Pre-Effective Amendment to Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1/A Mks Instruments, Inc. 90 439K
2: EX-3.1 Restated Articles of Organization 36 92K
3: EX-3.2 Amended and Restated Articles or Organization 16 46K
4: EX-3.4 Amended and Restated Bylaws 16 59K
7: EX-10.11 Loan Agreement Dated November 11, 1993 101 293K
8: EX-10.13 Loan Agreement Dated February 23, 1996 94 300K
9: EX-10.17 Comprehensive Supplier Agreement 121 315K
10: EX-10.18 Management Incentive Program 2 12K
5: EX-10.4 1999 Employee Stock Purchase Plan 6 28K
6: EX-10.9 Loan Agreement Dated October 31, 1995 47 154K
11: EX-23.2 Consent of Pricewaterhousecoopers LLP 1 7K
12: EX-27 Financial Data Schedule 1 7K
EXHIBIT 10.11
LOAN AGREEMENT
This Loan Agreement (the "Agreement") is entered into as of the 1st
day of November, 1993, by and between The First National Bank of Boston
("Lender") and MKS Instruments, Inc., a Massachusetts corporation ("Borrower").
PREMISES:
WHEREAS, the Borrower has requested that the Lender make loans to it;
and
WHEREAS, the Lender is willing to lend funds to the Borrower on the
terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy and receipt of which are hereby
acknowledged, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. In addition to terms defined elsewhere in this
Agreement, the following terms shall have the meanings indicated, which meanings
shall be equally applicable to both the singular and plural forms of such terms:
1.1.1. "Advance" shall mean the drawing down by the Borrower of a
Base Rate Loan, a LIBOR Loan or a Money Market Rate Loan on any given Advance
Date.
1.1.2. "Advance Date" shall mean the date as of which an Advance
is consummated.
1.1.3. "Affiliate" of any Person shall mean any other Person
which, directly or indirectly, controls, or is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" of any
Person shall mean the power, directly or indirectly, either to (i) vote 10% or
more of the securities having ordinary voting power for the election of
directors of such Person or (ii) direct the management and policies of such
Person, whether by contract or otherwise. As to the Borrower, the term
"Affiliate" shall include, without limitation, any partnership or joint venture
of which the Borrower or any Affiliate of the Borrower is a general partner or
is a limited partner with more than a ten percent (10%) interest, and any
director or executive officer of the Borrower.
1.1.4. "Base Rate" shall mean the rate of interest announced by
the Lender at its head office from time to time as its "Base Rate".
1.1.5. "Base Rate Loan" shall mean an Advance that is specified as
such in the Notice of Borrowing with respect to such Advance and that bears
interest as provided in Section 2.4.1 or a portion of the Term Loan as to which
the Borrower elects to pay interest at the Base Rate as provided in Section 3.2.
1.1.6. "Borrowing" shall mean the incurrence of one or more
Advances on a given date.
1.1.7. "Business Day" shall mean a day on which commercial banks
are required to be open for business in Boston, Massachusetts.
1.1.8. "Cash Flow Ratio" shall have the meaning set forth in
Section 8.7(c).
1.1.9. "Closing Date" shall mean the date of this Agreement.
1.1.10. "Compliance Certificate" shall have the meaning set forth
in Section 7.1(c).
1.1.11. "Consolidated Debt Service" shall mean for any period the
sum (without duplication) of Interest Expense, the interest portion of Financing
Lease Obligations and required principal payments on long-term debt of the
Borrower and its Subsidiaries, determined on a consolidated basis.
1.1.12. "Consolidated Indebtedness" shall mean the Indebtedness of
the Borrower and its Subsidiaries, determined on a consolidated basis.
1.1.13. "Consolidated Net Income" shall mean for any period the
net income (or loss) for such period (before extraordinary items and excluding
the net income of any business entity that is not a Subsidiary in which the
Borrower or one of its Subsidiaries has an ownership interest unless such net
income shall have actually been received by such company in the form of cash
distributions) of the Borrower and its Subsidiaries after deducting all
operating expenses, depreciation and amortization, Interest Expense, the
interest portion of Financing Lease Obligations, all taxes in respect of income
and profits paid or payable (including accrued Sub S distributions required to
make shareholder tax payments) and all other proper deductions, all determined
on a consolidated basis.
1.1.14. "Consolidated Operating Cash Flow" shall mean for any
period, the net income (or loss) for such period (before extraordinary items and
excluding the net income of any business entity that is not a Subsidiary in
which the Borrower or one of its Subsidiaries has an ownership interest unless
such net income shall have actually been received by such company in the form of
cash distributions) of the
-2-
Borrower and its Subsidiaries before deducting Interest Expense and taxes and
after restoring thereto depreciation of real and personal property and leasehold
improvements and amortization and after deducting cash taxes paid, Sub S
distributions required to make shareholder tax payments, and capital
expenditures incurred.
1.1.15. "Consolidated Tangible Net Worth" shall mean, at any time,
net stockholders' equity of the Borrower and its Subsidiaries determined in
accordance with generally accepted accounting principles including the book
amount of all minority interests in MKS International, Inc. but excluding the
book amount of all minority interests in other Affiliates and any foreign
exchange translation adjustment, with no upward adjustments due to a
reevaluation of assets (other than any such upward adjustment as may be required
under generally accepted accounting principles in connection with the
acquisition by the Borrower or any Subsidiary of another company or entity)
minus the following items (without duplication of deductions) appearing on the
balance sheet of the Borrower and its Subsidiaries:
(a) the book amount of all assets (including, without limitation,
goodwill, patents, trademarks, copyrights, organizational expense and
unamortized debt discount) that would be treated as intangibles under generally
accepted accounting principles;
(b) treasury stock; and
(c) any write-up in the book amount of any asset or Investment
subsequent to the Closing Date, resulting from a reevaluation or reappraisal
thereof from the amount entered in accordance with generally accepted accounting
principles by the Borrower or any Subsidiary on its books with respect to its
acquisition of the asset or Investment.
1.1.16. "Costs" shall have the meaning set forth in Section 10.4.
1.1.17. "Debt-to-Net Worth Ratio" shall have the meaning set forth
in Section 8.7(b).
1.1.18. "Default" shall mean any event that, with the lapse of
time, the giving of notice, or both, would become an Event of Default hereunder.
1.1.19. "Event of Default" shall have the meaning set forth in
Section 9.1 hereof.
1.1.20. "Financing Lease" shall mean any lease of the Borrower or
a Subsidiary, as lessee, that is shown or is required to be shown in accordance
with
-3-
generally accepted accounting principles as a liability on the balance sheet of
the lessee thereunder.
1.1.21. "Financing Lease Obligation" shall mean for any period the
monetary obligation of the lessee under a Financing Lease. The amount of a
Financing Lease Obligation at any date is the amount at which the lessee's
liability under the Financing Lease would be required to be shown on its balance
sheet at such date.
1.1.22. "Hazardous Substances" shall mean any hazardous waste, as
defined by 42 U.S.C. Section 6903(5), any hazardous substances, as defined by 42
U.S.C. Section 9601(14), any pollutant or contaminant, as defined by 42 U.S.C.
Section 9601(33), or any toxic substance, oil or hazardous materials or other
chemicals or substances regulated by any laws or regulations relating to the
discharge of air pollutants, water pollutants, or processed wastewater.
1.1.23. "Indebtedness" shall mean, for any Person, (a) all
obligations of such Person that in accordance with generally accepted accounting
principles would be reflected on the balance sheet of such Person as a
liability, (b) all obligations of any other Person the payment or collection of
which such Person has guaranteed (except by reason of endorsement for collection
in the ordinary course of business) or in respect of which such Person is
liable, contingently or otherwise, including, without limitation, liable by way
of agreement to purchase, to provide funds for payment, to supply funds to or
otherwise to invest in such other Person, or otherwise to assure a creditor
against loss, (c) all obligations of any other Person for borrowed money or for
the deferred purchase price of property or services secured by (or for which the
holder of such indebtedness has an existing right, contingent or otherwise, to
be secured by) any mortgage, or other encumbrance upon or in property
(including, without limitation, accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the payment
of such indebtedness or obligations, and (d) Financing Lease Obligations of such
Person.
1.1.24. "Interest Expense" shall mean for any period the aggregate
amount of interest recorded, in accordance with generally accepted accounting
principles, on the financial statements for that period by the Borrower and its
Subsidiaries in respect of Consolidated Indebtedness incurred for borrowed
money.
1.1.25. "Interest Period" shall mean the period designated by the
Borrower as such in the Notice of Borrowing with respect to any LIBOR Loan or
Money Market Rate Loan pursuant to and subject to the limitations set forth in
Section 2.5 or in the Interest Rate Change Notice for any portion of the Term
Loan pursuant to and subject to the limitations set forth in Section 3.2.
-4-
1.1.26. "Interest Rate Change Notice" shall have the meaning set
forth in Section 3.2.
1.1.27. "Interest Rate Determination Date" shall mean the third
Business Day prior to the first day of the related Interest Period for a LIBOR
Loan and the first day of the related Interest Period for a Money Market Rate
Loan or the determination of the Long Term Funds Rate.
1.1.28. "Interim Maturity Date" shall mean the last day of any
Interest Period.
1.1.29. "Investments" shall have the meaning set forth in Section
8.4.
1.1.30. "LIBOR Loan" shall mean an Advance that is specified as
such in the Notice of Borrowing with respect to such Advance and that bears
interest at the rate provided in Section 2.4.2. or a portion of the Term Loan as
to which the Borrower elects to pay interest using the LIBOR Rate as provided in
Section 3.2.
1.1.31. "LIBOR Rate" shall mean for any Interest Rate
Determination Date, the rate obtained by dividing (i) the quotation offered by
the Lender in the interbank Eurodollar market for U.S. dollar deposits of
amounts in immediately available funds comparable to the principal amount of the
LIBOR Loan or the portion of the Term Loan for which the LIBOR Rate is being
determined with a maturity comparable to the Interest Period for which such
LIBOR Rate will apply as of approximately noon (Boston time) three Business Days
prior to the commencement of such Interest Period by (ii) a percentage equal to
100% minus the stated maximum rate of all reserves required to be maintained
against "Eurocurrency liabilities" as specified in Regulation D (or against any
other category of liabilities that includes deposits by reference to which the
interest rate on LIBOR Loans is determined) as applicable on such date to any
member bank of the Federal Reserve System.
1.1.32. "Licenses" shall have the meaning set forth in Section
5.8.
1.1.33. "Lien" shall mean any interest in property securing an
obligation owed to, or a claim by, a Person other than the owner of the
property, whether the interest is based on common law, statute or contract
(including the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale or trust receipt or a lease, consignment or bailment
for security purposes). For the purposes of this Agreement, the Borrower or a
Subsidiary shall be deemed to be the owner of any property that it has acquired
or holds subject to a Financing Lease or a conditional sale agreement or other
arrangement pursuant to which title to the property has been retained by or
vested in some other Person for security purposes, and such retention or vesting
shall be deemed to be a Lien.
-5-
1.1.34. "Loan Documents" shall mean each of this Agreement, the
Notes, the Mortgage and any other document or instrument executed by the
Borrower in favor of the Lender in connection with the transactions contemplated
hereby.
1.1.35. "Long Term Funds Loan" shall mean the portion of the Term
Loan as to which the Borrower elects to pay interest using the Long Term Funds
Rate as provided in Section 3.2.
1.1.36. "Long Term Funds Rate" shall mean for any Interest Rate
Determination Date, the rate of interest quoted by the Lender in Boston on such
date in its sole discretion (it being understood that the Lender is under no
obligation to quote such rates) to the Borrower as the fixed rate of interest at
which it is willing to make a Long Term Funds Loan in the amount equal to the
portion of the Term Loan for which this rate is requested by the Borrower with a
maturity equal to the Interest Period requested.
1.1.37. "Money Market Rate" shall mean for any Interest Rate
Determination Date, the rate of interest quoted by the Lender in Boston on such
date in its sole discretion (it being understood that the Lender is under no
obligation to quote such rates) to the Borrower as the fixed rate of interest at
which it is willing to make a Money Market Rate Loan in the amount and for the
Interest Period requested by the Borrower.
1.1.38. "Money Market Rate Loan" shall mean an Advance that is
specified as such in the Notice of Borrowing with respect to such Advance and
that bears interest at the rate provided in Section 2.4.3 hereof.
1.1.39. "Notes" shall mean the Revolving Credit Note and the Term
Note.
1.1.40. "Mortgage" shall have the meaning set forth in Section
6.2.
1.1.41. "Notice of Borrowing" shall have the meaning set forth in
Section 2.2.1.
1.1.42. "Obligations" shall mean, without limitation, any and all
liabilities, debts, and obligations of the Borrower to the Lender, of each and
every kind, nature and description, under this Agreement, any other Loan
Document, the Foreign Exchange Agreement, and any interest rate swap agreement,
whether now existing or hereafter incurred. "Obligations" also means, without
limitation, any and all obligations of the Borrower to act or to refrain from
acting in accordance with the terms, provisions and covenants of this Agreement
or of any other Loan Document.
-6-
1.1.43. "Permitted Liens" shall have the meaning set forth in
Section 8.2.
1.1.44. "Person" shall mean any natural person, corporation,
unincorporated organization, trust, joint-stock company, joint venture,
association, company, partnership or government, or any agency or political
subdivision of any government.
1.1.45. "Property" shall have the meaning set forth in Section
6.2(f).
1.1.46. "Revolver Termination Date" shall mean June 30, 1994 or
any subsequent anniversary thereof if the Revolving Credit Loan shall have been
renewed by the Lender.
1.1.47. "Revolving Credit Loan" shall mean the demand
discretionary revolving credit loan in an amount up to the amount of $7,000,000
extended or to be extended by the Lender to the Borrower on the terms and
conditions set forth herein.
1.1.48. "Revolving Credit Note" shall have the meaning set forth
in Section 2.3.
1.1.49. "Revolving Loan Account" shall mean the account on the
books of the Lender in the name of the Borrower in which the following shall be
recorded: Advances made by the Lender to and for the account of the Borrower
pursuant to Section 2 of this Agreement; all other charges, expenses and other
items properly chargeable to the Borrower with respect to such Advances; all
Costs with respect to such Advances; all payments made by the Borrower on
account of indebtedness evidenced by the Revolving Credit Note; and other
appropriate debits and credits.
1.1.50. "Subsidiary" shall mean any Person of which the Borrower
at the time owns, directly or indirectly, through another Subsidiary or
otherwise, 50% or more of the equity interests.
1.1.51. "Term Loan" shall have the meaning set forth in Section
3.1.
1.1.52. "Term Loan Maturity Date" shall mean the seventh
anniversary of the date of this Agreement.
1.1.53. "Term Note" shall have the meaning set forth in Section
3.1.
1.1.54. "Term Loan Account" shall mean the account on the books of
the Lender in the name of the Borrower in which the following shall be recorded:
the principal outstanding and interest accrued under the Term Loan; all Costs
with
-7-
respect to the Term Loan; all payments made by the Borrower on account of
indebtedness evidenced by the Term Note; and other appropriate debits and
credits.
1.2 Accounting Terms. Accounting terms not specifically defined in this
Agreement shall have the meanings given to them under generally accepted
accounting principles.
1.3 Other Definitional Provisions. The words "hereof," "herein" and
"hereunder," and words of similar import when used in this Agreement shall refer
to this Agreement as a whole and not any particular provision of this Agreement.
Any Article, Section, Exhibit or Schedule references are to this Agreement
unless otherwise specified.
ARTICLE II
REVOLVING CREDIT LOAN
2.1 Revolving Credit. Subject to the terms and conditions of this
Agreement, the Lender hereby agrees to make Advances from time to time to the
Borrower during the period from the date hereof to the Revolver Termination Date
(or such earlier date on which the Lender shall have demanded payment of the
Revolving Credit Note) in an aggregate outstanding amount not to exceed at any
time $7,000,000. The Lender shall have the absolute discretion to make such
Advances as it deems appropriate and to demand re-payment of Advances at any
time. Each Advance shall, at the option of the Borrower, be a Base Rate Loan, a
LIBOR Loan or a Money Market Rate Loan provided, however, that no LIBOR Loan or
Money Market Rate Loan shall be made at any time in a principal amount of less
than $1,000,000.
2.2 Notice of Borrowing.
2.2.1. Whenever the Borrower desires to obtain a LIBOR Loan or a
Money Market Rate Loan hereunder, it may request that the Lender provide quotes
as of any specified Interest Rate Determination Date as to the LIBOR Rate and/or
the Money Market Rate for any or all Interest Periods, and the Lender shall
promptly provide such quotes. The Borrower shall give the Lender prior
telecopied or telephone notice (given not later than 10:00 a.m. (Boston time))
on the day of any Borrowing with respect to a Base Rate Loan or a Money Market
Rate Loan and at least three Business Days prior to, the day of any Borrowing
with respect to a LIBOR Loan. Each such notice (each a "Notice of Borrowing")
shall specify the principal amount of each Advance to be made, the date of the
Borrowing (which shall be a Business Day), whether each Advance being made is to
be initially maintained as a Base Rate Loan, a LIBOR Loan or a Money Market Rate
Loan and, in the case of a LIBOR Loan or Money Market Rate Loan, the initial
Interest Period applicable
-8-
thereto. If such notice is given by telephone, it shall be immediately confirmed
in writing. No more than one Base Rate Loan shall be outstanding at any time,
but the Borrower may increase the principal amount of any Base Rate Loan at any
time by giving a Notice of Borrowing as set forth above.
2.2.2. Upon the Interim Maturity Date of any LIBOR Loan or Money
Market Rate Loan, unless the Borrower (i) shall have given the Lender a Notice
of Borrowing in accordance with Section 2.2.1 requesting that a new LIBOR Loan
or Money Market Rate Loan be made on such Interim Maturity Date or (ii) shall
have repaid such LIBOR Loan or Money Market Rate Loan on such Interim Maturity
Date, the Borrower shall be deemed to have requested that the Lender make a Base
Rate Loan to the Borrower on such Interim Maturity Date in an aggregate
principal amount equal to the aggregate principal amount of the LIBOR Loan or
Money Market Rate Loan maturing on such Interim Maturity Date.
2.3 Revolving Loan Account. The Advances made by the Lender from time
to time to the Borrower under this Agreement shall be evidenced by the Revolving
Credit Note in the form of Exhibit A hereto (the "Revolving Credit Note"). The
Advances and the amounts of all payments on the Revolving Credit Note shall be
recorded by the Lender in the Revolving Loan Account of the Borrower. The debit
balance of the Revolving Loan Account shall represent the amount of the
Borrower's indebtedness to the Lender from time to time by reason of Advances
and other appropriate charges hereunder. All statements regarding the Revolving
Loan Account shall be deemed to be accurate absent manifest error or unless
objected to by the Borrower within 30 days after receipt. The Borrower agrees to
review each such statement promptly after receipt and to bring any errors or
discrepancies to the Lender's attention promptly.
2.4 Interest.
2.4.1. The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Base Rate Loan from the date the proceeds
thereof are made available to the Borrower until maturity (whether by
acceleration, voluntary prepayment or otherwise) at a rate per annum that shall
be the Base Rate in effect from time to time.
2.4.2. The Borrower agrees to pay interest in respect of the
unpaid principal amount of each LIBOR Loan from the date the proceeds thereof
are made available to the Borrower until maturity (whether by acceleration,
voluntary prepayment or otherwise) at a rate per annum equal to the LIBOR Rate
plus 1.25%.
2.4.3. The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Money Market Rate Loan from the date the
proceeds thereof are made available to the Borrower until maturity (whether by
acceleration,
-9-
voluntary prepayment or otherwise) at a rate per annum equal to the Money Market
Rate.
2.4.4. Overdue principal and (to the extent permitted by law)
overdue interest in respect of each Base Rate Loan, each LIBOR Loan and each
Money Market Rate Loan (to the extent not converted into a Base Rate Loan) shall
bear interest, payable on demand, after as well as before judgment, at a rate
per annum equal to the Base Rate in effect from time to time plus 3% per annum.
2.4.5. Interest shall accrue from and including the date of any
Advance and shall be payable by the Borrower monthly in arrears on the last day
of each month and on any prepayment (on the amount prepaid), at maturity
(whether by acceleration, voluntary prepayment or otherwise), and after such
maturity, on demand. Interest shall be calculated on the basis of actual days
elapsed and a 360-day year.
2.5 Interest Periods. At the time it gives any Notice of Borrowing with
respect to a LIBOR Loan or a Money Market Rate Loan, the Borrower shall elect
the Interest Period applicable to the related Advance, which Interest Period
shall, at the option of the Borrower, be a period of 30, 60, 90, 120, 150 or 180
days (as to a LIBOR Loan) or any period up to 90 days (as to a Money Market Rate
Loan). Notwithstanding anything to the contrary contained herein:
(i) if any Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month at the end
of such Interest Period, such Interest Period shall end on the
last Business Day of such calendar month;
(ii) if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on
the next succeeding Business Day; provided that if any Interest
Period would otherwise expire on the day that is not a Business
Day but is a day of the month after which no further Business Day
occurs in such month, such Interest Period shall expire on the
next preceding Business Day;
(iii) no Interest Period shall extend beyond the Revolver
Termination Date.
2.6 Termination of Existing Loans. On the Closing Date the letter
agreement between the Borrower and the Lender dated as of July 15, 1992, as
amended, shall terminate and be of no further force and effect.
-10-
ARTICLE III
TERM LOAN
3.1 Refinancing. The Lender shall refinance its existing loans to the
Borrower evidenced by Floating Rate Mortgage Notes dated May 20, 1987, January
6, 1988 and January 30, 1989, under which a total of $9,550,090.75 in principal
plus accrued but unpaid interest is currently outstanding by converting such
Loans into a seven-year term loan (the "Term Loan") in the principal amount of
$10,000,000. The Lender shall advance the difference between $10,000,000 and
$9,432,124.08 to the Borrower on the Closing Date. The Term Loan shall be
evidenced by a term note (the "Term Note") payable to the Bank in the form of
Exhibit B hereto. Amortization of the Term Note shall be calculated on the basis
of a 15-year schedule of level monthly payments of principal with the entire
unpaid principal balance and all accrued and unpaid interest absolutely due and
payable on the Maturity Date.
3.2 Interest.
3.2.1. The Borrower agrees to pay interest in respect of the
unpaid principal amount of the Term Loan from the date of this Agreement until
paid in full as follows. The Term Loan shall bear interest at the Base Rate
unless the Borrower desires to pay interest on all or a portion of the Term Loan
at one of the following rates:
(i) During any period in which the Borrower maintains a Cash
Flow Ratio in excess of 1.35 to 1 and a Debt-to-Net Worth Ratio
not in excess of 1.35 to 1:
(a) the LIBOR Rate Plus 1.75% or
(b) the Long Term Funds Rate plus 1.75%.
(ii) During any period in which the Borrower maintains a Cash
Flow Ratio of 1.35 to 1 or less or a Debt-to-Net Worth Ratio-of
1.35 to 1 or more:
(a) the LIBOR Rate plus 2.10% or
(b) the Long Term Funds Rate plus 2.10%.
3.2.2. Whenever the Borrower desires to obtain an interest rate
other than the Base Rate, it may request that the Lender provide quotes as of
any specified Interest Rate Determination Date as to the LIBOR Rate and/or the
Long Term Funds
-11-
Rate for any or all Interest Periods, and the Lender shall promptly provide such
quotes. The Borrower shall give the Lender prior telecopied or telephone notice
(given not later than 10:00 a.m. (Boston time)) on the day the Interest Period
is to begin with respect to use of the Long Term Funds Rate and at least three
Business Days prior to the day the Interest Period is to begin with respect to
use of the LIBOR Rate. Each such notice (each an "Interest Rate Change Notice")
shall specify the desired interest rate, the amount of the Term Loan to which
such interest rate shall apply and the initial Interest Period applicable
thereto. If such notice is given by telephone, it shall be immediately confirmed
in writing.
3.2.3. Upon the Interim Maturity Date of any LIBOR Loan or Long
Term Funds Loan, unless the Borrower shall have given the Lender an Interest
Rate Change Notice in accordance with Section 3.2.2 requesting a new LIBOR Loan
or Long Term Funds Loan be made on such Interim Maturity Date, the Borrower
shall be deemed to have elected to pay interest on such amount of the Term Loan
at the Base Rate.
3.2.4. At the time the Borrower gives any Interest Rate Change
Notice, the Borrower shall elect the Interest Period for which the interest rate
elected shall apply, which Interest Period shall, at the option of the Borrower,
be a period of 30, 60, 90, 120, 150 or 180 days (as to a LIBOR Loan) or any
period (as to a Long Term Funds Loan). Notwithstanding anything to the contrary
contained herein, the provisions set forth in subparagraphs (i) - (iii) of
Section 2.5 shall apply to the determination of an Interest Period.
3.3 Term Loan Account. The principal and the amounts of all payments on
the Term Note shall be recorded by the Lender in the Term Loan Account of the
Borrower. All statements regarding the Term Loan Account shall be deemed to be
accurate absent manifest error or unless objected to by the Borrower within 30
days after receipt. The Borrower agrees to review each such statement promptly
after receipt and to bring any errors or discrepancies to the Lender's attention
promptly.
ARTICLE IV
ADDITIONAL TERMS
4.1 Payments.
4.1.1. The Borrower shall have the right to prepay the Notes, in
whole at any time or in part from time to time, without premium or penalty,
provided that, no Money Market Loan may be prepaid and, except as set forth in
Section 4.3, no other Advance, either in whole or in part, may be prepaid on the
Advance Date of such Advance and no portion of the Term Loan may be prepaid on
the first day of an Interest Period with respect thereto. The Borrower shall
give notice (by telex or
-12-
telecopier, or by telephone (confirmed in writing promptly thereafter)) to the
Lender of each proposed pre-payment hereunder prior to 10:00 a.m. (Boston time),
(x) with respect to Base Rate Loans and Long Term Funds Loans, upon the Business
Day of the proposed prepayment and (y) with respect to LIBOR Loans, at least
three Business Days prior to the Business Day of the proposed prepayment, which
notice in each case shall specify the proposed prepayment date (which shall be a
Business Day), the aggregate principal amount of the proposed prepayment and
which Advances or portions of the Term Loan, as the case may be, are to be
prepaid. LIBOR Loans and Long Term Funds Loans that are voluntarily prepaid
before the last day of the applicable Interest Period shall be subject to the
additional compensation requirements set forth in Sections 4.3 and 4.4, and each
prepayment of a LIBOR Loan or a Long Term Funds Loan shall be in an aggregate
principal amount of not less than the total principal amount outstanding at such
time under such Loan. If at any time the outstanding principal amount of the
Advances exceeds $7,000,000, the Borrower will immediately prepay the Advances
by the amount of such excess.
4.1.2. All payments of principal and interest due under the Notes
(including prepayments), and any other amounts owing to the Lender under this
Agreement shall be made by the Borrower not later than 3:00 p.m., Boston time,
on the day due in lawful money of the United States of America to the Lender at
its Boston, Massachusetts office in immediately available funds. The Borrower
hereby authorizes the Lender to charge such payments as they become due, if not
otherwise paid by the Borrower, to any account of the Borrower with the Lender
as the Lender may elect.
4.1.3. Whenever any payment to be made hereunder or under any
other Loan Document shall be stated to be due on a day that is not a Business
Day, such payment may be made on the next succeeding Business Day, and such
extension of time shall in such case be included in computing interest or other
fees or charges provided for under this Agreement or any other Loan Document;
provided, however, that with respect to LIBOR Loans, if the next succeeding
Business Day falls in another calendar month, such payment shall be made on the
next preceding Business Day.
4.1.4. All payments made by the Borrower on each Note shall be
applied by the Lender (a) first, to the payment of Costs with respect to such
Note, (b) second, to the payment of accrued and unpaid interest on such Note, in
such order as the Borrower shall direct, until all such accrued interest has
been paid, and (c) third, to the payment of the unpaid principal amount of such
Note in such order as the Borrower shall direct.
4.2 Capital Adequacy.
4.2.1. If, after the date of this Agreement, the Lender shall have
reasonably determined in good faith that the adoption or effectiveness after the
date
-13-
hereof of any applicable law, rule or regulation regarding capital adequacy, or
any change therein, or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by the Lender
with any request or directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or comparable agency, has
or would have the effect of materially reducing the rate of return on the
Lender's capital or assets as a consequence of its commitments or obligations
hereunder to a level below that which the Lender could have achieved but for
such adoption, effectiveness, change or compliance (taking into consideration
the Lender's then current policies with respect to capital adequacy), then from
time to time, subject to Section 4.2.2, within 15 days after demand by the
Lender the Borrower shall pay to the Lender such additional amount or amounts as
will compensate the Lender for such reduction (after the Lender shall have
allocated the same fairly and equitably among all of its customers or any class
generally affected thereby).
4.2.2. The Lender will notify the Borrower of any event occurring
after the date of this Agreement that will entitle the Lender to any additional
payment under this Section 4.2 as promptly as practicable and shall be entitled
to such payment (a) in the case of a Base Rate Loan, only for costs incurred
from and after the date that the Lender gives such notice, and (b) in the case
of a Money Market Rate Loan, LIBOR Loan or Long Term Funds Loan, only for costs
incurred in connection with Loans made pursuant to a Notice of Borrowing or
Interest Rate Change Notice issued after the date that the Lender gives such
notice. The Lender will furnish to the Borrower with such notice a certificate
signed by an officer thereof certifying that the Lender is entitled to payment
under this Section 4.2 and setting forth the basis (in reasonable detail) and
the amount of each request by the Lender for any additional payment pursuant to
this Section 4.2.
4.3 Special Provisions Governing LIBOR Loans. Notwithstanding any
other provisions of this Agreement, the following provisions shall govern with
respect to LIBOR Loans as to the matters covered:
4.3.1. Increased Costs, Illegality. etc.
(a) In the event that the Lender shall have determined (which
determination shall, if made in good faith and absent manifest error, be final,
conclusive and binding upon all parties):
(i) on any Interest Rate Determination Date, that by reason
of any changes arising after the date of this Agreement affecting
the interbank Eurodollar market, adequate and fair means do not
exist for ascertaining the applicable interest rate on the basis
provided for in the definition of LIBOR Rate; or
-14-
(ii) at any time during any Interest Period, that the Lender
shall incur increased costs or reductions in the amounts received
or receivable hereunder with respect to a LIBOR Loan by reason of
(x) any change since the Interest Rate Determination Date for the
Interest Period in question in any applicable law or governmental
rule, regulation, guideline or order (or any interpretation
thereof and including the introduction of any new law or
governmental rule, regulation, guideline or order) (such as, for
example but not limited to, a change in official reserve
requirements, but excluding reserve requirements that have been
included in calculating the LIBOR Rate for such Interest Period)
and/or (y) other circumstances affecting the Lender, the interbank
Eurodollar market or the position of the Lender in the relevant
market; or
(iii) at any time, that the making or continuance of any
LIBOR Loan has become unlawful by compliance by the Lender in good
faith with any law, governmental rule, regulation, guideline or
order, or has become impracticable as a result of a contingency
occurring after the date of this Agreement;
then and in any such event, the Lender shall promptly after making such
determination give notice (by telephone confirmed in writing) to the Borrower of
such determination. Thereafter (x) in the case of clause (i) above, any Notice
of Borrowing given by the Borrower with respect to a LIBOR Loan that has not yet
been incurred shall be deemed rescinded by the Borrower and LIBOR Loans shall no
longer be available until such time as the Lender notifies the Borrower that the
circumstances giving rise to such notice no longer exist or that,
notwithstanding such circumstances, LIBOR Loans will again be made available
hereunder, (y) in the case of clause (ii), the Borrower shall pay to the Lender,
upon written demand therefor (but only with respect to any LIBOR Loan made
pursuant to a Notice of Borrowing issued after the giving of the written notice
that LIBOR Loans will again be made available hereunder referred to in clause
(x) above), such additional amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as the Lender in its sole
discretion shall determine) as shall be required to compensate the tender for
such increased cost or reduction in amount received (a written notice as to
additional amounts owed the Lender, showing the basis for such calculation
thereof, shall be given to the Borrower by the Lender and shall, absent manifest
error, be final, conclusive and binding upon the parties hereto), and (z) in the
case of clause (iii), the Borrower shall take one of the actions specified in
Section 4.3.1(b) as promptly as possible and, in any event, within the time
period required by law.
(b) At any time that any LIBOR Loan is affected by the
circumstances described in Section 4.3.1(a)(ii) or (iii), the Borrower may (and
in the case of a LIBOR
-15-
Loan affected pursuant to Section 4.3.1(a)(iii) shall) either (x) if the
affected LIBOR Loan is then being made, withdraw the related Notice of Borrowing
by giving the Lender telephonic (confirmed in writing) notice thereof on the
same date that the Borrower was notified by the Lender pursuant to Section
4.3.1(a), or (y) if the affected LIBOR Loans are then outstanding, upon at least
three Business Days' written notice to the Lender, require the Lender to convert
each LIBOR Loan so affected into a Base Rate Loan.
4.3.2. Compensation. The Borrower shall compensate the Lender,
upon its written request (which request shall set forth the basis for requesting
such amounts), for all reasonable losses, expenses and liabilities (including,
without limitation, any interest paid by the Lender to lenders of funds borrowed
by it to make or carry its LIBOR Loans to the extent not recovered by the Lender
in connection with the re-employment of such funds) and any loss sustained by
the Lender in connection with the re-employment of the funds (including, without
limitation, a return on such re-employment that would result in the Lender's
receiving less than it would have received had such LIBOR Loan remained
outstanding until the last day of the Interest Period applicable to such LIBOR
Loan) that the Lender may sustain: (i) if for any reason (other than a default
by or negligence of the Lender) a LIBOR Loan is not advanced on a date specified
therefor in a Notice of Borrowing (unless timely withdrawn pursuant to Section
4.3.1(b)(x) above), (ii) if any payment or prepayment of any LIBOR Loans occurs
for any reason whatsoever (including, without limitation, by reason of Section
4.3.1(b)) on a date that is prior to the last day of an Interest Period
applicable thereto, (iii) if any prepayment of any of its LIBOR Loans is not
made on the date specified in a notice of payment given by the Borrower pursuant
to Section 4.1 or (iv) as a consequence of an election made by the Borrower
pursuant to Section 4.3.1(b)(y).
4.4 Special Provisions Governing Money Market Rate Loans and Long
Term Funds Loans. Notwithstanding other provisions of this Agreement, the
following provisions shall govern with respect to Money Market Rate Loans and
Long Term Funds Loans as to the matters covered:
4.4.1. Costs of Lender. In the event that at any time the Money
Market Rate or the Long Term Funds Rate does not reflect the cost to the Lender
of the maintenance of reserves in respect of any Money Market Rate Loan or Long
Term Funds Loan, as the case may be (including, without limitation, any
marginal, emergency, supplemental, special or other reserves but excluding
reserves required under Regulation D to the extent included in the computation
of such interest rate), then upon delivery of a certificate signed by an officer
of the Lender certifying that the Lender is entitled to payment under this
Section 4.4.1 and showing the basis in reasonable detail for the Lender's
request, the Borrower shall pay to the Lender with respect to any Money Market
Rate Loan or Long Term Funds Loan made pursuant to a Notice of Borrowing or
Interest Rate Change Notice, as the case may be, issued
-16-
after the date of delivery of such certificate additional interest in such
amounts as shall be required to compensate the Lender for the additional cost as
determined by the Lender with respect to such Money Market Rate Loan or Long
Term Funds Loan. A certificate of the Lender as to any amount payable pursuant
to this paragraph shall, absent manifest error, be final, conclusive and binding
upon all parties hereto.
4.4.2. Compensation. The Borrower shall compensate the Lender,
upon written request by the Lender (which request shall set forth the basis for
requesting such compensation), for all reasonable losses, expenses and
liabilities (including, without limitation, any loss, expense or liability
incurred by reason of the liquidation or reemployment of deposits or other funds
required by the Lender to fund its Money Market Rate Loans and/or Long Term
Funds Loans to the Borrower), which the Lender may sustain with respect to Money
Market Rate Loans and/or Long Term Funds Loans to the Borrower: (i) if for any
reason (other than a default by the Lender) a borrowing of any Money Market Rate
Loan or Long Term Funds Loan does not occur on a date specified therefor in a
Notice of Borrowing or Interest Rate Change Notice, as the case may be (whether
or not withdrawn by the Borrower or because an Event of Default is then in
existence), (ii) if any repayment or conversion of any Money Market Rate Loan or
Long Term Funds Loan occurs on a date that is prior to the last day of the
Interest Period applicable to that Loan, or (iii) if any prepayment of any Long
Term Funds Loan is not made on any date specified in a notice of prepayment
given by the Borrower.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
In order to induce the Lender to enter into this Agreement and to make
the loans provided for herein, the Borrower makes the following representations
and warranties to the Lender, all of which shall survive the execution and
delivery of this Agreement and the Notes.
5.1 Organization, Existence and Power. The Borrower is duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation. The Borrower has the corporate power
necessary to conduct the business in which it is engaged, to own the properties
owned by it and to consummate the transactions contemplated by the Loan
Documents. The Borrower is duly qualified or licensed to transact business in
all places where the nature of the properties owned by it or the business
conducted by it makes such qualification necessary and where the failure to be
so qualified or licensed would have a material adverse effect upon the
consolidated financial condition, assets or results of operations of the
Borrower and its Subsidiaries taken as a whole.
-17-
5.2 Authorization of Loan Documents; Binding Effect. The execution and
delivery of this Agreement and the other Loan Documents and the performance of
the transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate actions of the Borrower. Each of the Loan Documents
constitutes the legal, valid and binding obligation of the Borrower that is a
party thereto, enforceable against the Borrower in accordance with its terms.
5.3 Authority. The Borrower has all requisite corporate power and
authority to execute, deliver and perform its obligations under the Loan
Documents. Neither the authorization, execution, delivery, or performance by the
Borrower of this Agreement or of any other Loan Document nor the performance of
the transactions contemplated hereby or thereby violates or will violate any
provision of the corporate charter or by-laws of the Borrower, or does or will,
with the passage of time or the giving of notice or both, result in a breach of
or a default under, or require any consent under or result in the creation of
any lien, charge or encumbrance upon any property or assets of the Borrower
pursuant to, any material instrument, agreement or other document to which the
Borrower is a party or by which the Borrower or any of its properties may be
bound or affected.
5.4 Capital Structure. The number of shares of stock of which the
Borrower's authorized capital stock consists, the par value per share of such
stock, the number of shares of such stock that have been issued and are
outstanding and the number of shares that have been issued and are held by the
Borrower as treasury shares are all disclosed on the Disclosure Schedule. Set
forth in the Disclosure Schedule is a complete and accurate list of all
Subsidiaries of the Borrower. The Disclosure Schedule indicates the jurisdiction
of incorporation or organization of each of the Subsidiaries, the number of
shares or units of each class of capital stock or other equity of the
Subsidiaries authorized, and the number of such shares or units outstanding and
the percentage of each class of such equity owned (directly or indirectly) by
the Borrower. No shares of stock or units of equity interests of the Borrower or
any of its Subsidiaries are covered by outstanding options, warrants, rights of
conversion or purchase or similar rights granted or created by the Borrower
except as set forth on the Disclosure Schedule. All the outstanding capital
stock of the Borrower has been validly issued and is fully paid and
nonassessable. All the stock or units of equity interests of the Borrower's
Subsidiaries that are owned by the Borrower or any Subsidiary of the Borrower
are owned free and clear of all mortgages, deeds of trust, pledges, liens,
security interests and other charges or encumbrances.
5.5 Financial Condition. The audited consolidated balance sheet of the
Borrower and its Subsidiaries dated as of December 31, 1992 and the audited
statements of operations, cash flows and stockholders' equity of the Borrower
and its Subsidiaries for and as of the end of the period ending on that date,
including any related notes (the "Audited Financial Statements"), and the
unaudited consolidated
-18-
financial statements of the Borrower and its Subsidiaries (the "Unaudited
Financial Statements") dated as of July 3, 1993 (the "Balance Sheet Date"), all
of which (collectively, the "Financial Statements") were heretofore furnished to
the Lender, are true, correct and complete in all material respects and fairly
present in all material respects the financial condition of the Borrower and its
Subsidiaries as of the date of each such statement and have been prepared in
accordance with generally accepted accounting principles (subject, in the case
of the Unaudited Financial Statements, to the addition of notes and to normal
year-end adjustments that individually and in the aggregate are not expected to
be material) consistently applied throughout the periods involved. Other than as
reflected in such Financial Statements and except for liabilities incurred in
the ordinary course of business since the date thereof, the Borrower has no
Indebtedness that is or would be material to the financial condition of the
Borrower, nor any material unrealized or unanticipated losses from any
commitments. Since the Balance Sheet Date there has been no material adverse
change in the consolidated financial condition (as set forth in the Audited
Financial Statements) or results of operations of the Borrower and its
Subsidiaries taken as a whole.
5.6 Pending Litigation. Except as set forth in the Disclosure Schedule,
there are no suits or proceedings pending or, to the knowledge of the Borrower,
threatened before any court or arbitration tribunal or by or before any
governmental or regulatory authority, commission, bureau or agency or public
regulatory body against the Borrower that if adversely determined would have a
material adverse effect on the consolidated financial condition, assets or
results of operations of the Borrower and its Subsidiaries taken as a whole.
5.7 Certain Agreements; Material Contracts. The Borrower is not a party
to any agreement or instrument or subject to any court order or governmental
decree adversely affecting in any material respect the business, properties,
assets or financial condition of the Borrower and its Subsidiaries taken as a
whole.
5.8 Authorization, Etc. All authorizations, consents, approvals,
accreditations, certifications and licenses required under the corporate charter
or by-laws of the Borrower or under applicable law or regulation for the
ownership or operation of the property owned or operated by the Borrower or the
conduct of any business or activity conducted by the Borrower, including
provision of services for which reimbursement is made by third party payors,
other than authorizations, consents, approvals, accreditations, certifications
or licenses the failure to obtain and/or maintain which would not have a
material adverse effect on the consolidated financial condition, assets or
results of operations of the Borrower and its Subsidiaries taken as a whole
(collectively, "Licenses") have been duly issued and are in full force and
effect. The Borrower has fulfilled and performed all of its material obligations
with respect to such Licenses (to the extent now required to be fulfilled or
performed) and no event has occurred that would allow, with or without the
passage
-19-
of time or the giving of notice or both, revocation or termination thereof or
would result in any other material impairment of the rights of the holder of any
such License. All filings or registrations with any governmental or regulatory
authority required for the conduct of the business or activity conducted by the
Borrower have been made, other than any such filings or registrations as to
which the failure to make same would not have a material adverse effect on the
consolidated financial condition, assets or results of operations of the
Borrower and its Subsidiaries, taken as a whole. Except as expressly
contemplated hereby, no approval, consent or authorization of or filing or
registration with any governmental commission, bureau or other regulatory
authority or agency is required with respect to the execution, delivery or
performance of any of the Loan Documents.
5.9 No Violation. The execution, delivery and performance by the
Borrower of the Loan Documents do not and will not violate any provision of law
or regulation applicable to the Borrower, or any writ, order or decree of any
court or governmental or regulatory authority or agency applicable to the
Borrower. The Borrower is not in default, nor has any event occurred that with
the passage of time or the giving of notice, or both, would constitute a
default, in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any agreement, instrument or
other document to which the Borrower is a party, which default would have a
material adverse effect on the consolidated assets, financial condition or
results of operations of the Borrower and its Subsidiaries, taken as a whole.
The Borrower is not in violation of any applicable federal, state or local law,
rule or regulation or any writ, order or decree, which violation would have a
material adverse effect on the consolidated assets, financial condition or
results of operations of the Borrower and its Subsidiaries, taken as a whole.
Except as otherwise set forth in the Disclosure Schedule under the caption
"Litigation," the Borrower has not received notice of any violation of any
federal, state or local environmental law, rule or regulation or assertion that
the Borrower has any obligation to clean up or contribute to the cost of
cleaning up any waste or pollutants.
5.10 Payment of Taxes. The Borrower and its Subsidiaries have properly
prepared and filed or caused to be properly prepared and filed all federal tax
returns and all material state and local tax returns that are required to be
filed and have paid all taxes shown thereon to be due and all other taxes,
assessments and governmental charges or levies imposed upon the Borrower and its
Subsidiaries, their income or profits or any properties belonging to the
Borrower. No extensions of any statute of limitations are in effect with respect
to any tax liability of the Borrower or any Subsidiary of the Borrower. No
deficiency assessment or proposed adjustment of the federal income taxes of the
Borrower or any Subsidiary of the Borrower is pending and the Borrower has no
knowledge of any proposed liability of a substantial nature for any tax to be
imposed upon any of its properties or assets.
-20-
5.11 Transactions With Affiliates, Officers, Directors and 1%
Shareholders. Except as set forth on the Disclosure Schedule, the Borrower has
no Indebtedness to or material contractual arrangement or understanding with any
Affiliate, officer or director of the Borrower, nor any shareholder holding of
record at least 1% of the equity of the Borrower nor, to the best of the
Borrower's knowledge (without independent inquiry), any of their respective
relatives.
5.12 ERISA. The Borrower has never established or maintained any funded
employee pension benefit plan as defined under Section 3(2)(A) of the Employee
Retirement Income Security Act of 1974, as amended and in effect on the date
hereof ("ERISA"), other than the plans described on the Disclosure Schedule. No
employee benefit plan established or maintained, or to which contributions have
been made, by the Borrower or any Subsidiary of the Borrower that is subject to
Part 3 of Title I-B of ERISA, had an accumulated funding deficiency (as such
term is defined in Section 302 of ERISA) as of the last day of the fiscal year
of such plan ended most recently prior to the date hereof, or would have had an
accumulated funding deficiency (as so defined) on such day if such year were the
first year of the plan to which Part 3 of Title I-B of ERISA applied. No
material liability to the Pension Benefit Guaranty Corporation has been incurred
or is expected by the Borrower to be incurred by it or any Subsidiary of the
Borrower with respect to any such plan or otherwise. The execution, delivery and
performance of this Agreement and the other Loan Documents will not involve on
the part of the Borrower any prohibited transaction within the meaning of ERISA
or Section 4975 of the Internal Revenue Code. The Borrower has never maintained,
contributed to or been obligated to contribute to any "multiemployer plan," as
defined in Section 3(37) of ERISA. The Borrower has never incurred any
"withdrawal liability" calculated under Section 4211 of ERISA, and there has
been no event or circumstance that would cause it to incur any such liability.
5.13 Ownership of Properties; Liens. The Borrower has good and
marketable title to all its material properties and assets, real and personal,
that are now carried on its books, including, without limitation, those
reflected in the Financial Statements (except those disposed of in the ordinary
course since the date thereof), and has valid leasehold interests in its
properties and assets, real and personal, which it purports to lease, subject in
either case to no mortgage, security interest, pledge, lien, charge, encumbrance
or title retention or other security agreement or arrangement of any nature
whatsoever other than Permitted Liens and those specified in the Disclosure
Schedule and other than those granted, or to be granted, to the Lender
hereunder. All of the Borrower's material leasehold interests and material
obligations with respect to real property are described on the Disclosure
Schedule.
5.14 Employment Matters. Except as set forth on the Disclosure
Schedule, there are no material grievances, disputes or controversies pending
or, to the knowledge of the Borrower, threatened between the Borrower and its
employees, nor
-21-
is any strike, work stoppage or slowdown pending or threatened against the
Borrower.
5.15 Insurance. The Borrower maintains in force fire, casualty,
comprehensive liability and other insurance covering its properties and business
that is adequate and customary for the type and scope of its properties and
business.
5.16 Indebtedness. Except as reflected in the Financial Statements or
set forth in the Disclosure Schedule, and other than Indebtedness incurred in
the ordinary course of business since the Balance Sheet Date, the Borrower has
no outstanding Indebtedness.
5.17 Securities Law Compliance. The Borrower is not an "investment
company" as defined in the Investment Company Act of 1940, as amended. All of
the Borrower's outstanding stock was offered, issued and sold in compliance with
all applicable state and federal securities laws.
5.18 Accuracy of Information. None of the information furnished to the
Lender by or on behalf of the Borrower for purposes of this Agreement or any
Loan Document or any transaction contemplated hereby or thereby contains, and
none of such information hereinafter furnished will contain any material
misstatement of fact, nor does or will any such information omit any material
fact necessary to make such information not misleading at such time.
ARTICLE VI
CONDITIONS TO ADVANCES AND TERM LOAN
The Lender shall not be obligated to make any Advance or to fund the
Term Loan unless the following conditions have been satisfied:
6.1 Each Advance and Funding of Term Loan. The obligations of the
Lender to make each Advance and to fund the Term Loan are subject to the
following conditions precedent, each of which shall have been met or performed
on or before the Advance Date or the Closing Date, as the case may be:
(a) No Default. No Default or Event of Default shall have occurred
and be continuing or will occur upon the making of the Advance or the Term Loan.
(b) Correctness of Representations. The representations and
warranties made by the Borrower in this Agreement shall be true and correct with
the same force and effect as though such representations and warranties had been
made on and as of the Advance Date (i) except to the extent that the
representations and warranties set forth in Article V of this Agreement are
untrue as a result of
-22-
circumstances that have changed subsequent to the date hereof, which change has
caused no non-compliance by the Borrower with the covenants, conditions and
agreements in this Agreement and (ii) except that the references in Section 5.5
of this Agreement to the financial statements and the term "Balance Sheet Date"
are deemed to refer to the most recent financial statements (inclusive of
consolidated balance sheets and statements of operations, cash flows and
stockholders' equity of the Borrower and its Subsidiaries) furnished to the
Lender pursuant to Section 7.1(a) and (b) of this Agreement and the date of such
financial statements, respectively.
(c) No Litigation; Certain Other Conditions. There shall be no
suit or proceeding (other than suits or proceedings disclosed on the Disclosure
Schedule on the date of this Agreement) pending or threatened before any court
or arbitration tribunal or by or before any governmental or regulatory
authority, commission, bureau or agency or public regulatory body that, if
determined adversely to the Borrower or any Subsidiary of the Borrower, is
reasonably likely to have a material adverse effect on the consolidated
financial condition or results of operations of the Borrower and its
Subsidiaries taken as a whole.
(d) No Material Adverse Change. There shall have been no material
adverse change in the consolidated financial condition or results of operations
of the Borrower and its Subsidiaries taken as a whole since the Balance Sheet
Date.
(e) Loan Documents. All Loan Documents shall be in full force and
effect.
6.2 First Advance and Funding of Term Loan. The obligations of the
Lender to make the first Advance and to fund the Term Loan are subject to the
following additional conditions precedent, each of which shall have been met or
performed on or before the Closing Date:
(a) Opinion of Counsel. The Lender shall have received from
independent counsel to the Borrower an opinion or opinions, in form and
substance satisfactory to the Lender and its counsel.
(b) Certificates of Legal Existence and Authority to do Business.
The Borrower shall have delivered to the Lender certificates as to its legal
existence and good standing under the laws of The Commonwealth of Massachusetts,
and the Borrower shall have delivered to the Lender certificates as to its
authority to do business as a foreign corporation in the States of California,
Colorado, Connecticut, Florida, Illinois, Maryland, Michigan, New Jersey, New
Mexico, New York, Oregon, Pennsylvania, Texas, Arizona, Minnesota and North
Carolina, each dated as of a recent date.
-23-
(c) Clerk's Certificate. The Borrower shall have delivered to the
Lender a certificate of its Clerk as to (i) its charter documents and by-laws,
as amended, (ii) corporate votes authorizing the execution and delivery of the
Loan Documents, and (iii) incumbency of the officers authorized to execute the
Loan Documents on behalf of the Borrower.
(d) Notes. A Revolving Credit Note and a Term Note, each duly
executed by the Borrower and otherwise completed, shall have been delivered to
the Lender.
(e) Borrower's Certificates. The Borrower shall have furnished to
the Lender a certificate duly executed by the Borrower's chief financial officer
dated the Advance Date or Closing Date, as the case may be, to the effect that
each of the conditions set forth in the foregoing Section 6.1 has been met as of
such date.
(f) Mortgage. A mortgage (the "Mortgage") in the form attached
hereto as Exhibit C with respect to the real property located in The
Commonwealth of Massachusetts that is owned by the Borrower (the "Property"),
duly executed by the Borrower and otherwise completed, shall have been delivered
to the Lender and recorded. A title insurance policy in favor of the Lender
issued by a title insurance company reasonably satisfactory to the Lender
insuring title to the Property on terms and subject to conditions reasonably
satisfactory to the Lender shall have been obtained.
(g) Insurance. The Borrower shall have furnished to the Lender
copies of all its property insurance policies.
(h) All Proceedings Satisfactory. All corporate and other
proceedings taken prior to or on the Closing Date in connection with the
transactions contemplated by this Agreement, and all documents and exhibits
related thereto, shall be reasonably satisfactory in form and substance to the
Lender and its counsel.
(i) Additional Documents. The Borrower shall have delivered to the
Lender all additional opinions, documents and certificates that the Lender or
its counsel may reasonably require.
ARTICLE VII
AFFIRMATIVE COVENANTS OF THE BORROWER
The Borrower covenants and agrees that from the date of execution of
this Agreement and until the payment in full of the principal of and interest
upon the Notes and payment and performance of all other Obligations:
-24-
7.1 Reporting Requirements. The Borrower shall, unless the Lender shall
otherwise consent in writing, furnish to the Lender:
(a) As soon as available and in any event within sixty days after
the end of each of the first three quarters of each fiscal year of the Borrower
and its Subsidiaries, (i) a consolidated and consolidating balance sheet of the
Borrower and its Subsidiaries as of the end of such quarter and (ii)
consolidated and consolidating statements of operations, cash flows and
stockholders' equity of the Borrower and its Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end of
such quarter, all in reasonable detail and duly certified by the chief financial
officer of the Borrower as having been prepared in accordance with generally
accepted accounting principles consistently applied (subject to addition of
notes and ordinary year-end audit adjustments), together with a certificate of
the chief financial officer of the Borrower stating that no Default or Event of
Default has occurred and is continuing or, if a Default or an Event of Default
has occurred and is continuing, a statement as to the nature thereof and the
action that the Borrower proposes to take with respect thereto;
(b) As soon as available and in any event within ninety days after
the end of each fiscal year of the Borrower, the audited consolidated balance
sheet of the Borrower and its Subsidiaries as of the end of such fiscal year and
the audited consolidated statements of operations, cash flows and stockholders'
equity of the Borrower and its Subsidiaries for such fiscal year, in each case
accompanied by the unqualified opinion with respect thereto of the Borrower's
independent public accountants and a certification by such accountants stating
that they have reviewed this Agreement and whether, in making their audit, they
have become aware of any Default or Event of Default and if so, describing its
nature, along with the related unaudited consolidating balance sheet of the
Borrower and its Subsidiaries as of the end of such fiscal year and the
unaudited consolidating statements of operations, cash flows and stockholders'
equity of the Borrower and its Subsidiaries for such fiscal year;
(c) Not later than sixty days following the end of each fiscal
quarter a certificate signed by the chief financial officer of the Borrower
substantially in the form of Exhibit 7.1(c) hereto (the "Compliance
Certificate");
(d) Not later than thirty days after the end of each fiscal year
of the Borrower, the Borrower's representative forecast for the next fiscal year
on a consolidated basis, including, at a minimum, projected statements of profit
and loss and projected cash flow, prepared in accordance with generally accepted
accounting principles consistently applied;
(e) Promptly upon receipt thereof, one copy of each other report
submitted to the Borrower or any Subsidiary by independent accountants in
-25-
connection with any annual, interim or special audit made by them of the books
of the Borrower or any Subsidiary;
(f) Promptly after the commencement thereof, notice of all
actions, suits and proceedings before any court, arbitration tribunal or
governmental regulatory authority, commission, bureau, agency or public
regulatory body that, if determined adversely to the Borrower or any Subsidiary
of the Borrower, would be reasonably likely to have a material adverse effect on
the consolidated financial condition or results of operations of the Borrower
and its Subsidiaries taken as a whole;
(g) As soon as possible, and in any event within five days after
the Borrower shall know of the occurrence of any Default or Event of Default,
the written statement of the chief financial officer of the Borrower setting
forth details of such Default or Event of Default and action that the Borrower
proposes to take with respect thereto;
(h) As soon as possible, and in any event within five days after
the occurrence thereof, written notice as to any other event of which the
Borrower becomes aware that with the passage of time, the giving of notice or
otherwise, is reasonably likely to result in a material adverse change in the
consolidated financial condition or results of operations of the Borrower; and
(i) Such other information respecting the business or properties
or the condition or operations, financial or otherwise, of the Borrower as the
Lender may from time to time reasonably request.
7.2 Loan Proceeds. The Borrower shall use the proceeds of the Advances
only for the purpose of general working capital, including, but not limited to,
for the purpose of acquisitions for which the aggregate cost may not exceed
$2,500,000 per annum.
7.3 Maintenance of Business and Properties; Insurance.
(a) The Borrower will continue to engage in business of the same
general nature as the business currently engaged in by the Borrower. The
Borrower will at all times maintain, preserve and protect all material
franchises and trade names and preserve all the Borrower's material tangible
property used or useful in the conduct of its business and keep the same in good
repair, working order and condition, ordinary wear and tear excepted, and from
time to time make all needful and proper repairs, renewals, replacements,
betterments, and improvements thereto so that the business carried on in
connection therewith may be conducted properly and advantageously at all times.
-26-
(b) The Borrower will keep all of its insurable properties now or
hereafter owned adequately insured at all times against loss or damage by fire
or other casualty to the extent customary with respect to like properties of
companies conducting similar businesses and to the extent available at
commercially reasonable rates; and will maintain public liability and workmen's
compensation insurance insuring the Borrower to the extent customary with
respect to companies conducting similar businesses and to the extent available
at commercially reasonable rates, all by financially sound and reputable
insurers. All property insurance policies shall name the Lender as a loss payee
and shall contain a provision requiring at least 15 days' written notice to the
Lender prior to the cancellation or modification of each such policy. The
Borrower shall furnish to the Lender from time to time at the Lender's request
copies of all such insurance policies and certificates evidencing such insurance
coverage. Notwithstanding the foregoing, the Borrower may self-insure workmen's
compensation to the extent permitted by law and may also self-insure other risks
to the extent reasonably deemed prudent by the Borrower.
7.4 Payment of Taxes. The Borrower shall pay and discharge, or cause to
be paid and discharged, all material taxes, assessments, and governmental
charges or levies imposed upon the Borrower and its Subsidiaries or their income
or profits, or upon any other properties belonging to the Borrower prior to the
date on which penalties attach thereto, and all lawful claims that, if unpaid,
might become a lien or charge upon any material properties of the Borrower,
except for such taxes, assessments, charges, levies or claims as are being
contested by the Borrower in good faith by appropriate proceedings promptly
initiated and diligently prosecuted, for which adequate book reserves have been
established in accordance with generally accepted accounting principles, as to
which no foreclosure, distraint, sale or other similar proceedings shall have
been commenced, or, if commenced, have been effectively stayed.
7.5 Compliance with Laws, etc. The Borrower shall comply with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority, and obtain or maintain all Licenses required under
applicable law or regulation for the operation of the Borrower's business, where
noncompliance or failure to obtain or maintain would have a material adverse
effect on the consolidated financial condition, assets, or results of operations
of the Borrower and its Subsidiaries taken as a whole; provided, however, that
such compliance or the obtaining of such Licenses may be delayed while the
applicability or validity of any such law, rule, regulation or order or the
necessity for obtaining any such License is being contested by the Borrower in
good faith by appropriate proceedings promptly initiated and diligently
prosecuted.
7.6 Books, Records and Accounts. The Borrower shall keep true and
correct books, records and accounts, in which entries will be made in accordance
with generally accepted accounting principles consistently applied, and that
shall comply
-27-
with the requirements of the Foreign Corrupt Practices Act of 1977 to the extent
applicable to the Borrower. The Lender or its representatives shall upon
reasonable notice to the Borrower be afforded, during normal business hours,
access to and the right to examine and copy any such books, records and accounts
and the right to inspect the Borrower's premises and business operations. All
financial and other information with respect to the Borrower and/or any of its
Subsidiaries now or hereafter obtained by the Lender under this Agreement or
otherwise in connection with any of the transactions contemplated hereunder
shall be held in confidence and shall not be released or made available to any
other Person, except (i) to governmental agencies (and examiners employed by
same) having oversight over the affairs of the Lender, (ii) pursuant to subpoena
or similar process issued by a court or governmental agency of competent
jurisdiction, or (iii) as otherwise directed by order of any court or
governmental agency of competent jurisdiction.
7.7 Further Assurances. The Borrower shall execute and deliver, at the
Borrower's expense, all notices and other instruments and documents and take all
actions, including, but not limited to, making all filings and recordings, that
the Lender shall reasonably request in order to assure to the Lender all rights
given to the Lender hereby or under any other Loan Document.
7.8 Bank Accounts. The Borrower shall maintain with the Lender a
deposit account and, at the written request of the Lender, shall give the Lender
written notice of any other accounts maintained by the Borrower, including the
types of accounts and names and addresses of the institutions with which such
accounts are maintained.
ARTICLE VIII
NEGATIVE COVENANTS OF THE BORROWER
The Borrower covenants and agrees that from the date of execution of
this Agreement and until the payment in full of the principal of and interest
upon the Notes and payment and performance of all other Obligations:
8.1 Sale of Assets; Mergers, Etc.
(a) Sale of Assets. The Borrower will not, except in the ordinary
course of business, sell, transfer, or otherwise dispose of, to any Person any
assets (including the securities of any Subsidiary).
(b) Mergers, Etc. Neither the Borrower nor any Subsidiary will
consolidate with or merge into any other Person or permit any other Person to
consolidate with or merge into it, or acquire all or substantially all of the
assets of any Person, or sell, assign, lease or otherwise dispose of (whether in
one transaction
-28-
or in a series of transactions) all or substantially all of its assets to any
Person, except that
(1) a Subsidiary may consolidate with or merge into the
Borrower or another Subsidiary; and
(2) the Borrower or any of its Subsidiaries may acquire all
or substantially all of the assets of any Person provided the
aggregate purchase price liability, including all contingent
liabilities, when aggregated with all such acquisitions and any
Investments permitted under Section 8.4(2) shall not exceed a
total of $5,000,000 in each calendar year during the term of this
Agreement beginning with calendar year 1993.
8.2 Liens and Encumbrances.
(a) Neither the Borrower nor any Subsidiary will (a) cause or
permit or (b) agree or consent to cause or permit in the future (upon the
happening of a contingency or otherwise), any of its real or personal property,
whether now owned or subsequently acquired, to be subject to any Lien other than
Liens described below (which may herein be referred to as "Permitted Liens"):
(1) Liens securing the payment of taxes, assessments or
governmental charges or levies or the demands of suppliers,
mechanics, carriers, warehousers, landlords and other like
Persons, which payments are not yet due and payable or (as to
taxes) may be paid without interest or penalty; provided, that, if
such payments are due and payable, such Liens shall be permitted
hereunder only to the extent that (A) all claims that the Liens
secure are being actively contested in good faith and by
appropriate proceedings, (B) adequate book reserves have been
established with respect thereto to the extent required by
generally accepted accounting principles, and (C) such Liens do
not in the aggregate materially interfere with the owning
company's use of property necessary or material to the conduct of
the business of the Borrower and its Subsidiaries taken as a
whole;
(2) Liens incurred or deposits made in the ordinary course of
business (A) in connection with worker's compensation,
unemployment insurance, social security and other like laws, or
(B) to secure the performance of letters of credit, bids, tenders,
sales contracts, leases, statutory obligations, surety, appeal and
performance bonds and other similar obligations, in each case not
incurred in connection with the borrowing of money, the obtaining
of advances or the payment of the deferred purchase price of
property;
-29-
(3) Liens not otherwise described in Section 8.2(a)(1) or (2)
that are incurred in the ordinary course of business and are
incidental to the conduct of its business or ownership of its
property, were not incurred in connection with the borrowing of
money, the obtaining of advances or the payment of the deferred
purchase price of property and do not in the aggregate materially
detract from the value of, or materially interfere with the owning
company's use of, property necessary or material to the conduct of
the business of the Borrower and its Subsidiaries taken as a
whole;
(4) Liens in favor of the Lender or any of its affiliates;
(5) Judgment liens or attachments that shall not have been in
existence for a period longer than 30 days after the creation
thereof, or if a stay of execution shall have been obtained, for a
period longer than 30 days after the expiration of such stay or if
such an attachment is being actively contested in good faith and
by appropriate proceedings, for a period longer than 30 days after
the creation thereof;
(6) Liens existing as of the Closing Date and disclosed on
the Disclosure Schedule hereto;
(7) Liens provided for in equipment or Financing Leases
(including financing statements and undertakings to file financing
statements) provided that they are limited to the equipment
subject to such leases and the proceeds thereof;
(8) Leases, subleases, licenses and sublicenses granted to
third parties not interfering in any material respect with the
business of the Borrower or any Subsidiary of the Borrower;
(9) Any Lien on any asset of any corporation existing at the
time such corporation is merged into or consolidated with the
Borrower or a Subsidiary of the Borrower and not created in
contemplation of such event;
(10) Any Lien existing on any asset prior to the acquisition
thereof by the Borrower or any Subsidiary of the Borrower and not
created in contemplation of such event;
(11) Liens in respect of any purchase money obligations for
tangible property used in its business that at any time shall not
exceed $2,000,000, provided that any such encumbrances shall not
extend to
-30-
property and assets of the Borrower or any Subsidiary not
financed by such a purchase money obligation;
(12) Easements, rights of way, restrictions and other similar
charges or Liens relating to real property and not interfering in
a material way with the ordinary conduct of its business; and
(13) Liens on its property or assets created in connection
with the refinancing of Indebtedness secured by Permitted Liens on
such property, provided that the amount of Indebtedness secured by
any such Lien shall not be increased as a result of such
refinancing and no such Lien shall extend to property and assets
of the Borrower or any Subsidiary not encumbered prior to any such
refinancing.
(b) In case any property is subjected to a Lien in violation of
Section 8.2(a), the Borrower will make or cause to be made provision whereby the
Notes will be secured equally and ratably with all other obligations secured by
such property, and in any case the Notes shall have the benefit, to the full
extent that the holders may be entitled thereto under applicable law, of an
equitable Lien equally and ratably securing the Notes. Such violation of Section
8.2(a) shall constitute an Event of Default hereunder, whether or not any such
provision is made pursuant to this Section 8.2(b).
8.3 Sales and Leasebacks. The Borrower and its Subsidiaries will not
sell or transfer any of their property and become, directly or indirectly,
liable as the lessee under a lease of such property (other than such
transactions between the Subsidiaries).
8.4 Investments. Neither the Borrower nor any Subsidiary will make or
maintain any investments, made in cash or by delivery of property or assets, (a)
in any Person, whether by acquisition of capital stock, Indebtedness, or other
obligations or securities, or by loan or capital contribution, or otherwise, or
(b) in any property, whether real or personal, (items (a) and (b) being herein
called "Investments"), except the following:
(1) Investments in direct obligations of, or guaranteed by,
the United States government, its agencies or any public
instrumentality thereof and backed by the full faith and credit of
the United States government with maturities not to exceed (or an
unconditional right to compel purchase within) one year from the
date of acquisition;
(2) Investments in or to any Subsidiary or other Person
provided any such Investment when aggregated with all such other
Investments permitted under this Section 8.4(2) and any
acquisitions
-31-
permitted under Section 8.1(b) shall not exceed a total of
$5,000,000 in each calendar year during the term of this Agreement
beginning with calendar year 1993;
(3) Investments and obligations issued by any state of the
United States or any political subdivision of any such state or
any public instrumentality thereof with maturities not to exceed
(or an unconditional right to compel purchase within) 180 days of
the date of acquisition that are rated in one of the top two
rating classifications by at least one nationally recognized
rating agency;
(4) Investments in demand and time deposits with, Eurodollar
deposits with, certificates of deposit issued by, or obligations
or securities fully backed by letters of credit issued by (x) any
bank organized under the laws of the United States, any state
thereof, the District of Columbia or Canada having combined
capital and surplus aggregating at least $100,000,000, or (y) any
other bank organized under the laws of a state that is a member of
the European Economic Community (or any political subdivision
thereof), Japan, the Cayman Islands, or British West Indies having
as of any date of determination combined capital and surplus of
not less than $500,000,000 or the equivalent thereof (determined
in accordance with generally accepted accounting principles)
("Permitted Banks");
(5) Shares of money market mutual funds registered under the
Investment Company Act of 1940, as amended;
(6) Foreign currency swaps and hedging arrangements entered
into in the ordinary course of business to protect against
currency losses, and interest rate swaps and caps entered into in
the ordinary course of business to protect against interest rate
exposure on Indebtedness bearing interest at a variable rate;
(7) Investments in publicly traded companies and mutual funds
(other than money market mutual funds) that in the aggregate shall
not exceed $5,000,000; and
(8) Other Investments existing on the Closing Date and listed
on the Disclosure Schedule.
8.5 Transactions with Affiliates. Neither the Borrower nor any
Subsidiary will enter into any transaction (including the purchase, sale or
exchange of property or the rendering of any service) with any Affiliate except
upon fair and reasonable
-32-
terms that are at least as favorable to the Borrower or the Subsidiary as would
be obtained in a comparable arm's-length transaction with a non-Affiliate.
8.6 ERISA Compliance. Neither the Borrower nor any of its Subsidiaries
will at any time permit any employee pension benefit plan (as such term is
defined in Section 3 of ERISA) maintained by the Borrower or any of its
Subsidiaries or in which employees of the Borrower or any of its Subsidiaries is
entitled to participate to:
(a) engage in any "prohibited transaction" as such term is defined
in Section 4975 of the Internal Revenue Code of 1986, as amended, or described
in Section 406 of ERISA;
(b) incur any "accumulated funding deficiency" as such term is
defined in Section 302 of ERISA, whether or not waived; or
(c) terminate under circumstances that could result in the
imposition of a Lien on the property of the Borrower or any Subsidiary of the
Borrower pursuant to Section 4068 of ERISA.
8.7 Financial Covenants. The Borrower covenants and agrees that:
(a) Consolidated Tangible Net Worth. The Consolidated Tangible Net
Worth as of the end of each fiscal quarter of the Borrower shall not be less
than the sum of (i) $26,000,000, and (ii) beginning with the year ending
December 31, 1994, 50% of Consolidated Net Income (excluding losses) for each
consecutive fiscal year of the Borrower beginning with the year ending December
31, 1994, on a cumulative basis.
(b) Consolidated Indebtedness. The ratio ("Debt-to-Net Worth
Ratio") of the Consolidated Indebtedness (excluding all guaranties except
guaranties with respect to borrowed money) as of the end of each fiscal quarter
of the Borrower beginning with the fiscal quarter ending December 31, 1993 to
its Consolidated Tangible Net Worth as of the end of each fiscal quarter of the
Borrower beginning with the fiscal quarter ending December 31, 1993 shall not
exceed 1.5 to 1.
(c) Consolidated Debt Service. The ratio (the "Cash Flow Ratio")
as of the end of each fiscal quarter of the Borrower of (i) Consolidated
Operating Cash Flow for the four consecutive fiscal quarters then ended to (ii)
Consolidated Debt Service determined for the four consecutive fiscal quarters
then ended shall not be less than 1.25 to 1.00.
8.8 Contracts Prohibiting Compliance with Agreement. The Borrower will
not without the prior written consent of the Lender enter into any contract or
other
-33-
agreement that would prohibit or in any way restrict the ability of the Borrower
to comply with any provision of this Agreement.
ARTICLE IX
EVENTS OF DEFAULT
9.1 Default. If any one of the following events ("Events of Default")
shall occur:
(a) Any representation or warranty made by the Borrower herein or
in any other Loan Document, or in any certificate or report furnished by the
Borrower hereunder or thereunder, shall prove to have been incorrect in any
material respect when made;
(b) Payment of any principal or interest due under any Note shall
not be made on or before the date due;
(c) A final judgment for in excess of $2,000,000 shall be rendered
against the Borrower or any of its Subsidiaries for the payment of money that,
after deducting the amount of any insurance proceeds paid or payable to or on
behalf of the Borrower or its Subsidiary in connection with such judgment, is in
excess of $2,000,000, and the same shall remain undischarged for a period of
thirty (30) days, during which period execution shall not effectively be stayed.
If a dispute exists with respect to the liability of any insurance underwriter
under any insurance policy of the Borrower or its Subsidiary, no deduction under
this subsection shall be made for the insurance proceeds that are the subject of
such dispute;
(d) The Borrower or any Subsidiary shall (1) voluntarily terminate
operations or apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee or liquidator of such Person or of
all or a substantial part of the assets of such Person, (2) admit in writing its
inability, or be generally unable, to pay its debts as the debts become due, (3)
make a general assignment for the benefit of its creditors, (4) commence a
voluntary case under the Federal Bankruptcy Code (as now or hereafter in
effect), (5) file a petition seeking to take advantage of any other law relating
to bankruptcy, insolvency, reorganization, winding-up, or composition or
adjustment of debts, (6) fail to controvert in a timely and appropriate manner,
or acquiesce in writing to, any petition filed against it in an involuntary case
under the Federal Bankruptcy Code or applicable state bankruptcy laws or (7)
take any corporate action for the purpose of effecting any of the foregoing;
(e) Without its application, approval or consent, a proceeding
shall be commenced, in any court of competent jurisdiction, seeking in respect
of the
-34-
Borrower or any Subsidiary: the liquidation, reorganization, dissolution,
winding-up, or composition or readjustment of debt, the appointment of a
trustee, receiver, liquidator or the like of such Person or of all or any
substantial part of the assets of such Person, or other like relief in respect
of such Person under any law relating to bankruptcy, insolvency, reorganization,
winding-up, or composition or adjustment of debts; and, if the proceeding is
being contested in good faith by such Person, the same shall continue
undismissed, or unstayed and in effect for any period of 45 consecutive days, or
an order for relief against such Person shall be entered in any case under the
Bankruptcy Code or applicable state bankruptcy laws;
(f) Any foreclosure or other proceedings shall be commenced to
enforce, execute or realize upon any lien, encumbrance, attachment, trustee
process, mortgage or security interest for payment of an amount in excess of
$250,000 against the Borrower or any Subsidiary;
(g) Default shall be made in the due observance or performance of
any covenant or agreement under Article VIII;
(h) Default shall be made in the due observance or performance of
any covenant or agreement contained herein (and not constituting an Event of
Default under any other clause in this Article IX) or in any other Loan Document
or in any other agreement between the Lender and the Borrower evidencing or
securing borrowed monies and such default shall continue and shall not have been
remedied within thirty days after the date on which such default occurred;
(i) The Borrower or any of its Subsidiaries shall fail to make any
payment of principal or interest beyond the period of grace contained in any
instrument or agreement evidencing any indebtedness (other than to the Lender)
for money borrowed in excess of $100,000 (unless such default is the result of a
good faith dispute arising under such agreement or instrument and the other
party or parties thereto have not accelerated the maturity of such
indebtedness), or default shall be made by the Borrower or any of its
Subsidiaries in the performance of any other covenant or agreement contained in
any such agreement or instrument as a result of which the other party thereto
proceeds to accelerate the maturity of the indebtedness of such Person under
such agreement or instrument;
(j) There shall occur any material adverse change in the financial
condition of the Borrower;
then, in the case of any such event, other than an event described in subsection
(d) or (e) of this Section 9.1, the Lender may, at its option immediately
declare any Obligations to it not otherwise due and payable at such time to be
forthwith due and payable, whereupon the same shall become forthwith due and
payable without further presentment, demand, protest, or other notice of any
kind, all of which are
-35-
hereby expressly waived, anything contained herein or in the Notes to the
contrary notwithstanding; and, in the case of any event described in subsection
(d) or (e) of this Section 9.1, any Obligation not otherwise due and payable at
such time shall become immediately due and payable without presentment, demand,
protest, or other notice of any kind, all of which are hereby expressly waived,
anything contained herein or in any Note to the contrary notwithstanding; and,
further, in each and every such occurrence the Lender may proceed to protect and
enforce its rights by suit in equity, action at law and/or other appropriate
proceedings either for specific performance of any covenant or condition
contained in this Agreement or in any instrument delivered to the Lender
pursuant to this Agreement, or in aid of the exercise of any power granted in
this Agreement or any such instrument.
9.2 Lender's Further Rights and Remedies. Upon the occurrence and
during the unremedied continuation of an Event of Default, the Lender shall have
the right to require the Borrower to provide the Lender with cash collateral or
other collateral of a type and value satisfactory to the Lender in an amount
equal to the Borrower's outstanding Obligations to the Lender. With respect to
such collateral (the "Collateral"), the Lender shall have the rights and
remedies of a secured party under the Uniform Commercial Code ("UCC") and the
Borrower agrees to execute and deliver to the Lender such security agreements
and financing statements under the UCC as the Lender may require, and to pay the
cost of filing the same. Any deposits or other sums at any time credited by or
due from the Lender to the Borrower shall at all times constitute Collateral for
the Obligations. The Lender may apply the net proceeds of any disposition of
Collateral or set-off to the Obligations in such order as the Lender may
determine, whether or not due. With respect to Obligations not yet due,
including contingent Obligations, the Lender may at its option hold Collateral
(including any proceeds thereof) until all such Obligations have been paid in
full.
ARTICLE X
MISCELLANEOUS
10.1 No Waiver, Remedies Cumulative. No failure on the part of the
Lender to exercise and no delay in exercising any right hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any right
hereunder preclude any other or further exercise thereof or the exercise of any
other right. The remedies herein provided are cumulative and are not exclusive
of any remedies provided by law. Any condition or restriction imposed in this
Agreement with respect to the Borrower may be waived, modified or suspended by
the Lender but only on the Lender's prior action in writing and only as so
expressed in such writing and not otherwise.
-36-
10.2 Survival of Representations, etc. All representations, warranties
and covenants made herein or in any Loan Document shall survive the making of
any Advance hereunder and the delivery of the Notes and the consummation of all
other transactions contemplated hereby or thereby.
10.3 Right of Setoff. In addition to any rights now or hereafter
granted under applicable law or otherwise and not by way of limitation of any
such rights, upon the occurrence and during the unremedied continuation of an
Event of Default, the Lender is hereby authorized at any time or from time to
time, without presentment, demand, protest or other notice of any kind to the
Borrower or to any other Person, any such notice being hereby expressly waived,
to set off and to appropriate and apply any and all deposits (general or
special) and any other indebtedness at any time held or owing by the Lender to
or for the credit or the account of the Borrower against and on account of the
Obligations and liabilities of the Borrower to the Lender under this Agreement
or under any of the other Loan Documents, and all other claims of any nature or
description arising out of or connected with this Agreement or any other Loan
Document, irrespective of whether or not the Lender shall have made any demand
hereunder and although said Obligations, liabilities or claims, or any of them,
shall be contingent or unmatured.
10.4 Indemnity; Costs, Expenses and Taxes. The Borrower hereby agrees
to indemnify the Lender and its legal representatives, successors, assigns and
agents against, and agrees to protect, save and keep harmless each of them from
and to pay upon demand, any and all liabilities, obligations, taxes (including
any and all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of any Loan Documents), liens,
charges, losses, damages, penalties, claims, actions, suits, costs, indemnities,
expenses and disbursements (including, without limitation, reasonable legal
fees, costs and expenses, including without limitation reasonable costs of
attending and preparing for depositions and other court proceedings), of
whatsoever kind and nature, imposed upon, incurred by or asserted against such
indemnified party in any way relating to or arising out of any of the
transactions contemplated hereunder or in any of the Loan Documents, including
but not limited to all costs of investigation, monitoring, legal representation,
remedial response, removal, restoration, or permit acquisition that may now or
in the future be undertaken, suffered, paid, awarded, assessed or otherwise
incurred as a result of the presence of, release or threatened release of
Hazardous Substances on, in, under or near the Property (all of the foregoing,
collectively, "Costs") except to the extent arising by reason of the Lender's
gross negligence, misconduct or breach hereof. Without limiting the foregoing,
the Borrower agrees to pay on demand (a) all out-of-pocket costs and expenses of
the Lender in connection with the preparation, execution and delivery of this
Agreement and any other Loan Documents, including without limitation the
reasonable fees and out-of-pocket expenses of Foley, Hoag & Elliot, special
counsel for the Lender, with respect thereto, as well as (b) the reasonable fees
and all out-of-pocket expenses of legal counsel, independent public
-37-
accountants and other outside experts retained by the Lender in connection with
any request by the Borrower for consents, waivers or other action or forbearance
by the Lender hereunder, for the modification or amendment hereof, or other like
matters relating to the administration of this Agreement; and (c) all reasonable
costs and expenses, if any, of the Lender incurred after the occurrence of any
Event of Default hereunder in connection with the enforcement of any of the Loan
Documents or the protection of any of the Lender's rights, thereunder,
including, without limitation, any internal costs, including personnel costs of
the Lender incurred in connection with such administration and enforcement or
protection.
10.5 Notices.
(a) Unless telephonic notice is specifically permitted pursuant to
the terms of this Agreement, any notice or other communication hereunder to any
party hereto shall be by telegram, telecopier, telex, delivery in hand or by
courier, or registered or certified mail (return receipt requested) and shall be
deemed to have been given or made when telegraphed, telexed, telecopied (and
confirmed received), delivered in hand or by courier, or three days after being
deposited in the mails, postage prepaid, registered or certified, addressed to
the party as follows (or at any other address that such party may hereafter
specify to the other parties in writing):
(i) If to the Lender:
The First National Bank of Boston
100 Federal Street
Boston, Massachusetts 02110
Attn: Ms. Sharon A. Stone, Director
Telecopier No. (617) 434-4048
with a copy to:
Arlene L. Bender, Esq.
Foley, Hoag & Eliot
One Post Office Square
Boston, Massachusetts 02109
Telecopier No. (617) 482-7347
(ii) If to the Borrower:
Six Shattuck Road
Andover, Massachusetts 01810
Attn: Mr. Robert F. O'Brien, Treasurer
Telecopier No. (508) 975-3756
-38-
with a copy to:
Richard S. Chute, Esq.
Hill & Barlow
One International Place
Boston, Massachusetts 02110
Telecopier No. (617) 439-3580
10.6 MASSACHUSETTS LAW. THIS AGREEMENT AND EACH OF THE LOAN DOCUMENTS
SHALL BE DEEMED A CONTRACT MADE UNDER THE LAW OF THE COMMONWEALTH OF
MASSACHUSETTS AND SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF SAID STATE (WITHOUT REGARD TO ITS PRINCIPLES OF
CONFLICT OF LAWS).
10.7 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the Borrower and the Lender, and their respective
legal representatives, successors and assigns; provided that the Lender may
assign its rights hereunder, but the Borrower may not assign any of its rights
hereunder.
10.8 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original and all of
which when taken together shall constitute one and the same instrument.
10.9 JURISDICTION, SERVICE OF PROCESS.
(a) ANY SUIT, ACTION OR PROCEEDING AGAINST THE BORROWER WITH
RESPECT TO ANY OF THE LOAN DOCUMENTS OR ANY JUDGMENT ENTERED BY ANY COURT IN
RESPECT OF ANY THEREOF SHALL BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS LOCATED IN SUFFOLK COUNTY OR IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MASSACHUSETTS, AS THE LENDER (IN ITS SOLE
DISCRETION) MAY ELECT, AND THE BORROWER HEREBY ACCEPTS THE EXCLUSIVE
JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF ANY SUIT, ACTION OR PROCEEDING
AND AGREES NOT TO ASSERT ANY CLAIM THAT IT IS NOT PERSONALLY SUBJECT TO THE
JURISDICTION OF SUCH COURTS.
(b) IN ADDITION, THE BORROWER HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO
THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO ANY
-39-
OF THE LOAN DOCUMENTS OR ANY JUDGMENT ENTERED BY ANY COURT IN RESPECT THEREOF
BROUGHT IN SUFFOLK COUNTY IN THE COMMONWEALTH OF MASSACHUSETTS, AND HEREBY
FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUIT, ACTION OR PROCEEDING BROUGHT
IN SUFFOLK COUNTY IN THE COMMONWEALTH OF MASSACHUSETTS HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
10.10 Limit on Interest. It is the intention of the Lender and the
Borrower to comply strictly with all applicable usury laws; and, accordingly, in
no event and upon no contingency shall the Lender ever be entitled to receive,
collect, or apply as interest under any Note any interest, fees, charges or
other payments equivalent to interest, in excess of the maximum rate that the
Lender may lawfully charge under applicable statutes and laws from time to time
in effect; and, in the event that the Lender ever receives, collects or applies
as interest on the Notes, any such excess, such amount that, but for this
provision, would be excessive interest shall be applied to the reduction of the
principal amount of the indebtedness evidenced by the Notes; and, if the
principal amount of indebtedness evidenced by the Notes, and all lawful interest
thereon, is paid in full, any remaining excess shall forthwith be paid to the
Borrower, or other party lawfully entitled thereto. In determining whether or
not the interest paid or payable, under any specific contingency exceeds the
highest contract rate permitted by applicable law from time to time in effect,
the Borrower and the Lender shall, to the maximum extent permitted under
applicable law, characterize any non-principal payment as a reasonable loan
charge, rather than as interest. Any provision of any Note, or of any other
agreement between the Lender and the Borrower, that operates to bind, obligate,
or compel the Borrower to pay interest in excess of such maximum lawful contract
rate shall be construed to require the payment of the maximum rate only. The
provisions of this Section 10.10 shall be given precedence over any other
provisions contained in the Notes or in any other agreement between the Lender
and the Borrower that is in conflict with the provisions of this Section 10.10.
10.11 Amendments, Modifications, Waivers. Any term of this Agreement or
of the Notes may be amended and the observance of any term of this Agreement or
of the Notes may be waived (either generally or in a particular instance and
either retroactively or prospectively) only with the written consent of the
Borrower and the Lender.
10.12 Headings. The headings of this Agreement are for convenience only
and are not to affect the construction of or to be taken into account in
interpreting the substance of this Agreement.
10.13 WAIVER OF NOTICE, ETC. THE BORROWER WAIVES DEMAND, NOTICE,
PROTEST, NOTICE OF ACCEPTANCE OF THIS AGREEMENT, NOTICE OF LOANS MADE, CREDIT
EXTENDED, COLLATERAL RECEIVED OR
-40-
DELIVERED OR OTHER ACTION TAKEN IN RELIANCE HEREON AND ALL OTHER DEMANDS AND
NOTICE OF ANY DESCRIPTION, EXCEPT AS REQUIRED HEREBY. WITH RESPECT BOTH TO THE
OBLIGATIONS AND COLLATERAL, THE BORROWER ASSENTS TO ANY EXTENSION OR
POSTPONEMENT OF THE TIME OF PAYMENT OR ANY OTHER INDULGENCE, TO ANY
SUBSTITUTION, EXCHANGE OR RELEASE OF COLLATERAL, TO THE ADDITION OR RELEASE OF
ANY PARTY OR PERSONS PRIMARILY OR SECONDARILY LIABLE, TO THE ACCEPTANCE OF
PRETRIAL PAYMENT THEREON AND THE SETTLEMENT, COMPROMISING OR ADJUSTING OF ANY
THEREOF, ALL IN SUCH MANNER AND AT SUCH TIME OR TIMES AS THE LENDER MAY DEEM
ADVISABLE. THE BORROWER AGREES THAT NO ACTIONS TAKEN BY ANY PERSON EXCEPT THE
LENDER SHALL IMPAIR OR OTHERWISE AFFECT ITS OBLIGATIONS HEREUNDER UNTIL ALL
OBLIGATIONS OF THE BORROWER HEREUNDER ARE SATISFIED IN FULL.
10.14 WAIVER OF TRIAL BY JURY. THE BORROWER WAIVES ANY AND ALL RIGHTS
THAT IT MAY HAVE TO A TRIAL BY JURY ON ANY CLAIM OR ACTION, OF ANY NATURE
WHATSOEVER, RELATING TO OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS.
10.15 Severability. In the event that any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement, but this Agreement shall
be construed as if such invalid, illegal or unenforceable provision had never
been contained herein.
10.16 Entire Agreement. This Agreement and the other Loan Documents
constitute the full and entire understanding and agreement between the parties
with regard to the subject matter hereof and thereof and shall supersede all
prior agreements and understandings, whether written or oral, between the
parties with respect to the subject matter hereof and thereof.
10.17 Compliance with Covenants. All computations determining
compliance with Sections 7 and 8 shall utilize accounting principles in
conformity with those used in the preparation of the financial statements
referred to in Section 5.5. If any subsequent financial reports of the Borrower
shall be prepared in accordance with accounting principles different from those
used in the preparation of the financial statements referred to in Section 5.5,
the Borrower shall inform the Lender of the changes in accounting principles and
shall provide to the Lender with such reports, such supplemental reconciling
financial information as may be required to ascertain compliance by the Borrower
with the covenants contained in this Agreement.
-41-
10.18 Termination. This Agreement may be terminated by the Borrower at
any time upon written notice of such termination to the Lender; provided,
however, that, unless and until all loans made by the Lender hereunder and all
other Obligations hereunder of the Borrower to the Lender existing (whether or
not due) as of the time of the receipt of such notice by the Lender shall have
been paid in full, such termination shall in no way affect the rights and powers
granted to the Lender in connection with this Agreement, and until such payment
in full all rights and powers hereby granted to the Lender hereunder shall be
and remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as an agreement under seal as of the date first above written.
Witness: MKS INSTRUMENTS, INC.
/s/ Arlene L. Bender By: /s/ Robert F. O'Brien
------------------------------- ----------------------------------
Title: Treasurer
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Sharon A. Stone
---------------------------------
Title: Director
------------------------------
-42-
EXHIBIT A
DEMAND REVOLVING CREDIT NOTE
November 1, 1993
$7,000,000 Boston, Massachusetts
FOR VALUE RECEIVED, MKS Instruments, Inc. (the "Company"), a
Massachusetts corporation, hereby promises to pay to the order of The First
National Bank of Boston, a national banking association (the "Payee"), at the
offices of the Payee at 100 Federal Street, Boston, Massachusetts, or such other
address as the Payee shall designate in a written notice to the Company, on
demand, the sum of $7,000,000 or such lesser sum as may from time to time be
outstanding, together with interest (calculated on the basis of a 360 day year
and the actual number of days elapsed in any period) at the annual rate
determined as provided in the Loan Agreement between the Company and the Payee
dated as of the date hereof (the "Loan Agreement").
Payments of interest shall be made monthly in arrears beginning
December 1, 1993 and on the first Business Day of each month thereafter on the
balance of the principal amount outstanding hereunder until this Note is paid in
full. Funds paid hereunder shall be applied first to accrued and unpaid interest
and then to the unpaid principal balance.
Overdue principal and interest shall bear interest at a rate of 3% per
annum over the Base Rate, payable on demand.
This Note is issued by the Company pursuant to, and is governed by and
subject to the terms and conditions of, the Loan Agreement. All capitalized
terms used in this Note that are not defined herein, but that are defined in the
Loan Agreement, shall have the meanings assigned to them therein.
Nothing contained in this Note, the Loan Agreement or the instruments
securing this Note shall be deemed to establish or require the payment of a rate
of interest in excess of the amount legally enforceable. In the event that the
rate of interest so required to be paid exceeds the maximum rate legally
enforceable, the rate of interest so required to be paid shall be automatically
reduced to the maximum rate legally enforceable, and any excess paid over such
maximum enforceable rate shall be automatically credited on account of the
principal hereof without premium or penalty.
This Note may be prepaid in whole or in part only to the extent
provided in the Loan Agreement.
Notices to the Company shall be by telegram, telecopy, telex, delivery
in hand or by courier, or registered or certified mail (return receipt
requested) and shall be deemed to have been given or made when telegraphed,
telecopied (and confirmed received), telexed, delivered in hand or by courier,
or three days after being deposited in the United States mails postage prepaid,
registered or certified, return receipt requested, to the Company at Six
Shattuck Road, Andover, Massachusetts 01810, marked "Attention: Robert F.
O'Brien", Telecopier No. (508) 975-3756 or at such other address specified by
the Company in accordance herewith to the holder.
No delay or omission on the part of the Payee in exercising any right
hereunder shall operate as a waiver of such right or of any other right of the
Payee, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or any other right on any future occasion. Every
maker, endorser and guarantor of this Note or the obligations represented hereby
waives presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note, assents to any extension or postponement of the time of payment or
any other indulgence, to any substitution, exchange or release of collateral and
to the addition or release of any other party or person primarily or secondarily
liable.
IN WITNESS WHEREOF, the undersigned has executed this Note as an
instrument under seal, as of the date first above written.
MKS INSTRUMENTS, INC.
By:_________________________________
Title:______________________________
-2-
EXHIBIT B
TERM NOTE
November 1, 1993
$10,000,000 Boston, Massachusetts
FOR VALUE RECEIVED, MKS Instruments, Inc. (the "Company"), a
Massachusetts corporation, hereby promises to pay to the order of The First
National Bank of Boston, a national banking association (the "Payee"), at the
offices of the Payee at 100 Federal Street, Boston, Massachusetts, or such other
address as the Payee shall designate in a written notice to the Company, the
principal amount of $10,000,000 and to pay interest (calculated on the basis of
a 360 day year and the actual number of days elapsed in any period) monthly in
arrears beginning on December 1, 1993 and on the first Business Day of each
month thereafter on the balance of such principal amount remaining unpaid from
time to time from the date hereof until such principal amount shall have become
due and payable, whether at maturity, by prepayment or otherwise, at the annual
rate determined as provided in the Loan Agreement between the Company and the
Payee dated as of the date hereof (the "Loan Agreement").
Payments of principal shall be made monthly in the aggregate fixed
amount of $55,555.56 beginning December 1, 1993 and on the first Business Day of
each month thereafter until maturity. The entire unpaid principal balance and
all accrued and unpaid interest hereunder shall be absolutely due and payable in
full on November 1, 2000. Funds paid hereunder shall be applied first to accrued
and unpaid interest and then to the unpaid principal balance.
Overdue principal and interest shall bear interest at a rate of 3% per
annum over the Base Rate, payable on demand.
This Note is issued by the Company pursuant to, and is governed by and
subject to the terms and conditions of, the Loan Agreement. This Note may become
due and payable and matured upon the occurrence of an Event of Default. All
capitalized terms used in this Note that are not defined herein, but that are
defined in the Loan Agreement, shall have the meanings assigned to them therein.
Nothing contained in this Note, the Loan Agreement or the instruments
securing this Note shall be deemed to establish or require the payment of a rate
of interest in excess of the amount legally enforceable. In the event that the
rate of interest so required to be paid exceeds the maximum rate legally
enforceable, the rate of interest so required to be paid shall be automatically
reduced to the maximum rate legally enforceable, and any excess paid over such
maximum enforceable rate shall be automatically credited on account of the
principal hereof without premium or penalty.
This Note may be prepaid in whole or in part only to the extent
provided in the Loan Agreement.
This Note is secured by a Commercial Real Estate Mortgage dated the
date hereof (the "Mortgage") from the maker hereof, as mortgagor, to the Payee
hereof, as mortgagee. The Mortgage constitutes a lien on certain property, more
particularly described therein, located in Andover and Lawrence, Massachusetts.
Notices to the Company shall be by telegram, telecopy, telex, delivery
in hand or by courier, or registered or certified mail (return receipt
requested) and shall be deemed to have been given or made when telegraphed,
telecopied (and confirmed received), telexed, delivered in hand or by courier,
or three days after being deposited in the United States mails postage prepaid,
registered or certified, return receipt requested, to the Company at Six
Shattuck Road, Andover, Massachusetts 01810, marked "Attention: Robert F.
O'Brien", Telecopier No. (508) 975-3756 or at such other address specified by
the Company in accordance herewith to the holder.
No delay or omission on the part of the Payee in exercising any right
hereunder shall operate as a waiver of such right or of any other right of the
Payee, nor shall any delay, omission or waiver on any one occasion be deemed a
bar to or waiver of the same or any other right on any future occasion. Every
maker, endorser and guarantor of this Note or the obligations represented hereby
waives presentment, demand, notice, protest and all other demands and notices in
connection with the delivery, acceptance, performance, default or enforcement of
this Note, assents to any extension or postponement of the time of payment or
any other indulgence, to any substitution, exchange or release of collateral and
to the addition or release of any other party or person primarily or secondarily
liable.
IN WITNESS WHEREOF, the undersigned has executed this Note as an
instrument under seal, as of the date first above written.
MKS INSTRUMENTS, INC.
By:_________________________________
Title:______________________________
-2-
EXHIBIT C
AMENDED AND RESTATED
COMMERCIAL REAL ESTATE MORTGAGE
This AMENDED AND RESTATED COMMERCIAL REAL ESTATE MORTGAGE (as amended
from time to time, this "Mortgage") is made this 1st day of November, 1993, by
and from MKS Instruments, Inc., a Massachusetts corporation having its principal
place of business at Six Shattuck Road, Andover, Massachusetts 01810
("Mortgagor"), to THE FIRST NATIONAL BANK OF BOSTON, a national banking
association having its principal office at 100 Federal Street, Boston,
Massachusetts 02110 (the "Bank").
Whereas, the parties have entered into the following two mortgages:
that certain Mortgage and Security Agreement dated January 6, 1988 recorded at
Essex North Registry of Deeds at Book 2660, Page 050 and that certain Mortgage
and Security Agreement dated May 20, 1987 recorded at said Deeds at Book 2500,
Page 022 (collectively, the "Prior Mortgages");
Now, therefore, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree to amend and restate the
Prior Mortgages in their entirety as follows:
1. Mortgage, Obligations and Future Advances.
1.1 Mortgage. For valuable consideration paid, the receipt and
sufficiency of which are hereby acknowledged, Mortgagor hereby grants to the
Bank, with MORTGAGE COVENANTS, the "Property" described in Section 1.4, below,
to secure the prompt payment and performance of any and all obligations of
Mortgagor (and if more than one Mortgagor of any of them) to the Bank, whether
direct or indirect, absolute or contingent, primary or secondary, due or to
become due, now existing or hereafter arising or acquired, pursuant to the
following (the "Obligations"):
(a) all obligations under a certain Promissory Note of even date
herewith from Mortgagor payable to the order of the Bank in the original
principal amount of $10,000,000 as the same may be further amended or extended
(the "Note"); and
(b) all covenants and other obligations contained in this Mortgage
or contemplated hereby, including without limitation Mortgagor's obligations
under Section 7.1 hereof.
1.2 Security Interest in Property. As continuing security for the
Obligations, Mortgagor hereby pledges, assigns and grants to the Bank a security
interest in any of the Property (as defined in Section 1.4 below) constituting
fixtures, (i.e., Building Service Equipment as defined in the Prior Mortgages).
This Mortgage shall be
deemed to be a security agreement and financing statement pursuant to the terms
of the Uniform Commercial Code of Massachusetts.
1.3 Collateral Assignment of Leases and Rents. Mortgagor hereby
assigns to the Bank as collateral security for the Obligations all of
Mortgagor's rights and benefits under any and all Leases (as defined in Section
1.4 below) and any and all rents and other amounts now or hereafter owing with
respect to the Leases or the use or occupancy of the Property. This collateral
assignment shall be absolute and effective immediately, but Mortgagor shall
continue to collect rents owing under the Leases until an Event of Default (as
defined in Section 6.1 below) occurs and the Bank exercises its rights and
remedies to collect such rents as set forth in Section 6.2(c) hereof.
1.4 Property. The term "Property", as used in this Mortgage, shall
mean those certain parcels of land and the structures and improvements now or
hereafter thereon located at Six Shattuck Road, Andover, Massachusetts, and
17-23 Ballard Way, Lawrence, Massachusetts, as more particularly described in
Exhibit A attached hereto, together with: (i) all rights now or hereafter
existing, belonging or pertaining thereto; (ii) all fixtures, now owned or
hereafter acquired, that are located on the Property; (iii) all of the rights
and benefits of Mortgagor under any present or future leases and agreements
relating to the Property, or the use or occupancy thereof together with any
extensions and renewals thereof, specifically excluding all duties or
obligations of Mortgagor of any kind arising thereunder (the "Leases"); and (iv)
all contracts, permits and licenses respecting the use, operation or maintenance
of the Property.
1.5 Cross-Collateral and Future Advances. It is the express intention
of the Mortgagor that this Mortgage secure payment and performance of all of the
Obligations, whether now existing or hereinafter incurred by reason of future
advances by the Bank or otherwise. Notice of the continuing grant of this
Mortgage shall not be required to be stated on the face of any document
evidencing any of the Obligations, nor shall such documents be required to
otherwise specify that they are secured hereby.
2. Representations, Warranties, Covenants.
2.1 Representations and Warranties. Mortgagor represents and warrants
that:
(a) (i) Mortgagor is a corporation duly organized and validly
existing under the laws of Massachusetts, (ii) Mortgagor has all requisite
capacity to own the Property and conduct its business as now conducted and as
presently contemplated, to execute and deliver this Mortgage and convey the
Property as contemplated hereby and to grant the security interests and
assignment of Leases contained herein,
-2-
(iii) the execution, delivery and performance of this Mortgage have been
authorized by all necessary proceedings of the Mortgagor and do not contravene
any provision of any law, rule or regulation applicable to Mortgagor or any
agreement, instrument, order or undertaking binding on Mortgagor or by which the
Property is bound or affected, (iv) this Mortgage has been duly executed and
delivered by Mortgagor and is the legal, valid and binding obligation of
Mortgagor enforceable in accordance with its terms except as limited by
bankruptcy, insolvency, reorganization, moratorium and other laws affecting the
enforcement of creditors' rights generally;
(b) Mortgagor is the sole legal and equitable owner of the
Property, holding good and marketable fee simple title to the Property, subject
to no liens, encumbrances, leases, security interests or rights of others except
as set forth in the title insurance policy issued by Ticor Title Insurance
Company of even date in favor of Mortgagee;
(c) Mortgagor is the sole legal and equitable owner of the entire
lessor's interest in the Leases and Mortgagor has not executed any other
assignment of the Leases or any of the rights or rents arising thereunder; and
(d) Each Obligation is a commercial obligation and does not
represent a loan used for personal, family or household purposes and is not a
consumer transaction, or to Mortgagor's knowledge otherwise subject to the
provisions of M.G.L. Chapter 140D, the Federal Truth in Lending Act or Federal
Reserve Board Regulation Z, or other consumer statutes or regulations and
restrictions.
2.2 Recording: Further Assurances. Mortgagor covenants that it shall,
at its sole cost and expense and upon the request of the Bank, cause this
Mortgage, and each amendment, modification or supplement hereto, to be recorded
and filed in such manner and in such places, and shall at all times comply with
all such statutes and regulations, as may be required by law in order to
establish, preserve and protect the interest of the Bank in the Property and the
rights of the Bank under this Mortgage. Upon the written request of the Bank,
and at the sole expense of Mortgagor, the Mortgagor will promptly execute and
deliver such further instruments and documents and take such further actions as
the Bank may deem desirable to obtain the full benefits of this Mortgage and of
the rights and powers herein granted, including, without limitation, filing any
financing statement under the Uniform Commercial Code, and obtaining any
consents or estoppel certificates of lessees under the Leases that the Bank
deems appropriate. Mortgagor authorizes the Bank to file any such financing
statement without the signature of the Mortgagor to the extent permitted by
applicable law, and to file a copy of this Agreement in lieu of a financing
statement.
-3-
2.3 Restrictions on Mortgagor. Mortgagor covenants that it will not,
directly or indirectly, without the prior written approval of the Bank in each
instance:
(a) Sell, convey, assign, transfer, mortgage, pledge, hypothecate
or dispose of all or any part of any legal or beneficial interest in the
Property or any part thereof or permit any of the foregoing, except as expressly
permitted by the terms of this Mortgage; or
(b) Permit to be created or suffer to exist any mortgage, lien,
security interest, attachment, or other encumbrance or charge on the Property or
any part thereof or interest therein, including, without limitation, (i) any
lien arising under any federal, state or local statute, rule, regulation or law
pertaining to the release or clean-up of Hazardous Substances and (ii) any
mechanics' or materialmen's lien, except as permitted by the Loan Agreement of
even date herewith between Mortgagor and Bank. Mortgagor further agrees to give
the Bank prompt written notice of the imposition of any lien referred to in this
Section 2.3(b) and to take any action necessary to secure the prompt discharge
or release of the same. Mortgagor agrees to defend its title to the Property and
the Bank's interest therein against the claims of all persons and, unless the
Bank requests otherwise, to appear in and diligently contest, at Mortgagor's
sole cost and expense, any action or proceeding which purports to affect
Mortgagor's title to the Property or the priority or validity of this Mortgage
or the Bank's interest hereunder.
2.4 Operation of Property. Mortgagor covenants and agrees as follows:
(a) Mortgagor will not permit the Property to be used for any
unlawful or improper purpose, will at all times comply with all federal, state
and local laws, ordinances and regulations, and will obtain and maintain all
governmental or other approvals, relating to Mortgagor, the Property or the use
thereof, including without limitation, any applicable zoning or building codes
or regulations and any laws or regulations relating to the handling, storage,
release or clean-up of Hazardous Substances, and will give prompt written notice
to the Bank of (i) any violation of any such law, ordinance or regulation by
Mortgagor or relating to the Property, (ii) receipt of notice from any federal,
state or local authority alleging any such violation and (iii) the release on
the Property of any Hazardous Substances. As used in this Mortgage, the term
"Hazardous Substances" shall mean any oil or other material or substance
constituting hazardous waste or hazardous materials or substances under any
applicable federal or state law, regulation or rule;
(b) Mortgagor will at all times keep the Property insured for such
losses or damage, for such periods and amounts, on such terms and by such
companies as may be required by law or which the Bank may from time to time
reasonably require. All policies regarding such insurance shall name the Bank as
mortgagee, loss payee and additional insured, and provide that no cancellation
or
-4-
material modification of such policies shall occur without fifteen days prior
written notice to the Bank. Mortgagor will furnish to the Bank upon request such
copies of original policies, certificates of insurance, or other evidence of the
foregoing as is acceptable to the Bank;
(c) Mortgagor will not enter into or modify the Leases without the
prior written consent of the Bank, such consent not to be unreasonably withheld
or delayed. Mortgagor may consent to a sublease under or the assignment of any
Lease upon written notice to the Bank, provided that Mortgagor does not release
the lessee from liability. Mortgagor will not accept any rentals under any Lease
for more than one month in advance, and will at all times perform and fulfill
every term and condition of the Leases;
(d) Mortgagor will at all times (i) maintain accurate records and
books regarding the Property in accordance with generally accepted accounting
principles; (ii) permit the Bank and the Bank's agents, employees and
representatives, at such reasonable times as the Bank may request, to enter and
inspect the Property and such books and records; and (iii) promptly upon request
provide to the Bank such financial statements and information regarding
Mortgagor, the Property and the Leases as the Bank may request;
(e) Mortgagor will at all times keep the Property in good and
first rate repair and condition (reasonable wear and tear excepted but damage
from casualty not excepted) and will not commit or permit any strip, waste,
impairment, deterioration or alteration of the Property or any part thereof; and
(f) Mortgagor shall comply with, and not modify the terms and
conditions of, any prior mortgage affecting the Property or any note or other
obligation secured thereby and shall not permit the holder of any such prior
mortgage to advance any additional sums pursuant to such mortgage which would
constitute a lien superior to the lien of this Mortgage except with the prior
written consent of the Bank.
2.5 Payments. The Mortgagor covenants to pay when due:
(a) All federal, state or other taxes, betterment assessments and
other governmental levies, water rates, sewer charges, insurance premiums, and
other charges on the Property, this Mortgage or any Obligation secured hereby or
that could, if unpaid, result in a lien on the Property or on any interest
therein; and
(b) All amounts when due under the Note and each other instrument
evidencing, securing or relating to any of the Obligations and under any
agreement to which Mortgagor is a party or by which Mortgagor is bound,
including without limitation, any mortgage encumbering the Property.
-5-
Mortgagor shall have the right to contest any notice, lien, encumbrance, claim,
tax, charge, betterment assessment or premium filed or asserted against or
relating to the Property; provided that it contests the same diligently and in
good faith and by proper proceedings and, at the Bank's request, provides the
Bank with adequate security, in the Bank's reasonable judgment, against the
enforcement thereof. Mortgagor shall furnish to the Bank the receipted real
estate tax bills or other evidence of payment of real estate taxes for the
Property within ten (10) days prior to the date from which interest or penalty
would accrue for nonpayment thereof as well as evidence of all other payments
referred to above within fifteen (15) days after written request therefor by the
Bank. If the Mortgagee fails to furnish such evidence of payment then the Bank
may, at the Mortgagor's expense, apply for and obtain municipal lien
certificates, and other evidence of real estate tax payments.
2.6 Notices: Notice of Default. Mortgagor will deliver to the Bank,
promptly upon receipt of the same, copies of all notices or other documents it
receives that materially affect the Property or its use or claim that the
Mortgagor is in default in the performance or observance of any of the terms
hereof or that the Mortgagor or any tenant is in default of any terms of the
Leases. The Mortgagor further agrees to deliver to the Bank written notice
promptly upon the occurrence of any Event of Default hereunder, or event which
with the giving of notice or lapse of time or both would constitute an Event of
Default.
3. Takings. In case of any condemnation for public use of, or any
damage by reason of the action of any public or governmental entity or authority
to, all or any part of the Property (a "Taking"), or the commencement of any
proceedings or negotiations that might result in a Taking, Mortgagor shall
promptly give written notice to the Bank, describing the nature and extent
thereof. The Bank may, at its option, appear in any proceeding for a Taking or
any negotiations relating to a Taking and Mortgagor shall promptly give to the
Bank copies of all notices, pleadings, determinations and other papers relating
thereto. The Mortgagor shall in good faith and with due diligence and by proper
proceedings file and prosecute its claims for any award or payment on account of
any Taking. The awards of damages on account of any Taking shall be paid to the
Mortgagor. Such awards shall be applied to or toward the restoration (within a
reasonable time) of that part of the Property that remains or towards the
Obligations.
4. Insurance Proceeds. Mortgagor shall have the right to apply the
proceeds of any insurance resulting from any loss with respect to the Property
to repair (within a reasonable time) the damaged part of the Property. Any
excess insurance proceeds shall be applied to the Obligations in such order as
the Bank may determine.
-6-
5. Certain Rights of Bank.
5.1 Advances. If Mortgagor fails to pay or perform any of its
obligations hereunder then, after 10 days notice (except in an emergency) to
Mortgagor, the Bank may in its sole discretion do so. Such payments may include,
but are not limited to, payments for taxes, assessments and other governmental
levies, water rates, insurance premiums, maintenance, repairs or improvements
constituting part of the Property. Notwithstanding the foregoing, the Bank shall
not make any payment described in Section 2.5 so long as the Mortgagor is then
in compliance with that Section and no Event of Default exists.
5.2 Legal Proceedings. The Bank shall have the right, but not the
duty, to intervene or otherwise participate in any legal or equitable proceeding
that, in the Bank's reasonable judgment, might affect the Property or any of the
rights created or secured by this Mortgage. The Bank shall have such right
whether or not there shall have occurred an Event of Default hereunder.
6. Defaults and Remedies.
6.1 Events of Default. Any Event of Default under and as defined in
the Loan Agreement between the Bank and Mortgagor dated as of the date hereof
shall constitute an "Event of Default" under this Mortgage.
6.2 Remedies. On the occurrence of any Event of Default the Bank may,
at any time thereafter, at its option and, to the extent permitted by applicable
law, without notice, exercise any or all of the following remedies:
(a) Declare the Obligations due and payable, and the Obligations
shall thereupon become immediately due and payable, without presentment,
protest, demand or notice of any kind, all of which are hereby expressly waived
by Mortgagor;
(b) Take possession of the Property (including all records and
documents pertaining thereto) and exclude Mortgagor therefrom, and operate the
Property as a mortgagee in possession with all the powers as could be exercised
by a receiver or as otherwise provided herein or by applicable law;
(c) Receive and collect all rents, income and profits from the
Property, including as may arise under the Leases, and Mortgagor appoints the
Bank as its true and lawful attorney with the power for the Bank in its own name
and capacity to demand and collect such rents, income and profits and take any
action that Mortgagor is authorized to take under the Leases. Lessees under the
Leases are hereby authorized and directed, following notice from the Bank, to
pay all amounts due Mortgagor under the Leases to the Bank, whereupon such
lessees shall be
-7-
relieved of any and all duty and obligation to Mortgagor with respect to such
payments so made;
(d) Sell the Property or any part thereof or interest therein
pursuant to exercise of its STATUTORY POWER OF SALE or otherwise at public
auction on terms and conditions as the Bank may determine or otherwise foreclose
this Mortgage in any manner permitted by law, and upon such sale, Mortgagor
shall execute and deliver such instruments as the Bank may request in order to
convey and transfer all of Mortgagor's interest in the Property, and the same
shall operate to divest all rights, title and interest of Mortgagor in and to
the Property. In the event this Mortgage shall include more than one parcel of
property or subdivision (each hereinafter called a "portion"), the Bank shall,
in its sole and exclusive discretion, be empowered to foreclose upon any such
portion without impairing its right to foreclose subsequently upon any other
portion or the entirety of the Property from time to time thereafter;
(e) Cause one or more environmental assessments to be taken,
arrange for the clean-up of any Hazardous Substances, or otherwise cure
Mortgagor's failure to comply with any statute, regulation or ordinance relating
to the presence or clean-up of Hazardous Substances; provided that the exercise
of any of such remedies shall not be deemed to have relieved Mortgagor from any
responsibility therefor or given the Bank "control" over the Property or cause
the Bank to be considered to be a mortgagee in possession, "owner" or "operator"
of the Property for purposes of any applicable law, rule or regulation
pertaining to Hazardous Substances; and
(f) Take such other actions or proceedings as the Bank deems
necessary or advisable to protect its interest in the Property and ensure
payment and performance of the Obligations including, without limitation,
appointment of a receiver (and Mortgagor hereby waives any right to object to
such appointment) and exercise of any of the Bank's remedies provided in the
Note or in any document evidencing, securing or relating to any of the
Obligations or available to a secured party under the Uniform Commercial Code of
Massachusetts or under other applicable law.
This Mortgage is upon the STATUTORY CONDITION, for any breach of which
the Bank shall have the STATUTORY POWER OF SALE and any other remedies provided
by applicable law including, without limitation, the right to pursue a judicial
sale of the Property or any portion thereof by deed, assignment or otherwise.
Mortgagor agrees and acknowledges that the acceptance by the Bank of any
payments from Mortgagor after the occurrence of any Event of Default, the
exercise by the Bank of any remedy set forth herein or the commencement of
foreclosure proceedings against the Property shall not waive the Bank's right to
foreclose or operate as a bar or estoppel to the exercise of any other rights or
remedies of the Bank. Mortgagor agrees and acknowledges that the Bank, by making
-8-
payments or incurring costs described herein, shall be subrogated to any right
of Mortgagor to seek reimbursement from any third parties including without
limitation, any predecessor in interest to Mortgagor's title or other party who
may be responsible under any law, regulation or ordinance relating to the
presence or clean-up of Hazardous Substances.
6.3 Cumulative Rights and Remedies. All of the foregoing rights,
remedies and options are cumulative and in addition to any rights the Bank might
otherwise have, whether at law or by agreement and may be exercised separately
or concurrently. Mortgagor further agrees that the Bank may exercise any or all
of its rights or remedies set forth herein without having to pay Mortgagor any
sums for use or occupancy of the Property.
6.4 Mortgagor's Waiver of Certain Rights. To the extent permitted by
applicable law, Mortgagor hereby waives the benefit of all present and future
laws (i) providing for any appraisal before sale of any portion of the Property
or (ii) in any way extending the time for the enforcement of the collection of
the Obligations or creating or extending a period of redemption from any sale
made hereunder.
7. Miscellaneous.
7.1 Payments by the Bank. To the extent permitted by applicable law,
Mortgagor shall pay to the Bank, on demand, all reasonable expenses, (including
reasonable attorneys' fees and expenses and reasonable consulting, accounting,
appraisal, brokerage and similar professional fees and charges) actually
incurred by the Bank, in connection with the Bank's exercise, preservation or
enforcement of any of its rights, remedies and options set forth in this
Mortgage (including without limitation any amounts expended pursuant to Sections
5.1 and 6.2(e) hereof) and in connection with any litigation, proceeding or
dispute whether arising hereunder or otherwise relating to the Obligations,
together with interest thereon to the extent permitted by applicable law until
paid in full by Mortgagor at a rate per annum equal to three percent (3 %) above
the rate of interest per annum announced from time to time by The First National
Bank of Boston at its head office as its Base Rate. Any amounts owed by
Mortgagor hereunder shall be, until paid, part of the Obligations, and the Bank
shall be entitled, to the extent permitted by law, to receive and retain such
amounts in any action for a deficiency against or redemption by the Mortgagor,
or any accounting for the proceeds of a foreclosure sale or of insurance
proceeds. All references to "attorneys" in this Section 7 and elsewhere in this
Mortgage shall include without limitation any attorney or law firm engaged by
the Bank and the Bank's in-house counsel, and all references to "fees and
expenses" in this Mortgage shall include without limitation any fees of such
attorney or law firm and any allocated charges and allocation costs of the
Bank's in-house counsel. The obligations of Mortgagor under this Section 7.1
shall survive any payment or satisfaction of any of the other Obligations.
-9-
7.2 No Waiver or Release. No failure of the Bank to exercise or delay
by the Bank in exercising any right or remedy or option provided for herein or
otherwise shall be deemed to be a waiver of that right, remedy or option or of
any other right, remedy or option. No sale of all or any of the Property, no
forbearance on the part of the Bank, no release or partial release of any of the
Property, and no extension of the time for the payment of the whole or any part
of any of the obligations or any other indulgence given by the Bank to the
Mortgagor or any other person or entity, shall operate to release or in any
manner affect the lien of this Mortgage or the original liability of the
Mortgagor except to the extent specifically provided in any written instrument
signed by the Bank accomplishing any of the foregoing. Notice of any such
extensions or indulgences is waived by the Mortgagor. This Mortgage may not be
waived, changed or discharged orally, but only by an agreement in writing signed
by the Bank, and any oral waiver, change or discharge of any provision of this
Mortgage shall be without authority and of no force and effect. A waiver on any
one occasion shall be limited to its express terms and conditions and the
circumstances giving rise to such waiver and shall not be construed to be a bar
to or waiver of any right on any future occasion.
7.3 Notices. Any notice or other communication hereunder to any party
hereto shall be by telegram, telecopy, telex, delivery in hand or by courier, or
registered or certified mail (return receipt requested) and shall be deemed to
have been given or made when telegraphed, telexed, telecopied (and confirmed
received), delivered in hand or by courier, or three days after being deposited
in the mails, postage prepaid, registered or certified, addressed to each party
as follows (or at any other address that such party may hereafter specify to the
other parties in writing):
(a) If to the Bank:
The First National Bank of Boston
100 Federal Street
Boston, Massachusetts 02110
Attn: Ms. Sharon A. Stone, Director
Telecopier No. (617) 434-4048
with a copy to:
Arlene L. Bender, Esq.
Foley, Hoag & Eliot
One Post Office Square
Boston, Massachusetts 02109
Telecopier No. (617) 482-7347
-10-
(b) If to the Mortgagor:
Six Shattuck Road
Andover, Massachusetts 01810
Attn: Mr. Robert F. O'Brien, Treasurer
Telecopier No.
with a copy to:
Richard S. Chute, Esq.
Hill & Barlow
One International Place
Boston, Massachusetts 02110
Telecopier No. (617) 439-3580
7.4 Mortgagor's Waivers. Mortgagor waives presentment, demand, notice,
protest, and all other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Mortgage (except for
such demands and notices as are specifically required to be provided to
Mortgagor under this Mortgage) and assents to any extension or postponement of
the time of payment or performance or any other indulgence with respect to any
of the Obligations, to any substitution, exchange or release of any collateral
for any of the Obligations and/or to the addition or release of any other party
or person primarily or secondarily liable hereunder or in connection with any of
the Obligations.
7.5 Entire Agreement; Severability; Captions. The terms and conditions
of this Mortgage constitute the entire agreement, and supersede all prior
agreements and understandings, both written and oral, with respect to the
subject matter hereof. The invalidity of any provisions of this Mortgage shall
in no way affect the validity of any other provision hereof. The failure of the
Bank to perfect its lien on or security interest in any of the Property shall
not affect its rights in the remainder of the Property. Section and subsection
captions are for convenience of reference only, are not a part of this Mortgage
and shall not affect the interpretation hereof.
7.6 Successors. This Mortgage shall be binding upon each of the
parties executing this Mortgage and their respective successors, administrators
and assigns, and shall inure to the benefit of the parties hereto and the
successors and assigns of the Bank. The term "Bank" shall include any subsequent
holder of this Mortgage by assignment or otherwise.
7.7 Joint and Several Liability. If more than one party executes this
Mortgage the term "Mortgagor" shall mean each and every one of them, and each of
them shall be jointly and severally liable hereunder.
-11-
7.8 Governing Law Jurisdiction. This Mortgage shall take effect as a
contract executed under seal and shall be interpreted in accordance with and
governed by the laws of The Commonwealth of Massachusetts (other than its rules
governing choice or conflicts of laws). Each party signing this Mortgage submits
to personal jurisdiction in The Commonwealth of Massachusetts and waives any and
all rights to object to such jurisdiction. Each such party agrees that service
of process may be made and personal jurisdiction obtained by serving Mortgagor
at any location provided in Section 7.3 hereof.
7.9 JURY WAIVER. THE BANK (BY ITS ACCEPTANCE OF THIS MORTGAGE) AND THE
MORTGAGOR AGREE THAT NEITHER OF THEM, INCLUDING ANY ASSIGNEE OR SUCCESSOR SHALL
SEEK A JURY TRIAL IN ANY LAWSUIT, PROCEEDING, COUNTERCLAIM, OR ANY OTHER
LITIGATION PROCEDURE BASED UPON, OR ARISING OUT OF, THIS MORTGAGE, ANY RELATED
INSTRUMENTS, ANY COLLATERAL OR THE DEALINGS OR THE RELATIONSHIP BETWEEN OR AMONG
ANY OF THEM. NEITHER THE BANK NOR THE MORTGAGOR SHALL SEEK TO CONSOLIDATE ANY
SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT
BEEN WAIVED. THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN FULLY DISCUSSED BY THE
BANK AND THE MORTGAGOR, AND THESE PROVISIONS SHALL BE SUBJECT TO NO EXCEPTIONS.
NEITHER THE BANK NOR THE MORTGAGOR HAS AGREED WITH OR REPRESENTED TO THE OTHER
THAT THE PROVISIONS OF THIS PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL
INSTANCES.
EXECUTED under seal as of the date first above written.
MORTGAGOR:
MKS INSTRUMENTS, INC.
By:_________________________________
Title:______________________________
-12-
COMMONWEALTH OF MASSACHUSETTS
Suffolk, ss. November__, 1993
Then personally appeared the above named ___________________________ of
MKS Instruments, Inc., and acknowledged that the foregoing is the free act and
deed of said corporation, before me,
____________________________________
Notary Public
Name:
My commission expires:
-13-
AGREEMENT REGARDING LOST PROMISSORY NOTES
In consideration of the execution and delivery to the First National
Bank of Boston (the "Bank") by MKS Instruments, Inc. (the "Company") of
replacement notes with respect to the Term Note dated November 1, 1993 in the
principal amount of $10,000,000 payable to the order of the Bank and the Demand
Revolving Credit Note dated November 1, 1993 in the principal amount of
$7,000,000 payable to the order of the Bank (the "Original Notes"), the Bank and
the Company hereby agree as follows:
1. The Bank has been unable to locate the Original Notes, which were
delivered by the Company to the Bank on November 1, 1993. The Bank has made or
caused to be made diligent efforts to find and recover the Original Notes, but
has been unable to do so, and accordingly believes the Original Notes are lost
or misplaced.
2. The Bank is, and has been, the rightful and unconditional owner of
the Original Notes at all times since issuance of the Original Notes to it on
November 1, 1993. The Original Notes have not been endorsed by the Bank for
transfer or sold, assigned, pledged, hypothecated, transferred, or deposited
under any agreement by the Bank, and no instrument or document authorizing such
transfer, sale, assignment, pledge, hypothecation, or deposit of the Original
Notes has been executed by or on behalf of the Bank.
3. The Bank agrees that if the Original Notes shall ever be found to
be in the custody and control of the Bank or recovered by the Bank, the Bank
will immediately and without consideration surrender the Original Notes to the
Company or its successor for cancellation.
4. The Bank agrees to indemnify and hold harmless the Company and its
successors and assigns (collectively, "Indemnitees") from and against any and
all liability, obligation, loss, damage and expense (including reasonable
attorneys' fees) arising from or on account of the sale, assignment, transfer,
hypothecation, pledge or other disposition of the Original Notes, by operation
of law or otherwise, by or for the Bank to any person other than the Company.
The Company agrees (i) that it will give prompt notice to the Bank upon
presentation to the Company of either Original Note or after receiving a claim
in writing against it of any claim against it as to which recovery may be sought
against the Bank under the foregoing indemnity and (ii) if such claim shall
arise from the claim of a third party, that it will permit the Bank to assume
the defense of any such claim or any litigation resulting from such claim. If
the Bank assumes the defense of such claim or any litigation resulting
therefrom, the obligations of the Bank hereunder as to such claim shall be to
take all steps that the Bank in its sole discretion deems necessary in the
defense, compromise or settlement of such claim or litigation and to pay or
reimburse the Company for the amount of any settlement approved by the Bank or
any judgment in connection with such claim or litigation and all costs and
expenses of the Company associated therewith. The Company shall cooperate fully
to make available to the Bank, at the
Bank's expense, all pertinent information and witnesses under its control. A
final determination of any such action, suit, proceeding, claim, demand or
assessment through legal proceedings shall be binding and conclusive upon the
parties hereto as to the validity or invalidity, as the case may be, of such
claim against the Bank.
5. The Bank agrees to keep this Agreement as an official record of the
Bank and to maintain a copy of this Agreement in the loan file for the Company.
6. The Bank represents and warrants that this Agreement has been duly
authorized by all necessary action on the part of the Bank.
IN WITNESS WHEREOF, the undersigned have executed this Agreement under
seal as of the 8th day of March, 1994.
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Sharon A. Stone
--------------------------------
Title: Director
-----------------------------
MKS INSTRUMENTS, INC.
By: /s/ Robert F. O'Brien
--------------------------------
Title: Treasurer
-----------------------------
-2-
MKS INSTRUMENTS, INC.
FIRST AMENDMENT
TO LOAN AGREEMENT
This First Amendment (this "Amendment") dated as of June 30, 1994 amends the
Loan Agreement dated as of November 1, 1993 (the "Loan Agreement"), between MKS
INSTRUMENTS, INC. (the "Borrower") and THE FIRST NATIONAL BANK OF BOSTON (the
"Bank"). Capitalized terms used herein but not otherwise defined shall have the
meanings assigned to them in the Loan Agreement.
WHEREAS, the Borrower and the Bank have executed the Loan Agreement
providing for a revolving credit facility for borrowings by the Borrower in
amounts up to $7,000,000; and
WHEREAS, the Borrower has requested, and the Bank has agreed, to extend
the maturity of the credit facilities for an additional one-year period, on the
terms and conditions set forth below;
NOW, THEREFORE, the Bank and the Borrower agree as follows:
Section 1. Amendment to the Loan Agreement. Section 1.1.46 of the Loan
Agreement is hereby amended by deleting the date "June 30, 1994" appearing
therein in the definition of "Revolver Termination Date" and substituting
therefor the date "June 30, 1995".
Section 2. Representations and Warranties. The Borrower hereby
represents and warrants as follows:
(a) The execution and delivery of this Amendment and the performance of
this Amendment, the Loan Agreement as amended hereby and each of the other Loan
Documents, and the transactions contemplated hereby and thereby, have been
authorized by all necessary corporate actions of the Borrower. This Amendment,
the Loan Agreement as amended hereby and each of the other Loan Documents
constitute the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms.
(b) The Borrower has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Amendment, the Loan
Agreement as amended hereby and each of the other Loan Documents. Neither the
authorization, execution, delivery or performance by the Borrower of this
Amendment nor the performance of the Loan Agreement as amended hereby or any
other Loan Document nor the performance of the transactions contemplated hereby
or thereby violates or will violate any provision of the corporate charter or
by-laws of
the Borrower, or does or will, with the passage of time or the giving of notice
or both, result in a breach of or a default under, or require any consent under
or result in the creation of any lien, charge or encumbrance upon any property
or assets of the Borrower pursuant to, any material instrument, agreement or
other document to which the Borrower is a party or by which the Borrower or any
of its properties may be bound or affected.
(c) The execution and delivery by the Borrower of this Amendment
and the performance by the Borrower of the Loan Agreement as amended hereby and
the Loan Documents do not and will not violate any provision of law or
regulation applicable to the Borrower, or any writ, order or decree of any court
or governmental or regulatory authority or agency applicable to the Borrower.
Section 3. Conditions to Effectiveness. The effectiveness of this
Amendment is conditioned on the following:
(a) the Borrower and the Bank shall each have executed and delivered a
counterpart of this Amendment;
(b) the representations and warranties contained in Article V of the
Loan Agreement shall be true and correct in all material respects as of the date
hereof as though made on and as of the date hereof; and
(c) no Default or Event of Default under the Loan Agreement shall have
occurred and is continuing.
Section 4. Miscellaneous.
(a) On and after the date hereof, each reference in the Loan Agreement
to "this Agreement" or words of like import shall mean and be deemed to be a
reference to the Loan Agreement as amended hereby.
(b) Except as amended and modified hereby, the Loan Agreement is in all
respects ratified and confirmed as of the date hereof, and the terms, covenants
and agreements therein shall remain in full force and effect.
(c) This Amendment and the modifications to the Loan Agreement set
forth herein shall be deemed to be a document executed under seal and shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
-2-
(d) This Amendment may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date and the year first above written.
MKS INSTRUMENTS, INC.
By: /s/ Robert F. O'Brien
--------------------------------
Title: Treasurer
-----------------------------
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Sharon A. Stone
--------------------------------
Title: Director
-----------------------------
-3-
MKS INSTRUMENTS, INC.
SECOND AMENDMENT
TO LOAN AGREEMENT
This Second Amendment (this "Amendment") dated as of October 27, 1994 amends the
Loan Agreement dated as of November 1, 1993, as amended by the First Amendment
dated as of June 30, 1994 (as so amended, the "Loan Agreement"), between MKS
INSTRUMENTS, INC. (the "Borrower") and THE FIRST NATIONAL BANK OF BOSTON (the
"Bank"). Capitalized terms used herein but not otherwise defined shall have the
meanings assigned to them in the Loan Agreement.
WHEREAS, the Borrower and the Bank have executed the Loan Agreement
providing for the Term Loan in the original principal amount of $10,000,000; and
WHEREAS, the Borrower has requested, and the Bank has agreed, to amend
the interest rate applicable to the Term Loan from time to time, and modify
certain of the provisions with respect to the payment of interest thereon, on
the terms and conditions set forth below;
NOW, THEREFORE, the Bank and the Borrower agree as follows:
Section 1. Amendments to the Agreement.
(a) Section 2.5 of the Loan Agreement is hereby amended by deleting the
phrase "30, 60, 90, 120, 150 or 180 days" and substituting therefor the phrase
"one, two, three, four, five or six months".
(b) Section 3.2 of the Loan Agreement whereby amended as follows:
(1) by deleting Section 3.2.1(i) and replacing it with the following:
"(i) During any period in which the Borrower maintains a Cash
Flow Ratio in excess of 1.35 to 1 but less than 1.75 to 1 and a
Debt-to-Net Worth Ratio in excess of 1.35 to 1:
(a) the LIBOR Rate plus 1.75% or
(b) the Long Term Funds Rate plus 1.75%."; and
(2) adding new a Section 3.2.1(iii) as follows:
"(iii) During any period in which the Borrower maintains a
Cash Flow Ratio in excess of 1.75 to 1 and a Debt-to-Net Worth
Ratio not in excess of 1.35 to 1:
(a) the LIBOR Rate plus 1.40% or
(b) the Long Term Funds Rate plus 1.40%."
(c) Section 3.2.4 of the Loan Agreement is hereby amended by
deleting the phrase "30, 60, 90, 120, 150 or 180 days" and substituting
therefor the phrase "one, two, three, four, five or six months".
Section 2. Representations and Warranties.
(a) The execution and delivery of this Amendment and the performance of
this Amendment, the Loan Agreement as amended hereby and each of the other Loan
Documents, and the transactions contemplated hereby and thereby, have been
authorized by all necessary corporate actions of the Borrower. This Amendment,
the Loan Agreement as amended hereby and each of the other Loan Documents
constitute the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms.
(b) The Borrower has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Amendment, the Loan
Agreement as amended hereby and each of the other Loan Documents. Neither the
authorization, execution, delivery or performance by the Borrower of this
Amendment nor the performance of the Loan Agreement as amended hereby or any
other Loan Document nor the performance of the transactions contemplated hereby
or thereby violates or will violate any provision of the corporate charter or
by-laws of the Borrower, or does or will, with the passage of time or the giving
of notice or both, result in a breach of or a default under, or require any
consent under or result in the creation of any lien, charge or encumbrance upon
any property or assets of the Borrower pursuant to, any material instrument,
agreement or other document to which the Borrower is a party or by which the
Borrower or any of its properties may be bound or affected.
(c) The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of the Loan Agreement as amended hereby and the
Loan Documents do not and will not violate any provision of law or regulation
applicable to the Borrower, or any writ order or decree of any court or
governmental or regulatory authority or agency applicable to the Borrower.
Section 3. Conditions to Effectiveness. The effectiveness of this
Amendment is conditioned on the following:
(a) the Borrower and the Bank shall each have executed and delivered a
counterpart of this Amendment;
-2-
(b) the representations and warranties contained in Article V of the
Loan Agreement shall be true and correct in all material respects as of the date
hereof as though made on and as of the date hereof; and
(c) no Default or Event of Default under the Loan Agreement shall have
occurred and is continuing.
Section 4. Miscellaneous.
(a) On and after the date hereof; each reference in the Loan Agreement
to "this Agreement" or words of like import shall mean and be deemed to be a
reference to the Loan Agreement as amended hereby.
(b) Except as amended and modified hereby, the Loan Agreement is in all
respects ratified and confirmed as of the date hereof; and the terms, covenants
and agreements therein shall remain in full force and effect.
(c) This Amendment and the modifications to the Loan Agreement set
forth herein shall be deemed to be a document executed under seal and shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
(d) This Amendment may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
as of the date and the year first above written.
MKS INSTRUMENTS, INC.
By: /s/ Robert F. O'Brien
--------------------------------
Title: Treasurer
-----------------------------
-3-
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Sharon A. Stone
--------------------------------
Title: Vice President and Director
-----------------------------
-4-
MKS INSTRUMENTS, INC.
THIRD AMENDMENT
TO LOAN AGREEMENT
This Third Amendment (this "Amendment") dated as of June 30, 1995 amends the
Loan Agreement dated as of November 1, 1993, as amended (the "Loan Agreement"),
between MKS INSTRUMENTS, INC. (the "Borrower") and THE FIRST NATIONAL BANK OF
BOSTON (the "Bank"). Capitalized terms used herein but not otherwise defined
shall have the meanings assigned to them in the Loan Agreement.
WHEREAS, the Borrower and the Bank have executed the Loan Agreement
providing for a revolving credit facility for borrowings by the Borrower in
amounts up to $7,000,000; and
WHEREAS, the Borrower has requested, and the Bank has agreed, to extend
the maturity of the credit facilities for an additional ninety (90) day period,
on the terms and conditions set forth below;
NOW, THEREFORE, the Bank and the Borrower agree as follows:
Section 1. Amendment to the Loan Agreement. Section 1.1.46 of the Loan
Agreement is hereby amended by deleting the date "June 30, 1995 appearing
therein in the definition of "Revolver Termination Date" and substituting
therefore the date "September 30, 1995".
Section 2. Representations and Warranties. The Borrower hereby
represents and warrants as follows:
(a) The execution and delivery of this Amendment and the performance of
this Amendment, the Loan Agreement as amended hereby and each of the other Loan
Documents, and the transactions contemplated hereby and thereby, have been
authorized by all necessary corporate actions of the Borrower. This Amendment,
the Loan Agreement as amended hereby and each of the other Loan Documents
constitute the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms.
(b) The Borrower has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Amendment, the Loan
Agreement as amended hereby and each of the other Loan Documents. Neither the
authorization, execution, delivery or performance by the Borrower of this
Amendment nor the performance of the Loan Agreement as amended hereby or any
other Loan Document nor the performance of the transactions contemplated hereby
or thereby violates or will violate any provision of the corporate charter or
by-laws of the Borrower, or does or will, with the passage of time or the giving
of notice or both, result in a breach of or a default under, or require any
consent under or result in the creation of any lien, charge or encumbrance upon
any property or assets of the Borrower pursuant to, any material instrument,
agreement or other document to which the Borrower is a party or by which the
Borrower or any of its properties may be bound or affected.
(c) The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of the Loan Agreement as amended hereby and the
Loan Documents do not and will not violate any provision of law or regulation
applicable to the Borrower, or any writ, order or decree of any court or
governmental or regulatory authority or agency applicable to the Borrower.
Section 3. Conditions to Effectiveness. The effectiveness of this
Amendment is conditioned on the following:
(a) the Borrower and the Bank shall each have executed and delivered a
counterpart of this Amendment;
(b) the representations and warranties contained in Article V of the
Loan Agreement shall be true and correct in all material respects as of the date
hereof as though made on and as of the date hereof; and
(c) no Default or Event of Default under the Loan Agreement shall have
occurred and is continuing.
Section 4. Miscellaneous.
(a) On and after the date hereto, each reference in the Loan Agreement
to "this Agreement" or words of like import shall mean and be deemed to be a
reference to the Loan Agreement as amended hereby.
(b) Except as amended and modified hereby, the Loan Agreement is in all
respects ratified and confirmed as of the date hereof, and the terms, covenants
and agreements therein shall remain in full force and effect.
(c) This Amendment and the modifications to the Loan Agreement set
forth herein shall be deemed to be a document executed under seal and shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
-2-
(d) This Amendment may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
as of the date and the year first above written.
MKS INSTRUMENTS, INC.
By: /s/ Robert F. O'Brien
--------------------------------
Title: Treasurer
-----------------------------
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Sharon A. Stone
--------------------------------
Title: Director
-----------------------------
-3-
BANK OF BOSTON
July 27, 1995
MKS Instruments, Inc.
Six Shattuck Road
Andover, MA 01810
Attention: Robert F. O'Brien, Treasurer
Ladies and Gentlemen:
WHEREAS, MKS Instruments, Inc. a Massachusetts corporation ("Borrower")
and The First National Bank of Boston ("Lender") are parties to that certain
Loan Agreement dated November 1, 1993, as amended (the "Loan Agreement"); and
WHEREAS, Borrower has signed a letter of intent dated May 17, 1995 (the
"Letter of Intent") which sets forth Borrower's intention to acquire through
merger UTI Instruments Company ("UTI"); and
WHEREAS, Borrower has requested a waiver of Section 8.1(b) of the Loan
Agreement which restricts mergers to allow Borrower, or a wholly-owned
subsidiary of Borrower, to merge with UTI pursuant to the terms of the Letter of
Intent, and Lender has agreed to do so as set forth herein;
NOW, THEREFORE, the Bank hereby waives compliance with Section 8.1(b)
of the Loan Agreement to permit the merger of Borrower, or a wholly-owned
subsidiary of Borrower, with UTI pursuant to the terms of the Letter of Intent.
This waiver is subject to Borrower, or a wholly-owned subsidiary of Borrower,
completing the merger with UTI on or before September 30, 1995.
This waiver herein given shall not operate as a waiver of any other
Default or Event of Default, if any, now existing or hereafter arising. Borrower
represents that as of the date hereof all of the representations and warranties
set forth in Article V of the Loan Agreement are true and correct.
In consideration of the foregoing, Borrower acknowledges that it has no
claims, counterclaims, offsets, or defenses against Lender with respect to the
Loan Agreement or otherwise.
IN WITNESS WHEREOF, Lender has caused this document to be executed as a document
under seal by its duly authorized officer as of this 27th day of July, 1995.
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Sharon A. Stone
--------------------------------
Title: Director
-----------------------------
ASSENTED TO:
MKS INSTRUMENTS
By: /s/ Robert F. O'Brien
--------------------------------
Title: Treasurer
-----------------------------
Date:_______________________________
-2-
BANK OF BOSTON
September 25, 1995
MKS Instruments, Inc.
Six Shattuck Road
Andover, MA 01810
RE Loan Agreement dated November 1, 1993 by and between MKS
Investments, Inc. a Massachusetts corporation ("Borrower") and
The First National Bank of Boston ("Lender")
Attention: Robert F. O'Brien, Treasurer
Ladies and Gentlemen:
In a letter dated July 27, 1995 the Lender agreed, provided the merger
was completed on or before September 30, 1995, to waive Section 8.1 (b) to allow
the Borrower to merge with UTI Instruments Company.
The Borrower has requested that the Lender extend the time period for
completion of the merger from September 30, 1995 to October 31, 1995 and the
Lender hereby so agrees.
This waiver herein given shall not operate as a waiver of any other
Default or Event of Default, if any, now existing or hereafter arising. The
Borrower represents that as of the date hereof all of the representations and
warranties set forth in Article V of the Loan Agreement are true and correct.
In consideration of the foregoing, Borrower acknowledges that it has no
claims, counterclaims, offsets, or defenses against Lender with respect to the
Loan Agreement or otherwise.
IN WITNESS WHEREOF, Lender has caused this document to be executed as a document
under seal by its duly authorized officer as of this 25th day of September,
1995.
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Sharon A. Stone
--------------------------------
Title: Director
-----------------------------
ASSENTED TO:
MKS INSTRUMENTS
By: /s/ Robert F. O'Brien
--------------------------------
Title: Treasurer
-----------------------------
Date: 9/26/95
------------------------------
-2-
MKS INSTRUMENTS, INC.
FOURTH AMENDMENT
TO LOAN AGREEMENT
This Fourth Amendment (this "Amendment") dated as of September 30, 1995 amends
the Loan Agreement dated as of November 1, 1993, as amended (the "Loan
Agreement"), between MKS INSTRUMENTS, INC. (the "Borrower") and THE FIRST
NATIONAL BANK OF BOSTON (the "Lender"). Capitalized terms used herein but not
otherwise defined shall have the meanings assigned to them in the Loan
Agreement.
WHEREAS, the Borrower and the Lender have executed the Loan Agreement
providing for a revolving credit facility for borrowings by the Borrower in
amounts up to $7,000,000; and
WHEREAS, the Borrower has requested, and the Lender has agreed, to
extend the maturity of the credit facilities on the terms and conditions set
forth below;
NOW, THEREFORE, the Bank and the Borrower agree as follows:
Section 1. Amendment to the Loan Agreement.
(a) Section 1.1.46 of the Loan Agreement is hereby amended by deleting
the date "September 30, 1995" appearing therein in the definition of "Revolver
Termination Date" and substituting therefore the date "June 30, 1996".
(b) Section 1.1.34 of the Loan Agreement is hereby amended by adding
"the Letter of Credit Agreements" after "the Notes,".
(c) Section 2.1 of the Loan Agreement is hereby amended by deleting the
existing language and substituting the following:
2.1.1 Subject to the terms and conditions of this Agreement, the Lender
hereby agrees to make Advances from time to time to the Borrower during the
period from the date hereof to the Revolver Termination Date (or such earlier
date on which the Lender shall have demanded payment of the Revolving Credit
Note) in an aggregate outstanding amount not to exceed at any time $7,000,000,
less the face amount of outstanding Letters of Credit plus unpaid LC Draws (as
defined in Section 2.1.2). The Lender shall have the absolute discretion to make
such Advances as it deems appropriate and to demand repayment of Advances at any
time. Each Advance shall, at the option of the Borrower, be a Base Rate Loan, a
LIBOR Loan or a Money Market Rate Loan provided, however, that no LIBOR Loan or
Money Market Rate Loan shall be made at any time in a principal amount of less
than $1,000,000.
2.1.2 Subject to the execution and delivery by the Borrower of a
letter of credit application and agreement and related documents in form
satisfactory to the Lender (each such "Letter of Credit Agreement"), and subject
to the terms of this Agreement, the Lender agrees to issue for the account of
the Borrower one or more standby letters of credit (the "Letters of Credit")
from time to time, from and after the date hereof with expiration dates not
later than the earlier of one year from the date of issuance or the Revolver
Termination Date, provided the sum of the aggregate face amount of outstanding
Letters of Credit plus unpaid LC Draws shall not exceed $250,000 after giving
effect to such issuance. The Lender shall have absolute discretion to issue such
Letters of Credit. The Borrower shall pay to the Lender upon the issuance of
each Letter of Credit, a Letter of Credit fee equal to 1.25% per annum of the
face amount of such Letter of Credit (pro-rated for the number of days such
Letter of Credit is outstanding). The Borrower shall also pay to the Lender, on
demand from time to time, such fees and expenses as are customarily charged by
the Bank in connection with the opening, amendment, negotiation and
administration of each Letter of Credit. The Borrower shall pay the Lender for
draws made on the Letters of Credit ("LC Draws") and other amounts relating to
the Letters of Credit due from time to time in accordance with the Letter of
Credit Agreements. If at any time the sum of the aggregate amount of Revolving
Credit Loans plus the aggregate face amount of outstanding Letters of Credit and
unpaid LC Draws shall exceed the Revolving Credit Loan, the Borrower shall
immediately pay cash to the Lender in such amount as shall be necessary to
eliminate such excess.
(d) Section 9.2 of the Loan Agreement is hereby amended by adding the
following:
Upon the Revolver Termination Date, or the acceleration of the Revolving Credit
Note, the Borrower hereby agrees to pay to the Lender an amount equal to the
face amount of the then outstanding Letters of Credit, which amount shall be
held by the Lender as cash collateral for all LC Draws. The Borrower hereby
grants to the Bank a security interest in and pledge of such cash collateral to
secure all such LC Draws and other Obligations relating to the Letters of
Credit.
Section 2. Representations and Warranties. The Borrower hereby
represents and warrants as follows:
(a) The execution and delivery of this Amendment and the performance of
this Amendment, the Loan Agreement as amended hereby and each of the other Loan
Documents, and the transactions contemplated hereby and thereby, have been
authorized by all necessary corporate actions of the Borrower. This Amendment,
the Loan Agreement as amended hereby and each of the other Loan Documents
constitute the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms.
-2-
(b) The Borrower has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Amendment, the Loan
Agreement as amended hereby and each of the other Loan Documents. Neither the
authorization, execution, delivery or performance by the Borrower of this
Amendment nor the performance of the Loan Agreement as amended hereby or any
other Loan Document nor the performance of the transactions contemplated hereby
or thereby violates or will violate any provision of the corporate charter or
by-laws of the Borrower, or does or will, with the passage of time or the giving
of notice or both, result in a breach of or a default under, or require any
consent under or result in the creation of any lien, charge or encumbrance upon
any property or assets of the Borrower pursuant to, any material instrument,
agreement or other document to which the Borrower is a party or by which the
Borrower or any of its properties may be bound or affected.
(c) The execution and delivery by the Borrower of this Amendment and
the performance by the Borrower of the Loan Agreement as amended hereby and the
Loan Documents do not and will not violate any provision of law or regulation
applicable to the Borrower, or any writ, order or decree of any court or
governmental or regulatory authority or agency applicable to the Borrower.
Section 3. Conditions to Effectiveness. The effectiveness of this
Amendment is conditioned on the following:
(a) the Borrower and the Bank shall each have executed and delivered a
counterpart of this Amendment;
(b) the representations and warranties contained in Article V of the
Loan Agreement shall be true and correct in all material respects as of the date
hereof as though made on and as of the date hereof; and
(c) no Default or Event of Default under the Loan Agreement shall have
occurred and is
Section 4. Miscellaneous.
(a) On and after the date hereof, each reference in the Loan Agreement
to "this Agreement" or words of like import shall mean and be deemed to be a
reference to the Loan Agreement as amended hereby.
(b) Except as amended and modified hereby, the Loan Agreement is in all
respects ratified and confirmed as of the date hereof, and the terms, covenants
and agreements therein shall remain in till force and effect.
-3-
(c) This Amendment and the modifications to the Loan Agreement set
forth herein shall be deemed to be a document executed under seal and shall be
governed by and construed in accordance with the laws of The Commonwealth of
Massachusetts.
(d) This Amendment may be executed in counterparts, each of which shall
be deemed an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed
as of the date and the year first above written.
MKS INSTRUMENTS, INC.
By: /s/ Robert F. O'Brien
--------------------------------
Title: Treasurer
-----------------------------
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Sharon A. Stone
--------------------------------
Title: Director
-----------------------------
-4-
FIFTH AMENDMENT TO LOAN AGREEMENT
This Fifth Amendment to Loan Agreement is entered into as of the 31st
day of October, 1995, by and between The First National Bank of Boston
("Lender") and MKS Instruments, Inc., a Massachusetts corporation ("Borrower").
WHEREAS, the Lender and the Borrower entered into a Loan Agreement as
of November 1, 1993 and have subsequently amended such Loan Agreement (as
amended, the "Loan Agreement");
WHEREAS, the Lender and the Borrower desire to amend the Loan
Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the adequacy and receipt of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. The Loan Agreement is hereby amended by deleting Section 1.1.14.
(the definition of Consolidated Operating Cash Flow) and replacing it with the
following:
1.1.14. "Consolidated Operating Cash Flow" shall mean for any
period, the net income (or loss) for such period (before extraordinary
items and excluding the net income of any business entity that is not a
Subsidiary has an ownership interest unless such net income shall have
actually been received by such company in the form of cash
distributions) of the Borrower and its Subsidiaries before deducting
Interest Expense and taxes and after restoring thereto depreciation of
real and personal property and leasehold improvements and amortization
and after deducting cash taxes paid, Sub S distributions required to
make shareholder tax payments, and capital expenditures incurred,
provided that capital expenditures shall not include real estate
purchases funded by debt.
2. The Loan Agreement is hereby amended by deleting Section 3.2.1. and
replacing it with the following:
3.2.1. Borrower agrees to pay interest in respect of the unpaid
principal amount of the Term Loan from the date of this Agreement until
paid in full as follows. The Term Loan shall bear interest at the Base
Rate unless Borrower desires to pay interest on all or a portion of the
Term Loan at one of the following rates:
(i) During any period in which the Borrower maintains a
Debt-to-Net Worth Ration not in excess of 1.35 to 1:
(a) and a Cash Flow Ration of from 1.35 to 1 to and
including 1.75 to 1, the LIBOR Rate plus 1.60%;
(b) and a Cash Flow Ration of from 1.76 to 1 to and
including 2.0 to 1, the LIBOR Rate plus 1.30%
(c) and a Cash Flow Ration of from 2.01 to 1 to and
including 3.0 to 1, the LIBOR Rate plus 1.10%;
(d) and a Cash Flow Ration in excess of 3.0 to 1, the
LIBOR Rate plus .90%; or
(e) the Long Term Funds Rate plus 1.75%; or
(ii) During any period in which the Borrower maintains a
Debt-to-Net Worth Ration of 1.35 to 1 or more or a Cash Flow
Ratio of less than 1.35 to 1:
(a) the LIBOR Rate plus 2.00%; or
(b) the Long Term Funds Rate plus 1.75%.
3. The Loan Agreement is hereby amended by adding the following clause
(k) to Section 9.1 after clause (j) thereof;
(k) There shall occur any Event of Default under the Loan
Agreement between the Borrower and the Lender dated as of October 31, 1995;
4. As hereby amended, the Loan Agreement is hereby ratified and
confirmed.
IN WITNESS WHEREOF, the parties hereto have causes this Fifth Amendment
to Loan Agreement to be executed as an agreement under seal as of the data first
above written.
Witness: MKS INSTRUMENTS, INC.
/s/ Richard S. Chute By: /s/ Robert F. O'Brien
--------------------------------- --------------------------------
Title: Treasurer
-----------------------------
-2-
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Sharon A. Stone
--------------------------------
Title: Director
-----------------------------
-3-
BANK OF BOSTON
October 11, 1995
Robert F. O'Brien
Treasurer
MKS Instruments, Inc.
Six Shattuck Road
Andover, MA 01810
RE: Loan Agreement dated November 1, 1993, by and between MKS
Instruments, Inc, a Massachusetts corporation ("Borrower") and The
First National Bank of Boston ("Lender"), as amended.
Dear Bob:
The purpose of this letter is to confirm our discussion regarding MKS's
potential acquisition of UTI Instruments Company, Inc ("UTI"). The Loan
Agreement restricts the use of the proceeds of Advances to general working
capital purposes, including acquisitions less than $2,500,000 per annum. You
have indicated that you plan to use the proceeds of Advances to temporarily fund
the acquisition of UTI for an amount to exceed $2,500,000. We hereby agree that
the proceeds of Advances may temporarily fund the UTI acquisition with permanent
funding to be in place on or before March 31, 1996. This agreement is subject to
satisfactory review of the Merger Agreement between MKS Instruments, Inc. and
UTI Instruments Company, Inc.
All other terms and conditions of the Loan Agreement shall remain in full force
and effect, including, without limitation, the Lender's absolute discretion to
make Advances and to demand repayment of Advances at any time.
Nothing contained in this letter shall operate as a waiver of any other Default
or Event of Default, if any, now existing or hereafter arising. The Borrower
represents that as of the date hereof all of the representations and warranties
set forth in Article V of the Loan Agreement are true and correct.
In consideration of the foregoing, Borrower acknowledges that it has no claims,
counterclaims, offsets, or defenses against Lender with respect to the Loan
Agreement or otherwise.
If the foregoing correctly states our understanding, please sign the enclosed
copy of this letter where indicated.
Very truly yours,
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Sharon A. Stone
----------------------------------
Sharon A. Stone, Director
ASSENTED TO AND ACCEPTED this 16th day of October:
MKS INSTRUMENTS, INC.
By: /s/ Robert F. O'Brien
--------------------------------
Title: Treasurer
-----------------------------
-2-
MKS INSTRUMENTS, INC.
SIXTH AMENDMENT
TO LOAN AGREEMENT
This Sixth Amendment (the "Amendment") dated as of February 23, 1996
amends the Loan Agreement dated as of November 1, 1993, as amended (the "Loan
Agreement"), between MKS Instruments, Inc. (the "Borrower") and The First
National Bank of Boston (the "Lender"). Capitalized terms used herein but not
otherwise defined shall have the meanings assigned to them in the Loan
Agreement.
WHEREAS, the Borrower, the Lender and Chemical Bank shall enter into a
loan agreement (the "1996 Loan Agreement") on the date hereof; and
WHEREAS, the Lender and the Borrower agree that certain terms of the
Loan Agreement should be made consistent with similar terms in the 1996 Loan
Agreement;
NOW, THEREFORE, the Lender and the Borrower agree as follows:
Section 1. Amendment to the Loan Agreement.
(a) Section 4.2.2. of the Loan Agreement is hereby amended by deleting
the existing language and substituting the following:
4.2.2. The Lender will notify the Borrower of any event occurring
after the date of this Agreement that will entitle the Lender to any additional
payment under this Section 4.2 as promptly as practicable. The Lender will
furnish to the Borrower with such notice a certificate signed by an officer of
the Lender certifying that the Lender is entitled to payment under this Section
4.2 and setting forth the basis (in reasonable detail) and the amount of each
request by the Lender for any additional payment pursuant to this Section 4.2.
Such certificate shall be conclusive in the absence of manifest error. The
Borrower shall not be obligated to compensate the Lender pursuant to this
Section for amounts accruing prior to the date that is 180 days before the
Lender notifies the Borrower of its obligations to compensate the Lender for
such amounts.
(b) Sections 7.1(a) and 7.1(c) of the Loan Agreement are hereby amended
by replacing the word "sixty" in each with the word "forty-five".
(c) Section 8.1(b) of the Loan Agreement is hereby amended by deleting
the existing language and substituting the following:
8.1(b) Mergers, Etc. Neither the Borrower nor any subsidiary will
consolidate with or merge into any other Person or permit any other Person to
consolidated with or merge into it, or acquire all or substantially all of the
assets of any Person, or sell, assign, lease or otherwise dispose of (whether in
one transaction or in a series of transactions) all or substantially all of its
assets to any Person, except that
(1) a Subsidiary may consolidate with or merge into the
Borrower or another Subsidiary; and
(2) the Borrower or any of its Subsidiaries may acquire all or
substantially all of the assets of any Person provided (i) such Person
is engaged in a line of business substantially similar to one or more
of Borrower's existing lines of business, (ii) the aggregate purchase
price liability incurred in any calendar year, including all contingent
liabilities, when aggregated with all such acquisitions and any
Investments permitted under Section 8.4(2) in any calendar year shall
not exceed 25% of consolidated Tangible Net Worth as of the end of the
most recent fiscal quarter or, if 80% or more of the purchase price is
paid in capital stock of the Borrower, 40% of Consolidated Tangible Net
Worth as of the end of the most recent fiscal quarter and (iii) based
on a pro forma calculation of the ratios set forth in Section 8.7 as of
the date such acquisition is closed, assuming consolidated of the
acquired business with the Borrower for the four full fiscal quarters
ended immediately preceding such closing and pro forma debt and debt
service payments based on scheduled principal payments, including
acquisition borrowings, if any, and pro forma interest on total debt at
then prevailing borrowing rates, Borrower is in compliance with the
financial covenants set forth in Section 8.7.
(d) Section 8.2 of the Loan Agreement is hereby amended by deleting the
existing clause (11) and substituting the following:
(11) Liens in respect of any purchase money obligations for
tangible property used in its business, which obligations shall not at
any time exceed 5% of Consolidated Tangible Net Worth, provided that
any such encumbrances shall not extend to property and assets of the
Borrower or any subsidiary not financed by such a purchase money
obligation;
(e) Section 8.3 of the Loan Agreement is hereby amended by adding the
following words to the end thereof prior to the close parenthesis: "and
transfers of capital equipment that will be leased pursuant to Financing
Leases".
-2-
(f) Section 8.4 of the Loan Agreement is hereby amended by deleting the
existing clause (2) and substituting the following:
(2) Investments in or to any Subsidiary or other Person,
provided Borrower remains in compliance with Section 8.1(b);
and by deleting from clause (4) the word "$100,000,000" and replacing it with
the word "$500,000,000".
(g) Section 8.7 of the Loan Agreement is hereby amended by deleting
subsection (a) and replacing it with the following:
(a) Consolidated Tangible Net Worth. The Consolidated Tangible Net
Worth as of the end of each fiscal quarter of the Borrower shall:
(A) prior to an IPO, not be less than the sum of (i) $38,000,000,
and (ii) 50% of Consolidated Net Income (excluding losses) for each
consecutive fiscal quarter of the Borrower beginning with the quarter
ending March 31, 1996, on a cumulative basis; and
(B) after an IPO, not be less than the sum of (i) the amount
required by clause (A) above immediately prior to such IPO plus (ii) the
net proceeds to the Borrower of the IPO less (iii) the Sub S Dividends.
For purposes of the foregoing, the following terms shall have the meanings
indicated:
"IPO" shall mean the initial underwritten public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
covering the offer and sale of the Borrower's Common Stock for the account of
the Borrower.
"Sub S Dividends" shall mean one or more distributions by the Borrower to
its shareholders who were shareholders prior to the IPO in an aggregate amount
equal to the Borrower's "accumulated adjustments account", as defined in Section
1368(a)(1) if the Internal Revenue Code of 1986, as of the date of the IPO.
(h) Section 9.1 of the Loan Agreement is hereby amended by replacing
existing clause (i) with the following:
(i) There shall occur any default under any instrument or agreement
evidencing any indebtedness for money borrowed in excess of $100,000 by the
Borrower or any of its Subsidiaries;
and by adding the following clauses (l) and (m) after clause (k):
-3-
(l) There shall occur any Event of Default under any other loan or
credit agreement to which the Borrower and the Lender are parties:
(m) The transfer by John R. Bertucci and/or his Affiliates of
securities of the Borrower or the voting power related to such securities as a
result of which the power to elect, appoint or cause the election or appointment
of at least a majority of the members of the board of directors of the Borrower
shall no longer be held by John R. Bertucci and/or his Affiliates;
Section 2. Representations and Warranties. The Borrower hereby represents
and warrants as follows:
(a) The execution and delivery of this Amendment and the performance of
this Amendment, the Loan Agreement as amended hereby and each of the other Loan
Documents, and the transactions contemplated hereby and thereby, have been
authorized by all necessary corporate actions of the Borrower. This Amendment,
the Loan Agreement as amended hereby and each of the other Loan Documents
constitute the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms.
(b) The Borrower has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Amendment, the Loan
Agreement as amended hereby and each of the other Loan Documents. Neither the
authorization, execution, delivery or performance by the Borrower of this
Amendment nor the performance of the Loan Agreement as amended hereby or any
other Loan Document nor the performance of the transactions contemplated hereby
or thereby violates or will violate any provision of the corporate charter
by-laws of the Borrower, or does or will, with the passage of time or the giving
of notice or both, result in a breach of or a default under, or require any
consent under or result in the creation of any lien, charge or encumbrance upon
any property or assets of the Borrower pursuant to, any material instrument,
agreement or other document to which the Borrower is a party or by which the
Borrower or any of its properties may be bound or affected.
(c) The execution and delivery by the Borrower of this Amendment and the
performance by the Borrower of the Loan Agreement as amended hereby and the Loan
Documents do not and will not violate any provision of law or regulation
applicable to the Borrower, or any writ, order or decree of any court or
governmental or regulatory authority or agency applicable to the Borrower.
Section 3. Conditions to Effectiveness. The effectiveness of this Amendment
is conditioned on the following:
-4-
(a) The Borrower and the Lender shall each have executed and delivered a
counterpart of this Amendment;
(b) The representations and warranties contained in Article V of the Loan
Agreement shall be true and correct in all material respects as of the date
hereof as though made on and as of the date hereof; and
(c) No Default or Event of Default under the Loan Agreement shall have
occurred and be continuing.
Section 4. Miscellaneous.
(a) On and after the date hereof, each reference in the Loan Agreement to
"this Agreement" or words of like import shall mean and be deemed to be a
reference to the Loan Agreement as amended hereby.
(b) Except as amended and modified hereby, the Loan Agreement is in all
respects ratified and confirmed as of the date hereof, and the terms, covenants
and agreements therein shall remain in full force and effect.
(c) This Amendment and the modifications to the Loan Agreement set forth
herein shall be deemed to be a document executed under seal and shall be
governed by and construed in accordance with the laws of the Commonwealth of
Massachusetts.
(d) This Amendment may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
document.
IN WITNESS WHEREOF, the parties have caused this Amendment to be duly
executed as of the date and the year first above written.
MKS INSTRUMENTS, INC.
By: /s/ Robert F. O'Brien
--------------------------------
Title: Treasurer
-----------------------------
-5-
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Sharon A. Stone
----------------------------------
Title: Director
-6-
WAIVER
This Waiver (the "Waiver") dated as of October 18, 1996 concerns the
Loan Agreement dated as of November 1, 1993, as amended (the "1993 Loan
Agreement"), between MKS Instruments, Inc. (the "Borrower") and The First
National Bank of Boston (the "Lender") and the Loan Agreement dated as of
October 31, 1995, as amended (the "1995 Loan Agreement") between the Borrower
and the Lender. Capitalized terms used herein but not otherwise defined shall
have the meanings assigned to them in the 1993 and 1995 Loan Agreements.
The Lender hereby waives the Events of Default under Section 9.1(g),
(k) and (l) of the 1993 Loan Agreement and under Section 8.1 (g), (k), and (l)
of the 1995 Loan Agreement resulting from (1) Borrower's failure to meet the
financial covenants set forth in Section 8.7(b) and (c) of the 1993 Loan
Agreement and Section 7.7 (b) and (c) of the 1995 Loan Agreement as of the end
of the fiscal quarter ended June 30, 1996 and (2) the Event of Default that has
occurred under Section 8.1(g), (k) and (1) of the Loan Agreement dated as of
February 23, 1996 among the Borrower, the Lender and the Chase Manhattan Bank
(f/k/a Chemical Bank) as a result of Borrower's failure to meet the financial
covenants set forth in Section 7.7(b) and (c) of such Loan Agreement as of the
end of the fiscal quarter ended June 30, 1996.
Except for the above waiver, the 1993 and 1995 Loan Agreements are in
all respects ratified and confirmed as of the date hereof, and the terms,
covenants and agreements therein shall remain in full force and effect.
IN WITNESS WHEREOF, the Lender has caused this Waiver to be duly
executed as of the date and the year first above written.
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Sharon A. Stone
----------------------------------
Title: Director
-7-
MKS INSTRUMENTS, INC.
WAIVER AND SEVENTH AMENDMENT
TO LOAN AGREEMENT
This Waiver and Seventh Amendment (the "Wavier and Amendment") dated as of
February 4, 1997 concerns the Loan Agreement dated as of November 1, 1993 (the
"Loan Agreement"), between MKS Instruments, Inc. (the "Borrower") and The First
National Bank of Boston (the "Lender"). Capitalized terms used herein but not
otherwise defined shall have the meanings assigned to them in the Loan
Agreement.
WHEREAS, the Borrower has requested that the Lender waive certain Events of
Default; and
WHEREAS, the Lender is willing, on the terms, subject to the conditions and
to the extent set forth below, to grant such a wavier;
NOW, THEREFORE, the Lender and the Borrower agree as follows:
Section 1. Waiver. The Lender hereby waives the Events of Default under
Section 9.1(g), (j), (k) and (l) of the Loan Agreement resulting from Borrower's
failure to meet the financial covenant set forth in Section 8.7(c) of the Loan
Agreement as of the end of the fiscal quarters ended September 30 and December
31, 1996.
Section 2. Amendment to the Loan Agreement.
(a) Section 3.2.1. of the Loan Agreement is hereby amended by adding the
following at the end thereof:
Notwithstanding the preceding clauses (i) and (ii), from June 30, 1996
through June 30, 1997, the only alternative to the Base Rate shall be the
LIBOR Rate plus 2.00%.
(b) Section 8.7(c) of the Loan Agreement is hereby amended by deleting the
existing language and substituting the following:
(c) Cash Flow Ratio. The ratio ("Cash Flow Ratio") of Consolidated
Operating Cash Flow to Consolidated Debt Service:
(1) for the Borrower's fiscal quarter ending March 31, 1997,
shall not be less than 1.25 to 1.00;
(2) for the Borrower's two consecutive fiscal quarters ending
June 30, 1997, shall not be less than 1.00 to 1.00;
(3) for the Borrower's three consecutive fiscal quarters ending
September 30, 1997, shall not be less than 1.25 to 1.00; and
(4) for the Borrower's four consecutive fiscal quarters ending
December 31, 1997 and for each series of four consecutive fiscal
quarters of the Borrower ending after December 31, 1997, shall not be
less than 1.25 to 1.00.
Section 3. Representations and Warranties. The Borrower hereby represents
and warrants as follows:
(a) The execution and delivery of this Waiver and Amendment and the
performance of this Waiver and Amendment, the Loan Agreement as amended hereby
and each of the other Loan Documents, and the transactions contemplated hereby
and thereby, have been authorized by all necessary corporate actions of the
Borrower. This Waiver and Amendment, the Loan Agreement as amended hereby and
each of the other Loan Documents constitute the legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance with
their respective terms.
(b) The Borrower has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Waiver and Amendment,
the Loan Agreement as amended hereby and each of the other Loan Documents.
Neither the authorization, execution, delivery or performance by the Borrower of
this Waiver and Amendment nor the performance of the Loan Agreement as amended
hereby or any other Loan Document nor the performance of the transactions
contemplated hereby or thereby violates or will violate any provision of the
corporate charter or by-laws of the Borrower, or does or will, with the passage
of time or the giving of notice or both, result in a breach of or a default
under, or require any consent under or result in the creation of any lien,
charge or encumbrance upon any property or assets of the Borrower pursuant to,
any material instrument, agreement or other document to which the Borrower is a
party or by which the Borrower or any of its properties may be bound or
affected.
(c) The execution and delivery by the Borrower of this Waiver and
Amendment and the performance by the Borrower of the Loan Agreement as amended
hereby and the Loan Documents do not and will not violate any provision of law
or regulation applicable to the Borrower, or any writ, order or decree of any
court or governmental or regulatory authority or agency applicable to the
Borrower.
Section 4. Loan Documents. This Waiver and Amendment shall be a Loan
Document for all purposes.
-2-
Section 5. Conditions to Effectiveness. The effectiveness of this Waiver
and Amendment is conditioned on the following:
(a) The Borrower and the Lender shall each have executed and delivered
a counterpart of this Waiver and Amendment;
(b) The representations and warranties contained in Article of the Loan
Agreement shall be true and correct in all material respects as of the date
hereof as though made on and as of the date hereof;
(c) No Default or Event of Default under the Loan Agreement shall have
occurred and be continuing other than the Events of Default described in Section
1 hereof; and
(d) The Borrower's audited consolidated financial statements for the
year ended December 31, 1996 shall not differ in any materially adverse respect
from the Borrower's unaudited consolidated financial statements for the year
ended December 31, 1996, which the Borrower has provided to the Lender and upon
which the Lender has relied in agreeing to this Waiver and Amendment.
Section 6. Miscellaneous.
(a) On and after the date hereof, each reference in the Loan Agreement
to "this Agreement" or words of like import shall mean and be deemed to be a
reference to the Loan Agreement as amended hereby.
(b) Except as amended and modified hereby, the Loan Agreement is in all
respects ratified and confirmed as of the date hereof, and the terms, covenants
and agreements therein shall remain in full force and effect.
(c) This Waiver and Amendment and the modifications to the Loan
Agreement set forth herein shall be deemed to be a document executed under seal
and shall be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts.
(d) This Waiver and Amendment may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same document.
-3-
IN WITNESS WHEREOF, the parties have caused this Waiver and Amendment to be
duly executed as of the date and the year first above written.
MKS INSTRUMENTS, INC.
By: /s/ Robert F. O'Brien
--------------------------------
Title: Treasurer
-----------------------------
THE FIRST NATIONAL BANK OF
BOSTON
By:_________________________________
Title:______________________________
-4-
IN WITNESS WHEREOF, the parties have caused this Waiver and Amendment to be
duly executed as of the date and the year first above written.
MKS INSTRUMENTS, INC.
By:_________________________________
Title:______________________________
THE FIRST NATIONAL BANK OF
BOSTON
By: /s/ Sharon A. Stone
----------------------------------
Title: Director
-5-
MKS INSTRUMENTS, INC.
WAIVER AND NINTH AMENDMENT
TO LOAN AGREEMENT
This Waiver and Ninth Amendment (the "Waiver and Amendment") dated as of
January 28, 1999 concerns the Loan Agreement dated as of November 1, 1993 (the
"Loan Agreement"), between MKS Instruments, Inc. (the "Borrower") and
BankBoston, N.A. (f/k/a The First National Bank of Boston; the "Lender"), as
amended. Capitalized terms used herein but not otherwise defined shall have the
meanings assigned to them in the Loan Agreement.
WHEREAS, the Borrower has requested that the Lender waive certain Events of
Default and agree to change certain financial covenants in the Loan Agreement;
and
WHEREAS, the Lender is willing, on the terms, subject to the conditions and
to the extent set forth below, to grant such a waiver and amend the Loan
Agreement to effect such changes;
NOW, THEREFORE, the Lender and the Borrower agree as follows:
Section 1. WAIVER. The Lender hereby waives the Events of Default under
Section 9.1(g), (j), (k) and (l) of the Loan Agreement resulting from Borrower's
failure to meet the financial covenant set forth in Section 8.7(c) of the Loan
Agreement as of the end of the fiscal quarter ended December 31, 1998.
Section 2. AMENDMENT OF THE LOAN AGREEMENT.
(a) Section 3.2.1 of the Loan Agreement is hereby amended by adding the
following sentences at the end thereof:
Notwithstanding the preceding clauses (i) and (ii), from the date hereof
through the date on which the effect of a change resulting from the
Borrower's delivery of its financial statements and Compliance Certificate
for the quarter ending June 30, 1999 will take effect, the only alternative
to the Base Rate shall be the LIBOR Rate plus 1.65%.
The effect of any change to the Borrower's Debt-to-Net Worth Ratio or Cash
Flow Ratio on the interest rate available pursuant to Section 3.2.1(i) or
(ii) shall take effect on the first day of the month immediately following
the month in which the Borrower delivers its financial statements pursuant
to Section 7.1(a) or (b) and Compliance Certificate pursuant to Section
7.1(c).
(b) Section 8.7(c) of the Loan Agreement is hereby amended by adding the
following clause at the end thereof:
provided, however, that as of the end of each of the fiscal quarters listed
below, the Cash Flow Ratio shall not be less than the ratio stated directly
below such quarter:
Q4 1998 Q1 1999 Q2 1999 Q3 1999
------- ------- ------- -------
.6 to 1 .5 to 1 .5 to 1 1.1 to 1
provided, however, that, the foregoing notwithstanding, if the Cash Flow
Ratio for the first fiscal quarter of 1999 is less than 1 to 1, then the
Cash Flow Ratio for the second fiscal quarter of 1999 shall not be less
than 1 to 1 and further, that the Cash Flow Ratio for the first and second
fiscal quarters of 1999 shall mean the ratio as of the end of each such
quarter of (i) Consolidated Operating Cash Flow for such fiscal quarter
ended on such date to (ii) Consolidated Debt Service for such quarter and
that the Cash Flow Ratio for the third fiscal quarter of 1999 shall mean
the ratio as of the end of such quarter of (i) Consolidated Operating Cash
Flow for the first three fiscal quarters of 1999 ended on such date to (ii)
Consolidated Debt Service for such quarters.
(c) Section 8.7 of the Loan Agreement is hereby amended by adding the
following subsection (d):
(d) EBIT-TO-INTEREST RATIO. The ratio of the sum of Consolidated Net
Income plus Interest Expense, the interest portion of Financing Lease
Obligations and all taxes in respect of income and profits paid or payable
(including accrued Sub S distributions required to make shareholder tax
payments) as of the end of each fiscal quarter of the Borrower beginning
with the fiscal quarter ended December 31, 1998 to Interest Expense during
such quarter shall not be less than 2 to 1 for the fiscal quarters ending
December 31, 1998 and March 31, 1999 and 3 to 1 for the fiscal quarters
ending June 30, 1999 and September 30, 1999.
Section 3. FEES. The Borrower shall pay to the Lender a fee of $10,000 on
the date of this Waiver and Amendment.
Section 4. REPRESENTATIONS AND WARRANTIES. The Borrower hereby represents
and warrants as follows:
(a) The execution and delivery of this Waiver and Amendment and the
performance of this Waiver and Amendment, the Loan Agreement as amended hereby
and each of the other Loan Documents, and the transactions contemplated
-2-
hereby and thereby, have each of the other Loan Documents, and the transactions
contemplated hereby and thereby, have been authorized by all necessary corporate
actions of the Borrower. This Waiver and Amendment, the Loan Agreement as
amended hereby and each of the other Loan Documents constitute the legal, valid
and binding obligations of the Borrower, enforceable against the Borrower in
accordance with their respective terms.
(b) The Borrower has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Waiver and Amendment,
the Loan Agreement as amended hereby and each of the other Loan Documents.
Neither the authorization, execution, delivery or performance by the Borrower of
this Waiver and Amendment nor the performance of the Loan Agreement as amended
hereby or any other Loan Document nor the performance of the transactions
contemplated hereby or thereby violates or will violate any provision of the
corporate charter or by-laws of the Borrower, or does or will, with the passage
of time or the giving of notice or both, result in a breach of or a default
under, or require any consent under or result in the creation of any lien,
charge or encumbrance upon any property or assets of the Borrower pursuant to,
any material instrument, agreement or other document to which the Borrower is a
party or by which the Borrower or any of its properties may be bound or
affected.
(c) The execution and delivery by the Borrower of this Waiver and
Amendment and the performance by the Borrower of the Loan Agreement as amended
hereby and the Loan Documents do not and will not violate any provision of law
or regulation applicable to the Borrower, or any writ, order or decree of any
court or governmental or regulatory authority or agency applicable to the
Borrower.
Section 5. LOAN DOCUMENTS. This Waiver and Amendment shall be a Loan
Document for all purposes.
Section 6. CONDITIONS TO EFFECTIVENESS. The effectiveness of this Waiver
and Amendment is conditioned on the following:
(a) The Borrower and the Lender shall each have executed and delivered
a counterpart of this Waiver and Amendment;
(b) The representations and warranties contained in Article V of the
Loan Agreement shall be true and correct in all material respects as of the
date hereof as though made on and as of the date hereof;
(c) No Default or Event of Default under the Loan Agreement shall have
occurred and be continuing other than the Events of Default described in
Section 1 hereof; and
-3-
(d) The Lender shall have received, in form and substance satisfactory
to it:
(i) an opinion of independent counsel to the Borrower with
respect to this Waiver and Amendment;
(ii) a certificate as to the Borrower's legal existence and good
standing under the laws of The Commonwealth of Massachusetts; and
(iii) a certificate of the Borrower's Clerk as to (x) no changes
in its charter documents and by-laws as amended, (y) corporate votes
authorizing the execution and delivery of this Waiver and Amendment
and (z) incumbency of the officers authorized to execute this Waiver
and Amendment on behalf of the Borrower;
(e) The Borrower's audited consolidated financial statements for the
year ended December 31, 1998 (the "1998 Statements") shall not differ in any
materially adverse respect from the Borrower's unaudited consolidated financial
statements for the year ended December 31, 1998, which the Borrower has provided
to the Lender and upon which the Lender has relied in agreeing to this Waiver
and Amendment and the Borrower shall deliver the 1998 Statements to the Lender
no later than 30 days after the date of this Waiver and Amendment.
(f) The conditions set forth in clauses (b) - (e) of Section 6.1 of
the Loan Agreement shall have been met as of the date hereof, provided that
for purposes thereof and Section 5.5 of the Loan Agreement, the "Balance
Sheet Date" shall mean December 31, 1998 and the financial statements
referred to therein shall mean the unaudited statements for the year ended
December 31, 1998, that have been furnished to the Lender.
Section 7. MISCELLANEOUS
(a) On and after the date hereof, each reference in the Loan Agreement
to "this Agreement" or words of like import shall mean and be deemed to be a
reference to the Loan Agreement as amended hereby.
(b) Except as amended and modified hereby, the Loan Agreement is in
all respects ratified and confirmed as of the date hereof, and the terms,
covenants and agreements therein shall remain in full force and effect.
(c) This Waiver and Amendment and the modifications to the Loan
Agreement set forth herein shall be deemed to be a document executed under
seal and shall be governed by and construed in accordance with the laws of
The Commonwealth of Massachusetts.
-4-
(d) This Waiver and Amendment may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same document.
IN WITNESS WHEREOF, the parties have caused this Waiver and Amendment
to be duly executed as of the date and the year first above written.
MKS INSTRUMENTS, INC.
By: /s/ William P. Donlan
---------------------
Title: Treasurer
BANKBOSTON, N.A.
By: /s/ Sharon A. Stone
-------------------
Title: Director
-5-
Dates Referenced Herein and Documents Incorporated by Reference
↑Top
Filing Submission 0000950135-99-001166 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)
Copyright © 2024 Fran Finnegan & Company LLC – All Rights Reserved.
About — Privacy — Redactions — Help —
Wed., Apr. 24, 3:24:42.1pm ET 
