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EXHIBIT 10.30
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CREDIT AGREEMENT
by and among
MEDICAL DEVICE MANUFACTURING, INC.
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent and as Lender,
FLEET NATIONAL BANK,
as Syndication Agent and as Lender,
DRESDNER BANK AG, NEW YORK BRANCH AND GRAND CAYMAN BRANCH,
as Documentation Agent and as Lender
and
THE OTHER LENDERS PARTY HERETO FROM TIME TO TIME
May 31, 0000
XXXX XX XXXXXXX SECURITIES LLC,
as Co-Arranger and Book Manager
FLEETBOSTON XXXXXXXXX XXXXXXXX LLC,
as Co-Arranger
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
1.1 Definitions...................................................................2
1.2 Rules of Interpretation......................................................34
1.3 Accounting for Acquisitions..................................................35
1.4 Accounting for Derivatives...................................................36
ARTICLE II
The Credit Facilities
2.1 Term Loan....................................................................37
2.2 Revolving Loans..............................................................39
2.3 Use of Proceeds..............................................................42
2.4 Notes........................................................................43
2.5 Swing Line...................................................................43
ARTICLE III
Letters of Credit
3.1 Letters of Credit............................................................45
3.2 Reimbursement and Participations.............................................45
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
4.1 Interest Rate Options........................................................48
4.2 Conversions and Elections of Subsequent Interest Periods.....................49
4.3 Payment of Interest..........................................................49
4.4 Prepayments of Eurodollar Rate Loans.........................................50
4.5 Manner of Payment............................................................50
4.6 Fees.........................................................................51
4.7 Pro Rata Payments............................................................51
4.8 Computation of Rates and Fees................................................52
4.9 Deficiency Advances; Failure to Purchase Participations......................52
4.10 Intraday Funding.............................................................52
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ARTICLE V
Security
5.1 Security.....................................................................53
5.2 Further Assurances...........................................................54
5.3 Mortgages....................................................................54
5.4 Information Regarding Collateral.............................................55
5.5 Lease Assignments............................................................55
ARTICLE VI
Change in Circumstances
6.1 Increased Cost and Reduced Return............................................55
6.2 Limitation on Types of Loans.................................................57
6.3 Illegality...................................................................57
6.4 Treatment of Affected Loans..................................................58
6.5 Compensation.................................................................58
6.6 Taxes........................................................................59
ARTICLE VII
Conditions to Making Loans and Issuing Letters of Credit
7.1 Conditions of Term Loan and Initial Advance..................................60
7.2 Conditions of Revolving Loans and Letter of Credit...........................65
ARTICLE VIII
Representations and Warranties
8.1 Organization and Authority...................................................66
8.2 Loan Documents...............................................................67
8.3 Solvency.....................................................................67
8.4 Subsidiaries and Stockholders................................................67
8.5 Ownership Interests..........................................................68
8.6 Financial Condition..........................................................68
8.7 Title to Properties..........................................................69
8.8 Taxes........................................................................69
8.9 Other Agreements.............................................................69
8.10 Litigation...................................................................70
8.11 Margin Stock.................................................................70
8.12 Regulated Company............................................................70
8.13 Patents, Etc.................................................................70
8.14 No Untrue Statement..........................................................70
8.15 No Consents, Etc.............................................................70
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8.16 Employee Benefit Plans.......................................................71
8.17 No Default...................................................................72
8.18 Environmental Laws...........................................................72
8.19 Employment Matters...........................................................72
8.20 RICO.........................................................................73
8.21 Parent.......................................................................73
8.22 Related Transactions.........................................................73
8.23 Corporate Individuality......................................................73
ARTICLE IX
Affirmative Covenants
9.1 Financial Reports, Etc.......................................................73
9.2 Maintain Properties..........................................................75
9.3 Existence, Qualification, Etc................................................75
9.4 Regulations and Taxes........................................................75
9.5 Insurance....................................................................76
9.6 True Books...................................................................76
9.7 Right of Inspection..........................................................76
9.8 Observe all Laws.............................................................76
9.9 Governmental Licenses........................................................76
9.10 Covenants Extending to Other Persons.........................................77
9.11 Officer's Knowledge of Default...............................................77
9.12 Suits or Other Proceedings...................................................77
9.13 Notice of Environmental Complaint or Condition...............................77
9.14 Environmental Compliance.....................................................77
9.15 Indemnification..............................................................78
9.16 Further Assurances...........................................................78
9.17 Employee Benefit Plans.......................................................78
9.18 Continued Operations.........................................................79
9.19 New Subsidiaries.............................................................79
9.20 Swap Agreements..............................................................82
9.21 Use of Proceeds, Regulatory Compliance.......................................82
9.22 Earnout Equity Contributions.................................................82
9.23 Maintenance of Corporate Individuality.......................................82
ARTICLE X
Negative Covenants
10.1 Financial Covenants..........................................................83
10.2 Acquisitions.................................................................84
10.3 Capital Expenditures.........................................................85
10.4 Liens........................................................................85
10.5 Indebtedness.................................................................86
10.6 Transfer of Assets...........................................................88
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10.7 Investments..................................................................88
10.8 Merger or Consolidation......................................................89
10.9 Restricted Payments..........................................................89
10.10 Transactions with Affiliates.................................................89
10.11 Compliance with ERISA, the Code and Foreign Benefit Laws.....................90
10.12 Fiscal Year..................................................................90
10.13 Dissolution, etc.............................................................90
10.14 Limitations on Sales and Leasebacks..........................................91
10.15 Change in Control............................................................91
10.16 Rate Hedging Obligations.....................................................91
10.17 Negative Pledge Clauses......................................................91
10.18 Change in Accountants........................................................91
10.19 Prepayments, Etc. of Indebtedness............................................91
10.20 Partnerships.................................................................92
10.21 Amendment to Organizational Documents........................................92
10.22 Use of Proceeds..............................................................92
10.23 Limitations on Upstreaming...................................................92
ARTICLE XI
Events of Default and Acceleration
11.1 Events of Default............................................................92
11.2 Agent to Act.................................................................95
11.3 Cumulative Rights............................................................95
11.4 No Waiver....................................................................96
11.5 Allocation of Proceeds.......................................................96
ARTICLE XII
The Agent
12.1 Appointment, Powers, and Immunities..........................................97
12.2 Reliance by Agent............................................................98
12.3 Defaults.....................................................................98
12.4 Rights as Lender.............................................................98
12.5 Indemnification..............................................................98
12.6 Non-Reliance on Agent and Other Lenders......................................99
12.7 Resignation of Agent.........................................................99
ARTICLE XIII
Miscellaneous
13.1 Assignments and Participations..............................................100
13.2 Notices.....................................................................102
13.3 Right of Set-off; Adjustments...............................................103
13.4 Survival....................................................................104
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13.5 Expenses......................................................................104
13.6 Amendments and Waivers........................................................105
13.7 Counterparts; Facsimile Signatures............................................105
13.8 Termination...................................................................105
13.9 Indemnification; Limitation of Liability......................................106
13.10 Severability..................................................................107
13.11 Entire Agreement..............................................................107
13.12 Agreement Controls............................................................107
13.13 Usury Savings Clause..........................................................107
13.14 Payments......................................................................108
13.15 Governing Law; Waiver of Jury Trial...........................................108
13.16 Judgment Currency.............................................................109
EXHIBIT A Applicable Commitment Percentages.....................................A-1
EXHIBIT B Form of Assignment and Acceptance.....................................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized Representative....C-1
EXHIBIT D-1 Form of Borrowing Notice............................................D-1-1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans..........................D-2-1
EXHIBIT E Form of Interest Rate Selection Notice................................E-1
EXHIBIT F-1 Form of Revolving Note..............................................F-1-1
EXHIBIT F-2 Form of Term A Note.................................................F-2-1
EXHIBIT F-3 Form of Term B Note.................................................F-3-1
EXHIBIT F-4 Form of Swing Line Note.............................................F-4-1
EXHIBIT G Form of Opinion of Borrower's Counsel.................................G-1
EXHIBIT H Form of Compliance Certificate........................................H-1
EXHIBIT I Form of Borrowing Base Certificate....................................I-1
EXHIBIT J Form of Facility Guaranty.............................................J-1
EXHIBIT K Form of Security Agreement............................................K-1
EXHIBIT L Form of Pledge Agreement..............................................L-1
Schedule 1.1 Pro Forma Financial Statements and Adjustments........................S-1
Schedule 1.2 UTI Indebtedness to be Paid at Closing................................S-3
Schedule 5.3 Real Property.........................................................S-1
Schedule 8.4 Subsidiaries and Investments in Other Persons.........................S-3
Schedule 8.6 Indebtedness..........................................................S-4
Schedule 8.7 Liens.................................................................S-5
Schedule 8.8 Tax Matters...........................................................S-6
Schedule 8.10 Litigation............................................................S-7
Schedule 9.5 Insurance ............................................................S-8
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of May 31, 2000 (the "Agreement"), is
made by and among MEDICAL DEVICE MANUFACTURING, INC., a Colorado corporation
having its principal place of business in Arvada, Colorado (the "Borrower"),
BANK OF AMERICA, N.A., a national banking association organized and existing
under the laws of the United States, in its capacity as a Lender ("Bank of
America"), and each other financial institution executing and delivering a
signature page hereto and each other financial institution which may hereafter
execute and deliver an instrument of assignment with respect to this Agreement
pursuant to Section 13.1 (hereinafter such financial institutions may be
referred to individually as a "Lender" or collectively as the "Lenders"), BANK
OF AMERICA, N.A., a national banking association organized and existing under
the laws of the United States, in its capacity as administrative agent for the
Lenders (in such capacity, and together with any successor agent appointed in
accordance with the terms of Section 12.7, the "Agent"), FLEET NATIONAL BANK, as
Syndication Agent (in such capacity, "Fleet"), and DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN BRANCH, as Documentation Agent (in such capacity,
"Dresdner");
WITNESSETH:
WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower (a) a Term Loan A Facility in the principal amount of $45,000,000
and a Term Loan B Facility in the principal amount of $45,000,000, the proceeds
of which are to be used (i) to refinance the outstanding principal amount of
existing indebtedness of the Borrower and UTI Corporation, a Pennsylvania
corporation being acquired by the Borrower on the date hereof ("UTI"); (ii) to
pay the cash portion of the purchase price for UTI pursuant to the UTI
Acquisition Documents (as defined below); and (iii) to pay fees and expenses
incurred in connection with the UTI Acquisition (as defined below), and (b) a
revolving credit facility of up to $25,000,000, the proceeds of which are to be
used for working capital, acquisitions and other general corporate purposes and
which shall include a letter of credit facility of up to $5,000,000 for the
issuance of standby and commercial letters of credit and a swing line facility
of up to $5,000,000; and
WHEREAS, the Lenders are willing to make such term loans, revolving
credit and letter of credit facilities available to the Borrower upon the terms
and conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
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ARTICLE I
Definitions and Terms
1.1 Definitions. For the purposes of this Agreement, in addition to the
definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Account" means any account receivable, including any rights
of payment for goods sold or leased or for services rendered, which is
not evidenced by an instrument (as defined in the UCC) or chattel
paper, whether or not it has been earned by performance, and in
addition includes all property included in the definition of "accounts"
as used in the UCC, together with any guaranties, letters of credit and
other security therefor.
"Account Debtor" means a Person who is obligated under any
Account, General Intangible, chattel paper or instrument.
"Acquisition" means the acquisition, including the UTI
Acquisition, of (i) a controlling equity interest in another Person
(including the purchase of an option, warrant or convertible or similar
type security to acquire such a controlling interest at the time it
becomes exercisable by the holder thereof), whether by purchase of such
equity interest or upon exercise of an option or warrant for, or
conversion of securities into, such equity interest, or (ii) assets of
another Person that constitute all or substantially all of the assets
of such Person or of a line or lines of business conducted by such
Person, but shall not include investment in any joint venture pursuant
to which the acquiror shall hold fifty percent (50%) or less of the
equity interests of such joint venture.
"Acquisition Adjustments" means the adjustments to certain
financial terms and computations more particularly described in Section
1.3.
"Adjusted Consolidated EBITDA" means Consolidated EBITDA
calculated for the twelve-month period or Four-Quarter Period, as
applicable, ending on or most recently prior to the date of calculation
thereof adjusted to give pro forma effect to the UTI Acquisition, such
adjustments to be satisfactory to the Agent, based upon the pro forma
financial statements for each of the three fiscal quarters ended
September 30, 1999, December 31, 1999 and March 31, 2000, each as set
forth on Schedule 1.1, and the adjustments to be agreed upon by the
Agent and the Borrower to be applied to the fiscal quarter ending June
30, 2000.
"Adjusted Consolidated Fixed Charge Ratio" means, with respect
to the Borrower and its Subsidiaries for any date of computation
thereof, the ratio of (i) Consolidated EBITDA calculated for the
twelve-month period or Four-Quarter Period, as applicable, ending on or
most recently prior to the date of calculation thereof, plus the amount
of any Earnout Equity Contribution made on or before such date to fund
all or a part of any Earnout Payment to which such calculation relates
less (without duplication) Capital Expenditures paid in cash during the
most recently ended twelve-month period less all
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income taxes paid in cash during such twelve-month period to (ii)
Adjusted Consolidated Fixed Charges for such twelve-month period.
"Adjusted Consolidated Fixed Charges" means, with respect to
the Borrower and its Subsidiaries for the twelve-month period or Four
Quarter Period for which the Adjusted Consolidated Fixed Charge Ratio
is computed, the sum of, without duplication, (i) Consolidated Interest
Expense, (ii) current maturities of Consolidated Indebtedness (iii) any
dividends paid in cash during such twelve-month period, (iv) all
management fees paid during such twelve-month period and (v) the
Earnout Payment proposed to be made on the date of calculation thereof
in accordance with Section 2.3(b), all determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis, subject to
Acquisition Adjustments.
"Advance" means any of (i) the borrowing under the Term Loan
Facilities or (ii) a borrowing under the Revolving Credit Facility
consisting of a Base Rate Loan or a Eurodollar Rate Loan.
"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with the Borrower; or (ii) which beneficially owns
or holds 10% or more of any class of the outstanding voting stock (or
in the case of a Person which is not a corporation, 10% or more of the
equity interest) of the Borrower; or 10% or more of any class of the
outstanding voting stock (or in the case of a Person which is not a
corporation, 10% or more of the equity interest) of which is
beneficially owned or held by the Borrower; provided, however, at the
time the Borrower registers any security issued by it pursuant to the
Securities Act of 1933, as amended, the figure "10%" used in this
definition shall automatically change to "5%" without further action.
The term "control" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies
of a Person, whether through ownership of voting stock, by contract or
otherwise.
"Applicable Commitment Fee" means that percent per annum based
upon the Consolidated Leverage Ratio for the Four-Quarter Period most
recently ended, set forth as the Applicable Commitment Fee in the
Pricing Grid and subject to further adjustment as therein provided.
"Applicable Commitment Percentage" means, for each Lender at
any time, a fraction, (i) with respect to the Revolving Credit Facility
and the Letter of Credit Facility the numerator of which shall be such
Lender's Revolving Credit Commitment and the denominator of which shall
be the Total Revolving Credit Commitment, (ii) with respect to the Term
Loan A Facility, the numerator of which shall be such Lender's Term
Loan A Commitment and the denominator shall be the Total Term Loan A
Commitment and (iii) with respect to the Term Loan B Facility, the
numerator of which shall be such Lender's Term Loan B Commitment and
the denominator shall be the Total Term Loan B Commitment, which
Applicable Commitment Percentages for each Lender as of the Closing
Date are as set forth in Exhibit A; provided that the Applicable
Commitment
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Percentages of each Lender shall be increased or decreased to reflect
any assignments to or by such Lender effected in accordance with
Section 13.1.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Agent and the Borrower by written notice in accordance with the
terms hereof as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Margin" means that percent per annum based upon
the Consolidated Leverage Ratio for the Four-Quarter Period most
recently ended, set forth as the Applicable Margin in the Pricing Grid
and subject to further adjustment as therein provided.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation, executed by the Borrower from time to time and
delivered to the Issuing Bank to support the issuance of Letters of
Credit.
"Asset Disposition" means any voluntary disposition, whether
by sale, lease or transfer, of (a) any of the assets, excluding cash
and cash equivalents, of the Borrower or its Subsidiaries, and (b) any
of the capital stock, or securities or investments exchangeable,
exercisable or convertible for or into, or otherwise entitling the
holder to receive any of the capital stock, of any Subsidiary (other
than a disposition to a Guarantor).
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to Section 13.1.
"Authorized Representative" means any of the President, Chief
Executive Officer, Chief Operating Officer or any Vice President of the
Borrower or, with respect to financial matters, the Chief Financial
Officer or Vice President of Finance of the Borrower, or any other
Person expressly designated by the Board of Directors of the Borrower
(or the appropriate committee thereof) as an Authorized Representative
of the Borrower, as set forth from time to time in a certificate in the
form of Exhibit C.
"Bank of America" means Bank of America, N.A. and its
successors.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means, for any day, the rate per annum equal to
the sum of (a) the higher of (i) the Federal Funds Rate for such day
plus one-half of one percent (0.5%) and (ii) the Prime Rate for such
day plus (b) the Applicable Margin. Any change in the Base
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Rate due to a change in the Prime Rate or the Federal Funds Rate shall
be effective on the effective date of such change in the Prime Rate or
Federal Funds Rate.
"Base Rate Loan" means a Loan (including a Segment) for which
the rate of interest is determined by reference to the Base Rate.
"Base Rate Segment" means a Segment bearing interest or to
bear interest at the Base Rate.
"Base Rate Refunding Loan" means a Base Rate Loan or Swing
Line Loan made either to (i) satisfy Reimbursement Obligations arising
from a drawing under a Letter of Credit, or (ii) pay the Swing Line
Lender in respect of Swing Line Outstandings.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrower Subordinated Debt" means the Indebtedness of the
Borrower to the Note Holders in the principal amount of $21,500,000
incurred pursuant to the Borrower Subordinated Debt Documents.
"Borrower Subordinated Debt Documents" means that certain
Indenture by and among the Borrower, the guarantors party thereto and
the Trustee thereunder, and the notes and other material agreements
related thereto, all in form and substance acceptable to the Agent,
pursuant to which the Note Holders have purchased those certain 13.5%
Senior Subordinated Notes due 2007.
"Borrower's Account" means any demand deposit account or any
successor account with the Agent, which may be maintained at one or
more offices of the Agent or an agent of the Agent.
"Borrowing Base" means, as of the date of determination
thereof, (i) Eligible Receivables multiplied by 85% plus (ii) the
value, determined at the lower of cost or fair market value in
accordance with GAAP, of all Eligible Inventory multiplied by 60%.
"Borrowing Base Certificate" means a certificate of an
Authorized Representative in the form attached hereto as Exhibit I
hereto.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line Loan, in the forms of Exhibits D-1 and D-2,
respectively.
"Business Day" means, (i) except as expressly provided in
clause (ii), any day which is not a Saturday, Sunday or a day on which
banks in the States of New York and North Carolina are authorized or
obligated by law, executive order or governmental decree to be closed,
and (ii) with respect to the selection, funding, interest rate,
payment, and Interest Period of any Eurodollar Rate Loan, any day which
is a Business Day, as
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described above, and on which the relevant international financial
markets are open for the transaction of business contemplated by this
Agreement in London, England, New York, New York and Charlotte, North
Carolina.
"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period the sum of (without duplication) (i)
all expenditures (whether paid in cash or accrued as liabilities) by
the Borrower or any Subsidiary during such period for items that would
be classified as "property, plant or equipment" or comparable items on
the consolidated balance sheet of the Borrower and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in writing
and submitted to the Agent together with any compliance certificate
delivered pursuant to Section 9.1(a) or (b), and (ii) with respect to
any Capital Lease entered into by the Borrower or its Subsidiaries
during such period, the present value of the lease payments due under
such Capital Lease over the term of such Capital Lease applying a
discount rate equal to the interest rate provided in such lease (or in
the absence of a stated interest rate, that rate used in the
preparation of the financial statements described in Section 9.1(a)),
all the foregoing in accordance with GAAP applied on a Consistent
Basis.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Change of Control" means, at any time:
(i) any "person" or "group" (each as used in Sections
13(d)(3) and 14(d)(2) of the Exchange Act) other than KRG
Capital Group either (A) becomes the "beneficial owner" (as
defined in Rule 13d-3 of the Exchange Act), directly or
indirectly, of Voting Securities of the Parent (or securities
convertible into or exchangeable for such Voting Securities)
representing (1) 33-1/3% or more of the combined voting power
of all Voting Securities of the Parent (on a fully diluted
basis) or (2) at any time, combined voting power more than the
combined voting power of KRG Capital Group at such time, or
(B) otherwise has the ability, directly or indirectly, to
elect a majority of the board of directors of the Parent;
(ii) during any period of up to 24 consecutive
months, commencing on the Closing Date, individuals who at the
beginning of such 24-month period were directors of the Parent
(together with successors who were nominated or appointed by a
majority of the directors then in office) shall cease for any
reason (other than the death, disability or retirement of an
officer of the Parent that is serving as a director at such
time so long as another officer of the Parent replaces such
Person as a director) to constitute a majority of the board of
directors of the Parent; or
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(iii) any Person or two or more Persons, other than
KRG Capital Group, acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract
or arrangement that, upon consummation thereof, will result in
its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence on the management or
policies of the Parent.
(iv) KRG Capital Group ceases to beneficially own,
directly or indirectly, at least 80% of the Voting Securities
of the Parent owned by KRG Capital Group on the Closing Date.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in Section 7.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Collateral" means, collectively, all property of the
Borrower, any Subsidiary or any other Person in which the Agent or any
Lender is granted a Lien under any Security Instrument as security for
all or any portion of the Obligations.
"Compliance Certificate" means a certificate of an Authorized
Representative demonstrating compliance with the financial covenants
contained in Sections 10.1(a) through 10.1(c) and Section 10.3,
substantially in the form of Exhibit H;
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements of the Borrower referred to as of
the Closing Date in Section 8.6(a)(i).
"Consolidated Current Assets" means cash and all other assets
of the Borrower and its Subsidiaries which are expected to be realized
in cash, sold in the ordinary course of business, or consumed within
one year or which would be classified as a current asset, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis.
"Consolidated Current Liabilities" means all liabilities of
the Borrower and its Subsidiaries which by their terms are payable
within one year (including all Indebted-ness payable on demand or
maturing not more than one year from the date of computation and the
current portion of Indebtedness having a maturity date in excess of one
year), all determined on a consolidated basis in accordance with GAAP
applied on a Consistent Basis.
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (i) Consolidated
Net Income, (ii) Consolidated Interest Expense, (iii)
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taxes on income, (iv) amortization, and (v) depreciation, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis, subject to Acquisition Adjustments; provided however
that to the extent Consolidated Net Income is reduced thereby,
Consolidated EBITDA shall be increased by the amount of all Earnout
Payments permitted hereunder made during such period and by the amount
of the following non-cash items to the extent incurred during such
period: (y) charges during such period in respect of stock option and
phantom equity plans approved by the Board of Directors and (z)
purchase price accounting adjustments.
"Consolidated Fixed Charge Ratio" means, with respect to the
Borrower and its Subsidiaries for any Four-Quarter Period ending on the
date of computation thereof, the ratio of (i) Consolidated EBITDA for
such period less (without duplication) Capital Expenditures paid in
cash during such period less all income taxes paid in cash during such
period, to (ii) Consolidated Fixed Charges for such period.
"Consolidated Fixed Charges" means, with respect to the
Borrower and its Subsidiaries for any Four-Quarter Period ending on the
date of computation thereof, the sum of, without duplication, (i)
Consolidated Interest Expense, (ii) current maturities of Consolidated
Indebtedness (iii) any dividends paid in cash during such period and
(iv) all management fees, including management fees arising under the
Management Agreement or otherwise, paid during such period, all
determined on a consolidated basis in accordance with GAAP applied on a
Consistent Basis, subject to Acquisition Adjustments.
"Consolidated Indebtedness" means all Indebtedness for Money
Borrowed of the Borrower and its Subsidiaries, all determined on a
consolidated basis.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the extent included in
gross interest expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Rate Hedging Obligations)
payable in connection with the incurrence of Indebtedness to the extent
included in gross interest expense and (iii) the portion of any
payments made in connection with Capital Leases allocable to interest
expense, all determined on a consolidated basis in accordance with GAAP
applied on a Consistent Basis, subject to Acquisition Adjustments;
provided, however that Consolidated Interest Expense shall include the
amount of payments in respect of Synthetic Lease Obligations that are
in the nature of interest.
"Consolidated Lease Payments" means the gross amount of all
lease or rental payments, whether or not characterized as rent, of the
Borrower and its Subsidiaries, excluding payments in respect of Capital
Leases constituting Indebtedness, all determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis.
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"Consolidated Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) Consolidated Indebtedness
determined as at such date to (ii) Consolidated EBITDA for the
Four-Quarter Period ending on (or most recently ended prior to) such
date.
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries (including payments received by the Borrower and its
Subsidiaries of (i) interest income, and (ii) dividends and
distributions made in the ordinary course of their businesses by
Persons in which investment is permitted pursuant to this Agreement and
not related to an extraordinary event), less all operating and
non-operating expenses of the Borrower and its Subsidiaries including
taxes on income, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis; but excluding (for all
purposes other than the computation of Consolidated EBITDA utilized to
determine Excess Cash Flow) as income: (i) net gains (including net of
taxes) on the sale, conversion or other disposition of capital assets,
(ii) net gains (including net of taxes) on the acquisition, retirement,
sale or other disposition of capital stock and other securities of the
Borrower or its Subsidiaries, (iii) net gains (including net of taxes)
on the collection of proceeds of life insurance policies, (iv) any
write-up of any asset, and (v) any other net gain or credit of an
extraordinary nature as determined in accordance with GAAP applied on a
Consistent Basis, subject to Acquisition Adjustments.
"Consolidated Senior Indebtedness" means all Consolidated
Indebtedness of the Borrower and its Subsidiaries less all Subordinated
Debt, determined on a consolidated basis.
"Consolidated Senior Leverage Ratio" means, as of the date of
computation thereof, the ratio of (i) Consolidated Senior Indebtedness
(determined as at such date) to (ii) Consolidated EBITDA (for the
Four-Quarter Period ending on or most recently ended prior to such
date).
"Consolidated Working Capital" means, as of any date on which
the amount thereof is to be determined, the excess of Consolidated
Current Assets over Consolidated Current Liabilities.
"Contingent Obligation" means, as to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness,
lease, dividend, guaranty, letter of credit or other obligation (each a
"primary obligation") of another Person (the "primary obligor"),
whether or not contingent, (a) to purchase, repurchase or otherwise
acquire any such primary obligation or any property constituting direct
or indirect security therefor, or (b) to advance or provide funds (i)
for the payment or discharge of any such primary obligation, or (ii) to
maintain working capital or equity capital of the primary obligor in
respect of any such primary obligation or otherwise to maintain the net
worth or solvency or any balance sheet item, level of income or
financial condition of such primary obligor, or (c) 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 thereof to
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make payment of such primary obligation, or (d) otherwise to assure or
hold harmless the owner of any such primary obligation against loss or
failure or inability to perform in respect thereof. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of
which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof.
"Continue," "Continuation," and "Continued" shall refer to the
continuation pursuant to Section 4.2 hereof of a Eurodollar Rate Loan
of one Type as a Eurodollar Rate Loan of the same Type from one
Interest Period to the next Interest Period.
"Convert," "Conversion," and "Converted" shall refer to a
conversion pursuant to Section 4.2 of one Type of Loan into another
Type of Loan.
"Cost of Acquisition" means, with respect to any Acquisition,
as at the date of entering into any agreement therefor, the sum of the
following (without duplication): (i) the value of the capital stock,
warrants or options to acquire capital stock of Borrower or any
Subsidiary to be transferred in connection therewith, (ii) the amount
of any cash and fair market value of other property (excluding property
described in clause (i) and the unpaid principal amount of any debt
instrument) given as consideration, (iii) the payoff or redemption
amount of any Indebtedness incurred, assumed or acquired by the
Borrower or any Subsidiary in connection with such Acquisition, (iv)
all additional purchase price amounts in the form of earnouts and other
contingent obligations that should be recorded on the financial
statements of the Borrower and its Subsidiaries in accordance with
GAAP, (v) all amounts paid in respect of covenants not to compete,
consulting agreements that should be recorded on financial statements
of the Borrower and its Subsidiaries in accordance with GAAP, and other
affiliated contracts in connection with such Acquisition, (vi) the
aggregate fair market value of all other consideration given by the
Borrower or any Subsidiary in connection with such Acquisition, and
(vii) out of pocket transaction costs for the services and expenses of
attorneys, accountants and other consultants incurred in effecting such
transaction, and other similar transaction costs so incurred. For
purposes of determining the Cost of Acquisition for any transaction,
(A) the capital stock of the Borrower and its Subsidiaries shall be
valued, as determined by a committee composed of the disinterested
members of the Board of Directors of the Borrower and, if requested by
the Agent, determined to be a reasonable valuation by the independent
public accountants referred to in Section 9.1(a), and (B) with respect
to any Acquisition accomplished pursuant to the exercise of options or
warrants or the conversion of securities, the Cost of Acquisition shall
include both the cost of acquiring such option, warrant or convertible
security as well as the cost of exercise or conversion.
"Credit Parties" means, collectively, the Borrower, the
Parent, each other Guarantor and each other Person providing Collateral
pursuant to any Security Instrument.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
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"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, and (ii) with respect to Base Rate
Loans, Swing Line Loans, Reimbursement Obligations, fees, and other
amounts payable in respect of (x) Obligations or (y) (except as
otherwise expressly provided therein) the obligations of any other
Credit Party under any of the other Loan Documents, a rate of interest
per annum which shall be two percent (2%) above the Base Rate and (iv)
in any case, the maximum rate permitted by applicable law, if lower.
"Direct Foreign Subsidiary" means a Subsidiary other than a
Domestic Subsidiary a majority of whose Voting Securities, or a
majority of whose Subsidiary Securities, are owned by the Borrower or a
Domestic Subsidiary.
"DLJ" means DLJ Investment Partners II, Inc. acting on behalf
of DLJ Investment Partners II, L.P. and related investors.
"Domestic Subsidiary" means any Subsidiary of the Borrower
organized under the laws of the United States of America, any state or
territory thereof or the District of Columbia.
"Earnout Equity Contribution" means any cash equity
contribution to the Borrower by KRG Capital Group to permit an Earnout
Payment required pursuant to Section 9.22.
"Earnout Payments" means the payments to be made to (i) the
Sellers and Eligible Employees, as those terms are defined in the Share
Purchase Agreement dated December 22, 1999 (the "Noble-Met Agreement"),
pursuant to the terms of the Noble-Met Agreement and in an aggregate
amount not to exceed $21,000,000, (ii) the Sellers, as that term is
defined in the Share Purchase Agreement dated May 31, 2000 (the "UTI
Agreement"), pursuant to the terms of the UTI Agreement and in an
aggregate amount not to exceed $10,000,000, and (iii) the Sellers, as
that term is defined in the Agreement and Plan of Merger, dated May 12,
2000 (the "MER Agreement"), pursuant to the terms of the First Deferred
Cash Payment and the Second Deferred Cash Payment as those terms are
defined in the MER Agreement and the noncompete payment pursuant to the
Noncompetition Agreement among MDMI, Medical Engineering Resources,
Ltd. and Xxxxxx Xxxxxxx, and in an aggregate amount not to exceed
$450,000.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 13.1, the Borrower,
such approval not to be unreasonably withheld (provided that the
incurrence by the Borrower of additional costs pursuant to Section 6.6
as a result of such assignment shall constitute a reasonable basis for
withholding such consent) or delayed by the Borrower and such approval
to be deemed given by the Borrower (in the absence of
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notice to the contrary, effective upon receipt) within two Business
Days after notice of such proposed assignment has been provided by the
assigning Lender to the Borrower; provided, however, that neither the
Borrower nor an affiliate of the Borrower shall qualify as an Eligible
Assignee.
"Eligible Inventory" means inventory of the Borrower and its
Domestic Subsidiaries valued at the lesser of cost or current market
value, all of which inventory is, at any given time, (a) not damaged or
defective in any way; (b) not sold or segregated for sale or otherwise
reflected as an Account of the Borrower or any Guarantor; (c) not
consigned inventory; (d) not inventory-in-transit or located in a place
other than at the locations listed on Schedule 1.1 hereto; (e) not
work-in-process (provided that 50% of the value (at the lesser of cost
or fair market value) of work-in-progress shall be included in
calculating the amount of Eligible Inventory); (f) not constituting
packaging materials and supplies (other than packaging materials which
are inventory held for sale to third parties); (g) not inventory
evidenced by negotiable warehouse receipts or by non-negotiable
warehouse receipts or bills of lading or documents of title which have
not been issued in the name of the Agent; (h) not inventory subject to
any Lien (other than Permitted Liens) or otherwise not in conformity
with the representations and warranties contained in the Security
Instruments and (j) not inventory deemed ineligible by the Agent in its
sole judgment and discretion;
"Eligible Receivables" means all Accounts evidenced by an
invoice (valued at the face amount of such invoice, less maximum
discounts, rebates, credits and allowances which may be taken by
Account Debtors on such Accounts, and net of any sales tax, finance
charges or late payment charges included in the invoiced amount)
created or acquired by the Borrower or any of its Domestic Subsidiaries
in the ordinary course of its business arising from the sale of
inventory and/or the provision of services in its ordinary course of
business in which the Agent has a first priority, perfected security
interest (subject only to Permitted Liens), but excluding (a) Accounts
outstanding for longer than the sooner of (i) ninety (90) days from the
date of original invoice or (ii) sixty (60) days from the original due
date; (b) all Accounts owed by an Account Debtor if more than fifty
percent (50%) of the Accounts owed by such Account Debtor to the
Borrower or the applicable Subsidiary are deemed ineligible hereunder;
(c) Accounts owing from any Affiliate of Borrower or its Subsidiaries;
(d) Accounts owed by a creditor of the Borrower or its Subsidiaries to
the extent of the amount of the obligation of the Borrower or its
Subsidiaries to such creditor; (e) Accounts which are in dispute or
subject to any post-dated payment items, retainage, counterclaim,
contra-account or offset, but only to the extent of the amount disputed
and the specific amount subject to post-dated payment items, retainage,
counterclaim, contra-account or offset; (f) Accounts owing by any
Account Debtor which is not Solvent; (g) Accounts arising from a sale
on a xxxx-and-hold, guaranteed sale, sale-or-return, sale-on-approval,
consignment or similar basis or which is subject to repurchase, return,
rejection, repossession, loss or damage; (h) Accounts owed by an
Account Debtor domiciled outside of the continental United States of
America, unless (1) such Account is supported by a letter of credit or
credit insurance acceptable to the Agent and assigned to the Agent and
which is issued by a financial institution and in an amount which is
acceptable to the Agent or (2) such foreign Account
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Debtor is the subsidiary of a United States corporation whose senior
unsecured debt is rated Baa2 or higher by Xxxxx'x and BBB or higher by
S&P or (3) such foreign Account Debtor is otherwise identified in
writing by the Agent as acceptable; (i) Accounts owed by the United
States of America or any state or other governmental or quasi
governmental unit, agency or subdivision unless Borrower shall have
complied with all applicable federal and state assignment of claims
laws, and Borrower has provided the Agent written evidence satisfactory
to Agent of such compliance; (j) Accounts in excess of $1,000,000 that
are denominated in other than United States Dollars; (k) Accounts as to
which the goods giving rise to the Account have not been delivered to
and accepted by the Account Debtor or the service giving rise to the
Account has not been completely performed or which do not represent a
final sale; (l) Accounts for which the total of all Accounts from any
three Account Debtors (together with the Affiliates of the Account
Debtors) would, when combined exceed thirty-five percent (35%) of the
total Accounts of the Borrower and its Domestic Subsidiaries (to the
extent of such excess); (m) Accounts which, by contract, subrogation,
mechanics' lien laws or otherwise, are subject to claims by Borrower's
or its Subsidiaries' creditors or other third parties or which are owed
by Account Debtors as to whom any creditor of Borrower or its
Subsidiaries (including any bonding company) has lien or retainage
rights; (n) any and all other Accounts the validity, collectibility, or
amount of which is determined in good faith in accordance with GAAP by
the Borrower or its Subsidiaries to be doubtful; (o) Accounts owed by
an Account Debtor which is located in a jurisdiction where Borrower or
its Subsidiaries are required to qualify to transact business or to
file reports, unless Borrower or such Subsidiary has so qualified or
filed and provided written evidence satisfactory to Bank of such
compliance; (p) any Account as to which any representation, warranty or
covenant contained in the Security Agreement shall be untrue or
misleading, and (q) any other Account which the Agent otherwise in its
sole and absolute discretion deems to be ineligible.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(a) Government Securities;
(b) obligations of any corporation organized under
the laws of any state of the United States of America or under
the laws of any other nation, payable in the United States of
America, expressed to mature not later than 92 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P and Xxxxx'x; and
(c) interest bearing demand or time deposits issued
by any Lender or certificates of deposit maturing within one
year from the date of issuance thereof and issued by a bank or
trust company organized under the laws of the United States or
of any state thereof having capital surplus and undivided
profits aggregating at least $400,000,000 and being rated "A"
or better by S&P or "A" or better by Xxxxx'x ;
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(d) obligations of the type described in clauses (a)
through (c) above purchased from a securities dealer
designated as a "primary dealer" by the Federal Reserve Bank
of New York or a commercial bank incorporated under the laws
of the United States of America or any state thereof or the
District of Columbia each having as at any date of
determination a combined capital and surplus of not less than
$100,000,000 (each a "Permitted Bank") as counterparty
pursuant to a repurchase agreement obligating such
counterparty to repurchase such obligations not later than 30
days after the purchase thereof and which provides that the
obligations which are the subject thereof are held for the
benefit of the Borrower or any Subsidiary by a custodian which
is a Permitted Bank and which is not the counterparty to the
repurchase agreement in question; and
(e) the securities of any investment company
registered under the Investment Company Act of 1940, as
amended, which is a "money market fund" within the meaning of
regulations of the Securities and Exchange Commission, or an
interest in a pooled fund maintained by a Permitted Bank
having comparable investment restrictions, and in each case,
with assets of at least $100,000,000.
"Employee Benefit Plan" means (i) any employee benefit plan,
including any Pension Plan, within the meaning of Section 3(3) of ERISA
which (A) is maintained for employees of the Borrower or any of its
ERISA Affiliates, or any Subsidiary or is assumed by the Borrower or
any of its ERISA Affiliates, or any Subsidiary in connection with any
Acquisition or (B) has at any time been maintained for the employees of
the Borrower, any current or former ERISA Affiliate, or any Subsidiary
and (ii) any plan, arrangement, understanding or scheme maintained by
the Borrower or any Subsidiary that provides retirement, deferred
compensation, employee or retiree medical or life insurance, severance
benefits or any other benefit covering any employee or former employee
and which is administered under any Foreign Benefit Law or regulated by
any Governmental Authority other than the United States of America.
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as
amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder, and any other "Superfund" or
"Superlien" law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
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"ERISA Affiliate," as applied to the Borrower, means any
Person or trade or business which is a member of a group which is under
common control with the Borrower, who together with the Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
"Eurodollar Rate Loan" means a Loan (including a Segment) for
which the rate of interest is determined by reference to the Eurodollar
Rate.
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
---------------------- Margin
Rate 1- Reserve Requirement
"Eurodollar Rate Segment" means a Segment bearing interest or
to bear interest at the Eurodollar Rate.
"Event of Default" means any of the occurrences set forth as
such in Section 11.1.
"Excess Cash Flow" means, with respect to the Borrower and its
Subsidiaries for any Fiscal Year, the difference of (i) Consolidated
EBITDA for such period (including therein any net gain or loss, as
applicable, of an extraordinary nature otherwise excluded from the
calculation thereof in the definition of "Consolidated Net Income")
minus (ii) the sum of (A) the change in Consolidated Working Capital
(positive or negative) as at the end of such Fiscal Year; provided the
positive change in Consolidated Working Capital shall not exceed
$5,000,000 for the Fiscal Year ended December 31, 2000 and thereafter
for any Fiscal Year shall not exceed the product of $5,000,000
multiplied times a fraction, the numerator of which is gross sales for
such Fiscal Year and the denominator of which is gross sales for the
Fiscal Year ended December 31, 2000; plus (B) Capital Expenditures
permitted hereunder for such period plus (C) Consolidated Fixed Charges
for such period plus (D) the aggregate amount of any optional
prepayments made by the Borrower pursuant to Section 2.1(d) hereof
during such period and required repayments of principal of the Term
Loan during such period plus (E) the amount of all Earnout Payments
made during such period plus (F) the amount of all taxes paid in cash
during such period.
"Excess Cash Flow Prepayment" has the meaning given to such
term in Section 2.1(d).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Existing Credit Facility" means the credit facilities
provided to the Borrower under that certain Amended and Restated Credit
Agreement dated as of January 11, 2000 between the Borrower and Banc of
America Commercial Finance Corporation.
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"Facility Guaranty" means, individually or collectively, as
the context may require, the Parent Guaranty, the Guaranty Agreement
dated as of the date hereof by each Domestic Subsidiary (other than the
FSC Subsidiary) existing on the Closing Date, and each other Guaranty
Agreement between one or more Guarantors and the Agent for the benefit
of the Agent and the Lenders, delivered as of the Closing Date and
otherwise pursuant to Section 9.19, as the same may be amended,
modified or supplemented.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Revolving Credit Facility and the Swing Line by payment
in full of all Revolving Credit Outstandings, Letter of Credit
Outstandings and Swing Line Outstandings, together with all accrued and
unpaid interest thereon, except for the undrawn portion of Letters of
Credit as have been fully cash collateralized in a manner consistent
with the terms of Section 11.1(B), (b) the Borrower shall have paid all
Term Loan Outstandings in full, together with all accrued and unpaid
interest thereon, (c) all Swap Agreements shall have been terminated,
expired or cash collateralized, (d) all Term Loan Commitments,
Revolving Credit Commitments, and Letter of Credit Commitments shall
have terminated or expired and (e) the Borrower shall have fully,
finally and irrevocably paid and satisfied in full all Obligations
(other than Obligations consisting of continuing indemnities and other
contingent Obligations of the Borrower or any Guarantor that may be
owing to the Lenders pursuant to the Loan Documents and expressly
survive termination of this Agreement).
"FASB 133 Adjustments" means entries on or adjustments to any
balance sheet or statement of income in respect of derivatives or
hedging instruments as required or permitted by Statement of Financial
Accounting Standards No. 133.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Agent (in its individual capacity) on such day on such
transactions as determined by the Agent.
"FBRS" means FleetBoston Xxxxxxxxx Xxxxxxxx Inc. and its
successors.
"Fiscal Year" means the twelve month fiscal period of the
Parent or the Borrower and its Subsidiaries commencing on January 1 of
each calendar year and ending on December 31 of each calendar year.
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory,
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protectorate or other political subdivision thereof regulating,
relating to, or imposing liability or standards of conduct concerning,
any Employee Benefit Plan.
"Foreign Subsidiary" means any Subsidiary that is not a
Domestic Subsidiary.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrower and its Subsidiaries, taken together as
one accounting period.
"FSC Subsidiary" means Noble-Met Foreign Sales Corp., a Virgin
Islands corporation (and any replacement Subsidiary), formed for the
sole purpose of participating in the sales of property by and on behalf
of Borrower outside the United States which Subsidiary owns no
inventory and retains no cash or cash equivalents other than cash and
cash equivalents sufficient to pay expenses associated with maintenance
of an office and related personnel engaged to conduct its business in
the jurisdiction in which it is domiciled.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public
Accountants, or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a
foreign entity or government.
"Guarantors" means, at any date, the Parent and the
Subsidiaries who are required to be parties to a Facility Guaranty at
such date.
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
"Indebtedness" means as to any Person, without duplication,
(a) all Indebtedness for Money Borrowed of such Person, (b) all Rate
Hedging Obligations of such Person, (c) all indebtedness secured by any
Lien on any property or asset owned or held by such Person regardless
or whether the indebtedness secured thereby shall have been assumed
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by such Person or is non-recourse to the credit of such Person, and (d)
all Contingent Obligations of such Person, including all such items
incurred by any partnership or joint venture as to which such Person is
liable as a general partner or joint venturer.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, all indebtedness in respect of money
borrowed, including without limitation, all obligations under Capital
Leases, all Synthetic Lease Obligations, the deferred purchase price of
any property or services, the aggregate face amount of all surety
bonds, letters of credit, and bankers' acceptances, and (without
duplication) all payment and reimbursement obligations in respect
thereof whether or not matured, evidenced by a promissory note, bond,
debenture or similar written obligation for the payment of money
(including reimbursement agreements and conditional sales or similar
title retention agreements), including all such items incurred by any
partnership or joint venture as to which such Person is liable as a
general partner or joint venturer, other than trade payables and
accrued expenses incurred in the ordinary course of business.
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan for the Interest Period applicable thereto, the rate per
annum (rounded upwards, if necessary), to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "Interbank Offered
Rate" shall mean, with respect to any Eurodollar Rate Loan for the
Interest Period applicable thereto, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period for a term comparable to
such Interest Period, provided, however; if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates (rounded upwards, if necessary, to
the nearest 1/100 of 1%).
"Interest Period" means for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted or Continued and ending (a) during the Syndication Period,
one month thereafter, and (b) after the Syndication Period, at the
Borrower's option, on the date one, two, three or six months
thereafter, as notified to the Agent by the Authorized Representative
in accordance with the terms hereof; provided that,
(i) if any Interest Period would end on a day which
is not a Business Day, such Interest Period shall be extended
to the next Business Day (unless, in the case of a Eurodollar
Rate Loan, such extension would cause the applicable Interest
Period to end in the succeeding calendar month, in which case
such Interest Period shall end on the next preceding Business
Day); and
(ii) any Interest Period for a Eurodollar Rate Loan
which begins on the last Business Day of a calendar month (or
on a day for which there is no
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numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last Business Day of
a calendar month; and
(iii) no Interest Period shall extend beyond the
Stated Termination Date.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or the Conversion of any Eurodollar Rate Loan into a Base Rate Loan or
the Conversion of any Base Rate Loan into a Eurodollar Rate Loan, in
the form of Exhibit E.
"IP Security Agreement" means, collectively (or individually
as the context may indicate), (i) the Intellectual Property Security
Agreement dated as of the date hereof by the Parent, the Borrower and
its Domestic Subsidiaries to the Agent, and (ii) any additional
Intellectual Property Security Agreement delivered to the Agent
pursuant to Section 9.19, as hereafter modified, amended or
supplemented from time to time.
"Issuing Bank" means Bank of America as issuer of Letters of
Credit under Article III.
"KRG Capital Group" means KRG Capital Partners, LLC, a
Delaware limited liability company, and its affiliated funds and their
respective partners or members.
"Lease Assignment" means, collectively (or individually as the
context may indicate), (i) each Assignment of Lesse's Interest in Lease
dated as of the date hereof by the Borrower and/or certain of its
Domestic Subsidiaries to the Agent, and (ii) any additional Assignment
of Lessee's Interest in Lease delivered to the Agent pursuant to
Section 5..5 or Section 9.19, as hereafter modified, amended or
supplemented from time to time.
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Borrower and the Agent, as amended,
modified or supplemented from time to time.
"Letter of Credit" means a standby or commercial letter of
credit issued by the Issuing Bank pursuant to Article III hereof for
the account of the Borrower in favor of a Person advancing credit or
securing an obligation on behalf of the Borrower.
"Letter of Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to acquire Participations in
respect of Letters of Credit and Reimbursement Obligations up to an
aggregate amount at any one time outstanding equal to such Lender's
Applicable Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from time to time
pursuant to this Agreement.
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"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by the Issuing Bank for
the account of the Borrower of Letters of Credit in an aggregate stated
amount at any time outstanding not exceeding the Total Letter of Credit
Commitment minus outstanding Reimbursement Obligations.
"Letter of Credit Outstandings" means, as of any date of
determination, the aggregate amount available to be drawn under all
Letters of Credit plus Reimbursement Obligations then outstanding.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loan" or "Loans" means any of the Revolving Loans, the Term
Loans and the Swing Line Loans, including any Segment, made under the
Revolving Credit Facility or the Term Loan Facilities, respectively.
"Loan Documents" means this Agreement, the Notes, the Security
Instruments, the Facility Guaranties, the LC Account Agreement, the
Applications and Agreements for Letter of Credit, and all other
instruments and documents heretofore or hereafter executed or delivered
to or in favor of any Lender (including the Issuing Bank) or the Agent
in connection with the Loans made and transactions contemplated under
this Agreement, as the same may be amended, supplemented or replaced
from the time to time.
"Management Agreement" means that certain Management Agreement
dated as of July 6, 1999, as amended as of the date hereof, by and
between the Borrower, the Parent and KRG Capital Partners, LLC, as from
time to time amended or supplemented.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations, prospects or condition,
financial or otherwise, of the Borrower and its Subsidiaries, taken as
a whole, (ii) the ability of the Parent and the Borrower and its
Subsidiaries taken as a whole to pay or perform its respective
obligations, liabilities and indebtedness under the Loan Documents as
such payment or performance becomes due in accordance with the terms
thereof, or (iii) the rights, powers and remedies of the Agent or any
Lender under any Loan Document or the validity, legality or
enforceability thereof.
"Micro-Coax Obligations" means the obligations of UTI under
those certain leases related to three (3) locations in Berkshire,
England and one location in Lymerick, Pennsylvania, in an aggregate
present value amount of up to $3,500,000.
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"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage Support Documents" means for each Mortgaged Property
(i) the Title Policy pertaining thereto, (ii) as-built surveys, phase I
environmental assessments, flood hazard certifications and appraisals
prepared by recognized experts in their respective fields selected by
the Borrower and reasonably acceptable to the Agent and containing
results satisfactory to the Agent, (iii) as to Mortgaged Property
located in a flood hazard area, such flood hazard insurance as the
Agent may require, (iv) as to leasehold interests, such lessor
estoppel, waiver and consent certificates as the Agent may reasonably
require, (v) with respect to facilities leased or subleased to third
parties, such lessees' estoppel, waiver and consent certificates and
subordination, nondisturbance and attornment agreements as the Agent
may reasonably require, (vi) such owner's or lessee's affidavits as the
Agent may require, (vii) such opinions of local counsel with respect to
the Mortgages or leasehold mortgages, as applicable, as the Agent may
require, and (viii) such other documentation as the Agent may
reasonably require, in each case as shall be in form and substance
reasonably acceptable to the Agent.
"Mortgaged Property" means, collectively, (i) the real
property, leasehold interests, improvements, fixtures and other items
of real and personal property related thereto, including the proceeds
and products thereof, of the Borrower and its Domestic Subsidiaries
which are subject to a Mortgage on the Closing Date, and (ii)
thereafter, any of such property owned or acquired by the Borrower or
any Domestic Subsidiary, including any Subsidiary that is or is
required to become a Guarantor after the Closing Date pursuant to
Section 9.19.
"Mortgages" means, collectively, all mortgages (including
leasehold mortgages), deeds of trust and deeds to secure debt
substantially in the form of Exhibit M granting a Lien on Mortgaged
Property to the Agent for the benefit of the Lenders as collateral
security for the Obligations, and if applicable, the Guarantor's
obligations with respect thereto, as such documents may be amended,
supplemented or restated from time to time.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Net Proceeds" (a) from any public or private offering of any
equity security means cash proceeds received by the Parent, the
Borrower or any Subsidiary therefrom as and when received, net of all
legal, accounting, banking and underwriting fees and expenses,
commissions, discounts and other issuance expenses incurred in
connection therewith and all taxes required to be paid or accrued as a
consequence of such issuance; and (b) from any Asset Disposition means
cash payments received by the Parent, the Borrower or any Subsidiary
therefrom (including any cash payments received pursuant to any note or
other debt security received in connection with any Asset Disposition)
as and when received, net of (i) all legal fees and expenses and other
fees and expenses paid to third parties and incurred in connection
therewith, (ii) all taxes required to be paid or
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accrued as a consequence of such disposition, (iii) all amounts applied
to repayment of Indebtedness (other than the Obligations) secured by a
Lien on the asset or property disposed and (iv) all amounts reinvested
by the Parent, the Borrower or a Subsidiary substantially
contemporaneously with such disposition (or to be invested within 90
days pursuant to an investment plan approved by the Agent) in
replacement assets of substantially equal or greater value and utility;
"Note Holders" means DLJ and any other holder of the notes
issue pursuant to the Borrower Subordinated Debt Documents or the
Parent Debt Documents.
"Notes" means, collectively, the Revolving Notes, the Term
Notes and the Swing Line Note.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, (iii)
all liabilities of Borrower to any Lender (or any affiliate of any
Lender) which arise under a Swap Agreement, and (iv) the payment and
performance of all other obligations, liabilities and Indebtedness of
the Borrower to the Lenders (including the Issuing Bank), the Agent or
BAS hereunder, under any one or more of the other Loan Documents or
with respect to the Loans.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required shareholder, member or partner action),
or other similar official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, all Revolving
Credit Outstandings, Term Loan Outstandings, Letter of Credit
Outstandings and Swing Line Outstandings and on such date.
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"Parent" means MDMI Holdings, Inc., a Colorado corporation,
owner of all of the issued and outstanding capital stock of the
Borrower.
"Parent Guaranty" means that certain Guaranty Agreement dated
as of the date hereof from the Parent in favor of the Agent for the
benefit of the Agent and the Lenders, as from time to time amended,
supplemented or replaced.
"Parent Pledge Agreement" means that certain Securities Pledge
Agreement dated as of the date hereof pledging to the Agent for the
benefit of the Agent and the Lenders all of the shares of capital stock
of the Borrower, as from time to time amended, supplemented or
replaced.
"Parent Debt" means the Indebtedness of the Parent to the Note
Holders in the principal amount of $21,500,000 plus any amounts issued
as paid-kind-interest in the form of additional notes incurred pursuant
to the Parent Debt Documents.
"Parent Debt Documents" means that certain Securities Purchase
Agreement dated as of the date hereof by and among the Parent, the
Borrower, the Guarantors named therein and the Purchasers named therein
as it relates to the Senior Notes due 2008 (or any notes issued
pursuant to the Indenture attached as Exhibit A to such Notes), the
Securities Purchase Agreement (as defined in the Indenture), and the
notes and other material agreements related thereto, all in form and
substance acceptable to the Agent, pursuant to which DLJ has purchased
those certain Senior Notes due 2008.
"Participation" means, (i) with respect to any Lender (other
than the Issuing Bank) and a Letter of Credit, the extension of credit
represented by the participation of such Lender hereunder in the
liability of the Issuing Bank in respect of a Letter of Credit issued
by the Issuing Bank in accordance with the terms hereof, and (ii) with
respect to any Lender (other than the Swing Line Lender) and a Swing
Line Loan, the extension of credit represented by the participation of
such Lender hereunder in the liability of the Swing Line Lender in
respect of a Swing Line Loan made by the Swing Line Lender in
accordance with the terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions of Title IV of ERISA or Section 412
of the Code and which (i) is maintained for employees of the Borrower
or any of its ERISA Affiliates or is assumed by the Borrower or any of
its ERISA Affiliates in connection with any Acquisition or (ii) has at
any time been maintained for the employees of the Borrower or any
current or former ERISA Affiliate.
"Permitted Liens" has the meaning given to such term in
Section 10.4.
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"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pledge Agreement" means, collectively (or individually as the
context may indicate), (i) that certain Securities Pledge Agreement
dated as of the date hereof between the Borrower and the Agent for the
benefit of the Agent and the Lenders, (ii) that certain Securities
Pledge Agreement dated as of the date hereof among UTI Acquisition
Corp., UTI Corporation and the Agent for the benefit of the Lenders,
(iii) the Parent Pledge Agreement, (iv) any additional Securities
Pledge Agreement delivered to the Agent pursuant to Section 5.1 and
9.19, and (v) with respect to any Subsidiary Securities issued by a
Direct Foreign Subsidiary, any additional or substitute charge,
agreement, document, instrument or conveyance, in form and substance
acceptable to the Agent, conferring under applicable foreign law upon
the Agent for the benefit of the Agent and the Lenders a Lien upon such
Subsidiary Securities as are owned by the Borrower or any Domestic
Subsidiary, in each case as hereafter amended, supplemented (including
by Pledge Agreement Supplement) or amended and restated from time to
time.
"Pledge Agreement Supplement" means, with respect to each
Pledge Agreement, the Pledge Agreement Supplement in the form affixed
as an Exhibit to such Pledge Agreement.
"Pledged Interests" means the Borrower's capital stock and the
Subsidiary Securities required to be pledged as Collateral pursuant to
Article V or the terms of any Pledge Agreement.
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"Pricing Grid" means:
Applicable
Applicable Applicable Margin for
Margin for Margin for Base Rate
Eurodollar Eurodollar Loans that
Rate Loans Rate are Applicable
that are Loans that Revolving Margin for
Revolving are Loans or Base Rate Applicable
Consolidated Loans, or Segments Segments Loans that are Fee for Applicable
Leverage Segments of of Term of Term Segments of Letters of Commitment
Tier Ratio Term Loan A Loan B Loan A Term Loan B Credit Fee
---- ------------- ----------- ---------- ---------- -------------- ---------- ----------
I Less than 2.75% 3.50% 1.50% 2.25% 2.75% .25%
3.50 to 1.00
---- ------------- ---- ---- ---- ---- ---- ---
II Greater than 3.00% 3.75% 1.75% 2.50% 3.00% .50%
or equal to
3.50 to 1.00
and less than
4.00 to 1.00
---- ------------- ---- ---- ---- ---- ---- ---
III Greater than 3.25% 3.75% 2.00% 2.50% 3.25% .50%
or equal to
4.00 to 1.00
and less than
4.50 to 1.00
---- ------------- ---- ---- ---- ---- ---- ---
IV Greater than 3.50% 3.75% 2.25% 2.50% 3.50% .50%
or equal to
4.50 to 1.00
---- ------------- ---- ---- ---- ---- ---- ---
The Applicable Margin, Applicable Letter of Credit Fee and Applicable
Commitment Fee shall be established at the end of each fiscal quarter
of the Borrower (each, a "Determination Date"). Any change in the
Applicable Margin, Applicable Letter of Credit Fee or Applicable
Commitment Fee following each Determination Date shall be determined
based upon the computations set forth in the certificate furnished to
the Agent pursuant to Section 9.1(a)(ii) and Section 9.1(b)(ii),
subject to review and approval of such computations by the Agent, and
shall be effective commencing on the fifth Business Day following the
date such certificate is received until the fifth Business Day
following the date on which a new certificate is delivered or is
required to be delivered, whichever shall first occur; provided
however, if the Borrower shall fail to deliver any such certificate
within the time period required by Section 9.1, then the Applicable
Margin, Applicable Letter of Credit Fee and Applicable Commitment Fee
shall be Tier IV from the date such certificate was due until the
appropriate certificate is so delivered. Subject to the provisions of
the immediately preceding sentence, from the Closing Date to the fifth
Business Day following the date of receipt of the December 31, 2000
financial statements of the Borrower, the Applicable Margin and
Applicable Commitment Fee shall be Tier III.
"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.
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"Principal Office" means the principal office of Bank of
America, presently located at 000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx, XX0
000-00-00, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Agency Services,
or such other office and address as the Agent may from time to time
designate.
"Rate Hedging Obligations" means, without duplication, any and
all obligations of the Borrower or any Subsidiary, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements; (ii) all other
"derivative instruments" as defined in FASB 133 and which are subject
to the reporting requirements of FASB 133; and (iii) any and all
cancellations, buybacks, reversals, terminations or assignments of any
of the foregoing. For purposes of any computation hereunder, each Rate
Hedging Obligation shall be valued at the Rate Hedge Value thereof.
"Rate Hedge Value" means, with respect to each contract,
instrument or other arrangement creating a Rate Hedging Obligation, the
net obligations of the Borrower or any Subsidiary thereunder equal to
the termination value thereof as determined in accordance with its
provisions (if such Rate Hedging Obligation has been terminated) or the
xxxx to market value thereof as determined on the basis of available
quotations from any recognized dealer in, or from Bloomberg or other
similar service providing market quotations for, the applicable Rate
Hedging Obligation (if such Rate Hedging Obligation has not been
terminated).
"Registrar" means, with respect to any Subsidiary Securities,
any Person authorized or obligated to maintain records of the
registration of ownership or transfer of ownership of interests in such
Subsidiary Securities, and in the event no such Person shall have been
expressly designated by the related Subsidiary, shall mean (i) as to
any corporation or limited liability company, its Secretary (or
comparable official), and (ii) as to any partnership, its general
partner (or managing general partner if one shall have been appointed).
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Issuing Bank and the Lenders to the extent of their
respective Participations (including by the receipt by the Issuing Bank
of proceeds of Loans pursuant to Section 2.2(c)(iii)) for amounts
theretofore paid by the Issuing Bank pursuant to a drawing under such
Letter of Credit.
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"Related Transaction Documents" means the Loan Documents, the
UTI Acquisition Documents, the Borrower Subordinated Debt Documents and
the Parent Debt Documents.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating more than 50% of
the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "Credit Exposure"
of each Lender shall be equal at all times (a) other than following the
occurrence and during the continuance of an Event of Default, to the
sum of its Revolving Credit Commitment and Term Loan Outstandings, and
(b) following the occurrence and during the continuance of an Event of
Default, to the sum of (i) the amount of such Lender's Applicable
Commitment Percentage of Term Loan Outstandings plus (ii) the aggregate
principal amount of such Lender's Applicable Commitment Percentage of
Revolving Credit Outstandings plus (iii) the amount of such Lender's
Applicable Commitment Percentage of Letter of Credit Outstandings and
Swing Line Outstandings; provided that, for the purpose of this
definition only, (A) if any Lender shall have failed to fund its
Applicable Commitment Percentage of any Advance, then the Term Loan
Commitments or Revolving Credit Commitment, as applicable, of such
Lender shall be deemed reduced by the amount it so failed to fund for
so long as such failure shall continue and such Lender's Credit
Exposure attributable to such failure shall be deemed held by any
Lender making more than its Applicable Commitment Percentage of such
Advance to the extent it covers such failure, (B) if any Lender shall
have failed to pay to the Issuing Bank upon demand its Applicable
Commitment Percentage of any drawing under any Letter of Credit
resulting in an outstanding Reimbursement Obligation (whether by
funding its Participation therein or otherwise), such Lender's Credit
Exposure attributable to all Letter of Credit Outstandings shall be
deemed to be held by the Issuing Bank until such Lender shall pay such
deficiency amount to the Issuing Bank together with interest thereon as
provided in Section 4.9 and (C) if any Lender shall have failed to pay
to the Swing Line Lender on demand its Applicable Commitment Percentage
of any Swing Line Loan (whether by funding its Participation therein or
otherwise), such Lender's Credit Exposure attributable to all Swing
Line Outstandings shall be deemed to be held by the Swing Line Lender
until such Lender shall pay such deficiency amount to the Swing Line
Lender together with interest thereon as provided in Section 4.9.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate is to be determined, or (ii) any category of extensions
of credit or other
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assets which include Eurodollar Rate Loans. The Eurodollar Rate shall
be adjusted automatically on and as of the effective date of any change
in the Reserve Requirement.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock or securities of Borrower or any Subsidiary Securities of its
Subsidiaries (other than those payable or distributable solely to the
Borrower or a Subsidiary of the Borrower) now or hereafter outstanding,
except a dividend payable solely in shares of a class of stock or
securities to the holders of that class; (b) any redemption,
conversion, exchange, retirement or similar payment, purchase or other
acquisition for value, direct or indirect, of any shares of any class
of stock or securities of Borrower or any Subsidiary Securities of its
Subsidiaries (other than those payable or distributable solely to the
Borrower) now or hereafter outstanding; (c) any payment made to retire,
or to obtain the surrender of, any outstanding warrants, options or
other rights to acquire shares of any class of stock of Borrower or any
Subsidiary Securities of its Subsidiaries now or hereafter outstanding;
(d) any issuance and sale of Subsidiary Securities of any Subsidiary of
the Borrower (or any option, warrant or right to acquire such stock)
other than to the Borrower; and (e) after the occurrence and during the
continuation of a Default or Event of Default, any payment of
management fees to KRG Capital Group, whether pursuant to the
Management Agreement or otherwise.
"Revolving Credit Commitment" means, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the
Borrower up to an aggregate principal amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Revolving Credit Commitment.
"Revolving Credit Facility" means the facility described in
Section 2.2 hereof providing for Loans to the Borrower by the Lenders
in the aggregate principal amount of the Total Revolving Credit
Commitment.
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans
then outstanding.
"Revolving Credit Termination Date" means (i) the Stated
Termination Date or (ii) such earlier date of termination of Lenders'
obligations pursuant to Section 11.1 upon the occurrence of an Event of
Default, or (iii) such date as the Borrower may voluntarily and
permanently terminate the Revolving Credit Facility by payment in full
of all Revolving Credit Outstandings, Swing Line Outstandings and
Letter of Credit Outstandings and cancellation of all Letters of
Credit, together with all accrued and unpaid interest thereon.
"Revolving Loan" means any borrowing pursuant to an Advance
under the Revolving Credit Facility in accordance with Section 2.2.
"Revolving Notes" means, collectively, the promissory notes of
the Borrower evidencing Revolving Loans executed and delivered to the
Lenders as provided in
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Section 2.5 substantially in the form of Exhibit F-1, with appropriate
insertions as to amounts, dates and names of Lenders.
"S&P" means Standard & Poor's Ratings Group, a division of the
XxXxxx-Xxxx Companies, Inc.
"Security Agreement" means, collectively (or individually as
the context may indicate), (i) the Security Agreement dated as of the
date hereof by the Parent, the Borrower and its Domestic Subsidiaries
(other than the FSC Subsidiary) to the Agent, and (ii) any additional
Security Agreement delivered to the Agent pursuant to Section 9.19, as
hereafter modified, amended or supplemented from time to time.
"Security Instruments" means, collectively, the Pledge
Agreement, the Security Agreement, the IP Security Agreement, the
Mortgages, the Mortgage Support Documents and all other agreements
(including control agreements), instruments and other documents,
whether now existing or hereafter in effect, pursuant to which the
Borrower or any Subsidiary shall grant or convey to the Agent or the
Lenders a Lien in, or any other Person shall acknowledge any such Lien
in, property as security for all or any portion of the Obligations, as
any of them may be amended, modified or supplemented from time to time.
"Segment" means a portion of either of the Term Loans (or all
thereof) with respect to which a particular interest rate is (or is
proposed to be) applicable.
"Seller" means Xxxxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxxxxx,
Xxxxxx X. Xxxxxxxxxx, Xx., Xxxxxx X. Xxxxxxxxxx, III, Xxxxx X.
Xxxxxxxxxx, A. Xxxxx Xxxxxxxxxx, Xxxxx X. Xxxxxxxxxx, Xxxxx Xxxxx,
Xxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxxx X.
Xxxxxxx, Xxxxxxx X. Xxxxxxxx, owners of the capital stock of UTI.
"Solvent" means, when used with respect to any Person, that at
the time of determination:
(a) the fair value of its assets (both at fair
valuation and at present fair saleable value on an orderly
basis) is in excess of the total amount of its liabilities,
including Contingent Obligations; and
(b) it is then able and expects to be able to pay its
debts as they mature; and
(c) it has capital sufficient to carry on its
business as conducted and as proposed to be conducted.
"Spot Rate of Exchange" means, in determining the foreign
currency equivalent amount as of any date, the spot exchange rate
determined by the Agent in accordance with its usual procedures for the
purchase by the Agent of such foreign currency with Dollars at
approximately 10:00 A.M. on such date.
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"Stated Termination Date" means June 30, 2005 or such later
date as the parties may agree pursuant to Section 2.2(f).
"Subordinated Debt" means the Borrower Subordinated Debt and
the Parent Debt.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding Voting Securities or more than 50% of
all equity interests is owned directly or indirectly by the Borrower.
"Subsidiary Securities" means the shares of capital stock or
the other equity interests issued by or equity participations in any
Subsidiary, whether or not constituting a "security" under Article 8 of
the Uniform Commercial Code as in effect in any jurisdiction.
"Swap Agreement" means one or more agreements between the
Borrower and any Person with respect to Indebtedness evidenced by any
or all of the Notes, on terms mutually acceptable to Borrower and such
Person and approved by the Required Lenders, which agreements create
Rate Hedging Obligations; provided, however, that no such approval of
the Lenders shall be required to the extent such agreements are entered
into between the Borrower and any Lender or any affiliate of any
Lender.
"Swing Line" means the revolving line of credit established by
the Swing Line Lender in favor of the Borrower pursuant to Section 2.6.
"Swing Line Lender" means Bank of America as provider of Swing
Line Loans under Section 2.6.
"Swing Line Loans" means loans made by the Swing Line Lender
to the Borrower pursuant to Section 2.6.
"Swing Line Note" means the promissory note of the Borrower
evidencing the Swing Line executed and delivered to the Swing Line
Lender as provided in Section 2.5 substantially in the form of Exhibit
F-4.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all Swing Line Loans
then outstanding.
"Syndication Period" means the period commencing on the
Closing Date and ending on the earlier of (i) the date upon which the
Agent shall have determined that it has successfully completed
syndication of the Senior Credit Facilities and (ii) the 180th day
after the Closing Date.
"Synthetic Lease Obligations" means all monetary obligations
of a lessee under any tax retention or other synthetic leases which is
treated as an operating lease under GAAP but the liabilities under
which are or would be characterized as indebtedness of
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such Person for tax purposes or upon the insolvency of such Person. The
amount of Synthetic Lease Obligations in respect of any synthetic lease
at any date of determination thereof shall be equal to the aggregate
purchase price of any property subject to such lease less the aggregate
amount of payments of rent theretofore made which reduce the lessee's
obligations under such synthetic lease and which are not the financial
equivalent.
"Term Loans" means each of the Term Loan A and Term Loan B, as
the case may be.
"Term Loan A" means the loan made pursuant to the Term Loan A
Facility.
"Term Loan A Commitment" means, with respect to each Lender,
the obligation of a Term Loan A Lender to make available the Term Loan
A to the Borrower in a principal amount equal to such Term Loan A
Lender's Applicable Commitment Percentage of the Total Term Loan A
Commitment, as set forth in Exhibit A hereto.
"Term Loan A Facility" means the facility described in Section
2.1 hereof providing for a Term Loan to the Borrower by the Lenders in
the original principal amount of $45,000,000.
"Term Loan A Maturity Date" means June 30, 2005.
"Term Loan A Outstandings" means, as of any date of
calculation thereof, the principal amount of Term Loan A then
outstanding.
"Term Loan A Termination Date" means (i) the Term Loan A
Maturity Date or (ii) such earlier date of termination of a Term Loan A
Lenders' obligations pursuant to Section 11.1 hereof upon the
occurrence of an Event of Default or (iii) such date as the Borrower
may voluntarily and permanently terminate the applicable Term Loan A
Facility by payment in full of all Obligations incurred in connection
with such Term Loan A.
"Term Loan B" means the loan made pursuant to the Term Loan B
Facility.
"Term Loan B Commitment" means, with respect to each Lender,
the obligation of a Term Loan B Lender to make available the Term Loan
B to the Borrower in a principal amount equal to such Term Loan B
Lender's Applicable Commitment Percentage of the Total Term Loan B
Commitment, as set forth in Exhibit A hereto.
"Term Loan B Facility" means the facility described in Section
2.1 hereof providing for the Term Loan to the Borrower in the original
principal amount of $45,000,000.
"Term Loan B Maturity Date" means February 15, 2006.
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"Term Loan B Outstandings" means, as of any date of
calculation thereof, the principal amount of Term Loan B then
outstanding.
"Term Loan B Termination Date" means (i) the Term Loan B
Maturity Date or (ii) such earlier date of termination of a Term Loan B
Lender's obligations pursuant to Section 11.1 hereof upon the
occurrence of an Event of Default or (iii) such date as the Borrower
may voluntarily and permanently terminate the applicable Term Loan B
Facility by payment in full of all Obligations incurred in connection
with such Term Loan B.
"Term Loan Commitments" means each lender's Term Loan A
Commitment and Term Loan B Commitment.
"Term Loan Facilities" means the Term Loan A Facility and the
Term Loan B Facility.
"Term Loan Outstandings" means the sum of all Term Loan A
Outstandings and all Term Loan B Outstandings.
"Term Loan Termination Date" means the date upon which each of
the Term Loan A Termination Date and the Term Loan B Termination shall
have occurred.
"Term Notes" means, collectively, the Term A Notes and the
Term B Notes.
"Term A Notes" means, collectively, the promissory notes of
the Borrower evidencing Term Loan A executed and delivered to the Term
Loan A Lenders as provided in Section 2.5 hereof substantially in the
form of Exhibit F-2 hereto, with appropriate insertions as to amounts,
dates and names of Term Loan A Lenders.
"Term B Notes" means, collectively, the promissory notes of
the Borrower evidencing Term Loan B executed and delivered to the Term
Loan B Lenders as provided in Section 2.5 hereof substantially in the
form of Exhibit F-3 hereto, with appropriate insertions as to amounts,
dates and names of Term Loan B Lenders.
"Termination Event" means: (i) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(ii) the withdrawal of the Borrower or any ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such
under Section 4062(e) of ERISA; or (iii) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC; or (v) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA
for the termination of, or the appointment of a trustee to administer,
any Pension Plan; or (vi) the partial or complete withdrawal of the
Borrower or any ERISA Affiliate from a Multiemployer Plan; or (vii) the
imposition of a
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Xxxx pursuant to Section 412 of the Code or Section 302 of ERISA; or
(viii) any event or condition which results in the reorganization or
insolvency of a Multiemployer Plan under Section 4241 or Section 4245
of ERISA, respectively; or (ix) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or
the institution by the PBGC of proceedings to terminate a Multiemployer
Plan under Section 4042 of ERISA; or (x) any event or condition with
respect to any Employee Benefit Plan which is regulated by any Foreign
Benefit Law that results in the termination of such Employee Benefit
Plan or the revocation of such Employee Benefit Plan's authority to
operate under the applicable Foreign Benefit Law.
"Title Policy" means, with respect to each Mortgaged Property,
the mortgagee title insurance policy (together with such endorsements
as the Agent may reasonably require) issued to the Agent in respect of
such Mortgaged Property by an insurer selected by the Borrower and
reasonably acceptable to the Agent, insuring (in an amount satisfactory
to the Agent) the Lien of the Agent for the benefit of the Lenders on
such Mortgaged Property to be duly perfected and of first priority,
subject only to such exceptions as shall be acceptable to the Agent.
"Total Letter of Credit Commitment" means an amount not to
exceed $5,000,000.
"Total Revolving Credit Commitment" means a principal amount
equal to $25,000,000, as reduced from time to time in accordance with
Section 2.2(e).
"Total Term Loan A Commitment" means a principal amount equal
to $45,000,000.
"Total Term Loan B Commitment" means a principal amount equal
to $45,000,000.
"Total Term Loan Commitment" means the Total Term Loan A
Commitment and the Total Term Loan B Commitment.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan or
a Eurodollar Rate Loan).
"UCC" has the meaning given to such term in Section 1.2(b).
"UTI Acquisition" means the acquisition of all of the capital
stock of UTI by the UTI Acquisition Corp. pursuant to the UTI
Acquisition Documents.
"UTI Acquisition Corp." means UTI Acquisition Corp., a
Colorado corporation and wholly owned subsidiary of the Borrower.
"UTI Acquisition Documents" means that certain Share Purchase
Agreement dated as of the date hereof by and between the UTI
Acquisition Corp., UTI and the
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Seller, together with other principal documents evidencing the UTI
Acquisition, all in form and substance acceptable to the Agent.
"UTI Indebtedness" means that certain indebtedness to the
Persons and in the amounts set forth on Schedule 1.2 to be paid on the
Closing Date with proceeds of the Loans.
"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
1.2 Rules of Interpretation.
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Articles 1, 8 or 9 of the New York
Uniform Commercial Code (the "UCC") shall have the meaning given
therein unless otherwise defined herein, except to the extent that the
Uniform Commercial Code of another jurisdiction is controlling, in
which case such terms shall have the meaning given in the Uniform
Commercial Code of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references in any
Loan Document to articles, sections, paragraphs, clauses, annexes,
appendices, exhibits and schedules are references to articles,
sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules in or to such Loan Document.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the masculine gender shall include
reference to the feminine or neuter gender, and vice versa, as the
context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder," "hereto," "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
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(g) References to "including" means including without limiting
the generality of any description preceding such term, and such term
shall not limit a general statement to matters similar to those
specifically mentioned.
(h) Except as otherwise expressly provided, all dates and
times of day specified herein shall refer to such dates and times at
Charlotte, North Carolina.
(i) Whenever interest rates or fees are established in whole
or in part by reference to a numerical percentage expressed as "___%,"
such arithmetic expression shall be interpreted in accordance with the
convention that 1% = 100 basis points.
(j) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
(k) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(l) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
1.3 Accounting for Acquisitions.
With respect to any Acquisition consummated on or after the Closing
Date and prior to the Facility Termination Date, the following shall apply:
(a) With respect to the UTI Acquisition, for each of the four
Four-Quarter Periods ending next following the date of the Acquisition,
Consolidated EBITDA of the Borrower shall be deemed to refer to
Adjusted Consolidated EBITDA for all purposes hereunder;
(b) As to each Acquisition that is accounted for as a
"purchase," for each of the four Four-Quarter Periods ending next
following the date of such Acquisition, Consolidated EBITDA shall
include the results of operations of the Person or assets so acquired
on a historical pro forma basis as if such Acquisition had been
consummated as a "pooling of interests," and which amounts may include
such adjustments as are permitted under Regulation S-X of the
Securities and Exchange Commission or reasonably satisfactory to the
Agent;
(c) For each of the four Four-Quarter Periods ending next
following the date of each Acquisition, Consolidated Fixed Charges
shall include the results of operations of
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the Person or assets so acquired, which amounts shall be determined on
a historical pro forma basis as if such Acquisition had been
consummated as a "pooling of interests;" provided, however,
Consolidated Interest Expense shall be adjusted on a historical pro
forma basis to (i) eliminate interest expense accrued during such
period on any Indebtedness repaid in connection with such Acquisition
and (ii) include interest expense on any Indebtedness (including
Indebtedness hereunder) incurred, acquired or assumed in connection
with such Acquisition ("Incremental Debt") calculated (x) as if all
such Incremental Debt had been incurred as of the first day of such
Four-Quarter Period and (y) at the following interest rates: (I) for
all periods subsequent to the date of the Acquisition and for
Incremental Debt assumed or acquired in the Acquisition and in effect
prior to the date of Acquisition, at the actual rates of interest
applicable thereto, and (II) for all periods prior to the actual
incurrence of such Incremental Debt, equal to the average daily rate of
interest actually applicable to such Incremental Debt hereunder or
under other financing documents applicable thereto as at the end of
each affected Four-Quarter Period, as the case may be.
1.4 Accounting for Derivatives. In making any computation or
determining any amount by reference to any item appearing on the balance sheet
or other financial statement of the Borrower and its Subsidiaries, all
adjustments to such computation or amount resulting from the application of FASB
133 shall be disregarded.
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ARTICLE II
The Credit Facilities
2.1 Term Loans.
(a) Funding. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make an Advance of the Term
Loan A and Term Loan B to the Borrower on the Closing Date on a pro
rata basis determined by its Applicable Commitment Percentage up to the
Term Loan A Commitment and Term Loan B Commitment of such Lender. The
principal amount of each Segment of the Term Loans outstanding
hereunder from time to time shall bear interest and the Term Loans
shall be repayable as herein provided. No amount of the Term Loans
repaid or prepaid by the Borrower may be reborrowed hereunder, and no
subsequent Advances of Term Loans amounts shall be made by any Lender
after the initial such Advance.
(b) Term Loan Advance. Not later than 1:00 P.M., on the
Closing Date, each Lender shall, pursuant to the terms and subject to
the conditions of this Agreement, make the amount of the Term Loan A
and Term Loan B Advance to be made by it on such day available by wire
transfer to the Agent in the amount of its Term Loan A Commitment and
Term Loan B Commitment. Such wire transfer shall be directed to the
Agent at the Principal Office and shall be in the form of immediately
available, freely transferable Dollars. The amount so received by the
Agent shall, subject to the terms and conditions of this Agreement, be
made available to the Borrower by delivery of the proceeds thereof to
the Borrower's Account or otherwise as shall be directed by the
Authorized Representative and reasonably acceptable to the Agent.
(c) Payment of Principal.
(i) The principal amount of Term Loan A shall be
repaid in twenty (20) consecutive quarterly installments on
the dates and in the amounts set forth below:
Date Amount
------------------ -----------
September 30, 2000 $ 562,500
December 31, 2000 $ 562,500
March 31, 2001 $ 562,500
June 30, 2001 $ 562,500
September 30, 2001 $1,125,000
December 31, 2001 $1,125,000
March 31, 2002 $1,125,000
June 30, 2002 $1,125,000
September 30, 2002 $2,531,250
December 31, 2002 $2,531,250
March 31, 2003 $2,531,250
June 30, 2003 $2,531,250
September 30, 2003 $2,953,125
December 31, 2003 $2,953,125
March 31, 2004 $2,953,125
June 30, 2004 $2,953,125
September 30, 2004 $2,953,125
December 31, 2004 $2,953,125
March 31, 2005 $5,203,125
June 30, 2005 All remaining
principal outstanding
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(ii) The principal amount of Term Loan B shall be
repaid in twenty-three (23) installments consisting of
twenty-two (22) consecutive quarterly installments in the
amount of $112,500 commencing September 30, 2000 and
continuing on the last day of each December, March, June and
September thereafter, with a final twenty third (23)
installment in the amount of all remaining principal
outstanding on February 15, 2006.
(iii) Notwithstanding the foregoing, the entire
amount of Term Loan A Outstandings shall be due and payable in
full on the Term Loan A Termination Date and the entire
principal amount of Term Loan B shall be due and payable in
full on the Term Loan B Termination Date.
(d) Optional Prepayments. The Borrower may prepay the Term
Loans in whole or in part from time to time on any Business Day,
without penalty or premium, upon at least three (3) Business Days'
telephonic notice from an Authorized Representative (effective upon
receipt) to the Agent prior to 10:30 A.M., which notice shall be
irrevocable. The Authorized Representative shall provide the Agent
written confirmation of each such telephonic notice but failure to
provide such confirmation shall not affect the validity of such
telephonic notice. Any prepayment, whether of a Base Rate Segment or a
Eurodollar Rate Segment, shall be made at a prepayment price equal to
(i) the amount of principal to be prepaid, plus (ii) all accrued and
unpaid interest on the amount so prepaid, to the date of prepayment.
All prepayments under this Section 2.1(d) shall be made in the minimum
principal amount of $1,000,000 or any integral multiple of $250,000 in
excess thereof (or in the entire remaining principal balance of the
applicable Term Loan), and all such prepayments of principal shall be
applied to installments of principal in inverse order of their
maturities.
(e) Mandatory Prepayments. In addition to the required
payments of principal of the Term Loan set forth in Section 2.1(c) and
any optional payments of principal of the Term Loan effected under
Section 2.1(d), the Borrower shall make the following required
prepayments of the Term Loan, each such payment to be made to the Agent
for the benefit of the Lenders within the time period specified below:
(i) The Borrower shall make, or shall cause each
applicable Subsidiary to make, a prepayment from the proceeds
of (A) each private or public offering of equity securities of
the Borrower or any Subsidiary (other than equity
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issued in connection with any Acquisition permitted hereunder
or any Earnout Equity Contribution hereunder and equity
securities issued to the Borrower or another Subsidiary) in an
amount equal to one hundred percent (100%) of the Net Proceeds
of each issuance of equity securities of the Borrower or any
Subsidiary (including without limitation any security not
constituting Indebtedness exchangeable, exercisable or
convertible for or into equity securities), and (B) each Asset
Disposition permitted under Section 10.6(g) in an amount equal
to one hundred percent (100%) of the Net Proceeds of such
Asset Disposition, each such prepayment to be made within ten
(10) Business Days of receipt of such proceeds and upon not
less than five (5) Business Days' written notice to the Agent,
which notice shall include a certificate of an Authorized
Representative setting forth in reasonable detail the
calculations utilized in computing the amount of such
prepayment;
(ii) The Borrower shall make, or shall cause each
applicable Subsidiary to make, an annual prepayment in an
amount equal to fifty percent (50%) of Excess Cash Flow as at
the end of each Fiscal Year of Borrower, each such prepayment
to be made on the date financial statements of the Borrower
and its Subsidiaries for such Fiscal Year are required to be
delivered (or if earlier, the date such financial statements
are delivered) pursuant to Section 9.1, which payment shall be
accompanied by a certificate of an Authorized Representative
(which may be incorporated within the certificate regarding
compliance with certain covenants otherwise required to be
delivered under Section 9.1) setting forth in reasonable
detail the calculations utilized in computing Excess Cash Flow
and the amount of such prepayment.
All mandatory prepayments made pursuant to this Section 2.1(e) shall be
applied pro rata to the Term Loans and ratably to all installments of
principal (as adjusted to give effect to any prior payments or
prepayments of principal). If all Term Loan Outstandings have been paid
in full, the mandatory prepayments required hereunder shall be applied
to reduce Revolving Credit Outstandings (but not the Total Revolving
Credit Commitment), if any.
2.2 Revolving Loans.
(a) Commitment. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Advances to the
Borrower under the Revolving Credit Facility from time to time from the
Closing Date until the Revolving Credit Termination Date on a pro rata
basis as to the total borrowing requested by the Borrower on any day
determined by such Lender's Applicable Commitment Percentage up to but
not exceeding the Revolving Credit Commitment of such Lender, provided,
however, that the Lenders will not be required and shall have no
obligation to make any such Advance (i) so long as a Default or an
Event of Default has occurred and is continuing or (ii) if the Agent
has accelerated the maturity of any of the Notes as a result of an
Event of Default; provided further, however, that immediately after
giving effect to each such Advance, the amount of Revolving Credit
Outstandings plus Letter of Credit Outstandings plus Swing Line
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Outstandings shall not exceed the lesser of (i) the Total Revolving
Credit Commitment and (ii) the Borrowing Base. Within such limits and
subject to the other terms and conditions of this Agreement, the
Borrower may borrow, repay and reborrow under the Revolving Credit
Facility on a Business Day from the Closing Date until, but (as to
borrowings and reborrowings) not including, the Revolving Credit
Termination Date.
(b) Amounts. The amount of Revolving Credit Outstandings plus
Letter of Credit Outstandings plus Swing Line Outstandings shall not
exceed at any time the lesser of (i) the Total Revolving Credit
Commitment and (ii) the Borrowing Base, and, in the event there shall
be outstanding any such excess, the Borrower shall immediately make
such payments and prepayments as shall be necessary to comply with this
restriction. Each Advance under the Revolving Credit Facility, other
than Base Rate Refunding Loans, shall be in an amount of at least
$500,000, and, if greater than $500,000, an integral multiple of
$250,000.
(c) Advances.
(i) An Authorized Representative shall give the Agent
(1) irrevocable telephonic notice of each Eurodollar Rate Loan
(whether representing an additional borrowing or the
Continuation of a borrowing hereunder or the Conversion of a
borrowing hereunder from a Base Rate Loan to a Eurodollar Rate
Loan) prior to 10:30 A.M. on a day at least three (3) Business
Days' prior to the date of such proposed Eurodollar Rate Loan
and (2) irrevocable telephonic notice of each Base Rate Loan
(other than Base Rate Refunding Loans to the extent the same
are effected without notice pursuant to Section 2.2(c)(iii)
and whether representing an additional borrowing hereunder or
the Conversion of borrowing hereunder from Eurodollar Rate
Loans to Base Rate Loans) prior to 10:30 A.M. on the day of
such proposed Revolving Loan. Each such notice shall be
effective upon receipt by the Agent, shall specify the amount
of the borrowing, the type of Revolving Loan (Base Rate or
Eurodollar Rate), the date of borrowing and, if a Eurodollar
Rate Loan, the Interest Period to be used in the computation
of interest. The Authorized Representative shall provide the
Agent written confirmation of each such telephonic notice in
the form of a Borrowing Notice or Interest Rate Selection
Notice (as applicable) with appropriate insertions but failure
to provide such confirmation shall not affect the validity of
such telephonic notice. Notice of receipt of such Borrowing
Notice or Interest Rate Selection Notice, as the case may be,
together with the amount of each Lender's portion of an
Advance requested thereunder, shall be provided by the Agent
to each Lender by telefacsimile transmission with reasonable
promptness, but (provided the Agent shall have received such
notice by 10:30 A.M.) not later than 1:00 P.M. on the same day
as the Agent's receipt of such notice.
(ii) Not later than 2:00 P.M. on the date specified
for each borrowing under this Section 2.2, each Lender shall,
pursuant to the terms and subject to the conditions of this
Agreement, make the amount of the Advance or Advances to be
made by it on such day available by wire transfer to the Agent
in the amount of its
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pro rata share, determined according to such Lender's
Applicable Commitment Percentage of the Revolving Loan or
Revolving Loans to be made on such day. Such wire transfer
shall be directed to the Agent at the Principal Office and
shall be in the form of Dollars constituting immediately
available funds. The amount so received by the Agent shall,
subject to the terms and conditions of this Agreement, be made
available to the Borrower by delivery of the proceeds thereof
to the Borrower's Account or otherwise as shall be directed in
the applicable Borrowing Notice by the Authorized
Representative and reasonably acceptable to the Agent.
(iii) Notwithstanding the foregoing, if a drawing is
made under any Letter of Credit, such drawing is honored by
the Issuing Bank, and the Borrower shall not immediately fully
reimburse the Issuing Bank in respect of such drawing from
other funds available to the Borrower, (A) provided that the
conditions to making a Revolving Loan as herein provided shall
then be satisfied, the Reimbursement Obligation arising from
such drawing shall be paid to the Issuing Bank by the Agent
without the requirement of notice to or from the Borrower from
immediately available funds which shall be advanced as a Base
Rate Refunding Loan to the Agent at its Principal Office by
each Lender under the Revolving Credit Facility in an amount
equal to such Lender's Applicable Commitment Percentage of
such Reimbursement Obligation, and (B) if the conditions to
making a Revolving Loan as herein provided shall not then be
satisfied, each of the Lenders shall fund by payment to the
Agent (for the benefit of the Issuing Bank) at its Principal
Office in immediately available funds the purchase from the
Issuing Bank of their respective Participations in the related
Reimbursement Obligation based on their respective Applicable
Commitment Percentages of the Total Letter of Credit
Commitment. If a drawing is presented under any Letter of
Credit in accordance with the terms thereof and the Borrower
shall not immediately reimburse the Issuing Bank in respect
thereof, then notice of such drawing or payment shall be
provided promptly by the Issuing Bank to the Agent and the
Agent shall provide notice to each Lender by telephone or
telefacsimile transmission. If notice to the Lenders of a
drawing under any Letter of Credit is given by the Agent at or
before 12:00 noon on any Business Day, each Lender shall
either make a Base Rate Refunding Loan or fund the purchase of
its Participation as specified above in the amount of such
Lender's Applicable Commitment Percentage of such drawing or
payment and shall pay such amount to the Agent for the account
of the Issuing Bank at the Principal Office in Dollars and in
immediately available funds before 2:30 P.M. on the same
Business Day. If such notice to the Lenders is given by the
Agent after 12:00 noon on any Business Day, each Lender shall
either make such Base Rate Refunding Loan or fund such
purchase before 12:00 noon on the next following Business Day.
(d) Repayment of Revolving Loans The principal amount of each
Revolving Loan shall be due and payable to the Agent for the benefit of
each Lender in full on the Revolving Credit Termination Date, or
earlier as specifically provided herein. The principal amount of any
Revolving Loan may be prepaid in whole or in part on any
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Business Day, upon (A) at least three (3) Business Days' irrevocable
telephonic notice in the case of each Revolving Loan that is a
Eurodollar Rate Loan from an Authorized Representative (effective upon
receipt) to the Agent prior to 10:30 A.M. and (B) irrevocable
telephonic notice in the case of each Revolving Loan that is a Base
Rate Loan from an Authorized Representative (effective upon receipt) to
the Agent prior to 10:30 A.M. on the day of such proposed repayment.
The Authorized Representative shall provide the Agent written
confirmation of each such telephonic notice but failure to provide such
confirmation shall not effect the validity of such telephonic notice.
All prepayments of Revolving Loans made by the Borrower shall be in the
amount of $1,000,000 or such greater amount which is an integral
multiple of $250,000, or the amount equal to all Revolving Credit
Outstandings, or such other amount as necessary to comply with Section
2.2(b).
(e) Reductions. The Borrower shall, by notice from an
Authorized Representative, have the right from time to time but not
more frequently than once each calendar month, upon not less than three
(3) Business Days' written notice to the Agent, effective upon receipt,
to reduce the Total Revolving Credit Commitment. The Agent shall give
each Lender, within one (1) Business Day of receipt of such notice,
telefacsimile notice, or telephonic notice (confirmed in writing), of
such reduction. Each such reduction shall be in the aggregate amount of
$1,000,000 or such greater amount which is in an integral multiple of
$250,000, or the entire remaining Total Revolving Credit Commitment,
and shall permanently reduce the Total Revolving Credit Commitment.
Each reduction of the Total Revolving Credit Commitment shall be
accompanied by payment of the Revolving Loans or Swing Line Loans to
the extent that the principal amount of Revolving Credit Outstandings
plus Letter of Credit Outstandings plus Swing Line Outstandings exceeds
the lesser of (i) the Total Revolving Credit Commitment and (ii) the
Borrowing Base after giving effect to such reduction, together with
accrued and unpaid interest on the amounts prepaid.
2.3 Use of Proceeds.
(a) The proceeds of the Term Loans shall be used by the
Borrower exclusively (i) to refinance the UTI Indebtedness and certain
existing Indebtedness of the Borrower; (ii) to pay the cash portion of
the purchase price for the shares of UTI pursuant to the Acquisition
Documents; and (iii) to pay fees and expenses incurred in connection
with the UTI Acquisition.
(b) The proceeds of the Loans made pursuant to the Revolving
Credit Facility hereunder shall be used by the Borrower for general
working capital needs and other corporate purposes, including the
making of Acquisitions, Capital Expenditures and, subject to the
provisions set forth below, funding Earnout Payments permitted
hereunder. Proceeds of the Revolving Credit Facility may be used to
fund Earnout Payments only if (i) the Consolidated Senior Leverage
Ratio, after giving effect to an Advance in connection with an Earnout
Payment, is, as of the most recently ended fiscal quarter during Fiscal
Year 2001, less than 3.10 to 1.00 and, as of the most recently ended
fiscal quarter during Fiscal Year 2002, less than 2.75 to 1.00; (ii)
the Borrower has not less than
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$7,500,000 in availability under the Revolving Credit Facility
(calculated by reference to the most recently delivered Borrowing Base
Certificate) immediately after such Advance; (iii) no Default or Event
of Default shall have occurred and be continuing, including compliance
with Section 10.1, prior to and after giving effect to such Advance;
and (iv) the Adjusted Consolidated Fixed Charge Ratio shall not be less
than 1.00 to 1.00 for the Four-Quarter Period ended on or most recently
prior to the date of computation, after giving pro forma effect to such
Advance and to such Earnout Payment.
2.4 Notes.
(a) Revolving Notes. Revolving Loans made by each Lender shall
be evidenced by the Revolving Note payable to the order of such Lender
in the respective amount of its Applicable Commitment Percentage of the
Total Revolving Credit Commitment, which Revolving Note shall be dated
the Closing Date or a later date pursuant to an Assignment and
Acceptance and shall be duly completed, executed and delivered by the
Borrower.
(b) Term Notes. The portion of the Term Loans made by each
Lender shall be evidenced by a Term A Note and a Term B Note, each
payable to the order of such Lender in the respective amount of its
Term A Loan Commitment and Term B Loan Commitment, respectively, which
Term Notes shall be dated the Closing Date or a later date pursuant to
an Assignment and Acceptance and shall be duly completed, executed and
delivered by the Borrower.
(c) Swing Line Note. The Swing Line Outstandings shall be
evidenced by a separate Swing Line Note payable to the order of the
Swing Line Lender in the amount of the Swing Line, which Note shall be
dated the Closing Date and shall be duly completed, executed and
delivered by the Borrower.
2.5 Swing Line.
(a) Notwithstanding any other provision of this Agreement to
the contrary, in order to administer the Revolving Credit Facility in
an efficient manner and to minimize the transfer of funds between the
Agent and the Lenders, the Swing Line Lender shall make available Swing
Line Loans to the Borrower prior to the Revolving Credit Termination
Date. The Swing Line Lender shall not be obligated to make any Swing
Line Loan pursuant hereto (i) if to the actual knowledge of the Swing
Line Lender the Borrower is not in compliance with all the conditions
to the making of Revolving Loans set forth in this Agreement, (ii) if
after giving effect to such Swing Line Loan, the Swing Line
Out-standings exceed $5,000,000, or (iii) if after giving effect to
such Swing Line Loan, the sum of the Swing Line Outstandings, Revolving
Credit Outstandings and Letter of Credit Outstandings exceeds the Total
Revolving Credit Commitment. The Company may, subject to the conditions
set forth in the preceding sentence, borrow, repay and reborrow under
this Section 2.6. Unless notified to the contrary by the Swing Line
Lender, borrowings under the Swing Line shall be made in the minimum
amount of $250,000 or, if greater, in amounts which are integral
multiples of $100,000, or in the
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amount necessary to effect a Base Rate Refunding Loan, upon written
request by telefacsimile transmission, effective upon receipt, by an
Authorized Representative of the Borrower made to the Swing Line Lender
not later than 12:30 P.M. on the Business Day of the requested
borrowing. Each such Borrowing Notice shall specify the amount of the
borrowing and the date of borrowing, and shall be in the form of
Exhibit D-2, with appropriate insertions. Unless notified to the
contrary by the Swing Line Lender, each repayment of a Swing Line Loan
shall be in an amount which is an integral multiple of $100,000 or the
aggregate amount of all Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the
account of the Swing Line Lender. Swing Line Loans shall bear interest
solely at the Base Rate. Swing Line Loans shall accrue interest and
shall be payable on the dates and in the manner provided in Sections
4.3 with respect to interest on Base Rate Loans.
(c) Upon the making of a Swing Line Loan, each Lender shall be
deemed to have purchased from the Swing Line Lender a Participation
therein in an amount equal to that Lender's Applicable Commitment
Percentage of such Swing Line Loan. Upon demand made by the Swing Line
Lender, each Lender shall, according to its Applicable Commitment
Percentage of such Swing Line Loan, promptly provide to the Swing Line
Lender its purchase price therefor in an amount equal to its
Participation therein. Any Advance made by a Lender pursuant to demand
of the Swing Line Lender of the purchase price of its Participation
shall when made be deemed to be (i) provided that the conditions to
making Revolving Loans shall be satisfied, a Base Rate Refunding Loan
under Section 2.2, and (ii) in all other cases, the funding by each
Lender of the purchase price of its Participation in such Swing Line
Loan. The obligation of each Lender to so provide its purchase price to
the Swing Line Lender shall be absolute and unconditional and shall not
be affected by the occurrence of an Event of Default or any other
occurrence or event.
The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to Section 2.2 in an amount sufficient to
repay Swing Line Outstandings on any date and the Agent shall provide
from the proceeds of such Advance to the Swing Line Lender the amount
necessary to repay such Swing Line Outstandings (which the Swing Line
Lender shall then apply to such repayment) and credit any balance of
the Advance in immediately available funds in the manner directed by
the Borrower pursuant to Section 2.2(c)(ii). The proceeds of such
Advances shall be paid to the Swing Line Lender for application to the
Swing Line Outstandings and the Lenders shall then be deemed to have
made Loans in the amount of such Advances. The Swing Line shall
continue in effect until the Revolving Credit Termination Date, at
which time all Swing Line Outstandings and accrued interest thereon
shall be due and payable in full.
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ARTICLE III
Letters of Credit
3.1 Letters of Credit. The Issuing Bank agrees, subject to the terms
and conditions of this Agreement, upon request of the Borrower to issue from
time to time for the account of the Borrower Letters of Credit upon delivery to
the Issuing Bank of an Application and Agreement for Letter of Credit relating
thereto in form and content acceptable to the Issuing Bank; provided, that (i)
the Issuing Bank shall not be obligated to issue (or renew) any Letter of Credit
if it has been notified by the Agent or has actual knowledge that a Default or
Event of Default has occurred and is continuing, (ii) the Letter of Credit
Outstandings shall not exceed the Total Letter of Credit Commitment and (iii) no
Letter of Credit shall be issued (or renewed) if, after giving effect thereto,
Letter of Credit Outstandings plus Revolving Credit Outstandings plus Swing Line
Outstandings shall exceed the lesser of (i) the Total Revolving Credit
Commitment and (ii) the Borrowing Base. No Letter of Credit shall have an expiry
date (including all rights of the Borrower or any beneficiary named in such
Letter of Credit to require renewal) or payment date occurring later than the
earlier to occur of one year after the date of its issuance or the seventh
Business Day prior to the Stated Termination Date.
3.2 Reimbursement and Participations.
(a) The Borrower hereby unconditionally agrees to pay to the
Issuing Bank immediately on demand at the Principal Office all amounts
required to pay all drafts drawn or purporting to be drawn under the
Letters of Credit and all reasonable expenses incurred by the Issuing
Bank in connection with the Letters of Credit, and in any event and
without demand to place in possession of the Issuing Bank (which shall
include Advances under the Revolving Credit Facility if permitted by
Section 2.2 and Swing Line Loans if permitted by Section 2.5)
sufficient funds to pay all debts and liabilities arising under any
Letter of Credit. The Issuing Bank agrees to give the Borrower prompt
notice of any request for a draw under a Letter of Credit. The Issuing
Bank may charge any account the Borrower may have with it for any and
all amounts the Issuing Bank pays under a Letter of Credit, plus
charges and reasonable expenses as from time to time agreed to by the
Issuing Bank and the Borrower; provided that to the extent permitted by
Section 2.2(c)(iii) and Section 2.5, amounts shall be paid pursuant to
Advances under the Revolving Credit Facility or, if the Borrower shall
elect, by Swing Line Loans. The Borrower agrees to pay the Issuing Bank
interest on any Reimbursement Obligations not paid when due hereunder
at the Default Rate.
(b) In accordance with the provisions of Section 2.2(c), the
Issuing Bank shall notify the Agent of any drawing under any Letter of
Credit promptly following the receipt by the Issuing Bank of such
drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, a Participation
in the liability of the Issuing Bank in respect of each Letter of
Credit in an amount equal to such Lender's Applicable Commitment
Percentage of such liability, and to the extent that the Borrower is
obligated to pay the
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Issuing Bank under Section 3.2(a), each Lender (other than the Issuing
Bank) thereby shall absolutely, unconditionally and irrevocably assume,
and shall be unconditionally obligated to pay to the Issuing Bank, its
Applicable Commitment Percentage of the liability of the Issuing Bank
under such Letter of Credit in the manner and with the effect provided
in Section 2.2(c)(iii).
(d) Simultaneously with the making of each payment by a Lender
to the Issuing Bank pursuant to Section 2.2(c)(iii)(B), such Lender
shall, automatically and without any further action on the part of the
Issuing Bank or such Lender, acquire a Participation in an amount equal
to such payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the related
Reimbursement Obligation of the Borrower. Each Lender's obligation to
make payment to the Agent for the account of the Issuing Bank pursuant
to Section 2.2(c)(iii) and Section 3.2(c), and the right of the Issuing
Bank to receive the same, shall be absolute and unconditional, shall
not be affected by any circumstance whatsoever and shall be made
without any offset, abatement, withholding or reduction whatsoever. In
the event the Lenders have purchased Participations in any
Reimbursement Obligation as set forth above, then at any time payment
(in fully collected, immediately available funds) of such Reimbursement
Obligation, in whole or in part, is received by the Issuing Bank from
the Borrower, the Issuing Bank shall promptly pay to each Lender an
amount equal to its Applicable Commitment Percentage of such payment
from the Borrower.
(e) Promptly following the end of each calendar quarter, the
Issuing Bank shall deliver to the Agent a notice describing the
aggregate undrawn amount of all Letters of Credit at the end of such
quarter. Upon the request of any Lender from time to time, the Issuing
Bank shall deliver to the Agent, and the Agent shall deliver to such
Lender, any other information reasonably requested by such Lender with
respect to each Letter of Credit outstanding.
(f) The issuance by the Issuing Bank of each Letter of Credit
shall, in addition to the conditions precedent set forth in Article
VII, be subject to the conditions that such Letter of Credit be in such
form and contain such terms as shall be reasonably satisfactory to the
Issuing Bank consistent with the then current practices and procedures
of the Issuing Bank with respect to similar letters of credit, and the
Borrower shall have executed and delivered such other instruments and
agreements relating to such Letters of Credit as the Issuing Bank shall
have reasonably requested consistent with such practices and procedures
and shall not be in conflict with any of the express terms herein
contained. All Letters of Credit shall be issued pursuant to and
subject to the Uniform Customs and Practice for Documentary Credits,
1993 Revision, International Chamber of Commerce Publication No. 500
or, if the Issuing Bank shall elect by express reference in an affected
Letter of Credit, the International Chamber of Commerce International
Standby Practices commonly referred to as "ISP98," or any subsequent
amendment or revision of either thereof.
(g) The Borrower agrees that the Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any Letter of
Credit, any drafts or other
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documents otherwise in order which may be signed or issued by an
administrator, executor, trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, liquidator, receiver, attorney
in fact or other legal representative of a party who is authorized
under such Letter of Credit to draw or issue any drafts or other
documents.
(h) Without limiting the generality of the provisions of
Section 13.9, the Borrower hereby agrees to indemnify and hold harmless
the Issuing Bank, each other Lender and the Agent from and against any
and all claims and damages, losses, liabilities, reasonable costs and
expenses which the Issuing Bank, such other Lender or the Agent may
incur (or which may be claimed against the Issuing Bank, such other
Lender or the Agent) by any Person by reason of or in connection with
the issuance or transfer of or payment or failure to pay under any
Letter of Credit; provided that the Borrower shall not be required to
indemnify the Issuing Bank, any other Lender or the Agent for any
claims, damages, losses, liabilities, costs or expenses to the extent,
but only to the extent, (i) caused by the willful misconduct or gross
negligence of the party to be indemnified or (ii) caused by the failure
of the Issuing Bank to pay under any Letter of Credit after the
presentation to it of a request for payment strictly complying with the
terms and conditions of such Letter of Credit, unless such payment is
prohibited by any law, regulation, court order or decree. The
indemnification and hold harmless provisions of this Section 3.2(h)
shall survive repayment of the Obligations, occurrence of the Revolving
Credit Termination Date, the Facility Termination Date and expiration
or termination of this Agreement.
(i) Without limiting Borrower's rights as set forth in Section
3.2(h), the obligation of the Borrower to immediately reimburse the
Issuing Bank for drawings made under Letters of Credit and the Issuing
Bank's right to receive such payment shall be absolute, unconditional
and irrevocable, and such obligations of the Borrower shall be
performed strictly in accordance with the terms of this Agreement and
such Letters of Credit and the related Application and Agreement for
any Letter of Credit, under all circumstances whatsoever, including the
following circumstances:
(i) any lack of validity or enforceability
of the Letter of Credit, the obligation supported by the
Letter of Credit or any other agreement or instrument relating
thereto (collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any
consent to or departure from all or any of the Related LC
Documents;
(iii) the existence of any claim, setoff,
defense (other than the defense of payment in accordance with
the terms of this Agreement) or other rights which the
Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any persons or entities
for whom any such beneficiary or any such transferee may be
acting), the Agent, the Lenders or any other Person, whether
in connection with the Loan Documents, the Related LC
Documents or any unrelated transaction;
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(iv) any breach of contract or other dispute
between the Borrower and any beneficiary or any transferee of
a Letter of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the Agent,
the Lenders or any other Person;
(v) any draft, statement or any other
document presented under the Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any
respect whatsoever so long as any such document appeared to
comply with the terms of the Letter of Credit;
(vi) the existence, character, quality,
quantity, condition, value, or delivery (including the time,
place, manner or order thereof) of property described or
purportedly described in documents presented in connection
with any Letter of Credit or the existence, nature or extent
of any insurance related thereto;
(vii) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Agent, with or without notice to or approval
by the Borrower in respect of any of Borrower's Obligations
under this Agreement; or
(viii) any other circumstance or happening
whatsoever where the Issuing Bank has acted in good faith,
whether or not similar to any of the foregoing.
ARTICLE IV
Eurodollar Funding, Fees, and Payment Conventions
4.1 Interest Rate Options. Eurodollar Rate Loans and Base Rate Loans
may be outstanding at the same time and, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower shall have the
option to elect the Type of Loan and the duration of the initial and any
subsequent Interest Periods and to Convert Revolving Loans and Segments of the
Term Loans in accordance with Sections 2.2(c)(i) and 4.2, as applicable;
provided, however, (a) there shall not be outstanding at any one time Eurodollar
Rate Loans having more than four (4) different Interest Periods, (b) each
Eurodollar Rate Loan (including each Conversion into and each Continuation as a
Eurodollar Rate Loan) shall be in an amount of $1,000,000 or, if greater than
$1,000,000, an integral multiple of $250,000, (c) no Eurodollar Rate Segment
shall have an Interest Period that extends beyond the Term Loan Termination Date
and no other Eurodollar Rate Loan shall have an Interest Period that extends
beyond the Stated Termination Date. If the Agent does not receive a Borrowing
Notice or an Interest Rate Selection Notice giving notice of election of the
duration of an Interest Period or of Conversion of any Loan to or Continuation
of a Loan as a Eurodollar Rate Loan by the time prescribed by Sections 2.2(c)(i)
or 4.2, as applicable, the Borrower shall be deemed to have elected to obtain or
Convert such Loan to (or Continue such Loan as) a Base Rate Loan until the
Borrower notifies
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the Agent in accordance with Section 4.2. The Borrower shall not be entitled to
request or elect to Continue any Loan as a Eurodollar Rate Loan, or Convert any
Loan into a Eurodollar Rate Loan, if a Default or Event of Default shall have
occurred and be continuing.
4.2 Conversions and Elections of Subsequent Interest Periods. Subject
to the limitations set forth in the definition of "Interest Period" and in
Section 4.1 and Article VI, the Borrower may:
(a) upon delivery of telephonic notice to the Agent (which
shall be irrevocable) on or before 10:30 A.M. on any Business Day,
Convert any Eurodollar Rate Loan to a Base Rate Loan on the last day of
the Interest Period for such Eurodollar Rate Loan; and
(b) provided that no Default or Event of Default shall have
occurred and be continuing, upon delivery of telephonic notice to the
Agent (which shall be irrevocable on or before 10:30 A.M. three (3)
Business Days' prior to the date of such Conversion or Continuation:
(i) elect a subsequent Interest Period for
any Eurodollar Rate Loan to begin on the last day of the then
current Interest Period for such Eurodollar Rate Loan; or
(ii) Convert any Base Rate Loan to a
Eurodollar Rate Loan on any Business Day.
Each such notice shall be effective upon receipt by the Agent, shall
specify the amount of the Eurodollar Rate Loan affected, the type of
Loan (Revolving Loan or Segment of the Term Loan) affected, and, if a
Continuation as or Conversion into a Eurodollar Rate Loan, the Interest
Period to be used in the computation of interest. The Authorized
Representative shall provide the Agent written confirmation of each
such telephonic notice in the form of a Borrowing Notice or Interest
Rate Selection Notice (as applicable) with appropriate insertions but
failure to provide such confirmation shall not affect the validity of
such telephonic notice. Notice of receipt of such Borrowing Notice or
Interest Rate Selection Notice, as the case may be, shall be provided
by the Agent to each Lender by telefacsimile transmission with
reasonable promptness, but (provided the Agent shall have received such
notice by 10:30 A.M.) not later than 3:00 P.M. on the same day as the
Agent's receipt of such notice. All such Continuations or Conversions
of Loans shall be effected pro rata based on the Applicable Commitment
Percentages of the Lenders.
4.3 Payment of Interest. The Borrower shall pay interest on the
outstanding and unpaid principal amount of each Segment of the Term Loans and on
each Revolving Loan, commencing on the first date of such Segment or Revolving
Loan until such Segment or Revolving Loan, as the case may be, shall be repaid,
at the applicable Base Rate or Eurodollar Rate as designated by the Borrower in
the related Borrowing Notice or Interest Rate Selection Notice or as otherwise
provided hereunder. Interest on each Segment and on each Revolving Loan shall be
paid on the earlier of (a) in the case of any Base Rate Loan, quarterly in
arrears of
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the last Business Day of each September, December, March and June, commencing on
June 30, 2000, until, as to any Base Rate Segment, the Term Loan A Termination
Date or the Term Loan B Termination Date, as applicable, and as to any other
Base Rate Loans, the Revolving Credit Termination Date, at which date as
applicable the entire principal amount of and all accrued interest on the Term
Loans and the Revolving Loans, respectively, shall be paid in full, (b) in the
case of any Eurodollar Rate Loan, on the last day of the applicable Interest
Period for such Eurodollar Rate Loan and if such Interest Period extends for
more than three (3) months, at intervals of three (3) months after the first day
of such Interest Period, and (c) upon payment in full of the related Term Loan
(or Segment thereof) or the related Revolving Loan; provided, however, that if
any Event of Default shall occur and be continuing, all amounts outstanding
hereunder shall bear interest thereafter until paid in full at the Default Rate.
4.4 Prepayments of Eurodollar Rate Loans. Whenever any payment of
principal shall be made in respect of any Loan hereunder, whether at maturity,
on acceleration, by optional or mandatory prepayment or as otherwise required or
permitted hereunder, with the effect that any Eurodollar Rate Loan shall be
prepaid in whole or in part prior to the last day of the Interest Period
applicable to such Eurodollar Rate Loan, such payment of principal shall be
accompanied by the additional payment, if any, required by Section 6.5.
4.5 Manner of Payment.
(a) Each payment of principal (including any prepayment) and
payment of interest and fees, and any other amount required to be paid
by or on behalf of the Borrower to the Lenders, the Issuing Bank, the
Agent, the Swing Line Lender with respect to any Loan, Letter of
Credit, Reimbursement Obligation or Swing Line Loan, shall be made to
the Agent at the Principal Office in Dollars in immediately available
funds without condition or deduction for any setoff, recoupment,
deduction or counterclaim on or before 12:30 P.M. on the date such
payment is due. The Agent may, but shall not be obligated to, debit the
amount of such payment from any one or more ordinary deposit accounts
of the Borrower with the Agent.
(b) Any payment made by or on behalf of the Borrower that is
not made both in Dollars, in immediately available funds and prior to
12:30 P.M. on the date such payment is to be made shall constitute a
non-conforming payment. Any such non-conforming payment shall not be
deemed to be received until the later of (i) the time such funds become
available funds and (ii) the next Business Day. Any non-conforming
payment may constitute or become a Default or Event of Default as
otherwise provided herein. Interest shall continue to accrue at the
Default Rate on any principal or fees as to which no payment or a
non-conforming payment is made from the date such amount was due and
payable until the later of (i) the date such funds become available
funds or (ii) the next Business Day.
(c) In the event that any payment hereunder or under any of
the Notes becomes due and payable on a day other than a Business Day,
then such due date shall be extended to the next succeeding Business
Day unless provided otherwise under the definition of "Interest
Period"; provided, however, that interest shall continue to accrue
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during the period of any such extension; and provided further, however,
that in no event shall any such due date be extended (i) for any Term
Loan, beyond the Term Loan A Termination Date or Term Loan B
Termination Date, as applicable, and (ii) for any Revolving Loan,
beyond the Revolving Credit Termination Date.
4.6 Fees.
(a) Commitment Fee. For the period beginning on the Closing
Date and ending on the Revolving Credit Termination Date, the Borrower
agrees to pay to the Agent, for the pro rata benefit of the Lenders
based on their Applicable Commitment Percentages, a commitment fee
equal to the Applicable Commitment Fee multiplied by the average daily
amount by which the Total Revolving Credit Commitment exceeds the sum
of (i) Revolving Credit Outstandings (without giving effect to Swing
Line Outstandings except in the case of the Swing Line Lender) plus
(ii) Letter of Credit Outstandings. Such fees shall be due in arrears
on the last Business Day of each September, December, March and June
commencing June 30, 2000 to and on the Revolving Credit Termination
Date. Notwithstanding the foregoing, so long as any Lender fails to
make available any portion of its Revolving Credit Commitment when
requested, such Lender shall not be entitled to receive, and the
Borrower shall not be required to make, payment of the pro rata share
of such fee until such Lender shall make available such portion.
(b) Letter of Credit Facility Fees. The Borrower shall pay to
the Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, a fee on the aggregate amount
available to be drawn on each outstanding Letter of Credit at the rate
set forth in the Pricing Grid as the "Applicable Fee for Letters of
Credit". Such fees shall be due and payable with respect to each Letter
of Credit quarterly in arrears on the last day of each September,
December, March and June, the first such payment to be made on the
first such date occurring after the date of issuance of a Letter of
Credit.
(c) Letter of Credit Fronting and Administrative Fees. The
Borrower shall pay to the Issuing Bank a fronting fee of one quarter
percent per annum (.25%) on the aggregate amount available to be drawn
on each outstanding Letter of Credit, such fee to be due and payable
quarterly in arrears with respect to each Letter of Credit on the dates
established in Section 4.6(b) for the payment of Letter of Credit
facility fees. The Borrower shall also pay to the Issuing Bank such
administrative fee and other fees, if any, in connection with the
Letters of Credit in such amounts and at such times as the Issuing Bank
and the Borrower shall agree from time to time.
(d) Agent Fees. The Borrower agrees to pay to the Agent, for
the Agent's individual account, an annual Agent's fee, such fee to be
payable in such amounts and at such dates as from time to time agreed
to by the Borrower and Agent in writing.
4.7 Pro Rata Payments. Except as otherwise specified herein, (a) each
payment on account of the principal of and interest on (i) the Revolving Loans,
(ii) the Term Loans, (iii) the fees described in Section 4.6(a) and (b), and
(iv) the Swing Line Loans, and Reimbursement
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Obligations as to which the Lenders have funded their respective Participations
which remain outstanding, shall be made to the Agent for the account of the
Lenders pro rata based on their Applicable Commitment Percentages, and (b) the
Agent will promptly distribute to the Lenders in immediately available funds
payments received in fully collected, immediately available funds from the
Borrower.
4.8 Computation of Rates and Fees. Except as may be otherwise expressly
provided, (i) the Prime Rate shall be computed on the basis of a year of 365/366
days calculated for the actual number of days elapsed and (ii) all other
interest rates (including the Eurodollar Rate and the Default Rate) and fees
shall be computed on the basis of a year of 360 days and calculated for actual
days elapsed.
4.9 Deficiency Advances; Failure to Purchase Participations. No Lender
shall be responsible for any default of any other Lender in respect to such
other Lender's obligation to make any Loan or Advance hereunder or to fund its
purchase of any Participation hereunder nor shall the Revolving Credit
Commitment, Term Loan Commitment or Letter of Credit Commitment of any Lender
hereunder be increased as a result of such default of any other Lender. Without
limiting the generality of the foregoing or the provisions of Section 4.10, in
the event any Lender shall fail to advance funds to the Borrower as herein
provided, the Agent may in its discretion, but shall not be obligated to,
advance under the applicable Note in its favor as a Lender all or any portion of
such amount or amounts (each, a "deficiency advance") and shall thereafter be
entitled to payments of principal of and interest on such deficiency advance in
the same manner and at the same interest rate or rates to which such other
Lender would have been entitled had it made such Advance under its Note;
provided that, (i) such defaulting Lender shall not be entitled to receive
payments of principal, interest or fees with respect to such deficiency advance
until such deficiency advance (together with interest thereon as provided in
clause (ii)) shall be paid by such Lender and (ii) upon payment to the Agent
from such other Lender of the entire outstanding amount of each such deficiency
advance, together with accrued and unpaid interest thereon, from the most recent
date or dates interest was paid to the Agent by a Borrower on each Loan
comprising the deficiency advance at the Federal Funds Rate, then such payment
shall be credited against the applicable Note of the Agent in full payment of
such deficiency advance and such Borrower shall be deemed to have borrowed the
amount of such deficiency advance from such other Lender as of the most recent
date or dates, as the case may be, upon which any payments of interest were made
by such Borrower thereon. In the event any Lender shall fail to fund its
purchase of a Participation after notice from the Issuing Bank or the Swing Line
Lender, as applicable, such Lender shall pay to the Issuing Bank or the Swing
Line Lender, as applicable, such amount on demand, together with interest at the
Federal Funds Rate on the amount so due from the date of such notice to the date
such purchase price is received by the Issuing Bank or the Swing Line Lender, as
applicable.
4.10 Intraday Funding. Without limiting the provisions of Section 4.9,
unless the Borrower or any Lender has notified the Agent not later than 12:00
Noon of the Business Day before the date any payment (including in the case of
Lenders any Advance) to be made by it is due, that it does not intend to remit
such payment, the Agent may, in its discretion, assume that Borrower or each
Lender, as the case may be, has timely remitted such payment in the manner
required hereunder and may, in its discretion and in reliance thereon, make
available such
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payment (or portion thereof) to the Person entitled thereto as otherwise
provided herein. If such payment was not in fact remitted to the Agent in the
manner required hereunder, then:
(i) if Borrower failed to make such payment, each Lender shall
forthwith on demand repay to the Agent the amount of such assumed
payment made available to such Lender, together with interest thereon
in respect of each day from and including the date such amount was made
available by the Agent to such Lender to the date such amount is repaid
to the Agent at the Federal Funds Rate; and
(ii) if any Lender failed to make such payment, the Agent
shall be entitled to recover such corresponding amount forthwith upon
the Agent's demand therefor, the Agent promptly shall notify the
Borrower, and the Borrower shall promptly pay such corresponding amount
to the Agent in immediately available funds upon receipt of such
demand. The Agent also shall be entitled to recover interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrower to
the date such corresponding amount is recovered by the Agent, (A) from
such Lender at a rate per annum equal to the daily Federal Funds Rate
or (B) from the Borrower, at a rate per annum equal to the interest
rate applicable to the Loan which includes such corresponding amount.
Until the Agent shall recover such corresponding amount together with
interest thereon, such corresponding amount shall constitute a
deficiency advance within the meaning of Section 4.9. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill
its commitments hereunder or to prejudice any rights which the Agent or
the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
ARTICLE V
Security
5.1 Security. As security for the full and timely payment and
performance of all Obligations (and with respect to clause (a)(iii), all
obligations of Borrowing Subsidiaries), the Borrower shall, and shall cause all
other Credit Parties to, on or before the Closing Date, do or cause to be done
all things necessary in the opinion of the Agent and its counsel to grant to the
Agent for the benefit of the Agent and the Lenders a duly perfected first
priority security interest in all Collateral subject to no prior Lien or other
encumbrance or restriction on transfer (other than Permitted Liens and
restrictions on transfer imposed by applicable securities laws). Without
limiting the foregoing, the Borrower and each Subsidiary having rights in any
Subsidiary Securities shall on the Closing Date deliver to the Agent, in form
and substance reasonably acceptable to the Agent,
1. a Pledge Agreement which shall pledge to the Agent for the
benefit of the Agent and the Lenders (i) 65% of the Voting Securities
of each Direct Foreign Subsidiary (or if the Borrower and its
Subsidiaries shall own less than 65%, then all of the Voting Securities
owned by them) and 100% of the other Subsidiary Securities of such
Direct
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Foreign Subsidiary, and (ii) 100% of the Subsidiary Securities of all
Domestic Subsidiaries.
(b) if such Subsidiary Securities are in the form of
certificated securities, such certificated securities, together with
undated stock powers or other appropriate transfer documents endorsed
in blank pertaining thereto;
(c) if such Subsidiary Securities do not constitute securities
and the Subsidiary has not elected to have such interests treated as
securities under Article 8 of the Uniform Commercial Code, a control
agreement (containing the provisions described in Section 9.19(e)) from
the Registrar of such Subsidiary Securities; and
1. Uniform Commercial Code financing statements reflecting the
Lien in favor of the Agent on such Subsidiary Securities;
each in form and substance acceptable to the Agent, and shall take such further
action and deliver or cause to be delivered such further documents as required
by the Security Instruments or otherwise as the Agent may request to effect the
transactions contemplated by this Article V. The Borrower shall, and shall cause
each Subsidiary, to pledge to the Agent for the benefit of the Agent and the
Lenders (and as appropriate to reaffirm its prior pledge of) all of the Pledged
Interests of any Subsidiary acquired or created after the Closing Date and to
deliver to the Agent all of the documents and instruments in connection
therewith as are required pursuant to the terms of Section 9.19 and of the
Security Instruments.
5.2 Further Assurances. At the request of the Agent, the Borrower will
or will cause all other Credit Parties, as the case may be, to execute, by its
duly authorized officers, alone or with the Agent, any certificate, instrument,
financing statement, control agreement, statement or document, or to procure any
such certificate, instrument, statement or document, or to take such other
action (and pay all connected costs) which the Agent reasonably deems necessary
from time to time to create, continue or preserve the liens and security
interests in Collateral (and the perfection and priority thereof) of the Agent
contemplated hereby and by the other Loan Documents and specifically including
all Collateral acquired by the Borrower or other Credit Party after the Closing
Date. The Agent is hereby irrevocably authorized to execute and file or cause to
be filed, with or if permitted by applicable law without the signature of the
Borrower or any Credit Party appearing thereon, all Uniform Commercial Code
financing statements reflecting the Borrower or any other Credit Party as
"debtor" and the Agent as "secured party", and continuations thereof and
amendments thereto, as the Agent reasonably deems necessary or advisable to give
effect to the transactions contemplated hereby and by the other Loan Documents.
5.3 Mortgages. Without limiting the generality of Section 5.1, the
Borrower, as security for all Obligations, and each Domestic Subsidiary, as
security for the Guarantors' obligations, as applicable, shall deliver to the
Agent (i) on the Closing Date, with respect to each parcel of real property
owned or leased by the Borrower or a Subsidiary listed on Schedule 5.3, a
Mortgage and related Mortgage Support Documents, and (ii) thereafter, with
respect to each parcel of real property owned, acquired or leased by the
Borrower or a Domestic Subsidiary,
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unless otherwise determined by the Required Lenders, a Mortgage with respect to
such parcel of real property and the related Mortgage Support Documents.
5.4 Information Regarding Collateral. The Borrower represents, warrants
and covenants that (i) the chief executive office of the Borrower and each other
Person providing Collateral pursuant to a Security Instrument (each, a
"Grantor") at the Closing Date is located at the address or addresses specified
on Schedule 5.4, and (ii) Schedule 5.4 contains a true and complete list of (a)
the exact legal name, jurisdiction of formation, and address of each Grantor and
of each other Person that has effected any merger or consolidation with a
Grantor or contributed or transferred to a Grantor any property constituting
Collateral at any time since January 1, 1995 (excluding Persons making sales in
the ordinary course of their businesses to a Grantor of property constituting
inventory in the hands of such seller), (b) the exact legal name, jurisdiction
of formation, and each location of the chief executive office of each Grantor at
any time since January 1, 1995, (c) each location in which goods constituting
Collateral are or have been located since January 1, 1995 (together with the
name of each owner of the property located at such address if not the applicable
Grantor, and a summary description of the relationship between the applicable
Grantor and such Person), and (d) each trade name, trademark or other trade
style used by any Grantor since January 1, 1995 and the purposes for which it
was used. Borrower shall not change, and shall not permit any other Grantor to
change, its name, jurisdiction of formation (whether by reincorporation, merger
or otherwise), the location of its chief executive office or any location
specified in clause (c) of the immediately preceding sentence, or use or permit
any other Grantor to use, any additional trade name, trademark or other trade
style, except upon giving not less than thirty (30) days' prior written notice
to the Agent and taking or causing to be taken all such action at Borrower's or
such other Grantor's expense as may be reasonably requested by the Agent to
perfect or maintain the perfection of the Lien of the Agent in Collateral.
5.5 Lease Assignments. Without limiting the generality of Section 5.1,
the Borrower, as security for all Obligations, and each Domestic Subsidiary, as
security for the Guarantors' obligations, as applicable, shall deliver to the
Agent (i) on the Closing Date, with respect to each parcel of real property
owned or leased by the Borrower or a Subsidiary listed on Schedule 5.3, a
Mortgage and related Mortgage Support Documents, and (ii) thereafter, with
respect to each parcel of real property owned, acquired or leased by the
Borrower or a Domestic Subsidiary, unless otherwise determined by the Required
Lenders, a Mortgage with respect to such parcel of real property and the related
Mortgage Support Documents.
ARTICLE VI
Change in Circumstances
6.1 Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable
law, rule, or regulation, or any change in any applicable law, rule, or
regulation, or any change in the interpretation or administration
thereof by any governmental authority, central bank, or
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comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office)
with any request or directive (whether or not having the force of law)
of any such governmental authority, central bank, or comparable agency:
(i) shall subject such Lender (or its
Applicable Lending Office) to any tax, duty, or other charge
with respect to any Eurodollar Rate Loans, any of its Notes,
or its obligation to make Eurodollar Rate Loans, or change the
basis of taxation of any amounts payable to such Lender (or
its Applicable Lending Office) under this Agreement or any of
its Notes in respect of any Eurodollar Rate Loans (other than
taxes imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal office or
such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, compulsory loan, or
similar requirement (other than the Reserve Requirement
utilized in the determination of the Eurodollar Rate) relating
to any extensions of credit or other assets of, or any
deposits with or other liabilities or commitments of, such
Lender (or its Applicable Lending Office), including either of
the Term Loan Commitments or Revolving Credit Commitment of
such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable
Lending Office) or on the London interbank market any other
condition affecting this Agreement or any of its Notes or any
of such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, Converting into,
Continuing, or maintaining any Loans or to reduce any sum received or
receivable by such Lender (or its Applicable Lending Office) under this
Agreement or any of its Notes with respect to any Eurodollar Rate
Loans, then the Borrower shall pay to such Lender, on demand such
amount or amounts as will compensate such Lender for such increased
cost or reduction. If any Lender requests compensation by the Borrower
under this Section 6.1(a), the Borrower may, by notice to such Lender
(with a copy to the Agent), suspend the obligation of such Lender, to
make or Continue Loans of the Type with respect to which such
compensation is requested, or to Convert Loans of any other Type into
Loans of such Type, until the event or condition giving rise to such
request ceases to be in effect (in which case the provisions of Section
6.4 shall be applicable); provided that such suspension shall not
affect the right of such Lender to receive the compensation so
requested.
(b) If, after the date hereof, any Lender shall have
determined that the adoption of any applicable law, rule, or regulation
regarding capital adequacy or any change therein or in the
interpretation or administration thereof by any governmental authority,
central bank, or comparable agency charged with the interpretation or
administration thereof, or any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
governmental authority, central bank, or
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comparable agency, has or would have the effect of reducing the rate of
return on the capital of such Lender or any corporation controlling
such Lender as a consequence of such Lender's obligations hereunder to
a level below that which such Lender or such corporation could have
achieved but for such adoption, change, request, or directive (taking
into consideration its policies with respect to capital adequacy), then
from time to time upon demand the Borrower shall pay to such Lender,
such additional amount or amounts as will compensate such Lender for
such reduction.
(c) Each Lender shall promptly notify the Borrower and the
Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this
Section 6.1 and will designate a different Applicable Lending Office if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this
Section 6.1 shall furnish to the Borrower and the Agent a statement
setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error.
In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
(d) The provisions of this Section 6.1 shall continue in
effect notwithstanding the Facility Termination Date.
6.2 Limitation on Types of Loans. If on or prior to the first day of
any Interest Period for any Eurodollar Rate Loan:
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Agent that the Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of funding
Eurodollar Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying
the relevant Type of Loans and the relevant amounts or periods, and so
long as such condition remains in effect, the Lenders, shall be under
no obligation to make additional Loans of such Type, Continue Loans of
such Type, or to Convert Loans of any other Type into Loans of such
Type and the Borrower shall, on the last day(s) of the then current
Interest Period(s) for the outstanding Loans of the affected Type,
either prepay such Loans or Convert such Loans into another Type of
Loan in accordance with the terms of this Agreement.
6.3 Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans hereunder, then such
Lender shall promptly notify the Borrower thereof and such Lender's obligation
to make or Continue Eurodollar Rate Loans and to Convert
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other Types of Loans into Eurodollar Rate Loans shall be suspended until such
time as such Lender may again make, maintain, and fund Eurodollar Rate Loans (in
which case the provisions of Section 6.4 shall be applicable).
6.4 Treatment of Affected Loans. If the obligation of any Lender to
make a Eurodollar Rate Loan, or to Continue, or to Convert Loans of any other
Type into, Loans of a particular Type shall be suspended pursuant to Section 6.1
or 6.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans under the Revolving Credit
Facility on the last day(s) of the then current Interest Period(s) for Affected
Loans (or, in the case of a Conversion required by Section 6.3 hereof, on such
earlier date as such Lender may specify to the Borrower with a copy to the
Agent) and, unless and until such Lender, gives notice as provided below that
the circumstances specified in Section 6.1 or 6.3 hereof that gave rise to such
Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans of such Lender that would
otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 6.1 or 6.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this Section 6.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
Converted, on the first day(s) of the next succeeding Interest Period(s) for
such outstanding Loans of the Affected Type, to the extent necessary so that,
after giving effect thereto, all Loans held by the Lenders holding Loans of the
Affected Type and by such Lender are held pro rata (as to principal amounts,
Types, and Interest Periods) in accordance with their respective Term Loan
Commitments and Revolving Credit Commitments.
6.5 Compensation. Upon the request of any Lender, the Borrower shall
pay to such Lender, such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(i) any payment, prepayment, or Conversion of a Eurodollar
Rate Loan for any reason (including, without limitation, the
acceleration of the Loans pursuant to Section 11.1) on a date other
than the last day of the Interest Period for such Loan; or
(ii) any failure by the Borrower (for any reason, including
the failure of any condition precedent specified in Article VII to be
satisfied, other than the failure of such
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Lender to make a Loan notwithstanding satisfaction of all conditions
precedent thereto) to borrow, Convert, Continue, or prepay a Eurodollar
Rate Loan on the date for such borrowing, Conversion, Continuation, or
prepayment specified in the relevant notice of borrowing, prepayment,
Continuation, or Conversion under this Agreement.
The provisions of this Section 6.5 shall continue in effect
notwithstanding the Facility Termination Date.
6.6 Taxes.
(a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges
or withholdings, and all liabilities with respect thereto, excluding,
in the case of each Lender and the Agent, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction under the laws
of which such Lender (or its Applicable Lending Office) or the Agent
(as the case may be) is organized or any political subdivision thereof
(all such non-excluded taxes, duties, levies, imposts, deductions,
charges, withholdings, and liabilities being hereinafter referred to as
"Taxes"). If the Borrower shall be required by law to deduct any Taxes
from or in respect of any sum payable under this Agreement or any other
Loan Document to any Lender or the Agent, (i) the sum payable shall be
increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this
Section 6.6) such Lender or the Agent receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law, and (iv) the Borrower
shall furnish to the Agent, at its address referred to in Section 13.2,
the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other excise or
property taxes or charges or similar levies which arise from any
payment made under this Agreement or any other Loan Document or from
the execution or delivery of, or otherwise with respect to, this
Agreement or any other Loan Document (hereinafter referred to as "Other
Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent
for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section 6.6) paid by such
Lender or the Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect
thereto.
(d) Each Lender organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and
delivery of this Agreement in the case of each Lender listed on the
signature pages hereof and on or prior to the date on which it becomes
a Lender in the case of each other Lender, and from time to time
thereafter if
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requested in writing by the Borrower or the Agent (but only so long as
such Lender remains lawfully able to do so), shall provide the Borrower
and the Agent with (i) Internal Revenue Service Form 1001 or 4224, as
appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces
the rate of withholding tax on payments of interest or certifying that
the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States,
(ii) Internal Revenue Service Form W-8 (including Forms W-8BEN or
W-8EC1) or W-9, as appropriate, or any successor form prescribed by the
Internal Revenue Service, and (iii) any other form or certificate
required by any taxing authority (including any certificate required by
Sections 871(h) and 881(c) of the Internal Revenue Code), certifying
that such Lender is entitled to an exemption from or a reduced rate of
tax on payments pursuant to this Agreement or any of the other Loan
Documents.
(e) For any period with respect to which a Lender has failed
to provide the Borrower and the Agent with the appropriate form
pursuant to Section 6.6(d) (unless such failure is due to a change in
treaty, law, or regulation occurring subsequent to the date on which a
form originally was required to be provided), such Lender shall not be
entitled to indemnification under Section 6.6(a) or 6.6(b) with respect
to Taxes imposed by the United States; provided, however, that should a
Lender, which is otherwise exempt from or subject to a reduced rate of
withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps
as such Lender shall reasonably request to assist such Lender to
recover such Taxes.
(f) If the Borrower is required to pay additional amounts to
or for the account of any Lender pursuant to this Section 6.6, then
such Lender, will agree to use reasonable efforts to change the
jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise
disadvantageous to it.
(g) Within thirty (30) days after the date of any payment of
Taxes, the Borrower shall furnish to the Agent the original or a
certified copy of a receipt evidencing such payment.
(h) The provisions of this Section 6.6 shall continue in
effect notwithstanding the Facility Termination Date.
ARTICLE VII
Conditions to Making Loans and Issuing Letters of Credit
7.1 Conditions of Term Loan and Initial Advance. The obligation of the
Lenders to make the Term Loan and the initial Advance under the Revolving Credit
Facility, and of the Issuing Bank to issue any Letter of Credit, and of the
Swing Line Lender to make any Swing Line Loan, is subject to the conditions
precedent that:
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(a) the Agent shall have received on the Closing Date, in form
and substance satisfactory to the Agent and Lenders, the following:
(i) executed originals of each of this Agreement, the
Notes, the initial Facility Guaranties, the Security
Instruments, the Mortgage Support Documents, the LC Account
Agreement, and the other Loan Documents, together with all
schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of special counsel to the Credit Parties
dated the Closing Date, addressed to the Agent and the Lenders
and satisfactory in form and scope to Xxxxx Xxxxx Mulliss &
Xxxxx, L.L.P., special counsel to the Agent, substantially in
the form of Exhibit G;
(iii) reliance letters from counsel to the Seller
entitling the Agent and the Lenders to rely on all opinions
delivered in connection with the UTI Acquisition;
(iv) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of each Credit Party certified by its secretary or
assistant secretary as of the Closing Date, approving and
adopting the Loan Documents to be executed by such Person, and
authorizing the execution and delivery thereof;
(v) specimen signatures of officers or other
appropriate representatives executing the Loan Documents on
behalf of each of the Credit Parties, certified by the
secretary or assistant secretary of such Credit Party;
(vi) the Organizational Documents of each of the
Credit Parties certified as of a recent date by the Secretary
of State of its state of organization;
(vii) Operating Documents of each of the Credit
Parties certified as of the Closing Date as true and correct
by its secretary or assistant secretary;
(viii) certificates issued as of a recent date by the
Secretaries of State of the respective jurisdictions of
formation of each of the Credit Parties as to the due
existence and good standing of such Person;
(ix) appropriate certificates of qualification to do
business, good standing and, where appropriate, authority to
conduct business under assumed name, issued in respect of each
of the Credit Parties as of a recent date by the Secretary of
State or comparable official of each jurisdiction in which the
failure to be qualified to do business or authorized so to
conduct business could have a Material Adverse Effect;
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(x) notice of appointment of the initial Authorized
Representative(s);
(xi) a Compliance Certificate dated as of the Closing
Date;
(xii) a Borrowing Base Certificate dated as of the
Closing Date;
(xiii) a certificate of the Vice President of Finance
of the Borrower as to the solvency of the Borrower and its
Subsidiaries after giving effect to the Transaction Documents
and all Advances made on the Closing Date;
(xiv) evidence of all insurance required by the Loan
Documents;
(xv) evidence of receipt by the Borrower of at least
$55,000,000 in cash equity contributions by KRG Group on terms
acceptable to the Agent and the Lenders;
(xvi) evidence of maintenance in UTI of at least
$3,600,000 of additional rollover equity after giving effect
to the UTI Acquisition on terms acceptable to the Agent and
the Lenders;
(xvii) certified copies of the Management Agreement;
(xviii) certified copies of the executed UTI
Acquisition Documents;
(xix) certified copies of the executed Borrower
Subordinated Debt Documents and evidence of receipt of at
least $21,500,000 in proceeds thereof;
(xx) certified copies of the executed Parent Debt
Documents and evidence of receipt by the Borrower of at least
$21,500,000 in proceeds thereof as a cash equity contribution
of the Parent, in addition to the equity contribution
described in clause (xiv), on terms acceptable to the Agent
and the Lenders;
(xxi) an initial Borrowing Notice, if any, and
Interest Rate Selection Notice;
(xxii) evidence of the filing of Uniform Commercial
Code financing statements reflecting the filing in all places
required by applicable law to perfect the Liens of the Agent
under the Security Instruments as a first priority Lien as to
items of Collateral in which a security interest may be
perfected by the filing of financing statements, and such
other documents and/or evidence of other actions as may be
necessary under applicable law to perfect the Liens of the
Agent under the Security Instruments as a first priority Lien
in and to such other Collateral as the Agent may require,
including without limitation:
(i) the delivery by the Borrower of all
certificates evidencing Pledged Interests,
accompanied in each case by duly executed stock
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powers (or other appropriate transfer documents) in
blank affixed thereto; and
(ii) the delivery by the Borrower of
certificates of the Registrar of each partnership or
limited liability company Subsidiary evidencing the
due registration on the registration books of such
Person of the Lien in favor of the Agent conferred
under the Security Instruments;
(xxiii) evidence of payment in full of the UTI
Indebtedness including payoff letters, promissory notes marked
cancelled, UCC-3 Termination Statements, and all other
evidence of cancellation of the liens and Indebtedness arising
under the UTI Indebtedness and termination of the related
credit facilities as the Agent may request.
(xxiv) evidence of payment in full of the Existing
Credit Facility including payoff letters, promissory notes
marked cancelled, UCC-3 Termination Statements, and all other
evidence of cancellation of the liens and Indebtedness arising
under the Existing Credit Facility and termination of the
related credit facilities as the Agent may request.
(xxv) evidence that all fees payable by the Borrower
on the Closing Date to the Agent, BAS, FBRS, Fleet, Dresdner
and the Lenders have been paid in full, including the due
diligence expenses of the Agent and fees and expenses of
counsel for the Agent, Fleet and Dresdner to the extent
invoiced prior to or on the Closing Date (which may include
amounts constituting reasonable estimates of such fees and
expenses incurred or to be incurred in connection with the
transaction; provided that no such estimate shall thereafter
preclude the final settling of accounts as to such fees and
expenses);
(xxvi) Uniform Commercial Code search results showing
only those Liens as are acceptable to the Lenders;
(xxvii) a certificate of the Vice President of
Finance of the Borrower as to the matters described in Section
7.1(b);
(xxviii) copies of all financial statements and the
Ernst & Young Due Diligence Report required under Section 8.6;
(xxix) certified copy of the executed employment
agreement of Mr. A. D. Freed; and
(xxx) such other reports, audits, documents,
instruments, certificates and opinions as the Agent or any
Lender may reasonably request on or prior to the Closing Date
in connection with the consummation of the transactions
contemplated hereby; and
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(b) In the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred a material adverse
change since December 31, 1999 in (A) the business, assets,
operations, prospects or condition (financial or otherwise) of
either (1) UTI or (2) the Parent, the Borrower and its
Subsidiaries, taken as a whole, after giving pro forma effect
to the UTI Acquisition, or (B) in the facts and information
regarding the Parent, the Borrower and its Subsidiaries or UTI
as represented prior to and on the date hereof, including,
without limitation, the absence of any event or circumstance,
change in laws or regulations or action, suit, investigation
or proceeding pending or threatened in any court or before any
governmental authority that purports to affect the Parent or
the Borrower or any of its Subsidiaries, UTI, the UTI
Acquisition or any other transaction contemplated under the
Related Transaction Documents, and that could have or could be
reasonably expected to have a material adverse effect on (I)
the business, assets, operations, prospects or condition
(financial or otherwise), liabilities or management of the
Parent or the Borrower and its Subsidiaries or UTI or of all
the foregoing on a pro forma basis after giving effect to the
UTI Acquisition, or (II) the UTI Acquisition or any other
transaction contemplated under the Related Transaction
Documents or (III) the ability of the Parent or the Borrower
or its Subsidiaries or UTI to perform their respective
obligations under the Related Transaction Documents;
(ii) no litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding shall be
pending or threatened which could reasonably be likely to
result in a Material Adverse Effect or which, if adversely
determined, could materially adversely effect the UTI
Acquisition or the ability of the Parent, the Borrower and its
Subsidiaries or UTI or the Sellers to perform any of their
respective obligations under the Related Transaction Documents
or materially impact the ability of the Lenders to exercise
their rights under the Loan Documents; and
(iii) the Credit Parties shall have received all
approvals, consents and waivers, and shall have made or given
all necessary filings and notices as shall be required to
consummate the transactions contemplated by the Related
Transaction Documents without the occurrence of any default
under, conflict with or violation of (A) any applicable law,
rule, regulation, judgment, injunction, order or decree of any
Governmental Authority or arbitral authority or (B) any
agreement, document or instrument to which any of the Credit
Parties is a party or by which any of them or their properties
is bound;
(iv) the Consolidated Senior Leverage Ratio after
giving pro forma effect to the UTI Acquisition shall not
exceed 3.60 to 1.00 and the Consolidated Leverage Ratio after
giving pro forma effect to the UTI Acquisition shall not
exceed 4.40 to 1.00. The calculations for the pro forma
Consolidated Senior Leverage Ratio and pro forma Consolidated
Leverage Ratio shall be based upon the Borrower's pro-forma
Consolidated
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Senior Debt, pro forma Consolidated Indebtedness and Adjusted
Consolidated EBITDA, each as of April 30, 2000, as set forth
in the pro forma financial statements to be delivered pursuant
to Section 8.6(b);
(v) the Borrower shall have at least $10,000,000
available for Advances under the Revolving Credit Facility
(calculated by reference to the Borrowing Base Certificate
delivered on the Closing Date) immediately after giving effect
to the initial Borrowing Base Certificate and to all Advances
made on the Closing Date and the consummation of the
transactions contemplated by the Related Transaction
Documents; and
(vi) the UTI Acquisition and the incurrence of the
Subordinated Debt shall have occurred substantially
simultaneously with the closing of the credit facilities
hereunder.
7.2 Conditions of Revolving Loans and Letters of Credit. The
obligations of the Lenders to make any Revolving Loans, and the Issuing Bank to
issue (or renew) Letters of Credit and the Swing Line Lender to make Swing Line
Loans, hereunder on or subsequent to the Closing Date are subject to the
satisfaction of the following conditions:
(a) the Agent or, in the case of Swing Line Loans, the Swing
Line Lender, shall have received a Borrowing Notice if required by
Article II;
(b) the representations and warranties of the Credit Parties
set forth in Article VIII and in each of the other Loan Documents shall
be true and correct in all material respects on and as of the date of
such Advance, Swing Line Loan or Letter of Credit issuance or renewal,
with the same effect as though such representations and warranties had
been made on and as of such date, except to the extent that such
representations and warranties expressly relate to an earlier date and
except that the financial statements referred to in Section 8.6(a)
shall be deemed (solely for the purpose of the representation and
warranty contained in such Section 8.6(a) but not for the purpose of
any cross reference to such Section 8.6(a) or to the financial
statements described therein contained in any other provision of
Section 8.6 or elsewhere in Article 8) to be those financial statements
most recently delivered to the Agent and the Lenders pursuant to
Section 9.1 from the date financial statements are delivered to the
Agent and the Lenders in accordance with such Section;
(c) in the case of the issuance of a Letter of Credit, the
Borrower shall have executed and delivered to the Issuing Bank an
Application and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank together with such other instruments and
documents as it shall request;
(d) at the time of (and after giving effect to) each Advance,
Swing Line Loan or the issuance of a Letter of Credit, no Default or
Event of Default specified in Article XI shall have occurred and be
continuing; and
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(e) immediately after giving effect to:
(i) a Revolving Loan, the aggregate
principal balance of all outstanding Revolving Loans for each
Lender shall not exceed such Lender's Revolving Credit
Commitment;
(ii) a Letter of Credit or renewal thereof,
the aggregate principal balance of all outstanding
Participations in Letters of Credit and Reimbursement
Obligations (or in the case of the Issuing Bank, its remaining
interest after deduction of all Participations in Letters of
Credit and Reimbursement Obligations of other Lenders) for
each Lender and in the aggregate shall not exceed,
respectively, (X) such Lender's Letter of Credit Commitment or
(Y) the Total Letter of Credit Commitment;
(iii) a Swing Line Loan, the Swing Line
Outstandings shall not exceed $5,000,000;
(iv) a Revolving Loan, Swing Line Loan or a
Letter of Credit or renewal thereof, the sum of Letter of
Credit Outstandings plus Revolving Credit Outstandings plus
Swing Line Outstandings shall not exceed the lesser of (i) the
Total Revolving Credit Commitment and (ii) the Borrowing Base.
ARTICLE VIII
Representations and Warranties
The Borrower represents and warrants with respect to itself and to its
Subsidiaries and each other Credit Party (which representations and warranties
shall survive the delivery of the documents mentioned herein and the making of
Loans), that:
8.1 Organization and Authority.
(a) The Borrower and each other Credit Party is a corporation,
limited liability company or partnership, as the case may be, duly
organized and validly existing under the laws of the jurisdiction of
its formation;
(b) The Borrower and each other Credit Party (x) has the
requisite power and authority to own its properties and assets and to
carry on its business as now being conducted and as contemplated in the
Related Transaction Documents, and (y) is qualified to do business in
every jurisdiction in which failure so to qualify would have a Material
Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other
Related Transaction Documents to which it is a party;
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(d) Each Credit Party (other than the Borrower) has the power
and authority to execute, deliver and perform each of the Related
Transaction Documents to which it is a party; and
(e) When executed and delivered, each of the Related
Transaction Documents to which any Credit Party is a party will be the
legal, valid and binding obligation or agreement, as the case may be,
of such Credit Party, enforceable against such Credit Party in
accordance with its terms, subject to the effect of any applicable
bankruptcy, moratorium, insolvency, reorganization or other similar law
affecting the enforceability of creditors' rights generally and to the
effect of general principles of equity (whether considered in a
proceeding at law or in equity).
8.2 Related Transaction Documents. The execution, delivery and
performance by each Credit Party of each of the Related Transaction Documents to
which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of such Credit Party required for the lawful execution, delivery
and performance thereof;
(b) do not violate any provisions of (i) any applicable law,
rule or regulation, (ii) any judgment, writ, order, determination,
decree or arbitral award of any Governmental Authority or arbitral
authority binding on such Credit Party or its properties, or (iii) the
Organizational Documents or Operating Documents of such Credit Party;
(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other instrument or
document to which such Credit Party is a party, or by which the
properties or assets of such Credit Party are bound, except as could
not reasonably be expected to have a Material Adverse Effect; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of such Credit Party
or any Subsidiary except Permitted Liens.
8.3 Solvency. Each Credit Party is Solvent after giving effect to the
transactions contemplated by the Related Transaction Documents.
8.4 Subsidiaries and Stockholders. The Parent and the Borrower has no
Subsidiaries other than those Persons listed as Subsidiaries in Schedule 8.4 and
additional Subsidiaries of the Borrower and the Parent created or acquired after
the Closing Date in compliance with Section 9.19; Schedule 8.4 states as of the
date hereof the organizational form of each entity, the authorized and issued
capitalization of the Borrower and each Subsidiary listed thereon, the number of
shares or other equity interests of each class of capital stock or interest
issued and outstanding of the Borrower and each such Subsidiary and the number
and/or percentage of outstanding shares or other equity interest (including
options, warrants and other rights to acquire
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any interest) of each such class of capital stock or other equity interest owned
by the Parent, the Borrower or by any such Subsidiary; the outstanding shares or
other equity interests of the Borrower and each such Subsidiary have been duly
authorized and validly issued and are fully paid and non-assessable; and the
Parent, the Borrower and each such Subsidiary owns beneficially and of record
all the shares and other interests it is listed as owning in Schedule 8.4, free
and clear of any Lien other than Permitted Liens.
8.5 Ownership Interests. Borrower owns no equity interest in any Person
other than the Persons listed in Schedule 8.4, equity investments in Persons not
constituting Subsidiaries permitted under Section 10.7 and additional
Subsidiaries created or acquired after the Closing Date in compliance with
Section 9.19. The Parent owns no interest in any Person other than the Borrower.
8.6 Financial Condition.
(a) The Borrower has furnished to each Lender (i) an audited
consolidated and related consolidating balance sheet of the Parent and
its Subsidiaries as at December 31, 1999 and the notes thereto and the
related consolidated statements of income, stockholders' equity and
cash flows for the Fiscal Year then ended as examined and certified by
Deloitte & Touche [LLP], and unaudited consolidated and consolidating
interim financial statements of the Parent and its Subsidiaries
consisting of a consolidated and consolidating balance sheets and
related consolidated and consolidating statements of income,
stockholders' equity and cash flows, in each case without notes, for
and as of the end of the three month period ending March 31, 2000 and
(ii) an audited consolidated balance sheet of UTI and its subsidiaries
as at December 31, 1999 and the notes thereto and the related
consolidated statements of income, stockholders' equity and cash flows
for the Fiscal Year then ended as examined and certified by Xxxxxx
Xxxxxxxx [LLP], and unaudited consolidated interim financial statements
of UTI and its subsidiaries consisting of a consolidated balance sheet
and related consolidated statements of income, stockholders' equity and
cash flows, in each case without notes, for and as of the end of the
three month period ending March 31, 2000. Except as set forth therein,
such financial statements (including the notes thereto) present fairly
in all material respects the financial condition of UTI and its
subsidiaries, the Parent and the Borrower and its Subsidiaries as of
the end of such Fiscal Year and three month period and results of their
operations and the changes in its stockholders' equity for the Fiscal
Year and interim period then ended, all in conformity with GAAP applied
on a Consistent Basis, subject however, in the case of unaudited
interim statements to year end audit adjustments;
(b) The Borrower has furnished to each Lender pro forma
financial statements of the Borrower and its Subsidiaries giving
historical pro forma effect to the UTI Acquisition consisting of a
consolidated balance sheet and related consolidated statements of
income, stockholders' equity and cash flows, in each case without
notes, for and as of the end of the trailing twelve-month period ending
April 30, 2000;
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(c) The Borrower has furnished to each Lender a copy of the
due diligence report dated May, 2000 prepared by Ernst & Young LLP (the
"Ernst & Young Due Diligence Report");
(d) Since the later of (i) the date of the audited financial
statements delivered pursuant to Section 8.6(a) hereof or (ii) the date
of the audited financial statements most recently delivered pursuant to
Section 9.1(a) hereof, there has not occurred any event, condition or
circumstance which has had or could reasonably be expected to have a
Material Adverse Effect, nor have the businesses or properties of the
Parent, the Borrower or any Subsidiary been materially adversely
affected as a result of any fire, explosion, earth-quake, accident,
strike, lockout, combination of workers, flood, embargo or act of God;
and
(e) Except as set forth in the financial statements referred
to in Section 8.6(a) or in Schedule 8.6 or as permitted by Section
10.5, neither the Parent, the Borrower nor any Subsidiary has incurred,
other than in the ordinary course of business, any material
Indebtedness, Contingent Obligation or other commitment or liability
which remains outstanding or unsatisfied.
8.7 Title to Properties. The Borrower and each of its Subsidiaries and
each other Credit Party has good and marketable title to all its real and
personal properties, subject to no transfer restrictions or Liens of any kind,
except for the transfer restrictions and Liens described in Schedule 8.7 and
Permitted Liens.
8.8 Taxes. Except as set forth in Schedule 8.8, the Parent, the
Borrower and each of its Subsidiaries has filed or caused to be filed all
federal, state and local tax returns which are required to be filed by it and,
except for taxes and assessments being contested in good faith by appropriate
proceedings diligently conducted and against which reserves reflected in the
financial statements described in Section 8.6(a) or Sections 9.1(a) or (b) and
satisfactory to the Parent's independent certified public accountants have been
established, have paid or caused to be paid all taxes as shown on said returns
or on any assessment received by it, to the extent that such taxes have become
due.
8.9 Other Agreements. No Credit Party nor any Subsidiary is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which such Credit Party or any Subsidiary is
a party, which default has, or if not remedied within any applicable
grace period could reasonably be likely to have, a Material Adverse
Effect.
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8.10 Litigation. Except as set forth in Schedule 8.10, there is no
action, suit, investigation or proceeding at law or in equity or by or before
any governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Parent, the Borrower or
any Subsidiary or affecting the Parent, the Borrower or any Subsidiary or any
properties or rights of the Parent, the Borrower or any Subsidiary, which if
adversely determined could reasonably be likely to have a Material Adverse
Effect.
8.11 Securities Regulations. Neither the Borrower nor any agent acting
in its behalf has taken or omitted to take any action which might cause this
Agreement or any of the documents or instruments delivered pursuant hereto to
violate any regulation of the Board or to violate the Securities Exchange Act of
1934, as amended, or the Securities Act of 1933, as amended, or any state
securities laws, in each case as in effect on the date hereof.
8.12 Regulated Company. No Credit Party is (i) an "investment company,"
or an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act of
1940, as amended (15 U.S.C. Section 80a-1, et seq.) or (ii) a "holding company"
or a "subsidiary company" or "affiliate" of a "holding company" as such terms
are defined in the Public Utility Holding Company Act of 1935, as amended. The
application of the proceeds of the Loans and repayment thereof by the Borrower
and the performance by the Borrower and the other Credit Parties of the
transactions contemplated by the Loan Documents will not violate any provision
of said Act, or any rule, regulation or order issued by the Securities and
Exchange Commission thereunder, in each case as in effect on the date hereof.
8.13 Patents, Etc. The Borrower and each other Credit Party owns or has
the right to use, under valid license agreements or otherwise, all material
patents, licenses, franchises, trademarks, trademark rights, trade names, trade
name rights, trade secrets and copyrights necessary to or used in the conduct of
its businesses as now conducted and as contemplated by the Loan Documents,
without known conflict with any patent, license, franchise, trademark, trade
secret, trade name, copyright, other proprietary right of any other Person.
8.14 No Untrue Statement. This Agreement and the other Related
Transaction Documents and each statement, representation, or warranty provided
to the Agent by KRG Capital Group or any Credit Party in connection with the
negotiation or preparation of the Related Transaction Documents contains no
misrepresentation or untrue statement of material fact or omits to state a
material fact necessary, in light of the circumstance under which it was made,
in order to make any such document, warranty, representation or statement
contained therein not misleading.
8.15 No Consents, Etc. Neither the respective businesses or properties
of the Credit Parties or any Subsidiary, nor any relationship among the Credit
Parties or any Subsidiary and any other Person, nor any circumstance in
connection with the execution, delivery and performance of the Related
Transaction Documents and the transactions contemplated thereby, is such as to
require a consent, approval or authorization of, or filing, registration or
qualification with, any Governmental Authority or any other Person on the part
of any Credit Party as a condition to the execution, delivery and performance
of, or consummation of the transactions
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contemplated by the Related Transaction Documents, which, if not obtained or
effected, would be reasonably likely to have a Material Adverse Effect, or if
so, such consent, approval, authorization, filing, registration or qualification
has been duly obtained or effected, as the case may be.
8.16 Employee Benefit Plans.
(a) The Borrower and each ERISA Affiliate is in material
compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder and in compliance with all
Foreign Benefit Laws with respect to all Employee Benefit Plans except
for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired. Each
Employee Benefit Plan that is intended to be qualified under Section
401(a) of the Code has been determined or the Borrower or its
Subsidiaries is in the process of obtaining a determination by the
Internal Revenue Service to be so qualified, each trust related to such
plan has been determined to be exempt under Section 501(a) of the Code,
and each Employee Benefit Plan subject to any Foreign Benefit Law has
received the required approvals by any Governmental Authority
regulating such Employee Benefit Plan. No material liability has been
incurred by the Borrower or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee
Benefit Plan or any Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or payment to a
Multiemployer Plan, (iv) failed to make a required installment or other
required payment under Section 412 of the Code, Section 302 of ERISA or
the terms of such Employee Benefit Plan, or (v) failed to make a
required contribution or payment, or otherwise failed to operate in
compliance with any Foreign Benefit Law regulating any Employee Benefit
Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan, and neither the Borrower nor any ERISA Affiliate has incurred any
unpaid withdrawal liability with respect to any Multiemployer Plan;
(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA, or
the funding of which is regulated by any Foreign Benefit Law did not,
as of the most recent valuation date for each such plan, exceed the
then current value of the assets of such Employee Benefit Plan
allocable
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to such benefits, except where such occurrence could not reasonably be
likely to have a Material Adverse Effect;
(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan which is subject to Title IV of ERISA or the funding of
which is regulated by any Foreign Benefit Law, maintained by the
Borrower or any ERISA Affiliate, has been administered in accordance
with its terms in all material respects and is in compliance in all
material respects with all applicable requirements of ERISA, applicable
Foreign Benefit Law and other applicable laws, regulations and rules;
(f) The consummation of the UTI Acquisition and the Loans and
the issuance of the Letters of Credit provided for herein will not
involve any prohibited transaction under ERISA which is not subject to
a statutory or administrative exemption; and
(g) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan;
8.17 No Default. As of the date hereof, there does not exist any
Default or Event of Default hereunder.
8.18 Environmental Laws. Except as listed on Schedule 8.18, the
Borrower and each Subsidiary is in compliance with all applicable Environmental
Laws and has been issued and currently maintains all required federal, state and
local permits, licenses, certificates and approvals, except as could not
reasonably be expected to have a Material Adverse Effect. Except as listed on
Schedule 8.18, neither the Parent, the Borrower nor any Subsidiary has been
notified of any pending or threatened action, suit, proceeding or investigation,
and neither the Parent, the Borrower nor any Subsidiary knows of any facts,
which might reasonably be expected to form the basis for any such action, suit,
proceeding or investigation (a) arising out of non-compliance by the Parent, the
Borrower or any Subsidiary with any Environmental Laws, (b) which seeks, or
could reasonably be expected to result in the suspension, revocation or
termination of any license, permit or approval necessary for the operation of
the Borrower's or any Subsidiary's business or facilities or for the generation,
handling, storage, treatment or disposal of any Hazardous Materials, or (c)
which seeks to cause or could reasonably be expected to result in any property
of the Borrower or any Subsidiary or other Credit Party being subjected to any
restrictions on ownership, use, occupancy or transferability under any
Environmental Law, in each case (a) through (c) above, which could reasonably be
expected to have a Material Adverse Effect.
8.19 Employment Matters.
(a) None of the employees of the Borrower or any Subsidiary is
subject to any collective bargaining agreement and there are no
strikes, work stoppages, election or decertification petitions or
proceedings, unfair labor charges, equal opportunity proceedings, or
other material labor/employee related controversies or proceedings
pending or, to the best knowledge of the Borrower, threatened against
the Borrower or
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any Subsidiary or between the Borrower or any Subsidiary and any of its
employees, other than employee grievances arising in the ordinary
course of business which could not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect; and
(b) Except to the extent a failure to maintain compliance
would not have a Material Adverse Effect, the Borrower and each
Subsidiary is in compliance in all respects with all applicable laws,
rules and regulations pertaining to labor or employment matters,
including without limitation those pertaining to wages, hours,
occupational safety and taxation and there is neither any pending nor,
to the knowledge of the Borrower, threatened litigation, administrative
proceeding or investigation, in respect of such matters which, if
decided adversely, could reasonably be likely, individually or in the
aggregate, to have a Material Adverse Effect.
8.20 RICO. Neither the Borrower nor any Subsidiary is engaged in or has
engaged in any course of conduct that could subject any of their respective
properties to any Lien, seizure or other forfeiture under any criminal law,
racketeer influenced and corrupt organizations law, civil or criminal, or other
similar laws.
8.21 Parent. The Parent conducts no business other than ownership of
the capital stock of the Borrower and owns no material assets other than the
capital stock of the Borrower.
8.22 Related Transactions. As of the Closing Date, all of the
transactions contemplated under the Related Transaction Documents have been
consummated and the Related Transaction Documents have been duly executed and
delivered by each Credit Party thereto.
8.23 Corporate Individuality. Each of the Parent and the Borrower keeps
separate books and records, maintains separate bank accounts and maintains its
distinct corporate or legal existence separate from the other.
ARTICLE IX
Affirmative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
the Parent and each Subsidiary to:
9.1 Financial Reports, Etc.
(a) As soon as practical and in any event within 90 days after
the end of each Fiscal Year of the Parent, deliver or cause to be
delivered to the Agent and each Lender (i) consolidated and
consolidating balance sheets of the Parent and its Subsidiaries as at
the end of such Fiscal Year, and the notes thereto, and the related
consolidated and consolidating statements of income, stockholders'
equity and cash flows, and the respective notes thereto, for such
Fiscal Year, setting forth (other than for consolidating
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statements) comparative financial statements for the preceding Fiscal
Year, all prepared in accordance with GAAP applied on a Consistent
Basis and containing, with respect to the consolidated financial
statements, opinions of Deloitte & Touche LLP, or other such
independent certified public accountants selected by the Parent and
approved by the Agent, which are unqualified as to the scope of the
audit performed and as to the "going concern" status of the Parent and
the Borrower and without any exception not acceptable to the Required
Lenders, and (ii) a Compliance Certificate as of the end of such Fiscal
Year;
(b) as soon as practical and in any event within 45 days after
the end of each fiscal quarter (except the last fiscal quarter of the
Fiscal Year), deliver to the Agent and each Lender (i) consolidated and
consolidating balance sheets of the Parent and its Subsidiaries as at
the end of such fiscal quarter, and the related consolidated and
consolidating statements of income, stockholders' equity and cash flows
for such fiscal quarter and for the period from the beginning of the
then current Fiscal Year through the end of such reporting period, and
accompanied by a certificate of an Authorized Representative to the
effect that such financial statements present fairly the financial
position of the Parent and its Subsidiaries as of the end of such
fiscal period and the results of their operations and the changes in
their financial position for such fiscal period, in conformity with the
standards set forth in Section 8.6(a) with respect to interim financial
statements and except for notes and subject to year-end adjustments,
and (ii) a Compliance Certificate as of the end of such quarter;
(c) together with each delivery of the financial statements
required by Section 9.1(a)(i), deliver to the Agent and each Lender a
letter from the Parent's and the Borrower's accountants specified in
Section 9.1(a)(i) stating that in performing the audit necessary to
render an opinion on the financial statements delivered under Section
9.1(a)(i), they obtained no knowledge of any Default or Event of
Default by the Borrower in the fulfillment of the terms and provisions
of this Agreement insofar as they relate to financial matters (which at
the date of such statement remains uncured); or if the accountants have
obtained knowledge of such Default or Event of Default, a statement
specifying the nature and period of existence thereof;
(d) promptly upon their becoming available to the Parent or
the Borrower, the Parent or the Borrower shall deliver to the Agent and
each Lender a copy of (i) all regular or special reports or effective
registration statements which the Parent, the Borrower or any
Subsidiary shall file with the Securities and Exchange Commission (or
any successor thereto) or any securities exchange, (ii) any proxy
statement distributed by the Parent, the Borrower or any Subsidiary to
its shareholders, bondholders or the financial community in general,
and (iii) any management letter or other report submitted to the
Parent, the Borrower or any Subsidiary by independent accountants in
connection with any annual, interim or special audit of the Borrower or
any Subsidiary;
(e) not later than the last Business Day of each Fiscal Year,
deliver to the Agent and each Lender a capital and operating expense
budget and consolidated financial
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projections for the Borrower and its Subsidiaries for the next Fiscal
Year, prepared in accordance with GAAP applied on a Consistent Basis;
(g) as soon as practicable and in any event within fifteen
(15) days following the end of each calendar month, deliver to the
Agent and each Lender a Borrowing Base Certificate and an accounts
receivable aging report in form and detail satisfactory to the Agent
and each Lender;
(h) promptly, from time to time, deliver or cause to be
delivered to the Agent and each Lender such other information regarding
the Parent's, the Borrower's and any Subsidiary's operations, business
affairs and financial condition as the Agent or such Lender may
reasonably request;
The Agent and the Lenders are hereby authorized to deliver a copy of
any such financial or other information delivered hereunder to the Lenders (or
any affiliate of any Lender) or to the Agent, to any Governmental Authority
having jurisdiction over the Agent or any of the Lenders pursuant to any written
request therefor or in the ordinary course of examination of loan files, or to
any other Person who shall acquire or consider the assignment of, or acquisition
of any participation interest in, any Obligation permitted by this Agreement.
The Agent and the Lenders shall cause each such Person to become subject to
appropriate confidentiality requirements.
9.2 Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition, make all needed repairs,
replacements and renewals to such properties, and maintain free from Liens,
other than Permitted Liens, all trademarks, trade names, patents, copyrights,
trade secrets, know-how, and other intellectual property and proprietary
information (or adequate licenses thereto), in each case as are reasonably
necessary to conduct its business as currently conducted or as contemplated
hereby, all in accordance with customary and prudent business practices.
9.3 Existence, Qualification, Etc. Except as otherwise expressly
permitted under Section 10.8, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights
and franchises, and maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary except where the failure to so qualify could not
reasonably be likely to have a Material Adverse Effect.
9.4 Regulations and Taxes. Comply in all material respects with all
statutes and governmental regulations, other than those statutes and
governmental regulations the non-compliance with which could not reasonable be
expected to have a Material Adverse Effect, and pay all taxes, assessments,
governmental charges, claims for labor, supplies, rent and any other obligation
which, if unpaid, would become a Lien against any of its properties, except
liabilities being contested in good faith by appropriate proceedings diligently
conducted provided that (i) adequate reserves with respect thereto are
maintained on the books of the applicable Person in
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accordance with GAAP and (ii) any Lien arising in connection with any such
contest shall be permitted to exist to the extent provided in Section 10.4.
9.5 Insurance. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers against loss or damage
by fire and other hazards to the extent and in the manner as are customarily
insured against by similar businesses owning such properties similarly situated
and otherwise as required by the Security Instruments, (b) maintain general
public liability insurance at all times with responsible insurance carriers
against liability on account of damage to persons and property and (c) maintain
insurance under all applicable workers' compensation laws (or in the
alternative, maintain required reserves if self-insured for workers'
compensation purposes) and against loss by reason of business interruption such
policies of insurance to have such limits, deductibles, exclusions, co-insurance
and other provisions providing no less coverages than are maintained by similar
businesses that are similarly situated, such insurance policies to be in form
reasonably satisfactory to the Agent. Each of the policies of insurance
described in this Section 9.5 shall name the Agent for the benefit of the
Lenders as loss payee, mortgagee and additional insured, as applicable, and
shall provide that the insurer shall give the Agent not less than thirty (30)
days' prior written notice before any such policy shall be terminated, lapse or
be altered in any manner.
9.6 True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements.
9.7 Right of Inspection. Permit any Person designated by any Lender or
the Agent to visit and inspect any of the properties, corporate books and
financial reports of the Parent, the Borrower or any Subsidiary and to conduct
field audits and inventory inspections and to discuss its affairs, finances and
accounts with its principal officers and independent certified public
accountants, all at reasonable times, at reasonable intervals and with
reasonable prior written notice. Other than following the occurrence and during
the continuance of a Default or Event of Default, the cost and expense
associated with one such visit, inspection and audit in any Fiscal Year shall be
paid by the Borrower and otherwise shall be borne by the Agent and the Lenders.
In the event of the occurrence and during the continuation of a Default or Event
of Default, the cost and expense of all such visits, inspections and audits
shall be paid by the Borrower.
9.8 Observe all Laws. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
Governmental Authority with respect to the conduct of its business, except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
9.9 Governmental Licenses. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted and as
contemplated by the Loan Documents, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
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9.10 Covenants Extending to Other Persons. Cause the Parent, the
Borrower and each of its Subsidiaries to do with respect to itself, its business
and its assets, each of the things required of the Borrower in Sections 9.2
through 9.9, and 9.19 inclusive.
9.11 Officer's Knowledge of Default. Upon any officer of the Borrower
obtaining knowledge of any Default or Event of Default hereunder or under any
other obligation of the Borrower or any Subsidiary or other Credit Party to any
Lender, or any event, development or occurrence which could reasonably be
expected to have a Material Adverse Effect, cause such officer or an Authorized
Representative to promptly notify the Agent of the nature thereof, the period of
existence thereof, and what action the Borrower or such Subsidiary or other
Credit Party proposes to take with respect thereto.
9.12 Suits or Other Proceedings. Upon any officer of the Borrower
obtaining knowledge of any litigation or other proceedings being instituted
against the Borrower or any Subsidiary or other Credit Party, or any attachment,
levy, execution or other process being instituted against any assets of the
Borrower or any Subsidiary or other Credit Party, making a claim or claims in an
aggregate amount greater than $250,000 not otherwise covered by insurance,
promptly deliver to the Agent written notice thereof stating the nature and
status of such litigation, dispute, proceeding, levy, execution or other
process.
9.13 Notice of Environmental Complaint or Condition. Promptly provide
to the Agent true, accurate and complete copies of any and all notices,
complaints, orders, directives, claims or citations received by the Borrower or
any Subsidiary based on any (a) violation or alleged violation by the Borrower
or any Subsidiary of any applicable Environmental Law; (b) release or threatened
release by the Borrower or any Subsidiary, or by any Person handling,
transporting or disposing of any Hazardous Material on behalf of the Borrower or
any Subsidiary, or at any facility or property owned or leased or operated by
the Borrower or any Subsidiary, of any Hazardous Material, except where
occurring legally; or (c) liability or alleged liability of the Borrower or any
Subsidiary for the costs of cleaning up, removing, remediating or responding to
a release of Hazardous Materials.
9.14 Environmental Compliance. If the Borrower or any Subsidiary shall
receive any letter, notice, complaint, order, directive, claim or citation
alleging that the Borrower or any Subsidiary has violated any Environmental Law,
has released any Hazardous Material, or is liable for the costs of cleaning up,
removing, remediating or responding to a release of Hazardous Materials, the
Borrower and any Subsidiary shall, within the time period permitted and to the
extent required by the applicable Environmental Law or the Governmental
Authority responsible for enforcing such Environmental Law, remove or remedy, or
cause the applicable Subsidiary to remove or remedy, such violation or release
or satisfy such liability, except that this obligation shall not apply during
the period that (a) the Borrower or any Subsidiary is contesting by appropriate
proceedings being diligently conducted the applicability of the Environmental
Law, the fact of such violation or liability or the action required to remove or
remedy such violation and (b) all reserves with respect thereto as may be
required under GAAP, if any, have been made, and (c) no Lien in connection
therewith shall have attached to any property of the Borrower or the applicable
Subsidiary which shall have become enforceable
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against creditors of such Person unless the Borrower obtains insurance for or a
bond over such Lien in an amount satisfactory to the Agent.
9.15 Indemnification. Without limiting the generality of Section 13.9
but subject to the limitations set forth therein, the Borrower hereby agrees to
indemnify and hold the Agent and the Lenders and any affiliate, officer,
director, employee, agent or advisor of any Lender, and their respective
officers, directors, employees and agents, harmless from and against any and all
claims, losses, penalties, liabilities, damages and expenses (including
assessment and cleanup costs and reasonable attorneys', consultants' or other
expert fees, expenses and disbursements) arising directly or indirectly from,
out of or by reason of (a) the violation of any Environmental Law by the
Borrower or any Subsidiary or with respect to any property owned, operated or
leased by the Borrower or any Subsidiary or (b) the handling, storage,
transportation, treatment, emission, release, discharge or disposal of any
Hazardous Materials by or on behalf of the Borrower or any Subsidiary, or on or
with respect to property owned or leased or operated by the Borrower or any
Subsidiary. The provisions of this Section 9.15 shall continue in effect
notwithstanding the occurrence of the Facility Termination Date.
9.16 Further Assurances. At the Borrower's cost and expense, upon
request of the Agent, duly execute and deliver or cause to be duly executed and
delivered, to the Agent such further instruments, documents, certificates,
financing and continuation statements, and do and cause to be done such further
acts that may be reasonably necessary or advisable in the reasonable opinion of
the Agent to carry out more effectively the provisions and purposes of this
Agreement, the Security Instruments and the other Loan Documents.
9.17 Employee Benefit Plans.
(a) With reasonable promptness, and in any event within thirty
(30) days thereof, give notice to the Agent of (a) the establishment of
any new Pension Plan (which notice shall include a copy of such plan),
(b) the commencement of contributions to any Employee Benefit Plan to
which the Borrower or any of its ERISA Affiliates was not previously
contributing, (c) any material increase in the benefits of any existing
Employee Benefit Plan, (d) each funding waiver request filed with
respect to any Pension Plan and all communications received or sent by
the Borrower or any ERISA Affiliate with respect to such request and
(e) the failure of the Borrower or any ERISA Affiliate to make a
required installment or payment under Section 302 of ERISA or Section
412 of the Code (in the case of Employee Benefit Plans regulated by the
Code or ERISA) or under any Foreign Benefit Law (in the case of
Employee Benefit Plans regulated by any Foreign Benefit Law) by the due
date;
(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event or (b) nonexempt "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Employee Benefit Plan or any trust created
thereunder, deliver to the Agent a notice specifying the nature
thereof, what action the Borrower or any ERISA Affiliate has taken, is
taking or proposes to take with respect
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thereto and, when known, any action taken or threatened by the Internal
Revenue Service, the Department of Labor or the PBGC with respect
thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Agent copies of (a) any unfavorable determination letter from the
Internal Revenue Service regarding the qualification of an Employee
Benefit Plan under Section 401(a) of the Code, (b) all notices received
by the Borrower or any ERISA Affiliate of the PBGC's or any
Governmental Authority's intent to terminate any Pension Plan or to
have a trustee appointed to administer any Pension Plan, (c) each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by the Borrower or any ERISA Affiliate with the Internal
Revenue Service with respect to each Employee Benefit Plan and (d) all
notices received by the Borrower or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA. The Borrower
will notify the Agent in writing within five (5) Business Days of the
Borrower or any ERISA Affiliate obtaining knowledge or reason to know
that the Borrower or any ERISA Affiliate has filed or intends to file a
notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA.
9.18 Continued Operations. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted.
9.19 New Subsidiaries. Simultaneously with the acquisition or creation
of any Subsidiary (other than a FSC Subsidiary), cause to be delivered to the
Agent each of the following:
(a) a Facility Guaranty executed by each such Domestic
Subsidiary substantially in the form of Exhibit I;
(b) a Security Agreement and IP Security Agreement of each
such Domestic Subsidiary substantially in the form of Exhibit J and M,
respectively, together with such Uniform Commercial Code financing
statements on Form UCC-1 or otherwise duly executed by such Subsidiary
as "Debtor" and naming the Agent for the benefit of the Agent and the
Lenders as "Secured Party," in form, substance and number sufficient in
the reasonable opinion of the Agent and its special counsel to be filed
in all Uniform Commercial Code filing offices in all jurisdictions in
which filing is necessary or advisable to perfect in favor of the Agent
for the benefit of the Agent and the Lenders the Lien on Collateral
conferred under such Security Instrument to the extent such Lien may be
perfected by Uniform Commercial Code filing;
(b) a Mortgage of each such Domestic Subsidiary substantially
in the form of Exhibit M, together with all related Mortgage Support
Documents, all in form and substance acceptable to the Agent and in
number sufficient in the reasonable opinion of the Agent and its
special counsel to be filed in all filing offices in all jurisdictions
in which filing is necessary or advisable to perfect in favor of the
Agent for the benefit of the Agent and the Lenders the Lien on the
Mortgaged Property subject thereof;
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(c) if the Subsidiary Securities issued by such Subsidiary
that are, or are required to become, Pledged Interests, shall be owned
by a Subsidiary who has not then executed and delivered to the Agent a
Pledge Agreement granting a Lien to the Agent, for the benefit of the
Agent and the Lenders, in such equity interests, a Pledge Agreement
executed by the Subsidiary that directly owns such Subsidiary
Securities substantially in the form attached hereto as Exhibit K (or,
as to the Pledged Interests issued by any Direct Foreign Subsidiary, in
a form acceptable to the Agent), and if such Subsidiary Securities
shall be owned by the Borrower or a Subsidiary who has previously
executed a Pledge Agreement, a Pledge Agreement Supplement in the form
required by such Pledge Agreement pertaining to such Subsidiary
Securities;
(d) if the Pledged Interests issued by such Subsidiary
constitute securities under Article 8 of the Uniform Commercial Code
(i) the certificates representing 100% of such Subsidiary Securities
and (ii) duly executed, undated stock powers or other appropriate
powers of assignment in blank affixed thereto;
(e) (i) Uniform Commercial Code financing statements on form
UCC-1 or otherwise duly executed by the pledgor as "Debtor" and naming
the Agent for the benefit of the Agent and the Lenders as "Secured
Party," in form, substance and number sufficient in the reasonable
opinion of the Agent and its special counsel to be filed in all Uniform
Commercial Code filing offices and in all jurisdictions in which filing
is necessary or advisable to perfect in favor of the Agent for the
benefit of the Agent and the Lenders the Lien on such Subsidiary
Securities and (ii) if the Pledged Interests issued by such Subsidiary
do not constitute securities and such Subsidiary has not elected to
have such interests treated as securities under Article 8 of the
applicable Uniform Commercial Code, a control agreement from the
Registrar of such Subsidiary, in form and substance acceptable to the
Agent and in which the Registrar (1) acknowledges that the pledgor is
at the date of such acknowledgment the sole record, and to its
knowledge, beneficial owner of such Subsidiary Securities, (2)
acknowledges the Lien in favor of the Agent conferred under the Pledge
Agreement and that such Lien will be reflected on the registry for such
Subsidiary Securities, (3) agrees that it will not register any
transfer of such Subsidiary Securities nor acknowledge any Lien in
favor of any other Person on such Subsidiary Securities, without the
prior written consent of the Agent, in each instance, until it receives
notice from the Agent that all Liens on such Collateral in favor of the
Agent for the benefit of the Agent and the Lenders have been released
or terminated, and (4) agrees that upon receipt of notice from the
Agent that an Event of Default has occurred and is continuing and that
the Subsidiary Securities identified in such notice have been
transferred to a transferee identified in such notice, it will duly
record such transfer of Subsidiary Securities on the appropriate
registry without requiring further consent from the pledgor and shall
thereafter treat the transferee as the sole record and beneficial owner
of such Subsidiary Securities pending further transfer, notwithstanding
any contrary instruction received from the pledgor;
(f) a supplement to the appropriate schedule attached to the
appropriate Security Instruments listing the additional Collateral,
certified as true, correct and
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complete by the Authorized Representative (provided that the failure to
deliver such supplement shall not impair the rights conferred under the
Security Instruments in after acquired Collateral);
(g) an opinion of counsel to the Subsidiary dated as of the
date of delivery of the Facility Guaranty and other Loan Documents
provided for in this Section 9.19 and addressed to the Agent and the
Lenders, in form and substance reasonably acceptable to the Agent
(which opinion may include assumptions and qualifications of similar
effect to those contained in the opinions of counsel delivered pursuant
to Section 7.1(a)), to the effect that:
(i) such Subsidiary is duly organized, validly
existing and in good standing in the jurisdiction of its
formation, has the requisite power and authority to own its
properties and conduct its business as then owned and then
conducted and proposed to be conducted and to execute, deliver
and perform the Facility Guaranty and other Loan Documents
described in this Section 9.19 to which such Subsidiary is a
signatory, and is duly qualified to transact business and is
in good standing as a foreign corporation or partnership in
each other jurisdiction in which the character of the
properties owned or leased, or the business carried on by it,
requires such qualification and the failure to be so qualified
would reasonably be likely to result in a Material Adverse
Effect;
(ii) the execution, delivery and performance of the
Facility Guaranty and other Loan Documents described in this
Section 9.19 to which such Subsidiary is a signatory have been
duly authorized by all requisite corporate or partnership
action (including any required shareholder or partner
approval), each of such agreements has been duly executed and
delivered and constitutes the valid and binding agreement of
such Subsidiary, enforceable against such Subsidiary in
accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization
or other similar law affecting the enforceability of
creditors' rights generally and to the effect of general
principles of equity (whether considered in a proceeding at
law or in equity); and
(iii) the Subsidiary Securities of such Subsidiary
are duly authorized, validly issued, fully paid and
nonassessable, and free of any preemptive rights, and the
applicable Security Instrument (including foreign collateral
documents) is effective to create a valid security interest in
favor of the Agent for the benefit of the Agent and the
Lenders in such Subsidiary Securities as constitute Pledged
Interests; and
(iv) the Uniform Commercial Code financing statements
on Form UCC-1 delivered to the Agent by the Subsidiary in
connection with the delivery of the Security Instruments of
such Subsidiary have been duly executed by the Subsidiary and
are in form, substance and number sufficient for filing in all
Uniform Commercial Code filing offices in all jurisdictions in
which filing is necessary to perfect in favor of the Agent for
the benefit of the Agent and the
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Lenders the Lien on Collateral conferred under such Security
Instruments to the extent such Lien may be perfected by
Uniform Commercial Code filing; and
(v) in the case of Direct Foreign Subsidiaries only,
that under the laws of the applicable foreign jurisdiction,
all agreements, notices and other documents that are required
to be executed, delivered, filed or recorded and all other
action required to be taken, within or pursuant to the laws of
such jurisdiction to perfect the Lien conferred in favor of
the Agent under the applicable Security Instrument as against
creditors of and purchasers for value from the holder of the
Pledged Interests has been duly executed, delivered, filed,
recorded or taken, as the case may be; and
(h) current copies of the Organizational Documents and
Operating Documents of such Subsidiary, minutes of duly called and
conducted meetings (or duly effected consent actions) of the Board of
Directors, partners, or appropriate committees thereof (and, if
required by such Organizational Documents, Operating Documents or
applicable law, of the shareholders, members or partners) of such
Subsidiary authorizing the actions and the execution and delivery of
documents described in this Section 9.19.
9.20 Swap Agreements. Within fifteen (15) days of the Closing Date, the
Borrower shall enter into Swap Agreements with a minimum term of three (3) years
in an aggregate notional amount equal to not less than 40% of the Term Loan
Facilities and not more than the Total Term Loan Commitment.
9.21 Use of Proceeds; Regulatory Compliance. The proceeds of the
borrowings made hereunder will be used by the Borrower only for the purposes set
forth in Section 2.5. None of such proceeds will be used, directly or
indirectly, for the purpose of purchasing or carrying any margin stock or for
the purpose of reducing or retiring any Indebtedness which was originally
incurred to purchase or carry margin stock or for any other purpose which
violates or which would be inconsistent with Regulation U (12 CFR Part 221) or
Regulation X (12 CFR Part 224) of the Board. Neither the Borrower nor any agent
acting in its behalf will take any action which might cause this Agreement or
any of the documents or instruments delivered pursuant hereto to violate any
regulation of the Board or to violate the Securities Exchange Act of 1934, as
amended, or the Securities Act of 1933, as amended, or any state securities
laws, in each case as in effect on the date hereof.
9.22 Earnout Equity Contributions. Cause KRG Capital Group to fund
Earnout Equity Contributions in an amount necessary to cause the Consolidated
Senior Leverage and/or the Adjusted Consolidated Fixed Charge Ratio to be at or
under the ratios required pursuant to Section 2.3(b) hereof.
9.23 Maintenance of Corporate Individuality. With respect to the Parent
and the Borrower, maintain separate books and records, maintain separate bank
accounts and maintain each entity's distinct corporate or legal existence.
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ARTICLE X
Negative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, nor will it permit the
Parent or any Subsidiary to:
10.1 Financial Covenants.
(a) Consolidated Leverage Ratio. Permit the Consolidated
Leverage Ratio as of the end of any Four-Quarter Period during the
respective periods set forth below to be greater than that set forth
opposite each such period:
Consolidated
Period Leverage Ratio Must Not Exceed
-------------------------- ------------------------------
Closing Date through
December 30, 2000 4.75 to 1.00
December 31, 2000 through
December 30, 2001 4.50 to 1.00
December 31, 2001 through
December 30, 2002 4.00 to 1.00
December 31, 2002 through
December 30, 2003 3.50 to 1.00
December 31, 2003 through
December 30, 2004 3.00 to 1.00
December 31, 2004 through
December 30, 2005 2.25 to 1.00
From December 31, 2005 and
Thereafter 2.00 to 1.00
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(b) Consolidated Fixed Charge Ratio. Permit as at the end of
any Four-Quarter Period during the respective periods set forth below
the Consolidated Fixed Charge Ratio to be less than that set forth
opposite each such period:
Consolidated
Period Fixed Charge Ratio Must Exceed
-------------------------- ------------------------------
Closing Date through
December 30, 2004 1.20 to 1.00
December 31, 2004
And thereafter 1.25 to 1.00
(c) Consolidated EBITDA. Permit as at the end of any
Four-Quarter Period during the respective periods set forth below
Consolidated EBITDA as of the end of any Four-Quarter Period to be less
than that set forth opposite each such period:
Period Consolidated EBITDA Must Exceed
-------------------------- -------------------------------
Closing Date through
December 30, 2000 $24,000,000
December 31, 2000 through
December 30, 2001 $24,000,000
December 31, 2001 through
December 30, 2002 $26,000,000
December 31, 2002 through
December 30, 2003 $30,000,000
December 31, 2003 through
December 30, 2004 $32,000,000
December 31, 2004
and thereafter $35,000,000
10.2 Acquisitions. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (i) the Person to be (or whose assets
are to be) acquired does not oppose such Acquisition and the line or lines of
business of the Person to be acquired are substantially the same as or
complementary or related to one or more line or lines of business conducted by
the Borrower and its Subsidiaries, (ii) no Default or Event of Default shall
have occurred and be continuing either immediately prior to or immediately after
giving effect to such Acquisition and, if the Cost of Acquisition is in excess
of
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$1,000,000, the Borrower shall have furnished to the Agent (A) pro forma
historical financial statements as of the end of the most recently completed
Fiscal Year of the Borrower and most recent interim fiscal quarter, if
applicable giving effect to such Acquisition and (B) a certificate in the form
of Exhibit H prepared on a historical pro forma basis as of the most recent date
for which financial statements have been furnished pursuant to Section 8.6(a) or
Section 9.1(a) or (b) giving effect to such Acquisition, which certificate shall
demonstrate that no Default or Event of Default would exist immediately after
giving effect thereto, (iii) the Person acquired shall be a wholly-owned
Domestic Subsidiary, or be merged into the Borrower or a wholly-owned Domestic
Subsidiary, immediately upon consummation of the Acquisition (or if assets are
being acquired, the acquiror shall be the Borrower or a wholly-owned
Subsidiary), (iv) if the Cost of Acquisition shall exceed $5,000,000, the
Required Lenders shall consent to such Acquisition in their discretion, and (v)
after giving effect to such Acquisition, the aggregate Costs of Acquisition
incurred in any Fiscal Year (on a noncumulative basis, with the effect that
amounts not incurred in any Fiscal Year may not be carried forward to a
subsequent period) shall not exceed $10,000,000.
10.3 Capital Expenditures. Make or become committed to make Capital
Expenditures, which exceed in the aggregate in any Fiscal Year of the Borrower
described below (on a noncumulative basis, with the effect that amounts not
expended in any Fiscal Year may not be carried forward to a subsequent period),
the amount set forth opposite each such period:
Fiscal Year Ending: Capital Expenditures Not to Exceed:
------------------- -----------------------------------
December 31, 2000 $6,000,000
December 31, 2001 $6,500,000
December 31, 2002 $7,000,000
December 31, 2003
And thereafter $7,500,000
10.4 Liens. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Parent, the Borrower or any Subsidiary, other
than the following (collectively, "Permitted Liens"):
(a) Liens created under the Security Instruments in favor of
the Agent and the Lenders, and otherwise existing as of the date hereof
and as set forth in Schedule 8.7;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently
conducted, which, except as expressly so specified on Schedule 8.7, are
inferior in respect of the Collateral to the Liens conferred under the
Security Instruments, and with respect to which adequate reserves or
other appropriate
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provisions are being maintained in accordance with GAAP and which Liens
are not yet exercisable to effect the sale or seizure of any property
subject thereto;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
arising in the ordinary course of business and in existence less than
90 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted, which, except as expressly so specified on
Schedule 8.7, are inferior in respect of the Collateral to the Liens
conferred under the Security Instruments, and with respect to which
adequate reserves are being maintained in accordance with GAAP and
which Liens are not yet exercisable to effect the sale or seizure of
any property subject thereto;
(d) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security benefits or to secure the
performance of tenders, bids, leases, surety and appeal bonds,
contracts (other than for the repayment of Indebtedness), statutory
obligations and other similar obligations or arising as a result of
progress payments under government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or
any Subsidiary and which do not materially detract from the value of
the property to which they attach or materially impair the use thereof
to the Borrower or any Subsidiary; and
(f) purchase money Liens to secure Indebtedness permitted
under Section 10.5(d) and incurred to purchase fixed assets, provided
such Indebtedness represents not less than 75% of the purchase price of
such assets as of the date of purchase thereof and no property other
than the assets so purchased secures such Indebtedness; and
(g) Liens arising in connection with Capital Leases permitted
under Section 10.5(h); provided that no such Lien shall extend to any
Collateral or to any other property other than the assets subject to
such Capital Leases.
10.5 Indebtedness. Incur, create, assume or permit to exist any
Indebtedness, howsoever evidenced, except:
(a) Indebtedness existing as of the Closing Date as set forth
in Schedule 8.6; provided, however, that none of the instruments and
agreements evidencing or governing such Indebtedness shall be amended,
modified or supplemented after the Closing Date to change any terms of
subordination, repayment or rights of enforcement, conversion, put,
exchange or other rights from such terms and rights as in effect on the
Closing Date;
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(b) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan Document;
(c) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
(d) purchase money Indebtedness described in Section 10.4(f)
not to exceed an aggregate outstanding principal amount at any time of
$425,000;
(e) Indebtedness arising from Rate Hedging Obligations
permitted under Section 10.16;
(f) the Subordinated Debt and Junior Securities (as defined in
the Subordinated Debt Documents);
(g) unsecured intercompany Indebtedness for loans and advances
made by the Borrower or any Guarantor to the Borrower or any Subsidiary
who is a Guarantor, provided that such intercompany Indebtedness is
evidenced by a promissory note or similar written instrument acceptable
to the Agent which provides that such Indebtedness is subordinated to
obligations, liabilities and undertakings of the obligor thereof under
the Loan Documents on terms acceptable to the Agent;
(h) obligations under Capital Leases in an aggregate amount of
up to $425,000;
(i) additional unsecured Indebtedness for Money Borrowed not
otherwise covered by clauses (a) through (h) above, provided that the
aggregate outstanding principal amount of all such other Indebtedness
permitted under this clause (i) shall in no event exceed $425,000 at
any time;
(j) Indebtedness of Foreign Subsidiaries which is non-recourse
to the Borrower or any Guarantor (but which may be supported by a
Letter of Credit) in an aggregate amount not in excess of the foreign
currency equivalent amount of $600,000 at any time based upon the Spot
Rate of Exchange at such time;
(k) Indebtedness extending the maturity of, or renewing,
refunding or refinancing, in whole or in part, Indebtedness incurred
under clauses (a), (d), (e), (f), (g), (h) and (j) of this Section
10.5, provided that the terms of any such extension, renewal, refunding
or refinancing Indebtedness (and of any agreement or instrument entered
into in connection therewith) are no less favorable to the Agent and
the Lenders than the terms of the Indebtedness as in effect prior to
such action, and provided further that (1) the aggregate principal
amount of or interest rate or rates and fees payable on such extended,
renewed, refunded or refinanced Indebtedness shall not be increased by
such action, (2) the group of direct or contingent obligors on such
Indebtedness shall not be expanded as a result of any such action, and
(3) immediately before and immediately
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after giving effect to any such extension, renewal, refunding or
refinancing, no Default or Event of Default shall have occurred and be
continuing; and
(l) The Micro-Coax Obligations, to the extent supported by a
letter of credit in the face amount of at least $3,500,000 issued by a
financial institution acceptable to the Agent and containing terms
acceptable to the Agent.
10.6 Transfer of Assets. Sell, lease, transfer or otherwise dispose of
any assets of the Parent, the Borrower or any Subsidiary other than (a)
dispositions of inventory in the ordinary course of business, (b) dispositions
of equipment which, in the aggregate during any Fiscal Year, have a fair market
value or book value, whichever is less, of $250,000 or less and is not replaced
by equipment having at least equivalent value, (c) Asset Dispositions, the
proceeds of which are applied by the Borrower or its Subsidiaries in accordance
with the Security Instruments, (d) dispositions of property that is
substantially worn, damaged, obsolete and, in the judgment of the Borrower, no
longer best used or useful in its business or that of any Subsidiary, (e)
transfers of assets necessary to give effect to merger or consolidation
transactions permitted by Section 10.8, (f) the disposition of Eligible
Securities in the ordinary course of management of the investment portfolio of
the Borrower and its Subsidiaries, and (g) other Asset Dispositions in the
ordinary course of business, provided that the proceeds therefrom shall be
applied as provided in Section 2.1(e):
10.7 Investments. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except that Borrower may:
(a) maintain investments or invest in securities of any Person
acquired in an Acquisition permitted hereunder;
(b) maintain investments or invest in Eligible Securities;
(c) maintain investments existing as of the date hereof and as
set forth in Schedule 8.4;
(d) maintain investments or invest in accounts receivable
arising and trade credit granted in the ordinary course of business and
any securities received in satisfaction or partial satisfaction thereof
in connection with accounts of financially troubled Persons to the
extent reasonably necessary in order to prevent or limit loss; and
(e) maintain investments or invest in or make or maintain
loans to Subsidiaries; provided, however, investments and loans in
Subsidiaries which are not Guarantors may not exceed $750,000 in
aggregate amount at any time;
(f) maintain investments or invest in or make or maintain
loans to Joint Ventures in an aggregate amount outstanding in excess of
$250,000 at any time;
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(g) make loans between the Borrower and the Guarantors
described in Section 10.5(g);
(h) make other loans, advances and investments in an aggregate
principal amount at any time outstanding not to exceed $250,000.
10.8 Merger or Consolidation. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c) sell,
transfer or lease or otherwise dispose of all or a substantial part of its
assets (other than sales permitted under Section 10.6(e) and (f)); provided,
however, (i) any Subsidiary of the Borrower may merge or transfer all or
substantially all of its assets into or consolidate with the Borrower or any
wholly-owned Domestic Subsidiary of the Borrower, (ii) any Foreign Subsidiary
may merge or transfer all or substantially all of its assets into or consolidate
with any Foreign Subsidiary and (iii) any other Person may merge into or
consolidate with the Borrower or any wholly-owned Domestic Subsidiary provided
the Borrower or such Domestic Subsidiary is the surviving entity.
10.9 Restricted Payments. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing;
provided, however, so long as no Default or Event of Default has occurred and is
continuing and no Default or Event of Default would result therefrom, the
Borrowers and its Subsidiaries may:
(a) repurchase, redeem, retire, convert, exchange or otherwise
acquire from any employee whose employment with the Borrower and any
Subsidiary has been terminated, shares of capital stock issued by the
Borrower or its Subsidiaries to such employee in an aggregate amount
not in excess of $100,000 individually or in an aggregate amount for
all such employees not in excess of $500,000.
(b) pay cash dividends to the Parent in the amount of any
local, state or federal tax liability when due and only to the extent
such amount is immediately paid to the applicable local, state or
federal taxing authority; and
(c) pay cash dividends to the Parent in an aggregate amount in
any Fiscal Year of up to $250,000 for general administrative expenses
of the Parent.
10.10 Transactions with Affiliates. Other than pursuant to the
Management Agreement and the transactions permitted under Sections 10.7 and
10.8, enter into any transaction after the Closing Date, including, without
limitation, the purchase, sale, lease or exchange of property, real or personal,
or the rendering of any service, with any Affiliate of the Borrower, except (a)
that such Persons may render services to the Borrower or its Subsidiaries for
compensation at the same rates generally paid by Persons engaged in the same or
similar businesses for the same or similar services, (b) that the Borrower or
any Subsidiary may render services to such Persons for compensation at the same
rates generally charged by the Borrower or such Subsidiary and (c) in either
case in the ordinary course of business and pursuant to the reasonable
requirements of the Borrower's (or any Subsidiary's) business consistent with
past practice of the Borrower and its Subsidiaries and upon fair and reasonable
terms no less favorable to the Borrower (or any
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Subsidiary) than would be obtained in a comparable arm's-length transaction with
a Person not an Affiliate.
10.11 Compliance with ERISA, the Code and Foreign Benefit Laws. With
respect to any Pension Plan, Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC or to any Governmental Authority; or
(b) permit the present value of all benefit liabilities under
all Pension Plans to exceed the current value of the assets of such
Pension Plans allocable to such benefit liabilities, except where such
occurrence could not reasonably be likely to have a Material Adverse
Effect; or
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) with respect to any
Pension Plan, whether or not waived; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to Section
502(I) of ERISA or a tax pursuant to Section 4975 of the Code may be
imposed; or
(f) permit the establishment of any Employee Benefit Plan
providing post-retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
liability to the Borrower or any ERISA Affiliate or increase the
obligation of the Borrower or any ERISA Affiliate to a Multiemployer
Plan which annual liability or increase, individually or together with
all similar liabilities and increases, is in excess of $500,000; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Laws and all other applicable laws
and the regulations and interpretations thereof.
10.12 Fiscal Year. Change its Fiscal Year.
10.13 Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with a merger or
consolidation permitted pursuant to Section 10.8.
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10.14 Limitations on Sales and Leasebacks. Enter into any arrangement
or arrangements with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property, whether now owned or hereafter acquired
in a single transaction or series of related transactions, which has been or is
to be sold or transferred by the Borrower or any Subsidiary to such Person or to
any other Person to whom funds have been or are to be advanced by such Person on
the security of such property or rental obligations of the Borrower or any
Subsidiary.
10.15 Change in Control. Cause, suffer or permit to exist or occur any
Change of Control.
10.16 Rate Hedging Obligations. Incur any Rate Hedging Obligations or
enter into any agreements, arrangements, devices or instruments relating to Rate
Hedging Obligations, except pursuant to Swap Agreements required under Section
9.20 or as otherwise agreed by the Borrower and the Agent.
10.17 Negative Pledge Clauses. Enter into or cause, suffer or permit to
exist any agreement with any Person other than the Agent and the Lenders
pursuant to this Agreement or any other Loan Documents which prohibits or limits
the ability of any of the Borrower or any Subsidiary to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, provided that the Borrower and any Subsidiary
may enter into such an agreement in connection with, and that applies only to,
property acquired with the proceeds of purchase money Indebtedness permitted
hereunder.
10.18 Change in Accountants. Change the Borrower's independent public
accountants.
10.19 Prepayments, Etc. of Indebtedness.
(a) Prepay, redeem, purchase, defease or otherwise satisfy
prior to the scheduled maturity thereof in any manner, or make any
payment in violation of any subordination terms of, any Indebtedness
other than the prepayments of the Obligations in accordance with the
terms hereof;
(b) Make any payment with respect to any Subordinated Debt
other than payment-in-kind interest with respect to Parent Debt and
cash interest with respect to Borrower Subordinated Debt, all in
accordance with the terms of the Subordinated Debt Documents; or
(c) Amend, modify or change in any manner any term or
condition of any Indebtedness described in Section 10.5(k), Section
10.5(f) or any lease other than in the ordinary course of business so
that the terms and conditions thereof are less favorable to the Agent
and the Lenders or, with respect to covenants, maturities, interest
rates and events of default, more restrictive on the Borrower or the
Parent than the terms of such Indebtedness or leases as of the Closing
Date.
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10.20 Partnerships. Become a general partner in any general or limited
partnership.
10.21 Amendment to Certain Documents. Amend or modify in any material
respect its Organizational Documents or Operating Documents or amend the
Management Agreement so as to directly or indirectly increase the consideration
paid to KRG Capital Group thereunder.
10.22 Use of Proceeds. Use proceeds of any Advance other than in
accordance with Section 2.3.
10.23 Limitations on Upstreaming. Enter into any agreement restricting
or limiting the payment of dividends or other distributions or the transfer of
assets from any Subsidiary to the Borrower or to any other Subsidiary owning
Subsidiary Securities of such Subsidiary.
ARTICLE XI
Events of Default and Acceleration
11.1 Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of Article II or Article III or Article IV,
at maturity, by acceleration or otherwise;
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation or of any fees or other amounts payable to any of the
Lenders or the Agent on the date on which the same shall be due and
payable;
(c) if default shall be made in the performance or observance
of any covenant set forth in Section 9.7, 9.11, 9.12, 9.19, 9.22 or
Article X;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for thirty (30) or more days after the earlier of receipt of
notice of such default by the Authorized Representative from the Agent
or an officer of the Borrower becomes aware of such default, or if a
default shall be made in the performance or observance of, or shall
occur under, any covenant, agreement or provision contained in any of
the other Loan Documents (beyond any applicable grace period, if any,
contained therein) or in any instrument or document evidencing or
creating any obligation, guaranty, or Lien in favor of the Agent or any
of the Lenders or delivered to the Agent or any of the Lenders
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in connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and
effect (other than as expressly provided for hereunder or thereunder or
with the express written consent of the Agent), or if without the
written consent of the Lenders, this Agreement or any other Loan
Document shall be disaffirmed or shall terminate, be terminable or be
terminated or become void or unenforceable for any reason whatsoever
(other than as expressly provided for hereunder or thereunder or with
the express written consent of the Agent);
(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness (other than the Loans and other
Obligations) of the Borrower or any Subsidiary in an amount or Rate
Hedge Value, as applicable, not less than $[375,000] in the aggregate
outstanding, or (ii) a default, which is not waived, in the
performance, observance or fulfillment of any term or covenant
contained in any agreement or instrument under or pursuant to which any
such Indebtedness may have been issued, created, assumed, guaranteed or
secured by the Borrower or any Subsidiary, or (iii) with respect to any
such Rate Hedging Obligation, any termination event shall occur as to
which the Borrower or any Subsidiary is the "affected party" under the
agreement or instrument governing such Rate Hedging Obligation, or (iv)
any other event of default as specified in any agreement or instrument
under or pursuant to which any such Indebtedness may have been issued,
created, assumed, guaranteed or secured by the Borrower or any
Subsidiary, and such default or event of default or termination event
shall continue for more than the period of grace, if any, therein
specified, or such default or event of default or termination event
shall permit the holder of or counterparty to any such Indebtedness (or
any agent or trustee acting on behalf of one or more holders or
counterparties) to accelerate the maturity of any such Indebtedness or
terminate any agreement or instrument governing any such Rate Hedging
Obligation;
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender by or on
behalf of the Borrower or any other Credit Party pursuant to or in
connection with any Loan Document, or otherwise, shall be false or
misleading in any material respect when given;
(g) if the Borrower or any Subsidiary or other Credit Party
shall be unable to pay its debts generally as they become due; file a
petition to take advantage of any insolvency statute; make an
assignment for the benefit of its creditors; commence a proceeding for
the appointment of a receiver, trustee, liquidator or conservator of
itself or of the whole or any substantial part of its property; file a
petition or answer seeking liquidation, reorganization or arrangement
or similar relief under the federal bankruptcy laws or any other
applicable law or statute;
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Subsidiary or other
Credit Party or of the whole or any substantial part of its properties
and such order, judgment or decree continues unstayed and in effect for
a
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period of sixty (60) days, or approve a petition filed against the
Borrower or any Subsidiary or other Credit Party seeking liquidation,
reorganization or arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute of the United
States of America or any state, which petition is not dismissed within
sixty (60) days; or if, under the provisions of any other law for the
relief or aid of debtors, a court of competent jurisdiction shall
assume custody or control of the Borrower or any Subsidiary or other
Credit Party or of the whole or any substantial part of its properties,
which control is not relinquished within sixty (60) days; or if there
is commenced against the Borrower or any Subsidiary or other Credit
Party any proceeding or petition seeking reorganization, arrangement or
similar relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or any state
which proceeding or petition remains undismissed for a period of sixty
(60) days; or if the Borrower or any Subsidiary or other Credit Party
takes any action to indicate its consent to or approval of any such
proceeding or petition;
(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $500,000 is rendered against the Borrower or
any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrower's or Subsidiaries' properties for
any amount in excess of $500,000 in the aggregate; and such judgment,
attachment, injunction or execution remains unpaid, unstayed,
undischarged, unbonded or undismissed for a period of thirty (30) days;
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices), suspend
all or any part of its operations material to the conduct of the
business of the Borrower or such Subsidiary for a period of more than
60 days;
(k) if there shall occur and not be waived an Event of Default
as defined in any of the other Loan Documents;
(l) if the Parent shall (i) conduct any business other than as
currently conducted in connection with its ownership of the capital
stock of the Borrower, (ii) make any investment, acquisition or
expenditure other than for daily operating expenses of its business
presently conducted or (iii) incur any Indebtedness for Money Borrowed
after the Closing Date; provided, however, that no Event of Default
under this clause (l) shall result from any of such activities if
undertaken solely in connection with the acquisitions of entities by
the Parent in which shares of its capital stock are all or a portion of
the consideration paid and upon the consummation of which the acquired
entity is substantially simultaneously merged into or consolidated into
the Borrower or a Domestic Subsidiary of the Borrower in accordance
with the terms of this Agreement;
(o) if A.D. Freed shall for any reason cease to be the acting
Chief Executive Officer or comparable executive officer of the Borrower
without the prior written consent of the Agent for a period in excess
of 120 days without the hiring of a replacement reasonably acceptable
to the Agent and the Lenders;
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then, and in any such event and at any time thereafter, if such Event
of Default or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Agent may, and at the direction of the Required
Lenders shall, declare any applicable obligation of the
Lenders, the Swing Line Lender and the Issuing Bank to make
further Revolving Loans, Swing Line Loans or to issue
additional Letters of Credit terminated, whereupon the
obligation of each Lender to make further Revolving Loans, of
the Swing Line Lender to make further Swing Line Loans, and of
the Issuing Bank to issue additional Letters of Credit,
hereunder shall terminate immediately, and (ii) the Agent
shall at the direction of the Required Lenders, at their
option, declare by notice to the Borrower any or all of the
Obligations to be immediately due and payable, and the same,
including all interest accrued thereon and all other
obligations of the Borrower to the Agent and the Lenders,
shall forthwith become immediately due and payable without
presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything
contained herein or in any instrument evidencing the
Obligations to the contrary notwithstanding; provided,
however, that notwithstanding the above, if there shall occur
an Event of Default under clause (g) or (h) above, then the
obligation of the Lenders to make Revolving Loans, of the
Swing Line Lender to make Swing Line Loans and of the Issuing
Bank to issue Letters of Credit hereunder shall automatically
terminate and any and all of the Obligations shall be
immediately due and payable without the necessity of any
action by the Agent or the Required Lenders or notice to the
Agent or the Lenders;
(B) The Borrower shall, upon demand of the Agent or
the Required Lenders, deposit cash with the Agent in an amount
equal to the amount of any Letter of Credit Outstandings, as
collateral security for the repayment of any future drawings
or payments under such Letters of Credit, and such amounts
shall be held by the Agent pursuant to the terms of the LC
Account Agreement; and
(C) the Agent and each of the Lenders shall have all
of the rights and remedies available under the Loan Documents
or under any applicable law.
11.2 Agent to Act. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
11.3 Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to
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every other such right or remedy contained herein and therein or now or
hereafter existing at law or in equity or by statute, or otherwise.
11.4 No Waiver. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
11.5 Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article XI hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the following order:
(a) the reasonable expenses incurred in connection with
retaking, holding, preserving, processing, maintaining or preparing for
sale, lease or other disposition of, any Collateral, including
reasonable attorney's fees and legal expenses pertaining thereto;
(b) amounts due to the Lenders and the Issuing Bank pursuant
to Sections 4.6(a), 4.6(b), 4.6(c), 4.6(d) and 13.5;
(c) amounts due to the Agent pursuant to Section 4.6(e);
(d) payments of interest on Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to the Swing Line Lender;
(e) payments of principal of Loans, Swing Line Loans and
Reimbursement Obligations, to be applied for the ratable benefit of the
Lenders (with amounts payable in respect of Swing Line Outstandings
being included in such calculation and paid to the Swing Line Lender;
(f) payments of cash amounts to the Agent in respect of
outstanding Letters of Credit pursuant to Section 11.1(B);
(g) amounts due to the Issuing Bank, the Agent and the Lenders
pursuant to Sections 3.2(h), 9.16 and 13.9;
(h) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
appropriate recipients;
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(i) amounts due to any of the Lenders or their affiliates in
respect of Obligations consisting of liabilities under any Swap
Agreement with any of the Lenders or their affiliates on a pro rata
basis according to the amounts owed; and
(j) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
ARTICLE XII
The Agent
12.1 Appointment, Powers, and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in Section 12.5 and
the first sentence of Section 12.6 hereof shall include its affiliates and its
own and its affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or
fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any
condition or to inspect the property (including the books and records)
of any Credit Party or any of its Subsidiaries or affiliates; and
(d) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The term "Agent" as used
in the Loan Documents shall not connote any fiduciary or other implied
obligation under applicable law, and is used solely as a matter of market custom
to connote an administrative relationship between independent contracting
parties.
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12.2 Reliance by Agent. The Agent shall be entitled to rely, and shall
be fully protected in relying, upon any certification, notice, instrument,
writing, or other communication (including, without limitation, any thereof by
telephone or telefacsimile) believed by it to be genuine and correct and to have
been signed, sent or made by or on behalf of the proper Person or Persons, and
upon advice and statements of legal counsel (including counsel for any Credit
Party), independent accountants, and other experts selected by the Agent. The
Agent may deem and treat the payee of any Note as the holder thereof for all
purposes hereof unless and until the Agent receives and accepts an Assignment
and Acceptance executed in accordance with Section 13.1 hereof. As to any action
not expressly mandated by this Agreement, the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding on all of the Lenders; provided, however, that the
Agent shall not be required to take any action unless 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 any such action.
12.3 Defaults. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default." In the
event that the Agent receives such a notice of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to Section 12.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agent shall have received such
directions, 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 in the best interest of the Lenders.
12.4 Rights as Lender. With respect to its Revolving Credit Commitment
and Term Loan Commitment and the Loans made by it and Letters of Credit issued
by it, Bank of America (and any successor acting as Agent) in its capacity as a
Lender hereunder shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as the Agent, and
the term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. Bank of America (and any successor
acting as Agent) and its affiliates may (without having to account therefor to
any Lender) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust, or other
business with any Credit Party or any of its Subsidiaries or affiliates as if it
were not acting as Agent, and Bank of America (and any successor acting as
Agent) and its affiliates may accept fees and other consideration from any
Credit Party or any of its Subsidiaries or affiliates for services in connection
with this Agreement or otherwise without having to account for the same to the
Lenders.
12.5 Indemnification. The Lenders agree to indemnify the Agent and each
of its Affiliates, and their respective officers, employees and agents (each, an
"Agent Indemnitee") (to the extent not reimbursed under Section 13.9 hereof, but
without limiting the obligations of the Borrower under such Section) ratably in
accordance with their respective Revolving Credit Commitments and Term Loan
Commitments, for any and all liabilities, obligations, losses,
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damages, penalties, actions, judgments, suits, costs, expenses (including
attorneys' fees), or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against any Agent Indemnitee (including by
any Lender) in any way relating to or arising out of any Loan Document or the
transactions contemplated thereby or any action taken or omitted by any Agent
Indemnitee under any Loan; provided that no Lender shall be liable for any of
the foregoing to the extent they arise from the gross negligence or willful
misconduct of the Person to be indemnified provided further, however, that no
action or omission taken or occurring at the direction of the Required Lenders
shall constitute either gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Agent promptly
upon demand for its ratable share of any costs or expenses payable by the
Borrower under Section 13.5, to the extent that the Agent is not promptly
reimbursed for such costs and expenses by the Borrower. The agreements contained
in this Section 12.5 shall survive payment in full of the Loans and all other
amounts payable under this Agreement.
12.6 Non-Reliance on Agent and Other Lenders. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Credit Parties and their Subsidiaries and decision to
enter into this Agreement and that it will, independently and without reliance
upon the Agent or any other Lender, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of any
Credit Party or any of its Subsidiaries or affiliates that may come into the
possession of the Agent or any of its affiliates.
12.7 Resignation of Agent. The Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required Lenders and shall
have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Lenders, appoint a successor Agent which shall be a commercial bank
organized under the laws of the United States of America having combined capital
and surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion, privileges, and duties of
the retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations hereunder. After any retiring Agent's resignation hereunder as
Agent, the provisions of this Article XII shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
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ARTICLE XIII
Miscellaneous
13.1 Assignments and Participations.
(a) Each Lender, the Issuing Bank and the Swing Line Lender
may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including, without
limitation, all or a portion of its Loans, its Note, its Revolving
Credit Commitment, its Term Loan A Commitment and its Term Loan B
Commitment); provided, however, that
(i) each such assignment shall be to an
Eligible Assignee;
(ii) except in the case of an assignment to
another Lender or an assignment of all of a Lender's rights
and obligations under this Agreement, any such partial
assignment shall be in an amount at least equal to $5,000,000
or an integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall
be of a constant, and not varying, percentage of all of its
rights and obligations under this Agreement and the Notes
(except that any assignment by the Swing Line Lender shall not
include its rights, benefits or duties as the Issuing Bank or
as the provider of Swing Line Loans); and
(iv) the parties to such assignment shall
execute and deliver to the Agent for its acceptance an
Assignment and Acceptance in the form of Exhibit B hereto,
together with any Notes subject to such assignment and a
processing fee of $4,000; provided, however, such processing
fee shall not be required to be paid to the extent a Lender is
assigning 100% of its interest in the Loans to an affiliate of
such Lender.
Upon execution, delivery, and acceptance of such Assignment and
Acceptance, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, rights, and benefits
of a Lender hereunder and the assigning Lender shall, to the extent of
such assignment, relinquish its rights and be released from its
obligations under this Agreement. Upon the consummation of any
assignment pursuant to this Section, the assignor, the Agent and the
Borrower shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the assignee is
not incorporated under the laws of the United States of America or a
state thereof, it shall deliver to the Borrower and the Agent
certification as to exemption from deduction or withholding of Taxes in
accordance with Section 6.6.
(b) The Agent shall maintain at its address referred to in
Section 13.2 a copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Revolving Credit
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Commitments and Term Loan Commitments of, and principal amount of the
Loans owing to, each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register as
a Lender hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed
by the parties thereto, together with any Notes subject to such
assignment and payment of the processing fee, the Agent shall, if such
Assignment and Acceptance has been completed and is in substantially
the form of Exhibit B hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons
in all or a portion of its rights, obligations or rights and
obligations under this Agreement (including all or a portion of its
Revolving Credit Commitment or either of its Term Loan Commitments or
its Loans); provided, however, that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of
such obligations, (iii) the participant shall be entitled to the
benefit of the yield protection provisions contained in Article VI and
the right of set-off contained in Section 13.3, and (iv) the Borrower
shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this
Agreement, and such Lender shall retain the sole right to enforce the
obligations of the Borrower relating to its Loans and its Notes and to
approve any amendment, modification, or waiver of any provision of this
Agreement (other than amendments, modifications, or waivers decreasing
the amount of principal of or the rate at which interest is payable on
such Loans or Notes, extending any scheduled principal payment date or
date fixed for the payment of interest on such Loans or Notes, or
extending its Revolving Credit Commitment or Term Loan Commitments).
(e) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time assign and pledge all or any
portion of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release
the assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the
Borrower or any of its Subsidiaries in the possession of such Lender
from time to time to assignees and participants (including prospective
assignees and participants).
(g) Whenever in this Agreement any of the parties hereto is
referred to, such reference shall be deemed to include the successors
and permitted assigns of such party and all covenants, provisions and
agreements by or on behalf of the Borrower which are contained in the
Loan Documents shall inure to the benefit of the successors and
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permitted assigns of the Agent, the Lenders, or any of them. The
Borrower may not assign or otherwise transfer to any other Person any
right, power, benefit, or privilege (or any interest therein) conferred
hereunder or under any of the other Loan Documents, or delegate (by
assumption or otherwise) to any other Person any duty, obligation, or
liability arising hereunder or under any of the other Loan Documents,
and any such purported assignment, delegation or other transfer shall
be void.
13.2 Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which
mailed to such party, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address or telefacsimile number, as appropriate, set forth below
or such other address or number as such party shall specify by notice hereunder:
(a) if to the Borrower:
Medical Device Manufacturing, Inc.
000 Xxxx 0xx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
KRG Capital Partners, L.L.C.
0000 Xxxxxxxx Xxxxxx
Xxxxx Xxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
Xxxxx & Xxxxxxx L.L.P.
0000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
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(b) if to the Agent for notice of borrowing:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
if to the Agent for notices other than borrowing:
Bank of America, N.A.
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
with a copy to:
Bank of America, N.A.
0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Telefacsimile: (000) 000-0000
(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance;
(d) if to any other Credit Party, at the address set forth on
the signature page of the Facility Guaranty or Security Instrument
executed by such Credit Party, as the case may be.
13.3 Right of Set-off; Adjustments.
(a) Upon the occurrence and during the continuance of any
Event of Default, each Lender (and each of its affiliates) is hereby
authorized at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its
affiliates) to or for the credit or the account of the Borrower against
any and all of the obligations of the Borrower now or hereafter
existing under this Agreement and the Note held by such Lender,
irrespective of whether such Lender shall have made any demand under
this
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Agreement or such Note and although such obligations may be unmatured.
Each Lender agrees promptly to notify the Borrower 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. The rights of each Lender under this Section
13.3 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of the Loans owing to it, or
interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, or otherwise), in a greater
proportion than any such payment to or collateral received by any other
Lender, if any, in respect of such other Lender's Loans owing to it, or
interest thereon, such benefitted Lender shall purchase for cash from
the other Lenders a participating interest in such portion of each such
other Lender's Loans owing to it, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as
shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds ratably with each of
the Lenders; provided, however, that if all or any portion of such
excess payment or benefits is thereafter recovered from such benefitted
Lender or is repaid in whole or in part by such benefitted Lender in
good faith settlement of a pending or threatened avoidance claim, such
purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery or settlement payment, but
without interest. The Borrower agrees that any Lender so purchasing a
participation from a Lender pursuant to this Section 13.3 may, to the
fullest extent permitted by law, exercise all of its rights of payment
(including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of the Borrower in the
amount of such participation.
13.4 Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
Revolving Credit Commitment or Term Loan Commitment hereunder or the Borrower
has continuing obligations hereunder unless otherwise provided herein.
13.5 Expenses. The Borrower agrees to pay on demand all costs and
expenses of the Agent, Fleet and Dresdner in connection with the syndication,
preparation, execution, delivery, administration, modification, and amendment of
this Agreement, the other Loan Documents, and the other documents to be
delivered hereunder, including, without limitation, the reasonable fees and
expenses of counsel for the Agent (including the cost of internal counsel) with
respect thereto and with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents. The Borrower further agrees to pay on
demand all costs and expenses of the Agent and the Lenders, if any (including,
without limitation, reasonable attorneys' fees and expenses and the cost of
internal counsel), in connection with the enforcement (whether through
negotiations, legal proceedings, or otherwise) of the Loan Documents and the
other documents to be delivered hereunder.
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13.6 Amendments and Waivers. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower or other applicable Credit
Party to such Loan Document and either the Required Lenders or (as to Loan
Documents other than the Credit Agreement) the Agent on behalf of the Required
Lenders (and, if Article XII or the rights or duties of the Agent are affected
thereby, by the Agent); provided that no such amendment or waiver shall, unless
signed by all the Lenders, (i) increase the Revolving Credit Commitments or Term
Loan Commitments of the Lenders, the Total Revolving Credit Commitment or the
Total Term Loan Commitment (ii) reduce the principal of or rate of interest on
any Loan or any fees or other amounts payable hereunder, (iii) postpone any date
fixed for the payment of any scheduled installment of principal of or interest
on any Loan or any fees or other amounts payable hereunder or for termination of
any Revolving Credit Commitment or Term Loan Commitment, or (iv) change the
percentage of the Revolving Credit Commitment or Term Loan Commitment or of the
unpaid principal amount of the Notes, or the number of Lenders, which shall be
required for the Lenders or any of them to take any action under this Section
13.6 or any other provision of this Agreement or (v) release any Guarantor or
all or substantially all of the Collateral except as expressly contemplated in
the Loan Documents as in effect on the Closing Date or (vi) amend, supplement or
replace any term or provision of this Section 13.6; and provided, further, that
no such amendment or waiver that affects the rights, privileges or obligations
of the Swing Line Lender as provider of Swing Line Loans, shall be effective
unless signed in writing by the Swing Line Lender or that affects the rights,
privileges or obligations of the Issuing Bank as issuer of Letters of Credit,
shall be effective unless signed in writing by the Issuing Bank;
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
13.7 Counterparts; Facsimile Signatures. This Agreement may be executed
in any number of counterparts, each of which when so executed and delivered
shall be deemed an original, and it shall not be necessary in making proof of
this Agreement to produce or account for more than one such fully-executed
counterpart. Signatures on communications and other documents may be transmitted
by facsimile only with the consent of the Agent in its sole and absolute
discretion in each instance. The effectiveness of any such signatures accepted
by the Agent shall, subject to applicable law, have the same force and effect as
manual signatures and shall be binding on all parties. The Agent may also
require that any such signature be confirmed by a manually-signed hardcopy
thereof. Each party hereto hereby adopts as an original executed signature page
each signature page hereafter furnished by such party to the Agent (or an agent
of the Agent) bearing (with the consent of the Agent) a facsimile signature by
or on behalf of such party. Nothing contained in this Section shall limit the
provisions of Section 12.2.
13.8 Termination. This Agreement shall terminate on the Facility
Termination Date, except that (a) those provisions which by the express terms
hereof continue in effect notwithstanding the Facility Termination Date, and (b)
obligations in the nature of continuing indemnities or expense reimbursement
obligations not yet due and payable, shall continue in
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effect. Notwithstanding the foregoing, if after receipt of any payment of all or
any part of the Obligations, the Agent, the Issuing Bank, the Swing Line Lender
or any Lender is for any reason compelled to surrender such payment to any
Person because such payment is determined to be void or voidable as a
preference, impermissible setoff, a diversion of trust funds or for any other
reason or elects to repay any such amount in good faith settlement of a pending
or threatened avoidance claim, (i) this Agreement (including the provisions
pertaining to Participations in Letters of Credit, Reimbursement Obligations and
Swing Line Loans) shall continue in full force (or be reinstated, as the case
may be) and the Borrower shall be liable to, and shall indemnify and hold the
Agent, the Issuing Bank, the Swing Line Lender or such Lender harmless for, the
amount of such payment surrendered until the Agent, the Issuing Bank, the Swing
Line Lender or such Lender shall have been finally and irrevocably paid in full,
and (ii) in the event any portion of any amount so required to be surrendered by
the Agent or the Issuing Bank or the Swing Line Lender shall have been
distributed to the Lenders, the Lenders shall promptly repay such amounts to the
Agent or the Issuing Bank or the Swing Line Lender on demand therefor. The
provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Agent, the
Issuing Bank, the Swing Line Lender or the Lenders in reliance upon such
payment, and any such contrary action so taken shall be without prejudice to the
Agent's, the Issuing Bank's, the Swing Line Lender's or the Lenders' rights
under this Agreement and shall be deemed to have been conditioned upon such
payment having become final and irrevocable.
13.9 Indemnification; Limitation of Liability.
(a) The Borrower agrees to indemnify and hold harmless the
Agent and each Lender and each of their affiliates and their respective
officers, directors, employees, agents, and advisors (each, an
"Indemnified Party") from and against any and all claims, damages,
losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation, or
proceeding or preparation of defense in connection therewith) the Loan
Documents, any of the transactions contemplated herein or the actual or
proposed use of the proceeds of the Loans, except to the extent such
claim, damage, loss, liability, cost, or expense is found in a final,
non-appealable judgment by a court of competent jurisdiction to have
resulted from such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 13.9 applies, such
indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors,
shareholders or creditors or an Indemnified Party or any other Person
or any Indemnified Party is otherwise a party thereto and whether or
not the transactions contemplated hereby are consummated. The Borrower
agrees that no Indemnified Party shall have any liability (whether
direct or indirect, in contract or tort or otherwise) to it, any of its
Subsidiaries, any Guarantor, or any security holders or creditors
thereof arising out of, related to or in connection with the
transactions contemplated herein, except to the extent that such
liability is found in a final non-appealable judgment by a court of
competent jurisdiction to have directly resulted from such Indemnified
Party's gross negligence or willful misconduct. The
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Borrower agrees not to assert any claim against the Agent, any Lender,
any of their affiliates, or any of their respective directors,
officers, employees, attorneys, agents, and advisers, on any theory of
liability, for special, indirect, consequential, or punitive damages
arising out of or otherwise relating to the Loan Documents, any of the
transactions contemplated herein or the actual or proposed use of the
proceeds of the Loans.
(b) agreements and obligations of the Borrower contained in
this Section 13.9 shall continue in effect notwithstanding the Facility
Termination Date.
13.10 Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
13.11 Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto (except that those
provisions (if any) which by the express terms of the commitment letter dated as
of May 16, 2000, executed by Bank of America, BAS, FBRS, Fleet and Dresdner and
accepted by the Borrower, survive the closing of the Revolving Credit Facility,
Letter of Credit Facility and Term Loan Facilities, shall survive and continue
in effect).
13.12 Agreement Controls. In the event that any term of any of the Loan
Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
13.13 Usury Savings Clause. Notwithstanding any other provision herein,
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
applicable law shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate (as
defined below), the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect. In addition, if when the Loans made hereunder are repaid in full the
total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the Borrower shall
pay to the Agent an amount equal to the difference between the amount of
interest paid and the amount of interest which would have been paid if the
Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in
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excess of the Highest Lawful Rate, then any such excess shall be cancelled
automatically and, if previously paid, shall at such Lender's option be applied
to the outstanding amount of the Loans made hereunder or be refunded to the
Borrower. As used in this paragraph, the term "Highest Lawful Rate" means the
maximum lawful interest rate, if any, that at any time or from time to time may
be contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
13.14 Payments. All principal, interest, and other amounts to be paid
by the Borrower under this Agreement and the other Loan Documents shall be paid
to the Agent at the Principal Office in Dollars and in immediately available
funds, without setoff, recoupment, deduction or counterclaim. Subject to the
definition of "Interest Period" herein, whenever any payment under this
Agreement or any other Loan Document shall be stated to be due on a day that is
not a Business Day, such payment may be made on the next succeeding Business
Day, and such extension of time in such case shall be included in the
computation of interest and fees, as applicable, and as the case may be.
13.15 Governing Law; Waiver of Jury Trial.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN
THOSE SECURITY INSTRUMENTS WHICH EXPRESSLY PROVIDE THAT THEY SHALL BE
GOVERNED BY THE LAWS OF ANOTHER JURISDICTION) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH
STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN THE XXXXXX XX XXX
XXXX, XXXXX XX XXX XXXX, XXXXXX XXXXXX OF AMERICA AND, BY THE EXECUTION
AND DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN,
OR TO THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY
SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER
HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID)
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TO THE ADDRESS OF THE BORROWER PROVIDED IN SECTION 13.2, OR BY ANY
OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN
EFFECT IN THE STATE OF NEW YORK.
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL
PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE
COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S
PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY
THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE BORROWER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT AND EXPRESSLY
WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR PROCEEDING, OBJECTION TO
THE EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY ANY SUCH OTHER
COURT OR COURTS WHICH NOW OR HEREAFTER MAY BE AVAILABLE UNDER
APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.
(f) THE BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
13.16 Judgment Currency. The Borrower, the Agent and each Lender hereby
agree that if, in the event that a judgment is given in relation to any sum due
to the Agent or any Lender hereunder, such judgment is given in a currency (the
"Judgment Currency") other than that in which such sum was originally
denominated (the "Original Currency"), the Borrower agrees to indemnify the
Agent or such Lender, as the case may be, to the extent that the amount of the
Original Currency which could have been purchased by the Agent in accordance
with normal banking procedures on the Business Day following receipt of such sum
is less than the sum which could have been so purchased by the Agent had such
purchase been made on the day on which such judgment was given or, if such day
is not a Business Day, on the Business Day immediately preceding the giving of
such judgment. The agreements in this Section 13.16 shall survive payment of the
Facility Termination Date.
[Signatures on following pages]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
MEDICAL DEVICE MANUFACTURING, INC.
WITNESS:
/s/ AUTHORIZED SIGNATURE By: /s/ XXXX X. XXXXXXX
----------------------------- -------------------------------------
Name: Xxxx X. Xxxxxxx
----------------------------- -------------------------------------
Title: President & CEO
-------------------------------------
BANK OF AMERICA, N.A.,
as Agent for the Lenders
By: /s/ XXXXX XXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------------
Title: Principal
-------------------------------------
FLEET NATIONAL BANK
as Syndication Agent for the Lenders
By: /s/ XXXXX ALTO
-------------------------------------
Name: Xxxxx Alto
-------------------------------------
Title: Vice President
-------------------------------------
DRESDNER BANK AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH.
as Documentation Agent for the Lenders
By: /s/ XXXX X. XXXXX
-------------------------------------
Name: Xxxx X. Xxxxx
-------------------------------------
Title: Senior Vice President
-------------------------------------
By: /s/ AUTHORIZED SIGNATURE
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
000
XXXX XX XXXXXXX, N.A.
By: /s/ XXXXX XXXXXXX
-------------------------------------
Name: Xxxxx Xxxxxxx
-------------------------------------
Title: Principal
-------------------------------------
Lending Office for Base Rate Loans:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telephone:(704) 386-
Telefacsimile:(000) 000-0000
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 000000000
Account No.: ________________________
Reference: ________________________
Attention: Agency Services
Lending Office for Eurodollar Rate Loans:
Bank of America, N.A.
000 Xxxxx Xxxxx Xxxxxx, 15th Floor
NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Agency Services
Telephone:(704) 386-____
Telefacsimile:(000) 000-0000
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 000000000
Account No.:
Reference: _______________________
Attention: Agency Services___________
