BORROWER PARTY JOINDER AGREEMENT
Exhibit
10.4
THIS
BORROWER PARTY JOINDER AGREEMENT (this "Agreement") is made as of May 6,
2005,
among Theragenics Corporation, a Delaware corporation, (the "Original
Borrower"), C.P. Medical Corporation, an Oregon corporation (the "Additional
Borrower") and Wachovia Bank, National Association, successor by merger to
SouthTrust Bank (the "Bank");
W
I T N E
S S E T H
WHEREAS,
the Bank and the Original Borrower are parties to that certain Credit Agreement
dated as of October 29,2003 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"; unless otherwise defined
herein, all capitalized terms shall have the meanings given in the Credit
Agreement), providing, subject to the terms and conditions thereof, for
extensions of credit to be made by the Bank to the Original
Borrower;
WHEREAS,
the Original Borrower has agreed to purchase all of the issued and outstanding
capital stock of the Additional Borrower and, as result thereof, the Original
Borrower and the Additional Borrower are required by the terms of the Credit
Agreement to execute this Agreement in order for the Additional Borrower
to
become a party to the Credit Agreement; and
WHEREAS,
in consideration of the Bank's commitment to make the credit facilities under
the Credit Agreement available to the Original Borrower and the Additional
Borrower, and in consideration of the support that the Original Borrower
has
provided and may in the future provide to the Additional Borrower, each of
the
parties hereto is willing to execute and deliver this Agreement to provide
for
the Additional Borrower to become a "Borrower" under the Credit Agreement
and to
amend certain provisions of the Credit Agreement;
NOW,
THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereto agree as follows:
SECTION
1. Amendments to the Credit Agreement. (a) Section 1.1 of the Credit
Agreement is hereby amended as set forth below:
(i)
The
definition of the term "Asset Disposition" is hereby amended and restated
in its entirety and replaced as set forth below:
"Asset
Disposition" means any sale, assignment, lease transfer or other disposition
of any assets, business units or other properties (including any interests
in
property or securities), excluding (i) sales of inventory in the Ordinary
Course
of Business, (ii) any intercompany sale, assignment, transfer or other
disposition of any assets between Borrower and any other Borrower, and (iii)
the
sale or exchange of used, obsolete, worn out or surplus equipment to the
extent
(x) the proceeds of such sale are applied towards, or such equipment is
exchanged for, similar replacement equipment, or (y) such equipment is no
longer
useful for the operations in the Ordinary Course of Business.
(ii)
The
definition of the term "Borrower" is hereby amended and restated in its
entirety and replaced as set forth below:
"Borrower"
means, individually and collectively, Theragenics Corporation, a Delaware
corporation, and C.P. Medical Corporation, an Oregon corporation, jointly
and
severally.
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(iii)
The
following new definition is added to Section 1.1 of the Credit Agreement
in its
appropriate alphabetical order:
"Borrowing
Agent" has the meaning ascribed to such term in Section 2.8.
(iv)
The
definition of "Material Adverse Effect" is hereby amended and restated in
its entirety as set forth below:
"Material
Adverse Effect" means a material adverse effect on (a) the business,
condition (financial or otherwise), operations, performance, properties or
prospects of the Borrower and the other Borrower Parties, taken as a whole,
(b)
the ability of the Borrower and the other Borrower Parties to perform their
Obligations under any Loan Document to which they are or are to be a party,
or
(c) the priority of any Lien of Bank relating to a material part of the
Collateral as provided under the terms of any Security Document.
(v)
The
definition of "Note" is
hereby
amended and restated in its entirety as set forth below:
"Note"
means,
individually and collectively, (i) each Line of Credit Note from each Borrower
issued to the Bank in the principal amount of $40,000,000.00,
provided that the issuance of separate Line of Credit Notes from each Borrower
shall not be deemed to increase the Loan Amount or the Loan Commitment in
excess
of $40,000,000.00 in the aggregate; and (ii) and includes any amendment to
or
modification or restatement of such Line of Credit Notes and any other
promissory note given in extension or renewal of, or in substitution for,
such
Line of Credit Notes.
(vi)
The
definition of the term "Permitted Indebtedness" is hereby amended by
deleting the word "and" at the end of clause (E) thereof, by re-designating
clause (F) thereof as clause (G), and by inserting the following new clause
(F)
immediately preceding such clause (G):
(F)
Intercompany Indebtedness from any Borrower to another Borrower, and vice
versa.
(vii)
The
definition of the term "Permitted Investment" is hereby amended by
deleting the word "and" at the end of clause (G) thereof, by re-designating
clauses (H)and
(I)
thereof as clauses (I) and (J), respectively, and by inserting the following
new
clause (H)
immediately preceding such clause (I):
(H)
Investments by any Borrower to another Borrower, and vice versa.
(viii)
The definition of the terms "Solvent" and "Solvency" is hereby
amended by adding the following parenthetical immediately after the word
"that"
in the first line thereof "(after giving effect to any rights of contribution,
reimbursement or indemnification to which such Person may be entitled by
contract or otherwise)".
(b)
The Credit Agreement is hereby further amended as follows:
(i)
the
term
"Revolving Loan Maturity Date" used in the definition of "Advancement
Termination Date" is amended to read "Maturity Date".
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(ii)
Section 6.1 of the Credit Agreement is hereby amended and restated in its
entirety as set forth below:
6.1.
Borrowers' Existence. Each Borrower is a corporation duly organized,
existing and in good standing under the laws of the Jurisdiction of its
incorporation, is duly qualified and in good standing as a foreign corporation
in each Jurisdiction where the nature of its business or the ownership of
its
properties requires it to be so qualified, and has full corporate power and
authority to consummate the transactions contemplated by this
Agreement.
(iii)
Section 7.1(C) of the Credit Agreement is hereby amended by replacing the
word
"Party" in clause (4) thereof with the word "Borrower".
(iv)
Section 7.2(C) of the Credit Agreement is hereby amended and restated in
its
entirety and replaced as set forth below:
(C)
Asset Dispositions. Borrower will not make any Asset Disposition other
than Permitted Transfers of Assets.
(v)
The
phrase "in an amount $250,000 in the aggregate" in Section 7.2(F) is amended
to
read "in
an
amount
not exceeding $250,000 in the aggregate".
(vi)
The
brackets contained in Section 9.1(B) are deleted without affecting the remainder
of the text that is inside and outside of such deleted brackets.
(vii)
References to financial statements to be delivered under the terms of Section
7.l(c) shall refer to such financial statements on a consolidated basis and,
upon request by the Bank, Borrower agrees to provide any such unaudited
financial statements on a consolidating basis.
(viii)
Financial covenants under the terms of Section 7.3(A) shall be calculated
on a
consolidated basis.
(c)
The
Credit Agreement is hereby further amended by adding the following new Sections
2.8, 2.9, 2.10, 2.11, 2.12 and 2.13 at the end of Article II:
2.8
Multiple
Borrowers; Borrowing Agent. All covenants and indemnities of any Borrower
set forth in the Loan Documents shall be joint and several obligations of
all
Borrowers. All representations and warranties of Borrower shall be deemed
representations and warranties made by each Borrower, unless the context
expressly provides otherwise. Each Borrower hereby irrevocably appoints
Theragenics Corporation as borrowing agent for each Borrower ("Borrowing
Agent"), and Borrowing Agent shall act under this Agreement as the agent
and
representative of itself and each other Borrower for all purposes under this
Agreement, including requesting borrowings, selecting whether any Loan or
portion thereof is to bear interest as a Base Rate borrowing
or a LIBOR Rate Borrowing, and receiving account statements and other notices
and communications
to any Borrower from Bank. No notice to a Borrower shall be effective
unless the
same
is given (or a copy thereof is given) to the Borrowing Agent. Bank may rely,
and
shall be
fully
protected in relying, on any notice or request for any Loan or Letter of
Credit, disbursement
instructions, reports, information or any other notice or communication made
or given
by
Borrowing Agent, whether in its own name, on behalf of any individual Borrower
or on behalf
of
each Borrower, and Bank shall have no obligation to make any inquiry or request
any confirmation
from or on behalf of any other Borrower as to the binding effect on such
Borrower
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of
any
such request, instruction, report, information, notice or communication,
nor
shall the joint and
several character of each Borrower's liability for the Obligations be
affected.
2.9
All
Loans Constitute One Obligation; Joint and Several Liability. The Loans
and all
other
Obligations shall constitute one general obligation of each Borrower, jointly
and severally,
on a combined basis and shall be secured by Bank's Lien (if any) upon all
of
the Collateral
(subject to the limitations in Section 8.1(C)). Each Borrower has requested
that
Bank make
available the Loans and Letters of Credit to each Borrower to finance their
mutual and collective
enterprises. In order to utilize the financial powers of each Borrower on
a
combined basis
and
in the most efficient and economical manner, and in order to facilitate the
financing of each
Borrower's needs, Bank will make Loans to, and issue Letters of Credit on
behalf
of, each Borrower
on a combined basis and in accordance with the provisions herein set forth.
The businesses
of each Borrower are a mutual and collective enterprise, and each Borrower
believes that
the
consolidation of all Obligations under this Agreement will enhance the
aggregate borrowing
powers of each Borrower and ease the administration of their credit relationship
with Bank,
all
to the mutual advantage of each Borrower. Bank's willingness to extend credit
to
each Borrower
and to administer the Collateral therefor, on a combined basis as more fully
set
forth in this
Agreement, is done solely as an accommodation to each Borrower and at their
request in furtherance
of their mutual and collective enterprise. Each Borrower shall be liable
for, on
a joint and
several basis, and hereby guarantees the timely payment by each Borrower
of, all
of the Loans
and
other Obligations, regardless of which Borrower actually may have received
the proceeds
of any Loan or the benefit of any Letter of Credit hereunder or the amount
of
such Loans
received or the manner in which Bank accounts for such Loans or Letters of
Credit on its books
and
records, it being acknowledged and agreed that Loans to, or Letters of Credit
issued on behalf
of, any Borrower inure to the mutual benefit of each Borrower and that Bank
is
relying on the
joint
and several liability of each Borrower in extending the Loans and issuing
Letters of Credit
hereunder. Each Borrower hereby unconditionally and irrevocably agrees that
upon default
in the payment when due (whether at stated maturity, by acceleration or
otherwise) of any principal
of, or interest owed on, any of the Loans or other Obligations, such Borrower
shall forthwith
pay the same, without notice or demand, if such default is not cured within
any applicable
grace period.
2.10
Unconditional Nature of Liability. Each Borrower's joint and several
liability hereunder
with respect to, and guaranty of, the Loans and other Obligations shall,
to the
fullest extent
permitted by applicable law, be unconditional, irrespective of (i) the
validity, enforceability,
avoidance or subordination of any of the Obligations or of any promissory
note
or other
document evidencing all or any part of the Obligations, (ii) the absence
of any
attempt to collect
any of the Obligations from any other obligor or any Collateral or other
security therefor, or
the
absence of any other action to enforce the same, (iii) the waiver, consent,
extension, forbearance,
granting of any indulgence or departure from any Loan Document provision
by Bank
with
respect to any of the Obligations or any instrument or agreement evidencing
or securing
the payment of any of the Obligations, or any other agreement now or hereafter
executed by
any
other Borrowers and delivered to Bank, (iv)
the
failure by Bank to take any steps to perfect
or maintain the perfected status of any security interest in or Lien upon,
or to
preserve its rights
to,
any
of
the Collateral or other security for the payment or performance of any of
the Obligations,
or Bank's release or exchange of any Collateral or of its Liens upon any
Collateral, (v)
Bank's election, in any proceeding instituted under the Bankruptcy Code,
for the
application of
Section 111l(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of
a
security interest by
any
other Borrower, as debtor-in-possession under Section 364 of the Bankruptcy
Code, (vii) the
release or compromise, in whole or in part, of the liability of any Borrower,
any guarantor, any
surety or any other obligor for the payment of any of the Obligations, (viii)
any amendment
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or
modification of any of the Loan Documents or waiver of any Default or Event
of
Default thereunder
(but subject to the terms of such amendment, modification or waiver), (ix)
any increase
in the amount of the Obligations beyond any limits imposed herein or in the
amount of any
interest, fees or other charges payable in connection therewith, or any decrease
in the same, (x)
the
disallowance of all or any portion of Bank's claims against another Borrower
for
the repayment
of any of the Obligations under Section 502 of the Bankruptcy Code, or (xi)
any
other circumstance
that might constitute a legal or equitable discharge or defense of any Borrower,
any guarantor,
any surety or any other obligor as
a
result
of their status as
a
guarantor, surety or other obligor
under law or equity. At any time an Event of Default exists, Bank may proceed
directly and
at
once, without notice to any Borrower, any guarantor, any surety or any other
obligor, against
any Borrower, any guarantor, any surety or any other obligor to collect and
recover all or any
part
of the Obligations, without first proceeding against any other Borrower,
guarantor, surety or
other
obligor or against any Collateral or other security for the payment or
performance of any of
the
Obligations, and each Borrower waives any provision that might otherwise
require
any Bank
under applicable law to pursue or exhaust its remedies against any Collateral
or
any Borrower,
any guarantor, any surety or any other obligor before pursuing such Borrower,
such guarantor,
such surety or such other obligor. Each Borrower consents and agrees that
Bank
shall be
under
no obligation to marshal any assets in favor of any Borrower, any guarantor,
any
surety or
any
other obligor or against or in payment of any or all of the
Obligations.
2.11
No Reduction in Liability for Obligations. No payment or payments made by
a Borrower,
guarantor, surety or other obligor or received or collected by Bank from
a
Borrower or any
other
Person by virtue of any action or proceeding or any setoff or appropriation
or application
at any time or from time to time in reduction of or in payment of the
Obligations shall be
deemed
to modify, reduce, release or otherwise affect the liability of any Borrower,
guarantor, surety
or
other obligor under this Agreement or any Loan Document, each of which shall
remain jointly
and severally liable for the payment and performance of all outstanding Loans
and other Obligations
until the Obligation are paid in full, the Loan Commitment is terminated
and
all Letters
of Credit have terminated, or Bank has been provided with either cash collateral
or a back-up
letter of credit as provided in Section 2.13 hereof.
2.12
Subordination. Each Borrower hereby subordinates any claims, including
any right
of
payment, subrogation, contribution and indemnity, that it may have from or
against any Borrower,
any guarantor, any surety or any other obligor, and any successor or assignee
of
any other
Borrower, any guarantor, any surety or other obligor, including any trustee,
receiver or debtor-in-possession,
howsoever arising, due or owing or whether heretofore, now or
hereafter existing,
to the payment in full of all of the Obligations; provided, however, that
any
Borrower may
make
payments to another Borrower (a) for goods and services and (b) so long as
no
Event of
Default is in existence at such time or after giving effect thereto, as
repayments of Permitted Investments
made by the payee in the payor.
2.13
Termination of Loan Commitment. Upon at least ten (10) Business Days
prior written
notice to Bank, Borrower (acting through Borrowing Agent) may, at its option,
terminate this
Agreement and the Loan Commitment in its entirety, but not partially; provided
however, no such
termination by Borrower shall be effective until the full, final and
indefeasible payment of the
Obligations in cash or immediately available funds and in the case of any
Obligations consisting
of contingent obligations, Bank's receipt of either cash or a direct pay
letter
of credit naming
Bank as beneficiary and in form and substance and from an issuing bank
acceptable to Bank,
in
each case in an amount not less than 105% of the aggregate amount of all
such
contingent
obligations.
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SECTION
2.
Joinder of
Additional Borrower as a Borrower under the Credit Agreement.
The Additional
Borrower hereby becomes a party to the Credit Agreement and agrees to become
obligated and
liable as a Borrower under and as defined in the Credit Agreement for the
payment and performance of
all of
the Obligations and agrees that each of the representations, warranties,
covenants, waivers and each
of
the other terms and provisions of the Credit Agreement (as amended hereby)
shall
be the valid and
binding obligations of the Additional Borrower as if the Additional Borrower
had
executed and delivered
the same on the date of the Credit Agreement (except that representations
and
warranties of Additional
Borrower shall be deemed initially made as of the effective date of this
Agreement), the Credit Agreement
being incorporated herein by reference. In furtherance thereof, the Additional
Borrower hereby
restates in part, and confirms that it is bound by the provisions of, Section
8.1(A) of the Credit Agreement.
Effective as of the occurrence of any Trigger Event and upon the giving of
a
Trigger Event Notice,
and without any other action being required by any Person, as security for
the
prompt satisfaction of
all
Obligations, the Additional Borrower hereby assigns, transfers and sets over
to
Bank all of the Additional
Borrower's Interest in and to, and grants Bank a Lien on, upon and in the
Collateral, all upon the
terms
and subject to the conditions and limitations set forth in the Credit
Agreement.
SECTION
3.
Notices.
All notices, requests and other communications to any party
hereunder or
under
the Credit Agreement shall be given or made in accordance with the provisions
of
Section 11.1 of
the
Credit Agreement and the address for the Additional Borrower for such notices
under Section 11.1 shall
be
its address provided under its signature below.
SECTION
4.
Conditions
Precedent. This Agreement shall (a) become effective upon the occurrence
of each of the following: (i) execution and delivery to the Bank of (1) this
Agreement by each party
hereto and a $40,000,000 Line of Credit Note by the Additional Borrower
substantially in the form executed
and delivered by the Original Borrower at the Closing, (2) a Borrower's Closing
Certificate from
the
Additional Borrower, (3)
a
certificate of an officer of the Additional Borrower certifying as
to the
incumbency and signatures of such officer of the Additional Borrower signing,
as
applicable, this Agreement
and any other Loan Documents executed on the date hereof, (4) a written opinion
of counsel to
the
Additional Borrower, dated as of the date of this Agreement and addressed
to
Bank, in form and substance
acceptable to Bank with respect to this Agreement and the consummation of
the
transactions (the
"Stock Purchase") contemplated by the Stock Purchase Agreement (defined below);
and (ii) delivery to
the
Bank of (1) a copy of the resolutions of the Additional Borrower's board
of
directors authorizing the
execution, delivery and performance of this Agreement, the Line of Credit
Note,
and any other Loan Document
executed by the Additional Borrower on the date hereof, (2) a copy, certified
as
of the most recent
date practicable by the secretary of state (or similar Governmental Authority)
of the state, province, or
other
Jurisdiction where the Additional Borrower is organized, of the Additional
Borrower's Organizational
Documents filed with such secretary of state (or similar Governmental
Authority), (3)
a copy
of
the Additional Borrower's other Organizational Documents, (4) a certificate,
as
of the most recent date
practicable, of the secretary of state (or similar appropriate Governmental
Authority) and department of
revenue or taxation (or similar appropriate Governmental Authority) of each
Jurisdiction in which the Additional
Borrower is organized as to the existence and good standing of the Additional
Borrower within
such Jurisdiction (unless such Governmental authorities do not issue such
certificates of existence and/or
good standing), and a certificate, as of the most recent date practicable,
of
the secretary of state (or similar
appropriate Governmental Authority) of each state where any of the Collateral
is
located as to the qualification
and good standing of the Additional Borrower as a foreign entity doing business
in each such
state (unless such Governmental Authorities do not issue such certificates
of
existence and/or good standing),
(5) lien search reports showing no Liens, except for the Permitted Liens,
against the assets of, or
the
stock issued by, the Additional Borrower, (6) evidence satisfactory to Bank
that
the Additional Borrower
has obtained all insurance policies as required under the Credit Agreement,
together with evidence
satisfactory to Bank that all premiums therefor have been paid and that all
such
policies are in full
force and effect, (7) an executed copy of the Stock Purchase Agreement (and
all
exhibits, schedules
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and
amendments thereto) between the Original Borrower and the owners of the capital
stock of the Additional
Borrower (the "Stock Purchase Agreement"), and (8) receipt and approval by
Bank
of any other
items reasonably required to be provided to Bank, and not otherwise set forth
above, and (b) after becoming
effective, be deemed to be executed and delivered simultaneously with the
consummation of the
Stock
Purchase.
SECTION
5.
Exhibits and
Schedules to the Credit Agreement; Representations and Warranties;
Ratification and Confirmation of Loan Documents. (a) The form of Compliance
Certificate attached
as Exhibit A to the Credit Agreement is amended and restated as set forth
on
Exhibit A
to
this Agreement.
(b)
The Schedules to the Credit Agreement are amended and restated as set forth
on Exhibit
B
attached to this Agreement after giving effect to the Stock Purchase and
the
terms of this Agreement.
(c)
The Original Borrower represents and warrants to Bank that all representations
and warranties
given by the Original Borrower in the Credit Agreement, as amended, are true
and
correct as of
the
date hereof in all material respects. The Original Borrower represents and
warrants to Bank that the
Original Borrower is in full compliance with all of the covenants
of the
Original Borrower contained in
the
Credit Agreement.
(d)
The Additional Borrower represents and warrants to Bank that all representations
and warranties
given by the Additional Borrower in the Credit Agreement, as amended, are
true
and correct as of
the
date hereof in all material respects. The Additional Borrower represents
and
warrants to Bank that the
Additional Borrower is in full compliance with all of the covenants of the
Additional Borrower contained
in the Credit Agreement.
(e)
Except as heretofore or herein expressly modified, or as may otherwise be
inconsistent with the terms of this Agreement (in which case the terms
and
conditions of this Agreement shall govern), all terms of the Credit Agreement,
as amended, and all documents and instruments executed and delivered in
furtherance thereof shall be and remain in full force and effect, and the
same
are hereby ratified and confirmed in all respects. Borrower agrees
to pay
directly, or reimburse Bank for, all expenses, including the fees and expenses
of legal counsel actually incurred by Bank in connection with the preparation
of
the documentation to evidence this Agreement.
SECTION 6. Miscellaneous.
(a) This Agreement is entered into and performable in ▇▇▇▇▇▇ County,
Georgia, and the substantive Laws, without giving effect to principles
of
conflict of laws, of the United States and the State of Georgia shall govern
the
construction of this Agreement and the documents executed and delivered pursuant
hereto, and the rights and remedies of the parties hereto and thereto, except
to
the extent that the Uniform Commercial Code or other applicable Law
requires that the perfection, the effect of perfection or non-perfection,
the
priority of Bank's Lien (if any) under the Loan Documents, or the
enforcement of certain of Bank's remedies with respect to the Collateral,
be
governed by the Laws of another Jurisdiction.
(b)
If
any provision of this Agreement shall be held invalid under any applicable
Laws,
such invalidity
shall not affect any other provision of this Agreement or such other instrument
or agreement that
can
be given effect without the invalid provision, and, to this end, the provisions
hereof are severable.
(c)
This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original, but
all
of which together shall constitute but one and the same instrument.
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IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly
executed,
under seal, by its authorized officer as of the day and year first above
written.
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ADDITIONAL
BORROWER:
C.P.
MEDICAL CORPORATION
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
Address:
C/O
Theragenics Corporation
▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Chief Financial Officer
Facsimile
# (▇▇▇) ▇▇▇-▇▇▇▇
ORIGINAL
BORROWER:
THERAGENICS
CORPORATION
By:
/s/ M. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name: M. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
BANK:
WACHOVIA
BANK, NATIONAL
ASSOCIATION,
successor by merger to SouthTrust
Bank
By:__________________________
Name:
Title:
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