranties, whether oral or written, by any
officer, employee or representative of any party hereto.
10.13 Captions. The captions for the sections of this Agreement are for
ease of reference only and are not an integral part of this Agreement.
10.14 Counterparts. This Agreement may be signed in any number of
counterparts with the same effect as if the signatures hereto and thereto were
upon the same instrument.
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10.15 Severability. The provisions of this Agreement are severable, and
if any of these provisions shall be held by any court of competent jurisdiction
to be unenforceable, such holdings shall not affect or impair any other
provision hereof.
10.16 Judgment Currency. If for the purposes of obtaining a judgment in
any court or obtaining an order enforcing a judgment it is necessary to convert
any amount due from the Borrowers hereunder or under the Notes in the currency
expressed to be payable herein or under the Notes (the "specified currency")
into another currency, then the conversion shall be made at the Agent's spot
rate of exchange for buying the specified currency with such other currency, in
accordance with normal banking procedures, prevailing at the Agent's close of
business on the business day next preceding the day on which the judgment is
given or the order is made. In the event that there is a difference between the
rate of exchange on the basis of which the amount of such judgment or order is
determined and the rate of exchange prevailing on the date of payment, the
Borrowers shall pay such additional amount as may be necessary to ensure that
the amount paid is the amount of such other currency which permits the Agent to
purchase the amount of the specified currency due when such judgment or order is
issued at the Agent's spot rate of exchange for buying the specified currency
with such other currency, in accordance with normal banking procedures,
prevailing at the Agent's opening of business on the date of payment.
10.17 WAIVER OF JURY TRIAL. THE BORROWERS HEREBY IRREVOCABLY WAIVE
TRIAL BY JURY IN ANY JURISDICTION AND IN ANY COURT WITH RESPECT TO, IN
CONNECTION WITH, OR ARISING OUT OF THIS AGREEMENT, THE OBLIGATIONS, OR ANY
INSTRUMENT OR DOCUMENT DELIVERED PURSUANT HERETO OR THERETO, OR ANY CLAIM OR
DISPUTE HOWSOEVER ARISING, BETWEEN ANY OF THE BORROWERS AND THE AGENT AND/OR THE
BANKS. THIS WAIVER OF JURY TRIAL SHALL BE EFFECTIVE FOR EACH AND EVERY DOCUMENT
EXECUTED BY THE BORROWERS, THE AGENT AND/OR THE BANKS AND DELIVERED TO THE
AGENT, THE BANKS OR THE BORROWERS, AS THE CASE MAY BE, WHETHER OR NOT SUCH
DOCUMENT SHALL CONTAIN A WAIVER OF JURY TRIAL. THE BORROWERS FURTHER ACKNOWLEDGE
THAT ALL DOCUMENTS DELIVERED BY THE AGENT, THE BANKS OR THE BORROWERS ARE
SUBJECT TO THIS WAIVER OF JURY TRIAL AS TO ANY ACTION THAT MAY BE BROUGHT AS TO
ANY OF SUCH DOCUMENTS, INSTRUMENTS OR LETTERS OR THE LIKE. THE BORROWERS FURTHER
CONFIRM THAT THE FOREGOING WAIVERS ARE INFORMED AND FREELY MADE.
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WITNESS the execution hereof under seal on the day and year first above
written.
The Borrowers:
COURIER CORPORATION
By: /s/ Xxxxxx X. Story, Jr.
---------------------------------------
Title: Sr. VP and CFO
COURIER CITIZEN COMPANY
By: /s/ Xxxxxx X. Story, Jr.
---------------------------------------
Title: Sr. VP and CFO
COURIER COMPANIES, INC.
By: /s/ Xxxxxx X. Story, Jr.
---------------------------------------
Title: Treasurer
COURIER DELAWARE HOLDING CORPORATION
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------------
Title: Vice President, Asst. Secretary
COURIER FOREIGN SALES CORPORATION LIMITED
By: /s/ Xxxxxx X. Story, Jr.
---------------------------------------
Title: President
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COURIER INVESTMENT CORPORATION
By: /s/ Xxxxxx X. Story, Jr.
---------------------------------------
Title: Treasurer
COURIER KENDALLVILLE, INC.
By: /s/ Xxxxxx X. Story, Jr.
---------------------------------------
Title: Treasurer
COURIER PROPERTIES, INC.
By: /s/ Xxxxxx X. Story, Jr.
---------------------------------------
Title: Treasurer
COURIER STOUGHTON, INC.
By: /s/ Xxxxxx X. Story, Jr.
---------------------------------------
Title: Treasurer
COURIER WESTFORD, INC.
By: /s/ Xxxxxx X. Story, Jr.
---------------------------------------
Title: Treasurer
NATIONAL PUBLISHING COMPANY
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------------
Title: Treasurer
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COURIER NEW MEDIA, INC.
By: /s/ Xxxxxx X. Story, Jr.
---------------------------------------
Title: Treasurer
The Banks:
STATE STREET BANK AND TRUST COMPANY
By: /s/ C. Xxxxxxxx X. Xxxxx
---------------------------------------
Title: Loan Officer
THE FIRST NATIONAL BANK OF BOSTON
By: /s/ Xxxxxxx X. X'Xxxxx
---------------------------------------
Title: Managing Director
The Agent:
STATE STREET BANK AND TRUST COMPANY
By: /s/ C. Xxxxxxxx X. Xxxxx
---------------------------------------
Title: Loan Officer
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EXHIBIT A
Revolving Credit Note
$10,000,000 Boston, Massachusetts
March __, 1997
FOR VALUE RECEIVED, the undersigned (hereinafter, together with their
respective successors in title and assigns, collectively called the
"Borrowers"), by this promissory note (hereinafter, called "this Note"),
absolutely and unconditionally promise to pay to the order of
_______________________, _________________________ (hereinafter, together with
its successors in title and assigns, called the "Bank"), the principal sum of
TEN MILLION DOLLARS ($10,000,000), or so much thereof as shall have been
advanced by the Bank to the Borrowers by way of revolving loans under the Credit
Agreement (as hereinafter defined) and shall remain outstanding, such payment to
be made as hereinafter provided, and to pay interest on the principal sum
outstanding hereunder from time to time from the date hereof until the said
principal sum or the unpaid portion thereof shall have become due and payable as
hereinafter provided.
The entire unpaid principal (not at the time overdue) of this Note
shall bear interest at the rate or rates from time to time in effect under the
Credit Agreement. Accrued interest on the unpaid principal under this Note shall
be payable on the dates specified in the Credit Agreement.
On February 15, 2000, the date of the final maturity of this Note,
there shall become absolutely due and payable by the Borrowers hereunder, and
the Borrowers hereby jointly and severally promise to pay to the holder hereof,
the balance (if any) of the principal hereof then remaining unpaid, all of the
unpaid interest accrued hereon and all (if any) other amounts payable on or in
respect of this Note or the indebtedness evidenced hereby.
Each overdue amount (whether of principal, interest or otherwise)
payable on or in respect of this Note or the indebtedness evidenced hereby shall
(to the extent permitted by applicable law) bear interest at the rates and on
the terms provided by the Credit Agreement. The unpaid interest accrued on each
overdue amount in accordance with the foregoing terms of this paragraph shall
become and be absolutely due and payable by the Borrowers to the holder hereof
on demand by the holder of this Note. Interest on each overdue amount will
continue to accrue as provided by the foregoing terms of this paragraph, and
will (to the extent permitted by applicable law) be compounded monthly until the
obligations of the Borrowers in respect of the payment of such overdue amount
shall be discharged (whether before or after judgment).
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Each payment of principal, interest or other sum payable on or in
respect of this Note or the indebtedness evidenced hereby shall be made by the
Borrowers directly to the Agent in U.S. Dollars, at the Agent's Head Office (as
hereinafter defined), on the due date of such payment, and in immediately
available and freely transferable funds. All payments on or in respect of this
Note or the indebtedness evidenced hereby shall be made without set-off or
counterclaim and free and clear of and without any deductions, withholdings,
restrictions or conditions of any nature.
This Note is made and delivered by the Borrowers to the Bank pursuant
to a Revolving Credit Agreement, dated as of March __, 1997, among the
Borrowers, the Banks and the Agent (hereinafter, as originally executed, or, if
varied or supplemented or amended and restated, called the "Credit Agreement").
This Note evidences the joint and several obligations of the Borrowers (a) to
repay the principal amount of each Revolving Loan (as defined in the Credit
Agreement) made by the Bank to the Borrowers pursuant to the Credit Agreement;
(b) to pay interest, as herein and therein provided, on the principal amount
hereof remaining unpaid from time to time; and (c) to pay other amounts which
may become due and payable hereunder as herein provided. Reference is hereby
made to the Credit Agreement (including the Exhibits annexed thereto) for a
complete statement of the terms thereof.
No reference herein to the Credit Agreement or to any provisions
thereof shall impair the obligations of the Borrowers, which are absolute,
unconditional and irrevocable, to pay the principal of and the interest on this
Note and to pay all (if any) other amounts which may become due and payable on
or in respect of this Note or the indebtedness evidenced hereby, strictly in
accordance with the terms and the tenor of this Note.
For all purposes of this Note, the following terms shall have the
respective meanings set forth below:
(a) "Agent" means State Street Bank and Trust Company, acting
in its capacity as Agent for the Banks under the Credit Agreement.
(b) "Agent's Head Office" means the head office of State
Street Bank and Trust Company located at 000 Xxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000.
(c) "Banks" shall have the meaning ascribed to such term in
the Credit Agreement.
(d) "holder" means the Bank in possession of this Note or any
other Person who is at the time the lawful holder in possession of this
Note.
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The Borrowers will have the right to prepay the unpaid principal of
this Note in full or in part upon the terms contained in the Credit Agreement.
The Borrowers will have an obligation to prepay principal of this Note upon the
terms contained in the Credit Agreement. Any partial payment of the indebtedness
evidenced by this Note shall be applied in accordance with the terms of the
Credit Agreement.
Pursuant to, and upon the terms contained in, Section 6 of the Credit
Agreement, the entire unpaid principal of this Note, all of the interest accrued
on the unpaid principal of this Note and all (if any) other amounts payable on
or in respect of this Note or the indebtedness evidenced hereby may be declared
to be immediately due and payable, whereupon the entire unpaid principal of this
Note, all of the interest accrued on the unpaid principal of this Note and all
(if any) other amounts payable on or in respect of this Note or the indebtedness
evidenced hereby shall (if not already due and payable) forthwith become and be
due and payable to the holder of this Note without presentment, demand, protest
or any other formalities of any kind, all of which are hereby expressly and
irrevocably waived by the Borrowers.
All computations of interest payable as provided in this Note shall be
made by the Agent on the basis of the actual number of days elapsed divided by
360. The Prime Rate (as defined in the Credit Agreement) in effect from time to
time shall be determined in accordance with the terms of the Credit Agreement.
Should all or any part of the indebtedness represented by this Note be
collected by action at law, or in bankruptcy, insolvency, receivership or other
court proceedings, or should this Note be placed in the hands of attorneys for
collection after default, the Borrowers hereby jointly and severally promise to
pay to the holder of this Note, upon demand by the holder hereof at any time, in
addition to principal, interest and all (if any) other amounts payable on or in
respect of this Note or the indebtedness evidenced hereby, all court costs and
attorneys' fees and all other collection charges and expenses reasonably
incurred or sustained by the holder of this Note.
The Borrowers hereby irrevocably waive notice of acceptance,
presentment, notice of nonpayment, protest, notice of protest, suit and all
other conditions precedent in connection with the delivery, acceptance,
collection and/or enforcement of this Note. The Borrowers hereby absolutely and
irrevocably consent and submit to the jurisdiction of the Courts of the
Commonwealth of Massachusetts and of any Federal Court located in the said
Commonwealth in connection with any actions or proceedings brought against the
Borrowers by the holder hereof arising out of or relating to this Note.
This Note is intended to take effect as a sealed instrument. This Note
and the obligations of the Borrowers hereunder shall be governed by and
interpreted and determined in accordance with the laws of the Commonwealth of
Massachusetts.
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Each of the Borrowers shall be jointly and severally liable for the
full amount owing under this Note.
IN WITNESS WHEREOF, this REVOLVING CREDIT NOTE has been duly executed
by the undersigned on the day and in the year first above written in Boston,
Massachusetts.
The Borrowers:
WITNESS: COURIER CORPORATION
__________________________ By:_____________________________
Title: Title:
WITNESS: COURIER CITIZEN COMPANY
__________________________ By:_____________________________
Title: Title:
WITNESS: COURIER COMPANIES, INC.
__________________________ By:_____________________________
Title: Title:
WITNESS: COURIER DELAWARE HOLDING
CORPORATION
__________________________ By:_____________________________
Title: Title:
WITNESS: COURIER FOREIGN SALES CORPORATION
LIMITED
__________________________ By:_____________________________
Title: Title:
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WITNESS: COURIER INVESTMENT CORPORATION
__________________________ By:_____________________________
Title: Title:
WITNESS: COURIER KENDALLVILLE, INC.
__________________________ By:_____________________________
Title: Title:
WITNESS: COURIER PROPERTIES, INC.
__________________________ By:_____________________________
Title: Title:
WITNESS: COURIER STOUGHTON, INC.
__________________________ By:_____________________________
Title: Title:
WITNESS: COURIER WESTFORD, INC.
__________________________ By:_____________________________
Title: Title:
WITNESS: NATIONAL PUBLISHING COMPANY
__________________________ By:_____________________________
Title: Title:
WITNESS: COURIER NEW MEDIA, INC.
__________________________ By:_____________________________
Title: Title:
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EXHIBIT B
DISCLOSURE STATEMENT
Revolving Credit Agreement Section , and
Information Requested Disclosure
--------------------- ----------
3.1 Organization and Qualification
- Borrower information - Courier Corporation: incorporated and
qualified in Massachusetts
- Subsidiary information - Refer to Exhibit F
3.4 Approvals and Consents - No exceptions
3.5 Title to Properties: Absence of Liens
- Borrower's Obligations under the - Demand loan due State Street Bank and
Loan Documents rank at least paripassu Trust totaling $4,047,000 on September
as to right of repayment with all of 28, 1996
Borrower's other Indebtedness except as
set forth here.
3.6 Compliance - No exceptions
3.7 Financial Statements
- Material adverse changes to financial - No exceptions
statement dated September 28, 1996
3.9 Taxes
- Waivers extending applicable statute - Tax years ending September 1992 and
of limitations 1993 extended through December 31,
1997
3.10 See Disclosure Letter
68
Revolving Credit Agreement Section , and
Information Requested Disclosure
--------------------- ----------
3.13 ERISA
- List of plans 1) Courier Profit Sharing and Savings
Plan
2) Multi-employer pension plans
maintained by the Graphic
Communication International Union.
3) Courier Employee Short-Term
Disability Plan
4) Courier Employee Long-Term
Disability Plan
5) Courier Employee Group Life
Insurance Plan
6) Courier Employee Group Health
Insurance Plan
7) Medical/Surgical Health Insurance
Plan for Employees of National
Publishing Co.
8) Dental Insurance Plan for Employees
of Courier Stoughton
9) Courier Travel Accident Insurance
Plan
-Reportable events - Until December 31, 1988, the
Borrower and its Affiliates
maintained four single-employer
defined benefit pension plans.
Effective December 31, 1988,
certain assets and liabilities of
one of the plans (the "Courier
Plan") were transferred to another
of the plans (the "Transferee
Plan"); the two remaining plans
were merged into the Transferee
Plan; and the Courier Plan and the
Transferee Plan were terminated in
standard terminations within the
meaning of Section 4041(b) of
ERISA. The Internal Revenue Service
has issued favorable determination
letters as to both of the plan
terminations. The Pension Benefit
Guaranty Corporation has determined
the assets of the plans to be
sufficient to satisfy all benefit
liabilities, and the assets of both
terminated plans have been fully
distributed to participants and
beneficiaries.
69
Revolving Credit Agreement Section , and
Information Requested Disclosure
--------------------- ----------
3.15 See Disclosure Letter
3.17 Contracts with Affiliates, Etc. - Refer to Borrower's Proxy
- Agreements or transactions not in the Statement dated December 6, 1996
ordinary course of business with
Affiliates
- No indebtedness owing by any
Affiliate to the Borrower or any
Subsidiary
- No exceptions
5.6 Guaranties
- No guaranties - No exceptions
5.7 Restrictions on Liens 1) Commonwealth of Mass. Industrial
- Listed encumbrances Revenue Bond with Courier
Corporation payable semi-annually
through December 1997. Balance at
September 30, 1996 was $200,000.
(Secured with various printing
equipment)
2) MetLife Capital Credit
Corporation's lien on one Xxxxxxxx
Xxxx 16 Web Press in accordance
with purchase contract dated
October 15, 1991
3) Installment Sale Agreement between
PIDC Financing Corporation ("PIDC")
and Courier Properties, Inc. dated
April 24, 1996 with respect to a
portion of the premises located at
00000 Xxxxxxxxx Xxxxxxxxx,
Xxxxxxxxxxxx XX, the indebtedness
under which totalled $1,200,000.
PIDC retains title to the land and
a portion of the buildings until
final payment, which is anticipated
to be May 1, 2011.
70
EXHIBIT C
EXISTING INDEBTEDNESS
Refer to Courier Corporation's 12/28/96 Form 10-Q
and to Exhibit C-1
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EXHIBIT C-1
Long term debt of the Company and its consolidated subsidiaries consisted of the
following:
Balance
@ 12/28/96
----------
Bank of Boston $ 3,000,000
State Street Bank & Trust Co. 5,579,000
Obligation under industrial revenue bond arrangement
at 65% of prime rate (8.25% at December 28, 1996),
payable in semi-annual installments of $100,000
through December 1997 200,000
Obligation under industrial development bond
arrangement at 3%, payable in monthly installments
through May 2011 1,173,000
9.5% secured promissory note, payable in monthly
installments through October 2001 1,158,000
-----------
$11,110,000
Less - Current maturities 466,000
-----------
Total $10,644,000
===========
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EXHIBIT D
[Form of Certificate of Chief Financial Officer of Courier]
CERTIFICATE OF CHIEF FINANCIAL OFFICER OF COURIER
(Pursuant to Section 5.1(v) of the Revolving Credit Agreement dated as
of March __, 1997.)
The undersigned chief financial officer of Courier Corporation
("Courier") HEREBY CERTIFIES THAT:
This Certificate is furnished pursuant to Section 5.1(v) of the
Revolving Credit Agreement, dated as of March __, 1997, among Courier and the
other Borrowers named therein (collectively, the "Borrowers"), The First
National Bank of Boston, and State Street Bank and Trust Company, individually
and as Agent (the "Agreement"). Unless otherwise defined herein, the terms used
in this Certificate and Schedule 1 annexed hereto have the meanings described in
the Agreement.
As required by Section 5.1(i) or (ii) of the Agreement, Consolidated
financial statements of the Borrowers and their respective Subsidiaries for the
(year) (quarter) ended __________, 19__ (the "Financial Statements") prepared in
accordance with GAAP (subject, in the case of quarterly statements, to normal
year-end audit adjustments) accompany this Certificate. The Financial Statements
present fairly the Consolidated financial position of the Borrowers and their
respective Subsidiaries as at the date thereof and the Consolidated results of
operations of the Borrowers and their respective Subsidiaries for the period
covered thereby.
As required by Section 5.1(i) or (ii) of the Agreement, the Report for
the (year) (quarter) ended ___________, 19__ accompanies this Certificate. The
Report reasonably reflects the results of operations of each Borrower and each
of its Subsidiaries (subject, in the case of quarterly statements, to normal
year-end audit adjustments) on a consistent basis and, in the aggregate, agrees
with the Consolidated Financial Statements for the same period.
Schedule 1 attached hereto sets forth financial data and computations
evidencing the Borrowers' compliance with the covenants of the Agreement set
forth in Sections 5.24 through 5.26, inclusive, and 5.29, all of which data and
computations, to the best of the knowledge and belief of the chief financial
officer of Courier (the "Chief Financial Officer") executing and delivering this
Certificate, are true, complete and correct.
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The activities of the Borrowers during the period covered by the
Financial Statements have been reviewed by the Chief Financial Officer of
Courier and/or by employees or agents under his or her supervision. Based on
such review, to the best knowledge and belief of the Chief Financial Officer,
during the period covered by the Financial Statements, and as of the date of
this Certificate, (a) the Borrowers have, or have caused to have, kept,
observed, performed and fulfilled each and every covenant and condition of the
Agreement and the other Loan Documents, and (b) no Event of Default and no event
which with notice or the passage of time, or both, would become an Event of
Default, has occurred or is continuing.(1)
Witness my hand this _________ day of ______________, 19___.
COURIER CORPORATION
By:__________________________________
Title: Chief Financial Officer
________
(1) If an Event of Default or an event which with notice or the lapse of
time, or both, would become an Event of Default, has occurred or is
occurring, this paragraph is to be modified by an appropriate statement
as to the nature thereof, the period of existence thereof, and what
action the Borrowers have taken, are taking, or propose to take with
respect thereto.
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Schedule 1 to the Foregoing
Certificate of Chief Financial Officer of Courier
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EXHIBIT E
March __, 0000
Xxxxx Xxxxxx Bank and Trust Company,
Individually and as Agent
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Re: Courier Corporation and Subsidiaries
Gentlemen:
This legal opinion is furnished to you pursuant to Section 4.1.1(v) of the
Revolving Credit Agreement, dated as of March __, 1997 (the "Credit Agreement"),
among Courier Corporation and its Subsidiaries (collectively, the "Borrowers"),
The First National Bank of Boston, and State Street Bank and Trust Company,
individually and as Agent (collectively, the "Banks").
The words and expressions used without definition in this legal opinion which
are defined in the Credit Agreement have the same respective meanings in this
legal opinion as the meanings specified for them in the Credit Agreement, as it
is in effect on the date hereof.
We have acted as counsel to the Borrowers, and have acted in such capacity in
connection with the transactions and arrangements contemplated by the Credit
Agreement and the other Loan Documents.
We have examined executed originals or (as the case may be) executed
counterparts of each of the Loan Documents. We have examined originals or
certified copies of the charter documents (including the by-laws) of each of the
Borrowers and their Subsidiaries. We have also examined such certificates of the
directors and officers of the Borrowers, and such other certificates,
agreements, instruments and documents as we
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76
have deemed necessary or advisable for the purposes of this legal opinion. We
have relied, as to factual matters only, upon such certificates and the
representations and warranties made in such agreements, instruments, and other
documents. We have assumed the genuineness of all signatures (except for the
signatures of those persons signing the Loan Documents on behalf of the
Borrowers), the authenticity of all documents submitted to us as originals and
the conformity to originals of all documents submitted to us as copies. We have
also made such examination of law as in our judgment was necessary and
appropriate for the purposes of this legal opinion.
Based upon and in reliance on the limitations expressed herein, it is my opinion
that:
(1) Each of the Borrowers and their respective Subsidiaries (a) is a
corporation duly organized, validly existing and in corporate good standing
under the laws of its jurisdiction of incorporation, and (b) has adequate
corporate power and authority and full legal right to own or to hold under lease
its properties and to carry on the business in which it is presently engaged and
presently proposes to engage. [Each of the Borrowers and their respective
Subsidiaries is duly qualified as a foreign corporation and is licensed,
admitted, or approved to do business as a foreign corporation in each
jurisdiction wherein the character of the properties, owned or held under lease
by it, or the nature of the business conducted by it, makes such qualification
necessary, except where the failure to be so qualified would not have a material
and adverse effect on the condition (financial or other), properties, business,
or results of operations of the Borrowers and their respective Subsidiaries
taken as a whole.]
(2) Each Borrower has adequate corporate power and authority and full
legal right to enter into each of the Loan Documents which has been executed and
delivered by it, and to perform, observe, and comply with all of its agreements
and obligations under each of such Loan Documents.
(3) The execution and delivery by each Borrower of each of the Loan
Documents which has been executed and delivered by it, the performance by such
Borrower of all of its agreements and obligations under each of such documents,
and the making by such Borrower of all of the borrowings contemplated by the
Credit Agreement, have been duly and properly authorized by all necessary
corporate action on the part of such Borrower, and do not and will not (a)
contravene any provision of the charter or by-laws of such Borrower (each as in
effect on the date hereof), (b) to the best of our knowledge (after due inquiry
of the chief financial officer of Courier), conflict with, or result in a breach
of, the terms, conditions or provisions of, or constitute a default under, or
(except as otherwise contemplated and required or permitted by any of the Loan
Documents) result in the creation of any mortgage, lien, pledge, charge,
security interest, or other encumbrance upon any of the property of such
Borrower under, any material agreement, trust deed, indenture, mortgage, or
other instrument known to us to which such Borrower is a party or by which such
Borrower is bound or affected on the date hereof, (c) violate or contravene any
provision of any law or regulation (including,
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77
without limitation, Regulations G, U, or X of the Board of Governors of the
Federal Reserve System) or any order, ruling, or interpretation thereunder
except where any such violation or contravention would not have a material and
adverse effect on the condition (financial or other), properties, business, or
results of operation of the Borrowers and their respective Subsidiaries taken as
a whole, or, to the best of our knowledge (after due inquiry of the chief
financial officer of Courier), any decree, order, or judgment of any court or
governmental or regulatory authority, bureau, or agency or official (all as in
effect on the date hereof and applicable to such Borrower), (d) to the best of
our knowledge (after due inquiry of the chief financial officer of Courier),
require any waivers, consents, or approvals by any of the creditors or trustees
for creditors of record of such Borrower, or (e) require any consents or
approvals by any shareholders of such Borrower.
(4) No approval, consent, order, authorization, or license by, or
giving of notice to, or taking of any other action with respect to, any
governmental or regulatory authority or agency is required for the execution and
delivery or performance by any Borrower of any of the Loan Documents which have
been executed and delivered by it or for the performance by such Borrower of any
of its agreements or obligations thereunder.
(5) Each of the Loan Documents to which each Borrower was to have
become a party (as contemplated and required by the Credit Agreement) has been
duly and properly executed and delivered by such Borrower.
(6) The agreements and obligations of each Borrower contained in each
of the Loan Documents executed and delivered by it constitute the legal, valid,
and binding obligations of such Borrower, enforceable against such Borrower in
accordance with their respective terms.
(7) To the best of our knowledge (after the review and examination
described in qualification no. 2 below and due inquiry of the chief financial
officer of Courier), and except as disclosed in Exhibit B to the Credit
Agreement, there is no pending or threatened action, suit, proceeding, or
investigation before any court, governmental or regulatory authority, agency,
commission or official, board of arbitration or arbitrator against any Borrower
or any Subsidiary of any Borrower, the outcome of which could reasonably be
expected (a) to materially adversely affect the transactions contemplated by the
Loan Documents, or (b) to materially adversely affect the financial position,
business, properties, or operations of the Borrowers and their respective
Subsidiaries taken as a whole.
Each of the foregoing legal opinions is subject to the following qualifications:
1. (a) the enforceability of any rights and remedies provided in any
Loan Document against any particular party thereto is subject to any applicable
bankruptcy,
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78
reorganization, moratorium, or other similar laws affecting generally the
enforcement of creditors' rights; and
(b) the availability of any equitable remedies for the enforcement of
any provision of any of the Loan Documents may be subject to the discretion of
the court before which any proceeding for the enforcement of any such provision
may be brought.
2. The opinion expressed in paragraph 7 above is based solely on (i)
our review of the Form 10-K of Courier Corporation for the fiscal year ended
September 28, 1996 and (ii) an examination of the dockets of the Massachusetts
Superior Court of Middlesex County and the United States District Court for the
District of Massachusetts all as of the close of business on February __, 1997.
We express no opinion relating to matters as to which notice was filed after the
date on which the aforesaid dockets were examined.
3. Although the Borrowers have ordered the same, they have not yet
received from the Massachusetts State Tax Commissioner certificates attesting to
the tax good standing of the Borrowers in Massachusetts; thus, we are unable at
this time to render any opinion as to the good standing of the Borrowers as
tax-paying corporations in Massachusetts.
We are members of the Bar of The Commonwealth of Massachusetts, and we
therefore express no opinion herein with respect to any law other than the laws
of The Commonwealth of Massachusetts and the United States of America. [Please
assume laws of other jurisdictions are identical to Massachusetts law.] In
addition, we express no opinion as to the need for any consent or approval of,
the giving of notice to, or the registration with, or the taking of any other
action with respect to any governmental authority or agency which may be
required by reason of the business activities of any of the parties to the Loan
Documents other than the Borrowers.
The opinions given herein are as of the date hereof. We assume no
obligation to update or supplement this opinion to reflect any facts or
circumstances which may hereafter come to our attention or changes in laws which
may hereafter occur.
The opinions contained herein are being rendered to each of you in
connection with the execution and delivery by the Borrowers of the Credit
Agreement and the transactions contemplated thereby and may not be relied upon
by any other party or for any other purpose.
Very truly yours,
XXXXXXX, PROCTER & XXXX LLP
-4-
79
EXHIBIT F
LIST OF SUBSIDIARIES
PLACE OF
NAME INCORPORATION ADDRESS JURISDICTIONS
---- ------------- ------- -------------
Courier-Citizen Company Massachusetts 15 Xxxxxxx Ave. MA, PA*
North Xxxxxxxxxx, XX
00000
Courier Companies, Inc. Massachusetts 15 Xxxxxxx Ave. CA, FL, IL, IN
Xxxxx Xxxxxxxxxx, XX XX, XX
00000
Courier Delaware Delaware 0000 Xxxxx Xxxxxx Xx. XX
Holding Corp. Xxxxx 0000
Xxxxxxxxxx, XX
00000
Courier Foreign Sales Xxxxxxx 00 Xxxx Xx. Xxxxxxx
Corporation Ltd. Kingston, Jamaica
Courier Investment Massachusetts 00 Xxxxxxx Xxx. MA
Corporation Xxxxx Xxxxxxxxxx, XX
00000
Courier Indiana 0000 Xxxxxx Xxxxx IN
Kendallville, Inc. Xxxxxxxxxxxx, XX
00000
Courier Properties, Inc. Massachusetts 00 Xxxxxxx Xxx. XX, XX*, NH*, PA*
Xxxxx Xxxxxxxxxx, XX
00000
Courier Stoughton, Inc. Massachusetts 000 Xxxxxx Xxxxxx XX
Xxxxxxxxx, XX
00000
Courier Westford, Inc. Xxxxxxxxxxxxx Xxxxxxxx Xxxxxx XX
Xxxxxxxx, XX
00000
National Publishing Pennsylvania 00000 Xxxxxxxxx Xxxx. XX
Company Xxxxxxxxxxxx, XX
00000
Courier New Media, Inc. Massachusetts 15 Xxxxxxx Ave. MA
North Xxxxxxxxxx, XX
00000
* Not presently qualified to do business. An application for qualification is
being prepared.
80
EXHIBIT G
FORM OF FLASH REPORT
COURIER CORPORATION
CONSOLIDATED SUMMARY OF OPERATIONS
DATE
(000'S OMITTED)
MONTH YEAR TO DATE YEAR
-------------------------- --------------------------- -------------------------------
Actual/ 19xx 19xx
Actual Budget Prior Actual Budget Prior Budget Budget Actual
------ ------ ----- ------ ------ ----- ------ ------ ------
SALES
Manufacturing Sales
Westford $ 0 $ 0 $ 0 $ 0 $ 0 $ 0 $ 0 $ 0 $ 0
Stoughton 0 0 0 0 0 0 0 0 0
Kendallville 0 0 0 0 0 0 0 0 0
Chelmsford 0 0 0 0 0 0 0 0 0
----- ----- ----- ----- ----- ----- ----- ----- -----
Total Manufacturing Sales 0 0 0 0 0 0 0 0 0
Non-Manufacturing Sales 0 0 0 0 0 0 0 0 0
----- ----- ----- ----- ----- ----- ----- ----- -----
BOOK GROUP SALES 0 0 0 0 0 0 0 0 0
NATIONAL 0 0 0 0 0 0 0 0 0
COPYRIGHT MANAGEMENT 0 0 0 0 0 0 0 0 0
Eliminations 0 0 0 0 0 0 0 0 0
----- ----- ----- ----- ----- ----- ----- ----- -----
TOTAL SALES $ 0 $ 0 $ 0 $ 0 $ 0 $ 0 $ 0 $ 0 $ 0
===== ===== ===== ===== ===== ===== ===== ===== =====
PRETAX INCOME
Westford $ 0 $ 0 $ 0 $ 0 $ 0 $ 0 $ 0 $ 0 $ 0
Stoughton 0 0 0 0 0 0 0 0 0
Kendallville 0 0 0 0 0 0 0 0 0
Chelmsford 0 0 0 0 0 0 0 0 0
----- ----- ----- ----- ----- ----- ----- ----- -----
BOOK GROUP 0 0 0 0 0 0 0 0 0
NATIONAL 0 0 0 0 0 0 0 0 0
Copyright Mgmt 0 0 0 0 0 0 0 0 0
Other CNM 0 0 0 0 0 0 0 0 0
----- ----- ----- ----- ----- ----- ----- ----- -----
COURIER NEW MEDIA 0 0 0 0 0 0 0 0 0
NON-RECURRING GAINS/(LOSSES) 0 0 0 0 0 0 0 0 0
----- ----- ----- ----- ----- ----- ----- ----- -----
Pretax Income 0 0 0 0 0 0 0 0 0
Taxes 0 0 0 0 0 0 0 0 0
----- ----- ----- ----- ----- ----- ----- ----- -----
NET INCOME $ 0 $ 0 $ 0 $ 0 $ 0 $ 0 $ 0 $ 0 $ 0
===== ===== ===== ===== ===== ===== ===== ===== =====
EARNINGS/SHARE $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00 $0.00
Return on Assets 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
Wtd. Avg. Shares O/S 0 0 0 0 0 0 0 0 0
