Exhibit 4.2
LOAN AND AGENCY AGREEMENT
among
INTERMAGNETICS GENERAL CORPORATION
IGC-APD CRYOGENICS INC.
IGC-POLYCOLD SYSTEMS, INC.
IGC-SUPERPOWER, LLC
MEDICAL ADVANCES, INC.
and
FIRST UNION NATIONAL BANK AND THE OTHER BANKS PARTY HERETO
with
FIRST UNION NATIONAL BANK, as Agent
and
THE CHASE MANHATTAN BANK, as Syndication Agent
and
KEYBANK NATIONAL ASSOCIATION, as Documentation Agent
September 19, 2001
LIST OF EXHIBITS:
Exhibit A Form of Borrowing Notice
Exhibit B Form of Covenant Compliance Certificate
Exhibit 12.4 Form of Assignment
LIST OF SCHEDULES:
Schedule A Applicable Margin for LIBO Rate Loans and Prime Rate Loans
Schedule 3.4(c) Borrowers' Investments
Schedule 5.16 Financial Covenants
Schedule 6.2 Existing Indebtedness
LOAN AND AGENCY AGREEMENT
THIS LOAN AND AGENCY AGREEMENT, dated as of September 19, 2001 (this
"Agreement"), is entered into by and among INTERMAGNETICS GENERAL CORPORATION, a
New York corporation ("IGC"), IGC-APD CRYOGENICS INC., a Pennsylvania
corporation ("APD"), MEDICAL ADVANCES, INC., a Wisconsin corporation ("MA"),
IGC-POLYCOLD SYSTEMS, INC., a Delaware corporation ("PSI") and IGC-SUPERPOWER,
LLC, a New York limited liability company ("SP") (each, a "Borrower" and
collectively, the "Borrowers"), the banking institutions signatories hereto and
such other institutions that hereafter become a "Bank" pursuant to Section 12.4
hereof (each, a "Bank" and collectively, the "Banks"), FIRST UNION NATIONAL
BANK, a national banking association ("First Union"), as agent for the Banks
under this Agreement (in such capacity, the "Agent"), THE CHASE MANHATTAN BANK,
a New York banking corporation ("Chase"), as syndication agent for the Banks
under this Agreement (in such capacity, the "Syndication Agent") and KEYBANK
NATIONAL ASSOCIATION, a national banking association ("Key"), as documentation
agent for the Banks under this Agreement (in such capacity, the "Documentation
Agent").
IN CONSIDERATION of the mutual covenants and undertakings herein
contained and intending to be legally bound hereby, the parties hereto agree as
follows:
I. CERTAIN DEFINITIONS
1.1. Definitions. As used in this Agreement, the following terms shall
have these meanings:
"Additional Amount" shall have the meaning set forth in Section 2.1.
"Affiliate" shall mean any Person: (1) which directly or indirectly
controls, or is controlled by, or is under common control with any Borrower or
any Subsidiary; (2) which directly or indirectly beneficially owns or holds ten
percent (10%) or more of any class of voting stock of any Borrower or any
Subsidiary; or (3) ten percent (10%) or more of the voting stock of which is,
directly or indirectly, beneficially owned or held by any Borrower or any
Subsidiary. The term "control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract, or
otherwise.
"Agreement" shall mean this Loan and Agency Agreement, as amended,
supplemented, or modified from time to time, and all exhibits and schedules
attached hereto.
"Aggregate Revolving Loan Commitment" shall have the meaning set forth
in Section 2.1.
"Applicable Margin" shall mean the margin applicable to LIBO Rate Loans
and Prime Rate Loans, determined in accordance with Schedule A hereto.
"Business Day" shall mean any day other than a Saturday, Sunday, or
other day on which commercial banks in New York are authorized or required to
close under the laws of the State of New York and, if the applicable day relates
to a LIBO Rate Loan, or notice with respect to a LIBO Rate Loan, a day on which
dealings in Dollar deposits are also carried on in the London interbank market
and banks are open for business in London ("London Business Day").
"Capitalized Lease" shall mean all lease obligations of any Person for
any property (whether real, personal or mixed) which have been or should be
capitalized on the books of the lessee in accordance with Generally Accepted
Accounting Principles.
"Closing Date" shall mean the date hereof.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and all rules and regulations with respect thereto in effect from
time to time.
"Commitment Percentage" shall mean with respect to each Bank, the
percentage set forth opposite its name on the signature page hereof.
"Covenant Compliance Certificate" shall mean a certificate, completed
by the Chief Financial Officer of IGC on behalf of the Borrowers and submitted
to the Agent, in the form of Exhibit B hereto.
"Current Assets" shall mean, at any time, all assets which, in
accordance with GAAP, should be classified as current assets of any Borrower.
"Default Rate" on any Loan shall mean the lower of (i) 2% per annum
above the Prime Rate; or (ii) the highest interest rate permitted by applicable
law.
"Dollars" shall mean the lawful currency of the United States of
America.
"EBITDA" shall mean, for any period, the sum (without duplication) of
(i) Net Income, (ii) provision for taxes based on income, (iii) Interest
Expenses, and (iv) to the extent Net Income has been reduced thereby,
amortization expense, depreciation expense and other expenses not ultimately
settled in cash, all as determined for the Borrowers on a consolidated basis in
accordance with GAAP.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as it may be amended from time to time.
"ERISA Affiliate" shall mean any corporation which is a member of the
same controlled group of corporations as any Borrower within the meaning of
Section 414(b) of the Code, or any trade or business which is under common
control with any Borrower within the meaning of Section 414(c) of the Code.
"Event of Default" shall have the meaning set forth in Section 7.1.
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"Environmental Laws" shall mean the Federal Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C.ss.ss.9601, et seq., the
Federal Resource Conservation and Recovery Act, 42 U.S.C.ss.ss.6901, et seq.,
the Hazardous Materials Transportation Act, 49 U.S.C.ss.ss.1801, et seq., all
other federal, state and local environmental or health laws applicable to any
Borrower or its business, operations or assets now or hereafter enacted, and all
rules, regulations, orders and publications adopted or promulgated pursuant
thereto from time to time.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded, if necessary, to the nearest l/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that if the day for which such rate is to be
determined is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day.
"Guaranty" shall mean any guaranty or other agreement to be a surety or
other contingent liability (other than any endorsement for collection or deposit
in the ordinary course of business), direct or indirect, with respect to any
obligation of another Person.
"Generally Accepted Accounting Principles" or "GAAP" shall mean
generally accepted accounting principles as in effect from time to time in the
United States, consistently applied.
"Governmental Authority" shall mean the federal, state, county or
municipal government or any department, agency, bureau or other similar type
body obtaining authority therefrom or created pursuant to any laws, including,
without limitation, Environmental Laws.
"Indebtedness" shall mean any obligation for borrowed money, including,
without limitation: (i) any obligation owed for all or any part of the purchase
price of property or other assets or for the cost of property or other assets
constructed or improvements thereto, other than accounts payable included in
current liabilities and incurred in respect of property purchased in the
ordinary course of business; and (ii) any Capitalized Lease obligation.
"Interest Expenses" shall mean, for any period, the gross interest
expense for the Borrowers on a consolidated basis for such period, as determined
in accordance with GAAP.
"Interest Period" shall mean, with respect to any LIBO Rate Loan, each
period commencing on the date any such Loan is made or, with respect to a Loan
being renewed, the last day of the next preceding Interest Period with respect
to a Loan, and ending on the numerically corresponding day (or, if there is no
numerically corresponding day, on the last day of the calendar month) in the
first, second, third or sixth calendar month thereafter as selected under the
procedures specified in Section 2.3, if the Banks are then offering LIBO Rate
Loans for such period; provided that each LIBO Rate Loan Interest Period which
would otherwise end on a day which is not a Business Day (or, for purposes of
Loans to be repaid on a London Business Day, such day is not a London Business
Day) shall end on the next succeeding Business Day (or London Business Day, as
appropriate) unless such next succeeding Business Day (or London Business Day,
as appropriate) falls in the next succeeding calendar month, in which case the
Interest Period shall end on the next preceding Business Day (or London Business
Day, as appropriate); provided, further, any LIBO Rate Loan of less than
$2,000,000 shall have an Interest Period of one month.
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"LIBO Rate" shall mean, for the applicable Interest Period, the rate,
determined by the Agent two London Business Days prior to the date of the
corresponding LIBO Rate Loan, at which the Agent is offered deposits in dollars
as reported on Telerate page 3750 as of 1l:00 A.M. London time in an amount and
for a period comparable to the amount and Interest Period of such Loan (or if
not so reported, then as determined by Agent from another recognized source of
interbank quotation). LIBO Rate shall be calculated on the basis of the number
of days elapsed in a year of 360 days.
"LIBO Rate Loans" shall mean Revolving Credit Loans accruing interest
based on the LIBO Rate.
"Lien" shall mean any lien, mortgage, security interest, chattel
mortgage, pledge or other encumbrance (statutory or otherwise) of any kind
securing satisfaction of an obligation, including any agreement to give any of
the foregoing, any conditional sales or other title retention agreement, any
lease in the nature thereof, and the filing of or the agreement to give any
financing statement under the Uniform Commercial Code of any jurisdiction or
similar evidence of any encumbrance, whether within or outside the United
States.
"Loan" or "Loans" shall mean a Revolving Credit Loan or Revolving
Credit Loans.
"Loan Documents" shall mean this Agreement, the Notes, and each other
agreement, document and instrument executed in connection herewith.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
ERISA Section 4001 (a)(3), which covers employees of any Borrower or any ERISA
Affiliate.
"Net Income" shall mean for any period, the consolidated net income (or
net loss) of the Borrowers, determined after provision for federal and state
taxes based on income and in accordance with GAAP, excluding:
(a) the proceeds of any insurance policy;
(b) any gain or loss arising from:
(1) the purchase, sale or other disposition of
any assets, other than in the ordinary
course of business (other than Current
Assets);
(2) any write-up of assets; or
(3) the acquisition of outstanding securities
representing Indebtedness of any Borrower,
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(c) any earnings, prior to the date of acquisition, of
any Person acquired in any manner,
(d) any earnings or losses of a successor to or
transferee of the assets of any Borrower prior to
becoming such successor or transferee;
(e) any deferred credit (or amortization of a deferred
credit) arising from the acquisition of any Person;
and
(f) any other item constituting an extraordinary gain or
loss under Opinions of the Accounting Principles
Board No. 30; provided, however, the aggregate amount
of any such extraordinary losses does not exceed
$5,000,000 in any given fiscal year.
Notwithstanding the foregoing, no charge against earnings will
be excluded from Net Income if any such charge represents either (i) a
disbursement of cash or (ii) a deferred disbursement of cash.
"Notes" shall mean the Revolving Credit Notes.
"Obligations" shall mean all now existing or hereafter arising debts,
obligations, covenants, and duties of payment or performance of every kind,
matured or unmatured, direct or contingent, owing, arising, due, or payable to
the Banks or the Agent by or from the Borrowers or any Subsidiary arising out of
this Agreement or any other Loan Document, including, without limitation, all
obligations to repay principal of and interest on all the Revolving Credit
Loans, and to pay interest, fees, costs, charges, expenses, professional fees,
and all sums chargeable to the Borrowers or any Subsidiary or for which any
Borrower or any Subsidiary is liable as indemnitor under the Loan Documents,
whether or not evidenced by any note or other instrument.
"Operating Lease" shall mean an operating lease as defined by Generally
Accepted Accounting Principles, excluding all leases the expenses for which may
be charged to a customer of any Borrower pursuant to the written terms of the
contract with such customer.
"Other Loan Agreements" shall mean all agreements, documents and
instruments evidencing Indebtedness of any Borrower (other than this Agreement
and any of the Loan Documents).
"PBGC" shall mean the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" shall mean, at any time, any Plan (including a
Multiemployer Plan), the funding requirements of which (under ERISA Section 302
or Code Section 412) are, or at any time within the six years immediately
preceding the time in question were, in whole or in part, the responsibility of
any Borrower or any ERISA Affiliate.
"Permitted Acquisitions" shall mean acquisitions by the Borrowers, or
any of them, of the assets and/or capital stock of other businesses and/or
Persons for which cash consideration (net of any cash acquired directly by the
Borrowers or retained by the entity that is acquired by the Borrowers as part of
the acquisition transaction) is paid in an amount not to exceed $20,000,000 in
the aggregate between the Closing Date and the Revolver Termination Date;
provided, however, if such cash consideration is funded by the incurrence of
Indebtedness by the Borrowers, or any of them, such Indebtedness must be in the
form of Revolving Credit Loans or other debt instrument(s) satisfactory to the
Banks; provided, further, the Loans shall only be used as cash consideration for
acquisitions by the Borrowers, or any of them, of the assets and/or capital
stock of another business and/or Person whose board of directors, members,
managers or other governing body has approved such acquisition (i.e., "friendly"
acquisitions).
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"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, company, business trust or
entity, or other entity of whatever nature.
"Plan" shall mean an employee benefit plan as defined in Section 3(3)
of ERISA, other than a Multiemployer Plan, whether formal or informal and
whether legally binding or not.
"Potential Default" shall mean an event, condition or circumstance that
with the giving of notice or lapse of time or both would become an Event of
Default.
"Prime Rate" shall mean, for any day, the rate announced by First Union
from time to time as its prime rate and is one of several interest rate bases
used by First Union. First Union lends at rates both above and below First
Union's Prime Rate, and Borrowers acknowledge that First Union's Prime Rate is
not represented or intended to be the lowest or most favorable rate of interest
offered by First Union. The Prime Rate shall be computed on the basis of the
actual number of days elapsed in a year of 360 days.
"Prime Rate Loans" shall mean Revolving Credit Loans accruing interest
based on the Prime Rate.
"Regulation" shall mean any statute, law, ordinance, regulation, order
or rule of any United States or foreign, federal, state, local or other
government or governmental body, including, without limitation, those covering
or related to banking, financial transactions, securities, public utilities,
environmental control, energy, safety, health, transportation, bribery, record
keeping, zoning, anti-discrimination, antitrust, wages and hours, employee
benefits, and price and wage control matters.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as it may be amended from time to time.
"Regulatory Change" shall mean any change after the date of this
Agreement in any Regulation (including Regulation D) or the adoption or making
after such date of any interpretations, directives or requests of or under any
Regulation (whether or not having the force of law) by any court or governmental
or monetary authority charged with the interpretation or administration thereof
applying to a class of banks including any one of the Banks but excluding any
foreign office of any Bank.
"Reportable Event" shall mean, with respect to a Pension Plan: (a) Any
of the events set forth in ERISA Sections 4043(b) (other than a reportable event
as to which the provision of 30 days' notice to the PBGC is waived under
applicable regulations) or 4063(a) or the regulations thereunder, (b) an event
requiring any Borrower or any ERISA Affiliate to provide security to a Pension
Plan under Code Section 401(a)(29) and (c) any failure by any Borrower or any
ERISA Affiliate to make payments required by Code Section 412(m).
6
"Required Banks" at any time shall mean Banks whose Revolving Loan
Commitments equal or exceed 51% of the total of such Revolving Loan Commitments
if no Loans are outstanding or, if Loans are outstanding, Banks whose
outstanding Loans equal or exceed 51% of the Loans; provided, however, that with
respect to Sections 5.1, 5.11, 5.14, 5.16, 6.1, 6.2, 6.3, 6.4, 6.6, 6.7, 6.8,
6.10 and 8.1 of this Agreement, the term "Required Banks" shall mean Banks whose
Revolving Loan Commitments equal 100% of the total of such Revolving Loan
Commitments if no Loans are outstanding or, if Loans are outstanding, Banks
whose outstanding Loans equal 100% of the Loans.
"Revolver Termination Date" shall have the meaning set forth in
Section 2.1.
"Revolving Loan Commitment" shall have the meaning set forth in
Section 2.1.
"Revolving Credit Loan" or "Loan" shall have the meaning set forth in
Section 2.1.
"Revolving Credit Note" shall have the meaning set forth in
Section 2.2.
"Senior Indebtedness" shall mean (i) Indebtedness, excluding accounts
payable and Subordinated Indebtedness; plus (ii) Capitalized Lease obligations.
"Subordinated Indebtedness" shall mean, at any time, all Indebtedness
of the Borrowers to "mezzanine" or similar lenders which is incurred with the
consent of Required Lenders and subordinated to the Obligations on terms
reasonably satisfactory to the Agent.
"Subsidiary" shall mean a corporation or other entity, the shares of
stock or other equity interests of which having ordinary voting power (other
than stock or other equity interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation are at the time owned, or the management of
which is otherwise controlled, directly or indirectly through one or more
intermediaries or both, by any Borrower.
"Taxes" shall have the meaning set forth in Section 2.8.
"Termination Event" shall mean, with respect to a Pension Plan: (a) a
Reportable Event, (b) the termination of a Pension Plan or the filing of a
notice of intent to terminate a Pension Plan, or the treatment of a Pension Plan
amendment as a termination under ERISA Section 4041(c), (c) the institution of
proceedings to terminate a Pension Plan under ERISA Section 4042 or (d) the
appointment of a trustee to administer any Pension Plan under ERISA Section
4042.
1.2. Accounting Terms. All accounting terms not specifically defined
herein shall be construed in accordance with Generally Accepted Accounting
Principles consistent with those applied in the preparation of the Financial
Statements referred to in Section 3.4, and all financial data submitted pursuant
to this Agreement shall be prepared in accordance with such principles.
7
II. THE CREDIT
2.1. Revolving Credit Loans.
(a) Subject to the terms and conditions hereof and in reliance
upon the representations, warranties and covenants contained herein, each Bank
agrees, severally and not jointly with the other Banks, to make revolving credit
loans (collectively called the "Revolving Credit Loans" and each individually a
"Revolving Credit Loan") to the Borrowers from time to time during the period
commencing on the Closing Date and ending three (3) years following the Closing
Date, or on any earlier date as provided in Section 2.6(b) or Section 8.1 hereof
(the "Revolver Termination Date"), in principal amounts not to exceed at any
time outstanding in the aggregate the amount set forth opposite the name of each
such Bank on the signature page hereof (each such amount being hereinafter
called such Bank's "Revolving Loan Commitment" and collectively, the Banks'
"Aggregate Revolving Loan Commitment"). All Loans shall be made by the Banks
simultaneously and pro rata in accordance with the Revolving Loan Commitments.
The failure of any one or more of the Banks to make Revolving Credit Loans in
accordance with its or their obligations shall not relieve the other Banks of
their several obligations under this Section 2.1(a), but in no event shall the
aggregate amount at any one time outstanding which any Bank shall be required to
lend under this Section 2.1 (a) exceed the amount of such Bank's Revolving Loan
Commitment at that time.
(b) The Borrowers may request Revolving Credit Loans to bear
interest at either the Prime Rate or LIBO Rate options described in Section 2.4.
The Revolving Credit Loans outstanding at any one time may involve any
combination of such interest rate options in such amounts as the Borrowers may
determine, subject to the terms and conditions hereof, including the requirement
concerning minimum Loan requests and the requirements that (i) no request may be
made which would require more than one interest rate option or more than one
Interest Period to apply to a single Revolving Credit Loan, and (ii) in the case
of LIBO Rate Loans, no LIBO Rate Loan may have an Interest Period extending
beyond the Revolver Termination Date.
(c) Notwithstanding the foregoing, the Borrowers shall not be
entitled to a Revolving Credit Loan if, after giving effect to such Revolving
Credit Loan, the unpaid principal amount of the Revolving Credit Loans to the
Borrowers exceeds the Aggregate Revolving Loan Commitment.
(d) Except for Revolving Credit Loans which exhaust the full
remaining amount of the Aggregate Revolving Loan Commitment and conversions
which result in the conversion of all Revolving Credit Loans subject to a
particular interest rate option, each of which may be in lesser amounts, each
Loan when made and each conversion of Loans of one type into Loans of another
type hereunder shall be in an amount at least equal to $500,000 or, if greater,
then in such minimum amount plus $100,000 multiples.
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(e) Within the limits of the Aggregate Revolving Loan
Commitment, the Borrowers may borrow, prepay (in accordance with Section 2.7)
and reborrow Revolving Credit Loans. All Revolving Credit Loans shall, in any
event, be repaid by the Borrowers on the Revolver Termination Date.
(f) If any principal of a LIBO Rate Loan shall be voluntarily
repaid (whether upon prepayment, reduction of the Aggregate Revolving Loan
Commitment after acceleration or for any other reason) or converted to a Prime
Rate Loan pursuant to Section 2.10 prior to the last day of the Interest Period
applicable to such LIBO Rate Loan or if the Borrowers fail for any reason to
borrow a LIBO Rate Loan after giving irrevocable notice pursuant to Section 2.3,
the Borrowers shall pay to each Bank, in addition to the principal and interest
then to be paid, such additional amounts as may be necessary to compensate each
Bank for all appropriate direct and indirect costs and losses (including losses
resulting from redeployment of prepaid or unborrowed funds at rates lower than
the cost of such funds to such Bank, and including lost profits incurred or
sustained by such Bank) as a result of such repayment or failure to borrow (the
"Additional Amount"). The Additional Amount (which each Bank shall take
reasonable measures to minimize) shall be specified in a written notice or
certificate delivered to the Borrowers by the Agent in the form provided by each
Bank sustaining such costs or losses. Such notice or certificate shall contain a
calculation in reasonable detail of the Additional Amount to be compensated and
shall be conclusive as to the facts and the amounts stated therein, absent
manifest error.
2.2. The Revolving Credit Notes. The Revolving Credit Loans made by
each Bank shall all be evidenced by a single promissory note of the Borrowers
(each such promissory note as it may be amended, extended, modified or renewed a
"Revolving Credit Note") in principal face amount equal to such Bank's Revolving
Loan Commitment, payable to the order of such Bank and otherwise in form and
substance satisfactory to the Banks. The Revolving Credit Notes shall be dated
the Closing Date, shall bear interest at the rate per annum and be payable as to
principal and interest in accordance with the terms hereof. The Revolving Credit
Notes shall mature upon the Revolver Termination Date, and upon maturity each
outstanding Revolving Credit Loan evidenced thereby shall be due and payable.
The Agent shall maintain records of all Loans evidenced by the Revolving Credit
Notes and of all payments thereon, which records shall be conclusive absent
manifest error.
2.3. Funding Procedures.
(a) Each request for a Revolving Credit Loan or the conversion
or renewal of an interest rate with respect to a Loan shall be made not later
than 1l:00 a.m. on a Business Day by delivery to the Agent of a written request
signed by IGC on behalf of the Borrowers or, in the alternative, a telephone
request followed promptly by written confirmation of the request, specifying the
date and amount of the Loan to be made, converted or renewed, selecting the
interest rate option applicable thereto, and in the case of LIBO Rate Loans,
specifying the Interest Period applicable to such Loan. The form of request
attached hereto as Exhibit A ("Borrowing Notice") shall be used to request the
making, conversion or renewal of Revolving Credit Loans unless otherwise agreed.
Each request shall be received not less than one (1) Business Day prior to the
date of the proposed borrowing, conversion or renewal in the case of Prime Rate
Loans, and three (3) London Business Days prior to the date of the proposed
borrowing, conversion or renewal in the case of LIBO Rate Loans. No request
shall be effective until actually received in writing by the Agent.
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(b) Upon receipt of a request for a Loan or the conversion of
a Loan, and if the conditions precedent provided herein shall be satisfied at
the time of such request the Agent promptly shall notify each Bank of such
request and of such Bank's ratable share of such Loan. Upon receipt by the Agent
the request for a Loan or the conversion of a Loan shall not be revocable by the
Borrowers.
(c) Not later than 11:00 A.M. on the date of each Loan, each
Bank shall make available (except as provided in clause (d) below) its ratable
share of such Loan, in immediately available funds, to the Agent at the address
set forth in Section 12.6 hereof or at such account in London as the Agent shall
specify to the Borrowers and the Banks. Unless the Agent knows that any
applicable condition specified herein has not been satisfied, the Agent will
make the funds so received from the Banks immediately available to the Borrowers
on the date of each Loan by a credit to the account of the Borrowers at the
Agent's aforesaid address.
(d) Unless the Agent shall have been notified by any Bank at
least one (1) Business Day prior to the date of the making, conversion or
renewal of any LIBO Rate Loan, or by 3:00 P.M. on the date a Prime Rate Loan is
requested, that such Bank does not intend to make available to the Agent such
Bank's portion of the total amount of the Loan to be made, converted or renewed
on such date, the Agent may assume that such Bank has made such amount available
to the Agent on the date of the Loan and the Agent may, in reliance upon such
assumption, make available to the Borrowers a corresponding amount. If and to
the extent such Bank shall not have made such funds available to the Agent, such
Bank agrees to repay the Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such amount is made
available to the Borrowers until the date such amount is repaid to the Agent, at
the Federal Funds Rate plus 50 basis points. If such Bank shall repay to the
Agent such corresponding amount such amounts so repaid shall constitute such
Bank's Loan for purposes of this Agreement. If such Bank does not repay such
corresponding amount forthwith upon the Agent's demand therefor, the Agent shall
promptly notify the Borrowers, and the Borrowers shall within sixty (60) days of
such notice pay such corresponding amount to the Agent, without any prepayment
penalty or premium, but with interest on the amount repaid, for each day from
the date such amount is made available to the Borrowers until the date such
amount is repaid to the Agent, at the rate of interest applicable at the time to
such Loan. Nothing herein shall be deemed to relieve any Bank of its obligation
to fulfill its Revolving Loan Commitment hereunder or to prejudice any rights
which the Borrowers may have against any Bank as a result of any default by such
Bank hereunder.
(e) If the Banks make a Loan on a day on which all or any part
of an outstanding Loan from the Banks is to be repaid, each Bank shall apply the
proceeds of its new Loan to make such repayment and only an amount equal to the
difference (if any) between the amount being borrowed and the amount being
repaid shall be made available by such Bank to the Agent as provided in
clause (c).
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2.4. Interest.
(a) Prime Rate. Each Prime Rate Loan shall bear interest on
the principal amount thereof from the date made until such Loan is paid in full
or converted, at a rate per annum equal to the Prime Rate plus the Applicable
Margin determined from time to time.
(b) LIBO Rate. Each LIBO Rate Loan shall bear interest on the
principal amount thereof from the date made until such Loan is paid in full,
renewed, or converted, at a rate per annum equal to the applicable LIBO Rate
plus the Applicable Margin determined from time to time.
(1) After receipt of a request for a LIBO Rate Loan,
the Agent shall proceed to determine the LIBO Rate to be applicable
thereto. The Agent shall give prompt notice by telephone or facsimile
to the Borrowers and to each Bank of the LIBO Rate thus determined in
respect of each LIBO Rate Loan or any change therein.
(2) In the event the Borrowers fail to, or are not
permitted to, select an Interest Period for any LIBO Rate Loan within
the time period and otherwise as provided herein, such Loan shall be
automatically converted into a Prime Rate Loan on the last day of the
Interest Period for such Loan.
(c) Intentionally Omitted.
(d) Renewals and Conversions of Loans. The Borrowers shall
have the right to convert Prime Rate Loans into LIBO Rate Loans, and vice versa,
and to renew LIBO Rate Loans from time to time, provided that: (i) IGC, on
behalf of the Borrowers, shall give the Agent notice of each permitted
conversion or renewal as provided in Section 2.3 hereof; (ii) upon receipt by
Agent of any notice contemplated by (i) of this Section 2.4(d), Agent shall
promptly give the Banks notice thereof, (iii) LIBO Rate Loans may be converted
or renewed only as of the last day of the applicable Interest Period for such
Loans; and (iv) no Interest Period may be renewed if on the proposed date of
conversion an Event of Default, or Potential Default exists or would thereby
occur. The Agent shall use its best efforts to notify the Borrowers of the
effectiveness of each such conversion or renewal, and the new interest rate
to-which the converted or renewed Loan is subject, as soon as practicable after
the conversion; provided, however, that any failure to give such notice shall
not affect the Borrowers' obligations or the Banks' rights and remedies
hereunder in any way whatsoever.
(e) Continuing Liability of Borrowers. The liability of the
Borrowers under this Section 2.4 shall continue to be effective or be
automatically reinstated, as the case may be, if at any time payment, in whole
or in part, of any of the payments to the Banks is rescinded or must otherwise
be restored or returned upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of any Borrower or any other Person, or upon or as
a result of the appointment of a custodian receiver, trustee or other officer
with similar powers with respect to any Borrower or other Person or any
substantial part of its property, or otherwise, all as though such payment had
not been made.
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2.5. Fees.
The Borrowers shall pay to the Agent for the ratable benefit
of the Banks, and as compensation for the Banks' Revolving Loan Commitments, a
fee (the "Commitment Fee") computed at the rate per annum equal to 15 basis
points (0.15%) on the average daily amount of the Aggregate Revolving Loan
Commitment accrued from and after the date hereof. The Commitment Fee shall be
payable in arrears on the first day of each January, April, July and October,
commencing October 1, 2001 (for the three month period or portion thereof ended
on the preceding day), and on the Revolver Termination Date. Payment shall be
made to the Agent on behalf of the Banks and the Agent shall promptly forward to
each Bank the portion of the Commitment Fee amount due such Bank. The Commitment
Fee shall be calculated on the basis of a 360 day year.
2.6. Reduction or Termination of Aggregate Revolving Loan Commitment.
(a) Voluntary. The Borrowers may at any time, on not less than
three (3) Business Days' written notice, terminate or permanently reduce the
Aggregate Revolving Loan Commitment pro rata among the Banks, provided that any
reduction shall be in the amount of $1,000,000 a multiple thereof and that no
such reduction shall cause the principal amount of Loans outstanding to exceed
the Aggregate Revolving Credit Commitment as reduced.
(b) Termination. In the event the Aggregate Revolving Loan
Commitment is terminated pursuant to the terms of this Agreement, the Revolver
Termination Date shall accelerate and the Borrowers shall, simultaneously with
such termination, repay the Prime Rate Loans and LIBO Rate Loans in accordance
with Section 2.8.
2.7. Voluntary Prepayments.
(a) Prime Rate Loans: On one (1) Business Day's notice to the
Banks, the Borrowers may, at their option, prepay the Prime Rate Loans in whole
at any time or in part from time to time, provided that each partial prepayment
shall be in the principal amount of $500,000 or, if greater, then in $100,000
multiples.
(b) LIBO Rate Loans. The Borrowers may, at their option,
prepay any LIBO Rate Loan, provided that if the Borrowers shall prepay a LIBO
Rate Loan prior to the last day of the applicable Interest Period, or shall fail
to borrow any LIBO Rate Loan on the date such Loan is to be made, the Borrowers
shall pay to each Bank, in addition to the principal and interest then to be
paid in the case of a prepayment, on such date of prepayment, the Additional
Amount incurred or sustained by such Bank as a result of such prepayment or
failure to borrow as provided in Section 2.1(f)).
2.8. Payments.
(a) LIBO Rate Loans. Accrued interest on LIBO Rate Loans with
Interest Periods of one, two or three months shall be due and payable on the
last day of such Interest Period. Accrued interest on LIBO Rate Loans with
Interest Periods of six months shall be due and payable at the end of the third
month and on the last day of such Interest Period.
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(b) Prime Rate Loans. Accrued interest on all Prime Rate Loans
shall be due and payable on the first Business Day of each month and upon the
Revolver Termination Date.
(c) Form of Payments; Application of Payments; Payment
Administration, Etc. Provided that no Event of Default or Potential Default then
exists, all payments and prepayments shall be applied to the Loans in such order
and to such extent as shall be specified by the Borrowers, by written notice to
the Agent at the time of such payment or prepayment. Except as otherwise
provided herein, all payments of principal, interest, fees, or other amounts
payable by the Borrowers hereunder shall be remitted to the Agent on behalf of
the Banks at the address set forth opposite its name on the signature page
hereof or at such office or account as the Agent shall specify to the Borrowers
and the Banks, in immediately available funds not later than 12:00 p.m. on the
day when due. If any payment is made by the Borrowers pursuant to the previous
sentence and is received by the Agent (i) at or prior to 12:00 p.m. on any
Business Day, then on that same Business Day the Agent shall distribute to each
Bank by wire transfer in immediately available funds each Bank's pro rata share
of such payment based upon such Bank's Commitment Percentage or (ii) later than
12:00 p.m. on any Business Day, then on the immediately following Business Day
the Agent shall distribute to each Bank by wire transfer in immediately
available funds each Bank's pro rata share of such payment based upon such
Bank's Commitment Percentage. Whenever any payment is stated as due on a day
which is not a Business Day, the maturity of such payment shall, except as
otherwise provided in the definition of "Interest Period" in Section 1.1, be
extended to the next succeeding Business Day and interest and commitment fees
shall continue to accrue during such extension. Each Borrower authorizes the
Agent to deduct from any account of any Borrower maintained at the Agent or over
which the Agent has control any amount payable under this Agreement, the Notes
or any other Loan Document which is not paid in a timely manner. The Agent's
failure to deliver any xxxx, statement or invoice with respect to amounts due
under this Section or under any Loan Document shall not affect the Borrowers'
obligations to pay any installment of principal, interest or any other amount
under this Agreement when due and payable.
(d) Net Payments. All payments made to the Banks and the Agent
by the Borrowers hereunder, under any Note or under any other Loan Document will
be made without set-off, counterclaim or other defense. All such payments will
be made free and clear of, and without deduction or withholding for, any taxes,
assessments or other charges lawfully levied or assessed upon any Borrower,
including, without limitation, real and personal property taxes, assessments and
charges and all franchise, income, employment, social security benefits,
withholding and sales taxes, each of which shall be paid, when due and as
applicable, by each Borrower. If any tax by any governmental authority is or may
be imposed on or as a result of any transaction between any Borrower and Agent
or any Bank which Agent or any Bank may be required to withhold or pay or if any
taxes, assessments, or other charges remain unpaid after the date fixed for
their payment, Agent may without notice to Borrowers pay the taxes, assessments
or other charges and each Borrower hereby indemnifies and holds Agent and each
Bank harmless in respect thereof. Agent will not pay any taxes, assessments or
charges to the extent that any Borrower has contested or disputed those taxes,
assessments or charges in good faith, by expeditious protest, administrative or
judicial appeal or similar proceeding provided that any related tax lien is
stayed. The amount of any payment by Agent under this Section 2.8(d) shall be
charged to Borrowers as a Revolving Credit Loan and added to the Obligations
and, until Borrowers shall furnish Agent with an indemnity therefor (or supply
Agent with evidence satisfactory to Agent that due provision for the payment
thereof has been made), Agent may hold without interest any balance standing to
Borrowers' credit.
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2.9. Changes in Circumstances: Yield Protection.
(a) If any Regulatory Change or compliance by the Banks with
any request made after the date of this Agreement by the Board of Governors of
the Federal Reserve System or by any Federal Reserve Bank or other central bank
or fiscal, monetary or similar authority (in each case whether or not having the
force of law) shall:
(i) impose, modify or make applicable any reserve,
special deposit, Federal Deposit Insurance Corporation premium
or similar requirement or imposition against assets held by,
or deposits in or for the account of, or loans made by, or any
other acquisition of funds for loans or advances by, the
Banks;
(ii) impose on the Banks any other condition
regarding the Notes;
(iii) subject the Banks to, or cause the withdrawal
or termination of any previously granted exemption with
respect to, any tax (including any withholding tax but not
including any income tax not currently causing the Banks to be
subject to withholding) or any other levy, impost, duty,
charge, fee or deduction on or from any payments due from the
Borrowers; or
(iv) change the basis of taxation of payments from
the Borrowers to the Banks (other than by reason of a change
in the method of taxation of a Bank's net income);
and the result of any of the foregoing events is to increase the cost to a Bank
of making or maintaining any Loan or to reduce the amount of principal, interest
or fees to be received by the Bank hereunder in respect of any Loan, the Agent
will immediately so notify the Borrowers. If a Bank determines in good faith
that the effects of the change resulting in such increased cost or reduced
amount cannot reasonably be avoided or the cost thereof mitigated, then upon
notice by the Agent to the Borrowers, the Borrowers shall pay to such Bank on
each interest payment date of the Loan, such additional amount as shall be
necessary to compensate the Bank for such increased cost or reduced amount.
(b) If any Bank shall reasonably determine that any Regulation
regarding capital adequacy or the adoption of any Regulation regarding capital
adequacy, which Regulation is applicable to banks (or their holding companies)
generally and not such Bank (or its holding company) specifically, or any change
therein, or any change in the interpretation or administration thereof by any
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by such Bank (or its
holding company) with any such request or directive regarding capital adequacy
(whether or not having the force of law) of any such authority, central bank or
comparable agency, has the effect of reducing the rate of return on such Bank's
capital as a consequence of its obligations hereunder to a level below that
which such Bank could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's policies with respect to capital
adequacy) by an amount reasonably deemed by such Bank to be material, the
Borrowers shall promptly pay to the Agent for the account of such Bank upon the
demand of such Bank, such additional amount or amounts as will compensate such
Bank for such reduction.
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(c) If the Agent shall reasonably determine (which
determination will be made after consultation with any Bank requesting same and
shall be, in the absence of fraud or manifest error, conclusive and binding upon
all parties hereto) that by reason of abnormal circumstances affecting the
interbank eurodollar or applicable eurocurrency market, adequate and reasonable
means do not exist for ascertaining the LIBO Rate to be applicable to the
requested LIBO Rate Loan or that eurodollar or eurocurrency funds in amounts
sufficient to fund all the LIBO Rate Loans are not obtainable on reasonable
terms, the Agent shall give notice of such inability or determination by
telephone to the Borrowers and to each Bank at least two (2) Business Days prior
to the date of the proposed Loan and thereupon the obligations of the Banks to
make, convert other Loans to, or renew such LIBO Rate Loan shall be excused,
subject, however, to the right of the Borrowers at any time thereafter to submit
another request.
(d) Determination by a Bank for purposes of this Section 2.9
of the effect of any Regulatory Change or other change or circumstance referred
to above on its costs of making or maintaining Loans or, on amounts receivable
by it in respect of the Loans and of the additional amounts required to
compensate such Bank in respect of any additional costs, shall be made in good
faith and shall be evidenced by a certificate, signed by an officer of such Bank
and delivered to the Borrowers, as to the fact and amount of the increased cost
incurred by or the reduced amount accruing to the Bank owing to such event or
events. Such certificate shall be prepared in reasonable detail and shall be
conclusive as to the facts and amounts stated therein, absent manifest error.
(e) The affected Bank will notify the Borrowers of any event
occurring after the date of this Agreement that will entitle the Bank to
compensation pursuant to this Section as promptly as practicable after it
obtains knowledge thereof and determines to request such compensation. Said
notice shall be in writing, shall specify the applicable Section or Sections of
this Agreement to which it relates and shall set forth the amount of amounts
then payable pursuant to this Section. The Borrowers shall pay such Bank the
amount shown as due on such notice within 10 days after their receipt of the
same.
2.10. Illegality. Notwithstanding any other provision in this
Agreement, if the adoption of any applicable Regulation, or any change therein,
or any change in the interpretation or administration thereof by any
Governmental Authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by the Banks with any
request or directive (whether or not having the force of law) of any such
authority, central bank, or comparable agency shall make it unlawful or
impossible for the Banks to (1) maintain their Revolving Loan Commitments, then
upon notice to the Borrowers by the Agent, the Revolving Loan Commitments shall
terminate; or (2) maintain or fund their LIBO Rate Loans, then upon notice to
the Borrowers of such event, the Borrowers' outstanding LIBO Rate Loans shall be
converted into Prime Rate Loans.
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2.11. Joint and Several Liability. Each Borrower, on a joint and
several basis, unconditionally and irrevocably guarantees to each Bank the due,
prompt and complete payment by each other Borrower of its payment of principal
of and interest on each Revolving Credit Loan, when and as the same shall become
due and payable, and any and all other amounts with respect to which any other
Borrower is obligated under any Loan Document. The obligation of each Borrower
under this Section 2.11 is a guaranty of payment and not of collectability and
is no way conditioned or contingent upon any attempt to collect from or enforce
compliance by any other Borrower or upon any other event, contingency or
circumstance whatsoever. The obligation of each Borrower under this Section
shall be primary, absolute and unconditional, shall not be subject to any
counterclaim, set-off, deduction, diminution, abatement, recoupment, suspension,
deferment, reduction, or defense based upon any claim any Borrower or any other
Person may have against any other Borrower or any other Person, and shall remain
in full force and effect without regard to, and shall not be released,
discharged or in any way affected by, any circumstance or condition whatsoever
(whether or not any Borrower shall have any knowledge or notice thereof). No
Borrower shall be subrogated to the rights of the Banks in respect of any
payment or other obligation with respect to which an amount has been payable by
such Borrower under this Section 2.11 and no Borrower shall seek to exercise any
rights of subrogation, reimbursement or indemnity arising from payments made by
it pursuant to the provisions of this Section 2.11 until all Obligations have
been paid in full and the Revolving Loan Commitments have been terminated.
2.12. Optional Cash Management Facility. Should the Borrowers, or any
of them, utilize the cash management services of First Union, the Banks agree to
allow $500,000 of the Revolving Loan Commitment of First Union to be dedicated
to fund, on a daily basis, the cash management requirements of such Borrower(s),
without allocating such borrowings among the Banks on a pro rata basis;
provided, however, the minimum amount to be utilized by such Borrower(s) for
cash management under this Section 2.12 shall be $100,000 and the interest rate
applicable to such amounts shall be the interest rate applicable to Prime Rate
Loans.
III. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to execute and deliver this Agreement and
to make the Loans available to the Borrowers, the Borrowers, jointly and
severally, represent and warrant to the Banks that:
3.1. Good Standing of the Borrowers: Authorization. Each of the
Borrowers is duly incorporated, validly existing and in good standing in its
jurisdiction of incorporation or formation. Each Borrower is duly qualified as a
foreign corporation or limited liability company and authorized to do business
in all other jurisdictions wherein the nature of its business or property makes
such qualification necessary except where the failure to so qualify would not
have a material adverse effect on the financial condition of such Borrower, and
has the corporate or limited liability company power to own its properties and
to carry on its business as now conducted. The execution, delivery and
performance of this Agreement and the Loan Documents have been duly authorized
by all necessary corporate or limited liability company proceedings on the part
of each of the Borrowers.
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3.2. Compliance with Laws and Other Agreements. Each Borrower is in
compliance in all material respects with all Other Loan Agreements and
Regulations applicable to such Borrower and has not received, and has no
knowledge of, any order or notice of any governmental investigation or of any
violation or claim of violation of any Other Loan Agreement or Regulation that
might have a materially adverse effect on any Borrower.
3.3. No Conflict: Governmental Approvals. The execution, delivery, and
performance of this Agreement and each of the Loan Documents will not (i)
conflict with, violate, constitute a default under, or result in a breach of any
provision of any applicable law, rule, regulation, judgment decree, order,
instrument or other agreement, or (ii) conflict with or result in a breach of
any provision of the certificate or articles of incorporation or by-laws or
certificate of formation or operating agreement of any Borrower. No
authorization, permit, consent or approval of or other action by, and no filing,
registration or declaration with, any governmental authority or regulatory body
is required to be obtained or made by any Borrower for the due execution and
performance of this Agreement or any of the Loan Documents, except such as have
been duly obtained or made prior to the Closing Date and are in full force and
effect as of the Closing Date (copies of which have been delivered to the Banks
on or before the Closing Date).
3.4. Financial and Other Information Regarding Borrowers.
(a) The Borrowers have delivered to the Banks true, correct
and complete copies of the consolidated balance sheets of IGC and its
consolidated Subsidiaries as of May 27, 2001, and related statements of income
for the period then ended, together with notes thereto and the unqualified
opinion thereon, dated July 17, 2001, of Pricewaterhouse Coopers LLP. The
Borrowers shall, upon request by the Agent, supply the Banks with true and
correct copies of consolidating balance sheets of IGC and its consolidated
subsidiaries for the aforementioned periods. Those financial statements and the
notes thereto (together, the "Financial Statements") present fairly the
financial position of IGC and its consolidated Subsidiaries as at such dates and
the results of their operations for the periods then ended in conformity with
GAAP.
(b) As of the date of this Agreement, no Borrower has any
Indebtedness other than as shown in the Financial Statements.
(c) Except as set forth on Schedule 3.4(c) as of the date of
this Agreement no Borrower has any "investment" (as such term is defined under
GAAP), whether by stock purchase, capital contribution, loan, advance, purchase
of property or otherwise, in any Person.
3.5. Taxes. No Borrower is delinquent in the payment of any material
income, property or other tax, except for any delinquency in the payment of a
tax which is contested in good faith by a Borrower and for which appropriate
reserves have been established in accordance with GAAP.
3.6. Liens and Guaranties.
(a) All properties and assets of each Borrower are owned by
that Borrower free and clear of all Liens except (i) those for taxes or other
government charges either not yet delinquent or the nonpayment of which is
permitted by Section 3.5 of this Agreement; (ii) those not arising in connection
with Indebtedness that do not materially impair the use or value of the
properties or assets of that Borrower in the conduct of its businesses; (iii)
Liens whose release and termination is evidenced by the Borrowers' delivery to
the Banks of appropriate documents on the Closing Date; and (iv) Liens permitted
under the Loan Documents.
17
(b) Except as permitted hereby, no Borrower is obligated under
any Guaranty.
3.7. Material Adverse Changes. Since May 27, 2001, there has not been
any material adverse change in the business, operations, properties or financial
position of any of the Borrowers. No Borrower knows of any fact (other than
matters of a general economic or political nature) which materially adversely
affects, or, so far as that Borrower can now reasonably foresee, will materially
adversely affect, the business, operations, properties or financial position of
any Borrower or the performance by any Borrower of its obligations under this
Agreement and the other Loan Documents.
3.8. Compliance with Federal Reserve Board Regulations. No part of the
proceeds of the Loans will be used, directly or indirectly, for the purpose of
purchasing or carrying any "margin security" within the meaning of Regulation U
of the Board of Governors of the Federal Reserve System (12 C.F.R. 221), or for
the purpose of purchasing or carrying or trading in any securities under such
circumstances as to involve any Borrower in a violation of Regulation X of the
said Board (12 C.F.R. 224). The assets of the Borrowers do not include any
margin securities, and no Borrower has any present intention of acquiring any
margin security.
3.9. ERISA. The provisions of each Plan maintained by any Borrower
complies in all material respects with all applicable requirements of ERISA and
of the Code, and with all applicable rulings and regulations issued under the
provisions of ERISA and the Code setting forth those requirements. No Reportable
Event has occurred with respect to any Plan; no Plan to which Section 4021 of
ERISA applies has been terminated and no Plan has incurred any liability to PBGC
as provided in Section 4062,4063 and 4064 of ERISA; no Plan has been involved in
any prohibited transaction within the meaning of Section 406 of ERISA or Section
4975 of the Code; and no Termination Event has occurred.
3.10. Pending Litigation. There are no actions, suits, proceedings or
investigations pending, or, to the knowledge of any of the Borrowers, threatened
against or affecting any Borrower, before any court, arbitrator or
administrative or governmental body which, in the aggregate, might adversely
affect any action taken or to be taken by any Borrower under this Agreement and
the other Loan Documents or which, in the aggregate, might materially adversely
affect the business, operations, properties or financial position of any
Borrower, or the ability of any Borrower to perform its obligations under this
Loan Agreement and the other Loan Documents.
3.11. Valid, Binding and Enforceable. This Agreement and the Loan
Documents have been duly and validly executed and delivered by the parties
thereto (other than the Banks) and constitute the valid and legally binding
obligations of such parties enforceable in accordance with their respective
terms, except as enforcement of this Agreement, and the Loan Documents may be
limited by bankruptcy, insolvency or other laws of general application relating
to or affecting the enforcement of creditors' rights and except as enforcement
is subject to general equitable principles.
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3.12. No Untrue Statements. To the Borrowers' knowledge, neither this
Agreement, the Loan Documents nor any other document, certificate or statement
furnished or to be furnished by the Borrowers or by any other party to the Banks
in connection herewith contains, or at the time of delivery will contain, any
untrue statement of a material fact or omits or will omit to state a material
fact necessary in order to make the statements contained herein and therein not
misleading.
IV. CONDITIONS PRECEDENT
4.1. Conditions Precedent to All Loans. The obligation of each Bank to
make any Loan is conditioned upon the following:
(a) Documents. The Borrowers shall have delivered and the
Agent shall have received a Borrowing Notice and all such other documents as may
be reasonably requested by the Banks; provided, that if the Banks should request
any such additional documents, the Borrowers shall have thirty (30) days
following such request in which to deliver such additional documents to the
Agent.
(b) Covenants; Representations. Each Borrower shall be in
compliance with all covenants, agreements and conditions in each Loan Document
and each representation and warranty contained in each Loan Document shall be
true with the same effect as if such representation or warranty had been made on
the date such Loan is made or issued.
(c) Defaults. Immediately prior to and after giving effect to
such transaction, no Event of Default or Potential Default shall exist.
4.2. Conditions Precedent to First Loan. The obligation of each Bank to
make the first Loan hereunder is conditioned upon the following:
(a) Articles, Bylaws. The Agent shall have received copies of
the Articles or Certificates of Incorporation and Bylaws or, if applicable,
certificate of formation and operating agreement of each of the Borrowers,
certified by the Corporate Secretary or Assistant Secretary of each such entity;
together with a Certificate of Good Standing for each Borrower from any
jurisdiction where the nature of its business or the ownership of its properties
requires such qualification except where the failure to be so qualified would
not have a material adverse effect on the business, operations, assets or
condition (financial or otherwise) of the Borrowers and their Subsidiaries taken
as a whole.
(b) Evidence of Authorization. The Agent shall have received
copies, certified by the Corporate Secretary or Assistant Corporate Secretary of
each Borrower, of documentation that authorizes all corporate or other action
taken by each Borrower to execute, deliver and perform the Loan Documents and
that authorizes the Revolving Credit Loans, together with such other related
papers as the Banks shall reasonably require.
(c) Incumbency. The Agent shall have received a certificate
signed by the Secretary or Assistant Secretary of each signatory to the Loan
Documents other than a Bank, together with the true signature of the officer or
officers authorized to execute and deliver the Loan Documents and certificates
thereunder, upon which the Banks shall be entitled to rely conclusively until
the Agent shall have received a further certificate of the appropriate secretary
or assistant secretary amending the prior certificate and submitting the
signature of the officer or officers named in the new certificate as being
authorized to execute and deliver Loan Documents and certificates thereunder,
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(d) Notes. Each Bank shall have received an executed Note
payable to the order of such Bank.
(e) Documents. The Agent shall have received all certificates,
instruments and other documents then required to be delivered pursuant to any
Loan Documents, in each instance in form and substance reasonably satisfactory
to the Agent and the Banks.
(f) Consents. The Borrowers shall have provided to the Agent
evidence satisfactory to the Agent that all governmental, shareholder, member
and third party consents and approvals necessary in connection with the
transactions contemplated hereby have been obtained and remain in effect.
(g) Other Agreements. The Borrowers shall have executed and
delivered each other Loan Document required hereunder.
(h) Borrowing Notice. The Borrowers shall have delivered and
the Agent shall have received a Borrowing Notice, which shall, at a minimum, set
forth the information regarding the conversion of the Existing Indebtedness into
a Prime Rate Loan or a LIBO Rate Loan.
(i) Fees. The Borrowers shall have paid all fees required as
of the Closing Date by Section 2.5 hereof.
(j) Legal Opinion. The Agent shall have received a favorable
written opinion of general counsel to the Borrowers, which shall be addressed to
the Banks and be dated the date of the first Loan, in form and substance
satisfactory to the Banks.
V. AFFIRMATIVE COVENANTS
The Borrowers, jointly and severally, hereby covenant and agree that,
from and after the date hereof and so long as the Revolving Loan Commitments are
in effect or any Obligations remain unpaid or outstanding, unless the Required
Banks have otherwise consented in writing, the Borrowers shall do the following:
5.1. Use of Proceeds. Use the proceeds of the Loans only for working
capital and Permitted Acquisitions.
5.2. Accounting Records, Reports and Financial Statements. Furnish to
the Agent:
(a) Within one hundred and five (105) days after the end of
each fiscal year, IGC's Form 10-K filed with the Securities and Exchange
Commission for that year, including consolidated financial statements of IGC and
the other Borrowers. Such financial statements shall present fairly the
consolidated financial position of IGC and the other Borrowers as of the close
of such year and the results of its operations and changes in its financial
position during such year, in accordance with GAAP, and shall be audited and
accompanied by the unqualified opinion of an independent public accountant
acceptable to the Banks. With each Form 10-K delivered to the Banks, the
Borrowers shall, upon request by the Agent, supply, as supplemental information,
unaudited consolidating financial statements of the Borrowers used in the
preparation of such Form 10-K;
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(b) Within sixty (60) days after the end of each fiscal
quarter, IGC's Form 10-Q filed with the Securities and Exchange Commission for
that quarter, including unaudited consolidated financial statements of IGC and
the other Borrowers. Such financial statements shall present fairly the
financial position of the Borrowers as of the end of such quarter and the
results of their operations and changes in their financial position during each
quarter in accordance with GAAP. With each Form 10-Q delivered to the Banks,
IGC, on behalf of all Borrowers, shall, upon request by the Agent, supply, as
supplemental information, consolidating financial statements of the Borrowers
used in the preparation of such Form 10-Q;
(c) With reasonable promptness, and when reasonably requested
by the Banks unless any Borrower's compliance with such request would conflict
with any law, regulation or contractual obligation applicable to such Borrower,
copies of all financial reports, statements and returns which each Borrower
shall file with any federal or state department, commission, board, bureau,
agency or instrumentality and any report, statement or return delivered by any
Borrower to any supplier or other creditor which is material to that Borrower's
operations or financial condition;
(d) Within sixty (60) days after the end of each fiscal
quarter, a complete and fully-executed Covenant Compliance Certificate;
(e) With reasonable promptness but in any event within ten
(10) days after the filing by any Borrower of a Form 8-K with the Securities and
Exchange Commission, a copy of any such filing; and
(f) All such other documents and information as may be
reasonably requested by the Banks, within thirty (30) days following any such
request by the Banks.
5.3. Ordinary Course of Business: Records. Conduct its business only in
the ordinary course and keep accurate and complete books and records of its
assets, liabilities and operations consistent with sound business practices and
in accordance with GAAP.
5.4. Information for the Agent. Make available during normal business
hours for inspection by the Agent and any Bank, or their designated
representatives, any of their books and records when reasonably requested by the
Agent or any Bank to do so, and furnish the Agent and any Bank with any
information reasonably requested regarding their operations, business affairs
and financial condition within a reasonable time after the Agent or any Bank
gives notice of its request therefor. In particular, and without limiting the
foregoing, each Borrower shall permit, during normal business hours,
representatives of the Agent's Audit Department or any Bank to make such
periodic inspections of its books, records and assets as such representatives
deem necessary and proper. The first two sentences of this Section 5.4
notwithstanding, no Borrower shall be required to disclose any information which
such Borrower is required by law, regulation or contractual obligation to
maintain confidential, and the Agent and each Bank shall use its best efforts to
coordinate the timing of any inspections made pursuant to this Section in order
to minimize any resultant disruption of the Borrowers' businesses.
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5.5. Insurance. Carry and maintain, in full force and effect at all
times with financially sound and reputable insurers: (i) all workers'
compensation or similar insurance as may be required under the laws of any
jurisdiction applicable to such Borrower; (ii) public liability insurance
against claims for personal injury, death or property damage suffered upon, in
or about any premises occupied by them or occurring as a result of the
ownership, maintenance or operation by them of any automobile, truck or other
vehicle or as a result of the use of products manufactured, constructed or sold
by them, or services rendered by them; (iii) business interruption insurance
covering risk of loss as a result of the cessation for all or any part of one
year of any substantial part of the business conducted by them; (iv) insurance
against such other risks as are usually insured against by business entities of
established reputation engaged in the same or similar businesses and similarly
situated. The insurance specified in clauses (ii), (iii), and (iv) shall be
maintained in such amounts (and with co-insurance and deductibles) as such
insurance is usually carried by business entities of established reputation
engaged in the same or similar business and similarly situated.
5.6. Maintenance. Maintain their equipment, real property and other
properties in good condition and repair (normal wear and tear excepted) and pay
and discharge the cost of repairs thereto or maintenance thereof other than idle
equipment no longer used or useful, in connection with the Borrowers'
operations.
5.7. Taxes. Pay all taxes, assessments, charges and levies imposed upon
them or on any of their property, or which they are required to withhold and pay
over, and provide evidence of payment thereto to the Banks if the Banks so
request, except where contested in good faith by lawful and appropriate
proceedings and where adequate reserves therefor have been set aside on their
books; provided, however, that each Borrower shall pay all such taxes,
assessments, charges and levies forthwith whenever foreclosure on any lien which
attaches or security therefor appears imminent.
5.8. Leases. Pay all rent or other sums required by every lease to
which any Borrower is a party as the same become due and payable; perform all
their obligations as tenant or lessee thereunder except where contested in good
faith by lawful and appropriate proceedings and where adequate reserves therefor
have been set aside; and keep all such leases at all times in full force and
effect during the terms thereof.
5.9. Existence; Certain Rights; Laws. Do all things necessary to
preserve and keep in full force and effect the existence, licenses, rights,
patents, trademarks, trade names and franchises of each Borrower (except that
any Borrower may merge into or consolidate with another Borrower as long as the
Agent receives written notice prior thereto) and comply with all present and
future laws, ordinances, rules and regulations applicable to them in the
operation of their businesses; provided, however, that a Borrower may terminate
any patent, trademark or license and other rights conferred by jurisdictions
outside the United States as long as such Borrower's business judgment requires
such termination.
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5.10. Notice of Litigation. Give immediate notice to the Agent of the
institution of any litigation or any administrative proceeding involving any
Borrower which might materially and adversely affect the operation, financial
condition, property or business of any Borrower, individually, or the Borrowers
as a whole.
5.11. Indebtedness. Jointly and severally, pay or cause to be paid when
due (or within applicable grace periods) all Indebtedness of the Borrowers.
5.12. Notice of Events of Default. Give immediate notice to the Agent
if any Borrower becomes aware of the occurrence of any Event of Default or
Potential Default, or of the failure of any Borrower to observe or perform any
of the conditions or covenants to be observed or performed by it under this
Agreement.
5.13. ERISA. Maintain each Plan in compliance with all applicable
requirements of ERISA and of the Code and with all applicable rulings and
regulations issued under the provisions of ERISA and of the Code. As promptly as
practicable (but in any event not later than ten days) after any Borrower
receives from the PBGC a notice of intent to terminate any Plan or to appoint a
trustee to administer any Plan, after a Borrower has notified the PBGC that any
Reportable Event has occurred, or after a Borrower has filed a notice of intent
to terminate with the PBGC with respect to any Plan, a certificate of the chief
executive officer of that Borrower shall be furnished to the Agent setting forth
the details with respect to the events resulting in such Reportable Event, as
the case may be, and the action which such Borrower proposes to take with
respect thereto, together with a copy of the notice of intent to terminate or to
appoint a trustee from the PBGC, of the notice of such Reportable Event or of a
Borrower's notice of intent to terminate, as the case may be.
5.14. Deposit Accounts. Use the Banks as their primary depository
institutions to the extent reasonably feasible.
5.15. Management. Furnish to the Agent within thirty (30) days of any
election or appointment of officers or directors, written notice of any change
in the persons who from time to time become officers and directors of each
Borrower.
5.16. Financial Covenants. Observe the financial covenants set forth on
Schedule 5.16 hereto; provided, however, that the financial covenants set forth
in Schedule 5.16 shall supersede any financial covenants set forth in any other
agreement between First Union and any of the Borrowers.
VI. NEGATIVE COVENANTS
The Borrowers, jointly and severally, hereby covenant and agree that,
from and after the date hereof, and so long as the Revolving Loan Commitments
are in effect or any Obligations remain unpaid or outstanding, they will not do
any one or more of the following without first obtaining the written consent of
the Required Banks:
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6.1. Fundamental Corporate Changes.
(a) Enter into any merger, consolidation, reorganization or
recapitalization, or dissolve, provided that any Borrower may merge into or
consolidate with another Borrower;
(b) Sell, transfer, lease or otherwise dispose of all or
(except in the ordinary course of business) any material part of any Borrower's
assets or any significant product line or process of any Borrower; or
(c) Have any Subsidiary; provided, however, that IGC may have
the other Borrowers as its Subsidiaries and any Borrower may have a Subsidiary
as long as such Subsidiary becomes a party to this Agreement, and subject to its
terms.
6.2. Indebtedness. Incur, create, assume or have any Indebtedness
except (i) existing Indebtedness set forth on Schedule 6.2 attached hereto, (ii)
Indebtedness incurred pursuant to this Agreement, and (iii) purchase money
Indebtedness for the acquisition of non-current assets following the date of
this Agreement; provided, however, that the aggregate of any Indebtedness
incurred from time to time pursuant to clauses (i) and (iii) of this Section
shall not exceed $20,000,000.
6.3. Liens. Create or allow any Lien to be on or otherwise affect any
Borrower's property or assets except:
(a) Liens in favor of the Agent on behalf of the Banks;
(b) Liens for taxes, assessments and other governmental
charges incurred in the ordinary course of business which are not yet due and
payable or which are being properly contested in good faith by lawful and
appropriate proceedings;
(c) Pledges or deposits made in the ordinary course of
business to secure payment of worker's compensation or to participate in any
fund in connection with worker's compensation, unemployment insurance or other
social security obligations;
(d) Good faith pledges or deposits made in the ordinary course
of business to secure performance of tenders, contracts (other than for the
repayment of Indebtedness) or leases or to secure statutory or surety, appeal,
indemnity, performance or other similar bonds required in the ordinary course of
business;
(e) Liens of mechanics, materialmen, warehousemen, carriers or
other similar liens, securing obligations incurred in the ordinary course of
business that are not yet due and payable or are being contested in good faith
by appropriate and lawful proceedings;
(f) Liens, if any, otherwise expressly permitted by this
Agreement.
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(g) Liens in connection with or resulting from judgments
permitted pursuant to Section 7.16 of this Agreement.
6.4. Guaranties. Except for a guaranty of Indebtedness of another
Borrower or other guaranties of indebtedness not to exceed $l,000,000 in the
aggregate, directly or indirectly make any Guaranty.
6.5. Sales and Lease-Backs. Sell, transfer or otherwise dispose of any
property, real or personal, now owned or hereafter acquired, with the intention
of directly or indirectly taking back a lease on such property which
cumulatively in the aggregate has a fair market value in excess of $10,000,000.
6.6. Loans; Investments. Purchase, invest in, or make any loan in the
nature of an investment in the stocks, bonds, notes or other securities or
evidence of Indebtedness of any Person (other than another Borrower) or make any
loan or advance to or for the benefit of any Person (other than to another
Borrower), except for (i) short term (less than one year) loans and advances to
employees in the ordinary course of business, provided that at no time after the
Closing Date and prior to the Revolver Termination Date shall the aggregate
amount of such loans and advances together with any loans or advances made
pursuant to Section 6.6(ii) of this Agreement exceed $10,000,000, (ii) loans and
advances to executives of any Borrower for purposes of buying shares of stock in
such Borrower, provided that no Event of Default has occurred and is continuing
and that at no time after the Closing Date and prior to the Revolver Termination
Date shall the aggregate amount of such loans and advances together with any
loans or advances made pursuant to Section 6.6(i) of this Agreement exceed
$10,000,000, (iii) short term obligations of the Treasury of the United States
of America; (iv) certificates of deposit issued by banks with shareholders'
equity of at least $100,000,000; (v) repurchase agreements not exceeding 29 days
in duration by banks with shareholders' equity of at least $100,000,000; (vi)
notes and other instruments generally known as "commercial paper" which arise
out of current transactions, which have maturities at the time of issuance
thereof not exceeding nine months and which have, at the time of such purchase,
investment or other acquisition, either of the two highest credit ratings of
Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc.; (vii) other
investments in an aggregate amount not to exceed $5,000,000 at any one time
except those investments made prior to closing and set forth on Schedule 3.4(c);
and (viii) Permitted Acquisitions.
6.7. Change in Business. Discontinue any substantial part, or change
the nature of, the business of IGC and its Subsidiaries taken as a whole or
enter into any new business unrelated to the present business conducted by IGC
and its Subsidiaries, taken as a whole.
6.8. Sale or Discount of Receivables. Sell any notes receivable or
account receivable, with or without recourse.
6.9. ERISA.
(a) Terminate any Plan maintained by any Borrower to which
Section 4021 of ERISA applies without the Required Banks' prior written consent,
such consent not to be unreasonably withheld;
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(b) Allow the value of the benefits guaranteed under Title IV
of ERISA to exceed the value of assets allocable to such benefits; or
(c) Incur a withdrawal liability within the meaning of Section
4201 of ERISA.
6.10. Restricted Payments. Declare or pay any dividend (except stock
dividends), or make any distributions of cash or property, to holders of any
shares of its capital stock, or, directly or indirectly, redeem or otherwise
acquire any such shares of any Borrower, provided, however, that: (i) payments
of one Borrower to another Borrower shall be permitted (as long as the recipient
Borrower holds shares of the payee Borrower's stock); (ii) IGC may pay cash
dividends in any fiscal year in an amount not exceeding its Net Income for the
preceding fiscal year, and (iii) IGC may make payments pursuant to its existing
stock buy-back program.
VII. DEFAULT
The Borrowers shall be in default if any one or more of the following
events (each an "Event of Default") occurs and is continuing, whatever the
reason therefor:
7.1. Borrowers' Failure to Pay. The Borrowers jointly or severally fail
to pay (a) any amount of principal as and when due under this Agreement or any
of the Loan Documents, whether upon stated maturity, acceleration, or otherwise
and (b) interest, fees or other sums as and when due under this Agreement or any
of the Loan Documents, whether upon stated maturity, acceleration, or otherwise
and have not remedied and fully cured such failure to pay within ten (10)
Business Days after the date such payment is so due.
7.2. Breach of Covenants or Conditions. The Borrowers, individually or
collectively, fail to perform or observe any term, any affirmative covenant, any
agreement or any condition in this Agreement or any of the other Loan Documents
or are in violation of or non-compliance with any provision of this Agreement or
any of the Loan Documents, and have not remedied and fully cured such
non-performance, non-observance, violation of or non-compliance within thirty
(30) days after the Agent has given written notice thereof to the Borrowers;
provided, however, that during such thirty (30) day period the Banks'
obligations to make further Loans to the Borrowers shall be suspended; provided,
further, that a failure to observe Section 5.16 of this Agreement or any
negative covenant in this Agreement or any of the other Loan Documents shall
constitute an immediate Event of Default.
7.3. Defaults in Other Agreements. The Borrowers, individually or
collectively, fail to perform or observe any material term, covenant, agreement
or condition contained in any other agreement applicable to the Borrowers
(except for financial covenants contained in any other agreement between First
Union and any of the Borrowers that are superseded by the financial covenants
set forth on Schedule 5.16) or by which they are individually or collectively
bound involving a material liability of any Borrower which shall not be remedied
within the period of time (if any) within which such other agreement permits
such default to be remedied, unless such default is waived by the other party
thereto or excused as a matter of law.
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7.4. Agreements Invalid. The validity, binding nature of, or
enforceability of any material term or provision of any of the Loan Documents is
disputed by, on behalf of, or in the right or name of any Borrower or any
material term or provision of any such Loan Document is found or declared to be
invalid, avoidable, or non-enforceable by any court of competent jurisdiction.
7.5. False Warranties; Breach of Representations. Any warranty or
representation made by the Borrowers, individually or collectively, in this
Agreement or any other Loan Document or in any certificate or other writing
delivered under or pursuant to this Agreement or any other Loan Document, or in
connection with any provision of this Agreement or related to the transactions
contemplated hereby shall prove to have been false or incorrect or breached in
any material aspect on the date as of which made.
7.6. Judgments. A final judgment or judgments (except those covered by
insurance) is entered, or an order or orders of any judicial authority or
governmental entity is issued against the Borrowers, individually or
collectively, (such judgment(s) and order(s) hereinafter collectively referred
to as "Judgment") (i) for payment of money, which Judgment, in the aggregate,
exceeds One Million Dollars ($1,000,000.00) outstanding at any one time; or (ii)
for injunctive or declaratory relief which would have a material adverse effect
on the ability of any Borrower individually or the Borrowers as a whole to
conduct their business, and such Judgment is not discharged or execution thereon
or enforcement thereof stayed pending appeal, within thirty (30) days after
entry or issuance thereof or, in the event of such a stay, such Judgment is not
discharged within thirty (30) days after such stay expires.
7.7. Bankruptcy or Insolvency of a Borrower.
(a) A Borrower becomes insolvent, or generally fails to pay,
or is generally unable to pay, or admits in writing its inability to pay, its
debts as they become due or applies for, consents to, or acquiesces in, the
appointment of a trustee, receiver or other custodian for it or a substantial
part of its property, or makes a general assignment for the benefit of
creditors.
(b) A Borrower commences any bankruptcy, reorganization, debt
arrangement, or other case or proceeding under any state or federal bankruptcy
or insolvency law, or any dissolution or liquidation proceeding.
(c) Any bankruptcy, reorganization, debt arrangement, or other
case or proceeding under any state or federal bankruptcy or insolvency law, or
any dissolution or liquidation proceeding, is involuntarily commenced against or
in respect of a Borrower, which is not dismissed within forty-five (45) days, or
an order for relief is entered in any such proceeding.
(d) A trustee, receiver, or other custodian is appointed for a
Borrower or a substantial part of its property.
VIII. REMEDIES
8.1. Further Advances; Acceleration; Setoff.
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(a) Upon the occurrence of any one or more Events of Default,
the Agent shall, upon the written request of the Required Banks, terminate the
Revolving Loan Commitments and refuse to make any further advances or Loans to
the Borrowers.
(b) Automatically upon the occurrence of any Event of Default
described in Section 7.7 of this Agreement, and in the sole discretion of the
Required Banks upon the occurrence of any other Event of Default, the unpaid
principal balance of all Loans, all interest and fees accrued and unpaid
thereon, and all other amounts and Obligations payable by the Borrowers under
this Agreement and the other Loan Documents shall immediately become due and
payable in full, all without protest, presentment, demand, or further notice of
any kind to the Borrowers, all of which are expressly waived by the Borrowers.
(c) If any one or more Events of Default shall have occurred,
the Banks, any affiliate of any Bank and any other participant in the Loans
shall have the right, in addition to all other rights and remedies available to
them, without notice to the Borrowers, to apply toward and set-off against and
apply to the then unpaid balance of the Notes and the other Obligations any
items or funds held by any Bank or any such affiliate or participant, any and
all deposits (whether general or special, time or demand, matured or unmatured,
fixed or contingent, liquidated or unliquidated) now or hereafter maintained by
any Borrower for its own account with any Bank or any such affiliate or
participant, and any other indebtedness at any time held or owing by any Bank or
any such affiliate or participant, to or for the credit or the account of such
Borrowers. For such purpose, the Banks and any such affiliate or participant
shall have, and each Borrower hereby grants to the Banks and any such affiliate
or participant, a first lien on all such deposits. The Banks and any such
affiliate or participant are hereby authorized to charge any such account or
indebtedness for any amounts due to the Banks and any such affiliate or
participant. Such right of set-off shall exist whether or not the Banks shall
have made any demand under this Agreement, the Notes or any other Loan Document
and whether or not the Notes and the other Obligations are matured or unmatured.
Each Borrower hereby confirms the Banks' and any such affiliate's or
participant's lien on such accounts and right of set-off, and nothing in this
Agreement shall be deemed any waiver or prohibition of such lien and right of
set-off.
(d) Any date on which the Loans and such other obligations are
declared due and payable pursuant to this Section shall be the Revolver
Termination Date for purposes of this Agreement. Prior to the Revolver
Termination Date, so long as an Event of Default shall have occurred and be
continuing, and at all times after the Revolver Termination Date the Loans shall
bear interest at the Default Rate.
8.2. Further Remedies. Upon the occurrence of any one or more Events of
Default, the Agent and the Banks may proceed to protect and enforce their rights
under this Agreement and the other Loan Documents by exercising such remedies as
are available to the Agent and the Banks in respect thereof under applicable
law, either by suit in equity or by action at law, or both, whether for specific
performance of any provision contained in this Agreement or any of the other
Loan Documents or in aid of the exercise of any power granted in this Agreement
or any of the other Loan Documents.
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IX. AGENT
9.1. Appointment and Authorization. Each Bank hereby irrevocably
appoints and authorizes the Agent to take such action on its behalf and to
exercise such powers under this Agreement and the Loan Documents as are
specifically delegated to the Agent by the terms hereof or thereof, together
with such other powers as are reasonably incidental thereto. The relationship
between the Agent and each Bank has no fiduciary aspects, and the Agent's duties
(as Agent) hereunder are acknowledged to be only ministerial and not involving
the exercise of discretion on its part. Nothing in this Agreement or any Loan
Document shall be construed to impose on the Agent any duties or
responsibilities other than those for which express provision is made herein or
therein. In performing its duties and functions hereunder, the Agent does not
assume and shall not be deemed to have assumed, and hereby expressly disclaims,
any obligation with or for the Borrowers. As to matters not expressly provided
for in this Agreement or any Loan Document, the Agent shall not be required to
exercise any discretion or to take any action or communicate any notice, but
shall be fully protected in so acting or refraining from acting upon the
instructions of the Required Banks and their respective successors and assigns;
provided, however, that in no event shall the Agent be required to take any
action which exposes it to personal liability or which is contrary to this
Agreement, any Loan Document or applicable law, and the Agent shall be fully
justified in failing or refusing to take any action hereunder unless it shall
first be specifically indemnified to its satisfaction by the Banks against any
and all liability and expense which may be incurred by it by reason of taking or
omitting to take any such action. If an indemnity furnished to the Agent for any
purpose shall, in the reasonable opinion of the Agent, be insufficient or become
impaired, the Agent may call for additional indemnity from the Banks and not
commence or cease to do the acts for which such indemnity is requested until
such additional indemnity is furnished.
9.2. Duties and Obligations. In performing its functions and duties
hereunder on behalf of the Banks, the Agent shall exercise the same care and
skill as it would exercise in dealing with loans for its own account. Neither
the Agent nor any of its directors, officers, employees or other agents shall be
liable for any action taken or omitted to be taken by it or them under or in
connection with this Agreement or any Loan Document except for its or their own
gross negligence or willful misconduct. Without limiting the generality of the
foregoing, the Agent (a) may consult with legal counsel and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken by it in good faith and in accordance with the advice of such experts; (b)
makes no representation or warranty to any Bank as to, and shall not be
responsible to any Bank for, any recital, statement, representation or warranty
made in or in connection with this Agreement, any Loan Document or in any
written or oral statement (including a financial or other such statement),
instrument or other document delivered in connection herewith or therewith or
furnished to any Bank by or on behalf of any Borrower, (c) shall have no duty to
ascertain or inquire into any Borrower's performance or observance of any of the
covenants or conditions contained herein or to inspect any of the property
(including the books and records) of any Borrower or inquire into the use of the
proceeds of the Revolving Credit Loans or (unless the officers of the Agent
active in their capacity as officers of the Agent on the Borrowers' account have
actual knowledge thereof or have been notified in writing thereof) to inquire
into the existence or possible existence of any Event of Default or Potential
Default; (d) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, effectiveness, genuineness, sufficiency,
collectability or value of this Agreement or any other Loan Document or any
instrument or document executed or issued pursuant hereto or in connection
herewith, except to the extent that such may be dependent on the due
authorization and execution by the Agent itself; (e) except as expressly
provided herein in respect of information and data furnished to the Agent for
distribution to the Banks, shall have no duty or responsibility, either
initially or on a continuing basis, to provide to any Bank any credit or other
information with respect to any Borrower, whether coming into its possession
before the making of the Loans or at any time or times thereafter; and (f) shall
incur no liability under or in respect of this Agreement or any other Loan
Document for, and shall be entitled to rely and act upon, any notice, consent,
certificate or other instrument or writing (which may be by facsimile
(telecopier), telegram, cable, or other electronic means) believed by it to be
genuine and correct and to have been signed or sent by the proper party or
parties.
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9.3. The Agent as a Bank. With respect to its Revolving Loan Commitment
and the Loans made and to be made by it, the Agent shall have the same rights
and powers under this Agreement and all other Loan Documents as the other Banks
and may exercise the same as if it were not the Agent. The terms "Bank" and
"Banks" as used herein shall, unless otherwise expressly indicated, include the
Agent in its individual capacity. The Agent and any successor Agent which is a
commercial bank, and their respective affiliates, may accept deposits from, lend
money to, act as trustee under indentures of and generally engage in any kind of
business with, the Borrowers and their affiliates from time to time, all as if
such entity were not the Agent hereunder and without any duty to account
therefor to any Bank.
9.4. Independent Credit Decisions. Each Bank acknowledges to the Agent
that it has, independently and without reliance upon the Agent or any other
Bank, and based upon such documents and information as it has deemed
appropriate, made its own independent credit analysis and decision to enter into
this Agreement. Each Bank also acknowledges that it will, independently or
through other advisers and representatives but without reliance upon the Agent
or any other Bank, and based upon such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or refraining from taking any action under this Agreement or any Loan
Document.
9.5. Indemnification. The Banks agree to indemnify the Agent (to the
extent not reimbursed by the Borrowers), ratably in proportion to each Bank's
Commitment Percentage, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Agent in such capacity in any way relating to or
arising out of this Agreement or any Loan Document or any action taken or
omitted to be taken by the Agent in such capacity hereunder or under any Loan
Document; provided that none of the Banks shall be liable for any portion of
such liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the Agent's gross
negligence or willful misconduct. Without limiting the generality of the
foregoing, each Bank agrees to reimburse the Agent, promptly on demand, for such
Bank's ratable share (based upon the aforesaid apportionment) of any
out-of-pocket expenses (including counsel fees and disbursements) incurred by
the Agent in connection with the preparation, execution, administration or
enforcement of, or the preservation of any rights under, this Agreement and the
Loan Documents to the extent that the Agent is not reimbursed for such expenses
by the Borrowers.
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9.6. Successor Agent. The Agent may resign at any time by giving
written notice of such resignation to the Banks and the Borrowers, such
resignation to be effective only upon the appointment of a successor Agent as
hereinafter provided. Additionally, the Agent may be removed by the Required
Banks if: (i) the aggregate Commitment Percentages of the Agent and its
affiliates do not equal at least fifteen percent (15%); or (ii) a conservator,
receiver or trustee in bankruptcy is appointed for the Agent and such
appointment is not vacated within ninety (90) days of such appointment. Upon any
such resignation or removal of the Agent, the Banks shall jointly appoint a
successor Agent upon written notice to the Borrowers and the retiring or removed
Agent. If no successor Agent shall have been jointly appointed by such Banks and
shall have accepted such appointment within thirty (30) days after a retiring
Agent shall have given notice of resignation, the retiring Agent may, upon
notice to the Borrowers and the Banks, appoint a financial institution as
successor Agent. Upon its acceptance of any appointment as Agent hereunder, the
successor Agent shall succeed to and become vested with all the rights, powers,
privileges and duties of the previous Agent, and the previous Agent shall be
discharged from its duties and obligations as Agent under this Agreement and the
Loan Documents. After any Agent's resignation or removal hereunder, the
provisions hereof shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Agent under this Agreement and the Loan
Documents.
9.7. Allocations Made By Agent. As between the Agent and the Banks,
unless a Bank objecting to a determination or allocation made by the Agent
pursuant to this Agreement delivers to the Agent written notice of such
objection within one hundred twenty (120) days after the date any distribution
was made by the Agent, such determination or allocation shall be conclusive on
such one hundred twentieth day and only those items expressly objected to in
such notice shall be deemed disputed by such Bank. The Agent shall not have any
duty to inquire as to the application by the Banks of any amounts distributed to
them.
9.8. Benefits of Article IX. The parties hereto agree that the
provisions of this Article IX are intended solely for the benefit of the Agent
and the Banks, and the Borrowers shall not be entitled to rely on any provisions
or assert any such provisions of this Article in any claim or as a defense
against the Agent or the Banks.
9.9. Reports and Notices. The Borrowers hereby agree that whenever
herein or in any other Loan Document any report notice, statement or other
information is to be given to any Bank or the Agent, such report, notice,
statement or other information shall be given to all Banks contemporaneously and
within the period of time required for giving such report, notice, statement or
information.
X. SYNDICATION AGENT
The Syndication Agent shall have no duties or responsibilities (other
than its duties and responsibilities as a Bank) under this Agreement or any of
the other Loan Documents.
XI. DOCUMENTATION AGENT
The Documentation Agent shall have no duties or responsibilities (other
than its duties and responsibilities as a Bank) under this Agreement or any of
the other Loan Documents.
31
XII. MISCELLANEOUS
12.1. Waiver. No failure or delay on the part of the Agent or any Bank
or any holder of any Note in exercising any right, power or remedy under any
Loan Document shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy under any
Loan Document. The remedies provided under the Loan Documents are cumulative and
not exclusive of any remedies provided by law.
12.2. Amendments. No amendment, modification, termination or waiver of
any Loan Document or any provision thereof nor any consent to any departure by
any Borrower therefrom shall be effective unless the same shall have been
approved in writing by Required Banks, be in writing and be signed by the Agent
and the applicable Borrower or Borrowers, and then any such waiver or consent
shall be effective only in the instance and for the specific purpose for which
given. No notice to or demand on the Borrowers shall entitle the Borrowers to
any other or further notice or demand in similar or other circumstances.
Notwithstanding any other provision contained in any Loan Document, no
amendment, modification, termination or waiver shall affect the payment of
principal (including without limitation the date when due), reduce any interest
rate margin or any fee provided herein, increase any Revolving Loan Commitment,
extend the Revolver Termination Date, modify the definition of "Required Banks"
or any voting rights of the Banks or amend or modify this Section 12.2 without
the written consent of all of the Banks. The rights and responsibilities of the
Agent hereunder cannot be changed without the Agent's prior written consent.
12.3. Governing Law. The Loan Documents and all rights and obligations
of the parties thereunder shall be governed by and be construed and enforced in
accordance with the laws of the State of New York without regard to New York or
federal principles of conflict of laws.
12.4. Participations and Assignments. Each Borrower hereby acknowledges
and agrees that a Bank may at any time:
(a) grant participations in all or any portion of its
Revolving Loan Commitment, any Note, or of its right, title and interest therein
or in or to this Agreement (collectively, "Participations") to any other lending
office or to any other bank, lending institution or other entity which has the
requisite sophistication to evaluate the merits and risks of investments in
Participations ("Participants") (but only with the consent of the Agent and
Borrowers, which consent shall not be unreasonably withheld); provided, however,
that: (i) all amounts payable by the Borrowers hereunder shall be determined as
if such Bank had not granted such Participation; (ii) any agreement pursuant to
which any Bank may grant a Participation: (x) shall provide that such Bank shall
retain the sole right and responsibility to enforce the obligations of the
Borrowers hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provisions of this Agreement; (y) such
participation agreement may provide that such Bank will not agree to any
modification, amendment or waiver of this Agreement without the consent of the
Participant if such modification, amendment or waiver would reduce the principal
of or rate of interest on the Loan or postpone the date fixed for any payment of
principal of or interest on the Loan; and (z) shall not relieve such Bank from
its obligations, which shall remain absolute, to make Loans hereunder; and (iii)
notwithstanding the foregoing, if any Event of Default with respect to Sections
5.16 or 7.1 of this Agreement has occurred within the six (6) months immediately
preceding the date of the proposed participation (whether or not such Event of
Default is ongoing or has been cured), the consent of the Borrowers and the
Agent shall not be necessary to such participation; and
32
(b) assign any of its Loans and its Revolving Credit
Commitment (but only with the consent of the Borrowers and the Agent, which
consent shall not be unreasonably withheld), provided that: (i) each such
assignment shall be in an amount of at least $5,000,000 (unless, after giving
effect to such assignment and all other such assignments by such assigning Bank
occurring simultaneously or substantially simultaneously therewith, such
assigning Bank shall hold no Revolving Credit Commitment or Loan hereunder);
(ii) each such assignment by a Bank of its Loans or Revolving Credit Commitment
shall be made in such manner so that the same portion of its Loans, Note and
Revolving Credit Commitment is assigned to the respective assignee; and (iii)
notwithstanding the foregoing, if any Event of Default with respect to Sections
5.16 or 7.1 of this Agreement has occurred within the six (6) months immediately
preceding the date of the proposed assignment (whether or not such Event of
Default is ongoing or has been cured), the consent of the Borrowers and the
Agent shall not be necessary to such assignment. Upon execution and delivery by
the assignee to the Borrowers and the Agent of an instrument in writing in
substantially the same form as Exhibit 12.4 hereto pursuant to which such
assignee agrees to become a "Bank" hereunder (if not already a Bank) having the
Revolving Credit Commitment(s) and Loans specified in such instrument, and upon
consent thereto by the Borrowers and the Agent, to the extent required above,
the assignee shall have, to the extent of such assignment (unless otherwise
provided in such assignment with the consent of the Borrowers and the Agent),
the obligations, rights and benefits of a Bank hereunder holding the Revolving
Credit Commitment(s) and Loans (or portions thereof) assigned to it (in addition
to the Revolving Credit Commitment(s) and Loans, if any, theretofore held by
such assignee) and the assigning Bank shall, to the extent of such assignment,
be released from the Commitment(s) (or portion(s) thereof) so assigned. Upon
each such assignment the assigning Bank shall pay the Agent an assignment fee of
$3,500.
12.5. Captions. Captions in the Loan Documents are included for
convenience of reference only and shall not constitute a part of any Loan
Document for any other purpose.
12.6. Notices. All notices, requests, demands, directions, declarations
and other communications between the Banks and the Borrowers provided for in any
Loan Document shall, except as otherwise expressly provided, be mailed by
registered or certified mail, return receipt requested, or telecopied, or
telexed, or delivered in hand to the applicable party at the following
addresses:
If to the Borrowers:
Intermagnetics General Corporation
000 Xxx Xxxxxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx, Senior Vice President - Finance
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
33
with a copy to:
Intermagnetics General Corporation
000 Xxx Xxxxxxxxx Xxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxx, Esquire, Corporate Counsel
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Agent or the Banks:
First Union National Bank
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, CT 2018
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to:
Xxxx & Hessen LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxx, Esquire
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Notices shall be effective and deemed received three (3) Business Days after
being deposited in the mail, postage prepaid, addressed as aforesaid and shall
whenever sent by telecopier or telex or delivered in hand be effective when
received. Any party may change its address by a communication in accordance
herewith.
12.7. Sharing of Collections, Proceeds and Set-Offs; Application of
Payments.
(a) If any Bank, by exercising any right of set-off,
counterclaim or foreclosure against trade collateral or otherwise, receives
payment of principal or interest or other amount due on any Loan which is
greater than the percentage share of such Bank (determined as set forth below),
the Bank receiving such proportionately greater payment shall purchase such
participations in the Loans held by the other Banks, and such other adjustments
shall be made as may be required, so that all such payments shall be shared by
the Banks on the basis of their percentage shares; provided that if all or any
portion of such proportionately greater payment of such indebtedness is
thereafter recovered from, or must otherwise be restored by, such purchasing
Bank, the purchase shall be rescinded and the purchase price restored to the
extent of such recovery, but without interest being paid by such purchasing
Bank. The percentage share of each Bank shall be based on the portion of the
outstanding Loans of such Bank (prior to receiving any payment for which an
adjustment must be made under this Section in relation to the aggregate
outstanding Loans of all the Banks. Each Borrower agrees, to the fullest extent
it may effectively do so under applicable law, that any holder of a
participation in a Loan or reimbursement obligation, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of set-off or
counterclaim and other rights with respect to such participation as fully as if
such holder of a participation were a direct creditor of such Borrower in the
amount of such participation. If under any applicable bankruptcy, insolvency or
other similar law, any Bank receives a secured claim in lieu of a set-off to
which this Section would apply, such Bank shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Banks entitled under this Section to share in the benefits of
any recovery on such secured claim.
34
(b) If an Event of Default or Potential Default shall have
occurred and be continuing the Agent and each Bank and the Borrowers agree that
all payments on account of the Loans shall be applied by the Agent and the Banks
as follows:
(1) First, to the Agent for any Agent fees then due
and payable under this Agreement until such fees are paid in
full;
(2) Second, to the Agent for any fees, costs or
expenses (including expenses described in Section 12.8)
incurred by the Agent under any of the Loan Documents or this
Agreement, then due and payable and not reimbursed by the
Borrowers or the Banks until such fees, costs and expenses are
paid in full;
(3) Third, to the Banks for their respective shares
of all costs, expenses and fees then due and payable from the
Borrowers until such costs, expenses and fees are paid in
full;
(4) Fourth, to the Banks for their percentage shares
of the Commitment Fee then due and payable under this
Agreement until such fee is paid in full;
(5) Fifth, to the Banks for their percentage shares
of all interest then due and payable from the Borrowers until
such interest is paid in full, which percentage shares shall
be calculated by determining each Bank's percentage share
(determined as set forth in Section 12.7(a)) of the amounts
allocated in (a) above; and
(6) Sixth, to the Banks for their percentage shares
of the principal amount of the Loans then due and payable from
the Borrowers until such principal is paid in full, which
percentage shares shall be calculated by determining each
Bank's percentage share (determined as set forth in Section
12.7(a)) of the amount allocated in (a) above.
35
12.8. Expenses of the Agent; Indemnification of the Agent and the
Banks.
(a) The Borrowers will from time to time reimburse the Agent
promptly following demand for all reasonable out-of-pocket expenses (including
the reasonable fees and expenses of legal counsel) in connection with (i) the
preparation of the Loan Documents, (ii) the making of any Loans, (iii) the
administration of the Loan Documents and (iv) the enforcement of the Loan
Documents; and will reimburse the Banks for all out-of-pocket expenses
(including reasonable fees and expenses of legal counsel) in connection with the
foregoing, including, without limitation, the enforcement of the Loan Documents,
which expenses shall not be unreasonable. Notwithstanding the foregoing, the
Banks shall use their good faith best efforts to engage common legal counsel
with respect to any attempts by the Banks to enforce any of the Loan Documents.
(b) In addition to the payment of the foregoing expenses, the
Borrowers hereby agree, jointly and severally, to indemnify, protect and hold
the Agent, each Bank and any holder of the Notes and the officers, directors,
employees, agents, affiliates and attorneys of the Agent, each Bank and such
holder (collectively, the "Indemnitees") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses and disbursements of any kind or nature, including reasonable
fees and expenses of legal counsel, which may be imposed on, incurred by, or
asserted against such Indemnitee by any Borrower or other third parties and
arise out of or relate to this Agreement or the other Loan Documents or any
other matter whatsoever related to the transactions contemplated by or referred
to in this Agreement or the other Loan Documents; provided, however, that the
Borrowers shall have no obligation to an Indemnitee hereunder to the extent that
the liability incurred by such Indemnitee has been determined by a court of
competent jurisdiction to be the result of gross negligence or willful
misconduct of such Indemnitee.
12.9. Survival of Warranties and Certain Agreements. All agreements,
representations and warranties made or deemed made herein shall survive the
execution and delivery of this Agreement, the making of the Loans hereunder and
the execution and delivery of the Notes. Notwithstanding anything in this
Agreement or implied by law to the contrary, the agreements of the Borrowers set
forth in Sections 2.1(f), 2.5, 2.10, and 12.8, and the agreements of the Banks
set forth in Sections 9.1, 9.5 and 12.7 shall survive the payment of the Loans
and the termination of this Agreement. This Agreement shall remain in full force
and effect until the latest to occur of the termination of the Aggregate
Revolving Loan Commitment or the repayment in full of all amounts owed by the
Borrowers under any Loan Document.
12.10. Severability. The invalidity, illegality or unenforceability in
any jurisdiction of any provision in or obligation under this Agreement, the
Notes or other Loan Documents shall not affect or impair the validity, legality
or enforceability of the remaining provisions or obligations under this
Agreement, the Notes or other Loan Documents or of such provision or obligation
in any other jurisdiction.
12.11. Banks' Obligations Several; Independent Nature of Banks' Rights.
The obligation of each Bank hereunder is several and not joint and no Bank shall
be the agent of any other (except to the extent the Agent is authorized to act
as such hereunder). No Bank shall be responsible for the obligation or
commitment of any other Bank hereunder. In the event that any Bank at any time
should fail to make a Loan as herein provided, the other Banks, or any of them
as may then be agreed upon, at their sole option, may make the Loan that was to
have been made by the Bank so failing to make such Loan. Nothing contained in
any Loan Document and no action taken by Agent or any Bank pursuant hereto or
thereto shall be deemed to constitute Banks to be a partnership, an association,
a joint venture or any other kind of entity. The amounts payable at any time
hereunder to each Bank shall be a separate and independent debt, and, subject to
the terms of this Agreement, upon giving notice to all other Banks each Bank
shall be entitled to protect and enforce its rights arising out of this
Agreement and it shall not be necessary for any other Bank to be joined as an
additional party in any proceeding for such purpose.
36
12.12. No Fiduciary Relationship. No provision in this Agreement or in
any of the other Loan Documents and no course of dealing between the parties
shall be deemed to create any fiduciary duty by Agent or any Bank to the
Borrowers.
12.13. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. EACH OF THE
BORROWERS, THE AGENT AND EACH BANK HEREBY CONSENTS TO THE JURISDICTION OF ANY
STATE OR FEDERAL COURT LOCATED WITHIN THE SOUTHERN DISTRICT OF NEW YORK AND
IRREVOCABLY AGREES THAT, ANY ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING
TO THE NOTES, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS MAYBE LITIGATED IN SUCH
COURTS. EACH PARTY TO THIS AGREEMENT ACCEPTS FOR ITSELF AND IN CONNECTION WITH
ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF
THE AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENT, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT, SUCH NOTE, OR SUCH OTHER LOAN DOCUMENT.
12.14. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS, THE AGENT AND EACH
BANK HEREBY WAIVES ITS RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE LOAN
DOCUMENTS, OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS
AGREEMENT AND THE LENDER/BORROWER RELATIONSHIP ESTABLISHED HEREBY. THE SCOPE OF
THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY
BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION,
INCLUDING WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY
CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. EACH OF THE BORROWERS,
THE AGENT AND EACH BANK ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT
TO THE TRANSACTION, THAT EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO
THIS AGREEMENT AND THAT EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR
RELATED FUTURE DEALINGS. EACH OF THE BORROWERS, THE AGENT AND EACH BANK FURTHER
WARRANTS AND REPRESENTS THAT EACH HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. THIS WAIVER IS IRREVOCABLE, AND THE
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT, THE LOAN DOCUMENTS, OR TO ANY OTHER DOCUMENTS
OR AGREEMENTS RELATING TO THE LOANS. IN THE EVENT OF LITIGATION, THIS AGREEMENT
MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
37
12.15. Further Assurances. Each of the parties to this Agreement agrees
that at any time and from time to time upon the written request of any other
party, it will execute and deliver such further documents and do such further
acts and things as such other party may reasonably request in order to effect
the purposes of this Agreement.
12.16. Counterparts; Effectiveness. This Agreement and any amendment
hereto or waiver hereof may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. This Agreement and any amendments
hereto or waivers hereof shall become effective when the Agent shall have
received signed counterparts or notice by telecopy of the signature page that
the counterpart has been signed and is being delivered to the Agent or facsimile
that such counterparts have been signed by all the parties hereto or thereto.
12.17. Use of Defined Terms. All words used herein in the singular or
plural shall be deemed to have been used in the plural or singular where the
context or construction so requires. Any defined term used in the singular
preceded by "any" shall be taken to indicate any number of the members of the
relevant class.
38
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
Borrowers and the Banks have caused this Agreement to be executed by their
proper corporate officers thereunto duly authorized as of the day and year first
above written.
INTERMAGNETICS GENERAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Chief Financial Officer
IGC-APD CRYOGENICS INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Treasurer
IGC-POLYCOLD SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Treasurer
IGC-SUPERPOWER, LLC
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Treasurer
MEDICAL ADVANCES, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Treasurer
39
Commitment Percentage: 40% FIRST UNION NATIONAL BANK, individually
Revolving Loan Commitment: $20,000,000 and as Agent
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
Commitment Percentage: 30% THE CHASE MANHATTAN BANK, individually
Revolving Loan Commitment: $15,000,000 and as Syndication Agent
By: /s/ Xxxxx X. Xxxxx, Xx.
Name: Xxxxx X. Xxxxx, Xx.
Title: Vice President
Commitment Percentage: 30% KEYBANK NATIONAL ASSOCIATION, individually
Revolving Loan Commitment: $15,000,000 and as Documentation Agent
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
00
XXXXX XX XXX XXXX )
) ss.
COUNTY OF ALBANY )
On this 19 day of September, 2001, before me personally came Xxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Chief Financial Officer of Intermagnetics General Corporation, the
corporation described in and which executed the foregoing instrument and that he
signed his name thereto by order of the board of directors of said corporation.
/s/ Xxxxxxxxx X. Xxxxxxx
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.
COUNTY OF ALBANY )
On this 19 day of September, 2001, before me personally came Xxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Treasurer of IGC-APD Cryogenics, Inc., the corporation described in and
which executed the foregoing instrument and that he signed his name thereto by
order of the board of directors of said corporation.
/s/ Xxxxxxxxx X. Xxxxxxx
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.
COUNTY OF ALBANY )
On this 19 day of September, 2001, before me personally came Xxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Treasurer of IGC-Polycold Systems, Inc., the corporation described in and
which executed the foregoing instrument and that he signed his name thereto by
order of the board of directors of said corporation.
/s/ Xxxxxxxxx X. Xxxxxxx
NOTARY PUBLIC
41
STATE OF NEW YORK )
) ss.
COUNTY OF ALBANY )
On this 19 day of September, 2001, before me personally came Xxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Treasurer of IGC-Superpower, LLC, the limited liability company described in
and which executed the foregoing instrument and that he signed his name thereto
by order of the managers of said limited liability company.
/s/ Xxxxxxxxx X. Xxxxxxx
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.
COUNTY OF ALBANY )
On this 19 day of September, 2001, before me personally came Xxxxxxx X.
Xxxxxxx, to me known, who, being by me duly sworn, did depose and say that he is
the Treasurer of Medical Advances, Inc., the corporation described in and which
executed the foregoing instrument and that he signed his name thereto by order
of the board of directors of said corporation.
/s/ Xxxxxxxxx X. Xxxxxxx
NOTARY PUBLIC
42
STATE OF NEW YORK )
) ss.
COUNTY OF WESTCHESTER )
On this 19TH day of September, 2001, before me personally came Xxxxxxx
X. Xxxxxx, to me known, who, being by me duly sworn, did depose and say that he
is the Senior Vice President of First Union National Bank, the corporation
described in and which executed the foregoing instrument and that he signed his
name thereto by order of the board of directors of said corporation.
/s/ Xxxxxxx X. Xxxxxxxx
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.
COUNTY OF )
On this 4th day of September October, 2001, before me personally came
Xxxxx X. Xxxxx, Xx., to me known, who, being by me duly sworn, did depose and
say that he is the Vice President of The Chase Manhattan Bank, the national
association described in and which executed the foregoing instrument and that he
signed his name thereto by order of the board of directors of said national
association.
/s/ Xxxxxxxxx X. Xxxxxxxxx
NOTARY PUBLIC
STATE OF NEW YORK )
) ss.
COUNTY OF )
On this 19th day of September, 2001, before me personally came Xxxxxx
X. Xxxxxxxx, to me known, who, being by me duly sworn, did depose and say that
he is the Vice President of KeyBank National Association, the corporation
described in and which executed the foregoing instrument and that he signed his
name thereto by order of the board of directors of said corporation.
/s/ Xxxx X. Xxxxxxxx
NOTARY PUBLIC
43
Exhibit A
Form of Borrowing Notice
First Union National Bank
--------------------------
--------------------------
Attention:
---------------
Ladies and Gentlemen:
The undersigned, INTERMAGNETICS GENERAL CORPORATION, on behalf of itself and
IGC-APD CRYOGENICS INC., IGC-POLYCOLD SYSTEMS, INC., IGC-SUPERPOWER LLC and
MEDICAL ADVANCES, INC. (collectively, the "Borrowers"), refers to the Loan and
Agency Agreement, dated as of September __, 2001, among the Borrowers, First
Union National Bank, as agent (the "Agent"), The Chase Manhattan Bank, as
syndication agent (the "Syndication Agent"), KeyBank National Association, as
documentation agent (the "Documentation Agent"), and the Banks (as defined
therein) (as amended, modified and/or extended to date, the "Loan Agreement"),
capitalized terms used herein having the definitions given such terms in the
Loan Agreement, and hereby:
1. Gives you notice, irrevocably, pursuant to Section 2.3 of the Loan
Agreement, that IGC on behalf of the Borrowers hereby requests a Loan
under the Loan Agreement and, in that regard, sets forth below the
information relating to that Loan (the "Proposed Advance") as required
by Section 2.3 of the Loan Agreement:
(a) the requested Business Day of the Proposed Advance is ____________,
(b) the aggregate amount of the Proposed Advance is $____________;and
(c) the Proposed Advance is intended to be a LIBO Rate Loan and the
Interest Period for the Proposed Advance is __________months;
or
the Proposed Advance is intended to be a Prime Rate Loan.
44
2. Certifies to you as follows: (i) each Borrower is on the date hereof,
and will be on the date of the Proposed Advance, in compliance with all
covenants, agreements and conditions in each Loan Document (ii) each
representation and warranty contained in each Loan Document is true on
the date hereof and will be true on the date of the Proposed Advance,
with the same effect as if such representation or warranty had been
made on each such respective date; and (iii) immediately prior to and
after giving effect to the Proposed Advance, no Event of Default or
Potential Default shall exist.
Very truly yours,
INTERMAGNETICS GENERAL
CORPORATION
Dated: ______________ __, ____ By:__________________________
Name:
Title:
45
Exhibit B
Form of Covenant Compliance Certificate
First Union National Bank
-------------------------
-------------------------
Attention:
---------------
Ladies and Gentlemen:
This Covenant Compliance Certificate (this "Certificate") is executed
and delivered pursuant to Section 5.2(d) of the Loan and Agency Agreement, dated
September __, 2001 (the "Loan Agreement"), by and among INTERMAGNETICS GENERAL
CORPORATION, on behalf of itself and IGC-APD CRYOGENICS INC., IGC-POLYCOLD
SYSTEMS, INC., IGC-SUPERPOWER LLC and MEDICAL ADVANCES, INC. (collectively, the
"Borrowers"), the Banks (as such term is defined in the Loan Agreement), First
Union National Bank, as agent for the Banks (the "Agent"), The Chase Manhattan
Bank, as syndication agent for the Banks (the "Syndication Agent"), and KeyBank
National Association, as documentation agent for the Banks (the "Documentation
Agent"). All capitalized terms used herein without definition shall have the
meanings given to them in the Loan Agreement and Schedule 5.16 thereto.
The undersigned has reviewed the terms of the Loan Agreement and has
made, or caused to be made under his or her supervision, a review in reasonable
detail of the transactions and financial condition of the Borrowers during the
fiscal period covered by this Certificate.
As of _____________ the following financial covenants have the
following values:
COVENANT ACTUAL
1. Minimum Tangible Net Worth $70,000,000 $_____________
2. Maximum Ratio of Senior Debt to EBITDA 3.0:1.0 _____________
3. Minimum Ratio of EBIT to Interest Expenses 2.0:1.0 _____________
Attached hereto are the calculations and information necessary to
determine the foregoing covenant values.
As of the date hereof: (a) no Event of Default or Potential Default has
occurred and is continuing; (b) the representations and warranties of the
Borrowers contained in Article III of the Loan Agreement are true and correct in
all material respects as of the date hereof, except that the representations and
warranties in Section 3.4 of the Loan Agreement shall refer to the most recent
financial statements delivered to the Banks.
46
Exhibit 12.4
ASSIGNMENT
ASSIGNMENT, dated as of ___________, 200_ among ____________________
(the "Transferor Bank"), ____________________ ("Purchasing Bank"), and FIRST
UNION NATIONAL BANK, as Agent for the Banks under the Loan Agreement (as those
terms are hereafter defined).
W I T N E S S E T H:
WHEREAS, this Assignment is being executed and delivered in accordance
with Section 12.4 of the Loan and Agency Agreement dated as of September 19,
2001 among Intermagnetics General Corporation, IGC-APD Cryogenics Inc., Medical
Advances, Inc., IGC-Polycold Systems, Inc. and IGC-Superpower, LLC (each a
"Borrower" and collectively, the "Borrowers"), the financial institutions named
therein or which hereafter become a party thereto (each a "Bank" and
collectively, the "Banks"), First Union National Bank ("First Union"), as agent
for Banks (First Union in such capacity, "Agent"), The Chase Manhattan Bank
("Chase"), as syndication agent for Banks (Chase in such capacity, "Syndication
Agent"), and KeyBank National Association ("Key"), as documentation agent for
Banks (Key in such capacity, "Documentation Agent") (as same may be amended,
restated, modified or supplemented from time to time, the "Loan Agreement");
WHEREAS, Purchasing Bank wishes to become a Bank party to the Loan
Agreement; and
WHEREAS, the Transferor Bank is selling and assigning to Purchasing
Bank rights, obligations and commitments under the Loan Agreement;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. All capitalized terms used herein which are not defined shall have
the meanings given to them in the Loan Agreement.
2. Upon receipt by the Agent of four counterparts of this Assignment,
to each of which is attached a fully completed Schedule I, and each of which has
been executed by Transferor Bank and Agent, Agent will transmit to Transferor
Bank and Purchasing Bank a transfer effective notice, substantially in the form
of Schedule II to this Assignment (a "Transfer Effective Notice"). Such Transfer
Effective Notice shall set forth, inter alia, the date on which the transfer
effected by this Assignment shall become effective (the "Transfer Effective
Date"), which date shall not be earlier than the first Business Day following
the date such Transfer Effective Notice is received. From and after the Transfer
Effective Date, Purchasing Bank shall be a Bank party to the Loan Agreement for
all purposes thereof.
3. At or before 12:00 Noon (New York City time) on the Transfer
Effective Date, Purchasing Bank shall pay to Transferor Bank, in immediately
available funds, an amount equal to the purchase price, as agreed between
Transferor Bank and such Purchasing Bank (the "Purchase Price"), of the portion
of the Advances being purchased by such Purchasing Bank (such Purchasing Bank's
"Purchased Percentage") of the outstanding Loan amounts and other amounts owing
to the Transferor Bank under the Loan Agreement and the Notes. Effective upon
receipt by Transferor Bank of the Purchase Price from a Purchasing Bank,
Transferor Bank hereby irrevocably sells, assigns and transfers to such
Purchasing Bank, without recourse, representation or warranty, and Purchasing
Bank hereby irrevocably purchases, takes and assumes from Transferor Bank, such
Purchasing Bank's Purchased Percentage of the Loans and other amounts owing to
the Transferor Bank under the Loan Agreement and the Notes together with all
instruments, documents and collateral security pertaining thereto.
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4. Transferor Bank has made arrangements with Purchasing Bank with
respect to (i) the portion, if any, to be paid, and the date or dates for
payment, by Transferor Bank to such Purchasing Bank of any fees heretofore
received by Transferor Bank pursuant to the Loan Agreement prior to the Transfer
Effective Date and (ii) the portion, if any, to be paid, and the date or dates
for payment, by such Purchasing Bank to Transferor Bank of fees or interest
received by such Purchasing Bank pursuant to the Loan Agreement from and after
the Transfer Effective Date.
5. (a) All principal payments that would otherwise be payable from and
after the Transfer Effective Date to or for the account of Transferor Bank
pursuant to the Loan Agreement and the Notes shall, instead, be payable to or
for the account of Transferor Bank and Purchasing Bank, as the case may be, in
accordance with their respective interests as reflected in this Assignment.
(b) All interest, fees and other amounts that would otherwise accrue
for the account of Transferor Bank from and after the Transfer Effective Date
pursuant to the Loan Agreement and the Notes shall, instead, accrue for the
account of, and be payable to, Transferor Bank and Purchasing Bank, as the case
may be, in accordance with their respective interests as reflected in this
Assignment. In the event that any amount of interest, fees or other amounts
accruing prior to the Transfer Effective Date was included in the Purchase Price
paid by any Purchasing Bank, Transferor Bank and Purchasing Bank will make
appropriate arrangements for payment by Transferor Bank to such Purchasing Bank
of such amount upon receipt thereof from Borrowers.
6. (a) Concurrently with the execution and delivery hereof, Transferor
Bank will provide to Purchasing Bank conformed copies of the Loan Agreement and
all related documents delivered to Transferor Bank.
(b) Two (2) Business Days after the Transfer Effective Date, (i)
Transferor Bank shall deliver to the Agent its Notes and (ii) Borrowers shall
deliver to Agent new Notes for Purchasing Bank in the principal amount
reflecting, in accordance with the Loan Agreement, its Commitment Percentage.
The new Notes shall be dated the Transfer Effective Date and shall state that
they are delivered in substitution for the Notes executed for Transferor Bank.
Promptly after the Transfer Effective Date, Agent will send to the Purchasing
Bank its new Notes and the Agent will surrender the superseded Notes in exchange
therefor to Borrowers, marked "Cancelled by Substitution".
7. Each of the parties to this Assignment agrees that at any time and
from time to time upon the written request of any other party, it will execute
and deliver such further documents and do such further acts and things as such
other party may reasonably request in order to effect the purposes of this
Assignment.
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8. By executing and delivering this Assignment, Transferor Bank and
Purchasing Bank confirm to and agree with each other and Agent and Banks as
follows: (i) other than the representation and warranty that it is the legal and
beneficial owner of the interest being assigned hereby free and clear of any
adverse claim, Transferor Bank makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or representations
made in or in connection with the Loan Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Agreement, the Notes or any other instrument or document furnished pursuant
thereto; (ii) Transferor Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of Borrowers or the
performance or observance by Borrowers of any of their Obligations under the
Loan Agreement, the Notes or any other instrument or document furnished pursuant
hereto; (iii) Purchasing Bank confirms that it has received a copy of the Loan
Agreement, together with copies of such financial statements and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment; (iv) Purchasing Bank will,
independently and without reliance upon Agent, Transferor Bank or any other
Banks 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 the Loan Agreement; (v) Purchasing Bank appoints and authorizes
Agent to take such action as agent on its behalf and to exercise such powers
under the Loan Agreement as are delegated to the Agent by the terms thereof;
(vi) Purchasing Bank agrees that it will perform all of its respective
obligations and exercise all of its rights as set forth in the Loan Agreement to
be performed or exercised by each as a Bank; and (vii) Purchasing Bank
represents and warrants to Transferor Bank, all other Banks, Agent and Borrowers
that it is either (x) entitled to the benefits of an income tax treaty with the
United States of America that provides for an exemption from the United States
withholding tax on interest and other payments made by Borrowers under the Loan
Agreement and the Loan Documents or (y) is engaged in trade or business within
the United States of America.
9. Schedule I hereto sets forth the revised Commitment Percentages of
Transferor Bank and the Commitment Percentage of Purchasing Bank as well as
administrative information with respect to Purchasing Bank.
10. This Assignment shall be governed by, and construed in accordance
with, the laws of the State of New York without giving effect to conflict of
laws or choice of law principles.
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment to
be executed by their respective duly authorized officers on the date set forth
above.
------------------------,
as Transferor Bank
By:
----------------------------
Name:
Title:
------------------------,
as Purchasing Bank
By:
----------------------------
Name:
Title:
FIRST UNION NATIONAL BANK,
as Agent for Banks
By:
----------------------------
Name:
Title:
ACCEPTED AND AGREED TO
BY:
INTERMAGNETICS GENERAL CORPORATION
IGC-APD CRYOGENICS INC.
MEDICAL ADVANCES, INC.
IGC-POLYCOLD SYSTEMS, INC.
IGC-SUPERPOWER, LLC
By:
----------------------------
Name:
Title:
50
