EXECUTION VERSION
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CREDIT AGREEMENT
dated as of July 31, 2007
among
KINETIC CONCEPTS, INC.
as Borrower
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
CITIBANK, N.A.
as Administrative Agent
XXXXX FARGO BANK, N.A.
as Issuing Bank
CITIGROUP GLOBAL MARKETS INC.
as Sole Lead Arranger and Sole Book Runner
and
BANK OF AMERICA, N.A., JPMORGAN CHASE BANK, N.A.,
UBS SECURITIES LLC and WACHOVIA BANK, NATIONAL ASSOCIATION
as Co-Syndication Agents
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS.................................1
SECTION 1.01. Certain Defined Terms......................................1
SECTION 1.02. Certain Rules of Construction.............................35
SECTION 1.03. Computation of Time Periods...............................36
SECTION 1.04. Rounding..................................................36
SECTION 1.05. Times of Day..............................................36
SECTION 1.06. Accounting Terms..........................................36
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCES...............................37
SECTION 2.01. The Advances..............................................37
SECTION 2.02. Making of Advances........................................37
SECTION 2.03. Interest..................................................38
SECTION 2.04. Interest Rate Determinations..............................39
SECTION 2.05. Conversion of Advances....................................40
SECTION 2.06. Rate Options for Advances; Maximum Interest Periods.......41
SECTION 2.07. Payments and Computations.................................41
SECTION 2.08. Fees......................................................43
SECTION 2.09. Voluntary Reduction of Commitments........................43
SECTION 2.10. Repayment.................................................44
SECTION 2.11. Increased Costs; Capital Requirements and Reserves on
Eurocurrency Rate Advances................................45
SECTION 2.12. Illegality................................................47
SECTION 2.13. [Intentionally Omitted]...................................47
SECTION 2.14. Taxes.....................................................47
SECTION 2.15. Sharing of Payments, Etc..................................51
SECTION 2.16. Compensation for Losses...................................51
SECTION 2.17. Mitigation Obligations; Replacement of Lenders............52
SECTION 2.18. Non-Receipt of Funds by the Administrative Agent..........53
SECTION 2.19. Termination Date..........................................54
SECTION 2.20. Failure to Satisfy Conditions Precedent...................54
SECTION 2.21. Obligations of Lenders Several............................54
SECTION 2.22. Evidence of Debt..........................................54
SECTION 2.23. Increase in the Aggregate Commitments.....................55
SECTION 2.24. Judgment Currency.........................................57
SECTION 2.25. Market Disruption; Denomination of Amounts in Dollars;
Dollar Equivalent of Reimbursement Obligations............58
ARTICLE III THE LETTERS OF CREDIT...........................................59
SECTION 3.01. The Letters of Credit.....................................59
SECTION 3.02. Letter of Credit Compensation.............................60
SECTION 3.03. Repayment of Letter of Credit Loans.......................60
SECTION 3.04. Issuance of Letters of Credit.............................61
SECTION 3.05. Replacement by the Issuing Bank...........................64
ARTICLE IV CONDITIONS TO EFFECTIVENESS AND LENDING.........................65
SECTION 4.01. Conditions Precedent to Effectiveness.....................65
SECTION 4.02. Conditions Precedent to Each Borrowing....................69
SECTION 4.03. Determinations Under Section 4.01.........................69
ARTICLE V REPRESENTATIONS AND WARRANTIES..................................70
SECTION 5.01. Representations and Warranties of the Borrower............70
ARTICLE VI COVENANTS OF THE BORROWER.......................................74
SECTION 6.01. Affirmative Covenants.....................................74
SECTION 6.02. Negative Covenants........................................80
SECTION 6.03. Financial Covenants.......................................90
SECTION 6.04. Offshore Transaction......................................90
ARTICLE VII EVENTS OF DEFAULT...............................................91
SECTION 7.01. Events of Default.........................................91
SECTION 7.02. Actions in Respect of the Letters of Credit Upon
Event of Default; L/C Cash Collateral Account;
Investing of Amounts in the L/C Cash Collateral
Account; Release..........................................94
ARTICLE VIII THE AGENT.......................................................97
SECTION 8.01. Appointment and Authority.................................97
SECTION 8.02. Rights as a Lender........................................97
SECTION 8.03. Exculpatory Provisions....................................98
SECTION 8.04. Reliance by Administrative Agent..........................99
SECTION 8.05. Delegation of Duties......................................99
SECTION 8.06. Indemnification...........................................99
SECTION 8.07. Resignation of Administrative Agent......................100
SECTION 8.08. Non-Reliance on Administrative Agent and Other
Lenders..................................................101
SECTION 8.09. No Duties Imposed Upon Syndication Agents, Book
Runners or Arrangers.....................................101
ARTICLE IX MISCELLANEOUS..................................................101
SECTION 9.01. Amendments,Etc...........................................101
SECTION 9.02. Notices, Etc.............................................102
SECTION 9.03. No Waiver; Remedies......................................105
SECTION 9.04. Expenses; Indemnity; Damage Waiver.......................105
SECTION 9.05. Right of Set-off.........................................107
SECTION 9.06. Binding Effect...........................................107
SECTION 9.07. Successors and Assigns...................................107
SECTION 9.08. Confidentiality..........................................113
SECTION 9.09. Governing Law............................................114
SECTION 9.10. Execution in Counterparts................................114
SECTION 9.11. Survival of Representations and Warranties...............114
SECTION 9.12. Severability.............................................115
SECTION 9.13. Jurisdiction, Etc........................................115
SECTION 9.14. Waiver of Jury Trial.....................................116
SECTION 9.15. Patriot Act Notice.......................................116
SECTION 9.16. Preservation of Rights...................................116
SECTION 9.17. Delivery of Termination Statements and Mortgage
Releases.................................................117
SECTION 9.18. No Liability of the Issuing Bank.........................117
SECTION 9.19. Authority with Respect to Guarantees and Collateral
Documents................................................117
SECTION 9.20. Interest Laws............................................119
SECTION 9.21. Governmental Regulation..................................119
Schedules
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Schedule I - Initial Lenders - Applicable Lending Offices - Commitment
Amounts
Schedule II - Pricing Schedule
Schedule 3.01(e) - Existing Letters of Credit
Schedule 4.01(b) - Litigation
Schedule 5.01(q) - Subsidiaries
Schedule 6.02(a) - Existing Indebtedness
Schedule 6.02(b) - Existing Liens
Schedule 6.02(g) - Investments
Exhibits
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Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C -1 - Form of Assignment and Acceptance
Exhibit C -2 - Form of Assumption Agreement
Exhibit D - Form of Pledge and Security Agreement
Exhibit E - Form of Patent Security Agreement
Exhibit F - Form of Trademark Security Agreement
Exhibit G - Form of Copyright Security Agreement
Exhibit H - Form of Subsidiary Guaranty Agreement
Exhibit I - Form of Compliance Certificate
CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement") is entered into as of July
31, 2007 among KINETIC CONCEPTS, INC., a Texas corporation (the "Borrower"),
the banks, financial institutions and other institutional lenders (the
"Initial Lenders") listed on the signature pages hereof, and CITIBANK, N.A.
(in its individual capacity "Citibank") as agent (in such capacity, the
"Administrative Agent") for the Lenders (as hereinafter defined), XXXXX FARGO
BANK, N.A., as Issuing Bank, CITIGROUP GLOBAL MARKETS INC. ("CGMI"), as Sole
Lead Arranger and Sole Book Runner and BANK OF AMERICA, N.A., JPMORGAN CHASE
BANK, N.A., UBS SECURITIES LLC, WACHOVIA BANK, NATIONAL ASSOCIATION, as
Co-Syndication Agents.
The Borrower has requested that the Lenders provide a credit
facility to make Advances to the Borrower, and the Lenders are willing to do
so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement, the
following terms shall have the following meanings:
"Acceptance" means an Assignment and Acceptance or an Assumption
Agreement.
"Accountants" means Ernst & Young LLP (or any successor thereto),
or such other firm of certified public accountants of recognized national
standing selected by the Borrower and reasonably acceptable to the
Administrative Agent.
"Acquired EBITDA" means with respect to any Acquisition by the
Borrower or any of its Subsidiaries during any period, the portion of
consolidated net income of the Prior Owner thereof for such period
attributable to the Capital Stock or assets acquired by the Borrower or such
Subsidiary pursuant to such Acquisition, as the case may be, plus, to the
extent deducted in computing such portion of consolidated net income for such
period, the sum of (a) income Tax expense, (b) interest expense, (c)
depreciation and amortization expense and (d) other non-cash charges and
expenses, all as determined with respect to such Capital Stock or assets
while under the ownership of the Prior Owner in accordance with GAAP.
"Acquired Interest Expense" means with respect to any Acquisition
by the Borrower or any of its Subsidiaries during any period, the sum of (a)
the portion of interest expense, both expensed and capitalized, of the Prior
Owner thereof for such period determined in accordance with GAAP (including
that portion of payments under Financing Leases of the Prior Owner
attributable to interest expense of the Prior Owner for such period in
accordance with GAAP) attributable to any Indebtedness of the Prior Owner
which is assumed by the Borrower or any of its Subsidiaries pursuant to such
Acquisition and (b) the Interest Expense (as defined in clause (a) of the
definition thereof) that would have been incurred by the Borrower from the
beginning of such period through the date of consummation of such Acquisition
had the Indebtedness incurred by the Borrower or any of its Subsidiaries to
finance such Acquisition been incurred on the first day of such period
(assuming the rate of interest applicable to such Indebtedness during such
period was equal to the rate of interest applicable to such Indebtedness on
the date of consummation of such Acquisition).
"Acquisition" means as to any Person, the acquisition (in a single
transaction or a series of transactions) by such Person of (a) at least 50%
of the outstanding Capital Stock of any other Person, (b) all or
substantially all of the assets of any other Person or (c) assets
constituting one or more business units or divisions of any other Person.
"Advance" means each Advance (including Letter of Credit Loans)
made by a Lender to the Borrower pursuant to Article II and refers to a Base
Rate Advance or a Eurocurrency Rate Advance (each of which shall be a "Type"
of Advance).
"Advance Availability" means, at any particular time, the amount by
which (i) the Aggregate Commitment at such time exceeds (ii) the Total
Outstandings.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Administrative Agent's Account" means, (a) in respect of Dollars,
Citibank, N.A., ABA# 021-00-0089, Acct Name: Medium Term Finance, Acct#
36852248, Ref: KCI; (b) in respect of EUROS, Citibank, London, Swift:
CITIGB2l, Acct# 0000000, Acct Name: Citi NA New York Loans Agency, Ref: KCI;
(c) in respect of Canadian Dollars, Citibank Canada, Swift: XXXXXXXX, Acct#
2070035009, Acct Name: CIG Western Hemisphere Agency, Ref: KCI; (d) in
respect of Yen, Citibank Tokyo, Swift: XXXXXXXX, Acct# 221659414, Acct Name:
CIG Western Hemisphere; and (e) in respect of any other Agreed Currency, such
account as the Administrative Agent shall designate in a notice to the
Borrower and the Lenders.
"Aggregate Commitment" means the aggregate Commitments of all the
Lenders, as the same may be reduced or increased from time to time pursuant
to the terms hereof. The initial Aggregate Commitment is Five Hundred Million
and 00/100 Dollars ($500,000,000.00).
"Agreed Currencies" means at any time, (i) Dollars and (ii)(x) so
long as such currency remains an Eligible Currency, Euro, Sterling, Canadian
Dollars and Yen and (y) any other Eligible Currency which the Borrower
requests the Administrative Agent to include as an Agreed Currency hereunder
and which is acceptable to all of the Lenders; provided, that if, after the
designation by the Lenders of any currency as an Agreed Currency, (x)
currency control or other exchange regulations are imposed in the country in
which such currency is issued with the result that different types of such
currency are introduced, (y) such currency is, in the determination of the
Administrative Agent, no longer readily available or freely traded or (z) in
the determination of the Administrative Agent, a Dollar Equivalent of such
currency is not readily calculable, the Administrative Agent shall promptly
notify the Lenders and the Borrower, and such currency shall no longer be an
Agreed Currency until such time as all of the Lenders agree to reinstate such
currency as an Agreed Currency and promptly, but in any event within five
Business Days of receipt of such notice from the Administrative Agent, the
Borrower shall repay all Advances in such affected currency or convert such
Advances into the Dollar Equivalent thereof or another Agreed Currency,
subject to the other terms set forth in Article II.
"Agreement" has the meaning in the introductory paragraph hereto.
"Alternate Currency" means any Agreed Currency other than Dollars.
"Applicable Base Rate Margin" means, as at any date of
determination, the rate per annum then applicable to Base Rate Advances
determined in accordance with the provisions of the Pricing Schedule hereto.
"Applicable Commitment Fee Percentage" means, as at any date of
determination, the rate per annum then applicable in the determination of the
amount payable under Section 2.08(a) hereof determined in accordance with the
provisions of the Pricing Schedule hereto.
"Applicable Eurocurrency Margin" means, as at any date of
determination, the rate per annum then applicable to Eurocurrency Rate
Advances determined in accordance with the provisions of the Pricing Schedule
hereto.
"Applicable Lending Office" means, with respect to each Lender, and
for each Type and Currency of Advance, such Lender's Domestic Lending Office
in the case of a Base Rate Advance and such Lender's Eurocurrency Lending
Office in the case of a Eurocurrency Rate Advance, or in any case such other
office of such Lender or of an Affiliate of such Lender as such Lender may
from time to time specify to the Administrative Agent and the Borrower.
"Applicable Pledge Percentage" means 100%, but 65% in the case of a
pledge of Capital Stock of a Subsidiary to the extent a 100% pledge would
cause a Deemed Dividend Problem or Financial Assistance Problem.
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
"Assignment and Acceptance" means an Assignment and Acceptance
Agreement entered into by a Lender and an Eligible Assignee, and accepted by
the Administrative Agent, in substantially the form of Exhibit C-1 hereto.
"Assumption Agreement" has the meaning specified in Section
2.23(d).
"Assuming Lender" has the meaning specified in Section 2.23(c).
"Authorized Officer" means any of the President and Chief Executive
Officer, Senior Vice President and Chief Financial Officer, Controller, Vice
President and Treasurer and any Assistant Treasurer of the Borrower, or any
person designated by any such Person in writing to the Administrative Agent
from time to time, acting singly.
"Available Amount" means, at any time, with respect to any Letter
of Credit, the maximum amount available to be drawn under such Letter of
Credit at such time (assuming compliance at such time with all conditions to
drawing), provided, that if any Letter of Credit provides for future
increases in the maximum amount available to be drawn under such Letter of
Credit, then the "Available Amount" of such Letter of Credit shall mean, at
any time, the maximum amount available to be drawn under such Letter of
Credit after taking into account all increases in the availability
thereunder.
"Base Rate" means for any day for any Advance, a fluctuating rate
of interest per annum equal to the higher of (a) the Federal Funds Rate plus
1/2 of 1% and (b) the rate of interest in effect for such day as publicly
announced by Citibank in New York, New York from time to time as Citibank's
"base rate" plus, the Applicable Base Rate Margin then in effect. Any change
in such rate announced by Citibank shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Advance" means an Advance which bears interest at the
Base Rate.
"BBA LIBOR" has the meaning specified in clause (a) of the
definition of "Eurocurrency Base Rate".
"Borrower" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means a borrowing consisting of simultaneous Advances
of the same Type made by each of the Lenders pursuant to Section 2.01(a).
"Borrowing Date" means a date on which an Advance is made
hereunder.
"Business Day" means (a) a day of the year on which commercial
banks are not required or authorized to close in New York City, (b) if the
applicable Business Day relates to any Eurocurrency Rate Advances (other than
EURIBOR Advances), a day of the year on which dealings are carried on in the
London interbank market, and, if such Business Day relates to a Borrowing of,
a payment or prepayment of principal of or interest on, or an Interest Period
for, any Advance denominated in an Agreed Currency other than Dollars (other
than Euros borrowed in connection with EURIBOR Advances), or a notice with
respect to any such Borrowing, payment, prepayment or Interest Period, also a
day of the year on which foreign exchange trading is carried out in the
London interbank market and on which banks are open in the place of payment
in the country in whose Currency such Advance is denominated, and (c) if the
applicable Business Day relates to any EURIBOR Advances and relates to a
Borrowing of, a payment or prepayment of principal of or interest on, or an
Interest Period for, any EURIBOR Advance, or a notice with respect to any
such Borrowing, payment, prepayment or Interest Period, also Target Operating
Day.
"Canadian Dollars" means the lawful currency of Canada.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a limited liability
company, membership interests, (iv) in the case of a partnership, partnership
interests (whether general or limited) and (v) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person;
provided, however, that "Capital Stock" shall not include any debt securities
convertible into equity securities prior to such conversion.
"Cash Equivalent Investments" means (i) direct obligations of, or
obligations the principal of and interest on which are unconditionally
guaranteed by, the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United
States of America), in each case maturing within one year from the date of
acquisition thereof; (ii) investments in commercial paper maturing within 270
days from the date of acquisition thereof and, at such date of acquisition,
rated A-2 or better by S&P or P-2 or better by Xxxxx'x; (iii) investments in
certificates of deposit, banker's acceptances and time deposits maturing
within one year from the date of acquisition thereof issued or guaranteed by
or placed with, and money market deposit accounts issued or offered by, any
domestic office of any Lender or of any commercial bank organized under the
laws of the United States of America or any State thereof which has a
combined capital and surplus and undivided profits of not less than
$500,000,000; (iv) repurchase obligations of any commercial bank satisfying
the requirements of clause (iii) above, having a term of not more than 30
days with respect to securities issued or unconditionally guaranteed or
insured by the United States of America (or by any agency thereof to the
extent such obligations are backed by the full faith and credit of the United
States of America); (v) securities with maturities of one year or less from
the date of acquisition issued or fully guaranteed by any state, commonwealth
or territory of the United States of America, by any political subdivision or
taxing authority of any such state, commonwealth or territory or by any
foreign government, the securities of which state, commonwealth, territory,
political subdivision, taxing authority or foreign government (as the case
may be) are rated at least A by S&P or at least A by Xxxxx'x; (vi) securities
with maturities of one year or less from the date of acquisition backed by
standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (iii) above; (vii) shares of money
market, mutual or similar funds that (a) have assets in excess of
$100,000,000, (b) invest primarily in assets of the type described in clauses
(i)-(vi) above and (c) have an investment grade rating and (viii) in the case
of any Foreign Subsidiary (in addition to the items permitted by the
foregoing clauses (i) through (vii) any of the following: (a) marketable
direct obligations issued by, or unconditionally guaranteed by, the sovereign
nation in which such Foreign Subsidiary is organized and is conducting
business or issued by any agency of such sovereign nation and backed by the
full faith and credit of such sovereign nation, in each case maturing within
one year from the date of acquisition, so long as the indebtedness of such
sovereign nation is rated at least A by S&P or A2 by Xxxxx'x or carries an
equivalent rating from a comparable foreign rating agency if available, (b)
investments of the type and maturity described in clauses (ii)-(vii) above of
foreign obligors, which investments or obligors have ratings described in
such clauses or equivalent ratings from comparable foreign rating agencies if
available, (c) time deposits with any Lender or any Affiliate of any Lender
and (d) with respect to any Foreign Subsidiary, time deposits with any
foreign bank not described in the foregoing clauses (b) or (c).
"Cash Interest Expense" of the Borrower for any period, means
Consolidated Interest Expense of the Borrower for such period minus, in each
case to the extent included in determining such Consolidated Interest Expense
for such period, the sum of the following: (a) non-cash expenses for interest
payable in kind, (b) amortization of debt discount and fees, (c) premiums
paid in respect of the repayment of the Existing Senior Subordinated Notes
and (d) non-cash expenses deducted as a result of prepayment of Indebtedness.
"Casualty Event" means with respect to any Property of any Person,
the receipt by such Person of insurance proceeds, or proceeds of a
condemnation award or other compensation in connection with any loss of or
damage to, or any condemnation or other taking of, such Property.
"CGMI" has the meaning specified in the preamble.
"Change in Law" means the occurrence, after the date of this
Agreement, of any of the following: (a) the adoption or taking effect of any
law, rule, regulation or treaty, (b) any change in any law, rule, regulation
or treaty or in the administration, interpretation or application thereof by
any Governmental Authority or (c) the making or issuance of any request,
guideline or directive (whether or not having the force of law) by any
Governmental Authority.
"Change of Control" means:
(i) any Person or two or more Persons acting in concert (other than
a Significant Shareholder or group of Significant Shareholders) shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of
the SEC under the Securities Exchange Act of 1934), directly or
indirectly, of Voting Stock of the Borrower (or other securities
convertible into such Voting Stock) representing not less than 30% of
the combined voting power of all Voting Stock of the Borrower; or
(ii) during any period of up to 12 consecutive months, commencing
on the date of this Agreement, individuals who at the beginning of such
12-month period were directors of the Borrower (together with any new
director whose election by the board of directors or whose nomination
for election by the stockholders of the Borrower was approved by
majority vote of the directors then in office who either were directors
at the beginning of such period or whose election or nomination for
election was previously so approved) shall cease for any reason (other
than solely as a result of (a) death or disability or (b) voluntary
retirement of any individual in the ordinary course and not for reasons
related to an actual or proposed change in control of the Borrower) to
constitute a majority of the board of directors of the Borrower; or
(iii) any Person or two or more Persons acting in concert (other
than a Significant Shareholder or group of Significant Shareholders)
shall have acquired the power to exercise, directly or indirectly,
effective control for any purpose over Voting Stock of the Borrower (or
other securities convertible into such securities) representing not less
than 30% of the combined voting power of all Voting Stock of the
Borrower.
"Citibank" means Citibank, N.A. and its successors.
"Collateral" means the property covered by the Collateral
Documents, the L/C Collateral Account and any other Property, now existing or
hereafter acquired , that may at any time be or become subject to a security
interest or Lien in favor of the Administrative Agent, for the benefit of the
Holders of Secured Obligations, to secure the Secured Obligations.
"Collateral Documents" means all agreements, instruments and
documents executed in connection with this Agreement that are intended to
create or evidence Liens to secure the Secured Obligations, including,
without limitation, the Pledge and Security Agreement, the Intellectual
Property Security Agreements, the Mortgages and all other security
agreements, mortgages, deeds of trust, pledges, collateral assignments and
financing statements whether heretofore, now, or hereafter executed by the
Borrower or any of its Subsidiaries and delivered to the Administrative
Agent.
"Commitment" means with respect to (a) an Initial Lender, the
amount set forth opposite the name of such Initial Lender on Schedule I
hereto under the caption "Amount of Commitment", as such amount may be
adjusted pursuant to an Assignment and Acceptance to which such Initial
Lender is a party or otherwise in accordance with the terms of this Agreement
or (b) any other Lender, the commitment amount of such Lender set forth in
the Assignment and Acceptance or Assumption Agreement pursuant to which such
Person became a Lender, and in either case, as any such amount may be
adjusted pursuant to a subsequent Assignment and Acceptance to which such
Lender is a party and otherwise in accordance with the terms of this
Agreement.
"Commitment Date" has the meaning specified in Section 2.23(b).
"Commitment Fee" has the meaning specified in Section 2.08.
"Commitment Increase" has the meaning specified in Section 2.23(a).
"Competitor" means a person whose primary business or for whom the
primary business of any of its divisions, Subsidiaries or Affiliates, or any
divisions of its Subsidiaries or Affiliates, is medical technology,
including, without limitation, wound care and therapuetic surfaces..
"Compliance Certificate" has the meaning assigned to such term in
Section 6.01(k)(iii).
"Consolidated" means such term as it applies to the Borrower and
its Subsidiaries on a consolidated basis after eliminating all intercompany
items.
"Consolidated Assets" means the total assets of the Borrower and
its Subsidiaries on a consolidated basis, determined in accordance with GAAP.
"Consolidated Operating Profit" means the operating profits of the
Borrower and its Subsidiaries on a consolidated basis, determined in
accordance with GAAP.
"Control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether
or not incorporated) under common control which, together with the Borrower
or any of its Subsidiaries, are treated as a single employer under Section
414 of the Internal Revenue Code.
"Convert", "Conversion" and "Converted" each refers to a conversion
of Advances of one Type into Advances of the other Type pursuant to Section
2.05.
"Convertible Note Hedge Transaction" means any call option, capped
call option, call spread option or similar option transaction purchased by
the Borrower to hedge its exposure with respect to the issuance and delivery
of its Capital Stock upon conversion of any convertible Indebtedness of the
Borrower issued substantially concurrently with execution and consummation of
such option transaction.
"Copyright Security Agreement" means that certain Copyright
Security Agreement, substantially in the form of Exhibit G hereto, dated as
of the Effective Date, executed by each applicable Loan Party and the
Administrative Agent for the benefit of the Holders of Secured Obligations,
as the same may be amended, restated, supplemented, or otherwise modified
from time to time.
"Credit Extension Date" means (i) the Borrowing Date of any
Advance, (ii) the date of issuance, deemed issuance, extension or amendment
of any Letter of Credit or (ii) the date of conversion or continuance of any
Advance in accordance with Section 2.05.
"Currency" means Dollars or any Alternate Currency.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States, and all other liquidation, conservatorship, bankruptcy, assignment
for the benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws of the United
States or other applicable jurisdictions from time to time in effect and
affecting the rights of creditors generally.
"Deemed Dividend Problem" means, with respect to any Foreign
Subsidiary, any portion of such Foreign Subsidiary's accumulated and
undistributed earnings and profits being deemed to be repatriated to the
Borrower or the applicable parent Domestic Subsidiary for U.S. federal income
tax purposes and the effect of such repatriation causing materially adverse
tax consequences to the Borrower or such parent Domestic Subsidiary, in each
case as determined by the Borrower in its commercially reasonable judgment
acting in good faith and in consultation with its legal and tax advisors.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be given
or time elapse or both.
"Dollar" and "$" means the lawful currency of the United States of
America.
"Dollar Amount" of any Currency at any date shall mean (i) the
amount of such Currency if such Currency is Dollars or (ii) the Dollar
Equivalent if such Currency is any Currency other than Dollars.
"Dollar Equivalent" means, with respect to any amount denominated
in an Alternate Currency, the amount of Dollars that would be required to
purchase such amount of such Alternate Currency, based upon the arithmetic
mean (rounded upwards, if necessary, to the nearest 1/100 of 1%), as
determined by the Administrative Agent, of the spot selling rate at which the
Reference Bank offers to sell such Alternate Currency for Dollars, in the
case of an amount denominated in any Alternate Currency, the London foreign
exchange market at approximately 11:00 A.M. London time, for delivery two
Business Days thereafter.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office" opposite its
name on Schedule I hereto or in the Assumption Agreement or Assignment and
Acceptance pursuant to which it became a Lender, or such other office of such
Lender as such Lender may from time to time specify to the Borrower and the
Administrative Agent.
"Domestic Subsidiary" means a Subsidiary of the Borrower that is
not a Foreign Subsidiary.
"EBITDA" means with respect to any period, the sum of, without
duplication, (a) Consolidated Net Income of the Borrower for such period
plus, in each case to the extent deducted in determining such Consolidated
Net Income for such period, the sum of the following (without duplication):
(i) Consolidated Interest Expense of the Borrower, (ii) Consolidated income
Tax expense of the Borrower and its Consolidated Subsidiaries, (iii)
Consolidated depreciation and amortization expense of the Borrower and its
Consolidated Subsidiaries, (iv) all other non-cash charges (including
impairment charges with respect to goodwill) and expenses (including option
expenses) of the Borrower and its Consolidated Subsidiaries, (v) charges,
expenses and fees incurred in connection with the Transaction in an aggregate
amount not to exceed $5,000,000, (vi) non-recurring charges, fees and
expenses incurred in connection with Acquisitions, in an aggregate amount not
to exceed $30,000,000 in any calendar year and not to exceed $60,000,000
during the term of this Agreement, (vii) non-recurring charges, fees and
expenses incurred in connection with corporate restructurings in an aggregate
amount not to exceed $20,000,000 in any calendar year and not to exceed
$60,000,000 during the term of this Agreement, and minus, to the extent
included in determining such Consolidated Net Income for such period, any
non-cash income or non-cash gains, all as determined on a consolidated basis
in accordance with GAAP, plus (b) with respect to any Acquisitions made by
the Borrower or any of its Consolidated Subsidiaries during such period, the
Acquired EBITDA of the Capital Stock or assets acquired pursuant to such
Acquisitions while under the ownership of the Prior Owner thereof for the
portion of such period prior to the consummation of such Acquisition.
"Effective Date" has the meaning specified in Section 4.01.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a natural
person) approved by the Administrative Agent and the Issuing Bank (such
approval of the Administrative Agent and the Issuing Bank not to be
unreasonably withheld or delayed); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Borrower or any of the
Borrower's Affiliates or Subsidiaries or, so long as an Event of Default
under Section 7.01(e) has not occurred and be continuing or the Obligations
have not been accelerated pursuant to Section 7.02(a), any Competitor.
"Eligible Currency" means, at any time, any currency other than
Dollars, provided that, at such time, (i) such currency is dealt with in the
London interbank deposit market, or, in the case of Euros borrowed in
connection with EURIBOR Advances, the European interbank deposit market, (ii)
such currency is freely transferable and convertible into Dollars in the
London foreign exchange market or, in the case of Euros, the European
interbank deposit market, and (iii) no central bank or other governmental
authorization in the country of issue of such currency (including, in the
case of Euros borrowed in connection with EURIBOR Advances, any authorization
by the European Central Bank) is required to permit use of such currency by
any Lender for making any Advance and/or to permit the Borrower to borrow and
repay the principal thereof and to pay the interest thereon (unless such
authorization has been obtained and is in full force and effect).
"EMU" means economic and monetary union as contemplated in the
Treaty on European Union.
"EMU Legislation" means legislative measures of the European
Council for the introduction of, changeover to or operation of a single or
unified European currency (whether known as the Euro or otherwise), being in
part the implementation of the third stage of EMU.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability or
potential liability, investigation, proceeding, consent order or consent
agreement relating in any way to any Environmental Law, Environmental Permit
or Hazardous Materials or arising from alleged injury or threat of injury to
health, safety or the environment, including, without limitation, (a) by any
governmental or regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment, decree or
judicial or agency interpretation, policy or guidance relating to pollution
or protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities) directly or indirectly
resulting from or based upon (a) violation of any Environmental Law, (b) the
generation, use, handling, transportation, storage, treatment or disposal of
any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the
release or threatened release of any Hazardous Materials into the environment
or (e) any contract, agreement or other consensual arrangement pursuant to
which liability is assumed or imposed with respect to any of the foregoing.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of the Internal Revenue
Code.
"ERISA Event" means (a) (i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan unless
the 30-day notice requirement with respect to such event has been waived by
the PBGC, or (ii) the requirements of Section (1) of Section 4043(b) of ERISA
(without regard to Section (2) of such Section) are met with respect to a
contributing sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan,
and an event described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to occur with respect to such
Plan within the following 30 days; (b) the application for a minimum funding
waiver with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to
Section 4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Borrower or any ERISA Affiliate in the
circumstances described in Section 4062(e) of ERISA; (e) the withdrawal by
the Borrower or any ERISA Affiliate from a Multiple Employer Plan during a
plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for the imposition of a lien
under Section 302(f) of ERISA shall have been met with respect to any Plan;
(g) the adoption of an amendment to a Plan requiring the provision of
security to such Plan pursuant to Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event or condition described
in Section 4042 of ERISA that constitutes grounds for the termination of, or
the appointment of a trustee to administer, a Plan.
"EURIBOR Advance" means any Eurocurrency Rate Advance which is
denominated in Euros and bears interest at a rate determined in accordance
with clause (b) of the definition of Eurocurrency Base Rate in this
Section 1.01.
"Euro" means the single currency of Participating Member States of
the European Union.
"Eurocurrency Base Rate" means
(a) for any Interest Period for each LIBOR Advance in any Currency
(other than Euros) comprising part of the same Borrowing, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of one
percent) appearing on the Screen for such Currency as the British
Bankers Association LIBOR Rate ("BBA LIBOR") for deposits in such
Currency at approximately 11:00 A.M. London time (or as soon thereafter
as practicable) two Business Days prior to the first day of the Interest
Period for such Advance with a term equivalent to such Interest Period;
provided that if such rate does not appear on such Screen (or, if such
Screen shall cease to be publicly available or if the information
contained on such Screen, in the Administrative Agent's reasonable
judgment, shall cease accurately to reflect such BBA LIBOR for deposits
in such Currency, as reported by any publicly available source of
similar market data selected by the Administrative Agent that, in the
Administrative Agent's reasonable judgment, accurately reflects such BBA
LIBOR for deposits in such Currency), the "Eurocurrency Base Rate" for
such Interest Period for such LIBOR Advance in such Currency shall be
the arithmetic average (rounded to the nearest 1/100 of one percent) of
the rates per annum at which deposits in such Currency are offered by
the principal office of the Reference Bank in London, England to prime
banks in the London interbank market at approximately 11:00 A.M. (London
time) two Business Days before the first day of the Interest Period for
such Advance in an amount substantially equal to such Reference Bank's
LIBOR Advance comprising part of such Borrowing to be outstanding during
such Interest Period; and
(b) for any Interest Period for each EURIBOR Advance in Euros
comprising part of the same Borrowing, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of one percent) appearing on
the Screen for Euros as the BBA LIBOR for deposits in Euros within the
member states of the European Union which are Participating Member
States at approximately 11:00 A.M. London time (or as soon thereafter as
practicable) two Business Days prior to the first day of the Interest
Period for such EURIBOR Advance with a term equivalent to such Interest
Period; provided that if such rate does not appear on such Screen (or,
if such Screen shall cease to be publicly available or if the
information contained on such Screen, in the Administrative Agent's
reasonable judgment, shall cease accurately to reflect such BBA LIBOR
for deposits in Euros within the member states of the European Union
which are Participating Member States, as reported by any publicly
available source of similar market data selected by the Administrative
Agent that, in the Administrative Agent's reasonable judgment,
accurately reflects such BBA LIBOR for deposits in Euros within the
member states of the European Union which are Participating Member
States), the "Eurocurrency Base Rate" for such Interest Period for such
EURIBOR Advance shall be the arithmetic average (rounded to the
nearest 1/100 of one percent) of the rates per annum at which deposits
in Euros are offered by the principal office of the Reference Bank in
(i) London, England to prime banks in the London interbank market at
approximately 10:00 A.M. (London time), two Business Days before the
first day of the Interest Period for such EURIBOR Advance in an amount
substantially equal to such Reference Bank's EURIBOR Advance comprising
part of such Borrowing to be outstanding during such Interest Period.
The Eurocurrency Base Rate for any Interest Period for each
Eurocurrency Rate Advance comprising part of the same Borrowing shall be
determined by the Administrative Agent on the basis of the applicable Screen
or the applicable rates furnished to and received by the Administrative Agent
from the Reference Bank, as the case may be, two Business Days before the
first day of such Interest Period, subject, however, to the provisions of
Section 2.04.
"Eurocurrency Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurocurrency Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement or
Assignment and Acceptance pursuant to which it became a Lender (or, if no
such office is specified, its Domestic Lending Office), or such other office
of such Lender as such Lender may from time to time specify to the Borrower
and the Administrative Agent.
"Eurocurrency Liabilities" has the meaning assigned to that term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurocurrency Rate" means, with respect to a Eurocurrency Rate
Advance for the relevant Interest Period, the Eurocurrency Base Rate
applicable to such Interest Period plus, the Applicable Eurocurrency Margin
then in effect.
"Eurocurrency Rate Advance" means an Advance which bears interest
at the Eurocurrency Rate.
"Eurocurrency Rate Reserve Percentage" of any Lender for any
Interest Period for any Eurocurrency Rate Advance means the reserve
percentage applicable during such Interest Period (or if more than one such
percentage shall be so applicable, the daily average of such percentages for
those days in such Interest Period during which any such percentage shall be
so applicable) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for such
Lender with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 7.01.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender or any other recipient of any payment to be made by or on account
of any obligation of the Borrower hereunder, (a) taxes imposed on or measured
by its overall net income (however denominated) or its overall gross
receipts, and franchise taxes imposed on it (in lieu of net income taxes), by
the jurisdiction (or any political subdivision thereof) under the laws of
which such recipient is organized or in which its principal office is located
or, in the case of any Lender, in which its Applicable Lending Office is
located, and (b) any branch profits taxes imposed by the United States of
America or any similar tax imposed by any other jurisdiction in which the
applicable Lender is located.
"Existing Credit Agreement" means the Credit Agreement, dated as of
August 11, 2003, as heretofore amended or supplemented among the Borrower,
the lenders party thereto and Xxxxxx Xxxxxxx Senior Funding, Inc., as
Administrative Agent.
"Existing Letters of Credit" means each "Letter of Credit" issued
pursuant to the terms of, and as defined in, the Existing Credit Agreement
and outstanding on the Effective Date.
"Existing Senior Subordinated Note Indenture" means the Indenture,
dated as of August 11, 2003, between the Borrower and U.S. Bank National
Association, as trustee, for the issuance of the Existing Senior Subordinated
Notes.
"Existing Senior Subordinated Notes" means the 7-3/8% senior
subordinated unsecured notes issued by the Borrower pursuant to the Existing
Senior Subordinated Note Indenture and any other notes issued in exchange
therefor and in accordance with any registration rights document entered into
in connection with the issuance of the Existing Senior Subordinated Notes.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum equal for each day during such period to the weighted average
of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for
such day (or, if such day is not a Business Day, for the next preceding
Business Day) by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day that is a Business Day, the average of the
quotations for such day on such transactions received by the Administrative
Agent from three Federal funds brokers of recognized standing selected by it.
"Fee Letter" means that certain Fee Letter between Borrower and
CGMI, dated June 7, 2007.
"Fees" means any and all fees payable to Administrative Agent, CGMI
or any Lender pursuant to this Agreement or any of the other Loan Documents.
"Financial Assistance Problem" means, with respect to any Foreign
Subsidiary, the inability of such Foreign Subsidiary to permit its Capital
Stock to be pledged pursuant to a pledge agreement on account of legal or
financial limitations imposed by the jurisdiction of organization of such
Foreign Subsidiary or other relevant jurisdictions having authority over such
Foreign Subsidiary, in each case as determined by the Borrower in its
commercially reasonable judgment acting in good faith and in consultation
with its legal and tax advisors.
"Financial Officer" means as to any Person, the financial officer
of such Person, or such other officer or financial manager of such Person as
shall be designated by the Borrower and satisfactory to the Administrative
Agent.
"Financing Lease" means any lease of property, real or personal,
the obligations of the lessee in respect of which are required in accordance
with GAAP to be capitalized on a balance sheet of the lessee.
"Foreign Currency Protection Agreements" means as to any Person,
all foreign exchange contracts, currency swap agreements or other similar
agreements or arrangements designed to protect such Person against
fluctuations in currency values.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is resident for tax
purposes. For purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"Foreign Plan" means an employee pension benefit plan (as defined
in Section 3(2) of ERISA) which is (i) maintained or contributed to for the
benefit of employees of the Borrower, any of its Subsidiaries or any member
of the Controlled Group, (ii) is not covered by ERISA pursuant to
Section 4(b)(4) thereof and (iii) under applicable local law, is required to
be funded through a trust or other funding vehicle.
"Foreign Subsidiary" means (i) a Subsidiary of the Borrower
organized under the laws of a jurisdiction located outside the United States
of America or (ii) a Subsidiary of any Person described in the foregoing
clause (i).
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"GAAP" has the meaning specified in Section 1.06.
"Governmental Authority" means the government of the United States
of America or any other nation, or of any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or
functions of or pertaining to government (including any supra-national bodies
such as the European Union or the European Central Bank).
"Guarantee Obligations" has the meaning specified in the definition
of "Indebtedness" hereunder.
"Guarantees" means, collectively, the Subsidiary Guaranty Agreement
and any other guaranty executed by any Subsidiary Guarantor in favor of the
Administrative Agent, on behalf of itself and Lenders, in respect of the
Obligations, and "Guaranty" means each such agreement, individually.
"Hazardous Materials" means (a) petroleum and petroleum products,
byproducts or breakdown products, radioactive materials, asbestos-containing
materials, polychlorinated biphenyls and radon gas and (b) any other
chemicals, materials or substances designated, classified or regulated as
hazardous or toxic or as a pollutant or contaminant under any Environmental
Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar agreements.
"Hedging Arrangements" means any and all Hedge Agreements,
including all Foreign Currency Protection Agreements, devices or arrangements
designed to protect at least one of the parties thereto from the fluctuations
of interest rates, commodity prices, exchange rates or forward rates
applicable to such party's assets, liabilities or exchange transactions,
including, but not limited to, dollar-denominated or cross-currency interest
rate exchange agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or interest rate
options, puts and warrants or any similar derivative transactions.
"Hedging Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all renewals, extensions
and modifications thereof and substitutions therefor), under (i) any Hedging
Arrangements and (ii) any and all cancellations, buybacks, reversals,
terminations or assignments relating to any Hedging Arrangements.
"Holders of Secured Obligations" means (i) the holders of the
Secured Obligations from time to time, including, without limitation, the
Administrative Agent, the Lenders, the Issuing Bank, each of their respective
Affiliates and any Indemnitee and including each Lender (or Affiliate
thereof) in respect of all Hedging Obligations of the Loan Parties owing to
such Lender (or Affiliate) and (ii) each such holder's respective successors,
transferees and assigns.
"Increase Date" has the meaning specified in Section 2.23(a).
"Increasing Lender" has the meaning specified in Section 2.23(b).
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
trade payables and other accrued liabilities incurred in the ordinary course
of such Person's business) that (i) are not overdue by more than 90 days or
(ii) are being contested in good faith by such Person), (c) all obligations
of such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all obligations of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all obligations of such Person
under Financing Leases, (f) all obligations, contingent or otherwise, of such
Person in respect of acceptances, letters of credit or similar extensions of
credit, (g) all obligations of such Person in respect of Hedging Arrangements
(the amount of any Indebtedness pursuant to this clause (g) shall be the net
amounts (including by offset of amounts payable thereunder), including any
net termination payments, required to be paid to a counterparty rather than
any notional amount with regard to which payments may be calculated, (h) all
Indebtedness of others referred to in clauses (a) through (g) above or
clause (i) below and other payment obligations (collectively, "Guarantee
Obligations") guaranteed directly or indirectly in any manner by such Person,
or in effect guaranteed directly or indirectly by such Person through an
agreement (1) to pay or purchase such Guarantee Obligations or to advance or
supply funds for the payment or purchase of such Guarantee Obligations,
(2) to purchase, sell or lease (as lessee or lessor) property, or to purchase
or sell services, primarily for the purpose of enabling the debtor to make
payment of such Guarantee Obligations or to assure the holder of such
Guarantee Obligations against loss, (3) to supply funds to or in any other
manner invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such services
are rendered) or (4) otherwise to assure a creditor against loss, and (i) all
Indebtedness referred to in clauses (a) through (h) above (including
Guarantee Obligations) which is non-recourse and secured by (or for which the
holder of such non-recourse Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property (including, without
limitation, accounts and contract rights) owned by such Person, even though
such Person has not assumed or become liable for the payment of such
non-recourse Indebtedness (the amount of any such non-recourse Indebtedness
pursuant to this clause (i) shall be equal to the lesser of (A) the amount of
such Indebtedness and (B) the fair market value of such property).
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnitee" has the meaning specified in Section 9.04(b).
"Information Memorandum" means the information memorandum dated
June 29, 2007 used by the Administrative Agent in connection with the
syndication of the Commitments.
"Initial Guarantors" means KCI USA, Inc., a Delaware corporation,
KCI Licensing, Inc. a Delaware corporation, KCI Holding Company, Inc., a
Delaware corporation, and KCI International, Inc., a Delaware corporation.
"Initial Lenders" has the meaning set forth in the introductory
paragraph of this Agreement.
"Intellectual Property Security Agreements" means the intellectual
property security agreements including, but not limited to, the Trademark
Security Agreement, the Copyright Security Agreement and the Patent Security
Agreement as the Borrower or any Subsidiary Guarantor may from time to time
make in favor of the Administrative Agent for the benefit of the Holders of
Secured Obligations, in each case as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"Interest Coverage Ratio" means, as of the last day of any fiscal
quarter, the ratio of (i) EBITDA for the four consecutive fiscal quarters
then ended on such date to (ii) Consolidated Cash Interest Expense of the
Borrower for such four fiscal-quarter period.
"Interest Expense" of the Borrower for any period, means the sum of
(a) the amount of interest expense, both expensed and capitalized, of the
Borrower and its Consolidated Subsidiaries determined on a consolidated basis
in accordance with GAAP for such period, plus, without duplication, that
portion of payments under Financing Leases of the Borrower and its
Consolidated Subsidiaries attributable to interest expense of the Borrower
and its Consolidated Subsidiaries for such period in accordance with GAAP and
(b) the Acquired Interest Expense of the Borrower and its Subsidiaries for
such period.
"Interest Period" means, with respect to each Eurocurrency Rate
Advance comprising part of the same Borrowing, the period commencing on the
date of such Eurocurrency Rate Advance or the date of the Conversion of any
Base Rate Advance into such Eurocurrency Rate Advance and ending on the last
day of the period selected by the Borrower pursuant to the provisions below
and, thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six months,
as the Borrower may, upon notice received by the Administrative Agent not
later than 1:00 P.M. (New York City time) on the third Business Day prior to
the first day of such Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest Period that ends after
the Termination Date;
(ii) Interest Periods commencing on the same date for Eurocurrency
Rate Advances comprising part of the same Borrowing shall be of the same
duration;
(iii) whenever the last day of any Interest Period would otherwise
occur on a day other than a Business Day, the last day of such Interest
Period shall be extended to occur on the next succeeding Business Day,
provided, however, that, if such extension would cause the last day of such
Interest Period to occur in the next following calendar month, the last day
of such Interest Period shall occur on the next preceding Business Day; and
(iv) whenever the first day of any Interest Period occurs on a day
of an initial calendar month for which there is no numerically corresponding
day in the calendar month that succeeds such initial calendar month by the
number of months equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Issuing Bank" means Xxxxx Fargo Bank, as an issuer of any Letter
of Credit or, at the option of Xxxxx Fargo Bank, any Affiliate or Subsidiary
thereof, or such other Lender reasonably acceptable to the Administrative
Agent as shall, at the request of the Borrower, have assumed the obligations
of the Issuing Bank with respect to any or all Letters of Credit hereunder.
"Irish Restructuring" has the meaning specified in Section 6.04.
"KCII" means KCI International, Inc., a Delaware corporation.
"KCI International" means KCI International Holding Company, a
Delaware corporation.
"L/C Cash Collateral Account" has the meaning specified in Section
7.02(b).
"L/C Cash Collateral Account Collateral" has the meaning specified
in Section 7.02(b).
"L/C Cash Collateral Account Investments" has the meaning specified
in Section 7.02(c).
"L/C Cash Collateral Account Obligations" has the meaning specified
in Section 7.02(e)(i).
"L/C Related Documents" has the meaning specified in Section
3.04(c)(i).
"Lead Arranger" means CGMI as lead arranger and book runner for the
loan transaction evidenced by this Agreement.
"Lenders" means the Initial Lenders listed on the signature pages
hereto, each Assuming Lender that shall become a party hereto pursuant to
Section 2.23 and each Person that shall become a party hereto pursuant to
Section 9.07 and shall include the Issuing Bank.
"Letter of Credit" has the meaning specified in Section 3.01(a).
"Letter of Credit Agreement" has the meaning specified in Section
3.04(a)(i).
"Letter of Credit Facility" means an aggregate amount not to exceed
$60,000,000 at any time outstanding.
"Letter of Credit Loan" means a payment by the Issuing Bank of a
draft drawn under any Letter of Credit pursuant to Section 3.04 or, without
duplication, a payment by a Lender in respect thereof pursuant to Section
3.04.
"Letter of Credit Outstandings" means, at any time, the aggregate
Available Amount of all Letters of Credit (which shall be, in the case of a
Letter of Credit denominated in Euros, Sterling, Canadian Dollars, Yen or
other Alternate Currency, the Dollar Equivalent thereof as at such time) plus
the aggregate outstanding principal amount of all Letter of Credit Loans.
"Leverage Ratio" means, as at the last day of any fiscal quarter of
the Borrower ending on or after the date hereof, the ratio of (a) Total
Funded Debt as of such day to (b) EBITDA for the period of four fiscal
quarters ending on such day.
"LIBOR Advance" means any Eurocurrency Rate Advance which is
denominated in any Currency and bears interest at a rate determined in
accordance with clause (a) of the definition of Eurocurrency Base Rate in
this Section 1.01.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property.
"Loan Documents" means this Agreement, the Fee Letter, any Notes
executed pursuant to Section 2.22(b), Section 9.07(g) or (h), the Guarantees,
the Collateral Documents, any Assignment and Acceptance or Assumption
Agreement, the Wake Forest Consent and all other documents, instruments,
notes and agreements executed in connection therewith or pursuant thereto, as
the same may be amended, restated or otherwise modified and in effect from
time to time.
"Loan Parties" means, collectively, the Borrower and the Subsidiary
Guarantors.
"Local Time" means, with respect to any Advance denominated, or any
payment to be made, in Dollars, New York City time, and with respect to any
Advance denominated, or any payment to be made, in an Alternate Currency, the
local time in the Principal Financial Center for such Currency.
"Managing Person" means, with respect to any Person that is (a) a
corporation, its board of directors, (b) a limited liability company, its
board of control or managing member or members, (c) a limited partnership,
its general partner, (d) a general partnership or a limited liability
partnership, its managing partner or executive committee, or (e) any other
Person, the managing body thereof or other Person analogous to the foregoing.
"Margin Stock" shall have the meaning ascribed to such term in
Regulation U.
"Material Adverse Change" means any material adverse change in the
business, financial condition or operations of the Borrower or the Borrower
and its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on (a)
the business, financial condition or operations of the Borrower or the
Borrower and its Subsidiaries taken as a whole, (b) the rights and remedies
of the Administrative Agent or any Lender under this Agreement or any Loan
Document or (c) the ability of any Loan Party to perform its obligations
under this Agreement or any Loan Document.
"Material Domestic Subsidiary" means a Domestic Subsidiary that is
a Material Subsidiary.
"Material Subsidiary" means, at any time, a Domestic Subsidiary of
the Borrower (excluding any Domestic Subsidiary if and only if such Domestic
Subsidiary is a holding company and (i) the only material assets of such
holding company is the Capital Stock of one or more Foreign Subsidiaries and
(ii) the execution by such Domestic Subsidiary of a supplement to the
Subsidiary Guaranty Agreement pursuant to Section 6.1(m) would give rise to a
Deemed Dividend Problem or a Financial Assistance Problem) (a) the total
assets of which for the most recently ended fiscal quarter (determined on a
Consolidated basis for such Subsidiary and its Subsidiaries) are greater than
five percent (5.0%) of the Borrower's Consolidated Assets and (b) the total
operating profits of which for the most recently ended fiscal quarter
(determined on a Consolidated basis for such Subsidiary and its Subsidiaries)
were greater than five percent (5.0%) of the Borrower's Consolidated
Operating Profit for the most recently ended fiscal quarter; provided,
however, that such Domestic Subsidiary shall be a Material Subsidiary only to
the extent that and for so long as the requirements set forth in clauses (a)
and (b) above shall exist.
"Moody's" means Xxxxx'x Investors Service, Inc., together with its
successors and assigns.
"Xxxxx'x Rating" means, at any time, the rating issued by Moody's
and then in effect with respect to the Borrower's senior secured credit
facility as evidenced this Agreement.
"Mortgage" means each mortgage, deed of trust or other similar
document to be executed and delivered by the appropriate Loan Party, in form
and substance reasonably acceptable to the Administrative Agent and the
Lenders in order (a) to provide that such Loan Party is the mortgagor or
grantor, (b) to comply with and/or provide for specific laws of the
jurisdictions in which the property to be encumbered is located, and (c) to
assure that the Administrative Agent for the benefit of the Holders of the
Secured Obligations has a perfected Lien on any mortgaged Property.
"Mortgage Instruments" means, with respect to any mortgaged
Property, all title reports, title insurance, opinions of counsel, surveys,
appraisals and environmental reports relating thereto, all in form and
substance reasonably acceptable to the Administrative Agent.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any of
the preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" means a single employer plan, as defined
in Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so maintained and in respect of
which the Borrower or any ERISA Affiliate could have liability under Section
4064 or 4069 of ERISA in the event such plan has been or were to be
terminated.
"Net Income" of the Borrower for any period, means the net income
of the Borrower and its Consolidated Subsidiaries, determined on a
consolidated basis in accordance with GAAP for such period.
"Note" means a promissory note of the Borrower payable to the order
of any Lender, delivered pursuant to a request made under Section 2.22(b) in
substantially the form of Exhibit A hereto, evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from the Advances made
by such Lender.
"Notice of Borrowing" has the meaning specified in Section 2.02.
"Notice of Issuance" has the meaning specified in Section 3.04(a).
"Obligations" means all Advances to, and debts, liabilities,
obligations, covenants and duties of, the Borrower or any other Loan Party
arising under any Loan Document or otherwise with respect to any Advance,
whether direct or indirect (including those acquired by assumption), absolute
or contingent, due or to become due, now existing or hereafter arising and
including interest and fees (including attorneys' fees and disbursements)
that accrue after the commencement by or against any Loan Party or any
Affiliate thereof of any proceeding under any Debtor Relief Laws naming such
Person as the debtor in such proceeding, regardless of whether such interest
and fees are allowed claims in such proceeding.
"Organizational Documents" means as to any person which is (i) a
corporation, the certificate or articles of incorporation and by-laws of such
Person, (ii) a limited liability company, the article of organization,
certificate of formation or similar documents of such Person and the limited
liability company agreement or similar agreement of such Person, (iii) a
partnership, the partnership agreement or similar agreement of such Person,
and, in the case of a limited partnership, the certificate of limited
partnership, or (iv) any other form of entity or organization, the
organizational documents analogous to the foregoing.
"Other Taxes" means all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or under any other Loan Document or
from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document.
"Outstanding Advances" means, at any time, the then aggregate
outstanding principal amount of all Advances (which shall be, in the case of
Advances denominated in a Currency other than Dollars, the Dollar Equivalent
thereof at such time).
"Participant" has the meaning assigned to such term in clause (e)
of Section 9.07.
"Participating Member State" means each state so described in any
EMU Legislation.
"Patent Security Agreement" means that certain Patent Security
Agreement, substantially in the form of Exhibit E hereto, dated as of the
Effective Date, executed by each applicable Loan Party and the Administrative
Agent for the benefit of the Holders of Secured Obligations, as the same may
be amended, restated, supplemented, or otherwise modified from time to time.
"Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act
of 2001, Pub. L. 107-56, signed into law October 26, 2001.
"Payment Date" means the last Business Day of each March, June,
September and December and the Termination Date, commencing on the first such
date to occur after the Effective Date.
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Indebtedness" means (a) Indebtedness outstanding under
this Agreement and the other Loan Documents, (b) unsecured Indebtedness with
a maturity date not earlier than the Termination Date, (c) secured
Indebtedness in an amount not to exceed $60,000,000 outstanding at any time
with a maturity date not earlier than the Termination Date, (d) Indebtedness
arising from the honoring by a bank of a check or similar instrument drawn
against insufficient funds in the ordinary course, so long as such
Indebtedness is extinguished within five Business Days of its incurrence, (e)
Indebtedness represented by workers' compensation claims, self-insurance
obligations, performance bonds, warranty or contractual service obligations
or surety or appeal bonds, in each case to the extent incurred in the
ordinary course of business in accordance with customary industry practices
in amounts customary in the Borrower's industry and in the case of
Indebtedness represented by self-insurance obligations, (f) Indebtedness
represented by financed insurance premiums, (g) Indebtedness arising from
Hedging Agreements, (h) Indebtedness of Foreign Subsidiaries incurred to
finance the working capital requirements of one or more Foreign Subsidiaries
in an aggregate principal amount not to exceed $75,000,000, (i) Indebtedness
arising from intercompany loans and advances made by any Loan Party to any
Subsidiary of the Borrower that is not a Guarantor in an aggregate principal
amount not to exceed $75,000,000, (j) Indebtedness arising from intercompany
loans and advances (i) made by any Subsidiary of the Borrower that is not a
Guarantor to a Loan Party, (ii) made by any Loan Party to another Loan Party
or (iii) made by any Subsidiary that is not a Loan Party to any other
Subsidiary that is not a Loan Party, including, without limitation, made by
any Foreign Subsidiary to any other Foreign Subsidiary and (k) endorsements
of instruments for deposit or collection in the ordinary course of business.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced: (a) Liens for taxes, assessments and governmental charges or
levies not yet delinquent or which are being contested in good faith by
appropriate proceedings; provided that adequate reserves with respect thereto
are maintained on the books of the Borrower or its Subsidiaries, as the case
may be, in conformity with GAAP (or, in the case of Foreign Subsidiaries,
generally accepted accounting principles in effect from time to time in their
respective jurisdictions of organization); (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens and
other similar Liens arising in the ordinary course of business securing
obligations that are not overdue for a period of more than 60 days; (c)
pledges or deposits to secure obligations under workers' compensation laws or
similar legislation or to secure public or statutory obligations; (d) Liens
to secure Indebtedness represented by financed insurance premiums, provided
that such Liens do not extend to any property or assets other than the
corresponding insurance policies being financed; (e) easements, rights of way
and other encumbrances on title to real property that do not materially
adversely affect the use of such property for its present purposes; and (f)
Liens created in connection with the L/C Cash Collateral Account.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledge and Security Agreement" means that certain Pledge and
Security Agreement, substantially in the form of Exhibit D hereto, dated as
of the Effective Date, executed by the Borrower, the Subsidiary Guarantors
and the Administrative Agent for the benefit of the Holders of Secured
Obligations, as the same may be amended, restated, supplemented, or otherwise
modified from time to time.
"Pledged Debt" had the meaning assigned thereto in the Pledge and
Security Agreement.
"Pledged Equity" has the meaning assigned thereto in the Pledge and
Security Agreement.
"Pricing Schedule" means the Pricing Schedule with respect to the
Applicable Base Rate Margin, Applicable Eurocurrency Margin and the
Applicable Commitment Fee Percentage attached hereto as Schedule IV.
"Principal Financial Center" means, in the case of any Currency,
the principal financial center of the country of issue of such Currency, as
determined by the Administrative Agent.
"Prior Owner" with respect to any Acquisition by the Borrower or
any of its Subsidiaries, the Person or Persons which was or were the owner(s)
of the Capital Stock or assets acquired by the Borrower or such Subsidiary
pursuant to such Acquisition.
"Pro Rata Share" means, with respect to any Lender, (a) a
percentage equal to a fraction the numerator of which is such Lender's
Commitment and the denominator of which is the Aggregate Commitment of all
Lenders (or if the Commitments have terminated or expired, the Pro Rata
Shares of any Lender shall be determined based upon a percentage equal to a
fraction the numerator of which is such Lender's share of the aggregate
outstanding principal balance of the Advances held by such Lender and the
denominator of which is the outstanding principal balance of the Advances
held by all Lenders), after giving effect to any assignments.
"Projections" the Borrower's forecasted consolidated and
consolidating: (a) balance sheets; (b) statements of operations; (c) cash
flow statements; and (d) capitalization statements, all prepared on a basis
consistent with the Borrower's historical financial statements and based upon
good faith estimates and assumptions by the Borrower believed to be
reasonable at the time made, together with appropriate supporting details and
a statement of underlying assumptions.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets
owned, leased or operated by such Person.
"Rate Option" means the Eurocurrency Rate or the Base Rate, as
applicable.
"Reference Bank" means Citibank or any successor Administrative
Agent appointed pursuant to Section 8.07.
"Refinancing" means the repayment of all outstanding loans and
other obligations (and the termination of all commitments) under the Existing
Credit Agreement.
"Register" has the meaning specified in Section 9.07(e).
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or
other regulation or official interpretation of the Board of Governors of the
Federal Reserve System relating to the extension of credit by banks,
non-banks and non-broker lenders for the purpose of purchasing or carrying
Margin Stock applicable to member banks of the Federal Reserve System.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and
advisors of such Person and of such Person's Affiliates.
"Reportable Event" means a reportable event as defined in Section
4043 of ERISA and the regulations issued under such section, with respect to
a Plan, excluding, however, such events as to which the PBGC by regulation
waived the requirement of Section 4043(a) of ERISA that it be notified within
30 days of the occurrence of such event.
"Required Lenders" means at any time Lenders having at least 51% of
the Aggregate Commitments or, if the Commitments shall have terminated,
Lenders holding at least 51% of the sum of (a) the aggregate unpaid principal
amount of the Advances plus (b) the aggregate Available Amount of all Letters
of Credit (computed, in the case of Advances and Letters of Credit
denominated in Alternate Currencies, as the Dollar Equivalent thereof, as
determined by the Administrative Agent); provided, however, that if (x) the
Aggregate Commitments have not been terminated pursuant to the terms of this
Agreement and (y) any Lender shall have failed to fund its Pro Rata Share of
any Advance such Lender is obligated to fund under the terms of this
Agreement and such failure has not been cured, then, for so long as such
failure continues, "Required Lenders" means Lenders (excluding all Lenders
whose failure to fund their respective Pro Rata Shares of an Advance or
Letter of Credit has not been so cured) whose Pro Rata Shares represent at
least fifty-one percent (51%) of the aggregate Pro Rata Shares of such
Lenders.
"S&P" means Standard and Poor's Ratings Group, a division of The
XxXxxx-Xxxx Companies, together with its successors and assigns with respect
to this Agreement.
"S&P Rating" means, at any time, the rating issued by S&P and then
in effect with respect to the Borrower's senior secured credit facility as
evidenced by this Agreement.
"Screen" means:
(i) in relation to LIBOR, Reuters Screen LIBOR01, Page: BBA LIBOR
(or any successor or substitute page, or any successor to or substitute
for such service, providing rate quotations comparable to those
currently provided on such page of such service, as determined by the
Administrative Agent from time to time for the purposes of providing
quotations of interest rates applicable to the relevant Currency in the
London interbank market); and
(ii) in relation to EURIBOR, Reuters Screen LIBOR01, Page: BBA
LIBOR (or any successor or substitute page, or any successor to or
substitute for such service, providing rate quotations comparable to
those currently provided on such page of such service, as determined by
the Administrative Agent from time to time for the purposes of providing
quotations of interest rates applicable to Euros within the member
states of the European Union which are Participating Member States).
"SEC" means the Securities and Exchange Commission or any
Governmental Authority succeeding to the functions thereof.
"Secured Obligations" means (i) all Obligations and (ii) all
Hedging Obligations of the Borrower or any Subsidiary Guarantor owing to any
Lender or any Affiliate of any Lender.
"Significant Shareholder" means any Person that:
(i) on the date hereof possesses, directly or indirectly, and such
possession has been publicly disclosed, the power to vote 5% or more of
the outstanding shares of common stock of the Borrower,
(ii) is or hereafter becomes a spouse of or any other relative (by
blood, marriage or adoption) of a Person described in clause (i),
(iii) is or becomes a transferee of the interests of any of the
foregoing Person or Persons by descent or by trust or similar
arrangement intended as a method of descent, or
(iv) is (x) an employee benefit or stock ownership plan of the
Borrower or (y) a grantor trust established for the funding, directly or
indirectly, of the Borrower's employee benefit plans and programs.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of the
Borrower or any ERISA Affiliate and no Person other than the Borrower and the
ERISA Affiliates or (b) was so maintained and in respect of which the
Borrower or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Solvent" shall mean, with respect to any person on a particular
date, that on such date (i) the fair value of the property of such person is
greater than the total amount of liabilities, including, without limitation,
contingent liabilities, of such person, (ii) the present fair salable value
of the assets of such person is not less than the amount that will be
required to pay the probably liability of such person on its debts as they
become absolute and matured, (iii) such person does not intend to, and does
not believe that it will, incur debts or liabilities beyond such person's
ability to pay as such debts and liabilities mature and (iv) such person is
not engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such person's property would constitute
an unreasonably small capital. For purposes of the definition of "Solvent"
above, the amount of contingent liabilities at any time shall be computed as
the amount that, in the light of all the facts and circumstances existing as
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"Standby Letter of Credit" means any Letter of Credit that is not a
Trade Letter of Credit.
"Sterling" means the lawful currency of the United Kingdom.
"Subordinated Debt" means, (a) any unsecured Indebtedness of the
Borrower with terms and conditions at least as favorable to the Lenders as
those applicable to the Existing Senior Subordinated Notes and (b) any other
unsecured Indebtedness of the Borrower, no part of the principal of which is
required to be paid (whether by way of mandatory sinking fund, mandatory
redemption, mandatory prepayment or otherwise) prior to the date which is six
(6) months after the Termination Date; the payment of the principal of and
interest on which and other obligations of the Borrower in respect thereof
are subordinated to the prior payment in full of the Secured Obligations on
terms and conditions at least as favorable to the Lenders as those applicable
to the Existing Senior Subordinated Notes.
"Subordinated Debt Documentation" means the agreements, indentures
and other documentation pursuant to which any Subordinated Debt is issued.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or in
which) more than 50% of (a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is at the time directly
or indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Subsidiary Guarantors" means (i) the Initial Guarantors and (ii)
all additional Material Domestic Subsidiaries of the Borrower which become
Subsidiary Guarantors in accordance with Section 6.01(m)(ii).
"Subsidiary Guaranty Agreement" means that certain Guaranty,
substantially in the form of Exhibit H hereto, dated as of the Effective
Date, executed by the Initial Guarantors and certain other Subsidiary
Guarantors in favor of the Administrative Agent, for the ratable benefit of
itself and the other Holders of the Secured Obligations from time to time,
unconditionally guaranteeing all of the Secured Obligations, as the same may
be amended, restated, supplemented or otherwise modified from time to time
(including to add additional Subsidiary Guarantors).
"Target Operating Day" means any day that is not (i) a Saturday or
Sunday, (ii) Christmas Day or New Year's Day or (iii) any other day on which
the Trans-European Automated Real-time Gross Settlement Express Transfer
system (or any successor settlement system) is not scheduled to operate (as
determined by the Administrative Agent).
"Taxes" means all present or future taxes, levies, imposts, duties,
deductions, withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties
applicable thereto.
"Termination Date" means the earlier of July 30, 2012 and the date
of termination in whole of the Commitments pursuant to Section 2.09 or 7.01.
"Termination Event" means (i) a Reportable Event with respect to
any Benefit Plan; (ii) the withdrawal of the Borrower or any member of the
Controlled Group from a Benefit Plan during a plan year in which the Borrower
or such Controlled Group member was a "substantial employer" as defined in
Section 4001(a)(2) of ERISA; (iii) the imposition of an obligation on the
Borrower or any member of the Controlled Group under Section 4041 of ERISA to
provide affected parties written notice of intent to terminate a Benefit Plan
in a distress termination described in Section 4041(c) of ERISA; (iv) the
institution by the PBGC or any similar foreign Governmental Authority of
proceedings to terminate or appoint a trustee to administer a Benefit Plan or
Foreign Pension Plan; (v) any event or condition which could reasonably
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Benefit Plan; (vi) the partial or
complete withdrawal of the Borrower or any member of the Controlled Group
from a Multiemployer Plan or Foreign Pension Plan or (vii) the termination or
reorganization of a Multiemployer Plan.
"Total Funded Debt" means on any date, with respect to the Borrower
and its Subsidiaries on a Consolidated basis, all Indebtedness of the
Borrower and its Subsidiaries which by its terms or by the terms of any
instrument or agreement relating thereto matures more than six months after
the date of incurrence thereof, and any such Indebtedness maturing within six
months from the date of incurrence which is directly or indirectly renewable
or extendible at the option of such Person to a date more than six months
from such date of incurrence (including an option of such Person under a
revolving credit or similar agreement obligating the lender or lenders to
extend credit over a period of more than six months from such date of
incurrence) and all Guarantee Obligations of the Borrower and its
Subsidiaries on such date in respect of any such Indebtedness of Persons
other than the Borrower and its Subsidiaries.
"Total Outstandings" means, at any time, without duplication, the
sum of (i) the Outstanding Advances, and (ii) the Letter of Credit
Outstandings.
"Trade Letter of Credit" means any Letter of Credit payable at
sight that is issued for the benefit of a supplier to the Borrower or any of
its Subsidiaries to effect payment to the supplier.
"Trademark Security Agreement" means that certain Trademark
Security Agreement, substantially in the form of Exhibit F hereto, dated as
of the Effective Date, executed by each applicable Loan Party and the
Administrative Agent for the benefit of the Holders of Secured Obligations,
as the same may be amended, restated, supplemented, or otherwise modified
from time to time.
"Transaction" means, collectively, (i) the consummation of the
Refinancing, (ii) the entering into of the Loan Documents on the Effective
Date and (iii) the payment of all fees and expenses in connection with the
foregoing.
"Treaty on European Union" means the Treaty of Rome of March 25,
1957, as amended by the Single Xxxxxxxx Xxx 0000 and the Maastricht Treaty
(which was signed at Maastricht on February 7, 1992, and came into force on
November 1, 1993), as amended from time to time.
"Type" has the meaning specified in the definition of "Advance".
"UCC" means the Uniform Commercial Code as from time to time in
effect in the relevant jurisdiction.
"Unfunded Liabilities" means the amount (if any) by which the
present value of all vested and unvested accrued benefits under all Benefit
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unused Commitments" means, at any time, the aggregate amount of
the Commitments then unused and outstanding after deducting the Total
Outstandings.
"Voting Stock" means Capital Stock issued by a corporation or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even though the right to so vote has been suspended by the happening
of such contingency.
"Wake Forest Consent" means the Consent and Agreement, dated the
date hereof, among Wake Forest University, the Borrower and the
Administrative Agent.
"Wake Forest License Agreement" means that certain License
Agreement, dated October 6, 1993, between Wake Forest University and Kinetic
Concepts, Inc.
"Wake Forest University" means Wake Forest University Health
Sciences, a nonprofit entity controlled by Wake Forest University, an
educational institution organized under the laws of the State of North
Carolina.
"Warrant Transaction" means any warrant issued by the Borrower
substantially concurrently with, and as part of, a call spread option or
similar option transaction of which a Convertible Note Hedge Transaction
comprised a part.
"Xxxxx Fargo Bank" means Xxxxx Fargo Bank, N.A. and its successors
and assigns.
"Withdrawal Liability" has the meaning specified in Part 1 of
Subtitle E of Title IV of ERISA.
"Yen" means the lawful currency of Japan.
SECTION 1.02. Certain Rules of Construction. The definitions of
terms herein shall apply equally to the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation." The word "will" shall be construed to have the same
meaning and effect as the word "shall." Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise
modified (subject to any restrictions on such amendments, supplements or
modifications set forth herein), (b) any reference herein to any Person shall
be construed to include such Person's successors and assigns, (c) the words
"herein," "hereof" and "hereunder," and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any
particular provision hereof, (d) all references herein to Articles, Sections,
Exhibits and Schedules shall be construed to refer to Articles and Sections
of, and Exhibits and Schedules to, this Agreement, (e) any reference to any
law or regulation herein shall, unless otherwise specified, refer to such law
or regulation as amended, modified or supplemented from time to time and (f)
the words "asset" and "property" shall be construed to have the same meaning
and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights.
SECTION 1.03. Computation of Time Periods. In this Agreement in the
computation of periods of time (i) from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding" and (ii) within a certain number of
days, the word "within" means "within and including."
SECTION 1.04. Rounding. Any financial ratios required to be
maintained by the Borrower pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying the
result to one place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the nearest number
(with a rounding-up if there is no nearest number).
SECTION 1.05. Times of Day. Unless otherwise specified, all
references herein to times of day shall be references to Eastern time
(daylight or standard, as applicable).
SECTION 1.06. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with GAAP
consistent with those applied in the preparation of the financial statements
referred to in Section 5.01(d) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. (a) (i) Each Lender severally agrees,
and not jointly, on the terms and conditions hereinafter set forth, to make
Advances requested by the Borrower hereunder from time to time in Dollars,
Euro, Sterling, Canadian Dollars or Yen or any other Eligible Currency that
becomes an Agreed Currency pursuant to clause (y) of the definition of
"Agreed Currencies" on any Business Day during the period from the Effective
Date until the Termination Date in an aggregate amount not to exceed at any
time outstanding such Lender's Commitment minus such Lender's Pro Rata Share
of the Total Outstandings, provided, that the aggregate amount of Advances in
Canadian Dollars shall not exceed the Dollar Equivalent of $250,000,000 and
the aggregate amount of Advances in Yen shall not exceed the Dollar
Equivalent of $250,000,000.
(b) Anything in this Agreement to the contrary notwithstanding, the
Total Outstandings shall (i) not on any Credit Extension Date, on the last
day of an Interest Period for any outstanding Borrowing nor before and after
giving effect to any proposed Advances exceed the Aggregate Commitment or
(ii) not on the last Business Day of any week exceed 103% of the Aggregate
Commitment.
(c) Each Advance (other than an Advance to reimburse the Issuing Bank or
the Administrative Agent for a Letter of Credit Loan) shall be in integral
amounts of 1,000,000 with a minimum amount of $5,000,000 (or the Dollar
Equivalent if denominated in an Alternate Currency). Within the limits of
each Lender's Commitment, the Borrower may borrow under this Section 2.01,
prepay pursuant to Section 2.10(b) and reborrow under this Section 2.01. The
Advances made pursuant to this Section 2.01 shall be, at the option of the
Borrower selected in accordance with Section 2.05 either Base Rate Advances
in Dollars or Eurocurrency Rate Advances in any Agreed Currency. On the
Termination Date, the Borrower shall repay in full the outstanding principal
balance of the Advances. Each Advance under this Section 2.01 shall consist
of Advances made by the Lenders ratably according to their respective
Commitments.
SECTION 2.02. Making of Advances. (a) Each Borrowing shall be made
on notice, given not later than (x) 1:00 P.M. (New York City time, or, in the
case of a Borrowing in an Alternate Currency, London time) on the third (or,
in the case of a Borrowing to be denominated in an Alternate Currency,
fourth) Business Day prior to the date of a Eurocurrency Rate Advance
Borrowing, and (y) 1:00 P.M. (New York City time) on the day of a Base Rate
Advance Borrowing, by the Borrower to the Administrative Agent, which shall
give to each Lender prompt notice thereof by telecopier, telex or cable. Each
notice of a Borrowing (a "Notice of Borrowing") shall be made in writing, or
orally and confirmed immediately in writing, by telecopier, telex or cable,
in substantially the form of Exhibit B hereto, specifying therein the
requested (i) date of such Borrowing (which shall be a Business Day), (ii)
Currency and Type of Advance comprising such Borrowing, (iii) aggregate
amount of such Borrowing and (iv) in the case of a Borrowing comprised of
Eurocurrency Rate Advances, the Interest Period for each such Advance. Each
Lender shall (A) before 11:00 A.M. Local Time on the date of such Borrowing
(in the case of a Eurocurrency Rate Advance) and (B) before 1:00 P.M. (New
York City time) on the date of such Borrowing (in the case of a Base Rate
Advance), make available for the account of its Applicable Lending Office to
the Administrative Agent at the Administrative Agent's Account for the
relevant Currency in same day funds, such Lender's ratable portion of such
Borrowing. After the Administrative Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in Article IV, the
Administrative Agent will make such funds available to the Borrower;
provided, however, that the Administrative Agent shall first make a portion
of such funds equal to the aggregate principal amount of any Letter of Credit
Loans as to which the Borrower has received timely notice made by the Issuing
Bank and by any other Lender and outstanding on the date of such Borrowing,
plus interest accrued and unpaid thereon to and as of such date, available to
the Issuing Bank and such other Lenders for repayment of such Letter of
Credit Loans.
(b) Anything in paragraph (a) above to the contrary notwithstanding, the
Borrower may only select Eurocurrency Rate Advances for a Borrowing if the
aggregate amount of such Borrowing is in integral amounts of 1,000,000 with a
minimum amount of $5,000,000 (or the Dollar Equivalent if denominated in an
Alternate Currency).
(c) Subject to Sections 2.04(c) and 2.25, each Notice of Borrowing shall
be irrevocable and binding on the Borrower. In the case of any Borrowing by
the Borrower which the related Notice of Borrowing specifies is to be
comprised of Eurocurrency Rate Advances, the Borrower shall indemnify each
relevant Lender against any loss, cost or expense incurred by such Lender as
a result of any failure by Borrower to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article IV, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund the Advance to be made by such Lender as part of such
Borrowing when such Advance, as a result of such failure, is not made on such
date.
SECTION 2.03. Interest.
(a) Ordinary Interest. The Borrower shall pay interest on the unpaid
principal amount of each Advance made by each Lender to the Borrower, from
the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances and Letter of Credit Loans. If such Advance
is a Base Rate Advance, a rate per annum equal at all times to the Base
Rate in effect from time to time, payable on (A) each Payment Date while
such Advance is outstanding or (B) in the case of a Letter of Credit
Loan, the last day of each month during which such Letter of Credit Loan
is outstanding, and in each case, on the date such Advance or Letter of
Credit Loan shall be paid in full.
(ii) Eurocurrency Rate Advances. If such Advance is a Eurocurrency
Rate Advance, a rate per annum equal at all times to the Eurocurrency
Rate, during each Interest Period for such Advance, payable on the last
day of such Interest Period and, if such Interest Period has a duration
of more than three months, at three-month intervals following the first
day of such Interest Period.
(b) Default Interest. Notwithstanding the foregoing, the Borrower shall
pay interest on (x) the unpaid principal amount of each Advance made by each
Lender to the Borrower that is not paid when due, payable in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum
equal at all times to two percentage points (2%) per annum above the rate per
annum required to be paid on such Advance pursuant to said clause (a)(i) or
(a)(ii) and (y) the amount of any interest, fee or other amount payable
hereunder that is not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to two percentage points (2%) per annum above the rate per annum
required to be paid on Base Rate Advances pursuant to clause (a)(i) above.
SECTION 2.04. Interest Rate Determinations.
(a) The Administrative Agent shall give prompt notice to the Borrower
and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.03(a), and the applicable
rate, if any, displayed on the relevant Screen or furnished by the Reference
Bank, as the case may be, for the purpose of determining the applicable
interest rate under Section 2.03(a)(ii).
(b) If prior to 10:00 A.M. (New York City time) on any date on which an
interest rate is to be determined pursuant to (a) the proviso to the
definition of clause (a) of "Eurocurrency Base Rate" relating to LIBOR
Advances, deposits in the relevant Currency are not being offered by the
Reference Bank to prime banks in the London interbank market for the
applicable Interest Period or in the applicable amounts or (b) the proviso to
the definition of clause (b) of "Eurocurrency Base Rate" relating to EURIBOR
Advances, deposits in Euros are not being offered by the Reference Bank to
prime banks in the European interbank market for the applicable Interest
Period or in the applicable amounts, then, in each case, the Administrative
Agent shall so notify the Borrower of such circumstances, whereupon the right
of the Borrower to select Eurocurrency Rate Advances in such Currency for any
requested Advance or any subsequent Advance shall be suspended until the
first date on which the circumstances causing such suspension cease to exist.
If the Borrower shall not, in turn, before 1:00 P.M. (New York City time) on
such date notify the Administrative Agent that its Notice of Borrowing with
respect to such Eurocurrency Rate shall be converted to a Notice of Borrowing
for a Eurocurrency Rate Advance in a different Currency or a Base Rate
Advance, such Notice of Borrowing shall be deemed to be canceled and of no
force or effect, and the Borrower shall not be liable to the Administrative
Agent or any Lender with respect thereto except as set forth in Section
2.02(c). In the event of such a suspension, upon the Administrative Agent's
determination that the circumstances causing such suspension no longer exist,
the Administrative Agent shall notify the Borrower, the Issuing Bank and the
Lenders of the end of such suspension and thereafter the Borrower shall be
entitled, on the terms and subject to the conditions set forth herein, to
borrow Eurocurrency Rate Advances in such Currency.
SECTION 2.05. Conversion of Advances.
(a) Optional. The Borrower may on any Business Day, upon notice given to
the Administrative Agent not later than 1:00 P.M. (New York City time) on (x)
the third (or the fourth, in the case of Eurocurrency Rate Advances
denominated in an Alternate Currency) Business Day prior to the date of the
proposed Conversion into Eurocurrency Rate Advances and (y) the first
Business Day prior to the date of the proposed Conversion into Base Rate
Advances, and, in each case, subject to the provisions of Section 2.16,
Convert all or any portion of the Advances of one Type in the same Currency
comprising the same Borrowing into Advances of the other Type in the same
Currency; provided, however, that any Conversion of Eurocurrency Rate
Advances into Base Rate Advances shall be made only on the last day of an
Interest Period for such Eurocurrency Rate Advances and any Conversion of
Base Rate Advances into Eurocurrency Rate Advances shall be in an amount not
less than the minimum amount specified in Section 2.02(b). Each such notice
of Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Advances to be Converted and (iii) if such
Conversion is into Eurocurrency Rate Advances, the duration of the initial
Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. If the Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Administrative Agent will forthwith so notify the Borrower and the
Lenders, whereupon each such Eurocurrency Rate Advance will automatically, on
the last day of the then existing Interest Period therefor, Convert into a
Base Rate Advance.
(c) No Conversion Post-Default or Post-Event of Default. Notwithstanding
anything to the contrary contained in Section 2.05(a) or 2.05(b) no Base Rate
Advance may be converted into or continued as a Eurocurrency Rate Advance
(except with the consent of the Required Lenders) when any Default or Event
of Default has occurred and is continuing.
SECTION 2.06. Rate Options for Advances; Maximum Interest Periods.
The Advances may be Base Rate Advances or Eurocurrency Rate Advances, or a
combination thereof, selected by the Borrower in accordance with Sections
2.02 and 2.05. The Borrower may select, in accordance with Sections 2.02 and
2.05, Rate Options and Interest Periods applicable to portions of the
Advances; provided, that all Base Rate Advances hereunder shall be
denominated in Dollars and provided, further that there shall not be more
than ten (10) Eurocurrency Rate Advances in effect at any given time.
SECTION 2.07. Payments and Computations.
(a) All payments of principal of and interest on each Advance in a
particular Currency shall be made in such Currency.
(b) (i) Payments of principal of and interest on the Advances and all
other amounts whatsoever payable by the Borrower under this Agreement and the
other Loan Documents shall be made in immediately available funds, without
deduction, setoff or counterclaim, to the Administrative Agent's Account for
the relevant Currency, not later than 11:00 A.M. (New York City time) (in the
case of amounts payable in Dollars) or 11:00 A.M. Local Time in the location
of the Administrative Agent's Account (in the case of amounts payable in an
Alternate Currency), on the day when due.
(ii) The Administrative Agent will promptly thereafter cause to be
distributed like funds relating to the payment of principal or interest
or fees ratably (other than amounts payable pursuant to Section 2.08,
2.11 or 2.14) to the Lenders entitled thereto for the account of their
respective Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender to such Lender for the
account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement.
(iii) Upon its acceptance of an Assumption Agreement or Assignment
and Acceptance and recording of the information contained therein in the
Register pursuant to Section 9.07(e), from and after the effective date
specified in such Assumption Agreement or Assignment and Acceptance, as
the case may be, the Administrative Agent shall make all payments
hereunder and under the other Loan Documents in respect of the interest
assigned or assumed thereby to the Lender assignee thereunder. The
parties to each Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective date
directly between themselves.
(c) All computations of interest based on the Base Rate (other than if
the Base Rate is computed on the basis of the Federal Funds Rate), Advances
denominated in Sterling and of letter of credit commissions shall be made by
the Administrative Agent on the basis of a year of 365 or 366 days, as the
case may be, and all computations of interest based on the Eurocurrency Rate
or the Base Rate based on the Federal Funds Rate shall be made by the
Administrative Agent on the basis of a year of 360 days and all computations
of commitment fees shall be as specified in Section 2.08(a), in each case for
the actual number of days (including the first day but excluding the last
day) occurring in the period for which such interest or fees are payable.
Each determination by the Administrative Agent of an interest rate hereunder
shall be conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under any Loan Document shall be
stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest, commitment
fee or letter of credit commission, as the case may be; provided, however, if
such extension would cause payment of interest on or principal of
Eurocurrency Rate Advances to be made in the next following calendar month,
such payment shall be made on the next preceding Business Day.
(e) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent
may, in reliance upon such assumption, cause to be distributed to each
relevant Lender on such due date an amount equal to the amount then due such
Lender. If and to the extent that the Borrower shall not have so made such
payment in full to the Administrative Agent, each such Lender shall repay to
the Administrative Agent forthwith on demand such amount distributed to such
Lender together with interest thereon, for each day from the date such amount
is distributed to such Lender until the date such Lender repays such amount
to the Administrative Agent, at the Federal Funds Rate. Nothing herein shall
be deemed to limit the rights of the Administrative Agent, the Issuing Bank
or any Lender against the Borrower.
(f) Anything in Sections 2.03 or 2.10 to the contrary notwithstanding,
and without prejudice to Sections 2.03(b) or 7.01(a), if the Borrower shall
fail to pay any principal or interest denominated in an Alternate Currency
within one Business Day after the due date therefor in the case of principal
and three Business Days after the due date therefor in the case of interest
(without giving effect to any acceleration of maturity under Article VII),
the amount so in default shall automatically be redenominated in Dollars on
the day one Business Day after the due date therefor in the case of a
principal payment and three Business Days after the due date therefor in the
case of an interest payment in an amount equal to the Dollar Equivalent of
such principal or interest.
(g) The Applicable Eurocurrency Margin, Applicable Base Rate Margin and
Applicable Commitment Fee Percentage shall be determined on the basis of the
then applicable Xxxxx'x Rating and applicable S&P Rating of the Borrower, as
defined and described in the Pricing Schedule hereto.
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower agrees to pay
to the Administrative Agent for the account of each Lender a commitment fee
(the "Commitment Fee") on the average daily amount of such Lender's Unused
Commitment from the Effective Date in the case of each Initial Lender and
from the later of the Effective Date and the effective date specified in the
Assumption Agreement or Assignment and Acceptance, as the case may be,
pursuant to which it became a Lender in the case of each other Lender until
the Termination Date at a rate per annum equal to the Applicable Commitment
Fee Percentage in effect from time to time, payable on each Payment Date and
on the Termination Date, commencing on the first Payment Date after the date
hereof. The Commitment Fee shall be calculated for actual days elapsed on the
basis of a 360-day year.
(b) Administrative Agent's Fees. The Borrower agrees to pay to the
Administrative Agent and/or CGMI, as the case may be, and as and when due and
payable under the terms of the Fee Letter, the fees set forth in the Fee
Letter.
SECTION 2.09. Voluntary Reduction of Commitments. The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part ratably
among the Lenders, in an aggregate minimum amount of $5,000,000 with respect
thereto and integral multiples of $1,000,000 in excess of that amount with
respect thereto (unless the Aggregate Commitment is reduced in whole), upon
at least three (3) Business Days' prior written notice to the Administrative
Agent, which notice shall specify the amount of any such reduction; provided,
however, that the amount of the Aggregate Commitment may not be reduced below
the Total Outstandings. All accrued Commitment Fees shall be payable on the
effective date of any termination of the obligations of the Lenders to make
Advances hereunder.
SECTION 2.10. Repayment. (a) Advances. The Borrower shall repay in
full to the Administrative Agent for the ratable account of each Lender on
the Termination Date the aggregate principal amount of its respective
Advances then outstanding.
(b) Optional Payments. The Borrower may from time to time and at any
time, upon notice to the Administrative Agent, repay or prepay, without
penalty or premium, all or any part of outstanding Base Rate Advances in an
aggregate minimum amount of $5,000,000 and in integral multiples of
$1,000,000 in excess thereof. Eurocurrency Rate Advances may be voluntarily
repaid or prepaid prior to the last day of the applicable Interest Period,
subject to the indemnification provisions contained in Section 2.16, in
integral amounts of 1,000,000 with a minimum amount of $5,000,000 (or the
Dollar Equivalent if denominated in an Alternate Currency) in excess thereof;
provided, that the Borrower may not so prepay Eurocurrency Rate Advances
unless it shall have provided at least three (3) Business Days' prior written
notice to the Administrative Agent of such prepayment if the Advance subject
to such prepayment is denominated in Dollars and four (4) Business Days'
prior written notice to the Administrative Agent if the Advance subject to
such prepayment is denominated in an Alternate Currency.
(c) Certain Prepayments.
(i) If, as of the last Business Day of any week during the period
from the Effective Date until the Termination Date, (1) the sum of (x)
the aggregate amount of all Advances (for which purpose the amount of
any Advance that is denominated in an Alternate Currency shall be deemed
to be the Dollar Equivalent thereof) plus (y) the Available Amount of
all Letters of Credit (for which purpose the Available Amount of any
Letter of Credit denominated in Sterling, Euros or any other Alternate
Currency shall be deemed to be the Dollar Equivalent thereof as of the
date of determination) exceeds (2) 103% of the then Aggregate
Commitments, the Administrative Agent shall use all reasonable efforts
to give prompt written notice thereof to the Borrower, specifying the
amount to be prepaid under this clause (i), and the Borrower shall,
within two Business Days of the date of such notice, prepay the
Advances, or cause Advances to be prepaid, in an amount so that after
giving effect thereto the aggregate outstanding principal amount of the
Advances (determined as aforesaid) plus the Available Amount of all
Letters of Credit (determined as aforesaid) does not exceed the
Aggregate Commitment; provided that any such payment shall be
accompanied by any amounts payable under Section 2.16.
(ii) In addition, if on the last day of any Interest Period the
aggregate outstanding principal amount of the Advances (after giving
effect to any Advances being made to repay Advances maturing on that
date) plus the Available Amount of all Letters of Credit would exceed
100% of the Aggregate Commitments, the Administrative Agent shall use
all reasonable efforts to give prompt written notice thereof to the
Borrower, specifying the amount to be prepaid under this clause (ii),
and the Borrower shall, within two Business Days of the date of such
notice, prepay the Advances, or cause Advances to be prepaid, or reduce
the requested Advances in such amounts that after giving effect to such
action the aggregate outstanding principal amount of the Advances (after
giving effect to any Advances being made to repay Advances maturing on
that date) plus the Available Amount of all Letters of Credit does not
exceed the Aggregate Commitment; provided that any such payment shall be
accompanied by any amounts payable under Section 2.16.
(iii) The determinations of the Administrative Agent under this
Section 2.10(c) shall be conclusive and binding on the Borrower in the
absence of manifest error.
SECTION 2.11. Increased Costs; Capital Requirements and Reserves on
Eurocurrency Rate Advances.
(a) Increased Costs Generally. If any Change (other than any change by
way of imposition or increase of reserve requirements included in the
Eurocurrency Rate Reserve Percentage, in each case as of the date of
determination thereof) in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit,
compulsory loan, insurance charge or similar requirement against assets
of, deposits with or for the account of, or credit extended or
participated in by, any Lender (except any reserve requirement reflected
in Section 2.11(c) below);
(ii) change the basis of taxation of payments to such Lender in
respect thereof (except for Indemnified Taxes or Other Taxes covered by
Section 2.14 and the imposition of, or any change in the rate of, any
Excluded Tax payable by such Lender); or
(iii) impose on any Lender or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurocurrency
Advances made by such Lender;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Rate Advance (or of
maintaining its obligation to make any such Advance) or to reduce the amount
of any sum received or receivable by such Lender hereunder (whether of
principal, interest or any other amount) then, upon request of such Lender,
the Borrower will pay to such Lender, such additional amount or amounts as
will compensate such Lender for such additional costs incurred or reduction
suffered.
(b) Capital Requirements. If any Lender determines that any Change in
Law affecting such Lender or the Applicable Lending Office of such Lender or
such Lender's holding company, if any, regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender's capital
or on the capital of such Lender's holding company, if any, as a consequence
of this Agreement, the Commitments of such Lender or the Advances made by
such Lender to a level below that which such Lender or such Lender's holding
company could have achieved but for such Change in Law (taking into
consideration such Lender's policies and the policies of such Lender's
holding company with respect to capital adequacy), then from time to time the
Borrower will pay to such Lender, as the case may be, such additional amount
or amounts as will compensate such Lender or such Lender's holding company
for any such reduction suffered.
(c) Reserves on Eurocurrency Rate Advances. The Borrower shall pay to
each Lender on the last day of each Interest Period so long as such Lender is
maintaining reserves against Eurocurrency Liabilities (or so long as such
Lender is maintaining reserves against any other category of liabilities that
includes deposits by reference to which the interest rate on Eurocurrency
Rate Advances is determined as provided in this Agreement or against any
category of extensions of credit or other assets of such Lender that includes
any Eurocurrency Rate Advances) an additional amount (determined by such
Lender and notified to the Borrower through the Administrative Agent) equal
to the product of the following for each Eurocurrency Rate Advance for each
day during such Interest Period:
(i) the principal amount of such Eurocurrency Rate Advance
outstanding on such day; and
(ii) the remainder of (x) a fraction the numerator of which is the
rate (expressed as a decimal) at which interest accrues on such
Eurocurrency Rate Advance for such Interest Period as provided in this
Agreement (less the Applicable Margin) and the denominator of which is
one minus the Eurocurrency Rate Reserve Percentage in effect on such day
minus (y) such numerator; and
(iii) 1/360.
(d) Certificates for Reimbursement. A certificate of a Lender setting
forth the amount or amounts necessary to compensate such Lender or its
holding company, as the case may be, as specified in this Section 2.11(a),
(b) or (c) and delivered to the Borrower shall be deemed conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 10 days after receipt thereof.
(e) Delay in Requests. Failure or delay on the part of any Lender to
demand compensation pursuant to the foregoing provisions of this Section 2.11
shall not constitute a waiver of such Lender's right to demand such
compensation, provided that the Borrower shall not be required to compensate
a Lender pursuant to the foregoing provisions of this Section 2.11 for any
increased costs incurred or reductions suffered more than nine months prior
to the date that such Lender notifies the Borrower of the Change in Law
giving rise to such increased costs or reductions and of such Lender's
intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period
of retroactive effect thereof).
(f) Survival. The obligations of the Borrower under this Section 2.11
shall survive the repayment of all Obligations and the termination of the
Commitments and this Agreement.
SECTION 2.12. Illegality. Notwithstanding any other provision of
this Agreement, if any Lender shall notify the Administrative Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any other Governmental Authority asserts
that it is unlawful, for any Lender or its Applicable Lending Office to
perform its obligations hereunder to make Eurocurrency Rate Advances or to
fund or maintain Eurocurrency Rate Advances hereunder, (a) each Eurocurrency
Rate Advance will automatically, upon such demand, Convert into a Base Rate
Advance subject to the requirements of Section 2.16 and (b) the obligation of
the Lenders to make, or to Convert Advances into, Eurocurrency Rate Advances
shall be suspended until the Administrative Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer
exist.
SECTION 2.13. [Intentionally Omitted]
SECTION 2.14. Taxes. (a) Payments Free of Taxes. Any and all
payments by or on account of any obligation of the Borrower hereunder or
under any other Loan Document shall be made free and clear of and without
reduction or withholding for any Indemnified Taxes or Other Taxes, provided
that if the Borrower shall be required by applicable law to deduct any
Indemnified Taxes (including any Other Taxes) from such payments, then (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums
payable under this Section 2.14) the Administrative Agent or Lender, as the
case may be, receives an amount equal to the sum it would have received had
no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrower. Without limiting Section
2.14(a), the Borrower shall timely pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent and each Lender, within 10 days after demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 2.14) paid by the Administrative Agent or
such Lender, as the case may be, and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender
(with a copy to the Administrative Agent), or by the Administrative Agent on
its own behalf or on behalf of a Lender, shall be deemed conclusive absent
manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of
Indemnified Taxes or Other Taxes by the Borrower to a Governmental Authority,
the Borrower shall deliver to the Administrative Agent the original or a
certified copy of a receipt issued by such Governmental Authority evidencing
such payment, a copy of the return reporting such payment or other evidence
of such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to an
exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrower is resident for tax purposes, or any
treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower
(with a copy to the Administrative Agent), on or prior to the Effective Date,
or in the case of a Lender that is an Assuming Lender pursuant to Section
2.23 or an assignee or transferee of an interest under this Agreement
pursuant to Section 9.07 (unless the respective Lender was already a Lender
hereunder immediately prior to such assignment or transfer), on the date of
such assignment or transfer to such Lender, such properly completed and
executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding.
In addition, any Lender, if requested by the Borrower or the Administrative
Agent, shall deliver such other documentation prescribed by applicable law or
reasonably requested by the Borrower or the Administrative Agent as will
enable the Borrower or the Administrative Agent to determine whether or not
such Lender is subject to backup withholding or information reporting
requirements.
Without limiting the generality of the foregoing, in the event that the
Borrower is resident for tax purposes in the United States, any Foreign
Lender shall deliver to the Borrower and the Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the
Effective Date, or in the case of a Foreign Lender that is an Assuming Lender
pursuant to Section 2.23 or an assignee or transferee of an interest under
this Agreement pursuant to Section 9.07 (unless the respective Foreign Lender
was already a Foreign Lender hereunder immediately prior to such assignment
or transfer), on the date of such assignment or transfer to such Foreign
Lender (and from time to time thereafter upon the request of the Borrower or
the Administrative Agent), whichever of the following is applicable:
(i) duly and validly completed copies of Internal Revenue Service
Form W-8BEN claiming eligibility for benefits of an income tax treaty to
which the United States is a party,
(ii) duly and validly completed copies of Internal Revenue Service
Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Internal
Revenue Code, (x) a certificate (a "Non-Bank Certificate") to the effect
that such Foreign Lender is not (A) a "bank" within the meaning of
Section 881(c)(3)(A) of the Internal Revenue Code, (B) a "10 percent
shareholder" of the Borrower within the meaning of Section 881(c)(3)(B)
of the Internal Revenue Code, or (C) a "controlled foreign corporation"
described in Section 881(c)(3)(C) of the Internal Revenue Code and (y)
duly completed copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for
claiming exemption from or a reduction in United States Federal
withholding tax duly and validly completed together with such
supplementary documentation as may be prescribed by applicable law to
permit the Borrower to determine the withholding or deduction required
to be made.
In addition, each Foreign Lender agrees that from time to time after the
Effective Date provided there has not been a Change in Law that makes it
unable to do so, when a lapse in time or change in circumstances renders the
previous certification obsolete or inaccurate in any material respect, it
will deliver to the Borrower new duly completed original signed copies of
Internal Revenue Service Form W-8ECI, Form W-8BEN (with respect to the
benefits of any income tax treaty), or Form W-8BEN (with respect to the
portfolio interest exemption) and a Non-Bank Certificate, as the case may be,
and such other forms as may be required in order to confirm or establish the
entitlement of such Lender to a continued exemption from or reduction in
United States withholding tax with respect to payments under this Agreement
and any Loan Document. Notwithstanding anything to the contrary contained in
this Section 2.14, (x) the Borrower shall be entitled, to the extent it is
required to do so by law, to deduct or withhold income or similar taxes
imposed by the United States (or any political subdivision or taxing
authority thereof or therein) from interest, fees or other amounts payable
hereunder for the account of any Foreign Lender to the extent that such
Lender has not provided to the Borrower United States Internal Revenue
Service Forms that establish a complete exemption from such deduction or
withholding (or, in the case of a Foreign Lender that has established a
reduced rate of withholding, up to such reduced rate) and (y) the Borrower
shall not be obligated pursuant to Section 2.14(a) to gross up payments to be
made to a Foreign Lender in respect of income or similar taxes imposed by the
United States if such Lender has not provided the Borrower the Internal
Revenue Service Forms required to be provided the Borrower pursuant to this
Section 2.14(e).
(f) Treatment of Certain Refunds. If the Administrative Agent or any
Lender determines, in its sole discretion, that it has received a refund of
any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to
this Section 2.14, it shall pay to the Borrower an amount equal to such
refund (but only to the extent of indemnity payments made, or additional
amounts paid, by the Borrower under this Section 2.14 with respect to the
Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent or such Lender, as the case may be, and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund), provided that the Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the
amount paid over to the Borrower (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent or such Lender in the event the Administrative Agent or such Lender is
required to repay such refund to such Governmental Authority. This Section
2.14(f) shall not be construed to require the Administrative Agent or any
Lender to make available its tax returns (or any other information relating
to its taxes that it deems confidential) to the Borrower or any other Person.
(g) Form W-9. Each Lender that is a United States person (as such term
is defined in Section 7701(a)(30) of the Internal Revenue Code) for United
States federal income tax purposes agrees to provide the Borrower with two
accurate and complete signed original copies of Internal Revenue Service Form
W-9 (Request for Taxpayer Identification Number and Certification), or any
successor form, on or prior to the date hereof (or on the date such Lender
becomes a Lender hereunder as provided in Section 9.07), when a lapse in time
or change in circumstances renders the previous certification obsolete or
inaccurate.
(h) Survival. The obligations of the Borrower under this Section 2.14
shall survive the repayment of all Obligations and the termination of the
Commitments and this Agreement.
SECTION 2.15. Sharing of Payments, Etc. If any Lender shall obtain
any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) on account of the Advances owing to it (other
than pursuant to Section 2.11, 2.14, 2.16 or 2.17(b)) in excess of its
ratable share of payments on account of the Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other Lenders such
participations in the Advances owing to them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender, such purchase from each
Lender shall be rescinded and such Lender shall repay to the purchasing
Lender the purchase price to the extent of such recovery together with an
amount equal to such Lender's ratable share (according to the proportion of
(i) the amount of such Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender) of any interest or other amount paid
or payable by the purchasing Lender in respect of the total amount so
recovered. The Borrower agrees that any Lender so purchasing a participation
from another Lender pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including the right of
set-off) with respect to such participation as fully as if such Lender were
the direct creditor of the Borrower in the amount of such participation. The
obligations of the Lenders under this Section 2.15 shall survive the
repayment of the Obligations and the termination of the Commitments and this
Agreement.
SECTION 2.16. Compensation for Losses. Upon demand of any Lender
(with a copy to the Administrative Agent) from time to time, the Borrower
shall promptly compensate such Lender for and hold such Lender harmless from
any loss, cost or expense incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Advance
other than a Base Rate Advance on a day other than the last day of the
Interest Period for such (whether voluntary, mandatory, automatic, by reason
of acceleration or otherwise);
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make an Advance) to prepay, borrow, continue or convert any
Advance other than a Base Rate Advance on the date or in the amount notified
by the Borrower; or
(c) any assignment of a Eurocurrency Rate Advance on a day other than
the last day of the Interest Period therefor as a result of a request by the
Borrower;
including any loss of anticipated profits and any loss or expense arising
from the liquidation or reemployment of funds obtained by it to maintain such
Advance or from fees payable to terminate the deposits from which such funds
were obtained. The Borrower shall also pay any customary administrative fees
charged by such Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders
under this Section 2.16, each Lender shall be deemed to have funded each
Eurocurrency Rate Advance made by it at the Eurocurrency Rate for such
Advance by a matching deposit or other borrowing in the London interbank
market for a comparable amount and for a comparable period, whether or not
such Eurocurrency Rate Advance was in fact so funded.
SECTION 2.17. Mitigation Obligations; Replacement of Lenders.
(a) Designation of a Different Eurocurrency Lending Office. If any
Lender requests compensation under Section 2.11 or the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for
the account of any Lender pursuant to Section 2.14, or if any Lender gives a
notice pursuant to Section 2.12, then upon request of the Borrower, such
Lender shall use reasonable efforts to designate a different Eurocurrency
Lending Office for funding or booking its share hereunder or to assign its
rights and obligations hereunder to another of its offices, branches or
affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.11 or 2.14, as the case may be, in the future, or eliminate the need for
the notice pursuant to Section 2.12, as applicable, and (ii) in each case,
would not subject such Lender to any unreimbursed cost or expense and would
not otherwise be disadvantageous to such Lender. The Borrower hereby agrees
to pay all reasonable costs and expenses incurred by any Lender in connection
with any such designation or assignment.
(b) Replacement of Lenders. If any Lender requests compensation under
Section 2.11 or if the Borrower is required to pay any additional amount to
any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.14, or if any Lender defaults in its obligation to fund
Advances hereunder, then the Borrower may, at its sole expense and effort,
upon notice to such Lender and the Administrative Agent, require such Lender
to assign and delegate, without recourse (in accordance with and subject to
the restrictions contained in, and consents required by, Section 9.07), all
of its interests, rights and obligations under this Agreement and the related
Loan Documents to an assignee (acceptable to the Administrative Agent and the
Issuing Bank) that shall assume such obligations (which assignee may be
another Lender, if a Lender accepts such assignment), provided that:
(i) the Borrower shall have paid to the Administrative Agent the
assignment fee specified in Section 9.07; provided, that no such
assignment fee shall be payable in the case of an assignment to an
Eligible Assignee that is an existing Lender;
(ii) such Lender shall have received payment of an amount equal to
the outstanding principal of its Advances, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder and under the
other Loan Documents from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts, including any amounts under Section
2.16);
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.11 or payments required to be made pursuant
to Section 2.14, such assignment will result in a reduction in such
compensation or payments thereafter;
(iv) such assignment does not conflict with applicable law; and
(v) no Default or Event of Default has occurred and is continuing.
A Lender shall not be required to make any such assignment or delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and
delegation cease to apply.
SECTION 2.18. Non-Receipt of Funds by the Administrative Agent. (a)
Unless the Borrower or a Lender, as the case may be, notifies the
Administrative Agent prior to the date on which it is scheduled to make
payment to the Administrative Agent of (a) in the case of a Lender, the
proceeds of an Advance or (b) in the case of the Borrower, a payment of
principal, interest or fees to the Administrative Agent for the account of
the Lenders, that it does not intend to make such payment, the Administrative
Agent may assume that such payment has been made. The Administrative Agent
may, but shall not be obligated to, make the amount of such payment available
to the intended recipient in reliance upon such assumption. If such Lender or
Borrower, as the case may be, has not in fact made such payment to the
Administrative Agent, the recipient of such payment shall, on demand by the
Administrative Agent, repay to the Administrative Agent the amount so made
available together with interest thereon in respect of each day during the
period commencing on the date such amount was so made available by the
Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (i) in the case of payment by a Lender,
the Federal Funds Rate for such day or (ii) in the case of payment by the
Borrower, the interest rate applicable to the relevant Advance. A notice of
the Administrative Agent to any Lender or the Borrower with respect to any
amount owing under this Section 2.18 shall be conclusive, absent manifest
error.
(b) The failure of any Lender to make the Advance to be made by it as
part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.19. Termination Date. This Agreement shall be effective
until the Termination Date. Notwithstanding the termination of this
Agreement, until (A) all of the Obligations (other than contingent indemnity
obligations) shall have been fully paid and satisfied in cash, (B) all of the
Commitments shall have been terminated in accordance with the terms of this
Agreement and (C) all of the Letters of Credit shall have expired, been
canceled, terminated or cash collateralized or otherwise supported in an
amount and in a manner satisfactory to the Administrative Agent and the
Issuing Bank, all of the rights and remedies under this Agreement and the
other Loan Documents shall survive.
SECTION 2.20. Failure to Satisfy Conditions Precedent. If any
Lender makes available to the Administrative Agent funds for any Advance to
be made by such Lender as provided in the foregoing provisions of this
Article II, and such funds are not made available to the Borrower by the
Administrative Agent because the conditions to the applicable Borrowing set
forth in Article IV are not satisfied or waived in accordance with the terms
hereof, the Administrative Agent shall return such funds (in like funds as
received from such Lender) to such Lender, without interest.
SECTION 2.21. Obligations of Lenders Several. The obligations of
the Lenders hereunder to make Advances and to make payments pursuant to
Section 9.04(c) are several and not joint. The failure of any Lender to make
any Advance or to make any payment under Section 9.04(c) on any date required
hereunder shall not relieve any other Lender of its corresponding obligation
to do so on such date, and no Lender shall be responsible for the failure of
any other Lender to so make its Advances or to make its payment under Section
9.04(c).
SECTION 2.22. Evidence of Debt.
(a) Advance Account. Each Lender shall maintain in accordance with its
usual practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender owing to such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time
to time hereunder.
(b) Notes Upon Request. Any Lender may request that the Advances made by
it be evidenced by a Note to evidence (whether for purposes of pledge,
enforcement or otherwise) such Lender's Advances. In such event, the Borrower
shall prepare, execute and promptly deliver to such Lender a Note payable to
the order of such Lender in a principal amount up to the Commitment of such
Lender. Thereafter, the Advances evidenced by such Note and interest thereon
shall at all times (prior to any assignment pursuant to Section 9.07(b)) be
represented by one or more Notes in such form, payable to the order of the
payee named therein, except to the extent that any such Lender subsequently
returns any such Note for cancellation and requests that such Advances once
again be evidenced as described in clause (a) above.
SECTION 2.23. Increase in the Aggregate Commitments. (a) The
Borrower may, at any time but in any event not more than once in any calendar
year during the term of this Agreement, by notice to the Administrative
Agent, request that the aggregate amount of the Commitments be increased by a
minimum amount of $25,000,000 or an integral multiple of $10,000,000 in
excess thereof (each a "Commitment Increase"), in each case to be effective
as of a date that is at least 30 days but not more than 120 days after such
request (the "Increase Date") as specified in the related notice to the
Administrative Agent; provided, however, that (i) no Default or Event of
Default has occurred and is continuing, (ii) in no event shall the Aggregate
Commitment at any time exceed $650,000,000 and (iii) on the date of any
request by the Borrower for a Commitment Increase and on the related Increase
Date the applicable conditions set forth in Article IV shall be satisfied and
the Borrower shall be fully in compliance with its obligations under the Loan
Documents.
(b) The Administrative Agent shall promptly notify the Lenders of a
request by the Borrower for a Commitment Increase, which notice shall include
(i) the proposed amount of the requested Commitment Increase, (ii) the
proposed Increase Date and (iii) the date which shall be no later than 15
days after the receipt by the Administrative Agent of notice from the
Borrower pursuant to Section 2.23(a) by which Lenders wishing to participate
in the Commitment Increase must commit to an increase in the amount of their
respective Commitments (such date, the "Commitment Date"). Each Lender that
is willing to participate in such requested Commitment Increase (each an
"Increasing Lender") shall, in its sole discretion, give written notice to
the Administrative Agent on or prior to the Commitment Date of the amount by
which it is willing to increase its applicable Commitment. If prior to the
Commitment Date the Lenders notify the Administrative Agent that they are
willing to increase the amount of their respective Commitments by an
aggregate amount that exceeds the amount of the requested Commitment
Increase, the requested Commitment Increase shall be allocated among the
Lenders willing to participate therein in such amounts as are agreed between
the Borrower and the Administrative Agent but in the case of any Increasing
Lender not in an amount in excess of the amount agreed to by such Increasing
Lender.
(c) Promptly following the Commitment Date, the Administrative Agent
shall notify the Borrower as to the amounts, if any, by which the Lenders are
willing to participate in the requested Commitment Increase. If the aggregate
amount by which the Lenders are willing to participate in any requested
Commitment Increase on any such Commitment Date is less than the requested
Commitment Increase, then the Borrower may extend offers to one or more
Eligible Assignees to participate in any portion of the requested Commitment
Increase that has not been committed to by the Lenders as of the applicable
Commitment Date; provided, however, that the Commitment of each such Eligible
Assignee shall be in an amount equal to or greater than $5,000,000 (such
Eligible Assignee that takes a Commitment on an Increase Date in accordance
with this Section 2.23(c) being an "Assuming Lender").
(d) On each Increase Date, (x) each Assuming Lender that accepts an
offer to participate in a requested Commitment Increase in accordance with
Section 2.23(c) shall become a Lender party to this Agreement as of such
Increase Date, and (y) the Commitment of each Increasing Lender for such
requested Commitment Increase shall be so increased by the amount agreed to
by such Lender (or by the amount allocated to such Lender pursuant to the
last sentence of Section 2.23(b)) as of such Increase Date; provided,
however, that the Administrative Agent shall have received on or before such
Increase Date the following, each dated such date:
(i) certified copies of the resolutions of the Managing Person of
the Borrower and all other documents evidencing all corporate action (in
form and substance satisfactory to the Administrative Agent) approving
the Commitment Increase and the corresponding modifications to this
Agreement;
(ii) an assumption agreement substantially in the form of Exhibit
C-2 (an "Assumption Agreement") from each Assuming Lender, if any, duly
executed by such Assuming Lender, the Administrative Agent, the Issuing
Bank and the Borrower;
(iii) confirmation from each Increasing Lender of the increase in
the amount of its Commitment in a writing satisfactory to the Borrower
and the Administrative Agent;
(iv) such other documents, instruments, and agreements as the
Administrative Agent may require, including such amending or
supplementing documents duly executed by the Borrower as the
Administrative Agent may specify as being desirable to ensure the
continued existence of a first priority Lien in favor of the
Administrative Agent and Lenders over the Collateral under all
applicable laws, including the laws of any relevant jurisdiction;
(v) any Notes duly executed by the Borrower (if requested by any
Lender); and
(vi) such opinions, confirming the opinions given at the Effective
Date hereof pursuant to Section 4.01(g)(x), as the Administrative Agent
may specify.
On each Increase Date, upon fulfillment of the conditions set forth in the
immediately preceding sentence of this Section 2.23(d), the Administrative
Agent shall notify the Lenders (including, without limitation, each Assuming
Lender) and the Borrower, at or before 1:00 P.M. (New York City time), by
telecopier or telex, of the occurrence of the Commitment Increase to be
effected on such Increase Date and shall record in the Register the relevant
information with respect to each Increasing Lender and each Assuming Lender
(if any) on such date. In the event that there are Advances outstanding on
any Increase Date, promptly after receipt of such notice from the
Administrative Agent, each Increasing Lender and each Assuming Lender shall
advance funds such that the aggregate outstanding principal amount of the
Advances shall be held by the Lenders pro-rata in accordance with their
respective Commitments and the Borrower shall pay any amounts under Section
2.16 resulting from the repayment of Advances to Lenders that are not
Assuming Lenders or Increasing Lenders.
SECTION 2.24. Judgment Currency. This is an international loan
transaction in which the specification of Dollars or an Alternative Currency,
as the case may be (the "Specified Currency") and any payment in New York
City or the country of the Specified Currency, as the case may be (the
"Specified Place") is of the essence, and the Specified Currency shall be the
currency of account in all events relating to Advances denominated in the
Specified Currency. The payment obligations of the Borrower under this
Agreement and the Loan Documents, shall not be discharged by an amount paid
in another currency or in another place, whether pursuant to a judgment or
otherwise, to the extent that the amount so paid on conversion to the
Specified Currency and transfer to the Specified Place under normal banking
procedures does not yield the amount of the Specified Currency at the
Specified Place due hereunder. If for the purpose of obtaining judgment in
any court it is necessary to convert a sum due hereunder in the Specified
Currency into another currency (the "Second Currency"), the rate of exchange
which shall be applied shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase the Specified
Currency with the Second Currency on the Business Day next preceding that on
which such judgment is rendered. The obligation of the Borrower in respect of
any such sum due from it to the Administrative Agent or any Lender hereunder
(an "Entitled Person") shall, notwithstanding the rate of exchange actually
applied in rendering such judgment, be discharged only to the extent that on
the Business Day following receipt by such Entitled Person of any sum
adjudged to be due hereunder or under any Loan Document in the Second
Currency such Entitled Person may in accordance with normal banking
procedures purchase and transfer to the Specified Place the Specified
Currency with the amount of the Second Currency so adjudged to be due; and
the Borrower hereby, as a separate obligation and notwithstanding any such
judgment, agrees to indemnify such Entitled Person against, and to pay such
Entitled Person on demand in the Specified Currency, any difference between
the sum originally due to such Entitled Person in the Specified Currency and
the amount of the Specified Currency so purchased and transferred.
SECTION 2.25. Market Disruption; Denomination of Amounts in
Dollars; Dollar Equivalent of Reimbursement Obligations.
(a) Market Disruption. Notwithstanding the satisfaction of all
conditions referred to in this Article II with respect to any Advance in any
Alternate Currency, if there shall occur on or prior to the date of such
Advance any change in national or international financial, political or
economic conditions or currency exchange rates or exchange controls which
would in the reasonable opinion of the Administrative Agent or the Required
Lenders make it impracticable for the Eurocurrency Rate Advances comprising
such Advance to be denominated in such Alternate Currency, then the
Administrative Agent shall forthwith give notice thereof to the Borrower and
the Lenders, and such Eurocurrency Rate Advances shall not be denominated in
such currency but shall be made on such Borrowing Date in Dollars, in an
aggregate principal amount equal to the Dollar Amount of the aggregate
principal amount specified in the related Notice of Borrowing, as Base Rate
Advances, unless the Borrower notifies the Administrative Agent at least one
(1) Business Day before such date that it elects not to borrow on such date.
(b) Calculation of Amounts. Except as set forth below, all amounts
referenced in this Article II shall be calculated using the Dollar Equivalent
in effect as of the date of any determination thereof; provided, however,
that to the extent the Borrower shall be obligated hereunder to pay in
Dollars any Advance denominated in a currency other than Dollars, such amount
shall be paid in Dollars using the Dollar Equivalent of the Advance
(calculated based upon the Dollar Equivalent in effect on the date of payment
thereof). Notwithstanding anything herein to the contrary, in connection with
Obligations payable by the Borrower, the full risk of currency fluctuations
shall be borne by the Borrower and the Borrower agrees to indemnify and hold
harmless the Issuing Bank, the Administrative Agent and the Lenders from and
against any loss resulting from any borrowing denominated in any Alternate
Currency that is not repaid to the Lenders on the date of such borrowing.
ARTICLE III
THE LETTERS OF CREDIT
SECTION 3.01. The Letters of Credit.
(a) The Issuing Bank agrees, on the terms and conditions hereof
including the limitation set forth in Section 2.01(b), to issue one or more
letters of credit (each, a "Letter of Credit") for the account of the
Borrower, or, at the direction of the Borrower, for the account of any of its
Subsidiaries, from time to time on any Business Day during the period from
the Effective Date until the date 30 days before the Termination Date,
provided that the aggregate Available Amount of all Letters of Credit
(including the Dollar Equivalent of the Available Amount of any Letters of
Credit denominated in Euros, Sterling or any other Alternate Currency) shall
not exceed at any time the Letter of Credit Facility. Each Letter of Credit
shall be denominated in Dollars, Euros, Sterling or any other Alternate
Currency.
(b) No Letter of Credit shall have an expiration date (including all
rights of the Borrower or other account party or the beneficiary thereof to
require renewal of, or to have automatically renewed, such Letter of Credit)
later than 30 days before the Termination Date.
(c) Any Standby Letter of Credit may provide that it will be
automatically renewed annually unless notice is given (1) by the Borrower to
the Issuing Bank not less than five Business Days prior to the date of the
automatic renewal of such Standby Letter of Credit, that such Letter of
Credit will not be renewed, (2) by the Issuing Bank to the Borrower not less
than thirty Business Days prior to the date of the automatic renewal of such
Standby Letter of Credit, of its election not to renew such Letter of Credit
or (3) by the Administrative Agent at the direction of any Lender at any time
during the continuance of any Default or Event of Default; provided, however,
that the Issuing Bank shall not give such a notice except (A) at any time
during the continuance of any Default or Event of Default or (B) if any
automatic renewal would extend a Letter of Credit expiration date to later
than 30 days prior to the Termination Date. In either case in which such
notice is given pursuant to the preceding sentence, such Letter of Credit
will expire on the date it would otherwise have been automatically renewed,
provided that the terms of such Letter of Credit may (y) require the Issuing
Bank forthwith to give to the named beneficiary of such Letter of Credit
notice of any notice given pursuant to the preceding sentence and (z) permit
the beneficiary, upon receipt of the notice under clause (y), to draw under
such Letter of Credit prior to the date such Letter of Credit would otherwise
have been automatically renewed.
(d) Within the limits of the Letter of Credit Facility, and subject to
the terms hereof, the Borrower may request the issuance of Letters of Credit
under Section 3.04, repay or prepay before demand any Letter of Credit Loans
resulting from drawings thereunder pursuant to Section 3.03 and request the
issuance of additional Letters of Credit under Section 3.04.
(e) Prior to the date hereof, Xxxxx Fargo Bank has issued the Existing
Letters of Credit (as listed on Schedule 3.01(e) hereto) under the terms of
the Existing Credit Agreement. The Borrower agrees that effective on the
Effective Date, each Existing Letter of Credit shall be deemed to be a
"Letter of Credit" for all purposes of this Agreement and shall be subject to
the provisions hereof (including, without limitation, this Section 3.01 and
Section 3.04).
SECTION 3.02. Letter of Credit Compensation.
(a) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a commission on such Lender's Pro Rata Share of the
average daily aggregate Available Amount of (A) all Standby Letters of Credit
outstanding from time to time and (B) all Trade Letters of Credit outstanding
from time to time, in each case at the Applicable Eurocurrency Margin in
effect from time to time, payable in Dollars (the amount of which commission
shall be determined, in the case of the Available Amount of Letters of Credit
denominated in Euros, Sterling and any other Alternate Currency, on the basis
of the Dollar Equivalent of such amount on the date payable) in arrears
quarterly on each Payment Date and on the Termination Date, commencing on the
first Payment Date after the date hereof.
(b) The Borrower agrees to pay to the Issuing Bank, for its own account,
(x) a fronting fee with respect to each Letter of Credit issued by the
Issuing Bank, payable quarterly in arrears on each Payment Date during which
the Issuing Bank has acted in such capacity, and on the Termination Date (if
the Issuing Bank acted in such capacity up to such date), in an amount equal
to the product of 0.125% per annum of the average daily Available Amount of
such Letter of Credit multiplied by the actual number of days such Letter of
Credit was outstanding in such period, divided by 365 or 366, as applicable,
which amount shall be payable in Dollars and calculated based on the Dollar
Equivalent of any amount otherwise calculated in Euros, Sterling or other
Alternate Currency on the date when such amount is payable, and (y) such
customary fees and charges in connection with the issuance or administration
of each Letter of Credit as may be agreed in writing between the Borrower and
the Issuing Bank from time to time.
SECTION 3.03. Repayment of Letter of Credit Loans. The Borrower
shall repay to the Issuing Bank and each other Lender which has made a Letter
of Credit Loan (including, without limitation, any Letter of Credit Loan
arising out of payment of a Letter of Credit issued for the account of a
Person other than the Borrower) the outstanding principal amount of each
Letter of Credit Loan made by each of them on demand by the holder thereof
(made in writing, or orally and confirmed immediately in writing, by
telecopier, telex or cable) and, in any event, on the Termination Date. The
Borrower may prepay any Letter of Credit Loan at any time. The Issuing Bank
shall give notice to the Borrower of the making of any Letter of Credit Loan
by the Issuing Bank and of the sale or assignment of any Letter of Credit
Loan by it pursuant to Section 3.04(b), and each Lender shall give notice to
the Borrower of any sale or assignment of any Letter of Credit Loan by it, in
each case on the date on which such transaction takes place.
SECTION 3.04. Issuance of Letters of Credit.
(a) Request for Issuance.
(i) Each Letter of Credit issued after the date hereof shall be
issued upon notice, given not later than 1:00 P.M. (New York City time)
on the third Business Day prior to the proposed issuance of such Letter
of Credit (or such shorter period of time as may be acceptable to the
Issuing Bank), by the Borrower to the Issuing Bank, and to the
Administrative Agent, which shall give to each Lender prompt notice
thereof by telex, telecopier or cable. Each such notice of issuance of a
Letter of Credit (a "Notice of Issuance") shall be by telex, telecopier
or cable, confirmed immediately in writing, specifying therein the
requested (A) date of such issuance (which shall be a Business Day), (B)
Available Amount of such Letter of Credit, including Currency thereof,
(C) expiration date of such Letter of Credit, (D) name and address of
the beneficiary of such Letter of Credit and (E) form of such Letter of
Credit, and shall be accompanied by such application and agreement for
letter of credit (each such application and agreement, and each
application and agreement executed and delivered in respect of an
Existing Letter of Credit, being herein called a "Letter of Credit
Agreement") as the Issuing Bank may specify to the Borrower for use in
connection with such requested Letter of Credit.
(ii) If the requested form of such Letter of Credit is for the
account of any entity permitted under Section 3.01 and is acceptable to
the Issuing Bank, the Issuing Bank will, upon fulfillment of the
applicable conditions set forth in Article IV, make such Letter of
Credit available to the Borrower at its office referred to in Section
9.02 or as otherwise agreed with the Borrower in connection with such
issuance. In the event and to the extent that the provisions of any
Letter of Credit Agreement shall conflict with this Agreement, the
provisions of this Agreement shall govern.
(iii) The Issuing Bank shall furnish (A) to the Administrative
Agent on the first Business Day of each week a written report
summarizing the issuance and expiration dates of Letters of Credit
issued during the previous week and drawings during such week under all
Letters of Credit, (B) to each Lender and the Borrower on the first
Business Day of each month a written report summarizing the issuance and
expiration dates of Letters of Credit issued during the preceding month
and drawings during such month under all Letters of Credit and (C) to
the Administrative Agent, the Borrower and each Lender on the first
Business Day of each fiscal quarter a written report setting forth the
average daily aggregate Available Amount during the preceding fiscal
quarter of all Letters of Credit, including the Currency of each
thereof.
(b) Drawing and Reimbursement.
(i) The payment by the Issuing Bank of a draft drawn under any
Letter of Credit shall constitute for all purposes of this Agreement the
making by the Issuing Bank of a Letter of Credit Loan.
(ii) Upon written demand by the Issuing Bank, with a copy of such
demand to the Administrative Agent, each other Lender shall purchase
from the Issuing Bank, and the Issuing Bank shall sell and assign to
each such other Lender, such other Lender's Pro Rata Share of such
outstanding Letter of Credit Loan as of the date of such purchase, by
making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of the Issuing Bank, by deposit to
the Administrative Agent's Account, in same day funds, an amount equal
to the portion of the outstanding principal amount of such Letter of
Credit Loan to be purchased by such Lender (or, in the case of a Letter
of Credit Loan denominated in Sterling, Euro, Canadian Dollars, Yen or
other Alternate Currency the Dollar Equivalent thereof on such date).
The Borrower hereby agrees to each such sale and assignment.
(iii) Each Lender's obligations to make such payments to the
Administrative Agent for account of the Issuing Bank under this
paragraph (b), and the Issuing Bank's right to receive the same, shall
be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the failure of
any other Lender to make its payment under this paragraph (b), the
financial condition of the Borrower, the existence of any Default or
Event of Default, the failure of any of the conditions set forth in
Article IV to be satisfied, or the termination of the Commitments. Each
such payment to the Issuing Bank shall be made without any offset,
abatement, withholding or reduction whatsoever.
(iv) Each Lender agrees to purchase its Pro Rata Share of an
outstanding Letter of Credit Loan on (i) the Business Day on which
demand therefor is made by the Issuing Bank, provided notice of such
demand is given not later than 11:00 A.M. (New York City time) on such
Business Day or (ii) the first Business Day next succeeding such demand
if notice of such demand is given after such time.
(v) Upon any such assignment by the Issuing Bank to any other
Lender of a portion of a Letter of Credit Loan, the Issuing Bank
represents and warrants to such other Lender that the Issuing Bank is
the legal and beneficial owner of such interest being assigned by it,
but makes no other representation or warranty and assumes no
responsibility with respect to such Letter of Credit Loan, the Loan
Documents or any party hereto.
(vi) If and to the extent that any Lender shall not have so made
the amount of such Letter of Credit Loan available to the Administrative
Agent, such Lender agrees to pay to the Administrative Agent forthwith
on demand such amount together with interest thereon, for each day from
the date of demand by the Issuing Bank until the date such amount is
paid to the Administrative Agent, at the Federal Funds Rate.
(vii) If such Lender shall pay to the Administrative Agent such
amount for the account of the Issuing Bank on any Business Day, such
amount so paid in respect of principal shall constitute a Letter of
Credit Loan made by such Lender on such Business Day for purposes of
this Agreement, and the outstanding principal amount of the Letter of
Credit Loan made by the Issuing Bank shall be reduced by such amount on
such Business Day.
(c) Obligations Absolute. The obligations of the Borrower under this
Agreement, any Letter of Credit Agreement and any other agreement or
instrument relating to any Letter of Credit (and the obligations of each
Lender to purchase portions of Letter of Credit Loans pursuant to paragraph
(b) above) shall be unconditional and irrevocable, and shall be paid strictly
in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances (it being
understood that any such payment by the Borrower is without prejudice to, and
does not constitute a waiver of, any rights the Borrower might have or might
acquire as a result of the payment by the Issuing Bank or any Lender of any
draft or the reimbursement by the Borrower thereof):
(i) any lack of validity or enforceability of this Agreement, any
Letter of Credit Agreement, any Letter of Credit or any other agreement
or instrument relating thereto (this Agreement and all of the other
foregoing being, collectively, the "L/C Related Documents");
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver of
or any consent to departure from all or any of the L/C Related
Documents;
(iii) the existence of any claim, set off, defense or other right
that the Borrower (or any other account party) may have at any time
against any beneficiary or any transferee of a Letter of Credit (or any
Persons for whom any such beneficiary or any such transferee may be
acting), the Issuing Bank or any other Person, whether in connection
with the transactions contemplated by the L/C Related Documents or any
unrelated transaction;
(iv) any statement or any other document presented under a Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in
any respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply
with the terms of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower.
SECTION 3.05. Replacement by the Issuing Bank. In the event that
S&P and Xxxxx'x shall, after the date that any Person becomes a Lender,
downgrade the long term certificate of deposit ratings of such Lender (or its
parent entity, if such Lender has no such rating), and the resulting ratings
shall be below BBB and Baa2, respectively, or the equivalent, then the
Issuing Bank shall in consultation with the Borrower have the right, but not
the obligation, at their own expense, upon notice to such Lender and the
Administrative Agent, to replace such Lender with an Eligible Assignee, and
such Lender hereby agrees to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 9.07)
all the interests, rights and obligations in respect of its Commitment to an
Eligible Assignee; provided, however, that (x) no such assignment shall
conflict with any law, rule or regulation or order of any Governmental
Authority and (y) the Issuing Bank or such Eligible Assignee, as the case may
be, shall pay to such Lender in same day funds on the date of such assignment
the principal of and interest accrued to the date of payment on the Advances
made by such Lender hereunder and all other amounts accrued for such Lender's
account or owed to it hereunder including, without limitation, any amounts
due under Section 2.16. Upon any such termination or assignment, such Lender
shall cease to be a party hereto but shall continue to be obligated under
Section 8.06 and be entitled to the benefits of Section 9.04, as well as to
any fees and other amounts accrued for its account under Sections 2.08, 2.11
or 2.14 and not yet paid.
ARTICLE IV
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 4.01. Conditions Precedent to Effectiveness. This Agreement
shall not become effective and the obligation of the Lenders to make Advances
and of the Issuing Bank to issue Letters of Credit hereunder (including the
deemed issuance of the Existing Letters of Credit) shall not become effective
until the date on which the following conditions precedent have been
satisfied (the "Effective Date"):
(a) No Material Adverse Change. There shall have occurred no Material
Adverse Change since December 31, 2006.
(b) Litigation. There shall exist no pending or, to Borrower's
knowledge, threatened, action, suit, investigation, litigation or proceeding
affecting the Borrower or any of its Subsidiaries before any court,
governmental agency or arbitrator that (i) except as set forth in Schedule
4.01(b), could be reasonably likely to have a Material Adverse Effect or
purports to affect the legality, validity or enforceability of the Wake
Forest License Agreement or (ii) purports to affect the legality, validity or
enforceability of this Agreement, the other Loan Documents or the
consummation of the transactions contemplated hereby.
(c) Information Memorandum. Nothing shall have come to the attention of
the Lenders during the course of their due diligence investigation to lead
them to believe that the Information Memorandum was or has become misleading,
incorrect or incomplete in any material respect; without limiting the
generality of the foregoing, the Lenders shall have been given such access to
the management, records, books of account, contracts and properties of the
Borrower and its Subsidiaries as they shall have requested.
(d) Approvals and Consents. All governmental and third party consents
and approvals necessary in connection with the transactions contemplated
hereby shall have been obtained (without the imposition of any conditions
that are not acceptable to the Lenders) and shall remain in effect, and no
law or regulation shall be applicable in the reasonable judgment of the
Lenders that restrains, prevents or imposes materially adverse conditions
upon the transactions contemplated hereby.
(e) Fees. The Borrower shall have (i) paid the Fees as specified in
Section 2.08 (including the Fees specified in the Fee Letter) and (ii)
reimbursed the Administrative Agent for all reasonable fees, costs and
expenses of closing presented as of the Effective Date (including the accrued
fees and expenses of counsel to the Administrative Agent).
(f) Officer's Certificate. On the Effective Date, the following
statements shall be true and the Administrative Agent shall have received for
the account of each Lender a certificate signed by an Authorized Officer of
each Loan Party, dated the Effective Date, stating that:
(i) The representations and warranties contained each Loan Document
are correct on and as of the Effective Date, and
(ii) No event has occurred and is continuing that constitutes a
Default or Event of Default.
(g) Deliveries. The Administrative Agent shall have received on or
before the Effective Date the following, each dated such day, in form and
substance satisfactory to the Administrative Agent and (except for the Notes)
in sufficient copies for each Lender:
(i) Credit Agreement. The Administrative Agent (or its counsel)
shall have received from each party hereto either a counterpart of this
Agreement signed on behalf of such party.
(ii) Notes. Notes payable to the order of the applicable Lender, to
the extent requested by such Lender, pursuant to the terms of Section
2.22 (b).
(iii) Secretary's Certificate. The Administrative Agent shall have
received a certificate, dated the Effective Date, of the secretary or
assistant secretary or other analogous counterpart of each Loan Party:
(A) attaching a true and complete copy of the resolutions of its
Managing Person and of all other documents evidencing all
necessary corporate, partnership, company or other action (in
form and substance satisfactory to the Administrative Agent)
taken to authorize the Loan Documents to which it is a party
and the transactions contemplated thereby;
(B) attaching a true and complete copy of its Organizational
Documents;
(C) setting forth the incumbency of its officer or officers (or
other analogous counterpart) who may sign the Loan Documents,
including therein a signature specimen of such officer or
officers (or other analogous counterpart); and
(D) attaching a certificate of good standing of the secretary of
state of the jurisdiction of its formation and of each other
jurisdiction in which it is qualified to do business.
(iv) Subsidiary Guaranty Agreement. The Administrative Agent shall
have received counterparts of the Subsidiary Guaranty Agreement signed
on behalf of each of the Initial Guarantors.
(v) Intellectual Property Security Agreements. The Administrative
Agent shall have received counterparts of the (i) the Trademark Security
Agreement, (ii) the Copyright Security Agreement and (iii) the Patent
Security Agreement each of which shall be signed on behalf of each Loan
Party that owns trademarks, copyrights and/or patents, as the case may
be, all in form and substance satisfactory to Administrative Agent.
(vi) Pledge and Security Agreement. The Administrative Agent shall
have received counterparts of the Pledge and Security Agreement signed
on behalf of the Borrower and each Subsidiary Guarantor, together with
the following:
(A) any stock certificates or other instruments representing the
Pledged Equity owned by or on behalf of any Loan Party as of
the Effective Date;
(B) any promissory notes and other instruments evidencing the
Pledged Debt owed or owing to any Loan Party as of the
Effective Date and required to be delivered to the
Administrative Agent pursuant to the Pledge and Security
Agreement;
(C) stock powers and instruments of transfer, endorsed in blank,
with respect to such stock certificates, promissory notes and
other instruments;
(vii) Lien Searches. The Administrative Agent shall have received
searches of Uniform Commercial Code filings (or their equivalent) and
other filings (including filings with the Patent and Trademark Office)
in each jurisdiction where a filing has been or would need to be made in
order to perfect or give notice of the Administrative Agent's security
interest in the Collateral, copies of the financing statements on file
in such jurisdictions and evidence that no Liens (other than Liens
permitted by Section 6.02(b)) exist, or, if necessary, copies of proper
financing statements, if any, filed on or before the date hereof
necessary to terminate all security interests and other rights of any
Person in any Collateral previously granted.
(viii) Financing Statements. The Administrative Agent shall have
received duly authorized Uniform Commercial Code financing statements or
their equivalent, and any amendments thereto, for each appropriate
jurisdiction as is necessary, in Administrative Agent's sole discretion,
to perfect or give notice of the Administrative Agent's security
interest in the Collateral.
(ix) Wake Forest Documents. The Administrative Agent shall have
received (i) an executed copy of the Wake Forest Consent and (ii) a
certificate, dated the Effective Date, of an Authorized Officer of the
Borrower certifying that attached thereto is a true and correct copy of
the Wake Forest License Agreement.
(x) Legal Opinions. Favorable opinions of each of Xxx Xxxxx
Xxxxxxxx Incorporated, counsel to the Loan Parties, and Xxxxx Xxxx LLP,
New York counsel to the Loan Parties in form and substance reasonably
satisfactory to the Administrative Agent and its counsel, dated the date
hereof and addressed to Administrative Agent and Lenders.
(xi) Insurance Policies. Administrative Agent shall have received
an insurance certificate in form and substance satisfactory to
Administrative Agent with appropriate endorsements naming Administrative
Agent as loss payee and additional insured, as appropriate.
(xii) Refinancing. On the Effective Date, all Indebtedness under
the Existing Credit Agreement shall have been repaid in full (other than
the Existing Letters of Credit that are incorporated herein as Letters
of Credit) and all commitments in respect thereof shall have been
terminated and all Liens and guaranties in connection therewith shall
have been terminated (and all appropriate releases, termination
statements or other instruments of assignment with respect thereto shall
have been obtained) to the reasonable satisfaction of the Administrative
Agent. The Administrative Agent shall have received satisfactory
evidence (including satisfactory pay-off letters, mortgage releases,
intellectual property releases and UCC-3 termination statements) that
the matters set forth in the immediately preceding sentence have been
satisfied as of the Effective Date.
(xiii) Initial Notice of Borrowing. Duly executed counterparts of a
Notice of Borrowing, with respect to the initial Advance.
(xiv) Other Documents. Such other certificates, documents and
agreements as the Administrative Agent or its counsel may reasonably
request.
SECTION 4.02. Conditions Precedent to Each Borrowing. The Lenders
shall not be required to make, convert or continue any Advance nor shall the
Issuing Bank be required to issue any Letter of Credit, unless on the
applicable Credit Extension Date, both before and after giving effect to any
such Advance, conversion, continuation or Letter of Credit the following
statements shall be true:
(a) the representations and warranties contained in each Loan Document
are true and correct on and as of the date of such Borrowing (unless such
representation and warranty is made as of a specific date, in which case,
such representation and warranty shall be true and correct as of such date),
before and after giving effect to such Borrowing and to the application of
the proceeds therefrom, as though made on and as of such date, and
(b) (i) no event has occurred and is continuing, or would result from
such Borrowing or from the application of the proceeds therefrom, that
constitutes a Default or Event of Default; and (ii) the Administrative Agent
shall have received such other approvals, opinions or documents as any Lender
through the Administrative Agent may reasonably request.
Each Notice of Borrowing with respect to each Advance and the letter of
credit application with respect to each Letter of Credit shall constitute a
representation and warranty by the Borrower that the conditions in this
Section 4.02(a) and (b) have been satisfied.
SECTION 4.03. Determinations Under Section 4.01. For purposes of
determining compliance with the conditions specified in Section 4.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders
unless an officer of the Administrative Agent responsible for the
transactions contemplated by this Agreement shall have received notice from
such Lender prior to the date that the Borrower, by notice to the Lenders,
designates as the proposed Effective Date, specifying its objection thereto.
The Administrative Agent shall promptly notify the Lenders of the occurrence
of the Effective Date.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants to the Administrative Agent, the Issuing
Bank and each Lender as follows:
(a) Corporate Existence and Standing. The Borrower and each of its
Subsidiaries is a corporation, partnership, limited liability company or
other organization duly incorporated or organized, validly existing and in
good standing (to the extent such concept is applicable to such entity) under
the laws of its jurisdiction of incorporation or organization and has all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted and where the failure to be in good standing or
authorized to conduct business would have a Material Adverse Effect.
(b) Authorization, Validity and Enforceability. The Borrower and each
Subsidiary Guarantor has the corporate or other power and authority and legal
right to execute and deliver the Loan Documents to which it is a party and to
perform its obligations thereunder. The execution and delivery by the
Borrower and each Subsidiary Guarantor of the Loan Documents to which it is a
party and the performance of its obligations thereunder have been duly
authorized by proper corporate, partnership or limited liability company
proceedings and the Loan Documents to which it is a party constitute legal,
valid and binding obligations of such Person enforceable against such Person
in accordance with their terms, except as enforceability may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally. The Borrower and each other Loan Party has duly
executed and delivered each Loan Document to which it is a party.
(c) No Conflict; Consent. Neither the execution and delivery by the
Borrower and the Subsidiary Guarantors of the Loan Documents, nor the
consummation of the transactions therein contemplated, nor compliance with
the provisions thereof will violate any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Borrower or any of its
Subsidiaries or the Borrower's or any Subsidiary's Organizational Documents
or the provisions of any indenture, instrument or agreement to which the
Borrower or any of its Subsidiaries is a party or is subject, or by which it,
or its Property, is bound, or conflict with or constitute a default
thereunder, or result in the creation or imposition of any Lien (other than
any Lien permitted by Section 6.02(b)) in, of or on any Property of the
Borrower or a Subsidiary pursuant to the terms of any such indenture,
instrument or agreement, except for any such violation, conflict or default
as would not reasonably be expected to have a Material Adverse Effect. No
order, consent, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, any Governmental
Authority, or any other third party, 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, any of the Loan
Documents other than filings required to perfect the security interest
granted pursuant to the Collateral Documents.
(d) Financial Statements. The Consolidated balance sheet of the Borrower
and its Subsidiaries as at December 31, 2006, and the related Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries for
the fiscal year then ended, accompanied by an opinion of the Accountants, and
the Consolidated balance sheet of the Borrower and its Subsidiaries as at
March 31, 2007, and the related Consolidated statements of income and cash
flows of the Borrower and its Subsidiaries for the three months then ended,
duly certified by the Financial Officer of the Borrower, copies of which have
been furnished to each Lender, fairly present, subject, in the case of said
balance sheet as at March 31, 2007, and said statements of income and cash
flows for the three months then ended, to year-end audit adjustments, the
Consolidated financial condition of the Borrower and its Subsidiaries as at
such dates and the Consolidated results of the operations of the Borrower and
its Subsidiaries for the periods ended on such dates, all in accordance with
GAAP consistently applied.
(e) Material Adverse Change. Since December 31, 2006, there has been no
change in the business, condition (financial or otherwise), operations,
performance or Property of the Borrower and its Subsidiaries taken as a
whole, as reflected in the audited annual consolidated financial statements
of the Borrower and its Subsidiaries for the fiscal year ended on such date
described in Section 5.01(d), which has had or could reasonably be expected
to have a Material Adverse Effect.
(f) Litigation. There is no pending or, to Borrower's knowledge,
threatened, action, suit, investigation, litigation or proceeding affecting
the Borrower or any of its Subsidiaries before any court, governmental agency
or arbitrator that (i) except as set forth in Schedule 4.01(b), could be
reasonably likely to have a Material Adverse Effect or purports to affect the
legality, validity or enforceability of the Wake Forest License Agreement or
(ii) purports to affect the legality, validity or enforceability of this
Agreement, the other Loan Documents or the consummation of the transactions
contemplated hereby.
(g) Accuracy of Information. All information (taken as a whole)
heretofore or contemporaneously furnished by the Borrower or any of its
Subsidiaries to the Administrative Agent or any Lender (including, without
limitation, all information contained in the Loan Documents) for purposes of
or in connection with this Agreement or any transaction contemplated herein
is, and all other information (taken as a whole with all other such
information theretofore or contemporaneously furnished) hereafter furnished
by any such Persons to the Administrative Agent or any Lender will be true
and correct in all material respects on the date as of which such information
is provided or, if dated, and not incomplete by omitting to state any
material fact necessary to make such information (taken as a whole with all
other such information theretofore or contemporaneously furnished) not
misleading at such time in light of the circumstances under which such
information was provided. The Projections contained in such materials are
based on good faith estimates and assumptions believed by the Borrower to be
reasonable and attainable at the time made, it being recognized by the
Lenders that such Projections as to future events are not to be viewed as
facts and that actual results during the period or periods covered by any
such Projections may differ from the projected results.
(h) Solvency. Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(i) Investment Company Act. Neither the Borrower nor any Subsidiary of
the Borrower is, or after giving effect to any Borrowing will be, an
"investment company" or a company "controlled" by an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
(j) Margin Stock. The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying Margin Stock, and
no proceeds of any Advance will be used to purchase or carry any Margin Stock
or to extend credit to others for the purpose of purchasing or carrying any
Margin Stock.
(k) Environmental Matters. In the ordinary course of its business, the
Borrower considers the effect of Environmental Laws on the business of the
Borrower and its Subsidiaries, in the course of which it identifies and
evaluates potential risks and liabilities accruing to the Borrower due to
Environmental Laws. On the basis of this consideration, the Borrower has
concluded that the effect of the Environmental Laws on the business of the
Borrower cannot reasonably be expected to result in liability, individually
or in the aggregate, having a Material Adverse Effect. Neither the Borrower
nor any Subsidiary has received any notice to the effect that its operations
are not in material compliance with any of the requirements of applicable
Environmental Laws or are the subject of any federal or state investigation
evaluating whether any remedial action is needed to respond to a release of
any toxic or hazardous waste or substance into the environment, which
non-compliance or remedial action could reasonably be expected to result in
liability, individually or in the aggregate, having a Material Adverse
Effect.
(l) ERISA. No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan that has resulted or could reasonably be
expected to result in a liability to the Borrower or its ERISA Affiliates in
excess of $5,000,000.
(m) Withdrawal Liability. Neither the Borrower nor any of its ERISA
Affiliates has been notified by the sponsor of a Multiemployer Plan that it
has incurred any Withdrawal Liability, and neither the Borrower nor any of
its ERISA Affiliates, to the best of the Borrower's knowledge and belief, is
reasonably expected to incur any Withdrawal Liability to any Multiemployer
Plan, in each case other than any Withdrawal Liability that would not have a
Material Adverse Effect.
(n) Multiemployer Plans. Neither the Borrower nor any of its ERISA
Affiliates has been notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or has been terminated, within the
meaning of Title IV of ERISA, except where such reorganization or termination
would not have a Material Adverse Effect.
(o) Taxes. .........The Borrower and each of its Subsidiaries have
filed, have caused to be filed or have been included in all tax returns
(federal, state, local and foreign) required to be filed and have paid (or
have accrued any taxes shown that are not due with the filing of such
returns) all taxes shown thereon to be due, together with applicable interest
and penalties, except in any case where the failure to file any such return
or pay any such tax is not in any respect material to the Borrower or the
Borrower and its Subsidiaries taken as a whole.
(p) Compliance With Laws. The Borrower and its Subsidiaries have
complied with all applicable statutes, rules, regulations, orders and
restrictions of any domestic or foreign government or any instrumentality or
agency thereof having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property if failure to comply
therewith could reasonably be expected to have a Material Adverse Effect.
(q) Subsidiaries. Schedule 5.01(q) hereto contains an accurate list of
all Subsidiaries of the Borrower existing on the Effective Date, setting
forth their respective jurisdictions of incorporation and the percentage of
their respective Capital Stock owned by the Borrower or other Subsidiaries.
All of the issued and outstanding shares of Capital Stock of such
Subsidiaries have been duly authorized and issued and are fully paid and
non-assessable.
(r) Ownership of Properties. The Borrower and its Subsidiaries have good
title, free of all Liens other than those permitted by Section 6.02(b), to
all of the assets reflected in the Borrower's most recent consolidated
financial statements provided to the Administrative Agent as owned by the
Borrower and the Subsidiaries, except assets sold or otherwise transferred as
permitted under Section 6.02(f).
(s) Benefits. Each of the Borrower and its Subsidiaries will benefit
from the financing arrangement established by this Agreement. The
Administrative Agent and the Lenders have stated and acknowledge that, but
for the agreement by each of the Initial Guarantors to execute and deliver
the Subsidiary Guaranty Agreement or any other Subsidiary to execute and
deliver any Loan Document to which it is a party, the Administrative Agent
and the Lenders would not have made available the credit facilities
established hereby on the terms set forth herein.
(t) Real Property. Neither the Borrower nor any of its Domestic
Subsidiaries own a fee interest in any item of real Property with a fair
market value in excess of $10,000,000.
ARTICLE VI
COVENANTS OF THE BORROWER
SECTION 6.01. Affirmative Covenants. So long as any Advance or
interest thereon shall remain unpaid, any Letter of Credit shall remain
outstanding and unpaid, or any Lender shall have any Commitment hereunder,
the Borrower will and (except in the case of delivery of financial
information, reports and notices in respect of the Borrower) will cause its
Subsidiaries to:
(a) Compliance with Laws, Etc. Comply with all laws, rules, regulations
and orders of any Governmental Authority applicable to it or its property,
except where the failure to do so, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, before the same shall
become delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its Property and (ii) all lawful claims that,
if unpaid, might by law become a Lien upon its property; provided, however,
that neither the Borrower nor any of its Subsidiaries shall be required to
pay or discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings and as to which appropriate
reserves are being maintained, unless and until any Lien resulting therefrom
attaches to its property and becomes enforceable against its other creditors.
(c) Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies insurance on all Property in such amounts,
subject to such deductibles and self-insurance retentions, and covering such
Properties and risks as is consistent with sound business practice, and the
Borrower will furnish to any Lender upon reasonable request full information
as to the insurance carried. The Borrower shall deliver to the Administrative
Agent endorsements (y) to all "All Risk" physical damage insurance policies
on all of the Loan Parties' tangible, real and personal property and assets
and business interruption insurance policies naming the Administrative Agent
loss payee, and (z) to all general liability and other liability policies
naming the Administrative Agent an additional insured. In the event the
Borrower or any of its Subsidiaries at any time or times hereafter shall fail
to obtain or maintain any of the policies or insurance required herein or to
pay any premium in whole or in part relating thereto, then the Administrative
Agent, without waiving or releasing any obligations or resulting Default
hereunder, may at any time or times thereafter (but shall be under no
obligation to do so) obtain and maintain such policies of insurance and pay
such premiums and take any other action with respect thereto which the
Administrative Agent deems advisable. All sums so disbursed by the
Administrative Agent shall constitute part of the Obligations, payable as
provided in this Agreement.
(d) Preservation of Corporate Existence, Etc. Preserve and maintain its
corporate existence, rights (charter and statutory) and franchises; provided,
however, that the Borrower and its Subsidiaries may consummate any merger,
consolidation or dissolution permitted under Section 6.02(d) and provided
further that neither the Borrower nor any of its Subsidiaries shall be
required to preserve any right or franchise if the Managing Person of the
Borrower or such Subsidiary shall determine that the preservation thereof is
no longer desirable in the conduct of the business of the Borrower or such
Subsidiary, as the case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower, such Subsidiary or
the Lenders.
(e) Visitation Rights. Not more than once per calendar year, unless an
Event of Default exists, in which event at any reasonable time and from time
to time after reasonable notice to Borrower, permit the Administrative Agent
or any of the Lenders or any agents or representatives thereof, to examine
and make copies of and abstracts from the records and books of account of,
and visit the properties of, the Borrower and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep proper books of record and account, in which
full and correct entries shall be made of all financial transactions and the
assets and business of the Borrower and each such Subsidiary in accordance
with GAAP in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve all of its
properties that are used or useful in the conduct of its business in good
working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct all transactions otherwise
permitted under this Agreement with any of their Affiliates on terms that are
fair and reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a Person
not an Affiliate.
(i) Compliance with Environmental Laws. Comply, and cause all lessees
and other Persons operating or occupying its properties to comply, in all
material respects, with all applicable Environmental Laws and Environmental
Permits; obtain and renew all Environmental Permits necessary for its
operations and properties; and conduct, and cause each of its Subsidiaries to
conduct, any investigation, study, sampling and testing, and undertake any
cleanup, removal, remedial or other action necessary to remove and clean up
all Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to undertake any such
cleanup, removal, remedial or other action to the extent that its obligation
to do so is being contested in good faith and by proper proceedings and
appropriate reserves in accordance with GAAP are being maintained with
respect to such circumstances.
(j) Performance of Obligations. Pay and discharge when due all lawful
Indebtedness, obligations and claims for labor, materials and supplies or
otherwise which, if unpaid, might (i) have a Material Adverse Effect or (ii)
become a Lien upon Property of the Borrower or any of its Subsidiaries other
than a Lien permitted pursuant to Section 6.02(b), unless and to the extent
only that the validity of such Indebtedness, obligation or claim shall be
contested in good faith and by appropriate proceedings diligently conducted
and provided that the Borrower shall give the Administrative Agent prompt
notice of any such contest and that such reserve or other appropriate
provision as shall be required by the Accountants in accordance with GAAP
shall have been made therefor.
(k) Reporting Requirements. Furnish to the Administrative Agent and the
Lenders:
(i) Quarterly Reports. As soon as available and in any event within
45 days after the end of each of the first three quarters of each fiscal
year of the Borrower, the unaudited Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such quarter and the
unaudited Consolidated statements of income and cash flows 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,
setting forth in comparative form the corresponding figures for the
corresponding periods of the previous year, duly certified (subject to
normal year-end audit adjustments and the absence of footnotes) by the
Financial Officer of the Borrower as having been prepared in accordance
with GAAP.
(ii) Annual Reports. As soon as available and in any event within
90 days after the end of each fiscal year of the Borrower, a copy of the
annual audit report for such year for the Borrower and its Subsidiaries,
containing Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal year and Consolidated
statements of income and cash flows of the Borrower and its Subsidiaries
for such fiscal year, setting forth in comparative form the
corresponding figures for the corresponding periods of the previous
year, in each case accompanied by an opinion acceptable to the Required
Lenders by the Accountants, which opinion shall not be qualified as to
scope of audit or going concern.
(iii) Compliance Certificate. Concurrently with any delivery of
financial statements under Sections (i) and (ii) above, a certificate of
a Financial Officer of the Borrower (a "Compliance Certificate"),
substantially in the form of Exhibit I hereto, (A) certifying, among
other things set forth therein, as to whether a Default or Event of
Default has occurred and, if a Default or Event of Default has occurred,
specifying the details thereof and any action taken or proposed to be
taken with respect thereto, (B) setting forth reasonably detailed
calculations demonstrating compliance with the financial covenants set
forth in Section 6.03, (C) stating whether any change in GAAP or in the
application thereof has occurred since the date of the financial
statements referred to in Sections (i) and (ii) above and, if any such
change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate, (D) setting forth
the fair market value of each piece of real Property owned by any Loan
Party with a fair market value in excess of $10,000,000 and (E) setting
forth a list of any Intellectual Property owned by a Loan Party for
which any or all of the associated research and development has been
funded in whole and in part by a Foreign Subsidiary.
(iv) ERISA Information. If requested by the Administrative Agent,
within 180 days after the close of each fiscal year, (A) a statement of
the Unfunded Liabilities of each Benefit Plan, certified as correct by
an actuary enrolled under ERISA, and (B) such other financial
information regarding the Borrower's Plans as the Administrative Agent
may reasonably request, certified as prepared in accordance with
generally accepted actuarial principles and practices by an actuary
enrolled under ERISA, as well as financial information regarding any
Foreign Plans, certified as prepared in accordance with locally accepted
actuarial principles and practices by a locally qualified actuary;
(v) Termination Event. As soon as possible and in any event within
ten days after the Borrower knows that any Termination Event has
occurred, a statement, signed by an Authorized Officer of the Borrower,
describing such Termination Event and the action which the Borrower
proposes to take with respect thereto;
(vi) Environmental. As soon as possible and in any event within 15
days after receipt by the Borrower, a copy of (A) any notice or claim to
the effect that the Borrower or any of its Subsidiaries is or may be
liable to any Person as a result of the release by the Borrower, any of
its Subsidiaries, or any other Person of any toxic or hazardous waste or
substance into the environment and (B) any notice alleging any violation
of any Environmental Law by the Borrower or any of its Subsidiaries,
which, in either case, could reasonably be expected to have a Material
Adverse Effect.
(vii) Shareholder Information. Promptly upon the furnishing thereof
to the shareholders of the Borrower, copies of all financial statements,
reports and proxy statements so furnished;
(viii) Public Filings. Promptly upon the filing thereof, copies of
all registration statements, current reports and annual, quarterly, or
other regular reports which the Borrower files with the Commission,
including, without limitation, all reports on Form 10-K, 10-Q and 8-K
and all certifications and other filings required by Section 302 and
Section 906 of the Xxxxxxxx-Xxxxx Act of 2002, as amended, and all rules
and regulations related thereto;
(ix) Notice of Corporate and other Changes. Simultaneously with the
delivery of the financial statements referred to in paragraphs (i) and
(ii) above, provide written notice, of (A) any change after the
Effective Date in the authorized and issued Capital Stock of any Loan
Party (other than the Borrower) or any Subsidiary of any Loan Party and
(B) any Subsidiary created or acquired by any Loan Party or any of its
Subsidiaries after the Effective Date and (C) all jurisdictions in which
a Loan Party becomes qualified to transact business during the fiscal
quarter for which such financial statements relate, such notice, in each
case, to identify the applicable capital structures, Subsidiaries or
jurisdictions, as applicable; provided, however, that if the occurrence
of any of the events described in clause (A) or (B) above would result
in the establishment of a Material Domestic Subsidiary, then written
notice of such event shall be provided to the Administrative Agent
within thirty (30) days of the occurrence of such event. The foregoing
notice requirement shall not be construed to constitute consent by any
of the Lenders to any transaction referred to above which is not
expressly permitted by the terms of this Agreement.
(x) Notices Regarding Wake Forest License Agreement. Provide prompt
written notice of, and copies of relevant documents relating to, (A) any
material amendment to the Wake Forest License Agreement, (B) any notice
from Wake Forest of any default with respect to the Wake Forest License
Agreement, (C) any termination notice from Wake Forest with respect to
the Wake Forest License Agreement and (D) any litigation or threatened
litigation with respect to the Wake Forest License Agreement or any of
the patents or other intellectual property related thereto.
(xi) Other Information. Provide such other information (including
non-financial information) as the Administrative Agent or any Lender may
from time to time reasonably request.
Notwithstanding anything to the contrary, the Borrower shall be deemed
to have complied with the delivery requirements under clauses (i), (ii),
(viii) and (ix) of this Section 6.01(k) by providing notification (which
may be in electronic format) to the Lenders that the required documents
are publicly available through the Borrower's web site or other publicly
available electronic medium and providing the hyperlink or appropriate
other locational information for obtaining such information.
(l) Use of Proceeds. Use the proceeds of the Advances to (i) finance
Acquisitions permitted by this Agreement, (ii) finance the Refinancing, (iii)
pay the fees and expenses incurred in connection with the Transaction and
(iv) for working capital and other general corporate purposes of the Borrower
and its Subsidiaries.
(m) Guaranty Documentation.
(i) On the Effective Date, cause each of the Initial Guarantors and
each of its other Domestic Subsidiaries that are Material Subsidiaries
to execute and deliver the Subsidiary Guaranty Agreement in order for
each such Person to provide an unconditional guaranty of the Secured
Obligations.
(ii) Cause each Person that constitutes a Material Domestic
Subsidiary of the Borrower after the Effective Date (whether by virtue
of the consummation of an Acquisition, any corporate reorganization or
otherwise) to execute and deliver to the Administrative Agent, as
promptly as possible, but in any event within thirty (30) days (or such
later date as is agreed to by the Administrative Agent) after such
qualification, (x) an executed supplement to become a Subsidiary
Guarantor under the Subsidiary Guaranty Agreement in the form attached
thereto, (y) the Collateral Documents required to be delivered by such
Person pursuant to Section 6.01(n) and (z) resolutions, officer's
certificates, opinions of counsel and such other authorizing
documentation as the Administrative Agent may reasonably request, all in
form and substance reasonably satisfactory to the Administrative Agent.
Following the date upon which any such Subsidiary Guarantor (other than
the Initial Guarantors) no longer constitutes a Material Subsidiary, the
Administrative Agent shall be authorized to, and shall upon the written
request of the Borrower promptly, execute and deliver to the Borrower
such documentation as the Borrower may reasonably request in order to
release such Subsidiary Guarantor from the Guaranty; provided, however,
that if at any time after such release, such Domestic Subsidiary shall
constitute again a Material Subsidiary, the Borrower will cause such
Domestic Subsidiary to promptly comply with the requirements of this
Section 6.01(m).
(n) Collateral Documentation. With respect to any owned Property that is
intended to be subject to the Lien created by the Collateral Documents,
require each Subsidiary Guarantor to execute such instruments necessary to
create a perfected security interest in favor of the Administrative Agent for
the benefit of the Holders of Secured Obligations to secure the Secured
Obligations in accordance with the terms and conditions of the Collateral
Documents, subject in any case only to Liens permitted by Section 6.02(b)
hereof and to the delivery of such documentation following the Effective Date
as the Borrower and the Administrative Agent shall agree in writing.
Following the date upon which any such Subsidiary Guarantor (other than the
initial Guarantors) no longer constitutes a Material Subsidiary and the
Administrative Agent shall have received satisfactory evidence thereof, the
Administrative Agent shall be authorized to, and shall promptly, execute and
deliver to, the Borrower such documentation as the Borrower may reasonably
request in order to release such Subsidiary Guarantor from the Collateral
Documents; provided, however, that if at any time after such release, such
Domestic Subsidiary shall constitute again a Material Subsidiary, the
Borrower will cause such Domestic Subsidiary to promptly comply with the
requirements of this Section 6.01(n).
Without limiting the generality of the foregoing, the Borrower will
(i) cause the Applicable Pledge Percentage of the issued and outstanding
Capital Stock of each Domestic Subsidiary directly owned by the Borrower or
any other Loan Party to be subject at all times to a first priority,
perfected security interest in favor of the Administrative Agent to secure
the Secured Obligations in accordance with the terms and conditions of the
Collateral Documents or such other security documents as the Administrative
Agent shall reasonably request and (ii) will, and will cause each Subsidiary
Guarantor to, deliver reasonably promptly Mortgages and Mortgage Instruments
with respect to each item of real Property owned by the Borrower or such
Subsidiary Guarantor with a fair market value in excess of $10,000,000.
SECTION 6.02. Negative Covenants. So long as any Advance or any
interest thereon shall remain unpaid, any Letter of Credit shall remain
outstanding and unpaid, or any Lender shall have any Commitment hereunder,
the Borrower will not and will not permit its Subsidiaries to, directly or
indirectly:
(a) Limitation on Indebtedness. Create, incur, assume or suffer to exist
any Indebtedness, except for Permitted Indebtedness and the existing
Indebtedness described on Schedule 6.02(a) hereto so long as (x) no Default
or Event of Default shall have occurred and be continuing at the time of the
incurrence of such Permitted Indebtedness or would result from the incurrence
of such Permitted Indebtedness and (y) after giving effect to the incurrence
of such Permitted Indebtedness, on a pro forma basis as if such incurrence of
such Permitted Indebtedness had occurred on the first day of the twelve-month
period ending on the last day of the Borrower's most recently completed
fiscal quarter, the Borrower shall be in compliance with the financial
covenants set forth in Section 6.03.
(b) Liens, Etc. Create or suffer to exist any Lien on or with respect to
any of its properties, whether now owned or hereafter acquired, or assign,
any right to receive income, other than:
(i) Permitted Liens;
(ii) purchase money Liens upon or in any real property or equipment
acquired or held by the Borrower or any Subsidiary in the ordinary
course of business to secure the purchase price of such property or
equipment or to secure Indebtedness incurred solely for the purpose of
financing the acquisition of such property or equipment, or Liens
existing on such property or equipment at the time of its acquisition or
extensions, renewals or replacements of any of the foregoing, provided,
however, that no such Lien shall extend to or cover any properties of
any character other than the real property or equipment being acquired,
and no such extension, renewal or replacement shall extend to or cover
any properties not theretofore subject to the Lien being extended,
renewed or replaced;
(iii) the Liens existing on the Effective Date and described on
Schedule 6.02(b) hereto;
(iv) Liens (not otherwise permitted hereunder) which secure
Indebtedness not exceeding (as to the Borrower and all Subsidiaries)
$60,000,000 in aggregate amount at any time outstanding, provided that
no such Lien may encumber any of the Collateral;
(v) the replacement, extension or renewal of any Lien permitted by
clause (iii) or (iv) above upon or in the same property theretofore
subject thereto or the replacement, extension or renewal (without
increase in the amount or change in any direct or contingent obligor) of
the Indebtedness secured thereby;
(vi) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety
and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(vii) Liens on the property or assets (including proceeds thereof)
of a Person which becomes a Subsidiary after the date hereof securing
Indebtedness permitted by Section 6.02(a), provided that (i) such Liens
existed at the time such Person became a Subsidiary and were not created
in anticipation thereof, (ii) any such Lien is not spread to cover any
property or assets of such Person after the time such Person becomes a
Subsidiary, and (iii) the principal amount of Indebtedness secured
thereby is not increased;
(viii) Liens created pursuant to the Collateral Documents;
(ix) any interest or title of a lessor under any Financing Lease,
provided that such Liens do not extend to any property or assets which
are not leased property subject to such Financing Lease;
(x) any Lien resulting from any transaction permitted under Section
6.02(j);
(xi) Liens securing Indebtedness under any Hedging Arrangement, in
each case entered into with a Person that was at the time of entering
into such Hedging Arrangement, a Lender or an Affiliate of a Lender and
such Indebtedness is otherwise permitted hereunder;
(xii) Liens on assets of a Subsidiary in favor of the Borrower or a
Subsidiary Guarantor;
(xiii) Liens arising in the ordinary course of business by virtue
of any contractual, statutory or common law provision relating to
banker's Liens, rights of set-off or similar rights and remedies
covering deposit or securities accounts (including funds or other assets
credited thereto) or other funds maintained with a depository
institution or securities intermediary;
(xiv) Liens arising out of judgments or awards not resulting in an
Event of Default, provided that, the Borrower or such Subsidiary, as
applicable, shall in good faith be prosecuting an appeal or proceedings
for review;
(xv) Liens on any escrow account wherein funds or other assets have
been deposited to redeem the Existing Senior Subordinated Notes;
(xvi) Liens on assets of any Foreign Subsidiary securing
Indebtedness of such Foreign Subsidiary permitted by Section 6.02(a);
(xvii) exceptions to title set forth in the title policy
corresponding to any Mortgages; and
(xviii) restrictions on transfers of securities imposed by
applicable securities laws.
(c) [Intentionally Omitted]
(d) Limitation on Fundamental Changes. Without limiting the provisions
of Section 6.02(g), dissolve, windup or merge or consolidate with or into any
other Person, except that:
(i) any Subsidiary may merge or consolidate with the Borrower
(provided, that the Borrower shall be the surviving corporation) or with
one or more other Subsidiaries (provided, that in the case of any such
merger or consolidation involving any Subsidiary Guarantor, the
surviving entity shall be a Subsidiary Guarantor);
(ii) the Borrower may merge or consolidate with any other entity;
provided, that the Borrower shall be the surviving corporation and that
after giving effect thereto no Default or Event of Default shall exist
and be continuing and provided, further, that upon the request of the
Administrative Agent, the Borrower shall deliver favorable legal
opinions in form and substance reasonably satisfactory to the
Administrative Agent and its counsel;
(iii) any Subsidiary may sell or transfer its property, business or
assets in a transaction permitted by Section 6.02(f); and
(iv) any Subsidiary other than a Loan Party may be dissolved if the
Managing Person of such Subsidiary shall determine in good faith that
the preservation of such Subsidiary is no longer desirable in the
conduct of the business of the Borrower and its Subsidiaries, taken as a
whole.
(e) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies or
reporting practices, except as required or permitted by GAAP.
(f) Limitation on Sale of Assets. Convey, sell, lease, assign, transfer
or otherwise dispose of any of its property, business or assets (including,
without limitation, receivables and leasehold interests), whether now owned
or hereafter acquired, or, in the case of any Subsidiary, issue or sell any
shares of such Subsidiary's Capital Stock to any Person other than the
Borrower or any wholly owned Subsidiary, except:
(i) the sale or other disposition of obsolete or worn out property
in the ordinary course of business;
(ii) the sale or lease of inventory in the ordinary course of
business;
(iii) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the
compromise or collection thereof;
(iv) dispositions resulting from any Casualty Event;
(v) as permitted by Section 6.02(d) or in the nature of Investments
permitted by Section 6.02(g) in respect of joint ventures;
(vi) asset sales in connection with transactions permitted under
Section 6.02(j);
(vii) the lease of real property in the ordinary course of business
and consistent with past practice; and
(viii) sales of assets for fair market value by the Borrower and
its Subsidiaries not otherwise permitted under this Section, provided
that the aggregate proceeds of such sales of assets do not exceed ten
percent (10%) of the of the Borrower's Consolidated Assets as of the end
of the fiscal year immediately preceding any such asset sale consummated
after the Effective Date.
(g) Limitation on Investments, Loans and Advances. Make any advance,
loan, extension of credit or capital contribution to, or purchase any stock,
bonds, notes, debentures or other securities of or any assets constituting a
business unit of, or make any other investment in, any other Person (an
"Investment"), except:
(i) extensions of trade credit in the ordinary course of business;
(ii) Cash Equivalent Investments;
(iii) loans and advances to employees of the Borrower or its
Subsidiaries for travel, entertainment and relocation expenses; provided
that such loans and advances are in compliance with applicable laws;
(iv) (A) Investments by the Borrower in any Subsidiary Guarantor
and by any Subsidiary Guarantor in the Borrower or in any other
Subsidiary Guarantor, (B) Investments by Subsidiaries that are not
Subsidiary Guarantors in the Borrower and in any Subsidiary Guarantor,
(C) Investments by the Borrower or the Subsidiary Guarantors in
Subsidiaries that are not Guarantors, including Investments permitted
under clause (i) of the definition of "Permitted Indebtedness", in an
aggregate amount not to exceed $75,000,000 from and after Effective Date
and (D) Investments by any Subsidiary that is not a Subsidiary Guarantor
in any Subsidiaries that are not Subsidiary Guarantors including,
without limitation, Investments permitted under clause (j)(iii) of the
definition of "Permitted Indebtedness"; provided, that the conversion of
any Indebtedness owed to the Borrower or any Subsidiary Guarantor by any
Subsidiary into equity of such Subsidiary shall not constitute an
additional Investment in such Subsidiary by the Borrower or such
Subsidiary Guarantor for purposes of the limitation contained in the
immediately preceding clause (C);
(v) Hedging Arrangements;
(vi) loans by the Borrower or its Subsidiaries to their employees
in connection with management incentive plans;
(vii) Investments in securities of trade creditors or customers
received pursuant to any plan of reorganization or similar arrangement
upon the bankruptcy or insolvency of such trade creditors or customers;
(viii) Investments made by the Borrower or any of its Subsidiaries
as a result of consideration received in connection with a sale of
assets permitted under Section 6.02(f);
(ix) Acquisitions; provided that after giving effect to any
Acquisition, the Advance Availability will be at least $50,000,000;
(x) the existing Investments described in Schedule 6.02(g).
(xi) Convertible Note Hedge Transactions in connection with the
issuance of convertible Indebtedness permitted hereunder; and
(xii) other Investments (not otherwise permitted hereunder) in an
aggregate amount not to exceed $100,000,000 at any one time outstanding.
(h) Limitation on Optional Payments of Subordinated Debt. Make (or give
any notice in respect of) any voluntary or optional payment or prepayment on
or redemption, repurchase or acquisition for value of any Subordinated Debt
(other than in connection with any refinancing thereof) except:
(i) the redemption or repurchase of the Existing Senior
Subordinated Notes; and
(ii) the redemption or repurchase of additional Subordinated Debt
(other than the Existing Senior Subordinated Notes) if, after giving
effect to such redemption or repurchase, on a pro forma basis as if such
repurchase or redemption had occurred on the first day of the
twelve-month period ending on the last day of the Borrower's most
recently completed fiscal quarter, the Leverage Ratio shall be less than
or equal to 3.00 to 1.00; provided, that if the Leverage Ratio,
determined on a pro forma basis as if such redemption or repurchase had
occurred on the first day of the twelve-month period ending on the last
day of the Borrower's most recently completed fiscal quarter, shall
exceed 3.00 to 1.00 (for purposes of this clause (ii), such event, an
"Excess Leverage Ratio Event"), the aggregate amount of such redemption
or repurchase from and after the occurrence of such Excess Leverage
Ratio Event shall not exceed $100,000,000 plus the amount of proceeds
received by the Borrower from the issuance of any Capital Stock and
applied to redeem or repurchase such Subordinated Debt until such time
as the Leverage Ratio has been restored to less than or equal to 3.00 to
1.00.
(i) Limitation on Transactions with Affiliates. Except for (i)
transactions permitted under Sections 6.02(a), 6.02(b), 6.02(d), 6.02(f),
6.02(g) and 6.02(h), (ii) the payment of customary directors' fees,
indemnification and reimbursement of expenses to directors and customary
indemnification and reimbursement of expenses to officers and (ii) the
issuance of stock and stock options pursuant to the Borrower's stock option
plans and stock purchase plans, enter into any transaction, including,
without limitation, any purchase, sale, lease or exchange of property or the
rendering of any service, with any Affiliate unless such transaction is (A)
otherwise permitted under this Agreement and (B) upon fair and reasonable
terms no less favorable to the Borrower or such Subsidiary, as the case may
be, than it would obtain in a comparable arm's length transaction with a
Person which is not an Affiliate. Notwithstanding the foregoing, the Borrower
and its Subsidiaries shall be permitted to undertake the Transaction as
contemplated herein.
(j) Limitation on Sales and Leasebacks. Enter into any arrangement with
any Person providing for the leasing by the Borrower or any Subsidiary of
Property which has been or is to be sold or transferred by the Borrower or
such Subsidiary to such Person or to any other Person to whom funds have been
or are to be advanced by such Person on the security of such Property or
rental obligations of the Borrower or such Subsidiary, except for any sale
and leaseback as to which the sale is permitted pursuant to Section
6.02(f)(viii).
(k) Limitation on Negative Pledge Clauses. Subject to Section 6.02(v),
enter into with any Person any financing agreement, other than purchase money
mortgages or Financing Leases permitted by this Agreement (in which cases,
any prohibition or limitation shall only be effective against the assets
financed thereby), which prohibits or limits the ability of the Borrower or
any of its Subsidiaries to create, incur, assume or suffer to exist any Lien
upon any of its property, assets or revenues, whether now owned or hereafter
acquired to secure the obligations of the Borrower and its Subsidiaries under
the Loan Documents or the obligations of the Borrower and its Subsidiaries
under any other document relating to any refinancing, refunding, renewal or
extension of this Agreement or any amendment, restatement or other
modification of any of the Loan Documents; provided further notwithstanding
the foregoing, but subject to Section 6.02(v), a negative pledge shall be
permitted with respect to assets not encumbered by the Liens of the
Administrative Agent in connection with the incurrence of other Indebtedness.
(l) Limitation on Changes in Fiscal Year. Permit the fiscal year of the
Borrower to end on a day other than December 31 in any calendar year.
(m) Limitation on Lines of Business. Enter into any business, either
directly or through any Subsidiary, except for those businesses which are in
the same, similar or reasonably related or complementary businesses as the
businesses in which the Borrower and its Subsidiaries are engaged on the date
of this Agreement or which are directly related thereto (including, without
limitation, ownership of interests in trusts which own certain aircraft).
(n) Limitation on Subsidiary Distributions. Enter into or suffer to
exist or become effective any consensual encumbrance or restriction on the
ability of any Subsidiary to (i) pay dividends or make any other
distributions in respect of any Capital Stock of such Subsidiary held by, or
pay any Indebtedness owed to, the Borrower or any other Subsidiary of the
Borrower, (ii) make loans or advances to the Borrower or any other Subsidiary
of the Borrower or (iii) transfer any of its assets to the Borrower or any
other Subsidiary of the Borrower; except for (A) in the case of clause (i)
above, Liens on the Capital Stock of Subsidiaries permitted hereunder, (B)
such encumbrances or restrictions existing under or by reason of any
restrictions existing under the Loan Documents or the Existing Senior
Subordinated Note Indenture and any other notes, agreements, guaranties and
documents executed and delivered in connection with the foregoing, (C)
restrictions in Indebtedness incurred by Foreign Subsidiaries permitted to be
incurred hereunder, which shall be applicable only to such Foreign Subsidiary
and its Subsidiaries, and (D) in the case of clause (iii) above, customary
provisions in leases, sales agreements, joint venture agreements and other
contracts restricting the assignment thereof.
(o) Chief Executive Office. Move its chief executive office and the
office at which it maintains its records relating to the transactions
contemplated by this Agreement and the Collateral Documents or change its
state of organization unless (i) not less than 45 days' prior written notice
of its intention to do so, clearly describing the new location or state,
shall have been given to the Administrative Agent and each Lender and (ii)
such action, reasonably satisfactory to the Administrative Agent and each
Lender to maintain any security interest in the property subject to the
Collateral Documents at all times fully perfected and in full force and
effect shall have been taken.
(p) Limitations on Activities of Special Purpose Subsidiaries. Permit
KCI International or KCII to amend the provisions of KCI International's
certificate of incorporation or KCII's operating agreement that restrict the
ability of KCI International and KCII to incur Indebtedness, Guarantee
Obligations or Liens, conduct any business other than holding Capital Stock
of Subsidiaries of the Borrower or merging or consolidating with any other
Person unless the governing documents of the survivor of such merger or
consolidation contain similar restrictions.
(q) Hedging Obligations. The Borrower will not, nor will it permit any
Subsidiary to, enter into any Hedging Arrangement other than:
(i) Hedging Arrangements entered into by the Borrower or any such
Subsidiary pursuant to which the Borrower or such Subsidiary has hedged
its reasonably estimated interest rate, foreign currency or commodity
exposure and which are non-speculative in nature; and
(ii) Convertible Note Hedge Transactions to the extent permitted
hereunder.
(r) Margin Regulations. Use all or any portion of the proceeds of any
credit extended under this Agreement to purchase or carry Margin Stock.
(s) Restricted Payments. Declare or pay any dividend on, or make any
payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any shares of any class of Capital Stock of the Borrower or
any warrants or options to purchase any such Capital Stock, whether now or
hereafter outstanding or make any other distribution in respect thereof,
either directly or indirectly, whether in cash or property or in obligations
of the Borrower or any Subsidiary; except
(i) the payment of dividends on any Capital Stock of the Borrower,
if, after giving effect to such payment, on a pro forma basis as if such
payment had occurred on the first day of the twelve-month period ending
on the last day of the Borrower's most recently completed fiscal
quarter, the Leverage Ratio shall be less than or equal to 3.00 to 1.00;
(ii) the payment of interest on, the repurchase or redemption of
(whether in connection with a transaction of the type described in
Section 6.02(d), a delisting of the Borrower's Capital Stock, any
similar event or otherwise), or the payment of cash or delivery of
Capital Stock of the Borrower upon conversion of, in each case,
convertible Indebtedness issued by the Borrower;
(iii) the repurchase of issued and outstanding Capital Stock of the
Borrower if, after giving effect to such payment, on a pro forma basis
as if such payment had occurred on the first day of the twelve-month
period ending on the last day of the Borrower's most recently completed
fiscal quarter, the Leverage Ratio shall be less than or equal to 3.00
to 1.00; provided, that if the Leverage Ratio, determined on a pro forma
basis as if such payment had occurred on the first day of the
twelve-month period ending on the last day of the Borrower's most
recently completed fiscal quarter, shall exceed 3.00 to 1.00 (for
purposes of this clause (iii), such event, an "Excess Leverage Ratio
Event"), the Borrower shall be permitted to repurchase its Capital Stock
in an aggregate purchase price amount for all such repurchases from and
after the occurrence of such Excess Leverage Ratio Event not to exceed
$300,000,000 until such time as the Leverage Ratio has been restored to
less than or equal to 3.00 to 1.00; and
(iv) any delivery or payment in connection with, or as part of, the
termination or settlement of a Warrant Transaction.
(t) Wake Forest License Agreement. Amend or agree to amend the Wake
Forest License Agreement in any manner which would be adverse, taken as a
whole, to the interest of the Lenders.
(u) Sublicensing of Wake Forest License Agreement. Enter into any
agreement or instrument, nor permit any of its Subsidiaries to do so,
pursuant to which any of the rights granted under the Wake Forest License
Agreement is assigned, sublicensed or transferred to any Person, except that
Borrower or its Subsidiaries may enter into such agreements or instruments
with any of their wholly owned Subsidiaries in connection with the
transaction permitted under Section 6.04 if copies of such agreements or
instruments shall have been delivered to the Administrative Agent.
(v) Negative Pledge. Enter into any agreement or instrument, nor permit
any of its Subsidiaries to do so, pursuant to which it or such Subsidiary
creates, incurs or suffers to exist a Lien upon (i) any of its rights or
interest in, to or under the Wake Forest License Agreement, including any
sublicense agreement thereof or (ii) any Capital Stock of any Subsidiary of
the Borrower that has rights to or interests in, to or under the Wake Forest
License Agreement, including pursuant to any sublicense agreement, except any
Lien in favor of the Administrative Agent for the benefit of the Lenders.
SECTION 6.03. Financial Covenants. So long as any Advance or
interest thereon shall remain unpaid or any Lender shall have any Commitment
hereunder or any Letter of Credit remains outstanding and unpaid, the
Borrower will not:
(a) Leverage Ratio. Permit its Leverage Ratio, calculated on a
Consolidated basis for the Borrower and its Subsidiaries, to be greater than
4.00 to 1.00 on the last day of any fiscal quarter.
(b) Interest Coverage Ratio. Permit its Interest Coverage Ratio,
calculated on a Consolidated basis for the Borrower and its Subsidiaries, to
be less than 2.50 to 1.00 on the last day of any fiscal quarter.
SECTION 6.04. Offshore Transaction. Notwithstanding anything
contained in this Agreement to the contrary, Administrative Agent and Lenders
consent to the following proposed restructuring (the "Irish Restructuring"),
with such non-material modifications thereto as Borrower may reasonably deem
advisable:
(a) As part of the Irish Restructuring, Borrower will first undertake
certain steps to simplify its existing corporate structure. Specifically,
European Medical Distributors LP ("EMD"), International Medical Distributors
LP ("IMD"), both limited partnerships under the laws of the Cayman Islands,
will be contributed to an indirect wholly-owned Subsidiary of the Borrower
which shall be a newly-formed Irish entity resident in the Cayman Islands
("Newco"). After such contribution, EMD, IMD and KCI VOF International, a
general partnership created under the laws of the Cayman Islands and
wholly-owned by EMD and IMD, will cease to exist by operation of law. As a
result, all the assets and liabilities of EMD, IMD and KCI VOF International
will be owned by Newco.
(b) Thereafter, the Restructuring will continue with the movement of KCI
USA, Inc.'s manufacturing operations from the United States to Ireland and a
centralization of certain intellectual property rights in Newco. To implement
this portion of the Restructuring, Newco has formed, or will form, two new
entities, Medical Holdings Limited, a company created, or to be created,
under the laws of Malta, and KCI Medical Holdings Unlimited, a company
created, or to be created, under the laws of the Cayman Islands, the
ownership interest of which entities will be wholly-owned by Newco. These two
entities together have formed, or will form, KCI Manufacturing, a company
created, or to be created, under the laws of Ireland. KCI Licensing Inc. will
license and sublicense, as appropriate, to Newco certain of its intellectual
property relating to Borrower and its Subsidiaries' VAC product line. Newco
will then sublicense the intellectual property to Medical Holdings Limited,
who in turn will sublicense the intellectual property to KCI Manufacturing so
that KCI Manufacturing can use the intellectual property in its manufacture
of VAC products. KCI Manufacturing will manufacture VAC products, and will
sell those products to various distribution entities that are or will be
Subsidiaries of Borrower. Newco will subsequently conduct or fund all
research and development activities formerly conducted by Borrower (or its
U.S. Subsidiaries).
ARTICLE VII
EVENTS OF DEFAULT
SECTION 7.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) Payment. The Borrower shall fail to pay any principal of any Advance
or Letter of Credit Loan when the same becomes due and payable; or the
Borrower shall fail to pay any interest on any Advance or make any other
payment of fees or other amounts payable under this Agreement or any other
Loan Document within three (3) Business Days after the same becomes due and
payable; or
(b) Breach of Warranty. Any representation or warranty made by any Loan
Party herein or in any other Loan Document shall prove to have been incorrect
in any material respect when made; or
(c) Breach of Certain Provisions. (i) The Borrower shall fail to perform
or observe any term, covenant or agreement contained in Section 6.02 or
Section 6.03 hereof or (ii) the Borrower or any other Loan Party shall fail
to perform or observe any other term, covenant or agreement contained in this
Agreement or any other Loan Document on its part to be performed or observed
if such failure shall remain unremedied for thirty (30) days after written
notice thereof shall have been given to the Borrower by the Administrative
Agent or any Lender; or
(d) Default in Other Agreements. The Borrower or any of its Subsidiaries
shall fail to pay any principal of or premium or interest on any Indebtedness
that is outstanding in a principal or notional amount of at least $50,000,000
in the aggregate (but excluding Indebtedness outstanding hereunder) of the
Borrower or such Subsidiary (as the case may be), when the same becomes due
and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
relating to such Indebtedness; or any other event shall occur or condition
shall exist under any agreement or instrument relating to any such
Indebtedness and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Indebtedness; or any such Indebtedness shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a regularly
scheduled required prepayment or redemption), purchased or defeased, or an
offer to prepay, redeem, purchase or defease such Indebtedness shall be
required to be made, in each case prior to the stated maturity thereof; or
(e) Bankruptcy; Appointment of Receiver; Etc. The Borrower or any of its
Subsidiaries shall generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts generally, or shall
make a general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against the Borrower or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or
other similar official for it or for any substantial part of its property
and, in the case of any such proceeding instituted against it (but not
instituted by it), either such proceeding shall remain undismissed or
unstayed for a period of 30 days, or any of the actions sought in such
proceeding (including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property) shall
occur; or the Borrower or any of its Subsidiaries shall take any action to
authorize any of the actions set forth above in this Section 7.01(e); or
(f) Judgments. Judgments or orders for the payment of money in excess of
$50,000,000 in the aggregate shall be rendered against the Borrower or any of
its Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there shall be
any period of 10 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be
in effect; provided, however, that any such judgment or order shall not be an
Event of Default under this Section 7.01(f) if and for so long as (i) the
amount of such judgment or order is covered by a valid and binding policy of
insurance between the defendant and the insurer covering payment thereof and
(ii) such insurer, which shall be rated at least "A" by A.M. Best Company,
has been notified of, and has not disputed the claim made for payment of, the
amount of such judgment or order; or
(g) Change of Control. A Change of Control shall occur; or
(h) ERISA. The Borrower or any of its ERISA Affiliates shall incur, or
shall be reasonably likely to incur liability in excess of $50,000,000 in the
aggregate as a result of one or more of the following: (i) the occurrence of
any ERISA Event; (ii) the partial or complete withdrawal of the Borrower or
any of its ERISA Affiliates from a Multiemployer Plan; or (iii) the
reorganization or termination of a Multiemployer Plan; or
(i) Collateral. (i) Any Collateral Documents shall for any reason fail
to create a valid security interest, subject only to the liens permitted by
Section 6.02(b), in any Collateral purported to be covered thereby or (ii)
the Administrative Agent shall fail to have a valid and perfected first
priority security interest, subject only to the liens permitted by Section
6.02(b), in the Collateral with respect to which steps have been taken or are
required to be taken under the Transaction Documents to perfect such security
interest, which failure is not remedied within ten (10) days after the
earlier of (x) the date on which any Authorized Officer has actual knowledge
thereof and (y) the receipt by Borrower of written notice from the
Administrative Agent or the Required Lenders; or
(j) Enforceability. Any Loan Document shall fail to remain in full force
or effect against any Loan Party or any action shall be taken or shall fail
to be taken to discontinue or to assert the invalidity or unenforceability
of, or which results in the discontinuation or invalidity or unenforceability
of, any Loan Document;
(k) Termination of Wake Forest License Agreement. The Wake Forest
License Agreement shall be terminated or fail to remain in full force or
effect.
then, and in any such event, the Administrative Agent (i) shall at the
request, or may with the express consent, of the Required Lenders, by notice
to the Borrower, declare the obligation of each Lender to make Advances and
of the Issuing Bank to issue Letters of Credit to be terminated, whereupon
the same shall forthwith terminate, and (ii) shall at the request, or may
with the express consent, of the Required Lenders, by notice to the Borrower,
declare the Advances, all interest thereon and all other amounts payable
under this Agreement and the other Loan Documents to be forthwith due and
payable, whereupon the Advances, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly waived by
the Borrower; provided, however, that if an Event of Default under Section
7.01(e) above shall have occurred, (A) the obligation of each Lender to make
Advances and of the Issuing Bank to issue Letters of Credit shall
automatically be terminated and (B) the Advances, all such interest and all
such amounts shall automatically become and be due and payable, without
presentment, demand, protest, notice of acceleration, notice of intent to
accelerate, or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
SECTION 7.02. Actions in Respect of the Letters of Credit Upon
Event of Default; L/C Cash Collateral Account; Investing of Amounts in the
L/C Cash Collateral Account; Release.
(a) Upon (i) the occurrence and during the continuance of any Event of
Default and (ii) the making of the request or the granting of the consent
specified by Section 7.01 to authorize the Administrative Agent to declare
the Advances due and payable pursuant to the provisions of Section 7.01, the
Administrative Agent may, and at the request of the Required Lenders shall,
irrespective of whether it is taking any of the actions described in Section
7.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent on behalf of the
Lenders in same day funds at the Administrative Agent's office designated in
such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding
in the Currency of such Letters of Credit provided, that if an Event of
Default under Section 7.01(e) shall have occurred the obligation of the
Borrower to make such deposit shall be automatic without the need for such
demand by the Administrative Agent. If at any time the Administrative Agent
determines that any funds held in the L/C Cash Collateral Account are subject
to any equal or prior right or claim of any Person other than the
Administrative Agent and the Lenders pursuant to this Agreement or that the
total amount of such funds is less than the aggregate Available Amount of all
Letters of Credit, the Borrower will, forthwith upon demand by the
Administrative Agent, pay to the Administrative Agent, as additional funds to
be deposited and held in the L/C Cash Collateral Account, an amount equal to
the excess of (1) such aggregate Available Amount over (2) the total amount
of funds, if any, then held in the L/C Cash Collateral Account that the
Administrative Agent determines to be free and clear of any such equal or
prior right and claim.
(b) The Borrower hereby authorizes the Administrative Agent to open at
any time upon the occurrence and during the continuance of an Event of
Default a non interest bearing account with the Administrative Agent at its
address designated in Section 9.02 in the name of the Borrower but in
connection with which the Administrative Agent shall be the sole entitlement
holder or customer (the "L/C Cash Collateral Account"), and hereby pledges
and assigns and grants to the Administrative Agent on behalf of the Lenders a
security interest in the following collateral (the "L/C Cash Collateral
Account Collateral"):
(i) the L/C Cash Collateral Account, all funds held therein and all
certificates and instruments, if any, from time to time representing or
evidencing the investment of funds held therein,
(ii) all L/C Cash Collateral Account Investments from time to time,
and all certificates and instruments, if any, from time to time
representing or evidencing the L/C Cash Collateral Account Investments,
(iii) all notes, certificates of deposit, deposit accounts, checks
and other instruments from time to time delivered to or otherwise
possessed by the Administrative Agent for or on behalf of the Borrower
in substitution for or in addition to any or all of the then existing
L/C Cash Collateral Account Collateral,
(iv) all interest, dividends, cash, instruments and other property
from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of the then existing L/C Cash
Collateral Account Collateral, and
(v) all proceeds of any and all of the foregoing L/C Cash
Collateral Account Collateral.
(c) If requested by the Borrower, the Administrative Agent will, subject
to the provisions of clause (e) below, from time to time (i) invest amounts
on deposit in the L/C Cash Collateral Account in such notes, certificates of
deposit and other debt instruments as the Borrower may select and the
Administrative Agent may approve and (ii) invest interest paid on the notes,
certificates of deposit and other instruments referred to in clause (i)
above, and reinvest other proceeds of any such notes, certificates of deposit
and other instruments which may mature or be sold, in each case in such
notes, certificates of deposit and other debt instruments as the Borrower may
select and the Administrative Agent may approve (the notes, certificates of
deposit and other instruments referred to in clauses (i) and (ii) above being
collectively "L/C Cash Collateral Account Investments"). Interest and
proceeds that are not invested or reinvested in L/C Cash Collateral Account
Investments as provided above shall be deposited and held in the L/C Cash
Collateral Account.
(d) Upon such time as (i) the aggregate Available Amount of all Letters
of Credit is reduced to zero and such Letters of Credit are expired or
terminated by their terms and all amounts payable in respect thereof,
including but not limited to principal, interest, commissions, fees and
expenses, have been paid in full in cash, and (ii) no Event of Default has
occurred and is continuing under this Agreement, the Administrative Agent
will pay and release to the Borrower or at its order (a) accrued interest due
and payable on the L/C Cash Collateral Account Investments and in the L/C
Cash Collateral Account, and (b) the balance remaining in the L/C Cash
Collateral Account after the application, if any, by the Administrative Agent
of funds in the L/C Cash Collateral Account to the payment of amounts
described in clause (i) of this paragraph (d).
(e) (i) The Administrative Agent may, without notice to the Borrower
except as required by law and at any time or from time to time, charge, set
off and otherwise apply all or any part of the L/C Cash Collateral Account
against the obligations of the Borrower in respect of Letters of Credit
(collectively, the "L/C Cash Collateral Account Obligations") or any part
thereof. The Administrative Agent agrees to notify the Borrower promptly
after any such set off and application, provided that the failure of the
Administrative Agent to give such notice shall not affect the validity of
such set off and application.
(ii) The Administrative Agent may also exercise in respect of the
L/C Cash Collateral Account Collateral, in addition to other rights and
remedies provided for herein or otherwise available to it, all the
rights and remedies of a secured party on default under the UCC in
effect in the State of New York at that time (the "NYUCC") (whether or
not the NYUCC applies to the affected L/C Cash Collateral Account
Collateral), and may also, without notice except as specified below,
sell the L/C Cash Collateral Account Collateral or any part thereof in
one or more parcels at public or private sale, at any of the
Administrative Agent's offices or elsewhere, for cash, on credit or for
future delivery, and upon such other terms as the Administrative Agent
may deem commercially reasonable. The Borrower agrees that, to the
extent notice of sale shall be required by law, at least ten days'
notice to the Borrower of the time and place of any public sale or the
time after which any private sale is to be made shall constitute
reasonable notification. The Administrative Agent shall not be obligated
to make any sale of L/C Cash Collateral Account Collateral regardless of
notice of sale having been given. The Administrative Agent may adjourn
any public or private sale from time to time by announcement at the time
and place fixed therefor, and such sale may, without further notice, be
made at the time and place to which it was so adjourned.
(iii) Any cash held by the Administrative Agent as L/C Cash
Collateral Account Collateral and all cash proceeds received by the
Administrative Agent in respect of any sale of, collection from, or
other realization upon all or any part of the L/C Cash Collateral
Account Collateral may, in the discretion of the Administrative Agent,
be held by the Administrative Agent as collateral for, and/or then or at
any time thereafter be applied in whole or in part by the Administrative
Agent against, all or any part of the L/C Cash Collateral Account
Obligations in such order as the Administrative Agent shall elect. Any
surplus of such cash or cash proceeds held by the Administrative Agent
and remaining after payment in full of all the L/C Cash Collateral
Account Obligations shall be paid over to the Borrower or to whomsoever
may be lawfully entitled to receive such surplus.
(f) Upon the permanent reduction from time to time of the aggregate
Available Amount of all Letters of Credit in accordance with the terms
thereof, the Administrative Agent shall release to the Borrower amounts from
the L/C Cash Collateral Account in an amount equal to each such permanent
reduction; provided that the Administrative Agent shall not be obligated to
reduce the funds or other L/C Cash Collateral Account Collateral then held in
the L/C Cash Collateral Account below that level that the Administrative
Agent reasonably determines is required to be maintained after taking into
consideration any rights or claims of any Persons other than the
Administrative Agent.
(g) In furtherance of the grant of the pledge and security interest
pursuant to this Section 7.02, the Borrower hereby agrees with each Lender,
the Issuing Bank and the Administrative Agent that the Borrower shall give,
execute, deliver, file and/or record any financing statement, notice,
instrument, document, agreement or other papers that may be necessary or
desirable (in the reasonable judgment of the Administrative Agent) to create,
preserve, perfect or validate the security interest granted pursuant hereto
or to enable the Administrative Agent to exercise and enforce its rights
hereunder with respect to such pledge and security interests.
ARTICLE VIII
THE AGENT
SECTION 8.01. Appointment and Authority. Each of the Lenders hereby
irrevocably appoints Citibank to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article VIII are solely for the benefit of
the Administrative Agent and the Lenders, and neither the Borrower nor any
other Loan Party shall have rights as a third party beneficiary of any of
such provisions.
SECTION 8.02. Rights as a Lender. The Person serving as the
Administrative Agent hereunder shall have the same rights and powers in its
capacity as a Lender as any other Lender and may exercise the same as though
it were not the Administrative Agent and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Administrative Agent hereunder in
its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory
capacity for and generally engage in any kind of business with the Borrower
or any Subsidiary or other Affiliate thereof as if such Person were not the
Administrative Agent hereunder and without any duty to account therefor to
the Lenders.
SECTION 8.03. Exculpatory Provisions. The Administrative Agent
shall not have any duties or obligations except those expressly set forth
herein and in the other Loan Documents. Without limiting the generality of
the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default or Event of Default has occurred and is
continuing;
(b) shall not have any duty to take any discretionary action or exercise
any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Administrative
Agent is required to exercise as directed in writing by the Required Lenders
(or such other number or percentage of the Lenders as shall be expressly
provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose the Administrative Agent to
liability or that is contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other
Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken
or not taken by it (i) with the consent or at the request of the Required
Lenders (or such other number or percentage of the Lenders as shall be
necessary or as the Administrative Agent shall believe in good faith shall be
necessary) or (ii) in the absence of its own gross negligence or willful
misconduct. The Administrative Agent shall be deemed not to have knowledge of
any Default or Event of Default unless and until notice describing such
Default or Event of Default is given to the Administrative Agent by the
Borrower or a Lender.
The Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement or any other Loan
Document, (ii) the contents of any certificate, report or other document
delivered hereunder or thereunder or in connection herewith or therewith,
(iii) the performance or observance of any of the covenants, agreements or
other terms or conditions set forth herein or therein or the occurrence of
any Default or Event of Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or
any other agreement, instrument or document or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative
Agent.
SECTION 8.04. Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to
be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Administrative Agent also may rely upon any statement made
to it orally or by telephone and believed by it to have been made by the
proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of an
Advance that by its terms must be fulfilled to the satisfaction of a Lender,
the Administrative Agent may presume that such condition is satisfactory to
such Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender prior to the making of such Advance. The
Administrative Agent may consult with legal counsel (who may be counsel for
the Borrower), independent accountants and other experts selected by it, and
shall not be liable for any action taken or not taken by it in accordance
with the advice of any such counsel, accountants or experts.
SECTION 8.05. Delegation of Duties. The Administrative Agent may
perform any and all of its duties and exercise its rights and powers
hereunder or under any other Loan Document by or through any one or more
sub-agents appointed by the Administrative Agent. The Administrative Agent
and any such sub-agent may perform any and all of its duties and exercise its
rights and powers by or through their respective Related Parties. The
exculpatory provisions of this Article VIII shall apply to any such sub-agent
and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with
the syndication of the credit facilities provided for herein as well as
activities as Administrative Agent.
SECTION 8.06. Indemnification. The Lenders agree to indemnify the
Administrative Agent (to the extent not reimbursed by the Borrower, without
affecting the Borrower's obligation to do so), ratably according to the
respective amounts of their Commitments, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against the Administrative Agent
in any way relating to or arising out of this Agreement or any action taken
or omitted by the Administrative Agent (in its capacity as such) under this
Agreement (collectively, the "Indemnified Costs"), provided that no Lender
shall be liable for any portion of the Indemnified Costs resulting from the
Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any
out-of-pocket expenses (including counsel fees) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect
of rights or responsibilities under, this Agreement, to the extent that the
Administrative Agent is not reimbursed for such expenses by the Borrower. In
the case of any investigation, litigation or proceeding giving rise to any
Indemnified Costs, this Section 8.06 applies whether any such investigation,
litigation or proceeding is brought by the Administrative Agent, any Lender
any other Loan Party or a third party. The agreements in this Section 8.06
shall survive the resignation of the Administrative Agent, the replacement of
any Lender, the termination of the Aggregate Commitments and the repayment,
satisfaction or discharge of all the other Obligations.
SECTION 8.07. Resignation of Administrative Agent. The
Administrative Agent may at any time give notice of its resignation to the
Lenders and the Borrower. Upon receipt of any such notice of resignation, the
Required Lenders shall have the right, in consultation with the Borrower, to
appoint a successor, which shall be a bank with an office in the United
States, or an Affiliate of any such bank with an office in the United States.
If no such successor shall have been so appointed by the Required Lenders and
shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may on behalf of the Lenders, appoint a successor
Administrative Agent meeting the qualifications set forth above; provided
that if the Administrative Agent shall notify the Borrower and the Lenders
that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (a) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder and under the other Loan Documents and (b) all
payments, communications and determinations provided to be made by, to or
through the Administrative Agent shall instead be made by or to each Lender
directly, until such time as the Required Lenders appoint a successor
Administrative Agent as provided for in this Section 8.07. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder,
such successor shall succeed to and become vested with all of the rights,
powers, privileges and duties of the retiring (or retired) Administrative
Agent, and the retiring Administrative Agent shall be discharged from all of
its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided in this Section 8.07). The fees
payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Administrative Agent's
resignation hereunder and under the other Loan Documents, the provisions of
this Article VIII and Section 9.04 shall continue in effect for the benefit
of such retiring Administrative Agent, its sub-agents and their respective
Related Parties in respect of any actions taken or omitted to be taken by any
of them while the retiring Administrative Agent was acting as Administrative
Agent.
SECTION 8.08. Non-Reliance on Administrative Agent and Other
Lenders. Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent, the Arranger or any other Lender or
any of their Related Parties and based on such documents and information as
it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender or any of their Related Parties and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or any related agreement or any document
furnished hereunder or thereunder.
SECTION 8.09. No Duties Imposed Upon Syndication Agents, Book
Runners or Arrangers. No Person identified on the cover page to this
Agreement, the signature pages to this Agreement or otherwise in this
Agreement as a "Syndication Agent", "Lead Arranger" or "Book Runner" shall
have any right, power, obligation, liability, responsibility or duty under
this Agreement other than, if such Person is a Lender, those applicable to
all Lenders as such. Without limiting the foregoing, no Person identified on
the cover page to this Agreement, the signature pages to this Agreement or
otherwise in this Agreement as a "Syndication Agent", "Lead Arranger" or
"Book Runner" shall have or be deemed to have any fiduciary duty to or
fiduciary relationship with any Lender. In addition to the agreement set
forth in Section 8.08, each of the Lenders acknowledges that it has not
relied, and will not rely, on any Person so identified in deciding to enter
into this Agreement or in taking or not taking action hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or any Loan Document, nor consent to any
departure by the Borrower therefrom, shall in any event be effective unless
the same shall be in writing and signed by the Required Lenders, and then
such waiver or consent shall be effective only in the specific instance and
for the specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed by all the
Lenders, do any of the following: (a) waive any of the conditions specified
in Section 4.01, (b) increase or extend the Commitment of any Lender or the
Aggregate Commitment other than pursuant to Section 2.23, (c) reduce the
principal of, or interest (or rate of interest) on, any Advance or any Fee or
other amounts payable hereunder, (d) postpone any date fixed for any payment
of principal of, or interest on, any Advance or any Fee or other amounts
payable hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Advances, or the number of Lenders,
that shall be required for the Lenders or any of them to take any action
hereunder, (f) other than pursuant to a transaction permitted by the terms of
this Agreement, release any Subsidiary Guarantor from its obligations under
the Guarantees or release any material portion of the Collateral, (g) amend
this Section 9.01; and provided further that no amendment, waiver or consent
(i) relating to the Administrative Agent shall be effective without the
written consent of the Administrative Agent and (ii) relating to the Issuing
Bank shall be effective without the written consent of the Issuing Bank in
each case in addition to the Lenders required above to take such action,
affect the rights or duties of the Administrative Agent or the Issuing Bank,
as the case may be under this Agreement or any Loan Document, (h) amend the
definition of "Agreed Currencies". The Administrative Agent may waive the
payment of the fee required under Section 9.07(b)(iv) without obtaining the
consent of any of the Lenders, and (i) amend or waive any provision providing
for the pro rata nature of disbursements by or payments to the Lenders.
SECTION 9.02. Notices, Etc. (a) All notices and other
communications provided for hereunder shall be either (x) in writing
(including telecopier, telegraphic or telex communication) and mailed,
telecopied, telegraphed, telexed or delivered or (y) as and to the extent set
forth in Section 9.02(b) and in the proviso to this Section 9.02(a), if to
the Borrower at its address at 0000 Xxxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxx
00000-0000, Attention: CFO, Telephone: (000) 000-0000, Telecopy: (210)
255-6998; with a copy to 0000 Xxxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxx 00000-0000,
Attention: Treasurer, Telephone: (000) 000-0000, Telecopy: (000) 000-0000;
with a copy to 0000 Xxxxxxx Xxxxx, Xxx Xxxxxxx, Xxxxx 00000-0000, Attention:
General Counsel, Telephone: (000) 000-0000, Telecopy: (000) 000-0000; and
with an additional copy to Xxx Xxxxx Xxxxxxxx Incorporated, 000 X, Xxxxx
Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxx 00000, Attention: Xxxxx X. XxXxxxxxx,
Telephone: (000) 000-0000, Telecopy: (000) 00000000; if to any Initial
Lender, at its Domestic Lending Office specified opposite its name on
Schedule I hereto; if to any other Lender, at its Domestic Lending Office
specified in the Assumption Agreement or the Assignment and Acceptance
pursuant to which it became a Lender; and if to the Administrative Agent, at
its address at Xxx Xxxxx Xxx, Xxxxx 000, Xxx Xxxxxx, Xxxxxxxx 00000,
Attention: Bank Loan Operations Xxxxxxx Xxxxxxx, Facsimile Number (212)
000-0000, Telephone Number (000) 000-0000, or, for purposes of
Communications, as defined below, xxxxxxxxxxxxxxx@xxxxxxxxx.xxx or, as to the
Borrower or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party
in a written notice to the Borrower and the Administrative Agent, provided
that materials required to be delivered by the Borrower pursuant to Section
6.01(k)(i), (k)(ii), (k)(iii), (a)(vii) or (a)(viii) shall be delivered to
the Administrative Agent as specified in Section 9.02(b) or as otherwise
specified to the Borrower by the Administrative Agent. All such notices and
communications shall, when mailed, telecopied, telegraphed or e-mailed, or
telexed, be effective when deposited in the mails, telecopied, delivered to
the telegraph company or confirmed by e-mail or confirmed by telex
answerback, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II, III or VIII shall not be
effective until received by the Administrative Agent. Delivery by telecopier
of an executed counterpart of any amendment or waiver of any provision of the
Loan Documents or of any Exhibit thereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
(b) Electronic Communications.
(i) Delivery of Communications by the Borrower. The Borrower agrees
that, unless otherwise requested by the Administrative Agent, it will
provide to the Administrative Agent all information, documents and other
materials that it is obligated to furnish to the Administrative Agent
pursuant to this Agreement and the other Loan Documents, including,
without limitation, all notices, requests, financial statements,
financial and other reports, certificates and other information
materials, but excluding any such communication that (A) relates to a
request for a new, or a Conversion of an existing, Borrowing (including
any election of an interest rate or Interest Period relating thereto),
(B) relates to the payment of any principal or other amount due under
this Agreement prior to the scheduled date therefor, (C) provides notice
of any Default or Event of Default under this Agreement, (D) is required
to be delivered to satisfy any condition precedent in Article IV
relating to the effectiveness of this Agreement and/or any Borrowing or
(E) initiates or responds to legal process (all such non excluded
information being referred to herein collectively as the
"Communications"), by transmitting the Communications in an
electronic/soft medium (provided such Communications contain any
required signatures) in a format acceptable to the Administrative Agent
to the email address specified in Section 9.02(a) or such other e-mail
address designated by the Administrative Agent from time to time.
(ii) Use of Web Platforms. Each party hereto agrees that the
Administrative Agent may make the Communications available to the
Lenders and the Issuing Bank by posting the Communications on IntraLinks
or another similar website, if any, to which each Lender and the
Administrative Agent have access (the "Platform"). Nothing in this
Section 9.02 shall prejudice the right of the Administrative Agent to
make the Communications available to the Lenders and the Issuing Bank in
any other manner specified in this Agreement.
(iii) E-mail Notification to Lenders. Each Lender and the Issuing
Bank agrees that e-mail notice to it (at the address provided pursuant
to the next sentence and deemed delivered as provided in the next
paragraph) specifying that Communications have been posted to the
Platform shall constitute effective delivery of such Communications to
such Lender or the Issuing Bank for purposes of this Agreement. Each
Lender and the Issuing Bank agrees (A) to notify the Administrative
Agent in writing (including by electronic communication) from time to
time to ensure that the Administrative Agent has on record an effective
e-mail address for such Lender or the Issuing Bank, as the case may be,
to which the foregoing notice may be sent by electronic transmission,
and (B) that the foregoing notice may be sent to such e-mail address.
(iv) Presumption as to Delivery of E-Mail. Each party agrees that
any electronic communication referred to in this Section 9.02 shall be
deemed delivered and received upon the posting of a record of such
communication as "received" in the e-mail system of the recipient;
provided that if such communication is not so received during normal
business hours, such communication shall be deemed delivered and
received at the opening of business on the next Business Day.
(v) Waiver of Responsibility. Each party acknowledges that (A) the
distribution of material through an electronic medium is not necessarily
secure and that there are confidentiality and other risks associated
with such distribution, (B) the Communications and the Platform are
provided "as is" and "as available," (C) none of the Administrative
Agent, its affiliates nor any of their respective officers, directors,
employees, agents, advisors or representatives (collectively, the
"Citigroup Parties") warrants the adequacy, accuracy or completeness of
the Communications or the Platform, and each Citigroup Party expressly
disclaims liability for errors or omissions in any Communications or the
Platform, and (D) no warranty of any kind, express, implied or
statutory, including, without limitation, any warranty of
merchantability, fitness for a particular purpose, non infringement of
third party rights or freedom from viruses or other code defects, is
made by any Citigroup Party in connection with any Communications or the
Platform.
(vi) Limitation on use of Platform. Notwithstanding the foregoing,
if the Borrower has any reason to believe that either the
confidentiality of the Platform, the confidentiality of electronic
transmissions to the Administrative Agent, or the integrity of
Communications posted on the Platform has, may have or may in the future
be compromised, then the Borrower may upon notice to the Administrative
Agent delivered in any manner permitted under this Agreement, either (A)
suspend its obligation hereunder to transmit Communications to the
Administrative Agent by electronic/soft medium, (B) instruct the
Administrative Agent not to transmit to the Platform any as yet
un-posted Communications, and/or (C) instruct the Administrative Agent
to take commercially reasonable steps to remove any currently posted
Communications from the Platform. In the event that the use of the
Platform should be suspended due to any of the circumstances described
in this paragraph, the Borrower agrees to deliver the Communications to
each Lender via e-mail. The Lenders agree that the delivery of the
Communications via e-mail shall be deemed effective upon the posting of
a record of such electronic transmission as "sent" in the e-mail system
of the Borrower. The Administrative Agent agrees to immediately inform
the Borrower of any security issue or Communications integrity issue
that comes to its attention and relates to the Platform or the
Administrative Agent's receipt of electronic Communications.
(c) Change of Address, Etc. Any party hereto may change its address,
facsimile number or email address for notices and other communications
hereunder by notice to the other parties hereto.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising,
any right hereunder or under any other Loan Document shall operate as a
waiver thereof; nor shall any single or partial exercise of any such right
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 9.04. Expenses; Indemnity; Damage Waiver.
(a) Costs and Expenses. The Borrower shall pay (i) all reasonable
out-of-pocket expenses incurred by the Administrative Agent, CGMI and their
Affiliates (including the reasonable fees, charges and disbursements of
counsel for the Administrative Agent), in connection with the syndication of
the credit facilities provided for herein, the preparation, negotiation,
execution, delivery and administration of this Agreement and the other Loan
Documents or any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions contemplated hereby or
thereby shall be consummated), and (ii) all reasonable out-of-pocket expenses
incurred by the Administrative Agent, the Issuing Bank or any Lender
(including the fees, charges and disbursements of any counsel for the
Administrative Agent or any Lender), in connection with the enforcement or
protection of its rights (A) in connection with this Agreement and the other
Loan Documents, including its rights under this Section 9.04, or (B) in
connection with the Advances made hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in
respect of such Advances.
(b) Indemnification by the Borrower. The Borrower shall indemnify the
Administrative Agent (and any sub-agent thereof), the Issuing Bank, each
Lender and each Related Party of any of the foregoing Persons (each such
Person being called an "Indemnitee") against, and hold each Indemnitee
harmless from, any and all losses, claims, damages, liabilities and related
expenses (including the fees, charges and disbursements of any counsel for
any Indemnitee), and shall indemnify and hold harmless each Indemnitee from
all fees and time charges and disbursements for attorneys who may be
employees of any Indemnitee, incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by the Borrower or any other Loan Party
arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby or thereby, the performance by the parties
hereto of their respective obligations hereunder or thereunder or the
consummation of the transactions contemplated hereby or thereby, (ii) any
Advance or the use or proposed use of proceeds therefrom, (iii) any actual or
alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation,
investigation or proceeding relating to any of the foregoing, whether based
on contract, tort or any other theory, whether brought by a third party or by
the Borrower or any other Loan Party, and regardless of whether any
Indemnitee is a party thereto, provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages,
liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or willful misconduct of such Indemnitee.
(c) Waiver of Consequential Damages, Etc. The Borrower shall not assert,
and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement, any other Loan Document or any agreement or
instrument contemplated hereby, the transactions contemplated hereby or
thereby, any Advance or the use of the proceeds thereof or any Letter of
Credit. No Indemnitee referred to in Section 9.04(b) shall be liable for any
damages arising from the use by unintended or unauthorized recipients of any
information or other materials distributed by it through telecommunications,
electronic or other similar information transmission systems in connection
with this Agreement or the other Loan Documents or the transactions
contemplated hereby or thereby.
(d) Payments. All amounts due under this Section 9.04 shall be payable
not later than ten Business Days after demand therefor.
(e) Survival. The agreements in this Section 9.04 shall survive the
resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
SECTION 9.05. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, each Lender and each of its Affiliates
is hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by such Lender or such Affiliate to or for the
credit or the account of the Borrower against any and all of the obligations
of the Borrower now or hereafter existing under this Agreement and any other
Loan Document, whether or not such Lender shall have made any demand under
this Agreement or any other Loan Document and although such obligations may
be unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Lender and its Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender and its Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
(other than Section 2.01, which shall only become effective upon satisfaction
of the conditions precedent set forth in Section 4.01) when it shall have
been executed by the parties hereto and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent, the Issuing
Bank and each Lender and their respective successors and assigns, except that
the Borrower shall not have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Lenders.
SECTION 9.07. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of the Administrative Agent and each Lender and no Lender may assign
or otherwise transfer any of its rights or obligations hereunder except (i)
to an assignee in accordance with the provisions of paragraph (b) of this
Section, (ii) by way of participation in accordance with the provisions of
paragraph (h) of this Section or (iii) by way of pledge or assignment of a
security interest subject to the restrictions of paragraph (j) of this
Section (and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Agreement, expressed or implied,
shall be construed to confer upon any Person (other than the parties hereto,
their respective successors and assigns permitted hereby, Participants to the
extent provided in paragraph (i) of this Section and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent
and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or
more assignees all or a portion of its rights and obligations under this
Agreement and the other Loan Documents (including all or a portion of its
Commitment and the Advances at the time owing to it); provided that any such
assignment shall be to an Eligible Assignee and subject to the following
conditions:
(i) Minimum Amounts. The amounts of such assignment, which are:
(A) in the case of an assignment of the entire remaining amount of
the assigning Lender's Commitment and the Advances at the time owing to
it or in the case of an assignment to a Lender, an Affiliate of a Lender
or an Approved Fund, no minimum amount need be assigned; or
(B) in any case not described in paragraph (b)(i)(A) of this
Section, the aggregate amount of the Commitment (which for this purpose
includes Advances outstanding thereunder) or, if the applicable
Commitment is not then in effect, the principal outstanding balance of
the Advances of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Acceptance with respect to
such assignment) shall not be less than $10,000,000 or an integral
multiple of $1,000,000 in excess thereof, unless each of the
Administrative Agent and, so long as no Event of Default has occurred
and is continuing, the Borrower otherwise consents (each such consent
not to be unreasonably withheld or delayed).
(ii) Proportionate Amounts. Each partial assignment shall be made
as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Advance
or the Commitment assigned.
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by paragraph (b)(i)(B) of this
Section and, in addition:
(A) the consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (x) an Event
of Default has occurred and is continuing at the time of such assignment
or (y) such assignment is to a Lender, an Affiliate of a Lender or an
Approved Fund; and
(B) the consent of the Administrative Agent and the Issuing Bank
(such consent not to be unreasonably withheld or delayed) shall be
required for assignments to a Person that is not a Lender with a
Commitment, an Affiliate of such Lender or an Approved Fund with respect
to such Lender; provided that an assigning Lender shall give notice to
the Administrative Agent and the Borrower with respect to any assignment
to an Affiliate of such assigning Lender or an Approved Fund.
(iv) Assignment and Acceptance. The parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $3,500,
and the assignee, if it is not a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be made to
the Borrower or any of the Borrower's Affiliates or Subsidiaries.
(vi) No Assignment to Natural Persons. No such assignment shall be
made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to paragraph (e) of this Section, from and after the effective
date specified in each Assignment and Acceptance, the assignee
thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all
of the assigning Lender's rights and obligations under this Agreement,
such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 2.11, 2.14, 2.16 and 9.04 with
respect to facts and circumstances occurring prior to the effective date
of such assignment. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this
paragraph shall be treated for purposes of this Agreement as a sale by
such Lender of a participation in such rights and obligations in
accordance with paragraph (h) of this Section.
(c) Assignment and Acceptance. By executing and delivering an Assignment
and Acceptance, the Lender assignor thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto as follows:
(i) other than as provided in such Assignment and Acceptance, such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or
any other instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together
with copies of the financial statements referred to in Section 5.01(d) and
such other documents and information as it has deemed appropriate to make its
own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon
the Administrative Agent, such assigning Lender or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes the Administrative Agent
to take such action as agent on its behalf and to exercise such powers under
this Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Lender.
(d) Assuming Lender. Each Assuming Lender shall submit a Assumption
Agreement in accordance with the provisions of Section 2.23(d). Upon the
execution, delivery, acceptance and recording of a Assumption Agreement, from
and after the Increase Date related thereto such Assuming Lender shall be a
party hereto and have the rights and obligations of a Lender hereunder having
the Commitment specified therein. By executing and delivering a Assumption
Agreement, the Assuming Lender thereunder confirms to and agrees with the
other parties hereto as follows: (i) such Assuming Lender hereby agrees that
no Lender has made any representation or warranty, or assumes any
responsibility with respect to, (x) any statements, warranties or
representations made in or in connection with this Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other instrument or document furnished
pursuant hereto or (y) the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under
this Agreement or any other instrument or document furnished pursuant hereto;
(ii) such Assuming Lender confirms that it has received a copy of this
Agreement, together with copies of the financial statements referred to in
Section 5.01(d) and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assumption Agreement; (iii) such Assuming Lender will, independently and
without reliance upon the Administrative Agent or any other Lender and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under this Agreement; (iv) such Assuming Lender confirms that it is an
Eligible Assignee; (v) such Assuming Lender appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Loan Documents as are
delegated to the Administrative Agent by the terms hereof, together with such
powers as are reasonably incidental thereto; and (vi) such Assuming Lender
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed
by it as a Lender.
(e) Register. The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at the Administrative Agent's
Office a copy of each Assumption Agreement and Assignment and Acceptance
delivered to it and a register for the recordation of the names and addresses
of the Lenders, and the Commitments of, and principal amounts of and interest
on the Advances owing to, each Lender pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be conclusive
(absent manifest error), and the Borrower, the Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register pursuant
to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary; provided, however, that the failure
of the Administrative Agent to make an entry, or any finding that an entry is
incorrect, in the Register shall not limit or otherwise affect the
obligations of the Borrower under this Agreement. The Register shall be
available for inspection by the Borrower at any reasonable time and from time
to time upon reasonable prior notice. In addition, at any time that a request
for a consent for a material or substantive change to the Loan Documents is
pending, any Lender wishing to consult with other Lenders in connection
therewith may request and receive from the Administrative Agent a copy of the
Register.
(f) Replacement Notes. Upon the consummation of (i) any assignment to an
assignee hereunder, the transferor Lender, the Administrative Agent and the
Borrower shall, if the transferor Lender or the assignee desires that its
Advances be evidenced by Notes, make appropriate arrangements so that, upon
cancellation and surrender to the Borrower of the previously issued Notes (if
any) held by the transferor Lender, new Notes issued hereunder or, as
appropriate, replacement Notes are issued to such transferor Lender, if
applicable, and new Notes or, as appropriate, replacement Notes, are issued
to such assignee, in each case in principal amounts reflecting their
respective Commitments (or, if the Termination Date has occurred, their
respective Pro Rata Share of the Total Outstandings) as adjusted pursuant to
such assignment.
(g) Receipt of Assumption Agreement. Upon its receipt of an Assumption
Agreement executed by an Assuming Lender representing that it is an Eligible
Assignee, the Administrative Agent shall, if such Assumption Agreement has
been completed, (i) accept such Assumption Agreement, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall, if so requested by the
Assuming Lender, execute and deliver to the Administrative Agent a new Note
to the order of such Assuming Lender in an amount equal to the Commitments
assumed by it pursuant to such Assumption Agreement. Such new Note, if any,
shall be dated the relevant Increase Date and shall otherwise be in
substantially the form of Exhibit A hereto.
(h) Participations. Any Lender may at any time, without the consent of,
or notice to, the Borrower or the Administrative Agent, sell participations
to any Person (other than a natural person or the Borrower or any of the
Borrower's Affiliates or Subsidiaries) (each, a "Participant") in all or a
portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Advances owing to
it); provided that (i) such Lender's obligations under this Agreement shall
remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent and the Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, waiver or other modification described
in the first proviso of Section 9.01 that affects such Participant. Subject
to paragraph (h) of this Section, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 2.11, 2.14 and 2.16 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law,
each Participant also shall be entitled to the benefits of Section 9.04 as
though it were a Lender, provided such Participant agrees to be subject to
Section 2.15 as though it were a Lender.
(i) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 2.11, 2.14 or 2.16 than
the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation
to such Participant is made with the Borrower's prior written consent. A
Participant that would be a Foreign Lender if it were a Lender shall not be
entitled to the benefits of Section 2.14 unless the Borrower is notified of
the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 2.14(e) as though it were
a Lender.
(j) Certain Pledges. Any Lender may at any time pledge or assign a
security interest in all or any portion of its rights under this Agreement
(including under its Note, if any) to secure obligations of such Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender
from any of its obligations hereunder or substitute any such pledge or
assignee for such Lender as a party hereto.
(k) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and
Acceptance shall be deemed to include electronic signatures or the keeping of
records in electronic form, each of which shall be of the same legal effect,
validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as
provided for in any applicable law, including the Federal Electronic
Signatures in Global and National Commerce Act, the New York State Electronic
Signatures and Records Act, or any other similar state laws based on the
Uniform Electronic Transactions Act.
SECTION 9.08. Confidentiality. Each of the Administrative Agent,
the Lenders and the Issuing Bank agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates' respective managers,
administrators, trustees, partners, directors, officers, employees, agents,
advisors and other representatives (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of
such Information and instructed to keep such Information confidential), (b)
to the extent requested by any regulatory authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (c) to the extent required
by applicable laws or regulations or by any subpoena or similar legal
process, (d) to any other party hereto, (e) in connection with the exercise
of any remedies hereunder or under any other Loan Document or any action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii)
any actual or prospective party (or its managers, administrators, trustees,
partners, directors, officers, employees, agents, advisors and other
representatives) to any swap or derivative or similar transaction under which
payments are to be made by reference to the Borrower and its obligations,
this Agreement or payments hereunder, (iii) any rating agency, or (iv) the
CUSIP Service Bureau or any similar organization, (g) with the consent of the
Borrower or (h) to the extent such Information (x) becomes publicly available
other than as a result of a breach of this Section or (y) becomes available
to the Administrative Agent, any Lender, the Issuing Bank or any of their
respective Affiliates on a nonconfidential basis from a source other than the
Borrower.
For purposes of this Section, "Information" means all information
received from the Borrower or any of its Subsidiaries relating to the
Borrower or any of its Subsidiaries or any of their respective businesses,
other than any such information that is available to the Administrative
Agent, any Lender or the Issuing Bank on a nonconfidential basis prior to
disclosure by the Borrower or any of its Subsidiaries, provided that, in the
case of information received from the Borrower or any of its Subsidiaries
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality
of Information as provided in this Section shall be considered to have
complied with its obligation to do so if such Person has exercised the same
degree of care to maintain the confidentiality of such Information as such
Person would accord to its own confidential information.
SECTION 9.09. Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the law of the State of New
York.
SECTION 9.10. Execution in Counterparts. This Agreement may be
executed in counterparts (and by different parties hereto in different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. This Agreement and
the other Loan Documents constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject
matter hereof. Delivery of an executed counterpart of a signature page of
this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.11. Survival of Representations and Warranties. All
representations and warranties made hereunder and in any other Loan Document
or other document delivered pursuant hereto or thereto or in connection
herewith or therewith shall survive the execution and delivery hereof and
thereof until repayment in full of all Obligations. Such representations and
warranties have been or will be relied upon by the Administrative Agent and
each Lender, regardless of any investigation made by the Administrative Agent
or any Lender or on their behalf and notwithstanding that the Administrative
Agent or any Lender may have had notice or knowledge of any Default or Event
of Default at the time of any Borrowing, and shall continue in full force and
effect as long as any Advance or any other Obligation hereunder shall remain
unpaid or unsatisfied.
SECTION 9.12. Severability. If any provision of this Agreement or
the other Loan Documents is held by a court of competent jurisdiction to be
illegal, invalid or unenforceable, (a) the legality, validity and
enforceability of the remaining provisions of this Agreement and the other
Loan Documents shall not be affected or impaired thereby and (b) the parties
hereto shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction.
SECTION 9.13. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property,
to the nonexclusive jurisdiction of any New York State court or federal court
of the United States of America sitting in New York City, and any appellate
court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that any party may otherwise have to bring any action
or proceeding relating to this Agreement or any other Loan Document in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection
that it may now or hereafter have to the laying of venue of any suit, action
or proceeding arising out of or relating to this Agreement or the or any
other Loan Document in any New York State or federal court. Each of the
parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
(c) Each party hereto irrevocably consents to service of process in the
manner provided for notices in Section 9.02. Nothing in this Agreement will
affect the right of any party hereto to serve process in any other manner
permitted by applicable law.
SECTION 9.14. Waiver of Jury Trial. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT
AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.15. Patriot Act Notice. Each Lender and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrower that pursuant to the requirements of the Patriot Act,
it is required to obtain, verify and record information that identifies the
Borrower, which information includes the name and address of the Borrower and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower in accordance with the Patriot Act. The
Borrower shall, and shall cause each of its Subsidiaries to, provide, to the
extent commercially reasonable, such information and take such actions as are
reasonably requested by the Administrative Agent or any Lenders in order to
assist the Administrative Agent and the Lenders in maintaining compliance
with the Patriot Act.
SECTION 9.16. Preservation of Rights. No delay or omission of the
Lenders, the Issuing Bank or the Administrative Agent to exercise any right
under the Loan Documents shall impair such right or be construed to be a
waiver of any Default or Event of Default or an acquiescence therein, and the
making of an Advance or the issuance of a Letter of Credit notwithstanding
the existence of a Default or Event of Default or the inability of the
Borrower to satisfy the conditions precedent to such Advance or issuance of
such Letter of Credit shall not constitute any waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or
further exercise thereof or the exercise of any other right, and no waiver,
amendment or other variation of the terms, conditions or provisions of the
Loan Documents whatsoever shall be valid unless in writing signed by the
Lenders required pursuant to Section 9.01, and then only to the extent in
such writing specifically set forth. All remedies contained in the Loan
Documents or by law afforded shall be cumulative and all shall be available
to the Administrative Agent, the Issuing Bank and the Lenders until the
Obligations have been paid in full in cash.
SECTION 9.17. Delivery of Termination Statements and Mortgage
Releases. Upon payment in full in cash and performance of all of the
Obligations (other than indemnification Obligations), termination of the
Commitments and a release of all claims against Administrative Agent and
Lenders, and so long as no suits, actions proceedings, or claims are pending
or threatened against any Indemnitee asserting any damages, losses or
liabilities that are indemnified liabilities hereunder, Administrative Agent
shall deliver to Borrower termination statements, mortgage releases and other
documents necessary or appropriate to evidence the termination of the Liens
securing payment of the Obligations.
SECTION 9.18. No Liability of the Issuing Bank. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee
of any Letter of Credit with respect to its use of such Letter of Credit.
Neither the Issuing Bank nor any of its respective officers or directors
shall be liable or responsible for: (a) the use that may be made of any
Letter of Credit or any acts or omissions of any beneficiary or transferee in
connection therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents should prove
to be in any or all respects invalid, insufficient, fraudulent or forged; (c)
payment by the Issuing Bank against presentation of documents that do not
comply with the terms of a Letter of Credit, including failure of any
documents to bear any reference or adequate reference to the Letter of
Credit; or (d) any other circumstances whatsoever in making or failing to
make payment under any Letter of Credit, except that the Borrower shall have
a claim against the Issuing Bank, and the Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages
suffered by the Borrower that were caused by (i) the Issuing Bank's willful
misconduct or gross negligence in determining whether documents presented
under any Letter of Credit comply with the terms of the Letter of Credit or
(ii) the Issuing Bank's willful failure to make lawful payment under a Letter
of Credit after the presentation to it of a draft and certificates strictly
complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, each Issuing Bank acting
in good faith may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 9.19. Authority with Respect to Guarantees and Collateral
Documents. (a) Authority to Take Action. Each Lender authorizes the
Administrative Agent to enter into each of the Guarantees, Collateral
Documents and any related agreements to which the Administrative Agent is or
may become a party and to take all action contemplated by such documents.
Each Lender agrees that no Holder of Secured Obligations (other than the
Administrative Agent) shall have the right individually to independently
enforce or seek to realize upon the security granted by any Guaranty or
Collateral Document, it being understood and agreed that such rights and
remedies may be exercised solely by the Administrative Agent for the benefit
of the Holders of Secured Obligations upon the terms of such documents. In
furtherance and without limitation of the foregoing, the Administrative Agent
is hereby authorized and given a power of attorney by and on behalf of each
of the Holders of Secured Obligations to execute any Guaranty or Collateral
Document necessary or appropriate to guarantee the Secured Obligations or
grant and perfect a Lien on any Collateral in favor of the Administrative
Agent on behalf of the Holders of Secured Obligations, if necessary.
(b) Authority to Release. The Lenders hereby authorize the
Administrative Agent, at its option and in its discretion, to release any
Subsidiary Guarantor from its obligations under any of the Guarantees and
release any Lien granted to the Administrative Agent upon any Collateral (i)
upon termination of the Commitments and payment and satisfaction of all of
the Obligations at any time arising under or in respect of this Agreement or
the Loan Documents and pursuant to any Hedging Arrangements or the
transactions contemplated hereby or thereby (which satisfaction, in the case
of outstanding Letters of Credit, may take the form of a backstop letter of
credit from an issuer acceptable to the Administrative Agent or cash
collateral); (ii) in connection with any transaction which is permitted by
this Agreement, (iii) as required pursuant to Section 6.01(m) or Section
6.01(n) or (iv) if approved, authorized or ratified in writing by the
Required Lenders, unless such release is required to be approved by all of
the Lenders hereunder. Upon request by the Administrative Agent at any time,
the Lenders will confirm in writing the Administrative Agent's authority to
release particular Subsidiary Guarantors or types or items of Collateral
pursuant to this Section 9.19(b).
(c) Further Documents, etc. Upon any sale or transfer of assets
constituting Collateral which is permitted pursuant to the terms of any Loan
Document, or consented to in writing by the Required Lenders or all of the
Lenders, as applicable, and upon at least five Business Days' prior written
request by the Borrower, the Administrative Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of the Liens granted to the Administrative
Agent for the benefit of the Holders of Secured Obligations herein or
pursuant hereto upon the Collateral that was sold or transferred; provided,
however, that (i) the Administrative Agent shall not be required to execute
any such document on terms which, in the Administrative Agent's opinion,
would expose the Administrative Agent to liability or create any obligation
or entail any consequence other than the release of such Liens without
recourse or warranty, and (ii) such release shall not in any manner
discharge, affect or impair the Secured Obligations or any Liens upon (or
obligations of the Borrowers or any Subsidiary in respect of) all interests
retained by the Borrowers or any Subsidiary, including (without limitation)
the proceeds of the sale, all of which shall continue to constitute part of
the Collateral.
SECTION 9.20. Interest Laws. Nothing contained in this Agreement or
the other Loan Documents shall be deemed to require the payment of interest
or other charges by any Person in excess of the amount which may be lawfully
charged to that Person under any applicable usury laws (the "Maximum Rate").
In the event that any Person shall collect moneys under this Agreement or any
other Loan Document which are deemed to constitute interest which would
increase the effective interest to a rate in excess of the Maximum Rate, all
such sums deemed to constitute interest in excess of the Maximum Rate shall,
upon such determination, at the option of the Person to whom such payment was
made, be returned to the payor thereof or credited against other amounts owed
by such payor hereunder or under the other Loan Documents.
SECTION 9.21. Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
[Remainder of page intentionally left blank; signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of
the date first above written.
KINETIC CONCEPTS, INC.,
as the Borrower
By
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Signature Page to Kinetic Concepts, Inc. Credit Agreement
CITIBANK, N.A.,
as a Lender and as the Administrative
Agent
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
XXXXX FARGO BANK, N.A.,
as Issuing Bank and as a Lender
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
BANK OF AMERICA, N.A.,
as a Lender
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
JPMORGAN CHASE BANK, N.A.,
as a Lender
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
UBS LOAN FINANCE LLC,
as a Lender
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
WACHOVIA BANK, NATIONAL
ASSOCIATION, as a Lender
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
THE BANK OF TOKYO-MITSUBISHI
UFJ, LTD., as a Lender
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
COMERICA BANK,
as a Lender
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
FORTIS CAPITAL CORP.,
as a Lender
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
AMEGY BANK, N.A.,
as a Lender
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
XXXXXXX XXXXX BANK USA,
as a Lender
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
XXXXXX XXXXXXX BANK
as a Lender
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
TEXAS CAPITAL BANK, NATIONAL
ASSOCIATION, as a Lender
By
---------------------------------------
Name:
Title:
Signature Page to Kinetic Concepts, Inc. Credit Agreement
SCHEDULE I
----------
KINETIC CONCEPTS, INC.
CREDIT AGREEMENT
INITIAL LENDERS - APPLICABLE LENDING OFFICES - COMMITMENT AMOUNTS
-----------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Name of Initial Lender Domestic Lending Office Eurocurrency Lending Office Amount of
Commitment
-----------------------------------------------------------------------------------------------------------------------
Citibank, N.A. Two Penns Way Two Penns Way US$65,000,000
Xxxxx 000 Xxxxx 000
Xxx Xxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
Primary Credit Contact: Primary Credit Contact:
---------------------- ----------------------
Xxxxxxx Xxxxxxx Xxxxxxx Xxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Secondary Credit Contact: Secondary Credit Contact:
------------------------ ------------------------
Xxxx Xxxxxxxx Xxxx Xxxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
Bank of America, N.A. 000 Xxxx Xxxxxx, 000 Xxxx Xxxxxx, US$45,000,000
00xx Xxxxx 00xx Xxxxx
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Primary Credit Contact: Primary Credit Contact:
---------------------- ----------------------
Xxx Xxxxxx Xxx Xxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Secondary Credit Contact: Secondary Credit Contact:
------------------------ ------------------------
Xxxx Xxxxxxxx Xxxx Xxxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
JPMorgan Chase Bank, N.A. 000 Xxxxx Xxxxx Xxxxxx 000 Xxxxx Xxxxx Xxxxxx US$45,000,000
7 th Floor 7 th Floor
Dallas, TX 75201-7424 Xxxxxx, XX 00000-0000
Primary Credit Contact: Primary Credit Contact:
---------------------- ----------------------
Xxxx Xxxxx Xxxx Xxxxx
Credit Executive Credit Executive
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Secondary Credit Contact: Secondary Credit Contact:
------------------------ ------------------------
000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx
8 th Floor 8 th Floor
Houston, TX 77002 Xxxxxxx, XX 00000
Xxxxx Xxxxx Xxxxx Xxxxx
Relationship Executive Relationship Executive
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
UBS Loan Finance LLC 000 Xxxxxxxxxx Xxxxxxxxx 000 Xxxxxxxxxx Xxxxxxxxx XXx00,000,000
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Primary Credit Contact: Primary Credit Contact:
---------------------- ----------------------
Xxxx Xxxx Xxxx Xxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
Wachovia Bank, National Association 000 X. Xxxxxxx Xx. 201 S. College St. US$45,000,000
NC 1183 NC 1183
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Primary Credit Contact: Primary Credit Contact:
---------------------- ----------------------
Xxxxxxxxx Xxxx Xxxxxxxxx Xxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
Xxxxx Fargo Bank, N.A. 000 Xxxxxxxxxx Xx. 000 Xxxxxxxxxx Xx. US$45,000,000
00xx Xxxxx 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Primary Credit Contact: Primary Credit Contact:
---------------------- ----------------------
Xxxx X. Xxxxx Xxxx X. Xxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Secondary Credit Contact: Secondary Credit Contact:
------------------------ ------------------------
Xxxx Xxxxxxx Xxxx Xxxxxxx
Senior Vice President Senior Vice President
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
The Bank of Tokyo-Mitsubishi UFJ, Ltd. 0000 Xxxx Xxxxxx 2001 Xxxx Avenue US$30,000,000
#0000 #0000
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Primary Credit Contact: Primary Credit Contact:
---------------------- ----------------------
Xxxxx Xxxxxxx Xxxxx Xxxxxxx
Vice President Vice President
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Secondary Credit Contact: Secondary Credit Contact:
------------------------ ------------------------
Xxxx Xxxxxxx Xxxx Xxxxxxx
Vice President & Manager Vice President & Manager
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
Comerica Bank 0000 Xxxxxx Xxxxxx Xxxx 0000 Xxxxxx Xxxxxx Xxxx US$30,000,000
Xxxxx 000 Xxxxx 000
Xxxxxx, XX 00000 Xxxxxx, XX 00000
Primary Credit Contact: Primary Credit Contact:
---------------------- ----------------------
Xxxxxx X. Xxxxxx, Xx. Xxxxxx X. Xxxxxx, Xx.
Vice President Vice President
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
Fortis Capital Corp. 000 Xxxxxxx Xxxxxx 520 Madison Avenue US$30,000,000
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Primary Credit Contact: Primary Credit Contact:
---------------------- ----------------------
Xxxx Xxxxxxxx Xxxx Xxxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Secondary Credit Contact: Secondary Credit Contact:
------------------------ ------------------------
Xxxxx Xxxxxxxxx Xxxxx Xxxxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
KeyBank National Association 000 Xxxxxx Xxxxxx 000 Xxxxxx Xxxxxx US$30,000,000
6 th Floor 6 th Floor
Cleveland, OH 44114 Xxxxxxxxx, XX 00000
Primary Credit Contact: Primary Credit Contact:
---------------------- ----------------------
X. X. Xxxxxx X. X. Xxxxxx
Senior Vice President Senior Vice President
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Secondary Credit Contact: Secondary Credit Contact:
------------------------ ------------------------
Xxxxxxx Xxx Xxxxxxx Xxx
Vice President Vice President
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
Amegy Bank, N.A. Union Square II Union Square II US$25,000,000
00000 Xxxxxxx Xxxxx Xxxxxxxxx 00000 Xxxxxxx Xxxxx Xxxxxxxxx
Xxxxx 000 Xxxxx 000
San Antonio, TX 78216 Xxx Xxxxxxx, XX 00000
Primary Credit Contact: Primary Credit Contact:
---------------------- ----------------------
Xxxx X. Xxxxxx Xxxx X. Xxxxxx
Senior Vice President Senior Vice President
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Secondary Credit Contact: Secondary Credit Contact:
------------------------ ------------------------
Xxxx Xxxxxx Xxxx Xxxxxx
Client Relation Associate Client Relation Associate
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
Xxxxxxx Xxxxx Bank USA 00 X. Xxxxx Xxxxxx 00 X. Xxxxx Xxxxxx US$25,000,000
Xxxxx 000 Xxxxx 000
Xxxx Xxxx Xxxx, XX 00000 Xxxx Xxxx Xxxx, XX 00000
Primary Credit Contact: Primary Credit Contact:
---------------------- ----------------------
Xxxxx Xxxxxxxx Xxxxx Xxxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Secondary Credit Contact: Secondary Credit Contact:
------------------------ ------------------------
Xxxxx Xxxxx Xxxxx Xxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
Xxxxxx Xxxxxxx Bank One Xxxxxxxxxx Xxxxx, Xxx Xxxxxxxxxx Xxxxx, XXx00,000,000
0xx Xxxxx 0xx Xxxxx
000 Xxxxxx Xxxxx Xxxx 000 Xxxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Primary Credit Contacts: Primary Credit Contacts:
----------------------- -----------------------
Xxxx Dell'Aquila/Xxxxxx Xxxxxx Xxxx Dell'Aquila/Xxxxxx Xxxxxx
Tel: (000) 000-0000/7285 Tel: (000) 000-0000/7285
Fax: (000) 000-0000/7250 Fax: (000) 000-0000/7250
000 Xxxxxxx Xxxxxx 000 Xxxxxxx Xxxxxx
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxx Xxx Xxxxx Xxx
Credit Officer Credit Officer
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx
0xx Xxxxx 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Xxxxxx Xxxxxx Xxxxxx Xxxxxx
Loan Products Group Loan Products Group
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
Texas Capital Bank, National Association 000 X. Xxxxxxxx 000 X. Xxxxxxxx US$15,000,000
Xxxxx 000 Xxxxx 000
Xxx Xxxxxxx, Xxxxx 00000 Xxx Xxxxxxx, Xxxxx 00000
Primary Credit Contact: Primary Credit Contact:
---------------------- ----------------------
Xxxx X. Xxxx Xxxx X. Xxxx
Executive Vice President Executive Vice President
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Secondary Credit Contact: Secondary Credit Contact:
------------------------ ------------------------
S. Xxxx Xxxxxxxx S. Xxxx Xxxxxxxx
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
-----------------------------------------------------------------------------------------------------------------------
SCHEDULE II
-----------
KINETIC CONCEPTS, INC.
CREDIT AGREEMENT
PRICING SCHEDULE
----------------
-----------------------------------------------------------------------
Xxxxx X Xxxxx XX Xxxxx Xxxxx XX Level V Level VI
Status Status III Status Status Status
Status
-------------------------------------------------------------------------------------------
=Baa1 Xxx0 Xxx0 Xx0 Xx0 < Ba2
Rating and and and and and and
=BBB+ BBB BBB- BB+ BB < BB
-------------------------------------------------------------------------------------------
Applicable
Commitment Fee
Percentage 0.08% 0.10% 0.125% 0.15% 0.20% 0.25%
-------------------------------------------------------------------------------------------
Applicable
Eurocurrency
Margin 0.40% 0.50% 0.625% 0.75% 1.00% 1.25%
-------------------------------------------------------------------------------------------
Applicable Base
Rate Margin 0% 0% 0% 0% 0% 0.25%
-------------------------------------------------------------------------------------------
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final two paragraphs of this Schedule:
"Level I Status" exists at any date if, on such date, the
Borrower's Applicable Xxxxx'x Rating is Baa1 or better and the Borrower's
Applicable S&P Rating is BBB+ or better.
"Level II Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I Status and (ii) the Borrower's
Applicable Xxxxx'x Rating is Baa2 and the Borrower's Applicable S&P Rating is
BBB.
"Level III Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I or II Status and (ii) the Borrower's
Applicable Xxxxx'x Rating is Baa3 and the Borrower's Applicable S&P Rating is
BBB-.
"Level IV Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I, II or III Status and (ii) the
Borrower's Applicable Xxxxx'x Rating is Ba1 and the Borrower's Applicable S&P
Rating is BB+.
"Level V Status" exists at any date if, on such date, (i) the
Borrower has not qualified for Level I, II, III or IV Status and (ii) the
Borrower's Applicable Xxxxx'x Rating is Ba2 and the Borrower's Applicable S&P
Rating is BB.
"Level VI Status" exists at any date if, on such date, the Borrower
has not qualified for Level I, II, III, IV or V Status.
"Status" means Level I Status, Level II Status, Level III Status,
Level IV Status, Level V Status or Level VI Status.
"Applicable Xxxxx'x Rating" means, at any time, (i) the rating
issued by Xxxxx'x and then in effect with respect to the Borrower's senior
secured credit facility as evidenced by this Agreement or (ii) if the
foregoing rating is no longer in effect, the senior implied credit rating
issued by Xxxxx'x and then in effect with respect to the Borrower.
"Applicable S&P Rating" means, at any time, (i) the rating issued
by S&P and then in effect with respect to the Borrower's senior secured
credit facility as evidenced by this Agreement or (ii) if the foregoing
rating is no longer in effect, the corporate credit rating issued by S&P and
then in effect with respect to the Borrower.
In addition to the provisions set forth above, if a split occurs
between the Applicable Xxxxx'x Rating and the Applicable S&P Rating that is
not more than one ratings category, then the Borrower's Status will be
determined by reference to the higher rating. If a split occurs between the
Applicable Xxxxx'x Rating and the Applicable S&P Rating that is two or more
ratings categories, the Borrower's Status will be determined by reference to
a rating one category below the higher rating.
The Applicable Eurocurrency Margin, the Applicable Base Rate Margin
and the Applicable Commitment Fee Percentage shall each be determined in
accordance with the foregoing table based on the Borrower's Status as
determined from its then-current Applicable Xxxxx'x Rating and Applicable S&P
Rating. The credit rating in effect on any date for the purposes of this
Schedule is that in effect at the close of business on such date. If at any
time the Borrower has no Applicable Xxxxx'x Rating and no Applicable S&P
Rating, Level VI Status shall exist.
