Exhibit 10.14
CREDIT AGREEMENT
dated as of November 12, 1996
among
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION,
MUREX DIAGNOSTICS INTERNATIONAL, INC., IMTC HOLDINGS, INC.,
MUREX DIAGNOSTICS CORPORATION, IMTC HOLDINGS (UK) LIMITED,
MUREX DIAGNOSTICS, INC. AND MUREX BIOTECH LIMITED,
as Borrowers,
BANK OF AMERICA ILLINOIS AND
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, ACTING THROUGH ITS LONDON BRANCH,
as Issuing Banks,
BANK OF AMERICA, F.S.B.,
as Agent and a Lender
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I.
DEFINITIONS . . . . . . . . . . . . . . 1
1.1 Certain Defined Terms . . . . . . . . . . . . . . . . 1
ARTICLE II.
THE LOANS . . . . . . . . . . . . . . 31
2.1 Amounts and Terms of Commitments . . . . . . . . . . 31
2.2 Loan Accounts . . . . . . . . . . . . . . . . . . . . 32
2.3 Manner of Borrowing and Disbursement. . . . . . . . . 32
2.4 Conversion and Continuation Elections . . . . . . . . 33
2.5 Utilization of Offshore Currency Commitments . . . . 35
2.6 Voluntary Termination or Reduction of
Commitments . . . . . . . . . . . . . . . . . . . . . 35
2.7 Optional Prepayments . . . . . . . . . . . . . . . . 36
2.8 Mandatory Repayments . . . . . . . . . . . . . . . . 36
2.9 Repayment . . . . . . . . . . . . . . . . . . . . . . 37
2.10 Interest . . . . . . . . . . . . . . . . . . . . . . 37
2.11 Fees . . . . . . . . . . . . . . . . . . . . . . . . 38
2.12 Computation of Fees and Interest . . . . . . . . . . 39
2.13 Payments by the Borrowers. . . . . . . . . . . . . . 40
2.14 Payments by the Lenders . . . . . . . . . . . . . . . 41
2.15 Sharing of Payments, Etc. . . . . . . . . . . . . . . 42
2.16 Application of Payments . . . . . . . . . . . . . . . 43
2.17 Foreign Exchange Facility . . . . . . . . . . . . . . 45
2.18 Guaranty . . . . . . . . . . . . . . . . . . . . . . 47
2.19 Joint and Several Liability . . . . . . . . . . . . . 50
2.20 Designation of Borrower Representative . . . . . . . 51
ARTICLE III.
THE LETTERS OF CREDIT . . . . . . . . . . . 51
3.1 The Letter of Credit Subfacility. . . . . . . . . . . 51
3.2 Issuance, Amendment and Renewal of Letters of
Credit . . . . . . . . . . . . . . . . . . . . . . . 53
3.3 Risk Participations, Drawings and
Reimbursements . . . . . . . . . . . . . . . . . . . 55
3.4 Repayment of Participations . . . . . . . . . . . . . 56
3.5 Role of the Issuing Bank . . . . . . . . . . . . . . 57
3.6 Obligations Absolute . . . . . . . . . . . . . . . . 58
3.7 Cash Collateral Pledge . . . . . . . . . . . . . . . 59
3.8 Letter of Credit Fees . . . . . . . . . . . . . . . . 59
3.9 Uniform Customs and Practice . . . . . . . . . . . . 60
ARTICLE IV.
TAXES, YIELD PROTECTION AND ILLEGALITY . . . . . . . 60
4.1 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 60
4.2 Illegality . . . . . . . . . . . . . . . . . . . . . 62
4.3 Increased Costs and Reduction of Return . . . . . . . 63
4.4 Funding Losses . . . . . . . . . . . . . . . . . . . 64
4.5 Inability to Determine Rates . . . . . . . . . . . . 64
4.6 Certificates of Lenders . . . . . . . . . . . . . . . 65
4.7 Survival . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE V.
CONDITIONS PRECEDENT . . . . . . . . . . . 65
5.1 Conditions of Initial Loans . . . . . . . . . . . . . 65
5.2 Conditions to All Credit Extensions . . . . . . . . . 68
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES . . . . . . . . . 69
6.1 Corporate Existence and Power . . . . . . . . . . . . 69
6.2 Corporate Authorization; No Contravention . . . . . . 69
6.3 Governmental Authorization . . . . . . . . . . . . . 70
6.4 Binding Effect . . . . . . . . . . . . . . . . . . . 70
6.5 Litigation . . . . . . . . . . . . . . . . . . . . . 70
6.6 No Default . . . . . . . . . . . . . . . . . . . . . 71
6.7 ERISA Compliance . . . . . . . . . . . . . . . . . . 71
6.8 Use of Proceeds; Margin Regulations . . . . . . . . . 72
6.9 Taxes . . . . . . . . . . . . . . . . . . . . . . . . 72
6.10 Financial Condition, Fiscal Year . . . . . . . . . . 72
6.11 Environmental Matters . . . . . . . . . . . . . . . . 72
6.12 Regulated Entities . . . . . . . . . . . . . . . . . 73
6.13 No Burdensome Restrictions . . . . . . . . . . . . . 73
6.14 Business and Collateral Locations . . . . . . . . . . 74
6.15 Real Property . . . . . . . . . . . . . . . . . . . . 74
6.16 Eligibility of Collateral . . . . . . . . . . . . . . 74
6.17 Intellectual Property; Licenses . . . . . . . . . . . 74
6.18 Ownership of Assets; Liens . . . . . . . . . . . . . 75
6.19 Subsidiaries . . . . . . . . . . . . . . . . . . . . 75
6.20 Partnerships; Joint Ventures . . . . . . . . . . . . 76
6.21 Solvency . . . . . . . . . . . . . . . . . . . . . . 76
6.22 Material Contracts; Labor Matters . . . . . . . . . . 76
6.23 Insurance . . . . . . . . . . . . . . . . . . . . . . 76
6.24 Representations and Warranties Relating to
Accounts . . . . . . . . . . . . . . . . . . . . . . 76
6.25 Inventory . . . . . . . . . . . . . . . . . . . . . . 77
6.26 Full Disclosure . . . . . . . . . . . . . . . . . . . 78
ARTICLE VII.
AFFIRMATIVE COVENANTS . . . . . . . . . . . 78
7.1 Financial Statements . . . . . . . . . . . . . . . . 78
7.2 Certificates; Other Information . . . . . . . . . . . 79
7.3 Notices . . . . . . . . . . . . . . . . . . . . . . . 80
7.4 Preservation of Corporate Existence, Etc . . . . . . 82
7.5 Maintenance of Property . . . . . . . . . . . . . . . 82
7.6 Insurance . . . . . . . . . . . . . . . . . . . . . . 82
7.7 Payment of Obligations . . . . . . . . . . . . . . . 83
7.8 Compliance with Laws . . . . . . . . . . . . . . . . 83
7.9 Compliance with ERISA . . . . . . . . . . . . . . . . 83
7.10 Inspection of Property and Books and Records . . . . 84
7.11 Environmental Laws . . . . . . . . . . . . . . . . . 84
7.12 Use of Proceeds . . . . . . . . . . . . . . . . . . . 84
7.13 Further Assurances . . . . . . . . . . . . . . . . . 85
ARTICLE VIII.
NEGATIVE COVENANTS . . . . . . . . . . . . 85
8.1 Limitation on Liens . . . . . . . . . . . . . . . . . 85
8.2 Liquidation; Change in Ownership or Name;
Disposition or Acquisition of Assets; Etc. . . . . . 87
8.3 Consolidations and Mergers . . . . . . . . . . . . . 88
8.4 Loans and Investments . . . . . . . . . . . . . . . . 88
8.5 Limitation on Indebtedness . . . . . . . . . . . . . 89
8.6 Transactions with Affiliates . . . . . . . . . . . . 90
8.7 Use of Proceeds . . . . . . . . . . . . . . . . . . . 90
8.8 Change in Accounts . . . . . . . . . . . . . . . . . 90
8.9 Contingent Obligations . . . . . . . . . . . . . . . 90
8.10 Restricted Payments . . . . . . . . . . . . . . . . . 90
8.11 ERISA . . . . . . . . . . . . . . . . . . . . . . . . 91
8.12 Change in Business . . . . . . . . . . . . . . . . . 91
8.13 Accounting Changes . . . . . . . . . . . . . . . . . 91
8.14 Intellectual Property Collateral . . . . . . . . . . 91
8.15 Negative Pledges, Etc. . . . . . . . . . . . . . . . 92
8.16 Funded Debt/EBITDA Ratio . . . . . . . . . . . . . . 93
8.17 Consolidated Tangible Net Worth . . . . . . . . . . . 93
8.18 Capital Expenditures . . . . . . . . . . . . . . . . 93
ARTICLE IX.
EVENTS OF DEFAULT . . . . . . . . . . . . 93
9.1 Event of Default . . . . . . . . . . . . . . . . . . 93
9.2 Remedies . . . . . . . . . . . . . . . . . . . . . . 96
9.3 Rights Not Exclusive . . . . . . . . . . . . . . . . 96
ARTICLE X.
THE AGENT . . . . . . . . . . . . . . 97
10.1 Appointment and Authorization; "Agent" and
"Issuing Bank" . . . . . . . . . . . . . . . . . . . 97
10.2 Delegation of Duties . . . . . . . . . . . . . . . . 97
10.3 Liability of Agent . . . . . . . . . . . . . . . . . 98
10.4 Reliance by Agent . . . . . . . . . . . . . . . . . . 98
10.5 Notice of Default . . . . . . . . . . . . . . . . . . 99
10.6 Credit Decision . . . . . . . . . . . . . . . . . . . 99
10.7 Indemnification of Agent . . . . . . . . . . . . . . 100
10.8 Agent in Individual Capacity . . . . . . . . . . . . 100
10.9 Successor Agent; Successor Issuing Bank . . . . . . . 100
10.10 Withholding Tax . . . . . . . . . . . . . . . . 101
10.11 Collateral Matters . . . . . . . . . . . . . . . 103
ARTICLE XI.
MISCELLANEOUS . . . . . . . . . . . . . 104
11.1 Amendments and Waivers . . . . . . . . . . . . . . . 104
11.2 Notices . . . . . . . . . . . . . . . . . . . . . . . 105
11.3 No Waiver; Cumulative Remedies . . . . . . . . . . . 106
11.4 Costs and Expenses . . . . . . . . . . . . . . . . . 106
11.5 Borrower Indemnification . . . . . . . . . . . . . . 107
11.6 Marshalling; Payments Set Aside . . . . . . . . . . . 108
11.7 Successors and Assigns . . . . . . . . . . . . . . . 108
11.8 Assignments . . . . . . . . . . . . . . . . . . . . . 109
11.9 Set-off . . . . . . . . . . . . . . . . . . . . . . . 110
11.10 Notification of Addresses, Lending
Offices, Etc. . . . . . . . . . . . . . . . . . 110
11.11 Counterparts . . . . . . . . . . . . . . . . . . 110
11.12 Severability . . . . . . . . . . . . . . . . . . 111
11.13 No Third Parties Benefited . . . . . . . . . . . 111
11.14 Governing Law and Jurisdiction . . . . . . . . . 111
11.15 Waiver of Jury Trial . . . . . . . . . . . . . . 111
11.16 Entire Agreement . . . . . . . . . . . . . . . . 112
SCHEDULES
Schedule 1 - Payment & Lending Offices
Schedule 2 - Commitment Percentages
Schedule 3 - Notice Addresses
Schedule 4 - Material Subsidiaries
Schedule 5 - Calculation of MLA Cost
Schedule 6.5 - Litigation
Schedule 6.7 - ERISA
Schedule 6.9 - Taxes
Schedule 6.11 - Environmental Matters
Schedule 6.14(a) - Business Locations
Schedule 6.14(b) - Locations of Inventory, Equipment and Other
Collateral
Schedule 6.15 - Real Property (Owned and Leased)
Schedule 6.17 - Intellectual Property
Schedule 6.19 - Subsidiaries and Minority Interests
Schedule 6.20 - Partnerships and Joint Ventures
Schedule 6.22 - Material Contracts; Labor Matters
Schedule 6.23 - Insurance Matters
Schedule 6.24 - Accounts
Schedule 7.13 - Post-Closing Matters
Schedule 8.1 - Permitted Liens
Schedule 8.4 - Investments
Schedule 8.5 - Permitted Indebtedness
Schedule 8.9 - Contingent Obligations
EXHIBITS
Exhibit A Form of Borrowing Base Certificate
Exhibit B Form of Compliance Certificate
Exhibit C Form of Landlord's Consent
Exhibit D-1 Form of Promissory Note
Exhibit D-2 Form of Offshore Currency Promissory Note
Exhibit E Form of Notice of Borrowing
Exhibit F Form of Notice of Conversion/Continuation
Exhibit G Form of Loan Certificate
Exhibit H Form of Assignment and Acceptance
Exhibit I Form of Offshore Currency L/C Application
CREDIT AGREEMENT
DATED AS OF NOVEMBER 12, 1996 BY AND AMONG
INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
MUREX DIAGNOSTICS INTERNATIONAL, INC.,
IMTC HOLDINGS, INC., MUREX DIAGNOSTICS CORPORATION,
IMTC HOLDINGS (UK) LIMITED, MUREX DIAGNOSTICS, INC.
AND MUREX BIOTECH LIMITED, AS BORROWERS,
BANK OF AMERICA ILLINOIS, AND BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION, ACTING
THROUGH ITS LONDON BRANCH, AS ISSUING BANKS,
BANK OF AMERICA, F.S.B., AS AGENT AND A LENDER AND
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO FROM TIME TO TIME
For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE I.
DEFINITIONS
-----------
1.1 CERTAIN DEFINED TERMS. The following terms have the
following meanings:
"ABBOTT" means Xxxxxx Laboratories, an Illinois
corporation.
"ABBOTT NOTE RECEIVABLE" means that certain note
receivable owing from Abbott and reflected on the consolidated
balance sheet of IMTC, which, as of the Agreement Date, is in
the principal amount of approximately $2,000,000.
"ACCOUNT" means, with respect to any Person, any account
of such Person and any other right of such Person to payment
for goods sold or leased or for services rendered, whether or
not evidenced by an instrument or chattel paper and whether or
not yet earned by performance.
"ACCOUNT DEBTOR" means any Person who is obligated under
an Account.
"AFFILIATE" means, as to any Person, any other Person
which, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. A Person
shall be deemed to control another Person if the controlling
Person possesses, directly or indirectly, the power to direct
or cause the direction of the management and policies of the
other Person, whether through the ownership of voting
securities, membership interests, by contract, or otherwise.
"AGENT" means BAFSB in its capacity as agent for the
Lenders hereunder, and any successor agent arising under
SECTION 10.9.
"AGENT-RELATED PERSONS" means the Agent and each Issuing
Bank, together with their respective Affiliates and the
officers, directors, employees, agents and attorneys-in-fact
of such Persons and Affiliates.
"AGENT'S PAYMENT OFFICE" means the address for payments
set forth on SCHEDULE 1 or such other address as the Agent may
from time to time specify.
"AGGREGATE REVOLVING CREDIT OBLIGATIONS" means, as of any
particular time, the sum of (a) the Effective Amount of all
Loans then outstanding, plus (b) the Effective Amount of all
L\C Obligations then outstanding.
"AGREEMENT" means this Credit Agreement.
"AGREEMENT DATE" means November 12, 1996.
"ASSIGNEE" has the meaning specified in SECTION 11.8(A).
"ASSIGNMENT OF INTERCOMPANY NOTES" means all documents
and instruments executed by any Borrower in connection with
the satisfaction of the obligations of the Borrowers set forth
in paragraph 1 of SCHEDULE 7.13 hereof, as the same may be
modified, supplemented or amended from time to time.
"ATTORNEY COSTS" means and includes the reasonable fees
and disbursements of any law firm or other external counsel,
the reasonable allocated cost of internal legal services and
all disbursements of internal counsel.
"AVAILABLE LOAN COMMITMENT" means, as of any particular
time, (a) the amount of the Commitment MINUS (b) the Aggregate
Revolving Credit Obligations then outstanding.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act
of 1978 (11 U.S.C. SECTION 101, ET SEQ.).
"BARBADOS BORROWERS" means Murex Diagnostics
International, Inc. and Murex Diagnostics Corporation.
"BASE RATE" means, for any day, the rate of interest in
effect for such day as publicly announced from time to time by
Bank of America National Trust and Savings Association in San
Francisco, California, as its "reference rate." (The
"reference rate" is a rate set by Bank of America National
Trust and Savings Association based upon various factors
including Bank of America National Trust and Savings
Association's costs and desired return, general economic
conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or
below such announced rate.) Any change in the reference rate
announced by Bank of America National Trust and Savings
Association shall take effect at the opening of business on
the day specified in the public announcement of such change.
"BASE RATE LOAN" means a Loan that bears interest at a
per annum rate equal to the Base Rate in effect from time to
time.
"BAI" means Bank of America Illinois.
"BAFSB" means Bank of America, F.S.B.
"BOA" means Bank of America National Trust and Savings
Association, acting through its London Branch.
"BORROWER REPRESENTATIVE" means IMTC Holdings, Inc., a
corporation organized under the laws of the State of Delaware,
or any other Borrower selected by the Borrowers in accordance
with SECTION 2.20.
"BORROWERS" means International Murex Technologies
Corporation, a corporation organized under the laws of the
Province of British Columbia, Murex Diagnostics International,
Inc., a corporation organized under the laws of Barbados, IMTC
Holdings, Inc., a corporation organized under the laws of the
State of Delaware, Murex Diagnostics Corporation, a
corporation organized under the laws of Barbados, IMTC
Holdings (UK) Limited, a corporation organized under the laws
of England, Murex Diagnostics, Inc., a corporation organized
under the laws of the State of Delaware and Murex Biotech
Limited, a corporation organized under the laws of England,
and "BORROWER" means any one of the foregoing.
"BORROWING" means a borrowing hereunder consisting of
Loans of the same Type made to any Borrower on the same day by
the Lenders under Article II, and, other than in the case of
Base Rate Loans, having the same Interest Period.
"BORROWING BASE" means, at any particular time, the
LESSER of:
(i) the sum of:
(a) eighty-five percent (85%) of Eligible Accounts;
PLUS
(b) eighty-five percent (85%) of the balance of the
Abbott Note Receivable which is not unpaid more than
thirty (30) days after its due date; PLUS
(c) fifty percent (50%) of the Value of Eligible
Inventory; and
(ii) EBITDA for the most recent twelve (12) month period
for which financial statements are available multiplied by 1.5.
"BORROWING BASE CERTIFICATE" means a document
substantially in the form of EXHIBIT A hereto, with
appropriate insertions, or such other form as shall be
acceptable to the Agent, as it may be amended or modified from
time to time.
"BORROWING BASE DEFICIENCY" means any condition wherein
the Aggregate Revolving Credit Obligations exceed the
Borrowing Base as set forth on the most recent Borrowing Base
Certificate delivered to the Agent or as otherwise reasonably
determined by the Agent.
"BORROWING DATE" means any date on which a Borrowing
occurs under SECTION 2.3.
"BUSINESS DAY" means any day other than a Saturday,
Sunday or other day on which commercial banks in Atlanta,
Georgia are authorized or required by law to close and, if the
applicable Business Day relates to any Eurodollar Rate Loan or
an Offshore Currency Loan, means such a day on which dealings
are carried on in London, England and any other applicable
offshore dollar interbank market.
"CAPITAL ADEQUACY REGULATION" means any guideline,
request or directive of any central bank or other Governmental
Authority, or any other law, rule or regulation, whether or
not having the force of law, in each case, regarding capital
adequacy of any bank or of any corporation controlling a bank.
"CAPITAL EXPENDITURES" means, for any fiscal year for any
Person, the sum of (a) the aggregate amount of all
expenditures of or Indebtedness incurred by such Person for
fixed or capital assets made during such period which, in
accordance with GAAP, would be classified as capital
expenditures, and (b) the aggregate amount of all Capitalized
Lease Obligations of such Person incurred during such period,
and (c) the aggregate amount of all capitalized research and
development costs as shown on the consolidated balance sheet
and cash flow statement of IMTC.
"CAPITAL STOCK" means, as applied to any Person, any
capital stock of such Person, 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.
"CAPITALIZED LEASE" means any lease which is or should be
capitalized on the balance sheet of the lessee in accordance
with GAAP.
"CAPITALIZED LEASE OBLIGATIONS" means, with respect to
any Person, all monetary obligations of such Person under any
Capitalized Leases, and, for purposes of this Agreement and
each other Loan Document, the amount of such obligations shall
be the capitalized amount thereof, determined in accordance
with GAAP, and the stated maturity thereof shall be the date
of the last payment of rent or any other amount due under such
Capitalized Lease prior to the first date upon which such
Capitalized Lease may be terminated by the lessee without
payment of a penalty.
"CASH COLLATERALIZE" means to pledge and deposit with or
deliver to the Agent, for the benefit of the Issuing Bank and
the Lenders, as additional collateral for the L/C Obligations,
cash or deposit account balances pursuant to documentation in
form and substance reasonably satisfactory to the Agent and
the Issuing Bank (which documents are hereby consented to by
the Lenders). Derivatives of such term shall have
corresponding meaning. Cash collateral shall be maintained in
blocked, non-interest bearing deposit accounts as directed by
the Agent.
"CERCLA" has the meaning specified in the definition of
"Environmental Laws."
"CHANGE IN CONTROL" means the occurrence of any of the
following: (a) any Person (other than a Person that, as of
the Agreement Date, owns 10% or more of the outstanding shares
of voting securities of IMTC) or group (as such term is
defined in Rule 13d-5 under the Exchange Act) of Persons shall
as a result of a tender or exchange offer, open market
purchase, merger, privately negotiated purchases or otherwise,
have become, directly or indirectly, the beneficial owner
(within the meaning of Rule 13d-3 of the Exchange Act) of
securities having forty percent (40%) or more of the ordinary
voting power of the then outstanding securities of IMTC; or
(b) a change in any two of the individuals acting as the
Chairman, President, or Chief Financial Officer, respectively,
of IMTC after the Agreement Date, if such individuals are not
replaced with individuals reasonably acceptable to the Agent
within ninety (90) days.
"CHIRON LITIGATION" means those certain legal proceedings
involving patents owned by Chiron Corporation relating to
hepatitis C virus.
"CODE" means the Internal Revenue Code of 1986, and
regulations promulgated thereunder.
"COLLATERAL" means all property and interests in property
and proceeds thereof now owned or hereafter acquired by any
Person in or upon which a Lien now or hereafter exists in
favor of the Issuing Bank or the Lenders, or the Agent or the
Collateral Agent on behalf of the Issuing Bank and the
Lenders, whether under this Agreement or under any other
documents executed by any such Person and delivered to the
Agent, the Collateral Agent or the Issuing Bank or the
Lenders.
"COLLATERAL AGENT" means, with respect to all property
located in the United States of America or Barbados, BAFSB,
and with respect to all property located in the United
Kingdom, Bank of America National Trust and Savings
Association, acting through its London branch.
"COLLATERAL DOCUMENTS" means, collectively, (i) the
Guaranty Agreements, the Security Agreements, the Stock Pledge
Agreements, the Assignment of Intercompany Notes, the
Intellectual Property Security Agreements, and all other
security agreements, mortgages, deeds of trust, patent and
trademark assignments, lease assignments, guarantees and other
similar agreements between any Borrower or any Guarantor and
the Lenders, the Issuing Bank, any Collateral Agent or the
Agent, for the benefit of the Issuing Bank and the Lenders,
now or hereafter delivered to the Lenders, the Issuing Bank,
any Collateral Agent or the Agent pursuant to or in connection
with the transactions contemplated hereby, and all financing
statements (or comparable documents now or hereafter filed in
accordance with the Uniform Commercial Code or comparable law)
against any Borrower or any Guarantor as debtor in favor of
the Lenders, the Issuing Bank, any Collateral Agent or the
Agent, for the benefit of the Issuing Bank and the Lenders, as
secured party, and (ii) any amendments, supplements,
modifications, renewals, replacements, consolidations,
substitutions and extensions of any of the foregoing.
"COMMITMENT" means the several obligations of the Lenders
to advance the aggregate sum of up to U.S. $15,000,000 the
Borrowers, (including the several obligations of the Offshore
Currency Lenders pursuant to the Offshore Currency Commitment)
pursuant to the terms hereof, as such obligations may be
reduced from time to time pursuant to the terms hereof;
provided, however, that a Lender which is not an Offshore
Currency Lender shall not be obligated to advance any funds in
an Offshore Currency.
"COMMITMENT PERCENTAGES" means the percentages in which
the Lenders are severally bound to satisfy the Commitment
(including, without limitation, each Offshore Currency
Lender's Offshore Currency Commitment) to make Loans to the
Borrowers as shall be in effect from time to time; such
percentages as of the Agreement Date are as set forth on
SCHEDULE 2 hereto.
"COMPUTATION DATE" has the meaning ascribed to such term
in SECTION 2.5(A) hereof.
"COMPLIANCE CERTIFICATE" means a certificate
substantially in the form of EXHIBIT B.
"CONSOLIDATED TANGIBLE NET WORTH" means, with respect to
IMTC on a consolidated basis with its Subsidiaries at any
time, the total of the shareholders' equity (including Capital
Stock, additional paid-in capital and retained earnings after
deducting treasury stock) less the sum of the total amount of
all intangible assets.
"CONTINGENT OBLIGATION" means, as to any Person, any
direct or indirect liability of that Person, whether or not
contingent, with or without recourse, (a) with respect to any
Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the
"primary obligor"), including any obligation of that Person
(i) to purchase, repurchase or otherwise acquire such primary
obligations or any security therefor, (ii) to advance or
provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital
of the primary obligor or otherwise to maintain the net worth
or solvency or any balance sheet item, level of income or
financial condition of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of
assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation, or (iv) otherwise to assure or hold harmless the
holder of any such primary obligation against loss in respect
thereof (each, a "GUARANTY OBLIGATION"); (b) with respect to
any Surety Instrument (other than any Letter of Credit) issued
for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments;
(c) to purchase any materials, supplies or other property
from, or to obtain the services of, another Person if the
relevant contract or other related document or obligation
requires that payment for such materials, supplies or other
property, or for such services, shall be made regardless of
whether delivery of such materials, supplies or other property
is ever made or tendered, or such services are ever performed
or tendered, or (d) in respect of any Swap Contract. The
amount of any Contingent Obligation shall, in the case of
Guaranty Obligations, be deemed equal to the stated or
determinable amount of the primary obligation in respect of
which such Guaranty Obligation is made or if less, the maximum
stated amount of the Guaranty Obligation or, if not stated or
if indeterminable, the maximum reasonably anticipated
liability in respect thereof.
"CONTRACT RIGHT" means, with respect to any Person, any
right of such Person to payment under a contract.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any security issued by such Person or of any
agreement, undertaking, contract, indenture, mortgage, deed of
trust or other instrument, document or agreement to which such
Person is a party or by which it or any of its property is
bound.
"CONVERSION/CONTINUATION DATE" means any date on which,
under SECTION 2.4, the Borrower Representative (a) converts
Loans of one Type to another Type, or (b) continues as Loans
of the same Type, but with a new Interest Period, Loans having
Interest Periods expiring on such date.
"CREDIT EXTENSION" means and includes (a) the making of
any Loans hereunder, and (b) the Issuance of any Letters of
Credit hereunder.
"DEFAULT" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not
cured or otherwise remedied during such time) constitute an
Event of Default.
"DEFAULT RATE" means a simple per annum interest rate
equal to, (a) with respect to outstanding principal, the sum
of (i) (x) the Eurodollar Rate plus 2.5% or (y) the Base Rate,
as applicable, PLUS (ii) two percent (2%), and (b) with
respect to all other Obligations, the sum of (i) the Base
Rate, PLUS (ii) one percent (1%).
"EBITDA" means, for any period for IMTC on a consolidated
basis, the net income for such period PLUS (i) without
duplication and to the extent reflected as charges in the
statement of net income for such period, the sum of (a) income
taxes, (b) interest expense, (c) depreciation and amortization
expense, (d) losses arising from fluctuations in foreign
currency exchange rates, (e) for all calculations which
include a period ending on or prior to June 30, 1996, the
amount of royalty obligations accrued in connection with the
Chiron Litigation and (f) Attorney Costs incurred by IMTC and
its Subsidiaries in connection with the Chiron Litigation,
MINUS (ii) without duplication and to the extent included in
the net income for such period, (a) gains arising from
fluctuations in foreign currency rates, and (b) for all
calculations which include a period ending on or prior to
June 30, 1996, the amount of $300,000 per quarter for royalty
obligations in connection with the Chiron Litigation.
Additionally, for all calculations of EBITDA through
December 31, 1997, the aggregate amount of payments on the
Xxxxxx Note Receivable (not to exceed $2,000,000) received by
any Borrower from Xxxxxx during such period will be added to
net income for such period (to the extent not included in
calculating net income for such period).
"EFFECTIVE AMOUNT" means (i) with respect to any Loans on
any date, the Equivalent Amount of the aggregate outstanding
principal amount thereof after giving effect to any Borrowings
and prepayments or repayments of Loans occurring on such date;
and (ii) with respect to any outstanding L/C Obligations on
any date, the Equivalent Amount of such L/C Obligations on
such date after giving effect to any Issuances of Letters of
Credit occurring on such date and any other changes in the
aggregate amount of the L/C Obligations as of such date,
including as a result of any reimbursements of outstanding
unpaid drawings under any Letters of Credit or any reductions
in the maximum amount available for drawing under Letters of
Credit taking effect on such date.
"ELIGIBLE ACCOUNT" means an Account owing to any
Borrower:
(1) which is genuine and in all respects what it
purports to be;
(2) which arises from the sale of goods by any
Borrower; and (i) such goods comply with such Account
Debtor's specifications (if any) and have been shipped
to, or delivered to and accepted by, such Account Debtor
and (ii) such Borrower has possession of, or if requested
by the Agent, has delivered to the Agent, shipping and
delivery receipts evidencing such shipment, delivery and
acceptance;
(3) which is payable in the United States or in the
United Kingdom in U.S. Dollars or in Offshore Currency;
(4) which (a) is evidenced by an invoice rendered
to the Account Debtor with respect thereto which (i) is
dated not earlier than the date of shipment or
performance and (ii) has payment terms which are
acceptable to the Agent which payment terms existing on
and disclosed to the Agent prior to the Agreement Date
are acceptable to the Agent, and (b) does not constitute
service charges, chargebacks, memo xxxxxxxx or ineligible
credit column balances;
(5) which is not subject to any assignment, claim
or Lien, other than a Lien in favor of the Agent or a
Collateral Agent;
(6) which is a valid, legally enforceable and
unconditional obligation of the Account Debtor with
respect thereto, and is not subject to any setoff,
counterclaim, credit, allowance (except any credit or
allowance which has been deducted in computing the net
amount of the applicable invoice, as shown in the
original schedule or Borrowing Base Certificate furnished
to the Agent identifying or including such Account) or
adjustment by the Account Debtor with respect thereto, or
to any claim by such Account Debtor denying liability
thereunder in whole or in part, and such Account Debtor
has not refused to accept any of the goods or services
which are the subject of such Account or offered or
attempted to return any of such goods;
(7) if there are no proceedings or actions which
are then threatened or pending against the Account Debtor
with respect thereto or to which such Account Debtor is a
party which might result in any material adverse change
in such Account Debtor's financial condition or
prospects, or in its ability to pay any Account in full
when due;
(8) which does not arise out of a contract or order
which, by its terms, forbids, restricts or makes void or
unenforceable the assignment by such Borrower to the
Agent of the Account arising with respect thereto;
(9) if the Account Debtor with respect thereto is
not an Obligor or an Affiliate of an Obligor or an
employee or agent of any Obligor;
(10) which is not an Account arising from a "sale on
approval," "sale or return" or "consignment," or subject
to any other repurchase or return agreement;
(11) which is not an Account with respect to which
possession and/or control of the goods sold giving rise
thereto is held, maintained or retained by such Borrower,
any other Obligor, any Affiliate of any Obligor, or any
of their respective Subsidiaries (or by any agent or
custodian of any of the foregoing) for the account of or
subject to further and/or future direction from the
Account Debtor thereof;
(12) which is not an Account which in any way fails
to meet or violates any warranty, representation or
covenant contained in this Agreement or any Loan Document
relating directly or indirectly to such Borrower's
Accounts;
(13) which arises in the ordinary course of such
Borrower's business;
(14) which is not unpaid on the date that is ninety
(90) days after its invoice date;
(15) to the extent such Account, together with all
other Accounts owing by such Account Debtor to any
Borrower, does not exceed in the aggregate 25% of the
amount of all Accounts of the Borrowers; and
(16) which the Account is evidenced by chattel paper
or an instrument, (a) the Agent shall have specifically
agreed in writing to include such Account as an Eligible
Account, (b) only payments then due and payable under
such chattel paper or instrument shall be included as an
Eligible Account and (c) the original of such chattel
paper or instrument has been endorsed and/or assigned and
delivered to the Agent in a manner satisfactory to the
Agent.
An Account which is at any time an Eligible Account but which
subsequently fails to meet any of the foregoing requirements,
shall forthwith cease to be an Eligible Account.
"ELIGIBLE ASSIGNEE" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and
having a combined capital and surplus of at least
$100,000,000; (b) a commercial bank organized under the laws
of any other country which is a member of the Organization for
Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a
combined capital and surplus of at least $100,000,000; and
(c) a Person that is primarily engaged in the business of
commercial banking or asset based lending and that is an
Affiliate of a Lender.
"ELIGIBLE INVENTORY" means Inventory owned by any
Borrower which meets the following requirements:
(1) it is not subject to any assignment, claim or
Lien, other than a Lien in favor of the Agent or the
Collateral Agent, on behalf of the Issuing Bank and the
Lenders;
(2) it is (a)(i) finished goods Inventory which is
held for sale, (ii) raw materials, or (iii) work in
process which the Agent determines, in its sole and
absolute discretion, to be in saleable form, (b) (except
as the Agent may otherwise consent in writing) new and
unused and (c) not Inventory classified by such Borrower
on its general ledgers, prepared in a manner consistent
with such Borrower's general ledgers disclosed to the
Agent prior to the Agreement Date, as either "close out"
or "discontinued" Inventory and which "close out" or
"discontinued" Inventory has been owned by such Borrower
for an aggregate of more than eighteen months;
(3) unless it meets the requirements of CLAUSE (4)
of this definition, it is in the possession and control
of such Borrower or its agents; PROVIDED, HOWEVER, that
if it is stored on premises located in the U.S.A. and
leased to such Borrower, the Agent is in possession of a
Landlord's Consent duly executed by the owner of such
premises;
(4) if it is in the possession or control of a
bailee, warehouseman, consignee, processor or other
Person other than a Borrower, the Agent is in possession
of such agreements, instruments and documents as the
Agent may reasonably require (each in form and content
reasonably acceptable to the Agent and duly executed, as
appropriate, by the bailee, warehouseman, consignee,
processor or other Person in possession or control of
such Inventory, as applicable) including but not limited
to warehouse receipts in the Agent's name covering such
Inventory and a Landlord's Consent or other similar
consent, as applicable;
(5) it is not Inventory which is dedicated to or,
identifiable with, or is otherwise specifically to be
used in the manufacture of, goods which are to be sold to
the United States of America or any department, agency or
instrumentality thereof and in respect of which
Inventory, such Borrower shall have received any progress
or other advance payment which is or may be credited or
set off against any Account generated upon the sale or
lease of any such goods;
(6) it is not Inventory produced in violation of
the Fair Labor Standards Act and subject to the "hot
goods" provisions contained in Title 29 U.S.C. SECTION
215 or any successor statute or section;
(7) it is not (i) goods used in connection with
maintenance or repair of such Borrower's business,
properties or assets, (ii) general supplies, (iii) raw
materials in the possession or control of a processor or
finisher or (iv) work in process (except to the extent
the Agent determines, in its sole and absolute
discretion, such work in process to be in saleable form
as set forth in clause (2)(a)(iii) above);
(8) it is not Inventory which in any way fails to
meet or violates any warranty, representation or covenant
contained in this Agreement or any Loan Document relating
directly or indirectly to such Borrower's Inventory; and
(9) it is excessively slow moving or otherwise
unacceptable due to age, type, category, quality and/or
quantity, as determined by the Agent in its reasonable
discretion.
Inventory which is at any time Eligible Inventory but which
subsequently fails to meet any of the foregoing requirements
shall forthwith cease to be Eligible Inventory.
"ENVIRONMENTAL CLAIMS" means all claims, however
asserted, by any Governmental Authority or other Person
alleging potential liability or responsibility for violation
of any Environmental Law, or for release or injury to the
environment or threat to public health, personal injury
(including sickness, disease or death), property damage,
natural resources damage, or otherwise alleging liability or
responsibility for damages (punitive or otherwise), cleanup,
removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of
relief, resulting from or based upon the presence, placement,
discharge, emission or release (including intentional and
unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental, placement, spills,
leaks, discharges, emissions or releases) of any Hazardous
Material at, in, or from Property, whether or not owned by any
Borrower.
"ENVIRONMENTAL LAWS" means the Resource Conservation and
Recovery Act, 42 U.S.C. Section 690, ET SEQ., the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, any so-called "Superfund"
or "Superlien" law, the Toxic Substances Control Act, and any
successor statute of similar import, together with the
regulations thereunder, in each case as in effect from time to
time, and any other applicable federal, European community,
state or local statute, law, ordinance, code, rule,
regulation, guideline, order or decree, or other requirement
(whether or not having the force of law) regulating, relating
to, or imposing liability or standards of conduct (including,
but not limited to, permit requirements, and emission or
effluent restrictions) concerning any Hazardous Materials or
any hazardous, toxic or dangerous waste, substance or
constituent, or any pollutant or contaminant or other
substance, whether solid, liquid or gas, or otherwise relating
to public health and safety and/or protection of the
environment, as now or at any time hereafter in effect.
References to sections of any such statute shall be construed
to also refer to any successor sections.
"EQUIPMENT" means, with respect to any Person, all such
Person's equipment of every description, including, without
limitation, fixtures, furniture, vehicles and trade fixtures,
together with any and all accessions, parts and equipment
attached thereto or used in connection therewith, and any
substitutions therefor and replacements thereof.
"EQUIVALENT AMOUNT" means (i) whenever this Agreement
requires or permits a determination on any date of the
equivalent in U.S. Dollars of an amount expressed in an
Offshore Currency, the equivalent amount in U.S. Dollars of an
amount expressed in an Offshore Currency as determined by the
Agent on such date on the basis of the Spot Rate for the
purchase of U.S. Dollars with such Offshore Currency on the
relevant Computation Date provided for hereunder; or (ii)
whenever this Agreement requires or permits a determination on
any date of the equivalent amount in an Offshore Currency of
an amount expressed in U.S. Dollars, the equivalent amount in
an Offshore Currency of an amount expressed in U.S. Dollars as
determined by the Agent on such date on the basis of the Spot
Rate for the purchase of such Offshore Currency with U.S.
Dollars on the relevant Computation Date provided for
hereunder.
"ERISA" means the Employee Retirement Income Security Act
of 1974, and regulations promulgated thereunder.
"ERISA AFFILIATE" means any trade or business (whether or
not incorporated) under common control with any Borrower
within the meaning of Section 414(b) or (c) of the Code (and
Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect
to a Pension Plan; (b) a withdrawal by any Borrower or any
ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations which is treated as such a withdrawal
under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by any Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan
is in reorganization; (d) the filing of a notice of intent to
terminate, the treatment of a Plan amendment as a termination
under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might
reasonably be expected to constitute grounds under Section
4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan;
or (f) the imposition of any liability under Title IV of
ERISA, other than PBGC premiums due but not delinquent under
Section 4007 of ERISA, upon any Borrower or any ERISA
Affiliate.
"ESTIMATED REMEDIATION COSTS" means all costs associated
with performing work to remediate contamination of real
property or groundwater, including engineering and other
professional fees and expenses, costs to remove, transport and
dispose of contaminated soil, costs to "cap" or otherwise
contain contaminated soil, and costs to pump and treat water
and monitor water quality.
"EURODOLLAR RATE" means, for each Interest Period in
respect of Eurodollar Rate Loans comprising part of the same
Loan, an interest rate per annum (rounded upward to the
nearest 1/16th of 1%) determined by the Agent pursuant to the
following formula:
(a) With respect to Eurodollar Rate Loans
denominated in U.S. Dollars, as follows:
Eurodollar Rate = LIBOR
--------------------------------
1.00 Offshore Reserve Percentage
Where,
"OFFSHORE RESERVE PERCENTAGE" means for any day for any
Interest Period the maximum reserve percentage (expressed
as a decimal, rounded upward to the nearest 1/100th of
1%) in effect on such day (whether or not applicable to
any Lender) under regulations issued from time to time by
the FRB for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal
reserve requirement) with respect to eurocurrency funding
(currently referred to as "Eurocurrency liabilities")
having a term comparable to such Interest Period; and
"LIBOR" means the rate of interest per annum determined
by the Agent to be the arithmetic mean (rounded upward to
the nearest 1/16th of 1%) of the rates of interest per
annum notified to the Agent by the Reference Lender as
the rate of interest at which dollar deposits in the
approximate amount of the Loan to be made or continued
as, or converted into, an Eurodollar Rate Loan by such
Reference Lender and having a maturity comparable to such
Interest Period would be offered to major banks in the
London interbank market at their request at or about
11:00 a.m. (New York) on the second Business Day prior to
the commencement of such Interest Period.
(b) With respect to Eurodollar Rate Loans
denominated in an Offshore Currency, as follows:
Eurodollar Rate = LIBOR + MLA Cost
Where,
"MLA Cost" means the percentage per annum calculated in
accordance with SCHEDULE 5 hereto.
"LIBOR" means the rate of interest equal to the average
(rounded upwards, if necessary, to the nearest 1/100 of
1%) as of 11:00 a.m. (London Time), on the Business Day
of the commencement of such Interest Period for the
Offshore Currency for a period comparable to such
Interest Period, at which deposits in the Offshore
Currency in Same Day Funds are offered to BOA in the
London interbank market.
The Eurodollar Rate shall be adjusted automatically as of
the effective date of any change in the Offshore Reserve
Percentage or the MLA Cost.
"EURODOLLAR RATE LOAN" means a Loan that bears interest
based on the Eurodollar Rate plus 2.5% and which shall be in a
principal amount of at least $500,000 and in an integral
multiple of $100,000 (or the Equivalent Amount thereof in an
Offshore Currency).
"EVENT OF DEFAULT" means any of the events or
circumstances specified in SECTION 9.1.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
and regulations promulgated thereunder.
"FDIC" means the Federal Deposit Insurance Corporation,
and any Governmental Authority succeeding to any of its
principal functions.
"FEDERAL FUNDS RATE" means, for any day, the rate set
forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the
Federal Reserve Bank of New York (including any such
successor, "H.15(519)") on the preceding Business Day opposite
the caption "Federal Funds (Effective)"; or, if for any
relevant day such rate is not so published on any such
preceding Business Day, the rate for such day will be the
arithmetic mean as determined by the Agent of the rates for
the last transaction in overnight Federal funds arranged prior
to 12:00 p.m. (New York City time) on that day by each of
three leading brokers of Federal funds transactions in New
York, New York selected by the Agent.
"FEE LETTER" has the meaning specified in SECTION
2.11(A).
"FEMA" has the meaning specified in SECTION 2.17.
"FIXTURES" means, with respect to any Person, all of such
Person's fixtures of every description and all substitutions
and replacements of any thereof.
"FOREIGN EXCHANGE AGREEMENT" means a foreign currency
exchange hedging product agreement providing foreign currency
exchange protection, and arising at any time between any
Borrower, on the one hand, and one or more of the Lenders (or
an Affiliate of a Lender), on the other hand, as such
agreement may be modified, supplemented or amended, and in
effect from time to time.
"FX LENDER" has the meaning set forth in SECTION 2.17.
"FX TRADING OFFICE" means the office designated as the FX
Trading Office on SCHEDULE 1, or such other office as BAFSB
may designate from time to time.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of
its principal functions.
"FUNDED DEBT" means, without double-counting, with
respect to IMTC on a consolidated basis with its Subsidiaries
for any twelve month period, the arithmetic average Equivalent
Amount in U.S. Dollars outstanding during such period of the
following: Indebtedness for money borrowed and Indebtedness
represented by notes payable and drafts accepted representing
extensions of credit, all obligations evidenced by bonds,
debentures, notes or other similar instruments, all
Indebtedness upon which interest charges are customarily paid,
all Capitalized Lease Obligations, all reimbursement
obligations with respect to outstanding letters of credit, all
Indebtedness issued or assumed as full or partial payment for
property or services (other than accrued expenses and trade
payables arising in the ordinary course of business, but only
if and so long as such accounts are payable on trade terms
customary in the industry), whether or not any such notes,
drafts, obligations or Indebtedness represent Indebtedness for
money borrowed.
"FURTHER TAXES" means any and all present or future
taxes, levies, assessments, imposts, duties, deductions, fees,
withholdings or similar charges (including, without
limitation, net income taxes and franchise taxes), and all
liabilities with respect thereto, imposed by any jurisdiction
on account of amounts payable or paid pursuant to SECTION 4.1.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements
of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within
the U.S. accounting profession), which are applicable to the
circumstances as of the date of determination.
"GENERAL INTANGIBLES" means, with respect to any Person,
all of such Person's intangible personal property, including
things in action, causes of action and all other personal
property of such Person of every kind and nature (other than
accounts, inventory, furniture, fixtures and equipment,
chattel paper, documents, instruments and money), including,
without limitation, corporate or other business records,
inventions, designs, Intellectual Property, goodwill,
registrations, licenses, franchises, customer lists, tax
refund claims, claims against carriers and shippers, guarantee
claims, security interests, security deposits or other
security held by or granted to such Person to secure any
payment from an Account Debtor, and any rights to
indemnification.
"GOVERNMENTAL AUTHORITY" means any nation or government,
any state or other political subdivision thereof, any central
bank (or similar monetary or regulatory authority) thereof,
any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise,
by any of the foregoing.
"GUARANTORS" means IMTC Holdings Corporation (L) Limited,
a corporation organized under the laws of Malaysia, Murex
Diagnostics LTDA, a corporation organized under the laws of
Brazil, IMTC Technologies, Inc., a corporation organized under
the laws of the State of Delaware, Murex Diagnostics Pty., a
corporation organized under the laws of Australia, Murex
Diagnostics Pvt., a corporation organized under the laws of
Singapore, IMTC Holdings B.V., a private limited liability
company organized under the laws of The Netherlands, Murex
Diagnostics Benelux B.V., a private limited liability company
organized under the laws of The Netherlands, Murex
Diagnosticos, S.A., a corporation organized under the laws of
Spain, Murex Diagnostics S.A., a French societe anonyme
organized under the laws of France, Murex Diagnostici S.p.A.,
a corporation organized under the laws of Italy, Murex
Diagnostics A/S, a corporation organized under the laws of
Denmark, IMTC Finance, B.V., a corporation organized under the
laws of The Netherlands, Murex Diagnostics Czech, a
corporation organized under the laws of the Czech Republic,
and "GUARANTOR" means any one of them.
"GUARANTY AGREEMENTS" means each Guaranty Agreement of
even date herewith executed by a Guarantor in favor of the
Agent, and any other guaranty agreement hereafter entered into
by any Obligor, as the same may be modified, supplemented or
amended from time to time.
"GUARANTY OBLIGATION" has the meaning specified in the
definition of "Contingent Obligation."
"HAZARDOUS MATERIALS" means all those substances that are
regulated by, or which may form the basis of liability under,
any Environmental Law, including any substance identified
under any Environmental Law as a pollutant, contaminant,
hazardous waste, hazardous constituent, special waste,
hazardous substance, hazardous material, or toxic substance,
or petroleum or petroleum derived substance or waste.
"HONOR DATE" has the meaning specified in SUBSECTION
3.3(C).
"IMTC" means International Murex Technologies
Corporation, a corporation organized under the laws of the
Province of British Columbia.
"INDEBTEDNESS" of any Person means, without duplication,
(a) all indebtedness for borrowed money; (b) all obligations
issued, undertaken or assumed as the deferred purchase price
of property or services (other than trade payables entered
into in the ordinary course of business on ordinary terms);
(c) all non-contingent reimbursement or payment obligations
with respect to Surety Instruments; (d) all obligations
evidenced by notes, bonds, debentures or similar instruments,
including obligations so evidenced incurred in connection with
the acquisition of property, assets or businesses; (e) all
indebtedness created or arising under any conditional sale or
other title retention agreement, or incurred as financing, in
either case with respect to property acquired by the Person
(even though the rights and remedies of the seller or bank
under such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations
with respect to capital leases; (g) all indebtedness referred
to in clauses (a) through (f) above secured by (or for which
the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in
property (including accounts and contracts rights) owned by
such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness; and (h) all
Guaranty Obligations in respect of indebtedness or obligations
of others of the kinds referred to in clauses (a) through (g)
above. For all purposes of this Agreement, the Indebtedness
of any Person shall include all recourse Indebtedness of any
partnership or joint venture or limited liability company in
which such Person is a general partner or a joint venturer or
a member.
"INDEMNIFIED OBLIGATIONS" has the meaning specified in
SECTION 11.5.
"INDEMNIFIED PERSON" has the meaning specified in SECTION
11.5.
"INDEPENDENT AUDITOR" has the meaning specified in
SUBSECTION 7.1(A).
"INSOLVENCY PROCEEDING" means, with respect to any
Person, (a) any case, action or proceeding with respect to
such Person before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief
of debtors, or (b) any general assignment for the benefit of
creditors, composition, marshalling of assets for creditors,
or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors;
undertaken under U.S. Federal, state or foreign law, including
the Bankruptcy Code.
"INTELLECTUAL PROPERTY" means, with respect to any
Person, collectively, such Person's copyright property, Patent
Property and trademark property.
"INTELLECTUAL PROPERTY SECURITY AGREEMENTS" means the
Patent Security Agreement and the License Security Agreement.
"INTEREST PAYMENT DATE" means, as to any Eurodollar Rate
Loan, the last day of each Interest Period applicable to such
Eurodollar Rate Loan and, as to any Base Rate Loan, the last
Business Day of each month and each date such Base Rate Loan
is converted into another Type of Loan, PROVIDED, HOWEVER,
that if any Interest Period for an Eurodollar Rate Loan
exceeds three months, the dates that fall at the three month
intervals, after the beginning and prior to the end of such
Interest Period, are also Interest Payment Dates.
"INTEREST PERIOD" means, as to any Eurodollar Rate Loan,
the period commencing on the Borrowing Date of such Loan or on
the Conversion/Continuation Date on which the Loan is
converted into or continued as an Eurodollar Rate Loan, and
ending on the date one, two, three or six months thereafter as
selected by the Borrower Representative in its Notice of
Borrowing or Notice of Conversion/Continuation;
PROVIDED that:
(1) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period
shall be extended to the following Business Day unless,
in the case of an Eurodollar Rate Loan, the result of
such extension would be to carry such Interest Period
into another calendar month, in which event such Interest
Period shall end on the preceding Business Day;
(2) any Interest Period pertaining to an Eurodollar
Rate Loan that begins on the last Business Day of a
calendar month (or on a day for which there is no
numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such
Interest Period; and
(3) no Interest Period shall extend beyond the
Maturity Date.
"INVENTORY" means, with respect to any Person, any and
all of such Person's goods (including, without limitation,
goods in transit), wheresoever located which are or may at any
time be in transit to such Person, leased by such Person to a
lessee, held for sale or lease, furnished under any contract
of service, or held as raw materials, work in process, or
supplies or materials used or consumed in such Person's
business, or which are held for use in connection with the
manufacture, packaging, packing, shipping, advertising,
selling or finishing of such goods, and all goods of such
Person the sale or other disposition of which has given rise
to an Account, Contract Right, General Intangible, instrument
or chattel paper which are returned to and/or repossessed
and/or stopped in transit by such Person or the Agent or any
Lender or any agent or bailee of any of them, and all
documents of title or other documents representing the same.
"IRS" means the Internal Revenue Service, and any
Governmental Authority succeeding to any of its principal
functions under the Code.
"ISSUANCE DATE" has the meaning specified in SECTION
3.1(A).
"ISSUE" means, with respect to any Letter of Credit, to
issue or to extend the expiry of, or to renew or increase the
amount of, such Letter of Credit; and the terms "ISSUED,"
"ISSUING" and "ISSUANCE" have corresponding meanings.
"ISSUING BANKS" means BAI and BOA, together with any
replacement letter of credit issuer arising under SECTION
10.9, and "ISSUING BANK" means any one of them.
"JUDGMENT CURRENCY" has the meaning ascribed to such term
in SECTION 2.16 hereof.
"LANDLORD'S CONSENT" means a Landlord Waiver and License
Agreement substantially in the form of EXHIBIT C, with
appropriate insertions, or such other form as shall be
acceptable to the Agent, as it may be amended or modified from
time to time, pursuant to which any owner of a premises
located in the U.S.A. and at which Inventory is located
acknowledges the existence and priority of the Agent's Lien
thereon.
"L/C AMENDMENT APPLICATION" means an application form for
amendment of outstanding standby or commercial documentary
letters of credit as shall at any time be in use at any
Issuing Bank, as any Issuing Bank shall request.
"L/C APPLICATION" means an application form for issuances
of standby letters of credit (including, with respect to
Offshore Currency L/Cs, the application form attached hereto
as EXHIBIT I) as shall at any time be in use at any Issuing
Bank, as any Issuing Bank shall request.
"L/C COMMITMENT" means the commitment of the Issuing
Banks to Issue Letters of Credit, and the commitment of the
Lenders severally to participate in Letters of Credit from
time to time Issued under Article III, in an aggregate amount
not to exceed on any date the amount of $2,000,000, as the
same shall be reduced as a result of a reduction in the L/C
Commitment pursuant to SECTION 2.6; PROVIDED that the L/C
Commitment is a part of the Commitment, rather than a
separate, independent commitment.
"L/C OBLIGATIONS" means at any time the sum of the
Equivalent Amount in U.S. Dollars of (a) the aggregate undrawn
amount of all Letters of Credit then outstanding, plus (b) the
amount of all unreimbursed drawings under all Letters of
Credit.
"L/C-RELATED DOCUMENTS" means the Letters of Credit, the
L/C Applications, the L/C Amendment Applications and any other
document relating to any Letter of Credit, including any of an
Issuing Bank's standard form documents for letter of credit
issuances.
"LENDERS" means those banks whose names are set forth on
the signature pages hereof under the heading "Lenders" and any
assignees of the Lenders who hereafter become parties hereto
pursuant to and in accordance with SECTION 11.8 hereof; and
"LENDER" shall mean any one of the foregoing Lenders.
"LENDING OFFICE" means, as to the Agent or any Lender,
the office or offices of the Agent or such Lender specified as
its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office", as the case may be, on SCHEDULE 1, or such
other office or offices as the Lender may from time to time
notify the Borrower Representative and the Agent.
"LETTERS OF CREDIT" means any standby letters of credit
Issued by an Issuing Bank pursuant to ARTICLE III.
"LICENSE AGREEMENT" means that certain License Agreement
dated as of May 3, 1994, between Murex Diagnostics Corporation
(f/k/a International Murex Technologies Limited) and Abbott.
"LICENSE SECURITY AGREEMENT" means that certain License
Security Agreement of even date executed by Murex Diagnostics
Corporation in favor of the Agent, as the same may be amended,
restated or supplemented from time to time.
"LIEN" means any security interest, mortgage, deed of
trust, pledge, hypothecation, assignment, charge or deposit
arrangement, encumbrance, lien (statutory or other) or
preferential arrangement of any kind or nature whatsoever in
respect of any property (including those created by, arising
under or evidenced by any conditional sale or other title
retention agreement, the interest of a lessor under a capital
lease, any financing lease having substantially the same
economic effect as any of the foregoing, or the filing of any
financing statement naming the owner of the asset to which
such lien relates as debtor, under the Uniform Commercial Code
or any comparable law) and any contingent or other agreement
to provide any of the foregoing, but not including the
interest of a lessor under an operating lease.
"LOANS" means, collectively, the amounts advanced by the
Lenders to any Borrower under the Commitment including the
amount of Offshore Currency Loans advanced by the Offshore
Currency Lenders to any U.K. Borrower under the Offshore
Currency Commitment, not to exceed the amount of the
Commitment, and evidenced by the Notes, and may be a Base Rate
Loan or an Eurodollar Rate Loan (each, a "TYPE" of Loan).
"LOAN DOCUMENTS" means this Agreement, any Notes, the
Collateral Documents, the L/C-Related Documents, the Fee
Letters, any Foreign Exchange Agreements, and all other
documents delivered to the Agent, any Collateral Agent, the
Issuing Bank or any Lender in connection with the transactions
contemplated by this Agreement.
"MAJORITY LENDERS" means at any time of determination
(a) if there are less than three (3) Lenders hereunder, all of
the Lenders, and (b) if there are three (3) or more Lenders
hereunder, at least (i) two (2) Lenders and (ii) Lenders the
total of whose Loans outstanding equals or exceeds sixty
percent (60%) of the total principal amount of the Loans
outstanding hereunder (including the Equivalent Amount in U.S.
Dollars of the total principal amount of the Offshore Currency
Loans outstanding as of the most recent Computation Date).
"MARGIN STOCK" means "margin stock" as such term is
defined in Regulation G, T, U or X of the FRB.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse
change in, or a material adverse effect upon, the operations,
business, properties, condition (financial or otherwise) or
prospects of IMTC and its Subsidiaries taken as a whole; (b) a
material impairment of the ability of any Borrower to perform
under any Loan Document to which it is a party and to avoid
any Event of Default; or (c) a material adverse effect upon
(i) the legality, validity, binding effect or enforceability
against any Borrower or any Material Subsidiary of any Loan
Document, or (ii) the perfection or priority of any Lien
granted under any of the Collateral Documents.
"MATERIAL SUBSIDIARY" means those Subsidiaries of IMTC
listed on SCHEDULE 4 hereto, and any other Subsidiary of IMTC,
now or hereafter created, which (a) owns assets (not including
Capital Stock of any Affiliate of IMTC) having an aggregate
market value equal to or greater than five percent (5%) of all
assets of IMTC and its Subsidiaries on a consolidated basis,
or (b) has gross revenues which in the aggregate are equal to
or greater than five percent (5%) of the gross revenues of
IMTC and its Subsidiaries on a consolidated basis.
"MATURITY DATE" means November 12, 1999, or such earlier
date on which payment of all the Loans shall be due (whether
by acceleration or otherwise).
"MULTIEMPLOYER PLAN" means a "multiemployer plan", within
the meaning of Section 4001(a)(3) of ERISA, to which any
Borrower or any ERISA Affiliate makes, is making, or is
obligated to make contributions or, during the preceding three
calendar years, has made, or been obligated to make,
contributions.
"NOTES" mean those certain Promissory Notes of even date,
in the aggregate principal amount of the Commitment issued by
the Borrowers to each Lender, and in the aggregate principal
amount of the Offshore Currency Commitment issued by the
Borrowers to each Offshore Currency Lender, pursuant to
SECTION 2.2(B), in substantially the form of EXHIBITS D-1 and
D-2, respectively, and any extensions, renewals or amendments
to, or replacements of, the foregoing.
"NOTICE OF BORROWING" means a notice in substantially the
form of EXHIBIT E.
"NOTICE OF CONVERSION/CONTINUATION" means a notice in
substantially the form of EXHIBIT F.
"OBLIGATIONS" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan
Document owing by any Borrower to any Lender (or any Affiliate
thereof), the Agent (or any Affiliate thereof), the Issuing
Bank (or any Affiliate thereof), the FX Lender, or any
Indemnified Person, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or
to become due, now existing or hereafter arising.
"OBLIGOR" means each Borrower, any Guarantor, and each
other Person who is or shall become primarily or secondarily
liable on any of the Obligations, or on whose property the
Agent, any Collateral Agent, the Issuing Bank or any Lender
holds a Lien as security for any of the Obligations.
"OFFSHORE CURRENCY" means the British pound.
"OFFSHORE CURRENCY COMMITMENT" means the several
obligations of the Offshore Currency Lenders to advance the
aggregate sum of $8,000,000 to the U.K. Borrowers in Offshore
Currency pursuant to the terms hereof, as such obligations may
be reduced from time to time pursuant to the terms hereof.
"OFFSHORE CURRENCY COMMITMENT PERCENTAGES" means the
percentages in which the Offshore Currency Lenders are
severally bound to satisfy the Offshore Currency Commitment to
make Offshore Currency Loans to the U.K. Borrowers as shall be
in effect from time to time; such percentages as of the
Agreement Date are as set forth on SCHEDULE 2 hereto.
"OFFSHORE CURRENCY L/C" has the meaning set forth in
Section 3.1 hereof.
"OFFSHORE CURRENCY LENDERS" means those Lenders listed as
"Offshore Currency Lenders" on SCHEDULE 2 hereto and any
assignees of the Offshore Currency Lenders which hereafter
became parties hereto pursuant to and in accordance with
SECTION 11.8 hereof; and "OFFSHORE CURRENCY LENDER" shall mean
any one of the foregoing Offshore Currency Lenders.
"OFFSHORE CURRENCY LENDING OFFICE" means, with respect to
each Offshore Currency Lender, the office of such Offshore
Currency Lender designated as such on SCHEDULE 2 hereto or
such other office of such Offshore Currency Lender that such
Offshore Currency Lender may from time to time specify by
providing notice hereunder to the Borrower Representative and
the Agent.
"OFFSHORE CURRENCY LOAN" means a Loan that is advanced
in Offshore Currency that bears interest based on the
Eurodollar Rate by the Offshore Currency Lenders to any U.K.
Borrower and which shall be in a principal amount of (and
Equivalent Amount in an Offshore Currency of) at least
$500,000 and in an integral multiple of $100,000.
"ORIGINAL CURRENCY" has the meaning ascribed to such term
in SECTION 2.16 hereof.
"ORGANIZATION DOCUMENTS" means, for any corporation, the
certificate or articles of incorporation, the bylaws, any
certificate of determination or instrument relating to the
rights of preferred shareholders of such corporation, any
shareholder rights agreement, and all applicable resolutions
of the board of directors (or any committee thereof) of such
corporation.
"OTHER TAXES" means any present or future stamp, court or
documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made
hereunder or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to,
this Agreement or any other Loan Documents.
"PATENT PROPERTY" means, with respect to any Person:
(a) all of such Person's patents and patent applications
(including, without limitation, all patents and patent
applications in preparation for filing) throughout the world;
and (b) all patent licenses of such Person (whether as
licensee or licensor).
"PATENT SECURITY AGREEMENT" means that certain Patent
Security Agreement delivered pursuant to SECTION 8.14(F) and
dated November 12, 1996, by Murex Diagnostics Corporation in
favor of the Agent, as the same may be amended, modified or
supplemented from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation, or
any Governmental Authority succeeding to any of its principal
functions under ERISA.
"PENSION PLAN" means a pension plan (as defined in
Section 3(2) of ERISA) subject to Title IV of ERISA which any
Borrower sponsors, maintains, or to which it makes, is making,
or is obligated to make contributions, or in the case of a
multiple employer plan (as described in Section 4064(a) of
ERISA) has made contributions at any time during the
immediately preceding five (5) plan years.
"PERMITTED ACQUISITION" means any acquisition of all or
substantially all of the Capital Stock of a corporation, or
the ownership interests in any partnership or joint venture,
or the acquisition of all or SUBSTANTIALLY ALL of the
operating assets of any Person, or assets which constitute all
or substantially all of the assets of a division or a separate
or separable line of business of any Person, provided that:
(a) the corporation, partnership, joint venture,
operating assets or line of business acquired is in a
substantially similar line of business as the Borrowers,
(b) the corporation, joint venture or partnership in
which any interest is acquired shall not have had a net
operating loss for any month in the twelve-month period
preceding the applicable acquisition date,
(c) the purchase price (including the amount of all
liabilities assured by any Borrower or Guarantor) (i) of any
such acquisition shall not exceed $3,500,000 in the aggregate
or (ii) for all such acquisitions occurring after the
Agreement Date shall not exceed in the aggregate $7,500,000,
(d) no Event of Default or Default shall exist at the
time of such acquisition, and
(e) the Agent contemporaneously with the closing of such
acquisition shall have received (i) such documents and
instruments as may be necessary to grant or confirm to the
Agent or a Collateral Agent a Lien on or security interest in
all of the assets so acquired that consist of Inventory of, or
Accounts owing to, a Subsidiary located in the United States,
the United Kingdom or Barbados, and (ii) if a corporation or
partnership is acquired and not merged into a Borrower or
Guarantor, a guaranty of the Obligations executed by such
corporation or partnership in the form and substance
satisfactory to the Agent.
"PERMITTED LIENS" has the meaning specified in
SECTION 8.1.
"PERSON" means an individual, partnership, corporation,
limited liability company, business trust, joint stock
company, trust, unincorporated association, joint venture or
Governmental Authority.
"PLAN" means an employee benefit plan (as defined in
Section 3(3) of ERISA) which any Borrower sponsors or
maintains or to which any Borrower makes, is making, or is
obligated to make contributions and includes any Pension Plan.
"REAL PROPERTY" of any Person means the real property
owned by such Person, including the Real Property of any
Borrower identified on SCHEDULE 6.15 hereto.
"REFERENCE LENDER" means Bank of America National Trust
and Savings Association.
"RELATED CONTRACT" means any security agreement,
guaranty, lease or other contract securing or otherwise
relating to, evidencing or arising out of any Account,
Contract Right, General Intangible, chattel paper, documents
or instruments.
"REPORTABLE EVENT" means, any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder, other
than any such event for which the 30-day notice requirement
under ERISA has been waived in regulations issued by the PBGC.
"REQUIREMENT OF LAW" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or
determination of an arbitrator or of a Governmental Authority,
in each case applicable to or binding upon the Person or any
of its property or to which the Person or any of its property
is subject.
"RESPONSIBLE OFFICER" means, with respect to any
Borrower, the president, chief executive officer, the chief
operating officer, or the chief financial officer thereof, or
any other officer having substantially the same authority.
"RESULTING CURRENCY" has the meaning ascribed to such
term in SECTION 2.16 hereof.
"REVOLVING COMMITMENT" has the meaning set forth in
SECTION 2.1 hereof.
"SAME DAY FUNDS" means (i) with respect to disbursements
and payments in U.S. Dollars, immediately available funds, and
(ii) with respect to disbursements and payments in an Offshore
Currency, same day or other funds as may be determined by the
Agent to be customary in the place of disbursements or payment
for the settlement of international banking transactions in
the Offshore Currency.
"SECURITY AGREEMENTS" means that certain Security
Agreement of even date herewith executed by all of the
Borrowers (other than the U.K. Borrowers and the Barbados
Borrowers) in favor of the Collateral Agent, that certain
Debenture executed by the Barbados Borrowers in favor of the
Collateral Agent, and that certain Deed of Charge of even date
herewith executed by the U.K. Borrowers in favor of the
Collateral Agent, as the same may be amended, modified or
supplemented from time to time, and "SECURITY AGREEMENT" means
any of the foregoing.
"SEC" means the Securities and Exchange Commission, or
any Governmental Authority succeeding to any of its principal
functions.
"SOLVENT" means, as to any Person at any time, that
(a) the fair value of the property of such Person is greater
than the amount of such Person's liabilities (including
disputed, contingent and unliquidated liabilities) as such
value is established and liabilities evaluated for purposes of
the Bankruptcy Code and, in the alternative, for purposes of
the Uniform Fraudulent Transfer Act; (b) the present fair
saleable value of the property of such Person is not less than
the amount that will be required to pay the probable liability
of such Person on its debts as they become absolute and
matured; (c) such Person is able to realize upon its property
and pay its debts and other liabilities (including disputed,
contingent and unliquidated liabilities) as they mature in the
normal course of business; (d) such Person does not intend to,
and does not believe that it will, incur debts or liabilities
beyond such Person's ability to pay as such debts and
liabilities mature; and (e) such Person is not engaged in
business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property
would constitute unreasonably small capital.
"SPOT RATE" for a currency means the rate quoted by the
Agent as the spot rate for the purchase by the Agent of such
currency with another currency through its FX Trading Office
at approximately 9:00 a.m. (New York time) on the date two
Business Days prior to the date as of which the foreign
exchange computation is made.
"STOCK PLEDGE AGREEMENTS" means that certain Stock Pledge
Agreement, that certain Declaration of Pledge and that certain
Share Pledge Agreement, all being of even date herewith and
executed by IMTC Holdings B.V. in favor of the Agent, as the
same may be amended, supplemented or otherwise modified from
time to time.
"SUBSIDIARY" of a Person means any corporation,
association, partnership, limited liability company, joint
venture or other business entity of which more than 50% of the
voting stock , membership interests or other equity interests
(in the case of Persons other than corporations), is owned or
controlled directly or indirectly by the Person, or one or
more of the Subsidiaries of the Person, or a combination
thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of
IMTC; provided, however, references in ARTICLE VI hereof to a
"Subsidiary" shall not include Murex Medical Research Limited,
Technology License Company Limited or Specialist Diagnostics
Limited.
"SURETY INSTRUMENTS" means with respect to a Person all
letters of credit (including standby and commercial), banker's
acceptances, shipside bonds, surety bonds and similar
instruments of such Person.
"TAXES" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees,
withholdings or similar charges, and all liabilities with
respect thereto, excluding, in the case of each Lender and the
Agent, respectively, taxes imposed on or measured by its net
income by the jurisdiction (or any political subdivision
thereof) under the laws of which such Lender or the Agent, as
the case may be, is organized or maintains a lending office.
"TYPE" has the meaning specified in the definition of
"Loan."
"UCC" means the Uniform Commercial Code as in effect in
the State of Georgia from time to time or any other applicable
jurisdiction.
"U.K. BORROWERS" means IMTC Holdings (UK) Limited and
Murex Biotech Limited.
"UNFUNDED PENSION LIABILITY" means the excess of a Plan's
benefit liabilities under Section 4001(a)(16) of ERISA, over
the current value of that Plan's assets, determined in
accordance with the assumptions used for funding the Pension
Plan pursuant to Section 412 of the Code for the applicable
plan year.
"UNITED STATES" and "U.S." each means the United States
of America.
"U.S. DOLLARS" or "U.S.$" means lawful money of the
United States of America.
"VALUE OF THE ELIGIBLE INVENTORY" means, at any
particular date, the LOWER of the fair market value of the
Eligible Inventory or its cost, valued in accordance with the
"First-In, First-Out" method of accounting.
"WHOLLY-OWNED SUBSIDIARY" means any corporation in which
(other than directors' qualifying shares required by law) 100%
of the Capital Stock of each class having ordinary voting
power, and 100% of the Capital Stock of every other class, in
each case, at the time as of which any determination is being
made, is owned, beneficially and of record, by any Borrower,
or by one or more of the other Wholly-Owned Subsidiaries, or
both.
Each definition of an agreement in this Article 1 shall
include such agreement as modified, amended, or supplemented from time to
time with the prior written consent of the Borrower Representative and the
Majority Lenders, except as provided in SECTION 11.1 hereof. Except where
the context otherwise requires, definitions imparting the singular shall
include the plural and vice versa. Except where otherwise specifically
restricted, reference to a party to a Loan Document includes that party and
its successors and assigns. All terms used herein which are defined in
Article 9 of the Uniform Commercial Code in effect in the State of Georgia
on the date hereof and which are not otherwise defined herein shall have
the same meanings herein as set forth therein.
All accounting terms used herein without definition shall be
used as defined under GAAP.
For all purposes of this Agreement (other than for purposes of
the preparation of any financial statements delivered pursuant hereto), the
equivalent of any Offshore Currency or other currency, shall be determined
at the Spot Rate and all covenants shall be calculated in the Equivalent
Amount of U.S. Dollars.
References herein to "fiscal year" shall mean the fiscal year
of IMTC and references herein to "fiscal quarter" shall mean the fiscal
quarters of IMTC.
ARTICLE II.
THE LOANS
2.1 AMOUNTS AND TERMS OF COMMITMENT. Each Lender severally
agrees, on the terms and conditions hereinafter set forth, to make Loans to
the Borrowers from time to time on any Business Day during the period from
the date hereof to the Maturity Date, in an aggregate amount (determined in
U.S. Dollars, including, when applicable, in the Equivalent Amount of any
requested and outstanding Offshore Currency Loans pursuant to subsection
2.5(a)) not to exceed at any time the lesser of (a) the Commitment of such
Lender as set forth in the definition of Commitment Percentages in SECTION
1 hereof (such amount as the same may be reduced pursuant to SECTION 2.6 or
as a result of one or more assignments pursuant to SECTION 11.8, the
Lender's "REVOLVING COMMITMENT"), (b) the Borrowing Base, and (c) the
Available Loan Commitment; PROVIDED, HOWEVER, that, after giving effect to
any Loan, the aggregate principal amount (determined in U.S. Dollars,
including, when applicable, in the Equivalent Amount of any requested and
outstanding Offshore Currency Loans pursuant to SECTION 2.5(A)) of all
outstanding Loans shall not exceed the Commitment; AND PROVIDED FURTHER
that, after giving effect to any Offshore Currency Loans, the Equivalent
Amount of the aggregate principal amount of all outstanding Offshore
Currency Loans shall not exceed the Offshore Currency Commitment. Within
the limits of each Lender's Revolving Commitment, and subject to the other
terms and conditions hereof, the Borrowers may borrow under this SECTION
2.1, prepay pursuant to SECTION 2.7 and reborrow pursuant to this SECTION
2.1.
2.2 LOAN ACCOUNTS.
(a) The Loans made by each Lender and the Letters of
Credit issued by the Issuing Bank shall be evidenced by one or more
accounts or records maintained by such Lender or Issuing Bank, as the case
may be, in the ordinary course of business. The accounts or records
maintained by the Agent, the Issuing Bank and each Lender shall be prima
facie evidence of the amount of the Loans made by the Lenders to the
Borrowers and the Letters of Credit Issued for the account of any Borrower,
and the interest and payments thereon. Any failure so to record or any
error in doing so shall not, however, limit or otherwise affect the
obligation of any Borrower hereunder to pay any amount owing with respect
to the Loans or any Letter of Credit.
(b) The Loans made by each Lender shall be evidenced by
a Note payable to the order of such Lender in an amount equal to its
Revolving Commitment. Each such Lender shall endorse on the schedules
annexed to its Note(s) the date, amount and maturity of each Loan made by
it and the amount of each payment of principal made by the Borrowers with
respect thereto. Each such Lender is irrevocably authorized by each
Borrower to endorse its Note(s) and each Lender's record shall be prima
facie evidence of the amount of such Loans; PROVIDED, HOWEVER, that the
failure of a Lender to make, or an error in making, a notation thereon with
respect to any Loan shall not limit or otherwise affect the obligations of
any Borrower hereunder or under any such Note to such Lender.
2.3 MANNER OF BORROWING AND DISBURSEMENT.
(a) Each advance of a Loan shall be made upon the
Borrower Representative's irrevocable written notice delivered to the Agent
in accordance with SECTION 11.2 hereof in the form of a Notice of Borrowing
(which notice must be received by the Agent prior to 12:00 noon (New York
time)) (i) three Business Days prior to the requested advance date, in the
case of Offshore Currency Loans; (ii) three Business Days prior to the
requested advance date, in the case of Eurodollar Rate Loans in U.S.
Dollars; and (iii) one Business Day prior to the requested advance date, in
the case of Base Rate Loans, specifying:
(A) the amount of the Loan, which shall be in an
aggregate minimum principal amount of $500,000 or any
multiple of $100,000 in excess thereof (or the Equivalent
Amount thereof in an Offshore Currency);
(B) the requested advance date, which shall be a
Business Day;
(C) whether the Loan is to be a Eurodollar Rate
Loan or a Base Rate Loan;
(D) the duration of the Interest Period applicable
to such Loans included in such notice. If the Notice of
Borrowing shall fail to specify the duration of the
Interest Period for any Eurodollar Rate Loan, such
Interest Period shall be three months; and
(E) whether the Loan is to be an Offshore Currency
Loan; and
(F) the name of the Borrower on behalf of whom the
Loan is requested,
PROVIDED, HOWEVER, that with respect to Loans to be made on the Agreement
Date, the Notice of Borrowing shall be delivered to the Agent not later
than 12:00 a.m. (New York time) on the Agreement Date and such Borrowing
will consist of Base Rate Loans only.
(b) The Equivalent Amount of any Loan in an Offshore
Currency will be determined by the Agent for such Loan on the Computation
Date therefor in accordance with SECTION 2.5(A). Upon receipt of the
Notice of Borrowing, the Agent will promptly notify each Offshore Currency
Lender thereof and of the amount of such Offshore Currency Lender's
Offshore Currency Commitment Percentage of the Loan.
(c) Each Lender will make the amount of its Commitment
Percentage of the Loan (other than an Offshore Currency Loan), available to
the Agent for the account of the applicable Borrower at the Agent's Office
on the advance date requested by the Borrower Representative in Same Day
Funds by 12:00 noon (New York time). The proceeds of all such Loans will
then be made available to the applicable Borrower by the Agent by
transferring the amounts so made available by wire transfer pursuant to the
instructions of the Borrower Representative, or, in the absence of such
instructions, crediting the amounts so made available to the account of the
applicable Borrower maintained with the Agent or an Affiliate of the Agent.
Each Offshore Currency Lender will make the amount of its Commitment
Percentage of each Offshore Currency Loan available for the account of the
applicable Borrower by transferring such amount by wire transfer pursuant
to the instruction of the Borrower Representative in Same Day Funds by 3:00
p.m. (London time).
(d) Unless the Majority Lenders shall otherwise agree,
during the existence of a Default or an Event of Default, neither the
Borrower Representative nor any other Borrower may elect to have a Loan
made as, or converted into or continued as, an Eurodollar Rate Loan or an
Offshore Currency Loan.
2.4 CONVERSION AND CONTINUATION ELECTIONS.
(a) The Borrower Representative may upon irrevocable
written notice to the Agent in accordance with SECTION 2.4(B):
(1) elect to convert on any Business
Day, any Base Rate Loans (or any part thereof in
an amount not less than $500,000, or that is in an
integral multiple of $100,000 in excess thereof)
into Eurodollar Rate Loans in U.S. Dollars or;
(2) elect to convert on the last day of the
applicable Interest Period any Eurodollar Rate Loans in U.S.
Dollars having Interest Periods maturing on such day (or any
part thereof in an amount not less than $500,000, or that is
in an integral multiple of $100,000 in excess thereof) into
Base Rate Loans; or
(3) elect to renew on the last day of the current
Interest Period any Eurodollar Rate Loan of any Borrower
(whether in U.S. Dollars or in any Offshore Currency) maturing
at the end of such Interest Period (or any part thereof in an
amount not less than $500,000) (or the Equivalent Amount
thereof in an Offshore Currency as determined as of the most
recent Computation Date); or that is in an integral multiple
$100,000 in excess thereof (or the Equivalent Amount thereof
in an Offshore Currency as determined as of the most recent
Computation Date);
PROVIDED, that if the aggregate amount of Eurodollar Rate Loans denominated
in U.S. Dollars comprising part of the same Borrowing shall have been
reduced, by payment, prepayment, or conversion of part thereof to be less
than $500,000, such Eurodollar Rate Loans denominated in U.S. Dollars shall
automatically convert into Base Rate Loans, and on and after such date the
right of the Borrower Representative to continue such Loans as, and convert
such Loans into, Eurodollar Rate Loans, shall terminate.
(b) The Borrower Representative shall deliver a Notice
of Conversion/Continuation in accordance with SECTION 11.2 to be received
by the Agent not later than 12:00 noon (New York time) at least (i) three
Business Days in advance of the Conversion Date or continuation date, if
the Loans are to be converted into or continued as Eurodollar Rate Loans
denominated in U.S. Dollars; (ii) three Business Days in advance of the
continuation date, if the Loans are to be continued as Offshore Currency
Loans; or (iii) one Business Day in advance of the Conversion Date, if the
Loans are to be converted into Base Rate Loans, specifying:
(A) the proposed Conversion Date or continuation
date;
(B) the aggregate amount of Loans to be converted
or renewed;
(C) the nature of the proposed conversion or
continuation; and
(D) the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period
applicable to Eurodollar Rate Loans in U.S. Dollars, the Borrower
Representative has failed to select timely a new Interest Period to be
applicable thereto, or upon the request of the Majority Lenders if any
Default or Event of Default shall then exist, the Borrower Representative
shall be deemed to have elected to convert such Eurodollar Rate Loans into
Base Rate Loans effective as of the expiration date of such current
Interest Period. If the Borrower Representative has failed to select a new
Interest Period to be applicable to Offshore Currency Loans prior to the
fifth Business Day in advance of the expiration date of the current
Interest Period applicable thereto as provided in SECTION 2.4(B), or upon
the request of the Majority Lenders if any Default or Event of Default
shall then exist, the Borrower Representative shall be deemed to have
elected to convert or continue, as the case may be, such Offshore Currency
Loans into an Offshore Currency Loan with a one month Interest Period.
(d) Upon receipt of a Notice of Conversion/
Continuation, the Agent will promptly notify each Lender thereof, or, if no
timely notice is provided by the Borrower Representative, the Agent will
promptly notify each Lender of the details of any automatic conversion.
All conversions and continuations shall be made pro rata according to the
respective outstanding principal amounts of the Loans with respect to which
the notice was given held by each Lender.
2.5 UTILIZATION OF OFFSHORE CURRENCY COMMITMENT. The Agent
will determine the Equivalent Amount with respect to any (i) Loan comprised
of Offshore Currency Loans as of the requested advance date, (ii)
outstanding Offshore Currency Loans as of the last Business Day of each
month, and (iii) outstanding Offshore Currency Loans as of any
redenomination date pursuant to this SECTION 2.5 or SECTION 4.5 (each such
date under clauses (i) through (iii) a "COMPUTATION DATE").
2.6 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENT. The
Borrower Representative may, upon not less than three Business Days' prior
notice to the Agent, terminate the Commitment or permanently reduce the
Commitment by an aggregate minimum amount of $1,000,000 or any multiple of
$1,000,000 in excess thereof; PROVIDED that no such reduction or
termination shall be permitted if, after giving effect thereto and to any
prepayments of the Loans made on the effective date thereof, (a) the then
outstanding principal amount of the Loans (including the Equivalent Amount
of Offshore Currency Loans) would exceed the amount of the Commitment then
in effect, (b) the Effective Amount of all Loans and L/C Obligations
together would exceed the amounts of the Commitment then in effect, or (c)
the Effective Amount of all L/C Obligations then outstanding would exceed
the L/C Commitment; PROVIDED, FURTHER, that once reduced in accordance with
this SECTION 2.6, the Commitment may not be increased. Any reduction of
the Commitment shall be applied to each Lender's Revolving Commitment in
accordance with such Lender's Commitment Percentage. If and to the extent
specified by the Borrower Representative in the notice to the Agent, some
or all of the reduction of the Commitment shall be applied to reduce the
L/C Commitment or the Offshore Currency Commitment. All accrued commitment
and letter of credit fees to, but not including, the effective date of any
reduction or termination of the Commitment, shall be paid on the effective
date of such reduction or termination of any such request. The Agent will
promptly notify the Lenders and, if applicable, the Issuing Banks of any
reduction of the Commitment by the Borrower hereunder.
2.7 OPTIONAL PREPAYMENTS. Subject to SECTION 4.4, the
Borrower Representative may, at any time or from time to time, (a) upon at
least three Business Days' notice to the Agent with respect to Eurodollar
Rate Loans denominated in U.S. Dollars, (b) upon at least three Business
Day's notice to the Agent with respect to Offshore Currency Loans, and (c)
upon notice to the Agent at any time prior to the requested prepayment with
respect to Base Rate Loans, prepay Loans in whole or in part, in amounts of
$500,000 (or, in the case of Offshore Currency Loans, the Equivalent Amount
thereof in Offshore Currency as determined as of the most recent
Computation Date with respect thereto) or any multiple of $100,000 (or, in
the case of Offshore Currency Loans, the Equivalent Amount thereof in an
Offshore Currency as determined as of the most recent Computation Date with
respect thereto) in excess thereof. The Borrower Representative shall
deliver a notice of prepayment in accordance with SECTION 11.1 to be
received by the Agent not later than 12:00 noon (New York time). If such
notice is given by the Borrower Representative, the Borrowers shall make
such prepayment and the payment amount specified in such notice shall be
due and payable on the date specified therein, together with accrued
interest to each such date on the amount prepaid and any amounts required
pursuant to SECTION 4.4.
2.8 MANDATORY REPAYMENTS.
(a) If at any time and for any reason there shall exist
a Borrowing Base Deficiency, the Borrowers shall immediately pay to the
Agent an amount equal to the Borrowing Base Deficiency, which payment shall
constitute a mandatory repayment of the Loans hereunder.
(b) If on any date the Effective Amount of L/C
Obligations exceeds the L/C Commitment, the Borrowers shall Cash
Collateralize on such date the outstanding Letters of Credit in an amount
equal to the excess of the maximum amount then available to be drawn under
the Letters of Credit over the Aggregate L/C Commitment. Subject to
SECTION 4.4, if on any date after giving effect to any Cash
Collateralization made on such date pursuant to the preceding sentence, the
Effective Amount of all Loans then outstanding plus the Effective Amount of
all L/C Obligations exceeds the Commitment, the Borrowers shall
immediately, and without notice or demand, prepay the outstanding principal
amount of the Loans by an amount equal to the applicable excess.
(c) Subject to SECTION 4.4, if on any Computation Date
the Agent shall have determined that (i) the aggregate principal amount
(including, in the case of Offshore Currency Loans, the Equivalent Amount
thereof as determined as of the most recent Computation Date with respect
thereto) of all Loans shall exceed the Commitment by any amount, or (ii)
the Equivalent Amount of the aggregate principal amount of all Offshore
Currency Loans shall exceed the Offshore Currency Commitment by any amount,
in either case due to a change in applicable rates of exchange between U.S.
Dollars and the Offshore Currency, THEN the Agent shall give notice to the
Borrower Representative that a prepayment is required under this
SECTION 2.8, and the Borrowers shall thereupon make a prepayment of Loans
such that the aggregate principal amount (including, in the case of
Offshore Currency Loans, the Equivalent Amount thereof as determined as of
the most recent Computation Date with respect thereto) of all Loans will,
after giving effect to such prepayment, be equal to or less than the
Commitment and the Equivalent Amount of the aggregate principal amount of
all outstanding Offshore Currency Loans will, after giving effect to such
prepayment, be equal to or less than the Offshore Currency Commitment.
(d) Except as provided in SECTION 2.16(B), any
prepayments pursuant to this SECTION 2.8 (other than pursuant to SECTION
2.8(C)(II)) shall be applied first to any Base Rate Loans then outstanding,
then to Eurodollar Rate Loans in U.S. Dollars with the shortest Interest
Periods remaining, and then to Offshore Currency Loans with the shortest
Interest Periods remaining. Prepayments required to be made pursuant to
SECTION 2.8(C)(II) shall be applied first to Offshore Currency Loans in the
order of maturity, then to any Base Rate Loans outstanding, and then to
Eurodollar Rate Loans in U.S. Dollars with the shortest Interest Periods
remaining. The Borrowers shall pay, together with each prepayment under
this SECTION 2.8, accrued interest on the amount prepaid and any amounts
required pursuant to SECTION 4.4.
2.9 REPAYMENT. Payment of all Obligations then outstanding
shall be due and payable on the Maturity Date.
2.10 INTEREST. Interest on Loans, subject to adjustment as
set forth in SECTION 2.10(B) hereof, shall be payable as follows:
(a) Interest on Loans shall be payable in arrears on
each Interest Payment Date. Interest shall also be paid on the date of any
prepayment of Eurodollar Rate Loans under SECTION 2.7 or 2.8 for the
portion of the Loans so prepaid and upon payment (including prepayment) in
full thereof and, during the existence of any Event of Default, interest
shall be paid on demand of the Agent at the request or with the consent of
the Majority Lenders. Interest on Loans then outstanding shall also be due
and payable on the Maturity Date. Interest shall accrue and be payable on
each Base Rate Loan at the simple per annum interest rate equal to the Base
Rate. Interest shall accrue and be payable on each Eurodollar Rate Loan at
a rate per annum equal to (A) the Eurodollar Rate applicable to such
Eurodollar Rate Loan, PLUS (B) 2.5%.
(b) Upon the occurrence of an Event of Default interest
on the outstanding Obligations shall accrue at the Default Rate from the
date of such Event of Default. Interest accruing at the Default Rate shall
be payable on demand at the request of the Majority Banks and in any event
on the Maturity Date and shall accrue until the earliest to occur of (i)
waiver in writing by the Majority Lenders of the applicable Event of
Default, (ii) agreement by the Majority Lenders to rescind the charging of
interest at the Default Rate, or (iii) payment in full of the Obligations.
The Lenders shall not be required to (i) accelerate the maturity of the
Loans, or (ii) exercise any other rights or remedies under the Loan
Documents in order to charge interest hereunder at the Default Rate.
(c) Anything herein to the contrary notwithstanding, the
obligations of the Borrowers to any Lender hereunder shall be subject to
the limitation that payments of interest shall not be required for any
period for which interest is computed hereunder, to the extent (but only to
the extent) that contracting for or receiving such payment by such Lender
would be contrary to the provisions of any law applicable to such Lender
limiting the highest rate of interest that may be lawfully contracted for,
charged or received by such Lender, and in such event the Borrowers shall
pay such Lender interest at the highest rate permitted by applicable law.
(d) If the Borrower Representative fails to give the
Agent timely notice of its selection of an Eurodollar Rate Basis, or if for
any reason a determination of an Eurodollar Rate Basis for any Loan is not
timely concluded, the Base Rate shall apply to such Loan.
(e) At no time may the number of outstanding Eurodollar
Rate Loans exceed ten (10).
2.11 FEES.
(a) The Borrowers shall pay an agency fee to the Agent
for the Agent's own account, as required by that certain letter agreement
("FEE LETTER") between the Borrowers and the Agent dated as of the
Agreement Date.
(b) The Borrowers shall pay to the Agent for the account
of the Lenders a commitment fee on the average daily unused portion of the
Commitment, computed on a monthly basis in arrears on the last Business Day
of each month based upon the daily utilization for that month as calculated
by the Agent, equal to .25% per annum. Such commitment fee shall accrue
from the Agreement Date to the Maturity Date and shall be due and payable
monthly in arrears on the last Business Day of each month commencing on
November 30, 1996 through the Maturity Date, with the final payment to be
made on the Maturity Date; PROVIDED that, in connection with any reduction
or termination of the Commitment under SECTION 2.6, the accrued commitment
fee calculated for the period ending on such date shall also be paid on the
date of such reduction or termination, with the following monthly payment
being calculated on the basis of the period from such reduction or
termination date to such monthly payment date. The commitment fees
provided in this Section shall accrue at all times after the above-
mentioned commencement date, including at any time during which one or more
conditions in ARTICLE VI are not met. For purposes of determining
utilization of the Commitment in order to calculate the commitment fee due
under this Section, the amount of any outstanding Offshore Currency Loan on
any date shall be determined based upon the Equivalent Amount in U.S.
Dollars as of the most recent Computation Date with respect to such
Offshore Currency Loan. The Agent shall allocate and deliver to the
Lenders the commitment fee paid hereunder in accordance with that certain
letter agreement between the Lenders dated as of November 12, 1996.
2.12 COMPUTATION OF FEES AND INTEREST. All computations of
interest on Offshore Currency Loans shall be made on the basis of a 365-day
year and actual days elapsed. All other computations of fees and interest
hereunder shall be made on the basis of a 360-day year and actual days
elapsed (which results in more interest being paid than if computed on the
basis of a 365-day year). Interest and fees shall accrue during each
period during which interest or such fees are computed from the first day
thereof to the last day thereof. Each determination of an interest rate by
the Agent shall be prima facie evidence of such rate. The Agent will, with
reasonable promptness, notify the Borrower Representative and the Lenders
of each determination of an Eurodollar Rate Basis and each determination of
the Equivalent Amount of outstanding Offshore Currency Loans on any
Computation Date; PROVIDED that any failure to do so shall not relieve the
Borrowers of any liability hereunder or provide the basis for any claim
against the Agent. Any change in the interest rate on a Loan resulting
from a change in the Offshore Reserve Percentage shall become effective as
of the opening of business on the day on which such change in Offshore
Reserve Percentage becomes effective. The Agent will notify the Borrower
Representative and the Lenders of the effective date and the amount of such
change, PROVIDED that any failure to do so shall not relieve the Borrowers
of any liability hereunder or provide the basis for any claim against the
Agent. Each determination of an Equivalent Amount by the Agent shall be
prima facie evidence of such Equivalent Amount.
2.13 PAYMENTS BY THE BORROWERS.
(a) All payments (including prepayments) to be made by
the Borrowers on account of principal, interest, fees and other amounts
required hereunder shall be made without set-off, recoupment or
counterclaim; shall, except with respect to Offshore Currency Loans and as
otherwise expressly provided herein, be made to the Agent for the ratable
account of the Lenders at the Agent's Office, and, with respect to
principal of, interest on, and any other amounts relating to, any Offshore
Currency Loan, shall be made in the Offshore Currency and shall be made
directly to the Offshore Currency Lenders at their respective accounts
listed on SCHEDULE 1 hereto, and, with respect to all other amounts payable
hereunder, shall be made in U.S. Dollars. Such payments shall be made in
Same Day Funds, and (i) in the case of Offshore Currency payments, no later
than such time on the dates specified herein as may be determined by the
Agent or the Offshore Currency Lender to be necessary for such payment to
be credited on such date in accordance with normal banking procedures in
the place of payment, and (ii) in the case of any U.S. Dollar payments, no
later than 12:00 noon (New York time) on the date specified herein. The
Agent will promptly distribute to each Lender (other than Offshore Currency
Lenders) its Commitment Percentage (or other applicable share as expressly
provided herein) of such principal, interest, fees or other amounts, in
like funds as received. Any payment which is received by the Agent later
than 2:00 p.m. (New York time) or later than the time specified by the
Agent as provided in clause (i) above (in the case of Offshore Currency
payments), shall be deemed to have been received on the immediately
succeeding Business Day and any applicable interest or fee shall continue
to accrue. Each Offshore Currency Lender shall promptly notify the Agent
if it does not receive any payment from a Borrower hereunder when such
payment is due.
(b) Whenever any payment hereunder shall be stated to be
due on a day other than a Business Day, such payment shall be made on the
next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or fees, as the case may be;
subject to the provisions set forth in the definition of "Interest Period"
herein.
(c) Unless the Agent shall have received notice from the
Borrower Representative prior to the date on which any payment is due to
the Lenders (other than payments relating to any Offshore Currency Loan,
which payments shall be made by the Borrower directly to the Offshore
Currency Lenders in accordance with SECTION 2.13(A) above) hereunder that
the Borrowers will not make such payment in full as and when required
hereunder, the Agent may assume that the Borrowers have made such payment
in full to the Agent on such date in Same Day Funds and the Agent may (but
shall not be so required), in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent the Borrowers shall not have
made such payment in full to the Agent, each Lender shall repay to the
Agent on demand such amount distributed to such Lender, together with
interest thereon for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the Agent, at
the Federal Funds Rate as in effect for each such day.
2.14 PAYMENTS BY THE LENDERS.
(a) Unless the Agent shall have received notice from a
Lender on the Agreement Date or, with respect to each borrowing of a Loan
denominated in U.S. Dollars after the Agreement Date, at least one (1)
Business Day prior to the date of any such proposed Loan that such Lender
will not make available to the Agent as and when required hereunder for the
account of the Borrowers the amount of that Lender's Commitment Percentage
of the Loan, the Agent may assume that each Lender has made such amount
available to the Agent in Same Day Funds on the advance date and the Agent
may (but shall not be so required), in reliance upon such assumption, make
available to any Borrower on such date a corresponding amount. If and to
the extent any Lender shall not have made its full amount available to the
Agent in Same Day Funds and the Agent in such circumstances has made
available to any Borrower such amount, that Lender shall on the next
Business Day following the date of such advance make such amount available
to the Agent, together with interest at the Federal Funds Rate for and
determined as of each day during such period. A notice of the Agent
submitted to any Lender with respect to amounts owing under this SECTION
2.14(A) shall be conclusive, absent manifest error. If such amount is so
made available, such payment to the Agent shall constitute such Lender's
Loan on the date of advance for all purposes of this Agreement. If such
amount is not made available to the Agent on the next Business Day
following the date of such advance, the Agent shall notify the Borrower
Representative of such failure to fund and, upon demand by the Agent, the
Borrowers shall pay such amount to the Agent for the Agent's account,
together with interest thereon for each day elapsed since the date of such
advance, at a rate per annum equal to the interest rate applicable at the
time to the Loans comprising such advance. This paragraph (a) shall only
apply to Loans denominated in U.S. Dollars. Each Offshore Currency Lender
will advance each Offshore Currency Loan directly to the applicable
Borrower, in accordance with SECTION 2.13 hereof, and will promptly deliver
a notice confirming such Loan to the Agent.
(b) The failure of any Lender to make any Loan on any
date of borrowing shall not relieve any other Lender of any obligation
hereunder to make a Loan on the date of such borrowing, but no Lender shall
be responsible for the failure of any other Lender to make the Loan to be
made by such other Lender on the date of any borrowing. In the event that,
at any time when the Borrowers are not in Default, a Lender for any reason
(other than the failure of the Borrowers to satisfy the conditions herein
to an advance of a Loan or the Agent's failure to give notice of such
advance as required hereunder) fails or refuses to fund its portion of a
Loan, then, until such time as such Lender has funded its portion of such
Loan, or all other Lenders have received payment in full (whether by
payment or repayment) of the principal and interest due in respect of such
Loan, such non-funding Lender shall (i) have no right to vote regarding any
issue on which voting is required or advisable under this Agreement or any
other Loan Document, and (ii) shall be entitled to receive no payments of
principal, interest or fees from any Borrower in respect of such Loan which
such Lender failed to make.
2.15 SHARING OF PAYMENTS, ETC. If, other than as expressly
provided elsewhere herein, (a) any Lender shall obtain on account of any
Loans in U.S. Dollars made by it any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) in
excess of its Commitment Percentage of payments on account of the Loans in
U.S. Dollars obtained by all the Lenders, or (b) any Offshore Currency
Lender shall obtain on account of the Offshore Currency Loans made by it
any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Offshore Currency
Commitment Percentage of payments on account of Offshore Currency Loans
obtained by all Offshore Currency Lenders, such Lender or Offshore Currency
Lender, as the case may be, shall forthwith (i) notify the Agent of such
fact, and (ii) purchase from the other Lenders or Offshore Currency
Lenders, as the case may be, such participations in the related Loans made
by them as shall be necessary to cause such purchasing Lender or Offshore
Currency Lender, as the case may be, to share the excess payment ratably
with each of them; PROVIDED, HOWEVER, that if all or any portion of such
excess payment is thereafter recovered from the purchasing Lender, or
Offshore Currency Lender, as the case may be, such purchase shall to that
extent be rescinded and each other Lender or Offshore Currency Lender, as
the case may be, shall repay to the purchasing Lender or Offshore Currency
Lender, as the case may be, the purchase price paid therefor, together with
an amount equal to such paying Lender's Commitment Percentage or Offshore
Currency Lender's Offshore Currency Commitment Percentage, as the case may
be, (according to the proportion of (i) the amount of such paying Lender's
or Offshore Currency Lender's required repayment to (ii) the total amount
so recovered from the purchasing Lender or Offshore Currency Lender, as the
case may be), of any interest or other amount paid or payable by the
purchasing Lender or Offshore Currency Lender, as the case may be, in
respect of the total amount so recovered. Each Borrower agrees that any
Lender or Offshore Currency Lender, as the case may be, so purchasing a
participation from another Lender or Offshore Currency Lender, as the case
may be, pursuant to this SECTION 2.15 may, to the fullest extent permitted
by law, exercise all its rights of payment (including the right of set-off)
with respect to such participation as fully as if such Lender or Offshore
Currency Lender, as the case may be, were the direct creditor of such
Borrower in the amount of such participation. The Agent will keep records
(which shall be conclusive and binding in the absence of manifest error) of
participations purchased pursuant to this SECTION 2.15 and will in each
case notify the Lenders or Offshore Currency Lender, as the case may be,
following any such purchases or repayments.
2.16 APPLICATION OF PAYMENTS.
(a) Payments made to the Agent, Collateral Agent, the Issuing
Bank or the Lenders, or any of them, or otherwise received by the Agent,
Collateral Agent, the Issuing Bank or the Lenders, or any of them (from
realization on collateral for the Obligations or otherwise), shall be
distributed in the following order of priority: FIRST, to the costs and
expenses (including Attorneys' Costs), if any, incurred by the Agent, any
Collateral Agent, any Lender or the Issuing Bank in the collection of such
amounts under this Agreement or of the Loan Documents, including, without
limitation, any costs incurred in connection with the sale or disposition
of any Collateral; SECOND, to any fees then due and payable to the Agent,
the Lenders and the Issuing Bank under this Agreement or any other Loan
Document; THIRD, to the payment of interest then due and payable on the
Loans; FOURTH, to the extent there are any unreimbursed drawings under any
Letter of Credit, to the Issuing Bank in respect of such unreimbursed
drawings then outstanding; FIFTH, to the payment of principal then due and
payable on the Loans; SIXTH, to any other Obligations not otherwise
referred to in this SECTION 2.16(A); SEVENTH, to damages incurred by the
Agent, the Issuing Bank or any Lender by reason of any breach hereof or of
any other Loan Document; and EIGHTH, upon satisfaction in full of all
Obligations, to the Borrower Representative or as otherwise required by
law.
(b) The Obligations shall, notwithstanding any judgment of
any court, arbitral tribunal or similar authority specifying judgment in
any currency (as so specified, the "Judgment Currency") other than the
currency in which such Obligations were originally denominated (as
applicable, the "Original Currency"), be discharged only to the extent
that, on the date when received by the Agent, any Collateral Agent, the
Issuing Bank or the Lenders or any of them, the sum adjudged to be so due
in the Judgment Currency, after conversion to the Original Currency in
accordance with the following SECTION 2.16(C), is equal to the amount of
the Obligations when denominated in the Original Currency. If the amount
of the Judgment Currency, after being so converted, is less than the amount
of the Original Currency, each Borrower agrees to indemnify the Agent, the
Issuing Bank and the Lenders, as the case may be, against such difference,
and if the amount of the Judgment Currency, after being so converted, is
greater than the amount of the Original Currency, the Agent, the Issuing
Bank and the Lenders, as the case may be, shall remit such excess to the
Borrower Representative.
(c) Except where otherwise expressly provided in this
Agreement, in any case where any Original Currency is to be converted into
another currency (as applicable, a "Resulting Currency"), the Agent shall
convert the Original Currency into the Resulting Currency using the
applicable Spot Rate, and the calculations of the Agent thereof shall be
prima facie evidence of the Resulting Currency amount.
2.17 FOREIGN EXCHANGE FACILITY.
(a) BAFSB, or its Affiliate, (a "FX Lender") at its
discretion may enter into a Foreign Exchange Agreement with the Borrowers.
The foreign exchange contract limit will be $5,000,000 U.S. Dollars and the
settlement limit will be $1,000,000 U.S. Dollars. The "foreign exchange
contract limit" is the maximum limit on the net difference between the
total Foreign Exchange Agreements outstanding less the total Foreign
Exchange Agreements for which the Borrower has already compensated the FX
Lender. The "settlement limit" is the maximum limit on the gross total
amount of all sale and purchase contracts on which delivery is to be
effected and settlement allowed on any one banking day.
(b) Foreign Exchange Agreements will be in form and
substance satisfactory to the FX Lender and the Borrower Representative.
(c) No Foreign Exchange Agreement will mature later than
the Maturity Date and in addition no Foreign Exchange Agreement shall have
a tenor longer than 365 days.
(d) The Borrowers understand the risks of, and are
financially able to bear any losses resulting from, entering into Foreign
Exchange Agreements. The Lenders shall not be liable for any loss suffered
by any Borrower as a result of a Foreign Exchange Agreement. The Borrowers
will enter into each Foreign Exchange Agreement in reliance only upon such
Borrower's own judgment. Each Borrower acknowledges that in entering into
any Foreign Exchange Agreement with such Borrower, the FX Lender is not
acting as a fiduciary. Each Borrower understands that neither any Lender
nor any Borrower have any obligation to enter into any particular Foreign
Exchange Agreement with the other.
(e) Such Borrower represents and warrants that it has a
net worth of at least $1 million. Such Borrower represents and warrants
that it will enter into Foreign Exchange Agreements only in connection with
the conduct of its business or to manage the risk of an asset or liability
owned or incurred in the conduct of its business, and not for speculative
purposes.
(f) Each Borrower hereby requests the FX Lender to rely
upon and execute such Borrower's telephonic instructions regarding Foreign
Exchange Agreements, and such Borrower agrees that the FX Lender shall
incur no liability for its acts or omissions which result from interruption
of communications, misunderstood communications or instructions from
unauthorized persons, unless caused by the gross negligence or wilful
misconduct of the FX Lender or its officers or employees as determined by a
final judgment of a court of competent jurisdiction. The Borrower agrees
to protect the FX Lender and hold it harmless from any and all loss,
damage, claim, expense (including the reasonable fees of outside counsel
and the allocated costs of staff counsel) or inconvenience, however
arising, which the FX Lender suffers or incurs or might suffer or incur,
based on or arising out of said acts or omissions.
(g) Each Borrower agrees to promptly review all
confirmations sent to the Borrower by the FX Lender. Each Borrower
understands that these confirmations are not legal contracts but only
evidence of the valid and binding oral contract which such Borrower has
already entered into with the FX Lender. Each Borrower agrees to promptly
execute and return to the FX Lender confirmations which accurately reflect
the terms of a Foreign Exchange Agreement, and immediately contact the FX
Lender if such Borrower believes a confirmation is not accurate. In the
event of a conflict, inconsistency or ambiguity between the provisions of
this Agreement and the provisions of a confirmation, the provisions of this
Agreement will prevail.
(h) Each Borrower agrees that the FX Lender may
electronically record all telephonic conversations with such Borrower
relating to Foreign Exchange Agreements and that such tape recordings may
be submitted in evidence to any court or in any other proceedings relating
to such contracts. Each Borrower agrees that in the event of a conflict,
inconsistency or ambiguity between the terms of a Foreign Exchange
Agreement as reflected in a tape recording and the terms stated on a
confirmation, the terms reflected in the tape recording shall control.
(i) Any sum owed to the FX Lender under a Foreign
Exchange Agreement may, at the option of the FX Lender, be added to the
principal amount outstanding under this Agreement. The amount will bear
interest and be due as described elsewhere in this Agreement. Each
Borrower hereby authorizes the FX Lender to debit such Borrower's account
with the FX Lender for payments due from such Borrower to the FX Lender
with respect to any Foreign Exchange Agreement. Each Borrower acknowledges
that collateral pledged to secure the Borrowers' performance of their
obligations under this Agreement secures not only the Borrowers' obligation
to repay advances hereunder but also secures any Borrower's performance of
each and every obligation hereunder, including but not limited to such
Borrower's performance of its obligations under Foreign Exchange Agreements
with the FX Lender.
(j) In addition to any other rights or remedies which
the Agent and the Lenders may have under this Agreement or otherwise, upon
the occurrence of an Event of Default under this Agreement and until such
Event of Default is waived in writing by the Lenders in accordance with
SECTION 11.1 hereof, the FX Lender may:
(1) Suspend performance of its obligations to any
Borrower under any Foreign Exchange Agreement;
(2) Declare all Foreign Exchange Agreements,
interest and any other amounts which are payable by any
Borrower to the FX Lender immediately due and payable;
and
(3) Without notice to any Borrower, close out any
or all Foreign Exchange Agreements or positions of any
Borrower with the FX Lender.
The FX Lender shall not be under any obligation to exercise
any such rights or remedies or to exercise them at a time or in a manner
beneficial to any Borrower. The Borrowers shall be liable for any amounts
owing to the FX Lender after exercise of any such rights and remedies.
(k) One or more of the Borrowers and the FX Lender will
be entering into an International Foreign Exchange Master Agreement (as
amended, modified or renewed, the "FEMA"). All foreign exchange
transactions entered into between any Borrowers and the FX Lender shall be
subject to the provisions of this Agreement and the FEMA in the event of
any conflict or inconsistency between the provisions of this Agreement and
the provisions of the FEMA, the provisions of the FEMA shall control. The
occurrence of an Event of Default under the FEMA shall also constitute an
Event of Default under this Agreement.
2.18 GUARANTY. (a) Each Borrower hereby unconditionally
guarantees to the Lenders, the Issuing Bank and the Agent and their
respective successors and assigns and the subsequent holders of the Notes,
irrespective of the validity and enforceability of this Agreement, the
Notes, or the other Loan Documents or the obligations of any other Borrower
or other guarantor thereunder, the value or sufficiency of any Collateral
or any other circumstance that might otherwise affect the liability of a
guarantor, that: (i) the principal of and interest on the Loans made to any
other Borrower, any Note executed by any other Borrower, and all other
obligations of any other Borrower arising from, in connection with or
related to any Loan to such other Borrower, including, without limitation,
breakage costs pursuant to SECTION 4.4 hereof, taxes, fees, and any and all
reasonable expenses which may be incurred by the Agent, the Issuing Bank or
any Lender in enforcing or collecting any rights arising in connection with
such Loans (collectively, the "Borrower Loan Obligations"), shall be
promptly paid in full when due, whether at stated maturity, by acceleration
or otherwise, in accordance with the terms hereof and thereof; and (ii) in
case of any extension of time of payment or renewal of any Note executed by
any other Borrower, or any of such Borrower Loan Obligations, the same
shall be promptly paid in full when due in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed for
whatever reason, such Borrower will be obligated to pay the same
immediately.
(b) Each Borrower hereby waives presentment, protest,
demand of payment, notice of dishonor and all other notices and demands
whatsoever. Each Borrower further agrees that, as between such Borrower,
on the one hand, and the Agent, the Issuing Bank and the Lenders, on the
other hand, (i) the maturity of the Borrower Loan Obligations guaranteed
hereby may be accelerated as provided in SECTION 9.2 hereof for the
purposes of this guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the Borrower Loan
Obligations guaranteed hereby, and (ii) in the event of any declaration of
acceleration of such Borrower Loan Obligations as provided in SECTION 9.2
hereof, such Borrower Loan Obligations (whether or not due and payable)
shall forthwith become due and payable by each Borrower for purposes of
this guarantee. The obligations of each Borrower under this SECTION 2.18
shall be automatically reinstated if and to the extent that for any reason
any payment by or on behalf of any other Borrower is rescinded or must
otherwise be restored by any holder of any of the Borrower Loan Obligations
guaranteed hereunder, whether as a result of any proceedings in bankruptcy
or reorganization or otherwise, and each Borrower agrees that it will
indemnify the Lenders and the Agent on demand for all reasonable costs and
expenses (including, without limitation, reasonable fees and expenses of
counsel) incurred by the Lenders or the Agent in connection with such
rescission or restoration.
(c) The guaranty of each Borrower set forth herein shall
remain in full force and effect until the Obligations are indefeasibly paid
in full. No payment or payments made by any other Borrower or any other
Person or received or collected by the Agent, the Issuing Bank or any
Lender from any other Borrower or any other Person by virtue of any action
or proceeding or any set-off or appropriation or application at any time or
from time to time in reduction of or in payment of the Borrower Loan
Obligations shall be deemed to modify, reduce, release or otherwise affect
the liability of such Borrower pursuant to this SECTION 2.18, which
liability shall, notwithstanding any such payment or payments, other than
payments made by such Borrower in respect of the Borrower Loan Obligations,
remain for the Borrower Loan Obligations until the Borrower Loan
Obligations are paid in full. Each Borrower agrees that whenever, at any
time, or from time to time, it shall make any payment to the Agent, the
Issuing Bank or any Lender on account of its liability under this SECTION
2.18, it will notify the Agent in writing that such payment is made under
its guaranty obligations of this SECTION 2.18 for such purpose. Anything
herein, or in any other Loan Document, to the contrary notwithstanding, the
maximum liability of each Borrower under this SECTION 2.18 shall in no
event exceed the amount which can be guaranteed by such Borrower under
applicable federal or state laws relating to the insolvency of debtors.
(d) Without in any manner limiting the generality of the
foregoing, each Borrower agrees that the Agent, the Majority Lenders or the
Lenders may, in accordance with SECTION 11.1 hereof, from time to time,
consent to any action or non-action of any Borrower which, in the absence
of such consent, violates or may violate this Agreement, with or without
consideration, on such terms and conditions as may be acceptable to the
Agent, the Majority Lenders and the Lenders, without in any manner
affecting or impairing the liability of any other Borrower hereunder. Each
Borrower waives any defense arising by reason of any inability to pay or
any defense based on bankruptcy or insolvency or other similar limitations
on creditors' remedies. Each Borrower authorizes the Agent, the Issuing
Bank and Lenders, without notice or demand and without affecting such
Borrower's liability hereunder or under any of the other Loan Documents,
from time to time to: (i) accelerate (or, in accordance with SECTION 11.1
hereof, renew, extend, or otherwise change the time or place for payment
of, or otherwise change the terms of) the Notes or the Obligations or any
part thereof including, without limitation, increase or decrease of the
rate of interest thereon; (ii) take and hold security, and exchange,
enforce, waive and release any collateral or security or any part thereof
or any such other security or surrender, modify, impair, change, alter,
renew, continue, compromise or release in whole or in part of any such
security, or fail to perfect its interest in any such security or to
establish its priority with respect thereof; (iii) apply such security and
direct the order or manner or sale thereof as the Agent and Majority
Lenders in their sole discretion may determine; (iv) release or substitute
any other Borrower, in whole or in part or any of the endorsers or
guarantors of the Obligations or any part thereof; (v) settle or compromise
any or all of the Obligations with any other Borrower or any endorser or
guarantor of the Obligations; and (vi) subordinate any or all of the
Obligations to any other obligations of or claim against any other
Borrower, whether owing to or existing in favor of the Agent, the Issuing
Bank or the Lenders or any other party.
(e) The Agent, the Issuing Bank, the Majority Lenders or
the Lenders, as the case may be, may, at their election, exercise any right
or remedy they may have against any Borrower or any security now or
hereafter held by or for the benefit of the Agent, the Issuing Bank or the
Lenders including, without limitation, the right to foreclose upon any such
security by judicial or nonjudicial sale, without affecting or impairing in
any way the liability of any other Borrower hereunder, except to the extent
the Obligations may thereby be paid. Each Borrower waives any defense
arising out of the absence, impairment or loss of any right of
reimbursement or other right or remedy against any other Borrower or any
such security, whether resulting from the election by the Agent, the
Issuing Bank, the Lenders or the Majority Lenders to exercise any right or
remedy they may have against any other Borrower, any defect in, failure of,
or loss or absence of priority with respect to the interest of the Agent or
the Lenders in such security, or otherwise. In the event that any
foreclosure sale is deemed to be not commercially reasonable, each Borrower
waives any right that it may have to have any portion of the Obligations
discharged except to the extent of the amount actually bid and received by
the Lenders at any such sale. Neither the Agent, the Issuing Bank nor any
Lender shall be required to institute or prosecute proceedings to recover
any deficiency as a condition of payment hereunder or enforcement hereof.
(f) Each Borrower waives the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof,
to the extent permitted by law. Any part performance of the Obligations by
a Borrower, or any other event or circumstances, which operate to toll any
statute of limitations as to such Borrower, shall not operate to toll the
statute of limitations as to any other Borrower. Each Borrower waives any
defense arising by reason of any disability or other defense of any other
Borrower or by reason of the cessation from any cause whatsoever of the
liability of any other Borrower. Each Borrower waives any setoff, defense
or counterclaim which any other Borrower may have or claim to have against
the Agent or the Lenders.
2.19 JOINT AND SEVERAL LIABILITY. (a) Each Borrower expressly
represents and acknowledges that any financial accommodations by the Agent,
the Issuing Bank and the Lenders, or any of them, to any other Borrower
hereunder and under the other Loan Documents are and will be of direct
interest, benefit and advantage to all the Borrowers. Each Borrower
acknowledges that any notice given by the Agent, the Issuing Bank or any
Lender to any Borrower or the Borrower Representative shall be effective
with respect to all Borrowers. Each Borrower shall be entitled to
subrogation and contribution rights from and against any other Borrower to
the extent such Borrower is required to pay to the Lenders any amount in
excess of the Loans advanced hereunder directly to such Borrower or as
otherwise available under Applicable Law; provided, however, that such
subrogation and contribution rights are and shall be subject to the terms
and conditions of SECTION 2.19(B) hereof. The provisions of this
SECTION 2.19(A) shall in no way limit the obligations and liabilities of
any Borrower to the Agent, the Issuing Bank and the Lenders and each
Borrower shall remain liable to the Agent, the Issuing Bank and the Lenders
for the full amount of the Obligations.
(b) No Borrower will exercise any rights which it may
acquire by way of subrogation hereunder or under any other Loan Document or
at law by any payment made hereunder or otherwise, nor shall any Borrower
seek or be entitled to seek any contribution or reimbursement from any
other Borrower in respect of payments made by such Borrower hereunder or
under any other Loan Document, until all amounts owing to the Agent, the
Issuing Bank and the Lenders on account of the Obligations are paid in full
and the Commitment is terminated. If any amounts shall be paid to any
Borrower on account of such subrogation or contribution rights at any time
when all of the Obligations shall not have been paid in full, such amount
shall be held by such Borrower in trust for the Agent, the Issuing Bank and
the Lenders, segregated from other funds of such Borrower, and shall,
forthwith upon receipt by such Borrower, be turned over to the Agent, the
Issuing Bank in the exact form received by such Borrower (duly endorsed by
such Borrower to the Agent, if required), to be applied against the
Obligations, whether matured or unmatured, as provided for herein.
2.20 DESIGNATION OF BORROWER REPRESENTATIVE. Each of the
Borrowers hereby designates the Borrower Representative to act as its agent
and representative for all purposes hereunder and under any Loan Document.
The Borrowers shall have the right to change the identity of the Borrower
Representative upon notice to, and with the consent of, the Agent, which
consent shall not be unreasonably withheld.
ARTICLE III.
THE LETTERS OF CREDIT
3.1 THE LETTER OF CREDIT SUBFACILITY.
(a) On the terms and conditions set forth herein,
including, but not limited to, the conditions set forth in SECTION 5.2, (i)
each Issuing Bank agrees, (A) from time to time on any Business Day during
the period from the Agreement Date to the Maturity Date to issue Letters of
Credit for the account of the Borrowers, and to amend or renew Letters of
Credit previously issued by it, in accordance with SUBSECTIONS 3.2(C) and
3.2(D), and (B) to honor drafts under the Letters of Credit; and (ii) the
Lenders severally agree to participate in Letters of Credit Issued for the
account of the Borrowers; PROVIDED, that the Issuing Banks shall not Issue
any Letter of Credit if as of the date of Issuance of such Letter of Credit
(the "ISSUANCE DATE") and after giving effect to the issuance of such
Letters of Credit (1) the Effective Amount of all L/C Obligations plus the
Effective Amount of all Loans exceeds the Commitment, (2) the participation
of any Lender in the Effective Amount of all L/C Obligations plus the
Effective Amount of the Loans of such Lender exceeds such Lender's
Revolving Commitment, (3) the Effective Amount of L/C Obligations exceeds
the L/C Commitment, (4) the Effective Amount of all Letters of Credit
Issued, and all other L/C Obligations owing, in U.S. Dollars exceeds in the
aggregate $1,000,000, or (5) the Effective Amount of all Letters of Credit
Issued, and all other L/C Obligations owing, in Offshore Currency (each an
"Offshore Currency L/C") exceeds in the aggregate $1,000,000. Within the
foregoing limits, and subject to the other terms and conditions hereof, the
Borrowers' ability to obtain Letters of Credit shall be fully revolving,
and, accordingly, the Borrowers may, during the foregoing period, obtain
Letters of Credit to replace Letters of Credit which have expired or which
have been drawn upon and reimbursed.
(b) No Issuing Bank shall be obligated to Issue any
Letter of Credit if:
i) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its terms
purport to enjoin or restrain such Issuing Bank from Issuing
such Letter of Credit, or any Requirement of Law applicable to
such Issuing Bank or any request or directive (whether or not
having the force of law) from any Governmental Authority with
jurisdiction over such Issuing Bank shall prohibit, or request
that such Issuing Bank refrain from, the Issuance of letters
of credit generally or such Letter of Credit in particular or
shall impose upon such Issuing Bank with respect to such
Letter of Credit any restriction, reserve or capital
requirement (for which such Issuing Bank is not otherwise
compensated hereunder) not in effect on the Agreement Date, or
shall impose upon such Issuing Bank any unreimbursed loss,
cost or expense which was not applicable on the Agreement Date
and which such Issuing Bank in good xxxxx xxxxx material to
it;
ii) any Issuing Bank has received written notice
from any Lender, the Agent or the Borrower Representative, on
or prior to the Business Day prior to the requested date of
Issuance of such Letter of Credit, that one or more of the
applicable conditions contained in SECTION 5.2 is not then
satisfied;
iii) the expiry date of any requested Letter of
Credit is (A) more than 365 days after the date of Issuance,
unless the Agent has approved such expiry date in writing, or
(B) after the Maturity Date;
iv) the expiry date of any requested Letter of
Credit is prior to the maturity date of any financial
obligation to be supported by the requested Letter of Credit;
v) any requested Letter of Credit does not provide
for drafts, or is not otherwise in form and substance
reasonably acceptable to such Issuing Bank, or the Issuance of
a Letter of Credit shall violate any applicable policies of
such Issuing Bank;
vi) any Letter of Credit is for the purpose of
supporting the issuance of any letter of credit by any other
Person (other than the Letter of Credit to be Issued on or
about the Agreement Date to Barclays Bank PLC); or
vii) such Letter of Credit is in a face amount less
than $2,500 or to be denominated in a currency other than
Dollars or the Offshore Currency.
(c) BAI shall only Issue Letters of Credit in U.S.
Dollars, and BOA shall only Issue Letters of Credit in Offshore Currency.
All references herein to "Issuing Bank" with respect to Letters of Credit
Issued or requested to be Issued in (a) U.S. Dollars shall refer to BAI in
its capacity as Issuing Bank, and (b) Offshore Currency shall refer to BOA
in its capacity as Issuing Bank.
3.2 ISSUANCE, AMENDMENT AND RENEWAL OF LETTERS OF CREDIT.
(a) Each Letter of Credit shall be issued upon the
irrevocable written request of the Borrower Representative received by the
Issuing Bank (with a copy sent by the Borrower Representative to the Agent)
at least three days with respect to U.S. Dollar Letters of Credit, and at
least four days with respect to Offshore Currency Letters of Credit (or
such shorter time as the Issuing Bank may agree in a particular instance in
its sole discretion) prior to the proposed date of issuance. Each such
request for issuance of a Letter of Credit shall be by facsimile, confirmed
immediately in the form of an L/C Application, or electronically using the
Issuing Bank's automated personal computer based letter of credit
initiation software, and shall specify in form and detail reasonably
satisfactory to the Issuing Bank: (i) the proposed date of issuance of the
Letter of Credit (which shall be a Business Day); (ii) the face amount of
the Letter of Credit; (iii) the expiry date of the Letter of Credit; (iv)
the name and address of the beneficiary thereof; (v) the documents to be
presented by the beneficiary of the Letter of Credit in case of any drawing
thereunder; (vi) the full text of any certificate to be presented by the
beneficiary in case of any drawing thereunder; (vii) whether the Letter of
Credit is to be Issued in U.S. Dollars or an Offshore Currency and (viii)
such other matters as the Issuing Bank may require.
(b) At least two Business Days prior to the Issuance of
any Letter of Credit, the Issuing Bank will confirm with the Agent in
writing that the Agent has received a copy of the L/C Application or L/C
Amendment Application from the Borrower Representative and, if not, the
Issuing Bank will provide the Agent with a copy thereof. Unless the
Issuing Bank has received notice on or before the Business Day immediately
preceding the date the Issuing Bank is to issue a requested Letter of
Credit from the Agent (A) directing the Issuing Bank not to issue such
Letter of Credit because such issuance is not then permitted under
SUBSECTION 3.1(A)(II) as a result of the limitations set forth in clauses
(1) through (5) thereof or SUBSECTION 3.1(B)(II); or (B) that one or more
conditions specified in Article VI are not then satisfied; then, subject to
the terms and conditions hereof, the Issuing Bank shall, on the requested
date, issue a Letter of Credit for the account of the applicable Borrower
in accordance with the Issuing Bank's usual and customary business
practices.
(c) From time to time while a Letter of Credit is
outstanding and prior to the Maturity Date, the Issuing Bank will, upon the
written request of the Borrower Representative received by the Issuing Bank
(with a copy sent by the Borrower Representative to the Agent) at least
five days (or such shorter time as the Issuing Bank may agree in a
particular instance in its sole discretion) prior to the proposed date of
amendment, amend any Letter of Credit issued by it. Each such request for
amendment of a Letter of Credit shall be made by facsimile, confirmed
immediately in the form of an L/C Amendment Application, or electronically
using the Issuing Bank's automated personal computer based letter of credit
initiation software, and shall specify in form and detail reasonably
satisfactory to the Issuing Bank: (i) the Letter of Credit to be amended;
(ii) the proposed date of amendment of the Letter of Credit (which shall be
a Business Day); (iii) the nature of the proposed amendment; and (iv) such
other matters as the Issuing Bank may require. The Issuing Bank shall be
under no obligation to amend any Letter of Credit if: (A) the Issuing Bank
would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms of this Agreement; or (B) the beneficiary of
any such Letter of Credit does not accept the proposed amendment to the
Letter of Credit. The Agent will promptly notify the Lenders of the
receipt by it of any L/C Application or L/C Amendment Application.
(d) The Issuing Bank and the Lenders agree that, while a
Letter of Credit is outstanding and prior to the Maturity Date, at the
option of the Borrower Representative and upon the written request of the
Borrower Representative received by the Issuing Bank (with a copy sent by
the Borrower Representative to the Agent) at least five days (or such
shorter time as the Issuing Bank may agree in a particular instance in its
sole discretion) prior to the proposed date of notification of renewal, the
Issuing Bank shall be entitled to authorize the renewal of any Letter of
Credit issued by it. Each such request for renewal of a Letter of Credit
shall be made by facsimile, confirmed immediately in the form of an L/C
Amendment Application, or electronically using the Issuing Bank's automated
personal computer based letters of credit software, and shall specify in
form and detail reasonably satisfactory to the Issuing Bank: (i) the Letter
of Credit to be renewed; (ii) the proposed date of notification of renewal
of the Letter of Credit (which shall be a Business Day); (iii) the revised
expiry date of the Letter of Credit; and (iv) such other matters as the
Issuing Bank may require. The Issuing Bank shall be under no obligation so
to renew any Letter of Credit if: (A) the Issuing Bank would have no
obligation at such time to issue or amend such Letter of Credit in its
renewed form under the terms of this Agreement; or (B) the beneficiary of
any such Letter of Credit does not accept the proposed renewal of the
Letter of Credit. The Borrower Representative shall not have the right to
have any Letter of Credit issued which contains any automatic renewal
provision.
(e) The Issuing Bank may, at its election (or as
required by the Agent at the direction of the Majority Lenders), deliver
any notices of termination or other communications to any Letter of Credit
beneficiary or transferee, and take any other action as necessary or
appropriate, at any time and from time to time, in order to cause the
expiry date of such Letter of Credit to be a date not later than the
Maturity Date.
(f) This Agreement shall control in the event of any
conflict with any L/C-Related Document (other than any Letter of Credit).
(g) The Issuing Bank will also deliver to the Agent,
concurrently or promptly following its delivery of a Letter of Credit, or
amendment to or renewal of a Letter of Credit, to an advising bank or a
beneficiary, a true and complete copy of each such Letter of Credit or
amendment to or renewal of a Letter of Credit.
3.3 RISK PARTICIPATIONS, DRAWINGS AND REIMBURSEMENTS.
(a) Immediately upon the Issuance of each Letter of
Credit each Lender (including Offshore Currency Lenders with respect to
Offshore Currency L/Cs only) shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank a participation
in such Letter of Credit and each drawing thereunder in an amount equal to
the product of (i) the Commitment Percentage of such Lender (or the
Offshore Currency Commitment Percentage of such Offshore Currency Lender
with respect to each Offshore Currency L/C, as the case may be), times (ii)
the maximum amount available to be drawn under such Letter of Credit and
the amount of such drawing, respectively. Only Offshore Currency Lenders
shall participate in Offshore Currency L/Cs and Offshore Currency Lenders
shall not participate in any Letters of Credit issued in U.S. Dollars. For
purposes of SECTION 2.1, each Issuance of a Letter of Credit shall be
deemed to utilize the Commitment of each Lender (or the Offshore Currency
Commitment of each Offshore Currency Lender with respect to Offshore
Currency L/Cs, as the case may be) by an amount equal to the amount of such
participation.
(b) In the event of any request for a drawing under a
Letter of Credit by the beneficiary or transferee thereof, the Issuing Bank
will promptly notify the Borrower Representative. The Borrowers shall
reimburse the Issuing Bank prior to 1:00 p.m. (New York time) on each date
that any amount is paid by the Issuing Bank under any Letter of Credit
(each such date, an "HONOR DATE"), in an amount equal to the amount so paid
by the Issuing Bank. In the event the Borrowers fail to reimburse the
Issuing Bank for the full amount of any drawing under any Letter of Credit
by 1:00 p.m. (New York time) on the Honor Date, the Issuing Bank will
promptly notify the Agent and the Agent will promptly notify each Lender
thereof, and the Borrowers shall be deemed to have requested that Base Rate
Loans or, with respect to Offshore Currency L/Cs, Offshore Currency Loans,
be made by the Lenders (or the Offshore Currency Lenders, as the case may
be) to be disbursed on the Honor Date under such Letter of Credit. Any
notice given by the Issuing Bank or the Agent pursuant to this SUBSECTION
3.3(B) may be oral if immediately confirmed in writing (including by
facsimile); provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
(c) Each Lender shall upon any notice pursuant to
SUBSECTION 3.3(B) make available to the Agent for the account of the
relevant Issuing Bank an amount in U.S. Dollars (or, in the case of
Offshore Currency L/Cs, in Offshore Currency) and in immediately available
funds equal to its Commitment Percentage of the amount of the drawing,
whereupon the participating Lenders shall each be deemed to have made a
Loan consisting of a Base Rate Loan (or, in the case of Offshore Currency
L/Cs, an Offshore Currency Loan) to the Borrowers in that amount. If any
Lender so notified fails to make available to the Agent for the account of
the Issuing Bank the amount of such Lender's Commitment Percentage of the
amount of the drawing by no later than 3:00 p.m. (New York time) on the
Honor Date, then interest shall accrue on such Lender's obligation to make
such payment, from the Honor Date to the date such Lender makes such
payment, at a rate per annum equal to the Federal Funds Rate in effect from
time to time during such period. The Agent will promptly give notice of
the occurrence of the Honor Date, but failure of the Agent to give any such
notice on the Honor Date or in sufficient time to enable any Lender to
effect such payment on such date shall not relieve such Lender from its
obligations under this SECTION 3.3.
(d) Each Lender's obligation in accordance with this
Agreement to make the Loans, as contemplated by this SECTION 3.3, as a
result of a drawing under a Letter of Credit, shall be absolute and
unconditional and without recourse to the Issuing Bank and shall not be
affected by any circumstance, including (i) any set-off, counterclaim,
recoupment, defense or other right which such Lender may have against the
Issuing Bank, any Borrower or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default, an Event of Default or a
Material Adverse Effect; or (iii) any other circumstance, happening or
event whatsoever, whether or not similar to any of the foregoing.
3.4 REPAYMENT OF PARTICIPATIONS.
(a) Upon (and only upon) receipt by the Agent for the
account of the Issuing Bank of immediately available funds from the
Borrowers (i) in reimbursement of any payment made by the Issuing Bank
under the Letter of Credit with respect to which any Lender has paid the
Agent for the account of the Issuing Bank for such Lender's participation
in the Letter of Credit pursuant to SECTION 3.3 or (ii) in payment of
interest thereon, the Agent will pay to each Lender, in the same funds as
those received by the Agent for the account of the Issuing Bank, the amount
of such Lender's pro rata share of such funds (determined in accordance
with its Commitment Percentage), and the Issuing Bank shall receive the
amount of the pro rata share of such funds of any Lender that did not so
pay the Agent for the account of the Issuing Bank.
(b) If the Agent or the Issuing Bank is required at any
time to return to any Borrower, or to a trustee, receiver, liquidator,
custodian, or any official in any Insolvency Proceeding, any portion of the
payments made by any Borrower to the Agent for the account of the Issuing
Bank pursuant to SUBSECTION 3.4(A) in reimbursement of a payment made under
the Letter of Credit or interest or fee thereon, each Lender shall, on
demand of the Agent, forthwith return to the Agent or the Issuing Bank the
amount of its pro rata share of any amounts so returned by the Agent or the
Issuing Bank plus interest thereon from the date such demand is made to the
date such amounts are returned by such Lender to the Agent or the Issuing
Bank, at a rate per annum equal to the Federal Funds Rate in effect from
time to time.
3.5 ROLE OF THE ISSUING BANK.
(a) Each Lender and each Borrower agrees that, in paying
any drawing under a Letter of Credit, the Issuing Bank shall not have any
responsibility to obtain any document (other than any sight draft,
documents and certificates expressly required by the Letter of Credit) or
to ascertain or inquire as to the validity or accuracy of any such document
or the authority of the Person executing or delivering any such document.
(b) No Agent-Related Person nor any of the respective
correspondents, participants or assignees of any Issuing Bank shall be
liable to any Lender for: (i) any action taken or omitted in connection
herewith at the request or with the approval of the Lenders (including the
Majority Lenders, as applicable); (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct as determined by a final
non-appealable order of a court of competent jurisdiction; or (iii) the due
execution, effectiveness, validity or enforceability of any L/C-Related
Document.
(c) Each Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its use of
any Letter of Credit; PROVIDED, however, that this assumption is not
intended to, and shall not, preclude such Borrower's pursuing such rights
and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. No Agent-Related Person, nor any of the
respective correspondents, participants or assignees of any Issuing Bank,
shall be liable or responsible for any of the matters described in clauses
(i) through (vii) of SECTION 3.6; PROVIDED, however, anything in such
clauses to the contrary notwithstanding, that such Borrower may have a
claim against the Issuing Bank, and the Issuing Bank may be liable to such
Borrower, to the extent, but only to the extent, of any direct, as opposed
to consequential or exemplary, damages suffered by such Borrower which such
Borrower proves were caused by the Issuing Bank's willful misconduct or
gross negligence as determined by a final non-appealable order of a court
of competent jurisdiction. In furtherance and not in limitation of the
foregoing: (i) the Issuing Bank may accept documents that appear on their
face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary; and (ii) the
Issuing Bank shall not be responsible 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.
3.6 OBLIGATIONS ABSOLUTE. The obligations of the Borrowers
under this Agreement and any L/C-Related Document to reimburse the Issuing
Bank for a drawing under a Letter of Credit, and to repay any drawing under
a Letter of Credit converted into Loans, shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of
this Agreement and each such other L/C-Related Document under all
circumstances, including the following:
i) any lack of validity or enforceability of this
Agreement or any L/C-Related Document;
ii) any change in the time, manner or place of
payment of, or in any other term of, all or any of the
obligations of any Borrower in respect of any Letter of Credit
or any other amendment or waiver of or any consent to
departure from all or any of the L/C-Related Documents;
iii) the existence of any claim, set-off, defense
or other right that any Borrower may have at any time against
any beneficiary or any transferee of any Letter of Credit (or
any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Bank or any other
Person, whether in connection with this Agreement, the
transactions contemplated hereby or by the L/C-Related
Documents or any unrelated transaction;
iv) any draft, demand, certificate or other
document presented under any Letter of Credit proving to be
forged or fraudulent (other than by an action of any of the
Lenders or the Issuing Bank or any of their employees), or
invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; or any loss
or delay in the transmission or otherwise of any document
required in order to make a drawing under any Letter of
Credit;
v) any payment by the Issuing Bank under any Letter
of Credit against presentation of a draft or certificate that
does not strictly comply with the terms of any Letter of
Credit; or any payment made by the Issuing Bank under any
Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of any Letter
of Credit, including any arising in connection with any
Insolvency Proceeding;
vi) any exchange, release or non-perfection of any
Collateral, or any release or amendment or waiver of or
consent to departure from any other guarantee, for all or any
of the obligations of any Borrower in respect of any Letter of
Credit; or
vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing,
including any other circumstance that might otherwise
constitute a defense available to, or a discharge of, any
Borrower or Obligor.
3.7 CASH COLLATERAL PLEDGE. Upon (i) the request of the
Agent, if, as of the Maturity Date, any Letters of Credit may for any
reason remain outstanding and partially or wholly undrawn, or (ii) the
occurrence of the circumstances described in SUBSECTION 2.7(A) requiring
the Borrowers to Cash Collateralize Letters of Credit, then, the Borrowers
shall immediately Cash Collateralize the L/C Obligations in an amount equal
to such L/C Obligations.
3.8 LETTER OF CREDIT FEES.
(a) The Borrowers shall pay to the Agent for the account
of each of the Lenders a letter of credit fee with respect to the Letters
of Credit equal to 1.5% per annum of the average daily maximum Equivalent
Amount available to be drawn of the outstanding Letters of Credit, computed
on a monthly basis in arrears on the last Business Day of each month based
upon Letters of Credit outstanding for that month as calculated by the
Agent; provided, however, only Offshore Currency Lenders will receive such
fee with respect to Offshore Currency L/Cs, and Offshore Currency Lenders
will not receive such fee with respect to any Letter of Credit issued in
U.S. Dollars. Such letter of credit fees shall be due and payable monthly
in arrears on the last Business Day of each calendar month during which
Letters of Credit are outstanding, commencing on the first such date to
occur after the Agreement Date, through the Maturity Date (or such later
date upon which the outstanding Letters of Credit shall expire), with the
final payment to be made on the Maturity Date (or such later expiration
date).
(b) The Borrowers shall pay to the Issuing Bank from
time to time on demand the normal issuance, presentation, amendment and
other processing fees, and other standard costs and charges, of the Issuing
Bank relating to letters of credit as from time to time in effect.
3.9 UNIFORM CUSTOMS AND PRACTICE. The Uniform Customs and
Practice for Documentary Credits as published by the International Chamber
of Commerce most recently at the time of issuance of any Letter of Credit
shall apply to the Letters of Credit.
ARTICLE IV.
TAXES, YIELD PROTECTION AND ILLEGALITY
4.1 TAXES.
(a) Any and all payments by any Borrower to each Lender,
the Issuing Bank or the Agent under this Agreement and any other Loan
Document shall be made free and clear of, and without deduction or
withholding for, any Taxes. In addition, the Borrowers shall pay all Other
Taxes.
(b) If any Borrower shall be required by law to deduct
or withhold any Taxes, Other Taxes or Further Taxes from or in respect of
any sum payable hereunder to any Lender, the Issuing Bank or the Agent,
then:
i) the sum payable shall be increased as necessary
so that, after making all required deductions and withholdings
(including deductions and withholdings applicable to
additional sums payable under this Section), such Lender, the
Issuing Bank or the Agent, as the case may be, receives and
retains an amount equal to the sum it would have received and
retained had no such deductions or withholdings been made;
ii) such Borrower shall make such deductions and
withholdings;
iii) such Borrower shall pay the full amount
deducted or withheld to the relevant taxing authority or other
authority in accordance with applicable law; and
iv) without duplication, such Borrower shall also
pay to each Lender or the Agent for the account of such Lender
or the Issuing Bank, as applicable, at the time interest is
paid, Further Taxes in the amount that the respective Lender
or Issuing Bank specifies as necessary to preserve the after-
tax yield the Lender or the Issuing Bank, as applicable, would
have received if such Taxes, Other Taxes or Further Taxes had
not been imposed.
(c) Each Borrower agrees to indemnify and hold harmless
each Lender, the Issuing Bank and the Agent for the full amount of i)
Taxes, ii) Other Taxes, and iii) Further Taxes in the amount that the
respective Lender or the Issuing Bank, as applicable, specifies as
necessary to preserve, after taking into account any increases in the sums
paid by the Borrowers pursuant to Section 4.1(b), the after-tax yield the
Lender or the Issuing Bank, as applicable, would have received if such
Taxes, Other Taxes or Further Taxes had not been imposed, and any liability
(including penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto as a result of such Borrower's failure to
timely remit payment following such Lender's demand therefor, whether or
not such Taxes, Other Taxes or Further Taxes were correctly or legally
asserted. Payment under this indemnification shall be made within 30 days
after the date the Lender, the Issuing Bank or the Agent makes written
demand therefor.
(d) Within 30 days after the date of any payment by any
Borrower of Taxes, Other Taxes or Further Taxes, such Borrower shall
furnish to each Lender, the Issuing Bank or the Agent the original or a
certified copy of a receipt evidencing payment thereof, or other evidence
of payment satisfactory to such Lender or the Agent.
(e) If any Borrower is required to pay any amount to any
Lender, the Issuing Bank or the Agent pursuant to SECTION (B) or (C) of
this SECTION, then such Lender or the Issuing Bank, as applicable, shall
use reasonable efforts (consistent with legal and regulatory restrictions)
to change the jurisdiction of its Lending Office so as to eliminate any
such additional payment by such Borrower which may thereafter accrue, if
such change in the sole judgment of such Lender or the Issuing Bank, as
applicable, is not otherwise disadvantageous to such Lender or the Issuing
Bank, as applicable.
(f) If following any deduction or withholding as is
referred to in clause 4.1(b) from any payment by any Borrower and the
receipt by the Agent, any Lender or Issuing Bank of the payments by any
Borrower required pursuant to clause 4.1(b) or 4.1(c), such Lender, such
Issuing Bank or the Agent, as applicable, shall receive or be granted a
credit against or remission for any Taxes payable by it or shall receive a
repayment of any Taxes, Other Taxes or Further Taxes so withheld then the
relevant Lender, the Issuing Bank or the Agent shall, subject to the
relevant Borrower having made any increased payment in accordance with
clause 4.1(b) or any payment under clause 4.1(c), reimburse the relevant
Borrower with such amount as the relevant Lender, the Issuing Bank or the
Agent shall in its absolute discretion certify to be the proportion of such
credit, remission or repayment as will leave the relevant Lender, the
Issuing Bank or the Agent, (after such reimbursement) in no worse position
than it would have been in had there been no such deduction or withholding
from the payment by such Borrower as aforesaid. Such reimbursement shall
be made forthwith upon the relevant Lender, the Issuing Bank or the Agent
certifying that the amount of such credit or remission has been received by
it; provided that the relevant Lender, the Issuing Bank or the Agent shall
not unreasonably delay before so certifying. Nothing contained in this
Agreement shall oblige the relevant Lender, the Issuing Bank or the agent
to disclose to the Borrowers or any other Person any information regarding
its tax affairs or tax computations or interfere with the right of the
relevant Lender, the Issuing Bank or the Agent to arrange its tax affairs
in whatever manner it thinks fit and, in particular, none of the relevant
Lender, the Issuing Bank or the Agent shall be under any obligation to
claim relief from its corporate profits, tax liability or similar tax
liabilities in respect of such tax in priority to any other claims,
reliefs, credits or deductions available to it but subject thereto each
shall use all reasonable efforts to obtain any such available credit,
remission or repayment.
4.2 ILLEGALITY.
(a) If any Lender reasonably determines that the
introduction of any Requirement of Law, or any change in any Requirement of
Law, or in the interpretation or administration of any Requirement of Law,
has made it unlawful, or that any central bank or other Governmental
Authority has asserted that it is unlawful, for any Lender or its
applicable Lending Office to make Eurodollar Rate Loans, then, on notice
thereof by the Lender to the Borrower Representative through the Agent, any
obligation of that Lender to make Eurodollar Rate Loans shall be suspended
until the Lender notifies the Agent and the Borrower Representative that
the circumstances giving rise to such determination no longer exist.
(b) If a Lender reasonably determines that it is
unlawful to maintain any Eurodollar Rate Loan, the Borrowers shall, upon
the receipt by the Borrower Representative of notice of such fact and
demand from such Lender (with a copy to the Agent), prepay in full such
Eurodollar Rate Loans of that Lender then outstanding, together with
interest accrued thereon and amounts required under SECTION 4.4, either on
the last day of the Interest Period thereof, if the Lender may lawfully
continue to maintain such Eurodollar Rate Loans to such day, or
immediately, if the Lender may not lawfully continue to maintain such
Eurodollar Rate Loan. If the Borrowers are required to so prepay any
Eurodollar Rate Loan, then concurrently with such prepayment, the Borrowers
shall borrow from the affected Lender, in the amount of such repayment, a
Base Rate Loan.
(c) If the obligation of any Lender to make or maintain
Eurodollar Rate Loans has been so terminated or suspended, the Borrower
Representative may elect, by giving notice to the Lender through the Agent
that all Loans which would otherwise be made by the Lender as Eurodollar
Rate Loans shall be instead Base Rate Loans.
4.3 INCREASED COSTS AND REDUCTION OF RETURN.
(a) If any Lender reasonably determines that, due to
either (i) the introduction of or any change (other than any change by way
of imposition of or increase in reserve requirements included in the
calculation of the Eurodollar Rate or in respect of the assessment rate
payable by any Lender to the FDIC for insuring U.S. deposits) in or in the
interpretation of any law or regulation or (ii) the compliance by that
Lender with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to such Lender of agreeing to make or
making, funding or maintaining any Eurodollar Rate Loans or participating
in Letters of Credit, or, in the case of the Issuing Bank, any increase in
the cost to the Issuing Bank of agreeing to issue, issuing or maintaining
any Letter of Credit or of agreeing to make or making, funding or
maintaining any unpaid drawing under any Letter of Credit, then the
Borrowers shall be liable for, and shall from time to time, upon demand on
the Borrower Representative (with a copy of such demand to be sent to the
Agent), pay to the Agent for the account of such Lender, additional amounts
as are sufficient to compensate such Lender for such increased costs.
(b) If any Lender or the Issuing Bank shall have
reasonably determined that (i) the introduction of any Capital Adequacy
Regulation, (ii) any change in any Capital Adequacy Regulation, (iii) any
change in the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority charged with
the interpretation or administration thereof, or (iv) compliance by the
Lender or the Issuing Bank (or its Lending Office) or any corporation
controlling the Lender or the Issuing Bank with any Capital Adequacy
Regulation, affects or would affect the amount of capital required or
expected to be maintained by the Lender or the Issuing Bank or any
corporation controlling the Lender or the Issuing Bank and (taking into
consideration such Lender's or the Issuing Bank's, as applicable, or such
corporation's policies with respect to capital adequacy and such Lender's
or the Issuing Bank's, as applicable, desired return on capital) determines
that the amount of such capital is increased as a consequence of its
Commitment, L/C Commitment, loans, credits or obligations under this
Agreement, then, upon demand of such Lender or the Issuing Bank to the
Borrower Representative through the Agent, the Borrowers shall pay to the
Lender, from time to time as specified by the Lender or the Issuing Bank,
as applicable, additional amounts sufficient to compensate the Lender or
the Issuing Bank for such increase.
4.4 FUNDING LOSSES. The Borrowers shall reimburse each
Lender and hold each Lender harmless from any loss or expense which the
Lender may sustain or incur as a consequence of:
(a) the failure of the Borrowers to make on a timely
basis any payment of principal of any Eurodollar Rate Loan;
(b) the failure of the Borrowers to borrow, continue or
convert a Loan after the Borrower Representative has given (or is deemed to
have given) a Notice of Borrowing or a Notice of Conversion/ Continuation;
(c) the failure of the Borrowers to make any prepayment
in accordance with any notice delivered under SECTION 2.7; or
(d) the prepayment (including pursuant to SECTIONS 2.6,
2.7 or 2.8) or other payment (including after acceleration thereof) of an
Eurodollar Rate Loan on a day that is not the last day of the relevant
Interest Period or the conversion pursuant to SECTION 2.4 of any Eurodollar
Rate Loan to a Base Rate Loan on a day that is not the last day of the
respective Interest Period; including any such loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain its
Eurodollar Rate Loans hereunder or from fees payable to terminate the
deposits from which such funds were obtained or from charges relating to
any Offshore Currency Loans;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Eurodollar Rate Loans
or from fees payable to terminate the deposits from which such funds were
obtained. For purposes of calculating amounts payable by the Borrowers to
the Lenders under this SECTION and under SECTION 4.3(A), each Eurodollar
Rate Loan made by a Lender (and each related reserve, special deposit or
similar requirement) shall be conclusively deemed to have been funded at
the Eurodollar Rate used in determining the Eurodollar Rate for such
Eurodollar Rate Loan by a matching deposit or other borrowing in the
interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Eurodollar Rate Loan is in fact so funded.
4.5 INABILITY TO DETERMINE RATES. If the Agent determines
that for any reason adequate and reasonable means do not exist for
determining the Eurodollar Rate for any requested Interest Period with
respect to a proposed Eurodollar Rate Loan, or that the Eurodollar Rate
applicable pursuant to SECTION 2.8(A) for any requested Interest Period
with respect to a proposed Eurodollar Rate Loan does not adequately and
fairly reflect the cost to the Lenders of funding such Loan, the Agent will
promptly so notify the Borrower Representative and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Eurodollar
Rate Loans hereunder shall be suspended until the Agent upon the
instruction of the Majority Lenders revokes such notice in writing. Upon
receipt of such notice, the Borrower Representative may revoke any Notice
of Borrowing or Notice of Conversion/Continuation then submitted by it. If
the Borrower Representative does not revoke such Notice, the Lenders shall
make, convert or continue the Loans, as proposed by the Borrower
Representative, in the amount specified in the applicable notice submitted
by the Borrower Representative, but such Loans shall be made, converted or
continued as Base Rate Loans instead of Eurodollar Rate Loans. In the case
of any Offshore Currency Loans, the advance or continuation shall be in an
aggregate amount equal to the Equivalent Amount of the originally requested
advance or continuation in the Offshore Currency, and, to that end, any
outstanding Offshore Currency Loans which are the subject of any
continuation in the Offshore Currency, shall be redenominated and converted
into Base Rate Loans in U.S. Dollars with effect from the last day of the
Interest Period with respect to any such Offshore Currency Loans.
4.6 CERTIFICATES OF LENDERS. Any Lender claiming
reimbursement or compensation under this Article IV shall deliver to the
Borrower Representative (with a copy to the Agent) a certificate setting
forth in reasonable detail the amount payable to the Lender hereunder and
such certificate shall be prima facie evidence of the amounts due
thereunder.
4.7 SURVIVAL. The agreements and obligations of the
Borrowers in this Article IV shall survive the payment of all other
Obligations.
ARTICLE V.
CONDITIONS PRECEDENT
5.1 CONDITIONS OF INITIAL LOANS. The obligation of the
Lenders to undertake the Commitment and the Offshore Currency Lenders to
undertake the Offshore Currency Commitment and to make the initial Loan
hereunder on the Agreement Date and the obligation of any Issuing Bank to
issue the initial Letter of Credit is subject to the condition that the
Agent shall have received on or before the Agreement Date all of the
following, in form and substance satisfactory to the Agent, and in
sufficient copies for the Issuing Banks and each Lender:
(1) This duly executed Agreement;
(2) A duly executed Note to the order of each Lender
(other than the Offshore Currency Lenders) in the amount of such Lender's
Commitment Percentage and a duly executed Note to the order of each
Offshore Currency Lender in the amount of such Offshore Currency Lender's
Offshore Currency Commitment Percentage;
(3) A loan certificate signed by an officer of each
Borrower in substantially the form of EXHIBIT G attached hereto, including
a certificate of incumbency with respect to at least two executive officers
of such Borrower, together with appropriate attachments which shall
include, without limitation, the following: (A) a copy of the Certificate
of Incorporation (or the foreign equivalent thereof) of such Borrower,
certified (if such Borrower is organized under the laws of a United States
jurisdiction) to be true, complete and correct by the Secretary of State
for the jurisdiction of its incorporation, (B) a true, complete and correct
copy of the By-Laws of such Borrower, (C) a true, complete and correct copy
of the resolutions of such Borrower authorizing the borrowing hereunder and
the execution, delivery and performance by such Borrower of the Loan
Documents, (D) certificates of good standing (or the foreign equivalent
thereof) from such Borrower's jurisdiction of incorporation, (E) copies of
employment contracts for key management level employees of such Borrower,
and (F) a copy of any shareholders' or voting trust or other similar
agreement among the shareholders of such Borrower certified to be true,
complete and correct by a Responsible Officer of such Borrower;
(4) A certificate signed by an authorized officer of
Murex Diagnostics Pty, IMTC Holdings B.V., Murex Diagnostics Benelux B.V.,
Murex Diagnosticos S.A., Murex Diagnostics S.A., Murex Diagnostics GmbH,
and Murex Diagnostici S.p.A., together with appropriate attachments which
shall include, without limitation, the following: (A) a copy of the
Certificate of Incorporation (or equivalent thereof) of such Person
certified to be true, complete and correct by such officer, (B) a true,
complete and correct copy of the By-Laws (or equivalent thereof) of such
Person, (C) a true, complete and correct copy of the resolutions of such
Person authorizing the execution and delivery of the Loan Documents to
which it is a party; and (D) certificates of good standing (or the foreign
equivalent thereof) from each jurisdiction in which such Person does
business;
(5) The Guaranty Agreements duly executed by each
Guarantor;
(6) The Security Agreements duly executed by the
Borrowers;
(7) The License Security Agreement duly executed by
Murex Diagnostics Corporation;
(8) The Stock Pledge Agreements duly executed by IMTC
Holdings B.V.;
(9) A duly executed Landlord's Consent executed by the
Landlord of the real property leased by a Borrower in Norcross, Georgia;
(10) The opinions of counsel to the Borrowers and
Guarantors located in the United Kingdom, Barbados, Germany, France and The
Netherlands, each in form and substance satisfactory to the Agent and its
counsel;
(11) [Intentionally Omitted];
(12) Payment of all documentary stamp, intangible taxes
or recording fees payable in connection with the recording of any of the
Loan Documents including such sums, if any, due in connection with any
future Loans;
(13) Lien search results (or the equivalent thereof) with
respect to each Borrower from all appropriate jurisdictions and filing
offices;
(14) Original Uniform Commercial Code financing
statements (or the foreign equivalent thereof) signed by each Borrower as
debtor and naming the respective Collateral Agent as secured party to be
filed in all appropriate jurisdictions, in such form as shall be
satisfactory to the Agent;
(15) The opinion of Long, Xxxxxxxx & Xxxxxx, counsel to
the Borrowers and the Guarantors, in form and substance satisfactory to the
Agent;
(16) A duly executed Borrowing Base Certificate dated as
of the Agreement Date;
(17) Unaudited consolidating financial statements for
IMTC for the nine (9) month period ending September, 1996, and pro forma
financial statements reflecting the outcome of the Chiron Litigation;
(18) Certificates of insurance, loss payee endorsements,
with respect to the insurance policies covering the assets (other than real
property) of Borrowers and otherwise meeting the requirements of SECTION
7.6 hereof;
(19) Copies of any pay-off letters, termination
statements, cancelled mortgages and the like required by the Agent or the
Lenders in connection with the removal of any Liens (other than Permitted
Liens) against the assets of the Borrowers (including, but not limited to,
the release of all Liens of Wachovia Bank of Georgia, N.A. against the
assets of the Borrowers and a letter from Barclays Bank, PLC addressed to
the U.K. Borrowers and stating the agreement of Barclays Bank PLC to
release its Liens against the assets of the U.K. Borrowers upon receipt of
a Letter of Credit);
(20) Payment of all fees and expenses payable to the
Agent in connection with the execution and delivery of this Agreement,
including, without limitation, fees and expenses of counsel to the Agent;
and
(21) A certificate signed by a Responsible Officer, dated
as of the Agreement Date, stating that:
(a) the representations and warranties contained in
ARTICLE VII are true and correct on and as of such date, as
though made on and as of such date;
(b) no Default or Event of Default exists or would
result from the initial Borrowing on the Agreement Date; and
(c) there has occurred since September 30, 1996, no
event or circumstance that has resulted or could reasonably be
expected to result in a Material Adverse Effect;
(22) A draft of the consolidated financial statements of
IMTC for the period ending on September 30, 1996; and
(23) Such other approvals, opinions, documents or
materials as the Agent, any Issuing Bank or any Lender may reasonably
request.
5.2 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of
the Lenders to make each Loan in U.S. Dollars and the Offshore Currency
Lenders to make each Loan in an Offshore Currency, including the initial
Loan hereunder, or to continue or convert any Loan under SECTION 2.4 and
the obligation of the Issuing Banks to Issue any Letter of Credit
(including the initial Letter of Credit) is subject to the satisfaction of
the following conditions precedent on the relevant Borrowing Date,
Conversion/Continuation Date or Issuance Date:
(a) The Agent shall have received (with, in the case of
the initial Loan only, a copy for each Lender) a Notice of Borrowing or a
Notice of Conversion/Continuation, as applicable or in the case of any
Issuance of any Letter of Credit, the Issuing Bank and the Agent shall have
received an L/C Application or L/C Amendment Application, as required under
SECTION 3.2;
(b) The representations and warranties in ARTICLE VI
shall be true and correct, and shall be deemed to be made, at and as of the
Agreement Date and the date of the Borrowing of each Loan which will
increase the principal amount of the Loans outstanding, or upon the
issuance of each Letter of Credit hereunder, except to the extent such
representations and warranties (a) relate expressly to an earlier date,
(b) were previously fulfilled in accordance with the terms hereof and to
the extent subsequently inapplicable, or (c) are modified as a result of
activities of the Borrowers or changes in circumstances, in any case as
permitted hereunder or as consented to or waived in writing in accordance
with SECTION 11.1 hereof, and all representations and warranties made under
this Agreement shall survive, and not be waived by, the execution hereof by
the Agent, the Issuing Banks, and the Lenders, or by the making of any Loan
or the issuance of any Letter of Credit under this Agreement.
(c) No Default, Event of Default or Borrowing Base
Deficiency shall exist or shall result from such Borrowing or continuation
or conversion or Issuance.
Each Notice of Borrowing, Notice of Conversion/Continuation and L/C
Application or L/C Amendment Application submitted by the Borrower
Representative hereunder shall constitute a representation and warranty by
the Borrowers hereunder, as of the date of each such notice and as of each
Borrowing Date, Conversion/Continuation Date, or Issuance Date, as
applicable, that the conditions in this SECTION 5.2 are satisfied.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to the Agent, the
Issuing Bank and each Lender that:
6.1 CORPORATE EXISTENCE AND POWER. Such Borrower:
(a) is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation;
(b) has the power and authority and all governmental
licenses, authorizations, consents and approvals to own its assets, carry
on its business and to execute, deliver, and perform its obligations under
the Loan Documents;
(c) is duly qualified as a foreign corporation and in
good standing under the laws of each jurisdiction where its ownership,
lease or operation of property or the conduct of its business requires such
qualification or license and the failure to be qualified would have a
Material Adverse Effect on such Borrower; and
(d) is in compliance with all material Requirements of
Law.
6.2 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The
execution, delivery and performance by each Borrower of this Agreement and
each other Loan Document, have been duly authorized by all necessary
corporate action, and do not and will not:
(a) contravene the terms of such Borrower's Organization
Documents;
(b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document
evidencing any Contractual Obligation to which any Borrower is a party or
any order, injunction, writ or decree of any Governmental Authority to
which any Borrower or its property is subject; or
(c) violate any Requirement of Law.
6.3 GOVERNMENTAL AUTHORIZATION. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with,
any Governmental Authority (except for recordings or filings in connection
with the Liens granted to the Agent or a Collateral Agent under the
Collateral Documents) is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, any Borrower
of the Agreement or any other Loan Document.
6.4 BINDING EFFECT. This Agreement and each other Loan
Document to which such Borrower is a party constitute the legal, valid and
binding obligations of such Borrower enforceable against such Borrower in
accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles
relating to enforceability.
6.5 LITIGATION. Except as specifically disclosed in SCHEDULE
6.5, there are no actions, suits, proceedings, claims or disputes pending,
or to the knowledge of the Borrowers, threatened or contemplated, at law,
in equity, in arbitration or before any Governmental Authority, against
IMTC, or any of its Subsidiaries or any of their respective properties that
involve an amount in excess of $250,000 and that is not fully covered by
insurance and none of the matters disclosed on SCHEDULE 6.5:
(a) purport to affect or pertain to this Agreement or
any other Loan Document, or any of the transactions contemplated hereby or
thereby; or
(b) if determined adversely to IMTC or any Subsidiary,
would reasonably be expected to have a Material Adverse Effect.
No injunction, writ, temporary restraining order or any order of any nature
has been issued by any court or other Governmental Authority purporting to
enjoin or restrain the execution, delivery or performance of this Agreement
or any other Loan Document, or directing that the transactions provided for
herein or therein not be consummated as herein or therein provided.
6.6 NO DEFAULT. No Default or Event of Default exists or
would result from the incurring of any Obligations by the Borrowers or from
the grant or perfection of the Liens of the Agent, the Collateral Agents,
the Issuing Bank and the Lenders on the Collateral. Neither IMTC nor any
Subsidiary is in default under or with respect to any Contractual
Obligation in any respect (including the granting or perfection of Liens on
the Collateral) which, individually or together with all such defaults,
could reasonably be expected to result in liability to IMTC or such
Subsidiary in excess of $250,000.
6.7 ERISA COMPLIANCE. Except as specifically disclosed in
SCHEDULE 6.7:
(a) Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code and other federal or
state law. Each Plan which is intended to qualify under Section 401(a) of
the Code has received a favorable determination letter from the IRS and, to
the knowledge of the Borrowers, nothing has occurred which would cause the
loss of such qualification. Each Borrower and each ERISA Affiliate has
made all required contributions to any Plan subject to Section 412 of the
Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
(b) There are no pending or, to the knowledge of
Borrowers, threatened claims, actions or lawsuits, or action by any
Governmental Authority, with respect to any Plan which has resulted or
could reasonably be expected to result in liability to IMTC or any
Subsidiary in excess of $250,000. There has been no prohibited transaction
or violation of the fiduciary responsibility rules with respect to any Plan
which has resulted or could reasonably be expected to result in liability
to IMTC or any Subsidiary in excess of $250,000.
(c) i) No ERISA Event has occurred or is reasonably
expected to occur; (ii) no Pension Plan has any Unfunded Pension Liability;
(iii) neither any Borrower nor any ERISA Affiliate has incurred, or
reasonably expects to incur, any liability under Title IV of ERISA with
respect to any Pension Plan (other than premiums due and not delinquent
under Section 4007 of ERISA); (iv) neither any Borrower nor any ERISA
Affiliate has incurred, or reasonably expects to incur, any liability (and
no event has occurred which, with the giving of notice under Section 4219
of ERISA, would result in such liability) under Section 4201 or 4243 of
ERISA with respect to a Multiemployer Plan; and (v) neither any Borrower
nor any ERISA Affiliate has engaged in a transaction that could be subject
to Section 4069 or 4212(c) of ERISA.
6.8 USE OF PROCEEDS; MARGIN REGULATIONS. The proceeds of the
Loans are to be used solely for the purposes set forth in and permitted by
SECTION 7.12 and SECTION 8.7. No Borrower is generally engaged in the
business of purchasing or selling Margin Stock or extending credit for the
purpose of purchasing or carrying Margin Stock.
6.9 TAXES. Except as disclosed on SCHEDULE 6.9, IMTC and its
Subsidiaries have filed all Federal and other tax returns and reports
required to be filed, and have paid all Federal and other taxes,
assessments, fees and other governmental charges levied or imposed upon
them or their properties, income or assets otherwise due and payable,
except those which are being contested in good faith by appropriate
proceedings and for which adequate reserves have been provided in
accordance with GAAP. There is no proposed tax assessment against IMTC or
any Subsidiary that would, if made, result in liability to IMTC or any such
Subsidiary in excess of $250,000. The charges, accruals, and reserves on
the books of IMTC and its Subsidiaries in respect of taxes are, in the
reasonable judgement of Borrowers, adequate. Except as disclosed on
SCHEDULE 6.9, neither IMTC nor any Subsidiary is presently being audited
by, or received notice of any future audit from, the Internal Revenue
Service or any other tax authority.
6.10 FINANCIAL CONDITION, FISCAL YEAR.
(a) The financial statements of IMTC and its
Subsidiaries most recently delivered to the Agent:
i) were prepared in accordance with GAAP
consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein;
ii) present fairly in all material respects the
financial condition of IMTC and its Subsidiaries as of the
date thereof and results of operations for the period covered
thereby; and
iii) show all material Indebtedness and other
liabilities, direct or contingent, of IMTC and its
consolidated Subsidiaries as of the date thereof;
(b) Since June 30, 1996, there has been no Material
Adverse Effect.
(c) The fiscal year of IMTC ends on December 31.
6.11 ENVIRONMENTAL MATTERS.
(a) Except as specifically disclosed in SCHEDULE 6.11,
the on-going operations of IMTC and each of its Subsidiaries comply in all
respects with all material Environmental Laws, except such non-compliance
which would not (if enforced in accordance with applicable law) result in
liability in excess of $250,000 in the aggregate.
(b) Except as specifically disclosed in SCHEDULE 6.11,
IMTC and each of its Subsidiaries have obtained all material licenses,
permits, authorizations and registrations required under any Environmental
Law ("ENVIRONMENTAL PERMITS") and necessary for their respective ordinary
course operations, all such Environmental Permits are in good standing, and
IMTC and each of its Subsidiaries are in compliance with all material terms
and conditions of such Environmental Permits.
(c) Except as specifically disclosed in SCHEDULE 6.11,
IMTC, any of its Subsidiaries nor any of their respective present property
or operations, is subject to any outstanding written order from or
agreement with any Governmental Authority, nor subject to any judicial or
docketed administrative proceeding, respecting any Environmental Law,
Environmental Claim or Hazardous Material.
(d) Except as specifically disclosed in SCHEDULE 6.11,
there are no Hazardous Materials or other conditions or circumstances
existing with respect to any property of IMTC or any Subsidiary, or arising
from operations of IMTC or any of its Subsidiaries that would reasonably be
expected to give rise to Environmental Claims with a potential liability of
IMTC or any of its Subsidiaries in excess of $250,000 in the aggregate for
any such condition, circumstance or property. In addition (i) neither IMTC
nor any Subsidiary has any underground storage tanks (x) that are not
properly registered or permitted under applicable Environmental Laws, or
(y) that are leaking or disposing of Hazardous Materials off-site, and
(ii) IMTC and its Subsidiaries have notified all of their employees of the
existence, if any, of any health hazard arising from the conditions of
their employment and have met all notification requirements under Title III
of CERCLA and all other Environmental Laws.
6.12 REGULATED ENTITIES. Neither IMTC nor any Subsidiary is
an "Investment Company" within the meaning of the Investment Company Act of
1940. No Borrower is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Interstate Commerce
Act, any state public utilities code, or any other Federal or state statute
or regulation limiting its ability to incur Indebtedness.
6.13 NO BURDENSOME RESTRICTIONS. No Borrower is a party to or
bound by any Contractual Obligation, or subject to any restriction in any
Organization Document, or any Requirement of Law, which could reasonably be
expected to have a Material Adverse Effect.
6.14 BUSINESS AND COLLATERAL LOCATIONS.
(a) On the date of this Agreement the office where each
Borrower keeps its books and records concerning its Accounts and other
Collateral, and such Borrower's chief place of business and chief executive
office, is located at the respective address set forth on SCHEDULE 6.14(A).
SCHEDULE 6.14(A) contains a complete and accurate list, as of the date of
this Agreement, of all of the places of business of each Borrower.
(b) SCHEDULE 6.14(B) contains a complete and accurate
list, as of the date of this Agreement, of (i) the locations of all
Inventory (other than Inventory in transit and Inventory in the aggregate
with a fair market value not exceeding $10,000 at any time) and Equipment
of any Borrower, and (ii) if any Inventory (other than Inventory in
transit) of any Borrower is not in the possession or control of such
Borrower, the name and mailing address of each bailee, processor,
consignee, warehouseman or other Person in possession or control thereof.
6.15 REAL PROPERTY. SCHEDULE 6.15 contains a complete and
accurate list, as of the date of this Agreement, of (a) the address and
legal descriptions of any real property owned by IMTC or any of its
Subsidiaries and (b) the name and mailing address of the landlord, and the
property address, of all real property not owned by any Borrower on which
any Fixtures or Equipment owned by any Borrower is located (to the extent
such information is not included on SCHEDULE 6.14).
6.16 ELIGIBILITY OF COLLATERAL. Each Account or item of
Inventory which the Borrower Representative or any Borrower shall,
expressly or by implication (by inclusion on a Borrowing Base Certificate
or otherwise), request the Agent to classify as an Eligible Account or as
Eligible Inventory, respectively, will, to the best of such Borrower's
knowledge, as of the time when such request is made, conform in all
respects to the requirements of such classification set forth in the
respective definitions of "Eligible Account" and "Eligible Inventory, as
applicable, set forth herein.
6.17 INTELLECTUAL PROPERTY; LICENSES. Each Borrower owns
directly or is entitled to use, by license or otherwise, adequate
Intellectual Property to continue to conduct its business as heretofore
conducted by it, and all Intellectual Property existing on the date hereof,
(together with in the case of Patents, trademarks and copyrights, the date
of issuance thereof), is listed on SCHEDULE 6.17. With respect to
Intellectual Property of any Borrower unless such Intellectual Property has
become obsolete or is no longer used or useful in the conduct of the
business of such Borrower:
(a) it is valid and enforceable, is subsisting, and has
not been adjudged invalid or unenforceable, in whole or in part;
(b) Such Borrower has made all necessary filings and
recordations to protect its interest therein, including, without
limitation, recordations of all of its interest in its Patent Property and
trademark property in the United States Patent and Trademark Office and, to
the extent necessary for the conduct of such Borrower's business, in
corresponding offices throughout the world and its claims to its copyright
property in the United States Copyright Office and, to the extent necessary
for the conduct of such Borrower's business, in corresponding offices
throughout the world;
(c) Except as set forth on SCHEDULE 6.5, such Borrower
is the exclusive owner of the entire and unencumbered right, title and
interest in and to such Intellectual Property owned by it and no claim has
been made that the use of any of its owned Intellectual Property does or
may violate the asserted rights of any third party; and
(d) Such Borrower has performed, and such Borrower will
continue to perform, all acts, and such Borrower has paid and will continue
to pay, all required fees and taxes, to maintain each and every item of
such Intellectual Property in full force and effect throughout the world,
as applicable.
Except as set forth on SCHEDULE 6.17, each Borrower owns directly or is
entitled to use, by license or otherwise, all patents, trademarks,
copyrights, mask works, licenses, technology, know-how, processes and
rights with respect to any of the foregoing used in, necessary for or of
importance to the conduct of such Borrower's business, the lack of
ownership of, or entitlement to, would have a Material Adverse Effect.
6.18 OWNERSHIP OF ASSETS; LIENS. IMTC and each of its
Subsidiaries owns good and marketable title (subject to Permitted Liens) to
all of its properties and assets, real and personal, tangible and
intangible, of any nature whatsoever (including all Intellectual Property,
other than Intellectual Property licensed to it). None of the Collateral
is subject to any Lien (including but not limited to Liens pursuant to
Capitalized Leases under which any Borrower is a lessee) except PERMITTED
LIENS.
6.19 SUBSIDIARIES. SCHEDULE 6.19 sets forth, for IMTC, a
complete and accurate list of all IMTC's Subsidiaries, and, for each such
Subsidiary, a complete and accurate statement of (a) IMTC's and each of its
Subsidiaries' percentage ownership of each of their respective Subsidiaries
(including a description of the outstanding Capital Stock of such
Subsidiary), (b) the state or other jurisdiction of formation or
incorporation of each such Subsidiary, (c) each state or other jurisdiction
in which each such Subsidiary is qualified to do business on the date of
this Agreement and (d) all of such Subsidiary's trade names, trade styles
or doing business forms on the date of this Agreement.
6.20 PARTNERSHIPS; JOINT VENTURES. Neither IMTC nor any of
its Subsidiaries is a partner or joint venturer in any partnership or joint
venture other than (i) its Subsidiaries listed on SCHEDULE 6.19 and (ii)
the partnerships and joint ventures listed on SCHEDULE 6.20. SCHEDULE 6.20
sets forth, for each partnership or joint venture that is not a Subsidiary
of IMTC, a complete and accurate statement of (a) the percentage ownership
of each such partnership or joint venture by IMTC or any of its
Subsidiaries, (b) the state or other jurisdiction of formation or
incorporation, as appropriate, of each such partnership or joint venture,
(c) each state in which each such partnership or joint venture is qualified
to do business on the date of this Agreement and (d) all of each such
partnership's or joint venture's trade names, trade styles or doing
business forms on the date of this Agreement.
6.21 SOLVENCY. Each Borrower is Solvent.
6.22 MATERIAL CONTRACTS; LABOR MATTERS. SCHEDULE 6.22
contains a complete list, as of the date of this Agreement, of each
contract or agreement to which any Borrower is a party which is for a term
of three years or longer, or provides for payment or receipt of an
aggregate amount of $1,000,000 or more and, upon the request of the Agent
or any Lender, such Borrower will provide the Agent or such Lender, as
applicable, with a copy of any such contract or agreement. Except as
disclosed on SCHEDULE 6.22: (a) no labor contract to which any Borrower is
a party or is otherwise subject is scheduled to expire prior to the
Maturity Date; (b) no Borrower has, within the two-year period preceding
the date of this Agreement, taken any action which would have constituted
or resulted in a "plant closing" or "mass layoff" within the meaning of the
Federal Worker Adjustment and Retraining Notification Act of 1988 or any
similar applicable federal, state or local law, and no Borrower has a
reasonable expectation that any such action is or will be required at any
time prior to the Maturity Date; and (c) on the Agreement Date (i) no
Borrower is a party to any labor dispute (other than any immaterial
disputes with such Borrower's employees as individuals and not affecting
such Borrower's relations with any labor group or its workforce as a whole)
and (ii) there are no pending or, to such Borrower's knowledge, threatened
strikes or walkouts relating to any labor contracts to which any Borrower
is a party or is otherwise subject.
6.23 INSURANCE. The Borrowers have insurance meeting the
requirements of SECTION 7.6 hereof, and such insurance policies are in full
force and effect. As of the Agreement Date, all insurance maintained by
any Borrower is described on SCHEDULE 6.23 hereto.
6.24 REPRESENTATIONS AND WARRANTIES RELATING TO ACCOUNTS.
With respect to all Accounts, each Borrower hereby warrants and represents
to the Agent, the Lenders and the Issuing Bank that:
(a) They are genuine and in all respects what they
purport to be, and they are not evidenced by judgments;
(b) They arise out of completed, BONA FIDE sales of
goods or rendition of services by each Borrower in the
ordinary course of its business and in accordance with the
terms and conditions of all purchase orders, contracts or
other documents relating thereto and forming a part of the
contract between such Borrower and the Account Debtors;
(c) They are for liquidated amounts maturing as stated
in the duplicate invoice covering such sale or rendition of
services, copies of which have been furnished or are available
to the Agent;
(d) Except as disclosed on SCHEDULE 6.24, no Borrower
has made an agreement with any Account Debtor thereunder for
any deduction therefrom, except discounts or allowances which
are granted by such Borrower in the ordinary course of its
business for prompt payment or volume purchases and which are
reflected in the calculation of the net amount of each
respective invoice related thereto;
(e) There are no facts, events or occurrences of which
such Borrower has knowledge which in any way impair the
validity or enforceability thereof or which will reduce the
amount payable thereunder from the face amount of the invoice
and statements delivered to the Agent with respect thereto;
(f) To the best of such Borrower's knowledge, the
Account Debtors thereunder (i) had the capacity to contract at
the time any contract or other document giving rise to the
Accounts were executed and (ii) are solvent; and
(g) No Borrower has knowledge of any fact or
circumstance which would impair the validity or collectibility
of the Accounts, and to the best of such Borrower's knowledge
there are no proceedings or actions which are threatened or
pending against any Account Debtor thereunder which might
result in any material adverse change in such Account Debtor's
financial condition or the collectibility of such Account.
6.25 INVENTORY. Except as specifically disclosed in a
Borrowing Base Certificate or otherwise disclosed to and acknowledged by
Agent in writing, with respect to all Eligible Inventory:
(a) All such Inventory is located on the premises
listed in SCHEDULE 6.14 and is of good and merchantable quality and in
conformance with such Borrower's performance standards;
(b) Such Borrower has good, indefeasible and marketable
title to such Inventory and no such Inventory is subject to
any Lien whatsoever, except for Liens of Agent hereunder and
Permitted Liens;
(c) Except as specified in SCHEDULE 6.14 or as notified
in writing to Agent, no such Inventory is stored with a
bailee, warehouseman, or similar party; and
(d) No such Inventory has been consigned to any
Person.
6.26 FULL DISCLOSURE. None of the representations or
warranties made by the Borrowers in the Loan Documents as of the date such
representations and warranties are made or deemed made, and none of the
statements contained in any report, or certificate furnished by or on
behalf of the Borrowers in connection with the Loan Documents, contains any
untrue statement of a material fact or omits any material fact required to
be stated therein or necessary to make the statements made therein, in
light of the circumstances under which they are made, not misleading as of
the time when made or delivered.
ARTICLE VII.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or
the Issuing Bank shall have any L/C Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, unless the Majority Lenders waive
compliance in writing:
7.1 FINANCIAL STATEMENTS. The Borrower Representative shall
deliver to the Agent and each Lender, in form and detail satisfactory to
the Agent:
(a) as soon as available, but not later than 120 days
after the end of each fiscal year, a copy of the audited
balance sheet of IMTC and its Subsidiaries as at the end of
such year and the related statements of income or operations,
shareholders' equity and cash flows for such year, on a
consolidated and consolidating basis, setting forth in each
case in comparative form the figures for the previous fiscal
year, and accompanied by the opinion of Deloitte & Touche,
L.L.P., or of another nationally-recognized independent public
accounting firm reasonably acceptable to the Agent
("INDEPENDENT AUDITOR") which report shall state that such
consolidated financial statements present fairly the financial
position for the periods indicated in conformity with GAAP
applied on a basis consistent with prior years. Such opinion
shall not be qualified or limited because of a restricted or
limited examination by the Independent Auditor of any material
portion of IMTC's or any Subsidiary's records, and
(b) as soon as available, but not later than 45 days
after the end of each of month, a copy of the unaudited
balance sheet of IMTC and its Subsidiaries as of the end of
such month and the related statements of income, shareholders'
equity and cash flows for such month, on a consolidating basis
and certified by a Responsible Officer as presenting fairly in
all material respects, in accordance with GAAP (subject to
ordinary, good faith year-end audit adjustments), the
financial position and the results of operations of IMTC and
the Subsidiaries.
7.2 CERTIFICATES; OTHER INFORMATION. The Borrower
Representative shall furnish to the Agent and each Lender:
(a) concurrently with the delivery of the financial
statements referred to in SUBSECTION 7.1(A), a certificate of the
Independent Auditor stating that in making the examination necessary
therefor to its knowledge each Borrower is in compliance with the covenants
of this Agreement;
(b) concurrently with the delivery of the financial
statements referred to in SUBSECTIONS 7.1(B), a Compliance Certificate
executed by a Responsible Officer of IMTC;
(c) promptly, copies of all financial statements and
reports that any Borrower sends to its shareholders;
(d) promptly, such additional information regarding the
business, financial or corporate affairs of IMTC or any Subsidiary as the
Agent, at the request of any Lender, may from time to time reasonably
request;
(e) promptly, from time to time, a written report of any
change in the information set forth in SCHEDULE 6.19 or SCHEDULE 6.20
concerning any of the Subsidiaries, or any partnership or joint venture;
(f) from time to time and at such other times as the
Agent, or any Lender requesting through the Agent, may reasonably request,
a written report of any material change to the list of patents, trademarks,
copyrights and other Intellectual Property information set forth in
SCHEDULE 6.17;
(g) promptly upon receipt, a copy of any "management
letter" received by any Borrower that has been prepared by its internal or
outside accountants;
(h) within thirty (30) days after the end of each month,
and at such other times as the Agent, or any Lender requesting through the
Agent, may request, a Borrowing Base Certificate, executed and certified as
accurate by a Responsible Officer of the Borrower Representative;
(i) upon request of the Agent, an aging of all Accounts
of the Borrowers as of the most recent month end, in form and content
reasonably acceptable to the Agent;
(j) upon request of the Agent, a certification report
with respect to the Inventory of the Borrowers as of the most recent month
end for all locations thereof, in form and content reasonably acceptable to
the Agent;
(k) promptly after the sending thereof, copies of all
financial statements, reports and other information which any Guarantor or
any Borrower files with the Securities and Exchange Commission;
(l) promptly upon receipt of same, copies of all sales
reports prepared by Xxxxxx;
(m) promptly after the preparation of same, copies of
all material press releases issued by IMTC or any Subsidiary; and
(n) as soon as available but not later than thirty (30)
days prior to the end of any fiscal year, copies of any annual budget or
projections for the next fiscal year prepared by IMTC.
7.3 NOTICES. The Borrower Representative shall promptly
notify the Agent and each Lender:
(a) of the occurrence of any Event of Default, and of
the occurrence or existence of any event or circumstance that could
reasonably be expected to result in an Event of Default;
(b) of (i) any breach or non-performance of, or any
default under, any Contractual Obligation of any Borrower which could
reasonably be expected to result in a Material Adverse Effect; and (ii) any
material dispute, litigation, investigation, proceeding or suspension which
may exist at any time between IMTC or any of its Subsidiaries and any
Governmental Authority;
(c) (x) of the commencement of, or any material
development in, any litigation or proceeding by, against or affecting IMTC
or any Subsidiary (i) in which the amount of damages claimed is $250,000
(or its equivalent in another currency or currencies) or more, (ii) in
which injunctive or similar relief is sought and which, if adversely
determined, would reasonably be expected to have a Material Adverse Effect,
or (iii) in which the relief sought is an injunction or other stay of the
performance of this Agreement or any Loan Document, or (y) of the entry of
any judgment against any Borrower in excess of $100,000;
(d) of any change or proposed change in any of the
information set forth on SCHEDULE 6.14 or SCHEDULE 6.15, including but not
limited to (i) any change in the locations of any Borrower's Inventory
(other than Inventory in transit), (ii) the identity of any new bailee,
processor, warehouseman, consignee or other Person in possession or control
of any of any Borrower's Inventory, (iii) upon the Borrower learning
thereof, any change in the name or address of the lessor or owner of any
Real Property leased to any Borrower, (iv) any proposed change in the
location of the chief executive office or chief place of business of any
Borrower, and (v) any proposed opening, closing or other change in the list
of offices and other places of business of any Borrower;
(e) any change in the name of any Borrower;
(f) any material change in the insurance information set
forth in SCHEDULE 6.23;
(g) any material default by any Account Debtor, or other
Person obligated to any Borrower, under any contract, chattel paper, note
or other evidence of amounts payable or due or to become due to any
Borrower if the amount payable under such contract, chattel paper, note or
other evidence of amounts payable or due or to become due is $1,000,000 or
greater;
(h) upon, but in no event later than 5 days after,
becoming aware of (i) any and all enforcement, cleanup, removal or other
governmental or regulatory actions instituted, completed or threatened
against IMTC or any Subsidiary or any of their respective properties
pursuant to any applicable Environmental Laws, (ii) all other Environmental
Claims, and (iii) any environmental or similar condition on any real
property adjoining or in the vicinity of the Real Property of IMTC or any
Subsidiary that could reasonably be anticipated to cause such property or
any part thereof to be subject to any restrictions on the ownership,
occupancy, transferability or use of such property under any Environmental
Laws;
(i) of the occurrence of any of the following events
affecting any Borrower or any ERISA Affiliate (but in no event more than 10
days after such event), and deliver to the Agent and each Lender a copy of
any notice with respect to such event that is filed with a Governmental
Authority and any notice delivered by a Governmental Authority to any
Borrower or any ERISA Affiliate with respect to such event:
i) an ERISA Event;
ii) a material increase in the Unfunded Pension
Liability of any Pension Plan;
iii) the adoption of, or the commencement of
contributions to, any Plan subject to Section 412 of the Code
by any Borrower or any ERISA Affiliate; or
iv) the adoption of any amendment to a Plan subject
to Section 412 of the Code, if such amendment results in a
material increase in contributions or Unfunded Pension
Liability; and
(j) of any material change in accounting policies or
financial reporting practices by IMTC or, any of its Subsidiaries;
Each notice under this Section shall be accompanied by a
written statement by a Responsible Officer of the Borrower Representative
setting forth details of the occurrence referred to therein, and stating
what action such Borrower or any affected Subsidiary proposes to take with
respect thereto and at what time. Each notice under SECTION 7.3(A) shall
describe with particularity any and all clauses or provisions of this
Agreement or other Loan Document that have been (or foreseeably will be)
breached or violated.
7.4 PRESERVATION OF CORPORATE EXISTENCE, ETC. Each Borrower
shall:
(a) preserve and maintain in full force and effect its
corporate existence and good standing under the laws of its state or
jurisdiction of incorporation;
(b) preserve and maintain in full force and effect all
governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable (in any material respect) to the normal
conduct of its business;
(c) use reasonable efforts, in the ordinary course of
business, to preserve its business organization and goodwill; and
(d) preserve or renew all of its registered patents,
trademarks, trade names and service marks to the extent the same are
necessary for or of importance to the conduct of the Borrower's business.
7.5 MAINTENANCE OF PROPERTY. Each Borrower shall maintain,
and preserve all its respective property which is used or useful in its
business in good working order and condition, ordinary wear and tear
excepted and make all necessary repairs thereto and renewals and
replacements thereof.
7.6 INSURANCE. The Borrowers shall maintain, with
financially sound and reputable independent insurers, insurance with
respect to its properties and business against loss or damage of the kinds
customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried
under similar circumstances by such other Persons, including workers'
compensation insurance, public liability and property and casualty
insurance. All casualty insurance maintained by the Borrowers shall name
the Agent as loss payee and all liability insurance shall name the Agent as
additional insured for the benefit of the Issuing Bank and the Lenders, as
their interests may appear. All policies of insurance required to be
maintained under this Agreement shall be in form and with insurers
recognized as adequate by the Agent and all such policies shall be in such
amounts as may be reasonably satisfactory to the Agent and shall, by an
endorsement or independent instrument furnished to the Agent provide that
the insurance companies will give Agent at least thirty (30) days prior
written notice before any such policy or policies of insurance shall be
materially altered or canceled. On the Agreement Date, and upon the
renewal, replacement, or addition of each policy of insurance thereafter,
the Borrower Representative shall deliver to Agent a copy of each policy of
insurance and a certificate of insurance that evidences the existence of
each policy of insurance, payment of all premiums therefor and compliance
with all provisions of this Agreement. In addition, the Borrower
Representative shall notify the Agent promptly of any occurrence causing a
loss or decline in value in excess of $500,000 in the aggregate of any real
or personal property and the estimated (or actual, if available) amount of
such loss or decline.
7.7 PAYMENT OF OBLIGATIONS. IMTC shall, and shall cause each
Subsidiary to, pay and discharge as the same shall become due and payable,
all their respective obligations and liabilities, including:
(a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are
being contested in good faith by appropriate proceedings and adequate
reserves in accordance with GAAP or its foreign equivalent are being
maintained by IMTC or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law
become a Lien upon its respective property; and
(c) all Indebtedness as and when due and payable.
7.8 COMPLIANCE WITH LAWS. The Borrowers shall comply in all
material respects with all Requirements of Law of any Governmental
Authority having jurisdiction over it or its business (including the
Federal Fair Labor Standards Act), except such as may be contested in good
faith or as to which a bona fide dispute may exist.
7.9 COMPLIANCE WITH ERISA. Each Borrower shall, and shall
cause each of its ERISA Affiliates to: (a) maintain each Plan in
compliance in all material respects with the applicable provisions of
ERISA, the Code and other federal or state law; (b) cause each Plan which
is qualified under Section 401(a) of the Code to maintain such
qualification; and (c) make all required contributions to any Plan subject
to Section 412 of the Code.
7.10 INSPECTION OF PROPERTY AND BOOKS AND RECORDS. IMTC shall
maintain and shall cause each Subsidiary to maintain proper books of record
and account, in which full, true and correct entries in conformity with
GAAP, or its foreign equivalent, consistently applied shall be made of all
financial transactions and matters involving the assets and business of
IMTC and such Subsidiary. The Borrowers shall permit representatives and
independent contractors of the Agent or any Lender to visit and inspect any
of their respective properties, to examine their respective corporate,
financial and operating records, and make copies thereof or abstracts
therefrom, and to discuss their respective affairs, finances and accounts
with their respective directors, officers, and independent public
accountants (including, but not limited to, semi-annual inspections by the
Agent's field examiners for the purpose of valuing such Borrower's
Inventory and Accounts), all at the expense of the Borrowers and at such
reasonable times during normal business hours and as often as may be
reasonably desired, upon reasonable advance notice to the Borrower
Representative; PROVIDED, HOWEVER, when an Event of Default exists the
Agent or any Lender may do any of the foregoing at any time and without
advance notice.
7.11 ENVIRONMENTAL LAWS.
(a) IMTC shall, and shall cause each Subsidiary to,
conduct its operations and keep and maintain its property in compliance in
all material respects with all Environmental Laws.
(b) Upon the written request of the Agent, the Borrower
Representative shall submit to the Agent at the Borrowers' sole cost and
expense, at reasonable intervals, a report providing an update of the
status of any environmental, health or safety compliance, hazard or
liability issue identified in any notice or report required pursuant to
SUBSECTION 7.3(H), that could, individually or in the aggregate, result in
liability in excess of $250,000.
7.12 USE OF PROCEEDS. The Borrowers shall use the proceeds of
the Loans made hereunder to refinance certain Indebtedness, pay certain
amounts in connection with the settlement of the Chiron Litigation and
other litigation, for Permitted Acquisitions and acquisitions of
Intellectual Property in the ordinary course of business, and for working
capital and other general corporate purposes not in contravention of any
Requirement of Law or of this Agreement.
7.13 FURTHER ASSURANCES.
(a) The Borrowers shall ensure that all written
information, exhibits and reports furnished to the Agent or the Lenders do
not and will not contain any untrue statement of a material fact and do not
and will not omit to state any material fact or any fact necessary to make
the statements contained therein not misleading in light of the
circumstances in which made, and will promptly disclose to the Agent and
the Lenders and correct any material defect or error that may be discovered
therein or in any Loan Document or in the execution, acknowledgement or
recordation thereof.
(b) Promptly upon request by the Agent or the Majority
Lenders, the Borrowers shall do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register, any and all such
further acts, deeds, conveyances, security agreements, mortgages,
assignments, estoppel certificates, financing statements and continuations
thereof, termination statements, notices of assignment, transfers,
certificates, assurances and other instruments as the Agent or the Majority
Lenders, as the case may be, may reasonably require from time to time in
order (i) to carry out more effectively the purposes of this Agreement or
any other Loan Document, (ii) to subject to the Liens created by any of the
Collateral Documents any of the properties, rights or interests covered by
any of the Collateral Documents, (iii) to perfect and maintain the
validity, effectiveness and priority of any of the Collateral Documents and
the Liens intended to be created thereby, and (iv) to better assure,
convey, grant, assign, transfer, preserve, protect and confirm to the
Agent, the Issuing Bank and the Lenders the rights granted or now or
hereafter intended to be granted to the Agent, the Issuing Bank or the
Lenders under any Loan Document or under any other document executed in
connection therewith.
(c) The Borrowers shall complete all matters set forth
on SCHEDULE 7.13 hereto in accordance therewith and by the date of
completion set forth therein.
ARTICLE VIII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or
any Issuing Bank shall have any L/C Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, unless the Majority Lenders waive
compliance in writing:
8.1 LIMITATION ON LIENS. IMTC shall not, and shall not
suffer or permit any Material Subsidiary to, directly or indirectly, make,
create, incur, assume or suffer to exist any Lien upon or with respect to
any part of its property, whether now owned or hereafter acquired, other
than the following ("PERMITTED LIENS"):
(a) any Lien existing on property of IMTC or any
Material Subsidiary on the Agreement Date and set forth in SCHEDULE 8.1
securing Indebtedness outstanding on such date;
(b) any Lien created under any Loan Document;
(c) Liens for taxes, fees, assessments or other
governmental charges which are not delinquent or remain payable without
penalty, or to the extent that non-payment thereof is permitted by SECTION
7.7, provided that no notice of lien has been filed or recorded;
(d) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary
course of business which are not delinquent or remain payable without
penalty or which are being contested in good faith and by appropriate
proceedings, which proceedings have the effect of preventing the forfeiture
or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA and
other than on the Collateral) consisting of pledges or deposits required in
the ordinary course of business in connection with workers' compensation,
unemployment insurance and other social security legislation;
(f) Liens (other than Liens on the Collateral) on the
property of IMTC or any Material Subsidiary securing (i) the non-delinquent
performance of bids, trade contracts (other than for borrowed money),
leases, statutory obligations, (ii) contingent obligations on surety and
appeal bonds, and (iii) other non-delinquent obligations of a like nature;
in each case, incurred in the ordinary course of business , provided all
such Liens in the aggregate would not (even if enforced) cause a Material
Adverse Effect;
(g) Liens (other than Liens on the Collateral)
consisting of judgment or judicial attachment liens, provided that the
enforcement of such Liens is effectively stayed and all such Liens in the
aggregate at any time outstanding for IMTC and its Material Subsidiaries do
not exceed $500,000;
(h) easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business which, in
the aggregate, are not substantial in amount, and which do not in any case
materially detract from the value of the property subject thereto or
interfere with the ordinary conduct of the businesses of IMTC and its
Material Subsidiaries;
(i) Liens on assets of Persons which become Subsidiaries
after the date of this Agreement, PROVIDED, HOWEVER, that such Liens
existed at the time the respective Persons became Subsidiaries and were not
created in anticipation thereof and do not exceed the aggregate amount of
$500,000;
(j) purchase money security interests on any property
acquired or held by IMTC or its Material Subsidiaries in the ordinary
course of business, securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such
Equipment; PROVIDED THAT (i) any such Lien attaches to such Equipment;
concurrently with or within 20 days after the acquisition thereof,
(ii) such Lien attaches solely to the Equipment so acquired in such
transaction, (iii) the principal amount of the debt secured thereby does
not exceed 100% of the cost of such Equipment; and (iv) the principal
amount of the Indebtedness secured by any and all such purchase money
security interests (exclusive of Capitalized Leases) shall not exceed in
the aggregate $500,000 in any fiscal year;
(k) Liens securing obligations in respect of Capitalized
Leases on assets subject to such leases, provided that such Capital Leases
are otherwise permitted hereunder;
(l) Liens on Accounts owned by Murex Diagnostici S.p.A.
and described on SCHEDULE 8.1;
(m) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of set-off or
similar rights and remedies as to deposit accounts or other funds
maintained with a creditor depository institution; PROVIDED THAT (i) such
deposit account is not a dedicated cash collateral account and is not
subject to restrictions against access by IMTC on such Subsidiary in excess
of those set forth by regulations promulgated by the FRB, and (ii) such
deposit account is not intended by IMTC or any Subsidiary to provide
collateral to the depository institution; and
(n) Liens on Equipment and real property securing
Indebtedness permitted by SECTION 8.5(G) hereof.
8.2 LIQUIDATION; CHANGE IN OWNERSHIP OR NAME; DISPOSITION OR
ACQUISITION OF ASSETS; ETC. IMTC shall not, and shall not suffer or permit
any Material Subsidiary to, directly or indirectly:
(a) Liquidate or dissolve itself (or suffer any
liquidation or dissolution) or otherwise wind up its business;
(b) Sell, lease, abandon, transfer or otherwise dispose
of, in a single transaction or a series of related transactions, any
assets, property or business except (i) in the ordinary course of business
at the fair market value thereof and for cash or cash equivalents, (ii) for
physical assets used, consumed or otherwise disposed of in the ordinary
course of business, or (iii) other assets, the fair market value of which
does not exceed in the aggregate for IMTC and the Material Subsidiaries
$250,000 in any fiscal year.
(c) (i) Become a partner or joint venturer with any
third party; or (ii) acquire (A) all or any substantial part of the assets,
property or business of, or (B) any assets that constitute a division or
operating unit of the business of, any other Person, except in connection
with a Permitted Acquisition.
(d) Create any Subsidiary, unless (i) if such Subsidiary
is organized or operated in the United States, the United Kingdom or
Barbados, any such Subsidiary executes at the time of its creation a
security agreement in favor of the Collateral Agent, and all UCC-1
financing statements (or the equivalent thereof) necessary to perfect the
security interest of the Collateral Agent granted by the security
agreement, all in form and substance satisfactory to the Agent, (ii) such
Subsidiary executes at the time of its creation a guaranty agreement in
favor of the Agent, in form and substance satisfactory to the Agent,
(iii) the Agent receives such opinion letters as it may reasonably request
regarding the documents delivered pursuant to clauses (i) and (ii) above
(and, if applicable, the perfection of Liens created thereunder) if the
Subsidiary is a Material Subsidiary, and (iv) no Default exists immediately
prior to or after the creation of such Subsidiary.
(e) Change its corporate name without giving the Agent
thirty (30) days prior written notice of its intention to do so and
complying with all reasonable requirements of the Agent in regard thereto.
8.3 CONSOLIDATIONS AND MERGERS. Except as permitted by
Section 8.2, IMTC shall not, and shall not suffer or permit any Material
Subsidiary to, merge, consolidate with or into, or convey, transfer, lease
or otherwise dispose of (whether in one transaction or in a series of
transactions all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except any Material
Subsidiary (other than a Borrower) may merge with (a) any Borrower,
provided that such Borrower shall be the continuing or surviving
corporation, (b) any other Material Subsidiary, and (c) any other
Subsidiary, provided that (i) such Material Subsidiary shall be the
continuing or surviving corporation, and (ii) no Default or Event of
Default shall exist hereunder, both before and after giving effect to such
Merger.
8.4 LOANS AND INVESTMENTS. IMTC shall not purchase or
acquire, or suffer or permit any Material Subsidiary to purchase or
acquire, or make any commitment therefor, any Capital Stock, equity
interest, or any obligations or other securities of, or any interest in,
any Person, or make or commit to make any advance, loan, extension of
credit or capital contribution to or any other investment in, any Person
including any Affiliate of IMTC (together, "INVESTMENTS"), except:
(a) IMTC and its Material Subsidiaries may purchase or otherwise acquire
and own (i) marketable, direct obligations of the United States of America
and its agencies maturing within three hundred sixty-five (365) days of the
date of purchase, (ii) commercial paper issued by corporations, each of
which shall (A) have a consolidated net worth of at least $250,000,000, and
(B) conduct substantially all of its business in the United States of
America, which commercial paper will mature within one hundred eighty (180)
days from the date of the original issue thereof and is rated "P-1" or
better by Xxxxx'x Investors Service, Inc., or "A-1" or better by Standard &
Poor's Corporation, (iii) certificates of deposit maturing within three
hundred sixty-five (365) days of the date of purchase and issued by a
United States national or state bank having deposits totaling more than
$250,000,000, and whose short-term debt is rated "P-1" or better by Xxxxx'x
Investors Service, Inc. or "A-1" or better by Standard & Poor's
Corporation, and (iv) up to $100,000 per institution and up to $1,000,000
in the aggregate in (A) short-term obligations issued by any local
commercial bank or trust company located in those areas where IMTC or such
Subsidiary conducts its business, whose deposits are insured by the Federal
Deposit Insurance Corporation, or (B) commercial bank-insured money market
funds, or any combination of investments described in clauses (A) and (B);
(b) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale or lease of goods or services in the
ordinary course of business; (c) (i) extensions of credit by IMTC or its
Material Subsidiaries to another of its Subsidiaries, (x) in accordance
with SECTION 8.6 hereof or (y) not exceeding the aggregate amount of
$250,000 in any fiscal year; (d) investments in connection with a Permitted
Acquisition; and (e) investments in Digene Diagnostics, Inc., Innogenetics,
N.V. and AtheroGenics, Inc. in existence as of the Agreement Date and
described on SCHEDULE 8.4.
8.5 LIMITATION ON INDEBTEDNESS. IMTC shall not, and shall
not suffer or permit any Material Subsidiary to, create, incur, assume,
suffer to exist, or otherwise become or remain directly or indirectly
liable with respect to, any Indebtedness, except:
(a) Indebtedness incurred pursuant to this Agreement and
the other Loan Documents;
(b) Indebtedness consisting of Contingent Obligations
permitted pursuant to SECTION 8.9;
(c) all Indebtedness existing on the Agreement Date and
set forth in SCHEDULE 8.5;
(d) Indebtedness secured by Liens permitted by SECTION
8.1(I) AND (J).
(e) Indebtedness incurred in connection with Capital
Leases entered into by IMTC or any Subsidiary to finance the acquisition of
equipment (and in compliance with SECTION 8.18);
(f) Trade or accounts payable and/or similar
obligations, and accrued expenses, incurred in the ordinary course of
business, other than for borrowed money; and
(g) Other Indebtedness in an aggregate amount not to
exceed $1,000,000 at any time outstanding.
8.6 TRANSACTIONS WITH AFFILIATES. IMTC shall not, and shall
not suffer or permit any Subsidiary to, enter into any transaction with any
Affiliate of IMTC, except upon fair and reasonable terms fully disclosed to
Agent and no less favorable to IMTC or such Subsidiary than it would obtain
in a comparable arms length transaction with a Person not an Affiliate of
IMTC.
8.7 USE OF PROCEEDS. The Borrowers shall not use any portion
of the Loan proceeds or any Letter of Credit, directly or indirectly,
(i) to purchase or carry Margin Stock, (ii) to repay or otherwise refinance
indebtedness of any Borrower or others incurred to purchase or carry Margin
Stock, (iii) to extend credit for the purpose of purchasing or carrying any
Margin Stock, or (iv) to acquire any security in any transaction that is
subject to Section 13 or 14 of the Exchange Act.
8.8 CHANGE IN ACCOUNTS. During such time that an Event of
Default exists, no Borrower will permit or agree to any extension,
compromise or settlement or make any change or modification of any kind or
nature with respect to any of its Accounts, including any of the terms
relating thereto.
8.9 CONTINGENT OBLIGATIONS. IMTC shall not, and shall not
suffer or permit any Material Subsidiary to, create, incur, assume or
suffer to exist any Contingent Obligations except:
(a) endorsements for collection or deposit in the
ordinary course of business;
(b) Contingent Obligations of IMTC and its Material
Subsidiaries existing as of the Agreement Date and listed in SCHEDULE 8.9;
(c) Guaranty Obligations entered into by IMTC or any
Material Subsidiary after the Agreement Date with respect to obligations of
an Affiliate of IMTC and not exceeding $1,000,000 in the aggregate at any
time outstanding.
8.10 RESTRICTED PAYMENTS. IMTC shall not, and shall not
suffer or permit any Material Subsidiary to, declare or make any dividend
payment or other distribution of assets, properties, cash, rights,
obligations or securities on account of any shares of any class of its
Capital Stock, or purchase, redeem or otherwise acquire for value any
shares of its Capital Stock or any warrants, rights or options to acquire
such shares, now or hereafter outstanding; except that as applicable:
(a) IMTC and any Material Subsidiary may declare and
make dividend payments or other distributions payable solely in its common
stock; and
(b) IMTC and any Material Subsidiary may purchase,
redeem or otherwise acquire shares of its common stock or warrants or
options to acquire any such shares with the proceeds received from the
substantially concurrent issue of new shares of its common stock; and
(c) Any Material Subsidiary may declare and pay
dividends to IMTC or any other Material Subsidiary.
8.11 ERISA. The Borrowers shall not, and shall not suffer or
permit any of its ERISA Affiliates to: (a) engage in a prohibited
transaction or violation of the fiduciary responsibility rules with respect
to any Plan which has resulted or could reasonably expected to result in
liability of the Borrower in an aggregate amount in excess of $250,000; or
(b) engage in a transaction that could be subject to Section 4069 or
4212(c) of ERISA.
8.12 CHANGE IN BUSINESS. The Borrowers shall not engage in
any material line of business substantially different from those lines of
business carried on by the Borrowers on the date hereof.
8.13 ACCOUNTING CHANGES. IMTC shall not, and shall not suffer
or permit any Material Subsidiary to, make any significant change in
accounting treatment or reporting practices, except as required by GAAP or
its foreign equivalent, or change the fiscal year of IMTC or of any
Material Subsidiary.
8.14 INTELLECTUAL PROPERTY. Each Borrower agrees that it
will, with respect to the Intellectual Property of such Borrower which is
necessary for or of importance to the conduct of the business of such
Borrower, unless such Intellectual Property has become obsolete:
(a) Not, do any act, or omit to do any act, whereby any
of its respective Patent Property may lapse or become abandoned or
dedicated to the public or unenforceable;
(b) Not, and not permit any licensee of it to:
i) fail to continue to use any of the trademark
property in order to maintain all of such trademark
property in full force free from any claim of abandonment
for non-use;
ii) fail to maintain as in the past in all material
respects the quality of products and services offered
under all of the trademark property;
iii) fail to employ all of the trademark property
registered with any Federal or state or foreign authority
with an appropriate notice of such registration;
iv) adopt or use any other trademark which is
confusingly similar or a colorable imitation of any of
the trademark property;
v) use any of the trademark property registered
with any Federal or state or foreign authority except for
the uses for which registration or application for
registration of all of such trademark property has been
made; or
vi) do or permit any act or knowingly omit to do
any act whereby any of the trademark property may lapse
or become invalid or unenforceable;
(c) Not, do or permit any act or knowingly omit to do
any act whereby any of the copyright property may lapse or become invalid
or unenforceable or placed in the public domain except upon expiration of
the end of an unrenewable term of a registration thereof;
(d) That it shall notify the Agent immediately if it
knows, or has reason to know, that any application or registration relating
to any material Intellectual Property is invalid or unenforceable, or of
any adverse determination or development (including the institution of, or
any such determination or development in, any proceeding in the United
States Patent and Trademark Office, the United States Copyright Office or
any foreign counterpart thereof or any court) regarding its or any of its
Subsidiaries' ownership of any material Intellectual Property, its right to
register the same or to keep and maintain and enforce the same;
(e) That it shall take all necessary steps, including in
any proceeding before the United States Patent and Trademark Office, the
United States Copyright Office or, to the extent necessary for the conduct
of such Borrower's business, any similar office or agency in any other
country or any political subdivision thereof, to maintain and pursue any
application (and to obtain the relevant registration) filed with respect
to, and to maintain any registration of, the Intellectual Property,
including the filing of applications for renewal, affidavits of use,
affidavits of incontestability and opposition, interference and
cancellation proceedings and the payment of fees and taxes (except to the
extent that dedication, abandonment or invalidation is permitted under the
foregoing CLAUSES (A), (B) and (C)); and
(f) That it shall, within ten (10) days after the
Agreement Date, execute and deliver to the Agent such documents as are
required to register or perfect the Agent's security interest in the Patent
Property licensed to Xxxxxx pursuant to the License Agreement in the
jurisdictions set forth therein.
8.15 NEGATIVE PLEDGES, ETC. IMTC will not, and not permit any
of its Material Subsidiaries to, enter into any agreement (excluding this
Agreement and any Loan Document) prohibiting (a) the creation or assumption
of any Lien upon its properties, revenues or assets, whether now owned or
hereafter acquired, or (b) the ability of the Borrowers to amend or
otherwise modify this Agreement or any other Loan Document.
8.16 FUNDED DEBT/EBITDA RATIO. IMTC shall not permit as of
December 31, 1996, and the last day of each fiscal quarter thereafter, the
ratio of (i) Funded Debt as of such date to (ii) EBITDA for the immediately
preceding twelve (12) month period to exceed 1.50 to 1.0.
8.17 CONSOLIDATED TANGIBLE NET WORTH. IMTC shall not permit
as of December 31, 1996, and the last day of each fiscal quarter
thereafter, Consolidated Tangible Net Worth to be less than $50,000,000;
PROVIDED, HOWEVER, that (i) such amount shall be increased at the end of
each fiscal year (commencing with the fiscal year ending December 31, 1997)
by an amount equal to $2,500,000, and (ii) in no event shall IMTC's
investment in Innogenetics N.V. be deemed an intangible asset for purposes
of the calculation of "Consolidated Tangible Net Worth".
8.18 CAPITAL EXPENDITURES. IMTC and its Subsidiaries shall
not make or incur during the fiscal year ending on December 31, 1997, and
during each fiscal year thereafter, in the aggregate any Capital
Expenditures in excess of $7,000,000; PROVIDED, HOWEVER, during fiscal year
1998 only, IMTC and its Subsidiaries may make or incur Capital Expenditures
in an aggregate amount equal to (a) $7,000,000 plus (b) (i) $7,000,000
MINUS (ii) the aggregate amount of Capital Expenditures made or incurred by
IMTC and its Subsidiaries during fiscal year 1997.
ARTICLE IX.
EVENTS OF DEFAULT
9.1 EVENT OF DEFAULT. Any of the following shall constitute
an "EVENT OF DEFAULT":
(a) The Borrowers fail to pay, (i) when and as required
to be paid herein, any amount of principal of any Loan or of any L/C
Obligation, or (ii) within three (3) days after the same becomes due,
payment of any interest, fee or any other amount payable hereunder or under
any other Loan Document; or
(b) Any representation or warranty by IMTC or any
Subsidiary made or deemed made herein, in any other Loan Document or which
is contained in any certificate, document or financial or other statement
by IMTC, any Subsidiary, or any Responsible Officer, furnished at any time
under this Agreement, or in or under any other Loan Document is incorrect
in any material respect on or as of the date made or deemed made; or
(c) IMTC or any Subsidiary fails to perform or observe
any term, covenant or agreement contained in (i) SECTION 8.4 and such
default shall continue unremedied for a period of seven (7) days, or (ii)
SECTIONS 7.1, 7.2, 7.3, 7.4, 7.12 or 7.13(C) or in ARTICLE VIII (other than
SECTION 8.4); or
(d) IMTC or any Subsidiary party thereto fails to
perform or observe any other term or covenant contained in this Agreement
or any other Loan Document and such default shall continue unremedied for
the earlier of (i) the applicable cure period in such Loan Document, if
any, or (ii) a period of thirty (30) days after the earlier of (A) the date
upon which a Responsible Officer knew or reasonably should have known of
such failure or (B) the date upon which written notice thereof is given to
the Borrower Representative by the Agent or any Lender; or
(e) (i) Any Borrower (A) fails to make any payment in
respect of any Indebtedness or Contingent Obligation having an aggregate
principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than $500,000 when due (whether by scheduled
maturity, required prepayment, acceleration, demand, or otherwise) and such
failure continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure; or
(B) fails to perform or observe any other condition or covenant, or any
other event shall occur or condition exist, under any agreement or
instrument relating to any such Indebtedness or Contingent Obligation, and
such failure continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure if the
effect of such failure, event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or beneficiaries of
such Indebtedness (or a trustee or agent on behalf of such holder or
holders or beneficiary or beneficiaries) to cause such Indebtedness to be
declared to be due and payable prior to its stated maturity, or such
Contingent Obligation to become payable or cash collateral in respect
thereof to be demanded;
(f) Any Borrower or any Material Subsidiary (i) ceases
or fails to be Solvent, or generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases to conduct its business in the ordinary course; (iii) commences any
Insolvency Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or
(g) (i) Any involuntary Insolvency Proceeding is
commenced or filed against any Borrower or any Material Subsidiary, or any
writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of Borrower's or any Material
Subsidiary's properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within 60
days after commencement, filing or levy; (ii) any Borrower or any Material
Subsidiary admits the material allegations of a petition against it in any
Insolvency Proceeding, or an order for relief (or similar order under non-
U.S. law) is ordered in any Insolvency Proceeding; or (iii) any Borrower or
any Material Subsidiary acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession (or
agent therefor), or other similar Person for itself or a substantial
portion of its property or business; or
(h) (i) An ERISA Event shall occur with respect to a
Pension Plan or Multiemployer Plan which has resulted or could reasonably
be expected to result in liability of the Borrower under Title IV of ERISA
to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of $500,000; or (ii) the aggregate amount of Unfunded Pension
Liability among all Pension Plans at any time exceeds $500,000; or
(iii) the Borrower or any ERISA Affiliate shall fail to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of $500,000; or
(i) One or more non-interlocutory judgments, non-
interlocutory orders, decrees or arbitration awards is entered against any
Borrower or any Material Subsidiary in the aggregate a liability (to the
extent not covered by independent third-party insurance as to which the
insurer does not dispute coverage) as to any single or related series of
transactions, incidents or conditions, of $500,000 or more, and the same
shall remain unvacated and unstayed pending appeal for a period of 30 days
after the entry thereof; or
(j) Any non-monetary judgment, order or decree is
entered against any Borrower or any Material Subsidiary which does or would
reasonably be expected to have a Material Adverse Effect, and there shall
be any period of 10 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise, shall
not be in effect; or
(k) There occurs any Change of Control; or
(l) Any event described in clause (a) or clause (b) of
the definition of "Material Adverse Effect" set forth herein shall occur;
or
(m) Any Material Subsidiary fails in any material
respect to perform or observe any term, covenant or agreement in any Loan
Document to which it is a party; or any Guaranty executed by a Material
Subsidiary is for any reason partially (including with respect to future
advances) or wholly revoked or invalidated, or otherwise ceases to be in
full force and effect, or any Material Subsidiary contests in any manner
the validity or enforceability thereof or denies that it has any further
liability or obligation thereunder.
(n) i) any provision of any Collateral Document shall
for any reason cease to be valid and binding on or enforceable against the
Borrower or any Material Subsidiary party thereto or the Borrower or any
Material Subsidiary shall so state in writing or bring an action to limit
its obligations or liabilities thereunder; or
ii) any Collateral Document shall for any reason
(other than pursuant to the terms thereof) cease to create a
valid security interest in the Collateral purported to be
covered thereby or such security interest shall for any reason
cease to be a perfected and first priority security interest
subject only to Permitted Liens.
9.2 REMEDIES. If any Event of Default occurs, the Agent
shall, at the request of, or may, with the consent of, the Majority
Lenders,
(a) declare the commitment of each Lender to make Loans
and any obligation of the Issuing Bank to Issue Letters of Credit to be
terminated, whereupon such commitments and obligation shall be terminated;
(b) declare an amount equal to the maximum aggregate
amount that is or at any time thereafter may become available for drawing
under any outstanding Letters of Credit (whether or not any beneficiary
shall have presented, or shall be entitled at such time to present, the
drafts or other documents required to draw under such Letters of Credit) to
be immediately due and payable, and declare the unpaid principal amount of
all outstanding Loans, all interest accrued and unpaid thereon, and all
other amounts owing or payable hereunder or under any other Loan Document
to be immediately due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by the
Borrower; and
(c) exercise on behalf of itself, the Issuing Bank or
the Lenders all rights and remedies available to it, the Collateral Agents,
the Issuing Bank or the Lenders under the Loan Documents or applicable law;
PROVIDED, HOWEVER, that upon the occurrence of any event specified in
SUBSECTION (F) or (G) of SECTION 8.1, with respect to any Borrower, the
obligation of each Lender to make Loans and any obligation of the Issuing
Bank to Issue Letters of Credit shall automatically terminate and the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable without
further act of the Agent, the Issuing Bank or any Lender.
9.3 RIGHTS NOT EXCLUSIVE. The rights provided for in this
Agreement and the other Loan Documents are cumulative and are not exclusive
of any other rights, powers, privileges or remedies provided by law or in
equity, or under any other instrument, document or agreement now existing
or hereafter arising.
ARTICLE X.
THE AGENT
10.1 APPOINTMENT AND AUTHORIZATION; "AGENT" AND "ISSUING
BANK".
(a) Each Lender, each Issuing Bank and each Collateral
Agent hereby irrevocably (subject to SECTION 10.9) appoints, designates and
authorizes the Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers
and perform such duties as are expressly delegated to it by the terms of
this Agreement or any other Loan Document, together with such powers as are
reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere in this Agreement or in any other Loan
Document, the Agent shall not have any duties or responsibilities, except
those expressly set forth herein, nor shall the Agent have or be deemed to
have any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be
read into this Agreement or any other Loan Document or otherwise exist
against the Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement with reference to
the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) The Issuing Bank shall act on behalf of the Lenders
with respect to any Letters of Credit Issued by it and the documents
associated therewith until such time and except for so long as the Agent
may agree at the request of the Majority Lenders to act for such Issuing
Bank with respect thereto; PROVIDED, HOWEVER, that the Issuing Bank shall
have all of the benefits and immunities (i) provided to the Agent in this
ARTICLE X with respect to any acts taken or omissions suffered by the
Issuing Bank in connection with Letters of Credit Issued by it or proposed
to be Issued by it and the application and agreements for letters of credit
pertaining to the Letters of Credit as fully as if the term "Agent", as
used in this ARTICLE X, included the Issuing Bank with respect to such acts
or omissions, and (ii) as additionally provided in this Agreement with
respect to the Issuing Bank.
10.2 DELEGATION OF DUTIES. The Agent may execute any of its
duties under this Agreement or any other Loan Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Agent shall
not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
10.3 LIABILITY OF AGENT. None of the Agent-Related Persons
shall (i) be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document
or the transactions contemplated hereby (except for its own gross
negligence or willful misconduct as determined by a final non-appealable
order of a court of competent jurisdiction), or (ii) be responsible in any
manner to any of the Lenders for any recital, statement, representation or
warranty made by any Borrower or any Subsidiary or Affiliate of any
Borrower, or any officer thereof, contained in this Agreement or in any
other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or
in connection with, this Agreement or any other Loan Document, or for the
value of or title to any Collateral, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
Loan Document, or for any failure of any Borrower or any other party to any
Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Borrower or
any Guarantor.
10.4 RELIANCE BY AGENT.
(a) The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel
(including counsel to the Borrowers), independent accountants and other
experts selected by the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or concurrence of
the Majority Lenders as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Lenders against any
and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or
consent of the Majority Lenders and such request and any action taken or
failure to act pursuant thereto shall be binding upon all of the Lenders.
(b) For purposes of determining compliance with the
conditions specified in SECTION 5.1, each Lender that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to
be satisfied with, each document or other matter either sent by the Agent
to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to the Lender.
10.5 NOTICE OF DEFAULT. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and
fees required to be paid to the Agent for the account of the Lenders,
unless the Agent shall have received written notice from a Lender or the
Borrower Representative referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "notice of
default". The Agent will notify the Lenders of its receipt of any such
notice, and will notify the Borrower Representative if such notice is given
by a Lender. The Agent shall take such action with respect to such Default
or Event of Default as may be requested by the Majority Lenders in
accordance with ARTICLE XI; PROVIDED, HOWEVER, that unless and until the
Agent has received any such request, the Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable or
in the best interest of the Lenders.
10.6 CREDIT DECISION. Each Lender acknowledges that none of
the Agent-Related Persons has made any representation or warranty to it,
and that no act by the Agent hereinafter taken, including any review of the
affairs of the Borrowers shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Lender. Each Lender
represents to the Agent that it has, independently and without reliance
upon any Agent-Related Person and based on such documents and information
as it has deemed appropriate, made its own appraisal of and investigation
into the business, prospects, operations, property, financial and other
condition and creditworthiness of the Borrowers, the value of and title to
any Collateral, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Borrowers hereunder. Each
Lender also represents that it will, independently and without reliance
upon any Agent-Related Person and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under
this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrowers. Except for notices, reports and other
documents expressly herein required to be furnished to the Lenders by the
Agent, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Borrowers which may come into the possession of any
of the Agent-Related Persons.
10.7 INDEMNIFICATION OF AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall
indemnify upon demand the Agent-Related Persons (to the extent not
reimbursed by or on behalf of the Borrowers and without limiting the
obligation of the Borrowers to do so), pro rata, from and against any and
all Indemnified Obligations; PROVIDED, HOWEVER, that no Lender shall be
liable for the payment to the Agent-Related Persons of any portion of such
Indemnified Obligations resulting solely from such Person's gross
negligence or willful misconduct as determined by a final non-appealable
order of a court of competent jurisdiction. Without limitation of the
foregoing, each Lender shall reimburse the Agent upon demand for its
ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice
in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to
the extent that the Agent is not reimbursed for such expenses by or on
behalf of the Borrowers. The undertaking in this Section shall survive the
payment of all Obligations hereunder and the resignation or replacement of
the Agent.
10.8 AGENT IN INDIVIDUAL CAPACITY. BAFSB and its Affiliates
may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind
of banking, trust, financial advisory, underwriting or other business with
IMTC and its Subsidiaries and Affiliates as though BAFSB were not the Agent
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, BAFSB or its Affiliates may
receive information regarding IMTC or its Affiliates (including information
that may be subject to confidentiality obligations in favor of IMTC or such
Subsidiary) and acknowledge that the Agent shall be under no obligation to
provide such information to them.
10.9 SUCCESSOR AGENT; SUCCESSOR ISSUING BANK.
(a) The Agent may and at the request of the Majority
Lenders shall, resign as Agent upon 30 days' notice to the Lenders. If the
Agent resigns under this Agreement, the Majority Lenders shall appoint from
among the Lenders a successor agent for the Lenders which successor agent
shall be approved by the Borrower Representative. If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the
Agent may appoint, after consulting with the Lenders and the Borrower
Representative, a successor agent from among the Lenders. Upon the
acceptance of its appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the retiring
Agent and the term "Agent" shall mean such successor agent and the retiring
Agent's appointment, powers and duties as Agent shall be terminated. After
any retiring Agent's resignation hereunder as Agent, the provisions of this
ARTICLE X and SECTIONS 11.4 and 11.5 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor agent has accepted appointment as Agent by the
date which is 30 days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become
effective and the Lenders shall perform all of the duties of the Agent
hereunder until such time, if any, as the Majority Lenders appoint a
successor agent as provided for above.
(b) The Issuing Bank may and at the request of the
Majority Lenders shall, resign as Issuing Bank upon thirty (30) days'
notice to the Lenders and the Borrower Representative. If the Issuing Bank
resigns under this Agreement, the Majority Lenders shall appoint from among
the Lenders a successor issuing bank for the Lenders. If no successor
issuing bank is appointed prior to the effective date of the resignation of
the Issuing Bank, the Issuing Bank may appoint, after consulting with the
Lenders and the Borrower Representative, a successor issuing bank from
among the Lenders. Upon the acceptance of its appointment as successor
issuing bank hereunder, such successor issuing bank shall succeed to all
the rights, powers and duties of the retiring Issuing Bank and the term
"Issuing Bank" shall mean such successor issuing bank and the retiring
Issuing Bank's appointment, powers and duties as Issuing Bank shall be
terminated. After any retiring Issuing Bank's resignation hereunder as
Issuing Bank, the provisions of Article III and SECTIONS 10.7, 11.4 and
11.5 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Issuing Bank under this Agreement. If no
successor issuing bank has accepted appointment as Issuing Bank by the date
which is thirty (30) days following a retiring Issuing Bank's notice of
resignation, the retiring Issuing Bank's resignation shall nevertheless
thereupon become effective and the Lenders shall perform all of the duties
of the Issuing Bank hereunder until such time, if any, as the Majority
Lenders appoint a successor issuing bank as provided for above.
10.10 WITHHOLDING TAX.
(a) If any Lender is a "foreign corporation, partnership
or trust" within the meaning of the Code and such Lender claims exemption
from, or a reduction of, U.S. withholding tax under Sections 1441 or 1442
of the Code, such Lender agrees with and in favor of the Agent, to deliver
to the Agent and the Borrower Representative:
i) if such Lender claims an exemption from, or a
reduction of, withholding tax under a United States tax
treaty, two properly completed and executed copies of IRS Form
1001 before the payment of any interest in the first calendar
year and before the payment of any interest in each third
succeeding calendar year during which interest may be paid
under this Agreement;
ii) if such Lender claims that interest paid under
this Agreement is exempt from United States withholding tax
because it is effectively connected with a United States trade
or business of such Lender, two properly completed and
executed copies of IRS Form 4224 before the payment of any
interest is due in the first taxable year of such Lender and
in each succeeding taxable year of such Lender during which
interest may be paid under this Agreement; and
iii) such other form or forms as may be required
under the Code or other laws of the United States as a
condition to exemption from, or reduction of, United States
withholding tax.
Such Lender agrees to promptly notify the Agent of any
change in circumstances which would modify or render invalid any claimed
exemption or reduction.
(b) If any Lender claims exemption from, or reduction
of, withholding tax under a United States tax treaty by providing IRS Form
1001 and such Lender sells, assigns, grants a participation in, or
otherwise transfers all or part of the Obligations to such Lender, such
Lender agrees to notify the Agent and the Borrower Representative of the
percentage amount in which it is no longer the beneficial owner of
Obligations to such Lender. To the extent of such percentage amount, the
Agent will treat such Lender's IRS Form 1001 as no longer valid.
(c) If any Lender claiming exemption from United States
withholding tax by filing IRS Form 4224 with the Agent sells, assigns,
grants a participation in, or otherwise transfers all or part of the
Obligations to such Lender, such Lender agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed
by Sections 1441 and 1442 of the Code.
(d) If any Lender is entitled to a reduction in the
applicable withholding tax, the Agent may withhold from any interest
payment to such Lender an amount equivalent to the applicable withholding
tax after taking into account such reduction. However, if the forms or
other documentation required by Subsection (a) of this Section are not
delivered to the Agent, then the Agent may withhold from any interest
payment to such Lender not providing such forms or other documentation an
amount equivalent to the applicable withholding tax imposed by Sections
1441 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of
the United States or other jurisdiction 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 was not properly
executed, or because such Lender failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of,
withholding tax 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 or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to
the Agent under this Section, together with all costs and expenses
(including Attorney Costs). The obligation of the Lenders under this
Subsection shall survive the payment of all Obligations and the resignation
or replacement of the Agent.
10.11 COLLATERAL MATTERS.
(a) The Agent and the Collateral Agents are authorized
on behalf of the Issuing Bank and all the Lenders, without the necessity of
any notice to or further consent from the Issuing Bank or the Lenders, from
time to time to take any action with respect to any Collateral or the
Collateral Documents which may be necessary to perfect and maintain
perfected the security interest in and Liens upon the Collateral granted
pursuant to the Collateral Documents.
(b) The Lenders and the Issuing Bank irrevocably
authorize the Agent and the Collateral Agents, at their respective option
and in their respective discretion, to release any Lien granted to or held
by the Agent or such Collateral Agent upon any Collateral (i) upon
termination of the Commitment and payment in full of all Loans and all
other Obligations known to the Agent and payable under this Agreement or
any other Loan Document; (ii) constituting property sold or to be sold or
disposed of as part of or in connection with any disposition permitted
hereunder; (iii) constituting property in which no Borrower owned an
interest at the time the Lien was granted or at any time thereafter;
(iv) constituting property leased to a Borrower under a lease which has
expired or been terminated in a transaction permitted under this Agreement
or is about to expire and which has not been, and is not intended by such
Borrower to be, renewed or extended; (v) consisting of an instrument
evidencing Indebtedness or other debt instrument, if the indebtedness
evidenced thereby has been paid in full; or (vi) if approved, authorized or
ratified in writing by the Majority Lenders or all the Lenders, as the case
may be, as provided in SECTION 11.1(F). Upon request by the Agent at any
time, the Lenders will confirm in writing the Agent's or the Collateral
Agent's authority to release particular types or items of Collateral
pursuant to this SUBSECTION 10.11(B), provided that the absence of any such
confirmation for whatever reason shall not affect the Agent's or the
Collateral Agent's rights under this SECTION 10.11.
(c) Each reference herein to any right granted to,
benefit conferred upon or power exercisable by the "Agent" shall be a
reference to the Agent for itself and for the ratable benefit of the
Issuing Bank and the Lenders, and each action taken or right exercised
hereunder shall be deemed to have been so taken or exercised by the Agent
for itself and for the ratable benefit of the Issuing Bank and the Lenders.
ARTICLE XI.
MISCELLANEOUS
11.1 AMENDMENTS AND WAIVERS. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent with
respect to any departure by any Borrower or any applicable Subsidiary
therefrom, shall be effective unless the same shall be in writing and
signed by the Majority Lenders (or by the Agent at the written request of
the Majority Lenders) and the Borrower Representative and acknowledged by
the Agent, and then any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given;
PROVIDED, HOWEVER, that no such waiver, amendment, or consent shall, unless
in writing and signed by all the Lenders and the Borrower Representative
and acknowledged by the Agent, do any of the following:
(a) increase or extend the Commitment of any Lender;
(b) postpone or delay any date fixed by this Agreement
or any other Loan Document for any payment of principal, interest, fees or
other amounts due to the Lenders (or any of them) hereunder or under any
other Loan Document;
(c) reduce the principal of, or the rate of interest
specified herein on any Loan, or any fees or other amounts payable
hereunder or under any other Loan Document;
(d) increase the amount of the Commitment or change the
Commitment Percentages or of the aggregate unpaid principal amount of the
Loans which is required for the Lenders or any of them to take any action
hereunder; or
(e) amend the definition of "Majority Lenders", this
Section or any provision herein providing for consent or other action by
all Lenders; or
(f) discharge any Guarantor, or release any portion of
the Collateral except as otherwise may be provided herein or in the
Collateral Document or except where the consent of the Majority Lenders
only is specifically provided for;
and, PROVIDED FURTHER, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the Issuing Bank in addition to the
Majority Lenders or all the Lenders, as the case may be, affect the rights
or duties of the Issuing Bank under this Agreement or any L/C-Related
Document relating to any Letter of Credit Issued or to be Issued by it,
(ii) no amendment, waiver or consent shall, unless in writing and signed by
the Agent in addition to the Majority Lenders or all the Lenders, as the
case may be, affect the rights or duties of the Agent under this Agreement
or any other Loan Document, and (iii) the Fee Letters may be amended, or
rights or privileges thereunder waived, in a writing executed by the
parties thereto.
11.2 NOTICES.
(a) All notices, requests, consents, approvals, waivers
and other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission) and mailed, faxed
or delivered, to the address or facsimile number specified for notices on
SCHEDULE 3; or, as directed to the Borrower Representative or the Agent, to
such other address as shall be designated by such party in a written notice
to the other parties, and as directed to any other party, at such other
address as shall be designated by such party in a written notice to the
Borrower Representative and the Agent.
(b) All such notices, requests and communications shall,
when transmitted by overnight delivery, or faxed, be effective when
delivered for overnight (next-day) delivery, or transmitted in legible form
by facsimile machine, respectively, or if mailed, upon the third Business
Day after the date deposited into the U.S. mail (certified mail or
registered mail, return receipt requested), or if delivered, upon delivery;
except that notices pursuant to Article II, IV or XI to the Agent shall not
be effective until actually received by the Agent, and notices pursuant to
Article III to the Issuing Bank shall not be effective until actually
received by the Issuing Bank at the address specified for the "Issuing
Bank" on the applicable signature page hereof.
(c) Any agreement of the Agent and the Lenders herein to
receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrowers. The Agent and the Lenders
shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by the Borrowers to give such notice and the Agent and
the Lenders shall not have any liability to the Borrower or other Person on
account of any action taken or not taken by the Agent or the Lenders in
reliance upon such telephonic or facsimile notice. The obligation of the
Borrowers to repay the Loans and L/C Obligations shall not be affected in
any way or to any extent by any failure by the Agent and the Lenders to
receive written confirmation of any telephonic or facsimile notice.
11.3 NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Agent, the Issuing Bank or
any Lender, any right, remedy, power or privilege hereunder, shall operate
as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege.
11.4 COSTS AND EXPENSES. The Borrowers shall:
(a) whether or not the transactions contemplated hereby
are consummated, pay or reimburse the Agent, the Issuing Bank, and the
Lenders within five Business Days after demand for all reasonable costs and
expenses incurred by the Agent, the Issuing Bank, and the Lenders in
connection with the development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or modification to (in
each case, whether or not consummated), this Agreement, any Loan Document
and any other documents prepared in connection herewith or therewith, and
the consummation of the transactions contemplated hereby and thereby,
including reasonable Attorney Costs incurred by the Agent, the Issuing
Bank, and the Lenders with respect thereto; and
(b) pay or reimburse the Agent, the Issuing Bank and
each Lender within five Business Days after demand for all reasonable costs
and expenses (including Attorney Costs) incurred by them in connection with
the (i) custody, preservation, use or operation of, or the sale of,
collection from, or other realization upon, any of the Collateral, and (ii)
exercise, enforcement, attempted enforcement, or preservation of any rights
or remedies under this Agreement or any other Loan Document during the
existence of an Event of Default or after acceleration of the Loans
(including in connection with any "workout" or restructuring regarding the
Loans, and including in any Insolvency Proceeding or appellate proceeding);
and
(c) pay or reimburse the Agent within five Business Days
after demand for all reasonable appraisal (including the allocated cost of
internal appraisal services), audit, environmental inspection and review
(including the allocated cost of such internal services), search and filing
costs, fees and expenses, incurred or sustained by the Agent in connection
with the matters referred to under SUBSECTIONS (A) AND (B) of this SECTION.
11.5 BORROWER INDEMNIFICATION.
(a) Whether or not the transactions contemplated hereby
are consummated, the Borrowers shall indemnify, defend and hold the Agent-
Related Persons, and each Lender and each of its respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"INDEMNIFIED PERSON") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind
or nature whatsoever which may at any time (including at any time following
repayment of the Loans and termination of all Foreign Exchange Agreements,
the termination of the Letters of Credit and the termination, resignation
or replacement of the Agent or replacement of any Lender) be imposed on,
incurred by or asserted against any such Person in any way relating to or
arising out of this Agreement or any document contemplated by or referred
to herein, or the transactions contemplated hereby, or any action taken or
omitted by any such Person under or in connection with any of the
foregoing, including with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate proceeding)
related to or arising out of this Agreement or the Foreign Exchange
Agreements or the Loans or Letters of Credit or the use of the proceeds
thereof, whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "INDEMNIFIED OBLIGATIONS"); PROVIDED, that the
Borrowers shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Obligations resulting solely from the gross
negligence or willful misconduct of such Indemnified Person as determined
by a final non-appealable order of a court of competent jurisdiction. The
agreements in this Section shall survive payment of all other Obligations.
(b) i) The Borrowers shall indemnify, defend and hold
harmless each Indemnified Person, from and against any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses or disbursements
(including Attorney Costs and the allocated cost of internal
environmental audit or review services), which may be incurred
by or asserted against such Indemnified Person in connection
with or arising out of any pending or threatened
investigation, litigation or proceeding, or any action taken
by any Person, with respect to any Environmental Claim. No
action taken by legal counsel chosen by the Agent or any
Lender in defending against any such investigation, litigation
or proceeding or requested remedial, removal or response
action shall vitiate or any way impair the Borrowers'
obligation and duty hereunder to indemnify and hold harmless
the Agent and each Lender.
ii) In no event shall any site visit, observation,
or testing by the Agent or any Lender (or any contractee of
the Agent or any Lender) be deemed a representation or
warranty that Hazardous Materials are or are not present in,
on, or under, the site, or that there has been or shall be
compliance with any Environmental Law. Neither the Borrowers
nor any other Person is entitled to rely on any site visit,
observation, or testing by the Agent or any Lender. Neither
the Agent nor any Lender owes any duty of care to protect the
Borrowers or any other Person against, or to inform the
Borrowers or any other party of, any Hazardous Materials or
any other adverse condition affecting any site or property.
Neither the Agent nor any Lender shall be obligated to
disclose to the Borrowers or any other Person any report or
findings made as a result of, or in connection with, any site
visit, observation, or testing by the Agent or any Lender.
(c) SURVIVAL; DEFENSE. The obligations in this Section
shall survive payment of all other Obligations. At the election of any
Indemnified Person, the Borrowers shall defend such Indemnified Person
using legal counsel satisfactory to such Indemnified Person in such
Person's sole discretion, at the sole cost and expense of the Borrowers.
All amounts owing under this Section shall be paid within 30 days after
demand.
11.6 MARSHALLING; PAYMENTS SET ASIDE. Neither the Agent nor
the Lenders shall be under any obligation to xxxxxxxx any assets in favor
of the Borrowers or any other Person or against or in payment of any or all
of the Obligations. To the extent that the Borrowers make a payment to the
Agent or the Lenders, or the Agent or the Lenders exercise their right of
set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Agent or such Lender in its discretion) to be repaid to
a trustee, receiver or any other party, in connection with any Insolvency
Proceeding or otherwise, then (a) to the extent of such recovery the
obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not
been made or such set-off had not occurred, and (b) each Lender severally
agrees to pay to the Agent upon demand its pro rata share of any amount so
recovered from or repaid by the Agent.
11.7 SUCCESSORS AND ASSIGNS. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and assigns, except that the Borrowers may not
assign or transfer any of their rights or obligations under this Agreement
without the prior written consent of the Agent and each Lender.
11.8 ASSIGNMENTS.
(a) Any Lender may, with the written consent of the
Borrower Representative at all times other than during the existence of an
Event of Default, and the Agent and the Issuing Banks, which consent of the
Borrower shall not be unreasonably withheld, at any time assign and
delegate to one or more Eligible Assignees (provided that no written
consent of the Borrower Representative, the Agent or the Issuing Banks
shall be required in connection with any assignment and delegation by a
Lender to an Eligible Assignee that is an Affiliate of such Lender and
organized in the same country as such Lender) (each an "ASSIGNEE") all, or
any ratable part of all, of the Loans, the Revolving Commitment, the L/C
Obligations and the other rights and obligations of such Lender hereunder,
in a minimum amount of $1,000,000; PROVIDED, HOWEVER, that the Borrower and
the Agent may continue to deal solely and directly with such Lender in
connection with the interest so assigned to an Assignee until (i) written
notice of such assignment, together with payment instructions, addresses
and related information with respect to the Assignee, shall have been given
to the Borrower and the Agent by such Lender and the Assignee; (ii) such
Lender and its Assignee shall have delivered to the Borrower and the Agent
an Assignment and Acceptance in the form of EXHIBIT H ("ASSIGNMENT AND
ACCEPTANCE") together with any Note or Notes subject to such assignment and
(iii) the assignor Lender or Assignee has paid to the Agent a processing
fee in the amount of $5,000.
(b) From and after the date that the Agent notifies the
assignor Lender that it has received (and provided its consent with respect
to) an executed Assignment and Acceptance and payment of the above-
referenced processing fee, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the
rights and obligations of a Lender under the Loan Documents, and (ii) the
assignor Lender shall, to the extent that rights and obligations hereunder
and under the other Loan Documents have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be released from
its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of
notice by the Agent that it has received an executed Assignment and
Acceptance and payment of the processing fee, (and provided that it
consents to such assignment in accordance with SUBSECTION 11.8(A)), the
Borrower shall execute and deliver to the Agent, new Notes evidencing such
Assignee's assigned Loans and Commitment and, if the assignor Lender has
retained a portion of its Loans and its Commitment, replacement Notes in
the principal amount of the Loans retained by the assignor Lender (such
Notes to be in exchange for, but not in payment of, the Notes held by such
Lender). Immediately upon each Assignee's making its processing fee
payment under the Assignment and Acceptance, this Agreement shall be deemed
to be amended to the extent, but only to the extent, necessary to reflect
the addition of the Assignee and the resulting adjustment of the Revolving
Commitments arising therefrom. The Commitment Percentage allocated to each
Assignee shall reduce the Commitment Percentage of the assigning Lender PRO
TANTO.
(d) Notwithstanding any other provision in this
Agreement, any Lender may at any time create a security interest in, or
pledge, all or any portion of its rights under and interest in this
Agreement and the Note held by it in favor of any Federal Reserve Lender in
accordance with Regulation A of the FRB or U.S. Treasury Regulation 31 CFR
SECTION 203.14, and such Federal Reserve Lender may enforce such pledge or
security interest in any manner permitted under applicable law.
11.9 SET-OFF. In addition to any rights and remedies of the
Lenders provided by law, if an Event of Default exists or the Loans have
been accelerated, each Lender is authorized at any time and from time to
time, without prior notice to the Borrowers, any such notice being waived
by the Borrowers to the fullest extent permitted by law, to set off and
apply any and all deposits (general or special, time or demand, provisional
or final) at any time held by, and other indebtedness at any time owing by,
such Lender to or for the credit or the account of the Borrower against any
and all Obligations owing to such Lender, now or hereafter existing,
irrespective of whether or not the Agent or such Lender shall have made
demand under this Agreement or any Loan Document and although such
Obligations may be unmatured. Each Lender agrees promptly to notify the
Borrower Representative and the Agent after any such set-off and
application made by such Lender; PROVIDED, HOWEVER, that the failure to
give such notice shall not affect the validity of such set-off and
application. NOTWITHSTANDING THE FOREGOING, NO LENDER SHALL EXERCISE, OR
ATTEMPT TO EXERCISE, ANY RIGHT OF SET-OFF, LENDER'S LIEN, OR THE LIKE,
AGAINST ANY DEPOSIT ACCOUNT OR PROPERTY OF ANY BORROWER HELD OR MAINTAINED
BY THE LENDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE MAJORITY LENDERS.
11.10 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC.
Each Lender and the Issuing Bank shall notify the Agent in writing of any
changes in the address to which notices to such Lender or Issuing Bank
should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of
such other administrative information as the Agent shall reasonably
request.
11.11 COUNTERPARTS. This Agreement may be executed in any
number of separate counterparts, each of which, when so executed, shall be
deemed an original, and all of said counterparts taken together shall be
deemed to constitute but one and the same instrument.
11.12 SEVERABILITY. The illegality or unenforceability of
any provision of this Agreement or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement or any
instrument or agreement required hereunder.
11.13 NO THIRD PARTIES BENEFITED. This Agreement is made
and entered into for the sole protection and legal benefit of the
Borrowers, the Lenders, the Issuing Bank, the Agent and the Agent-Related
Persons, and their permitted successors and assigns, and no other Person
shall be a direct or indirect legal beneficiary of, or have any direct or
indirect cause of action or claim in connection with, this Agreement or any
of the other Loan Documents.
11.14 GOVERNING LAW AND JURISDICTION.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF GEORGIA; PROVIDED
THAT THE AGENT, THE ISSUING BANK AND THE LENDERS SHALL RETAIN ALL RIGHTS
ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF GEORGIA OR OF THE FEDERAL COURTS SITTING IN THE STATE OF GEORGIA
AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE BORROWERS, THE
AGENT, THE ISSUING BANK, AND THE LENDERS CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.
EACH OF THE BORROWERS, THE AGENT, THE ISSUING BANK AND THE LENDERS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BASED ON THE GROUNDS OF FORUM NON CONVENIENS,
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY
DOCUMENT RELATED HERETO. THE BORROWERS, THE AGENT, THE ISSUING BANK, AND
THE LENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY GEORGIA LAW.
11.15 WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THE BORROWERS, THE LENDERS, THE ISSUING BANK, AND THE AGENT
EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY,
IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF
THE PARTIES AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON,
PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT
CLAIMS, OR OTHERWISE. THE BORROWERS, THE LENDERS, THE ISSUING BANK, AND
THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED
BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS
WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY
PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND
THE OTHER LOAN DOCUMENTS.
11.16 ENTIRE AGREEMENT. This Agreement, together with the
other Loan Documents, embodies the entire agreement and understanding among
the Borrowers, the Lenders, the Issuing Bank and the Agent, and supersedes
all prior or contemporaneous agreements and understandings of such Persons,
verbal or written, relating to the subject matter hereof and thereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in Atlanta, Georgia by their
proper and duly authorized officers as of the day and year first above
written.
Borrowers: INTERNATIONAL MUREX TECHNOLOGIES CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Vice President Controller
-------------------------------------
MUREX DIAGNOSTICS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Title: Director
--------------------------------------
IMTC HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Title: V.P. Finance
-------------------------------------
MUREX DIAGNOSTICS CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Director
------------------------------------
IMTC HOLDINGS (UK) LIMITED
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Director
------------------------------------
MUREX DIAGNOSTICS, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: V.P. Finance
------------------------------------
MUREX BIOTECH LIMITED
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Title: Director
-----------------------------------
Agent: BANK OF AMERICA, FSB
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------------
Title: V.P.
------------------------------------
Lenders: BANK OF AMERICA, FSB
By: /s/ Xxxx Xxxxxxxxxx
---------------------------------------
Title: V.P.
------------------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, acting through its London Branch
By: /s/ Illegible
----------------------------------------
Title: Vice President
-------------------------------------
Issuing Banks: BANK OF AMERICA ILLINOIS
By: /s/ Illegible
---------------------------------------
Title: Vice President
------------------------------------
BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, acting through its London Branch
By: /s/ Illegible
---------------------------------------
Title: Vice President
------------------------------------
