1
EXHIBIT 10.6
LEASE AMENDMENT AGREEMENT
-------------------------
THIS LEASE AMENDMENT AGREEMENT (this "Agreement") is made this 8th day of
May, 1996 by and among CORPORATE PROPERTY ASSOCIATES 8, a Delaware limited
partnership ("Landlord"), with an address c/o W.P. Xxxxx & Co., Inc., 00
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and HIGH VOLTAGE ENGINEERING
CORPORATION, a Massachusetts corporation ("Tenant"), with an address at 000
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxxxxx 00000.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, Landlord and Tenant entered into a Lease Agreement dated as of
November 10, 1988, as amended by a certain Agreement dated as of November 10,
1988 by and among Marine Midland Bank, N.A., Tenant and Landlord (the "Marine
Amendment"), and as further amended by Lease Amendment (the "1991 Amendment")
dated as of April 27, 1991 (collectively, as so amended, the "Lease"). Pursuant
to the Lease, Landlord is leasing to Tenant certain land, together with the
improvements and equipment located thereon and pertaining thereto, located at
Xxxxxx Junction Road in Sterling, Massachusetts, as more particularly described
in Exhibit "A" to the Lease (the "Leased Premises").
WHEREAS, Landlord and Tenant wish to modify the Lease as more
particularly set forth herein.
NOW, THEREFORE, the parties hereto in consideration of the mutual
promises contained herein and intending to be legally bound hereby, covenant and
agree as follows:
1. The recitals set forth above, all exhibits attached hereto, if any,
and the Lease referred to therein, are incorporated herein by reference and all
definitions and document identifications, shall, except as expressly provided to
the contrary herein, have the same meaning in this Agreement as are respectively
ascribed to them in the Lease as if set forth in full in the body of this
Agreement.
2. (a) Exhibit "E" of the Lease (Covenants) as amended by the 1991
Amendment shall be deleted in its entirety and shall be replaced by the
following new Exhibit "E" (Covenants):
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"1. CONSOLIDATED NET WORTH. Tenant shall maintain a Consolidated
Tangible Net Worth at all times as determined for each Fiscal Quarter of not
less than the sum of (i) Tenant's audited Net Worth as of April 27, 1996
determined in accordance with GAAP less $500,000.00; plus (ii) an increase, as
of each Fiscal Year, by an amount equal to 30% of Tenant's Consolidated Net
Income for such Fiscal Year, PROVIDED, HOWEVER, if Consolidated Net Income shall
be a loss, there shall not be deducted from such amount any such loss.
2. FIXED CHARGE COVERAGE. Tenant shall, and shall cause its
Restricted Subsidiaries to, maintain the consolidated ratio as of each Fiscal
Quarter set forth below of (i) Consolidated EBITR of Tenant (determined for the
last four Fiscal Quarters preceding the date of determination) as of the end of
each Fiscal Quarter set forth below to (ii) Consolidated Fixed Charges of Tenant
(determined for the last four Fiscal Quarters preceding the date of
determination) as of the end of such Fiscal Quarter to be of not less than the
ratio set forth opposite such period below:
PERIOD RATIO
------ -----
The first through the fourth Fiscal 0.60:1
Quarter of Fiscal Year 1997
The first through the fourth Fiscal 0.63:1
Quarters of Fiscal Year 1998
The first through the fourth Fiscal 0.72:1
Quarter of Fiscal Year 1999
The first through the fourth Fiscal 0.76:1
Quarters of Fiscal Year 2000
The first through the fourth Fiscal 0.81:1
Quarter of Fiscal Year 2001
The first Fiscal Quarter of Fiscal 0.87:1
Year 2002 and each Fiscal Quarter thereafter
3. SENIOR--FUNDED DEBT. Tenant shall, and shall cause its
Restricted Subsidiaries to, maintain the consolidated ratio as of the end of
each Fiscal Quarter set forth below of (i) Consolidated Senior Funded Debt of
Tenant at the date of determination for such Fiscal Quarter to (ii) Consolidated
EBITDA of Tenant (determined for the last four Fiscal Quarters preceding the
date of determination) of not greater than the ratio set forth opposite such
period below:
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PERIOD RATIO
------ -----
The first and second Fiscal Quarters 7.5:1
of Fiscal Year 1997
The third and fourth Fiscal Quarters 6.5:1
of Fiscal Year 1997
The first and second Fiscal Quarters 6.0:1
of Fiscal Year 1998
The third and fourth Fiscal Quarters 5.8:1
of Fiscal Year 1998
The first Fiscal Quarter of Fiscal Year 5.5:1
1999 and each Fiscal Quarter thereafter
4. TOTAL FUNDED DEBT. Tenant shall, and shall cause its Restricted
Subsidiaries to, maintain the consolidated ratio as of the end of each Fiscal
Quarter set forth below of (i) Consolidated Total Funded Debt of Tenant at the
date of determination for such Fiscal Quarter set forth below to (ii)
Consolidated EBITDA of Tenant (determined for the last four Fiscal Quarters
preceding the date of determination) of not greater than the ratio set forth
opposite such period below:
PERIOD RATIO
------ -----
The first and second Fiscal Quarters 11.5:1
of Fiscal Year 1997
The third and fourth Fiscal Quarters 10.2:1
of Fiscal Year 1997
The first and second Fiscal Quarters 9.5:1
of Fiscal Year 1998
The third and fourth Fiscal Quarters 9.3:1
of Fiscal Year 1998
The first Fiscal Quarter of Fiscal Year 8.8:1"
1999 and each Fiscal Quarter thereafter
(b) Any capitalized terms used in new Exhibit "E" (Covenants) to
the Lease as set forth in subsection 2(a) above and not otherwise defined in the
Lease shall have the meanings ascribed to them in a certain Loan Agreement by
and among Tenant, as Borrower, Datcon Instrument Company, Halmar Robicon Group,
Inc. and HIVEC Holdings, Inc., as Guarantors, Sanwa Business Credit Corporation,
as Agent, and various financial institutions named therein, as Lenders, dated as
of May 9, 1996, a copy of the definitional section of which is attached hereto,
made a part hereof and marked Exhibit "A".
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3. The Lease is further amended to terminate: (a) all references
to Marine Midland Bank, N.A.; and (b) all references to and all of the terms and
conditions of the Marine Amendment which specifically amended the Lease as the
revolving credit facility which was the subject of the Marine Amendment has been
paid in full by Tenant and the Marine Amendment is of no further force or
effect.
4. All attorneys' fees, costs and expenses incurred by Landlord in
connection with this Agreement and the transactions contemplated hereunder shall
be paid by Tenant within three (3) business days of submission of a xxxx
therefor.
5. Except as expressly amended hereby, the Lease remains in full
force and effect in accordance with its terms.
6. This Agreement may be executed in any number of counterparts,
each of which shall be an original, and such counterparts together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first above written.
CORPORATE PROPERTY
ASSOCIATES 8
By: Eighth Xxxxx Corporate
Property, Inc.
General Partner
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
HIGH VOLTAGE ENGINEERING
CORPORATION
By: /s/ Xxxxxx X. XxXxxx, Xx.
------------------------------------
Name: Xxxxxx X. XxXxxx, Xx.
Title: V.P., CFO and Clerk
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EXHIBIT A
(Definitions)
LOAN AGREEMENT
among
HIGH VOLTAGE ENGINEERING CORPORATION,
as Borrower,
DATCON INSTRUMENT COMPANY,
HALMAR ROBICON GROUP, INC.
and
HIVEC HOLDINGS, INC.
as Guarantors,
SANWA BUSINESS CREDIT CORPORATION,
as Agent,
and
THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders
Dated as of
May 9, 1996
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LOAN AGREEMENT
--------------
This LOAN AGREEMENT is dated as of this 9th day of May, 1996, by and
among HIGH VOLTAGE ENGINEERING CORPORATION, a Massachusetts corporation, as
Borrower, DATCON INSTRUMENT COMPANY, a Pennsylvania corporation, HALMAR ROBICON
GROUP, INC., a Pennsylvania corporation, and HIVEC HOLDINGS, INC., a Delaware
corporation, as Guarantors, SANWA BUSINESS CREDIT CORPORATION, as Agent for
Lenders, and the FINANCIAL INSTITUTIONS PARTY HERETO, as Lenders.
W I T N E S S E T H:
--------------------
WHEREAS, in connection with the repayment of certain pre-existing
indebtedness of Borrower and the continued working capital needs of Borrower
subsequent to such repayment, Borrower desires to borrow up to Thirty Million
Dollars ($30,000,000) from Lenders, and Lenders are willing to make certain
loans to Borrower of up to such amount, upon the terms and conditions set forth
herein; and
WHEREAS, Guarantors are wholly-owned subsidiaries of Borrower and will
benefit directly and indirectly from the loans made to Borrower pursuant hereto
and, as such, are willing to guaranty the obligations of Borrower hereunder, all
as set forth herein;
NOW, THEREFORE, in consideration of the terms and conditions contained
herein, and of any loans or extensions of credit heretofore, now or hereafter
made to or for the benefit of Borrower by Agent and Lenders, the parties hereto
hereby agree as follows:
1. DEFINITIONS.
1.1 GENERAL TERMS. When used herein, the following terms shall have
the following meanings:
"ACCOUNT DEBTOR" shall mean any Person who is or may become
obligated on or under an Account.
"ACCOUNTS" shall mean, with respect to any Person, all such
Person's presently existing and hereafter arising or acquired accounts,,
accounts receivable, margin accounts, futures positions, book debts,
instruments, documents, contracts, notes, drafts, acceptances, chattel paper,
and other forms of obligations now or hereafter owned or held by or
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payable to such Person relating in any way to Inventory or arising from the sale
of Inventory or the rendering of services by such Person or howsoever otherwise
arising, including the right to payment of any interest or finance charges with
respect thereto, together with all merchandise represented by any of the
Accounts; all such merchandise that may be reclaimed or repossessed or returned
to such Person; all of such Person's rights as an unpaid vendor, including,
without limitation, stoppage in transit, reclamation, replevin, and
sequestration; all pledged assets and all letters of credit, guaranty claims,
Liens held by or granted to such Person to secure payment of any Accounts; all
proceeds and products of all of the foregoing described properties and interests
in properties; and all proceeds of insurance with respect thereto, including,
without limitation, the proceeds of any applicable casualty or credit insurance
or fidelity bond, whether payable in cash or in kind; and all customer lists,
ledgers, books of account, records, computer programs, computer disks or tape
files (including, without limitation, all microfilm), computer printouts,
computer runs, and other computer prepared information relating to any of the
foregoing.
"ACCOUNTS RECEIVABLE AGING" shall have the meaning ascribed
thereto in SUBSECTION 3.1.
"ADJUSTED EBITDA" shall mean, for any applicable fiscal period,
(1) determined for Borrower and its Restricted Subsidiaries on a consolidated
basis or (2) if the context so requires, determined for Borrower or any Domestic
Operating Subsidiary, individually: Adjusted Net Income, plus (but only to the
extent deducted in determining such Adjusted Net Income) (a) income and
franchise taxes paid or accrued with respect to such period, (b) Interest
Charges during such period and (c) amortization and depreciation deducted in
determining such Adjusted Net Income for such period, all as determined in
accordance with GAAP consistently applied. Unless otherwise expressly provided
or the context requires otherwise, all references herein to Adjusted EBITDA
shall refer to Adjusted EBITDA determined for Borrower and its Restricted
Subsidiaries on a consolidated basis.
"ADJUSTED NET INCOME" or "ADJUSTED NET LOSSES" shall mean, for any
applicable fiscal period, determined on a consolidated basis for Borrower and
its Restricted Subsidiaries, consolidated Net Income (or Net Losses) for such
period, but specifically excluding therefrom (without duplication of any
exclusions in determining Net Income or Net Losses) on a tax adjusted basis (i)
net income of any Restricted Subsidiary accrued prior to the date it became a
Restricted Subsidiary, (ii) net income of any Person (other than a Restricted
Subsidiary), all or substantially all of the
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assets of which have been acquired in any manner by Borrower or any Restricted
Subsidiary, accrued prior to the date of such acquisition, (iii) net income of
any Person (other than a Restricted Subsidiary) with which Borrower or any
Restricted Subsidiary shall have consolidated or which shall have merged into or
with Borrower or any Restricted Subsidiary, accrued prior to the date of such
consolidation or merger, (iv) net income of any Restricted Subsidiary which for
any reason is unavailable for payment or prohibited to be paid to Borrower,
including, without limitation, as a result of applicable legal limitations with
respect to repatriation of monies to or from a foreign country and (v) earnings
resulting from any reappraisal, re-evaluation or write-up of assets.
"ADJUSTED TANGIBLE NET WORTH" shall mean, as of the last day of
each Fiscal Quarter, determined on a consolidated basis for Borrower and its
Restricted Subsidiaries, the sum of (a) Borrower's audited Tangible Net Worth as
of April 27, 1996, determined in accordance with GAAP, LESS $500,000 PLUS (b)
seventy-five percent 75% of the cumulative amount of all Net Income for each
Fiscal Quarter commencing on or after April 28, 1996 and ending on each date of
determination; PROVIDED that, in no event shall there be deducted from any such
sum any amount in respect of any Net Losses for any Fiscal Quarter.
"AFFILIATE" shall mean any Person (a) that directly or indirectly,
through one or more intermediaries, controls or is controlled by, or is under
common control with Borrower or any Subsidiary, including, without limitation,
the officers and directors of Borrower or such Subsidiary, (b) that directly or
beneficially owns or holds ten percent (10%) or more of any equity interest in
Borrower or any Subsidiary, or (c) ten percent (10%) or more of whose voting
stock (or in the case of a Person which is not a corporation, ten percent (10%)
or more of any equity interest) is owned directly or beneficially or held by
Borrower or any Subsidiary. Affiliate shall not be deemed -to include Agent or
any Lender. As used herein, the term "control" (including, with correlative
meanings, the terms "controlling," "controlled by" and "under common control
with") shall mean possession, directly or indirectly, of the power to direct the
management or policies of a Person, whether through ownership of securities, by
contract or otherwise.
"AGENT" shall mean Sanwa Business Credit Corporation, a Delaware
corporation, in its capacity as agent for Lenders and not in its individual
capacity as a Lender, and any successor in such capacity appointed pursuant to
SUBSECTION 12.11.
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"AGREEMENT" shall mean this Loan Agreement, as the same may
hereafter be restated, amended, modified or supplemented from time to time.
"AUDIT FEE" shall have the meaning ascribed thereto in
SUBSECTION 2.8.
"AUTHORIZED OFFICER" shall mean the chairman, president, chief
financial officer, chief operating officer, treasurer or a vice president of
Borrower or any Guarantor.
"BASE RATE" shall mean the fluctuating interest rate equal to (a)
in the case of the Revolving Loan, the Prime Rate from time to time in effect
and (b) in the case of the Term Loan, the Prime Rate from time to time in effect
plus three-quarters of one percent (.75%) per annum.
"BASE RATE LOANS" shall mean Loans bearing interest at the Base
Rate.
"BLOCKED ACCOUNT AGREEMENTS" shall have the meaning ascribed
thereto in the Security Agreement.
"BLOCKED ACCOUNTS" shall have the meaning ascribed thereto in the
Security Agreement.
"BORROWER" shall mean High Voltage Engineering Corporation, a
Massachusetts corporation.
"BORROWER PENSION PLAN" shall mean the High Voltage Engineering
Corporation Retirement Plan, as in effect on the Closing Date.
"BORROWER PREFERRED STOCK" shall mean Borrower's Series C
Preferred Stock, $1.00 par value per share, outstanding on the Closing Date and
subject to Borrower's charter as in effect on the closing Date.
"BORROWING AVAILABILITY" shall mean as the context may require (a)
with respect to Borrower, that portion of the Current Asset Base separately
attributable to Borrower (excluding the Property of any Domestic Operating
Subsidiary), LESS (i) the outstanding principal balance of the Revolving Loan
(excluding that portion of the Revolving Loan advanced as intercompany loans by
Borrower to its Domestic Operating Subsidiaries) and (ii) the outstanding Risk
Participation Liability with respect to Letters of Credit issued for Borrower's
benefit; (b) with respect
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to any Domestic Operating Subsidiary, that portion of the Current Asset Base
separately attributable to such Subsidiary (excluding the Property of Borrower
or any other Domestic operating Subsidiary), LESS (i) the outstanding principal
balance of intercompany loans owing by such Subsidiary to Borrower funded by
Revolving Loan advances hereunder and (ii) the outstanding Risk Participation
Liability with respect to Letters of Credit issued for such Subsidiary's benefit
or (c) with respect to Borrower and the Domestic Operating subsidiaries on a
consolidated basis, the aggregate Borrowing Availability of all of them.
"BORROWING NOTICE" shall have the meaning ascribed thereto in
SUBSECTION 2.5(e).
"BUSINESS DAY" shall mean (i) for all purposes other than as
described in clause (ii) below, any day other than a Saturday, Sunday or other
day on which banks in Chicago, Illinois, or Boston, Massachusetts are authorized
or required to be closed and (ii) with respect to all notices, determinations,
borrowings, rate selections and payments in connection with LIBOR Rate Loans,
any day that is a Business Day described in clause (i) above and that is also a
day on which dealings in U.S. dollar deposits are carried on in the London
interbank market for U.S.
dollars.
"CAPITAL EXPENDITURES" shall mean, for any fiscal period, without
duplication, all expenditures (whether made in the form of cash or other
Property) by Borrower or any subsidiary during such period for any fixed assets
or improvements, or for renewals, replacements, substitutions or additions
thereto, which have a useful life of more than one (1) year including, without
limitation, the direct or indirect acquisition of such assets by way of
increased product or service charges, offset items or otherwise.
"CASH EQUIVALENTS" shall mean (i) for Borrower and each Restricted
Subsidiary, bank certificates of deposit, bankers' acceptances, demand deposits
and/or time deposits having a maturity of one year or less with banks organized
under the laws of the United States or of any State thereof, which Banks (a) do
not have set-off rights against the foregoing, other than set-offs for nominal
service charges and similar fees incurred in the ordinary course, (b) have
combined capital and surplus in excess of $250,000,000 and (c) have long-term
unsecured debt obligations rated "A" or better by Standard & Poor's corporation,
"A2" or better by Xxxxx'x Investor Services, Inc. or an equivalent rating by any
other credit rating agency of recognized national standing, (ii) for
Subsidiaries organized under the laws of foreign jurisdictions, bank
certificates of deposit, bankers' acceptances, demand deposits and/or time
deposits with
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banks organized under the laws of the United States, any State thereof or under
the laws of any country which is a member of the organization for Economic
Cooperation and Development, which banks (a) do not have set-off rights against
the foregoing, other than set-offs for nominal service charges and similar fees
incurred in the ordinary course, except that Foreign Subsidiaries may have
restricted accounts which are pledged in the ordinary course of business to
support progress payments, (b) have combined capital and surplus in excess of
$250,000,000 or, as applicable, a comparable value in foreign currency), and
(c) have long-term unsecured debt obligations rated "All or better by Standard &
Xxxx'x Xxxxxxxxxxx, "X0" or better by Xxxxx'x Investor Services, Inc. or an
equivalent rating by any other credit rating agency of recognized national
standing, (iii) commercial paper maturing within one (1) year from the date
issued and rated at least A-1 or the equivalent thereof by Standard & Poors
Corporation, or P-1 or the equivalent thereof by Xxxxx'x Investors Service,
Inc., and (iv) obligations maturing within one (1) year from the date of
acquisition issued or directly and fully guaranteed by the United States
government or any agency thereof.
"CASH FLOW COVERAGE RATIO" shall mean, for any fiscal period,
determined for Borrower and its Restricted Subsidiaries on a consolidated basis,
the ratio of EBITDA to the sum of (without duplication) (a) Interest Charges
paid in cash, (b) all federal and state income, franchise or similar taxes paid
in cash, (c) the current portion of long-term Indebtedness paid in cash during
such period, (d) Capital Expenditures, except to the extent funded with purchase
money Indebtedness or capital leases permitted in accordance with SUBSECTION
8.2(vi).
"CHANGE OF CONTROL" shall mean any of (a) the failure of Xxxxxxxx
X. Xxxx and Xxxxxxxx Press to own at all times, in the aggregate, free and clear
of all Liens, all shares of the capital stock of Parent owned by them on the
Closing Date (excluding transfers to their family members or trusts established
for their family members; PROVIDED that Xxxxxxxx X. Xxxx and Xxxxxxxx Press
continue to retain voting rights with respect to the shares so transferred), (b)
the failure of Xxxxxxxx X. Xxxx, Xxxxxxxx Press, their family members and any
trusts established by and controlled by them for the exclusive benefit of
themselves, their spouses, lineal descendants and other family members to own at
all times, in the aggregate, free and clear of all Liens, (i) at least sixty-six
and two-thirds percent (66 2/3%) of the outstanding capital stock of Parent on a
fully diluted basis and (ii) a sufficient number of shares of capital stock of
Parent on a fully diluted basis to elect a majority of Parent's board of
directors, (c) the failure of Parent to directly own at all times, in the
aggregate, free and clear of all Liens (other than those of Collateral
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Agent, on behalf of Secured Lenders) (i) at least seventy-five percent (75%) of
the outstanding capital stock of Borrower on a fully diluted basis and (ii) a
sufficient number of shares of capital stock of Borrower on a fully diluted
basis to elect a majority of Borrower's board of directors, (d) the failure of
Borrower to directly own, in the aggregate, free and clear of all Liens (other
than those of Collateral Agent, on behalf of Secured Lenders), all of the
outstanding capital stock of each Guarantor on a fully diluted basis, and (e)
the failure of Borrower and Guarantors to own at all times, in the aggregate,
free and clear of all Liens, all of the outstanding capital stock of each
Restricted Subsidiary on a fully diluted basis.
"CHARGES" shall mean all federal, state, county, city, municipal,
local, foreign or other governmental taxes (including, without limitation, taxes
owed to the PBGC at the time due and payable), duties, levies, assessments,
charges, liens, claims or encumbrances upon or relating to (i) the collateral,
(ii) the obligations, (iii) the employees, payroll, income or gross receipts of
Borrower or any Subsidiary, (iv) the ownership or use of any Property of
Borrower or any Subsidiary, or (v) any other aspect of Borrower's or any
Subsidiary's business.
"CLOSING DATE" shall mean the date of this Agreement.
"CODE" shall have the meaning ascribed thereto in SUBSECTION 1.3.
"COLLATERAL" shall mean all property and interests in property now
owned or hereafter acquired by Borrower or any Guarantor in or upon which a Lien
is granted to Collateral Agent, for the benefit of Secured Lenders, by Borrower
or any Guarantor, whether under this Agreement or the other Financing Agreements
or under any other documents, instruments or writings executed by Borrower or
any Guarantor and delivered to Collateral Agent, including, without limitation,
Accounts, General Intangibles, Fixtures, Inventory, Intellectual Property,
Equipment, Real Estate and leased real property.
"COLLATERAL AGENCY AGREEMENT" shall mean that certain Collateral
Agency Agreement, dated as of the Closing Date, among Collateral Agent and
Secured Lenders.
"COLLATERAL AGENT" shall mean Sanwa Business Credit Corporation, a
Delaware corporation, in its capacity as collateral agent for Secured Lenders,
and any successor in such capacity appointed pursuant to the Collateral Agency
Agreement.
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"COLLECTING BANKS" shall have the meaning ascribed thereto in the
Security Agreement.
"COMMITMENT" shall mean, with respect to each Lender, the
Commitment of each Lender with respect to the Revolving Loan and the Term Loan
as of the Closing Date as set forth on SCHEDULE 1; SCHEDULE 1 shall be amended
and Lenders' Pro Rata Shares shall be adjusted from time to time to give effect
to the addition of any new Lenders pursuant to SUBSECTION 11.1.
"CONTINGENT INTEREST PAYMENT AGREEMENTS" shall mean the Contingent
Interest Payment Agreements dated as of March 16, 1988 and April 27, 1991
between Borrower and Quest Equities Corp. and the Contingent Interest Payment
Agreement dated as of April 27, 1991 between Borrower and BancBoston Capital
Inc., each as in effect on the Closing Date.
"CONTINGENT INTEREST PAYMENTS" shall mean the contingent interest
payments payable by Borrower pursuant to the Contingent Interest Payment
Agreements.
"CONVERSION/CONTINUATION NOTICE" shall have the meaning ascribed
thereto in subsection 2.5(f).
"CURRENT ASSET BASE" shall have the meaning ascribed thereto in
subsection 2.1.
"DATCON" shall mean Datcon Instrument Company, a Pennsylvania
corporation.
"DEFAULT" shall mean an event which through the passage of time or
the service of notice, or both, would mature into an Event of Default.
"DEFAULT RATE" shall mean a per annum interest rate equal to the
sum of (a) the Base Rate or LIBOR Rate from time to time in effect, as
applicable, plus (b) two percent (2%). With respect to Base Rate Loans, such
interest rate shall be a fluctuating rate and each change in such interest rate
shall take effect simultaneously with the corresponding change in the Base Rate.
"DOMESTIC OPERATING SUBSIDIARY" shall mean each of Datcon, Robicon
and, with the prior written consent of Agent and Lenders, any
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other Guarantor incorporated under the laws of any State of the United States.
"EBITDA" shall mean, for any applicable fiscal period, (1)
determined for Borrower and its Restricted Subsidiaries on a consolidated basis
or (2) if the context so requires, determined for Borrower or any Domestic
Operating Subsidiary, individually: Net Income, plus (but only to the extent
deducted in determining such Net Income) (a) income and franchise taxes paid or
accrued with respect to such period, (b) Interest Charges during such period and
(c) amortization and depreciation deducted in determining such Net Income for
such period, all as determined in accordance with GAAP consistently applied.
Unless otherwise expressly provided or the context requires otherwise, all
references herein to EBITDA shall refer to EBITDA determined for Borrower and
its Restricted Subsidiaries on a consolidated basis.
"EBITR" shall mean, for any applicable fiscal period, determined
for Borrower and its Restricted Subsidiaries on a consolidated basis, Adjusted
EBITDA, minus (a) amortization and depreciation deducted in determining Adjusted
Net Income for such period, plus (b) one third (1/3) of all payments made during
such period under operating leases, to the extent deducted in determining
Adjusted EBITDA for such period, all as determined in accordance with GAAP
consistently applied.
"ELIGIBLE ACCOUNTS" shall have the meaning ascribed thereto in
subsection 3.2.
"ELIGIBLE INVENTORY" shall have the meaning ascribed thereto in
subsection 3.4.
"ENVIRONMENTAL LAWS" shall mean and includes the following as
now in effect or hereafter amended: the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. [sec.]9601 et seq.; the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act, 42
U.S.C. [sec.]6901 et seq.; the Toxic Substances Control Act, 15 U.S.C. [sec.]
2601, et seq.; the Clean Air Act, 42 U.S.C. [sec.]7401 et seq.; the Federal
Water Pollution Control Act, 33 U.S.C. [sec.]1251 et seq.; the Emergency
Planning and Community Right-to-Know Act, 42 U.S.C. [sec.]11001 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. [sec.]1801 et seq.; the
Atomic Energy Act, 42 U.S.C. [sec.]2011 et seq.; the Safe Drinking Water Act,
42 U.S.C. [sec.]300f et seq. and the state law equivalents; any so-called
"Superfund" or "Superlien" law; and any statute, ordinance, code, rule,
regulation, order, decree or requirement under international, federal, state,
regional, provincial or local law
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(including, without limitation, laws of countries in addition to the United
States, administrative orders and consent decrees) in effect and as amended
regulating, relating to or imposing liability or standards of conduct concerning
public health and safety, protection of the environment, or any pollutant or
contaminant or hazardous, toxic or dangerous substance, waste, chemical or
material, as now or any time hereafter may be existing.
"ENVIRONMENTAL MATTERS" shall have the meaning ascribed thereto in
subsection 6.22.
"EQUIPMENT" shall mean, with respect to any Person, all of such
Person's machinery and equipment, including, without limitation, processing
equipment, conveyors, machine tools, data processing and computer equipment with
software and peripheral equipment (other than software constituting part of the
Accounts), and all engineering, processing and manufacturing equipment, office
machinery, furniture, materials handling equipment, tools, attachments,
accessories, automotive equipment, trailers, trucks, ships, vessels, airplanes,
forklifts, molds, dies, stamps, motor vehicles, rolling stock and other
equipment of every kind and nature, trade fixtures and fixtures not forming a
part of real property, all whether now owned or hereafter acquired, and wherever
situated, together with all appurtenances, additions and accessions thereto,
replacements therefor, all parts therefor, all substitutes for any of the
foregoing, fuel therefor, and all manuals, drawings, instructions, warranties
and rights with respect thereto, and all products and proceeds thereof and
condemnation awards and insurance proceeds with respect thereto.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time, and all rules and regulations promulgated
thereunder.
"ERISA AFFILIATE" shall mean any Person, trade or business that
is, or was at any time during the previous six (6) years, along with Borrower or
any Guarantor, in the same controlled group of corporations, under common
control, or otherwise, treated as a single employer for any purpose under
Section 414 of the IRC.
"EVENT OF DEFAULT" shall mean the occurrence or existence of any
one or more of the following conditions or events:
16
-11-
(a) Borrower fails to pay (i) any principal amount of any Loan
when due or declared due or (ii) any other Obligation hereunder within
five (5) days after the due date thereof;
(b) Borrower or any Guarantor fails or neglects to perform, keep
or observe any of the covenants, conditions or agreements contained in
any of the subsections of this Agreement or in any of the other Financing
Agreements (other than occurrences referred to or embodied in other
provisions of this definition constituting immediate Events of Default)
for a period of (i) twenty (20) days after Borrower's or such Guarantor's
receipt of notice of such breach from Agent or (ii) thirty (30) days
after actual knowledge of such breach by Borrower or any Guarantor;
(c) any warranty or representation now or hereafter made by
Borrower or any Subsidiary in connection with this Agreement or any of
the other Financing Agreements is untrue or incorrect in any material
respect, or any schedule, certificate, statement, report, financial data,
notice or other writing furnished at any time by Borrower or any
Subsidiary to Agent or any Lender is untrue or incorrect in any material
respect, as of the date on which the warranty, representation or the
facts set forth therein are stated, certified or deemed made;
(d) any Liens (other than Permitted Liens), levies or assessments
in excess of $500,000 in the aggregate are filed or recorded with respect
to or otherwise imposed upon all or any part of the collateral or the
Property of Borrower or any Subsidiary by the United States, or any
department, agency or instrumentality thereof, or by any state, county,
municipality or other governmental agency, and are and are not discharged
within thirty (30) days after the filing, recording or other imposition
thereof;
(e) all or any part of the collateral or the Property of Borrower
or any Restricted Subsidiary in excess of $250,000 in the aggregate is
attached, seized, subjected to a writ or distress warrant, or levied
upon, or come within the possession or control of any judgment creditor
and within thirty (30) days thereafter such Collateral or Property is not
returned to Borrower or such Subsidiary or such writ, distress warrant or
levy is not dismissed, stayed or lifted;
(f) Borrower or any Restricted Subsidiary makes an assignment for
the benefit of creditors; convenes a meeting of its
17
-12-
creditors, or any class thereof, for purposes of effecting a moratorium
upon or extension or composition of its debts; applies for, seeks,
consents to, or acquiesces in the appointment of a receiver, trustee or
custodian to take possession of all or any substantial portion of the
Property of Borrower or such Subsidiary; commences any bankruptcy,
reorganization or insolvency case or proceeding or other proceeding under
any federal, state or other law for relief of debtors; or Borrower or
such Subsidiary proposes, authorizes or consents to the taking of any of
the foregoing actions;
(g) Borrower or any Restricted Subsidiary fails to obtain the
dismissal, within sixty (60) days after the commencement thereof, of any
bankruptcy, reorganization or insolvency proceeding, or other proceeding
under any law for the relief of debtors instituted against it; fails
actively to oppose any such proceeding; or in any such proceeding,
defaults or files an answer admitting the material allegations upon which
the proceeding was based or states in any filing in such proceeding its
willingness to have an order for relief entered or its desire to seek
liquidation, reorganization or adjustment of any of its debts;
(h) without the application, approval or consent of Borrower or
any Restricted Subsidiary, any receiver, trustee, examiner, liquidator,
custodian or similar official is appointed to take possession of all or
any substantial portion of the Property of Borrower or such Subsidiary,
or any committee of Borrower's or such Subsidiary's creditors or any
class thereof, is formed for the purpose of monitoring or investigating
the financial affairs of Borrower or such Subsidiary or enforcing such
creditors' rights, or the filing of any motion, complaint or other
pleading in any bankruptcy, reorganization or insolvency case or
proceeding of any Person other than Borrower or such Subsidiary that
seeks the consolidation Borrower's or such Subsidiary's assets and
liabilities with the assets and liabilities of such Person;
(i) Borrower or any Restricted Subsidiary ceases to be Solvent or
admits in writing that it is not Solvent or fails to pay all or any
material portion (measured in numbers of debts or dollar amounts) of its
debts as they become due or admits in writing its present or prospective
inability to pay its debts as they become due;
(j) Borrower or any Restricted Subsidiary is enjoined, restrained,
or in any way prevented by the order of any court or any administrative
or regulatory agency from conducting all or any
18
-13-
material part of its business representing twenty percent (20%) or more
of Borrower's business, or Borrower's and its Subsidiaries' business
taken as a whole, in each case based upon gross revenues for the most
recent twelve months ending on the date of such occurrence, which
injunction, restraint or other prohibition is not stayed or lifted within
thirty (30) days after the entry thereof;
(k) any default or breach under any agreements) evidencing
Indebtedness of Borrower or any Restricted Subsidiary in an aggregate
amount in excess of $500,000 shall occur and shall continue after any
applicable grace period specified in any such document if the effect of
such default or breach is to accelerate, or to permit the acceleration
of, the maturity of all or any part of any such Indebtedness, or any such
Indebtedness shall be declared to be due and payable, or be required to
be prepaid (other than by a regularly scheduled required prepayment),
prior to the stated maturity thereof;
(l) a breach by Borrower or any Subsidiary occurs under any
agreement, document or instrument (other than an agreement, document or
instrument evidencing Indebtedness), whether heretofore, now or hereafter
existing between Borrower or such Subsidiary and any other Person, and
such breach would have a Material Adverse Effect;
(m) entry of a judgment or judgments in an aggregate amount in
excess of $500,000 against Borrower or any Subsidiary which are not
covered by available and collectible insurance and which are not stayed,
bonded, vacated, paid or discharged within thirty (30) days after entry;
(n) any Termination Event which Agent, in good faith, determines
would have a Material Adverse Effect and which is not cured within thirty
(30) days after the occurrence of such Termination Event;
(o) Borrower or any Guarantor, as applicable, fails to (i)
perform, keep or observe any of the covenants contained in SUBSECTION
7.8(iii) OR (v), SUBSECTIONS 7.12 through 7.16 or SECTION 8 or (ii)
maintain any insurance required to be maintained in accordance with
SUBSECTIONS 7.5 or 7.6;
(p) any civil or criminal action, suit or proceeding is initiated
against Borrower or any Subsidiary under any federal or
19
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state racketeering statute (including, without limitation, the Racketeer
Influenced and Corrupt organization Act of 1970, as amended);
(q) a Change in Control occurs;
(r) Collateral Agent ceases to have a legal, valid and perfected
first priority Lien (subject to Permitted Liens) on any collateral of
Borrower or any Subsidiary having an aggregate value in excess of
$250,000 in which a Lien is required to be granted to collateral Agent
pursuant to any Financing Agreement, for any reason other than the
failure of Collateral Agent to take any action within its control;
(s) any of the Financing Agreements shall cease for any reason to
be in full force and effect or is declared null and void or Borrower, any
subsidiary or any other Person (other than Agent or any Lender) shall
disavow its respective obligations thereunder or shall deny that it has
any further obligations thereunder or shall contest or challenge the
validity or enforceability of any thereof, the legality or enforceability
of any of the obligations or the perfection or priority of any Lien
granted to collateral Agent, or gives notice to such effect.
The occurrence or existence of any of the foregoing events shall constitute an
immediate Event of Default unless notice by Agent or a cure period is
specifically required by the description of such event before such event matures
into an Event of Default.
"EXCESS CASH FLOW" shall mean, for any fiscal period, determined
for Borrower and its Subsidiaries on a consolidated basis, without duplication,
EBITDA, LESS (a) Interest Charges paid in cash (excluding Contingent Interest
Payments paid in cash), (b) all federal, state and local income and franchise
taxes paid in cash, (c) the principal portion of long-term Indebtedness paid in
cash (including the principal portion of under capital leases but excluding (i)
mandatory prepayments from Excess Cash Flow and (ii) the principal portion of
long-term Indebtedness specified on EXHIBIT 6.8 which is paid with the proceeds
of the Loans on the Closing Date in accordance with SUBSECTION 4.2(x)), and (d)
Capital Expenditures (excluding (i) those funded with purchase money
Indebtedness or capital leases, (ii) reinvested proceeds from the sale of
capital assets and (iii) expenditures made pursuant to SUBSECTIONS 8.3 or 8.4).
20
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"FACILITY" shall mean any of (a) Borrower's facilities located at
0000 X.X. 00 Xxxx, Xxxxxxx, Xxxxx Xxxxxxxx; Xxxxxx Xxxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxxxxxxxx; 00 Xxxxxxxx Xxx, Xxxxxx, Xxxxxxxxxxxxx; 000 Xxxxxxxxx Xxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx; and 0000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx; (b) each
Resale Facility; (c) Datcon's facilities located at 0000 Xxxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxxx; (d) Robicon's facilities located at 000 Xxxx Xxxxx, Xxx
Xxxxxxxxxx, XX 00000; and (e) any other facility established by Borrower or any
Guarantor hereafter in accordance with the terms of this Agreement.
"FINANCING AGREEMENTS" shall mean, collectively, this Agreement,
the Revolving Notes, the Term Notes, each Pledge Agreement, the Security
Agreement, each Intellectual Property Security Agreement, each Mortgage, and all
other agreements, instruments and documents, including, without limitation,
security agreements, loan agreements, notes, guaranties, mortgages, deeds of
trust, agreements, documents, instruments, pledges, powers of attorney,
consents, assignments, contracts, notices, leases, financing statements and all
other written matter whether heretofore, now, or hereafter executed by or on
behalf of Borrower, any Guarantor or any other Person and delivered to Agent,
Collateral Agent or any Lender in connection with this Agreement, together with
all agreements and documents between Borrower, any Guarantor or any other Person
and Agent, collateral Agent or any Lender referred to therein or contemplated
thereby, as the same may hereafter be amended, modified or supplemented from
time to time.
"FISCAL QUARTER" shall mean each quarterly accounting period of
each Fiscal Year of Borrower.
"FISCAL YEAR" shall mean each annual accounting period of Borrower
ending on the last Saturday in April or the first Saturday in May of each
calendar year.
"FIXTURES" shall mean, with respect to any Person, all "fixtures"
as such term is defined in the code, now owned or hereafter acquired by such
Person, wherever located.
"FLEET NATIONAL BANK" shall mean Fleet National Bank, a national
banking association.
"FOREIGN SUBSIDIARY" shall mean each Subsidiary incorporated under
the laws of a jurisdiction outside of the United States.
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"FUNDING DATE" shall mean the date of each funding, conversion or
continuation of a Loan or issuance of a Letter of Credit or a Risk Participation
therefor, which date shall be a Business Day.
"GAAP" shall mean, as of the date of any determination with
respect thereto, generally accepted accounting principles as used by the
Financial Accounting Standards Board and/or the American Institute of Certified
Public Accountants, consistently applied and maintained throughout the periods
indicated.
"GENERAL INTANGIBLES" shall mean, with respect to any Person, all
of such Person's presently owned or hereafter acquired general intangibles,
including, without limitation, goodwill, choses in action, causes of action,
franchises, methods, sales literature, drawings, specifications, descriptions,
name plates, catalogs, dealer contracts, supplier contracts, distributor
agreements, customer lists, contract rights, confidential information,
consulting agreements, employment agreements, engineering contracts, leasehold
interests in real and personal property, insurance policies (including business
interruption insurance), licenses, permits, and such other Property which
uniquely reflect the goodwill of the business of such Person; deposit accounts,
letters of credit, and General Intangibles relating to other items of
Collateral, including, without limitation, rights to refunds or indemnification;
reversionary or other rights of such Person to excess Plan assets upon
termination or amendment thereof; and proceeds of all of the foregoing,
including without limitation, insurance proceeds, including proceeds of business
interruption insurance, income tax refunds, and claims for tax or other refunds
against any city, county, state, or federal government, or any agency or
authority or other subdivision thereof.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state or other political subdivision thereof, and any agency, department or
other entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"GUARANTOR" shall mean each Domestic Operating Subsidiary, HIVEC
Holdings, and, unless Agent and Lenders shall otherwise consent in writing in
advance, each Subsidiary of Borrower or any of its Subsidiaries formed or
acquired after the Closing Date in accordance with the terms of this Agreement
and incorporated under the laws of any State of the United States.
22
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"GUARANTY" of a Person shall mean any agreement by which such
Person guarantees, endorses or otherwise in any way becomes or is responsible
for any obligations of any other Person, whether directly or indirectly, by
agreement to purchase the indebtedness of any other Person or through the
purchase of goods, supplies or services, or maintenance of working capital or
other balance sheet covenants or conditions, or by way of stock purchase,
capital contribution, advance or loan for the purpose of paying or discharging
any indebtedness or obligation of such other Person or otherwise assures any
creditor of such other Person against loss.
"HAZARDOUS MATERIALS" shall mean the following: hazardous
substances; hazardous wastes; polychlorinated biphenyls ("PCB's") or any
substance or compound containing PCB's; asbestos or any asbestos-containing
materials in any form or condition; radon; any other radioactive materials
including any source, special nuclear or by-product material; petroleum, crude
oil or any fraction thereof which is liquid at standard conditions of
temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch
absolute); and any other pollutant or contaminant or hazardous, toxic or
dangerous chemicals, materials or substances, as all such terms are used in
their broadest sense and defined by Environmental Laws.
"HIVEC HOLDINGS" shall mean HIVEC Holdings, Inc., a Delaware
corporation.
"INDEBTEDNESS" of a Person shall mean at a particular time (i)
indebtedness for borrowed money or for the deferred purchase price of property
or services (other than current accounts payable arising in the ordinary course
of business on terms customary in the trade) in respect of which the such Person
is liable, contingently or otherwise (including non-recourse indebtedness of
such Person), as guarantor, obligor or otherwise or any commitment by which such
Person assures a creditor against loss, including contingent reimbursement
obligations with respect to letters of credit, (ii) indebtedness guaranteed in
any manner by such Person, including guaranties in the form of an agreement to
repurchase or reimburse or any other so-called support or keep-well agreement
including any agreements to maintain balance sheet conditions or income
statement levels; PROVIDED that the amount of indebtedness represented by any
guaranty of limited recourse shall be the lesser of the amount of indebtedness
so guaranteed or the value of the asset to which the recourse of such
indebtedness is limited, (iii) obligations under leases which shall have been or
should be, in accordance with GAAP, recorded as capital leases in respect of
which obligations such Person is liable, contingently or otherwise, as obligor,
guarantor or otherwise, or in respect of which
23
-18-
obligations such Person assures a creditor against loss, (iv) any unfunded
obligation of, or withdrawal liability incurred but not paid by, such Person
with respect to a Multiemployer Plan, and (v) obligations under interest rate
protection agreements.
"INITIAL TERM" shall have the meaning ascribed thereto in
SUBSECTION 2.7.
"INTELLECTUAL PROPERTY" shall mean, with respect to any Person,
all of such Person's present and future designs, patents, patent rights and
applications therefor, technology, trademarks and registrations or applications
therefor, trade names, inventions, copyrights and all applications and
registrations therefor, advertising matter, software or computer programs,
license rights, trade secrets, methods, processes, know-how, drawings,
specifications, descriptions, and all memoranda, notes, and records with respect
to any research and development, whether now owned or hereafter acquired by such
Person, and proceeds of all of the foregoing, including, without limitation,
proceeds of insurance policies thereon.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" shall mean each
Collateral Assignment of Patents, Trademarks, Copyrights and Licenses, dated as
of the Closing Date, duly executed and delivered by Borrower and each Guarantor
in favor of Collateral Agent, for the benefit of Secured Lenders, as the same
may hereafter be amended, modified or supplemented from time to time.
"INTEREST CHARGES" shall mean, for any fiscal period, determined
for Borrower and its subsidiaries on a consolidated basis, the aggregate of all
interest paid or accrued in respect of Indebtedness or otherwise, all as
determined in accordance with GAAP consistently applied.
"INTEREST PERIOD" shall mean, with respect to a LIBOR Rate Loan, a
period of one, two, three or six months, commencing on a Business Day, selected
by Borrower pursuant to SUBSECTION 2.5. Such Interest Period shall end on the
day in the relevant succeeding calendar month which corresponds numerically to
the beginning day of such Interest Period; PROVIDED that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. If an Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall end on the
next succeeding Business Day; provided that if such next succeeding Business
24
-19-
Day falls in a new month, such Interest Period shall end on the immediately
preceding Business Day. In the case of immediately succeeding Interest Periods,
each successive Interest Period shall commence on the day on which the
immediately preceding Interest Period expires. Notwithstanding any of the
foregoing, no Interest Period shall extend beyond the Termination Date.
"INVENTORY" shall mean, with respect to any Person, all of the
inventory of such Person of every kind and description, now or at any time
hereafter owned by or in the custody or possession, actual or constructive, of
such Person, wherever located, including, without limitation, all merchandise,
raw materials, parts, supplies, work-in-process and finished goods intended for
sale, together with all the containers, packing, packaging, shipping and similar
materials related thereto, and including such inventory as is temporarily out of
such Person's custody or possession, including inventory on the premises of
other Persons and items in transit, and including any goods reclaimed, returned
or repossessed upon any accounts, documents, instruments or chattel paper
relating to or arising from the sale of inventory, and all substitutions and
replacements therefor, and all additions and accessions thereto, and all
ledgers, books of account, records, computer printouts, computer runs,
microfilm, microfiche and other computer-prepared information relating to any of
the foregoing, and any and all proceeds of any of the foregoing, including,
without limitation, proceeds of insurance policies thereon. Unless expressly
specified otherwise in this Agreement, each reference in this Agreements to
"Inventory" shall mean and be a reference to Inventory of Borrower and the
Domestic operating subsidiaries only.
"INVESTMENT" of a Person shall mean any loan, advance, extension
of credit (other than accounts receivable arising in the ordinary course of
business on terms customary in the trade), deposit account or contribution of
capital by such Person to any other Person or any investment in, or purchase or
other acquisition of, the stock, partnership interests, notes, debentures or
other securities of any other Person made by such Person. The amount of any
Investment shall be the original cost of such Investment plus the costs of all
additions thereto.
"INVESTMENT PROPERTY" shall, with respect to any Person, have the
meaning ascribed thereto in Section 9-115 of the code in those jurisdictions in
which such definition has been adopted and shall include, without limitation:
(i) all securities, whether certificated or uncertificated, including, without
limitation, stocks, bonds, interests in limited liability companies, partnership
interests, treasuries, certificates of deposit and mutual funds shares; (ii) all
securities entitlements such Person,
25
-20-
including, without limitation, all rights of such Person to any securities
account and any free credit balance or other money owing by any securities
intermediary with respect to any such account; (iii) all securities accounts
held by such Person; (iv) all commodity contracts held by such Person; and (v)
all commodity accounts held by such Person.
"IRC" shall mean the Internal Revenue Code of 1986, as amended
from time to time, and all rules and regulations promulgated thereunder.
"ISSUING BANK" shall mean Fleet National Bank and any other bank
or financial institution which is approved by Borrower and Agent and which
issues Letters of Credit for the account of Borrower pursuant to SUBSECTION 2.1.
"LENDERS" shall mean the financial institutions signatory hereto
and, subject to the terms and conditions hereof, their respective successors and
assigns.
"LETTER OF CREDIT" shall mean a standby or documentary letter of
credit or bankers acceptance issued by an Issuing Bank at the request and for
the account of Borrower and for which Lenders incur Risk Participations.
"LIABILITIES" shall mean all liabilities of Borrower and its
subsidiaries which are or should be reflected on a consolidated balance sheet of
Borrower and its Subsidiaries in accordance with GAAP, and shall include
Indebtedness.
"LIBOR RATE" shall mean, for each Interest Period, a rate of
interest equal to:
(a) the rate of interest determined by Agent at which deposits in
U.S. Dollars for the relevant Interest Period are offered based on
information presented on the Telerate Screen as of 11:00 a.m. (London
time) on the applicable LIBOR Rate Determination Date in the approximate
amount of the applicable LIBOR Rate Loan and having a maturity
approximately equal to such Interest Period; PROVIDED that if at least
two such offered rates appear on the Telerate Screen in respect of such
Interest Period, the arithmetic mean of all such rates (as determined by
Agent) will be the rate used; Provided further, that if the Telerate
Screen ceases to provide LIBOR quotations, such rate shall be the average
rate of interest determined by Agent at which deposits in U.S. Dollars
are offered
26
-21-
for the relevant Interest Period by The Sanwa Bank, Limited (or its
successor) to banks with combined capital and surplus in excess of
$500,000,000 in the London interbank market as of 11:00 a.m. (London
time) on the applicable LIBOR Rate Determination Date in the approximate
amount of the LIBOR Rate Loan and having a maturity approximately equal
to such Interest Period, divided by
(b) one minus the rate (expressed as a decimal) of reserve
requirements in effect on the LIBOR Rate Determination Date (including,
without limitation, all basic, supplemental, marginal and emergency
reserves under any regulations of the Board of Governors of the Federal
Reserve System or other governmental authority having jurisdiction with
respect thereto, as now and from time to time in effect) for Eurocurrency
funding (currently referred to as "Eurocurrency liabilities" in
Regulation D) which are required to be maintained by a member bank of the
Federal Reserve System;
(such rate to be adjusted to the nearest one sixteenth of one percent (1/16%)
or, if there is no nearest one sixteenth of one percent (1/16%), to the next
higher one sixteenth of one percent (1/16%)), PLUS, in the case of the Term
Loan, three and one-quarter of one percent (3.25%) per annum, and in the case of
the Revolving Loan, two and three-quarters of one percent (2.75%) per annum).
"LIBOR RATE DETERMINATION DATE" shall mean each date for
calculating the LIBOR Rate for purposes of determining the interest rate
applicable to any LIBOR Rate Loan made pursuant to subsection 2.5. The LIBOR
Rate Determination Date shall be the second Business Day prior to the first day
of the related Interest Period for a LIBOR Rate Loan.
"LIBOR RATE LOANS" shall mean Loans bearing interest at a LIBOR
Rate.
"LIEN" shall mean, with respect to the Property of any Person, any
statutory or contractual lien, security interest, mortgage, pledge, claim,
encumbrance, charge, hypothecation, assignment, deposit arrangement, filing of,
or agreement to give, a financing statement, encumbrance or preference, priority
or other security agreement or preferential arrangement of any kind or nature
whatsoever, whether voluntary or involuntary (including, without limitation, the
interest of a vendor or lessor under any conditional sale, capitalized lease or
other title retention agreement), in, of or on any of the Property of such
Person in favor of any other Person.
27
-22-
"LITIGATION" shall have the meaning ascribed thereto in
SUBSECTION 6.11.
"LOAN" shall mean either the Revolving Loan or the Term Loan and
"Loans" shall mean all such loans collectively.
"LOAN ACCOUNT" shall have the meaning ascribed thereto in
SUBSECTION 2.12.
"LOAN YEAR" shall mean the period of twelve (12) consecutive
months commencing on the Closing Date and each succeeding period of twelve (12)
consecutive months commencing on each anniversary of the Closing Date during the
Initial Term and any Renewal Term.
"MATERIAL ADVERSE EFFECT" shall mean, as determined by Agent in
its reasonable business judgment, a material adverse effect upon (a) Collateral
Agent's Lien priority in, or the value of, the Collateral, or (b) the business,
properties, operations or condition (financial or otherwise) or business
prospects of Borrower and its Subsidiaries taken as a whole as a result of the
occurrence or existence of any single event or condition or series of events or
conditions in the aggregate, or (c) the ability of Borrower or any Guarantor to
perform its obligations under any of the Financing Agreements, or (d) the
validity or enforceability of any of the Financing Agreements or the rights,
powers and remedies of Agent or any Lender to enforce or collect the
Obligations. In determining whether any individual event would result in a
Material Adverse Effect, notwithstanding that such event does not of itself have
such effect, a Material Adverse Effect shall be deemed to have occurred if the
cumulative effect of such event and all other then existing events would result
in a Material Adverse Effect.
"MAXIMUM REVOLVING LOAN AMOUNT" shall have the meaning ascribed
thereto in SUBSECTION 2.2.
"MONTHLY COLLATERAL REPORT" shall have the meaning ascribed
thereto in subsection 3.1.
"MORTGAGES" shall mean the first mortgages, deeds of trust,
leasehold mortgages, collateral assignment of leases or other real estate
security documents with respect to the Real Estate listed on EXHIBIT 3.6 which
is indicated on the attachment thereto as being so encumbered on or after the
Closing Date, all in form and substance satisfactory to Agent, duly executed and
delivered by Borrower or any Guarantor in favor of
28
-23-
Collateral Agent, for the benefit of Secured Lenders, as the same may hereafter
be amended, modified or supplemented from time to time.
"MULTIEMPLOYER PLAN" shall mean any multiemployer plan within the
meaning of Section 4001(a) (3) of ERISA to which Borrower or any ERISA Affiliate
contributes, is obligated to contribute or was required to contribute within the
immediately preceding six (6) years.
"NET INCOME" or "NET LOSSES" shall mean, for any applicable fiscal
period, determined on a consolidated basis for Borrower and its Restricted
Subsidiaries, consolidated net income (or losses) from continuing operations
after income and franchise taxes and shall have the meaning given such term by
GAAP; provided that there shall be specifically excluded therefrom tax-adjusted
(i) gains or losses from the sale of capital assets, (ii) net income of any
Person (other than a Restricted Subsidiary) in which Borrower or any Restricted
Subsidiary has an ownership interest, unless received by Borrower in a cash
distribution, and (iii) gains or losses arising from extraordinary items, as
defined by GAAP.
"NET WORTH" shall mean, with respect to the Borrower and its
Subsidiaries on a consolidated basis, total assets reflected on a balance sheet
prepared in accordance with GAAP less total liabilities reflected on a balance
sheet prepared in accordance with GAAP.
"NOTE" or "NOTES" shall mean one or more of the Revolving Loan
Notes or the Term Loan Notes, or a combination thereof.
"OBLIGATIONS" shall mean all of Borrower's and each Guarantor's
obligations, liabilities and indebtedness to Agent, Lenders, any affiliate of
Agent or Lenders and/or, as expressly provided herein, any Participant, under,
relating to or otherwise arising in respect of this Agreement or any Financing
Agreement, of any and every kind and nature, whether heretofore, now or
hereafter owing, arising, due or payable and howsoever evidenced, created,
incurred, acquired, or owing, whether primary, secondary, direct, indirect,
contingent, fixed or otherwise (including, without limitation, obligations of
performance) and whether arising or existing under written agreement, oral
agreement or operation of law.
"PARENT" shall mean Xxxxxxx Corporation, a Delaware corporation.
29
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"PARTICIPANT" shall mean any Person now or from time to time
hereafter participating with any Lender in the Loans made by such Lender to
Borrower pursuant to this Agreement.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any
successor thereto.
"PENSION PLAN" shall mean any Plan that is a defined benefit plan
(other than a Multiemployer Plan) defined in section 3(35) of ERISA.
"PERMITTED ACQUISITION" shall have the meaning ascribed thereto in
SUBSECTION 8.3(c).
"PERMITTED INVESTMENTS" shall have the meaning ascribed thereto in
SUBSECTION 8.4.
"PERMITTED LIENS" shall have the meaning ascribed thereto in
SUBSECTION 8.1.
"PERSON" shall mean any individual, sole proprietorship,
partnership, joint venture, trust, limited liability company, unincorporated
organization, association, corporation, institution, entity, party, or
government (whether national, federal, state, provincial, county, city,
municipal or otherwise, including, without limitation, any instrumentality,
division, agency, body or department thereof).
"PLAN" shall mean any employee benefit plan within the meaning of
Section 3(3) of ERISA (other than any Multiemployer Plan) under which Borrower
or any ERISA Affiliate is, or was at any time within the previous six (6) years,
an "employer" within the meaning of Section 3(5) of ERISA, including without
limitation, the Borrower Pension Plan.
"PLEDGE AGREEMENT" shall mean each Stock Pledge Agreement, dated
as of the Closing Date, duly executed and delivered by Borrower, Datcon and
HIVEC Holdings, in favor of Collateral Agent, for the benefit of Secured
Lenders, as the same may hereafter be amended, modified or supplemented from
time to time; PROVIDED that, only 65% of the capital stock of HIVEC, B.V., a
Netherlands corporation, shall be pledged pursuant to the HIVEC Holdings Pledge
Agreement and only 65% of the capital stock of Crisrolo, S.L. shall be pledged
pursuant to the Datcon Pledge Agreement.
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"PRIME RATE" shall mean the highest "Prime Rate" of interest
quoted, from time to time, by THE WALL STREET JOURNAL; PROVIDED, HOWEVER, that
in the event that THE WALL STREET JOURNAL ceases quoting a "Prime Rate", "Prime
Rate" shall mean the per annum rate of interest quoted as the "Bank Prime Loan"
rate for the most recent weekday for which such rate is quoted in Statistical
Release H.15 (519) published from time to time by the Board of Governors of the
Federal Reserve System; PROVIDED FURTHER that in the event that both of the
aforesaid indices cease to be published or to quote rates of the aforesaid
types, the "Prime Rate" shall be determined from a comparable index chosen by
Agent in good faith. The "Prime Rate" shall change effective an the date of the
publication of any change in the applicable index by which such "Prime Rate" is
determined.
"PRO FORMAL" shall have the meaning ascribed thereto in
SUBSECTION 6.4(a).
"PRO RATA SHARE" shall mean the percentage obtained by dividing
(a) the Commitments of a Lender by (b) the aggregate Commitments of all Lenders,
as such percentage may be adjusted by assignments permitted pursuant to
SUBSECTION 11.1. The sum of the Pro Rata Shares of all Lenders at any date of
determination shall equal one hundred percent (100%).
"PROJECTIONS" shall mean the projected balance sheets on a
consolidated and consolidating basis, profit and loss Statements on a
consolidated and consolidating basis, and cash flow statements on a consolidated
basis of Borrower, prepared in accordance with GAAP, together with appropriate
supporting details and a statement of underlying assumptions, which have been
and will be delivered to Agent and Lenders in accordance with the terms of
SUBSECTION 7.1; PROVIDED, that the first such set of Projections, a copy of
which is attached as EXHIBIT 6.4-2, shall not include consolidating balance
sheets or cash flow statements.
"PROPERTY" shall mean, with respect to any Person, any and all
assets or property, whether real, personal, tangible, intangible, or mixed, of
such Person, or other assets or property leased or operated by such Person.
"QUALIFIED IPO" means an initial public offering of shares of the
capital stock of Borrower or any Guarantor (a) pursuant to which Borrower or
such Guarantor shall receive aggregate net proceeds of at least $10,000,000, (b)
which has been consummated in accordance with a
31
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filed registration statement prepared on Form S-1 and all applicable laws, (c)
from and after the consummation of which, Borrower or such Guarantor, as
applicable, shall be, and shall be qualified to be, listed on the NASDAQ
national market, (d) with respect to which no claim, suit, proceeding, petition,
governmental investigation, injunction or any other litigation shall have
commenced or been threatened against any party to any Financing Agreement or any
Affiliate thereof, and (e) on or prior to the consummation of which Agent shall
have received copies of all opinions and other material documents delivered in
connection therewith.
"RATE OPTION" shall mean the. LIBOR Rate or the Base Rate, as
applicable.
"REAL ESTATE" shall mean, with respect to any Person, the real
property, mineral rights, leasehold or other interests in real property together
with any purchase options and other rights related to such leaseholds or other
interests owned, leased, used or operated now or hereafter by such Person, all
Fixtures and personal property used in conjunction therewith and such Person's
rights to leases, rents and profits with respect thereto.
"RELATED TRANSACTIONS" shall mean, collectively, all of the
transactions contemplated by this Agreement, the other Financing Agreements, the
Subordinated Debt Documents, the Senior Unsecured Debt Documents and the Senior
Secured Debt Documents.
"RELATED TRANSACTIONS DOCUMENTS" shall mean, collectively, all
documents and agreements executed, delivered or filed in connection with the
Related Transactions.
"RENEWAL TERM" shall have the meaning ascribed thereto in
SUBSECTION 2.7(a).
"REQUIRED LENDERS" shall mean (i) Lenders having in the aggregate
at least sixty-six and two-thirds percent (66 213%) of the Total Revolving Loan
Facility, or (ii) if the Revolving Credit Facility has been terminated, Lenders
having in the aggregate at least sixty-six and two-thirds percent (66 2/3%) of
the aggregate outstanding amount of the Loans.
"RESALE FACILITY" shall mean each facility of Borrower located at
000 Xxx-xxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx; 0 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx; 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx; and 000 Xxxxxxxx Xxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx.
32
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"RESTRICTED PAYMENT" shall mean: (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class of Stock
of Borrower now or hereafter outstanding (including Borrower Preferred Stock) ,
except a dividend payable solely in shares of that class of Stock to the holders
of that class; (b) any redemption, conversion, exchange, retirement, sinking
fund or similar payment, purchase or other acquisition for value direct or
indirect of any shares of any class of Stock of Borrower now or hereafter
outstanding; (c) any payment or prepayment of principal or premium, if any, or
interest on, fees with respect to, redemption, conversion, exchange, purchase,
retirement, defeasance, sinking fund or similar payment with respect to
Subordinated Debt of Borrower; (d) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of Stock of Borrower now or hereafter outstanding and any
Contingent Interest Payment; or (e) any payment by Borrower or any Subsidiary of
any management fees, advisor fees or similar fees whether pursuant to a
management agreement or otherwise to any Affiliate of Borrower or such
Subsidiary.
"RESTRICTED PAYMENT POOL" shall mean, at any time of
determination, an amount equal to (a) the sum of (i) $2, 000, 000 plus (ii)
fifty percent (50%) of Net Income (or minus one hundred percent (100%) of Net
Losses) for the period commencing April 28, 1996 and ending on the last day of
any Fiscal Quarter preceding the date of a Restricted Payment PLUS (iii) net
proceeds from each Qualified IPO (to the extent such proceeds are retained by
Borrower and its Domestic operating Subsidiaries) less (b) the aggregate amount
of all Restricted Payments made pursuant to SUBSECTION 8.10(iv).
"RESTRICTED SUBSIDIARY" shall mean each Guarantor, HIVEC, B.V., a
Netherlands corporation, HIVEC Holdings, HVE Europa, B.V., a Netherlands
corporation, Crisrolo, S.L., a Spanish corporation, Industrias Xxxxx, X.X., a
Spanish corporation, and, unless Agent and Lenders shall otherwise determine in
writing in advance, each Subsidiary of Borrower or any of its Subsidiaries
formed or acquired after the Closing Date in accordance with the terms of this
Agreement.
"REVOLVING LOAN" shall have the meaning ascribed thereto in
subsection 2.1.
"REVOLVING LOAN COMMITMENT" shall mean, with respect to each
Lender, the Commitment of each Lender with respect to the Revolving Loan as of
the Closing Date as set forth on SCHEDULE 1;
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SCHEDULE 1 shall be amended and Lenders' Pro Rata Shares shall be adjusted from
time to time to give effect to the addition of any new Lenders pursuant to
SUBSECTION 11.1.
"REVOLVING LOAN NOTES" shall have the meaning ascribed thereto in
subsection 2.3.
"RISK PARTICIPATIONS" and "RISK PARTICIPATION" shall have the
respective meanings ascribed thereto in SUBSECTION 2.1(c).
"RISK PARTICIPATION LIABILITY" means, as to each Risk
Participation, all liabilities of Lenders with respect to the transaction for
which such Risk Participation was issued, whether contingent or otherwise,
including with respect to a letter of credit: (a) the amount available to be
drawn or which may become available to be drawn; (b) all amounts which have been
paid or made available by the Issuing Bank or Lenders to the extent not
reimbursed; and (c) all unpaid interest, fees and expenses with respect thereto.
"RISK PARTICIPATION RESERVE" means, at any date of determination,
a reserve deducted from the Total Revolving Loan Facility, in an amount equal to
(a) the aggregate amount of Risk Participation Liability with respect to Risk
Participations outstanding at such time, PLUS (b) the aggregate amount
theretofore paid by Lenders under the Risk Participations for which Lenders have
not been reimbursed or which has not been debited to the Loan Account pursuant
to subsection 2.1(c).
"ROBICON" shall mean Halmar Robicon Group, Inc., a Pennsylvania
corporation.
"SBCC" shall mean Sanwa Business Credit Corporation, a Delaware
corporation, in its individual capacity, and its successors.
"SECURED LENDERS" shall mean, collectively, Lenders and the
holders of the Senior Secured Notes.
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended.
"SECURITY AGREEMENT" shall mean that certain Security Agreement,
dated as of the Closing Date, duly executed and delivered by Borrower and each
Guarantor in favor of Collateral Agent, for the benefit of Secured Lenders, as
the same may hereafter be amended, modified or supplemented from time to time.
34
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"SENIOR FIXED CHARGE COVERAGE RATIO" shall mean, for any fiscal
period, determined for Borrower and its Restricted Subsidiaries on a
consolidated basis, the ratio of (a) EBITR to (b) the sum of (i) Interest
Charges paid or accrued (other than payments or accruals with respect to
contingent Interest Payment obligations) in respect of Total Funded Debt (other
than Indebtedness which by its terms is expressly subordinated to the
Obligations) and (ii) one third (1/3) of all payments made during such period
under operating leases.
"SENIOR SECURED DEBT DOCUMENTS" shall mean all Senior Secured
Notes and other agreements, instruments and documents, whether heretofore, now,
or hereafter executed in connection therewith, together with all agreements and
documents referred to therein or contemplated thereby, each as in effect on the
date hereof, except to the extent amended in accordance with the terms hereof.
"SENIOR SECURED FUNDED DEBT" shall mean, as of any date of
determination, determined for Borrower and its Restricted Subsidiaries on, a
consolidated basis, the Indebtedness evidenced by the Revolving Loan, the Term
Loan, the other Obligations, the Senior Secured Notes, capital leases,
mortgages, industrial development revenue bonds and similar Indebtedness, all as
determined in accordance with GAAP consistently applied.
"SENIOR SECURED FUNDED DEBT RATIO" shall mean, for any fiscal
period, determined for Borrower and its Restricted Subsidiaries on a
consolidated basis, the ratio of Senior Secured Funded Debt at the end of such
period to EBITDA for such period.
"SENIOR SECURED NOTES" shall mean, collectively, each of those
certain Senior Secured Notes issued by Borrower on the date hereof in the
aggregate principal amount of Twenty Million Dollars ($20,000,000), on terms and
conditions and in form and substance satisfactory to Lenders, each as in effect
on the date hereof, except to the extent amended in accordance with the terms
hereof.
"SENIOR UNSECURED DEBT DOCUMENTS" shall mean all Senior Unsecured
Notes and other agreements, instruments and documents, whether heretofore, now,
or hereafter executed in connection therewith, together with all agreements and
documents referred to therein or contemplated thereby, each as in effect on the
date hereof, except to the extent amended in accordance with the terms hereof.
35
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"SENIOR UNSECURED NOTES" shall mean, collectively, each of those
certain Senior Unsecured Notes issued by Borrower on the date hereof in the
aggregate principal amount of Seven Million Dollars ($7,000,000), on terms and
conditions and in form and substance satisfactory to Lenders, each as in effect
on the date hereof, except to the extent amended in accordance with the terms
hereof.
"SERVICE" shall mean the Internal Revenue service and any
successor thereof.
"SOLVENCY AFFIDAVIT" shall mean the Affidavit of Solvency of even
date herewith executed and delivered by the chief financial officer of Borrower
in favor of Agent, for the benefit of Lenders.
"SOLVENT" shall mean, when used with respect to any Person, that
(i) the fair saleable value of its Property (including rights of contribution
from its Affiliates as permitted by applicable law) is in excess of the total
amount of its Liabilities (including for purposes of this definition all
liabilities, whether or not reflected on a balance sheet prepared in accordance
with GAAP, and whether direct or indirect, fixed or contingent, secured or
unsecured, disputed or undisputed), (ii) it is able to pay its debts or
obligations in the ordinary course as they mature, and (iii) that Person has
capital sufficient to carry on its business and all businesses in which it is
about to engage. "SOLVENCY" shall have a correlative meaning.
"STOCK" shall mean all shares, options, general or limited
partnership interests or other equivalents (regardless of how designated),
participation or other equivalents (however designated) of or in a corporation,
partnership or equivalent entity, whether voting or non-voting, including,
without limitation, common stock, warrants, preferred stock, convertible
debentures or any other debt or equity security, and all agreements, instruments
and documents convertible, in whole or in part, into any one or more of all of
the foregoing.
"SUBORDINATED DEBT" shall mean any Indebtedness issued or
otherwise owing by Borrower (a) under or pursuant to the Subordinated Notes or
(b) in favor of a Person the payment of which is subordinated to the payment of
the Obligations pursuant to subordination provisions satisfactory to Required
Lenders and (c) upstream Guaranties of the Subordinated Notes by one or more of
the Restricted subsidiaries, which guaranties are subject to subordination
provisions satisfactory to Required Lenders.
36
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"SUBORDINATED DEBT DOCUMENTS" shall mean all Subordinated Notes
and other agreements, instruments, documents, other written matter whether
heretofore, now, or hereafter executed in connection therewith, together with
all agreements and documents referred to therein or contemplated thereby, each
as in effect on the date hereof, except to the extent amended in accordance with
the terms hereof.
"SUBORDINATED NOTES" shall mean, collectively, each of those
certain Senior Subordinated Notes issued by Borrower on the date hereof in the
aggregate principal amount of Twenty Five Million Dollars ($25,000,000), on
terms and conditions and in form and substance satisfactory to Lenders, each as
in effect on the date hereof, except to the extent amended in accordance with
the terms hereof.
"SUBSIDIARY" of a Person shall mean (i) any corporation of which
more than fifty percent (50%) of the outstanding securities having ordinary
voting power to elect a majority of the board of directors or other Persons
performing similar functions is at any time of determination, directly or
indirectly, owned or controlled by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its subsidiaries, or (ii) any
partnership, association, trust, grantor trust, joint venture or similar
business organization more than fifty percent (50%) of the equity or partnership
interests having ordinary voting power or power of direction of which shall at
any time of determination be so owned or controlled. Unless otherwise expressly
provided or the context requires otherwise, all references herein to a
"Subsidiary" shall mean a Subsidiary of Borrower.
"TANGIBLE NET WORTH" shall mean tangible net worth as determined
in accordance with GAAP.
"TAXES" shall mean taxes, liens, imposts, deductions, Charges or
withholdings, and all liabilities with respect thereto, excluding taxes imposed
on or measured by the net income of any Lender by the jurisdictions under the
laws of which such Lender or its applicable lending off ice is organized or any
transfer taxes imposed as a results of the transfer of any Notes.
"TELERATE SCREEN" shall mean the display designated as Screen 3750
on the Telerate System or such other screen on the Telerate System as shall
display the London interbank offered rates for deposits in U.S. dollars quoted
by selected banks.
37
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"TERM LOAN" shall have the meaning ascribed thereto in
SUBSECTION 2.4.
"TERM LOAN COMMITMENT" shall mean, with respect to each Lender,
the Commitment of each Lender with respect to the Term Loan as of the Closing
Date as set forth on Schedule 1; Schedule 1 shall be amended and Lenders' Pro
Rata Shares shall be adjusted from time to time to give effect to the addition
of any new Lenders pursuant to SUBSECTION 11.1.
"TERM LOAN NOTES" shall have the meaning ascribed thereto in
subsection 2.4.
"TERMINATION DATE" shall mean (a) with respect to the Revolving
Loan, April 30, 2001 and (b) with respect to the Term Loan, April 30, 2003.
"TERMINATION EVENT" shall mean: (a) the tax disqualification of a
Plan under Section 401(a) of the IRC; (b) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder unless the thirty
(30) day notice to the PBGC has been waived for the event; (c) the withdrawal of
Borrower or any ERISA Affiliate from a Pension Plan during a plan year in which
it was a "substantial employer" as defined in section 4001 (a) (2) or 4068 (f)
of ERISA or was deemed such under Section 4062 (e) of ERISA; (d) the termination
of a Pension Plan, the filing of a notice of intent to terminate a Pension Plan
or the treatment of a Pension Plan amendment as a termination under Section
4041(e) of ERISA; (e) the institution of proceedings to terminate a Pension Plan
by the PBGC; (f) any other event or condition which would constitute grounds
under Section 4042(a) of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan; (g) the partial or complete withdrawal
of Borrower or any ERISA Affiliate from a Multiemployer Plan; (h) the imposition
of a Lien pursuant to Section 412 of the IRC or Section 302 of ERISA; (i) any
event or condition which results in the reorganization or insolvency of a
Multiemployer Plan under Section 4241 or Section 4245 of ERISA, respectively; or
(j) any event or condition which results in the termination of a Multiemployer
Plan under Section 4041A of ERISA or the institution by the PBGC of proceedings
to terminate a Multiemployer Plan under Section 4042 of ERISA.
"TOTAL FIXED CHARGE COVERAGE RATIO" shall mean, for any fiscal
period, determined for Borrower and its Restricted Subsidiaries on a
consolidated basis, the ratio of (a) EBITR to (b) the sum of (i) Interest
Charges paid or accrued (other than payments or accruals with respect to
38
-33-
Contingent Interest Payment obligations) in respect of Total Funded Debt and
(ii) one third (1/3) of all payments made during such period under operating
leases.
"TOTAL FUNDED DEBT" shall mean, for any applicable fiscal period,
determined for Borrower and its Restricted Subsidiaries on a consolidated basis,
all Indebtedness for borrowed money which by its terms matures more than one
year from, or is directly or indirectly renewable or extendible at the option of
the obligor for a period of more than one year from, the date of its creation,
including, without limitation, current maturities of long-term Indebtedness,
Senior Secured Notes, Senior Unsecured Notes and the Indebtedness evidenced by
the Subordinated Notes.
"TOTAL LEVERAGE RATIO" shall mean, for any fiscal period,
determined for Borrower and its Subsidiaries on a consolidated basis, the ratio
of Total Funded Debt at the end of such period to EBITDA for such period.
"TOTAL LOAN FACILITY" shall mean Thirty million Dollars
($30,000,000).
"TOTAL REVOLVING LOAN FACILITY" shall mean Twenty million Dollars
($20,000,000), as such amount may be reduced, if at all, from time to time in
accordance with the terms of this Agreement.
"UNRESTRICTED SUBSIDIARIES" shall mean each Subsidiary of Borrower
or any of its Subsidiaries which is not a Restricted Subsidiary and is formed or
acquired in accordance with the terms of this Agreement after the date hereof.
"UNUSED LINE FEEL" shall have the meaning ascribed thereto in
subsection 2.10.
1.2 ACCOUNTING TERMS. Any accounting terms used in this Agreement
which are not specifically defined herein shall have the meanings customarily
given them in accordance with GAAP. All determinations of the book value of
Inventory contemplated hereby shall be at the lower of cost (on a first-in,
first-out basis) or market.
1.3 OTHER TERMS DEFINED IN ILLINOIS UNIFORM COMMERCIAL CODE. All other
terms contained in this Agreement (and which are not otherwise specifically
defined herein) shall have the meanings provided in the Uniform Commercial Code
of the State of Illinois or the laws of any other
39
-34-
state which are required to be applied in connection with the issue of
perfection or non-perfection of Liens on the Collateral (the "Code") to the
extent the same are used or defined therein.
1.4 EFFECTIVE DATE. All references to "the date hereof," "the date of
this Agreement," "the effective date hereof," "effective as of the date hereof"
or "of even date herewith" contained herein or in the other Financing Agreements
shall be deemed to refer to the Closing Date of this Agreement.
1.5 REFERENCES. The foregoing definitions shall be equally applicable
to both the singular and plural forms of the defined terms. Unless otherwise
expressly provided or unless the context requires otherwise, all references in
this Agreement to Sections, subsections, Schedules and Exhibits shall mean and
refer to Sections, subsections, Schedules and Exhibits of this Agreement.
References to Persons include their respective permitted successors and assigns
or, in the case of a governmental authority, Persons succeeding to the relevant
functions of such Persons. All references to statutes shall include all related
regulations and shall include all amendments of same and any successor or
replacement statutes and regulations.
2. CREDIT.
2.1 REVOLVING CREDIT FACILITY, REVOLVING LOAN AND RISK PARTICIPATIONS.
(a) REVOLVING LOAN. Provided there does not then exist a Default or an
Event of Default, and subject to the terms and conditions herein set forth,
including, without limitation, SUBSECTION 2.2, each Lender having a Revolving
Loan commitment agrees severally (and not jointly) to make its Pro Rata share of
40
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IN WITNESS WHEREOF, this Agreement has been duly executed as of the day
and year first above written.
HIGH VOLTAGE ENGINEERING
CORPORATION, as Borrower
By:
------------------------------------
Title:
---------------------------------
DATCON INSTRUMENT COMPANY, as a
Guarantor
By:
------------------------------------
Title:
---------------------------------
HALMAR ROBICON GROUP, INC.,
as a Guarantor
By:
------------------------------------
Title:
---------------------------------
HIVEC HOLDINGS, INC.
as a Guarantor
By:
------------------------------------
Title:
---------------------------------
[signature pages end]
41
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BORROWER AND EACH GUARANTOR ACKNOWLEDGES THAT IT HAS BEEN ADVISED BY COUNSEL OF
ITS CHOICE WITH RESPECT TO THIS LOAN AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY, AND BORROWER AND EACH GUARANTOR ACKNOWLEDGES AND AGREES THAT (I) EACH OF
THE WAIVERS SET FORTH HEREIN, INCLUDING, WITHOUT LIMITATION, THOSE WAIVERS SET
FORTH IN SUBSECTION 9.3. 9.4 AND 10.7 WERE KNOWINGLY AND VOLUNTARILY MADE, (II)
THE OBLIGATIONS OF AGENT AND EACH LENDER HEREUNDER, INCLUDING THE OBLIGATION TO
ADVANCE AND LEND FUNDS TO BORROWER IN ACCORDANCE HEREWITH, SHALL BE STRICTLY
CONSTRUED AND SHALL BE EXPRESSLY SUBJECT TO BORROWER'S AND EACH GUARANTOR'S
COMPLIANCE IN ALL RESPECTS WITH THE TERMS AND CONDITIONS HEREIN SET FORTH, AND
(III) NO REPRESENTATIVE OF AGENT OR ANY LENDER HAS WAIVED OR MODIFIED ANY OF THE
PROVISIONS OF THIS AGREEMENT AS OF THE DATE HEREOF AND NO SUCH WAIVER OR
MODIFICATION FOLLOWING THE DATE HEREOF SHALL BE EFFECTIVE UNLESS MADE IN
ACCORDANCE WITH SUBSECTION 10.1.
42
One South Xxxxxx Drive, 39th Floor SANWA BUSINESS CREDIT
Xxxxxxx, Xxxxxxxx 00000 CORPORATION, as Agent and
Attn: Executive Vice President as a Lender
Commercial Finance Division
Telecopy No.: (000) 000-0000
By:
------------------------------------
Title:
---------------------------------
00 Xxxxx Xxxxxx XXXXX XXXXXXXX XXXX,
Xxxxxx, XX 00000 as a Lender
Attn: Xxxxx X. Xxxxx Vice President
Telecopy No.: (000) 000-0000
By:
------------------------------------
Title:
---------------------------------
[signature pages end]
