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EXHIBIT 4.9
CREDIT AGREEMENT
This Credit Agreement is dated September 24, 2001 (this "Agreement"), and is
between PERCEPTRON, INC., a Michigan corporation (the "Borrower"), whose address
is 00000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, and BANK ONE, MICHIGAN, a
Michigan banking corporation (the "Bank"), whose address is 000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000. The parties agree as follows:
ARTICLE 1 - DEFINITIONS
"Adjusted EBITDA" for any period means EBITDA for such period, plus Rental
Expense for such period, minus Capital Expenditures for such period, minus the
aggregate amount of all dividends, payments and other distributions (including,
without limitation, any such payments and distributions in connection with any
redemption, purchase, retirement or other acquisition of the Borrower's capital
stock ) paid, payable or otherwise accumulating with respect to any class of the
Borrower's capital stock.
"Advance" shall mean any Loan and any Letter of Credit Advance.
"Applicable Margin" means the percent per annum added to the Eurodollar Rate if
that rate is chosen by the Borrower, and as determined pursuant to Section 2.9
and by reference to the following matrix, based upon the ratio of the Funded
Debt of the Borrower to the EBITDA of the Borrower calculated in accordance with
Section 6.12 hereof:
Funded Debt/ Eurodollar
EBITDA Rate plus
Less than 5.00 to 1.00
but equal to or greater 1.625%
than
3.00 to 1.00
Less than 3.00 to 1.00
but greater than or 1.50%
equal to 1.00 to 1.00
Less than
1.00 to 1.00 1.25%
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"Borrowing Base Certificate" for any date shall mean an appropriately completed
report as of such date in substantially the form of Exhibit A hereto, certified
as true and correct as of such date by a duly authorized officer of the
Borrower.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Rate Loans, a day other than Saturday or Sunday on which
the Bank is open for business in Detroit and banks are open for business in New
York and on which dealings in United States dollars are carried on in the London
interbank market, and (ii) for all other purposes, a day other than Saturday or
Sunday on which the Bank is open for business in Detroit.
"Capital Expenditures" for any period means net capital expenditures of the
Borrower and its Subsidiaries for such period, as determined on a consolidated
basis in accordance with GAAP.
"Commitment" shall mean Facility A Commitment or Facility B Commitment.
"Consolidated" or "consolidated" means, when used with reference to any
financial term in this Agreement, the aggregate for two or more persons of the
amounts signified by such term for all such Persons determined on a consolidated
basis in accordance with GAAP.
"Default" means an event described in Section 7.
"EBITDA" means, for any period, the operating income (before the deduction of
Interest Expense and income tax expense) of the Borrower and its Subsidiaries on
a consolidated basis for such period, plus each of the following with respect to
the Borrower and its Subsidiaries for such period to the extent utilized in
determining such income, without duplication: (i) depreciation and (ii)
amortization of deferred costs and other intangibles.
"Effective Date" shall mean September 24, 2001.
"Eligible Accounts Receivable" shall mean, as of any date, those trade accounts
receivable owned by the Borrower or any Guarantor which are payable in Dollars
and in which the Borrower or Guarantor has granted to the Bank a first-priority
perfected security interest pursuant to the Security Agreement, valued at the
face amount thereof less sales, excise or similar taxes and less returns,
discounts, claims, credits and allowances of any nature at any time issued,
owing, granted, outstanding, available or claimed, but shall not include any
such account receivable (a) that is not a bona fide existing obligation created
by the sale and actual delivery of inventory, goods or other property or the
furnishing of services or other good and sufficient consideration to customers
of the Borrower in the ordinary course of business, (b) that is more than 180
days past due or that remains outstanding more than 180 days after the earlier
of the date of the invoice or the shipment of the related inventory, goods or
other property or the furnishing of the related services or other consideration,
(c) that is subject to any dispute, contra-account, defense, offset or
counterclaim or any Lien (except those in favor of the Bank under the Security
Documents), or the inventory, goods, property, services or other consideration
of which such account receivable constitutes proceeds is subject to any such
Lien, (d) in respect of which the inventory, goods, property, services or other
consideration have been rejected or the amount is in dispute, (e) that is due
from any Affiliate or Subsidiary of the Borrower, (f) that has been classified
by the Borrower as doubtful or
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has otherwise failed to meet established or customary credit standards of the
Borrower, (g) that is payable by any person located outside the United States
(which shall not be deemed to include any territories of the United States) or
Canada and are not supported by letters of credit issued to the Bank by
commercial banks, and in form and substance, acceptable to the Bank, (h) with
respect to which any representation or warranty contained in Section 5.9 is
incorrect at any time, (i) that is payable by the United States or any of its
departments, agencies or instrumentalities or by any state or other governmental
entity, (j) that is payable by any person as to which 50% or more of the
aggregate amount of such accounts receivable payable by such person to the
Borrower do not otherwise constitute Eligible Accounts Receivable, (k) that is
payable by any person that is the subject of any proceeding seeking to
adjudicate it a bankrupt or insolvent or seeking liquidation, winding up or
reorganization, arrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or reorganization
or relief or protection of debtors or seeking the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property, or that is not generally paying its debts as they become due or
has admitted in writing its inability to pay its debts generally or has made a
general assignment for the benefit of creditors, (l) that is evidenced by a
promissory note or other instrument, (m) that is subordinate or junior in right
or priority of payment to any other obligation or claim, or (n) that for any
other reason is at any time reasonably deemed by the Bank to be ineligible.
"Eligible Inventory" shall mean, as of any date, that inventory owned by the
Borrower or any Guarantor that constitutes raw materials or finished goods in
which the Borrower or such Guarantor has granted to the Bank a first-priority
perfected security interest pursuant to the Security Agreement, valued at the
lower of cost or market on a FIFO, but shall not include any such inventory (a)
that does not constitute raw materials or finished goods readily salable or
usable in the business of the Borrower or such Guarantor, as the case may be,
(b) that is located outside the United States (which shall not be deemed to
include any territories of the United States), (c) that is subject to, or any
accounts or other proceeds resulting from the sale or other disposition thereof
could be subject to, any Lien (except those in favor of the Bank under the
Security Documents), including any sale on approval or sale or return
transaction or any consignment, (d) that is not in the possession of the
Borrower or Guarantor, (e) that is held for lease or is the subject of any
lease, (f) that is subject to any trademark, trade name or licensing
arrangement, or any law, rule or regulation, that could limit or impair the
ability of the Bank to promptly exercise all rights of the Bank under the
Security Documents, (g) if such inventory is located on premises not owned by
the Borrower or Guarantor and the landlord or other owner of such premises shall
not have waived its distraint, lien and similar rights with respect to such
inventory and shall not have agreed to permit the Bank to enter such premises
pursuant to a waiver and agreement of such person in favor of and in form and
substance acceptable to the Bank, (h) with respect to which any insurance
proceeds are not payable to the Bank as a loss payee or are payable to any loss
payee other than the Bank or the Borrower or the Guarantor, as the case may be,
or (i) that for any other reason is at any time reasonably deemed by the Bank to
be ineligible.
"Environmental Certificate" shall mean an appropriately completed environmental
certificate in the form of Exhibit B attached hereto, delivered by the Borrower,
certified as true and correct as of such date by an executive officer of the
Borrower acceptable to the Bank.
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"Eurodollar Base Rate" means the rate determined by the Bank to be the rate at
which deposits in U.S. dollars are offered to the Bank by first class banks in
the London interbank market at approximately 11 a.m. (London time) two Business
Days prior to the first day of that Eurodollar Interest Period, in the
approximate amount of the relevant Eurodollar Rate Loan and having a maturity
approximately equal to that Eurodollar Interest Period.
"Eurodollar Interest Period" means a period of one, two or three months
commencing on a Business Day selected by the Borrower pursuant to this
Agreement. The Eurodollar Interest Period ends on the day which corresponds
numerically to that date one, two or three months thereafter. If there is no
numerically corresponding day in the next, second or third succeeding month,
that Eurodollar Interest Period ends on the last Business Day of the relevant
month. If a Eurodollar Interest Period would otherwise end on a day which is not
a Business Day, that Eurodollar Interest Period ends on the next succeeding
Business Day, unless that Business Day falls in a new month in which case that
Eurodollar Interest Period ends on the immediately preceding Business Day.
"Eurodollar Rate" means the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to that Eurodollar Interest Period divided by (b) one minus the
Reserve Requirement (expressed as a decimal) applicable to that Eurodollar
Interest Period plus (ii) the Applicable Margin per annum. The Eurodollar Rate
will be rounded, if necessary, to the next higher 1/16 of 1%.
"Existing Credit Agreement" shall mean the credit agreement dated as of May 28,
1999 between the Borrower and the Bank, as amended prior to the date hereof.
"Facility A" means the credit facility described in Section 2.1(a).
"Facility A Advance" means each Facility A Loan and each Letter of Credit issued
under Facility A.
"Facility A Borrowing Base" means, as of any date, the sum of (a) an amount
equal to 80% of the value of Eligible Accounts Receivable plus (b) an amount
equal to 35% of the value of Eligible Inventory constituting raw material,
provided, that, the total amount of reliance under this clause (b) plus the
reliance on the Facility B Borrowing Base may not exceed $5,000,000, plus (b) an
amount equal to $4,800,000, representing 80% of the appraised value of the
Mortgaged Property.
"Facility A Commitment" means the obligation of the Bank (a) to make Facility A
Loans not exceeding $17,000,000 minus any outstanding Letters of Credit, and (b)
to issue Letters of Credit not exceeding $1,000,000 so long as the aggregate of
the Letters of Credit plus the outstanding balance of Loans does not exceed
$17,000,000, as such amount may be reduced from time to time pursuant to Section
2.2.
"Facility A Loan" means each Loan made by the Bank under Facility A.
"Facility A Note" means a promissory note in substantially the form of Exhibit
C-1 evidencing the Facility A Loans, duly executed and delivered to the Bank by
the Borrower, including any amendment or replacement.
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"Facility B" means the credit facility described in Section 2.1(b).
"Facility B Borrowing Base" means, as of any date, an amount equal to 50% of the
value of Eligible Inventory constituting finished goods, provided, that, the
total amount of reliance in Facility B Borrowing Base plus the reliance on raw
material Eligble Inventory in the Facility A Borrowing Base may not exceed
$5,000,000.
"Facility B Commitment" means the obligation of the Bank to make Facility B
Loans not exceeding $1,500,000, as such amount may be reduced from time to time
pursuant to Section 2.2.
"Facility B Loan" means each Loan made by the Bank under Facility B.
"Facility B Note" means a promissory note in substantially the form of Exhibit
C-2 evidencing the Facility B Loans, duly executed and delivered to the Bank by
the Borrower, including any amendment or replacement.
"Fixed Charge Coverage Ratio" means the ratio of Adjusted EBITDA to Fixed
Charges.
"Fixed Charges" for any period means the sum, without duplication, of the
following for such period, determined for the Borrower and its Subsidiaries on a
consolidated basis: (i) Interest Expense, plus (ii) Rental Expense, plus (iii)
income tax expense, plus (iv) the aggregate amount of all dividends, payments
and other distributions (including, without limitation, any such payments and
distributions in connection with any redemption, purchase, retirement or other
acquisition of the Borrower's capital stock) paid, payable or otherwise
accumulating with respect to any class of the Borrower's capital stock, plus (v)
all scheduled payments of principal or other sums paid or payable by the
Borrower and its Subsidiaries in respect of Funded Debt.
"Floating Rate" means a rate per annum equal to (a) with respect to Facility A,
the difference of (i) the Prime Rate minus (ii) 1/2% per annum, and (b) with
respect to Facility B, the sum of (i) the Prime Rate plus (ii) 1/4% per annum,
in each case changing when and as the Prime Rate changes.
"Funded Debt" of any Person means, without duplication, all indebtedness of such
Person to the Bank, all lease obligations of such person which, in accordance
with GAAP, are or should be capitalized on the books of such Person, and all
other indebtedness of such Person for borrowed money or that otherwise bears
interest.
"GAAP" means, as of the date of determination, generally accepted accounting
principles, consistently applied.
"Guaranties" shall mean the guaranties entered into by each of the Guarantors
for the benefit of the Bank pursuant to this Agreement in the form of Exhibit D
attached hereto, as amended or modified from time to time.
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"Guarantor" shall mean each domestic Subsidiary of the Borrower and each person
otherwise becoming a domestic Subsidiary of the Borrower, or otherwise entering
into a Guaranty, from time to time.
"Interest Expense" means, for any period and in respect of any Person, the
interest expense of such Person in respect of such period, determined in
accordance with GAAP.
"Interest Period" means a Eurodollar Interest Period.
"Lending Installation" means any office, branch, subsidiary or affiliate of the
Bank.
"Letter of Credit" means a standby letter of credit issued by the Bank for the
account of the Borrower, as amended or renewed.
"Letter of Credit Advance" means the issuance of a Letter of Credit hereunder.
"Letter of Credit Documents" means all applications, reimbursement and security
agreements given by the Borrower to the Bank in the Bank's standard form for any
Letter of Credit, and any amendment or renewal.
"Lien" means any security interest, mortgage, pledge, lien, claim, charge,
encumbrance, title retention agreement, lessor's interest under a capitalized
lease or analogous instrument, in, of or on any Person's assets or properties in
favor of any other Person.
"Loan" means any loan made (or any conversion or continuation of any loan) by
the Bank to the Borrower pursuant to this Agreement and the Notes.
"Loan Documents" means, collectively, this Agreement, the Notes, the Security
Documents and all agreements, instruments and documents executed pursuant hereto
at any time.
"Material Adverse Effect" means with respect to any matter that that matter (i)
could reasonably be expected to materially and adversely affect the business,
properties, condition (financial or otherwise), or results of operations of the
Borrower and its Subsidiaries, taken as a whole, or (ii) has been brought by or
before any court or arbitrator or any governmental body, agency or official, and
draws into question the validity or enforceability of any material provision of
this Agreement, the Notes or any of the Letter of Credit Documents.
"Mortgage" shall mean the mortgage entered into by the Borrower for the benefit
of the Bank, as amended or modified from time to time, granting a first mortgage
lien on Mortgaged Property.
"Mortgaged Property" shall mean the real property located at 00000 Xxxxxxx
Xxxxx, Xxxxxxxx, Xxxxxxxx.
"Note" means each Facility A Note and Facility B Note.
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"Obligations" means all unpaid principal of and accrued and unpaid interest on
the Notes, all accrued and unpaid facility fees, all outstanding Letters of
Credit, and all other obligations of the Borrower to the Bank arising under this
Agreement, the Notes, and the Letter of Credit Documents.
"Perceptron GmbH" shall mean Perceptron GmbH, a corporation organized and
existing under the laws of Germany.
"Permitted Liens" shall mean all Liens permitted pursuant to Section 6.7 hereof.
"Person" means any corporation, natural person, firm, limited liability company,
joint venture, partnership, trust, unincorporated organization, enterprise,
government or any department or agency of any government.
"Pledge Agreement" shall mean each pledge agreement entered into by the Borrower
or any Subsidiary for the benefit of the Bank pursuant to this Agreement, in
form and substance satisfactory to the Bank, as amended or modified from time to
time.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by the Bank or its parent (which is not necessarily
the lowest rate charged to any customer), changing when and as said prime rate
changes.
"Rate Option" means the Floating Rate or, with respect to Facility A only, the
Eurodollar Rate.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System from time to time in effect and includes any successor or other
regulation or official interpretation of the Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Rental Expense" for any period means the maximum amount of all rents and other
payments (exclusive of property taxes, property and liability insurance premiums
and maintenance costs) paid or required to be paid by the Borrower during such
period under any operating lease in respect of which the Borrower is obligated
as a lessee or user.
"Reserve Requirement" means with respect to a Eurodollar Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Section" means a numbered section of this Agreement, unless another document is
specifically referenced.
"Security Agreement" shall mean each security agreement entered into by the
Borrower or any Guarantor for the benefit of the Bank, as amended or modified
from time to time.
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"Security Documents" shall mean, collectively, the Mortgage, the Security
Agreements, the Pledge Agreements, the Guaranties, the Environmental
Certificates and all other related agreements and documents, including financing
statements and similar documents, delivered pursuant to this Agreement or
otherwise entered into by any person to secure the Advances.
"Subsidiary" means any Person more than 50% of the outstanding voting securities
or other voting interests of which are at the time owned or controlled, directly
or indirectly, by the Borrower or by one or more Subsidiaries or by the Borrower
and one or more Subsidiaries, or any similar business organization which is so
owned or controlled.
"Termination Date" means the earlier to occur of (a) with respect to Facility A,
August 31, 2003, and, with respect to Facility B, August 31, 2002 and (b) the
date on which a Commitment shall be terminated pursuant to Section 2.2 or
Section 8.1.
"Unmatured Default" means an event which but for the lapse of time or the giving
of notice, or both, would constitute a Default.
"Tangible Net Worth" means, as of any date, (a) the amount of any capital stock,
paid in capital and similar equity accounts plus (or minus in the case of a
deficit) the capital surplus and retained earnings and the amount of any foreign
currency translation adjustment account shown as a capital account, less (b) the
net book value of all items of the following character which are included in
assets: (i) goodwill, including, without limitation, the excess of cost over
book value of any asset, (ii) organization or experimental expenses, (iii)
unamortized debt discount and expense, (iv) patents, trademarks, trade names and
copyrights, (v) treasury stock, (vi) net deferred taxes and deferred charges,
(vii) franchises, licenses and permits, and (viii) other assets which are deemed
intangible assets under GAAP; all as determined for the Borrower and its
Subsidiaries on a consolidated basis in accordance with GAAP.
"Total Liabilities" means, as of any date, the following, as determined for the
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP:
all obligations which, in accordance with GAAP, are or should be classified as
liabilities on a balance sheet and all contingent liabilities.
The foregoing definitions are applicable to both the singular and plural forms
of the defined terms. All computations required hereunder and all financial
terms used herein shall be made or construed in accordance with GAAP unless such
principles are inconsistent with the express requirements of this Agreement.
ARTICLE 2 - THE LOANS
2.1 COMMITMENTS TO LEND. From and including the date of this Agreement and
prior to the Termination Date, the Bank agrees, on the terms of this Agreement:
A) To make Facility A Loans to and, issue Letters of Credit for the
account of, the Borrower from time to time in amounts not exceeding, in the
aggregate at any one time outstanding, the amount determined pursuant to Section
2.1(c). Notwithstanding anything in this
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Agreement to the contrary, the Bank may decline to issue any requested Letter of
Credit on the basis that the beneficiary, the purpose of issuance or the terms
or the conditions of drawing are unacceptable to it in its reasonable
discretion.
B) To make Facility B Loans to the Borrower from time to time in
amounts not exceeding, in the aggregate at any one time outstanding, the amount
determined pursuant to Section 2.1(c).
C) Notwithstanding anything in this Agreement to the contrary, (i) the
aggregate principal amount of the Facility A Advances made by the Bank at any
time outstanding shall not exceed the lesser of (a) amount of the Facility A
Commitment as of the date any such Facility A Advance is made, or (b) the
Facility A Borrowing Base pursuant to the Borrowing Base Certificate as of the
close of business on the last date of the month next preceding the date any such
Facility A Advance is made, and (ii) the aggregate principal amount of the
Facility B Loans made by the Bank at any time outstanding shall not exceed the
lesser of (a) amount of the Facility B Commitment as of the date any such
Facility B Loan is made, or (b) the Facility B Borrowing Base pursuant to the
Borrowing Base Certificate as of the close of business on the last date of the
month next preceding the date any such Loan is made,. If the Advances at any
time exceed the amount allowed under this Section 2.1(c), the Borrower shall
immediately prepay the relevant Loans by an amount equal to or greater than such
excess as required pursuant to the Borrowing Base Certificate.
2.2 FEES AND REDUCTION OF THE COMMITMENTS. The Borrower agrees to pay to
the Bank on or before the Effective Date a facility fee in the amount of $16,500
for this Agreement (comprised of a $15,000 facility fee for Facility A and a
$1,500 facility fee for Facility B). In addition, the Borrower agrees to pay a
commitment fee of 1/4% per annum on the daily unused amount of the Facility A
Commitment from the date of this Agreement to and including the Revolving Credit
Termination Date, payable on the last day of each quarter and on the Revolving
Credit Termination Date. The Borrower may permanently reduce a Commitment in
whole, or in part in integral multiples of $100,000, upon at least ten Business
Days' written notice to the Bank, which must specify the amount of any reduction
and the relevant Commitment which it intends to reduce, but the amount of the
Commitment may not be reduced below the outstanding principal amount of the
Loans and Letters of Credit outstanding under such Commitment. All accrued
commitment fees are payable on the effective date of any termination of the
obligations of the Bank to make Facility A Loans.
2.3 LOANS. Subject to the terms of this Agreement, the Borrower may borrow,
repay and reborrow at any time prior to the Termination Date. The Loans may be
Floating Rate Loans or, with respect to Facility A only, Eurodollar Rate Loans,
or a combination of them, selected by the Borrower in accordance with Section
2.4. The Loans must be repaid in full on the Termination Date. The Bank may book
the Loans at any Lending Installation. The Borrower may from time to time prepay
outstanding Floating Rate Loans in whole or in part without penalty or premium.
A Eurodollar Rate Loan may not be paid prior to the last day of the applicable
Interest Period.
2.4 METHOD OF SELECTING RATE OPTIONS AND INTEREST PERIODS. The Borrower may
select the Rate Option and Interest Period applicable to each Loan from time to
time. The Borrower must
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give the Bank an irrevocable borrowing notice not later than 3:30 p.m. Detroit
time on the borrowing date of each Floating Rate Loan and 10:00 a.m. Detroit
time three Business Days before the borrowing date for each Eurodollar Rate
Loan, specifying:
(i) the borrowing date of that Loan, which must be a Business Day,
(ii) the amount of that Loan,
(iii) the Rate Option selected for that Loan, and
(iv) in the case of each Eurodollar Rate Loan, the Interest Period
applicable to it.
Each Eurodollar Rate Loan will bear interest on the outstanding principal amount
for each day during the Interest Period applicable to it from and including the
first day of that Interest Period to (but not including) the last day of that
Interest Period at the interest rate determined as applicable to that Eurodollar
Rate Loan. If at the end of an Interest Period for an outstanding Eurodollar
Rate Loan, the Borrower has failed to select a new Rate Option or to pay that
Loan, then that Loan will be converted to a Floating Rate Loan on and after the
last day of the Interest Period until paid or until the effective date of a new
Rate Option with respect to it is selected by the Borrower. An outstanding
Floating Rate Loan may be converted to a Eurodollar Rate Loan at any time
subject to the notice provisions applicable to the type of Loan selected. The
Borrower may not select a Eurodollar Rate for a Loan if (x) there exists a
Default or Unmatured Default or (y) the Ratio (as defined in Section 2.9) as of
the most recent Determination Date (as defined in Section 2.9) is equal to or
greater than 5.0 to 1.0. The Borrower may not select an Interest Period which
would end after the Termination Date. Each Eurodollar Rate Loan must be in the
minimum amount of $1,000,000 (and in multiples of $100,000 if in excess of the
minimum).
2.5 RATES APPLICABLE AFTER DEFAULT. If any Loan is not paid at maturity, whether
by acceleration or otherwise, (i) each Eurodollar Rate Loan will bear interest
for the remainder of the applicable Interest Period at the rate otherwise
applicable to that Interest Period plus 3% per annum, and (ii) each Floating
Rate Loan will bear interest at a rate per annum equal to the Floating Rate
otherwise applicable to the Floating Rate Loan plus 3% per annum. During the
continuance of any other Default, the Bank may, at its option, by notice to the
Borrower, declare that (a) each Eurodollar Rate Loan will bear interest for the
remainder of the applicable Interest Period at the rate otherwise applicable to
that Interest Period plus 3% per annum, and (b) each Floating Rate Loan will
bear interest at a rate per annum equal to the Floating Rate otherwise
applicable to the Floating Rate Loan plus 3% per annum.
2.6 METHOD OF PAYMENT. All payments of principal, interest, and fees must be
made in immediately available funds to the Bank at the Bank's address specified
pursuant to Section 9.5, or at any other Lending Installation of the Bank
specified in writing by the Bank to the Borrower, by noon (local time) on the
date when due. The Bank is authorized to charge the account of the Borrower
maintained with it for each payment of principal, interest and fees as it
becomes due.
2.7 NOTE; TELEPHONIC NOTICES. The Bank is authorized to record on its books the
date, amount, Rate Option and Interest Period of each Loan, and the date and
amount of each principal
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payment made under the Notes. These records govern absent manifest error,
provided that neither the failure to record nor any error in that record affects
the Borrower's obligations under the Notes. The Borrower authorizes the Bank to
extend Loans and effect Rate Option selections based on telephonic notices made
by any person or persons the Bank in good faith believes to be acting on behalf
of the Borrower. The Borrower agrees to deliver promptly to the Bank a written
confirmation, if that confirmation is requested by the Bank, of each telephonic
notice, signed by an authorized officer of the Borrower. If the written
confirmation differs in any material respect from the action taken by the Bank,
the records of the Bank govern, absent manifest error.
2.8 INTEREST PAYMENT DATES; INTEREST BASIS. Interest accrued on the Loans is
payable (i) for Floating Rate Loans, on the last day of each month, (ii) for
Eurodollar Rate Loans, on the last day of its applicable Interest Period and
(iii) for all Loans, on any date on which the Loan is paid or prepaid, whether
due to acceleration or otherwise. Interest accrued on each Eurodollar Rate Loan,
if any, having an Interest Period longer than three months is also payable on
the last day of each three-month interval during that Interest Period. Interest
and commitment fees are calculated for actual days elapsed on the basis of a
360-day year. Interest is payable for the day a Loan is made but not for the day
of any payment on the amount paid if payment is received prior to noon (local
time) at the place of payment. If any payment of principal of or interest on a
Loan becomes due on a day which is not a Business Day, that payment must be made
on the next succeeding Business Day and, in the case of a principal payment,
that extension of time is included in computing interest.
2.9 APPLICABLE MARGIN ADJUSTMENTS. The Applicable Margin is determined based on
the ratio (the "Ratio") of (i) the Funded Debt of the Borrower as of each fiscal
quarter end (each a "Determination Date") to (ii) the EBITDA of the Borrower for
the four consecutive fiscal quarters then ending, and the pricing matrix in the
definition of Applicable Margin. Each determination and adjustment will only be
applied prospectively, and is made irrespective of any other interest rate
adjustment. Each adjustment, if any, of the Applicable Margin based upon the
Ratio as of each Determination Date shall be made as of the first day of the
second calendar quarter following such Determination Date. Without limiting any
of the other rights and remedies of the Bank under this Agreement, in the event
the Borrower shall fail to deliver the financial statements required under
Section 6.1 when required for any Determination Date, the Applicable Margin
shall be adjusted to, or remain at, as the case may be, the highest level set
forth in the definition of the term "Applicable Margin" until such time as such
financial statements are so delivered and demonstrate that the Applicable Margin
should be set at a different level in accordance with such definition and this
Section 2.9.
2.10 LETTERS OF CREDIT. Subject to the terms of this Agreement, the Borrower may
request Letters of Credit at any time prior to the Termination Date. Each
request must be in the form of the Letter of Credit Documents. Each Letter of
Credit must expire on the earlier of the Termination Date or twelve months after
its issuance date.
2.11 LETTER OF CREDIT COMMISSIONS. Each Letter of Credit is subject to a
commission in the amount equal to the greater of $250 or 1% per annum of the
face amount plus the costs of issuance.
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2.12 BORROWING BASE ADJUSTMENTS. The Borrower agrees that if at any time any
trade account receivable or any inventory of the Borrower or any Guarantor fails
to constitute Eligible Account Receivable, eligible Unbilled Accounts Receivable
or Eligible Inventory, as the case may be, for any reason, the Bank may, at any
time and notwithstanding any prior classification of eligibility, classify such
asset or property as ineligible and exclude the same from the computation of the
Facility A Borrowing Base or the Facility B Borrowering Base, as the case may
be, without in any way impairing the rights of the Bank in and to the same under
any Security Agreement.
2.13 SECURITY AND COLLATERAL. To secure the payment when due of the Notes
and all other obligations of the Borrower under this Agreement to the Bank, the
Borrower shall execute and deliver, or cause to be executed and delivered, to
the Bank Security Documents granting the following:
i) Security interests in all present and future accounts, inventory,
general intangibles, chattel paper, instruments, equipment, fixtures, and all
other personal property of the Borrower.
ii) Mortgage liens on the Mortgaged Property.
iii) Guarantees of each Guarantor.
iv) Security interests in all present and future accounts, inventory,
general intangibles, chattel paper, instruments, equipment, fixtures, and all
other personal property of the Guarantors.
v) Pledge of 65% of the stock of Perceptron BV owned by the Borrower
and a pledge of 100% of the stock of Perceptron GmbH owned by Perceptron BV,
which shall be completed within 45 days after the Effective Date by execution
and delivery of Pledge Agreements or similar documents as required by the
applicable foreign jurisdictions to create a first priority perfected pledge of
such stock.
vi) All other security and collateral described in the Security
Documents.
2.14 AMENDMENT AND RESTATEMENT. This Agreement amends and restates the
Existing Credit Agreement as of the Effective Date. All Obligations (as defined
in the Existing Credit Agreement) outstanding under the Existing Credit
Agreement shall constitute Obligations under this Agreement. The Obligations and
other liabilities pursuant hereto are issued in exchange and replacement for the
Obligations (as defined in the Existing Credit Agreement) and other liabilities
under the Existing Credit Agreement, shall not be a novation or satisfaction
thereof and shall be entitled to the same collateral with the same priority.
ARTICLE 3 - CHANGE IN CIRCUMSTANCES
3.1 YIELD PROTECTION. If any change after the date of this Agreement
(whether or not now contemplated) in any law or governmental or
quasi-governmental rule, regulation, policy,
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guideline or directive (whether or not having the force of law), or change after
the date of this Agreement (whether or not now contemplated) in any
interpretation of them, or compliance by the Bank with any of them after any
such change becomes effective,
(i) subjects the Bank or any applicable Lending Installation to any tax,
duty, charge or withholding on or from payments due from the Borrower (excluding
taxation of the overall net income of the Bank or applicable Lending
Installation), or changes the basis of taxation of payments to the Bank in
respect of its Loans or other amounts due to it under this Agreement, or
(ii) imposes or increases or deems applicable any reserve, assessment,
insurance charge, special deposit or similar requirement against assets of,
deposits with or for the account of, or credit extended by, the Bank or any
applicable Lending Installation (other than reserves and assessments taken into
account in determining the interest rate applicable to Eurodollar Rate Loans),
or
(iii) imposes any other condition the result of which is to increase the
cost to the Bank or any applicable Lending Installation of making, funding or
maintaining loans or reduces any amount receivable by the Bank or any applicable
Lending Installation in connection with loans, or requires the Bank or any
applicable Lending Installation to make any payment calculated by reference to
the amount of loans held or interest received by it, by an amount deemed
material by the Bank, or
(iv) affects the amount of capital required or expected to be maintained by
the Bank or any Lending Installation or any corporation controlling the Bank,
and the Bank determines the amount of capital required is increased by or based
on the existence of this Agreement or its obligation to make Loans under this
Agreement or of commitments of this type,
then, within 15 days of the Bank's demand, the Borrower must pay the Bank that
portion of the increased expense incurred (including, in the case of Section
3.1(iv), any reduction in the rate of return on capital to an amount below that
which it could have achieved but for the law, rule, regulation, policy,
guideline or directive, and after taking into account the Bank's policies as to
capital adequacy) or reduction in amounts received which the Bank determines is
attributable to making, funding and maintaining its Loans and its Commitments
(after taking into account the Bank's policies with respect to capital
adequacy). The Bank represents that it does not know of any amount that would be
payable under this Section 3.1 as of the date of this Agreement, although there
may be current laws or regulations that may cause an amount to be payable
hereunder after the date of this Agreement. The Bank will not assess amounts
under this Section 3.1 unless the Bank is generally charging such amounts to the
majority of its similarly situated customers.
3.2 AVAILABILITY OF RATE OPTIONS. If the Bank determines that maintenance of its
Eurodollar Rate Loans at a suitable Lending Installation would violate any
applicable law, rule, regulation or directive, whether or not having the force
of law, or if the Bank determines that (i) deposits of a type and maturity
appropriate to match fund Eurodollar Rate Loans are not available to it, or (ii)
a Rate Option does not accurately reflect the cost of making or maintaining a
Loan at that Rate Option, then the Bank may suspend the availability of the
affected Rate Option (other than the
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Floating Rate) and require any Eurodollar Rate Loans outstanding under an
affected Rate Option to be, at the Borrower's option, either repaid or converted
to an unaffected Rate Option.
3.3 FUNDING INDEMNIFICATION. If any payment of a Eurodollar Rate Loan occurs on
a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a Eurodollar Rate Loan is
not made on the date specified by the Borrower for any reason other than default
by the Bank, the Borrower indemnifies the Bank for any loss or cost incurred by
it resulting from these facts, including without limitation any loss or cost in
liquidating or employing deposits acquired to fund or maintain the Eurodollar
Rate Loan.
3.4 BANK STATEMENTS; SURVIVAL OF INDEMNITY. To the extent reasonably possible,
the Bank will designate an alternate Lending Installation with respect to
Eurodollar Rate Loans to reduce any liability of the Borrower to the Bank under
Section 3.1 or to avoid the unavailability of a Rate Option under Section 3.2,
so long as that designation is not disadvantageous to the Bank. The Bank will
deliver a written statement as to the amount due, if any, under Section 3.1 or
3.3. That written statement will set forth in reasonable detail the calculations
upon which the Bank determined the amount, and is final, conclusive and binding
on the Borrower in the absence of manifest error. Determination of amounts
payable under those Sections in connection with a Eurodollar Rate Loan will be
calculated as though the Bank funded its Eurodollar Rate Loan through the
purchase of a deposit of the type and maturity corresponding to the deposit used
as a reference in determining the Eurodollar Rate applicable to that Loan,
whether in fact that is the case or not. Unless otherwise provided in this
Agreement, the amount specified in the written statement is payable on demand
after receipt by the Borrower of the written statement. The obligations of the
Borrower under Sections 3.1 and 3.3 survive payment of the Obligations and
termination of this Agreement.
ARTICLE 4 - CONDITIONS PRECEDENT
4.1 INITIAL LOAN OR LETTER OF CREDIT. The Bank is not required to make the
initial Loan or issue the initial Letter of Credit under this Agreement unless
the Borrower has furnished, or cause to be furnished, to the Bank the following
documents and completed the following matters, in form and substance
satisfactory to the Bank:
A) CHARTER DOCUMENTS. Certificates of recent date of the appropriate
authority or official of the Borrower's and each Guarantor's respective state of
incorporation (listing all charter documents of the Borrower and each Guarantor,
respectively, on file in that office if such listing is available) and
certifying as to the good standing and corporate existence of the Borrower and
each Guarantor, respectively, together with copies of such charter documents of
the Borrower and each Guarantor, certified as of a recent date by such authority
or official and certified as true and correct as of the Effective Date by a duly
authorized officer of the Borrower;
B) BY-LAWS AND CORPORATE AUTHORIZATIONS. Copies of the by-laws of the
Borrower and each Guarantor together with all authorizing resolutions and
evidence of other corporate action taken by the Borrower and each Guarantor to
authorize the execution, delivery
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and performance by the Borrower and each Guarantor of this Agreement, the Notes
and the Security Documents to which the Borrower and such Guarantor,
respectively is a party and the consummation by the Borrower and such Guarantor,
respectively of the transactions contemplated hereby, certified as true and
correct as of the Effective Date by a duly authorized officer of the Borrower
and each Guarantor, respectively;
C) INCUMBENCY CERTIFICATE. Certificates of incumbency of the Borrower and
each Guarantor containing, and attesting to the genuineness of, the signatures
of those officers authorized to act on behalf of the Borrower and such Guarantor
in connection with this Agreement, the Notes and the Security Documents to which
the Borrower or such Guarantor is a party and the consummation by the Borrower
and such Guarantor of the transactions contemplated hereby, certified as true
and correct as of the Effective Date by a duly authorized officer of the
Borrower and each Guarantor;
D) NOTES. The Notes duly executed on behalf of the Borrower for the Bank;
E) SECURITY DOCUMENTS. The Security Documents duly executed on behalf of
the Borrower and each Guarantor, as the case may be, granting to the Bank (or
confirming any Security Document previously granted to the Bank) the collateral
and security intended to be provided pursuant to Section 2.13, together with:
i) RECORDING, FILING, ETC. Evidence of the recordation, filing and
other action (including payment of any applicable taxes or fees) in such
jurisdictions as the Bank may deem necessary or appropriate with respect to
the Security Documents, including the filing of financing statements and
similar documents which the Bank may deem necessary or appropriate to
create, preserve or perfect the liens, security interests and other rights
intended to be granted to the Bank thereunder, together with Uniform
Commercial Code record searches in such offices as the Bank may request;
ii) TITLE INSURANCE. Policy of mortgage title insurance, issued by an
insurer and in amounts satisfactory to the Bank insuring the interest of
the Bank under the Mortgage without standard exceptions and without any
special exceptions not acceptable to the Bank and containing such further
endorsements, affirmative coverage and other terms as the Bank may request;
iii) SURVEYS. Survey of the property subject to the Mortgage made by a
land surveyor licensed in the State in which such property is located and
acceptable to the Bank complying with the Minimum Standard Detail
Requirements for Land Title Surveys as adopted by the American Title
Association and the American Congress on Surveying and Mapping and showing
such details as the Bank may request, including flood zone certification,
certified to the Bank and the issuer of such mortgage title insurance
policy in form acceptable to the Bank;
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iv) LEASED PROPERTY; LANDLORD WAIVERS. A schedule setting forth all
real property leased by the Borrower and each Guarantor certified as true
and correct as of the Effective Date by a duly authorized officer of the
Borrower, and the Borrower agrees to use its best efforts to obtain an
agreement of each landlord under such leases, in form and substance
acceptable to the Bank, waiving its distraint, lien and similar rights with
respect to any property subject to the Security Documents and agreeing to
permit the Bank to enter such premises in connection therewith; provided,
that Borrower shall not be required to obtain such landlord waiver with
respect to any leased location which is operated as a sales office or where
the value of the Borrower's assets is immaterial, in the discretion of the
Bank;
v) CASUALTY AND OTHER INSURANCE. Evidence that the casualty and other
insurance required pursuant to Section 5.1(c), each Security Agreement and
paragraph 4 of the Mortgage is in full force and effect; and
F) ENVIRONMENTAL CERTIFICATE. An Environmental Certificate;
G) LEGAL OPINIONS. The favorable written opinion of counsel for the
Borrower and each Guarantor in form and substance satisfactory to the Bank;
H) CONSENTS, APPROVALS, ETC. Copies of all governmental and nongovernmental
consents, approvals, authorizations, declarations, registrations or filings, if
any, required on the part of the Borrower or any Guarantor in connection with
the execution, delivery and performance of this Agreement, the Notes, the
Security Documents or the transactions contemplated hereby or as a condition to
the legality, validity or enforceability of this Agreement, the Notes or any of
the Security Documents, certified as true and correct and in full force and
effect as of the Effective Date by a duly authorized officer of the Borrower,
or, if none are required, a certificate of such officer to that effect;
I) FEES. The facility fee described in Section 2.3;
J) PERCEPTRON GMBH LETTERS OF CREDIT. Perceptron GmbH shall have provided
cash collateral to secure all outstanding letters of credit issued by Bank One,
NA, or an affiliate, for the account of Perceptron GmbH which have an expiry
date greater than ninety (90) days after the Effective Date; and
K) Such other documents, and completion of such other matters, as the Bank
may reasonably request.
4.2 EACH LOAN. The Bank is not required to make any Loan or issue any Letter of
Credit, unless on the applicable borrowing date (i) there exists no Default or
Unmatured Default, (ii) the warranties contained in Article 5 are true and
correct as of such borrowing date, and (iii) all legal matters incident to
making the Loan or issuing the Letter of Credit, as the case may be, including
without limitation executed and delivered Letter of Credit Documents, are
reasonably satisfactory to the Bank and its counsel.
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ARTICLE 5 - WARRANTIES
The Borrower warrants to the Bank that:
5.1 CORPORATE EXISTENCE AND STANDING. Each of the Borrower and the Subsidiaries
is a corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation and has all requisite authority to
conduct its business in each jurisdiction in which its business is conducted
except where the failure to have that authority would not have a Material
Adverse Effect.
5.2 AUTHORIZATION AND VALIDITY. Each of the Borrower and the Guarantors has the
corporate power and authority and legal right to execute and deliver this
Agreement, the Notes and the Security Documents to which it is a party and to
perform its obligations under them. The execution and delivery by the Borrower
and the Guarantors of this Agreement, the Notes and the Security Documents to
which it is a party and the performance of its obligations under them have been
duly authorized by proper corporate proceedings, and this Agreement, the Notes
and the Security Documents to which it is a party each constitute legal, valid
and binding obligations of the Borrower or the Guarantor, as the case may be,
enforceable against the Borrower or the Guarantor, as the case may be, in
accordance with their respective terms.
5.3 NO CONFLICT; GOVERNMENT CONSENT. Neither the execution and delivery by the
Borrower or any Subsidiary of this Agreement, the Notes and the Security
Documents, nor the consummation of the transactions described in them, nor
compliance with their provisions will violate any law, rule, regulation, order,
writ, judgment, injunction, decree or award binding on the Borrower or any
Subsidiary, or the Borrower's or any Subsidiary's articles of incorporation or
bylaws, or the provisions of any indenture, instrument or agreement to which the
Borrower or any Subsidiary is a party or is subject, or by which it or its
property is bound, or conflict with or constitute a default under any indenture,
instrument or agreement, or result in the creation or imposition of any Lien in,
of or on the property of the Borrower or a Subsidiary pursuant to the terms of
any indenture, instrument or agreement. No order, consent, approval, license,
authorization, or validation of, or filing, recording or registration with, or
exemption by, or other action in respect of, any governmental or public body or
authority, or any subdivision of them, is required to authorize, or is required
in connection with the execution, delivery and performance of, or the legality,
validity, binding effect or enforceability of, this Agreement, the Notes or any
Security Document.
5.4 FINANCIAL STATEMENTS. The June 30, 2000 consolidated financial statements of
the Borrower and the Subsidiaries previously delivered to the Bank were prepared
in accordance with GAAP in effect on the date those statements were prepared and
fairly present the consolidated financial condition and operations of the
Borrower and the Subsidiaries at that date and the consolidated results of their
operations for the period then ended.
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5.5 MATERIAL ADVERSE CHANGE. Since June 30, 2000, there has been no material
adverse change in the business, properties, condition (financial or otherwise)
or results of operations of the Borrower and its Subsidiaries, taken as a whole,
other than what has been disclosed in official filings with the Securities and
Exchange Commission, copies of which have been made available to the Bank, and
other than such other information contained in written financial projections
delivered to the Bank prior to the Effective Date.
5.6 LITIGATION AND CONTINGENT OBLIGATIONS. Except as disclosed on Schedule 5.6
attached to this Agreement, there is no litigation, arbitration, governmental
investigation, proceeding or inquiry pending or, to the knowledge of any of
their officers, threatened against or affecting the Borrower or any Subsidiary
which is reasonably likely to have a Material Adverse Effect. The Borrower has
no material contingent obligations not provided for or disclosed in the
financial statements referred to in Section 5.4.
5.7 REGULATION U. Margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) constitutes less than 25% of those
assets of the Borrower and its Subsidiaries which are subject to any limitation
on sale, pledge, or other restriction under this Agreement.
5.8 COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries have complied in all
material respects with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency of them, having jurisdiction over the conduct of their respective
businesses or the ownership of their respective properties, except to the extent
that the failure to so qualify would not have a Material Adverse Effect.
5.9 TITLE TO PROPERTY; LIEN PRIORITY. The Borrower and its Subsidiaries have
good marketable title to each of their respective properties and assets, subject
to no Liens except Permitted Liens. The Security Documents grant to the Bank
first priority enforceable security interests which are not void or voidable in
all assets of the Borrower and the Guarantors.
ARTICLE 6 - COVENANTS
During the term of this Agreement, unless the Bank otherwise consents in
writing:
6.1 FINANCIAL REPORTING. The Borrower will maintain, for itself and each
Subsidiary, a system of accounting established and administered in accordance
with GAAP, and furnish to the Bank:
(i) Within 90 days after the close of each of its fiscal years, an
unqualified (except for qualifications relating to changes in accounting
principles or practices reflecting changes in GAAP and required or approved by
the Borrower's independent certified public accountants) audit report certified
by independent certified public accountants, reasonably acceptable to the Bank,
prepared in accordance with GAAP on a consolidated basis for itself and the
Subsidiaries, including a consolidated balance sheet as of the end of that
period, related consolidated
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statements of income and shareholders' equity, and a consolidated statement of
cash flows, together with the related consolidating worksheets for the income
statement and balance sheet certified by the chief financial officer of the
Borrower, and a certificate, in form and substance reasonably satisfactory to
the Bank, of the chief financial officer of the Borrower to the effect that a
computation (which computation shall accompany such certificate and shall be in
form and substance reasonably satisfactory to the Bank) showing compliance with
Sections 6.12, 6.13, 6.14 and 6.15 is in conformity with the requirements of
this Agreement.
(ii) Within 60 days after the close of the first three quarterly periods of
each of its fiscal years, for itself and the Subsidiaries, a consolidated
unaudited balance sheet as of the close of each such period and consolidated
statements of income and cash flows for the period from the beginning of that
fiscal year to the end of that quarter, all certified by the chief financial
officer of the Borrower, together with the related consolidating worksheets for
the income statement and balance sheet certified by the chief financial officer
of the Borrower, and a certificate, in form and substance satisfactory to the
Bank, of the chief financial officer of the Borrower to the effect that a
computation (which computation shall accompany such certificate and shall be in
form and substance reasonably satisfactory to the Bank) showing compliance with
Sections 6.12, 6.13, 6.14 and 6.15 is in conformity with the requirements of
this Agreement.
(iii) Within 60 days after the close of each of its quarterly periods of
each of its fiscal years, for Perceptron GmbH, a compiled unaudited balance
sheet as of the close of each such period and compiled statements of income and
cash flows for the period from the beginning of that fiscal year to the end of
that quarter, all certified by the chief financial officer of Perceptron GmbH,
together with the related compiled worksheets for the income statement and
balance sheet certified by the chief financial officer of Perceptron GmbH.
(iv) As soon as available and in any event not later than 30 days after the
close of each quarterly period of each of its fiscal years, the Borrower's
financial projections for the immediately following 12 months, in form and
detail satisfactory to the Bank.
(iv) No later than the 20th day of each month, a Borrowing Base Certificate
prepared as of the close of business on the last day of the preceding month,
together with supporting schedules, in form and detail satisfactory to the Bank,
setting forth such information as the Bank may request with respect to the
aging, value, location and other information relating to the computation of the
Borrowing Base and the eligibility of any property or assets included in such
computation, certified as true and correct by the chief financial officer of the
Borrower.
(v) As soon as available and in any event within 20 calendar days after the
end of each calendar month, a report of the Borrower's domestic accounts
receivable, including without limitation the amount, age and account debtor for
each domestic account receivable, a report setting forth a summary and aging of
Borrower's domestic accounts payable and a report of all domestic inventory of
the Borrower, all in form and substance satisfactory to the Bank.
(vi) Promptly upon furnishing it to its shareholders, copies of all
financial statements, reports and proxy statements so furnished.
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(vii) Promptly upon filing them, copies of all registration statements and
annual, quarterly, monthly or other regular reports which the Borrower or any
Subsidiary files with the Securities and Exchange Commission.
(viii) Any other information (including non-financial information) which
the Bank or any Lending Installation from time to time reasonably requests.
6.2 USE OF PROCEEDS. The Borrower will, and will cause each Subsidiary to, use
the Letters of Credit and proceeds of the Loans for general corporate purposes.
The Borrower may not, nor may it permit any Subsidiary to, use any of the
Letters of Credit or proceeds of the Loans to purchase or carry any "margin
stock" (as defined in Regulation U).
6.3 CONDUCT OF BUSINESS. The Borrower will, and will cause each Subsidiary to,
carry on and conduct its business in substantially the same manner and in
substantially the same fields of enterprise as it is presently conducted, and do
all things necessary to remain duly incorporated, validly existing and in good
standing as a domestic corporation in its jurisdiction of incorporation and
maintain all requisite authority to conduct its business in each jurisdiction in
which its business is conducted, except that, without limiting the requirements
of Section 6.15, the Borrower may dissolve or otherwise terminate the separate
existence of a Subsidiary if that dissolution or termination would not have a
Material Adverse Effect.
6.4 TAXES. The Borrower will, and will cause each Subsidiary to, timely file
complete and correct United States federal and applicable foreign, state and
local tax returns required by law, and pay when due all taxes, assessments and
governmental charges and levies on it or its income, profits or property, except
those which are being contested in good faith by appropriate proceedings and
with respect to which adequate reserves have been set aside.
6.5 COMPLIANCE WITH LAWS. The Borrower will, and will cause each Subsidiary to,
comply in all material respects with all laws, rules, regulations, orders,
writs, judgments, injunctions, decrees or awards to which it may be subject,
except to the extent such noncompliance would not have a Material Adverse
Effect.
6.6 MERGER. Neither the Borrower nor any Subsidiary will merge or consolidate
with or into any other Person unless the Borrower or such Subsidiary is the
legally surviving corporation and, after giving effect to the merger or
consolidation, no Default or Unmatured Default exists.
6.7 LIENS. The Borrower will not, nor will it permit any Subsidiary to, create,
incur, or suffer to exist any Lien in, of or on the property of the Borrower or
any Subsidiary, except:
(i) Liens for taxes, assessments or governmental charges or levies on its
property if they are not at the time delinquent or if they can be paid later
without penalty, or are being contested in good faith and by appropriate
proceedings.
(ii) Liens imposed by law, such as carriers', warehousemen's and mechanics'
liens and other similar liens arising in the ordinary course of business which
secure payment of obligations
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not more than 60 days past due or which are being contested in good faith by
appropriate proceedings and for which adequate reserves have been set aside on
its books.
(iii) Liens arising out of pledges or deposits under worker's compensation
laws, unemployment insurance, old age pensions, or other social security or
retirement benefits, or similar legislation.
(iv) Good faith deposits in connection with bids, tenders, contracts or
leases to which the Borrower or any of its Subsidiaries is a party for a purpose
other than borrowing money or obtaining credit, including rent security
deposits.
(v) Pledges or deposits to secure public or statutory obligations of the
Borrower or any of its Subsidiaries, or surety, customs or appeal bonds to which
the Borrower or any of its Subsidiaries is a party.
(vi) Liens affecting real property which constitute minor survey exceptions
or defects or irregularities in title, minor encumbrances, easements or
reservations of, or rights of others for, rights of way, sewers, electric lines,
telegraph and telephone lines and other similar purposes, or zoning or other
restrictions as to the use of such real property, provided that all of the
foregoing, in the aggregate, do not at any time materially detract from the
value of said properties or materially impair their use in the operation of the
businesses of the Borrower or any of its Subsidiaries.
(vii) Any Lien created to secure payment of a portion of the purchase price
of, or existing at the time of acquisition of, any tangible fixed asset acquired
by the Borrower or any of its Subsidiaries may be created or suffered to exist
upon such fixed asset if the outstanding principal amount of the indebtedness
secured by such Lien does not at any time exceed the purchase price paid by the
Borrower or such Subsidiary for such fixed asset and such indebtedness secured
by such Liens is permitted under Section 6.9; provided that such Lien does not
encumber any other asset at any time owned by the Borrower or such Subsidiary,
and provided, further, that not more than one such Lien shall encumber any such
fixed asset at any one time.
(viii) Judgment and other similar liens, the existence of which judgment
does not constitute a Default under Section 7.8.
(ix) Other Liens securing Permitted Debt.
(x) Liens existing on the date of this Agreement as described on Schedule
6.7 attached hereto.
6.8 NOTICE OF DEFAULT. The Borrower will, and will cause each Subsidiary to,
give prompt notice in writing to the Bank of the occurrence of any Default or
Unmatured Default and of any other development, financial or otherwise, which
might have a Material Adverse Effect or might materially adversely affect the
ability of the Borrower to repay the Obligations.
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6.9 DEBT. The Borrower will not, nor will it permit any Subsidiary to, incur or
permit to remain outstanding, debt for borrowed money or installment obligations
in an aggregate principal amount which, together with undertakings of others
guaranteed by the Borrower or for which the Borrower otherwise is secondarily
liable, exceeds $200,000 at any time, except the following ("Permitted Debt"):
(i) indebtedness owing to the Bank or, with respect to the Subsidiaries, any of
the Bank's affiliates, (ii) indebtedness of any Subsidiary of the Borrower owing
to any other Subsidiary of the Borrower, and (iii) other indebtedness reflected
in the latest financial statement of the Borrower furnished to the Bank prior to
execution of this Agreement and not to be paid with proceeds of borrowings under
this Agreement. For purposes of this covenant, the sale of any accounts
receivable is deemed the incurring of debt for borrowed money. Nothing in this
Section shall prohibit trade accounts payable and receivable between the
Borrower and its Subsidiaries or between any Subsidiary of the Borrower and any
other Subsidiary of the Borrower arising in the ordinary course of business and
on terms not less favorable to the Borrower than those which could be obtained
if the related transaction were an arm's length transaction with a person other
than an affiliate.
6.10 GUARANTIES. The Borrower will not, nor will it permit any Subsidiary to,
guarantee or otherwise become or remain secondarily liable on the undertaking of
another in an aggregate amount which, together with the aggregate outstanding
principal amount of debt for borrowed money and other installment obligations of
the Borrower and its Subsidiaries, exceeds $200,000 at any time, except for (i)
endorsement of drafts for deposit and collection in the ordinary course of
business and (ii) guaranties by the Subsidiaries of the Borrower of any
Permitted Debt owing by the Borrower or by any other Subsidiary of the Borrower.
6.11 ADVANCES AND INVESTMENTS. The Borrower will not, nor will it permit any
Subsidiary to, purchase or acquire any securities of, or make any loans or
advances to, or investments in, any Person, except (i) obligations of the United
States Government, open market commercial paper rated one of the top two ratings
by a rating agency of recognized standing, or certificates of deposit in insured
financial institutions, and (ii) loans and advances by any Subsidiary of the
Borrower to any other Subsidiary of the Borrower and advances (without any
repayment obligation) by any Subsidiary of the Borrower to the Borrower. Nothing
in this Section shall prohibit trade accounts payable and receivable between the
Borrower and its Subsidiaries or between any Subsidiary of the Borrower and any
other Subsidiary of the Borrower arising in the ordinary course of business and
on terms not less favorable to the Borrower than those which could be obtained
if the related transaction were an arm's length transaction with a person other
than an affiliate.
6.12 FUNDED DEBT TO EBITDA RATIO. The Borrower will not permit or suffer the
ratio of (i) the Funded Debt of the Borrower as of the fiscal quarter end
corresponding to the determination date to (ii) the EBITDA of the Borrower for
the period of four consecutive fiscal quarters of the Borrower then ending to
exceed (A) 19.00 to 1.00 as of Xxxxx 00, 0000, (X) 6.00 to 1.00 as of June 30,
2002, (C) 5.00 to 1.00 as of September 30, 2002 and December 31, 2002, and (D)
4.00 to 1.00 as of March 30, 2003 and as of the last day of each subsequent
fiscal quarter of the Borrower thereafter.
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6.13 EBITDA. The Borrower will not permit its EBITDA to be less than (i)
($7,400,000) for the period from July 1, 2000 through the end of its fiscal
quarter ending on or about June 30, 2001, (ii) ($1,400,000) for the period from
July 1, 2001 through the end of its fiscal quarter ending on or about September
30, 2001, (iii) $700,000 for the period from July 1, 2001 through the end of its
fiscal quarter ending on or about December 31, 2001, (iv) $1,800,000 for the
period from July 1, 2001 through the end of its fiscal quarter ending on or
about Xxxxx 00, 0000, (x) $3,000,000 for the period from July 1, 2001 through
the end of its fiscal quarter ending on or about June 30, 2002, (vi) ($400,000)
for the period from July 1, 2002 through the end of its fiscal quarter ending on
or about September 30, 2002, (vii) $1,700,000 for the period from July 1, 2002
through the end of its fiscal quarter ending on or about December 31, 2002,
(viii) $2,800,000 for the period from July 1, 2002 through the end of its fiscal
quarter ending on or about March 31, 2003 and (ix) $4,000,000 for the period
from July 1, 2002 through the end of its fiscal quarter ending on or about June
30, 2003.
6.14 FIXED CHARGE COVERAGE RATIO. The Borrower will not permit its Fixed Charge
Coverage Ratio to be less than (i) 0.00 to 1.00 as of the fiscal quarter end of
the Borrower corresponding to March 31, 2002, and (ii) 1.20 to 1.0 as of the
fiscal quarter end of the Borrower corresponding to June 30, 2002 and as of each
subsequent fiscal quarter end of the Borrower; such ratio to be determined as of
each fiscal quarter end of the Borrower (commencing with the fiscal quarter end
corresponding to March 31, 2002) for the period of four consecutive fiscal
quarters of the Borrower then ending
6.15 TOTAL LIABILITIES TO TANGIBLE NET WORTH RATIO. The Borrower will not permit
the ratio of Total Liabilities to Tangible Net Worth to exceed 0.90 to 1.00 at
any time.
6.16 DISPOSITION OF ASSETS. The Borrower will not, nor will it permit any
Subsidiary to, sell, lease, license, transfer, assign or otherwise dispose of
all or a substantial portion of its business, assets, rights, revenues or
property, real, personal or mixed, tangible or intangible, whether in one or a
series of transactions, other than (i) inventory sold in the ordinary course of
business upon customary credit terms, (ii) sales of scrap or obsolete material
or equipment and (iii) transfers between Subsidiaries of the Borrower.
6.17 DIVIDENDS. The Borrower will not make, pay, declare or authorize any
dividend, payment or other distribution in respect of any class of its capital
stock or any dividend, payment or distribution in connection with the
redemption, purchase, retirement or other acquisition, directly or indirectly,
of any shares of its capital stock, other than such dividends, payments or other
distributions to the extent payable solely in shares of the capital stock of the
Borrower. For purposes of this Section 6.16, "capital stock" shall include
capital stock and any securities exchangeable for or convertible into capital
stock and any warrants, rights or other options to purchase or otherwise acquire
capital stock or such securities.
6.18 NEGATIVE PLEDGE LIMITATION. The Borrower will not enter into any agreement,
with any person other than the Bank pursuant hereto, which prohibits or limits
the ability of the Borrower or any Subsidiary to create, incur, assume or suffer
to exist any Lien upon any of its assets, rights, revenues or property, real,
personal or mixed, tangible or intangible, whether now owned or hereafter
acquired.
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6.19 ADDITIONAL SECURITY AND COLLATERAL. Promptly (i) execute and deliver and
cause each Subsidiary of the Borrower and the Guarantors to execute and deliver,
additional Security Documents, within 30 days after request therefor by the
Bank, sufficient to grant to the Bank liens and security interests in any after
acquired property of the type described in Section 2.13, and (ii) cause each
person becoming a Subsidiary of the Borrower or any Guarantor from time to time
to execute and deliver to the Bank, within 30 days after such person becomes a
Subsidiary, a Guaranty and Security Documents, together with other related
documents described in Section 4.1, sufficient to grant to the Bank liens and
security interests in all collateral of the type described in Section 2.13. The
Borrower shall notify the Bank, within 10 days after the occurrence thereof, of
the acquisition of any property by the Borrower or any Guarantor that is not
subject to the existing Security Documents, any person's becoming a Subsidiary
and any other event or condition that may require additional action of any
nature in order to preserve the effectiveness and perfected status of the liens
and security interests of the Bank with respect to such property pursuant to the
Security Documents.
ARTICLE 7 - DEFAULTS
The occurrence of any one or more of the following events constitutes a Default:
7.1 Any warranty made or deemed made by or on behalf of the Borrower or any
Subsidiary to the Bank under or in connection any Loan Document, any Loan, any
Letter of Credit or any certificate or information delivered in connection with
any Loan Document is materially false on the date as of which it is made.
7.2 The principal of any Note is not paid when due, or any interest or any fee
or other obligations under this Agreement, the Notes or any other Loan Document
are not paid within three days after they become due.
7.3 The Borrower or any Subsidiary breaches any of the terms of Article 6 and,
with respect to any breach under 6.1, 6.3, 6.4, 6.5, 6.7, 6.8, 6.9, 6.10, 6.11
or 6.18, such breach is not remedied within 10 days.
7.4 The Borrower or any Subsidiary breaches (other than a breach which
constitutes a Default under Section 7.1, 7.2 or 7.3) any of the terms of this
Agreement and such breach is not remedied within thirty days after written
notice from the Bank or the Borrower or any Subsidiary breaches any other
agreement with the Bank or any of its affiliates or any default occurs under any
other agreement with the Bank or any of its affiliates and such breach or
default is not remedied within any grace period provided with respect thereto
and after any required notices have been given by the Bank or such affiliate.
7.5 The Borrower or any Subsidiary fails to pay any debt for borrowed money when
due, which individually or together with other such debt as to which any such
failure exists has an
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aggregate outstanding principal amount in excess of $100,000; or the Borrower or
any Subsidiary defaults in the performance of any term contained in any
agreement under which that debt was created or is governed, the effect of which
is to cause, or to permit the holder or holders of that debt to cause, that debt
to become due prior to its stated maturity; or any debt of the Borrower or any
Subsidiary is declared to be due and payable or required to be prepaid or
repurchased (other than by a regularly scheduled payment) prior to its stated
maturity, which individually or together with other such debt as to which any
such failure exists has an aggregate outstanding principal amount in excess of
$100,000; or the Borrower or any Subsidiary does not pay, or admits in writing
its inability to pay, its debts generally as they become due.
7.6 The Borrower or any Subsidiary (i) has an order for relief entered with
respect to it under present or future Federal bankruptcy laws, (ii) makes an
assignment for the benefit of creditors, (iii) applies for, seeks, consents to,
or acquiesces in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any substantial part of its property,
(iv) institutes any proceeding seeking an order for relief under present or
future Federal bankruptcy laws, or seeking to adjudicate it a bankrupt or
insolvent, or seeking dissolution, winding up, liquidation, reorganization,
arrangement, adjustment or composition of it or its debts under any law relating
to bankruptcy, insolvency or reorganization or relief of debtors, or fails to
file an answer or other pleading denying the material allegations of any such
proceeding filed against it, (v) takes any corporate action to authorize or
effect any of the foregoing actions set forth in this Section 7.6 or (vi) fails
to contest in good faith any appointment or proceeding described in Section 7.7.
7.7 Without the application, approval or consent of the Borrower or any
Subsidiary, a receiver, trustee, examiner, liquidator or similar official is
appointed for the Borrower or any Subsidiary or any substantial part of its
property, or a proceeding described in Section 7.6(iv) is instituted against the
Borrower or any Subsidiary and that appointment continues undischarged or those
proceedings continue undismissed or unstayed for a period of 60 consecutive
days.
7.8 The Borrower or any Subsidiary shall fail within 30 days to pay, bond or
otherwise discharge any judgment or order for the payment of money in excess of
$500,000, which is not stayed on appeal or otherwise being appropriately
contested in good faith or is not fully insured against, within the applicable
period of limitations for appealing such judgment or order and prior to the
denial of any such appeal.
7.9 Any reportable event (as defined in Section 4043 of ERISA) occurs in
connection with any plan (as defined in ERISA) which results in or could result
in a Material Adverse Effect and such reportable event is not corrected within
30 days after the occurrence thereof.
7.10 Any Person, or two or more Persons acting in concert, acquires beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 30% or more of the
outstanding shares of the Borrower's voting stock.
7.11 Any event of default described in any Loan Document shall have occurred and
be continuing, or any material provision of any Loan Document shall at any time
for any reason
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cease to be valid and binding and enforceable against any obligor thereunder, or
the validity, binding effect or enforceability thereof shall be contested by any
person, or any obligor, shall deny that it has any or further liability or
obligation thereunder, or any Loan Document shall be terminated, invalidated or
set aside, or be declared ineffective or inoperative or in any way cease to give
or provide to the Bank the benefits purported to be created thereby.
ARTICLE 8 - ACCELERATION; REMEDIES; AND AMENDMENTS
8.1 ACCELERATION. If any Default described in Section 7.6 or 7.7 occurs with
respect to the Borrower, the Commitment and the obligation of the Bank to make
Loans automatically terminates and the Obligations are immediately due and
payable without any election or action on the part of the Bank. If any other
Default occurs, the Bank may terminate or suspend the Commitment and its
obligation to make Loans, or declare the Obligations due and payable, or both,
whereupon the Obligations are immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower expressly
waives.
8.2 PRESERVATION OF RIGHTS. No delay or omission of the Bank to exercise any
right under this Agreement or any Note impairs that right nor can it be
construed to waive any Default or acquiesce in any Default, and the making of a
Loan notwithstanding the existence of a Default or the inability of the Borrower
to satisfy the conditions precedent to that Loan does not constitute a waiver or
acquiescence. Any single or partial exercise of any right does not preclude any
other or further exercise of it or the exercise of any other right, and no
waiver, amendment or other variation of the terms of this Agreement or any Note
is valid unless in writing signed by the Bank and the Borrower and then only to
the extent that writing specifies. All remedies contained in this Agreement and
the Notes or by law afforded are cumulative and all are available to the Bank
until the Obligations have been paid in full.
8.3 AMENDMENTS. Subject to the provisions of this Article 8, the Bank and the
Borrower may enter into agreements supplementing this Agreement for the purpose
of adding or modifying this Agreement, the Notes or any other Loan Document or
changing in any manner the rights of the Bank or the Borrower or waiving any
Default.
8.4 SETOFF. In addition to and without limiting any rights of the Bank under
applicable law, if the Borrower becomes insolvent, howsoever evidenced, or any
Default occurs, any and all deposits (including all account balances, whether
provisional or final and whether or not collected or available) and any other
debt at any time held or owing by the Bank to or for the credit or account of
the Borrower may be offset and applied toward the payment of the Obligations
owing to the Bank, whether or all or any part of the Obligations are then due.
ARTICLE 9 - GENERAL PROVISIONS
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9.1 SURVIVAL OF WARRANTIES. All warranties of the Borrower contained in this
Agreement survive the delivery of the Notes and the making of the Loans and the
issuance of Letters of Credit.
9.2 TAXES. Any taxes (excluding income taxes) or other similar assessments or
charges payable or ruled payable by any governmental authority in respect of
this Agreement and the Note must be paid by the Borrower, together with interest
and penalties, if any.
9.3 EXPENSES; INDEMNIFICATION. The Borrower must reimburse the Bank for any
costs, internal charges and out-of-pocket expenses (including reasonable
attorneys' fees and time charges of attorneys for the Bank, who may be employees
of the Bank) paid or incurred by the Bank in connection with the preparation,
review, execution, delivery, amendment, modification; administration, collection
and enforcement of this Agreement and the other Loan Documents; provided that
attorneys fees in connection with the preparation and negotiation of the Loan
Documents up and until the Effective Date shall not exceed an amount to be
agreed upon between the Borrower and the Bank's counsel plus costs. The Borrower
further indemnifies the Bank, its directors, officers and employees against all
losses, claims, damages, penalties, judgments, liabilities and expenses
(including without limitation all expenses of litigation or preparation for
litigation whether or not the Bank is a party) which any of them pay or incur
arising out of or relating to this Agreement or any other Loan Document, the
transactions described in this Agreement or the direct or indirect application
or proposed application of the proceeds of any Loan, provided, however, that the
Borrower shall not be required to indemnify the Bank or any such other person,
to the extent, but only to the extent, that such losses, claims, damages,
penalties, judgments, liabilities or expenses are of a type generally borne by
lenders in the ordinary course of business and are not material in amount in the
aggregate, or which are attributable to the gross negligence or willful
misconduct of the Bank. The obligations of the Borrower under this Section
survive the termination of this Agreement.
9.4 SUCCESSORS AND ASSIGNS. The terms of this Agreement and the other Loan
Documents bind and benefit the Borrower and the Bank and their respective
successors and assigns, except that the Borrower has no right to assign its
rights or obligations under this Agreement or any other Loan Documents. The Bank
may, in the ordinary course of its commercial banking business and in accordance
with applicable law, at any time sell to one or more banks or other entities
participating interests in any Loan, the Notes or the Commitments. The Bank may,
with the consent of the Borrower, which consent may not be unreasonably
withheld, assign to one or more banks or other entities all or any part of its
rights and obligations under this Agreement, the Notes or the Loan Documents,
and the Borrower releases the Bank for the amount so assigned.
9.5 GIVING NOTICE. Except as otherwise permitted by Section 2.7 with respect to
borrowing notices, all notices, requests and other communications to any party
must be in writing (including bank wire, telex, facsimile transmission or
similar writing) and must be given to a party: (y) in the case of the Borrower
or the Bank, at its address, facsimile number or telex number set forth on the
signature page below, or (z) in the case of any party, whatever other address,
facsimile number or telex number that party specifies for the purpose, by notice
to the other. Each notice, request or other communication is effective (i) if
given by telex, when it is transmitted to the telex number specified in this
Section and the appropriate answerback is received, (ii) if given by
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facsimile transmission, when transmitted to the facsimile number specified in
this Section and confirmation of receipt is received, (iii) if given by mail, 72
hours after that communication is deposited in the mails with first class
postage prepaid, addressed as required, or (iv) if given by any other means,
when delivered at the address specified in this Section. However, notices to the
Bank under Article 2 are not effective until received.
ARTICLE 10 - GOVERNING LAW; JURISDICTION; JURY TRIAL WAIVER
10.1 CHOICE OF LAW. This Agreement and the Notes are to be construed in
accordance with the internal laws (but not the law of conflicts) of Michigan.
10.2 CONSENT TO JURISDICTION. The Borrower irrevocably submits to the
non-exclusive jurisdiction of any United States federal or Michigan state court
sitting in Michigan in any action or proceeding arising out of or relating to
any Loan, and the Borrower irrevocably agrees that all such claims may be heard
and determined in any such court and irrevocably waives any present and future
objection it may have as to the venue of any action or proceeding brought in
that court, or that that court is an inconvenient forum. Any judicial proceeding
by the Borrower against the Bank or any affiliate of the Bank involving,
directly or indirectly, any matter in any way arising out of, related to, or
connected with any Loan must be brought only in a court in Michigan.
10.3 WAIVER OF JURY TRIAL. The Bank and the Borrower knowingly and voluntarily
waive any right either of them to have to a trial by jury in any proceeding
(whether sounding in contract or tort) which is in any way connected with this
or any related agreement, or the relationship established under them. This
provision may only be modified in a written instrument executed by the Bank and
the Borrower.
[The rest of this page intentionally left blank.]
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EXECUTED as of the date first written above.
BORROWER: BANK:
PERCEPTRON, INC. BANK ONE, MICHIGAN
By: /S/ Xxxx Xxxxxx By: /S/ Xxxxx Xxxxx
--------------------------- -------------------------
Xxxx Xxxxxx Xxxxx Xxxxx
Its: Chief Financial Officer Its: Vice President
--------------------------- -------------------------
By: /S/ Xxxxxx Xxxxx
---------------------------
Xxxxxx Xxxxx
Its: Controller
ADDRESS FOR NOTICES: ADDRESS FOR NOTICES:
00000 Xxxxxxx 00000 Xxxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000 Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Phone: (000) 000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Attention: Xxxx Xxxxxx Attention: Xxxxx Xxxxx
ANNARBOR 7-3498 00000-0-0
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