EXHIBIT 4.1
CREDIT AGREEMENT
dated as of September 30, 1999
among
BIO-RAD LABORATORIES, INC.,
THE LENDERS,
BANK ONE, NA,
as Administrative Agent,
ABN AMRO BANK N.V.
as Syndication Agent,
and
UNION BANK OF CALIFORNIA, N.A.
as Documentation Agent
TABLE OF CONTENTS
SECTION PAGE
ARTICLE I
DEFINITIONS..................................................1
ARTICLE II
THE CREDITS.................................................20
2.1. The Loans............................................20
2.1.1 Term Loans.................................... 20
2.1.2 Revolving Loans................................20
2.2. Repayment............................................21
2.2.1. Term Loans....................................21
2.2.2. Revolving Loans...............................22
2.3. Ratable Loans; Types of Advances.....................22
2.4. Letters of Credit....................................22
2.4.1. Letter of Credit Facility.....................22
2.4.2. Letter of Credit Participation................22
2.4.3. Reimbursement Obligation......................23
2.4.4. Cash Collateral...............................23
2.4.5. Letter of Credit Fees.........................24
2.4.6. Indemnification; Exoneration..................24
2.4.7. Transitional Letter of Credit Provisions......25
2.5. Commitment Fee; Reductions in Aggregate Commitment...25
2.6. Minimum Amount of Each Advance.......................26
2.7. Prepayments..........................................26
2.7.1. Optional Principal Payments...................26
2.7.2. Mandatory Prepayments of the Term Loans......26
2.8. Method of Selecting Types and Interest Periods
for New Advances....................................28
2.9. Conversion and Continuation of Outstanding Advances..28
2.10. Changes in Interest Rate, etc........................29
2.11. Rates Applicable After Default.......................29
2.12. Method of Payment....................................30
2.13. Noteless Agreement; Evidence of Indebtedness.........30
2.14. Telephonic Notices...................................32
2.15. Interest Payment Dates; Interest and Fee Basis.......32
2.16. Notification of Advances, Interest Rates,
Prepayments and Commitment Reductions...............33
2.17. Lending Installations................................33
2.18. Non-Receipt of Funds by the Agent....................33
2.19. Replacement of Lender................................33
2.20. Market Disruption....................................34
2.21. Judgment Currency....................................34
ARTICLE III
YIELD PROTECTION; TAXES.....................................35
3.1. Yield Protection.....................................35
3.2. Changes in Capital Adequacy Regulations..............36
3.3. Availability of Types of Advances....................36
3.4. Funding Indemnification..............................36
3.5. Taxes................................................37
3.6. Lender Statements; Survival of Indemnity.............39
ARTICLE IV
CONDITIONS PRECEDENT........................................40
4.1. Initial Advance......................................40
4.2. Each Advance and Letter of Credit....................40
ARTICLE V
REPRESENTATIONS AND WARRANTIES..............................41
5.1. Existence and Standing...............................41
5.2. Authorization and Validity...........................41
5.3. No Conflict; Government Consent......................41
5.4. Financial Statements.................................42
5.5. Material Adverse Change..............................42
5.6. Taxes................................................42
5.7. Litigation and Contingent Obligations................43
5.8. Subsidiaries.........................................43
5.9. ERISA................................................43
5.10. Accuracy of Information..............................43
5.11. Regulation U.........................................43
5.12. Material Agreements..................................43
5.13. Compliance With Laws.................................44
5.14. Ownership of Properties..............................44
5.15. Plan Assets; Prohibited Transactions.................44
5.16. Environmental Matters................................44
5.17. Investment Company Act...............................45
5.18. Public Utility Holding Company Act...................45
5.19. Year 2000............................................45
5.20. Subordinated Indebtedness............................45
5.21. Post-Retirement Benefits.............................45
5.22. Insurance............................................45
5.23. The PSD Acquisition..................................45
5.24. Solvency.............................................46
ii
ARTICLE VI
COVENANTS...................................................47
6.1. Financial Reporting..................................47
6.2. Use of Proceeds......................................48
6.3. Notice of Default....................................48
6.4. Conduct of Business..................................49
6.5. Taxes................................................49
6.6. Insurance; Insurance and Condemnation Proceeds.......49
6.7. Compliance with Laws.................................50
6.8. Maintenance of Properties............................50
6.9. Inspection...........................................51
6.10. Dividends............................................51
6.11. Indebtedness.........................................51
6.12. Merger...............................................52
6.13. Sale of Assets.......................................52
6.14. Investments and Acquisitions.........................53
6.15. Liens................................................54
6.16. Capital Expenditures.................................55
6.17. Limitation on Negative Pledge Clauses and Payment
Restrictions Affecting Subsidiaries.................55
6.18. Year 2000............................................57
6.19. Affiliates...........................................57
6.20. Unfunded Liabilities.................................57
6.21. Subordinated Indebtedness............................57
6.22. Required Rate Management Transactions................57
6.23. Sale and Leaseback Transactions......................58
6.24. Contingent Obligations...............................58
6.25. Financial Contracts..................................58
6.26. Financial Covenants..................................58
6.26.1. Interest Coverage Ratio.....................58
6.26.2. Fixed Charge Coverage Ratio.................58
6.26.3. Leverage Ratio..............................59
6.26.4. Senior Leverage Ratio.......................59
6.26.5. Minimum Net Worth...........................59
6.26.6. Pro Forma Calculation.......................59
6.27. Fiscal Year..........................................59
6.28. Guarantors; Pledges of Stock of Foreign
Subsidiaries........................................60
6.29. Future Liens on Real Property........................60
6.30. Surveys of Mortgaged Property........................61
ARTICLE VII
DEFAULTS....................................................61
iii
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES..............64
8.1. Acceleration.........................................64
8.2. Amendments...........................................64
8.3. Preservation of Rights...............................66
ARTICLE IX
GENERAL PROVISIONS..........................................66
9.1. Survival of Representations..........................66
9.2. Governmental Regulation..............................66
9.3. Headings.............................................66
9.4. Entire Agreement.....................................66
9.5. Several Obligations; Benefits of this Agreement......66
9.6. Expenses; Indemnification............................67
9.7. Numbers of Documents.................................67
9.8. Accounting...........................................67
9.9. Severability of Provisions...........................67
9.10. Nonliability of Lenders..............................67
9.11. Confidentiality......................................68
9.12. Disclosure...........................................69
9.13. Performance of Obligations...........................69
9.14. Waiver of Notice.....................................69
ARTICLE X
THE AGENT...................................................70
10.1. Appointment; Nature of Relationship..................70
10.2. Powers...............................................70
10.3. General Immunity.....................................70
10.4. No Responsibility for Loans, Recitals, etc...........70
10.5. Action on Instructions of Lenders....................71
10.6. Employment of Agents and Counsel.....................71
10.7. Reliance on Documents; Counsel.......................71
10.8. Agent's Reimbursement and Indemnification............71
10.9. Notice of Default....................................72
10.10. Rights as a Lender...................................72
10.11. Lender Credit Decision...............................72
10.12. Successor Agent......................................72
10.13. Agent's Fee..........................................73
10.14. Delegation to Affiliates.............................73
10.15. Execution of Collateral Documents....................73
10.16. Collateral Releases..................................73
10.17. Co-Agents, etc.......................................74
iv
ARTICLE XI
SETOFF; RATABLE PAYMENTS....................................74
11.1. Setoff...............................................74
11.2. Ratable Payments.....................................74
11.3. Application of Payments..............................74
11.4. Relations Among Lenders..............................75
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS...........76
12.1. Successors and Assigns...............................76
12.2. Participations.......................................76
12.2.1. Permitted Participants; Effect..............76
12.2.2. Voting Rights...............................77
12.2.3. Benefit of Setoff...........................77
12.3. Assignments..........................................77
12.3.1. Permitted Assignments.......................77
12.3.2. Effect; Effective Date......................78
12.4. Dissemination of Information.........................78
12.5. Tax Treatment........................................78
ARTICLE XIII
NOTICES.....................................................79
13.1. Notices..............................................79
13.2. Change of Address....................................79
ARTICLE XIV
COUNTERPARTS................................................79
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL......................................................79
15.1. CHOICE OF LAW........................................79
15.2. CONSENT TO JURISDICTION..............................80
15.3. WAIVER OF JURY TRIAL.................................80
v
EXHIBITS
Exhibit A - Form of Compliance Certificate
Exhibit B - Form of Assignment Agreement
Exhibit C-1 - Form of Term Note
Exhibit C-2 - Form of Revolving Note
SCHEDULES
Pricing Schedule
Schedule 2.4 - Existing Letters of Credit
Schedule 4.1 - List of Closing Documents
Schedule 5.4 - Pro Forma Financial Statements
Schedule 5.7 - Litigation
Schedule 5.8 - Subsidiaries
Schedule 5.22 - Insurance
Schedule 6.11 - Indebtedness
Schedule 6.14 - Investments
Schedule 6.15 - Liens
vi
CREDIT AGREEMENT
This Agreement, dated as of September 30, 1999, is among
Bio-Rad Laboratories, Inc., the Lenders, Bank One, NA, having its
principal office in Chicago, Illinois, as Administrative Agent,
ABN AMRO Bank N.V., as Syndication Agent, and Union Bank of
California, N.A., as Documentation Agent. The parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Acquired Business" is defined in the definition of "PSD
Acquisition."
"Acquired Indebtedness" means Indebtedness of any Person
existing at the time such Person becomes a Subsidiary or is
merged or consolidated into the Borrower or one of its Subsidiaries.
"Acquisition" means any transaction, or any series of
related transactions, consummated on or after the date of this
Agreement, by which the Borrower or any of its Subsidiaries (i)
acquires any going business or all or substantially all of the
assets of any firm, corporation or limited liability company, or
division thereof, whether through purchase of assets, merger or
otherwise or (ii) directly or indirectly acquires (in one
transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the
securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such
power only by reason of the happening of a contingency) or a
majority (by percentage or voting power) of the outstanding
ownership interests of a partnership or limited liability
company.
"Advance" means a borrowing hereunder, (i) made by the
Lenders on the same Borrowing Date, or (ii) converted or
continued by the Lenders on the same date of conversion or
continuation, consisting, in either case, of the aggregate amount
of the several Loans of the same Type and, in the case of
Eurocurrency Loans, in the same currency and for the same
Interest Period.
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control
with such Person. A Person shall be deemed to control another
Person if the controlling Person owns 20% or more of any class of
voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power
to direct or cause the direction of the management or policies of
the controlled Person, whether through ownership of stock, by
contract or otherwise. Any member of the Xxxxxxxx Group shall be
deemed to be an Affiliate of the Borrower.
"Agent" means Bank One in its capacity as contractual
representative of the Lenders pursuant to Article X, and not in
its individual capacity as a Lender, and any successor Agent
appointed pursuant to Article X.
"Aggregate Commitment" means the aggregate of the
Commitments of all the Lenders, as reduced from time to time
pursuant to the terms hereof.
"Agreed Currencies" means (i) Dollars and (ii) so long as
such currency remains an Eligible Currency, the Euro.
"Agreement" means this credit agreement, as it may be
amended or modified and in effect from time to time.
"Agreement Accounting Principles" means generally accepted
accounting principles as in effect from time to time.
"Alternate Base Rate" means, for any day, a rate of interest
per annum equal to the higher of (i) the Corporate Base Rate for
such day and (ii) the sum of the Federal Funds Effective Rate for
such day plus 1/2% per annum.
"Applicable Fee Rate" means, at any time, the percentage
rate per annum at which commitment fees or letter of credit fees
are accruing on the unused portion of the Aggregate Commitment or
on the amount available for drawing under outstanding Letters of
Credit, respectively, at such time as set forth in the Pricing
Schedule.
"Applicable Margin" means, with respect to Advances of any
Type at any time, the percentage rate per annum which is
applicable at such time with respect to Advances of such Type as
set forth in the Pricing Schedule.
"Applicable Percentage" means, (i) with respect to Excess
Cash Flow for any fiscal year of the Borrower, 90% if the
Leverage Ratio as of the last day of such fiscal year was greater
than or equal to 4.00 to 1; 75% if the Leverage Ratio as of the
last day of such fiscal year was greater than or equal to 3.50 to
1 and less than 4.00 to 1; 50% if the Leverage Ratio as of the
last day of such fiscal year was greater than or equal to 3.00 to
1 and less than 3.50 to 1; and 0% if the Leverage Ratio as of the
last day of such fiscal year was less than 3.00 to 1; and (ii)
with respect to any Asset Sale, 50% if the Leverage Ratio as of
the last day of the most recently ended fiscal period for which
the Borrower has delivered financial statements pursuant to
Section 6.1(i) or (ii) was greater than or equal to 3.50 to 1;
25% if the Leverage ratio as of the last day of such fiscal
period was greater than or equal to 3.00 to 1 and less than 3.50
to 1; and 0% if the Leverage Ratio as of the last day of such
fiscal period was less than 3.00 to 1; provided that, with
respect to any Asset Sale, the Leverage Ratio shall be deemed to
be greater than or equal to 3.50 to 1 until the Borrower shall
have delivered annual financial statements pursuant to Section
6.1(i) for the fiscal year ending December 31, 1999.
2
"Arranger" means Banc One Capital Markets, Inc., a Delaware
corporation, and its successors.
"Article" means an article of this Agreement unless another
document is specifically referenced.
"Asset Sale" means, with respect to any Person, the sale,
conveyance, disposition or other transfer by such Person of any
of its assets (including by way of a sale-leaseback transaction
and including the sale or other transfer of any of the Equity
Interests of any Subsidiary of such Person), other than the sale
of inventory in the ordinary course of business and of obsolete
or worn-out property in the ordinary course of business, the
exchange or trade-in of equipment and other assets for
replacement assets and the granting of a nonexclusive license.
"Asset Sale" shall not include (i) any casualty to or
condemnation of property to which Section 6.6 applies, whether
the proceeds thereof are Excluded Proceeds or otherwise, or (ii)
the sale, conveyance, disposition or other transfer by a Foreign
Subsidiary of any of its assets to the extent that the Net Cash
Proceeds thereof are invested in assets or property (other than
Cash Equivalent Investments) in any Foreign Subsidiary's business
within twelve months after such sale, conveyance, disposition or
other transfer.
"Authorized Officer" means any of the Chairman, President,
any Vice President, Chief Financial Officer or Treasurer of the
Borrower, acting singly, provided that the Agent shall have
received an incumbency certificate identifying such officer by
name and title and bearing such officer's signature.
"Available Net Cash Proceeds" is defined in Section
2.7.2(a).
"Bank One" means Bank One, NA, having its principal office
in Chicago, Illinois, in its individual capacity, and its
successors.
"Borrower" means Bio-Rad Laboratories, Inc., a Delaware
corporation, and its successors and assigns.
"Borrowing Date" means a date on which an Advance is made
hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Bridge Loan" means the bridge loan in the initial principal
amount of $100,000,000 made to the Borrower on the Closing Date
pursuant to the Bridge Loan Agreement, including any increase in
such principal amount as a result of the capitalization of
interest thereon and including any Rollover Bridge Notes and
Exchange Notes, as defined in the Bridge Loan Agreement; provided
that the Exchange Notes shall be issued pursuant to an indenture
all of the terms and conditions of which are reasonably
acceptable to the Agent and the Required Lenders, and provided
further that terms and conditions substantially similar to those
contained in the Description of Notes shall be deemed to be
reasonably acceptable.
3
"Bridge Loan Agreement" means the Senior Subordinated Credit
Agreement dated as of September 30, 1999 among the Borrower, the
lenders named therein and Banc One Capital Markets, Inc., as
agent for such lenders, together with any notes issued pursuant
thereto.
"Business Day" means (i) with respect to any borrowing,
payment or rate selection of Eurocurrency Advances, a day (other
than a Saturday or Sunday) on which banks generally are open in
Chicago, New York and Los Angeles for the conduct of
substantially all of their commercial lending activities,
interbank wire transfers can be made on the Fedwire system and
dealings in Dollars and the other Agreed Currencies are carried
on in the London interbank market (and, if the Advances which are
the subject of such borrowing, payment or rate selection are
denominated in Euro, a day upon which such clearing system as is
determined by the Agent to be suitable for clearing or settlement
of the Euro is open for business) and (ii) for all other
purposes, a day (other than a Saturday or Sunday) on which banks
generally are open in Chicago for the conduct of substantially
all of their commercial lending activities and interbank wire
transfers can be made on the Fedwire system.
"Capital Expenditures" means, without duplication, any
expenditures for any purchase or other acquisition of any asset
which would be classified as a fixed or capital asset on a
consolidated balance sheet of the Borrower and its Subsidiaries
prepared in accordance with Agreement Accounting Principles,
excluding (i) the trade-in value of equipment or other assets
exchanged for replacement assets, (ii) expenditures of insurance
proceeds to rebuild or replace any asset after a casualty loss,
(iii) the PSD Acquisition and (iv) Permitted Acquisitions.
"Capitalized Lease" of a Person means any lease of Property
by such Person as lessee which would be capitalized on a balance
sheet of such Person prepared in accordance with Agreement
Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount
of the obligations of such Person under Capitalized Leases which
would be shown as a liability on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) direct obligations
issued or fully guaranteed by the United States of America or
issued by any agency thereof and backed by the full faith and
credit of the United States, in each case maturing within one
year from the date of acquisition thereof, (ii) commercial paper
rated A-1 or better by S&P or P-1 or better by Xxxxx'x, (iii)
demand deposit accounts maintained in the ordinary course of
business, (iv) certificates of deposit issued by and time
deposits with commercial banks (whether domestic or foreign)
having capital and surplus in excess of $100,000,000 and (v)
mutual funds that invest solely in one or more of the types of
investments described in clauses (i)-(iv) above; provided in each
case that the same provides for payment of both principal and
interest (and not principal alone or interest alone) and is not
subject to any contingency regarding the payment of principal or
interest.
"Change in Control" means:
4
(i) any merger or consolidation of the Borrower with
or into any Person or any sale, transfer or other
conveyance, whether direct or indirect, of all or
substantially all of the Borrower's assets, on a
consolidated basis, in one transaction or a series of
related transactions, if, immediately after giving effect to
such transaction(s), either (x) any "person" or "group"
(other than a member of the Xxxxxxxx Group) is or becomes
the "beneficial owner," directly or indirectly, of more than
40% of the Voting Equity Interests of the transferee(s) or
surviving entity or entities, and the Xxxxxxxx Group shall
cease to own beneficially at least a greater percentage of
the Voting Equity Interests of the transferee(s) or
surviving entity or entities or (y) the Xxxxxxxx Group shall
cease to own beneficially (A) 30% of the Voting Equity
Interests of such transferee(s) or surviving entity or
entities or (B) a greater percentage of the Voting Equity
Interests of such transferee(s) or surviving entity or
entities than any other person or group, whichever is less;
(ii) any "person" or "group" (other than a member of
the Xxxxxxxx Group) is or becomes the "beneficial owner,"
directly or indirectly, of more than 40% of the Borrower's
Voting Equity Interests, and the Xxxxxxxx Group shall cease
to own beneficially at least a greater percentage of the
Borrower's Voting Equity Interests;
(iii) the Continuing Directors cease for any reason to
constitute a majority of the Borrower's Board of Directors
then in office;
(iv) the Borrower adopts a plan of liquidation or
dissolution; or
(v) any "Change in Control" or "Change of Control" as
defined in any agreement governing Subordinated Indebtedness
occurs and as a result thereof the Borrower is required to prepay
or repurchase, or make an offer to prepay or repurchase, such
Subordinated Indebtedness.
"Closing Date" means the date on which the PSD Acquisition
closes and the initial Advances are made under this Agreement.
"Code" means the Internal Revenue Code of 1986, as amended,
reformed or otherwise modified from time to time.
"Collateral" means all property and interests in property
now owned or hereafter acquired by the Borrower or any of its
Subsidiaries in or upon which a security interest, lien or
mortgage is granted to the Agent, for the benefit of the Holders
of Secured Obligations, or to the Agent, for the benefit of the
Lenders, whether under any Collateral Document or under any of
the other Loan Documents.
"Collateral Documents" means, collectively, all agreements,
instruments and documents executed in connection with this
Agreement that are intended to create or evidence Liens to secure
the Secured Obligations or any Guaranty of the Secured Obligations,
including, without limitation, all security agreements, pledge
agreements, mortgages, deeds of trust, powers, assignments and financing
5
statements, whether heretofore, now, or hereafter executed by or on
behalf of the Borrower or any of its Subsidiaries and delivered to the
Agent or any of the Lenders, together with all agreements and documents
referred to therein or contemplated thereby.
"Commitment" means, for each Lender, the obligation of such
Lender pursuant to Section 2.1.2 to make Revolving Loans and
pursuant to Section 2.4.2 to purchase participations in Letters
of Credit not exceeding the amount set forth opposite its
signature below or as set forth in any Notice of Assignment
relating to any assignment that has become effective pursuant to
Section 12.3.2, as such amount may be modified from time to time
pursuant to the terms hereof.
"Computation Date" is defined in Section 2.1.2(b).
"Consolidated Capital Expenditures" means, with reference to
any period, the Capital Expenditures of the Borrower and its
Subsidiaries calculated on a consolidated basis for such period.
"Consolidated EBITDA" means, with reference to any period,
Consolidated Net Income for such period plus, to the extent
deducted from revenues in determining Consolidated Net Income
(without duplication), (i) Consolidated Interest Expense and all
non-cash interest expense, (ii) expense for income taxes paid or
accrued, (iii) depreciation, (iv) amortization, (v) extraordinary
losses incurred other than in the ordinary course of business and
losses from discontinued operations, (vi) any extraordinary,
unusual or non-recurring non-cash expenses or non-cash losses,
and (vii) non-recurring cash charges, including any capitalized
non-recurring cash charges, taken on or prior to March 31, 2000
resulting from severance, integration and other adjustments made
as a result of the PSD Acquisition (provided that the amounts
referred to in this clause (vii) shall not, in the aggregate,
exceed $25,000,000), and minus, to the extent included in
Consolidated Net Income, extraordinary gains and gains from
discontinued operations, all net of tax, realized other than in
the ordinary course of business, all calculated for the Borrower
and its Subsidiaries on a consolidated basis for such period.
"Consolidated Funded Indebtedness" means at any time,
without duplication, the aggregate dollar amount of (i)
Indebtedness (other than Rate Management Obligations and similar
obligations under other Financial Contracts) of the Borrower and
its Subsidiaries which has actually been funded and is
outstanding at such time, whether or not such amount is due and
payable at such time, plus (ii) undrawn amounts available under
standby letters of credit, all calculated on a consolidated basis
as of such time.
"Consolidated Interest Expense" means, with reference to any
period, the cash interest expense of the Borrower and its
Subsidiaries calculated on a consolidated basis for such period.
"Consolidated Net Income" means, with reference to any
period, the net income (or loss) of the Borrower and its
Subsidiaries calculated on a consolidated basis for such period.
"Consolidated Net Worth" means at any time the consolidated
6
stockholders' equity of the Borrower and its Subsidiaries
calculated on a consolidated basis as of such time, but without
regard to foreign currency translation adjustments made after
September 30, 1999.
"Contingent Obligation" of a Person means any agreement,
undertaking or arrangement by which such Person assumes,
guarantees, endorses, contingently agrees to purchase or provide
funds for the payment of, or otherwise becomes or is contingently
liable upon, the Indebtedness of any other Person, or agrees to
maintain the net worth or working capital or other financial
condition of any other Person, or otherwise assures any creditor
of such other Person against loss, including, without limitation,
any comfort letter or material take-or-pay contract.
"Continuing Directors" means, during any period of 12
consecutive months after the Closing Date, individuals who at the
beginning of any such 12-month period constituted the Borrower's
Board of Directors (together with any new directors whose
election by such Board of Directors or whose nomination for
election by the Borrower's shareholders was approved by a vote of
a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or
nomination for election was previously so approved, including new
directors designated in or provided for in an agreement regarding
the merger, consolidation or sale, transfer or other conveyance,
of all or substantially all of the assets of the Borrower, if
such agreement was approved by a vote of such majority of
directors).
"Conversion/Continuation Notice" is defined in Section 2.9.
"Controlled Group" means all members of a controlled group
of corporations or other business entities and all trades or
businesses (whether or not incorporated) under common control
which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under Section 414 of the Code.
"Corporate Base Rate" means a rate per annum equal to the
corporate base rate of interest announced by Bank One from time
to time, changing when and as said corporate base rate changes.
"Default" means an event described in Article VII.
"Description of Notes" means the section entitled
"Description of Notes" contained in the Borrower's Preliminary
Offering Memorandum, dated September 15, 1999, with respect to
$125,000,000 of __% Senior Subordinated Notes due 2009.
"Dollar Amount" of any currency at any date shall mean (i)
the amount of such currency if such currency is Dollars or (ii)
the equivalent in Dollars of the amount of such currency if such
currency is any currency other than Dollars, calculated on the
basis of the arithmetical mean of the buy and sell spot rates of
exchange of the Agent for such currency on the London market at
11:00 a.m., London time, on or as of the most recent Computation
Date provided for in Section 2.1.2(b).
"Dollars" and "$" shall mean the lawful currency of the
United States of America.
7
"Domestic Subsidiary" means a Subsidiary organized under the
laws of the United States of America, any State thereof or the
District of Columbia.
"Eligible Currency" means any currency other than Dollars
(i) that is readily available, (ii) that is freely traded, (iii)
in which deposits are customarily offered to banks in the London
interbank market, (iv) which is convertible into Dollars in the
international interbank market and (v) as to which an Equivalent
Amount may be readily calculated.
"Environmental Laws" means any and all federal, state, local
and foreign statutes, laws, judicial decisions, regulations,
ordinances, rules, judgments, orders, decrees, plans,
injunctions, permits, concessions, grants, franchises, licenses,
agreements and other governmental restrictions relating to (i)
the protection of the environment, (ii) the effect of the
environment on human health, (iii) emissions, discharges or
releases of pollutants, contaminants, hazardous substances or
wastes into surface water, ground water or land, or (iv) the
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants,
hazardous substances or hazardous wastes or the clean-up or other
remediation thereof.
"Equity Interests" means (i) in the case of a corporation,
corporate stock, (ii) in the case of a limited liability company,
association or business entity, any and all shares, interests,
participations, ownership or voting rights or other equivalents
(however designated) of corporate stock, (iii) in the case of a
partnership, partnership interests (whether general or limited)
and (iv) any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of,
or distributions of assets of, the issuing Person, in each case
regardless of class or designation, and all warrants, options,
purchase rights, conversion or exchange rights, voting rights,
calls or claims of any character with respect thereto.
"Equivalent Amount" of any currency with respect to any
amount of Dollars at any date shall mean the equivalent in such
currency of such amount of Dollars, calculated on the basis of
the arithmetical mean of the buy and sell spot rates of exchange
of the Agent for such other currency at 11:00 a.m., London time,
on the date on or as of which such amount is to be determined.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any rule or regulation
issued thereunder.
"Euro" and/or "EUR" means the euro referred to in Council
Regulation (EC) No. 1103/97 dated June 17, 1997 passed by the
Council of the European Union, or, if different, the then lawful
currency of the member states of the European Union that
participate in the third stage of Economic and Monetary Union.
"Eurocurrency" means any Agreed Currency.
"Eurocurrency Advance" means an Advance which, except as
8
otherwise provided in Section 2.11, bears interest at the applicable
Eurocurrency Rate.
"Eurocurrency Loan" means a Loan which, except as otherwise
provided in Section 2.11, bears interest at the applicable
Eurocurrency Rate.
"Eurocurrency Payment Office" of the Agent shall mean, for
each of the Agreed Currencies, Bank One, Chicago, Illinois, or
such other office, branch, affiliate or correspondent bank of the
Agent as it may from time to time specify to the Borrower and
each Lender as its Eurocurrency Payment Office.
"Eurocurrency Rate" means, with respect to a Eurocurrency
Advance for the relevant Interest Period, the sum of (i) the
quotient of (a) the Eurocurrency Reference Rate applicable to
such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest
Period, plus (ii) the Applicable Margin. The Eurocurrency Rate
shall be rounded to the next higher multiple of 1/16 of 1% if the
rate is not such a multiple.
"Eurocurrency Reference Rate" means, with respect to a
Eurocurrency Advance for the relevant Interest Period, the
applicable British Bankers' Association Interest Settlement Rate
for deposits in the applicable Agreed Currency appearing on
Reuters Screen FRBD as of 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, and having a
maturity equal to such Interest Period, provided that, (i) if
Reuters Screen FRBD is not available to the Agent for any reason,
the applicable Eurocurrency Reference Rate for the relevant
Interest Period shall instead be the applicable British Bankers'
Association Interest Settlement Rate for deposits in the
Applicable Agreed Currency as reported by any other generally
recognized financial information service as of 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest
Period, and having a maturity equal to such Interest Period, and
(ii) if no such British Bankers' Association Interest Settlement
Rate is available, the applicable Eurocurrency Reference Rate for
the relevant Interest Period shall instead be the rate determined
by the Agent to be the rate at which Bank One offers to place
deposits in the applicable Agreed Currency with first-class banks
in the London interbank market at approximately 11:00 a.m.
(London time) two Business Days prior to the first day of such
Interest Period, in the approximate amount of Bank One's relevant
Eurocurrency Loan and having a maturity equal to such Interest
Period.
"Excess Cash Flow" means, for any fiscal year of the
Borrower, an amount equal to the Borrower's (i) Consolidated
EBITDA for such period, minus (ii) income taxes paid in cash for
such period, minus (iii) Consolidated Capital Expenditures paid
in cash during such period, minus (iv) Consolidated Interest
Expense for such period, minus (v) all payments of the principal
portion of the Term Loans and scheduled amortization of the
principal portion of all other term Indebtedness of the Borrower
and its Subsidiaries during such period, minus (vi) cash payments
in respect of extraordinary and nonrecurring items, minus (vii)
the increase (or plus the decrease) in Working Capital during
such period, in each case as calculated in accordance with
Agreement Accounting Principles.
9
"Excluded Taxes" means, in the case of each Lender or
applicable Lending Installation and the Agent, taxes imposed on
or measured by its overall net income or profits, and franchise
taxes imposed on it, by (i) the jurisdiction under the laws of
which such Lender or the Agent is incorporated or organized or
any political subdivision thereof or (ii) the jurisdiction in
which the Agent's or such Lender's principal executive office or
such Lender's applicable Lending Installation is located or any
political subdivision thereof.
"Exhibit" refers to an exhibit to this Agreement, unless
another document is specifically referenced.
10
"Existing Credit Agreement" means that certain Credit
Agreement dated as of May 15, 1998, as amended, among the
Borrower, the lenders party thereto and Bank One (formerly known
as The First National Bank of Chicago), as agent.
"Existing Letters of Credit" is defined in Section 2.4.7.
"Facility Termination Date" means September 30, 2004 or any
earlier date on which the Aggregate Commitment is reduced to zero
or otherwise terminated pursuant to the terms hereof.
"Federal Funds Effective Rate" means, for any day, an
interest rate per annum 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 for such day (or, if such day is not a Business
Day, for the immediately preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published
for any day which is a Business Day, the average of the
quotations at approximately 10:00 a.m. (Chicago time) on such day
on such transactions received by the Agent from three Federal
funds brokers of recognized standing selected by the Agent in its
sole discretion.
"Financial Contract" of a Person means (i) any exchange-
traded or over-the-counter futures, forward, swap or option
contract or other financial instrument with similar
characteristics or (ii) any Rate Management Transaction.
"Financing" means, with respect to any Person, the issuance
or sale by such Person of any Equity Interests of such Person or
any Indebtedness consisting of debt securities of such Person
pursuant to a registered offering or private placement, but
excluding the issuance or sale of (i) any Indebtedness permitted
to be incurred pursuant to Section 6.11, including, without
limitation, the Subordinated Indebtedness, (ii) Equity Interests
by the Borrower to any officer, director or employee of the
Borrower or any of its Subsidiaries pursuant to any incentive
compensation plan or program and (iii) Equity Interests or
Indebtedness by any Subsidiary of the Borrower to the Borrower or
any Wholly-Owned Subsidiary of the Borrower.
"Floating Rate" means, for any day, a rate per annum equal
to (i) the Alternate Base Rate for such day plus (ii) the
Applicable Margin, in each case changing when and as the
Alternate Base Rate or Applicable Margin, as applicable, changes.
"Floating Rate Advance" means an Advance which, except as
otherwise provided in Section 2.11, bears interest at the
Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Foreign Subsidiary" means any Subsidiary that is not a
Domestic Subsidiary.
11
"Genetic Systems" means Genetic Systems Corporation, a
Delaware corporation.
"Governmental Authority" means any nation or government, any
federal, state, local or other political subdivision thereof and
any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government.
"Guarantor" means each Subsidiary that executes a Guaranty
pursuant to the terms of Section 6.28, and its successors and
assigns.
"Guaranty" means an unconditional guaranty of payment of the
Secured Obligations, in form and substance satisfactory to the
Agent, executed by any Subsidiary pursuant to the terms of
Section 6.28, in each case as the same may from time to time be
amended, modified, supplemented and/or restated.
"Holders of Secured Obligations" shall mean the holders of
the Secured Obligations from time to time and shall include their
respective successors, transferees and assigns.
"Indebtedness" of a Person means, without duplication, such
Person's (i) obligations for borrowed money, (ii) obligations
representing the deferred purchase price of Property or services
(other than accounts payable arising in the ordinary course of
such Person's business payable on terms customary in the trade),
(iii) obligations which are evidenced by notes, acceptances, or
other instruments, (iv) obligations of such Person to purchase
securities or other Property arising out of or in connection with
the sale of the same or substantially similar securities or
Property, (v) Capitalized Lease Obligations, (vi) reimbursement
obligations with respect to standby letters of credit, whether
drawn or undrawn, (vii) Rate Management Obligations, (viii) Off-
Balance Sheet Liabilities, (ix) all liabilities and obligations
of the type described in the preceding clauses (i) through (viii)
of any other Person that such Person has assumed or guaranteed or
that are secured by a Lien on any Property of such Person
(provided that if any such liability or obligation of such other
Person is not the legal liability of such Person, the amount
thereof shall be deemed to be the lesser of (1) the actual amount
of such liability or obligation and (2) the book value of such
Person's Property securing such liability or obligation), and (x)
any other obligation for borrowed money or other financial
accommodation which in accordance with Agreement Accounting
Principles would be shown as a liability on the consolidated
balance sheet of such Person.
"Interest Period" means, with respect to a Eurocurrency
Advance, a period of one, two, three or six months (or, if then
available to all Lenders, nine or twelve months) commencing on a
Business Day selected by the Borrower pursuant to this Agreement.
Such Interest Period shall end on the day which corresponds
numerically to such date the applicable number of months
thereafter, provided, however, that if there is no such
numerically corresponding day in such succeeding month, such
Interest Period shall end on the last Business Day of such
succeeding month. If an Interest Period would otherwise end on a
day which is not a Business Day, such Interest Period shall end
on the next succeeding Business Day, provided, however, that if
said next succeeding Business Day falls in a new calendar month,
such Interest Period shall end on the immediately preceding
Business Day.
12
"Investment" of a Person means any loan, advance (other than
commission, travel and similar advances to officers and employees
made in the ordinary course of business), extension of credit
(other than accounts or notes receivable arising in the ordinary
course of business on terms customary in the trade) or
contribution of capital by such Person; stocks, bonds, mutual
funds, partnership interests, notes, debentures or other
securities (other than treasury stock) owned by such Person; any
deposit accounts and certificate of deposit owned by such Person;
and structured notes, derivative financial instruments and other
similar instruments or contracts owned by such Person. Payment
by a Person under a guaranty by such Person of Indebtedness of
another Person shall be deemed to be an Investment by such Person
in such other Person in the amount of such payment.
"Issuing Lender" means Bank One and any other Lender that
agrees, in its sole discretion, to issue Letters of Credit
hereunder, and with respect to the Existing Letters of Credit
only, "Issuing Lender" means Bank One, ABN AMRO Bank N.V. or
Union Bank of California, as applicable.
"L/C Draft" means a draft drawn on the Issuing Lender
pursuant to a Letter of Credit.
"L/C Interest" shall have the meaning ascribed to such term
in Section 2.4.2.
"L/C Obligations" means, without duplication, an amount
equal to the sum of (i) the aggregate of the amount then
available for drawing under each of the Letters of Credit, (ii)
the face amount of all outstanding L/C Drafts corresponding to
the Letters of Credit, which L/C Drafts have been accepted by the
Issuing Lender, (iii) the aggregate outstanding amount of all
Reimbursement Obligations at such time and (iv) the aggregate
face amount of all Letters of Credit requested by the Borrower
but not yet issued (unless the request for an unissued Letter of
Credit has been denied).
"Lenders" means the lending institutions listed on the
signature pages of this Agreement and their respective successors
and assigns.
"Lending Installation" means, with respect to a Lender or
the Agent, the office, branch, subsidiary or affiliate of such
Lender or the Agent listed on the administrative information
sheets provided to the Agent in connection herewith or otherwise
selected by such Lender or the Agent pursuant to Section 2.17.
"Letter of Credit" means any letter of credit issued or to
be issued by the Issuing Lender pursuant to Section 2.4.1 and any
Existing Letter of Credit.
"Leverage Ratio" means, as of any date of calculation, the
ratio of (i) Consolidated Funded Indebtedness outstanding on such
date to (ii) Consolidated EBITDA for the Borrower's then most-
recently ended four fiscal quarters.
"Lien" means any lien (statutory or other), mortgage,
pledge, hypothecation, assignment, deposit arrangement,
encumbrance or preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever
13
(including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other
title retention agreement).
"Loan" means a Revolving Loan or a Term Loan.
"Loan Documents" means this Agreement, any Notes issued
pursuant to Section 2.13, any Guaranty, the Collateral Documents
and the other documents and agreements contemplated hereby and
executed by the Borrower in favor of the Agent or any Lender.
"Loan Parties" means the Borrower and each Guarantor.
"Material Adverse Effect" means a material adverse effect on
(i) the business, Property, condition (financial or otherwise) or
results of operations of the Borrower and its Subsidiaries taken
as a whole, (ii) the ability of the Borrower and the Guarantors
collectively to perform their obligations under the Loan
Documents, or (iii) the validity or enforceability of any of the
Loan Documents or the rights or remedies of the Agent or the
Lenders thereunder.
"Material Domestic Subsidiary" means any Domestic Subsidiary
(other than a Guarantor) having assets (other than non-U.S.
domiciled assets and Equity Interests in Foreign Subsidiaries)
with a book value of $10,000,000 or more or any group of Domestic
Subsidiaries (other than Guarantors) on a combined basis having
such assets with a book value of $15,000,000 or more.
"Material Indebtedness" is defined in Section 7.5.
"Material Subsidiary" means any Subsidiary, or group of
Subsidiaries on a combined basis, that constitutes a Substantial
Portion of the Property of the Borrower and its Subsidiaries.
"Moody's" mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a Plan which is a multiemployer
plan as defined in Section 4001(a)(3) of ERISA and to which the
Borrower or any member of the Controlled Group is obligated to
make contributions.
"Net Cash Proceeds" means, with respect to any Asset Sale or
Financing by any Person, (a) cash received by such Person or any
Subsidiary of such Person from such Asset Sale (including cash
received as consideration for the assumption or incurrence of
liabilities incurred in connection with or in anticipation of
such Asset Sale) or Financing, after (i) provision for all income
or other taxes measured by or resulting from such Asset Sale or
Financing, (ii) payment of all brokerage commissions and other
fees and expenses related to such Asset Sale or Financing, (iii)
repayment of Indebtedness secured by a Lien on any asset disposed
of in such Asset Sale, (iv) deduction of appropriate amounts to
be provided by such Person or a Subsidiary of such Person as a
reserve, in accordance with Agreement Accounting Principles,
against any liabilities associated with the assets sold or
disposed of in such Asset Sale and retained by such Person or a
Subsidiary of such Person after such Asset Sale, including,
without limitation, liabilities related to environmental matters,
14
or against any indemnification obligations associated with the
assets sold or disposed of in such Asset Sale, and (v) in the
case of a sale of a facility, the costs of relocating the
operations of the Borrower and its Subsidiaries from that
facility; and (b) cash payments in respect of any Indebtedness,
Equity Interest or other consideration received by such Person or
any Subsidiary of such Person from such Asset Sale upon receipt
of such cash payments by such Person or such Subsidiary.
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note issued at the request of a
Lender pursuant to Section 2.13 in the form of Exhibit C-1 or C-
2.
"Obligations" means all unpaid principal of and accrued and
unpaid interest on the Loans, all unpaid Reimbursement
Obligations, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of the Borrower
to the Lenders or to any Lender, the Issuing Lender, the Agent or
any indemnified party arising under the Loan Documents.
"Off-Balance Sheet Liability" of a Person means (i) any
repurchase obligation or recourse liability of such Person with
respect to the collectibility of accounts or notes receivable
sold by such Person, (ii) any liability under any Sale and
Leaseback Transaction which is not a Capitalized Lease, (iii) any
liability under any so-called "synthetic lease" transaction
entered into by such Person, or (iv) any obligation arising with
respect to any other transaction which is the functional
equivalent of borrowing but which does not constitute a liability
on the balance sheet of such Person, but excluding from this
clause (iv) any lease of Property (other than a Capitalized
Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at
the option of the lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June,
September and December.
"PBGC" means the Pension Benefit Guaranty Corporation, or
any successor thereto.
"Permitted Acquisition" means any Acquisition made by the
Borrower or any of its Subsidiaries, provided that (i) as of the
date of the consummation of such Acquisition, no Default or
Unmatured Default shall have occurred and be continuing or would
result from such Acquisition, and the representation and warranty
contained in Section 5.11 shall be true both before and after
giving effect to such Acquisition, (ii) such Acquisition is
consummated on a non-hostile basis pursuant to a negotiated
acquisition agreement approved by the board of directors or other
applicable governing body of the seller or entity to be acquired,
and no material challenge to such Acquisition (excluding the
exercise of appraisal rights) shall be pending or threatened by
any shareholder or director of the seller or entity to be
acquired, (iii) the business to be acquired in such Acquisition
15
is reasonably related to one or more of the fields of enterprise
in which the Borrower and its Subsidiaries are engaged on the
Closing Date (after giving effect to the PSD Acquisition), and
(iv) as of the date of the consummation of such Acquisition, all
material approvals required in connection therewith shall have
been obtained.
"Permitted Subordinated Indebtedness" means Indebtedness of
the Borrower, the payment of which is subordinated to payment of
the Secured Obligations and all of the terms and conditions of
which are reasonably acceptable to the Agent and the Required
Lenders, issued in an aggregate principal amount not to exceed
$125,000,000, the proceeds of which are used, in whole or in
part, to consummate the PSD Acquisition or to refinance the
Bridge Loan in its entirety; provided that terms and conditions
substantially similar to those contained in the Description of
Notes shall be deemed to be reasonably acceptable.
"Person" means any natural person, corporation, firm, joint
venture, partnership, limited liability company, association,
enterprise, trust or other entity or organization, or any
government or political subdivision or any agency, department or
instrumentality thereof.
"Plan" means an employee pension benefit plan which is
covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code as to which the Borrower
or any member of the Controlled Group could reasonably be
expected to incur any liability.
"Pricing Schedule" means the Schedule attached hereto
identified as such.
"Pro Rata Share" means, with respect to any Lender at any
time, the fraction (expressed as a percentage) obtained by
dividing (a) such Lender's Commitment at such time by (b) the
Aggregate Commitment at such time; provided, however, that if the
Commitments shall have been terminated at such time, then "Pro
Rata Share" shall mean the fraction (expressed as a percentage)
obtained by dividing (x) the aggregate principal amount of such
Lender's Revolving Loans, participations in L/C Obligations and
Term Loans outstanding at such time by (y) the aggregate
principal amount of all of the Revolving Loans, L/C Obligations
and Term Loans outstanding at such time.
"Property" of a Person means any and all property, whether
real, personal, tangible, intangible, or mixed, of such Person,
or other assets owned, leased or operated by such Person,
including, without limitation, Equity Interests of Subsidiaries
of such Person.
"PSD Acquisition" means the acquisition by the Borrower of
the outstanding capital stock of Pasteur Sanofi Diagnostics S.A.
and certain related assets (the "Acquired Business") pursuant to
the PSD Purchase Agreement.
"PSD Purchase Agreement" means the Purchase Agreement dated
July 3, 1999 among the Borrower, Sanofi Synthelabo and Institut
Pasteur.
"Purchasers" is defined in Section 12.3.1.
16
"Rate Management Transaction" means any transaction
(including an agreement with respect thereto) now existing or
hereafter entered into which is a rate swap, basis swap, forward
rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, forward
transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction
(including any option with respect to any of these transactions)
or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity
prices or other financial measures.
"Rate Management Obligations" of a Person means any and all
obligations of such Person, whether absolute or contingent and
howsoever and whensoever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all Rate Management
Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management
Transactions.
"Regulation D" means Regulation D of the Board of Governors
of the Federal Reserve System as from time to time in effect and
any successor thereto or other regulation or official
interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve
System.
"Regulation U" means Regulation U of the Board of Governors
of the Federal Reserve System as from time to time in effect and
any successor or other regulation or official interpretation of
said Board of Governors relating to the extension of credit by
banks for the purpose of purchasing or carrying margin stocks
applicable to member banks of the Federal Reserve System.
"Reimbursement Obligation" is defined in Section 2.4.3.
"Reportable Event" means a reportable event as defined in
Section 4043 of ERISA and the regulations issued under such
section, with respect to a Plan, excluding, however, such events
as to which the PBGC has by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event, provided, however, that a failure
to meet the minimum funding standard of Section 412 of the Code
and of Section 302 of ERISA shall be a Reportable Event
regardless of the issuance of any such waiver of the notice
requirement in accordance with either Section 4043(a) of ERISA or
Section 412(d) of the Code.
"Required Lenders" means Lenders in the aggregate having
more than 50% of the sum of the Aggregate Commitment and the
aggregate unpaid principal amount of the Term Loans or, if the
Aggregate Commitment has been terminated, Lenders in the
aggregate holding more than 50% of the aggregate unpaid principal
amount of the outstanding Advances and L/C Obligations.
"Reserve Requirement" means, with respect to an Interest
Period, the maximum aggregate reserve requirement (including all
basic, supplemental, marginal and other reserves), if any, which
is imposed under Regulation D on Eurocurrency liabilities.
17
"Revolving Advance" means an Advance consisting of Revolving
Loans.
"Revolving Loan" means, with respect to any Lender, a loan
made by such Lender pursuant to Section 2.1.2 (or any conversion
or continuation thereof).
"S&P" means Standard and Poor's Ratings Services, a division
of The McGraw Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other
transfer of Property by any Person with the intent to lease such
Property as lessee.
"Schedule" refers to a specific schedule to this Agreement,
unless another document is specifically referenced.
"Xxxxxxxx Group" means Xxxxx and Xxxxx Xxxxxxxx, their
family and heirs, and corporations, partnerships and limited
liability companies 100% owned by any of the foregoing and trusts
for the benefit of any of the foregoing.
"Section" means a numbered section of this Agreement, unless
another document is specifically referenced.
"Secured Obligations" means, collectively, (i) the
Obligations and (ii) all Rate Management Obligations owing to any
Lender or any affiliate of any Lender.
"Single Employer Plan" means a Plan (other than a
Multiemployer Plan) maintained by the Borrower or any member of
the Controlled Group for employees of the Borrower or any member
of the Controlled Group.
"Subordinated Indebtedness" means the Bridge Loan and the
Permitted Subordinated Indebtedness.
"Subsidiary" of a Person means (i) any corporation more than
50% of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or
indirectly, by such Person or by one or more of its Subsidiaries
or by such Person and one or more of its Subsidiaries, or (ii)
any partnership, limited liability company, association, joint
venture or similar business organization more than 50% of the
ownership interests having ordinary voting power of which shall
at the time be so owned or controlled. Unless otherwise
expressly provided, all references herein to a "Subsidiary" shall
mean a Subsidiary of the Borrower.
"Substantial Portion" means, with respect to the Property of
the Borrower and its Subsidiaries, Property which (i) represents
more than 10% of the consolidated assets of the Borrower and its
Subsidiaries as shown in the consolidated financial statements of
the Borrower and its Subsidiaries as at the end of the four
fiscal quarter period ending immediately prior to the fiscal
18
quarter in which such determination is made, or (ii) is
responsible for more than 10% of the consolidated net income of
the Borrower and its Subsidiaries as reflected in the financial
statements referred to in clause (i) above.
"Synthetic Lease" is defined in Section 6.11(viii).
"Taxes" means any and all present or future taxes, duties,
levies, imposts, deductions, charges or withholdings, and any and
all liabilities with respect to the foregoing, but excluding
Excluded Taxes.
"Term Loan" means, with respect to any Lender, the loan made
by such Lender pursuant to Section 2.1.1 (or any conversion or
continuation thereof).
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a
Floating Rate Advance or a Eurocurrency Advance.
"Unfunded Liabilities" means the amount (if any) by which
the present value of all vested and unvested accrued benefits
under all Single Employer Plans exceeds the fair market value of
all such Plan assets allocable to such benefits, all determined
as of the then most recent valuation date for such Plans using
PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse
of time or the giving of notice, or both, would constitute a
Default.
"Voting Equity Interests" means Equity Interests which at
the time are entitled to vote in the election of, as applicable,
directors, members or partners generally.
"Wholly-Owned Subsidiary" of a Person means (i) any
Subsidiary all of the outstanding voting securities of which
shall at the time be owned or controlled, directly or indirectly,
by such Person or one or more Wholly-Owned Subsidiaries of such
Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited
liability company, association, joint venture or similar business
organization 100% of the ownership interests having ordinary
voting power of which shall at the time be so owned or
controlled.
"Working Capital" means, as at any date of determination,
the excess, if any, of (i) the Borrower's consolidated current
assets, except cash and Cash Equivalent Investments, over
(ii) the Borrower's consolidated current liabilities, except
current maturities of long-term debt and Revolving Loans as of
such date and all accrued interest as of such date.
"Year 2000 Issues" means anticipated costs, problems and
uncertainties associated with the inability of certain computer
applications (whether of the Borrower, any of its Subsidiaries,
19
or any of the Borrower's or any of its Subsidiaries' material
customers, suppliers or vendors) to effectively handle data
including dates on and after January 1, 2000, as such inability
affects the business, operations and financial condition of the
Borrower and its Subsidiaries.
"Year 2000 Program" is defined in Section 5.19.
The foregoing definitions shall be equally applicable to
both the singular and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1. The Loans.
2.1.1. Term Loans. Each Lender severally agrees, on the
terms and conditions set forth in this Agreement, to make a Term
Loan in Dollars to the Borrower on the Closing Date in an amount equal
to such Lender's Pro Rata Share of $100,000,000.
2.1.2. Revolving Loans. (a) Commitment. From and including
the date of this Agreement and prior to the Facility Termination Date,
each Lender severally agrees, on the terms and conditions set forth in
this Agreement, to make Revolving Loans in Agreed Currencies to the
Borrower from time to time in Dollar Amounts not to exceed in the
aggregate at any one time outstanding the Dollar Amount of its
Commitment minus its Pro Rata Share of the Dollar Amount of L/C
Obligations outstanding at such time, provided that (i) all Floating
Rate Loans shall be made in Dollars and (ii) upon giving effect to
each Revolving Advance, the aggregate outstanding principal Dollar
Amount of all Advances and L/C Obligations in Agreed Currencies other
than Dollars shall not exceed $100,000,000. Subject to the terms of
this Agreement, the Borrower may borrow, repay and reborrow at any
time prior to the Facility Termination Date. The Commitments to lend
hereunder shall expire on the Facility Termination Date.
(b)Determination of Dollar Amounts; Required Payments.
(i) The Agent will determine the Dollar Amount of:
(i) each Revolving Advance as of the date two Business Days
prior to the Borrowing Date or, if applicable, date of
conversion/continuation of such Revolving Advance, and
(ii) all outstanding Revolving Advances and L/C Obligations
on and as of the last Business Day of each quarter and on any other
Business Day elected by the Agent in its reasonable discretion or upon
instruction by the Required Lenders.
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Each day upon or as of which the Agent determines Dollar Amounts
as described in the preceding clauses (i) and (ii) is herein
described as a "Computation Date" with respect to Revolving
Advances and L/C Obligations for which a Dollar Amount is
determined on or as of such day. If at any time the Dollar
Amount of the sum of the aggregate principal amount of all
outstanding Revolving Advances plus the Dollar Amount of
outstanding L/C Obligations (calculated, with respect to those
Revolving Advances and L/C Obligations denominated in Agreed
Currencies other than Dollars, as of the most recent Computation
Date with respect thereto) exceeds 105% of the Aggregate
Commitment, the Borrower shall immediately repay Revolving
Advances in an aggregate principal amount such that after giving
effect thereto the Dollar Amount of the sum of the aggregate
principal amount of all outstanding Revolving Advances plus the
Dollar Amount of outstanding L/C Obligations (calculated, with
respect to those Revolving Advances and L/C Obligations
denominated in Agreed Currencies other than Dollars, as of the
most recent Computation Date with respect thereto) does not
exceed the Aggregate Commitment.
2.2. Repayment.
2.2.1. Term Loans. The Term Loans shall be repaid in
seventeen (17) quarterly installments of principal payable on each
Payment Date, commencing on September 30, 2000, in the aggregate
principal amounts set forth below:
Payment Date Installment Agreement
September 30, 2000 $ 5,000,000
December 31, 2000 $ 5,000,000
March 31, 2001 $ 3,750,000
June 30, 2001 $ 3,750,000
September 30, 2001 $ 3,750,000
December 31, 2001 $ 3,750,000
March 31, 2002 $ 5,000,000
June 30, 2002 $ 5,000,000
September 30, 2002 $ 5,000,000
December 31, 2002 $ 5,000,000
March 31, 2003 $ 6,250,000
June 30, 2003 $ 6,250,000
September 30, 2003 $ 6,250,000
December 31, 2003 $ 6,250,000
March 31, 2004 $10,000,000
June 30, 2004 $10,000,000
September 30, 2004 $10,000,000
21
provided, however, that (i) the final installment on September
30, 2004 shall be in the amount of the then unpaid principal
balance of the Term Loans and (ii) the entire unpaid principal
balance of the Term Loans shall be due and payable on the
Facility Termination Date. Once repaid, the Term Loans may not
be reborrowed.
2.2.2. Revolving Loans. All outstanding Revolving Loans
and all other unpaid Obligations shall be paid in full by the Borrower on the
Facility Termination Date.
2.3. Ratable Loans; Types of Advances. Each Advance hereunder
shall consist of Loans made from the several Lenders ratably in
accordance with their respective Pro Rata Shares. The Advances
may be Floating Rate Advances or Eurocurrency Advances, or a
combination thereof, selected by the Borrower in accordance with
Sections 2.8 and 2.9. After giving effect to any Advance, unless
the Agent shall consent, there shall not be more than ten (10)
different Interest Periods in effect with respect to all Advances
then outstanding.
2.4.Letters of Credit.
2.4.1. Letter of Credit Facility. Upon receipt of duly
executed applications therefor, and such other documents,
instructions and agreements as the Issuing Lender may reasonably
require, and subject to the provisions of Section 2.1.2 and
Article IV, the Issuing Lender shall issue Letters of Credit
denominated in any Agreed Currency for the account of the
Borrower (or for the account of the Borrower and any of its
Subsidiaries, provided that the Borrower's obligations hereunder
with respect thereto shall be several and not joint), on terms as
are satisfactory to the Issuing Lender; provided, however, that
no Letter of Credit will be issued for the account of the
Borrower by the Issuing Lender if on the date of issuance, before
or after taking such Letter of Credit into account, (i) the
aggregate outstanding Dollar Amount of all of the Revolving
Advances and L/C Obligations exceeds or would exceed the
Aggregate Commitment, (ii) the aggregate outstanding Dollar
Amount of all Advances and L/C Obligations in Agreed Currencies
other than Dollars would exceed $100,000,000, or (iii) the
aggregate outstanding Dollar Amount of the L/C Obligations
exceeds or would exceed $10,000,000; and provided, further, that
no Letter of Credit shall be issued which has an expiration date
later than the earlier of (i) one year from the date of issuance
thereof and (ii) the date which is five (5) Business Days
immediately preceding the Facility Termination Date. Each Letter
of Credit may, upon the request of the Borrower, include a
provision whereby such Letter of Credit shall be renewed
automatically for additional consecutive periods of 12 months or
less (but not beyond the date that is five Business Days prior to
the Facility Termination Date) unless the Issuing Lender notifies
the beneficiary thereof at least 30 days prior to the then-
applicable expiry date that such Letter of Credit will not be
renewed.
2.4.2. Letter of Credit Participation. Immediately upon
the issuance of each Letter of Credit by the Issuing Lender hereunder,
each Lender shall be deemed to have automatically, irrevocably and
unconditionally purchased and received from the Issuing Lender an
undivided interest and participation in and to such Letter of Credit,
the obligations of the Borrower in respect thereof, and the liability
of the Issuing Lender thereunder (collectively, an "L/C Interest")
22
in an amount equal to the amount available for drawing under such Letter
of Credit multiplied by such Lender's Pro Rata Share.
The Issuing Lender will notify the Agent promptly upon
presentation to it of an L/C Draft or upon any other draw under a
Letter of Credit, and the Agent will promptly notify each Lender.
On or at any time after the Business Day on which the Issuing
Lender makes payment of each such L/C Draft or any other draw on
a Letter of Credit, on demand of the Issuing Lender received by
each Lender not later than 1:00 p.m. (Chicago time) on such
Business Day, each Lender shall make payment on such Business Day
to the Agent for the account of the Issuing Lender, in
immediately available funds in the Agreed Currency of such Letter
of Credit, in an amount equal to such Lender's Pro Rata Share of
the amount of the Borrower's unpaid Reimbursement Obligation with
respect thereto.
Upon the Agent's receipt of funds as a result of the
Issuing Lender's payment on an L/C Draft or any other draw on a
Letter of Credit issued by the Issuing Lender, the Agent shall
promptly pay such funds to the Issuing Lender. The obligation of
each Lender to pay the Agent for the account of the Issuing
Lender under this Section 2.4.2 shall be unconditional,
continuing, irrevocable and absolute. In the event that any
Lender fails to make payment to the Agent of any amount due under
this Section 2.4.2, the Agent shall be entitled to receive,
retain and apply against such obligation the principal and
interest otherwise payable to such Lender hereunder until the
Agent on behalf of the Issuing Lender receives such payment from
such Lender or such obligation is otherwise fully satisfied;
provided, however, that nothing contained in this sentence shall
relieve such Lender of its obligation to reimburse the Agent for
such amount in accordance with this Section 2.4.2.
2.4.3. Reimbursement Obligation. The Borrower agrees
unconditionally, irrevocably and absolutely upon receipt of
notice from the Agent or the Issuing Lender to pay to the Agent,
for the account of the Issuing Lender or the account of the
Lenders, as the case may be, the amount of each advance which may
be drawn under or pursuant to a Letter of Credit issued for its
account or an L/C Draft related thereto (such obligation of the
Borrower to reimburse the Issuing Lender or the Agent for an
advance made under a Letter of Credit or L/C Draft being
hereinafter referred to as a "Reimbursement Obligation" with
respect to such Letter of Credit or L/C Draft), each such payment
to be made by the Borrower to the Agent no later than 2:00 p.m.
(Chicago time) on the third Business Day after the Business Day
on which the Issuing Lender makes payment of each such L/C Draft.
The Issuing Lender may direct the Agent to make such demand with
respect to Letters of Credit issued by the Issuing Lender. If,
for any reason, the Borrower fails to repay a Reimbursement
Obligation on the day such Reimbursement Obligation arises, then
such Reimbursement Obligation shall bear interest from and after
such day, until paid in full, at the interest rate applicable to
a Floating Rate Advance. Such interest shall be for the account
of the Issuing Lender until the Lenders make payment for their
respective participation interests in such Reimbursement
Obligation in accordance with Section 2.4.2.
2.4.4. Cash Collateral. Notwithstanding anything to the
contrary herein or in any application for a Letter of Credit, after the
23
occurrence and during the continuance of a Default, the Borrower
shall, upon the Agent's demand (and, in the case of any Default
described in Section 7.6 or 7.7, immediately, without any demand
or the taking of any other action by the Agent, the Issuing Bank
or any Lender), deliver to the Agent for the benefit of the
Lenders, cash, or other collateral of a type satisfactory to the
Required Lenders, having a value, as determined by such Required
Lenders, equal to the aggregate outstanding L/C Obligations of
the Borrower. Any such collateral shall be held by the Agent in
a separate account appropriately designated as a cash collateral
account in relation to this Agreement and the Letters of Credit
and retained by the Agent for the benefit of the Lenders as
collateral security for the Borrower's obligations in respect of
this Agreement and each of the Letters of Credit and L/C Drafts.
Such amounts shall be applied to reimburse the Agent or the
Issuing Lender, as applicable, for drawings or payments under or
pursuant to Letters of Credit or L/C Drafts, or if no such
reimbursement is required, to payment of such of the other
Obligations as the Agent shall determine. If no Default shall be
continuing, amounts remaining in any cash collateral account
established pursuant to this Section 2.4.4. which are not to be
applied to reimburse the Issuing Lender for amounts actually paid
or to be paid by the Issuing Lender in respect of a Letter of
Credit or L/C Draft shall be returned to the Borrower (after
deduction of the Agent's expenses incurred in connection with
such cash collateral account).
2.4.5. Letter of Credit Fees. The Borrower agrees to pay
in Dollars (i) quarterly, in arrears, on each Payment Date to the Agent,
for the ratable benefit of the Lenders, a letter of credit fee in the
amount of the Applicable Fee Rate per annum on the aggregate average
daily outstanding Dollar Amount available for drawing under all of the
Letters of Credit and (ii) to the Agent for the benefit of the Issuing
Lender, a fronting fee of 1/4 of one percent (0.25%) of the initial
outstanding Dollar Amount available for drawing under each Letter of
Credit (other than the Existing Letters of Credit), payable on the date
of issuance of such Letter of Credit, plus all customary fees and other
issuance, amendment, document examination, negotiation and presentment
expenses and related charges in connection with the issuance, amendment,
presentation of L/C Drafts, and the like customarily charged by the
Issuing Lender with respect to standby and commercial Letters of Credit,
including, without limitation, standard commissions with respect to
commercial Letters of Credit, payable at the time of invoice of such
amounts.
2.4.6. Indemnification; Exoneration. (a) In addition to
amounts payable as elsewhere provided in this Agreement, the Borrower
agrees to protect, indemnify, pay and save harmless the Agent, the
Issuing Lender and each Lender from and against any and all liabilities
and costs which the Agent, the Issuing Lender or any Lender may incur
or be subject to as a consequence, direct or indirect, of (i) the
issuance of any Letter of Credit other than, in the case of the
Issuing Lender, as a result of its gross negligence or willful
misconduct, as determined by the final judgment of a court of
competent jurisdiction, or (ii) the failure of the Issuing Lender
of a Letter of Credit to honor a drawing under such Letter of
Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto Governmental
Authority (all such acts or omissions herein called "Governmental Acts").
(b) As among the Borrower, the Lenders, the Issuing
Lender and the Agent, the Borrower assumes all risks of the acts
24
and omissions of, or misuse of such Letter of Credit by, the
beneficiary of any Letter of Credit. In furtherance and not in
limitation of the foregoing, subject to the provisions of the
Letter of Credit applications and Letter of Credit reimbursement
agreements executed by the Borrower at the time of request for
any Letter of Credit, the Issuing Lender of a Letter of Credit,
the Agent and the Lenders shall not be responsible (in the
absence of gross negligence or willful misconduct in connection
therewith, as determined by the final judgment of a court of
competent jurisdiction): (i) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any
document submitted by any party in connection with the
application for and issuance of the Letters of Credit, even if it
should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective
for any reason; (iii) for failure of the beneficiary of a Letter
of Credit to comply duly with conditions required in order to
draw upon such Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any
messages, by mail, cable, telegraph, telex, or other similar form
of teletransmission or otherwise; (v) for errors in
interpretation of technical trade terms; (vi) for any loss or
delay in the transmission or otherwise of any document required
in order to make a drawing under any Letter of Credit or of the
proceeds thereof; (vii) for the misapplication by the beneficiary
of a Letter of Credit of the proceeds of any drawing under such
Letter of Credit; and (viii) for any consequences arising from
causes beyond the control of the Agent, the Issuing Lender and
the Lenders, including, without limitation, any Governmental
Acts. None of the above shall affect, impair, or prevent the
vesting of any of the Issuing Lender's rights or powers under
this Section 2.4.6.
(c) In furtherance and extension and not in limitation
of the specific provisions hereinabove set forth, any action
taken or omitted by the Issuing Lender under or in connection
with Letters of Credit issued on behalf of the Borrower or any
related certificates shall not, in the absence of gross
negligence or willful misconduct, as determined by the final
judgment of a court of competent jurisdiction, put the Issuing
Lender, the Agent or any Lender under any resulting liability to
the Borrower or relieve the Borrower of any of its obligations
hereunder to any such Person.
(d) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in this Section 2.4.6.
shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the
termination of this Agreement.
2.4.7. Transitional Letter of Credit Provisions. From
and after the Closing Date, the letters of credit described on
Schedule 2.4 (the "Existing Letters of Credit") shall be deemed
to constitute Letters of Credit issued pursuant to Section 2.4.1.
in which the Lenders participate pursuant to Section 2.4.2. Fees
shall accrue in respect of the Existing Letters of Credit as
provided in Section 2.4.5. beginning as of the Closing Date.
2.5. Commitment Fee; Reductions in Aggregate Commitment.
The Borrower agrees to pay to the Agent for the account of
each Lender a commitment fee at a per annum rate equal to the
25
Applicable Fee Rate on the daily unused portion of such Lender's
Commitment from the date hereof to and including the Facility
Termination Date, payable on each Payment Date hereafter and on
the Facility Termination Date. The Borrower may permanently
reduce the Aggregate Commitment in whole, or in part ratably
among the Lenders in the minimum amount of $5,000,000 (and in
integral multiples of $1,000,000 in excess thereof), upon at
least three Business Days' written notice to the Agent, which
notice shall specify the amount of any such reduction, provided,
however, that the amount of the Aggregate Commitment may not be
reduced below the aggregate principal Dollar Amount of the
outstanding Revolving Loans and L/C Obligations. All accrued
commitment fees shall be payable on the effective date of any
termination of the obligations of the Lenders to make Revolving
Loans hereunder.
2.6. Minimum Amount of Each Advance. Each Eurocurrency
Advance in Dollars shall be in the minimum amount of $5,000,000 (and
in multiples of $1,000,000 if in excess thereof), each Eurocurrency
Advance in Euro shall be in the minimum amount of EUR 5,000,000
(and in multiples of EUR 1,000,000 if in excess thereof), and
each Floating Rate Advance shall be in the minimum amount of
$250,000 (and in multiples of $250,000 if in excess thereof),
provided, however, that any Floating Rate Advance may be in the
amount of the unused Aggregate Commitment.
2.7. Prepayments.
2.7.1. Optional Principal Payments. The Borrower may from
time to time pay, without penalty or premium, all outstanding Floating
Rate Advances, or, in a minimum aggregate amount of $250,000 or any
integral multiple of $250,000 in excess thereof, any portion of the
outstanding Floating Rate Advances upon notice to the Agent not later
than 12:00 noon (Chicago time) on the date of payment (which shall be
a Business Day). The Borrower may from time to time pay, subject to the
payment of any funding indemnification amounts required by Section
3.4 but without penalty or premium, all outstanding Eurocurrency
Advances, or, in a minimum aggregate amount of $5,000,000 or any integral
multiple of $1,000,000 in excess thereof, any portion of the
outstanding Eurocurrency Advances in Dollars upon three Business Days'
prior notice to the Agent, and in a minimum aggregate amount of
EUR 5,000,000 or any integral multiple of EUR 1,000,000 in excess
hereof, any portion of the outstanding Eurocurrency Advances in Euro
upon four Business Days' prior notice to the Agent. Principal payments
applied to the Term Loans shall be applied to the principal installments
payable under Section 2.2.1 in the order specified by the Borrower, so
long as no Default or Unmatured Default exists, and otherwise pro
rata to all remaining unpaid principal installments.
2.7.2. Mandatory Prepayments of the Term Loans.
(a) In the event of any Asset Sale by the Borrower or
any Subsidiary of the Borrower, other than those Asset Sales
permitted pursuant to Section 6.13(i) through (iv) and except as
provided in the following sentence, upon the Borrower's or any of
its Subsidiaries' (i) receipt of any Net Cash Proceeds from any
such Asset Sale, or (ii) conversion to cash or Cash Equivalent
Investments of non-cash proceeds received from any Asset Sale,
26
which when aggregated with the Net Cash Proceeds from other Asset
Sales consummated during the Borrower's then current fiscal year
and other cash and Cash Equivalent Investments converted during
such fiscal year from non-cash proceeds from any other Asset
Sales exceed $5,000,000, the Borrower shall make a mandatory
prepayment of the Term Loans in an amount equal to one hundred
percent (100%) of such Net Cash Proceeds or such proceeds
converted from non-cash to cash or Cash Equivalent Investments.
Notwithstanding the foregoing, so long as no Default or Unmatured
Default exists, such percentage shall be reduced to the
Applicable Percentage, provided that the amount that would
otherwise be required as a mandatory prepayment in accordance
with the first sentence of this Section 2.7.2(a) (the "Available
Net Cash Proceeds") shall be invested in assets or property
(other than Cash Equivalent Investments) in the Borrower's or any
Subsidiary's business within twelve months after such Asset Sale;
such investment shall be deemed effected to the extent that such
property or assets are acquired or constructed, commitments for
such acquisition or construction are entered into and/or such
property or assets are identified and a construction project
related thereto has been commenced within such twelve-month
period. To the extent that Available Net Cash Proceeds are not
so invested within twelve months after the applicable Asset Sale,
such uninvested amount shall thereupon be paid to the Agent as a
mandatory prepayment in accordance with this Section 2.7.2(a).
So long as no Default or Unmatured Default exists, Net Cash
Proceeds of Asset Sales with respect to which the Borrower shall
have given the Agent written notice prior to such Asset Sale of
its intention to replace the assets within twelve months
following such Asset Sale shall not be subject to the provisions
of the first and second sentences of this Section 2.7.2(a) unless
and to the extent that such applicable period shall have expired
without such replacement having been made.
(b) In the event of any Financing by the Borrower or
any Subsidiary of the Borrower, upon the Borrower's or any of its
Subsidiaries' receipt of any Net Cash Proceeds from such
Financing, the Borrower shall make a mandatory prepayment of the
Term Loans in an amount equal to one hundred percent (100%) of
such Net Cash Proceeds.
(c) Simultaneously with the delivery of the annual
audited financial statements required to be delivered pursuant to
Section 6.1(i) for each fiscal year, the Borrower shall calculate
Excess Cash Flow for such fiscal year and shall make a mandatory
prepayment of the Term Loans, payable not later than the earlier
of ten (10) days after such financial statements and calculation
are delivered or one hundred ten (110) days after the end of such
fiscal year, in an amount equal to the Applicable Percentage of
such Excess Cash Flow.
(d) Each mandatory prepayment required by clauses (a),
(b) and (c) of this Section 2.7.2 shall be applied to the
principal installments payable under Section 2.2.1 in the order
of maturity to the extent of one quarterly installment and then
pro rata to all remaining unpaid principal installments.
(e) Nothing in this Section 2.7.2 shall be construed
to constitute the Lenders' consent to any transaction referred to
in clauses (a) and (b) above which is otherwise prohibited by the
terms of this Agreement.
27
2.8. Method of Selecting Types and Interest Periods for New
Advances. The Borrower shall select the Type of Advance and, in
the case of each Eurocurrency Advance, the Interest Period and Agreed
Currency applicable thereto from time to time. The Borrower shall give
the Agent irrevocable notice (a "Borrowing Notice") not later than
12:00 noon (Chicago time) on the Borrowing Date of each Floating
Rate Advance, at least three Business Days before the Borrowing Date
for each Eurocurrency Advance in Dollars and at least four Business Days
before the Borrowing Date for each Eurocurrency Advance in Euro,
specifying:
(i) the Borrowing Date, which shall be a Business Day, of
such Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurocurrency Advance, the Interest
Period and Agreed Currency applicable thereto.
On each Borrowing Date, each Lender shall make available its Loan
or Loans, (i) if such Loan is denominated in Dollars, not later
than 2:00 p.m., Chicago time, in Federal or other funds
immediately available to the Agent, in Chicago, Illinois at its
address specified in or pursuant to Article XIII and, (ii) if
such Loan is denominated in an Agreed Currency other than
Dollars, not later than 2:00 p.m., local time, in the city of the
Agent's Eurocurrency Payment Office for such currency, in such
funds as may then be customary for the settlement of
international transactions in such currency in the city of and at
the address of the Agent's Eurocurrency Payment Office for such
currency. Unless the Agent determines that any applicable
condition specified in Article IV has not been satisfied, the
Agent will make the funds so received from the Lenders available
to the Borrower at the Agent's aforesaid address.
2.9. Conversion and Continuation of Outstanding Advances.
Floating Rate Advances shall continue as Floating Rate
Advances unless and until such Floating Rate Advances are
converted into Eurocurrency Advances pursuant to this Section 2.9
or are repaid in accordance with Section 2.7. Each Eurocurrency
Advance shall continue as a Eurocurrency Advance until the end of
the then applicable Interest Period therefor, at which time:
(i) each such Eurocurrency Advance denominated in Dollars
shall be automatically converted into a Floating Rate
Advance unless (x) such Eurocurrency Advance is or was
repaid in accordance with Section 2.7 or (y) the
Borrower shall have given the Agent a
Conversion/Continuation Notice (as defined below)
requesting that, at the end of such Interest Period,
such Eurocurrency Advance either continue as a
Eurocurrency Advance for the same or another Interest
Period or be converted into a Floating Rate Advance;
and
(ii) each such Eurocurrency Advance denominated in an Agreed
28
Currency other than Dollars shall automatically
continue as a Eurocurrency Advance in the same Agreed
Currency with an Interest Period of one month unless
(x) such Eurocurrency Advance is or was repaid in
accordance with Section 2.7 or (y) the Borrower shall
have given the Agent a Conversion/Continuation Notice
(as defined below) requesting that, at the end of such
Interest Period, such Eurocurrency Advance continue as
a Eurocurrency Advance for the same or another Interest
Period.
Subject to the terms of Section 2.6, the Borrower may elect from
time to time to convert all or any part of an Advance of any Type
into any other Type or Types of Advances denominated in the same
Agreed Currency; provided that any conversion of any Eurocurrency
Advance shall be made on, and only on, the last day of the
Interest Period applicable thereto. The Borrower shall give the
Agent irrevocable notice (a "Conversion/Continuation Notice") of
each conversion of an Advance or continuation of a Eurocurrency
Advance not later than 12:00 noon (Chicago time) at least one
Business Day, in the case of a conversion into a Floating Rate
Advance, three Business Days, in the case of a conversion into or
continuation of a Eurocurrency Advance denominated in Dollars, or
four Business Days, in the case of a conversion into or
continuation of a Eurocurrency Advance denominated in an Agreed
Currency other than Dollars, prior to the date of the requested
conversion or continuation, specifying:
(i) the requested date, which shall be a Business Day, of
such conversion or continuation, and
(ii) the Agreed Currency, amount and Type(s) of Advance(s)
into which such Advance is to be converted or continued
and, in the case of a conversion into or continuation
of a Eurocurrency Advance, the duration of the Interest
Period applicable thereto.
2.10. Changes in Interest Rate, etc. Each Floating Rate
Advance shall bear interest on the outstanding principal amount
thereof, for each day from and including the date such Advance is
made or is automatically converted from a Eurocurrency Advance
into a Floating Rate Advance pursuant to Section 2.9, to but
excluding the date it is paid or is converted into a Eurocurrency
Advance pursuant to Section 2.9 hereof, at a rate per annum equal
to the Floating Rate for such day. Changes in the rate of
interest on that portion of any Advance maintained as a Floating
Rate Advance will take effect simultaneously with each change in
the Alternate Base Rate. Each Eurocurrency Advance shall bear
interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto
to (but not including) the last day of such Interest Period at
the interest rate determined by the Agent as applicable to such
Eurocurrency Advance based upon the Borrower's selections under
Sections 2.8 and 2.9 and otherwise in accordance with the terms
hereof. No Interest Period may end after the Facility
Termination Date. The Borrower shall select Interest Periods so
that it is not necessary to repay any portion of a Eurocurrency
Advance prior to the last day of the applicable Interest Period
in order to make a repayment required pursuant to Section 2.2.1.
2.11. Rates Applicable After Default. Notwithstanding
anything to the contrary contained in Section 2.8 or 2.9, during
the continuance of a Default the Required Lenders may, at their
29
option, by notice to the Borrower, declare that no Advance may be
made as, converted into or continued as a Eurocurrency Advance in
Dollars. During the continuance of a Default the Required Lenders
may, at their option, by notice to the Borrower (which notice may be
revoked at the option of the Required Lenders notwithstanding any
provision of Section 8.2 requiring unanimous consent of the
Lenders to changes in interest rates), declare that (i) each
Eurocurrency Advance shall bear interest for the remainder of the
applicable Interest Period at the rate otherwise applicable to
such Interest Period plus 2% per annum, (ii) each Floating Rate
Advance shall bear interest at a rate per annum equal to the
Floating Rate in effect from time to time plus 2% per annum and
(iii) the letter of credit fee payable pursuant to Section 2.4.5
shall be increased by 2% per annum above the fee otherwise
applicable, provided that, during the continuance of a Default
under Section 7.6 or 7.7, the interest rates and letter of credit
fee set forth in clauses (i), (ii) and (iii) above shall be
applicable to all Advances and Letters of Credit, respectively,
without any election or action on the part of the Agent or any
Lender.
2.12. Method of Payment. (i) Each Advance shall be repaid
and each payment of interest thereon shall be paid in the currency
in which such Advance was made. All payments of the Obligations
hereunder shall be made, without setoff, deduction, or counterclaim,
in immediately available funds to the Agent at (except as set forth
in the next sentence) the Agent's address specified pursuant to
Article XIII, or at any other Lending Installation of the Agent
specified in writing by the Agent to the Borrower, by 2:00 p.m.
(local time) at the place of payment on the date when due and
shall be applied ratably by the Agent among the Lenders. All
payments to be made by the Borrower hereunder in any currency
other than Dollars shall be made in such currency on the date due
in such funds as may then be customary for the settlement of
international transactions in such currency for the account of
the Agent, at its Eurocurrency Payment Office for such currency
and shall be applied ratably by the Agent among the Lenders.
Each payment delivered to the Agent for the account of any Lender
shall be delivered promptly by the Agent to such Lender in the
same type of funds that the Agent received at, (a) with respect
to Floating Rate Loans and Eurocurrency Loans denominated in
Dollars, its address specified pursuant to Article XIII or at any
Lending Installation specified in a notice received by the Agent
from such Lender and (b) with respect to Eurocurrency Loans
denominated in an Agreed Currency other than Dollars, in the
funds received from the Borrower at the address of the Agent's
Eurocurrency Payment Office for such currency.
(ii) Notwithstanding the foregoing provisions of this
Section, if, after the making of any Advance in any currency
other than Dollars, currency control or exchange regulations are
imposed in the country which issues such currency with the result
that the type of currency in which the Advance was made (the
"Original Currency") no longer exists or the Borrower is not able
to make payment to the Agent for the account of the Lenders in
such Original Currency, then all payments to be made by the
Borrower hereunder in such currency shall instead be made when
due in Dollars in an amount equal to the Dollar Amount (as of the
date of repayment) of such payment due, it being the intention of
the parties hereto that the Borrower take all risks of the
imposition of any such currency control or exchange regulations.
2.13. Noteless Agreement; Evidence of Indebtedness.
(i) Each Lender shall maintain in accordance with its usual
30
practice an account or accounts evidencing the indebtedness of
the Borrower to such Lender resulting from each Loan made by such
Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time
hereunder.
31
(ii) The Agent shall also maintain accounts in which it
will record (a) the amount of each Loan made hereunder, the
Agreed Currency and Type thereof and the Interest Period with
respect thereto, (b) the amount of any principal or interest due
and payable or to become due and payable from the Borrower to
each Lender hereunder and (c) the amount of any sum received by
the Agent hereunder from the Borrower and each Lender's share
thereof.
(iii) The entries maintained in the accounts maintained
pursuant to paragraphs (i) and (ii) above shall be prima facie
evidence of the existence and amounts of the Obligations therein
recorded; provided, however, that the failure of the Agent or any
Lender to maintain such accounts or any error therein shall not
in any manner affect the obligation of the Borrower to repay the
Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by
a promissory note (a "Note"). In such event, the Borrower shall
prepare, execute and deliver to such Lender a Note payable to the
order of such Lender in the form of Exhibit C-1 and/or C-2, as
applicable. Thereafter, the Loans evidenced by such Note and
interest thereon shall at all times (including after any
assignment pursuant to Section 12.3) be represented by one or
more Notes payable to the order of the payee named therein or any
assignee pursuant to Section 12.3, except to the extent that any
such Lender or assignee subsequently returns any such Note for
cancellation and requests that such Loans once again be evidenced
as described in paragraphs (i) and (ii) above.
2.14. Telephonic Notices. The Borrower hereby authorizes
the Lenders and the Agent to extend, convert or continue Advances,
effect selections of Agreed Currencies and Types of Advances and to
transfer funds based on telephonic notices made by any person or
persons the Agent in good faith believes to be acting on behalf of the
Borrower, it being understood that the foregoing authorization is
specifically intended to allow Borrowing Notices and
Conversion/Continuation Notices to be given telephonically. The
Borrower agrees to deliver promptly to the Agent a written
confirmation, if such confirmation is requested by the Agent, of
each telephonic notice signed by an Authorized Officer. If the
written confirmation differs in any material respect from the
action taken by the Agent and the Lenders, the records of the
Agent and the Lenders shall govern absent manifest error.
2.15. Interest Payment Dates; Interest and Fee Basis.
Interest accrued on each Floating Rate Advance shall be payable
on the last day of each month, commencing with the first such
date to occur after the date hereof, on any date on which the
Floating Rate Advance is prepaid, whether due to acceleration or
otherwise, and at maturity. Interest accrued on that portion of
the outstanding principal amount of any Floating Rate Advance
converted into a Eurocurrency Advance on a day other than a
Payment Date shall be payable on the date of conversion.
Interest accrued on each Eurocurrency Advance shall be payable on
the last day of its applicable Interest Period, on any date on
which the Eurocurrency Advance is prepaid, whether by
acceleration or otherwise, and at maturity. Interest accrued on
each Eurocurrency Advance having an Interest Period longer than
three months shall also be payable on the last day of each three-
month interval during such Interest Period. Interest on
Eurocurrency Advances, commitment fees and letter of credit fees
32
shall be calculated for actual days elapsed on the basis of a
360-day year, and interest on Floating Rate Advances shall be
calculated for actual days elapsed on the basis of a 365/366-day
year. Interest shall be payable for the day an Advance is made
but not for the day of any payment on the amount paid if payment
is received prior to 2:00 p.m. (local time) at the place of
payment. If any payment of principal of or interest on an
Advance shall become due on a day which is not a Business Day,
such payment shall be made on the next succeeding Business Day
and, in the case of a principal payment, such extension of time
shall be included in computing interest in connection with such
payment.
2.16. Notification of Advances, Interest Rates, Prepayments
and Commitment Reductions. Promptly after receipt thereof (and in
any event by 1:00 p.m., Chicago time, on the applicable Borrowing
Date with respect to a Borrowing Notice for a Floating Rate Advance),
the Agent will notify each Lender of the contents of each Aggregate
Commitment reduction notice, Borrowing Notice, Conversion/Continuation
Notice, and repayment notice received by it hereunder. The Agent will
notify each Lender of the interest rate applicable to each Eurocurrency
Advance promptly upon determination of such interest rate and will give
each Lender prompt notice of each change in the Alternate Base Rate.
2.17. Lending Installations. Subject to Section 3.6, each Lender
will book its Loans at the appropriate Lending Installation listed on
the administrative information sheets provided to the Agent in
connection herewith or such other Lending Installation designated
by such Lender in accordance with the final sentence of this
Section 2.17. All terms of this Agreement shall apply to any
such Lending Installation and the Loans and any Notes issued
hereunder shall be deemed held by each Lender for the benefit of
any such Lending Installation. Subject to Section 3.6, each
Lender may, by written notice to the Agent and the Borrower in
accordance with Article XIII, designate replacement or additional
Lending Installations through which Loans will be made by it and
for whose account Loan payments are to be made.
2.18. Non-Receipt of Funds by the Agent. Unless the
Borrower or a Lender, as the case may be, notifies the Agent
prior to the date on which it is scheduled to make payment to the
Agent of (i) in the case of a Lender, the proceeds of a Loan or
(ii) in the case of the Borrower, a payment of principal,
interest or fees to the Agent for the account of the Lenders,
that it does not intend to make such payment, the Agent may
assume that such payment has been made. The Agent may, but shall
not be obligated to, make the amount of such payment available to
the intended recipient in reliance upon such assumption. If such
Lender or the Borrower, as the case may be, has not in fact made
such payment to the Agent, the recipient of such payment shall,
on demand by the Agent, repay to the Agent the amount so made
available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made
available by the Agent until the date the Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by
a Lender, the Federal Funds Effective Rate for such day for the
first three days and, thereafter, the interest rate applicable to
the relevant Loan or (y) in the case of payment by the Borrower,
the interest rate applicable to the relevant Loan.
2.19. Replacement of Lender. If the Borrower is required
pursuant to Section 3.1, 3.2 or 3.5 to make any additional payment
33
to any Lender or if any Lender's obligation to make or continue,
or to convert Floating Rate Advances into, Eurocurrency Advances
shall be suspended pursuant to Section 3.3 (any Lender so affected
an "Affected Lender"), the Borrower may elect to replace such
Affected Lender as a Lender party to this Agreement, provided
that no Default or Unmatured Default shall have occurred and be
continuing at the time of such replacement, and provided further
that, concurrently with such replacement, (i) another bank or
other entity which is reasonably satisfactory to the Borrower and
the Agent shall agree, as of such date, to purchase for cash the
Advances and other Obligations owing to the Affected Lender
pursuant to an assignment substantially in the form of Exhibit B
and to become a Lender for all purposes under this Agreement and
to assume all obligations of the Affected Lender to be terminated
as of such date and to comply with the requirements of Section
12.3 applicable to assignments, and (ii) the Borrower shall pay
to such Affected Lender in same day funds on the day of such
replacement (A) all interest, fees and other amounts then accrued
but unpaid to such Affected Lender by the Borrower hereunder to
and including the date of termination, including without
limitation payments due to such Affected Lender under Sections
3.1, 3.2 and 3.5, and (B) an amount, if any, equal to the payment
which would have been due to such Lender on the day of such
replacement under Section 3.4 had the Loans of such Affected
Lender been prepaid on such date rather than sold to the
replacement Lender.
2.20. Market Disruption. Notwithstanding the satisfaction
of all conditions referred to in Article II and Article IV with
respect to any Advance in any Agreed Currency other than Dollars,
if there shall occur on or prior to the date of such Advance any
change in national or international financial, political or economic
conditions or currency exchange rates or exchange controls which
would in the reasonable opinion of the Agent or the Required
Lenders make it impracticable for the Eurocurrency Loans
comprising such Advance to be denominated in the Agreed Currency
specified by the Borrower, then the Agent shall forthwith give
notice thereof to the Borrower and the Lenders, and such Loans
shall not be denominated in such Agreed Currency but shall be
made on such Borrowing Date in Dollars, in an aggregate principal
amount equal to the Dollar Amount of the aggregate principal
amount specified in the related Borrowing Notice or
Conversion/Continuation Notice, as the case may be, as Floating
Rate Loans, unless the Borrower notifies the Agent prior to 10:00
a.m. on such Borrowing Date that it elects not to borrow on such
date.
2.21. Judgment Currency. If for the purposes of obtaining
judgment in any court it is necessary to convert a sum due from the
Borrower hereunder in the currency expressed to be payable herein
(the "specified currency") into another currency, the parties hereto
agree, to the fullest extent that they may effectively do so, that
the rate of exchange used shall be that at which in accordance with
normal banking procedures the Agent could purchase the specified
currency with such other currency at the Agent's main Chicago
office on the Business Day preceding that on which final,
non-appealable judgment is given. The obligations of the
Borrower in respect of any sum due to any Lender or the Agent
hereunder shall, notwithstanding any judgment in a currency other
than the specified currency, be discharged only to the extent
that on the Business Day following receipt by such Lender or the
Agent (as the case may be) of any sum adjudged to be so due in
such other currency such Lender or the Agent (as the case may be)
may in accordance with normal, reasonable banking procedures
purchase the specified currency with such other currency. If the
34
amount of the specified currency so purchased is less than the
sum originally due to such Lender or the Agent, as the case may
be, in the specified currency, the Borrower agrees, to the
fullest extent that it may effectively do so, as a separate
obligation and notwithstanding any such judgment, to indemnify
such Lender or the Agent, as the case may be, against such loss,
and if the amount of the specified currency so purchased exceeds
(a) the sum originally due to any Lender or the Agent, as the
case may be, in the specified currency and (b) any amounts shared
with other Lenders as a result of allocations of such excess as a
disproportionate payment to such Lender under Section 11.2, such
Lender or the Agent, as the case may be, agrees to remit such
excess to the Borrower.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this
Agreement, the adoption of any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive
(whether or not having the force of law), or any change in the
interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or
compliance by any Lender or applicable Lending Installation with any
request or directive (whether or not having the force of law) of any
such authority, central bank or comparable agency first made after the
date hereof:
(i) subjects any Lender or any applicable Lending
Installation to any Taxes, or changes the basis of
taxation of payments (other than with respect to
Excluded Taxes) to any Lender in respect of its
Eurocurrency Loans, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or
similar requirement against assets of, deposits with or
for the account of, or credit extended by, any Lender
or any applicable Lending Installation (other than any
component of the Reserve Requirement taken into account
in determining the interest rate applicable to
Eurocurrency Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable
Lending Installation of making, funding or maintaining
its Eurocurrency Loans or reduces any amount receivable
by any Lender or any applicable Lending Installation in
connection with its Eurocurrency Loans, or requires any
Lender or any applicable Lending Installation to make
any payment calculated by reference to the amount of
Eurocurrency Loans held or interest received by it, by
an amount reasonably deemed material by such Lender,
and the result of any of the foregoing is to increase the cost to
such Lender or applicable Lending Installation of making or
maintaining its Eurocurrency Loans or Commitment or to reduce the
35
return received by such Lender or applicable Lending Installation
in connection with such Eurocurrency Loans or Commitment, then,
within 15 days of demand by such Lender, the Borrower shall pay
such Lender such additional amount or amounts as will compensate
such Lender for such increased cost or reduction in amount
received.
3.2. Changes in Capital Adequacy Regulations. If a Lender
(including any Lender in its capacity as the Issuing Lender)
reasonably determines that the amount of capital required or
expected to be maintained by such Lender, any Lending
Installation of such Lender or any corporation controlling such
Lender is increased as a result of a Change, then, within 15 days
of demand by such Lender, the Borrower shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender
reasonably determines is attributable to this Agreement, its
Loans, its L/C Interests or its Commitment to make Loans or to
issue or participate in Letters of Credit hereunder (after taking
into account such Lender's policies as to capital adequacy).
"Change" means (i) any change after the date of this Agreement in
the Risk-Based Capital Guidelines or (ii) any adoption of or
change in any other law, governmental or quasi-governmental rule,
regulation, policy, guideline, interpretation, or directive
(whether or not having the force of law) after the date of this
Agreement which affects the amount of capital required or
expected to be maintained by any Lender or any Lending
Installation or any corporation controlling any Lender.
"Risk-Based Capital Guidelines" means (i) the risk-based capital
guidelines in effect in the United States on the date of this
Agreement and (ii) the corresponding capital regulations
promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on
Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital
Standards" and any amendments to such regulations adopted prior
to the date of this Agreement.
3.3. Availability of Types of Advances. If any Lender
determines that maintenance of its Eurocurrency Loans at a
suitable Lending Installation would violate any applicable law,
rule, regulation, or directive, whether or not having the force
of law, or if the Required Lenders determine that (i) deposits of
a type, currency and maturity appropriate to match fund
Eurocurrency Advances are not available or (ii) the interest rate
applicable to Eurocurrency Advances does not accurately reflect
the cost of making or maintaining Eurocurrency Advances, then the
Agent shall suspend the availability of Eurocurrency Advances
(until the Agent shall notify the Borrower and the Lenders that
the circumstances causing such suspension no longer exist) and
require any affected Eurocurrency Advances to be repaid or
converted to Floating Rate Advances, subject to the payment of
any funding indemnification amounts required by Section 3.4.
3.4. Funding Indemnification. If any payment of a
Eurocurrency Advance occurs on a date which is not the last
day of the applicable Interest Period, whether because of
acceleration, prepayment or otherwise, or a Eurocurrency Advance
is not made on the date specified by the Borrower for any reason
other than default by one or more Lenders, the Borrower will
indemnify each Lender (other than any Lender in default of its
obligations under this Agreement) for any loss or cost actually
incurred by it resulting therefrom, including, without limitation,
any loss or cost in liquidating or employing deposits acquired to
fund or maintain such Eurocurrency Advance, but in any event not
36
including lost profits.
3.5. Taxes. (i) All payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any Note shall
be made free and clear of and without deduction or withholding for
any and all Taxes. If the Borrower shall be required by law to deduct
or withhold any Taxes from or in respect of any sum payable hereunder
to any Lender or the Agent, (a) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
3.5) such Lender or the Agent (as the case may be) receives an amount
equal to the sum it would have received had no such deductions
been made, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant
authority in accordance with applicable law and (d) the Borrower
shall furnish to the Agent the original copy of a receipt
evidencing payment thereof within 30 days after such payment is
made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise
or property taxes, charges or similar levies which arise from any
payment made hereunder or under any Note or from the execution or
delivery of, or otherwise with respect to, this Agreement or any
Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agent and
each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed
on amounts payable under this Section 3.5) paid by the Agent or
such Lender and any liability (including penalties, interest and
expenses) arising therefrom or with respect thereto. Payments
due under this indemnification shall be made within 30 days of
the date the Agent or such Lender makes demand therefor pursuant
to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not less than ten Business Days
after the date of this Agreement, (i) deliver to each of the
Borrower and the Agent two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States
federal income taxes, and (ii) deliver to each of the Borrower
and the Agent a United States Internal Revenue Form W-8 or W-9,
as the case may be, and certify that it is entitled to an
exemption from United States backup withholding tax. Each Non-
U.S. Lender further undertakes to deliver to each of the Borrower
and the Agent (x) renewals or additional copies of such form (or
any successor form) on or before the date that such form expires
or becomes obsolete, and (y) after the occurrence of any event
requiring a change in the most recent forms so delivered by it,
such additional forms or amendments thereto as may be reasonably
requested by the Borrower or the Agent. All forms or amendments
described in the preceding sentence shall certify that such
Lender is entitled to receive payments under this Agreement
without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any
change in treaty, law or regulation) has occurred prior to the
date on which any such delivery would otherwise be required which
renders all such forms inapplicable or which would prevent such
37
Lender from duly completing and delivering any such form or
amendment with respect to it and such Lender advises the Borrower
and the Agent that it is not capable of receiving payments
without any deduction or withholding of United States federal
income tax.
38
(v) For any period during which a Non-U.S. Lender has
failed to provide the Borrower with an appropriate form pursuant
to clause (iv), above (unless such failure is due to a change in
treaty, law or regulation, or any change in the interpretation or
administration thereof by any governmental authority, occurring
subsequent to the date on which a form originally was required to
be provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes
imposed by the United States; provided that, should a Non-U.S.
Lender which is otherwise exempt from or subject to a reduced
rate of withholding tax become subject to Taxes because of its
failure to deliver a form required under clause (iv), above, the
Borrower shall take such steps as such Non-U.S. Lender shall
reasonably request to assist such Non-U.S. Lender to recover such
Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Agreement or any Note pursuant to the law of any relevant
jurisdiction or any treaty shall deliver to the Borrower (with a
copy to the Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country
or any political subdivision thereof asserts a claim that the
Agent did not properly withhold tax from amounts paid to or for
the account of any Lender (because the appropriate form was not
delivered or properly completed, because such Lender failed to
notify the Agent of a change in circumstances which rendered its
exemption from withholding ineffective, or for any other reason),
such Lender shall indemnify the Agent fully for all amounts paid,
directly or indirectly, by the Agent as tax, withholding
therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable to
the Agent under this subsection, together with all costs and
expenses related thereto (including attorneys fees and time
charges of attorneys for the Agent, which attorneys may be
employees of the Agent). The obligations of the Lenders under
this Section 3.5(vii) shall survive the payment of the
Obligations and termination of this Agreement.
3.6. Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurocurrency Loans to reduce any
liability of the Borrower to such Lender under Sections 3.1, 3.2 and
3.5 or to avoid the unavailability of Eurocurrency Advances under
Section 3.3, so long as such designation is not, in the judgment of such
Lender, disadvantageous to such Lender. Each Lender shall
deliver a written statement of such Lender to the Borrower (with
a copy to the Agent) as to the amount due, if any, under Section
3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender
determined such amount and shall be final, conclusive and binding
on the Borrower in the absence of manifest error. Determination
of amounts payable under such Sections in connection with a
Eurocurrency Loan shall be calculated as though each Lender
funded its Eurocurrency Loan through the purchase of a deposit of
the type, currency and maturity corresponding to the deposit used
as a reference in determining the Eurocurrency Rate applicable to
such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written
statement of any Lender shall be payable within fifteen days
39
after receipt by the Borrower of such written statement. The
obligations of the Borrower under Sections 3.1, 3.2, 3.4 and 3.5
shall survive payment of the Obligations and termination of this
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Advance. The Lenders shall not be required
to make the initial Loans hereunder unless (a) such initial Loans
are made not later than November 1, 1999, (b) the PSD Acquisition
has been (or concurrently therewith will be) consummated, (c) the
Borrower has furnished to the Agent the documents listed on the
List of Closing Documents attached hereto as Schedule 4.1, (d) the
Borrower has received not less than $100,000,000 in proceeds from
the Bridge Loan on the terms and conditions set forth in the
Bridge Loan Agreement or from Permitted Subordinated
Indebtedness, (e) the Borrower has paid (or made arrangements to
pay concurrently with the making of the initial Loans) all
principal, interest, fees and premiums, if any, on all loans
outstanding under the Existing Credit Agreement and has
terminated such agreement, and (f) the Borrower has paid to the
Agent and the Arranger the fees agreed to in the letter agreement
dated July 2, 1999 then due and owing.
4.2. Each Advance and Letter of Credit. The Lenders shall
not be required to make any Advance, and the Issuing Lender shall
not be required to issue any Letter of Credit, unless on the applicable
Borrowing Date or date of issuance:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article
V are true and correct as of such Borrowing Date or
date of issuance except to the extent any such
representation or warranty is stated to relate solely
to an earlier date, in which case such representation
or warranty shall have been true and correct on and as
of such earlier date.
Each Borrowing Notice with respect to each such Advance and
each application with respect to each such Letter of Credit shall
constitute a representation and warranty by the Borrower that the
conditions contained in Section 4.2(i) and (ii) have been
satisfied. Subject to Section 2.11, the conditions contained in
this Section 4.2 shall not apply to the conversion or
continuation of all or any portion of any outstanding Advance.
40
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
5.1. Existence and Standing. Each of the Borrower and
its Subsidiaries is a corporation, partnership (in the case of
Subsidiaries only) or limited liability company duly and properly
incorporated or organized, as the case may be, validly existing
and (to the extent such concept applies to such entity) in good
standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to own, operate and
encumber its Property and to conduct its business, as presently
conducted and as proposed to be conducted giving effect to the
PSD Acquisition, in each jurisdiction in which its business is
conducted, except for any failure to be so authorized that could
not reasonably be expected to have a Material Adverse Effect.
5.2. Authorization and Validity. Each Loan Party has the
power and authority and legal right to execute and deliver the Loan
Documents to which it is a party and to perform its obligations
thereunder. The execution and delivery by each Loan Party of the Loan
Documents to which it is a party and the performance of its
obligations thereunder have been duly authorized by proper
corporate (or equivalent) proceedings, and the Loan Documents to
which such Loan Party is a party constitute legal, valid and
binding obligations of such Loan Party enforceable against such
Loan Party in accordance with their respective terms, except as
enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights
generally.
5.3. No Conflict; Government Consent. Neither the execution
and delivery by the Loan Parties of the Loan Documents, nor the
consummation of the transactions therein contemplated, nor
compliance with the provisions thereof will violate (i) any law,
rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower or any of its Subsidiaries or (ii)
the Borrower's or any Subsidiary's articles or certificate of
incorporation, partnership agreement, certificate of partnership,
articles or certificate of organization, by-laws, or operating or
other management agreement, as the case may be, or (iii) the
provisions of any indenture, instrument or agreement to which the
Borrower or any of its Subsidiaries is a party or is subject, or
by which it, or its Property, is bound, or conflict with or
constitute a default thereunder, or result in, or require, the
creation or imposition of any Lien in, of or on the Property of
the Borrower or any Subsidiary pursuant to the terms of any such
indenture, instrument or agreement. No order, consent,
adjudication, approval, license, authorization, or validation of,
or filing, recording or registration with, or exemption by, or
other action in respect of any Governmental Authority which has
not been obtained by the Borrower or any of its Subsidiaries, is
required to be obtained by the Borrower or any of its
Subsidiaries in connection with the execution and delivery of the
Loan Documents, the borrowings under this Agreement, the payment
and performance by the Borrower of the Obligations or the
legality, validity, binding effect or enforceability of any of
the Loan Documents, except (i) filings, consents or notices which
have been made, obtained or given, or which, if not made,
41
obtained or given, individually or in the aggregate could not
reasonably be expected to have a Material Adverse Effect, and
(ii) filings necessary to create or perfect security interests in
the Collateral.
5.4. Financial Statements. (a) The December 31, 1998 audited
consolidated financial statements and the March 31, 1999 and June
30, 1999 unaudited consolidated financial statements of the
Borrower and its Subsidiaries heretofore delivered to the Lenders
were prepared in accordance with generally accepted accounting
principles in effect on the date such statements were prepared
and fairly present the consolidated financial condition and
operations of the Borrower and its Subsidiaries at such dates and
the consolidated results of their operations for the periods then
ended, subject, in the case of such unaudited financial
statements, to normal year-end adjustments and the absence of
notes.
(b) The December 31, 1998, financial statements of the
Acquired Business and any additional financial statements of the
Acquired Business required by the Securities and Exchange
Commission heretofore delivered to the Lenders were prepared in
accordance with U.S. generally accepted accounting principles in
effect on the date such statements were prepared and fairly
present the financial condition and operations of the Acquired
Business at such dates and the results of its operations for the
periods then ended.
(c) The pro forma financial statements of the Borrower
and its Subsidiaries, copies of which are attached hereto as
Schedule 5.4, present on a pro forma basis the financial
condition of the Borrower and its Subsidiaries as of such date,
and reflect on a pro forma basis those liabilities reflected in
the notes thereto and resulting from consummation of the PSD
Acquisition, the transactions contemplated by this Agreement and
the Bridge Loan Agreement, and the payment or accrual of all
costs and expenses with respect to any of the foregoing. The
projections and assumptions expressed in such pro forma
financials were prepared in good faith and represent good faith
assumptions and estimates on the part of the Borrower based on
the information available to the Borrower at the time so
prepared.
5.5. Material Adverse Change. Since December 31, 1998
there has been no change in the business, Property, condition
(financial or otherwise) or results of operations of the Borrower
and its Subsidiaries taken as a whole, including, without
limitation, the Acquired Business, which could reasonably be
expected to have a Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed
all United States federal tax returns and all other tax returns
which are required to be filed and have paid all taxes due pursuant
to said returns or pursuant to any assessment received by the Borrower
or any of its Subsidiaries, except such taxes, if any, as are not
yet due and payable or are being contested in good faith and as to
which adequate reserves have been provided in accordance with
Agreement Accounting Principles. The United States income tax returns
of the Borrower and its Subsidiaries have been audited by the Internal
Revenue Service through the fiscal year ended December 31, 1994. No tax
liens have been filed and no claims are being asserted with
respect to any such taxes. The charges, accruals and reserves on
the books of the Borrower and its Subsidiaries in respect of any
42
taxes are adequate in accordance with Agreement Accounting Principles.
5.7. Litigation and Contingent Obligations. Except as set
forth on Schedule 5.7, there is no litigation, arbitration,
governmental investigation, proceeding or inquiry pending or, to
the knowledge of any of their officers, threatened against or
affecting the Borrower or any of its Subsidiaries which could
reasonably be expected to have a Material Adverse Effect or which
seeks to prevent, enjoin or delay the making of any Loans. Other
than any liability incident to any litigation, arbitration or
proceeding which (i) could not reasonably be expected to have a
Material Adverse Effect or (ii) is set forth on Schedule 5.7, the
Borrower and its Subsidiaries have no material contingent
obligations not provided for or disclosed in the financial
statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule 5.8 contains an accurate list
of all Subsidiaries of the Borrower as of the date of this Agreement
after giving effect to the PSD Acquisition, setting forth their
respective jurisdictions of organization and the percentage of their
respective Equity Interests owned by the Borrower or other
Subsidiaries. All of the issued and outstanding Equity Interests
of such Subsidiaries have been (to the extent such concepts are
relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9. ERISA. Except as could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect:
there are no Unfunded Liabilities under any Single Employer Plans;
neither the Borrower nor any other member of the Controlled Group
has incurred, or is reasonably expected to incur, any withdrawal
liability to Multiemployer Plans; each Plan complies in all material
respects with all applicable requirements of law and regulations; no
Reportable Event has occurred with respect to any Plan; neither
the Borrower nor any other member of the Controlled Group has
withdrawn from any Plan or initiated steps to do so; and no steps
have been taken to reorganize or terminate any Plan.
5.10. Accuracy of Information. No information, exhibit or
report furnished by the Borrower or any of its Subsidiaries to the
Agent or to any Lender in connection with the negotiation of, or
compliance with, the Loan Documents contained any material
misstatement of fact or omitted to state a material fact or any fact
necessary to make the statements contained therein not materially
misleading in a manner relied upon by the Lenders to their detriment.
5.11. Regulation U. Neither the Borrower nor any of its
Subsidiaries is engaged in the business of extending credit for the
purpose of purchasing or carrying Margin Stock (as defined in
Regulation U).
5.12. Material Agreements. Neither the Borrower nor any
Subsidiary is a party to any agreement or instrument or subject to
any charter or other corporate restriction which could reasonably
be expected to have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions
contained in any agreement (other than agreements or instruments
43
evidencing or governing Indebtedness) to which it is a party,
which default could reasonably be expected to have a Material
Adverse Effect.
5.13. Compliance With Laws. The Borrower and its
Subsidiaries have complied with all applicable statutes, rules,
regulations, orders and restrictions of any Governmental Authority
having jurisdiction over the conduct of their respective businesses
or the ownership of their respective Property, except for any
failure to comply with any of the foregoing which could not
reasonably be expected to have a Material Adverse Effect.
5.14. Ownership of Properties. Except as set forth on
Schedule 6.15, on the date of this Agreement, the Borrower and its
Subsidiaries will have good title, free of all Liens other than
those permitted by Section 6.15, to all of the Property and assets
reflected in the Borrower's most recent consolidated financial
statements provided to the Agent as owned by the Borrower and its
Subsidiaries and all other Property material to the Borrower's and
its Subsidiaries' businesses, except as sold or otherwise disposed of
in the ordinary course of business. The Borrower and each
Subsidiary (i) owns and/or possesses all the patents, trademarks,
trade names, service marks, copyrights, licenses and rights with
respect to the foregoing necessary for the present conduct of its
business without any known conflict with the rights of others,
and (ii) owns and/or possesses and/or has applied for all the
patents, trademarks, trade names, service marks, copyrights,
licenses and rights with respect to the foregoing necessary for
the planned conduct of its business for the next six months,
without any known conflict with the rights of others, except,
with respect to clauses (i) and (ii), where the failure to own
and/or possess any patents, trademarks, trade names, service
marks, copyrights, licenses and/or rights could not reasonably be
expected to have a Material Adverse Effect and/or subject the
Borrower or any Subsidiary to any material liability in
connection with any infringement and/or similar cause of action
related to any of the foregoing.
5.15. Plan Assets; Prohibited Transactions. The Borrower
is not an entity deemed to hold "plan assets" within the meaning of
29 C.F.R. Section 2510.3-101 of an employee benefit plan (as defined
in Section 3(3) of ERISA) which is subject to Title I of ERISA or any
plan (within the meaning of Section 4975 of the Code), and neither
the execution of this Agreement nor the making of Loans or issuance
of Letters of Credit hereunder gives rise to a prohibited transaction
(within the meaning of Section 406 of ERISA or Section 4975 of the
Code) with respect to "plan assets" of the Borrower and its
Subsidiaries.
5.16. Environmental Matters. In the ordinary course of its
business, the officers of the Borrower consider the effect of
Environmental Laws on the business of the Borrower and its
Subsidiaries, in the course of which they identify and evaluate
potential risks and liabilities accruing to the Borrower due to
Environmental Laws. On the basis of this consideration, the Borrower
has concluded that Environmental Laws could not reasonably be
expected to have a Material Adverse Effect. Neither the Borrower
nor any Subsidiary has received any notice to the effect that its
operations are not in material compliance with any of the
requirements of applicable Environmental Laws or are the subject
of any investigation by any Governmental Authority evaluating
whether any remedial action is needed to respond to a release of
any toxic or hazardous waste or substance into the environment,
44
which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor
any Subsidiary is an "investment company" or a company "controlled"
by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
5.18. Public Utility Holding Company Act. Neither the
Borrower nor any Subsidiary is a "holding company" or a
"subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding
company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19. Year 2000. The Borrower has generally completed its
assessment of Year 2000 Issues and has a realistic program (the "Year
2000 Program") for completing required remediations and replacements
of its assets on a timely basis. The Borrower has identified
significant suppliers and is requesting information from them regarding
the Year 2000 readiness of their products and services, but it has
not, as of the date hereof, received sufficient responses to
ascertain that a material adverse impact can be avoided as a
result of the failure of such suppliers to deliver products and
services after December 31, 1999. Except as set forth in the
preceding sentence and for Year 2000 Issues affecting the United
States and international economies generally, based on its
assessment and Year 2000 Program the Borrower does not anticipate
that Year 2000 Issues will have a Material Adverse Effect.
5.20. Subordinated Indebtedness. The Secured Obligations
constitute senior indebtedness which is entitled to the benefits
of the subordination provisions of all outstanding Subordinated
Indebtedness.
5.21. Post-Retirement Benefits. As of the Closing Date,
neither the Borrower nor any of its Subsidiaries has any expected
costs of post-retirement medical and insurance benefits payable
to their employees and former employees, as estimated by the
Borrower in accordance with Financial Accounting Standards Board
Statement No. 106.
5.22. Insurance. Schedule 5.22 accurately sets forth as of
the Closing Date all insurance policies and programs currently in
effect with respect to the respective properties and assets and
business of the Borrower and its Domestic Subsidiaries, specifying,
for each such policy and program, (i) the amount thereof, (ii) the
risks insured against thereby, (iii) the name of the insurer and each
insured party thereunder, (iv) the policy or other identification
number thereof, (v) the expiration date thereof, (vi) the annual
premium with respect thereto, and (vii) any reserves relating to
any self-insurance program that is in effect.
5.23. The PSD Acquisition. As of the Closing Date and
immediately prior to the making of the initial Loans:
(i) the PSD Purchase Agreement is in full force and
effect, no material breach, default or waiver of any term or
45
provision of the PSD Purchase Agreement by the Borrower or
any of its Subsidiaries or, to the best of the Borrower's
knowledge, the other parties thereto has occurred (except
for such breaches, defaults and waivers, if any, consented
to in writing by the Agent) and no action has been taken by
any competent Governmental Authority which restrains,
prevents or imposes any material adverse condition upon, or
seeks to restrain, prevent or impose any material adverse
condition upon, the PSD Acquisition;
(ii) the representations and warranties of each of the
Borrower and, to the Borrower's knowledge, the Sellers (as
defined in the PSD Purchase Agreement) contained in the PSD
Purchase Agreement are true and correct in all material
respects;
(iii) except as set forth on Schedule 5.7, to the
Borrower's knowledge, there is no litigation, arbitration,
governmental investigation, proceeding or inquiry pending or
threatened against Pasteur Sanofi Diagnostics S.A. or any of
its Subsidiaries which could reasonably be expected to have
a material adverse effect on the business, Property,
condition (financial or otherwise) or results of operations
of Pasteur Sanofi Diagnostics S.A. and its Subsidiaries,
taken as a whole; and
(iv) all material conditions precedent to, and all
material consents and material regulatory approvals
necessary to permit, the PSD Acquisition pursuant to the PSD
Purchase Agreement have been satisfied or waived with the
prior written consent of the Agent; but for the payment of
the purchase price, the PSD Acquisition has been
consummated, or concurrently with the making of the initial
Loans hereunder will be consummated, in accordance with the
PSD Purchase Agreement and applicable law; the aggregate
purchase price for the Acquired Business under the PSD
Purchase Agreement does not exceed the equivalent of U.S.
$210,000,000; and upon the payment of the purchase price the
Borrower will obtain good and marketable title to the
"Shares" (as defined in the PSD Purchase Agreement) free and
clear of any Liens other than Liens permitted under
Section 6.15.
5.24. Solvency. (i) Immediately after the consummation
of the transactions to occur on the date hereof and immediately
following the making of each Loan, if any, made on the date hereof
and after giving effect to the application of the proceeds of such
Loans, (a) the fair value of the assets of the Borrower and its
Subsidiaries on a consolidated basis, at a fair valuation, will
exceed the debts and liabilities, subordinated, contingent or
otherwise, of the Borrower and its Subsidiaries on a consolidated
basis; (b) the present fair saleable value of the Property of the
Borrower and its Subsidiaries on a consolidated basis will be greater
than the amount that will be required to pay the probable liability of
the Borrower and its Subsidiaries on a consolidated basis on their
debts and other liabilities, subordinated, contingent or
otherwise, as such debts and other liabilities become absolute
and matured; (c) the Borrower and its Subsidiaries on a
consolidated basis will be able to pay their debts and
liabilities, subordinated, contingent or otherwise, as such debts
and liabilities become absolute and matured; and (d) the Borrower
and its Subsidiaries on a consolidated basis will not have
unreasonably small capital with which to conduct the businesses
in which they are engaged as such businesses are now conducted
and are proposed to be conducted after the date hereof.
46
(ii) The Borrower does not intend to, or to permit any of
its Subsidiaries to, and does not believe that it or any of its
Subsidiaries will, incur debts beyond its ability to pay such
debts as they mature, taking into account the timing of and
amounts of cash to be received by it or any such Subsidiary and
the timing of the amounts of cash to be payable on or in respect
of its Indebtedness or the Indebtedness of any such Subsidiary.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required
Lenders shall otherwise consent in writing:
6.1. Financial Reporting.2 The Borrower will maintain,
for itself and each Subsidiary, a system of accounting established
and administered in accordance with generally accepted accounting
principles, and furnish to the Lenders:
(i) Within 100 days after the close of each of its fiscal
years, an unqualified (except for qualifications
relating to changes in accounting principles or
practices reflecting changes in generally accepted
accounting principles and required or approved by the
Borrower's independent certified public accountants)
audit report certified by independent certified public
accountants acceptable to the Required Lenders,
prepared in accordance with Agreement Accounting
Principles on a consolidated basis for itself and its
Subsidiaries, including balance sheets as of the end of
such period, related profit and loss and reconciliation
of surplus statements, and a statement of cash flows.
(ii) Within 60 days after the close of the first three
quarterly periods of each of its fiscal years, for
itself and its Subsidiaries, consolidated unaudited
balance sheets as at the close of each such period and
consolidated profit and loss and reconciliation of
surplus statements and a statement of cash flows for
the period from the beginning of such fiscal year to
the end of such quarter, all certified by its chief
financial officer.
(iii) As soon as available, but in any event within 90
days after the beginning of each fiscal year of the
Borrower, a copy of the plan and forecast (including a
projected consolidated balance sheet, income statement
and funds flow statement) of the Borrower and its
Subsidiaries for such fiscal year.
(iv) Together with the financial statements required under
Sections 6.1(i) and (ii), a compliance certificate in
substantially the form of Exhibit A signed by its Chief
Financial Officer or Treasurer showing the calculations
necessary to determine compliance with this Agreement
and stating that no Default or Unmatured Default
47
exists, or if any Default or Unmatured Default exists,
stating the nature and status thereof.
(v) Within 270 days after the close of each fiscal year, a
statement of the Unfunded Liabilities of each Single
Employer Plan, certified as correct by an actuary
enrolled under ERISA.
(vi) As soon as possible and in any event within 20 days
after the Borrower knows that any Reportable Event has
occurred with respect to any Plan, a statement, signed
by the chief financial officer of the Borrower,
describing said Reportable Event and the action which
the Borrower proposes to take with respect thereto.
(vii) As soon as possible and in any event within 20
days after receipt by the Borrower, a copy of (a) any
notice or claim to the effect that the Borrower or any
of its Subsidiaries is or may be liable to any Person
as a result of the release by the Borrower, any of its
Subsidiaries, or any other Person of any toxic or
hazardous waste or substance into the environment, and
(b) any notice alleging any violation of any federal,
state or local environmental, health or safety law or
regulation by the Borrower or any of its Subsidiaries,
which, in either case, could reasonably be expected to
have a Material Adverse Effect.
(viii) Promptly upon the furnishing thereof to the
shareholders of the Borrower, copies of all financial
statements, reports and proxy statements so furnished.
(ix) Promptly upon the filing thereof, copies of all
registration statements and annual, quarterly, monthly
or other regular reports which the Borrower or any of
its Subsidiaries files with the Securities and Exchange
Commission.
(x) Such other information (including non-financial
information) as the Agent or any Lender may from time
to time reasonably request.
6.2. Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Advances to pay the purchase price
and related costs and expenses of the PSD Acquisition, to refinance
existing Indebtedness of the Acquired Business, to repay loans
outstanding under the Existing Credit Agreement, for working capital
and for other general corporate purposes; provided, however, that on the
Closing Date, after giving effect to all Revolving Loans to be
made on the Closing Date and the Existing Letters of Credit, the
unused portion of the Aggregate Commitment shall not be less than
$15,000,000. The Borrower will not, nor will it permit any
Subsidiary to, use any of the proceeds of the Advances to
purchase or carry any "margin stock" (as defined in Regulation U).
6.3. Notice of Default. The Borrower will give prompt notice
in writing to the Lenders of the occurrence of any Default or Unmatured
48
Default and of any other development, financial or otherwise (including,
without limitation, developments with respect to Year 2000 Issues), which
could reasonably be expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause
each Subsidiary to, carry on and conduct its business only in fields
of enterprise substantially the same as or reasonably related to the
fields of enterprise in which it is presently conducted (after giving
effect to the PSD Acquisition) and do all things necessary to
remain duly incorporated or organized, validly existing and (to
the extent such concept applies to such entity) in good standing
as a domestic corporation, partnership or limited liability
company in its jurisdiction of incorporation or organization, as
the case may be, and maintain all requisite authority to conduct
its business in each jurisdiction in which its business is
conducted, in each case, except to the extent that a failure to
do so could not reasonably be expected to have a Material Adverse
Effect.
6.5. Taxes. The Borrower will, and will cause each Subsidiary
to, timely file complete and correct United States federal, if applicable,
and applicable foreign, state and local tax returns required by law and
pay when due all taxes, assessments and governmental charges and levies
upon it or its income, profits or Property which if unpaid might
become a Lien on any of the Collateral, except those which are
being contested in good faith by appropriate proceedings and with
respect to which adequate reserves have been set aside if and to
the extent required by Agreement Accounting Principles.
6.6. Insurance; Insurance and Condemnation Proceeds. (a)
The Borrower shall maintain for itself and its Domestic
Subsidiaries, or shall cause each of its Domestic Subsidiaries to
maintain, in full force and effect the insurance policies and
programs listed on Schedule 5.22 or substantially similar
policies and programs or other policies and programs as reflect
coverage that is reasonably consistent with prudent industry
practice. The Borrower shall deliver to the Agent (i)
endorsements to all "All Risk" physical damage insurance policies
on all of the Borrower's and the Guarantors' tangible real and
personal property and assets and business interruption insurance
policies naming the Agent loss payee, and (ii) certificates as to
all general liability and other liability policies naming the
Agent an additional insured. In the event the Borrower or any of
its Domestic Subsidiaries, at any time or times hereafter shall
fail to obtain or maintain any of the policies or insurance
required herein or to pay any premium in whole or in part
relating thereto within ten days after written notice from the
Agent, then the Agent, without waiving or releasing any
obligations or resulting Default hereunder, may at any time or
times thereafter so long as such failure shall continue (but
shall be under no obligation to do so) obtain and maintain such
policies of insurance and pay such premiums and take any other
action with respect thereto which the Agent deems advisable. All
sums so disbursed by the Agent shall constitute part of the
Obligations, payable as provided in this Agreement.
(b) The Borrower shall direct (and, if applicable,
shall cause any Guarantor to direct) all insurers under policies
of property damage, machinery and business interruption insurance
and payors of any condemnation claim or award relating to the
property to pay all proceeds payable under such policies or with
respect to such claim or award for any loss with respect to the
Collateral directly to the Agent, for the benefit of the Agent
and the Holders of the Secured Obligations; provided that if such
49
proceeds or award is less than $5,000,000 ("Excluded Proceeds"),
unless a Default shall have occurred and be continuing, the Agent
shall remit such Excluded Proceeds to the Borrower. Each such
policy shall contain a long-form loss-payable endorsement naming
the Agent as loss payee, which endorsement shall be in form and
substance acceptable to the Agent. The Agent shall, upon receipt
of such proceeds (other than Excluded Proceeds) and at the
Borrower's direction, either apply the same to the principal
amount of the Revolving Loans outstanding at the time of such
receipt and create a corresponding reserve against the Aggregate
Commitment in an amount equal to such application (the "Decision
Reserve") or hold them as cash collateral for the Obligations in
an interest bearing account. For up to one hundred eighty days
from the date of any loss (the "Decision Period"), the Borrower
may notify the Agent that it intends to restore, rebuild or
replace the property subject to any insurance payment or
condemnation award and shall, as soon as practicable thereafter,
provide the Agent detailed information, including a construction
schedule and cost estimates. Should a Default occur and be
continuing during the Decision Period, should the Borrower notify
the Agent during the Decision Period that it has decided not to
rebuild or replace such property, or should the Borrower fail to
notify the Agent of the Borrower's decision during the Decision
Period, then the amounts held as cash collateral pursuant to this
Section 6.6 or as the Decision Reserve shall upon the Required
Lenders' direction be applied as a mandatory prepayment of the
Term Loans pursuant to Section 2.7.2(a). Proceeds held as cash
collateral pursuant to this Section 6.6 or as the Decision
Reserve shall be disbursed as payments for restoration,
rebuilding or replacement of such property become due; provided,
however, should a Default occur and be continuing after the
Borrower has notified the Agent that it intends to rebuild or
replace the property, the Decision Reserve or amounts held as
cash collateral may, or shall, upon the Required Lenders'
direction, be applied as a mandatory prepayment of the Term Loans
pursuant to Section 2.7.2(a). In the event the Decision Reserve
is to be applied as a mandatory prepayment of the Term Loans, the
Borrower shall be deemed to have requested an Advance of
Revolving Loans in an amount equal to the Decision Reserve, and
such Advance shall be made as a Floating Rate Advance regardless
of any failure of the Borrower to meet the conditions precedent
set forth in Article IV. Upon completion of the restoration,
rebuilding or replacement of such property, the unused proceeds
shall constitute Net Cash Proceeds of an Asset Sale and shall be
applied as a mandatory prepayment of the Term Loans pursuant to
Section 2.7.2(a).
6.7. Compliance with Laws. The Borrower will, and will
cause each Subsidiary to, comply with all laws, rules, regulations,
orders, writs, judgments, injunctions, decrees or awards to which
it may be subject including, without limitation, all Environmental
Laws, the violation of which could reasonably be expected to have a
Material Adverse Effect and/or result in the creation of any Lien
not permitted by Section 6.15.
6.8. Maintenance of Properties. The Borrower will, and will
cause each Subsidiary to, do all things necessary and commercially
reasonable to maintain, preserve, protect and keep its Property
in good repair, working order and condition, ordinary wear and
tear excepted, and make all necessary and proper repairs,
renewals and replacements so that its business carried on in
connection therewith may be properly conducted at all times, in
each case except to the extent that a failure to do so could not
reasonably be expected to have a Material Adverse Effect.
50
6.9. Inspection. The Borrower will, and will cause each
Subsidiary to, permit the Agent and the Lenders, by their respective
representatives and agents, to inspect any of the Property, books
and financial records of the Borrower and each Subsidiary, to examine
and make copies of the books of accounts and other financial records of
the Borrower and each Subsidiary, and to discuss the affairs,
finances and accounts of the Borrower and each Subsidiary with,
and to be advised as to the same by, their respective officers,
in each case upon reasonable advance notice and at such
reasonable times (during normal business hours) and intervals as
the Agent may designate. In addition, during the continuance of
any Default, the Agent or any Lender may, at their sole cost and
expense, retain an outside environmental consulting firm for the
purpose of conducting a Phase I environmental site assessment,
and any follow-up investigation reasonably suggested by such
assessment, of any of the Property, upon reasonable advance
notice and at reasonable times and intervals as the Agent may
designate.
6.10. Dividends. The Borrower will not, nor will it permit
any Subsidiary to, declare or pay any dividends or make any distributions
on its capital stock (other than dividends payable in its own capital
stock) or redeem, repurchase or otherwise acquire or retire any of its
Equity Interests at any time outstanding, except that any
Subsidiary may declare and pay dividends or make distributions to
the Borrower or to a Wholly-Owned Subsidiary and excluding share
repurchases of the Borrower's capital stock used solely to fund
employee stock purchase plans and employee stock option plans,
provided such share repurchases do not exceed $5,000,000 in the
aggregate in any fiscal year (including, without limitation, the
fiscal year ending December 31, 1999).
6.11. Indebtedness. The Borrower will not, nor will it
permit any Subsidiary to, create, incur or suffer to exist any
Indebtedness, except:
(i) The Loans and Reimbursement Obligations.
(ii) Indebtedness (other than Indebtedness of Foreign
Subsidiaries) existing on the date hereof and described
in Schedule 6.11.
(iii) Indebtedness arising under Rate Management Transactions
and other Financial Contracts permitted by Section
6.25.
(iv) The Subordinated Indebtedness.
(v) Indebtedness of Foreign Subsidiaries not exceeding
$30,000,000 (or equivalent in foreign currencies) in
aggregate principal amount at any one time outstanding
prior to December 31, 1999 and $25,000,000 (or
equivalent in foreign currencies) in aggregate
principal amount at any one time outstanding on or
after December 31, 1999.
(vi) Factoring of accounts and notes receivable of
Foreign Subsidiaries, provided that (A) such
receivables sold without recourse to the selling
51
Foreign Subsidiary shall be sold on commercially
reasonable terms and (B) the liabilities of such
Foreign Subsidiaries with respect to such receivables
sold with recourse to the selling Foreign Subsidiary
shall not exceed $10,000,000 (or equivalent in foreign
currencies) in the aggregate outstanding at any time.
(vii) Indebtedness constituting Contingent
Obligations permitted by Section 6.24.
(viii) Indebtedness incurred pursuant to so-called
"synthetic lease" transactions ("Synthetic Leases") and
Sale and Leaseback Transactions, provided that at the
time such transaction is entered into (A) no Default or
Unmatured Default exists and (B) the Leverage Ratio as
of the last day of the most recent fiscal quarter for
which the Borrower has delivered financial statements
pursuant to Section 6.1 on a pro forma basis as if such
Synthetic Lease or Sale and Leaseback Transaction were
entered into at the beginning of the four-fiscal
quarter period ending on such day would have been equal
to or less than 3.00 to 1.
(ix) Indebtedness of the Borrower to any Subsidiary or of
any Guarantor to the Borrower or any other Guarantor or
of any Subsidiary that is not a Guarantor to any other
Subsidiary that is not a Guarantor; provided that if
the Borrower or any Guarantor is the obligor on such
Indebtedness, such Indebtedness shall be expressly
subordinate to the payment in full of the Secured
Obligations in a manner satisfactory in form and
substance to the Agent.
(x) Other Indebtedness, not otherwise permitted by clauses
(i) through (ix) above, not exceeding $15,000,000 in
the aggregate outstanding at any one time.
6.12. Merger. The Borrower will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person, except
that a Subsidiary may merge (i) into the Borrower or a Wholly-Owned
Subsidiary or (ii) in connection with a Permitted Acquisition.
6.13. Sale of Assets. The Borrower will not, nor will it permit
any Subsidiary to, lease, sell or otherwise dispose of its Property to
any other Person, except:
(i) Sales of inventory in the ordinary course of business.
(ii) Sales by Foreign Subsidiaries of accounts receivable
and notes receivable permitted by Section 6.11(vi).
(iii) Sales or other dispositions of Property
in connection with Synthetic Leases and Sale and
Leaseback Transactions permitted by Section 6.11(viii).
(iv) Equipment or other assets traded in or exchanged for
replacement assets.
52
(v) Leases, sales or other dispositions of its Property
(excluding leases, sales or other dispositions
permitted under clauses (i) through (iv) above) that,
together with all other Property of the Borrower and
its Subsidiaries previously leased, sold or disposed of
as permitted by this clause (v) during the four-fiscal
quarter period ending with the fiscal quarter in which
any such lease, sale or other disposition occurs, do
not constitute a Substantial Portion of the Property of
the Borrower and its Subsidiaries, provided that during
the continuance of a Default or Unmatured Default, any
disposition of Collateral pursuant to this clause (v)
shall be for consideration consisting only of cash and
Cash Equivalent Investments.
6.14. Investments and Acquisitions. The Borrower will not,
nor will it permit any Subsidiary to, make or suffer to exist any
Investments (including without limitation, loans and advances to,
and other Investments in, Subsidiaries), or commitments therefor,
or to create any Subsidiary or to become or remain a partner in
any partnership or joint venture, or to make any Acquisition of
any Person, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other
Investments in existence on the date hereof and
described in Schedule 6.14.
(iii) Investments by the Borrower or any Guarantor in
Subsidiaries other than Guarantors, in addition to
Investments permitted by clause (ii) above not to
exceed in the aggregate during the term of this
Agreement the sum of (A) $15,000,000 (or equivalent in
foreign currencies) plus (B) the cumulative amount of
repayments of principal, returns of capital and
dividends received by the Borrower or any Guarantor
from Subsidiaries other than Guarantors on Investments
(including existing Investments) in such Subsidiaries.
(iv) Investments in the Borrower and in
Subsidiaries that are Guarantors, and Investments by
Subsidiaries that are not Guarantors in other
Subsidiaries that are not Guarantors.
(v) Permitted Acquisitions and Investments in joint
ventures, provided that no Default or Unmatured Default
exists before or after giving effect to such Permitted
Acquisition or such joint venture Investment.
(vi) Investments constituting Rate Management
Transactions and Financial Contracts permitted by
Section 6.25.
(vii) Other Investments not otherwise
permitted by clauses (i) through (vi) above, not
exceeding in the aggregate during the term of this
Agreement the sum of (A) $10,000,000 plus (B) the
cumulative amount of repayments of principal, returns
of capital and dividends received by the Borrower or
53
any Guarantor on Investments made pursuant to this
clause (vii).
6.15. Liens. The Borrower will not, nor will it permit any
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on
the Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges
(other than Liens imposed by the PBGC) or levies on its
Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty,
or are being contested in good faith and by appropriate
proceedings and for which adequate reserves shall have
been set aside on its books if and to the extent
required by Agreement Accounting Principles.
(ii) Liens imposed by law, such as carriers', warehousemen's
and mechanics' liens and other similar liens arising in
the ordinary course of business which secure payment of
obligations not more than 60 days past due or which are
being contested in good faith by appropriate
proceedings and for which adequate reserves shall have
been set aside on its books if and to the extent
required by Agreement Accounting Principles.
(iii) Liens arising out of pledges or deposits under worker's
compensation laws, unemployment insurance, old age
pensions, or other social security or retirement
benefits, or similar legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of
a nature generally existing with respect to properties
of a similar character and which do not in any material
way affect the marketability of the same or interfere
with the use thereof in the business of the Borrower or
its Subsidiaries.
(v) Liens granted to or for the benefit of the Agent, the
Lenders and/or the Holders of Secured Obligations
pursuant to any Loan Document or Rate Management
Transaction.
(vi) Liens on property of Foreign Subsidiaries in connection
with banker's acceptances with maturities not in excess
of 180 days.
(vii) Liens on accounts and notes receivable of Foreign
Subsidiaries securing loans and advances to Foreign
Subsidiaries permitted by Section 6.11.
(viii) Liens against equipment, property, or plant leased by
the Borrower or any Subsidiary in favor of the lessor
thereof.
(ix) Purchase money Liens to secure Indebtedness permitted
hereunder, and extensions, renewals and refinancing
thereof so long as the principal amounts thereof are
not increased.
54
(x) Liens to secure the performance of tenders, statutory
obligations, bids, leases, government contracts,
performance and surety bonds and other similar
obligations in the ordinary course of business.
(xi) Liens on documents and related property arising in
connection with trade letters of credit in the ordinary
course of business.
(xii) Liens (excluding liens permitted under clauses (i)
through (xi) above) existing on the date hereof, the
aggregate amount of liabilities secured by which does
not exceed $5,000,000. All such Liens securing
liabilities in excess of $250,000 are listed on
Schedule 6.15 hereto.
(xiii) Liens (excluding liens permitted under clauses (i)
through (xii) above) to secure obligations of the
Borrower or any Subsidiary, the principal amount of
which does not exceed $15,000,000 at any one time.
6.16. Capital Expenditures. The Borrower will not, nor will
it permit any Subsidiary to, expend, or be committed to expend, in
excess of $40,000,000 for Capital Expenditures during any one fiscal
year, commencing with fiscal year 1999, in the aggregate for the
Borrower and its Subsidiaries on a consolidated basis; provided,
however, that for each fiscal year after 1999, such aggregate
amount shall be increased by an amount (the "Carryover Amount")
that is the lesser of (i) the excess, if any, of (A) the maximum
aggregate amount of Capital Expenditures (including any Carryover
Amount) permitted pursuant to this Section 6.16 for the
immediately preceding fiscal year over (B) the aggregate amount
of actual Capital Expenditures during such preceding fiscal year
and (ii) $40,000,000. Notwithstanding the foregoing and in
addition thereto, the Borrower and its Subsidiaries may make
Capital Expenditures (1) in an amount equal to Available Net Cash
Proceeds in accordance with Section 2.7.2(a) and (2) in an amount
equal to Excess Cash Flow on a cumulative basis to the extent not
required to be applied as a mandatory prepayment pursuant to
Section 2.7.2(c).
6.17. Limitation on Negative Pledge Clauses and Payment
Restrictions Affecting Subsidiaries (a) The Borrower shall not
(and shall not suffer or permit any of its Domestic Subsidiaries to),
directly or indirectly, enter into any agreement with any Person which
prohibits or limits the ability of any of the Borrower or any of
its Domestic Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues,
whether now owned or hereafter acquired, to secure the Secured
Obligations, other than (i) the agreements evidencing or
governing Subordinated Indebtedness, (ii) Lien restrictions in a
Capitalized Lease or other purchase money financing arrangement
permitted hereunder relating to the asset financed thereunder and
(iii) purchase agreements, license agreements, leases and other
similar agreements entered into in the ordinary course of
business that prohibit a Lien on the asset or assets subject to
such agreements.
(b) The Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, assume or suffer
to exist any consensual restriction on the ability of any of its
Subsidiaries to pay dividends or make other distributions to or
on behalf of, or to pay any obligation to or on behalf of, or
55
otherwise to transfer assets or property to or on behalf of, or
make or pay loans or advances to or on behalf of, the Borrower or
any of its Subsidiaries, except
(1) restrictions imposed by the agreements and instruments
governing or evidencing the Subordinated Indebtedness,
(2) restrictions imposed by applicable law,
(3) existing restrictions under Indebtedness of any
Subsidiary outstanding on the Closing Date (after giving effect
to the PSD Acquisition),
(4) restrictions under any Acquired Indebtedness not
incurred in violation of any agreement (including any Equity
Interest) relating to any property, asset, or business acquired
by the Borrower or any of its Subsidiaries, which restrictions in
each case existed at the time of acquisition, were not put in
place in connection with or in anticipation of such acquisition
and are not applicable to any Person, other than the Person
acquired, or to any property, asset or business, other than the
property, assets and business so acquired,
(5) restrictions with respect solely to any of its
Subsidiaries imposed pursuant to a binding agreement which has
been entered into for the sale or disposition of all or
substantially all of the Equity Interests or assets of such
Subsidiary; provided, that such restrictions apply solely to the
Equity Interests or assets of such Subsidiary which are being
sold,
(6) restrictions on transfer contained in purchase money
Indebtedness; provided, that such restrictions relate only to the
transfer of the property acquired with the proceeds of such
purchase money Indebtedness,
(7) provisions with respect to the disposition or
distribution of assets or property in joint venture agreements,
asset sale agreements, stock sale agreements and other similar
agreements entered into in the ordinary course of business,
(8) restrictions on cash or other deposits or net worth
imposed by customers under contracts entered into in the ordinary
course of business,
(9) in connection with and pursuant to permitted
refinancings, replacements of restrictions imposed pursuant to
clauses (3), (4) or (6) or this clause (9) of this Section
6.17(b) that are not more restrictive taken as a whole than those
being replaced and do not apply to any other Person or assets
than those that would have been covered by the restrictions in
the Indebtedness so refinanced, and
(10) restrictions contained in Indebtedness incurred by a
Foreign Subsidiary in accordance with this Agreement; provided,
that such restrictions relate only to one or more Foreign
Subsidiaries.
Notwithstanding the foregoing, (A) customary provisions
restricting subletting or assignment of any lease entered into in
56
the ordinary course of business, consistent with industry
practice and (B) any asset subject to a Lien which is not
prohibited to exist with respect to such asset pursuant to the
terms of this Agreement may be subject to customary restrictions
on the transfer or disposition thereof pursuant to such Lien.
6.18. Year 2000. The Borrower will take and will cause each
of its Subsidiaries to take all such actions as are reasonably
necessary to successfully implement the Year 2000 Program and to
assure that Year 2000 Issues will not have a Material Adverse Effect.
At the request of the Agent, the Borrower will provide a description
of the Year 2000 Program, together with any updates or progress
reports with respect thereto.
6.19. Affiliates. The Borrower will not, and will not permit
any Subsidiary to, enter into any transaction (including, without
limitation, the purchase or sale of any Property or service) with,
or make any payment or transfer to, any Affiliate (other than the
Borrower and its Wholly-Owned Subsidiaries) except in the ordinary
course of business and pursuant to the reasonable requirements of the
Borrower's or such Subsidiary's business and upon fair and
reasonable terms no less favorable to the Borrower or such
Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arms-length transaction.
6.20. Unfunded Liabilities. Except as could not reasonably
be expected, individually or in the aggregate, to have a Material
Adverse Effect, the Borrower will not permit any Unfunded Liabilities
to exist under any Plan.
6.21. Subordinated Indebtedness. The Borrower will not,
and will not permit any Subsidiary to, make any amendment or
modification to the indenture, note or other agreement evidencing
or governing any Subordinated Indebtedness which is adverse to
the interests of the Lenders, or directly or indirectly
voluntarily prepay, defease or in substance defease, purchase,
redeem, retire or otherwise acquire, any Subordinated
Indebtedness, other than (i) in connection with the incurrence or
issuance of the Rollover Bridge Notes and/or the Exchange Notes
(as such terms are defined in the Bridge Loan Agreement) pursuant
to the Bridge Loan Agreement, (ii) the refinancing of the Bridge
Loan with proceeds of Permitted Subordinated Indebtedness or
Equity Interests issued by the Borrower and (iii) after the
issuance of Permitted Subordinated Indebtedness, the exchange of
notes evidencing such Indebtedness for notes that have terms
substantially identical in all material respects to such original
notes, except that such new notes do not contain terms with
respect to transfer restrictions. No Subordinated Indebtedness
shall bear interest required to be paid in cash at a rate in
excess of 14% per annum. The Borrower shall exercise any option
that permits it to capitalize interest on Subordinated
Indebtedness in excess of 14% per annum. The Borrower shall give
the Agent five Business Days' prior written notice of the terms
of any amendment or modification to the indenture, note or other
agreement evidencing or governing any Subordinated Indebtedness.
6.22. Required Rate Management Transactions. Subject to
the next sentence, from and after the date which is 90 days after
the Closing Date, the Borrower will maintain one or more Rate
Management Transactions with one or more financial institutions
57
acceptable to the Agent in its reasonable discretion, providing
for interest rate protection on a notional amount equal to 50%
of the aggregate outstanding amount of the Term Loans and the
Subordinated Indebtedness for a period of at least three years
from the Closing Date. It is agreed that the incurrence of the
Bridge Loan at a rate of interest capped with respect to cash
interest and/or the issuance of the Permitted Subordinated
Indebtedness at a fixed rate of interest shall be deemed to provide
such protection to the extent of the outstanding principal amount
thereof.
6.23. Sale and Leaseback Transactions. The Borrower will not,
nor will it permit any Subsidiary to, enter into or suffer to exist
any Sale and Leaseback Transaction other than Sale and Leaseback
Transactions and Synthetic Leases permitted by Section
6.11(viii).
6.24. Contingent Obligations. The Borrower will not, nor will
it permit any Subsidiary to, make or suffer to exist any Contingent
Obligation (including, without limitation, any Contingent
Obligation with respect to the obligations of a Subsidiary),
except (i) by endorsement of instruments for deposit or
collection in the ordinary course of business, (ii) guaranties of
Indebtedness permitted by Section 6.11, provided that only
Guarantors shall guarantee Subordinated Indebtedness, (iii)
guaranties by the Borrower or any Subsidiary of employee credit
card obligations in the ordinary course of business, (iv)
recourse obligations in connection with the factoring of accounts
and notes receivable of Foreign Subsidiaries, (v) guaranties and
other Contingent Obligations of the Borrower or any Subsidiary
with respect to obligations of any Subsidiary and (vi) other
Contingent Obligations not otherwise permitted by clauses (i)
through (v) above not exceeding $2,000,000 in the aggregate
outstanding at any one time.
6.25. Financial Contracts. The Borrower will not, nor will
it permit any Subsidiary to, enter into or remain liable upon any
Financial Contract, except (i) Rate Management Transactions required
under Section 6.22 and (ii) other Financial Contracts pursuant to
which the Borrower or any Subsidiary has hedged its reasonably estimated
interest rate, foreign currency or commodity exposure.
6.26. Financial Covenants.
6.26.1. Interest Coverage Ratio. The Borrower
will not permit the ratio, determined as of the end of each
of its fiscal quarters for the then most-recently ended
four fiscal quarters, of (i) Consolidated EBITDA to (ii)
Consolidated Interest Expense to be less than 3.00 to 1
for each fiscal quarter ending on or prior to June 30, 2000;
3.25 to 1 for each fiscal quarter ending after June 30, 2000
and on or prior to December 31, 2000; 3.75 to 1 for each fiscal
quarter ending after December 31, 2000 and on or prior to
December 31, 2001; and 4.00 to 1 for each fiscal quarter
ending after December 31, 2001.
6.26.2. Fixed Charge Coverage Ratio. The Borrower will
not permit the ratio, determined as of the end of each of its
fiscal quarters for the then most-recently ended four fiscal
quarters, of (i) Consolidated EBITDA minus Consolidated
Capital Expenditures to (ii) Consolidated Interest Expense,
plus (without duplication) scheduled maturities of principal
of Consolidated Funded Indebtedness during such four fiscal
58
quarter period, plus expense for taxes paid or accrued, all
calculated for the Borrower and its Subsidiaries on a
consolidated basis, to be less than 1.15 to 1 for each
fiscal quarter ending on or prior to December 31, 2000; and
1.25 to 1 for each fiscal quarter ending thereafter.
6.26.3. Leverage Ratio. The Borrower will not permit
the ratio, determined as of the end of each of its fiscal
quarters, of (i) Consolidated Funded Indebtedness to (ii)
Consolidated EBITDA for the then most-recently ended four fiscal
quarters to be greater than: 4.75 to 1 for each fiscal quarter
ending on or prior to March 31, 2000; 4.25 to 1 for each fiscal
quarter ending after March 31, 2000 and on or prior to December 31,
2000; 3.50 to 1 for each fiscal quarter ending after
December 31, 2000 and on or prior to December 31, 2001; and
3.00 to 1 for each fiscal quarter ending after December 31,
2001.
6.26.4. Senior Leverage Ratio. The Borrower will not
permit the ratio, determined as of the end of each of its
fiscal quarters, of (i) Consolidated Funded Indebtedness minus
Subordinated Indebtedness to (ii) Consolidated EBITDA for
the then most-recently ended four fiscal quarters to be
greater than 3.50 to 1 for each fiscal quarter ending on or
prior to March 31, 2000; 3.00 to 1 for each fiscal quarter
ending after March 31, 2000 and on or prior to December 31,
2000; and 2.50 to 1 for each fiscal quarter ending after
December 31, 2000.
6.26.5. Minimum Net Worth. The Borrower will at
all times maintain Consolidated Net Worth of not less than
the sum of (i) $185,000,000 plus (ii) 75% of Consolidated Net
Income earned in each fiscal quarter beginning with the quarter
ending December 31, 1999 (without deduction for losses) plus (iii)
the amount of any addition to the consolidated stockholders'
equity of the Borrower and its Subsidiaries at any time
resulting from the issuance or sale of any Equity Interests
by the Borrower after the date of this Agreement.
6.26.6. Pro Forma Calculation. In the event that the
Borrower or any Subsidiary shall have consummated a Permitted
Acquisition or Investment in a joint venture during any four
fiscal quarter period for which any financial covenant contained
in this Section 6.26 is calculated, such financial covenant
shall be calculated as if such Permitted Acquisition or Investment
(including any Indebtedness incurred in connection
therewith) had been consummated on the first day of such
four fiscal quarter period, provided that the Borrower shall
not include such Permitted Acquisition or Investment in the
calculation of Consolidated EBITDA, unless the Borrower
shall have delivered to the Lenders, at or prior to the time
financial statements as of the last day of such four fiscal
quarter period are delivered to the Lenders pursuant to
Section 6.1, audited financial statements of the acquired
business or Person or joint venture, as the case may be,
stated in Dollars and presented in conformity with U.S.
generally accepted accounting principles, and covering the
period from the first day of such four fiscal quarter period
to the actual date of the consummation of such Permitted
Acquisition.
6.27. Fiscal Year. The Borrower shall not, and shall not
permit any Subsidiary to, change the fiscal year of the Borrower
or any Subsidiary.
59
6.28. Guarantors; Pledges of Stock of Foreign Subsidiaries.
(a) If at any time on or after the Closing Date, any one or more
Domestic Subsidiaries shall constitute a Material Domestic Subsidiary,
the Borrower shall promptly notify the Agent thereof, which notice
shall specify the date as of which such Domestic Subsidiary or
Subsidiaries became a Material Domestic Subsidiary. (Each reference
hereafter in this Section 6.28 to a Material Domestic Subsidiary
shall mean each Subsidiary constituting such Material Domestic
Subsidiary.) Within 90 days after the date specified in such notice,
the Borrower shall (i) cause such Material Domestic Subsidiary to
execute and deliver to the Agent a Guaranty and such Collateral
Documents with respect to substantially all of the Property of
such Material Domestic Subsidiary as the Agent shall reasonably
request (all such Collateral Documents to be substantially similar
to corresponding Collateral Documents executed by the Borrower and
otherwise in form and substance reasonably satisfactory to the
Agent) and (ii) pledge to the Agent, for the benefit of the Holders
of Secured Obligations, all of the Equity Interests of such Material
Domestic Subsidiary held by the Borrower, in each case together
with such supporting documentation, including authorizing
resolutions and/or opinions of counsel, as the Agent may
reasonably request. Notwithstanding the foregoing (A) if the
Borrower acquires a Material Domestic Subsidiary pursuant to a
Permitted Acquisition, the Borrower may, as an alternative to
complying with the preceding sentence, within 90 days after the
consummation of such Permitted Acquisition, cause such Material
Domestic Subsidiary to merge into, or to transfer all or
substantially all of its assets to, the Borrower or a Guarantor,
and (B) the Borrower shall comply with the preceding sentence or,
in the alternative, the preceding clause (A), with respect to
Sanofi Diagnostics Pasteur, Inc. and Genetic Systems within 180
days after the Closing Date.
(b) If at any time on or after the Closing Date, any
Foreign Subsidiary, the Equity Interests of which are held by the
Borrower and/or any Guarantor, shall have net assets (at book
value) of $10,000,000 (or the equivalent in any foreign currency)
or more, within 90 days after the Agent shall so request, the
Borrower shall, or shall cause such Guarantor to, pledge 65% of
such Equity Interests to the Agent, for the benefit of Holders of
Secured Obligations, pursuant to a pledge agreement, together
with an opinion of counsel from the jurisdiction of organization
of such Foreign Subsidiary (which may be the Borrower's or such
Foreign Subsidiary's internal counsel, if qualified in such
jurisdiction), in each case in form and substance reasonably
satisfactory to the Agent.
6.29. Future Liens on Real Property. The Borrower shall,
and shall cause each Guarantor to, execute and deliver to the Agent,
within 30 days after its acquisition or leasing of any real property
with a fair market value of $1,000,000 or more after the Closing
Date, a mortgage, deed of trust, collateral assignment or other
appropriate instrument evidencing a Lien upon any such acquired
property, lease or interest, to be in form and substance
reasonably acceptable to the Agent and subject only to such Liens
as otherwise shall be permitted by this Agreement, and if
requested by the Agent a title insurance policy insuring the
Agent's interest therein. The foregoing provision shall not
apply to (a) real property acquired with purchase money financing
otherwise permitted hereunder, until such purchase money
financing has been repaid and the purchase money lien released,
(b) Synthetic Leases and Sale and Leaseback Transactions
otherwise permitted hereunder or (c) then-existing leases assumed
or acquired pursuant to a Permitted Acquisition; and the
foregoing provision shall apply to the leasing of any real
property only if (i) the term of such lease (without regard to
60
any extension thereof at then current market rent) is more than
five years, (ii) such real property consists of an operating
plant or (iii) such lease has a material value by reason of a
purchase option, below-market rent or otherwise.
6.30. Surveys of Mortgaged Property. Within 60 days after
the Closing Date, the Borrower shall deliver to the Agent ALTA
surveys covering each parcel of owned real property with respect
to which the Borrower is delivering a mortgage or deed of trust
on the Closing Date. Such surveys shall be sufficient to enable the
title insurance company to delete the survey exception from each
title insurance policy delivered to the Agent on the Closing Date
without reflecting as a result of such survey any exception that
materially impairs the Borrower's ownership of such property or
the Borrower's use of such property for its intended purpose.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events
shall constitute a Default:
7.1. Any representation or warranty made or deemed made
by or on behalf of the Borrower or any of its Subsidiaries to the
Lenders or the Agent under or in connection with this Agreement,
any Loan, any Letter of Credit or any certificate or information
delivered in connection with this Agreement or any other Loan
Document shall be materially false on the date as of which made.
7.2. Nonpayment of principal of any Loan or
Reimbursement Obligation when due, or nonpayment of interest upon
any Loan or of any commitment fee or other obligations under any
of the Loan Documents within five days after the same becomes
due.
7.3. The breach by the Borrower of any of the terms or
provisions of Section 6.2, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15,
6.16, 6.17, 6.19, 6.21, 6.23, 6.24, 6.25, 6.26, 6.27, 6.28 or
6.30; or the breach by the Borrower of any of the terms and
conditions of Section 6.1, 6.3, 6.6, 6.9 or 6.29 which is not
remedied within ten days.
7.4. The breach by the Borrower (other than a breach
which constitutes a Default under another Section of this Article
VII) of any of the terms or provisions of this Agreement or any
other Loan Document which is not remedied within thirty days
after written notice from the Agent or the Required Lenders.
7.5. (i) Failure of the Borrower or any of its
Subsidiaries to pay when due any Indebtedness (other than
Indebtedness owing by the Borrower to any Subsidiary or by any
Subsidiary to the Borrower or another Subsidiary and other than
Rate Management Obligations) outstanding in a principal amount
aggregating in excess of $5,000,000 ("Material Indebtedness"); or
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the default by the Borrower or any of its Subsidiaries in the
performance (beyond the applicable grace period with respect
thereto, if any) of any term, provision or condition contained in
any agreement under which any such Material Indebtedness was
created or is governed, or any other event shall occur or
condition exist, the effect of which default or event is to
cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due
prior to its stated maturity; or any Material Indebtedness of the
Borrower or any of its Subsidiaries then outstanding in a
principal amount in excess of $2,500,000 shall be declared to be
due and payable or required to be prepaid or repurchased (other
than by a regularly scheduled payment and other than in
connection with the refinancing of the Bridge Loan with the
proceeds of Permitted Subordinated Indebtedness) prior to the
stated maturity thereof; or the Borrower or any of its
Subsidiaries shall not pay, or shall admit in writing its
inability to pay, its debts generally as they become due; or (ii)
the occurrence of an early termination under any Rate Management
Transaction resulting from (A) any event of default under such
Rate Management Transaction as to which the Borrower or any
Subsidiary is the defaulting party or (B) any termination event
as to which the Borrower or any Subsidiary is an affected party
and, in either event, the termination value or other similar
obligation owed by the Borrower or such Subsidiary as a result
thereof is in excess of $5,000,000 and remains unpaid.
7.6. The Borrower or any of its Material Subsidiaries
shall (i) have an order for relief entered with respect to it
under the Federal bankruptcy laws as now or hereafter in effect,
(ii) make an assignment for the benefit of creditors, (iii) apply
for, seek, consent to, or acquiesce in, the appointment of a
receiver, custodian, trustee, examiner, liquidator or similar
official for it or any Substantial Portion of its Property, (iv)
institute any proceeding seeking an order for relief under the
Federal bankruptcy laws as now or hereafter in effect or seeking
to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment
or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors or
fail to file (by the deadline for such filing) an answer or other
pleading denying the material allegations of any such proceeding
filed against it, (v) take any corporate or partnership action to
authorize or effect any of the foregoing actions set forth in
this Section 7.6 or (vi) fail to contest in good faith and in a
reasonably timely manner any appointment or proceeding described
in Section 7.7.
7.7. Without the application, approval or consent of
the Borrower or any of its Material Subsidiaries, a receiver,
trustee, examiner, liquidator or similar official shall be
appointed for the Borrower or any of its Material Subsidiaries or
any Substantial Portion of its Property, or a proceeding
described in Section 7.6(iv) shall be instituted against the
Borrower or any of its Material Subsidiaries and in each case
such appointment continues undischarged or such proceeding
continues undismissed or unstayed for a period of 60 consecutive
days.
7.8. Any court, government or governmental agency shall
condemn, seize or otherwise appropriate, or take custody or
control of, all or any portion of the Property of the Borrower
and its Subsidiaries which, when taken together with all other
Property of the Borrower and its Subsidiaries so condemned,
seized, appropriated, or taken custody or control of, during the
twelve-month period ending with the month in which any such
action occurs, constitutes a Substantial Portion.
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7.9. The Borrower or any of its Subsidiaries shall fail
within 30 days to pay, bond or otherwise discharge one or more
(i) judgments or orders for the payment of money (except to the
extent covered by insurance as to which the insurer has not
disclaimed coverage) in excess of $5,000,000 (or the equivalent
thereof in currencies other than Dollars) in the aggregate, or
(ii) nonmonetary judgments or orders which, individually or in
the aggregate, could reasonably be expected to have a Material
Adverse Effect, which judgment(s), in any such case, is/are not
stayed on appeal or otherwise being appropriately contested in
good faith in a reasonably timely manner.
7.10. The Borrower or any other member of the Controlled
Group shall have been notified by the sponsor of a Multiemployer
Plan that it has incurred withdrawal liability to such
Multiemployer Plan in an amount which, when aggregated with all
other amounts required to be paid to Multiemployer Plans by the
Borrower or any other member of the Controlled Group as
withdrawal liability (determined as of the date of such
notification), could reasonably be expected to have a Material
Adverse Effect.
7.11. The Borrower or any other member of the Controlled
Group shall have been notified by the sponsor of a Multiemployer
Plan that such Multiemployer Plan is in reorganization or is
being terminated, within the meaning of Title IV of ERISA, if as
a result of such reorganization or termination the aggregate
annual contributions of the Borrower and the other members of the
Controlled Group (taken as a whole) to all Multiemployer Plans
which are then in reorganization or being terminated have been or
will be increased over the amounts contributed to such
Multiemployer Plans for the respective plan years of each such
Multiemployer Plan immediately preceding the plan year in which
the reorganization or termination occurs by an amount which
could reasonably be expected to have a Material Adverse Effect.
7.12. The Borrower or any of its Subsidiaries shall (i) be
the subject of any order by any Governmental Authority or any
judicial determination of liability pertaining to the release by
the Borrower, any of its Subsidiaries or any other Person of any
toxic or hazardous waste or substance into the environment, or
(ii) violate any Environmental Law, which, in the case of an
event described in clause (i) or clause (ii), could reasonably be
expected to have a Material Adverse Effect, taking into account
amounts to be paid by third parties.
7.13. Any Change in Control shall occur.
7.14. Any Collateral Document shall fail to remain in full
force or effect or any action shall be taken by the Borrower or
any of its Subsidiaries to discontinue or to assert the
invalidity or unenforceability of any Collateral Document.
7.15. Any Guarantor shall take any action to revoke or
discontinue or to assert the invalidity or unenforceability of
any Guaranty, or any Guarantor shall deny that is has any further
liability under any Guaranty to which it is a party, or shall
give notice to such effect.
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ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. If any Default described in Section 7.6
or 7.7 occurs with respect to the Borrower, the obligations of the
Lenders to make Loans and the obligation of the Issuing Lender to
issue Letters of Credit hereunder shall automatically terminate and
the Obligations shall immediately become due and payable without
any election or action on the part of the Agent, the Issuing Lender
or any Lender. If any other Default occurs, the Required Lenders
(or the Agent with the consent of the Required Lenders) may terminate
or suspend the obligations of the Lenders to make Loans and the
obligation of the Issuing Lender to issue Letters of Credit hereunder,
or declare the Obligations to be due and payable, or both, whereupon
the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which
the Borrower hereby expressly waives.
If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to
make Loans and the obligation of the Issuing Lender to issue
Letters of Credit hereunder as a result of any Default (other
than any Default as described in Section 7.6 or 7.7 with respect
to the Borrower) and before any judgment or decree for the
payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so
direct, the Agent shall, by notice to the Borrower, rescind and
annul such acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this Article
VIII, the Required Lenders (or the Agent with the consent in writing
of the Required Lenders) and the Borrower may enter into agreements
supplemental hereto for the purpose of adding or modifying any
provisions to the Loan Documents or changing in any manner the rights
of the Lenders or the Borrower hereunder or waiving any Default
hereunder; provided, however, that no such supplemental agreement or
waiver shall, without the consent of each Lender affected thereby:
(i) Extend the final maturity of any Loan or postpone any
regularly scheduled payment of principal of any Loan,
postpone the date fixed for any payment of
Reimbursement Obligations, forgive all or any portion
of the principal amount of any Loan or Reimbursement
Obligation, or reduce the rate or extend the time of
payment of interest or fees hereunder.
(ii) Reduce the percentage specified in the definition of
Required Lenders or amend the definition of Pro Rata
Share.
(iii) Extend the Facility Termination Date or reduce the
amount or extend the payment date for, the mandatory
payments required under Section 2.2, or increase the
amount of the Aggregate Commitment or of the Commitment
of any Lender hereunder, or reduce the Aggregate
Commitment other than ratably among the Lenders having
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Commitments, or permit the Borrower to assign its
rights under this Agreement.
(iv) Amend this Section 8.2.
(v) Release any Guarantor, except in connection with a
disposition of Equity Interests of a Guarantor
otherwise permitted by the Loan Documents, or, except
as provided in the Loan Documents, release all or
substantially all of the Collateral.
No amendment of any provision of this Agreement relating to the
Agent shall be effective without the written consent of the
Agent. The Agent may waive payment of the fee required under
Section 12.3.2 without obtaining the consent of any other party
to this Agreement. No amendment of any provision of this
Agreement relating to the Issuing Lender shall be effective
without the written consent of the Issuing Lender.
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8.3. Preservation of Rights. No delay or omission of the
Lenders, the Issuing Lender or the Agent to exercise any right
under the Loan Documents shall impair such right or be construed
to be a waiver of any Default or an acquiescence therein, and the
making of a Loan or the issuance of a Letter of Credit notwithstanding
the existence of a Default or the inability of the Borrower to
satisfy the conditions precedent to such Loan or issuance of such
Letter of Credit shall not constitute any waiver or acquiescence.
Any single or partial exercise of any such right shall not
preclude other or further exercise thereof or the exercise of any
other right, and no waiver, amendment or other variation of the
terms, conditions or provisions of the Loan Documents whatsoever
shall be valid unless in writing signed by the Lenders required
pursuant to Section 8.2, and then only to the extent in such
writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all
shall be available to the Agent, the Issuing Lender and the
Lenders until the Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations
and warranties of the Borrower contained in this Agreement shall
survive the making of the Loans herein contemplated.
9.2. Governmental Regulation. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be
obligated to extend credit to the Borrower, and the Issuing Lender
shall not be obligated to issue any Letter of Credit for the account
of the Borrower, in violation of any limitation or prohibition provided
by any applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for
convenience of reference only, and shall not govern the interpretation
of any of the provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agent and the Lenders
and supersede all prior agreements and understandings among the Borrower,
the Agent and the Lenders relating to the subject matter thereof other
than the fee letter described in Section 10.13.
9.5. Several Obligations; Benefits of this Agreement.
The respective obligations of the Lenders hereunder are several
and not joint and no Lender shall be the partner or agent of any
other (except to the extent to which the Agent is authorized to
act as such). The failure of any Lender to perform any of its
obligations hereunder shall not relieve any other Lender from any
of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person
other than the parties to this Agreement and their respective
successors and assigns, provided, however, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits
of the provisions of Sections 9.6, 9.10 and 10.11 to the extent
specifically set forth therein and shall have the right to
enforce such provisions on its own behalf and in its own name to
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the same extent as if it were a party to this Agreement.
9.6. Expenses; Indemnification. (i) The Borrower shall
reimburse the Agent and the Arranger for any reasonable
out-of-pocket expenses (including reasonable fees and expenses
of attorneys for the Agent) paid or incurred by the Agent or the
Arranger in connection with the preparation, negotiation, execution,
delivery, syndication, review, amendment, modification, and
administration of the Loan Documents. The Borrower also agrees
to reimburse the Agent, the Issuing Lender and the Lenders for
any reasonable out-of-pocket expenses (including reasonable fees,
time charges and expenses of attorneys for the Agent, the Issuing
Lender and the Lenders, which attorneys may be employees of the
Agent) paid or incurred by the Agent, the Issuing Lender or any
Lender in connection with the collection and enforcement of the
Loan Documents.
(ii) The Borrower hereby further agrees to indemnify the
Agent, the Arranger, the Issuing Lender, each Lender, their
respective affiliates, and each of their directors, officers and
employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor
whether or not the Agent, the Arranger, the Issuing Lender, any
Lender or any of their respective affiliates is a party thereto)
which any of them may pay or incur arising out of or relating to
any litigation, investigation, claims or proceedings which arise
out of or are related to this Agreement, the other Loan
Documents, the transactions contemplated hereby, the direct or
indirect application or proposed application of the proceeds of
any Loan hereunder, or the issuance of any Letter of Credit
hereunder or the direct or indirect application or proposed
application of the proceeds of any drawing thereunder, except to
the extent that they are determined in a final non-appealable
judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the party
seeking indemnification or any affiliate of such party. The
obligations of the Borrower under this Section 9.6 shall survive
the termination of this Agreement.
9.7. Numbers of Documents. All statements, notices,
closing documents, and requests hereunder shall be furnished to
the Agent with sufficient counterparts so that the Agent may
furnish one to each of the Lenders.
9.8. Accounting. Except as provided to the contrary herein,
all accounting terms used herein shall be interpreted and all
accounting determinations hereunder shall be made in accordance
with Agreement Accounting Principles.
9.9. Severability of Provisions. Any provision in any
Loan Document that is held to be inoperative, unenforceable, or
invalid in any jurisdiction shall, as to that jurisdiction, be
inoperative, unenforceable, or invalid without affecting the
remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan
Documents are declared to be severable.
9.10. Nonliability of Lenders. The relationship between
the Borrower on the one hand and the Lenders, the Issuing Lender
and the Agent on the other hand shall be solely that of borrower
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and lender. Neither the Agent, the Arranger, the Issuing Lender
nor any Lender shall have any fiduciary responsibilities to the
Borrower. Neither the Agent, the Arranger, the Issuing Lender
nor any Lender undertakes any responsibility to the Borrower to
review or inform the Borrower of any matter in connection with
any phase of the Borrower's business or operations. The Borrower
agrees that neither the Agent, the Arranger, the Issuing Lender
nor any Lender shall have liability to the Borrower (whether sounding
in tort, contract or otherwise) for losses suffered by the Borrower
in connection with, arising out of, or in any way related to, the
transactions contemplated and the relationship established by the
Loan Documents, or any act, omission or event occurring in
connection therewith, unless it is determined in a final non-
appealable judgment by a court of competent jurisdiction that
such losses resulted from the gross negligence or willful
misconduct of the party from which recovery is sought or any
affiliate of such party. Neither the Agent, the Arranger, the
Issuing Lender nor any Lender shall have any liability with
respect to, and the Borrower hereby waives, releases and agrees
not to xxx for, any special, indirect or consequential damages
suffered by the Borrower in connection with, arising out of, or
in any way related to the Loan Documents or the transactions
contemplated thereby.
9.11. Confidentiality. Each Lender agrees to hold any
confidential information which it may receive from the Borrower
pursuant to this Agreement in confidence, except for disclosure
(i) to its Affiliates (that are not competitors of the Borrower or
any Subsidiary in any of their respective lines of business) and
to other Lenders and their respective Affiliates (that are not
competitors of the Borrower or any Subsidiary in any of their
respective lines of business), (ii) to legal counsel, accountants,
and other professional advisors to such Lender or to a Transferee,
(iii) as may be required or appropriate, to regulatory officials,
(iv) to any Person as requested pursuant to or as required by law,
regulation, or legal process, (v) as may be required or
appropriate, to any Person in connection with any legal
proceeding to which such Lender is a party, (vi) to such Lender's
direct or indirect contractual counterparties in swap agreements
or to legal counsel, accountants and other professional advisors
to such counterparties, and (vii) permitted by Section 12.4.
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9.12. Disclosure. The Borrower and each Lender hereby
acknowledge and agree that one or more affiliates of Bank One are or
may become direct or indirect equity investors in the Borrower, and
each Lender hereby waives any liability of Bank One or such affiliate
to such Lender arising out of or resulting from such investments or
relationships, other than liabilities arising out of the gross
negligence or willful misconduct of Bank One or its affiliates.
9.13. Performance of Obligations. The Borrower agrees
that, after the occurrence and during the continuance of a
Default, the Agent may, but shall have no obligation to, (i) at
any time, pay or discharge taxes, liens, security interests or
other encumbrances levied or placed on or threatened against any
Collateral (other than any of the foregoing which is permitted
hereunder) and (ii) make any other payment or perform any act
required of the Borrower under any Loan Document or take any
other action which the Agent in its discretion deems necessary or
desirable to protect or preserve the Collateral, including,
without limitation, any action to (y) effect any repairs or
obtain any insurance called for by the terms of any of the Loan
Documents and to pay all or any part of the premiums therefor and
the costs thereof and (z) pay any rents payable by the Borrower
which are more than 30 days past due, or as to which the landlord
has given notice of termination, under any lease. The Agent
shall use its reasonable efforts to give the Borrower five (5)
Business Days' notice of any action taken under this Section 9.13
prior to the taking of such action; provided that the failure to
give such notice shall not affect the Borrower's obligations in
respect thereof. The Borrower agrees to pay the Agent, promptly
after receipt of a reasonably detailed invoice therefor, the
principal amount of all funds advanced by the Agent under this
Section 9.13, together with interest thereon at the rate from
time to time applicable to Floating Rate Loans from the date of
such advance until the outstanding principal balance thereof is
paid in full. If the Borrower fails to make payment in respect
of any such advance under this Section 9.13 within one (1)
Business Day after the date the Borrower receives written demand
therefor from the Agent, the Agent shall promptly notify each
Lender and each Lender agrees that it shall thereupon make
available to the Agent, in immediately available funds, the
amount equal to such Lender's Pro Rata Share of such advance. If
such funds are not made available to the Agent by such Lender
within one (1) Business Day after the Agent's demand therefor,
the Agent will be entitled to recover any such amount from such
Lender together with interest thereon at the Federal Funds
Effective Rate for each day during the period commencing on the
date of such demand and ending on the date such amount is
received. The failure of any Lender to make available to the
Agent its Pro Rata Share of any such unreimbursed advance under
this Section 9.13 shall neither relieve any other Lender of its
obligation hereunder to make available to the Agent such other
Lender's Pro Rata Share of such advance on the date such payment
is to be made nor increase the obligation of any other Lender to
make such payment to the Agent. All outstanding principal of,
and interest on, advances made under this Section 9.13 shall
constitute Obligations secured by the Collateral until paid in
full by the Borrower.
9.14. Waiver of Notice. The Lenders party hereto that are
lenders party to the Existing Credit Agreement hereby (i) waive the
requirement of Section 2.5 of the Existing Credit Agreement that
the Borrower give the agent thereunder ten business days' written
notice of Termination in whole of the lenders' commitments thereunder
and (ii) consent to such notice being given prior to 10:00 a.m.
(Chicago time) on the effective date of such termination.
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ARTICLE X
THE AGENT
10.1. Appointment; Nature of Relationship. Bank One, NA,
having its principal office in Chicago, Illinois is hereby appointed
by each of the Lenders (including the Issuing Lender, and each reference
in this Article X to a Lender shall include the Issuing Lender) as its
contractual representative (herein referred to as the "Agent")
hereunder and under each other Loan Document, and each of the
Lenders irrevocably authorizes the Agent to act as the
contractual representative of such Lender with the rights and
duties expressly set forth herein and in the other Loan
Documents. The Agent agrees to act as such contractual
representative upon the express conditions contained in this
Article X. Notwithstanding the use of the defined term "Agent,"
it is expressly understood and agreed that the Agent shall not
have any fiduciary responsibilities to any Lender by reason of
this Agreement or any other Loan Document and that the Agent is
merely acting as the contractual representative of the Lenders
with only those duties as are expressly set forth in this
Agreement and the other Loan Documents. In its capacity as the
Lenders' contractual representative, the Agent (i) does not
hereby assume any fiduciary duties to any of the Lenders, (ii) is
a "representative" of the Lenders within the meaning of Section
9-105 of the Uniform Commercial Code and (iii) is acting as an
independent contractor, the rights and duties of which are
limited to those expressly set forth in this Agreement and the
other Loan Documents. Each of the Lenders hereby agrees to
assert no claim against the Agent on any agency theory or any
other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
10.2. Powers. The Agent shall have and may exercise such
powers under the Loan Documents as are specifically delegated to the
Agent by the terms of each thereof, together with such powers as are
reasonably incidental thereto. The Agent shall have no implied duties
to the Lenders, or any obligation to the Lenders to take any action
thereunder except any action specifically provided by the Loan Documents
to be taken by the Agent.
10.3. General Immunity. Neither the Agent nor any of its
directors, officers, agents or employees shall be liable to the Borrower,
the Lenders or any Lender for any action taken or omitted to be taken by
it or them hereunder or under any other Loan Document or in
connection herewith or therewith except to the extent such action
or inaction is determined in a final non-appealable judgment by a
court of competent jurisdiction to have arisen from the gross
negligence or willful misconduct of such Person or any affiliate
of such Person.
10.4. No Responsibility for Loans, Recitals, etc. Neither
the Agent nor any of its directors, officers, agents or employees
shall be responsible for or have any duty to ascertain, inquire into,
or verify (a) any statement, warranty or representation made in
connection with any Loan Document or any borrowing hereunder; (b) the
performance or observance of any of the covenants or agreements of any
obligor under any Loan Document, including, without limitation, any
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agreement by an obligor to furnish information directly to each Lender;
(c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agent;
(d) the existence or possible existence of any Default or Unmatured
Default; (e) the validity, enforceability, effectiveness, sufficiency
or genuineness of any Loan Document or any other instrument or writing
furnished in connection therewith; (f) the value, sufficiency, creation,
perfection or priority of any Lien in any collateral security; or (g)
the financial condition of the Borrower or any guarantor of any of
the Obligations or of any of the Borrower's or any such guarantor's
respective Subsidiaries. The Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the
Borrower to the Agent at such time, but is voluntarily furnished by
the Borrower to the Agent (either in its capacity as Agent or in its
individual capacity).
10.5. Action on Instructions of Lenders. The Agent shall
in all cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in accordance
with written instructions signed by the Required Lenders or all
of the Lenders, as applicable, and such instructions and any
action taken or failure to act pursuant thereto shall be binding
on all of the Lenders. The Lenders hereby acknowledge that the
Agent shall be under no duty to take any discretionary action
permitted to be taken by it pursuant to the provisions of this
Agreement or any other Loan Document unless it shall be requested
in writing to do so by the Required Lenders or all of the
Lenders, as applicable. Agent shall be fully justified in
failing or refusing to take any action hereunder and under any
other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking
or continuing to take any such action.
10.6. Employment of Agents and Counsel. The Agent may
execute any of its duties as Agent hereunder and under any other
Loan Document by or through employees, agents, and
attorneys-in-fact and shall not be answerable to the Lenders,
except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Agent
shall be entitled to advice of counsel concerning the contractual
arrangement between the Agent and the Lenders and all matters
pertaining to the Agent's duties hereunder and under any other
Loan Document.
10.7. Reliance on Documents; Counsel. The Agent shall be
entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document
believed by it to be genuine and correct and to have been signed
or sent by the proper person or persons, and, in respect to legal
matters, upon the opinion of counsel selected by the Agent, which
counsel may be employees of the Agent.
10.8. Agent's Reimbursement and Indemnification. The
Lenders agree to reimburse and indemnify the Agent ratably in
proportion to their respective Commitments (or, if the
Commitments have been terminated, in proportion to their
Commitments immediately prior to such termination) (i) for any
amounts not reimbursed by the Borrower for which the Agent is
entitled to reimbursement by the Borrower under the Loan
Documents, (ii) for any other expenses incurred by the Agent on
behalf of the Lenders, in connection with the preparation,
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execution, delivery, administration and enforcement of the Loan
Documents (including, without limitation, for any expenses
incurred by the Agent in connection with any dispute between the
Agent and any Lender or between two or more of the Lenders) and
(iii) for any liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of the Loan Documents or any other
document delivered in connection therewith or the transactions
contemplated thereby (including, without limitation, for any such
amounts incurred by or asserted against the Agent in connection
with any dispute between the Agent and any Lender or between two
or more of the Lenders), or the enforcement of any of the terms
of the Loan Documents or of any such other documents, provided
that (i) no Lender shall be liable for any of the foregoing to
the extent any of the foregoing is found in a final non-
appealable judgment by a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the
Agent and (ii) any indemnification required pursuant to Section
3.5(vii) shall, notwithstanding the provisions of this Section
10.8, be paid by the relevant Lender in accordance with the
provisions thereof. The obligations of the Lenders under this
Section 10.8 shall survive payment of the Obligations and
termination of this Agreement.
10.9. Notice of Default. The Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Unmatured
Default hereunder unless the Agent has received written notice from a
Lender or the Borrower referring to this Agreement describing such
Default or Unmatured Default and stating that such notice is a "notice of
default". In the event that the Agent receives such a notice,
the Agent shall give prompt notice thereof to the Lenders.
10.10. Rights as a Lender. In the event the Agent is a Lender,
the Agent shall have the same rights and powers hereunder and under any
other Loan Document with respect to its Commitment and its Loans
as any Lender and may exercise the same as though it were not the
Agent, and the term "Lender" or "Lenders" shall, at any time when
the Agent is a Lender, unless the context otherwise indicates,
include the Agent in its individual capacity. The Agent and its
affiliates may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction,
in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrower or any of its Subsidiaries in
which the Borrower or such Subsidiary is not restricted hereby
from engaging with any other Person. The Agent, in its
individual capacity, is not obligated to remain a Lender.
10.11. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent,
the Arranger or any other Lender and based on the financial statements
prepared by the Borrower and such other documents and information
as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will,
independently and without reliance upon the Agent, the Arranger
or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12. Successor Agent. The Agent may resign at any time by
giving written notice thereof to the Lenders and the Borrower, such
72
resignation to be effective upon the appointment of a successor Agent
or, if no successor Agent has been appointed, forty-five days after the
retiring Agent gives notice of its intention to resign. The
Agent may be removed at any time with or without cause by written
notice received by the Agent from the Required Lenders, such
removal to be effective upon the appointment of a successor Agent
as set forth herein. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint, on behalf of
the Lenders, a successor Agent. If no successor Agent shall have
been so appointed by the Required Lenders within thirty days
after the resigning Agent's giving notice of its intention to
resign, then the resigning Agent may appoint, on behalf of the
Lenders, a successor Agent. Any appointment of a successor Agent
shall be subject to the Borrower's consent, which shall not be
unreasonably withheld or delayed, provided that such consent
shall not be required at any time that a Default shall have
occurred and be continuing. Notwithstanding the foregoing, the
Agent may at any time without the consent of the Borrower or any
Lender, appoint any of its Affiliates which is a commercial bank
as a successor Agent hereunder. No successor Agent shall be
deemed to be appointed hereunder until such successor Agent has
accepted the appointment. Any such successor Agent shall be a
commercial bank having capital and retained earnings of at least
$500,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the resigning or removed Agent.
Upon the effectiveness of the resignation or removal of the
Agent, the resigning or removed Agent shall be discharged from
its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation or removal
of an Agent, the provisions of this Article X shall continue in
effect for the benefit of such Agent in respect of any actions
taken or omitted to be taken by it while it was acting as the
Agent hereunder and under the other Loan Documents. In the event
that there is a successor to the Agent by merger, or the Agent
assigns its duties and obligations to an Affiliate pursuant to
this Section 10.12, then the term "Corporate Base Rate" as used
in this Agreement shall mean the prime rate, base rate or other
analogous rate of the new Agent.
10.13. Agent's Fee. The Borrower agrees to pay to the Agent,
for its own account, the fees agreed to by the Borrower and the
Agent pursuant to that certain letter agreement dated July 2, 1999,
or as otherwise agreed from time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders
agree that the Agent may delegate any of its duties under this Agreement
to any of its Affiliates. Any such Affiliate (and such Affiliate's
directors, officers, agents and employees) which performs duties
in connection with this Agreement shall be entitled to the same
benefits of the indemnification, waiver and other protective
provisions to which the Agent is entitled under Articles IX and X.
10.15. Execution of Collateral Documents. The Lenders hereby
empower and authorize the Agent to execute and deliver to the Borrower
on their behalf the
Collateral Documents and any financing statements, agreements,
documents or instruments as shall be necessary or appropriate to
effect the purposes of the Collateral Documents.
10.16. Collateral Releases. The Lenders hereby empower and
authorize the Agent to execute and deliver to the Borrower on their
73
behalf any agreements, documents or instruments as shall be necessary
or appropriate to effect any releases of Collateral or of any
Guarantor which shall be permitted by the terms hereof or of any
other Loan Document or which shall otherwise have been approved
by the Required Lenders (or, if required by the terms of Section
8.2, all of the Lenders) in writing.
10.17. Co-Agents, etc. Neither the Syndication Agent nor
the Documentation Agent nor any Co-Agent shall have any right, power,
obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting
the foregoing, none of such Lenders shall have or be deemed to have a
fiduciary relationship with any Lender. Each Lender hereby makes
the same acknowledgments with respect to such Lenders as it makes
with respect to the Agent in Section 10.11.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition o, and without limitation of,
any rights of the Lenders or the Issuing Lender under applicable law,
if the Borrower becomes insolvent, however evidenced, or any Default
occurs, any and all deposits (including all account balances, whether
provisional or final and whether or not collected or available, other
than trust accounts) and any other Indebtedness at any time held or
owing by any Lender or the Issuing Lender or any Affiliate of any
Lender or the Issuing Lender to or for the credit or account of the
Borrower may be offset and applied toward the payment of the
Obligations owing to such Lender or the Issuing Lender, whether
or not the Obligations, or any part hereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Loans (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater
proportion than that received by any other Lender, such Lender agrees,
promptly upon demand, to purchase a portion of the Loans held by the
other Lenders so that after such purchase each Lender will hold its
ratable proportion of Loans. If any Lender, whether in
connection with setoff or amounts which might be subject to
setoff or otherwise, receives collateral or other protection for
its Obligations or such amounts which may be subject to setoff,
such Lender agrees, promptly upon demand, to take such action
necessary such that all Lenders share in the benefits of such
collateral ratably in proportion to their Loans. In case any
such payment is disturbed by legal process, or otherwise,
appropriate further adjustments shall be made.
11.3. Application of Payments. So long as a Default shall
have occurred and be continuing, or if the Borrower shall otherwise
fail to direct the application of payments hereunder, the Agent
shall, unless otherwise specified at the direction of the Required
Lenders, which direction shall be consistent with the last sentence of
74
this Section 11.3, apply all payments and prepayments (other than
prepayments pursuant to Section 2.7.1) in respect of any
Obligations and all proceeds of Collateral in the following order:
(A) first, to pay interest on and then principal of
any portion of the Loans which the Agent may have advanced
on behalf of any Lender for which the Agent has not then
been reimbursed by such Lender or the Borrower;
(B) second, to pay interest on and then principal of
any advance made under Section 9.13 for which the Agent has
not then been paid by the Borrower or reimbursed by the
Lenders;
(C) third, to pay Obligations in respect of any fees,
expenses, reimbursements or indemnities then due to the
Agent;
(D) fourth, to pay Obligations in respect of any fees,
expenses, reimbursements or indemnities then due to the
Lenders and the Issuing Lender;
(E) fifth, to pay interest due in respect of the Loans
and Reimbursement Obligations;
(F) sixth, to the ratable payment or prepayment of
principal outstanding on Loans, Reimbursement Obligations
and Rate Management Obligations in such order as the Agent
may determine in its sole discretion; and
(G) seventh, to the ratable payment of all other
Obligations.
Unless otherwise designated (which designation shall only be
applicable prior to the occurrence of a Default) by the Borrower,
all principal payments in respect of Loans shall be applied
first, to the outstanding Revolving Loans, and second, to the
outstanding Term Loans, in each case, first, to repay outstanding
Floating Rate Loans, and then to repay outstanding Eurocurrency
Rate Loans with those Eurocurrency Rate Loans which have earlier
expiring Interest Periods being repaid prior to those which have
later expiring Interest Periods. The order of priority set forth
in this Section 11.3 and the related provisions of this Agreement
are set forth solely to determine the rights and priorities of
the Agent, the Lenders and other Holders of Secured Obligations
as among themselves. The order of priority set forth in clauses
(D) through (G) of this Section 11.3 may at any time and from
time to time be changed by the Required Lenders without necessity
of notice to or consent of or approval by the Borrower, or any
other Person. The order of priority set forth in clauses (A)
through (C) of this Section 11.3 may be changed only with the
prior written consent of the Agent.
11.4. Relations Among Lenders.
Except with respect to the exercise of set-off rights of any
Lender in accordance with Section 11.1, the proceeds of which are
applied in accordance with this Agreement, and except as set
forth in the following sentence, each Lender agrees that it will
75
not take any action, nor institute any actions or proceedings,
against the Borrower or any other obligor hereunder or with
respect to any Collateral or Loan Document, without the prior
written consent of the Required Lenders or, as may be provided in
this Agreement or the other Loan Documents, at the direction of
the Agent. Notwithstanding the foregoing, and subject to Section
11.2, any Lender shall have the right to enforce on an unsecured
basis the payment of the principal of and interest on any Loan
made by it after the date such principal or interest has become
due and payable pursuant to the terms of this Agreement.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns. The terms and provisions
of the Loan Documents shall be binding upon and inure to the benefit
of the Borrower, the Agent, the Issuing Lender and the Lenders and
their respective successors and assigns, except that (i) the Borrower
shall not have the right to assign its rights or obligations
under the Loan Documents, (ii) any assignment by any Lender must
be made in compliance with Section 12.3 and (iii) any assignment
or delegation of duties by the Agent shall be made only in
compliance with Article X. The parties to this Agreement
acknowledge that clause (ii) of this Section 12.1 relates only to
absolute assignments and does not prohibit assignments creating
security interests, including, without limitation, any pledge or
assignment by any Lender of all or any portion of its rights
under this Agreement and any Note to a Federal Reserve Bank;
provided, however, that no such pledge or assignment creating a
security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have
complied with the provisions of Section 12.3. The Agent may
treat the Person which made any Loan or which holds any Note as
the owner thereof for all purposes hereof unless and until such
Person complies with Section 12.3; provided, however, that the
Agent may in its discretion (but shall not be required to) follow
instructions from the Person which made any Loan or which holds
any Note to direct payments relating to such Loan or Note to
another Person. Any assignee of the rights to any Loan or any
Note agrees by acceptance of such assignment to be bound by all
the terms and provisions of the Loan Documents. Any request,
authority or consent of any Person, who at the time of making
such request or giving such authority or consent is the owner of
the rights to any Loan (whether or not a Note has been issued in
evidence thereof), shall be conclusive and binding on any
subsequent holder or assignee of the rights to such Loan.
12.2. Participations.
12.2.1. Permitted Participants; Effect. Any Lender
may, in the ordinary course of its business and in accordance
with applicable law, at any time sell to one or more banks or
other entities that are not competitors of the Borrower or
any Subsidiary in any of their respective lines of business
("Participants") participating interests in any Loan owing
to such Lender, any Note held by such Lender, any Commitment
of such Lender, any L/C Interest of such Lender or any other
interest of such Lender under the Loan Documents. In the
76
event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under
the Loan Documents shall remain unchanged, such Lender shall
remain solely responsible to the other parties hereto for
the performance of such obligations, such Lender shall
remain the owner of its Loans and L/C Interests and the
holder of any Note issued to it in evidence thereof for all
purposes under the Loan Documents, all amounts payable by
the Borrower under this Agreement shall be determined as if
such Lender had not sold such participating interests, and
the Borrower and the Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole
right to approve, without the consent of any Participant, any
amendment, modification or waiver of any provision of the Loan
Documents other than any amendment, modification or waiver
with respect to any Loan, L/C Interest or Commitment in
which such Participant has an interest which forgives
principal, interest or fees or reduces the interest rate or
fees payable with respect to any such Loan, L/C Interest or
Commitment, extends the Facility Termination Date, postpones
any date fixed for any regularly-scheduled payment of
principal of, or interest or fees on, any such Loan, L/C
Interest or Commitment, releases any guarantor of any such
Loan or Reimbursement Obligation or releases all or
substantially all of the collateral, if any, securing any
such Loan or Reimbursement Obligation.
12.2.3. Benefit of Setoff. The Borrower agrees that
each Participant shall be deemed to have the right of setoff
provided in Section 11.1 in respect of its participating
interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest
were owing directly to it as a Lender under the Loan Documents,
provided that each Lender shall retain the right of setoff
provided in Section 11.1 with respect to the amount of
participating interests sold to each Participant. The
Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in
Section 11.1, agrees to share with each Lender, any amount
received pursuant to the exercise of its right of setoff,
such amounts to be shared in accordance with Section 11.2 as
if each Participant were a Lender.
12.3. Assignments.
12.3.1. Permitted Assignments. Any Lender or the
Issuing Lender may, in the ordinary course of its business and
in accordance with applicable law, at any time assign to one or
more banks or other entities that are not competitors of the
Borrower or any Subsidiary in any of their respective lines of
business ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. Each assignment shall
be of a constant, and not a varying, ratable percentage of
all of the assigning Lender's rights and obligations under
this Agreement. Such assignment shall be substantially in
the form of Exhibit B or in such other form as may be agreed
to by the parties thereto. The consent of the Agent and, so
long as no Default exists, the consent of the Borrower shall
be required prior to an assignment becoming effective with
respect to a Purchaser which is not a Lender or an affiliate
77
thereof. Such consent shall not be unreasonably withheld or
delayed. Each such assignment with respect to a Purchaser
which is not a Lender or an affiliate thereof shall (unless
the Agent otherwise consents) be in an amount not less than
the lesser of (i) $5,000,000 or (ii) the remaining amount of
the assigning Lender's Commitment and outstanding Term Loans
(calculated as at the date of such assignment) or its
outstanding Loans and L/C Interests (if the applicable
Commitment has been terminated).
12.3.2. Effect; Effective Date. Upon (i) delivery
to the Agent of an assignment, together with any consents required
by Section 12.3.1, and (ii) payment of a $3,500 fee to the Agent
for processing such assignment (unless such fee is waived by the
Agent), such assignment shall become effective on the
effective date specified in such assignment. The assignment
shall contain a representation by the Purchaser to the
effect that none of the consideration used to make the
purchase of the Commitment, Loans and L/C Interests under
the applicable assignment agreement constitutes "plan
assets" as defined under ERISA and that the rights and
interests of the Purchaser in and under the Loan Documents
will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for
all purposes be a Lender party to this Agreement and any
other Loan Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it were
an original party hereto, and no further consent or action
by the Borrower, the Lenders or the Agent shall be required
to release the transferor Lender with respect to the
percentage of the Aggregate Commitment, Loans and L/C
Interests assigned to such Purchaser. Upon the consummation
of any assignment to a Purchaser pursuant to this Section
12.3.2, the transferor Lender, the Agent and the Borrower
shall, if the transferor Lender or the Purchaser desires
that its Loans be evidenced by Notes, make appropriate
arrangements so that new Notes or, as appropriate,
replacement Notes are issued to such transferor Lender and
new Notes or, as appropriate, replacement Notes, are issued
to such Purchaser, in each case in principal amounts
reflecting their respective Commitments and Term Loans, as
adjusted pursuant to such assignment.
12.4. Dissemination of Information. The Borrower authorizes
each Lender to disclose to any Participant or Purchaser or any other
Person acquiring an interest in the Loan Documents by operation of
law (each a "Transferee") and any prospective Transferee any and all
information in such Lender's possession concerning the creditworthiness
of the Borrower and its Subsidiaries, including without limitation any
information contained in any Reports; provided that each Transferee and
prospective Transferee agrees to be bound by Section 9.11 of this
Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the
transferor Lender shall cause such Transferee, concurrently with the
effectiveness of such transfer, to comply with the provisions of
Section 3.5(iv).
78
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.14
with respect to borrowing notices, all notices, requests and other
communications to any party hereunder shall be in writing (including
electronic transmission, facsimile transmission or similar writing) and
shall be given to such party: (x) in the case of the Borrower or
the Agent, at its address or facsimile number set forth on the
signature pages hereof, (y) in the case of any Lender, at its
address or facsimile number set forth below its signature hereto
or (z) in the case of any party, at such other address or
facsimile number as such party may hereafter specify for the
purpose by notice to the Agent and the Borrower in accordance
with the provisions of this Section 13.1. Each such notice,
request or other communication shall be effective (i) if given by
facsimile transmission, when transmitted to the facsimile number
specified in this Section and confirmation of receipt is
received, (ii) if given by mail, seven days after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid, or (iii) if given by any other
means, when delivered (or, in the case of electronic
transmission, received) at the address specified in this Section;
provided that notices to the Agent under Article II shall not be
effective until received.
13.2. Change of Address. The Borrower, the Agent and any
Lender may each change the address for service of notice upon it
by a notice in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one
agreement, and any of the parties hereto may execute this
Agreement by signing any such counterpart. This Agreement shall
be effective when it has been executed by the Borrower, the Agent
and the Lenders and each party has notified the Agent by
facsimile transmission or telephone that it has taken such
action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT
79
LIMITATION, 735 ILCS SECTION 105/5-1 ET SEQ, BUT OTHERWISE WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS,
BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL
OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS
AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW
OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST THE BORROWER IN
THE COURTS OF ANY OTHER JURISDICTION.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENT AND
EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED
THEREUNDER.
80
IN WITNESS WHEREOF, the Borrower, the Lenders and the Agent
have executed this Agreement as of the date first above written.
BIO-RAD LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: 0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
(with a copy to the General
Counsel)
Telephone: (000) 000-0000
FAX: (000) 000-0000
Commitments
$15,000,000 BANK ONE, NA,
Individually as a Lender, as an Issuing
Lender and as Agent
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Sr. Vice President
Address: 000 Xxxxx Xxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000)000-0000
FAX: (000)000-0000
$12,500,000 ABN AMRO BANK N.V.,
Individually as a Lender and as Syndication
Agent
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Group Vice President
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
$12,500,000 UNION BANK OF CALIFORNIA, N.A.,
Individually as a Lender and as
Documentation Agent
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Address: 0000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx x. xxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
$8,750,000 THE BANK OF NOVA SCOTIA,
Individually as a Lender and as Co-Agent
By: /s/ X. X. Xxxxxxxx
Name: X.X. Xxxxxxxx
Title: Relationship Manager
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
$8,750,000 BANQUE NATIONALE DE PARIS,
Individually as a Lender and as Co-Agent
By: /s/ Xxxxxxxxx Xxxxx
Name: Xxxxxxxxx Xxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Assistant Vice President
Address: 000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
$8,750,000 COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.
"RABOBANK INTERNATIONAL", NEW
YORK BRANCH,
Individually as a Lender and as Co-Agent
By: /s/ Michiel V.M. Van der Voort
Name: Michiel V.M. Van der Woort
Title: Vice President
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
Address: 0 Xxxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
$8,750,000 XXXXX FARGO BANK,
Individually as a Lender and as Co-Agent
By: /s/ Xxxxx X. O'Melveny
Name: Xxxxx X. O'Melveny
Title: V. P.
Address: Xxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxx O'Melveny
Telephone: (000)000-0000
Facsimile: (000)000-0000
$5,000,000 COMERICA BANK-CALIFORNIA
By: /s/ R. Xxxxxxx Xxx
Name: R. Xxxxxxx Xxx
Title: Vice President
Address: 000 Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Attention: R. Xxxxxxx Xxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
$5,000,000 CREDIT LYONNAIS NEW YORK
BRANCH
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
Address: 000 Xxxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
$5,000,000 LLOYDS TSB BANK PLC
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Assistant Director
By: /s/ Xxxx Xxxxxxxxx
Name: Xxxx Xxxxxxxxx
Title: Director
Address: 000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
$5,000,000 U.S. BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
Address: 0000 X. Xxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
$5,000,000 THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxxxxxx Xxxxxxxx
Name: Xxxxxxxxxx Xxxxxxxx
Title: Vice President
Address: 00 Xxxxx XxXxxxx Xxxxxx
Xxxxx XX00
Xxxxxxx, XX 00000
Attention: Xxxxxxxxxx Xxxxxxxx
Telephone: (000)000-0000
Facsimile: (000)000-0000
LIST OF EXHIBITS & SCHEDULES TO THE CREDIT AGREEMENT
Reference in
the Credit
Agreement Description of the exhibit or the Schedule
Exhibit A Compliance Certificate
Exhibit B Form of Assignment Agreement
Exhibit C-1 Form of Term Note
Exhibit C-2 Form of Revolving Note
Pricing Schedule
Sched. 2.4 Existing Letters of Credit
Sched. 4.1 List of Closing Documents
Sched. 5.4 Pro Forma Financial Statements
Sched. 5.7 Litigation
Sched. 5.8 Subsidiaries
Sched. 5.22 Insurance
Sched. 6.11 Indebtedness
Sched. 6.14 Investments
Sched. 6.15 Liens
