EXHIBIT 26
AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
March 29, 1999, is entered into by and among:
(1) ADAC LABORATORIES, a California corporation ("BORROWER");
(2) Each of the financial institutions from time to time
listed in SCHEDULE I hereto, as amended from time to time (such
financial institutions to be referred to herein collectively as the
"LENDERS"); and
(3) ABN AMRO BANK N.V., a Netherlands public company acting
through its San Francisco International Branch, as agent for the
Lenders (in such capacity, "AGENT").
RECITALS
A. Borrower, Agent and certain of the Lenders are parties to
that certain Credit Agreement, dated as of July 31, 1996 (as amended, the
"EXISTING CREDIT AGREEMENT"), pursuant to which such Lenders have provided to
Borrower certain credit facilities upon the terms and subject to the conditions
set forth therein.
B. Borrower has requested Agent and such Lenders to amend the
Existing Credit Agreement in certain respects, including without limitation, to
add a new Person as a Lender and to increase the amount available for borrowing
under the Existing Credit Agreement.
C. Agent, such Lenders and the new Lender have agreed to
amend the Existing Credit Agreement upon the terms and subject to the
conditions set forth herein. For convenience of reference, the parties hereto
wish to restate the Existing Credit Agreement as so amended in its entirety.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the
mutual covenants herein contained, the parties hereto hereby agree that the
Existing Credit Agreement shall be amended and restated as of the date hereof to
read in its entirety as follows
SECTION I. INTERPRETATION.
1.1. DEFINITIONS. Unless otherwise indicated in this Agreement or any
other Credit Document, each term set forth below, when used in this Agreement or
any other Credit Document, shall have the respective meaning given to that term
below or in the provision of this Agreement or other document, instrument or
agreement referenced below.
"ABN" shall mean ABN AMRO Bank N.V., a Netherlands public
company.
"ACQUISITION IN-PROCESS R&D CHARGES" shall mean non-recurring
charges, not to exceed $50,000,000 (pre-tax) in the aggregate, to be
taken by Borrower as a result of write-offs of in process research and
development expenses and charges incurred in connection with the
consummation of acquisitions by Borrower otherwise permitted pursuant
to SUBPARAGRAPH 5.02(d).
"AFFILIATE" shall mean, with respect to any Person, (a) each
Person that, directly or indirectly, owns or controls, whether
beneficially or as a trustee, guardian or other fiduciary, five percent
(5%) or more of any class of Equity Securities of such Person, (b) each
Person that controls, is controlled by or is under common control with
such Person or any Affiliate of such Person or (c) each of such
Person's officers, directors, joint venturers and partners; PROVIDED,
HOWEVER, that in no case shall Agent or any Lender be deemed to be an
Affiliate of Borrower or any of its Subsidiaries for purposes of this
Agreement. For the purpose of this definition, "control" of a Person
shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of its management or policies, whether
through the ownership of voting securities, by contract or otherwise.
"AGENT" shall have the meaning given to that term in CLAUSE
(3) OF THE INTRODUCTORY PARAGRAPH.
"AGENT'S FEE LETTER" shall mean the letter agreement dated as
of March 29, 1999 between Borrower and Agent.
"AGREEMENT" shall mean this Amended and Restated Credit Agreement.
"AMENDED AND RESTATED GUARANTY" shall have the meaning given
to that term in SUBPARAGRAPH 2.12(a).
"AMENDED AND RESTATED NOTES" shall have the meaning given to
that term in SUBPARAGRAPH 2.06(a).
"APPLICABLE LENDING OFFICE" shall mean, with respect to any
Lender, (a) initially, its office designated as such in SCHEDULE I (or,
in the case of any Lender which becomes a Lender by an assignment
pursuant to SUBPARAGRAPH 8.05(c), its office designated as such in the
applicable Assignment Agreement) and (b) subsequently, such other
office or offices as such Lender may designate to Agent as the office
at which such Lender's Loans will thereafter be maintained and for the
account of which all payments of principal of, and interest on, such
Lender's Loans will thereafter be made.
"APPLICABLE MARGIN" shall mean, with respect to any Loan at
any time, the per annum margin which is determined pursuant to the
Pricing Grid and added to the Base Rate or LIBO Rate, as the case may
be, for such Loan; PROVIDED, HOWEVER, that each Applicable Margin
determined pursuant to the Pricing Grid shall be increased by two
percent (2.00%) on the date an Event of Default occurs and shall
continue at such increased rate unless and until such Event of Default
is waived in accordance with this
Agreement.
"ASSIGNEE LENDER" shall have the meaning given to that term
in SUBPARAGRAPH 8.05(c).
"ASSIGNMENT" shall have the meaning given to that term in
SUBPARAGRAPH 8.05(c).
"ASSIGNMENT AGREEMENT" shall have the meaning given to that
term in SUBPARAGRAPH 8.05(c).
"ASSIGNMENT EFFECTIVE DATE" shall have, with respect to
each Assignment Agreement, the meaning set forth therein.
"ASSIGNOR LENDER" shall have the meaning given to that term
in SUBPARAGRAPH 8.05(c).
"BASE RATE" shall mean, on any day, the greater of (a) the
Prime Rate in effect on such date and (b) the Federal Funds Rate for such day
PLUS one-half percent (0.50%).
"BASE RATE LOAN" shall mean, at any time, a Loan which then
bears interest as provided in CLAUSE (i) OF SUBPARAGRAPH 2.01(c).
"BNP" shall mean Banque National de Paris, acting through
its San Xxxxxxxxx Xxxxxx.
"BORROWER" shall have the meaning given to that term in
CLAUSE (1) OF THE INTRODUCTORY PARAGRAPH.
"BORROWER NOTE GUARANTIES" shall mean, collectively, all
guaranties executed by Borrower in favor of ABN, Sanwa, BNP or UBOC in
connection with sales by Borrower to such Person of promissory notes or other
instruments of indebtedness owed to Borrower and all other documents,
instruments and agreements executed by Borrower and delivered to such Person
in connection with such sales.
"BORROWING" shall mean a borrowing by Borrower consisting
of the Loans made by each of the Lenders on the same date and of the same
Type pursuant to a single Notice of Borrowing.
"BUSINESS DAY" shall mean any day on which (a) commercial
banks are not authorized or required to close in San Francisco, California or
New York, New York and (b) if such Business Day is related to a LIBOR Loan,
dealings in Dollar deposits are carried out in the London interbank market.
"CAPITAL ADEQUACY REQUIREMENT" shall have the meaning given to
that term in SUBPARAGRAPH 2.09(d).
"CAPITAL ASSET" shall mean, with respect to any Person, any
tangible fixed or
capital asset owned or leased (in the case of a Capital Lease) by such
Person, or any expense incurred by such Person that is required by GAAP to be
reported as a non-current asset on such Person's balance sheet.
"CAPITAL EXPENDITURES" shall mean, with respect to any
Person and any period, all amounts expended by such Person during such period
for the acquisition of Capital Assets (including all amounts paid or accrued
on Capital Assets and other Indebtedness incurred or assumed to acquired
Capital Assets but excluding Capital Assets acquired as a result of a
consolidation or merger with any other Person or the acquisition of
substantially all of the assets of any other Person).
"CAPITAL LEASES" shall mean any and all lease obligations
that, in accordance with GAAP, are required to be capitalized on the books of
a lessee.
"CASH EQUIVALENTS" shall mean:
(a) Direct obligations of, or obligations the
principal and interest on which are unconditionally guaranteed
by, the United States of America or obligations of any agency
of the United States of America to the extent such obligations
are backed by the full faith and credit of the United States
of America, in each case maturing within one year from the
date of acquisition thereof;
(b) Certificates of deposit maturing within one year
from the date of acquisition thereof issued by a commercial
bank or trust company organized under the laws of the United
States of America or a state thereof or that is a Lender,
provided that (A) such deposits are denominated in Dollars,
(B) such bank or trust company has capital, surplus and
undivided profits of not less than $100,000,000 and (C) such
bank or trust company has certificates of deposit or other
debt obligations rated at least A-1 (or its equivalent) by
Standard and Poor's Ratings Group or P-1 (or its equivalent)
by Xxxxx'x Investors Service, Inc.;
(c) Open market commercial paper maturing within 270
days from the date of acquisition thereof issued by a
corporation organized under the laws of the United States of
America or a state thereof, provided such commercial paper is
rated at least A-1 (or its equivalent) by Standard and Poor's
Ratings Group or P-1 (or its equivalent) by Xxxxx'x Investors
Service, Inc.;
(d) Any repurchase agreement entered into with a
commercial bank or trust company organized under the laws of
the United States of America or a state thereof or that is a
Lender, provided that (A) such bank or trust company has
capital, surplus and undivided profits of not less than
$100,000,000, (B) such bank or trust company has certificates
of deposit or other debt obligations rated at least A-1 (or
its equivalent) by Standard and Poor's Ratings Group or P-1
(or its equivalent) by Xxxxx'x Investors Service, Inc., (C)
the repurchase obligations of such bank or trust company under
such repurchase agreement are fully secured by a perfected
security interest in a security or instrument of the type
described in
CLAUSE (i), (ii) OR (iii) above and (D) such security or
instrument so securing the repurchase obligations has a fair
market value at the time such repurchase agreement is entered
into of not less than 100% of such repurchase obligations; and
(e) Other Investments permitted from time to time
under Borrower's corporate investment policy as it exists on
the date of this Agreement and as it may be amended from time
to time with the approval of Agent.
"CHANGE OF CONTROL" shall mean, with respect to Borrower, the
occurrence of any of the following events: (a) any person or group of
persons (within the meaning of Section 13 or 14 of the Securities
Exchange Act of 1934, as amended) shall (i) acquire beneficial
ownership (within the meaning of Rule 13d-3 promulgated by the
Securities and Exchange Commission under the Securities Exchange Act of
1934, as amended) of forty percent (40%) or more of the outstanding
Equity Securities of Borrower entitled to vote for members of the board
of directors or (ii) acquire all or substantially all of the assets of
Borrower and its Subsidiaries taken as a whole or (b) during any period
of twelve (12) consecutive calendar months, individuals who are
directors of Borrower on the first day of such period ("Initial
Directors") and any directors of Borrower who are specifically approved
by two-thirds of the Initial Directors and previously-approved
Directors shall cease to constitute a majority of the Board of
Directors of Borrower before the end of such period.
"CHANGE OF LAW" shall have the meaning given to that term in
SUBPARAGRAPH 2.09(b).
"CLOSING DATE" shall mean the Business Day, not later than
March 31, 1999, that each of the conditions set forth in PARAGRAPH 3.01
and SCHEDULE 3.01 has been satisfied by Borrower or waived in writing
by Agent on behalf of the Lenders.
"COMMITMENT" shall mean, with respect to any Lender at any
time, such Lender's Proportionate Share at such time of the Total
Commitment at such time.
"COMMITMENT FEE PERCENTAGE" shall mean, with respect to the
Unused Commitment at any time, the per annum rate which is determined
pursuant to the Pricing Grid and used to calculate the Commitment Fees.
"COMMITMENT FEES" shall have the meaning given to that term in
SUBPARAGRAPH 2.03(b).
"CONTINGENT OBLIGATION" shall mean, with respect to any
Person, (a) any Guaranty Obligation of that Person; and (b) any direct
or indirect obligation or liability, contingent or otherwise, of that
Person (i) in respect of any Surety Instrument issued for the account
of that Person or as to which that Person is otherwise liable for
reimbursement of drawings or payments, (ii) to purchase any materials,
supplies or other property from, or to obtain the services of, another
Person if the relevant contract or other related document
or obligation requires that payment for such materials, supplies or
other property, or for such services, shall be made regardless of
whether delivery of such materials, supplies or other property is ever
made or tendered, or such services are ever performed or tendered, or
(iii) in respect to any Rate Contract that is not entered into in
connection with a bona fide hedging operation that provides offsetting
benefits to such Person. The amount of any Contingent Obligation shall
(subject, in the case of Guaranty Obligations, to the last sentence of
the definition of "Guaranty Obligation") be deemed equal to the maximum
reasonably anticipated liability in respect thereof, and shall, with
respect to ITEM (b)(iii) of this definition be marked to market on a
current basis.
"CONTRACTUAL OBLIGATION" of any Person shall mean, any
indenture, note, lease, loan agreement, security, deed of trust,
mortgage, security agreement, guaranty, instrument, contract, agreement
or other form of contractual obligation or undertaking to which such
Person is a party or by which such Person or any of its property is
bound.
"CREDIT DOCUMENTS" shall mean and include this Agreement, the
Amended and Restated Notes, the Amended and Restated Guaranty, all Rate
Contracts of Borrower with any Lender related to any Loan and the
Agent's Fee Letter; all other documents, instruments and agreements
delivered to Agent or any Lender pursuant to PARAGRAPH 3.01; and all
other documents, instruments and agreements delivered by Borrower or
any of its Subsidiaries to Agent or any Lender in connection with this
Agreement on or after the date of this Agreement.
"CREDIT EVENT" shall mean the making of any Loan, the
conversion of any Loan into a LIBOR Loan or the selection of a new
Interest Period for any LIBOR Loan.
"DEBT/EBITDA RATIO" shall mean, with respect to Borrower and
its Subsidiaries on the last day of any fiscal quarter, the ratio,
determined on a consolidated basis in accordance with GAAP, of (a) the
sum of the Funded Indebtedness of Borrower and its Subsidiaries at such
time to (b) the EBITDA of Borrower and its Subsidiaries for the
consecutive four-quarter period which ended on the last day of such
fiscal quarter.
"DEFAULT" shall mean any event or circumstance not yet
constituting an Event of Default which with the giving of any notice or
the lapse of any period of time or both, would become an Event of
Default.
"DISCLOSURE LETTER" shall mean the letter from Borrower to
Agent, dated the date of this Agreement, which identifies itself as the
"Disclosure Letter" under this Agreement.
"DOLLARS" and "$" shall mean the lawful currency of the United
States of America and, in relation to any payment under this Agreement,
same day or immediately available funds.
"DOMESTIC SUBSIDIARY" shall mean each Subsidiary of Borrower
which is "domestic" within the meaning of Section 7701(a)(4) of the
IRC.
"EBITDA" shall mean, with respect to Borrower and its
Subsidiaries for any period, the sum of the following, determined on a
consolidated basis in accordance with GAAP:
(a) The net income of Borrower and its Subsidiaries
for such period before provision for income taxes;
PLUS
(b) The sum (to the extent deducted in calculating
such Adjusted Net Income) of (i) all Interest Expenses of
Borrower and its Subsidiaries accrued during such period and
(ii) all depreciation and amortization expenses of Borrower
and its Subsidiaries accrued during such period;
PLUS
(c) To the extent deducted in calculating such net
income for such period under CLAUSE (a) above, all Acquisition
In-Process R&D Charges taken by Borrower and its Subsidiaries
during such period.
"EBITDAR" shall mean, with respect to Borrower and its
Subsidiaries for any period, the sum of the following, determined on a
consolidated basis in accordance with GAAP:
(a) EBITDA of Borrower and its Subsidiaries for such
period;
PLUS
(b) The sum of all lease Rental Obligations of
Borrower and its Subsidiaries accrued during such period.
"EBITDAR/FIXED CHARGE COVERAGE RATIO" shall mean, with respect
to Borrower and its Subsidiaries for any period, the ratio, determined
on a consolidated basis in accordance with GAAP, of:
(a) EBITDAR of Borrower and its Subsidiaries for the
consecutive four-quarter period which ended on the last day of
such fiscal quarter;
TO
(b) The sum of (i) to the extent deducted in
calculating such EBITDAR for such period, all Interest
Expenses of Borrower and its Subsidiaries for such period,
PLUS (ii) to the extent deducted in calculating such EBITDAR
for such period, all payments of Rental Obligations made by
Borrower and its Subsidiaries for such period, PLUS (iii) the
aggregate principal amount of all long-term Indebtedness of
Borrower and its Subsidiaries that matures during the
consecutive four-quarter period immediately following such
period.
"ELIGIBLE ASSIGNEE" shall mean (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $100,000,000; (b) a commercial
bank organized under the laws of any other country which is a member of
the Organization for Economic Cooperation and Development (the "OECD"),
or a political subdivision of any such country, and having a combined
capital and surplus of at least $100,000,000, provided that such bank
is acting through a branch or agency located in the United States; or
(c) a Person that is primarily engaged in the business of commercial
banking and that is (i) a Subsidiary of a Lender, (ii) a Subsidiary of
a Person of which a Lender is a Subsidiary, or (iii) a Person of which
a Lender is a Subsidiary.
"EMPLOYEE BENEFIT PLAN" shall mean any employee benefit plan
within the meaning of section 3(3) of ERISA maintained or contributed
to by Borrower or any ERISA Affiliate, other than a Multiemployer Plan.
"ENVIRONMENTAL LAWS" shall mean all Requirements of Law
relating to the protection of human health and the environment,
including, without limitation, all Requirements of Law, pertaining to
reporting, licensing, permitting, transportation, storage, disposal,
investigation, and remediation of emissions, discharges, releases, or
threatened releases of Hazardous Materials, chemical substances,
pollutants, contaminants, or hazardous or toxic substances, materials
or wastes, whether solid, liquid, or gaseous in nature, into the air,
surface water, groundwater, or land, or relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport,
or handling of chemical substances, pollutants, contaminants, or
hazardous or toxic substances, materials, or wastes, whether solid,
liquid, or gaseous in nature.
"EQUITY SECURITIES" of any Person shall mean (a) all common
stock, preferred stock, participations, shares, partnership interests
or other equity interests in and of such Person (regardless of how
designated and whether or not voting or non-voting) and (b) all
warrants, options and other rights to acquire any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may from time to time be amended or supplemented,
including any rules or regulations issued in connection therewith.
"ERISA AFFILIATE" shall mean any Person which is treated as a
single employer with Borrower under Section 414 of the IRC.
"EVENT OF DEFAULT" shall have the meaning given to that term
in PARAGRAPH 6.01.
"EXISTING CREDIT AGREEMENT" shall have the meaning given to
that term in the RECITAL B.
"FEDERAL FUNDS RATE" shall mean, for any day, the rate per
annum set forth in the weekly statistical release designated as
H.15(519), or any successor publication, published by the Federal
Reserve Board (including any such successor publication, "H.15
(519)") for such day opposite the caption "Federal Funds (Effective)".
If on any relevant day, such rate is not yet published in H.15 (519),
the rate for such day shall be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations
for U.S. Government Securities, or any successor publication, published
by the Federal Reserve Bank of New York (including any such successor
publication, the "Composite 3:30 p.m. Quotations") for such day under
the caption "Federal Funds Effective Rate". If on any relevant day,
such rate is not yet published in either H.15 (519) or the Composite
3:30 p.m. Quotations, the rate for such day shall be the arithmetic
means, as determined by Agent, of the rates quoted to Agent for such
day by three (3) Federal funds brokers of recognized standing selected
by Agent.
"FEDERAL RESERVE BOARD" shall mean the Board of Governors of
the Federal Reserve System.
"FINANCIAL STATEMENTS" shall mean, with respect to any
accounting period for any Person, statements of income, shareholders'
equity and cash flows of such Person for such period, and a balance
sheet of such Person as of the end of such period, setting forth in
each case in comparative form figures for the corresponding period in
the preceding fiscal year if such period is less than a full fiscal
year or, if such period is a full fiscal year, corresponding figures
from the preceding annual audit, all prepared in reasonable detail and
in accordance with GAAP.
"FUNDED INDEBTEDNESS" of any Person shall mean, without
duplication:
(a) All obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments and all
other obligations of such Person for borrowed money (including
obligations to repurchase receivables and other assets sold
with recourse);
(b) All obligations of such Person for the deferred
purchase price of property or services (including obligations
under letters of credit and other credit facilities which
secure or finance such purchase price and obligations under
"synthetic" leases), but excluding trade accounts payable,
provided that (A) such accounts arise in the ordinary course
of business and are not evidenced by a note or similar
instrument and (B) no material part of any such account is
more than ninety (90) days past due (unless subject to a bona
fide dispute and for which adequate reserves have been
established);
(c) All obligations of such Person under conditional
sale or other title retention agreements with respect to
property acquired by such Person (to the extent of the value
of such property if the rights and remedies of the seller or
lender under such agreement in the event of default are
limited solely to repossession or sale of such property);
(d) All obligations of such Person as lessee under
or with respect to Capital Leases;
(e) All non-contingent payment or reimbursement
obligations of such Person under or with respect to Surety
Instruments;
(f) All Guaranty Obligations of such Person with
respect to the obligations of other Persons of the types
described in CLAUSES (a) - (e) above; and
(g) All obligations of other Persons of the types
described in CLAUSES (a) - (e) above to the extent secured by
(or for which any holder of such obligations has an existing
right, contingent or otherwise, to be secured by) any Lien in
any property (including accounts and contract rights) of such
Person, even though such Person has not assumed or become
liable for the payment of such obligations.
"GAAP" shall mean generally accepted accounting principles and
practices as in effect in the United States of America from time to
time, consistently applied.
"GOVERNMENTAL AUTHORITY" shall mean any domestic or foreign
national, state or local government, any political subdivision thereof,
any department, agency, authority or bureau of any of the foregoing, or
any other entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government,
including, without limitation, the Federal Deposit Insurance
Corporation, the Federal Reserve Board, the Comptroller of the
Currency, any central bank or any comparable authority.
"GOVERNMENTAL CHARGES" shall mean, with respect to any Person,
all levies, assessments, fees, claims or other charges imposed by any
Governmental Authority upon such Person or any of its property or
otherwise payable by such Person.
"GOVERNMENTAL RULE" shall mean any law, rule, regulation,
ordinance, order, code interpretation, judgment, decree, directive,
guidelines, policy or similar form of decision of any Governmental
Authority.
"GUARANTY OBLIGATION" shall mean, with respect to any Person,
any direct or indirect liability of that Person with respect to any
indebtedness, lease, dividend, letter of credit or other obligation
(the "primary obligations") of another Person (the "primary obligor"),
including any obligation of that Person, whether or not contingent, (a)
to purchase, repurchase or otherwise acquire such primary obligations
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 or otherwise to maintain the net worth
or solvency or any balance sheet item, level of income or financial
condition of the 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 to
make payment of such primary obligation, or (d) otherwise to assure or
hold harmless the holder of any such primary obligation against loss in
respect thereof. (Without limiting the generality of the foregoing
definition, the Guaranty Obligations of Borrower shall include the
obligations of Borrower under the Borrower Note Guaranties.) The amount
of any Guaranty Obligation shall be deemed equal to the stated or
determinable amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or if indeterminable, the
maximum reasonably anticipated liability in respect thereof.
"HAZARDOUS MATERIALS" shall mean all materials, substances and
wastes which are classified or regulated as "hazardous," "toxic" or
similar descriptions under any Environmental Law or which are
hazardous, toxic, harmful or dangerous to human health.
"INDEBTEDNESS" of any Person shall mean, without duplication:
(a) All obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments and all
other obligations of such Person for borrowed money (including
non-contingent obligations to repurchase receivables and other
assets sold with recourse;
(b) All obligations of such Person for the deferred
purchase price of property or services (including obligations
under letters of credit and other credit facilities which
secure or finance such purchase price and obligations under
"synthetic" leases), but excluding trade accounts payable,
provided that (A) such accounts arise in the ordinary course
of business and are not evidenced by a note or similar
instrument and (B) no material part of any such account is
more than ninety (90) days past due (unless subject to a bona
fide dispute and for which adequate reserves have been
established);
(c) All obligations of such Person under conditional
sale or other title retention agreements with respect to
property acquired by such Person (to the extent of the value
of such property if the rights and remedies of the seller or
lender under such agreement in the event of default are
limited solely to repossession or sale of such property);
(d) All obligations of such Person as lessee under or
with respect to Capital Leases;
(e) All obligations of such Person, contingent or
otherwise, under or with respect to Surety Instruments;
(f) All obligations of such Person, contingent or
otherwise, under or with respect to Rate Contracts;
(g) All Guaranty Obligations of such Person with
respect to the obligations of other Persons of the types
described in CLAUSES (a) - (f) above and all other Contingent
Obligations of such Person; and
(h) All obligations of other Persons of the types
described in CLAUSES
(a) - (f) above to the extent secured by (or for which any
holder of such obligations has an existing right,
contingent or otherwise, to be secured by) any Lien in any
property (including accounts and contract rights) of such
Person, even though such Person has not assumed or become
liable for the payment of such obligations.
"INTEREST ACCOUNT" shall have the meaning given to that term
in SUBPARAGRAPH 2.06(b).
"INTEREST EXPENSES" shall mean, with respect to any Person for
any period, the sum, determined on a consolidated basis in accordance
with GAAP, of all interest accruing on the Indebtedness of such Person
during such period (including interest attributable to Capital Leases).
"INTEREST PERIOD" shall mean, with respect to any LIBOR Loan,
the time periods selected by Borrower pursuant to SUBPARAGRAPH 2.01(b)
or SUBPARAGRAPH 2.01(d) which commences on the first day of such Loan
or the effective date of any conversion and ends on the last day of
such time period, and thereafter, each subsequent time period selected
by Borrower pursuant to SUBPARAGRAPH 2.01(e) which commences on the
last day of the immediately preceding time period and ends on the last
day of that time period.
"INVESTMENT" of any Person shall mean any loan or advance of
funds by such Person to any other Person (other than advances to
employees of such Person for moving and travel expenses, drawing
accounts and similar expenditures in the ordinary course of business),
any purchase or other acquisition of any Equity Securities or
Indebtedness of any other Person, any capital contribution by such
Person to or any other investment by such Person in any other Person
(including any Guaranty Obligations of such Person and any indebtedness
of such Person of the type described in CLAUSE (h) of the definition of
"Indebtedness" on behalf of any other Person); PROVIDED, HOWEVER, that
Investments shall not include (a) accounts receivable or other
indebtedness owed by customers of such Person which are current assets
and arose from sales of inventory in the ordinary course of such
Person's business for ordinary terms or (b) prepaid expenses of such
Person incurred and prepaid in the ordinary course of business.
"IRC" shall mean the Internal Revenue Code of 1986, as amended
from time to time.
"LENDERS" shall have the meaning given to that term in CLAUSE
(2) OF THE INTRODUCTORY PARAGRAPH.
"LIBO RATE" shall mean, with respect to any Interest Period
for the LIBOR Loans in any Borrowing consisting of LIBOR Loans, a rate
per annum equal to the quotient of (a) the arithmetic mean (rounded
upward if necessary to the nearest 1/16 of one percent) of the rates
per annum provided to Agent by each of the Reference Banks as the rate
at which Dollar deposits are offered to such Reference Bank in the
London interbank market on the second Business Day prior to the first
day of such Interest Period at or about
11:00 A.M. (London time) (for delivery on the first day of such
Interest Period) in an amount substantially equal to such Reference
Bank's LIBOR Loan in such Borrowing and for a term comparable to
such Interest Period, DIVIDED BY (b) one minus the Reserve
Requirement for such Loans in effect from time to time. If for any
reason any of the Reference Banks fails to provide Agent with a rate
on any day as provided in CLAUSE (a) of the preceding sentence,
Agent shall calculate the LIBO Rate based upon the rate(s) provided
by the remaining Reference Bank(s). The LIBO Rate shall be adjusted
automatically as to all LIBOR Loans then outstanding as of the
effective date of any change in the Reserve Requirement.
"LIBOR LOAN" shall mean, at any time, a Loan which then bears
interest as provided in CLAUSE (ii) OF SUBPARAGRAPH 2.01(c).
"LIEN" shall mean, with respect to any property, any security
interest, mortgage, pledge, lien, charge or other encumbrance in, of,
or on such property or the income therefrom, including, without
limitation, the interest of a vendor or lessor under a conditional sale
agreement, Capital Lease or other title retention agreement, or any
agreement to provide any of the foregoing, and the filing of any
financing statement or similar instrument under the Uniform Commercial
Code or comparable law of any jurisdiction.
"LOAN" shall have the meaning given to that term in
SUBPARAGRAPH 2.01(a).
"MARGIN STOCK" shall have the meaning given to that term in
Regulation U issued by the Federal Reserve Board, as amended from time
to time, and any successor regulation thereto.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect
on (a) the business, assets, operations, prospects or financial or
other condition of Borrower and its Subsidiaries on a consolidated
basis; (b) the ability of Borrower to pay or perform the Obligations in
accordance with the terms of this Agreement and the other Credit
Documents; or (c) the rights and remedies of Agent or any Lender under
this Agreement, the other Credit Documents or any related document,
instrument or agreement.
"MATURITY" shall mean, with respect to any Loan, interest, fee
or other amount payable by Borrower under this Agreement or the other
Credit Documents, the date such Loan, interest, fee or other amount
becomes due, whether upon the stated maturity or due date, upon
acceleration or otherwise.
"MATURITY DATE" shall mean March 29, 2002 or, if such date is
extended from time to time pursuant to SUBPARAGRAPH 2.01(h), any later
date to which so extended.
"MATURITY DATE EXTENSION REQUEST" shall have the meaning given
to that term in SUBPARAGRAPH 2.01(h).
"MULTIEMPLOYER PLAN" shall mean any multiemployer plan within
the meaning of
section 3(37) of ERISA maintained or contributed to by Borrower or
any ERISA Affiliate.
"NET PROCEEDS" shall mean, with respect to any sale or
issuance of any Equity Security or the incurrence of any Indebtedness
by any Person, the aggregate consideration received by such Person from
such sale, issuance or incurrence LESS the sum of the actual amount of
the reasonable fees and commissions payable to Persons other than such
Person or any Affiliate of such Person, the reasonable legal expenses
and the other reasonable costs and expenses directly related to such
sale, issuance or incurrence that are to be paid by such Person.
"NOTICE OF BORROWING" shall have the meaning given to that
term in SUBPARAGRAPH 2.01(b).
"NOTICE OF CONVERSION" shall have the meaning given to that
term in SUBPARAGRAPH 2.01(d).
"NOTICE OF INTEREST PERIOD SELECTION" shall have the meaning
given to that term in SUBPARAGRAPH 2.01(e).
"OBLIGATIONS" shall mean and include, with respect to
Borrower, all loans, advances, debts, liabilities, and obligations,
howsoever arising, owed by Borrower to Agent or any Lender of every
kind and description (whether or not evidenced by any note or
instrument and whether or not for the payment of money), direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising pursuant to the terms of this Agreement or any of the
other Credit Documents, including without limitation all interest,
fees, charges, expenses, attorneys' fees and accountants' fees
chargeable to Borrower or payable by Borrower hereunder or thereunder.
"PARTICIPANT" shall have the meaning given to that term in
SUBPARAGRAPH 8.05(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation,
or any successor thereto.
"PERMITTED INDEBTEDNESS" shall have the meaning given to
that term in SUBPARAGRAPH 5.02(a).
"PERMITTED LIENS" shall have the meaning given to that term
in SUBPARAGRAPH 5.02(b).
"PERSON" shall mean and include an individual, a partnership,
a corporation (including a business trust), a joint stock company, an
unincorporated association, a limited liability company, a joint
venture, a trust or other entity or a Governmental Authority.
"PRICING GRID" shall mean SCHEDULE 1.01(a).
"PRIME RATE" shall mean the per annum rate publicly announced
by ABN from time to time at its Chicago office as its prime commercial
lending rate. The Prime Rate is determined by ABN from time to time as
a means of pricing credit extensions to some customers and is neither
directly tied to any external rate of interest or index nor necessarily
the lowest rate of interest charged by ABN at any given time for any
particular class of customers or credit extensions. Any change in the
Base Rate resulting from a change in the Prime Rate shall become
effective on the Business Day on which each change in the Prime Rate
occurs.
"PROPORTIONATE SHARE" shall mean, with respect to each Lender,
the percentage set forth under the caption "Proportionate Share"
opposite such Lender's name on SCHEDULE I, or, if changed, such
percentage as may be set forth for such Lender in the Register.
"RATE CONTRACTS" shall mean swap agreements (as that term is
defined in Section 101 of the Federal Bankruptcy Reform Act of 1978, as
amended) and any other agreements or arrangements designed to provide
protection against fluctuations in interest or currency exchange rates.
"REFERENCE BANKS" shall mean ABN, Sanwa and BNP.
"REGISTER" shall have the meaning given to that term in
SUBPARAGRAPH 8.05(d).
"RENTAL OBLIGATIONS" shall mean all present and future
obligations of Borrower or any of its Subsidiaries under rental
agreements or leases of real or personal property, other than (a)
obligations that can be terminated by the giving of notice without
liability to Borrower or such Subsidiary in excess of the liability for
rent due as of the date on which such notice is given and under which
no penalty or premium is paid as a result of any such termination, and
(b) current obligations in respect of Capital Leases or "synthetic
leases".
"REPORTABLE EVENT" shall have the meaning given to that term
in ERISA and applicable regulations thereunder.
"REQUIRED LENDERS" shall mean (a) at any time Loans are
outstanding, Lenders holding sixty-six and two-thirds percent (66 2/3%)
or more of the aggregate principal amount of such Loans and (b) at any
time no Loans are outstanding, Lenders whose Proportionate Shares equal
or exceed sixty-six and two-thirds percent (66 2/3%).
"REQUIREMENT OF LAW" applicable to any Person shall mean (a)
the Articles or Certificate of Incorporation and By-laws, Partnership
Agreement or other organizational or governing documents of such
Person, (b) any Governmental Rule applicable to such Person, (c) any
license, permit, approval or other authorization granted by any
Governmental Authority to or for the benefit of such Person or (d) any
judgment, decision or determination of any Governmental Authority or
arbitrator, in each case applicable to or binding upon such Person or
any of its property or to which such Person
or any of its property is subject.
"RESERVE REQUIREMENT" shall mean, with respect to any day in
an Interest Period for a LIBOR Loan, the aggregate of the reserve
requirement rates (expressed as a decimal) in effect on such day for
eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of the Federal Reserve Board) maintained
by a member bank of the Federal Reserve System. As used herein, the
term "reserve requirement" shall include, without limitation, any
basic, supplemental or emergency reserve requirements imposed on Lender
by any Governmental Authority.
"RESPONSIBLE OFFICER" shall mean, with respect to Borrower,
the Chairman, Chief Executive Officer, Chief Operating Officer,
President, Chief Financial Officer, Treasurer or General Counsel of
Borrower (or, if the titles are changed, the persons having similar
responsibilities for Borrower).
"SANWA" shall mean Sanwa Bank California, a California
banking corporation.
"SECURITY DOCUMENTS" shall mean and include the "Security
Agreement", the "Pledge Agreement", the "IP Security Agreement" (as
each such term is defined in the Existing Credit Agreement), and all
other instruments, agreements, certificates, opinions and documents
(including Uniform Commercial Code financing statements and fixture
filings and landlord waivers) previously delivered to Agent or any
Lender in connection with the Existing Credit Agreement, other than the
Guaranties.
"SUBSIDIARY" of any Person shall mean (a) any corporation of
which more than 50% of the issued and outstanding Equity Securities
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency) is
at the time directly or indirectly owned or controlled by such Person,
by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries, (b) any partnership, joint
venture, or other association of which more than 50% of the equity
interest having the power to vote, direct or control the management of
such partnership, joint venture or other association is at the time
owned and controlled by such Person, by such Person and one or more of
the other Subsidiaries or by one or more of such Person's other
Subsidiaries or (c) any other Person included in the Financial
Statements of such Person on a consolidated basis.
"SURETY INSTRUMENTS" shall mean all letters of credit
(including standby and commercial), banker's acceptances, bank
guaranties, shipside bonds, surety bonds and similar instruments.
"TANGIBLE NET WORTH" shall mean, with respect to Borrower and
its Subsidiaries at any time, the remainder at such time, determined on
a consolidated basis in accordance with GAAP, of (a) the total assets
of Borrower and its Subsidiaries MINUS (b) the sum (without limitation
and without duplication of deductions) of (i) the total liabilities of
Borrower and its Subsidiaries, (ii) all reserves established by
Borrower and its Subsidiaries for anticipated losses and expenses (to
the extent not deducted in calculating total assets in CLAUSE (a)
above), (iii) all intangible assets of Borrower and its Subsidiaries
(to the extent included in calculating total assets in CLAUSE (a)
above), including, without limitation, goodwill (including any amounts,
however designated on the balance sheet, representing the cost of
acquisition of businesses and investments in excess of underlying
tangible assets), trademarks, trademark rights, trade name rights,
copyrights, patents, patent rights, licenses, unamortized debt
discount, marketing expenses, organizational expenses, non-compete
agreements and deferred research and development and (iv) all loans
owed to Borrower and its Subsidiaries by officers, directors and
employees of Borrower and its Subsidiaries.
"TAXES" shall have the meaning given to such term in
SUBPARAGRAPH 2.10(a).
"TOTAL COMMITMENT" shall mean, at any time, Seventy Five
Million Dollars ($75,000,000) or, if such amount is reduced pursuant to
SUBPARAGRAPH 2.02(a), the amount to which so reduced and in effect at
such time.
"TYPE" shall mean, with respect to any Loan or Borrowing at
any time, the classification of such Loan or Borrowing by the type of
interest rate it then bears, whether an interest rate based upon the
Base Rate or the LIBO Rate.
"UBOC" shall mean Union Bank of California, a California
banking corporation.
"UNUSED COMMITMENT" shall mean, at any time, the remainder of
(a) the Total Commitment at such time minus (b) the aggregate principal
amount of all Loans outstanding at such time.
1.2. GAAP. Unless otherwise indicated in this Agreement or any other
Credit Document, all accounting terms used in this Agreement or any other Credit
Document shall be construed, and all accounting and financial computations
hereunder or thereunder shall be computed, in accordance with GAAP. If GAAP
changes during the term of this Agreement such that any covenants contained
herein would then be calculated in a different manner or with different
components, Borrower, the Lenders and Agent agree to negotiate in good faith to
amend this Agreement in such respects as are necessary to conform those
covenants as criteria for evaluating Borrower's financial condition to
substantially the same criteria as were effective prior to such change in GAAP;
PROVIDED, HOWEVER, that, until Borrower, the Lenders and Agent so amend this
Agreement, all such covenants shall be calculated in accordance with GAAP as in
effect immediately prior to such change.
1.3. HEADINGS. Headings in this Agreement and each of the other
Credit Documents are for convenience of reference only and are not part of the
substance hereof or thereof.
1.4. PLURAL TERMS. All terms defined in this Agreement or any other
Credit Document in the singular form shall have comparable meanings when used in
the plural form and VICE VERSA.
1.5. TIME. All references in this Agreement and each of the other
Credit Documents to a time of day shall mean San Francisco, California time,
unless otherwise indicated.
1.6. GOVERNING LAW. This Agreement and each of the other Credit
Documents (unless otherwise provided in such other Credit Documents) shall be
governed by and construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
1.7. CONSTRUCTION. This Agreement is the result of negotiations
among, and has been reviewed by, Borrower, each Lender, Agent and their
respective counsel. Accordingly, this Agreement shall be deemed to be the
product of all parties hereto, and no ambiguity shall be construed in favor
of or against Borrower, any Lender or Agent.
1.8. ENTIRE AGREEMENT. This Agreement and each of the other Credit
Documents, taken together, constitute and contain the entire agreement of
Borrower, the Lenders and Agent and supersede any and all prior agreements,
negotiations, correspondence, understandings and communications among the
parties, whether written or oral, respecting the subject matter hereof.
1.9. CALCULATION OF INTEREST AND FEES. All calculations of interest
and fees under this Agreement and the other Credit Documents for any period (a)
shall include the first day of such period and exclude the last day of such
period and (b) shall be calculated on the basis of a year of 360 days for actual
days elapsed, except that during any period any Loan bears interest based upon
the Prime Rate, such interest shall be calculated on the basis of a year of 365
or 366 days, as appropriate, for actual days elapsed.
1.10. OTHER INTERPRETIVE PROVISIONS. References in this Agreement to
"Recitals," "Sections," "Paragraphs," "Subparagraphs," "Exhibits" and
"Schedules" are to recitals, sections, paragraphs, subparagraphs, exhibits and
schedules herein and hereto unless otherwise indicated. References in this
Agreement and each of the other Credit Documents to any document, instrument or
agreement (a) shall include all exhibits, schedules and other attachments
thereto, (b) shall include all documents, instruments or agreements issued or
executed in replacement thereof, and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, modified and
supplemented from time to time and in effect at any given time. References in
this Agreement and each of the other Credit Documents to any statute or other
law (i) shall include any successor statute or law, (ii) shall include all rules
and regulations promulgated under such statute or law (or any successor statute
or law), and (iii) shall mean such statute or law (or successor statute or law)
and such rules and regulations, as amended, modified, codified or reenacted from
time to time and in effect at any given time. The words "hereof," "herein" and
"hereunder" and words of similar import when used in this Agreement or any other
Credit Document shall refer to this Agreement or such other Credit Document, as
the case may be, as a whole and not to any particular provision of this
Agreement or such other Credit Document, as the case may be. The words "include"
and "including" and words of similar import when used in this Agreement or any
other Credit Document shall not be construed to be limiting or exclusive. In the
event of any inconsistency between the terms of this Agreement and the terms of
any other Credit Document, the terms of this Agreement shall govern.
SECTION II. CREDIT FACILITY.
2.1. REVOLVING LOAN FACILITY.
(a) LOAN AVAILABILITY. Subject to the terms and conditions of
this Agreement (including the amount limitations set forth in PARAGRAPH
2.02 and the conditions set forth in SECTION III), each Lender
severally agrees to advance to Borrower from time to time during the
period beginning on the Closing Date and ending on the Maturity Date
such loans as Borrower may request under this PARAGRAPH 2.01
(individually, a "LOAN"); PROVIDED, HOWEVER, that (i) the aggregate
principal amount of all Loans made by such Lender at any time
outstanding shall not exceed such Lender's Commitment at such time and
(ii) the aggregate principal amount of all Loans made by all Lenders at
any time outstanding shall not exceed the Total Commitment at such
time. All Loans shall be made on a pro rata basis by the Lenders in
accordance with their respective Proportionate Shares, with each
Borrowing to be comprised of a Loan by each Lender equal to such
Lender's Proportionate Share of such Borrowing. Except as otherwise
provided herein, Borrower may borrow, repay and reborrow Loans until
the Maturity Date.
(b) NOTICE OF BORROWING. Borrower shall request each Borrowing
by delivering to Agent an irrevocable written notice in the form of
EXHIBIT A, appropriately completed (a "NOTICE OF BORROWING"), which
specifies, among other things:
(i) The principal amount of the requested Borrowing,
which shall be in the amount of (A) $100,000 or an integral
multiple of $50,000 in excess thereof in the case of a
Borrowing consisting of Base Rate Loans; or (B) $400,000 or an
integral multiple of $100,000 in excess thereof in the case of
a Borrowing consisting of LIBOR Loans;
(ii) Whether the requested Borrowing is to consist of
Base Rate Loans or LIBOR Loans;
(iii) If the requested Borrowing is to consist of
LIBOR Loans, the initial Interest Period selected by Borrower
for such Loans in accordance with SUBPARAGRAPH 2.01(e); and
(iv) The date of the requested Borrowing, which shall
be a Business Day;
Borrower shall give each Notice of Borrowing to Agent at least three
(3) Business Days before the date of the requested Borrowing in the
case of a Borrowing consisting of LIBOR Loans with Interest Periods of
one month or longer and on or before the date of the requested
Borrowing in the case of any other Borrowing. Each Notice of Borrowing
shall be delivered by first-class mail or facsimile to Agent at the
office or facsimile number and during the hours specified in PARAGRAPH
8.01; PROVIDED, HOWEVER, that Borrower shall promptly deliver to Agent
the original of any Notice of Borrowing initially delivered by
facsimile. Agent shall promptly notify each Lender of the contents of
each Notice of Borrowing and of the amount and Type of (and, if
applicable, the Interest Period for) each Loan to be made by such
Lender as part of the requested Borrowing.
(c) LOAN INTEREST RATES. Borrower shall pay interest on the
unpaid principal amount of each Loan from the date of such Loan until
the maturity thereof, at one of the following rates per annum:
(i) During such periods as such Loan is a Base Rate
Loan, at a rate per annum equal to the Base Rate PLUS the
Applicable Margin therefor, such rate to change from time to
time as the Applicable Margin or Base Rate shall change; and
(ii) During such periods as such Loan is a LIBOR
Loan, at a rate per annum equal at all times during each
Interest Period for such LIBOR Loan to the LIBO Rate for such
Interest Period PLUS the Applicable Margin therefor, such rate
to change from time to time during such Interest Period as the
Applicable Margin shall change.
All Loans in each Borrowing shall, at any given time prior to maturity,
bear interest at one, and only one, of the above rates. The number of
Borrowings consisting of LIBOR Loans shall not exceed seven (7) at any
time.
(d) CONVERSION OF LOANS. Borrower may convert any Borrowing
from one Type of Borrowing to the other Type; PROVIDED, HOWEVER, that
any conversion of a Borrowing consisting of LIBOR Loans into a
Borrowing consisting of Base Rate Loans shall be made on, and only on,
the last day of an Interest Period for such LIBOR Loans. Borrower shall
request such a conversion by an irrevocable written notice to Agent in
the form of EXHIBIT B, appropriately completed (a "NOTICE OF
CONVERSION"), which specifies, among other things:
(i) The Borrowing which is to be converted;
(ii) The Type of Borrowing into which such Borrowing
is to be converted;
(iii) If such Borrowing is to be converted into a
Borrowing consisting of LIBOR Loans, the initial Interest
Period selected by Borrower for such Loans in accordance with
SUBPARAGRAPH 2.01(e); and
(iv) The date of the requested conversion, which
shall be a Business Day.
Borrower shall give each Notice of Conversion to Agent at least three
(3) Business Days before the date of the requested conversion in the
case of a conversion into a Borrowing consisting of LIBOR Loans with
Interest Periods of one month or more and on or before the date of the
requested conversion in the case of a conversion into any other
Borrowing. Each Notice of Conversion shall be delivered by first-class
mail or facsimile to Agent at the office or to the facsimile number and
during the hours specified in PARAGRAPH 8.01; PROVIDED, HOWEVER, that
Borrower shall promptly deliver to Agent the original of any Notice of
Conversion initially delivered by facsimile. Agent shall promptly
notify each Lender of the contents of each Notice of Conversion.
(e) LIBOR LOAN INTEREST PERIODS.
(i) The initial and each subsequent Interest Period
selected by Borrower for a LIBOR Loan shall be one (1) week,
two (2) weeks, one (1) month, two (2) months, three (3) months
or six (6) months; PROVIDED, HOWEVER, that (A) any Interest
Period which would otherwise end on a day which is not a
Business Day shall be extended to the next succeeding Business
Day unless such next Business Day falls in another calendar
month, in which case such Interest Period shall end on the
immediately preceding Business Day; (B) any Interest Period
(other than a one-week or two-week Interest Period) which
begins on the last Business Day of a calendar month (or on a
day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end
on the last Business Day of a calendar month; and (C) no such
Interest Period shall end after the Maturity Date.
(ii) Borrower shall notify Agent by an irrevocable
written notice in the form of EXHIBIT C, appropriately
completed (a "NOTICE OF INTEREST PERIOD SELECTION"), at least
three (3) Business Days prior to the last day of each Interest
Period for LIBOR Loans of the Interest Period selected by
Borrower for the next succeeding Interest Period for such
Loans. Each Notice of Interest Period Selection shall be given
by first-class mail or facsimile to the office or the
facsimile number and during the hours specified in PARAGRAPH
8.01; PROVIDED, HOWEVER, that Borrower shall promptly deliver
to Agent the original of any Notice of Interest Period
Selection initially delivered by facsimile. If Borrower fails
to notify Agent of the next Interest Period for LIBOR Loans in
accordance with this SUBPARAGRAPH 2.01(e), such Loans shall
automatically convert to Base Rate Loans on the last day of
the current Interest Period therefor.
(f) SCHEDULED LOAN PAYMENTS. Borrower shall repay the
principal amount of the Loans on the Maturity Date. Borrower shall pay
accrued interest on the unpaid principal amount of each Loan in arrears
(A) in the case of a Base Rate Loan, on the last day in each March,
June, September and December, (B) in the case of a LIBOR Loan, on the
last day of each Interest Period therefor (and, if any such Interest
Period is longer than three (3) months, every three (3) months); and
(C) in the case of all Loans, upon prepayment (to the extent thereof)
and at maturity.
(g) PURPOSE. Borrower shall use the proceeds of the Loans (i)
first, to repay on the Closing Date all indebtedness outstanding under
the Existing Credit Agreement and (ii) thereafter, for Borrower's
general corporate needs, including the consummation of acquisitions
otherwise permitted pursuant to the terms of this Agreement.
(h) MATURITY DATE EXTENSIONS. On or before the last Business
Day of each December beginning on December 31, 2001, Borrower may
request the Lenders to extend the Maturity Date for an additional
one-year period. Borrower shall request each such extension by
appropriately completing, executing and delivering to Agent a written
request in the form of EXHIBIT D (a " MATURITY DATE EXTENSION
REQUEST"). Borrower understands that this SUBPARAGRAPH 2.01(h) is
included in this Agreement for Borrower's convenience in requesting
extensions and acknowledges that neither Agent nor any Lender has
promised (either expressly or by implication), and neither Agent nor
any Lender has any obligation or commitment, to extend the Maturity
Date at any time. Agent shall promptly deliver to each Lender three (3)
copies of each Maturity Date Extension Request received by Agent. If a
Lender, in its sole and absolute discretion, consents to any Maturity
Date Extension Request, such Lender shall evidence such consent by
executing and returning two (2) copies of the Maturity Date Extension
Request to Agent not later than the last Business Day which is thirty
(30) days after the date Borrower delivered to Agent the Maturity Date
Extension Request. Any failure by any Lender to execute and return a
Maturity Date Extension Request shall be deemed a denial thereof. If
Borrower shall deliver a Maturity Date Extension Request to Agent
pursuant to the first sentence of this SUBPARAGRAPH 2.01(h), then not
later than the last Business Day which is thirty-five (35) days after
the date Borrower delivered to Agent the Maturity Date Extension
Request, Agent shall notify Borrower in writing whether (i) Agent has
received a copy of the Maturity Date Extension Request executed by each
Lender, in which case the definition of " Maturity Date" set forth in
PARAGRAPH 1.01 shall be deemed amended as provided in the Maturity Date
Extension Request as of the date of such written notice from Agent to
Borrower, or (ii) Agent has not received a copy of the Maturity Date
Extension Request executed by each Lender, in which case such Maturity
Date Extension Request shall be deemed denied. Agent shall deliver to
Borrower, with each written notice under CLAUSE (i) of the preceding
sentence which notifies Borrower that Agent has received a Maturity
Date Extension Request executed by each Lender, a copy of the Maturity
Date Extension Request so executed by each Lender.
2.2. COMMITMENT REDUCTIONS, ETC.
(a) OPTIONAL REDUCTION OR CANCELLATION OF COMMITMENTS.
Borrower may, upon three (3) Business Days written notice to Agent,
permanently reduce the Total Commitment by the amount of one million
Dollars ($1,000,000) or an integral multiple of one million Dollars
($1,000,000) in excess thereof or cancel the Total Commitment in its
entirety; PROVIDED, HOWEVER, that:
(i) Borrower may not reduce the Total Commitment
prior to the Maturity Date, if, after giving effect to such
reduction, the aggregate principal amount of all Loans then
outstanding would exceed the Total Commitment; and
(ii) Borrower may not cancel the Total Commitment
prior to the Maturity Date, if, after giving effect to such
cancellation, any Loans would then remain outstanding.
(b) MANDATORY REDUCTION OR CANCELLATION OF COMMITMENTS. If, at
any time, Borrower is required to make any mandatory prepayment of
Loans pursuant to CLAUSE (ii) OF SUBPARAGRAPH 2.04(c), the Total
Commitment shall be automatically and permanently
reduced or cancelled by an amount equal to the full amount of any
required prepayment.
(c) EFFECT OF COMMITMENT REDUCTIONS. From the effective date
of any reduction of the Total Commitment, the Commitment Fees payable
pursuant to SUBPARAGRAPH 2.03(b) shall be computed on the basis of the
Total Commitment as so reduced. Once reduced or cancelled, the Total
Commitment may not be increased or reinstated without the prior written
consent of all Lenders. Any reduction of the Total Commitment pursuant
to SUBPARAGRAPH 2.02(a) or SUBPARAGRAPH 2.02(b) shall be applied
ratably to reduce each Lender's Commitment in accordance with CLAUSE
(i) OF SUBPARAGRAPH 2.08(a).
2.3. FEES.
(a) AGENT'S FEE. Borrower shall pay to Agent, for its own
account, agent's fees and other compensation in the amounts and at the
times set forth in the Agent's Fee Letter.
(b) COMMITMENT FEES. Borrower shall pay to Agent, for the
ratable benefit of the Lenders as provided in CLAUSE (iii) OF
SUBPARAGRAPH 2.08(a), nonrefundable commitment fees (the "COMMITMENT
FEES") equal to the Commitment Fee Percentage on the daily average
Unused Commitment for the period beginning on the date of this
Agreement and ending on the Maturity Date. The Commitment Fee
Percentage shall be determined as provided in the Pricing Grid and may
change for each calendar quarter. Borrower shall pay the Commitment
Fees in arrears on the last day in each March, June, September and
December and on the Maturity Date (or if the Total Commitment is
cancelled on a date prior to the Maturity Date, on such prior date).
(c) PARTICIPATION FEE. On the Closing Date, Borrower shall pay
to Agent, for the benefit of the Lenders, a one-time non-refundable
participation fee equal to 0.15% of the Total Commitment to be shared
among the Lenders pro rata in accordance with such Lenders' respective
proportionate share of the Total Commitment.
2.4. PREPAYMENTS.
(a) TERMS OF ALL PREPAYMENTS. Upon the prepayment of any Loan
(whether such prepayment is an optional prepayment under SUBPARAGRAPH
2.04(b), a mandatory prepayment required by SUBPARAGRAPH 2.04(c) or a
mandatory prepayment required by any other provision of this Agreement
or the other Credit Documents, including, without limitation, a
prepayment upon acceleration), Borrower shall pay to the Lender which
made such Loan (i) all accrued interest to the date of such prepayment
on the amount prepaid and (ii) if such prepayment is the prepayment of
a LIBOR Loan on a day other than the last day of an Interest Period for
such LIBOR Loan, all amounts payable to such Lender pursuant to
PARAGRAPH 2.11.
(b) OPTIONAL PREPAYMENTS. At its option, Borrower may, upon
three (3) Business Days notice to Agent, prepay the Loans in any
Borrowing in part, in an aggregate principal amount of $1,000,000 or
more, or in whole; except that Borrower may prepay the Loans in any
Borrowing consisting of Base Rate Loans on the last Business Day in
any fiscal quarter of Borrower upon same day notice to Agent if
Borrower delivers such notice to Agent not later than 1:00 p.m. on
the date of such prepayment.
(c) MANDATORY PREPAYMENTS. Borrower shall immediately repay
Loans as follows:
(i) If, at any time, the aggregate principal amount
of all Loans then outstanding exceeds the Total Commitment at
such time, Borrower shall immediately prepay Loans in an
aggregate principal amount equal to such excess; and
(ii) Upon the incurrence by Borrower of unsecured
Indebtedness of the type permitted pursuant to CLAUSE (xi) OF
SUBPARAGRAPH 5.02(a), Borrower shall immediately prepay Loans
in an amount equal to the Net Proceeds derived from the
Indebtedness so incurred.
2.5. OTHER PAYMENT TERMS.
(a) PLACE AND MANNER. Borrower shall make all payments due to
each Lender or Agent hereunder by payments to Agent at Agent's office
located at the address specified in PARAGRAPH 8.01, with each payment
due to a Lender to be for the account of such Lender and such Lender's
Applicable Lending Office. Borrower shall make all payments hereunder
in lawful money of the United States and in same day or immediately
available funds not later than 12:00 noon on the date due, except that
Borrower may make prepayments of the Loans in a Borrowing consisting of
Base Rate Loans on the last Business Day of a fiscal quarter as late as
1:00 p.m. Agent shall promptly disburse to each Lender each payment
received by Agent for the account of such Lender.
(b) DATE. Whenever any payment due hereunder shall fall due on
a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall be included
in the computation of interest or fees, as the case may be.
(c) LATE PAYMENTS. If any amounts required to be paid by
Borrower under this Agreement or the other Credit Documents (including,
without limitation, principal or interest payable on any Loan, any fees
or other amounts) remain unpaid after such amounts are due, Borrower
shall pay interest on the aggregate, outstanding balance of such
amounts from the date due until those amounts are paid in full at a per
annum rate equal to the Base Rate PLUS two percent (2.00%), such rate
to change from time to time as the Base Rate shall change.
(d) APPLICATION OF PAYMENTS. All payments hereunder shall be
applied first to unpaid fees, costs and expenses then due and payable
under this Agreement or the other Credit Documents, second to accrued
interest then due and payable under this Agreement or the other Credit
Documents and finally to reduce the principal amount of outstanding
Loans.
(e) FAILURE TO PAY AGENT. Unless Agent shall have received
notice from Borrower at
least one (1) Business Day prior to the date on which any payment is
due to the Lenders hereunder that Borrower will not make such
payment in full, Agent shall be entitled to assume that Borrower has
made or will make such payment in full to Agent on such date and
Agent may, in reliance upon such assumption, cause to be paid to the
Lenders on such due date an amount equal to the amount then due such
Lenders. If and to the extent Borrower shall not have so made such
payment in full to Agent, each such Lender shall repay to Agent
forthwith on demand such amount distributed to such Lender together
with interest thereon, for each day from the date such amount is
distributed to such Lender until the date such Lender repays such
amount to Agent, at (i) the Federal Funds Rate for the first three (3)
days and (ii) the per annum rate applicable to Base Rate Loans
thereafter. A certificate of Agent submitted to any Lender with respect
to any amounts owing by such Lender under this SUBPARAGRAPH 2.05(e)
shall be conclusive absent manifest error.
2.6. NOTES AND INTEREST ACCOUNT.
(a) NOTES. The obligation of Borrower to repay the Loans made
by each Lender and to pay interest thereon at the rates provided herein
shall be evidenced by a promissory note in the form of EXHIBIT E
(individually, an "AMENDED AND RESTATED NOTE") which note shall be (i)
payable to the order of such Lender, (ii) in the amount of such
Lender's Commitment, (iii) dated the Closing Date and (iv) otherwise
appropriately completed. Borrower authorizes each Lender to record on
the schedule annexed to such Lender's Amended and Restated Note the
date and amount of each Loan made by such Lender and of each payment or
prepayment of principal thereon made by Borrower, and agrees that all
such notations shall constitute prima facie evidence of the matters
noted; PROVIDED, HOWEVER, that any failure by a Lender to make any such
notation shall not affect the Obligations. Borrower further authorizes
each Lender to attach to and make a part of such Lender's Amended and
Restated Note continuations of the schedule attached thereto as
necessary.
(b) INTEREST ACCOUNT. Borrower authorizes Agent to record in
an account or accounts maintained by Agent on its books (the "INTEREST
ACCOUNT") (i) the interest rates applicable to all Loans and the
effective dates of all changes thereto, (ii) the Interest Period for
each LIBOR Loan, (iii) the date and amount of each principal and
interest payment on each Loan and (iv) such other information as Agent
may determine is necessary for the computation of interest payable by
Borrower hereunder.
2.7. LOAN FUNDING.
(a) LENDER FUNDING AND DISBURSEMENT TO BORROWER. Each Lender
shall, before 12:00 noon on the date of each Borrowing, make available
to Agent at Agent's office specified in PARAGRAPH 8.01, in same day or
immediately available funds, such Lender's Proportionate Share of such
Borrowing. After Agent's receipt of such funds and upon satisfaction of
the applicable conditions set forth in SECTION III, Agent shall
promptly disburse such funds to Borrower in same day or immediately
available funds. Unless
otherwise directed by Borrower, Agent shall disburse the proceeds of
each Borrowing by disbursement to the account or accounts specified
in the applicable Notice of Borrowing.
(b) LENDER FAILURE TO FUND. Unless Agent shall have received
notice from a Lender prior to the date of any Borrowing that such
Lender will not make available to Agent such Lender's Proportionate
Share of such Borrowing, Agent shall be entitled to assume that such
Lender has made or will make such portion available to Agent on the
date of such Borrowing in accordance with SUBPARAGRAPH 2.07(a), and
Agent may on such date, in reliance upon such assumption, disburse or
otherwise credit to Borrower a corresponding amount. If any Lender does
not make the amount of its Proportionate Share of any Borrowing
available to Agent on or prior to the date of such Borrowing, such
Lender shall pay to Agent, on demand, interest which shall accrue on
such amount from the date of such Borrowing until such amount is paid
to Agent at rates equal to (i) the daily Federal Funds Rate during the
period from the date of such Borrowing through the third Business Day
thereafter and (ii) the rate applicable to Base Rate Loans thereafter.
A certificate of Agent submitted to any Lender with respect to any
amounts owing under this SUBPARAGRAPH 2.07(b) shall be conclusive
absent manifest error. If the amount of any Lender's Proportionate
Share of any Borrowing is not paid to Agent by such Lender within three
(3) Business Days after the date of such Borrowing, Borrower shall
repay such amount to Agent, on demand, together with interest thereon,
for each day from the date such amount was disbursed to Borrower until
the date such amount is repaid to Agent, at the interest rate
applicable at the time to the Loans comprising such Borrowing.
(c) LENDERS' OBLIGATIONS SEVERAL. The failure of any Lender to
make the Loan to be made by it as part of any Borrowing shall not
relieve any other Lender of its obligation hereunder to make its Loan
on the date of such Borrowing, but no Lender shall be obligated in any
way to make any Loan which another Lender has failed or refused to make
or otherwise be in any way responsible for the failure or refusal of
any other Lender to make any Loan required to be made by such other
Lender on the date of any Borrowing.
2.8. PRO RATA TREATMENT.
(a) BORROWINGS, COMMITMENT REDUCTIONS, ETC. Except as
otherwise provided herein:
(i) Each Borrowing and reduction of the Total
Commitment shall be made or shared among the Lenders pro rata
according to their respective Proportionate Shares;
(ii) Each payment of principal of Loans in any
Borrowing shall be shared among the Lenders which made or
funded the Loans in such Borrowing pro rata according to the
respective unpaid principal amounts of such Loans so made or
funded by such Lenders;
(iii) Each payment of interest on Loans in any
Borrowing shall be shared among the Lenders which made or
funded the Loans in such Borrowing pro rata
according to (A) the respective unpaid principal amounts of
such Loans so made or funded by such Lenders and (B) the
dates on which such Lenders so made or funded such Loans;
(iv) Each payment of Commitment Fees shall be shared
among the Lenders pro rata according to (A) their respective
Proportionate Shares and (B) in the case of each Lender which
becomes a Lender hereunder after the date hereof, the date
upon which such Lender so became a Lender;
(v) Each payment of interest (other than interest on
Loans) shall be shared among the Lenders and Agent owed the
amount upon which such interest accrues pro rata according to
(A) the respective amounts so owed such Lenders and Agent and
(B) the dates on which such amounts became owing to such
Lenders and Agent; and
(vi) All other payments under this Agreement and the
other Credit Documents shall be for the benefit of the Person
or Persons specified.
(b) SHARING OF PAYMENTS, ETC. If any Lender shall obtain any
payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of Loans owed to it in excess
of its ratable share of payments on account of such Loans obtained by
all Lenders entitled to such payments, such Lender shall forthwith
purchase from the other Lenders such participations in the Loans as
shall be necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; PROVIDED, HOWEVER, that if all or
any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase shall be rescinded and each other
Lender shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such other
Lender's ratable share (according to the proportion of (i) the amount
of such other Lender's required repayment to (ii) the total amount so
recovered from the purchasing Lender) of any interest or other amount
paid or payable by the purchasing Lender in respect of the total amount
so recovered. Borrower agrees that any Lender so purchasing a
participation from another Lender pursuant to this SUBPARAGRAPH 2.08(b)
may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of setoff) with respect to such
participation as fully as if such Lender were the direct creditor of
Borrower in the amount of such participation.
2.09. CHANGE OF CIRCUMSTANCES.
(a) INABILITY TO DETERMINE RATES. If, on or before the first
day of any Interest Period for any LIBOR Loan, (i) any Lender shall
advise Agent that the LIBO Rate for such Interest Period cannot be
adequately and reasonably determined due to the unavailability of funds
in or other circumstances affecting the London interbank market or (ii)
any Lender shall advise Agent that the rate of interest for such Loan
does not adequately and fairly reflect the cost to such Lender of
making or maintaining such LIBOR Loan, Agent shall immediately give
notice of such condition to Borrower and the other Lenders. After the
giving of any such notice and until Agent shall otherwise notify
Borrower that the
circumstances giving rise to such condition no longer exist,
Borrower's right to request the making of or conversion to, and the
Lenders' obligations to make or convert to LIBOR Loans shall be
suspended. Any LIBOR Loans outstanding at the commencement of any such
suspension shall be converted at the end of the then current Interest
Period for such LIBOR Loans into a Base Rate Loans unless such
suspension has then ended.
(b) ILLEGALITY. If, after the date of this Agreement, the
adoption of any Governmental Rule, any change in any Governmental Rule
or the application or requirements thereof (whether such change occurs
in accordance with the terms of such Governmental Rule as enacted, as a
result of amendment or otherwise), any change in the interpretation or
administration of any Governmental Rule by any Governmental Authority,
or compliance by any Lender with any request or directive (whether or
not having the force of law) of any Governmental Authority (a "CHANGE
OF LAW") shall make it unlawful or impossible for any Lender to make or
maintain any LIBOR Loan, such Lender shall immediately notify Agent and
Borrower of such Change of Law. Upon receipt of such notice, (i)
Borrower's right to request the making of or conversion to, and such
Lender's obligation to make or convert to LIBOR Loans shall be
terminated, and (ii) Borrower shall, at the request of such Lender,
either (A) pursuant to SUBPARAGRAPH 2.01(d) convert any such then
outstanding LIBOR Loans into Base Rate Loans at the end of the current
Interest Period for such LIBOR Loans or (B) immediately repay or
convert any such LIBOR Loans if such Lender shall notify Borrower that
such Lender may not lawfully continue to fund and maintain such LIBOR
Loans. Any conversion or prepayment of LIBOR Loans made pursuant to the
preceding sentence prior to the last day of an Interest Period for such
LIBOR Loans shall be deemed a prepayment thereof for purposes of
PARAGRAPH 2.11. After any Lender notifies Agent and Borrower of such a
Change of Law and until such Lender notifies Agent and Borrower that it
is no longer unlawful or impossible for such Lender to make or maintain
a LIBOR Loan, all Loans of such Lender shall be Base Rate Loans.
(c) INCREASED COSTS. If, after the date of this Agreement, any
Change of Law:
(i) Shall subject any Lender to any tax, duty or
other charge with respect to any LIBOR Loan, or shall change
the basis of taxation of payments by Borrower to any Lender on
such a LIBOR Loan or in respect to such a LIBOR Loan under
this Agreement (except for changes in the rate of taxation on
the overall net income of any Lender imposed by its
jurisdiction of incorporation or the jurisdiction in which its
principal executive office is located); or
(ii) Shall impose, modify or hold applicable any
reserve (excluding any Reserve Requirement or other reserve to
the extent included in the calculation of the LIBO Rate for
any Loans), special deposit or similar requirement against
assets held by, deposits or other liabilities in or for the
account of, advances or loans by, or any other acquisition of
funds by any Lender for any LIBOR Loan; or
(iii) Shall impose on any Lender any other condition
related to any LIBOR
Loan or such Lender's Commitment;
And the effect of any of the foregoing is to increase the cost to such
Lender of making, renewing, or maintaining any such LIBOR Loan or its
Commitment or to reduce any amount receivable by such Lender hereunder;
then Borrower shall from time to time, within five (5) days after
demand by such Lender, pay to such Lender additional amounts sufficient
to reimburse such Lender for such increased costs or to compensate such
Lender for such reduced amounts. A certificate as to the amount of such
increased costs or reduced amounts, submitted by such Lender to
Borrower shall, in the absence of manifest error, be conclusive and
binding on Borrower for all purposes. The obligations of Borrower under
this SUBPARAGRAPH 2.09(c) shall survive the payment and performance of
the Obligations and the termination of this Agreement.
(d) CAPITAL REQUIREMENTS. If, after the date of this
Agreement, any Lender determines that (i) any Change of Law affects the
amount of capital required or expected to be maintained by such Lender
or any Person controlling such Lender (a "CAPITAL ADEQUACY
REQUIREMENT") and (ii) the amount of capital maintained by such Lender
or such Person which is attributable to or based upon the Loans, the
Commitments or this Agreement must be increased as a result of such
Capital Adequacy Requirement (taking into account such Lender's or such
Person's policies with respect to capital adequacy), Borrower shall pay
to such Lender or such Person, within five (5) days after demand of
such Lender, such amounts as such Lender or such Person shall determine
are necessary to compensate such Lender or such Person for the
increased costs to such Lender or such Person of such increased
capital. A certificate of any Lender setting forth in reasonable detail
the computation of any such increased costs, delivered by such Lender
to Borrower shall, in the absence of manifest error, be conclusive and
binding on Borrower for all purposes. The obligations of Borrower under
this SUBPARAGRAPH 2.09(d) shall survive the payment and performance of
the Obligations and the termination of this Agreement.
(e) MITIGATION. Any Lender which becomes aware of (i) any
Change of Law which will make it unlawful or impossible for such Lender
to make or maintain any LIBOR Loan or (ii) any Change of Law or other
event or condition which will obligate Borrower to pay any amount
pursuant to SUBPARAGRAPH 2.09(c) or SUBPARAGRAPH 2.09(d) shall notify
Borrower and Agent thereof as promptly as practical. If any Lender has
given notice of any such Change of Law or other event or condition and
thereafter becomes aware that such Change of Law or other event or
condition has ceased to exist, such Lender shall notify Borrower and
Agent thereof as promptly as practical. Each Lender affected by any
Change of Law which makes it unlawful or impossible for such Lender to
make or maintain any LIBOR Loan or to which Borrower is obligated to
pay any amount pursuant to SUBPARAGRAPH 2.09(c) or SUBPARAGRAPH 2.09(d)
shall use reasonable commercial efforts (including changing the
jurisdiction of its Applicable Lending Office) to avoid the effect of
such Change of Law or to avoid or materially reduce any amounts which
Borrower is obligated to pay pursuant to SUBPARAGRAPH 2.09(c) or
SUBPARAGRAPH 2.09(d) if, in the reasonable opinion of such Lender, such
efforts would not be disadvantageous to such Lender or contrary to such
Lender's normal banking practices.
2.10. TAXES ON PAYMENTS.
(a) PAYMENTS FREE OF TAXES. All payments made by Borrower
under this Agreement and the other Credit Documents shall be made free
and clear of, and without deduction or withholding for or on account
of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority (except net income taxes and franchise taxes in
lieu of net income taxes imposed on Agent or any Lender by its
jurisdiction of incorporation or the jurisdiction in which its
Applicable Lending Office is located) (all such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions and withholdings
being hereinafter called "TAXES"). If any Taxes are required to be
withheld from any amounts payable to Agent or any Lender hereunder or
under the other Credit Documents, the amounts so payable to Agent or
such Lender shall be increased to the extent necessary to yield to
Agent or such Lender (after payment of all Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the other Credit Documents. Whenever
any Taxes are payable by Borrower, as promptly as possible thereafter,
Borrower shall send to Agent for its own account or for the account of
such Lender, as the case may be, a certified copy of an original
official receipt received by Borrower showing payment thereof. If
Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to Agent the required receipts or other
required documentary evidence, Borrower shall indemnify Agent and the
Lenders for any incremental taxes, interest or penalties that may
become payable by Agent or any Lender as a result of any such failure.
The obligations of Borrower under this SUBPARAGRAPH 2.10(a) shall
survive the payment and performance of the Obligations and the
termination of this Agreement.
(b) WITHHOLDING EXEMPTION CERTIFICATES. On or prior to the
date of the initial Borrowing or, if such date does not occur within
thirty (30) days after the date of this Agreement, by the end of such
30-day period, each Lender which is not organized under the laws of the
United States of America or a state thereof shall deliver to Borrower
and Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 (or successor applicable form), as the case
may be, certifying in each case that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any
United States federal income taxes. Each Lender which delivers to
Borrower and Agent a Form 1001 or 4224 pursuant to the immediately
preceding sentence further undertakes to deliver to Borrower and Agent
two further copies of Form 1001 or 4224 (or successor applicable
forms), as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form previously delivered by such
Lender to Borrower and Agent, certifying that such Lender is entitled
to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes. Each Lender
which is not organized under the laws of the United States of America
or a state thereof further agrees (i) promptly to notify Agent and
Borrower of any change of circumstances (including without limitation
any change in any treaty, law or regulation) which would prevent such
Lender from receiving payments hereunder
without any deduction or withholding of United States federal income
tax and (ii) to furnish to Agent and Borrower any other manner of
certification as Agent or Borrower may reasonably request to establish
the right of such Lender to receive payments hereunder without any
deduction or withholding of United States federal income tax.
(c) MITIGATION. If Agent or any Lender claims any additional
amounts to be payable to it pursuant to this PARAGRAPH 2.10, such
Person shall use reasonable commercial efforts to file any certificate
or document requested in writing by Borrower (including without
limitation copies of Internal Revenue Service Form 1001 (or successor
forms) reflecting a reduced rate of withholding) or to change the
jurisdiction of its Applicable Lending Office if the making of such a
filing or such change in the jurisdiction of its Applicable Lending
Office would avoid the need for or materially reduce the amount of any
such additional amounts which may thereafter accrue and if, in the
reasonable opinion of such Person, in the case of a change in the
jurisdiction of its Applicable Lending Office, such change would not be
disadvantageous to such Person or contrary to such Person's normal
banking practices.
(d) TAX RETURNS. Nothing contained in this PARAGRAPH 2.10
shall require Agent or any Lender to make available any of its tax
returns (or any other information relating to its taxes which it deems
to be confidential).
2.11. FUNDING LOSS INDEMNIFICATION. If Borrower shall (a) repay, prepay
or convert any LIBOR Loan on any day other than the last day of an Interest
Period therefor (whether a scheduled payment, an optional prepayment or
conversion, a mandatory prepayment or conversion, a payment upon acceleration or
otherwise), (b) fail to borrow any LIBOR Loan for which a Notice of Borrowing
has been delivered to Agent (whether as a result of the failure to satisfy any
applicable conditions or otherwise) or (c) fail to convert any Loans into LIBOR
Loans in accordance with a Notice of Conversion delivered to Agent (whether as a
result of the failure to satisfy any applicable conditions or otherwise),
Borrower shall, upon demand by any Lender, reimburse such Lender for and hold
such Lender harmless from all costs and losses incurred by such Lender as a
result of such repayment, prepayment, conversion or failure. Borrower
understands that such costs and losses may include, without limitation, losses
incurred by a Lender as a result of funding and other contracts entered into by
such Lender to fund a LIBOR Loan. Each Lender demanding payment under this
PARAGRAPH 2.11 shall deliver to Borrower, with a copy to Agent, a certificate
setting forth the amount of costs and losses for which demand is made, which
certificate shall set forth in reasonable detail the calculation of the amount
demanded. Such a certificate so delivered to Borrower shall constitute PRIMA
FACIE evidence of such costs and losses. The obligations of Borrower under this
PARAGRAPH 2.11 shall survive the payment and performance of the Obligations and
the termination of this Agreement.
2.12. GUARANTIES.
(a) GUARANTIES. The Obligations shall be secured by an Amended
and Restated Guaranty in the form of EXHIBIT F, duly executed by each
Domestic Subsidiary of Borrower (the "AMENDED AND RESTATED GUARANTY").
(b) FURTHER ASSURANCES. Borrower shall deliver, or cause its
Subsidiaries to deliver, to Agent such additional guaranties and other
instruments, agreements, certificates, opinions and documents as
Required Lenders may reasonably request to cause all Domestic
Subsidiaries of Borrower to guarantee the Obligations on the terms set
forth in the Amended and Restated Guaranty and otherwise establish,
maintain, protect and evidence the rights provided to Agent, for the
benefit of Agents and the Lenders, pursuant to the Amended and Restated
Guaranty. Borrower shall fully cooperate with Agent and the Lenders and
perform all additional acts reasonably requested by Agent or any Lender
to effect the purposes of this PARAGRAPH 2.12.
2.13. REPLACEMENT OF LENDERS. If any Lender shall (a) suspend its
obligation to make or maintain LIBOR Loans pursuant to SUBPARAGRAPH 2.09(b) for
a reason which is not applicable to the Lenders (or a material number of the
Lenders) generally, or (b) demand any payment under SUBPARAGRAPH 2.09(c),
2.09(d) OR 2.10(a) for a reason which is not applicable to the Lenders (or a
material number of the Lenders) generally, then Agent may (or upon the written
request of Borrower so long as no Default or Event of Default shall have
occurred and be continuing, shall) replace such Lender (the "AFFECTED LENDER"),
or cause such affected Lender to be replaced, with another lender (the
"REPLACEMENT LENDER") satisfying the requirements of an Assignee Lender under
SUBPARAGRAPH 8.05(c), by having the affected Lender sell and assign all of its
rights and obligations under this Agreement and the other Credit Documents to
the replacement lender pursuant to SUBPARAGRAPH 8.05(c); PROVIDED, HOWEVER, that
if Borrower seeks to exercise such right, it must do so within one hundred
twenty (120) days after it first knows or should have known of the occurrence of
the event or events giving rise to such right, and neither Agent nor any Lender
shall have any obligation to identify or locate a replacement lender for
Borrower. Upon receipt by any affected Lender of a written notice from Agent
stating that Agent is exercising the replacement right set forth in this
PARAGRAPH 2.1e, such affected Lender shall sell and assign all of its rights and
obligations under this Agreement and the other Credit Documents to the
replacement lender pursuant to an Assignment Agreement and SUBPARAGRAPH 8.05(c)
for a purchase price equal to the sum of the principal amount of the affected
Lender's Loans so sold and assigned, all accrued and unpaid interest thereon and
its ratable share of all fees to which it is entitled.
SECTION III. CONDITIONS PRECEDENT.
3.1. INITIAL CONDITIONS PRECEDENT. The obligations of the Lenders to
make the Loans comprising the initial Borrowing are subject to receipt by Agent,
on or prior to the Closing Date, of each item listed in SCHEDULE 3.01, each in
form and substance satisfactory to Agent and each Lender, and with sufficient
copies for, Agent and each Lender.
3.2. CONDITIONS PRECEDENT TO EACH CREDIT EVENT. The occurrence of each
Credit Event (including the initial Borrowing) is subject to the further
conditions that:
(a) Borrower shall have delivered to Agent the Notice of
Borrowing, Notice of Conversion or Notice of Interest Period Selection,
as the case may be, for such Credit Event in accordance with this
Agreement; and
(b) On the date such Credit Event is to occur and after giving
effect to such Credit Event, the following shall be true and correct:
(i) The representations and warranties of Borrower
and its Subsidiaries set forth in PARAGRAPH 4.01 and in the
other Credit Documents are true and correct in all material
respects as if made on such date (except for representations
and warranties expressly made as of a specified date, which
shall be true as of such date);
(ii) No Default or Event of Default has occurred and
is continuing or will result from such Credit Event; and
(iii) All of the Credit Documents are in full force
and effect.
The submission by Borrower to Agent of each Notice of Borrowing, each
Notice of Conversion (other than a notice for a conversion to a Base
Rate Loan) and each Notice of Interest Period Selection shall be deemed
to be a representation and warranty by Borrower that each of the
statements set forth above in this SUBPARAGRAPH 3.02(b) is true and
correct as of the date of such notice.
3.3. COVENANT TO DELIVER. Borrower agrees (not as a condition but as a
covenant) to deliver to Agent each item required to be delivered to Agent as a
condition to the occurrence of any Credit Event if such Credit Event occurs.
Borrower expressly agrees that the occurrence of any such Credit Event prior to
the receipt by Agent of any such item shall not constitute a waiver by Agent or
any Lender of Borrower's obligation to deliver such item.
SECTION IV. REPRESENTATIONS AND WARRANTIES.
4.1. BORROWER'S REPRESENTATIONS AND WARRANTIES. In order to induce
Agent and the Lenders to enter into this Agreement, Borrower hereby represents
and warranties to Agent and the Lenders as follows:
(a) DUE INCORPORATION, QUALIFICATION, ETC. Each of Borrower
and Borrower's Subsidiaries (i) is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of organization; (ii) has the power and authority to own,
lease and operate its properties and carry on its business as now
conducted; and (iii) is duly qualified, licensed to do business and in
good standing as a foreign corporation in each jurisdiction where the
failure to be so qualified or licensed is reasonably likely to have a
Material Adverse Effect.
(b) AUTHORITY. The execution, delivery and performance by
Borrower of each Credit Document executed, or to be executed, by
Borrower and the consummation of the transactions contemplated thereby
(i) are within the power of Borrower and (ii) have been duly authorized
by all necessary actions on the part of Borrower.
(c) ENFORCEABILITY. Each Credit Document executed, or to be
executed, by Borrower
has been, or will be, duly executed and delivered by Borrower and
constitutes, or will constitute, a legal, valid and binding obligation
of Borrower, enforceable against Borrower in accordance with its terms,
except as limited by bankruptcy, insolvency or other laws of general
application relating to or affecting the enforcement of creditors'
rights generally and general principles of equity.
(d) NON-CONTRAVENTION. The execution and delivery by Borrower
of the Credit Documents executed by Borrower and the performance and
consummation of the transactions contemplated thereby do not (i)
violate any Requirement of Law applicable to Borrower; (ii) violate any
provision of, or result in the breach or the acceleration of, or
entitle any other Person to accelerate (whether after the giving of
notice or lapse of time or both), any Contractual Obligation of
Borrower; or (iii) result in the creation or imposition of any Lien (or
the obligation to create or impose any Lien) upon any property, asset
or revenue of Borrower (except such Liens as may be created in favor of
Agent pursuant to this Agreement or the other Credit Documents).
(e) APPROVALS. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental
Authority or other Person (including, without limitation, the
shareholders of any Person) is required in connection with the
execution and delivery of the Credit Documents executed by Borrower and
the performance and consummation of the transactions contemplated
thereby, except such as have been made or obtained and are in full
force and effect.
(f) NO VIOLATION OR DEFAULT. Neither Borrower nor any of its
Subsidiaries is in violation of or in default with respect to (i) any
Requirement of Law applicable to such Person; (ii) any Contractual
Obligation of such Person (nor is there any waiver in effect which, if
not in effect, would result in such a violation or default), where, in
each case, such violation or default is reasonably likely to have a
Material Adverse Effect. Without limiting the generality of the
foregoing, neither Borrower nor any of its Subsidiaries (A) has
violated any Environmental Laws, (B) has any liability under any
Environmental Laws or (C) has received notice or other communication of
an investigation or is under investigation by any Governmental
Authority having authority to enforce Environmental Laws, where such
violation, liability or investigation is reasonably likely to have a
Material Adverse Effect. No Event of Default or Default has occurred
and is continuing.
(g) LITIGATION. No actions (including, without limitation,
derivative actions), suits, proceedings or investigations are pending
or, to the knowledge of Borrower, threatened against Borrower or any of
its Subsidiaries at law or in equity in any court or before any other
Governmental Authority which (i) are reasonably likely (alone or in the
aggregate) to have a Material Adverse Effect or (ii) seek to enjoin,
either directly or indirectly, the execution, delivery or performance
by Borrower of the Credit Documents or the transactions contemplated
thereby.
(h) TITLE; POSSESSION UNDER LEASES. Borrower and its
Subsidiaries own and have good and marketable title, or a valid
leasehold interest in, all their respective properties
and assets as reflected in the most recent Financial Statements
delivered to Agent (except those assets and properties disposed of
in the ordinary course of business or otherwise in compliance with
this Agreement since the date of such Financial Statements) and all
respective assets and properties acquired by Borrower and its
Subsidiaries since such date (except those disposed of in the
ordinary course of business or otherwise in compliance with this
Agreement). Such assets and properties are subject to no Lien,
except for Permitted Liens. Each of Borrower and its Subsidiaries
has complied with all obligations under all leases to which it is a
party and enjoys peaceful and undisturbed possession under such
leases except where the failure to so comply or enjoy is not
reasonably likely to have a Material Adverse Effect.
(i) FINANCIAL STATEMENTS. The Financial Statements of Borrower
and its Subsidiaries which have been delivered to Agent, (i) are in
accordance with the books and records of Borrower and its Subsidiaries,
which have been maintained in accordance with good business practice;
(ii) have been prepared in conformity with GAAP; and (iii) fairly
present the financial conditions and results of operations of Borrower
and its Subsidiaries as of the date thereof and for the periods covered
thereby. Neither Borrower nor any of its Subsidiaries has any
Contingent Obligations or other outstanding obligations which are
material in the aggregate, except as disclosed in the audited Financial
Statements dated September 27, 1998, furnished by Borrower to Agent
prior to the date hereof, or in the Financial Statements delivered to
Agent pursuant to CLAUSE (i) OR (ii) OF SUBPARAGRAPH 5.01(a).
(j) NO AGREEMENTS TO SELL ASSETS; ETC. Neither Borrower nor
any of its Subsidiaries has any legal obligation, absolute or
contingent, to any Person to sell all or substantially all of the
assets of Borrower or, except to the extent permitted pursuant to
SUBPARAGRAPH 5.02(d) OR 5.02(e), any of its Subsidiaries (other than
sales in the ordinary course of business), or to effect any merger,
consolidation or other reorganization of Borrower or, except to the
extent permitted pursuant to SUBPARAGRAPH 5.02(d) OR 5.02(e), any of
its Subsidiaries or to enter into any agreement with respect thereto.
(k) EMPLOYEE BENEFIT PLANS.
(i) Based on the latest valuation of each Employee
Benefit Plan that either Borrower or any ERISA Affiliate
maintains or contributes to, or has any obligation under
(which occurred within twelve months of the date of this
representation), the aggregate benefit liabilities of such
plan within the meaning of Section 4001 of ERISA did not
exceed the aggregate value of the assets of such plan. Neither
Borrower nor any ERISA Affiliate has any liability with
respect to any post-retirement benefit under any Employee
Benefit Plan which is a welfare plan (as defined in section
3(1) of ERISA), other than liability for health plan
continuation coverage described in Part 6 of Title I(B) of
ERISA, which liability for health plan contribution coverage
is not reasonably likely to have a Material Adverse Effect.
(ii) Each Employee Benefit Plan complies, in both
form and operation, in all material respects, with its terms,
ERISA and the IRC, and no condition exists or event has
occurred with respect to any such plan which would result in
the incurrence by either Borrower or any ERISA Affiliate of
any material liability, fine or penalty. Each Employee Benefit
Plan, related trust agreement, arrangement and commitment of
Borrower or any ERISA Affiliate is legally valid and binding
and in full force and effect. No Employee Benefit Plan is
being audited or investigated by any government agency or is
subject to any pending or threatened claim or suit. Neither
Borrower nor any ERISA Affiliate nor any fiduciary of any
Employee Benefit Plan has engaged in a prohibited transaction
under section 406 of ERISA or section 4975 of the IRC.
(iii) Neither Borrower nor any ERISA Affiliate
contributes to or has any material contingent obligations to
any Multiemployer Plan. Neither Borrower nor any ERISA
Affiliate has incurred any material liability (including
secondary liability) to any Multiemployer Plan as a result of
a complete or partial withdrawal from such Multiemployer Plan
under Section 4201 of ERISA or as a result of a sale of assets
described in Section 4204 of ERISA. Neither Borrower nor any
ERISA Affiliate has been notified that any Multiemployer Plan
is in reorganization or insolvent under and within the meaning
of Section 4241 or Section 4245 of ERISA or that any
Multiemployer Plan intends to terminate or has been terminated
under Section 4041A of ERISA.
(l) OTHER REGULATIONS. Borrower is not subject to regulation
under the Investment Company Act of 1940, the Public Utility Holding
Company Act of 1935, the Federal Power Act, any state public utilities
code or to any other Governmental Rule limiting its ability to incur
indebtedness.
(m) PATENT AND OTHER RIGHTS. Borrower and its Subsidiaries own
or license (or could obtain such ownership or license on terms not
materially adverse to Borrower and its Subsidiaries, taken as a whole)
under validly existing agreements, and have the full right to license
in the ordinary course of business as currently contemplated without
the consent of any other Person, all patents, licenses, trademarks,
trade names, trade secrets, service marks, copyrights and all rights
with respect thereto, which are required to conduct their businesses as
now conducted.
(n) GOVERNMENTAL CHARGES. Borrower and its Subsidiaries have
filed or caused to be filed all tax returns which are required to be
filed by them. Borrower and its Subsidiaries have paid, or made
provision for the payment of, all taxes and other Governmental Charges
which have or may have become due pursuant to said returns or otherwise
and all other indebtedness, except such Governmental Charges or
indebtedness, if any, which are being contested in good faith and as to
which adequate reserves (determined in accordance with GAAP) have been
provided or which are not reasonably likely to have a Material Adverse
Effect if unpaid.
(o) MARGIN STOCK. Borrower owns no Margin Stock which would
cause it to be in violation of SUBPARAGRAPH 5.01(f).
(p) SUBSIDIARIES, ETC. Set forth in SCHEDULE 4.01(q) (as
supplemented by Borrower from time to time in a written notice to
Agent) is a complete list of all of Borrower's Subsidiaries; the
jurisdiction of incorporation of each such Subsidiary; and the
percentage of each such Subsidiary's outstanding Equity Securities
owned directly by Borrower or another Subsidiary of Borrower. Except
for such Subsidiaries, Borrower has no Subsidiaries, is not a partner
in any partnership or a joint venturer in any joint venture.
(q) CATASTROPHIC EVENTS. Neither Borrower nor any of its
Subsidiaries and none of their properties is or has been affected by
any fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or other casualty
that is reasonably likely to have a Material Adverse Effect. There are
no disputes presently subject to grievance procedure, arbitration or
litigation under any of the collective bargaining agreements,
employment contracts or employee welfare or incentive plans to which
Borrower or any of its Subsidiaries is a party, and there are no
strikes, lockouts, work stoppages or slowdowns, or, to the best
knowledge of Borrower, jurisdictional disputes or organizing activities
occurring or threatened which alone or in the aggregate are reasonably
likely to have a Material Adverse Effect.
(r) BURDENSOME CONTRACTUAL OBLIGATIONS, ETC. Neither Borrower
nor any of its Subsidiaries and none of their properties is subject to
any Contractual Obligation or Requirement of Law which is reasonably
likely to have a Material Adverse Effect.
(s) NO MATERIAL ADVERSE EFFECT. No event has occurred and no
condition exists which is reasonably likely to have a Material Adverse
Effect.
(t) ACCURACY OF INFORMATION FURNISHED. None of the Credit
Documents and none of the other certificates, statements or information
furnished to Agent or any Lender by or on behalf of Borrower or any of
its Subsidiaries in connection with the Credit Documents or the
transactions contemplated thereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that it is recognized by Agent and the Lenders that
projections and forecasts provided and developed by Borrower, while
reflecting Borrower's good faith projections or forecasts based upon
methods and data Borrower believed to be reasonable and accurate when
made, are not to be viewed as facts and that actual results during the
period or periods covered by any such projections and forecasts may
differ from the projected or forecasted results.
(u) YEAR 2000 COMPATIBILITY. Borrower and its Subsidiaries
have reviewed the areas within their business and operations which
could be adversely affected by, and have developed or are developing a
program to address on a timely basis, the "Year 2000 Problem" (that is,
the risk that computer applications used by Borrower and its
Subsidiaries may be unable to recognize and perform properly
date-sensitive functions
involving certain dates prior to and any date on or after December 31,
1999), and have made related appropriate inquiry of material
suppliers and vendors. Based on such review and program, Borrower
believes that the "Year 2000 Problem" will not have a Material
Adverse Effect.
4.2. REAFFIRMATION. Borrower shall be deemed to have reaffirmed, for
the benefit of the Lenders and Agent, each representation and warranty contained
in PARAGRAPH 4.01 and in the other Credit Documents on and as of the date of
each Credit Event (except for representations and warranties expressly made as
of a specified date, which shall be true as of such date).
SECTION V. COVENANTS.
5.1. AFFIRMATIVE COVENANTS. Until the termination of this Agreement
and the satisfaction in full by Borrower of all Obligations, Borrower will
comply, and will cause compliance, with the following affirmative covenants,
unless Required Lenders shall otherwise consent in writing:
(a) FINANCIAL STATEMENTS, REPORTS, ETC. Borrower shall furnish
to Agent, with sufficient copies for each Lender, the following, each
in such form and such detail as Agent or the Required Lenders shall
reasonably request:
(i) As soon as available and in no event later than
fifty (50) days after the last day of the first three fiscal
quarters of Borrower in each fiscal year, a copy of the
Financial Statements of Borrower and its Subsidiaries
(prepared on a consolidated basis) for such quarter and for
the fiscal year to date, certified by a Responsible Officer of
Borrower to present fairly the financial condition, results of
operations and other information reflected therein and to have
been prepared in accordance with GAAP (subject to normal
year-end audit adjustments);
(ii) As soon as available and in no event later than
one hundred, twenty (120) days after the close of each fiscal
year of Borrower, (A) copies of the audited Financial
Statements of Borrower and its Subsidiaries (prepared on a
consolidated basis) for such year, prepared by independent
certified public accountants of recognized national standing
acceptable to Agent and (B) copies of the unqualified opinions
(or qualified opinions reasonably acceptable to Agent) and
management letters delivered by such accountants in connection
with all such Financial Statements;
(iii) Contemporaneously with the quarterly and
year-end Financial Statements required by the foregoing
CLAUSES (i) AND (ii), a compliance certificate of a
Responsible Officer of Borrower which (A) states that no Event
of Default and no Default has occurred and is continuing, or,
if any such Event of Default or Default has occurred and is
continuing, a statement as to the nature thereof and what
action Borrower proposes to take with respect thereto, (B)
sets forth, for the quarter or year covered by such Financial
Statements or as of the last day of such quarter or year (as
the case may be), the calculation of the financial ratios and
tests provided in PARAGRAPH 5.03, (C) sets forth, as of the
last day of such quarter
or year, the amounts at such time of all Guaranty Obligations
and all obligations on account of Rate Contracts and Surety
Instruments of Borrower and its Subsidiaries to others,
(D) states that the year 2000 remediation efforts of Borrower
and its Subsidiaries are proceeding as scheduled, and
(E) indicates whether an auditor, regulator or third party
consultant has issued a management letter or other
communication regarding the year 2000 exposure, program or
progress of Borrower and/or its Subsidiaries;
(iv) As soon as possible and in no event later than
five (5) Business Days after any Responsible Officer of
Borrower (or, in the case of (A) below, any Responsible
Officer or any Vice President of Human Resources) knows of the
occurrence or existence of (A) any Reportable Event under any
Employee Benefit Plan or Multiemployer Plan; (B) any actual or
threatened litigation, suits, claims or disputes against
Borrower or any of its Subsidiaries which could reasonably be
expected to result in monetary damages payable by Borrower or
its Subsidiaries of $1,000,000 or more (alone or in the
aggregate); (C) any other event or condition which is
reasonably likely to have a Material Adverse Effect; or (D)
any Default or Event of Default; the statement of the
President, Chief Financial Officer or Vice President-Finance
of Borrower setting forth details of such event, condition,
Default or Event of Default and the action which Borrower
proposes to take with respect thereto;
(v) As soon as available and in no event later than
five (5) Business Days after they are sent, made available or
filed, copies of (A) all registration statements and reports
filed by Borrower or any of its Subsidiaries with any
securities exchange or the Securities and Exchange Commission
(including, without limitation, all 10-Q, 10-K and 8-K
reports); (B) all reports, proxy statements and financial
statements sent or made available by Borrower or any of its
Subsidiaries to its security holders; and (C) all press
releases and other similar public concerning any material
developments in the business of Borrower or any of its
Subsidiaries made available by Borrower or any of its
Subsidiaries to the public generally;
(vi) As soon as available and in no event later than
thirty (30) days before the first day of each fiscal year of
Borrower, the consolidated plan and forecast of Borrower and
its Subsidiaries for such fiscal year, including quarterly
cash flow projections; and
(vii) Such other instruments, agreements,
certificates, opinions, statements, documents and information
relating to the operations or condition (financial or
otherwise) of Borrower or its Subsidiaries, and compliance by
Borrower with the terms of this Agreement and the other Credit
Documents as Agent may from time to time reasonably request.
(b) BOOKS AND RECORDS. Borrower and its Subsidiaries shall at
all times keep proper books of record and account in which full, true
and correct entries will be made of their
transactions in accordance with GAAP.
(c) INSPECTIONS. Borrower and its Subsidiaries shall permit
any Person designated by any Lender, upon reasonable notice and during
normal business hours, to visit and inspect any of the properties and
offices of Borrower and its Subsidiaries, to examine the books and
records of Borrower and its Subsidiaries and make copies thereof and to
discuss the affairs, finances and business of Borrower and its
Subsidiaries with, and to be advised as to the same by, their officers,
auditors and accountants, all at such times and intervals as any Lender
may reasonably request.
(d) INSURANCE. Borrower and its Subsidiaries shall:
(i) Carry and maintain insurance of the types and in
the amounts customarily carried from time to time during the
term of this Agreement by others engaged in substantially the
same business as such Person and operating in the same
geographic area as such Person, including, but not limited to,
fire, public liability, property damage and worker's
compensation;
(ii) Carry and maintain each policy for such
insurance with (A) a company which is rated A or better by
A.M. Best and Company at the time such policy is placed and at
the time of each annual renewal thereof or (B) any other
insurer which is reasonably satisfactory to Agent; and
(iii) Deliver to Agent from time to time, as Agent
may request, schedules setting forth all insurance then in
effect.
(e) GOVERNMENTAL CHARGES. Borrower and its Subsidiaries shall
promptly pay and discharge when due all taxes and other Governmental
Charges prior to the date upon which penalties accrue thereon, except
such taxes and other Governmental Charges as may in good faith be
contested or disputed, or for which arrangements for deferred payment
have been made, provided that in each such case appropriate reserves
are maintained to the reasonable satisfaction of Agent.
(f) USE OF PROCEEDS. Borrower shall use the proceeds of the
Loans only for the purposes set forth in SUBPARAGRAPH 2.01(g). Borrower
shall not use any part of the proceeds of any Loan, directly or
indirectly, for the purpose of purchasing or carrying any Margin Stock
or for the purpose of purchasing or carrying or trading in any
securities under such circumstances as to involve Borrower, any Lender
or Agent in a violation of Regulations T, U or X issued by the Federal
Reserve Board.
(g) GENERAL BUSINESS OPERATIONS. Except to the extent
otherwise permitted pursuant to SUBPARAGRAPH 5.02(d), each of Borrower
and its Subsidiaries shall (i) preserve and maintain its corporate
existence and all of its rights, privileges and franchises reasonably
necessary to the conduct of its business; PROVIDED, HOWEVER, that
Borrower may cause any wholly-owned Subsidiary to be liquidated if
Borrower's board of directors determines that it is in the best
interests of Borrower and its Subsidiaries, taken as a whole and the
assets of such dissolved wholly-owned Subsidiary are placed with
Borrower or any Guarantor hereunder; (ii) conduct its business
activities in compliance with all Requirements of Law and Contractual
Obligations applicable to such Person, the violation of which is
reasonably likely to have a Material Adverse Effect; and (iii) keep all
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted, except where any failure to
do so is not reasonably likely to have a Material Adverse Effect.
Borrower shall maintain its chief executive office and principal place
of business in the United States and shall not relocate its chief
executive office or principal place of business outside of California
except upon not less than ninety (90) days prior written notice to
Agent.
(h) YEAR 2000 COMPATIBILITY. Borrower and its Subsidiaries
shall take all acts reasonably necessary to ensure that all software,
hardware, firmware, equipment, goods and systems utilized by or
material to their business operations or financial condition will
properly perform date sensitive functions before, during and after the
year 2000. At the request of Agent, Borrower shall provide to Agent
such certifications or other evidence of compliance with this
SUBPARAGRAPH 5.01(h) as Agent may from time to time require.
(i) PARI PASSU RANKING. Borrower shall take, or cause to be
taken, all actions necessary to ensure that the Obligations of Borrower
are and continue to rank at least PARI PASSU in right of payment with
all other unsecured Indebtedness of Borrower.
5.2. NEGATIVE COVENANTS. Until the termination of this Agreement and
the satisfaction in full by Borrower of all Obligations, Borrower will comply,
and will cause compliance, with the following negative covenants, unless
Required Lenders shall otherwise consent in writing:
(a) INDEBTEDNESS. Neither Borrower nor any of its Subsidiaries
shall create, incur, assume or permit to exist any Indebtedness except
for the following ("PERMITTED INDEBTEDNESS"):
(i) The Obligations of Borrower under the Credit
Documents;
(ii) Indebtedness of Borrower and its Subsidiaries
listed in the Disclosure Letter and existing on the date of
this Agreement;
(iii) Indebtedness of Borrower and its Subsidiaries
arising from the endorsement of instruments for collection in
the ordinary course of Borrower's or a Subsidiary's business;
(iv) Indebtedness of Borrower and its Subsidiaries
under Rate Contracts, provided that (A) all such arrangements
are entered into in connection with bona fide hedging
operations and not for speculation and (B) the aggregate net
amount owed by Borrower and its Subsidiaries under, on account
of or otherwise in connection with such Rate Contracts does
not exceed $5,000,000 (marked to market) at any time;
(v) Indebtedness of Borrower and its Subsidiaries
under purchase money and construction loans and Capital Leases
incurred by Borrower or any of its Subsidiaries to finance the
acquisition by such Person of real property, fixtures or
equipment or the construction of improvements to real property
provided that (A) in each case, (y) such Indebtedness is
incurred by such Person at the time of, or not later than
sixty (60) days after, the acquisition by such Person of the
property so financed or so constructed and (z) such
Indebtedness does not exceed the purchase price or
construction price (including acquisition of fixtures) of the
property so financed or so constructed and (B) the aggregate
amount of such Indebtedness outstanding at any time does not
exceed $5,000,000;
(vi) Indebtedness of Borrower and its Subsidiaries
under initial or successive refinancings of any Indebtedness
permitted by CLAUSE (ii) above, provided that (A) the
principal amount of any such refinancing does not exceed the
principal amount of the Indebtedness being refinanced and (B)
the material terms and provisions of any such refinancing
(including maturity, redemption, prepayment, default and
subordination provisions) are no less favorable to the Lenders
than the Indebtedness being refinanced;
(vii) Indebtedness of Borrower and its Subsidiaries
with respect to Surety Instruments in the ordinary course of
business, provided that the aggregate amount of the
obligations secured by such Surety Instruments at any time
does not exceed $8,000,000;
(viii) Guaranty Obligations of Borrower in respect of
Permitted Indebtedness of its Subsidiaries;
(ix) Guaranty Obligations incurred by Borrower in
connection with sales by Borrower of promissory notes,
accounts receivable and other indebtedness owed to Borrower
(including, without limitation, obligations under Borrower
Note Guaranties), provided that the aggregate amount of all
such notes, receivables and other indebtedness outstanding and
so guaranteed by Borrower does not exceed $25,000,000 at any
time;
(x) Indebtedness of Borrower to any of its
Subsidiaries, Indebtedness of any of Borrower's Subsidiaries
to Borrower or Indebtedness of any of Borrower's Subsidiaries
to any of Borrower's other Subsidiaries, provided that any
Indebtedness of Borrower to any of its Subsidiaries and any
Indebtedness of any of Borrower's Subsidiaries to Borrower
shall be subject to SUBPARAGRAPH 5.02(j);
(xi) Unsecured Indebtedness of Borrower, provided
that (A) the Indebtedness arising under this Agreement shall
at all times rank at least PARI PASSU in right of payment with
such unsecured Indebtedness, (B) such unsecured Indebtedness
does not contain material provisions that are more restrictive
to Borrower and its Subsidiaries than the material provisions
contained in this Agreement, (C) no principal payable in
connection with such unsecured Indebtedness is scheduled for
payment on or prior to the Maturity Date, (D) the Net Proceeds
of such unsecured Indebtedness are applied to prepay the Loans
pursuant to CLAUSE (ii) OF SUBPARAGRAPH 2.04(c) and reduce the
Total Commitment pursuant to SUBPARAGRAPH 2.02(b), and (E) the
aggregate principal amount of all such unsecured Indebtedness
outstanding at any time (measured at the time of the
incurrence of such unsecured Indebtedness) does not exceed
Fifty Million Dollars ($50,000,000); and
(xii) Other Indebtedness of Borrower and its
Subsidiaries, provided that the aggregate principal amount of
all such Indebtedness does not exceed $5,000,000 at any time
(b) LIENS. Neither Borrower nor any of its Subsidiaries shall
create, incur, assume or permit to exist any Lien on or with respect to
any of its assets or property of any character, whether now owned or
hereafter acquired, except for the following ("PERMITTED LIENS"):
(i) Liens granted to Agent or any Lender
pursuant to any Credit Documents to secure the Obligations;
(ii) Liens listed in the Disclosure Letter and
existing on the date of this Agreement;
(iii) Liens for taxes or other Governmental Charges
not at the time delinquent or thereafter payable without
penalty or being contested in good faith, provided that
adequate reserves for the payment thereof have been
established in accordance with GAAP;
(iv) Liens of carriers, warehousemen, mechanics,
materialmen, vendors, and landlords and other similar Liens
imposed by law incurred in the ordinary course of business for
sums not overdue or being contested in good faith, provided
that adequate reserves for the payment thereof have been
established in accordance with GAAP;
(v) Deposits under workers' compensation,
unemployment insurance and social security laws or to secure
the performance of bids, tenders, contracts (other than for
the repayment of borrowed money) or leases, or to secure
statutory obligations of surety or appeal bonds or to secure
indemnity, performance or other similar bonds in the ordinary
course of business;
(vi) Zoning restrictions, easements, rights-of-way,
title irregularities and other similar encumbrances, which
alone or in the aggregate are not substantial in amount and do
not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business
of Borrower or any of its Subsidiaries;
(vii) Banker's Liens and similar Liens (including
set-off rights) in respect of bank deposits;
(viii) Liens on property or assets of any corporation
which becomes a Subsidiary of Borrower after the date of this
Agreement, provided that (A) such Liens exist at the time of
such acquisition and (B) such Liens were not created in
contemplation of such acquisition;
(ix) Judgment Liens, provided that the judgment does
not yet constitute an Event of Default under SUBPARAGRAPH
6.01(h);
(x) Rights of vendors or lessors under conditional
sale agreements, Capital Leases or other title retention
agreements, provided that, in each case, (A) such rights
secure or otherwise relate to Permitted Indebtedness, (B) such
rights do not extend to any property other than property
acquired with the proceeds of such Permitted Indebtedness and
(C) such rights do not secure any Indebtedness other than such
Permitted Indebtedness;
(xi) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of
customs duties and in connection with the importation of goods
in the ordinary course of Borrower's and its Subsidiaries'
businesses;
(xii) Liens securing Indebtedness which constitutes
Permitted Indebtedness under CLAUSE (v) OF SUBPARAGRAPH
5.02(a) provided that, in each case, such Lien (A) covers only
those assets (together with accessions thereto, replacements
and proceeds, including insurance proceeds, and substitutions
therefor), the acquisition of which was financed by such
Permitted Indebtedness, and (B) secures only such Permitted
Indebtedness;
(xiii) Liens on the property or assets of any
Subsidiary of Borrower in favor of Borrower or any other
Subsidiary of Borrower;
(xiv) Liens incurred in connection with the
extension, renewal or refinancing of the Indebtedness secured
by the Liens described in CLAUSE (ii) OR (xii) above, provided
that any extension, renewal or replacement Lien (A) is limited
to the property covered by the existing Lien and (B) secures
Indebtedness which is no greater in amount and has material
terms no less favorable to the Lenders than the Indebtedness
secured by the existing Lien;
(xv) Liens on insurance proceeds in favor of
insurance companies with respect to the financing of insurance
premiums;
(xvi) Leases and subleases of, and licenses and
sublicenses with respect to, property where Borrower or a
Subsidiary is the lessor or licensor (or sublessor or
sublicensor); provided that such leases, subleases, licenses
and sublicenses do not in the aggregate materially interfere
with the business of Borrower and its
Subsidiaries taken as a whole; and
(xvii) Other Liens in an amount not to exceed
$100,000.
(c) ASSET DISPOSITIONS. Neither Borrower nor any of its
Subsidiaries shall sell, lease, transfer or otherwise dispose of any of
its assets or property, whether now owned or hereafter acquired, except
for the following:
(i) Sales of inventory by Borrower and its
Subsidiaries in the ordinary course of their businesses;
(ii) Sales of surplus, damaged, worn or obsolete
equipment or inventory for not less than fair market value;
(iii) Sales or other dispositions of Investments
permitted by CLAUSE (i) OF SUBPARAGRAPH 5.02(e) for not less
than fair market value;
(iv) Sales or assignments of defaulted receivables to
a collection agency in the ordinary course of business;
(v) Sales or other dispositions of assets and
property by Borrower to any of Borrower's Subsidiaries or by
any of Borrower's Subsidiaries to Borrower or any of its other
Subsidiaries, provided that the terms of any such sales or
other dispositions by or to Borrower are terms which are no
less favorable to Borrower then would prevail in the market
for similar transactions between unaffiliated parties dealing
at arm's length;
(vi) Sales by Borrower of promissory notes, accounts
receivable and other indebtedness owed to Borrower, provided
that each such sale is (A) for cash consideration which is not
less than the fair market value of the promissory notes,
accounts receivable or other indebtedness sold and (B) without
any recourse to Borrower or any of its Subsidiaries except to
the extent permitted by CLAUSE (x) OF SUBPARAGRAPH 5.02(a);
(vii) Sales and licenses by Borrower of its
intellectual property, in the ordinary course of its business,
provided that, in each case, the terms of the transaction are
terms which then would prevail in the market for similar
transactions between unaffiliated parties dealing at arm's
length; and
(viii) Other sales, leases, transfers and disposals
of assets and property, provided that the aggregate value of
all such assets and property (based upon the greater of the
fair market or book value of such assets and property) so
sold, leased, transferred or otherwise disposed of in any
fiscal year does not exceed $10,000,000 per year.
(d) MERGERS, ACQUISITIONS, ETC. Neither Borrower nor any of
its Subsidiaries shall
consolidate with or merge into any other Person or permit any other
Person to merge into it, establish any Subsidiary or acquire any
Person or all or substantially all of the assets of any Person,
except that:
(i) Any Subsidiary of Borrower may merge into
Borrower or any wholly-owned Subsidiary of Borrower;
(ii) Borrower and its Subsidiaries may acquire any
Person or all or substantially all of the assets of any
Person, provided that (A) such Person or such assets are in a
line of business permitted under SUBPARAGRAPH 5.02(f) and (B)
immediately after giving effect to such acquisition, Borrower
is in compliance with each of the financial covenants
contained in PARAGRAPH 5.03; and
(iii) Borrower and its Subsidiaries may acquire any
other Person or all or substantially all of the assets of any
other Person, provided that the aggregate cost of such
acquisitions does not exceed ten percent (10%) of the Tangible
Net Worth of Borrower and its Subsidiaries. In determining the
aggregate amount of acquisitions permitted under this CLAUSE
(iii) at any time during a fiscal year subject to this clause,
the Tangible Net Worth of Borrower and its Subsidiaries as of
the last day of the most recently ended fiscal quarter shall
be used.
(e) INVESTMENTS. Neither Borrower nor any of its Subsidiaries
shall make any Investment except for Investments in the following:
(i) Investments of Borrower and its
Subsidiaries in Cash Equivalents;
(ii) Any transaction permitted by SUBPARAGRAPH
5.2(a) or CLAUSES (II), AND (III) OF SUBPARAGRAPH 5.02(d);
(iii) Investments by Borrower and its Subsidiaries in
each other, provided that the book value of Borrower's
aggregate Investment in its Foreign Subsidiaries shall not
exceed $5,000,000 at any time;
(iv) Investments consisting of loans to
employees, officers and directors;
(v) Investments arising under Rate Contracts
otherwise permitted pursuant to SUBPARAGRAPH 5.02(a)(iv);
(vi) Investments listed in the Disclosure Letter and
existing on the date of this Agreement;
(vii) Investments received in the settlement of
delinquent obligations or disputes, including Investments
received in connection with the bankruptcy or reorganization
of third Persons;
(viii) Investments consisting of deposit accounts
maintained in the ordinary course of business;
(ix) Investments accepted in connection with
dispositions of assets otherwise permitted under SUBPARAGRAPH
5.02(c); and
(x) Other Investments not otherwise permitted
pursuant to this SUBPARAGRAPH 5.02(e); provided that the
aggregate amount of such Investments does not exceed
$5,000,000 at any time.
(f) CHANGE IN BUSINESS. Neither Borrower nor any of its
Subsidiaries shall engage, either directly or indirectly through
Affiliates, in any business substantially different from businesses
associated or connected with radiology or cardiology information
systems, radiation planning, or servicing or manufacturing new or used
nuclear medical equipment.
(g) INDEBTEDNESS PAYMENTS, ETC. Neither Borrower nor any of
its Subsidiaries shall (i) prepay, redeem, purchase, defease or
otherwise satisfy in any manner prior to the scheduled payment thereof
any Indebtedness for borrowed money (other than the Obligations or any
Indebtedness owed by any Subsidiary to Borrower) or lease obligations
or (ii) amend, modify or otherwise change the terms of any document,
instrument or agreement evidencing Indebtedness for borrowed money
(other than the Obligations or any Indebtedness owed by any Subsidiary
to Borrower) or lease obligations so as to accelerate the scheduled
payment thereof.
(h) ERISA. Neither Borrower nor any ERISA Affiliate shall (i)
adopt or institute any Employee Benefit Plan that is an employee
pension benefit plan within the meaning of Section 3(2) of ERISA, (ii)
take any action which will result in the partial or complete
withdrawal, within the meanings of sections 4203 and 4205 of ERISA,
from a Multiemployer Plan, (iii) engage or permit any Person to engage
in any transaction prohibited by section 406 of ERISA or section 4975
of the IRC involving any Employee Benefit Plan or Multiemployer Plan
which would subject either Borrower or any ERISA Affiliate to any tax,
penalty or other liability including a liability to indemnify, (iv)
incur or allow to exist any accumulated funding deficiency (within the
meaning of section 412 of the IRC or section 302 of ERISA), (v) fail to
make full payment when due of all amounts due as contributions to any
Employee Benefit Plan or Multiemployer Plan, (vi) fail to comply with
the requirements of section 4980B of the IRC or Part 6 of Title I(B) of
ERISA, or (vii) adopt any amendment to any Employee Benefit Plan which
would require the posting of security pursuant to section 401(a)(29) of
the IRC, where singly or cumulatively, the above would have a Material
Adverse Effect.
(i) TRANSACTIONS WITH AFFILIATES. Neither Borrower nor any of
its Subsidiaries shall enter into any Contractual Obligation with any
Affiliate(other than Borrower or any direct or indirect wholly-owned
Subsidiary of Borrower) or engage in any other transaction with any
Affiliate (other than Borrower or any direct or indirect wholly-owned
Subsidiary of Borrower) except upon terms at least as favorable to
Borrower or such Subsidiary as an arms-length transaction with
unaffiliated Persons.
(j) CAPITAL EXPENDITURES. Borrower and its Subsidiaries shall
not make Capital
Expenditures on a consolidated basis in excess of $20,000,000 in any
fiscal year.
(k) ACCOUNTING CHANGES. Neither Borrower nor any of its
Subsidiaries shall change (i) its fiscal year (currently October 1
through September 30) or (ii) its accounting practices except as
required by GAAP.
5.3. FINANCIAL COVENANTS. Until the termination of this Agreement
and the satisfaction in full by Borrower of all Obligations, Borrower will
comply, and will cause compliance, with the following financial covenants,
unless Required Lenders shall otherwise consent in writing:
(a) EBITDAR/FIXED CHARGE COVERAGE RATIO. Borrower shall not
permit the EBITDAR/Fixed Charge Coverage Ratio of Borrower and its
Subsidiaries to be less than 3.25 to 1.00 on the last day of any
consecutive four-quarter period ending on the last day of each fiscal
quarter of Borrower.
(b) TANGIBLE NET WORTH. Borrower shall not permit the Tangible
Net Worth of Borrower and its Subsidiaries on the last day of any
fiscal quarter (any such date to be referred to herein as a
"determination date") which occurs on or after January 3, 1999 (such
date to be referred to herein as the "base date") to be less than the
sum on such determination date of the following:
(i) Eighty five percent (85%) of the Tangible
Net Worth of Borrower and its Subsidiaries on the base date;
PLUS
(ii) Fifty percent (50%) of the sum of the
consolidated quarterly net income (ignoring any quarterly
losses) of Borrower and its Subsidiaries for each quarter
after the base date through and including the quarter ending
immediately prior to the determination date;
PLUS
(iii) Seventy five percent (75%) of the Net Proceeds
realized by Borrower and its Subsidiaries from the issuance
and/or sale of Equity Securities during the period commencing
on the base date and ending on the determination date;
MINUS
(iv) If the determination date is after the date of
any permitted acquisition by Borrower pursuant to SUBPARAGRAPH
5.02(d), an amount equal to the after-tax sum of the
Acquisition In-Process R&D Charges taken by Borrower during
any such fiscal quarter.
(c) DEBT/EBITDA RATIO. Borrower shall not permit the
Debt/EBITDA Ratio of Borrower and its Subsidiaries to be greater than
2.50 to 1.00 on the last day of any fiscal quarter.
(d) PROFITABILITY. Borrower shall not permit the consolidated
net income of Borrower and its Subsidiaries for any fiscal quarter to
be less than $1.00. In calculating the consolidated net income of
Borrower and its Subsidiaries for any quarter for the purposes of this
subparagraph, an amount equal to the after-tax sum of any Acquisition
In-Process R&D Charges taken by Borrower during such fiscal quarter
shall be ignored.
SECTION VI. DEFAULT.
6.1. EVENTS OF DEFAULT. The occurrence or existence of any one or more
of the following shall constitute an "EVENT OF DEFAULT" hereunder:
(a) NON-PAYMENT. Borrower shall (i) fail to pay within one (1)
day after the same becomes due any principal of any Loan or (ii) fail
to pay within five (5) days after the same becomes due any interest,
fees or other amount required under the terms of this Agreement or any
of the other Credit Documents; or
(b) SPECIFIC DEFAULTS. Borrower or any of its Subsidiaries
shall fail to observe or perform any covenant, obligation, condition or
agreement set forth in SUBPARAGRAPH 5.01(d), PARAGRAPH 5.02 or
PARAGRAPH 5.03; or
(c) OTHER DEFAULTS. Borrower or any of its Subsidiaries shall
fail to observe or perform any other covenant, obligation, condition or
agreement contained in this Agreement or the other Credit Documents and
such failure shall continue for twenty (20) days after the earlier of
(i) the date a Responsible Officer first knew or should have known of
such failure and (ii) the date Agent delivers to Borrower a notice of
such failure; or
(d) REPRESENTATIONS AND WARRANTIES. Any representation,
warranty, certificate, information or other statement (financial or
otherwise) made or furnished by or on behalf of Borrower or any of its
Subsidiaries to Agent or any Lender in or in connection with this
Agreement or any of the other Credit Documents, or as an inducement to
Agent or any Lender to enter into this Agreement, shall be false,
incorrect, incomplete or misleading in any material respect when made
or furnished; or
(e) CROSS-DEFAULT. (i) Borrower or any of its Subsidiaries
shall fail to make any payment when due on account of any Indebtedness
of such Person (other than the Obligations) and such failure shall
continue beyond any period of grace provided with respect thereto, if
the amount of such Indebtedness exceeds $1,000,000 or the effect of
such failure is to cause, or permit the holder or holders thereof to
cause, Indebtedness of Borrower and its Subsidiaries (other than the
Obligations) in an aggregate amount exceeding $1,000,000 to become due;
(ii) Borrower or any of its Subsidiaries shall otherwise fail to
observe or perform any agreement, term or condition contained in any
agreement or instrument relating to any Indebtedness of such Person
(other than the Obligations), or any other event shall occur or
condition shall exist, if the effect of such failure, event or
condition is to cause, or permit the holder or holders thereof to
cause, (A) Indebtedness of Borrower and its Subsidiaries (other than
the Obligations) in an
aggregate amount exceeding $1,000,000 to become due (and/or to be
secured by cash collateral) or (B) Indebtedness constituting
Obligations to become due (and/or to be secured by cash collateral); or
(f) INSOLVENCY, VOLUNTARY PROCEEDINGS. Borrower or any of its
Subsidiaries shall (i) apply for or consent to the appointment of a
receiver, trustee, liquidator or custodian of itself or of all or a
substantial part of its property, (ii) be unable, or admit in writing
its inability, to pay its debts generally as they mature, (iii) make a
general assignment for the benefit of its or any of its creditors, (iv)
be dissolved or liquidated in full or in part, (v) become insolvent (as
such term may be defined or interpreted under any applicable statute),
(vi) commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or hereafter
in effect or consent to any such relief or to the appointment of or
taking possession of its property by any official in an involuntary
case or other proceeding commenced against it, or (vi) take any action
for the purpose of effecting any of the foregoing; or
(g) INVOLUNTARY PROCEEDINGS. Proceedings for the appointment
of a receiver, trustee, liquidator or custodian of Borrower or any of
its Subsidiaries or of all or a substantial part of the property
thereof, or an involuntary case or other proceedings seeking
liquidation, reorganization or other relief with respect to Borrower or
any of its Subsidiaries or the debts thereof under any bankruptcy,
insolvency or other similar law now or hereafter in effect shall be
commenced and an order for relief entered or such proceeding shall not
be dismissed or discharged within sixty (60) days of commencement; or
(h) JUDGMENTS. (i) One or more judgments, orders, decrees or
arbitration awards requiring Borrower and/or its Subsidiaries to pay an
aggregate amount of $1,000,000 or more (exclusive of amounts covered by
insurance issued by an insurer not an Affiliate of Borrower and
otherwise satisfying the requirements set forth in SUBPARAGRAPH
5.01(d)) shall be rendered against Borrower and/or any of its
Subsidiaries in connection with any single or related series of
transactions, incidents or circumstances and the same shall not be
vacated or stayed for a period of ten (10) consecutive days; (ii) any
judgment, writ, assessment, warrant of attachment, tax lien or
execution or similar process shall be issued or levied against a
substantial part of the property of Borrower or any of its Subsidiaries
and the same shall not be released, stayed, vacated or otherwise
dismissed within ten (10) days after issue or levy; or (iii) any other
judgments, orders, decrees, arbitration awards, writs, assessments,
warrants of attachment, tax liens or executions or similar processes
which, alone or in the aggregate, are reasonably likely to have a
Material Adverse Effect are rendered, issued or levied; or
(i) CREDIT DOCUMENTS. Any Credit Document or any material term
thereof shall cease to be, or be asserted by Borrower or any of its
Subsidiaries not to be, a legal, valid and binding obligation of
Borrower or any of its Subsidiaries enforceable in accordance with its
terms; or
(j) ERISA. Any Reportable Event which constitutes grounds for
the termination of any Employee Benefit Plan by the PBGC or for the
appointment of a trustee by the PBGC to administer any Employee Benefit
Plan shall occur, or any Employee Benefit Plan shall be terminated
within the meaning of Title IV of ERISA or a trustee shall be appointed
by the PBGC to administer any Employee Benefit Plan; or
(k) CHANGE OF CONTROL. Any Change of Control shall occur; or
(l) MATERIAL ADVERSE EFFECT. Any event(s) or condition(s)
which is(are) reasonably likely to have a Material Adverse Effect shall
occur or exist.
6.2. REMEDIES. At any time after the occurrence and during the
continuance of any Event of Default (other than an Event of Default referred
to in SUBPARAGRAPH 6.01(f) or 6.01(g)), Agent may, with the consent of the
Required Lenders, or shall, upon instructions from the Required Lenders, by
written notice to Borrower, (a) terminate the Commitments and the obligations
of the Lenders to make Loans and/or (b) declare all outstanding Obligations
payable by Borrower to be immediately due and payable without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived, anything contained herein or in the Amended and Restated
Notes to the contrary notwithstanding. Upon the occurrence or existence of
any Event of Default described in SUBPARAGRAPH 6.01(f) or 6.01(g),
immediately and without notice, (1) the Commitments and the obligations of
the Lenders to make Loans shall automatically terminate and (2) all
outstanding Obligations payable by Borrower hereunder shall automatically
become immediately due and payable, without presentment, demand, protest or
any other notice of any kind, all of which are hereby expressly waived,
anything contained herein or in the Amended and Restated Notes to the
contrary notwithstanding. In addition to the foregoing remedies, upon the
occurrence or existence of any Event of Default, Agent may exercise any other
right, power or remedy available to it under any of the Credit Documents or
otherwise by law, either by suit in equity or by action at law, or both.
SECTION VII. THE AGENT AND RELATIONS AMONG LENDERS.
7.1. APPOINTMENT, POWERS AND IMMUNITIES. Each Lender hereby appoints
and authorizes Agent to act as its agent hereunder and under the other Credit
Documents with such powers as are expressly delegated to Agent by the terms
of this Agreement and the other Credit Documents, together with such other
powers as are reasonably incidental thereto. Agent shall not have any duties
or responsibilities except those expressly set forth in this Agreement or in
any other Credit Document, be a trustee for any Lender or have any fiduciary
duty to any Lender. Notwithstanding anything to the contrary contained herein
Agent shall not be required to take any action which is contrary to this
Agreement or any other Credit Document or any applicable Governmental Rule.
Neither Agent nor any Lender shall be responsible to any other Lender for any
recitals, statements, representations or warranties made by Borrower or any
of its Subsidiaries contained in this Agreement or in any other Credit
Document, for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Credit Document or for any
failure by Borrower or any of its Subsidiaries to perform their respective
obligations hereunder or thereunder. Agent may employ agents and
attorneys-in-fact
and shall not be responsible to any Lender for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care.
Neither Agent nor any of its directors, officers, employees, agents or
advisors shall be responsible to any Lender for any action taken or omitted
to be taken by it or them hereunder or under any other Credit Document or in
connection herewith or therewith, except for its or their own gross
negligence or willful misconduct. Except as otherwise provided under this
Agreement, Agent shall take such action with respect to the Credit Documents
as shall be directed by the Required Lenders.
7.2. RELIANCE BY AGENT. Agent shall be entitled to rely upon any
certificate, notice or other document (including any cable, telegram,
facsimile or telex) believed by it in good faith to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or
Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by Agent with reasonable care. As to
any other matters not expressly provided for by this Agreement, Agent shall
not be required to take any action or exercise any discretion, but shall be
required to act or to refrain from acting upon instructions of the Required
Lenders and shall in all cases be fully protected by the Lenders in acting,
or in refraining from acting, hereunder or under any other Credit Document in
accordance with the instructions of the Required Lenders, and such
instructions of the Required Lenders and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders.
7.3. DEFAULTS. Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default unless Agent has
received a written notice from a Lender or Borrower, referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "Notice of Default". If Agent receives such a notice of the
occurrence of a Default or Event of Default, Agent shall give prompt notice
thereof to the Lenders. Agent shall take such action with respect to such
Default or Event of Default as shall be reasonably directed by the Required
Lenders; PROVIDED, HOWEVER, that until Agent shall have received such
directions, 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.
7.4. INDEMNIFICATION. Without limiting the Obligations of Borrower
hereunder, each Lender agrees to indemnify Agent, ratably in accordance with
their Proportionate Shares, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may at any time be
imposed on, incurred by or asserted against Agent in any way relating to or
arising out of this Agreement or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or the
enforcement of any of the terms hereof or thereof; PROVIDED, HOWEVER, that no
Lender shall be liable for any of the foregoing to the extent they arise from
Agent's gross negligence or willful misconduct. Agent shall be fully
justified in refusing to take or in continuing to take any action hereunder
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 or continuing to take any such action. The obligations of
each Lender under this PARAGRAPH 7.04 shall survive the payment and
performance of the Obligations, the termination of this Agreement and any
Lender ceasing to be a party to this Agreement (with respect to events
which occurred prior to the time such Lender ceased to be a Lender hereunder).
7.5. NON-RELIANCE. Each Lender represents that it has, independently
and without reliance on Agent, or any other Lender, and based on such
documents and information as it has deemed appropriate, made its own
appraisal of the business, prospects, management, financial condition and
affairs of Borrower and the Subsidiaries and its own decision to enter into
this Agreement and agrees that it will, independently and without reliance
upon 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 appraisals
and decisions in taking or not taking action under this Agreement. Neither
Agent nor any of its affiliates nor any of their respective directors,
officers, employees, agents or advisors shall (a) be required to keep any
Lender informed as to the performance or observance by Borrower or any of its
Subsidiaries of the obligations under this Agreement or any other document
referred to or provided for herein or to make inquiry of, or to inspect the
properties or books of Borrower or any of its Subsidiaries; (b) have any duty
or responsibility to provide any Lender with any credit or other information
concerning Borrower or any of its Subsidiaries which may come into the
possession of Agent, except for notices, reports and other documents and
information expressly required to be furnished to the Lenders by Agent
hereunder; or (c) be responsible to any Lender for (i) any recital,
statement, representation or warranty made by Borrower or any officer,
employee or agent of Borrower in this Agreement or in any of the other Credit
Documents, (ii) the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any Credit Document, or
(iii) any failure by Borrower to perform its obligations under this Agreement
or any other Credit Document.
7.6. RESIGNATION OR REMOVAL OF AGENT. Agent may resign at any time
by giving thirty (30) days prior written notice thereof to Borrower and the
Lenders, and Agent may be removed at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Agent, which Agent, if not a
Lender, shall be reasonably acceptable to Borrower; PROVIDED, HOWEVER, that
Borrower shall have no right to approve a successor Agent if a Default or an
Event of Default has occurred and is continuing. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from the duties and obligations thereafter arising hereunder.
After any retiring Agent's resignation or removal hereunder as Agent, the
provisions of this SECTION VII 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.
7.7. AUTHORIZATION. Agent is hereby authorized by the Lenders to
execute, deliver and perform, each of the Credit Documents to which Agent is
or is intended to be a party and each Lender agrees to be bound by all of the
agreements of Agent contained in the Credit Documents.
7.8. AGENT IN ITS INDIVIDUAL CAPACITY. Agent and its affiliates may
make loans to, accept deposits from and generally engage in any kind of
banking or other business with Borrower and its Subsidiaries and affiliates
as though Agent were not Agent hereunder. With respect to Loans, if any, made
by Agent in its capacity as a Lender, Agent in its capacity as a Lender shall
have the same rights and powers under this Agreement and the other Credit
Documents as any other
Lender and may exercise the same as though it were not Agent, and the terms
"Lender" or "Lenders" shall include Agent in its capacity as a Lender.
SECTION VIII. MISCELLANEOUS.
8.1. NOTICES. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Borrower, any Lender or Agent under this Agreement or the other Credit
Documents shall be in writing and faxed, mailed or delivered, if to Borrower
or Agent, at its respective facsimile number or address set forth below or,
if to any Lender, at the address or facsimile number specified beneath the
heading "Address for Notices" under the name of such Lender in SCHEDULE I (or
to such other facsimile number or address for any party as indicated in any
notice given by that party to the other parties). All such notices and
communications shall be effective (a) when sent by Federal Express or other
overnight service of recognized standing, on the Business Day following the
deposit with such service; (b) when mailed, first class postage prepaid and
addressed as aforesaid through the United States Postal Service, upon
receipt; (c) when delivered by hand, upon delivery; and (d) when faxed, upon
confirmation of receipt; PROVIDED, HOWEVER, that any notice delivered to
Agent under SECTION II shall not be effective until received by Agent.
Agent: ABN AMRO Bank N.V.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax No: (000) 000-0000
with a copy to:
ABN AMRO Bank N.V.
1325 Avenue of the Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax No: (000) 000-0000
And
ABN AMRO Bank N.V.
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx
Credit Administration
Telephone: (000) 000-0000
Fax No.: (000) 000-0000
Borrower: ADAC Laboratories
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Fax No: (000) 000-0000
Each Notice of Borrowing, Notice of Conversion and Notice of Interest Period
Selection shall be given by Borrower to Agent's office located at the address
referred to above during Agent's normal business hours; PROVIDED, HOWEVER,
that any such notice received by Agent after 10:30 a.m. on any Business Day
shall be deemed received by Agent on the next Business Day. In any case where
this Agreement authorizes notices, requests, demands or other communications
by Borrower to Agent or any Lender to be made by telephone or facsimile,
Agent or any Lender may conclusively presume that anyone purporting to be a
person designated in any incumbency certificate or other similar document
received by Agent or a Lender is such a person.
8.2. EXPENSES. Borrower shall pay on demand, whether or not any Loan
is made hereunder, (a) all reasonable fees and expenses, including reasonable
attorneys' fees and expenses, incurred by Agent in connection with the
preparation, negotiation, execution and delivery of, and the exercise of its
duties under, this Agreement and the other Credit Documents, and the
preparation, negotiation, execution and delivery of amendments and waivers
hereunder and thereunder and (b) all reasonable fees and expenses, including
reasonable attorneys' fees and expenses, incurred by Agent and the Lenders in
the enforcement or attempted enforcement of any of the Obligations or in
preserving any of Agent's or the Lenders' rights and remedies (including,
without limitation, all such fees and expenses incurred in connection with
any "workout" or restructuring affecting the Credit Documents or the
Obligations or any bankruptcy or similar proceeding involving Borrower or any
of its Subsidiaries). As used herein, the term "reasonable attorneys' fees
and expenses" shall include, without limitation, allocable costs and expenses
of Agent's and Lenders' in-house legal counsel and staff. The obligations of
Borrower under this PARAGRAPH 8.02 shall survive the payment and performance
of the Obligations and the termination of this Agreement.
8.3. INDEMNIFICATION. To the fullest extent permitted by law,
Borrower agrees to protect, indemnify, defend and hold harmless Agent, the
Lenders and their Affiliates and their respective directors, officers,
employees, agents and advisors ("INDEMNITEES") from and against any and all
liabilities, losses, damages or expenses of any kind or nature and from any
suits, claims or demands (including in respect of or for reasonable
attorney's fees and other expenses) arising on account of or in connection
with any matter or thing or action or failure to act by Indemnitees, or any
of them, arising out of or relating to the Credit Documents or any
transaction contemplated thereby, including without limitation any use by
Borrower of any proceeds of the Loans, except to the extent such liability
arises from the willful misconduct or gross negligence of such Indemnitee.
Upon receiving knowledge of any suit, claim or demand asserted by a third
party that Agent or any Lender believes is covered by this indemnity, Agent
or such Lender shall give Borrower notice of the matter and an opportunity to
defend it, at Borrower's sole cost and expense, with legal counsel
satisfactory to Agent or such Lender, as the case may be. Agent or
such Lender may also require Borrower to defend the matter. Any failure or
delay of Agent or any Lender to notify Borrower of any such suit, claim or
demand shall not relieve Borrower of its obligations under this PARAGRAPH
8.03 but shall reduce such obligations to the extent of any increase in those
obligations caused solely by any such failure or delay which is unreasonable.
The obligations of Borrower under this PARAGRAPH 8.03 shall survive the
payment and performance of the Obligations and the termination of this
Agreement.
8.4. WAIVERS; AMENDMENTS. Any term, covenant, agreement or condition
of this Agreement or any other Credit Document may be amended or waived, and
any consent under this Agreement or any other Credit Document may be given,
if such amendment, waiver or consent is in writing and is signed by Borrower
and the Required Lenders (or Agent on behalf of the Required Lenders with the
written approval of the Required Lenders); PROVIDED, HOWEVER that:
(a) Any amendment, waiver or consent which would (i) increase
the Total Commitment, (ii) extend the Maturity Date, (iii) reduce the
principal of or interest on any Loan or any fees or other amounts
payable for the account of the Lenders hereunder, (iv) extend any
scheduled principal, interest or fee payment date, (v) amend this
PARAGRAPH 8.04, (vi) releases the Amended and Restated Guaranty, or
(vii) amends the definition of Required Lenders, must be in writing and
signed or approved in writing by all Lenders;
(b) Any amendment, waiver or consent which increases or
decreases the Proportionate Share of any Lender must be in writing and
signed by such Lender; and
(c) Any amendment, waiver or consent which affects the rights
or obligations of Agent must be in writing and signed by Agent.
No failure or delay by Agent or any Lender in exercising any right under this
Agreement or any other Credit Document shall operate as a waiver thereof or
of any other right hereunder or thereunder nor shall any single or partial
exercise of any such right preclude any other further exercise thereof or of
any other right hereunder or thereunder. Unless otherwise specified in such
waiver or consent, a waiver or consent given hereunder shall be effective
only in the specific instance and for the specific purpose for which given.
8.5. SUCCESSORS AND ASSIGNS.
(a) BINDING EFFECT. This Agreement and the other Credit
Documents shall be binding upon and inure to the benefit of Borrower,
the Lenders, Agent, all future holders of the Amended and Restated
Notes and their respective successors and permitted assigns, except
that Borrower may not assign or transfer any of its rights or
obligations under any Credit Document without the prior written consent
of Agent and each Lender. All references in this Agreement to any
Person shall be deemed to include all successors and assigns of such
Person.
(b) PARTICIPATIONS. Any Lender may at any time sell to one or
more banks or other financial institutions ("PARTICIPANTS")
participating interests in any Loan owing to such
Lender, any Amended and Restated Note held by such Lender, any
Commitment of such Lender or any other interest of such Lender
under this Agreement and the other Credit Documents. In the event of
any such sale by a Lender of participating interests, such Lender's
obligations under this Agreement shall remain unchanged, such Lender
shall remain solely responsible for the performance thereof, such
Lender shall remain the holder of its Amended and Restated Notes for
all purposes under this Agreement and Borrower and Agent shall
continue to deal solely and directly with such Lender in connection
with such Lender's rights and obligations under this Agreement. Any
agreement pursuant to which any such sale is effected may require
the selling Lender to obtain the consent of the Participant in order
for such Lender to agree in writing to any amendment, waiver or
consent of a type specified in CLAUSE (i), (ii), (iii) OR (iv)
OF SUBPARAGRAPH 8.04(a) but may not otherwise require the selling
Lender to obtain the consent of such Participant to any other
amendment, waiver or consent hereunder. Borrower also agrees that any
Lender which has transferred any participating interest in its
Commitment or Loans shall, notwithstanding any such transfer, be
entitled to the full benefits accorded such Lender under PARAGRAPH
2.09, Paragraph 2.10, and PARAGRAPH 2.11, as if such Lender had not
made such transfer.
(c) ASSIGNMENTS. Any Lender may, at any time, sell and assign
to any Lender or any Eligible Assignee (individually, an "ASSIGNEE
LENDER") all or a portion of its rights and obligations under this
Agreement and the other Credit Documents (such a sale and assignment to
be referred to herein as an "ASSIGNMENT") pursuant to an assignment
agreement in the form of EXHIBIT G (an "ASSIGNMENT AGREEMENT"),
executed by each Assignee Lender and such assignor Lender (an "ASSIGNOR
LENDER") and delivered to Agent for its acceptance and recording in the
Register; PROVIDED, HOWEVER, that:
(i) Without the written consent of Agent and, if no
Default or Event of Default has occurred and is continuing,
Borrower (which consent of Agent and Borrower shall not be
unreasonably withheld), no Lender may make any Assignment to
any Assignee Lender which is not, immediately prior to such
Assignment, a Lender hereunder or an Affiliate thereof; or
(ii) Without the written consent of Agent and, if no
Default or Event of Default has occurred and is continuing,
Borrower (which consent of Agent and Borrower shall not be
unreasonably withheld), no Lender may make any Assignment to
any Assignee Lender if, after giving effect to such
Assignment, the Commitment of such Lender or such Assignee
Lender would be less than Five Million Dollars ($5,000,000)
(except that a Lender may make an Assignment which reduces its
Commitment to zero without the written consent of Borrower and
Agent); or
(iii) Without the written consent of Agent and, if no
Default or Event of Default has occurred and is continuing,
Borrower (which consent of Agent and Borrower shall not be
unreasonably withheld), no Lender may make any Assignment
which does not assign and delegate an equal pro rata interest
in such
Lender's Loans, Commitment and all other rights, duties and
obligations of such Lender under this Agreement and the
other Credit Documents.
Upon such execution, delivery, acceptance and recording of each
Assignment Agreement, from and after the Assignment Effective Date
determined pursuant to such Assignment Agreement, (A) each Assignee
Lender thereunder shall be a Lender hereunder with a Proportionate
Share as set forth on ATTACHMENT 1 TO SUCH ASSIGNMENT AGREEMENT (under
the caption "Proportionate Share After Assignment") and shall have the
rights, duties and obligations of such a Lender under this Agreement
and the other Credit Documents, and (B) the Assignor Lender thereunder
shall be a Lender with a Proportionate Share as set forth on ATTACHMENT
1 TO SUCH ASSIGNMENT AGREEMENT (under the caption "Proportionate Share
After Assignment"), or, if the Proportionate Share of the Assignor
Lender has been reduced to 0%, the Assignor Lender shall cease to be a
Lender and to have any obligation to make any Loan; PROVIDED, HOWEVER,
that any such Assignor Lender which ceases to be a Lender shall
continue to be entitled to the benefits of any provision of this
Agreement which by its terms survives the termination of this
Agreement. Each Assignment Agreement shall be deemed to amend SCHEDULE
I to the extent, and only to the extent, necessary to reflect the
addition of each Assignee Lender, the deletion of each Assignor Lender
which reduces its Proportionate Share to 0% and the resulting
adjustment of Proportionate Shares arising from the purchase by each
Assignee Lender of all or a portion of the rights and obligations of an
Assignor Lender under this Agreement and the other Credit Documents. On
or prior to the Assignment Effective Date determined pursuant to each
Assignment Agreement, Borrower, at its own expense, shall execute and
deliver to Agent, in exchange for the surrendered Amended and Restated
Note of the Assignor Lender thereunder, a new Amended and Restated Note
to the order of each Assignee Lender thereunder (with each new Amended
and Restated Note to be in an amount equal to the Commitment assumed by
such Assignee Lender) and, if the Assignor Lender is continuing as a
Lender hereunder, a new Amended and Restated Note to the order of the
Assignor Lender (with the new Amended and Restated Note to be in an
amount equal to the Commitment retained by it). Each such new Amended
and Restated Note shall be dated the Closing Date and each shall
otherwise be in the form of the Amended and Restated Note replaced
thereby. The Amended and Restated Notes surrendered by the Assignor
Lender shall be returned by Agent to Borrower marked "replaced". Each
Assignee Lender which was not previously a Lender hereunder and which
is not incorporated under the laws of the United States of America or a
state thereof shall, within three (3) Business Days of becoming a
Lender, deliver to Borrower and Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224 (or successor
applicable form), as the case may be, certifying in each case that such
Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes.
(d) REGISTER. Agent shall maintain at its address referred to
in PARAGRAPH 8.01 a copy of each Assignment Agreement delivered to it
and a register (the "REGISTER") for the recordation of the names and
addresses of the Lenders and the Proportionate Shares of each Lender
from time to time. The entries in the Register shall be conclusive in
the absence of manifest error, and Borrower, Agent and the Lenders may
treat each Person whose name is recorded in the Register as the owner
of the Loans recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by Borrower or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(e) REGISTRATION. Upon its receipt of an Assignment Agreement
executed by an Assignor Lender and an Assignee Lender (and, to the
extent required by SUBPARAGRAPH 8.05(c), by Borrower and Agent)
together with payment to Agent by Assignor Lender of a registration and
processing fee of $4000, Agent shall (i) promptly accept such
Assignment Agreement and (ii) on the Effective Date determined pursuant
thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and
Borrower. Agent may, from time to time at its election, prepare and
deliver to the Lenders and Borrower a revised SCHEDULE I reflecting the
names, addresses and respective Proportionate Shares of all Lenders
then parties hereto.
(f) CONFIDENTIALITY. Agent and the Lenders may disclose the
Credit Documents and any financial or other information relating to
Borrower or any Subsidiary to each other or, with the consent of
Borrower, to any potential Participant or Assignee Lender.
8.6. SETOFF. In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, with the prior consent of
Agent but without prior notice to or consent of Borrower, any such notice and
consent being expressly waived by Borrower to the extent permitted by
applicable law, upon the occurrence and during the continuance of an Event of
Default, to set-off and apply against the Obligations any amount owing from
such Lender to Borrower. The aforesaid right of set-off may be exercised by
such Lender against Borrower or against any trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver or execution,
judgment or attachment creditor of Borrower or against anyone else claiming
through or against Borrower or such trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, receiver, or execution,
judgment or attachment creditor, notwithstanding the fact that such right of
set-off may not have been exercised by such Lender at any prior time. Each
Lender agrees promptly to notify Borrower after any such set-off and
application made by such Lender, PROVIDED that the failure to give such
notice shall not affect the validity of such set-off and application.
8.7. NO THIRD PARTY RIGHTS. Nothing expressed in or to be implied
from this Agreement is intended to give, or shall be construed to give, any
Person, other than the parties hereto and their permitted successors and
assigns hereunder, any benefit or legal or equitable right, remedy or claim
under or by virtue of this Agreement or under or by virtue of any provision
herein.
8.8. PARTIAL INVALIDITY. If at any time any provision of this
Agreement is or becomes illegal, invalid or unenforceable in any respect
under the law or any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Agreement nor the
legality, validity or enforceability of such provision under the law of any
other jurisdiction shall in any way be affected or impaired thereby.
8.9. JURY TRIAL. EACH OF BORROWER, THE LENDERS AND AGENT, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION,
PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENT.
8.10. COUNTERPARTS. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto
shall be deemed to constitute a complete, executed original for all purposes.
8.11. CONFIDENTIALITY. None of the Banks and Agent shall disclose to
any Person any information with respect to Borrower or any of its
Subsidiaries which is furnished pursuant to this Agreement or under the other
Credit Documents, except that any Bank or Agent may disclose any such
information (a) to its own directors, officers, employees, auditors, counsel
and other professional advisors and to its Affiliates if such Bank or Agent
or such Bank's or such Agent's holding or parent company in its sole
discretion determines that any such party should have access to such
information; (b) to another Bank or Agent; (c) if generally available to the
public through no fault of Agent or the Banks; (d) if required or appropriate
in any report, statement or testimony submitted to any Governmental Authority
having or claiming to have jurisdiction over such Bank or Agent; (e) if
required or appropriate in response to any summons or subpoena or in
connection with any litigation, to the extent permitted or deemed advisable
by counsel; (f) to comply with any Requirement of Law applicable to such Bank
or Agent; (g) to any Participant or Assignee Bank or any prospective
Participant or Assignee Bank, provided that such Participant or Assignee or
prospective Participant or Assignee agrees in writing to be bound by this
PARAGRAPH 8.11 prior to disclosure; or (h) otherwise with the prior consent
of Borrower; PROVIDED, HOWEVER, that any disclosure made in violation of this
Agreement shall not affect the obligations of Borrower and its Subsidiaries
under this Agreement and the other Credit Documents.
8.12. EFFECT; TERMINATION OF EXISTING CREDIT AGREEMENT. Borrower,
Agent and the Lenders agree that, on and after the Closing Date, (a) this
Agreement, the Amended and Restated Notes and the Amended and Restated
Guaranty shall amend, restate in their entirety and replace, without
novation, the Existing Credit Agreement, the promissory notes issued by
Borrower in connection with the Existing Credit Agreement (the "Existing
Notes") and the Guaranty dated as of July 31, 1996 issued by the Domestic
Subsidiaries in favor of Agent for the benefit of the Lenders in connection
with the Existing Credit Agreement (the "Existing Guaranty"), respectively,
(b) all obligations of the Lenders to make loans or otherwise extend credit
to Borrower under the Existing Credit Agreement shall be terminated and (c)
the Security Documents and all of the Liens granted to Agent and the Lenders
thereunder shall terminate; PROVIDED, HOWEVER, that such termination shall
not (i) operate as a waiver of any right, power or remedy of Agent or the
Lender hereunder or under the Amended and Restated Notes, the Amended and
Restated Guaranty or any related document, instrument or agreement or (ii)
extinguish or impair any obligations of Borrower under the Existing Credit
Agreement, the Existing Notes, the Existing Guaranty or any related document,
instrument or agreement except to the extent any such obligation is actually
satisfied by Borrower or is covered in this Agreement or the other Credit
Documents; PROVIDED, FURTHER, that all of the Loans
outstanding under the Existing Credit Agreement shall remain outstanding and
shall be deemed to have been made under this Agreement on a pro rata basis by
the Lenders hereunder in accordance with their respective Proportionate
Shares.
[The first signature page follows.]
IN WITNESS WHEREOF, Borrower, the Lenders and Agent have
caused this Agreement to be executed as of the day and year first above written.
BORROWER: ADAC LABORATORIES
By:
Name:
Title:
AGENT: ABN AMRO BANK N.V., AS AGENT
By:
Name:
Title:
By:
Name:
Title:
LENDERS: ABN AMRO BANK N.V., AS A LENDER
By:
Name:
Title:
By:
Name:
Title:
SANWA BANK CALIFORNIA, AS A LENDER
By:
Name:
Title:
BANQUE NATIONALE DE PARIS, AS A LENDER
By:
Name:
Title:
UNION BANK OF CALIFORNIA, N.A, AS A LENDER
By:
Name:
Title:
XXXXX FARGO BANK, N.A., AS A LENDER
By:
Name:
Title:
EXECUTION VERSION
AMENDED AND RESTATED CREDIT AGREEMENT
AMONG
ADAC LABORATORIES
AND
THE LENDERS NAMED HEREIN
AND
ABN AMRO BANK N.V.,
AS AGENT FOR THE LENDERS
MARCH 29, 1999
TABLE OF CONTENTS
(CONTINUED)
PAGE
PAGE
SECTION I. INTERPRETATION
1
1.01. Definitions
1
1.02. GAAP
17
1.03. Headings
17
1.04. Plural Terms
17
1.05. Time
17
1.06. Governing Law
17
1.07. Construction
17
1.08. Entire Agreement
17
1.09. Calculation of Interest and Fees
17
1.10. Other Interpretive Provisions
18
SECTION II. CREDIT FACILITY
18
2.01. Revolving Loan Facility
18
2.02. Commitment Reductions, Etc
22
2.03. Fees
22
2.04. Prepayments
23
2.05. Other Payment Terms
23
2.06. Notes and Interest Account
24
2.07. Loan Funding
25
2.08. Pro Rata Treatment
26
2.09. Change of Circumstances
27
2.10. Taxes on Payments
29
2.11. Funding Loss Indemnification
30
2.12. Guaranties
31
2.13. Replacement of Lenders
31
SECTION III. CONDITIONS PRECEDENT
32
3.01. Initial Conditions Precedent
32
3.02. Conditions Precedent to Each Credit Event
32
3.03. Covenant to Deliver
32
SECTION IV. REPRESENTATIONS AND WARRANTIES
33
4.01. Borrower's Representations and Warranties
33
4.02. Reaffirmation
37
SECTION V. COVENANTS
37
5.01. Affirmative Covenants
37
5.02. Negative Covenants
40
5.03. Financial Covenants
47
SECTION VI. DEFAULT
48
6.01. Events of Default
48
6.02. Remedies
50
SECTION VII. THE AGENT AND RELATIONS AMONG LENDERS
50
7.01. Appointment, Powers and Immunities
50
7.02. Reliance by Agent
51
7.03. Defaults
51
7.04. Indemnification
51
7.05. Non-Reliance
52
7.06. Resignation or Removal of Agent
52
7.07. Authorization
52
7.08. Agent in its Individual Capacity
52
SECTION VIII. MISCELLANEOUS
53
8.01. Notices
53
8.02. Expenses
54
8.03. Indemnification
54
8.04. Waivers; Amendments
55
8.05. Successors and Assigns
55
8.06. Setoff
58
8.07. No Third Party Rights
58
8.08. Partial Invalidity
58
8.09. Jury Trial
58
8.10. Counterparts
59
8.11. Confidentiality
59
8.12. Effect; Termination of Existing Credit Agreement
59
SCHEDULES
I Lenders
1.01 Pricing Grid
3.01 Initial Conditions Precedent
4.01(q) Subsidiaries
EXHIBITS
A Notice of Borrowing (2.01(b))
B Notice of Conversion (2.01(d))
C Notice of Interest Period Selection (2.01(e))
D Maturity Date Extension Request (2.01(h))
E Amended and Restated Note (2.06(a))
F Amended and Restated Guaranty (2.12(a))
G Assignment Agreement (8.05(c))
An extra section break has been inserted above this paragraph. Do not delete
this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
Contents/Authorities headers and footers to appear on any pages following the
Table of Contents/Authorities.
SCHEDULE I
LENDERS
Proportionate
Lender Share*
------ -------------
ABN AMRO BANK N.V. 33.33333333%
APPLICABLE LENDING OFFICE:
ABN AMRO Bank N.V.
San Francisco International Branch
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
ADDRESS FOR NOTICES:
CREDIT ADMINISTRATION:
ABN AMRO Bank N.V.
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx
Credit Administration
Telephone: (000) 000-0000
Fax No.: (000) 000-0000
With a copy to:
ABN AMRO Bank N.V.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx
Vice President
Telephone: (000) 000-0000
Fax No: (000) 000-0000
I-
NOTICES OF BORROWING, ETC.:
ABN AMRO Bank N.V.
Capital Markets Syndication Group
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax No: (000) 000-0000
WIRING INSTRUCTIONS:
ABN AMRO Bank N.V.
ABA #: 000000000
F/O ABN AMRO Bank N.V.
Chicago Branch CPU
Account #: 650-001-1789-41
Reference: Adac Laboratories
* To be expressed as a percentage rounded to the eighth digit to the
right of the decimal point.
I-
Proportionate
Lender Share*
------ -------------
SANWA BANK CALIFORNIA 24.00000000%
Applicable Lending Office:
San Xxxx CBC
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, XX 00000-0000
Address for notices:
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxxx X. Xxxxxxx
Telephone No: (000) 000-0000
Telecopier No: (000) 000-0000
Wiring Instructions:
Sanwa Bank California
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, XX 00000
ABA No. 000000000
Account No: 1129-92463
Reference: Commercial Loan No. 00-0000000-0
For Further Credit To: ADAC Laboratories
* To be expressed as a percentage rounded to the eighth digit to the
right of the decimal point.
I-
Proportionate
Lender Share*
------ -------------
BANQUE NATIONALE DE PARIS 14.66666666%
Applicable Lending Office:
Banque National de Paris,
San Xxxxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Address for Notice:
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Vice President
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Telex: RCA 278900 (Answerback: BNPs UR)
Wiring Instructions
Federal Reserve Bank of San Francisco
San Francisco, California
ABA Number: 000000000
Account Name: Banque Nationale de Paris, San Xxxxxxxxx Xxxxxx
Reference: ADAC Laboratories
* To be expressed as a percentage rounded to the eighth digit to the
right of the decimal point.
I-
Proportionate
Lender Share*
------ -------------
UNION BANK OF CALIFORNIA, N.A. 14.66666666%
Applicable Lending Office:
Union Bank of California, N.A.
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Address for Notice: CC: NOTIFICATION
Union Bank of California, N.A. Xxxxx Xxxxx
Northern California Commercial Banking Division 00 Xxxxxxx Xxxx.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx Xxxxx 000
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Attention: Xxx Xxxxx Tel.: 408/000-0000
Telephone: (000) 000-0000 Fax: 408/000-0000
Telecopier: (000) 000-0000
Wiring Instructions:
Union Bank of California, N.A.
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
ABA Number: 000-000-000
Account Number: 070-196431
Account Name: Wire Transfer Clearing
Attention: Commercial Loan Operations
Reference: ADAC Laboratories
(include any additional information needed to process transaction)
* To be expressed as a percentage rounded to the eighth digit to the
right of the decimal point.
I-
Proportionate
Lender Share*
------ -------------
XXXXX FARGO BANK, N.A. 13.33333333%
Applicable Lending Office:
Xxxxx Fargo Bank, N.A.
000 Xxxx Xxxxxx Xxxxx, Xxxxx Xxxxx
Xxx Xxxx, XX 00000
Address for Notice:
Xxxxx Fargo Bank, N.A.
Commercial Bank Loan Center
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Wiring Instructions:
Xxxxx Fargo Bank, N.A.
San Francisco, CA
ABA Number: 000-000-000
BNF: Member SYN/AC-2712-507201
Reference: ADAC LABORATORIES
* To be expressed as a percentage rounded to the eighth digit to the
right of the decimal point.
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SCHEDULE 1.01(a)
PRICING GRID
APPLICABLE MARGINS
DEBT/ QUARTER BASE LIBOR COMMITMENT
EBITDA LEVEL(2)/ RATE LOANS FEE
RATIO(1)/ ----- LOANS ----- PERCENTAGE
----- ----- ----------
< 0.60 1 0% 0.750% 0.250%
-
> 0.60 2 0% 0.875% 0.250%
< 0.90
-
> 0.90, 3 0% 1.000% 0.275%
< 1.20
-
> 1.20, 4 0% 1.125% 0.325%
< 1.40
-
> 1.40, 5 0% 1.250% 0.375%
< 1.60
-
> 1.60, 6 0% 1.375% 0.425%
< 2.00
-
> 2.00 7 0% 1.500% 0.475%
--------------------
(1)/ For a consecutive four-quarter period.
(2)/ For the second quarter after the last quarter in the consecutive
four-quarter period.
EXPLANATION
1. The Applicable Margin for each Loan and the Commitment Fee Percentage
will be set for each quarter and will vary depending upon whether such
quarter is a Level 1 Quarter, a Xxxxx 0 Xxxxxxx, x Xxxxx 0 Xxxxxxx, a
Xxxxx 0 Xxxxxxx, x Xxxxx 0 Xxxxxxx, a Xxxxx 0
X-
Xxxxxxx xx x Xxxxx 0 Xxxxxxx.
0. The Closing Date through the quarter ending on or about June 30, 1999
will be a Level 2 Quarter.
3. Each quarter thereafter will be a Level 1 Quarter, a Xxxxx 0 Xxxxxxx, x
Xxxxx 0 Xxxxxxx, x Xxxxx 0 Quarter, a Xxxxx 0 Xxxxxxx, x Xxxxx 0
Xxxxxxx or a Xxxxx 0 Xxxxxxx xxxxxxxxx xxxx Xxxxxxxx'x Xxxx/XXXXXX
Ratio for the consecutive four-quarter period which ended with the
second quarter prior to such quarter.
4. Examples:
(a) For the consecutive four-quarter period ending on or about
March 31, 1999, Borrower's Debt/EBITDA Ratio was 1.30. The
quarter ending on or about September 30, 1999 will be a Xxxxx
0 Xxxxxxx.
(x) For the consecutive four-quarter period ending on or about
June 30, 1999, Borrower's Debt/EBITDA Ratio was 1.10. The
quarter ending on or about December 31, 1999 will be a Xxxxx 0
Quarter.
1.01(a)
SCHEDULE 3.01
INITIAL CONDITIONS PRECEDENT
A. PRINCIPAL CREDIT DOCUMENTS.
(1) The Amended and Restated Credit Agreement, duly executed by
Borrower, each Lender and each Agent; and
(2) An Amended and Restated Note payable to each Lender, each duly
executed by Borrower; and
(3) The Amended and Restated Guaranty, duly executed by each Domestic
Subsidiary of Borrower.
B. BORROWER CORPORATE DOCUMENTS.
(1) The Certificate or Articles of Incorporation of Borrower, certified
as of a recent date prior to the Closing Date by the Secretary of State (or
comparable official) of its jurisdiction of incorporation;
(2) A Certificate of Good Standing (or comparable certificate) for
Borrower, certified as of a recent date prior to the Closing Date by the
Secretary of State (or comparable official) of its jurisdiction of
incorporation;
(3) A certificate of the Secretary or an Assistant Secretary of
Borrower, dated the Closing Date, certifying (a) that attached thereto is a true
and correct copy of the Bylaws of Borrower as in effect on the Closing Date; (b)
that attached thereto are true and correct copies of resolutions duly adopted by
the Board of Directors of Borrower and continuing in effect, which authorize the
execution, delivery and performance by Borrower of this Agreement and the other
Credit Documents executed or to be executed by Borrower and the consummation of
the transactions contemplated hereby and thereby; and (c) that there are no
proceedings for the dissolution or liquidation of Borrower;
(4) A certificate of the Secretary or an Assistant Secretary of
Borrower, dated the Closing Date, certifying the incumbency, signatures and
authority of the officers of Borrower authorized to execute, deliver and perform
this Agreement, the other Credit Documents and all other documents, instruments
or agreements related thereto executed or to be executed by Borrower; and
(5) Certificates of Good Standing (or comparable certificates) for
Borrower, certified as of a recent date prior to the Closing Date by the
Secretaries of State (or comparable official) of each state in which Borrower is
qualified to do business.
C. SUBSIDIARY CORPORATE DOCUMENTS.
(1) The Certificate of Incorporation (or comparable certificate) of
each Domestic
I-
Subsidiary of Borrower, certified as of a recent date prior to the Closing Date
by the Secretary of State (or comparable public official) of its state of
incorporation;
(2) A Certificate of Good Standing (or comparable certificate) for each
Domestic Subsidiary of Borrower, certified as of a recent date prior to the
Closing Date by the Secretary of State (or comparable public official) of its
state of incorporation;
(3) A certificate of the Secretary or an Assistant Secretary of each
Domestic Subsidiary of Borrower, dated the Closing Date, certifying (a) that
attached thereto is a true and correct copy of the Bylaws of such Subsidiary as
in effect on the Closing Date; (b) that attached thereto are true and correct
copies of resolutions duly adopted by the Board of Directors of such Subsidiary
and continuing in effect, which authorize the execution, delivery and
performance by such Subsidiary of the Credit Documents executed or to be
executed by such Subsidiary and the consummation of the transactions
contemplated hereby and thereby; and (c) that there are no proceedings for the
dissolution or liquidation of such Subsidiary; and
(4) A certificate of the Secretary or an Assistant Secretary of each
Domestic Subsidiary of Borrower, dated the Closing Date, certifying the
incumbency, signatures and authority of the officers of such Subsidiary
authorized to execute, deliver and perform the Credit Documents and all other
documents, instruments or agreements related thereto executed or to be executed
by such Subsidiary.
D. FINANCIAL STATEMENTS, FINANCIAL CONDITION, ETC.
(1) A copy of the unaudited Financial Statements of Borrower and its
Subsidiaries for the fiscal quarter ended December 31, 1998 and for the fiscal
year to such date (prepared on a consolidated and consolidating basis),
certified by the Chief Financial Officer or Vice President-Finance of Borrower
to present fairly the financial condition, results of operations and other
information reflected therein and to have been prepared in accordance with GAAP
(subject to normal year-end audit adjustments);
(2) A copy of the audited consolidated Financial Statements of Borrower
for the fiscal year ended September 27, 1998, prepared by Coopers & Xxxxxxx and
a copy of the unqualified opinion delivered by such accountants in connection
with such Financial Statements;
(3) A copy of the 10-Q report filed by Borrower with the Securities and
Exchange Commission for the quarter ended December 31, 1998;
(4) A copy of the 10-K report filed by Borrower with the Securities and
Exchange Commission for the fiscal year ended September 27, 1998;
(5) The consolidated plan and forecast of Borrower and its Subsidiaries
for the fiscal year ending in 1999, including quarterly cash flow projections
through the fiscal year ending in 1999 and annual cash flow projections through
the fiscal years ending 2000 and 2001; and
(6) Such other financial, business and other information regarding
Borrower, or any
3.01-
of its Subsidiaries as Agent or any Lender may reasonably request, including
information as to possible contingent liabilities, tax matters, environmental
matters and obligations for employee benefits and compensation.
E. OPINION.
A favorable written opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx,
counsel for Borrower and its Subsidiaries, dated the Closing Date and addressed
to Agent for the benefit of Agent and the Lenders, covering such legal matters
as Agent may reasonably request and otherwise in form and substance satisfactory
to Agent.
G. OTHER ITEMS.
(1) A duly completed and timely delivered Notice of Borrowing;
(2) Certificates of insurance evidencing the insurance Borrower is
required to maintain pursuant to SUBPARAGRAPH 5.01(d);
(3) An organization chart for Borrower and its Subsidiaries, setting
forth the relationship among such Persons, certified by the Chief Financial
Officer or Vice President-Finance of Borrower;
(4) A certificate of the Chief Financial Officer or Vice
President-Finance of Borrower, addressed to Agent and dated the Closing Date,
certifying that:
(a) The representations and warranties set forth in PARAGRAPH 4.01 and
in the other Credit Documents are true and correct in all material respects as
of such date (except for such representations and warranties made as of a
specified date, which shall be true as of such date);
(b) No Event of Default or Default has occurred and is continuing
as of such date;
(c) All of the Credit Documents are in full force and effect;
(5) All fees and expenses payable to Agent and the Lenders on or prior
to the Closing Date (including all fees payable to Agent pursuant to the Agent's
Fee Letter);
(6) All fees and expenses of Agent's counsels through the Closing Date;
and
3.01-
(7) Such other evidence as Agent or any Lender may reasonably request
to establish the accuracy and completeness of the representations and warranties
and the compliance with the terms and conditions contained in this Agreement and
the other Credit Documents.
3.01-
SCHEDULE 4.01(q)
SUBSIDIARIES
1. SHARES OWNED DIRECTLY BY BORROWER:
Subsidiary Jurisdiction Shares Owned
---------- ------------ by Borrower2/
-------------
ADAC Research &
Manufacturing, Inc. California 100%
Community Health Delaware 100%
Computing Corp.
ADAC Medical Delaware 100%
Technologies, Inc.
(formerly known
as X.X. Technical
Services, Inc.)
ADAC Laboratories California 100%
Pacific, Inc.
ADAC Healthcare Delaware 100%
Partners, Inc.
100%
ADAC Laboratories Canada 100%
Canada Ltd.
ADAC Laboratories Netherlands 100%
Europe, BV.
ADAC Foreign
Sales Corporation Virgin Islands 100%
ADAC do Brasil Brazil 100%
--------------------
1/ All shares common unless otherwise indicated.
2/ An immaterial number of directors' qualifying shares or the
equivalent may be outstanding for some Foreign Subsidiaries.
I-
2. SHARES OWNED DIRECTLY BY COMMUNITY HEALTH COMPUTING
CORP. ("CHCC"):
Subsidiary Jurisdiction Shares Owned
---------- ------------ by CHCC
------------
ADAC Healthcare Texas 100%
Information
Systems, Inc.
3. SHARES OWNED DIRECTLY BY ADAC HEALTHCARE PARTNERS, INC.
("ADAC HCPI"):
Subsidiary Jurisdiction Shares Owned
---------- ------------ by ADAC HCPI
------------
ADAC Radiology Delaware 100%
Services, Inc.
100%
--------------------
1/ All shares common unless otherwise indicated.
4. SHARES OWNED DIRECTLY BY ADAC LABORATORIES EUROPE B.V.
("ADAC BV"):
Shares Owned
Subsidiary Jurisdiction By ADAC BV2/
---------- ------------ ------------
ADAC Laboratories, SARL France 100%
ADAC Laboratories, SRL Italy 100%
ADAC Laboratories, Ltd. UK 100%
ADAC Laboratories, A/S Denmark 100%
ADAC Laboratories, GmbH Germany 100%
--------------------
2/ An immaterial number of directors' qualifying shares or the
equivalent may be outstanding for some Foreign Subsidiaries.
EXHIBIT A
NOTICE OF BORROWING
[Date]
ABN AMRO Bank N.V.
as Agent
Capital Markets Syndication Group
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
1. Reference is made to that certain Amended and Restated Credit
Agreement, dated as of March 29, 1999 (the "CREDIT AGREEMENT"), among ADAC
Laboratories ("BORROWER"), the financial institutions listed in SCHEDULE I to
the Credit Agreement (the "LENDERS") and ABN AMRO Bank N.V., as agent for the
Lenders (in such capacity, "AGENT"). Unless otherwise indicated, all terms
defined in the Credit Agreement have the same respective meanings when used
herein.
2. Pursuant to SUBPARAGRAPH 2.01(b) of the Credit Agreement,
Borrower hereby irrevocably requests a Borrowing upon the following terms:
(a) The principal amount of the requested Borrowing is to
be $____________;
(b) The requested Borrowing is to consist of ["Base Rate"
or "LIBOR"] Loans;
(c) If the requested Borrowing is to consist of LIBOR
Loans, the initial Interest Period for such Loans
will be ______________ months; and
(d) The date of the requested Borrowing is to be
_______________, ______.
3. Borrower hereby certifies to Agent and the Lenders that, on the
date of this Notice of Borrowing and after giving effect to the requested
Borrowing:
(a) The representations and warranties of Borrower set forth in
PARAGRAPH 4.01 of the Credit Agreement and in the other Credit Documents are
true and correct in all material respects as if made on such date (except for
representations and warranties expressly made as of a specified date, which
shall be true as of such date);
(b) No Default or Event of Default has occurred and is
continuing; and
(c) All of the Credit Documents are in full force and effect.
4. Please disburse the proceeds of the requested
Borrowing to
I-
------------------------------------------------------------------------
------------------------------------------------------------------------
IN WITNESS WHEREOF, Borrower has executed this Notice of
Borrowing on the date set forth above.
ADAC LABORATORIES
By:
Name:
Title:
EXHIBIT B
NOTICE OF CONVERSION
[Date]
ABN AMRO Bank N.V.
as Agent
Capital Markets Syndication Group
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
1. Reference is made to that certain Amended and Restated
Credit Agreement, dated as of March 29, 1999 (the "CREDIT AGREEMENT"),
among ADAC Laboratories ("BORROWER"), the financial institutions listed
in SCHEDULE I to the Credit Agreement (the "LENDERS") and ABN AMRO Bank
N.V., as agent for the Lenders (in such capacity, "AGENT"). Unless
otherwise indicated, all terms defined in the Credit Agreement have the
same respective meanings when used herein.
2. Pursuant to SUBPARAGRAPH 2.01(d) of the Credit Agreement,
Borrower hereby irrevocably requests to convert a Borrowing as follows:
(a) The Borrowing to be converted consists of ["Base Rate" or
"LIBOR"] Loans in the aggregate principal amount of $__________ which
were initially advanced to Borrower on __________, ____;
(b) The Loans in the Borrowing are to be converted into ["Base
Rate" or "LIBOR"] Loans;
(c) If such Loans are to be converted into LIBOR Loans, the
initial Interest Period for such Loans commencing upon conversion will
be __________ months; and
(d) The date of the requested conversion is to be __________,
____.
3. Borrower hereby certifies to Agent and the Lenders that,
on the date of this Notice of Conversion, and after giving effect to
the requested conversion:
(a) The representations and warranties of Borrower set forth
in PARAGRAPH 4.01 of the Credit Agreement and in the other Credit
Documents are true and correct in all material respects as if made on
such date (except for representations and warranties expressly made as
of a specified date, which shall be true as of such date);
(b) No Default or Event of Default has occurred and is
continuing; and
(c) All of the Credit Documents are in full force and effect.
I-
IN WITNESS WHEREOF, Borrower has executed this Notice of
Conversion on the date set forth above.
ADAC LABORATORIES
By:
Name:
Title:
B-
EXHIBIT C
NOTICE OF INTEREST PERIOD SELECTION
[Date]
ABN AMRO Bank N.V.
as Agent
Capital Markets Syndication Group
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
1. Reference is made to that certain Amended and Restated
Credit Agreement, dated as of March 29, 1999 (the "CREDIT AGREEMENT"),
among ADAC Laboratories ("BORROWER"), the financial institutions listed
in SCHEDULE I to the Credit Agreement (the "LENDERS") and ABN AMRO Bank
N.V., as agent for the Lenders (in such capacity, "AGENT"). Unless
otherwise indicated, all terms defined in the Credit Agreement have the
same respective meanings when used herein.
2. Pursuant to SUBPARAGRAPH 2.01(e) of the Credit Agreement,
Borrower hereby irrevocably selects a new Interest Period for a
Borrowing as follows:
(a) The Borrowing for which a new Interest Period is to be
selected consists of LIBOR Loans in the aggregate principal amount of
$__________ which were initially advanced to Borrower on ___________,
____;
(b) The last day of the current Interest Period for such Loans
is ___________, ____; and
(c) The next Interest Period for such Loans commencing upon
the last day of the current Interest Period is to be _________ months.
3. Borrower hereby certifies to the Agents and the Lenders
that, on the date of this Notice of Interest Period Selection, and
after giving effect to the requested selection:
(a) The representations and warranties of Borrower set forth
in PARAGRAPH 4.01 of the Credit Agreement and in the other Credit
Documents are true and correct in all material respects as if made on
such date (except for representations and warranties expressly made as
of a specified date, which shall be true as of such date);
(b) No Default or Event of Default has occurred and is
continuing; and
(c) All of the Credit Documents are in full force and effect.
I-
IN WITNESS WHEREOF, Borrower has executed this Notice of
Interest Period Selection on the date set forth above.
ADAC LABORATORIES
By:
Name:
Title:
C-
EXHIBIT D
MATURITY DATE EXTENSION REQUEST
[Date]
ABN AMRO Bank N.V.
as Agent
Capital Markets Syndication Group
0000 Xxxxxx xx xxx Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
1. Reference is made to that certain Amended and Restated
Credit Agreement, dated as of March 29, 1999 (the "CREDIT AGREEMENT"),
among ADAC Laboratories ("BORROWER"), the financial institutions listed
in SCHEDULE I to the Credit Agreement (the "LENDERS") and ABN AMRO Bank
N.V., as agent for the Lenders (in such capacity, "AGENT"). Unless
otherwise indicated, all terms defined in the Credit Agreement have the
same respective meanings when used herein.
2. Upon the execution of a copy of this letter by each
Lender, the return thereof to Agent and the written notification
thereof by Agent to Borrower and Lenders, the Maturity Date, as defined
in PARAGRAPH 1.01 of the Credit Agreement, shall be amended by changing
the date "December 31, ____" to December 31, 20__."
Except as specifically amended hereby, all terms, covenants
and conditions of the Credit Agreement shall remain in full force and
effect.
Very truly yours,
ADAC LABORATORIES
By:
Name:
Title:
I-
EXHIBIT E
AMENDED AND RESTATED NOTE
$________________________________________________________,_____________
_________________________________________________________,_____________
FOR VALUE RECEIVED, ADAC LABORATORIES, a California
corporation ("BORROWER"), hereby promises to pay to the order of
____________________, a ____________________ ("LENDER"), the principal
sum of ______________________________ DOLLARS ($__________) or such
lesser amount as shall equal the aggregate outstanding principal
balance of the Loans made by Lender to Borrower pursuant to the Amended
and Restated Credit Agreement referred to below (as amended from time
to time, the "CREDIT AGREEMENT"), on or before the Maturity Date
specified in the Credit Agreement; and to pay interest on said sum, or
such lesser amount, at the rates and on the dates provided in the
Credit Agreement.
Borrower shall make all payments hereunder, for the account of
Lender's Applicable Lending Office, to Agent as indicated in the Credit
Agreement, in lawful money of the United States and in same day or
immediately available funds.
Borrower hereby authorizes Lender to record on the schedule(s)
annexed to this note the date and amount of each Loan and of each
payment or prepayment of principal made by Borrower and agrees that all
such notations shall constitute prima facie evidence of the matters
noted; provided, however, that the failure of Lender to make any such
notation shall not affect Borrower's obligations hereunder.
This note is one of the Notes referred to in the Amended and
Restated Credit Agreement, dated as of March 29, 1999, among Borrower,
Lender and the other financial institutions from time to time parties
thereto (collectively, the "Lenders") and ABN AMRO Bank N.V., as agent
for the Lenders. This note is subject to the terms of the Credit
Agreement, including the rights of prepayment and the rights of
acceleration of maturity set forth therein. Terms used herein have the
meanings assigned to those terms in the Credit Agreement, unless
otherwise defined herein.
The transfer, sale or assignment of any rights under or
interest in this note is subject to certain restrictions contained in
the Credit Agreement, including PARAGRAPH 8.05 thereof.
Borrower shall pay all reasonable fees and expenses, including
reasonable attorneys' fees, incurred by Lender in the enforcement or
attempt to enforce any of Borrower's obligations hereunder not
performed when due. Borrower hereby waives notice of presentment,
demand, protest or notice of any other kind. This note shall be
governed by and construed in accordance with the laws of the State of
California.
ADAC LABORATORIES
I-
By:
Name:
Title:
E-
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LOANS AND PAYMENTS OF PRINCIPAL
---------------------------------------------------------------------------------------------------------------
Date Type of Amount of Interest Amount of Unpaid Notation
Loan Loan Period Principal Principal Made By
Paid Balance
or Prepaid
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EXHIBIT F
AMENDED AND RESTATED GUARANTY
THIS AMENDED AND RESTATED GUARANTY (this "GUARANTY"), dated as
of March 29, 1999 is executed by each of the undersigned (each such
entity and each entity which hereafter executes and delivers a
Subsidiary Joinder in substantially the form of Attachment 1 hereto to
be referred to herein as a "GUARANTOR"), in favor of ABN AMRO BANK
N.V., a Netherlands public company acting through its San Francisco
International Branch, acting as agent (in such capacity, "AGENT") for
the financial institutions which are from time to time parties to the
Credit Agreement referred to in Recital A below (collectively, the
"LENDERS").
RECITALS
A. Pursuant to a Credit Agreement dated as of July 31, 1996
(as amended to the date hereof, the "EXISTING CREDIT AGREEMENT"), among
ADAC Laboratories, a California corporation ("BORROWER"), the Lenders
and Agent, the Lenders have agreed to extend certain credit facilities
to Borrower upon the terms and subject to the conditions set forth
therein. The availability of the credit facilities under such Existing
Credit Agreement was subject, among other conditions, to the execution
and delivery of each Guarantor of a Guaranty dated as of July 31, 1996
(the "EXISTING GUARANTY").
B. Borrower has requested Agent and the Lenders to amend the
Existing Credit Agreement in certain respects. Pursuant to an Amended
and Restated Credit Agreement dated the date hereof (the "CREDIT
AGREEMENT"), among Borrower, Agent and the Lenders, Agent and the
Lenders have agreed to amend and restate the Existing Credit Agreement
upon the terms and subject to the conditions set forth therein
including, without limitation, (i) receipt by Agent of this Guaranty,
duly executed by each existing Domestic Subsidiary of Borrower, which
amends, and for convenience of reference, restates the Existing
Guaranty as so amended in its entirety and (ii) the receipt by Agent of
Subsidiary Joinders, duly executed by each future Domestic Subsidiary
of Borrower. Each of the undersigned Guarantors is a Domestic
Subsidiary of Borrower and expects to continue to derive substantial
direct and indirect benefit from the transactions contemplated by the
Credit Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for
other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, each Guarantor hereby agrees with Agent,
for the ratable benefit of the Lenders and Agent, that the Existing
Guaranty shall be amended and restated to read in its entirety as
follows:
1. DEFINITIONS AND INTERPRETATION.
F-
(a) DEFINITIONS. When used in this Guaranty, the
following terms shall have the following respective meanings:
"ADJUSTED MAXIMUM GUARANTY AMOUNT" shall mean, with
respect to any Guarantor, the maximum liability of such
Guarantor under this Guaranty, limited to the extent provided
in SUBPARAGRAPH 2(d) hereof (except that, for purposes of
calculating the Adjusted Maximum Guaranty Amount of a
Guarantor only, any assets or liabilities of such Guarantor
arising under PARAGRAPH 8 hereof shall be ignored).
"AGENT" shall have the meaning given to that term in
the INTRODUCTORY PARAGRAPH hereof.
"AGGREGATE GUARANTY PAYMENTS" shall mean, with
respect to any Guarantor at any time, the aggregate net amount
of all payments made by such Guarantor under this Guaranty
(including, without limitation, under PARAGRAPH 8 hereof) at
or prior to such time.
"BORROWER" shall have the meaning given to that term
in the RECITAL A hereof.
"CREDIT AGREEMENT" shall have the meaning given to
that term in the RECITAL B hereof.
"DISALLOWED POST-COMMENCEMENT INTEREST AND EXPENSES"
shall mean interest computed at the rate provided in the
Credit Agreement and claims for reimbursement, costs, expenses
or indemnities under the terms of any of the Credit Documents
accruing or claimed at any time after the commencement of any
Insolvency Proceeding, if the claim for such interest,
reimbursement, costs, expenses or indemnities is not
allowable, allowed or enforceable against Borrower in such
Insolvency Proceeding.
"EXISTING CREDIT AGREEMENT" shall have the meaning
given to the term in RECITAL A hereof.
"EXISTING GUARANTY" shall have the meaning given to
the term in RECITAL A hereof.
"FAIR SHARE" shall mean, with respect to any
Guarantor at any time, an amount equal to (i) a fraction, the
numerator of which is the Adjusted Maximum Guaranty Amount of
such Guarantor and the denominator of which is the aggregate
Adjusted Maximum Guaranty Amounts of all Guarantors,
multiplied by (ii) the aggregate amount paid by all Funding
Guarantors under this Guaranty at or prior to such time.
"FAIR SHARE SHORTFALL" shall mean, with respect to
any Guarantor at any
F-
time, the amount, if any, by which the Fair Share of such
Guarantor at such time exceeds the Aggregate Guaranty
Payments of such Guarantor at such time.
"FUNDING GUARANTOR" shall have the meaning given to
that term in PARAGRAPH 8 hereof.
"GUARANTEED OBLIGATIONS" shall mean all loans,
advances, debts, liabilities and obligations, howsoever
arising, owed by Borrower to Agent or any Lender of every kind
and description (whether or not evidenced by any note or
instrument and whether or not for the payment of money),
direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising pursuant to the terms
of the Credit Agreement or any of the other Credit Documents,
including, without limitation, all principal, interest, rent,
fees, taxes, charges, expenses, attorneys' fees and
accountants' fees chargeable to Borrower or payable by
Borrower thereunder.
"GUARANTOR" shall have the meaning given to that term
in the introductory paragraph hereof.
"INSOLVENCY PROCEEDING" shall mean any case or
proceeding under the United States Bankruptcy Code or any
other similar law, rule or regulation of the United States or
any jurisdiction or any other action or proceeding for the
reorganization, liquidation, appointment of a receiver,
rearrangement of debts, marshalling of assets or similar
action relating to Borrower or any Guarantor, their respective
creditors or any substantial part of their respective assets,
whether or not any such case, proceeding or action is
voluntary or involuntary.
"LENDERS" shall have the meaning given to that term
in the introductory paragraph hereof.
"SUBORDINATED OBLIGATIONS" shall have the meaning
given to that term in Paragraph 6 hereof.
"SUBSIDIARY JOINDER" shall mean an agreement
substantially in the form of ATTACHMENT 1 hereto.
Unless otherwise defined herein, all other capitalized terms used
herein and defined in the Credit Agreement shall have the respective
meanings given to those terms in the Credit Agreement.
(b) OTHER INTERPRETIVE PROVISIONS. The rules of
construction set forth in SECTION I OF THE CREDIT AGREEMENT
shall, to the extent not inconsistent with the terms of this
Guaranty, apply to this Guaranty and are hereby incorporated
by reference. Each Guarantor acknowledges receipt of copies of
the Credit Agreement and the other Credit Documents.
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2. GUARANTY.
(a) PAYMENT GUARANTY. Each Guarantor unconditionally
guarantees and promises to pay and perform as and when due,
whether at stated maturity, upon acceleration or otherwise,
any and all of the Guaranteed Obligations. If any Insolvency
Proceeding relating to Borrower is commenced, each Guarantor
further unconditionally guarantees and promises to pay and
perform, upon the demand of Agent, any and all of the
Guaranteed Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses) in accordance with
the terms of the Credit Documents, whether or not such
obligations are then due and payable by Borrower and whether
or not such obligations are modified, reduced or discharged in
such Insolvency Proceeding. This Guaranty is a guaranty of
payment and not of collection.
(b) CONTINUING GUARANTY. This Guaranty is an
irrevocable continuing guaranty of the Guaranteed Obligations
which shall continue in effect until all obligations of the
Lenders to extend credit to Borrower have terminated and all
of the Guaranteed Obligations have been fully, finally and
indefeasibly paid. If any payment on any Guaranteed Obligation
is set aside, avoided or rescinded or otherwise recovered from
Agent or any Lender, such recovered payment shall constitute a
Guaranteed Obligation hereunder and, if this Guaranty was
previously released or terminated, it automatically shall be
fully reinstated, as if such payment was never made.
(c) INDEPENDENT OBLIGATION. The liability of each
Guarantor hereunder is independent of the Guaranteed
Obligations and of the obligations of each other Guarantor
hereunder, and a separate action or actions may be brought and
prosecuted against each Guarantor irrespective of whether
action is brought against Borrower, any other Guarantor or any
other guarantor of the Guaranteed Obligations or whether
Borrower, any other Guarantor or any other guarantor of the
Guaranteed Obligations is joined in any such action or
actions.
(d) FRAUDULENT TRANSFER LIMITATION. If, in any action
to enforce this Guaranty, any court of competent jurisdiction
determines that enforcement against any Guarantor for the full
amount of the Guaranteed Obligations is not lawful under or
would be subject to avoidance under Xxxxxxx 000 xx xxx Xxxxxx
Xxxxxx Bankruptcy Code or any applicable provision of any
comparable law of any state or other jurisdiction, the
liability of such Guarantor under this Guaranty shall be
limited to the maximum amount lawful and not subject to such
avoidance.
(e) TERMINATION. Notwithstanding any termination of
this Guaranty in accordance with PARAGRAPH 6 hereof, this
Guaranty shall continue to be in full force and effect and
applicable to any Guaranteed Obligations arising thereafter
which arise because prior payments of Guaranteed Obligations
are rescinded or otherwise required to be surrendered by Agent
or any Lender after receipt.
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3. REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby
represents and warrants to Agent and the Lenders as follows:
(a) DUE INCORPORATION, QUALIFICATION, ETC. Such
Guarantor is a duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization
and is duly qualified and in good standing in each
jurisdiction where the nature of its business or properties
requires such qualification, except where the failure to
qualify could not have a Material Adverse Effect.
(b) AUTHORITY. The execution, delivery and
performance by such Guarantor of this Guaranty are within the
power of such Guarantor and have been duly authorized by all
necessary actions on the part of such Guarantor.
(c) ENFORCEABILITY. This Guaranty has been duly
executed and delivered by such Guarantor and constitutes a
legal, valid and binding obligation of such Guarantor,
enforceable against it in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general
application relating to or affecting the enforcement of
creditors' rights generally.
(d) NON-CONTRAVENTION. The execution, delivery and
performance by such Guarantor of this Guaranty do not (i)
violate any Requirement of Law applicable to such Guarantor,
(ii) contravene any material Contractual Obligation of such
Guarantor or (iii) result in the creation or imposition of any
Lien upon any property, asset or revenue of such Guarantor.
(e) APPROVALS. No consent, approval, order or
authorization of, or registration, declaration or filing with,
any Governmental Authority or other Person (including, without
limitation, the shareholders of any Person) is required in
connection with the execution, delivery and performance of
this Guaranty, except such consents, approvals, orders,
authorizations, registrations, declarations and filings that
are so required and which have been obtained and are in full
force and effect.
(f) NO VIOLATION. No Guarantor is in violation of any
Requirement of Law applicable to such Guarantor or any
Contractual Obligation of such Guarantor, where, in either
case, such violation is reasonably likely to have a Material
Adverse Effect.
(g) LITIGATION. No actions (including, without
limitation, derivative actions), suits, proceedings or
investigations are pending or, to the knowledge of such
Guarantor, threatened against such Guarantor in any court or
before any other Governmental Authority which (i) is
reasonably likely (alone or in the aggregate) to have a
Material Adverse Effect or (ii) seeks to enjoin, either
directly or indirectly, the execution, delivery or performance
of this Guaranty by such Guarantor;
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(h) FINANCIAL STATEMENTS. The Financial Statements of
such Guarantor, which have been delivered to Agent and the
Lenders fairly present the information reflected therein and
have been prepared in accordance with GAAP.
(i) OTHER REGULATIONS. Such Guarantor is not subject
to regulation under the Investment Company Act of 1940, the
Public Utility Holding Company Act of 1935, the Federal Power
Act, any state public utilities code or to any other
Governmental Rule limiting its ability to incur indebtedness.
(j) TAXES. Such Guarantor has paid all taxes and
other charges imposed by any Governmental Authority due and
payable by such Guarantor other than those which are being
challenged in good faith by appropriate proceedings and for
which adequate reserves have been established.
4. COVENANTS. Until all obligations of Agent or any Lender to
extend credit to Borrower have terminated and all of the Guaranteed
Obligations have been fully, finally and indefeasibly paid, each
Guarantor shall comply with the following covenants:
(a) FINANCIAL STATEMENTS, REPORTS, ETC. Such
Guarantor shall furnish to Agent, with sufficient copies for
each Lender, the following, each in such form and such detail
as Agent or the Required Lenders shall reasonably request:
(i) Such Financial Statements of such
Guarantor as Agent or the Required Lenders shall
reasonably request;
(ii) Notice of any Default or Event of
Default known to such Guarantor or of any other event
or condition known to such Guarantor which is
reasonably likely to have a Material Adverse Effect;
and
(iii) Such other certificates, opinions,
statements, documents and information relating to the
operations or condition (financial or otherwise) of
such Guarantor or its Subsidiaries, and compliance by
Borrower and such Guarantor with the terms of the
Credit Documents as Agent or any Lender may from time
to time reasonably request.
(b) BOOKS AND RECORDS. Such Guarantor and its
Subsidiaries shall maintain proper books of record and account
in accordance with good business practices and GAAP.
(c) INSPECTIONS. Such Guarantor and its Subsidiaries
shall permit any Person designated by Agent or any Lender,
upon reasonable notice and during normal business hours, to
visit and inspect any of the properties and offices of such
Guarantor and its Subsidiaries, to examine the books and
records of such Guarantor and its Subsidiaries and make copies
thereof and to discuss the affairs, finances and accounts of
such Guarantor and its Subsidiaries with, and to be advised as
to the same by, their officers, auditors and accountants, all
at such
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times and intervals as Agent or any Lender may reasonably
request.
(d) INSURANCE. Such Guarantor and its Subsidiaries
shall maintain with financially sound and reputable insurance
carriers insurance in such amounts, with such deductibles and
covering such risks as is customary for companies engaged in
similar businesses in the same geographic areas as such
Guarantor and its Subsidiaries.
(e) GOVERNMENTAL CHARGES AND OTHER INDEBTEDNESS. To
the extent failure to do so could have a Material Adverse
Effect, such Guarantor and its Subsidiaries shall promptly pay
and discharge all taxes and other charges imposed by any
Government Authority upon such Guarantor or its Subsidiaries
or their property as and when they become due.
(f) GENERAL BUSINESS OPERATIONS. To the extent
failure to do so could have a Material Adverse Effect, such
Guarantor and its Subsidiaries shall (i) maintain its
corporate existence and all rights, privileges and franchises
necessary for the conduct of its business and (ii) comply with
all Requirements of Law and Contractual Obligations applicable
to it.
5. AUTHORIZATIONS, WAIVERS, ETC.
(a) AUTHORIZATIONS. Each Guarantor authorizes Agent
and the Lenders, in their discretion, without notice to such
Guarantor, irrespective of any change in the financial
condition of Borrower, such Guarantor, any other Guarantor or
any other guarantor of the Guaranteed Obligations since the
date hereof, and without affecting or impairing in any way the
liability of such Guarantor hereunder, from time to time to:
(i) Create new Guaranteed Obligations and
renew, compromise, extend, accelerate or otherwise
change the time for payment or performance of, or
otherwise amend or modify the Credit Documents or
change the terms of the Guaranteed Obligations or any
part thereof, including increase or decrease of the
rate of interest thereon;
(ii) Take and hold security for the payment
or performance of the Guaranteed Obligations and
exchange, enforce, waive or release any such
security; apply such security and direct the order or
manner of sale thereof; and purchase such security at
public or private sale;
(iii) Otherwise exercise any right or remedy
they may have against Borrower, such Guarantor, any
other Guarantor, any other guarantor of the
Guaranteed Obligations or any security, including,
without limitation, the right to foreclose upon any
such security by judicial or nonjudicial sale;
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(iv) Settle, compromise with, release or
substitute any one or more makers, endorsers or
guarantors of the Guaranteed Obligations; and
(v) Assign the Guaranteed Obligations, this
Guaranty or the other Credit Documents in whole or in
part to the extent provided in the Credit Agreement
and the other Credit Documents.
(b) WAIVERS. Each Guarantor hereby waives:
(i) Any right to require Agent or any Lender
to (A) proceed against Borrower, any other Guarantor
or any other guarantor of the Guaranteed Obligations,
(B) proceed against or exhaust any security received
from Borrower, such Guarantor, any other Guarantor or
any other guarantor of the Guaranteed Obligations or
otherwise xxxxxxxx the assets of Borrower, such
Guarantor, any other Guarantor or any other guarantor
of the Guaranteed Obligations or (C) pursue any other
remedy in Agent's or any Lender's power whatsoever;
(ii) Any defense arising by reason of the
application by Borrower of the proceeds of any
borrowing;
(iii) Any defense resulting from the
absence, impairment or loss of any right of
reimbursement, subrogation, contribution or other
right or remedy of Guarantor against Borrower, any
other Guarantor, any other guarantor of the
Guaranteed Obligations or any security, whether
resulting from an election by Agent or any Lender to
foreclose upon security by nonjudicial sale, or
otherwise;
(iv) Any setoff or counterclaim of Borrower
or any defense which results from any disability or
other defense of Borrower or the cessation or stay of
enforcement from any cause whatsoever of the
liability of Borrower (including, without limitation,
the lack of validity or enforceability of any of the
Credit Documents);
(v) Any defense based upon any law, rule or
regulation which provides that the obligation of a
surety must not be greater or more burdensome than
the obligation of the principal;
(vi) Until all obligations of Agent or any
Lender to extend credit to Borrower have terminated
and all of the Guaranteed Obligations have been
fully, finally and indefeasibly paid, any right of
subrogation, reimbursement, indemnification or
contribution and other similar right to enforce any
remedy which Agent, the Lenders or any other Person
now has or may hereafter have against Borrower on
account of the Guaranteed Obligations, and any
benefit of, and any right to participate in, any
security now or hereafter received by Agent, any
Lender or any other
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Person on account of the Guaranteed Obligations;
(vii) All presentments, demands for
performance, notices of non-performance, notices
delivered under the Credit Documents, protests,
notice of dishonor, and notices of acceptance of this
Guaranty and of the existence, creation or incurring
of new or additional Guaranteed Obligations and
notices of any public or private foreclosure sale;
(viii) The benefit of any statute of
limitations to the extent permitted by law;
(ix) Any appraisement, valuation, stay,
extension, moratorium redemption or similar law or
similar rights for marshalling;
(x) Any right to be informed by Agent or any
Lender of the financial condition of Borrower, any
other Guarantor or any other guarantor of the
Guaranteed Obligations or any change therein or any
other circumstances bearing upon the risk of
nonpayment or nonperformance of the Guaranteed
Obligations;
(xi) Until all obligations of Agent or any
Lender to extend credit to Borrower have terminated
and all of the Guaranteed Obligations have been
fully, finally and indefeasibly paid, any right to
revoke this Guaranty;
(xii) Any defense arising from an election
for the application of Section 1111(b)(2) of the
United States Bankruptcy Code which applies to the
Guaranteed Obligations;
(xiii) Any defense based upon any borrowing
or grant of a security interest under Section 364 of
the United States Bankruptcy Code;
(xiv) Any right it may have to a fair value
hearing to determine the size of a deficiency
judgment following any foreclosure on any security
for the Guaranteed Obligations;
(xv) All rights and defenses arising out of
an election of remedies by Agent or any Lender, even
though that election of remedies, such as a
nonjudicial foreclosure with respect to security for
a Guaranteed Obligation, has destroyed such
Guarantor's rights of subrogation and reimbursement
against Borrower by the operation of Section 580d of
the Code of Civil Procedure or otherwise; and
(xvi) All other rights and defenses
available to such Guarantor by reason of Sections
2787 to 2855, inclusive, Section 2899 or Section 3433
of the California Civil Code or Section 3605 of the
California Commercial
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Code.
Without limiting the scope of any of the foregoing provisions
of this Paragraph 5, and pursuant to the provisions of
California Civil Code Section 2856, each Guarantor hereby
further waives all rights and defenses that such Guarantor may
have because the Guaranteed Obligations are secured by real
property. This means, among other things:
(A) Agent or any Lender may collect from any
Guarantor without first foreclosing on any real or
personal property collateral pledged by Borrower.
(B) If Agent or any Lender forecloses on any
real property collateral pledged by Borrower:
(1) The amount of the Guaranteed
Obligations may be reduced only by the price
for which that collateral is sold at the
foreclosure sale, even if the collateral is
worth more than the sale price.
(2) Agent or any Lender may collect
from any Guarantor even if Agent or any
Lender, by foreclosing on the real property
collateral, has destroyed any right such
Guarantor or any other Guarantor may have to
collect from Borrower.
This is an unconditional and irrevocable waiver of any rights
and defenses each Guarantor may have because the Guaranteed
Obligations are secured by real property. These rights and
defenses include, but are not limited to, any rights or
defenses based upon Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure.
(c) FINANCIAL CONDITION OF BORROWER, ETC. Each
Guarantor is fully aware of the financial condition and
affairs of Borrower. Each Guarantor has executed this Guaranty
without reliance upon any representation, warranty, statement
or information concerning Borrower furnished to such Guarantor
by Agent or any Lender and has, independently and without
reliance on Agent or any Lender, and based on such documents
and information as it has deemed appropriate, made its own
appraisal of the financial condition and affairs of Borrower
and of other circumstances affecting the risk of nonpayment or
nonperformance of the Guaranteed Obligations. Each Guarantor
is in a position to obtain, and assumes full responsibility
for obtaining, any additional information about the financial
condition and affairs of Borrower and of other circumstances
affecting the risk of nonpayment or nonperformance of the
Guaranteed Obligations and will, independently and without
reliance upon Agent or any Lender, and based on such documents
and information as it shall deem appropriate at the time,
continue to make its own appraisals and decisions in
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taking or not taking action in connection with this Guaranty.
6. SUBORDINATION. Each Guarantor hereby subordinates any and
all debts, liabilities and obligations owed to such Guarantor by
Borrower or any Subsidiary of Borrower (the "SUBORDINATED OBLIGATIONS")
to the Guaranteed Obligations as provided in this PARAGRAPH 6.
(a) PROHIBITED PAYMENTS, ETC. Until the occurrence of
a Default or an Event of Default or any default by any
Guarantor hereunder, each Guarantor and its Subsidiaries may
receive regularly scheduled payments from Borrower on account
of Subordinated Obligations. After the occurrence and during
the continuance of any Default or Event of Default or any
default by any Guarantor hereunder (including the commencement
and continuation of any Insolvency Proceeding relating to
Borrower, however, unless Agent or Required Lenders otherwise
requests, no Guarantor shall, nor shall it permit any of its
Subsidiaries to, demand, accept or take any action to collect
any payment on account of the Subordinated Obligations.
(b) PRIOR PAYMENT OF GUARANTEED OBLIGATIONS. In any
Insolvency Proceeding relating to Borrower, each Guarantor
agrees that Agent and the Lenders shall be entitled to receive
payment of all Guaranteed Obligations (including any and all
Disallowed Post-Commencement Interest and Expenses) before
such Guarantor or any of its Subsidiaries receives payment of
any Subordinated Obligations.
(c) TURN-OVER. After the occurrence and during the
continuance of any Default or Event of Default (including the
commencement and continuation of any Insolvency Proceeding
relating to Borrower, each Guarantor and its Subsidiaries
shall, if Agent or Required Lenders so requests, collect,
enforce and receive payments on account of the Subordinated
Obligations as trustee for Agent and the Lenders and deliver
such payments to Agent on account of the Guaranteed
Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses), together with any
necessary endorsements or other instruments of transfer, but
without reducing or affecting in any manner the liability of
such Guarantor under the other provisions of this Guaranty.
(d) AGENT AUTHORIZATION. After the occurrence and
during the continuance of any Default or Event of Default or
any default by a Guarantor hereunder (including the
commencement and continuation of any Insolvency Proceeding
relating to Borrower, Agent is authorized and empowered (but
without any obligation to so do), in its discretion, (i) in
the name of each Guarantor and its Subsidiaries, to collect
and enforce, and to submit claims in respect of, Subordinated
Obligations and to apply any amounts received thereon to the
Guaranteed Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses), and (ii) to require
each Guarantor (A) to collect and
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enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such
obligations to Agent for application to the Guaranteed
Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses).
7. GENERAL PLEDGE; SETOFF.
(a) PLEDGE. In addition to all liens upon and rights
of setoff against the property of any Guarantor given to Agent
or any Lender by law or separate agreement to secure the
liabilities of any Guarantor hereunder, to the extent
permitted by law, each Guarantor hereby grants to Agent (for
the ratable benefit of Agent and the Lenders), as security for
such Guarantor's obligations hereunder, a security interest in
all monies, deposit accounts, securities and other property of
such Guarantor now or hereafter in the possession of or on
deposit with Agent or any Lender, whether held in a general or
special account or deposit, or for safekeeping or otherwise;
and Agent shall have all rights and remedies of a secured
party with respect to such property.
(b) SETOFF. In addition to any rights and remedies of
Agent or any Lender provided by law, Agent and the Lenders
(with the prior consent of Agent) shall have the right,
without prior notice to any Guarantor, any such notice being
expressly waived by each Guarantor to the extent permitted by
applicable law, upon the occurrence and during the continuance
of a Default or an Event of Default, to set-off and apply
against the Guaranteed Obligations any amount owing from Agent
or any Lender to such Guarantor, including all deposits,
accounts and moneys of such Guarantor then or thereafter
maintained with Agent or any Lender, at or at any time after,
the happening of any of the above mentioned events.
(c) NONWAIVER. No security interest or right of
setoff shall be deemed to have been waived by any act or
conduct on the part of Agent or any Lender or by any failure
to exercise such right of setoff or to enforce such security
interest, or by any delay in so doing; and every right of
setoff and security interest shall continue in full force and
effect until such right of setoff or security interest is
specifically waived or released by an instrument in writing
executed by Agent.
8. CONTRIBUTION AMONG GUARANTORS. The Guarantors desire to
allocate among themselves, in a fair and equitable manner, their rights
of contribution from each other when any payment is made by any
Guarantor under this Guaranty. Accordingly, if any payment is made by
any Guarantor under this Guaranty (a "FUNDING GUARANTOR") that exceeds
its Fair Share, the Funding Guarantor shall be entitled to a
contribution from each other Guarantor in the amount of such other
Guarantor's Fair Share Shortfall, so that all such contributions shall
cause each Guarantor's Aggregate Guaranty Payments to equal its Fair
Share. The amounts payable as contributions hereunder shall be
determined by the Funding Guarantor as of the date on which the related
payment or distribution is
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made by the Funding Guarantor, and such determination shall be
binding on the other Guarantors absent manifest error. The
allocation and right of contribution among the Guarantors set forth
in this Paragraph 8 shall not be construed to limit in any way the
liability of any Guarantor under this Guaranty or the amount of
the Guaranteed Obligations.
9. MISCELLANEOUS.
(a) NOTICES. Except as otherwise provided herein, all
notices, requests, demands, consents, instructions or other
communications to or upon any Guarantor, any Lender or Agent
under this Guaranty or the other Credit Documents to which a
Guarantor is a party shall be in writing and faxed, mailed or
delivered, if to a Guarantor or Agent, at its respective
facsimile number or address set forth below or in the
respective Subsidiary Joinder for such Guarantor or, if to any
Lender, at the address or facsimile number specified beneath
the heading "Address for Notices" under the name of such
Lender in Schedule I to the Credit Agreement (or to such other
facsimile number or address for any party as indicated in any
notice given by that party to the other parties). All such
notices and communications shall be effective (i) when sent by
overnight service of recognized standing, on the second
Business Day following the deposit with such service; (ii)
when mailed, first class postage prepaid and addressed as
aforesaid through the United States Postal Service, upon
receipt; (iii) when delivered by hand, upon delivery; and (iv)
when faxed, upon confirmation of receipt.
Guarantor: ADAC Research and Mfg., Inc.
c/o ADAC Laboratories
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Andre' Simone
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Guarantor: ADAC Healthcare Information
Systems, Inc.
c/o ADAC Laboratories
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Andre' Simone
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Guarantor: ADAC Medical Technologies,
Inc.
c/o ADAC Laboratories
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Andre' Simone
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Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Guarantor: ADAC Laboratories Pacific,
Inc.
c/o ADAC Laboratories
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Andre' Simone
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Guarantor: ADAC Healthcare Partners,
Inc.
c/o ADAC Laboratories
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Andre' Simone
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Guarantor: ADAC Radiology Services,
Inc.
c/o ADAC Laboratories
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Andre' Simone
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Guarantor: Cortet, Inc.
c/o ADAC Laboratories
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Andre' Simone
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Guarantor: O.N.E.S. Medical Services,
Inc.
c/o ADAC Laboratories
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Andre' Simone
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Guarantor: CT Solutions Inc.
c/o ADAC Laboratories
000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Andre' Simone
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Agent: ABN AMRO Bank N.V.
000 Xxxxxxxxxx Xxxxxx,
Xxxxx 0000
Xxx Xxxxxxxxx, XX
00000-0000
Attn: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
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Facsimile: (000) 000-0000
with a copy to:
ABN AMRO Bank N.V.
1325 Avenue of the
Xxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax No: (000) 000-0000
(b) PAYMENTS. Each Guarantor shall make all payments
required hereunder to Agent, or its order, at Agent's office
located at the address set forth in SUBPARAGRAPH 9(a) hereof,
or at such other office as Agent may designate, on demand, in
Dollars. If any amounts required to be paid by a Guarantor
under this Guaranty are not paid when due, such Guarantor
shall pay interest on the aggregate, outstanding balance of
such amounts from the date due until those amounts are paid in
full at a per annum rate equal to the Base Rate plus two
percent (2.00%), such rate to change from time to time as the
Base Rate shall change.
(c) EXPENSES. Each Guarantor shall pay on demand (i)
all reasonable fees and expenses, including reasonable
attorneys' fees and expenses, incurred by Agent in connection
with the preparation, execution and delivery of, and the
exercise of its duties under, this Guaranty and the
preparation, execution and delivery of amendments and waivers
hereunder and (ii) all reasonable fees and expenses, including
reasonable attorneys' fees and expenses, incurred by Agent and
the Lenders in connection with the enforcement or attempted
enforcement of this Guaranty or any of the Guaranteed
Obligations or in preserving any of Agent's or the Lenders'
rights and remedies (including, without limitation, all such
fees and expenses incurred in connection with any "workout" or
restructuring affecting the Credit Documents or the Guaranteed
Obligations or any bankruptcy or similar proceeding involving
Guarantor, any other Guarantor, Borrower or any of their
affiliates).
(d) WAIVERS; AMENDMENTS. This Guaranty may not be
amended or modified, nor may any of its terms be waived,
except by written instruments signed by each Guarantor and
Agent to the extent permitted pursuant to Section 8.04 of the
Credit Agreement. Each waiver or consent under any provision
hereof shall be effective only in the specific instances for
the purpose for which given. No failure or delay on Agent's or
any Lender's part in exercising any right hereunder shall
operate as a waiver thereof or of any other right nor shall
any single or partial exercise of any such right preclude any
other further exercise thereof or of any other right.
(e) ASSIGNMENTS. This Guaranty shall be binding upon
and inure to
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the benefit of Agent, the Lenders, the Guarantors and their
respective successors and assigns; PROVIDED, HOWEVER, that
no Guarantor may assign or transfer any of its rights and
obligations under this Guaranty without the prior written
consent of Agent and the Lenders, and, PROVIDED, FURTHER,
that Agent and any Lender may sell, assign and delegate their
respective rights and obligations hereunder only as permitted
by the Credit Agreement. All references in this Guaranty to
any Person shall be deemed to include all permitted
successors and assigns of such Person.
(f) CUMULATIVE RIGHTS, ETC. The rights, powers and
remedies of Agent and the Lenders under this Guaranty shall be
in addition to all rights, powers and remedies given to Agent
and the Lenders by virtue of any applicable law, rule or
regulation of any Governmental Authority, the Credit
Agreement, any other Credit Document or any other agreement,
all of which rights, powers, and remedies shall be cumulative
and may be exercised successively or concurrently without
impairing Agent's or any Lender's rights hereunder. Each
Guarantor waives any right to require Agent or any Lender to
proceed against any Person or to exhaust any Collateral or to
pursue any remedy in Agent's or such Lender's power.
(g) PAYMENTS FREE OF TAXES, ETC. All payments made by
each Guarantor under this Guaranty shall be made by each
Guarantor free and clear of and without deduction for any and
all present and future taxes, levies, charges, deductions and
withholdings. In addition, each Guarantor shall pay upon
demand any stamp or other taxes, levies or charges of any
jurisdiction with respect to the execution, delivery,
registration, performance and enforcement of this Guaranty. If
any taxes, levies, charges or other amounts are required to be
withheld from any amounts payable to Agent or any Lender
hereunder, the amounts so payable to Agent or such Lender
shall be increased to the extent necessary to yield to Agent
or such Lender (after payment of all such amounts) any such
amounts payable hereunder in the amounts specified in this
Guaranty. Upon request by Agent or any Lender, each Guarantor
shall furnish evidence satisfactory to Agent or such Lender
that all requisite authorizations and approvals by, and
notices to and filings with, governmental authorities and
regulatory bodies have been obtained and made and that all
requisite taxes, levies and charges have been paid.
(h) PARTIAL INVALIDITY. If at any time any provision
of this Guaranty is or becomes illegal, invalid or
unenforceable in any respect under the law or any
jurisdiction, neither the legality, validity or enforceability
of the remaining provisions of this Guaranty nor the legality,
validity or enforceability of such provision under the law of
any other jurisdiction shall in any way be affected or
impaired thereby.
(i) JOINT AND SEVERAL OBLIGATION. The obligations of
the Guarantors under this Guaranty are joint and several
obligations of each Guarantor and may be freely enforced
against each Guarantor, for the full amount of the Guaranteed
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Obligations, without regard to whether enforcement is sought
or available against any other Guarantor.
(j) GOVERNING LAW. This Guaranty shall be governed by
and construed in accordance with the laws of the State of
California without reference to conflicts of law rules.
(k) JURY TRIAL. EACH GUARANTOR, THE LENDERS AND
AGENT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY AS TO ANY
ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY.
(l) LIMITATION OF LIABILITY. NO CLAIM MAY BE MADE BY
ANY GUARANTOR AGAINST AGENT, ANY LENDER OR THE AFFILIATES,
DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS OR AGENTS OF AGENT
OR ANY LENDER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR
PUNITIVE DAMAGES IN RESPECT OF ANY CLAIM (WHETHER BASED UPON
ANY BREACH OF CONTRACT, TORT, BREACH OF STATUTORY DUTY OR ANY
OTHER THEORY OF LIABILITY) ARISING OUT OF OR RELATED TO THE
TRANSACTIONS CONTEMPLATED BY THIS GUARANTY, OR ANY ACT,
OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND
GUARANTOR HEREBY WAIVES, RELEASES AND AGREES NOT TO XXX UPON
ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT NOW ACCRUED AND
WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.
(m) COUNTERPARTS. This Agreement may be executed in
any number of identical counterparts, any set of which signed
by all parties hereto shall be deemed to constitute a
complete, executed original for all purposes.
IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be executed as of the day and year first above written.
ADAC RESEARCH AND MFG., INC.
By:
Name:
Title:
ADAC HEALTHCARE INFORMATION
SYSTEMS, INC.
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By:
Name:
Title:
ADAC MEDICAL TECHNOLOGIES, INC.
By:
Name:
Title:
ADAC LABORATORIES PACIFIC, INC.
By:
Name:
Title:
ADAC HEALTHCARE PARTNERS, INC.
By:
Name:
Title:
ADAC RADIOLOGY SERVICES, INC.
By:
Name:
Title:
CORTET, INC.
By:
Name:
Title:
O.N.E.S. MEDICAL SERVICES, INC.
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By:
Name:
Title:
CT SOLUTIONS INC.
By:
Name:
Title:
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ATTACHMENT 1
SUBSIDIARY JOINDER
THIS SUBSIDIARY JOINDER (this "AGREEMENT"), dated as of
____________, ____, is executed by [NEW SUBSIDIARY], a _________
[corporation] [partnership] [etc.] ("NEW SUBSIDIARY"), in favor of ABN
AMRO BANK N.V., a Netherlands public company acting through its San
Francisco International Branch, acting as agent (in such capacity,
"AGENT") for the financial institutions which are from time to time
parties to the Credit Agreement referred to in Recital A below
(collectively, the "LENDERS").
RECITALS
A. Pursuant to an Amended and Restated Credit Agreement dated
as of March 29, 1999 (as amended from time to time, the "CREDIT
AGREEMENT"), among ADAC Laboratories, a California corporation
("BORROWER"), the Lenders and Agent, the Lenders have agreed to extend
certain credit facilities to Borrower upon the terms and subject to the
conditions set forth therein.
B. The Lenders' obligations to extend the credit facilities to
Borrower under the Credit Agreement are subject, among other
conditions, to receipt by Agent of (1) an Amended and Restated
Guaranty, dated as of March 29, 1999 (the "GUARANTY"), duly executed by
each existing Domestic Subsidiary of Borrower, and (2) Subsidiary
Joinders, duly executed by each future Domestic Subsidiary of Borrower.
C. New Subsidiary is a new Domestic Subsidiary of Borrower and
expects to derive substantial direct and indirect benefit from the
transactions contemplated by the Credit Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for
other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, New Subsidiary hereby agrees with Agent,
for the ratable benefit of the Lenders and Agent, as follows:
1. DEFINITIONS AND INTERPRETATION. Unless otherwise defined
herein, all capitalized terms used herein and defined in the Guaranty
shall have the respective meanings given to those terms in the
Guaranty. New Subsidiary acknowledges receipt of copies of the
Guaranty, the Credit Agreement and the other Credit Documents.
2. REPRESENTATIONS AND WARRANTIES. On and as of the date of
this Agreement (the "EFFECTIVE DATE") and for the ratable benefit of
the Agent and the Lenders, New Subsidiary hereby makes each of the
representations and warranties made by each Guarantor in the Guaranty.
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3. AGREEMENT TO BE BOUND. New Subsidiary agrees that, on and
as of the Effective Date, it shall become a Guarantor under the
Guaranty and shall be bound by all the provisions of the Guaranty to
the same extent as if New Subsidiary had executed the Guaranty on the
Closing Date.
4. WAIVER. Without limiting the generality of the waivers in
the Guaranty, New Subsidiary specifically agrees to be bound by the
Guaranty and waives any right to notice of acceptance of its execution
of this Agreement and of its agreement to be bound by the Guaranty.
5. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California.
IN WITNESS WHEREOF, New Subsidiary has caused this Agreement
to be executed by its duly authorized officer.
[NEW SUBSIDIARY]
By:
Name:
Title:
Address:
[ ]
[ ]
[ ]
Attn: [ ]
Telephone: [(___) ___-____]
Facsimile: [(___) ___-____]
F[1]-
EXHIBIT G
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT, dated as of the date set forth at
the top of ATTACHMENT 1 hereto, by and among:
(1) The bank designated under item A of ATTACHMENT I
hereto as the Assignor Lender ("ASSIGNOR LENDER"); and
(2) Each bank designated under item B of ATTACHMENT I
hereto as an Assignee Lender (individually, an "ASSIGNEE
LENDER").
RECITALS
A. Assignor Lender is one of the lenders which is a party to
the Amended and Restated Credit Agreement dated as of March 29, 1999,
by and among ADAC Laboratories ("BORROWER,") Assignor Lender and the
other financial institutions parties thereto (collectively, the
"LENDERS") and ABN AMRO Bank N.V., as agent for the Lenders (in such
capacity, "AGENT"). (Such credit agreement, as amended, supplemented or
otherwise modified in accordance with its terms from time to time to be
referred to herein as the "CREDIT AGREEMENT").
B. Assignor Lender wishes to sell, and Assignee Lender wishes
to purchase, all or a portion of Assignor Lender's rights under the
Credit Agreement pursuant to SUBPARAGRAPH 8.05(c) of the Credit
Agreement.
AGREEMENT
Now, therefore, the parties hereto hereby agree as follows:
1. DEFINITIONS. Except as otherwise defined in this Assignment
Agreement, all capitalized terms used herein and defined in the Credit
Agreement have the respective meanings given to those terms in the
Credit Agreement.
2. SALE AND ASSIGNMENT. Subject to the terms and conditions of
this Assignment Agreement, Assignor Lender hereby agrees to sell,
assign and delegate to each Assignee Lender and each Assignee Lender
hereby agrees to purchase, accept and assume the rights, obligations
and duties of a Lender under the Credit Agreement and the other Credit
Documents equal to the Proportionate Share set forth under the caption
"Proportionate Share Transferred" opposite such Assignee Lender's name
on ATTACHMENT I hereto. Such sale, assignment and delegation shall
become effective on the date designated in ATTACHMENT I hereto (the
"ASSIGNMENT EFFECTIVE DATE"), which date shall be at least five (5)
Business Days after the date following the date counterparts of this
Assignment Agreement are delivered to Agent in accordance with
Paragraph 3 hereof.
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3. ASSIGNMENT EFFECTIVE NOTICE. Upon (a) receipt by Agent of
five (5) counterparts of this Assignment Agreement (to each of which is
attached a fully completed ATTACHMENT I), each of which has been
executed by Assignor Lender and each Assignee Lender (and, to the
extent required by SUBPARAGRAPH 8.05(c) OF THE CREDIT AGREEMENT, by
Borrower and Agent) and (b) payment to Agent of the registration and
processing fee specified in SUBPARAGRAPH 8.05(e) OF THE CREDIT
AGREEMENT by Assignor Lender, Agent will transmit to Borrower, Assignor
Lender and each Assignee Lender an Assignment Effective Notice
substantially in the form of ATTACHMENT II hereto, fully completed (an
"ASSIGNMENT EFFECTIVE NOTICE").
4. ASSIGNMENT EFFECTIVE DATE. At or before 12:00 noon (local
time of Assignor Lender) on the Assignment Effective Date, each
Assignee Lender shall pay to Assignor Lender, in immediately available
or same day funds, an amount equal to the purchase price, as agreed
between Assignor Lender and such Assignee Lender (the "PURCHASE
PRICE"), for the Proportionate Share purchased by such Assignee Lender
hereunder. Effective upon receipt by Assignor Lender of the Purchase
Price payable by each Assignee Lender, the sale, assignment and
delegation to such Assignee Lender of such Proportionate Share as
described in Paragraph 2 hereof shall become effective.
5. PAYMENTS AFTER THE ASSIGNMENT EFFECTIVE DATE. Assignor
Lender and each Assignee Lender hereby agree that Agent shall, and
hereby authorize and direct Agent to, allocate amounts payable under
the Credit Agreement and the other Credit Documents as follows:
(a) All principal payments made after the Assignment
Effective Date with respect to each Proportionate Share
assigned to an Assignee Lender pursuant to this Assignment
Agreement shall be payable to such Assignee Lender.
(b) All interest, fees and other amounts accrued
after the Assignment Effective Date with respect to each
Proportionate Share assigned to an Assignee Lender pursuant to
this Assignment Agreement shall be payable to such Assignee
Lender.
Assignor Lender and each Assignee Lender shall make any separate
arrangements between themselves which they deem appropriate with
respect to payments between them of amounts paid under the Credit
Documents on account of the Proportionate Share assigned to such
Assignee Lender, and neither Agent nor Borrower shall have any
responsibility to effect or carry out such separate arrangements.
6. DELIVERY OF NOTES. On or prior to the Assignment Effective
Date, Assignor Lender will deliver to Agent the Notes payable to
Assignor Lender. On or prior to the Assignment Effective Date, Borrower
will deliver to Agent new Notes for each Assignee Lender and Assignor
Lender, in each case in principal amounts reflecting, in accordance
with the Credit Agreement, their respective Commitments (as adjusted
pursuant to this Assignment Agreement). As provided in SUBPARAGRAPH
8.05(c) OF THE CREDIT AGREEMENT, each such new Note shall be dated the
Closing Date. Promptly after
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the Assignment Effective Date, Agent will send to each of Assignor
Lender and the Assignee Lenders its new Notes and will send to Borrower
the superseded Note payable to Assignor Lender, marked "Replaced."
7. DELIVERY OF COPIES OF CREDIT DOCUMENTS. Concurrently with
the execution and delivery hereof, Assignor Lender will provide to each
Assignee Lender (if it is not already a Lender party to the Credit
Agreement) conformed copies of all documents delivered to Assignor
Lender on or prior to the Closing Date in satisfaction of the
conditions precedent set forth in the Credit Agreement.
8. FURTHER ASSURANCES. Each of the parties to this Assignment
Agreement agrees that at any time and from time to time upon the
written request of any other party, it will execute and deliver such
further documents and do such further acts and things as such other
party may reasonably request in order to effect the purposes of this
Assignment Agreement.
9. FURTHER REPRESENTATIONS, WARRANTIES AND COVENANTS. Assignor
Lender and each Assignee Lender further represent and warrant to and
covenant with each other, Agent and the Lenders as follows:
(a) Other than the representation and warranty that
it is the legal and beneficial owner of the interest being
assigned hereby free and clear of any adverse claim, Assignor
Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the Credit
Agreement or the other Credit Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency
or value of the Credit Agreement or the other Credit Documents
furnished.
(b) Assignor Lender makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of Borrower or any of its obligations
under the Credit Agreement or any other Credit Documents.
(c) Each Assignee Lender confirms that it has
received a copy of the Credit Agreement and such other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this
Assignment Agreement.
(d) Each Assignee Lender will, independently and
without reliance upon Agent, Assignor Lender or any other
Lender and based upon such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the
Credit Agreement and the other Credit Documents.
(e) Each Assignee Lender appoints and authorizes
Agent to take such action as Agent on its behalf and to
exercise such powers under the Credit
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Agreement and the other Credit Documents as Agent is
authorized to exercise by the terms thereof, together with
such powers as are reasonably incidental thereto, all in
accordance with SECTION VII OF THE CREDIT AGREEMENT.
(f) Each Assignee Lender agrees that it will perform
in accordance with their terms all of the obligations which by
the terms of the Credit Agreement and the other Credit
Documents are required to be performed by it as a Lender.
(g) ATTACHMENT I hereto sets forth administrative
information with respect to each Assignee Lender.
10. EFFECT OF THIS ASSIGNMENT AGREEMENT. On and after the
Assignment Effective Date, (a) each Assignee Lender shall be a Lender
with a Proportionate Share equal to the Proportionate Share set forth
under the caption "Proportionate Share After Assignment" opposite such
Assignee Lender's name on ATTACHMENT I hereto and shall have the
rights, duties and obligations of such a Lender under the Credit
Agreement and the other Credit Documents and (b) Assignor Lender shall
be a Lender with a Proportionate Share equal to the Proportionate Share
set forth under the caption "Proportionate Share After Assignment"
opposite Assignor Lender's name on ATTACHMENT I hereto and shall have
the rights, duties and obligations of such a Lender under the Credit
Agreement and the other Credit Documents, or, if the Proportionate
Share of Assignor Lender has been reduced to 0%, Assignor Lender shall
cease to be a Lender and shall have no further obligation to make any
Loans.
11. MISCELLANEOUS. This Assignment Agreement shall be governed
by, and construed in accordance with, the laws of the State of
California. Paragraph headings in this Assignment Agreement are for
convenience of reference only and are not part of the substance hereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Assignment Agreement to be executed by their respective duly authorized
officers as of the date set forth in ATTACHMENT I hereto.
, as
Assignor Lender
By:
Name:
Title:
, as an
Assignee Lender
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By:
Name:
Title:
, as an
Assignee Lender
By:
Name:
Title:
, as an
Assignee Lender
By:
Name:
Title:
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CONSENTED TO AND ACKNOWLEDGED BY:
By:
Name:
Title:
________________________________,
As Agent
By:
Name:
Title:
ACCEPTED FOR RECORDATION
IN REGISTER:
,
As Agent
By:
Name:
Title:
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ATTACHMENT 1
TO ASSIGNMENT AGREEMENT
NAMES, ADDRESSES AND PROPORTIONATE SHARES
OF ASSIGNOR LENDER AND ASSIGNEE LENDERS
AND ASSIGNMENT EFFECTIVE DATE
_____________,____
A. ASSIGNOR LENDER Proportionate Proportionate
--------------- Share Share After
Transferred, Assignment(1)
----------- ----------
_______________ _________________ % _____________ %
Applicable Lending Office:
__________________________
__________________________
__________________________
__________________________
Address for notices:
__________________________
__________________________
__________________________
__________________________
Telephone No:_____________
Telecopier No:____________
Wiring Instructions:
__________________________
__________________________
To be expressed by a percentage rounded to the [seventh]-digit to the right
of the decimal point.
Share of Total Commitment sold by Assignor Lender, and share of Total
Commitment purchased by Assignee Lender.
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B. ASSIGNEE LENDERS Proportionate Proportionate
---------------- Share Share After
Transferred, Assignment(1)
----------- ----------
_______________ _________________ % _____________ %
Applicable Lending Office:
__________________________
__________________________
__________________________
__________________________
Address for notices:
__________________________
__________________________
__________________________
__________________________
Telephone No:_____________
Telecopier No:____________
Wiring Instructions:
__________________________
__________________________
To be expressed by a percentage rounded to the [seventh]-digit to the right
of the decimal point.
Share of Total Commitment sold by Assignor Lender, and share of Total
Commitment purchased by Assignee Lender.
G[1]-
B. ASSIGNEE LENDERS Proportionate Proportionate
---------------- Share Share After
Transferred, Assignment(1)
----------- ----------
(cont'd)
_______________ _________________ % _____________ %
Applicable Lending Office:
__________________________
__________________________
__________________________
__________________________
Address for notices:
__________________________
__________________________
__________________________
__________________________
Telephone No:_____________
Telecopier No:____________
Wiring Instructions:
__________________________
__________________________
C. ASSIGNMENT EFFECTIVE DATE
______________________, ____
To be expressed by a percentage rounded to the [seventh]-digit to the right
of the decimal point.
Share of Total Commitment sold by Assignor Lender, and share of Total
Commitment purchased by Assignee Lender.
G[1]-
ATTACHMENT 2
TO ASSIGNMENT AGREEMENT
FORM OF
ASSIGNMENT EFFECTIVE NOTICE
Reference is made to the Amended and Restated Credit
Agreement, dated as of March 29, 1999, among ADAC Laboratories
("BORROWER"), the financial institutions parties thereto (the
"LENDERS") and ABN AMRO Bank N.V., as agent for the Lenders (in such
capacity, "AGENT"). Agent hereby acknowledges receipt of five executed
counterparts of a completed Assignment Agreement, a copy of which is
attached hereto. [Note: Attach copy of Assignment Agreement.] Terms
defined in such Assignment Agreement are used herein as therein
defined.
1. Pursuant to such Assignment Agreement, you are advised that
the Assignment Effective Date will be __________.
2. Pursuant to such Assignment Agreement, Assignor Lender is
required to deliver to Agent on or before the Assignment Effective Date
the Notes payable to Assignor Lender.
3. Pursuant to such Assignment Agreement, Borrower is required
to deliver to Agent on or before the Assignment Effective Date the
following Notes, each dated _________________ [Insert appropriate
date]:
[Describe each new Note for Assignor Lender and each Assignee
Lender as to principal amount.]
4. Pursuant to such Assignment Agreement, each Assignee Lender
is required to pay its Purchase Price to Assignor Lender at or before
12:00 Noon on the Assignment Effective Date in immediately available
funds.
Very truly yours,
ABN AMRO BANK N.V.
as Agent
By:
Name:
Title:
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