REVOLVING CREDIT AND TERM LOAN AGREEMENT
This REVOLVING CREDIT AND TERM LOAN AGREEMENT is made as of the 29th
day of November, 1999 by and among CHEMFAB CORPORATION, a Delaware corporation
("CHEMFAB" or the "Borrower"), those wholly-owned subsidiaries of CHEMFAB now or
hereafter listed in Exhibit A hereto which are presently or hereafter become
signatories hereof by executing and delivering a counterpart signature page
hereto to the Agent (the "Subsidiaries", and with CHEMFAB, the "Borrowers") and
BROWN BROTHERS HARRIMAN & CO., a New York limited partnership ("BBH&Co"), as a
Lender (as defined below), and as Agent (as defined below) for itself and the
other Lenders, FLEET BANK NH, a banking corporation organized under the laws of
New Hampshire ("Fleet"), CITIZENS BANK NEW HAMPSHIRE, a banking corporation
organized under the laws of New Hampshire ("Citizens"), BANK OF NEW HAMPSHIRE, a
banking corporation organized under the laws of New Hampshire ("BNH") and the
other Lenders from time to time party hereto.
ss.1. DEFINITIONS AND RULES OF INTERPRETATION.
ss.1.1. Definitions. The following terms shall have the meanings set forth
in this ss.1 or elsewhere in the provisions of this Credit Agreement referred tobelow:
Adjusted Tangible Net Worth. Means Borrowers' Tangible Net
Worth net of intangible assets acquired in the UroQuest Transaction. After the
UroQuest Transaction, Adjusted Tangible Net Worth shall mean Borrowers' Tangible
Net Worth, reduced by the amount of intangible assets acquired up to and
including the UroQuest Transaction, but not including any intangible assets
acquired in connection with any subsequent acquisitions.
Affected Lender. The meaning specified in ss.17.4.
Affiliate. As applied to any Person, a spouse of such Person,
any relative (by blood, adoption or marriage) of such Person within the third
degree, any managing member, director or officer of such Person, any
corporation, association, firm or other entity of which such Person is a
managing member, director or officer and any other Person direct or indirectly
controlling, controlled by or under direct or indirect common control with suchPerson.
Agent. BBH&Co in its capacity as agent for the Lenders
hereunder, as well as its successors and assigns in such capacity pursuant toss.12.8.
Authorized Share Repurchases. The meaning specified in ss.7.8.
Available Revolving Commitment. The Total Revolving Commitment
less the sum of the outstanding principal amounts advanced as Revolving CreditLoans.
Base Rate. For any date, a rate per annum equal to the higher
of (i) the Federal Funds Effective Rate in effect on such day plus one-half of
one percent (.50%) or (ii) the annual rate of interest publicly announced from
time to time by the Agent as its "commercial base rate" in effect on such day.
Base Rate Loans. Loans bearing interest calculated by
reference to the Base Rate.
Base Rate Margin. The meaning specified in ss.2.6(a).
Basis Point. One one hundredth of one percent.
Borrower. CHEMFAB CORPORATION.
Borrowers. The Borrower and its wholly-owned Subsidiaries
which are now or hereafter become parties to this Credit Agreement.
Breakage Costs. With respect to any LIBOR Loan or EURIBOR Loan
means, the product of (i) the amount of the LIBOR Loan or EURIBOR Loan which is
pre-paid or failed to be borrowed (after presentation by the borrower of a LIBOR
or EURIBOR Loan Request) times (ii) the difference between the existing
effective rate on such LIBOR Loan or EURIBOR Loan and the rate at which the
Agent determines that the amount of any such Loan can be placed in the London
Interbank Market, EURO Interbank Market or in United States Government
Securities (whichever rate is higher) for the remainder of the Interest Period
times (iii) the number of days until the expiration of the Interest Period
divided by 360, plus any other costs and expenses which Lenders incur resulting
from the Borrowers' prepayment of, or failure to borrow such Loan.
Business Day. With respect to transactions between the
Borrowers and the Lenders, any day on which banking institutions in Boston,
Massachusetts are open for the transaction of banking business and, in the case
of LIBOR Loans and EURIBOR Loans, a day which is a LIBOR Business Day, and with
respect to transactions among the Lenders, any day on which banking institutions
in the respective jurisdictions of the Lenders are open for the transaction of
banking business.
Capital Expenditures. Any payment made directly or indirectly
by the Borrowers for the purpose of acquiring or constructing fixed assets, real
property or equipment which in accordance with GAAP would be added as a debit to
the Consolidated fixed asset account of Borrowers, including without limitation
amounts paid or payable under any conditional sale or other title retention
agreement or under any lease or other periodic payment arrangement which is of
such a nature that payment obligations of Borrowers thereunder would be required
by GAAP to be capitalized and shown as liabilities on the Consolidated balance
sheet of the applicable Borrower.
Capitalization. As of the date of any determination thereof,
the sum of (a) Tangible Net Worth and (b) Indebtedness of Borrowers on a
Consolidated basis.
Capitalized Leases. Leases under which a Person is the lessee
or obligor, the discounted future rental payment obligations under which are
required to be capitalized on the balance sheet of such Person in accordance
with GAAP.
Cash Flow. For any period, means Borrowers' EBITDA minus non-
financed Capital Expenditures and cash taxes paid during such period.
Change in Control. Shall be deemed to have occurred if any
Person or group (within the meaning of Rule 13d-5 of the Securities and Exchange
Commission as in effect on the date hereof) shall own directly or indirectly,
beneficially or of record, shares representing more than 50%, on a fully-diluted
basis, of the aggregate ordinary voting power of any Borrower.
Closing Date. The first date on which the conditions set
forth in ss.10 and ss.11 have been satisfied and any Loans are made.
Code. The Internal Revenue Code of 1986, as amended.
Commitment. As to any Lender, such Lender's portion of the
Total Commitment equal to such Lender's Percentage.
Commitment Fee. The meaning specified in ss.2.2(a)
Compliance Certificate. The certificate described in ss.6.2(f)
Consolidated. With reference to any term herein, shall mean
that term as applied to the accounts of Borrowers consolidated with their
Subsidiaries in accordance with GAAP.
Credit Agreement. This Revolving Credit and Term Loan
Agreement, including the Schedules and Exhibits hereto, as the same may be
modified or amended hereafter.
Current Lines of Business. The lines of business conducted by
the Borrower on the Closing Date, giving effect to the UroQuest Transaction, and
any business and activities incidental thereto, including: the design,
manufacture, fabrication, marketing, sale and distribution of polymer-based
engineered products for specialized operating environments, including the
manufacturing of fluoropolymer composites, fluoroplastics, fluoroelastomers,
silicone elastomers and adhesives, and products such as laminates, films, coated
fabrics, tapes, seals, diaphragms, gaskets, sleeves, tubing and medical devices
and assemblies.
Debt Coverage Ratio. The meaning specified in ss.2.6(a).
Dollars or $. Dollars in lawful currency of the United States
of America.
Drawdown Date. The date on which any Loan is made or is to be
made, and the date on which any Loan is converted or continued in accordance
with ss.2.8.
EBITDA. For any period, the Consolidated Net Income of
Borrowers for such period adjusted by adding back thereto amounts deducted in
computing such Consolidated Net Income in respect of (a) Interest Expense of
Borrowers, (b) taxes in respect of income and profits of Borrowers and (c)
depreciation and amortization of Borrowers.
Employee Benefit Plan. Any employee benefit plan within the
meaning of Section 3(3) of ERISA maintained or contributed to by any Borrower or
any ERISA Affiliate, or with respect to which any Borrower or any ERISA
Affiliate has actual or contingent liability, in each case other than a
Multiemployer Plan.
Environmental Laws. Any and all applicable current and future
treaties, laws, rules, regulations, codes, ordinances, orders, decrees,
judgments, injunctions, notices or binding agreements issued, promulgated or
entered into by any governmental authority, relating in any way to the
environment, preservation or reclamation of natural resources or human exposure
to or the management or Release or threatened Release of any Hazardous Material.
ERISA. The Employee Retirement Income Security Act of 1974,
as amended.
ERISA Affiliate. Any Person which is treated as a single
employer with any Borrower under Section 414 of the Code or Section 4001 ofERISA.
ERISA Reportable Event. A reportable event with respect to a
Guaranteed Pension Plan within the meaning of ss.4043 of ERISA and the
regulations promulgated thereunder as to which the requirement of notice has not
been waived.
EURIBOR. With respect to any EURIBOR Loan for any Interest
Period, EURIBOR means the EURO Interbank Offered Rate sponsored by the European
Banking Federation among 57 EURO zone banks, as determined by the Agent at
approximately 11:00 a.m. Boston time three (3) Business Days prior to the date
upon which the Interest Period is to commence, which determination by the Agent
shall, in the absence of manifest error, be conclusive. In the event that such
rate is not available at such time for any reason, the "EURIBOR" with respect to
such EURIBOR Loan for such Interest Period shall be the rate at which
EURO-denominated deposits of the equivalent of US$5,000,000 and for a maturity
comparable to such Interest Period are offered by the principal London office of
the Agent (or, if the Agent does not have such an office, such office of any
other Lender, as selected by the Agent) in immediately available funds through
the European Banking Federation at approximately 11:00 a.m., London time, three
(3) Business Days prior to the commencement of such Interest Period.
EURIBOR Loan. Loans bearing interest calculated by reference
to the EURIBOR.
EURIBOR Margin. The meaning specified in ss.2.6 (a).
Euro. Means the official currency established by the European
Banking Federation among 57 EURO zone banks.
Event of Default. The meaning specified in ss.9.1.
Facility Fee. A fee in the amount of 10 Basis Points times the
Total Commitment, which Facility Fee is due and payable to the Agent for the
ratable benefit of the Lenders on the Closing Date, in proportion to each
Lender's Commitment, and which Facility Fee is deemed to be fully earned and
non-refundable on the Closing Date.
Federal Funds Effective Rate. For any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
GAAP. Generally accepted accounting principles in the United
States of America.
Guaranteed Pension Plan. Any Employee Benefit Plan, the
benefits of which are guaranteed on termination in full or in part by the PBGC
pursuant to Title IV of ERISA.
Hazardous Materials. All explosive or radioactive substances
or wastes, hazardous or toxic substances or wastes, pollutants, solid, liquid or
gaseous wastes, including petroleum or petroleum distillates, asbestos or
asbestos-containing materials, polychlorinated biphenyls or materials or
equipment containing polychlorinated biphenyls, radon gas, infectious or medical
wastes and all other substances or wastes of any nature regulated pursuant to
any Environmental Law.
Indebtedness. All obligations, contingent and otherwise, that
in accordance with GAAP should be classified upon a Person's balance sheet as
liabilities, including: (a) all debt and similar monetary obligations, whether
direct or indirect; (b) all liabilities secured by any mortgage, pledge,
security interest, lien, charge, or other encumbrance existing on property owned
or acquired by such Person subject thereto, whether or not the liability secured
thereby shall have been assumed; (c) all obligations in respect of Capitalized
Leases; and (d) all guarantees, endorsements and other contingent obligations
whether direct or indirect in respect of indebtedness owed by others, including
any obligation to supply funds to or in any manner to invest in, directly or
indirectly, the debtor, to purchase indebtedness, or to assure the owner of
indebtedness against loss, through an agreement to purchase goods, supplies, or
services for the purpose of enabling the debtor to make payment of the
indebtedness held by such owner or otherwise, and the obligations to reimburse
the issuer in respect of any letters of credit.
Interest Expense. For any period, the aggregate amount
(determined in accordance with GAAP) of interest paid or payable during such
period by any Person in respect of all Indebtedness for borrowed money,
Capitalized Leases and the deferred purchase price of property.
Interest Payment Date. (a) As to any Base Rate Loan, the last
business day of each calendar month and any date on which such Base Rate Loan is
converted to a LIBOR Loan or a EURIBOR Loan; and (b) as to any LIBOR Loan or
EURIBOR Loan, the last day of the Interest Period relating to such LIBOR Loan or
EURIBOR Loan; provided, that in the event that such Interest Period is more than
90 days, each 90th day during such Interest Period and the last day of such
Interest Period.
Interest Period. With respect to each LIBOR Loan or EURIBOR
Loan, the period of one, two, three or six months, as selected by any Borrower
commencing on the Drawdown Date of such LIBOR Loan or EURIBOR Loan; provided
that the foregoing provisions relating to Interest Periods are subject to thefollowing:
(a) if any Interest Period would otherwise end on a
day that is not a LIBOR Business Day, that Interest Period shall be extended to
the next succeeding LIBOR Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month, in which
event such Interest Period shall end on the immediately preceding LIBOR Business
Day; and
(b) the Borrowers shall not be entitled to convert
any Loan to a LIBOR Loan or a EURIBOR Loan with an
Interest Period that would extend beyond the Maturity Date.
Investments. All expenditures made and all liabilities
incurred (contingently or otherwise), without duplication, for the acquisition
of stock or Indebtedness of, or for loans, advances, capital contributions or
transfers of property to, or in respect of any guaranties (or other commitments
as described under Indebtedness), or obligations of, any Person. In determining
the aggregate amount of Investments outstanding at any particular time: (a) the
amount of any Investment represented by a guaranty shall be taken at not less
than the principal amount of the obligations guaranteed and still outstanding;
(b) there shall be included as an Investment all interest accrued with respect
to Indebtedness constituting an Investment unless and until such interest is
paid; (c) there shall be deducted in respect of each such Investment any amount
received as a return of capital (but only by repurchase, redemption, retirement,
repayment, liquidating dividend or liquidating distribution); (d) there shall
not be deducted in respect of any Investment any amounts received as earnings on
such Investment, whether as dividends, interest or otherwise, except that
accrued interest included as provided in the foregoing clause (b) may be
deducted when paid; and (e) there shall not be deducted from the aggregate
amount of Investments any decrease in the value thereof.
Lenders. Each Person which may from time to time own a
Percentage of the Total Commitment, including BBH&Co in its capacity as a
Lender; provided, however that the term "Lender" shall not include anyParticipant.
LIBOR. With respect to any LIBOR Loan for any Interest Period,
the rate appearing on Page 3750 of the Telerate Service (or on any successor or
substitute page of such Service, or any successor to or substitute for such
Service, providing rate quotations comparable to those currently provided on
such page of such Service, as determined by the Agent from time to time for
purposes of providing quotations of interest rates applicable to Dollar deposits
in the London interbank market) at approximately 11:00 a.m., London time, two
(2) Business Days prior to the commencement of such Interest Period, as the rate
for U.S. dollar deposits with a maturity comparable to such Interest Period. In
the event that such rate is not available at such time for any reason, the
"LIBOR" with respect to such LIBOR Loan for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the Agent
(or, if the Agent does not have such an office, such office of any other Lender,
as selected by the Agent) in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two (2) Business Days prior to
the commencement of such Interest Period.
LIBOR Business Day. Any Business Day on which commercial banks
are open for international business (including dealings in Dollar deposits or in
EURO deposits) in London, England.
LIBOR Loans. Loans bearing interest calculated by reference to
the LIBOR.
LIBOR Margin. The meaning specified in ss.2.6.
Licenses. The meaning specified in ss.5.5.
Loan Documents. This Credit Agreement, the Notes, each
subordination agreement, any interest rate swap or other interest rate
protection agreements, and any other document, instrument or agreement executed
and delivered in connection herewith.
Loan Request. The meaning specified in ss.2.7.
Loans. The Term Loan and the Revolving Credit Loans.
Material Adverse Change. A deterioration since Borrowers' June
30, 1999 fiscal year end financial statements in the quality or value of the
business or assets, or in the financial condition, income or prospects of the
Borrowers on an individual or consolidated basis, whether such is the result of:
(i) general economic or weather conditions affecting one or more of the
industries in which Borrowers and/or the Subsidiaries are engaged, (ii)
difficulties in obtaining supplies and raw materials, (iii) fire, flood or other
natural calamities, (iv) environmental claims, litigation, remediation or
pollution, (v) regulatory changes, judicial decisions, war or other governmental
actions, or (vi) any other event or development whether or not related to those
enumerated herein.
Maturity Date. Five years from the Closing Date with respect
to the Term Loan and five years from the Closing Date with respect to the
the Revolving Loans, subject to extension pursuant to ss.2.4.
Moody's . Moody's Investors Service, Inc.
Multiemployer Plan. Any multiemployer plan within the meaning
of Section 3(37) of ERISA maintained or contributed to by any Borrower or any
ERISA Affiliate or with respect to which any Borrower or any ERISA Affiliate has
actual or contingent liability.
Net Income. Income (or loss), excluding extraordinary items of
income, of a Person for the period in question (taken as a cumulative whole),
after all operating expenses, reserves and other proper deductions (including
any minority interest expense), all determined in accordance with GAAP. For
purposes hereof, the Consolidated Net Income of Borrowers shall include the Net
Income of any other Person acquired prior to the date that it either becomes a
Subsidiary of Borrowers, is merged into or consolidated with Borrowers, or such
other Person's assets are assigned, directly or indirectly to Borrowers,
provided that, in the case of each of the foregoing, (i) the Net Income of such
other Person shall only be so included to the extent that such Net Income is
attributable to such other Person or to such assets as are acquired from such
other Person for the relevant period, all to the satisfaction of the Required
Lenders, and (ii) any discrepancies in accounting treatment between Borrowers
and such other Person are conformed so as to make the foregoing determination to
the satisfaction of the Required Lenders.
Notes. The Term Note and the Revolving Credit Note.
Obligations. All indebtedness, obligations and liabilities of
Borrowers to the Lenders, individually or collectively, existing on the date of
this Credit Agreement or arising thereafter, direct or indirect, joint or
several, absolute or contingent, matured or unmatured, liquidated or
unliquidated, secured or unsecured, arising by contract, operation of law or
otherwise, arising or incurred under the Loan Documents or in respect of any of
the Loans or the Notes or other instruments at any time evidencing any thereof.
Outstanding. With respect to the Loans, the aggregate unpaid
principal thereof as of any date of determination.
Participant. The meaning specified in ss.17.3.
PBGC. The Pension Benefit Guaranty Corporation created by
ss.4002 of ERISA and any successor entity or entities having similarresponsibilities.
Percentage. The meaning specified in ss.2.1(a).
Permitted Liens. The meaning specified in ss.7.2.
Person. Any individual, corporation, partnership, limited
liability company, trust, unincorporated association, joint venture,
organization, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof
Projections. Borrowers' forecasted balance sheets and
statements of income and surplus and cash flow, all prepared on a basis
consistent with Borrowers' historical financial statements, together with
appropriate supporting details and statements of underlying assumptions.
Qualified Plan. A pension plan (as defined in Section 3(2) of
ERISA) intended to be tax-qualified under Section 401(a) of the IRC which any
Borrower or any ERISA Affiliate sponsors, maintains, or to which any such Person
makes, is making, or is obligated to make, contributions, or, in the case of a
multiple-employer plan (as described in Section 4064(a) of ERISA), has made
contributions at any time during the immediately preceding period covering at
least five (5) plan years, but excluding any Multiemployer Plan.
Record. The grid attached to the Revolving Credit Note, or the
continuation of such grid, or any other similar record, including computer
records, maintained by the Agent with respect to any Revolving Credit Loan
referred to in the Revolving Credit Note.
Release. Any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing,
depositing, dispersing, emanating or migrating of any Hazardous Material in,
into, onto or through the environment.
Replacement Lender. The meaning specified in ss.17.4.
Required Lenders. Any two or more Lenders holding in the
aggregate at least sixty-six and two-thirds percent (66 2/3%) of the amounts
Outstanding on the Loans or, if no amounts are Outstanding hereunder, of the
Percentages of the Total Commitment.
Revolving Credit Loan. A revolving credit loan made pursuant
to ss.2.1 (b).
Revolving Credit Note. The meaning specified in ss.2.4.
Revolving Loan Commitment. The meaning specified in ss.2.1.
S&P. Standard & Poor's Ratings Group, a division of the
McGraw Hill Companies, Inc.
Senior Debt. All Indebtedness of a Person and its Subsidiaries
(without duplication) in respect of borrowed money, Capitalized Leases and the
deferred purchase price of property, but exclusive of Subordinated Debt.
Several Borrower(s). Any of the Borrowers listed in Schedule
4.10 hereto whose liability to the Lenders shall be several and not joint and
several to the extent provided in ss.4.10.
Subordinated Debt: (a) The existing Indebtedness of Borrowers
which is designated as "Subordinated Debt" in Schedule 5.8 attached hereto, and
(b) any other Indebtedness of Borrowers which matures in its entirety after the
Maturity Date of the Loans (as the same may be extended by the Lenders) and by
its terms (or by the terms of the instrument under which it is outstanding and
to which appropriate reference is made in the instrument evidencing such
Subordinated Debt) is made subordinate and junior in right of payment to the
Notes and to Borrowers' other obligations to the Lenders hereunder by provisions
reasonably satisfactory in form and substance to the Required Lenders and theircounsel.
Subsidiary. Any partnership, corporation, association, trust,
or other business entity of which any Borrower shall at any time own directly or
indirectly through a Subsidiary or Subsidiaries at least a majority of the
outstanding Voting Interests.
Tangible Net Worth. As of the date of any determination
thereof, the difference of: (a) Borrowers' stockholders'equity; minus (b) the
sum of: (i) all intangible assets of Borrower; and (ii) all amounts due to
Borrower from any of its Affiliates(other than any other Borrower), in each case
calculated on a Consolidated basis.
Term Loan. The term loan made in accordance with ss.2.1(c).
Term Loan Commitment. The meaning specified in ss.2.1.
Term Note. The meaning specified in ss.2.5.
Total Commitment. The sum of the Revolving Commitment and the
Term Loan Commitment.
Unfunded Benefit Liability. The excess of a Qualified Plan's or
a multiemployer Plan's benefit liabilities (as defined in Section 4001 (a)(I 6)
of ERISA) over the current value of such plan's assets, determined in accordance
with the assumptions used by the plan's actuaries for funding the plan pursuant
to Section 412 of the Code for the applicable plan year.
UroQuest Medical Corporation or UroQuest. The surviving
corporation of the statutory merger between Borrower's wholly-owned subsidiary,
Urok Acquisition Corp. and UroQuest Medical Corporation pursuant to that
Agreement and Plan of Merger among such corporations and the Borrower dated as
of June 3, 1999.
UroQuest Transaction. The transactions contemplated by that
Agreement and Plan of Merger among Urok Acquisition Corp. and UroQuest Medical
Corporation and the Borrower dated as of June 3, 1999.
Voting Interests. Stock or similar interests, of any class or
classes (however designated) the holders of which are at the time entitled, as
such holders, to vote for the election of a majority of the directors (or
persons performing similar functions) of the partnership, corporation,
association, trust or other business entity involved, whether or not the right
so to vote exists by reason of the happening of a contingency.
ss.1.2. Rules of Interpretation.
(a) A reference to any document or agreement shall
include such document or agreement as amended, modified
or supplemented from time to time in accordance with its terms and the terms of
this Credit Agreement.
(b) The singular includes the plural and the plural
includes the singular.
(c) A reference to any law includes any amendment or
modification to such law unless otherwise expresslystated.
(d) A reference to any Person includes its permitted
successors and permitted assigns.
(e) Accounting terms not otherwise defined herein
have the meanings assigned to them by GAAP applied on a
consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including"
are not limiting.
(g) Reference to a particular "ss." refers to that
section of this Credit Agreement unless otherwiseindicated.
(h) The words "herein", "hereof", "hereunder" and
words of like import shall refer to this Credit Agreement as a whole and not to
any particular section or subdivision of this Credit Agreement.
(i) Except as otherwise expressly provided herein,
all terms of an accounting or financial nature shall be construed in accordance
with GAAP, as in effect from time to time; provided that, if Borrower notifies
the Agent that Borrower requests an amendment to any provision hereof to
eliminate the effect of any change in GAAP occurring after the date
hereof or in the application thereof on the operation of such provision and
the Required Lenders agree (or if the Agent notifies Borrower that the Required
Lenders request an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted
on the basis of GAAP as in effect and applied immediately before such change
shall have become effective until such notice shall have been withdrawn or
such provision amended in accordance herewith.
ss.2. THE CREDIT FACILITIES.
ss.2. 1. Amounts and Terms of the Facilities.
(a) Commitments. The Borrower wishes to
establish for the benefit of the Borrowers (i) a revolving credit facility with
the Lenders in an aggregate principal amount at any one time outstanding not
in excess of $30,000,000 (as such amount may be reduced from time to time
pursuant to ss.2.3) and (ii) a term loan facility in the maximum initial
principal amount of $30,000,000 as further described in
ss.2.1(c) . Each Lender is severally willing to fund its Percentage of
Commitment of such revolving credit and term loan facilities on behalf of the
Borrowers, subject to the terms and conditions hereafter set forth, in the
aggregate maximum amounts at any one time outstanding set forth opposite each
Lender's name and in the respective percentages set forth opposite each Lender's
name which shall be applicable to such revolving credit facility and such term
loan facility hereunder (hereinafter referred to as such Lender's "Percentage").
Each Lender's obligation to make Revolving Credit Loans, to fund the Term Loan
and to purchase interests in the Loans in accordance with this ss.2.1(b) and
ss.2.1(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including: (A) any setoff, counterclaim, recoupment, defense or
other right which such Lender may have against the Agent, Borrowers or any other
Person for any reason whatsoever arising other than under the Loan Documents or
applicable law, (B) the occurrence or continuance of any Event of Default or any
event which, with the giving of notice or passage of time or both would
constitute an Event of Default, but only if the Required Lenders have agreed not
to terminate the Borrowers' right to request Loans hereunder, (C) any inability
of Borrowers to satisfy the conditions precedent to borrowing set forth in this
Credit Agreement on the date upon which such interest is to be purchased, which
conditions have been waived by the Required Lenders, or by all of the Lenders,
in the case of conditions precedent which may only be waived by all of the
Lenders pursuant to ss.25, or (D) any other circumstance, happening or event
whatsoever which the Agent, the Required Lenders or all of the Lenders (as
applicable under this Credit Agreement) has determined shall not affect the
Borrowers' right to request Loans under this Credit Agreement, whether or not
similar to any of the foregoing. If any Lender does not make available to the
Agent the amount required pursuant to ss.2.1(b) or ss.2.1(c), the Agent shall be
entitled to recover such amount on demand from such Lender, together with
interest thereon for each day from the date of nonpayment until such amount is
paid in full (the "Non-payment Period") at a rate equal to the overnight federal
funds rate for the Non-payment Period plus the applicable LIBOR or EURIBOR
Margin, as set forth in ss.2.6(a).
Revolving Term Loan Percentage of Lender Commitment Commitment Commitment
BBH&Co $ 7,500,000 $ 7,500,000 25.0%
FLEET $ 7,500,000 $ 7,500,000 25.0
CITIZENS $ 7,500,000 $ 7,500,000 25.0
BNH $ 7,500,000 $ 7,500,000 25.0 TOTAL $30,000,000 $30,000,000 100.00%
(b) Revolving Loans. Subject to the terms and conditions set
forth in this Credit Agreement, each Lender hereby agrees to fund its Percentage
of the Revolving Loan Commitment in favor of Borrowers in the individual
principal amount set forth above. Each Lender agrees to lend to Borrowers, and
Borrowers may borrow, repay, and reborrow from time to time from the Closing
Date up to but not including the Maturity Date, upon notice by the requesting
Borrower to the Agent given in accordance with ss.2.7, such sums as are
requested by such requesting Borrower up to a maximum aggregate principal amount
outstanding (after giving effect to all amounts requested) at any one time equal
to such Lender's Percentage of the Available Revolving Commitment; provided;
however, that the proceeds of any and all borrowings and reborrowings hereunder
shall be used solely for the purposes described in ss.5.16. All Revolving Credit
Loans shall be made as LIBOR Loans, EURIBOR Loans or Base Rate Loans, at the
requesting Borrower's option, subject to the provisions of this Credit Agreement
relative to LIBOR and EURIBOR Loans. Base Rate Loans may be converted to LIBOR
Loans or EURIBOR Loans; and LIBOR Loans and EURIBOR Loans may be continued or
converted to Base Rate Loans under the circumstances, and subject to the
conditions, specified in ss.2.8. Each request for a Revolving Credit Loan
hereunder shall constitute a representation and warranty by Borrowers that the
conditions set forth in ss.10 and ss.11, in the case of the initial Revolving
Credit Loans to be made on the Closing Date, and ss.11, in the case of all other
Revolving Credit Loans, have been satisfied on the date of such request.
(c) The Term Loan. On the Closing Date each of the Lenders
shall severally lend to the Borrower such Lender's Percentage of the Term Loan
Commitment in accordance with a written borrowing request from the Borrower
pursuant to ss.2.7. Substantially all of the proceeds of the Term Loan
Commitment shall be used by the Borrower only in connection with the UroQuest
Transaction, although up to five (5%) percent of the proceeds may be used to pay
off existing revolving credit obligations of the Borrowers (the "Permitted Term
Loan Uses"). The Term Loan may consist of one or more LIBOR Loans, EURIBOR Loans
or Base Rate Loans, at Borrowers' option, but in the absence of an election by
Borrowers shall be Base Rate Loans. Base Rate Loans may be converted to LIBOR
Loans or EURIBOR Loans; and LIBOR Loans and EURIBOR Loans may be continued or
converted to Base Rate Loans under the circumstances, and subject to the
conditions, specified in ss.2.8. Each request for a LIBOR Loan or EURIBOR Loan
hereunder shall constitute a representation and warranty by Borrowers that the
conditions set forth in ss.10 and ss.11, in the case of the initial Loans to be
made on the Closing Date, and ss.11, in the case of all other Loans, have been
satisfied on the date of such request.
ss.2.2. Fees.
(a) Commitment Fee. The Borrowers agree to pay to the Agent
for the ratable account of each Lender, on each date that Borrower delivers to
the Agent a Compliance Certificate pursuant to ss.2.6(a) and, in the case of
extension pursuant to ss.2.4, on the Maturity Date, a commitment fee (the
"Commitment Fee") calculated at the applicable Commitment Commission (as
determined from the chart in ss.2.6) on the daily average unused portion of such
Lender's portion of the Available Revolving Commitment during the immediately
preceding fiscal quarter of Borrowers (adjusted as appropriate for any reduction
or termination of any portion of the Revolving Loan Commitment during the
immediately preceding fiscal quarter or portion thereof). The Commitment Fee
shall be computed on the basis of the actual number of days elapsed in a year of
360 days and shall be payable in arrears.
(b) Agent's Fees. The Borrowers agree to pay to the Agent, for
the Agent's own account, such other fees as Borrowers and the Agent have
heretofore agreed upon or may hereafter agree upon in writing.
(c) Facility Fee. On the Closing Date, the Borrowers shall pay
to the Agent for the ratable account of each of the Lenders the Facility Fee.
ss.2.3. Reduction of Commitments. Subject to the terms and conditions of
ss.3, Borrowers shall have the right at any time and from time to time upon
three (3) Business Days' prior written notice to the Agent (which shall in turn
give prompt written notice to each Lender) to reduce by $1,000,000 or a multiple
of $1,000,000 in excess thereof or terminate entirely any portion of the
Revolving Loan Commitment, pro rata in accordance with each Lender's Percentage,
whereupon the Revolving Loan Commitment shall be reduced accordingly or, as the
case may be, terminated. Upon the effective date of any such reduction or
termination, the Borrowers shall pay to the Agent for the ratable account of
each Lender the full amount of any Commitment Fee payable pursuant to ss.2.2(a)
then accrued on the amount of the reduction. No reduction of the Revolving Loan
Commitment may be reinstated and no prepayment of the Term Loan may be
reinstated or reborrowed.
ss.2.4. Revolving Credit Notes. The Revolving Credit Loans made by the
Lenders hereunder shall be evidenced by promissory notes of Borrowers in
substantially the form of Exhibit B-1 attached hereto (collectively, the
"Revolving Credit Note"), dated as of the Closing Date and completed with
appropriate insertions. The Revolving Credit Note shall be payable to the order
of each Lender in principal amounts equal to such Lender's Percentage of the
Revolving Loan Commitment, plus interest accrued thereon, as set forth below.
Borrowers irrevocably authorize the Lenders to make or cause to be made, at or
about the time of the Drawdown Date of any Revolving Credit Loan or at the time
of receipt of any payment of principal or interest on the Revolving Credit Note,
an appropriate notation on its Record or elsewhere in accordance with the
Lenders' customary procedures reflecting the making of such Revolving Credit
Loan or (as the case may be) the receipt of such payment and the respective
pro-rata allocations to each Lender in accordance with its respective
Percentage. The Lenders shall record the outstanding amount of the Revolving
Credit Loans on the Record or elsewhere in accordance with the Lenders'
customary procedures as prima facie evidence of the principal amount thereof
owing and unpaid to the Lenders, but the failure to record, or any error in so
recording, any such amount on the Record or elsewhere in accordance with the
Lenders' customary procedures shall not limit or otherwise affect the
obligations of the Borrowers hereunder or under the Revolving Credit Note to
make payments of principal of or interest on the Revolving Credit Note when due.
The Revolving Credit Note shall be due and payable on the Maturity Date,
provided that the Maturity Date may, with the approval of all of the Lenders, be
extended annually thereafter for each of the next two (2) twelve-month periods
following the Maturity Date, as follows. If the Borrowers wish to extend the
Maturity Date for such one year periods, the Borrowers shall so notify the Agent
in writing at least one hundred twenty (120) days prior to the scheduled
Maturity Date (as such may have been previously extended). The Agent shall
promptly communicate such extension request in writing to each of the Lenders
who shall advise the Agent in writing no later than ninety (90) days from their
receipt of such notice from the Agent whether such Lender elects to agree to
such extension request. No Lender shall be deemed to have agreed to such
extension of the Maturity Date unless it has consented thereto in writing.
ss.2.5. Term Notes. The Term Loan shall be evidenced by promissory
notes in the form attached hereto as Exhibit B-2 (collectively, the "Term
Note"), payable to the order of each of the Lenders, dated as of the Closing
Date and in the aggregate principal amount of $30,000,000.
ss.2.6. Interest on Loans/Principal Repayment.
(a) Borrowers shall deliver to the Lenders on the Closing Date
and on or before the 45th day immediately following the end of each fiscal
quarter of Borrowers, or, as the case may be, ninety (90) days following the end
of each fiscal year, a Compliance Certificate as described in ss.6.2(f) setting
forth, among other covenant compliance calculations, the ratio of (i) the
Consolidated Senior Debt of Borrower and its Subsidiaries for the immediately
preceding fiscal quarter-end to (ii) Consolidated EBITDA and its Subsidiaries
for the four (4) consecutive quarters ending on such fiscal quarter-end (the
"Debt Coverage Ratio"). Loans shall bear interest at a rate per annum equal to
the LIBOR, EURIBOR or Base Rate, as the case may be, plus the applicable margin
set forth below based on the Debt Coverage Ratio (which margin is referred to,
in the case of Base Rate Loans, as the "Base Rate Margin" and, in the case of
LIBOR Loans or EURIBOR Loans, as the "LIBOR Margin" or "EURIBOR Margin"
respectively, as applicable). Subject to subparagraph (b) below, each change in
the applicable margin based on a change in the Debt Coverage Ratio shall be
effective, with respect to all Loans outstanding on or after the date of
delivery of a Compliance Certificate, from and including the date of delivery of
such certificate until the date immediately preceding the next date of delivery
of a Compliance Certificate indicating another such change. In the case of LIBOR
and EURIBOR Loans, the effective margin calculations shall be made as of such
effective date, with any payment adjustments to be made on the next Interest
Payment Date.
Debt Coverage Base Rate Margin LIBOR and EURIBOR Margin Commitment Commission
1.5< 0 100 20
1.5 up to 2.0 0 112.5 25
2.0 up to 2.5 0 125.0 30
(b) During any period when an Event of Default shall have
occurred and be continuing or in the event that Borrowers fail to provide the
Agent with the Compliance Certificate for any fiscal quarter of Borrowers on the
due date thereof (which Event of Default or failure to provide a Compliance
Certificate is not waived or extended as provided herein), then until such Event
of Default is cured or waived or such certificate is provided, as the case may
be, the applicable margin over the Base Rate shall be 200 Basis Points and the
applicable margin over the LIBOR shall be 350 Basis Points and over the EURIBOR
shall be 350 Basis Points.
(c) Interest on each Base Rate Loan, LIBOR Loan and EURIBOR
Loan shall be computed on the basis of the actual number of days elapsed in a
year of 360 days, in each case without duplication of any day in successive
Interest Periods.
(d) The Borrowers agree to pay to the Agent, for the pro rata
benefit of the Lenders, interest on each Loan in arrears on each Interest
Payment Date with respect thereto. Any adjustments to interest payments based
upon the calculations provided in ss.2.6(a) shall be made on the Interest
Payment Date following the effective date of such adjustment.
(e) The Borrowers agree to pay to the Agent, for the pro-rata
benefit of the Lenders, principal on the Revolving Loans on the Maturity Date,
and agree to pay to the Agent for the pro-rata benefit of the Lenders, principal
on the Term Loan in twenty consecutive quarterly payments, each in the amount of
one twentieth of the initial face amount of the Term Loan commencing with the
last business day of March 2000, with any remaining unpaid balance due on the
Maturity Date.
ss.2.7. Requests for Loans. All requests for Loan under this Credit
Agreement shall be made by the Borrower on behalf of the Borrowers or any of
them. The Borrower shall give to the Agent written notice in the form of Exhibit
C hereto (or telephonic notice confirmed in a writing in the form of Exhibit C
hereto) of the Loans requested from the Lenders hereunder (a "Loan Request"), no
later than 12:00 noon, Boston time, (i) no less than one (1) Business Day prior
to the proposed Drawdown Date of any Base Rate Loan and (ii) no less than two
(2) LIBOR Business Days prior to the proposed Drawdown Date of any LIBOR Loans,
and no less than three (3) LIBOR Business Days prior to the proposed Drawdown
Date of any EURIBOR Loans. Each such notice shall be given and signed by the
Borrower as agent for the requesting Borrower and shall specify (i) the
aggregate principal amount of the Loans requested from the Lenders (and in any
event not in excess of the unused portion of the Available Revolving
Commitment), (ii) whether such Loans are to be LIBOR Loans, EURIBOR Loans or
Base Rate Loans, (iii) the proposed Drawdown Date of such Loans, (iv) in the
case of LIBOR Loans and EURIBOR Loans, the Interest Period for such Loans, (v)
the purpose or purposes to which the proceeds of such Loans shall be applied,
and (vi) such other matters as are set forth on Exhibit C. Each Loan Request
shall be in a minimum aggregate amount of $1,000,000 or a higher integral
multiple of $500,000. The Agent shall then promptly notify each Lender in
writing of its respective Percentage of the Loans requested by the end of the
Business Day of the Loan Request. The Agent and the Borrowers shall conclusively
be entitled to rely upon such Loan Request from the Borrower and shall have no
liability to any of the Borrowers for acting in accordance with any such Loan
Request. Each Lender shall make its respective Percentage of the Loans available
to the Agent for disbursement to the Borrowers as provided in ss.2.9.
ss.2.8. Conversion and Continuation.
The Borrower, as agent for the Borrowers, shall have the right at any
time upon prior irrevocable notice to the Agent (a) not later than 12:00 noon,
Boston time, one (1) Business Day prior to the date of conversion, to convert
any LIBOR Loan or EURIBOR Loan into a Base Rate Loan, (b) not later than 12:00
noon, Boston time, two (2) LIBOR Business Days prior to conversion or
continuation, to convert any Loan into a LIBOR Loan or to continue any LIBOR
Loan for an additional Interest Period, and (c) not later than 12:00 noon,
Boston time, three (3) LIBOR Business Days prior to conversion or continuation,
to convert any Loan into a EURIBOR Loan or to continue any EURIBOR Loan as a
EURIBOR Loan for an additional Interest Period, subject in each case to thefollowing:
(i) each conversion or continuation shall be made pro rata among the
Lenders in accordance with the respective principal amounts of the Loans
comprising the converted or continued Loans;
(ii) if less than all the outstanding principal amount of any Loans
shall be converted or continued, then the resulting Loans shall satisfy the
limitations specified in the fourth to last sentence of ss.2.7 regarding the
principal amount of Loans;
(iii) each conversion shall be effected by the Agent by recording for
the account of each Lender the new Loan of such Lender resulting from such
conversion and reducing the Loan (or portion thereof) of such Lender being
converted by an equivalent principal amount;
(iv) accrued interest on a LIBOR Loan or EURIBOR Loan (or portion
thereof being converted or continued) shall be paid by the Borrowers at the time
of conversion or continuation;
(v) LIBOR Loans and EURIBOR Loans may only be converted at a time that
is the end of the Interest Period applicable thereto;
(vi) any portion of a Loan maturing or required to be repaid in less
than one month may not be converted into or continued as a LIBOR Loan or EURIBORLoan;
(vii) any portion of a LIBOR Loan or EURIBOR Loan that cannot be
converted into or continued as a LIBOR Loan or EURIBOR Loan (as applicable) by
reason of the immediately preceding clause shall be automatically converted at
the end of the Interest Period in effect for such Loan into a Base Rate Loan;and
(viii) no Event of Default and no event which, with the giving of
notice or passage of time or both, would constitute an Event of Default has
occurred and is continuing; provided, however, that the condition set forth in
this clause (viii) shall not be applicable to the conversion of any LIBOR Loan
or EURIBOR Loan into a Base Rate Loan pursuant to ss.2.8.
Each notice pursuant to this ss.2.8 shall be irrevocable and shall
refer to this Credit Agreement and specify (i) the identity (i.e. whether the
election is for the Term Loan or the Revolving Loans) and amount of the Loan
that such Borrower requests be converted or continued, (ii) whether such Loan is
to be converted to or continued as a LIBOR Loan, EURIBOR Loan or a Base Rate
Loan, (iii) if such notice requests a conversion, the date of such conversion
(which shall be a LIBOR Business Day) and (iv) if such Loan is to be converted
to or continued as a LIBOR Loan or EURIBOR Loan, the Interest Period with
respect thereto. If no Interest Period is specified in any such notice with
respect to any conversion to or continuation as a LIBOR Loan or EURIBOR Loan,
the requesting Borrower shall be deemed to have selected an Interest Period of
one month's duration. The Agent shall promptly advise the other Lenders of any
notice given pursuant to this ss.2.8 and of each Lender's portion of any
converted or continued Loans. If the requesting Borrower shall not have given
notice in accordance with this ss.2.8 to continue any LIBOR Loans or EURIBOR
Loans (as applicable) into a subsequent Interest Period (and shall not otherwise
have given notice in accordance with this ss.2.8 to convert such LIBOR Loans or
EURIBOR Loans), such LIBOR Loans and/or EURIBOR Loans shall, at the end of the
Interest Period applicable thereto (unless repaid pursuant to the terms hereof),
automatically renew as a LIBOR or EURIBOR Loan for an Interest Period of 30
days. In no event shall the Interest Period of any Loan extend beyond any
Maturity Date.
ss.2.9. Funds for Loans. Subject to the satisfaction of the other
conditions set forth herein, to the extent applicable (including the conditions
set forth in ss.2.7), each Lender will make available to the Agent on the
proposed date of any Loan by wire transfer of immediately available funds not
later than 1:00 P.M., Boston time, the aggregate amount of its Percentage of
such Loans requested by Borrower, and the Agent shall credit the aggregate
amount so received to the respective accounts designated by the requesting
Borrower or, if such Borrower does not designate any account, to such Borrower's
regular deposit account with the Agent, if any. The Lenders shall make such
funds available to the Agent in U.S. Dollars unless the requesting Borrower has
requested that any Loan be funded in EUROs , in which case the Lenders shall
make such funds available to the Agent in EUROs, or as otherwise agreed between
the Agent and any Lender. In no event shall the aggregate of all dollar
denominated Loans plus all EURO denominated loans made to Borrowers exceed the
respective dollar denominated Revolving Commitment and Term Loan Commitment
amounts set forth in ss.2.1(a).
ss.3. PREPAYMENT OF THE LOANS, RESERVES.
ss.3.1. Voluntary Prepayments. Borrowers shall have the right, at their
election, to prepay the outstanding amount of any Loans, as a whole or in part,
at any time without penalty or premium, except as provided in ss.4.8. Each
partial prepayment of the Term Loan shall be applied by the Lenders to the Term
Loan in the inverse order of maturity of payments due under the Term Loan.
Borrowers shall give irrevocable written notice to the Agent, no later than
12:00 noon, Boston time, one Business Day prior to any proposed prepayment of
Base Rate Loans pursuant to this ss.3 and no later than 11:00 a.m., Boston time,
and two (2) LIBOR Business Days or three (3) LIBOR Business Days, prior to any
proposed prepayment of LIBOR Loans or EURIBOR Loans, respectively, pursuant to
this ss.3, in each case specifying the proposed date of prepayment of the Loans
and the principal amount and accrued interest to be prepaid, and the Agent shall
promptly give notice thereof to each Lender. Each such prepayment of the Base
Rate Loans shall be in a minimum amount of the lesser of (i) $1,000,000, or the
equivalent amount of EUROs in the case of EURO denominated Loans and (ii) the
aggregate amount outstanding under the Notes being prepaid, and shall be
accompanied by the payment of accrued interest on the principal prepaid to the
date of such prepayment.
ss.3.2. Mandatory Prepayments. If at any time the outstanding principal
amount of all Revolving Loans exceeds (or, in the case of any notice of
reduction of the Revolving Loan Commitment pursuant to ss.2.3, would exceed) the
Revolving Loan Commitment, the Borrowers will immediately prepay the applicable
Note or Notes, subject to ss.4.8, in an amount necessary to cause the
outstanding principal amount of all Loans not to exceed the Revolving LoanCommitment.
ss.4. CERTAIN GENERAL PROVISIONS.
ss.4.1. Funds for Payments.
(a) All payments of principal, interest, fees and any other
amounts due hereunder or under any of the other Loan Documents shall be made to
the Agent for the ratable account of the Lenders at 40 Water Street, Boston,
Massachusetts 02109, or at such other location as the Agent may from time to
time designate. All payments on all U.S. Dollar denominated Loans shall be made
in Dollars constituting immediately available funds and all payments on EURO
denominated Loans shall be made in EUROs constituting immediately available
funds .
(b) All payments by the Borrowers hereunder and under any of the
other Loan Documents shall be made to the Agent without setoff or counterclaim
and free and clear of and without deduction for any taxes, levies, imports,
duties, charges, fees, deductions, withholdings, compulsory loans, restrictions
or conditions of any nature now imposed or levied by any jurisdiction or any
political subdivision thereof or taxing or other authority therein unless any
such Borrower is compelled by law to make such deduction or withholding or if
the taxes are based upon or measured by the income or profits of the Lenders,
including profits or receipts with respect to the Loans. If any such obligation
is imposed upon any Borrower with respect to any amount payable by it hereunder
or under any of the other Loan Documents, the Borrowers will pay to the Agent
for the ratable account of the Lenders on the date on which such amount is due
and payable hereunder or under such other Loan Document, such additional amount
in Dollars as shall be necessary to enable the Lenders to receive the same net
amount which the Lenders would have received on such due date had no such
obligation been imposed upon Borrowers. The Borrowers will deliver promptly to
the Agent certificates or other valid vouchers for all taxes or other charges
deducted from or paid with respect to payments made by the Borrowers hereunder
or under such other Loan Document. In the event any Lender receives a refund of
any taxes or other amounts for which it has received payment from Borrowers
pursuant to this ss.4. 1 (b), such Lender shall, within 30 days from the date of
such receipt, pay the amount of such refund to Borrowers but only to the extent
of payments made by Borrowers pursuant to this ss.4.1(b) and net of all costs
and expenses of the Agent and such Lender relating thereto and without interest
(other than interest, if any, paid by the relevant government authority with
respect to such refund); provided, however, that the Borrowers upon request of
the Agent or any Lender, agree to repay the amount paid to Borrowers to the
Agent or such Lender if the Agent or such Lender is required to repay such
refund to such governmental authority. The Agent shall pay to the Lenders their
pro-rata shares of all payments received by the Agent prior to Noon Boston time
by the end of such Business Day, and shall pay to the Lenders their pro-rata
shares of all payments received by the Agent after Noon, Boston time, by no
later than the end of the following Business Day. Any such payments from the
Borrowers received by the Agent and distributed by the Agent to the Lenders
shall be subject to immediate repayment by the Lenders to the Agent to the
extent that such payment: (i) is dishonored or otherwise not finally collected,
or (ii) must be returned, disgorged, or paid to any court or representative of
the Borrowers in any judicial or bankruptcy or similar proceeding by the Agent.
ss.4.2. Computations. All computations of interest on the LIBOR Loans,
EURIBOR Loans and Base Rate Loans and of commitment or other fees shall be based
on a 360-day year and paid for the actual number of days elapsed. Except as
otherwise provided in the definition of the term "Interest Period" with respect
to LIBOR Loans and EURIBOR Loans, whenever a payment hereunder or under any of
the other Loan Documents becomes due on a day that is not a Business Day, the
due date for such payment shall be extended to the next succeeding Business Day,
and interest shall accrue during such extension.
ss.4.3. Inability to Determine LIBOR or EURIBOR. In the event, prior to
the commencement of any Interest Period relating to any LIBOR Loan or any
EURIBOR Loan, the Agent shall determine that adequate and reasonable methods do
not exist in the marketplace for ascertaining the LIBOR or EURIBOR that would
otherwise determine the rate of interest to be applicable to any LIBOR Loan or
EURIBOR Loan during any Interest Period, the Agent shall give notice of such
determination (which shall be conclusive and binding on Borrowers) to the
Borrowers. In such event (a) any Loan Request with respect to LIBOR Loans and/or
EURIBOR Loans shall be automatically withdrawn and shall be deemed a request for
Base Rate Loans, (b) each LIBOR Loan and each EURIBOR Loan will automatically,
on the last day of the then current Interest Period thereof, become a Base Rate
Loan, and (c) the obligations of the Lenders to make LIBOR Loans or EURIBOR
Loans shall be suspended until the Agent determines that the circumstances
giving rise to such suspension no longer exist, whereupon the Agent shall so
notify the Borrower.
ss.4.4. Illegality. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or change in the
interpretation or application thereof shall make it unlawful for any Lender (the
"Non-LIBOR Lender(s)") to make or maintain LIBOR Loans or EURIBOR Loans, such
Lender shall forthwith give notice of such circumstances to the Agent who shall
in turn notify the Borrower and thereupon (a) the commitment of such Lender to
make LIBOR Loans and/or EURIBOR Loans shall forthwith be suspended and (b) the
Loans then outstanding as LIBOR Loans and EURIBOR Loans from such Lender, if
any, shall be converted automatically to Base Rate Loans on the last day of each
Interest Period applicable to such LIBOR Loans or EURIBOR Loans (as
applicable)or within such earlier period as may be required by law. The
Borrowers hereby agree promptly to pay the Agent on behalf of such Lender, upon
demand by such Lender accompanied by a certificate setting forth in reasonable
detail such costs, any additional amounts necessary to compensate such Lender
for any costs incurred by such Lender in making any conversion in accordance
with this ss.4.4, including any Breakage Costs and other interest or fees
payable by such Lender to lenders of funds obtained by it in order to make or
maintain its LIBOR Loans and/or EURIBOR Loans hereunder; provided, that to the
extent permitted by applicable law, each Lender shall maintain each LIBOR Loan
and EURIBOR Loan until the last day of an Interest Period. The foregoing
assessment of Breakage Costs to the Borrower with respect to the Loan(s) from
the Non-LIBOR Lender(s) shall not apply if LIBOR or EURIBOR Loans are generally
available from other bank financing sources other than the Non-LIBOR Lender(s)
at the time tha
